California-San Diego-9333 Genesee Avenue Lease - Arden Realty Finance V LLC and Lindows.com Inc.
STANDARD OFFICE LEASE
BY AND BETWEEN
ARDEN REALTY FINANCE V, L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY,
AS LANDLORD,
AND
LINDOWS.COM, INC.,
A DELAWARE CORPORATION DBA DELAWARE LINDOWS.COM, INC.,
AS TENANT
SUITES 250 AND 300
GENESEE EXECUTIVE PLAZA
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TABLE OF CONTENTS
PAGE
ARTICLE 1 BASIC LEASE PROVISIONS.............................. 1
ARTICLE 2 TERM/PREMISES....................................... 1
ARTICLE 3 RENTAL.............................................. 2
(a) Basic Rental........................................ 2
(b) Increase in Direct Costs............................ 2
(c) Definitions......................................... 3
(d) Determination of Payment............................ 5
ARTICLE 4 INTENTIONALLY OMITTED............................... 6
ARTICLE 5 HOLDING OVER........................................ 6
ARTICLE 6 OTHER TAXES......................................... 7
ARTICLE 7 USE................................................. 7
ARTICLE 8 CONDITION OF PREMISES............................... 8
ARTICLE 9 REPAIRS AND ALTERATIONS............................. 8
(a) Landlord's Obligation............................... 8
(b) Tenant's Obligation................................. 8
(c) Alterations......................................... 9
(d) Insurance: Liens.................................... 9
(e) Costs and Fees; Removal............................. 9
ARTICLE 10 LIENS............................................... 10
ARTICLE 11 PROJECT SERVICES.................................... 10
(a) Basic Services...................................... 10
(b) Excess Usage........................................ 11
(c) Additional Electrical Service....................... 11
(d) HVAC Balance........................................ 11
(e) Telecommunications.................................. 11
(f) After-hours Use..................................... 11
(g) Reasonable Charges.................................. 11
(h) Sole Electrical Representative...................... 12
(i) Abatement Event..................................... 12
(j) Card Key Access..................................... 12
ARTICLE 12 RIGHTS OF LANDLORD.................................. 12
(a) Right of Entity..................................... 12
(b) Maintenance Work.................................... 13
(c) Rooftop............................................. 13
ARTICLE 13 INDEMNITY; EXEMPTION OF LANDLORD FROM LIABILITY..... 13
(a) Indemnity........................................... 13
(b) Exemption of Landlord from Liability................ 14
(c) Security............................................ 14
ARTICLE 14 INSURANCE........................................... 14
(a) Tenant's Insurance.................................. 14
(b) Form of Policies.................................... 15
(c) Landlord's Insurance................................ 15
(d) Waiver of Subrogation............................... 15
(e) Compliance with Law................................. 16
ARTICLE 15 ASSIGNMENT AND SUBLETTING........................... 16
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TABLE OF CONTENTS
(continued)
PAGE
ARTICLE 16 DAMAGE OR DESTRUCTION............................... 18
ARTICLE 17 SUBORDINATION....................................... 19
ARTICLE 18 EMINENT DOMAIN...................................... 20
ARTICLE 19 DEFAULT............................................. 20
(a) Tenant's Default.................................... 20
(b) Landlord's Default.................................. 21
ARTICLE 20 REMEDIES............................................ 21
ARTICLE 21 TRANSFER OF LANDLORD'S INTEREST..................... 22
ARTICLE 22 BROKER.............................................. 23
ARTICLE 23 PARKING............................................. 23
ARTICLE 24 WAIVER.............................................. 23
ARTICLE 25 ESTOPPEL CERTIFICATE................................ 24
ARTICLE 26 LIABILITY OF LANDLORD............................... 24
ARTICLE 27 INABILITY TO PERFORM................................ 25
ARTICLE 28 HAZARDOUS WASTE..................................... 25
ARTICLE 29 SURRENDER OF PREMISES; REMOVAL OF PROPERTY.......... 26
ARTICLE 30 MISCELLANEOUS....................................... 27
(a) SEVERABILITY; ENTIRE AGREEMENT...................... 27
(b) Attorneys' Fees Waiver of Jury Trial................ 28
(c) Time of Essence..................................... 28
(d) Pleadings; Joint and Several........................ 28
(e) Reserved Area....................................... 28
(f) NO OPTION........................................... 28
(g) Use of Project Name; Improvements................... 28
(h) Rules and Regulations............................... 28
(i) Quiet Possession.................................... 29
(j) Rent................................................ 29
(k) Successors and Assigns.............................. 29
(l) Notices............................................. 29
(m) Intentionally Omitted............................... 29
(n) Right of Landlord to Perform........................ 29
(o) Access, Changes in Protect Facilities, Name......... 29
(p) Signing Authority................................... 30
(q) Identification of Tenant............................ 30
(r) Intentionally Omitted............................... 31
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INDEX
PAGE(S)
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Abatement Event................................................... 10
Abatement Notice.................................................. 10
ADA............................................................... 4
Additional Rent................................................... 2
Alterations....................................................... 8
Base Year......................................................... 1
Basic Rental...................................................... l
Brokers........................................................... l
Claims............................................................ 11
Commencement Date................................................. l
Cosmetic Alterations.............................................. 8
Damage Repair Estimate............................................ 16
Direct Costs...................................................... 2
Eligibility Period................................................ 11
Estimate ......................................................... 5
Estimate Statement................................................ 5
Estimated Excess.................................................. 5
Event of Default.................................................. 18
Excess............................................................ 5
Expiration Date................................................... 1
Force Majeure..................................................... 21
Hazardous Material................................................ 22
Initial Installment of Basic Rental............................... l
Landlord.......................................................... l
Landlord Parties.................................................. 11
Laws.............................................................. 23
Lease............................................................. 1
Parking Passes.................................................... 1
Permitted Use..................................................... 1
Premises.......................................................... 1
Project........................................................... 1
Real Property..................................................... 2
Security Deposit.................................................. 1
Square Footage.................................................... 1
Statement......................................................... 5
Tenant............................................................ 1
Tenant Improvements............................................... 7
Tenant's Proportionate Share...................................... 1
Tenant's Signage.................................................. 27
Term.............................................................. l
Transfer Premium.................................................. 15
Transferee........................................................ 15
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STANDARD OFFICE LEASE
This Standard Office Lease ("LEASE") is made and entered into as of
this 30th day of September, 2003, by and between ARDEN REALTY FINANCE V, L.L.C.,
a Delaware limited liability company ("LANDLORD"), and LINDOWS.COM, INC., a
Delaware corporation dba Delaware Lindows.com, Inc. ("TENANT").
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
the premises described as Suite Nos. 250 and 300, as designated on the plan
attached hereto and incorporated herein as Exhibit "A" ("PREMISES"), of the
project ("PROJECT") now known as Genesee Executive Plaza whose address is 9333
Genesee Avenue, San Diego, California for the Term and upon the terms and
conditions hereinafter set forth, and Landlord and Tenant hereby agree as
follows:
ARTICLE 1
BASIC LEASE PROVISIONS
A. TERM: [***]
COMMENCEMENT DATE: [***]
EXPIRATION DATE: [***]
B. SQUARE FOOTAGE: [***]
C. BASIC RENTAL: [***]
D. BASE YEAR: [***]
E. TENANT'S PROPORTIONATE SHARE: [***]
F. SECURITY DEPOSIT: [***]
G. PERMITTED USE: General office use.
H. BROKERS The Irving Hughes Group, Inc. for
Tenant.
Tenant shall rent eighty-two (82)
I. PARKING PASSES: unreserved parking passes at the rate
provided in Article 23 hereof.
J. INITIAL INSTALLMENT OF BASIC RENTAL: Not applicable.
ARTICLE 2
TERM/PREMISES
The Term of this Lease shall commence on the Commencement Date as set
forth in Article 1.A of the Basic Lease Provisions and shall end on the
Expiration Date set forth in Article 1.A of the Basic Lease Provisions. For
purposes of this Lease, the term "LEASE YEAR" shall mean each consecutive twelve
(12) month period during the Term, with the first Lease Year commencing on the
Commencement Date; however, (a) if the Commencement Date falls on a day other
than the first day of a calendar month, the first Lease Year shall end on the
last day of the eleventh (11th) month after the Commencement Date and the second
(2nd) and each succeeding Lease Year shall commence on the first day of the next
calendar month, and (b) the
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last Lease Year shall end on the Expiration Date. If Landlord is unable to
deliver possession of the Premises to Tenant on or before the anticipated
Commencement Date, Landlord shall not be subject to any liability for its
failure to do so, and such failure shall not affect the validity of this Lease
nor the obligations of Tenant hereunder. Landlord and Tenant hereby stipulate
that the Premises contains the number of square feet specified in Article I.B of
the Basic Lease Provisions, except that the rentable and usable square feet of
the Premises and the Project are subject to verification from time to time by
Landlord's architect/space planner. In the event that Landlord's architect/space
planner determines that the amounts thereof shall be different from those set
forth in this Lease, all amounts, percentages and figures appearing or referred
to in this Lease based upon such incorrect amount (including, without
limitation, the amount of the Basic Rental and Tenant's Proportionate Share)
shall be modified in accordance with such determination. If such determination
is made, it will be confirmed in writing by Landlord to Tenant. Landlord may
deliver to Tenant a Commencement Letter in a form substantially similar to that
attached hereto as Exhibit "C", which Tenant shall execute and return to
Landlord within five (5) days of receipt thereof. Failure of Tenant to timely
execute and deliver the Commencement Letter shall constitute acknowledgment by
Tenant that the statements included in such notice are true and correct, without
exception.
ARTICLE 3
RENTAL
(a) Basic Rental. Tenant agrees to pay to Landlord during the Term
hereof, at Landlord's office or to such other person or at such other place as
directed from time to time by written notice to Tenant from Landlord, the
initial monthly and annual sums as set forth in Article 1.C of the Basic Lease
Provisions, payable in advance on the first day of each calendar month, without
demand, setoff or deduction, except as otherwise expressly provided in this
Lease and in the event this Lease commences or the date of expiration of this
Lease occurs other than on the first day or last day of a calendar month, the
rent for such month shall be prorated.
(b) Increase in Direct Costs. The term "BASE YEAR" means the
calendar year set forth in Article I.D of the Basic Lease Provisions. If, in any
calendar year during the Term of this Lease, the "Direct Costs" (as hereinafter
defined) paid or incurred by Landlord shall be higher than the Direct Costs for
the Base Year, Tenant shall pay an additional sum for each such subsequent
calendar year equal to the product of the amount set forth in Article I.E of the
Basic Lease Provisions multiplied by such increased amount of Direct Costs. In
the event either the Premises and/or the Project is expanded or reduced, then
Tenant's Proportionate Share shall be appropriately adjusted, and as to the
calendar year in which such change occurs, Tenant's Proportionate Share for such
calendar year shall be determined on the basis of the number of days during that
particular calendar year that such Tenant's Proportionate Share was in effect.
In the event this Lease shall terminate on any date other than the last day of a
calendar year, the additional sum payable hereunder by Tenant during the
calendar year in which this Lease terminates shall be prorated on the basis of
the relationship which the number of days which have elapsed from the
commencement of said calendar year to and including said date on which this
Lease terminates bears to three hundred sixty-five (365). Any and all amounts
due and payable by Tenant pursuant to this Lease (other than Basic Rental) shall
be deemed "ADDITIONAL RENT" and Landlord shall be entitled to exercise the same
rights and remedies upon default in these payments as Landlord is entitled to
exercise with respect to defaults in monthly Basic Rental payments.
(c) Definitions. As used herein the term "DIRECT COSTS" shall mean
the sum of the following:
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(i) "TAX COSTS", which shall mean any and all real estate
taxes and other similar charges on real property or improvements, assessments,
water and sewer charges, and all other charges assessed, reassessed or levied
upon the Project and appurtenances thereto and the parking or other facilities
thereof, or the real property thereunder (collectively the "REAL PROPERTY") or
attributable thereto or on the rents, issues, profits or income received or
derived therefrom which are assessed, reassessed or levied by the United States,
the State of California or any local government authority or agency or any
political subdivision thereof, and shall include Landlord's reasonable legal
fees, costs and disbursements incurred in connection with proceedings for
reduction of Tax Costs or any part thereof; provided, however, if at any time
after the date of this Lease the methods of taxation now prevailing shall be
altered so that in lieu of or as a supplement to or a substitute for the whole
or any part of any Tax Costs, there shall be assessed, reassessed or levied (a)
a tax, assessment, reassessment, levy, imposition or charge wholly or partially
on the rents, or (b) a tax, assessment, reassessment, levy (including but not
limited to any municipal, state or federal levy), imposition or charge measured
by or based in whole or in part upon the Real Property and imposed upon
Landlord, then except to the extent such items are payable by Tenant under
Article 6 below, such taxes, assessments, reassessments or levies or the part
thereof so measured or based, shall be deemed to be included in the term "Direct
Costs." In no event shall Tax Costs included in Direct Costs for any year
subsequent to the Base Year be less than the amount of Tax Costs included in
Direct Costs for the Base Year. In addition, when calculating Tax Costs for the
Base Year, special assessments shall only be deemed included in Tax Costs for
the Base Year to the extent that such special assessments are included in Tax
Costs for the applicable subsequent calendar year during the Term.
Notwithstanding anything to the contrary contained in this Section 3(c)(i),
there shall be excluded from Tax Costs (i) all 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
attributable to operations at the Project), (ii) any items included as Operating
Costs, and (iii) any items paid by Tenant under Article 6 of this Lease.
(ii) "OPERATING COSTS", which shall mean all costs and
expenses incurred by Landlord in connection with the maintenance, operation,
replacement, ownership and repair of the Project, the equipment, the
intrabuilding cabling and wiring, adjacent walks, malls and landscaped and
common areas and the parking structure, areas and facilities of the Project,
including, but not limited to, salaries, wages, medical, surgical and general
welfare benefits and pension payments, payroll fixes, fringe benefits,
employment taxes, workers' compensation, uniforms and dry cleaning thereof for
all persons who perform duties connected with the operation, maintenance and
repair of the Project, its equipment, the intrabuilding cabling and wiring and
the adjacent walks and landscaped areas, including janitorial, gardening,
security, parking, operating engineer, elevator, painting, plumbing, electrical,
carpentry, heating, ventilation, air conditioning, window washing, hired
services, a reasonable allowance for depreciation of the cost of acquiring or
the rental expense of personal property used in the maintenance, operation and
repair of the Project, accountant's fees incurred in the preparation of rent
adjustment statements, legal fees, real estate tax consulting fees, personal
property taxes on property used in the maintenance and operation of the Project,
fees, costs, expenses or dues payable pursuant to the terms of any covenants,
conditions or restrictions or owners' association pertaining to the Project,
capital expenditures incurred to effect economies of operation of, or stability
of services to, the Project and capital expenditures required by government
regulations, laws, or ordinances not in effect as of the Commencement Date; the
cost of all charges for electricity, gas, water and other utilities furnished to
the Project, including any taxes thereon; the cost of all charges for fire and
extended coverage, liability and all other insurance in connection with the
Project carried by Landlord; the cost of all building and cleaning supplies and
materials; the cost of all charges for cleaning, maintenance and service
contracts and other services with independent contractors and administration
fees; a property management fee (which fee may be
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imputed if Landlord has internalized management or otherwise acts as its own
property manager) and license, permit and inspection fees relating to the
Project. In the event, during any calendar year, the Project is less than
ninety-five percent (95%) occupied at all times, Operating Costs shall be
adjusted to reflect the Operating Costs of the Project as though ninety-five
percent (95%) were occupied at all times, and the increase or decrease in the
sums owed hereunder shall be based upon such Operating Costs as so adjusted. In
no event shall costs for any item of utilities included in Direct Costs for any
year subsequent to the Base Year be less than the amount included in Direct
Costs for the Base Year for such utility item. Notwithstanding anything to the
contrary set forth in this Article 3. when calculating Operating Costs for the
Base Year, Operating Costs shall exclude (a) market-wide labor-rate increases
due to extraordinary circumstances including, but not limited to, boycotts and
strikes, (b) utility rate increases due to extraordinary circumstances
including, but not limited to, conservation surcharges, boycotts, embargoes or
other shortages, and (c) amortization of any capital items including, but not
limited to, capital improvements, capital repairs and capital replacements
(including such amortized costs where the actual improvement, repair or
replacement was made in prior years).
Notwithstanding anything above to the contrary, Operating Costs shall
not include (1) the cost of providing any service directly to and paid directly
by any tenant (outside of such tenant's Direct Cost payments) including, without
limitation, the cost of electricity, to a tenant's premises; (2) the cost of any
items for which Landlord is reimbursed by insurance proceeds, condemnation
awards, a tenant of the Project, or otherwise to the extent so reimbursed; (3)
any real estate brokerage commissions or other costs incurred in procuring
tenants, or any fee in lieu of commission; (4) depreciation, amortization of
principal and interest on mortgages or ground lease payments (if any); (5) costs
of items considered capital repairs, replacements, improvements and equipment
under generally accepted accounting principles consistently applied except as
expressly included in Operating Costs pursuant to the definition above; (6)
costs incurred by Landlord due to the violation by Landlord or any tenant of the
terms and conditions of any lease of space in the Project or any law, code,
regulation, ordinance or the like; (7) Landlord's general corporate overhead and
general and administrative expenses; (8) any compensation paid to clerks,
attendants or other persons in commercial concessions operated by Landlord
(other than in the parking facility for the Project); (9) costs incurred in
connection with upgrading the Project to comply with disability, life, seismic,
fire and safety codes, ordinances, statutes, or other laws in effect prior to
the Commencement Date, including, without limitation, the Americans with
Disabilities Act ("ADA"), including penalties or damages incurred due to such
non-compliance; (10) bad debt expenses and interest, principal, points and fees
on debts (except in connection with the financing of items which may be included
in Operating Costs) or amortization on any ground lease, mortgage or mortgages
or any other debt instrument encumbering the Project (including the land on
which the Project is situated); (11) marketing costs, including leasing
commissions, attorneys' fees in connection with the negotiation and preparation
of letters, deal memos, letters of intent, leases, subleases and/or assignments,
space planning costs, and other costs and expenses incurred in connection with
lease, sublease and/or assignment negotiations and transactions with present or
prospective tenants or other occupants of the Project, including attorneys' fees
and other costs and expenditures incurred in connection with disputes with
present or prospective tenants or other occupants of the Project; (12) real
estate brokers' leasing commissions; (13) costs, including permit, license and
inspection costs, incurred with respect to the installation of other tenants' or
occupants' improvements made for tenants or other occupants in the Project or
incurred in renovating or otherwise improving, decorating, painting or
redecorating vacant space for tenants or other occupants in the Project; (14)
any costs expressly excluded from Operating Costs elsewhere in this Lease; (15)
costs of any items (including, but not limited to, costs incurred by Landlord
for the repair of damage to the Project) to the extent Landlord receives
reimbursement from insurance proceeds or from a third party (except that any
deductible amount under any insurance policy shall be included within Operating
Costs); (16) rentals and other related expenses for leasing an HVAC system,
elevators, or other items (except when needed in
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connection with normal repairs and maintenance of the Project) which if
purchased, rather than rented, would constitute a capital improvement not
included in Operating Costs pursuant to this Lease; (17) depreciation,
amortization and interest payments, except as specifically included in Operating
Costs pursuant to the terms of this Lease and except on materials, tools,
supplies and vendor-type equipment purchased by Landlord to enable Landlord to
supply services Landlord might otherwise contract for with a third party, where
such depreciation, amortization and interest payments would otherwise have been
included in the charge for such third party's services, all as determined in
accordance with generally accepted accounting principles, consistently applied,
and when depreciation or amortization is permitted or required, the item shall
be amortized over its reasonably anticipated useful life; (18) costs incurred by
Landlord for alterations (including structural additions), repairs, equipment
and tools which are of a capital nature and/or which are considered capital
improvements or replacements under generally accepted accounting principles,
consistently applied, except as specifically included in Operating Costs
pursuant to the terms of this Lease; (19) expenses in connection with services
or other benefits which are not offered to Tenant or for which Tenant is charged
for directly but which are provided to another tenant or occupant of the
Project, without charge; (20) electric power costs or other utility costs for
which any tenant directly contracts with the local public service company (but
Landlord shall have the right to "gross up" as if such space was vacant); (21)
costs incurred in connection with the operation of retail stores selling
merchandise and restaurants in the Project to the extent such costs are in
excess of the costs Landlord reasonably estimates would have been incurred had
such space been used for general office use; (22) costs (including in connection
therewith all attorneys' fees and costs of settlement, judgments and/or payments
in lieu thereof) arising from claims, disputes or potential disputes in
connection with potential or actual claims litigation or arbitrations pertaining
to Landlord and/or the Project, other than such claims or disputes respecting
any services or equipment used in the operation of the Project by Landlord-,
(23) costs associated with the operation of the business of the partnership
which constitutes Landlord as the same are distinguished from the costs of
operation of the Project; (24) costs incurred in connection with the original
construction of the Project; (25) costs of correcting defects in or inadequacy
of the initial design or construction of the Project; and (26) costs incurred to
(1) comply with laws relating to the removal of any "Hazardous Material," as
that term is defined in Article 28 of this Lease, which was in existence on the
Project prior to the Commencement Date, and was of such a nature that a federal,
state or municipal governmental authority, if it had then had knowledge of the
presence of such Hazardous Material, in the state, and under the conditions that
it then existed on the Project, would have then required the removal of such
Hazardous Material or other remedial or containment action with respect thereto,
and (ii) to remove, remedy, contain, or treat any Hazardous Material, which
Hazardous Material is brought onto the Project after the date hereof by Landlord
or any other tenant of the Project and is of such a nature, at that time, that a
federal, state or municipal governmental authority, if it had then had knowledge
of the presence of such Hazardous Material, in the state, and under the
conditions, that it then exists on the Project, would have then required the
removal of such Hazardous Material or other remedial or containment action with
respect thereto.
(d) Determination of Payment.
(i) If for any calendar year ending or commencing within
the Term, Tenant's Proportionate Share of Direct Costs for such calendar year
exceeds Tenant's Proportionate Share of Direct Costs for the Base Year, then
Tenant shall pay to Landlord, in the manner set forth in Sections 3(d)(ii) and
(iii), below, and as Additional Rent, an amount equal to the excess (the
"EXCESS").
(ii) Landlord shall give Tenant a yearly expense estimate
statement (the "ESTIMATE STATEMENT") which shall set forth Landlord's reasonable
estimate (the "ESTIMATE") of what the total amount of Direct Costs for the
then-current calendar year shall be and the estimated
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Excess (the `ESTIMATED EXCESS") as calculated by comparing Tenant's
Proportionate Share of Direct Costs for such calendar year, which shall be based
upon the Estimate, to Tenant's Proportionate Share of Direct Costs for the Base
Year. The failure of Landlord to timely furnish the Estimate Statement for any
calendar year shall not preclude Landlord from subsequently enforcing its rights
to collect any Estimated Excess under this Article 3, once such Estimated Excess
has been determined by Landlord. If pursuant to the Estimate Statement an
Estimated Excess is calculated for the then-current calendar year, Tenant shall
pay, with its next installment of monthly Basic Rental due, a fraction of the
Estimated Excess for the then-current calendar year (reduced by any amounts paid
pursuant to the last sentence of this Section 3(d)(ii)). Such fraction shall
have as its numerator the number of months which have elapsed in such current
calendar year to the month of such payment, both months inclusive, and shall
have twelve (12) as its denominator. Until a new Estimate Statement is
furnished, Tenant shall pay monthly, with the monthly Basic Rental installments,
an amount equal to one-twelfth (1/12) of the total Estimated Excess set forth in
the previous Estimate Statement delivered by Landlord to Tenant.
(iii) In addition, Landlord shall endeavor to give to
Tenant as soon as reasonably practicable following the end of each calendar
year, a statement (the "STATEMENT") which shall state the Direct Costs incurred
or accrued for such preceding calendar year, and which shall indicate the
amount, if any, of the Excess. Upon receipt of the Statement for each calendar
year during the Term, if amounts paid by Tenant as Estimated Excess are less
than the actual Excess as specified on the Statement, Tenant shall pay, with its
next installment of monthly Basic Rental due, the full amount of the Excess for
such calendar year, less the amounts, if any, paid during such calendar year as
Estimated Excess. If, however, the Statement indicates that amounts paid by
Tenant as Estimated Excess are greater than the actual Excess as specified on
the Statement, such overpayment shall be credited against Tenant's next
installments of Estimated Excess. The failure of Landlord to timely furnish the
Statement for any calendar year shall not prejudice Landlord from enforcing its
rights under this Article 3, once such Statement has been delivered. Even though
the Term has expired and Tenant has vacated the Premises, when the final
determination is made of Tenant's Proportionate Share of the Direct Costs for
the calendar year in which this Lease terminates, if an Excess is present,
Tenant shall immediately pay to Landlord an amount as calculated pursuant to the
provisions of this Article 3(d). The provisions of this Section 3(d)(iii) shall
survive the expiration or earlier termination of the Term.
(iv) If the Project is a part of a multi-building
development those Direct Costs attributable to such development as a whole (and
not attributable solely to any individual building therein) shall be allocated
by Landlord to the Project and to the other buildings within such development on
an equitable basis.
ARTICLE 4
INTENTIONALLY OMITTED
ARTICLE 5
HOLDING OVER
Should Tenant, without Landlord's written consent, hold over after
termination of this Lease, Tenant shall become a tenant at sufferance upon each
and all of the terms herein provided as may be applicable to such a tenancy and
any such holding over shall not constitute an extension of this Lease. During
such holding over, Tenant shall pay in advance, monthly, Basic Rental at a rate
equal to [***] of the rate in effect for the last month of the Term of this
Lease, in addition to, and not in lieu of, all other payments required to be
made by Tenant hereunder including but not limited to Tenant's Proportionate
Share of any increase in Direct Costs.
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Nothing contained in this Article 5 shall be construed as consent by Landlord to
any holding over of the Premises by Tenant, and Landlord expressly reserves the
right to require Tenant to surrender possession of the Premises to Landlord as
provided in this Lease upon the expiration or earlier termination of the Term.
If Landlord provides Tenant with at least thirty (30) days prior written notice
that Landlord has a signed proposal or lease from a succeeding tenant to lease
the Premises, and if Tenant fails to surrender the Premises upon the later of
(i) the date of expiration of such thirty (30) day period, or (ii) the date of
expiration or termination of this Lease, Tenant agrees to indemnify, defend and
hold Landlord harmless from all costs, loss, expense or liability, including
without limitation, claims made by any succeeding tenant and real estate brokers
claims and attorney's fees and costs.
ARTICLE 6
OTHER TAXES
Tenant shall pay, prior to delinquency, all taxes assessed against or
levied upon trade fixtures, furnishings, equipment and all other personal
property of Tenant located in the Premises. In the event any or all of Tenant's
trade fixtures, furnishings, equipment and other personal property shall be
assessed and taxed with property of Landlord, or if the cost or value of any
leasehold improvements in the Premises exceeds the cost or value of a
Project-standard buildout as determined by Landlord and, as a result, real
property taxes for the Project are increased, Tenant shall pay to Landlord,
within ten (10) days after delivery to Tenant by Landlord of a written statement
setting forth such amount the amount of such taxes applicable to Tenant's
property or above-standard improvements. Tenant shall assume and pay to Landlord
at the time Basic Rental next becomes due (or if assessed after the expiration
of the Term, then within ten (10) days), any excise, sales, use, rent,
occupancy, garage, parking, gross receipts or other taxes (other than net income
taxes) which may be imposed on or on account of the letting of the Premises or
the payment of Basic Rental or any other sums due or payable hereunder, and
which Landlord may be required to pay or collect under any law now in effect or
hereafter enacted. Tenant shall pay directly to the party or entity entitled
thereto all business license fees, gross receipts taxes and similar taxes and
impositions which may from time to time be assessed against or levied upon
Tenant, as and when the same become due and before delinquency. Notwithstanding
anything to the contrary contained herein, any sums payable by Tenant under this
Article 6 shall not be included in the computation of "Tax Costs."
ARTICLE 7
USE
Tenant shall use and occupy the Premises only for the use set forth in
Article 1.G of the Basic Lease Provisions and shall not use or occupy the
Premises or permit the same to be used or occupied for any other purpose without
the prior written consent of Landlord, which consent may be given or withheld in
Landlord's sole and absolute discretion, and Tenant agrees that it will use the
Premises in such a manner so as not to interfere with or infringe upon the
rights of other tenants or occupants in the Project. Tenant shall, at its sole
cost and expense, promptly comply with all laws, statutes, ordinances,
governmental regulations or requirements now in force or which may hereafter be
in force relating to or affecting (i) the condition, use or occupancy of the
Premises or the Project (excluding structural changes to the Project not related
to Tenant's particular use of the Premises), and (ii) improvements installed or
constructed in the Premises by-or for the benefit of Tenant. Tenant shall not
permit more than six (6) people per one thousand (1,000) rentable square feet of
the Premises to occupy the Premises at any time. Tenant shall not do or permit
to be done anything which would invalidate or increase the cost of any fire and
extended coverage insurance policy covering the Project and/or the property
located therein and
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Tenant shall comply with all rules, orders, regulations and requirements of any
organization which sets out standards, requirements or recommendations commonly
referred to by major fire insurance underwriters, and Tenant shall promptly upon
demand reimburse Landlord for any additional premium charges for any such
insurance policy assessed or increased by reason of Tenant's failure to comply
with the provisions of this Article. Landlord represents that Landlord has taken
or shall take the necessary steps to comply with what Landlord reasonably
believes are the requirements of the ADA in effect as of the date of this Lease
as it pertains to the common areas within the Project. Operating Costs shall not
include any cost incurred by Landlord in connection with upgrading the Project
to comply with the requirements of the ADA that are in effect as of the date of
this Lease, including penalties or damages incurred due to such noncompliance.
ARTICLE 8
CONDITION OF PREMISES
Tenant hereby agrees that the Premises shall be taken "as is", "with
all faults", "without any representations or warranties", and Tenant hereby
agrees and warrants that it has investigated and inspected the condition of the
Premises and the suitability of same for Tenant's purposes, and Tenant does
hereby waive and disclaim any objection to, cause of action based upon, or claim
that its obligations hereunder should be reduced or limited because of the
condition of the Premises or the Project or the suitability of same for Tenant's
purposes. Tenant acknowledges that neither Landlord nor any agent nor any
employee of Landlord has made any representations or warranty with respect to
the Premises or the Project or with respect to the suitability of either for the
conduct of Tenant's business and Tenant expressly warrants and represents that
Tenant has relied solely on its own investigation and inspection of the Premises
and the Project in its decision to enter into this Lease and let the Premises in
the above-described condition. The existing leasehold improvements in the
Premises as of the date of this Lease may be collectively referred to herein as
the "TENANT IMPROVEMENTS". The taking of possession of the Premises by Tenant
shall conclusively establish that the Premises and the Project were at such time
in satisfactory condition. Tenant hereby waives subsection 1 of Section 1932 and
Sections 1941 and 1942 of the Civil Code of California or any successor
provision of law.
ARTICLE 9
REPAIRS AND ALTERATIONS
(a) Landlord's Obligation. Landlord shall maintain the structural
portions of the Project including the foundation, floor/ceiling slabs, roof,
curtain wall, exterior glass, columns, beams, shafts, stairs, stairwells,
elevator cabs and common areas, and shall also maintain and repair the basic
mechanical, electrical, life safety, plumbing, sprinkler systems and heating,
ventilating and air-conditioning systems.
(b) Tenant's Obligation. Except as expressly provided as
Landlord's obligation in this Article 9, Tenant shall keep the Premises in good
condition and repair. All damage or injury to the Premises or the Project
resulting from the act or negligence of Tenant, its employees, agents or
visitors, guests, invitees or licensees, or by the use of the Premises, shall be
promptly repaired by Tenant at its sole cost and expense, to the satisfaction of
Landlord; provided, however, that for damage to the Project as a result of
casualty or for any repairs that may impact the mechanical, electrical,
plumbing, heating, ventilation or air-conditioning systems of the Project,
Landlord shall have the right (but not the obligation) to select the contractor
and oversee all such repairs. Landlord may make any repairs which are not
promptly made by Tenant after Tenant's receipt of written notice and the
reasonable opportunity of Tenant to make said repair
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within five (5) business days from receipt of said written notice, and charge
Tenant for the cost thereof, which cost shall be paid by Tenant within five (5)
days from invoice from Landlord. Tenant shall be responsible for the design and
function of all non-standard improvements of the Premises, whether or not
installed by Landlord at Tenant's request. Tenant waives all rights to make
repairs at the expense of Landlord, or to deduct the cost thereof from the rent.
(c) Alterations. Tenant shall make no alterations, installations,
changes or additions in or to the Premises or the Project (collectively,
"ALTERATIONS") without Landlord's prior written consent. Any Alterations
approved by Landlord must be performed in accordance with the terms hereof,
using only contractors or mechanics approved by Landlord in writing and upon the
approval by Landlord in writing of fully detailed and dimensioned plans and
specifications pertaining to the Alterations in question, to be prepared and
submitted by Tenant at its sole cost and expense. Tenant shall at its sole cost
and expense obtain all necessary approvals and permits pertaining to any
Alterations. Tenant shall cause all Alterations to be performed in a good and
workmanlike manner, in conformance with all applicable federal, state, county
and municipal laws, rules and regulations, pursuant to a valid building permit,
and in conformance with Landlord's construction rules and regulations. If
Landlord, in approving any Alterations, specifies a commencement date therefor,
Tenant shall not commence any work with respect to such Alterations prior to
such date. Notwithstanding anything to the contrary contained herein, Tenant may
make strictly cosmetic changes to the finish work in the Premises (the "COSMETIC
ALTERATIONS") without Landlord's consent, provided that the aggregate cost of
any such alterations does not exceed [***], and further provided that such
alterations do not (i) require any structural or other substantial modifications
to the Premises, (ii) require any changes to, nor adversely affect, the systems
and equipment of the Project, and (iii) affect the exterior appearance of the
Project. Tenant shall give Landlord at least fifteen (15) days prior notice of
such Cosmetic Alterations, which notice shall be accompanied by reasonably
adequate evidence that such changes meet the criteria contained in this Article
9. Tenant hereby agrees to indemnify, defend, and hold Landlord free and
harmless from all liens and claims of lien, and all other liability, claims and
demands arising out of any work done or material supplied to the Premises by or
at the request of Tenant in connection with any Alterations.
(d) Insurance: Liens. Prior to the commencement of any
Alterations, Tenant shall provide Landlord with evidence that Tenant carries
"Builder's All Risk" insurance in an amount approved by Landlord covering the
construction of such Alterations, and such other insurance as Landlord may
reasonably require, it being understood that all such Alterations shall be
insured by Tenant pursuant to Article 14 of this Lease immediately upon
completion thereof. In addition, Landlord may, in its discretion, require Tenant
to obtain a lien and completion bond or some alternate form of security
satisfactory to Landlord in an amount sufficient to ensure the lien free
completion of such Alterations and naming Landlord as a co-obligee.
(e) Costs and Fees; Removal. If permitted Alterations are made,
they shall be made at Tenant's sole cost and expense and shall be and become the
property of Landlord, except that Landlord may, by written notice to Tenant
given prior to the end of the Term, require Tenant at Tenant's expense to remove
all partitions, counters, railings, cabling and other Alterations installed by
Tenant, and to repair any damage to the Premises and the Project caused by such
removal. Any and all costs attributable to or related to the applicable building
codes of the city in which the Project is located (or any other authority having
jurisdiction over the Project) arising from Tenant's plans, specifications,
improvements, Alterations or otherwise shall be paid by Tenant at its sole cost
and expense. With regard to repairs, Alterations or any other work arising from
or related to this Article 9, Landlord shall be entitled to receive an
administrative/coordination fee (which fee shall vary depending upon whether or
not Tenant orders the work directly from Landlord) sufficient to compensate
Landlord for all overhead,
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general conditions, fees and other costs and expenses arising from Landlord's
involvement with such work.
ARTICLE 10
LIENS
Tenant shall keep the Premises and the Project free from any mechanics' liens,
vendors liens or any other liens arising out of any work performed, materials
furnished or obligations incurred by Tenant, and Tenant agrees to defend,
indemnify and hold Landlord harmless from and against any such lien or claim or
action thereon, together with costs of suit and reasonable attorneys' fees
incurred by Landlord in connection with any such claim or action. Before
commencing any work of alteration, addition or improvement to the Premises,
Tenant shall give Landlord at least ten (10) business days' written notice of
the proposed commencement of such work (to afford Landlord an opportunity to
post appropriate notices of non-responsibility). In the event that there shall
be recorded against the Premises or the Project or the property of which the
Premises is a part any claim or lien arising out of any such work performed,
materials furnished or obligations incurred by Tenant and such claim or lien
shall not be removed or discharged within ten (10) days of filing, Landlord
shall have the right but not the obligation to pay and discharge said lien
without regard to whether such lien shall be lawful or correct or to require
that Tenant promptly deposit with Landlord in cash, lawful money of the United
States, [***] of the amount of such claim, which sum may be retained by Landlord
until such claim shall have been removed of record or until judgment shall have
been rendered on such claim and such judgment shall have become final, at which
time Landlord shall have the right to apply such deposit in discharge of the
judgment on said claim and any costs, including attorneys' fees and costs
incurred by Landlord, and shall remit the balance thereof to Tenant.
ARTICLE 11
PROJECT SERVICES
(a) Basic Services. Landlord agrees to furnish to the Premises, at
a cost to be included in Operating Costs, from 8:00 a.m. to 6:00 p.m. Mondays
through Fridays and 9:00 a.m. to 1:00 p.m. on Saturdays, excepting local and
national holidays, air conditioning and heat all in such reasonable quantities
as in the judgment of Landlord is reasonably necessary for the comfortable
occupancy of the Premises. In addition, Landlord shall provide electric current
for normal lighting and normal office machines, elevator service and water on
the same floor as the Premises for lavatory and drinking purposes in such
reasonable quantities as in the judgment of Landlord is reasonably necessary for
general office use and in compliance with applicable codes. Janitorial and
maintenance services shall be furnished five (5) days per week, excepting local
and national holidays. Tenant shall comply with all rules and regulations which
Landlord may establish for the proper functioning and protection of the common
area air conditioning, heating, elevator, electrical intrabuilding cabling and
wiring and plumbing systems. Except as provided in Section 11(i) below, Landlord
shall not be liable for, and there shall be no rent abatement as a result of,
any stoppage, reduction or interruption of any such services caused by
governmental rules, regulations or ordinances, riot, strike, labor disputes,
breakdowns, accidents, necessary repairs or other cause. Except as specifically
provided in this Article 11, Tenant agrees to pay for all utilities and other
services utilized by Tenant and any additional building services furnished to
Tenant which are not uniformly furnished to all tenants of the Project, at the
rate generally charged by Landlord to tenants of the Project for such utilities
or services.
(b) Excess Usage. Tenant will not, without the prior written
consent of Landlord, use any apparatus or device in the Premises which will in
any way increase the amount of
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electricity or water usually furnished or supplied for use of the Premises as
general office space; nor connect any apparatus, machine or device with water
pipes or electric current (except through existing electrical outlets in the
Premises), for the purpose of using electric current or water.
(c) Additional Electrical Service. If Tenant shall require
electric current in excess of that which Landlord is obligated to furnish under
Article 11(a) above, Tenant shall first obtain the written consent of Landlord,
which Landlord may refuse in its sole and absolute discretion.
(d) HVAC Balance. If any lights, machines or equipment (including
but not limited to computers and computer systems and appurtenances) are used by
Tenant in the Premises which materially affect the temperature otherwise
maintained by the air conditioning system, or generate substantially more heat
in the Premises than would be generated by the building standard lights and
usual office equipment, Landlord shall have the right to install any machinery
and equipment which Landlord reasonably deems necessary to restore temperature
balance, including but not limited to modifications to the 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 by Landlord.
(e) Telecommunications. Upon request from Tenant from time to
time, Landlord will provide Tenant with a listing of telecommunications and
media service providers serving the Project, and Tenant shall have the right to
contract directly with the providers of its choice. If Tenant wishes to contract
with or obtain service from any provider which does not currently serve the
Project or wishes to obtain from an existing carrier services which will require
the installation of additional equipment, such provider must, prior to providing
service, enter into a written agreement with Landlord setting forth the terms
and conditions of the access to be granted to such provider. In considering the
installation of any new or additional telecommunications cabling or equipment at
the Project, Landlord will consider all relevant factors in a reasonable and
non-discriminatory manner, including, without limitation, the existing
availability of services at the Project, the impact of the proposed
installations upon the Project and its operations and the available space and
capacity for the proposed installations. Landlord may also consider whether the
proposed service may result in interference with or interruption of other
services at the Project or the business operations of other tenants or occupants
of the Project. In no event shall Landlord be obligated to incur any costs or
liabilities in connection with the installation or delivery of telecommunication
services or facilities at the Project. All such installations shall be subject
to Landlord's prior approval and shall be performed in accordance with the terms
of Article 9. If Landlord approves the proposed installations in accordance with
the foregoing, Landlord will deliver its standard form agreement upon request
and will use commercially reasonable efforts to promptly enter into an agreement
on reasonable and non-discriminatory terms with a qualified, licensed and
reputable carrier confirming the terms of installation and operation of
telecommunications equipment consistent with the foregoing.
(f) After-hours Use. If Tenant requires heating, ventilation
and/or air conditioning during times other than the times provided in Article 11
(a) above, Tenant shall pay Landlord's standard charge for such after-hours use,
which rate is currently [***]
(g) Reasonable Charges. Landlord -ray impose a reasonable charge
for any utilities or services (other than electric current and heating,
ventilation and/or air conditioning which shall be governed by Articles 11(a)
and (d) above) utilized by Tenant in excess of the amount or type that Landlord
reasonably determines is typical for general office use.
(h) Sole Electrical Representative. Tenant agrees that Landlord
shall be the sole and exclusive representative with respect to, and shall
maintain exclusive control over, the reception, utilization and distribution of
electrical power, regardless of point or means of origin, use or
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generation. Tenant shall not have the right to contract directly with any
provider of electrical power or services.
(i) Abatement Event. An "ABATEMENT EVENT" shall be defined as an
event that prevents Tenant from using the Premises or any portion thereof, as a
result of any failure to provide services or access to the Premises, where (i)
Tenant does not actually use the Premises or such portion thereof, and (ii) such
event is not caused by the negligence or willful misconduct of Tenant, its
agents, employees or contractors. Tenant shall give Landlord notice ("Abatement
Notice") of any such Abatement Event, and if such Abatement Event continues
beyond the "Eligibility Period" (as that term is defined below), then the Basic
Rental and Tenant's Proportionate Share of Direct Costs and Tenant's obligation
to pay for parking shall be abated entirely or reduced, as the case may be,
after expiration of the Eligibility Period for such time that Tenant continues
to be so prevented from using, and does not use, the Premises or a portion
thereof, in the proportion that the rentable area of the portion of the Premises
that Tenant is prevented from using, and does not use, bears to the total
rentable area of the Premises; provided, however, in the event that Tenant is
prevented from using, and does not use, a portion of the Premises for a period
of time in excess of the Eligibility Period and the remaining portion of the
Premises is not sufficient to allow Tenant to effectively conduct its business
therein, and if Tenant does not conduct its business from such remaining
portion, then for such time after expiration of the Eligibility Period during
which Tenant is so prevented from effectively conducting its business therein,
the Basic Rental and Tenant's Proportionate Share of Direct Costs and Tenant's
obligation to pay for parking for the entire Premises shall be abated entirely
for such time as Tenant continues to be so prevented from using, and does not
use, the Premises. If, however, Tenant reoccupies any portion of the Premises
during such period, the Basic Rental and Tenant's Proportionate Share of Direct
Costs allocable to such reoccupied portion, based on the proportion that the
rentable area of such reoccupied portion of the Premises bears to the total
rentable area of the Premises, shall be payable by Tenant from the date Tenant
reoccupies such portion of the Premises. The term "ELIGIBILITY PERIOD" shall
mean a period of five (5) consecutive business days after Landlord's receipt of
any Abatement Notice(s).
(j) Card Key Access. In the event the Project currently has, or
Landlord later elects to install, a card key access system, Tenant agrees to pay
$10.00 for the replacement of lost, damaged, or misplaced card keys.
ARTICLE 12
RIGHTS OF LANDLORD
(a) Right of Entity. Landlord and its agents shall have the right
to enter the Premises at all reasonable times for the purpose of cleaning the
Premises, examining or inspecting the same, serving or posting and keeping
posted thereon notices as provided by law, or which Landlord deems necessary for
the protection of Landlord or the Project, showing the same to prospective
tenants, lenders or purchasers of the Project, in the case of an emergency, and
for making such alterations, repairs, improvements or additions to the Premises
or to the Project as Landlord may deem necessary or desirable. If Tenant shall
not be personally present to open and permit an entry into the Premises at any
time when such an entry by Landlord is necessary or permitted hereunder,
Landlord may enter by means of a master key, or may forcibly enter, in the case
of an emergency, in each event without liability to Tenant and without affecting
this Lease.
(b) Maintenance Work. Landlord reserves the right from time to
time, but subject to payment by and/or reimbursement from Tenant as otherwise
provided herein: (i) to install, use, maintain, repair, replace, relocate and
control for service to the Premises and/or other parts of the Project pipes,
ducts, conduits, wires, cabling, appurtenant fixtures, equipment spaces and
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mechanical systems, wherever located in the Premises or the Project, (ii) to
alter, close or relocate any facility in the Premises or the common areas or
otherwise conduct any of the above activities for the purpose of complying with
a general plan for fire/life safety for the Project or otherwise, and (iii) to
comply with any federal, state or local law, rule or order. Landlord shall
attempt to perform any such work with the least inconvenience to Tenant as is
reasonably practicable, but in no event shall Tenant be permitted to withhold or
reduce Basic Rental or other charges due hereunder as a result of same, make any
claim for constructive eviction or otherwise make any claim against Landlord for
interruption or interference with Tenant's business and/or operations.
(c) Rooftop. If Tenant desires to use the rooftop of the Project
for any purpose, including the installation of communication equipment to be
used from the Premises, such rights will be granted in Landlord's sole
discretion and Tenant must negotiate the terms of any rooftop access with
Landlord or the rooftop management company or lessee holding rights to the
rooftop from time to time. Any rooftop access granted to Tenant will be at
prevailing rates and will be governed by the terms of a separate written
agreement or an amendment to this Lease.
ARTICLE 13
INDEMNITY; EXEMPTION OF LANDLORD FROM LIABILITY
(a) Indemnity. Tenant shall indemnify, defend and hold Landlord,
Arden Realty, Inc., Arden Realty Limited Partnership, their subsidiaries,
partners, affiliates and their respective officers, directors, employees and
contractors (collectively, "LANDLORD PARTIES") harmless from any and all claims
arising from Tenant's use of the Premises or the Projector from the conduct of
its business or from any activity, work or thing which may be permitted or
suffered by Tenant in or about the Premises or the Project and shall further
indemnify, defend and hold Landlord and the Landlord Parties harmless from and
against any and all claims arising from any breach or default in the performance
of any obligation on Tenant's part to be performed under this Lease or arising
from any negligence or willful misconduct of Tenant or any of its agents,
contractors, employees or invitees, patrons, customers or members in or about
the Project and from any and all costs, attorneys' fees and costs, expenses and
liabilities incurred in the defense of any claim or any action or proceeding
brought thereon, including negotiations in connection therewith. However,
notwithstanding the foregoing, Tenant shall not be required to indemnify and/or
hold Landlord harmless from any loss, cost, liability, damage or expense,
including, but not limited to, penalties, fines, attorneys' fees or costs
(collectively, "CLAIMS"), to any person, property or entity to the extent
resulting from the negligence or willful misconduct of Landlord or its agents,
contractors, or employees (except for damage to the Tenant Improvements and
Tenant's personal property, fixtures, furniture and equipment in the Premises in
which case Tenant shall be responsible to the extent Tenant is required to
obtain the requisite insurance coverage pursuant to this Lease). Landlord hereby
indemnifies Tenant and holds Tenant harmless from any Claims to the extent
resulting from the negligence or willful misconduct of Landlord or its agents,
contractors or employees; provided, however, that because Landlord maintains
insurance on the Project and Tenant compensates Landlord for such insurance as
part of Tenant's Proportionate Share of Direct Costs and because of the
existence of waivers of subrogation set forth in Article 14 of this Lease,
Landlord hereby indemnifies and holds Tenant harmless from any Claims to any
property outside of the Premises to the extent such Claim is covered by such
insurance, even if resulting from the negligent acts, omissions, or willful
misconduct of Tenant or those of its agents, contractors, or employees.
Similarly, since Tenant must carry insurance pursuant to Article 14 to cover its
personal property within the Premises and the Tenant Improvements, Tenant hereby
indemnifies and holds Landlord harmless from any Claim to any property within
the Premises, to the extent such Claim is covered by such insurance, even if
resulting from the negligent acts, omissions or willful misconduct of Landlord
or those of its agents, contractors, or employees. Tenant hereby assumes all
risk of damage to property or injury to persons in or about
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the Premises from any cause, and Tenant hereby waives all claims in respect
thereof against Landlord and the Landlord Parties, excepting where the damage is
caused solely by the gross negligence or willful misconduct of Landlord or of
Landlord Parties.
(b) Exemption of Landlord from Liability. Landlord and the
Landlord Parties shall not be liable for injury to Tenant's business, or loss of
income therefrom, however occurring (including, without limitation, from any
failure or interruption of services or utilities) or, except in connection with
damage or injury resulting from the gross negligence or willful misconduct of
Landlord or the Landlord Parties, for damage that may be sustained by the
person, goods, wares, merchandise or property of Tenant, its employees,
invitees, customers, agents, or contractors, or any other person in, on or about
the Premises directly or indirectly caused by or resulting from any cause
whatsoever, including, but not limited to, fire, steam, electricity, gas, water,
or rain which may leak or flow from or into any part of the Premises, or from
the breakage, leakage, obstruction or other defects of the pipes, sprinklers,
wires, appliances, plumbing, air conditioning, light fixtures, or mechanical or
electrical systems or from intrabuilding cabling or wiring, whether such damage
or injury results from conditions arising upon the Premises or upon other
portions of the Project or four other sources or places and regardless of
whether the cause of such damage or injury or the means of repairing the same is
inaccessible to Tenant. Landlord and the Landlord Parties shall not be liable to
Tenant for any damages arising from any willful or negligent action or inaction
of any other tenant of the Project.
(c) Security. Tenant acknowledges that Landlord's election whether
or not to provide any type of mechanical surveillance or security personnel
whatsoever in the Project is solely within Landlord's discretion. Except in the
event Landlord or the Landlord Parties are grossly negligent, Landlord and the
Landlord Parties shall not be liable for losses due to theft, vandalism, or like
causes.
ARTICLE 14
INSURANCE
(a) Tenant's Insurance. Tenant, shall at all times during the Term
of this Lease, and at its own cost and expense, procure and continue in force
the following insurance coverage: (i) Commercial General Liability Insurance,
written on an occurrence basis, with a combined single limit for bodily injury
and property damages of not less than [***] per occurrence and [***] in the
annual aggregate, including products liability coverage if applicable, owners
and contractors protective coverage, blanket contractual coverage including both
oral and written contracts, and personal injury coverage, covering the insuring
provisions of this Lease and the performance of Tenant of the indemnity and
exemption of Landlord from liability agreements set forth in Article 13 hereof;
(ii) a policy of standard fire, extended coverage and special extended coverage
insurance (all risks), including a vandalism and malicious mischief endorsement,
sprinkler leakage coverage and earthquake sprinkler leakage where sprinklers are
provided in an amount equal to the full replacement value new without deduction
for depreciation of all (A) Tenant Improvements, Alterations, fixtures and other
improvements in the Premises, including but not limited to all mechanical,
plumbing, heating, ventilating, air conditioning, electrical, telecommunication
and other equipment, systems and facilities, and (B) trade fixtures, furniture,
equipment and other personal property installed by or at the expense of Tenant;
(iii) Worker's Compensation coverage as required by law; and (iv) business
interruption, loss of income and extra expense insurance covering any failure or
interruption of Tenant's business equipment (including, without limitation,
telecommunications equipment) and covering all other perils, failures or
interruptions sufficient to cover a period of interruption of not less than
twelve (12) months. Tenant shall carry and maintain during the entire Term
(including any option periods, if applicable), at Tenant's sole cost and
expense, increased amounts of the insurance required to be
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carried by Tenant pursuant to this Article 14 and such other reasonable types of
insurance coverage and in such reasonable amounts covering the Premises and
Tenant's operations therein, as may be reasonably required by Landlord, so long
as such increased amounts and/or other types of insurance coverage are then
generally required by comparable landlords of comparable first-class,
institutional quality buildings in the vicinity of the Project.
(b) Form of Policies. The aforementioned minimum limits of
policies and Tenant's procurement and maintenance thereof shall in no event
limit the liability of Tenant hereunder. The Commercial General Liability
Insurance policy shall name Landlord, the Landlord Parties, Landlord's property
manager, Landlord's lender(s) and such other persons or firms as Landlord
specifies from time to time, as additional insureds with an appropriate
endorsement to the policy(s). All such insurance policies carried by Tenant
shall be with companies having a rating of not less than A-VIII in Best's
Insurance Guide. Tenant shall furnish to Landlord, from the insurance companies,
or cause the insurance companies to furnish, certificates of coverage. No such
policy shall be cancelable or subject to reduction of coverage or cancellation
except after thirty (30) days prior written notice to Landlord by the insurer.
All such policies shall be endorsed to agree that Tenant's policy is primary as
to Claims arising within the Premises and that any insurance carried by Landlord
is excess and not contributing with any Tenant insurance requirement hereunder.
Tenant shall, at least twenty (20) days prior to the expiration of such
policies, furnish Landlord with renewals or binders. Tenant agrees that if
Tenant does not take out and maintain such insurance or furnish Landlord with
renewals or binders in a timely manner, Landlord may (but shall not be required
to), upon prior notice to Tenant and the expiration of a five (5) day cure
period, procure said insurance on Tenant's behalf and charge Tenant the cost
thereof, which amount shall be payable by Tenant upon demand with interest (at
the rate set forth in Section 20(e) below) from the date such sums are extended.
Tenant shall have the right to provide such insurance coverage pursuant to
blanket policies obtained by Tenant, provided such blanket policies expressly
afford coverage to the Premises and to Tenant as required by this Lease.
(c) Landlord's Insurance. Landlord may, as a cost to be included
in Operating Costs, procure and maintain at all times during the Term of this
Lease, a policy or policies of insurance covering loss or damage to the Project
in the amount of the full replacement costs without deduction for depreciation
thereof, providing protection against all perils included within the
classification of fire and extended coverage, vandalism coverage and malicious
mischief, sprinkler leakage, water damage, and special extended coverage on
building. Additionally, Landlord may carry: (i) Bodily Injury and Property
Damage Liability Insurance and/or Excess Liability Coverage Insurance; and (ii)
Earthquake and/or Flood Damage Insurance; and (iii) Rental Income Insurance; and
(iv) any other forms of insurance Landlord may deem appropriate or any lender
may require. The costs of all insurance carried by Landlord shall be included in
Operating Costs.
(d) Waiver of Subrogation. Landlord and Tenant each agree to
require their respective insurers issuing the insurance described in Sections
14(a)(ii), 14(a)(iv) and the first sentence of Section 14(c), waive any rights
of subrogation that such companies may have against the other party. Tenant
hereby waives any right that Tenant may have against Landlord and Landlord
hereby waives any right that Landlord may have against Tenant as a result of any
loss or damage to the extent such loss or damage is insurable under such
policies.
(e) Compliance with Law. Tenant agrees that it will not, at any
time, during the Term of this Lease, carry any stock of goods or do anything in
or about the Premises that will in any way tend to increase the insurance rates
upon the Project. Tenant agrees to pay Landlord forthwith upon demand the amount
of any increase in premiums for insurance that may be carried during the Term of
this Lease, on the amount of insurance to be carried by Landlord on the
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Project resulting from the foregoing, or from Tenant doing any act in or about
the Premises that does so increase the insurance rates, whether or not Landlord
shall have consented to such act on the part of Tenant. If Tenant installs upon
the Premises any electrical equipment which causes an overload of electrical
lines of the Premises, Tenant shall at its own cost and expense in accordance
with all other Lease provisions(specifically including, but not limited to, the
provisions of Article 9, 10 and 11 hereof), make whatever changes are necessary
to comply with requirements-of the insurance underwriters and any governmental
authority having jurisdiction thereover; but nothing herein contained shall be
deemed to constitute Landlord's consent to such overloading. Tenant shall, at
its own expense, comply with all insurance requirements applicable to the
Premises, including without limitation, the installation of fire extinguishers
or an automatic dry chemical extinguishing system.
ARTICLE 15
ASSIGNMENT AND SUBLETTING
Tenant shall have no power to, either voluntarily, involuntarily, by
operation of law or otherwise, sell, assign, transfer or hypothecate this Lease,
or sublet the Premises or any part thereof, or permit the Premises or any part
thereof to be used or occupied by anyone other than Tenant or Tenant's employees
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld. Tenant may transfer its interest pursuant to this Lease
only upon the following express conditions, which conditions are agreed by
Landlord and Tenant to be reasonable:
(a) That the proposed "Transferee" (as hereafter defined) shall be
subject to the prior written consent of Landlord, which consent will not be
unreasonably withheld but, without limiting the generality of the foregoing, it
shall be reasonable for Landlord to deny such consent if
(i) The use to be made of the Premises by the proposed
Transferee is (a) not generally consistent with the character and nature of all
other tenancies in the Project, or (b) a use which conflicts with any so-called
"exclusive" then in favor of, or for any use which might reasonably be expected
to diminish the rent payable pursuant to any percentage rent lease with another
tenant of the Project or any other buildings which are in the same complex as
the Project, or (c) a use which would be prohibited by any other portion of this
Lease (including but not limited to any Rules and Regulations then in effect);
(ii) The financial responsibility of the proposed
Transferee is not reasonably satisfactory to Landlord;
(iii) The proposed Transferee is either a governmental
agency or instrumentality thereof;
(iv) Either the proposed Transferee or any person or
entity which directly or indirectly controls, is controlled by or is under
common control with the proposed Transferee (A) occupies space in the Project at
the time of the request for consent and Landlord has space in the Project
available for lease to such party of comparable size as the proposed space to be
assigned or sublet, or (B) is negotiating with Landlord to lease space in the
Project; or
(v) The rent charged by Tenant to such Transferee during
the term of such Transfer, calculated using a present value analysis, is less
than the rent being quoted by Landlord at the time of such Transfer for
comparable space in the Project for a comparable term, calculated using a
present value analysis.
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(b) Upon Tenant's submission of a request for Landlord's consent
to any such Transfer, Tenant shall pay to Landlord Landlord's then standard
processing fee and reasonable attorneys' fees and costs incurred in connection
with the proposed Transfer, which the parties hereby stipulate to be [***],
unless Landlord provides to Tenant evidence that Landlord has incurred greater
costs in connection with the proposed Transfer;
(c) That the proposed Transferee shall execute an agreement
pursuant to which it shall agree to perform faithfully and be bound by all of
the terms, covenants, conditions, provisions and agreements of this Lease
applicable to that portion of the Premises so transferred; and
(d) That an executed duplicate original of said assignment and
assumption agreement or other transfer on a form reasonably approved by
Landlord, shall be delivered to Landlord within five (5) days after the
execution thereof, and that such transfer shall not be binding upon Landlord
until the delivery thereof to Landlord and the execution and delivery of
Landlord's consent thereto. It shall be a condition to Landlord's consent to any
subleasing, assignment or other transfer of part or all of Tenant's interest in
the Premises ("TRANSFER") that (i) upon Landlord's consent to any Transfer,
Tenant shall pay and continue to pay [***] of any "Transfer Premium" (defined
below), received by Tenant from the transferee; (ii) any sublessee of part or
all of Tenant's interest in the Premises shall agree that in the event Landlord
gives such sublessee notice that Tenant is in default under this Lease, such
sublessee shall thereafter make all sublease or other payments directly to
Landlord, which will be received by Landlord without any liability whether to
honor the sublease or otherwise (except to credit such payments against sums due
under this Lease), and any sublessee shall agree to attorn to Landlord or its
successors and assigns at their request should this Lease be terminated for any
reason, except that in no event shall Landlord or its successors or assigns be
obligated to accept such attornment; (iii) any such Transfer and consent shall
be effected on forms supplied by Landlord and/or its legal counsel; (iv)
Landlord may require that Tenant not then be in default hereunder in any
respect; and (v) Tenant or the proposed subtenant or assignee (collectively,
"TRANSFEREE") shall agree to pay Landlord, upon demand, as Additional Rent, a
sum equal to the additional costs, if any, incurred by Landlord for maintenance
and repair as a result of any change in the nature of occupancy caused by such
subletting or assignment. "TRANSFER PREMIUM" shall mean all rent, Additional
Rent or other consideration payable by a Transferee in connection with a
Transfer in excess of the Basic Rental and Direct Costs payable by Tenant under
this Lease during the term of the Transfer and if such Transfer is for less than
all of the Premises, the Transfer Premium shall be calculated on a rentable
square foot basis. In any event, the Transfer Premium shall be calculated after
deducting the reasonable expenses incurred by Tenant for (1) any changes,
alterations and improvements to the Premises paid for by Tenant in connection
with the Transfer, (2) any other out-of-pocket monetary concessions provided by
Tenant to the Transferee, and (3) any brokerage commissions paid for by Tenant
in connection with the Transfer. "Transfer Premium" shall also include, but not
be limited to, key money, bonus money or other cash consideration paid by a
Transferee to Tenant in connection with such Transfer, and any payment in excess
of fair market value for services rendered by Tenant to the Transferee and any
payment in excess of fair market value for assets, fixtures, inventory,
equipment, or furniture transferred by Tenant to the Transferee in connection
with such Transfer. Any Transfer of this Lease which is not in compliance with
the provisions of this Article 15 shall be voidable by written notice from
Landlord and shall, at the option of Landlord, terminate this Lease. In no event
shall the consent by Landlord to any Transfer be construed as relieving Tenant,
or any Transferee from obtaining the express written consent of Landlord to any
further Transfer, or as releasing Tenant from any liability or obligation
hereunder whether or not then accrued and Tenant shall continue to be fully
liable therefor. No collection or acceptance of rent by Landlord from any person
other than Tenant shall be deemed a waiver of any provision of this Article 15
or the acceptance of any Transferee hereunder, or a release of Tenant (or of any
Transferee of Tenant). Notwithstanding
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anything to the contrary in this Lease, if Tenant or any proposed Transferee
claims that Landlord has unreasonably withheld or delayed its consent under this
Article 15 or otherwise has breached or acted unreasonably under this Article
15, their sole remedies shall be a declaratory judgment, an injunction for the
relief sought and/or monetary damages, and Tenant hereby waives all other
remedies, including, without limitation, any right at law or equity to terminate
this Lease.
Notwithstanding anything to the contrary contained in this Article 15,
Landlord shall have the option, by giving written notice to Tenant within thirty
(30) days after Landlord's receipt of a request for consent to a proposed
Transfer, to terminate this Lease as to the portion of the Premises that is the
subject of the proposed Transfer. If this Lease is so terminated with respect to
less than the entire Premises, the Basic Rental and Tenant's Proportionate Share
shall be prorated based on the number of rentable square feet retained by Tenant
as compared to the total number of rentable square feet previously contained in
the Premises, and this Lease as so amended shall continue thereafter in full
force and effect, and upon the request of either party, the parties shall
execute written confirmation of the same.
ARTICLE 16
DAMAGE OR DESTRUCTION
Within sixty (60) days after the date Landlord learns of the necessity
for repairs as a result of damage, Landlord shall notify Tenant ("DAMAGE REPAIR
ESTIMATE") of Landlord's estimated assessment of the period of time in which the
repairs will be completed. If the Project is damaged by fire or other insured
casualty and the insurance proceeds have been made available therefor by the
holder or holders of any mortgages or deeds of trust covering the Premises or
the Project, the damage shall be repaired by Landlord to the extent such
insurance proceeds are available therefor and provided the Damage Repair
Estimate indicates that repairs can be completed within one hundred eighty (180)
days after the necessity for repairs as a result of such damage becomes known to
Landlord, without the payment of overtime or other premiums, and until such
repairs are completed rent shall be abated in proportion to the part of the
Premises which is unusable by Tenant in the conduct of its business (but there
shall be no abatement of rent by reason of any portion of the Premises being
unusable for a period equal to one (1) day or less). However, if the damage is
due to the fault or neglect of Tenant, its employees, agents, contractors,
guests, invitees and the like, there shall be no abatement of rent, unless and
to the extent Landlord receives rental income insurance proceeds. Upon the
occurrence of any damage to the Premises, Tenant shall assign to Landlord (or to
any party designated by Landlord) all insurance proceeds payable to Tenant under
Section 14(a)(ii)(A) above; provided, however, that if the cost of repair of
improvements within the Premises by Landlord exceeds the amount of insurance
proceeds received by Landlord from Tenant's insurance carrier, as so assigned by
Tenant, such excess costs shall be paid by Tenant to Landlord prior to
Landlord's repair of such damage. If, however, the Damage Repair Estimate
indicates that repairs cannot be completed within one hundred eighty (180) days
after the necessity for repairs as a result of such damage becomes known to
Landlord without the payment of overtime or other premiums, Landlord may, at its
option, either (i) make such repairs in a reasonable time and in such event this
Lease shall continue in effect and the rent shall be abated, if at all, in the
manner provided in this Article 16, or (ii) elect not to effect such repairs and
instead terminate this Lease, by notifying Tenant in writing of such termination
within sixty (60) days after Landlord learns of the necessity for repairs as a
result of damage, such notice to include a termination date giving Tenant sixty
(60) days to vacate the Premises. In addition, Landlord may elect to terminate
this Lease if the Project shall be damaged by fire or other casualty or cause,
whether or not the Premises are affected, if the damage is not fully covered,
except for deductible amounts, by Landlord's insurance policies. However, if
Landlord does not elect to terminate this Lease pursuant to Landlord's
termination right as provided above, and the Damage Repair Estimate indicates
that repairs cannot be
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completed within one hundred eighty (180) days after being commenced, Tenant may
elect, not later than thirty (30) days after Tenant's receipt of the Damage
Repair Estimate, to terminate this Lease by written notice to Landlord effective
as of the date specified in Tenant's notice. Finally, if the Premises or the
Project is damaged to any substantial extent during the last twelve (12) months
of the Term, then notwithstanding anything contained in this Article 16 to the
contrary, Landlord shall have the option to terminate this Lease by giving
written notice to Tenant of the exercise of such option within sixty (60) days
after Landlord learns of the necessity for repairs as the result of such damage.
In the event that the Premises or the Project is destroyed or damaged to any
substantial extent during the last twelve (12) months of the Term and if the
Damage Repair Estimate indicates that such damage shall take longer than sixty
(60) days to repair and if such damage is not the result of the negligence or
willful misconduct of Tenant or Tenant's employees, licensees, invitees or
agents, then notwithstanding anything in this Article 16 to the contrary, Tenant
shall have the option to terminate this Lease by written notice to Landlord of
the exercise of such option within sixty (60) days after Tenant learns of the
necessity for repairs as the result of such damage. A total destruction of the
Project shall automatically terminate this Lease. Except as provided in this
Article 16, there shall be no abatement of rent and no liability of Landlord by
reason of any injury to or interference with Tenant's business or property
arising from such damage or destruction or the making of any repairs,
alterations or improvements in or to any portion of the Project or the Premises
or in or to fixtures, appurtenances and equipment therein. Tenant understands
that Landlord will not carry insurance of any kind on Tenant's furniture,
furnishings, trade fixtures or equipment, and that Landlord shall not be
obligated to repair any damage thereto or replace the same. Tenant acknowledges
that Tenant shall have no right to any proceeds of insurance carried by Landlord
relating to property damage. With respect to any damage which Landlord is
obligated to repair or elects to repair, Tenant, as a material inducement to
Landlord entering into this Lease, irrevocably waives and releases its rights
under the provisions of Sections 1932 and 1933 of the California Civil Code.
ARTICLE 17
SUBORDINATION
This Lease is subject and subordinate to all ground or underlying
leases, mortgages and deeds of trust which affect the property or the Project,
including all renewals, modifications, consolidations, replacements and
extensions thereof; provided, however, if the lessor under any such lease or the
holder or holders of any such mortgage or deed of trust shall advise Landlord
that they desire or require this Lease to be prior and superior thereto, upon
written request of Landlord to Tenant, Tenant agrees to promptly execute,
acknowledge and deliver any and all documents or instruments which Landlord or
such lessor, holder or holders deem necessary or desirable for purposes thereof.
Landlord shall have the right to cause this Lease to be and become and remain
subject and subordinate to any and all ground or underlying leases, mortgages or
deeds of trust which may hereafter be executed covering the Premises, the
Project or the property or any renewals, modifications, consolidations,
replacements or extensions thereof, for the full amount of all advances made or
to be made thereunder and without regard to the time or character of such
advances, together with interest thereon and subject to all the terms and
provisions thereof; provided, however, that a condition precedent to such
subordination shall be that Landlord obtains from the lender or other party in
question a commercially reasonable non-disturbance agreement in favor of Tenant.
Subject to the foregoing, Tenant agrees, within ten (10) business days after
Landlord's written request therefor, to execute, acknowledge and deliver upon
request any and all documents or instruments requested by Landlord or necessary
or proper to assure the subordination of this Lease to any such mortgages, deed
of trust, or leasehold estates. Tenant agrees that in the event any proceedings
are brought for the foreclosure of any mortgage or deed of trust or any deed in
lieu thereof, to attorn to the purchaser or any successors thereto upon any such
foreclosure sale or deed in lieu thereof as so requested to do so by such
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purchaser and to recognize such purchaser as the lessor under this Lease; Tenant
shall, within ten (10) days after request execute such further instruments or
assurances as such purchaser may reasonably deem necessary to evidence or
confirm such attornment. Tenant agrees to provide copies of any notices of
Landlord's default under this Lease to any mortgagee or deed of trust
beneficiary whose address has been provided to Tenant and Tenant shall provide
such mortgagee or deed of trust beneficiary a commercially reasonable time after
receipt of such notice within which to cure any such default. Tenant waives the
provisions of any current or future statute, rule or law which may give or
purport to give Tenant any right or election to terminate or otherwise adversely
affect this Lease and the obligations of the Tenant hereunder in the event of
any foreclosure proceeding or sale.
ARTICLE 18
EMINENT DOMAIN
If the whole of the Premises or the Project or so much thereof as to
render the balance unusable by Tenant shall be taken under power of eminent
domain, or is sold, transferred or conveyed in lieu thereof, this Lease shall
automatically terminate as of the date of such condemnation, or as of the date
possession is taken by the condemning authority, at Landlord's option. No award
for any partial or entire taking shall be apportioned, and Tenant hereby assigns
to Landlord any award which may be made in such taking or condemnation, together
with any and all rights of Tenant now or hereafter arising in or to the same or
any part thereof; provided, however, that 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 and trade
fixtures belonging to Tenant and removable by Tenant at the expiration of the
Term hereof as provided hereunder or for the interruption of, or damage to,
Tenant's business. In the event of a partial taking described in this Article
18, or a sale, transfer or conveyance in lieu thereof, which does not result in
a termination of this Lease, the rent shall be apportioned according to the
ratio that the part of the Premises remaining useable by Tenant bears to the
total area of the Premises. Tenant hereby waives any and all rights it might
otherwise have pursuant to Section 1265.130 of the California Code of Civil
Procedure.
ARTICLE 19
DEFAULT
(a) Tenant's Default. Each of the following acts or omissions of
Tenant or of any guarantor of Tenant's performance hereunder, or occurrences,
shall constitute an "EVENT OF DEFAULT":
(i) Failure or refusal to pay Basic Rental, Additional
Rent or any other amount to be paid by Tenant to Landlord hereunder within five
(5) calendar days after notice that the same is due or payable hereunder; said
five (5) day period shall be in lieu of, and not in addition to, the notice
requirements of Section 1161 of the California Code of Civil Procedure or any
similar or successor law;
(ii) Except as set forth in items (i) above and (iii)
below, failure to perform or observe any other covenant or condition of this
Lease to be performed or observed within thirty (30) days following written
notice to Tenant of such failure; however, if the nature of such default is such
that the same cannot be reasonably cured within a thirty (30) day period, Tenant
shall not be deemed to be in default if Tenant diligently commences such cure
within such period and thereafter diligently proceeds to rectify and cure said
default. Such thirty (30) day notice
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shall be in lieu of, and not in addition to, any required under Section 1161 of
the California Code of Civil Procedure or any similar or successor law; or
(iii) Tenant's failure to observe or perform according to
the provisions of Articles 7, 17 or 25 within five (5) business days after
notice from Landlord.
(b) Landlord's Default. Notwithstanding anything to the contrary
set forth in this Lease, Landlord shall be in default in the performance of any
obligation required to be performed by Landlord pursuant to this Lease if
Landlord fails to perform such obligation within thirty (30) days after the
receipt of notice from Tenant specifying in detail Landlord's failure to
perform; provided, however, if the nature of Landlord's obligation is such that
more than thirty (30) days are required for its performance, then Landlord shall
not be in default under this Lease if it shall commence such performance within
such thirty (30) day period and thereafter diligently pursue the same to
completion. Upon any such default by Landlord under this Lease, Tenant may,
except as otherwise specifically provided in this Lease to the contrary,
exercise any of its rights provided at law or in equity.
ARTICLE 20
REMEDIES
(a) Upon the occurrence of an Event of Default under this Lease as
provided in Article 19 hereof, Landlord may exercise all of its remedies as may
be permitted by law, including but not limited to the remedy provided by Section
1951.4 of the California Civil Code, and including without limitation,
terminating this Lease, reentering the Premises and removing all persons and
property therefrom, which property may be stored by Landlord at a warehouse or
elsewhere at the risk, expense and for the account of Tenant. If Landlord elects
to terminate this Lease, Landlord shall be entitled to recover from Tenant the
aggregate of all amounts permitted by law, including but not limited to (i) the
worth at the time of award of the amount of any unpaid rent which had been
earned at the time of such termination; plus (ii) the worth at the time of award
of the amount by which the unpaid rent which would have been earned after
termination until the time of award exceeds the amount of such rental loss that
Tenant proves could have been reasonably avoided; plus (iii) 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 rental loss that Tenant
proves could have been reasonably avoided; plus (iv) any other amount necessary
to compensate Landlord for all the detriment proximately caused by Tenant's
failure to perform its obligations under this Lease or which in the ordinary
coarse of things would be likely to result therefrom; and (v) 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. The tern "rent" as used in
this Article 20(a) shall be deemed to be and to mean all sums of every nature
required to be paid by Tenant pursuant to the terms of this Lease, whether to
Landlord or to others. As used in items (i) and (ii), above, the "worth at the
time of award" shall be computed by allowing interest at the rate set forth in
item (e), below, but in no case greater than the maximum amount of such interest
permitted by law. As used in item (iii), above, the "worth at the time of award"
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 one percent (1%).
(b) Nothing in this Article 20 shall be deemed to affect
Landlord's right to indemnification for liability or liabilities arising prior
to the termination of this Lease for personal' injuries or property damage under
the indemnification clause or clauses contained in this Lease.
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(c) Notwithstanding anything to the contrary set forth herein,
Landlord's re-entry to perform acts of maintenance or preservation of or in
connection with efforts to relet the Premises or any portion thereof, or the
appointment of a receiver upon Landlord's initiative to protect Landlord's
interest under this Lease shall not terminate Tenant's right to possession of
the Premises or any portion thereof and, until Landlord does elect to terminate
this Lease, this Lease shall continue in full force and effect and Landlord may
enforce all of Landlord's rights and remedies hereunder including, without
limitation, the remedy described in California Civil Code Section 1951.4 (lessor
may continue lease in effect after lessee's breach and abandonment and recover
rent as it becomes due, if lessee has the right to sublet or assign, subject
only to reasonable limitations). Accordingly, if Landlord does not elect to
terminate this Lease on account of any default by Tenant, Landlord may, from
time to time, without terminating this Lease, enforce all of its rights and
remedies under this Lease, including the right to recover all rent as it becomes
due.
(d) All rights, powers and remedies of Landlord hereunder and
under any other agreement now or hereafter in force between Landlord and Tenant
shall be cumulative and not alternative and shall be in addition to all rights,
powers and remedies given to Landlord by law, and the exercise of one or more
rights or remedies shall not impair Landlord's right to exercise any other right
or remedy.
(e) Any amount due from Tenant to Landlord hereunder which is not
paid when due shall bear interest at the lower of [***] or the maximum lawful
rate of interest from the due date until paid, unless otherwise specifically
provided herein, but the payment of such interest shall not excuse or cure any
default by Tenant under this Lease. In addition to such interest: (i) if Basic
Rental is not paid on or before the fifth (5th) day of the calendar month for
which the same is due, a late charge equal to [***] of the amount overdue shall
be immediately due and owing and shall accrue for each calendar month or part
thereof until such rental, including the late charge, is paid in full, which
late charge Tenant hereby agrees is a reasonable estimate of the damages
Landlord shall suffer as a result of Tenant's late payment and (ii) an
additional charge of [***] shall be assessed for any check given to Landlord by
or on behalf of Tenant which is not honored by the drawee thereof, which damages
include Landlord's additional administrative and other costs associated with
such late payment and unsatisfied checks and the parties agree that it would be
impracticable or extremely difficult to fix Landlord's actual damage in such
event. Such charges for interest and late payments and unsatisfied checks are
separate and cumulative and are in addition to and shall not diminish or
represent a substitute for any or all of Landlord's rights or remedies under any
other provision of this Lease.
ARTICLE 21
TRANSFER OF LANDLORD'S INTEREST
In the event of any transfer or termination of Landlord's interest in
the Premises or the Project by sale, assignment, transfer, foreclosure,
deed-in-lieu of foreclosure or otherwise whether voluntary or involuntary,
Landlord shall be automatically relieved of any and all obligations and
liabilities on the part of Landlord from and after the date of such transfer or
termination. Tenant agrees to attorn to the transferee upon any such transfer
and to recognize such transferee as the lessor under this Lease and Tenant
shall, within five (5) days after request, execute such further instruments or
assurances as such transferee may reasonably deem necessary to evidence or
confirm such attornment.
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ARTICLE 22
BROKER
In connection with this Lease, Tenant warrants and represents that it
has had dealings only with, term(s) set forth in Article 1.H of the Basic Lease
Provisions and that it knows of no other person or entity who is or might be
entitled to a commission, finder's fee or other like payment in connection
herewith and does hereby indemnify and agree to hold Landlord, its agents,
members, partners, representatives, officers, affiliates, shareholders,
employees, successors and assigns harmless from and against any and all loss,
liability and expenses that Landlord may incur should such warranty and
representation prove incorrect, inaccurate or false.
ARTICLE 23
PARKING
Tenant shall rent from Landlord, commencing on the Commencement Date,
the number of unreserved parking passes set forth in Section 1(I) of the Basic
Lease Provisions, which parking passes shall pertain to the Project parking
facility. Tenant shall pay to Landlord for automobile parking passes [***]. In
addition, Tenant shall be responsible for the full amount of any taxes imposed
by any governmental authority in connection with the renting of such parking
passes by Tenant or the use of the parking facility by Tenant. Tenant's
continued right to use the parking passes is conditioned upon Tenant abiding by
all rules and regulations which are prescribed from time to time for the orderly
operation and use of the parking facility where the parking passes are located,
including any sticker or other identification system established by Landlord,
Tenant's cooperation in seeing that Tenant's employees and visitors also comply
with such rules and regulations, and Tenant not being in default under this
Lease. Landlord specifically reserves the right to change the size,
configuration, design, layout and all other aspects of the Project parking
facility at any time and Tenant acknowledges and agrees that Landlord may,
without incurring any liability to Tenant and without any abatement of rent
under this Lease, from time to time, close-off or restrict access to the Project
parking facility for purposes of permitting or facilitating any such
construction, alteration or improvements. Landlord may, from time to time,
relocate any reserved parking spaces (if any) rented by Tenant to another
location in the Project parking facility. Landlord may delegate its
responsibilities hereunder to a parking operator or a lessee of the parking
facility in which case such parking operator or lessee shall have all the rights
of control attributed hereby to the Landlord. The parking passes rented by
Tenant pursuant to this Article 23 are provided to Tenant solely for use by
Tenant's own personnel and such passes may not be transferred, assigned,
subleased or otherwise alienated by Tenant without Landlord's prior approval.
Tenant may validate visitor parking by such method or methods as the Landlord
may establish, at the validation rate from time to time generally applicable to
visitor parking.
ARTICLE 24
WAIVER
No waiver by Landlord or Tenant of any provision of this Lease shall be deemed
to be a waiver of any other provision hereof or of any subsequent breach of the
same or any other provision. No provision of this Lease may be waived by
Landlord or Tenant, except by an instrument in writing executed by the waiving
party. Landlord's consent to or approval of any act by Tenant requiring
Landlord's consent or approval shall not be deemed to render unnecessary the
obtaining of Landlord's consent to or approval of any subsequent act of Tenant,
whether or not similar to the act so consented to or approved. No act or thing
done by Landlord or Landlord's agents during
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the Term of this Lease shall be deemed an acceptance of a surrender of the
Premises, and no agreement to accept such surrender shall be valid unless in
writing and signed by Landlord. 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. Any payment by
Tenant or receipt by Landlord of an amount less than the total amount then due
hereunder shall be deemed to be in partial payment only thereof and not a waiver
of the balance due or an accord and satisfaction, notwithstanding any statement
or endorsement to the contrary on any check or any other instrument delivered
concurrently therewith or in reference thereto. Accordingly, Landlord may accept
any such amount and negotiate any such check without prejudice to Landlord's
right to recover all balances due and owing and to pursue its other rights
against Tenant under this Lease, regardless of whether Landlord makes any
notation on such instrument of payment or otherwise notifies Tenant that such
acceptance or negotiation is without prejudice to Landlord's rights.
ARTICLE 25
ESTOPPEL CERTIFICATE
Tenant shall, at any time and from time to time, upon not less than ten
(10) days' prior written notice from Landlord, execute, acknowledge and deliver
to Landlord a statement in writing certifying the following information, (but
not limited to the following information in the event further information is
requested by Landlord): (i) 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 modified, is in full force and effect); (ii) the dates to
which the rental and other charges are paid in advance, if any; and (iii)
acknowledging that there are not, to Tenant's knowledge, any uncured defaults on
the part of Landlord hereunder, and no events or conditions then in existence
which, with the passage of time or notice or both, would constitute a default on
the part of Landlord hereunder, or specifying such defaults, events or
conditions, if any are claimed. It is expressly understood and agreed that any
such statement may be relied upon by any prospective purchaser or encumbrancer
of all or any portion of the Real Property. Tenant's failure to deliver such
statement within such time shall constitute an admission by Tenant that all
statements contained therein are true and correct.
ARTICLE 26
LIABILITY OF LANDLORD
Notwithstanding anything in this Lease to the contrary, any remedy of
Tenant for the collection of a judgment (or other judicial process) requiring
the payment of money by Landlord in the event of any default by Landlord
hereunder or any claim, cause of action or obligation, contractual, statutory or
otherwise by Tenant against Landlord or the Landlord Parties concerning, arising
out of or relating to any matter relating to this Lease and all of the covenants
and conditions or any obligations, contractual, statutory, or otherwise set
forth herein, shall be limited solely and exclusively to an amount which is
equal to the lesser of (i) the interest of Landlord in and to the Project, and
(ii) the interest Landlord would have in the Project if the Project were
encumbered by third party debt in an amount equal to ninety percent (90%) of the
then current value of the Project. No other property or assets of Landlord or
any Landlord Party shall be subject to levy, execution or other enforcement
procedure for the satisfaction of Tenant's remedies under or with respect to
this Lease, Landlord's obligations to Tenant, whether contractual, statutory or
otherwise, the relationship of Landlord and Tenant hereunder, or Tenant's use or
occupancy of the Premises.
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ARTICLE 27
INABILITY TO PERFORM
This Lease and the obligations of both parties hereunder shall not be
affected or impaired because such party 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 any prevention, delay, stoppage due to strikes, lockouts,
acts of God, a- any other cause previously, or at such time, beyond the
reasonable control or anticipation of such party (collectively, a "FORCE
MAJEURE") and both parties' obligations under this Lease shall be forgiven and
suspended by any such Force Majeure; provided, however, that this Article 27 is
not intended to, and shall not, extend the time period for the payment of any
monetary amounts due (including, without limitation, rent payments from Tenant)
from either party to the other under this Lease nor relieve either party from
their monetary obligations to the other under this Lease.
ARTICLE 28
HAZARDOUS WASTE
(a) Tenant shall not cause or permit any Hazardous Material (as
defined in Article 28(b) below) to be brought, kept or used in or about the
Project by Tenant, its agents, employees, contractors, or invitees. Tenant
indemnifies Landlord and the Landlord Parties from and against any breach by
Tenant of the obligations stated in the preceding sentence, and agrees to defend
and hold Landlord and the Landlord Parties harmless from and against any and all
claims, judgments, damages, penalties, fines, costs, liabilities, or losses
(including, without limitation, diminution in value of the Project, damages for
the loss or restriction or use of rentable or usable space or of any amenity of
the Project, damages arising from any adverse impact or marketing of space in
the Project, and sums paid in settlement of claims, attorneys' fees and costs,
consultant fees, and expert fees) which arise during or after the Term of this
Lease as a result of such breach. This indemnification of Landlord and the
Landlord Parties by Tenant includes, without limitation, costs incurred in
connection with any investigation of site conditions or any cleanup, remedial,
removal, or restoration work required by any federal, state, or local
governmental agency or political subdivision because of Hazardous Material
present in the soil or ground water on or under the Project. Without limiting
the foregoing, if the presence of any Hazardous Material on the Project caused
or permitted by Tenant results in any contamination of the Project, then subject
to the provisions of Articles 9, 10 and 11 hereof, Tenant shall promptly take
all actions at its sole expense as are necessary to return the Project to the
condition existing prior to the introduction of any such Hazardous Material and
the contractors to be used by Tenant for such work must be approved by Landlord,
which approval shall not be unreasonably withheld so long as such actions would
not potentially have any material adverse long-term or short-term effect on the
Project and so long as such actions do not materially interfere with the use and
enjoyment of the Project by the other tenants thereof, provided however,
Landlord shall also have the right, by written notice to Tenant, to directly
undertake any such mitigation efforts with regard to Hazardous Materials in or
about the Project due to Tenant's breach of its obligations pursuant to this
Section 28(a), and to charge Tenant, as Additional Rent, for the costs thereof.
(b) It shall not be unreasonable for Landlord to withhold its
consent to any proposed Transfer if (i) the proposed transferee's anticipated
use of the Premises involves the generation, storage, use, treatment, or
disposal of Hazardous Material; (ii) the proposed Transferee has been required
by any prior landlord, lender, or governmental authority to take remedial action
in connection with Hazardous Material contaminating a property if the
contamination resulted from such Transferee's actions or use of the property in
question; or (iii) the proposed Transferee is
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subject to an enforcement order issued by any governmental authority in
connection with the use, disposal, or storage of a Hazardous Material.
(c) As used herein, the term "HAZARDOUS MATERIAL" means any
hazardous or toxic substance, material, or waste which is or becomes regulated
by any local governmental authority, the State of California or the United
States Government. The term "Hazardous Material" includes, without limitation,
any material or substance which is (i) defined as "Hazardous Waste," "Extremely
Hazardous Waste," or "Restricted Hazardous Waste" under Sections 25115, 25117 or
25122.7, or listed pursuant to Section 25140, of the California Health and
Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii)
defined as a "Hazardous Substance" under Section 25316 of the California Health
and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous
Substance Account Act), (iii) defined as a "Hazardous Material," "Hazardous
Substance," or "Hazardous Waste" under Section 25501 of the California Health
and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response
Plans and Inventory), (iv) defined as a "Hazardous Substance" under Section
25281 of the California Health and Safety Code, Division 20, Chapter 6.7
(Underground Storage of Hazardous Substances), (v) petroleum, (vi) asbestos,
(vii) listed under Article 9 or defined as Hazardous or extremely hazardous
pursuant to Article 11 of Title 22 of the California Administrative Code,
Division 4, Chapter 20, (viii) designated as a "Hazardous Substance" pursuant to
Section 311 of the Federal Water Pollution Control Act (33 U.S.C. Section 1317),
(ix) defined as a "Hazardous Waste" pursuant to Section 1004 of the Federal
Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq. (42
U.S.C. Section 6903), or (x) defined as a "Hazardous Substance" pursuant to
Section 101 of the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. Section 9601 et seq. (42 U.S.C. Section 9601).
(d) As used herein, the term "LAWS" means any applicable federal,
state or local law, ordinance, or regulation relating to any Hazardous Material
affecting the Project, including, without limitation, the laws, ordinances, and
regulations referred to in Article 28(c) above.
ARTICLE 29
SURRENDER OF PREMISES; REMOVAL OF PROPERTY
(a) The voluntary or other surrender of this Lease by Tenant to
Landlord, or a mutual termination hereof, shall not work a merger, and shall at
the option of Landlord, operate as an assignment to it of any or all subleases
or subtenancies affecting the Premises.
(b) Upon the expiration of the Term of this Lease, or upon any
earlier termination of this Lease, Tenant shall quit and surrender possession of
the Premises to Landlord in good order and condition , reasonable wear and tear
and repairs which are Landlord's obligation excepted, and shall, without expense
to Landlord, remove or cause to be removed from the Premises all debris and
rubbish, all furniture, equipment, business and trade fixtures, free-standing
cabinet work, moveable partitioning, telephone and data cabling and other
articles of personal property owned by Tenant or installed or placed by Tenant
at its own expense in the Premises, and all similar articles of any other
persons claiming under Tenant (unless Landlord exercises its option to have any
subleases or subtenancies assigned to it), and Tenant shall repair all damage to
the Premises resulting from the removal of such items from the Premises.
(c) Whenever Landlord shall reenter the Premises as provided in
Article 12 hereof, or as otherwise provided in this Lease, any property of
Tenant not removed by Tenant upon the expiration of the Term of this Lease (or
within forty-eight (48) hours after a termination by reason of Tenant's
default), as provided in this Lease, shall be considered abandoned and Landlord
may remove any or all of such items and dispose of the same in any manner or
store the same in a
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public warehouse or elsewhere for the account and at the expense and risk of
Tenant, and if Tenant shall fail to pay the cost of storing any such property
after it has been stored for a period of thirty (30) days or more, Landlord may
sell any or all of such property at public or private sale, in such manner and
at such times and places as Landlord, in its sole discretion, may deem proper,
without notice to or demand upon Tenant, for the payment of all or any part of
such charges or the removal of any such property, and shall apply the proceeds
of such sale as follows: first, to the cost and expense of such sale, including
reasonable attorneys' fees for services rendered; second, to the payment of the
cost of or charges for storing any such property; third, to the payment of any
other sums of money which may then or thereafter be due to Landlord from Tenant
under any of the terms hereof, and fourth, the balance, if any, to Tenant.
(d) All fixtures, equipment, leasehold improvements, Alterations
and/or appurtenances attached to or built into the Premises prior to or during
the Term, whether by Landlord or Tenant and whether at the expense of Landlord
or Tenant, or of both, shall be and remain part of the Premises and shall not be
removed by Tenant at the end of the Term unless otherwise expressly provided for
in this Lease or unless such removal is required by Landlord. Such fixtures,
equipment, leasehold improvements, Alterations, additions, improvements and/or
appurtenances shall include but not be limited to: all floor coverings, drapes,
paneling, built-in cabinetry, molding, doors, vaults (including vault doors),
plumbing systems, security systems, electrical systems, lighting systems,
silencing equipment, communication systems, all fixtures and outlets for the
systems mentioned above and for all telephone, radio, telegraph and television
purposes, and any special flooring or ceiling installations.
ARTICLE 30
MISCELLANEOUS
(a) SEVERABILITY; ENTIRE AGREEMENT. ANY PROVISION OF THIS LEASE
WHICH SHALL PROVE TO BE INVALID, VOID, OR ILLEGAL SHALL IN NO WAY AFFECT, IMPAIR
OR INVALIDATE ANY OTHER PROVISION HEREOF AND SUCH OTHER PROVISIONS SHALL REMAIN
IN FULL FORCE AND EFFECT. THIS LEASE AND THE EXHIBITS AND ANY ADDENDUM ATTACHED
HERETO CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE PARTIES HERETO WITH REGARD TO
TENANT'S OCCUPANCY OR USE OF ALL OR ANY PORTION OF THE PROJECT, AND NO PRIOR
AGREEMENT OR UNDERSTANDING PERTAINING TO ANY SUCH MATTER SHALL BE EFFECTIVE FOR
ANY PURPOSE. NO PROVISION OF THIS LEASE MAY BE AMENDED OR SUPPLEMENTED EXCEPT BY
AN AGREEMENT IN WRITING SIGNED BY THE PARTIES HERETO OR THEIR SUCCESSOR IN
INTEREST. THE PARTIES AGREE THAT ANY DELETION OF LANGUAGE FROM THIS LEASE PRIOR
TO ITS MUTUAL "EXECUTION BY LANDLORD AND TENANT SHALL NOT BE CONSTRUED TO HAVE
ANY PARTICULAR MEANING OR TO RAISE ANY PRESUMPTION, CANON OF CONSTRUCTION OR
IMPLICATION INCLUDING, WITHOUT LIMITATION, ANY IMPLICATION THAT THE PARTIES
INTENDED THEREBY TO STATE THE CONVERSE, OBVERSE OR OPPOSITE OF THE DELETED
LANGUAGE.
(b) Attorneys' Fees Waiver of Jury Trial.
(i) In any action to enforce the terms 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 a reasonable sum for
attorneys' fees and costs in such suit and such attorneys'
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fees and costs shall be deemed to have accrued prior to the commencement of such
action and shall be paid whether or not such action is prosecuted to judgment.
(ii) EACH PARTY HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY
IN ANY ACTION SEEKING SPECIFIC PERFORMANCE OF ANY PROVISION OF THIS LEASE, FOR
DAMAGES FOR ANY BREACH UNDER THIS LEASE, OR OTHERWISE FOR ENFORCEMENT OF ANY
RIGHT OR REMEDY HEREUNDER.
(c) Time of Essence. Time is of the essence with respect to the
performance of every provision of this Lease.
(d) Pleadings; Joint and Several. The article headings contained
in this Lease are for convenience only and do not in any way limit or amplify
any term or provision hereof. The terms "Landlord" and "Tenant" as used herein
shall include the plural as well as the singular, the neuter shall include the
masculine and feminine genders and the obligations herein imposed upon Tenant
shall be joint and several as to each of the persons, firms or corporations of
which Tenant may be composed.
(e) Reserved Area.. Tenant hereby acknowledges and agrees that the
exterior walls of the Premises and the area between the finished ceiling of the
Premises and the slab of the floor of the project thereabove have not been
demised hereby and the use thereof together with the right to install, maintain,
use, repair and replace pipes, ducts, conduits, wiring and cabling leading
through, under or above the Premises or throughout the Project in locations
which will not materially interfere with Tenant's use of the Premises and
serving other parts of the Project are hereby excepted and reserved unto
Landlord.
(f) NO OPTION. THE SUBMISSION OF THIS LEASE BY LANDLORD, ITS AGENT
OR REPRESENTATIVE FOR EXAMINATION OR EXECUTION BY TENANT DOES NOT CONSTITUTE AN
OPTION OR OFFER TO LEASE THE PREMISES UPON THE TERMS AND CONDITIONS CONTAINED
HEREIN OR A RESERVATION OF THE PREMISES IN FAVOR OF TENANT, IT BEING INTENDED
HEREBY THAT THIS LEASE SHALL ONLY BECOME EFFECTIVE UPON THE EXECUTION HEREOF BY
LANDLORD AND TENANT AND DELIVERY OF A FULLY EXECUTED LEASE TO TENANT.
(g) Use of Project Name; Improvements. Tenant shall not be allowed
to use the name, picture or representation of the Project, or words to that
effect, in connection with any business carried on in the Premises or otherwise
(except as Tenant's address) without the prior written consent of Landlord. In
the event that Landlord undertakes any additional improvements on the Real
Property including but not limited to new construction or renovation or
additions to the existing improvements, Landlord shall not be liable to Tenant
for any noise, dust, vibration or interference with access to the Premises or
disruption in Tenant's business caused thereby.
(h) Rules and Regulations. Tenant shall observe faithfully and
comply strictly with the Rules and Regulations attached to this Lease as Exhibit
"B" and made a part hereof, and such other Rules and Regulations as Landlord may
from time to time reasonably adopt for the safety, care and cleanliness of the
Project, the facilities thereof, or the preservation of good order therein.
Landlord shall not be liable to Tenant for violation of any such Rules and
Regulations, or for the breach of any covenant or condition in any lease by any
other tenant in the Project. A waiver by.-Landlord of any Rule or Regulation for
any other tenant shall not constitute nor be deemed a waiver of the Rule or
Regulation for this Tenant.
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(i) Quiet Possession. Upon Tenant's paying the Basic Rental,
Additional Rent and other sums provided hereunder and observing and performing
all of the covenants, conditions and provisions on Tenant's part to be observed
and performed hereunder, Tenant shall have quiet possession of the Premises for
the entire Term hereof, subject to all of the provisions of this Lease.
(j) Rent. All payments required to be made hereunder to Landlord
shall be deemed to be rent, whether or not described as such.
(k) Successors and Assigns. Subject to the provisions of Article
15 hereof, all of the covenants, conditions and provisions of this Lease shall
be binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, personal representatives, successors and assigns.
(l) Notices. Any notice required or permitted to be given
hereunder shall be in writing and may be given by personal service evidenced by
a signed receipt or sent by registered or certified mail, return receipt
requested, or via overnight courier, and shall be effective upon proof of
delivery, addressed to Tenant at the Premises or to Landlord at the management
office for the Project, with a copy to Landlord, c/o Arden Realty, Inc., 11601
Wilshire Boulevard, Fourth Floor, Los Angeles, California 90025, Attn: Legal
Department. Either party may by notice to the other specify a different address
for notice purposes except that, upon Tenant's taking possession of the
Premises, the Premises shall constitute Tenant's address for notice purposes. A
copy of all notices to be given to Landlord hereunder shall be concurrently
transmitted by Tenant to such party hereafter designated by notice from Landlord
to Tenant. Any notices sent by Landlord regarding or relating to eviction
procedures, including without limitation three day notices, may be sent by
regular mail.
(m) Intentionally Omitted.
(n) Right of Landlord to Perform. All covenants and agreements to
be performed by Tenant under any of the terms of this Lease shall be performed
by Tenant at Tenant's sole cost and expense and without any abatement of rent.
If Tenant shall fail to pay any sum of money, other than rent, required to be
paid by it hereunder or shall fail to perform any other act on its part to be
performed hereunder, and such failure shall continue beyond any applicable cure
period set forth in this Lease, Landlord may, but shall not be obligated to,
without waiving or releasing Tenant from any obligations of Tenant, make any
such payment or perform any such other act on Tenant's part to be made or
performed as is in this Lease provided. All sums so paid by Landlord and all
reasonable incidental costs, together with interest thereon at the rate of [***]
per annum from the date of such payment by Landlord, shall be payable to
Landlord on demand and Tenant covenants to pay any such sums, and Landlord shall
have (in addition to any other right or remedy of Landlord) the same rights and
remedies in the event of the nonpayment thereof by Tenant as in the case of
default by Tenant in the payment of the rent.
(o) Access, Changes in Protect Facilities, Name.
(i) Every part of the Project except the inside surfaces
of all walls, windows and doors bounding the Premises (including exterior
building walls, the rooftop, core corridor walls and doors and any core corridor
entrance), and any space in or adjacent to the Premises or within the Project
used for shafts, stacks, pipes, conduits, fan rooms, ducts, electric or other
utilities, sinks or other building facilities, and the use thereof, as well as
access thereto through the Premises for the purposes of operation, maintenance,
decoration and repair, are reserved to Landlord.
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(ii) Tenant shall permit Landlord to install, use and
maintain pipes, ducts and conduits within the walls, columns and ceilings of the
Premises and throughout the Project.
(iii) Landlord reserves the right, without incurring any
liability to Tenant therefor, to make such changes in or to the Project and the
fixtures and equipment thereof, as well as in or to the street entrances, halls,
passages, elevators, stairways and other improvements thereof, as it may deem
necessary or desirable.
(iv) Landlord may adopt any name for the Project and
Landlord reserves the right, from time to time, to change the name and/or
address of the Project.
(p) Signing Authority. Concurrently with Tenant's execution of
this Lease, Tenant shall provide to Landlord reasonably satisfactory evidence
that the individuals executing this Lease on behalf of Tenant are authorized to
bind Tenant and to enter into this Lease.
(q) Identification of Tenant.
(i) If Tenant constitutes more than one person or entity,
(A) each of them shall be jointly and severally liable for the keeping,
observing and performing of all of the terms, covenants, conditions and
provisions of this Lease to be kept, observed and performed by Tenant, (B) the
term "Tenant" as used in this Lease shall mean and include each of them jointly
and severally, and (C) the act of or notice from, or notice or refund to, or the
signature of, any one or more of them, with respect to the tenancy of this
Lease, including, but not limited to, any renewal, extension, expiration,
termination or modification of this Lease, shall be binding upon each and all of
the persons or entities executing this Lease as Tenant with the same force and
effect as if each and all of them had so acted or so given or received such
notice or refund or so signed.
(ii) If Tenant is a partnership (or is comprised of two or
more persons, individually and as co-partners of a partnership) or if Tenant's
interest in this Lease shall be assigned to a partnership (or to two or more
persons, individually and as co-partners of a partnership) pursuant to Article
15 hereof (any such partnership and such persons hereinafter referred to in this
Article 30(q)(ii) as `Partnership Tenant"), the following provisions of this
Lease shall apply to such Partnership Tenant:
(A) The liability of each of the parties
comprising Partnership Tenant shall be joint and several.
(B) Each of the parties comprising Partnership
Tenant hereby consents in advance to, and agrees to be bound by, any written
instrument which may hereafter be executed, changing, modifying or discharging
this Lease, in whole or in part, or surrendering all or any part of the Premises
to the Landlord, and by notices, demands, requests or other communication which
may hereafter be given, by the individual or individuals authorized to execute
this Lease on behalf of Partnership Tenant under Subparagraph (p) above.
(C) Any bills, statements, notices, demands,
requests or other communications given or rendered to Partnership Tenant or to
any of the parties comprising Partnership Tenant shall be deemed given or
rendered to Partnership Tenant and to all such parties and shall be binding upon
Partnership Tenant and all such parties.
(D) If Partnership Tenant admits new partners,
all of such new partners shall, by their admission to Partnership Tenant, be
deemed to have assumed performance of all of the terms, covenants and conditions
of this Lease on Tenant's part to be observed and performed.
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Partnership Tenant shall give prompt notice to Landlord of the
admission of any such new partners, and, upon demand of Landlord, shall cause
each such new partner to execute and deliver to Landlord an agreement in form
satisfactory to Landlord, wherein each such new partner shall assume performance
of all of the terms, covenants and conditions of this Lease on Partnership
Tenant's part to be observed and performed (but neither Landlord's failure to
request any such agreement nor the failure of any such new partner to execute or
deliver any such agreement to Landlord shall terminate the provisions of clause
(D) of this Article 30(q)(ii) or relieve any such new partner of its obligations
thereunder).
(r) Intentionally Omitted.
IN WITNESS WHEREOF, the parties have executed this Lease, consisting of
the foregoing provisions and Articles, including all exhibits and other
attachments referenced therein, as of the date first above written.
"LANDLORD" ARDEN REALTY FINANCE V, L.L.C.,
a Delaware limited liability company
By: /s/ Robert C. Peddicord
-------------------------------
Its: Robert C. Peddicord
--------------------------
Senior Vice President
Leasing and Operations
"TENANT" LINDOWS.COM, INC.,
a Delaware corporation dba Delaware
Lindows.com, Inc.
By: /s/ Chad H. Olson
-------------------------------
Print Name: Chad H. Olson
Title: CFO
By: /s/ Kevin Carmony
-------------------------------
Print Name: Kevin Carmony
Title: President
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EXHIBIT "A"
PREMISES
[Floor Plan]
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[Suite 300 Floor Plan]
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EXHIBIT "B"
RULES AND REGULATIONS
1. No sign, advertisement or notice shall be displayed, printed
or affixed on or to the Premises or to the outside or inside of the Project or
so as to be visible from outside the Premises or Project without Landlord's
prior written consent. Landlord shall have the right to remove any non-approved
sign, advertisement or notice, without notice to and at the expense of Tenant,
and Landlord shall not be liable in damages for such removal. All approved signs
or lettering on doors and walls shall be printed, painted, affixed or inscribed
at the expense of Tenant by Landlord or by a person selected by Landlord and in
a manner and style acceptable to Landlord.
2. Tenant shall not obtain for use on the Premises ice, waxing,
cleaning, interior glass polishing, rubbish removal, towel or other similar
services, or accept barbering or bootblackening, or coffee cart services, milk,
soft drinks or other like services on the Premises, except from persons
authorized by Landlord and at the hours and under regulations fixed by Landlord.
No vending machines or machines of any description shall be installed,
maintained or operated upon the Premises without Landlord's prior written
consent.
3. The sidewalks, halls, passages, exits, entrances, elevators
and stairways shall not be obstructed by Tenant or used for any purpose other
than for ingress and egress from Tenant's Premises. Under no circumstances is
trash to be stored in the corridors. Notice must be given to Landlord for any
large deliveries. Furniture, freight and other large or heavy articles, and all
other deliveries may be brought into the Project only at times and in the manner
designated by Landlord, and always at Tenant's sole responsibility and risk.
Landlord may impose reasonable charges for use of freight elevators after or
before normal business hours. All damage done to the Project by moving or
maintaining such furniture, freight or articles shall be repaired by Landlord at
Tenant's expense. Tenant shall not take or permit to be taken in or out of
entrances or passenger elevators of the Project, any item normally taken, or
which Landlord otherwise reasonably requires to be taken, in or out through
service doors or on freight elevators. Tenant shall move all supplies, furniture
and equipment as soon as received directly to the Premises, and shall move all
waste that is at any time being taken from the Premises directly to the areas
designated for disposal.
4. Toilet rooms, toilets, urinals, wash bowls and other apparatus
shall not be used for any purpose other than for which they were constructed and
no foreign substance of any kind whatsoever shall be thrown therein.
5. Tenant shall not overload the floor of the Premises or mark,
drive nails, screw or drill into the partitions, ceilings or floor or in any way
deface the Premises. Tenant shall not place typed, handwritten or computer
generated signs in the corridors or any other common areas. Should there be a
need for signage additional to the Project standard tenant placard, a written
request shall be made to Landlord to obtain approval prior to any installation.
All costs for said signage shall be Tenant's responsibility.
6. In no event shall Tenant place a load upon any floor of the
Premises or portion of any such flooring exceeding the floor load per square
foot of area for which such floor is designed to carry and which is allowed by
law, or any machinery or equipment which shall cause excessive vibration to the
Premises or noticeable vibration to any other part of the Project. Prior to
bringing any heavy safes, vaults, large computers or similarly heavy equipment
into the Project, Tenant shall inform Landlord in writing of the dimensions and
weights thereof and shall obtain Landlord's consent thereto. Such consent shall
not constitute a representation or warranty
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by Landlord that the safe, vault or other equipment complies, with regard to
distribution of weight and/or vibration, with the provisions of this Rule 6 nor
relieve Tenant from responsibility for the consequences of such noncompliance,
and any such safe, vault or other equipment which Landlord determines to
constitute a danger of damage to the Project or a nuisance to other tenants,
either alone or in combination with other heavy and/or vibrating objects and
equipment, shall be promptly removed by Tenant, at Tenant's cost, upon
Landlord's written notice of such determination and demand for removal thereof.
7. Tenant shall not use or keep in the Premises or Project any
kerosene, gasoline or inflammable, explosive or combustible fluid or material,
or use any method of heating or air-conditioning other than that supplied by
Landlord.
8. 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.
9. Tenant shall not install or use any blinds, shades, awnings or
screens in connection with any window or door of the Premises and shall not use
any drape or window covering facing any exterior glass surface other than the
standard drapes, blinds or other window covering established by Landlord.
10. Tenant shall cooperate with Landlord in obtaining maximum
effectiveness of the cooling system by closing window coverings when the sun's
rays fall directly on windows of the Premises. Tenant shall not obstruct, alter,
or in any way impair the efficient operation of Landlord's heating, ventilating
and air-conditioning system. Tenant shall not tamper with or change the setting
of any thermostats or control valves.
11. The Premises shall not be used for manufacturing or for the
storage of merchandise except as such storage may be incidental to the permitted
use of the Premises. Tenant shall not, without Landlord's prior written consent,
occupy or permit any portion of the Premises to be occupied or used for the
manufacture or sale of liquor or tobacco in any form, or a barber or manicure
shop, or as an employment bureau. The Premises shall not be used for lodging or
sleeping or for any improper, objectionable or immoral purpose. No auction shall
be conducted on the Premises.
12. Tenant shall not make, or permit to be made, any unseemly or
disturbing noises, or disturb or interfere with occupants of Project or
neighboring buildings or premises or those having business with it by the use of
any musical instrument, radio, phonographs or unusual noise, or in any other
way.
13. No bicycles, vehicles or animals of any kind shall be brought
into or kept in or about the Premises, and no cooking shall be done or permitted
by any tenant in the Premises, except that the preparation of coffee, tea, hot
chocolate and similar items for tenants, their employees and visitors shall be
permitted. No tenant shall cause or permit any unusual or objectionable odors to
be produced in or permeate from or throughout the Premises. The foregoing
notwithstanding, Tenant shall have the right to use a microwave and to heat
microwavable items typically heated in an office. No hot plates, toasters,
toaster ovens or similar open element cooking apparatus shall be permitted in
the Premises.
14. The sashes, sash doors, skylights, windows and doors that
reflect or admit light and air into the halls, passageways or other public
places in the Project shall not be covered or obstructed by any tenant, nor
shall any bottles, parcels or other articles be placed on the window sills.
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15. No additional locks or bolts of any kind shall be placed upon
any of the doors or windows by any tenant, nor shall any changes be made in
existing locks or the mechanisms thereof unless Landlord is first notified
thereof, gives written approval, and is furnished a key therefor. Each tenant
must, upon the termination of his tenancy, give to Landlord all keys and key
cards of stores, offices, or toilets or toilet rooms, either furnished to, or
otherwise procured by, such tenant, and in the event of the loss of any keys so
furnished, such tenant shall pay Landlord the cost of replacing the same or of
changing the lock or locks opened by such lost key if Landlord shall deem it
necessary to make such change. If more than two keys for one lock are desired,
Landlord will provide them upon payment therefor by Tenant. Tenant shall not key
or re-key any locks. All locks shall be keyed by Landlord's locksmith only.
16. Landlord shall have the right to prohibit any advertising by
any tenant which, in Landlord's opinion, tends to impair the reputation of the
Project or its desirability as an office building and upon written notice from
Landlord any tenant shall refrain from and discontinue such advertising.
17. Landlord reserves the right to control access to the Project
by all persons after reasonable hours of generally recognized business days and
at all hours on Sundays and legal holidays and may at all times control access
to the equipment areas of the Project outside the Premises. Each tenant shall be
responsible for all persons for whom it requests after hours access and shall be
liable to Landlord for all acts of such persons. Landlord shall have the right
from time to time to establish reasonable rules pertaining to freight elevator
usage, including the allocation and reservation of such usage for tenants'
initial move-in to their premises, and final departure therefrom. Landlord may
also establish from time to time reasonable rules and charges for accessing the
equipment areas of the Project, including the risers, rooftops and telephone
closets.
18. Any person employed by any tenant to do janitorial work shall,
while in the Project and outside of the Premises, be subject to and under the
control and direction of the Office of the Project or its designated
representative such as security personnel (but not as an agent or servant of
Landlord, and the Tenant shall be responsible for all acts of such persons).
19. All doors opening on to public corridors shall be kept closed,
except when being used for ingress and egress. Tenant shall cooperate and comply
with any reasonable safety or security programs, including fire drills and air
raid drills, and the appointment of "fire wardens" developed by Landlord for the
Project, or required by law. Before leaving the Premises unattended, Tenant
shall close and securely lock all doors or other means of entry to the Premises
and shut off all lights and water faucets in the Premises.
20. The requirements of tenants will be attended to only upon
application to the Office of the Project.
21. Canvassing, soliciting and peddling in the Project are
prohibited and each tenant shall cooperate to prevent the same.
22. All office equipment of any electrical or mechanical nature
shall be placed by tenants in the Premises in settings approved by Landlord, to
absorb or prevent any vibration, noise or annoyance.
23. No air-conditioning unit or other similar apparatus shall be
installed or used by any tenant without the prior written consent of Landlord.
Tenant shall pay the cost of all electricity used for air-conditioning in the
Premises if such electrical consumption exceeds
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normal office requirements, regardless of whether additional apparatus is
installed pursuant to the preceding sentence.
24. There shall not be used in any space, or in the public halls
of the Project, either by any tenant or others, any hand trucks except those
equipped with rubber tires and side guards.
25. All electrical ceiling fixtures hung in offices or spaces
along the perimeter of the Project must be fluorescent and/or of a quality,
type, design and bulb color approved by Landlord. Tenant shall not permit the
consumption in the Premises of more than 2'h watts per net usable square foot in
the Premises in respect of office lighting nor shall Tenant permit the
consumption in the Premises of more than 1'/z watts per net usable square foot
of space in the Premises in respect of the power outlets therein, at any one
time. In the event that such limits are exceeded, Landlord shall have the right
to require Tenant to remove lighting fixtures and equipment and/or to charge
Tenant for the cost of the additional electricity consumed.
26. Parking.
(a) Project parking facility hours shall be 7:00 a.m. to
7:00 p.m., Monday through Friday, and closed on weekends, state and federal
holidays excepted, as such hours may be revised from time to time by Landlord.
(b) Automobiles must be parked entirely within the stall
lines on the floor.
(c) All directional signs and arrows must be observed.
(d) The speed limit shall be 5 miles per hour.
(e) Parking is prohibited in areas not striped for
parking.
(f) Parking cards or any other device or form of
identification supplied by Landlord (or its operator) shall remain the property
of Landlord (or its operator). 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 or assignable and any device in the possession of an unauthorized
holder will be void. There will be a replacement charge to the Tenant or person
designated by Tenant of $10.00 for loss of any parking card.
(g) The monthly rate for parking is payable one (1) month
in advance and must be paid by the third business day of each month. Failure to
do so will automatically cancel parking privileges and a charge at the
prevailing daily rate will be due. No deductions or allowances from the monthly
rate will be made for days parker does not use the parking facilities.
(h) Tenant may validate visitor parking by such method or
methods as the Landlord may approve, at the validation rate from time to time
generally applicable to visitor parking.
(i) Landlord (and its operator) may refuse to permit any
person who violates the within rules to park in the Project parking facility,
and any violation of the rules shall subject the automobile to removal from the
Project parking facility at the parker's expense. In either of said events,
Landlord (or its operator) shall refund a prorata portion of the current monthly
parking rate and the sticker or any other form of identification supplied by
Landlord (or its operator) will be returned to Landlord (or its operator).
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(j) Project parking facility managers or attendants are
not authorized to make or allow any exceptions to these Rules and Regulations.
(k) All responsibility for any loss or damage to
automobiles or any personal property therein is assumed by the parker.
(1) Loss or theft of parking identification devices from
automobiles must be reported to the Project parking facility manager
immediately, and a lost or stolen report must be filed by the parker at that
time.
(m) The parking facilities are for the sole purpose of
parking one automobile per space. Washing, waxing, cleaning or servicing of any
vehicles by the parker or his agents is prohibited.
(n) Landlord (and its operator) reserves the right to
refuse the issuance of monthly stickers or other parking identification devices
to any Tenant and/or its employees who refuse to comply with the above Rules and
Regulations and all City, State or Federal ordinances, laws or agreements.
(o) Tenant agrees to acquaint all employees with these
Rules and Regulations.
(p) No vehicle shall be stored in the Project parking
facility for a period of more than one (1) week.
27. The Project is a non-smoking Project. Smoking or carrying
lighted cigars o: cigarettes in the Premises or the Project, including the
elevators in the Project, is prohibited.
28. Tenant shall not, without Landlord's prior written consent
(which consent may be granted or withheld in Landlord's absolute discretion),
allow any employee or agent to carry any type of gun or other firearm in or
about any of the Premises or Project.
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EXHIBIT "C"
NOTICE OF TERM DATES
AND TENANT'S PROPORTIONATE SHARE
TO: _______________________________________ DATE: ____________________
____________________________________________
____________________________________________
RE: Lease dated __________, 20__, between _________________________________
______________________ ("Landlord"), and ("Tenant"), concerning
Suite _________, located at __________________________________________.
Ladies and Gentlemen:
In accordance with the Lease, Landlord wishes to advise and/or confirm
the following:
1. That the Premises have been accepted herewith by the Tenant as
being substantially complete in accordance with the Lease and that there is no
deficiency in construction.
2. That the Tenant has taken possession of the Premises and
acknowledges that under the provisions of the Lease the Term of said Lease shall
commence as of ______________ for a term of _____________________ ending on
____________________.
3. That in accordance with the Lease, Basic Rental commenced to
accrue on ________________________________.
4. If the Commencement Date of the Lease is other than the first
day of the month, the first billing will contain a prorata adjustment. Each
billing thereafter shall be for the full amount of the monthly installment as
provided for in said Lease.
5. Rent is the and payable in advance on the first day of each
and every month during the Term of said Lease. Your rent checks should be made
payable to ________________ at ___________________________________________.
6. The exact number of rentable square feet within the Premises
is ___________ square feet.
7. Tenant's Proportionate Share, as adjusted based upon the exact
number of rentable square feet within the Premises is ______ %.
AGREED AND ACCEPTED:
TENANT:
____________________________________________
a __________________________________________
By:_________________________________________
Its:__________________________________
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