California-Santa Monica-3000 Ocean Park Boulevard Sublease - Century Southwest Cable Television Inc. and CyberMedia Corp.
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SUBLEASE AGREEMENT
This SUBLEASE AGREEMENT ("Sublease") is made and entered into on this
____ day of December, 1995 by and between Century Southwest Cable Television,
Inc. ("Sublandlord" or "Tenant") and CyberMedia Corporation ("Subtenant").
WHEREAS, Barclay Curci Investment Company, a California general
partnership, as landlord ("Landlord"), and Century Southwest Cable Television,
Inc., a Delaware corporation, as Tenant, entered into a lease dated March 22,
1995, whereby Landlord leased to Tenant a portion of the second and third floors
of the building located at 3000 Ocean Park Boulevard, Santa Monica, California
(the "Building"), as more particularly described in the Master Lease, upon the
terms and conditions contained therein. A copy of the Master Lease is attached
hereto as Exhibit "A" and made a part hereof. All capitalized terms used herein
shall have the same meaning ascribed to them in the Master Lease unless
otherwise defined herein.
WHEREAS, Sublandlord and Subtenant are desirous of entering into a
sublease of a portion of the second floor of the building shown cross-hatched in
black on the demising plan annexed hereto as Exhibit "B" and made a part hereof
("Sublease Premises"), on the terms and conditions hereafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto mutually
covenant and agree as follows:
1. Demise. Sublandlord hereby subleases and demises to Subtenant and
Subtenant hereby hires and subleases from Sublandlord the Sublease Premises
(which the parties stipulate contain 16,162 rentable square feet), on the second
floor of the Building, upon and subject to the terms, covenants, conditions
hereinafter set forth. Subtenant acknowledges that it has reviewed the Master
Lease (including the Parking License Agreement) and is familiar with the terms
and conditions thereof.
2. Sublease Term. The term of this Sublease ("Term") shall commence on
the later of (a) ten (10) days following approval of Landlord of fully executed
Sublease, or (b) January 1, 1996 ("Sublease Commencement Date") and ending,
unless sooner terminated as provided herein, on July 10, 2000 ("Sublease
Expiration Date").
3. Use. The Sublease Premises shall be used and occupied by Subtenant
for general office use and other legally permitted uses consistent with the
character of the Building and the Master Lease and for no other purpose.
4. Subrental.
(a) Base Rent. Beginning with the Sublease Commencement Date and
thereafter during the Term of this Sublease and ending on the Sublease
Expiration Date, Subtenant shall pay to Sublandlord rent based on the following
schedule:
$23,434.90 (=$1.45 PSF/RSF) for months 1-12
$25,051.10 (=$1.55 PSF/RSF) for months 13-24
$26,667.30 (=$1.65 PSF/RSF) for months 25-36
$28,283.50 (=$1.75 PSF/RSF) for months 37-48
$29,899.70 (=$1.85 PSF/RSF) for balance of Sublease Term.
Base Rent and additional rent shall hereinafter be collectively referred to as
"Rent".
(b) Prorations. If the Sublease Commencement Date is not the first
(1st) day of a month, or if the Sublease Expiration Date is not the last day of
a month, a prorated installment of monthly Base Rent based on a thirty (30) day
month shall be paid for the fractional month during which the obligation to pay
Rent commenced or terminated.
(c) Additional Rent. Beginning with the Sublease Commencement Date
and continuing to the Sublease Expiration Date, Subtenant shall pay to
Sublandlord as additional rent for this subletting all special or after-hours
cleaning, heating, ventilating, air conditioning, elevator and other Building
charges incurred at the request of, or on behalf of, Subtenant, or with respect
to the Sublease Premises and all other additional expenses, costs and charges
payable to Landlord in connection with Subtenant's use of the Sublease Premises.
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(d) Expenses. Beginning with the start of calendar year 1997 and
thereafter during the Term, Subtenant shall pay to Sublandlord as additional
rent for this subletting an amount equal to the increase, if any, in Expenses
which Sublandlord is required to pay under Article 6 of the Master Lease over
the amount of Expenses which Sublandlord is required to pay for calendar year
1996 under said Article 6; however, Subtenant's share of all Expenses that
exceed Landlord's 1996 Base Costs shall be 25.68 percent (25.68%) calculated
based upon the Sublease Premises of 16,162 RSF and the total Building Rentable
Area of 62.940 RSF.
(e) Payment of Rent. Except as otherwise expressly provided in this
Sublease, Rent shall be payable in lawful money without demand, and without
offset, counterclaim, or set-off, in monthly installments, in advance, on the
first day of each month and every month during the Term of the Sublease. All of
said Rent is to be paid to the Sublandlord at the address set forth below, or at
such other place or to such agent and at such place as Sublandlord may
designated by written notice to Subtenant. Any additional rent payable on
account of items which are not payable monthly by Sublandlord to Landlord under
the Master Lease is to be paid to Sublandlord as and when such items are payable
by Sublandlord to Landlord under the Master Lease unless a different time for
payment is elsewhere stated herein. Sublandlord agrees to provide Subtenant with
copies of any statements or invoices for any such items received by Sublandlord
from Landlord pursuant to the terms of the Master Lease.
5. Security Deposit and Financial Statements
(a) Security Deposit. Concurrently with the execution of this
Sublease, Subtenant shall deposit wit h Sublandlord the sum of $29,899.70
("Deposit"), which shall be held by Sublandlord as security for the full and
faithful performance by Subtenant of its covenants and obligations under this
Sublease. The Deposit is not an advance Rent deposit, an advance payment of any
other kind, or a measure of Sublandlord's damage in case of Subtenant's default.
If Subtenant defaults in the full and timely performance of any or all of
Subtenant's covenants and obligations set forth in this Sublease, then
Sublandlord may, from time to time, without waiving any other remedy available
to Sublandlord, use the Deposit, or any portion of it, to the extent necessary
to cure or remedy the default or to compensate Sublandlord for all or a part of
the damages sustained by Sublandlord resulting from Subtenant's default.
Subtenant shall immediately pay to Sublandlord within five (5) business days
following demand the amount so applied in order to restore the Deposit to its
original amount, and Subtenant's failure to immediately do so shall constitute a
default under this Sublease. If Subtenant is not in default with respect to the
covenants and obligations set forth in this Sublease at the expiration or
earlier termination of this Sublease, Sublandlord shall return the Deposit to
Subtenant within five (5) days after the expiration or earlier termination of
this Sublease. Sublandlord's obligations with respect to the Deposit are those
of a debtor and not a trustee. Sublandlord shall not be required to maintain the
Deposit separate and apart from Sublandlord's general or other funds and
Sublandlord may commingle the Deposit with any of Sublandlord's general or other
funds. Subtenant shall not at any time be entitled to interest on the Deposit.
(b) Financial Statements. Subtenant represents and warrants that the
Balance Sheet dated November 30, 1995 and the Statement of Operations for the
twelve-month period ending November 30, 1995 are, to the best of its knowledge,
true, correct and accurate.
6. Furniture. During the Term, Subtenant shall have the right to use,
at the Sublease Premises, the furniture currently at the Sublease Premises upon
the Sublease Commencement Date. Title to the furniture shall remain in
Sublandlord during the Sublease Term. Provided that this Sublease shall not have
been terminated early as a result of a default by Subtenant and further provided
that Subtenant shall not be in default on the Sublease Expiration Date, title to
the furniture shall automatically pass to Subtenant effective on the Sublease
Expiration Date. Sublandlord and Subtenant agree to accept as a General
Inventory of Furniture, Exhibit "C", to be included in this agreement and
attached hereto.
7. Expansion Right. For purposes of this Sublease, the term "Expansion
Space" shall refer to Suite(s) A, B and/or C within the 11,291 square-foot area
of the third floor of the Building as shown on Exhibit "D" hereto. In the event
that Subtenant desires to expand the Sublease Premises to include Suite(s) A, B
and/or C of the Expansion Space and that portion, or those portions, of the
Expansion Space desired has not been subleased by another party, and further
provided that Subtenant is not in default of this Sublease, Subtenant shall have
an option to expand the Sublease Premises to include Suite(s) A, B and/or C of
the Expansion Space under the same terms and conditions as are set forth in this
Sublease, and the rental amount per square foot for the Expansion Space shall be
the same as that in effect with respect to the original Sublease Premises at the
time of expansion. Any additional rent, expenses and the like payable by
Subtenant under the Sublease shall be increased in an amount proportionate to
the increase in the Sublease Premises.
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Subtenant shall exercise its expansion option, if any, by providing notice to
Sublandlord at least thirty (30) days prior to the effective date of such
expansion.
8. Parking. Subtenant shall have the right during the Term, to use up
to sixty-four (64) unassigned automobile parking privileges in the parking
facilities of the Building as the type set forth in the Parking License
Agreement attached to the Master Lease ("Parking Agreement"). All such parking
privileges shall be at the rates and subject to the terms and conditions set
forth in the Parking Agreement, and Subtenant shall reimburse Sublandlord, upon
demand, for those amounts billed to Sublandlord by Landlord for said parking
privileges.
9. Incorporation of Terms of Master Lease.
(a) This Sublease is subject and subordinate to the Master Lease.
Subject to the modifications set forth in this Sublease, the terms of the Master
Lease are incorporated herein by reference, and shall, as between Sublandlord
and Subtenant (as if they were Landlord and Tenant, respectively, under the
Master Lease) constitute the terms of this Sublease except to the extent that
they are inapplicable to, inconsistent with, or modified by, the terms of this
Sublease. In the event of any inconsistencies between the terms and provisions
of the Master Lease and the terms and provisions of this Sublease, the terms and
provisions of this Sublease shall govern, except in any such instance where
having the Sublease govern would constitute or cause a breach or default under
the Master Lease. Subtenant acknowledges that it has reviewed the Master Lease
(including the Parking Agreement) and is familiar with the terms and conditions
thereof.
(b) For the purposes of incorporation herein, the terms of the
Master Lease are subject to the following additional modifications:
(i) In all provisions of the Master Lease (under the terms
thereof and without regard to modifications thereof for purposes of
incorporation into this Sublease) requiring the approval or consent of Landlord,
Subtenant shall be required to obtain, in addition to an approval or consent of
Landlord, the approval or consent of Sublandlord, which shall not unreasonably
be withheld (with notice of approval, consent or denial thereof not to be
unreasonably delayed).
(ii) In all provisions of the Master Lease requiring Tenant to
submit, exhibit to, supply or provide Landlord with evidence, certificates, or
any other matter or thing, Subtenant shall be required to submit, exhibit to,
supply or provide, as the case may be, the same to both Landlord and
Sublandlord. In any such instance, Sublandlord shall reasonably determine if
such evidence, certificate or other matter or thing shall be satisfactory.
(iii) Neither Sublandlord nor Subtenant shall have any
obligation to restore or rebuild any portion of the Sublease Premises after any
destruction or taking by eminent domain.
10. Subtenant's Obligations. Subtenant covenants and agrees that all
obligations of Sublandlord under the Master Lease shall be done or performed by
Subtenant with respect to the Sublease Premises, except as otherwise expressly
provided by this Sublease, and Subtenant's obligations shall run to Sublandlord
and Landlord as Sublandlord may determine to be appropriate or be required by
the respective interests of Sublandlord and Landlord. Subtenant agrees to
indemnify and hold harmless Sublandlord from and against any and all claims,
damages, losses, expenses and liabilities (including reasonable attorneys' fees)
incurred as a result of the non-performance, non-observance or non-payment of
any of Sublandlord's obligations under the Master Lease, which, as a result of
this Sublease, became an obligation of Subtenant. If Subtenant makes any payment
to Sublandlord pursuant to this indemnity, Subtenant shall be subrogated to the
rights of Sublandlord concerning said payment. Subtenant shall not do or permit
to be done any act or thing which is, or with notice or the passage of time
would be, a default under this Sublease or the Master Lease.
11. Sublandlord's Obligations.
(a) Sublandlord agrees that Subtenant shall be entitled to receive
all services and repairs to be provided by Landlord to Sublandlord under the
Master Lease. Subtenant shall look solely to Landlord for all such services and
shall not, under any circumstances, seek or require Sublandlord to perform any
of such services, nor shall Subtenant make any claim upon Sublandlord for any
damages which may arise by reason of Landlord's default under the Master Lease.
Subtenant does hereby waive any cause of action and any right to bring any
action against Sublandlord by reason of any act or omission of Landlord under
the Master Lease. Sublandlord covenants and agrees with Subtenant that
Sublandlord will pay all fixed rent and
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additional rent payable by Sublandlord pursuant to the Master Lease to the
extent that failure to perform the same would adversely affect Subtenant's use
or occupancy of the Sublease Premises.
(b) In the event Landlord shall be in default of any covenant of or
shall fail to honor any obligation under the Master Lease or Parking License
Agreement, Subtenant shall have available to it, through the Sublandlord,
against Landlord, all of the remedies available (i) to Sublandlord under the
Master Lease in the event of a similar default on the part of the Landlord
hereunder, provided that Subtenant shall have first provided to Sublandlord
notice adequate pursuant to the Master Lease of such default or failure, or (ii)
at law.
12. Default by Subtenant. In the event Subtenant shall be in default of
any covenant of or shall fail to honor any obligation under this Sublease,
Sublandlord shall have available to it against Subtenant all of the remedies
available (a) to Landlord under the Master Lease in the event of a similar
default on the part of the Sublandlord hereunder or (b) at law.
13. Quiet Enjoyment. So long as Subtenant pays all of the Rent due
hereunder and performs all of Subtenant's other obligations hereunder,
Sublandlord shall do nothing to affect Subtenant's right to peaceable and
quietly have, hold and enjoy the Sublease Premises.
14. Notices. Anything contained in any provisions of this Sublease to
the contrary notwithstanding, Subtenant agrees, with respect to the Sublease
Premises, to comply with and remedy any default in this Sublease of the Master
Lease which is Subtenant's obligation to cure, within the period allowed to
Sublandlord under the Master Lease, even if such time period is shorter than the
period otherwise allowed therein due to the fact that notice of default from
Sublandlord to Subtenant is given after the corresponding notice of default from
Landlord to Sublandlord. Sublandlord agrees to forward to Subtenant, promptly
upon receipt thereof by Sublandlord, a copy of each notice of default received
by Sublandlord in its capacity as Tenant under the Master Lease. Subtenant
agrees to forward to Sublandlord, promptly upon receipt thereof, copies of any
notices received by Subtenant from Landlord or from any governmental
authorities. All notices, demands and requests shall be in writing and shall be
sent either by hand delivery by a nationally recognized overnight courier
service (e.g., Federal Express), or by certified U.S. mail, in either case
return receipt requested, to the address of the appropriate party. Notices,
demands and requests so sent shall be deemed given when the same are received.
Notices to Subtenant shall be sent to the attention of:
CyberMedia, Inc.
3000 Ocean Park Boulevard, Suite 2001
Santa Monica, California 90405
Attention: Controller
Notices to Sublandlord shall be sent to the attention of:
Century Southwest Cable Television, Inc.
c/o Century Communications Corp.
50 Locust Avenue
New Canaan, Connecticut 06840
Attention: Assistant Controller
with copy to:
Legal Department
c/o Century Communications Corp.
50 Locust Avenue
New Canaan, Connecticut 06840
15. Broker. Sublandlord and Subtenant represent and warrant to each
other that with the exception of Les Small & Company representing Subtenant and
Cushman & Wakefield of California, Inc. representing Sublandlord (collectively
"Brokers"), no brokers were involved in connection with the negotiation or
consummation of this Sublease. Sublandlord agrees to pay the commission of the
Brokers pursuant to the October 20, 1995 Exclusive Leasing Agreement between
Cushman & Wakefield of California, Inc. and Sublandlord. Each party agrees to
indemnify the other, and hold it harmless, from and against any and all claims,
damages, losses, expenses and liabilities (including reasonably attorneys' fees)
incurred by said party as a result of a breach of this representation and
warranty by the other party.
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16. Condition of Premises. Subtenant acknowledges that it is subleasing
the Sublease Premises "as-is" and that Sublandlord is not making any
representation or warranty concerning the condition of the Sublease Premises and
that Sublandlord is not obligated to perform any work to prepare the Sublease
Premises for Subtenant's occupancy. Subtenant acknowledges that it is not
authorized to make or do any alterations or improvements in or to the Sublease
Premises except as permitted by the provisions of this Sublease and Master Lease
and that it must deliver the Sublease Premises to Sublandlord on the Sublease
Expiration Date in the condition required by the Master Lease, except that it
may leave the Tenant Improvements in place.
17. Consent of Landlord. This Sublease shall not be effective unless
and until Landlord executes the Consent of Landlord attached hereto.
18. Termination of the Master Lease. If for any reason the term of the
Master Lease shall terminate prior to the Sublease Expiration Date, this
Sublease shall automatically be terminated and Sublandlord shall not be liable
to Subtenant by reason thereof unless said termination shall have been caused by
the default of Sublandlord under the Master Lease and said Sublandlord default
was not caused or contributed to by a Subtenant default hereunder.
19. Assignment and Subletting.
(a) Independent of and in addition to any provisions of the Master
Lease, including without limitation the obligation to obtain Landlord's consent
to any assignment, it is understood and agreed that Subtenant shall have no
right to sublet the Sublease Premises or any portion thereof or any right or
privilege appurtenant thereto; provided, however that Subtenant shall have the
right to assign this Sublease or any interest therein, and to suffer or permit
any other person (other than agents, servants or associates of the Subtenant) to
occupy or use the Sublease Premises, only upon the prior written consent of
Sublandlord, which consent shall not be unreasonably withheld, and upon the
prior consent of Landlord. Any assignment by Subtenant without Sublandlord's and
Landlord's prior written consent shall be void and shall, at the option of
Sublandlord, terminate this Sublease.
(b) Subtenant shall advise Sublandlord by notice of (i) Subtenant's
intent to assign this Sublease, (ii) the name of the proposed assignee and
evidence reasonably satisfactory to Sublandlord that such proposed assignee is
comparable in reputation, stature and financial condition to tenants then
leasing comparable space in comparable buildings, and (iii) the terms of the
proposed assignment. Sublandlord shall within thirty (30) days after receipt of
such notice, and any additional information requested by Landlord concerning the
proposed assignee's financial responsibility, elect of the following:
(i) Consent to such proposed assignment; or
(ii) Refusal of such consent, which refusal shall be on
reasonable grounds.
(c) In the event that Sublandlord shall consent to an assignment
under the provisions of this section, Subtenant shall pay Sublandlord's and
Landlord's reasonable processing costs and reasonable attorneys' fees incurred
in giving such consent, not to exceed $1,000.00 (One Thousand Dollars).
Notwithstanding any permitted assignment, Subtenant shall at all times remain
directly, primarily and fully responsible and liable for all payment owed by
Subtenant under the Sublease and for compliance with all obligations under the
terms, provisions and covenants of the Sublease. If, for any proposed
assignment, Subtenant receives Rent (excluding any abated Rent) or other
consideration, either initially or over the term of the assignment, in excess of
the Rent required by this Sublease, after a deduction for (a) any brokerage
commission paid by Subtenant in connection therewith, and (b) any reasonable
attorneys' fees incurred by Subtenant in connection with preparing and
negotiating an assignment document, and (c) any other reasonable marketing costs
incurred by Subtenant for the purpose of effecting such assignment (such amount,
less deductions for (a), (b) and (c), referred to as "Profit"), Subtenant shall
pay to Sublandlord as Additional Rent, fifty percent (50%) of such Profit or
other consideration received by Subtenant within five (5) days after its receipt
by Subtenant or, in the event the assignee makes payment directly to
Sublandlord, Sublandlord shall refund fifty percent (50%) of the Profit to
Subtenant.
20. Limitation of Estate. Subtenant's estate shall in all respects be
limited to, and be construed in a fashion consistent with, the estate granted to
Sublandlord by Landlord. Subtenant shall stand in the place of Sublandlord and
shall defend, indemnify and hold harmless Sublandlord with respect to all
covenants, warranties, obligations, and payments made by Sublandlord under or
required of Sublandlord by the Master Lease with respect to the Subleased
Premises. In the event Sublandlord is prevented from performing any of its
obligations under this Sublease by a breach by Landlord of a term of the Master
Lease, then
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Sublandlord's sole obligation in regard to its obligation under this Sublease
shall be to use reasonable efforts in diligently pursuing the correction or cure
by Landlord of Landlord's breach.
21. Entire Agreement. It is understood and acknowledged that with the
exception of the Master Lease, there are no oral or other agreements between
parties hereto affecting this Sublease and this Sublease supersedes and cancels
any and all previous negotiations, arrangements, brochures, letters of intent,
agreements and understandings, if any, between the parties hereto or displayed
by Sublandlord to Subtenant with respect to the subject matter thereof, and none
thereof shall be used to interpret or construe this Sublease. This Sublease, and
exhibits attached hereto, contain all of the terms, covenants, conditions,
warranties and agreements of the parties relating in any manner to the rental,
use and occupancy of the Sublease Premises and shall be considered to be the
only agreements between the parties hereto and their representatives and agents.
None of the terms, covenants, conditions or provisions of this Sublease can be
modified, deleted or added to except in a writing signed by the parties hereto.
All negotiations and oral agreements acceptable to both parties have been merged
into and are included herein and in the Master Lease. There are no other
representations or warranties between the parties, and all reliance with respect
to representations is based totally upon the representations and agreements
contained in this Sublease.
22. Severability. In the event that any provision of this Sublease is
invalid or unenforceable, the remainder of this Sublease shall not be affected.
and a suitable and equitable provision shall be substituted for the invalid or
unenforceable provision in order to carry out, as far as may be valid and
enforceable, the intent and purpose of such invalid or unenforceable provision.
IN WITNESS WHEREOF, the parties have entered into this Sublease as of
the date first written above.
SUBLANDLORD:
CENTURY SOUTHWEST CABLE TELEVISION, INC.
By: Illegible
____________________________________
Name:___________________________________
Its:____________________________________
SUBTENANT:
CYBERMEDIA CORPORATION
By: Illegible
____________________________________
Name:___________________________________
Its:____________________________________
Exhibit A Lease dated March 22, 1995 between Century Southwest Cable
Television, Inc., a Delaware corporation, and Barclay Curci
Investment Company, a California general partnership.
Exhibit B Plan of Sublease Premises.
Exhibit C General Inventory of Furniture.
Exhibit D Expansion Space.
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EXHIBIT B
DESCRIPTION OF PREMISES
Suite 2001
3000 Ocean Park Boulevard ("R")
Santa Monica, California
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EXHIBIT "C"
GENERAL INVENTORY OF FURNITURE
Workstations assembled 36
Workstations unassembled (in training room) All
Office desks 16
Executive desk and bookcase 1 & 1
Round desks/conference 10
Large conference table 1
Small conference table 1
Rectangle tables (in training room) 11
Armchairs (swivel) (6 in the training room) 89
Chairs (nonswivel) (6 in the training room) 69
Conference chairs (in training room) 20
Credenza 17
Black shelving (almost in all offices) multiple
Filing cabinets (almost in all offices and workstations) multiple
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EXHIBIT D
DESCRIPTION OF PREMISES
A = 1,109 USF
B = 1,342 USF
C = 7,689 USF
Suite 3010
3000 Ocean Park Boulevard ("R")
Santa Monica, California
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CONSENT TO SUBLETTING
(Amendment)
THIS CONSENT TO SUBLETTING ("Consent") is made as of this 24th day of
May, 1996, by and among BARCLAY CURCI INVESTMENT COMPANY, a California general
partnership ("Landlord"), CENTURY SOUTHWEST CABLE TELEVISION, INC., a Delaware
corporation ("Tenant"), and CYBERMEDIA, INC., a California corporation
("Subtenant").
RECITALS
A. Landlord and Tenant entered into that certain Office Lease made as
of March 22, 1995 ("Master Lease"), wherein Landlord leased to Tenant certain
premises known as Suites 2001 and 3010 ("Premises") in that certain building
located at 3000 Ocean Park Boulevard in the City of Santa Monica, County of Los
Angeles, State of California ("Building"), in a project generally referred to as
Santa Monica Business Park ("Project"), and as more particularly described in
the Master Lease.
B. Tenant and Subtenant entered into that certain Sublease Agreement
dated December 19, 1995 ("Sublease"), wherein Tenant subleased to Subtenant (the
"Transaction") all, or a portion, of the Premises ("Subleased Premises") as more
particularly described in the Sublease.
C. By that certain Consent to Subletting dated February 23, 1996
("Original Consent") by and among Landlord, Tenant and Subtenant, Landlord
consented to the Transaction subject to each and every provision contained in
the Original Consent.
D. Tenant and Subtenant entered into that certain First Addendum to
Sublease effective January 15, 1996, and that certain undated Second Addendum to
Sublease (collectively, "Amendment"), true and correct copies of which are
attached to this Consent.
E. The effectiveness of the Amendment is subject to the consent of
Landlord.
F. Tenant and Subtenant desire to obtain the consent of Landlord to the
Transaction as modified by the Amendment.
NOW, THEREFORE, Landlord hereby reaffirms its consent to the
Transaction subject to and upon the following express terms and conditions, to
which Tenant and Subtenant hereby agree:
1. All initial capitalized terms used in this Consent shall have the
same meaning given such terms in the Master Lease, unless otherwise defined in
this Consent.
2. Tenant and Subtenant represent and warrant to Landlord that the
Amendment to which this Consent is attached (and which by this reference is
incorporated herein), is a true, correct and complete copy of the Amendment
executed by Tenant and Subtenant, that the Sublease has not otherwise been
modified or amended and that there exists no other agreements between Tenant and
Subtenant relating to the Sublease or the Subleased Premises or with respect to
the sale of any fixtures, furnishings, equipment or personal property located
upon the Subleased Premises.
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3. Subject to the provisions hereof, and with special reference to
Section 5 below, Landlord hereby acknowledges that the Sublease has been amended
by the Amendment and reaffirms its consent to Transaction contained in the
Original Consent.
4. Each of the parties hereby agrees and affirms that, except as
otherwise expressly provided in this Consent, all of the terms, covenants and
conditions contained in the Original Consent shall remain in full force and
effect.
5. This Consent shall not be effective and the Amendment shall not be
valid unless and until a fully-executed counterpart of this Consent and the
Amendment have been delivered to Landlord.
6. Both Tenant and Subtenant shall be entirely responsible for any and
all commissions, fees and costs for any brokers, finders, agents or other
persons with respect to the Sublease as amended. Tenant and Subtenant, jointly
and severally, shall indemnify, defend and hold Landlord harmless from and
against any claims for any such commissions, fees and costs, and for all costs,
expenses and liabilities incurred in connection with such claims, including
without limitation, attorneys' fees and costs.
7. The Sublease, the Amendment and/or this Consent shall not have the
effect of (a) operating as a consent to, or the approval or the ratification by
Landlord of, any of the provisions contained in the Sublease or the Amendment,
or (b) being construed to modify, waive, impair or affect (i) any of the
covenants, agreements, terms, provisions or conditions contained in the Master
Lease, (ii) any of Tenant's obligations under the Master Lease, or (iii) any
breach or default by Tenant in the performance or observance of its obligations
under the Master Lease, or (c) increasing Landlord's obligations or Tenant's
rights under the Master Lease.
8. Landlord shall not be bound by or in any way estopped by the
provisions of the Sublease or the Amendment.
9. Without limiting any provision contained herein, and notwithstanding
any provision to the contrary contained in the Sublease or the Amendment, the
parties acknowledge that this Consent is not, and shall not be construed as, the
consent to any work of improvement that the parties may desire to undertake upon
the Subleased Premises or the waiver of any provision regarding the restoration
of the Subleased Premises upon the expiration or earlier termination of the
Master Lease, and that all such matters shall be governed by the appropriate
provisions contained in the Master Lease.
10. This Consent is not, and shall not be construed as, the consent to,
or waiver of any right by Landlord, to approve any subsequent subletting or
amendments thereto, assignment or other transaction by Tenant or Subtenant.
Tenant and Subtenant warrant that the Amendment does not provide Subtenant with
the right to assign, mortgage, hypothecate or encumber the Subleased Premises or
Subtenant's interests therein or to sublet the Subleased Premises or any part
thereof, except as expressly permitted by the provisions of the Master Lease.
11. This Consent is not assignable by Tenant or Subtenant.
12. This Consent shall be construed in accordance with the laws of the
State of California, contains the entire agreement of the parties hereto with
respect to the subject matter hereof, and may not be modified or terminated
except in writing by all the parties hereto.
13. This Consent may be executed in counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
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<PAGE> 12
IN WITNESS WHEREOF, Landlord, Tenant and Subtenant have duly executed
this Consent or caused this Consent to be executed by their duly authorized
representatives as of the day and year first above written.
TENANT: CENTURY SOUTHWEST CABLE TELEVISION, INC.,
a Delaware corporation
By: Illegible
______________________________________
Name:____________________________________
Title:___________________________________
By:______________________________________
Name:____________________________________
Title:___________________________________
SUBTENANT: CYBERMEDIA, INC.,
a California corporation
By: Illegible
______________________________________
Name:____________________________________
Title:___________________________________
By:______________________________________
Name:____________________________________
Title:___________________________________
LANDLORD: BARCLAY CURCI INVESTMENT COMPANY,
a California general partnership
By: SC ENTERPRISES,
a California limited partnership,
a general partner
By: SHURL CURCI,
a general partner
By: Illegible
_____________________________
Roberta P. Irish,
his attorney-in-fact
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<PAGE> 13
SECOND ADDENDUM TO SUBLEASE
This SECOND ADDENDUM TO SUBLEASE AGREEMENT ("Second Addendum") modifies
that Sublease Agreement entered into on December 19,1995 by and between Century
Southwest Cable Television, Inc. ("Sublandlord" or "Tenant") and CyberMedia
Corporation ("Subtenant"), as amended by the First Addendum to Sublease between
Sublandlord and Subtenant effective January 15,1996 (the "Sublease Agreement")
as follows:
1. Subtenant and Sublandlord hereby agree that, in addition to the
Sublease Premises described in Paragraph 1 of the Sublease Agreement,
Sublandlord hereby subleases and demises to Subtenant and Subtenant
hereby hires and subleases from Sublandlord the Expansion Space, as
defined in this paragraph 1, which the parties stipulate contain 11,291
rentable square feet. The term "Expansion Space" shall refer to Suites
A, B and C within the 11,291 square foot area of the third floor of the
Building as shown on Exhibit "D" of the Sublease Agreement. Except as
otherwise provided herein, the term "Sublease Premises" as used in the
Sublease Agreement and this Second Addendum shall include the Expansion
Space.
2. Beginning with the effective date of this Second Addendum and
thereafter during the Term of the Sublease Agreement and ending on the
Sublease Expiration Date, Subtenant shall pay to Sublandlord, in
addition to the amounts set forth in the Sublease Agreement, a Base
Rent amount of $14,113.75 (= $1.25 PSF/RSF) per month for the Expansion
Space, and the term "Base Rent" as used in the Sublease Agreement shall
include this additional amount.
3. Paragraph 4(d) of the Sublease Agreement is hereby modified by
replacing the number "25.68" with the number "43.617" throughout the
paragraph and by replacing the number "16,162" with the number
"27,453."
4. Concurrently with the execution of this Second Addendum, Subtenant
shall deposit with Sublandlord the sum of $14,113.75. The term
"Deposit" as used in the Sublease Agreement shall include this
additional amount, for a total Deposit amount of $44,003.45.
5. Subtenant represents and warrants that the Balance Sheet dated March
31,1996 and the Statement of Operations for the three-month period
ending March 31, 1996 are, to the best of its knowledge, true, correct
and accurate.
6. Paragraph 7 of the Sublease Agreement is hereby deleted.
7. Notwithstanding anything to the contrary in the Sublease Agreement,
Sublandlord hereby reserves all of its rights with respect to any
default by Subtenant of the Sublease Agreement, and Subtenant and
Sublandlord agree that nothing contained in this Second Addendum shall
be construed as an admission by Sublandlord that Subtenant is not in
default of the Sublease Agreement.
8. Beginning with the effective date of this Second Addendum and
thereafter during the Term of the Sublease Agreement and ending on the
Sublease Expiration Date, Subtenant shall have the right to use,
subject to the terms and conditions of the Sublease Agreement, forty
(40) unassigned automobile parking spaces in addition to the parking
privileges set forth in paragraph 8 of the Sublease Agreement.
<PAGE> 14
9. Sublandlord and Subtenant represent and warrant to each other that,
with the exception of Cushman & Wakefield of California, Inc. ("C&W")
representing Sublandlord, no brokers were involved in connection with
the negotiation or consummation of this Second Addendum. Sublandlord
agrees to pay the commission of C&W pursuant to the October 20th, 1995
Exclusive Leasing Agreement between C&W and Sublandlord.
Notwithstanding anything to the contrary in the Sublease Agreement, the
October 20,1995 Exclusive Leasing Agreement as defined in the Sublease
Agreement, or any other agreement between Sublandlord and Subtenant or
between Sublandlord and any broker or between Subtenant and any broker,
Subtenant hereby agrees to indemnify and hold harmless Sublandlord and
C&W from and against any and all claims, damages, losses, expenses and
liabilities (including reasonable attorneys' fees) arising out of or
related to any breach by Subtenant of its representation and warranty
contained in this paragraph 9, including without limitation those
arising out of or related to any alleged representation of Subtenant at
any time by Les Small & Company and any of its employees and agents,
including without limitation, Seth Horowitz. Subtenant acknowledges and
agrees that this indemnity agreement of Subtenant is a material
inducement for Sublandlord to enter into this Second Addendum and that
any breach of this indemnity agreement shall be construed to be a
breach of a material term of the Sublease Agreement.
10. Notwithstanding anything to the contrary in the Sublease Agreement,
Subtenant agrees that Subtenant is leasing the Expansion Space "as is"
and that no furniture or fixtures are included in the Expansion Space.
11. This Second Addendum shall not be effective until the date on which
Sublandlord receives an acceptable Consent to this Second Addendum
which has been fully executed by Sublandlord, Subtenant and Landlord,
and this Second Addendum shall not be effective earlier than May 15,
1996.
12. All terms and conditions of the Sublease Agreement, as amended by the
First Addendum to Sublease, which are not expressly modified by this
Second Addendum, shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have entered into this Second Addendum
as of the date first written above.
SUBLANDLORD: CENTURY SOUTHWEST CABLE TELEVISION
By: Illegible
_______________________________________
Name:_____________________________________
Its_______________________________________
SUBTENANT: CYBERMEDlA CORPORATION
By: Illegible
_______________________________________
Name:_____________________________________
Its_______________________________________
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<PAGE> 15
OFFICE LEASE
This Lease is made as of this 22nd day of March, 1995 by and between
BARCLAY CURCI INVESTMENT COMPANY, a California general partnership ("Landlord"),
and CENTURY SOUTHWEST CABLE TELEVISION, INC., a Delaware corporation ("Tenant").
In consideration of the rents and covenants hereinafter set forth,
Landlord hereby leases to Tenant and Tenant hereby rents from Landlord the
following described Premises, upon the following terms and conditions:
1. FUNDAMENTAL LEASE PROVISIONS
1.1 PREMISES: Project: Santa Monica Business Park (Article 2)
Building: 3000 Ocean Park Boulevard ("R")
Suites: 2001 and 3010 Floors: Second and Third
City: Santa Monica
County: Los Angeles
State: California
1.2 FLOOR AREA: Rentable Area: 16,162 square feet on second floor and (Article 2)
11,291 square feet on the third floor for a total of
27,453 square feet.
Usable Area: 14,430 square feet on second floor and
10,081 square feet on the third floor for a total of
24,512 square feet.
1.3 TERM: Sixty (60) months. (Article 3)
1.4 BASIC RENT: Dollars Per Dollars Per
Months Rentable Square Foot Month
------ -------------------- -----
1-60 $1.70 $46,670.10 (Article 4)
1.5 EXPENSES: Tenant shall pay Tenant's Share of all Expenses that (Article 6)
exceed Landlord's Base Year Costs together with other
items of Expense as set forth in Article 6. Tenant's Share
is 43.617%. The Base Year shall be the calendar year 1995.
1.6 AFTER-HOURS As of the Commencement Date, Tenant shall pay (Article 12)
CHARGES: After-Hours Charges for Air Conditioning at $25.00 per
hour per unit.
1.7 PREPAID Tenant shall pay the Basic Rent for the first month of the (Article 4)
RENT: term upon execution of this Lease.
1.8 SECURITY None. (Article 9)
DEPOSIT:
1.9 LANDLORD'S c/o TRANSPACIFIC DEVELOPMENT COMPANY (Article 37)
ADDRESS FOR 2377 Crenshaw Boulevard, Suite 300
NOTICES: Torrance, California 90501-3325
1.10 TENANT'S Century Southwest Cable Television, Inc. (Article 37)
ADDRESS FOR 2939 Nebraska
NOTICES: Santa Monica, CA 90404
Attention: Ms. Margaret Bellville
or, after the commencement of the term, to the Premises.
and
Legal Department
c/o Century Communications Corp.
50 Locust Avenue
New Canaan, CT 06840
<PAGE> 16
1.11 BROKER: Transpacific Development Company; Julien J. Studley, (Section 39.3)
Inc.; Cushman & Wakefield.
1.12 GUARANTY: The performance of Tenant's
obligations under this Lease is guaranteed
by Century Communications Corp., a Texas
corporation, pursuant to a Guaranty
Agreement in the form attached hereto as
Exhibit G.
2. PREMISES
2.1. The approximate location of the premises (the "Premises") leased
hereunder is shown on the drawing attached hereto as Exhibit A. The Premises
consist of that certain space situated in the building (the "Building")
described in Section 1.1 hereof. The total rentable area of the Building is
stipulated to be 62,940 square feet. As used in this Lease, the following terms
have the meanings indicated:
2.1.1. The term "gross area" or "gross square footage" means the
entire area being measured, including vertical elevator and ventilation shafts,
maintenance, telephone, mechanical and electrical rooms and closets, and all
other public areas measured from the exterior of exterior walls and from the
center line of interior demising walls;
2.1.2. The term "usable area" or "usable square footage" means the
entire floor area of tenant space being measured, excluding vertical shafts and
all public areas, measured from the exterior walls and the exterior of interior
corridor walls, and the center line of interior demising walls; and
2.1.3. The term "rentable area" or "rentable square footage" means
the entire area measured in the same way within exterior Building walls
including all common or public areas of the Building allocated proportionately
to each floor of the Building but excluding public stairwells and such vertical
shafts. As to the area leased by Tenant, the rentable area is stipulated to be
the usable area of the Premises increased by twelve percent (12%).
2.2. Landlord and Tenant have satisfied themselves that the "usable
area" and "rentable area" of the Premises and the "rentable area" of the
Building as specified in this Lease are accurate, and they agree to be bound for
all purposes of this Lease to use such usable area and rentable area as are
herein stipulated. Neither Landlord nor Tenant shall have any claims against the
other, or any defense to enforcement of this Lease, due to any subsequently
discovered variation between the usable area and the rentable area stipulated
herein and the actual usable area or rentable area of the Premises or the actual
rentable area of the Building.
2.3. The Premises are (or when constructed will be) a part of a
business/commercial complex consisting of the Building and other buildings,
landscaping, parking facilities and other improvements described as the
"Project" in Section 1.1 hereof and the underlying land. The Project is
generally shown on the drawing attached hereto as Exhibit A-1. Landlord may, in
its sole discretion, change the size, shape, location, number and extent of any
or all of the improvements in the Project without any liability to or consent of
Tenant, except that, unless required to comply with applicable legal
requirements, there shall be no material change in the interior of the Premises
or the access to the Premises or the location and quantity of parking facilities
serving the Premises. Landlord's voluntary changes to the Project shall not
materially increase Tenant's obligation to pay Expenses pursuant to Article 6.
Landlord shall use commercially reasonable efforts to provide Tenant with five
(5) business days prior notice (or shorter notice in case of emergency) of any
of the actions described in this Section 2.3, and in Sections 2.4 and 2.5 below,
to be taken by Landlord if such action will substantially interfere with
Tenant's ability to (i) conduct business in the Premises, (ii) gain access to
and from the parking facilities and adjacent streets, or (iii) use the parking
facilities. However, Tenant shall have no claim for damages in case of
Landlord's failure to give such notice. Landlord shall in all events act
reasonably to avoid or minimize material interference with Tenant's use due to
Landlord's actions under this Section 2.3 and Sections 2.4 and 2.5 below. Tenant
does not rely on the fact nor does Landlord represent that any specific tenant
or number of tenants shall occupy any space in the Project.
2.4. Landlord reserves the right to use the roof and exterior walls of
the Premises, and the area beneath, adjacent to and above the Premises, together
with the right (subject to Section 2.3 above) to install, use, maintain and
replace equipment, machinery, pipes, conduits and wiring through the Premises,
which serve other parts of the Project, in a manner and in locations which do
not unreasonably interfere with Tenant's use of the Premises. No light, air or
view easement is created by this Lease.
2.5. Tenant hereby acknowledges that the Project is being, or may be,
constructed or reconstructed in phases, and that by reason of construction or
reconstruction activities there may be temporary incidents
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<PAGE> 17
thereof such as dust, dirt, barricades, detours, equipment or material in the
Building or Common Areas. Tenant hereby agrees that so long as Landlord conducts
such activities in a reasonable manner (including reasonable efforts to avoid or
minimize interference with Tenant's use) Landlord shall not be liable for any
such incidents of construction or reconstruction.
2.6. Except as specifically provided in the "Construction Provisions"
describing the construction of leasehold improvements (if any), attached hereto
as Exhibit C, Tenant shall lease the Premises on an "As Is" basis and Landlord
shall have no obligation to improve, remodel, alter or otherwise modify the
Premises prior to Tenant's occupancy. Landlord shall deliver the "Base
Building," as that term is defined on the Construction Provisions, to Tenant on
the date which is the first business day following the full execution and
delivery of this Lease by Landlord and Tenant and Tenant's delivery of the
Guaranty Agreement, in the form attached as Exhibit Gateway to this Lease, fully
executed by the Guarantor named therein and in Section 1.12 above. If Landlord
does not deliver the Base Building by the date which is five (5) business days
after the delivery date established in the preceding sentence (the "Outside
Date"), then Tenant shall have the right to deliver a notice to Landlord (a
"Termination Notice") electing to terminate this Lease effective upon the date
occurring fifteen (15) business days following receipt by Landlord of the
Termination Notice (the "Effective Date"). If Landlord delivers the Base
Building after Tenant's delivery of a Termination Notice but before the
Effective Date, Tenant's Termination Notice shall be disregarded and this Lease
shall continue in full force and effect. Upon any termination as set forth in
this Section 2.6, Landlord and Tenant shall be relieved from any and all
liability to each other resulting hereunder except that Landlord shall return to
Tenant any prepaid rent. Tenant's right to terminate this Lease, as set forth in
this Section 2.6, shall be Tenant's sole and exclusive remedy at law or in
equity for the failure of the delivery of the Base Building to occur as set
forth above.
2.7. Landlord shall maintain and operate the Building in a manner
comparable to other first-class office buildings in Santa Monica.
3. TERM
3.1. Commencement Date. The term of this Lease shall be for the
duration set forth in Section 1.3 hereof. The term of this Lease shall commence
on the earlier to occur of (i) one hundred ten (110) days after the full
execution and delivery of this Lease and delivery of possession of the Premises,
or (ii) if the date Tenant (or any subtenant) occupies or commences using any
part of the Premises for the conduct of Tenant's business occurs before one
hundred ten (110) days after the full execution and delivery of this Lease and
delivery of possession of the Base Building, then on the date which represents
the midpoint between the date such beneficial use begins and one hundred ten
(110) days after the full execution and delivery of this Lease and delivery of
possession of the Premises. The date on which the term of this Lease commences
pursuant to the foregoing (the "Commencement Date") shall be confirmed by
Landlord and Tenant in the form set forth in Exhibit B attached hereto when the
same can be ascertained. Failure of Tenant to execute Exhibit B within ten (10)
days after written request from Landlord shall be a material default hereunder.
This Lease shall be a binding contractual agreement effective upon the date of
execution hereof by both Landlord and Tenant, notwithstanding the later
commencement of the term of this Lease; and Tenant's use and occupancy of the
Premises prior to the Commencement Date shall be subject to all terms and
conditions of this Lease, except that Tenant shall not be obligated to pay Rent
prior to the Commencement Date.
3.2. Duration of Term. Tenant has Options to Extend Term under Article
43 below. If the Lease is extended by virtue of an Option to Extend Term,
references herein to "term of this Lease" and words of similar import shall mean
the term specified in Section 1.3 (the "Initial Term"), together with any
Extended Term(s) under Article 43, unless otherwise expressly stated or required
by the context.
4. RENT AND EXPENSE PAYMENTS
4.1. General. The "Rent" or "Rental" hereunder is composed of "Basic
Rent" as set forth in Section 1.4 hereof and adjustments thereto as hereinafter
provided. The term "Expenses" hereunder means all costs, expenses, fees, charges
or other amounts described in Article 6. Tenant agrees to pay to Landlord all
Rent and Expenses required under this Lease, which shall be payable monthly to
Landlord (unless expressly provided otherwise), without deduction or offset
(except as herein expressly provided), in lawful money of the United States of
America at the office maintained by Landlord in the Project or at such other
place as Landlord may from time to time designate in writing. Notwithstanding
any contrary provisions of this Lease, all Expenses, late payment fees,
interest, "After-Hours Charges" parking fees payable under the "Parking License
Agreement" attached hereto, and all other sums of money or charges required to
be paid pursuant to this Lease shall be deemed "Additional Rent" for the
Premises; and in any notice to pay rent or quit the Premises, Landlord may
include and designate same as rent then past due and owing, if such is the case.
No acceptance by Landlord of partial payment of any sum due from Tenant shall be
deemed a waiver by Landlord of any of
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<PAGE> 18
its rights to the full amount due, nor shall any endorsement or statement on any
check or accompanying letter from Tenant be deemed an accord and satisfaction.
Any Rent payments or other sums received from Tenant or am other person shall be
conclusively presumed to have been paid on Tenant's behalf, unless Landlord has
been given prior written notice to the contrary by Tenant. Tenant agrees that
the acceptance by Landlord of any such payment shall not constitute a consent by
Landlord or a waiver of any of its rights under this Lease. In no event shall
the foregoing be construed as requiring Landlord to accept any Rent or other
sums from any person other than Tenant or an "Affiliate" of Tenant (as defined
in Section 28.12 hereof). If the term hereof begins or ends on a day other than
the last day of a month, then the Rent and Expenses for such month shall be
prorated based on the actual number of days in such month. All prorations of
Rent or Expenses under this Lease for fractional periods shall be based on the
actual number of days in such month or year in question.
4.2. Basic Rent. Tenant shall pay the "Basic Rent" set forth in Section
1.4 hereof on the first day of each month in advance, beginning on the
Commencement Date. Landlord may, but shall not be obligated to, send a bill or
statement for Rent to Tenant each month, but Tenant shall be obligated to pay
Rent on the first day of each month regardless of whether or not it receives a
bill or statement.
4.3. Prepaid Rent. Tenant shall pay prepaid Basic Rent for the first
month of the term concurrently with the execution of this Lease, as set forth in
Section 1.7 hereof. The prepaid Basic Rent shall be credited against the Basic
Rent due on the Commencement Date; and if the Commencement Date is a day other
than the first day of a calendar month, the unused portion of the prepaid Basic
Rent shall be credited against the Basic Rent for the second month of the term.
5. INTENTIONALLY OMITTED
6. EXPENSES
6.1. Tenant shall pay its share of "Expenses" on the first day of each
month during the term hereof or otherwise as set forth in this Article 6. The
monthly Expenses payable by Tenant hereunder consist of the amount by which
Tenant's Share of Expenses exceeds Landlord's Base Year Costs (as such terms are
hereinafter defined), calculated as follows: Total Expenses (estimated or
actual) multiplied by Tenant's Share minus Landlord's Base Year Costs, divided
by twelve (12) months.
6.2. Definitions. As used in this Lease, the following terms have the
meanings indicated:
6.2.1. "Landlord's Base Year Costs" means the annualized dollar
amount which results from multiplying the total Expenses incurred by Landlord
during the Base Year (including any adjustment thereto pursuant to Section 6.5.2
below) by Tenant's Share. Such amount constitutes the amount per year which
Landlord agrees to pay towards Expenses allocable to the Premises, without
reimbursement from Tenant. Landlord and Tenant intend that, insofar as is
commercially reasonable Landlord's Base Year Costs shall be calculated in a
manner which avoids unfairly overstating or understating the Expenses for the
Base Year. Accordingly, to the extent any item of Expenses is permitted to be
included, pursuant to the terms of this Lease, in the calculation of Landlord's
Base Year Costs, the amount of same shall be included therein or, if not so
included, such item shall be excluded in calculating the Expenses during any
"Subsequent Year," as defined in Section 6.2.6 below. Notwithstanding the
foregoing, if Landlord omits from the calculation of Landlord's Base Year Costs
an item of Expense properly includable therein, Landlord may include such item
in Expenses for Subsequent Years provided Landlord first grosses-up Landlord's
Base Year Costs to include the cost of such item during the Base Year.
Furthermore, nothing in this Section 6.2.1 shall be construed to require that
Landlord include in the calculation of Landlord's Base Year Costs any Expenses
which Landlord is not required to and does not incur during the Base Year.
Furthermore, notwithstanding anything to the contrary contained in this Lease,
the amount of that certain portion of Expenses attributable to any taxes
(collectively, the "Tax Expenses") for the Base Year (collectively, "Base
Taxes") shall be calculated exclusive of any reduction achieved pursuant to the
California Revenue and Taxation Code, Section 51 ("Proposition 8 reduction"). If
in any Subsequent Year (the "Adjustment Year") the amount of Tax Expenses
decreases below the amount of Base Taxes as a result of a Proposition 8
reduction, then for purposes of all ensuing Subsequent Years, including the
Adjustment Year, the Base taxes shall be decreased by an amount equal to the
decrease in Tax Expenses in the Adjustment Year. Conversely, if the Tax Expenses
thereafter decrease by a lesser amount during any Subsequent Year after the
Adjustment Year (the "Readjustment Year") as a result of Landlord's failure to
secure a Proposition 8 reduction which is greater than or equal to the
Proposition 8 reduction secured during the Adjustment Year, then for purposes of
all Subsequent Years, including the Readjustment Year, the Base Taxes shall only
be decreased by an amount equal to the decrease in Tax Expenses during such
Readjustment Year.
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<PAGE> 19
6.2.2. The term "Expenses" means all expenses, costs and fees paid
or incurred by Landlord during any calendar year during the term hereof in
connection with or attributable to the Building and Common Area (as described
hereinafter), including any parking facilities therein (reduced by the amount of
any rebates received by Landlord), for:
6.2.2.1. Electricity, water, gas, sewer, and all other
utility services to or for the Building or Common Area, including any utility
taxes, fees, charges or other similar impositions paid or incurred by Landlord
in connection therewith; and
6.2.2.2. Operation, maintenance, security services,
replacement for normal wear and tear, repair, restriping or resurfacing of
paving (provided that resurfacing of paved areas, as distinguished from
restriping, shall not occur more than once every five years as to the entire
Project or more than once each year as to more than twenty percent (20%) of the
paved areas of the Project), management (including costs of on-site offices and
personnel and a reasonable home-office overhead allocation), insurance
(including public liability and property damage, rent continuation, boiler and
machinery and extended coverage insurance and earthquake insurance, provided
that if Landlord materially changes the types or amounts or deductibles of
insurance coverage during any Subsequent Year, and such changes are not dictated
solely by requirements of lenders or prudent property management practices,
Landlord's Base Year Costs shall be increased to reflect the premium(s) Landlord
would have paid if such insurance had been in effect for the Base Year), and
cleaning of the Building and Common Area and all furnishings, fixtures and
equipment therein, but excluding the costs of special services rendered to
tenants (including Tenant) for which a separate charge is made, costs of leasing
and preparing space for new tenants in the Building, or costs borne solely by
Tenant under the Lease. The term "Expenses" includes the annual amortization of
costs which are capital in nature (including financing at the then prevailing
rate, if any) of any equipment, device or improvement which is required by a law
enacted after the date of this Lease or reasonably incurred as a labor saving
measure or to reduce Expenses (but only to the extent of the reasonably
anticipated reduction in Expenses) with respect to the Building and Common Area
where such costs are amortized over the useful life thereof and which do not
inure primarily to the benefit of any particular tenant; and
6.2.2.3. All real property taxes and personal property
taxes, licenses, charges and assessments which are levied, assessed, imposed or
collected by any governmental authority or improvement or assessment district
during any calendar year with respect to the Building or Common Area and the
land on which the same is located, and any improvements, fixtures, equipment and
other property of Landlord, real or personal, located in the Project and used in
connection with the operation or maintenance of the Building or Common Area
(computed on a cash basis or as if paid in permitted installments regardless of
whether actually so paid), as well as any tax which shall be levied or assessed
in addition to or in lieu of such taxes (it being acknowledged that because of
the passage of laws which limit increases in real property taxes, government
agencies may impose fees, charges, assessments or other levies in connection
with services previously furnished without charge or at a lesser charge and
which were previously paid for in whole or in part, directly or indirectly, by
real property taxes), any gross profits, rent or excise tax or other similar
tax, and any costs or expenses of contesting any such taxes, licenses, charges
or assessments. Notwithstanding anything to the contrary set forth in the Lease,
Expenses 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) taxes
on tenant improvements in any space in the Building or the Project based tip on
an assessed level in excess of the building standard (and, for purposes of this
Section 6.2.2.3 only, "building standard" shall mean an amount equal to $20.00
per usable square foot, increased on a cumulative compounded basis by five
percent (5%) per annum), (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 taxes when due, (iv) any real
estate taxes directly payable by Tenant or any other tenant in the Building
(other than as reimbursement of Expenses) under the applicable provisions in
their respective leases, and (v) any entitlement fees, exactions or other costs
and expenses required as a condition to any development or voluntary
redevelopment of the Project (as distinguished from repair, reconstruction or
re-tenanting of existing improvements), including any initial payments or costs
made in connection with any child-care facilities, traffic demand management
programs, transportation impact mitigation fees, water and sewage conservation,
recycling, housing replacement and linkage fees, special assessment districts,
infrastructure and transportation assessments, art programs, or parking
requirements and programs. Nothing in the preceding clause (v) shall be
construed as limiting Landlord's right, as provided elsewhere in this Lease, to
include in Expenses cost items (whether similar or dissimilar to those listed in
clause (v)) which Landlord must incur to comply with applicable legal
requirements which apply without regard to the initial development or any
voluntary redevelopment of the Project.
6.2.3. Notwithstanding anything to the contrary in this Lease,
during the Initial Term only, Expenses shall exclude any increase in real
property taxes attributable to a "change in ownership" of the
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Building, as defined in Title 18 of California Code of Regulations Section 462.
Furthermore, Expenses shall not include the following except to the extent
specifically permitted by a specific exception to the following:
6.2.3.1. Any payments under a ground lease or master lease
relating to the Project.
6.2.3.2. Costs of items which, under generally accepted
accounting principles consistently applied, are considered capital expenditures,
except for such capital expenditures as are permitted under Section 6.2.2.2
above.
6.2.3.3. Rentals for items (except when needed in
connection with normal repairs and maintenance of permanent systems) which if
purchased, rather than rented, would constitute a capital improvement which is
specifically excluded in Subsection 6.2.3.2 above (excluding, however, equipment
not affixed to the Building which is used in providing janitorial or similar
services).
6.2.3.4. Costs incurred by Landlord for the repair of
damage to the Building or any other part of the Project to the extent such costs
exceed, as to Tenant's Share, $25,000 for any one incident.
6.2.3.5. Costs, including permit, license and inspection
costs, incurred with respect to the installation of tenant or other occupant
improvements made for tenant or other occupants in the Building or incurred in
renovating or otherwise improving, decorating, painting or redecorating vacant
space for tenants or other occupants of the Building, except that the foregoing
shall not exclude any costs of repair, replacement or renovation of Common Area
where such costs otherwise are includable in Expenses.
6.2.3.6. 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 Building.
6.2.3.7. 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 Building.
6.2.3.8. Costs incurred by Landlord due to the violation by
Landlord or any tenant of the terms and conditions of any lease or occupancy
agreement in the Project.
6.2.3.9. Interest, principal, points and fees on any debts
or amortization on any mortgage or mortgages or any other debt instrument
encumbering the Building or the Project, except that the foregoing shall not
operate to exclude from Expenses interest, principal or amortization of capital
expenditures authorized by this Lease.
6.2.3.10. Except for expenses in making repairs or keeping
permanent systems in operation while repairs are being made, rentals and other
related expenses incurred in leasing air conditioning systems, elevators or
other equipment ordinarily considered to be of a capital nature, except
equipment not affixed to the Building which is used in providing janitorial or
similar services.
6.2.3.11. Advertising and promotional expenditures.
6.2.3.12. Costs incurred in connection with upgrading the
Building to comply with laws in effect prior to the Commencement Data.
6.2.3.13. Tax penalties incurred as a result of Landlord's
negligence, inability to or unwillingness to make payments or to file any return
when due.
6.2.3.14. Costs arising from Landlord's charitable or
political contributions.
6.2.3.15. Costs for acquisition of sculpture, paintings or
other objects of art.
6.2.3.16. Costs incurred in connection with the original
development or construction of the Building or in connection with any major
change in the Building, such as adding or deleting floors.
6.2.3.17. Costs in excess of $25,000 per year of correcting
defects in or inadequacies of the design or construction of the Building.
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6.2.3.18. Expenses resulting from the active negligence of
the Landlord, its agents, servants or employees or another tenant, except that
the foregoing shall not exclude from Expenses any premium increases for
insurance Landlord maintains.
6.2.3.19. Legal fees, space planners' fees, real estate
brokers, leasing commissions, and advertising expenses incurred in connection
with the leasing of the Building.
6.2.3.20. Any bad debt loss, rent toss, or reserves for bad
debts or rent loss.
6.2.3.21. Costs associated with the operation of the
business of the partnership or entity which constitutes the Landlord, as
distinguished from the costs of operation of the Building, including partnership
accounting and legal matters, costs of defending any lawsuits with any
mortgagees (except as the actions of Tenant or any other tenant may be in
issue), costs of selling, syndicating, financing, mortgaging or hypothecating
any of Landlord's interest in the Building.
6.2.3.22. Costs (including attorneys' fees and costs) in
connection with potential or actual claims, disputes, litigation or arbitration
pertaining to Landlord and/or the Building and/or the Project.
6.2.3.23. The wages and benefits of any employee who does
not devote substantially all of his or her time to the Building unless such
wages and benefits are prorated to reflect time spent on operating and managing
the Building vis-a-vis time spent on other matters.
6.2.3.24. Fines and penalties; provided; however, that
fines or penalties for violation of legal requirements may be included in
Expenses where Landlord reasonably determines that it is more economical to pay
such fine or penalty while Landlord contests in good faith the interpretation or
application of the particular legal requirement.
6.2.3.25. Costs in connection with any portion of the
Building devoted to retail operations, unless the space involved is included in
the 62,940 rentable square feet of the Building.
6.2.3.26. Costs arising from the presence of hazardous
materials or substances in or about the Building or the site including, but not
limited to, hazardous substances in the ground water or soil.
6.2.3.27. Costs of goods or services (including any
overhead and profit increment) furnished by Landlord or subsidiaries, partners
or affiliates of Landlord to the extent the same exceed the costs of such goods
or services rendered by unaffiliated third parties on a competitive basis, in
comparable buildings.
6.2.3.28. Landlord's general overhead and administrative
expenses other than costs of on-site management.
6.2.3.29. The cost of any item reimbursable by insurance or
condemnation proceeds or which would be reimbursable from insurance required to
be maintained by Landlord under this Lease (or similar insurance on parts of the
Project other than the Building).
6.2.3.30. Salaries of officers, executives or other
employees of Landlord, any affiliate of Landlord, or partners or affiliates of
such partners or affiliates, other than any personnel engaged in the management,
operation, maintenance, and repair of the Building (but not leasing or
marketing) and either (i) working in the Building management office, or (ii)
where such individuals hold a position which is generally considered to be
higher in rank than the position of the manager of the Building or the chief
engineer of the Building, they are to have a direct involvement with the Project
on a daily basis and their salaries are to be equitably allocated based on time
devoted to the Project.
6.2.3.31. All items and services for which Tenant or any
other tenant in the Project is required to reimburse Landlord (other than
through Tenant's Share or any other tenant's share of Expenses).
6.2.3.32. Advertising and promotional expenditures,
including but not limited to tenant newsletters (except that the cost of one
annual newsletter may be included in Expenses) and Project or Building
promotional gifts, events or parties for existing or future occupants, and the
costs of signs (other than the Building directory and the repair or replacement
of existing Building and Common Area signs) in or on the Project identifying the
owner of the Building or any other building in the Project or other tenants'
signs and any costs related to the celebration or acknowledgment of holidays.
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6.2.3.33. Electric power or other utility costs for which
any tenant directly contracts with the local public service company.
6.2.3.34. The cost of any work or services performed for
any tenant (including Tenant) as such tenant's cost.
6.2.3.35. The cost of installing, operating and maintaining
any specialty service, observatory, broadcasting facilities, luncheon club,
museum, athletic or recreational club or child care facility.
6.2.3.36. The cost of furnishing and installing
non-Building standard replacement bulbs and ballasts in tenant spaces.
6.2.3.37. The cost of any parties, ceremonies or other
events for tenants or third parties which are not tenants of the Building,
whether conducted in the Building, Project or in any other location.
6.2.3.38. Reserves of any kind, including but not limited
to replacement reserves, and reserves for bad debts or lost rent or any similar
charge not involving the payment of money to third parties.
6.2.3.39. Rent (or imputed rent) for up to a 5,000 rentable
square foot management offices for the Project at a rental rate then being
charged for comparable premises in the Project, but in no event shall such
management office rent be increased by more than five percent (5%) per annum, on
a cumulative compounded basis, during the term of this Lease.
6.2.3.40. All assessments and premiums shall be paid by
Landlord in the maximum number of installments permitted by law and shall not be
included as Expenses except in the year in which the assessment or premium
installment is actually paid.
6.2.3.41. Payment of any management fee, whether paid to
Landlord or an outside managing agent, in excess of the product of (i) three
percent (3%) and (ii) gross revenues for the Building (adjusted in accordance
with Section 6.5.2 below); provided, however, that Landlord may increase the
percentage in the preceding clause (i) in any Subsequent Year so long as
Landlord also recalculates Landlord's Base Year Costs of management fees at the
same increased percentage.
6.2.3.42. Any costs expressly excluded from Expenses
elsewhere in this Lease.
6.2.3.43. Any costs, fees, dues, contributions or similar
expenses for industry associations or similar organizations: provided, however,
that Expenses may include the cost (exclusive of travel or lodging) of
attendance by an employee or agent of Landlord at three BOMA, IREM or similar
seminars in any given year.
6.2.3.44. The entertainment expenses and travel expenses of
Landlord, its employees, agents, partners and affiliates.
6.2.3.45. Costs of traffic studies, environmental impact
reports, transportation system management plans and reports, and traffic
mitigation measures which are applicable due to the development or redevelopment
of the Project (as distinguished from the repair, reconstruction or re-tenanting
of existing improvements in the Project, as permitted to be included in Expenses
under this Section 6.2.
6.2.3.46 Any costs recovered by Landlord to the extent the
same would unnecessarily duplicate an item of cost recovery contemplated by this
Lease.
6.2.3.47 Any profit made by Landlord in connection with
Landlord's collections of Operating Costs.
6.2.3.48 Any cost for which Landlord has been reimbursed or
receives a credit, refund or discount, provided if Landlord receives the same in
connection with any costs or expenditures previously included in Expenses for a
given year, Landlord shall immediately reimburse Tenant for any overpayment for
such year or, if such overpayment applies to the Base Year, Landlord shall make
a corresponding reduction in Landlord's Base Year Costs.
6.2.4. The term "Common Area" means that portion of the Project
other than the Building and other buildings for lease to tenants which is from
time to time designated and improved for nonexclusive,
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common use by more than one person. The general location of the Common Area is
shown on Exhibit A-1 attached hereto and incorporated by reference. The Common
Area includes parking facilities in the Project.
Any cost or expense included in Expenses which is attributable to
Common Area shall be prorated by Landlord to the Building based on the
proportion which the total rentable area of the Building bears to the total
rentable area of the Project from time to time devoted to office use, or as to
retail areas of the Project by such other fair and reasonable method of
allocation based on use or benefit as Landlord may determine, except that, with
regard to taxes, Landlord may use such allocation of taxes among the various
parcels in the Project as may have been used by the taxing authority.
6.2.5. The term "Base Year" means the calendar year specified at
Section 1.5.
6.2.6. The term "Subsequent Year" means the first full calendar
year following the Base Year and each calendar year, or part thereof, thereafter
occurring during the term of this Lease.
6.2.7. "Tenant's Share" is hereby agreed by Landlord and Tenant to
be the percentage set forth in Section 1.5 hereof.
6.3. Payment of Estimated Expenses. Tenant shall pay estimated Expenses
to Landlord as follows:
6.3.1. Landlord shall submit to Tenant, on or before March 31 of
the first Subsequent Year or as soon thereafter as Landlord has sufficient data,
a reasonably detailed statement showing the Expenses for the Base Year.
6.3.2. For each Subsequent Year, Landlord shall submit to Tenant,
prior to January 1 of such Subsequent Year or as soon thereafter as practicable,
a reasonably detailed statement showing the estimated Expenses for such
Subsequent Year, itemized on a line-item basis. The determination of estimated
Expenses hereunder shall be made by Landlord based upon Landlord's experience
with actual costs and projections. Tenant shall pay monthly to Landlord an
amount equal to the excess of (a) the sum of the total annual estimated Expenses
multiplied by Tenant's Share minus (b) Landlord's Base Year Costs, over (c)
twelve (12) months. If Landlord does not submit said statement to Tenant prior
to January 1 of any such Subsequent Year, Tenant shall continue to pay its share
of estimated Expenses at the then existing rate until such statement is
submitted, and, thereafter, at the monthly Rent payment date next following the
submittal of such statement, shall pay its share of estimated Expenses based on
the rate set forth in such statement together with any amounts based on such
rate which may have theretofore accrued from January 1 of such Subsequent Year.
Landlord may revise such estimated Expenses at the end of any calendar quarter,
and Tenant shall pay Tenant's Share of such revised estimated Expenses after
notice thereof as herein provided.
6.4. Payment of Actual Expenses. Actual Expenses shall be reconciled
against payments of estimated Expenses as follows:
6.4.1. On or before March 31 of the second Subsequent Year and
each Subsequent Year thereafter, or as soon thereafter as Landlord has
sufficient data (which data Landlord shall diligently gather), Landlord shall
submit to Tenant a reasonably detailed statement showing the actual Expenses
paid or incurred by Landlord during the previous calendar year. If Tenant's
Share of such actual Expenses is less than the amount of estimated Expenses for
such previous year theretofore paid by Tenant, then Landlord shall credit the
amount of such difference against the next installment of Basic Rent which may
thereafter be due from Tenant (or, at the end of the Lease Term, Landlord may
credit such difference against any amounts then owed to Landlord by Tenant and
refund the excess (if any) to Tenant); provided, however, that in no event shall
Tenant receive a credit as provided herein for any amount calculated to be less
than Landlord's Base Year Costs. If Tenant's Share of such actual Expenses is
more than the amount of the estimated Expenses for such previous year
theretofore paid by Tenant, then Tenant shall, within thirty (30) days following
the submittal of such statement to Tenant, pay to Landlord the full amount of
such difference.
6.4.2. The reconciliation of the Expenses paid by Tenant for the
calendar year in which this Lease terminates shall be made upon Landlord's
submittal to Tenant of the statement of actual Expenses for such calendar year.
The estimated and actual Expenses for such calendar year shall be prorated based
on the actual number of days in such calendar year that this Lease was in
effect, based on a 365-day year, and shall be compared. If pursuant to such
comparison it is determined that there has been an underpayment or an
overpayment by Tenant for such calendar year, Landlord shall refund the
overpayment to Tenant, or Tenant shall pay the amount calculated as owing to
Landlord, as the case may be, within thirty (30) days after the submittal of the
statement by Landlord. This provision shall survive the expiration or
termination of the Lease.
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If Landlord deems it advisable, Landlord may submit partial year statements
pursuant to this Section 6.4.2 in order to cause an earlier reconciliation of
Expenses for the calendar year in which this Lease terminates.
6.5. Other Expense Provisions.
6.5.1. Notwithstanding any provision of this Article 6 to the
contrary, if at any time during the term of this Lease any tenant, pursuant to
an express provision in its lease and with Landlord's approval, contracts for
certain Building or Common Area services to be provided directly to it and at
its expense, which services would normally be furnished by Landlord (e.g.,
janitorial, maintenance, utilities, etc.), then Landlord may make an equitable
adjustment in calculating Tenant's Share of Expenses to the end that the cost of
the remaining services provided by Landlord are shared proportionately by all
tenants receiving such services.
6.5.2. Notwithstanding anything to the contrary set forth herein,
if during the Base Year or any Subsequent Year less than ninety-five percent
(95%) of the rentable area in the Building is leased and occupied during the
entire year, all "Variable Components," as that term is defined in this Section
6.5.2, of Expenses for such year shall be grossed-up, employing sound accounting
and property management principles, to the amount such Variable Components would
have been in the event the Building had been ninety-five percent (95%) leased
and occupied during the entire year and the adjusted amount of the Variable
Components shall be used in determining Expenses for such year. "Variable
Components" shall be those components that vary based upon occupancy levels and
shall specifically exclude "Fixed Costs," as defined herein. For this purpose,
"Fixed Costs" means (i) all real property taxes and other taxes, charges and
assessments described in Section 6.2.2.3, (ii) premiums incurred by Landlord for
liability insurance and property damage insurance relating to Landlord's
ownership and/or operation of the Project and/or the Building, (iii) landscaping
costs relating to the Project and/or the Building, (iv) costs, including
janitorial and utility costs, relating to portions of the Common Areas located
outside the Building and the portions of the Common Areas located within the
Building, which Common Areas are not located on floors of the Building above the
lobby level of the Building, (v) overhead and administrative fees and expenses
(but not management fees, which vary based on occupancy), (vi) Building
management office rent, and (vii) exterior window washing costs.
6.5.3. The computation of Expenses pursuant to this Article 6 is
intended to constitute a formula for an agreed sharing of costs by tenants, and
may or may not constitute an exact reimbursement to Landlord for costs paid or
incurred by Landlord, and for Landlord's administration.
6.5.4. Any delay or failure of Landlord in computing or billing
for Expenses shall not constitute a waiver of, or in any way impair, the
obligation of Tenant to pay Expenses hereunder. However, Tenant shall not be
charged interest on unpaid Expenses which have accrued during such time that
Landlord has failed to submit a statement for such Expenses. Furthermore, with
the exception of real property taxes, Landlord shall not bill Tenant for
Expenses (other than real property taxes) more than one (1) year after
Landlord's delivery of the statement called for under Section 6.4.1 above.
6.5.5. Tenant's Right of Audit. Tenant shall have the right to
audit Landlord's records in accordance with the provisions of this Section
6.5.5.
6.5.5.1. Tenant shall give Landlord no less than thirty
(30) days' prior written notice of Tenant's intent to audit ("Audit Notice"),
which Audit Notice must be given to Landlord within one (1) year following the
date of Tenant's receipt of the statement called for under Section 6.4.1 which
Tenant potentially wishes to dispute (the "Disputed Statement"). Tenant may
conduct an audit no more than once in any calendar year. If as a result of
Tenant's audit, Tenant believes the Disputed Statement is incorrect, Tenant
shall give Landlord written notice of the alleged discrepancies. If Landlord and
Tenant are unable to resolve their difference within sixty (60) days, the matter
shall be submitted for determination pursuant to Section 6.5.5.2 below.
6.5.5.2. If the parties are unable to timely resolve a
dispute hereunder, the records relating to the Disputed Statement shall be
audited by an independent certified public accountant selected by Landlord and
approved by Tenant, such approval not to be unreasonably withheld or delayed.
The audit shall be conducted at the office where such records are maintained
during regular business hours. The auditor shall deliver a certified copy of the
audit to Landlord concurrently with the delivery of such audit to Tenant. No
records or copies of records in any form may be removed from the office where
such records are maintained.
6.5.5.3. Any audit conducted under Section 6.5.5.2 shall be
binding and conclusive on the parties. If such audit reveals that Landlord has
overcharged Tenant, then Landlord shall reimburse Tenant within thirty (30) days
after the later to occur of (a) Landlord's receipt of Tenant's written demand
therefor, or (b) Landlord's receipt of a certified auditor's report. If such
audit discloses that Tenant was
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undercharged, then notwithstanding any contrary provision contained in this
Article 6, Tenant shall pay to Landlord the difference within thirty (30) days
after written demand therefor from Landlord.
6.5.5.4. Tenant shall pay the costs and expenses of such
audit; however, if the audit shall disclose that the difference in Expenses is
in excess of three percent (3%) (favoring Landlord), and provided and so long as
Landlord has not disputed the auditor's report, then Landlord shall pay the
reasonable, usual and customary costs of such audit (exclusive, however, of
travel and lodging costs and attorneys' fees), up to a maximum of $3,000).
6.5.5.5. Tenant shall not be permitted to conduct an audit
at any time Tenant is in default of this Lease; provided, however, that Tenant's
audit rights shall not be suspended in case of only a material non-monetary
default which Tenant is then contesting by the prosecution or defense of
appropriate legal proceedings.
7. TAXES PAYABLE SOLELY BY TENANT
7.1. In addition to the Rental and Expenses to be paid by Tenant,
Tenant shall pay before delinquency and without notice or demand by Landlord any
and all taxes levied or assessed on and which become payable by Tenant during
the term of this Lease (excluding, however, state and federal personal or
corporate income taxes measured by the income of Landlord from all sources,
capital stock taxes, and estate and inheritance taxes), whether or not now
customary or within the contemplation of the parties hereto, which are based
upon, measured by or otherwise calculated with respect to: (i) the gross or net
Rent payable under this Lease, including, without limitation, any gross receipts
tax or any other gross income tax or excise tax levied by any taxing authority
with respect to the receipt of the Rental hereunder; (ii) the value of Tenant's
equipment, furniture, fixtures or other personal property located in the
Premises; (iii) the possession, lease, operation, management, maintenance,
alteration, repair, use or occupancy by Tenant of the Premises or any portion
thereof; (iv) the value of any improvements, alterations or additions made in or
to the Premises by or on behalf of Tenant, except for Building standard
improvements (which, for purposes of this Section 7.1 only, are improvements not
exceeding $20.00 per usable square foot) or (v) this transaction or any recorded
document to which Tenant is a party. Real property taxes on improvements which
are installed as part of Landlord's Work shall be deemed to be included in the
taxes described in Section 6.2.2.3 above, as to which Tenant shall pay Tenant's
Share. If it is not lawful for Tenant to reimburse Landlord for any such taxes
paid or incurred by Landlord, the Rent shall be revised so as to net Landlord
the same net Rent after imposition of such taxes as would have been payable
prior to the imposition of such taxes.
8. LATE PAYMENTS
8.1. If Tenant fails to pay Landlord when due any Rent, Expenses or
other sums owing to Landlord pursuant to the terms of this Lease, said late
payment shall bear interest at the Agreed Rate as herein provided and for each
such late payment that is not paid within five (5) days after the date the same
was due, Tenant shall pay to Landlord a service charge equal to five percent
(5%) of the overdue amount; provided, however, that on no more than one (1)
occasion during any twelve (12) month period, Landlord shall give Tenant a
notice of delinquency and a five (5) day grace period thereafter before imposing
such service charge. Tenant acknowledges and agrees that such late payment by
Tenant will cause Landlord to incur costs and expenses not contemplated by this
Lease, the exact amounts of which will be extremely difficult to ascertain. and
that such service charge represents a fair estimate of the costs and expenses
which Landlord would incur by reason of Tenant's late payment. Tenant further
agrees that such service charge shall neither constitute a waiver of Tenant's
default with respect to such overdue amount nor prevent Landlord from exercising
any other right or remedy available to Landlord.
9. INTENTIONALLY OMITTED
10. INTENTIONALLY OMITTED
11. USE
11.1. The Premises shall be used and occupied by Tenant for general
office purposes consistent with a first-class office building (and uses
incidental thereto as shown on the Plans to be approved by Landlord pursuant to
Exhibit C) and for no other purpose without the prior written consent of
Landlord, which Landlord may withhold in its sole discretion. Tenant
acknowledges that neither Landlord nor any agent of Landlord has made any
representation or warranty with respect to the Premises, the Building, or the
Project, with respect to the suitability thereof for the conduct of Tenant's
business. Tenant shall not do or permit anything to be done in or about the
Premises nor bring or keep anything therein which will in any way increase the
existing rate of
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or affect or cause a cancellation of any standard form fire or other policy of
insurance covering the Building, Common Area, or the Premises or any of its
contents, nor shall Tenant sell or permit to be kept, used or sold in or about
the Premises any article which may be prohibited by a standard form policy of
insurance; provided, however, that Landlord's approval of Tenant's Plans
pursuant to Exhibit C shall constitute Landlord's acknowledgment that Tenant's
office use as contemplated by the Plans will not affect the rate of Landlord's
insurance or be prohibited thereunder. Tenant shall promptly upon demand
reimburse Landlord for any additional premium charged for any such insurance by
reason of Tenant's failure to comply with the provisions of this Article 11.
Tenant agrees that it will use the Premises in such manner as not to interfere
with the rights of other tenants of the Building or Common Area. Tenant shall
neither use nor allow the Premises, Building or Common Area to be used for any
unlawful purpose, nor cause, maintain or permit any nuisance or waste in, on or
about any portion of the Project. Tenant will not place a load upon any floor
exceeding the floor load which such floor was designed to carry, and Landlord
reserves the right to prescribe the location of any safe or other heavy
equipment in the Premises. Tenant shall not use or allow anything to be done in
or about the Premises or the Project which will in any way conflict with any
law, ordinance or governmental regulation or requirement of any board of fire
underwriters or any duly constituted public authority now in force or hereafter
enacted or promulgated affecting the use or occupancy of the Premises, and shall
promptly comply with all such laws or requirements at its sole cost and expense.
The judgment of any court of competent jurisdiction or any admission by Tenant
that Tenant has violated any such law, statute, ordinance, rule, regulation or
requirement shall be conclusive of such fact as between Landlord and Tenant.
12. SERVICE AND UTILITIES
12.1. Landlord's Obligations. Landlord shall as a part of Expenses make
available to the Premises during the Building's normal business hours as set
forth in Rule 17 of the Rules and Regulations described in Article 36 hereof,
air conditioning, heating and ventilation as may be required for the comfortable
use of the Premises (or as otherwise specified in the Plans approved by Landlord
pursuant to Exhibit C), as well as elevator service, electric current for
lighting and power at up to five (5) kilowatt/hours per usable square foot of
the Premises' demand load on a continuous, annualized basis, and water for
lavatory and drinking purposes. "Building Standard" fixtures and equipment are
as described in Schedule A to Exhibit C attached hereto or, in absence thereof,
as installed in the typical common corridor. Landlord shall as a part of
Expenses replace Building Standard light bulbs, tubes and ballasts which need
replacing due to normal use. Landlord shall also as a part of Expenses provide,
twenty-four (24) hours per day, seven (7) days per week, throughout the Term,
including the period of occupancy by Tenant prior to the Commencement Date,
security for the Project, including the Building and the parking facilities in
accordance with Landlord's existing security services. Landlord's security
service shall provide Tenant, upon Tenant's request and subject to availability
(which Landlord need not guarantee) with an escort by Landlord's security
personnel to the vehicles of Tenant's employees located in the parking
facilities. Landlord shall also as a part of Expenses maintain and keep lighted
the common stairs, entries and toilet rooms in the Building and shall provide
trash removal and janitorial service five (5) days per week, excluding weekends
and the holidays listed in Rule 17 of the Rules and Regulations and window
washing at least twice per year as to the exterior and once per year as to the
interior (but excluding any Tenant-installed glass) in accordance with the
janitorial specifications attached as Exhibit H to this Lease. Except as
expressly provided in this Lease, Landlord shall not be in default hereunder or
liable for any damages directly or indirectly resulting from, nor shall the Rent
be abated or shall there be deemed a constructive or other eviction of Tenant by
reason of (i) the installation, use or interruption of use of any equipment in
connection with the furnishing of any of the foregoing utilities and services,
(ii) failure to furnish, or delay in furnishing, any such utilities or services
when such failure or delay is caused by acts of God, acts of government, labor
disturbances of any kind, or other conditions beyond the reasonable control of
Landlord, or by the making of repairs or improvements to the Premises or any
part of the Project, or (iii) governmental limitation, curtailment, rationing or
restriction on use of water, electricity or any other service or utility
whatsoever serving the Premises, Building or Common Area. Landlord shall be
entitled to cooperate with the energy conservation efforts of governmental
agencies or utility suppliers. The failure of Landlord to provide such services
if consistent with the foregoing shall not constitute a constructive or other
eviction of Tenant.
12.2. After-Hours Charges. During non-business hours Landlord shall as
a part of Expenses keep the public areas of the Building lighted and shall
provide elevator service with at least one (1) elevator, but shall not be
obligated to furnish heating, ventilation, lighting and/or air conditioning to
the Premises. If Tenant requires heating, ventilation, lighting and/or air
conditioning during non-business hours Tenant shall give Landlord at least
twenty-four (24) hours prior notice of such requirement or shall follow such
other procedure for activating the building energy management system as Landlord
may advise Tenant, and Tenant shall pay Landlord the "After-Hours Charges" for
such extra service at the rate set forth in Section 1.6 hereof. Such rates are
subject to increase from time to time based on the amount of increases in
Landlord's costs associated with providing such extra services. All payment
required for After-Hours Charges shall be deemed to be Additional Rent and
Landlord shall have the same remedies for a default in payment thereof as for a
default in payment
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of Rent. Landlord shall endeavor to accommodate Tenant's request for
non-business hours heating, ventilation, lighting or air conditioning made upon
less than twenty-four (24) hours notice.
12.3. Tenant's Services.
12.3.1. Tenant shall pay, prior to delinquency, for all telephone
charges and all other materials and services not expressly required to be paid
by Landlord, which may be furnished to or used in, on or about the Premises
during the term of this Lease. Tenant shall also pay, as Additional Rent, all
charges and fees required to be paid by Tenant by the Rules and Regulations
described in Article 36 of this Lease.
12.3.2. Tenant shall have the right, at Tenant's sole expense, to
install, maintain and replace a private heating, ventilation and air
conditioning system or systems (the "Tenant HVAC System") separate from the
Building HVAC system, in Tenant's computer rooms, user rooms and other areas
contained wholly within the Premises, provided that such Tenant HVAC System does
not materially interfere with the operation, maintenance, or replacement of the
Building HVAC system.
12.3.3. Tenant may, at its own expense, install its own security
system ("Tenant's Security") in the Premises; provided, however, that Tenant
shall coordinate the installation and operation of Tenant's Security with
Landlord to assure that Tenant's Security is compatible with Landlord's
security, and to the extent that Tenant's Security is not compatible with
Landlord's security, Tenant shall not be entitled to install or operate it.
Tenant shall be solely responsible for the monitoring and operation of Tenant's
Security system. Tenant shall have the right to refuse admission of persons to
the Premises, except for Landlord's representatives in the event of an emergency
or pursuant to Landlord's entry right set forth in this Lease.
12.4. Excess Utility Usage. Except as set forth in the Plans, Tenant
will not without the prior written consent of Landlord (which consent shall not
be unreasonably withheld, delayed or conditioned) use any apparatus or device in
the Premises which will materially increase the amount of cooling or ventilation
or electricity or water usually furnished or supplied for use of the Premises as
general office space; nor shall Tenant connect with electric current (except
through existing electrical outlets in the Premises) or water pipes, any
apparatus or device for the purpose of using electrical current or water, except
as may be provided in the Construction Provisions. Landlord shall make available
to the Premises initially demised by this Lease electric current for lighting
and power at up to eight (8) kilowatt/hours per usable square foot of the
Premises per year. If Tenant uses electricity at a rate in excess of five (5)
kilowatt/hours per usable square foot of the Premises per year, the cost to
Landlord of any such excess use of utility service by Tenant (without any profit
or mark-up) shall be paid by Tenant based on Landlord's reasonable estimates and
costs. If Tenant requires or uses ventilation, cooling, water or electric
current or any other resource in excess of that usually furnished or supplied
for use of the Premises as general office space, Landlord may cause a special
meter or other measuring device to be installed in or about the Premises to
measure the amount of water, electric current or other resource consumed by
Tenant. The cost of any such meter, and of the installation, maintenance and
repair thereof, shall be paid for by Tenant, and Tenant agrees to pay Landlord
promptly upon demand for all such water, electric current or other resource, as
shown by said meter, at the rates charged by the local public utility or other
supplier furnishing the same, plus any additional expense incurred by Landlord
in keeping account of the foregoing and administering the same. If any lights,
machines or equipment (including but not limited to computers) are used by
Tenant in the Premises which materially affect the temperature or otherwise
maintained by the heating, ventilation or air conditioning system, or generate
substantially more heat in the Premises than would be generated by Building
Standard lights or usual fractional horsepower office equipment, Landlord shall
have the right to install any machinery and equipment which Landlord deems
necessary to restore the temperature balance in any affected part of the
Building, including but not limited to modifications to the Building Standard
air conditioning equipment, and the cost thereof including the cost of
installation and any additional cost of operation and maintenance occasioned
thereby shall be paid by Tenant to Landlord upon demand. Any sums payable under
this Section 12.4 shall be considered Additional Rent, and Landlord shall have
the same remedies for a default in payment of such sum as for a default in the
payment of Rent.
12.5. When Tenant is required to pay Landlord for any service or
utility not provided as part of Expenses, Tenant shall pay Landlord's "Actual
Cost." "Actual Cost" shall be the actual costs paid or incurred by Landlord
(including administrative costs and profit margins to the same extent, on a
percentage basis, as are charged by Landlord as of the date of this Lease),
unless such actual costs paid or incurred cannot be readily ascertained, in
which event "Actual Cost" shall be the amount reasonably estimated by Landlord,
including, when applicable, depreciation pertaining to increased utilization of
certain equipment. Upon written request by Tenant from time to time, Landlord
shall, within ten (10) business days thereafter, disclose to Tenant in writing
the basis for any such estimate. In the event that such disclosure demonstrates
that Landlord's estimate of its Actual Cost was unreasonably calculated, then
Actual Cost shall be appropriately adjusted. In the case of any increase
resulting from such adjustment, Tenant shall pay Landlord the difference within
ten (10) days
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of Landlord's demand therefor. In the case of a decrease, Landlord shall pay to
Tenant the difference within ten (10) days of Tenant's demand therefor. In the
event that more than one tenant orders any extra service or utility, if any cost
item is applicable to more than one tenant, such cost shall be apportioned among
such tenants in accordance with the ratios of the rentable square footages of
their respective premises. Such Actual Cost, to the extent reimbursed to
Landlord by Tenant and/or other tenants, shall be netted out of Expenses to the
extent previously charged to Expenses or to the extent that the work was
performed by individuals whose salaries or charge for services are included in
Expenses.
12.6. Interruption of Services.
12.6.1. Notwithstanding anything to the contrary contained in this
Lease, if Tenant is prevented from using the Premises or any material portion
thereof (the "Affected Area") to conduct its normal business operations and
Tenant does not, in fact, use the Affected Area for a period of three (3)
consecutive business days or more, (i) due to any service (including but not
limited to passenger elevator service, janitorial service, HVAC, electricity or
water) (collectively, the "Essential Services") not being provided to the
Affected Area as required by the terms of this Lease, (ii) because of the
presence, in a form or concentration in violation of applicable law then in
effect, of "Hazardous Materials," as that term is defined in Section 45.6.1
below, regarded as unhealthful under applicable regulations then in effect in or
about the Premises (which Hazardous Materials were not brought onto the Premises
by Tenant or Tenant's employees, agents, licensees, or invitees), or (iii) due
to "Force Majeure," as that term is defined in Section 39.19 below, then Tenant
shall have the rights specified in Section 12.6.2 and, if applicable, Section
12.6.3.
12.6.2. Tenant shall promptly deliver to Landlord notice (the
"Cure Notice") of such condition and if Landlord fails to cure such condition
within two (2) business days after delivery to it of the Cure Notice, then Rent
applicable to the Affected Area (and to the extent parking passes rented by
Tenant pursuant to this Lease correspond to the Affected Area and are not used
by Tenant, then fees for such applicable parking passes shall be abated) from
the date which is three (3) full business days after delivery to Landlord of the
Cure Notice until the date when such failure is cured; provided, however, that
if Tenant has previously paid Rent, including parking fees to Landlord for a
period of time subsequent to the commencement of Tenant's right to abate Rent
hereunder, then Landlord shall, within ten (10) business days following the date
of such abatement, reimburse to Tenant the amount of such excess payments.
12.6.3. If any condition set forth in Section 12.6.1 shall not be
cured within one hundred eighty (180) days after Landlord's receipt of the Cure
Notice, then Tenant, upon written notice to Landlord (the "Services Termination
Notice") after the expiration of such one hundred eighty (180) day period (the
"Termination Cure Period"), may terminate this Lease as to the entire Premises,
which termination shall be deemed effective ten (10) business days after
Landlord's receipt of Tenant's Services Termination Notice unless Landlord cures
the condition giving rise thereto within such ten (10) business day period;
provided, however, that such Termination Cure Period shall be extended for each
day, up to a maximum of ninety (90) days, Landlord is delayed by Force Majeure,
from curing the event which gave rise to the Rent abatement pursuant to Section
12.6.1.
13. ENTRY BY LANDLORD
13.1. Landlord and its authorized representatives shall have the right
to enter the Premises upon reasonable prior notice during normal business hours
and at any time without notice in case of an emergency or to provide routine
janitorial and maintenance services (i) to determine whether the Premises are in
good condition and whether Tenant is complying with its obligations under this
Lease, (ii) to maintain or to make any repair or restoration to the Building
that Landlord has the right or obligation to perform, (iii) to install any
meters or other equipment which Landlord may have the right to install, (iv) to
serve, post or keep posted any notices required or allowed under the provisions
of this Lease, (v) to post "for sale" signs at any time during the term, (vi) to
show the Premises to prospective brokers, agents, buyers, tenants, or persons
interested in an exchange (except that showing of the Premises to prospective
tenants and their brokers shall be limited to the last nine (9) months of the
term), (vii) where necessary for performance of Landlord's maintenance and
repair obligations under this Lease, to shore the foundations, footings, and
walls of the Building and to erect scaffolding and protective barricades around
and about the Building or the Premises, but not so as to prevent entry into the
Premises, and (viii) to do any other act or thing necessary for the safety or
preservation of the Premises or the Building. Landlord shall have the right at
all times to have and retain a key with which to unlock all doors in, upon and
about the Premises excluding Tenant's vaults and safes, and Landlord shall have
the right to use any and all means which Landlord may deem proper to gain entry
in an emergency, and any entry to the Premises obtained by Landlord in
accordance with the foregoing shall not be construed or deemed to be a forcible
or unlawful entry into, or a detainer of, the Premises, or an eviction of Tenant
from the Premises or any portion thereof. Tenant hereby waives any claim for
damages for any inquiry or inconvenience to or
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interference with Tenant's business and any loss of occupancy or quiet enjoyment
of the Premises by reason of Landlord's exercise of its rights of entry in
accordance with this Article 13 (unless Landlord or Landlord's agents or
employees act negligently or wilfully, in which case the foregoing waiver shall
apply only to the extent that the loss, damage or interference is covered by
insurance Tenant maintains or is required by this Lease to maintain), and Tenant
shall not be entitled to an abatement or reduction of Rent or Expenses in
connection therewith, except as otherwise expressly provided in this Lease.
13.2. Notwithstanding any contrary provision of Section 13.1 above,
Tenant shall have the right to install its own locks in those portions of the
Premises which Tenant reasonably requires to be closed to access by persons
other than Tenant, all of which Tenant shall designate in writing to Landlord
upon the Commencement Date and thereafter if there should be any changes thereto
(herein collectively referred to as the "Secured Area"). Tenant shall be fully
responsible for janitorial service to the Secured Area (and the same shall not
be the obligation of Landlord ) comparable to janitorial services provided from
time to time in other premises in the Building. In the event of any emergency in
the Secured Area, Landlord, its agents, employees and contractors (or other
third parties, i.e., police or fire officials) shall have the right to gain
entrance into the Secured Area by any means deemed reasonably necessary under
the circumstances without liability therefor to Tenant (except in the case of
the negligence or willful misconduct by Landlord or its agents or employees, in
which case Landlord's liability shall be limited to any uninsured loss sustained
by Tenant), and Tenant shall be responsible for replacing any doors and
repairing any damage at Tenant's sole cost and expense. Tenant shall also be
solely responsible and shall reimburse Landlord, for any alterations made to
doors and door frames made to accommodate any lock that is not Building Standard
and shall pay to Landlord, upon the expiration or earlier termination of this
Lease, the cost of replacing any such doors and frames.
14. MAINTENANCE AND REPAIR
14.1. Landlord's Obligations. Landlord shall as part of Expenses
maintain or cause to be maintained in good order, condition and repair the
structural and common portions of the Building (including the Building's HVAC,
plumbing, electrical and mechanical systems, the Building's fire and life safety
systems and the Building's roof, slab flooring, exterior and bearing walls and
exterior glass) and all Common Areas in the Project (except to the extent of
damage to any of the foregoing caused by Tenant which shall be repaired by
Landlord at Tenant's expense). Landlord shall not, however, be responsible for
any maintenance or repair of plumbing systems installed within the Premises or
any improvements, alterations or additions constructed by or at the direction of
Tenant. Landlord shall not be liable, and neither Rent nor Expenses shall be
abated, for any failure by Landlord to maintain and repair areas which are being
used in connection with construction or reconstruction of improvements, or for
any failure to make any repairs or perform any maintenance, unless such failure
shall persist for an unreasonable time after written notice of the need thereof
is given to Landlord by Tenant in which case Tenant shall have the rights
specified in Sections 14.1.1 through 14.1.4 below. To the extent the provisions
of this Article 14 are in conflict with any statute nor or hereafter in effect
which would afford Tenant the right to make repairs at Landlord's expense or to
terminate this Lease, the provisions of this Article 14 shall govern.
14.1.1. If Tenant provides notice (the "Repair Notice") to
Landlord of an event or circumstance which pursuant to the terms of this Lease
requires Landlord to repair and/or maintain the Building or the Premises (a
"Required Action"), and Landlord fails to provide the Required Action within the
time period required by this Lease, or a reasonable period of time, if no
specific time period is specified in this Lease, after the receipt of the Repair
Notice (the "Notice Date"), or, in any event, does not commence the Required
Action within ten (10) days after the Notice Date and complete the Required
Action within thirty (30) days after the Notice Date (provided that if the
nature of the Required Action is such that the same cannot reasonably be
completed within a thirty (30) day period, Landlord's time period for completion
shall not be deemed to have expired if Landlord diligently commences such cure
within such period and thereafter diligently proceeds to rectify and complete
the Required Act, as soon as possible), and if Landlord's failure to commence or
complete the Required Action as herein provided materially, adversely affects
Tenant's use and enjoyment of the Premises, then Tenant may deliver a second
notice to Landlord specifying that Tenant intends to take the Required Action
(the "Second Notice"). If Landlord fails to complete the Required Action within
ten (10) days after receipt of the Second Notice, Tenant may then proceed to
take the Required Action as herein provided.
14.1.2. Notwithstanding Section 14.1.1, if there exists an
emergency such that the Premises or a portion thereof are rendered untenantable
and Tenant's personnel are forced to vacate the Premises or such portion thereof
and if Tenant gives Landlord written notice of such emergency (the "Emergency
Notice") and of Tenant's intention to take action with respect thereto (the
"Necessary Action") and the Necessary Action is also a Required Action involving
a material interruption in telephone, plumbing, electrical, or heating,
ventilation or air conditioning systems or services for the Premises, Tenant may
take the Necessary Action if Landlord does not commence the Necessary Action
within one (1) business day after the Emergency Notice
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(the "Emergency Cure Period") and thereafter use its best efforts and due
diligence to complete the Necessary Action as soon as possible.
14.1.3. If any Necessary Action will affect the systems and
equipment located within the Building (the "Building Systems"), the structural
integrity of the Building, or the exterior appearance of the Building, Tenant
shall use only those contractors used by Landlord in the Building for work on
the Building Systems, or its structure, and Landlord shall provide Tenant (when
available and upon Tenant's request) with notice identifying such contractors
and any changes to the list of such contractors, unless such contractors are
unwilling or unable to perform such work or the cost of such work is not
competitive, in which event Tenant may utilize the services of any other
qualified and reputable contractors which normally and regularly perform similar
work in comparable buildings except for any contractors who Landlord
specifically notifies Tenant in writing within five (5) business days of
Landlord's receipt of a Repair Notice or within one (1) business day of
Landlord's receipt of an Emergency Notice that Tenant may not use for such work
(which notice shall specify the commercially reasonable reasons for Landlord's
not allowing Tenant to use such contractor).
14.1.4. If any Required Action or Necessary Action is taken by
Tenant pursuant to the terms of this Section 14.1, then Landlord shall reimburse
Tenant for its reasonable and documented out-of-pocket costs and expenses in
taking the Required Action or Necessary Action within thirty (30) days after
receipt by Landlord of an invoice from Tenant which sets forth a reasonably
particularized breakdown of its costs and expenses in connection with taking the
Required Action or Necessary Action on behalf of Landlord (the "Repair
Invoice"). If Landlord does not promptly reimburse Tenant for the Repair
Invoice, and Tenant thereafter obtains a final judgment against Landlord for
such amount, then Tenant may deduct from the next Rent payable by Tenant under
this Lease, the judgment amount (which may include the amount set forth in the
Repair Invoice plus interest at the Agreed Rate and any award of attorneys' fees
provided herein). Notwithstanding the foregoing, Tenant shall not be permitted
to offset or deduct from Rent in any single calendar year an amount in excess of
one (1) month's Basic Rent.
14.2. Tenant's Obligations.
14.2.1. Tenant shall, at its sole cost and expense, except for
performance of Landlord's obligations as specified elsewhere in this Lease,
maintain the Premises including all improvements therein in good order,
condition and repair.
14.2.2. In connection with Tenant surrendering possession of the
Premises at the end of the Lease Term, Tenant agrees to repair any damage caused
by or in connection with the removal of any article of personal property,
business or trade fixtures, machinery, equipment, cabinetwork, furniture,
movable partitions or permanent improvements or additions, including without
limitation thereto, repairing the floor and patching and painting the walls
where required by Landlord to Landlord's reasonable satisfaction, all at
Tenant's sole cost and expense. Reasonable wear and tear shall be excepted from
Tenant's restoration obligations hereunder. Tenant shall indemnify, defend and
hold Landlord harmless against any loss, liability, cost or expense (including
reasonable attorneys' fees) resulting from delay by Tenant in so surrendering
the Premises. Tenant's obligation hereunder shall survive the expiration or
termination of this Lease.
14.2.3. If Tenant fails to maintain the Premises in good order,
condition and repair, Landlord may give Tenant notice to do such acts as are
reasonably required to so maintain the Premises. If Tenant thereafter fails to
promptly commence such work and diligently prosecute it to completion, then
Landlord shall have the right to do such acts and expend such funds at the
expense of Tenant as are reasonably required to perform such work; provided,
however, that Landlord shall exercise such right only where Tenant's failure to
act is material and Landlord has given Tenant reasonable prior notice of
Landlord's intention to perform such acts if Tenant fails to do so. Any amount
so expended by Landlord (together with a charge for Landlord's administration
and overhead equal to five percent (5%) thereof) shall be paid by Tenant
promptly after demand, with interest at the Agreed Rate from the date of such
work. Landlord shall have no liability to Tenant for any inconvenience or
interference with the use of such work. Landlord shall have no liability to
Tenant for any inconvenience or interference with the use of the Premises by
Tenant as a result of performing any such work.
14.3. Compliance with Law. Landlord and Tenant shall each do all acts
required to comply with all applicable laws, ordinances, and rules of any public
authority relating to their respective maintenance obligations as set forth
herein.
15. ALTERATIONS AND ADDITIONS
15.1. Tenant shall make no alterations, additions or improvements to
the Premises or any part thereof having a cost in excess of Forty Thousand
Dollars ($40,000) or which affects the exterior appearance of the
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Premises or the Building or any common portion of the Building or any portion of
the Common Area or the electrical, mechanical, plumbing or other systems in the
Building or any structural elements of the Building, without obtaining the prior
written consent of Landlord in each instance. Such consent may be granted or
withheld in Landlord's reasonable discretion. Tenant shall reimburse Landlord
for the reasonable cost of supervising any work for which Landlord's consent is
required hereunder. Landlord may impose as a condition to such consent such
requirements as Landlord may deem necessary in its reasonable discretion,
including without limitation the requirement that Landlord be furnished with
working drawings before work commences and that a bond be furnished (except that
Landlord will waive the requirement of a bond so long as Century Communications
Corp. is Guarantor and the then-Tenant is the entity initially named herein or
an Affiliate), and requirements relating to the manner in which the work is
done, the contractor by whom it is performed, and the times during which it is
accomplished. Upon written request of Landlord prior to the expiration or
earlier termination of the Lease, Tenant will remove at its expense any such
alterations, improvements or additions to the Premises; provided, however, that
if requested by Tenant at the time Tenant seeks Landlord's consent to
alterations, improvements or additions, Landlord shall notify Tenant whether
Landlord will require removal of such alterations, improvements or additions
upon expiration of the term or earlier termination of this Lease and, provided
further, that Tenant may, at any time within the last six (6) months of the
term, request that Landlord promptly designate which alterations, improvements
or additions Tenant is to remove (other than those as to which Landlord has made
a prior determination to require or waive removal). Landlord will not require
Tenant to remove the "Tenant Improvements" performed pursuant to the "Approved
Working Drawings" (as such terms are defined in the Construction Provisions
attached as Exhibit C to this Lease) or any Building standard floor covering or
paint. Any damage done to the Premises in connection with any such removal shall
be repaired at Tenant's sole cost and expense. Landlord may, in connection with
any such removal which reasonably might involve damaging the Premises, require
that such removal be performed by a bonded contractor or other person for which
a bond satisfactory to Landlord has been furnished covering the cost of
repairing the anticipated damage. Unless so removed, all such alterations,
additions or improvements shall at the expiration or earlier termination of the
Lease become the property of Landlord and remain upon the Premises. All such
improvements, alterations or additions must be done in a good and workmanlike
manner and diligently prosecuted to completion so that the Premises shall at all
times be a complete unit except during the period of work. Such improvements,
alterations or additions shall only be constructed by a contractor which is
bondable and which shall use union employees only, except that such contractor
may use non-union employees only if prior to the commencement of any work Tenant
obtains Landlord's written consent which Landlord may withhold unless it is
adequately protected against any and all loss or damage that may result from
labor problems or any work stoppage or interruption arising from the use of such
non-union employees. Tenant shall deliver to Landlord upon commencement of such
work a copy of the building permit with respect thereto. Upon completion of such
work, Tenant shall file for record in the office of the County Recorder where
the Project is located a Notice of Completion, as required or permitted by law.
All such work shall be performed and done strictly in accordance with the laws
and ordinances relating thereto and shall be performed so as not to obstruct the
access to the premises of any other tenant in the Building or Project. Tenant
agrees to carry insurance as required by Article 17 covering any improvements,
alterations or additions to the Premises made by Tenant under the provisions of
this Article 15, it being expressly agreed that none of such improvements,
additions or alterations shall be insured by Landlord under the insurance
Landlord may carry upon the Building, nor shall Landlord be required under any
provision for reconstruction to reinstall any such improvements, additions or
alterations. In addition, it is expressly agreed that if any tax is imposed, or
the amount of taxes on the Building or the Project is increased, by reason of
any such improvements, alterations or additions, Tenant shall be solely
responsible therefor under Article 7.
16. INDEMNITY
16.1. Indemnification by Tenant. Tenant shall indemnify, defend and
hold Landlord, its agents and employees, harmless from and against any and all
claims, liability, loss, cost or expense (including reasonable attorneys' fees
but excluding consequential damages unless otherwise specifically permitted by
this Lease) arising out of or in connection with (i) any injury or damage to any
person or property occurring in, on or about the Premises or any part thereof or
the Building or Common Area, to the extent such injury or damage is caused by
any negligent or intentional act or omission by Tenant, its agents, contractors,
employees or invitees or (ii) any breach or default in the performance of any
obligation on Tenant's part to be performed under this Lease. If any action or
proceeding is brought against Landlord by reason of any such claim, upon notice
from Landlord, Tenant shall defend the same at Tenant's expense by counsel
reasonably satisfactory to Landlord. Tenant, as a material part of the
consideration to Landlord, hereby assumes all risk of damage to property or
injury to persons in, upon or about the Premises from any cause except
Landlord's negligence or wrongful acts, and Tenant hereby waives all claims with
respect thereto against Landlord. The foregoing provisions shall survive the
termination of this Lease. The provisions of this Section 16.1 are subject to
the waiver contained in Section 17.7 below.
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16.2. Exemption of Landlord from Liability. If the Premises, the
Building, or the Common Area, or any part thereof, is damaged by fire or other
cause against which Tenant is required to carry insurance pursuant to this
Lease, Landlord shall not be liable to Tenant for any loss, cost or expense
arising out of or in connection with such damage. Tenant hereby releases
Landlord, its directors, officers, shareholders, partners, employees, agents and
representatives, from any liability, claim or action arising out of or in
connection with such damage. Furthermore, Tenant shall, pursuant to Article 17,
maintain insurance against loss, injury, or damage which may be sustained by the
person, goods, wares, merchandise or property of Tenant, its agents,
contractors, employees, invitees or customers, or any other person in or about
the Premises, caused by or resulting from fire, steam, electricity, gas, water,
or rain, which may leak or flow from or into any part of the Premises or the
Building, or from the breakage, leakage, obstruction or other defects of the
pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting
fixtures of the same, whether such damage or injury results from conditions
arising within the Premises or other portions of the Building, or from other
sources, and Landlord shall not be liable therefor, unless caused by Landlord's
negligence or wrongful act, and in that event only to the extent not covered by
the insurance which Tenant is required to carry pursuant to this Lease. Landlord
shall not be liable to Tenant for any damages arising out of or in connection
with any act or omission of any other tenant in the Project or for losses due to
theft or burglary or other wrongful acts of third parties. Nothing in this
Section 16.2 shall relieve Landlord of liability for its negligent or
intentional acts or the negligence or intentional acts of Landlord's agents or
employees, except (i) in no event shall Landlord be liable for consequential
damages and (ii) the foregoing shall be subject to the waiver contained in
Section 17.7 below.
16.3. Indemnification by Landlord. Landlord shall indemnify, defend and
hold Tenant, its agents and employees harmless from and against any and all
claims, liability, loss, cost, direct damages or expense (including reasonable
attorneys' fees but excluding consequential damages) arising out of or in
connection with (i) any injury or damage to any person or property occurring in,
on or about the Premises or any part thereof or the Building or Common Area, to
the extent such injury or damage is caused by any negligent or intentional act
or omission by Landlord, its agents, contractors, employees or invitees (but
excluding other tenants or occupants of the Building or Project) or (ii) any
breach or default in the performance of any obligation on Landlord's part to be
performed under this Lease. If any action or proceeding is brought against
Tenant by reason of any such claim, upon notice from Tenant, Landlord shall
defend the same at Landlord's expense by counsel reasonably satisfactory to
Tenant. The foregoing provisions shall survive the termination of this Lease.
The provisions of this Section 16.3 are subject to the waiver contained in
Section 17.7 below.
16.4. Landlord's Waiver. To the extent not prohibited by law, Tenant
and its Affiliates shall not be liable for, and are hereby released from any
responsibility for, any damage either to person or property or resulting from
the loss of use thereof, which damage is sustained by Landlord due to the
Premises or any part thereof, or any appurtenances thereof needing repair
(excluding any improvements, materials, or equipment installed or located in the
Building or the Project by Tenant), or due to the occurrence of any accident or
event in or about the Premises, or due to any act or neglect of any tenant or
occupant of the Project or of any other person, except to the extent (i) caused
by the negligence or willful misconduct of Tenant or Tenant's Affiliates,
agents, employees, subtenants or invitees or (ii) covered by insurance carried
by Tenant (or which Tenant is required to carry hereunder) or (iii) caused by
the failure of Tenant to timely and fully perform its obligations under this
Lease. The provisions of this Section 16.4 shall apply particularly, but not
exclusively, to damage caused by gas, electricity, steam, sewage, sewer gas or
odors, fire, water or by the bursting or leaking of pipes, faucets, sprinklers,
plumbing fixtures and windows.
17. INSURANCE
17.1. General. All insurance reasonably required to be carried by
Tenant hereunder shall be issued by responsible insurance companies acceptable
to Landlord and the holder of any deed of trust or mortgage secured by any
portion of the Premises (hereinafter referred to as a "Mortgagee"). All policies
of insurance provided for herein shall be issued by insurance companies with
general policyholder's rating of not less than A and a financing rating of not
less than Class X as rated in the most current available "Best Insurance
Reports". Each policy shall name Landlord and at Landlord's request any
Mortgagee and an agent of Landlord as an additional insured, as their respective
interests may appear. Tenant shall deliver certificates of such insurance to
Landlord, evidencing the existence and amounts of such insurance, within ten
(10) days after Landlord's request therefor. Failure to make such delivery shall
constitute a default by Tenant under this Lease. All policies of insurance
delivered to Landlord must contain a provision that the company writing said
policy will give Landlord thirty (30) days prior written notice of any
modification, cancellation or lapse or reduction in the amounts of insurance.
All public liability, property damage and other casualty insurance policies
shall be written as primary policies, not contributing with, and not in excess
of coverage which Landlord may carry. Tenant shall upon Landlord's request
furnish Landlord with certificates of any such policy at least thirty (30) days
prior to the expiration thereof. Tenant agrees that if Tenant does not procure
and maintain such insurance, Landlord may (but shall not be required to) upon
not less than three (3) business days prior notice to Tenant,
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obtain such insurance on Tenant's behalf and charge Tenant the premiums therefor
together with a ten percent (10%) handling charge, payable upon demand. Tenant
may carry such insurance under a blanket policy provided such blanket policy
expressly affords the coverage required by this Lease by a Landlord's protective
liability endorsement or otherwise and evidence thereof is furnished to Landlord
as required above.
17.2. Casualty Insurance. At all times during the term hereof, Tenant
shall maintain in effect policies of casualty insurance covering (i) all
improvements in, on or to the Premises (including any Building Standard
furnishings, and any alterations, additions or improvements as may be made by
Tenant, and (ii) trade fixtures, merchandise and other personal property from
time to time in, on or upon the Premises. Such policies shall include coverage
in an amount not less than one hundred percent (100%) of the actual replacement
cost thereof from time to time during the term of this Lease. Such policies
shall provide protection against any peril included within the classification
"Fire and Extended Coverage", against vandalism and malicious mischief, theft,
sprinkler leakage, earthquake sprinkler leakage, and against flood damage (and
including cost of demolition and debris removal). Replacement cost for purposes
hereof shall be determined by a duly licensed or otherwise certified or
accredited insurance appraiser selected by Tenant's independent insurance
carrier or otherwise by mutual agreement. The proceeds of such insurance shall
be used for the repair or replacement of the property so insured. Upon
termination of this Lease following a casualty as set forth in Article 18, the
proceeds under (i) above shall be paid to Landlord (except that Tenant shall be
entitled to receive (A) the value of any alterations, additions or improvements
made subsequent to the Commencement Date and paid for by Tenants, and (B) a
portion of the value of the Tenant Improvements based on the ratio that Tenant's
contribution to the "hard costs" of the Tenant Improvements bears to the total
"hard costs" of the Tenant Improvements, if the "hard costs" of the Tenant
Improvements exceed the Tenant Improvement Allowance (as defined in the
Construction Provisions attached as Exhibit C)), and the proceeds under (ii)
above shall be paid to Tenant.
17.3. Liability Insurance. Tenant shall at all times during the term
hereof obtain and continue in force bodily injury liability and property damage
liability insurance adequate to protect Landlord against liability for injury to
or death of any person in connection with the activities of Tenant in, on or
about the Premises or with the use, operation or condition of the Premises. Such
insurance at all times shall be in an amount of not less than Two Million
Dollars ($2,000,000) for injuries to persons in one (1) accident, not less
than One Million Dollars ($1,000,000) for injury to any one (1) person and not
less than Five Hundred Thousand Dollars ($500,000) with respect to damage to
property. The limits of such insurance do not necessarily limit the liability of
Tenant hereunder. All public liability and property damage policies shall
contain a provision that Landlord, although named as an insured, shall
nevertheless be entitled to recovery under said policies for any loss occasioned
to it, its partners, agents and employees by reason of the negligence of Tenant.
17.4. Workers' Compensation Insurance; Self Insurance. Tenant shall, at
all times during the term hereof, maintain in effect workers' compensation
insurance as required by applicable statutes. Subject to the limitations set
forth below, Tenant or an Affiliate (such entity or individual to be known as a
"Self Insuring Party") shall be entitled to self-insure its insurance
requirements set forth under this Lease, including Sections 17.2, 17.3 and 17.4
of this Article 17 and under the Construction Provisions. Any self-insurance
shall be deemed to contain all of the terms and conditions applicable to such
insurance as required in this Article 17, including, without limitation, a full
waiver of subrogation. If Tenant elects to so self-insure, then with respect to
any claims which may result from incidents occurring during the Term, such
self-insurance obligation shall survive the expiration or earlier termination of
this Lease to the same extent as the insurance required would survive. Before
Self-Insuring Party seeks to self-insure its insurance requirements under
Sections 17.3 or 17.4, the Self-Insuring Party shall demonstrate to Landlord's
reasonable satisfaction that: (i) the Self-Insuring Party has a minimum tangible
net worth (as determined from audited financial statements prepared in
accordance with generally accepted accounting principles applied on a consistent
basis) of not less than Fifty Million Dollars ($50,000,000); and (ii) that the
risk management program of the Self-Insuring Party employs at least the same
underwriting standards and reserve requirements as would be applicable if the
Self-Insuring Party were admitted as a licensed insurer in each jurisdiction
where the Self-Insuring Party insures its business activities (or the activities
of its Affiliates).
17.5. Adjustment. Every three (3) years during the term of this Lease,
or whenever Tenant materially improves or alters the Premises, whichever is
earlier, Landlord and Tenant shall mutually agree to increases in Tenant's
insurance policy limits for the insurance to be carried by Tenant as set forth
in this Article 17. If Landlord and Tenant cannot mutually agree upon the
amounts of said increases within thirty (30) days after notice from Landlord,
then the insurance policy limits set forth in this Article 17 shall be adjusted
upward by an accredited insurance appraiser approved by Landlord to reflect
increased replacement costs and increased limits of liability then prevailing
generally in the local real estate industry for comparable property.
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17.6. Landlord's Insurance. Landlord shall at all times from and after
substantial completion of the Premises maintain in effect as an item of Expense
a policy or policies of insurance covering the Common Area and the buildings in
the Project in an amount equal to one hundred percent (100%) of the actual
replacement cost thereof (exclusive of the cost of excavations, foundations and
footings) from time to time during the term of this Lease, providing protection
against rental loss and any peril generally included in the classification "Fire
and Extended Coverage" which may include insurance against sprinkler damage,
vandalism, malicious mischief, earthquake and third-party liability, and
including such coverages in such amounts as Landlord may designate. In addition,
Landlord shall during the term maintain in effect a policy or policies of bodily
injury liability and property damage insurance in minimum coverage amounts not
less than those specified for Tenant in Section 17.3 (as increased pursuant to
Section 17.5), or such greater amounts as Landlord may determine, with all costs
thereof included as an item of Expenses. Landlord's obligation to carry the
insurance provided for herein may be brought within the coverage of any
so-called blanket policy or policies of insurance carried and maintained by
Landlord, provided that the coverage afforded will not be reduced or diminished
by reason of the use of such blanket policy of insurance.
17.7. Waiver of Subrogation. Landlord and Tenant each hereby waives any
and all rights of recovery against the other or against the directors, officers,
shareholders, partners, employees, agents and representatives of the other, on
account of loss or damage of such waiving party or its property, or the property
of others under its control, to the extent that such loss or damage is insured
against under any fire and extended coverage insurance policy which either may
have been in force at the time of such loss or damage. Landlord and Tenant
shall, upon obtaining the policies of insurance required under this Lease, give
notice to their respective insurance carrier(s) that the foregoing mutual waiver
of subrogation is contained in this Lease. The waivers set forth herein shall be
required to the extent that same are available from each party's insurer without
additional premium, if an extra charge is incurred to obtain such waiver, it
shall be paid by the party in whose favor the waiver runs within fifteen (15)
days after written notice from the other party unless the party in whose favor
the waiver runs agrees that such waiver is unnecessary (in which case the
provisions of this Section 17.7 shall not bind the other party's insurers).
18. DAMAGE AND DESTRUCTION
18.1. Partial Damage -- Insured. If the Premises, Building or Common
Area are damaged by a risk covered under fire and extended coverage insurance
protecting Landlord, then Landlord shall restore such damage provided insurance
proceeds are available to Landlord to pay the greater of (i) eighty percent
(80%) of the cost of restoration or (ii) the cost of restoration in excess of
One Million Dollars ($1,000,000), and provided such restoration by Landlord can
be completed within six (6) months after the occurrence of such damage, in the
reasonable opinion of a registered architect or engineer appointed by Landlord.
In such event this Lease shall continue in full force and effect so long as the
Premises can be used by Tenant, except that Tenant shall be entitled to an
equitable reduction of Rent and Expenses while such restoration takes place,
such reduction to be based upon the extent to which the damage and the
restoration efforts directly and materially interfere with Tenant's use of the
Premises.
18.2. Partial Damage -- Uninsured. If the Premises, Building or Common
Area are damaged by a risk not covered by such insurance or the insurance
proceeds available to Landlord are less than the greater of (i) eighty percent
(80%) of the cost of restoration, or (ii) the cost of restoration in excess of
One Million Dollars ($1,000,000), or if the restoration cannot be completed
within six (6) months after the occurrence of such damage in the opinion of the
registered architect or engineer appointed by Landlord, then Landlord shall have
the option either to (i) repair or restore such damage, this Lease continuing in
full force and effect so long as the Premises can be used by Tenant, but the
Rent and Expenses to be equitably reduced as hereinabove provided, or (ii) give
notice to Tenant at any time within sixty (60) days after such damage
terminating this Lease as of a date to be specified in such notice, which date
shall be not less than thirty (30) nor more than sixty (60) days after giving
such notice. If such notice is given, this Lease shall expire and any interest
of Tenant in the Premises shall terminate on the date specified in such notice
and the Rent and Expenses, reduced by an equitable reduction (except as
hereinabove provided) based upon the extent, if any, to which such damage
directly and materially interfered with Tenant's use of the Premises, shall be
paid to the date of such termination, and Landlord agrees to refund to Tenant
any Rent or Expenses theretofore paid in advance for any period of time
subsequent to such termination date.
18.3. Total Destruction. If the Premises are totally destroyed (i.e.,
over eighty percent (80%) of the Premises is destroyed or if Tenant cannot use
the Premises without major restoration) or if in Landlord's judgment the
Premises cannot be restored as set forth above, then, notwithstanding the
availability of insurance proceeds, this Lease shall be terminated effective as
of the date of the damage.
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18.4. Landlord's Obligations. Landlord shall not be required to carry
insurance of any kind on Tenant's property and shall not in the absence of
Landlord's negligence or wrongful acts be required to repair any injury or
damage thereto by fire or other cause, or to make any restoration or replacement
of any paneling, decorations, partitions, ceilings, floor covering, office
fixtures or any other improvements or property installed in the Premises by or
at the direct or indirect expense of Tenant, and Tenant shall be solely
responsible for restoring or replacing same in the event of damage required to
be insured against by Tenant, and Tenant shall have no claim against Landlord
for any loss suffered by reason of any such damage, destruction, repair or
restoration. Notwithstanding anything to the contrary contained in this Article
18, Landlord shall have the option not to repair, reconstruct or restore the
Premises with respect to damage or destruction which cannot be repaired within
thirty (30) days after the date of the damage or destruction and occurs during
the last twelve (12) months of the term of this Lease or any extension thereof;
provided, however, that if Landlord exercises such option by written notice
delivered to Tenant within ten (10) days after the date of the damage or
destruction, this Lease shall be terminated upon such exercise, and provided
further that if Landlord does not exercise such option, Tenant likewise may
terminate this Lease by notice delivered within fifteen (15) days after the date
of the damage or destruction but before Landlord begins any repair work.
Landlord shall, within sixty (60) days after the date of any damage to the
Premises, notify Tenant whether the same constitutes a total destruction or
partial damage of the Premises and, in cases of partial damage, whether Landlord
will elect to repair such damage or terminate this Lease.
18.5. Waiver by Tenant. It is expressly agreed that this Article 18
shall govern the rights of Landlord and Tenant in the event of damage and
destruction and supersedes the provisions of any statutes with respect to any
damage or destruction of the Premises.
18.6. Termination by Tenant. If the Premises are materially damaged
(such that Tenant is unable to conduct business therein) or destroyed by a cause
other than the negligence or intentional misconduct of Tenant or its agents or
employees and the restoration thereof cannot be completed within six (6) months
after the commencement of work in the reasonable opinion of the registered
architect or engineer appointed by Landlord, Tenant shall have the right to
terminate this Lease by notice to Landlord within thirty (30) days after
Tenant's receipt of the opinion concerning time needed for restoration. Landlord
shall not be obligated to commence any repair or restoration work unless and
until Tenant waives this termination right in writing or in time for exercise
thereof elapses without notice of termination from Tenant.
19. CONDEMNATION
19.1. If all or a substantial part of the Premises, Building or Common
Area is taken or appropriated for public or quasi-public use by the right of
eminent domain or otherwise by a taking in the nature of inverse condemnation,
with or without litigation, or is transferred by agreement in lieu thereof (any
of the foregoing being referred to herein as a "taking"), either party hereto
may, by written notice given to the other within thirty (30) days after receipt
of notice of such taking, elect to terminate this Lease as of the date
possession is transferred pursuant to the taking; provided, however, that before
such party may terminate this Lease for a taking, such taking shall be of such
an extent and nature as to, in the reasonable judgment of such party,
economically frustrate its business therein, or to substantially handicap,
impede or impair its use thereof. No award for any partial or entire taking
shall be apportioned, and Tenant thereby assigns to Landlord any and all rights
of Tenant now or hereafter arising in or to the same or any part thereof;
provided, however, that Tenant may file a separate claim for an award and
nothing contained herein shall be deemed to give Landlord any interest in, or to
require Tenant to assign to Landlord, any award made to Tenant for the taking of
personal property belonging to Tenant or for Tenant's moving expenses or
interruption in Tenant's business. In the event of a taking which does not
result in a termination of this Lease, Rent and Expenses shall be equitably
reduced to the extent Tenant's business in or use of the Premises is
economically impaired as described above. No temporary taking of the Premises or
any part of the Project shall terminate this Lease, or give Tenant any right to
any abatement of Rent or Expenses hereunder, except that Rent and Expenses shall
be equitably reduced as described above during that portion of any temporary
taking lasting more than thirty (30) days. To the extent the provisions of this
Article 19 conflict with California Code of Civil Procedure Section 1265.130
allowing either party to petition the court to terminate this Lease for a
partial taking, the provisions of this Article 19 shall govern.
20. LIENS
20.1. Tenant shall keep the Premises, the Building and the Project free
from any liens arising out of work performed, materials furnished, or
obligations incurred by Tenant, and shall indemnify, hold harmless and defend
Landlord from any liens and encumbrances arising out of any work performed or
materials furnished by or at the direction of Tenant. Tenant shall give Landlord
at least ten (10) business days' prior written notice of the expected date of
commencement of work relating to alterations, improvements, or
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additions to the Premises and if requested by Landlord shall secure a completion
and indemnity bond for said work, satisfactory to Landlord, in an amount at
least equal to one and one-half (1 1/2) times the estimated cost of such work
(except that Landlord will waive the requirement of such bond provided Century
Communications Corp. is Guarantor and the then-Tenant is the entity initially
named herein or an Affiliate). Landlord shall have the right at all times to
keep posted on the Premises any notices permitted or required by law, or which
Landlord shall deem proper, for the protection of Landlord and the Premises, and
any other party having any interest therein, against mechanics' and
materialmen's liens. If any claim of lien is filed against the Premises or any
part of the Project or any similar action affecting title to such property is
commenced, the party receiving notice of such lien or action shall immediately
give the other party written notice thereof. If Tenant fails, within twenty (20)
days following the imposition of any lien, to cause such lien 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 it shall deem
proper, including payment of the claim giving rise to such lien. All such sums
paid by Landlord and all costs and expenses reasonably incurred by it in
connection therewith (including reasonable attorneys' fees) shall be payable to
Landlord by Tenant on demand, with interest at the Agreed Rate from the date of
expenditure.
21. DEFAULTS BY TENANT
21.1. The occurrence of any one or more of the following events shall
constitute a material default and breach of this Lease by Tenant:
21.1.1. The failure by Tenant to make any payment of Rent or
Expenses or of any other sum required to be made by Tenant hereunder, as and
when due, where such failure continues for more than ten (10) days after written
notice of delinquency.
21.1.2. The failure by Tenant to observe or perform any of the
covenants, conditions or provisions of this Lease to be observed or performed by
Tenant, if such failure is not cured within twenty-five (25) days after written
notice thereof from Landlord to Tenant; provided, however, that if the nature of
Tenant's default is such that it cannot be cured solely by payment of money and
more than thirty (30) days are reasonably required for its cure, then Tenant
shall not be deemed to be in default if Tenant commences such cure within the
twenty-five (25) day period and thereafter diligently prosecutes such cure to
completion.
21.2. Any notice required or permitted by this Article 21 is intended
to satisfy to the maximum extent possible any and all notice requirements
imposed by law on Landlord. Landlord may serve a statutory notice to quit, a
statutory notice to pay rent or quit, or a statutory notice of default, as the
case may be, to effect the giving of any notice required by this Article 21.
22. LANDLORD'S REMEDIES
22.1. In the event of any material default or breach of this Lease by
Tenant, Landlord's obligations under this Lease shall be suspended and Landlord
may at any time thereafter, without limiting Landlord in the exercise of any
other right of remedy at law or in equity which Landlord may have (all remedies
provided herein being non-exclusive and cumulative), do any one or more of the
following:
22.1.1. Landlord shall have the remedy described in California
Civil Code Section 1951.4 (Landlord may continue the Lease in effect after
Tenant's breach and abandonment and recover Rent as it becomes due, as Tenant
has the right to sublet or assign, subject only to reasonable limitations).
Notwithstanding that Landlord fails to elect to terminate the Lease initially,
Landlord at any time thereafter may elect to terminate the Lease by virtue of
any uncured default by Tenant. In the event of any such termination, Landlord
shall be entitled to recover from Tenant any and all damages incurred by
Landlord by reason of Tenant's default (including, without limitation, the
damages described in Section 22.1.2 below), as well as all reasonable costs of
reletting, including commissions, reasonable attorneys' fees, restoration or
remodeling costs, and costs of advertising.
22.1.2. Landlord also shall have the remedy described in
California Civil Code Section 1951.2. Thus, Landlord may terminate Tenant's
right to possession by any lawful means, in which case this Lease shall
terminate and Tenant shall immediately surrender possession of the Premises to
Landlord. In such event, Landlord shall be entitled to recover from Tenant all
damages incurred by Landlord by reason of Tenant's default including (without
limitation) the following: (1) the worth at the time of award of any unpaid Rent
which had been earned at the time of such termination; plus (2) the worth at the
time of award of the amount by which the unpaid Rent which would have been
earned after termination until the time of award exceeds
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the amount of such Rent loss that Tenant proves could have been reasonably
avoided; plus (3) the worth at the time of award of the amount by which the
unpaid Rent for the balance of the term after the time of award exceeds the
amount of such Rent loss that Tenant proves could have been reasonably avoided;
plus (4) any other amount, and court costs, reasonably necessary to compensate
Landlord for all the detriment proximately caused by Tenant's default or which
in the ordinary course of things would be likely to result therefrom (including,
without limiting the generality of the foregoing, the amount of any commissions
and/or finder's fee for a replacement tenant); plus (5) at Landlord's election,
such other amounts in addition to or in lieu of the foregoing as may be
permitted from time to time by applicable law. As used in subparagraphs (1 ) and
(2) of this Section 22.1.2, the "worth at the time of award" is to be computed
by allowing interest at the then Agreed Rate (but in no event more than the
maximum rate of interest allowable under applicable usury law), and, as used in
subparagraph (3) of this Section 22.1.2, the "worth at the time of award" is to
be computed by discounting such amount at the discount rate of the U.S. Federal
Reserve Bank of San Francisco at the time of award, plus one percent (1%). The
term "Rent", as used in this Article 22, shall be deemed to be and to mean all
Rent, Expenses, parking fees and other monetary sums required to be paid by
Tenant pursuant to this Lease or as defined in Section 4.1 hereof. For the
purpose of determining the amount of "unpaid Rent which would have been earned
after termination" or the "unpaid Rent for the balance of the term" (as
referenced in subparagraphs (2) and (3) hereof), the amount of parking fees and
Expenses shall be deemed to increase annually for the balance of the term by an
amount equal to the average annual percentage increase in parking fees and
Expenses during the three (3) calendar years preceding the year in which the
Lease was terminated, or, if such termination shall occur prior to the
expiration of the third calendar year occurring during the term of this Lease,
then the amount of parking fees and Expenses shall be deemed to increase monthly
for the balance of the term by an amount equal to the average monthly percentage
increase in parking fees and Expenses during all of the calendar months
preceding the month in which the Lease was terminated.
22.1.3. Collect sublease rents (or appoint a receiver to collect
such rent) and otherwise perform Tenant's obligations at the Premises, it being
agreed, however, that neither the filing of a petition for the appointment of a
receiver for Tenant nor the appointment itself shall constitute an election by
Landlord to terminate this Lease.
22.1.4. Proceed to cure the default at Tenant's sole cost and
expense, without waiving or releasing Tenant from any obligation hereunder;
provided, however, that Landlord shall give Tenant at least five (5) days prior
written notice of Landlord's intent to exercise this remedy. If at any time
Landlord pays any sum or incurs any expense as a result of or in connection with
curing any default of Tenant (including any administrative fees provided for
herein and reasonable attorneys' fees), the amount thereof shall be immediately
due as of the date of such expenditure and, together with interest at the Agreed
Rate from the date of such expenditures, shall be paid by Tenant to Landlord
immediately upon Landlord's delivery of an invoice therefor, and Tenant hereby
covenants to pay any and all such sums.
22.1.5. If Tenant is not occupying the Premises, retain possession
of all of Tenant's fixtures, furniture, equipment, improvements, additions and
other personal property left in the Premises until Tenant's payment of
reasonable storage charges therefor or, at Landlord's option, at any time, to
require Tenant to forthwith remove same, and if not so removed to dispose of
same in the manner permitted by law for unclaimed personal property.
22.2. All covenants and agreements to be performed by Tenant under this
Lease shall be performed by Tenant at Tenant's sole cost and expense and without
any offset to or abatement of Rent or Expenses, except as otherwise expressly
provided in this Lease.
22.3. Notwithstanding anything to the contrary contained elsewhere in
this Lease but subject to the limitations set forth below, Tenant shall not be
liable under any circumstances, for injury or damage to, or interference with,
Landlord's business, including but not limited to loss of title to the Building,
Project or any portion thereof, loss of profits, loss of rents or other revenues
(excluding payments thereof which Tenant is otherwise obligated to make under
this Lease), loss of business opportunity, loss of goodwill or loss of use, in
each case however occurring. Nothing in this Section 22.3 shall be construed as
limiting or waiving Landlord's right to recover from damages of all types
(direct or indirect, and compensatory, special and consequential) arising from:
(i) Tenant's holding over in possession without Landlord's consent; (ii)
Tenant's failure to surrender the Premises in the condition required by this
Lease; and (iii) Tenant's default in its obligation to provide estoppel
certifications, subordination agreements and/or financial statements in
connection with any proposed sale, financing or refinancing of the Building or
the Project.
23. DEFAULTS BY LANDLORD
23.1. Landlord shall not be deemed to be in default in the performance
of any obligation under this Lease unless and until it has failed to perform
such obligation within thirty (30) days after receipt of written notice by
Tenant to Landlord specifying such failure; provided, however, that if the
nature of Landlord's default
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is such that more than thirty (30) days are required for its cure, then Landlord
shall not be deemed to be in default if it commences such cure within the thirty
(30) day period and thereafter diligently prosecutes such cure to completion.
Tenant agrees to give any Mortgagee a copy, by certified mail, of any notice of
default served upon Landlord, provided that prior to such notice Tenant has been
notified in writing (by way of Notice of Assignment of Rents and Leases, or
otherwise) of the address of such Mortgagee. Tenant further agrees that if
Landlord shall have failed to cure such default within the time provided for in
this Lease, then (except as otherwise provided in any subordination and/or
nondisturbance agreement then in effect between Tenant and a Mortgagee) any such
Mortgagee shall have an additional forty-five (45) days within which to cure
such default on the part of the Landlord or if such default cannot be cured
within that time, then such additional time as may be necessary if within that
forty-five (45) days the Mortgagee has commenced and is diligently pursuing the
remedies necessary to cure such default (including but not limited to
commencement of foreclosure proceedings and the appointment of a receiver, if
necessary, to effect such cure), in which event this Lease shall not be
terminated while such remedies are being so pursued. If Tenant recovers any
judgment against Landlord for a default by Landlord of this Lease, the judgment
shall be satisfied only out of the interest of Landlord in the Project or any
proceeds from the sale thereof, and neither Landlord nor any of its partners,
shareholders, officers, directors, employees or agents shall be personally
liable for any such default or for any deficiency.
24. COSTS OF SUIT
24.1. If either party brings action for relief against the other,
declaratory or otherwise, arising out of this Lease, including any suit by
Landlord for the recovery of Rent or possession of the Premises, the losing
party shall pay the successful party its reasonable costs incurred in connection
with and in preparation for said action, including its reasonable attorneys'
fees. If Landlord, without fault on Landlord's part, is made a party to any
action instituted by Tenant against a third party or by a third party against
Tenant or by or against any person holding under or using the Premises by
license of Tenant, or for the foreclosure of any lien for labor or material
furnished to or for Tenant or any such other person, or otherwise arising out of
or resulting from any act or omission of Tenant or of any such other person,
Tenant shall at its cost and at Landlord's option defend Landlord therefrom and
further, except to the extent Landlord is found separately liable for its own
negligence or wrongful acts, indemnify and hold Landlord harmless from any
judgment rendered in connection therewith and all costs and expenses (including
reasonable attorneys' fees) incurred by Landlord in connection with such action.
25. SURRENDER OF PREMISES; HOLDING OVER
25.1. Surrender. On expiration or termination of this Lease, Tenant
shall surrender to Landlord the Premises, and all Tenant's improvements thereto
and alterations thereof, broom clean and in good condition (except for ordinary
wear and tear, repairs which are the obligation of Landlord under the terms of
this Lease, destruction to the Premises covered by Article 18 of this Lease, and
for alterations that Tenant has the right to remove or is obligated to remove
under Article 15, so long as Tenant repairs any damage to the Premises under the
provisions of this Article 25 or Article 15), and shall remove all of its
personal property including any signs, notices and displays. Tenant shall
perform all restoration made reasonably necessary by the removal of any such
improvements or alterations or personal property, prior to the expiration of the
Lease term. If any such removal would damage the Building structure, Tenant
shall give Landlord prior written notice thereof and Landlord may elect to make
such removal at Tenant's expense or otherwise to require Tenant to post security
for such restoration. Landlord may retain or dispose of in any manner any such
improvements or alterations or personal property that Tenant does not remove
from the Premises on expiration or termination of the term as allowed or
required by this Lease and title to any such improvements or alterations or
personal property that Landlord so elects to retain or dispose of shall vest in
Landlord. Tenant waives all claims against Landlord for any damage or loss to
Tenant arising out of Landlord's retention or disposition of any such
improvements, alterations or personal property and shall be liable to Landlord
for Landlord's costs of storing, removing and disposing of any such
improvements, alterations or personal property which Tenant fails to remove from
the Premises. Tenant shall indemnify, defend and hold Landlord harmless from all
damages, loss, cost and expense (including reasonable attorneys' fees) arising
out of or in connection with Tenant's failure to surrender the Premises in
accordance with this Section 25.1.
25.2. Holding Over. If Tenant holds over after the term hereof, such
tenancy shall be at sufferance only, and not a renewal hereof or an extension
for any further term, and in such case Basic Rent shall be payable in the amount
of one hundred fifty percent (150%) of the Basic Rent in effect as of the last
month of the term hereof and at the time specified in this Lease, Tenant shall
continue to pay Tenant's Share of Expenses, and such tenancy shall be subject to
every other term, covenant and agreement contained herein other than any
provisions for rent concessions, Landlord's Work, or optional rights of Tenant
requiring Tenant to exercise same by written notice (such as options to extend
the term of the Lease). The foregoing shall not, however,
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be construed as a consent by Landlord to any holding over by Tenant and Landlord
reserves the right to require Tenant to surrender possession of the Premises
upon expiration or termination of this Lease.
26. SURRENDER OF LEASE
26.1. The voluntary or other surrender of this Lease by Tenant, or a
mutual cancellation thereof, shall not work as a merger. Such surrender or
cancellation shall, at the option of Landlord, terminate all or any existing
subleases or subtenancies, or may, at the option of Landlord, operate as an
assignment to it of any or all such subleases or subtenancies. The delivery of
keys to the Premises to Landlord or its agent shall not, of itself, constitute a
surrender and termination of this Lease.
27. TRANSFER OF LANDLORD'S INTEREST
27.1. If Landlord sells or transfers its interest in the Premises
(other than a transfer for security purposes) Landlord shall be released from
all obligations and liabilities accruing thereafter under this Lease, if
Landlord's successor has assumed in writing Landlord's obligations under this
Lease. (As to obligations and liabilities of Landlord which have accrued and
remain unperformed at the time of such sale or transfer, Tenant's rights shall
be as provided in Section 23.1.) Any Security Deposit, prepaid Rent or other
funds of Tenant in the hands of Landlord at the time of transfer shall be
delivered to such successor and Tenant agrees to attorn to the purchaser or
assignee, provided all Landlord's obligations hereunder are assumed in writing
by such successor. Notwithstanding the foregoing, Landlord's successor shall not
be liable to Tenant for any such funds of Tenant which Landlord does not deliver
to the successor.
28. ASSIGNMENT AND SUBLETTING
28.1. Landlord's Consent Required. Except as otherwise expressly
provided in Section 28.12 hereof, Tenant shall not sell, assign, mortgage,
pledge, hypothecate or encumber this Lease (any such act being referred to
herein as an "assignment"), and shall not sublet the Premises or any part
thereof, without the prior written consent of Landlord in each instance, which
consent shall not be unreasonably withheld, and any attempt to do so without
such consent shall be voidable by Landlord and, at Landlord's election, shall
constitute a material default under this Lease.
28.2. Tenant's Application. If Tenant desires at any time to assign
this Lease (which assignment shall in no event be for less than its entire
interest in this Lease) or to sublet the Premises or any portion thereof (other
than to an Affiliate as provided in Section 28.12), Tenant shall submit to
Landlord at least thirty (30) days prior to the proposed effective date of the
transaction ("Proposed Effective Date"), in writing, a notice of intent to
assign or sublease, setting forth: (i) the Proposed Effective Date, which shall
be no less than thirty (30) nor more than ninety (90) days after the sending of
such notice; (ii) the name of the proposed subtenant or assignee; (iii) the
nature of the proposed subtenant's or assignee's business to be carried on in
the Premises; and (iv) a description of the terms and provisions of the proposed
sublease or assignment. Such notice shall be accompanied by (i) such financial
information as Landlord may reasonably request concerning the proposed subtenant
of assignee, including recent financial statements and bank references; (ii) a
conformed or photostatic copy of the proposed sublease or assignment agreement;
and (iii) any fee required under Section 28.9.
28.3. Landlord's Option To Recapture. If the proposed assignee or
subtenant, or any person that directly or indirectly controls, is controlled by,
or is under common control with, the proposed assignee or subtenant, or any
person who controls the proposed assignee or subtenant, is then an occupant of a
part of the Building or the Project and the proposed assignment or sublease by
Tenant would create a vacancy elsewhere in the Project, then, in lieu of
granting consent thereto, Landlord may reasonably, at its option upon written
notice to Tenant given within thirty (30) days after its receipt of the
above-described notice from Tenant, elect to recapture the entire Premises in
case of a proposed assignment or to recapture such portion of the Premises as
Tenant proposes to sublease and upon such election by Landlord, this Lease shall
terminate as to the portion of the Premises recaptured. In the event a portion
of the Premises is recaptured, the rent payable under this Lease and Tenant's
Share shall be proportionately reduced based on the rentable square footage
retained by Tenant and the rentable square footage leased by Tenant hereunder
immediately prior to such recapture and termination, and Landlord and Tenant
shall thereupon execute an amendment of this Lease in accordance therewith. If
Landlord recaptures only a portion of the Premises, Landlord shall construct and
erect at its sole cost and expense such partitions as may be required to
separate the space retained by Tenant from the space recaptured by Landlord;
provided, however, that said partitions need only be finished in Building
Standard condition. Landlord may, at its option, lease the recaptured portion of
the Premises to the proposed assignee or subtenant without liability to Tenant.
If Landlord does not elect to recapture pursuant to this Section 28.3, Tenant
may thereafter enter into a valid sublease with respect to the Premises,
provided Landlord, pursuant to this Article 28, consents thereto, and provided
further that (i) the sublease is executed within ninety (90) days
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after notification to Landlord of such proposal, and (ii) the rental therefore
is not less than that stated in such notification. Any termination as provided
in this Section 28.3 shall be subject to the written consent of any Mortgagee of
Landlord. The effective date of any such termination shall be the Proposed
Effective Date so long as Tenant has complied with the provisions of Section
28.2 above, and otherwise shall be as specified in Landlord's notice of
termination.
28.4. Approval/Disapproval Standards. In the event that Tenant complies
with the provisions of Section 28.2, and Landlord does not exercise an option
provided to Landlord under Section 28.3, Landlord's consent to a proposed
assignment or sublease shall not be unreasonably withheld or delayed. Landlord's
failure to respond within fifteen (15) business days after receipt of all
information Tenant is required to supply under Section 28.2 shall be deemed to
constitute Landlord's consent to the assignment or sublease on the terms stated
in Tenant's notice under Section 28.2. In determining whether to grant or
withhold consent to a proposed assignment or sublease, Landlord may consider any
reasonable factor. Without limiting what may be construed as a reasonable
factor, it is hereby agreed that any one of the following factors will be
reasonable grounds for disapproval of a proposed assignment or sublease:
28.4.1. Tenant has not complied with the requirements set forth in
Section 28.2 above;
28.4.2. In the case of any assignment of this Lease or a sublease
of more than 10,000 square feet of rentable area, the proposed assignee or
subtenant does not, in Landlord's reasonable judgment, have sufficient financial
worth, considering the responsibility involved;
28.4.3. The proposed assignee or subtenant does not, in Landlord's
reasonable judgment, have as good a reputation as is generally found among other
tenants in the Project who are in compliance with the terms of their respective
leases;
28.4.4. Landlord has had prior material, negative leasing
experience with the proposed assignee or subtenant;
28.4.5. The use of the Premises by the proposed assignee or
subtenant will not comply with the use permitted by this Lease;
28.4.6. In Landlord's reasonable judgment, the proposed assignee
or subtenant is engaged in a business, and the Premises, or the relevant part
thereof, will be used in a manner that is not in keeping with the then current
standards of the Building, or that will violate any restrictive or exclusive
covenant as to use contained in any other lease of space in the Building or the
Project;
28.4.7. The use of the Premises by the proposed assignee or
subtenant will violate any applicable law, ordinance or regulation;
28.4.8. The proposed assignment or sublease fails to include all
of the terms and provisions required to be included therein pursuant to this
Article 28; or
28.4.9. Tenant is then in default of any obligation of Tenant
under this Lease, and such default continues after the giving of any required
notice beyond the applicable cure period.
28.5. Approval/Disapproval Procedure. Landlord shall approve or
disapprove the proposed assignment or sublease by written notice to Tenant. If
Landlord reasonably denies a request for consent to a proposed sublease or
assignment, Landlord shall not be liable to the proposed assignee or subtenant,
or to any broker or other person claiming a commission or similar compensation
in connection with the proposed assignment or sublease. If Landlord approves the
proposed assignment or sublease, Tenant shall, prior to the Proposed Effective
Date, submit to Landlord all executed originals of the assignment or sublease
agreement and, in the event of a sublease, Landlord's reasonable and customary
consent to subletting form executed by Tenant and sublessee for execution by
Landlord. Provided such assignment or sublease agreement is in accordance with
the terms approved by Landlord, Landlord shall execute each original as
described above and shall retain two originals for its file and return the
others to Tenant. No purported assignment or sublease shall be deemed effective
as against Landlord and no proposed assignee or subtenant shall take occupancy
unless such document is delivered to Landlord in accordance with the foregoing.
28.6. Required Provisions. Any and all assignment or sublease
agreements shall (i) contain such terms as are described in Tenant's notice
under Section 28.2 above or as otherwise agreed by Landlord; (ii) prohibit
further assignments or subleases except with the consent of both Landlord and
Tenant, (iii) impose the same obligations and conditions on the assignee or
sublessee as are imposed on Tenant by this Lease except
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as to Rent and term or as otherwise reasonably consented to by Landlord; (iv) be
expressly subject and subordinate to each and every provision of this Lease, (v)
have a term that expires on or before the expiration of the term of this Lease;
(vi) provide that if Landlord succeeds to sublessor's position, Landlord shall
not be liable to sublessee for advance rental payments, deposits or other
payments which have not been actually delivered to Landlord by the sublessor,
and (vii) provide that Tenant and/or the assignee or sublessee shall pay
Landlord the amount of any additional costs or expenses incurred by Landlord for
repairs, maintenance or otherwise as a result of any change in the nature of
occupancy caused by the assignment or sublease. Any and all sublease agreements
shall also provide that in the event of termination, re-entry, or dispossession
by Landlord under this Lease, Landlord may, at its option, take over all of the
right, title and interest of Tenant as sublessor under such sublease, and such
subtenant shall, at Landlord's option, attorn to Landlord pursuant to the then
executory provisions of the sublease, except that Landlord shall not: (i) be
liable for any previous act or omission of Tenant under the sublease; (ii) be
subject to any offset not expressly provided in the sublease that theretofore
accrued to the subtenant against Tenant; or (iii) be bound by any previous
modification of such sublease or by any previous prepayment of more than one (1)
month's fixed rent or any additional rent then due.
28.7. Payment of Additional Rent Upon Assignment or Sublease. If
Landlord shall give its consent to any assignment of this Lease or to any
sublease of the Premises, Tenant shall, in consideration therefor, pay to
Landlord, as additional Rent, the following:
28.7.1. In the case of an assignment, an amount equal to fifty
percent (50%) of all sums and other consideration paid to Tenant by the assignee
for, or by reason of, such assignment (including, without limiting the
generality of the foregoing, all sums paid for the sale of Tenant's leasehold
improvements); and
28.7.2. In the case of a sublease, fifty percent (50%) of any
rents, additional charges, or other consideration payable under the sublease by
the subtenant to Tenant that are in excess of the Rent and Tenant's Share of
Expenses accruing during the term of the sublease in respect of the subleased
space (at the rate per square foot payable by Tenant hereunder) pursuant to the
terms hereof (including, without limiting the generality of the foregoing, all
sums paid for the sale or rental of Tenant's leasehold improvements).
28.8. The sums payable under Section 28.7 shall be calculated after
first deducting Tenant's reasonable, out-of-pocket costs incurred with respect
to the assignment or the sublease, as the case may be, but specifically
excluding attorneys' fees; provided, however, that any tenant improvement
allowances, monetary concessions and brokerage commissions paid for by Tenant
shall be recaptured by Tenant on an amortized basis over the term of the
assignment or sublease. The sums payable under Section 28.7.1 above shall be
paid to Landlord upon the effective date of the assignment. The sums payable
under Section 28.7.2 above shall be paid to Landlord as and when payable by the
sublessee to Tenant. Within fifteen (15) days after written request therefor by
Landlord, Tenant shall at any time and from time to time furnish evidence to
Landlord of the amount of all such sums or other consideration received or
expected to be received.
28.9. Fees for Review. Simultaneously with the giving of the notice
described in Section 28.2 above, Tenant shall pay to Landlord or Landlord's
designee a non-refundable fee in the amount of Three Hundred Dollars ($300.00)
as reimbursement for expenses incurred by Landlord in connection with reviewing
each such transaction. In addition to such reimbursement, if Landlord retains
the services of an attorney to review the transaction, Tenant shall pay to
Landlord the reasonable attorneys' fees incurred by Landlord in connection
therewith not to exceed One Thousand Dollars ($1,000) in any single instance.
Tenant shall pay such attorneys' fees to Landlord within fifteen (15) days after
written request therefor.
28.10. No Release of Tenant. No consent by Landlord to any assignment
or subletting by Tenant shall relieve Tenant of any obligation to be performed
by Tenant under this Lease, whether occurring before or after such consent,
assignment or subletting, including Tenant's obligation to obtain Landlord's
express prior written consent to any other assignment or subletting. In no event
shall any permitted subtenant assign its sublease, further sublet all or any
portion of its sublet space, or otherwise suffer or permit the sublet space, or
any part thereof, to be used or occupied by others, except upon compliance with,
and subject to the provisions of this Article 28. The acceptance by Landlord of
payment from any person other than Tenant shall not be deemed to be a waiver by
Landlord of any provision of this Lease or to be a consent to any subsequent
assignment or sublease, or to be a release of Tenant from any obligation under
this Lease.
28.11. Assumption of Obligations. Each assignee of Tenant shall assume
the obligations of Tenant under this Lease and shall be and remain liable
jointly and severally with Tenant for the payment of the Rent and the
performance of all the terms, covenants, conditions and agreements herein
contained on Tenant's part to be performed for the term of this Lease. No
assignment shall be binding on Landlord unless the assignee or Tenant delivers
to Landlord a counterpart of the instrument of assignment in recordable form
which contains
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a covenant of assumption by the assignee satisfactory in substance and form to
Landlord, and consistent with the requirements of this Article 28. The failure
or refusal of the assignee to execute such instrument of assumption shall not
release or discharge the assignee from its liability to Landlord hereunder.
Landlord shall have no obligation whatsoever to perform any duty to or respond
to any request from any sublessee, it being the obligation of Tenant to
administer the terms of its subleases.
28.12. Corporate or Partnership Transfers. This Article shall not apply
to assignments or subleases to a corporation (i) into or with which Tenant is
merged or consolidated; (ii) to which substantially all of Tenant's assets or
stock are transferred, or (iii) that controls, is controlled by, or is under
common control with Tenant (the entities described in preceding clause (i), (ii)
and (iii) being herein collectively called "Affiliates"), provided that, in any
of such events:
28.12.1. Any such assignment or sublease shall be subject to all
of the terms and provisions of this Lease, and such assignee or sublessee shall
assume, in a written document reasonably satisfactory to Landlord and delivered
to Landlord promptly upon the assignment or sublease, all the obligations of
Tenant under this Lease;
28.12.2. Tenant and the Guarantor shall remain fully liable for
all obligations to be performed by Tenant under this Lease; and
28.12.3. Tenant shall pay to Landlord or Landlord's designee,
promptly on demand, a non-refundable fee in the amount of Three Hundred Dollars
($300.00) as reimbursement for expenses incurred by Landlord in connection with
reviewing such transaction.
28.13. Assignment of Sublease Rents. Tenant immediately and irrevocably
assigns to Landlord, as security for Tenant's obligations under this Lease, all
rent from any subletting of all or any part of the Premises, and Landlord, as
assignee and as attorney-in-fact for Tenant for purposes hereof, or a receiver
for Tenant appointed on Landlord's application, may collect such rents and apply
same toward Tenant's obligations under this Lease; except that, until the
occurrence of an act of default by Tenant, Tenant shall have the right and
license to collect such rents.
29. ATTORNMENT
29.1. If any proceeding is brought for default under any ground or
underlying lease to which this Lease is subject, or in the event of foreclosure
or the exercise of the power of sale under any mortgage or deed of trust made by
Landlord covering the Premises, Tenant shall attorn to the successor upon any
such foreclosure or sale and shall recognize that successor as Landlord under
this Lease, provided such successor expressly agrees in writing to be bound to
all future obligations by the terms of this Lease, and, if so requested, Tenant
shall enter into a new lease with that successor on the same terms and
conditions as are contained in this Lease (for the unexpired term of this Lease
then remaining).
30. SUBORDINATION
30.1. Without the necessity of any additional document being executed
by Tenant for the purpose of effecting a subordination, but subject to Section
30.2 below, this Lease shall be subject and subordinate at all times to: (i) all
ground or underlying leases which may now exist or hereafter be executed
affecting the Premises, and (ii) the lien of any first mortgage or first deed of
trust which may now exist or hereafter be executed in any amount for which the
Premises, such ground or underlying leases, or Landlord's interest or estate in
any of them, is specified as security. Notwithstanding the foregoing, Landlord
shall have the right to subordinate or cause to be subordinated any such ground
or underlying leases or any such liens to this Lease. If any ground or
underlying lease terminates for any reason, Tenant shall, notwithstanding any
subordination, attorn to and become tenant of the successor in interest to
Landlord at the option of such successor in interest. Tenant covenants and
agrees to execute and deliver, upon demand by Landlord and in such commercially
reasonable form as may be required by commercial lenders, any documents
evidencing the priority or subordination of this Lease with respect to any such
ground or underlying leases or the lien of any such first mortgage, or first
deed of trust, and specifically to execute, acknowledge and deliver to Landlord
from time to time within thirty (30) days after written request to do so a
subordination of lease, or a subordination of deed of trust, in substantially
the form set forth in Exhibit D or Exhibit D-1, respectively, attached hereto,
or such other form as may be commercially reasonable and customarily required by
commercial lenders and failure of Tenant to do so shall be a material default
hereunder.
30.2. Landlord shall undertake reasonable efforts to obtain a
non-disturbance, recognition and attornment agreement from its existing
Mortgagee in such Mortgagee's reasonable and customary form. If
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Landlord is unable to obtain such non-disturbance, recognition and attornment
agreement from its existing Mortgagee prior to the Commencement Date, then
Landlord and Tenant shall establish a blocked, interest- bearing account with a
banking institution licensed to do business in California and selected by
Landlord. Tenant shall timely deposit all payments of Rent into the blocked bank
account until whichever of the following events first occurs: (a) Landlord
obtains and delivers to Tenant a reasonable and customary form of
non-disturbance, recognition and attornment agreement signed by the Mortgagee
existing on the date of this Lease; (b) Landlord causes this Lease to achieve
priority over the deed of trust, mortgage or other interest held by the
Mortgagee existing on the date of this Lease; (c) the term of this Lease
expires; or (d) this Lease terminates prior to the scheduled expiration other
than as a result of foreclosure of the prior mortgage, deed of trust or other
interest held by the Mortgagee existing on the date of this Lease. Upon the
occurrence of any event described in the preceding clauses (a), (b), (c) or (d),
all Rent theretofore paid into the blocked bank account, together with interest
earned thereon, shall be released to Landlord, and Tenant shall thereafter pay
all Rent directly to Landlord. If this Lease terminates before the occurrence of
any of the events described in the preceding clauses (a), (b), (c) or (d), and
such termination results from the foreclosure of a mortgage, deed of trust or
other interest held by the Mortgagee existing on the date of this Lease, all
Rent theretofore paid into the blocked bank account, together with interest
thereon, shall be released to Tenant. Funds may not be withdrawn from the
blocked account by Landlord or Tenant except as provided in the preceding
sentence. In case of any failure or delay in Tenant's payment of Rent into the
blocked account, Landlord shall have all rights and remedies available where
Rent is payable directly to Landlord. Furthermore, as a condition to the
subordination of this Lease to any future mortgage, deed of trust or ground or
underlying lease, Landlord shall obtain from the mortgagee, beneficiary or
lessor a non-disturbance, recognition and attornment agreement in such form as
is then reasonably and customarily used by institutional lenders.
31. ESTOPPEL CERTIFICATE
31.1. Tenant shall from time to time within thirty (30) days after
prior written notice from Landlord execute, acknowledge and deliver to Landlord
a statement in writing in the form set forth in Exhibit E attached hereto, or
such other form as may be commercially reasonable and customarily required by
(i) certifying that this Lease is unmodified and in full force and effect (or,
if modified, stating the nature of such modification and certifying that this
Lease, as so modified, is in full force and effect) and the date to which the
Rent and other charges are paid in advance, if any; (ii) acknowledging that
there are not, to Tenant's knowledge, any uncured defaults on the part of
Landlord hereunder (or specifying such defaults if they are claimed); and (iii)
containing such other information and matters as are reasonably set forth in
such form. Any such statement may be conclusively relied upon by any prospective
purchaser or encumbrancer of the Premises. Tenant's failure to deliver such
statement within such time shall be conclusive upon Tenant that this Lease is in
full force and effect, without modification except as may be represented by
Landlord, that there are no uncured defaults in Landlord's performance, and that
not more than one (1) month's Rent has been paid in advance. Failure of Tenant
to so deliver such statement shall be a material default hereunder.
31.2. In connection with any sale of all or substantially all of the
assets or stock of Tenant, Landlord shall within thirty (30) days after written
request execute, acknowledge and deliver to Tenant a statement in writing: (i)
certifying that this Lease is unmodified and in full force and effect (or, if
modified, stating the nature of such modification and certifying that this
Lease, as so modified, is in full force and effect); and (ii) acknowledging that
there are not, to Landlord's knowledge, any defaults by Tenant hereunder (or
specifying such defaults if they are claimed). Any such statement may be
conclusively relied upon by any bona fide purchaser of all or substantially all
of Tenant's stock or assets.
32. INTENTIONALLY DELETED
33. QUIET ENJOYMENT
33.1. So long as Tenant pays all Rent and other sums due under this
Lease, performs its covenants and obligations under this Lease and recognizes
any successor to Landlord in accordance with the terms of this Lease, Tenant
shall lawfully and quietly have, hold and enjoy the Premises without hindrance
or molestation by Landlord or anyone claiming by, through or under Landlord,
subject, however, to all the provisions of this Lease.
34. WAIVER OF REDEMPTION BY TENANT
34.1. Tenant hereby waives for Tenant and for all those claiming under
Tenant all right now or hereafter existing to redeem by order or judgment of any
court or by any legal process or writ, Tenant's right of occupancy of the
Premises after any termination of this Lease.
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35. WAIVER OF LANDLORD, TENANT'S PROPERTY
35.1. Landlord shall, within thirty (30) days after written request
from Tenant, execute and deliver to Tenant any statement in form reasonably
acceptable to Landlord as may be required by any supplier, lessor, installment
seller or chattel mortgagee in connection with the installation in the Premises
of any personal property or trade fixtures of Tenant, pursuant to which Landlord
shall agree to waive any rights it may have or may acquire with respect to any
such property, provided in all cases that such supplier, lessor, installment
seller or chattel mortgagee expressly agrees in writing that: (i) it will remove
at its sole cost and expense all such property from the Premises before the
expiration or termination of the Lease and if it fails to do so within ten (10)
days after written request from Landlord it shall be deemed to have waived any
and all rights it may have had to such property; (ii) prior to making any such
removal it will advise Landlord in writing of the date and time of such removal
and will at the time of such removal, allow a representative of Landlord to be
present; (iii) it will promptly and diligently and at its sole cost and expense
repair any and all damage to the Premises attributable to such removal and shall
restore the Premises to substantially the same condition it was in prior to such
removal; (iv) it will allow Landlord to select the person or persons who will
effect such removal, repair and restoration, and will bear the costs and
expenses thereof; (v) it will, if Landlord chooses not to exercise its rights
under (iv) above, cause a performance and completion bond, satisfactory to
Landlord, to be furnished to Landlord with regard to the work of such removal,
repair and restoration; (vi) it will promptly pay Landlord any costs and
expenses incurred by Landlord in connection with the enforcement of Landlord's
rights hereunder, including reasonable attorneys' fees, and will indemnify and
hold Landlord harmless against any and all claims, loss, cost or expense arising
out of or in connection with such removal, repair and restoration; (vii) it will
pay Landlord interest on any outstanding amounts payable by it to Landlord at
the "Agreed Rate" (as hereinafter defined); (viii) it will not record such
statement without Landlord's prior written consent which Landlord may withhold
in its sole discretion and (ix) it will not assign its rights or delegate its
duties under such statement without Landlord's prior written consent, which
consent shall not be unreasonably withheld or delayed.
36. RULES AND REGULATIONS
36.1. The Rules and Regulations attached hereto as Exhibit F are
expressly made a part hereof. Tenant agrees to comply with such Rules and
Regulations and any reasonable, nondiscriminatory amendments, modifications or
additions thereto as may hereafter be adopted and published by notice to tenants
in the Building, and to cause its agents, contractors and employees to comply
therewith, and agrees that the violation of any of them shall constitute a
default by Tenant under this Lease. If there is a conflict between the Rules and
Regulations and any of the provisions of this Lease, the provisions of this
Lease shall prevail. Provided Landlord makes reasonable efforts to cause other
tenants and occupants to comply with the Rules and Regulations, Landlord shall
not be responsible to Tenant for the non-performance by any other tenant or
occupant of the Building or of the Project of any of the Rules and Regulations.
37. NOTICES
37.1. Any notice, demand or communication required or permitted to be
given hereunder to Landlord by Tenant shall be in writing and (i) personally
served or (ii) deposited in the United States mails, duly registered or
certified with postage fully prepaid thereon, addressed to Landlord at
Landlord's address as set forth in Section 1.9 hereof, or to such other address
or such other parties as Landlord may from time to time designate, or (iii) sent
to such address by a nationally recognized overnight courier service with
receipted delivery. Any notice, demand or communication required or permitted to
be given hereunder to Tenant by Landlord may be (i) mailed as above stated to
Tenant's address as set forth in Section 1.10 hereof, (ii) sent to such address
by a nationally recognized overnight courier service with receipted delivery, or
(iii) delivered personally to Tenant at the address of the Premises. Copies of
any notice to Tenant shall be sent to Tenant's legal department at the address
set forth in Section 1.10 hereof. Either party may by written notice similarly
given designate a different address for notice purposes, except that Landlord
may in any event use the Premises as Tenant's address for notice purposes.
Notice shall be effective when delivered in case of personal delivery, or on the
next business day in case of delivery by overnight courier service, or on the
third business day after mailing in the case of notice by registered or
certified mail (or on such earlier date of delivery as is shown on the return
receipt).
38. WAIVER
38.1. No delay or omission by a party hereto in the exercise of any
right or remedy for any default by the other party shall impair such right or
remedy or be construed as a waiver. The receipt and acceptance by Landlord of
delinquent payments shall not constitute a waiver of any other default, and
shall not constitute a waiver of timely payment of the particular payment
involved. No act or conduct of Landlord, including,
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without limitation, the acceptance of keys to the Premises, shall constitute an
acceptance of the surrender of the Premises by Tenant before the expiration of
the term. Only an express notice to such effect from Landlord to Tenant shall
constitute acceptance of the surrender of the Premises sufficient to terminate
this Lease. A party's consent to or approval of any act by the other party
requiring the first party's consent or approval shall not constitute a consent
or approval of any subsequent act by the second party. Any waiver of any default
must be in writing and shall not be a waiver of any other default concerning the
same or any other provision of this Lease.
39. MISCELLANEOUS
39.1. Execution by Landlord. The submission of this document for
examination and negotiation does not constitute an offer to lease, or a
reservation of, or an option for, the Premises. This document becomes effective
and binding only upon execution by Tenant and by Landlord and upon Tenant's
delivery to Landlord of the Guaranty, in the form set forth as Exhibit G, duly
executed by the "Guarantor" identified in Section 1.12 above. No act or omission
of any employee or agent of Landlord or of Landlord's broker shall alter, change
or modify any of the provisions hereof.
39.2. Landlord and Tenant. As used in this Lease, the words "Landlord"
and "Tenant" include the plural as well as the singular. Words used in the
neuter gender include the masculine and feminine and words in the masculine or
feminine gender include the neuter. If there is more than one person or entity
constituting Landlord or Tenant, the obligations imposed hereunder upon Landlord
or Tenant are joint and several. If Tenant consists of a husband and wife, the
obligations of Tenant hereunder extend individually to the sole and separate
property of each of them as well as to their community property. The obligations
contained in this Lease to be performed by Landlord shall be binding on
Landlord's successors and assigns only during their respective periods of
ownership of the Premises.
39.3. Brokers. Tenant shall hold Landlord harmless from all damages
(including reasonable attorneys' fees and costs) resulting from any claims that
may be asserted against Landlord by any broker, finder, or other person with
whom Tenant has or purportedly has dealt, except as set forth at Section 1.11.
Landlord shall pay a commission to the brokers identified in Section 1.11
pursuant to a separate agreement. If Tenant exercises its first Option to Extend
and Landlord fails to pay to Cushman & Wakefield a commission therefor in
accordance with that certain commission agreement dated January 17, 1995, Tenant
may upon not less than thirty (30) days' prior notice to Landlord, pay the
commission due and owing to Cushman & Wakefield and offset the amount thereof
against the Rent next payable by Tenant under this Lease.
39.4. Signs. Tenant shall not place or permit to be placed in or upon
the Premises, where visible from outside the Premises, or outside the Premises
on any part of the Building or Project, any signs, notices, drapes, shutters,
blinds, or displays of any type, without the prior written consent of Landlord.
Landlord reserves the right in its sole discretion to place and locate on the
roof or exterior of the Building, and in any area of the Project not leased to
Tenant, any signs, notices, displays and similar items as Landlord deems
appropriate. Landlord shall provide Tenant, at no cost to Tenant but as part of
Expenses, with at least thirty-five (35) strips on the Building directory board
to be located in the lobby of the Building and every other directory board
designed to accommodate the names of tenants and their personnel. Tenant will be
permitted group and alphabetical listings on such directory board.
39.5. Name of Building. Tenant shall not use the name of the Building
or the Project for any purpose other than the address of the business to be
conducted by Tenant in the Premises. Tenant shall not use any picture of the
Building or the Project in its advertising, stationery or in any manner so as to
imply that the entire Building is leased by Tenant. Landlord expressly reserves
the right at any time to change the name of the Building or Project without in
any manner being liable to Tenant therefor; provided, however, that so long as
Tenant or its Affiliate actually occupies the Premises, Landlord will not name
the Building for a direct competitor of Tenant. Landlord shall not use Tenant's
name, logo or tradename except with Tenant's prior written consent, which
consent shall not be unreasonably withhold or delayed; provided, however, that
Landlord may use Tenant's name in promotional materials which list tenants of
the Project.
39.6. Parking. During the term of this Lease, Tenant shall only be
entitled to such use of parking spaces in the parking areas located in the
Project as shall be confirmed in writing by the parties, and absent any written
agreement to the contrary, parking for Tenant and its employees, agents,
customers, invitees and licensees shall be on a first-come, first-served basis,
at rates and upon other terms and conditions as may be established from time to
time by Landlord or Landlord's operator of the parking areas. Parking rates may
be hourly, weekly or monthly, or such other rate system as Landlord deems
advisable, and Tenant acknowledges that its employees shall not be entitled to
park in such parking areas located in and about the Building which may from time
to time be designated for visitors of the Building. Landlord may also designate
areas for
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assigned, reserved or employee parking either within the parking areas located
in and about the Building, or in other areas reasonably close thereto. Landlord
shall have the right to change any such designated parking areas from time to
time. Tenant acknowledges that neither Landlord nor any agent of Landlord has
made any representation or warranty as to the suitability of the parking areas
for the conduct of Tenant's business.
39.7. Guarantee. Any guarantee of this Lease shall be in the form set
forth at Exhibit G. If this Lease shall have been guaranteed, any such guarantee
shall be deemed a material part of the consideration for Landlord's execution of
this Lease.
39.8. Approval of Landlord's Mortgagee. Tenant acknowledges that this
Lease is subject to the approval of Landlord's Mortgagee, as evidenced by such
Mortgagee's execution of a nondisturbance, recognition and attornment agreement
with Tenant.
39.9. Landlord's Financing. In connection with Landlord's financing of
the Premises or any other part of the Project, if Landlord's Mortgagee requires
Tenant to execute, acknowledge and deliver to Landlord or Landlord's Mortgagee
certain documents as may be ordinarily and customarily required by such lender
in connection with financing, including without limitation those documents as
may be required under Articles 30 and 31 of this Lease, Tenant shall execute,
acknowledge and deliver the requested documents within thirty (30) days after
receipt of Landlord's request therefor, and Tenant's failure to do so shall
constitute a default without necessity of further notice or right to cure. No
limitation on Landlord's recovery of consequential damages contained elsewhere
in this Lease shall apply to a default by Tenant under this Section 39.9.
39.10. Memorandum of Lease. Concurrently with the execution and
delivery of this Lease by Landlord and Tenant, Landlord shall execute and
notarize a short form Memorandum of Lease, in recordable form, and shall deliver
same to Tenant for Tenant's recording in the form attached hereto as Exhibit
"I", and Tenant shall execute, acknowledge and deliver to Landlord an undated
quit claim deed to Landlord. Tenant's quit claim deed to Landlord shall become
effective when Tenant's rights and interests under this Lease and in and to the
Premises are of no further force or effect, at which time Landlord is authorized
to date and record the quit claim deed. Tenant shall pay, or reimburse Landlord
for, all costs and expenses (including, without limitation, transfer taxes)
incurred in connection with recordation of the Memorandum of Lease or quit claim
deed.
39.11. Nonrecordability of Lease. Tenant agrees that in no event shall
this Lease be recorded.
39.12. Matters of Record. This Lease and Tenant's rights hereunder are
subject and subordinate in all respects to matters affecting Landlord's title
recorded in the official records of the county recorder's office for the county
in which the Project is located prior or subsequent to the date of execution of
this Lease, and is expressly subject and subordinate to the following:
Declaration of Restrictions dated September 15, 1978, and recorded on October 2,
1978, as Document No. 78-1093326 in the Official Records of Los Angeles County,
State of California, as amended, and Reciprocal Parking Agreement dated January
3, 1979, and recorded on January 19, 1979, as Document No. 79-86214 in the
Official Records of Los Angeles County, State of California, as amended. Tenant
agrees that as to its leasehold estate it, and all persons in possession or
holding under it, will conform with and will not violate any such covenants,
conditions and restrictions, or other matters of record.
39.13. Severability. If any provision of this Lease shall, to any
extent, be determined by a court of competent jurisdiction to be invalid or
unenforceable, the remainder of this Lease shall not be affected thereby, every
other term and provision of this Lease shall be valid and enforceable to the
fullest extent permitted by law, and a suitable and equitable provision shall be
substituted for the invalid or unenforceable provision in order to carry out, as
far as may be valid and enforceable, the intent and purpose of such invalid or
unenforceable provision.
39.14. Construction. All provisions hereof, whether covenants or
conditions, shall be deemed to be both covenants and conditions. The definitions
contained in this Lease shall be used to interpret this Lease.
39.15. Interest. Except as expressly provided otherwise in this Lease,
any amount due to Landlord which is not paid when due shall bear interest from
the date due at the prime commercial rate of interest charged from time to time
by Citibank N.A. plus two percent (2%) per annum, but not to exceed the maximum
rate of interest allowable under the law (the "Agreed Rate"). Payment of such
interest shall not excuse or cure any default by Tenant under this Lease.
39.16. Binding Effect; Choice of Law. Except as expressly provided
otherwise in this Lease, all of the provisions hereof shall be binding upon and
inure to the benefit of the parties hereto and their respective
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heirs, legal representatives, successors and assigns. This Lease shall be
governed by the laws of the State of California.
39.17. Waiver of Trial by Jury. LANDLORD AND TENANT EACH HEREBY WAIVE
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER
AGAINST THE OTHER ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS LEASE OR TENANT'S USE OR OCCUPANCY OF THE PREMISES,
INCLUDING ANY CLAIM OF INJURY OR DAMAGE, AND ANY EMERGENCY AND OTHER STATUTORY
REMEDY WITH RESPECT THERETO. LANDLORD AND TENANT ALSO AGREE THAT THE VENUE OF
ANY SUCH ACTION, PROCEEDING OR COUNTERCLAIM SHALL BE IN THE CITY AND COUNTY OF
LOS ANGELES, STATE OF CALIFORNIA.
39.18. Time; Rights Cumulative. Time is of the essence of this Lease
and each and every provision hereof, except as may be expressly provided
otherwise. All rights and remedies of the parties shall be cumulative and
non-exclusive of any other remedy at law or in equity.
39.19. Inability to Perform. This Lease and the obligations of Landlord
and Tenant hereunder shall not be affected or impaired because Landlord or
Tenant is unable to fulfill any of its obligations hereunder or is delayed in
doing so, if such inability or delay is caused by reason of force majeure,
strike, labor troubles, acts of God, acts of government, unavailability of
materials or labor, or any other cause beyond the control of such party
(collectively, "Force Majeure"). Notwithstanding the foregoing, a party's
inability to perform for financial reasons shall not constitute Force Majeure.
Furthermore, the provisions of this Section 39.19 shall not: (i) extend the
Outside Date under Section 2.6; (ii) delay any right of Tenant to claim an
abatement of Rent where specifically permitted by this Lease or to exercise any
right to take a Required Action under Section 14.1.1; or (iii) except as
otherwise provided herein, impair the right of either party to terminate this
Lease.
39.20. Corporate Authority. If Tenant is a corporation, each individual
executing this Lease on behalf of Tenant represents and warrants that he or she
is duly authorized to execute and deliver this Lease on behalf of Tenant, and
that Tenant is qualified to do business in the State of California, and shall
deliver appropriate certification to that effect if requested.
39.21. Intentionally Omitted.
39.22. Submittal of Financial Statement. At any time and from time to
time during the term of this Lease, within fifteen (15) days after request
therefor by Landlord, Tenant shall supply to Landlord and/or any Mortgagee a
current annual report of Guarantor or such other financial information as may be
reasonably required by any such party.
39.23. Riders. Clauses, plats, addenda, and riders, if any, that are
signed by Landlord and Tenant and affixed to this Lease, are a part hereof.
40. TENANT'S PROVISION OF CABLE TELEVISION SERVICES
40.1. Grant. Landlord hereby grants to Tenant the exclusive right to
provide cable television services within the Building (the "Cable TV Service").
Furthermore, so long as Tenant has the exclusive right to provide the Cable TV
Service, Landlord shall not authorize any other provider of competing television
services to solicit tenants in the Building. Tenant's exclusive right to provide
the Cable TV Service shall end upon the earlier of: (i) expiration of the term
of this Lease; (ii) termination of this Lease prior to scheduled expiration of
the term; or (iii) cessation of Tenant's right, franchise or license to supply
cable television services within the City of Santa Monica. In addition, Landlord
may eliminate Tenant's exclusive right to provide Cable TV Service, allowing
Tenant to provide the Cable TV Service on a nonexclusive basis, where Landlord
determines that the rates charged to users of the Cable TV Service in the
Building exceed a commercially reasonable rate for such service.
40.2. Installation of System. Tenant shall install in the Building, at
Tenant's sole cost and expense, a cable television distribution system including
cable, amplifiers, outlets and all other necessary equipment including security
equipment for the provision of Tenant's Cable TV Service within the Building
(the "System"). Installation of any elements of the System within space occupied
by other tenants of the Building shall only be performed with the prior written
consent of each such tenant. The System shall have sufficient capacity to
provide the Cable TV Service to all tenants of the Building who are willing to
enter into Tenant's standard subscription agreement therefor. Except as
otherwise provided by federal law, the System (including all equipment installed
in the spaces occupied by tenants of the Building) shall remain the property of
Tenant.
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40.3. Approval of Location. Prior to installing the System, Tenant
shall provide Landlord with complete plans and specifications showing the types
and location of equipment constituting the System. Approval of Tenant's plans
and specifications for the System shall be subject to Landlord's sole but
reasonable discretion. Except as required in connection with maintenance and
repair of the Building, or for the preparation of vacant space for occupancy,
Landlord will not disconnect or otherwise alter or damage any of the System.
40.4. Maintenance and Repair. Tenant agrees to maintain and repair the
System so the same remains in proper operating condition and does not materially
interfere with ordinary use and occupancy of the Building. Without limiting the
generality of the foregoing, Tenant shall take all necessary precautions to
avoid damage to or interference with telecommunications, voice or other data
transmission equipment located within or serving the Building and shall act
promptly to correct any interruption of the Cable TV Service. Landlord
acknowledges that Tenant is the only entity authorized to maintain or repair the
System. Tenant shall, at Tenant's sole cost and expense, repair any damage to
the Building or the Common Areas of the Project resulting from Tenant's
activities in connection with the provision of the Cable TV Service.
40.5. Removal of System. Upon termination of Tenant's right to provide
Cable TV Service, Tenant shall remove all elements of the System and restore any
damage to the Building and/or the Common Areas resulting from such removal.
40.6. Services Provided. The Cable TV Service to be provided by Tenant
pursuant to this Article 40 may vary from time to time at the discretion of
Tenant, provided the services available to the Building shall correspond to
those available to cable television subscribers in the City of Santa Monica.
40.7. Charges. Tenant may charge individual tenants and occupants of
the Building who become subscribers to the Cable TV Service such rates and fees
as Tenant, in its discretion, deems appropriate. Landlord shall have no
liability to Tenant for failure of tenants or other occupants of the Building to
pay such fees or charges.
40.8. Limitations. Nothing herein shall be construed as authorizing
Tenant to provide any service to the Building other than the Cable TV Service.
Without limiting the foregoing, Tenant is not authorized to provide
telecommunications, voice or data transmission services to other tenants or
occupants of the Building.
41. INTENTIONALLY OMITTED
42. INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS
42.1. This Lease contains all of the agreements of the parties hereto
with respect to any matter covered or mentioned in this Lease, and no prior
agreement, negotiations, brochures, arrangements, or understanding pertaining to
any such matter shall be effective for any purpose unless expressed herein. No
provisions of this Lease may be amended or added to except by an agreement in
writing signed by the parties hereto or their respective successors in interest.
43. OPTIONS TO EXTEND TERM
43.1. Grant of Options to Extend Term. Landlord hereby grants Tenant
two (2) options ("Option(s) to Extend Term") to extend the Lease term specified
in Section 1.3 hereof (the "Initial Term"), in accordance with the provisions of
this Article 43.
43.2. Option(s) to Extend Term.
43.2.1. Extended Terms. Each Option to Extend Term shall extend
the term of the Lease for an additional sixty (60) months ("Extended Term(s)"),
with the first Extended Term commencing upon the expiration of the Initial Term
and the second Extended Term commencing upon the expiration of the first
Extended Term.
43.2.2. Terms for Extended Terms. If Tenant exercises an Option
to Extend Term, then all of the terms contained in this Lease shall continue in
full force and effect during each such Extended Term, except as follows:
43.2.2.1. The Basic Rent for the first Extended Term
shall equal the Basic Rent during the Initial Term. The Basic Rent for the
second Extended Term, however, shall equal ninety-five percent (95%) of the then
"Fair Market Rental Value of the Premises" (as defined below), including
escalations, as of the commencement of the second Extended Term, but in no event
less than the Basic Rent specified in Section 1.4
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above. The term "Fair Market Rental Value of the Premises" shall be Landlord's
good faith calculation of the rental and all other monetary payments and other
considerations of value and escalations that are then being agreed to by
Landlord and by non-related third parties in written lease agreements, taking
into account the age of the Building, the size and type of the Premises, the
location and floor levels of the Premises, the quality of construction of the
Building and the Premises, the services provided under the terms of this Lease,
the rental then being obtained for new or renewal leases of space comparable to
the Premises by landlords of comparable office buildings in the vicinity of the
Project located on Santa Monica Boulevard or Olympic Boulevard west of the 405
Freeway, and all other factors that would be relevant to a third party not
affiliated with Landlord desiring to lease the Premises in determining the
rental such party would be willing to pay therefor.
43.2.2.2. The Base Year for the first Extended Term shall
be calendar year 1995. The Base Year for the second Extended Term shall be
determined as part of the Fair Market Rental Value of the Premises.
43.2.2.3. Tenant shall have no further right to extend
the term of this Lease other than the two (2) Options to Extend Term described
herein.
43.2.3. Extended Term Notice. Tenant shall exercise each Option
to Extend Term, if at all, by delivering a written notice to Landlord ("Extended
Term Notice") at least nine (9) months, but not more than twelve (12) months,
before the expiration of the Initial Term or the expiration of the first
Extended Term, as the case may be. If Tenant does not deliver the Extended Term
Notice within the required time period, the Option to Extend Term shall lapse,
Tenant shall have no right to extend the Lease term, and this Lease shall expire
upon the expiration of the Initial Term or the expiration of the first Extended
Term, as the case may be, unless earlier terminated pursuant to the provisions
of this Lease. If Tenant fails to validly exercise the first Option to Extend
Term, Tenant's second Option to Extend Term shall terminate immediately and be
of no further force or effect.
43.2.4. Extension Rental Notice. Within a reasonable time after
Landlord receives the Extended Term Notice for the second Extended Term, if any,
Landlord shall provide Tenant written notice stating the Fair Market Rental
Value of the Premises for the second Extended Term ("Extension Rental Notice").
Within twenty (20) days after the date Landlord delivers the Extension Rental
Notice to Tenant, Tenant shall, by written notice delivered to Landlord, either
(a) accept the Fair Market Rental Value of the Premises stated in the Extension
Rental Notice ("Notice of Acceptance") or (b) reject the Fair Market Rental
Value of the Premises stated in the Extension Rental Notice ("Notice of
Rejection"), or (c) disagree with Landlord's determination of the Fair Market
Rent Value of the Premises, which notice must provide Tenant's good faith
determination of the Fair Market Rental Value of the Premises ("Notice of
Disagreement").
43.2.5. Notice of Acceptance. If Tenant delivers the Notice of
Acceptance in the manner and within the time frames herein provided, this Lease
shall be deemed extended for the second Extended Term at the Basic Rent and upon
the terms specified in this Article 43 without the need for any further notice
or documentation. If Tenant does not deliver to Landlord the Notice of
Acceptance, the Notice of Rejection or the Notice of Disagreement within said
twenty (20) day period, the same shall constitute Tenant's Notice of Acceptance
and Landlord shall be deemed to have received the Notice of Acceptance upon the
twentieth (20th) day after Landlord delivers the Extension Rental Notice.
43.2.6. Notice of Rejection. If Tenant delivers the Notice of
Rejection to Landlord within said twenty (20) day period, then this Lease shall
expire upon the expiration date of the first Extended Term, unless earlier
terminated in accordance with the provisions of this Lease.
43.2.7. Notice of Disagreement. If Tenant provides Landlord with
the Notice of Disagreement within the time period hereinabove provided, then the
parties shall have thirty (30) days ("Negotiation Period") after the date
Landlord receives the Notice of Disagreement in which to negotiate and agree
upon the Fair Market Rental Value of the Premises. During the Negotiation
Period, Landlord and Tenant shall share in good faith the information upon which
each relied to formulate their respective Fair Market Rental Value calculations.
If, within the Negotiation Period, the parties agree upon the Fair Market Rental
Value of the Premises, then the authorized officers of each party shall execute
a letter of agreement ("Rent Agreement Letter") stating the agreed Fair Market
Rental Value of the Premises. If the parties are unable to mutually agree upon
the Fair Market Rental Value of the Premises for the second Extended Term during
the Negotiation Period, then this Lease shall expire at the end of the first
Extended Term.
43.3. Documentation. If, within thirty (30) days following Landlord's
receipt of (a) the Extended Term Notice with respect to the first Extended Term,
or (b) the Notice of Acceptance or the executed Rent Agreement Letter with
respect to the second Extended Term, either party requests that both parties
enter into
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an amendment documenting the Extended Term, and Basic Rent during the Extended
Term, then Landlord shall prepare an amendment to this Lease documenting the
Extended Term, Basic Rent for the Extended Term and any other change to the
Lease required pursuant to this Article 43 ("Extended Term Amendment"). The
Extended Term Amendment shall be submitted to Tenant for execution and Tenant
shall have thirty (30) days following receipt thereof from Landlord in which to
execute and deliver the Extended Term Amendment to Landlord and Landlord shall
have thirty (30) days after receipt of the same in which to execute the Extended
Term Amendment and to deliver one fully-executed copy to Tenant. The failure of
either or both Landlord or Tenant to execute the Extended Term Amendment shall
not have the effect of nullifying the Extended Term Notice or the Notice of
Acceptance, as the case may be, and this Lease shall nevertheless be extended
for the applicable Extended Term as herein provided.
43.4. Personal Option. The second Option to Extend Term is personal to
the Tenant named on page 1 of this Lease. If Tenant assigns, mortgages, pledges,
hypothecates or encumbers this Lease or its interest in the Premises or sublets
all or any portion of the Premises before the exercise of the second Option to
Extend Term, then the second Option to Extend Term shall lapse. However,
Tenant's second Option to Extend Term shall not be affected in case of an
assignment or sublease to an Affiliate.
43.5. Additional Conditions. The Options to Extend Term shall be
exercisable by Tenant on the express condition that at the time Tenant exercises
each Option to Extend Term and at all times before, and upon the date of, the
commencement of the applicable Extended Term Tenant shall not be in default this
Lease as to any monetary obligations or any material non-monetary obligations.
44. RIGHT OF FIRST OFFER
44.1. Definitions.
44.1.1. Subject Space. Leasable space located in the building
(exclusive of the Premises) is sometimes referred to as the "Subject Space."
44.1.2. First Offer Space. The term "First Offer Space" means all,
or a portion, of the Subject Space subject to the expiration of any (a) lease,
sublease or other written agreement permitting entities to occupy space existing
as of the date of this Lease, and (b) for which there are no existing or prior
rights of expansion, extension or renewal which third parties may hold for the
Subject Space or any portion thereof existing as of the date of this Lease.
Notwithstanding the foregoing, (i) Landlord may offer space to Tenant as "First
Offer Space" up to six (6) months in advance of the same becoming available as
First Offer Space if Landlord has knowledge of the space becoming available in
advance of the expiration or termination of a lease or other agreement for such
space (e.g., where a tenant has an option to extend with six (6) months' prior
written notice and such right lapses because such tenant did not exercise such
right, Landlord may then offer such space to Tenant in fulfillment of its
obligations under this Article 44), and (ii) Landlord may hereafter enter into a
lease, sublease or other written agreement permitting entities to occupy space
for the purpose of extending a tenancy or subtenancy existing as of the date of
this Lease, in which case the same shall not be deemed to have expired for
purposes of the preceding clause (a).
44.2. Right of First Offer. Subject to the limitations hereinbelow
expressed, before entering into a lease with any person or entity for First
Offer Space, Landlord shall first offer to lease to Tenant the First Offer Space
subject to, and upon all of the terms, covenants and conditions set forth in
this Article 44 ("Right of First Offer"). This Right of First Offer is subject
and subordinate to all existing rights granted to other tenants as specified in
clauses (a) and (b) of Section 44.1.2. Landlord may simultaneously give a Notice
of First Offer to Tenant and all other tenants holding existing rights which are
prior to Tenant's Right of First Offer, in which case Tenant's acceptance
thereof shall be subject to non-exercise of the rights of first offer prior to
Tenant.
44.2.1. Exception For Current Vacancy. Notwithstanding any
contrary provision of this Article 44, Landlord shall not be obligated to give
Tenant a Right of First Offer as to any Subject Space which is vacant and
available for lease as of the date of this Lease unless and until such currently
vacant and available Subject Space is first leased to a third party and
thereafter becomes vacant and available at a time when Tenant's Right of First
Offer is in effect.
44.2.2. Continuity and Duration. For the first forty-eight (48)
months of the Initial Term, if Tenant delivers (or is deemed to have delivered)
a "First Offer Rejection Notice," as defined in Section 44.4 below, with respect
to a given First Offer Space and such First Offer Space is hereafter leased to a
third party and then upon the expiration or earlier termination of such third
party lease, Tenant again shall have the Right of Offer if Landlord intends to
enter into another lease of such First Offer Space within the first forty-eight
(48) months of the Initial Term. Tenant's rights under this Article 44 shall
expire at the end of the forty- eighth (48)
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month of the initial Term unless prior to such time Tenant has validly exercised
its first Option to Extend Term pursuant to Article 43. If Tenant does validly
exercise the first Option to Extend Term, Tenant's rights under this Article 44
shall continue for the balance of the Initial Term and for the first Extended
Term, except that if at any time after the first forty-eight (48) months of the
Initial Term, Tenant delivers (or is deemed to have delivered) a First Offer
Rejection Notice, or if Tenant delivers a Notice of Counter-Offer and the
parties do not thereafter reach agreement with respect to such First Offer
Space, Tenant's rights under this Article 44 shall end as to the First Offer
Space described in the Notice of First Offer to which Tenant's First Offer
Rejection Notice pertains.
44.3. Term. The term with respect to the First Offer Space shall be
coterminous with the date of expiration or earlier termination of this Lease.
44.4. Rent for First Offer Space. The First Offer Space shall be
offered to Tenant at the Fair Market Rental Value of the First Offer Space. The
term "Fair Rental Market Value of the First Offer Space" shall be Landlord's
good faith determination of the prevailing fair market rental rate for the First
Offer Space, delivered in as-is condition, based on recent leases of space in
the Project comparable to the First Offer Space for a term comparable to the
unexpired term of this Lease.
44.5. Notice of First Offer. Landlord shall provide Tenant in writing
the First Offer and the terms of the First Offer for such First Offer Space
("Notice of First Offer"). Within ten (10) days after receiving the Notice of
First Offer, Tenant shall notify Landlord in writing that: (i) Tenant accepts
the Notice of First Offer ("First Offer Acceptance Notice"); or (ii) Tenant
rejects the Notice of First Offer and, consequently, waives its then right to
such First Offer Space ("First Offer Rejection Notice"); or (iii) Tenant commits
to lease the First Offer Space on such other terms and conditions as are
specified in Tenant's notice ("Notice of Counter-Offer"). If Tenant does not for
any reason deliver the First Offer Acceptance Notice or the First Offer
Rejection Notice or the Notice of Counter-Offer to Landlord within the time
frames herein contained, the same shall constitute Tenant's First Offer
Rejection Notice. The First Offer Acceptance Notice or the First Offer Rejection
Notice, as the case may be, shall be irrevocable, and shall be binding upon both
Landlord and Tenant without the need for any further documentation. Tenant's
Notice of Counter-Offer shall likewise be irrevocable for a period of five (5)
business days after Landlord's receipt thereof.
44.5.1. First Offer Acceptance Notice. If Tenant delivers the
First Offer Acceptance Notice as specified in above, then Landlord shall prepare
a document ("First Offer Space Document") setting forth the terms by which
Tenant shall lease the First Offer Space, as set forth in this Article 44. The
First Offer Space Document shall be submitted to Tenant for execution and Tenant
shall have twenty (20) days in which to execute and deliver to Landlord the
First Offer Space Document. Landlord shall have twenty (20) days following
receipt of the First Offer Space Document from Tenant in which to execute and
deliver one (1) fully-executed copy to Tenant. The failure of either or both
Landlord or Tenant to execute the First Offer Document shall not have the effect
of nullifying Tenant's First Offer Acceptance Notice, and the First Offer Space
shall nevertheless be leased by Tenant as herein provided.
44.5.2. First Offer Rejection Notice. If Tenant delivers the First
Offer Rejection Notice as specified above, then Landlord shall have the right to
lease such First Offer Space to any third party.
44.5.3. Notice of Counter-Offer. If Tenant delivers a Notice of
Counter-Offer and Landlord timely accepts the same, then Landlord shall prepare
a First Offer Space Document and the parties shall proceed in accordance with
Section 44.5 above. If Tenant delivers a Notice of Counter-Offer and Landlord
does not immediately accept the same, Landlord shall within five (5) business
days after receipt of Tenant's Notice of Counter-Offer commence good faith
negotiations with Tenant in an effort to reach agreement on mutually acceptable
terms and conditions for the lease of such First Offer Space. However, in no
event shall Landlord be required to continue such negotiations for more than
five (5) business days.
44.6. Effect of Default. If Tenant is in default under this Lease on
(a) the date Landlord is otherwise obligated to provide Tenant with the Notice
of First Offer, Landlord (in its sole discretion) shall not be obligated to
provide Tenant with the Notice of First Offer in which case the rights of Tenant
to such First Offer Space under this Article 44 shall be void and of not further
force or effect, or (b) the date Tenant is required to accept delivery of
possession of the First Offer Space, then Landlord (in its sole discretion)
shall not be obligated to deliver the First Offer Space to Tenant in which case
the rights of Tenant to such First Offer Space under this Article 44 shall be
void and of no further force or effect. The foregoing rights of Landlord shall
be in addition to any other rights and remedies available to Landlord at law or
in equity. If such First Offer Space again becomes available while Tenant's
rights under this Article 44 remain in effect and Tenant is not in default, then
Tenant shall again have a Right of First Offer on such space, subject to the
provisions of this Article 44.
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44.7. First Offer Personal. The First Offer granted herein is personal
to Tenant named on page 1 of this Lease. If Tenant assigns, mortgages, pledges,
hypothecates or encumbers this Lease or its interests in the Premises or sublets
any portion of the Premises (other than to an Affiliate) (i) on or before the
date Landlord is otherwise obligated to provide Tenant with the Notice of First
Offer, the rights of Tenant to the First Offer Space under this Article 44 shall
be void and of no further force or effect, or (ii) on or before the date Tenant
is required to accept delivery of possession of the First Offer Space, then
Landlord (in its sole discretion) shall not be obligated to deliver possession
of the First Option Space to Tenant in which case the rights of Tenant, its
sublessee, successor or transferee to the First Offer Space under this Article
44 shall be void and of no further force or effect.
44.8. First Floor Offer Space Leased In 1995. Notwithstanding the
foregoing, as to any First Offer Space which is leased to Tenant in 1995, the
Basic Rent for such First Offer Space shall equal $1.70 per rentable square foot
of the First Offer Space, the Base Year for the First Offer Space shall be 1995,
and the Construction Allowance for the First Offer Space, calculated on a per
usable square foot basis, shall equal the product of thirty-five cents ($0.35)
multiplied by the number of full months remaining in the Initial Term as of the
date Tenant commences paying Rent for such First Offer Space.
45. ENVIRONMENTAL HAZARDS
45.1. Landlord's Representation. With the understanding that Landlord
has made no environmental site assessment of the Premises or the Project,
Landlord represents and warrants that Landlord has no actual knowledge of any
Hazardous Materials in or on the Premises or the Project that violates
Environmental Requirements, as defined in Section 45.6.2 below.
45.2. Landlord's Indemnity. Landlord shall indemnify and hold Tenant
(together with its officers, directors, stockholders, partners, beneficial
owners, trustees, employees, agents, contractors and attorneys) (collectively,
the "Tenant Parties") harmless from and against any and all Environmental
Damages, as defined in Section 45.6.3 below (excluding in any event, however,
any consequential damages), which may be asserted by any person or entity
(including any government agency) or which the Tenant may sustain or be put to
on account of (i) the presence or release of any Hazardous Materials upon, in or
from the Premises or the Project during the term caused by the action or default
of Landlord or any employee, contractor or agent of Landlord, (ii) the
activities or other action or inaction of Landlord or any employee, contractor
or agent of Landlord in violation of Environmental Requirements, and (iii) the
breach of any of Landlord's obligations under this Article.
45.3. Tenant's Covenants. Tenant shall not (either with or without
negligence) cause or permit the escape, disposal or release of any Hazardous
Materials. Tenant shall not allow the storage or use of Hazardous Materials in
any manner not sanctioned by law or by the highest standards prevailing in the
industry for the storage and use of such Hazardous Materials, nor allow to be
brought into the Project any such materials or substances except to use in the
ordinary course of Tenant's business, and then only after written notice is
given to Landlord of the identity of such Hazardous Materials. If any lender or
governmental agency shall ever require testing to ascertain whether or not there
has been any release of Hazardous Materials, then the reasonable costs thereof
shall be reimbursed by Tenant to Landlord upon demand if such requirement arises
due to the presence of Hazardous Materials which are used, stored, generated,
produced or disposed of by Tenant, or any subtenant of the Premises or the
agents, employees, contractors, licensees or invitee of either of them
(collectively "Tenant's Agents"). In addition, Tenant shall execute affidavits,
representations and the like from time to time at Landlord's request concerning
Tenant's best knowledge and belief regarding the presence of Hazardous Materials
on the Premises, and Tenant shall promptly deliver to Landlord copies of any
notices, orders or other communications received from any governmental agency or
official affecting the Premises and concerning alleged violations of the
Environmental Requirements.
45.4. Tenant's Indemnity. Tenant shall indemnify and hold Landlord
(together with its officers, directors, stockholders, partners, beneficial
owners, trustees, employees, agents, contractors, attorneys, and Mortgagees)
harmless from and against any and all Environmental Damages which may be
asserted by any person or entity (including any government agency) or which the
indemnified parties may sustain or be put to an account of (i) the presence or
release of any Hazardous Material upon, in or from the Premises during the Term
and during any period when Tenant, or Tenant's Agents are occupying the Premises
or any part thereof, unless caused by the action or default of Landlord,
Landlord's employees, agents or contractors, (ii) the presence or release of any
Hazardous Material upon, in or from the Property caused by the action or default
of Tenant or Tenant's Agents, (iii) the activities or other action or inaction
of Tenant or Tenant's Agents in violation of Environmental Requirements, and
(iv) the breach of any of Tenant's obligations under this Article.
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<PAGE> 53
45.5. Interruption In Use. If there shall be a release of Hazardous
Materials in the Project, and such release was not caused, in whole or in part,
by the acts, omissions, negligence or default of Tenant or Tenant's Agents, and
is not the result of a casualty or a taking (for which the provisions of
Articles 18 and 19, respectively, shall control), and such release results in
the Premises being untenantable by Tenant for its operations therein for a
period of more than one hundred eighty (180) consecutive days, Tenant may
terminate this Lease by written notice to Landlord given prior to the Premises
becoming tenantable again.
45.6. Definitions. The following terms as used herein shall have the
meanings set forth below:
45.6.1. "Hazardous Materials" shall mean any substance (i) which
is or becomes defined as Hazardous Substance, Hazardous Waste, Hazardous
Material or Oil under the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. Section 6901 et seq., as amended, any applicable state
or local laws, and the regulations promulgated thereunder, as same may be
amended from time to time, or (ii) which is toxic, explosive, corrosive,
flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise
hazardous to health or the environment and which is or becomes regulated and the
presence of which requires investigation or remediation pursuant to any
applicable law.
45.6.2. "Environmental Requirements" shall mean all applicable
law, the provisions of any and all approvals, and the terms and conditions of
this Lease insofar as same relate to the releases, maintenance, use, storage,
containment, transportation, disposal or generation of Hazardous Materials,
including without limitation those pertaining to reporting, licensing,
permitting, health and safety of persons, investigation, containment,
remediation, and disposal.
45.6.3. "Environmental Damages" shall mean all liabilities,
injuries, losses, claims, damages (whether special, consequential or otherwise),
settlements, attorneys' and consultants' fees, fines and penalties, interest and
expenses, and costs of environmental site investigations, reports and cleanup,
including without limitation costs incurred in connection with: any
investigation or assessment of site conditions or of health of persons using the
Building or the Project; risk assessment and monitoring; any cleanup, remedial,
removal or restoration work required by any governmental agency or recommended
by Landlord's environmental consultant; any decrease in value of the Project;
any damage caused by loss or restriction of rentable or usable space in the
Project; or any damage caused by adverse impact on marketing or financing of the
Project.
46. WHEN PAYMENT IS DUE
46.1. Whenever a payment is required to be made by one party to the
other under the Lease, but a specific date for payment or a specific number of
days within which payment is to be made is not set forth in the Lease, or the
words "immediately", "promptly" and/or "on demand", or their equivalent, are
used to specify when such payment is due, then such payment shall be due thirty
(30) days after the party which is entitled to such payment sends written notice
to the other party demanding such payment.
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<PAGE> 54
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
the day and year first above written.
LANDLORD: BARCLAY CURCI INVESTMENT COMPANY,
a California general partnership
By: SC ENTERPRISES,
a California limited partnership,
a general partner
By: SHURL CURCI,
a general partner
By: Illegible
-------------------------
Roberta P. Gilligan,
his attorney-in-fact
TENANT: CENTURY SOUTHWEST CABLE TELEVISION, INC.,
a Delaware corporation
By: Illegible
--------------------------------------
Name:
------------------------------------
Title: President
By:
--------------------------------------
Name:
------------------------------------
Title: Secretary
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<PAGE> 55
EXHIBIT A
DESCRIPTION OF PREMISES
Suite 2001
3000 Ocean Park Boulevard ("R")
Santa Monica, California
Exhibit A
Page 1 of 2
<PAGE> 56
EXHIBIT A
DESCRIPTION OF PREMISES
Suite 3010
3000 Ocean Park Boulevard ("R")
Santa Monica, California
Exhibit A
Page 2 of 2
<PAGE> 57
EXHIBIT A-1
DESCRIPTION OF PROJECT
EXHIBIT A-1
<PAGE> 58
EXHIBIT B
VERIFICATION OF TERM AND INITIAL RENT
RE: Lease dated _____________________________ between _________________________
____________________________________________________________________("Landlord")
and_____________________________________________________________________________
_____________________________________________________________________ ("Tenant")
for premises in _______________________________________________________________.
Tenant hereby verifies that the information stated below is correct and further
acknowledges and accepts possession of the Premises.
Area: ____________________________(rentable/usable/gross) sq. ft.
Commencement Date: __________________________________________________________
Termination Date: _________________________________________________________
Options: __________________________________________________________
Initial Rent: __________________________________________________________
Address for Notices: __________________________________________________________
__________________________________________________________
__________________________________________________________
__________________________________________________________
__________________________________________________________
Billing Address: __________________________________________________________
__________________________________________________________
__________________________________________________________
__________________________________________________________
__________________________________________________________
ATTN: ________________________________________
Telephone: (___)_________________________________________
Federal Tax ID No.: __________________________________________________________
By: _________________________________
Title: ______________________________
Date: ________________________, 19__
EXHIBIT B
<PAGE> 59
EXHIBIT C
CONSTRUCTION PROVISIONS
These Construction Provisions shall set forth the terms and conditions
relating to the construction of the tenant improvements in the Premises. These
Construction Provisions are essentially organized chronologically and address
the issues of the construction of the Premises, in sequence. as such issues will
arise during the actual construction of the Premises. All capitalized terms used
but not defined herein shall have the meanings given such terms in the Lease.
All references in these Construction Provisions to Articles or Sections of "this
Lease" shall mean the relevant portion of Articles 1 through 46 of this Lease to
which these Construction Provisions are attached as Exhibit C and of which these
Construction Provisions form a part, and all references in these Construction
Provisions to Sections of "these Construction Provisions" shall mean the
relevant portions of Sections 1 through 6 of these Construction Provisions.
SECTION 1
LANDLORD'S INITIAL CONSTRUCTION IN THE PREMISES
1.1 Base Building as Constructed by Landlord. Landlord has constructed,
at its sole cost and expense, in accordance with all applicable codes and laws
(collectively, the "Laws") in effect at the time such construction was
completed, the base building (i) of the Premises and (ii) of the floors of the
Building on which the Premises is located (collectively, the "Base Building").
Tenant has inspected the Premises and the Base Building and agrees to accept the
same in their currently existing condition, "AS IS" and "WITH ALL FAULTS," and
Landlord shall have no obligation to alter or improve the Premises or the Base
Building, except that Landlord shall, at Landlord's cost (except as otherwise
provided in these Construction Provisions with respect to the work described in
Section 1.1.4 below), perform the work described in Sections 1.1.1 through 1.1.5
of these Construction Provisions.
1.1.1 Exterior Walls and Windows. Landlord shall cause the curtain
wall and exterior windows to be properly sealed and leak-free. Such work shall
be performed on an "as needed" basis after reasonable prior notice from Tenant
of the need therefor.
1.1.2 Electrical Room. Prior to the Commencement Date, Landlord
shall seal any penetrations in the Building's electrical room to comply with
fire safety requirements.
1.1.3 Public Restrooms. Landlord shall prior to the Commencement
Date perform any work in the restroom facilities on the second and third floors
which may be required to comply with disabled access laws, including the
Americans With Disabilities Act.
1.1.4 Public Corridors. Prior to the Commencement Date, if required
as a condition to issuance of permits needed for the Tenant Improvements (as
defined in Section 2.1 of these Construction Provisions), or for issuance of a
certificate of occupancy for the Premises, Landlord shall perform such work as
may be required to upgrade to current fire rating standards the Building's
public corridor walls.
1.1.5 In addition to any work as may be required under Section
1.1.4 of these Construction Provisions, Landlord shall, at its sole cost,
perform such modifications to the Base Building as may be required for both
issuance and sign-off of Tenant's building permits for the Tenant Improvements,
provided that: (i) Landlord shall not be required by this Section 1.1.5 to
undertake any Base Building modifications which are required due to Tenant's
specific use of the Premises or any Tenant Improvements which are not consistent
with ordinary office use; (ii) Landlord shall not be required to undertake any
such modifications until a reasonable time after written notice from Tenant of
the need therefor (which notice shall be delivered by Tenant within three (3)
business days after Tenant or Tenant's Agents first learn that such
modifications are needed); and (iii) Landlord shall not be responsible for any
unavoidable damage to the Tenant Improvements which results from such
modifications.
EXHIBIT C - Page 1
<PAGE> 60
SECTION 2
TENANT IMPROVEMENTS
2.1 Tenant Improvement Allowance. Tenant shall be entitled to a
one-time tenant improvement allowance (the "Tenant Improvement Allowance") in an
amount equal to Twenty-One and 21/100 Dollars ($21.21) per usable square foot of
the Premises for the costs relating to the initial design and construction of
Tenant's improvements set forth in the "Approved Working Drawings", as defined
in Section 3.4 of these Construction Provisions (the "Tenant Improvements").
2.2 Disbursement of the Tenant Allowance.
2.2.1 Tenant Improvement Allowance Items. Except as otherwise set
forth in these Construction Provisions, the Tenant Improvement Allowance shall
be disbursed by Landlord only for the following items and costs (collectively
the "Tenant Improvement Allowance Items"):
2.2.1.1 Payment of the fees of: (i) the "Architect," as
defined in Section 3.1 of these Construction Provisions, which fees shall not
exceed $2.15 per usable square foot of the Premises; (ii) the Project Management
Consultant, as defined in Section 3.1 of these Construction Provisions, which
fees shall not exceed $1.00 per usable square foot of the Premises; and (iii)
the "Engineers," as defined in Section 3.1 of these Construction Provisions;
2.2.1.2 The payment of plan check, permit and license fees
relating to construction of the Tenant Improvements;
2.2.1.3 The cost of construction of the Tenant Improvements,
including, without limitation, testing and inspection costs, and contractors'
fees and general conditions;
2.2.1.4 The cost of any changes in the Base Building work
when such changes are required by the Construction Drawings, such cost to
include all direct architectural and/or engineering fees and expenses incurred
in connection therewith;
2.2.1.5 The cost of any changes to the Construction Drawings
or Tenant Improvements required by Law to the extent not caused by Landlord's
failure to comply with its obligations hereunder;
2.2.1.6 Sales and use taxes and Title 24 fees;
2.2.1.7 Costs of relocation from Tenant's current premises to
the Premises, which costs shall not exceed $1.00 per usable square foot of the
Premises;
2.2.1.8 The cost of voice and data wiring within the
Premises;
2.2.1.9 The cost of signs installed by Tenant in accordance
with the provisions of Section 39.4 of the Lease;
2.2.1.10 The Landlord Supervision Fee, as defined in Section
4.4 of these Construction Provisions; and
2.2.1.11 Costs of demolishing the existing improvements in
the Premises in accordance with a demolition plan approved by Landlord.
2.2.1.12 Cost incurred by Landlord in performing the work
described in Section 1.1.4 of these Construction Provisions for upgrading the
public corridor walls which abut or are within the Premises. However, if the
cost of upgrading the public corridor walls which abut or are within the
Promises exceeds $20,000.00, the amount in excess thereof shall be paid by
Landlord and such excess amount shall not be a Tenant Improvement Allowance
Item.
2.2.1.13 All other costs approved by or expended in
connection with the construction of the Tenant Improvements, as reasonably
approved by Landlord.
2.2.2 Disbursement of Tenant Improvement Allowance. Prior to and
during the construction of the Tenant Improvements, as the case may be, Landlord
shall make monthly disbursements of the Tenant
EXHIBIT C - Page 2
<PAGE> 61
Improvement Allowance for Tenant Improvement Allowance Items for the benefit of
Tenant and shall reimburse monies expended by Tenant as follows.
2.2.2.1 Monthly Disbursements. On or before the first day
(the "Submittal Date") of each calendar month commencing with the first calendar
month following the execution of the Lease, Tenant shall deliver to Landlord:
(i) a request for payment of the "Contractor," as that term is defined in
Section 4.1.1 of these Construction Provisions, approved by Tenant, on the
standard AIA (G702) form showing, by trade, the percentage of completion of the
Tenant Improvements in the Premises and detailing the portion of the work
completed; (ii) executed conditional mechanic's lien releases from all of
"Tenant's Agents," as that term is defined in Section 4.1.2 of these
Construction Provisions, which shall comply with the appropriate provisions of
California Civil Code Section 3262(d); and (iii) all other information
reasonably requested in good faith by Landlord. Tenant's request for payment
shall be deemed Tenant's acceptance and approval of the work furnished and/or
the materials supplied as set forth in Tenant's payment request vis-a-vis the
Landlord. On or before the twenty-ninth (29th) day of each such calendar month
(the "Payment Date"), and assuming Landlord receives the applicable information
described in items (i) through (iii), above, and unconditional lien releases, as
applicable, for all work paid for from the Tenant Improvement Allowance as of
the previous Payment Date, Landlord shall make direct payment to the Contractor
of the amount Tenant has requested on the preceding Submittal Date, less the
"Retained Sum" and "Tenant's Share" (as said terms are defined in Section
2.2.2.2 of these Construction Provisions).
2.2.2.2 Retained Sum and Tenant's Share. The "Retained Sum"
is an amount equal to ten percent (10%) of each request by Tenant for
disbursement to the Contractor of the Tenant Improvement Allowance. The
aggregate amount of such retentions shall be known as the "Final Retention." The
term "Tenant's Share" means, if the estimated total cost of all work to be
performed under Tenant's contract with the Contractor (including the cost of any
"Tenant Change," as defined in Section 3.5 of these Construction Provisions)
exceeds the Tenant Improvement Allowance, the ratio that the cost in excess of
the Tenant Improvement Allowance bears to the estimated total cost of all work
to be performed by the Contractor.
2.2.2.3 Landlord's Right to Dispute. Landlord's payment of
any amounts called for under these Construction Provisions shall not be deemed
Landlord's approval or acceptance of the work furnished or materials supplied as
set forth in Tenant's payment request. Landlord may dispute any request for
payment based on material noncompliance of any work with the Approved Working
Drawings or due to any materially substandard work as identified in good faith
by Landlord. In the event that Landlord identifies any material noncompliance
with the Approved Working Drawings or substandard work, Tenant shall be provided
a detailed statement identifying such material noncompliance or substandard
work, and Landlord may withhold payment therefor until Landlord receives
reasonable evidence that such noncompliance or substandard work has been
corrected. If Tenant disputes Landlord's determination of material noncompliance
or substandard work, the matter shall be resolved by the architects engaged by
Tenant and Landlord (HOK and P. Murray, respectively). If the parties'
architects are unable to mutually agree on a proper resolution of the dispute
within ten (10) business days, the deadlock shall be resolved by Nadel
Partnership acting as a neutral arbitrator. The decision of Nadel Partnership,
which shall be limited to the question whether Contractor's work is not in
material compliance with the Approved Workings Drawings or is substandard, shall
be binding on Landlord and Tenant. Each party shall pay the fees and expenses of
its own architect; and the fees of Nadel Partnership shall be party whose
position in regard to the compliance and quality of Contractor's work was not
sustained by Nadel Partnership. Landlord's obligation to disburse the Tenant
Improvement Allowance under this Section 2.2.2 shall be suspended during any
period when Tenant is disputing Landlord's determination of material
noncompliance or substandard work as herein provided.
2.2.2.4 Final Retention. Subject to the provisions of these
Construction Provisions, a check for the Final Retention payable to Contractor
shall be delivered by Landlord to Tenant following the completion of
construction of the Premises, provided that (i) Tenant delivers to Landlord (A)
properly executed mechanics lien releases in compliance with both California
Civil Code Section 3262(d)(2) and either Section 3262(d)(3) or Section
3262(d)(4), (B) an executed verification in the form of Exhibit B to the Lease,
(C) a copy of all building permits with all sign-offs executed, a certificate
from Tenant's Architect that the Tenant Improvements were constructed per the
Approved Working Drawings and are 100% completed, (E) one set of "as built"
reproducible drawings (consisting of the Approved Working Drawings marked by
Contractor and/or HOK to reflect field modifications), and (F) copies of all
manufacturers' warranties, owner's manuals, etc., for equipment or materials
installed by Contractor and a warranty statement, naming Landlord as the
beneficiary of such warranty, from the Contractor guaranteeing all Tenant
Improvements for at least one year from the date of substantial completion
thereof; and (ii) Landlord has reasonably determined that no materially
substandard work exists which materially and adversely affects the mechanical,
electrical, plumbing, heating, ventilating and air conditioning, life-safety or
other systems of the Building, the curtain wall of the Building, or the
structure or exterior appearance of the Building.
EXHIBIT C - Page 3
<PAGE> 62
2.2.2.5 Ownership of Improvements. All Tenant Improvement
Allowance Items which are permanently affixed to the Premises for which the
Tenant Improvement Allowance has been made available shall be deemed Landlord's
property under the terms of Article 15 of this Lease.
2.2.3 Failure to Disburse Tenant Improvement Allowance. In the
event that Landlord fails to fulfill its obligation to disburse the Tenant
Improvement Allowance in accordance with the terms of Section 2.2.2 above,
following ten (10) business days notice from Tenant and Landlord's failure to
cure within such period, Tenant shall have the following rights, which rights
shall be cumulative and in addition to any rights or remedies available to
Tenant under this Lease, at law or in equity: (i) to cease performance of all or
any portion of the work of the Tenant Improvements, or (ii) continue to perform
the work of the Tenant Improvements (following a cessation pursuant to item (i),
above, or otherwise), and offset any unpaid portions of the Tenant Improvement
Allowance plus interest at the Agreed Rate (as defined in Section 39.15 of this
Lease) against Tenant's obligation for rent next coming due under this Lease.
2.2.4 Reimbursement of Allowance Items. If any portion of the
Tenant Improvement Allowance remains unused after Landlord has disbursed any sum
authorized by Section 2.2.1.12 of these Construction Provisions as a Tenant
Improvement Allowance Item and has made the disbursements to Contractor called
for under Section 2.2.2 of these Construction Provisions (including payment of
the Final Retention), and Landlord has received the Landlord Supervision Fee
called for under Section 4.4 of these Construction Provisions, the unused Tenant
Improvement Allowance shall be used to reimburse Tenant for any Tenant
Improvement Allowance Items for which Tenant has made payment. Landlord shall
reimburse such amounts to Tenant, up to the unused balance of the Tenant
Improvement Allowance, promptly after Tenant delivers to Landlord (i) receipted
invoices evidencing full payment of all items for which Tenant seeks
reimbursement, (ii) unconditional lien releases from all of Tenant's Agents
(where such releases are customarily required or necessary to assure no
attachment of mechanics' or materialmen's liens), and (iii) all other
information reasonably requested in good faith by Landlord.
2.2.5 Unused Allowances. In the event there remains any unused
portion of the Tenant Improvement Allowance after Landlord's disbursements under
Sections 2.2.1.12 and 2.2.2 and reimbursements under Section 2.2.4 (the "Unused
Allowance"), Tenant may credit any Unused Allowance, in an amount not to exceed
$2.50 per usable square foot of the Premises, against the payments coming due
under this Lease at least thirty (30) days after Landlord's final payment under
Section 2.2.4 above. Any Unused Allowance in excess of $2.50 per usable square
foot of the Premises shall be retained by Landlord.
SECTION 3
CONSTRUCTION DRAWINGS
3.1 Selection of Architect/Construction Drawings. Tenant shall retain
HOK (the "Architect") to prepare the Construction Drawings. Notwithstanding the
foregoing, Tenant may, at its option, retain an architect other than HOK,
subject to Landlord's reasonable approval, which approval shall be granted or
denied by Landlord within five (5) business days after Tenant has submitted the
proposed alternative architect to Landlord, to prepare the Construction
Drawings. Tenant shall retain Jack Spound of Corporate Real Estate Solutions (or
such other person or entity as Tenant may select, subject to Landlord's
reasonable approval) as project management consultant (the "Project Management
Consultant"). Tenant shall retain engineering consultants or shall cause
Contractor to select subcontractors qualified to provide design/build services
(referred to herein, in either case, as the "Engineers"). The Engineers, who
shall be subject to Landlord's reasonable approval, shall prepare all plans and
engineering working drawings relating to the structural, mechanical, electrical,
plumbing, HVAC, life safety, and sprinkler work of the Tenant Improvements. The
plans and drawings to be prepared by Architect and the Engineers hereunder shall
be known collectively as the "Construction Drawings." All Construction Drawings
shall be subject to Landlord's approval pursuant to the terms set forth in
Sections 3.2 and 3.3 below. Tenant and Architect shall verify, in the field, the
dimensions and conditions as shown on the relevant portions of the Building
plans, and Tenant and Architect shall be solely responsible for the same, and
Landlord shall have no responsibility in connection therewith. Landlord's review
of the Construction Drawings as set forth in this Section 3, shall be for its
sole purpose and shall not imply Landlord's review of the same, or obligate
Landlord to review the same, for quality, design compliance with laws or other
like matters.
3.2 Final Space Plan. Tenant and the Architect shall prepare the final
space plan for Tenant Improvements in the Premises (collectively, the "Final
Space Plan"), and shall deliver the Final Space Plan to Landlord for Landlord's
approval. Landlord shall, within five (5) business days after Landlord receives
such Final Space Plan, (i) approve the Final Space Plan, (ii) approve the Final
Space Plan subject to specified
EXHIBIT C - Page 4
<PAGE> 63
conditions to be complied with when the Final Working Drawings are submitted by
Tenant to Landlord, or (iii) disapprove the Final Space Plan and return the same
to Tenant with requested revisions; provided, however, that Landlord shall only
disapprove the Final Space Plan for reasonable and material reasons, including
without limitation, (i) an adverse effect on the structural integrity of the
Building; (ii) noncompliance with Laws; (iii) an adverse effect on the systems
and equipment of the Building; or (iv) an adverse effect on the exterior
appearance of the Building (individually or collectively, a "Design Problem").
If Landlord disapproves the Final Space Plan, Tenant may resubmit the Final
Space Plan to Landlord at any time, and Landlord shall approve or disapprove of
the resubmitted Final Space Plan, based upon the criteria set forth in this
Section 3.2, within two (2) business days after Landlord receives such
resubmitted Final Space Plan.
3.3 Final Working Drawings. Tenant, the Architect and the Engineers
shall complete the architectural and engineering drawings for the Premises in a
form which is complete to allow subcontractors to bid on the work and to obtain
all applicable permits (collectively, the "Final Working Drawings") and shall
submit the same to Landlord for Landlord's approval. The Final Working Drawings
may be submitted in one or more stages at one or more times, provided that
Tenant shall ultimately supply Landlord with two (2) completed copies signed by
Tenant of such Final Working Drawings. Landlord shall, within five (5) business
days after Landlord receives the Final Working Drawings, either (i) approve the
Final Working Drawings, (ii) approve the Final Working Drawings subject to
specified conditions to be satisfied by Tenant prior to submitting the Approved
Working Drawings for permits as set forth in Section 3.4, below, if the Final
Working Drawings do not comply with the Final Space Plan or contain a Design
Problem, or (iii) disapprove and return the Final Working Drawings to Tenant
with requested revisions if the Final Working Drawings do not comply with the
Final Space Plan or contain a Design Problem. If Landlord disapproves the Final
Working Drawings, Tenant may resubmit the Final Working Drawings to Landlord at
any time, and Landlord shall approve or disapprove of the resubmitted Final
Working Drawings, based upon the criteria set forth in this Section 3.3, within
two (2) business days after Landlord receives such resubmitted Final Working
Drawings. Should Landlord fail to respond within the five (5) business day or
two (2) business day period provided in this Section 3.3, as applicable, such
failure shall be deemed to constitute Landlord's approval under this Section
3.3.
3.4 Permits. The Final Working Drawings shall be approved by Landlord
(the "Approved Working Drawings") prior to the commencement of the construction
of the Tenant Improvements. Architect shall submit the Approved Working Drawings
to the appropriate municipal authorities for all applicable building permits
necessary to allow Contractor to commence and fully complete the construction of
the Tenant Improvements (excluding only engineering permits related to the
design/build work, which permits Tenant shall procure on a timely basis). Tenant
shall be responsible for obtaining any building permit or certificate of
occupancy for the Premises; provided, however, that Landlord shall cooperate
with Tenant in executing permit applications and performing other ministerial
acts reasonably necessary to enable Tenant to obtain any such permit or
certificate of occupancy.
3.5 Change Orders. In the event Tenant desires to change the Approved
Working Drawings, Tenant shall deliver notice (the "Drawing Change Notice") of
the same to Landlord, setting forth in detail the changes (the "Tenant Change")
Tenant desires to make to the Approved Working Drawings. Landlord shall, within
five (5) business days of receipt of the Drawing Change Notice, either (i)
approve the Tenant Change, or (ii) disapprove the Tenant Change and deliver a
notice to Tenant specifying in detail the reasons for Landlord's disapproval;
provided, however, that Landlord may only disapprove of the Tenant Change if the
Tenant Change contains a Design Problem. Landlord's failure to respond within
the five (5) business day period specified in this Section 3.5 shall be deemed
to constitute Landlord's approval of that particular Tenant Change. Tenant shall
pay Tenant's share (if any) of costs which arise in connection with such Tenant
Change.
SECTION 4
CONSTRUCTION OF THE TENANT IMPROVEMENTS
4.1 Selection and Approval of Contractors.
4.1.1 The Contractor. Tenant shall retain a licensed general
contractor (the "Contractor"), as contractor for the construction of the Tenant
Improvements, which Contractor shall be selected by Tenant, but subject to
Landlord's approval, which approval shall not be unreasonably withhold or
conditioned, and which approval or refusal shall be granted or denied within
five (5) business days after Tenant has submitted the name of the contractor and
relevant financial data and business references for the contractor; provided
that Landlord hereby approves Corporate Contractors as a potential Contractor.
EXHIBIT C - Page 5
<PAGE> 64
4.1.2 Tenant's Agents. All subcontractors, laborers, materialmen
and suppliers used by Tenant (such subcontractors, laborers, materialmen and
suppliers, and the Contractor to be known collectively as "Tenant's Agents")
must be approved in writing by Landlord, which approval shall not be
unreasonably withheld or delayed, and which approval or refusal shall be granted
or denied within five (5) business days after Tenant has submitted the names
thereof to Landlord and also has submitted any relevant financial data or
business references therefor requested by Landlord. Landlord's failure to
respond within the five (5) business day period specified in this Section 4.1.2
shall be deemed to constitute Landlord's approval under this Section 4.1.2.
4.2 Construction of Tenant Improvements by Tenant's Agents.
4.2.1 Landlord's General Conditions for Tenant's Agents and Tenant
Improvement Work. Tenant's and Tenant's Agent's construction of the Tenant
Improvements shall comply with the following: (i) the Tenant Improvements shall
be constructed in substantial accordance with the Approved Working Drawings;
provided however that Tenant may make changes to the Approved Working Drawings
pursuant to the terms of Section 3.5, above; and (ii) Tenant shall abide by all
reasonable and nondiscriminatory rules made by Landlord's Building manager 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 these Construction Provisions, including,
without limitation, the construction of the Tenant Improvements.
4.2.2 Requirements of Tenant's Agents. Each of Tenant's Agents
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. Each of Tenant's Agents 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 within one (1) year after the later to occur of (i) completion of the
work performed by such contractor or subcontractors and (ii) the 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 general 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 right of direct enforcement.
4.3 Notice of Completion. Within ten (10) days after the issuance of
the permanent or temporary certificate of occupancy for the Tenant Improvements
(or final inspection and sign-off by the City of Santa Monica Building
Inspector, if such procedure is employed in lieu of issuance of a certificate of
occupancy), Tenant shall cause a Notice of Completion or its legal equivalent to
be recorded in the office of the Recorder of the County of Los Angeles 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.
4.4 Landlord's Supervision Fee. Landlord shall be entitled to a fee
(the "Landlord Supervision Fee") in the amount of the product of (i) One Dollar
($1.00) and (ii) the number of usable square feet of the Premises. Except for
the Landlord Supervision Fee, Landlord shall receive no profit, overhead,
general conditions or supervisory fee in connection with Landlord's supervision
of the Contractor.
SECTION 5
DELAY OF COMMENCEMENT DATE
5.1 Commencement Date Delays. The Commencement Date shall occur as
provided in Article 3 of this Lease; provided, however, that notwithstanding any
contrary provision of Article 3 of this Lease, the Commencement Date shall be
delayed by the number of days of delay of the "substantial completion of the
Tenant Improvements," as that term is defined below in this Section 5, in the
Premises to the extent caused by a "Commencement Date Delay." As used herein,
the term "Commencement Date Delay" shall mean only actual delays to the extent
resulting from: (i) material interference by Landlord, its agents or contractors
with the completion of the Tenant Improvements and which objectively preclude
construction of tenant improvements in the Building by any person, which
interference relates to access by Tenant, its agents and contractors to the
Building or any Building facilities or service (including temporary power and
parking areas as provided herein) during normal construction hours, or the use
thereof during normal construction hours
EXHIBIT C - Page 6
<PAGE> 65
(provided, however, that Landlord's enforcement of all reasonable and
non-discriminatory rules referred to in clause (ii) of Section 4.2.1 of these
Construction Provisions shall not be considered a Commencement Date Delay
hereunder); (ii) delays due to the acts or failures to act of Landlord, its
agents or contractors with respect to payment of the Tenant Improvement
Allowance and/or any cessation of work upon the Tenant Improvements as a result
thereof; (iii) Landlord's failure to substantially complete the Base Building
work described in Sections 1.1.1, 1.1.2, 1.1.3, 1.1.4 and 1.1.5 of these
Construction Provisions within the time periods specified in each of such
Sections; and (iv) the failure of Landlord (except where caused by "Force
Majeure" as defined for these purposes in Section 5.1.1 of these Construction
Provisions) to provide all services and utilities to the Premises in a manner
and condition pursuant to the terms of this Lease; (v) subject to the
limitations expressed in Sections 5.1.1 through 5.1.3 below, "Force Majeure" as
that term is defined, for purposes of this Section 5.1 of these Construction
Provisions only, in Section 5.1.1.
5.1.1 "Force Majeure", for purposes of Section 5.1 of these
Construction Provisions, shall mean an event, condition or circumstance falling
within the definition of Force Majeure in Section 39.19 of this Lease, but only
where such event, condition or circumstance is of a nature such that it would
objectively preclude the construction of tenant improvements in the Building for
general office use by any person.
5.1.2 Tenant may not claim a Commencement Date Delay due to Force
Majeure unless and until Tenant has sustained an aggregate of five (5) days of
delay due to one or more events of Force Majeure. Moreover, Tenant may not claim
a Commencement Date Delay due to Force Majeure unless Tenant gives Landlord
written notice of the Force Majeure delay within two (2) business days following
the date of the Force Majeure delay. Tenant shall maintain accurate records to
substantiate the existence and duration of any Force Majeure delay.
5.1.3 If there is more than one hundred five (105) days of
Commencement Date Delay due to Force Majeure (meaning that Tenant must have
sustained one hundred ten (110) days of Force Majeure delays), Landlord shall
have the right to terminate this Lease upon delivery of written notice to
Tenant. If Landlord so elects to terminate this Lease, this Lease shall end and
the parties shall be released of their obligations hereunder on the date
specified in Landlord's termination notice (except for obligations which have
accrued and remain unperformed as of the date of termination), which termination
date shall be not less than five (5) business days after delivery of Landlord's
termination notice, unless, prior to such termination date, Tenant delivers to
Landlord Tenant's written agreement that there shall be no more than one hundred
five (105) days of Commencement Date Delay due to Force Majeure.
5.2 Determination of Commencement Date Delay. If Tenant contends that a
Commencement Date Delay has occurred, Tenant shall notify Landlord in writing
(the "Delay Notice") of the event which constitutes such Commencement Date
Delay. If the Commencement Date Delay arises under clause (i) of Section 5.1 of
these Construction Provisions and was not due to Landlord's failure to perform
in accordance with a written schedule approved in advance by Landlord's
representative under Section 6.2 of these Construction Provisions, the
Commencement Date Delay shall be deemed to have occurred commencing on the
second business day following the date of Landlord's receipt of the Delay
Notice. In all other cases, the Commencement Date Delay shall be deemed to have
occurred on the date of Landlord's receipt of the Delay Notice.
5.3 Definition of Substantial Completion of the Tenant Improvements.
For purposes of this Section 5, "substantial completion of the Tenant
Improvements" shall mean completion of construction of the Tenant Improvements
in the Premises pursuant to the "Approved Working Drawings," with the exception
of any punch list items, but including any furniture, fixtures, workstations,
built-in furniture or equipment (even if the same requires installation or
electrification by Tenant's Agents).
SECTION 6
MISCELLANEOUS
6.1 Tenant's Representative. Tenant has designated Jack Spound as its
sole representative with respect to the matters set forth in these Construction
Provisions, who, until further notice to Landlord, shall have full authority and
responsibility to act on behalf of the Tenant as required in these Construction
Provisions.
6.2 Landlord's Representative. Landlord has designated Michael Pace as
its sole representative with respect to the matters set forth in these
Construction Provisions, who, until further notice to Tenant, shall have full
authority and responsibility to act on behalf of the Landlord as required in
these Construction Provisions.
EXHIBIT C - Page 7
<PAGE> 66
6.3 Time of the Essence in These Construction Provisions. Unless
otherwise indicated, all references herein to a "number of days" shall mean and
refer to calendar days. In all instances where Tenant is required to approve or
deliver an item, if no written notice of approval is given or the item is not
delivered within the stated time period, at the end of such period the item
shall automatically be deemed disapproved by Tenant.
6.4 Elevator Usage. Landlord shall cooperate with Tenant in making
available for Tenant's use a passenger elevator for Tenant's construction and
move-in activities. Tenant shall be responsible for any damage to the elevator,
elevator lobby and other Common Area of the Building resulting from Tenant's
construction and move-in activities.
6.5 Miscellaneous Charges. During the period of construction of the
Tenant Improvements and Tenant's move into the Premises, Tenant or Tenant's
Agents shall not be charged for reasonable amounts of parking, HVAC usage,
electricity, water, elevator and restroom usage, or access to loading docks, or
standard security services.
6.6 Clean-Up. Prior to the delivery of the Premises to Tenant for the
commencement of the construction of the Tenant improvements, Landlord shall
remove all rubbish and debris therefrom. Following substantial completion of the
Tenant Improvements and Tenant's move into the Premises, Landlord shall provide,
as an Operating Expense, janitorial service to the Premises in accordance with
the Building's standard cleaning specifications.
LANDLORD: BARCLAY CURCI INVESTMENT COMPANY,
a California general partnership
By: SC ENTERPRISES,
a California limited partnership,
a general partner
By: SHURL CURCI,
a general partner
By:
-----------------------------------
Roberta P. Gilligan,
his attorney-in-fact
TENANT: CENTURY SOUTHWEST CABLE TELEVISION, INC.,
a Delaware corporation
By:
--------------------------------------------
Name:
------------------------------------------
Title: President
By:
--------------------------------------------
Name:
------------------------------------------
Title: Secretary
EXHIBIT C - Page 8
<PAGE> 67
EXHIBIT D
SUBORDINATION OF LEASE
LEASE SUBORDINATION, ATTORNMENT
AND
NON-DISTURBANCE AGREEMENT
THIS AGREEMENT, made this day of 19 , by and between
(herein "Lessee"), and MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, a
Massachusetts corporation (herein "Lender").
RECITALS
A. Lender is the holder of a certain promissory note (herein the
"Note") issued by
("Lessor"), dated in the principal sum of
DOLLARS ($ ) and of the mortgage of even date therewith (herein the
"Mortgage") securing the Note, recorded on
which Mortgage encumbers the real property (herein called the "Subject
Property") described on Exhibit A, attached hereto and made a part hereof.
B. Lessee and
as Lessor, entered into a lease agreement (herein the "Lease") dated
by which Lessee leased from Lessor certain premises commonly known as
(herein the "Leased Premises"), and constituting a portion of the Subject
Property.
C. Lessee desires to be able to obtain the advantages of the Lease and
occupancy thereunder in the event of foreclosure of the Mortgage and Lender
wishes to have Lessee confirm the priority of the Mortgage over the Lease.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
set forth hereinbelow, the parties hereto agree as follows:
1. Lessee hereby covenants and agrees that all its rights and interests
whatsoever under the Lease in the Leased Premises and the Subject Property are
and shall remain subject and subordinate to the lien of the Mortgage and to all
the terms, conditions and provisions thereof, to all advances made or to be made
thereunder or under the Note, and to any increases, renewals, extensions,
modifications, substitutions, consolidations or replacements thereof or of the
Note.
2. So long as Lessee is not in default (beyond any period given Lessee
in the Lease to cure such default) in the payment of rent or additional charges
or in the performance of any of the other terms, covenants or conditions of the
Lease on Lessee's part to be performed, Lender or any Purchaser (as defined in
Section 3 hereof) shall not terminate the Lease and Lessee shall not be
disturbed by Lender or any Purchaser in its possession of the Leased Premises
during the term of the Lease, or any extension or renewal thereof, or in the
enjoyment of its rights under the Lease.
If the interest of the Lessor under the Lease shall be
acquired by Lender or any Purchaser ("Purchaser") by reason of exercise of the
power of sale or the foreclosure of the Mortgage or other proceedings brought to
enforce the rights of the holder thereof, by deed in lieu of foreclosure or by
any other method, and Lender or Purchaser succeeds to the interest of Lessor
under the Lease, Lessee shall attorn to Lender or Purchaser as its lessor, said
attornment to be effective and self-operative without the execution of any other
instruments on the part of either party hereto immediately upon Lender's or
Purchaser's succeeding to the interest of the Lessor under the Lease, and the
Lease shall continue in accordance with its terms between Lessee as lessee and
Lender or Purchaser as lessor; provided, however, that:
EXHIBIT D - Page 1
<PAGE> 68
(a) Lender or Purchaser shall not be personally liable under the
Lease and Lender's liability under the Lease shall be limited
to the ownership interest of Lender in the Subject Property;
(b) Lender or Purchaser shall not be liable for any act or omission
of any prior lessor (including Lessor) except to the extent
such act or omission pertains to a continuing covenant, and
then Lender or Purchaser shall be liable only for a failure to
cure the same which continues after Lender or Purchaser takes
title to the Subject Property;
(c) Lender or Purchaser shall not be subject to any offsets or
defenses which Lessee might have against any prior lessor
(including Lessor), if such offsets or defenses relate to
obligations of any prior lessor (including Lessor) which arise
prior to the date Lender or Purchaser takes title to the
Subject Property;
(d) Lender shall not be bound by any prepayment of rent or deposit,
rental security or any other sums deposited with any prior
lessor (including Lessor) under the Lease unless actually
received by Lender, except as to monthly installments of
Expenses paid no more than thirty (30) days in advance;
(e) Lender shall not be bound by any agreement or modification of
the Lease made without Lender's consent, except for agreements
or modifications expressly contemplated by this Lease in
connection with expansion of the Premises or extension of the
term of the Lease;
(f) Lender shall not be bound to commence or complete any
construction or to make any contribution toward construction or
installation of any improvements upon the Leased Premises
required under the Lease or any expansion or rehabilitation of
existing improvements thereon, or for restoration of
improvements following any casualty not required to be insured
under the Lease or for the costs of any restoration in excess
of any proceeds recovered under any insurance required to be
carried under the Lease; and
(g) Lender shall not be bound by any restriction on competition
beyond the Leased Premises.
4. Lessee certifies to Lender that the Lease is presently in full force
and effect with no defaults thereunder by the Lessor or by Lessee and unmodified
except as indicated hereinabove that no rent under the Lease has been paid more
than thirty (30) days in advance of its due date; that the address for notices
to be sent to Lessee is as set forth in the Lease, or at the Leased Premises;
and that the Lessee does not presently have or claim any charge, lien or offset
under the Lease or otherwise, against rents or other charges due or to become
due thereunder.
5. Lessee agrees with Lender that from and after the date hereof,
Lessee will not terminate or seek to terminate the Lease by reason of any act or
omission of the Lessor thereunder until Lessee shall have given written notice,
by registered or certified mail, return receipt requested, of said act or
omission to Lender, which notice shall be addressed to Massachusetts Mutual Life
Insurance Company, 1295 State Street, Springfield, Massachusetts 01111,
Attention: Senior Vice President, Real Estate Investment Division, and until a
reasonable period of time shall have elapsed following the giving of such
notice, during which period Lender shall have the right, but shall not be
obligated, to remedy such act or omission.
6. This Agreement shall inure to the benefit of and shall be binding
upon Lessee and Lender, and their respective heirs, personal representatives,
successors and assigns. This Agreement may not be altered, modified or amended
except in writing signed by all of the parties hereto. In the event any one or
more of the provisions contained in this Agreement shall for any reason be held
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
Agreement, but this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein. This Agreement shall be
governed by and construed according to the laws of the State of
EXHIBIT D - PAGE 2
<PAGE> 69
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
LESSEE:
[ATTEST OR WITNESSES (2)] CENTURY SOUTHWEST CABLE TELEVISION,
INC.
a Delaware corporation
By:
----------------------------------- ------------------------------------
Its:
----------------------------------- ------------------------------------
[SEAL]
[ATTEST] MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY,
a Massachusetts corporation
By:
----------------------------------- ------------------------------------
Its:
----------------------------------- ------------------------------------
[SEAL]
EXHIBIT D - PAGE 3
<PAGE> 70
EXHIBIT D-1
SUBORDINATION OF DEED OF TRUST
______________________________________________________________________
(hereinafter called "Lender") as owner and holder of a certain promissory note
dated ______________ in the principal sum of _____________ Dollars
($____________) and a Deed of Trust dated of even date herewith securing said
Note, now a first lien upon the premises more particularly demised and described
in those certain leases by and between ____________, as Landlord, and the
persons named (whose agreement hereto is evidenced by unrecorded agreements in
the possession of Landlord and Lender) in Exhibit A attached hereto and made a
part hereof, as Tenant, and upon other property, in consideration of such
leasing and of the sum of One Dollar ($1.00) and other good and valuable
consideration, receipt of which is hereby acknowledged,
DOES hereby covenant and agree that the said Deed of Trust shall be,
and the same is hereby made, SUBJECT AND SUBORDINATE to said leases with the
same force and effect as if the said leases had been executed, delivered and
recorded prior to the execution, delivery and recording of said Deed of Trust,
without regard to the date on which said leases had been executed, delivered and
recorded in relation to the date on which said Deed of Trust has become an
effective lien by the terms therein demised;
EXCEPT, HOWEVER, that this Subordination shall not affect or be
applicable to and does hereby expressly exclude:
(a) The prior right, claim and lien of the said Deed of Trust, to and
upon any award or other compensation heretofore or hereafter to be
made for any taking by eminent domain of any part of said
premises, and to the right of disposition thereof in accordance
with the provisions of said Deed of Trust,
(b) The prior right, claim or lien of the said Deed of Trust in, to
and upon any proceeds payable under all policies of fire and rent
insurance upon the said premises and as to the right of
disposition thereof in accordance with the terms of said Deed of
Trust, and
(c) Any lien, right, power or interest, if any, which may have arisen
or intervened in the period between the recording of the said Deed
of Trust and the execution of the said leases, or any lien or
judgment which may arise at any time under the terms of such
leases.
The subordination shall inure to the benefit of and shall be binding
upon the undersigned, its successors and assigns.
IN WITNESS WHEREOF, this Subordination has been duly signed and
delivered by the undersigned this _____________ day of _________________, 19___.
"LENDER":
EXHIBIT D-1 - PAGE 1
<PAGE> 71
ACKNOWLEDGMENTS
STATE OF )
) SS.
COUNTY OF )
On this, the day of , 19 , before me, the
undersigned party, personally appeared
who acknowledged himself to be the of
, a
, and that he as such
being authorized to do so, executed the foregoing Lease Subordination,
Attornment and Non-Disturbance Agreement for the purposes therein contained by
signing the name of the by himself as
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
__________________________
Notary Public
My Commission Expires:
COMMONWEALTH OF MASSACHUSETTS )
) SS.
COUNTY OF )
On this, the day of , 19 , before me, the
undersigned party, personally appeared
who acknowledged himself to be the of MASSACHUSETTS
MUTUAL LIFE INSURANCE COMPANY, a Massachusetts corporation, and that he as such
being authorized to do so, executed the foregoing Lease
Subordination, Attornment and Non-Disturbance Agreement for the purposes therein
contained by signing the name of the corporation by himself as
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
__________________________
Notary Public
My Commission Expires:
<PAGE> 72
EXHIBIT E
ESTOPPEL STATEMENT
Re: Lease dated as of ____________________________(hereinafter the
"Lease"), between _______________________________ (hereinafter
the "Lessor") and _______________________________ (hereinafter
the "Lessee"), (and amended on _______________________________),
concerning the premises described in Exhibit A attached
hereto (the "Premises").
As Lessee under the above-referenced Lease, the undersigned hereby
acknowledges for the benefit of ________________________________ ("Lender"),
which has or is about to make a loan to said Lessor, part of the security for
which will be a mortgage or deed of trust covering the Premises leased to the
undersigned and an assignment of Lessor's interest in the Lease, the truth and
accuracy of the following statements pertaining to said Lease.
1. Lessee has accepted full possession of said Premises, including all
improvements, additions and alterations thereto required to be made by Lessor
under the said Lease, and Lessee is not aware of any patent or latent defects in
construction of said improvements (except for only nonsubstantial defects,
notice of which has previously been given to Lessor) which would constitute a
default by Lessor pursuant to the Lease.
2. Lessee is paying the full rent stipulated in said Lease to be paid
by Lessee as of the date hereof with no offsets, defenses or claims.
3. Lessor is not presently in default under any of the terms, covenants
or provisions of said Lease.
4. Lessor has satisfactorily complied with all of the requirements and
conditions precedent to the commencement of the term of said Lease as specified
in said Lease.
5. The current fixed base monthly rent under said Lease is $___________
and no monies have been paid to Lessor in advance of the due date set forth in
the Lease described above, except as follows:___________________________________
________________________________________________________________________________
_______________________________________________________________________________.
6. The Lease is for a term of ____________________ years and Lessee has
been in occupancy since _____________________ and paying rent since ____________
______________________.
7. The Lease commenced on ____________________________________________.
8. Lessee hereby acknowledges (a) that there have been no modifications
or amendments to said Lease other than herein specifically stated, (b) that it
has no notice of a prior assignment, hypothecation or pledge of rents or of the
Lease other than herein specifically stated, (c) that the Lease is in full force
and effect and Lessee has no defenses, setoffs or counterclaims against Lessor
arising out of the Lease or in any way relating thereto, or arising out of any
other transaction between Lessee and Lessor, (d) that the Lease represents the
entire agreement between the parties thereto as to the leased premises, and
Lessee neither has nor claims any right or interest in or under any contract,
option or agreement involving the sale or transfer of the leased premises except
as specifically provided in the Lease, (e) that no prepayment or reduction of
rent, and no modification, termination or acceptance of surrender of the Lease
will be valid as to Lender without the consent of Lender, and (f) that notice of
the proposed assignment of Lessor's interest in said Lease may be given Lessee
by Certified or Registered Mail, Return Receipt Requested, at the Premises, or
as otherwise directed herein.
Dated: __________________________, 19__________
LESSEE: ____________________________________
____________________________________
By:_________________________________
Its:________________________________
EXHIBIT E - PAGE 1
<PAGE> 73
(Address to which notices are to be sent if other than Premises)
________________________________________________________________
________________________________________________________________
________________________________________________________________
EXHIBIT E - PAGE 2
<PAGE> 74
EXHIBIT F
BUILDING RULES AND REGULATIONS
The following rules and regulations shall be applicable to the
Building:
1. No sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed, printed or affixed on or to any part of the Building or
Premises if visible from outside the Premises, without the prior written consent
of Landlord. Tenant's identification signs and lettering shall be in accordance
with Landlord's standard requirements for the Building unless otherwise approved
in writing by Landlord, and shall be printed, painted, affixed, or inscribed at
the expense of Tenant by a person approved by Landlord.
2. Tenant shall not place or maintain any window covering, blinds or
drapes on any window without Landlord's prior written approval. A breach of this
rule will directly and adversely affect the exterior appearance of the Building.
Upon request by Landlord, Tenant shall remove any window covering, or any other
item visible from outside the Premises, if installed or placed without
Landlord's written approval.
3. A directory of the Building will be provided for the display of the
name and location of tenants. Landlord will install at Tenant's expense
directory strips for Tenant's name and a reasonable number of the principal
employees thereof, and Landlord reserves the right to exclude any other names
therefrom.
4. The sidewalks, halls, passages, exits, entrances, elevators,
escalators, and stairways shall not be obstructed by Tenant or used by it for
any purpose other than for ingress to and egress from the Premises. The halls,
passages, exits, entrances, elevators, escalators, stairways, balconies and roof
are not for the use of the general public and Landlord shall in all cases retain
the right to control and prevent access thereto by all persons whose presence in
the judgment of the Landlord might be prejudicial to the safety, character,
reputation and interests of the Building and its tenants, provided that nothing
herein contained shall be construed so as to prevent such access to persons with
whom Tenant normally deals in the ordinary course of Tenant's business unless
such persons are engaged in illegal activities or are creating a nuisance. No
employee, invitee, contractor or agent of Tenant shall go upon the roof of the
Building.
5. Tenant shall be responsible for assuring that doors to the Premises
are locked during non-business hours. Such doors shall not be left open during
business hours, except while moving furniture or other items in or out of the
Premises, unless Landlord consents otherwise.
6. The toilet rooms and urinals, wash bowls and other apparatus therein
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 placed
therein; the expense of breakage, stoppage or damage resulting from the
violation of this rule shall be borne by the tenant who, or whose employees,
invitees, contractors or agents, shall have caused it.
7. Except as to normal pictures and furnishings, Tenant shall not mark,
drive nails, screw or drill into partitions, woodwork or plaster or in any way
deface the Premises or any part thereof. No boring, cutting or stringing of
wires shall be permitted except with the prior written consent of Landlord and
as Landlord may direct. Tenant shall not lay linoleum, tile, carpet or other
similar floor covering so that the same shall be affixed to the floor of the
Premises in any manner except as approved by Landlord. The expense of repairing
any damage resulting from a violation of this rule or removal of any floor
covering shall be borne by Tenant.
8. Tenant shall not overload any floor of the Premises or the Building.
No furniture, freight or equipment of any kind shall be brought into the
Building by Tenant or its contractors or agents without prior consent of
Landlord and all moving of the same into or out of the Building shall be done at
such time and in such manner as Landlord shall designate. Landlord shall have
the right to prescribe the weight, size and position of all safes and other
heavy objects brought into the Building and also the time and manner of moving
the same in and out of the Building. Safes and other heavy objects shall, if
considered necessary by Landlord, stand on wood strips of such thickness as is
necessary to properly distribute weight. Landlord will not be responsible for
loss or damage to any property from any such cause, and all damage done to the
Building by moving or maintaining any such safe or other property shall be
repaired at the expense of Tenant. There shall not be used in any part of the
Building any hand truck unless it is equipped with rubber tires and side guards.
9. Tenant shall not employ any person or persons other than the janitor
of Landlord for the purpose of cleaning the Premises unless otherwise agreed to
in writing by Landlord. Except with the prior written consent of Landlord, no
person or persons other than those approved by Landlord shall be permitted to
enter the Building for the purpose of cleaning same. Tenant shall not cause any
unnecessary labor by reason
EXHIBIT F - PAGE 1
<PAGE> 75
of Tenant's carelessness or indifference in the preservation of good order and
cleanliness. 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 the
effects of Tenant or any of its employees or other persons by the janitor of
Landlord. Janitor service shall include ordinary dusting and cleaning by the
janitor assigned to such work and shall not include clearing of carpets or rugs,
except normal vacuuming, or moving of furniture and other special services.
Janitor service will not be furnished to rooms which are occupied after 9:30
p.m. Window cleaning shall be done only by Landlord at reasonable intervals and
as Landlord deems necessary.
10. Tenant shall not use, keep or permit to be used or kept any noxious
gas or substance in the Premises, or permit or suffer the Premises to be
occupied or used in a manner offensive or objectionable to Landlord, in
Landlord's reasonable judgment or other occupants of the Building by reason of
unreasonable noise, odors and/or vibrations, or unreasonably interfere in any
way with other tenants or those having business therein. No tenant shall make or
permit to be made any loud or disturbing noises or disturb or interfere with
occupants of the Building or those having business with them whether by the use
of any musical instrument, radio, phonograph, shouting or in any other manner.
Tenant shall not throw anything out of doors or down the passageways.
11. The Premises shall not be used for the storage of merchandise
except as such storage may be incidental to the use of the Premises authorized
by the Lease. No cooking shall be done or permitted in the Premises without
Landlord's consent, except that use by Tenant of Underwriter's
Laboratory-approved microwave ovens or equipment for brewing coffee or similar
beverages shall be permitted. Tenant shall not advertise for day laborers giving
an address at the Premises. The Premises shall not be used for lodging or for
any illegal purposes. Tenant shall not keep or maintain pets or animals of any
type and shall not store or keep bicycles, mopeds or motorcycles in the Premises
or the Building.
12. Tenant shall not use or keep in the Premises or the Building any
kerosene, gasoline or flammable or combustible fluid or material, or use any
method of heating or air conditioning other than that supplied or permitted by
Landlord.
13. Landlord will direct electricians as to where and how electrical,
telephone and telegraph wires are to be introduced to the Premises. No boring or
cutting for wires will be allowed without the prior consent of Landlord. The
location of telephone switching equipment, call boxes and other similar
equipment in the Premises shall be subject to the approval of Landlord.
14. Landlord will furnish Tenant free of charge two (2) keys for each
locking door in the Premises. Any additional or replacement keys will be
furnished at a reasonable charge. All keys to offices, rooms and toilet rooms
shall be obtained from Landlord and Tenant shall not duplicate or obtain such
keys from any other source. Upon termination of the Lease, Tenant shall deliver
to Landlord the keys to the offices, rooms and toilet rooms which were
previously furnished to Tenant, failing which Tenant shall pay Landlord the cost
of replacing same or of changing the lock or locks opened by any unreturned key
if Landlord deems it necessary to make such changes. Landlord shall have the
right periodically to change all locks and furnish Tenant with new keys
therefor. Tenant shall not alter any lock or install any new or additional locks
or any bolts on any door of the Premises without the prior written consent of
Landlord (except as to safes, vaults and other secured areas of Tenant approved
by Landlord).
15. No furniture, packages, supplies, equipment or merchandise will be
received in the Building or carried up or down in the elevators, except between
such hours and in such elevators as shall be designated by Landlord.
16. Landlord reserves the right to close and keep locked all entrances
and exit doors of the Building on Saturdays, Sundays, legal holidays and on
other days between non-business hours, and during such further hours as Landlord
may deem advisable for the adequate protection of the Building and the property
of its tenants (such hours are referred to as "After-Hours"). However, during
such After-Hours Tenant and/or authorized employees, as well as guests,
licensees or invitees of Tenant who are accompanied by Tenant or an authorized
employee of Tenant, shall be allowed access to the Building upon proper
identification. Landlord shall in no case be liable for damages for any error
with regard to the admission to or exclusion from the Building of any person. In
case of invasion, mob, riot, public excitement, or other commotion, Landlord
reserves the right to prevent access to the Building during the continuance of
same.
17. The "'normal business hours"' for the Building are from 7:00 a.m.
to 6:00 p.m. Monday through Friday, excluding nationally recognized standard
holidays. As of the date of the Lease, nationally recognized standard holidays
currently are: Martin Luther King's Birthday; President's Day; Memorial Day;
Independence Day; Labor Day; Thanksgiving Day; Day After Thanksgiving*;
Christmas; Day after Christmas*;
EXHIBIT F - PAGE 2
<PAGE> 76
New Year's Day, and Day After New Year's Days*. (*Subject to change depending on
day of the year.) Such nationally recognized standard holidays are subject to
change from time to time in Landlord's reasonable discretion. All other hours
are deemed "After-Hours".
18. Tenant shall not canvass or solicit other tenants in the Building
and Tenant shall cooperate to prevent any such canvassing and/or solicitation.
Canvassing and peddling in the Building is prohibited. Tenant shall not obtain
for use in the Premises food, beverage, shoe-shine or other services except as
expressly permitted by Landlord.
19. Landlord reserves the right to exclude or expel from the Building
any person who, in the judgment of Landlord, is intoxicated or under the
influence of liquor or drugs, has no legitimate purpose to be in the Building,
or is violating the rules and regulations of the Building.
20. The requirements of Tenant will be attended to only upon
application to Landlord's designated property manager. Tenant acknowledges that
employees of Landlord shall have no obligation to perform work for Tenant or do
anything outside their regular duties for Tenant unless under special
instructions from Landlord, and that no employee will have any obligation to
admit any person (Tenant or otherwise) to any office of Landlord without
specific instructions from Landlord.
21. No vending machines of any description shall be installed,
maintained, or operated by Tenant upon the Premises or in the Building without
the prior written consent of Landlord. Landlord will not unreasonably withhold
such consent provided the vending machines are of a weight which does not exceed
the applicable floor-loading limitations and neither the machines nor any light
or sound emanating therefrom are visible or audible outside the Premises.
22. Tenant agrees that it shall comply with all fire and security
regulations that may be issued from time to time by Landlord, and Tenant shall
also provide Landlord with the name of a designated responsible employee to
represent Tenant in all matters pertaining to such fire or security regulations.
23. Tenant shall not install any radio or television antenna,
loudspeaker or other device on the roof or exterior walls of the Building.
Tenant shall not interfere with broadcasting or reception from or in the
Building or elsewhere.
24. Tenant shall store its trash and garbage within the Premises or in
other facilities designated by Landlord. Tenant shall not place in any trash
receptacle any material, which cannot be disposed of in the ordinary practice of
trash disposal. All trash and garbage disposal shall be made pursuant to
directions issued from time to time by Landlord.
25. Landlord may waive any one or more of the rules and regulations as
to any tenant without being construed as having waived same as to any other
tenant.
26. Tenant shall be responsible for the observance of the rules and
regulations by Tenant's employees, agents, customers, invitees and guests.
27. Landlord reserves the right upon written notice to Tenant, to
rescind, alter or waive any rule or regulation at any time prescribed for the
Building, or to establish additional rules and regulations when, in Landlord's
sole judgment, it is necessary, desirable or proper for the best interest of the
Building and its tenants.
28. The rules and regulations shall be administered fairly by Landlord
and Landlord shall not enforce them in a discriminatory manner as between the
tenants of the Building.
29. In case of conflict between these rules and regulations and the
express provisions of the Lease, the latter shall control.
EXHIBIT F - PAGE 3
<PAGE> 77
EXHIBIT G
GUARANTY AGREEMENT
In consideration of the sum of $1.00, receipt of which is hereby
acknowledged, and in consideration of the execution of the Lease dated , 1995
(hereinafter referred to as the "Lease") between BARCLAY CURCI INVESTMENT
COMPANY (hereinafter referred to as "Lessor") and CENTURY SOUTHWEST CABLE
TELEVISION, INC. (hereinafter referred to as "Lessee") by Lessor, the
undersigned, hereinafter sometimes referred to as "Guarantor", hereby
unconditionally guarantees the prompt and faithful performance by Lessee of the
Lease and all the terms, covenants and conditions thereof, including but not
limited to the payment by Lessee of the rental and other sums to become due
thereunder. Guarantor agrees that this obligation shall be binding upon
Guarantor without any further notice or acceptance hereof, but the same shall be
deemed to have been accepted by the execution of the Lease, and Guarantor
further agrees that immediately upon an event of default by Lessee, upon notice
to Guarantor, Guarantor will pay to Lessor the sum or sums in default and will
comply with and perform the terms, covenants and conditions of the Lease.
Guarantor agrees that no extension, forbearance or leniency extended by
Lessor to Lessee, and no modification, alteration or assignment of the Lease,
shall discharge Guarantor, and Guarantor agrees at all times while the Lease is
in effect that Guarantor will be liable notwithstanding the fact that Guarantor
has had no notice of the said extension, forbearance or leniency, or said
modification, alteration or assignment of the Lease.
This Guaranty will continue unchanged by any bankruptcy, reorganization
or insolvency of Lessee or any successor or assignee thereof or by any
disaffirmance or abandonment by a trustee of Lessee, and is not contingent upon
the genuineness, validity, or enforceability of the Lease.
Landlord may, without notice, assign this Guaranty, in whole or in
part, and no assignment or transfer of the Guaranty shall operate to extinguish
or diminish the liability of Guarantor hereunder.
The liability of Guarantor hereunder shall be primary, and in any right
of action which shall accrue to Lessor under the Lease, Lessor may, at its
option, proceed against Guarantor without having commenced any action or having
obtained any judgment against Lessee. Guarantor further agrees that Lessor may
proceed against Lessee and the same shall not constitute a discharge of
Guarantor, and further that the exercise of certain rights hereunder may affect
or eliminate Guarantor's right of subrogation against Lessee, and that
notwithstanding the foregoing, Lessor may exercise any of its rights hereunder.
Guarantor shall pay all costs and other expenses incurred by Lessor
(including reasonable attorneys' fees) in collection or attempted collection
related to the obligations hereby guaranteed, or in enforcing this Guaranty
against Guarantor, unless Guarantor is the prevailing party in such collection
or enforcement action, in which case Guarantor shall be entitled to recover its
reasonable attorneys' fees and costs from Lessor.
Guarantor shall be discharged of its obligations pursuant to this
Guaranty upon the expiration or termination of the Lease, provided Lessee fully
performs and discharges all its obligations under the Lease and further provided
no events of default remain uncured as of the expiration or termination of the
Lease. However, expiration or termination of this Lease shall in no way relieve
Guarantor of any obligations which have accrued and remain unperformed at such
time or of any liability for damages due to Lessee's breach or default under
this Lease.
CENTURY COMMUNICATIONS CORP.,
a Texas corporation
Attest: By:
------------------------------ ----------------------------------
------------------------------------- -------------------------------------
(please print) (please print)
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Title
EXHIBIT G - PAGE 1
<PAGE> 78
EXHIBIT H
JANITORIAL SPECIFICATIONS
A. JANITORIAL SERVICE SPECIFICATION FOR TENANT SUITES
1. Nightly Services - Five (5) nights per week, eight (8) hours
per night between the hours of 6:00 p.m. and 2:00 a.m. or
other schedule to be reviewed and approved by owner.
a. Secure all lights as soon as possible each night.
b. Vacuum all carpets.
c. Dust mop all resilient and composition floors with
treated dust mops. Damp mop to remove spills and
water stains as required.
d. Dust all desks and office furniture with treated dust
cloths.
e. Papers and folders on desks are not to be moved.
f. Sanitize all telephone receivers.
g. Empty all ash trays and ash urns. Clean and sanitize
as required.
h. Empty all waste paper baskets and other trash
containers.
i. Remove all trash from floors to designated trash
areas.
j. Remove fingerprints, dirt smudges, graffiti, etc.
from all doors, frames, glass partitions, windows,
wall switches, wall, elevator door iambs and elevator
interiors.
k. Return chairs and waste baskets to proper positions.
l. Clean, sanitize and polish drinking fountains.
m. Police all service stairwells.
n. Police all interior public corridor planters.
o. Dust and remove debris from all metal door
thresholds.
p. Wipe clean smudged bright work.
q. Spot clean all carpets, resilient and composition
floors as required.
r. Service all walk-off mats as required.
s. Close all blinds at exterior windows.
t. Check for burned out lights and report them to
supervisor. Supervisor to leave list of burned out
lights at management office on a nightly basis.
u. Spot clean entrance door glass and all partition
glass.
EXHIBIT H - PAGE 1
<PAGE> 79
v. Clean glass desk tops.
w. Clean lunchroom furniture and appliances.
x. Damp mop and spot clean lunchroom floors.
y. Sand jars to be wiped clean and fine-screened.
2. Weekly Services
a. Dust all low-reach areas including, but not limited
to, chair rungs, structural and furniture ledges,
baseboards, window sills, door louvers, wood paneling
molding, handrails and railings, etc.
b. Dust inside of all door jambs.
c. Clean and polish all metal door thresholds.
d. Wipe clean and polish all bright work.
e. Sweep all stairways throughout building.
f. Dust all vinyl base.
g. Edge all carpeted areas.
h. Move all plastic carpet protectors and thoroughly
vacuum under and around all desks and office
furniture.
i. Clean and spray buff all resilient and/or composition
flooring.
j. Raise and dust all blinds and dust window frames and
sills.
k. Remove all spots, smudges and marks from doors,
partitions, walls, woodwork, window frames, mullions
and ledges, wall switches and outlet plugs on floors
and walls.
l. Clean fire extinguisher and/or fire hose cabinets -
dust and clean glass.
m. Clean outside doors of mailboxes.
3. Monthly Services
a. Dust all high-reach areas including, but not limited
to, tops of door frames, structural and furniture
ledges, air conditioning diffusers and return grills,
tops of partitions, picture frames, etc.
b. Vacuum upholstered furniture.
EXHIBIT H - PAGE 2
<PAGE> 80
4. Quarterly Services
a. Shower-scrub or otherwise recondition all resilient
or composition flooring to provide level of
appearance equivalent to a completely refinished
floor.
b. Wipe down all vinyl, leather and wood furniture.
c. Vacuum window coverings (curtains or drapes) and
cornices.
d. Wash all chair pads.
B. RESTROOM SERVICE SPECIFICATIONS
1. Nightly Services - Five (5) nights per week.
a. Restock all restrooms with supplies including paper
towels, toilet tissue, seat covers, and hand soap, as
required.
b. Restock all sanitary napkin and tampon dispensers as
required.
c. Wash and polish all mirrors, dispensers, faucets,
flushometers, and bright work with non-scratch
disinfectant cleaners.
d. Wash and sanitize all toilet bowls, toilet seats,
urinals and sinks with non-scratch disinfectant
cleaner. Wipe dry all sinks.
e. Remove stains, descale toilets, urinals and sinks as
required.
f. Mop all restroom floors with disinfectant germicidal
solution.
g. Empty and sanitize all waste and sanitary napkin and
tampon receptacles.
h. Remove all restroom trash from building.
i. Spot clean fingerprints, marks and graffiti from
walls, partition glass, aluminum and wall switches as
required.
j. Empty and damp wipe all ashtrays.
k. Report all fixtures not working properly to
supervisor. Supervisor to leave list at management
office nightly.
EXHIBIT H - PAGE 3
<PAGE> 81
2. Weekly Services
a. Dust all low-reach and high-reach areas including but
not limited to, structural ledges, wainscoating,
mirror tops and edges, air conditioning diffusers and
return air grills.
b. Wash down urinal screens and adjacent tile.
3. Monthly Services
a. Wipe down all tile walls and metal partitions.
Partitions shall be left in an unstreaked condition.
b. Clean all ventilation grills.
c. Dust all doors and door jambs.
d. Scrub floors with special germicidal solution.
e. Spot clean walls around lavatories.
f. Descale toilets and urinals.
g. Pour clean water down floor drain to prevent sewer
gases from escaping.
h. Soap dispenser nozzles to be thoroughly cleaned.
i. Clean upholstered furniture in public areas if any.
4. Quarterly Services
a. Thoroughly clean, strip and reseal all ceramic tile
floors, using approved sealers.
C. MAIN FLOOR ELEVATOR LOBBIES AND PUBLIC CORRIDORS SPECIFICATIONS
1. Nightly Services - Five (5) nights per week (Monday through
Friday).
a. Thoroughly wash all swinging and revolving glass
doors exclusive of tenant doors.
b. Spot clean all glass including low partitions,
mirrors, and the corridor side of all windows and
glass doors to tenant premises.
c. Spot clean all brass or chrome bright work including
swinging and revolving door hardware, kick plates,
base, partition top hand rails, mirror wall hand
rails, waste paper
EXHIBIT H - PAGE 4
<PAGE> 82
receptacles, planters, elevator call button plates,
hose cabinets, mail boxes and any visible hardware on
the corridor side of tenant doors.
d. Spot clean all interior architectural finishes
including the corridor side of all tenant area
windows and door frames and base.
e. Spot clean all granite wall surfaces.
f. Thoroughly clean all door saddles of dirt and debris.
g. Spot clean, sweep, damp mop all corridor and
hard-surface flooring. Baseboards to be cleaned
concurrent with floor service.
h. Spot clean and dust directory board glass and ledges.
i. Empty, clean and sanitize as required all waste paper
baskets and refuse receptacles.
j. Vacuum all carpets and spot clean as necessary.
k. Clean all elevator doors and frames.
2. Weekly Services
a. Spot clean, sweep, mop and buff all hard-surface
flooring.
b. Treat all polished tile flooring with non-skid city
approval product.
3. Monthly Services
a. Thoroughly clean all chrome, brass, and architectural
interior finishes.
4. Quarterly Services
a. Steam extraction shampooing with neutralizing rinse
all elevator lobby and public corridor carpeting
(where installed).
EXHIBIT H - PAGE 5
<PAGE> 83
D. BASEMENT CORRIDORS, SERVICE OFFICE (ENGINEERING, SECURITY, CLEANING),
STOREROOMS, SERVICE CORRIDORS, ROOF AND SERVICE SINK CLOSETS; SHOWER
AND LOCKER ROOMS:
NOTE: Nightly and periodic services for offices, corridors, shower
rooms and restrooms included in the above areas shall be per
the specifications previously outlined for tenant areas and
common areas on tenant floors. Additional work not previously
specified shall be as follows:
1. Nightly Services - Five (5) nights per week (Monday through
Friday).
a. Remove all trash from all of above areas.
b. Maintain all orderly arrangement of all janitorial
supplies and paper products in the storage rooms and
service sink closets.
c. Maintain an orderly arrangement of all equipment
stored in these areas such as mops, buckets, brooms,
vacuum cleaners, scrubbers, etc.
d. Clean and disinfect service sinks.
e. Sweep and damp mop service sink closet floors.
Deodorize and disinfect as required.
f. Sweep storeroom floors.
g. Receive and store all janitorial supplies in an
orderly manner.
2. Weekly Services
a. Damp mop all composition floors in store areas.
Deodorize and disinfect as required.
b. High dusting of these areas including all pipes,
ducts, conduit, ventilating diffusers and grills and
mechanical, electrical equipment exposed beneath the
hung ceilings outside of the mechanical equipment
rooms.
EXHIBIT H - PAGE 6
<PAGE> 84
E. PASSENGER ELEVATOR CLEANING SPECIFICATIONS
1. Nightly Services - Five (5) nights per week (Monday through
Friday).
a. Wipe down with clean cloth all elevator doors,
interior walls and control panels;, vacuum floor
tracks and saddles.
b. Wipe down with clean cloth all outside surfaces of
all elevator doors and frames.
c. Spot clean elevator cab floor carpeting.
d. Vacuum all cab floor carpeting thoroughly. Edge all
carpeting thoroughly.
e. Vacuum all elevator thresholds.
\
2. Monthly Services
a. Steam extraction shampooing with neutralizing rinse
all elevator cab floor carpets.
b. Wipe clean all elevator cab lamps.
c. Wipe clean entire cab coiling.
F. LOADING DOCK, TRASH AREAS AND SERVICE ENTRANCE SPECIFICATIONS
1. Nightly Services - Five (5) nights per week (Monday through
Friday).
a. Place all miscellaneous trash and debris, except
construction material in trash receptacles or
compactor.
b. If necessary, clean any construction debris and place
in designated area. Record time and material used for
this work for back-charges to the responsible
contractors. Submit all records to Owner.
c. Neatly stack all trash in designated area.
d. Sweep entire area.
e. Mop entire trash area and disinfect and deodorize as
required.
EXHIBIT H - PAGE 7
<PAGE> 85
2. Weekly Services
a. Mop entire loading dock and service entrance area.
Deodorize and disinfect areas as required.
3. Quarterly Services
a. Perform high dusting and/or wash down services for
all high-reach projections, ducts, pipes, ledges,
etc. in loading dock and service entrance area.
G. EXTERIOR STRUCTURE AND GROUNDS SERVICE SPECIFICATIONS
1. Nightly Services - Five (5) nights per week (Monday through
Friday).
a. Police perimeter of Building including landscaped
areas, storm drain grills, and ventilation grills to
the property lines on all sides.
b. Spot sweep accumulations of dirt, papers and leaves
in all corner areas where wind tends to cause a
collection of this debris.
c. Spot clean and dust all ledges around entrances to
the Building.
d. Spot clean all exterior glass at Building entrances.
e. Thoroughly clean and polish all hand rails around
Building exterior.
f. Lift nap on all entry walk-off mats as necessary with
a heavy bristle brush and vacuum.
g. Empty all waste receptacles and remove trash to
designated trash area.
h. Sweep sidewalk steps and fountain area.
2. Quarterly Services
a. Machine scrub or steam clean exterior sidewalk areas.
EXHIBIT H - Page 8
<PAGE> 86
H. DAY CLEANING SPECIFICATIONS
Contractor shall supply two (2) day cleaning persons to the Project.
The duties of the day porter shall be primarily the maintenance and
upkeep of the main floor, common areas, restrooms and exterior of the
Project per the following. The work schedules of these individuals will
be as directed by Owner and may vary as requirements of the Project
dictate.
1. Restrooms
Damp wipe and polish all restroom sinks
Wash and dry mirrors
Check all dispensers; fill if necessary
Clean up as necessary
Minimum frequency 3% daily
2. Elevators
Check elevators and all elevator lobby floors
Clean doors, panels, buttons and casing
Vacuum floors and pick up debris
Replace burned out lamps; clean diffusers and grills when
relamping
Minimum frequency 2% daily
3. Lobbies and Public Areas
Clean lobby doors (both sides)
Straighten furniture
Pick up trash and debris; empty contains as necessary
Empty and wipe dry ashtrays
Sift and maintain sand urns
Minimum frequency 3 x daily
4. Lighting Maintenance
Replace all burned lamps in tenant offices, stairwells and
public areas
Clean diffuser and grill work when relamping
EXHIBIT H - Page 9
<PAGE> 87
5. Directories/Display Cases
Spot clean all directories and all other appropriate glass
enclosures
Minimum frequency 2 x daily
6. Stairwells
Police for trash; sweep or wet mop when necessary
7. Additional Duties
Perform all relevant maintenance duties as assigned by Owner
Check daily at office of the Building to obtain pick-up list
of missed or outstanding work left by night shift.
I. INITIAL CLEANING
Prior to tenant occupancy of new space, Contractor shall render a
thorough initial cleaning of all newly constructed and rented space,
including dusting, sweeping and vacuuming, polishing metal and bright
work, cleaning windows and mullions, and removal of residual
construction debris so that the premises shall be left in a clean,
orderly and proper condition. Contractor shall also provide complete
floor maintenance and initial waxing and polishing throughout the
premises prior to move in of all new tenants. Price paid to Contractor
for such services shall be negotiated and agreed upon by Owner and
Contractor before such services are performed.
EXHIBIT H - Page 10
<PAGE> 88
SHORT FORM MEMORANDUM OF LEASE
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
Allen, Matkins, Leck, Gamble & Mallory
1999 Avenue of the Stars
Suite 1800
Los Angeles, California 90067
Attention: Anton N. Natsis, Esq.
SHORT FORM OF MEMORANDUM OF LEASE
THIS SHORT FORM OF MEMORANDUM OF LEASE is entered into as of
__________, 1995, by and between BARCLAY CURCI INVESTMENT COMPANY, a California
general partnership ("Landlord"), and CENTURY SOUTHWEST CABLE TELEVISION, INC.,
a Delaware corporation ("Tenant"), who agree as follows:
1. Terms and Premises. Landlord leases to Tenant, and Tenant leases
from Landlord, certain premises (the "Premises") to be located on the real
property (the "Project") legally described on Schedule 1 attached hereto and
incorporated herein by this reference (including parking areas), for the term
and in accordance with the provisions of that certain Office Lease by and
between Landlord and Tenant, dated as of the date hereof (the "Lease"). The
provisions of the Lease are hereby incorporated herein.
2. Provisions Binding on Parties. The provisions of the Lease to be
performed by Landlord or Tenant, whether affirmative or negative in nature, are
intended to and shall bind or benefit the respective parties hereto and their
assigns or successors, as applicable, at all times.
3. Purpose of Short Form of Memorandum of Lease. This Short Form of
Memorandum of Lease is prepared solely for purposes of recordation, and in no
way modifies the provisions of the Lease.
"Landlord"
BARCLAY CURCI INVESTMENT COMPANY,
a California general partnership
By: SC Enterprises
a California partnership,
a general partner
By: Shurl Curci, a general partner
By:
----------------------------------
Roberta P. Gilligan,
his attorney-in-fact
EXHIBIT I - Page 1
<PAGE> 89
"Tenant"
CENTURY SOUTHWEST CABLE TELEVISION INC.,
a Delaware corporation
By:
------------------------------------------
Its:
------------------------------------------
By:
------------------------------------------
Its:
------------------------------------------
EXHIBIT I - PAGE 2
<PAGE> 90
[ACKNOWLEDGMENTS TO BE PROVIDED]
EXHIBIT I - PAGE 3
<PAGE> 91
SCHEDULE 1
LEGAL DESCRIPTION OF PROJECT
[To Be Provided]
SCHEDULE I - PAGE 1
<PAGE> 92
SCHEDULE A TO EXHIBIT C
SCHEDULE A TO EXHIBIT C HAS BEEN INTENTIONALLY OMITTED
SCHEDULE A - PAGE 1
<PAGE> 93
PARKING LICENSE AGREEMENT
BARCLAY CURCI INVESTMENT COMPANY, a California general partnership
("Licensor"), hereby grants to CENTURY SOUTHWEST CABLE TELEVISION, INC., a
Delaware corporation ("Licensee"), the right and license to use parking spaces
in Santa Monica Business Park (the "Project"), as described below and subject to
the following conditions:
1. TYPE AND NUMBER OF PARKING SPACES. Licensee shall have the right to
use up to [104] unassigned automobile parking spaces at a rate equal to four (4)
spaces per 1,000 rentable square feet. If the area of Licensee's Premises in the
Project is reduced, Licensee 's allotment of parking spaces will be adjusted
proportionately. If the area of Licensee's Premises is increased, Licensee may,
at its option, increase the number of its allotted parking spaces
proportionately. Notwithstanding the preceding, Licensee shall have no right to
use any number of parking spaces in excess of the number of employees of
Licensee, or Licensee's subtenant actually employed at the Premises.
2. MONTHLY FEE. Licensee shall pay for the right and license granted
hereby the prevailing rates charged for such spaces by Licensor from time to
time ("market rate") provided, however, that Tenant's monthly rate per space
shall not be increased by more than four percent (4%) per year on a compounded,
cumulative basis. As of the date of this Agreement, the market rate is $50.00
per space per month, plus any applicable municipal taxes. Such sums shall be
payable in advance on the first day of each calendar month. Licensor shall have
no obligation to accept any such payment from anyone other than Licensee (e.g.
Licensee's employees, subtenants, etc.). If Licensee fails to make any such
payment when due, Licensor, at its option and after five (5) business days'
notice to Licensee, may forthwith terminate this license and all rights of
Licensee hereunder. Any late payment of the monthly fee will result in
additional administrative and processing costs being incurred by Licensor, the
exact amount of which would be extremely difficult to determine, and it is
agreed that with respect thereto a late fee of Five Dollars ($5.00) per space is
a reasonable estimate thereof and will be payable by Licensee with regard to any
monthly fee not paid when due.
3. TERM. Licensee shall be entitled to the foregoing parking rights for
a period equivalent to the term of that certain Lease of Premises in the Project
entered into by Licensor and Licensee. Licensee's rights to any and all parking
spaces shall automatically be revoked and shall terminate upon any material
default hereunder (provided such default continues beyond notice and expiration
of any applicable cure period), or any expiration or termination of said Lease,
as well as upon any assignment of such Lease or sublease of such Premises in
violation of the terms of such Lease. Licensee shall deliver all required
security deposits and the initial monthly fee for the parking spaces described
above within thirty (30) days after the Commencement Date of the aforementioned
Lease as defined herein) unless otherwise agreed by Licensor. Failure of
Licensee to so exercise its rights will entitle Licensor without notice to
transfer to others Licensee's rights to park in any and all parking spaces as to
which Licensee has not so exercised its rights hereunder, and Licensee will be
deemed to have waived its rights hereunder with regard thereto.
4. LOCATION OF PARKING SPACES. Licensor shall have the right to
designate the particular location of said parking space(s), which designation is
subject to change from time to time. However, the parking space(s) shall be
located in the western phase of the Project in the area designated on Schedule 1
to this Agreement. Furthermore, Licensee shall be entitled to two (2) reserved
parking spaces next to the building in which the Premises are located, subject
to Tenant's payment of the reserved parking rate for such spaces.
5. RIGHTS NON-TRANSFERRABLE. The foregoing parking rights are personal
to Licensee and Licensee shall not assign, convey, or otherwise transfer said
rights in any manner whatsoever without Licensor's prior written consent, except
that said rights may be transferred to an Affiliate where Licensee assigns the
Lease or subleases the Premises to such Affiliate. Any attempt by Licensee to do
so shall be null and void and, at Licensor's election, shall constitute a
material default hereunder. If the Premises or any portion thereof is assigned
or sublet pursuant to the terms of the Lease, the number of parking spaces
allowed to Licensee under paragraph 1 hereof shall automatically be adjusted
accordingly and Licensor and Licensee shall immediately execute an amendment to
this Agreement setting forth (i) the number of spaces retained by Licensee, (ii)
the number of spaces allotted to Licensee's assignee or subtenant (which number
shall not exceed the amount stated in paragraph 1 above), (iii) the then current
"market rate" to be charged Licensee for the spaces allotted to its assignee or
subtenant (except that this clause (iii) shall not apply to an Affiliate
assignee or subtenant), and (iv) the security deposit to be paid by Licensee for
its assignee's or subtenant's parking cards.
6. RISK OF LOSS. Use of said parking spaces and of the parking areas in
the Project shall be at the sole risk of Licensee.
PARKING LICENSE AGREEMENT - PAGE 1
<PAGE> 94
7. INTERRUPTION OF USE. Licensor shall not be liable to Licensee for
any interruption of Licensee's use of the rights granted hereunder due to
repairs, improvements or alterations of the parking areas of the Project, or due
to any labor controversy, or resulting from any cause beyond the reasonable
control of Licensor. However, Licensee shall be entitled to reasonably similar
alternative spaces to be made available to it by Licensor.
8. RULES AND REGULATIONS. Licensor's parking rules and regulations are
attached hereto. Licensor may adopt such other reasonable and non-discriminatory
rules and regulations relating to the use of the parking areas as in Licensor's
opinion are necessary or desirable for the proper, orderly and safe use of the
parking areas. If Licensee fails to comply with the rules and regulations and
modifications thereto after receiving notice thereof and reasonable opportunity
to cure (not to exceed three (3) business days), Licensor may at its option
forthwith terminate this license and all rights of Licensee hereunder, and may
also, whether or not such license is so terminated, take such action as shall be
required to remedy such failure, and Licensee agrees to pay Licensor on demand
the reasonable cost to Licensor of such actions including attorneys' fees.
Licensee shall at all times be required to park in a lawful manner, and no
vehicle shall at any time be parked in more than one marked space at a time.
Licensor shall be entitled to tow away any vehicle which is improperly parked,
at the vehicle owner's sole cost and expense. In the event of such tow away,
neither Licensor nor any Mortgagee of Licensor shall have any liability therefor
to Licensee or to such vehicle owner.
9. LICENSOR'S PROPERTY RIGHTS. Licensor shall have the right to
decrease the size of any or all of the parking areas in the Project, to alter or
rearrange parking spaces and improvements in the parking areas, to take all or
any portion of the parking areas for purposes of maintaining, repairing or
restoring same, or for purposes of construction and operating structures thereon
or adjacent thereto, to have ingress and egress in connection with the exercise
of any such rights, and to do and perform such other acts with respect to the
parking areas as Licensor shall in its discretion deem appropriate; provided,
however, that Landlord shall provide Tenant with substitute parking within a
reasonable walking distance of the Premises. Licensor may at any time and from
time to time in its discretion designate any portion of the parking areas in the
Project for use as assigned parking, visitor parking or employee parking. If
Licensor establishes an "employee parking" area or other assigned parking area
for Licensee's employees to park in, Licensee shall furnish Licensor, within
five (5) days after written request to do so, with a list of the vehicle license
numbers of Licensee's employees parking in the Project. Licensor may charge
Licensee Ten Dollars ($10.00) per day for each day or partial day for each
vehicle parked by Licensee or any of its employees in a parking space or area
other than the space or parking area assigned or designated for such vehicle.
Licensor may tow away any such improperly parked vehicles and may also attach
violation notices or stickers to improperly parked vehicles. In the event of
such tow away, neither Licensor nor any Mortgagee of Licensor shall have any
liability therefor to Licensee or to such vehicle owner.
10. SECURITY DEPOSIT. If parking is in a controlled lot, a monthly
parking card or decal may be issued to Licensee for each parking space to be
used by Licensee hereunder. Licensee will pay a security deposit of Five Dollars
($5.00) for each parking card at the time of issuance of the card. Licensor
shall have no obligation to accept any such security deposit from anyone other
than Licensee. The security deposit shall be held by Licensor to secure
Licensee's due performance of its obligations with regard to parking hereunder
and the return to Licensor of such parking card(s) in good condition, normal
wear and tear excepted, upon termination of Licensee's rights hereunder.
Licensee shall be obligated to take reasonable steps to protect such cards from
warping or mutilation. Without limitation as to the generality of the foregoing,
Licensor may apply such security deposit to remedy any default by Licensee
hereunder and further, if such card(s) are lost or mutilated, Licensor may apply
any or all of said deposit toward Licensor's cost of such card(s). If at any
time Licensor applies any or all of such security deposit as provided herein,
Licensee shall be obligated to deposit with Licensor the amount so applied by
Licensor within ten (10) days after written request therefor is given. Upon
termination of Licensee's rights hereunder and the return to Licensor of the
aforementioned card(s) (or cards issued in substitution thereof) the security
deposit or balance thereof shall be returned to Licensee provided Licensee is
not then in default hereunder. Licensor need not hold said security deposit in a
separate account.
11. REPLACEMENT CARDS. If for any reason (other than a malfunction for
which Licensee is not responsible hereunder) any card issued to Licensee is
requested by Licensee to be replaced, Licensee shall pay Licensor the then
current non-refundable, reasonable charge for said replacement card.
12. MISCELLANEOUS. No waiver by Licensor of any breach of this
agreement by Licensee shall constitute a waiver of any other breach. Any amount
due to Licensor that is not paid when due shall bear interest at the maximum
rate allowable under law. In the event of any legal action taken or proceeding
brought to enforce the provisions hereof, the prevailing party shall be entitled
to recover its reasonable attorneys' fees and costs incurred in connection
therewith.
PARKING LICENSE AGREEMENT - PAGE 2
<PAGE> 95
DATED this ____ day of March __, 1995.
LICENSOR: BARCLAY CURCI INVESTMENT COMPANY,
a California general partnership
By: SC Enterprises,
a California limited partnership,
a general partner
By: SHURL CURCI,
a general partner
By:
-----------------------------------------
Roberta P. Gilligan,
his attorney-in-fact
LICENSEE: CENTURY SOUTHWEST CABLE TELEVISION, INC.,
a Delaware corporation
By:
-----------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
By:
-----------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
PARKING LICENSE AGREEMENT - PAGE 3
<PAGE> 96
PARKING RULES AND REGULATIONS
1. All claimed damage or loss must be reported and itemized in writing
delivered to the parking facility office or property manager's office within ten
business days after any claimed damage or loss occurs. Any claim not so made is
waived. Licensor has the option to make repairs at its expense of any claimed
damage within ten business days after filing a claim. In all court actions the
burden of proof to establish a claim remains with Licensee. Court actions by
Licensee for any claim must be filed within ninety days from date of parking in
a court of jurisdiction where the claimed loss occurred. Licensor is not
responsible for damage by water, fire, or defective brakes, or parts. or for the
acts or omissions of others, or for loss of articles left in vehicles. The total
liability of Licensor is limited to $250.00 for all damages or loss to any
vehicle. Licensor is not responsible for loss of use.
2. Licensee shall not park or permit the parking of any vehicle under
its control in any parking area designated by Licensor as areas for parking by
visitors. Licensee shall not leave vehicles in the parking area overnight nor
park any vehicles in the parking areas other than automobiles, motorcycles,
motor-driven or non-motor-driven bicycles or four-wheeled trucks.
3. Parking stickers or any other device or form of identification
supplied by Licensor as a condition of use of the parking facilities shall
remain the property of Licensor. Such parking identification device must be
displayed as requested and may not be mutilated in any manner. The serial number
of the parking identification device may not be obliterated. Devices are not
transferable and any device in the possession of an unauthorized holder will be
void.
4. No extended term storage of vehicles shall be permitted.
5. Vehicles must be parked entirely within the painted stall lines of a
single parking stall.
6. All directional signs and arrows must be observed.
7. The speed limit within all parking areas shall be 5 miles per hour.
8. Parking is prohibited:
(a) in areas not striped for parking;
(b) in driveways;
(c) where "no parking" signs are posted;
(d) in cross-hatched areas; and
(e) in such other areas as may be designated by Licensor or its
parking operator.
9. Every parker is required to park and lock his own vehicle unless
Licensor furnishes valet service. Valet parking attendants may refuse to drive
any vehicle reasonably believed to be unsafe.
10. Loss or theft of parking identification devices from vehicles must
be reported to the parking operator immediately, and a lost or stolen report
must be filed at that time. Licensor has the right to exclude any vehicles from
the parking facilities that does not have an identification device.
11. Any parking identification devices reported lost or stolen found on
any unauthorized vehicle will be confiscated and the illegal holder will be
subject to prosecution.
12. Lost or stolen identification devices found by the Licensee should
be reported to the parking facility office or property manager immediately to
avoid confusion.
13. Washing, waxing, cleaning or servicing of any vehicle in any area
not specifically reserved for such purpose is prohibited.
14. Licensee shall acquaint all persons to whom Licensee assigns
parking space of these Rules and Regulations. Parking facility managers or
attendants are not authorized to make or allow any exceptions to these Rules and
Regulations.
PARKING LICENSE AGREEMENT - PAGE 4
<PAGE> 97
15. Licensor reserves the right to refuse the sale of monthly stickers
or other parking identification devices to any person and/or his agents or
representatives who willfully refuses to comply with these Rules and
Regulations.
PARKING LICENSE AGREEMENT - PAGE 5
<PAGE> 98
PARKING LICENSE AGREEMENT
SCHEDULE 1
<PAGE> 99
ADDENDUM TO LEASE
This Addendum to Lease ("Addendum") modifies and supplements the Office
Lease dated March ___, 1995 ("Lease") between Barclay Curci Investment Company,
a California general partnership ("Landlord'), and Century Southwest Cable
Television, Inc., a Delaware corporation ("Tenant"), demising premises commonly
known as 3000 Ocean Park Boulevard (R), Suites 2001 and 3010, Santa Monica,
California ("Premises"). Landlord and Tenant further covenant and agree as
follows:
1. In Section 6.2.3.39 of the Lease, the word "except" is inserted
after the parenthetic phrase in the first line.
2. In Section 12.6.2 of the Lease, the ")" in the fifth line is
relocated after the word "passes" rather than "abated".
3. In Section 22.3 of the Lease, the word "and" is deleted before
"(iii)", the period after "Project" is changed to a semicolon, and the following
is added thereafter:
"(iv) Tenant's default in its obligations under Article 45 of this
Lease; and (v) any damages resulting from Tenant's construction
activities pursuant to the Construction Provisions attached as
Exhibit C to this Lease."
4. Section 30.2 of the Lease is hereby deleted and the following is
added as new Section 30.2:
30.2 NON-DISTURBANCE AGREEMENT.
30.2.1 Landlord shall undertake commercially reasonable
efforts to obtain a non-disturbance, recognition and
attornment agreement from its existing Mortgagee in such
Mortgagee's commercially reasonable and customary form. If
despite such efforts Landlord is unable to obtain a
commercially reasonable and customary form of non-disturbance,
recognition and attornment agreement from the existing
Mortgagee, Landlord will seek to obtain, and Tenant will
accept, the existing Mortgagee's standard form of
non-disturbance, recognition and attornment agreement provided
the same is modified to permit Tenant to exercise its right of
offset under Section 2.2.3 of the Construction Provisions
attached as Exhibit C to the Lease after the existing
Mortgagee (or any purchaser at the existing Mortgagee's
foreclosure sale) acquires title to the Premises, to the
extent of the unpaid balance of the Tenant Improvement
Allowance.
30.2.2 If Landlord is unable to obtain a non-disturbance,
recognition and attornment agreement from its existing
Mortgagee in conformance with Section 30.2.1 above prior to
the Commencement Date, then Landlord and Tenant shall
establish a blocked, interest-bearing account with a banking
institution licensed to do business in California and selected
by Landlord. Tenant shall timely deposit all payments of Rent
into the blocked bank account until whichever of the following
events first occurs: (a) Landlord obtains and delivers to
Tenant a non-disturbance, recognition and attornment agreement
signed by the Mortgagee existing on the date of this Lease in
conformance with Section 30.2.1 above; (b) Landlord obtains
the existing Mortgagee's standard form of non-disturbance,
recognition and attornment agreement, without the modification
described in Section 30.2.1 above, and either prepays the
unpaid balance of the Tenant Improvement Allowance or deposits
the unpaid balance of the Tenant Improvement Allowance into a
separate blocked account with the same banking institution,
with instructions to release said funds to Tenant in case of
foreclosure by the existing Mortgagee; (c) Landlord causes
this Lease to achieve priority over the deed of trust,
mortgage or other interest held by the Mortgagee existing on
the date of this Lease; (d) the term of this Lease expires; or
(e) this Lease terminates prior to the scheduled expiration
other than as a result of foreclosure of the prior mortgage,
deed of trust or other interest held by the Mortgagee existing
on the date of this Lease.
30.2.3 Upon the occurrence of any event described in clauses
(a), (b), (c), (d) or (e) of Section 30.2.2 above, all Rent
theretofore paid into the blocked bank account, together with
interest earned thereon, shall be released to Landlord, and
Tenant shall thereafter pay all Rent directly to Landlord. If
this Lease terminates before the occurrence of any of the
events described in clauses (a), (b), (c), (d) or (e) of
<PAGE> 100
Section 30.2.2 above, and such termination results from the
foreclosure of a mortgage, deed of trust or other interest
held by the Mortgagee existing on the date of this Lease, all
Rent theretofore paid into the blocked bank account, together
with interest thereon, shall be released to Tenant. Rent may
not be withdrawn from the blocked account by Landlord or
Tenant except as provided in this Section 30.2.3.
30.2.4 In case of any failure or delay in Tenant's payment of
Rent into the blocked account, Landlord shall have all rights
and remedies available where Rent is payable directly to
Landlord.
30.2.5 Tenant shall cooperate with Landlord's efforts to
obtain a nondisturbance, subordination and attornment
agreement as herein contemplated. If required by the existing
Mortgagee, Tenant should first execute and acknowledge a
nondisturbance, recognition and adornment agreement so the
same may be delivered to the existing Mortgagee for execution.
30.2.6 As a condition to the subordination of this Lease to
any future mortgage, deed of trust or ground or underlying
lease, Landlord shall obtain from the mortgagee, beneficiary
or lessor a nondisturbance, recognition and attornment
agreement in such form as is then reasonably and customarily
used by institutional lenders.
5. In Section 31.1 of the Lease, the word "by" is deleted after the
word "required" in the fourth line.
6. In Section 44.2 of the Lease, the reference in the fifth line to
"Section 44.1.1" is changed to "Section 44.1.2".
7. In Section 44.2.2 of the Lease, the reference in the third line to
"Section 44.4" is changed to "Section 44.5".
8. Tenant acknowledges that Tenant's right to use the parking
facilities of the Project is governed exclusively by the Parking License
Agreement entered into by Landlord and Tenant concurrently with their execution
of the Lease. Accordingly, nothing in the Memorandum of Lease attached as
Exhibit I to the Lease shall be construed as creating in Tenant any right or
interest in the Project's parking facilities.
9. Landlord and Tenant have duly executed this Addendum concurrently
with their execution of the Lease, intending that this Addendum form an integral
part of the Lease. In case of any conflict between the provisions of the Lease
and this Addendum, this Addendum shall control.
LANDLORD: BARCLAY CURCI INVESTMENT COMPANY,
a California general partnership
By: SC Enterprises,
a California limited partnership,
a general partner
By: SHURL CURCI,
a general partner
By:
-----------------------------------------
Roberta P. Gilligan,
his attorney-in-fact
TENANT: CENTURY SOUTHWEST CABLE TELEVISION, INC.,
a Delaware corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
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