California-Concord-1855 Gateway Boulevard Lease - Sierra Pacific Properties Inc. and Bay Area Seating Services Inc. dba BASS Ticketmaster
TABLE OF CONTENTS
Lease between Sierra Pacific Properties, Inc. as Lessor, and Bay Area Seating
Service, Inc., dba BASS Ticketmaster, as Lessee.
BASIC LEASE DOCUMENT
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Paragraph Subject Page
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1 Fundamental Lease Provisions 1
2 Premises 2
3 Term 2
4 Base Rent 3
5 Additional Rent 3
6 Security Deposit 8
7 Construction and Acceptance of Premises 8
8 Holding Over 8
9 Use of Premises 9
10 Taxes of Tenant's Property 9
11 Alterations 10
12 Maintenance and Repairs 11
13 Liens 11
14 Building Services 12
15 Rights of Landlord 13
16 Indemnification and Waiver 14
17 Insurance 15
18 Waivers of Subrogation 16
19 Damage or Destruction 17
20 Eminent Domain 19
21 Default 19
22 Assignment and Subletting 22
23 Subordination 25
24 Estoppel Certificate 25
25 Interest on Past Due Obligation 26
26 Sale or Transfer by Landlord 26
27 Landlord's Right to Cure Defaults 27
28 Waiver 27
29 Force Majeure 27
30 Relocation 28
31 Parking 28
32 Surrender of Premises 29
33 Miscellaneous 31
LEASE ADDENDUM
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LEASE EXHIBITS
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A Space Plan
B Work Letter
C Rules and Regulations
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This Lease ("Lease") is made and executed this twenty-ninth day of
December, 1989, in Concord, Contra Costa County, California, by and between
Sierra Pacific Properties, a California Corporation ("Landlord"), and Bay Area
Seating Service Inc., dba BASS Ticketmaster, A California Corporation,
("Tenant") who agrees as follows:
1. FUNDAMENTAL LEASE PROVISIONS
(a) Premises: Suite No. 600 on the 6th floor constituting
a Rentable Area consisting of 16,532 square feet.
(b) (1) Lease Term: 120 months.
(2) Commencement Date: February 15, 1990, or
upon actual substantial completion of tenant
improvements.
(c) * Base Rent: $17,358.60 per month. *(See addendum)
(d) Tenant's Proportionate Share of total Rentable Area
in Building .05492.
(f) Nature of Tenant's Business or Profession: General
office use, including telephone and computer center.
(g) Address for Rent and Notice:
For Rent: Building office
1850 Gateway Blvd. #200
Concord, CA 94520
(415) 680-1255
For Notices: Sierra Pacific Properties
3890 Railroad Ave.
Pittsburg, California 94565
(415) 427-3700
To Tenant: at premises, also
Harold Silen
591 Redwood Highway, #2375
Mill Valley, CA 94941
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2. PREMISES. In consideration of the Tenant's agreement to pay the
rent, and the covenants and conditions herein contained, Landlord hereby leases
to Tenant and Tenant hereby hires from Landlord, upon the terms and conditions
set forth herein, that certain office space identified in Paragraph (a) of
Article 1, as delineated and shown in the cross-hatched area on the plan
designated as Exhibit A attached hereto and incorporated by reference (herein
referred to as the "Premises") in the building known as CONCORD GATEWAY (herein
referred to as the "Building") the address of which is 1855 Gateway Boulevard,
Concord, California. The Rentable Area of the Premises ("Rentable Area"), as
provided in Paragraph (a) of Article I, shall be determined in accordance with
the BOMA (Building Owners and Managers Association) standard method of
measurement.
Tenant also acknowledges that Landlord has made no
representation or warranty regarding the condition of the Premises or the
Building except as specifically set forth herein.* see attached page 2a.
3. TERM. (a) In General, Commencement. The term of this Lease shall be
that period set forth in Paragraph (b)(1) of Article 1 hereof. The term shall
commence on the Commencement Date set forth in Paragraph (b)(2) of Article 1
hereof, on which date Landlord shall deliver the Premises to Tenant.
**
(b) Delay. If Landlord, for any reason within the sole control
of Landlord, cannot deliver possession of the Premises to Tenant on or prior to
the fixed date set forth herein, Tenant's obligation to pay rent and Additional
Charges shall be delayed until such time as the Premises are delivered to
Tenant. In the event of any such delay, neither the validity of this Lease nor
the obligations of Tenant under this Lease shall be affected by such failure to
deliver possession and postponement of Tenant's rental obligation prior to
delivery of possession of the Premises to Tenant shall be in sole satisfaction
of all claims Tenant might otherwise have by reason of the Premises not being
delivered on the date set forth herein. If Tenant takes possession of all or any
part, of the Premises prior to the date the Premises are delivered, all terms
and provisions of this Lease shall apply, including the obligation for the
payment of all rents and other amounts owing hereunder.
(c) Early Possession. If Tenant, with Landlord's consent,
takes possession of the Premises prior to the Commencement Date, Tenant shall be
subject to all the covenants and conditions hereof, and shall pay rent at the
monthly rate prescribed for the first month of the term, prorated on the basis
of a thirty (30) day month, for the period beginning with the taking of
possession and ending with the Commencement Date.
** In the event Landlord is unable to deliver premises substantially
complete and ready for occupany, unless due to reasons for delay caused
by tenant, by March 1st, 1990, then tenant shall receive rent credit
equal to 1 1/2 days for every day delayed past March 1st, 1990.
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(a) Landlord represents and warrants to Tenant that, to the best of
Landlord's knowledge after due inquiry, (i) there is no asbestos or
asbestos-containing materials located in or on any part of the Building
or Land and (ii) there are no hazardous substances or hazardous
materials (as such terms are defined under applicable federal, state
and/or local law) in, on or under the Building and/or the Land. In the
event of a breach of the warranty set forth in the preceding sentence,
Tenant shall have the right ot terminate this Lease on prior written
notice to Landlord and Landlord's failure to cure such breach within
ninety (90) days after Landlord's receipt of such notice from Tenant,
and Tenant shall have the right to recover from Landlord all direct
damages (but not indirect or consequential damages) arising out of or
resulting from Landlord's breach of the representations and warranties
set forth in the first sentence of this Article. In addition, Landlord
agrees to indemnify and forever hold Tenant, its successors and
assigns, harmless from and against al direct damages (but not indirect
or consequential damages), liabilities, claims, costs and expenses
(including, without limitation, court costs and reasonable attorneys'
fees) that result from a breach of any of the representations and
warranties set forth in the first sentence of this subparagraph
(b) If Tenant shall discover or ascertain that the Building or the Land
contains asbestos or asbestos-containing materials or any other
hazardous substance or hazardous material (as such terms are defined
from time to time under applicable federal, state and/or local law) but
that Landlord has not breached any of its representations and
warranties set forth in the first sentence of subparagraph and if the
asbestos, asbestos-containing materials, hazardous material or
hazardous substance, as the case might be, could have an adverse effect
on the health, safety or welfare of Tenant or any employee, invitee,
guest or licensee of Tenant, then Tenant shall have the right ot
terminate this Lease on prior written notice to Landlord and Landlord's
failure to cure such breach within one hundred eighty (180) days after
Landlord's receipt of such notice from Tenant, and Tenant shall have
the right to recover all direct damages (but not indirect or
consequential damages) arising out of or resulting from the presence of
such asbestos, asbestos-containing materials, hazardous material or
hazardous substance in, on or under the Land on the Building. In
addition, in such instance Landlord agrees to indemnify and forever
hold Tenant, its successors and assigns, harmelss from and against all
direct damages (but not indirect or consequential damages),
liabilities, claims, costs and expenses (including, without limitation,
court costs and reasonable attorneys' fees) that result therefrom.
(c) As used in this Lease Agreement, the term "Land" shall mean the land
underlying the Building, the parking deck and the parking facilities
serving the Building, and all other common areas of the Building.
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(d) Failure to Take Possession. Tenant's inability or failure
to take possession of the Premises when delivered by Landlord shall not delay
the commencement of the term of this Lease or Tenant's obligation to pay rent.
Tenant acknowledges that Landlord has and shall continue to incur significant
expenses as a consequence of the making of this Lease, including without
limitation, the cost of carrying vacant space in the Building, brokerage
commissions and fees, legal and architectural fees, the cost of space planning
and the costs of construction of improvements to the Premises. All of said
expenses shall be deemed included in measuring Landlord's damages should Tenant
fail to take possession of the Premises when required under the terms of this
Lease, although such expenses shall not be duplicative of the items of damage to
which Landlord may otherwise be entitled under Section 21(b)(1)(iv) hereof.
4. BASE RENT. Tenant covenants to pay to Landlord during the term
hereof, at Landlord's office at the address set forth in Paragraph (g) of
Article 1 hereof or to such other persons or at such other places as directed
from time to time by written notice to Tenant from Landlord, a monthly rental
(hereinafter referred to as the "Base Rent") in the amount set forth in
Paragraph (c) of Article 1 hereof (subject to adjustment as hereinafter
provided) due and payable without demand or offset or deduction, in advance on
the first day of each calendar month; except that if Commencement Date occurs on
a day other than the first day of a calendar month, then the Base Rent for the
fraction of the month starting with the Commencement Date shall be paid on such
Commencement Date, prorated on the basis of a thirty (30) day month.
5. ADDITIONAL RENT. Landlord hereby agrees to pay Landlord's Base Costs
for Operating Costs and Taxes (as defined herein). It is understood that the
Base Rent specified in Paragraph (c) of Article 1 and more fully described in
Article 4 of
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this lease, above, does not contemplate Landlord paying amounts in excess of
Landlord's Base Costs for Operating Costs and Taxes. Therefore, in order that
the rental payable throughout the term of this Lease shall reflect any such
excess amounts, the Base Rent payable by Tenant pursuant to Article 4, above,
shall be augmented by "Additional Rent" in accordance with the provisions of
this Article 5.
(a) Definitions
(1) The term "Landlord's Base Costs" shall mean the amount
which is derived by multiplying the Rentable Area of the Premises times twelve
(12), times the cost (i.e., Operating Costs and taxes) per square foot of
Rentable Area per month as shall actually be incurred by Landlord during the
calendar year in which the Commencement Date occurs.
(2) The term "Operating Costs' shall mean the sum of all
expenses paid or incurred by Landlord during any calendar year of the term
hereof in connection with the operation, maintenance, insurance (including
earthquake insurance),** management and repair of the Building, including
parking facilities and both interior and adjacent landscaped area; provided,
however, that the term "Operating Costs" shall include Landlord's taxes as that
term is defined herein, the costs of special services rendered to tenants
(including Tenant) for which a special charge is made hereunder, any costs of
preparation or leasing of space for new tenants in the Building or any costs
borne directly by Tenant under this Lease.
By way of example, Operating Costs shall include without
limitation: all expenses paid or incurred by Landlord during any calendar year
of the term hereof for electricity, water, gas and sewers, and similar utilities
services in connection with the operation of the Building, and for utility
taxes, charges or other similar impositions paid or incurred by Landlord in
connection therewith; maintenance and repair of HVAC, electrical and plumbing;
salaries, wages, bonuses, medical, surgical and general welfare benefits and
pension payments, payroll taxes, workmen's compensation, uniforms, and dry
cleaning thereof for employees engaged in the operation, maintenance, and repair
of the Building, parking facilities and both interior and adjacent landscaped
areas; the cost of all premiums for property damage, liability, and all other
insurance for the Building, parking facilities and both interior and adjacent
landscaped areas to the extent that such insurance is required to be carried by
Landlord under any lease, mortgage or deed of trust covering the whole or a
substantial part of the real property of which the Premises are a part, or, if
not required under any such lease, mortgage or deed of trust, then to the extent
such insurance is carried by owners of buildings comparable to the Building; the
cost of all building and cleaning supplies and materials; the cost of all
**Unless earthquake insurance is included in tenant's Base Year operating costs,
then no earthquake insurance placed in subsequent years during tenancy of tenant
shall be passed onto tenant as operating costs.
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charges for cleaning, maintenance, and service contracts and other other
services with independent contractors; the cost of periodic maintenance repair
and restoration of elevators, Building surfaces, including paint, floor and wall
coverings, and other surface materials on the exterior of the Building and in
both interior and exterior common areas (including the atriums), as well as
repaving and restriping of the parking facilities; and the cost of all
professional services and management fees.
Operating Costs shall not include initial construction
costs required to be capitalized for federal income tax purposes; provided,
however, that if Landlord installs equipment or materials or makes other capital
improvements to the Building, parking facilities or adjacent landscaped area, or
are required to comply with present or anticipated energy conservation programs,
earthquake damage prevention programs, or are required pursuant to any future
law or regulation of any governmental entity, the cost: of such installation, or
allocable portion thereof to be amortized over such reasonable period as
Landlord shall determine, together with interest at the rate of 10% per annum of
such higher rate as was actually paid or would have been paid by Landlord on
funds borrowed for the purpose of constructing such capital improvements, shall
be considered Operating Costs. Operating Costs shall not include, either,
interest or amortization paid in connection with any loan or loans secured by
the real property of which the Premises are a part; provided, however, that if
Landlord's interest costs exceed 15% per annum, such excess shall be considered
Operating Costs.
(3) The term "Taxes" shall mean all real property taxes,
and personal property taxes, charges and assessments which are levied, assessed
upon or imposed by any governmental authority or political subdivision thereof
during any calendar year of the term thereof with respect to the Building and
the land of which the Building is located and any improvements, fixtures, and
equipment and all other property of Landlord, real or personal, and used in
connection with the operation of the Building, parking facilities and adjacent
landscaped areas (computed as if paid in permitted installments regardless of
whether actually so paid) and any tax which shall be levied or assessed in
addition to or in lieu of such real or personal property taxes (including,
without limitation, any municipal income tax), and any license fees, tax
measured by or imposed upon rents, or other tax or charge upon Landlord's
business of leasing the Premises, or other parts of the Building, but shall not
include any federal or state income tax, or any franchise, capital stock, estate
or inheritance taxes. All assessments, taxes, fees, levies and charges imposed
by governmental agencies for services such as child care facilities, promotion
of the arts, transportation, fire protection, street, sidewalk and road
maintenance, refuse removal
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and other public services generally provided without charge to owners or
occupants prior to the adoption of Proposition 13 by the voters of the State of
California in the June, 1978, election, also shall be deemed included within the
definition of "Taxes" for the purpose of this Lease.
(4) The Term "Estimated Operating Costs" shall mean the
annual estimates of Tenant's Proportionate Share of Operating Costs for each
calendar year, after the first calendar year, to be given by Landlord to Tenant
pursuant to the terms hereof.
(5) The term "Estimated Taxes" shall mean the annual
estimates of Tenant's Proportionate Share of Landlord's Taxes for each calendar
year, after the first calendar year, to be given by landlord to Tenant pursuant
to the terms hereof.
(6) The term "First Calendar year" shall mean the calendar
year in which the Commencement Date occurs.
(7) The term "Tenant's Proportionate Share" shall mean the
proportion of the Rentable Area of the Premises to the Rentable Area of the
Building, which for this Lease is agreed by Landlord and Tenant to be the
percentage set forth in Paragraph (d) of Article 1 hereof.
(b) Payment of Operating Costs and Taxes in Excess of
Landlord's Base Cost.
Tenant shall pay to Landlord, as additional rent, the
following amounts in the manner specified:
(1) For each calendar year following the first calendar
year, Landlord shall furnish to Tenant prior to January 1, a written statement
showing in reasonable detail the Estimated Operating Costs and the Estimated
Taxes for the next forthcoming calendar year. At the first monthly rent payment
date for the next calendar year following Tenant's receipt of such statement
(the "then current calendar year") and at each of the other monthly rent payment
dates for such then current calendar year, Tenant shall pay to Landlord as
additional rent, one-twelfth (1/12th) of the amount equal to the difference
between the sum of the Estimated Operating Costs and Estimated Taxes for the
then current calendar year, and Landlord's Base costs; provided, however, that
in no event shall Tenant receive a credit for any total amount calculated
hereunder to be less than Landlord's Base Costs. In the event of the inability
of Landlord for any reason to furnish said statement prior to January 1, as
described above, Tenant shall pay, at the monthly rent payment date next
following Tenant's receipt of said statement, any additional rental which shall
have accrued.
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(2) On or before March 15, (or as soon thereafter as
possible) in each calendar year commencing with the second calendar year after
the calendar year in which the Commencement Date occurred, Landlord shall
furnish to Tenant a written statement showing in reasonable detail the Operating
Costs and Taxes for the preceding calendar year. At the monthly rent payment
date next following Tenant's receipt of such statement, Tenant shall pay to
Landlord as additional rent, in the event of an increase, or Landlord shall pay
to Tenant, in the event of a decrease, an amount equal to the excess of Tenant's
Proportionate Share of the sum of the Operating Costs and Taxes for the
preceding calendar year, over Tenant's Proportionate Share of the sum of the
Estimated Operating Costs and Estimated Taxes previously given for such year;
provided, however, that in no event shall Tenant receive a credit as provided
herein for any total amount calculated hereunder to be less than Landlord's Base
Costs.
(c) Payments of Additional Rent.
(1) Notwithstanding any other provision of this Article to
the contrary, it is agreed that in the event that the Building is less than
ninety percent (90%) occupied during any calendar year, *an adjustment shall be
made in the computation of all additional rent hereunder to reflect at least an
ninety percent (90%) occupancy of the total Rentable Area of the Building. The
Operating Costs and Taxes for such year shall be deemed to be the amount of
Operating Costs and Taxes which, in the opinion of Landlord's certified public
accountant, would have been incurred if ninety percent (90%) of the Rentable
Area of the Building had been leased.
(2) The determination of Tenant's Proportionate Share of a
cost hereunder shall be made by Landlord. A statement of such determination
shall be made available to Tenant upon demand. Landlord's estimates shall be
based upon Landlord's experience with actual costs and reasonable projections.
(3) The Rentable Area of the Premises shall be subject to
verification by Landlord's project architect, whose reasonable determination
shall be conclusive and binding on the parties. In the event that Landlord's
project architect shall determine that the Rentable Area is more or less than
the Rentable Area set forth in Paragraph (a) of Article 1 hereof, then the Base
Rent shall be adjusted to the product which is the result of multiplying the
Base Rent by a fraction, the numerator of which is the verified Rentable Area of
the Premises, and the denominator of which is the approximate Rentable Area set
forth in Paragraph (a) of Article 1 hereof. Such adjustment shall be confirmed
in writing by the parties promptly upon such verification, and thereupon such
written confirmation shall be attached hereto and the Base Rent set forth in
Paragraph (c) of Article 1 hereof adjusted, accordingly.
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7. CONSTRUCTION AND ACCEPTANCE OF PREMISES. The Premises have been
constructed by Landlord. Absent written notice from Tenant to Landlord within
fifteen (15) days after occupancy execution of this Lease, there shall be a
conclusive presumption that the Premises are in good and tenantable condition.**
8. HOLDING OVER. Should Tenant, with or without Landlord's written
consent, hold over after the termination of this Lease, such possession by
Tenant shall be deemed to be a month-to-month tenancy terminable by thirty (30)
days' notice given at any time, upon each and all of the terms herein provided
as may be applicable to a month-to-month tenancy and any such holding over shall
not constitute an extension of this Lease. During such holding over, Tenant
shall pay in advance, monthly rent equal to 125% of the current rent at the time
of termination of the lease. There shall be no adjustment in the Base Costs from
** Tenant shall have 30 days to submit punchlist items to Landlord, after which
Landlord shall use due diligence to complete punchlist items in a timely
manner.
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which Operating Costs are calculated during any holding over period. The
foregoing provisions of this Article are in addition to and do not affect
Landlord's right of re-entry or any other rights of Landlord hereunder or as
otherwise provided by law.
9. USE OF PREMISES. *including telephone computer center
(a) The Premises shall be used and occupied by Tenant for
general office purposes* unless the premises are located on the first floor of
the building in which event they may be used for retail sales or in connection
with the business or profession described in Paragraph (f) of Article 1 hereof,
and for no other purpose without the prior written consent of Landlord. The
granting or withholding of such consent shall be at the sole discretion of
Landlord.
(b) Tenant acknowledges that neither Landlord nor any agent of
Landlord has made any representation or warranty with respect to the Premises or
the Building or with respect to the suitability of either for the conduct of
Tenant's business, nor has Landlord agreed to undertake any modification,
alteration or improvement to the premises except as provided in this Lease.
(c) Any use of the Premises in violation of the Rules and
Regulations hereinafter described in Article 33(h) is expressly prohibited.
(d) The judgment of any court of competent jurisdiction or the
admission of Tenant in any action against Tenant, whether Landlord be a party
thereto or not, that Tenant has violated any law, statute, ordinance or
governmental rule, regulation or requirement, shall be conclusive of the fact as
between Landlord and Tenant.
10. TAXES ON TENANT'S PROPERTY.
(a) Tenant shall be liable for and shall pay before
delinquency taxes, assessments, license fees, and other similar charges levied
against any personal property or trade fixtures placed by Tenant or at Tenant's
direction in or about the Premises. On demand by Landlord, Tenant shall furnish
Landlord with satisfactory evidence of these payments. If any such taxes on
Tenant's personal property or trade fixtures are levied against Landlord or
Landlord's property or if the assessed value of Landlord's Premises is increased
by the inclusion therein of a value placed upon such personal property or trade
fixtures of Tenant and if Landlord, after written notice to tenant, pays such
taxes based upon such increased assessment, which Landlord shall have the right
to do regardless of the validty thereof, but only under property protest if
required by Tenant, Tenant shall, within ten (10) days of written demand,
reimburse Landlord for the taxes so levied against Landlord, or the proportion
of such taxes resulting from such increase in the assessment; provided that, in
any such event, Tenant shall have the right, in the name of Landlord and with
Landlord's full cooperation, to bring suit in
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any court of competent jurisdiction to recover the amount of any such taxes so
paid under protest, and any amount so recovered shall belong to Tenant.
(b) If the "Tenant Improvements" in the Premises, whether
installed and/or paid for by Landlord or Tenant and whether or not affixed to
the real property so as to become a part thereof, are assessed for real property
tax purposes at a valuation higher than the valuation at which Tenant
Improvements conforming to Landlord's "Tenant Standard Improvements" in other
space in the Building are assessed, then the real property taxes and assessment
levied against Landlord or the Building by reason of such excess assessed
valuation shall be governed by the provisions of Paragraph (a) above. If the
record of the County Assessor are available and sufficiently detailed to serve
as a basis for determining whether said Tenant Improvements are assessed at a
higher valuation than Landlord's Tenant Standard Improvements, such records
shall be binding on both the Landlord and the Tenant. If the records of the
County Assessor are not available or sufficiently detailed to serve as a basis
for making said determination, the actual costs of construction shall be used.
11. ALTERATIONS. Tenant shall make no alterations, decorations,
additions or improvements in or to the Premises without Landlord's prior written
consent, and then only by contractors or mechanics approved by Landlord. All
such work shall be done at such times and in such manner as Landlord may from
time to time designate. Tenant covenants and agrees that all work done by or
pursuant to the direction and instruction of Tenant shall be performed in full
compliance with all laws, rules, orders, ordinances, directions, regulations and
requirements of all governmental agencies, offices, departments, bureaus and
boards having jurisdiction, and in full compliance with the rules, orders,
directions, regulations and requirements of the Insurance Service Office, and of
any similar body. Before commencing any work, Tenant shall give Landlord at
least twenty-one (21) days written notice of the proposed commencement of such
work and shall, if required by Landlord, secure at Tenant's own cost and
expense, a completion and lien indemnity bond, satisfactory to Landlord, for
said work. Landlord shall have the right at all times to post notices of
non-responsibility on the Premises and record verified copies thereof in
connection with all work of any kind upon the Premises., All alterations,
decorations, additions or improvements upon the Premises, made by Tenant,
including without limitation wall coverings, draperies, floor coverings,
built-in cabinet work, paneling and the like (but excluding Tenant's trade
fixtures, if any, equipment and furnishings) shall become the property of
Landlord upon expiration or sooner termination of this Lease, and shall remain
upon and be surrendered with the Premises as part thereof, except that Landlord
may, by written notice to Tenant, given at lest thirty (30) days prior to the
end of the term, require Tenant to remove all partitions, counters, railings and
the like installed by or pursuant to the direction and instruction of Tenant,
and Tenant shall repair the Premises
** Any items of alteration submitted by Tenant and approved by Landlord that
require removal from premises upon expiration of lease shall be identified
by Landlord at time of initial approval by Landlord.
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At Tenant's cost or, at Landlord's option, shall pay to Landlord all costs
arising from such removal.
12. MAINTENANCE AND REPAIRS.
(a) Tenant shall at Tenant's sole cost and expense keep the
Premises in good condition and repair; damage thereto from causes beyond the
reasonable control of Tenant and ordinary wear and tear excepted. All damage or
injury to the Premises or the Building in which the same are located, caused by
the act or negligence of Tenant, its employees, agents or visitors, shall be
promptly repaired by Tenant at its sole cost and expense, to the satisfaction of
Landlord. Landlord may make any repairs which are not promptly made by Tenant
and charge Tenant for the cost thereof. Tenant shall upon the expiration of
sooner termination of the term hereof surrender the Premises to Landlord in the
same condition as when construction of Tenant Improvements was completed,
ordinary wear and tear and damage from causes beyond the reasonable control of
Tenant excepted. Landlord shall have no obligation to shampoo or replace the
carpeting or draperies of the Premises during the term or any extension thereof.
Landlord shall have no obligation to alter, remodel, improve, repair, decorate,
or paint the Premises or any part thereof, and the parties hereto affirm that
that Landlord has made no representations to Tenant respecting the condition of
the Premises or the Building except as specifically herein set forth.
(b) Anything contained in the foregoing Paragraph (a) to the
contrary notwithstanding, Landlord shall repair and maintain the structural
portions of the Building, including the basic plumbing, air conditioning, and
electrical systems installed or furnished by Landlord. If such maintenance and
repairs are caused in part or whole by the act, neglect, fault or omission of
any duty by Tenant, its agents, servants, employees or visitors, Tenant shall
pay to Landlord upon demand the reasonable cost of such maintenance and repairs.
Landlord shall not be liable for any failure to make any such repairs or to
perform any maintenance unless such failure shall persist for an unreasonable
time after written notice of the need of such repairs or maintenance is given to
Landlord by Tenant. Except as provided in Article 19 hereof, there shall e no
abatement of rent and no liability of Landlord by reason of any injury to or
interference with Tenant's business arising from the making of any repairs,
alterations, or improvements in or to any portion of the building or the
Premises or in or to fixtures, appurtenances, and equipment therein. Tenant
waives the right to make repairs at Landlord's expense under Subsection 1 of
Section 1932, Sections 1941 and 1942 of the California Civil Code, or any other
such law, statute, or ordinance now or hereafter in effect.
13. LIENS. Tenant shall keep the Premises, the Building, and the
property upon which the Building is situated, free from any liens arising out of
the work performed, materials
* Landlord agrees that during Landlord's normal hours of operation, the HVAC
system serving the premises shall keep the temperature in the premises at not
more than 76 degrees Fahrenheit and no less than 68 degrees Fahrenheit, unless
such temperature levels are not maintained because of heat generating
equipment of Tenant (other than customary office equipment), improper design
of the space configuration or HVAC equipment, obstruction by tenant's
furniture or equipment, failure by tenant to use building standard window
coverings to reduce solar load, or because of outside temperatures in excess
of 95 degrees Fahrenheit or lower than 10 degrees Fahrenheit.
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furnished, or obligations incurred by Tenant. Tenant further covenants and
agrees that should any mechanic's lien be filed against the Premises or against
the Building for work claimed to have been done for, or materials claimed to
have been furnished to Tenant, said lien will be discharged by Tenant, by bond
or otherwise, within ten (10) days after the filing thereof, at the cost and
expense of Tenant.
14. BUILDING SERVICES. Provided that Tenant is not in default
hereunder, Landlord agrees to furnish to the Premises, at its expense, during
standard business hours, Monday through Friday, (generally recognized holidays
excepted), and subject to the Rules and Regulations described in Exhibit "B"
hereof, air conditioning and heat, elevator service, electric current for normal
lighting and fractional horsepower office mahcines and, on the same floor as the
Premises, water for lavatory and drinking purposes, all in such reasonable
quantities, in the judgment of Landlord, as are necessary for the comfortable
occupancy of the Premises. Janitorial and maintenance services will be furnished
***five (5) days per week. Janitorial services shall include only ordinary
dusting and cleaning and shall not include shampooing of carpets or rugs,
cleaning of draperies or furniture, or other unusual services. Landlord may
impose a reasonable additional charge for the usage of any additional or unusual
janitorial services required because of any unusual Tenant Improvements in the
Premises, the carelessness of Tenant, the unusual nature of Tenant's business
and the removal of any refuse and rubbish from the Premises other than discarded
material placed in waste paper baskets and left for emptying as an incident to
Tenant's normal cleaning of the Premises. Tenant shall comply with all rules and
regulations which Landlord may reasonably establish for the proper functioning
and protection of the air conditioning, heating, elevator and plumbing system.
Landlord shall not be liable for and Tenant shall not be entitled to any
abatement or reduction of rent by reason of Landlord's failure to furnish any of
the foregoing when such failure is caused by riot, strike, labor disputes of any
character, breakdowns, necessary repairs, breakage, accidents, the
unavailability of natural or other energy resources, or other cause beyond
Landlord's reasonable control. **Without the prior written consent of Landlord,
Tenant shall not use any apparatus or device in the Premises, including without
limitation, electronic data processing machines, punch card machines and
machines using current in excess of 110 volts, which may increase the amount of
the electricity, air conditioning, heat or water which would otherwise be
furnished or supplied under this Article 14 for the intended use of the
Premises; and Tenant will not connect with electric current, except through
existing electrical outlets in the Premises, or with water pipes, any apparatus
or device which uses electric current or water. Except as specifically provided
in this Article 14, and in addition to rent and other charges required to be
paid by Tenant under this Lease, Tenant agrees to pay for all utilities and
other services utilized by Tenant and for all overtime or additional building
services furnished to Tenant not uniformly furnished to all
** Except for those specified in tenant's initial design and buildout and
pursuant to tenant's existing equipment.
***Janitorial service provided to Tenant's premises shall be performed Monday
through Friday between the hours of 9 p.m. and 12 p.m., with tenant being
provided with extra bathroom supplies and trash compactor access for
weekend operation.
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<PAGE> 15
tenants of the Building. The costs of all building services furnished by
Landlord shall be deemed to be Operating Costs as defined in Paragraph (a)(2) of
Article 5 hereof.
15. RIGHTS OF LANDLORD.
(a) Landlord and its agents shall have the right to enter the
Premises at all reasonable times for the purpose of cleaning the Premises or
examining or inspecting the same, showing the same to prospective tenants,
lenders or purchasers of the building, or in the case of an emergency, and to
make such alterations, repairs, improvements or additions to the Premises or to
the Building of which they are a part as Landlord may deem necessary or
desirable.* If Tenant shall not personally be present to open and permit an
entry into the Premises at any time when such an entry by Landlord is necessary
by reason of emergency or permitted hereunder, Landlord may enter by means of a
master key or pass key or may enter forcibly, without liability to Tenant except
for any failure to exercise due care for Tenant's property, and any such entry
by Landlord shall not under any circumstances be construed or deemed to be a
forcible or unlawful entry into, or a detainer of, the Premises, or an eviction
of Tenant from the Premises or any portion thereof.
(b) In addition to any other rights provided herein, Landlord
shall have the following rights, exercisable in a reasonable manner without
notice to Tenant and without any obligation to exercise such rights: to change
the name or address of the Building or the suite number of the Premises; to
grant to anyone the exclusive right to conduct any business or render any
service in the Building, provided such exclusive right shall not operate to
exclude Tenant from the uses expressly permitted under this Lease; to have
access to all mail chutes, if any, according to the rules of the United States
Postal Service; to require all persons entering or leaving the Building during
such yours as Landlord may from time to time reasonably determine to identify
themselves to a watchman by registration or otherwise, establishing their right
to enter or leave, and at any time to exclude or expel any peddler, solicitor,
or beggar from the Premises or the Building; to close the Building daily at such
reasonable time as Landlord may determine, subject, however, to Tenant's right
to admittance at any time under such reasonable regulations as shall be
prescribed from time to time by Landlord; to reasonably approve the weight, size
and location of safes, vaults, computers, machinery, book shelves and other
heavy equipment and articles in and about the Premises and the Building, and to
require all such items to be moved in and out of the Building or the Premises
only at such times and in such manner as Landlord shall direct, and in all
events at Tenant's sole risk and responsibility; to designate and/or approve,
prior to installation, all types of window shades, blinds, drapes, and other
similar equipment, and to control all internal lighting that may be visible from
the exterior of the Building; to decorate, alter, repair or improve the
Premises,
* with reasonable notice from Landlord
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<PAGE> 16
Building and parking facilities, or maintain any service therein, at any time,
including the erection of scaffolding, props or other mechanical devices; to
shore the foundations, footings and walls of the Building; to do or permit to be
done any necessary work in or about the Premises or the Building or the parking
facilities or any adjacent or nearby land, street or alley. Any rights so
exercised by Landlord shall be without any rebate or abatement of rent to Tenant
for any loss of occupancy or quiet enjoyment of the Premises or damage, injury
or inconvenience thereof occasioned, provided that the business of Tenant shall
be interfered with as little as is reasonably practicable.
(c) If during the last month of the term hereof, Tenant shall
have removed substantially all of its property therefrom, Landlord may
immediately enter and alter, renovate, and redecorate the Premises without
eliminating or abating any rent or incurring any liability to Tenant.
(d) No graphics, log, sign, advertisement, or notice shall be
inscribed, painted, or affixed on any part of the inside or outside of the
Building unless of such color, size and style and in such place upon or in the
Building as shall be first designated by Landlord in writing but there shall be
no obligation or duty on Landlord to allow any sign, advertisement or notice to
be inscribed, pained, or affixed on any part of the inside or outside of the
Building. A directory in a conspicuous place, with names of tenants, will be
provided by Landlord. Any necessary revision in the directory will be made by
Landlord at Tenant's expense within a reasonable time after notice from Tenant
of the change making the revision necessary. No furniture shall be placed in
front of the Building or in any lobby or corridor of the Building (whether
included wholly within the Premises, or otherwise), without the prior written
consent of Landlord. Landlord shall have the right to remove all non-permitted
signs and furniture, without notice to Tenant, at the expense of Tenant. If
Tenant desires additional names to be listed on the Building directory, to the
extent space is available thereon after consideration of other tenants' desires,
Landlord agrees Tenant shall have the right to list such names at Tenant's sole
cost and expense.
16. INDEMNIFICATION AND WAIVER. Tenant hereby agrees to indemnify and
hold Landlord harmless against and from any and all claims of damages or injury
arising from Tenant's use of he Premises, Building common areas and parking
facilities, or the conduct of its business or from any activity, work, or thing
done, permitted or suffered by Tenant and in the Premises, Building common areas
and parking facilities, and shall further indemnify and hold harmless Landlord
against and from any and all claims arising from any breach or default in the
performance of any obligation on Tenant's part to be performed under the terms
of this Lease, or arising from any act, neglect, fault, or omission of the
Tenant, or of its agents, employees, visitors, invitees, or licensees, and from
and against all costs, attor-
14
<PAGE> 17
neys' fees, expenses and liabilities incurred in or about any such claim or any
action or proceeding brought thereon; and in case any action or proceeding be
brought against Landlord by reason of such claim, Tenant, upon notice from
Landlord, shall defend the same at Tenant's expense by counsel reasonably
satisfactory to Landlord. Tenant, as a material part of the consideration to
landlord, hereby assumes all risk of damage to Tenant's property or injury to
Tenant's employees, agents, visitors, invitees and licensees in or upon the
Premises, Building and parking facilities; from any cause whatsoever, and Tenant
hereby waives all claims in respect thereof against Landlord except, any claims
which are caused by the failure of Landlord to observe any of the terms and
conditions of this Lease, (and such failure has persisted for an unreasonable
period of time after written notice of such failure) and those which arise from
any neglect, fault or omission of the Landlord, or of its agents, or employees.
Land-**lord shall not be liable to Tenant for any unauthorized or criminal entry
of third parties into the Premises, Building, or parking facilities or for any
death or bodily injury to persons or damage to property, or loss of property in
and about the Premises, Building, parking facilities and the approaches,
entrances, streets, sidewalks or corridors thereto, by or from any unauthorized
or criminal acts of third parties, regardless of any breakdown, malfunction or
insufficiency of the security measures, practices or equipment provided by
Landlord. Tenant shall immediately notify Landlord in writing of any breakdown
or malfunction of the security measures, practices or equipment provided by
Landlord as to which Tenant has knowledge. Landlord shall not be liable to
Tenant for interference with the light or other incorporeal hereditaments or for
any damage therefrom to Tenant or Tenant's property from any cause beyond
Landlord's reasonable control. Tenant waives all claims against Landlord for
damage to persons or property for any reason unless caused by or due to the
active negligence of Landlord, its agents, servants, or employees.
17. INSURANCE.
(a) All insurance required to be carried by Tenant hereunder
shall be issued by responsible insurance companies, qualified to do business in
the State of California, acceptable to Landlord and Landlord's lender. Each
policy shall name Landlord, and at Landlord's request any mortgagee of Landlord,
as an additional insured, as their respective interests may appear, and copies
of all policies or certificates evidencing the existence and amounts of such
insurance shall be delivered to Landlord by Tenant at least ten (10) days prior
to Tenant's occupancy of the Premises. No such policy shall be cancellable
except after ten (10) days prior written notice to Landlord and Landlord's
lender. Tenant shall furnish Landlord with renewals or "binders" of any such
policy at least ten (10) days prior to the expiration thereof. Tenant agrees
that if Tenant does not take out and maintain such insurance, Landlord may (but
shall not be required to) procure said insurance on Tenant's behalf and
** except for gross negligence by Landlord, its agents, or employees
15
<PAGE> 18
charge the Tenant the premiums together with a twenty-five percent (25) handling
charge, payable upon demand. Tenant shall have the right to provide such
insurance coverage pursuant to blanket policies obtained by the Tenant provided
such blanket policies expressly afford coverage to the Premises and to Tenant as
required by this Lease.
(b) At all times during the terms hereof, Tenant shall
maintain in effect policies of property damage insurance covering (1) all
leasehold improvements (including any alterations, additions or improvements as
may be made by Tenant pursuant to provisions of Article 11 hereof) and in which
Tenant may have an insurable interest, and (2) trade fixtures, merchandise and
other personal property from time to time in, on or upon the Premises, in an
amount not less than one hundred percent (100)%) of their actual replacement
cost from time to time during the term of this Lease, providing protection
against any peril included within the classification "Fire and Extended
Coverage" together with insurance against sprinkler damage, vandalism and
malicious mischief. The proceeds of such insurance shall be used for the repair
or replacement of the property so insured. Upon termination of this Lease
following a casualty as set forth herein, the proceeds under (1) shall be paid
to Landlord, and the proceeds under (2) above shall be paid to Tenant.
(c) Tenant shall, at all times during the term hereof and at
its own cost and expense, procure and continue in force comprehensive general
liability insurance for bodily injury and property damage, adequate to protect
Landlord against liability for injury to or death of any person, arising in
connection with the use, operation or condition of the Premises. Such insurance
at all times shall be in an amount of not less than a combined single limit of
Two Million Dollars ($2,000,000), insuring against any and all liability of the
insured with respect to said Premises or arising out of the use or occupancy
thereof.
(d) Not less than every two and one-half (2-1/2) years during
the term of this lease, Tenant and Landlord shall agree in writing on the full
replacement cost of the leasehold improvements pursuant to Article 17(b), above.
If, in the opinion of the Landlord or Landlord's lender, the amount or type of
public liability and property damage insurance coverage, or any other amount or
type of insurance at that time is not adequate or not provided for herein,
Tenant shall either acquire or increase the insurance coverage as required by
either Landlord or Landlord's lender.
18. WAIVERS OF SUBROGATION. Each of the parties hereby waives any and
all rights to recovery against the other or against any other tenant or occupant
of the Building, or against the officers, employees, agents, representatives,
customers, and business visitors of such other party or of such other tenant or
occupant of the Building, for loses or damage to such waiving party or its
property or the property of others under its con-
16
<PAGE> 19
trol, arising from any cause insured against under the standard form of property
damage insurance policy with all permissible extensions and endorsements
covering extended perils or under any other policy of insurance carried by such
waiving party in lieu thereof. Such waiver shall be effective only so long as
the same is permitted by each party's insurance carrier without payment of any
additional premium.
19. DAMAGE OR DESTRUCTION.
(a) In the event the Building in which the Premises are
located is damaged by any peril included within the classification Fire and
Extended Coverage Insurance:
(i) In the event of total destruction of the Building,
this Lease shall automatically be terminated as of the date of such casualty.
(ii) In the event of partial destruction of the Building,
or of total or partial destruction of the Premises, Landlord shall be
responsible for repairing or restoring such damage, except in the circumstances
hereinafter provided. If the Premises or the Building are damaged and (a) the
repair or restoration thereof, in Landlord's opinion, cannot be completed within
one-hundred twenty (120) days of commencement of repair or restoration; (b) the
repair or restoration is not covered by insurance, or the estimated cost thereof
exceeds the insurance proceeds available for repair or restoration plus any
amount which Tenant is obligated or elects to pay for such repair or
restoration; or (c) the estimated cost of repair or restoration of the Premises
or Building exceeds twenty-five percent (25%) of the full replacement cost of
the Premises or of the Building, as the case may be; or (d) Landlord elects to
rebuild the Building in a substantially different structural or architectural
form than existed before the damage and destruction, Landlord shall have the
option to either terminate this Lease or to repair or restore the Premises or
the Building. In the event that Landlord elects to terminate this Lease,
Landlord shall give notice to Tenant within sixty (60) days after the occurrence
of such damage, terminating this Lease as of the date specified in such notice,
which date shall be not less than thirty (30) nor more than sixty (60) days
after the giving of such notice. In the event such notice is given, this Lease
shall expire and all interest of Tenant in the Premises shall terminate on the
date specified in the notice, and the rent (abated proportionately in the ratio
in which Tenant's use of said Premises has been impaired since the date of such
partial destruction of the Building or of the Premises) shall be paid up to the
date of termination. Landlord shall refund to Tenant the rent theretofore paid
for any period of time subsequent to such date.
(b) Upon any termination of this Lease under any of the
provisions of this Article, the parties shall be released thereby without
further obligation to the other from the date
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<PAGE> 20
possession of the Premises is surrendered to the Landlord, except for items
which have theretofore accrued and are then unpaid.
(c) In the event Landlord repairs or restores as herein
provided, the rental to be paid under this Lease shall be abated proportionately
in the ratio which the Tenant's use of said Premises has been impaired since the
date of such partial destruction of the Building or of the Premises. The Tenant
shall not be entitled to any compensation or damages from Landlord for loss of
the use of the whole or any part of said Premises or for any inconvenience or
annoyance occasioned by any such damage, repair or restoration.
(d) Notwithstanding any destruction or damage to the Premises
or the Building, including the parking facilities and interior and adjacent
landscaped areas, Tenant shall not be released from any of its obligations under
this Lease except to the extent and upon the conditions expressly stated in this
Article. Notwithstanding anything to the contrary contained in this Article,
should Landlord be delayed or prevented from repairing or restoring said damaged
premises for one (1) year after the occurrence of such damage or destruction by
reason of acts of God, war, governmental restrictions, inability to procure the
necessary labor or materials, or other cause beyond the control of Landlord, the
Landlord and the Tenant shall each have the right to terminate this Lease,
effective upon thirty (30) days prior written notice, so long as said damaged
Premises shall still have not substantially been repaired or restored.
(e) In the event of partial destruction of the Premises or the
Building due to any cause other than a peril included within the classification
Fire and Extended Coverage Insurance, Landlord may elect to terminate this
Lease.
(f) It is hereby acknowledged that if Landlord is obligated
to, or elects to repair or restore as herein provided, Landlord shall be
obligated to make repairs or restoration only of those portions of said Building
and said Premises which were originally provided at Landlord's expense, and the
repair and restoration of items not provided at Landlord's expense shall be the
obligation of Tenant. Tenant understands that Landlord will not carry insurance
of any kind on Tenant's furniture, furnishings, fixtures or equipment, and that
Landlord shall not be obligated to repair any damage thereto or replace the
same.
(g) Notwithstanding anything to the contrary contained in this
Article, Landlord shall not have any obligation whatsoever to repair or restore
the Premises when the damage resulting from any casualty covered under this
Article occurs during the last twelve (12) months of the term of this Lease or
any extension thereof; provided, however, that Landlord shall give Tenant notice
of such intent within thirty (30) days of the occurrence of such casualty,
whereupon this Lease shall terminate effective as of the date of such casualty
and Landlord shall
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<PAGE> 21
refund to Tenant the rent theretofore paid for any period of time subsequent to
such date.
(h) The provisions of Section 1932, Subdivision 2, and Section
1933, Subdivision 4, of the Civil Code of the State of California, including any
amendments thereto and any other law which may hereinafter be in force during
the term of this Lease which authorizes the termination of the Lease upon the
partial or complete destruction of the Premises, are hereby waived by Tenant.
20. EMINENT DOMAIN. If the whole of the Premises shall be taken, or
such party thereof shall be taken as shall substantially interfere with Tenant's
use and occupancy of the balance thereof, under power of eminent domain, or
sold, transferred, or conveyed in lieu thereof, either Tenant or Landlord may
terminate this Lease as of the date of such condemnation or as of the date
possession is taken by the condemning authority, whichever date occurs later. If
any part of the Building other than the Premises, including parking facilities
and interior and adjacent landscaped areas, shall be so taken, sold, transferred
or conveyed in lieu thereof, Landlord shall have the right, at its option, to
terminate this Lease as of the date of such condemnation or as of the date
possession is taken by the condemning authority. No award for any partial or
entire taking shall be apportioned, and Tenant hereby assigns to Landlord any
award which may be made in such taking or condemnation, together with any and
all rights of Tenant now or hereafter arising in or to the same or any part
thereof; provided, however, that nothing contained herein shall be deemed to
give Landlord any interest in or require Tenant to assign to Landlord any award
made to Tenant for the taking of personal property and fixtures belonging to
Tenant and removable by Tenant at the expiration of the term hereof, as provided
hereunder, or for the interruption of, or damage to Tenant's business or for
relocation expenses recoverable against the condemning authority. In the event
of a partial taking, or a sale, transfer, or conveyance in lieu thereof, which
does not result in a termination of this Lease, Landlord shall restore the
premises substantially to their condition prior to such partial taking and,
thereafter, rent shall be abated in the proportion which the square footage of
the part of the Premises so made unusable bears to the amount of Rentable Area
immediately prior to the taking. No temporary taking of a part of the Premises
or of the Building, including parking facilities and interior and adjacent
landscaped areas, shall give Tenant any right to terminate this Lease or to any
abatement of rent hereunder.
21. DEFAULT.
(a) Any of the following events shall constitute a default
under this Lease by Tenant:
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<PAGE> 22
(1) Failure by tenant to make any payment of rent or other
payment required by this Lease when the same is due, and the continuance of such
failure for a period of ten (10) days after written notice thereof from Landlord
to Tenant;
(2) The vacating (except as may be necessary to facilitate
the reoccupancy of the Premises for a permitted use pursuant to an assignment or
subletting authorized under the terms hereof) or abandoning (which is deemed to
include absence from the Premises for more than ten (10) days while in default
of any provision of this Lease) of the Premises by Tenant;
(3) Any attempted conveyance, assignment, mortgage or
subletting of this Lease or of bankruptcy (unless, in the case of a petition
filled against Tenant, the same is dismissed within sixty (60) days); the taking
of any action at the corporate or partnership level by Tenant to authorize any
of the foregoing actions on behalf of Tenant; 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 unless possession is restored
to Tenant within thirty (30) days; or 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 such seizure is not discharged
within thirty (30) days;
(4) The failure by Tenant to observe or perform any
covenant, condition, or provision in this Lease not already specifically
mentioned in this Article 2(a), where such failure continues for thirty (30)
days after written notice from Landlord notifying Tenant of such failure;
provided, however, that if the nature of Tenant's failure is such that more than
thirty (30) days are reasonably required for its cure, then Tenant shall not be
in default if it begins such cure within the thirty (30) day period described
above and thereafter diligently prosecutes such cure to completion.
(b) In the event of any default by Tenant, Landlord may
promptly or at any time thereafter, upon notice and demand and without limiting
Landlord in the exercise of any other right or remedy which Landlord may have by
reason of such default or breach;
(1) 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. In such event,
Landlord shall be entitled to recover from Tenant:
(i) The worth at the time of award of the unpaid rent
which had been earned at the time of termination;
(ii) The worth at the time of award of the amount by
which the unpaid rent which would have been earned
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<PAGE> 23
after termination until the time of the award exceeds the amount of such rental
loss that Tenant proves could have been reasonably avoided;
(iii) The worth at the time of award of the amount by
which the unpaid rent for the balance of the term after the time of award
exceeds the amount of such rental loss the Tenant proves can reasonably be
avoided; and
(iv) Any other amount necessary to compensate Landlord
for all 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 therefrom, including, but not limited to, the cost of
recovering possession of the Premises, expenses of reletting (including
advertising), brokerage commissions and fees, costs of putting the Premises in
good order, condition and repair, including necessary renovation and alteration
of the Premises, reasonable attorney's fees, court costs, all costs for
maintaining the Premises, all costs incurred in the appointment of and
performance by a receiver to protect the Premises or Landlord's interest under
the Lease, and any other reasonable cost.
The "worth at the time of award" of the amounts
referred to in subsections (I) and (ii) above shall be computed by allowing
interest at the rate of 12% per annum. The "worth at the time of award" of the
amount referred to in subsection (iii) above shall be computed by discounting
such amount at one (1) percentage point above the discount rate of the Federal
Reserve Bank of San Francisco at the time of award.
(2) Pursue any other remedy now or hereafter available to
Landlord under the laws or judicial decisions of the State of California.
(c) Even though Tenant has breached this Lease and vacated or
abandoned the Premises, at Landlord's option this Lease shall continue in effect
for so long as Landlord does not terminate Tenant's right to possession, and
Landlord may enforce all of its rights and remedies hereunder, including the
right to recover rent as it comes due under this Lease, and in such event
Landlord will permit Tenant to sublet the Premises or to assign his interest in
the Lease, or both, with the consent of Landlord, which consent will not
unreasonably be withheld provided the proposed assigneee or sublessee is
reasonably satisfactory to Landlord as to credit and will occupy the Premises
for the same purposes specified herein, and such tenancy is not inconsistent
with Landlord's commitments to other tenants in the Building. For purpose of
this subparagraph (c) the following shall not constitute a termination of
Tenant's right to possession: (1) acts of maintenance or preservation or efforts
to relet the Premises; or (2) the appointment of a receiver under the initiative
of Landlord to protect Landlord's interest under this Lease.
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<PAGE> 24
(d) Tenant hereby acknowledges that late payment by Tenant to
Landlord of rent and other charges due under this Lease will cause Landlord to
incur costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to
processing and accounting charges, and late charges which may be imposed on
Landlord by the terms of any mortgage or trust deed covering the Premises.
Accordingly, if any installment of rent or any other charge due from Tenant is
not received by Landlord or Landlord's designee within ten (10) days after such
amount shall be due, then, at Landlord's election and upon Landlord's demand,
Tenant shall pay to Landlord a late charge equal to 15% of such overdue amount,
and in such event the parties hereby agree that such late charge represents a
fair and reasonable estimate of the costs Landlord will incur by reason of the
late payment by Tenant. No late charge may be imposed more than once for the
same late rental payment. Acceptance of such late charge by Landlord shall in no
event constitute a waiver of Tenant's default with respect to such overdue
amount, nor prevent Landlord from exercising any other rights and remedies
granted to it hereunder.
22. ASSIGNMENT AND SUBLETTING.
(a) Tenant shall not assign or transfer this Lease, or any
interest therein, and shall not sublet the Premises or any part thereof, or any
right or privilege appurtenant thereto, or suffer any other person (the
invitees, agents and servants of Tenant excepted) to occupy or use the Premises,
or any portion thereof, or agree to any of the foregoing, without in each case
first obtaining the written consent of Landlord, in accordance with subparagraph
(b) below. Neither this Lease nor any interest therein shall be assignable as to
the interest of Tenant by operation of law, without the written consent of
Landlord. Tenant shall not pledge, hypothecate or encumber this Lease, or any
interest therein, without in each case first obtaining the written consent of
Landlord, which consent shall not unreasonably be withheld. Any such assignment,
transfer, pledge, hypothecation, encumbrance, sublease or occupation of, or the
use of the Premises by any other person without such consent, shall be void. Any
consent to any assignment, transfer, pledge, hypothecation, encumbrance,
sublease or occupation or use of the Premises by any other person which may be
given by Landlord shall not constitute a waiver by Landlord of, the provisions
of this Article 22 or a release of Tenant from the full performance by it of the
covenants herein contained.
(b) If Tenant desires at any time to assign this Lease or
sublet all or any portion of the Premises, Tenant shall first notify Landlord at
least sixty (60) days prior to the proposed effective date of the assignment or
sublease, in writing, of its desire to do so and shall submit in writing to
Landlord (1) the name of the proposed sub-tenant or assignee, (2) the nature of
the proposed sub-tenant's or assignee's business to be carried on in the
Premises, (3) the terms and conditions of the
22
<PAGE> 25
proposed sublease or assignment and (4) financial statements for the two most
recent completed fiscal years of the proposed sub-tenant or assignees, and a
bank reference. Thereafter, Tenant shall furnish such supplemental information
as Landlord may reasonably request concerning the proposed sub-tenant or
assignee. At any time within fifteen (15) days after Landlord's receipt of the
information specified above, Landlord may by written notice to Tenant elect to
(1) terminate this Lease not less than forty-five (45) nor more than ninety (90)
days after the end of said fifteen (15) day period as to the portion (including
all) of the Premises so proposed to be assigned or subleased, with a
proportionate abatement in rent payable hereunder, (2) consent to the sublease
or assignment, or (3) reasonably disapprove of the sublease or assignment,
setting forth in writing Landlord's grounds for doing so. Such grounds may
include, without limitation, a material increase in the impact upon the common
areas of the Building or the parking facilities, a material increase in the
demands upon utilities and services supplied by Landlord, a possible material
adverse effect upon the reputation of the Building from the nature of the
business to be conducted, or a reputation for financial reliability on the part
of the proposed sub-tenant or assignee which is unsatisfactory in the reasonable
judgment of Landlord. If Landlord consents to the sublease or assignment within
the fifteen (15) day period, Tenant may thereafter enter into such assignment or
sublease of the Premises, or a portion thereof, upon the terms and conditions
and as of the effective date set forth in the information furnished by Tenant to
Landlord.
(c) Each permitted assignee, transferee or sublessee, other
than Landlord, shall assume and be deemed to have assumed this Lease and shall
be and remain liable jointly and severally with Tenant for the payment of the
rent and for the due performance or satisfaction of all of the provisions,
covenants, conditions and agreements herein contained on Tenant's part to be
performed or satisfied. No permitted assignment shall be binding on Landlord
unless such assignee or Tenant shall deliver to Landlord a counterpart of such
assignment which contains a covenant of assumption by the assignee, but the
failure or refusal of the assignee to execute such instrument of assumption
shall not release or discharge the assignee from its liability as set forth
above.
(d) If Tenant is a partnership, a transfer of any interest of
a general partner, a withdrawal of any general partner from the partnership, or
the dissolution of the partnership, shall be deemed to be an assignment of this
Lease.
(e) If Tenant is a corporation, unless Tenant is a public
corporation, viz., whose stock is regularly traded on a national stock exchange,
or is regularly traded in the over-the-counter market and quoted on NASDAQ, any
dissolution, merger, consolidation, or other reorganization of Tenant or sale or
other transfer of a percentage of capital stock of Tenant which results
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in a change of controlling persons, or the sale or other transfer of
substantially all of the assets of Tenant, shall be deemed to be an assignment
of this Lease.
(f) (1) In the event this Lease is assigned to any person or
entity pursuant to provisions of the Bankruptcy Code, 11 USC Section 101, et
seq., (the "Bankruptcy Code"), any and all monies or other consideration payable
or otherwise to be delivered in connection with such assignment shall be paid or
delivered to Landlord, shall 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 and all monies or other consideration
constituting Landlord's property under the preceding sentence not paid or
delivered to Landlord shall be held in trust for the benefit of Landlord and be
promptly paid to or turned over to Landlord.
(2) If Tenant pursuant to this Lease, proposes to assign
the same pursuant to the provisions of the Bankruptcy Code, to any person or
entity who shall have made a bona fide offer to accept an assignment of this
Lease on terms acceptable to Tenant, the notice of the proposed assignment
setting forth (I) the name and address of such person, (ii) all of the terms and
conditions of such offer, and (iii) the assurances referred to in Section
365(b)(3) of the Bankruptcy Code, shall be given to the Landlord by the Tenant
no later than 20 days after receipt of such offer by the Tenant, but in any
event no later than 10 days prior to such offer by the Tenant, but in any event
no later than 10 days prior to the date that Tenant shall make application to a
court of competent jurisdiction for authority and approval to enter into such
assignment and assumption, and Landlord shall thereupon have the prior right and
option, to be exercised by notice to the Tenant given at any time prior to the
effective date of such proposed assignment, to accept an assignment of this
Lease upon the same terms and conditions and for the same consideration, if any,
as the bona fide offer made by such person, less any brokerage commissions which
may be payable out of the consideration to be paid such person for the
assignment of this Lease.
(3) Any person or entity to which this Lease is assigned
pursuant to the provisions of the Bankruptcy Code shall be deemed without
further act or deed to have assumed all of the obligations arising under this
Lease on or after the date of such assignment. Any such assignee shall, upon
demand, execute and deliver to Landlord an instrument confirming such
assumption.
(4) The following factors may be considered by the
Landlord as necessary in order to determine whether or not the proposed assignee
has furnished Landlord with adequate assurances of its ability to perform the
obligations of this Lease:
1. The adequacy of security deposit.
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2. Net worth and other financial elements of the
proposed assignee.
(5) In the event Landlord rejects the proposed assignee, the
rights and obligations of the parties hereto shall continue to be governed by
the terms of this Lease, and Tenant shall have all the rights of a Tenant under
applicable California law.
23. SUBORDINATION. This Lease is subject and subordinate to all ground
or underlying leases, mortgages, and deeds of trust which now affect the
Premises, the Building and the real property of which it is a part, and to all
renewals, modifications, consolidations, replacements, and extensions thereof.
If the lessor under any such lease or the holder or holders of any such mortgage
or deed of trust shall advise Landlord that they desire or require this Lease to
be prior and superior thereto, upon written request of Landlord to Tenant,
Tenant agrees promptly to execute, acknowledge, and deliver any and all
documents or instruments which Landlord or such lessor, holder, or holders deem
necessary or desirable for purposes thereof. Landlord shall have the right to
cause this Landlord to be and become and remain subject and subordinate to any
and all ground or underlying leases, mortgages or deeds of trust which may
hereafter be executed covering the Premises, the Building and the real property
of which it is a part, or any renewals, modifications, consolidations,
replacements or extensions thereof, for the full amount of all advances made or
to be made thereunder and without regard to the time or character of such
advances, together with interest thereon and subject to all the terms and
provisions thereof. Tenant agrees, within ten (10) days after Landlord's written
request therefor, to execute, acknowledge, and deliver any and all documents or
instruments requested by Landlord, or that are necessary or proper to assure the
subordination of this Lease to any such mortgages, deeds of trust, or leasehold
estates; provided, however, that the foregoing provisions with respect to such
election of subordination by Landlord shall not be effective unless the owner or
holder of any such mortgage, deed of trust, or the lessor under any such
leasehold estate shall execute with Tenant a non-disturbance and attornment
agreement under which such owner, holder, or lessor shall agree to accept the
Tenant upon the terms and conditions contained in this Lease for the then
unexpired term hereof, in the event of termination of such leasehold estate or
upon the foreclosure of any such mortgage or deed of trust, so long as Tenant
agrees to pay rent and observe and perform all of the provisions of this Lease
to be observed and performed by Tenant.
24. ESTOPPEL CERTIFICATE. Tenant shall at any time and from time to
time, upon not less than ten (10) days prior written notice from Landlord,
execute, acknowledge, and deliver to Landlord a statement in writing certifying
that this Lease is unmodified and in full force and effect (or, if modified,
stating the nature of such modification and certifying that this Lease,
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<PAGE> 28
as so modified, is in full force and effect) and the dates to which the rental,
the security deposit, if any, and other charges, if any, are paid in advance,
and acknowledging that there are not, to Tenant's knowledge, any uncured
defaults on the part of Landlord hereunder, and not events or conditions then in
existence which, with the passage of time or notice or both, would constitute a
default on the part of Landlord hereunder, or specifying such defaults, events,
or conditions, if any are claimed. It is expressly understood and agreed that
any prospective purchaser or encumbrancer of all or any portion of the building
or of the real property of which it is a part shall be entitled to rely upon any
such statement. Tenant's failure to deliver such statement within such time
shall, at the option of Landlord, constitute a breach or default under this
Lease. If such option is not so exercised by Landlord, Tenant's failure 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) that there are no
uncured defaults in Landlord's performance; and (iii) that not more than two (2)
months' rental has been paid in advance. If Tenant fails to deliver the
certificate within ten (10) days, Tenant irrevocably constitutes and appoints
Landlord as its special attorney-in-fact to execute and deliver the certificate
to any third party.
25. INTEREST ON PAST DUE OBLIGATION. Except as otherwise
expressly provided in this Lease, any amount due from Tenant to Landlord
hereunder which is not paid when due shall bear interest at the highest rate
then allowed under the usury laws of the State of California from the date due
until the date paid.
26. SALE OR TRANSFER BY LANDLORD. In the event of any transfer
or transfers of Landlord's interest in the Premises, other than a transfer for
security purposes only, the transferor shall automatically be relieved of any
and all obligations and liabilities on the part of the Landlord accruing from
and after the date of such transfer; provided, however, that any funds in the
hands of Landlord in which Tenant has an interest, at the time of such transfer,
shall be turned over to the transferee and upon such transfer, Landlord shall be
discharged from any further liability with reference to such funds. The
covenants and obligations of Landlord contained in this Lease shall be binding
upon Landlord, its successors and assigns only during their respective periods
of ownership. Tenant agrees to look solely to Landlord's interest in the
Building and the real property of which it is a part (or the proceeds thereof)
for the satisfaction of any remedy of Tenant, for the collection of a judgment
(or other judicial process) requiring the payment of money by Landlord in the
event of any default by Landlord hereunder, and no other property or assets of
Landlord shall be subject to levy, execution, or other enforcement procedure for
the satisfaction of Tenant's remedies under or with respect to this Lease, the
relationship of Landlord and Tenant hereunder, or Tenant's use of occupancy of
this Premises.
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27. LANDLORD'S RIGHT TO CURE DEFAULTS. All covenants and agreements to
be performed by Tenant under any of the terms of the Lease shall be at its sole
cost and expense and, except as otherwise specifically provided herein, without
any abatement of rent. If Tenant shall fail to pay any sum of money, other than
rent, required to be paid by hereunder or shall fail to perform any other act on
its part to be performed hereunder, and such failure shall continue for twenty
(20) days after notice thereof by Landlord, Landlord may, but shall not be
obligated so to do, and without waiving any rights of Landlord or releasing
Tenant from any obligations of tenant hereunder, make such payment or perform
such other act at Tenant's cost. All sums so paid by Landlord and all such
necessary incidental costs together with interest thereon from the date of such
payment by Landlord in connection with the performance of any such act by
Landlord shall be considered rent hereunder. Except as otherwise in this Lease
expressly provided, such rent shall be payable to Landlord on demand, or at the
option of Landlord, in such installments as Landlord may elect and may be added
to any other rent then due or thereafter becoming due under this Lease, and
Landlord shall have (in addition to any other right or remedy of Landlord) the
same rights and remedies in the event of the nonpayment thereof by Tenant as in
the case of default by Tenant in the payment of any other rent due hereunder.
28. WAIVER. No delay or omission in the exercise of any right or remedy
of Landlord on the occurrence of any default by Tenant shall impair such a right
or remedy or be construed as a waiver. The receipt and acceptance by Landlord of
delinquent rent shall not constitute a waiver of any other default; it shall
constitute only a waiver of timely payment for the particular rent payment
involved. No act or conduct of Landlord, including, without limitation, the
acceptance of the keys to the Premises, shall constitute an acceptance of the
surrender of the Premises by Tenant before the expiration of the term. Only
written notice from Landlord to Tenant shall constitute acceptance of the
surrender of the Premises and accomplish a termination of the Lease. Landlord's
consent to or approval of any act by Tenant requiring Landlord's consent or
approval shall not be deemed to waiver or render unnecessary Landlord's consent
to or approval of any subsequent act by Tenant. Any waiver by Landlord of any
default must be in writing and shall not be a waiver of any other default
concerning the same or any other provision of the Lease.
29. FORCE MAJEURE. Whenever a day is appointed herein on which, or a
period of time is appointed within which, either party hereto is required to do
or complete any act, matter or thing, the time for the doing or completion
thereof shall be extended by a period of time equal to the number of days on or
during which such party is prevented from, or is unreasonably interfered with,
the doing or completion of such art, matter or thing because of strikes,
lock-outs, embargoes, unavailability of labor or materials, wars, insurrections,
rebellions, civil
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disorder, declaration of national emergencies, acts of God, or other causes
beyond such party's reasonable control (financial inability excepted); provided,
however, nothing contained in this Article 29 shall excuse Tenant from the
prompt payment of any rental or other charge required of Tenant hereunder.
31. PARKING. Landlord shall make available, for persons regularly
employed by Tenant in the Premises, a reasonable number of non-exclusive parking
spaces in the parking facilities. Landlord, at all times, shall have sole and
exclusive control of all parking facilities and common areas, including without
limitation, driveways, entrances and exits, sidewalks and pedestrian passage
ways, and pylon signs, and Landlord may at any time exclude any person from the
use and occupancy thereof except those persons using the parking facilities in
accordance with the written consent of Landlord and in accordance with all
regulations established by Landlord from time to time. Tenant agrees that
Landlord assumes no responsibility of any kind whatsoever in reference to said
automobile parking facilities or the use thereof by Tenant, its employees,
agents or invitees, or by anyone else. Landlord may, at its sole discretion,
determine whether parking facilities shall be surface, underground, or
multi-deck, and where they shall be located. Landlord may, at the outset and
from time to time, limit access to the parking facilities by means of attendants
and/or other devices, and make other changes in the layout and operation of the
parking facilities including, without limiting the generality of the foregoing,
changes in locations of entrances, exits and parking spaces, and changes in the
direction of traffic flow. No delay or failure by Landlord to enforce its
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parking rules and regulation or its other rights hereunder, and no waiver by
Landlord of any breach thereof, shall be deemed to be a waiver of any succeeding
breach or prevent any subsequent or other enforcement thereof by Landlord.
32. SURRENDER OF PREMISES.
(a) The voluntary or other surrender of this Lease by Tenant
to Landlord, or a mutual termination thereof, shall not work a merger, and shall
at the option of Landlord, operate as an assignment to it of any or all
subleases or subtenancies affecting the Premises.
(b) Upon the expiration of the term of this Lease, or upon any
earlier termination of this Lease, Tenant shall quit and surrender possession of
the Premises to Landlord in as good order and condition as the same are now or
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, remove or cause to be removed from the Premises all debris and
rubbish, all furniture, equipment, business and trade fixtures, free-standing
cabinet work, moveable partitioning and other articles of personal property
owned by Tenant or installed or placed by Tenant at its expense in the Premises,
and all similar articles of any other persons claiming under Tenant unless
Landlord exercises its option to have any subleases or subtenancies assigned to
it, and Tenant shall repair all damage to the Premises resulting from such
removal.
(c) Any property of Tenant not removed by Tenant upon the
expiration of the term of this Lease (within forty-eight (48) hours after a
termination or re-entry by Landlord pursuant to Article 21 hereof) shall be
considered abandoned. Landlord shall give Tenant notice of its right to reclaim
abandoned property pursuant to California Civil Code Section 1980 et. seq., and
may, thereafter, remove any or all of such items and dispose of the same in any
manner or store the same in a public warehouse or elsewhere for the account and
at the expense and risk of Tenant. Tenant hereby grants to Landlord a security
interest in said abandoned property, in the event it is not reclaimed within the
statutory period. It Tenant shall fail to pay the cost of storing any such
property after it has been stored for a period of thirty (30) days or more,
Landlord may sell any or all of such property at public or private sale, in such
manner and at such time and places as Landlord, in its sole discretion, may deem
proper without notice to or demand upon Tenant, and shall apply the proceeds of
such sale: first, to the costs and expenses of such sale, including reasonable
attorneys' fees actually incurred; second, to the payment of the costs for the
removal and storing of any such property; third, to the payment of any other
sums of money which may then or thereafter be due to Landlord from Tenant under
any of the terms hereof; and fourth, the balance, if any, to Tenant.
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(d) All fixtures, equipment, alterations, additions, fixed
partitions and/or appurtenances attached to or built into the Premises prior to
or during the term hereof, whether by Landlord at its expense or at the expense
of Tenant or both, shall be and remain part of the Premises and shall not be
removed by Tenant at the end of the term hereof unless such removal is required
by Landlord pursuant to written notice to Tenant given at least thirty (30) days
prior to the expiration or sooner termination of the term of this Lease. Such
fixtures, equipment, alterations, additions, improvements and/or appurtenances
shall include but not be limited to: All floor coverings, drapes, paneling,
molding, doors, vaults (exclusive of vault doors), plumbing systems, electrical
systems, lighting systems, silencing equipment, communication systems, all
fixtures and outlets for the systems mentioned above and for all telephone,
radio, telegraph and television purposes, and any special flooring or ceiling
installations.
(e) Tenant shall, at least three-hundred sixty (360) days
before the last day of the term hereof, give to Landlord a written notice of
intention to surrender the Premises on or before that date, but nothing
contained herein shall be construed as an extension of the term hereof or as
consent of Landlord to any holding over by Tenant.
33. MISCELLANEOUS.
(a) Any provision of this Lease which shall prove to be
invalid, void, or illegal shall in no way affect, impair, or invalidate any
other provision hereof and such other provisions shall remain in full force and
effect.
(b) In the event of any litigation between Tenant and
Landlord, to enforce any provision of this Lease or any right of either party
hereto, or to secure a judicial determination of any right or obligation of
either party hereto, the unsuccessful party in such litigation shall pay to the
successful party all costs and expenses, including reasonable attorneys' fees,
incurred therein. Moreover, if either party hereto without fault is made a party
to any litigation instituted by or against any other party to this Lease, such
other party shall indemnify Landlord or Tenant, as the case may be, against and
save it harmless from all costs and expense, including reasonable attorneys'
fees, incurred by it in connection therewith.
(c) Each of Tenant's covenants herein is a condition and time
is of the essence with respect to the performance of every provision of this
Lease, and the strict performance of each shall be a condition precedent to
Tenant's right to remain in possession of the Premises or to have this Lease
continue in effect.
(d) The article captions contained in this Lease are for
convenience and do not in any way limit or amplify any term or provision of this
Lease and shall have no effect on its interpretation.
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(e) The terms "Landlord" and "Tenant" as used herein shall
include the plural as well as the singular, and the neuter shall include the
masculine and feminine genders. The obligations herein imposed upon Tenant shall
be joint and several as to each of the persons, firms, or corporations of which
Tenant may be composed.
(f) This Lease and the exhibits and any rider or addendum
attached hereto constitute the entire agreement between the parties hereto with
respect to the subject matter hereof; and no prior agreement or understanding
pertaining to any such matter shall be effective for any purpose. No provisions
of this Lease may be amended or supplemented except by an agreement in writing
signed by the parties hereto or their successors in interest.
(g) The submission of this Lease by Landlord, its agents, or
representative for examination or execution by Tenant does not constitute an
option or offer to lease the Premises upon the terms and conditions contained
herein or a reservation of the Premise in favor of Tenant, it being intended
hereby that this Lease shall only become effective upon the execution hereof by
Landlord and delivery of a fully executed counterpart hereto to Tenant.
(h) Tenant shall observe faithfully and comply strictly with
the Rules and Regulations set forth in Exhibit "B", attached hereto and
incorporated by reference herein, and such other Rules and Regulations,
modifications or amendments thereto, as Landlord may from time to time
reasonably adopt for the safety, care, and cleanliness of the building,
including the parking facilities and both interior and adjacent landscaped
areas, for the preservation of good order therein. Failure by Tenant to comply,
strictly, with the Rules and Regulations, at the option of Landlord, shall
constitute a material default by Tenant under this Lease. Landlord shall not be
liable to Tenant for violation or non-performance of any such Rules and
Regulations or, for that matter, for the breach of any covenant or condition in
any lease, by any other tenant or occupant of the Building. Notwithstanding,
Landlord agrees to enforce the Rules and Regulations without discrimination
among all, Tenants similarly affected. If there is a conflict between the Rules
and Regulations and any of the provisions of this Lease, the provisions of this
Lease shall prevail.
(i) This Lease shall be interpreted and enforced in accordance
with the laws of the State of California, which shall apply in all respect,
including statutes of limitation, to any disputes or controversies arising out
of or pertaining to this Lease.
(j) Upon Tenant's paying the Base Rent, Additional Rent and
other sums provided hereunder, and observing
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and performing all of the covenants, conditions, and provisions on Tenant's part
to be observed and performed hereunder, Tenant shall have quit possession of the
Premises for the entire term hereof, subject to all of the provisions of this
Lease.
(k) Except as otherwise provided in this Lease, all of the
covenants, conditions, and provisions of this Lease shall be binding upon and
shall inure to the benefit of the parties hereto and their respective heirs,
personal representatives, successors, and assigns.
(l) Any notice required or permitted to be given hereunder
shall be in writing and may be given by personal delivery or by certified mail,
return receipt requested, addressed to tenant or to Landlord oat the address
provided in Paragraph (g) of Article 1 hereof. Either party may by notice to the
other specify a different address for notice purposes. A copy of all notices to
be given to Landlord hereunder shall be concurrently transmitted by Tenant to
any other party hereafter designated by notice from Landlord to Tenant.
(m) In connection with the Lease, Tenant warrants and
represents that it has had dealings only with Landlord's leasing agents, and
that there are no other real estate agents and/or brokers involved in this
transaction. Tenant represents that there are no other fees or commissions
involved in this transaction other than those which may be owing to Landlord's
leasing agents, and Tenant does hereby agree to indemnify and hold Landlord
harmless from any claims, of any nature whatsoever, for any real estate
commissions in connection herewith, or any other claims of any nature whatsoever
that may be raised by any real estate agents or brokers who may be claiming a
commission as a result of services rendered to Tenant in connection with this
Lease.
LANDLORD TENANT
SIERRA PACIFIC PROPERTIES, INC. Bay Area Seating Service, Inc.
A California Corporation
By By /s/ Douglas Levinson
----------------------------- -----------------------------------
Thomas A. Seeno Douglas Levinson VP/GM 12/18/89
By /s/ Albert D. Seeno, Jr. By
----------------------------- -----------------------------------
Albert D. Seeno, Jr.
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LEASE ADDENDUM
This Lease Addendum refers to that Office Building Leased dated November 29,
1989, by and between Sierra Pacific Properties, Inc., a California Corporation
("Landlord") and Bay Area Seating Service, Inc., Tenant, of said premises at
Concord Gateway, 1855 Gateway Blvd., Suite 600, Concord, California, 94520.
1. BASE MONTHLY RENT
$1.05 per rentable square foot per month, fully serviced ($17,358.00
per month, $208,303.20 per year). Beginning the first day of the 61st
month of the lease term, Base Monthly Rent shall increase to $1.50 per
rentable square foot per month, fully serviced ($24,798.00 per month,
$297,576.00 per year). The 61st month of the lease term shall be rent
free, less any buildout overage amount deducted including 12% per annum
interest for 60 months.
2. OPERATING EXPENSES
Tenant's proportionate share is hereby mutually agreed to be 0.05492.
Tenant shall pay to Landlord, as additional rent, the amount by which
Tenant's share of Operating Expenses exceeds the Base Year Operating
Expenses per rentable square foot as defined and further described in
Article 5, "Additional Rent," and the attached Addendum to Lease.
Tenant shall not be responsible for any operating expense pass-through
increase for real property tax increases due to sale of subject
property during the initial lease term.
3. TENANT IMPROVEMENTS
Premises shall be improved as per final mutually approved space plan,
dated December 12, 1989, with building standard materials used except
where noted on plan. Landlord's maximum contribution toward plan shall
not exceed $27.00 per rentable square foot ($446,364.00). Any overages
above this amount will be amortized by Landlord over Lease Term at 12%
per annum, and payable in addition to base monthly rent upon
commencement of lease. If Tenant improvements are less than $446,364,
tenant shall be credited with difference.
4. OPTION TO EXTEND TERM
Tenant shall be given one (1) five (5) year option to extend lease term
at 95% of then current market rent by giving Landlord written notice no
later than 180 days prior to Lease expiration. The option base rental
rate to be determined for option period shall equal 95% of the then
prevailing market rental rate (new minimum monthly rent) which is to be
mutually agreed upon by Landlord and Tenant.
PAGE 1 OF 3 PAGES
<PAGE> 36
"Fair Market Value" is defined as comparable space in a comparable
building of similar age and class in the Concord area.
If the parties cannot agree on the minimum monthly rent for the period
beyond Tenant's initial lease term (hereafter referred to as period),
then within Thirty (30) days after Lessee has exercised its option to
extend, each party, at its cost and by giving notice to the other
party, shall appoint a real estate appraiser with at least three (3)
years full-time commercial appraisal experience in the area in which
the premises are located to appraise and set the minimum monthly rent
and any future rental escalation during the option period thereof.
If the party does not appoint an appraiser within ten (10) days after
the other party has given notice of the same, its appraiser shall set
the minimum monthly rent for the period. The two appraisers appointed
by the parties as stated in this paragraph shall meet promptly and
attempt to set the minimum monthly rent for the period. If they are
unable to agree within thirty (30) days after the second appraiser has
been appointed, then the two appraisers will elect a third appraiser
meeting the qualifications stated in this paragraph within ten (100
days after the last day the two appraisers are given to set the minimum
rent. The third appraiser will then choose one of the minimum monthly
rent figures proposed by the two former appraisers which, in the third
appraiser's opinion, most closely approximates fair market value in
respect to new minimum monthly rent and any future rental escalations
during the option period.
If the new rent has not been determined by the time the lease expires,
the holdover rate recited in Paragraph 8 of the lease will apply until
the new rate is established pursuant to the above. In all other
respects, the balance of the lease terminology will remain the same as
the initial lease.
5. FIRST RIGHT OF REFUSAL TO EXPAND PREMISES:
Landlord hereby grants to Tenant an ongoing Right of First Refusal on
contiguous space up to 3,000 rentable square feet as delineated in
"Exhibit A" for the purpose of expanding Tenant's Premises with Tenant
improvements consistent with those prevailing at the time of expansion.
Tenant will have ten (10) calendar days response time in order to
notify Landlord in writing of Tenant's intent to lease additional area
affective from date Landlord notifies Tenant by telephone to be later
confirmed in writing of another Tenant's interest in leasing Tenant's
expansion area.
PAGE 2 OF 3 PAGES
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6. AFTER HOURS UTILITY USE:
The tenant has designated approximately 1,200 square feet of the
premises to a 24-hour operation for computer facility. Landlord agrees
to provide this area of the Premises with after-hours electrical power,
lighting and HVAC which shall be recovered and build at a rate of $2.50
per hour. This rate is based on Tenant's consumption estimated at four
(4) watts per square foot. This rate is subject to adjustment from time
to time based on inflationary factors including, but not limited to,
utility rates, union labor rates for building engineers, usage above
four (4) watts per square foot, and other maintenance costs directly
associated with these services. For purposes of adjustment, the utility
portion of the $2.50 per hour is agreed to be 58% and the maintenance
10%. Tenant will be provided with a breakdown or explanation of any
adjustments.
7. PARKING:
Tenant shall be allowed to park in project garage at a rate of 3.0
unreserved parking stalls per 1,000 square feet rented (50 stalls
total) at no cost during initial lease term. Landlord reserves the
right to convert the parking garage to valet if usage deems necessary
at no direct cost to Tenant. Two (2) of the stalls shall be reserved
with location to be approved by both Landlord and Tenant.
8. MOVING ALLOWANCE:
Landlord agrees to provide Tenant with a relocation allowance of $4.50
per rentable square foot, payable upon occupancy of premises.
9. FITNESS CENTER:
Tenant shall be allowed to use Concord Gateway Two fitness center at no
direct charge to Tenant or its employees.
10. CONFLICT:
This Addendum is an integral part of the Lease attached, and should
there by any conflict between either languages, this Addendum will
prevail.
LANDLORD TENANT
-------- ------
Sierra Pacific Properties, Bay Area Seating Service, Inc.
A California Corporation dba BASS Ticketmaster
/s/ Albert D. Seeno 12/29/89 /s/ Thomas A. Seeno 12/18/89
------------------------------------ ------------------------------------
Albert D. Seeno Date Thomas A. Seeno Date
PAGE 3 OF 3 PAGES
<PAGE> 38
ADDENDUM A
Suite 600
16,532 Rentable sq. ft.
1855 Gateway Blvd.
Concord, CA 904520
<PAGE> 39
EXHIBIT B
WORK LETTER
Initial Improvement of the Premises
1. Installation of Improvements. Landlord shall furnish and install
within the Premises, substantially in accordance with the Approved Space Plan,
improvements ("Improvements") required by Tenant which are normally performed by
the construction trades. The quantities, character and manner of installation of
the Improvements shall be subject to the limitations imposed by any applicable
regulations, including those relating to the conservation of energy adopted by
any governmental agency. Landlord shall provide architectural, mechanical and
electrical engineering services required in connection with the Improvements.
2. Changes to Approved Improvements.
(a) Tenant shall bear the cost of any improvements and related
architectural and/or engineering costs called for as result of changes to the
Approved Space Plan by Tenant ("Tenant Extra Improvements"). Any modifications
requested by Tenant to any part of the Improvements which have already been
completed shall constitute part of the Tenant Extra Improvements. All
Improvements, tenant additions and substitutions shall become a part of the
Building upon installation hereof.
(b) Any substitutions for the Improvements desired by tenant
shall first be approved by Landlord. Landlord shall have the right to disapprove
any substitution or additions that (1) does not conform to all applicable codes;
(2) is not consistent with the general standard of the Building as a first-class
office building; (3) is not durable or does not have an acceptable useful life;
(4) does not have an acceptable availability; (5) does not have an acceptable
serviceability; (6) increases any item of Operating Expenses of the Building, or
(7) in Landlord's sole judgment, is of a quality inferior to the Typical
Improvements in the building.
3. Approval of Plans
(a) Landlord and Tenant shall diligently pursue the
preparation of the Preliminary Space Plan. The Final Space Plan shall have the
approval of both Landlord and Tenant. In the event Landlord and Tenant cannot
agree upon the Final Space Plan within a reasonable time, Landlord shall have
the right to terminate this Lease.
(b) Tenant shall bear the cost of any changes in the work
requested by Tenant after approval of the Final Space Plan.
-1-
<PAGE> 40
4. Preparation of Construction Documents. Construction Documents shall
be prepared by the Landlord's Architect and approved by Tenant based on the
Tenant's Signed and Approved Final Space Plan. Preparation of Construction
Documents for Final Pricing shall commence upon Architect's Receipt of
aforementioned Signed and Approved Final Space Plan.
Construction Documents shall be issued for Final Pricing and for
Tenant's signed Approval within (10) working days of Receipt of Tenant's Signed
Approved Final Space Plan.
5. Completion of Improvements and Rental Commencement Date. Landlord
shall work diligently to make the Premises Ready for Occupancy by the Scheduled
Term Commencement Date. The quantities, character and manner of the Improvements
Installation shall be subject to the Limitations imposed by any applicable
regulations, laws, ordinances, codes and rules. The Premises shall be deemed
ready for occupancy ("Ready for Occupancy") when the Improvements have been
substantially completed in accordance with the Construction Documents as
evidenced by the issue of a Notice of Substantial Completion prepared by the
Landlord's Architect. Landlord shall prepare and deliver to Tenant a written
statement certifying (a) that the Improvements have been substantially completed
in accordance with the Construction Documents and any properly authorized
changes or amendments thereof, and (b) the date of such completion. Landlord
shall diligently complete, as soon as reasonably possible, any items of work and
adjustment not completed when the Improvements are Ready for Occupancy. If
Landlord shall be delayed, however, in making the Premises Ready for Occupancy
as a result of:
(a) Tenant's failure to approve the Construction Documents and Cost
Estimate, or;
(b) Tenant's changes to the Construction Documents after approval,
or;
(c) Tenant's request for materials, finishes or installations other
than the Improvements as set forth in Section 2;
then the commencement of the Term shall be accelerated by the number of days of
such delay. If any portion of the Premises has been sublet by Tenant for initial
occupancy by a subtenant, subject to the provisions of the foregoing sentence,
Tenant's obligation to pay rental shall commence with respect to the entire
Premises upon Landlord's making the portion of the Premises to be occupied by
Tenant or the portion of the Premises to be occupied by the subtenant Ready for
Occupancy, whichever shall first occur.
-2-
<PAGE> 41
6. Payment of Tenant's Costs. Tenant shall pay to Landlord all amounts
payable by Tenant pursuant to the Exhibit B within ten days (10) thirty (30 days
after billing thereof by Landlord. Bills may be rendered during the progress of
the work so as to enable Landlord to pay its general contractor, architect
and/or engineer without advancing Landlord funds for the Tenant Extra
Improvements.
7. Other Work By Tenant. All work outside the scope of work normally
constructed by the construction trades employed on the project, such as
furniture, telephone equipment, wiring and office equipment work shall be
furnished and installed by Tenant at Tenant's expense. Tenant shall adopt a
schedule in conformance with the schedule of Landlord's contractors and conduct
its work in such a manner so as to maintain harmonious labor relations and so as
not to unreasonably interfere with or delay the work of Landlord's contractors.
Tenant's contractors, subcontractors and labor, if other than Landlord's
contractor, shall be acceptable to and approved by ;l and shall be subject to
the administrative supervision of Landlord's contractor and shall be subject to
the rules of the site. All contractors and subcontractors engaged by Tenant
shall employ workers and means to ensure, to the fullest extent possible, the
progress of the work without interruption on account of strikes, work stoppage
or similar causes for delay. Landlord shall give access and entry to the
Premises to Tenant and its contractors and subcontractors and reasonable
opportunity and time and reasonable use of facilities to enable Tenant to adapt
the Premises for Tenant's use; provided, however, that if such entry is prior to
the commencement of the Term, such entry shall be subject to all of the terms
and conditions of the Lease except the payment of Base Rent and, provided
further, that Tenant shall not interfere with the work of Landlord or Landlord's
contractor in any way which delays Landlord's making the Premises Ready for
Occupancy.
-3-
<PAGE> 42
EXHIBIT C
CONCORD GATEWAY
RULES AND REGULATIONS OF THE PREMISES
1. Landlord shall have the right to control and operate the public
portions of the Building and the public facilities, as well as
facilities furnished for the common use of the tenants, in such manner
as it deems best for the benefit of the tenants generally. No tenant
shall invite to the Premises or permit the visit of persons in such
numbers or under such conditions as to interfere with the use and
enjoyment of the Building, its entrances, corridors, elevators, parking
facilities, and grounds referred herein as the Premises.
2. Landlord reserves the right to close and keep locked all entrance and
exit doors of the Building outside of normal business hours as Landlord
may deem to be advisable for the protection of the property. All
tenants, their employees, or other persons entering or leaving the
Building at any time when it is so locked may be required to sign the
Building register when so doing, and the watchman in charge may refuse
to admit to the Building while it is so locked Tenant or any of
Tenant's employees, or any other person, without a pass previously
arranged, or other satisfactory identification showing his right of
access to the Building at such time.
3. Landlord reserves the right to exclude or expel from the Premises any
person who, in the judgment or Landlord, is intoxicated or under the
influence of liquor or drugs, or who shall, in any manner, do any act
in violation of any of the Rules and Regulations of the Premises or in
violation of any law, order, ordinance, or governmental regulation.
4. Canvassing, soliciting, or peddling in the Premises is prohibited and
each tenant shall cooperate to prevent the same.
5. Sidewalks, doorways, vestibules, halls, stairways, and similar areas
shall not be obstructed by tenants or their officers, agents, servants,
and employees, or used for any purpose other than ingress and egress to
and from the Premises and for going from one part of the Building to
another part of the Building.
-1-
<PAGE> 43
CONCORD GATEWAY
RULES AND REGULATIONS OF THE PREMISES
23. Landlord is not responsible to any tenant for the non-observance or
violation of the Rules and Regulations by any other tenant.
24. No tenant shall, at any time, occupy any part of the Premises as
sleeping or lodging quarters.
25. No tenant shall obtain or accept for use in the Demised Premises,
janitorial services, ice, coffee service, catering, drinking water,
barbering, or bootblacking from any person not authorized by Landlord
in writing to furnish such services.
26. Tenant shall not advertise the business, profession, or activities of
Tenant in any manner, which violates the letter of spirit of any code
of ethics adopted by any recognized association or organization
pertaining thereto or use the name of the Premises for any purpose
other than that of the business address of Tenant.
27. Landlord reserves the right to rescind any of these rules and make such
other and further reasonable, non-discriminatory rules and regulations
as in the judgment of Landlord shall from time to time be needed for
the safety, protection, care, and cleanliness of the Premises, the
operation thereof, the preservation of good order therein, and the
protection and comfort of its tenants, their agents, employees and
invitees, which rules when made and notice thereof given to a tenant
shall be binding upon him in like manner as if originally herein
prescribed.
28. Tenant shall exercise control over its employees, agents, and invitees
to that they do not litter the Premises and shall be responsible for
any additional expense, which Landlord incurs to remedy any littering
by such persons.
-4-
<PAGE> 44
EXHIBIT D
MEMORANDUM CONFIRMING TERM
This Memorandum is made on March 17, 1992 between Sierra Pacific Properties,
Inc. ("Landlord"), whose address is 4300 Railroad Avenue, Pittsburg, CA 94565,
and BASS TICKETMASTER, A CALIFORNIA CORPORATION, ("TENANT"), whose address is
1855 Gateway Boulevard, Suite #630, Concord, California 94520, who entered into
a lease dated December 29, 1989, (the "Lease"), and Addendum #3 dated December
18, 1991, covering certain premises located at 1855 Gateway Boulevard, Suite
#600, Concord, California 94520 (the "Premises"), as more particularly described
in the Lease.
1. The parties to this memorandum hereby agree to confirm the
establishment of the Commencement and Expiration Dates of the Term, and
the Rental Commencement Date as follows:
a) The date of March 13, 1992, is the "Commencement Date" of the
Term referred to in the Lease;
b) the date of March 2, 2000, is the "Expiration Date" of the
Term referred to in the Lease; and
c) the date of March 13, 1992, is the "Rental Commencement Date"
referred to in the Lease.
2. Tenant hereby confirms the following:
a) That it has accepted possession of the Premises pursuant to
the terms of the Lease;
b) that the Landlord's work (as defined in Exhibit B) has been
substantially completed;
c) that Landlord has fulfilled all of its duties of an inducement
nature;
d) that the Lease has not been modified, altered or amended,
except for the dates stated in 1. a, b, & c above.
e) that there are no offsets or credits against rentals, nor has
any security deposit been paid except as provided by the
Lease;
f) that Tenant has no notice of a prior assignment, hypothecation
or pledge of rents or of the Lease; and
g) that the Lease is in full force and effect.
3. This Memorandum and each and all of the provisions hereof shall inure
to the benefit of, or bind, as the case may require the parties hereto,
and their respective heirs, successors, and assigns subject to the
restrictions upon assignment and subletting contained in the Lease.
LANDLORD TENANT
SIERRA PACIFIC PROPERTIES, INC. BASS TicketMaster
A California Corporation a California Corporation
By /s/ Thomas A. Seeno 3-27-92 By /s/ 3/17/92
--------------------------------------- ------------------------------
Michael J. Welton, President Date Date
By By
--------------------------------------- ------------------------------
Albert D. Seeno, Jr. Date Date
<PAGE> 45
SECOND ADDENDUM TO LEASE
A-1
THIS SECOND ADDENDUM TO OFFICE BUILDING LEASE dated October 25, 1990, is hereby
made a part of that certain leased dated December 29, 1989 herewith between
Sierra Pacific Properties, Inc., a California Corporation ("Landlord"), and Bay
Area Seating Service, Inc., ("Tenant). This document is hereinafter referred to
as the "Addendum A-1" and the Office Building Lease of which it forms a part is
hereinafter referred to as the "Lease". Landlord and Tenant agrees as follows:
STANDBY GENERATOR
-----------------
At Tenant's request, Landlord shall cause to be installed, with
Tenant's approval of plans and specifications, a standby electrical
generator ("Bass generator") for exclusive use by Tenant during power
outages. Tenant and Landlord shall review and approve in writing in
advance the plans, specifications, costs and expenses for the Bass
generator prior to installation. Upon request, Tenant shall reimburse
Landlord for all expenditures made by Landlord toward the Bass
generator installation. At the termination of the lease the Bass
generator and all associated equipment shall remain the property of the
Landlord. When the Bass generator becomes operational, Tenant shall
contract directly for the testing and maintenance of the generator,
using contractors approved by Landlord. It is agreed that Landlord will
provide fuel to the Bass generator's day tank on the roof from the
buildings main fuel tank as required except when Landlord, in his sole
judgment, deems it necessary to restrict such fuel due to the
requirements of the building's emergency generator, which shall have
priority at all times. Landlord agrees, however, to use its best
efforts and to act in a diligent manner to provide fuel to the Bass
generator as required. Tenant shall reimburse Landlord for the cost of
providing fuel for the Bass generator monthly upon receipt of
Landlord's statement. Tenant further agrees that Landlord shall not be
held liable for the design, installation, operation of nor any
maintenance to the Bass generator, nor for any consequential damages
including, but not limited to, property damage, personal liability,
loss of life, business or income loss in the event that the generator
fails to perform its intended function for any cause whatsoever.
INDEMNIFICATION
---------------
Landlord has also agreed to serve a part of Tenant's emergency lighting
HVAC, and power needs from the Building's existing emergency standby
generator. In consideration for Landlord's accommodation to the Tenant
as above set forth, Tenant hereby agrees that Landlord shall not be
liable to Tenant its subtenants, assignees, agents, invites, employees
and/or contractors for any damage or injury or loss of any kind or
nature that may be sustained by Tenant, its subtenants, assignees,
agents, invites, employees and/or contractors, direct or consequential,
in the event said generator fails from any cause whatsoever. Tenant
hereby waives any claims for losses or damages from the generator
failure.
RENT FOR ROOF SPACE
-------------------
Beginning the first day of the 61st month of the lease term, Tenant
shall begin paying rent for the roof space in the amount of $525.00 per
month ($6,300.00 per year) for the remainder of the lease term. This
additional roof space herein added to this lease shall be subject to
all terms and conditions of the Lease.
<PAGE> 46
PREMISES
--------
Tenant leases from Landlord and Landlord leases to Tenant an additional
seventy five (75) rentable square feet on the 6th floor adjacent to
Tenant's existing premises as a generator transformer room and as shown
on the attached Exhibit "A-1".
Effective upon the substantial completion of the generator
installation, but in no event later than January 1, 1991, PARAGRAPH 1
(A) OF THE FUNDAMENTAL LEASE PROVISIONS IS hereby changed to read:
(a) Premises: Suite NO. 600 on the 6th floor constituting a Rental
Area consisting of 16, 607 square feet.
(c)* Base Rent: $17,437.00 per month. *(See Addendum)
(d) Tenant's Proportionate Share of total Rentable Area in
Building .05517.
Except as amended above, the Lease dated December 29, 1989 shall remain in full
force and effect during its term.
LANDLORD TENANT
SIERRA PACIFIC PROPERTIES, INC. Bay Area Seating Service, Inc.
A California Corporation dba BASS Ticketmaster
By By /s/
--------------------------------- ------------------------------------
Thomas A. Seeno
or
By /s/
---------------------------------
Albert D. Seeno, Jr.
<PAGE> 47
LEASE ADDENDUM #2
THIS SECOND ADDENDUM TO LEASE is entered into on June 4, 1991, between SIERRA
PACIFIC PROPERTIES, INC., A CALIFORNIA CORPORATION (hereinafter referred to as
"Landlord") and BAY AREA SEATING SERVICE, INC., A CALIFORNIA CORPORATION, DOING
BUSINESS AS BASS TICKETS FOUNDATION, A PRIVATE, NON-PROFIT ORGANIZATION
(hereinafter referred to as "Tenant"). The parties have heretofore entered into
an office building lease dated December 29, 1989, covering premises known as
Suite 600 in that certain office building known as Concord Gateway, in the City
of Concord, County of Contra Costa, State of California, owned by Landlord and
which has a street address of 1855 Gateway Boulevard, Concord, California.
1. PREMISES:
Landlord leases to Tenant and Tenant leases from Landlord an additional
339 rentable square feet (herein "Expansion Space") located on the
third (3rd) floor in Suite 342 as shown on the floor plan attached
hereto as Exhibit "A1".
2. TERM AND OCCUPANCY:
This additional term shall commence upon occupancy by Tenant and shall
expire on March 2, 2000. Tenant shall occupy the Expansion Space when
(a) an appropriate certificate of occupancy is issued which permits
lawful occupancy; and (b) construction and installation of Tenant's
improvements is sufficiently complete so that Tenant may occupy the
Expansion Space for the conduct of its business. Tenant shall provide
necessary space planning information to Landlord in a timely manner and
approve completed working drawings requested by the Landlord's
architect within five (5) business days of receipt of said working
drawings.
3. RENT:
The rent for the Expansion space shall be One Dollar and Thirty Five
Cents ($1.35) per rentable square foot per month, or Four Hundred
Fifty-Seven and Sixty-Five Cents ($457.65) per month commencing on
occupancy of the Expansion Space as described in paragraph 2.
4. TENANT IMPROVEMENTS:
Landlord agrees to provide Tenant Improvements in the Expansion Space
according to a mutually approved space plan 291333.10, dated June 3,
1991, attached hereto as Exhibit "A1" with building standard materials
used.
Following approval by Landlord, Tenant and the City of Concord of the
above mentioned space plan, any subsequent changes made by Tenant shall
be at Tenant's cost. If these changes cause additional changes mandated
by the City of Concord or other governmental agencies, these costs
shall also be at Tenant's cost.
5. PARKING:
Tenant shall be given the use, at no cost to Tenant, on a nonexclusive
basis, one (1) additional unreserved parking stall in Concord Gateway
Two parking garage, subject to the same restrictions and regulations as
specified in the master lease.
6. CONFLICT:
This amendment is an integral part of the master lease. Should there by
any conflict in the language between the mater lease or this Addendum
the latter will prevail.
7. MASTER LEASE:
Other than as amended herein, the office building lease dated December
29, 1989, shall remain in full force and effect.
SIERRA PACIFIC PROPERTIES, INC. BAY AREA SEATING SERVICE, INC.
A CALIFORNIA CORPORATION A CALIFORNIA CORPORATION
LANDLORD DBA BASS TICKETS FOUNDATION,
A PRIVATE, NON-PROFIT ORGANIZATION
TENANT
BY: /s/ BY: /s/
------------------------------ -----------------------------------
OR DATED: 6/18/91
--------------------------------
BY:
------------------------------
DATED: 7/17/91
---------------------------
<PAGE> 48
Exhibit A1
Suite 342
1855 Gateway Blvd.
Concord, CA 94520
339 Rentable sq. ft.
<PAGE> 49
LEASE ADDENDUM #3
THIS ADDENDUM TO LEASE is entered into on December 18, 1991, between SIERRA
PACIFIC PROPERTIES, INC., A CALIFORNIA CORPORATION (hereinafter referred to as
"Landlord") and BASS TICKETMASTER, A CALIFORNIA CORPORATION, (hereinafter
referred to as "Tenant"). The parties have heretofore entered into an office
building lease dated December 29, 1989, covering premises known as Suite 600 in
that certain office building known as Concord Gateway, in the City of Concord,
County of Contra Costa, State of California, owned by Landlord and which has a
street address of 1855 Gateway Boulevard, Concord, California.
1. PREMISES:
Landlord leases to Tenant and Tenant leases from Landlord an additional
2,660 rentable square feet (herein "Expansion Space") located adjacent
on the sixth (6th) floor as shown on the floor plan attached hereto as
Exhibit "A1", beginning Tenant's total square footage to 19,267 square
feet.
2. TERM AND OCCUPANCY:
The term for this expansion space shall commence upon occupancy by
Tenant and shall expire on March 2, 2000. Tenant shall occupy the
Expansion Space when (a) an appropriate certificate of occupancy is
issued which permits lawful occupancy; and (b) construction and
installation of Tenant improvements is sufficiently complete so that
Tenant may occupy the Expansion Space for the conduct of its business.
Tenant shall provide necessary space planning information to Landlord
in a timely manner and approve completed working drawings requested by
the Landlord's architect within five (5) business days of receipt of
said working drawings.
3. RENT:
The rent for the Expansion space shall be One Dollar and Thirty Five
Cents ($1.35) per rentable square foot per month, per month commencing
on occupancy of the Expansion Space as described in paragraph 2, and
shall increase to $1.85 per rentable SF beginning March 1, 1995, with
months March and April of 1995 to be rent free.
4. TENANT IMPROVEMENTS:
Landlord agrees to provide Tenant Improvements in the Expansion Space
according mutually approved space plan 291408.10, dated October 14,
1991, and revised October 24, 1991, attached hereto as Exhibit "A1"
with building standard materials used except where noted on plan.
Any subsequent changes made by Tenant shall be at Tenant's cost. If
these changes cause additional changes mandated by the City of Concord
or other governmental agencies, these costs shall also be at Tenant's
cost.
5. PARKING:
Tenant shall be given the use, at no cost to Tenant on a nonexclusive
basis, eight (8) additional unreserved parking stall in Concord Gateway
Two parking garage, subject to the same restrictions and regulations as
specified in the master lease.
6. CONFLICT:
This amendment is an integral part of the master lease. Should there by
any conflict in the language between the master lease or this Addendum
the latter will prevail.
7. MASTER LEASE:
Other than as amended herein, the office building lease dated December
29, 1989, shall remain in full force and effect.
8. CANCELLATION:
Upon mutual execution of this addendum, Landlord and Tenant agree to
void Lease Addendum #2 dated June 4, 1991, for 339 SF on the 3rd floor
of Gateway Two.
SIERRA PACIFIC PROPERTIES, INC. BASS TICKETMASTER
A CALIFORNIA CORPORATION A CALIFORNIA CORPORATION
LANDLORD TENANT
BY: /s/ BY: /s/
----------------------------- --------------------------------------
OR DATED: 1/20/92
-----------------------------------
BY:
-----------------------------
DATED: 1/23/92
--------------------------
<PAGE> 50
Exhibit A1
Suite 600
Concord Gateway Two
<PAGE> 51
LEASE ADDENDUM #4
THIS ADDENDUM TO LEASE is entered into on May 17, 1994, between SIERRA PACIFIC
PROPERTIES, INC., A CALIFORNIA CORPORATION (hereinafter referred to as
"Landlord") and BAY AREA SEATING SERVICE, INC., DBA BASS TICKETS, A CALIFORNIA
CORPORATION, (hereinafter referred to as "Tenant"). The parties have heretofore
entered into an office building lease dated December 29, 1989, covering premises
known as Suite 600 in that certain office building known as Concord Gateway, in
the City of Concord, County of Contra Costa, State of California, owned by
Landlord and which has a street address of 1855 Gateway Boulevard, Concord,
California and Lease Addendum #3 dated 12/18/91, covering the premises known as
Suite 680, for the purposes of expanding adjacent Suite 630.
1. PREMISES:
Landlord leases to Tenant and Tenant leases from Landlord the premises
currently known as Suite 670, containing 2,944 rentable square feet
(herein "Expansion Space"), located adjacent on the sixth (6th) floor
as shown on the floor plan attached hereto as Exhibit "A2", brining
Tenant's total square footage to 22,211 square feet.
2. TERM AND OCCUPANCY:
The term for this expansion space shall commence upon occupancy by
Tenant and shall expire on August 15th, 1994, and shall expire with
Master Lease on March 2, 2000. Tenant shall occupy the Expansion Space
when (a) an appropriate certificate of occupancy is issued which
permits lawful occupancy; and (b) construction and installation of
Tenant improvements is sufficiently complete so that Tenant may occupy
the Expansion Space for the conduct of its business. Tenant shall
provide necessary space planning information to Landlord in a timely
manner and approve completed working drawings requested by the
Landlord's architect within five (5) business days of receipt of said
working drawings.
3. RENT:
The rent for the Expansion space shall be $3,944.96 per month ($1.34
per rentable square foot per month), commencing upon occupancy of the
Expansion Space as described in paragraph 2.
4. TENANT IMPROVEMENTS:
Landlord agrees to provide Tenant Improvements in the Expansion Space
as per Fitschen & Associates space plan 294865.10, dated April 25,
1994, and revised April 28, 1994, attached hereto as Exhibit "A4" with
building standard materials used except where noted on plan, with
Landlord's maximum contribution toward tenant improvements not to
exceed $30,000.00.
5. PARKING:
Tenant shall be given the use, at no cost to Tenant on a nonexclusive
basis, nine (9) additional unreserved parking stall in Concord Gateway
Two parking garage, subject to the same restrictions and regulations as
specified in the master lease.
6. CONFLICT:
This amendment is an integral part of the master lease. Should there by
any conflict in the language between the master lease or this Addendum
the latter will prevail.
7. MASTER LEASE:
Other than as amended herein, the office building lease dated December
29, 1989, shall remain in full force and effect.
SIERRA PACIFIC PROPERTIES, INC. BAY AREA SEATING SERVICE
A CALIFORNIA CORPORATION DBA BASS TICKETS
LANDLORD A CALIFORNIA CORPORATION
TENANT
BY: /s/ MICHAEL J. WELTON BY: /s/
---------------------------------- -----------------------------------
MICHAEL J. WELTON DATED: 5/27/94
PRESIDENT --------------------------------
DATED:
-------------------------------
<PAGE> 52
EXHIBIT A2
<PAGE> 53
AMENDMENT TO LEASE ADDENDUM #4
THIS AMENDMENT TO LEASE ADDENDUM #4 entered into on June 9, 1994
between SIERRA PACIFIC PROPERTIES, INCORPORATED, a California Corporation
hereinafter referred to as "Landlord", and BAY AREA SEATING SERVICE, INC. DBA
BASS TICKETS, A CALIFORNIA CORPORATION, hereinafter referred to as "Tenant".
The parties have heretofore entered into an Office Building Lease dated
December 29, 1989, covering the premises known as Suite 630 in that certain
office building known as Concord Gateway located at 1855 Gateway Boulevard,
Concord, Contra Costa County, California and Lease Addendum $3 dated May 17,
1994 for the purposes of expanding into adjacent space Suite 670.
The parties are desirous of amending the above referenced Lease
Addendum $3 in advance of its expiration date of March 2, 2000, to add the
following terms and conditions:
1. TENANT IMPROVEMENTS Premises shall be approved as per Fitschen & Associates
space plan #94865.10 dated May 2, 1994 with building standard materials used
except where noted on plan: All tenant improvement costs exceeding Thirty
Thousand Dollars ($30,000.00) including all necessary permits, licenses and
architectural fees shall be paid by tenant. Tenant agrees to construct the
premises in conformance with the American Disabilities Act of 1990 ("ADA") and
with the ADA Accessibility guidelines.
Landlord agrees to allow Tenant's preferred contractor, Burt Construction
Company, to do the construction of tenant improvements so long as Burt
Construction Company's bid from finished working drawings is the lowest, or Burt
Construction Company agrees to match the reasonable lowest bid received by the
Landlord from other bidding contractors. Landlord shall approve in writing the
final construction bid number submitted by Burt Construction Company. Tenant
shall oversee the buildout process and shall require Burt Construction Company
to meet and adhere to all Concord Gateway contractor and vendor regulations.
Landlord shall approve and sign-off on final working drawings to be prepared by
Tenant's architect and shall remit payment to Tenant upon completion and
<PAGE> 54
Landlords' sign-off of all Tenant's work. Landlord shall remit payment to Tenant
within fifteen (15) days after signing-off on completed work, receipt of
Tenant's invoice and receipt of lien releases. All other supervisory
responsibilities pertaining to tenant improvement construction shall be borne by
Tenant. Landlord shall post appropriate notices of non-responsibility and shall
defer all related correspondence to Tenant and Burt Construction Company.
2. CONFLICT This amendment is an integral part of the master lease. Should there
be any conflict in the language between the master lease or this amendment, the
latter will prevail.
3. MASTER LEASE Other than as amended above, the Office Building Lease dated
December 29, 1989, shall remain in full force and effect.
LANDLORD TENANT
SIERRA PACIFIC PROPERTIES, INC. BAY AREA SEATING SERVICE
a California Corporation dba Bass Tickets
a California Corporation
Tenant
By: /s/ Michael J. Welton-President By: /s/
-------------------------------- ---------------------------------
Michael J. Welton-President
Date: 6/15/94 Date: June 14, 1994
------------------------------ -------------------------------
<PAGE> 55
AMENDMENT TO LEASE ADDENDUM #5
July 30, 1997
This Agreement (the "Agreement") is dated for reference purposes only
and is made by and between Sierra Pacific Properties, Inc., (the "Landlord") and
Bay Area Seating Service, Inc., a California Corporation (the "Tenant") d.b.a.
BASS Tickets
RECITALS
This Agreement is made with reference to the following facts and
objectives:
A. Landlord and Tenant entered into a written Office
Building Lease and Lease Addendum dated December 29,
1989, a Lease Addendum #3 dated December 18, 1991,
wherein Lease Addendum #2 dated June 4, 1991 was
cancelled, a Lease Addendum #4 dated May 17, 1994 and
Amendment to Lease Addendum #4 dated June 9, 1994
(collectively referred to as the "Lease"), in which
Landlord leased to Tenant and Tenant leased from
Landlord certain premises located at 1855 Gateway
Blvd., Suites 600, 630 and 670, Concord, California.
(the "Premises").
B. Tenant desires to lease additional space in the
Building known as 1855 Gateway Boulevard, Suite 125
on the terms and conditions agreed to herein.
C. Landlord and Tenant wish to amend the Lease, as
provided in this Agreement.
NOW THEREFORE, in consideration of the mutual provisions
herein contained and the detriment to be suffered by each of the parties,
Landlord and Tenant agree as follows:
1. Definitions. All capitalized terms not defined herein
shall have the meanings defined in the Lease.
The following paragraphs shall be added to the Lease.
2. 34. Additional Premises. Landlord leases to Tenant
and Tenant leases from Landlord the Additional
Premises located at 1855 Gateway Boulevard, Suite 125
Concord, CA and consisting of approximately 660
rentable square feet as referenced on the attached
Exhibit "A" (the "Additional Premises").
3. 35. Additional Minimum Rent. The Minimum Rent for the
Additional Premises ("the Additional Minimum Rent")
shall be $1,122.00 per month beginning August 1,
1997, and each month thereafter during the Additional
Term, as defined herein.
4. 36. Additional Term. The term of the Lease for the
Additional Premises (the "Additional Term") shall be
on a month-to-month basis commencing on August 1,
1997 and cancellable by thirty (30) days advance
written notice by either party hereto.
5. 38. Tenant Improvements. Landlord leases the
Additional Premises and Tenant accepts the Additional
Premises in their "AS IS" CONDITION.
6. Effectiveness of Lease. Except as set forth in this
Amendment, all provisions of the Lease shall remain
unchanged and in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to Lease
Addendum #5 this 6th day of August, 1997.
SIGNATURE PAGE FOLLOWS
<PAGE> 56
LANDLORD:
SIERRA PACIFIC PROPERTIES, INC., A CALIFORNIA
CORPORATION
BY: /s/ DOUGLAS W. MESSNER
----------------------------------------
DOUGLAS W. MESSNER
ITS: VICE PRESIDENT - COO
BY: /s/ MARK D. WICKHAM
----------------------------------------
MARK D. WICKHAM
ITS: VICE PRESIDENT - CFO
TENANT:
BAY AREA SEATING SERVICE, A CALIFORNIA
CORPORATION, D.B.A. BASS TICKETS
BY: /s/
----------------------------------------
ITS: CEO
<PAGE> 57
EXHBIT "A"
<PAGE> 58
AMENDMENT TO LEASE ADDENDUM #6
January 29, 1998
This Agreement (the "Agreement") is dated for reference purposes only
and is made by and between Sierra Pacific Properties, Inc., (the "Landlord") and
Bay Area Seating Service, Inc., a California Corporation (the "Tenant") d.b.a.
BASS Tickets
RECITALS
This Agreement is made with reference to the following facts and
objectives:
A. Landlord and Tenant entered into a written Office Building
Lease and Lease Addendum dated December 29, 1989, a Lease
Addendum #3 dated December 18, 1991, wherein Lease Addendum #2
dated June 4, 1991 was cancelled, a Lease Addendum #4 dated
May 17, 1994 and Amendment to Lease Addendum #4 dated June 9,
1994 and Amendment to Lease Addendum #5 dated July 30, 1997
(collectively referred to as the "Lease"), in which Landlord
leased to Tenant and Tenant leased from Landlord certain
premises located at 1855 Gateway Blvd., Suites 500, 630 and
670 California. (the "Premises").
B. Tenant desires to lease additional space in the Building known
as 1855 Gateway Boulevard, Suite 170 on the terms and
conditions agreed to herein.
C. Landlord and Tenant wish to amend the Lease, as provided in
this Agreement.
NOW THEREFORE, in consideration of the mutual provisions herein
contained and the detriment to be suffered by each of the parties, Landlord and
Tenant agree as follows:
1. Definitions. All capitalized terms not defined herein shall
have the meanings defined in the Lease.
2. The following paragraphs shall be added to the Lease.
34. Additional Premises. Landlord leases to Tenant and
Tenant leases from Landlord the Additional Premises
located at 1855 Gateway Boulevard, Suite 170 Concord,
CA and consisting of approximately 592 rentable
square feet as referenced on the attached Exhibit "A"
(the "Additional Premises").
35. Additional Minimum Rent. The Minimum Rent for the
Additional Premises ("the Additional Minimum Rent")
shall be $1,000.00 per month beginning February 1,
1998, and each month thereafter during the Additional
Term, as defined herein.
36. Additional Term. The term of the Lease for the
Additional Premises (the "Additional Term") shall be
on a month-to-month basis commencing on February 1,
1998 and cancellable by thirty (30) days advance
written notice by either party hereto.
38. Tenant Improvements. Landlord leases the Additional
Premises and Tenant accepts the Additional Premises
in their "AS IS" CONDITION.
6. Effectiveness of Lease. Except as set forth in this Amendment,
all provisions of the Lease shall remain unchanged and in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to Lease
this ________ day of __________, 1998.
LANDLORD:
SIERRA PACIFIC PROPERTIES, INC.
BY:
------------------------------------
DOUGLAS W. MESSNER
ITS: VICE PRESIDENT - COO
BY:
------------------------------------
MARK D. WICKHAM
ITS: VICE PRESIDENT - CFO
TENANT:
BAY AREA SEATING SERVICE, A CALIFORNIA
CORPORATION, D.B.A. BASS TICKETS
BY: /s/
------------------------------------
ITS: VP & GM
-----------------------------------
<PAGE> 59
EXHIBIT "A"
<PAGE> 60
AMENDMENT TO LEASE #7
June 25, 1998
This Agreement (the "Agreement") is dated for reference purposes only and is
made by and between Sierra Pacific Properties, Inc., (the "Landlord") and Bay
Area Seating Service, Inc. a California Corporation (the "Tenant") d.b.a.
BASS Tickets.
RECITALS
This Agreement is made with the reference to the following facts and objectives:
A. Landlord and Tenant entered into a written Office Building Lease and Lease
Addendum dated December 29, 1989, a Lease Addendum #3 dated December 18, 1991,
wherein Lease Addendum #2 dated June 4, 1991 was canceled, a Lease Addendum #4
dated May 17, 1994 and Amendment to Lease Addendum #4 dated June 9, 1994, a
Amendment to Lease Addendum #5 dated July 30, 1997 and Amendment to Lease #6
dated January 29, 1998 (collectively referred to as the "Lease") in which
Landlord leased to Tenant and Tenant leased from Landlord certain premises
located at 1855 Gateway Boulevard, Suites 600, 630, 670, 125 and 170 (the
"Premises").
B. Tenant desires to lease additional space in the Building known as 1855
Gateway Boulevard, Suite 240 on the terms and conditions agreed to herein.
C. Landlord and Tenant wish to amend the Lease, as provided in this Agreement.
NOW THEREFORE, in consideration on the mutual provisions herein contained and
the detriment to be suffered by each of the parties, Landlord and Tenant agree
as follows:
1. Definitions. All capitalized terms not defined herein shall have the meanings
defined in the Lease.
2. Additional Premises. Landlord leases to Tenant and Tenant leases from
Landlord additional Premises located at 1855 Gateway Boulevard, Suite 240
Concord, California consisting of approximately 2,965 rentable square feet as
referenced on the attached Exhibit "A" (the "Additional Premises"). 2A. * 3.
Minimum Rent. The Minimum Rent for the Additional Premises shall be $5,040.50
per month beginning August 1 July 16, 1998 and each month thereafter through
July 4, 1999.
4. Tenant Improvements. Landlord leases the Additional Premises and Tenant
accepts the Additional Premises in their "as is" condition. Tenant may take
occupancy of the Additional Premises on August 1, 1998.
5. Parking. Commencing on August 1 July 16, 1998, Tenant shall have the right to
use nine (9) unreserved parking tags in the Concord Gateway II garage, not to
exceed a three (3) per 1,000 over all parking ratio. Landlord reserves the right
to convert all or a portion of the garage and or Tenant's parking to valet if
Landlord deems necessary.
6. Base Year. Tenant's Base Year as defined under Paragraph 5 of the Lease for
the said Additional Premises shall be 1998.
7. Tenant's Proportionate Share. Tenant's Proportionate Share of total rentable
area in the Building for the Additional Premises shall be .985%.
8. Effectiveness of Lease. Except as set forth in this Amendment, all provisions
of the Lease shall remain unchanged and in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to Lease
this 14th day of July, 1998.
LANDLORD: TENANT:
SIERRA PACIFIC PROPERTIES, INC. BAY AREA SEATING
SERVICE, INC., a California
Corporation, d.b.a. BASS Tickets
By: /s/ By: /s/
---------------------------- -------------------------------------
Douglas W. Messner
Its: Vice President - COO Its: VP & GM
---------------------------- -------------------------------------
By: /s/ By:
---------------------------- -------------------------------------
Thomas Seeno
Its: President Its:
---------------------------- -------------------------------------
*2A. Term. The Term of this Amendment shall commence August 1, 1998, and
shall expire on July 4, 1999. Upon expiration, Tenant shall have
vacated the Additional Premises and returned the Premises to Landlord
in the condition as depicted in Article 32 of the Office Building
Lease. Tenant shall have no option period to extend the Term of the
Additional Premises.
<PAGE> 61
Exhibit A