California-Laguna Hills-24422 Avenida de la Carlota Lease - EOP-Oakbrook Plaza Laguna LLC and eLiberation.com Corp.
OAKBROOK PLAZA
Laguna Hills, California
OFFICE LEASE AGREEMENT
BETWEEN
EOP-OAKBROOK PLAZA LAGUNA, L.L.C., a Delaware limited liability company
("LANDLORD")
AND
ELIBERATION.COM CORPORATION, a Delaware corporation
("TENANT")
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TABLE OF CONTENTS
I. Basic Lease information ......................................... 1
II. Lease Grant ..................................................... 2
III. Adjustment of Commencement Date; Possession ..................... 2
IV. Rent ............................................................ 3
V. Compliance with Laws; Use ....................................... 6
VI. Security Deposit ................................................ 6
VII. Services to be Furnished by Landlord ............................ 7
VIII. Leasehold Improvements .......................................... 8
IX. Repairs and Alterations ......................................... 8
X. Use of Electrical Services by Tenant ............................ 9
XI. Entry by Landlord ............................................... 10
XII. Assignment and Subletting ....................................... 10
XIII. Liens ........................................................... 11
XIV. Indemnity and Waiver of Claims .................................. 12
XV. Insurance ....................................................... 12
XVI. Subrogation ..................................................... 13
XVII. Casualty Damage ................................................. 13
XVIII. Condemnation .................................................... 14
XIX. Events of Default ............................................... 14
XX. Remedies ........................................................ 15
XXI. Limitation of Liability ......................................... 16
XXII. No Waiver ....................................................... 16
XXIII. Quiet Enjoyment ................................................. 16
XXIV. Relocation ...................................................... 16
XXV. Holding Over .................................................... 17
XXVI. Subordination to Mortgages; Estoppel Certificate ................ 17
XXVII. Attorneys' Fees ................................................. 17
XXVIII. Notice .......................................................... 17
XXIX. Excepted Rights ................................................. 18
XXX. Surrender of Premises ........................................... 18
XXXI. Miscellaneous ................................................... 18
XXXII. Entire Agreement ................................................ 20
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OFFICE LEASE AGREEMENT
THIS OFFICE LEASE AGREEMENT (the "Lease") is made and entered into as of
the 26th day of June, 2002 and between EOP-OAKBROOK PLAZA LAGUNA, L.L.C., a
Delaware limited liability company ("Landlord") and ELIBERATION.COM CORPORATION,
a Delaware corporation ("Tenant").
I. BASIC LEASE INFORMATION.
A. "Building" shall mean the building located at 24422 Avenida de la
Carlota, Laguna Hills, California, commonly known as Oakbrook Plaza.
B. "Rentable Square Footage of the Building" is deemed to be 119,505
square feet.
C. "Premises" shall mean the area shown on Exhibit A to this Lease. The
Premises are located on the 1st floor and known as suite number 120.
The "Rentable Square Footage of the Premises" is deemed to be 8,589
square feet. If the Premises include one or more floors in their
entirety, all corridors and restroom facilities located on such full
floor(s) shall be considered part of the Premises. Landlord and
Tenant stipulate and agree that the Rentable Square Footage of the
Building and the Rentable Square Footage of the Premises are correct
and shall not be remeasured.
D. "Base Rent":
ANNUAL RATE
PERIOD OR PER SQUARE ANNUAL MONTHLY
MONTHS FOOT BASE RENT BASE RENT
------ ---- --------- ---------
1-12 $21.60 $185,522.40 $15,460.20
13-24 $22.80 $195,829.20 $16,319.10
25-36 $24.00 $206,136.00 $17,178.00
37-48 $25.20 $216,442.80 $18,036.90
49-60 $26.40 $226,749.60 $18,895.80
Notwithstanding the above schedule of Base Rent to the contrary, as
along as Tenant is not in default, Tenant shall be entitled to an
abatement in the aggregate amount of $15,460.20 (i.e. $3,865.05 per
month) (the "Abated Base Rent") for the 1st, 2nd, 3rd and 4th full
calendar months of the Term (the "Abatement Period"). In the event
Tenant defaults at any time during the Term, all Abated Base Rent
shall immediately become due and payable. The payment by Tenant of
the Abated Base Rent in the event of a default shall not limit or
affect any of Landlord's other rights, pursuant to this Lease or at
law or in equity. Only Base Rent shall be abated during the
Abatement Period and all other Additional Rent and other costs and
charges specified in this Lease shall remain as due and payable
pursuant to the provisions of the Lease.
E. "Tenant's Pro Rata Share": 7.1871%
F. "Base Year" for Taxes: 2002; "Base Year" for Expenses: 2002.
G. "Term": A period of 60 months. The Term shall Retroactively commence
on April 1, 2002 (the "Commencement Date") and, unless terminated
early in accordance with this Lease, end on March 31, 2007 (the
"Termination Date").
H. Tenant allowance(s): None.
I. "Security Deposit": $20,785.00 in the form of a cash Security
Deposit and $100,000.00 in the form of a Letter of Credit (as
defined in Article VI of this Lease).
J. "Guarantor(s)": As of the date of this Lease, there are no
Guarantor(s).
K. "Broker(s)": Colliers Seeley.
L. "Permitted Use" General office use.
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M. "Notice Addresses":
Tenant:
On and after the Commencement Date, notices shall be sent to Tenant
at the Premises. Prior to the Commencement Date, notices shall be
sent to Tenant at the following address:
24422 Avenida de la Carlota
Suite 120
Laguna Hills, California 92653
Phone #: (949) 784-0800
Fax #: (949) 784-0880
Attn: David P. Noyes, CFO
Landlord: With a copy to.
EOP-OAKBROOK PLAZA Equity Office Properties Trust
LAGUNA, L.L.C. Two North Riverside Plaza
c/o Equity Office Properties Suite 2100
Trust Chicago, Illinois 60606
2600 Michelson Drive Attention: Regional Counsel -
Suite 160 Los Angeles Region
Irvine, California 92612
Attention: Property Manager
Rent (defined in Section IV.A) is payable to the order of Equity
Office Properties at the following address: EOP-OAKBROOK PLAZA
LAGUNA, L.L.C., DEPARTMENT 15540, P.O. BOX 60077, LOS ANGELES,
CALIFORNIA 90060-0077.
N. "Business Day(s)" are Monday through Friday of each week, exclusive
of New Year's Day, President's Day, Memorial Day, Independence Day,
Labor Day, Thanksgiving Day and Christmas Day ("Holidays"). Landlord
may designate additional Holidays, provided that the additional
Holidays are commonly recognized by other office buildings in the
area where the Building is located.
O. Intentionally omitted.
P. "Law(s)" means all applicable statutes, codes, ordinances, orders,
rules and regulations of any municipal or governmental entity Q,
"Normal Business Hours" for the Building are 8 A.M. to 6 P.M. on
Business Days.
R. "Property" means the Building and the parcel(s) of land on which it
is located and, at Landlord's discretion, the landscaping, the
parking facilities and all other improvements owned by Landlord and
serving the Building and the tenants thereof and the parcel(s) of
land on which they are located.
II. LEASE GRANT.
Landlord leases the Premises to Tenant and Tenant leases the Premises from
Landlord, together with the right in common with others to use any portions of
the Property that are designated by Landlord for the common use of tenants and
others, such as sidewalks, unreserved parking areas, common corridors, elevator
foyers, restrooms, vending areas and lobby areas (the "Common Areas").
III. ADJUSTMENT OF COMMENCEMENT DATE; POSSESSION.
A. Intentionally omitted.
B. Subject to Landlord's obligations under Section IX. B., the Premises
are accepted by Tenant in "as is" condition and configuration. By
taking possession of the Premises, Tenant agrees that the Premises
are in good order and satisfactory condition, and that there are no
representations or warranties by Landlord regarding the condition of
the Premises or the Building
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C. If Tenant takes possession of the Premises before the Commencement
Date, such possession shall be subject to the terms and conditions
of this Lease and Tenant shall pay Rent (defined in Section IV.A.)
to Landlord for each day of possession before the Commencement Date.
However, except for the cost of services requested by Tenant (e.g.
freight elevator usage), Tenant shall not be required to pay Rent
for any days of possession before the Commencement Date during which
Tenant, with the approval of Landlord, is in possession of the
Premises for the sole purpose of performing improvements or
installing furniture, equipment or other personal property.
IV. RENT.
A Payments. As consideration for this Lease, Tenant shall pay
Landlord, without any setoff or deduction, the total amount of Base
Rent and Additional Rent due for the Term. "Additional Rent" means
all sums (exclusive of Base Rent) that Tenant is required to pay
Landlord. Additional Rent and Base Rent are sometimes collectively
referred to as "Rent". Tenant shall pay and be liable for all
rental, sales and use taxes (but excluding income taxes), if any,
imposed upon or measured by Rent under applicable Law. Base Rent and
recurring monthly charges of Additional Rent shall be due and
payable in advance on the first day of each calendar month without
notice or demand, provided that the installment of Base Rent for the
first full calendar month of the Term shall be payable upon the
execution of this Lease by Tenant. All other items of Rent shall be
due and payable by Tenant on or before 30 days after billing by
Landlord. All payments of Rent shall be by good and sufficient check
or by other means (such as automatic debit or electronic transfer)
acceptable to Landlord. If Tenant fails to pay any item or
installment of Rent when due, Tenant shall pay Landlord an
administration fee equal to 5% of the past due Rent, provided that
Tenant shall be entitled to a grace period of 5 days for the first 2
late payments of Rent in a given calendar year. If the Term
commences on a day other than the first day of a calendar month or
terminates on a day other than the last day of a calendar month, the
monthly Base Rent and Tenant's Pro Rata Share of any Tax Excess
(defined in Section IV.B. ) or Expense Excess (defined in Section
IV.B.) for the month shall be prorated based on the number of days
in such calendar month. Landlord's acceptance of less than the
correct amount of Rent shall be considered a payment on account of
the earliest Rent due. No endorsement or statement on a check or
letter accompanying a check or payment shall be considered an accord
and satisfaction, and either party may accept the check or payment
without prejudice to that party's right to recover the balance or
pursue other available remedies. Tenant's covenant to pay Rent is
independent of every other covenant in this Lease.
B. Expense Excess and Tax Excess. Tenant shall pay Tenant's Pro Rata
Share of the amount, if any, by which Expenses (defined in Section
IV.C.) for each calendar year during the Term exceed Expenses for
the Base Year (the "Expense Excess") and also the amount, if any, by
which Taxes (defined in Section IV.D.) for each calendar year
during the Term exceed Taxes for the Base Year (the "Tax Excess").
If Expenses and/or Taxes in any calendar year decrease below the
amount of Expenses and/or Taxes for the Base Year, Tenant's Pro Rata
Share of Expenses and/or Taxes, as the case may be, for that
calendar year shall be 50. Landlord shall provide Tenant with a good
faith estimate of the Expense Excess and of the Tax Excess for each
calendar year during the Term. On or before the first day of each
month, Tenant shall pay to Landlord a monthly installment equal to
one-twelfth of Tenant's Pro Rata Share of Landlord's estimate of the
Expense Excess and one-twelfth of Tenant's Pro Rata Share of
Landlord's estimate of the Tax Excess. If Landlord determines that
its good faith estimate of the Expense Excess or of the Tax Excess
was incorrect by a material amount, Landlord may provide Tenant with
a revised estimate. After its receipt of the revised estimate,
Tenant's monthly payments shall be based upon the revised estimate.
If Landlord does not provide Tenant with an estimate of the Expense
Excess or of the Tax Excess by January 1 of a calendar year, Tenant
shall continue to pay monthly installments based on the previous
year's estimates(s) until Landlord provides Tenant with the new
estimate. Upon delivery of the new estimate, an adjustment shall be
made for any month for which Tenant paid monthly installments based
on the previous year's estimate(s). Tenant shall pay Landlord the
amount of any underpayment within 30 days after receipt of the new
estimate. Any overpayment shall be refunded to
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Tenant within 30 days or credited against the next due future
installment(s) of Additional Rent.
As soon as is practical following the end of each calendar year,
Landlord shall furnish Tenant with a statement of the actual
Expenses and Expense Excess and the actual Taxes and Tax Excess for
the prior calendar year. If the estimated Expense Excess and/or
estimated Tax Excess for the prior calendar year is more than the
actual Expense Excess and/or actual Tax Excess, as the case may be,
for the prior calendar year, Landlord shall apply any overpayment by
Tenant against Additional Rent due or next becoming due, provided if
the Term expires before the determination of the overpayment,
Landlord shall refund any overpayment to Tenant after first
deducting the amount of Rent due. If the estimated Expense Excess
and/or estimated Tax Excess for the prior calendar year is less than
the actual Expense Excess and/or actual Tax Excess, as the case may
be, for such prior year, Tenant shall pay Landlord, within 30 days
after its receipt of the statement of Expenses and/or Taxes, any
underpayment for the prior calendar year.
C. Expenses Defined "Expenses" means all costs and expenses incurred in
each calendar year in connection with operating, maintaining,
repairing, and managing the Building and the Property, including,
but not limited to:
1. Labor costs, including, wages, salaries, social security and
employment taxes, medical and other types of insurance,
uniforms, training, and retirement and pension plans.
2. Management fees, the cost of equipping and maintaining a
management office, accounting and bookkeeping services, legal
fees not attributable to leasing or collection activity, and
other administrative costs. Landlord, by itself or through an
affiliate, shall have the right to directly perform or provide
any services under this Lease (including management services),
provided that the cost of any such services shall not exceed
the cost that would have been incurred had Landlord entered
into an arms-length contract for such services with an
unaffiliated entity of comparable skill and experience.
3. The cost of services, including amounts paid to service
providers and the rental and purchase cost of parts, supplies,
tools and equipment.
4. Premiums and deductibles paid by Landlord for insurance,
including workers compensation, fire and extended coverage,
earthquake, general liability, rental loss, elevator, boiler
and other insurance customarily carried from time to time by
owners of comparable office buildings.
5. Electrical Costs (defined below) and charges for water, gas,
steam and sewer, but excluding those charges for which
Landlord is reimbursed by tenants. "Electrical Costs" means:
(a) charges paid by Landlord for electricity; (b) costs
incurred in connection with an energy management program for
the Property, and (c) if and to the extent permitted by Law, a
fee for the services provided by Landlord in connection with
the selection of utility companies and the negotiation and
administration of contracts for electricity, provided that
such fee shall not exceed 50% of any savings obtained by
Landlord. Electrical Costs shall be adjusted as follows (i)
amounts received by Landlord as reimbursement for above
standard electrical consumption shall be deducted from
Electrical Costs; (ii) the cost of electricity incurred to
provide overtime HVAC to specific tenants (as reasonably
estimated by Landlord) shall be deducted from Electrical
Costs; and (iii) if Tenant is billed directly for the cost of
building standard electricity to the Premises as a separate
charge in addition to Base Rent, the cost of electricity to
individual tenant spaces in the Building shall be deducted
from Electrical Costs. Notwithstanding anything in this Lease
to the contrary, for purposes of determining Expenses for any
calendar year subsequent to the Base Year, Electrical Costs
shall be deemed to be the greater of Electrical Costs incurred
during the Base Year and Electrical Costs for the applicable
calendar year.
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6 The amortized cost of capital improvements (as distinguished
from replacement part or components installed in the ordinary
course of business) made to the Property which are: (a)
performed primarily to reduce operating expense costs or
otherwise improve the operating efficiency of the Property; or
(b) required to comply with any Laws that are enacted, or
first interpreted to apply to the Property, after the date of
this Lease. The cost of capital improvements shall be
amortized by Landlord over the lesser of the Payback Period
(defined below) or 5 years. The amortized cost of capital
improvements may, at Landlord's option, include actual or
imputed interest at the rate that Landlord would reasonably be
required to pay to finance the cost of the capital
improvement. "Payback Period" means the reasonably estimated
period of time that it takes for the cost savings resulting
from a capital improvement to equal the total cost of the
capital improvement.
7. All fees, costs, expenses or other amounts payable by Landlord
to any association established for the benefit of the Property
and/or other properties.
If Landlord incurs Expenses for the Property together with one or
more other buildings or properties, whether pursuant to a reciprocal
easement agreement, common area agreement or otherwise, the shared
costs and expenses shall be equitably prorated and apportioned
between the Property and the other buildings or properties. Expenses
shall not include: the cost of capital improvements (except as set
forth above); depreciation; interest (except as provided above for
the amortization of capital improvements); principal payments of
mortgage and other non-operating debts of Landlord; the cost of
repairs or other work to the extent Landlord is reimbursed by
insurance or condemnation proceeds; costs in connection with leasing
space in the Building, including brokerage commissions: lease
concessions, including rental abatements and construction
allowances, granted to specific tenants; costs incurred in
connection with the sale, financing or refinancing of the Building;
fines, interest and penalties incurred due to the late payment of
Taxes (defined in Section IV. D) or Expenses; organizational
expenses associated with the creation and operation of the entity
which constitutes Landlord; or any penalties or damages that
Landlord pays to Tenant under this Lease or to other tenants in the
Building under their respective leases. If the Building is not at
least 95% occupied during any calendar year or if Landlord is not
supplying services to at least 95% of the total Rentable Square
Footage of the Building at any time during a calendar year, Expenses
shall, at Landlord's option, be determined as if the Building had
been 95% occupied and Landlord had been supplying services to 95% of
the Rentable Square Footage of the Building during that calendar
year. If Tenant pays for its Pro Rata Share of Expenses based on
increases over a "Base Year" and Expenses for a calendar year are
determined as provided in the prior sentence, Expenses for the Base
Year shall also be determined as if the Building had been 95%
occupied and Landlord had been supplying services to 95% of the
Rentable Square Footage of the Building The extrapolation of
Expenses under this Section shall be performed by appropriately
adjusting the cost of those components of Expenses that are impacted
by changes in the occupancy of the Building.
D. Taxes Defined. "Taxes" shall mean: (1) all real estate taxes and
other assessments on the Building and/or Property, including, but
not limited to, assessments for special improvement districts and
building improvement districts, taxes and assessments levied in
substitution or supplementation in whole or in part of any such
taxes and assessments and the Property's share of any real estate
taxes and assessments under any reciprocal easement agreement,
common area agreement or similar agreement as to the Property; (2)
all personal property taxes for property that is owned by Landlord
and used in connection with the operation, maintenance and repair of
the Property; and (3) all costs and fees incurred in connection with
seeking reductions in any tax liabilities described in (1) and (2),
including, without limitation, any costs incurred by Landlord for
compliance, review and appeal of tax liabilities. Without
limitation, Taxes shall not include any income, capital levy,
franchise, capital stock, gift, estate or inheritance tax. If an
assessment is payable in installments, Taxes for the year shall
include the amount of the installment and any interest due and
payable during that year. For all other real estate taxes, Taxes for
that year shall, at Landlord's election, include either the amount
accrued, assessed or
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otherwise imposed for the year or the amount due and payable for
that year, provided that Landlord's election shall be applied
consistently throughout the Term. If a change in Taxes is obtained
for any year of the Term during which Tenant paid Tenant's Pro Rata
Share of any Tax Excess, then Taxes for that year will be
retroactively adjusted and Landlord shall provide Tenant with a
credit, if any, based on the adjustment. Likewise, if a change is
obtained for Taxes for the Base Year, Taxes for the Base Year shall
be restated and the Tax Excess for all subsequent years shall be
recomputed. Tenant shall pay Landlord the amount of Tenant's Pro
Rata Share of any such increase in the Tax Excess within 30 days
after Tenant's receipt of a statement from Landlord.
E. Audit Rights. Tenant may, within 90 days after receiving Landlord's
statement of Expenses, give Landlord written notice ("Review
Notice") that Tenant intends to review Landlord's records of the
Expenses for that calendar year. Within a reasonable time after
receipt of the Review Notice, Landlord shall make all pertinent
records available for inspection that are reasonably necessary for
Tenant to conduct its review. If any records are maintained at a
location other than the office of the Building, Tenant may either
inspect the records at such other location or pay for the reasonable
cost of copying and shipping the records. If Tenant retains an agent
to review Landlord's records, the agent must be with a licensed CPA
firm. Tenant shall be solely responsible for all costs, expenses and
fees incurred for the audit. Within 60 days after the records are
made available to Tenant, Tenant shall have the right to give
Landlord written notice (an "Objection Notice") stating in
reasonable detail any objection to Landlord's statement of Expenses
for that year. If Tenant fails to give Landlord an Objection Notice
within the 60 day period or fails to provide Landlord with a Review
Notice within the 90 day period described above, Tenant shall be
deemed to have approved Landlord's statement of Expenses and shall
be barred from raising any claims regarding the Expenses for that
year. If Tenant provides Landlord with a timely Objection Notice,
Landlord and Tenant shall work together in good faith to resolve any
issues raised in Tenant's Objection Notice. If Landlord and Tenant
determine that Expenses for the calendar year are less than
reported, Landlord shall provide Tenant with a credit against the
next installment of Rent in the amount of the overpayment by Tenant.
Likewise, if Landlord and Tenant determine that Expenses for the
calendar year are greater than reported, Tenant shall pay Landlord
the amount of any underpayment within 30 days. The records obtained
by Tenant shall be treated as confidential. In no event shall Tenant
be permitted to examine Landlord's records or to dispute any
statement of Expenses unless Tenant has paid and continues to pay
all Rent when due.
V. COMPLIANCE WITH LAWS; USE.
The Premises shall be used only for the Permitted Use and for no other use
whatsoever. Tenant shall not use or permit the use of the Premises for any
purpose which is illegal, dangerous to persons or property or which, in
Landlord's reasonable opinion, unreasonably disturbs any other tenants of the
Building or interferes with the operation of the Building. Tenant shall comply
with all Laws, including the Americans with Disabilities Act, regarding the
operation of Tenant's business and the use, condition, configuration and
occupancy of the Premises. Tenant, within 10 days after receipt, shall provide
Landlord with copies of any notices it receives regarding a violation or alleged
violation of any Laws. Tenant shall comply with the rules and regulations of the
Building attached as Exhibit B and such other reasonable rules and regulations
adopted by Landlord from time to time. Tenant shall also cause its agents,
contractors, subcontractors, employees, customers, and subtenants to comply with
all rules and regulations. Landlord shall not knowingly discriminate against
Tenant in Landlord's enforcement of the rules and regulations.
VI. SECURITY DEPOSIT.
The Security Deposit, if any, shall be delivered to Landlord upon the
execution of this Lease by Tenant and shall be held by Landlord without
liability for interest (unless required by Law) as security for the performance
of Tenant's obligations. The Security Deposit is not an advance payment of Rent
or a measure of Tenant's liability for damages. Landlord may, from time to time,
without prejudice to any other remedy, use all or a portion of the Security
Deposit to satisfy past due Rent or to cure any uncured default by Tenant. If
Landlord uses the Security Deposit, Tenant shall on demand restore the Security
Deposit to its original amount. Landlord shall return any unapplied portion of
the Security Deposit to Tenant within 45 days after the
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later to occur of: (1) the determination of Tenant's Pro Rata Share of any Tax
Excess and Expense Excess for the final year of the Term: (2) the date Tenant
surrenders possession of the Premises to Landlord in accordance with this Lease;
or (3) the Termination Date. If Landlord transfers its interest in the Premises,
Landlord may assign the Security Deposit to the transferee and, following the
assignment, Landlord shall have no further liability for the return of the
Security Deposit. Landlord shall not be required to keep the Security Deposit
separate from its other accounts. Tenant hereby waives the provisions of Section
1950.7 of the California Civil Code, or any similar or successor Laws now or
hereinafter in effect.
A part of the Security Deposit may be in the form of an irrevocable letter
of credit (the "Letter of Credit"), which Letter of Credit shall: (a) be in the
amount of $100,000.00; (b) be issued on the form attached hereto as Exhibit G;
(c) name Landlord as its beneficiary, and (d) be drawn on an FDIC insured
financial institution satisfactory to the Landlord. The Letter of Credit (and
any renewals or replacements thereof) shall be for a term of not less than 1
year. Tenant agrees that it shall from time to time, as necessary, whether as a
result of a draw on the Letter of Credit by Landlord pursuant to the terms
hereof or as a result of the expiration of the Letter of Credit then in effect,
renew or replace the original and any subsequent Letter of Credit so that a
Letter of Credit, in the amount required hereunder, is in effect until a date
which is at least 60 days after the Termination Date of the Lease. If Tenant
fails to furnish such renewal or replacement at least 60 days prior to the
stated expiration date of the Letter of Credit then held by Landlord, Landlord
may draw upon such Letter of Credit and hold the proceeds thereof (and such
proceeds need not be segregated) as a Security Deposit pursuant to the terms of
this Article VI. Any renewal or replacement of the original or any subsequent
Letter of Credit shall meet the requirements for the original Letter of Credit
as set forth above, except that such replacement or renewal shall be issued by
an FDIC insured financial institution satisfactory to the Landlord at the time
of the issuance thereof.
If Landlord draws on the Letter of Credit as permitted in this Lease or
the Letter of Credit, then, upon demand of Landlord, Tenant shall restore the
amount available under the Letter of Credit to its original amount by providing
Landlord with an amendment to the Letter of Credit evidencing that the amount
available under the Letter of Credit has been restored to its original amount.
In the alternative, Tenant may provide Landlord with cash, to be held by
Landlord in accordance with this Article, equal to the restoration amount
required under the Letter of Credit.
Subject to the remaining terms of this Article VI, Tenant shall have the
right to reduce the amount of the Security Deposit so that the new Security
Deposit amounts will be as follows: (i) $80,000.00 effective as of April 1,
2003; (ii) $64,000.00 effective as of April 1, 2004; (iii) $51,200.00 effective
as of April 1, 2005; and (iv) $40,960.00 effective as of April 1, 2006. However,
notwithstanding anything to the contrary contained herein, if Tenant has been in
default under this Lease at any time prior to the effective date of any
reduction of the Security Deposit and Tenant has failed to cure such default
within any applicable cure period, then Tenant shall have no further right to
reduce the amount of the Security Deposit as described herein.
Notwithstanding the foregoing to the contrary, in the event Tenant
maintains a minimum annual profit of $500,000.00 for 2 consecutive calendar
years, Tenant may provide to Landlord Tenant's then current financial statements
audited by an independent certified public accountant. Such financial statements
shall be prepared in accordance with generally accepted accounting principles
and, at a minimum, identify Tenant's annual revenues and operating profit
(exclusive of revenues and operating profit of Tenant's affiliates, subsidiaries
or other related companies). Should the financial statements for the then
current calendar year demonstrate to Landlord's satisfaction that Tenant's then
minimum annual profit is in excess of $500,000.00 in cash or other marketable
securities, Tenant shall no longer be required to provide that portion of the
Security Deposit covered by the Letter of Credit.
VII. SERVICES TO BE FURNISHED BY LANDLORD.
A. Landlord agrees to furnish Tenant with the following services: (1)
Water service for use in the lavatories on each floor on which the
Premises are located; (2) Heat and air conditioning in season during
Normal Business Hours, at such temperatures and in such amounts as
are standard for comparable buildings or as required by governmental
authority. Tenant, upon such advance notice as is reasonably
required by Landlord, shall have the right to receive HVAC service
during hours other than Normal Business Hours. Tenant shall pay
Landlord the standard charge for the additional service as
reasonably determined by Landlord from time to time; (3) Maintenance
and repair of the Property as described in Section IX.B.; (4)
Janitor service on Business Days. If Tenant's use, floor
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covering or other improvements require special services in excess of
the standard services for the Building. Tenant shall pay the
additional cost attributable to the special services; (5) Elevator
service; (6) Electricity to the Premises for general office use, in
accordance with and subject to the terms and conditions in Article
X; and (7) such other services as Landlord reasonably determines are
necessary or appropriate for the Property.
B. Landlord's failure to furnish, or any interruption or termination
of, services due to the application of Laws, the failure of any
equipment, the performance of repairs, improvements or alterations,
or the occurrence of any event or cause beyond the reasonable
control of Landlord (a "Service Failure") shall not render Landlord
liable to Tenant, constitute a constructive eviction of Tenant, give
rise to an abatement of Rent, nor relieve Tenant from the obligation
to fulfill any covenant or agreement. However, if the Premises, or a
material portion of the Premises, is made untenantable for a period
in excess of 3 consecutive Business Days as a result of the Service
Failure, then Tenant, as its sole remedy, shall be entitled to
receive an abatement of Rent payable hereunder during the period
beginning on the 4th consecutive Business Day of the Service Failure
and ending on the day the service has been restored. If the entire
Premises has not been rendered untenantable by the Service Failure,
the amount of abatement that Tenant is entitled to receive shall be
prorated based upon the percentage of the Premises rendered
untenantable and not used by Tenant. In no event, however, shall
Landlord be liable to Tenant for any loss or damage, including the
theft of Tenant's Property (defined in Article XV), arising out of
or in connection with the failure of any security services.
personnel or equipment.
VIII. LEASEHOLD IMPROVEMENTS.
All improvements to the Premises (collectively, "Leasehold Improvements")
shall be owned by Landlord and shall remain upon the Premises without
compensation to Tenant. However, Landlord, by written notice to Tenant within 30
days prior to the Termination Date, may require Tenant to remove, at Tenant's
expense: (1) Cable (defined in Section IX.A) installed by or for the exclusive
benefit of Tenant and located in the Premises or other portions of the Building;
and (2) any Leasehold Improvements that are performed by or for the benefit of
Tenant and, in Landlord's reasonable judgment, are of a nature that would
require removal and repair costs that are materially in excess of the removal
and repair costs associated with standard office improvements (collectively
referred to as "Required Removables"). Without limitation, it is agreed that
Required Removables include internal stairways, raised floors, personal baths
and showers, vaults, rolling file systems and structural alterations and
modifications of any type. The Required Removables designated by Landlord shall
be removed by Tenant before the Termination Date, provided that upon prior
written notice to Landlord, Tenant may remain in the Premises for up to 5 days
after the Termination Date for the sole purpose of removing the Required
Removables. Tenant's possession of the Premises shall be subject to all of the
terms and conditions of this Lease, including the obligation to pay Rent on a
per diem basis at the rate in effect for the last month of the Term. Tenant
shall repair damage caused by the installation or removal of Required
Removables. If Tenant fails to remove any Required Removables or perform related
repairs in a timely manner, Landlord, at Tenant's expense, may remove and
dispose of the Required Removables and perform the required repairs. Tenant,
within 30 days after receipt of an invoice, shall reimburse Landlord for the
reasonable costs incurred by Landlord. Notwithstanding the foregoing, Tenant, at
the time it requests approval for a proposed Alteration (defined in Section IX.
C), may request in writing that Landlord advise Tenant whether the Alteration or
any portion of the Alteration will be designated as a Required Removable. Within
10 days after receipt of Tenant's request, Landlord shall advise Tenant in
writing as to which portions of the Alteration, if any, will be considered to be
Required Removables.
IX. REPAIRS AND ALTERATIONS.
A. Tenant's Repair Obligations. Tenant shall, at its sole cost and
expense, promptly perform all maintenance and repairs to the
Premises that are not Landlord's express responsibility under this
Lease, and shall keep the Premises in good condition and repair,
reasonable wear and tear excepted. Tenant's repair obligations
include, without limitation, repairs to: (1) floor covering; (2)
interior partitions; (3) doors; (4) the interior side of demising
walls; (5) electronic, phone and data cabling and related equipment
(collectively', "Cable") that is installed by or for the exclusive
benefit of Tenant and located in the Premises or other portions of
the Building, (6) supplemental air conditioning units, private
showers
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and kitchens, including hot water heaters, plumbing, and similar
facilities serving Tenant exclusively; and (7) Alterations performed
by contractors retained by Tenant, including related HVAC balancing.
All work shall be performed in accordance with the rules and
procedures described in Section IX.C. below. If Tenant fails to make
any repairs to the Premises for more than 15 days after notice from
Landlord (although notice shall not be required if there is an
emergency), Landlord may make the repairs, and Tenant shall pay the
reasonable cost of the repairs to Landlord within 30 days after
receipt of an invoice, together with an administrative charge in an
amount equal to 10% of the cost of the repairs.
B. Landlord's Repair Obligations. Landlord shall keep and maintain in
good repair and working order and make repairs to and perform
maintenance upon: (1) structural elements of the Building; (2)
mechanical (including HVAC), electrical, plumbing and fire/life
safety systems serving the Building in general (3) Common Areas; (4)
the roof of the Building; (5) exterior windows of the Building; and
(6) elevators serving the Building. Landlord shall promptly make
repairs (considering the nature and urgency of the repair) for which
Landlord is responsible. Tenant hereby waives any and all rights
under and benefits of subsection 1 of Section 1932, and Sections
1941 and 1942 of the California Civil Code, or any similar or
successor Laws now or hereinafter in effect.
C. Alterations. Tenant shall not make alterations, additions or
improvements to the Premises or install any Cable in the Premises or
other portions of the Building (collectively referred to as
"Alterations") without first obtaining the written consent of
Landlord in each instance, which consent shall not be unreasonably
withheld or delayed. However, Landlord's consent shall not be
required for any Alteration that satisfies all of the following
criteria (a "Cosmetic Alteration"): (1) is of a cosmetic nature such
as painting, wallpapering, hanging pictures and installing
carpeting; (2) is not visible from the exterior of the Premises or
Building; (3) will not affect the systems or structure of the
Building; and (4) does not require work to be performed inside the
walls or above the ceiling of the Premises. However, even though
consent is not required, the performance of Cosmetic Alterations
shall be subject to all the other provisions of this Section IX.C.
Prior to starting work, Tenant shall furnish Landlord with plans and
specifications reasonably acceptable to Landlord; names of
contractors reasonably acceptable to Landlord (provided that
Landlord may designate specific contractors with respect to Building
systems); copies of contracts; necessary permits and approvals;
evidence of contractor's and subcontractor's insurance in amounts
reasonably required by Landlord, and any security for performance
that is reasonably required by Landlord. Changes to the plans and
specifications must also be submitted to Landlord for its approval.
Alterations shall be constructed in a good and workmanlike manner
using materials of a quality that is at least equal to the quality
designated by Landlord as the minimum standard for the Building.
Landlord may designate reasonable rules, regulations and procedures
for the performance of work in the Building and, to the extent
reasonably necessary to avoid disruption to the occupants of the
Building, shall have the right to designate the time when
Alterations may be performed. Tenant shall reimburse Landlord within
30 days after receipt of an invoice for sums paid by Landlord for
third party examination of Tenant's plans for non-Cosmetic
Alterations. In addition, within 30 days after receipt of an invoice
from Landlord, Tenant shall pay Landlord a fee for Landlord's
oversight and coordination of any non-Cosmetic Alterations equal to
10% of the cost of the non-Cosmetic Alterations Upon completion,
Tenant shall furnish "as-built" plans (except for Cosmetic
Alterations), completion affidavits, full and final waivers of lien
in recordable form, and receipted bills covering all labor and
materials. Tenant shall assure that the Alterations comply with all
insurance requirements and Laws. Landlord's approval of an
Alteration shall not be a representation by Landlord that the
Alteration complies with applicable Laws or will be adequate for
Tenant's use.
X. USE OF ELECTRICAL SERVICES BY TENANT.
A. Electricity used by Tenant in the Premises shall, at Landlord's
option, be paid for by Tenant either: (1) through inclusion in
Expenses (except as provided in Section X.B. for excess usage): (2)
by a separate charge payable by Tenant to Landlord within 30 days
after billing by Landlord, or (3) by separate charge billed by the
applicable utility company and payable directly by Tenant Electrical
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service to the Premises may be furnished by one or more companies
providing electrical generation, transmission and distribution
services, and the cost of electricity may consist of several
different components or separate charges for such services, such as
generation, distribution and stranded cost charges. Landlord shall
have the exclusive right to select any company providing electrical
service to the Premises, to aggregate the electrical service for the
Property and Premises with other buildings, to purchase electricity
through a broker and/or buyers group and to change the providers and
manner of purchasing electricity. Landlord shall be entitled to
receive a fee (if permitted by Law) for the selection of utility
companies and the negotiation and administration of contracts for
electricity, provided that the amount of such fee shall not exceed
50% of any savings obtained by Landlord.
B. Tenant's use of electrical service shall not exceed, either in
voltage, rated capacity, use beyond Normal Business Hours or overall
load, that which Landlord deems to be standard for the Building. If
Tenant requests permission to consume excess electrical service,
Landlord may refuse to consent or may condition consent upon
conditions that Landlord reasonably elects (including without
limitation, the installation of utility service upgrades, meters,
submeters, air handlers or cooling units), and the additional usage
(to the extent permitted by Law), installation and maintenance costs
shall be paid by Tenant. Landlord shall have the right to separately
meter electrical usage for the Premises and to measure electrical
usage by survey or other commonly accepted methods.
XI. ENTRY BY LANDLORD.
Landlord, its agents, contractors and representatives may enter the
Premises to inspect or show the Premises, to clean and make repairs, alterations
or additions to the Premises, and to conduct or facilitate repairs, alterations
or additions to any portion of the Building, including other tenants' premises.
Except in emergencies or to provide janitorial and other Building services after
Normal Business Hours, Landlord shall provide Tenant with reasonable prior
notice of entry into the Premises, which may be given orally. If reasonably
necessary for the protection and safety of Tenant and its employees, Landlord
shall have the right to temporarily close all or a portion of the Premises to
perform repairs, alterations and additions. However, except in emergencies,
Landlord will not close the Premises if the work can reasonably be completed on
weekends and after Normal Business Hours. Entry by Landlord shall not constitute
constructive eviction or entitle Tenant to an abatement or reduction of Rent.
XII. ASSIGNMENT AND SUBLETTING.
A. Except in connection with a Permitted Transfer (defined in Section
XII.E. below), Tenant shall not assign, sublease, transfer or
encumber any interest in this Lease or allow any third party to use
any portion of the Premises (collectively or individually, a
"Transfer") without the prior written consent of Landlord, which
consent shall not be unreasonably withheld if Landlord does not
elect to exercise its termination rights under Section XII.B below.
Without limitation, it is agreed that Landlord's consent shall not
be considered unreasonably withheld if: (1) the proposed
transferee's financial condition does not meet the criteria Landlord
uses to select Building tenants having similar leasehold
obligations; (2) the proposed transferee's business is not suitable
for the Building considering the business of the other tenants and
the Building's prestige, or would result in a violation of another
tenant's rights; (3) the proposed transferee is a governmental
agency or occupant of the Building or Property; (4) Tenant is in
default after the expiration of the notice and cure periods in this
Lease; or (5) any portion of the Building or Premises would likely
become subject to additional or different Laws as a consequence of
the proposed Transfer. Tenant shall not be entitled to receive
monetary damages based upon a claim that Landlord unreasonably
withheld its consent to a proposed Transfer and Tenant's sole remedy
shall be an action to enforce any such provision through specific
performance or declaratory judgment. Tenant hereby waives the
provisions of Section 1995.310 of the California Civil Code, or any
similar or successor Laws, now or hereinafter in effect, and all
other remedies, including, without limitation, any right at law or
equity to terminate this Lease, on its own behalf and, to the extent
permitted under all applicable Laws, on behalf of the proposed
transferee. Any attempted Transfer in violation of this Article
shall, at Landlord's option, be void. Consent by Landlord to one or
more Transfer(s) shall not operate as a waiver of Landlord's rights
to
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approve any subsequent Transfers. In no event shall any Transfer or
Permitted Transfer release or relieve Tenant from any obligation
under this Lease.
B. As part of its request for Landlord's consent to a Transfer, Tenant
shall provide Landlord with financial statements for the proposed
transferee, a complete copy of the proposed assignment, sublease and
other contractual documents and such other information as Landlord
may reasonably request. Landlord shall, by written notice to Tenant
within 30 days of its receipt of the required information and
documentation either: (1) consent to the Transfer by the execution
of a consent agreement in a form reasonably designated by Landlord
or reasonably refuse to consent to the Transfer in writing; or (2)
exercise its right to terminate this Lease with respect to the
portion of the Premises that Tenant is proposing to assign or
sublet. Any such termination shall be effective on the proposed
effective date of the Transfer for which Tenant requested consent.
Tenant shall pay Landlord a review fee of $1,250.00 for Landlord's
review of any Permitted Transfer or requested Transfer, provided if
Landlord's actual reasonable costs and expenses (including
reasonable attorney's fees) exceed $1,250.00, Tenant shall reimburse
Landlord for its actual reasonable costs and expenses in lieu of a
fixed review fee.
C. Tenant shall pay Landlord 50% of all rent and other consideration
which Tenant receives as a result of a Transfer that is in excess of
the Rent payable to Landlord for the portion of the Premises and
Term covered by the Transfer. Tenant shall pay Landlord for
Landlord's share of any excess within 30 days after Tenant's receipt
of such excess consideration. Tenant may deduct from the excess all
reasonable and customary expenses directly incurred by Tenant
attributable to the Transfer (other than Landlord's review fee),
including brokerage fees, legal fees and construction costs. If
Tenant is in Monetary Default (defined in Section XIX.A. below),
Landlord may require that all sublease payments be made directly to
Landlord, in which case Tenant shall receive a credit against Rent
in the amount of any payments received (less Landlord's share of any
excess).
D. Except as provided below with respect to a Permitted Transfer, if
Tenant is a corporation, limited liability company, partnership, or
similar entity, and if the entity which owns or controls a majority
of the voting shares/rights at any time changes for any reason
(including but not limited to a merger, consolidation or
reorganization), such change of ownership or control shall
constitute a Transfer. The foregoing shall not apply so long as
Tenant is an entity whose outstanding stock is listed on a
recognized security exchange, or if at least 80% of its voting stock
is owned by another entity, the voting stock of which is so listed.
E. Tenant may assign its entire interest under this Lease to a
successor to Tenant by purchase, merger, consolidation or
reorganization without the consent of Landlord, provided that all of
the following conditions are satisfied (a "Permitted Transfer"): (1)
Tenant is not in default under this Lease; (2) Tenant's successor
shall own all or substantially all of the assets of Tenant; (3)
Tenant's successor shall have a net worth which is at least equal to
the greater of Tenant's net worth at the date of this Lease or
Tenant's net worth as of the day prior to the proposed purchase,
merger, consolidation or reorganization; (4) the Permitted Use does
not allow the Premises to be used for retail purposes; and (5)
Tenant shall give Landlord written notice at least 30 days prior to
the effective date of the proposed purchase, merger, consolidation
or reorganization Tenant's notice to Landlord shall include
information and documentation showing that each of the above
conditions has been satisfied. If requested by Landlord, Tenant's
successor shall sign a commercially reasonable form of assumption
agreement.
XIII. LIENS.
Tenant shall not permit mechanic's or other liens to be placed upon the
Property, Premises or Tenant's leasehold interest in connection with any work or
service done or purportedly done by or for benefit of Tenant. If a lien is so
placed, Tenant shall, within 10 days of notice from Landlord of the filing of
the lien, fully discharge the lien by settling the claim which resulted in the
lien or by bonding or insuring over the lien in the manner prescribed by the
applicable lien Law. If Tenant fails to discharge the lien, then, in addition to
any other right or remedy of Landlord, Landlord may bond or insure over the lien
or otherwise discharge the lien. Tenant shall reimburse Landlord for any amount
paid by Landlord to bond or insure over the
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lien or discharge the lien, including, without limitation, reasonable attorneys'
fees (if and to the extent permitted by Law) within 30 days after receipt of an
invoice from Landlord
XIV. INDEMNITY AND WAIVER OF CLAIMS.
A. Except to the extent caused by the negligence or willful
misconduct of Landlord or any Landlord Related Parties
(defined below), Tenant shall indemnify, defend and hold
Landlord, its trustees, members, principals, beneficiaries,
partners, officers, directors, employees, Mortgagee(s)
(defined in Article XXVI) and agents ("Landlord Related
Parties") harmless against and from all liabilities,
obligations, damages, penalties, claims, actions, costs,
charges and expenses, including, without limitation,
reasonable attorneys' fees and other professional fees (if and
to the extent permitted by Law), which may be imposed upon,
incurred by or asserted against Landlord or any of the
Landlord Related Parties and arising out of or in connection
with any damage or injury occurring in the Premises or any
acts or omissions (including violations of Law) of Tenant, the
Tenant Related Parties (defined below) or any of Tenant's
transferees, contractors or licensees.
B. Except to the extent caused by the negligence or willful
misconduct of Tenant or any Tenant Related Parties (defined
below), Landlord shall indemnify, defend and hold Tenant, its
trustees, members, principals, beneficiaries, partners,
officers, directors, employees and agents ("Tenant Related
Parties") harmless against and from all liabilities,
obligations, damages, penalties, claims, actions, costs,
charges and expenses, including, without limitation,
reasonable attorneys' fees and other professional fees (if and
to the extent permitted by Law), which may be imposed upon,
incurred by or asserted against Tenant or any of the Tenant
Related Parties and arising out of or in connection with the
acts or omissions (including violations of Law) of Landlord,
the Landlord Related Parties or any of Landlord's contractors.
C. Landlord and the Landlord Related Parties shall not be liable
for, and Tenant waives, all claims for loss or damage to
Tenant's business or loss, theft or damage to Tenant's
Property or the property of any person claiming by, through or
under Tenant resulting from: (1) wind or weather; (2) the
failure of any sprinkler, heating or air-conditioning
equipment, any electric wiring or any gas, water or steam
pipes; (3) the backing up of any sewer pipe or downspout; (4)
the bursting, leaking or running of any tank, water closet,
drain or other pipe; (5) water, snow or ice upon or coming
through the roof, skylight, stairs, doorways, windows, walks
or any other place upon or near the Building; (6) any act or
omission of any party other than Landlord or Landlord Related
Parties; and (7) any causes not reasonably within the control
of Landlord. Tenant shall insure itself against such losses
under Article XV below.
XV. INSURANCE.
Tenant shall carry and maintain the following insurance ("Tenant's
Insurance"), at its sole cost and expense: (1) Commercial General Liability
Insurance applicable to the Premises and its appurtenances providing, on an
occurrence basis, a minimum combined single limit of $2,000,000.00; (2) All Risk
Property/Business Interruption Insurance, including flood and earthquake,
written at replacement cost value and with a replacement cost endorsement
covering all of Tenant's trade fixtures, equipment, furniture and other personal
property within the Premises ("Tenant's Property"); (3) Workers' Compensation
Insurance as required by the state in which the Premises is located and in
amounts as may be required by applicable statute; and (4) Employers Liability
Coverage of at least $1,000,000.00 per occurrence. Any company writing any of
Tenant's Insurance shall have an A.M. Best rating of not less than A-VIII. All
Commercial General Liability Insurance policies shall name Tenant as a named
insured and Landlord (or any successor), Equity Office Properties Trust, a
Maryland real estate investment trust, EOP Operating Limited Partnership, a
Delaware limited partnership, Equity Office Properties Management Corp., a
Delaware corporation, and their respective members, principals, beneficiaries,
partners, officers, directors, employees, and agents, and other designees of
Landlord as the interest of such designees shall appear, as additional insureds.
All policies of Tenant's Insurance shall contain endorsements that the
insurer(s) shall give Landlord and its designees at least 30 days' advance
written notice of any change, cancellation, termination or lapse of insurance.
Tenant shall provide Landlord with a certificate of insurance evidencing
Tenant's Insurance prior to the earlier to occur of the Commencement Date or the
date Tenant is provided with possession of the Premises for any reason, and upon
renewals at least 15 days prior to the expiration of the insurance coverage. So
long as the same is
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available at commercially reasonable rates, Landlord shall maintain so called
All Risk property insurance on the Building at replacement cost value, as
reasonably estimated by Landlord. Except as specifically provided to the
contrary, the limits of either party's insurance shall not limit such party's
liability under this Lease.
XVI. SUBROGATION.
Notwithstanding anything in this Lease to the contrary, Landlord and
Tenant hereby waive and shall cause their respective insurance carriers to waive
any and all rights of recovery, claim; action or causes of action against the
other and their respective trustees, principals beneficiaries, partners,
officers, directors, agents, and employees, for any loss or damage that may
occur to Landlord or Tenant or any party claiming by, through or under Landlord
or Tenant, as the case may be, with respect to Tenant's Property, the Building,
the Premises, any additions or improvements to the Building or Premises, or any
contents thereof, including all rights of recovery, claims, actions or causes of
action arising out of the negligence of Landlord or any Landlord Related Parties
or the negligence of Tenant or any Tenant Related Parties, which loss or damage
is (or would have been, had the insurance required by this Lease been carried)
covered by insurance.
XVII. CASUALTY DAMAGE.
A. If all or any part of the Premises is damaged by fire or other
casualty, Tenant shall immediately notify Landlord in writing.
During any period of time that all or a material portion of
the Premises is rendered untenantable as a result of a fire or
other casualty, the Rent shall abate for the portion of the
Premises that is untenantable and not used by Tenant. Landlord
shall have the right to terminate this Lease if: (1) the
Building shall be damaged so that, in Landlord's reasonable
judgment, substantial alteration or reconstruction of the
Building shall be required (whether or not the Premises has
been damaged); (2) Landlord is not permitted by Law to rebuild
the Building in substantially the same form as existed before
the fire or casualty; (3) the Premises have been materially
damaged and there is less than 2 years of the Term remaining
on the date of the casualty; (4) any Mortgagee requires that
the insurance proceeds be applied to the payment of the
mortgage debt; or (5) a material uninsured loss to the
Building occurs. Landlord may exercise its right to terminate
this Lease by notifying Tenant in writing within 90 days
after the date of the casualty. If Landlord does not terminate
this Lease, Landlord shall commence and proceed with
reasonable diligence to repair and restore the Building and
the Leasehold Improvements (excluding any Alterations that
were performed by Tenant in violation of this Lease). However,
in no event shall Landlord be required to spend more than the
insurance proceeds received by Landlord. Landlord shall not be
liable for any loss or damage to Tenant's Property or to the
business of Tenant resulting in any way from the fire or other
casualty or from the repair and restoration of the damage.
Landlord and Tenant hereby waive the provisions of any Law
relating to the matters addressed in this Article, and agree
that their respective rights for damage to or destruction of
the Premises shall be those specifically provided in this
Lease.
B. If all or any portion of the Premises shall be made
untenantable by fire or other casualty, Landlord shall, with
reasonable promptness, cause an architect or general
contractor selected by Landlord to provide Landlord and Tenant
with a written estimate of the amount of time required to
substantially complete the repair and restoration of the
Premises and make the Premises tenantable again, using
standard working methods ("Completion Estimate"). If the
Completion Estimate indicates that the Premises cannot be made
tenantable within 270 days from the date the repair and
restoration is started, then regardless of anything in Section
XVII. A above to the contrary, either party shall have the
right to terminate this Lease by giving written notice to the
other of such election within 10 days after receipt of the
Completion Estimate. Tenant, however, shall not have the right
to terminate this Lease if the fire or casualty was caused by
the negligence or intentional misconduct of Tenant. Tenant
Related Parties or any of Tenant's transferees, contractors
or licensees.
C. The provisions of this Lease, including this Article XVII,
constitute an express agreement between Landlord and Tenant
with respect to any and all damage to or destruction of, all
or any part of the Premises or the Property, and any Laws
including, without limitation, Sections 1932(2) and 1933(4) of
the California Civil
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Code, with respect to any rights or obligations concerning
damage or destruction in the absence of an express agreement
between the parties, and any similar or successor Laws now or
hereinafter in effect, shall have no application to this Lease
or any damage or destruction to all or any part of the
Premises or the Property.
XVIII. CONDEMNATION.
Either party may terminate this Lease if the whole or any material part
of the Premises shall be taken or condemned for any public or quasi-public use
under Law, by eminent domain or private purchase in lieu thereof (a "Taking").
Landlord shall also have the right to terminate this Lease if there is a Taking
of any portion of the Building or Property which would leave the remainder of
the Building unsuitable for use as an office building in a manner comparable to
the Building's use prior to the Taking. In order to exercise its right to
terminate the Lease, Landlord or Tenant, as the case may be, must provide
written notice of termination to the other within 45 days after the terminating
party first receives notice of the Taking. Any such termination shall be
effective as of the date the physical taking of the Premises or the portion of
the Building or Property occurs. If this Lease is not terminated, the Rentable
Square Footage of the Building, the Rentable Square Footage of the Premises and
Tenant's Pro Rata Share shall, if applicable, be appropriately adjusted. In
addition, Rent for any portion of the Premises taken or condemned shall be
abated during the unexpired Term of this Lease effective when the physical
taking of the portion of the Premises occurs. All compensation awarded for a
Taking, or sale proceeds, shall be the property of Landlord, any right to
receive compensation or proceeds being expressly waived by Tenant. However,
Tenant may file a separate claim at its sole cost and expense for Tenant's
Property and Tenant's reasonable relocation expenses, provided the filing of the
claim does not diminish the award which would otherwise be receivable by
Landlord. Tenant hereby waives any and all rights it might otherwise have
pursuant to Section 1265.130 of the California Code of Civil Procedure, or any
similar or successor Laws.
XIX. EVENTS OF DEFAULT.
Tenant shall be considered to be in default of this Lease upon the
occurrence of any of the following events of default:
A. Tenant's failure to pay when due all or any portion of the
Rent, if the failure continues for 3 days after written notice
to Tenant ("Monetary Default").
B. Tenant's failure (other than a Monetary Default) to comply
with any term, provision or covenant of this Lease, if the
failure is not cured within 10 days after written notice to
Tenant. However, if Tenant's failure to comply cannot
reasonably be cured within 10 days, Tenant shall be allowed
additional time (not to exceed 60 days) as is reasonably
necessary to cure the failure so long as: (1) Tenant commences
to cure the failure within 10 days, and (2) Tenant diligently
pursues a course of action that will cure the failure and
bring Tenant back into compliance with the Lease. However, if
Tenant's failure to comply creates a hazardous condition, the
failure must be cured immediately upon notice to Tenant. In
addition, if Landlord provides Tenant with notice of Tenant's
failure to comply with any particular term, provision or
covenant of the Lease on 3 occasions during any 12 month
period, Tenant's subsequent violation of such term, provision
or covenant shall, at Landlord's option, be an incurable event
of default by Tenant.
C. Tenant or any Guarantor becomes insolvent, makes a transfer in
fraud of creditors or makes an assignment for the benefit of
creditors, or admits in writing its inability to pay its debts
when due.
D. The leasehold estate is taken by process or operation of Law.
E. In the case of any ground floor or retail Tenant, Tenant does
not take possession of, or abandons or vacates all or any
portion of the Premises.
F. Tenant is in default beyond any notice and cure period under
any other lease or agreement with Landlord, including, without
limitation, any lease or agreement for parking.
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XX. REMEDIES.
A. Upon the occurrence of any event or events of default under
this Lease, whether enumerated in Article XIX or not. Landlord
shall have the option to pursue any one or more of the
following remedies without any notice (except as expressly
prescribed herein) or demand whatsoever (and without limiting
the generality of the foregoing, Tenant hereby specifically
waives notice and demand for payment of Rent or other
obligations, except for those notices specifically required
pursuant to the terms of Article XIX or this Article XX, and
waives any and all other notices or demand requirements
imposed by applicable law):
1. Terminate this Lease and Tenant's right to possession
of the Premises and recover from Tenant an award of
damages equal to the sum of the following:
(a) The Worth at the Time of Award of the unpaid
Rent which had been earned at the time of
termination;
(b) The Worth at the Time of Award of the amount
by which the unpaid Rent which would have
been earned after termination until the time
of award exceeds the amount of such Rent
loss that Tenant affirmatively proves could
have been reasonably avoided;
(c) 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
affirmatively proves could be reasonably
avoided;
(d) Any other amount necessary to compensate
Landlord for all the detriment either
proximately caused by Tenant's failure to
perform Tenant's obligations under this
Lease or which in the ordinary course of
things would be likely to result therefrom;
and
(e) All such other amounts in addition to or in
lieu of the foregoing as may be permitted
from time to time under applicable law.
The "Worth at the Time of Award" of the amounts
referred to in parts (a) and (b) above, shall be
computed by allowing interest at the lesser of a per
annum rate equal to: (i) the greatest per annum rate
of interest permitted from time to time under
applicable law, or (ii) the Prime Rate plus 5%. For
purposes hereof, the "Prime Rate" shall be the per
annum interest rate publicly announced as its prime
or base rate by a federally insured bank selected by
Landlord in the State of California. The "Worth at
the Time of Award" of the amount referred to in part
(c), above, shall be computed by discounting such
amount at the discount rate of the Federal Reserve
Bank of San Francisco at the time of award plus 1%;
2. Employ the remedy described in California Civil Code
Section 1951.4 (Landlord may continue this Lease in
effect after Tenant's breach and abandonment and
recover Rent as it becomes due, if Tenant has the
right to sublet or assign, subject only to reasonable
limitations); or
3. Notwithstanding Landlord's exercise of the remedy
described in California Civil Code Section 1951.4 in
respect of an event or events of default, at such
time thereafter as Landlord may elect in writing, to
terminate this Lease and Tenant's right to possession
of the Premises and recover an award of damages as
provided above in Paragraph XX.A.1.
B. The subsequent acceptance of Rent hereunder by Landlord shall
not be deemed to be a waiver of any preceding breach by Tenant
of any term, covenant or condition of this Lease, other than
the failure of Tenant to pay the particular Rent so accepted,
regardless of Landlord's knowledge of such preceding breach at
the time of acceptance of such Rent. No waiver by Landlord of
any breach hereof shall be effective unless such waiver is in
writing and signed by Landlord.
C TENANT HEREBY WAIVES ANY AND ALL RIGHTS CONFERRED BY SECTION
3275 OF THE CIVIL CODE OF CALIFORNIA AND BY
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SECTIONS 1174 (c) AND 1179 OF THE CODE OF CIVIL PROCEDURE Of
CALIFORNIA AND ANY AND ALL OTHER LAWS AND RULES OF LAW FROM
TIME TO TIME IN EFFECT DURING THE LEASE TERM PROVIDING THAT
TENANT SHALL HAVE ANY RIGHT TO REDEEM, REINSTATE OR RESTORE
THIS LEASE FOLLOWING ITS TERMINATION BY REASON OF TENANT'S
BREACH. TENANT ALSO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY LITIGATION
ARISING OUT OF OR RELATING TO THIS LEASE.
D. No right or remedy herein conferred upon or reserved to
Landlord is intended to be exclusive of any other right or
remedy, and each and every right and remedy shall be
cumulative and in addition to any other right or remedy given
hereunder or now or hereafter existing by agreement,
applicable law or in equity. In addition to other remedies
provided in this Lease, Landlord shall be entitled, to the
extent permitted by applicable law, to -injunctive relief, or
to a decree compelling performance of any of the covenants,
agreements, conditions or provisions of this Lease, or to any
other remedy allowed to Landlord at law or in equity.
Forbearance by Landlord to enforce one or more of the remedies
herein provided upon an event of default shall not be deemed
or construed to constitute a waiver of such default.
E. If Tenant is in default, then, to the extent permitted by Law,
Landlord shall be entitled to receive interest on any unpaid
item of Rent at a rate equal to the lesser of the maximum rate
permitted by Law or the Prime Rate plus 4% per annum. For
purposes hereof, the "Prime Rate" shall be the per annum
interest rate publicly announced as its prime or base rate by
a federally insured bank selected by Landlord in the state in
which the Building is located.
F. This Article XX shall be enforceable to the maximum extent
such enforcement is not prohibited by applicable law, and the
unenforceability of any portion thereof shall not thereby
render unenforceable any other portion.
XXI. LIMITATION OF LIABILITY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE, THE
LIABILITY OF LANDLORD (AND OF ANY SUCCESSOR LANDLORD) TO TENANT SHALL BE LIMITED
TO THE INTEREST OF LANDLORD IN THE PROPERTY. TENANT SHALL LOOK SOLELY TO
LANDLORD'S INTEREST IN THE PROPERTY FOR THE RECOVERY OF ANY JUDGMENT OR AWARD
AGAINST LANDLORD. NEITHER LANDLORD NOR ANY LANDLORD RELATED PARTY SHALL BE
PERSONALLY LIABLE FOR ANY JUDGMENT OR DEFICIENCY. BEFORE FILING SUIT FOR AN
ALLEGED DEFAULT BY LANDLORD, TENANT SHALL GIVE LANDLORD AND THE MORTGAGEE(S)
(DEFINED IN ARTICLE XXVI BELOW) WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES
(DEFINED IN ARTICLE XXVI BELOW) ON THE PROPERTY, BUILDING OR PREMISES, NOTICE
AND REASONABLE TIME TO CURE THE ALLEGED DEFAULT
XXII. NO WAIVER.
Either party's failure to declare a default immediately upon its
occurrence, or delay in taking action for a default shall not constitute a
waiver of the default, nor shall it constitute an estoppel. Either party's
failure to enforce its rights for a default shall not constitute a waiver of its
rights regarding any subsequent default. Receipt by Landlord of Tenant's keys to
the Premises shall not constitute an acceptance or surrender of the Premises.
XXIII. QUIET ENJOYMENT.
Tenant shall, and may peacefully have, hold and enjoy the Premises,
subject to the terms of this Lease, provided Tenant pays the Rent and fully
performs all of its covenants and agreements. This covenant and all other
covenants of Landlord shall be binding upon Landlord and its successors only
during its or their respective periods of ownership of the Building, and shall
not be a personal covenant of Landlord or the Landlord Related Parties.
XXIV. RELOCATION.
Landlord, at its expense, at any time before or during the Term, may
relocate Tenant from the Premises to reasonably comparable space ("Relocation
Space") within the Building or adjacent buildings within the same project upon
60 days' prior written notice to Tenant. From
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and after the date of the relocation, "Premises' shall refer to the Relocation
Space into which Tenant has been moved and the Base Rent and Tenant's Pro Rata
Share shall be adjusted based on the rentable square footage of the Relocation
Space Landlord shall pay Tenant's reasonable costs for moving Tenant's furniture
and equipment and printing and distributing notices to Tenant's customers of
Tenant's change of address and one month's supply of stationery showing the new
address.
XXV. HOLDING OVER.
Except for any permitted occupancy by Tenant under Article VIII, if
Tenant fails to surrender the Premises at the expiration or earlier termination
of this Lease, occupancy of the Premises after the termination or expiration
shall be that of a tenancy at sufferance. Tenant's occupancy of the Premises
during the holdover shall be subject to all the terms and provisions of this
Lease and Tenant shall pay an amount (on a per month basis without reduction for
partial months during the holdover) equal to 150% of the greater of: (1) the sum
of the Base Rent and Additional Rent due for the period immediately preceding
the holdover; or (2) the fair market gross rental for the Premises as reasonably
determined by Landlord. No holdover by Tenant or payment by Tenant after the
expiration or early termination of this Lease shall be construed to extend the
Term or prevent Landlord from immediate recovery of possession of the Premises
by summary proceedings or otherwise. In addition to the payment of the amounts
provided above, if Landlord is unable to deliver possession of the Premises to a
new tenant, or to perform improvements for a new tenant, as a result of Tenant's
holdover and Tenant fails to vacate the Premises within 15 days after Landlord
notifies Tenant of Landlord's inability to deliver possession, or perform
improvements, Tenant shall be liable to Landlord for all damages, including,
without limitation, consequential damages, that Landlord suffers from the
holdover.
XXVI. SUBORDINATION TO MORTGAGES; ESTOPPEL CERTIFICATE.
Tenant accepts this Lease subject and subordinate to any mortgage(s),
deed(s) of trust, ground lease(s) or other lien(s) now or subsequently arising
upon the Premises, the Building or the Property, and to renewals, modifications,
refinancings and extensions thereof (collectively referred to as a "Mortgage").
The party having the benefit of a Mortgage shall be referred to as a
"Mortgagee". This clause shall be self-operative, but upon request from a
Mortgagee, Tenant shall execute a commercially reasonable subordination
agreement in favor of the Mortgagee. In lieu of having the Mortgage be superior
to this Lease, a Mortgagee shall have the right at any time to subordinate its
Mortgage to this Lease. If requested by a successor-in-interest to all or a part
of Landlord's interest in the Lease, Tenant shall, without charge, attorn to the
successor-in-interest. Landlord and Tenant shall each, within 10 days after
receipt of a written request from the other, execute and deliver an estoppel
certificate to those parties as are reasonably requested by the other (including
a Mortgagee or prospective purchaser). The estoppel certificate shall include a
statement certifying that this Lease is unmodified (except as identified in the
estoppel certificate) and in full force and effect, describing the dates to
which Rent and other charges have been paid, representing that, to such party's
actual knowledge, there is no default (or stating the nature of the alleged
default) and indicating other matters with respect to the Lease that may
reasonably be requested.
XXVII. ATTORNEYS' FEES.
If either party institutes a suit against the other for violation of or
to enforce any covenant or condition of this Lease, or if either party
intervenes in any suit in which the other is a party to enforce or protect its
interest or rights, the prevailing party shall be entitled to all of its costs
and expenses, including, without limitation, reasonable attorneys' fees.
XXVIII. NOTICE.
If a demand, request, approval, consent or notice (collectively
referred to as a "notice") shall or may be given to either party by the other,
the notice shall be in writing and delivered by hand or sent by registered or
certified mail with return receipt requested, or sent by overnight or same day
courier service at the party's respective Notice Address(es) set forth in
Article I, except that if Tenant has vacated the Premises (or if the Notice
Address for Tenant is other than the Premises, and Tenant has vacated such
address) without providing Landlord a new Notice Address, Landlord may serve
notice in any manner described in this Article or in any other manner permitted
by Law. Each notice shall be deemed to have been received or given on the
earlier to occur of actual delivery or the date on which delivery is refused,
or, if Tenant has vacated the Premises or the other Notice Address of Tenant
without providing a new Notice Address, 3 days after notice is deposited in the
U.S. mail or with a courier service in the manner
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described above. Either party may, at any time, change its Notice Address (other
than to a post office box address) by giving the other party written notice of
the new address in the manner described in this Article.
XXIX. EXCEPTED RIGHTS.
This Lease does not grant any rights to light or air over or about the
Building. Landlord excepts and reserves exclusively to itself the use of: (1)
roofs, (2) telephone, electrical and janitorial closets. (3) equipment rooms,
Building risers or similar areas that are used by Landlord for the provision of
Building services, (4) rights to the land and improvements below the floor of
the Premises, (5) the improvements and air rights above the Premises, (6) the
improvements and air rights outside the demising walls of the Premises, and (7)
the areas within the Premises used for the installation of utility lines and
other installations serving occupants of the Building. Landlord has the right to
change the Building's name or address. Landlord also has the right to make such
other changes to the Property and Building as Landlord deems appropriate,
provided the changes do not materially affect Tenant's ability to use the
Premises for the Permitted Use. Landlord shall also have the right (but not the
obligation) to temporarily close the Building if Landlord reasonably determines
that there is an imminent danger of significant damage to the Building or of
personal injury to Landlord's employees or the occupants of the Building. The
circumstances under which Landlord may temporarily close the Building shall
include, without limitation, electrical interruptions, hurricanes and civil
disturbances. A closure of the Building under such circumstances shall not
constitute a constructive eviction nor entitle Tenant to an abatement or
reduction of Rent.
XXX. SURRENDER OF PREMISES.
At the expiration or earlier termination of this Lease or Tenant's
right of possession, Tenant shall remove Tenant's Property (defined in Article
XV) from the Premises, and quit and surrender the Premises to Landlord, broom
clean, and in good order, condition and repair, ordinary wear and tear excepted.
Tenant shall also be required to remove the Required Removables in accordance
with Article VIII. If Tenant fails to remove any of Tenant's Property within 2
days after the termination of this Lease or of Tenant's right to possession,
Landlord, at Tenant's sole cost and expense, shall be entitled (but not
obligated) to remove and store Tenant's Property. Landlord shall not be
responsible for the value, preservation or safekeeping of Tenant's Property.
Tenant shall pay Landlord, upon demand, the expenses and storage charges
incurred for Tenant's Property. In addition, if Tenant fails to remove Tenant's
Property from the Premises or storage, as the case may be, within 30 days after
written notice, Landlord may deem all or any part of Tenant's Property to be
abandoned, and title to Tenant's Property shall be deemed to be immediately
vested in Landlord.
XXXI. MISCELLANEOUS.
A. This Lease and the rights and obligations of the parties shall
be interpreted, construed and enforced in accordance with the
Laws of the State of California and Landlord and Tenant hereby
irrevocably consent to the jurisdiction and proper venue of
such state. If any term or provision of this Lease shall to
any extent be invalid or unenforceable, the remainder of this
Lease shall not be affected, and each provision of this Lease
shall be valid and enforced to the fullest extent permitted by
Law. The headings and titles to the Articles and Sections of
this Lease are for convenience only and shall have no effect
on the interpretation of any part of the Lease.
B. Tenant shall not record this Lease or any memorandum without
Landlord's prior written consent.
C. Landlord and Tenant hereby waive any right to trial by jury in
any proceeding based upon a breach of this Lease.
D. Whenever a period of time is prescribed for the taking of an
action by Landlord or Tenant, the period of time for the
performance of such action shall be extended by the number of
days that the performance is actually delayed due to strikes,
acts of God, shortages of labor or materials, war, civil
disturbances and other causes beyond the reasonable control of
the performing party ("Force Majeure"). However, events of
Force Majeure shall not extend any period of time for the
payment of Rent or other sums payable by either party or any
period of time for the written exercise of an option or right
by either party.
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E. Landlord shall have the right to transfer and assign, in whole
or in part, all of its rights and obligations under this Lease
and in the Building and/or Property referred to herein, and
upon such transfer Landlord shall be released from any further
obligations hereunder, and Tenant agrees to look solely to the
successor in interest of Landlord for the performance of such
obligations.
F. Tenant represents that it has dealt directly with and only
with the Broker as a broker in connection with this Lease.
Tenant shall indemnify and hold Landlord and the Landlord
Related Parties harmless from all claims of any other brokers
claiming to have represented Tenant in connection with this
Lease. Landlord agrees to indemnify and hold Tenant and the
Tenant Related Parties harmless from all claims of any brokers
claiming to have represented Landlord in connection with this
Lease.
Equity Office Properties Management Corp. ("EOPMC") is an
affiliate of Landlord and represents only the Landlord in this
transaction. Any assistance rendered by any agent or employee
of EOPMC in connection with this Lease or any subsequent
amendment or modification hereto has been or will be made as
an accommodation to Tenant solely in furtherance of
consummating the transaction on behalf of Landlord, and not as
agent for Tenant.
G. Tenant covenants, warrants and represents that: (1) each
individual executing attesting and/or delivering this Lease on
behalf of Tenant is authorized to do so on behalf of Tenant;
(2) this Lease is binding upon Tenant; and (3) Tenant is duly
organized and legally existing in the state of its
organization and is qualified to do business in the State of
California. If there is more than one Tenant, or if Tenant is
comprised of more than one party or entity, the obligations
imposed upon Tenant shall be joint and several obligations of
all the parties and entities. Notices, payments and agreements
given or made by, with or to any one person or entity shall be
deemed to have been given or made by, with and to all of them.
H. Time is of the essence with respect to Tenant's exercise of
any expansion, renewal or extension rights granted to Tenant.
This Lease shall create only the relationship of landlord and
tenant between the parties, and not a partnership, joint
venture or any other relationship. This Lease and the
covenants and conditions in this Lease shall inure only to the
benefit of and be binding only upon Landlord and Tenant and
their permitted successors and assigns.
I. The expiration of the Term, whether by lapse of time or
otherwise, shall not relieve either party of any obligations
which accrued prior to or which may continue to accrue after
the expiration or early termination of this Lease. Without
limiting the scope of the prior sentence, it is agreed that
Tenant's obligations under Articles IV, VIII, XIV, XX, XXV and
XXX shall survive the expiration or early termination of this
Lease.
J. Landlord has delivered a copy of this Lease to Tenant for
Tenant's review only, and the delivery of it does not
constitute an offer to Tenant or an option. This Lease shall
not be effective against any party hereto until an original
copy of this Lease has been signed by such party.
K. All understandings and agreements previously made between the
parties are superseded by this Lease, and neither party is
relying upon any warranty, statement or representation not
contained in this Lease. This Lease may be modified only by a
written agreement signed by Landlord and Tenant.
L. Tenant, within 15 days after request, shall provide Landlord
with a current financial statement and such other information
as Landlord may reasonably request in order to create a
"business profile" of Tenant and determine Tenant's ability to
fulfill its obligations under this Lease. Landlord, however,
shall not require Tenant to provide such information unless
Landlord is requested to produce the information in connection
with a proposed financing or sale of the Building. Upon
written request by Tenant, Landlord shall enter into a
commercially reasonable confidentiality agreement covering any
confidential information that is disclosed by Tenant.
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M. This Lease shall be subject and subordinate to, and Tenant
agrees to perform and comply with, the terms, conditions and
provisions of all documents of record now or hereafter entered
into affecting the Building and the Property.
XXXII. ENTIRE AGREEMENT.
This Lease, including the following exhibits and attachments which are
hereby incorporated into and made a part of this Lease, constitute the entire
agreement between the parties and supersede all prior agreements and
understandings related to the Premises, including all lease proposals, letters
of intent and other documents: EXHIBIT A (Outline and Location of Premises),
EXHIBIT B (Building Rules and Regulations), EXHIBIT C (Intentionally omitted),
EXHIBIT D (Work Letter), EXHIBIT E (Additional Provisions), EXHIBIT F (Parking
Agreement) and EXHIBIT G (Form of Letter of Credit).
Landlord and Tenant have executed this Lease as of the day and year
first above written.
LANDLORD:
EOP-OAKBROOK PLAZA LAGUNA, L.L.C., a Delaware
limited liability company
By: EOP Operating Limited Partnership, a
Delaware limited partnership, its sole
member
By: Equity Office Properties Trust, a
Maryland real estate investment trust,
its general partner
By: /s/ Robert E. Dezzutti
---------------------------------
Name: Robert E. Dezzutti
Title: Senior Vice President
TENANT:
ELIBERATION.COM CORPORATION, a Delaware
corporation
By: /s/ HEATH CLARKE
-----------------------------------
Name: H. CLARKE
Title: CEO
TENANT:
ELIBERATION.COM CORPORATION, a Delaware
corporation
By: /s/ [ILLEGIBLE]
-----------------------------------
Name: [ILLEGIBLE]
Title: CFO
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