California-Santa Monica-2120/2150 Colorado Avenue Lease - Spieker Properties LP and Broadband Sports Inc.
BASIC LEASE INFORMATION
OFFICE GROSS
LEASE DATE:
----------
(same as date in first paragraph of Lease) As of July 30, 1999
TENANT: Broadband Sports, a Delaware
corporation
TENANT'S NOTICE ADDRESS 1640 Sepulveda Blvd., 5th Floor
(prior to Commencement Date): Los Angeles, CA 90025
TENANT'S NOTICE ADDRESS 2120 Colorado Avenue, 2nd Floor
(After Commencement Date): Santa Monica, CA 90400
TENANT'S BILLING ADDRESS: 2120 Colorado Avenue, 2nd Floor
Santa Monica, CA 90400
TENANT CONTACT: GENERAL COUNSEL PHONE NUMBER: (310) 996-0067
FAX NUMBER: (310) 996-1092
LANDLORD: Spieker Properties, L.P., a
California limited partnership
LANDLORD'S NOTICE ADDRESS: Spieker Properties, L.P.
2150 Colorado Avenue, Ste. 125
Santa Monica, CA 90400
LANDLORD'S REMITTANCE
ADDRESS: Spieker Properties, L.P.
P.O. Box 60077, Department 11671
Los Angeles, California 90060-0077
PROJECT DESCRIPTION: A project commonly known as
Arboretum Courtyard consisting of
two (2) office buildings and
subterranean parking garage
located at 2120 and 2150 Colorado
Avenue, Santa Monica, California,
as shown on Exhibit "B" attached
hereto. The office building at
2150 Colorado Avenue contains
52,669 rentable square feet.
Building Description: A four (4) story office building
containing rentable 80,704 square
feet, located at 2120 Colorado
Avenue, Santa Monica, California,
as shown on Exhibit "B" attached
hereto. Such square footage has
been calculated in accordance with
the Standard Method for Measuring
Floor Area in Office Buildings,
ANSI. Z65.1-1996.
Premises: Approximately 26,635 rentable
square feet of space, consisting
of (i) the entire second floor,
containing 22,402 rentable square
feet ("Second Floor Premises"),
(ii) approximately 4,233 rentable
square feet located on the first
floor of the Building (sometimes
referred to as the "First Floor
Premises"), as shown on Exhibit B
attached hereto.
<PAGE>
Permitted Use: General office, non-medical use and
other legally permitted uses
directly incidental thereto.
Occupancy Density: Two Hundred and Thirteen (213)
people
Parking Rights: Tenant shall have the right to lease
up to twenty-seven (27) unreserved
parking permits in the parking
facility serving the Building.
Tenant shall furthermore have the
right, and the obligation, to lease
(i) twenty-seven (27) reserved
parking permits, and (ii) thirty-six
(36) tandem parking permits. The
reserved parking permits and tandem
parking permits shall be in the
locations designated on Exhibit "E"
attached hereto. To the extent any
additional parking permits are
available (as determined by
Landlord, in its sole discretion,
but on a non-discriminatory basis),
Tenant shall furthermore have the
right to lease an additional number
of parking permits (at the then
current parking rates established by
Landlord and in accordance with the
other terms and conditions published
from time to time by Landlord) on a
non-exclusive, month-to-month basis.
Parking and Parking Charge: Tenant's parking rights shall be at
Landlord's prevailing market rates
(which are currently $170 per month
for a reserved permit, $120 per
month for an unreserved permit and
$110 per month for a tandem permit,
exclusive of taxes), provided that
in no event shall such parking rates
increase by more than four percent
(4%) per annum, calculated on a
cumulative and compounded basis.
Term Commencement Date: Determined in accordance with
Article 2 of this Lease.
Length of Term: Eighty-four (84) months from and
after Term Commencement Date.
Term Expiration Date: On the last day of the month which
is eighty-four (84) months after the
month in which the Term Commencement
Date falls, subject to extension for
the Option Term in accordance with
Section 39B.
Rent:
Base Rent: Months 1-12 $[*] per month ($[*] per rentable square foot per
month)
Months 13-24 $[*] per month ($[*] per rentable square foot per
month)
Months 25-36 $[*] per month ($[*] per rentable square foot per
month)
[*] = THE REDACTED PORTION, INDICATED BY THIS SYMBOL, IS THE SUBJECT OF A
CONFIDENTIAL TREATMENT REQUEST.
<PAGE>
Months 37-48 $[*] per month ($[*] per rentable square foot per
month)
Months 49-60 $[*] per month ($[*] per rentable square foot per
month)
Months 61-72 $[*] per month ($[*] per rentable square foot per
month)
Months 73-84 $[*] per month ($[*] per rentable square foot per
month)
Base Year For Operating Expenses: Calendar Year 2000
Security Deposit: $1,414,581.42, subject to the terms
of Paragraphs 19 and 39D
Tenant's Proportionate Share
Of Project: 19.97%
The foregoing Basic Lease Information is incorporated into and made a part of
this Lease. Each reference in this Lease to any of the Basic Lease Information
shall mean the respective information above and shall be construed to
incorporate all of the terms provided under the particular Lease paragraph
pertaining to such information. In the event of any conflict between the Basic
Lease Information and the Lease, the latter shall control.
LANDLORD TENANT
Spieker Properties, L.P., Broadband Sports,
a California limited partnership a Delaware corporation
By: Spieker Properties, Inc., By: /s/ Tyler Goldman
a Maryland corporation, Its: President
By: /s/ Jeffrey K. Nickell
Its: Vice President By: /s/ Greg S. Hebner
Its: Chief Financial Officer
LEASE
THIS LEASE is made as of the 30th day of July, 1999, by and between Spieker
Properties, L.P., a California limited partnership (hereinafter called
"LANDLORD"), and Broadband Sports, a Delaware corporation (hereinafter called
"TENANT").
1. PREMISES
Landlord leases to Tenant and Tenant leases from Landlord, upon the terms
and conditions hereinafter set forth, those premises (the "PREMISES") outlined
in red on EXHIBIT B and described in the Basic Lease Information. The Premises
shall be all or part of a building (the "BUILDING") and of a project (the
"PROJECT"), which may consist of more than one building and additional
facilities, as described in the Basic Lease Information. The Building and
Project are outlined in blue and green respectively on
[*] = THE REDACTED PORTION, INDICATED BY THIS SYMBOL, IS THE SUBJECT OF A
CONFIDENTIAL TREATMENT REQUEST.
<PAGE>
EXHIBIT B. Landlord and Tenant acknowledge that physical changes may occur from
time to time in the Premises, Building or Project (in accordance with the terms
of this Lease), and that the number of buildings and additional facilities which
constitute the Project may change from time to time, which may result in an
adjustment in Tenant's Proportionate Share, as defined in the Basic Lease
Information, as provided in Paragraph 7.A; provided that Tenant's obligations
under Paragraph 7 below shall not be increased solely as a result of additional
buildings or facilities being added to the Project.
2. POSSESSION AND LEASE COMMENCEMENT
A. CONSTRUCTION OF IMPROVEMENTS. Subject to the terms of the immediately
following paragraph, the term commencement date ("TERM COMMENCEMENT DATE") shall
be the earlier of the date on which: (1) Tenant takes possession of some or all
of the Premises and commences business therefrom; or (2) the improvements to be
constructed or performed in the Premises by Tenant (the "Tenant Improvements")
shall have been "Substantially Completed" in accordance with the plans and
specifications described on EXHIBIT C; or (3) November 1, 1999. Upon Landlord's
request, Tenant shall promptly execute and return to Landlord an accurate
"Start-Up Letter" in which Tenant shall agree, among other things, to acceptance
of the Premises (subject to latent defects) and to the determination of the Term
Commencement Date, in accordance with the terms of this Lease, but Tenant's
failure or refusal to do so shall not negate Tenant's acceptance of the Premises
or affect determination of the Term Commencement Date.
Notwithstanding anything to the contrary contained herein, the Term
Commencement Date shall be delayed in accordance with Section 7 of the Lease
Improvement Agreement (Exhibit C) on the terms and to the extent provided
therein. "Substantially Completed," "Substantial Completion" and similar terms
shall mean that each of the following conditions have been satisfied: (1) the
Tenant Improvements have been completed in accordance with the approved Plans
and all applicable laws and permit conditions, subject only to customary punch-
list items which do not, individually or in the aggregate, materially interfere
with Tenant's ability to commence and operate its business from the Premises as
contemplated in this Lease (such determination shall be made following a walk-
through of the Premises with Landlord, Tenant, and the contractor); (2) the City
of Santa Monica has issued a Certificate of Occupancy or equivalent evidence of
its authorization to occupy the Premises in accordance with all applicable City
ordinances; and (3) Landlord is otherwise prepared to deliver actual possession
of the Premises to Tenant in accordance with the terms of this Lease. The
parties acknowledge and agree that Substantial Completion of the First Floor
Premises may occur prior to the Substantial Completion of the Premises and that
in such event: (a) subject to the conditions below, Tenant may assume
possession of the First Floor Premises without triggering the Term Commencement
Date; (b) upon assuming possession (regardless of whether the Substantial
Completion of the First Floor Premises has occurred), Tenant shall be obligated
to pay pro rata Base Rent with respect to the First Floor Premises (pro rated
based upon the rentable square footage of such premises as a percentage of the
total Premises); (c) upon assuming possession of the First Floor Premises, all
provisions set forth in this Lease, including, without limitation, all
provisions pursuant to which Tenant is required to indemnify Landlord and to
maintain insurance, shall become effective with respect to the First Floor
Premises, provided, however, that Tenant's rent shall be prorated as provided in
clause (b) above and no operating expense pass-through, or other financial
obligations (other than the indemnification obligations noted above) shall
become operative until the Term Commencement Date.
<PAGE>
3. TERM
The term of this Lease (the "TERM") shall commence on the Term Commencement
Date and continue in full force and effect until the Term Expiration Date
(including the Option Term, to the extent applicable under Section 39B), or
until this Lease is terminated as otherwise provided herein. Tenant shall have
the right to use and occupy the Premises in accordance with the terms and
conditions of this Lease from and after the Term Commencement Date (and with
respect to the First Floor Premises, in accordance with Section 2A. above).
4. USE
A. GENERAL. Tenant shall use the Premises for the permitted use specified in
the Basic Lease Information ("PERMITTED USE") and for no other use or purpose.
Tenant shall control Tenant's (and Tenant's assignees' and subtenants')
employees, independent contractors and agents (collectively, "TENANT'S PARTIES")
in such a manner that Tenant and Tenant's Parties cumulatively do not exceed the
occupant density (the "OCCUPANCY DENSITY") specified in the Basic Lease
Information at any time. Furthermore, Tenant agrees not to establish any policy
or otherwise promote any system or other means of reimbursing employees,
independent contractors, subtenants or other persons (collectively, the "Tenant
Parkers") that park in the Building's parking facility without use of a parking
access card on a regular basis for the parking charges incurred by said Tenant
Parkers. If Tenant has not established any policy or system in accordance with
the preceding sentence, but the number of Tenant Parkers using the Building's
parking facility without use of a parking access card on a regular basis
nonetheless materially exceeds .24 parking spaces per 1,000 square feet of the
Premises, Landlord agrees to use its commercially reasonable efforts to find
alternative parking for said Tenant Parkers or employ a new method of parking
(i.e., valet assist) to accommodate the excessive number of Tenant Parkers,
provided that (i) Tenant shall reimburse Landlord for all or a portion of any
additional costs incurred by Landlord to provide said alternative parking (as
reasonably and equitably determined by Landlord), and (ii) Tenant shall not be
in default under this Lease if Landlord is unable to find alternative parking
for said Tenant Parkers or employ a new method of parking. Tenant shall pay the
Parking Charge specified in the Basic Lease Information for spaces leased by
Tenant as Additional Rent (as hereinafter defined) hereunder. Tenant and
Tenant's Parties and any approved subtenants and/or assignees shall have the
nonexclusive right to use, in common with other parties occupying the Building
or Project, the parking areas, driveways and other common areas of the Building
and Project, subject to the terms of this Lease and such reasonable, non-
discriminatory rules and regulations as Landlord may from time to time
prescribe. Landlord reserves the right, without notice or liability to Tenant,
and without the same constituting an actual or constructive eviction, to alter
or modify the common areas from time to time, including the location and
configuration thereof, and the amenities and facilities which Landlord may
determine to provide from time to time, provided that such alterations shall not
materially and adversely interfere with Tenant's use of or access to the
Premises and parking facilities (other than on an incidental or temporary
basis). Landlord shall maintain the Building and Project in a manner consistent
with the manner comparable properties in the Santa Monica Special Office
District ("SMSOD"), as reasonably determined by Landlord, are being maintained
as of the date of this Lease. Subject to the terms and conditions of this Lease,
Tenant shall have access to the Premises and the parking facilities serving the
Premises twenty-four (24) hours per day, three hundred sixty-five (365) days per
year.
All of Landlord's entries and the performance of Landlord's work pursuant
to this Lease (other than the performance of the Tenant Improvements), shall be
scheduled and performed, as applicable, so as to use commercially reasonable
efforts to minimize interference with Tenant's use of and access to the Premises
and parking facilities. Tenant may, subject to Landlord's prior approval,
designate certain areas of the Premises as "Security Areas" should Tenant
require such areas for the purpose of securing certain valuable property or
confidential information. Landlord may only
<PAGE>
enter such Security Areas upon one (1) business days' notice to Tenant which
notice shall specify the date and time of such entry by Landlord (and which
notice may be communicated verbally in person or telephonically); provided,
however, that Landlord may enter the Security Areas without notice to Tenant in
the event of an emergency, in which case Landlord shall provide Tenant with
notice of such entry promptly thereafter. Landlord agrees that all information
(the "Information") obtained in connection with Landlord's entry into the
Security Areas which is identified as "confidential" or "proprietary"
information shall be deemed confidential, shall not be used by Landlord (and
Landlord shall not authorize others to use such Information) other than for the
limited purposes, if any, as required by the Landlord under this Lease, and
shall not be disclosed to any unauthorized person, firm or entity or used for
the benefit of any other person, firm or entity in any manner, whatsoever.
Landlord further agrees that the Information shall not be used, published or
divulged by Landlord to any other person, firm or corporation, in any
advertising or promotion regarding Landlord, or in any other manner or
connection whatsoever without first having obtained the written permission of
Tenant, which permission may be withhold by Tenant in its sole discretion. Upon
expiration or earlier termination of this Lease, Landlord shall return to Tenant
all Information which exists in written or other physical form (and all copies
thereof) under Landlord's control. Landlord agrees to reveal the Information
only to Landlord's representatives, lenders, consultants, attorneys, agents,
prospective purchasers and employees who need to know such Information in
connection with this Lease. Such representatives, lenders, consultants,
attorneys, agents, prospective purchasers and employees shall be informed by
Landlord of the confidential nature of such Information and shall agree to be
bound by the terms and conditions of this Lease. Without Tenant's prior written
consent, Landlord will not communicate with the press regarding any activities,
projects, leases, purchases, or sales of Tenant or any Affiliate (defined in
paragraph 21 below) and will neither issue nor authorize the dissemination of
any publicity or new story relating to Tenant's or any Affiliate's Information.
The obligations imposed on Landlord in this Paragraph 4 shall continue following
the termination of this Lease, and such obligation shall not terminate until
such Information shall be in the public domain, unless such event shall have
occurred as a result of wrongful conduct by Landlord and Landlord's agents,
servants, officers or employees or a breach of the covenants set forth in this
Paragraph.
B. Limitations. Tenant shall not permit any odors, smoke, dust,
gas, substances, noise or vibrations to emanate from the Premises or from any
portion of the common areas as a result of Tenant's or any Tenant's Party's use
thereof in a manner, nor take any other action which, would constitute a
nuisance or would unreasonably disturb, obstruct or endanger any other tenants
or occupants of the Building or Project or elsewhere, or unreasonably interfere
with their use of their respective premises or common areas. Storage outside the
Premises of materials, vehicles or any other items is prohibited. Tenant shall
not use or allow the Premises to be used for any immoral, improper or unlawful
purpose, nor shall Tenant cause or maintain or permit any nuisance in, on or
about the Premises. Tenant shall not commit or suffer the commission of any
waste in, on or about the Premises. Tenant shall not allow any sale by auction
upon the Premises, or place any loads upon the floors, walls or ceilings which
could endanger the structure, or place any harmful substances in the drainage
system of the Building or Project. No waste, materials or refuse shall be dumped
upon or permitted to remain outside the Premises. Landlord shall not be
responsible to Tenant for the non-compliance by any other tenant or occupant of
the Building or Project with any of the above-referenced rules or any other
terms or provisions of such tenant's or occupant's lease or other contract,
provided that Landlord agrees to use its reasonable efforts to enforce said
rules and other terms or provisions in order to ensure compliance therewith.
C. Compliance with Regulations. By entering the Premises,
Tenant accepts the Premises in its "AS-IS" condition existing as of the date of
such entry, subject to any punchlist items, latent defects, structural defects
and any covenants and/or representations set forth in this Lease and Tenant's
rights under any warranties assigned to Tenant pursuant to the Improvement
Agreement attached hereto as Exhibit "C". Except for items which are Landlord's
responsibility hereunder,
<PAGE>
Tenant shall at its sole cost and expense cause its use and occupancy of the
Premises and any Alterations (defined in Paragraph 12 below) performed by or on
behalf of Tenant to strictly comply with all existing or future applicable
municipal, state and federal and other governmental statutes, rules,
requirements, regulations, laws and ordinances, including zoning ordinances and
regulations, and covenants, easements and restrictions of record governing and
relating to the use, occupancy or possession of the Premises, to Tenant's use of
the common areas, or to the use, storage, generation or disposal of Hazardous
Materials (hereinafter defined) caused by Tenant or any employee, agent,
representative, contractor, licensee or invitee of Tenant (collectively
"Regulations"). Tenant shall at its sole cost and expense obtain any and all
licenses or permits necessary for Tenant's use of the Premises. Tenant shall at
its sole cost and expense promptly comply with the requirements of any board of
fire underwriters or other similar body now or hereafter constituted. Tenant
shall not do or permit anything to be done in, on, under or about the Project or
bring or keep anything which will in any way increase the rate of any insurance
upon the Premises, Building or Project or upon any contents therein or cause a
cancellation of said insurance or otherwise affect said insurance in any manner;
provided, however, that the foregoing shall not apply to Tenant's occupancy of
the Premises for general office uses at the density otherwise permitted pursuant
to this Lease. Tenant shall indemnify, defend (by counsel reasonably acceptable
to Landlord), protect and hold Landlord harmless from and against any loss,
cost, expense, damage, attorneys' fees or liability arising out of the failure
of Tenant to comply with any Regulation. Tenant's obligations pursuant to the
foregoing indemnity shall survive the expiration or earlier termination of this
Lease.
D. Hazardous Materials. As used in this Lease, "Hazardous
Materials" shall include, but not be limited to, hazardous, toxic and
radioactive materials and those substances defined as "hazardous substances,"
"hazardous materials," "hazardous wastes," "toxic substances," or other similar
designations in any Regulation. Tenant shall not cause, or allow any of Tenant's
Parties to cause, any Hazardous Materials to be handled, used, generated,
stored, released or disposed of in, on, under or about the Premises, the
Building or the Project or surrounding land or environment in violation of any
Regulations. Tenant must obtain Landlord's written consent prior to the
introduction of any Hazardous Materials onto the Project. Notwithstanding the
foregoing, Tenant may handle, store, use and dispose of products containing
small quantities of Hazardous Materials for "general office purposes" (such as
toner for copiers) to the extent customary and necessary for the Permitted Use
of the Premises; provided that Tenant shall always handle, store, use, and
dispose of any such Hazardous Materials in a safe and lawful manner and never
allow such Hazardous Materials to contaminate the Premises, Building, or Project
or surrounding land or environment. Tenant shall immediately notify Landlord in
writing of any Hazardous Materials' contamination of any portion of the Project
of which Tenant becomes aware, whether or not caused by Tenant. Landlord shall
have the right at all reasonable times to inspect the Premises (subject to the
restrictions on access to Security Areas as provided above) and to conduct tests
and investigations to determine whether Tenant is in compliance with the
foregoing provisions, the costs of all such inspections, tests and
investigations to be borne by Tenant to the extent it is determined Tenant is
not in compliance with said provisions. Tenant shall indemnify, defend (by
counsel reasonably acceptable to Landlord), protect and hold Landlord and its
directors, officers, employees, agents, successors and assigns harmless from and
against any and all claims, liabilities, losses, costs, loss of rents, liens,
damages, injuries or expenses (including attorneys' and consultants' fees and
court costs), demands, causes of action, or judgments directly or indirectly
arising out of or related to the use, generation, storage, release, or disposal
of Hazardous Materials by Tenant or any of Tenant's Parties in, on, under or
about the Premises, the Building or the Project or surrounding land or
environment, which indemnity shall include, without limitation, damages for
personal or bodily injury, property damage, damage to the environment or natural
resources occurring on or off the Premises, losses attributable to diminution in
value or adverse effects on marketability, the cost of any investigation,
monitoring, government oversight, repair, removal, remediation, restoration,
abatement, and disposal, and the preparation of any closure or other required
plans, whether such action is required or necessary prior to or following the
expiration or earlier termination of this Lease.
<PAGE>
Neither the consent by Landlord to the use, generation, storage, release or
disposal of Hazardous Materials nor the strict compliance by Tenant with all
laws pertaining to Hazardous Materials shall excuse Tenant from Tenant's
obligation of indemnification pursuant to this Paragraph 4.D. Tenant's
obligations pursuant to the foregoing indemnity shall survive the expiration or
earlier termination of this Lease.
E. Landlord shall indemnify, defend and hold harmless Tenant,
its affiliates, their respective directors, officers, employees and agents
harmless from and against any and all claims, judgments, damages, penalties,
fines, costs, liabilities or losses and attorneys' fees arising out of any
Hazardous Material in, on or about the Project or the Premises which was
created, handled, placed, stored, used, transported or disposed of by Landlord,
excluding, however, any Hazardous Material whose presence was caused by Tenant
or its affiliates or their respective agents. Landlord furthermore agrees to
waive and release Tenant from any liability due to the creation, handling,
placement, storage, use, transportation or disposal of Hazardous Materials by
any predecessor owner of the Building or any of their agents, employees,
tenants, successors or assigns, except to the extent arising from any act of
Tenant or any of Tenant's Parties (i) in violation of the terms of Paragraph 4D
above, or (ii) which exacerbates or aggravates any Hazardous Materials in
existence on the Project or surrounding land as of the date hereof.
F. To the extent required by any Regulations, Landlord agrees
to (i) commence to remove, restore, remediate and/or otherwise abate the
Hazardous Materials described in Paragraph 4E, and (ii) diligently pursue such
removal, restoration, remediation or abatement to completion.
G. Notwithstanding anything to the contrary set forth in this
Lease, the provisions of this Section 4 shall survive the expiration or earlier
termination of this Lease.
5. RULES AND REGULATIONS
Tenant shall faithfully observe and comply with the building rules and
regulations attached hereto as Exhibit A and any other reasonable, non-
discriminatory rules and regulations and any modifications or additions thereto
which Landlord may from time to time prescribe in writing for the purpose of
maintaining the proper care, cleanliness, safety, traffic flow and general order
of the Premises or the Building or Project. Tenant shall cause Tenant's Parties
to comply with such rules and regulations. Landlord shall not be responsible to
Tenant for the non-compliance by any other tenant or occupant of the Building or
Project with any of such rules and regulations, any other tenant's or occupant's
lease or any Regulations, provided that Landlord agrees to use its reasonable
efforts to enforce said rules and regulations in a uniform, non-discriminatory
manner against all tenants of the Project.
Notwithstanding anything to the contrary contained in this Lease,
Landlord agrees that the rules and regulations for the Project shall not be (i)
modified or enforced in any way by Landlord so as to unreasonably and materially
interfere with the permitted use set forth in this Lease or Tenant's access to
the Premises, Building or Project parking facility, or (ii) discriminatorily
enforced against Tenant and not against other tenants of the Project. Landlord
agrees that none of the rules and regulations for the Project shall be used to
prohibit the conduct of any business from the Premises which Tenant is permitted
to conduct, unless said conduct constitutes a nuisance to other tenants of the
Project or materially injures or impairs the reputation or image of the Project
as a professional office park. In the event any other tenant or occupant fails
to comply with the rules and regulations for the Project, and such non-
compliance unreasonably and materially interferes with Tenant's use of the
Premises, Landlord shall use its reasonable efforts to cause such other tenants
and/or occupants to comply with such rules and regulations.
<PAGE>
6. RENT
A. Base Rent. Tenant shall pay to Landlord and Landlord shall
receive, without notice or demand, except as otherwise provided herein,
commencing on the Term Commencement Date and continuing throughout the balance
of the Term, Base Rent as specified in the Basic Lease Information, payable in
monthly installments in advance on or before the first day of each calendar
month, in lawful money of the United States, without deduction or offset
whatsoever, except as otherwise provided herein, at the Remittance Address
specified in the Basic Lease Information or to such other place as Landlord may
from time to time designate in writing. Base Rent for the first full month
following the Rent Commencement Date shall be paid by Tenant upon Tenant's
execution of this Lease. If the obligation for payment of Base Rent commences on
a day other than the first day of a month, then Base Rent shall be prorated and
the prorated installment shall be paid on the first day of the calendar month
next succeeding the Rent Commencement Date. As used herein, the term "Base Rent"
shall mean the Base Rent specified in the Basic Lease Information as it may be
so adjusted from time to time. Notwithstanding anything to the contrary
contained herein, in the event the Occupancy Density in the Premises exceeds 186
people (7 people per 1,000 rentable square feet in the Premises) (the "Threshold
Figure") at any time, from and after the date the Occupancy Density first
exceeds the Threshold Figure, the Base Rent shall be increased by an amount
equal to $.05 per rentable square foot of the Premises for the balance of the
Term (including any extension(s) thereof), regardless of whether the Occupancy
Density is thereafter decreased below the Threshold Figure.
B. Additional Rent. All monies other than Base Rent required to
be paid by Tenant hereunder, including, but not limited to, Tenant's
Proportionate Share of Operating Expenses, as specified in Paragraph 7 of this
Lease, charges to be paid by Tenant under Paragraph 15, the interest and late
charge described in Paragraphs 26.C. and D., and any monies spent by Landlord
pursuant to Paragraph 30, shall be considered additional rent ("ADDITIONAL
RENT"). "RENT" shall mean Base Rent and Additional Rent.
7. OPERATING EXPENSES
A. Operating Expenses. In addition to the Base Rent required to
be paid hereunder, beginning with the expiration of the Base Year specified in
the Basic Lease Information (the "Base Year"), Tenant shall pay as Additional
Rent, Tenant's Proportionate Share of the Project, as defined in the Basic Lease
Information, of increases in Operating Expenses (defined below) over the
Operating Expenses incurred by Landlord during the Base Year (the "Base Year
Operating Expenses"), in the manner set forth below. Landlord and Tenant
acknowledge that if the number of buildings which constitute the Project
increases or decreases, or if physical changes are made to the Premises,
Building or Project or the configuration of any thereof (in accordance with the
terms of this Lease), Landlord shall, to the extent appropriate, reasonably
adjust Tenant's Proportionate Share of the Project to reflect the change,
provided that Tenant's obligations under this Paragraph 7 shall not be increased
as a result thereof. "Operating Expenses" shall mean all expenses and costs of
every kind and nature which Landlord shall pay, because of or in connection with
the ownership, management, maintenance, repair, preservation, replacement and
operation of the Project and its supporting facilities and such additional
facilities now and in subsequent years as may be determined by Landlord to be
reasonably necessary or desirable to the Project (as determined in a reasonable
manner in accordance with sound real estate management principles) other than
those expenses and costs which are specifically attributable to Tenant or which
are expressly made the financial responsibility of Landlord or specific tenants
of the Building or Project pursuant to this Lease. Operating Expenses shall
include, but are not limited to, the following (each without duplication of any
other Operating Expense item):
1. Taxes. All real property taxes and assessments,
possessory interest taxes, sales taxes, personal property taxes, business
or license taxes or fees, gross receipts taxes, service payments in lieu of
such taxes or fees, annual or periodic
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license or use fees, excises, transit charges, and other impositions,
general and special, ordinary and extraordinary, unforeseen as well as
foreseen, of any kind (including fees "in-lieu" of any such tax or
assessment) which are now or hereafter assessed, levied, charged,
confirmed, or imposed by any public authority upon the Project, its
operations or the Rent (or any portion or component thereof), or any tax,
assessment or fee imposed in substitution, partially or totally, of any of
the above. Operating Expenses shall also include any taxes, assessments,
reassessments, or other fees or impositions with respect to the
development, leasing, management, maintenance, alteration, repair, use or
occupancy of the Premises, Building or Project or any portion thereof,
including, without limitation, by or for Tenant, and all increases therein
or reassessments thereof whether the increases or reassessments result from
increased rate and/or valuation (whether upon a transfer of the Building or
Project or any portion thereof or any interest therein or for any other
reason). Operating Expenses shall not include inheritance or estate taxes
imposed upon or assessed against the interest of any person in the Project,
or taxes computed upon the basis of the net income of any owners of any
interest in the Project. If it shall not be lawful for Tenant to reimburse
Landlord for all or any part of such taxes, the monthly rental payable to
Landlord under this Lease shall be revised to net Landlord the same net
rental after imposition of any such taxes by Landlord as would have been
payable to Landlord prior to the payment of any such taxes. There shall be
included within the definition of "Taxes" with respect to any calendar year
only the amount currently payable on any bonds or assessments, including
interest for such tax calendar year or the current annual installment for
such calendar year, and such shall be paid in the maximum number of
installments allowable. Tax refunds shall be credited against Taxes and
refunded to Tenant, regardless of when received, based on the year to which
the refund is applicable. For purposes of this Lease, Taxes shall be
calculated as if the tenant improvements in the Project were fully
constructed and the Project, the Building, the parking facility and all
tenant improvements in the Project were fully assessed for real estate tax
purposes. Notwithstanding anything to the contrary contained in the Lease,
Taxes shall not include (i) any excess profits taxes, franchise taxes, gift
taxes, capital stock taxes, inheritance and succession taxes, estate taxes,
federal and state income taxes, and other taxes to the extent applicable to
Landlord's general or net income (as opposed to rents or receipts), (ii)
any items for which Tenant or other tenants are liable pursuant to their
lease (other than as an Operating Expense pass through item), (iii)
penalties incurred as a result of Landlord's negligence, inability or
unwillingness to make payments of, and/or to file any tax or informational
returns with respect to, any real property taxes or assessment, when due,
(iv) taxes on tenant improvements in any space in the Building or the
Project based upon an assessed value in excess of $35.00 per rentable
square foot; or (v) reserves for taxes.
a) Proposition 13 Protection. Despite any other provision of
this Lease, if during the initial Term, any sale, refinancing, or
change in ownership of the Project is consummated and, as a result,
all or part of the Project is reassessed (Reassessment) for real
estate tax purposes by the appropriate government authority under the
terms of Proposition 13 (as adopted by the voters of the State of
California in the June 1978 election), the terms of this Paragraph
7(A)(1)(a) shall apply.
I. For purposes of this Paragraph 7(A)(1)(a), the term "Tax Increase"
shall mean the product of (i) that portion of the Taxes, as calculated
immediately following the Reassessment, that is attributable solely to the
Reassessment, multiplied by (ii) the Prop. 13 Percentage Protection (defined
below). The term "Prop. 13 Percentage Protection" shall mean (I) with respect to
a Reassessment which occurs during the first 36 months of the Term, 100%, and
(II) with respect to a Reassessment which occurs during months 37-84 of the
Term, and during any Option Term, 0%. Accordingly, the Tax Increase shall not
include any portion of the Taxes, as calculated immediately following the
Reassessment, that is:
(1) Attributable to the initial assessment of the value of the
Project, the base, shell and core of the Project, or the tenant
improvements located in the Project or is otherwise considered to be a
tax expense incurred during the Base Year;
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(2) Attributable to assessments pending immediately before the
Reassessment that were conducted during, and included in, that
Reassessment or that were otherwise rendered unnecessary following the
Reassessment; or
(3) Attributable to the annual inflationary increase in real estate
taxes.
II. During the first three (3) years of the initial Term, Tenant shall not
be obligated to pay the Tax Increase relating to a Reassessment occurring during
the first three (3) years of the initial Term.
III. The amount of Taxes that Tenant is not obligated to pay or shall not
be obligated to pay during the Term in connection with a particular Reassessment
under the terms of this Paragraph 7(A)(1)(a) shall be referred to as the
"Proposition 13 Protection Amount." If a Reassessment is reasonably foreseeable
by Landlord and the Proposition 13 Protection Amount attributable to that
Reassessment may be reasonably quantified or estimated for each Lease Year
beginning with the Lease Year in which the Reassessment will occur, the terms of
this Paragraph 7(A)(1)(a) shall apply to each such Reassessment. On notice to
Tenant, Landlord shall have the right to purchase the Proposition 13 Protection
Amount relating to the applicable Reassessment (Applicable Reassessment), at any
time during the Term, by paying to Tenant an amount equal to the Proposition 13
Purchase Price, as defined below, as long as the right of any successor of
Landlord to exercise its right to purchase the Proposition 13 Protection Amount
shall not apply to any Reassessment that results from the event under which that
successor became Landlord under this Lease. As used in this Lease, the term
"Proposition 13 Purchase Price" shall mean the present value of the Proposition
13 Protection Amount remaining during the Term, as of the date of payment of the
Proposition 13 Purchase Price by Landlord. The present value shall be calculated
by:
(1) Using the portion of the Proposition 13 Protection Amount
attributable to each remaining Lease Year assuming no additional Tax
Increases (as though the portion of that Proposition 13 Protection
Amount benefited Tenant at the end of each Lease Year) as the amounts
to be discounted; and
(2) Using discount rates for each amount to be discounted equal to:
(A) The average rates of yield for United States Treasury
Obligations with maturity dates as close as reasonably possible
to the end of each Lease Year during which the portions of the
Proposition 13 Protection Amount would have benefited Tenant,
using the rates in effect as of Landlord's exercise of its right
to purchase, as set forth in this Paragraph 7(A)(1)(a); plus
(B) two percent (2%) per annum.
On payment to Tenant of the Proposition 13 Purchase Price,
subparagraph (II) of this Paragraph 7(A)(1)(a) shall not apply to any
Taxes attributable to the Applicable Reassessment. Because Landlord
is estimating the Proposition 13 Purchase Price because a Reassessment
has not yet occurred, an adjustment shall be made when a Reassessment
occurs. If Landlord has underestimated the Proposition 13 Purchase
Price, Landlord shall, on notice to Tenant, credit Tenant's Rent next
due with the amount of that underestimation. If Landlord has
overestimated the Proposition 13 Purchase Price, Landlord shall, on
notice to Tenant, increase Tenant's Rent next due by the amount of the
overestimation. Landlord will supply to Tenant, at the time such
increase notice is given, documentation supporting the basis for its
conclusion about any such underestimation or overestimation.
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(2) Insurance. All insurance premiums and costs, including,
but not limited to, any deductible amounts, premiums and other costs of
insurance incurred by Landlord, including for the insurance coverage set
forth in Paragraph 8.A. herein.
(3) Common Area Maintenance.
(a) Repairs, replacements, and general maintenance of
and for the Building and Project and public and common areas and
facilities of and comprising the Building and Project, including, but
not limited to, the roof and roof membrane, windows, elevators,
restrooms, conference rooms, health club facilities, lobbies,
mezzanines, balconies, mechanical rooms, building exteriors, alarm
systems, pest extermination, landscaped areas, parking and service
areas, driveways, sidewalks, loading areas, fire sprinkler systems,
sanitary and storm sewer lines, utility services,
heating/ventilation/air conditioning systems, electrical, mechanical
or other systems, telephone equipment and wiring servicing, plumbing,
lighting, and any other items or areas which affect the operation or
appearance of the Building or Project, except for: those items
expressly made the financial responsibility of Landlord pursuant to
Paragraph 10 hereof; those items to the extent paid for by the
proceeds of insurance; and those items attributable solely or jointly
to specific tenants of the Building or Project; and those items
specifically excluded from Operating Expenses.
(b) Repairs, replacements, and general maintenance
shall include the cost of any capital improvements made to or capital
assets acquired for the Project or Building that in Landlord's
discretion may reasonably reduce any other Operating Expenses (only to
the extent of cost savings), including present or future repair work,
are reasonably necessary for the health and safety of the occupants of
the Building or Project, or are required to comply with any Regulation
enacted after the date of this Lease, such costs or allocable portions
thereof to be amortized over their respectful useful life (as
reasonably determined by Landlord), together with interest on the
unamortized balance at the publicly announced "prime rate" charged by
Wells Fargo Bank, N.A. (San Francisco) or its successor at the time
such improvements or capital assets are constructed or acquired, plus
two (2) percentage points, or in the absence of such prime rate, then
at the U.S. Treasury six-month market note (or bond, if so designated)
rate as published by any national financial publication selected by
Landlord, plus two (2) percentage points, but in no event more than
the maximum rate permitted by law.
(c) Payment under or for any easement, license,
permit, operating agreement, declaration, restrictive covenant or
instrument relating to the Building or Project.
(d) All expenses and rental related to services and
costs of supplies, materials and equipment used in operating, managing
and maintaining the Premises, Building and Project, the equipment
therein and the adjacent sidewalks, driveways, parking and service
areas, including, without limitation, expenses related to service
agreements regarding security, fire and other alarm systems,
janitorial services, window cleaning, elevator maintenance, Building
exterior maintenance, landscaping and expenses related to the
administration, management and operation of the Project, including
without limitation salaries, wages and benefits of personnel up to the
level of the Project director (and/or vice president responsible for
the Project) and building engineer and fair market management office
rent (to the extent that the activities of such individuals relate to
the management and operation of the Project).
(e) The cost of supplying any services and utilities
which benefit all or a portion of the Premises, Building or Project,
including without limitation services and utilities provided pursuant
to Paragraph 15 hereof.
(f) Reasonable legal expenses and the cost of audits
by certified public accountants (other than in connection with
defending operating expense audits performed by other tenants);
provided, however, that legal expenses chargeable as
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Operating Expenses shall not include the cost of negotiating leases,
collecting rents, evicting tenants nor shall it include costs incurred
in legal proceedings with or against any tenant or to enforce the
provisions of any lease.
(g) The deductible portion of any repair costs covered by
earthquake insurance, provided that said deductible portion shall be
amortized over a ten (10) year period.
(h) A management and accounting cost recovery fee equal to
three percent (3%) of the sum of the Project's base rents and
Operating Expenses to the extent not included in such base rents
(other than such management and accounting fee).
If the rentable area of the Project is not at least 95% occupied during any
fiscal year of the Term, an adjustment shall be made in computing the variable
components of Operating Expenses for such year (to reflect the amount of
Operating Expenses which would have been incurred by Landlord had the Project
been at least 95% occupied) so that Tenant pays an equitable portion of all
variable items (e.g., utilities, janitorial services and other component
expenses that are affected by variations in occupancy levels) of Operating
Expenses, as reasonably determined by Landlord; provided, however, that in no
event shall Landlord be entitled to collect in excess of one hundred percent
(100%) of the total Operating Expenses from all of the tenants in the Project.
Furthermore, Landlord agrees to manage the entire Project on a consistent and
non-discriminatory basis as to all of the tenants of the Project.
Operating Expenses shall not include the cost of providing tenant
improvements or other specific costs incurred for the account of, separately
billed to and paid by specific tenants of the Building or Project, the initial
construction cost of the Building, or debt service on any mortgage or deed of
trust recorded with respect to the Project other than pursuant to Paragraph
7.A.(3)(b) above. Notwithstanding anything herein to the contrary, in any
instance wherein Tenant uses excessive services of the Project or otherwise
creates a greater burden on the operation of the Project than other tenants,
except as specifically allowed by this Lease (such determination to be adjusted
based on relative square footages of the space leased by Tenant and other
tenants), Landlord shall have the right to reasonably allocate any such
additional costs in any manner Landlord deems reasonably appropriate.
Landlord (x) shall not collect or be entitled to collect from Tenant an
amount in excess of Tenant's Proportionate Share of one hundred percent (100%)
of the Operating Expenses actually paid or incurred by Landlord; and (y) shall
reduce the amount of the Operating Expenses by any refund or discount received
by Landlord in connection with any expenses previously included in the Operating
Expenses (such reduction to be credited to Tenant in the year in which the
refund or discount is received by Landlord). Notwithstanding the foregoing, for
purposes of this Lease, the Operating Expenses shall not, however, include:
I. bad debt expenses and interest, principal, points and fees on debts
(except in connection with the financing of items which may be included in the
Operating Expenses) or amortization on any mortgage or mortgages or any other
debt instrument encumbering the Building or the Project;
II. marketing costs, including leasing commissions, attorneys' fees in
connection with the negotiation and preparation of letters, deal memos, letters
of intent, leases, subleases and/or assignments, space planning costs, and other
costs and expenses incurred in connection with lease, sublease and/or assignment
negotiations and transactions with present or prospective tenants or other
occupants of the Project, including attorneys' fees and other costs and
expenditures incurred in connection with disputes with present or prospective
tenants or other occupants of the Project;
III. costs of inspecting and correcting defects in the Project (including
without limitation, defects discovered as a result of earthquake damage) and
costs, including
<PAGE>
permit, license and inspection costs, incurred with respect to the installation
of other tenants' or occupants' improvements made for tenants or other occupants
in the Project or incurred in renovating or otherwise improving, decorating,
painting or redecorating vacant space for tenants or other occupants in the
Project;
IV. the cost of providing any service directly to and paid directly by
any tenant;
V. any costs expressly excluded from the Operating Expenses elsewhere in
this Lease;
VI. costs of any items (including, but not limited to, costs incurred by
Landlord for the repair or damage to the Project or Building) to the extent
Landlord receives reimbursement from insurance proceeds (such proceeds to be
deducted from the Operating Expenses in the year in which received) or from a
third party (such proceeds to be credited to the Operating Expenses in the year
in which received, except that any deductible amount under any insurance policy
shall be included within the Operating Expenses of the Project);
VII. Costs of a capital nature, including, without limitation, capital
improvements, capital repairs and capital equipment; except for those (i)
acquired to reduce the Operating Expenses (amortized at an annual rate
reasonably calculated to equal the amount of the Operating Expenses to be saved
in each calendar year throughout the Term of the Lease, as reasonably determined
at the time Landlord elected to proceed with the capital improvement or
acquisition of the capital equipment to reduce the Operating Expenses), together
with interest at the actual interest rate incurred by Landlord, or (ii) incurred
after the Term Commencement Date in order to comply with any governmental law or
regulation that was enacted subsequent to the Term Commencement Date (but
specifically not including any re-enactment or subsequent codification, local or
otherwise, of any laws or regulations existing as of the Term Commencement Date,
including without limitation the Americans with Disabilities Act or any state or
local codifications thereof) provided that such capital costs shall be amortized
over their useful life, together with interest at the actual interest rate
incurred by Landlord; all other capital expenditures and improvements shall be
excluded from the Operating Expenses;
VIII. rentals and other related expenses for leasing a HVAC system,
elevators, or other items (except when needed in connection with normal repairs
and maintenance of the Project) which if purchased, rather than rented, would
constitute a capital improvement not included in the Operating Expenses pursuant
to this Lease;
IX. depreciation, amortization and interest payments, except as
specifically included in the Operating Expenses pursuant to the terms of this
Lease and except on materials, tools, supplies and vendor-type equipment
purchased by Landlord to enable Landlord to supply services Landlord might
otherwise contract for with a third party, where such depreciation, amortization
and interest payments would otherwise have been included in the charge for such
third party's services, all as determined in accordance with generally accepted
accounting principles, consistently applied, and when depreciation or
amortization is permitted or required, the item shall be amortized over its
reasonably anticipated useful life;
X. costs incurred by Landlord for alterations (including structural
additions), repairs, replacements, equipment and tools which are of a capital
nature and/or which are considered capital improvements or replacements under
generally accepted accounting principles, consistently applied, except as
specifically included in the Operating Expenses pursuant to the terms of this
Lease;
XI. expenses in connection with services or other benefits which are not
offered to Tenant or for which Tenant is charged for directly but which are
provided to another tenant or occupant of the Project, without charge;
<PAGE>
XII. costs incurred by Landlord due to the violation by Landlord or
any tenant of the terms and conditions of any lease of space in the Project;
XIII. overhead and profit increment paid to Landlord or to subsidiaries
or affiliates of Landlord for goods and/or services in the Project to the extent
the same exceeds the costs of such by unaffiliated third parties on a
competitive basis;
XIV. Landlord's general corporate overhead and general and
administrative expenses, excluding on-site management to the level of Project
director (and/or vice president responsible for the Project) and Project
engineer and on-site accounting attributable to the Project, but including costs
associated with the operation of the business of the ownership or entity which
constitutes "Landlord," as distinguished from the costs of building operations,
including, but not limited to, partnership accounting and legal matters, costs
of defending any lawsuits with any mortgagee, costs of selling, syndicating,
financing, mortgaging or hypothecating any of Landlord's interest in the
Project, costs of any disputes between Landlord and its employees or with its
Project management;
XV. advertising and promotional expenditures, and costs of signs in
or on the Project identifying the owner of the Project or other tenants' signs,
except for Project directories or Project standard signage;
XVI. electric power costs or other utility costs for which any tenant
directly contracts with the local public service company (but Landlord shall
have the right to "gross up" as if the floor was vacant);
XVII. tax penalties incurred as a result of Landlord's negligence,
inability or unwillingness to make payments or file returns when due;
XVIII. costs arising from Landlord's charitable or political
contributions;
XIX. costs of installing, maintaining and operating any specialty
service operated by landlord including without limitation, any luncheon club or
athletic facility, or the repair thereof;
XX. costs necessitated by or resulting from the gross negligence of
Landlord, or any of its agents, employees or independent contractors;
XXI. any ground lease rental;
XXII. costs of capital acquisition of sculptures, paintings or other
objects of art;
XXIII. costs of earthquake insurance (except to the extent maintained in
the Base Year);
XXIV. notwithstanding any contrary provision of this Lease, including
without limitation, any provision relating to capital expenditures, costs
arising from the presence of "hazardous materials," "hazardous substances,"
and/or "toxic substances," as defined in any federal, state, county or local
law, including asbestos, in or about the Building and the Project or in the
clean-up, remediation, or implementation of any response actions associated
therewith; and
XXV. management, administration, or monitoring fees to the extent in
excess of that specifically includable in Operating Expenses.
XXVI. costs arising from latent defects in the Base Building Work.
The above enumeration of services and facilities shall not be deemed to
impose an obligation on Landlord to make available or provide such services or
facilities except to the extent if any that Landlord has specifically agreed
elsewhere in this Lease to make the same available or provide the same. Without
limiting the generality of the
<PAGE>
foregoing, Tenant acknowledges and agrees that it shall be responsible for
providing adequate security for its use of the Premises, the Building and the
Project and that Landlord shall have no obligation or liability with respect
thereto, except to the extent of Landlord's negligence or willful misconduct or
to the extent that Landlord has specifically agreed elsewhere in this Lease to
provide the same.
B. Payment of Estimated Operating Expenses. "Estimated
Operating Expenses" for any particular year shall mean Landlord's estimate of
the Operating Expenses for such fiscal year made with respect to such fiscal
year as hereinafter provided. Landlord shall have the right from time to time to
revise its fiscal year and interim accounting periods so long as the periods as
so revised are reconciled with prior periods in a reasonable manner and do not
result in any net increase to Tenant. During the last month of each fiscal year
during the Term, or as soon thereafter as practicable, Landlord shall give
Tenant written notice of the Estimated Operating Expenses for the ensuing fiscal
year. Tenant shall pay Tenant's Proportionate Share of the difference between
Estimated Operating Expenses and Base Year Operating Expenses with installments
of Base Rent for the fiscal year to which the Estimated Operating Expenses
applies in monthly installments on the first day of each calendar month during
such year, in advance. Such payment shall be construed to be Additional Rent for
all purposes hereunder. If at any time during the course of the fiscal year,
Landlord reasonably determines that Operating Expenses are projected to vary
from the then Estimated Operating Expenses by more than five percent (5%),
Landlord may, by written notice to Tenant, revise the Estimated Operating
Expenses for the balance of such fiscal year, and Tenant's monthly installments
for the remainder of such year shall be adjusted so that by the end of such
fiscal year Tenant has paid to Landlord Tenant's Proportionate Share of the
revised difference between Estimated Operating Expenses and Base Year Operating
Expenses for such year, such revised installment amounts to be Additional Rent
for all purposes hereunder.
C. Computation of Operating Expense Adjustment. "Operating
Expense Adjustment" shall mean the difference between Estimated Operating
Expenses and actual Operating Expenses for any fiscal year, over Base Year
Operating Expenses, determined as hereinafter provided. Within one hundred
twenty (120) days after the end of each fiscal year, or as soon thereafter as
practicable, Landlord shall deliver to Tenant a reasonably detailed statement of
actual Operating Expenses for the fiscal year just ended, accompanied by a
computation of Operating Expense Adjustment. If such statement shows that
Tenant's payment based upon Estimated Operating Expenses is less than Tenant's
Proportionate Share of actual increases in Operating Expenses over the Base Year
Operating Expenses, then Tenant shall pay to Landlord the difference within
thirty (30) days after receipt of such statement, such payment to constitute
Additional Rent for all purposes hereunder. If such statement shows that
Tenant's payments of Estimated Operating Expenses exceed Tenant's Proportionate
Share of actual increases in Operating Expenses over the Base Year Operating
Expenses, then (provided that Tenant is not in default under this Lease, beyond
applicable notices and cure periods) Landlord shall pay to Tenant the difference
within thirty (30) days after delivery of such statement to Tenant. If this
Lease has been terminated or the Term hereof has expired prior to the date of
such statement, then the Operating Expense Adjustment shall be paid by the
appropriate party within thirty (30) days after the date of delivery of the
statement. Tenant's obligation to pay increases in Operating Expenses over the
Base Year Operating Expenses shall commence on January 1 of the year succeeding
the Base Year. Should this Lease terminate at any time other than the last day
of the fiscal year, Tenant's Proportionate Share of the Operating Expense
Adjustment shall be prorated based on a month of 30 days and the number of
calendar months during such fiscal year that this Lease is in effect. Tenant
shall in no event be entitled to any credit if Operating Expenses in any year
are less than Base Year Operating Expenses. Notwithstanding anything to the
contrary contained in Paragraph 7.A or 7.B, Landlord's failure to provide any
notices or statements within the time periods specified in those paragraphs
shall in no way excuse Tenant from its obligation to pay Tenant's Proportionate
Share of increases in Operating Expenses.
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D. Gross Lease. This shall be a gross Lease; however, it is
intended that Base Rent shall be paid to Landlord absolutely net of all costs
and expenses other than Operating Expenses each year equal to Tenant's
Proportionate Share of Base Year Operating Expenses, except as otherwise
specifically provided to the contrary in this Lease. The provisions for payment
of increases in Operating Expenses and the Operating Expense Adjustment are
intended to pass on to Tenant and reimburse Landlord for all costs and expenses
of the nature described in Paragraph 7.A. incurred in connection with the
ownership, management, maintenance, repair, preservation, replacement and
operation of the Building and/or Project and its supporting facilities and such
additional facilities, in excess of the Base Year Operating Expenses, now and in
subsequent years as may be reasonably determined by Landlord to be necessary or
desirable to the Building and/or Project.
E. Tenant Audit. If Tenant shall dispute the amount set forth
in any statement provided by Landlord under Paragraph 7.B. or 7.C. above, Tenant
shall have the right, not later than one hundred eighty (180) days following
receipt of such statement and upon the condition that Tenant shall first deposit
with Landlord the full amount in dispute, to cause Landlord's books and records
with respect to Operating Expenses for such fiscal year to be audited by
certified public accountants selected by Tenant and subject to Landlord's
reasonable right of approval. The Operating Expense Adjustment shall be
appropriately adjusted on the basis of such audit. If such audit discloses a
liability for a refund in excess of three percent (3%) of Tenant's Proportionate
Share of the Operating Expenses previously reported, the cost of such audit
shall be borne by Landlord; otherwise the cost of such audit shall be paid by
Tenant. If Tenant shall not request an audit in accordance with the provisions
of this Paragraph 7.E. within one hundred eighty (180) days after receipt of
Landlord's statement provided pursuant to Paragraph 7.B. or 7.C., such statement
shall be final and binding for all purposes hereof.
8. INSURANCE AND INDEMNIFICATION
A. Landlord's Insurance. All insurance maintained by Landlord
shall be for the sole benefit of Landlord and under Landlord's sole control.
(1) Property Insurance. Landlord agrees to maintain All
Perils property insurance insuring the Building at all times against damage
or destruction due to risk including fire, vandalism, and malicious
mischief in an amount not less than the replacement cost thereof, in the
form and with deductibles and endorsements as selected by Landlord (in its
reasonable discretion). At its election, Landlord may (but shall have no
obligation to) obtain earthquake and/or pollution, insurance in amounts
selected by Landlord (in its reasonable discretion). Landlord represents to
Tenant that as of the date of this Lease, Landlord carries "All-Perils"
coverage and rental income insurance.
(2) Optional Insurance. Landlord, at Landlord's option,
may also (but shall have no obligation to) carry insurance against loss of
rent, in an amount equal to the amount of Base Rent and Additional Rent
that Landlord could be required to abate to all Building tenants in the
event of condemnation or casualty damage for a period of twelve (12)
months. Landlord may also (but shall have no obligation to) carry such
other insurance as Landlord may deem prudent or advisable, including,
without limitation, liability insurance in such amounts and on such terms
as Landlord shall determine (in its reasonable discretion). Landlord shall
not be obligated to insure, and shall have no responsibility whatsoever for
any damage to, any furniture, machinery, goods, inventory or supplies, or
other personal property or fixtures which Tenant may keep or maintain in
the Premises, or any leasehold improvements, additions or alterations
within the Premises.
<PAGE>
B. Tenant's Insurance.
(1) Property Insurance. Tenant shall procure at Tenant's sole
cost and expense and keep in effect from the date of this Lease and at all
times until the end of the Term, insurance on all personal property and
fixtures of Tenant and all improvements, additions or alterations made by
or for Tenant to the Premises on an "All Perils" basis, insuring such
property for the full replacement value of such property.
(2) Liability Insurance. Tenant shall procure at Tenant's sole
cost and expense and keep in effect from the date of this Lease and at all
times until the end of the Term Commercial General Liability insurance
covering bodily injury and property damage liability occurring in or about
the Premises or arising out of the use and occupancy of the Premises and
the Project, and any part of either, and any areas adjacent thereto, and
the business operated by Tenant or by any other occupant of the Premises.
Such insurance shall include contractual liability insurance coverage
insuring all of Tenant's indemnity obligations under this Lease. Such
coverage shall have a minimum combined single limit of liability of at
least Two Million Dollars ($2,000,000.00), and a minimum general aggregate
limit of Three Million Dollars ($3,000,000.00), with an "Additional
Insured -Managers or Lessors of Premises Endorsement." All such policies
shall be written to apply to all bodily injury (including death), property
damage or loss, personal and advertising injury and other covered loss,
however occasioned, occurring during the policy term, shall be endorsed to
add Landlord and any party holding an interest to which this Lease may be
subordinated as an additional insured, and shall provide that such coverage
shall be "primary" and non-contributing with any insurance maintained by
Landlord, which shall be excess insurance only. Such coverage shall also
contain endorsements including employees as additional insureds if not
covered by Tenant's Commercial General Liability Insurance. All such
insurance shall provide for the severability of interests of insureds; and
shall be written on an "occurrence" basis, which shall afford coverage for
all claims based on acts, omissions, injury and damage, which occurred or
arose (or the onset of which occurred or arose) in whole or in part during
the policy period.
(3) Workers' Compensation and Employers' Liability Insurance.
Tenant shall carry Workers' Compensation Insurance as required by any
Regulation, throughout the Term at Tenant's sole cost and expense. Tenant
shall also carry Employers' Liability Insurance in amounts not less than
One Million Dollars ($1,000,000) each accident for bodily injury by
accident; One Million Dollars ($1,000,000) policy limit for bodily injury
by disease; and One Million Dollars ($1,000,000) each employee for bodily
injury by disease, throughout the Term at Tenant's sole cost and expense.
(4) General Insurance Requirements. All coverages described in
this Paragraph 8.B. shall be endorsed to provide Landlord with thirty (30)
days' notice of cancellation or change in terms. If at any time during the
Term the amount or coverage of insurance which Tenant is required to carry
under this Paragraph 8.B. is, in Landlord's reasonable judgment, materially
less than the amount or type of insurance coverage typically carried by
comparable tenants (in terms of size, financial strength and type of
business of operation) of properties located in the general area in which
the Premises are located which are similar to and operated for similar
purposes as the Premises or if Tenant's use of the Premises should change
with or without Landlord's consent, Landlord shall have the right to
require Tenant to reasonably increase the amount or change the types of
insurance coverage required under this Paragraph 8.B. All insurance
policies required to be carried by Tenant under this Lease shall be written
by companies rated A X or better in "Best's Insurance Guide" and authorized
to do business in the State of California. In any event deductible amounts
under all insurance policies required to be carried by Tenant under this
Lease shall not exceed Seven Thousand Five Hundred Dollars ($7,500.00) per
occurrence. Tenant shall deliver to Landlord on or before the Term
Commencement Date, and thereafter at least thirty (30) days before the
expiration dates of the expired policies, a certificate evidencing the
<PAGE>
same issued by the insurer thereunder; and, if Tenant shall fail to procure such
insurance, or to deliver such certificates, Landlord may, at Landlord's option
and in addition to Landlord's other remedies in the event of a default by Tenant
hereunder, after ten (10) business days prior notice to Tenant, procure the same
for the account of Tenant, and the cost thereof shall be paid to Landlord as
Additional Rent.
C. Indemnification. Tenant shall indemnify, defend by counsel
reasonably acceptable to Landlord, protect and hold Landlord harmless from and
against any and all claims, liabilities, losses, costs, loss of rents, liens,
damages, injuries or expenses, including reasonable attorneys' and consultants'
fees and court costs, demands, causes of action, or judgments, directly or
indirectly arising out of or related to: (1) claims of injury to or death of
persons or damage to property occurring or resulting directly or indirectly from
the use or occupancy of the Premises, Building or Project by Tenant or Tenant's
Parties, or from activities or failures to act of Tenant or Tenant's Parties;
(2) claims arising from work or labor performed, or for materials or supplies
furnished to or at the request or for the account of Tenant in connection with
performance of any work done for the account of Tenant within the Premises or
Project (other than by Landlord); (3) claims arising from any breach or default
on the part of Tenant in the performance of any covenant contained in this
Lease; and (4) claims arising from the negligence or intentional acts or
omissions of Tenant or Tenant's Parties. The foregoing indemnity by Tenant shall
not be applicable to claims to the extent arising from the negligence or willful
misconduct of Landlord. Landlord shall not be liable to Tenant and Tenant hereby
waives all claims against Landlord for any injury or damage to any person or
property in or about the Premises, Building or Project by or from any cause
whatsoever (other than Landlord's negligence or willful misconduct) and, without
limiting the generality of the foregoing, whether caused by water leakage of any
character from the roof, walls, basement or other portion of the Premises,
Building or Project, or caused by gas, fire, oil or electricity in, on or about
the Premises, Building or Project. The provisions of this Paragraph shall
survive the expiration or earlier termination of this Lease.
Landlord shall indemnify, defend and hold harmless Tenant from any
loss, cost, liability, damage or expense resulting from the negligence or
willful misconduct of Landlord or its agents, servants, employees, contractors
or licensees in connection with Landlord's activities with respect to the
Project or from any default by Landlord under the terms of this Lease (except
for damage to the tenant improvements and Tenant's personal property, fixtures,
furniture and equipment in the Premises to the extent such damage is covered by
insurance Tenant is required to carry pursuant to Paragraph 8B).
<PAGE>
9. WAIVER OF SUBROGATION
To the extent permitted by law and without affecting the coverage provided
by insurance to be maintained hereunder or any other rights or remedies,
Landlord and Tenant each waive any right to recover against the other for: (a)
damages for injury to or death of persons; (b) damages to property, including
personal property; (c) damages to the Premises or any part thereof; and (d)
claims arising by reason of the foregoing due to hazards covered by insurance
maintained or required to be maintained pursuant to this Lease to the extent of
proceeds recovered therefrom, or proceeds which would have been recoverable
therefrom in the case of the failure of any party to maintain any insurance
coverage required to be maintained by such party pursuant to this Lease. This
provision is intended to waive fully, any rights and/or claims arising by reason
of the foregoing, but only to the extent that any of the foregoing damages
and/or claims referred to above are covered or would be covered, and only to the
extent of such coverage, by insurance actually carried or required to be
maintained pursuant to this Lease by either Landlord or Tenant. This provision
is also intended to waive fully, and for the benefit of each party, any rights
and/or claims which might give rise to a right of subrogation on any insurance
carrier. Subject to all qualifications of this Paragraph 9, Landlord waives its
rights as specified in this Paragraph 9 with respect to any subtenant that it
has approved pursuant to Paragraph 21 but only in exchange for the written
waiver of such rights to be given by such subtenant to Landlord upon such
subtenant taking possession of the Premises or a portion thereof. Each party
shall cause each insurance policy obtained by it to provide that the insurance
company waives all right of recovery by way of subrogation against either party
in connection with any damage covered by any policy.
<PAGE>
10. LANDLORD'S REPAIRS AND MAINTENANCE
Without limiting the generality of the foregoing, Landlord shall
diligently maintain, repair and keep in a clean and sanitary working order and
condition equal to the standards of the Comparable Projects (as defined in
Paragraph 39B below) as part of Operating Expenses to the extent allowable under
this Lease: (i) the foundations, structural portion of the floor, roof and all
structural aspects of the Building, the common areas of the Project (the "Common
Areas"), and the parking facilities; (ii) all systems and facilities necessary
for the operation of the Building and the provision of services and utilities as
required herein, and the electrical, mechanical, plumbing, lighting, lifesafety,
fire sprinkler, heating, ventilating and air conditioning ("HVAC") and security
systems which service the Premises and all other elements thereof (the "Building
Systems"); (iii) the parking facilities; and (iv) the Common Areas, including,
but not limited to, elevators and escalators, electrical, mechanical and
plumbing systems, fixtures and equipment, restrooms, structural components,
lighting, heating, ventilating and air conditioning equipment and systems and
security systems and all other areas or elements thereof. Any damage caused by
or repairs necessitated by any negligence or act of Tenant or Tenant's Parties
may be repaired by Landlord at Landlord's option and Tenant's expense; provided,
however, in the event such damage constitutes an insurable loss Landlord shall
look to its insurance company rather than Tenant to pay for any such insurable
loss (but only to the extent of actual insurance proceeds received therefor by
Landlord). Tenant shall immediately give Landlord written notice of any defect
or need of repairs in such components of the Building for which Landlord is
responsible, after which Landlord shall have a reasonable opportunity and the
right to enter the Premises at all reasonable times to repair same (subject to
the immediately succeeding paragraph). Landlord's liability with respect to any
defects, repairs, or maintenance for which Landlord is responsible under any of
the provisions of this Lease shall be limited to the cost of such repairs or
maintenance, and there shall be no abatement of rent and no liability of
Landlord by reason of any injury to or interference with Tenant's business
arising from the making of repairs, alterations or improvements in or to any
portion of the Premises, the Building or the Project or to fixtures,
appurtenances or equipment in the Building, except as provided in Paragraph 24
or elsewhere in this Lease. By taking possession of the Premises, Tenant
accepts them "as is," as being in good order, condition and repair and the
condition in which Landlord is obligated to deliver them and suitable for the
Permitted Use and Tenant's intended operations in the Premises, whether or not
any notice of acceptance is given, subject to punchlist items, latent defects,
structural defects, and any covenants and/or representations set forth in this
Lease. Tenant's rights under any warranties assigned to Tenant pursuant to the
Improvement Agreement attached hereto as Exhibit "C" and the performance by
Landlord of its obligations under this Paragraph 10.
Except in the case of emergency, Landlord shall provide Tenant with
reasonable prior written notice (which Landlord shall attempt to provide no less
than 48 hours in advance unless such entry is approved by the on-site manager
for a lesser time period or with respect to janitorial or normal periodic minor
maintenance and upkeep) of Landlord's intent to enter the Premises, shall use
reasonable efforts to minimize any interference to Tenant, and shall attempt to
make all such entries during normal business hours.
If Tenant provides notice to Landlord of an event or circumstance which
requires the action of Landlord with respect to the provision of utilities
and/or services and/or repairs and/or maintenance as set forth in Articles 10
and 15 of this Lease, and Landlord fails to provide such action as required by
the terms of this Lease, or, if no specific time period for such performance is
set forth in this Lease, within a reasonable time period, then Tenant may
proceed to take the required action upon delivery of an additional two (2)
business days notice to Landlord specifying that Tenant is taking such required
action, and if such action was required under the terms of this Lease to be
taken by Landlord, then Tenant shall be entitled to prompt reimbursement by
Landlord of Tenant's reasonable costs and expenses in taking such action plus
interest at the Applicable Interest Rate (defined herein). In the event Tenant
takes such action,
<PAGE>
and such work will affect, in Landlord's reasonable determination, any of the
Building systems and equipment, structural integrity or exterior appearance of
the Building, Tenant shall use only those contractors used by Landlord in the
Project for such work unless such contractors are unwilling or unable to perform
such work within a reasonable period of time, in which event Tenant may utilize
the services of any other qualified contractor which normally and regularly
performs similar work in comparable projects. In this regard, upon a written
request from Tenant, but not more often than once per calendar year, Landlord
shall provide to Tenant the names of the contractors then being used by Landlord
in the Project for work. Further, if Landlord does not deliver a detailed
written objection to Tenant, within thirty (30) days after receipt of an invoice
by Tenant of its costs of taking action which Tenant claims should have been
taken by Landlord, and if such invoice from Tenant sets forth a reasonably
particularized breakdown of its costs and expenses in connection with taking
such action on behalf of Landlord, then Tenant shall be entitled to deduct from
Rent payable by Tenant under this Lease, the amount set forth in such invoice
together with interest at the Applicable Interest Rate. If, however, Landlord
delivers to Tenant within thirty (30) days after receipt of Tenant's invoice, a
written objection to the payment of such invoice, setting forth with reasonable
particularity Landlord's reasons for its claim that such action did not have to
be taken by Landlord pursuant to the terms of this Lease or that the charges are
excessive (in which case Landlord shall pay the amount it contends would not
have been excessive), then Tenant shall not be entitled to such deduction from
Rent, but as Tenant's sole remedy, Tenant may proceed to submit the matter to
binding arbitration in accordance with the American Arbitration Association in
order to prosecute a claim against Landlord to collect the amount set forth in
the subject invoice. For purposes of the first sentence of this paragraph,
Landlord shall not be deemed to have "failed to provide such action as required
by the terms of this Lease" if Landlord commences any requisite repair work
within a reasonable period of time following Landlord's receipt of written
notice of the need for repairs and Landlord prosecutes such repair work toward
completion with reasonable diligence.
11. TENANT'S REPAIRS AND MAINTENANCE
Tenant shall at all times during the Term at Tenant's expense maintain all
non-structural parts of the Premises (including partitions and interior dry
walls) (other than Building Systems and equipment and structural parts of the
Premises) and such portions of the Building as are within the exclusive control
of Tenant in good repair and condition, reasonable wear and tear excepted, clean
and secure condition and promptly make all necessary repairs and replacements
with materials and workmanship of the same character, kind and quality as the
original, except to the extent the necessity for any such repairs or
replacements results from Landlord's negligence or willful misconduct of
Landlord. Notwithstanding anything to the contrary contained herein, Tenant
shall, at its expense, promptly repair any damage to the Premises or the
Building or Project resulting from or caused by any negligence or act of Tenant
or Tenant's Parties.
<PAGE>
12. ALTERATIONS
<PAGE>
A. Tenant shall not make, or allow to be made, any alterations,
physical additions, improvements or partitions, including without limitation the
attachment of any fixtures or equipment, in, about or to the Premises
("ALTERATIONS") without obtaining the prior written consent of Landlord, which
consent shall not be unreasonably withheld with respect to proposed Alterations
(and shall be granted or denied within twenty (20) business days following
Landlord's receipt of Tenant's request therefor [together with all relevant
information required by Landlord with respect to such Alterations], stating
detailed reasons for denial, provided that Landlord shall use its commercially
reasonable efforts to grant or deny said consent prior to said twenty (20)
business day period, without any liability for its failure to do so) which: (a)
comply with all applicable Regulations; (b) in Landlord's reasonable opinion, do
not adversely affect the structure of the Building or the Project and its
mechanical, plumbing, electrical, heating/ventilation/air conditioning systems,
and will not cause the Building or Project or such systems to be required to be
modified to comply with any Regulations (including, without limitation, the
Americans With Disabilities Act); and (c) will not interfere with the use and
occupancy of any other portion of the Building or Project by any other tenant or
its invitees. Notwithstanding anything to the contrary contained herein,
"Alterations" shall not include any "Tenant Improvements" or other fixtures or
equipment installed in the Premises as of the Term Commencement Date (the
"Existing Improvements"). Specifically, but without limiting the generality of
the foregoing, Landlord shall have the right of written consent for all plans
and specifications for the proposed Alterations, construction means and methods,
all appropriate permits and licenses, any contractor or subcontractor to be
employed on the work of Alterations, and the time for performance of such work,
and may impose reasonable, non-discriminatory rules and regulations for
contractors and subcontractors performing such work, all of which shall not be
unreasonably withheld or delayed. Tenant shall also supply to Landlord any
documents and information reasonably requested by Landlord in connection with
Landlord's consideration of a request for approval hereunder. Tenant shall cause
all Alterations to be accomplished in a good and workmanlike manner, and to
comply with all applicable Regulations and Paragraph 27 hereof. Tenant shall at
Tenant's sole expense, perform any additional work required under applicable
Regulations due to the Alterations hereunder. Tenant shall have the right to use
non-union contractors to perform all or a portion of the Alterations, but only
to the extent (i) Tenant provides Landlord with prior written notice of its
request to hire a non-union contractor, and (ii) hiring non-union contractors
does not violate any contracts to which Landlord is a party. No review or
consent by Landlord of or to any proposed Alteration or additional work shall
constitute a waiver of Tenant's obligations under this Paragraph 12, nor
constitute any warranty or representation that the same complies with all
applicable Regulations, for which Tenant shall at all times be solely
responsible. Tenant shall reimburse Landlord for all reasonable, actual, out-of-
pocket costs which Landlord may incur in connection with granting approval to
Tenant for any such Alterations, including any costs or expenses which Landlord
may incur in electing to have outside architects and engineers review said plans
and specifications, and shall pay Landlord an administration fee of seven and
one-half percent (7.5%) of the cost of the Alterations as Additional Rent
hereunder (provided that such administration fee shall be reduced to 3% in
connection with any cosmetic Alterations which do not require Landlord's consent
pursuant to the immediately succeeding paragraph). All such Alterations shall
remain the property of Tenant until the expiration or earlier termination of
this Lease, at which time they shall be and become the property of Landlord;
provided, however, that Landlord may, at Landlord's option, at the time of
Landlord's consent (or if Landlord's consent is not required, within ten (10)
business days following Tenant's notice to Landlord of its intention to perform
any Alterations) require that Tenant, at Tenant's expense, remove any or all
Alterations made by Tenant (but not the Tenant Improvements constructed in
accordance with the Improvement Agreement attached hereto as Exhibit "C", unless
an item(s) of such Tenant Improvements has been specifically designated by
Landlord to be removed upon the expiration or earlier termination of this Lease)
and restore the Premises by the expiration or earlier termination of this Lease,
to their condition existing prior to the construction of any such Alterations.
All such removals and restoration shall be accomplished in a good and
workmanlike manner so as not to cause any damage to the Premises or Project
whatsoever. If Tenant fails to remove such
<PAGE>
Alterations or Tenant's trade fixtures or furniture or other personal property
at the expiration or earlier termination of this Lease, Landlord may keep and
use them or remove any of them and cause them to be stored or sold in accordance
with applicable law, at Tenant's sole expense. In addition to and wholly apart
from Tenant's obligation to pay Tenant's Proportionate Share of Operating
Expenses, Tenant shall be responsible for and shall pay prior to delinquency any
taxes or governmental service fees, possessory interest taxes, fees or charges
in lieu of any such taxes, capital levies, or other charges imposed upon, levied
with respect to or assessed against its fixtures or personal property, on the
value of Alterations within the Premises, and on Tenant's interest pursuant to
this Lease, or any increase in any of the foregoing based on such Alterations.
To the extent that any such taxes are not separately assessed or billed to
Tenant, Tenant shall pay the amount thereof as invoiced to Tenant by Landlord.
Notwithstanding anything to the contrary contained herein, Tenant may make
any cosmetic Alterations which do not affect the Building systems and equipment,
exterior appearance of the Building, or structural aspects, by providing
Landlord with notice not less than ten (10) business days prior to the
commencement thereof, provided that no notice shall be required in connection
with (i) any such cosmetic Alterations which, in the aggregate, cost less than
$2,000, and (ii) the placement of movable furniture, fixtures or equipment in
the Premises. Landlord's consent shall not be required with respect to any such
Alterations provided the cost of said Alterations do not exceed $100,000 in any
twelve (12) month period. Tenant may not make any Alterations which may affect
the Building systems and equipment, exterior appearance of the Building,
configuration of the Premises or structural aspects or which require a permit
from the applicable governmental authorities, without first procuring the prior
written consent of Landlord to such Alterations, which consent shall be
requested by Tenant not less than ten (10) days prior to commencement thereof,
and which consent may be withheld by Landlord in its reasonable discretion. Any
time Tenant proposes to make Alterations which require the consent of Landlord
pursuant to this Section, Tenant's notice regarding the proposed Alterations
shall be provided together with the plans and specifications for the
Alterations, and Landlord shall use its reasonable efforts to approve or
disapprove of the same within ten (10) business days after its receipt of all of
the same.
B. In compliance with Paragraph 27 hereof, at least ten (10)
business days before beginning construction of any Alteration, Tenant shall give
Landlord written notice of the expected commencement date of that construction
to permit Landlord to post and record a notice of non-responsibility. Upon
substantial completion of construction, if the law so provides, Tenant shall
cause a timely notice of completion to be recorded in the office of the recorder
of the county in which the Building is located.
<PAGE>
13. SIGNS
Except as otherwise set forth in Paragraph 39C below, Tenant shall not
place, install, affix, paint or maintain any signs, notices, graphics or banners
whatsoever or any window decor which is visible in or from public view or
corridors, the common areas or the exterior of the Premises or the Building, in
or on any exterior window or window fronting upon any common areas or service
area without Landlord's prior written approval which Landlord shall have the
right to withhold in its absolute and sole discretion; provided that (i)
Tenant's name and/or logo shall be included in any Building-standard door, (ii)
Tenant shall have the right to one (1) strip on the ground floor lobby directory
signage, and (iii) Tenant shall have the right to twelve (12) strips on the 2120
Building P1 parking level directory signage, including without limitation,
payment by Tenant of any Project standard reasonable fee charged by Landlord for
maintaining such signage, which fee shall constitute Additional Rent hereunder.
Any installation of signs, notices, graphics or banners on or about the Premises
or Project approved by Landlord shall be subject to any Regulations and to any
other requirements imposed by Landlord. Tenant shall remove all such signs or
graphics by the expiration or any earlier termination of this Lease. Such
installations and removals shall be made in such manner as to avoid injury to or
defacement of the Premises, Building or Project and any other improvements
contained therein, and Tenant shall repair any injury or defacement including
without limitation discoloration caused by such installation or removal.
14. INSPECTION/POSTING NOTICES
Upon reasonable prior notice (or upon no notice with respect to janitorial
or normal periodic minor maintenance and upkeep or in emergencies), and in
compliance with the security and confidentiality requirements set forth in this
Lease, Landlord and Landlord's agents and representatives, shall have the right
to enter the Premises at all reasonable times to inspect the same, to clean, to
perform such work as may be permitted or required hereunder, to make repairs,
improvements or alterations to the Premises, Building or Project or to other
tenant spaces therein, to deal with emergencies, to post such notices as may be
permitted or required by law to prevent the perfection of liens against
Landlord's interest in the Project or to exhibit the Premises to prospective
tenants (only during the last nine months of the Term), purchasers,
encumbrancers or to others, or for any other purpose as Landlord may deem
reasonably necessary or desirable; provided, however, that Landlord shall not
unreasonably interfere with Tenant's business operations or access to the
Premises (except on a temporary or incidental basis) and Landlord shall comply
with all specific notice and access requirements set forth in this Lease. Tenant
shall not be entitled to any abatement of Rent by reason of the exercise of any
such right of entry, except as otherwise provided herein. Tenant waives any
claim for damages for any injury or inconvenience to or interference with
Tenant's business, any loss of occupancy or quiet enjoyment of the Premises, and
any other loss occasioned by Landlord's entry on the Premises in accordance with
the terms of this Lease. Landlord shall at all times have and retain a key with
which to unlock all of the doors in, upon and about the Premises, excluding
Tenant's vaults and safes or special security areas (designated in advance), and
Landlord shall have the right to use any and all means which Landlord may deem
reasonably necessary or proper to open said doors in an emergency, in order to
obtain entry to any portion of the Premises, and any entry to the Premises or
portions thereof obtained by Landlord by any of said means, or otherwise, shall
not be construed to be a forcible or unlawful entry into, or a detainer of, the
Premises, or an eviction, actual or constructive, of Tenant from the Premises or
any portions thereof. At any time within nine (9) months prior to the expiration
of the Term or following any earlier termination of this Lease or agreement to
terminate this Lease, Landlord shall have the right to erect on the Building
and/or Project a suitable sign indicating that the Premises are available for
lease.
<PAGE>
15. SERVICES AND UTILITIES
A. Subject to the provisions elsewhere herein contained and to the
rules and regulations of the Building, Landlord shall furnish to the Premises
during Business Hours (but exclusive, in any event, of Sundays and generally
recognized national or state legal holidays), water for kitchen, lavatory and
drinking purposes and electricity, HVAC as usually furnished or supplied for use
of the Premises for reasonable and normal office use (consistent with other
tenants in the Project). Notwithstanding the foregoing, and subject to all of
the other terms and conditions of this Lease, water, elevator service,
electricity and heat and air conditioning shall be furnished or supplied for use
of the Premises twenty-four (24) hours per day, three hundred sixty-five (365)
days per year. The term "Business Hours" shall mean 8:00 a.m. to 6:00 p.m.,
Monday through Friday, and 9:00 a.m. to 12:00 noon on Saturdays. Except as
otherwise provided in this Article 15, any expenditures incurred by Landlord in
furnishing services and utilities in accordance with this Article 15 shall not
be separately chargeable to Tenant, but rather shall be included in the
Operating Expenses and shall be subject to reimbursement in accordance with the
provisions set forth in Article 7.
B. Landlord shall provide adequate electrical wiring, facilities and
power for normal general office use as reasonably determined by Landlord (but
not including above-standard or continuous cooling for excessive heat-generating
machines, excess lighting or equipment), and elevator service, which shall mean
service either by nonattended automatic elevators or elevators with attendants,
or both, at the option of Landlord. For purposes of this Paragraph 15B, the term
"power for normal general office use" shall equal six (6) watts connected load
per usable square foot of the Premises on an annual basis.
C. Tenant shall have the right to install its own supplemental air-
conditioning unit (the cost of which, if installed concurrently with the
construction of the Tenant Improvements, may be applied against any unused
Tenant Improvement Allowance), provided that Landlord approves of the
installation of such unit and the same does not interfere with the operation
systems and equipment, including without limitation, the Building heating,
ventilation and air-conditioning systems (as determined by Landlord in its
reasonable discretion); provided, however, Tenant shall be solely responsible
for all costs relating to the installation and operation of such unit, and
shall, upon Landlord's request, remove such unit upon the expiration or earlier
termination of the Term and shall cause such unit to be separately metered at
Tenant's expense.
D. Landlord shall provide janitorial services in accordance with the
janitorial specifications attached hereto as Exhibit "D". Landlord further
agrees to provide for the cleaning of the exterior of the perimeter glass of the
Building approximately once every six (6) months.
E. Landlord agrees to provide a card key access system to control
access to the Building's parking facility and for after-hours access to the
Building. Furthermore, Landlord will maintain security measures at the Project
comparable to those maintained by other landlords of office buildings in the
SMSOD. Subject Landlord's approval as to the method of installation and type of
security system, Tenant shall have the right to install its own security system
and/or personnel provided (i) Landlord and its agents, representatives and
employees shall be able to reasonably access the Premises for any purposes for
which Landlord is entitled to access the Premises under this Lease (including,
without limitation, for emergency purposes), (ii) the same does not interfere
with the Building systems or equipment, (iii) Tenant shall indemnify, defend and
hold harmless Landlord from and against any and all claims, loss, damage or
expenses suffered by Landlord resulting from or arising out of the installation
of said security system or maintenance of security personnel, and (iv) upon
Landlord's request (and notwithstanding anything to the contrary set forth in
Paragraph 26 below), Tenant shall remove any such system upon the expiration or
earlier termination of this Lease and repair any damage caused by such removal.
<PAGE>
F. Landlord shall provide after-hours heating or air conditioning at
Tenant's request and Tenant shall pay to Landlord a reasonable charge for such
services as reasonably determined by Landlord (which charge shall not exceed
$60.00 per hour). Landlord agrees that the charge for after-hours heating or air
conditioning shall be reasonably comparable to that being charged at other
first-class office buildings in the Santa Monica Special Office District. Tenant
agrees to keep and cause to be kept closed all window covering when necessary
because of the sun's position, and Tenant also agrees at all times to cooperate
fully with Landlord and to abide by all of the reasonable, non-discriminatory
regulations and requirements which Landlord may prescribe for the proper
functioning and protection of electrical, heating, ventilating and air
conditioning systems. Wherever heat-generating machines, excess lighting or
equipment are used in the Premises which affect the temperature otherwise
maintained by the air conditioning system (other than standard general office
equipment or other equipment originally installed in the Premises which has been
specifically approved by Landlord as not materially affecting the temperature in
the Premises, which approval by Landlord shall not be unreasonably withheld and
shall be given or denied within ten (10) days after Landlord's receipt of a
detailed list of said proposed equipment, provided that Landlord and Tenant
agree to mutually approve a list of such "other equipment" prior to the Term
Commencement Date). Landlord reserves the right to install supplementary air
conditioning units in the Premises and the cost thereof, including the cost of
installation and the cost of operation and maintenance thereof, shall be paid by
Tenant to Landlord within thirty (30) days after demand by Landlord.
G. Tenant shall not without written consent of Landlord (which shall
not be unreasonably withheld or delayed) use any apparatus, equipment or device
in the Premises, including without limitation, electronic data processing
machines, and other over-standard machines using electric current or water, in
excess of or which will in any way increase the amount of electricity or water
being furnished or supplied for the use of the Premises (which, with respect to
electricity consumption, is in excess of 6 watts per usable square foot of the
Premises) or which will require additions or alterations to or interfere with
the Building power distribution systems; nor connect with electric current,
except through existing electrical outlets in the Premises or water pipes, any
apparatus, equipment or device for the purpose of using electrical current,
water, or any other resource. If Tenant shall require water or electric current
or any other resource in excess of that being furnished or supplied for the use
of the Premises, Tenant shall first procure the written consent of Landlord
(which shall not be unreasonably withheld or delayed), and Landlord may cause a
special meter to be installed in the Premises so as to measure the amount of
water, electric current or other resource consumed for any such other use.
Tenant shall pay directly to Landlord as an addition to and separate from
payment of Operating Expenses the actual cost incurred by Landlord to provide
all such additional resources, energy, utility service and meters (and of
installation, maintenance and repair thereof and of any additional circuits or
other equipment necessary to furnish such additional resources, energy, utility
or service). Landlord may add to the separate or metered charge a recovery of
additional expense incurred in keeping account of the excess water, electric
current or other resource so consumed. Except as otherwise provided herein,
Landlord shall not be liable for any damages directly or indirectly resulting
from nor shall the Rent or any monies owed Landlord under this Lease herein
reserved be abated by reason of: (a) the installation, use or interruption of
use of any equipment used in connection with the furnishing of any such
utilities or services, or any change in the character or means of supplying or
providing any such utilities or services or any supplier thereof; (b) the
failure to furnish or delay in furnishing any such utilities or services when
such failure or delay is caused by acts of God or the elements, labor
disturbances of any character, or any other accidents or other conditions beyond
the reasonable control of Landlord or because of any interruption of service due
to Tenant's use of water, electric current or other resource in excess of that
being supplied or furnished for the use of the Premises; (c) the inadequacy,
limitation, curtailment, rationing or restriction on use of water, electricity,
gas or any other form of energy or any other service or utility whatsoever
serving the Premises or Project, whether by Regulation or otherwise beyond
Landlord's reasonable control; or (d) the partial or total unavailability of any
such utilities or
<PAGE>
services to the Premises or the Building, whether by Regulation or otherwise
beyond Landlord's reasonable control; nor shall any such occurrence constitute
an actual or constructive eviction of Tenant. Provided the utility services
provided to Tenant are not materially reduced or impaired, Landlord shall be
entitled to cooperate voluntarily and in a reasonable manner with the efforts of
national, state or local governmental agencies or utility suppliers in reducing
energy or other resource consumption. In addition, Landlord reserves the right
to change the supplier or provider of any such utility or service from time to
time, so long as the cost to provide said utilities or services are reasonably
competitive with that of other providers or suppliers. Tenant shall have no
right to contract with or otherwise obtain any electrical service for or with
respect to the Premises or Tenant's operations therein from any supplier or
provider of any such service. Tenant shall cooperate, at no expense to Tenant
(except as otherwise set forth in this Lease), with Landlord and any supplier or
provider of such services designated by Landlord from time to time to facilitate
the delivery of such services to Tenant at the Premises and to the Building and
Project, including without limitation allowing Landlord and Landlord's suppliers
or providers, and their respective agents and contractors, reasonable access to
the Premises for the purpose of installing, maintaining, repairing, replacing or
upgrading such service or any equipment or machinery associated therewith.
Landlord agrees to use its commercially reasonable efforts to minimize any
interference caused to Tenant's business operations as a result of such access.
H. In the event that Tenant requires utilities (other than
electricity, water and HVAC) and/or services in excess of what Landlord is
required to provide during Business Hours, Landlord agrees to use its
commercially reasonable efforts to provide such extra utilities and services,
and Tenant agrees to pay to Landlord its then standard charge for any such extra
utilities or services.
I. For all utilities furnished to the Premises and separately billed
by Landlord to or metered to Tenant in accordance with the terms of this
Paragraph 15, Tenant shall pay the charges therefor within 30 days after written
demand from Landlord. For all other utilities furnished to the Premises, Tenant
shall pay Tenant's Proportionate Share of all charges jointly serving the
Project in accordance with Paragraph 7. All sums payable under this Paragraph 15
shall constitute Additional Rent hereunder.
J. In the event that Tenant is prevented from using, and does not
use, the Premises or any portion thereof, for five (5) consecutive business days
or ten (10) business days in any twelve (12) month period following Landlord's
receipt of written notice from Tenant (the "Eligibility Period") as a result of
any (i) repair, maintenance or alteration performed by Landlord, or which
Landlord failed to perform and which was required by this Lease (which is not
necessitated by the negligence of Tenant or its employees, agents, contractors
or invitees) and which substantially interferes with Tenant's use of the
Premises, and (ii) interruption in any of the following building services
required to be provided by Landlord (so long as it is not due to the fault or
neglect of Tenant, its agents, employees, contractors or invitees): heating,
ventilation and air conditioning, electrical services, janitorial service or
water or any other "essential" building service (each such circumstance to be
known as an "Abatement Event"), then Tenant's rent and parking charges shall be
abated or reduced, as the case may be, after expiration of the Eligibility
Period for such time that Tenant continues to be so prevented from using, and
does not use, the Premises, or a portion thereof, in the proportion that the
rentable area of the portion of the Premises that Tenant is prevented from
using, and does not use, bears to the total rentable area of the Premises.
However, in the event that Tenant is prevented from conducting, and does not
conduct, its business in any portion of the Premises for a period of time in
excess of the Eligibility Period, and the remaining portion of the Premises is
not sufficient to allow Tenant to effectively conduct its business therein, and
if Tenant does not conduct its business from such remaining portion, then for
such time after expiration of the Eligibility Period during which Tenant is so
prevented from effectively conducting its business therein, the rent for the
entire Premises and all of Tenant's parking charges shall be abated; provided,
however, if Tenant reoccupies and conducts its business from any portion of the
Premises during such period, the rent and parking charges allocable
<PAGE>
to such reoccupied portion, based on the proportion that the rentable area of
such reoccupied portion of the Premises bears to the total rentable area of the
Premises, shall be payable by Tenant from the date such business operations
commence. Notwithstanding anything to the contrary contained herein, the terms
of Article 23 and 24 shall govern and control Tenant's right to any rental
abatement as a result of any event covered by Article 23 or 24 below.
K. Landlord agrees to maintain and operate the Common Areas in a
manner consistent with Comparable Projects within the SMSOD, as reasonably
determined by Landlord.
16. SUBORDINATION
Without the necessity of any additional document being executed by Tenant
for the purpose of effecting a subordination, the Lease shall be and is hereby
declared to be subject and subordinate at all times to: (a) all ground leases or
underlying leases which may now exist or hereafter be executed affecting the
Premises and/or the land upon which the Premises and Project are situated, or
both; and (b) any mortgage or deed of trust which may now exist or be placed
upon the Building, the Project and/or the land upon which the Premises or the
Project are situated, or said ground leases or underlying leases, or Landlord's
interest or estate in any of said items which is specified as security.
Notwithstanding the foregoing, Landlord shall have the right to subordinate or
cause to be subordinated any such ground leases or underlying leases or any such
liens to this Lease. If any ground lease or underlying lease terminates for any
reason or any mortgage or deed of trust is foreclosed or a conveyance in lieu of
foreclosure is made for any reason, Tenant shall, notwithstanding any
subordination, attorn to and become the Tenant of the successor in interest to
Landlord provided that such successor agrees that Tenant shall not be disturbed
in its possession under this Lease by such successor in interest so long as
Tenant is not in default under this Lease, beyond any applicable cure periods.
Within ten (10) business days after request by Landlord, Tenant shall execute
and deliver any additional documents evidencing Tenant's attornment or the
subordination of this Lease with respect to any such ground leases or underlying
leases or any such mortgage or deed of trust, in a commercially reasonable form
requested by Landlord or by any ground landlord, mortgagee, or beneficiary under
a deed of trust, subject to such nondisturbance requirement.
Notwithstanding the foregoing, Landlord represents to Tenant that as of the
date of this Lease, there are no mortgages or deeds of trust encumbering
Landlord's interest in the Project. Landlord also agrees to provide Tenant with
commercially reasonable non-disturbance agreement(s) in favor of Tenant from any
ground lessors, mortgage holders or lien holders of Landlord who later come into
existence at any time prior to the expiration of the Term of the Lease in
consideration of, and as a condition precedent to, Tenant's agreement to be
bound by Article 16 of the Lease.
17. FINANCIAL STATEMENTS
At the request of Landlord from time to time and, if Tenant is not a public
company, upon Landlord's signing a commercially reasonable confidentiality
agreement, Tenant shall provide to Landlord the most current financial
statements of Tenant then in Tenant's possession (and prepared in the normal
course of business), which Landlord shall use solely for purposes of this Lease
and in connection with the ownership, management, financing and disposition of
the Project.
<PAGE>
18. ESTOPPEL CERTIFICATE
Tenant agrees from time to time, within ten (10) business days after
request of Landlord, to deliver to Landlord, or Landlord's designee, an estoppel
certificate stating, to the extent such statements are accurate, that this Lease
is in full force and effect, that this Lease has not been modified (or stating
all modifications, written or oral, to this Lease), the date to which Rent has
been paid, the unexpired portion of this Lease, to Tenant's actual knowledge,
that there are no current defaults by Landlord or Tenant under this Lease (or
specifying any such defaults), that the leasehold estate granted by this Lease
is the sole interest of Tenant in the Premises and/or the land at which the
Premises are situated, and such other matters pertaining to this Lease as may be
reasonably requested by Landlord or any mortgagee, beneficiary, purchaser or
prospective purchaser of the Building or Project or any interest therein.
Failure by Tenant to execute and deliver such certificate shall constitute an
acknowledgment by Tenant that the statements included are true and correct
without exception; provided, however, in the event any of the information
described above cannot be truthfully stated, Tenant shall be deemed to have
complied with the provisions in this Article 18 if it provides an estoppel
certificate accurately stating the status of such items. Tenant agrees that if
Tenant fails to execute and deliver such certificate within such ten (10)
business day period, Landlord may execute and deliver such certificate on
Tenant's behalf and that such certificate shall be binding on Tenant. Landlord
and Tenant intend that any statement delivered pursuant to this Paragraph may be
relied upon by any mortgagee, beneficiary, purchaser or prospective purchaser of
the Building or Project or any interest therein. The parties agree that Tenant's
obligation to furnish such estoppel certificates in a timely fashion is a
material inducement for Landlord's execution of the Lease, and shall be an event
of default (without any cure period that might be provided under Paragraph
26.A(3) of this Lease) if Tenant fails to fully comply within two (2) business
days after Tenant's receipt of a notice from Landlord notifying Tenant of its
failure to provide said estoppel certificate within the foregoing ten (10)
business day period or makes any material misstatement in any such certificate.
Landlord hereby agrees to provide to Tenant an estoppel certificate signed
by Landlord, containing the same types of information, and within the same
period of time, as set forth above, with such changes as are reasonably
necessary to reflect that the estoppel certificate is being granted and signed
by Landlord to Tenant, rather than from Tenant to Landlord or a lender.
<PAGE>
19. SECURITY DEPOSIT
A. Subject to Section 39D below (entitling Tenant to deliver a
letter of credit in lieu of a cash security deposit), Tenant agrees to deposit
with Landlord upon execution of this Lease, a security deposit as stated in the
Basic Lease Information (the "SECURITY DEPOSIT"), which sum shall be held and
owned by Landlord, without obligation to pay interest, as security for the
performance of Tenant's covenants and obligations under this Lease. The Security
Deposit is not an advance rental deposit or a measure of damages incurred by
Landlord in case of Tenant's default. Upon the occurrence of any event of
default by Tenant, Landlord may from time to time, without prejudice to any
other remedy provided herein or by law, use such fund as a credit to the extent
necessary to credit against any arrears of Rent or other payments due to
Landlord hereunder, and any other damage, injury, expense or liability caused by
such event of default, and Tenant shall pay to Landlord, within 15 days, the
amount so applied in order to restore the Security Deposit to its original
amount. Although the Security Deposit shall be deemed the property of Landlord,
any remaining balance of such deposit shall be returned by Landlord to Tenant at
such time after termination of this Lease that all of Tenant's obligations under
this Lease have been fulfilled, reduced by such amounts as may be required by
Landlord to remedy defaults on the part of Tenant in the payment of Rent or
other obligations of Tenant under this Lease, to repair damage to the Premises,
Building or Project caused by Tenant or any Tenant's Parties and to restore the
Premises to the condition specified in Section 12 above. Landlord may use and
commingle the Security Deposit with other funds of Landlord. Notwithstanding the
foregoing, provided Tenant is not then in default under this Lease and provided
Tenant has not been in material default on more than three (3) occasions during
the Term, Landlord shall (i) on the first anniversary of the Term Commencement
Date, Landlord shall apply an amount equal to $212,187.21 from the Security
Deposit against Tenant's Base Rent obligations for the next succeeding months of
the Term (until such amount is exhausted), (ii) on the second anniversary of the
Term Commencement Date, Landlord shall apply an amount equal to $180,359.13 from
the Security Deposit against Tenant's Base Rent obligations for the next
succeeding months of the Term (until such amount is exhausted), (iii) on the
third anniversary of the Term Commencement Date, Landlord shall apply an amount
equal to $153,305.27 from the Security Deposit against Tenant's Base Rent
obligations for the next succeeding months of the Term (until such amount is
exhausted), (iv) on the fourth anniversary of the Term Commencement Date,
Landlord shall apply an amount equal to $130,309.47 from the Security Deposit
against Tenant's Base Rent obligations for the next succeeding months of the
Term (until such amount is exhausted); (v) on the fifth anniversary of the Term
Commencement Date, Landlord shall apply an amount equal to $110,763.05 from the
Security Deposit against Tenant's Base Rent obligations for the next succeeding
months of the Term (until such amount is exhausted); and (vi) on the sixth
anniversary of the Term Commencement Date, Landlord shall apply an amount equal
to $94,148.59 from the Security Deposit against Tenant's Base Rent obligations
for the next succeeding months of the Term (until such amount is exhausted).
B. Notwithstanding anything to the contrary contained in Paragraph
19A above, the Security Deposit being held by Landlord pursuant to the terms of
this Lease shall be reduced to an amount equal to $250,000.00, provided that (i)
Tenant is not then in default under this Lease and Tenant has not been in
material default on more than three (3) occasions during the Term, (ii) Tenant
evidences to Landlord's reasonable satisfaction that Tenant has a net worth of
at least $50,000,000.00, and (iii) Tenant evidences to Landlord's reasonable
satisfaction (based upon Landlord's review of Tenant's audited financial
statements) that Tenant has a positive net cash flow for operating activities as
determined in accordance with GAAP during the immediately preceding twelve (12)
month period. From and after the date of any such reduction of the Security
Deposit, if the conditions set forth in subparagraph (ii) and (iii) of the
preceding sentence are no longer satisfied, Tenant shall be obligated to
replenish the Security Deposit in accordance with the amounts otherwise required
to be retained by Landlord pursuant to the terms of Paragraph 19A above (or
Tenant shall be obligated to
<PAGE>
issue a Letter of Credit in accordance with the terms of Paragraph 39D below in
the same amount).
20. LIMITATION OF TENANT'S REMEDIES
The obligations and liability of Landlord to Tenant for any default by
Landlord under the terms of this Lease are not personal obligations of Landlord
or of the individual or other partners of Landlord or its or their partners,
directors, officers, or shareholders, and Tenant agrees to look solely to
Landlord's interest in the Project for the recovery of any amount from Landlord,
including all rental income, insurance, net sales and condemnation proceeds, and
shall not look to other assets of Landlord nor seek recourse against the assets
of the individual or other partners of Landlord or its or their partners,
directors, officers or shareholders. Any lien obtained to enforce any such
judgment and any levy of execution thereon shall be subject and subordinate to
any lien, mortgage or deed of trust on the Project. Under no circumstances shall
Tenant have the right to offset against or recoup Rent or other payments due and
to become due to Landlord hereunder except as expressly provided in this Lease,
including Paragraph 23.B. below, which Rent and other payments shall be
absolutely due and payable hereunder in accordance with the terms hereof.
21. ASSIGNMENT AND SUBLETTING
A. (1) General. Tenant shall not assign or pledge this Lease or
sublet the Premises or any part thereof, whether voluntarily or by
operation of law, or permit the use or occupancy of the Premises or any
part thereof by anyone other than Tenant, or suffer or permit any such
assignment, pledge, subleasing or occupancy, without Landlord's prior
written consent except as provided herein. If Tenant desires to assign this
Lease or sublet any or all of the Premises, Tenant shall give Landlord
written notice (the "Transfer Notice") of Tenant's intent to assign or
sublet the Premises, which notice shall be given at least twenty (20) days
prior to the anticipated effective date of the proposed assignment or
sublease, which shall contain all of the information reasonably requested
by Landlord to address Landlord's decision criteria specified hereinafter.
Within twenty (20) days following Landlord's receipt of the Transfer
Notice, Landlord shall notify Tenant in writing that Landlord elects
either: (i) to terminate this Lease as to the space so affected as of the
date so requested by Tenant; or (ii) to consent or reasonably deny consent
to the proposed assignment or sublease. Consent to any assignment or
subletting shall not constitute consent to any subsequent transaction to
which this Paragraph 21 applies.
(2) Conditions of Landlord's Consent. Without limiting the
other instances in which it may be reasonable for Landlord to withhold
Landlord's consent to an assignment or subletting, Landlord and Tenant
acknowledge that it shall be reasonable for Landlord to withhold Landlord's
consent in the following instances: if the proposed assignee does not agree
to be bound by and assume the obligations of Tenant under this Lease in a
commercially reasonable form and substance reasonably satisfactory to
Landlord; the use of the Premises by such proposed assignee or subtenant
would not be a Permitted Use or would violate any exclusivity or other
arrangement which Landlord has with any other tenant or occupant (provided
that in no event shall such exclusivity arrangement impair the ability to
use the Premises as contemplated in this Lease, except for an exclusivity
clause granted for the operation of a stock brokerage company/investment
banking facility from the Project), or any Regulation or would violate the
Occupancy Density set forth in Paragraph 4 above; the proposed assignee or
subtenant is not of sound financial condition in light of its obligations
under any such sublease or assignment; the proposed assignee or subtenant
is a governmental agency with the power of condemnation or high foot
traffic or otherwise of a character which is not consistent (in Landlord's
reasonable opinion) with the professional image of the Building or the
character of the other tenant's therein; the proposed assignee or subtenant
does not have a good reputation as a tenant of property or a good business
reputation (as determined by Landlord in its reasonable discretion); the
proposed assignee or subtenant is a person who is a present tenant of the
Project or with whom Landlord has executed a lease proposal setting forth
the material business terms of a proposed lease concerning the lease of
space in the Project; the assignment
<PAGE>
or subletting would entail any use of any Hazardous Materials or other
noxious use or use which may disturb other tenants of the Project; or
Tenant is in default of any obligation of Tenant under this Lease, beyond
applicable notice and cure periods. Failure by or refusal of Landlord to
consent to a proposed assignee or subtenant shall not cause a termination
of this Lease. Upon a termination under Paragraph 21.A.(1)(i), Landlord may
lease the Premises to any party without incurring any liability to Tenant.
A termination of this Lease, as elected by Landlord, shall operate as an
assignment to Landlord of all subleases or subtenancies previously approved
in accordance with this Lease. In connection with each request for
assignment or subletting, Tenant shall pay to Landlord Landlord's actual
out-of-pocket costs for approving such requests, as well as all costs
incurred by Landlord or any mortgagee or ground lessor in approving each
such request and effecting any such transfer, including, without
limitation, reasonable attorneys' fees (provided that all such out-of-
pocket costs, including attorneys' fees, shall not exceed $1,500 in the
aggregate).
B. Bonus Rent. Any Rent or other consideration realized by Tenant
under any such sublease or assignment in excess of the Rent payable hereunder,
after deducting any Subleasing Costs (defined below) incurred by Tenant in
connection with said sublease or assignment (which Subleasing Costs shall be
amortized over the term of said sublease or assignment), shall be divided and
paid, fifty percent (50%) to Tenant, fifty percent (50%) to Landlord.
"Subleasing Costs" shall mean reasonable, out-of-pocket expenses for (i) any
changes, alterations and improvements to the Premises in connection with the
transfer, (ii) any brokerage commissions in connection with the transfer, (iii)
any costs to buy-out or takeover the previous lease of a transferee, (iv)
reasonable legal fees incurred in connection with the transfer including those
fees and costs reimbursed to Landlord pursuant to this Lease, (v) free rent,
(vi) any other "out-of-pocket" monetary concessions reasonably provided in
connection with the transfer including, but not limited to, tenant improvement
or decorating allowances (collectively, the "Subleasing Costs"), and (vii) any
other actual, reasonable out-of-pocket costs incurred by Tenant in connection
with such subleasing or assignment including any reimbursements to Landlord for
its approval pursuant to Section 21.A.(2).
C. Corporation. If Tenant is a corporation, a transfer of corporate
shares by sale, assignment, bequest, inheritance, operation of law or other
disposition (including such a transfer to or by a receiver or trustee in federal
or state bankruptcy, insolvency or other proceedings) resulting in a change in
the present control of such corporation or any of its parent corporations by the
person or persons owning a majority of said corporate shares (other than a
transfer to an Affiliate as provided in Subsection F below), shall constitute an
assignment for purposes of this Lease. The terms of this Paragraph 21C shall not
apply if Tenant becomes a publicly traded company on a nationally or regionally
recognized stock exchange or in connection with the investment of money into
Tenant.
D. Unincorporated Entity. If Tenant is a partnership, joint venture,
unincorporated limited liability company or other unincorporated business form,
a transfer of the interest of persons, firms or entities responsible for
managerial control of Tenant by sale, assignment, bequest, inheritance,
operation of law or other disposition, so as to result in a change in the
present control of said entity and/or of the underlying beneficial interests of
said entity and/or a change in the identity of the persons responsible for the
general credit obligations of said entity shall constitute an assignment for all
purposes of this Lease.
E. Liability. No assignment or subletting by Tenant, permitted or
otherwise, shall relieve Tenant of any obligation under this Lease or alter the
primary liability of the Tenant named herein for the payment of Rent or for the
performance of any other obligations to be performed by Tenant, including
obligations contained in Paragraph 25 with respect to any assignee or subtenant.
From and after the date of any default by Tenant under this Lease, beyond any
applicable notice and cure period, Landlord may collect rent or other amounts or
any portion thereof from any assignee, subtenant, or other occupant of the
Premises, permitted or otherwise, and apply the net
<PAGE>
rent collected to the Rent payable hereunder, but no such collection shall be
deemed to be a waiver of this Paragraph 21, or the acceptance of the assignee,
subtenant or occupant as tenant, or a release of Tenant from the further
performance by Tenant of the obligations of Tenant under this Lease. Any
assignment or subletting which conflicts with the provisions hereof shall be
void to such extent.
F. Sublease and Assignment. Notwithstanding anything to the contrary
contained in this Section, neither (i) an assignment or subletting of all or a
portion of the Premises (A) to an entity which is controlled by, controls or is
under common control with Tenant (or a valid assignee of this Lease), or (B) to
a purchaser of all or substantially all of the assets of Tenant or of an entity
which is controlled by, controls or is under common control with Tenant (or a
valid assignee of this Lease), nor (ii) a transfer, by operation of law or
otherwise, in connection with the merger, consolidation or other reorganization
of Tenant or of an entity which is controlled by, controls or is under common
control with Tenant (or a valid assignee of this Lease), shall be subject to the
Landlord's consent (collectively, such entities, purchasers, and parties shall
be referred to herein collectively or individually as an "Affiliate"), provided
such assignment or sublease is not a subterfuge by Tenant to avoid its
obligations under this Lease. Tenant shall immediately notify Landlord of any
such assignment, purchase, transfer, sublease, action, or use. For purposes of
this Lease, "control" shall mean the possession, direct or indirect, of the
power to direct or cause the direction of the management and policies of a
person or entity, or majority ownership of any sort, whether through the
ownership of voting securities, by contract or otherwise.
22. AUTHORITY
Landlord represents and warrants that it has full right and authority to
enter into this Lease and to perform all of Landlord's obligations hereunder and
that all persons signing this Lease on its behalf are authorized to do. Tenant
represents and warrants that Tenant has full right and authority to enter into
this Lease, and to perform all of Tenant's obligations hereunder, and that all
persons signing this Lease on its behalf are authorized to do so.
23. CONDEMNATION
A. Condemnation Resulting in Termination. If the whole or any
substantial part of the Premises should be taken or condemned for any public use
under any Regulation, or by right of eminent domain, or by private purchase in
lieu thereof, and the taking would prevent or materially interfere with the
Permitted Use of the Premises, Tenant shall have the right to terminate this
Lease at its option. If any material portion of the Building or the Common Areas
is taken or condemned for any public use under any Regulation, or by right of
eminent domain, or by private purchase in lieu thereof, and the taking would
prevent or materially interfere with Landlord's ability to operate the Building
or the Common Areas, as reasonably determined by Landlord, Landlord may
terminate this Lease at its option. In either of such events, the Rent shall be
abated during the unexpired portion of this Lease, effective when the physical
taking of said Premises shall have occurred.
B. Condemnation Not Resulting in Termination. If a portion of the
Building of which the Premises are a part should be taken or condemned for any
public use under any Regulation, or by right of eminent domain, or by private
purchase in lieu thereof, and the taking prevents or materially interferes with
the Permitted Use of the Premises, and this Lease is not terminated as provided
in Paragraph 23.A. above, the Rent payable hereunder during the unexpired
portion of the Lease shall be reduced, beginning on the date when the physical
taking shall have occurred, to such amount as may be fair and reasonable under
all of the circumstances. Notwithstanding anything to the contrary contained in
this Paragraph, if the temporary use or occupancy of any part of the Premises
shall be taken or appropriated under power of eminent domain during the Term,
and such taking does not give rise to any termination right pursuant to Section
23.A. above, this Lease shall be and remain unaffected by such taking or
<PAGE>
appropriation and Tenant shall continue to pay in full all Rent payable
hereunder by Tenant during the Term; in the event of any such temporary
appropriation or taking, Tenant shall be entitled to receive that portion of any
award which represents compensation for the use of or occupancy of the Premises
during the Term, and Landlord shall be entitled to receive that portion of any
award which represents the cost of restoration of the Premises and the use and
occupancy of the Premises after the Term.
C. Award. Landlord shall be entitled to (and Tenant shall assign to
Landlord) any and all payment, income, rent, award or any interest therein
whatsoever which may be paid or made in connection with such taking or
conveyance and Tenant shall have no claim against Landlord or otherwise for any
sums paid by virtue of such proceedings, whether or not attributable to the
value of any unexpired portion of this Lease, except as expressly provided in
this Lease. Notwithstanding the foregoing, any compensation specifically and
separately awarded Tenant for the Tenant Improvements (but only to the extent of
the value of the Tenant Improvements which is attributable to that portion of
the Tenant Improvements, if any, which cost in excess of $42.00 per usable
square foot of the Premises), Tenant's personal property, fixtures and moving
costs, shall be and remain the property of Tenant.
D. Waiver of CCP (S) 1265.130. Each party waives the provisions of
California Civil Code Procedure Section 1265.130 allowing either party to
petition the superior court to terminate this Lease as a result of a partial
taking.
24. CASUALTY DAMAGE
A. General. If the Premises or Building should be damaged or
destroyed by fire, tornado, or other casualty (collectively, "Casualty") and
Tenant has determined that Landlord is not otherwise aware of such Casualty,
Tenant shall give immediate written notice thereof to Landlord. Within sixty
(60) days after the earlier of Landlord's receipt of such notice or Landlord's
becoming aware of the Casualty, Landlord shall notify Tenant whether in
Landlord's estimation (as reasonably certified by Landlord's contractor)
restoration of the Premises can reasonably be made within two hundred ten (210)
days from the date of such notice ("Landlord's Damage Notice"). Landlord's
contractor's reasonable determination shall be binding on Tenant.
B. Within 210 Days. If the Premises or Building should be damaged by
Casualty to such extent that restoration can in Landlord's estimation be
reasonably completed within two hundred ten (210) days after the earlier of the
date of such notice or Landlord's becoming aware of the Casualty, such casualty
is Fully Insured and the insurance proceeds are timely received by Landlord,
this Lease shall not terminate. Provided that insurance proceeds are received by
Landlord to fully repair the damage, Landlord shall proceed to rebuild and
repair the Premises (including the Existing Improvements) to its pre-existing
condition in a commercially reasonable and diligent manner, except that Landlord
shall not be required to rebuild, repair or replace any part of the Alterations
which may have been placed on or about the Premises by Tenant. If the Premises
are Untenantable in whole or in part following such damage, the Rent payable
hereunder during the period in which they are Untenantable shall be fully abated
to the extent the Premises are in fact Untenantable. As used herein,
"Untenantable" shall mean that the Premises, Common Areas, or Building's parking
facility are in such condition as would prevent or materially interfere with the
Permitted Use of the Premises or a material portion thereof, including
conditions which materially interfere with Tenant's access or ability to operate
its business in the ordinary course.
C. Greater than 210 Days. If the Premises or Building should be
damaged by Casualty to such extent that rebuilding or repairs cannot in
Landlord's contractor's estimation be reasonably completed within two hundred
ten (210) days after the earlier of the date of such notice or Landlord's
becoming aware of the Casualty, or such casualty is either not Fully Insured or
the insurance proceeds are not timely received by Landlord, then Landlord shall
either: (1) terminate this Lease effective upon the date of the occurrence of
such damage, in which event the Rent shall
<PAGE>
be abated during the unexpired portion of this Lease; or (2) rebuild or repair
the Premises (including the Existing Improvements) diligently and to its pre-
existing condition. Landlord shall notify Tenant of its election within thirty
(30) days after the earlier of Landlord's receipt of notice of the damage or
destruction or Landlord's becoming aware of the Casualty. Landlord may only
elect to terminate this Lease hereunder if Landlord terminates all leases of
similarly damaged space in the Building. Notwithstanding the above, Landlord
shall not be required to rebuild, repair or replace any part of any Alterations
which may have been placed, on or about the Premises by Tenant. If the Premises
are Untenantable in whole or in part following such damage, the Rent payable
hereunder during the period in which they are Untenantable shall be abated
proportionately, but only to the extent the Premises are Untenantable.
D. Tenant's Fault. Notwithstanding anything herein to the contrary,
if the Premises or any other portion of the Building are damaged by Casualty
resulting from the fault, negligence, or breach of this Lease by Tenant or any
of Tenant's Parties, Base Rent and Additional Rent shall not be diminished
during the repair of such damage (except to the extent of rental income
insurance proceeds actually received by Landlord) and Tenant shall be liable to
Landlord for the cost and expense of the repair and restoration of the Building
caused thereby to the extent (i) Landlord has maintained the insurance specified
in Section 8A and the subrogation waiver set forth in Section 9, and (ii) such
cost and expense is not covered by insurance proceeds.
E. Insurance Proceeds. Notwithstanding anything herein to the
contrary, if the Premises or Building are damaged or destroyed and are not Fully
Insured or if the holder of any indebtedness secured by a mortgage or deed of
trust covering the Premises requires that the insurance proceeds be applied to
such indebtedness in accordance with the terms of its mortgage and applicable
California law, then in either case Landlord shall have the right to terminate
this Lease by delivering written notice of termination to Tenant within thirty
(30) days after the date of notice to Landlord that said damage or destruction
is not Fully Insured or such requirement is made by any such holder, as the case
may be, whereupon this Lease shall terminate. As used herein, "Fully Insured"
shall mean that the casualty is covered by the insurance proceeds received by
Landlord, with the exception of any deductible pursuant to the applicable
insurance policy, Landlord's administrative costs, and any non-material
exclusions customarily found in the type of All Perils Policy required to be
maintained pursuant to Section 8A.
F. Waiver. This Paragraph 24 shall be Tenant's sole and exclusive
remedy in the event of damage or destruction to the Premises or the Building. As
a material inducement to Landlord entering into this Lease, Tenant hereby waives
any rights it may have under Sections 1932, 1933(4), 1941 or 1942 of the Civil
Code of California with respect to any destruction of the Premises, Landlord's
obligation for tenantability of the Premises and Tenant's right to make repairs
and deduct the expenses of such repairs, or under any similar law, statute or
ordinance now or hereafter in effect.
G. Tenant's Personal Property. In the event of any damage or
destruction of the Premises or the Building, except to the extent resulting from
Landlord's negligence or willful misconduct, under no circumstances shall
Landlord be required to repair any injury or damage to, or make any repairs to
or replacements of, Tenant's personal property.
H. Tenant's Termination Right. If Landlord does not elect to
terminate this Lease pursuant to Paragraph 24C above and if the estimated date
by which Landlord's repair obligations are expected to be sufficiently completed
so that Tenant can resume normal business operations in the affected portions of
the Premises (the "Estimated Completion Date") is greater than two hundred ten
(210) days after the date Landlord receives notice of the Casualty, Tenant may
elect, no later than thirty (30) days after Tenant's receipt of Landlord's
Damage Notice, to terminate this Lease by written notice to Landlord effective
as of the date specified in Tenant's notice, which date shall be not greater
than ninety (90) days after the date of delivery of Tenant's
<PAGE>
notice. Furthermore, if neither Landlord nor Tenant have terminated this Lease
and the repairs are not actually completed within two hundred ten (210) days
after the date Landlord receives notice of the Casualty (which two hundred ten
(210) day period shall be extended by Force Majeure Delays, not to exceed 60
days, and by any delays resulting from the acts or omissions of Tenant and/or
its agents, employees or contractors), Tenant shall have the right to terminate
this Lease within five (5) business days after the end of such period and
thereafter during the first five (5) business days after each calendar month
following the end of such period until such time as the repairs are complete, by
notice to Landlord (the "Damage Termination Notice"), effective as of the date
set forth in the Damage Termination Notice (the "Damage Termination Date"),
which Damage Termination Date shall not be less than five (5) business days
following the end of such period or each such month, as the case may be.
Notwithstanding the foregoing, if Tenant delivers a Damage Termination Notice to
Landlord, then Landlord shall have the right to suspend the occurrence of the
Damage Termination Date for a period ending thirty (30) days after the Damage
Termination Date set forth in the Damage Termination Notice by delivering to
Tenant, within five (5) business days of Landlord's receipt of the Damage
Termination Notice, a certificate of Landlord's contractor responsible for the
repair of the damage certifying that it is such contractor's reasonable judgment
that the repairs shall be substantially completed within thirty (30) days after
the Damage Termination Date. If repairs shall be substantially completed prior
to the expiration of such thirty (30) day period, then the Damage Termination
Notice shall be of no force or effect but if the repairs shall not be
substantially completed within such thirty (30) day period, then this Lease
shall terminate upon the expiration of such thirty (30) day period. If Landlord
undertakes repair and/or restoration pursuant to Paragraph 24B and thereafter
determines that it will not be able to complete the same within the two hundred
ten (210) day period set forth herein, then Landlord shall promptly notify
Tenant thereof and shall provide Tenant with Landlord's revised estimate of the
date upon which Landlord will complete the same ("Revised Completion Date").
Within ten (10) business days after Tenant's receipt of such notice, Tenant
shall have the right to elect to terminate this Lease or to agree to extend the
two hundred ten (210) day period to the Revised Completion Date. Tenant's
failure to elect to terminate or to extend such time period to the Revised
Completion Date by written notice to Landlord within such ten (10) business day
period shall be conclusively deemed to be Tenant's election to extend the time
to the Revised Completion Date. Upon any such termination of this Lease pursuant
to this Paragraph 24, Tenant shall pay the monthly Base Rent and Additional
Rent, properly apportioned up to such date of termination, and both parties
hereto shall thereafter be freed and discharged of all further obligations
hereunder, except as provided for in provisions of this Lease which by their
terms survive the expiration or earlier termination of the Term.
I. Last 12 Months of Term. Landlord and Tenant shall each have the
right to terminate this Lease in the event any material damage by Casualty
(i.e., damage that would otherwise give rise to a termination right under this
Article 24) occurs during the last twelve (12) months of the Term.
<PAGE>
25. HOLDING OVER
Unless Landlord expressly consents in writing to Tenant's holding over,
Tenant shall be unlawfully and illegally in possession of the Premises, whether
or not Landlord accepts any rent from Tenant or any other person while Tenant
remains in possession of the Premises without Landlord's written consent after
the Expiration Date or earlier termination of this Lease. If Tenant shall retain
possession of the Premises or any portion thereof without Landlord's consent
following the expiration of this Lease or sooner termination for any reason,
then (i) for the first two (2) months of any such holdover period, Tenant shall
pay to Landlord for each day of such retention Base Rent equal to 150% of the
amount of Base Rent as of the last month prior to the date of expiration or
earlier termination, and (ii) thereafter, Tenant shall pay to Landlord for each
day of such retention Base Rent equal to two hundred percent (200%) of the
amount of Base Rent as of the last month prior to the date of expiration or
earlier termination. Tenant shall also indemnify, defend, protect and hold
Landlord harmless from any loss, liability or cost, including consequential and
incidental damages and reasonable attorneys' fees, incurred by Landlord
resulting from delay by Tenant in surrendering the Premises, including, without
limitation, any claims made by the succeeding tenant founded on such delay.
Acceptance of Rent by Landlord following expiration or earlier termination of
this Lease, or following demand by Landlord for possession of the Premises,
shall not constitute a renewal of this Lease, and nothing contained in this
Paragraph 25 shall waive Landlord's right of reentry or any other right.
Additionally, if upon expiration or earlier termination of this Lease, or
following demand by Landlord for possession of the Premises, Tenant has not
fulfilled its obligation with respect to repairs and cleanup of the Premises or
any other Tenant obligations as set forth in this Lease, then, upon notice to
Tenant and the expiration of two (2) days following said notice, Landlord shall
have the right to perform any such obligations as it deems necessary at Tenant's
sole cost and expense, and any commercially reasonable time required by Landlord
to complete such obligations shall be considered a period of holding over and
the terms of this Paragraph 25 shall apply to the extent Landlord is delayed in
causing a new tenant to take occupancy of all or a portion of the Premises. The
provisions of this Paragraph 25 shall survive any expiration or earlier
termination of this Lease.
26. DEFAULT
A. Events of Default. The occurrence of any of the following shall
constitute an event of default on the part of Tenant:
(1) Abandonment. Abandonment of the Premises in accordance with
Section 1951.3 of the Civil Code of the State of California.
(2) Nonpayment of Rent. Failure to pay any installment of Rent
or any other amount due and payable hereunder within five (5) business days
following written notice that said amount is due, as to which time is of
the essence (which notice shall be in lieu of, and not in addition to, the
notice requirements of Section 1161 of the California Code of Civil
Procedure or any similar or successor law).
(3) Other Obligations. Failure to perform any obligation,
agreement or covenant under this Lease other than those matters specified
in subparagraphs (1) and (2) of this Paragraph 26.A., such failure
continuing for thirty (30) days after written notice of such failure, as to
which time is of the essence; provided that if the nature of such default
is such that the same cannot reasonably be cured within a thirty (30) day
period, Tenant shall not be deemed to be in default if it diligently
commences such cure within such period and thereafter diligently proceeds
to rectify and cure said default.
(4) General Assignment. A general assignment by Tenant for the
benefit of creditors.
<PAGE>
(5) Bankruptcy. The filing of any voluntary petition in
bankruptcy by Tenant, or the filing of an involuntary petition by Tenant's
creditors, which involuntary petition remains undischarged for a period of
sixty (60) days. If under applicable law, the trustee in bankruptcy or
Tenant has the right to affirm this Lease and continue to perform the
obligations of Tenant hereunder, such trustee or Tenant shall, in such time
period as may be permitted by the bankruptcy court having jurisdiction,
cure all defaults of Tenant hereunder outstanding as of the date of the
affirmance of this Lease and provide to Landlord such adequate assurances
as may be necessary to ensure Landlord of the continued performance of
Tenant's obligations under this Lease.
(6) Receivership. The employment of a receiver to take
possession of substantially all of Tenant's assets or Tenant's leasehold of
the Premises, if such appointment remains undismissed or undischarged for a
period of sixty (60) days after the order therefor.
(7) Attachment. The attachment, execution or other judicial
seizure of all or substantially all of Tenant's assets or Tenant's
leasehold of the Premises, if such attachment or other seizure remains
undismissed or undischarged for a period of sixty (60) days after the levy
thereof.
(8) Insolvency. The admission signed by Tenant in writing of
its inability to pay its debts as they become due.
B. Remedies Upon Default.
(1) Termination. In the event of the occurrence of any event of
default, Landlord shall have the right to give a written termination notice
to Tenant, and on the date specified in such notice, Tenant's right to
possession shall terminate, and this Lease shall terminate unless on or
before such date all Rent in arrears and all reimbursable costs and
expenses incurred by or on behalf of Landlord hereunder shall have been
paid by Tenant and all other events of default of this Lease by Tenant at
the time existing shall have been fully remedied to the satisfaction of
Landlord. At any time after such termination, Landlord may recover
possession of the Premises or any part thereof and expel and remove
therefrom Tenant and any other person occupying the same, including any
subtenant or subtenants notwithstanding Landlord's consent to any sublease,
by any lawful means, and again repossess and enjoy the Premises without
prejudice to any of the remedies that Landlord may have under this Lease,
or at law or equity by any reason of Tenant's default or of such
termination. Landlord hereby reserves the right, but shall not have the
obligation, to recognize the continued possession of any subtenant. The
delivery or surrender to Landlord by or on behalf of Tenant of keys, entry
codes, or other means to bypass security at the Premises shall not
terminate this Lease.
(2) Continuation After Default. Even though an event of default
may have occurred, this Lease shall continue in effect for so long as
Landlord does not terminate Tenant's right to possession under Paragraph
26.B.(1) hereof, and Landlord may enforce all of Landlord's rights and
remedies under this Lease and at law or in equity, including without
limitation, the right to recover Rent as it becomes due, and Landlord,
without terminating this Lease, may exercise all of the rights and remedies
of a landlord under Section 1951.4 of the Civil Code of the State of
California or any successor code section. Acts of maintenance, preservation
or efforts to lease the Premises or the appointment of a receiver under
application of Landlord to protect Landlord's interest under this Lease or
other entry by Landlord upon the Premises shall not constitute an election
to terminate Tenant's right to possession.
C. Damages After Default. Should Landlord terminate this Lease
pursuant to the provisions of Paragraph 26.B.(1) hereof, Landlord shall have the
rights and remedies of a Landlord provided by Section 1951.2 of the Civil Code
of the State of California, or any successor code sections. Upon such
termination, in addition to any other rights and remedies to which Landlord may
be entitled under applicable law or at equity, Landlord shall be entitled to
recover from Tenant: (1) the worth at the time
<PAGE>
of award of the unpaid Rent and other amounts which had been earned at the time
of termination, (2) the worth at the time of award of the amount by which the
unpaid Rent and other amounts that would have been earned after the date of
termination until the time of award exceeds the amount of such Rent loss that
Tenant proves could have been reasonably avoided; (3) the worth at the time of
award of the amount by which the unpaid Rent and other amounts for the balance
of the Term after the time of award exceeds the amount of such Rent loss that
the Tenant proves could be reasonably avoided; and (4) any other amount and
court costs necessary to compensate Landlord for all detriment proximately
caused by Tenant's failure to perform Tenant's obligations under this Lease or
which, in the ordinary course of things, would be likely to result therefrom.
The "worth at the time of award" as used in (1) and (2) above shall be computed
at the Applicable Interest Rate (defined below). The "worth at the time of
award" as used in (3) above shall be computed by discounting such amount at the
Federal Discount Rate of the Federal Reserve Bank of San Francisco at the time
of award plus one percent (1%).
D. Late Charge. In addition to its other remedies, Landlord shall
have the right without notice to add to the amount of any payment required to be
made by Tenant hereunder, and which is not paid and received by Landlord within
five (5) business days following the date that said amount is due, an amount
equal to ten percent (10%) of the delinquency for each month or portion thereof
that the delinquency remains outstanding to compensate Landlord for the loss of
the use of the amount not paid and the administrative costs caused by the
delinquency, the parties agreeing that Landlord's damage by virtue of such
delinquencies would be extremely difficult and impracticable to compute and the
amount stated herein represents a reasonable estimate thereof. Any waiver by
Landlord of any late charges or failure to claim the same shall not constitute a
waiver of other late charges or any other remedies available to Landlord.
E. Interest. Interest shall accrue on all sums not paid when due
hereunder at the lesser of the "prime rate" charged by Wells Fargo Bank, N.A.
(San Francisco) or its successor plus 2% per annum or the maximum interest rate
allowed by law ("Applicable Interest Rate") from the due date until paid.
F. Landlord's Default. Landlord shall not be in default under this
Lease unless Landlord fails to perform obligations required of Landlord within
thirty (30) days after written notice is delivered by Tenant to Landlord and to
the holder of any mortgages or deeds of trust (collectively, "Lender") covering
the Premises whose name and address shall have theretofore been furnished to
Tenant in writing, specifying the obligation which Landlord has failed to
perform; provided, however, that if the nature of Landlord's obligation is such
that more than thirty (30) days are required for performance, then Landlord
shall not be in default if Landlord or Lender commences performance within such
thirty (30) day period and thereafter diligently prosecutes the same to
completion within 60 days of such default.
G. Remedies Cumulative. All rights, privileges and elections or
remedies of the parties are cumulative and not alternative, to the extent
permitted by law and except as otherwise provided herein.
<PAGE>
27. LIENS
Tenant shall at all times keep the Premises and the Project free from liens
arising out of or related to work or services performed, materials or supplies
furnished or obligations incurred by or on behalf of Tenant or in connection
with work made, suffered or done by or on behalf of Tenant in or on the Premises
or Project. If Tenant shall not, within ten (10) business days following receipt
of notice of the imposition of any such lien, cause the same to be released of
record by payment or posting of a proper bond, Landlord shall have, in addition
to all other remedies provided herein and by law, the right, but not the
obligation, to cause the same to be released by such means as Landlord shall
deem proper, including payment of the claim giving rise to such lien. All sums
paid by Landlord on behalf of Tenant and all expenses incurred by Landlord in
connection therefor shall be payable to Landlord by Tenant on demand with
interest at the Applicable Interest Rate as Additional Rent. Landlord shall have
the right at all times to post and keep posted on the Premises any notices
permitted or required by law, or which Landlord shall deem proper, for the
protection of Landlord, the Premises, the Project and any other party having an
interest therein, from mechanics' and materialmen's liens, and Tenant shall give
Landlord not less than ten (10) business days prior written notice of the
commencement of any work in the Premises or Project which could lawfully give
rise to a claim for mechanics' or materialmen's liens to permit Landlord to post
and record a timely notice of non-responsibility, as Landlord may elect to
proceed or as the law may from time to time provide, for which purpose, if
Landlord shall so determine, Landlord may enter the Premises in accordance with
the provisions of this Lease. Tenant shall not remove any such notice posted by
Landlord without Landlord's consent, and in any event not before completion of
the work which could lawfully give rise to a claim for mechanics' or
materialmen's liens.
28. INTENTIONALLY OMITTED.
29. TRANSFERS BY LANDLORD
In the event of a sale or conveyance by Landlord of the Building or a
foreclosure by any creditor of Landlord and provided said transferee (other than
a creditor of Landlord) assumes Landlord's obligations under this Lease, the
same shall operate to release Landlord from any liability upon any of the
covenants or conditions, express or implied, herein contained in favor of
Tenant, to the extent required to be performed after the passing of title to
Landlord's successor-in-interest. In such event, Tenant agrees to look solely to
the responsibility of the successor-in-interest of Landlord under this Lease
with respect to the performance of the covenants and duties of "Landlord" to be
performed after the passing of title to Landlord's successor-in-interest. This
Lease shall not be affected by any such sale and Tenant agrees to attorn to the
purchaser or assignee. Landlord's successor(s)-in-interest shall not have
liability to Tenant with respect to the failure to perform any of the
obligations of "Landlord," to the extent required to be performed prior to the
date such successor(s)-in-interest became the owner of the Building (which
obligations shall continue to be the obligations of Landlord).
<PAGE>
30. RIGHT OF LANDLORD TO PERFORM TENANT'S COVENANTS
All covenants and agreements to be performed by Tenant under any of the
terms of this Lease shall be performed by Tenant at Tenant's sole cost and
expense and without any abatement of Rent, except as otherwise provided herein.
If Tenant shall fail to pay any sum of money, other than Base Rent, required to
be paid by Tenant hereunder or shall fail to perform any other act on Tenant's
part to be performed hereunder, including Tenant's obligations under Paragraph
11 hereof, and such failure shall continue for thirty (30) days after written
notice thereof by Landlord, in addition to the other rights and remedies of
Landlord, Landlord may make any such payment and perform any such act on
Tenant's part. In the case of an emergency, no prior notification by Landlord
shall be required. Landlord may take such actions without any obligation and
without releasing Tenant from any of Tenant's obligations. All sums so paid by
Landlord and all incidental costs incurred by Landlord and interest thereon at
the Applicable Interest Rate, from the date of payment by Landlord, shall be
paid to Landlord on demand as Additional Rent.
31. WAIVER
If either Landlord or Tenant waives the performance of any term, covenant
or condition contained in this Lease, such waiver shall not be deemed to be a
waiver of any subsequent breach of the same or any other term, covenant or
condition contained herein, or constitute a course of dealing contrary to the
expressed terms of this Lease. The acceptance of Rent by Landlord shall not
constitute a waiver of any preceding breach by Tenant of any term, covenant or
condition of this Lease, regardless of Landlord's knowledge of such preceding
breach at the time Landlord accepted such Rent. Payment by Tenant of any amount
due and owing hereunder shall not constitute a waiver of any preceding breach by
Landlord of any term, covenant or condition of this Lease. Failure by Landlord
or Tenant to enforce any of the terms, covenants or conditions of this Lease for
any length of time shall not be deemed to waive or decrease the right of
Landlord or Tenant, as applicable, to insist thereafter upon strict performance
by the other party. Waiver by Landlord or Tenant of any term, covenant or
condition contained in this Lease may only be made by a written document signed
by Landlord or Tenant, as applicable.
32. NOTICES
Each provision of this Lease or of any applicable governmental laws,
ordinances, regulations and other requirements with reference to sending,
mailing, or delivery of any notice or the making of any payment by Landlord or
Tenant to the other shall be deemed to be complied with when and if the
following steps are taken:
A. Rent. All Rent and other payments required to be made by Tenant
to Landlord hereunder shall be payable to Landlord at Landlord's Remittance
Address set forth in the Basic Lease Information, or at such other address as
Landlord may specify from time to time by 30 days written notice delivered in
accordance herewith. Tenant's obligation to pay Rent and any other amounts to
Landlord under the terms of this Lease shall not be deemed satisfied until such
Rent and other amounts have been actually received by Landlord.
B. Other. All notices, demands, consents and approvals which may or
are required to be given by either party to the other hereunder shall be in
writing and either personally delivered, sent by commercial overnight courier,
mailed, certified or registered, postage prepaid or sent by facsimile with
confirmed receipt (and with an original sent by commercial overnight courier),
and in each case addressed to the party to be notified at the Notice Address for
such party as specified in the Basic Lease Information or to such other place as
the party to be notified may from time to time designate by at least fifteen
(15) days notice to the notifying party (provided that a copy of any notice to
be sent to Tenant hereunder shall also be sent to Tenant's counsel, Donald I.
Berger, Esq., at Morrison & Foerster, 555 West Fifth Street, Los Angeles,
<PAGE>
California 90013, Fax No. (213) 892-5454). Notices shall be deemed served upon
receipt or refusal to accept delivery.
C. Required Notices. Tenant shall immediately notify Landlord in
writing of any notice of a violation or of any Regulation that relates to the
Premises or the Project, or to the extent Tenant has received notice thereof, of
any inquiry, investigation, enforcement or other action that is instituted or
threatened by any governmental or regulatory agency against Tenant or any other
occupant of the Premises, or any claim that is instituted or threatened by any
third party that relates to the Premises or the Project.
33. ATTORNEYS' FEES
In any action which Landlord or Tenant brings to enforce its respective
rights hereunder, the unsuccessful party shall pay all costs incurred by the
prevailing party including reasonable attorneys' fees, to be fixed by the court,
and said costs and attorneys' fees shall be a part of the judgment in said
action.
34. SUCCESSORS AND ASSIGNS
This Lease shall be binding upon and inure to the benefit of Landlord, its
successors and assigns, and shall be binding upon and inure to the benefit of
Tenant, its successors, and to the extent assignment is approved by Landlord as
provided hereunder, Tenant's assigns.
35. FORCE MAJEURE
If performance by a party of any portion of this Lease is made impossible
by any prevention, delay, or stoppage caused by strikes, lockouts, labor
disputes, acts of God, inability to obtain services, labor, or materials or
reasonable substitutes for those items, government actions (or governmental
delays, provided that Tenant has the burden of proving the existence of a
governmental delay), civil commotions, fire or other casualty, or other causes
beyond the reasonable control of the party obligated to perform, performance by
that party for a period equal to the period of that prevention, delay, or
stoppage (a "Force Majeure Delay") is excused. Tenant's obligation to pay Rent,
however, is not excused by this Paragraph 35.
<PAGE>
36. SURRENDER OF PREMISES
Tenant shall, upon expiration or sooner termination of this Lease,
surrender the Premises to Landlord in the same condition as existed on the date
Tenant originally took possession thereof, reasonable wear and tear, damage and
destruction which is not Tenant's obligation to repair, and approved Alterations
which Landlord has not required Tenant to remove excepted. Tenant shall remove
all of its debris from the Project. At or before the time of surrender, Tenant
shall comply with the terms of Paragraph 12.A. hereof with respect to
Alterations to the Premises and all other matters addressed in such Paragraph.
If the Premises are not so surrendered at the expiration or sooner termination
of this Lease, the provisions of Paragraph 25 hereof shall apply. All keys to
the Premises or any part thereof in Tenant's possession shall be surrendered to
Landlord upon expiration or sooner termination of the Term. Tenant shall give
written notice to Landlord at least thirty (30) days prior to vacating the
Premises and shall meet with Landlord for a joint inspection of the Premises at
the time of vacating, but nothing contained herein shall be construed as an
extension of the Term or as a consent by Landlord to any holding over by Tenant.
In the event of Tenant's failure to give such notice and Tenant's failure to
participate in such joint inspection (after Landlord's written request to Tenant
to meet Landlord for a joint inspection), Landlord's inspection at or after
Tenant's vacating the Premises shall conclusively be deemed correct for purposes
of determining Tenant's responsibility for repairs and restoration.
Notwithstanding anything to the contrary contained herein, (i) but subject to
the terms of Paragraph 15E above, upon the expiration of the Term of this Lease,
or upon any earlier termination of this Lease, Tenant may, at its expense,
remove or cause to be removed from the Premises any security system installed by
Tenant in the Premises provided that Tenant shall repair all damage resulting
from such removal, and (ii) if the Tenant Improvements or any Alterations
include the installation of an interior stairwell between the first and second
floors of the Premises, Tenant shall be responsible for removing said stairwell,
at Tenant's cost, upon the expiration or earlier termination of this Lease and
repairing any damage caused by such removal.
37. PARKING
Tenant and Tenant's Parties shall have the right to lease up to twenty-
seven (27) unreserved parking permits in the parking facility serving the
Building. Tenant shall furthermore have the right, and the obligation, to lease
(at the then prevailing parking rates for the applicable parking permits) (i)
twenty-seven (27) reserved parking permits, and (ii) thirty-six (36) tandem
permits. The location of Tenant's reserved and tandem parking spaces shall be
identified on Exhibit "E" attached hereto. Each parking permit shall entitle
Tenant to park one (1) automobile in the Building's parking facility, subject to
the remaining provisions of this Article 37.
Tenant may request additional parking spaces from time to time (in
accordance with the terms set forth in the Basic Lease Information) and if
Landlord in its sole discretion (but on a non-discriminatory basis) agrees to
make such additional spaces available for use by Tenant, such spaces shall be
provided on a month-to-month unreserved and nonexclusive basis, and subject to
such parking charges as Landlord shall determine, and shall otherwise be subject
to such terms and conditions as Landlord may reasonably require.
Tenant shall at all times comply and shall cause all Tenant's Parties and
visitors to comply with all Regulations and any reasonable, non-discriminatory
rules and regulations established from time to time by Landlord relating to
parking at the Project, including any keycard, sticker or other identification
or entrance system, as applicable.
Except to the extent resulting from Landlord's negligence or willful
misconduct, and subject to the terms of Articles 8 and 9 above, Landlord shall
have no liability for any damage to property or other items located in the
parking areas of the Project, nor for any personal injuries or death arising out
of the use of parking areas in the Project by Tenant or any Tenant's Parties.
Without limiting the foregoing, except to the extent
<PAGE>
resulting from Landlord's negligence or willful misconduct, and subject to the
terms of Articles 8 and 9 above, if Landlord arranges for the parking areas to
be operated by an independent contractor not affiliated with Landlord, Tenant
acknowledges that Landlord shall have no liability for claims arising through
acts or omissions of such independent contractor. Except as otherwise provided
herein, in all events which are covered by insurance which Tenant is required to
obtain pursuant to this Lease, Tenant agrees to look first to its insurance
carrier for any insurable losses sustained in connection with any use of the
parking areas; provided, however, that the foregoing shall not effect Tenant's
rights to seek to recover any deductible amounts or any uninsured costs
incurred.
Landlord reserves the right to assign specific spaces, and to reserve
spaces for visitors, small cars, disabled persons or for other tenants or
guests, and Tenant shall not park and shall not allow Tenant's Parties to park
in any such assigned or reserved spaces. Tenant may validate visitor parking by
such non-discriminatory method as Landlord may approve, at the validation rate
from time to time generally applicable to visitor parking, provided that
Landlord agrees that the visitor parking rates being charged by Landlord shall
be reasonably comparable to the visitor parking rate being charged at other
first-class office buildings in the Santa Monica Special Office District.
Landlord also reserves the right to temporarily alter, modify, relocate or close
all or any portion of the parking areas in order to make repairs or perform
maintenance service, or to restripe or renovate the parking areas, or if
required by casualty, condemnation, act of God, Regulations or for any other
reason deemed reasonable by Landlord, provided that if any such work restricts
Tenant from parking the number of automobiles to which it is entitled to park in
the parking structure and/or lot serving the Building, Landlord shall use its
commercially reasonable efforts to provide Tenant with alternate parking within
the Building's parking facility and shall in any event provide Tenant with
alternate parking within a reasonable proximity to the Premises.
Tenant shall pay to Landlord (or Landlord's parking contractor, if so
directed in writing by Landlord), as Additional Rent hereunder, the monthly
charges established from time to time by Landlord for parking in the parking
areas in which Tenant has been granted parking rights (which shall initially be
the charge specified in the Base Lease Information, as applicable). Such parking
charges shall be payable in advance with Tenant's payment of Base Rent. No
deductions from the monthly parking charge shall be made for days on which the
Tenant does not use any of the parking spaces entitled to be used by Tenant.
38. MISCELLANEOUS
A. General. The term "Tenant" or any pronoun used in place thereof
shall indicate and include the masculine or feminine, the singular or plural
number, individuals, firms or corporations, and their respective successors,
executors, administrators and permitted assigns, according to the context
hereof.
B. Time. Time is of the essence regarding this Lease and all of its
provisions.
C. Choice of Law. This Lease shall in all respects be governed by
the laws of the State of California.
D. Entire Agreement. This Lease, together with its Exhibits, addenda
and attachments and the Basic Lease Information, contains all the agreements of
the parties hereto and supersedes any previous negotiations. There have been no
representations made by the Landlord or understandings made between the parties
other than those set forth in this Lease and its Exhibits, addenda and
attachments and the Basic Lease Information.
E. Modification. This Lease may not be modified except by a written
instrument signed by the parties hereto. Tenant and Landlord accept the area of
the Premises as specified in the Basic Lease Information as the approximate area
of the
<PAGE>
Premises for all purposes under this Lease, and acknowledge and agree that no
other definition of the area (rentable, usable or otherwise) of the Premises
shall apply. Neither Landlord nor Tenant shall be entitled to a recalculation of
the square footage of the Premises, rentable, usable or otherwise, and no
recalculation, if made, irrespective of its purpose, shall modify Tenant's or
Landlord's obligations under this Lease in any manner, including without
limitation the amount of Base Rent payable by Tenant or Tenant's Proportionate
Share of the Building and of the Project.
F. Severability. If, for any reason whatsoever, any of the
provisions hereof shall be unenforceable or ineffective, all of the other
provisions shall be and remain in full force and effect.
G. Recordation. Tenant shall not record this Lease or a short form
memorandum hereof.
H. Examination of Lease. Submission of this Lease to Tenant does not
constitute an option or offer to lease and this Lease is not effective otherwise
until execution and delivery by both Landlord and Tenant.
I. Accord and Satisfaction. No payment by Tenant of a lesser amount
than the total Rent due nor any endorsement on any check or letter accompanying
any check or payment of Rent shall be deemed an accord and satisfaction of full
payment of Rent, and Landlord may accept such payment without prejudice to
Landlord's right to recover the balance of such Rent or to pursue other
remedies. All offers by or on behalf of Tenant of accord and satisfaction are
hereby rejected in advance.
J. Easements. Landlord may grant easements on the Project and
dedicate for public use portions of the Project without Tenant's consent;
provided that no such grant or dedication shall materially interfere with
Tenant's Permitted Use of the Premises. Upon Landlord's request, Tenant shall
execute, acknowledge and deliver to Landlord documents, instruments, maps and
plats necessary to effectuate Tenant's covenants hereunder.
K. Drafting and Determination Presumption. The parties acknowledge
that this Lease has been agreed to by both the parties, that both Landlord and
Tenant have consulted with attorneys with respect to the terms of this Lease and
that no presumption shall be created against Landlord because Landlord drafted
this Lease. Except as otherwise specifically set forth in this Lease, with
respect to any consent, determination or estimation of Landlord required or
allowed in this Lease or requested of Landlord, Landlord's consent,
determination or estimation shall be given or made solely by Landlord in
Landlord's good faith opinion, whether or not objectively reasonable. If
Landlord fails to respond to any request for its consent within the time period,
if any, specified in this Lease, Landlord shall be deemed to have disapproved
such request.
L. Exhibits. The Basic Lease Information, and the Exhibits, addenda
and attachments attached hereto are hereby incorporated herein by this reference
and made a part of this Lease as though fully set forth herein.
M. No Light, Air or View Easement. Any diminution or shutting off of
light, air or view by any structure which may be erected on lands adjacent to or
in the vicinity of the Building shall in no way affect this Lease or impose any
liability on Landlord.
N. No Third Party Benefit. This Lease is a contract between Landlord
and Tenant and nothing herein is intended to create any third party benefit.
O. Quiet Enjoyment. Upon payment by Tenant of the Rent, and upon the
observance and performance of all of the other covenants, terms and conditions
on Tenant's part to be observed and performed, Tenant shall peaceably and
<PAGE>
quietly hold and enjoy the Premises for the term hereby demised without
hindrance or interruption by Landlord or any other person or persons lawfully or
equitably claiming by, through or under Landlord, subject, nevertheless, to all
of the other terms and conditions of this Lease. Landlord shall not be liable
for any hindrance, interruption, interference or disturbance by other tenants or
third persons to the extent Landlord uses its commercially reasonable efforts to
enforce any contractual restrictions governing such conduct, nor, if Landlord
has undertaken such commercially reasonable efforts, shall Tenant be released
from any obligations under this Lease because of such hindrance, interruption,
interference or disturbance, except as otherwise provided herein.
P. Counterparts. This Lease may be executed in any number of
counterparts, each of which shall be deemed an original.
Q. Multiple Parties. If more than one person or entity is named
herein as Tenant, such multiple parties shall have joint and several
responsibility to comply with the terms of this Lease.
R. Prorations. Any Rent or other amounts payable to Landlord by
Tenant hereunder for any fractional month shall be prorated based on the actual
number of days in such month. As used herein, the term "fiscal year" shall mean
the calendar year or such other fiscal year as Landlord may deem appropriate.
39. ADDITIONAL PROVISIONS
A. Early Entry into Premises. Tenant may enter into the Premises
prior to the Term Commencement date, solely for the purpose of installing
furniture, trade fixtures, telephones and computer equipment. Such early entry
will not advance the Term Commencement Date so long as Tenant does not commence
business operations from any part of the Premises. All of the provisions of this
Lease shall apply to Tenant during any early entry, including the indemnity in
Section 8.C. but excluding the obligation to pay Rent unless and until Tenant
has commenced business operations in the Premises, whereupon Rent shall commence
in accordance with Section 2A above. Tenant shall not be obligated to pay any
charges for electricity, HVAC, water, elevators, parking or access to loading
docks during such early entry period. Landlord may revoke its permission for
Tenant's early entry if Tenant's activities or workers interfere with the
completion of the Tenant Improvements, provided that (i) Landlord and Tenant
agree to use their commercially reasonable efforts to coordinate their
respective schedules and improvement work to enable Tenant's early entry work to
be performed concurrently with the completion of the Tenant Improvements, and
(ii) Tenant acknowledges that in the event of a conflict between Landlord's and
Tenant's respective schedules or any interference by Tenant with the performance
of the Tenant Improvements, the completion of the Tenant Improvements shall have
first priority and accordingly Tenant will accommodate Landlord's scheduling
requests and not interfere with the performance of the Tenant Improvements. If
Tenant is granted early entry, Landlord shall not be responsible for any loss,
including theft, damage or destruction to any work or material installed or
stored by Tenant at the Premises or for any injury to Tenant or Tenant's
Parties. Landlord shall have the right to post appropriate notices of non-
responsibility and to require Tenant to provide Landlord with evidence that
Tenant has fulfilled its obligation to provide insurance pursuant to this Lease.
B. Option to Renew. Tenant shall, provided this Lease is in full
force and effect and Tenant is not and has not been in default on more than
three (3) occasions under any of the terms and conditions of this Lease, beyond
all applicable notice and cure periods, have one (1) option to renew this Lease
for a term of five (5) years (the "Option Term") for the entire Premises on the
same terms and conditions set forth in this Lease, except as modified by the
terms, covenants and conditions set forth below:
(1) If Tenant elects to exercise such option, then Tenant
shall provide Landlord with written notice no earlier than the
date
<PAGE>
which is twelve (12) months prior to the expiration of the then
current term of this Lease, but no later than 5:00 p.m. (Pacific
Standard Time) on the date which is nine (9) months prior to the
expiration of the then current term of this Lease. If Tenant fails
to timely provide such notice, Tenant shall have no further or
additional right to extend or renew the term of this Lease.
(2) The rent payable by Tenant during the Option Term (the
"Option Rent") shall be equal to (i) one hundred percent (100%) of
the "face" or "stated" rental rate (including any escalation
thereof if escalations are contained in such "Comparable Deals,"
as that term is defined below), at which tenants, as of the
commencement of the Option Term, are leasing non-sublease, non-
encumbered, non-equity, non-expansion and non-renewal space
comparable in size, location and quality to the Premises for a
term of five (5) years, which comparable space is located in
comparable office buildings in Santa Monica, California (the
"Comparable Projects"), comparable in age, location, services and
amenities (the "Comparable Deals"); and shall take into account
(ii) one hundred percent (100%) of the following concessions,
which shall be granted by Landlord to Tenant to the extent granted
in Comparable Deals (collectively, the "Option Concessions"): (a)
any operating expense and tax protection granted in such
Comparable Deals (e.g., "base year" or "expense stop" protection),
(b) rental abatement concessions, if any, being given such tenants
in connection with such Comparable Deals, (c) tenant improvements
or allowances provided or to be provided for such Comparable
Deals, and (d) all other monetary concessions, if any, being
granted such tenants in connection with such comparable space;
provided, however, that (A) in determining any tenant improvements
or allowances provided in Comparable Deals, Landlord and Tenant
shall also take into account and credit Landlord for the value to
a general office user of the existing improvements in the
Premises, and (B) notwithstanding anything to the contrary
contained herein, no consideration shall be given to the fact that
Landlord is or is not required to pay a real estate brokerage
commission in connection with Tenant's exercise of its right to
lease the Premises during the Option Term.
(3) Landlord shall advise Tenant of the new Base Rent for
the Premises for the renewal term based on Landlord's
determination of fair market rental value, as well as the terms
and conditions for the renewal term, no later than fifteen (15)
days after receipt of notice of Tenant's exercise of its option to
renew.
(4) Landlord and Tenant shall negotiate in good faith to
agree on the fair market rental value of the Premises and terms
and conditions for the renewal term. If Tenant and Landlord are
unable to agree on a mutually acceptable rental rate for the
renewal term within thirty (30) days after notification by
Landlord to Tenant of Landlord's determination of the new Base
Rent for the renewal term, but in any event no later than the date
which is ninety (90) days prior to the expiration of the then
current term, then on or before such date Landlord and Tenant
shall each appoint a licensed real estate broker with at least ten
(10) year's experience in leasing office space in the area in
which the Building is located to act as arbitrators. The two (2)
arbitrators so appointed shall determine the fair market rental
value for the Premises for the applicable renewal term based on
the above criteria and each shall submit his or her determination
of such fair market rental value to
<PAGE>
Landlord and Tenant in writing, within sixty (60) days after their
appointment.
If the two (2) arbitrators so appointed cannot agree on
the fair market rental value for the renewal term within such 60-
day period, the two (2) arbitrators shall within five (5) days
thereafter appoint a third arbitrator who shall be a licensed real
estate broker with at least ten (10) year's experience in leasing
office space in the area in which the Building is located. The
third arbitrator so appointed shall independently determine the
fair market rental value for the Premises for the renewal term
within thirty (30) days after appointment, by selecting from the
proposals submitted by each of the first two arbitrators the one
that most closely approximates the third arbitrator's
determination of such fair market rental value. The third
arbitrator shall have no right to adopt a compromise or middle
ground or any modification of either of the proposals submitted by
the first two arbitrators. The proposal chosen by the third
arbitrator as most closely approximating the third arbitrator's
determination of the fair market rental value shall constitute the
decision and award of the arbitrators and shall be final and
binding on the parties.
Each party shall pay the fees and expenses of the
arbitrator appointed by such party and one-half (1/2) of the fees
and expenses of the third arbitrator.
If either party fails to appoint an arbitrator, or if
either of the first two arbitrators fails to submit his or her
proposal of fair market rental value to the other party, in each
case within the time periods set forth above, then the decision of
the other party's arbitrator shall be considered final and
binding.
In the event the third arbitrator fails to present a
fair market rental value within such 30-day period, then by mutual
consent of the Landlord and Tenant :
(a) the time period will be extended, or
(b) If either Landlord or Tenant do not wish to extend the time
period, a fourth arbitrator shall be selected by the first
two arbitrators and a new thirty (30) day period shall
begin.
(5) Tenant's right to exercise the option to renew under
this Paragraph 39B shall be conditioned upon Tenant directly
occupying no less than 80% of the entire Premises at the time of
exercise of the option and commencement of the renewal term.
(6) Any exercise by Tenant of the option to renew under
this Paragraph 39B shall be irrevocable. If requested by Landlord,
Tenant agrees to execute a lease amendment reflecting the
foregoing terms and conditions, prior to the commencement of the
renewal term. The option to renew granted under this Paragraph 39B
is not transferable; the parties hereto acknowledge and agree that
they intend that the option to renew this Lease under this
Paragraph shall be "personal" to the specific Tenant named in this
Lease (the "Original Tenant"), any Affiliate and any permitted
assignee which has been approved by Landlord pursuant to the terms
of this Lease and that in no event will any other assignee or
sublessee have any rights to exercise such option to renew.
<PAGE>
All references in this Paragraph 39B to the "Premises" shall mean and refer
to the entire Premises.
C. Tenant's Signage. Subject to the approval of all necessary
governmental or regulatory agencies with jurisdiction over the Building and
provided Tenant is not in default under this Lease beyond applicable notice and
cure provisions, Original Tenant and any Affiliate of Tenant (and not any other
assignee, sublessee or other transferee of the Original Tenant's interest in
this Lease) shall have the non-exclusive right, at its expense, to install its
name on the second line on the "2120 Building" side of the monument sign which
Landlord will install, at its cost and expense, in a location adjacent to the
Colorado Avenue entrance to the Building; providing, however, that such
identification signage shall comply with the signage criteria set forth in
Exhibit "G" attached hereto. The exact location of such monument sign shall be
selected by Landlord, in its sole discretion. Without limiting the generality of
the foregoing, Tenant shall be responsible, at it expense, only for the costs
associated with the acquisition, design, fabrication, installation, maintenance
and removal of Tenant's specific sign located on such monument sign. Landlord
shall not charge Tenant any rent or other charges for Tenant's monument signage
rights set forth in this paragraph. Notwithstanding the foregoing, a permitted
subtenant of the Premises or assignee of Tenant shall have the right to use
Tenant's monument signage to the extent Landlord, in its reasonable discretion,
determines that (i) the character, image and reputation of said subtenant or
assignee is consistent with the character, image and reputation of the other
tenants in the Project, and (ii) allowing said subtenant or assignee to use
Tenant's monument signage will not impair or injure the reputation or image of
the Project.
D. Letter of Credit. Notwithstanding anything to the contrary
contained in Article 19 above, concurrently with the execution of this Lease by
Tenant, Tenant shall have the right to deliver its security deposit to Landlord
in the form of an irrevocable standby letter of credit in favor of Landlord (the
"Letter of Credit"). The Letter of Credit may be drawn against by Landlord after
any default by Tenant under this Lease (after the expiration of any applicable
notice and cure period) and the Letter of Credit shall be reduced in the same
amounts and on the same dates as the security deposit is reduced pursuant to
Article 19 above (and subject to the same conditions to reduction set forth
therein) (which reduction shall be effectuated by the issuance to Landlord of a
new Letter of Credit in such reduced amount, but otherwise in compliance with
the terms of this Paragraph 39D). Tenant shall retain from time to time the
right to cancel the Letter of Credit at any time provided Tenant concurrently
replaces such Letter of Credit being canceled with cash in an amount equal to
the then outstanding amount of the Letter of Credit which was canceled. The
Letter of Credit, if any, shall be (i) from a bank reasonably acceptable to
Landlord, (ii) in the form and content of that attached hereto as Exhibit "F,"
and (iii) subject to the conditions stated in this paragraph. The Letter of
Credit shall have a term of at least 12 months and be automatically renewed (or
a reasonably satisfactory replacement Letter of Credit from a bank reasonably
acceptable to Landlord shall be in place in strict accordance with the terms
hereof) at least thirty (30) days prior to expiration of each 12 month period
for additional periods of 12 months each until the 30th day following the
expiration of the Term (or until all restoration work required in connection
with the removal of any interior stairwell installed by Tenant between the first
and second floors of the Premises is completed). The Letter of Credit shall be
held by Landlord as additional security for the full and faithful performance by
Tenant of the terms, covenants and conditions of this Lease during the Term.
If Tenant breaches any of the terms or conditions of this Lease, beyond the
expiration of all applicable notice and cure periods, or if Tenant has filed a
voluntary petition under the United States Bankruptcy Code, or Tenant's
creditors have filed an involuntary petition under the United States Bankruptcy
Code, then Landlord may draw upon all or a portion of the Letter of Credit for
the payment of the required amount of any sum in default, and for the payment of
any amount that Landlord may spend or may become obligated to spend by reason of
Tenant's default, and to compensate
<PAGE>
Landlord for any other loss or damage that Landlord suffers by reason of
Tenant's default to the extent Landlord is entitled to compensation therefor
pursuant to the terms of this Lease (any amount of the Letter of Credit which is
drawn upon by Landlord in accordance with the provisions hereof, but is not used
or applied in accordance with the terms of this Lease, shall be deemed a part of
the Security Deposit). The use, application or retention of the Letter(s) of
Credit, or any portion thereof, shall not prevent Landlord from exercising any
other rights or remedies provided under this Lease, it being intended that
Landlord shall not be required to proceed against the Security Deposit and/or
the Letter of Credit, and shall not operate as a limitation on any recovery to
which Landlord may otherwise be entitled.
E. Balconies. Tenant acknowledges and agrees that (i) Tenant has
access to certain balconies located outside of the Premises which are designed
to house potted plants (the "Plant Balconies"); (ii) Tenant is responsible for
supervising and controlling access to the Plant Balconies by Tenant's employees,
officers, directors, shareholders, agents, representatives, contractors and/or
invitees; (iii) Landlord is not responsible for supervising and controlling
access to the Plant Balconies; and (iv) Tenant assumes the risk for any loss,
claim, damages or liability arising out of the use or misuse of the Plant
Balconies by Tenant's employees, officers, directors, shareholders, agents,
representatives, contractors and/or invitees, and Tenant releases and discharges
Landlord from and against any such loss, claim, damage or liability. Tenant
further agrees to indemnify, defend and hold Landlord harmless from and against
any and all losses and claims relating to or arising out of the use or misuse of
the Plant Balconies by Tenant or Tenant's employees, officers, officers,
shareholders, directors, agents, representatives, contractors and/or invitees.
Notwithstanding the foregoing, Tenant furthermore agrees (A) not to store or
place any personal property or other items upon said Plant Balconies, (B) to use
and keep the appearance of the Plant Balconies in a manner consistent with a
first-class office building, and (C) not to use the Plant Balconies as an area
for people to congregate or as a smoking area or for other similar purposes.
40. STANDARD FOR CONDUCT AND CONSENT
Notwithstanding anything to the contrary contained in the Lease, except to
the extent this Lease provides that Landlord's or Tenant's approval or consent
may be given or withheld in such party's "sole" or "absolute" discretion, any
time the consent of Landlord or Tenant is required, such consent shall not be
unreasonably withheld, conditioned or delayed. Except as otherwise provided in
this Lease, whenever this Lease grants Landlord or Tenant the right to take
action, exercise discretion, establish rules and regulations or make allocations
or other determinations, Landlord and Tenant shall act reasonably and in good
faith.
<PAGE>
41. JURY TRIAL WAIVER
EACH PARTY HERETO (WHICH INCLUDES ANY ASSIGNEE, SUCCESSOR HEIR OR PERSONAL
REPRESENTATIVE OF A PARTY) SHALL NOT SEEK A JURY TRIAL, HEREBY WAIVES TRIAL BY
JURY, AND HEREBY FURTHER WAIVES ANY OBJECTION TO VENUE IN THE COUNTY IN WHICH
THE BUILDING IS LOCATED, AND AGREES AND CONSENTS TO PERSONAL JURISDICTION OF THE
COURTS OF THE STATE IN WHICH THE PROPERTY IS LOCATED, IN ANY ACTION OR
PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY HERETO AGAINST THE OTHER ON ANY
MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE, THE
RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S USE OR OCCUPANCY OF THE PREMISES,
OR ANY CLAIM OF INJURY OR DAMAGE, OR THE ENFORCEMENT OF ANY REMEDY UNDER ANY
STATUTE, EMERGENCY OR OTHERWISE, WHETHER ANY OF THE FOREGOING IS BASED ON THIS
LEASE OR ON TORT LAW. EACH PARTY REPRESENTS THAT IT HAS HAD THE OPPORTUNITY TO
CONSULT WITH LEGAL COUNSEL CONCERNING THE EFFECT OF THIS PARAGRAPH 41. THE
PROVISIONS OF THIS PARAGRAPH 41 SHALL SURVIVE THE EXPIRATION OR EARLIER
TERMINATION OF THIS LEASE.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
day and the year first above written.
LANDLORD
Spieker Properties, L.P.,
a California limited partnership
By: Spieker Properties, Inc.,
a Maryland corporation,
its general partner
By: /s/ Jeffrey K. Nickell
-------------------------
Name: Jeffrey K. Nickell
Title: Vice President
Date: 8/4/99
-----------------------
TENANT
Broadband Sports, Inc.
a Delaware corporation
By: /s/ Tyler Goldman
------------------------------
Its: President
--------------------------
By: /s/ Greg S. Hebner
------------------------------
Its: Chief Financial Officer
--------------------------
Date: 8/3/99
----------------------------
<PAGE>
EXHIBIT A
RULES AND REGULATIONS
1. Sidewalks, halls, passages, exits, entrances, elevators, escalators
and stairways shall not be obstructed by tenants or used by tenants for any
purpose other than for ingress to and egress from their respective premises. The
halls, passages, exits, entrances, elevators and stairways 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
reasonable judgment of Landlord, shall be prejudicial to the safety, character,
reputation and interests of the Building, the Project and its tenants, provided
that nothing herein contained shall be construed to prevent such access to
persons with whom any tenant normally deals in the ordinary course of such
tenant's business unless such persons are engaged in illegal activities. No
tenant, and no employees or invitees of any tenant, shall go upon the roof of
any Building, except as authorized by Landlord. No tenant, and no employees or
invitees of any tenant shall move any common area furniture without Landlord's
consent.
2. Except as otherwise set forth in this Lease, no sign,
placard, banner, picture, name, advertisement or notice, visible from the
exterior of the Premises or the Building or the common areas of the Building
shall be inscribed, painted, affixed, installed or otherwise displayed by Tenant
either on its Premises or any part of the Building or Project without the prior
written consent of Landlord in Landlord's sole and absolute discretion. Landlord
shall have the right to remove any such sign, placard, banner, picture, name,
advertisement, or notice without notice to and at the expense of the Tenant,
which were installed or displayed in violation of this rule. If Landlord shall
have given such consent to Tenant at anytime, whether before or after the
execution of Tenant's Lease, such consent shall in no way operate as a waiver or
release of any of the provisions hereof or of the Lease, and shall be deemed to
relate only to the particular sign, placard, banner, picture, name,
advertisement or notice so consented to by Landlord and shall not be construed
as dispensing with the necessity of obtaining the specific written consent of
Landlord with respect to any other such sign, placard, banner, picture, name,
advertisement or notice.
All approved signs or lettering on doors and walls shall be printed,
painted, affixed or inscribed at the expense of Tenant by a person or vendor
reasonably approved by Landlord and shall be removed by Tenant at the time of
vacancy at Tenant's expense.
3. The directory of the Building will be provided exclusively
for the display of the name and location of tenants only (and approved assignees
or subtenants) and Landlord reserves the right to charge a reasonable fee for
the installation thereof.
4. No curtains, draperies, blinds, shutters, shades, screens or
other coverings, awnings, hangings or decorations shall be attached to, hung or
placed in, or used in connection with, any window or door on the Premises
without the prior written reasonable consent of Landlord. In any event with the
prior written consent of Landlord, all such items shall be installed inboard of
Landlord's standard window covering and shall in no way be visible from the
exterior of the Building. All electrical ceiling fixtures hung in offices or
spaces along the perimeter of the Building must be fluorescent or of a quality,
type, design, and bulb color reasonably approved by Landlord. No articles shall
be placed or kept on the window sills so as to be visible from the exterior of
the Building. No articles shall be placed against glass partitions or doors
which Landlord considers unsightly from outside Tenant's Premises.
5. Landlord reserves the right to exclude from the Building and
the Project, between the hours of 6 p.m. and 7 a.m. and at all hours on
Saturdays, Sundays and legal holidays, all persons who are not tenants or their
guests in the Building. Each tenant shall be responsible for all persons for
whom it allows to enter the Building or the Project and shall be liable to
Landlord for all acts of such persons, except as otherwise provided in this
Lease.
<PAGE>
Landlord and its agents shall not be liable for damages for any error
concerning the admission to, or exclusion from, the Building or the Project of
any person, except to the extent resulting from Landlord's negligence or willful
misconduct.
During the continuance of any invasion, mob, riot, public excitement
or other circumstance rendering such action advisable in Landlord's opinion,
Landlord reserves the right (but shall not be obligated) to prevent access to
the Building and the Project during the continuance of that event by any means
it considers appropriate for the safety of tenants and protection of the
Building, property in the Building and the Project.
6. All cleaning and janitorial services for the Building and
the Premises shall be provided exclusively through Landlord. Except with the
written consent of Landlord, no person or persons other than those reasonably
approved by Landlord shall be permitted to enter the Building for the purpose of
cleaning the same. Tenant shall not cause any unnecessary labor by reason of
Tenant's carelessness or indifference in the preservation of good order and
cleanliness of its Premises. Landlord shall in no way be responsible to Tenant
for any loss of property on the Premises, however occurring, or for any damage
done to Tenant's property by the janitor or any other employee or any other
person, except to the extent resulting from Landlord's negligence or willful
misconduct.
7. Tenant shall use commercially reasonable efforts to see that
all doors of its Premises are closed and securely locked and to observe strict
care and caution that all water faucets or water apparatus, coffee pots or other
heat-generating devices are entirely shut off before Tenant or its employees
leave the Premises, and that all utilities shall likewise be carefully shut off,
so as to prevent waste or damage. Tenant shall be responsible for any damage or
injuries sustained by other tenants or occupants of the Building or Project or
by Landlord for noncompliance with this rule. On multiple-tenancy floors, all
tenants shall keep the door or doors to the Building corridors closed at all
times except for ingress and egress.
8. Except as provided in this Lease, Tenant shall not use any
method of heating or air-conditioning other than that supplied by Landlord. As
more specifically provided in the Tenant's lease of the Premises, Tenant shall
not waste electricity, water or air-conditioning and agrees to cooperate fully
with Landlord to assure the most effective operation of the Building's heating
and air-conditioning, and shall refrain from attempting to adjust any controls
other than room thermostats installed for Tenant's use.
9. Landlord will furnish Tenant free of charge with two keys to
each door in the Premises. Landlord may make a reasonable charge for any
additional keys, and Tenant shall not make or have made additional keys. Tenant
shall not alter any lock or access device or install a new or additional lock or
access device or bolt on any door of its Premises, without the prior written
consent of Landlord, which shall not be unreasonably withheld. If Landlord shall
give its consent, Tenant shall in each case furnish Landlord with a key for any
such lock (except for any secured areas which Landlord has approved). Tenant,
upon the termination of its tenancy, shall deliver to Landlord the keys for all
doors which have been furnished to Tenant, or which have otherwise been made for
Tenant, and in the event of loss of any keys so furnished or made, shall pay
Landlord therefor.
10. The restrooms, toilets, urinals, wash bowls and other
apparatus shall not be used for any purpose other than that for which they were
constructed and no foreign substance of any kind whatsoever shall be thrown into
them. The expense of any breakage, stoppage, or damage resulting from violation
of this rule shall be borne by the tenant who, or whose employees or invitees,
shall have caused the breakage, stoppage, or damage.
<PAGE>
11. Tenant shall not use or keep in or on the Premises, the
Building or the Project any kerosene, gasoline, or inflammable or combustible
fluid or material, except incidental to the Permitted Use and in compliance with
all Regulations and subject to Landlord's approval.
12. Tenant shall not use, keep or permit to be used or kept in
its Premises any foul or noxious gas or substance. Tenant shall not allow the
Premises to be occupied or used in a manner which unreasonably interferes with
Landlord or other occupants of the Building by reason of noise, odors and/or
vibrations or interfere in any way with other tenants or those having business
therein, nor shall any animals (other than guide dogs) or birds be brought or
kept in or about the Premises, the Building, or the Project.
13. No cooking shall be done or permitted by any tenant on the
Premises, except that use by the tenant of Underwriters' Laboratory (UL)
approved equipment, refrigerators and microwave ovens may be used in the
Premises for the preparation of coffee, tea, hot chocolate and similar
beverages, storing and heating food for tenants and their employees shall be
permitted. All uses must be in accordance with all applicable federal, state and
city laws, codes, ordinances, rules and regulations and the Lease.
14. Except with the prior written consent of Landlord, Tenant
shall not sell, or permit the sale, at retail, of newspapers, magazines,
periodicals, theater tickets or any other goods or merchandise in or on the
Premises, nor shall Tenant carry on, or permit or allow any employee or other
person to carry on, the business of stenography, typewriting or any similar
business in or from the Premises for the service or accommodation of occupants
of any other portion of the Building, nor shall the Premises be used for the
storage of merchandise or for manufacturing of any kind, or the business of a
public barber shop, beauty parlor, nor shall the Premises be used for any
illegal, improper or immoral purpose, or any business or activity other than
that specifically provided for in such Tenant's Lease. Tenant shall not accept
hairstyling, barbering, shoeshine, nail, massage or similar services in the
Premises or common areas except as authorized by Landlord.
15. If Tenant requires telegraphic, telephonic,
telecommunications, data processing, burglar alarm or similar services, it shall
first obtain, and comply with, Landlord's instructions in their installation,
except as otherwise provided in this Lease.
16. Landlord will direct electricians as to where and how
telephone, telegraph and electrical wires are to be introduced or installed. No
boring or cutting for wires will be allowed without the prior consent of
Landlord. The location of burglar alarms, telephones, call boxes and other
office equipment affixed to the Premises shall be subject to the written
approval of Landlord.
17. Except as otherwise set forth in this Lease, Tenant shall
not install any radio or television antenna, satellite dish, loudspeaker or any
other device on the exterior walls or the roof of the Building, without
Landlord's consent. Tenant shall not interfere with radio or television
broadcasting or reception from or in the Building, the Project or elsewhere.
18. Except in connection with the normal hanging of pictures or
other decorative items of art, Tenant shall not mark, or drive nails, screws or
drill into the partitions, woodwork or drywall or in any way deface the Premises
or any part thereof without Landlord's consent. Tenant may install nails and
screws in areas of the Premises that have been identified for those purposes to
Landlord by Tenant at the time those walls or partitions were installed in the
Premises. Tenant shall not lay linoleum, tile, carpet or any other floor
covering so that the same shall be affixed to the floor of its Premises in any
manner except as approved in writing by Landlord. The expense of repairing any
damage resulting from a violation of this rule or the removal of any floor
<PAGE>
covering shall be borne by the tenant by whom, or by whose contractors,
employees or invitees, the damage shall have been caused.
19. No bulk furniture, freight, equipment, materials, supplies,
packages, merchandise or other property will be received in the Building or
carried up or down the elevators except between such hours and in such elevators
as shall be designated by Landlord.
Tenant shall not place a load upon any floor of its Premises which
exceeds the load per square foot which such floor was designed to carry or which
is allowed by law. Landlord shall have the right to prescribe the weight, size
and position of all safes, furniture or other heavy equipment brought into the
Building. Safes or other heavy objects shall, if considered necessary by
Landlord, stand on wood strips of such thickness as determined by Landlord to be
necessary to properly distribute the weight thereof. Landlord will not be
responsible for loss of or damage to any such safe, equipment or property from
any cause, and all damage done to the Building by moving or maintaining any such
safe, equipment or other property shall be repaired at the expense of Tenant.
Business machines and mechanical equipment belonging to Tenant which
cause noise or vibration that may be transmitted to the structure of the
Building or to any space therein to such a degree as to be objectionable to
Landlord or to any tenants in the Building shall be placed and maintained by
Tenant, at Tenant's expense, on vibration eliminators or other devices
sufficient to eliminate noise or vibration. The persons employed to move such
equipment in or out of the Building must be reasonably acceptable to Landlord.
20. Intentionally Omitted.
21. There shall not be used in any space, or in the public
areas of the Project either by Tenant or others, any hand trucks except those
equipped with rubber tires and side guards or such other material handling
equipment as Landlord may approve. Tenants using hand trucks shall be required
to use the freight elevator, or such elevator as Landlord shall designate. No
other vehicles of any kind shall be brought by Tenant into or kept in or about
its Premises.
22. Each tenant shall store all its trash and garbage within
the interior of the Premises. Tenant shall not place in the trash boxes or
receptacles any personal trash or any material that may not or cannot be
disposed of in the ordinary and customary manner of removing and disposing of
trash and garbage in the city, without violation of any law or ordinance
governing such disposal. All trash, garbage and refuse disposal shall be made
only through entry-ways and elevators provided for such purposes and at such
times as Landlord shall designate. If the Building has implemented a building-
wide recycling program for tenants, Tenant shall use good faith efforts to
participate in said program.
23. Canvassing, soliciting, distribution of handbills or any
other written material and peddling in the Building and the Project are
prohibited and each tenant shall cooperate to prevent the same. No tenant shall
make room-to-room solicitation of business from other tenants in the Building or
the Project, without the written consent of Landlord.
24. Landlord shall have the right, exercisable without notice
and without liability to any tenant, to change the name and address of the
Building and the Project.
25. Landlord reserves the right to exclude or expel from the
Project any person who, in Landlord's reasonable judgment, is under the
influence of alcohol or drugs or who commits any act in violation of any of
these Rules and Regulations.
<PAGE>
26. Without the prior written consent of Landlord, Tenant shall
not use the name of the Building or the Project or any photograph or other
likeness of the Building or the Project in connection with, or in promoting or
advertising, Tenant's business except that Tenant may include the Building's or
Project's name in Tenant's address.
27. Tenant shall comply with all safety, fire protection and
evacuation procedures and regulations reasonably established by Landlord or any
governmental agency.
28. Except for Landlord's negligence or willful misconduct,
Tenant assumes any and all responsibility for protecting its Premises from
theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed.
29. The requirements of Tenant will be attended to only upon
appropriate application at the office of the Building by an authorized
individual. Employees of Landlord shall not perform any work or do anything
outside of their regular duties unless under special instructions from Landlord,
and no employees of Landlord will admit any person (tenant or otherwise) to any
office without specific instructions from Landlord.
30. Landlord reserves the right to designate the use of the
parking spaces on the Project. Tenant or Tenant's guests shall park between
designated parking lines only, and shall not occupy two parking spaces with one
car. Parking spaces shall be for passenger vehicles, sport utility vehicles and
pick-up trucks only; no boats, trucks, trailers, recreational vehicles or other
types of vehicles may be parked in the parking areas (except that trucks may be
loaded and unloaded in designated loading areas). Vehicles in violation of the
above shall be subject to tow-away, at vehicle owner's expense. Vehicles parked
on the Project overnight without prior written consent of the Landlord shall be
deemed abandoned and shall be subject to tow-away at vehicle owner's expense. No
tenant of the Building shall park in visitor or reserved parking areas. Any
tenant found parking in such designated visitor or reserved parking areas shall
be subject to tow-away at vehicle owner's expense. The parking areas shall not
be used to provide car wash, oil changes, detailing, automotive repair or other
services unless otherwise approved or furnished by Landlord.
31. No smoking of any kind shall be permitted anywhere within
the Building, including, without limitation, the Premises and those areas
immediately adjacent to the entrances and exits to the Building, or any other
area as Landlord elects. Smoking in the Project is only permitted in smoking
areas identified by Landlord, which may be relocated from time to time.
32. If the Building furnishes common area conferences rooms for
tenant usage, Landlord shall have the right to control each tenant's usage of
the conference rooms, including limiting tenant usage so that the rooms are
equally available to all tenants in the Building. Any common area amenities or
facilities shall be provided from time to time at Landlord's discretion.
33. Tenant shall not swap or exchange building keys or cardkeys
with other employees or tenants in the Building or the Project.
34. Tenant shall be responsible for the observance of all of
the foregoing Rules and Regulations by Tenant's employees, agents, clients,
customers, invitees and guests.
35. These Rules and Regulations are in addition to, and shall
not be construed to in any way modify, alter or amend, in whole or in part, the
terms, covenants, agreements and conditions of any lease of any premises in the
Project.
<PAGE>
36. Subject to the terms of this Lease, Landlord may waive any
one or more of these Rules and Regulations for the benefit of any particular
tenant or tenants, but no such waiver by Landlord shall be construed as a waiver
of such Rules and Regulations in favor of any other tenant or tenants, nor
prevent Landlord from thereafter enforcing any such Rules and Regulations
against any or all tenants of the Building.
37. Landlord reserves the right to make such other and
reasonable rules and regulations as in its judgment may from time to time be
needed for safety and security, for care and cleanliness of the Building and the
Project and for the preservation of good order therein. Tenant agrees to abide
by all such Rules and Regulations herein stated and any additional rules and
regulations which are adopted.
<PAGE>
EXHIBIT B
---------
[Site Plan.]
<PAGE>
EXHIBIT C
---------
LEASE IMPROVEMENT AGREEMENT
---------------------------
This Lease Improvement Agreement ("Improvement Agreement") sets forth the
terms and conditions relating to construction of the initial tenant improvements
described in the Plans to be prepared and approved as provided below (the
"TENANT IMPROVEMENTS") in the Premises. Capitalized terms used but not otherwise
defined herein shall have the meanings set forth in the Lease (the "Lease") to
which this Improvement Agreement is attached and incorporated into.
1. Base Building Work. The "Base Building Work" described on
Schedule 1 to this Exhibit C will be substantially completed before the Term
Commencement Date by Landlord at Landlord's sole cost and expense (except for
the First Floor Multi-Tenant Corridor Work, defined below in Schedule "1"
attached hereto) and in accordance with all applicable codes and laws.
2. Plans and Specifications.
2.1 Tenant shall retain the services of a space planner (the
"Space Planner") mutually approved by Landlord and Tenant to prepare a detailed
space plan (the "Space Plan") mutually satisfactory to Landlord and Tenant for
the construction of the Tenant Improvements in the Premises. Tenant shall submit
the Space Plan and any proposed revisions thereto to Landlord for Landlord's
approval, which shall not be unreasonably withheld or delayed. In this regard,
Landlord agrees to use its commercially reasonable efforts to notify Tenant of
such approval or disapproval within 5 business days following Landlord's receipt
of Tenant's request therefor (together with the submittal to Landlord of all
documentation or information required by Landlord in connection with said
review).
2.2 Based on the approved Space Plan, Tenant shall cause the
Space Planner to prepare detailed plans, specifications and working drawings
reasonably satisfactory to Landlord for the construction of the Tenant
Improvements (the "Plans"). Landlord and Tenant shall diligently pursue the
preparation of the Plans. Tenant shall submit to Landlord for Landlord's
reasonable approval the Plans and any proposed revisions thereto, including the
estimated cost of the Tenant Improvements. All necessary revisions to the Space
Plan and the Plans shall be made within two (2) business days after Landlord's
response thereto. This procedure shall be repeated until Landlord ultimately
approves the Space Plan and Plans.
2.3 Tenant shall be responsible for ensuring that the Plans are
compatible with the design, construction and equipment of the Building, comply
with applicable Regulations and the Standards (defined below), and contain all
such information as may be required to show locations, types and requirements
for all heat loads, people loads, floor loads, power and plumbing, regular and
special HVAC needs, telephone communications, telephone and electrical outlets,
lighting, light fixtures and related power, and electrical and telephone
switches, B.T.U. calculations, electrical requirements and special receptacle
requirements. The Plans shall also include mechanical, electrical, plumbing,
structural and engineering drawings mutually satisfactory to Landlord and Tenant
which shall be prepared by an engineer approved by Landlord (in its good faith
discretion). Notwithstanding Landlord's review and approval of the Space Plan
and the Plans and any revisions thereto, Landlord shall have no responsibility
or liability whatsoever for any errors or omissions contained in the Space Plan
or Plans or any revisions thereto, or to verify dimensions or conditions, or for
the quality, design or compliance with applicable Regulations of any
improvements described therein or constructed in accordance therewith. Tenant
hereby waives all claims against Landlord relating to, or arising out of the
design or construction of, the Tenant Improvements.
2.4 Landlord's criteria for approvals shall be based on
reasonable criteria established from time to time by Landlord, but Landlord will
be deemed to have
<PAGE>
acted reasonably if Landlord's disapproval is predicated upon (i) effect on the
structural integrity of the Building, (ii) possible damage to the Building's
mechanical, electrical, plumbing and HVAC systems, (iii) non-compliance with
applicable laws, codes and regulations, (iv) incompatibility with the base
building plans, (v) failure to use materials required by Schedule 2 pertaining
to Standards, and (vi) effect on the exterior of the Building or any of the
Building's common areas. Landlord shall approve or disapprove, in writing, any
Space Plan, Plans or proposed revisions thereto submitted to Landlord for
Landlord's approval within three (3) business days after Landlord's receipt
thereof. If Landlord has not approved in writing any Space Plan, Plans, or
proposed revisions thereto submitted to Landlord within ten (10) business days
after Landlord's receipt thereof (together with any additional items reasonably
requested by Landlord in connection with its review of the same), Landlord shall
be deemed to have approved the same. Any disapproval by Landlord shall be in
writing and shall set forth (i) the reasons for the disapproval, (ii) suggested
modifications which will make the Space Plan or Plans acceptable, and (iii) a
specific description of the disapproved portion of the Space Plan or Plans.
3. Specifications for Standard Tenant Improvements.
3.1 Specifications and quantities of standard building
components which will comprise and be used in the construction of the Tenant
Improvements ("Standards") are set forth in Schedule 2 to this Exhibit C. As
used herein, "Standards" or "Building Standards" shall mean the standards for a
particular item selected from time to time by Landlord for the Building, in
accordance with Schedule 2 of this Exhibit C, or such other standards of equal
or better quality as may be mutually agreed between Landlord and Tenant in
writing.
3.2 No deviations from the Standards are permitted.
4. Tenant Improvement Cost.
4.1 The cost of the Tenant Improvements and 50.35% of the First
Floor Multi-Tenant Corridor Work shall be paid for by Tenant, including, without
limitation, the cost of: Standards; space plans and studies; architectural and
engineering fees; permits, approvals and other governmental fees; labor,
material, equipment and supplies; construction fees and other amounts payable to
contractors or subcontractors; taxes; off-site improvements; remediation and
preparation of the Premises for construction of the Tenant Improvements; taxes;
filing and recording fees; premiums for insurance and bonds; code compliance and
related expenses triggered as a result of the construction of the Tenant
Improvements (except to the extent included as part of Landlord's Base Building
Work); attorneys' fees; financing costs; a supervision fee to Landlord equal to
3% of the total cost of the Tenant Improvements; and all other costs expended or
to be expended in the construction of the Tenant Improvements, including those
costs incurred for construction of elements of the Tenant Improvements in the
Premises, which construction was performed by Landlord prior to the execution of
the Lease or for materials comprising the Tenant Improvements which were
purchased by Landlord prior to the execution of the Lease, provided that
Landlord has delivered to Tenant an explanation of such costs incurred by
Landlord for construction or materials and Tenant approved these costs before
the execution of this Lease (the "Tenant Improvement Costs"). Notwithstanding
the foregoing, the portion of the Tenant Improvement Costs attributable to (i)
space plans shall not exceed $3,792.60 ($.15 per usable square foot), and (ii)
space plans, architectural and engineering fees and voice and data cabling
installation costs shall not exceed $139,062 ($5.50 per usable square fee).
4.2 Provided Tenant is not in default under the Lease,
including this Improvement Agreement, Landlord shall contribute a one-time
tenant improvement allowance of $1,033,914.00 ($42.00 per usable square foot)
("Tenant Improvement Allowance") toward the cost of the initial Tenant
Improvements. Provided Tenant is not then in default under the Lease, including
this Improvement Agreement, the Tenant
<PAGE>
Improvement Allowance shall be disbursed by Landlord in accordance with Section
4.2.1 below.
4.2.1 Disbursement of Tenant Improvement Allowance. During
the construction of the Tenant Improvements, Landlord shall make disbursements
of the Tenant Improvement Allowance for Tenant Improvement Allowance Items for
the benefit of Tenant and shall authorize the release of monies for the benefit
of Tenant as follows:
4.2.1.1 Disbursements. Upon the completion of portions
of the Tenant Improvements, Tenant shall deliver to Landlord: (i) a request for
payment of the "Tenant Improvement Allowance," as that term is defined in this
Improvement Agreement, approved by Tenant, showing the schedule, by trade, of
percentage of completion of the Tenant Improvements in the Premises, detailing
the portion of the work completed; (ii) invoices from the Contractor, all
subcontractors performing work, and all materialmen and suppliers (collectively,
"Tenant's Agents") for labor rendered and materials delivered to the Premises;
(iii) executed mechanic's lien releases from all of Tenant's Agents which shall
comply with the appropriate provisions, as reasonably determined by Landlord, of
California Civil Code Section 3262(d); and (iv) all other information reasonably
requested by Landlord. On or before the last day of the month following
Landlord's receipt of the items set forth above, Landlord shall deliver a check
to Tenant made payable to Tenant in payment of the lesser of: (A) the amounts so
requested by Tenant, as set forth in this Section 4.2.1.1, above, less a ten
percent (10%) retention (the aggregate amount of such retentions to be known as
the "Final Retention"), and (B) the balance of any remaining available portion
of the Tenant Improvement Allowance (not including the Final Retention),
provided that Landlord does not dispute any request for payment based on a non-
compliance of any work with the approved Plans, or due to any substandard work.
Landlord's payment of such amounts shall not be deemed Landlord's approval or
acceptance of the work furnished or materials supplied as set forth in Tenant's
payment request.
4.2.1.2 Final Retention. Subject to the provisions of this
Improvement Agreement, a check for the Final Retention payable to Tenant shall
be delivered by Landlord to Tenant following the completion of construction of
the Premises, provided that (i) Tenant delivers to Landlord a waiver and release
in accordance with the terms of California Civil Code Section 3262(d)(2) and a
waiver and release in accordance with either California Civil Code Section
3262(d)(3) or Section 3262(d)(4), (ii) Landlord has reasonably determined that
no substandard work exists which adversely affects the mechanical, electrical,
plumbing, heating, ventilating and air conditioning, life-safety or other
systems of the Building, the structure or exterior appearance of the Building,
the curtain wall of the Building, the structure or exterior appearance of the
Building, or any other tenant's use of such other tenant's leased premises in
the Building and (iii) Landlord's architect and Tenant's Space Planner deliver
to Landlord a certificate, in a form reasonably acceptable to Landlord,
certifying that the construction of the Tenant Improvements in the Premises has
been substantially completed.
4.3 In the event the estimated cost of the design and
construction of the Tenant Improvements exceeds the Tenant Improvement
Allowance, Tenant shall be responsible for said excess costs. No credit shall be
given to Tenant if the cost of the Tenant Improvements is less than the Tenant
Improvement Allowance.
4.4 If the cost of the Tenant Improvements increases after the
Tenant's approval of the Plans due to the requirements of any governmental
agency or applicable Regulation or for any other reason (and either the cost of
the Tenant Improvements exceeds or such increase causes the cost of the Tenant
Improvements to exceed the Tenant Improvement Allowance), Tenant shall be
responsible for paying such increase.
<PAGE>
4.5 If Tenant requests any change(s) in the Plans after
approval of the estimate of the cost of the Tenant Improvements and any such
requested changes are approved by Landlord in writing in Landlord's reasonable
discretion (and either the cost of the Tenant Improvements exceeds or such
change(s) causes the cost of the Tenant Improvements to exceed the Tenant
Improvement Allowance), Tenant shall pay for the cost of any increases such
approved change(s) will cause in the construction of the Tenant Improvements.
5. Construction of Tenant Improvements.
5.1 Within ten (10) days after Tenant's and Landlord's approval
of the Plans including the estimate of the cost of the Tenant Improvements,
Tenant shall cause the contractor to proceed to secure a building permit and
commence construction of the Tenant Improvements.
5.2 Tenant shall be responsible for obtaining all governmental
approvals to the full extent necessary for the construction and installation of
the Tenant Improvements and for Tenant's occupancy of the Premises, in
compliance with all applicable Regulations. Tenant shall employ such Contractor
or contractors (hereinafter, the "Contractor") as shall be approved by Landlord
in writing to construct the Tenant Improvements in conformance with the approved
Space Plan and Plans. Landlord's approval of the Contractor shall not be
unreasonably withheld or conditioned, and shall be granted or denied within
seven (7) business days after Tenant has submitted the name of the Contractor,
together with all supporting documentation and information requested by Landlord
in connection with Landlord's review of said Contractor. The construction
contracts between Tenant and the approved Contractor shall be subject to
Landlord's prior reasonable approval and shall provide for progress payments.
The Contractor(s) shall be duly licensed and Landlord's approval of the
Contractor(s) shall be conditioned, among other things, upon the Contractor's
reputation for quality of work, timeliness of performance, integrity and
Landlord's prior experience with such Contractor. Notwithstanding the foregoing,
Tenant agrees to use ACCO as the subcontractor to perform all HVAC related work
as long as the sums to be paid to ACCO under its subcontract are reasonably
competitive with other reputable, licensed HVAC subcontractors.
5.3 Without limiting the provisions of Paragraph 35 of the
Lease, and subject to Paragraph 7.1 below, Landlord shall not be liable for any
direct or indirect damages suffered by Tenant as a result of delays in
construction beyond Landlord's reasonable control, including, but not limited
to, delays due to strikes or unavailability of materials or labor, or delays
caused by Tenant (including delays by the Space Planner, the contractor or
anyone else performing services on behalf of Landlord or Tenant), but Landlord
will be liable for any out-of-pocket actual damages (but not consequential
damages, loss of use, loss of business opportunity or lost profits) incurred by
Landlord as a direct result of any such delays.
5.4 All work to be performed on the Premises by Tenant or
Tenant's contractor or agents shall be subject to the following conditions:
(a) Such work shall proceed upon Landlord's written
approval of the Contractor, and public liability and property damage insurance
carried by the Contractor, and shall further be subject to the provisions of
Paragraphs 12 (with respect to the requirements and conditions governing the
performance of such work) and 27 of the Lease.
(b) All work shall be done in conformity with a valid
building permit when required, a copy of which shall be furnished to Landlord
before such work is commenced, and in any case, all such work shall be performed
in a good and workmanlike and first-class manner, and in accordance with all
applicable Regulations and the requirements and standards of any insurance
underwriting board, inspection bureau or insurance carrier insuring the Premises
pursuant to the Lease. Notwithstanding any failure by Landlord to object to any
such work, Landlord shall
<PAGE>
have no responsibility for Tenant's failure to comply with all applicable
Regulations. Tenant shall be responsible for ensuring that construction and
installation of the Tenant Improvements will not affect the structural integrity
of the Building.
(c) If required by Landlord or any lender of Landlord, all
work by Tenant or the Contractor shall be done with union labor in accordance
with all union labor agreements applicable to the trades being employed.
(d) Landlord or Landlord's agents shall have the right to
inspect the construction of the Tenant Improvements by Tenant during the
progress thereof. If Landlord shall give notice of faulty construction or any
other deviation from the approved Space Plan or Plans, Tenant shall inform the
Contractor of such deviation and require the Contractor to make corrections
promptly. However, neither the privilege herein granted to Landlord to make such
inspections, nor the making of such inspections by Landlord, shall operate as a
waiver of any right of Landlord to require good and workmanlike construction and
improvements erected in accordance with the approved Space Plan or Plans.
(e) Tenant shall use commercially reasonable efforts to
cause the Contractor to complete the Tenant Improvements as soon as reasonably
possible and before the Scheduled Term Commencement Date.
(f) Unless otherwise agreed in writing by Landlord and
Tenant, Tenant's construction of the Tenant Improvements shall comply with the
following: (i) the Tenant Improvements shall be constructed in strict accordance
with the approved Space Plan or Plans, as amended; (ii) Tenant and its
Contractor shall submit schedules of all work relating to the Tenant
Improvements to Landlord for Landlord's approval within two (2) business days
following the selection of the Contractor and the approval of the Plans.
Landlord shall within five (5) business days after receipt thereof inform Tenant
of any changes which are necessary and upon Tenant's approval of such changes
(which shall not be unreasonably withheld or delayed), Tenant's contractor shall
adhere to such revised schedule; and (iii) Tenant shall abide by all reasonable
rules made by Landlord with respect to the use of freight, loading dock, and
service elevators, storage of materials, coordination of work with the
contractors of other tenants, and any other matter in connection with this
Improvement Agreement, including, without limitation, the construction of the
Tenant Improvements.
(g) Tenant or the Contractor or agents shall arrange for
necessary utility, hoisting and elevator service with Landlord's contractor and
shall pay such reasonable charges for such services as may be charged by
Tenant's or Landlord's contractor.
(h) Tenant's entry to the Premises for any purpose,
including, without limitation, inspection or performance of Tenant construction
by Tenant's agents, prior to the date Tenant's obligation to pay rent commences
shall be subject to all the terms and conditions of the Lease except the payment
of Rent. Tenant's entry shall mean entry by Tenant, its officers, contractors,
licensees, agents, servants, employees, guests, invitees, or visitors.
(i) Tenant shall promptly reimburse Landlord upon demand
for any reasonable expense actually incurred by the Landlord by reason of faulty
work done by Tenant or its contractors or by reason of any delays caused by such
work, or by reason of inadequate clean-up.
(j) The Contractor and the subcontractors utilized by the
Contractor shall guarantee to Tenant and for the benefit of Landlord that the
portion of the Tenant Improvements for which it is responsible shall be free
from any defects in workmanship and materials for a period of not less than one
(1) year from the date of completion thereof. The Contractor and the
subcontractors utilized by the Contractor shall be responsible for the
replacement or repair, without additional charge, of all work done or furnished
in accordance with its contract that shall become defective
<PAGE>
within one (1) year after the later to occur of (i) completion of the work
performed by such contractor or subcontractors and (ii) the Term Commencement
Date. The correction of such work shall include, without additional charge, all
additional expenses and damages incurred in connection with such removal or
replacement of all or any part of the Tenant Improvements, and/or the Building
and/or common areas that may be damaged or disturbed thereby. All such
warranties or guarantees as to materials or workmanship of or with respect to
the Tenant Improvements shall be contained in the construction contract or
subcontract and shall be written such that such guarantees or warranties shall
inure to the benefit of both Landlord and Tenant, as their respective interests
may appear, and can be directly enforced by either. Tenant covenants to give to
Landlord any assignment or other assurances which may be necessary to effect
such rights of direct enforcement.
(k) Commencing upon the execution of the Lease, Tenant
shall hold weekly meetings at a reasonable time with the Space Planner and the
Contractor regarding the progress of the preparation of the Plans and the
construction of the Tenant Improvements, which meetings shall be held at a
location designated by Tenant, and Landlord and/or its agents shall receive
prior notice of, and shall use their best efforts to attend, all such meetings,
and upon Landlord's request, certain of Tenant's contractors shall attend such
meetings. One such meeting each month shall include the review of contractor's
current request for payment.
6. Insurance Requirements.
6.1 All of Tenant's contractors shall carry worker's
compensation insurance covering all of their respective employees, and shall
also carry public liability insurance, including property damage, all with
limits, in form and with companies as are required to be carried by Tenant as
set forth in Paragraph 8 of the Lease.
6.2 Tenant shall carry "Builder's All Risk" insurance in an
amount approved by Landlord covering the construction of the Tenant
Improvements, and such other insurance as Landlord may require, it being
understood and agreed that the Tenant Improvements shall be insured by Tenant
pursuant to Paragraph 8 of the Lease immediately upon completion thereof. Such
insurance shall be in amounts and shall include such extended coverage
endorsements as may be reasonably required by Landlord including, but not
limited to, the requirement that all of Tenant's contractors shall carry excess
liability and Products and Completed Operation coverage insurance, each in
amounts not less than $500,000 per incident, $1,000,000 in aggregate, and in
form and with companies as are required to be carried by Tenant as set forth in
Paragraph 8 of the Lease.
6.3 Certificates for all insurance carried pursuant to this
Improvement Agreement must comply with the requirements of Paragraph 8 of the
Lease and shall be delivered to Landlord before the commencement of construction
of the Tenant Improvements and before the Contractor's equipment is moved onto
the site. In the event the Tenant Improvements are damaged by any cause during
the course of the construction thereof, Tenant shall immediately repair the same
at Tenant's sole cost and expense. Tenant's contractors shall maintain all of
the foregoing insurance coverage in force until the Tenant Improvements are
fully completed and accepted by Landlord. All policies carried under this
Paragraph 6 shall insure Landlord and Tenant, as their interests may appear, as
well as the contractors. All insurance maintained by Tenant's contractors shall
preclude subrogation claims by the insurer against anyone insured thereunder.
Such insurance shall provide that it is primary insurance as respects the owner
and that any other insurance maintained by owner is excess and noncontributing
with the insurance required hereunder. If Landlord has a reasonable basis for
concern regarding Tenant's ability to pay for its share of the cost of the
Tenant Improvements or Tenant's actual payment of its share of said costs,
Landlord may require Tenant to obtain a lien and completion bond or some
alternate form of security satisfactory to Landlord in an amount sufficient to
ensure the lien-free completion of the Tenant Improvements and naming Landlord
as a co-obligee.
<PAGE>
7. Completion and Rental Commencement Date.
7.1 Tenant's obligation to pay Rent under the Lease shall
commence on the Term Commencement Date, notwithstanding anything to the contrary
contained in Paragraph 2 of the Lease. However, Landlord Delays (as defined
below) and delays caused by Force Majeure events (as described in Section 35 of
the Lease) (not to exceed 60 days, except to the extent Landlord receives rental
income insurance proceeds with respect to the Premises resulting from said Force
Majeure event) shall extend the Term Commencement Date, but only in the event
that substantial completion of the Tenant Improvements is delayed despite
Tenant's diligent and reasonable efforts to adapt and compensate for such
delays. In addition, no Landlord Delays shall be deemed to have occurred unless
Tenant has provided notice, in compliance with the Lease, to Landlord specifying
that a delay shall be deemed to have occurred because of actions, inactions or
circumstances specified in the notice in reasonable detail. If such actions,
inactions or circumstances are not cured by Landlord within one (1) business day
after receipt of such notice (the date of such receipt being the "Count Date"),
and if such actions, inaction or circumstances otherwise qualify as a Landlord
Delay, then a Landlord Delay shall be deemed to have occurred commencing as of
the Count Date. The Term Commencement Date shall be extended by one day for each
day from the Count Date that a Landlord Delay has occurred, as calculated as
provided above. The term "Landlord Delays," as such term may be used in this
Improvement Agreement, shall mean any delays in the completion of the Tenant
Improvements which are due to any act or omission of Landlord, its agents or
contractors. Landlord Delays shall include, but shall not be limited to: (i)
delays in the giving of authorizations or approvals by Landlord, (ii) delays due
to the acts or failures to act, of Landlord, its agents or contractors, where
such acts or failures to act delay the completion of the Tenant Improvements,
provided that Tenant acts in a commercially reasonable manner to mitigate any
such delay, (iii) delays due to the interference of Landlord, its agents or
contractors with the completion of the Tenant Improvements or the failure or
refusal of any party to permit Tenant, its agents and contractors, access to and
use of the Building or any Building facilities or services, including elevators
and loading docks, which access and use are necessary to complete the Tenant
Improvements, (iv) delays due to Landlord's failure to allow Tenant sufficient
access to the Building and/or the Premises during Tenant's move into the
Premises, and (v) delays in the completion of the Base Building Work.
7.2 Within ten (10) days after completion of construction of
the Tenant Improvements, Tenant shall cause a Notice of Completion to be
recorded in the office of the Recorder of the county in which the Building is
located in accordance with Section 3093 of the Civil Code of the State of
California or any successor statute, and shall furnish a copy thereof to
Landlord upon such recordation. If Tenant fails to do so, Landlord may execute
and file the same on behalf of Tenant as Tenant's agent for such purpose, at
Tenant's sole cost and expense. At the conclusion of construction, (i) Tenant
shall cause the Space Planner and the contractor (i) to update the approved
working drawings as necessary to reflect all changes made to the approved
working drawings during the course of construction, (ii) to certify to the best
of their knowledge that the "record-set" of as-built drawings are true and
correct, which certification shall survive the expiration or termination of the
Lease, and (c) to deliver to Landlord two (2) sets of copies of such record set
of drawings within ninety (90) days following issuance of a certificate of
occupancy for the Premises, and (iii) Tenant shall deliver to Landlord a copy of
all warranties, guarantees, and operating manuals and information relating to
the improvements, equipment, and systems in the Premises.
7.3 A default under this Improvement Agreement shall constitute
a default under the Lease, and the parties shall be entitled to all rights and
remedies under the Lease in the event of a default hereunder by the other party
(notwithstanding that the Term thereof has not commenced).
7.4 Without limiting the "as-is" provisions of the Lease,
except for the Tenant Improvements, if any, and Base Building Work to be
constructed by Landlord pursuant to this Improvement Agreement, Tenant accepts
the Premises in its
<PAGE>
"as-is" condition and acknowledges that it has had an opportunity to inspect the
Premises prior to signing the Lease.
8. Miscellaneous.
8.1 Prior to Tenant's move into the Premises, Landlord shall
thoroughly clean same. The costs of the cleaning provided by Landlord hereunder
shall not be deducted from the Tenant Improvement Allowance, but rather shall be
paid by Landlord and included as an Operating Expense.
<PAGE>
SCHEDULE 1
TO EXHIBIT C
BASE BUILDING WORK
------------------
The following improvements are to be completed or paid for by Landlord in
accordance with certain Base Building Plans (which are referenced in the
attached Index) which have been previously delivered to Tenant for its review:
(a) Restrooms, elevator lobbies (including elevator
doors), hallways required by code and, additionally, other areas not part
of Premises on each floor, and are to be completed in accordance with
Building Standards.
(b) Landlord, at Landlord's expense, shall provide the
Base Building security system.
(c) Landlord shall furnish and install all adequate
Building Standard utilities within the core and stubbed out of the face of
the core wall, on each floor. In addition, Landlord is to provide at least
one (1) "wet" column (with discharge lines) within each floor.
(d) Landlord will obtain all Base Building permits.
(e) Landlord will provide all engineering services which
shall include, but not be limited to, the cost of all electrical,
mechanical and structural engineering, including all permits, licenses and
fees relative to the development of the Base Building.
(f) The floors shall be delivered to Tenant smooth and
level within a tolerance of 1/4" per 10 linear feet, non-cumulative and
ready to receive floor coverings.
(g) Landlord shall deliver all floors in the Building to
withstand 80 pounds of pressure per square foot, live load with 20 pounds
of pressure per square foot for partitions.
(h) Landlord shall provide Tenant with a standard Variable
Air Volume heating, venting and air-conditioning ("HVAC") system with
rooftop package units. Landlord shall provide the Base Building HVAC System
to the core.
(i) Landlord shall install the sprinkler risers and
connections to the core and head distribution of each floor per code.
(j) Landlord shall provide to the Building adequate
capacity for Tenant's telephone lines and computer networking, including
but not limited to ISDN lines. It shall be Tenant's cost to bring the
telephone lines from the Building's point of entry to the Premises (which
cost shall not be applied against any unused Tenant Improvement Allowance).
(k) Landlord shall provide cable television ready access
to the Building.
(l) Landlord shall provide a credit for exterior perimeter
dry-walls based upon Swinerton & Walberg's cost to install the same. This
shall not include mud, tape, sending or other preparatory work.
(m) Landlord shall complete Building restrooms with
Standard Building finishes.
(n) Landlord shall pay for the relocation of the ground
floor exit corridor pursuant to mutually acceptable plans and
specifications.
<PAGE>
(o) Landlord shall construct a multi-tenant common
corridor on that side of the first floor of the Building which contains the
First Floor Premises (hereinafter, the "First Floor Multi-Tenant Corridor
Work").
(p) Digital fiber optic technology for voice data
transport and video servicing.
<PAGE>
SCHEDULE 2
TO EXHIBIT C
BUILDING STANDARDS
------------------
The following constitutes the Building Standard tenant improvements
("Standards") in the quantities specified:
<PAGE>
EXHIBIT D
JANITORIAL SPECIFICATIONS
<PAGE>
EXHIBIT E
LOCATION OF PARKING PERMITS
(See attached)
<PAGE>
EXHIBIT F
LETTER OF CREDIT
(See attached)
<PAGE>
ADDENDUM TO
LEASE AGREEMENT
RE: Lease of Premises at
2120 Colorado Avenue
Santa Monica, California
(the "Premises")
NOTWITHSTANDING anything to the contrary contained in the Lease Agreement
(the "Lease"), between Spieker Properties, L.P., a California limited
partnership ("Lessor"), and Broadband Sports, a Delaware corporation ("Tenant"),
the following provisions of this Addendum to Lease Agreement (this "Addendum")
shall be incorporated into and be a part of the Lease and shall supersede any
inconsistent provisions of the Lease.
1. Grant of License. Landlord hereby grants Tenant, at a charge
equal to $750.00 per month (to be paid to Landlord on the first day of each
month concurrently with Tenant's payment to Landlord of Base Rent), a
nonexclusive license to install on the roof of the Building ONE (1) satellite
dish which is no more than three (3) feet in diameter which shall be enclosed by
a screen and the nonexclusive right to run connecting lines to such satellite
from the Premises (such satellite dish and such connecting lines and equipment
herein referred to as the "Equipment"). Tenant shall not penetrate the roof in
connection with any installation or reinstallation of the Equipment without
Landlord's prior written consent, which consent shall not be unreasonably
withheld or delayed. The plans and specifications for all the Equipment shall be
approved by Landlord in writing prior to any installation. Tenant shall be
responsible for any damage to the roof or conduit system as a result of Tenant's
installation, maintenance and/or removal of the Equipment.
2. Location. The location of the satellite dish and the rest
of the Equipment shall be subject to Landlord's prior written approval, which
approval shall not be unreasonably withheld or delayed. Tenant shall not change
the location of, or alter or install additional Equipment or paint the satellite
dish or the other Equipment without Landlord's prior written reasonable consent.
Tenant agrees that Landlord shall direct the placement of the satellite dish
inside the roof well (in a location which provides Tenant with good reception),
other than locations that are scheduled to accommodate building equipment or
services.
3. Compliance with Law. Tenant, at Tenant's sole expense, shall
comply with all laws, rules, orders and regulations regarding the installation,
construction, operation, maintenance and removal of the Equipment and shall be
solely responsible for obtaining and maintaining in force all permits, licenses
and approvals necessary for such operations.
4. Taxes. Tenant shall be responsible for and promptly shall
pay all taxes, assessments, charges, fees and other governmental impositions
levied or assessed on the Equipment or based on the operation thereof.
5. Relocation. Landlord may require Tenant, at Tenant's sole
cost and expense, to relocate the Equipment during the term of the Lease to a
location approved by Tenant, which approval shall not be unreasonably withheld,
conditioned or delayed.
6. Termination. Upon any termination of the Lease, Landlord
reserves the right to terminate Tenant's right pursuant to this Addendum
immediately.
7. Interference. Operation of the Equipment shall not
unreasonably interfere in any manner with equipment systems or utility systems
of other tenants, including without limitation, telephones, dictation equipment,
lighting, heat and air conditioning, computers, electrical systems and
elevators. If operation of the
<PAGE>
Equipment causes such unreasonable interference, Tenant immediately shall
suspend operation of the Equipment until such unreasonable interference is
eliminated.
8. Maintenance and Repair. Tenant shall maintain the Equipment
in good condition and repair, at Tenant's sole cost and expense. Landlord may
from time to time require that Tenant repaint the satellite dish at Tenant's
expense to keep the same in an attractive condition. In the event that Tenant
fails to repair and maintain the Equipment in accordance with this paragraph 8,
Landlord may, but shall not be obligated to, make any such repairs or perform
any maintenance to the Equipment after 30 days notice to Tenant and Tenant shall
reimburse Landlord upon demand for all out-of-pocket costs and expenses incurred
by Landlord in connection therewith.
9. Access. Tenant may access the roof for repair and
maintenance of each satellite dish, only during normal business hours, on not
less than 24 hours prior written notice to Landlord unless otherwise approved by
Landlord. Tenant shall designate in writing to Landlord all persons whom Tenant
authorizes to have access to the roof for such purposes. Upon such designation
and prior identification to Landlords' building security personnel, such
authorized persons shall be granted access to the roof by Landlord's building
engineer. Tenant shall be responsible for all costs and expenses incurred by
Landlord in connection with Tenant's access to the roof pursuant to this
Paragraph 9.
10. Indemnity and Insurance. Tenant shall indemnify, defend,
protect and hold harmless Landlord from and against any and all claims related
to the Equipment or operation of the same as if the Equipment were located
wholly within the Premises. Tenant shall provide evidence satisfactory to
Landlord that Tenant's property and liability insurance policies required under
the Lease include coverage for the Equipment and any claim, loss, damage, or
liability relating to the Equipment.
11. No Landlord Responsibility. Landlord shall have no
responsibility or liability whatsoever relating to (i) maintenance or repair of
the Equipment, (ii) damage to the Equipment; (iii) damage to persons or property
relating to the Equipment or the operation thereof, or (iv) interference with
use of the Equipment arising out of utility interruption or any other cause,
except for injury to persons or damage to property caused by the negligence or
intentional misconduct of Landlord or its agents. In no event shall Landlord be
responsible for consequential damages. Upon installation of the Equipment,
Tenant shall accept the area where the Equipment is located in its "as is"
condition. Tenant acknowledges that Landlord shall have no obligation whatsoever
to improve, maintain or repair the area in which the Equipment will be
installed.
12. Use. Tenant shall use the Equipment solely for the
operations within the Premises and shall not use or allow use of the Equipment,
for consideration or otherwise, for the benefit of other tenants in the Project
or any other person or entity.
13. Removal. Tenant shall, at Tenant's sole expense, remove the
satellite dish and such other portions of the Equipment as Landlord may
designate, and restore the affected areas to their condition prior to
installation of the Equipment (i) if Tenant fails to perform any of its
obligations under this Addendum within fifteen (15) days after request of
Landlord, or immediately in the event of emergency, (ii) immediately if such
removal is required by any governmental agency having jurisdiction over the
Equipment, and (iii) in any event, no later than fifteen (15) days after
expiration or earlier termination of the Lease. If Tenant fails to remove the
Equipment when and as required under this Addendum, Landlord reserves the right
to do so, and the expense of the same shall be immediately due and payable from
Tenant to Landlord as additional rent, together with interest and late charges
as provided in the Lease.
14. Survival. The covenants, obligations and indemnities under
this Addendum shall survive expiration or earlier terminatin of the Lease for
any reason.
Except as expressly modified above, all terms and conditions of the Lease
remain in full force and effect and are hereby ratified and confirmed.
LANDLORD TENANT:
Spieker Properties, L.P., a California limited Broadband Sports, a Delaware corporation
partnership
By: Spieker Properties, Inc., a Maryland By: /s/ Tyler Goldman
------------------------------
corporation Name: Tyler Goldman
-------------------------
Its General Partner Its: President
--------------------------
Date: 8/3/99
---------------------------
By: /s/ Jeffrey K. Nickell By: /s/ Gregory S. Hebner
---------------------------------- -----------------------------
Name: Jeffrey K. Nickell Name: Gregory S. Hebner
---------------------------- -------------------------
Its: Vice President Its: Chief Financial Officer
----------------------------- --------------------------
Date: 8/4/99 Date: 8/3/99
-------------------------------- ----------------------------