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STANDARD OFFICE LEASE
BY AND BETWEEN
ARDEN REALTY LIMITED PARTNERSHIP,
A MARYLAND LIMITED PARTNERSHIP,
AS LANDLORD,
AND
C-BRIDGE INTERNET SOLUTIONS, INC.,
A DELAWARE CORPORATION,
AS TENANT
SUITE 425
HOWARD HUGHES TOWER
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TABLE OF CONTENTS
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Page
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ARTICLE 1 BASIC LEASE PROVISIONS......................... 1
ARTICLE 2 TERM/PREMISES.................................. 2
ARTICLE 3 RENTAL......................................... 2
(a) Basic Rental................................... 2
(b) Increase in Direct Costs....................... 2
(c) Definitions.................................... 3
(d) Determination of Payment....................... 5
ARTICLE 4 SECURITY DEPOSIT............................... 6
(a) Security Deposit............................... 6
(b) Additional Security Deposit.................... 7
ARTICLE 5 HOLDING OVER................................... 9
ARTICLE 6 PERSONAL PROPERTY TAXES........................ 9
ARTICLE 7 USE............................................ 9
ARTICLE 8 CONDITION OF PREMISES.......................... 10
ARTICLE 9 REPAIRS AND ALTERATIONS........................ 10
ARTICLE 10 LIENS.......................................... 11
ARTICLE 11 PROJECT SERVICES............................... 12
ARTICLE 12 RIGHTS OF LANDLORD............................. 13
ARTICLE 13 INDEMNITY; EXEMPTION OF LANDLORD FROM LIABILITY 14
(a) Indemnity...................................... 14
(b) Exemption of Landlord from Liability........... 14
ARTICLE 14 INSURANCE...................................... 14
(a) Tenant's Insurance............................. 14
(b) Form of Policies............................... 15
(c) Landlord's Insurance........................... 15
(d) Waiver of Subrogation.......................... 15
(e) Compliance with Law............................ 15
ARTICLE 15 ASSIGNMENT AND SUBLETTING...................... 16
ARTICLE 16 DAMAGE OR DESTRUCTION.......................... 17
ARTICLE 17 SUBORDINATION.................................. 18
ARTICLE 18 EMINENT DOMAIN................................. 19
ARTICLE 19 DEFAULT........................................ 19
(a) Tenant's Default............................... 19
(b) Landlord's Default............................. 20
ARTICLE 20 REMEDIES....................................... 20
ARTICLE 21 TRANSFER OF LANDLORD'S INTEREST................ 21
ARTICLE 22 BROKER......................................... 21
ARTICLE 23 PARKING........................................ 22
ARTICLE 24 WAIVER......................................... 22
1
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ARTICLE 25 ESTOPPEL CERTIFICATE........................... 23
ARTICLE 26 LIABILITY OF LANDLORD.......................... 23
ARTICLE 27 INABILITY TO PERFORM........................... 24
ARTICLE 28 HAZARDOUS WASTE................................ 24
ARTICLE 29 SURRENDER OF PREMISES; REMOVAL OF PROPERTY..... 25
ARTICLE 30 MISCELLANEOUS.................................. 26
(a) Severability; Entire Agreement................. 26
(b) Attorneys' Fees; Waiver of Jury Trial.......... 26
(c) Time of Essence................................ 26
(d) Headings; Joint and Several.................... 26
(e) Reserved Area.................................. 26
(f) NO OPTION ..................................... 26
(g) Use of Project Name; Improvements.............. 26
(h) Rules and Regulations.......................... 27
(i) Quiet Possession............................... 27
(j) Rent........................................... 27
(k) Successors and Assigns......................... 27
(l) Notices........................................ 27
(m) Access......................................... 27
(n) Right of Landlord to Perform................... 27
(o) Access, Changes in Project, Facilities, Name... 27
(p) Signing Authority.............................. 28
(q) Intentionally Omitted.......................... 28
(r) Substitute Premises ........................... 28
(s) Survival of Obligations........................ 28
(t) Confidentiality................................ 28
(u) Governing Law.................................. 28
(v) Exhibits and Addendum.......................... 28
ARTICLE 31 OPTION TO EXTEND............................... 28
(a) Option Right................................... 28
(b) Option Rent.................................... 29
(c) Exercise of Option............................. 29
ARTICLE 32 DIRECTORY...................................... 29
Exhibit "A" Premises
Exhibit "B" Rules and Regulations
Exhibit "C" Notice of Lease Term Dates and Tenant's Proportionate Share
Exhibit "D" Tenant Work Letter
Exhibit "E" Letter of Credit
2
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INDEX
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Page(s)
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Abatement Event..................................... 13
Abatement Notice.................................... 13
Abatement Period.................................... 2
ADA................................................. 4
Additional Rent..................................... 3
Additional Security Deposit......................... 7
Alterations......................................... 10
Approved Working Drawings........................... Exhibit D
Architect........................................... Exhibit D
Base Year........................................... 1
Base, Shell and Core................................ Exhibit D
Basic Rental........................................ 1
Brokers............................................. 1
Claims.............................................. 14
Code................................................ Exhibit D
Commencement Date................................... 1
Construction Drawings............................... Exhibit D
Contractor.......................................... Exhibit D
Cosmetic Alterations................................ 11
Cost Proposal....................................... Exhibit D
Cost Proposal Delivery Date......................... Exhibit D
Damage Repair Estimate.............................. 17
Direct Costs........................................ 3
Eligibility Period.................................. 13
Engineers........................................... Exhibit D
Estimate............................................ 5
Estimate Statement.................................. 5
Estimated Excess.................................... 5
Event of Default.................................... 19
Excess.............................................. 5
Expiration Date..................................... 1
Final Space Plan.................................... Exhibit D
Final Working Drawings.............................. Exhibit D
First Month's Rent.................................. 2
Force Majeure....................................... 24
Hazardous Material.................................. 24
Improvement Allowance............................... Exhibit D
Improvement Allowance Items......................... Exhibit D
Improvements........................................ Exhibit D
Interest Notice..................................... 29
Landlord............................................ 1
Landlord Supervision Fee............................ Exhibit D
Laws................................................ 25
Lease............................................... 1
Lease Year.......................................... 2
Market Rent......................................... 29
Operating Costs..................................... 3
Option.............................................. 28
Option Rent......................................... 29
Option Rent Notice.................................. 29
Option Term......................................... 29
Original Tenant..................................... 28
Over-Allowance Amount............................... Exhibit D
Parking Passes...................................... 1
Permits............................................. Exhibit D
Permitted Assignee.................................. 29
Permitted Use....................................... 1
Premises............................................ 1
Project............................................. 1
3
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Real Property....................................... 3
Reduction Date...................................... 7
Representative...................................... 23
Review Period....................................... 6
Security Deposit.................................... 1, 6
Specifications...................................... Exhibit D
Square Footage...................................... 1
Standard Improvement Package........................ Exhibit D
Statement........................................... 6
Substantial Completion.............................. Exhibit D
Tax Costs........................................... 3
Tenant.............................................. 1
Tenant Delays....................................... Exhibit D
Tenant Improvements................................. 10
Tenant's Acceptance................................. 29
Tenant's Proportionate Share........................ 1
Term................................................ 1
Time Deadlines...................................... Exhibit D
Transfer............................................ 17
Transfer Premium.................................... 17
Transferee.......................................... 17
4
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STANDARD OFFICE LEASE
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This Standard Office Lease ("LEASE") is made and entered into as of the
11th day of May, 2000, by and between ARDEN REALTY LIMITED PARTNERSHIP, a
Maryland limited partnership ("LANDLORD"), and C-BRIDGE INTERNET SOLUTIONS,
INC., a Delaware corporation ("TENANT").
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the
premises described as Suite No. 425, as designated on the plan attached hereto
and incorporated herein as Exhibit "A" ("PREMISES"), of the project ("PROJECT")
now known as Howard Hughes Tower whose address is 6701 Center Drive West, Los
Angeles, California 90045 for the Term and upon the terms and conditions
hereinafter set forth, and Landlord and Tenant hereby agree as follows:
ARTICLE 1
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BASIC LEASE PROVISIONS
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<TABLE>
<CAPTION>
<C> <C> <S>
A. TERM: The period from the Commencement Date through
the Expiration Date.
Commencement Date: May 11, 2000.
Expiration Date: July 31, 2005 (subject to adjustment as
provided in Article 2 below).
B. SQUARE FOOTAGE: 10,064 rentable (8,867 usable) square feet
C. BASIC RENTAL:
</TABLE>
<TABLE>
<CAPTION>
Annual Monthly Monthly Basic Rental
Lease Months* Basic Rental Basic Rental Per Rentable Square Foot
-------------------- --------------- --------------- -------------------------------
<S> <C> <C> <C> <C>
1-12 $326,073.60 $27,172.80 $2.70
13-24 $332,112.00 $27,676.00 $2.75
25-36 $338,150.40 $28,179.20 $2.80
37-48 $344,188.80 $28,682.40 $2.85
49-60 $350,227.20 $29,185.60 $2.90
</TABLE>
*Commencing after expiration of the Abatement Period.
<TABLE>
<CAPTION>
<C> <C> <S>
D. BASE YEAR: 2000
E. TENANT'S PROPORTIONATE SHARE: 3.21%
F. SECURITY DEPOSIT: A Security Deposit of $29,185.60 shall be due
and payable by Tenant to Landlord upon Tenant's
execution of this Lease, together with an
Additional Security Deposit in the amount of
$364,558.58 as provided in Section 4(b) hereof.
G. PERMITTED USE: General office use.
H. BROKERS: Grubb & Ellis
I. PARKING PASSES: Tenant shall have the use of two point seven
(2.7) unreserved parking passes for each 1,000
usable square feet contained in the Premises,
which equals twenty-four (24) passes, at the
rate provided in Article 23 hereof.
</TABLE>
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<TABLE>
<CAPTION>
<C> <C> <S>
J. FIRST MONTH'S RENT: The first full month's rent of $27,172.80 shall
be due and payable by Tenant to Landlord upon
Tenant's execution of this Lease.
</TABLE>
ARTICLE 2
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TERM/PREMISES
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The Term of this Lease shall commence on the Commencement Date as set forth
in Article 1.A. of the Basic Lease Provisions and shall, subject to Tenant's
exercise of the Option set forth in Article 31 hereof, end on the Expiration
Date set forth in Article 1.A. of the Basic Lease Provisions. Notwithstanding
the fact that the Commencement Date has occurred, Tenant shall not be
responsible for the payment of Basic Rental during the period ("ABATEMENT
PERIOD") from the Commencement Date until the earlier of (i) the date Tenant
first commences to conduct business in the Premises and (ii) date of Substantial
Completion of Improvements in the Premises. For purposes of this Lease, the
term "LEASE YEAR" shall mean each consecutive twelve (12) month period during
the Lease Term, with the first Lease Year commencing on the day after the date
of expiration of the Abatement Period; however, (a) if the date of expiration of
the Abatement Period falls on a day other than the last day of a calendar month,
the first Lease Year shall end on the last day of the eleventh (11th) month
after the date of expiration of the Abatement Period and the second (2nd) and
each full calendar succeeding Lease Year shall commence on the first day of the
next calendar month, and (b) the last Lease Year shall end on the Expiration
Date. As of the date of this Lease, the parties anticipate the date of
Substantial Completion of the Improvements in the Premises will be July 31,
2000. However, if the actual date of expiration of the Abatement Period is
other than July 31, 2000, the Expiration Date shall be revised to be the date
which is the fifth (5th) anniversary of the date of expiration of the Abatement
Period; provided, however, that if the date of expiration of the Abatement
Period is a date other than the last day of a month, the Expiration Date shall
be the last day of the month which is sixty (60) months after the month in which
the date of expiration of the Abatement Period falls, unless extended or earlier
terminated pursuant to this Lease. Any such revision to the Expiration Date
shall be memorialized in the Commencement Letter. If Landlord is unable to
deliver possession of the Premises to Tenant on or before the anticipated date
of expiration of the Abatement Period, Landlord shall not be subject to any
liability for its failure to do so, and such failure shall not affect the
validity of this Lease nor the obligations of Tenant hereunder. Landlord and
Tenant hereby stipulate that the Premises contains the number of square feet
specified in Article 1.B. of the Basic Lease Provisions. Landlord may deliver
to Tenant a Commencement Letter in a form substantially similar to that attached
hereto as Exhibit "C", which Tenant shall execute and return to Landlord within
five (5) days of receipt thereof. Failure of Tenant to timely execute and
deliver the Commencement Letter shall constitute acknowledgment by Tenant that
the statements included in such notice are true and correct, without exception.
ARTICLE 3
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RENTAL
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(a) Basic Rental. Commencing upon expiration of the Abatement Period, Tenant
agrees to pay to Landlord during the Term hereof, at Landlord's office or to
such other person or at such other place as directed from time to time by
written notice to Tenant from Landlord, the initial monthly and annual sums as
set forth in Article 1.C of the Basic Lease Provisions, payable in advance on
the first day of each calendar month, without demand, setoff or deduction except
as otherwise expressly provided in this Lease, and in the event this Lease
commences or the date of expiration of this Lease occurs other than on the first
day or last day of a calendar month, the rent for such month shall be prorated.
Notwithstanding the foregoing, the first full month's rent shall be paid to
Landlord in accordance with Article 1.J. of the Basic Lease Provisions.
(b) Increase in Direct Costs. The term "BASE YEAR" means the calendar year
set forth in Article 1.D. of the Basic Lease Provisions. If, in any calendar
year during the Term of this Lease, the "Direct Costs" (as hereinafter defined)
paid or incurred by Landlord shall be higher than the Direct Costs for the Base
Year, Tenant shall pay an additional sum for such and each subsequent calendar
year equal to the product of the amount set forth in Article 1.E. of the Basic
Lease Provisions multiplied by such increased amount of "Direct Costs." In the
event either the
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Premises and/or the Project is expanded or reduced, then Tenant's Proportionate
Share shall be appropriately adjusted, and as to the calendar year in which such
change occurs, Tenant's Proportionate Share for such year shall be determined on
the basis of the number of days during that particular calendar year that such
Tenant's Proportionate Share was in effect. In the event this Lease shall
terminate on any date other than the last day of a calendar year, the additional
sum payable hereunder by Tenant during the calendar year in which this Lease
terminates shall be prorated on the basis of the relationship which the number
of days which have elapsed from the commencement of said calendar year to and
including said date on which this Lease terminates bears to three hundred sixty
(360). Any and all amounts due and payable by Tenant pursuant to Article
3(b),(c) and (d) hereof shall be deemed "ADDITIONAL RENT" and Landlord shall be
entitled to exercise the same rights and remedies upon default in these payments
as Landlord is entitled to exercise with respect to defaults in monthly Basic
Rental payments.
(c) Definitions. As used herein the term "DIRECT COSTS" shall mean the
sum of the following:
(i) "TAX COSTS", which shall mean any and all real estate taxes and
other similar charges on real property or improvements, assessments, water and
sewer charges, and all other charges assessed, reassessed or levied upon the
Project and appurtenances thereto and the parking or other facilities thereof,
or the real property thereunder (collectively the "REAL PROPERTY") or
attributable thereto or on the rents, issues, profits or income received or
derived therefrom which are assessed, reassessed or levied by the United States,
the State of California or any local government authority or agency or any
political subdivision thereof, and shall include Landlord's reasonable legal
fees, costs and disbursements incurred in connection with proceedings for
reduction of Tax Costs or any part thereof; provided, however, if at any time
after the date of this Lease the methods of taxation now prevailing shall be
altered so that in lieu of or as a supplement to or a substitute for the whole
or any part of any Tax Costs, there shall be assessed, reassessed or levied (a)
a tax, assessment, reassessment, levy, imposition or charge wholly or partially
on the rents, or (b) a tax, assessment, reassessment, levy (including but not
limited to any municipal, state or federal levy), imposition or charge measured
by or based in whole or in part upon the Real Property and imposed upon
Landlord, or (c) a license fee measured by the rent payable under this Lease,
then all such taxes, assessments, reassessments or levies or the part thereof so
measured or based, shall be deemed to be included in the term "Direct Costs." In
no event shall Tax Costs included in Direct Costs for any year subsequent to the
Base Year be less than the amount of Tax Costs included in Direct Costs for the
Base Year. In addition, when calculating Tax Costs for the Base Year, special
assessments shall only be deemed included in Tax Costs for the Base Year to the
extent that such special assessments are included in Tax Costs for the
applicable subsequent calendar year during the Term. Notwithstanding anything to
the contrary contained in this Section 3(c)(i), there shall be excluded from Tax
Costs (i) all excess profit taxes, franchise taxes, gift taxes, capital stock
taxes, inheritance taxes and succession taxes, estates taxes, federal and state
income taxes, and other taxes to the extent applicable to Landlord's general or
net income (as opposed to rents or receipts attributable to the operations of
the Project), (ii) any items included as Operating Costs, and (iii) any items
paid by Tenant under Article 6 of this Lease.
(ii) "OPERATING COSTS", which shall mean all costs and expenses incurred
by Landlord in connection with the maintenance, operation, replacement,
ownership and repair of the Project, the equipment, the intrabuilding network
cable, adjacent walks, malls and landscaped and common areas and the parking
structure, areas and facilities of the Project, including, but not limited to,
reasonable salaries, wages, medical, surgical and general welfare benefits and
pension payments, payroll taxes, fringe benefits, employment taxes, workers'
compensation, uniforms and dry cleaning thereof for all persons who perform
duties connected with the operation, maintenance and repair of the Project, its
equipment, the intrabuilding network cable and the adjacent walks and landscaped
areas, including janitorial, gardening, security, parking, operating engineer,
elevator, painting, plumbing, electrical, carpentry, heating, ventilation, air
conditioning, window washing, hired services, a reasonable allowance for
depreciation of the cost of acquiring or the rental expense of personal property
used in the maintenance, operation and repair of the Project, accountant's fees
incurred in the preparation of rent adjustment statements, reasonable legal
fees, real estate tax consulting fees, personal property taxes on property used
in the maintenance and operation of the Project, fees, costs, expenses or dues
payable pursuant to the terms of any covenants, conditions or restrictions or
owners' association pertaining to the Project, capital expenditures incurred to
effect economies of operation of, or
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stability of services to, the Project and capital expenditures required by
government regulations, laws, or ordinances not in effect as of the Commencement
Date; the cost of all charges for electricity, gas, water and other utilities
furnished to the Project, including any taxes thereon; the cost of all charges
for fire and extended coverage, liability and all other insurance for the
Project carried by Landlord; the cost of all building and cleaning supplies and
materials; the cost of all charges for cleaning, maintenance and service
contracts and other services with independent contractors and administration
fees; a reasonable property management fee (which fee may be imputed if Landlord
has internalized management or otherwise acts as its own property manager) and
license, permit and inspection fees relating to the Project. In the event,
during any calendar year, the Project is less than ninety-five percent (95%)
occupied at all times, Operating Costs shall be adjusted to reflect the
Operating Costs of the Project as though ninety-five percent (95%) were occupied
at all times, and the increase or decrease in the sums owed hereunder shall be
based upon such Operating Costs as so adjusted. In no event shall costs for any
item of utilities included in Direct Costs for any year subsequent to the Base
Year be less than the amount included in Direct Costs for the Base Year for such
utility item. Notwithstanding anything to the contrary set forth in this Article
3, when calculating Operating Costs for the Base Year, Operating Costs shall
exclude (a) market-wide labor-rate increases due to extraordinary circumstances
including, but not limited to, boycotts and strikes, (b) utility rate increases
due to extraordinary circumstances including, but not limited to, conservation
surcharges, boycotts, embargoes or other shortages, and (c) amortization of any
capital items including, but not limited to, capital improvements, capital
repairs and capital replacements (including such amortized costs where the
actual improvement, repair or replacement was made in prior years).
Notwithstanding anything above to the contrary, Operating Costs shall not
include (1) the cost of providing any service directly to and paid directly by
any tenant (outside of such tenant's Direct Cost payments); (2) the cost of any
items for which Landlord is reimbursed by insurance proceeds, condemnation
awards, a tenant of the Project, or otherwise to the extent so reimbursed; (3)
any real estate brokerage commissions or other costs incurred in procuring
tenants, or any fee in lieu of commission; (4) depreciation, amortization of
principal and interest on mortgages or ground lease payments (if any); (5) costs
of items considered capital repairs, replacements, improvements and equipment
under generally accepted accounting principles consistently applied except as
expressly included in Operating Costs pursuant to the definition above; (6)
costs incurred by Landlord due to the violation by Landlord or any tenant of the
terms and conditions of any lease of space in the Project or any law, code,
regulation, ordinance or the like; (7) Landlord's general corporate overhead and
general and administrative expenses; (8) any compensation paid to clerks,
attendants or other persons in commercial concessions operated by Landlord
(other than in the parking facility for the Project); (9) costs incurred in
connection with upgrading the Project to comply with disability, life, seismic,
fire and safety codes, ordinances, statutes, or other laws in effect prior to
the Commencement Date, including, without limitation, the Americans with
Disabilities Act ("ADA"), including penalties or damages incurred due to such
non-compliance; (10) bad debt expenses and interest, principal, points and fees
on debts (except in connection with the financing of items which may be included
in Operating Costs) or amortization on any ground lease, mortgage or mortgages
or any other debt instrument encumbering the Project (including the land on
which the Project is situated); (11) marketing costs, including leasing
commissions, attorneys' fees in connection with the negotiation and preparation
of letters, deal memos, letters of intent, leases, subleases and/or assignments,
space planning costs, and other costs and expenses incurred in connection with
lease, sublease and/or assignment negotiations and transactions with present or
prospective tenants or other occupants of the Project, including attorneys' fees
and other costs and expenditures incurred in connection with disputes with
present or prospective tenants or other occupants of the Project; (12) real
estate brokers' leasing commissions; (13) costs, including permit, license and
inspection costs, incurred with respect to the installation of other tenants' or
occupants' improvements made for tenants or other occupants in the Project or
incurred in renovating or otherwise improving, decorating, painting or
redecorating vacant space for tenants or other occupants in the Project; (14)
any costs expressly excluded from Operating Costs elsewhere in this Lease; (15)
costs of any items (including, but not limited to, costs incurred by Landlord
for the repair of damage to the Project) to the extent Landlord receives
reimbursement from insurance proceeds or from a third party (except that any
deductible amount under any insurance policy shall be included within Operating
Costs); (16) rentals and other related expenses for leasing an HVAC system,
elevators, or other items (except when needed in connection with normal repairs
and maintenance of the Project) which if purchased, rather than rented, would
constitute a capital improvement not included in Operating Costs pursuant to
this Lease; (17) depreciation,
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amortization and interest payments, except as specifically included in Operating
Costs pursuant to the terms of this Lease and except on materials, tools,
supplies and vendor-type equipment purchased by Landlord to enable Landlord to
supply services Landlord might otherwise contract for with a third party, where
such depreciation, amortization and interest payments would otherwise have been
included in the charge for such third party's services, all as determined in
accordance with generally accepted accounting principles, consistently applied,
and when depreciation or amortization is permitted or required, the item shall
be amortized over its reasonably anticipated useful life; (18) costs incurred by
Landlord for alterations (including structural additions), repairs, equipment
and tools which are of a capital nature and/or which are considered capital
improvements or replacements under generally accepted accounting principles,
consistently applied, except as specifically included in Operating Costs
pursuant to the terms of this Lease; (19) expenses in connection with services
or other benefits which are not offered to Tenant or for which Tenant is charged
for directly but which are provided to another tenant or occupant of the
Project, without charge; (20) electric power costs or other utility costs for
which any tenant directly contracts with the local public service company (but
Landlord shall have the right to "gross up" as if such space was vacant); (21)
costs incurred in connection with the operation of retail stores selling
merchandise and restaurants in the Project to the extent such costs are in
excess of the costs Landlord reasonably estimates would have been incurred had
such space been used for general office use; (22) costs (including in connection
therewith all attorneys' fees and costs of settlement, judgments and/or payments
in lieu thereof) arising from claims, disputes or potential disputes in
connection with potential or actual claims litigation or arbitrations pertaining
to Landlord and/or the Project, other than such claims or disputes with vendors
respecting any services or equipment used in the operation of the Building by
Landlord (provided that any amounts received by Landlord as awards or payments
on settlement of such claims shall be applied first to offset the costs
thereof); (23) costs associated with the operation of the business of the
partnership which constitutes Landlord as the same are distinguished from the
costs of operation of the Project; (24) costs incurred in connection with the
original construction of the Project; (25) costs of correcting defects in or
inadequacy of the initial design or construction of the Project; and (26) costs
incurred to (i) comply with laws relating to the removal of any "Hazardous
Material," as that term is defined in Article 28 of this Lease, which was in
existence on the Project prior to the Commencement Date, and (ii) to remove,
remedy, contain, or treat any Hazardous Material, which Hazardous Material is
brought onto the Project after the date hereof by Landlord or any other tenant
of the Project.
(d) Determination of Payment.
(i) If for any calendar year ending or commencing within the Term,
Tenant's Proportionate Share of Direct Costs for such calendar year exceeds
Tenant's Proportionate Share of Direct Costs for the Base Year, then Tenant
shall pay to Landlord, in the manner set forth in Sections 3(d)(ii) and (iii),
below, and as additional rent, an amount equal to the excess (the "EXCESS").
(ii) Landlord shall give Tenant a yearly expense estimate statement (the
"ESTIMATE STATEMENT") which shall set forth Landlord's reasonable estimate (the
"ESTIMATE") of what the total amount of Direct Costs for the then-current
calendar year shall be and the estimated Excess (the "ESTIMATED EXCESS") as
calculated by comparing Tenant's Proportionate Share of Direct Costs for such
calendar year, which shall be based upon the Estimate, to Tenant's Proportionate
Share of Direct Costs for the Base Year. The failure of Landlord to timely
furnish the Estimate Statement for any calendar year shall not preclude Landlord
from enforcing its rights to collect any Estimated Excess under this Article 3.
If pursuant to the Estimate Statement an Estimated Excess is calculated for the
then-current calendar year, Tenant shall pay, with its next installment of
Monthly Basic Rental due, a fraction of the Estimated Excess for the then-
current calendar year (reduced by any amounts paid pursuant to the last sentence
of this Section 3(d)(ii)). Such fraction shall have as its numerator the number
of months which have elapsed in such current calendar year to the month of such
payment, both months inclusive, and shall have twelve (12) as its denominator.
Until a new Estimate Statement is furnished, Tenant shall pay monthly, with the
Monthly Basic Rental installments, an amount equal to one-twelfth (1/12) of the
total Estimated Excess set forth in the previous Estimate Statement delivered by
Landlord to Tenant.
(iii) In addition, Landlord shall use reasonable efforts to give to
Tenant on or before the first day of April (but in any event on or before the
first day of July) following the end
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of each calendar year, a statement (the "STATEMENT") which shall state the
Direct Costs incurred or accrued for such preceding calendar year, and which
shall indicate the amount, if any, of the Excess. Upon receipt of the Statement
for each calendar year during the Term, if amounts paid by Tenant as Estimated
Excess are less than the actual Excess as specified on the Statement, Tenant
shall pay, with its next installment of Monthly Basic Rental due, the full
amount of the Excess for such calendar year, less the amounts, if any, paid
during such calendar year as Estimated Excess. If, however, the Statement
indicates that amounts paid by Tenant as Estimated Excess are greater than the
actual Excess as specified on the Statement, such overpayment shall be credited
against Tenant's next installments of Estimated Excess. The failure of Landlord
to timely furnish the Statement for any calendar year shall not prejudice
Landlord from enforcing its rights under this Article 3. Even though the Term
has expired and Tenant has vacated the Premises, when the final determination is
made of Tenant's Proportionate Share of the Direct Costs for the calendar year
in which this Lease terminates, if an Excess is present, Tenant shall
immediately pay to Landlord an amount as calculated pursuant to the provisions
of this Article 3(d). The provisions of this Section 3(d)(iii) shall survive the
expiration or earlier termination of the Term.
(iv) Within one hundred twenty (120) days after receipt of a Statement
by Tenant ("REVIEW PERIOD"), if Tenant disputes the amount set forth in the
Statement, Tenant's employees or an independent certified public accountant
(which accountant is a member of a nationally or regionally recognized
accounting firm and is hired on a non-contingency fee basis), designated by
Tenant, may, after reasonable notice to Landlord and at reasonable times,
inspect Landlord's records at Landlord's offices, provided that Tenant is not
then in default after expiration of all applicable cure periods of any
obligation under this Lease (including, but not limited to, the payment of the
amount in dispute) and provided further that Tenant and such accountant or
representative shall, and each of them shall use their commercially reasonable
efforts to cause their respective agents and employees to, maintain all
information contained in Landlord's records in strict confidence.
Notwithstanding the foregoing, Tenant shall only have the right to review
Landlord's records one (1) time during any twelve (12) month period. Tenant's
failure to dispute the amounts set forth in any Statement within the Review
Period shall be deemed to be Tenant's approval of such Statement and Tenant,
thereafter, waives the right or ability to dispute the amounts set forth in such
Statement. If after such inspection, but within thirty (30) days after the
Review Period, Tenant notifies Landlord in writing that Tenant still disputes
such amounts, a certification as to the proper amount shall be made in
accordance with Landlord's standard accounting practices, at Tenant's expense,
by an independent certified public accountant reasonably acceptable to Landlord
and Tenant (which shall not be in a firm regularly engaged to provide accounting
services to either Landlord or Tenant) and who is a member of a nationally or
regionally recognized accounting firm, which certification shall be binding upon
Landlord and Tenant. Landlord shall cooperate in good faith with Tenant and the
accountant to show Tenant and the accountant the information upon which the
certification is to be based. However, if such certification by the accountant
proves that the Direct Costs set forth in the Statement were overstated by more
than five percent (5%), then the cost of the accountant and the cost of such
certification shall be paid for by Landlord. Promptly following the parties
receipt of such certification, the parties shall make such appropriate payments
or reimbursements, as the case may be, to each other, as are determined to be
owing pursuant to such certification. Tenant agrees that this section shall be
the sole method to be used by Tenant to dispute the amount of any Direct Costs
payable by Tenant pursuant to the terms of this Lease, and Tenant hereby waives
any other rights at law or in equity relating thereto.
(v) If the Project is a part of a multi-building development, those
Direct Costs attributable to such development as a whole (and not attributable
solely to any individual building therein) shall be allocated by Landlord to the
Project and to the other buildings within such development on an equitable
basis.
ARTICLE 4
---------
SECURITY DEPOSIT
----------------
(a) Security Deposit. Tenant has deposited with Landlord the sum set forth in
Article 1.F. of the Basic Lease Provisions as security for the full and faithful
performance of every provision of this Lease to be performed by Tenant (the
"SECURITY DEPOSIT"). If Tenant breaches any provision of this Lease, including
but not limited to the payment of rent, Landlord
-6-
<PAGE>
may use all or any part of this Security Deposit for the payment of any rent or
any other sums in default, or to compensate Landlord for any other loss or
damage which Landlord may suffer by reason of Tenant's default. If any portion
of said Security Deposit is so used or applied, Tenant shall, within twenty (20)
days after written demand therefor, deposit cash with Landlord in an amount
sufficient to restore the Security Deposit to its original amount. Tenant agrees
that Landlord shall not be required to keep the Security Deposit in trust,
segregate it or keep it separate from Landlord's general funds but Landlord may
commingle the Security Deposit with its general funds and Tenant shall not be
entitled to interest on such Security Deposit. At the expiration of the Lease
Term, and provided there exists no default by Tenant hereunder, the Security
Deposit or any balance thereof shall be returned to Tenant (or, unless expressly
provided to the contrary in any assignment documentation, to Tenant's designee),
provided that subsequent to the expiration of this Lease, Landlord may retain
from said Security Deposit (i) an amount reasonably estimated by Landlord to
cover potential Direct Cost reconciliation payments due with respect to the
calendar year in which this Lease terminates or expires (such amount so retained
shall not, in any event, exceed ten percent (10%) of estimated Direct Cost
payments due from Tenant for such calendar year through the date of expiration
or earlier termination of this Lease and any amounts so retained and not applied
to such reconciliation shall be returned to Tenant within thirty (30) days after
Landlord's delivery of the Statement for such calendar year), (ii) any and all
amounts reasonably estimated by Landlord to cover the anticipated costs to be
incurred by Landlord to remove any signage provided to Tenant under this Lease
and to repair any damage caused by such removal (in which case any excess amount
so retained by Landlord shall be returned to Tenant within thirty (30) days
after such removal and repair), and (iii) any and all amounts permitted by law
or this Article 4. Tenant hereby waives the provisions of Section 1950.7 of the
California Civil Code and all other provisions of law, now or hereafter in
effect, to the extent the same are inconsistent with Landlord's right to claim
those sums specified in this Article 4 above and/or those sums reasonably
necessary to compensate Landlord for any other loss or damage, foreseeable or
unforeseeable, caused by the acts or omissions of Tenant or any officer,
employee, agent, contractor or invitee of Tenant.
(b) Additional Security Deposit. In addition to the Security Deposit set
forth in Section 4(a) above, Tenant shall also deposit with Landlord, an
additional security deposit (the "ADDITIONAL SECURITY DEPOSIT") in the form of
cash or an irrevocable letter of credit as set forth below.
(i) Cash Deposit. In the event Tenant elects to deposit the Additional
Security Deposit in the form of cash, Tenant shall deposit the sum of Three
Hundred Sixty-Four Thousand Five Hundred Fifty-Eight and 58/100 Dollars
($364,558.58) to Landlord concurrently with Tenant's execution and delivery of
this Lease. Landlord will hold such cash Additional Security Deposit in
accordance with the terms of Article 4(a), above, provided, that so long as
Tenant is not in default hereunder, such cash Additional Security Deposit shall
be reduced on each yearly anniversary of Commencement Date (the "REDUCTION
DATE") by the amount of Seventy-Two Thousand Nine Hundred Eleven and 72/100
Dollars ($72,911.72) which amount shall be promptly paid by Landlord to Tenant.
However, if (i) a default by Tenant occurs under this Lease, or (ii)
circumstances exist that would, with notice or lapse of time, or both,
constitute a default by Tenant, and Tenant has failed to cure such default
within the time period permitted by Section 19 of this Lease or such lesser time
as may remain before the relevant Reduction Date as provided above, the cash
Additional Security Deposit shall not thereafter be reduced unless and until
such default shall have been fully cured pursuant to the terms of this Lease, at
which time the cash Additional Security Deposit may be reduced as hereinabove
described. Any unused portion of the cash Additional Security Deposit shall be
returned to Tenant after the expiration of the Term in accordance with Article
4(a), above.
(ii) Letter of Credit. As an alternative to Section 4(b)(i) above,
Tenant may elect to provide Landlord with an irrevocable letter of credit. In
the event Tenant elects this option, Tenant shall concurrently with Tenant's
execution of this Lease, deliver to Landlord an unconditional, irrevocable and
renewable letter of credit ("LETTER OF CREDIT") in favor of Landlord in the form
attached hereto as Exhibit "F" (with any changes thereto subject to Landlord's
approval), issued by a bank reasonably satisfactory to Landlord with a branch
located in California, in the principal amount ("STATED AMOUNT") specified
below, as security for the faithful performance and observance by Tenant of the
terms, provisions and conditions of this Lease. Tenant shall pay all expenses,
points and/or fees incurred by Tenant in obtaining the Letter of Credit. The
Stated Amount shall initially be Three Hundred Sixty-Four Thousand Five
-7-
<PAGE>
Hundred Fifty-Eight and 58/100 Dollars ($364,558.58); provided, however, that
upon the dates specified below ("ADJUSTMENT DATES"), the Stated Amount may be
reduced to the following amounts:
<TABLE>
<CAPTION>
Month Stated Amount
--------------- ----------------
<S> <C>
July 31, 2001 $291,646.86
July 31, 2002 $218,735.14
July 31, 2003 $145,823.42
July 31, 2004 $ 72,911.72
</TABLE>
However, if (i) a default by Tenant occurs under this Lease, or (ii)
circumstances exist that would, with notice or lapse of time, or both,
constitute a default by Tenant, and Tenant has failed to cure such default
within the time period permitted by Section 19 of this Lease or such lesser time
as may remain before the relevant Adjustment Date as provided above, the Stated
Amount shall not thereafter be reduced unless and until such default shall have
been fully cured pursuant to the terms of this Lease, at which time the Stated
Amount may be reduced as hereinabove described. The Letter of Credit shall
state that an authorized officer or other representative of Landlord may make
demand on Landlord's behalf for the Stated Amount of the Letter of Credit, or
any portion thereof, and that the issuing bank must immediately honor such
demand, without qualification or satisfaction of any conditions, other than
those set forth in the form letter of credit attached as Exhibit "E" hereto
except the proper identification of the party making such demand. In addition,
the Letter of Credit shall indicate that it is transferable in its entirety by
Landlord as beneficiary or by any subsequent transferee and that upon receiving
written notice of transfer, and upon presentation to the issuing bank of the
original Letter of Credit, the issuer or confirming bank will reissue the Letter
of Credit naming such transferee as the beneficiary. The Letter of Credit must
remain in effect through September 30, 2005. In no event shall Landlord make
any demand for payment under the Letter of Credit prior to the occurrence of an
Event of Default under and as defined in this Lease; provided, however, that if
the term of the Letter of Credit held by Landlord will expire prior to the last
day of the Term and it is not extended, or a new Letter of Credit for an
extended period of time is not substituted, within thirty (30) days prior to the
expiration of the Letter of Credit, then Landlord shall be entitled to make
demand for the Stated Amount of said Letter of Credit and, thereafter, to hold
such funds in accordance with this Section 4(b)(ii). The Letter of Credit and
any such proceeds thereof shall be held by Landlord as security for the faithful
performance by Tenant of all of the terms, covenants and conditions of this
Lease. If Tenant commits a default with respect to any provision of this Lease,
and such default shall not have been cured prior to the expiration of any
applicable cure period, Landlord may (but shall not be required to) draw upon
all or any portion of the Stated Amount of the Letter of Credit, for the payment
of any sum which is in default, or any other amount which Landlord may spend or
become obligated to spend by reason of Tenant's default or for any loss or
damage which Landlord may suffer by reason of Tenant's default. If any portion
of the Letter of Credit proceeds are so used or applied, Tenant shall, within
ten (10) days after demand therefor, post an additional Letter of Credit in an
amount to cause the aggregate amount of the unused proceeds and such new Letter
of Credit to equal the Stated Amount required in this Section 4(b)(ii) above.
Landlord may then use, apply, or retain such proceeds and Landlord shall not be
required to keep any proceeds from the Letter of Credit separate from its
general funds. Should Landlord sell its interest in the Project during the Term
and if the purchaser assumes the obligations of Landlord under this Lease, and
if Landlord deposits with the purchaser thereof the Letter of Credit or any
proceeds of the Letter of Credit, thereupon Landlord shall be discharged from
any further liability with respect to the Letter of Credit and said proceeds.
Any remaining proceeds of the Letter of Credit held by Landlord after expiration
of the Term, after any deductions described in this Section 4(b)(ii) above,
shall be returned to Tenant or, at Landlord's option, to the last assignee of
Tenant's interest hereunder, within thirty (30) days following the expiration of
the Term.
-8-
<PAGE>
ARTICLE 5
---------
HOLDING OVER
------------
Should Tenant, without Landlord's written consent, hold over after
termination of this Lease, Tenant shall become a tenant from month to month,
only 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, Basic Rental at one hundred fifty percent (150%) of the rate in effect
for the last month of the Term of this Lease, in addition to, and not in lieu
of, all other payments required to be made by Tenant hereunder including but not
limited to Tenant's Proportionate Share of any increase in Direct Costs.
Nothing contained in this Article 5 shall be construed as consent by Landlord to
any holding over of the Premises by Tenant, and Landlord expressly reserves the
right to require Tenant to surrender possession of the Premises to Landlord as
provided in this Lease upon the expiration or earlier termination of the Term.
If Landlord notifies Tenant in writing at least thirty (30) days prior to the
Lease Expiration Date that Landlord has a signed proposal from a succeeding
tenant to lease the Premises and if Tenant fails to surrender the Premises upon
the expiration or termination of this Lease, Tenant agrees to indemnify, defend
and hold Landlord harmless from all costs, loss, expense or liability, including
without limitation, claims made by any succeeding tenant and real estate brokers
claims and attorney's fees and costs.
ARTICLE 6
---------
PERSONAL PROPERTY TAXES
-----------------------
Tenant shall pay, prior to delinquency, all taxes assessed against or
levied upon trade fixtures, furnishings, equipment and all other personal
property of Tenant located in the Premises. In the event any or all of Tenant's
trade fixtures, furnishings, equipment and other personal property shall be
assessed and taxed with property of Landlord, or if the cost or value of any
leasehold improvements in the Premises exceeds the cost or value of a Project-
standard buildout as determined by Landlord and, as a result, real property
taxes for the Project are increased, Tenant shall pay to Landlord its share of
such taxes within ten (10) days after delivery to Tenant by Landlord of a
statement in writing setting forth the amount of such taxes applicable to
Tenant's property or above-standard improvements. Tenant shall pay directly to
the party or entity entitled thereto all business license fees, gross receipts
taxes and similar taxes and impositions which may from time to time be assessed
against or levied upon Tenant, as and when the same become due and before
delinquency. Notwithstanding anything to the contrary contained herein, any
sums payable by Tenant under this Article 6 shall not be included in the
computation of "Tax Costs."
ARTICLE 7
---------
USE
---
Tenant shall use and occupy the Premises only for the use set forth in
Article 1.G. of the Basic Lease Provisions and shall not use or occupy the
Premises or permit the same to be used or occupied for any other purpose without
the prior written consent of Landlord, which consent may be given or withheld in
Landlord's sole and absolute discretion, and Tenant agrees that it will use the
Premises in such a manner so as not to interfere with or infringe the rights of
other tenants in the Project. Tenant shall, at its sole cost and expense,
promptly comply with all laws, statutes, ordinances and governmental regulations
or requirements now in force or which may hereafter be in force relating to or
affecting (i) the condition, use or occupancy of the Premises or the Project
excluding structural changes to the Project not related to Tenant's particular
use of the Premises, and (ii) improvements installed or constructed in the
Premises by or for the benefit of Tenant. Tenant shall not do or permit to be
done anything which would invalidate or increase the cost of any fire and
extended coverage insurance policy covering the Project and/or the property
located therein and Tenant shall comply with all rules, orders, regulations and
requirements of any organization which sets out standards, requirements or
recommendations commonly referred to by major fire insurance underwriters.
Tenant shall promptly upon demand reimburse Landlord for any additional premium
charges for any such insurance policy assessed or increased by reason of
Tenant's failure to comply with the provisions of this Article.
-9-
<PAGE>
ARTICLE 8
---------
CONDITION OF PREMISES
---------------------
Landlord represents that Landlord has taken or shall take the necessary
steps to comply with what Landlord reasonably believes are the requirements of
the ADA in effect as of the date of this Lease as it pertains to the common
areas within the Project. Operating Costs shall not include any costs incurred
by Landlord in connection with upgrading the Project to comply with the
requirements of the ADA that are in effect as of the date of this Lease,
including penalties or damages incurred due to such noncompliance. The Premises
shall be initially improved as provided in, and subject to, the Tenant Work
Letter attached hereto as Exhibit "D" and made a part hereof. The existing
leasehold improvements in the Premises as of the date of this Lease, together
with the Improvements (as defined in the Tenant Work Letter) may be collectively
referred to herein as the "TENANT IMPROVEMENTS." The taking of possession of
the Premises by Tenant shall conclusively establish that the Premises and the
Project were at such time in satisfactory condition subject to compliance with
any obligations in respect of "punch list" items brought to Landlord's attention
in accordance with Section 6.4 of the Tenant Work Letter attached hereto as
Exhibit "D" (and provided that nothing herein contained shall result in a waiver
by Tenant of claims against the Contractor for latent defect not known at the
time of Substantial Completion). Tenant hereby waives subsection 1 of Section
1932 and Sections 1941 and 1942 of the Civil Code of California or any successor
provision of law.
Landlord reserves the right from time to time: (i) to install, use,
maintain, repair, replace and relocate for service to the Premises and/or other
parts of the Project pipes, ducts, conduits, wires, appurtenant fixtures, and
mechanical systems, wherever located in the Premises or the Project, (ii) to
alter, close or relocate any facility in the Premises or the Common Areas or
otherwise conduct any of the above activities for the purpose of complying with
a general plan for fire/life safety for the Project or otherwise and (iii) to
comply with any federal, state or local law, rule or order with respect thereto
or the regulation thereof not currently in effect. Landlord shall attempt to
perform any such work with the least inconvenience to Tenant as possible, but in
no event shall Tenant be permitted to withhold or reduce Basic Rental or other
charges due hereunder as a result of same, make any claim for constructive
eviction or otherwise make claim against Landlord for interruption or
interference with Tenant's business and/or operations.
ARTICLE 9
---------
REPAIRS AND ALTERATIONS
-----------------------
Landlord shall maintain the structural portions of the Project including
the foundation, floor/ceiling slabs, roof, curtain wall, exterior glass,
columns, beams, shafts, stairs, stairwells, elevator cabs and common areas and
shall also maintain and repair the basic mechanical, electrical, lifesafety,
plumbing, sprinkler systems and heating, ventilating and air-conditioning
systems. Except as expressly provided as Landlord's obligation in this Article
9, Tenant shall keep the Premises in good condition and repair. All damage or
injury to the Premises or the Project resulting from the act or negligence of
Tenant, its employees, agents or visitors, guests, invitees or licensees or by
the use of the Premises shall be promptly repaired by Tenant, at its sole cost
and expense, to the satisfaction of Landlord; provided, however, that for damage
to the Project as a result of casualty or for any repairs that may impact the
mechanical, electrical, plumbing, heating, ventilation or air-conditioning
systems of the Project, Landlord shall have the right (but not the obligation)
to select the contractor and oversee all such repairs. Landlord may make any
repairs required by the terms of this Lease to be made by Tenant and which are
not promptly made by Tenant after Tenant's receipt of written notice, if Tenant
shall not commence the making of such repairs within five (5) business days from
receipt of said written notice or if Tenant fails to diligently prosecute said
repairs to completion, and charge Tenant for the cost thereof, which cost shall
be paid by Tenant within five (5) days from invoice from Landlord. Tenant shall
be responsible for the design and function of all non-standard improvements of
the Premises, whether or not installed by Landlord at Tenant's request. Tenant
waives all rights to make repairs at the expense of Landlord, or to deduct the
cost thereof from the rent. Tenant shall make no alterations, changes or
additions in or to the Premises (collectively, "ALTERATIONS") without Landlord's
prior written consent (not to be unreasonably withheld, conditioned or delayed),
and then only by contractors or mechanics approved by Landlord in writing and
upon the approval by Landlord in writing of fully detailed and dimensioned plans
and specifications
-10-
<PAGE>
pertaining to the Alterations in question, to be prepared and submitted by
Tenant at its sole cost and expense. Tenant shall at its sole cost and expense
obtain all necessary approvals and permits pertaining to any Alterations
approved by Landlord. Tenant shall construct such Alterations in a good and
workmanlike manner, in conformance with all applicable federal, state, county
and municipal laws, rules and regulations, pursuant to a valid building permit,
and in conformance with Landlord's construction rules and regulations. If
Landlord, in approving any Alterations, specifies a commencement date therefor,
Tenant shall not commence any work with respect to such Alterations prior to
such date. Notwithstanding anything to the contrary contained herein, Tenant may
make strictly cosmetic changes to the finish work in the Premises (the "COSMETIC
ALTERATIONS") without Landlord's consent, provided that the aggregate cost of
any such alterations does not exceed $25,000 in any twelve (12) month period,
and further provided that such alterations do not (i) require any structural or
other substantial modifications to the Premises, (ii) require any changes to,
nor adversely affect, the systems and equipment of the Project, and (iii) affect
the exterior appearance of the Project. Tenant shall give Landlord at least
fifteen (15) days prior notice of such cosmetic Alterations, which notice shall
be accompanied by reasonably adequate evidence that such changes meet the
criteria contained in this Article 9. Tenant hereby indemnifies, defends and
agrees to hold Landlord free and harmless from all liens and claims of lien, and
all other liability, claims and demands arising out of any work done or material
supplied to the Premises by or at the request of Tenant in connection with any
Alterations. Prior to the commencement of any Alterations, Tenant shall provide
Landlord with evidence that Tenant carries "Builder's All Risk" insurance in an
amount approved by Landlord covering the construction of such Alterations, and
such other insurance as Landlord may reasonably require, it being understood
that all such Alterations shall be insured by Tenant pursuant to Article 14 of
this Lease immediately upon completion thereof. In addition, Landlord may, in
its discretion, require Tenant to obtain a lien and completion bond or some
alternate form of security satisfactory to Landlord in an amount sufficient to
ensure the lien free completion of such Alterations and naming Landlord as a co-
obligee. If permitted Alterations are made, they shall be made at Tenant's sole
cost and expense and shall be and become the property of Landlord, except that
Landlord may, by written notice to Tenant given at least thirty (30) days prior
to the end of the Term, require Tenant at Tenant's expense to remove all
partitions, counters, railings and other Alterations installed by Tenant, and to
repair any damages to the Premises caused by such removal provided that Landlord
shall have notified Tenant that such removal will be required at the end of the
Lease Term which notice shall be given (a) for Alterations requiring the
Landlord's approval, at the time of Landlord's approval, and (b) for Alterations
which do not require Landlord's approval, within five (5) days after Tenant's
request for such a determination. Any and all costs attributable to or related
to the applicable building codes of the city in which the Project is located (or
any other authority having jurisdiction over the Project) arising from Tenants
plans, specifications, improvements, alterations or otherwise shall be paid by
Tenant at its sole cost and expense. With regard to repairs, Alterations or any
other work arising from or related to this Article 9, Landlord shall be entitled
to receive a reasonable administrative/supervision fee (which fee shall vary
depending upon whether or not Tenant orders the work directly from Landlord)
sufficient to compensate Landlord for all overhead, general conditions, fees and
other costs and expenses arising from Landlord's involvement with such work. The
construction of initial improvements to the Premises shall be governed by the
terms of the Tenant Work Letter and not the terms of this Article 9.
ARTICLE 10
----------
LIENS
-----
Tenant shall keep the Premises and the Project free from any mechanics'
liens, vendors liens or any other liens arising out of any work performed,
materials furnished or obligations incurred by Tenant, and agrees to defend,
indemnify and hold harmless Landlord from and against any such lien or claim or
action thereon, together with costs of suit and reasonable attorneys' fees
incurred by Landlord in connection with any such claim or action. Before
commencing any work of alteration, addition or improvement to the Premises,
Tenant shall give Landlord at least ten (10) business days' written notice of
the proposed commencement of such work (to afford Landlord an opportunity to
post appropriate notices of non-responsibility). In the event that there shall
be recorded against the Premises or the Project or the property of which the
Premises is a part any claim or lien arising out of any such work performed,
materials furnished or obligations incurred by Tenant and such claim or lien
shall not be removed or discharged within ten (10) days of filing, Landlord may
notify Tenant that, unless Tenant causes the removal
-11-
<PAGE>
thereof within three (3) business days, Landlord shall pay and discharge the
lien and charge Tenant the amounts so paid and discharged, in which event, if
Tenant fails to cause such removal within such 3-day period, Landlord shall have
the right but not the obligation to pay and discharge said lien without regard
to whether such lien shall be lawful or correct or to require that Tenant
deposit with Landlord in cash, lawful money of the United States, one hundred
fifty percent (150%) of the amount of such claim, which sum may be retained by
Landlord until such claim shall have been removed of record or until judgment
shall have been rendered on such claim and such judgment shall have become
final, at which time Landlord shall have the right to apply such deposit in
discharge of the judgment on said claim and any costs, including attorneys' fees
and costs incurred by Landlord, and shall remit the balance thereof to Tenant.
ARTICLE 11
----------
PROJECT SERVICES
----------------
(a) Landlord agrees to furnish to the Premises, at a cost to be included in
Operating Costs, from 8:00 a.m. to 6:00 p.m. Mondays through Fridays and 9:00
a.m. to 1:00 p.m. on Saturdays, excepting local and national holidays, air
conditioning and heat all in such reasonable quantities as in the judgment of
Landlord is reasonably necessary for the comfortable occupancy of the Premises.
In addition, Landlord shall provide electric current for normal lighting and
normal office machines, elevator service and water on the same floor as the
Premises for lavatory and drinking purposes in such reasonable quantities as in
the judgment of Landlord is reasonably necessary for general office use.
Janitorial and maintenance services shall be furnished five (5) days per week,
excepting local and national holidays. Tenant shall comply with all rules and
regulations which Landlord may reasonably establish for the proper functioning
and protection of the common area air conditioning, heating, elevator,
electrical intrabuilding network cable and plumbing systems. Except as provided
in Section 11(g) below, Landlord shall not be liable for, and there shall be no
rent abatement as a result of, any stoppage, reduction or interruption of any
such services caused by governmental rules, regulations or ordinances, riot,
strike, labor disputes, breakdowns, accidents, necessary repairs or other cause.
Except as specifically provided in this Article 11, Tenant agrees to pay for all
utilities and other services utilized by Tenant and additional building services
furnished to Tenant not uniformly furnished to all tenants of the Project at the
rate generally charged by Landlord to tenants of the Project.
(b) Tenant will not, without the prior written consent of Landlord, use any
apparatus or device in the Premises which will in any way increase the amount of
electricity or water usually furnished or supplied for use of the Premises as
general office space; nor connect any apparatus, machine or device with water
pipes or electric current (except through existing electrical outlets in the
Premises), for the purpose of using electric current or water.
(c) If Tenant shall require electric current in excess of that which Landlord
is obligated to furnish under Article 11(a) above, Tenant shall first obtain the
written consent of Landlord to the use thereof and Landlord may cause an
electric current meter or submeter to be installed in the Premises to measure
the amount of such excess electric current consumed by Tenant in the Premises.
Landlord may refuse to provide such excess capacity if doing so requires changes
to the main feeders or capacity of the Project. The cost of any such meter and
of installation, maintenance and repair thereof shall be paid for by Tenant and
Tenant agrees to pay to Landlord, promptly upon demand therefor by Landlord, for
all such excess electric current consumed by any such use as shown by said meter
at the rates charged for such service by the city in which the Project is
located or the local public utility, as the case may be, furnishing the same,
plus any additional expense incurred by Landlord in keeping account of the
electric current so consumed.
(d) If any lights, machines or equipment (including but not limited to
computers) are used by Tenant in the Premises which materially affect the
temperature otherwise maintained by the air conditioning system, or generate
substantially more heat in the Premises than would be generated by the building
standard lights and usual office equipment, Landlord shall have the right to
install any machinery and equipment which Landlord reasonably deems necessary to
restore temperature balance, including but not limited to modifications to the
standard air conditioning equipment, and the cost thereof, including the cost of
installation and any additional cost of operation and maintenance occasioned
thereby, shall be paid by Tenant to Landlord upon demand by Landlord. Landlord
shall not be liable under any circumstances for loss of or injury to property or
injury to, or interference with, Tenant's business (including, but not limited
to, loss
-12-
<PAGE>
of profits), however occurring, through or in connection with or incidental to
failure to furnish any of the services or utilities specified in this Article
11.
(e) If Tenant requires heating, ventilation and/or air conditioning during
times other than the times provided in Article 11(a) above, Tenant shall give
Landlord such advance notice as Landlord shall reasonably require and shall pay
Landlord's standard charge for such after-hours use.
(f) Landlord may impose a reasonable charge for any utilities or services
(other than electric current and heating, ventilation and/or air conditioning
which shall be governed by Articles 11(c) and (e) above) utilized by Tenant in
excess of the amount or type that Landlord reasonably determines is typical for
general office use.
(g) An "ABATEMENT EVENT" shall be defined as an event that prevents Tenant
from using the Premises or any portion thereof, as a result of any failure to
provide services or access to the Premises, where (i) Tenant does not actually
use the Premises or such portion thereof, and (ii) such event is not caused by
the negligence or willful misconduct of Tenant, its agents, employees or
contractors. Tenant shall give Landlord notice ("ABATEMENT NOTICE") of any such
Abatement Event, and if such Abatement Event continues beyond the "Eligibility
Period" (as that term is defined below), then the Basic Rental and Tenant's
Proportionate Share of Direct Costs and Tenant's obligation to pay for parking
shall be abated entirely or reduced, as the case may be, after expiration of the
Eligibility Period for such time that Tenant continues to be so prevented from
using, and does not use, the Premises or a portion thereof, in the proportion
that the rentable area of the portion of the Premises that Tenant is prevented
from using, and does not use, bears to the total rentable area of the Premises;
provided, however, in the event that Tenant is prevented from using, and does
not use, a portion of the Premises for a period of time in excess of the
Eligibility Period and the remaining portion of the Premises is not sufficient
to allow Tenant to effectively conduct its business therein, and if Tenant does
not conduct its business from such remaining portion, then for such time after
expiration of the Eligibility Period during which Tenant is so prevented from
effectively conducting its business therein, the Basic Rental and Tenant's
Proportionate Share of Direct Costs and Tenant's obligation to pay for parking
for the entire Premises shall be abated entirely for such time as Tenant
continues to be so prevented from using, and does not use, the Premises. If,
however, Tenant reoccupies any portion of the Premises during such period, the
Basic Rental and Tenant's Proportionate Share of Direct Costs allocable to such
reoccupied portion, based on the proportion that the rentable area of such
reoccupied portion of the Premises bears to the total rentable area of the
Premises, shall be payable by Tenant from the date Tenant reoccupies such
portion of the Premises. The term "ELIGIBILITY PERIOD" shall mean a period of
five (5) consecutive business days after Landlord's receipt of any Abatement
Notice(s). Such right to abate Basic Rental and Tenant's Proportionate Share of
Direct Costs shall be Tenant's sole and exclusive remedy at law or in equity for
an Abatement Event.
ARTICLE 12
----------
RIGHTS OF LANDLORD
------------------
Landlord and its agents shall have the right to enter the Premises at all
reasonable times for the purpose of cleaning the Premises, examining or
inspecting the same, serving or posting and keeping posted thereon notices as
provided by law, or which Landlord deems necessary for the protection of
Landlord or the Property, showing the same to prospective tenants, lenders or
purchasers of the Project, in the case of an emergency, and for making such
alterations, repairs, improvements or additions to the Premises or to the
Project as Landlord may deem necessary or desirable. If Tenant shall not be
personally present to open and permit an entry into the Premises at any time
when such an entry by Landlord is necessary or permitted hereunder, Landlord may
enter by means of a master key or may enter forcibly, only in the case of an
emergency, without liability to Tenant and without affecting this Lease.
Notwithstanding anything to the contrary contained in this Lease, Tenant may
designate certain areas of the Premises as "secured areas" should Tenant require
such areas for the purpose of securing certain valuable property or confidential
information. In connection with the foregoing, Landlord shall not enter such
secured areas except during normal business hours and upon at least twenty-four
(24) hours notice to Tenant or in the event of an emergency. Landlord shall not
provide any cleaning services to any area designated by Tenant as a secured
area.
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<PAGE>
ARTICLE 13
----------
INDEMNITY; EXEMPTION OF LANDLORD FROM LIABILITY
-----------------------------------------------
(a) Indemnity. Tenant shall indemnify, defend and hold Landlord harmless from
any and all claims arising from Tenant's use of the Premises or the Project or
from the conduct of its business or from any activity, work or thing which may
be permitted or suffered by Tenant in or about the Premises or the Project and
shall further indemnify, defend and hold Landlord harmless from and against any
and all claims arising from any breach or default in the performance of any
obligation on Tenant's part to be performed under this Lease or arising from any
negligence or willful misconduct of Tenant or any of its agents, contractors,
employees or invitees, patrons, customers or members in or about the Project and
from any and all costs, attorneys' fees and costs, expenses and liabilities
incurred in the defense of any claim or any action or proceeding brought
thereon, including negotiations in connection therewith. However,
notwithstanding the foregoing, Tenant shall not be required to indemnify and/or
hold Landlord harmless from any loss, cost, liability, damage or expense,
including, but not limited to, penalties, fines, attorneys' fees or costs
(collectively, "CLAIMS"), to any person, property or entity to the extent
resulting from the negligence or willful misconduct of Landlord or its agents,
contractors, or employees (except for damage to the Improvements and Tenant's
personal property, fixtures, furniture and equipment in the Premises in which
case Tenant shall be responsible to the extent Tenant is required to obtain the
requisite insurance coverage pursuant to this Lease). Landlord hereby
indemnifies Tenant and holds Tenant harmless from any Claims to the extent
resulting from the negligence or willful misconduct of Landlord or its agents,
contractors or employees; provided, however, that because Landlord maintains
insurance on the Project and Tenant compensates Landlord for such insurance as
part of Tenant's Proportionate Share of Direct Costs and because of the
existence of waivers of subrogation set forth in Article 14 of this Lease,
Landlord hereby indemnifies and holds Tenant harmless from any Claims to any
property outside of the Premises to the extent such Claim is covered by such
insurance, even if resulting from the negligent acts, omissions, or willful
misconduct of Tenant or those of its agents, contractors, or employees.
Similarly, since Tenant must carry insurance pursuant to Article 14 to cover its
personal property within the Premises and the Improvements, Tenant hereby
indemnifies and holds Landlord harmless from any Claim to any property within
the Premises, to the extent such Claim is covered by such insurance, even if
resulting from the negligent acts, omissions or willful misconduct of Landlord
or those of its agents, contractors, or employees. Tenant hereby assumes all
risk of damage to property or injury to persons in or about the Premises from
any cause, and Tenant hereby waives all claims in respect thereof against
Landlord, excepting where the damage is caused solely by the gross negligence or
willful misconduct of Landlord.
(b) Exemption of Landlord from Liability. Landlord shall not be liable for
injury to Tenant's business, or loss of income therefrom, or, except in
connection with damage or injury resulting from the gross negligence or willful
misconduct of Landlord, or its authorized agents, for damage that may be
sustained by the person, goods, wares, merchandise or property of Tenant, its
employees, invitees, customers, agents, or contractors, or any other person in,
on or about the Premises directly or indirectly caused by or resulting from
fire, steam, electricity, gas, water, or rain which may leak or flow from or
into any part of the Premises, or from the breakage, leakage, obstruction or
other defects of the pipes, sprinklers, wires, appliances, plumbing, air
conditioning, light fixtures, or mechanical or electrical systems or from
intrabuilding network cable, whether such damage or injury results from
conditions arising upon the Premises or upon other portions of the Project or
from other sources or places and regardless of whether the cause of such damage
or injury or the means of repairing the same is inaccessible to Tenant. Landlord
shall not be liable to Tenant for any damages arising from any act or neglect of
any other tenant of the building.
ARTICLE 14
----------
INSURANCE
---------
(a) Tenant's Insurance. Tenant, shall at all times during the Term of this
Lease, and at its own cost and expense, procure and continue in force the
following insurance coverage: (i) Commercial General Liability Insurance with a
combined single limit for bodily injury and property damages of not less than
Two Million Dollars ($2,000,000) per occurrence and Three
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<PAGE>
Million Dollars ($3,000,000) in the annual aggregate, including products
liability coverage if applicable, covering the insuring provisions of this Lease
and to the extent the same are insurable claims the performance of Tenant of the
indemnity and exemption of Landlord from liability agreements set forth in
Article 13 hereof; (ii) a policy of standard fire, extended coverage and special
extended coverage insurance (all risks), including a vandalism and malicious
mischief endorsement, sprinkler leakage coverage and earthquake sprinkler
leakage where the limit of liability is in an amount equal to the full
replacement value new without deduction for depreciation of all (A) Tenant
Improvements, Alterations, fixtures and other improvements in the Premises and
(B) trade fixtures, furniture, equipment and other personal property installed
by or at the expense of Tenant; (iii) Worker's Compensation coverage as required
by law; and (iv) business interruption, loss of income and extra expense
insurance covering the risks described in Section 14(a)(ii) above. Tenant shall
carry and maintain during the entire Lease Term (including any option periods,
if applicable), at Tenant's sole cost and expense, increased amounts of the
insurance required to be carried by Tenant pursuant to this Article 14 and such
other reasonable types of insurance coverage and in such reasonable amounts
covering the Premises and Tenant's operations therein, as may be reasonably
required by Landlord.
(b) Form of Policies. The aforementioned minimum limits of policies and
Tenant's procurement and maintenance thereof shall in no event limit the
liability of Tenant hereunder. The Commercial General Liability Insurance policy
shall name Landlord, Landlord's property manager, Landlord's lender(s) and such
other persons or firms as Landlord specifies from time to time, as additional
insureds with an appropriate endorsement to the policy(s). All such insurance
policies carried by Tenant shall be with companies having a rating of not less
than A-VIII in Best's Insurance Guide. Tenant shall furnish to Landlord, from
the insurance companies, or cause the insurance companies to furnish,
certificates of coverage. No such policy shall be cancelable or subject to
reduction of coverage below the limits described in Section 14(a) above or other
modification or cancellation except after thirty (30) days prior written notice
to Landlord by the insurer. All such policies shall be endorsed to agree that
Tenant's policy is primary as to claims within the Premises and that any
insurance carried by Landlord is excess and not contributing with any Tenant
insurance requirement hereunder. Tenant shall, at least twenty (20) days prior
to the expiration of such policies, furnish Landlord with renewal certificates
or binders. Tenant agrees that if Tenant does not take out and maintain such
insurance or furnish Landlord with renewal certificates or binders, Landlord may
(but shall not be required to) upon prior notice to Tenant and the expiration of
a five (5) day cure period procure said insurance on Tenant's behalf and charge
Tenant the cost thereof, which amount shall be payable by Tenant upon demand
with interest (at the rate set forth in Section 20(e) below) from the date such
sums are extended. Tenant shall have the right to provide such insurance
coverage pursuant to blanket policies obtained by Tenant, provided such blanket
policies expressly afford coverage to the Premises and to Tenant as required by
this Lease.
(c) Landlord's Insurance. Landlord shall, as a cost to be included in
Operating Costs, procure and maintain at all times during the Term of this
Lease, a policy or policies of insurance covering loss or damage to the Project
in the amount of the full replacement costs without deduction for depreciation
thereof (exclusive of Tenant's trade fixtures, inventory, personal property and
equipment), providing protection against all perils included within the
classification of fire and extended coverage, vandalism coverage and malicious
mischief, sprinkler leakage, water damage, and special extended coverage on
building. Additionally, Landlord may (but shall not be required to) carry: (i)
Bodily Injury and Property Damage Liability Insurance and/or Excess Liability
Coverage Insurance; and (ii) Earthquake and/or Flood Damage Insurance; and (iii)
Rental Income Insurance at its election or if required by its lender from time
to time during the Term hereof, in such amounts and with such limits as Landlord
or its lender may deem appropriate. The costs of such insurance shall be
included in Operating Costs.
(d) Waiver of Subrogation. Landlord and Tenant each agree to have their
respective insurers issuing the insurance described in Sections 14(a)(ii),
14(a)(iv) and the first sentence of Section 14(c) waive any rights of
subrogation that such companies may have against the other party. Tenant hereby
waives any right that Tenant may have against Landlord and Landlord hereby
waives any right that Landlord may have against Tenant as a result of any loss
or damage to the extent such loss or damage is insurable under such policies.
(e) Compliance with Law. Tenant agrees that it will not, at any time, during
the Term of this Lease, carry any stock of goods or do anything in or about the
Premises that will in
-15-
<PAGE>
any way tend to increase the insurance rates upon the Project. Tenant agrees to
pay Landlord forthwith upon demand the amount of any increase in premiums for
insurance against loss by fire that may be charged during the Term of this Lease
on the amount of insurance to be carried by Landlord on the Project resulting
from the foregoing, or from Tenant doing any act in or about said Premises that
does so increase the insurance rates, whether or not Landlord shall have
consented to such act on the part of Tenant. If Tenant installs upon the
Premises any electrical equipment which constitutes an overload of electrical
lines of the Premises, Tenant shall at its own cost and expense in accordance
with all other Lease provisions, and subject to the provisions of Article 9, 10
and 11, hereof, make whatever changes are necessary to comply with requirements
of the insurance underwriters and any governmental authority having jurisdiction
thereover, but nothing herein contained shall be deemed to constitute Landlord's
consent to such overloading. Tenant shall, at its own expense, comply with all
requirements of the insurance authority having jurisdiction over the Project
necessary for the maintenance of reasonable fire and extended coverage insurance
for the Premises, including without limitation thereto, the installation of fire
extinguishers or an automatic dry chemical extinguishing system.
ARTICLE 15
----------
ASSIGNMENT AND SUBLETTING
-------------------------
Tenant shall have no power to, either voluntarily, involuntarily, by
operation of law or otherwise, sell, assign, transfer or hypothecate this Lease,
or sublet the Premises or any part thereof, or permit the Premises or any part
thereof to be used or occupied by anyone other than Tenant or Tenant's employees
without the prior written consent of Landlord which shall not be unreasonably
withheld. Tenant may transfer its interest pursuant to this Lease only upon the
following express conditions, which conditions are agreed by Landlord and Tenant
to be reasonable:
(a) That the proposed transferee shall be subject to the prior written
consent of Landlord, which consent will not be unreasonably withheld but,
without limiting the generality of the foregoing, it shall be reasonable for
Landlord to deny such consent if:
(i) The use to be made of the Premises by the proposed transferee is (a)
not generally consistent with the character and nature of all other tenancies in
the Project, or (b) a use which conflicts with any so-called "exclusive" then in
favor of another tenant of the Project or any other buildings which are in the
same complex as the Project, or (c) a use which would be prohibited by any other
portion of this Lease (including but not limited to any Rules and Regulations
then in effect);
(ii) The financial responsibility of the proposed transferee is not
reasonably satisfactory to Landlord;
(iii) The proposed transferee is either a governmental agency or
instrumentality thereof; or
(iv) Either the proposed transferee or any person or entity which
directly or indirectly controls, is controlled by or is under common control
with the proposed transferee is negotiating with Landlord to lease space in the
Project.
(b) Whether or not Landlord consents to any such transfer, Tenant shall pay
to Landlord Landlord's then standard processing fee and reasonable attorneys'
fees and costs incurred in connection with the proposed transfer up to the
aggregate sum of $1,500.00;
(c) That the proposed transferee shall execute an agreement pursuant to which
it shall agree to perform faithfully and be bound by all of the terms,
covenants, conditions, provisions and agreements of this Lease applicable to
that portion of the Premises so transferred; and
(d) That an executed duplicate original of said assignment and assumption
agreement or other transfer on a form reasonably approved by Landlord, shall be
delivered to Landlord within five (5) days after the execution thereof, and that
such transfer shall not be binding upon Landlord until the delivery thereof to
Landlord and the execution and delivery of Landlord's consent thereto. It shall
be a condition to Landlord's consent to any subleasing, assignment or other
transfer of part or all of Tenant's interest in the Premises (hereinafter
referred to as a
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<PAGE>
"TRANSFER") that (i) upon Landlord's consent to any Transfer, Tenant shall pay
and continue to pay fifty percent (50%) of any "Transfer Premium" (defined
below), received by Tenant from the transferee; (ii) any sublessee of part or
all of Tenant's interest in the Premises shall agree that in the event Landlord
gives such sublessee notice that Tenant is in default under this Lease, such
sublessee shall thereafter make all sublease or other payments directly to
Landlord, which will be received by Landlord without any liability whether to
honor the sublease or otherwise (except to credit such payments against sums due
under this Lease), and any sublessee shall agree to attorn to Landlord or its
successors and assigns at their request should this Lease be terminated for any
reason, except that in no event shall Landlord or its successors or assigns be
obligated to accept such attornment; (iii) any such Transfer and consent shall
be effected on forms supplied by Landlord and/or its legal counsel; (iv)
Landlord may require that Tenant not then be in default hereunder in any
respect; and (v) Tenant or the proposed subtenant or assignee (collectively,
"TRANSFEREE") shall agree to pay Landlord, upon demand, as additional rent, a
sum equal to the additional costs, if any, incurred by Landlord for maintenance
and repair as a result of any change in the nature of occupancy caused by such
subletting or assignment. "TRANSFER PREMIUM" shall mean all rent, additional
rent or other consideration payable by a Transferee in connection with a
Transfer in excess of the rent and Additional Rent payable by Tenant under this
Lease during the term of the Transfer and if such Transfer is less than all of
the Premises, the Transfer Premium shall be calculated on a rentable square foot
basis. In any event, the Transfer Premium shall be calculated after deducting
the reasonable expenses incurred by Tenant for (1) any changes, alterations, and
improvements to the Premises paid for by Tenant in connection with the Transfer,
(2) any other out-of-pocket monetary concessions provided by Tenant to the
Transferee, and (3) any brokerage commissions paid for by Tenant in connection
with the Transfer. "Transfer Premium" shall also include, but not be limited to,
key money, bonus money or other cash consideration paid by a transferee to
Tenant in connection with such Transfer, and any payment in excess of fair
market value for services rendered by Tenant to the Transferee and any payment
in excess of fair market value for assets, fixtures, inventory, equipment, or
furniture transferred by Tenant to the Transferee in connection with such
Transfer. Any sale, assignment, hypothecation, transfer or subletting of this
Lease which is not in compliance with the provisions of this Article 15 shall be
void and shall, at the option of Landlord, terminate this Lease. In no event
shall the consent by Landlord to an assignment or subletting be construed as
relieving Tenant, any assignee, or sublessee from obtaining the express written
consent of Landlord to any further assignment or subletting, or as releasing
Tenant from any liability or obligation hereunder whether or not then accrued
and Tenant shall continue to be fully liable therefor. No collection or
acceptance of rent by Landlord from any person other than Tenant shall be deemed
a waiver of any provision of this Article 15 or the acceptance of any assignee
or subtenant hereunder, or a release of Tenant (or of any successor of Tenant or
any subtenant). Notwithstanding anything to the contrary in this Lease, if
Tenant or any proposed Transferee claims that Landlord has unreasonably withheld
or delayed its consent under this Article 15 or otherwise has breached or acted
unreasonably under this Article 15, their sole remedies shall be a declaratory
judgment, an injunction for the relief sought and/or monetary damages, and
Tenant hereby waives any right at law or equity to terminate this Lease.
Notwithstanding anything to the contrary contained in this Article 15,
Landlord shall have the option, by giving written notice to Tenant within thirty
(30) days after Landlord's receipt of a request for consent to a proposed
Transfer, to terminate this Lease as to the portion of the Premises that is the
subject of the Transfer. If this Lease is so terminated with respect to less
than the entire Premises, the Basic Rental and Tenant's Proportionate Share
shall be prorated based on the number of rentable square feet retained by Tenant
as compared to the total number of rentable square feet contained in the
original Premises, and this Lease as so amended shall continue thereafter in
full force and effect, and upon the request of either party, the parties shall
execute written confirmation of the same.
ARTICLE 16
----------
DAMAGE OR DESTRUCTION
---------------------
Within sixty (60) days after the date the Landlord learns of the necessity
for repairs as a result of damage, Landlord shall notify Tenant ("DAMAGE REPAIR
ESTIMATE") of Landlord's estimated assessment of the period in which the repairs
will be completed. If the Project is damaged by fire or other insured casualty
and the insurance proceeds have been made available therefor by the holder or
holders of any mortgages or deeds of trust covering the Premises or the
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<PAGE>
Project, the damage shall be repaired by Landlord to the extent such insurance
proceeds are available therefor and provided the Damage Repair Estimate
indicates that repairs can be completed within one hundred eighty (180) days
after the necessity for repairs as a result of such damage becomes known to
Landlord without the payment of overtime or other premiums, and until such
repairs are completed rent shall be abated in proportion to the part of the
Premises which is unusable by Tenant in the conduct of its business (but there
shall be no abatement of rent by reason of any portion of the Premises being
unusable for a period equal to one (1) day or less). However, if the damage is
due to the fault or neglect of Tenant, its employees, agents, contractors,
guests, invitees and the like, there shall be no abatement of rent, unless and
to the extent Landlord receives rental income insurance proceeds. Upon the
occurrence of any damage to the Premises, Tenant shall assign to Landlord (or to
any party designated by Landlord) all insurance proceeds payable to Tenant under
Section 14(a)(ii)(A) above; provided, however, that if the cost of repair of
improvements within the Premises by Landlord exceeds the amount of insurance
proceeds received by Landlord from Tenant's insurance carrier, as so assigned by
Tenant, such excess costs shall be paid by Tenant to Landlord prior to
Landlord's repair of such damage. If, however, the Damage Repair Estimate
indicates that repairs cannot be completed within one hundred eighty (180) days
after the necessity for repairs as a result of such damage becomes known to
Landlord without the payment of overtime or other premiums, Landlord may, at its
option, either (i) make them in a reasonable time and in such event this Lease
shall continue in effect and the rent shall be abated, if at all, in the manner
provided in this Article 16, or (ii) elect not to effect such repairs and
instead terminate this Lease, by notifying Tenant in writing of such termination
within sixty (60) days after Landlord learns of the necessity for repairs as a
result of damage, such notice to include a termination date giving Tenant sixty
(60) days to vacate the Premises. In addition, Landlord may elect to terminate
this Lease if the Project shall be damaged by fire or other casualty or cause,
whether or not the Premises are affected, and the damage is not fully covered,
except for deductible amounts, by Landlord's insurance policies. However, if
Landlord does not elect to terminate this Lease pursuant to Landlord's
termination right as provided above, and the Damage Repair Estimate indicates
that repairs cannot be completed within one hundred eighty (180) days after
being commenced, Tenant may elect, not later than thirty (30) days after
Tenant's receipt of the Damage Repair Estimate to terminate this Lease by
written notice to Landlord effective as of the date specified in Tenant's
notice. Finally, if the Premises or the Project is damaged to any substantial
extent during the last twelve (12) months of the Term, then notwithstanding
anything contained in this Article 16 to the contrary, Landlord shall have the
option to terminate this Lease by giving written notice to Tenant of the
exercise of such option within sixty (60) days after Landlord learns of the
necessity for repairs as the result of such damage. In the event that the
Premises or the Project is destroyed or damaged to any substantial extent during
the last twelve (12) months of the Lease Term and if such damage shall take
longer than sixty (60) days to repair and if such damage is not the result of
the negligence or willful misconduct of Tenant or Tenant's employees, licensees,
invitees, or agents, then notwithstanding anything contained in this Article 16
to the contrary, Tenant shall have the option to terminate this Lease by written
notice to Landlord of the exercise of such option within sixty (60) days after
Tenant learns of the necessity for repairs as a result of such damage. A total
destruction of the Project shall automatically terminate this Lease. Except as
provided in this Article 16, there shall be no abatement of rent and no
liability of Landlord by reason of any injury to or interference with Tenant's
business or property arising from such damage or destruction or the making of
any repairs, alterations or improvements in or to any portion of the Project or
the Premises or in or to fixtures, appurtenances and equipment therein. Tenant
understands that Landlord will not carry insurance of any kind on Tenant's
furniture, furnishings, trade fixtures or equipment, and that Landlord shall not
be obligated to repair any damage thereto or replace the same. Except for
proceeds relating solely to Tenant's furniture, furnishings, trade fixtures and
equipment, Tenant acknowledges that Tenant shall have no right to any proceeds
of insurance relating to property damage. With respect to any damage which
Landlord is obligated to repair or elects to repair, Tenant, as a material
inducement to Landlord entering into this Lease, irrevocably waives and releases
its rights under the provisions of Sections 1932 and 1933 of the California
Civil Code.
ARTICLE 17
----------
SUBORDINATION
-------------
This Lease is subject and subordinate to all ground or underlying leases,
mortgages and deeds of trust which affect the property or the Project, including
all renewals, modifications,
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<PAGE>
consolidations, replacements and extensions thereof; provided, however, if the
lessor under any such lease or the holder or holders of any such mortgage or
deed of trust shall advise Landlord that they desire or require this Lease to be
prior and superior thereto, upon written request of Landlord to Tenant, Tenant
agrees to promptly execute, acknowledge and deliver any and all documents or
instruments which Landlord or such lessor, holder or holders deem necessary or
desirable for purposes thereof. Landlord shall have the right to cause this
Lease to be and become and remain subject and subordinate to any and all ground
or underlying leases, mortgages or deeds of trust which may hereafter be
executed covering the Premises, the Project or the property or any renewals,
modifications, consolidations, replacements or extensions thereof, for the full
amount of all advances made or to be made thereunder and without regard to the
time or character of such advances, together with interest thereon and subject
to all the terms and provisions thereof; provided, however, that Landlord
obtains from the lender or other party in question a written undertaking in
favor of Tenant to the effect that such lender or other party will not disturb
Tenant's right of possession under this Lease if Tenant is not then or
thereafter in breach of any covenant or provision of this Lease. Tenant agrees,
within ten (10) days after Landlord's written request therefor, to execute,
acknowledge and deliver upon request any and all documents or instruments
requested by Landlord or necessary or proper to assure the subordination of this
Lease to any such mortgages, deed of trust, or leasehold estates. Tenant agrees
that in the event any proceedings are brought for the foreclosure of any
mortgage or deed of trust or any deed in lieu thereof, to attorn to the
purchaser or any successors thereto upon any such foreclosure sale or deed in
lieu thereof as so requested to do so by such purchaser and to recognize such
purchaser as the lessor under this Lease; Tenant shall, within ten (10) days
after request execute such further instruments or assurances as such purchaser
may reasonably deem necessary to evidence or confirm such attornment. Tenant
agrees to provide copies of any notices of Landlord's default under this Lease
to any mortgagee or deed of trust beneficiary whose address has been provided to
Tenant and Tenant shall provide such mortgagee or deed of trust beneficiary a
commercially reasonable time after receipt of such notice within which to cure
any such default. Tenant waives the provisions of any current or future statute,
rule or law which may give or purport to give Tenant any right or election to
terminate or otherwise adversely affect this Lease and the obligations of the
Tenant hereunder in the event of any foreclosure proceeding or sale.
ARTICLE 18
----------
EMINENT DOMAIN
--------------
If the whole of the Premises or the Project or so much thereof as to render
the balance unusable by Tenant shall be taken under power of eminent domain, or
is sold, transferred or conveyed in lieu thereof, this Lease shall automatically
terminate as of the date of such condemnation, or as of the date possession is
taken by the condemning authority, at Landlord's option. No award for any
partial or entire taking shall be apportioned, and Tenant hereby assigns to
Landlord any award which may be made in such taking or condemnation, together
with any and all rights of Tenant now or hereafter arising in or to the same or
any part thereof; provided, however, that nothing contained herein shall be
deemed to give Landlord any interest in or to require Tenant to assign to
Landlord any award made to Tenant for relocation expenses or for the taking of
personal property and trade fixtures belonging to Tenant and removable by Tenant
at the expiration of the Term hereof as provided hereunder or for the
interruption of, or damage to, Tenant's business. In the event of a partial
taking described in this Article 18, or a sale, transfer or conveyance in lieu
thereof, which does not result in a termination of this Lease, the rent shall be
apportioned according to the ratio that the part of the Premises remaining
useable by Tenant bears to the total area of the Premises. Tenant hereby waives
any and all rights it might otherwise have pursuant to Section 1265.130 of the
California Code of Civil Procedure.
ARTICLE 19
----------
DEFAULT
-------
(a) Tenant's Default. Each of the following acts or omissions of Tenant or of
any guarantor of Tenant's performance hereunder, or occurrences, shall
constitute an "EVENT OF DEFAULT":
(i) Failure or refusal to pay Basic Rental, Additional Rent or any other
amount to be paid by Tenant to Landlord hereunder within five (5) calendar days
after notice that
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the same is due or payable hereunder; said five (5) day period shall be in lieu
of, and not in addition to, the notice requirements of Section 1161 of the
California Code of Civil Procedure or any similar or successor law;
(ii) Except as set forth in items (i) above and (iii) below, failure to
perform or observe any other covenant or condition of this Lease to be performed
or observed within thirty (30) days following written notice to Tenant of such
failure; however, if the nature of such default is such that the same cannot be
reasonably cured within a thirty (30) day period, Tenant shall not be deemed to
be in default if Tenant diligently commences such cure within such period and
thereafter diligently proceeds to rectify and cure said default. Such thirty
(30) day notice shall be in lieu of, and not in addition to, any required under
Section 1161 of the California Code of Civil Procedure or any similar or
successor law; or
(iii) Tenant's failure to observe or perform according to the provisions
of Articles 7, 17 or 25 within five (5) business days after notice from
Landlord.
(b) Landlord's Default. Notwithstanding anything to the contrary set forth in
this Lease, Landlord shall be in default in the performance of any obligation
required to be performed by Landlord pursuant to this Lease if Landlord fails to
perform such obligation within thirty (30) days after the receipt of notice from
Tenant specifying in detail Landlord's failure to perform; provided, however, if
the nature of Landlord's obligation is such that more than thirty (30) days are
required for its performance, then Landlord shall not be in default under this
Lease if it shall commence such performance within such thirty (30) day period
and thereafter diligently pursue the same to completion. Upon any such default
by Landlord under this Lease, Tenant may, except as otherwise specifically
provided in this Lease to the contrary, exercise any of its rights provided at
law or in equity.
ARTICLE 20
----------
REMEDIES
--------
(a) Upon the occurrence of an Event of Default under this Lease as provided
in Article 19 hereof, Landlord may exercise all of its remedies as may be
permitted by law, including but not limited to the remedy provided by Section
1951.4 of the California Civil Code, and including without limitation,
terminating this Lease, reentering the Premises and removing all persons and
property therefrom, which property may be stored by Landlord at a warehouse or
elsewhere at the risk, expense and for the account of Tenant. If Landlord elects
to terminate this Lease, Landlord shall be entitled to recover from Tenant the
aggregate of all amounts permitted by law, including but not limited to (i) the
worth at the time of award of the amount of any unpaid rent which had been
earned at the time of such termination; plus (ii) the worth at the time of award
of the amount by which the unpaid rent which would have been earned after
termination until the time of award exceeds the amount of such rental loss that
Tenant proves could have been reasonably avoided; plus (iii) the worth at the
time of award of the amount by which the unpaid rent for the balance of the
Lease Term after the time of award exceeds the amount of such rental loss that
Tenant proves could have been reasonably avoided; plus (iv) any other amount
necessary to compensate Landlord for all the detriment proximately caused by
Tenant's failure to perform its obligations under this Lease or which in the
ordinary course of things would be likely to result therefrom; and (v) at
Landlord's election, such other amounts in addition to or in lieu of the
foregoing as may be permitted from time to time by applicable law. The term
"rent" as used in this Article 20(a) shall be deemed to be and to mean all sums
of every nature required to be paid by Tenant pursuant to the terms of this
Lease, whether to Landlord or to others. As used in items (i) and (ii), above,
the "worth at the time of award" shall be computed by allowing interest at the
rate set forth in item (e), below, but in no case greater than the maximum
amount of such interest permitted by law. As used in item (iii), above, the
"worth at the time of award" shall be computed by discounting such amount at the
discount rate of the Federal Reserve Bank of San Francisco at the time of award
plus one percent (1%).
(b) Nothing in this Article 20 shall be deemed to affect Landlord's right to
indemnification for liability or liabilities arising prior to the termination of
this Lease for personal injuries or property damage under the indemnification
clause or clauses contained in this Lease.
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(c) Notwithstanding anything to the contrary set forth herein, Landlord's re-
entry to perform acts of maintenance or preservation of or in connection with
efforts to relet the Premises or any portion thereof, or the appointment of a
receiver upon Landlord's initiative to protect Landlord's interest under this
Lease shall not terminate Tenant's right to possession of the Premises or any
portion thereof and, until Landlord does elect to terminate this Lease, this
Lease shall continue in full force and effect and Landlord may enforce all of
Landlord's rights and remedies hereunder including, without limitation, the
remedy described in California Civil Code Section 1951.4 (lessor may continue
lease in effect after lessee's breach and abandonment and recover rent as it
becomes due, if lessee has the right to sublet or assign, subject only to
reasonable limitations). Accordingly, if Landlord does not elect to terminate
this Lease on account of any default by Tenant, Landlord may, from time to time,
without terminating this Lease, enforce all of its rights and remedies under
this Lease, including the right to recover all rent as it becomes due.
(d) All rights, powers and remedies of Landlord hereunder and under any other
agreement now or hereafter in force between Landlord and Tenant shall be
cumulative and not alternative and shall be in addition to all rights, powers
and remedies given to Landlord by law, and the exercise of one or more rights or
remedies shall not impair Landlord's right to exercise any other right or
remedy.
(e) Any amount due from Tenant to Landlord hereunder which is not paid when
due shall bear interest at the lower of twelve percent (12%) per annum or the
maximum lawful rate of interest from the due date until paid, unless otherwise
specifically provided herein, but the payment of such interest shall not excuse
or cure any default by Tenant under this Lease. In addition to such interest:
(i) if Basic Rental is not paid within ten (10) days after the same is due, a
late charge equal to five percent (5%) of the amount overdue shall be assessed
and shall accrue for each calendar month or part thereof until such rental,
including the late charge, is paid in full, which late charge Tenant hereby
agrees is a reasonable estimate of the damages Landlord shall suffer as a result
of Tenant's late payment and (ii) an additional charge of $25 shall be assessed
for any check given to Landlord by or on behalf of Tenant which is not honored
by the drawee thereof; which damages include Landlord's additional
administrative and other costs associated with such late payment and unsatisfied
checks and the parties agree that it would be impracticable or extremely
difficult to fix Landlord's actual damage in such event. Such charges for
interest and late payments and unsatisfied checks are separate and cumulative
and are in addition to and shall not diminish or represent a substitute for any
or all of Landlord's rights or remedies under any other provision of this Lease.
ARTICLE 21
----------
TRANSFER OF LANDLORD'S INTEREST
-------------------------------
In the event of any transfer or termination of Landlord's interest in the
Premises or the Project by sale, assignment, transfer, foreclosure, deed-in-lieu
of foreclosure or otherwise whether voluntary or involuntary, Landlord shall be
automatically relieved of any and all obligations and liabilities on the part of
Landlord from and after the date of such transfer or termination, including
furthermore without limitation, the obligation of Landlord under Article 4 and
California Civil Code 1950.7 above to return the security deposit, provided said
security deposit is transferred to said transferee and said transferee assumes
the obligations of Landlord under this Lease. Tenant agrees to attorn to the
transferee upon any such transfer and to recognize such transferee as the lessor
under this Lease and Tenant shall, within five (5) days after request, execute
such further instruments or assurances as such transferee may reasonably deem
necessary to evidence or confirm such attornment.
ARTICLE 22
----------
BROKER
------
Landlord and Tenant hereby warrant to each other that they have had no
dealings with any real estate broker or agent in connection with the negotiation
of this Lease, excepting only the real estate brokers or agents specified in
Article 1.H. of the Basic Lease Provisions (the "BROKER"), and that they know of
no other real estate broker or agent who is entitled to a commission in
connection with this Lease. Pursuant to Landlord's separate agreement with the
Broker, Landlord shall pay the brokerage commissions owing to the Broker in
connection with
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the transaction contemplated by this Lease. Each party agrees to indemnify and
defend the other party against and hold the other party harmless from any and
all claims, demands, losses, liabilities, lawsuits, judgments, and costs and
expenses (including without limitation reasonable attorneys' fees) with respect
to any leasing commission or equivalent compensation alleged to be owing on
account of the indemnifying party's dealings with any real estate broker or
agent other than the Broker. The terms of this Article 22 shall survive the
expiration of earlier termination of the Lease Term.
ARTICLE 23
----------
PARKING
-------
Tenant shall be entitled to rent from Landlord, commencing on the date of
expiration of the Abatement Period, the number of unreserved parking passes set
forth in Section 1(I) of the Basic Lease Provisions, which parking passes shall
pertain to the parking facility located adjacent to the Project. Tenant shall
pay to Landlord for automobile parking passes the prevailing rate charged from
time to time at the location of such parking passes which rates are currently
$65.00 per parking pass per month (plus any applicable parking tax). In
addition, Tenant shall be responsible for the full amount of any taxes imposed
by any governmental authority in connection with the renting of such parking
passes by Tenant or the use of the parking facility by Tenant. Tenant's
continued right to use the parking passes is conditioned upon Tenant abiding by
all rules and regulations which are prescribed from time to time for the orderly
operation and use of the parking facility where the parking passes are located,
including any sticker or other identification system established by Landlord,
Tenant's cooperation in seeing that Tenant's employees and visitors also comply
with such rules and regulations, and Tenant not being in default under this
Lease. Landlord specifically reserves the right to change the size,
configuration, design, layout and all other aspects of the Project parking
facility at any time and Tenant acknowledges and agrees that Landlord may,
without incurring any liability to Tenant and without any abatement of rent
under this Lease, from time to time, close-off or restrict access to the Project
parking facility for purposes of permitting or facilitating any such
construction, alteration or improvements. Landlord may relocate any reserved
parking spaces rented by Tenant to another location in the Parking project
facility. Landlord may delegate its responsibilities hereunder to a parking
operator or a lessee of the parking facility in which case such parking operator
or lessee shall have all the rights of control attributed hereby to the
Landlord. The parking passes rented by Tenant pursuant to this Article 23 are
provided to Tenant solely for use by Tenant's own personnel and such passes may
not be transferred, assigned, subleased or otherwise alienated by Tenant without
Landlord's prior approval. Tenant may validate visitor parking by such method
or methods as the Landlord may establish, at the validation rate from time to
time generally applicable to visitor parking.
ARTICLE 24
----------
WAIVER
------
No waiver by Landlord or Tenant of any provision of this Lease shall be
deemed to be a waiver of any other provision hereof or of any subsequent breach
of the same or any other provision. No provision of this Lease may be waived by
Landlord or Tenant, except by an instrument in writing executed by Landlord and
Tenant. Landlord's consent to or approval of any act by Tenant requiring
Landlord's consent or approval shall not be deemed to render unnecessary the
obtaining of Landlord's consent to or approval of any subsequent act of Tenant,
whether or not similar to the act so consented to or approved. No act or thing
done by Landlord or Landlord's agents during the Term of this Lease shall be
deemed an acceptance of a surrender of the Premises, and no agreement to accept
such surrender shall be valid unless in writing and signed by Landlord. The
subsequent acceptance of rent hereunder by Landlord shall not be deemed to be a
waiver of any preceding breach by Tenant of any term, covenant or condition of
this Lease, other than the failure of Tenant to pay the particular rent so
accepted, regardless of Landlord's knowledge of such preceding breach at the
time of acceptance of such rent. Any payment by Tenant or receipt by Landlord
of an amount less than the total amount then due hereunder shall be deemed to be
in partial payment only thereof and not a waiver of the balance due or an accord
and satisfaction, notwithstanding any statement or endorsement to the contrary
on any check or any other instrument delivered concurrently therewith or in
reference thereto. Accordingly, Landlord may accept any such amount and
negotiate any such check without
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prejudice to Landlord's right to recover all balances due and owing and to
pursue its other rights against Tenant under this Lease, regardless of whether
Landlord makes any notation on such instrument of payment or otherwise notifies
Tenant that such acceptance or negotiation is without prejudice to Landlord's
rights.
ARTICLE 25
----------
ESTOPPEL CERTIFICATE
--------------------
Tenant shall, at any time and from time to time, upon not less than ten
(10) business days' prior written notice from Landlord, execute, acknowledge and
deliver to Landlord a statement in writing certifying the following information,
(but not limited to the following information in the event further information
is requested by Landlord): (i) that this Lease is unmodified and in full force
and effect (or, if modified, stating the nature of such modification and
certifying that this Lease, as modified, is in full force and effect); (ii) the
dates to which the rental and other charges are paid in advance, if any; (iii)
the amount of Tenant's security deposit, if any; and (iv) acknowledging that
there are not, to Tenant's knowledge, any uncured defaults on the part of
Landlord hereunder, and no events or conditions then in existence which, with
the passage of time or notice or both, would constitute a default on the part of
Landlord hereunder, or specifying such defaults, events or conditions, if any
are claimed. It is expressly understood and agreed that any such statement may
be relied upon by any prospective purchaser or encumbrancer of all or any
portion of the Real Property. Tenant's failure to deliver such statement within
such time shall constitute an admission by Tenant that all statements contained
therein are true and correct. Tenant agrees to execute all documents required
in accordance with this Article 25 within ten (10) business days after delivery
of said documents. Tenant hereby irrevocably appoints Landlord as Tenant's
attorney-in-fact and in Tenant's name, place and stead to execute any and all
documents described in this Article 25 if Tenant fails to do so within the
specified time period.
ARTICLE 26
----------
LIABILITY OF LANDLORD
---------------------
Notwithstanding anything in this Lease to the contrary, any remedy of
Tenant for the collection of a judgment (or other judicial process) requiring
the payment of money by Landlord in the event of any default by Landlord
hereunder or any claim, cause of action or obligation, contractual, statutory or
otherwise by Tenant against Landlord concerning, arising out of or relating to
any matter relating to this Lease and all of the covenants and conditions or any
obligations, contractual, statutory, or otherwise set forth herein, shall be
limited solely and exclusively to an amount which is equal to the sum of (a) the
proceeds of the Letter of Credit (or the actual Letter of Credit to the extent
the Letter of Credit has not been drawn upon) plus (b) the lesser of (i) the
interest of Landlord in and to the Project, and (ii) the interest Landlord would
have in the Project if the Project were encumbered by third party debt in an
amount equal to eighty percent (80%) of the then current value of the Project
(as such value is reasonably determined by Landlord). No other property or
assets of Landlord, or any member, officer, director, shareholder, partner,
trustee, agent, servant or employee of Landlord (the "REPRESENTATIVE") shall be
subject to levy, execution or other enforcement procedure for the satisfaction
of Tenant's remedies under or with respect to this Lease, Landlord's obligations
to Tenant, whether contractual, statutory or otherwise, the relationship of
Landlord and Tenant hereunder, or Tenant's use or occupancy of the Premises.
Tenant further understands that any liability, duty or obligation of Landlord to
Tenant, shall automatically cease and terminate as of the date that Landlord or
any of Landlord's Representatives no longer have any right, title or interest in
or to the Project provided that any successor or transferee of Landlord shall
assume the obligations of Landlord under this Lease. Except as specifically
provided in this Lease, Landlord shall not be liable under any circumstances for
injury or damage to, or interference with, Tenant's business, including but not
limited to, loss of profits, loss of rents or other revenues, loss of business
opportunity, loss of goodwill or loss of use, in each case, however occurring.
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ARTICLE 27
----------
INABILITY TO PERFORM
--------------------
This Lease and the obligations of both parties hereunder shall not be
affected or impaired because such party is unable to fulfill any of its
obligations hereunder or is delayed in doing so, if such inability or delay is
caused by reason of any prevention, delay, stoppage due to strikes, lockouts,
acts of God, or any other cause previously, or at such time, beyond the
reasonable control or anticipation of such party (collectively, a "FORCE
MAJEURE") and both parties' obligations under this Lease shall be forgiven and
suspended by any such Force Majeure; provided, however, that this Article 27 is
not intended to, and shall not, extend the time period for the payment of any
monetary amounts due (including, without limitation, rent payments from Tenant)
from either party to the other under this Lease nor relieve either party from
their monetary obligations to the other under this Lease.
ARTICLE 28
----------
HAZARDOUS WASTE
---------------
(a) Tenant shall not cause or permit any Hazardous Material (as defined in
Article 28(c) below) to be brought, kept or used in or about the Project by
Tenant, its agents, employees, contractors, or invitees. Tenant indemnifies
Landlord from and against any breach by Tenant of the obligations stated in the
preceding sentence, and agrees to defend and hold Landlord harmless from and
against any and all claims, judgments, damages, penalties, fines, costs,
liabilities, or losses (including, without limitation, diminution in value of
the Project, damages for the loss or restriction or use of rentable or usable
space or of any amenity of the Project, damages arising from any adverse impact
or marketing of space in the Project, and sums paid in settlement of claims,
attorneys' fees and costs, consultant fees, and expert fees) which arise during
or after the Term of this Lease as a result of such breach. This indemnification
of Landlord by Tenant includes, without limitation, costs incurred in connection
with any investigation of site conditions or any cleanup, remedial, removal, or
restoration work required by any federal, state, or local governmental agency or
political subdivision because of Hazardous Material present in the soil or
ground water on or under the Project. Without limiting the foregoing, if the
presence of any Hazardous Material on the Project caused or permitted by Tenant
results in any contamination of the Project and subject to the provisions of
Articles 9, 10 and 11, hereof, Tenant shall promptly take all actions at its
sole expense as are necessary to return the Project to the condition existing
prior to the introduction of any such Hazardous Material and the contractors to
be used by Tenant for such work must be approved by Landlord, which approval
shall not be unreasonably withheld so long as such actions would not potentially
have any material adverse long-term or short-term effect on the Project and so
long as such actions do not materially interfere with the use and enjoyment of
the Project by the other tenants thereof.
(b) It shall not be unreasonable for Landlord to withhold its consent to any
proposed Transfer if (i) the proposed transferee's anticipated use of the
Premises involves the generation, storage, use, treatment, or disposal of
Hazardous Material; (ii) the proposed Transferee has been required by any prior
landlord, lender, or governmental authority to take remedial action in
connection with Hazardous Material contaminating a property if the contamination
resulted from such Transferee's actions or use of the property in question; or
(iii) the proposed Transferee is subject to an enforcement order issued by any
governmental authority in connection with the use, disposal, or storage of a
Hazardous Material.
(c) As used herein, the term "HAZARDOUS MATERIAL" means any hazardous or
toxic substance, material, or waste which is or becomes regulated by any local
governmental authority, the State of California or the United States Government.
The term "Hazardous Material" includes, without limitation, any material or
substance which is (i) defined as "Hazardous Waste," "Extremely Hazardous
Waste," or "Restricted Hazardous Waste" under Sections 25115, 25117 or 25122.7,
or listed pursuant to Section 25140, of the California Health and Safety Code,
Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defined as a
"Hazardous Substance" under Section 25316 of the California Health and Safety
Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance
Account Act), (iii) defined as a "Hazardous Material," "Hazardous Substance," or
"Hazardous Waste" under Section 25501 of the California Health and Safety Code,
Division 20, Chapter 6.95 (Hazardous Materials Release Response
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Plans and Inventory), (iv) defined as a "Hazardous Substance" under Section
25281 of the California Health and Safety Code, Division 20, Chapter 6.7
(Underground Storage of Hazardous Substances), (v) petroleum, (vi) asbestos,
(vii) listed under Article 9 or defined as Hazardous or extremely hazardous
pursuant to Article 11 of Title 22 of the California Administrative Code,
Division 4, Chapter 20, (viii) designated as a "Hazardous Substance" pursuant to
Section 311 of the Federal Water Pollution Control Act (33 U.S.C. (S) 1317),
(ix) defined as a "Hazardous Waste" pursuant to Section 1004 of the Federal
Resource Conservation and Recovery Act, 42 U.S.C. (S) 6901 et seq. (42 U.S.C.
(S) 6903), or (x) defined as a "Hazardous Substance" pursuant to Section 101 of
the Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. (S) 9601 et seq. (42 U.S.C. (S) 9601).
(d) As used herein, the term "LAWS" mean any applicable federal, state or
local laws, ordinances, or regulations relating to any Hazardous Material
affecting the Project, including, without limitation, the laws, ordinances, and
regulations referred to in Article 28(c) above.
ARTICLE 29
----------
SURRENDER OF PREMISES; REMOVAL OF PROPERTY
------------------------------------------
(a) The voluntary or other surrender of this Lease by Tenant to Landlord, or
a mutual termination hereof, shall not work a merger, and shall at the option of
Landlord, operate as an assignment to it of any or all subleases or subtenancies
affecting the Premises.
(b) Upon the expiration of the Term of this Lease, or upon any earlier
termination of this Lease, Tenant shall quit and surrender possession of the
Premises to Landlord in as good order and condition as the same are now and
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, telephone and data cabling and other
articles of personal property owned by Tenant or installed or placed by Tenant
at its own expense in the Premises, and all similar articles of any other
persons claiming under Tenant unless Landlord exercises its option to have any
subleases or subtenancies assigned to it, and Tenant shall repair all damage to
the Premises resulting from the installation and removal of such items to be
removed.
(c) Whenever Landlord shall reenter the Premises as provided in Article 12
hereof, or as otherwise provided in this Lease, any property of Tenant not
removed by Tenant upon the expiration of the Term of this Lease (or within
forty-eight (48) hours after a termination by reason of Tenant's default), as
provided in this Lease, shall be considered abandoned and Landlord may remove
any or all of such items and dispose of the same in any manner or store the
same in a public warehouse or elsewhere for the account and at the expense and
risk of Tenant, and if Tenant shall fail to pay the cost of storing any such
property after it has been stored for a period of ninety (90) days or more,
Landlord may sell any or all of such property at public or private sale, in
such manner and at such times and places as Landlord, in its sole discretion,
may deem proper, without notice or to demand upon Tenant, for the payment of
all or any part of such charges or the removal of any such property, and shall
apply the proceeds of such sale as follows: first, to the cost and expense of
such sale, including reasonable attorneys' fees for services rendered; second,
to the payment of the cost of or charges for storing any such property; third,
to the payment of any other sums of money which may then or thereafter be due
to Landlord from Tenant under any of the terms hereof; and fourth, the balance,
if any, to Tenant.
(d) All fixtures, equipment, leasehold improvements, Alterations and/or
appurtenances attached to or built into the Premises prior to or during the
Term, whether by Landlord or Tenant and whether at the expense of Landlord or
Tenant, or of both, shall be and remain part of the Premises and shall not be
removed by Tenant at the end of the Term unless otherwise expressly provided for
in this Lease or unless such removal is required by Landlord as expressly
provided elsewhere in this Lease. Such fixtures, equipment, leasehold
improvements, Alterations, additions, improvements and/or appurtenances shall
include but not be limited to: all floor coverings, drapes, paneling, built-in
cabinetry, molding, doors, vaults (including vault doors), plumbing systems,
security systems, electrical systems, lighting systems, silencing equipment,
communication systems, all fixtures and outlets for the systems mentioned above
and for all telephone, radio, telegraph and television purposes, and any special
flooring or ceiling installations.
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ARTICLE 30
----------
MISCELLANEOUS
-------------
(a) Severability; Entire Agreement. Any provision of this Lease which shall
prove to be invalid, void, or illegal shall in no way affect, impair or
invalidate any other provision hereof and such other provisions shall remain in
full force and effect. This Lease and the Exhibits and any Addendum attached
hereto constitute the entire agreement between the parties hereto with respect
to the subject matter hereof, and no prior agreement or understanding pertaining
to any such matter shall be effective for any purpose. No provision of this
Lease may be amended or supplemented except by an agreement in writing signed by
the parties hereto or their successor in interest.
(b) Attorneys' Fees; Waiver of Jury Trial.
(i) In any action to enforce the terms of this Lease, including any suit
by Landlord for the recovery of rent or possession of the Premises, the losing
party shall pay the successful party a reasonable sum for attorneys' fees and
costs in such suit and such attorneys' fees and costs shall be deemed to have
accrued prior to the commencement of such action and shall be paid whether or
not such action is prosecuted to judgment.
(ii) EACH PARTY HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION
SEEKING SPECIFIC PERFORMANCE OF ANY PROVISION OF THIS LEASE, FOR DAMAGES FOR ANY
BREACH UNDER THIS LEASE, OR OTHERWISE FOR ENFORCEMENT OF ANY RIGHT OR REMEDY
HEREUNDER.
(c) Time of Essence. Time is of the essence with respect to the performance
of every provision of this Lease.
(d) Headings; Joint and Several. The article headings contained in this Lease
are for convenience only and do not in any way limit or amplify any term or
provision hereof. The terms "Landlord" and "Tenant" as used herein shall include
the plural as well as the singular, the neuter shall include the masculine and
feminine genders and the obligations herein imposed upon Tenant shall be joint
and several as to each of the persons, firms or corporations of which Tenant may
be composed.
(e) Reserved Area. Tenant hereby acknowledges and agrees that the exterior
walls of the Premises and the area between the finished ceiling of the Premises
and the slab of the floor of the project thereabove have not been demised hereby
and the use thereof together with the right to install, maintain, use, repair
and replace pipes, ducts, conduits and wires leading through, under or above the
Premises in locations which will not materially interfere with Tenant's use of
the Premises and serving other parts of the Project are hereby excepted and
reserved unto Landlord.
(f) NO OPTION. THE SUBMISSION OF THIS LEASE BY LANDLORD, ITS AGENT OR
REPRESENTATIVE FOR EXAMINATION OR EXECUTION BY TENANT DOES NOT CONSTITUTE AN
OPTION OR OFFER TO LEASE THE PREMISES UPON THE TERMS AND CONDITIONS CONTAINED
HEREIN OR A RESERVATION OF THE PREMISES IN FAVOR OF TENANT, IT BEING INTENDED
HEREBY THAT THIS LEASE SHALL ONLY BECOME EFFECTIVE UPON THE EXECUTION HEREOF BY
LANDLORD AND TENANT AND DELIVERY OF A FULLY EXECUTED LEASE TO TENANT.
(g) Use of Project Name; Improvements. Tenant shall not be allowed to use the
name, picture or representation of the Project, or words to that effect, in
connection with any business carried on in the Premises or otherwise (except as
Tenant's address) without the prior written consent of Landlord. In the event
that Landlord undertakes any additional improvements on the Real Property
including but not limited to new construction or renovation or additions to the
existing improvements, Landlord shall not be liable to Tenant for any noise,
dust, vibration or interference with access to the Premises or disruption in
Tenant's business caused thereby.
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(h) Rules and Regulations. Tenant shall observe faithfully and comply
strictly with the Rules and Regulations attached to this Lease as Exhibit "B"
and made a part hereof, and such other Rules and Regulations as Landlord may
from time to time reasonably adopt for the safety, care and cleanliness of the
Project, the facilities thereof, or the preservation of good order therein.
Landlord shall not be liable to Tenant for violation of any such Rules and
Regulations, or for the breach of any covenant or condition in any lease by any
other tenant in the Project. A waiver by Landlord of any Rule or Regulation for
any other tenant shall not constitute nor be deemed a waiver of the Rule or
Regulation for this Tenant.
(i) Quiet Possession. Upon Tenant's paying the Basic Rent, Additional Rent
and other sums provided hereunder and observing and performing all of the
covenants, conditions and provisions on Tenant's part to be observed and
performed hereunder, Tenant shall have quiet possession of the Premises for the
entire Term hereof, subject to all of the provisions of this Lease.
(j) Rent. All payments required to be made hereunder to Landlord shall be
deemed to be rent, whether or not described as such.
(k) Successors and Assigns. Subject to the provisions of Article 15 hereof,
all of the covenants, conditions and provisions of this Lease shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
heirs, personal representatives, successors and assigns.
(l) Notices. Any notice required or permitted to be given hereunder shall be
in writing and may be given by personal service evidenced by a signed receipt or
sent by registered or certified mail, return receipt requested, or via overnight
courier, and shall be effective upon proof of delivery, addressed to Tenant at
the Premises with a copy to Tenant at C-Bridge Internet Solutions, Inc., 219
Vassar Street, Cambridge, MA, 02139, Attn: Chief Counsel, Clifford B. Thompson
or to Landlord at the management office for the Project, with a copy to
Landlord, c/o Arden Realty, Inc., 11601 Wilshire Boulevard, Fourth Floor, Los
Angeles, California 90025, Attn: Legal Department. Either party may by notice to
the other specify a different address for notice purposes except that, upon
Tenant's taking possession of the Premises, the Premises shall constitute
Tenant's address for notice purposes. A copy of all notices to be given to
Landlord hereunder shall be concurrently transmitted by Tenant to such party
hereafter designated by notice from Landlord to Tenant. Any notices sent by
Landlord regarding or relating to eviction procedures, including without
limitation three day notices, may be sent by regular mail.
(m) Access. Subject to Landlord's security requirements, repairs made by the
Landlord to the Project and Articles 16 and 18 above, Tenant shall have access
to the Premises twenty-four (24) hours per day, seven (7) days per week
throughout the Term.
(n) Right of Landlord to Perform. All covenants and agreements to be
performed by Tenant under any of the terms of this Lease shall be performed by
Tenant at Tenant's sole cost and expense and without any abatement of rent. If
Tenant shall fail to pay any sum of money, other than rent, required to be paid
by it hereunder or shall fail to perform any other act on its part to be
performed hereunder, and such failure shall continue beyond any applicable cure
period set forth in this Lease, Landlord may, but shall not be obligated to,
without waiving or releasing Tenant from any obligations of Tenant, make any
such payment or perform any such other act on Tenant's part to be made or
performed as is in this Lease provided. All sums so paid by Landlord and all
reasonable incidental costs, together with interest thereon at the rate of ten
percent (10%) per annum from the date of such payment by Landlord, shall be
payable to Landlord on demand and Tenant covenants to pay any such sums, and
Landlord shall have (in addition to any other right or remedy of Landlord) the
same rights and remedies in the event of the nonpayment thereof by Tenant as in
the case of default by Tenant in the payment of the rent.
(o) Access, Changes in Project, Facilities, Name.
(i) Every part of the Project except the inside surfaces of all walls,
windows and doors bounding the Premises (including exterior building walls, core
corridor walls and doors and any core corridor entrance), and any space in or
adjacent to the Premises used for shafts, stacks, pipes, conduits, fan rooms,
ducts, electric or other utilities, sinks or other building facilities, and the
use thereof, as well as access thereto through the Premises for the purposes of
operation, maintenance, decoration and repair, are reserved to Landlord.
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(ii) Landlord reserves the right, without incurring any liability to
Tenant therefor, to make such changes in or to the Project and the fixtures and
equipment thereof, as well as in or to the street entrances, halls, passages,
elevators, stairways and other improvements thereof, as it may deem necessary or
desirable.
(iii) Landlord may adopt any name for the Project and Landlord reserves
the right to change the name or address of the Project at any time. (p) Signing
Authority. Concurrently with Tenant's execution of this Lease, Tenant shall
provide to Landlord reasonably satisfactory evidence that the individuals
executing this Lease on behalf of Tenant are authorized to bind Tenant and to
enter into this Lease.
(q) Intentionally Omitted.
(r) Substitute Premises. Landlord shall have the right at any time during the
Term hereof, upon giving Tenant not less than sixty (60) days prior notice, to
provide and furnish Tenant with space elsewhere in the Project on the fourth
(4th) floor or higher and of approximately the same size as the Premises and
remove and place Tenant in such space, with Landlord to (i) improve such new
space to a level equivalent to that of the original Premises, (ii) pay for
Tenant to reprint a reasonable quantity of business stationery and for the
printing and mailing of a reasonable number of announcements of Tenant's new
address, and (iii) pay all other verified and previously approved costs and
expenses incurred as a result of such movement to such new space including,
without limitation, cabling and reconnection costs for Tenant's telephone, fax
and computer equipment. If Landlord moves Tenant to such new space, this Lease
and each and all of its terms, covenants and conditions shall remain in full
force and effect and shall be deemed applicable to such new space and such new
space shall thereafter be deemed to be the "Premises" as though Landlord and
Tenant had entered into an express written amendment of this Lease with respect
thereto.
(s) Survival of Obligations. Any obligations of Tenant occurring prior to the
expiration or earlier termination of this Lease shall survive such expiration or
earlier termination.
(t) Confidentiality. Tenant acknowledges that the content of this Lease and
any related documents are confidential information. Tenant shall keep such
confidential information strictly confidential and shall not disclose such
confidential information to any person or entity other than Tenant's financial,
legal and space planning consultants and any proposed subtenants or assignees.
(u) Governing Law. This Lease shall be governed by and construed in
accordance with the laws of the State of California. No conflicts of law rules
of any state or country (including, without limitation, California conflicts of
law rules) shall be applied to result in the application of any substantive or
procedural laws of any state or country other than California. All
controversies, claims, actions or causes of action arising between the parties
hereto and/or their respective successors and assigns, shall be brought, heard
and adjudicated by the courts of the State of California, with venue in the
County of Los Angeles. Each of the parties hereto hereby consents to personal
jurisdiction by the courts of the State of California in connection with any
such controversy, claim, action or cause of action, and each of the parties
hereto consents to service of process by any means authorized by California law
and consent to the enforcement of any judgment so obtained in the courts of the
State of California on the same terms and conditions as if such controversy,
claim, action or cause of action had been originally heard and adjudicated to a
final judgment in such courts. Each of the parties hereto further acknowledges
that the laws and courts of California were freely and voluntarily chosen to
govern this Lease and to adjudicate any claims or disputes hereunder.
(v) Exhibits and Addendum. The Exhibits and Addendum, if applicable, attached
hereto are incorporated herein by this reference as if fully set forth herein.
ARTICLE 31
----------
OPTION TO EXTEND
----------------
(a) Option Right. Landlord hereby grants the Tenant named in this Lease (the
"ORIGINAL TENANT") one (1) option ("OPTION") to extend the Lease Term for the
entire Premises
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for a period of five (5) years (an "OPTION TERM"), which option shall be
exercisable only by written notice delivered by Tenant to Landlord set forth
below. The rights contained in this Article 31 shall be personal to the Original
Tenant and any assignee of Tenant's entire interest in this Lease where such
assignment is made in accordance with Article 15 above ("PERMITTED ASSIGNEE")
and may only be exercised by the Original Tenant or such Permitted Assignee if
the Original Tenant or such Permitted Assignee occupies the entire Premises as
of the date of Tenant's Acceptance (as defined in Section 31(c) below).
(b) Option Rent. The rent payable by Tenant during the Option Term ("OPTION
RENT") shall be equal to the "Market Rent" (defined below), but in no event
shall the Option Rent be less than Tenant is paying under the Lease on the month
immediately preceding the Option Term for Monthly Basic Rental, including all
escalations, Direct Costs, additional rent and other charges. "MARKET RENT"
shall mean the applicable Monthly Basic Rental, including all escalations,
Direct Costs, additional rent and other charges at which tenants, as of the time
of Landlord's "Option Rent Notice" (as defined below), are entering into leases
for non-sublease, non-encumbered, space comparable in size, location and quality
to the Premises in renewal transactions for a term comparable to the Option Term
which comparable space is located in office buildings comparable to the Project
in the West Los Angeles Area of California (but within a two (2) mile radius of
the Project), taking into consideration the value of the existing improvements
in the Premises to Tenant, as compared to the value of the existing improvements
in such comparable space, with such value to be based upon the age, quality and
layout of the improvements and the extent to which the same could be utilized by
Tenant with consideration given to the fact that the improvements existing in
the Premises are specifically suitable to Tenant.
(c) Exercise of Option. The Option shall be exercised by Tenant only in the
following manner: (i) Tenant shall not be in default beyond the expiration of
any applicable cure period on the delivery date of the Interest Notice and
Tenant's Acceptance; (ii) Tenant shall deliver written notice ("INTEREST
NOTICE") to Landlord not more than twelve (12) months nor less than nine (9)
months prior to the expiration of the Lease Term, stating that Tenant is
interested in exercising the Option, (iii) within fifteen (15) business days of
Landlord's receipt of Tenant's written notice, Landlord shall deliver notice
("OPTION RENT NOTICE") to Tenant setting forth the Option Rent; and (iv) if
Tenant desires to exercise such Option, Tenant shall provide Landlord written
notice within ten (10) business days after receipt of the Option Rent Notice
("TENANT'S ACCEPTANCE'"). Tenant's failure to deliver the Interest Notice or
Tenant's Acceptance on or before the dates specified above shall be deemed to
constitute Tenant's election not to exercise the Option. If Tenant timely and
properly exercises its Option, the Lease Term shall be extended for the Option
Term upon all of the terms and conditions set forth in this Lease, except that
the rent for the Option Term shall be as indicated in the Option Rent Notice.
ARTICLE 32
----------
DIRECTORY
---------
Tenant, at Tenant's sole cost and expense, shall have the right to one (1)
line in the lobby directory during the Lease Term.
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<PAGE>
IN WITNESS WHEREOF, the parties have executed this Lease, consisting of the
foregoing provisions and Articles, including all exhibits and other attachments
referenced therein, as of the date first above written.
"LANDLORD" ARDEN REALTY LIMITED PARTNERSHIP,
a Maryland limited partnership
By: ARDEN REALTY, INC.
a Maryland corporation
Its: Sole General Partner
By: /s/
------------------------------------
VICTOR J. COLEMAN
Its: President and COO
By: /s/ Robert C. Peddiford
------------------------------------
Its: Senior Vice President
"TENANT" C-BRIDGE INTERNET SOLUTIONS, INC.,
a Delaware corporation
By: /s/
------------------------------------
Print Name: Rick Wester
Title: VP Finance
By: /s/
------------------------------------
Print Name: Clifford B. Thompson
Title: VP & General Counsel
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<PAGE>
EXHIBIT "A"
-----------
PREMISES
--------
Rough drawing of Premises Omitted
EXHIBIT "A"
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<PAGE>
EXHIBIT "B"
-----------
RULES AND REGULATIONS
---------------------
1. No sign, advertisement or notice shall be displayed, printed or affixed on
or to the Premises or to the outside or inside of the Project or so as to be
visible from outside the Premises or Project without Landlord's prior written
consent. Landlord shall have the right to remove any non-approved sign,
advertisement or notice, without notice to and at the expense of Tenant, and
Landlord shall not be liable in damages for such removal. All approved signs or
lettering on doors and walls shall be printed, painted, affixed or inscribed at
the expense of Tenant by Landlord or by a person selected by Landlord and in a
manner and style acceptable to Landlord.
2. Tenant shall not obtain for use on the Premises ice, waxing, cleaning,
interior glass polishing, rubbish removal, towel or other similar services, or
accept barbering or bootblackening, or coffee cart services, milk, soft drinks
or other like services on the Premises, except from persons authorized by
Landlord and at the hours and under regulations fixed by Landlord. No vending
machines or machines of any description shall be installed, maintained or
operated upon the Premises without Landlord's prior written consent.
3. The sidewalks, halls, passages, exits, entrances, elevators and stairways
shall not be obstructed by Tenant or used for any purpose other than for ingress
and egress from Tenant's Premises. Under no circumstances is trash to be stored
in the corridors. Notice must be given to Landlord for any large deliveries.
Furniture, freight and other large or heavy articles, and all other deliveries
may be brought into the Project only at times and in the manner designated by
Landlord, and always at Tenant's sole responsibility and risk. Landlord may
impose reasonable charges for use of freight elevators after or before normal
business hours. All damage done to the Project by moving or maintaining such
furniture, freight or articles shall be repaired by Landlord at Tenant's
expense. Tenant shall not take or permit to be taken in or out of entrances or
passenger elevators of the Project, any item normally taken, or which Landlord
otherwise reasonably requires to be taken, in or out through service doors or on
freight elevators. Tenant shall move all supplies, furniture and equipment as
soon as received directly to the Premises, and shall move all waste that is at
any time being taken from the Premises directly to the areas designated for
disposal.
4. Toilet rooms, toilets, urinals, wash bowls and other apparatus shall not
be used for any purpose other than for which they were constructed and no
foreign substance of any kind whatsoever shall be thrown therein.
5. Tenant shall not overload the floor of the Premises or mark, drive nails,
screw or drill into the partitions, ceilings or floor or in any way deface the
Premises. Tenant shall not place typed, handwritten or computer generated signs
in the corridors or any other common areas. Should there be a need for signage
additional to the Project standard tenant placard, a written request shall be
made to Landlord to obtain approval prior to any installation. All costs for
said signage shall be Tenant's responsibility.
6. In no event shall Tenant place a load upon any floor of the Premises or
portion of any such flooring exceeding the floor load per square foot of area
for which such floor is designed to carry and which is allowed by law, or any
machinery or equipment which shall cause excessive vibration to the Premises or
noticeable vibration to any other part of the Project. Prior to bringing any
heavy safes, vaults, large computers or similarly heavy equipment into the
Project, Tenant shall inform Landlord in writing of the dimensions and weights
thereof and shall obtain Landlord's consent thereto. Such consent shall not
constitute a representation or warranty by Landlord that the safe, vault or
other equipment complies, with regard to distribution of weight and/or
vibration, with the provisions of this Rule 6 nor relieve Tenant from
responsibility for the consequences of such noncompliance, and any such safe,
vault or other equipment which Landlord determines to constitute a danger of
damage to the Project or a nuisance to other tenants, either alone or in
combination with other heavy and/or vibrating objects and equipment, shall be
promptly removed by Tenant, at Tenant's cost, upon Landlord's written notice of
such determination and demand for removal thereof.
EXHIBIT "B"
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<PAGE>
7. Tenant shall not use or keep in the Premises or Project any kerosene,
gasoline or inflammable, explosive or combustible fluid or material, or use any
method of heating or air-conditioning other than that supplied by Landlord.
8. Tenant shall not lay linoleum, tile, carpet or other similar floor
covering so that the same shall be affixed to the floor of the Premises in any
manner except as approved by Landlord.
9. Tenant shall not install or use any blinds, shades, awnings or screens in
connection with any window or door of the Premises and shall not use any drape
or window covering facing any exterior glass surface other than the standard
drapes, blinds or other window covering established by Landlord.
10. Tenant shall cooperate with Landlord in obtaining maximum effectiveness
of the cooling system by closing window coverings when the sun's rays fall
directly on windows of the Premises. Tenant shall not obstruct, alter, or in any
way impair the efficient operation of Landlord's heating, ventilating and air-
conditioning system. Tenant shall not tamper with or change the setting of any
thermostats or control valves.
11. The Premises shall not be used for manufacturing or for the storage of
merchandise except as such storage may be incidental to the permitted use of the
Premises. Tenant shall not, without Landlord's prior written consent, occupy or
permit any portion of the Premises to be occupied or used for the manufacture or
sale of liquor or tobacco in any form, or a barber or manicure shop, or as an
employment bureau. The Premises shall not be used for lodging or sleeping or
for any improper, objectionable or immoral purpose. No auction shall be
conducted on the Premises.
12. Tenant shall not make, or permit to be made, any unseemly or disturbing
noises, or disturb or interfere with occupants of Project or neighboring
buildings or premises or those having business with it by the use of any musical
instrument, radio, phonographs or unusual noise, or in any other way.
13. No bicycles, vehicles or animals of any kind shall be brought into or
kept in or about the Premises, and no cooking shall be done or permitted by any
tenant in the Premises, except that the preparation of coffee, tea, hot
chocolate and similar items for tenants, their employees and visitors shall be
permitted. No tenant shall cause or permit any unusual or objectionable odors to
be produced in or permeate from or throughout the Premises. The foregoing
notwithstanding, Tenant shall have the right to use a microwave and to heat
microwavable items typically heated in an office. No hot plates, toasters,
toaster ovens or similar open element cooking apparatus shall be permitted in
the Premises.
14. The sashes, sash doors, skylights, windows and doors that reflect or
admit light and air into the halls, passageways or other public places in the
Project shall not be covered or obstructed by any tenant, nor shall any bottles,
parcels or other articles be placed on the window sills.
15. No additional locks or bolts of any kind shall be placed upon any of the
doors or windows by any tenant, nor shall any changes be made in existing locks
or the mechanisms thereof unless Landlord is first notified thereof, gives
written approval, and is furnished a key therefor. Each tenant must, upon the
termination of his tenancy, give to Landlord all keys and key cards of stores,
offices, or toilets or toilet rooms, either furnished to, or otherwise procured
by, such tenant, and in the event of the loss of any keys so furnished, such
tenant shall pay Landlord the cost of replacing the same or of changing the lock
or locks opened by such lost key if Landlord shall deem it necessary to make
such change. If more than two keys for one lock are desired, Landlord will
provide them upon payment therefor by Tenant. Tenant shall not key or re-key
any locks. All locks shall be keyed by Landlord's locksmith only.
16. Landlord shall have the right to prohibit any advertising by any tenant
which, in Landlord's opinion, tends to impair the reputation of the Project or
its desirability as an office building and upon written notice from Landlord any
tenant shall refrain from and discontinue such advertising.
EXHIBIT "B"
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<PAGE>
17. Landlord reserves the right to control access to the Project by all
persons after reasonable hours of generally recognized business days and at all
hours on Sundays and legal holidays. Each tenant shall be responsible for all
persons for whom it requests after hours access and shall be liable to Landlord
for all acts of such persons. Landlord shall have the right from time to time to
establish reasonable rules pertaining to freight elevator usage, including the
allocation and reservation of such usage for tenants' initial move-in to their
premises, and final departure therefrom.
18. Any person employed by any tenant to do janitorial work shall, while in
the Project and outside of the Premises, be subject to and under the control and
direction of the Office of the Project or its designated representative such as
security personnel (but not as an agent or servant of Landlord, and the Tenant
shall be responsible for all acts of such persons).
19. All doors opening on to public corridors shall be kept closed, except
when being used for ingress and egress. Tenant shall cooperate and comply with
any reasonable safety or security programs, including fire drills and air raid
drills, and the appointment of "fire wardens" developed by Landlord for the
Project, or required by law. Before leaving the Premises unattended, Tenant
shall close and securely lock all doors or other means of entry to the Premises
and shut off all lights and water faucets in the Premises.
20. The requirements of tenants will be attended to only upon application to
the Office of the Project.
21. Canvassing, soliciting and peddling in the Project are prohibited and
each tenant shall cooperate to prevent the same.
22. All office equipment of any electrical or mechanical nature shall be
placed by tenants in the Premises in settings approved by Landlord, to absorb or
prevent any vibration, noise or annoyance.
23. No air-conditioning unit or other similar apparatus shall be installed or
used by any tenant without the prior written consent of Landlord. Tenant shall
pay the cost of all electricity used for air-conditioning in the Premises if
such electrical consumption exceeds normal office requirements, regardless of
whether additional apparatus is installed pursuant to the preceding sentence.
24. There shall not be used in any space, or in the public halls of the
Project, either by any tenant or others, any hand trucks except those equipped
with rubber tires and side guards.
25. All electrical ceiling fixtures hung in offices or spaces along the
perimeter of the Project must be fluorescent and/or of a quality, type, design
and bulb color approved by Landlord. Tenant shall not permit the consumption in
the Premises of more than 2 1/2 watts per net usable square foot in the Premises
in respect of office lighting nor shall Tenant permit the consumption in the
Premises of more than 1 1/2 watts per net usable square foot of space in the
Premises in respect of the power outlets therein, at any one time. In the event
that such limits are exceeded, Landlord shall have the right to require Tenant
to remove lighting fixtures and equipment and/or to charge Tenant for the cost
of the additional electricity consumed.
26. Parking.
(a) Project parking facility hours shall be 7:00 a.m. to 7:00 p.m.,
Monday through Friday, and closed on weekends, state and federal holidays
excepted, as such hours may be revised from time to time by Landlord.
(b) Automobiles must be parked entirely within the stall lines on the
floor.
(c) All directional signs and arrows must be observed.
(d) The speed limit shall be 5 miles per hour.
(e) Parking is prohibited in areas not striped for parking.
(f) Parking cards or any other device or form of identification supplied
by Landlord (or its operator) shall remain the property of Landlord (or its
operator). Such parking
EXHIBIT "B"
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<PAGE>
identification device must be displayed as requested and may not be mutilated in
any manner. The serial number of the parking identification device may not be
obliterated. Devices are not transferable or assignable and any device in the
possession of an unauthorized holder will be void. There will be a replacement
charge to the Tenant or person designated by Tenant of $25.00 for loss of any
parking card. There shall be a security deposit of $25.00 due at issuance for
each card key issued to Tenant.
(g) The monthly rate for parking is payable one (1) month in advance
and must be paid by the third business day of each month. Failure to do so will
automatically cancel parking privileges and a charge at the prevailing daily
rate will be due. No deductions or allowances from the monthly rate will be
made for days parker does not use the parking facilities.
(h) Tenant may validate visitor parking by such method or methods as
the Landlord may approve, at the validation rate from time to time generally
applicable to visitor parking.
(i) Landlord (and its operator) may refuse to permit any person who
violates the within rules to park in the Project parking facility, and any
violation of the rules shall subject the automobile to removal from the Project
parking facility at the parker's expense. In either of said events, Landlord
(or its operator) shall refund a prorata portion of the current monthly parking
rate and the sticker or any other form of identification supplied by Landlord
(or its operator) will be returned to Landlord (or its operator).
(j) Project parking facility managers or attendants are not authorized
to make or allow any exceptions to these Rules and Regulations.
(k) All responsibility for any loss or damage to automobiles or any
personal property therein is assumed by the parker.
(l) Loss or theft of parking identification devices from automobiles
must be reported to the Project parking facility manager immediately, and a lost
or stolen report must be filed by the parker at that time.
(m) The Parking facilities are for the sole purpose of parking one
automobile per space. Washing, waxing, cleaning or servicing of any vehicles by
the parker or his agents is prohibited.
(n) Landlord (and its operator) reserves the right to refuse the
issuance of monthly stickers or other parking identification devices to any
Tenant and/or its employees who refuse to comply with the above Rules and
Regulations and all City, State or Federal ordinances, laws or agreements.
(o) Tenant agrees to acquaint all employees with these Rules and
Regulations.
(p) No vehicle shall be stored in the Project parking facility for a
period of more than one (1) week.
27. The Project is a non-smoking Project. Smoking or carrying lighted cigars
or cigarettes in the Premises or the Project, including the elevators in the
Project, is prohibited.
EXHIBIT "B"
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<PAGE>
EXHIBIT "C"
-----------
NOTICE OF LEASE TERM DATES
AND TENANT'S PROPORTIONATE SHARE
--------------------------------
TO: _________________________________ DATE: ________________________________
_____________________________________
_____________________________________
RE: Lease dated ________________, 2000, between ______________________________
___________________________ ("LANDLORD"), and ____________________________
___________________________ ("TENANT"), concerning Suite _______, located
at __________________________________________.
Ladies and Gentlemen:
In accordance with the Lease, Landlord wishes to advise and/or confirm the
following:
1. That the Premises have been accepted herewith by the Tenant as being
substantially complete in accordance with the Lease and that there is no
deficiency in construction.
2. That the Tenant has taken possession of the Premises and acknowledges that
under the provisions of the Lease the Term of said Lease commenced on
___________(i.e., the Commencement Date under the Lease), the Abatement Period
expired on _________, and the Expiration Date shall be _____________.
3. That in accordance with the Lease, the Abatement Period expired on
_____________ and Basic Rental commenced to accrue on the day following the date
of expiration of the Abatement Period.
4. If the date of expiration of the Abatement Period is other than the last
day of the month, the first billing will contain a prorata adjustment. Each
billing thereafter shall be for the full amount of the monthly installment as
provided for in said Lease.
5. Effective as of the day after the date of expiration of the Abatement
Period, rent is due and payable in advance on the first day of each and every
month during the Term of said Lease. Your rent checks should be made payable to
________________________ at ________________________________________________.
6. The exact number of rentable square feet within the Premises is __________
square feet.
7. Tenant's Proportionate Share, as adjusted based upon the exact number of
rentable square feet within the Premises is _______%.
AGREED AND ACCEPTED:
TENANT:
__________________________________,
a ________________________________
By: ______________________________
Its: _________________________
EXHIBIT ONLY
***DO NOT SIGN - INITIAL ONLY***
EXHIBIT "C"
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EXHIBIT "D"
-----------
TENANT WORK LETTER
------------------
This Tenant Work Letter shall set forth the terms and conditions relating
to the renovation of the tenant improvements in the Premises. This Tenant Work
Letter is essentially organized chronologically and addresses the issues of the
renovation of the Premises, in sequence, as such issues will arise.
SECTION 1
---------
LANDLORD'S INITIAL CONSTRUCTION IN THE PREMISES
-----------------------------------------------
Landlord has constructed, at its sole cost and expense, the base, shell and
core (i) of the Premises, and (ii) of the floor of the Project on which the
Premises is located (collectively, the "BASE, SHELL AND CORE"). Tenant has
inspected and hereby approves the condition of the Base, Shell and Core, and
agrees that the Base, Shell and Core shall be delivered to Tenant in its current
"as-is" condition. The improvements to be initially installed in the Premises
shall be designed and constructed pursuant to this Tenant Work Letter. Any
costs of initial design and construction of any improvements to the Premises
shall be an "Improvement Allowance Item", as that term is defined in Section 2.2
of this Tenant Work Letter.
SECTION 2
---------
IMPROVEMENTS
------------
2.1 Improvement Allowance. Tenant shall be entitled to a one-time
improvement allowance in the amount of $133,005 for the costs relating to the
initial design and construction of Tenant's improvements which are permanently
affixed to the Premises (the "IMPROVEMENTS") plus $1,330.05 for the initial
space plan (collectively, the "IMPROVEMENT ALLOWANCE"). Tenant shall have the
option, exercisable by written notice to Landlord on or before the Cost Proposal
Delivery Date, to increase the amount of the Improvement Allowance by up to Five
Dollars ($5.00) per usable square foot of the Premises. If Tenant exercises
such option, monthly Basic Rental payable by Tenant throughout the five (5) year
period from the expiration of the Abatement Period until the Expiration Date
shall be increased by an amount sufficient to fully amortize such increase in
the Improvement Allowance throughout said five (5) year period based upon equal
monthly payments of principal and interest, with interest imputed on the
outstanding principal balance at the rate of eleven percent (11%) per annum and
the parties shall promptly execute an amendment to this Lease in order to
memorialize such increase in the Improvement Allowance and such increase in the
monthly Basic Rental. In no event shall Landlord be obligated to make
disbursements pursuant to this Tenant Work Letter in a total amount which
exceeds the Improvement Allowance and in no event shall Tenant be entitled to
any credit for any unused portion of the Improvement Allowance not used by
Tenant by December 31, 2001.
2.2 Disbursement of the Improvement Allowance. Except as otherwise set
forth in this Tenant Work Letter, the Improvement Allowance shall be disbursed
by Landlord (each of which disbursements shall be made pursuant to Landlord's
disbursement process) for costs related to the construction of the Improvements
and for the following items and costs (collectively, the "IMPROVEMENT ALLOWANCE
ITEMS"): (i) payment of the fees of the "Architect" and the "Engineers," as
those terms are defined in Section 3.1 of this Tenant Work Letter, and payment
of the fees incurred by, and the cost of documents and materials supplied by,
Landlord and Landlord's consultants in connection with the preparation and
review of the "Construction Drawings," as that term is defined in Section 3.1 of
this Tenant Work Letter; (ii) the cost of permits; (iii) the cost of any changes
in the Base, Shell and Core required by the Construction Drawings; (iv) the cost
of any changes to the Construction Drawings or Improvements required by
applicable building codes (the "CODE"); and (v) the "Landlord Supervision Fee",
as that term is defined in Section 4.3.2 of this Tenant Work Letter. However,
in no event shall more than Three and 00/100 Dollars ($3.00) per usable square
foot of the Tenant Improvement Allowance be used for the items described in (i)
and (ii) above; any additional amount incurred as a result of (i) and (ii) above
shall be deemed to constitute an Over-Allowance Amount.
EXHIBIT "D"
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<PAGE>
2.3 Standard Improvement Package. Landlord has established specifications
(the "SPECIFICATIONS") for the Project standard components to be used in the
construction of the Improvements in the Premises (collectively, the "STANDARD
IMPROVEMENT PACKAGE"), which Specifications are available upon request. The
quality of Improvements shall be equal to or of greater quality than the quality
of the Specifications, provided that Landlord may, at Landlord's option, require
the Improvements to comply with certain Specifications.
SECTION 3
---------
CONSTRUCTION DRAWINGS
---------------------
3.1 Selection of Architect/Construction Drawings. Tenant shall retain an
architect/space planner acceptable to Landlord (the "ARCHITECT ") to prepare the
"Construction Drawings," as that term is defined in this Section 3.1. Tenant
shall also retain the engineering consultants designated by Landlord (the
"ENGINEERS ") to prepare all plans and engineering working drawings relating to
the structural, mechanical, electrical, plumbing, HVAC and lifesafety work of
the Tenant Improvements. The plans and drawings to be prepared by Architect and
the Engineers hereunder shall be known collectively as the "CONSTRUCTION
DRAWINGS." All Construction Drawings shall comply with the drawing format and
specifications as reasonably determined by Landlord, and shall be subject to
Landlord's reasonable approval. Tenant and Architect shall verify, in the
field, the dimensions and conditions as shown on the relevant portions of the
base building plans, and Tenant and Architect shall be solely responsible for
the same, and Landlord shall have no responsibility in connection therewith.
Landlord's review of the Construction Drawings as set forth in this Section 3,
shall be for its sole purpose and shall not imply Landlord's review of the same,
or obligate Landlord to review the same, for quality, design, Code compliance or
other like matters. Accordingly, notwithstanding that any Construction Drawings
are reviewed by Landlord or its space planner, architect, engineers and
consultants, and notwithstanding any advice or assistance which may be rendered
to Tenant by Landlord or Landlord's space planner, architect, engineers, and
consultants, Landlord shall have no liability whatsoever in connection therewith
and shall not be responsible for any omissions or errors contained in the
Construction Drawings.
3.2 Final Space Plan. On or before the date set forth in Schedule 1,
attached hereto, Tenant and the Architect shall prepare the final space plan for
Improvements in the Premises (collectively, the "FINAL SPACE PLAN"), which Final
Space Plan shall include a layout and designation of all offices, rooms and
other partitioning, their intended use, and equipment to be contained therein,
and shall deliver the Final Space Plan to Landlord for Landlord's approval.
3.3 Final Working Drawings. On or before the date set forth in Schedule
1, Tenant, the Architect and the Engineers shall complete the architectural and
engineering drawings for the Premises, and the final architectural working
drawings in a form which is complete to allow subcontractors to bid on the work
and to obtain all applicable permits (collectively, the "FINAL WORKING
DRAWINGS") and shall submit the same to Landlord for Landlord's approval.
3.4 Permits. The Final Working Drawings shall be approved by Landlord
(the "APPROVED WORKING DRAWINGS") prior to the commencement of the construction
of the Improvements. Tenant shall cause the Architect to immediately submit the
Approved Working Drawings to the appropriate municipal authorities for all
applicable building permits necessary to allow "Contractor," as that term is
defined in Section 4.1, below, to commence and fully complete the construction
of the Improvements (the "PERMITS"). No changes, modifications or alterations
in the Approved Working Drawings may be made without the prior written consent
of Landlord, which consent shall not be unreasonably withheld.
3.5 Time Deadlines. Tenant shall use its best, good faith efforts and all
due diligence to cooperate with the Architect, the Engineers, and Landlord to
complete all phases of the Construction Drawings and the permitting process and
to receive the permits, and with Contractor for approval of the "Cost Proposal,"
as that term is defined in Section 4.2 of this Tenant Work Letter, as soon as
possible after the execution of the Lease, and, in that regard, shall meet with
Landlord on a scheduled basis to be determined by Landlord, to discuss Tenant's
progress in connection with the same. The applicable dates for approval of
items, plans and drawings as described in this Section 3, Section 4 below, and
in this Tenant Work Letter are set forth and further elaborated upon in Schedule
1 (the "TIME DEADLINES"), attached hereto. Tenant agrees to comply with the
Time Deadlines.
EXHIBIT "D"
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<PAGE>
SECTION 4
---------
CONSTRUCTION OF THE IMPROVEMENTS
--------------------------------
4.1 Contractor. The contractor which shall construct the Improvements
shall be a contractor designated by Landlord. The contractor selected may be
referred to herein as the "CONTRACTOR".
4.2 Cost Proposal. After the Approved Working Drawings are signed by
Landlord and Tenant, Landlord shall provide Tenant with a cost proposal in
accordance with the Approved Working Drawings, which cost proposal shall
include, as nearly as possible, the cost of all Improvement Allowance Items to
be incurred by Tenant in connection with the construction of the Improvements
(the "COST PROPOSAL"). Tenant shall approve and deliver the Cost Proposal to
Landlord within three (3) business days of the receipt of the same, and upon
receipt of the same by Landlord, Landlord shall be released by Tenant to
purchase the items set forth in the Cost Proposal and to commence the
construction relating to such items. The date by which Tenant must approve and
deliver the Cost Proposal to Landlord shall be known hereafter as the "COST
PROPOSAL DELIVERY DATE".
4.3 Construction of Improvements by Contractor under the Supervision of
Landlord.
4.3.1 Over-Allowance Amount. On the Cost Proposal Delivery Date,
Tenant shall deliver to Landlord an amount (the "OVER-ALLOWANCE AMOUNT") equal
to the difference between (i) the amount of the Cost Proposal and (ii) the
amount of the Improvement Allowance (less any portion thereof already disbursed
by Landlord, or in the process of being disbursed by Landlord, on or before the
Cost Proposal Delivery Date). The Over-Allowance Amount shall be disbursed by
Landlord prior to the disbursement of any then remaining portion of the
Improvement Allowance, and such disbursement shall be pursuant to the same
procedure as the Improvement Allowance. In the event that, after the Cost
Proposal Delivery Date, any revisions, changes, or substitutions shall be made
to the Construction Drawings or the Improvements, any additional costs which
arise in connection with such revisions, changes or substitutions or any other
additional costs shall be paid by Tenant to Landlord immediately upon Landlord's
request as an addition to the Over-Allowance Amount. Promptly after Substantial
Completion of the Improvements in the Premises, Landlord shall perform an
accounting to determine the total cost of the Improvement Allowance Items and,
to the extent Tenant has overpaid the Over-Allowance Amount, Landlord shall
refund such excess to Tenant within ten (10) days, or, if Tenant has underpaid
the Over-Allowance Amount, Tenant shall pay such shortfall to Landlord within
ten (10) days after Tenant's receipt of a reasonably particularized invoice.
4.3.2 Landlord's Retention of Contractor. Landlord shall
independently retain Contractor, on behalf of Tenant, to construct the
Improvements in accordance with the Approved Working Drawings and the Cost
Proposal and Landlord shall supervise the construction by Contractor, and Tenant
shall pay a construction supervision and management fee (the "LANDLORD
SUPERVISION FEE") to Landlord in an amount equal to the product of (i) three
percent (3%) and (ii) an amount equal to the Improvement Allowance plus the
Over-Allowance Amount (as such Over-Allowance Amount may increase pursuant to
the terms of this Tenant Work Letter).
SECTION 5
---------
COMPLETION OF THE IMPROVEMENTS
------------------------------
5.1 Substantial Completion. For purposes of this Lease, "SUBSTANTIAL
COMPLETION" of the Improvements in the Premises shall occur upon the completion
of construction of the Improvements in the Premises pursuant to the Approved
Working Drawings, with the exception of any punch list items and any tenant
fixtures, work-stations, built-in furniture, or equipment to be installed by
Tenant.
5.2 Delay of the Substantial Completion of the Premises. Except as
provided in this Section 5.2, the date of expiration of the Abatement Period and
Tenant's obligation to pay rent for the Premises shall occur as set forth in
Article 2 of the Lease. However, if there shall be a delay or there are delays
in the Substantial Completion of the Improvements in the Premises as a result of
the following (collectively, "TENANT DELAYS"):
5.2.1 Tenant's failure to comply with the Time Deadlines;
EXHIBIT "D"
-3-
<PAGE>
5.2.2 Tenant's failure to timely approve any matter requiring
Tenant's approval;
5.2.3 A breach by Tenant of the terms of this Tenant Work Letter or
the Lease;
5.2.4 Changes in any of the Construction Drawings after disapproval
of the same by Landlord or because the same do not comply with Code or other
applicable laws;
5.2.5 Tenant's request for changes in the Approved Working Drawings;
5.2.6 Tenant's requirement for materials, components, finishes or
improvements which are not available in a commercially reasonable time given the
anticipated date of Substantial Completion of the Improvements in the Premises,
or which are different from, or not included in, the Standard Improvement
Package;
5.2.7 Changes to the Base, Shell and Core required by the Approved
Working Drawings; or
5.2.8 Any other acts or omissions of Tenant, or its agents, or
employees;
then, notwithstanding anything to the contrary set forth in the Lease or this
Tenant Work Letter and regardless of the actual date of the Substantial
Completion of Improvements in the Premises, the date of Substantial Completion
thereof shall be deemed to be the date that Substantial Completion would have
occurred if no Tenant Delay or Delays, as set forth above, had occurred.
SECTION 6
---------
MISCELLANEOUS
-------------
6.1 Tenant's Representative. Tenant has designated Don Amaya or his
designee as its sole representative with respect to the matters set forth in
this Tenant Work Letter, who, until further notice to Landlord, shall have full
authority and responsibility to act on behalf of the Tenant as required in this
Tenant Work Letter.
6.2 Landlord's Representative. Prior to commencement of construction of
Improvements, Landlord shall designate a representative with respect to the
matters set forth in this Tenant Work Letter, who, until further notice to
Tenant, shall have full authority and responsibility to act on behalf of the
Landlord as required in this Tenant Work Letter.
6.3 Time of the Essence in This Tenant Work Letter. Unless otherwise
indicated, all references herein to a "number of days" shall mean and refer to
calendar days.
6.4 Punch List. Concurrently with Landlord's delivery of the Premises to
Tenant, a representative of Landlord and a representative of Tenant shall
perform a walk-through inspection of the Improvements in the Premises to
identify any "punch list" items (i.e., minor defects or conditions in such
Improvements that do not impair Tenant's ability to utilize the Premises for the
purposes permitted hereunder), which items Landlord shall repair or correct no
later than thirty (30) days after the date of such walk-through (unless the
nature of such repair or correction is such that more than thirty (30) days are
required for completion, in which case, Landlord shall commence such repair or
correction work within such thirty (30) day period and diligently prosecute the
same to completion).
EXHIBIT "D"
-4-
<PAGE>
SCHEDULE 1
----------
TIME DEADLINES
--------------
<TABLE>
<CAPTION>
Dates Actions to be Performed
------------------------------------------ --------------------------------------------------
<C> <C> <S>
A. May 26, 2000 Tenant to deliver Final Space Plan to Landlord.
B. June 12, 2000 Tenant to deliver Final Working Drawings to
Landlord.
C. Three (3) business days after the Tenant to approve Cost Proposal and deliver Cost
receipt of the Cost Proposal by Tenant. Proposal to Landlord.
</TABLE>
SCHEDULE 1
-1-
<PAGE>
EXHIBIT "E"
-----------
LETTER OF CREDIT
----------------
Arden Realty Limited Partnership
6701 Center Drive West, Suite 1400
Los Angeles, California 90045
Attention: Property Manager
Ladies and Gentlemen:
We hereby establish in your favor, for the account of C-Bridge Internet
Solutions, Inc., a Delaware corporation ("APPLICANT"), our Irrevocable Letter of
Credit and authorize you to draw on us at sight the aggregate amount of Three
Hundred Sixty-Four Thousand Five Hundred Fifty-Eight and 58/100 Dollars
($364,558.58) ("STATED AMOUNT").
Funds under this Letter of Credit are available to Arden Realty Limited
Partnership, a Maryland limited partnership (the "BENEFICIARY") as follows:
Any and all of the sums hereunder may be drawn down at any time and from
time to time from and after the date hereof by Beneficiary when accompanied by
this Letter of Credit and a written certification signed by an authorized
signatory of Beneficiary certifying that such sums are due and owing to
Beneficiary as a result of a default by Applicant with respect to any provision
of that certain Standard Office Lease dated May 11, 2000 ("LEASE") by and
between Beneficiary, as Landlord, and Applicant, as Tenant, together with a
notarized certification by any such individual representing that such individual
is authorized by Beneficiary to take such action on behalf of Beneficiary. The
sums drawn by Beneficiary under this Letter of Credit shall be payable upon
demand without necessity of notice to the Applicant. Partial drawings shall be
permitted.
Subject to our receipt of a written authorization signed by an authorized
signatory of Beneficiary, the Stated Amount of this Letter of Credit shall be
reduced to the following amounts at the following times:
<TABLE>
<CAPTION>
Date Stated Amount
--------------- ----------------
<S> <C>
July 31, 2001 $291,646.86
July 31, 2002 $218,735.14
July 31, 2003 $145,823.42
July 31, 2004 $ 72,911.72
</TABLE>
This Letter of Credit is transferable in its entirety. Should a transfer
be desired, such transfer will be subject to the return to us of this Letter of
Credit, together with written instructions.
The amount of each draft must be endorsed on the reverse hereof by the
negotiating bank. We hereby agree that this Letter of Credit shall be duly
honored upon presentation and delivery of the certification specified above.
This Letter of Credit shall expire on September 30, 2005.
Notwithstanding the above expiration of this Letter of Credit, the term of
this Letter of Credit shall be automatically renewed for successive, additional
one (1) year periods unless, at least thirty (30) days prior to any such date of
expiration, the undersigned shall give written notice to Beneficiary, by
certified mail, return receipt requested and at the address set forth above or
at such other address as may be given to the undersigned by Beneficiary, that
this Letter of Credit will not be renewed.
EXHIBIT "E"
-1-
<PAGE>
This Letter of Credit is governed by the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication 500.
Very truly yours,
(Name of Issuing Bank)
By: ____________________________________________
EXHIBIT ONLY
***DO NOT SIGN - INITIAL ONLY***
EXHIBIT "E"
-2-
