Exhibit
10.1


 


10960 WILSHIRE BOULEVARD


LOS
ANGELES, CALIFORNIA


 


 


OFFICE LEASE AGREEMENT


 


BETWEEN


 


CA-10960
WILSHIRE LIMITED PARTNERSHIP, a Delaware limited partnership


(“LANDLORD”)


 


AND


 


FASTCLICK, INC., a California corporation


(“TENANT”)


 


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OFFICE LEASE AGREEMENT


 


THIS OFFICE LEASE AGREEMENT (the “Lease”)
is made and entered into as of April 7, 2005, by and between, CA-10960 WILSHIRE LIMITED PARTNERSHIP, a Delaware
limited partnership (“Landlord”)
and FASTCLICK, INC., a California corporation
(“Tenant”).  The following exhibits and attachments are
incorporated into and made a part of the Lease: Exhibit A (Outline and Location of Premises), Exhibit B (Expenses and Taxes), Exhibit C (Work Letter), Exhibit D (Commencement Letter), Exhibit E (Building Rules and
Regulations), Exhibit F
(Additional Provisions), Exhibit F-1
(Outline and Location of Temporary Space), Exhibit
G (Parking Agreement), Exhibit H (Asbestos
Notification), Exhibit I (Letter
of Credit).


 


1.     Basic Lease Information.


 


1.01         “Building”
shall mean the building located at 10960 Wilshire Boulevard, Los Angeles,
California, commonly known as 10960 Wilshire Boulevard.  “Rentable
Square Footage of the Building” is deemed to be 576,018  square feet.


 


1.02         “Premises”
shall mean the area shown on Exhibit A
to this Lease.  The Premises is located
on the 19th floor and known as Suite No. 
1950. If the Premises include one or more floors in their entirety, all
corridors and restroom facilities located on such full floor(s) shall be
considered part of the Premises. The “Rentable
Square Footage of the Premises” is deemed to be 8,777 square feet. The usable square
footage of the premises is deemed to be 7,449
square feet. Landlord and Tenant stipulate and agree that the Rentable Square
Footage of the Building and the Rentable Square Footage of the Premises are
correct.


 


1.03         “Base Rent”:


 


	
  Period

  	
   

  	
  Annual Rate 

  Per Square Foot

  	
   

  	
  Monthly Base Rent

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  August 1, 2005
  through July 31, 2006

  	
   

  	
  $

  	
  28.80

  	
   

  	
  $

  	
  21,064.80

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  August 1, 2006
  through July 31, 2007

  	
   

  	
  $

  	
  29.66

  	
   

  	
  $

  	
  21,693.82

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  August 1, 2007
  through July 31, 2008

  	
   

  	
  $

  	
  30.55

  	
   

  	
  $

  	
  22,344.78

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  August 1, 2008
  through July 31, 2009

  	
   

  	
  $

  	
  31.47

  	
   

  	
  $

  	
  23,017.68

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  August 1, 2009
  through July 31, 2010

  	
   

  	
  $

  	
  32.41

  	
   

  	
  $

  	
  23,705.21

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  August 1, 2010
  through November 30, 2010

  	
   

  	
  $

  	
  33.39

  	
   

  	
  $

  	
  24,422.00

  	
   

  



 


BASE RENT ABATEMENT. Notwithstanding anything in this Section of
the Lease to the contrary, so long as Tenant is not in Default (as defined in
Section 18) under this Lease, Tenant shall be entitled to an abatement of
Base Rent in the amount of:  (a) $21,064.80 for 3 full calendar months of
the Term (as defined in Section 1.06) beginning September 1, 2005 and
ending on November 30, 2005, and (b) $21,693.82
for 1 full calendar month of the Term beginning August 1, 2006 and ending
August 31, 2006.  The total amount of
Base Rent abated in accordance with the foregoing shall equal $84,888.22 (the “Abated Base Rent”). Only Base Rent shall be abated pursuant to
this Section, and all Additional Rent and other costs and charges specified in
this Lease shall remain as due and payable pursuant to the provisions of this
Lease.


 


1.04         “Tenant’s
Pro Rata Share”: 1.5237%.


 


1.05         “Base Year”
for Taxes (defined in Exhibit B):  2005; “Base
Year” for Expenses (defined in Exhibit B):  2005. 


 


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1.06         “Term”:
The Term shall commence on the Commencement Date and, unless terminated early
in accordance with this Lease, end on the last day of the 64th full calendar
month following the Commencement Date (the “Termination
Date”).  The “Commencement Date” shall mean August 1, 2005, subject to Section 3
below.


 


1.07         Allowance(s): Landlord, provided Tenant is not in Default
and subject to the terms and conditions set forth in Exhibit C, agrees to provide Tenant with an allowance (the “Allowance”) in an amount not to exceed $307,195.00 (i.e., $35.00 per rentable
square foot of the Premises) toward the cost of performing the Initial Alterations
(as defined in Exhibit C) in
preparation of Tenant’s occupancy of the Premises.


 


1.08         “Security
Deposit”:  $0.00, as more fully described in
Section 6.


 


1.09         “Guarantor(s)”:
shall mean any party that agrees in writing to guarantee the Lease.  As of the date first written above, there are
no Guarantors(s).


 


1.10         “Broker(s)”:  CRESA Partners LLC.


 


1.11         “Permitted
Use”:  general office use.


 


1.12         “Notice
Address(es)”:


 


	
  Landlord:

  	
  Tenant:

  
	
  CA-10960 Wilshire Limited 

  Partnership

  	
  Prior to the Commencement
  Date:

  
	
  c/o Equity Office

  	
  FASTCLICK,
  INC.

  
	
  3200 Ocean Park Boulevard

  	
  360 Olive Street

  
	
  Suite 100

  	
  Santa Barbara, CA

  
	
  Santa Monica, California
  90405

  	
  Attention: Kurt Johnson

  
	
  Attn: Property Manager

  	
   

  
	
   

  	
  From and after the
  Commencement 

  
	
   

  	
  Date:

  
	
   

  	
   

  
	
   

  	
  FASTCLICK,
  INC.

  
	
   

  	
  10960 Wilshire Boulevard

  
	
   

  	
  Suite 1950

  
	
   

  	
  Los Angeles, California

  
	
   

  	
  Attention: Kurt Johnson

  



 


A copy of any notices to
Landlord shall be sent to Equity Office, One
Market, 600 Spear Tower, San Francisco, CA 
94105, Attn: Los Angeles Regional Counsel.


 


1.13         “Business Day(s)” are Monday through Friday
of each week, exclusive of New Year’s Day, Presidents Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day and Christmas Day (“Holidays”). 
Landlord may designate additional Holidays that are commonly recognized
by other office buildings in the area where the Building is located.  “Building
Service Hours” are 8:00 a.m. to 6:00 p.m. on Business Days and 8:00
a.m. to 1:00 p.m. on Saturdays.


 


1.14         “Landlord Work”  INTENTIONALLY
OMITTED.


 


1.15         “Property” means
the Building and the parcel(s) of land on which it is located and, at Landlord’s
discretion, the parking facilities and other improvements, if any, serving the
Building and the parcel(s) of land on which they are located.


 


1.16         “Letter of
Credit” is as described in Section II of Exhibit F attached hereto.


 


2.     Lease Grant.


 


The Premises are hereby
leased to Tenant from Landlord, together with the right to use any portions of
the Property that are designated by Landlord for the common use of tenants and
others (the “Common Areas”).


 


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3.     Possession.


 


3.01  INTENTIONALLY
OMITTED.


 


3.02  The Premises are accepted by Tenant in “as is”
condition and configuration without any representations or warranties by Landlord.
By taking possession of the Premises, Tenant agrees that the Premises are in
good order and satisfactory condition. Landlord shall not be liable for a
failure to deliver possession of the Premises or any other space due to the
holdover or unlawful possession of such space by another party, however
Landlord shall use reasonable efforts to obtain possession of the space.  The commencement date for the space, in such
event, shall be postponed until the date Landlord delivers possession of the
Premises to Tenant free from occupancy by any party. If Tenant takes possession
of the Premises before the Commencement Date, such possession shall be subject
to the terms and conditions of this Lease and Tenant shall pay Rent (defined in
Section 4.01) to Landlord for each day of possession before the
Commencement Date.  However, except for
the cost of services requested by Tenant which are not provided free of charge
(e.g. freight elevator usage), Tenant shall not be required to pay Rent for any
days of possession before the Commencement Date during which Tenant, with the
approval of Landlord, is in possession of the Premises for the sole purpose of
performing improvements or installing furniture, equipment or other personal
property.


 


4.     Rent.


 


4.01  Tenant shall pay Landlord, without any setoff
or deduction, unless expressly set forth in this Lease, all Base Rent and
Additional Rent due for the Term (collectively referred to as “Rent”). 
“Additional Rent” means all
sums (exclusive of Base Rent) that Tenant is required to pay Landlord under
this Lease. Tenant shall pay and be liable for all rental, sales and use taxes
(but excluding income taxes), if any, imposed upon or measured by Rent.  Base Rent and recurring monthly charges of
Additional Rent shall be due and payable in advance on the first day of each
calendar month without notice or demand, provided that the installment of Base
Rent for the first full calendar month of the Term shall be payable upon the
execution of this Lease by Tenant.  All
other items of Rent shall be due and payable by Tenant on or before 30 days
after billing by Landlord.  Rent shall be
made payable to the entity, and sent to the address, Landlord designates and
shall be made by good and sufficient check or by other means acceptable to Landlord.  Tenant shall pay Landlord an administration
fee equal to 5% of all past due Rent, provided that Tenant shall be entitled to
a grace period of 5 days after written notice for the first 2 late payments of Rent in a calendar year. In
addition, past due Rent shall accrue interest at 10% per annum. Landlord’s
acceptance of less than the correct amount of Rent shall be considered a
payment on account of the earliest Rent due. Rent for any partial month during
the Term shall be prorated. No endorsement or statement on a check or letter
accompanying payment shall be considered an accord and satisfaction.  Tenant’s covenant to pay Rent is independent
of every other covenant in this Lease.


 


4.02  Tenant shall pay Tenant’s Pro Rata Share of
Taxes and Expenses in accordance with Exhibit B
of this Lease.


 


5.     Compliance with Laws; Use.


 


The Premises shall be used
for the Permitted Use and for no other use whatsoever. Tenant shall comply with
all statutes, codes, ordinances, orders, rules and regulations of any municipal
or governmental entity whether in effect now or later, including the Americans
with Disabilities Act (“Law(s)”),
regarding the operation of Tenant’s business and the use, condition,
configuration and occupancy of the Premises. Except to the extent properly
included in Expenses, Landlord shall be responsible for the cost of correcting
any violations of Title III of the Americans with Disabilities Act (ADA) with
respect to the Common Areas of the Building. 
Notwithstanding the foregoing, Landlord shall have the right to contest
any alleged violation in good faith, including, without limitation, the right
to apply for and obtain a waiver or deferment of compliance, the right to
assert any and all defenses allowed by Law and the right to appeal any decisions,
judgments or rulings to the fullest extent permitted by Law.  Landlord, after the exhaustion of any and all
rights to appeal or contest, will make all repairs, additions, alterations or
improvements necessary to comply with the terms of any final order or judgment. In addition, Tenant shall, at its sole
cost and expense, promptly comply with any Laws that relate to the “Base
Building” (defined below), but only to the extent such obligations are
triggered by Tenant’s use of the Premises, other than for general office use,
or non-customary Alterations or improvements in the Premises performed or
requested by Tenant. Landlord shall comply with all Laws relating to the Base
Building, provided that compliance with such Laws is not the responsibility of
Tenant under this Lease, and provided further that Landlord’s failure to comply



 


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therewith would prohibit Tenant from
obtaining or maintaining a certificate of occupancy (or its legal equivalent)
for the Premises, or would unreasonably and materially affect the safety of
Tenant’s employees or create a significant health hazard for Tenant’s
employees.  “Base Building” shall include the structural portions of the
Building, the public restrooms and the Building mechanical, electrical and
plumbing systems and equipment located in the internal core of the Building on
the floor or floors on which the Premises are located. Tenant shall promptly
provide Landlord with copies of any notices it receives regarding an alleged
violation of Law.  Tenant shall comply
with the rules and regulations of the Building attached as Exhibit E and such other reasonable
rules and regulations adopted by Landlord from time to time, including rules
and regulations for the performance of Alterations (defined in Section 9) ), so long as modifications to the rules do not unreasonably interfere
with Tenant’s use of the Premises for the Permitted Use.  The
rules and regulations shall be generally applicable, and generally applied in
the same manner, to all tenants of the Building. If there is a conflict between
this Lease and any rules and regulations enacted after the date of this Lease,
the terms of this Lease shall control.


 


6.     Security Deposit.


 


The Security Deposit, if
any, shall be delivered to Landlord upon the execution of this Lease by Tenant
and held by Landlord without liability for interest (unless required by Law) as
security for the performance of Tenant’s obligations.  The Security Deposit is not an advance
payment of Rent or a measure of damages. 
Landlord may use all or a portion of the Security Deposit to satisfy
past due Rent or to cure any Default (defined in Section 18) by Tenant, or
to satisfy any other loss or damage resulting from Tenant’s Default as provided
in Section 19.  If Landlord uses any
portion of the Security Deposit, Tenant shall, within 5 days after demand,
restore the Security Deposit to its original amount. Landlord shall return any
unapplied portion of the Security Deposit to Tenant within 45 days after the
later to occur of: (a) determination of the final Rent due from Tenant; or
(b) the later to occur of the Termination Date or the date Tenant
surrenders the Premises to Landlord in compliance with Section 25.
Landlord may assign the Security Deposit to a successor or transferee and,
following the assignment, Landlord shall have no further liability for the
return of the Security Deposit. Landlord shall not be required to keep the
Security Deposit separate from its other accounts. Tenant hereby waives the
provisions of Section 1950.7 of the California Civil Code, or any similar
or successor Laws now or hereinafter in effect.


 


7.     Building Services.


 


7.01  Landlord shall furnish Tenant with the
following services: (a) water for use in the Base Building lavatories; (b) customary
heat and air conditioning in season during Building Service Hours, although
Tenant shall have the right to receive HVAC service during hours other than
Building Service Hours by paying Landlord’s then standard charge for additional
HVAC service and providing such prior notice as is reasonably specified by
Landlord. As of the date hereof, Landlord’s charge for after hours heating and
air conditioning service is $106.00
per hour, for each full floor or partial floor for which Tenant requests such service,
subject to change from time to time. The minimum period of time for which
Tenant may request after hours HVAC service is 4 hours; provided, however, the
minimum time period shall be 2 hours if the requested after hours HVAC service
is immediately adjacent to Building Service Hours (for example, if Tenant
requests after hours HVAC service for Saturday commencing at 1:00 p.m. then the
minimum time period shall be 1 hour but if Tenant requests after hours HVAC
service for Saturday commencing at 4:00 p.m. then the minimum time period shall
be 4 hours).  Landlord agrees that any
increases in such charge shall be limited to increases in Landlord’s actual
costs of supplying the after-hours heating and air conditioning service and
shall not include any increases in the administrative or labor charge. If
Tenant requires heat or air conditioning during hours other than Building
Service Hours, charges for such services will be prorated by Landlord between
each requesting user-tenant (if more than one tenant in the same service zone
requests additional heat or air conditioning at the same time);
(c) standard janitorial service on Business Days; (d) elevator
service; (e) electricity in accordance with the terms and conditions in
Section 7.02; (f) access to the Building for Tenant and its employees
24 hours per day/7 days per week, subject to the terms of this Lease and such
protective services or monitoring systems, if any, as Landlord may reasonably
impose, including, without limitation, sign-in procedures and/or presentation
of identification cards; and (g) such other services as Landlord
reasonably determines are necessary or appropriate for the Property.


 


7.02  Electricity used by Tenant in the Premises
shall be paid for by Tenant through inclusion in Expenses (except as provided
for excess usage). Without the consent of Landlord, Tenant’s use of electrical
service shall not exceed, either in voltage, rated capacity, use beyond
Building Service Hours or overall load, the electrical standard for the
Building.  For purposes 


 


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hereof, the “electrical standard” for the
Building shall mean 6 watts per
usable square foot of the Premises for lighting and for miscellaneous
receptacles. Landlord shall have the right to measure electrical usage by
commonly accepted methods, including the installation of measuring devices such
as submeters and check meters.  If it is
determined that Tenant is using excess electricity, Tenant shall pay Landlord
Additional Rent for the cost of such excess electrical usage and for the cost
of purchasing and installing the measuring device(s).


 


7.03  Landlord’s failure to furnish, or any
interruption, diminishment or termination of services due to the application of
Laws, the failure of any equipment, the performance of repairs, improvements or
alterations, utility interruptions or the occurrence of an event of Force
Majeure (defined in Section 26.03) (collectively a “Service Failure”) shall not render Landlord
liable to Tenant, constitute a constructive eviction of Tenant, give rise to an
abatement of Rent, nor relieve Tenant from the obligation to fulfill any
covenant or agreement. However, if the Premises, or a material portion of the
Premises, are made untenantable for a period in excess of 3 consecutive
Business Days as a result of a Service Failure that is reasonably within the
control of Landlord to correct, then Tenant, as its sole remedy, shall be
entitled to receive an abatement of Rent payable hereunder during the period
beginning on the 4th consecutive Business Day of the Service Failure
and ending on the day the service has been restored.  If the entire Premises have not been rendered
untenantable by the Service Failure, the amount of abatement shall be equitably
prorated.


 


8.     Leasehold Improvements.


 


All improvements in and to
the Premises, including any Alterations (defined in Section 9.03)
(collectively, “Leasehold Improvements”)
shall remain upon the Premises at the end of the Term without compensation to
Tenant, provided that Tenant, at its expense, in compliance with the National
Electric Code or other applicable Law, shall remove any Cable (defined in
Section 9.01 below).  In addition,
Landlord, by written notice to Tenant at least 30 days prior to the Termination
Date, may require Tenant, at its expense, to remove any Landlord Work or
Alterations that, in Landlord’s reasonable judgment, are of a nature that would
require removal and repair costs that are materially in excess of the removal
and repair costs associated with standard office improvements (the Cable and
such other items collectively are referred to as “Required Removables”). 
Required Removables shall include, without limitation, internal
stairways, raised floors, personal baths and showers, vaults, rolling file
systems and structural alterations and modifications. The Required Removables
shall be removed by Tenant before the Termination Date. Tenant shall repair
damage caused by the installation or removal of Required Removables.  If Tenant fails to perform its obligations in
a timely manner, Landlord may perform such work at Tenant’s expense. At the
time Tenant requests approval for a proposed Alteration, including any Initial
Alterations or Landlord Work, as such terms may be defined in the Work Letter
attached as Exhibit C,
Landlord shall advise Tenant whether the Alteration, including any Initial
Alterations or Landlord Work, or any portion thereof, is a Required
Removable.  Within 10 days after receipt
of Tenant’s request, Landlord shall advise Tenant in writing as to which
portions of the alteration or other improvements are Required Removables.
Notwithstanding the foregoing, Tenant shall
not be required to remove any portion of the Landlord Work shown on
the Plans as of the date of this Lease, as such terms are defined in Exhibit C, and Tenant shall not be required to remove Cable from
the Temporary Space (as defined in Section III of Exhibit F).


 


9.     Repairs and Alterations.


 


9.01  Tenant shall periodically inspect the
Premises to identify any conditions that are dangerous or in need of
maintenance or repair.  Tenant shall
promptly provide Landlord with notice of any such conditions. Tenant shall, at
its sole cost and expense, perform all maintenance and repairs to the Premises
that are not Landlord’s express responsibility under this Lease, and keep the
Premises in good condition and repair, reasonable wear and tear excepted and
damage by Casualty (defined in and subject to the terms of Section 16)
excepted. Tenant’s repair and maintenance obligations include, without limitation,
repairs to: (a) floor covering; (b) interior partitions;
(c) doors; (d) the interior side of demising walls;
(e) electronic, fiber, phone and data cabling and related equipment that is installed by or for the exclusive
benefit of Tenant (collectively, “Cable”);
(f) supplemental air conditioning units, kitchens, including hot water
heaters, plumbing, and similar facilities exclusively serving Tenant; and
(g) Alterations.  Subject to the
terms of Section 15 below, to the extent Landlord is not reimbursed by
insurance proceeds, Tenant shall reimburse Landlord for the cost of repairing
damage to the Building caused by the acts of Tenant, Tenant Related Parties and
their respective contractors and vendors. 
If Tenant fails to make any repairs to the Premises for more than 15
days after notice from Landlord (although notice shall not be required in an
emergency), Landlord may make the repairs, and Tenant shall pay the reasonable
cost of the repairs, together with an administrative charge in an amount equal
to 7% of the cost of the 


 


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repairs. Notwithstanding
the foregoing, if the repair to be performed by Tenant cannot reasonably be
completed within 15 days after Landlord’s notice to Tenant, Landlord shall not
exercise its right to make such repair on Tenant’s behalf so long as Tenant
commences such repair within 5 days after notice from Landlord and is
diligently pursuing the same to completion.


 


9.02  Landlord shall keep and maintain in good
repair and working order and perform maintenance upon the: (a) structural
elements of the Building; (b) mechanical (including HVAC), electrical,
plumbing and fire/life safety systems serving the Building in general;
(c) Common Areas; (d) roof of the Building; (e) exterior windows
of the Building; and (f) elevators serving the Building. Landlord shall
promptly make repairs for which Landlord is responsible.  Landlord shall promptly make repairs for
which Landlord is responsible.  Tenant
hereby waives any and all rights under and benefits of subsection 1 of
Section 1932, and Sections 1941 and 1942 of the California Civil
Code, or any similar or successor Laws now or hereinafter in effect.


 


9.03  Tenant shall not make alterations, repairs,
additions or improvements or install any Cable (collectively referred to as “Alterations”) without first obtaining the
written consent of Landlord in each instance, which consent shall not be
unreasonably withheld, conditioned or delayed. However, Landlord’s consent
shall not be required for any Alteration that satisfies all of the following
criteria (a “Cosmetic Alteration”):  (a) is of a cosmetic nature such as
painting, wallpapering, hanging pictures and installing carpeting; (b) is
not visible from the exterior of the Premises or Building; (c) will not
affect the Base Building; and (d) does not require work to be performed
inside the walls or above the ceiling of the Premises.  Cosmetic Alterations shall be subject to all
the other provisions of this Section 9.03. 
Prior to starting work, Tenant shall furnish Landlord with plans and
specifications; names of contractors reasonably acceptable to Landlord
(provided that Landlord may designate specific contractors with respect to Base
Building so long as their fees are competitive with other comparably qualified
contractors); required permits and approvals; evidence of contractor’s and
subcontractor’s insurance in amounts reasonably required by Landlord and naming
Landlord as an additional insured. 
Changes to the plans and specifications must also be submitted to
Landlord for its approval. Alterations shall be constructed in a good and
workmanlike manner using materials of a quality reasonably approved by
Landlord. Tenant shall reimburse Landlord for any reasonable sums paid by
Landlord for third party examination of Tenant’s plans for non-Cosmetic
Alterations.  In addition, Tenant shall
pay Landlord a fee for Landlord’s oversight and coordination of any
non-Cosmetic Alterations equal to 3% of the cost of the non-Cosmetic
Alterations.  Upon completion, Tenant
shall furnish “as-built” plans for non-Cosmetic Alterations, completion
affidavits and full and final waivers of lien. Landlord’s approval of an
Alteration shall not be deemed a representation by Landlord that the Alteration
complies with Law.


 


10.  Entry by Landlord.


 


Landlord may enter the
Premises to inspect, show (during the last 9 months of the Term only or anytime
during an uncured Default by Tenant) or clean the Premises or to perform or
facilitate the performance of repairs, alterations or additions to the Premises
or any portion of the Building.  Except
in emergencies or to provide Building services, Landlord shall provide Tenant
with reasonable prior verbal notice of entry and shall use reasonable efforts
to minimize any interference with Tenant’s use of the Premises. Notwithstanding
the foregoing, except in emergencies, Landlord shall provide Tenant with at
least 24 hours’ prior notice of entry into the Premises, which may be given
orally to the entity occupying the Premises, and Tenant shall be entitled to
have an employee of Tenant accompany the person(s) entering the Premises.  If, however, Tenant does not make an employee
available in the Premises at the time indicated in such a notice or at such
other time as may be mutually agreed upon by Landlord and Tenant, then
(i) if the entry is for the purpose of performing work or providing
services which have been requested by Tenant and would not otherwise be
performed or provided by Landlord, Landlord shall not enter the Premises (unless
Tenant otherwise agrees), but (ii) if the entry is for another purpose
permitted by this Section, Landlord may enter the Premises. If reasonably
necessary, Landlord may temporarily close all or a portion of the Premises to
perform repairs, alterations and additions. 
However, except in emergencies, Landlord will not close the Premises if
the work can reasonably be completed on weekends and after Building Service
Hours.  Entry by Landlord shall not
constitute a constructive eviction or entitle Tenant to an abatement or
reduction of Rent except as otherwise
provided in this Lease.


 


11.  Assignment and Subletting.


 


11.01  Except in connection with a Permitted
Transfer (defined in Section 11.04), Tenant shall not assign, sublease,
transfer or encumber any interest in this Lease or allow any third party to use
any portion of the Premises (collectively or individually, a “Transfer”) without the prior written
consent of Landlord, which consent shall not be unreasonably withheld,
conditioned 


 


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or delayed if Landlord does not exercise its
recapture rights under Section 11.02. 
If the entity(ies) which directly or indirectly controls the voting
shares/rights of Tenant changes at any time, such change of ownership or control
shall constitute a Transfer unless Tenant is an entity whose outstanding stock
is listed on a recognized securities exchange or if at least 80% of its voting
stock is owned by another entity, the voting stock of which is so listed. The
foregoing also shall not apply to the infusion of additional equity capital in
Tenant or an initial public offering of equity securities of Tenant under the
Securities Act of 1933, as amended, which results in Tenant’s stock being
traded on a national securities exchange, including, but not limited to, the
NYSE, the NASDAQ Stock Market or the NASDAQ Small Cap Market System. Tenant
hereby waives the provisions of Section 1995.310 of the California Civil
Code, or any similar or successor Laws, now or hereinafter in effect, and all
other remedies, including, without limitation, any right at law or equity to
terminate this Lease, on its own behalf and, to the extent permitted under all
applicable Laws, on behalf of the proposed transferee.  Any Transfer in violation of this Section
shall, at Landlord’s option, be deemed a Default by Tenant as described in
Section 18, and shall be voidable by Landlord.  In no event shall any Transfer, including a
Permitted Transfer, release or relieve Tenant from any obligation under this
Lease.


 


11.02  Tenant shall provide Landlord with financial
statements for the proposed transferee, a fully executed copy of the proposed
assignment, sublease or other Transfer documentation and such other information
as Landlord may reasonably request. Within 15 Business Days after receipt of
the required information and documentation, Landlord shall either:
(a) consent to the Transfer by execution of a consent agreement in a form
reasonably designated by Landlord; (b) reasonably refuse to consent to the
Transfer in writing; or (c) in the event of an assignment of this Lease or
subletting of all or any portion of the Premises for more than 75% of the
remaining Term of this Lease (excluding unexercised options), recapture the
portion of the Premises that Tenant is proposing to Transfer.  If Landlord exercises its right to recapture,
this Lease shall automatically be amended (or terminated if the entire Premises
is being assigned or sublet) to delete the applicable portion of the Premises
effective on the proposed effective date of the Transfer, although Landlord may
require Tenant to execute a reasonable amendment or other document reflecting
such reduction or termination. Notwithstanding the above, Tenant, within 5 days
after receipt of Landlord’s notice of intent to terminate, may withdraw its
request for consent to the Transfer.  In
that event, Landlord’s election to terminate the Lease shall be null and void
and of no force and effect. Tenant shall pay Landlord a review fee of $1,000.00
for Landlord’s review of any Permitted Transfer or requested Transfer.


 


11.03  Tenant shall pay Landlord 50% of all rent and
other consideration which Tenant receives as a result of a Transfer that is in
excess of the Rent payable to Landlord for the portion of the Premises and Term
covered by the Transfer. The phrase “other consideration” used herein shall
mean all monies, property and other consideration paid or payable to Tenant for
the Transfer and for all property in the Premises included in such Transfer,
including, without limitation, fixtures, improvements of Tenant, furniture,
equipment and furnishings, but excluding Tenant’s Property.  For purposes of this Section 11.03 only,
the term “Tenant’s Property” shall be as defined in Section 14 of this Lease
but shall also be deemed to include goodwill and any other intangible personal
property associated with Tenant’s business, but in no event shall it be deemed
to include Tenant’s interest under this Lease. Tenant shall
pay Landlord for Landlord’s share of the excess within 30 days after Tenant’s
receipt of the excess. Tenant may deduct from the excess, on a straight line
basis, all reasonable and customary expenses directly incurred by Tenant
attributable to the Transfer, including brokerage fees, legal fees,
construction costs, and Landlord’s review fee. If Tenant is in
Default, Landlord may require that all sublease payments be made directly to
Landlord, in which case Tenant shall receive a credit against Rent in the
amount of Tenant’s share of payments received by Landlord.


 


11.04 Tenant may assign this
Lease to a successor to Tenant by purchase, merger, consolidation or
reorganization (an “Ownership Change”)
or assign this Lease or sublet all or a portion of the Premises to an Affiliate
without the consent of Landlord, provided that all of the following conditions
are satisfied (a “Permitted Transfer”):  (a) Tenant is not in Default;
(b) in the event of an Ownership Change, Tenant’s successor shall own
substantially all of the assets of Tenant and have a net worth which is at least
equal to Tenant’s net worth as of the day prior to the proposed Ownership
Change, or in the event of a Transfer to an Affiliate (defined below), Tenant
continues to have a net worth equal to or greater than Tenant’s net worth at
the date of this Lease or the Affiliate has a net worth equal to Tenant’s net
worth at the date of this Lease; (c) the Permitted Use does not allow the
Premises to be used for retail purposes; and (d) Tenant shall give
Landlord written notice at least 15 Business Days prior to the effective date
of the Permitted Transfer (provided that, if prohibited by confidentiality in
connection with a proposed Ownership Change, then Tenant shall give Landlord
written notice within 10 days after the effective date of the proposed
Ownership Change). Tenant’s notice to Landlord shall include information and
documentation evidencing the Permitted Transfer and showing that 


 


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each of the above conditions has been
satisfied.  If requested by Landlord,
Tenant’s successor shall sign a commercially reasonable form of assumption
agreement.  “Affiliate” shall mean an entity controlled by, controlling or
under common control with Tenant.


 


11.05  Notwithstanding anything to the contrary
contained in this Lease, Tenant may, without the consent of Landlord, sublet
one (1) or more offices to subtenant(s) within the Premises (the “Pre-Approved Transfers”), provided only that (a) Tenant does
not separately demise such space and the subtenants in each of such office(s)
shall utilize with Tenant and any other parties under Pre-Approved Transfers
one (1) common entry way to the Premises as well as possibly utilizing certain
shared central services, such as reception, photocopying and the like; (b) the
proposed transferee operates the business in the Premises for the Permitted
Use, not in violation of any of the terms and conditions of this Lease or any
of the rules and regulations of the Building, and for no other purpose; (c) in
no event shall any such Transfer release or relieve Tenant from any of its
obligations under this Lease; (d) the Pre-Approved Transfers shall not occupy,
in the aggregate, more than 10% of the rentable area in the Premises; and (e)
the proposed subtenant’s business is professional and suitable for the Building
considering the business of other tenants and the Building’s prestige and does
not violate any exclusive rights granted to other tenants of the Building. At
least 3 Business Days prior to the effective date of any Pre-Approved Transfer,
Tenant shall give Landlord written notice of such Pre-Approved Transfer.  In addition, Tenant hereby agrees to
indemnify Landlord for the acts and omissions of any Pre-Approved Transfers
(including such Pre-Approved Transfer’s agents, employees, contractors,
customers and invitees) in accordance with the terms and conditions of Section
13 of this Lease and to cause any insurance to be maintained by Tenant under
this Lease to be extended to cover the acts and omissions of the Pre-Approved
Transfers (including such Pre-Approved Transfer’s agents, employees,
contractors, customers and invitees) while in the Building.


 


12.  Liens.


 


Tenant shall not permit
mechanics’ or other liens to be placed upon the Property, Premises or Tenant’s
leasehold interest in connection with any work or service done or purportedly
done by or for the benefit of Tenant or its transferees.  Tenant shall give Landlord notice at least 15
days prior to the commencement of any work in the Premises to afford Landlord
the opportunity, where applicable, to post and record notices of
non-responsibility.  Tenant, within 10
days of notice from Landlord, shall fully discharge any lien by settlement, by
bonding or by insuring over the lien in the manner prescribed by the applicable
lien Law and, if Tenant fails to do so, Tenant shall be deemed in Default under
this Lease and, in addition to any other remedies available to Landlord as a
result of such Default by Tenant, Landlord, at its option, may bond, insure over or otherwise
discharge the lien.  Tenant shall
reimburse Landlord for any amount paid by Landlord, including, without
limitation, reasonable attorneys’ fees.


 


13.  Indemnity and Waiver of
Claims.


 


Except to the extent caused
by the negligence or willful misconduct of Landlord or any Landlord Related
Parties (defined below), Tenant shall indemnify, defend and hold Landlord and
Landlord Related Parties harmless against and from all liabilities,
obligations, damages, penalties, claims, actions, costs, charges and expenses,
including, without limitation, reasonable attorneys’ fees and other
professional fees (if and to the extent permitted by Law) (collectively
referred to as “Losses”), which
may be imposed upon, incurred by or asserted against Landlord or any of the
Landlord Related Parties by any third party and arising out of or in connection
with any damage or injury occurring in the Premises or any acts or omissions
(including violations of Law) of Tenant, the Tenant Related Parties (defined
below) or any of Tenant’s transferees, contractors or licensees.
Notwithstanding the foregoing, except as provided in Section 15 to the
contrary, Tenant shall not be required to waive any claims against Landlord
(other than for loss or damage to Tenant’s business) where such loss or damage
is due to the negligence or willful misconduct of Landlord or any Landlord
Related Parties.  Nothing herein shall be
construed as to diminish the repair and maintenance obligations of Landlord
contained elsewhere in this Lease. Except
to the extent caused by the negligence or willful misconduct of Tenant or any
Tenant Related Parties, Landlord shall indemnify, defend and hold Tenant, its
trustees, members, principals, beneficiaries, partners, officers, directors,
employees and agents (“Tenant Related Parties”)
harmless against and from all Losses which may be imposed upon, incurred by or
asserted against Tenant or any of the Tenant Related Parties by any third party
and arising out of or in connection with the acts or omissions (including
violations of Law) of Landlord or the Landlord Related Parties.  Tenant hereby waives all claims against and
releases Landlord and its trustees, members, principals, beneficiaries,
partners, officers, directors, employees, Mortgagees (defined in Section 23)
and agents (the “Landlord Related Parties”)
from all claims for any injury to or death of persons, damage to 


 


9





















 


property or business loss in any manner
related to (a) Force Majeure, (b) acts of third parties, (c) the
bursting or leaking of any tank, water closet, drain or other pipe,
(d) the inadequacy or failure of any security or protective services,
personnel or equipment, or (e) any matter not within the reasonable
control of Landlord.


 


14.  Insurance.


 


Tenant shall maintain the
following insurance (“Tenant’s Insurance”):  (a) Commercial General Liability
Insurance applicable to the Premises and its appurtenances providing, on an
occurrence basis, a minimum combined single limit of $2,000,000.00; (b) 
Property/Business Interruption Insurance written on an All Risk or Special
Cause of Loss Form, including earthquake
sprinkler leakage, at replacement cost value and with a replacement cost
endorsement covering all of Tenant’s business and trade fixtures, equipment,
movable partitions, furniture, merchandise and other personal property within
the Premises (“Tenant’s Property”)
and any Alterations performed by or for the benefit of Tenant; (c) Workers’
Compensation Insurance in amounts required by Law; and (d) Employers
Liability Coverage of at least $1,000,000.00 per occurrence.  Any company writing Tenant’s Insurance shall
have an A.M. Best rating of not less than A-VIII.  All Commercial General Liability Insurance
policies shall name as additional insureds Landlord (or its successors and
assignees), the managing agent for the Building (or any successor), EOP
Operating Limited Partnership, Equity Office Properties Trust and their
respective members, principals, beneficiaries, partners, officers, directors,
employees, and agents, and other designees of Landlord and its successors as
the interest of such designees shall appear. 
In addition, Landlord shall be named as a loss payee with respect to
Property/Business Interruption Insurance on the Leasehold Improvements.  All policies of Tenant’s Insurance shall
contain endorsements that the insurer(s) shall give Landlord and its designees
at least 30 days’ advance written notice of any cancellation, termination,
material change or lapse of insurance. Tenant shall provide Landlord with a
certificate of insurance evidencing Tenant’s Insurance prior to the earlier to
occur of the Commencement Date or the date Tenant is provided with possession
of the Premises, and thereafter as necessary to assure that Landlord always has
current certificates evidencing Tenant’s Insurance. So long as the same is
available at commercially reasonable rates, Landlord shall maintain so called
All Risk property insurance on the Building at replacement cost value as
reasonably estimated by Landlord, together with such other insurance coverage
as Landlord, in its reasonable judgment, may elect to maintain.


 


15.  Subrogation.


 


Landlord and Tenant hereby
waive and shall cause their respective insurance carriers to waive any and all
rights of recovery, claims, actions or causes of action against the other for
any loss or damage with respect to Tenant’s Property, Leasehold Improvements,
the Building, the Premises, or any contents thereof, including rights, claims,
actions and causes of action based on negligence, which loss or damage is (or would
have been, had the insurance required by this Lease been carried) covered by
insurance. For the purposes of this waiver, any deductible with respect to a
party’s insurance shall be deemed covered by and recoverable by such party
under valid and collectable policies of insurance.


 


16.  Casualty Damage.


 


16.01  If all or any portion of the Premises becomes
untenantable by fire or other casualty to the Premises (collectively a “Casualty”), Landlord, with reasonable
promptness, shall cause a general contractor selected by Landlord to provide
Landlord and Tenant with a written estimate of the amount of time required
using standard working methods to Substantially Complete the repair and
restoration of the Premises and any Common Areas necessary to provide access to
the Premises (“Completion Estimate”).
If the Completion Estimate indicates that the Premises or any Common Areas
necessary to provide access to the Premises cannot be made tenantable within
270 days from the date of the Casualty, then either party shall have the right
to terminate this Lease upon written notice to the other within 10 days after
receipt of the Completion Estimate. Tenant, however, shall not have the right
to terminate this Lease if the Casualty was caused by the negligence or intentional
misconduct of Tenant or any Tenant Related Parties. In addition, Landlord, by
notice to Tenant within 90 days after the date of the Casualty, shall have the
right to terminate this Lease if: 
(1) the Premises have been materially damaged and there is less
than 1 year of the Term remaining on the date of the Casualty; (2) any
Mortgagee requires that the insurance proceeds be applied to the payment of the
mortgage debt; or (3) a material uninsured loss to the Building or
Premises occurs. Tenant shall have the right to terminate this Lease if:  (a) a substantial portion of the
Premises has been damaged by Casualty and such damage cannot reasonably be
repaired within 60 days after receipt of the Completion Estimate;
(b) there is less than 1 year of the Term remaining on the date of the
Casualty; (c) the Casualty 


 


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was not caused by the negligence or willful
misconduct of Tenant or its agents, employees or contractors; and
(d) Tenant provides Landlord with written notice of its intent to
terminate within 30 days after the date of Tenant’s receipt of the Completion
Estimate.


 


16.02  If this Lease is not terminated, Landlord
shall promptly and diligently, subject to reasonable delays for insurance
adjustment or other matters beyond Landlord’s reasonable control, restore the
Premises and Common Areas. Such restoration shall be to substantially the same
condition that existed prior to the Casualty, except for modifications required
by Law or any other modifications to the Common Areas deemed desirable by
Landlord.  Upon notice from Landlord,
Tenant shall assign or endorse over to Landlord (or to any party designated by
Landlord) all property insurance proceeds payable to Tenant under Tenant’s
Insurance with respect to any Alterations performed by or for the benefit of
Tenant; provided if the estimated cost to repair such Alterations exceeds the
amount of insurance proceeds received by Landlord from Tenant’s insurance
carrier, the excess cost of such repairs shall be paid by Tenant to Landlord
prior to Landlord’s commencement of repairs. 
Within 15 days of demand, Tenant shall also pay Landlord for any
additional excess costs that are determined during the performance of the
repairs. Notwithstanding anything to the contrary contained herein, in no event
shall Landlord be required to spend more than the proceeds received by Landlord
in connection with such Casualty (collectively, the “Casualty Proceeds”) in order to perform the repair and
restoration required herein.  However, if
Landlord does not have sufficient Casualty Proceeds to substantially complete
the restoration required herein, and if Landlord elects not to fund any
shortfall, Landlord shall so notify Tenant (the “Insufficient Proceeds Notice”), and, provided Tenant has
maintained the insurance required by Section 14 to be maintained by
Tenant, the proceeds from the insurance required to be maintained by Tenant
with respect to the Leasehold Improvements has been paid to Landlord as part of
the Casualty Proceeds, and Tenant has paid to Landlord any deficiency (“Tenant’s Deficiency Payment”) between the
cost to repair the Leasehold Improvements and the amount received by Landlord
under Tenant’s insurance in connection with such repair, then Tenant, within 10
days after receipt of the Insufficient Proceeds Notice, shall have the right to
terminate this Lease by the giving of written notice to Landlord.  If Tenant does not terminate the Lease, then
Landlord shall restore the Leasehold Improvements and other portions of the
Building affected by the Casualty to the extent possible using the Casualty
Proceeds made available to Landlord for such purpose. Landlord shall not be
liable for any inconvenience to Tenant, or injury to Tenant’s business
resulting in any way from the Casualty or the repair thereof.  Provided that Tenant is not in Default,
during any period of time that all or a material portion of the Premises is
rendered untenantable as a result of a Casualty, the Rent shall abate for the
portion of the Premises that is untenantable and not used by Tenant.


 


16.03  If Tenant was entitled to but elected not to
exercise its right to terminate the Lease and Landlord does not substantially
complete the repair and restoration of the Premises within 1 month after the
expiration of the estimated period of time set forth in the Completion
Estimate, which period shall be extended to the extent of any Reconstruction
Delays (defined below), then Tenant may terminate this Lease by written notice
to Landlord within 15 days after the expiration of such period, as the same may
be extended.  For purposes of this Lease,
the term “Reconstruction Delays”
shall mean any delays caused by Tenant.


 


16.04  The
provisions of this Lease, including this Section 16, constitute an express
agreement between Landlord and Tenant with respect to any and all damage to, or
destruction of, all or any part of the Premises or the Property, and any Laws,
including, without limitation, Sections 1932(2) and 1933(4) of the
California Civil Code, with respect to any rights or obligations concerning
damage or destruction in the absence of an express agreement between the
parties, and any similar or successor Laws now or hereinafter in effect, shall
have no application to this Lease or any damage or destruction to all or any
part of the Premises or the Property.


 


17.  Condemnation.


 


Either party may terminate
this Lease if any material part of the Premises is taken or condemned for any
public or quasi-public use under Law, by eminent domain or private purchase in
lieu thereof (a “Taking”).  Landlord shall also have the right to
terminate this Lease if there is a Taking of any portion of the Building or
Property which would have a material adverse effect on Landlord’s ability to
profitably operate the remainder of the Building. If Landlord has the right to
terminate this Lease pursuant to this Section 17, Landlord agrees to exercise
such right in a nondiscriminatory fashion among tenants in the Building.  Consideration of the following factors in
arriving at its decision shall not be deemed discriminatory: Length of term
remaining on the Lease, time needed to repair and restore, costs of repair and
restoration not covered by condemnation proceeds, Landlord’s plans to repair
and restore Common Areas 


 


11





















 


serving the Premises, Landlord’s plans for
repair and restoration of the Building, and other relevant factors of Landlord’s
decision as long as they are applied to Tenant in the same manner as other
tenants. The terminating party shall provide written notice of termination to
the other party within 45 days after it first receives notice of the
Taking.  The termination shall be
effective as of the effective date of any order granting possession to, or
vesting legal title in, the condemning authority.  If this Lease is not terminated, Base Rent
and Tenant’s Pro Rata Share shall be appropriately adjusted to account for any
reduction in the square footage of the Building or Premises. All compensation
awarded for a Taking shall be the property of Landlord.  The right to receive compensation or proceeds
are expressly waived by Tenant, however, Tenant may file a separate claim for
Tenant’s Property and Tenant’s reasonable relocation expenses, provided the
filing of the claim does not diminish the amount of Landlord’s award.  If only a part of the Premises is subject to
a Taking and this Lease is not terminated, Landlord, with reasonable diligence,
will restore the remaining portion of the Premises as nearly as practicable to
the condition immediately prior to the Taking. 
Tenant hereby waives any and all rights it might otherwise have pursuant
to Section 1265.130 of the California Code of Civil Procedure, or any
similar or successor Laws.


 


18.  Events of Default.


 


In addition to any other
default specifically described in this Lease, each of the following occurrences
shall be a “Default”:
(a) Tenant’s failure to pay any portion of Rent when due, if the failure
continues for 5 Business Days after written notice to Tenant (“Monetary Default”); (b) Tenant’s
failure (other than a Monetary Default) to comply with any term, provision,
condition or covenant of this Lease, if the failure is not cured within 20 days
after written notice to Tenant provided, however, if Tenant’s failure to comply
cannot reasonably be cured within 20 days, Tenant shall be allowed additional
time (not to exceed 90 days) as is reasonably necessary to cure the failure so
long as Tenant begins the cure within 20 days and diligently pursues the cure
to completion; (c) Tenant permits a Transfer without Landlord’s required
approval or otherwise in violation of Section 11 of this Lease;
(d) Tenant or any Guarantor becomes insolvent, makes a transfer in fraud
of creditors, makes an assignment for the benefit of creditors, admits in
writing its inability to pay its debts when due or forfeits or loses its right
to conduct business; (e) the leasehold estate is taken by process or
operation of Law; (f) in the case of any ground floor or retail Tenant,
Tenant does not take possession of or abandons or vacates all or any portion of
the Premises; or (g) Tenant is in default beyond any notice and cure
period under any other lease or agreement with Landlord at the Building or
Property. All notices sent under this Section shall be in satisfaction of, and
not in addition to, notice required by Law.


 


19.  Remedies.


 


19.01  Upon the occurrence of any Default under this
Lease, whether enumerated in Section 18 or not, Landlord shall have the
option to pursue any one or more of the following remedies without any notice
(except as expressly prescribed herein) or demand whatsoever (and without
limiting the generality of the foregoing, Tenant hereby specifically waives
notice and demand for payment of Rent or other obligations, except for those
notices specifically required pursuant to the terms of Section 18 or this
Section 19, and waives any and all other notices or demand requirements
imposed by applicable law):


 


(a)           Terminate this Lease and Tenant’s right to
possession of the Premises and recover from Tenant an award of damages equal to
the sum of the following:


 


(i)            The Worth at the Time of Award of the unpaid
Rent which had been earned at the time of termination;


 


(ii)           The Worth at the Time of Award of the amount
by which the unpaid Rent which would have been earned after termination until
the time of award exceeds the amount of such Rent loss that Tenant
affirmatively proves could have been reasonably avoided;


 


(iii)          The Worth at the Time
of Award of the amount by which the unpaid Rent for the balance of the Term
after the time of award exceeds the amount of such Rent loss that Tenant
affirmatively proves could be reasonably avoided;


 


(iv)          Any other amount necessary to compensate
Landlord for all the detriment either proximately caused by Tenant’s failure to
perform Tenant’s obligations under this Lease or which in the ordinary course
of things would be likely to result therefrom; and


 


12





















 


(v)           All such other amounts in addition to or in
lieu of the foregoing as may be permitted from time to time under applicable
law.


 


The “Worth at the Time of Award” of the amounts
referred to in parts (i) and (ii) above, shall be computed by allowing
interest at the lesser of a per annum rate equal to: (A) the greatest
per annum rate of interest permitted from time to time under applicable law, or
(B) the Prime Rate plus 5%.  For
purposes hereof, the “Prime Rate”
shall be the per annum interest rate publicly announced as its prime or base
rate by a federally insured bank selected by Landlord in the State of
California.  The “Worth at the Time of Award” of the amount
referred to in part (iii), above, shall be computed by discounting such amount
at the discount rate of the Federal Reserve Bank of San Francisco at the time of
award plus 1%;


 


(b)           Employ the remedy described in California
Civil Code § 1951.4 (Landlord may continue this Lease in effect after Tenant’s
breach and abandonment and recover Rent as it becomes due, if Tenant has the
right to sublet or assign, subject only to reasonable limitations); or


 


(c)           Notwithstanding Landlord’s exercise of the
remedy described in California Civil Code § 1951.4 in respect of an event or
events of default, at such time thereafter as Landlord may elect in writing, to
terminate this Lease and Tenant’s right to possession of the Premises and
recover an award of damages as provided above in Paragraph 19.01(a).


 


19.02  The subsequent acceptance of Rent hereunder
by Landlord shall not be deemed to be a waiver of any preceding breach by Tenant
of any term, covenant or condition of this Lease, other than the failure of
Tenant to pay the particular Rent so accepted, regardless of Landlord’s
knowledge of such preceding breach at the time of acceptance of such Rent.  No waiver by Landlord of any breach hereof
shall be effective unless such waiver is in writing and signed by Landlord.


 


19.03  TENANT
HEREBY WAIVES ANY AND ALL RIGHTS CONFERRED BY SECTION 3275 OF THE CIVIL CODE OF
CALIFORNIA AND BY SECTIONS 1174 (c) AND 1179 OF THE CODE OF CIVIL PROCEDURE OF
CALIFORNIA AND ANY AND ALL OTHER LAWS AND RULES OF LAW FROM TIME TO TIME IN
EFFECT DURING THE LEASE TERM PROVIDING THAT TENANT SHALL HAVE ANY RIGHT TO
REDEEM, REINSTATE OR RESTORE THIS LEASE FOLLOWING ITS TERMINATION BY REASON OF
TENANT’S BREACH. LANDLORD AND TENANT HEREBY WAIVE, TO THE FULLEST EXTENT
PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY LITIGATION ARISING OUT OF
OR RELATING TO THIS LEASE.


 


19.04  No right or remedy herein conferred upon or
reserved to Landlord is intended to be exclusive of any other right or remedy,
and each and every right and remedy shall be cumulative and in addition to any
other right or remedy given hereunder or now or hereafter existing by
agreement, applicable law or in equity. 
In addition to other remedies provided in this Lease, Landlord shall be
entitled, to the extent permitted by applicable law, to injunctive relief, or
to a decree compelling performance of any of the covenants, agreements,
conditions or provisions of this Lease, or to any other remedy allowed to
Landlord at law or in equity. 
Forbearance by Landlord to enforce one or more of the remedies herein
provided upon an event of default shall not be deemed or construed to
constitute a waiver of such default.


 


19.05  If Tenant is in Default of any of its
non-monetary obligations under the Lease, Landlord shall have the right to
perform such obligations.  Tenant shall
reimburse Landlord for the cost of such performance upon demand together with
an administrative charge equal to 5% of the cost of the work performed by
Landlord.


 


19.06  This Section 19 shall be enforceable to
the maximum extent such enforcement is not prohibited by applicable law, and
the unenforceability of any portion thereof shall not thereby render
unenforceable any other portion.


 


20.  Limitation of Liability.


 


NOTWITHSTANDING ANYTHING TO
THE CONTRARY CONTAINED IN THIS LEASE, THE LIABILITY OF LANDLORD (AND OF ANY
SUCCESSOR LANDLORD) SHALL BE LIMITED TO THE LESSER OF (A) THE INTEREST OF
LANDLORD IN THE PROPERTY, OR (B) THE EQUITY INTEREST LANDLORD WOULD HAVE
IN THE PROPERTY IF THE


 


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PROPERTY WERE ENCUMBERED BY THIRD PARTY DEBT
IN AN AMOUNT EQUAL TO 70% OF THE VALUE OF THE PROPERTY.  TENANT SHALL LOOK SOLELY TO LANDLORD’S
INTEREST IN THE PROPERTY FOR THE RECOVERY OF ANY JUDGMENT OR AWARD AGAINST
LANDLORD OR ANY LANDLORD RELATED PARTY. NEITHER LANDLORD NOR ANY LANDLORD
RELATED PARTY SHALL BE PERSONALLY LIABLE FOR ANY JUDGMENT OR DEFICIENCY, AND IN
NO EVENT SHALL LANDLORD OR ANY LANDLORD RELATED PARTY BE LIABLE TO TENANT FOR
ANY LOST PROFIT, DAMAGE TO OR LOSS OF BUSINESS OR ANY FORM OF SPECIAL, INDIRECT
OR CONSEQUENTIAL DAMAGE.  BEFORE FILING
SUIT FOR AN ALLEGED DEFAULT BY LANDLORD, TENANT SHALL GIVE LANDLORD AND THE
MORTGAGEE(S) WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES (DEFINED IN SECTION
23 BELOW), NOTICE AND REASONABLE TIME TO CURE THE ALLEGED DEFAULT. FOR PURPOSES
HEREOF, “INTEREST OF LANDLORD IN THE PROPERTY” SHALL INCLUDE RENTS DUE FROM
TENANTS, INSURANCE PROCEEDS, AND PROCEEDS FROM CONDEMNATION OR EMINENT DOMAIN
PROCEEDINGS (PRIOR TO THE DISTRIBUTION OF SAME TO ANY PARTNER OR SHAREHOLDER OF
LANDLORD OR ANY OTHER THIRD PARTY).


 


21.  Relocation.


 


Landlord, at its expense, at
any time before or during the Term, may relocate Tenant from the Premises to
space of reasonably comparable size and utility (“Relocation Space”) within the Building upon 60 days’ prior
written notice to Tenant, provided that the Relocation Space shall be located
on or above the 10th floor of the Building with similar views as the Premises.
The Relocation Space must contain similar finishes (subject to commercial
availability) and approximately the same Rentable Square Footage as the
Premises and approximately the same number and size of work stations, offices,
breakrooms and reception areas as are contained in the Premises as of the date
Tenant receives Landlord’s notice of relocation. From and after the date of the relocation, the Base Rent and Tenant’s
Pro Rata Share shall be adjusted based on the rentable square footage of the
Relocation Space, provided that the total monthly Base Rent for the Relocation
Space shall in no event exceed the total monthly Base Rent for the Premises
prior to the relocation, and Tenant’s Pro Rata Share for the Relocation Space
shall in no event exceed Tenant’s Pro Rata Share for the Premises prior to the
relocation.  Landlord shall pay Tenant’s
reasonable costs of relocation, including all costs for moving Tenant’s
furniture, equipment, supplies and other personal property, as well as the cost
of printing and distributing change of address notices to Tenant’s customers
and one month’s supply of stationery showing the new address. Landlord shall
also reimburse Tenant for the reasonable cost to install and connect
telecommunication and data cabling in the Relocation Space in the manner and to
the extent such cabling existed in the Premises prior to the relocation.


 


22.  Holding Over.


 


If Tenant fails to surrender
all or any part of the Premises at the termination of this Lease, occupancy of
the Premises after termination shall be that of a tenancy at sufferance.  Tenant’s occupancy shall be subject to all
the terms and provisions of this Lease, and Tenant shall pay an amount (on a
per month basis without reduction for partial months during the holdover) equal
to 150% of the sum of the Base Rent and Additional Rent due for the period
immediately preceding the holdover.  No
holdover by Tenant or payment by Tenant after the termination of this Lease
shall be construed to extend the Term or prevent Landlord from immediate
recovery of possession of the Premises by summary proceedings or otherwise. If
Landlord is unable to deliver possession of the Premises to a new tenant or to
perform improvements for a new tenant as a result of Tenant’s holdover and
Tenant fails to vacate the Premises within 15 days after notice from Landlord,
Tenant shall be liable for all damages that Landlord suffers from the holdover.


 


23.  Subordination to Mortgages;
Estoppel Certificate.


 


23.01  Tenant accepts this Lease subject and
subordinate to any mortgage(s), deed(s) of trust, ground lease(s) or other
lien(s) now or subsequently arising upon the Premises, the Building or the
Property, and to renewals, modifications, refinancings and extensions thereof
(collectively referred to as a “Mortgage”).
As of the date of this lease, there is no mortgage affecting the Property.  The party having the benefit of a Mortgage
shall be referred to as a “Mortgagee”.
This clause shall be self-operative, but upon request from a Mortgagee, Tenant
shall execute a commercially reasonable subordination agreement in favor of the
Mortgagee. As an alternative, a Mortgagee shall have the right at any time to
subordinate its Mortgage to this Lease. 
Upon request, Tenant, without charge, shall attorn to any successor to
Landlord’s interest in this Lease. 
Landlord and Tenant shall each, within 15 days after receipt of a
written 


 


14





















 


request from the other, execute and deliver a
commercially reasonable estoppel certificate to those parties as are reasonably
requested by the other (including a Mortgagee or prospective purchaser).
Without limitation, such estoppel certificate may include a certification as to
the status of this Lease, the existence of any defaults and the amount of Rent
that is due and payable.


 


23.02
Notwithstanding the foregoing in this Section to the contrary, as a condition
precedent to the future subordination of this Lease to a future Mortgage,
Landlord shall be required to provide Tenant with a non-disturbance,
subordination, and attornment agreement in favor of Tenant from any Mortgagee
who comes into existence after the Commencement Date.  Such non-disturbance, subordination, and
attornment agreement in favor of Tenant shall provide that, so long as Tenant
is paying the Rent due under the Lease and is not otherwise in default under
the Lease beyond any applicable cure period, its right to possession and the
other terms of the Lease shall remain in full force and effect.  Such non-disturbance, subordination, and
attornment agreement may include other commercially reasonable provisions in
favor of the Mortgagee, including, without limitation, additional time on
behalf of the Mortgagee to cure defaults of the Landlord and provide that (a) neither
Mortgagee nor any successor-in-interest shall be bound by (i) any payment
of the Base Rent, Additional Rent, or other sum due under this Lease for more
than 1 month in advance or (ii) any amendment or modification of the Lease
made without the express written consent of Mortgagee or any
successor-in-interest; (b) neither Mortgagee nor any successor-in-interest
will be liable for (i) any act or omission or warranties of any prior
landlord (including Landlord), (ii) the breach of any warranties or obligations
relating to construction of improvements on the Property or any tenant finish
work performed or to have been performed by any prior landlord (including
Landlord), or (iii) the return of any security deposit, except to the
extent such deposits have been received by Mortgagee; and (c) neither
Mortgagee nor any successor-in-interest shall be subject to any offsets or
defenses which Tenant might have against any prior landlord (including
Landlord).


 


23.03
As of the date hereof there are no mortgages or deeds of trust that constitute
a lien or charge on the whole or any portion of the Property.


 


24.  Notice.


 


All demands, approvals,
consents or notices (collectively referred to as a “notice”) shall be in writing and delivered by hand or sent by
registered or certified mail with return receipt requested or sent by overnight
or same day courier service at the party’s respective Notice Address(es) set
forth in Section 1.  Each notice
shall be deemed to have been received on the earlier to occur of actual delivery
or the date on which delivery is refused, or, if Tenant has vacated the
Premises or any other Notice Address of Tenant without providing a new Notice
Address, 3 days after notice is deposited in the U.S. mail or with a courier
service in the manner described above. 
Either party may, at any time, change its Notice Address (other than to
a post office box address) by giving the other party written notice of the new
address.


 


25.  Surrender of Premises.


 


At the termination of this
Lease or Tenant’s right of possession, Tenant shall remove Tenant’s Property
from the Premises, and quit and surrender the Premises to Landlord, broom
clean, and in good order, condition and repair, ordinary wear and tear and
damage which Landlord is obligated to repair hereunder excepted. If Tenant
fails to remove any of Tenant’s Property within 2 days after termination of
this Lease or Tenant’s right to possession, Landlord, at Tenant’s sole cost and
expense, shall be entitled (but not obligated) to remove and store Tenant’s
Property.  Landlord shall not be
responsible for the value, preservation or safekeeping of Tenant’s
Property.  Tenant shall pay Landlord,
upon demand, the expenses and storage charges incurred. If Tenant fails to
remove Tenant’s Property from the Premises or storage, within 30 days after
notice, Landlord may deem all or any part of Tenant’s Property to be abandoned
and title to Tenant’s Property shall vest in Landlord.


 


26.  Miscellaneous.


 


26.01  This Lease shall be interpreted and enforced
in accordance with the Laws of the state or commonwealth in which the Building
is located and Landlord and Tenant hereby irrevocably consent to the
jurisdiction and proper venue of such state or commonwealth.  If any term or provision of this Lease shall
to any extent be void or unenforceable, the remainder of this Lease shall not
be affected. If there is more than one Tenant or if Tenant is comprised of more
than one party or entity, the obligations imposed upon Tenant shall be joint
and several obligations of all the parties and entities, and requests or
demands from any one person or entity comprising Tenant shall be deemed to have
been made by all such persons or entities.


 


15





















 


Notices to any one person or entity shall be
deemed to have been given to all persons and entities. Tenant represents and
warrants to Landlord that each individual executing this Lease on behalf of
Tenant is authorized to do so on behalf of Tenant and that Tenant is not, and
the entities or individuals constituting Tenant or which may own or control
Tenant or which may be owned or controlled by Tenant are not, (i) in violation
of any laws relating to terrorism or money laundering, or (ii) among the
individuals or entities identified on any list compiled pursuant to Executive
Order 13224 for the purpose of identifying suspected terrorists or on the most
current list published by the U.S. Treasury Department Office of Foreign Assets
Control at its official website, http://www.treas.gov/ofac/tllsdn.pdf or any replacement website or other
replacement official publication of such list.


 


26.02  If either party institutes a suit against the
other for violation of or to enforce any covenant, term or condition of this
Lease, the prevailing party shall be entitled to reimbursement of all of its
costs and expenses, including, without limitation, reasonable attorneys’
fees.  Landlord and Tenant hereby waive
any right to trial by jury in any proceeding based upon a breach of this Lease.  Either party’s failure to declare a default
immediately upon its occurrence, or delay in taking action for a default, shall
not constitute a waiver of the default, nor shall it constitute an estoppel.


 


26.03  Whenever a period of time is prescribed for
the taking of an action by Landlord or Tenant (other than the payment of the
Security Deposit or Rent), the period of time for the performance of such
action shall be extended by the number of days that the performance is actually
delayed due to strikes, acts of God, shortages of labor or materials, war,
terrorist acts, civil disturbances and other causes beyond the reasonable
control of the performing party (“Force
Majeure”).


 


26.04  Landlord shall have the right to transfer and
assign, in whole or in part, all of its rights and obligations under this Lease
and in the Building and Property.  Upon
transfer Landlord shall be released from any further obligations hereunder and
Tenant agrees to look solely to the successor in interest of Landlord for the
performance of such obligations, provided that, any successor pursuant to a
voluntary, third party transfer (but not as part of an involuntary transfer
resulting from a foreclosure or deed in lieu thereof) shall have assumed
Landlord’s obligations under this Lease.


 


26.05  Landlord has delivered a copy of this Lease
to Tenant for Tenant’s review only and the delivery of it does not constitute
an offer to Tenant or an option. Tenant represents that it has dealt directly
with and only with the Broker as a broker in connection with this Lease.  Tenant shall indemnify and hold Landlord and
the Landlord Related Parties harmless from all claims of any other brokers
claiming to have represented Tenant in connection with this Lease. Landlord
shall indemnify and hold Tenant and the Tenant Related Parties harmless from
all claims of any brokers claiming to have represented Landlord in connection
with this Lease. Equity Office Properties Management Corp. (“EOPMC”) is an affiliate of Landlord and
represents only the Landlord in this transaction.  Any assistance rendered by any agent or
employee of EOPMC in connection with this Lease or any subsequent amendment or
modification hereto has been or will be made as an accommodation to Tenant
solely in furtherance of consummating the transaction on behalf of Landlord, and
not as agent for Tenant.


 


26.06 Time is of the essence
with respect to Tenant’s exercise of any expansion, renewal or extension rights
granted to Tenant. The expiration of the Term, whether by lapse of time,
termination or otherwise, shall not relieve either party of any obligations
which accrued prior to or which may continue to accrue after the expiration or
termination of this Lease.


 


26.07  Tenant may peacefully have, hold and enjoy
the Premises, subject to the terms of this Lease, provided Tenant pays the Rent
and fully performs all of its covenants and agreements.  This covenant shall be binding upon Landlord
and its successors only during its or their respective periods of ownership of
the Building.


 


26.08  This Lease does not grant any rights to light
or air over or about the Building. 
Landlord excepts and reserves exclusively to itself any and all rights
not specifically granted to Tenant under this Lease. This Lease constitutes the
entire agreement between the parties and supersedes all prior agreements and
understandings related to the Premises, including all lease proposals, letters
of intent and other documents.  Neither
party is relying upon any warranty, statement or representation not contained
in this Lease.  This Lease may be
modified only by a written agreement signed by an authorized representative of
Landlord and Tenant.


 


16





















 


26.09  Except with regard to requests for consent or
approval that require Landlord to make a determination of the aesthetics of
certain signage, alterations or other things that would be visible from outside
the Premises or Building or to assume certain risks, including, without
limitation, the risk that a certain alteration, addition and/or improvement
could adversely affect the mechanical systems or structure of the Building or
require excess removal costs, Landlord and Tenant agree to act reasonably in
granting approval or disapproval of any requests by the other for consent or
approval.


 


26.10  Wherever a payment is required to be made by
one party to the other under this Lease, but a specific date for payment or a
specific number of days within which payment is to be made is not set forth in
this Lease, or the words “immediately”, “promptly”, and/or “on demand”, or
their equivalent, are used to specify when such payment is due, then such
payment shall be due 30 days after the party which is entitled to such payment
sends written notice to the other party demanding such payment.


 


Landlord and Tenant have
executed this Lease as of the day and year first above written.


 


 


	
   

  	
  LANDLORD:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CA-10960 WILSHIRE LIMITED PARTNERSHIP, a

  Delaware limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  EOM GP, L.L.C., a Delaware
  limited liability

  company, its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Equity Office Management,
  L.L.C., a

  Delaware limited liability company, its non-

  member manager

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Robert F. Dezzutti

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Robert F. Dezzutti

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  TENANT:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  FASTCLICK, INC., a California corporation 

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kurt A. Johnson

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Kurt A. Johnson

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  CEO

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Fred J. Krupica
  

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Fred
  J. Krupica

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  CFO

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Tenant’s
  Tax ID Number (SSN or FEIN): 

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
													



 


17





















 


EXHIBIT A


 


OUTLINE AND LOCATION OF PREMISES


 


This Exhibit is attached to
and made a part of the Lease by and between CA-10960
WILSHIRE LIMITED PARTNERSHIP, a Delaware limited partnership (“Landlord”) and FASTCLICK, INC., a California corporation (“Tenant”) for space in the Building located
at 10960 Wilshire Boulevard, Los Angeles, California.


 





 


1





















 


EXHIBIT B


 


EXPENSES AND TAXES


 


This Exhibit is attached to
and made a part of the Lease by and between CA-10960
WILSHIRE LIMITED PARTNERSHIP, a Delaware limited partnership (“Landlord”) and FASTCLICK, INC., a California corporation (“Tenant”) for space in the Building located
at 10960 Wilshire Boulevard, Los Angeles, California.


 


1.  Payments.


 


1.01  Tenant shall pay Tenant’s Pro Rata Share of
the amount, if any, by which Expenses (defined below) for each calendar year
during the Term exceed Expenses for the Base Year (the “Expense Excess”) and also the amount, if
any, by which Taxes (defined below) for each calendar year during the Term
exceed Taxes for the Base Year (the “Tax
Excess”).  If Expenses or
Taxes in any calendar year decrease below the amount of Expenses or Taxes for
the Base Year, Tenant’s Pro Rata Share of Expenses or Taxes, as the case may
be, for that calendar year shall be $0. 
Landlord shall provide Tenant with a good faith estimate of the Expense
Excess and of the Tax Excess for each calendar year during the Term.  On or before the first day of each month,
Tenant shall pay to Landlord a monthly installment equal to one-twelfth of
Tenant’s Pro Rata Share of Landlord’s estimate of both the Expense Excess and
Tax Excess. After its receipt of the revised estimate, Tenant’s monthly
payments shall be based upon the revised estimate.  If Landlord does not provide Tenant with an
estimate of the Expense Excess or the Tax Excess by January 1 of a calendar
year, Tenant shall continue to pay monthly installments based on the previous
year’s estimate(s) until Landlord provides Tenant with the new estimate.


 


1.02  As soon as is practical following the end of
each calendar year, Landlord shall furnish Tenant with a statement of the
actual Expenses and Expense Excess and the actual Taxes and Tax Excess for the
prior calendar year.  If the estimated
Expense Excess or estimated Tax Excess for the prior calendar year is more than
the actual Expense Excess or actual Tax Excess, as the case may be, for the
prior calendar year, Landlord shall either provide Tenant with a refund or
apply any overpayment by Tenant against Rent due or next becoming due, provided
if the Term expires before the determination of the overpayment, Landlord shall
refund any overpayment to Tenant after first deducting the amount of Rent due.  If the estimated Expense Excess or estimated
Tax Excess for the prior calendar year is less than the actual Expense Excess
or actual Tax Excess, as the case may be, for such prior year, Tenant shall pay
Landlord, within 30 days after its receipt of the statement of Expenses or
Taxes, any underpayment for the prior calendar year.


 


2.  Expenses.


 


2.01  “Expenses”
means all costs and expenses incurred in each calendar year in connection with
operating, maintaining, repairing, and managing the Building and the Property.  Expenses include, without limitation:
(a)  all labor and labor related
costs, including wages, salaries, bonuses, taxes, insurance, uniforms,
training, retirement plans, pension plans and other employee benefits;
(b) management fees (not to exceed an amount equal to 5% of the gross
receipts for the Building each calendar year); (c) the cost of equipping,
staffing and operating an on-site and/or off-site management office for the
Building, provided if the management office services one or more other buildings
or properties, the shared costs and expenses of equipping, staffing and
operating such management office(s) shall be equitably prorated and apportioned
between the Building and the other buildings or properties; (d) accounting
costs; (e) the cost of services; (f) rental and purchase cost of
parts, supplies, tools and equipment; (g) insurance premiums and
deductibles; (h) electricity, gas and other utility costs; and
(i) the amortized cost of capital improvements (as distinguished from
replacement parts or components installed in the ordinary course of business)
made subsequent to the Base Year which are: 
(1) performed primarily to reduce current or future operating
expense costs, upgrade Building security or otherwise improve the operating
efficiency of the Property. Notwithstanding the foregoing, the portion of the
annual amortized costs to be included in Expenses in any calendar year with
respect to a capital improvement which is intended to reduce expenses or
improve the operating efficiency of the Property or Building shall equal the
lesser of: (a) such annual amortized costs; and (b) the anticipated
annual cost savings for such period; or (2) required to comply with any
Laws that are enacted, or first interpreted to apply to the Property, after the
date of this Lease. The cost of capital improvements shall be amortized by
Landlord over the lesser of the Payback Period (defined below) or the useful
life of the capital improvement as reasonably determined by Landlord. The
amortized cost of capital improvements may, at Landlord’s option, include
actual or imputed


 


1





















 


interest at the rate that Landlord would
reasonably be required to pay to finance the cost of the capital improvement. “Payback Period” means the reasonably
estimated period of time that it takes for the cost savings resulting from a
capital improvement to equal the total cost of the capital improvement.
Landlord, by itself or through an affiliate, shall have the right to directly
perform, provide and be compensated for any services under this Lease. If
Landlord incurs Expenses for the Building or Property together with one or more
other buildings or properties, whether pursuant to a reciprocal easement
agreement, common area agreement or otherwise, the shared costs and expenses
shall be equitably prorated and apportioned between the Building and Property
and the other buildings or properties.


 


2.02  Expenses shall not include: the cost of
capital improvements (except as set forth above); depreciation; principal
payments of mortgage and other non-operating debts of Landlord; the cost of
repairs or other work to the extent Landlord is reimbursed by insurance or
condemnation proceeds; costs in connection with leasing space in the Building,
including brokerage commissions; lease concessions, rental abatements and
construction allowances granted to specific tenants; costs incurred in
connection with the sale, financing or refinancing of the Building; fines,
interest and penalties incurred due to the late payment of Taxes or Expenses;
organizational expenses associated with the creation and operation of the
entity which constitutes Landlord; or any penalties or damages that Landlord
pays to Tenant under this Lease or to other tenants in the Building under their
respective leases. The following items are also excluded from Expenses:


 


(a)           Sums (other than management fees, it being
agreed that the management fees included in Expenses are as described in
Section 2.01 (b) above) paid to subsidiaries or other affiliates of
Landlord for services on or to the Property, Building and/or Premises, but only
to the extent that the costs of such services exceed the competitive cost for
such services rendered by persons or entities of similar skill, competence and experience.


 


(b)           Any fines, penalties or interest resulting
from the negligence or willful misconduct of the Landlord or its agents,
contractors, or employees.


 


(c)           Advertising and promotional expenditures.


 


(d)           Landlord’s charitable and political contributions.


 


(e)           Ground lease rental.


 


(f)            Attorney’s fees and other expenses incurred
in connection with negotiations or disputes with prospective tenants or tenants
or other occupants of the Building.


 


(g)           The cost or expense of any services or
benefits provided generally to other tenants in the Building and not provided
or available to Tenant.


 


(h)           All costs of purchasing or leasing major
sculptures, paintings or other major works or objects of art (as opposed to
decorations purchased or leased by Landlord for display in the Common Areas of
the Building).


 


(i)            Any expenses for which Landlord has received
actual reimbursement (other than through Expenses).


 


(j)            Costs incurred by Landlord in connection with
the correction of defects in design and original construction of the Building
or Property.


 


(k)           Expenses for the replacement of any item
covered under warranty, unless Landlord has not received payment under such
warranty and it would not be fiscally prudent to pursue legal action to collect
on such warranty.


 


(l)            Fines or penalties incurred as a result of
violation by Landlord of any applicable Laws.


 


2





















 


(m)          Taxes.


 


(n)           Any compensation paid to clerks, attendants or other persons in
commercial concessions operated by Landlord or in the parking garage of the
Building or wherever Tenant is granted its parking privileges and/or all fees
paid to any parking facility operator (on or off site) (provided, however, that
if Landlord provides such parking to Tenant free of charge or at a reduced
rate, to the extent that Tenant’s Pro Rata Share of such expenses exceeds any
amount paid by Tenant for such parking, these expenses may be included as a
part of Expenses).


 


(o)           Expenses incurred by
Landlord in order to correct any existing (as of the date of this Lease)
violations of any applicable Laws, including without limitation the Americans
with Disabilities Act (the “ADA”),
the Federal Occupational Safety and Health Act of 1970 (as amended) and any
Laws relating to environmental, health or safety matters, provided that the
cost of performing repairs and replacements to correct a violation of Law shall
be included in Expenses if and to the extent the cost of performing such
repairs and replacements would properly have been included in Expenses absent
such violation of Law.


 


(p)           Any cost or expense related to removal, cleaning, abatement or
remediation of “hazardous materials”
in or about the Building, Common Area or Property, including, without
limitation, hazardous substances in the ground water or soil, except to the
extent such removal, cleaning, abatement or remediation is related to the
general repair and maintenance of the Building, Common Area or Property.


 


2.03  If Landlord does not carry earthquake and/or
terrorism insurance for the Building during the Base Year but subsequently
obtains earthquake and/or terrorism insurance for the Building during the Term,
then from and after the date upon which Landlord obtains such earthquake and/or
terrorism insurance and continuing throughout the period during which Landlord
maintains such insurance, Expenses for the Base Year shall be deemed to be
increased by the amount of the premium Landlord would have incurred had
Landlord maintained such insurance for the same period of time during the Base
Year as such insurance is maintained by Landlord during such subsequent
calendar year.


 


2.04  If at any time during a calendar year the
Building is not at least 95% occupied with tenants paying full Rent or Landlord
is not supplying services to at least 95% of the total Rentable Square Footage
of the Building, Expenses shall be determined as if the Building had been 95%
occupied with tenants paying full Rent and Landlord had been supplying services
to 95% of the Rentable Square Footage of the Building.  If Expenses for a calendar year are
determined as provided in the prior sentence, Expenses for the Base Year shall
also be determined in such manner. Notwithstanding the foregoing, Landlord may
calculate the extrapolation of Expenses under this Section based on 100%
occupancy and service so long as such percentage is used consistently for each
year of the Term. The extrapolation of Expenses under this Section shall be
performed in accordance with the methodology specified by the Building Owners and
Managers Association.


 


3.  “Taxes” shall mean:  (a) all real property taxes and other
assessments on the Building and/or Property, including, but not limited to,
gross receipts taxes, assessments for special improvement districts and
building improvement districts, governmental charges, fees and assessments for
police, fire, traffic mitigation or other governmental service of purported
benefit to the Property, taxes and assessments levied in substitution or
supplementation in whole or in part of any such taxes and assessments and the
Property’s share of any real estate taxes and assessments under any reciprocal
easement agreement, common area agreement or similar agreement as to the
Property; (b) all personal property taxes for property that is owned by
Landlord and used in connection with the operation, maintenance and repair of
the Property; and (c) all costs and fees incurred in connection with
seeking reductions in any tax liabilities described in (a) and (b), including,
without limitation, any costs incurred by Landlord for compliance, review and
appeal of tax liabilities.  Without
limitation, Taxes shall not include any income, capital levy, transfer, capital
stock, gift, estate or inheritance tax. If a change in Taxes is obtained for
any year of the Term during which Tenant paid Tenant’s Pro Rata Share of any
Tax Excess, then Taxes for that year will be retroactively adjusted and
Landlord shall provide Tenant


 


3





















 


with a credit, if any, based on the adjustment.  Likewise, if a change is obtained for Taxes
for the Base Year, Taxes for the Base Year shall be restated and the Tax Excess
for all subsequent years shall be recomputed. 
Tenant shall pay Landlord the amount of Tenant’s Pro Rata Share of any
such increase in the Tax Excess within 30 days after Tenant’s receipt of a
statement from Landlord.


 


4.  Audit Rights.  Tenant, within 365 days after receiving
Landlord’s statement of Expenses, may give Landlord written notice (“Review Notice”) that Tenant intends to
review Landlord’s records of the Expenses for the calendar year to which the
statement applies.  Within a reasonable
time after receipt of the Review Notice, Landlord shall make all pertinent
records available for inspection that are reasonably necessary for Tenant to
conduct its review.  If any records are
maintained at a location other than the management office for the Building,
Tenant may either inspect the records at such other location or pay for the
reasonable cost of copying and shipping the records.  If Tenant retains an agent to review
Landlord’s records, the agent must be with a CPA firm licensed to do business
in the state or commonwealth where the Property is located.  Tenant shall be solely responsible for all
costs, expenses and fees incurred for the audit.  Within 180 days after the records are made
available to Tenant, Tenant shall have the right to give Landlord written
notice (an “Objection Notice”)
stating in reasonable detail any objection to Landlord’s statement of Expenses
for that year. If Tenant fails to give Landlord an Objection Notice within the
180 day period or fails to provide Landlord with a Review Notice within the 365
day period described above, Tenant shall be deemed to have approved Landlord’s
statement of Expenses and shall be barred from raising any claims regarding the
Expenses for that year.  If Tenant
provides Landlord with a timely Objection Notice, Landlord and Tenant shall
work together in good faith to resolve any issues raised in Tenant’s Objection
Notice.  If Landlord and Tenant determine
that Expenses for the calendar year are less than reported, Landlord shall
provide Tenant with a credit against the next installment of Rent in the amount
of the overpayment by Tenant.  Likewise,
if Landlord and Tenant determine that Expenses for the calendar year are
greater than reported, Tenant shall pay Landlord the amount of any underpayment
within 30 days.  The records obtained by
Tenant shall be treated as confidential. 
In no event shall Tenant be permitted to examine Landlord’s records or
to dispute any statement of Expenses unless Tenant has paid and continues to
pay all Rent when due.


 


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EXHIBIT C


 


WORK LETTER


 


This
Exhibit is attached to and made a part of the Lease by and between CA-10960 WILSHIRE LIMITED PARTNERSHIP, a Delaware
limited partnership (“Landlord”)
and FASTCLICK, INC., a California corporation
(“Tenant”) for space in
the Building located at 10960 Wilshire Boulevard, Los Angeles, California.


 


A.                                   Tenant shall have the right to perform
alterations and improvements in the Premises (the “Initial Alterations”). 
Notwithstanding the foregoing, Tenant and its contractors shall not have
the right to perform Initial Alterations in the Premises unless and until
Tenant has complied with all of the terms and conditions of Section 9 of the
Lease, including, without limitation, approval by Landlord of the final plans
for the Initial Alterations and the contractors to be retained by Tenant to
perform such Initial Alterations. Landlord hereby approves the following
general contractors:  (i) Environmental
Contracting Corporation, (ii) Taslimi and (iii) Pinnacle Contracting Corp.  Tenant shall be responsible for all elements
of the design of Tenant’s plans (including, without limitation, compliance with
law, functionality of design, the structural integrity of the design, the
configuration of the premises and the placement of Tenant’s furniture, appliances
and equipment), and Landlord’s approval of Tenant’s plans shall in no event
relieve Tenant of the responsibility for such design.  Landlord’s approval of the contractors to
perform the Initial Alterations shall not be unreasonably withheld.  The parties agree that Landlord’s approval of
the general contractor to perform the Initial Alterations shall not be
considered to be unreasonably withheld if any such general contractor
(i) does not have trade references reasonably acceptable to Landlord, (ii) does
not maintain insurance as required pursuant to the terms of this Lease,
(iii) does not have the ability to be bonded for the work in an amount of
no less than 150% of the total estimated cost of the Initial Alterations,
(iv) does not provide current financial statements reasonably acceptable
to Landlord, or (v) is not licensed as a contractor in the
state/municipality in which the Premises is located.  Tenant acknowledges the foregoing is not
intended to be an exclusive list of the reasons why Landlord may reasonably
withhold its consent to a general contractor. Tenant shall, as part of the
Initial Alterations, be responsible for constructing the demising wall between
the Premises and the remainder of Suite 1960 provided Landlord shall reimburse
Tenant for 50% of such cost.


 


B.                                     The Allowance may only be used for costs in
connection with the Initial Alterations including hard costs for construction,
design fees, cabling and built-in furniture. 
The Allowance, less a 10% retainage (which retainage shall be payable as
part of the final draw), shall be paid to Tenant or, at Landlord’s option, to
the order of the general contractor that performs the Initial Alterations, in
periodic disbursements within 30 days after receipt of the following
documentation: (i) an application for payment and sworn statement of
contractor substantially in the form of AIA Document G-702 covering all work
for which disbursement is to be made to a date specified therein; (ii) a
certification from an AIA architect substantially in the form of the
Architect’s Certificate for Payment which is located on AIA Document G702,
Application and Certificate of Payment; (iii) Contractor’s,
subcontractor’s and material supplier’s waivers of liens which shall cover all
Initial Alterations for which disbursement is being requested and all other
statements and forms required for compliance with the mechanics’ lien laws of
the state in which the Premises is located, together with all such invoices,
contracts, or other supporting data as Landlord or Landlord’s Mortgagee may
reasonably require; (iv) copies of all construction contracts for the
Initial Alterations, together with copies of all change orders, if any; and
(v) a request to disburse from Tenant containing an approval by Tenant of
the work done and a good faith estimate of the cost to complete the Initial
Alterations.  Upon completion of the
Initial Alterations, and prior to final disbursement of the Allowance, Tenant
shall furnish Landlord with: 
(1) general contractor and architect’s completion affidavits,
(2) full and final waivers of lien, (3) receipted bills covering all
labor and materials expended and used, (4) as-built plans of the Initial
Alterations, (5) a cost breakdown for each trade or subcontractor
performing the Initial Alterations; (6) plans and specifications for the
Initial Alterations, together with a certificate from an AIA architect that
such plans and specifications comply in all material respects with all laws
affecting the Building,


 


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Property
and Premises; and (7) the certification of Tenant and its architect that the
Initial Alterations have been installed in a good and workmanlike manner in
accordance with the approved plans, and in accordance with applicable laws, codes
and ordinances.  In no event shall
Landlord be required to disburse the Allowance more than one time per
month.  If the Initial Alterations exceed
the Allowance, Tenant shall be entitled to the Allowance in accordance with the
terms hereof, but each individual disbursement of the Allowance shall be
disbursed in the proportion that the Allowance bears to the total cost for the
Initial Alterations, less the 10% retainage referenced above.  Notwithstanding anything herein to the
contrary, Landlord shall not be obligated to disburse any portion of the
Allowance during the continuance of an uncured default under the Lease, and
Landlord’s obligation to disburse shall only resume when and if such default is
cured.


 


C.                                     In no event shall the Allowance be used for
the purchase of equipment, furniture or other items of personal property of
Tenant.  If Tenant does not submit a
request for payment of the entire Allowance to Landlord in accordance with the
provisions contained in this Exhibit by December
31, 2005, any unused amount shall accrue to the sole benefit of
Landlord, it being understood that Tenant shall not be entitled to any credit,
abatement or other concession in connection therewith.  Tenant shall be responsible for all
applicable state sales or use taxes, if any, payable in connection with the
Initial Alterations and/or Allowance. 
Landlord shall not be
entitled to charge, be paid or to deduct from the Allowance a construction
management fee for Landlord’s oversight of the Initial Alterations.


 


D.                                    Tenant agrees to accept the Premises in its
“as-is” condition and configuration, it being agreed that Landlord shall not be
required to perform any work or, except as provided above with respect to the
Allowance, incur any costs in connection with the construction or demolition of
any improvements in the Premises.


 


E.                                      Notwithstanding the provisions of Section
1.06 of the Lease to the contrary, the Commencement Date shall be delayed by
the number of days of delay of the “substantial completion of the Initial
Alterations”, as that term is defined below, which delay is caused solely by
(i) Force Majeure or (ii) a “Landlord Caused Delay”.  For purposes of this Exhibit C, a “Landlord Caused Delay” shall mean only an
actual delay resulting from (a) the failure of Landlord to timely approve
or disapprove Tenant’s final plans for the Initial Alterations;
(b) unreasonable and material interference by Landlord, its agents or
contractors with access by Tenant, its agents and contractors to the Building
or any Building facilities (including loading docks and freight elevators)
during Building Service Hours, or the use thereof during Building Service
Hours, which interference objectively and actually precludes construction of
the Initial Alterations; (c) the failure of Landlord to timely pay the
Allowance provided Tenant has properly requested the disbursement; and (d) the
failure of Landlord to deliver possession of that portion of the Premises known
as Suite 1960 and consisting of 1,252 rentable square feet by May 1, 2005.  Notwithstanding the foregoing to the
contrary, a Landlord Caused Delay shall not include any delay in the
substantial completion of the Initial Alterations due to compliance with or
additional burdens resulting from the Landlord’s Contractor Rules and Regulations
and the Building Rules and Regulations. 
If Tenant contends that a Landlord Caused Delay has occurred pursuant to
(b) and (c) above, Tenant shall notify Landlord in writing (the “Delay Notice”) within 10 Business Days of
each of (i) the date upon which such Landlord Caused Delay becomes known
to Tenant, and (ii) the date upon which such Landlord Caused Delay ends
(the “Delay Termination Date”).  Tenant’s failure to deliver either or both of
such notices to Landlord within the required time period shall be deemed to be
a waiver by Tenant of the contended Landlord Caused Delay to which such notices
would have related.  If such actions,
inaction or circumstances described in the Delay Notice are not cured by
Landlord within 2 Business Days of receipt of the Delay Notice and if such
actions, inaction or circumstances otherwise qualify as a Landlord Caused
Delay, then a Landlord Caused Delay shall be deemed to have occurred commencing
as of the date such delay first occurred and ending as of the Delay Termination
Date.  For purposes of this
Paragraph E, “substantial completion of
the Initial Alterations” shall mean completion of construction of
the Initial Alterations in the Premises pursuant to the final plans approved by
Landlord with the exception of any punch list items.


 


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F.                                      Design Problem. Tenant,
in order to obtain Landlord’s consent to the construction of the Alterations,
shall submit the plans and specifications to Landlord for its consent all at
once or in one or more parts and on one or more occasions.  Each time Landlord receives all or a portion
of the plans and specifications, Landlord shall, within 4 Business Days of
receipt of same by notice to Tenant, either approve the plans and
specifications or reject them to the extent a Design Problem, as defined below,
exists with any such rejection specifying in detail what is being rejected and
why it constitutes a Design Problem. 
Landlord shall not reject the plans and specifications except to the
extent the plans and specifications (a) do not comply with applicable Laws, (b)
would have an adverse effect on the structural integrity of the Building, (c)
would have an adverse effect on the mechanical, electrical, HVAC and plumbing
systems of the Building, (d) would unreasonably interfere with another
occupant’s normal and customary business office operations, or (e) would affect
the outside appearance of the Building (individually and collectively, a “Design Problem”).


 


G.                                     Hazardous Materials.  In
the event that any hazardous materials or substances (as defined by applicable
Law) exist in the Premises as of the date of this Lease, following notice
thereof from Tenant, Landlord shall, at Landlord’s sole cost and expense,
remove, abate or otherwise treat such hazardous materials or substances to the
extent required to comply with applicable Laws.


 


H.                                    This Exhibit shall not be deemed
applicable to any additional space added to the Premises at any time or from
time to time, whether by any options under the Lease or otherwise, or to any
portion of the original Premises or any additions to the Premises in the event
of a renewal or extension of the original Term of the Lease, whether by any
options under the Lease or otherwise, unless expressly so provided in the Lease
or any amendment or supplement to the Lease.


 


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EXHIBIT D


 


COMMENCEMENT LETTER


 


(EXAMPLE)


 


INTENTIONALLY OMITTED


 


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EXHIBIT E


 


BUILDING RULES AND REGULATIONS


 


This
Exhibit is attached to and made a part of the Lease by and between CA-10960 WILSHIRE LIMITED PARTNERSHIP, a Delaware
limited partnership (“Landlord”)
and FASTCLICK, INC., a California corporation
(“Tenant”) for space in
the Building located at 10960 Wilshire Boulevard, Los Angeles, California.


 


The
following rules and regulations shall apply, where applicable, to the Premises,
the Building, the parking facilities (if any), the Property and the
appurtenances.  In the event of a
conflict between the following rules and regulations and the remainder of the
terms of the Lease, the remainder of the terms of the Lease shall control.  Capitalized terms have the same meaning as
defined in the Lease.


 


1.                                       Sidewalks, doorways, vestibules, halls,
stairways and other similar areas shall not be obstructed by Tenant or used by
Tenant for any purpose other than ingress and egress to and from the
Premises.  No rubbish, litter, trash, or
material shall be placed, emptied, or thrown in those areas.  At no time shall Tenant permit Tenant’s
employees to loiter in Common Areas or elsewhere about the Building or
Property.


 


2.                                       Plumbing fixtures and appliances shall be
used only for the purposes for which designed and no sweepings, rubbish, rags
or other unsuitable material shall be thrown or placed in the fixtures or
appliances.


 


3.                                       No signs, advertisements or notices shall be
painted or affixed to windows, doors or other parts of the Building, except
those of such color, size, style and in such places as are first approved in
writing by Landlord.  All tenant
identification and suite numbers at the entrance to the Premises shall be
installed by Landlord, at Tenant’s cost and expense, using the standard
graphics for the Building. Except in connection with the hanging of lightweight
pictures and wall decorations, no nails, hooks or screws shall be inserted into
any part of the Premises or Building except by the Building maintenance
personnel without Landlord’s prior approval, which approval shall not be
unreasonably withheld.


 


4.                                       Landlord may provide and maintain in the
first floor (main lobby) of the Building an alphabetical directory board or
other directory device listing tenants and no other directory shall be
permitted unless previously consented to by Landlord in writing.


 


5.                                       Tenant shall not place any lock(s) on any
door in the Premises or Building without Landlord’s prior written consent,
which consent shall not be unreasonably withheld, and Landlord shall have the
right at all times to retain and use keys or other access codes or devices to
all locks within and into the Premises. 
A reasonable number of keys to the locks on the entry doors in the
Premises shall be furnished by Landlord to Tenant at Tenant’s cost and Tenant
shall not make any duplicate keys.  All
keys shall be returned to Landlord at the expiration or early termination of
the Lease.


 


6.                                       All contractors, contractor’s representatives
and installation technicians performing work in the Building shall be subject
to Landlord’s prior approval, which approval shall not be unreasonably
withheld, and shall be required to comply with Landlord’s standard rules,
regulations, policies and procedures, which may be revised from time to time.


 


7.                                       Movement in or out of the Building of
furniture or office equipment, or dispatch or receipt by Tenant of merchandise
or materials requiring the use of elevators, stairways, lobby areas or loading
dock areas, shall be restricted to hours reasonably designated by
Landlord.  Tenant shall obtain Landlord’s
prior approval by providing a detailed listing of the activity, which approval
shall not be unreasonably withheld.  If
approved by Landlord, the activity shall be under the supervision of Landlord
and performed in the manner required by Landlord.  Tenant shall assume all risk for damage to
articles moved and injury to any persons resulting from the activity.  If equipment, property, or personnel of
Landlord or of any other party is damaged or injured as a result of or in
connection with the activity, Tenant shall be solely liable for any resulting
damage, loss or injury.


 


8.                                       Landlord shall have the right to approve the
weight, size, or location of heavy equipment or articles in and about the
Premises, which approval shall not be unreasonably withheld.  Damage to the Building by the installation,
maintenance, operation, existence or removal of Tenant’s Property shall be
repaired at Tenant’s sole expense.


 


1





















 


9.                                       Corridor doors, when not in use, shall be
kept closed.


 


10.                                 Tenant shall not:  (1) make or permit any improper,
objectionable or unpleasant noises or odors in the Building, or otherwise
interfere in any way with other tenants or persons having business with them;
(2) solicit business or distribute or cause to be distributed, in any portion
of the Building, handbills, promotional materials or other advertising; or
(3) conduct or permit other activities in the Building that might, in
Landlord’s sole opinion, constitute a nuisance.


 


11.                                 No animals, except those assisting
handicapped persons, shall be brought into the Building or kept in or about the
Premises.


 


12.                                 No inflammable, explosive or dangerous fluids
or substances shall be used or kept by Tenant in the Premises, Building or
about the Property, except for those substances as are typically found in
similar premises used for general office purposes (i.e. , “White Out”, and
photocopy toner) and are being used by Tenant in a safe manner and in
accordance with all applicable Laws. 
Tenant shall not, without Landlord’s prior written consent, use, store,
install, spill, remove, release or dispose of, within or about the Premises or
any other portion of the Property, any asbestos-containing materials or any
solid, liquid or gaseous material now or subsequently considered toxic or
hazardous under the provisions of 42 U.S.C. Section 9601 et seq. or any
other applicable environmental Law which may now or later be in effect.  Tenant shall comply with all Laws pertaining
to and governing the use of these materials by Tenant and shall remain solely
liable for the costs of abatement and removal.


 


13.                                 Tenant shall not use or occupy the Premises
in any manner or for any purpose which might injure the reputation or impair
the present or future value of the Premises or the Building. Tenant shall not
use, or permit any part of the Premises to be used for lodging, sleeping or for
any illegal purpose.


 


14.                                 Tenant shall not take any action which would
violate Landlord’s labor contracts or which would cause a work stoppage,
picketing, labor disruption or dispute or interfere with Landlord’s or any
other tenant’s or occupant’s business or with the rights and privileges of any
person lawfully in the Building (“Labor
Disruption”).  Tenant shall
take the actions necessary to resolve the Labor Disruption, and shall have
pickets removed and, at the request of Landlord, immediately terminate any work
in the Premises that gave rise to the Labor Disruption, until Landlord gives
its written consent for the work to resume. 
Tenant shall have no claim for damages against Landlord or any of the
Landlord Related Parties nor shall the Commencement Date of the Term be
extended as a result of the above actions.


 


15.                                 Tenant shall not install, operate or maintain
in the Premises or in any other area of the Building, electrical equipment that
would overload the electrical system beyond its capacity for proper, efficient
and safe operation as determined solely by Landlord.  Tenant shall not furnish cooling or heating
to the Premises, including, without limitation, the use of electric or gas
heating devices, without Landlord’s prior written consent.  Tenant shall not use more than its
proportionate share of telephone lines and other telecommunication facilities
available to service the Building.


 


16.                                 Tenant shall not operate or permit to be
operated a coin or token operated vending machine or similar device (including,
without limitation, telephones, lockers, toilets, scales, amusement devices and
machines for sale of beverages, foods, candy, cigarettes and other goods),
except for machines for the exclusive use of Tenant’s employees and invitees.


 


17.                                 Bicycles and other vehicles are not permitted
inside the Building or on the walkways outside the Building, except in areas
designated by Landlord.


 


18.                                 Landlord may from time to time adopt systems
and procedures for the security and safety of the Building and Property, its
occupants, entry, use and contents. 
Tenant, its agents, employees, contractors, guests and invitees shall
comply with Landlord’s systems and procedures.


 


19.                                 Landlord shall have the right to prohibit the
use of the name of the Building or any other publicity by Tenant that in
Landlord’s sole opinion may impair the reputation of the


 


2





















 


Building
or its desirability.  Upon written notice
from Landlord, Tenant shall refrain from and discontinue such publicity
immediately.


 


20.                                 Neither Tenant nor its agents, employees,
contractors, guests or invitees shall smoke or permit smoking in the Common
Areas, unless a portion of the Common Areas have been declared a designated
smoking area by Landlord, nor shall the above parties allow smoke from the
Premises to emanate into the Common Areas or any other part of the
Building.  Landlord shall have the right
to designate the Building (including the Premises) as a non-smoking building.


 


21.                                 Landlord shall have the right to designate
and approve standard window coverings for the Premises and to establish rules
to assure that the Building presents a uniform exterior appearance.  Tenant shall ensure, to the extent reasonably
practicable, that window coverings are closed on windows in the Premises while
they are exposed to the direct rays of the sun.


 


22.                                 Deliveries to and from the Premises shall be
made only at the times in the areas and through the entrances and exits
reasonably designated by Landlord. 
Tenant shall not make deliveries to or from the Premises in a manner
that might interfere with the use by any other tenant of its premises or of the
Common Areas, any pedestrian use, or any use which is inconsistent with good
business practice.


 


23.                                 The work of cleaning personnel shall not be
hindered by Tenant after 5:30 P.M., and cleaning work may be done at any time
when the offices are vacant. Windows, doors and fixtures may be cleaned at any
time.  Tenant shall provide adequate
waste and rubbish receptacles to prevent unreasonable hardship to the cleaning
service.


 


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EXHIBIT F


 


ADDITIONAL PROVISIONS


 


This
Exhibit is attached to and made a part of the Lease by and between CA-10960 WILSHIRE LIMITED PARTNERSHIP, a Delaware
limited partnership (“Landlord”)
and FASTCLICK, INC., a California corporation
(“Tenant”) for space in
the Building located at 10960 Wilshire Boulevard, Los Angeles, California.


 


I.                                         ASBESTOS NOTIFICATION. 
Tenant acknowledges that Tenant has received the asbestos notification
letter attached to this Lease as Exhibit H
hereto, disclosing the existence of asbestos in the Building.  As part of Tenant’s obligations under this
Lease, Tenant agrees to comply with the California “Connelly Act” and other
applicable Laws, including providing copies of Landlord’s asbestos notification
letter to all of Tenant’s “employees” and “owners”, as those terms are defined
in the Connelly Act and other applicable Laws.


 


II.                                     LETTER OF CREDIT.


 


A.                                   General Provisions. 
Concurrently with Tenant’s execution of this Lease, Tenant shall deliver
to Landlord, as collateral for the full performance by Tenant of all of its
obligations under this Lease and for all losses and damages Landlord may suffer
as a result of Tenant’s failure to comply with one or more provisions of this
Lease, including, but not limited
to, any post lease termination damages under section 1951.2 of the California
Civil Code, a standby, unconditional,
irrevocable, transferable letter of credit (the “Letter of Credit”)
in the form of Exhibit
I hereto and containing the terms required herein, in the
face amount of $85,000.00 (the “Letter
of Credit Amount”), naming Landlord as beneficiary, issued (or
confirmed) by a financial institution acceptable to Landlord in Landlord’s sole
discretion, permitting multiple and partial draws thereon, and otherwise in
form acceptable to Landlord in its sole discretion.  Tenant shall cause the Letter of Credit to be
continuously maintained in effect (whether through replacement, renewal or
extension) in the Letter of Credit Amount through the date (the “Final
LC Expiration Date”) that is 60 days after the scheduled
expiration date of the Term or any renewal Term.  If the Letter of Credit held by Landlord
expires earlier than the Final LC Expiration Date (whether by reason of a
stated expiration date or a notice of termination or non-renewal given by the
issuing bank), Tenant shall deliver a new Letter of Credit or certificate of
renewal or extension (a “Renewal or
Replacement LC”) to Landlord not later than 60 days prior to the
expiration date of the Letter of Credit then held by Landlord.  Any Renewal or Replacement LC shall comply
with all of the provisions of this Section II, shall be irrevocable,
transferable and shall remain in effect (or be automatically renewable) through
the Final LC Expiration Date upon the same terms as the expiring Letter of
Credit or such other terms as may be acceptable to Landlord in its sole
discretion.


 


B.                                     Drawings
under Letter of Credit. Upon Tenant’s failure to comply with one or more
provisions of this Lease, or as otherwise specifically agreed by Landlord and
Tenant pursuant to this Lease or any amendment hereof, Landlord may, without
prejudice to any other remedy provided in this Lease or by Law, draw on the
Letter of Credit and use all or part of the proceeds to (b) satisfy any amounts
due to Landlord from Tenant, and (b) satisfy any other damage, injury, expense
or liability caused by Tenant’s failure to so comply.  In addition, if Tenant fails to furnish a
Renewal or Replacement LC complying with all of the provisions of this Section
II at least 60 days prior to the stated expiration date of the Letter of Credit
then held by Landlord, Landlord may draw upon such Letter of Credit and hold
the proceeds thereof (and such proceeds need not be segregated) in accordance
with the terms of this Section II (the “LC Proceeds Account”).


 


C.                                     Use of Proceeds by Landlord.  The proceeds of the Letter of Credit shall
constitute Landlord’s sole and separate property (and not Tenant’s property or
the property of Tenant’s bankruptcy estate) and Landlord may immediately upon
any draw (and without notice to Tenant) apply or offset the proceeds of the Letter
of Credit: (a)  against any Rent payable by Tenant under this Lease that
is not paid when due; (b) against all losses and damages that Landlord has
suffered or that Landlord reasonably estimates that it may suffer as a result
of Tenant’s failure to comply with one or more provisions of this Lease,
including any


 


1





















 


damages arising under
section 1951.2 of the California Civil Code following termination of the Lease;
(c) against any costs incurred by Landlord in connection with the Lease
(including attorneys’ fees); and (d) against any other amount that
Landlord may spend or become obligated to spend by reason of Tenant’s
Default.  Provided Tenant has performed
all of its obligations under this Lease, Landlord agrees to pay to Tenant
within 45 days after the Final LC Expiration Date the amount of any proceeds of
the Letter of Credit received by Landlord and not applied as allowed above;
provided, that if prior to the Final LC Expiration Date a voluntary petition is
filed by Tenant or any Guarantor, or an involuntary petition is filed against
Tenant or any Guarantor by any of Tenant’s or Guarantor’s creditors, under the
Federal Bankruptcy Code, then Landlord shall not be obligated to make such
payment in the amount of the unused Letter of Credit proceeds until either all
preference issues relating to payments under this Lease have been resolved in
such bankruptcy or reorganization case or such bankruptcy or reorganization
case has been dismissed, in each case pursuant to a final court order not
subject to appeal or any stay pending appeal.


 


D.                                    Additional Covenants of Tenant.  If, as result of any
application or use by Landlord of all or any part of the Letter of Credit, the
amount of the Letter of Credit shall be less than the Letter of Credit Amount,
Tenant shall, within 5 days thereafter, provide Landlord with additional
letter(s) of credit in an amount equal to the deficiency (or a replacement
letter of credit in the total Letter of Credit Amount), and any such additional
(or replacement) letter of credit shall comply with all of the provisions of
this Section II, and if Tenant fails to comply with the foregoing,
notwithstanding anything to the contrary contained in this Lease, the same
shall constitute an incurable Default by Tenant.  Tenant further covenants and warrants that it
will neither assign nor encumber the Letter of Credit or any part thereof and
that neither Landlord nor its successors or assigns will be bound by any such
assignment, encumbrance, attempted assignment or attempted encumbrance.


 


E.                                      Nature of Letter of Credit. 
Landlord and Tenant (a) acknowledge and agree that in no event or
circumstance shall the Letter of Credit or any renewal thereof or substitute
therefor or any proceeds thereof (including the LC Proceeds Account) be deemed
to be or treated as a “security deposit” under any Law applicable to security
deposits in the commercial context including
Section 1950.7 of the California Civil Code, as such section now exist or as
may be hereafter amended or succeeded (“Security Deposit Laws”),
(b) acknowledge and agree that the Letter of Credit (including any renewal
thereof or substitute therefor or any proceeds thereof) is not intended to
serve as a security deposit, and the Security Deposit Laws shall have no
applicability or relevancy thereto, and (c) waive any and all rights,
duties and obligations either party may now or, in the future, will have
relating to or arising from the Security Deposit Laws. 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, which (i) establish the time frame by which Landlord must
refund a security deposit under a lease, and/or (ii) provide that Landlord
may claim from the security deposit only those sums reasonably necessary to
remedy Defaults in the payment of rent, to repair damage caused by Tenant or to
clean the Premises, it being agreed that Landlord may, in addition, claim those
sums specified above in this Section II and/or those sums reasonably
necessary to compensate Landlord for any loss or damage caused by Tenant’s
breach of this Lease or the acts or omission of Tenant or any other Tenant
Related Parties, including any damages Landlord suffers following termination
of the Lease.


 


F.                                      Reduction in Letter of
Credit Amount. Provided
that, during the 12 month period immediately preceding the effective date
of any reduction of the Letter of Credit, Tenant
has timely paid all Rent and no Default has occurred under this Lease (the “LC Reduction Conditions”), Tenant may
reduce the Letter of Credit Amount so that the reduced Letter of Credit Amounts
will be as follows: (a) $63,750.00
effective as of the first day of the 25th full month of the Term;  (b) $42,500.00
effective as of the first day of the 37th full month of the Term; and (c) $21,250.00 effective as the first day of
the 49th full month of the Term. If Tenant is not entitled to reduce the Letter
of Credit Amount as of a particular reduction effective date due to Tenant’s
failure to satisfy the LC Reduction Conditions described above, then any
subsequent reduction(s) Tenant is entitled to hereunder shall be reduced by the
amount of the reduction Tenant would have


 


2





















 


been
entitled to had Tenant satisfied the LC Reduction Conditions necessary for such
earlier reduction.  Notwithstanding
anything to the contrary contained herein, if Tenant has been in Default under
this Lease at any time prior to the effective date of any reduction of the
Letter of Credit Amount and Tenant has failed to cure such Default within any
applicable cure period, then Tenant shall have no further right to reduce the
Letter of Credit Amount as described herein. 
Any reduction in the Letter of Credit Amount shall be accomplished by
Tenant providing Landlord with a substitute letter of credit in the reduced
amount or an amendment to the existing Letter of Credit reflecting the reduced
amount.


 


III.           TEMPORARY
SPACE.


 


A.                                   During the period beginning on the later of
the full and final execution of this Lease by Landlord and Tenant, delivery of the
Letter of Credit and all prepaid rental, if any, required under this Lease,
delivery of all initial certificates of insurance required by this Lease (which
certificates of insurance shall specifically cover both the Temporary Space
during the Temporary Space Term, as hereinafter defined, and the Premises), and
ending on the Commencement Date of this Lease (such period being referred to
herein as the “Temporary Space Term”),
Landlord shall allow Tenant to use approximately 2,213 rentable square feet of space known as Suite No. 940
located on the 9th floor of the Building as shown on Exhibit F-1 of this Lease (the “Temporary Space”) for the Permitted
Use.  During the Temporary Space Term,
the Temporary Space shall be deemed the “Premises” for purposes of Section 13
(Indemnity and Waiver of Claims) of the Lease. 
Such Temporary Space shall be accepted by Tenant in its “as-is”
condition and configuration, it being agreed that Landlord shall be under no
obligation to perform any work in the Temporary Space or to incur any costs in
connection with Tenant’s move in, move out or occupancy of the Temporary
Space.  Tenant acknowledges that it shall
be entitled to use and occupy the Temporary Space at its sole cost, expense and
risk.  Tenant shall not construct any
improvements or make any alterations of any type to the Temporary Space without
the prior written consent of Landlord. 
All costs in connection with making the Temporary Space ready for
occupancy by Tenant shall be the sole responsibility of Tenant. Tenant’s at
Tenant’s sole cost and expense may install Cable for use in the Temporary
Space, subject to Landlord’s review and approval.  The removal of such Cable shall be subject to
the terms and conditions set forth in Section 8 of the Lease.


 


B.                                     The Temporary Space shall be subject to all
the terms and conditions of the Lease except as expressly modified herein,
provided that Base Rent for the Temporary Space during the Temporary Space Term
shall be $5,311.20 each month
during the Temporary Space Term, payable in accordance with the Lease, with the
first installment due on the date Landlord delivers possession of the Temporary
Space to Tenant. Notwithstanding anything in this Section of the Lease to the
contrary, so long as Tenant is not in Default under this Lease, Tenant shall be
entitled to an abatement of Base Rent of the Temporary Space in the amount of $5,311.20 per month for 1 full calendar
month of the Temporary Space Term, beginning with the 2nd full calendar month
of the Temporary Space Term. If the Temporary Space Term commences on other
than the first day of a calendar month or ends on other than the last day of a
calendar month, then the monthly Base Rent payable for the Temporary Space for
any such partial month shall be prorated to reflect the actual number of days
of such partial month falling within the Temporary Space Term.  Tenant shall
not be required to pay Tenant’s Pro Rata Share of Expenses and Taxes
for the Temporary Space during the Temporary Space Term.  Tenant shall
not be entitled to receive any allowances, abatement or other
financial concession in connection with the Temporary Space which was granted
with respect to the Premises unless such concessions are expressly provided for
herein with respect to the Temporary Space, and the Temporary Space shall not
be subject to any renewal or expansion rights of Tenant under the Lease.


 


C.                                     Upon termination of
the Temporary Space Term, Tenant shall vacate the Temporary Space and deliver
the same to Landlord in the same condition that the Temporary Space was
delivered to Tenant, ordinary wear and tear excepted and damage by Casualty
(defined in and subject to the terms of Section 16) excepted.  At the expiration or earlier termination of
the Temporary Space Term, Tenant shall remove all debris, all items of Tenant’s
personalty, and any trade


 


3





















 


fixtures of Tenant from the Temporary Space but Tenant
shall not be required to remove Cable. 
Tenant shall be fully liable for all damage Tenant or Tenant’s agents,
employees, contractors, or subcontractors cause to the Temporary Space.


 


D.                                    Tenant shall have no
right to hold over or otherwise occupy the Temporary Space at any time
following the expiration or earlier termination of the Temporary Space Term,
and in the event of such holdover, Landlord shall immediately be entitled to
institute dispossessory proceedings to recover possession of the Temporary
Space, without first providing notice thereof to Tenant.  In the event of holding over by Tenant after
expiration or termination of the Temporary Space Term without the written
authorization of Landlord, Tenant shall pay, for such holding over, 175% of the
monthly Base Rent due for the Temporary Space at the rate in effect immediately
preceding the expiration of the Temporary Space Term for each month or partial
month of holdover,
plus
all consequential damages that Landlord incurs as a result of the Tenant’s hold
over. During any such holdover, Tenant’s occupancy of the Temporary Space shall
be deemed that of a tenant at sufferance, and in no event, either during the
Temporary Space Term or during any holdover by Tenant, shall Tenant be
determined to be a tenant-at-will under applicable law.  While Tenant is occupying the Temporary
Space, Landlord or Landlord’s authorized agents shall be entitled to enter the
Temporary Space, upon reasonable notice, to display the Temporary Space to
prospective tenants.


 


IV.                                 ROOF SPACE FOR DISH/ANTENNA.


 


A.                                   Tenant shall have the right, in consideration
for payments of $0.00 per month
(the “Dish/Antenna Payments”), to
lease space on the roof of the Building for the purpose of installing (in
accordance with Section IX.C of the Lease), operating and maintaining a 36
inch dish/antenna or other communication device approved by the Landlord (the “Dish/Antenna”).  During any renewal Term of the Lease the
monthly Dish/Antenna Payments referenced above shall increase by the prevailing
monthly charges established from time to time for such Dish/Antenna. The
Dish/Antenna Payments shall constitute Additional Rent under the terms of the
Lease and Tenant shall be required to make these payments in strict compliance
with the terms of Section 4 of the Lease. 
The exact location of the space on the roof to be leased by Tenant shall
be designated by Landlord and shall not exceed 25 square feet (the “Roof Space”).  Landlord reserves the right to relocate the
Roof Space as reasonably necessary during the Term.  Landlord’s designation shall take into
account Tenant’s use of the Dish/Antenna. 
Notwithstanding the foregoing, Tenant’s right to install the
Dish/Antenna shall be subject to the approval rights of Landlord and Landlord’s
architect and/or engineer (not to be unreasonably withheld) with respect to the
plans and specifications of the Dish/Antenna, the manner in which the
Dish/Antenna is attached to the roof of the Building and the manner in which
any cables are run to and from the Dish/Antenna. The Dish/Antenna must be tagged with weatherproof labels showing
manufacturer, model, frequency range, and name of Tenant.  In addition, the cable between the
Dish/Antenna and Tenant’s suite must be tagged in the telecom closet on each
floor with a label showing Tenant’s name, phone number and suite number.  The precise specifications and a
general description of the Dish/Antenna along with all documents Landlord
reasonably requires to review the installation of the Dish/Antenna (the “Plans and Specifications”) shall be submitted
to Landlord for Landlord’s written approval no later than 20 days before Tenant
commences to install the Dish/Antenna. Tenant shall be solely responsible for
obtaining all necessary governmental and regulatory approvals and for the cost
of installing, operating, maintaining and removing the Dish/Antenna.  Tenant shall notify Landlord upon completion
of the installation of the Dish/Antenna. 
If Landlord determines that the Dish/Antenna equipment does not comply
with the approved Plans and Specifications, that the Building has been damaged
during installation of the Dish/Antenna or that the installation was defective,
Landlord shall notify Tenant of any noncompliance or detected problems and
Tenant immediately shall cure the defects. 
If the Tenant fails to immediately cure the defects, Tenant shall pay to
Landlord upon demand the cost, as reasonably determined by Landlord, of
correcting any defects and repairing any damage to the Building caused by such
installation.  If at any time Landlord,
in its sole discretion,  deems it
necessary, Tenant shall provide and install, at Tenant’s sole cost and expense,
appropriate


 


4





















 


aesthetic
screening, reasonably satisfactory to Landlord, for the Dish/Antenna (the “Aesthetic Screening”).


 


B.                                     Landlord agrees that Tenant, upon reasonable
prior written notice to Landlord, shall have access to the roof of the Building
and the Roof Space for the purpose of installing, maintaining, repairing and
removing the Dish/Antenna, the appurtenances and the Aesthetic Screening, if
any, all of which shall be performed by Tenant or Tenant’s authorized
representative or contractors, which shall be approved by Landlord, at Tenant’s
sole cost and risk. It is agreed, however, that only authorized engineers,
employees or properly authorized contractors of Tenant, FCC (defined below)
inspectors, or persons under their direct supervision will be permitted to have
access to the roof of the Building and the Roof Space.  Tenant further agrees to exercise firm
control over the people requiring access to the roof of the Building and the
Roof Space in order to keep to a minimum the number of people having access to
the roof of the Building and the Roof Space and the frequency of their visits.


 


C.                                     It is further understood and agreed that the
installation, maintenance, operation and removal of the Dish/Antenna, the
appurtenances and the Aesthetic Screening, if any, is not permitted to damage
the Building or the roof thereof, or interfere with the use of the Building and
roof by Landlord.  Tenant agrees to be
responsible for any damage caused to the roof or any other part of the
Building, which may be caused by Tenant or any of its agents or
representatives.


 


D.                                    Tenant agrees to install only equipment of
types and frequencies which will not cause unreasonable interference to
Landlord or existing tenants of the Building. 
In the event Tenant’s equipment causes such interference, Tenant will
change the frequency on which it transmits and/or receives and take any other
steps necessary to eliminate the interference.


 


E.                                      Tenant shall, at its sole cost and expense,
and at its sole risk, install, operate and maintain the Dish/Antenna in a good
and workmanlike manner, and in compliance with all Building, electric, communication,
and safety codes, ordinances, standards, regulations and requirements, now in
effect or hereafter promulgated, of the Federal Government, including, without
limitation, the Federal Communications Commission (the “FCC”), the Federal Aviation Administration
(“FAA”) or any successor agency of
either the FCC or FAA having jurisdiction over radio or telecommunications, and
of the state, city and county in which the Building is located.  Under this Lease, the Landlord and its agents
assume no responsibility for the licensing, operation and/or maintenance of
Tenant’s equipment.  Tenant has the
responsibility of carrying out the terms of its FCC license in all
respects.  The Dish/Antenna shall be
connected to Landlord’s power supply in strict compliance with all applicable
Building, electrical, fire and safety codes. 
Neither Landlord nor its agents shall be liable to Tenant for any
stoppages or shortages of electrical power furnished to the Dish/Antenna or the
Roof Space because of any act, omission or requirement of the public utility
serving the Building, or the act or omission of any other tenant, invitee or
licensee or their respective agents, employees or contractors, or for any other
cause beyond the reasonable control of Landlord, and Tenant shall not be
entitled to any rental abatement for any such stoppage or shortage of
electrical power.  Neither Landlord nor
its agents shall have any responsibility or liability for the conduct or safety
of any of Tenant’s representatives, repair, maintenance and engineering
personnel while in or on any part of the Building or the Roof Space.


 


F.                                      The Dish/Antenna, the appurtenances and the
Aesthetic Screening, if any, shall remain the personal property of Tenant, and
shall be removed by Tenant at its own expense at the expiration or earlier
termination of this Lease or Tenant’s right to possession hereunder.  Tenant shall repair any damage caused by such
removal, including the patching of any holes to match, as closely as possible,
the color surrounding the area where the equipment and appurtenances were
attached.  Tenant agrees to maintain all
of the Tenant’s equipment placed on or about the roof or in any other part of
the Building in proper operating condition and maintain same in satisfactory
condition as to appearance and safety in Landlord’s sole discretion.  Such maintenance and operation shall be
performed in a manner to avoid any interference with any other tenants or
Landlord.  Tenant agrees that at all
times during the Term, it will keep the roof of the Building and


 


5





















 


the
Roof Space free of all trash or waste materials produced by Tenant or Tenant’s
agents, employees or contractors.


 


G.                                     In light of the specialized nature of the
Dish/Antenna, Tenant shall be permitted to utilize the services of its choice
for installation, operation, removal and repair of the Dish/Antenna, the
appurtenances and the Aesthetic Screening, if any, subject to the reasonable
approval of Landlord.  Notwithstanding
the foregoing, Tenant must provide Landlord with prior written notice of any
such installation, removal or repair and coordinate such work with Landlord in
order to avoid voiding or otherwise adversely affecting any warranties granted
to Landlord with respect to the roof.  If
necessary, Tenant, at its sole cost and expense, shall retain any contractor
having a then existing warranty in effect on the roof to perform such work (to
the extent that it involves the roof), or, at Tenant’s option, to perform such
work in conjunction with Tenant’s contractor. 
In the event the Landlord contemplates roof repairs that could affect
Tenant’s Dish/Antenna, or which may result in an interruption of the Tenant’s
telecommunication service, Landlord shall formally notify Tenant at least 30
days in advance (except in cases of an emergency) prior to the commencement of
such contemplated work in order to allow Tenant to make other arrangements for
such service.


 


H.                                    Tenant shall not allow any provider of
telecommunication, video, data or related services (“Communication Services”) to locate any equipment on the roof
of the Building or in the Roof Space for any purpose whatsoever, nor may Tenant
use the Roof Space and/or Dish/Antenna to provide Communication Services to an
unaffiliated tenant, occupant or licensee of another building, or to facilitate
the provision of Communication Services on behalf of another Communication
Services provider to an unaffiliated tenant, occupant or licensee of the
Building or any other building.


 


I.                                         Tenant acknowledges that Landlord may at some
time establish a standard license agreement (the “License Agreement”) with respect to the use of roof space by
tenants of the Building.  Tenant, upon
request of Landlord, shall enter into such License Agreement with Landlord
provided that such agreement does not materially alter the rights of Tenant
hereunder with respect to the Roof Space.


 


J.                                        Tenant specifically acknowledges and agrees
that the terms and conditions of Section 13 of the Lease (Indemnity and Waiver
of Claims) shall apply with full force and effect to the Roof Space and any
other portions of the roof accessed or utilized by Tenant, its representatives,
agents, employees or contractors.


 


K.                                    At the expiration or earlier termination
of the Lease, Tenant shall, at Tenant’s sole cost, remove the Dish/Antenna, the
appurtenances and the Aesthetic Screening, if any, and restore the Building and
the Roof Space to the condition that existed prior to the installation of the
Dish/Antenna, the appurtenances and the Aesthetic Screening, if any.  In addition, if Tenant defaults under any of
the terms and conditions of this Section or the Lease, and Tenant fails to cure
said default within the time allowed by Section 18 of the Lease (Events of Default),
Landlord shall be permitted to exercise all remedies provided under the terms
of the Lease, including removing the Dish/Antenna, the appurtenances and the
Aesthetic Screening, if any, and restoring the Building and the Roof Space to
the condition that existed prior to the installation of the Dish/Antenna, the
appurtenances and the Aesthetic Screening, if any.  If Landlord removes the Dish/Antenna, the
appurtenances and the Aesthetic Screening, if any, as a result of an uncured
default, Tenant shall be liable for all costs and expenses Landlord incurs in
removing the Dish/Antenna, the appurtenances and the Aesthetic Screening, if
any, and repairing any damage to the Building, the roof of the Building and the
Roof Space caused by the installation, operation or maintenance of the
Dish/Antenna, the appurtenances, and the Aesthetic Screening, if any.


 


6





















 


EXHIBIT F-1


 


OUTLINE AND LOCATION OF TEMPORARY SPACE


 





 


7





















 


EXHIBIT G


 


PARKING AGREEMENT


 


This
Exhibit (the “Parking Agreement”)
is attached to and made a part of the Lease by and between CA-10960 WILSHIRE LIMITED PARTNERSHIP, a Delaware
limited partnership (“Landlord”)
and FASTCLICK, INC., a California corporation
(“Tenant”) for space in
the Building located at 10960 Wilshire Boulevard, Los Angeles, California.


 


1.                                       The capitalized terms used in this Parking
Agreement shall have the same definitions as set forth in the Lease to the
extent that such capitalized terms are defined therein and not redefined in
this Parking Agreement.  In the event of
any conflict between the Lease and this Parking Agreement, the latter shall
control.


 


2.                                       During the initial Term, Tenant shall have
the right, but not the obligation, to lease from Landlord and Landlord agrees to
lease to Tenant a total of up to 22
non-reserved parking spaces and Tenant shall have the obligation to lease from
Landlord and Landlord agrees to lease to Tenant a total of 4 reserved parking spaces in the parking
facility servicing the Building (“Parking
Facility”). During the initial Term, Tenant shall pay in advance,
concurrent with Tenant’s payment of monthly Base Rent, the prevailing monthly
charges established from time to time for parking in the Parking Facility.  Such charges shall be payable to Landlord or
such other entity as designated by Landlord, and shall be sent to the address
Landlord designates from time to time. The initial charge for such parking
spaces is $140.00 per non-reserved
parking pass, per month, inclusive of taxes and $210.00 per reserved parking pass, per month, inclusive of
taxes. No deductions from the monthly charge shall be made for days on which
the Parking Facility is not used by Tenant. Prior to the Commencement Date,
Tenant shall notify Landlord in writing of the number of non-reserved parking
spaces which Tenant initially elects to use during the Term, but in no event in
excess of the maximum number of non-reserved parking spaces set forth in this
Section 2.  Thereafter, Tenant may
increase or decrease the number of non-reserved parking spaces to be used by
Tenant pursuant to this Section 2 upon a minimum of 30 days prior written
notice to Landlord, provided that in no event may Tenant elect to use in excess
of the maximum number of non-reserved parking spaces set forth in this Section
2.  Tenant may, from
time to time request additional parking spaces, and if Landlord shall provide
the same, such parking spaces shall be provided and used on a month-to-month
basis, and otherwise on the foregoing terms and provisions, and at such
prevailing monthly parking charges as shall be established from time to
time.  Tenant, upon 30 days prior written
notice to Landlord and subject to availability, shall have a one time right to
convert up to 4 reserved parking spaces into 4 unreserved parking spaces.


 


3.                                       Tenant shall at all times comply with all
applicable ordinances, rules, regulations, codes, laws, statutes and
requirements of all federal, state, county and municipal governmental bodies or
their subdivisions respecting the use of the Parking Facility.  Landlord reserves the right to adopt, modify
and enforce reasonable rules (“Rules”)
governing the use of the Parking Facility from time to time including any
key-card, sticker or other identification or entrance system and hours of operation.  The Rules set forth herein are currently in
effect.  Landlord may refuse to permit
any person who violates such Rules to park in the Parking Facility, and any
violation of the Rules shall subject the car to removal from the Parking
Facility.


 


4.                                       Unless specified to the contrary above, the
parking spaces hereunder shall be provided on a non-designated “first-come,
first-served” basis.  Tenant acknowledges
that Landlord has no liability for claims arising through acts or omissions of
any independent operator of the Parking Facility.  Landlord shall have no liability whatsoever
for any damage to items located in the Parking Facility, nor for any personal
injuries or death arising out of any matter relating to the Parking Facility,
and in all events, Tenant agrees to look first to its insurance carrier and to
require that Tenant’s employees look first to their respective insurance
carriers for payment of any losses sustained in connection with any use of the
Parking Facility.  Tenant hereby waives
on behalf of its insurance carriers all rights of subrogation against Landlord
or Landlord’s agents.  Landlord reserves
the right to assign specific parking spaces, and to reserve parking spaces for
visitors, small cars, handicapped persons and for other tenants, guests of
tenants or other parties, which assignment and reservation or spaces may be
relocated as determined by Landlord from time to time, and Tenant and persons
designated by Tenant hereunder shall not park in any location designated for
such assigned or reserved parking spaces. 
Tenant acknowledges that the Parking Facility may be closed entirely or
in part in order to make


 


1





















 


repairs
or perform maintenance services, or to alter, modify, re-stripe or renovate the
Parking Facility, or if required by casualty, strike, condemnation, act of God,
governmental law or requirement or other reason beyond the operator’s
reasonable control.  In such event,
Landlord shall refund any prepaid parking fee hereunder, prorated on a per diem
basis.


 


5.                                       If Tenant shall default under this Parking
Agreement, the operator shall have the right to remove from the Parking
Facility any vehicles hereunder which shall have been involved or shall have
been owned or driven by parties involved in causing such default, without
liability therefor whatsoever.  In
addition, if Tenant shall default under this Parking Agreement, Landlord shall
have the right to cancel this Parking Agreement on 20 days’ written notice,
unless within such 20 day period, Tenant cures such default. Such cancellation
right shall be cumulative and in addition to any other rights or remedies
available to Landlord at law or equity, or provided under the Lease (all of
which rights and remedies under the Lease are hereby incorporated herein, as
though fully set forth).  Any default by
Tenant under the Lease shall be a default under this Parking Agreement, and any
default under this Parking Agreement shall be a default under the Lease.


 


RULES


 


(i)                                     Landlord reserves the right to establish and
change Parking Facility hours from time to time, although, as of the date of
this Lease, Tenant shall have access to the Parking Facility on a 24-hour
basis, 7 days a week, subject to the other terms of this Parking Agreement. Tenant shall not store or permit its
employees to store any automobiles in the Parking Facility without the prior
written consent of the operator.  Except
for emergency repairs, Tenant and its employees shall not perform any work on
any automobiles while located in the Parking Facility, or on the Property.  If it is necessary for Tenant or its
employees to leave an automobile in the Parking Facility overnight, Tenant
shall provide the operator with prior notice thereof designating the license
plate number and model of such automobile.


 


(ii)                                  Cars must be parked entirely within the stall
lines painted on the floor, and only small cars may be parked in areas reserved
for small cars.


 


(iii)                               All directional signs and arrows must be observed.


 


(iv)                              The speed limit shall be 5 miles per hour.


 


(v)                                 Parking spaces reserved for handicapped
persons must be used only by vehicles properly designated.


 


(vi)                              Parking is prohibited in all areas not expressly designated for
parking, including without limitation:


 


(a)                                  Areas not striped for parking


(b)                                 aisles


(c)                                  where “no parking” signs are posted


(d)                                 ramps


(e)                                  loading zones


 


(vii)                           Parking stickers, key cards or any other devices or forms of
identification or entry supplied by the operator shall remain the property of
the operator.  Such 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. 
Parking passes and devices are not transferable and any pass or device
in the possession of an unauthorized holder will be void.


 


(viii)                        Monthly fees shall be payable in advance prior to the first day of each
month.  Failure to do so will
automatically cancel parking privileges and a charge at the prevailing daily
parking rate will be due.  No deductions
or allowances from the monthly rate will be made for days on which the Parking
Facility is not used by Tenant or its designees.


 


(ix)                                Parking Facility managers or attendants are not authorized to make or
allow any exceptions to these Rules.


 


2





















 


(x)                                   Every parker is required to park and lock
his/her own car.


 


(xi)                                Loss or theft of parking pass, identification, key cards or other such
devices must be reported to Landlord and to the Parking Facility manager
immediately.  Any parking devices
reported lost or stolen found on any authorized car will be confiscated and the
illegal holder will be subject to prosecution. 
Lost or stolen passes and devices found by Tenant or its employees must
be reported to the office of the Parking Facility immediately.


 


(xii)                             Washing, waxing, cleaning or servicing of any vehicle by the customer
and/or his agents is prohibited.  Parking
spaces may be used only for parking automobiles.


 


(xiii)                          Tenant agrees to acquaint all persons to whom Tenant assigns a parking
space with these Rules.


 


6.                                       TENANT ACKNOWLEDGES AND AGREES THAT, TO THE
FULLEST EXTENT PERMITTED BY LAW, LANDLORD SHALL NOT BE RESPONSIBLE FOR ANY LOSS
OR DAMAGE TO TENANT OR TENANT’S PROPERTY (INCLUDING, WITHOUT LIMITATIONS, ANY
LOSS OR DAMAGE TO TENANT’S AUTOMOBILE OR THE CONTENTS THEREOF DUE TO THEFT,
VANDALISM OR ACCIDENT) ARISING FROM OR RELATED TO TENANT’S USE OF THE PARKING
FACILITY OR EXERCISE OF ANY RIGHTS UNDER THIS PARKING AGREEMENT, WHETHER OR NOT
SUCH LOSS OR DAMAGE RESULTS FROM LANDLORD’S ACTIVE NEGLIGENCE OR NEGLIGENT
OMISSION.  THE LIMITATION ON LANDLORD’S
LIABILITY UNDER THE PRECEDING SENTENCE SHALL NOT APPLY HOWEVER TO LOSS OR
DAMAGE ARISING DIRECTLY FROM LANDLORD’S WILLFUL MISCONDUCT.


 


7.                                       Without limiting the provisions of
Paragraph 6 above, Tenant hereby voluntarily releases, discharges, waives and
relinquishes any and all actions or causes of action for personal injury or
property damage occurring to Tenant arising as a result of parking in the Parking
Facility, or any activities incidental thereto, wherever or however the same
may occur, and further agrees that Tenant will not prosecute any claim for
personal injury or property damage against Landlord or any of its officers,
agents, servants or employees for any said causes of action.  It is the intention of Tenant by this
instrument, to exempt and relieve Landlord from liability for personal injury
or property damage caused by negligence.


 


8.                                       The provisions of Section 20 of the
Lease are hereby incorporated by reference as if fully recited.


 


Tenant
acknowledges that Tenant has read the provisions of this Parking Agreement, has
been fully and completely advised of the potential dangers incidental to
parking in the Parking Facility and is fully aware of the legal consequences of
agreeing to this instrument.


 


3





















 


EXHIBIT H


 


ASBESTOS NOTIFICATION


 


This Exhibit is attached to and made a part of the Lease by and between
CA-10960 WILSHIRE LIMITED PARTNERSHIP, a Delaware
limited partnership (“Landlord”)
and FASTCLICK, INC., a California corporation
(“Tenant”) for space in
the Building located at 10960 Wilshire Boulevard, Los Angeles, California.


 


Asbestos-containing
materials (“ACMs”) were historically
commonly used in the construction of commercial buildings across the
country.  ACMs were commonly used because
of their beneficial qualities; ACMs are fire-resistant and provide good noise
and temperature insulation.


 


Some common types of
ACMs include surfacing materials (such as spray-on fireproofing, stucco,
plaster and textured paint), flooring materials (such as vinyl floor tile and
vinyl floor sheeting) and their associated mastics, carpet mastic, thermal
system insulation (such as pipe or duct wrap, boiler wrap and cooling tower
insulation), roofing materials, drywall, drywall joint tape and drywall joint
compound, acoustic ceiling tiles, transite board, base cove and associated
mastic, caulking, window glazing and fire doors.  These materials are not required under law to
be removed from any building (except prior to demolition and certain renovation
projects).  Moreover, ACMs generally are
not thought to present a threat to human health unless they cause a release of
asbestos fibers into the air, which does not typically occur unless
(1) the ACMs are in a deteriorated condition, or (2) the ACMs have been
significantly disturbed (such as through abrasive cleaning, or maintenance or
renovation activities).


 


It is possible that
some of the various types of ACMs noted above (or other types) are present at
various locations in the Building. 
Anyone who finds any such materials in the Building should assume them
to contain asbestos unless those materials are properly tested and found to be
otherwise.  In addition, under applicable
Law, certain of these materials are required to be presumed to contain asbestos
in the Building because the Building was built prior to 1981 (these materials
are typically referred to as “Presumed Asbestos Containing Materials” or “PACM”).  PACM consists of thermal system insulation
and surfacing material found in buildings constructed prior to 1981, and
asphalt or vinyl flooring installed prior to 1981.  If any thermal system
insulation, asphalt or vinyl flooring or surfacing materials are found to be
present in the Building, such materials must be considered PACM unless properly
tested and found otherwise.  In addition,
Landlord has identified the presence of certain ACMs in the Building.  For information about the specific types and
locations of these identified ACMs, please contact the Property Manager.  The Property Manager maintains records of the
Building’s asbestos information including any Building asbestos surveys,
sampling and abatement reports.  This
information is maintained as part of Landlord’s asbestos Operations and
Maintenance Plan (“O&M
Plan”).


 


The O&M Plan is
designed to minimize the potential of any harmful asbestos exposure to any
person in the Building. Because Landlord is not a physician, scientist or
industrial hygienist, Landlord has no special knowledge of the health impact of
exposure to asbestos.  Therefore,
Landlord hired an independent environmental consulting firm to prepare the
Building’s O&M Plan.  The O&M
Plan includes a schedule of actions to be taken in order to (1) maintain any
building ACMs in good condition, and (2) to prevent any significant disturbance
of such ACMs.  Appropriate Landlord
personnel receive regular periodic training on how to properly administer the
O&M Plan.


 


The O&M Plan
describes the risks associated with asbestos exposure and how to prevent such
exposure.  The O&M Plan describes
those risks, in general, as follows: 
asbestos is not a significant health concern unless asbestos fibers are
released and inhaled.  If inhaled,
asbestos fibers can accumulate in the lungs and, as exposure increases, the
risk of disease (such as asbestosis and cancer) increases.  However, measures to minimize exposure and
consequently minimize the accumulation of fibers, reduce the risk of adverse
health effects.


 


The O&M Plan also
describes a number of activities which should be avoided in order to prevent a
release of asbestos fibers.  In
particular, some of the activities which may present a health risk (because
those activities may cause an airborne release of asbestos fibers) include
moving, drilling, boring or otherwise disturbing ACMs.  Consequently, such activities should not be
attempted by any person not qualified to handle ACMs.  In other words, the approval of Building
management must be obtained


 





















 


prior to engaging in any such
activities.  Please contact the Property
Manager for more information in this regard. 
A copy of the written O&M Plan for the Building is located in the Building
Management Office and, upon your request, will be made available to tenants for
you to review and copy during Building Service Hours.


 


Because of the
presence of ACM in the Building, Landlord is also providing the following
warning, which is commonly known as a California Proposition 65 warning:


 


WARNING:  This Building contains asbestos, a chemical
known to the State of California to cause cancer.


 


Please contact the Property Manager with any questions regarding the
contents of this Exhibit.


 





















 


EXHIBIT I


 


LETTER OF CREDIT


 


 


[NAME OF FINANCIAL
INSTITUTION]


 


	
   

  	
  IRREVOCABLE STANDBY

  
	
   

  	
  LETTER OF CREDIT

  
	
   

  	
  NO. 

  
	
   

  	
  ISSUANCE DATE:

  
	
   

  	
  EXPIRATION DATE:

  
	
   

  	
  APPLICANT: FASTCLICK, INC., A CALIFORNIA CORPORATION

  



 


BENEFICIARY


 


CA-10960
WILSHIRE LIMITED PARTNERSHIP, A DELAWARE LIMITED PARTNERSHIP


3200 OCEAN PARK BOULEVARD


SUITE 100


SANTA MONICA, CALIFORNIA
90405


ATTN:
EQUITY OFFICE

PROPERTY MANAGER


 


LADIES/GENTLEMEN:


 


WE HEREBY ESTABLISH OUR
IRREVOCABLE STANDBY LETTER OF CREDIT IN YOUR FAVOR FOR THE ACCOUNT OF THE ABOVE
REFERENCED APPLICANT IN THE AMOUNT OF EIGHTY
FIVE THOUSAND AND NO/100 U.S. DOLLARS ($85,000.00) AVAILABLE FOR
PAYMENT AT SIGHT BY YOUR DRAFT DRAWN ON US WHEN ACCOMPANIED BY THE FOLLOWING
DOCUMENTS:


 


1.     THIS ORIGINAL IRREVOCABLE STANDBY LETTER OF CREDIT.


 


2.               BENEFICIARY’S
SIGNED AND DATED STATEMENT WORDED AS FOLLOWS: “THIS CERTIFIES THAT THE
UNDERSIGNED IS AN AUTHORIZED SIGNATORY OF THE BENEFICIARY OF BANK OF THE WEST
STANDBY LETTER OF CREDIT NO.            
AND THAT THIS DRAW IN THE AMOUNT OF                             
U.S. DOLLARS ($                        )
UNDER THE LETTER OF CREDIT NO.                                 
REPRESENTS FUNDS DUE AND OWING PURSUANT TO THE TERMS OF THAT CERTAIN LEASE BY
AND BETWEEN CA-10960 WILSHIRE LIMITED
PARTNERSHIP, A DELAWARE LIMITED PARTNERSHIP, AS LANDLORD, AND FASTCLICK, INC., A CALIFORNIA CORPORATION,
AS TENANT, AND/OR ANY AMENDMENT TO THE LEASE OR ANY OTHER AGREEMENT BETWEEN
SUCH PARTIES RELATED TO THE LEASE.”


 


IT
IS A CONDITION OF THIS IRREVOCABLE STANDBY LETTER OF CREDIT THAT IT WILL BE
AUTOMATICALLY EXTENDED WITHOUT AMENDMENT FOR A ONE YEAR PERIOD UPON THE
EXPIRATION DATE SET FORTH ABOVE AND UPON EACH ANNIVERSARY OF SUCH DATE, UNLESS
AT LEAST 60 DAYS PRIOR TO SUCH EXPIRATION DATE OR APPLICABLE ANNIVERSARY
THEREOF, WE SEND NOTICE TO YOU IN WRITING, BY CERTIFIED MAIL OR BY OVERNIGHT
COURIER SERVICE TO THE ABOVE ADDRESS, THAT WE ELECT NOT TO SO EXTEND THIS
IRREVOCABLE STANDBY LETTER OF CREDIT.


 


IN ADDITION, THE AMOUNT
AVAILABLE TO BE DRAWN UNDER THIS LETTER OF CREDIT SHALL BE REDUCED,
AUTOMATICALLY AND WITHOUT AMENDMENT, ON EACH DATE (EACH, AN “AUTOMATIC
REDUCTION DATE”) SET FORTH IN THE FOLLOWING AUTOMATIC REDUCTION SCHEDULED BY
THE AMOUNT (“THE REDUCTION AMOUNT”) SET FORTH OPPOSITE SUCH DATE. HOWEVER, SUCH
SCHEDULED REDUCTION AMOUNT(S) SHALL BE REDUCED, OR OFFSET, BY THE AMOUNT OF ANY
PAYMENT MADE BY US UNDER THIS LETTER OF CREDIT ON OR PRIOR TO THE RELEVANT
AUTOMATIC REDUCTION DATE (UNTIL SUCH PAYMENT AMOUNT HAS BEEN FULLY OFFSET
AGAINST SUCH REDUCTION AMOUNT(S)).”


 





















 


AUTOMATIC
REDUCTION SCHEDULE


 


	
  AUTOMATIC REDUCTION DATE

  	
   

  	
  REDUCTION AMOUNT

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  1st
  day of the 25th full calendar month of the Term

  	
   

  	
  $

  	
  63,750.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  1st
  day of the 37th full calendar month of the Term

  	
   

  	
  $

  	
  42,500.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  1st
  day of the 49th full calendar month of the Term

  	
   

  	
  $

  	
  21,250.00

  	
   

  



 


IN ADDITION TO THE
FOREGOING, WE UNDERSTAND AND AGREE THAT YOU SHALL BE ENTITLED TO DRAW UPON THIS
IRREVOCABLE STANDBY LETTER OF CREDIT IN THE EVENT THAT WE ELECT NOT TO EXTEND
THIS IRREVOCABLE STANDBY LETTER OF CREDIT YOU MAY DRAW HEREUNDER BY MEANS OF
YOUR DRAFT(S) AS ABOVE ACCOMPANIED BY YOUR SIGNED AND DATED STATEMENT WORDED AS
FOLLOWS:


 


“THIS CERTIFIES THAT THE
UNDERSIGNED IS AN AUTHORIZED SIGNATORY OF THE BENEFICIARY OF BANK OF THE WEST
STANDBY LETTER OF CREDIT NO.          
AND THAT THE APPLICANT HAS FAILED TO PROVIDE AN ACCEPTABLE SUBSTITUTE
IRREVOCABLE STANDBY LETTER OF CREDIT IN ACCORDANCE WITH THE TERMS OF THAT
CERTAIN LEASE BY AND BETWEEN CA-10960
WILSHIRE LIMITED PARTNERSHIP, A DELAWARE LIMITED PARTNERSHIP, AS
LANDLORD, AND FASTCLICK, INC., A CALIFORNIA
CORPORATION, AS TENANT, AND/OR ANY AMENDMENT TO THE LEASE OR ANY
OTHER AGREEMENT BETWEEN SUCH PARTIES RELATED TO THE LEASE.”


 


WE FURTHER AGREE
THAT:  (A) UPON RECEIPT OF THE
DOCUMENTATION REQUIRED HEREIN, WE WILL HONOR YOUR DRAWS AGAINST THIS
IRREVOCABLE STANDBY LETTER OF CREDIT WITHOUT INQUIRY INTO THE ACCURACY OF
BENEFICIARY’S SIGNED STATEMENT AND REGARDLESS OF WHETHER APPLICANT DISPUTES THE
..CONTENT OF SUCH STATEMENT; (B) THIS IRREVOCABLE STANDBY LETTER OF CREDIT SHALL
PERMIT PARTIAL DRAWS AND, IN THE EVENT YOU ELECT TO DRAW UPON LESS THAN THE
FULL STATED AMOUNT HEREOF, THE STATED AMOUNT OF THIS IRREVOCABLE STANDBY LETTER
OF CREDIT SHALL BE AUTOMATICALLY REDUCED BY THE AMOUNT OF SUCH PARTIAL DRAW;
AND (C)  THIS LETTER OF CREDIT IS
TRANSFERABLE IN WHOLE BUT NOT IN PART. TRANSFER MAY ONLY BE EFFECT BY BANK OF
THE WEST ON OUR RECEIPT OF A REQUEST FOR FULL TRANSFER IN FORM REASONABLY
ACCEPTABLE TO US ACCOMPANIED BY THIS ORIGINAL LETTER OF CREDIT, AMENDMENTS
HERETO IF ANY, AND PAYMENT OF OUR TRANSFER COMMISSION IN EFFECT AT THE TIME OF
THE TRANSFER, BUT NOT TO EXCEED AN AMOUNT EQUAL TO 0.25% OF THE AMOUNT
AVAILABLE TO BE DRAWN UNDER THIS LETTER OF CREDIT.


 


THIS IRREVOCABLE STANDBY
LETTER OF CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY
CREDITS (1993 REVISION) ICC PUBLICATION NO. 500.


 


WE HEREBY ENGAGE WITH YOU
TO HONOR DRAFTS AND DOCUMENTS DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS OF
THIS IRREVOCABLE STANDBY LETTER OF CREDIT.


 


ALL COMMUNICATIONS TO US
WITH RESPECT TO THIS IRREVOCABLE STANDBY LETTER OF CREDIT MUST BE ADDRESSED TO
OUR OFFICE LOCATED AT 1977 SATURN STREET, MONTEREY PARK, CA 91755 TO THE
ATTENTION OF TEAM 2.


 


VERY TRULY YOURS,


 


	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
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