California-Milpitas-890 Hillview Court Lease - The Irvine Co. and NetRatings Inc.
OFFICE SPACE LEASE
BETWEEN
THE IRVINE COMPANY
AND
NETRATINGS, INC.
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THIS LEASE is made as of the 9th day of November, 1999, by and between
THE IRVINE COMPANY, hereafter called "Landlord," and NETRATINGS, INC., a
Delaware corporation, hereinafter called "Tenant."
ARTICLE I. BASIC LEASE PROVISIONS
Each reference in this Lease to the "Basic Lease Provisions" shall mean and
refer to the following collective terms, the application of which shall be
governed by the provisions in the remaining Articles of this Lease.
1. TENANT'S TRADE NAME: N/A
2. PREMISES: Suite No. 300 (the Premises are more particularly described in
Section 2.1).
ADDRESS OF BUILDING: 890 Hillview Court, Milpitas, CA 95035
PROJECT DESCRIPTION (IF APPLICABLE): Hillview Executive Park
3. USE OF PREMISES: General Office, engineering and research and development,
and for no other use.
4. ESTIMATED COMMENCEMENT DATE: February 15, 2000
5. LEASE TERM: Sixty (60) months, plus such additional days as may be
required to cause this Lease to terminate on the final day of the calendar
month.
6. BASIC RENT: Forty-Eight Thousand Three Hundred Seventy-Two Dollars
($48,372.00) per month.
RENTAL ADJUSTMENTS:
Commencing twelve (12) months following the Commencement Date, the Basic
Rent shall be Forty-Nine Thousand Seven Hundred Eighty-Three Dollars
($49,783.00) per month.
Commencing twenty-four (24) months following the Commencement Date, the
Basic Rent shall be Fifty-One Thousand Three Hundred Ninety-Five Dollars
($51,395.00) per month.
Commencing thirty-six (36) months following the Commencement Date, the
Basic Rent shall be Fifty-Two Thousand Eight Hundred Six Dollars
($52,806.00) per month.
Commencing forty-eight (48) months following the Commencement Date, the
Basic Rent shall be Fifty-Four Thousand Four Hundred Nineteen Dollars
($54,419.00) per month.
7. PROPERTY TAX BASE: The Property Taxes per rentable square foot actually
incurred by Landlord for the twelve month period ending June 30, 2000.
BUILDING COST BASE: The Building Costs per rentable square foot actually
incurred by Landlord for the twelve month period ending June 30, 2000.
EXPENSE RECOVERY PERIOD: Every twelve month period during the Term (or
portion thereof during the first and last Lease years) ending June 30.
8. FLOOR AREA OF PREMISES: approximately 20,155 rentable square feet
9. SECURITY DEPOSIT: $59,861.00
10. BROKER(s): Cornish & Carey Commercial
11. PLAN APPROVAL DATE: November 15, 1999
12. PARKING: Eighty-One (81) unreserved vehicle parking spaces.
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13. ADDRESS FOR PAYMENTS AND NOTICES:
LANDLORD TENANT
Insignia/ESG of California, Inc. NetRatings, Inc.
160 West Santa Clara Street 890 Hillview Court
Suite 1350 Suite 300
San Jose, CA 95113 Milpitas, CA 95035
with a copy of notices to:
THE IRVINE COMPANY
P.O. Box 6370
Newport Beach, CA 92658-6370
Attn: Vice President, Operations - Office Properties
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ARTICLE II. PREMISES
SECTION 2.1. LEASED PREMISES. Landlord leases to Tenant and Tenant rents
from Landlord the premises shown in Exhibit A (the "Premises"), containing
approximately the floor area set forth in Item 8 of the Basic Lease Provisions
and known by the suite number identified in Item 2 of the Basic Lease
Provisions. The Premises are located in the building identified in Item 2 of
the Basic Lease Provisions (which together with the underlying real property, is
called the "Building"), and is a portion of the project described in Item 2 (the
"Project"). If, upon completion of the space plans for the Premises, Landlord's
architect or space planner determines that the rentable square footage of the
Premises differs from that set forth in the Basic Lease Provisions, then
Landlord shall so notify Tenant and the Basic Rent (as shown in Item 6 of the
Basic Lease Provisions) shall be promptly adjusted in proportion to the change
in square footage. Within five (5) days following Landlord's request, the
parties shall memorialize the adjustments by executing an amendment to this
Lease prepared by Landlord.
SECTION 2.2. ACCEPTANCE OF PREMISES. Tenant acknowledges that neither
Landlord nor any representative of Landlord has made any representation or
warranty with respect to the Premises or the Building or the suitability or
fitness of either for any purpose, except as set forth in this Lease. The
taking of possession or use of the Premises by Tenant for any purpose other than
construction shall conclusively establish that the Premises and the Building
were in satisfactory condition and in conformity with the provisions of this
Lease in all respects, except for those matters which Tenant shall have brought
to Landlord's attention on a written punch list. The list shall be limited to
any items required to be accomplished by Landlord under the Work Letter (if any)
attached as Exhibit X, and shall be delivered to Landlord within thirty (30)
days after the term ("Term") of this Lease commences as provided in Article III
below. If there is no Work Letter, or if no items are required of Landlord
under the Work Letter, by taking possession of the Premises Tenant accepts the
improvements in their existing condition, and waives any right or claim against
Landlord arising out of the condition of the Premises. Nothing contained in
this Section shall affect the commencement of the Term or the obligation of
Tenant to pay rent. Landlord shall diligently complete all punch list items of
which it is notified as provided above.
SECTION 2.3. BUILDING NAME AND ADDRESS. Tenant shall not utilize any
name selected by Landlord from time to time for the Building and/or the Project
as any part of Tenant's corporate or trade name. Landlord shall have the right
to change the name, number or designation of the Building or Project without
liability to Tenant; provided, however, that should Landlord voluntarily change
the address of the Building, Landlord shall reimburse Tenant for its reasonable
out-of-pocket stationery/brochure reprinting costs.
SECTION 2.4. OPTION TO EXPAND. Provided Tenant is not then in default
hereunder, Landlord hereby grants Tenant an option to lease, for a term equal
to the then unexpired portion of the Term of this Lease, approximately nine
thousand (9,000) rentable square feet of space on the second floor of the
Building in the location designated on Exhibit A-1 hereto (the "Option
Space") in accordance with and subject to the provisions of this Section 2.4;
provided, however, that Landlord may upon notice to Tenant at any time
designate a different location on the second floor for the Option Space.
Tenant shall exercise said option by providing Landlord with written notice
of its intent to lease the Option Space (the "Commitment Notice") not later
than the expiration of the third (3rd) Lease month following the Commencement
Date ("Option Expiration Date"). If Tenant fails to timely deliver the
Commitment Notice, Landlord shall be free to lease the Option Space to a
third party, subject only to the provisions of Section 2.5 below. If Tenant
timely delivers the Commitment Notice, Landlord shall prepare an appropriate
and commercially reasonable amendment to this Lease consistent with the terms
of this Section 2.4 and the other provisions of this Lease, and Tenant shall
execute and deliver the amendment to Landlord within twenty (20) days of its
receipt from Landlord. Should Tenant fail to deliver the amendment to
Landlord within that time, Landlord shall, in addition to any right or remedy
available at law or in equity (exclusive of the right to terminate this
Lease), be free to lease the Option Space to a third party. The Option Space
shall be subject to all of the terms of this Lease, except that (i) subject
to Landlord's rights in the event of "Tenant Delays" as described herein, the
term shall commence on the date Landlord has substantially completed the
tenant improvements for the Option Space (the "Commencement Date for the
Option Space"); (ii) from and after the Commencement Date for the Option
Space, the Basic Rent for the Option Space shall be at the same rate per
rentable square foot per month that Tenant is then paying from time to time
for the original Premises leased hereunder; and (iii) the tenant improvements
for the Option Space shall be completed in accordance with the terms and
conditions of the "Work Letter" attached hereto as Exhibit X, except that the
"Landlord's Contribution" set forth therein shall be based on Twenty-Five
Dollars ($25.00) per usable square foot of the Option Space and no
"Additional Allowance" shall be provided. Tenant's rights under this Section
2.4 shall belong solely to the original Tenant and may not be assigned or
transferred by it except in connection with an assignment of this Lease to a
"Tenant Affiliate" (as defined below). Any other attempted assignment or
transfer shall be void and of no force or effect.
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SECTION 2.5. RIGHT OF FIRST OFFER. Provided Tenant is not then in default
hereunder, Landlord hereby grants Tenant the one-time right ("First Right") to
lease, during the six (6) month period following the Option Expiration Date, the
Option Space as described in Section 2.4 above, in accordance with and subject
to the provisions of this Section 2.5. At any time during the six (6) month
period following the Option Expiration Date, following receipt by Landlord of a
bona fide letter of intent, request for proposal or other written expression of
interest to lease all or a portion of the Option Space, Landlord shall give
Tenant written notice of the Basic Rent, term, operating expense base, security
deposit, and tenant improvement allowance (collectively, the "Economic Terms")
upon which Landlord is willing to lease the Option Space, which Economic Terms
shall be expressed on a per square foot basis if and to the extent applicable.
Within five (5) business days after receipt of Landlord's notice, Tenant must
give Landlord written notice pursuant to which Tenant shall elect to (i) lease
all, but not less than all, of the Option Space upon such Economic Terms and the
same non-Economic Terms as set forth in this Lease; or (ii) refuse to lease the
Option Space on such Economic and non-Economic Terms. In the event that Tenant
does not so respond in writing to Landlord's notice within said period, Tenant
shall be deemed to have elected clause (ii) above. Should Tenant fail to elect
to lease the Option Space in a timely manner as aforesaid, Landlord shall be
free thereafter to lease all or any portion thereof to any third party and
Tenant's rights under this Section 2.5 shall thereupon cease and be of no
further force and effect. Should Tenant timely elect to lease the Option Space,
Landlord shall promptly prepare and deliver to Tenant a commercially reasonable
amendment to this Lease consistent with the foregoing, and Tenant shall execute
and return same to Landlord within fifteen (15) business days. Tenant's failure
to timely return the amendment shall entitle Landlord to specifically enforce
Tenant's commitment to lease the Option Space, to lease such space to a third
party, and/or to pursue any other available legal remedy (exclusive of the right
to terminate this Lease). Tenant's rights under this Section 2.5 shall belong
solely to the original Tenant and may not be assigned or transferred by it
except in connection with an assignment of this Lease to a Tenant Affiliate.
Any other attempted assignment or transfer shall be void and of no force or
effect.
ARTICLE III. TERM
SECTION 3.1. GENERAL. The Term shall be for the period shown in Item 5
of the Basic Lease Provisions. The Term shall commence ("Commencement Date") on
the earlier of (a) subject to the provisions of Section 3.2, the Estimated
Commencement Date as set forth in Item 4 of the Basic Lease Provisions, or (b)
the date Tenant commences its business activities within the Premises. Promptly
following request by Landlord, the parties shall memorialize, on a form provided
by Landlord and reasonably acceptable to Tenant, the actual Commencement Date
and the expiration date ("Expiration Date") of this Lease.
SECTION 3.2. DELAY IN POSSESSION. If Landlord, for any reason
whatsoever, cannot deliver possession of the Premises to Tenant on or before the
Estimated Commencement Date, then subject to Section 3.4 below, this Lease shall
not be void or voidable nor shall Landlord be liable to Tenant for any resulting
loss or damage. However, Tenant shall not be liable for any rent and the
Commencement Date shall not occur until Landlord delivers possession of the
Premises and the Premises are in fact ready for occupancy as defined below,
except that if Landlord's failure to so deliver possession on the Estimated
Commencement Date is attributable to any action or inaction by Tenant (including
without limitation any Tenant Delay described in the Work Letter, if any,
attached to this Lease), then the Commencement Date shall not be advanced to the
date on which possession of the Premises is tendered to Tenant, and Landlord
shall be entitled to full performance by Tenant (including the payment of rent)
from the date Landlord would have been able to deliver the Premises to Tenant
but for Tenant's delay(s). The Premises shall be deemed ready for occupancy
upon the tendered date, but only if and when Landlord, to the extent applicable,
(a) has put into operation all building services essential for the use of the
Premises by Tenant, (b) has provided reasonable access to the Premises for
Tenant so that they may be used without unnecessary interference, (c) has
substantially completed all the work required to be done by Landlord in this
Lease, and (d) has obtained requisite governmental approvals to Tenant's
occupancy.
SECTION 3.3. RIGHT TO EXTEND. Provided that Tenant is not then in
default under any provision of this Lease, Tenant may extend the Term of this
Lease for one period of sixty (60) months. Tenant shall exercise such right to
extend the Term by and only by delivering to Landlord, not less than nine (9)
months or more than twelve (12) months prior to the scheduled expiration date of
the Term, Tenant's written notice of its irrevocable election to extend (the
"Exercise Notice"). Tenant's failure timely to deliver the Exercise Notice
shall cause this extension right to lapse and be of no further force or effect.
The Basic Rent payable under the Lease during the extension of the Term shall be
at the prevailing rental rate and other economic terms for office space being
leased by Landlord in the Project with a term commencing at or about the
commencement of the applicable extension period, as determined by Landlord based
on a reasonable extrapolation of its then-current leasing rates (the "Prevailing
Rate"). In
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determining the Prevailing Rate, recent new and renewal leases with
non-equity tenants of the Project shall be considered. The Prevailing Rate
shall reflect the rental rate and terms payable in those third party
transactions, taking into account pertinent economic concessions then
generally being granted by Landlord such as "free rent," Operating Expense
base years, parking charge limitations, and the like. It is understood,
however, that no consideration shall be given to brokerage commissions, lease
"takeover" payments, moving allowances, or tenant improvement allowances
(other than retrofit allowances granted to renewal tenants). The rental
rates payable in any third party transactions executed more than six (6)
months prior to the commencement of the extension period shall be reasonably
extrapolated, if applicable, to reflect current rental trends.
Following Tenant's delivery of the Exercise Notice, but not later than six (6)
months prior to the expiration date of the Term, Landlord shall notify Tenant in
writing ("Landlord's Notice") of Landlord's calculation of the Prevailing Rate
for the extension period based on the foregoing criteria. Should Tenant dispute
Landlord's calculation, then Tenant may, by written notice to Landlord within
thirty (30) days following Landlord's Notice, submit the reasonableness of
Landlord's calculation of the Prevailing Rate to arbitration in accordance with
Section 14.7(b) of the Lease (the "Arbitration Election"). Should Tenant fail
timely to make the Arbitration Election, then Landlord's determination of the
Prevailing Rate shall be conclusive.
Within twenty (20) days after the determination of the Prevailing Rate, Landlord
shall prepare a commercially reasonable amendment to this Lease consistent with
the foregoing for the extension period and Tenant shall execute and return same
to Landlord within fifteen (15) days. If Tenant fails timely to do so, then
Landlord may either enforce its rights under this Section or, upon written
notice to Tenant, elect to cause Tenant's right to extend to be extinguished, in
which event this Lease shall terminate as of the originally scheduled date of
expiration. Should the Prevailing Rate not be established by the commencement
of the extension period, then Tenant shall continue paying rent at the rate in
effect during the month preceding such commencement, and a lump sum adjustment
shall be made promptly upon the determination of such new rental.
The right to extend granted in this Section shall be personal to the original
Tenant and may not be assigned or transferred by it except in connection with an
assignment of this Lease to a Tenant Affiliate. Any other attempt to assign or
transfer such right shall be void from its inception. Time is specifically made
of the essence in this Section.
SECTION 3.4. TENANT'S RIGHT TO CANCEL FOR LATE DELIVERY. If Landlord
fails to deliver possession of the Premises, ready for occupancy, by the
"Outside Date" as defined below, then Tenant shall have the right to terminate
this Lease by giving written notice thereof to Landlord after the Outside Date
but prior to Landlord's delivery of the Premises ready for Tenant's occupancy as
aforesaid. If, from time to time prior to the Outside Date, Landlord determines
that it will not be able to deliver possession of the Premises, ready for
occupancy, by the Outside Date, Landlord shall deliver to Tenant a written
notice setting forth Landlord's opinion as to the revised outside date by which
it shall be able to deliver the Premises to Tenant, ready for occupancy. Within
five (5) working days following delivery of that notice, Tenant may elect by
written notice to Landlord to terminate this Lease; otherwise, the Outside Date
shall be deemed extended to the revised date set forth in Landlord's notice.
For purposes hereof, the "Outside Date" shall mean the date that is five (5)
months following the last to occur of (i) Tenant's execution and delivery to
Landlord of this Lease in final form, (ii) Tenant's written approval of final
construction drawings and pricing for the tenant improvement work and the
issuance of any required permit for that work, and (iii) the payment by Tenant
of all sums and deposits required hereunder prior to the commencement of
construction; provided that the Outside Date shall be extended on a day-for-day
basis for the period of any Tenant Delays.
ARTICLE IV. RENT AND OPERATING EXPENSES
SECTION 4.1. BASIC RENT. From and after the Commencement Date, Tenant
shall pay to Landlord without deduction or offset a Basic Rent for the Premises
in the total amount shown (including subsequent adjustments, if any) in Item 6
of the Basic Lease Provisions. Any rental adjustment shown in Item 6 shall be
deemed to occur on the specified monthly anniversary of the Commencement Date,
whether or not that date occurs at the end of a calendar month. The rent shall
be due and payable in advance commencing on the Commencement Date (as prorated
for any partial month) and continuing thereafter on the first day of each
successive calendar month of the Term. No demand, notice or invoice shall be
required. An installment of rent in the amount of one (1) full month's Basic
Rent at the initial rate specified in Item 6 of the Basic Lease Provisions shall
be delivered to Landlord concurrently with Tenant's execution of this Lease and
shall be applied against the Basic Rent first due hereunder.
SECTION 4.2. OPERATING EXPENSE INCREASE.
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(a) Tenant shall compensate Landlord, as additional rent, for
Tenant's proportionate shares of "Building Costs" and "Property Taxes," as those
terms are defined below, incurred by Landlord in the operation of the Building
and Project. Property Taxes and Building Costs are mutually exclusive and may
be billed separately or in combination as determined by Landlord. Tenant's
proportionate share of Property Taxes shall equal the product of the rentable
floor area of the Premises multiplied by the difference of (i) Property Taxes
per rentable square foot less (ii) the Property Tax Base set forth in Item 7 of
the Basic Lease Provisions. Tenant's proportionate share of Building Costs
shall equal the product of the rentable floor area of the Premises multiplied by
the difference of (i) Building Costs per rentable square foot less (ii) the
Building Cost Base set forth in Item 7 of the Basic Lease Provisions. For
purposes hereof, Tenant shall be responsible for 35.8% of Building Costs and
Property Taxes allocable to the Building with respect to the initial Premises
leased hereunder by Tenant. Tenant acknowledges Landlord's rights to make
changes or additions to the Building and/or Project from time to time pursuant
to Section 6.5 below, in which event the total rentable square footage within
the Building and/or Project may be adjusted. For convenience of reference,
Property Taxes and Building Costs may sometimes be collectively referred to as
"Operating Expenses."
(b) Commencing prior to the start of the first full "Expense Recovery
Period" of the Lease (as defined in Item 7 of the Basic Lease Provisions), and
prior to the start of each full or partial Expense Recovery Period thereafter,
Landlord shall give Tenant a written estimate of the amount of Tenant's
proportionate shares of Building Costs and Property Taxes for the Expense
Recovery Period or portion thereof. Tenant shall pay the estimated amounts to
Landlord in equal monthly installments, in advance, with Basic Rent. If
Landlord has not furnished its written estimate for any Expense Recovery Period
by the time set forth above, Tenant shall continue to pay cost reimbursements at
the rates established for the prior Expense Recovery Period, if any; provided
that when the new estimate is delivered to Tenant, Tenant shall, at the next
monthly payment date, pay any accrued cost reimbursements based upon the new
estimate. Landlord may from time to time change the Expense Recovery Period to
reflect a calendar year or a new fiscal year of Landlord, as applicable, in
which event Tenant's share of Operating Expenses shall be equitably prorated for
any partial year.
(c) Within one hundred twenty (120) days after the end of each
Expense Recovery Period, Landlord shall furnish to Tenant a statement showing in
reasonable detail the actual or prorated Property Taxes and Building Costs
incurred by Landlord during the period, and the parties shall within thirty (30)
days thereafter make any payment or allowance necessary to adjust Tenant's
estimated payments, if any, to Tenant's actual proportionate shares as shown by
the annual statement. If Tenant has not made estimated payments during the
Expense Recovery Period, any amount owing by Tenant pursuant to subsection (a)
above shall be paid to Landlord in accordance with Article XVI. If actual
Property Taxes or Building Costs allocable to Tenant during any Expense Recovery
Period are less than the Property Tax Base or the Building Cost Base,
respectively, Landlord shall not be required to pay the differential to Tenant.
Should Tenant fail to object in writing to Landlord's determination of actual
Operating Expenses within sixty (60) days following delivery of Landlord's
expense statement, Landlord's determination of actual Operating Expenses for the
applicable Expense Recovery Period shall be conclusive and binding on Tenant.
(d) Even though the Lease has terminated and the Tenant has vacated
the Premises, when the final determination is made of Tenant's share of Property
Taxes and Building Costs for the Expense Recovery Period in which the Lease
terminates, Tenant shall upon notice pay the entire increase due over the
estimated expenses paid. Conversely, any overpayment made in the event expenses
decrease shall be rebated by Landlord to Tenant.
(e) If, at any time during any Expense Recovery Period, any one or
more of the Operating Expenses are increased to a rate(s) or amount(s) in excess
of the rate(s) or amount(s) used in calculating the estimated expenses for the
year, then Tenant's estimated share of Property Taxes or Building Costs, as
applicable, shall be increased for the month in which the increase becomes
effective and for all succeeding months by an amount equal to Tenant's
proportionate share of the increase. Landlord shall give Tenant written notice
of the amount or estimated amount of the increase, the month in which the
increase will become effective, Tenant's monthly share thereof and the months
for which the payments are due. Tenant shall pay the increase to Landlord as a
part of Tenant's monthly payments of estimated expenses as provided in paragraph
(b) above, commencing with the month in which effective.
(f) The term "Building Costs" shall include all expenses of operation
and maintenance of the Building and the Project, together with all appurtenant
Common Areas (as defined in Section 6.2), and shall include the following
charges by way of illustration but not limitation: water and sewer charges;
insurance premiums or reasonable premium equivalents should Landlord elect to
self-insure any risk that Landlord is authorized to insure hereunder; license,
permit, and inspection fees; heat; light; power; janitorial services; repairs;
air conditioning; supplies; materials; equipment; tools; tenant services;
programs instituted to comply with transportation management requirements;
amortization of
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capital investments reasonably intended to produce a reduction in operating
charges or energy conservation; amortization of capital investments necessary
to bring the Building into compliance with applicable laws and building codes
enacted subsequent to the completion of construction of the Building; labor;
reasonably allocated wages and salaries, fringe benefits, and payroll taxes
for administrative and other personnel directly applicable to the Building
and/or Project, including both Landlord's personnel and outside personnel;
any expense incurred pursuant to Sections 6.1, 6.2, 6.4, 7.2, and 10.2 and
Exhibits B and C below; and a reasonable overhead/management fee. It is
understood that Building Costs shall include competitive charges for direct
services provided by any subsidiary or division of Landlord. The term
"Property Taxes" as used herein shall include the following: (i) all real
estate taxes or personal property taxes, as such property taxes may be
reassessed from time to time; and (ii) other taxes, documentary transfer
fees, charges and assessments which are levied with respect to this Lease or
to the Building and/or the Project, and any improvements, fixtures and
equipment and other property of Landlord located in the Building and/or the
Project, except that general net income and franchise taxes imposed against
Landlord shall be excluded; and (iii) any tax, surcharge or assessment which
shall be levied in addition to or in lieu of real estate or personal property
taxes, other than taxes covered by Article VIII; and (iv) costs and expenses
incurred in contesting the amount or validity of any Property Tax by
appropriate proceedings. A copy of Landlord's unaudited statement of
expenses shall be made available to Tenant upon request. The Building Costs
shall be extrapolated by Landlord to reflect at least ninety-five percent
(95%) occupancy of the rentable area of the Building.
SECTION 4.3. SECURITY DEPOSIT. Concurrently with Tenant's delivery of
this Lease, Tenant shall deposit with Landlord the sum, if any, stated in Item 9
of the Basic Lease Provisions (the "Security Deposit"), to be held by Landlord
as security for the full and faithful performance of Tenant's obligations under
this Lease to pay any rent as and when due, including without limitation such
additional rent as may be owing under any provision hereof, and to maintain the
Premises as required by Sections 7.1 and 15.3. Upon any breach of those
obligations by Tenant, Landlord may apply all or part of the Security Deposit as
full or partial compensation, but only after any applicable notice has been
provided and subsequent cure period has expired. If any portion of the Security
Deposit is so applied, Tenant shall within five (5) days after written demand by
Landlord deposit cash with Landlord in an amount sufficient to restore the
Security Deposit to its original amount. Landlord shall not be required to keep
this Security Deposit separate from its general funds, and Tenant shall not be
entitled to interest on the Security Deposit. If Tenant fully performs its
obligations under this Lease, the Security Deposit or any balance thereof shall
be returned to Tenant or, at Landlord's option, to the last assignee of Tenant's
interest in this Lease.
SECTION 4.4. ADDITIONAL SECURITY DEPOSIT/RENT CREDIT. In addition to the
Security Deposit set forth in Item 9 of the Basic Lease Provisions, and as
additional security hereunder, Tenant shall deposit, concurrently with its
execution and delivery of this Lease, the sum of Two Hundred Forty-One Thousand
Eight Hundred Sixty Dollars ($241,860.00) into an escrow account with Heritage
Bank (or its successors-in-interest), San Jose Main Branch (the "Additional
Security Deposit"). Tenant understands and agrees that the escrow instructions
for the Additional Security Deposit shall be mutually acceptable to the parties
herein. Upon any default by Tenant after the expiration of any applicable notice
and cure period, including specifically Tenant's failure to pay rent or to abide
by its obligations under Sections 7.1 and 15.3 below, Landlord shall be entitled
to draw upon the Additional Security Deposit by the issuance of Landlord's sole
written demand to the issuing financial institution and Tenant agrees that the
escrow instructions shall specifically provide for same. Any such draw shall be
without waiver of any rights Landlord may have under this Lease or at law or in
equity as a result of the default. Landlord hereby agrees that in the event
Tenant has an initial public stock offering which raises funds in excess of
Thirty-Five Million Dollars ($35,000,000.00) and Tenant presents evidence
thereof satisfactory to Landlord, then provided Tenant is not then in default
under this Lease, Landlord shall give written authorization to Tenant to close
the escrow account holding the Additional Security Deposit and withdraw all
funds therefrom, in which event this Section shall thereupon be null and void.
In the event Tenant fails to raise the funds as aforesaid, and in the event that
Tenant is not and has not been in default under the Lease at any time during the
Term hereof, and provided further that Tenant has not at any time been more than
five (5) days late with respect to any payments of rent due under the Lease,
then upon the written request of Tenant, Landlord shall authorize in writing
consecutive reductions in the amount of twenty percent (20%) of the original
principal amount of the Additional Security Deposit upon the expiration of the
twelfth (12th), twenty-fourth (24th), thirty-sixth (36th), forty-eighth (48th)
and sixtieth (60th) Lease months during the Term.
ARTICLE V. USES
SECTION 5.1. USE. Tenant shall use the Premises only for the purposes
stated in Item 3 of the Basic Lease Provisions. The parties agree that any
contrary use shall be deemed to cause material and irreparable harm to Landlord
and shall entitle Landlord to injunctive relief in addition to any other
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available remedy. Tenant shall not do or permit anything to be done in or about
the Premises which will in any way interfere with the rights or quiet enjoyment
of other occupants of the Building or the Project, or use or allow the Premises
to be used for any unlawful purpose, nor shall Tenant permit any nuisance or
commit any waste in the Premises or the Project. Tenant shall not do or permit
to be done anything which will invalidate or increase the cost of any insurance
policy(ies) covering the Building, the Project and/or their contents, and shall
comply with all applicable insurance underwriters rules and the requirements of
the Pacific Fire Rating Bureau or any other organization performing a similar
function. Tenant shall comply at its expense with all present and future laws,
ordinances and requirements of all governmental authorities that pertain to
Tenant or its use of the Premises, including without limitation all federal and
state occupational health and safety and handicap access requirements, whether
or not Tenant's compliance will necessitate expenditures or interfere with its
use and enjoyment of the Premises. Tenant shall not generate, handle, store or
dispose of hazardous or toxic materials (as such materials may be identified in
any federal, state or local law or regulation) in the Premises or Project
without the prior written consent of Landlord; provided that the foregoing shall
not be deemed to proscribe the use by Tenant of customary office supplies in
normal quantities so long as such use comports with all applicable laws. Tenant
agrees that it shall promptly complete and deliver to Landlord any disclosure
form regarding hazardous or toxic materials that may be required by any
governmental agency. Tenant shall also, from time to time upon request by
Landlord, execute such affidavits concerning Tenant's best knowledge and belief
regarding the presence of hazardous or toxic materials in the Premises.
Landlord shall have the right at any time to perform an assessment of the
environmental condition of the Premises and of Tenant's compliance with this
Section. As part of any such assessment, Landlord shall have the right, upon
reasonable prior notice to Tenant, to enter and inspect the Premises and to
perform tests, provided those tests are performed in a manner that minimizes
disruption to Tenant. Tenant will cooperate with Landlord in connection with
any assessment by, among other things, promptly responding to inquiries and
providing relevant documentation and records. The reasonable cost of the
assessment/testing shall be reimbursed by Tenant to Landlord if such
assessment/testing determines that Tenant failed to comply with the requirements
of this Section. In all events Tenant shall indemnify Landlord in the manner
elsewhere provided in this Lease from any release of hazardous or toxic
materials caused by Tenant, its agents, employees, contractors, subtenants or
licensees. The foregoing covenants shall survive the expiration or earlier
termination of this Lease.
SECTION 5.2. SIGNS. Tenant, upon obtaining the approval of Landlord in
writing, may affix a sign (restricted solely to Tenant's name as set forth
herein or such other name as Landlord may consent to in writing) adjacent to the
entry door of the Premises and shall maintain the sign in good condition and
repair during the Term. The sign shall conform to the criteria for signs
established by Landlord and shall be ordered through Landlord. Tenant shall not
place or allow to be placed any other sign, decoration or advertising matter of
any kind that is visible from the exterior of the Premises. Any violating sign
or decoration may be immediately removed by Landlord at Tenant's expense without
notice and without the removal constituting a breach of this Lease or entitling
Tenant to claim damages.
SECTION 5.3. EXTERIOR SIGNAGE. Tenant shall have the right to install
a sign on the exterior of the Building in a location with visibility from the
I-680, which signage shall consist only of the name "NetRatings, Inc". The
type, location and design of such signage shall be subject to prior written
approval of Landlord (which shall not be unreasonably withheld) and the City
of Milpitas, and shall be subject to the signage criteria for the Project.
Fabrication, installation, insurance, and maintenance of such signage shall
be at Tenant's sole cost and expense. Except for the foregoing, no sign,
advertisement or notice visible from the exterior of the Premises shall be
inscribed, painted or affixed by Tenant on any part of the Premises without
the prior consent of Landlord. Tenant's signage right shall belong solely to
the original Tenant and may not be transferred or assigned (except in
connection with an assignment of this Lease to a Tenant Affiliate) without
Landlord's prior written consent, which may be withheld by Landlord in
Landlord's sole discretion. In the event Tenant, exclusive of any
subtenant(s), fails to occupy the entire Premises, then Tenant shall, within
thirty (30) days following notice from Landlord, remove the exterior signage
at Tenant's expense. Tenant shall also remove such signage promptly
following the expiration or earlier termination of this Lease. Any such
removal shall be at Tenant's sole expense, and Tenant shall bear the cost of
any resulting repairs to the Building that are reasonably necessary due to
the removal.
ARTICLE VI. LANDLORD SERVICES
SECTION 6.1. UTILITIES AND SERVICES. Landlord shall furnish to the
Premises the utilities and services described in Exhibit B, subject to the
conditions and payment obligations and standards set forth in this Lease.
Landlord shall not be liable for any failure to furnish any services or
utilities when the failure is the result of any accident or other cause beyond
Landlord's reasonable control, nor shall Landlord be liable for damages
resulting from power surges or any breakdown in telecommunications
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facilities or services. Landlord's temporary inability to furnish any
services or utilities shall not entitle Tenant to any damages, relieve Tenant
of the obligation to pay rent (except to the extent of rental interruption
insurance proceeds available to Landlord and reasonably allocable to this
Lease) or constitute a constructive or other eviction of Tenant, except that
Landlord shall diligently attempt to restore the service or utility promptly.
Tenant shall comply with all rules and regulations which Landlord may
reasonably establish for the provision of services and utilities, and shall
cooperate with all reasonable conservation practices established by Landlord.
Landlord shall at all reasonable times have free access to all electrical
and mechanical installations of Landlord.
SECTION 6.2. OPERATION AND MAINTENANCE OF COMMON AREAS. During the Term,
Landlord shall operate all Common Areas within the Building and the Project.
The term "Common Areas" shall mean all areas within the Building and other
buildings in the Project which are not held for exclusive use by persons
entitled to occupy space, and all other appurtenant areas and improvements
provided by Landlord for the common use of Landlord and tenants and their
respective employees and invitees, including without limitation parking areas
and structures, driveways, sidewalks, landscaped and planted areas, hallways and
interior stairwells not located within the premises of any tenant, common
entrances and lobbies, elevators, and restrooms not located within the premises
of any tenant.
SECTION 6.3. USE OF COMMON AREAS. The occupancy by Tenant of the
Premises shall include the use of the Common Areas in common with Landlord and
with all others for whose convenience and use the Common Areas may be provided
by Landlord, subject, however, to compliance with all rules and regulations as
are prescribed from time to time by Landlord. Landlord shall at all times
during the Term have exclusive control of the Common Areas, and may restrain any
use or occupancy, except as authorized by Landlord's rules and regulations.
Tenant shall keep the Common Areas clear of any obstruction or unauthorized use
related to Tenant's operations. Landlord may temporarily close any portion of
the Common Areas for repairs, remodeling and/or alterations, to prevent a public
dedication or the accrual of prescriptive rights, or for any other reasonable
purpose.
SECTION 6.4. PARKING. Landlord hereby leases to Tenant, and Tenant
hereby agrees to lease from Landlord for the Term of this Lease, the number of
vehicle parking spaces set forth in Item 12 of the Basic Lease Provisions. The
parking spaces shall be provided in accordance with the provisions set forth in
Exhibit C to this Lease.
SECTION 6.5. CHANGES AND ADDITIONS BY LANDLORD. Landlord reserves the
right to make alterations or additions to the Building or the Project, or to the
attendant fixtures, equipment and Common Areas. No change shall entitle Tenant
to any abatement of rent or other claim against Landlord, provided that the
change does not deprive Tenant of reasonable access to or use of the Premises.
ARTICLE VII. MAINTAINING THE PREMISES
SECTION 7.1. TENANT'S MAINTENANCE AND REPAIR. Tenant at its sole expense
shall make all repairs necessary to keep the interior of the Premises in the
condition as existed on the Commencement Date (or on any later date that the
improvements may have been installed), excepting ordinary wear and tear. All
repairs shall be at least equal in quality to the original work, shall be made
only by a licensed, bonded contractor approved in writing in advance by Landlord
and shall be made only at the time or times approved by Landlord. Any
contractor utilized by Tenant shall be subject to Landlord's standard
requirements for contractors, as modified from time to time. Landlord may
impose reasonable restrictions and requirements with respect to repairs, as
provided in Section 7.3, and the provisions of Section 7.4 shall apply to all
repairs. Alternatively, Landlord may elect to make any such repair on behalf of
Tenant and at Tenant's expense, and Tenant shall promptly reimburse Landlord as
additional rent for all costs incurred upon submission of an invoice.
SECTION 7.2. LANDLORD'S MAINTENANCE AND REPAIR.
(a) Subject to Section 7.1 and Article XI, Landlord shall provide
service, maintenance and repair with respect to any air conditioning,
ventilating or heating equipment which serves the Premises (exclusive of any
supplemental HVAC equipment installed by or at the request of Tenant) and shall
maintain in good repair the roof, foundations, footings, the exterior surfaces
of the exterior walls of the Building, and the structural, electrical and
mechanical systems, except that Tenant at its expense shall make all repairs
which Landlord deems reasonably necessary as a result of the negligence of
Tenant, its agents, employees, invitees, subtenants or contractors. Landlord
shall have the right to employ or designate any reputable person or firm,
including any employee or agent of Landlord or any of Landlord's affiliates or
divisions, to perform any service, repair or maintenance function. Landlord
need
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not make any other improvements or repairs except if specifically required
under this Lease or if caused by Landlord's gross negligence or willful
misconduct and not covered by Tenant's insurance, and nothing contained in
this Section shall limit Landlord's right to reimbursement from Tenant for
maintenance, repair costs and replacement costs as provided elsewhere in this
Lease. Tenant understands that it shall not make repairs at Landlord's
expense or by rental offset.
(b) Except as provided in Sections 11.1 and 12.1 below, but subject
to Section 10.5 below, there shall be no abatement of rent and, except for loss
or damage resulting from the gross negligence or willful misconduct of Landlord,
no liability of Landlord by reason of any injury to or interference with
Tenant's business arising from the making of any repairs, alterations or
improvements to any portion of the Building, including repairs to the Premises,
nor shall any related activity by Landlord constitute an actual or constructive
eviction; provided, however, that in making repairs, alterations or
improvements, Landlord shall interfere as little as reasonably practicable with
the conduct of Tenant's business in the Premises.
SECTION 7.3. ALTERATIONS. Tenant shall make no alterations, additions or
improvements to the Premises without the prior written consent of Landlord.
Landlord's consent shall not be unreasonably withheld as long as the proposed
changes do not affect the structural, electrical or mechanical components or
systems of the Building and are not visible from the exterior of the Premises.
Landlord may impose, as a condition to its consent, any requirements that
Landlord in its discretion may deem reasonable or desirable, including but not
limited to a requirement that all work be covered by a lien and completion bond
satisfactory to Landlord and requirements as to the manner, time, and contractor
for performance of the work. Without limiting the generality of the foregoing,
Tenant shall use Landlord's designated mechanical and electrical contractors for
all work affecting the mechanical or electrical systems of the Building,
provided that Tenant shall have the right to approve their changes before
commencing the work. Tenant shall obtain all required permits for the work and
shall perform the work in compliance with all applicable laws, regulations and
ordinances, and Landlord shall be entitled to a supervision fee in the amount of
five percent (5%) of the cost of the work. Under no circumstances shall Tenant
make any improvement which incorporates asbestos-containing construction
materials into the Premises. Any request for Landlord's consent shall be made
in writing and shall contain architectural plans describing the work in detail
reasonably satisfactory to Landlord. Unless Landlord otherwise agrees in
writing, all alterations, additions or improvements affixed to the Premises
(excluding moveable trade fixtures and furniture) shall become the property of
Landlord and shall be surrendered with the Premises at the end of the Term,
except that Landlord may, by written notice to Tenant given at the time of
Landlord's consent to the alteration or improvement, require Tenant to remove by
the Expiration Date, or sooner termination date of this Lease, all or any
alterations, decorations, fixtures, additions, improvements and the like
installed either by Tenant or by Landlord at Tenant's request and to repair any
damage to the Premises arising from that removal. Landlord may require Tenant
to remove an improvement provided as part of the initial build-out pursuant to
Exhibit X, if any, if and only if the improvement is a non-building standard
item and Tenant is notified in writing of the requirement prior to the
build-out. Except as otherwise provided in this Lease or in any Exhibit to this
Lease, should Landlord make any alteration or improvement to the Premises at the
request of Tenant, Landlord shall be entitled to prompt reimbursement from
Tenant for all costs incurred.
SECTION 7.4. MECHANIC'S LIENS. Tenant shall keep the Premises free from
any liens arising out of any work performed, materials furnished, or obligations
incurred by or for Tenant. Upon request by Landlord, Tenant shall promptly
cause any such lien to be released by posting a bond in accordance with
California Civil Code Section 3143 or any successor statute. In the event that
Tenant shall not, within thirty (30) days following the imposition of any lien,
cause the lien to be released of record by payment or posting of a proper bond,
Landlord shall have, in addition to all other available remedies, the right to
cause the lien to be released by any means it deems proper, including payment of
or defense against the claim giving rise to the lien. All expenses so incurred
by Landlord, including Landlord's attorneys' fees, shall be reimbursed by Tenant
promptly following Landlord's demand, together with interest from the date of
payment by Landlord at the maximum rate permitted by law until paid. Tenant
shall give Landlord no less than twenty (20) days' prior notice in writing
before commencing construction of any kind on the Premises so that Landlord may
post and maintain notices of nonresponsibility on the Premises.
SECTION 7.5. ENTRY AND INSPECTION. Landlord shall at all reasonable
times have the right to enter the Premises to inspect them, to supply services
in accordance with this Lease, to protect the interests of Landlord in the
Premises, to make repairs and renovations as reasonably deemed necessary by
Landlord, and to submit the Premises to prospective or actual purchasers or
encumbrance holders (or, during the last one hundred and eighty (180) days of
the Term or when an uncured Tenant default exists, to prospective tenants), all
without being deemed to have caused an eviction of Tenant and without abatement
of rent except as provided elsewhere in this Lease. Landlord shall at all times
have and retain a key which unlocks all of the doors in the Premises, excluding
Tenant's vaults and safes, and Landlord shall have the right to use any and all
means which Landlord may deem proper to open the doors in an emergency in order
to obtain entry to the Premises, and any entry to the Premises obtained by
Landlord shall not under any circumstances be deemed to be a forcible or
unlawful entry into, or a detainer of, the Premises, or any eviction of Tenant
from the Premises.
ARTICLE VIII. TAXES AND ASSESSMENTS ON TENANT'S PROPERTY
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Tenant shall be liable for and shall pay before delinquency, all taxes and
assessments levied against all personal property of Tenant located in the
Premises. When possible Tenant shall cause its personal property to be assessed
and billed separately from the real property of which the Premises form a part.
If any taxes on Tenant's personal property are levied against Landlord or
Landlord's property and if Landlord pays the same, or if the assessed value of
Landlord's property is increased by the inclusion of a value placed upon the
personal property of Tenant and if Landlord pays the taxes based upon the
increased assessment, Tenant shall pay to Landlord the taxes so levied against
Landlord or the proportion of the taxes resulting from the increase in the
assessment.
ARTICLE IX. ASSIGNMENT AND SUBLETTING
SECTION 9.1. RIGHTS OF PARTIES.
(a) Notwithstanding any provision of this Lease to the contrary,
Tenant will not, either voluntarily or by operation of law, assign, sublet,
encumber, or otherwise transfer all or any part of Tenant's interest in this
lease, or permit the Premises to be occupied by anyone other than Tenant,
without Landlord's prior written consent, which consent shall not unreasonably
be withheld in accordance with the provisions of Section 9.1.(c). No assignment
(whether voluntary, involuntary or by operation of law) and no subletting shall
be valid or effective without Landlord's prior written consent and, at
Landlord's election, shall constitute a material default of this Lease.
Landlord shall not be deemed to have given its consent to any assignment or
subletting by any other course of action, including its acceptance of any name
for listing in the Building directory. To the extent not prohibited by
provisions of the Bankruptcy Code, 11 U.S.C. Section 101 et seq. (the
"Bankruptcy Code"), including Section 365(f)(1), Tenant on behalf of itself and
its creditors, administrators and assigns waives the applicability of Section
365(e) of the Bankruptcy Code unless the proposed assignee of the Trustee for
the estate of the bankrupt meets Landlord's standard for consent as set forth in
Section 9.1(c) of this Lease. If this Lease is assigned to any person or entity
pursuant to the provisions of the Bankruptcy Code, any and all monies or other
considerations to be delivered in connection with the assignment shall be
delivered to Landlord, shall be and remain the exclusive property of Landlord
and shall not constitute property of Tenant or of the estate of Tenant within
the meaning of the Bankruptcy Code. Any person or entity to which this Lease is
assigned pursuant to the provisions of the Bankruptcy Code shall be deemed to
have assumed all of the obligations arising under this Lease on and after the
date of the assignment, and shall upon demand execute and deliver to Landlord
an instrument confirming that assumption.
(b) Notwithstanding any provision of Article IX or elsewhere in this
Lease to the contrary, Tenant shall have the right, without obtaining the prior
consent of Landlord but with prior written notice to Landlord, to (a) assign or
transfer all or any part of this Lease or to sublet all or any portion of the
Premises to (i) any parent corporation of Tenant, (ii) any subsidiary
corporation of Tenant or of Tenant's parent corporation, (iii) any entity in
which Tenant, any parent corporation of Tenant or any subsidiary corporation of
Tenant or of Tenant's parent corporation holds a majority of the outstanding
shares or ownership interests, or (iv) a corporation resulting from the merger,
consolidation or reorganization of Tenant or Tenant's parent corporation with
another corporation (any entity described in clauses (i) through (iv) above
being herein described as a "Tenant Affiliate"), (b) transfer or issue shares of
Tenant in connection with any "private placement" or other financing provided to
or investment made in Tenant, or (c) issue shares of Tenant on any national
securities exchange (as defined in the Securities Exchange Act of 1934, as
amended). In addition, the shareholders of Tenant shall have the right, without
obtaining the prior consent of Landlord, to transfer the shares of Tenant which
they hold to each other, to their immediate family members, or to any trust or
other estate planning vehicle, or to sell or trade the shares of Tenant on any
national securities exchange (as defined in the Securities Exchange Act of 1934,
as amended). Any and all of the transactions permitted under this Section shall
not constitute an assignment, subletting or other transaction requiring the
consent of Landlord under the provisions of Article IX of this Lease and shall
not be subject to any of the other provisions of Section 9.1 of this Lease.
(c) If Tenant desires to transfer an interest in this Lease, it shall
first notify Landlord of its desire and shall submit in writing to Landlord:
(i) the name and address of the proposed transferee; (ii) the nature of any
proposed subtenant's or assignee's business to be carried on in the Premises;
(iii) the terms and provisions of any proposed sublease or assignment; and (iv)
any other information requested by Landlord and reasonably related to the
transfer. Except as provided in Subsection (d) of this Section, Landlord shall
not unreasonably withhold its consent, provided: (1) the use of the Premises
will be consistent with the provisions of this Lease; (2) fifty percent (50%) of
any excess rent received by the Tenant from the assignment or subletting,
whether during or after the Term of this Lease, shall be paid to Landlord when
received after first deducting all out-of-pocket costs incurred by Tenant to
make the Premises ready for such assignee or subtenant (including without
limitation brokerage fees and reasonable attorneys' fees); (3) any proposed
subtenant or assignee demonstrates that it is financially responsible by
submission to Landlord of all reasonable information as Landlord may request
concerning the proposed subtenant or assignee, including, but not limited to, a
balance sheet of the proposed subtenant or assignee as of a date within ninety
(90) days of the request for Landlord's consent and statements of income or
profit and loss of the proposed subtenant or assignee for the two-year period
preceding the request for Landlord's consent; (4) the proposed assignee or
subtenant is neither an existing tenant of the Building or Project nor a
prospective tenant with whom Landlord is then actively negotiating; and (5) the
proposed transfer will not impose additional burdens or adverse tax effects on
Landlord. If
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Landlord consents to the proposed transfer, Tenant may within ninety (90)
days after the date of the consent effect the transfer upon the terms
described in the information furnished to Landlord; provided that any
material change in the terms shall be subject to Landlord's consent as set
forth in this Section. Landlord shall approve or disapprove any requested
transfer within ten (10) business days following receipt of Tenant's written
request and the information set forth above. Tenant shall pay to Landlord a
transfer fee of Five Hundred Dollars ($500.00) if and when any transfer
requested by Tenant is approved.
(d) Notwithstanding the provisions of Subsection (c) above, in lieu
of consenting to a proposed assignment or subletting other than as described in
Section 9.1(b) above, Landlord may elect to (i) sublease the Premises (or the
portion proposed to be subleased), or take an assignment of Tenant's interest in
this Lease, upon the same terms as offered to the proposed subtenant or assignee
(excluding terms relating to the purchase of personal property, the use of
Tenant's name or the continuation of Tenant's business), or (ii) terminate this
Lease as to the portion of the Premises proposed to be subleased or assigned
with a proportionate abatement in the rent payable under this Lease, effective
on the date that the proposed sublease or assignment would have become
effective. Landlord may thereafter, at its option, assign or re-let any space
so recaptured to any third party, including without limitation the proposed
transferee of Tenant.
SECTION 9.2. EFFECT OF TRANSFER. No subletting or assignment, even
with the consent of Landlord, shall relieve Tenant, or any
successor-in-interest to Tenant hereunder, of its obligation to pay rent and
to perform all its other obligations under this Lease. Moreover, Tenant
shall indemnify and hold Landlord harmless, as provided in Section 10.3, for
any negligent act or willful misconduct by an assignee or subtenant. Each
assignee, other than Landlord, shall be deemed to assume all obligations of
Tenant under this Lease and shall be liable jointly and severally with Tenant
for the payment of all rent, and for the due performance of all of Tenant's
obligations, under this Lease. Such joint and several liability shall not be
discharged or impaired by any subsequent modification or extension of this
Lease; provided, however, that any predecessor Tenant hereunder shall not be
liable for any marginal increase in leasehold obligations resulting from the
modification or extension unless attributable to Tenant's exercise of a
pre-existing option or right in this Lease. Except as provided in Section
9.1(b), no transfer shall be binding on Landlord unless any document
memorializing the transfer is delivered to Landlord and both the
assignee/subtenant and Tenant deliver to Landlord an executed consent to
transfer instrument prepared by Landlord and consistent with the requirements
of this Article. The acceptance by Landlord of any payment due under this
Lease from any other person shall not be deemed to be a waiver by Landlord of
any provision of this Lease or to be a consent to any transfer. Consent by
Landlord to one or more transfers shall not operate as a waiver or estoppel
to the future enforcement by Landlord of its rights under this Lease. In
addition to the foregoing, no change in the status of Tenant or any party
jointly and severally liable with Tenant as aforesaid (e.g., by conversion to
a limited liability company or partnership) shall serve to abrogate the
liability of any person or entity for the obligations of Tenant, including
any obligations that may be incurred by Tenant after the status change by
exercise of a pre-existing right in this Lease.
SECTION 9.3. SUBLEASE REQUIREMENTS. The following terms and conditions
shall apply to any subletting by Tenant of all or any part of the Premises and
shall be included in each sublease:
(a) Tenant hereby irrevocably assigns to Landlord all of Tenant's
interest in all rentals and income arising from any sublease of the Premises,
and Landlord may collect such rent and income and apply same toward Tenant's
obligations under this Lease; provided, however, that until a default occurs in
the performance of Tenant's obligations under this Lease, Tenant shall have the
right to receive and collect the sublease rentals. Landlord shall not, by
reason of this assignment or the collection of sublease rentals, be deemed
liable to the subtenant for the performance of any of Tenant's obligations under
the sublease. Tenant hereby irrevocably authorizes and directs any subtenant,
upon receipt of a written notice from Landlord stating that an uncured default
exists in the performance of Tenant's obligations under this Lease, to pay to
Landlord all sums then and thereafter due under the sublease. Tenant agrees
that the subtenant may rely on that notice without any duty of further inquiry
and notwithstanding any notice or claim by Tenant to the contrary. Tenant shall
have no right or claim against the subtenant or Landlord for any rentals so paid
to Landlord. In the event Landlord collects amounts from subtenants that exceed
the total amount then due from Tenant hereunder, Landlord shall promptly remit
the excess to Tenant.
(b) In the event of the termination of this Lease, Landlord may, at
its sole option, take over Tenant's entire interest in any sublease and, upon
notice from Landlord, the subtenant shall attorn to Landlord. In no event,
however, shall Landlord be liable for any previous act or omission by Tenant
under the sublease or for the return of any advance rental payments or deposits
under the sublease that have not been actually delivered to Landlord, nor shall
Landlord be bound by any sublease modification executed without Landlord's
consent or for any advance rental payment by the subtenant in excess of one
month's rent. The general provisions of this Lease, including without
limitation those pertaining to insurance and indemnification, shall be deemed
incorporated by reference into the sublease despite the termination of this
Lease.
(c) Tenant agrees that Landlord may, at its sole option, authorize a
subtenant of the Premises to cure a default by Tenant under this Lease. Should
Landlord accept such cure, the subtenant shall have a right of reimbursement and
offset from and against Tenant under the applicable sublease.
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ARTICLE X. INSURANCE AND INDEMNITY
SECTION 10.1. TENANT'S INSURANCE. Tenant, at its sole cost and expense,
shall provide and maintain in effect the insurance described in Exhibit D.
Evidence of that insurance must be delivered to Landlord prior to the
Commencement Date.
SECTION 10.2. LANDLORD'S INSURANCE. Landlord shall provide any or all of
the following types of insurance, with or without deductible and in amounts and
coverages as may be determined by Landlord in its discretion: "all risk"
property insurance, subject to standard exclusions, covering the Building or
Project, and such other risks as Landlord or its mortgagees may from time to
time deem appropriate, and commercial general liability coverage. Landlord
shall not be required to carry insurance of any kind on Tenant's leasehold
improvements, trade fixtures, furnishings, equipment, interior plate glass,
signs and all other items of personal property, and shall not be obligated to
repair or replace that property should damage occur. All proceeds of insurance
maintained by Landlord upon the Building and Project shall be the property of
Landlord, whether or not Landlord is obligated to or elects to make any repairs.
SECTION 10.3. TENANT'S INDEMNITY. To the fullest extent permitted by law,
Tenant shall defend, indemnify and hold harmless Landlord, its agents, lenders,
and any and all affiliates of Landlord, from and against any and all claims,
liabilities, costs or expenses arising either before or after the Commencement
Date from Tenant's use or occupancy of the Premises, the Building or the Common
Areas, or from the conduct of its business, or from any activity, work, or thing
done, permitted or suffered by Tenant or its agents, employees, subtenants,
invitees or licensees in or about the Premises, the Building or the Common
Areas, or from any default in the performance of any obligation on Tenant's part
to be performed under this Lease, or from any negligence or willful misconduct
of Tenant or its agents, employees, subtenants, invitees or licensees. Landlord
may, at its option, require Tenant to assume Landlord's defense in any action
covered by this Section through counsel reasonably satisfactory to Landlord.
SECTION 10.4. LANDLORD'S NONLIABILITY. Landlord shall not be liable to
Tenant, its employees, agents and invitees, and Tenant hereby waives all claims
against Landlord, its employees and agents for loss of or damage to any
property, or any injury to any person, or loss or interruption of business or
income, resulting from any condition including, but not limited to, fire,
explosion, falling plaster, steam, gas, electricity, 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, electrical works or other fixtures in
the Building, whether the damage or injury results from conditions arising in
the Premises or in other portions of the Building, unless caused by Landlord's
gross negligence or willful misconduct and not covered by Tenant's insurance.
It is understood that any such condition may require the temporary evacuation or
closure of all or a portion of the Building. Should Tenant elect to receive any
service from a concessionaire, licensee or third party tenant of Landlord,
Tenant shall not seek recourse against Landlord for any breach or liability of
that service provider. Neither Landlord nor its agents shall be liable for
interference with light or other similar intangible interests. Tenant shall
immediately notify Landlord in case of fire or accident in the Premises, the
Building or the Project and of defects in any improvements or equipment.
SECTION 10.5. WAIVER OF SUBROGATION. Tenant and Landlord each hereby
waives any and all rights of recovery against the other, and against the
officers, employees, agents and representatives of the other, for loss of or
damage to the property of the waiving party or the property of others under its
control, to the extent such loss or damage is covered by proceeds for such
damage received under any insurance policy carried by the waiving party and in
force at the time of such loss or damage. Tenant and Landlord shall, upon
obtaining the policies of insurance required hereunder, give notice to the
insurance carrier or carriers that the foregoing mutual waiver of subrogation is
contained in this Lease.
ARTICLE XI. DAMAGE OR DESTRUCTION
SECTION 11.1. RESTORATION.
(a) If the Building of which the Premises are a part is damaged as
the result of an event of casualty, Landlord shall repair that damage as soon as
reasonably possible unless: (i) Landlord reasonably determines that the cost of
repair would exceed ten percent (10%) of the full replacement cost of the
Building ("Replacement Cost") and the damage is not covered by Landlord's fire
and extended coverage insurance (or by a normal extended coverage policy should
Landlord fail to carry that insurance); or (ii) Landlord reasonably determines
that the cost of repair would exceed twenty-five percent (25%) of the
Replacement Cost; or (iii) Landlord reasonably determines that the cost of
repair would exceed ten percent (10%) of the Replacement Cost and the damage
occurs during the final twelve (12) months of the Term. Should Landlord elect
not to repair the damage for one of the preceding reasons, Landlord shall so
notify Tenant in the "Casualty Notice" (as defined below), and this Lease shall
terminate as of the date of delivery of that notice.
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(b) As soon as reasonably practicable following the casualty event
but not later than sixty (60) days thereafter, Landlord shall notify Tenant in
writing ("Casualty Notice") of Landlord's election, if applicable, to terminate
this Lease. If this Lease is not so terminated, the Casualty Notice shall set
forth the anticipated period for repairing the casualty damage. If the
anticipated repair period exceeds one hundred eighty (180) days and if the
damage is so extensive as to reasonably prevent Tenant's substantial use and
enjoyment of the Premises, then Tenant may elect to terminate this Lease by
written notice to Landlord within fifteen (15) days following delivery of the
Casualty Notice.
(c) Commencing as of the sixth (6th) business day following the
casualty event, the rental to be paid under this Lease shall be abated in the
same proportion that the floor area of the Premises that is rendered unusable by
the damage from time to time bears to the total floor area of the Premises.
(d) Notwithstanding the provisions of subsections (a), (b) and (c) of
this Section, but subject to Section 10.5, the cost of any repairs shall be
borne by Tenant, and Tenant shall not be entitled to rental abatement or
termination rights, if the damage is due to the negligence or willful misconduct
of Tenant or its employees, subtenants, invitees or representatives. In
addition, the provisions of this Section shall not be deemed to require Landlord
to repair any improvements or fixtures that Tenant is obligated to repair or
insure pursuant to any other provision of this Lease.
SECTION 11.2. LEASE GOVERNS. Tenant agrees that the provisions of this
Lease, including without limitation Section 11.1, shall govern any damage or
destruction and shall accordingly supersede any contrary statute or rule of law.
ARTICLE XII. EMINENT DOMAIN
SECTION 12.1. TOTAL OR PARTIAL TAKING. If all or a material portion of
the Premises is taken by any lawful authority by exercise of the right of
eminent domain, or sold to prevent a taking, either Tenant or Landlord may
terminate this Lease effective as of the date possession is required to be
surrendered to the authority. In the event title to a portion of the Building
or Project, other than the Premises, is taken or sold in lieu of taking, and if
Landlord elects to restore the Building in such a way as to alter the Premises
materially, either party may terminate this Lease, by written notice to the
other party, effective on the date of vesting of title. In the event neither
party has elected to terminate this Lease as provided above, then Landlord shall
promptly, after receipt of a sufficient condemnation award, proceed to restore
the Premises to substantially their condition prior to the taking, and a
proportionate allowance shall be made to Tenant for the rent corresponding to
the time during which, and to the part of the Premises of which, Tenant is
deprived on account of the taking and restoration. In the event of a taking,
Landlord shall be entitled to the entire amount of the condemnation award
without deduction for any estate or interest of Tenant; provided that nothing in
this Section shall be deemed to give Landlord any interest in, or prevent Tenant
from seeking any award against the taking authority for, the taking of personal
property and fixtures belonging to Tenant or for relocation or business
interruption expenses recoverable from the taking authority.
SECTION 12.2. TEMPORARY TAKING. No temporary taking of the Premises shall
terminate this Lease or give Tenant any right to abatement of rent, and any
award specifically attributable to a temporary taking of the Premises shall
belong entirely to Tenant. A temporary taking shall be deemed to be a taking of
the use or occupancy of the Premises for a period of not to exceed ninety (90)
days.
SECTION 12.3. TAKING OF PARKING AREA. In the event there shall be a
taking of the parking area such that Landlord can no longer provide sufficient
parking to comply with this Lease, Landlord may substitute reasonably equivalent
parking in a location reasonably close to the Building; provided that if
Landlord fails to make that substitution within ninety (90) days following the
taking and if the taking materially impairs Tenant's use and enjoyment of the
Premises, Tenant may, at its option, terminate this Lease by written notice to
Landlord. If this Lease is not so terminated by Tenant, there shall be no
abatement of rent and this Lease shall continue in effect.
ARTICLE XIII. SUBORDINATION; ESTOPPEL CERTIFICATE
SECTION 13.1. SUBORDINATION. At the option of Landlord or any of its
mortgagees/deed of trust beneficiaries, this Lease shall be either superior or
subordinate to all ground or underlying leases, mortgages and deeds of trust, if
any, which may hereafter affect the Building, and to all renewals,
modifications, consolidations, replacements and extensions thereof; provided,
that so long as Tenant is not in default under this Lease, this Lease shall not
be terminated or Tenant's quiet enjoyment of the Premises disturbed in the event
of termination of any such ground or underlying lease, or the foreclosure of any
such mortgage or deed of trust, to which Tenant has subordinated this Lease
pursuant to this Section. It is understood that Tenant may condition its
execution of any subordination agreement upon its receipt of a commercially
reasonable non-disturbance covenant. In the event of a termination or
foreclosure, Tenant shall become a tenant of and attorn to the
successor-in-interest to Landlord upon the same terms and conditions as are
contained in this Lease, and shall promptly execute any instrument reasonably
required by Landlord's successor for that purpose. Tenant shall also, within
ten (10) days
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following written request of Landlord (or the beneficiary under any deed of
trust encumbering the Building), execute and deliver all instruments as may
be required from time to time by Landlord or such beneficiary (including
without limitation any subordination, nondisturbance and attornment agreement
in commercially reasonable form) to subordinate this Lease and the rights of
Tenant under this Lease to any ground or underlying lease or to the lien of
any mortgage or deed of trust; provided, however, that any such beneficiary
may, by written notice to Tenant given at any time, subordinate the lien of
its deed of trust to this Lease. Tenant acknowledges that Landlord's
mortgagees and successors-in-interest and all beneficiaries under deeds of
trust encumbering the Building are intended third party beneficiaries of this
Section.
SECTION 13.2. ESTOPPEL CERTIFICATE. Tenant shall, at any time upon not
less than thirty (30) days prior written notice from Landlord, execute,
acknowledge and deliver to Landlord, in any form that Landlord may reasonably
require, a statement in writing in favor of Landlord and/or any prospective
purchaser or encumbrancer of the Building (i) certifying that this Lease is
unmodified and in full force and effect (or, if modified, stating the nature of
the modification and certifying that this Lease, as modified, is in full force
and effect) and the dates to which the rental, additional rent and other charges
have been paid in advance, if any, and (ii) acknowledging that, to Tenant's
knowledge, there are no uncured defaults on the part of Landlord, or specifying
each default if any are claimed, and (iii) setting forth all further information
that Landlord may reasonably require. Tenant's statement may be relied upon by
any prospective purchaser or encumbrancer of all or any portion of the Building
or Project. Tenant's failure to deliver any estoppel statement within the
provided time shall constitute a default under this Lease and shall be
conclusive upon Tenant that (i) this Lease is in full force and effect, without
modification except as may be represented by Landlord, (ii) there are no uncured
defaults in Landlord's performance, and (iii) not more than one month's rental
has been paid in advance.
ARTICLE XIV. DEFAULTS AND REMEDIES
SECTION 14.1. TENANT'S DEFAULTS. In addition to any other event of
default set forth in this Lease, the occurrence of any one or more of the
following events shall constitute a default by Tenant:
(a) The failure by Tenant to make any payment of rent or additional
rent required to be made by Tenant, as and when due, where the failure continues
for a period of five (5) days after written notice from Landlord to Tenant;
provided, however, that any such notice shall be in lieu of, and not in addition
to, any notice required under California Code of Civil Procedure Section 1161
and 1161(a) as amended. For purposes of these default and remedies provisions,
the term "additional rent" shall be deemed to include all amounts of any type
whatsoever other than Basic Rent to be paid by Tenant pursuant to the terms of
this Lease.
(b) Assignment, sublease, encumbrance or other transfer of the Lease
by Tenant, either voluntarily or by operation of law, whether by judgment,
execution, transfer by intestacy or testacy, or other means, without the prior
written consent of Landlord except as permitted under this Lease.
(c) The discovery by Landlord that any financial statement provided
by Tenant, or by any affiliate, successor or guarantor of Tenant, was materially
false.
(d) The failure or inability by Tenant to observe or perform any of
the covenants or provisions of this Lease to be observed or performed by
Tenant, other than as specified in any other subsection of this Section, where
the failure continues for a period of thirty (30) days after written notice from
Landlord to Tenant; provided, however, that any such notice shall be in lieu of,
and not in addition to, any notice required under California Code of Civil
Procedure Section 1161 and 1161(a) as amended. However, if the nature of the
failure is such that more than thirty (30) days are reasonably required for its
cure, then Tenant shall not be deemed to be in default if Tenant commences the
cure within thirty (30) days, and thereafter diligently pursues the cure to
completion.
(e) (i) The making by Tenant of any general assignment for the
benefit of creditors; (ii) the filing by or against Tenant of a petition to have
Tenant adjudged a Chapter 7 debtor under the Bankruptcy Code or to have debts
discharged or a petition for reorganization or arrangement under any law
relating to bankruptcy (unless, in the case of a petition filed against Tenant,
the same is dismissed within sixty (60) days); (iii) the appointment of a
trustee or receiver to take possession of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease, if possession is
not restored to Tenant within thirty (30) days; (iv) the attachment, execution
or other judicial seizure of substantially all of Tenant's assets located at the
Premises or of Tenant's interest in this Lease, where the seizure is not
discharged within thirty (30) days; or (v) Tenant's convening of a meeting of
its creditors for the purpose of effecting a moratorium upon or composition of
its debts. Landlord shall not be deemed to have knowledge of any event
described in this subsection unless notification in writing is received by
Landlord, nor shall there be any presumption attributable to Landlord of
Tenant's insolvency. In the event that any provision of this subsection is
contrary to applicable law, the provision shall be of no force or effect.
SECTION 14.2. LANDLORD'S REMEDIES.
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(a) In the event of any default by Tenant, then in addition to any
other remedies available to Landlord, Landlord may exercise the following
remedies:
(i) Landlord may terminate Tenant's right to possession of
the Premises by any lawful means, in which case this Lease shall terminate
and Tenant shall immediately surrender possession of the Premises to
Landlord. Such termination shall not affect any accrued obligations of
Tenant under this Lease. Upon termination, Landlord shall have the right to
reenter the Premises and remove all persons and property. Landlord shall
also be entitled to recover from Tenant:
(1) The worth at the time of award of the unpaid rent and
additional rent which had been earned at the time of termination;
(2) The worth at the time of award of the amount by which
the unpaid rent and additional rent which would have been earned after
termination until the time of award exceeds the amount of such loss that Tenant
proves could have been reasonably avoided;
(3) The worth at the time of award of the amount by which
the unpaid rent and additional rent for the balance of the Term after the time
of award exceeds the amount of such loss that Tenant proves could be reasonably
avoided;
(4) 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 course of things would be
likely to result from Tenant's default, including, but not limited to, the cost
of recovering possession of the Premises, commissions and other expenses of
reletting, including necessary repair, renovation, improvement and alteration of
the Premises for a new tenant, the unamortized portion of any tenant
improvements and brokerage commissions funded by Landlord in connection with
this Lease, reasonable attorneys' fees, and any other reasonable costs; and
(5) At Landlord's election, all other amounts in addition
to or in lieu of the foregoing as may be permitted by law. The term "rent" as
used in this Lease shall be deemed to mean the Basic Rent and all other sums
required to be paid by Tenant to Landlord pursuant to the terms of this Lease.
Any sum, other than Basic Rent, shall be computed on the basis of the average
monthly amount accruing during the twenty-four (24) month period immediately
prior to default, except that if it becomes necessary to compute such rental
before the twenty-four (24) month period has occurred, then the computation
shall be on the basis of the average monthly amount during the shorter period.
As used in subparagraphs (1) and (2) above, the "worth at the time of award"
shall be computed by allowing interest at the rate of ten percent (10%) per
annum. As used in subparagraph (3) above, the "worth at the time of award"
shall be computed by discounting the amount at the discount rate of the Federal
Reserve Bank of San Francisco at the time of award plus one percent (1%).
(ii) Landlord may elect not to terminate Tenant's right to
possession of the Premises, in which event Landlord may continue to enforce all
of its rights and remedies under this Lease, including the right to collect all
rent as it becomes due. Efforts by the Landlord to maintain, preserve or relet
the Premises, or the appointment of a receiver to protect the Landlord's
interests under this Lease, shall not constitute a termination of the Tenant's
right to possession of the Premises. In the event that Landlord elects to avail
itself of the remedy provided by this subsection (ii), Landlord shall not
unreasonably withhold its consent to an assignment or subletting of the Premises
subject to the reasonable standards for Landlord's consent as are contained in
this Lease.
(b) The various rights and remedies reserved to Landlord in this
Lease or otherwise shall be cumulative and, except as otherwise provided by
California law, Landlord may pursue any or all of its rights and remedies at the
same time. No delay or omission of Landlord to exercise any right or remedy
shall be construed as a waiver of the right or remedy or of any default by
Tenant. The acceptance by Landlord of rent shall not be a (i) waiver of any
preceding breach or default by Tenant of any provision of this Lease, other than
the failure of Tenant to pay the particular rent accepted, regardless of
Landlord's knowledge of the preceding breach or default at the time of
acceptance of rent, or (ii) a waiver of Landlord's right to exercise any remedy
available to Landlord by virtue of the breach or default. The acceptance of any
payment from a debtor in possession, a trustee, a receiver or any other person
acting on behalf of Tenant or Tenant's estate shall not waive or cure a default
under Section 14.1. No payment by Tenant or receipt by Landlord of a lesser
amount than the rent required by this Lease shall be deemed to be other than a
partial payment on account of the earliest due stipulated rent, nor shall any
endorsement or statement on any check or letter be deemed an accord and
satisfaction and Landlord shall accept the check or payment without prejudice to
Landlord's right to recover the balance of the rent or pursue any other remedy
available to it. No act or thing done by Landlord or Landlord's agents during
the Term shall be deemed an acceptance of a surrender of the Premises, and no
agreement to accept a surrender shall be valid unless in writing and signed by
Landlord. No employee of Landlord or of Landlord's agents shall have any power
to accept the keys to the Premises prior to the termination of this Lease, and
the delivery of the keys to any employee shall not operate as a termination of
the Lease or a surrender of the Premises.
SECTION 14.3. LATE PAYMENTS.
(a) Any rent due under this Lease that is not paid to Landlord within
five (5) days of the date when due and after notice from Landlord shall bear
interest at ten percent (10%) per annum
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from the date due until fully paid. The payment of interest shall not cure
any default by Tenant under this Lease. In addition, Tenant acknowledges
that the late payment by Tenant to Landlord of rent will cause Landlord to
incur costs not contemplated by this Lease, the exact amount of which will be
extremely difficult and impracticable to ascertain. Those costs may include,
but are not limited to, administrative, processing and accounting charges,
and late charges which may be imposed on Landlord by the terms of any ground
lease, mortgage or trust deed covering the Premises. Accordingly, if any
rent due from Tenant shall not be received by Landlord or Landlord's designee
within five (5) days after the date due, then Tenant shall pay to Landlord,
in addition to the interest provided above, a late charge in the amount of
one hundred dollars ($100.00) for each delinquent payment. Acceptance of a
late charge by Landlord shall not constitute a waiver of Tenant's default
with respect to the overdue amount, nor shall it prevent Landlord from
exercising any of its other rights and remedies.
(b) Following each second consecutive installment of rent that is not
paid within five (5) days following notice of nonpayment from Landlord, Landlord
shall have the option to require that beginning with the first payment of rent
next due, rent shall no longer be paid in monthly installments but shall be
payable quarterly three (3) months in advance. Should Tenant deliver to
Landlord, at any time during the Term, two (2) or more insufficient checks, the
Landlord may require that all monies then and thereafter due from Tenant be paid
to Landlord by cashier's check.
SECTION 14.4. RIGHT OF LANDLORD TO PERFORM. All covenants and agreements
to be performed by Tenant under this Lease shall be performed at Tenant's sole
cost and expense (except as otherwise provided hereunder) and without any
abatement of rent or right of set-off. If Tenant fails to pay any sum of money,
or fails to perform any other act on its part to be performed under this Lease,
and the failure continues beyond any applicable grace period set forth in
Section 14.1, then in addition to any other available remedies, Landlord may, at
its election make the payment or perform the other act on Tenant's part.
Landlord's election to make the payment or perform the act on Tenant's part
shall not give rise to any responsibility of Landlord to continue making the
same or similar payments or performing the same or similar acts. Tenant shall,
promptly upon demand by Landlord, reimburse Landlord for all sums paid by
Landlord and all necessary incidental costs, together with interest at the
maximum rate permitted by law from the date of the payment by Landlord.
SECTION 14.5. DEFAULT BY LANDLORD. Landlord shall not be deemed to be in
default in the performance of any obligation under this Lease unless and until
it has failed to perform the obligation within thirty (30) days after written
notice by Tenant to Landlord specifying in reasonable detail the nature and
extent of the failure; provided, however, that 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 deemed to be in default if it commences
performance within the thirty (30) day period and thereafter diligently pursues
the cure to completion.
SECTION 14.6. EXPENSES AND LEGAL FEES. Should either Landlord or Tenant
bring any action in connection with this Lease, the prevailing party shall be
entitled to recover as a part of the action its reasonable attorneys' fees, and
all other costs. The prevailing party for the purpose of this paragraph shall
be determined by the trier of the facts.
SECTION 14.7. WAIVER OF JURY TRIAL/RIGHT TO ARBITRATE.
(a) LANDLORD AND TENANT EACH ACKNOWLEDGES THAT IT IS AWARE OF AND HAS
HAD THE ADVICE OF COUNSEL OF ITS CHOICE WITH RESPECT TO ITS RIGHT TO TRIAL BY
JURY, AND EACH PARTY DOES HEREBY EXPRESSLY AND KNOWINGLY WAIVE AND RELEASE ALL
SUCH RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT
BY EITHER PARTY HERETO AGAINST THE OTHER (AND/OR AGAINST ITS OFFICERS,
DIRECTORS, EMPLOYEES, AGENTS, OR SUBSIDIARY OR AFFILIATED ENTITIES) ON ANY
MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE,
TENANT'S USE OR OCCUPANCY OF THE PREMISES, AND/OR ANY CLAIM OF INJURY OR DAMAGE.
(b) SHOULD A DISPUTE ARISE BETWEEN THE PARTIES REGARDING ANY MATTER
DESCRIBED ABOVE, THEN EXCEPT WITH RESPECT TO ACTIONS FOR UNLAWFUL OR FORCIBLE
DETAINER EITHER PARTY MAY CAUSE THE DISPUTE TO BE SUBMITTED TO JAMS/ENDISPUTE OR
ITS SUCCESSOR ("JAMS") IN THE COUNTY IN WHICH THE BUILDING IS SITUATED FOR
BINDING ARBITRATION BEFORE A SINGLE ARBITRATOR. HOWEVER, EACH PARTY RESERVES
THE RIGHT TO SEEK A PROVISIONAL REMEDY BY JUDICIAL ACTION. NO ARBITRATION
ELECTION BY EITHER PARTY PURSUANT TO THIS SUBSECTION SHALL BE EFFECTIVE IF MADE
LATER THAN THIRTY (30) DAYS FOLLOWING SERVICE OF A JUDICIAL SUMMONS AND
COMPLAINT BY OR UPON SUCH PARTY CONCERNING THE DISPUTE. THE ARBITRATION SHALL
BE CONDUCTED IN ACCORDANCE WITH THE RULES OF PRACTICE AND PROCEDURE OF JAMS AND
OTHERWISE PURSUANT TO THE CALIFORNIA ARBITRATION ACT (CODE OF CIVIL PROCEDURE
SECTIONS 1280 ET SEQ.). NOTWITHSTANDING THE FOREGOING, THE ARBITRATOR IS
SPECIFICALLY DIRECTED TO LIMIT DISCOVERY TO THAT WHICH IS ESSENTIAL TO THE
EFFECTIVE PROSECUTION OR DEFENSE OF THE ACTION, AND IN NO EVENT SHALL SUCH
DISCOVERY BY EITHER PARTY INCLUDE MORE THAN ONE NON-EXPERT WITNESS DEPOSITION
UNLESS BOTH PARTIES OTHERWISE AGREE. THE ARBITRATOR SHALL APPORTION THE COSTS
OF THE ARBITRATION, TOGETHER WITH THE ATTORNEYS' FEES OF THE PARTIES, IN THE
MANNER DEEMED EQUITABLE BY THE ARBITRATOR, IT BEING THE
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INTENTION OF THE PARTIES THAT THE PREVAILING PARTY ORDINARILY BE ENTITLED TO
RECOVER ITS REASONABLE COSTS AND FEES. JUDGMENT UPON ANY AWARD RENDERED BY
THE ARBITRATOR MAY BE ENTERED BY ANY COURT HAVING JURISDICTION.
ARTICLE XV. END OF TERM
SECTION 15.1. HOLDING OVER. This Lease shall terminate without further
notice upon the expiration of the Term, and any holding over by Tenant after the
expiration shall not constitute a renewal or extension of this Lease, or give
Tenant any rights under this Lease, except when in writing signed by both
parties. If Tenant holds over for any period after the expiration (or earlier
termination) of the Term, Landlord may, at its option, treat Tenant as a tenant
at sufferance only, commencing on the first (1st) day following the termination
of this Lease. Any hold-over by Tenant shall be subject to all of the terms of
this Lease, except that the monthly rental shall be one hundred fifty percent
(150%) of the total monthly rental for the month immediately preceding the date
of termination, subject to Landlord's right to modify same upon thirty (30) days
notice to Tenant. If Tenant fails to surrender the Premises upon the expiration
of this Lease despite demand to do so by Landlord, Tenant shall indemnify and
hold Landlord harmless from all loss or liability, including without limitation,
any claims made by any succeeding tenant relating to such failure to surrender.
Acceptance by Landlord of rent after the termination shall not constitute a
consent to a holdover or result in a renewal of this Lease. The foregoing
provisions of this Section are in addition to and do not affect Landlord's right
of re-entry or any other rights of Landlord under this Lease or at law.
SECTION 15.2. MERGER ON TERMINATION. The voluntary or other surrender of
this Lease by Tenant, or a mutual termination of this Lease, shall terminate any
or all existing subleases unless Landlord, at its option, elects in writing to
treat the surrender or termination as an assignment to it of any or all
subleases affecting the Premises.
SECTION 15.3. SURRENDER OF PREMISES; REMOVAL OF PROPERTY. Upon the
Expiration Date or upon any earlier termination of this Lease, Tenant shall quit
and surrender possession of the Premises to Landlord in as good order, condition
and repair as when received or as hereafter may be improved by Landlord or
Tenant, reasonable wear and tear and repairs which are Landlord's obligation
excepted, and shall, without expense to Landlord and unless otherwise provided
herein or in the work Letter, remove or cause to be removed all wallpapering and
voice and/or data transmission cabling installed by or for Tenant, together with
all personal property and debris, except for any items that Landlord may by
written authorization allow to remain. Tenant shall repair all damage to the
Premises resulting from the removal, which repair shall include the patching and
filling of holes and repair of structural damage. If Tenant shall fail to
comply with the provisions of this Section, Landlord may effect the removal
and/or make any repairs, and the cost to Landlord shall be additional rent
payable by Tenant upon demand. If requested by Landlord, Tenant shall execute,
acknowledge and deliver to Landlord an instrument in writing releasing and
quitclaiming to Landlord all right, title and interest of Tenant in the
Premises.
ARTICLE XVI. PAYMENTS AND NOTICES
All sums payable by Tenant to Landlord shall be paid, without deduction or
offset, in lawful money of the United States to Landlord at its address set
forth in Item 13 of the Basic Lease Provisions, or at any other place as
Landlord may designate in writing. Unless this Lease expressly provides
otherwise, as for example in the payment of rent pursuant to Section 4.1, all
payments shall be due and payable within five (5) days after demand. All
payments requiring proration shall be prorated on the basis of a thirty (30) day
month and a three hundred sixty (360) day year. Any notice, election, demand,
consent, approval or other communication to be given or other document to be
delivered by either party to the other may be delivered to the other party, at
the address set forth in Item 13 of the Basic Lease Provisions, by personal
service or telegram, telecopier, or electronic facsimile transmission, or by any
courier or "overnight" express mailing service, or may be deposited in the
United States mail, postage prepaid. Either party may, by written notice to
the other, served in the manner provided in this Article, designate a different
address. If any notice or other document is sent by mail, it shall be deemed
served or delivered three (3) business days after mailing or, if sooner, upon
actual receipt. If more than one person or entity is named as Tenant under this
Lease, service of any notice upon any one of them shall be deemed as service
upon all of them.
ARTICLE XVII. RULES AND REGULATIONS
Tenant agrees to comply with the Rules and Regulations attached as Exhibit
E, and any reasonable and nondiscriminatory amendments, modifications and/or
additions as may be adopted and published by written notice to tenants by
Landlord for the safety, care, security, good order, or cleanliness of the
Premises, Building, Project and/or Common Areas. Landlord shall not be liable
to Tenant for any violation of the Rules and Regulations or the breach of any
covenant or condition in any lease or any other act or conduct by any other
tenant, and the same shall not constitute a constructive eviction hereunder.
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One or more waivers by Landlord of any breach of the Rules and Regulations by
Tenant or by any other tenant(s) shall not be a waiver of any subsequent breach
of that rule or any other. Tenant's failure to keep and observe the Rules and
Regulations shall constitute a default under this Lease. In the case of any
conflict between the Rules and Regulations and this Lease, this Lease shall be
controlling.
ARTICLE XVIII. BROKER'S COMMISSION
The parties recognize as the broker(s) who negotiated this Lease the
firm(s), if any, whose name(s) is (are) stated in Item 10 of the Basic Lease
Provisions, and agree that Landlord shall be responsible for the payment of
brokerage commissions to those broker(s) unless otherwise provided in this
Lease. Each party warrants that it has had no dealings with any other real
estate broker or agent in connection with the negotiation of this Lease, and
agrees to indemnify and hold the other party harmless from any cost, expense or
liability (including reasonable attorneys' fees) for any compensation,
commissions or charges claimed by any other real estate broker or agent employed
or claiming to represent or to have been employed by the indemnifying party in
connection with the negotiation of this Lease. The foregoing agreement shall
survive the termination of this Lease.
ARTICLE XIX. TRANSFER OF LANDLORD'S INTEREST
In the event of any transfer of Landlord's interest in the Premises, the
transferor shall be automatically relieved of all obligations on the part of
Landlord accruing under this Lease from and after the date of the transfer,
provided that (i) any funds held by the transferor in which Tenant has an
interest shall be turned over, subject to that interest, to the transferee, (ii)
Tenant is notified of the transfer, and (iii) the transferee assumes in writing
all non-accrued obligations of Landlord under this Lease. No holder of a
mortgage and/or deed of trust to which this Lease is or may be subordinate shall
be responsible in connection with the Security Deposit, unless the mortgagee or
holder of the deed of trust or the landlord actually receives the Security
Deposit. It is intended that the covenants and obligations contained in this
Lease on the part of Landlord shall, subject to the foregoing, be binding on
Landlord, its successors and assigns, only during and in respect to their
respective successive periods of ownership.
ARTICLE XX. INTERPRETATION
SECTION 20.1. GENDER AND NUMBER. Whenever the context of this Lease
requires, the words "Landlord" and "Tenant" shall include the plural as well as
the singular, and words used in neuter, masculine or feminine genders shall
include the others.
SECTION 20.2. HEADINGS. The captions and headings of the articles and
sections of this Lease are for convenience only, are not a part of this Lease
and shall have no effect upon its construction or interpretation.
SECTION 20.3. JOINT AND SEVERAL LIABILITY. If more than one person or
entity is named as Tenant, the obligations imposed upon each shall be joint and
several and the act of or notice from, or notice or refund to, or the signature
of, any one or more of them shall be binding on all of them with respect to the
tenancy of this Lease, including, but not limited to, any renewal, extension,
termination or modification of this Lease.
SECTION 20.4. SUCCESSORS. Subject to Articles IX and XIX, all rights and
liabilities given to or imposed upon Landlord and Tenant shall extend to and
bind their respective heirs, executors, administrators, successors and assigns.
Nothing contained in this Section is intended, or shall be construed, to grant
to any person other than Landlord and Tenant and their successors and assigns
any rights or remedies under this Lease.
SECTION 20.5. TIME OF ESSENCE. Time is of the essence with respect to the
performance of every provision of this Lease in which time of performance is a
factor.
SECTION 20.6. CONTROLLING LAW. This Lease shall be governed by and
interpreted in accordance with the laws of the State of California.
SECTION 20.7. SEVERABILITY. If any term or provision of this Lease, the
deletion of which would not adversely affect the receipt of any material benefit
by either party or the deletion of which is consented to by the party adversely
affected, shall be held invalid or unenforceable to any extent, the remainder of
this Lease shall not be affected and each term and provision of this Lease shall
be valid and enforceable to the fullest extent permitted by law.
SECTION 20.8. WAIVER. One or more waivers by Landlord or Tenant of any
breach of any term, covenant or condition contained in this Lease shall not be a
waiver of any subsequent breach of the same or any other term, covenant or
condition. Consent to any act by one of the parties shall not be deemed to
render unnecessary the obtaining of that party's consent to any subsequent act.
No breach
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of this Lease shall be deemed to have been waived unless the waiver is
in a writing signed by the waiving party.
SECTION 20.9. INABILITY TO PERFORM. In the event that either party shall
be delayed or hindered in or prevented from the performance of any work or in
performing any act required under this Lease by reason of any cause beyond the
reasonable control of that party, then the performance of the work or the doing
of the act shall be excused for the period of the delay and the time for
performance shall be extended for a period equivalent to the period of the
delay. The provisions of this Section shall not operate to excuse Tenant from
the prompt payment of rent.
SECTION 20.10. ENTIRE AGREEMENT. This Lease and its exhibits and other
attachments cover in full each and every agreement of every kind between the
parties concerning the Premises, the Building, and the Project, and all
preliminary negotiations, oral agreements, understandings and/or practices,
except those contained in this Lease, are superseded and of no further effect.
Tenant waives its rights to rely on any representations or promises made by
Landlord or others which are not contained in this Lease. No verbal agreement
or implied covenant shall be held to modify the provisions of this Lease, any
statute, law, or custom to the contrary notwithstanding.
SECTION 20.11. QUIET ENJOYMENT. Upon the observance and performance
of all the covenants, terms and conditions on Tenant's part to be observed and
performed, and subject to the other provisions of this Lease, Tenant shall
peaceably and quietly hold and enjoy the Premises for the Term without hindrance
or interruption by Landlord or any other person claiming by or through Landlord.
SECTION 20.12. SURVIVAL. All covenants of Landlord or Tenant which
reasonably would be intended to survive the expiration or sooner termination of
this Lease, including without limitation any warranty or indemnity hereunder,
shall so survive and continue to be binding upon and inure to the benefit of the
respective parties and their successors and assigns.
ARTICLE XXI. EXECUTION AND RECORDING
SECTION 21.1. COUNTERPARTS. This Lease may be executed in one or more
counterparts, each of which shall constitute an original and all of which shall
be one and the same agreement.
SECTION 21.2. CORPORATE AND PARTNERSHIP AUTHORITY. If Tenant is a
corporation or partnership, each individual executing this Lease on behalf of
the corporation or partnership represents and warrants that he is duly
authorized to execute and deliver this Lease on behalf of the corporation or
partnership, and that this Lease is binding upon the corporation or partnership
in accordance with its terms. Tenant shall, at Landlord's request, deliver a
certified copy of its board of directors' resolution or partnership agreement or
certificate authorizing or evidencing the execution of this Lease.
SECTION 21.3. EXECUTION OF LEASE; NO OPTION OR OFFER. The submission of
this Lease to Tenant shall be for examination purposes only, and shall not
constitute an offer to or option for Tenant to lease the Premises. Execution of
this Lease by Tenant and its return to Landlord shall not be binding upon
Landlord, notwithstanding any time interval, until Landlord has in fact executed
and delivered this Lease to Tenant, it being intended that this Lease shall only
become effective upon execution by Landlord and delivery of a fully executed
counterpart to Tenant.
SECTION 21.4. RECORDING. Tenant shall not record this Lease without the
prior written consent of Landlord. Tenant, upon the request of Landlord, shall
execute and acknowledge a "short form" memorandum of this Lease for recording
purposes.
SECTION 21.5. AMENDMENTS. No amendment or mutual termination of this
Lease shall be effective unless in writing signed by authorized signatories of
Tenant and Landlord, or by their respective successors in interest. No actions,
policies, oral or informal arrangements, business dealings or other course of
conduct by or between the parties shall be deemed to modify this Lease in any
respect.
ARTICLE XXII. MISCELLANEOUS
SECTION 22.1. NONDISCLOSURE OF LEASE TERMS. Tenant acknowledges and
agrees that the terms of this Lease are confidential and constitute proprietary
information of Landlord. Disclosure of the terms could adversely affect the
ability of Landlord to negotiate other leases and impair Landlord's relationship
with other tenants. Accordingly, Tenant agrees that it, and its partners,
officers, directors, employees and attorneys, shall not intentionally and
voluntarily disclose the terms and conditions of this Lease to any other tenant
or apparent prospective tenant of the Building or Project, either directly or
indirectly, without the prior written consent of Landlord, provided, however,
that Tenant may disclose the terms to prospective subtenants or assignees under
this Lease.
SECTION 22.2. REPRESENTATIONS BY TENANT. The application, financial
statements and tax returns, if any, submitted and certified to by Tenant as an
accurate representation of its financial condition have been prepared, certified
and submitted to Landlord as an inducement and consideration
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to Landlord to enter into this Lease. The application and statements are
represented and warranted by Tenant to be correct to Tenant's actual
knowledge and to accurately and fully reflect Tenant's true financial
condition as of the date of execution of this Lease by Tenant. Tenant shall
during the Term promptly furnish Landlord with annual financial statements
reflecting Tenant's financial condition upon written request from Landlord.
SECTION 22.3. [Intentionally omitted]
SECTION 22.4. MORTGAGEE PROTECTION. No act or failure to act on the part
of Landlord which would otherwise entitle Tenant to be relieved of its
obligations hereunder or to terminate this Lease shall result in such a release
or termination unless (a) Tenant has given notice by registered or certified
mail to any beneficiary of a deed of trust or mortgage covering the Building
whose address has been furnished to Tenant and (b) such beneficiary is
thereafter afforded the same period granted Landlord hereunder to cure the
default, including, if necessary to effect the cure, time to obtain possession
of the Building by power of sale or judicial foreclosure provided that such
foreclosure remedy is diligently pursued.
SECTION 22.5. DISCLOSURE STATEMENT. Tenant acknowledges that it has read,
understands and, if applicable, shall comply with the provisions of Exhibit F to
this Lease, if that Exhibit is attached.
LANDLORD: TENANT:
THE IRVINE COMPANY NETRATINGS, INC.
By /s/ William R. Halford By /s/ Jack Lazar
--------------------------------- ---------------------------------
William R. Halford, President,
Irvine Office Company, Printed Name Jack Lazar
a division of The Irvine Company ----------------------
Title Vice President and CFO
----------------------------
By /s/ Vincent Hayes By /s/ Stephen Gross
--------------------------------- ---------------------------------
Vincent P. Hayes
Assistant Secretary Printed Name Stephen Gross
-----------------------
Title Vice President, Finance
------------------------------
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EXHIBIT B
UTILITIES AND SERVICES
The following standards for utilities and services shall be in effect
at the Building. Landlord reserves the right to adopt nondiscriminatory
modifications and additions to these standards. In the case of any conflict
between these standards and the Lease, the Lease shall be controlling. Subject
to all of the provisions of the Lease, including but not limited to the
restrictions contained in Section 6.1, the following shall apply:
1. Landlord shall furnish to the Premises during the hours of 7:00
a.m. to 6:00 p.m., Monday through Friday, and 8:00 a.m. to 1:00 p.m. on
Saturday, generally recognized national holidays and Sundays excepted,
reasonable air conditioning, heating and ventilation services. Subject to the
provisions set forth below, Landlord shall also furnish the Building with
elevator service (if applicable), reasonable amounts of electric current for
normal lighting by Landlord's standard overhead fluorescent and incandescent
fixtures and for fractional horsepower office machines, and water for lavatory
and drinking purposes. Tenant will not, without the prior written consent of
Landlord, consume electricity in the Premises at a level in excess of 3 watts
per square foot or otherwise increase the amount of electricity, gas or water
usually furnished or supplied for use of the Premises as general office space;
nor shall Tenant 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. This paragraph shall at all
times be subject to applicable governmental regulations.
2. Upon reasonable notice from Tenant, Landlord will provide any of
the foregoing building services to Tenant at such times when such services are
not otherwise available. Tenant agrees to pay Landlord for those afterhour
services at competitive rates that Landlord may establish from time to time.
Notwithstanding the foregoing, Landlord agrees that during the initial twelve
(12) months of the Lease Term, the hourly charge payable by Tenant for afterhour
HVAC services shall not exceed Thirty-Four Dollars ($34.00) per hour per floor.
If Tenant requires electric current in excess of that which Landlord is
obligated to furnish under this Exhibit B, Tenant shall first obtain the consent
of Landlord, and Landlord may cause an electric current meter to be installed in
the Premises to measure the amount of electric current consumed. The cost of
installation, maintenance and repair of the meter shall be paid for by Tenant,
and Tenant shall reimburse Landlord promptly upon demand for all electric
current consumed for any special power use as shown by the meter. The
reimbursement shall be at the rates charged for electrical power by the local
public utility furnishing the current, plus any additional expense incurred in
keeping account of the electric current consumed.
3. If any lights, machines or equipment (including without
limitation electronic data processing machines) 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 fractional
horsepower office equipment, Landlord shall have the right at its election to
install or modify any machinery and equipment to the extent Landlord reasonably
deems necessary to restore temperature balance. The cost of installation, and
any additional cost of operation and maintenance, shall be paid by Tenant to
Landlord promptly upon demand.
4. Landlord shall furnish water for drinking, personal hygiene
and lavatory purposes only. If Tenant requires or uses water for any
purposes in addition to ordinary drinking, cleaning and lavatory purposes,
Landlord may, in its discretion, install a water meter to measure Tenant's
water consumption. Tenant shall pay Landlord for the cost of the meter and
the cost of its installation, and for consumption throughout the duration of
Tenant's occupancy. Tenant shall keep the meter and installed equipment in
good working order and repair at Tenant's own cost and expense, in default of
which Landlord may cause the meter to be replaced or repaired at Tenant's
expense. Tenant agrees to pay for water consumed, as shown on the meter and
when bills are rendered, and on Tenant's default in making that payment
Landlord may pay the charges on behalf of Tenant. Any costs or expenses or
payments made by Landlord for any of the reasons or purposes stated above
shall be deemed to be additional rent payable by Tenant to Landlord upon
demand.
5. In the event that any utility service to the Premises is
separately metered or billed to Tenant, Tenant shall pay all charges for that
utility service to the Premises and the cost of furnishing the utility to tenant
suites shall be excluded from the Operating Expenses as to which reimbursement
from Tenant is required in the Lease. If any utility charges are not paid when
due Landlord may pay them, and any amounts paid by Landlord shall immediately
become due to Landlord from Tenant as additional rent. If Landlord elects to
furnish any utility service to the Premises, Tenant shall purchase its
requirements of that utility from Landlord as long as the rates charged by
Landlord do not exceed those which Tenant would be required to pay if the
utility service were furnished it directly by a public utility.
6. Landlord shall provide janitorial services five days per week,
equivalent to that furnished in comparable buildings, and window washing as
reasonably required; provided, however, that Tenant shall pay for any additional
or unusual janitorial services required by reason of any nonstandard
improvements in the Premises, including without limitation wall coverings and
floor coverings installed by or for Tenant, or by reason of any use of Premises
other than exclusively as offices. The cleaning services provided by Landlord
shall also exclude refrigerators, eating utensils (plates, drinking containers
and silverware), and interior glass partitions. Tenant shall pay to Landlord
the cost of removal of any of
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Tenant's refuse and rubbish, to the extent that they exceed the refuse and
rubbish usually attendant with general office usage.
7. Tenant shall have access to the Building 24 hours per day, 7 days
per week, 52 weeks per year; provided that Landlord may install access control
systems as it deems advisable for the Building. Such systems may, but need
not, include full or part-time lobby supervision, the use of a sign-in sign-out
log, a card identification access system, building parking and access pass
system, closing hours procedures, access control stations, fire stairwell exit
door alarm system, electronic guard system, mobile paging system, elevator
control system or any other access controls. It is specifically understood that
the initial access control procedures shall include a card key access system.
In the event that Landlord elects to provide any or all of those services,
Landlord may discontinue providing them at any time with or without notice.
Landlord may impose a reasonable charge for access control cards and/or keys
issued to Tenant. Landlord shall have no liability to Tenant for the provision
by Landlord of improper access control services, for any breakdown in service,
or for the failure by Landlord to provide access control services. Tenant
further acknowledges that Landlord's access systems may be temporarily
inoperative during building emergency and system repair periods. Tenant agrees
to assume responsibility for compliance by its employees with any regulations
established by Landlord with respect to any card key access or any other system
of building access as Landlord may establish. Tenant shall be liable to
Landlord for any loss or damage resulting from its or its employees use of any
access system.
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EXHIBIT C
PARKING
The following parking regulations shall be in effect at the Building.
Landlord reserves the right to adopt reasonable, nondiscriminatory modifications
and additions to the regulations by written notice to Tenant. In the case of
any conflict between these regulations and the Lease, the Lease shall be
controlling.
1. Landlord agrees to maintain, or cause to be maintained, an
automobile parking area ("Parking Area") in reasonable proximity to the Building
for the benefit and use of the visitors and patrons and, except as otherwise
provided, employees of Tenant, and other tenants and occupants of the Building.
The Parking Area shall include, whether in a surface parking area or a parking
structure, the automobile parking stalls, driveways, entrances, exits, sidewalks
and attendant pedestrian passageways and other areas designated for parking.
Landlord shall have the right and privilege of determining the nature and extent
of the automobile Parking Area, whether it shall be surface, underground or
other structure, and of making such changes to the Parking Area from time to
time which in its opinion are desirable and for the best interests of all
persons using the Parking Area. Landlord shall keep the Parking Area in a neat,
clean and orderly condition, and shall repair any damage to its facilities.
Landlord shall not be liable for any damage to motor vehicles of visitors or
employees, for any loss of property from within those motor vehicles, or for any
injury to Tenant, its visitors or employees, unless ultimately determined to be
caused by the sole active negligence or willful misconduct of Landlord. Unless
otherwise instructed by Landlord, every parker shall park and lock his or her
own motor vehicle. Landlord shall also have the right to establish, and from
time to time amend, and to enforce against all users of the Parking Area all
reasonable rules and regulations (including the designation of areas for
employee parking) as Landlord may deem necessary and advisable for the proper
and efficient operation and maintenance of the Parking Area. Garage managers or
attendants are not authorized to make or allow any exceptions to these
regulations.
2. Landlord may, if it deems advisable in its sole discretion,
charge for parking and may establish for the Parking Area a system or systems of
permit parking for Tenant, its employees and its visitors, which may include,
but not be limited to, a system of charges against nonvalidated parking,
verification of users, a set of regulations governing different parking
locations, and an allotment of reserved or nonreserved parking spaces based upon
the charges paid and the identity of users. In no event shall Tenant or its
employees park in reserved stalls leased to other tenants or in stalls within
designated visitor parking zones, nor shall Tenant or its employees utilize more
than the number of parking stalls allotted in this Lease to Tenant. It is
understood that Landlord shall not have any obligation to cite improperly parked
vehicles or otherwise attempt to enforce reserved parking rules during hours
when parking attendants are not present at the Parking Area. Tenant shall
comply with such system in its use (and in the use of its visitors, patrons and
employees) of the Parking Area, provided, however, that the system and rules and
regulations shall apply to all persons entitled to the use of the Parking Area,
and all charges to Tenant for use of the Parking Area shall be no greater than
Landlord's then current scheduled charge for parking.
3. Tenant shall, upon request of Landlord from time to time, furnish
Landlord with a list of its employees' names and of Tenant's and its employees'
vehicle license numbers. Tenant agrees to acquaint its employees with these
regulations and assumes responsibility for compliance by its employees with
these parking provisions, and shall be liable to Landlord for all unpaid parking
charges incurred by its employees. Any amount due from Tenant shall be deemed
additional rent. Tenant authorizes Landlord to tow away from the Building any
vehicle belonging to Tenant or Tenant's employees parked in violation of these
provisions, and/or to attach violation stickers or notices to those vehicles.
In the event Landlord elects or is required to limit or control parking by
tenants, employees, visitors or invitees of the Building, whether by validation
of parking tickets, parking meters or any other method of assessment, Tenant
agrees to participate in the validation or assessment program under reasonable
rules and regulations as are established by Landlord and/or any applicable
governmental agency.
4. Landlord may establish an identification system for vehicles of
Tenant and its employees which may consist of stickers, magnetic parking cards
or other identification devices supplied by Landlord. All identification
devices shall remain the property of Landlord, shall be displayed as required by
Landlord or upon request and may not be mutilated or obliterated in any manner.
Those devices shall not be transferable and any such device in the possession of
an unauthorized holder shall be void and may be confiscated. Landlord may
impose a reasonable fee for identification devices and a replacement charge for
devices which are lost or stolen. Each identification device shall be returned
to Landlord promptly following the Expiration Date or sooner termination of this
Lease. Loss or theft of parking identification devices shall be reported to
Landlord or its Parking Area operator immediately and a written report of the
loss filed if requested by Landlord or its Parking Area operator.
5. Persons using the Parking Area shall observe all directional
signs and arrows and any posted speed limits. Unless otherwise posted, in no
event shall the speed limit of 5 miles per hour be exceeded. All vehicles shall
be parked entirely within painted stalls, and no vehicles shall be parked in
areas which are posted or marked as "no parking" or on or in ramps, driveways
and aisles. Only one vehicle may be parked in a parking space. In no event
shall Tenant interfere with the use and enjoyment of the Parking Area by other
tenants of the Building or their employees or invitees.
6. Parking Areas shall be used only for parking vehicles. Washing,
waxing, cleaning or servicing of vehicles, or the parking of any vehicle on an
overnight basis, in the Parking Area (other than
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emergency services) by any parker or his or her agents or employees is
prohibited unless otherwise authorized by Landlord. Tenant shall have no
right to install any fixtures, equipment or personal property (other than
vehicles) in the Parking Area, nor shall Tenant make any alteration to the
Parking Area.
7. It is understood that the employees of Tenant and the other
tenants of Landlord within the Building and Project shall not be permitted to
park their automobiles in the portions of the Parking Area which may from time
to time be designated for patrons of the Building and/or Project and that
Landlord shall at all times have the right to establish rules and regulations
for employee parking. Employees shall pay to Landlord or its agents for the use
of employee parking spaces the amounts as Landlord shall from time to time
determine. Landlord may authorize persons other than those described above,
including occupants of other buildings, to utilize the Parking Area. In the
event of the use of the Parking Area by other persons, those persons shall pay
for that use in accordance with the terms established above; provided, however,
Landlord may allow those persons to use the Parking Area on weekends, holidays,
and at other non-office hours without payment. Notwithstanding the foregoing,
provided Tenant is not in default under the Lease, the monthly stall charge for
the unreserved parking spaces allotted herein to Tenant's employees shall be
waived during the initial sixty (60) month Lease Term.
8. Notwithstanding the foregoing paragraphs 1 through 7, Landlord
shall be entitled to pass on to Tenant its proportionate share of any charges or
parking surcharge or transportation management costs levied by any governmental
agency. The foregoing parking provisions are further subject to any
governmental regulations which limit parking or otherwise seek to encourage the
use of carpools, public transit or other alternative transportation forms or
traffic reduction programs. Tenant agrees that it will use its best efforts to
cooperate, including registration and attendance, in programs which may be
undertaken to reduce traffic. Tenant acknowledges that as a part of those
programs, it may be required to distribute employee transportation information,
participate in employee transportation surveys, allow employees to participate
in commuter activities, designate a liaison for commuter transportation
activities, distribute commuter information to all employees, and otherwise
participate in other programs or services initiated under a transportation
management program.
9. Should any parking spaces be allotted by Landlord to Tenant,
either on a reserved or nonreserved basis, Tenant shall not assign or sublet any
of those spaces, either voluntarily or by operation of law, without the prior
written consent of Landlord, except in connection with an authorized assignment
of this Lease or subletting of the Premises.
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EXHIBIT D
TENANT'S INSURANCE
The following standards for Tenant's insurance shall be in effect at
the Building. Landlord reserves the right to adopt reasonable nondiscriminatory
modifications and additions to those standards. Tenant agrees to obtain and
present evidence to Landlord that it has fully complied with the insurance
requirements.
1. Tenant shall, at its sole cost and expense, commencing on the
date Tenant is given access to the Premises for any purpose and during the
entire Term, procure, pay for and keep in full force and effect: (i) commercial
general liability insurance with respect to the Premises and the operations of
or on behalf of Tenant in, on or about the Premises, including but not limited
to personal injury, nonowned automobile, blanket contractual, independent
contractors, broad form property damage, fire legal liability, products
liability (if a product is sold from the Premises), liquor law liability (if
alcoholic beverages are sold, served or consumed within the Premises), and cross
liability and severability of interest clauses, which policy(ies) shall be
written on an "occurrence" basis and for not less than $2,000,000 combined
single limit (with a $50,000 minimum limit on fire legal liability) per
occurrence for bodily injury, death, and property damage liability, or the
current limit of liability carried by Tenant, whichever is greater, and subject
to such increases in amounts as Landlord may determine from time to time; (ii)
workers' compensation insurance coverage as required by law, together with
employers' liability insurance coverage; (iii) with respect to improvements,
alterations, and the like required or permitted to be made by Tenant under this
Lease, builder's all-risk insurance, in amounts satisfactory to Landlord; (iv)
insurance against fire, vandalism, malicious mischief and such other additional
perils as may be included in a standard "all risk" form, insuring the leasehold
improvements, trade fixtures, furnishings, equipment and items of personal
property in the Premises, in an amount equal to not less than ninety percent
(90%) of their actual replacement cost (with replacement cost endorsement),
which policy shall also include loss of income/business interruption/extra
expense coverage in an amount not less than nine months loss of income from
Tenant's business in the Premises. In no event shall the limits of any policy
be considered as limiting the liability of Tenant under this Lease.
2. All policies of insurance required to be carried by Tenant
pursuant to this Exhibit shall be written by responsible insurance companies
authorized to do business in the State of California and with a general
policyholder rating of not less than "A" and financial rating of not less than
"X" in the most current Best's Insurance Report. Any insurance required of
Tenant may be furnished by Tenant under any blanket policy carried by it or
under a separate policy. A certificate of insurance, certifying that the policy
has been issued, provides the coverage required by this Exhibit and contains the
required provisions, together with endorsements acceptable to Landlord
evidencing the waiver of subrogation and additional insured provisions required
under Paragraph 3 below, shall be delivered to Landlord prior to the date Tenant
is given the right of possession of the Premises. Proper evidence of the
renewal of any insurance coverage shall also be delivered to Landlord not less
than thirty (30) days prior to the expiration of the coverage. Landlord may at
any time, and from time to time, inspect and/or copy any and all insurance
policies required by this Lease.
3. Unless otherwise provided below, each policy evidencing insurance
required to be carried by Tenant pursuant to this Exhibit shall contain the
following provisions and/or clauses satisfactory to Landlord: (i) with respect
to Tenant's commercial general liability insurance, a provision that the policy
and the coverage provided shall be primary and that any coverage carried by
Landlord shall be excess and noncontributory, together with a provision
including Landlord and any other parties in interest designated by Landlord as
additional insureds; (ii) a waiver by the insurer of any right to subrogation
against Landlord, its agents, employees, contractors and representatives which
arises or might arise by reason of any payment under the policy or by reason of
any act or omission of Landlord, its agents, employees, contractors or
representatives; and (iii) a provision that the insurer will not cancel or
change the coverage provided by the policy without first giving Landlord thirty
(30) days prior written notice.
4. In the event that Tenant fails to procure, maintain and/or pay
for, at the times and for the durations specified in this Exhibit, any insurance
required by this Exhibit, or fails to carry insurance required by any
governmental authority, Landlord may at its election procure that insurance and
pay the premiums, in which event Tenant shall repay Landlord all sums paid by
Landlord, together with interest at the maximum rate permitted by law and any
related costs or expenses incurred by Landlord, within ten (10) days following
Landlord's written demand to Tenant.
NOTICE TO TENANT: IN ACCORDANCE WITH THE TERMS OF THIS LEASE, TENANT MUST
PROVIDE EVIDENCE OF THE REQUIRED INSURANCE TO LANDLORD'S MANAGEMENT AGENT PRIOR
TO OCCUPANCY OF THE PREMISES.
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EXHIBIT E
RULES AND REGULATIONS
The following Rules and Regulations shall be in effect at the
Building. Landlord reserves the right to adopt reasonable nondiscriminatory
modifications and additions at any time. In the case of any conflict between
these regulations and the Lease, the Lease shall be controlling.
1. Except with the prior written consent of Landlord, Tenant shall
not sell, or permit the retail sale of, newspapers, magazines, periodicals, or
theater tickets, in or from the Premises, nor shall Tenant carry on, or permit
or allow any employee or other person to carry on, the business of stenography,
typewriting or any similar business in or from the Premises for the service or
accommodation of occupants of any other portion of the Building. Tenant shall
not allow the Premises to be utilized for any manufacturing of any kind, or the
business of a public barber shop, beauty parlor, or a manicuring and chiropodist
business, or any business other than that specifically provided for in the
Lease.
2. The sidewalks, halls, passages, elevators, stairways, and other
common areas shall not be obstructed by Tenant or used by it for storage or for
any purpose other than for ingress to and egress from the Premises. The halls,
passages, entrances, elevators, stairways, balconies and roof are not for the
use of the general public, and Landlord shall in all cases retain the right to
control and prevent access to those areas of all persons whose presence, in the
judgment of Landlord, shall be prejudicial to the safety, character, reputation
and interests of the Building and its tenants. Nothing contained in this Lease
shall be construed to prevent access to persons with whom Tenant normally deals
only for the purpose of conducting its business on the Premises (such as
clients, customers, office suppliers and equipment vendors and the like) unless
those persons are engaged in illegal activities. Neither Tenant nor any
employee or contractor of Tenant shall go upon the roof of the Building without
the prior written consent of Landlord.
3. The sashes, sash doors, windows, glass lights, solar film and/or
screen, and any lights or skylights that reflect or admit light into the halls
or other places of the Building shall not be covered or obstructed. The toilet
rooms, water and wash closets and other water apparatus shall not be used for
any purpose other than that for which they were constructed, and no foreign
substance of any kind shall be thrown in those facilities, and the expense of
any breakage, stoppage or damage resulting from the violation of this rule shall
be borne by Tenant.
4. No sign, advertisement or notice visible from the exterior of the
Premises shall be inscribed, painted or affixed by Tenant on any part of the
Building or the Premises without the prior written consent of Landlord. If
Landlord shall have given its consent at any time, whether before or after the
execution of this Lease, that consent shall in no way operate as a waiver or
release of any of the provisions of this Lease, and shall be deemed to relate
only to the particular sign, advertisement or notice so consented to by Landlord
and shall not be construed as dispensing with the necessity of obtaining the
specific written consent of Landlord with respect to any subsequent sign,
advertisement or notice. If Landlord, by a notice in writing to Tenant, shall
object to any curtain, blind, tinting, shade or screen attached to, or hung in,
or used in connection with, any window or door of the Premises, the use of that
curtain, blind, tinting, shade or screen shall be immediately discontinued and
removed by Tenant. No awnings shall be permitted on any part of the Premises.
5. Tenant shall not do or permit anything to be done in the
Premises, or bring or keep anything in the Premises, which shall in any way
increase the rate of fire insurance on the Building, or on the property kept in
the Building, or obstruct or interfere with the rights of other tenants, or in
any way injure or annoy them, or conflict with the regulations of the Fire
Department or the fire laws, or with any insurance policy upon the Building, or
any portion of the Building or its contents, or with any rules and ordinances
established by the Board of Health or other governmental authority.
6. The installation and location of any unusually heavy equipment in
the Premises, including without limitation file storage units, safes and
electronic data processing equipment, shall require the prior written approval
of Landlord. Landlord may restrict the weight and position of any equipment
that may exceed the weight load limits for the structure of the Building, and
may further require, at Tenant's expense, the reinforcement of any flooring on
which such equipment may be placed and/or an engineering study to be performed
to determine whether the equipment may safely be installed in the Building and
the necessity of any reinforcement. The moving of large or heavy objects shall
occur only between those hours as may be designated by, and only upon previous
written notice to, Landlord, and the persons employed to move those objects in
or out of the Building must be reasonably acceptable to Landlord. No freight,
furniture or bulky matter of any description shall be received into or moved out
of the lobby of the Building or carried in any elevator other than the freight
elevator designated by Landlord unless approved in writing by Landlord.
7. Landlord shall clean the Premises as provided in the Lease, and
except with the written consent of Landlord, no person or persons other than
those approved by Landlord will be permitted to enter the Building for that
purpose. Tenant shall not cause unnecessary labor by reason of Tenant's
carelessness and indifference in the preservation of good order and
cleanliness. Landlord shall not be responsible to Tenant or its employees for
loss or damage to property in connection with the provision of janitorial
services by third party contractors.
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8. Tenant shall not sweep or throw, or permit to be swept or thrown,
from the Premises any dirt or other substance into any of the corridors or halls
or elevators, or out of the doors or windows or stairways of the Building, and
Tenant shall not use, keep or permit to be used or kept any foul or noxious gas
or substance in the Premises, or permit or suffer the Premises to be occupied or
used in a manner offensive or objectionable to Landlord or other occupants of
the Building by reason of noise, odors and/or vibrations, or interfere in any
way with other tenants or those having business with other tenants, nor shall
any animals or birds be kept by Tenant in or about the Building. Smoking or
carrying of lighted cigars, cigarettes, pipes or similar products anywhere
within the Premises or Building is strictly prohibited, and Landlord may enforce
such prohibition pursuant to Landlord's leasehold remedies. Smoking is
permitted outside the Building and within the project only in areas designated
by Landlord.
9. No cooking shall be done or permitted by Tenant on the Premises,
except pursuant to the normal use of a U.L. approved microwave oven and coffee
maker for the benefit of Tenant's employees and invitees, nor shall the Premises
be used for the storage of merchandise or for lodging.
10. Tenant shall not use or keep in the Building any kerosene,
gasoline, or inflammable fluid or any other illuminating material, or use any
method of heating other than that supplied by Landlord.
11. If Tenant desires telephone, telegraph, burglar alarm or similar
connections, Landlord will direct electricians as to where and how the wires are
to be introduced. No boring or cutting for wires or otherwise shall be made
without directions from Landlord.
12. Upon the termination of its tenancy, Tenant shall deliver to
Landlord all the keys to offices, rooms and toilet rooms and all access cards
which shall have been furnished to Tenant or which Tenant shall have had made.
13. Tenant shall not mark, drive nails, screw or drill into the
partitions, woodwork or plaster or in any way deface the Premises, except to
install normal wall hangings. Tenant shall not affix any floor covering to the
floor of the Premises in any manner except by a paste, or other material which
may easily be removed with water, the use of cement or other similar adhesive
materials being expressly prohibited. The method of affixing any floor covering
shall be subject to approval by Landlord. The expense of repairing any damage
resulting from a violation of this rule shall be borne by Tenant.
14. On Saturdays, Sundays and legal holidays, and on other days
between the hours of 6:00 p.m. and 8:00 a.m., access to the Building, or to the
halls, corridors, elevators or stairways in the Building, or to the Premises,
may be refused unless the person seeking access complies with any access control
system that Landlord may establish. Landlord shall in no case be liable for
damages for the admission to or exclusion from the Building of any person whom
Landlord has the right to exclude under Rules 2 or 18 of this Exhibit. In case
of invasion, mob, riot, public excitement, or other commotion, or in the event
of any other situation reasonably requiring the evacuation of the Building,
Landlord reserves the right at its election and without liability to Tenant to
prevent access to the Building by closing the doors or otherwise, for the safety
of the tenants and protection of property in the Building.
15. Tenant shall be responsible for protecting the Premises from
theft, which includes keeping doors and other means of entry closed and securely
locked. Tenant shall cause all water faucets or water apparatus to be shut off
before Tenant or Tenant's employees leave the Building, and that all
electricity, gas or air shall likewise be shut off, so as to prevent waste or
damage, and for any default or carelessness Tenant shall make good all injuries
sustained by other tenants or occupants of the Building or Landlord.
16. Tenant shall not alter any lock or install a new or additional
lock or any bolt on any door of the Premises without the prior written consent
of Landlord. If Landlord gives its consent, Tenant shall in each case promptly
furnish Landlord with a key for any new or altered lock.
17. Tenant shall not install equipment, such as but not limited to
electronic tabulating or computer equipment, requiring electrical or air
conditioning service in excess of that to be provided by Landlord under the
Lease except in accordance with Exhibit B.
18. Landlord shall have the right to restrict access to the Building
or Project of persons whom Landlord determines will be involved in general
solicitation activities, or the proselytizing, petitioning, or disturbance of
other tenants or their customers or invitees. Landlord reserves the absolute
right and discretion to limit or prevent access to the Buildings by any food or
beverage vendor, whether or not invited by Tenant, and Landlord may condition
such access upon the vendor's execution of an entry permit agreement which may
contain provisions for insurance coverage and/or the payment of a fee to
Landlord.
19. Tenant shall be required to utilize the third party contractor
designated by Landlord for the Building to provide any telephone wiring services
from the minimum point of entry of the telephone cable in the Building to the
Premises. Notwithstanding the foregoing, however, in the event Tenant does not
have a telephone switch within the Premises, Tenant may, with Landlord's
approval and supervision, use a trained contractor to provide such wiring
services, but only from the Premises to the telephone room on the floor on which
the Premises are situated.
20. Landlord may from time to time grant tenants individual and
temporary variances from these Rules, provided that any variance does not have a
material adverse effect on the use and enjoyment of the Premises by Tenant.
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EXHIBIT X
WORK LETTER
DOLLAR ALLOWANCE
I. TENANT IMPROVEMENTS
The Tenant Improvement work (herein "Tenant Improvements") shall consist of
any work, including work in place as of the date hereof, required to
complete the Premises pursuant to plans and specifications approved by both
Landlord and Tenant. All of the Tenant Improvement work shall be performed
by a contractor selected by Landlord and in accordance with the following
procedures and requirements:
A. Tenant and Landlord have approved, or shall approve within the time
period set forth below, both (i) a detailed space plan for the
Premises, prepared by the architect engaged by Landlord for the work
described herein ("Landlord's Architect"), which includes interior
partitions, ceilings, interior finishes, interior office doors, suite
entrance, floor coverings, window coverings, lighting, electrical and
telephone outlets, plumbing connections, heavy floor loads and other
special requirements ("Preliminary Plan"), and (ii) an estimate,
prepared by the contractor engaged by Landlord for the work herein
("Landlord's Contractor"), of the cost for which Landlord will
complete or cause to be completed the Tenant Improvements
("Preliminary Cost Estimate"). Tenant shall approve or disapprove
each of the Preliminary Plan and the Preliminary Cost Estimate by
signing copies of the appropriate instrument and delivering same to
Landlord within five (5) business days of its receipt by Tenant. If
Tenant disapproves any matter, Tenant shall specify in detail the
reasons for disapproval and Landlord shall attempt to modify the
Preliminary Plan and the Preliminary Cost Estimate to incorporate
Tenant's suggested revisions in a mutually satisfactory manner.
Notwithstanding the foregoing, however, Tenant shall approve in all
respects a Preliminary Plan and Preliminary Cost Estimate not later
than the date set forth in Item 11 of the Basic Lease Provisions
("Plan Approval Date"), it being understood that Tenant's failure to
do so shall constitute a "Tenant Delay" for purposes of this Lease.
B. On or before the Plan Approval Date, Tenant shall provide in writing
to Landlord or Landlord's Architect all specifications and information
reasonably requested by Landlord for the preparation of final
construction documents and costing, including without limitation
Tenant's final selection of wall and floor finishes, complete
specifications and locations (including load and HVAC requirements) of
Tenant's equipment, and details of all "Non-Standard Improvements" (as
defined below) to be installed in the Premises (collectively,
"Programming Information"). Except to the extent occasioned by any
delay caused by Landlord, Tenant's failure to provide the Programming
Information by the Plan Approval Date shall constitute a Tenant Delay
for purposes of this Lease. Tenant understands that final
construction documents for the Tenant Improvements shall be predicated
on the Programming Information, and accordingly that such information
must be accurate and complete.
C. Upon Tenant's approval of the Preliminary Plan and Preliminary Cost
Estimate and delivery of the complete Programming Information,
Landlord's Architect and engineers shall prepare and deliver to the
parties working drawings and specifications ("Working Drawings and
Specifications"), and Landlord's Contractor shall prepare a final
construction cost estimate ("Final Cost Estimate") for the Tenant
Improvements in conformity with the Working Drawings and
Specifications. Tenant shall have five (5) business days from the
receipt thereof to approve or disapprove the Working Drawings and
Specifications and the Final Cost Estimate, and any disapproval or
requested modification shall be limited to items or cost increases not
contained in the approved Preliminary Plan or Preliminary Cost
Estimate. In no event shall Tenant disapprove the Final Cost Estimate
if it does not exceed the approved Preliminary Cost Estimate. Should
Tenant disapprove the Working Drawings and Specifications and the
Final Cost Estimate, such disapproval shall be accompanied by a
detailed list of revisions. Any revision requested by Tenant shall,
subject to Landlord's reasonable approval rights, be incorporated by
Landlord's Architect into a revised set of Working Drawings and
Specifications and Final Cost Estimate, and Tenant shall approve same
in writing within five (5) business days of receipt without further
revision. Tenant's failure to comply in a
<PAGE>
timely manner with any of the requirements of this paragraph shall
constitute a Tenant Delay, except to the extent occasioned by
delays caused by Landlord. Without limiting the rights of
Landlord for Tenant Delays as set forth herein, in the event
Tenant has not approved both the Working Drawings and
Specifications and the Final Cost Estimate within sixty (60) days
following the date of this Lease (as extended for the period of
any delays caused by Landlord), then Landlord may, at its option,
elect to terminate this Lease by written notice to Tenant. In the
event Landlord elects to effect such a termination, Tenant shall,
within ten (10) days following demand by Landlord, pay to Landlord
any costs incurred by Landlord in connection with the preparation
or review of plans, construction estimates, price quotations,
drawings or specifications under this Work Letter and for all
costs incurred in the preparation and execution of this Lease,
including any leasing commissions.
D. In the event that Tenant requests in writing a revision in the
approved Working Drawings and Specifications ("Change"), then provided
such Change is acceptable to Landlord (which approval shall not be
unreasonably withheld), Landlord shall advise Tenant by written change
order as soon as is practical of any increase in the Completion Cost
and/or any Tenant Delay such Change would cause. Tenant shall approve
or disapprove such change order in writing within three (3) business
days following its receipt from Landlord. Tenant's approval of a
Change shall be accompanied by Tenant's payment of any resulting
increase in the Completion Cost. It is understood that Landlord shall
have no obligation to interrupt or modify the Tenant Improvement work
pending Tenant's approval of a change order.
E. It is understood that the Preliminary Plan and the Working Drawings
and Specifications, together with any Changes thereto, shall be
subject to the prior approval of Landlord (which approval shall not be
unreasonably withheld). Landlord shall identify any disapproved items
within three (3) business days (or two (2) business days in the case
of Changes) after receipt of the applicable document. In lieu of
disapproving an item, Landlord may approve same on the condition that
Tenant pay to Landlord, prior to the start of construction and in
addition to all sums otherwise due hereunder, an amount equal to the
cost, as reasonably estimated by Landlord, of removing and replacing
the item upon the expiration or termination of the Lease. Should
Landlord approve work that would necessitate any ancillary Building
modification or other expenditure by Landlord, then except to the
extent of any remaining balance of the "Landlord's Contribution" as
described below, Tenant shall, in addition to its other obligations
herein, promptly fund the cost thereof to Landlord.
F. Notwithstanding any provision in the Lease to the contrary, if Tenant
fails to comply with any of the time periods specified in this Work
Letter, fails otherwise to approve or reasonably disapprove any
submittal within five (5) business days, fails to approve in writing
both the Preliminary Plan and Preliminary Cost Estimate for the Tenant
Improvements by the Plan Approval Date, fails to provide all of the
Programming Information requested by Landlord by the Plan Approval
Date, fails to approve in writing the Working Drawings and
Specifications and the Final Cost Estimate within the time provided
herein, requests any Changes, furnishes inaccurate or erroneous
specifications or other information, or otherwise unreasonably delays
in any manner the completion of the Tenant Improvements (including
without limitation by specifying materials that are not readily
available) or the issuance of an occupancy certificate (any of the
foregoing being referred to in this Lease as a "Tenant Delay"), then
Tenant shall bear any resulting additional construction cost or other
expenses, and the Commencement Date of this Lease shall be deemed to
have occurred for all purposes, including Tenant's obligation to pay
rent, as of the date Landlord reasonably determines that it would have
been able to deliver the Premises to Tenant but for the collective
Tenant Delays. In no event, however, shall such date be earlier than
the Estimated Commencement Date set forth in the Basic Lease
Provisions. Should Landlord determine that the Commencement Date
should be advanced in accordance with the foregoing, it shall so
notify Tenant in writing and shall state therein with specificity
Landlord's basis for the determination. Landlord's determination
shall be conclusive unless Tenant notifies Landlord in writing, within
ten (10) business days thereafter, of Tenant's election to contest
same by arbitration with JAMS/ENDISPUTE pursuant to Section 14.7(b) of
the Lease. Pending the outcome of such arbitration proceedings,
Tenant shall make timely payment of all rent due under this Lease
based upon the Commencement Date set forth in the aforesaid notice
from Landlord.
<PAGE>
G. Landlord shall permit Tenant and its agents to enter the Premises
prior to the Commencement Date of the Lease in order that Tenant may
perform any work to be performed by Tenant hereunder through its own
contractors, subject to Landlord's prior written approval (which
approval shall not be unreasonably withheld), and in a manner and upon
terms and conditions and at times satisfactory to Landlord's
representative. The foregoing license to enter the Premises prior to
the Commencement Date is, however, conditioned upon Tenant's
contractors and their subcontractors and employees working in harmony
and not interfering with the work being performed by Landlord. If at
any time that entry shall unreasonably interfere with the work being
performed by Landlord, this license may be withdrawn by Landlord upon
twenty-four (24) hours written notice to Tenant. That license is
further conditioned upon the compliance by Tenant's contractors with
all requirements imposed by Landlord on third party contractors and
subcontractors, including without limitation the maintenance by Tenant
and its contractors and subcontractors of workers' compensation and
public liability and property damage insurance in amounts and with
companies and on forms satisfactory to Landlord, with certificates of
such insurance being furnished to Landlord prior to proceeding with
any such entry. The entry shall be deemed to be under all of the
provisions of the Lease except as to the covenants to pay rent.
Landlord shall not be liable in any way for any injury, loss or damage
which may occur to any such work being performed by Tenant, the same
being solely at Tenant's risk. In no event shall the failure of
Tenant's contractors to complete any work in the Premises extend the
Commencement Date of this Lease beyond the date that Landlord has
completed its Tenant Improvement work and tendered the Premises to
Tenant.
H. Tenant hereby designates Stephen Gross, Telephone No. (408) 957-0699,
as its representative, agent and attorney-in-fact for the purpose of
receiving notices, approving submittals and issuing requests for
Changes, and Landlord shall be entitled to rely upon authorizations
and directives of such person(s) as if given directly by Tenant.
Tenant may amend the designation of its construction representative(s)
at any time upon delivery of written notice to Landlord.
II. COST OF TENANT IMPROVEMENTS
A. Landlord shall complete, or cause to be completed, the Tenant
Improvements, at the construction cost shown in the approved Final
Cost Estimate (subject to the provisions of this Work Letter), in
accordance with final Working Drawings and Specifications approved by
both Landlord and Tenant. Landlord shall pay towards the final
construction costs ("Completion Cost") as incurred a maximum of Four
Hundred Forty-Five Thousand Nine Hundred Dollars ($445,900.00)
("Landlord's Contribution"), based on $25.00 per usable square foot of
the Premises, and Tenant shall be fully responsible for the remainder
("Tenant's Contribution"). If the actual cost of completion of the
Tenant Improvements is less than the maximum amount provided for the
Landlord's Contribution, such savings shall inure to the benefit of
Landlord and Tenant shall not be entitled to any credit or payment.
B. The Completion Cost shall include all direct costs of Landlord in
completing the Tenant Improvements, including but not limited to the
following: (i) payments made to architects, engineers, contractors,
subcontractors and other third party consultants in the performance of
the work, (ii) permit fees and other sums paid to governmental
agencies, (iii) costs of all materials incorporated into the work or
used in connection with the work, and (iv) keying and signage costs.
The Completion Cost shall also include an administrative/ supervision
fee to be paid to Landlord in the amount of five percent (5%) of all
such direct costs.
C. Prior to start of construction of the Tenant Improvements, Tenant
shall pay to Landlord the amount of the Tenant's Contribution set
forth in the approved Final Cost Estimate. In addition, if the actual
Completion Cost of the Tenant Improvements is greater than the Final
Cost Estimate because of modifications or extras specifically
requested by Tenant and not reflected on the approved working
drawings, or because of Tenant Delays, then Tenant shall pay to
Landlord, within ten (10) days following submission of an invoice
therefor, all such additional costs, including any additional
architectural fee. If Tenant defaults in the payment of any sums due
under this Work Letter, Landlord shall (in addition to all other
remedies) have the same rights as in the case of Tenant's failure to
pay rent under the Lease.
D. Notwithstanding the foregoing and in addition to the Landlord's
Contribution, Landlord agrees to fund the cost of other tenant
improvement work in the Premises requested in writing by Tenant, but
exclusive of furniture, furnishings and removable
<PAGE>
personal property, up to a maximum of Eighty-Nine Thousand One
Hundred Eighty Dollars ($89,180.00) (the "Additional Allowance").
For every One Hundred Dollars ($100.00) or portion thereof of the
Additional Allowance so funded by Landlord, the Basic Rent payable
during the initial sixty (60) months of this Lease by Tenant shall
increase by Two Dollars and Twenty Cents ($2.20) per month,
retroactive to the Commencement Date of this Lease. Upon request
by Landlord, the amount of such rental adjustment shall be
memorialized on a form provided by Landlord. In the event that
the amount of the rental adjustment is finally determined
subsequent to the Commencement Date, Tenant shall promptly pay to
Landlord a lump sum amount equal to the total accrued sums owing
due to the retroactive adjustment.
E. Landlord shall warrant that the Tenant Improvements installed by or
under the supervision of Landlord will be constructed in a good and
workmanlike manner and without material defects. Tenant shall not be
responsible for payment of any costs required to correct defective or
non-complying work or materials, provided Tenant notifies Landlord
thereof within six (6) months following the Commencement Date.
<PAGE>
FIRST AMENDMENT TO LEASE
I. PARTIES AND DATE.
This First Amendment to Lease (the "First Amendment") dated November 17,
1999, is by and between THE IRVINE COMPANY ("Landlord"), and NETRATINGS,
INC., a Delaware corporation ("Tenant").
II. RECITALS.
On November 9, 1999, Landlord and Tenant entered into an office space lease
("Lease") for space in a building located at 890 Hillview Court, Suite 300,
Milpitas, California ("Premises").
Landlord and Tenant each desire to modify the Lease to add on a temporary
basis Suite 260 comprising approximately 2,599 rentable square feet of space in
the building located at 860 Hillview Court and as shown on Exhibit A hereto (the
"Temporary Premises") in accordance with the provisions set forth in "III.
MODIFICATIONS" next below.
III. MODIFICATIONS.
TEMPORARY PREMISES. Landlord shall lease to Tenant, and Tenant shall lease
from Landlord, the Temporary Premises. The lease of the Temporary Premises
shall be subject to all of the terms of the Lease except that:
(i) The lease term for the Temporary Premises shall commence ("Commencement
Date for the Temporary Premises") on the date Landlord makes the Temporary
Premises available to Tenant following the execution of this Amendment, and
shall continue thereafter until the Commencement Date of the Lease, or, if
applicable, the sooner termination of the Lease. Promptly following
request by Landlord, the parties shall memorialize on a form provided by
Landlord the actual Commencement Date for the Temporary Premises.
(ii) The Basic Rent for the Temporary Premises shall be Six Thousand Four
Hundred Ninety-Eight Dollars ($6,498.00) per month, as appropriately
prorated for any partial month;
(iii) Tenant shall not be obligated to reimburse Landlord for Operating
Expenses for the Temporary Premises accruing during Tenant's occupancy
thereof; and
(iv) Tenant shall take possession of the Temporary Premises in its existing
condition (i.e., "as-is"), and waives any right or claim against Landlord
arising out of the condition of the Temporary Premises.
IV. GENERAL.
A. EFFECT OF AMENDMENTS. The Lease shall remain in full force and effect
except to the extent that it is modified by this Amendment.
B. ENTIRE AGREEMENT. This Amendment embodies the entire understanding
between Landlord and Tenant with respect to the modifications set forth in "III.
MODIFICATIONS" above and can be changed only by a writing signed by Landlord and
Tenant.
C. COUNTERPARTS. If this Amendment is executed in counterparts, each is
hereby declared to be an original; all, however, shall constitute but one and
the same amendment. In any action
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<PAGE>
or proceeding, any photographic, photostatic, or other copy of this Amendment
may be introduced into evidence without foundation.
D. DEFINED TERMS. All words commencing with initial capital letters in
this Amendment and defined in the Lease shall have the same meaning in this
Amendment as in the Lease, unless they are otherwise defined in this Amendment.
E. CORPORATE AND PARTNERSHIP AUTHORITY. If Tenant is a corporation or
partnership, or is comprised of either or both of them, each individual
executing this Amendment for the corporation or partnership represents that he
or she is duly authorized to execute and deliver this Amendment on behalf of the
corporation or partnership and that this Amendment is binding upon the
corporation or partnership in accordance with its terms.
F. ATTORNEYS' FEES. The provisions of the Lease respecting payment of
attorneys' fees shall also apply to this Amendment.
V. EXECUTION.
Landlord and Tenant executed this Amendment on the date as set forth in "I.
PARTIES AND DATE." above.
LANDLORD: TENANT:
THE IRVINE COMPANY NETRATINGS, INC.
By /s/ Craig D. Brashier By /s/ Jack Lazar
------------------------------- ---------------------------
Craig D. Brashier, Vice President,
Operations Irvine Office Company, Title Vice President and CFO
a division of The Irvine Company ---------------------------
By /s/ Vincent P. Hayes By /s/ Stephen Gross
------------------------------- ---------------------------
Vincent P. Hayes
Assistant Secretary Title Vice President, Finance
---------------------------
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<PAGE>
SECOND AMENDMENT TO LEASE
I. PARTIES AND DATE.
This Second Amendment to Lease (the "Second Amendment") dated January 17,
2000, is by and between THE IRVINE COMPANY ("Landlord"), and NETRATINGS, INC.,
a Delaware corporation ("Tenant").
II. RECITALS.
On November 9, 1999, Landlord and Tenant entered into an office space lease
for space in a building located at 890 Hillview Court, Suite 300, Milpitas,
California ("Premises"), which lease was amended by a First Amendment to Lease
dated November 17, 1999 (as amended, the "Lease").
Landlord and Tenant each desire to modify the Lease to add the entire
second floor of the Building comprising approximately 19,454 rentable square
feet ("Suite 200"), adjust the Basic Rent, and make such other modifications as
are set forth in "III. MODIFICATIONS" next below.
III. MODIFICATIONS.
A. BASIC LEASE PROVISIONS. The Basic Lease Provisions are hereby amended
as follows:
1. Effective as of the Commencement Date for Suite 200, Item 2 shall
be amended by adding "Suite 200."
2. Item 4 is hereby amended by adding the following:
"Estimated Commencement Date for Suite 200: May 1, 2000"
3. Effective as of the Commencement Date for Suite 200, Item 6 shall
be amended by adding the following:
"Basic Rent for Suite 200: Twenty-Three Thousand Three Hundred
Forty-Five Dollars ($23,345.00) per month.
Rental Adjustments for Suite 200: Commencing three (3) months
following the Commencement Date for Suite 200, the Basic Rent for
Suite 200 shall be Forty-Six Thousand Six Hundred Ninety Dollars
($46,690.00) per month.
Commencing twelve (12) months following the Commencement Date of
the Lease, the Basic Rent for Suite 200 shall be Forty-Eight
Thousand Fifty-One Dollars ($48,051.00) per month.
Commencing twenty-four (24) months following the Commencement
Date of the Lease, the Basic Rent for Suite 200 shall be Forty-
Nine Thousand Six Hundred Eight Dollars ($49,608.00) per month.
Commencing thirty-six (36) months following the Commencement Date
of the Lease, the Basic Rent for Suite 200 shall be Fifty
Thousand Nine Hundred Sixty-Nine Dollars ($50,969.00) per month.
Commencing forty-eight (48) months following the Commencement
Date of the Lease, the Basic Rent for Suite 200 shall be
Fifty-Two Thousand
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Five Hundred Twenty-Six Dollars ($52,526.00) per
month."
4. Effective as of the Commencement Date for Suite 200, Item 8 shall
be deleted in its entirety and the following shall be substituted in
lieu thereof:
"8. Floor Area of Premises: approximately 39,609 rentable square
feet."
5. Item 9 is hereby deleted in its entirety and the following shall
be substituted in lieu thereof:
"9. Security Deposit: "$117,640.00"
6. Item 11 is hereby amended by adding the following:
"11. Plan Approval Date for Suite 200: February 15, 2000"
7. Effective as of the Commencement Date for Suite 200, Item 12
shall be deleted in its entirety and the following shall be
substituted in lieu thereof:
"12. Parking: One Hundred Fifty-Nine (159) unreserved vehicle
parking spaces."
B. SECURITY DEPOSIT. Concurrently with Tenant's delivery of this Second
Amendment, Tenant shall deliver the sum of Fifty-Seven Thousand Seven Hundred
Seventy-Nine Dollars ($57,779.00) to Landlord, which sum shall be added to the
Security Deposit presently being held by Landlord in accordance with Section 4.3
of the Lease.
C. FLOOR PLAN OF PREMISES. Effective as of the Commencement Date for
Suite 200, Exhibit A attached to this Second Amendment shall be added to the
Lease.
D. TENANT IMPROVEMENTS. Landlord hereby agrees to complete the Tenant
Improvements for Suite 200 in accordance with the provisions of Exhibit X, Work
Letter, attached to the Lease, except that the "Landlord's Contribution"
described in Paragraph II.A shall be Four Hundred Thirty Thousand Four Hundred
Dollars ($430,400.00), based on $25.00 per usable square foot of Suite 200, and
the "Additional Allowance" described in Paragraph II.D. shall not be applicable
to Suite 200.
IV. GENERAL.
A. EFFECT OF AMENDMENTS. The Lease shall remain in full force and effect
except to the extent that it is modified by this Amendment.
B. ENTIRE AGREEMENT. This Amendment embodies the entire understanding
between Landlord and Tenant with respect to the modifications set forth in "III.
MODIFICATIONS" above and can be changed only by a writing signed by Landlord and
Tenant.
C. COUNTERPARTS. If this Amendment is executed in counterparts, each is
hereby declared to be an original; all, however, shall constitute but one and
the same amendment. In any action or proceeding, any photographic, photostatic,
or other copy of this Amendment may be introduced into evidence without
foundation.
D. DEFINED TERMS. All words commencing with initial capital letters in
this Amendment and defined in the Lease shall have the same meaning in this
Amendment as in the Lease, unless they are otherwise defined in this Amendment.
E. CORPORATE AND PARTNERSHIP AUTHORITY. If Tenant is a corporation or
partnership, or is comprised of either or both of them, each individual
executing this Amendment for the corporation or partnership represents that he
or she is duly authorized to execute and deliver this
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Amendment on behalf of the corporation or partnership and that this Amendment
is binding upon the corporation or partnership in accordance with its terms.
F. ATTORNEYS' FEES. The provisions of the Lease respecting payment of
attorneys' fees shall also apply to this Amendment.
V. EXECUTION.
Landlord and Tenant executed this Amendment on the date as set forth in "I.
PARTIES AND DATE." above.
LANDLORD: TENANT:
THE IRVINE COMPANY NETRATINGS, INC.
By /s/ William R. Halford By /s/ Jack Lazar
---------------------------------- ----------------------------
William R. Halford, President,
Irvine Office Company, Title Vice President and CFO
a division of The Irvine Company ----------------------------
By /s/ Richard G. Sim By /s/ Stephen Gross
---------------------------------- ----------------------------
Richard G. Sim
President Title Vice President, Finance
----------------------------
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