Exhibit 10.50





 







Exhibit 10.50

 


 

 


 

 

 


 

 


 



LEASE

 


 

 



10900 WILSHIRE, L.L.C.,

 



a Delaware limited liability company,

 



Landlord

 


 

 



and

 


 

 



CHROMADEX, INC.,

 



a California corporation,

 



Tenant

 


 

 



for

 


 

 



10900 Wilshire Boulevard

 



Los Angeles, California

 


 

 


 

 


 

 



July 6, 2017

 

 



 







 





 




TABLE OF CONTENTS






	


 

	


 

	


Page


	


ARTICLE 1

	


BASIC LEASE PROVISIONS

	


1


	


ARTICLE 2

	


PREMISES; TERM; RENT

	


2



	


Section 2.1

	


Lease of Premises; Rentable Square Feet of Premises and
Building

	


2



	


Section 2.2

	


Commencement Date

	


2



	


Section 2.3

	


Payment of Rent

	


3



	


Section 2.4

	


First Month’s Rent

	


3



	


ARTICLE 3

	


USE AND OCCUPANCY

	


4



	


ARTICLE 4

	


CONDITION OF THE PREMISES

	


4



	


ARTICLE 5

	


ALTERATIONS

	


4



	


Section 5.1

	


Tenant’s Alterations

	


4



	


Section 5.2

	


Manner and Quality of Alterations

	


5



	


Section 5.3

	


Removal of Tenant’s Property

	


5



	


Section 5.4

	


Mechanic’s Liens

	


5



	


Section 5.5

	


Labor Relations

	


5



	


Section 5.6

	


Tenant’s Costs

	


5



	


Section 5.7

	


Tenant’s Equipment

	


6



	


Section 5.8

	


Compliance

	


6



	


Section 5.9

	


Floor Load

	


6



	


ARTICLE 6

	


REPAIRS

	


6



	


Section 6.1

	


Landlord’s Repair and Maintenance

	


6



	


Section 6.2

	


Tenant’s Repair and Maintenance

	


6



	


Section 6.3

	


Reserved Rights

	


7



	


ARTICLE 7

	


INCREASES IN TAXES AND OPERATING EXPENSES

	


7



	


Section 7.1

	


Definitions

	


7



	


Section 7.2

	


Tenant’s Tax Payment

	


9



	


Section 7.3

	


Tenant’s Operating Payment

	


10


	


Section 7.4

	


Non-Waiver; Disputes

	


11


	


Section 7.5

	


Proration

	


11


	


Section 7.6

	


No Reduction in Rent

	


11


	


Section 7.7

	


Allocation of Operating Expenses and Taxes

	


11


	


Section 7.8

	


Intentionally Deleted

	


12


	


Section 7.9

	


Tenant's Payment of Certain Real Estate Taxes

	


12


	


ARTICLE 8

	


REQUIREMENTS OF LAW

	


13


	


Section 8.1

	


Compliance with Requirements

	


13


	


Section 8.2

	


Fire and Life Safety

	


14


	


Section 8.3

	


Required Disclosures Related to Accessibility
Standards

	


14


	


ARTICLE 9

	


SUBORDINATION

	


15







	


Section 9.1

	


Subordination and Attornment

	


15


	


Section 9.2

	


Mortgage or Superior Lease Defaults

	


16


	


Section 9.3

	


Tenant’s Termination Right

	


16


	


Section 9.4

	


Provisions

	


16


	


Section 9.5

	


Future Condominium Declaration

	


16






 

 



 






 





 


	


ARTICLE 10

	


SERVICES

	


16


	


Section 10.1

	


Electricity

	


16


	


Section 10.2

	


Excess Electricity

	


16


	


Section 10.3

	


Elevators

	


17


	


Section 10.4

	


Heating, Ventilation and Air Conditioning

	


17


	


Section 10.5

	


Overtime Freight Elevators and HVAC

	


17


	


Section 10.6

	


Cleaning

	


17


	


Section 10.7

	


Water

	


18


	


Section 10.8

	


Refuse Removal

	


18


	


Section 10.9

	


Signage

	


18



	


Section 10.10

	


Telecommunications

	


18



	


Section 10.11

	


Service Interruptions

	


18



	


Section 10.12

	


Supplemental HVAC

	


19



	


Section 10.13

	


Tenant's Security System

	


19



	


ARTICLE 11

	


INSURANCE; PROPERTY LOSS OR DAMAGE

	


20


	


Section 11.1

	


Tenant’s Insurance

	


20


	


Section 11.2

	


Waiver of Subrogation

	


21


	


Section 11.3

	


Restoration

	


22


	


Section 11.4

	


Landlord’s Termination Right

	


22


	


Section 11.5

	


Tenant’s Termination Right

	


23


	


Section 11.6

	


Final 18 Months

	


23


	


Section 11.7

	


Landlord’s Liability

	


23


	


ARTICLE 12

	


EMINENT DOMAIN

	


23


	


Section 12.1

	


Taking

	


23


	


Section 12.2

	


Awards

	


24


	


Section 12.3

	


Temporary Taking

	


24


	


ARTICLE 13

	


ASSIGNMENT AND SUBLETTING

	


24


	


Section 13.1

	


Consent Requirements

	


24


	


Section 13.2

	


Tenant’s Notice

	


25


	


Section 13.3

	


Intentionally Deleted

	


25


	


Section 13.4

	


Conditions to Assignment/Subletting

	


25


	


Section 13.5

	


Binding on Tenant; Indemnification of Landlord

	


27


	


Section 13.6

	


Tenant’s Failure to Complete

	


27


	


Section 13.7

	


Profits

	


27


	


Section 13.8

	


Transfers

	


28



	


Section 13.9

	


Assumption of Obligations

	


29



	


Section 13.10

	


Tenant’s Liability

	


29



	


Section 13.11

	


Listings in Building Directory

	


29



	


Section 13.12

	


Lease Disaffirmance or Rejection

	


29



	


ARTICLE 14

	


ACCESS TO PREMISES

	


30


	


Section 14.1

	


Landlord’s Access

	


30


	


Section 14.2

	


Building Name

	


30


	


Section 14.3

	


Light and Air

	


30


	


ARTICLE 15

	


DEFAULT

	


30


	


Section 15.1

	


Tenant’s Defaults

	


30


	


Section 15.2

	


Landlord’s Remedies

	


31


	


Section 15.3

	


Recovering Rent as It Comes Due

	


32


	


Section 15.4

	


Reletting on Tenant’s Behalf

	


32






 



 










 





 

 




	


Section 15.5

	


General

	


32


	


Section 15.6

	


Interest

	


33


	


Section 15.7

	


Other Rights of Landlord

	


33


	


ARTICLE 16

	


LANDLORD’S RIGHT TO CURE; FEES AND EXPENSES

	


33


	


ARTICLE 17

	


NO REPRESENTATIONS BY LANDLORD; LANDLORD’S
APPROVAL

	


34


	


Section 17.1

	


No Representations

	


34


	


Section 17.2

	


No Money Damages

	


34


	


Section 17.3

	


Reasonable Efforts

	


34


	


ARTICLE 18

	


END OF TERM

	


34


	


Section 18.1

	


Expiration

	


34


	


Section 18.2

	


Holdover Rent

	


34


	


ARTICLE 19

	


QUIET ENJOYMENT

	


35


	


ARTICLE 20

	


NO SURRENDER; NO WAIVER

	


35


	


Section 20.1

	


No Surrender or Release

	


35


	


Section 20.2

	


No Waiver

	


35


	


ARTICLE 21

	


WAIVER OF TRIAL BY JURY; COUNTERCLAIM

	


35


	


Section 21.1

	


Jury Trial Waiver

	


35


	


Section 21.2

	


Waiver of Counterclaim

	


35


	


ARTICLE 22

	


NOTICES

	


36


	


ARTICLE 23

	


RULES AND REGULATIONS

	


36


	


ARTICLE 24

	


BROKER

	


36


	


ARTICLE 25

	


INDEMNITY

	


36


	


Section 25.1

	


Waiver of Liability

	


36


	


Section 25.2

	


Tenant’s Indemnity

	


37


	


Section 25.3

	


Landlord’s Indemnity

	


37


	


Section 25.4

	


Defense and Settlement

	


37


	


ARTICLE 26

	


MISCELLANEOUS

	


37


	


Section 26.1

	


Delivery

	


37


	


Section 26.2

	


Transfer of Real Property

	


37



	


Section 26.3

	


Limitation on Liability

	


38


	


Section 26.4

	


Rent

	


38



	


Section 26.5

	


Entire Document

	


38



	


Section 26.6

	


Governing Law

	


38



	


Section 26.7

	


Unenforceability

	


38



	


Section 26.8

	


Lease Disputes

	


38



	


Section 26.9

	


Landlord’s Agent

	


38



	


Section 26.10

	


Estoppel

	


39



	


Section 26.11

	


Certain Interpretational Rules

	


39



	


Section 26.12

	


Parties Bound

	


39



	


Section 26.13

	


Memorandum of Lease

	


39



	


Section 26.14

	


Counterparts; Execution By Telefacsimile or PDF format

	


39








 



 










 






 







	


Section 26.15

	


Survival

	


39



	


Section 26.16

	


Code Waivers

	


39



	


Section 26.17

	


Inability to Perform

	


40



	


Section 26.18

	


Substitution of Other Premises

	


40



	


Section 26.19

	


Financial Statements

	


40



	


Section 26.20

	


Development of the Real Property

	


40



	


Section 26.21

	


Tax Status of Beneficial Owner

	


41


	


Section 26.22

	


Authority

	


41


	


Section 26.23

	


Attorneys' Fees

	


41


	


Section 26.24

	


Abatement Event

	


41


	


ARTICLE 27

	


SECURITY DEPOSIT

	


42


	


Section 27.1

	


Security Deposit

	


42


	


Section 27.2

	


Application of Security

	


42


	


Section 27.3

	


Transfer

	


42


	


ARTICLE 28

	


PARKING

	


43








 


Schedule
of Exhibits

 




Exhibit A

Floor Plan of
Premises





 




Exhibit B

Definitions





 




Exhibit C

Work
Letter





 




Exhibit D

Design
Standards





 




Exhibit E

Cleaning
Specifications





 




Exhibit F

Rules and
Regulations





 




Exhibit
G

Notice of Lease
Term Dates





 


 




 











 







LEASE

 


THIS
LEASE is made as of the 6th day of July, 2017
(“Effective
Date”), between 10900 WILSHIRE, L.L.C., a Delaware
limited liability company (“Landlord”), and CHROMADEX, INC., a
California corporation (“Tenant”).

 


Landlord and Tenant
hereby agree as follows:

 



ARTICLE 1

 


BASIC LEASE
PROVISIONS


 


	


PREMISES

	

A
portion of the sixth (6th) floor of the
Building, currently known as Suite 601 and Suite 606, as more
particularly shown on Exhibit A. The Premises shall be
known as and designated as Suite 650 on and after the Effective
Date.


	


BUILDING

	

The
building, fixtures, equipment and other improvements and
appurtenances now located or hereafter erected, located or placed
upon the land known as 10900 Wilshire Boulevard, Los Angeles,
California.


	


REAL PROPERTY

	

The
Building, together with the plot of land upon which the Building,
the Building Parking Facility and the Common Areas
stand.


	


COMMENCEMENT DATE

	

The
date upon which the Premises shall be Ready for Occupancy (defined
in Section 3 of the Work Letter attached hereto as Exhibit C (the "Work Letter")).


	


EXPIRATION DATE

	

The
date which is the last day of the fifty (50) month following the
Commencement Date.


	


TERM

	

The
period commencing on the Commencement Date and ending on the
Expiration Date.


	


PERMITTED USES

	

Executive
and general offices consistent with the character of the Building
as a first-class office building.


	


BASE YEAR

	

Calendar
year 2018.


	


TENANT’S PROPORTIONATE SHARE

	

1.903%


	


AGREED AREA OF BUILDING

	

237,146 rentable
square feet, as mutually agreed by Landlord and
Tenant.


	


AGREED AREA OF PREMISES

	

4,512 rentable
(3,746 usable) square feet, as mutually agreed by Landlord and
Tenant.







 


 




 

-1-








 





 


 


 


	


FIXED RENT

	

 


 


Months


During
Term

	

 


 


 


Fixed
RentPer Annum

	

 


 


 


Fixed
RentPer Month

	

 


 


Annual
Fixed Rent Per Rentable


Square
Foot*


	
 

	

1-12**

	

$230,112.00

	

$19,176.00

	

$4.25


	
 

	

13-24*

	

$238,165.92

	

$19,847.16

	

$4.40


	
 

	

25-36

	

$246,501.72

	

$20,541.80

	

$4.55


	
 

	

37-50

	

$255,129.28

	

$21,260.77

	

$4.71


	
 

	

*The
calculations of the monthly Fixed Rent per rentable square foot set
forth above are approximate calculations based on a three and one
half percent (3.5%) increase per annum.


**Notwithstanding
the Fixed Rent schedule set forth above, (i) Tenant shall have no
obligation to pay Fixed Rent for the Premises during the initial
five (5) months of the Term, and (ii) Tenant shall only be
obligated to pay an amount equal to (a) $11,224.25 per month of the
Fixed Rent attributable to the Premises during the sixth
(6th)
through twelfth (12th) month of the
initial Term, (b) $11,617.10 per month of the Fixed Rent
attributable to the Premises during the thirteenth (13th) month of the
initial Term, and (c) $18,437.10 per month of the Fixed Rent
attributable to the Premises during the fourteenth (14th) month of
the initial Term.


	


ADDITIONAL RENT

	

All
sums other than Fixed Rent payable by Tenant to Landlord under this
Lease, including Tenant’s Tax Payment, Tenant’s
Operating Payment, late charges, overtime or excess service
charges, damages, and interest and other costs related to
Tenant’s failure to perform any of its obligations under this
Lease.


	


RENT

	

Fixed
Rent and Additional Rent, collectively.


	


INTEREST RATE

	

The
lesser of (i) four percent (4%) per annum above the
then-current Base Rate, and (ii) the maximum rate permitted by
applicable Requirements.


	


SECURITY DEPOSIT

	

$42,521.55.


	


TENANT’S ADDRESS FOR NOTICES

	

 


ChromaDex,
Inc.


10005
Muirlands Suite GIrvine, CA 92618


Attention:
Legal Department


	


LANDLORD’S ADDRESS FOR NOTICES

	

10900
Wilshire, L.L.C.c/o Tishman Speyer Properties, L.P.10900
Wilshire Boulevard, Suite 200Los Angeles, California 90024Attn:
Property Manager


	
 

	

With
copies to:


Tishman
Speyer Properties, L.P.45 Rockefeller PlazaNew York,
New York 10111Attn: Chief Legal Officer


and:


Tishman
Speyer Properties, L.P.45 Rockefeller PlazaNew York, New York
10111Attn: Chief Financial Officer


	


TENANT’S BROKER

	

Cushman
& Wakefield U.S., Inc.


	


LANDLORD’S AGENT

	

Tishman
Speyer Properties, L.P. or any other person or entity designated at
any time and from time to time by Landlord as Landlord’s
Agent.






 



All capitalized terms used in this Lease without definition are
defined in Exhibit B.

 



ARTICLE 2

 


PREMISES; TERM;
RENT

 


Section
2.1 Lease of Premises; Rentable Square Feet of
Premises and Building. Subject
to the terms of this Lease, Landlord leases to Tenant and Tenant
leases from Landlord the Premises for the Term. Landlord and Tenant
hereby agree that the rentable square feet and usable square feet
of the Premises and rentable square feet of the office area of the
Building have been agreed to by Landlord and Tenant and are as
stipulated in Article 1, above. In addition, Landlord grants
to Tenant the right to use, on a non-exclusive basis and in common
with others, the Common Areas. Except as otherwise provided in this
Lease, the manner in which the Common Areas are maintained and
operated shall be at the reasonable discretion of Landlord and the
use thereof shall be subject to the Rules and Regulations, which
Rules and Regulations shall not be unreasonably or discriminatorily
modified or enforced in a manner which will materially interfere
with the conduct of Tenant's Permitted Uses from the Premises or
Tenant's use of or access to the Premises, Building or Building
Parking Facility. Notwithstanding anything above to the contrary,
Landlord shall maintain and operate the Building in a first-class
manner and condition consistent with that of other Comparable
Buildings. Except when and where Tenant's right of access is
specifically excluded as the result of (i) an emergency, (ii) a
requirement by applicable Requirements, or (iii) a specific
provision set forth in this Lease, Tenant shall have the right of
access to the Premises, the Building, and the Building Parking
Facility twenty-four (24) hours per day, seven (7) days per week
during the Term.

 



Section 2.2 Commencement Date.

 



(a) In General. Upon the Effective Date, the terms and
provisions hereof shall be fully binding on Landlord and Tenant.
The Term of this Lease shall commence on the Commencement Date.
Unless sooner terminated or extended as may be hereinafter
provided, the Term shall end on the Expiration Date. Except as
expressly set forth in Sections 2.2(a) and (b), below, if Landlord
does not tender possession of the Premises to Tenant on or before
any particular date, for any reason whatsoever, Landlord shall not
be liable for any damage thereby, this Lease shall not be void or
voidable thereby, and the Term shall not commence until the
Commencement Date. Landlord shall be deemed to have tendered
possession of the Premises to Tenant upon the giving of notice by
Landlord to Tenant stating that the Premises are vacant, in the
condition required by this Lease, with the Tenant Improvements
Substantially Completed and available for Tenant’s legal
occupancy. No failure to tender possession of the Premises to
Tenant on or before any particular date shall affect any other
obligations of Tenant hereunder. At any time during the Term,
Landlord may deliver to Tenant a Notice of Lease Term Dates in the
form as set forth in Exhibit G, attached hereto, which notice Tenant shall
execute and return to Landlord within five (5) days of receipt
thereof.

 

 



 

-2-







 





 


(b) Abatement
of Fixed Rent.
Notwithstanding anything to the contrary set forth herein, but
subject to the terms of this Section 2.2(b), below, in the event
that Landlord fails to cause the Premises to be Ready for Occupancy
on or before August 1, 2017 (the "First Rent Credit Date") for any reason
other than an Unavoidable Delay or a Tenant Delay, then Tenant
shall be entitled to an abatement of one (1) day of Fixed Rent
attributable to the Premises for the number of days commencing as
of the day immediately following the Rent Credit Date and
continuing through the date that the Premises are Ready for
Occupancy. Additionally, Notwithstanding anything to the contrary
set forth herein, in the event that Landlord fails to cause the
Premises to be Ready for Occupancy on or before August 11, 2017
(the "Second Rent Credit Date") for any reason other
than an Unavoidable Delay or a Tenant Delay, then Tenant shall be
entitled to an abatement of two (2) days of Fixed Rent attributable
to the Premises for the number of days commencing as of the day
immediately following the Second Rent Credit Date and continuing
through the date that the Premises are Ready for Occupancy. Any
Fixed Rent credit that Tenant may be entitled to under this Section
2.2(b) shall be applied as a credit against the Fixed Rent
attributable to the Premises effective as of the sixth
(6th)
month of the initial Term. Except as set forth in Section 2.2(c),
below, Tenant's right to an abatement of Fixed Rent as set forth in
this Section 2.2(b) shall be Tenant's sole and exclusive remedy at
law or in equity for Landlord's failure to cause the Premises to be
Ready for Occupancy on or prior to the First Rent Credit Date and
the Second Rent Credit Date, as applicable. The First Rent Credit
Date and the Second Rent Credit Date shall each be extended to the
extent of any Unavoidable Delay or any Tenant Delay. Tenant hereby
acknowledges and agrees the First Rent Credit Date and the Second
Rent Credit Date shall both be extended on a day-for-day basis by
the period commencing on June 30, 2017 and continuing until the
date upon which this Lease is executed by Tenant and delivered to
Landlord.

 


(c) Tenant
Termination Right. Notwithstanding anything to the contrary
set forth herein, in the event that Landlord fails to cause the
Premises to be Ready for Occupancy on or before September 30, 2017
(the "Outside Date") for any
reason other than an Unavoidable Delay or a Tenant Delay, then,
except as otherwise set forth in Section 2.2(b), the sole remedy of
Tenant for such failure shall be the right to deliver a notice to
Landlord (a "Election
Notice") electing to terminate this Lease effective upon the
date occurring five (5) Business Days following receipt by Landlord
of the Election Notice (the "Effective Termination Date"). The
Election Notice must be delivered by Tenant to Landlord, if at all,
not earlier than the Outside Date (as the same may be extended
pursuant to the terms of Section 2.2(c), below) nor later than five
(5) Business Days after the Outside Date. In the event that Tenant
fails to deliver to Landlord the Election Notice within five (5)
Business Days following the Outside Date, then Tenant shall be
deemed to have waived its right to terminate the Lease pursuant to
the terms of this Section 2.2(c). The Outside Date shall be
extended to the extent of any delay or delays caused by an
Unavoidable Delay and any Tenant Delay. Upon any termination as set
forth in this Section 2.2(c), Landlord and Tenant shall be relieved
from any and all liability to each other resulting hereunder except
that Landlord shall return to Tenant any prepaid rent and the
Security Deposit (to the extent the same has been paid by Tenant).
Tenant hereby acknowledges and agrees that the Outside Date shall
be extended on a day-for-day basis by the period commencing on June
30, 2017 and continuing until the date upon which this Lease is
executed by Tenant and delivered to Landlord.

 



Section 2.3 Payment of Rent.

 


(a) Tenant
shall pay to Landlord, without notice or demand, and without any
set-off, counterclaim, abatement or deduction whatsoever, except as
may be expressly set forth in this Lease, in lawful money of the
United States by check or wire transfer of funds, (i) Fixed
Rent in equal monthly installments, in advance, on the first
(1st) day
of each month during the Term, commencing on the Commencement Date,
and (ii) Additional Rent, at the times and in the manner set
forth in this Lease.

 


Section
2.4 First Month’s Rent. Tenant shall pay an amount equal to $11,224.25
upon the execution of this Lease (“Advance Rent”). The Advance Rent shall be credited
towards Fixed Rent for the sixth (6th) month of the initial
Term.

 



 

-3-







 





 

 



ARTICLE 3

 


USE AND OCCUPANCY

 


Tenant
shall use and occupy the Premises for the Permitted Uses and for no
other purpose. Tenant shall not use or occupy or permit the use or
occupancy of any part of the Premises in a manner constituting a
Prohibited Use. Tenant further covenants and agrees that Tenant
shall not use, or suffer or permit any person or persons to use,
the Premises or any part thereof for any use or purpose contrary to
the provisions of the Rules and Regulations set forth in
Exhibit F, attached hereto,
or in violation of any applicable Requirements. Tenant shall not do
or permit anything to be done in or about the Premises, (including,
without limitation, the installation or use of any Alterations
(defined in Section 5.1, below), Equipment defined in Section 5.7,
below) or any other furniture, fixture and equipment, or
Supplemental HVAC Systems (defined in Section 10.12, below) in the
Premises), which will in any way damage the Building, or obstruct
or interfere with the rights of other tenants or occupants of the
Building, or injure or annoy them by reason of noise, odors, or
vibrations. If Tenant uses the Premises for a purpose constituting
a Prohibited Use, violating any Requirement or the terms of this
Article 3, or causing the Real Property to be in violation of any
Requirement or the terms of this Article 3, then Tenant shall
promptly discontinue such use upon notice of such violation.
Tenant, at its expense, shall procure and at all times maintain and
comply with the terms and conditions of all licenses and permits
required for the lawful conduct of the Permitted Uses in the
Premises.

 



ARTICLE 4

 


CONDITION OF THE
PREMISES

 


Tenant
has inspected the Premises and agrees, except as otherwise
specifically provided in the Work Letter and this Lease (a) to
accept possession of the Premises in the condition existing on the
Commencement Date “as is”, and (b) Landlord has no
obligation to perform any work, supply any materials, incur any
expense or make any alterations or improvements to prepare the
Premises for Tenant’s occupancy. Subject to the terms of this
Lease and the Work Letter and Landlord's on-going repair and
maintenance obligations, as and to the extent set forth in this
Lease, Tenant’s occupancy of any part of the Premises shall
be conclusive evidence, as against Tenant, that Tenant has accepted
possession of the Premises in its then current condition and at the
time such possession was taken, the Premises and the Real Property
were in a good and satisfactory condition as required by this
Lease.

 



ARTICLE 5

 


ALTERATIONS

 

Section
5.1 Tenant’s Alterations.

 


(a) Tenant
shall have the right, without Landlord's prior written consent, but
upon five (5) Business Days prior written notice to Landlord
(which notice shall contain a description of the contemplated
work), to make strictly cosmetic, non-structural additions and
alterations, such as painting, wall coverings and floor coverings
to the Premises that (i) do not involve the expenditure of
more than Twenty-Five Thousand and No/100 Dollars ($25,000.00)
in the aggregate in any twelve (12) month period, and
(ii) do not contain a Design Problem (defined below) (the
foregoing additions and alterations described in this sentence are
collectively referred to herein as "Decorative Alterations"). Except in
connection with Decorative Alterations, Tenant shall not make any
alterations, additions or other physical changes in or about the
Premises (collectively, “Alterations”) without
Landlord’s prior consent, which consent shall not be
unreasonably withheld, conditioned or delayed; provided, that it
shall be deemed reasonable for Landlord to withhold its consent to
any Alterations that contain a Design Problem. A "Design Problem" is defined as and will
be deemed to exist if any Alterations (i) are structural and
adversely affect any Building Systems, (ii) are visible from
outside of the Premises or affect the exterior appearance of the
Building, (iii) affect the certificate of occupancy issued for
the Building or the Premises, and/or (iv) violate any
Requirement.

 

 



 

-4-







 





 

 


(b) Plans
and Specifications. Prior to making any Alterations (other
than Decorative Alterations), Tenant, at its expense, shall
(i) submit to Landlord for its approval in accordance with
Section 5.1(a) above, detailed plans and specifications
(“Plans”) of
each proposed Alteration (other than Decorative Alterations), and
with respect to any Alteration affecting any Building System,
evidence that the Alteration has been designed by, or reviewed and
approved by, Landlord’s designated engineer for the affected
Building System, (ii) obtain all permits, approvals and
certificates required by any Governmental Authorities,
(iii) furnish to Landlord duplicate original policies or
certificates of worker’s compensation (covering all persons
to be employed by Tenant, and Tenant’s contractors and
subcontractors in connection with such Alteration), commercial
general liability (including property damage coverage) and business
auto insurance and Builder’s Risk coverage (as described in
Article 11) all in such form, with such companies, for such
periods and in such amounts as Landlord reasonably requires, naming
Landlord, Landlord’s Agent, any Lessor and any Mortgagee as
additional insureds, and (iv) furnish to Landlord reasonably
satisfactory evidence of Tenant’s ability to complete and to
fully pay for such Alterations (other than Decorative
Alterations).

 


(c) Governmental
Approvals. Tenant, at
its expense, shall, as and when required, promptly obtain
certificates of partial and final approval of such Alterations
required by any Governmental Authority and shall furnish Landlord
with copies thereof, together with “as-built” Plans for
such Alterations prepared on an AutoCAD Computer Assisted
Drafting and Design System (or such other system or medium as
Landlord may accept), using naming conventions issued by the
American Institute of Architects in June, 1990 (or such other
naming conventions as Landlord may accept) and magnetic computer
media of such record drawings and specifications translated in
DFX format or another format acceptable to
Landlord.

 


Section
5.2 Manner and Quality of
Alterations. All Alterations
shall be performed (a) in a good and workmanlike manner and
free from defects, (b) substantially in accordance with the
Plans, and by contractors designated by Landlord, (c) in
compliance with all Requirements, the terms of this Lease and all
construction procedures and regulations then prescribed by
Landlord, and (d) at Tenant's expense. All materials and equipment
shall be of first quality and at least equal to the applicable
standards for the Building then established by Landlord, and no
such materials or equipment (other than Tenant’s Property)
shall be subject to any lien or other encumbrance. Upon completion
of any Alterations hereunder, Tenant shall provide Landlord with
copies of all construction contracts, proof of payment for all
labor and materials, and final unconditional waivers of lien from
all contractors, subcontractors, materialmen, suppliers and others
having lien rights with respect to such Alterations, in the form
prescribed by California law. In addition, Tenant shall cause a
Notice of Completion to be recorded in the Office of the Recorder
of the county in which the Real Property is located in accordance
with Section 8182 of the Civil Code of the State of California or
any successor statute and shall timely give all notices required
pursuant to Section 8190 of the Civil Code of the State of
California or any successor statute.

 


Section
5.3 Removal of Tenant’s
Property. Tenant’s
Property shall remain the property of Tenant and Tenant may remove
the same at any time on or before the Expiration Date. On or before
the Expiration Date (provided Landlord notified Tenant that
Landlord may require the removal of any Specialty Alterations in
the Premises at the time Landlord approved or consented to such
Specialty Alterations), Tenant shall, unless otherwise directed by
Landlord, at Tenant’s expense, remove any Specialty
Alterations and close up any slab penetrations caused by Tenant in
the Premises. Tenant shall repair and restore, in a good and
workmanlike manner, any damage to the Premises or the Real Property
caused by Tenant’s removal of any Alterations or
Tenant’s Property or by the closing of any slab penetrations,
and upon default thereof, Tenant shall reimburse Landlord for
Landlord’s cost of repairing and restoring such damage. Any
Specialty Alterations or Tenant’s Property not so removed
shall be deemed abandoned and Landlord may retain or remove and
dispose of same, and repair and restore any damage caused thereby,
at Tenant’s cost and without accountability to Tenant. All
other Alterations shall become Landlord’s property upon
termination of this Lease.

 


Section
5.4 Mechanic’s Liens. Tenant, at its expense, shall discharge any lien
or charge recorded or filed against the Real Property in connection
with any work done or claimed to have been done by or on behalf of,
or materials furnished or claimed to have been furnished to,
Tenant, within ten (10) days after Tenant’s receipt of
notice thereof by payment, filing the bond required by law or
otherwise in accordance with applicable
Requirements.

 


Section
5.5 Labor Relations. Tenant shall not employ, or permit the
employment of, any contractor, mechanic or laborer, or permit any
materials to be delivered to or used in the Building, if, in
Landlord’s reasonable judgment, such employment, delivery or
use will interfere or cause any conflict with other contractors,
mechanics or laborers engaged in the construction, maintenance or
operation of the Building by Landlord, Tenant or others. If such
interference or conflict occurs, upon Landlord’s request,
Tenant shall cause all contractors, mechanics or laborers causing
such interference or conflict to leave the Building as soon as
reasonably possible.

 


Section
5.6 Tenant’s Costs. Tenant shall pay to Landlord, upon demand, all
out-of-pocket third costs actually incurred by Landlord in
connection with Alterations, including costs incurred in connection
with (a) Landlord’s review of the Alterations (i.e.,
cost of architectural and engineer review fees incurred in
connection with the request for approval thereof), except in
connection with Decorative Alterations, and (b) the provision
of Building personnel during the performance of any Alteration, to
operate elevators or otherwise to facilitate the Alterations after
Ordinary Business Hours if requested by Tenant. In addition, if the
Alterations exceed $25,000, Tenant shall pay to Landlord, upon
demand, an administrative fee in an amount equal to five percent
(5%) of the total cost of any Alterations other than Decorative
Alterations (which shall be inclusive of any of the foregoing third
party costs), in which event, at Landlord’s request, Tenant
shall deliver to Landlord reasonable supporting documentation
evidencing the hard and soft costs incurred by Tenant in designing
and constructing any Alterations.

 

 



 

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Section
5.7 Tenant’s Equipment. Tenant shall provide notice to Landlord prior to
moving any heavy machinery, heavy equipment, freight, bulky matter
or fixtures (collectively, “Equipment”) into or out of the Building and shall pay
to Landlord any reasonable and reasonably necessary out-of-pocket
costs actually incurred by Landlord in connection therewith. If
such Equipment requires special handling, Tenant agrees (a) to
employ only persons holding all necessary licenses to perform such
work, (b) all work performed in connection therewith shall
comply with all applicable Requirements and (c) such work
shall be done only during hours reasonably designated by
Landlord.

 


Section
5.8 Compliance.
The approval of Plans, or consent by Landlord to the making of any
Alterations, does not constitute Landlord’s representation
that such Plans or Alterations comply with any Requirements.
Landlord shall not be liable to Tenant or any other party in
connection with Landlord’s approval of any Plans, or
Landlord’s consent to Tenant’s performing any
Alterations, and Tenant's waiver and indemnity set forth in this
Lease shall specifically apply to the Plans or Alterations. If any
Alterations made by or on behalf of Tenant require Landlord to make
any alterations or improvements to any part of the Real Property in
order to comply with any Requirements, Tenant shall pay all
reasonable, out-of-pocket costs and expenses incurred by Landlord
in connection with such alterations or
improvements.

 


Section
5.9 Floor Load.
Tenant shall not place a load upon any floor of the Premises that
exceeds fifty (50) pounds per square foot “live
load”. Landlord reserves the right to reasonably designate
the position of all Equipment which Tenant wishes to place within
the Premises, and to place limitations on the weight
thereof.

 



ARTICLE 6

 


REPAIRS

 


Section
6.1 Landlord’s Repair and
Maintenance. Landlord shall
operate, maintain and, except as provided in Section 6.2
hereof, make all necessary repairs (both structural and
non-structural) to keep in first-class condition and operating
order (i) the Base Building (defined below) and (ii) the
Common Areas. For purposes of this Lease, the "Base Building" shall include, but not be
limited, to the following: (a) roof structure and membrane;
(b) exterior walls and glass; (c) floor/ceiling slabs and
other structural portions of the Building, including, without
limitation, the foundation, curtain wall, exterior glass, and
mullions, columns, beams, shafts (including elevator shafts); and
(d) Building Systems.

 



Section 6.2 Tenant’s Repair and
Maintenance. Subject to the
terms of Section 6.2, below, Tenant shall promptly, at its expense
and in compliance with Article 5, make all non-structural
repairs to the Premises and the fixtures, equipment and
appurtenances therein (including all electrical, plumbing, heating,
ventilation and air conditioning, sprinklers and life safety
systems in and serving the Premises from the point of connection to
the Building Systems) (collectively, “Tenant
Fixtures”) as and when
needed to preserve the Premises in good working order and
condition, except for reasonable wear and tear and subject to
Landlord's repair and maintenance obligations pursuant to the
express provisions of this Lease (but such obligation shall not
extend to the Based Building, except to the extent otherwise
required pursuant to this Section 6.2 or Section 8.1(a)
below). All damage to the Building or to any portion thereof, or to
any Tenant Fixtures, requiring structural or non-structural repair
caused by or resulting from any act, omission, neglect or improper
conduct of a Tenant Party or the moving of Tenant’s Property
or Equipment into, within or out of the Premises by a Tenant Party,
shall be repaired at Tenant’s expense by (i) Tenant, if
the required repairs are non-structural in nature and do not affect
any Building System, or (ii) Landlord, if the required repairs
are structural in nature, involve replacement of exterior window
glass or affect any Building System. All Tenant repairs shall be of
good quality utilizing new construction
materials.

 


Notwithstanding
anything set forth in this Section 6.2, above, to the contrary,
Landlord shall cause all electrical, plumbing, heating, ventilation
and air conditioning, sprinklers, life-alarm and life safety
systems in and serving the Premises from the point of connection to
the Building Systems which serve the Premises to be in good working
condition and repair upon the delivery of the Premises to Tenant.
The foregoing shall not be deemed to require Landlord to replace
any such systems, as opposed to repair any such systems. If it is
determined during the first twelve (12) months of the Term that any
of such systems were not in good working condition and repair as of
the date of Landlord's delivery of the Premises to Tenant, Landlord
shall not be liable to Tenant for any damages, but, Landlord, at no
cost to Tenant, shall perform such work or take such other action
as may be necessary to place the same in good working condition and
repair.

 



 

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Section
6.3 Reserved Rights. Landlord reserves the right to make all changes,
alterations, additions, improvements, repairs or replacements to
the Real Property, including the Building Systems, including
changing the arrangement or location of entrances or passageways,
doors and doorways, corridors, elevators, stairs, toilets or other
Common Areas (collectively, “Work of
Improvement”), as
Landlord deems necessary or desirable, provided that (a) the
level of any Building service shall not decrease in any material
respect from the level required of Landlord in this Lease as a
result thereof (other than temporary changes in the level of such
services during the performance of any such Work of Improvement),
and (b) Tenant is not deprived of access to or use of the
Premises for Permitted Use. Landlord shall use reasonable efforts
to minimize interference with Tenant’s use and occupancy of
the Premises during the performance of such Work of Improvement.
Subject to the foregoing, there shall be no Rent abatement (except
as otherwise provided in Section 26.24 below) or allowance to
Tenant for a diminution of rental value, no actual or constructive
eviction of Tenant, in whole or in part, no relief from any of
Tenant’s other obligations under this Lease, and no liability
on the part of Landlord by reason of inconvenience, annoyance or
injury to business arising from Landlord, Tenant or others
performing, or failing to perform, any Work of
Improvement.

 



ARTICLE 7

 


INCREASES IN TAXES AND
OPERATING EXPENSES

 


Section
7.1 Definitions. For the purposes of this Article 7, the
following terms shall have the meanings set forth
below:

 


(a) “Assessed
Valuation” shall mean the amount for which the Real
Property is assessed by the County Assessor of Los Angeles for the
purpose of imposition of Taxes.

 


(b) “Base
Operating Expenses” shall mean the Operating Expenses
for the Base Year.

 


(c) “Base
Taxes” shall mean the Taxes payable for the Base
Year.

 


(d) “Comparison
Year” shall mean each calendar year commencing
subsequent to the Base Year.

 



 

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(e) “Operating
Expenses” shall mean the aggregate of all costs and
expenses paid or incurred by or on behalf of Landlord in connection
with the ownership, operation, repair and maintenance of the Real
Property, including the rental value (at customary market rates) of
Landlord’s Building office and capital repairs, replacements,
and improvements (collectively "Capital Costs") incurred after the Base
Year only if such Capital Costs either (i) are reasonably
intended to result in a reduction in Operating Expenses (as for
example, a labor-saving improvement), provided the amount included
in Operating Expenses in any Comparison Year shall not exceed an
amount equal to the savings reasonably anticipated to result from
the installation and operation of such improvement, and/or
(ii) is made during any Comparison Year in compliance with
applicable Requirements, except for such Capital Costs to remedy a
condition existing prior to the Commencement Date, which a federal,
state or municipal governmental authority, if it had knowledge of
such condition prior to the Commencement Date, would have then
required to be remedied pursuant to the then-current applicable
Requirements in their form existing as of the Commencement Date.
Such Capital Costs shall be amortized (with interest at the Base
Rate) on a straight-line basis over its useful life in accordance
with sound real estate management and accounting principles,
consistently applied, and the amount included in Operating Expenses
in any Comparison Year shall be equal to the annual amortized
amount. Operating Expenses shall not include any Excluded Expenses.
If during all or part of the Base Year or any Comparison Year,
Landlord shall not furnish any particular item(s) of work or
service (which would otherwise constitute an Operating Expense) to
any occupable portions of the Building for any reason, then, for
purposes of computing Operating Expenses for such period, the
amount included in Operating Expenses for such period shall be
increased by an amount equal to the costs and expenses that would
have been reasonably incurred by Landlord during such period if
Landlord had furnished such item(s) of work or service to such
portion of the Building. If during all or part of the Base Year or
any Comparison Year, Landlord shall not furnish any particular
item(s) of work or service (which would otherwise constitute an
Operating Expense) to any leasable portions of the Building for any
reason, then, for purposes of computing Operating Expenses for such
period, the amount included in Operating Expenses for such period
shall be increased by an amount equal to the costs and expenses
that would have been reasonably incurred by Landlord during such
period if Landlord had furnished such item(s) of work or service to
such portion of the Building. In determining the amount of
Operating Expenses for the Base Year or any Comparison Year, if
less than ninety-five percent (95%) of the Building rentable area
is occupied by tenants at any time during any such Base Year or
Comparison Year, Operating Expenses that vary based on occupancy
shall be determined for such Base Year or Comparison Year, using
sound real estate management principles consistently applied, to be
an amount equal to the like expenses which would normally be
expected to be incurred had such occupancy been ninety-five percent
(95%) throughout the Base Year or such Comparison Year. To the
extent that any facilities and equipment located in and/or
personnel located at or serving the Real Property also serve any
other building in the surrounding area (including, without
limitation, Beverly Hills) which is owned or managed by an
affiliate of Landlord (each, a "Surrounding Building" and collectively,
the "Surrounding
Buildings"), and/or to the extent that any service furnished
to the Real Property is provided by facilities and equipment
located in and/or personnel located at or serving a Surrounding
Building, the cost of the use, operation, management, occupancy,
maintenance, repair, upgrade and, to the extent permitted by
clauses (i) and (ii) above (if applicable), replacement of such
facilities and equipment and the compensation of such personnel,
shall be deemed an Operating Expense of the Real Property, if and
to the same extent that such cost would have constituted an
Operating Expense had such facilities, equipment and personnel
either served only the Real Property or been located in or at the
Real Property, as applicable (i.e., Landlord shall not have the
right to pass through any Excluded Expenses to Tenant pursuant to
the terms of this last paragraph of Section 7.1(e)); provided,
however, to the extent that any service or goods are furnished or
supplied to both the Real Property and one or more Surrounding
Buildings pursuant to the same agreement or by the same facilities,
equipment and/or personnel, Operating Expenses for purposes of this
Lease shall be limited to that portion of the Operating Expenses
which is properly allocable, in Landlord's reasonable judgment, to
the Real Property.

 


(f) “Statement”
shall mean a statement containing a comparison of (i) Base
Taxes and the Taxes for any Comparison Year, or (ii) Base
Operating Expenses and the Operating Expenses for any Comparison
Year.

 



 

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(g) “Taxes”
shall mean (i) all real estate taxes, assessments, sewer and
water rents, rates and charges and other governmental levies,
impositions or charges, whether general, special, ordinary,
extraordinary, foreseen or unforeseen (including transit taxes,
leasehold taxes or taxes based upon the receipt of rent, including
gross receipts or sales taxes applicable to the receipt of rent),
which may be assessed, levied or imposed upon all or any part of
the Real Property, and (ii) all expenses (including reasonable
attorneys’ fees and disbursements and experts’ and
other witnesses’ fees) incurred in contesting any of the
foregoing or the Assessed Valuation of the Real Property (but such
expenses will not be included in Base Taxes if incurred during the
Base Year). Taxes shall not include (x) interest or penalties
incurred by Landlord as a result of Landlord’s late payment
of Taxes, or (y) franchise, transfer, gift, inheritance,
estate or net income taxes imposed upon Landlord. If Landlord
elects to pay any assessment in annual installments, then
(i) such assessment shall be deemed to have been so divided
and to be payable in the maximum number of installments permitted
by law, and (ii) there shall be deemed included in Taxes for
each Comparison Year the installments of such assessment becoming
payable during such Comparison Year, together with interest payable
during such Comparison Year on such installments and on all
installments thereafter becoming due as provided by law, all as if
such assessment had been so divided. If at any time the methods of
taxation prevailing on the Effective Date are altered so that in
lieu of or as an addition to the whole or any part of Taxes, there
shall be assessed, levied or imposed (1) a tax, assessment,
levy, imposition or charge based on the income or rents received
from the Real Property whether or not wholly or partially as a
capital levy or otherwise, (2) a tax, assessment, levy,
imposition or charge measured by or based in whole or in part upon
all or any part of the Real Property and imposed upon Landlord,
(3) a license fee measured by the rents, or (4) any other
tax, assessment, levy, imposition, charge or license fee however
described or imposed, including business improvement district
impositions, then all such taxes, assessments, levies, impositions,
charges or license fees or the part thereof so measured or based
shall be deemed to be Taxes.

 


Section
7.2 Tenant’s Tax Payment.

 


(a) If
the Taxes payable for any Comparison Year exceed the Base Taxes,
Tenant shall pay to Landlord Tenant’s Proportionate Share of
such excess (“Tenant’s
Tax Payment”). For each Comparison Year, Landlord
shall furnish to Tenant a statement setting forth Landlord’s
reasonable estimate of Tenant’s Tax Payment for such
Comparison Year (the “Tax
Estimate”). Tenant shall pay to Landlord on the first
(1st) day
of each month during such Comparison Year an amount equal to
one-twelfth (1/12) of the Tax Estimate for such Comparison Year. If
Landlord furnishes a Tax Estimate for a Comparison Year subsequent
to the commencement thereof, then (i) until the first
(1st) day
of the month following the month in which the Tax Estimate is
furnished to Tenant, Tenant shall pay to Landlord on the first
(1st) day of each
month an amount equal to the monthly sum payable by Tenant to
Landlord under this Section 7.2 during the last month of the
preceding Comparison Year, (ii) promptly after the Tax
Estimate is furnished to Tenant or together therewith, Landlord
shall give notice to Tenant stating whether the installments of
Tenant’s Tax Estimate previously made for such Comparison
Year were greater or less than the installments of Tenant’s
Tax Estimate to be made for such Comparison Year in accordance with
the Tax Estimate, and (x) if there shall be a deficiency,
Tenant shall pay the amount thereof within thirty (30) days
after demand therefor, or (y) if there shall have been an
overpayment, Landlord shall credit the amount thereof against
subsequent payments of Rent due hereunder, and (iii) on the
first (1st) day of the
month which is thirty (30) days following the month in which the
Tax Estimate is furnished to Tenant, and on the first
(1st) day
of each month thereafter throughout the remainder of such
Comparison Year, Tenant shall pay to Landlord an amount equal to
one-twelfth (1/12) of the Tax Estimate. Landlord shall have the
right, upon not less than 30 days prior written notice to Tenant,
to reasonably adjust the Tax Estimate from time to time during any
Comparison Year.

 


(b) As
soon as reasonably practicable after Landlord has determined the
Taxes for a Comparison Year, Landlord shall furnish to Tenant a
Statement for such Comparison Year. If the Statement shows that the
sums paid by Tenant under Section 7.2(a) exceeded the actual
amount of Tenant’s Tax Payment for such Comparison Year,
Landlord shall credit the amount of such excess against subsequent
payments of Rent due hereunder, or if no further payments of Rent
are due hereunder, Landlord shall refund such amounts directly to
Tenant. If the Statement for such Comparison Year shows that the
sums so paid by Tenant were less than Tenant’s Tax Payment
for such Comparison Year, Tenant shall pay the amount of such
deficiency within ten (10) Business Days after delivery of the
Statement to Tenant.

 



 

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(c) Only
Landlord may institute proceedings to reduce the Assessed Valuation
of the Real Property and the filings of any such proceeding by
Tenant without Landlord’s consent shall constitute an Event
of Default. Landlord shall not be obligated to file any application
or institute any proceeding seeking a reduction in Taxes or the
Assessed Valuation. Notwithstanding anything to the contrary set
forth in this Lease, the amount of Base Taxes and Taxes in any
Comparison Year shall be calculated without taking into account any
decreases in real estate taxes obtained in connection with
Proposition 8, and, therefore, the Base Taxes and/or Taxes in any
Comparison Year may be greater than those actually incurred by
Landlord, but shall, nonetheless, be the Taxes due under this
Lease; provided that (i) any reasonable costs and expenses incurred
by Landlord in securing any Proposition 8 reduction shall not be
deducted from Taxes nor included in Tenant's Tax Payment for
purposes of this Lease, and (ii) tax refunds under Proposition 8
shall not be deducted from Taxes nor refunded to Tenant, but rather
shall be the sole property of Landlord. Landlord and Tenant
acknowledge this Section 7.2(c) is not intended to in any way
affect the inclusion in Taxes of the statutory two percent (2.0%)
annual increase in Taxes (as such statutory increase may be
modified by subsequent legislation).

 


(d) Tenant
shall be responsible for any applicable occupancy or rent tax now
in effect or hereafter enacted and, if such tax is payable by
Landlord, Tenant shall pay such amounts to Landlord, within thirty
(30) days of Landlord’s demand therefor.

 


(e) Tenant
shall be obligated to make Tenant’s Tax Payment regardless of
whether Tenant may be exempt from the payment of any Taxes as the
result of any reduction, abatement or exemption from Taxes granted
or agreed to by any Governmental Authority, or by reason of
Tenant’s diplomatic or other tax-exempt status.

 


Section
7.3 Tenant’s Operating
Payment.

 


(a) If
the Operating Expenses payable for any Comparison Year exceed the
Base Operating Expenses, Tenant shall pay to Landlord
Tenant’s Proportionate Share of such excess
(“Tenant’s Operating
Payment”). For each Comparison Year, Landlord shall
furnish to Tenant a statement setting forth Landlord’s
reasonable estimate of Tenant’s Operating Payment for such
Comparison Year (the “Expense
Estimate”). Tenant shall pay to Landlord on the
first (1st) day of each
month during such Comparison Year an amount equal to one-twelfth
(1/12) of the Expense Estimate. If Landlord furnishes an Expense
Estimate for a Comparison Year subsequent to the commencement
thereof, then (i) until the first (1st) day of the
month following the month in which the Expense Estimate is
furnished to Tenant, Tenant shall pay to Landlord on the first
(1st) day of each
month an amount equal to the monthly sum payable by Tenant to
Landlord under this Section 7.3 during the last month of the
preceding Comparison Year, (ii) promptly after the Expense
Estimate is furnished to Tenant or together therewith, Landlord
shall give notice to Tenant stating whether the installments of
Tenant’s Operating Payment previously made for such
Comparison Year were greater or less than the installments of
Tenant’s Operating Payment to be made for such Comparison
Year in accordance with the Expense Estimate, and (x) if there
shall be a deficiency, Tenant shall pay the amount thereof within
ten (10) Business Days after demand therefor, or (y) if
there shall have been an overpayment, Landlord shall credit the
amount thereof against subsequent payments of Rent due hereunder,
and (iii) on the first (1st) day of the
month following the month in which the Expense Estimate is
furnished to Tenant, and on the first (1st) day of each
month thereafter throughout the remainder of such Comparison Year,
Tenant shall pay to Landlord an amount equal to one-twelfth (1/12)
of the Expense Estimate. Landlord shall have the right, upon not
less than thirty (30) days prior written notice to Tenant, to
reasonably adjust the Expense Estimate from time to time during any
Comparison Year.

 


(b) On
or before May 1st of each Comparison
Year, Landlord shall furnish to Tenant a Statement for the
immediately preceding Comparison Year. If the Statement shows that
the sums paid by Tenant under Section 7.3(a) exceeded the
actual amount of Tenant’s Operating Payment for such
Comparison Year, Landlord shall credit the amount of such excess
against subsequent payments of Rent due hereunder, or if no further
payments of Rent are due hereunder, Landlord shall refund such
amounts directly to Tenant. If the Statement shows that the sums so
paid by Tenant were less than Tenant’s Operating Payment for
such Comparison Year, Tenant shall pay the amount of such
deficiency within ten (10) Business Days after delivery of the
Statement to Tenant.

 

 



 

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Section
7.4 Non-Waiver; Disputes.

 


(a) Landlord’s
failure to render any Statement on a timely basis with respect to
any Comparison Year shall not prejudice Landlord’s right to
thereafter render a Statement with respect to such Comparison Year
or any subsequent Comparison Year, nor shall the rendering of a
Statement prejudice Landlord’s right to thereafter render a
corrected Statement for that Comparison Year. Notwithstanding the
foregoing, Tenant shall not be responsible for Taxes or Operating
Expenses attributable to any Comparison Year which are first billed
to Tenant more than two (2) calendar years after the
expiration of the applicable Comparison Year, provided that in any
event Tenant shall be responsible for Taxes and Operating Expenses
levied by any governmental authority or by any public utility
companies at any time following the expiration of the Term which
are attributable to any Comparison Year (provided that Landlord
delivers to Tenant any such bill for such amounts within two
(2) calendar years following Landlord's receipt of the bill
therefor).

 


(b) Within
one hundred eighty (180) days after receipt of a Statement by
Tenant, Tenant or an agent of Tenant may, after reasonable notice
to Landlord, inspect Landlord's records at Landlord's offices in
Los Angeles. Each Statement sent to Tenant shall be conclusively
binding upon Tenant unless Tenant (i) pays to Landlord when
due the amount set forth in such Statement, without prejudice to
Tenant’s right to dispute such Statement, and
(ii) within one hundred eighty (180) days after such
Statement is sent, sends a notice to Landlord objecting to such
Statement and specifying the reasons therefor. Tenant agrees that
Tenant will not employ, in connection with any dispute under this
Lease, any person or entity who is to be compensated in whole or in
part, on a contingency fee basis. If the parties are unable to
resolve any dispute as to the correctness of such Statement within
thirty (30) days following such notice of objection, either
party may refer the issues raised to a nationally recognized public
accounting firm selected by Landlord and reasonably acceptable to
Tenant, and the decision of such accountants shall be conclusively
binding upon Landlord and Tenant. In connection therewith, Tenant
and such accountants shall execute and deliver to Landlord a
confidentiality agreement, in form and substance reasonably
satisfactory to Landlord, whereby such parties agree not to
disclose to any third party any of the information obtained in
connection with such review. Tenant shall pay the fees and expenses
relating to such procedure, unless such accountants determine that
Landlord overstated Operating Expenses by more than five percent
(5%) for such Comparison Year, in which case Landlord shall pay
such fees and expenses. Except as provided in this
Section 7.4, Tenant shall have no right whatsoever to dispute,
by judicial proceeding or otherwise, the accuracy of any
Statement.

 


Section
7.5 Proration.
If the Commencement Date is not January 1, and provided that
the Commencement Date does not occur in the Base Year, Tenant's Tax
Payment and Tenant's Operating Payment for the Comparison Year in
which the Commencement Date occurs shall be apportioned on the
basis of the number of days in the year from the Commencement Date
to the following December 31. If the Expiration Date occurs on
a date other than December 31st,
Tenant's Tax Payment and Tenant's Operating Payment for the
Comparison Year in which such Expiration Date occurs shall be
apportioned on the basis of the number of days in the period from
January 1st
to the Expiration Date. Upon the
expiration or earlier termination of this Lease, any Additional
Rent under this Article 7 shall be adjusted or paid within
thirty (30) days after submission of the Statement for the
last Comparison Year.

 


Section
7.6 No Reduction in Rent. In no event shall any decrease in Operating
Expenses or Taxes in any Comparison Year below the Base Operating
Expenses or Base Taxes, as the case may be, result in a reduction
in the Fixed Rent or any other component of Additional Rent payable
hereunder.

 


Section
7.7 Allocation of Operating Expenses and
Taxes. Landlord shall have the
right, from time to time, to equitably allocate some or all of the
Operating Expenses and/or Taxes for the Real Property among
different portions or occupants of the Real Property and/or the
Building (the “Cost Pools”), in Landlord’s discretion. Such
Cost Pools may include, but shall not be limited to, the office
space tenants of the Real Property and/or the Building, and the
retail space tenants of the Real Property and/or the Building. The
Operating Expenses and/or Taxes allocable to each such Cost Pool
shall be allocated to such Cost Pool and charged to the tenants
within such Cost Pool in an equitable manner.

 

 



 

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Section
7.8 Intentionally Deleted.

 


Section
7.9 Tenant's Payment of Certain Real Estate
Taxes. Notwithstanding any provision to the contrary
contained in this Article 7, in the event that, at any time during
the initial Term, any sale, transfer or change in ownership of the
Building or Real Property or any part thereof occurs, or any change
in equity participation, or if capital improvements are made (each,
a "Reassessment Event"), and
as a result thereof, the Building or Real Property is reassessed
(the "Reassessment") for
real estate tax purposes by the appropriate governmental authority
pursuant to the terms of Proposition 13, then the terms of this
Section 7.9 shall apply.

 


(a) The
Tax Increase. For purposes of this Section 7.9, the term
"Tax Increase" shall mean
that portion of the real estate taxes, as calculated immediately
following the Reassessment, which is attributable solely to the
Reassessment. Accordingly, the term Tax Increase shall not include
any portion of real estate taxes, as calculated immediately
following the Reassessment, which (i) is attributable to the
assessment of the value of the Building, the Base Building or the
tenant improvements located in the Building immediately prior to
the Reassessment, or (ii) is attributable to assessments which were
pending immediately prior to the Reassessment, which assessments
were conducted during, and included in, such Reassessment, or which
assessments were otherwise rendered unnecessary following the
Reassessment, or (iii) is attributable to the annual inflationary
increase of real estate taxes (as such increases are determined by
statute from time to time) or (iv) is attributable to any real
estate taxes incurred during the Base Year (with such real estate
taxes incurred during the Base Year calculated without regard to
any Proposition 8 reduction in Taxes for the Base Year) or assessed
prior to the Reassessment.

 


(b) Protection.
During the initial Term only, Tenant shall not be obligated to pay
any portion of the Tax Increase attributable to any Reassessment
Event.

 


(c) Landlord's
Right to Purchase the Proposition 13 Protection Amount Attributable
to the Reassessment. The amount of real estate taxes which
Tenant is not obligated to pay or will not be obligated to pay
during the initial Term in connection with the Reassessment
pursuant to the terms of this Section 7.9, shall be sometimes
referred to hereafter as the "Proposition 13 Protection Amount." If,
in connection with a pending or anticipated Reassessment Event, the
occurrence of the Reassessment is reasonably foreseeable by
Landlord and the Proposition 13 Protection Amount attributable to
such Reassessment can be reasonably quantified or estimated for
each applicable Lease Year commencing with the Lease Year in which
the Reassessment will occur, the terms of this Section 7.9(c) shall
apply to such Reassessment. Upon notice to Tenant, Landlord shall
have the right to purchase the Proposition 13 Protection Amount
relating to the Reassessment within a reasonable period of time
prior to the pending or anticipated Reassessment Event by Landlord,
by paying to Tenant an amount equal to the Proposition 13 Purchase
Price (defined below). As used herein, "Proposition 13 Purchase Price" shall
mean the present value of the Proposition 13 Protection Amount
remaining during the applicable portion of the initial Term, as of
the date of payment of the Proposition 13 Purchase Price by
Landlord. Such present value shall be calculated (i) by using the
portion of the Proposition 13 Protection Amount attributable to
each such applicable remaining Lease Year (as though the portion of
such Proposition 13 Protection Amount benefited Tenant at the end
of each such Lease Year), as the amounts to be discounted, and (ii)
by using discount rates for each amount to be discounted equal to
six percent (6%) per annum. Upon such payment of the Proposition 13
Purchase Price, the provisions of Section 7.9(b) above shall not
apply to the Tax Increase. Since Landlord is estimating the
Proposition 13 Purchase Price because the Reassessment has not yet
occurred, then when such Reassessment occurs, if Landlord has
underestimated the Proposition 13 Purchase Price, then upon notice
by Landlord to Tenant, Tenant's rent next due shall be credited
with the amount of such underestimation, and if Landlord
overestimates the Proposition 13 Purchase Price, then upon notice
by Landlord to Tenant, rent next due shall be increased by the
amount of the overestimation.

 



 

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ARTICLE 8

 


REQUIREMENTS OF
LAW

 

Section
8.1 Compliance with Requirements.

 


(a) Tenant’s
Compliance. Except to
the extent otherwise specifically provided in this Lease, from and
after the Commencement Date, Tenant, at its expense, shall comply
with all Requirements applicable to the Premises and/or Tenant's
use or occupancy thereof; provided, however, that Tenant shall not
be obligated to comply with any Requirements related to or
otherwise requiring any alterations to the Base Building or Common
Areas unless the application of such Requirements arises from
(i) the specific manner and/or nature of Tenant’s use or
occupancy of the Premises, as distinct from general office use,
(ii) Alterations made by Tenant, or (iii) a breach by
Tenant of any provisions of this Lease. Any repairs or alterations
which are Tenant's responsibility hereunder and are required for
compliance with applicable Requirements shall be made at
Tenant’s expense (1) by Tenant in compliance with
Article 5 if such repairs or alterations are non-structural
and do not affect any Building System, and to the extent such
repairs or alterations do not affect areas outside the Premises, or
(2) by Landlord if such repairs or alterations are structural
or affect any Building System, or to the extent such repairs or
alterations affect areas outside the Premises. If Tenant obtains
knowledge of any failure to comply with any Requirements applicable
to the Premises, Tenant shall give Landlord prompt notice
thereof.

 


(b) Hazardous
Materials. Tenant shall
not cause or permit (i) any Hazardous Materials to be brought
into the Real Property, (ii) the storage or use of Hazardous
Materials in or about the Building or Premises (subject to the
second sentence of this Section 8.1(b)), or (iii) the escape,
disposal or release of any Hazardous Materials within or in the
vicinity of the Real Property. Nothing herein shall be deemed to
prevent Tenant’s use of any Hazardous Materials customarily
used in the ordinary course of office work, provided such use is in
accordance with all Requirements. Tenant shall be responsible, at
its expense, for all matters directly or indirectly based on, or
arising or resulting from the presence of Hazardous Materials in
the Real Property which is caused or permitted by a Tenant Party.
Tenant shall provide to Landlord copies of all communications
received by Tenant with respect to any Requirements relating to
Hazardous Materials, and/or any claims made in connection
therewith. Landlord or its agents may perform environmental
inspections of the Premises upon at least twenty-four (24) hours
prior notice to Tenant.

 


(c) Landlord’s
Compliance. Landlord
shall comply with (or cause to be complied with) all Requirements
applicable to the Base Building and the Common Areas which are not
the obligation of Tenant, to the extent that non-compliance would
(i) prohibit Tenant from obtaining or maintaining a
certificate of occupancy for the Premises, (ii)  unreasonably
and materially affect the safety of Tenant's employees or create a
significant health hazard for Tenant's employees, or (iii)
materially impair Tenant’s use and occupancy of the Premises
for the Permitted Uses. All costs incurred by Landlord in
connection with this Section 8.1(c) shall be included in
Operating Expenses to the extent permitted under Section 7.1
of this Lease.

 


(d) Landlord’s
Insurance. Tenant shall
not cause or permit any action or condition that would
(i) invalidate or conflict with Landlord’s insurance
policies or be inconsistent with the recommendations of any of the
issuers of such policies, (ii) violate applicable rules,
regulations and guidelines of the Fire Department, or any other
authority having jurisdiction over the Real Property,
(iii) cause an increase in the premiums of insurance for the
Real Property over that payable with respect to Comparable
Buildings, unless Tenant pays to Landlord the amount of such
increase, or (iv) result in Landlord’s insurance
companies’ refusing to insure the Real Property or any
property therein in amounts and against risks as reasonably
determined by Landlord. If insurance premiums increase as a result
of Tenant’s failure to comply with the provisions of this
Section 8.1, Tenant shall promptly cure such failure and shall
reimburse Landlord for the increased insurance premiums paid by
Landlord as a result of such failure by Tenant.

 



 

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Section
8.2 Fire and Life Safety. Subject to the terms of Section 6.2, above, and
Landlord's obligations under the Work Letter, Tenant shall maintain
in good order and repair the sprinkler, fire-alarm and life-safety
system in the Premises in accordance with this Lease including,
without limitation, the provisions of Section 6.2 respecting
any repairs affecting any Building System, the Rules and
Regulations and all Requirements. If the Fire Insurance Rating
Organization or any Governmental Authority or any of
Landlord’s insurers requires or recommends any modifications
and/or alterations be made or any additional equipment be supplied
in connection with the sprinkler system or fire alarm and
life-safety system serving the Building by reason of Tenant’s
business, any Alterations performed by Tenant or the location of
the partitions, Tenant’s Property, or other contents of the
Premises, Landlord (to the extent outside of the Premises) or
Tenant (to the extent within the Premises) shall make such
modifications and/or alterations, and supply such additional
equipment, in either case at Tenant’s
expense.

 


Section
8.3 Required Disclosures Related to Accessibility
Standards. For purposes of Section 1938(a) of the California
Civil Code, Landlord hereby discloses to Tenant, and Tenant hereby
acknowledges, that the Premises have not undergone inspection by a
person certified as a Certified Access Specialist (CASp). In
addition, the following notice is hereby provided pursuant to
Section 1938(e) of the California Civil Code: "A Certified Access
Specialist (CASp) can inspect the subject premises and determine
whether the subject premises comply with all of the applicable
construction-related accessibility standards under state law.
Although state law does not require a CASp inspection of the
subject premises, the commercial property owner or lessor may not
prohibit the lessee or tenant from obtaining a CASp inspection of
the subject premises for the occupancy or potential occupancy of
the lessee or tenant, if requested by the lessee or tenant. The
parties shall mutually agree on the arrangements for the time and
manner of the CASp inspection, the payment of the fee for the CASp
inspection, and the cost of making any repairs necessary to correct
violations of construction-related accessibility standards within
the premises." In furtherance of and in connection with such
notice: (i) Tenant, having read such notice and understanding
Tenant's right to request and obtain a CASp inspection and with
advice of counsel, hereby elects not to obtain such CASp inspection
and forever waives its rights to obtain a CASp inspection with
respect to the Premises, the Building and/or the Real Property to
the extent permitted by applicable Requirements now or hereafter in
effect; and (ii) if the waiver set forth in clause (i) hereinabove
is not enforceable pursuant to applicable Requirements now or
hereafter in effect, then Landlord and Tenant hereby agree as
follows (which constitute the mutual agreement of the parties as to
the matters described in the last sentence of the foregoing
notice): (A) Tenant shall have the one-time right to request for
and obtain a CASp inspection, which request must be made, if at
all, in a written notice delivered by Tenant to Landlord within
thirty (30) days after the Commencement Date; (B) any CASp
inspection timely requested by Tenant shall be conducted (1)
between the hours of 9:00 a.m. and 5:00 p.m. on any Business Day,
(2) only after ten (10) days' prior written notice to Landlord of
the date of such CASp inspection, (3) in a professional manner by a
CASp designated by Landlord and without any testing that would
damage the Premises, the Building or the Real Property in any way,
(4) in accordance with all of the provisions of this Lease
applicable to Tenant contracts for construction, and (5) at
Tenant's sole cost and expense, including, without limitation,
Tenant's payment of the fee for such CASp inspection, the fee for
any reports and/or certificates prepared by the CASp in connection
with such CASp inspection (collectively, the "CASp Reports") and all other costs and
expenses in connection therewith; (C) Landlord shall be an express
third party beneficiary of Tenant's contract with the CASp, and any
CASp Reports shall be addressed to both Landlord and Tenant; (D)
Tenant shall deliver a copy of any CASp Reports to Landlord within
two (2) Business Days after Tenant's receipt thereof; (E) any
information generated by the CASp inspection and/or contained in
the CASp Reports shall not be disclosed by Tenant to anyone other
than (I) contractors, subcontractors and/or consultants of Tenant,
in each instance who have a need to know such information and who
agree in writing not to further disclose such information, or (II)
any governmental entity, agency or other person, in each instance
to whom disclosure is required by applicable Requirements or by
regulatory or judicial process; (F) Tenant, at its sole cost and
expense, shall be responsible for making any improvements,
alterations, modifications and/or repairs to or within the Premises
to correct violations of construction-related accessibility
standards, including, without limitation, any violations disclosed
by such CASp inspection; and (G) if such CASp inspection identifies
any improvements, alterations, modifications and/or repairs
necessary to correct violations of construction-related
accessibility standards relating to those items of the Building
and/or the Real Property located outside the Premises, then Tenant
shall be responsible for performing any such improvements,
alterations, modifications and/or repairs as and to the extent
required by applicable Requirements to the extent provided Section
8.1(a) of this Lease and Landlord shall be responsible for
performing any such improvements, alterations, modifications and/or
repairs as and to the extent required by applicable Requirements to
the extent provided in Section 8.1(c) of this Lease.

 

 



 

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ARTICLE 9

 


SUBORDINATION

 


Section
9.1 Subordination and Attornment.

 


(a) This
Lease is subject and subordinate to all Mortgages and Superior
Leases, and, at the request of any Mortgagee or Lessor, Tenant
shall attorn to such Mortgagee or Lessor, its successors in
interest or any purchaser in a foreclosure sale.

 


(b) If
a Lessor or Mortgagee or any other person or entity shall succeed
to the rights of Landlord under this Lease, whether through
possession or foreclosure action or the delivery of a new lease or
deed, then at the request of the successor landlord and upon such
successor landlord’s written agreement to accept
Tenant’s attornment and to recognize Tenant’s interest
under this Lease, Tenant shall be deemed to have attorned to and
recognized such successor landlord as Landlord under this Lease.
The provisions of this Section 9.1 are self-operative and
require no further instruments to give effect hereto; provided,
however, that Tenant shall promptly execute and deliver any
instrument that such successor landlord may reasonably request
(i) evidencing such attornment, (ii) setting forth the
terms and conditions of Tenant’s tenancy, and
(iii) containing such other terms and conditions as may be
required by such Mortgagee or Lessor, provided such terms and
conditions do not increase the Rent, materially increase
Tenant’s other obligations or materially and adversely affect
Tenant’s rights under this Lease. Except as otherwise
provided in any such instrument requested by such successor
landlord or in any Superior Lease or Mortgage, upon such
attornment, this Lease shall continue in full force and effect as a
direct lease between such successor landlord and Tenant upon all of
the terms, conditions and covenants set forth in this Lease except
that such successor landlord shall not be

 


(i) liable
for any act or omission of Landlord (except to the extent such act
or omission continues beyond the date when such successor landlord
succeeds to Landlord’s interest and Tenant gives notice of
such act or omission);

 


(ii) subject
to any defense, claim, counterclaim, set-off or offset which Tenant
may have against Landlord;

 


(iii) bound
by any prepayment of more than one month’s Rent to any prior
landlord;

 


(iv) bound
by any obligation to make any payment to Tenant which was required
to be made prior to the time such successor landlord succeeded to
Landlord’s interest;

 


(v) bound
by any obligation to perform any work or to make improvements to
the Premises except for (x) repairs and maintenance required
to be made by Landlord under this Lease, and (y) repairs to
the Premises as a result of damage by fire or other casualty or a
partial condemnation pursuant to the provisions of this Lease, but
only to the extent that such repairs can reasonably be made from
the net proceeds of any insurance or condemnation awards,
respectively, actually made available to such successor
landlord;

 


(vi) bound
by any modification, amendment or renewal of this Lease made
without successor landlord’s consent to the extent such
consent was required;

 


(vii) liable
for the repayment of any security deposit or surrender of any
letter of credit, unless and until such security deposit actually
is paid or such letter of credit is actually delivered to such
successor landlord; or

 


(viii) liable
for the payment of any unfunded tenant improvement allowance,
refurbishment allowance or similar obligation.

 


(c) Tenant
shall from time to time within ten (10) days of request from
Landlord execute and deliver any documents or instruments that may
be reasonably required by any Mortgagee or Lessor to confirm any
subordination.

 

 



 

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Section
9.2 Mortgage or Superior Lease
Defaults. Any Mortgagee may
elect that this Lease shall have priority over the Mortgage and,
upon notification to Tenant by such Mortgagee, this Lease shall be
deemed to have priority over such Mortgage, regardless of the date
of this Lease. In connection with any financing of the Real
Property, Tenant shall consent to any reasonable modifications of
this Lease requested by any lending institution, provided such
modifications do not increase the Rent, materially increase the
other obligations, or materially and adversely affect the rights,
of Tenant under this Lease.

 


Section
9.3 Tenant’s Termination
Right. As long as any Superior
Lease or Mortgage exists, and except as otherwise provided in any
such Superior Lease or Mortgage, Tenant shall not seek to terminate
this Lease by reason of any act or omission of Landlord until
(a) Tenant shall have given notice of such act or omission to
all Lessors and/or Mortgagees, and (b) a reasonable period of
time shall have elapsed following the giving of notice of such
default and the expiration of any applicable notice or grace
periods (unless such act or omission is not capable of being
remedied within a reasonable period of time), during which period
such Lessors and/or Mortgagees shall have the right, but not the
obligation, to remedy such act or omission and thereafter
diligently proceed to so remedy such act or omission. Except as
otherwise provided in any such Superior Lease or Mortgage, if any
Lessor or Mortgagee elects to remedy such act or omission of
Landlord, Tenant shall not seek to terminate this Lease so long as
such Lessor or Mortgagee is proceeding with reasonable diligence to
effect such remedy.

 


Section
9.4 Provisions.
The provisions of this Article 9 shall (a) inure to the
benefit of Landlord, any future owner of the Building or the Real
Property, any Lessor or Mortgagee and any sublessor thereof and
(b) apply notwithstanding that, as a matter of law, this Lease
may terminate upon the termination of any such Superior Lease or
Mortgage.

 


Section
9.5 Future Condominium
Declaration. This Lease and
Tenant’s rights hereunder are and will be subject and
subordinate to any condominium declaration, by-laws and other
instruments (collectively, the “Declaration”) which may be recorded regardless of the
reason therefor, in order to permit a condominium form of ownership
of the Building pursuant to the California Subdivision Map Act or
any successor Requirement, provided that the Declaration does not
by its terms increase the Rent, materially increase Tenant’s
non-Rent obligations or materially and adversely affect
Tenant’s rights under this Lease. At Landlord’s
request, and subject to the foregoing proviso, Tenant will execute
and deliver to Landlord an amendment of this Lease confirming such
subordination and modifying this Lease to conform to such
condominium regime.

 



ARTICLE 10

 


SERVICES

 


Section
10.1 Electricity. Subject to any Requirements or any public
utility rules or regulations governing energy consumption, Landlord
shall furnish electricity to the Premises for Tenant’s use
for the Permitted Use in accordance with the Design Standards. If
Landlord reasonably determines by the use of an electrical
consumption survey or by other reasonable means that Tenant is
using electric current (including overhead fluorescent fixtures) in
excess of four (4) watts demand load per usable square foot of the
Premises per hour during Ordinary Business Hours
(“Excess Electrical
Usage”), then Landlord
shall have the right to charge Tenant an amount equal to
Landlord’s reasonable estimate of Tenant’s Excess
Electrical Usage, and shall have the further right to install an
electric current meter, sub-meter or check meter in the Premises (a
“Meter”) to measure the amount of electric current
consumed in the Premises. The cost of such Meter, special conduits,
wiring and panels needed in connection therewith and the
installation, maintenance and repair thereof shall be paid by
Tenant. Tenant shall pay to Landlord, from time to time, but no
more frequently than monthly, for its Excess Electrical Usage at
the Premises, plus Landlord’s charge equal to
fifteen percent (15%) of Tenant’s Excess Electrical
Usage for Landlord’s costs of maintaining, repairing and
reading such Meter. The rate to be paid by Tenant for submetered
electricity shall include any taxes or other charges in connection
therewith.

 


Section
10.2 Excess Electricity. Tenant shall at all times comply with the rules
and regulations of the utility company supplying electricity to the
Building. Tenant shall not use any electrical equipment which, in
Landlord’s reasonable judgment, would exceed the capacity of
the electrical equipment serving the Premises. If Landlord
determines that Tenant’s electrical requirements necessitate
installation of any additional risers, feeders or other electrical
distribution equipment (collectively, “Electrical
Equipment”), or if Tenant
provides Landlord with evidence reasonably satisfactory to Landlord
of Tenant’s need for excess electricity and requests that
additional Electrical Equipment be installed, Landlord shall, at
Tenant’s expense, install such additional Electrical
Equipment, provided that Landlord, in its sole judgment, determines
that (a) such installation is practicable and necessary,
(b) such additional Electrical Equipment is permissible under
applicable Requirements, and (c) the installation of such
Electrical Equipment will not cause permanent damage to the
Building or the Premises, cause or create a hazardous condition,
entail excessive or unreasonable alterations, interfere with or
limit electrical usage by other tenants or occupants of the
Building or exceed the limits of the switchgear or other facilities
serving the Building, or require power in excess of that available
from the utility company serving the Building. Any costs incurred
by Landlord in connection therewith shall be paid by Tenant within
ten (10) days after the rendition of a bill
therefor.

 

 



 

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Section
10.3 Elevators.
Landlord shall provide passenger elevator service to the Premises
twenty-four (24) hours per day, seven (7) days per week;
provided, however, Landlord may limit passenger elevator service to
one (1) passenger elevator during times other than Ordinary
Business Hours. Landlord shall provide at least one freight
elevator serving the Premises, available upon Tenant’s prior
request, on a non-exclusive “first come, first serve”
basis with other Building tenants, on all Business Days from
7:00 a.m. to 6:00 p.m., which hours of operation are
subject to change.

 


Section
10.4 Heating, Ventilation and Air
Conditioning. Landlord shall
furnish to the Premises heating, ventilation and air-conditioning
(“HVAC”) in accordance with the Design Standards
set forth in Exhibit D
during Ordinary Business Hours,
provided that to the extent Tenant desires that Landlord furnish
the Premises with HVAC during the Ordinary Business Hours on
Saturdays, then Tenant shall notify Landlord using the same method
as designated by Landlord for the providing of HVAC during Overtime
Periods (provided that Landlord’s providing of HVAC during
the Ordinary Business Hours on Saturday shall not be an Overtime
Period and Tenant shall not be separately charged for such HVAC
usage). Landlord shall have access to all air-cooling, fan,
ventilating and machine rooms and electrical closets and all other
mechanical installations of Landlord (collectively,
“Mechanical
Installations”), and
Tenant shall not construct partitions or other obstructions which
may interfere with Landlord’s access thereto or the moving of
Landlord’s equipment to and from the Mechanical
Installations. No Tenant Party shall at any time enter the
Mechanical Installations or tamper with, adjust, or otherwise
affect such Mechanical Installations. Landlord shall not be
responsible if the HVAC System fails to provide cooled or
heated air, as the case may be, to the Premises in accordance with
the Design Standards by reason of (i) any equipment installed
by, for or on behalf of Tenant, which has an electrical load in
excess of the average electrical load and human occupancy factors
for the HVAC System as designed, or (ii) any
rearrangement of partitioning or other Alterations made or
performed by, for or on behalf of Tenant. Tenant agrees that,
notwithstanding the proper operation of the HVAC System, Tenant's
failure to keep operable windows in the Premises closed, and
depending on the position of the sun during daylight hours, to
lower the blinds, may affect the HVAC System's ability to meet the
Design Standards. Tenant shall cooperate with Landlord and shall
abide by the rules and regulations which Landlord may reasonably
prescribe for the proper functioning and protection of the
HVAC System.

 


Section
10.5 Overtime Freight Elevators and
HVAC. The Fixed Rent does not
include any charge to Tenant for the furnishing of any freight
elevator service or HVAC to the Premises during any periods other
than as set forth in Section 10.3 and Section 10.4
(“Overtime
Periods”). If Tenant
desires any such services during Overtime Periods, Tenant shall
deliver notice to the Building office requesting such services at
least 24 hours prior to the time Tenant requests such services
to be provided; provided, however, that Landlord shall use
reasonable efforts to arrange such service on such shorter notice
as Tenant shall provide. If Landlord furnishes freight elevator
during Overtime Periods, Tenant shall pay to Landlord the cost
thereof at the then established rates for such services in the
Building from time to time. If Landlord furnishes HVAC service
during Overtime Periods, Tenant shall pay to Landlord the actual,
out-of-pocket cost thereof for such HVAC service to Tenant, plus a
charge for reasonable wear and tear, and an administration fee (the
current rate for 2017 is $59.00 per hour, per floor for HVAC
service, which rate is inclusive of an administration
fee).

 


Section
10.6 Cleaning.
Landlord shall cause the Premises (excluding any portions thereof
used for the storage, preparation, service or consumption of food
or beverages, as an exhibition area or classroom, for storage, as a
shipping room, mail room or for similar purposes, for private
bathrooms, showers or exercise facilities, as a trading floor, or
primarily for operation of computer, data processing, reproduction,
duplicating or similar equipment) to be cleaned during Business
Days, substantially in accordance with the standards set forth
in Exhibit E.
Any areas of the Premises which Landlord is not required to clean
hereunder or which require additional cleaning shall be cleaned, at
Tenant’s expense, by Landlord’s cleaning contractor, at
rates which shall be competitive with rates of other cleaning
contractors providing comparable services to Comparable Buildings.
Landlord’s cleaning contractor and its employees shall have
access to the Premises at all times except between 8:00 a.m.
and 5:30 p.m. on weekdays which are not Observed
Holidays.

 



 

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Section
10.7 Water.
Landlord shall provide water to the Premises for bathroom and
kitchen purposes. If Tenant requires water for any additional
purposes, Tenant shall pay for the cost of bringing water to the
Premises and Landlord may install a meter to measure the water.
Tenant shall pay the cost of such installation, and for all
maintenance, repairs and replacements thereto, and for the
reasonable charges of Landlord for the water
consumed.

 


Section
10.8 Refuse Removal. Landlord shall provide refuse removal services
at the Building, and Monday through Friday from the Premises, for
ordinary office refuse and rubbish. Tenant shall pay to Landlord,
within ten (10) Business Days after delivery of an invoice
therefor, Landlord’s reasonable charge for such removal to
the extent that the refuse generated by Tenant exceeds the refuse
customarily generated by general office tenants. Tenant shall not
dispose of any refuse in the Common Areas, and if Tenant does so,
Tenant shall be liable for Landlord’s reasonable charge for
such removal.

 


Section
10.9 Signage.

 


(a) Entry
Signage. If other tenants occupy space on the floor on which
the Premises is located, Tenant's identifying signage shall be
provided by Landlord, at Landlord's cost, and such signage shall be
comparable to that used by Landlord for other similar floors in the
Building and shall comply with Landlord's then-current Building
standard signage program.

 


(b) Directory.
Landlord shall provide, at Landlord's cost, Tenant with its
proportionate share of the available lines on the directory board
located in the lobby of the Building, based on the rentable square
footage of the Premises.

 


Section
10.10 Telecommunications. If Tenant requests that Landlord grant access to
the Building to a telecommunications service provider designated by
Tenant for purposes of providing telecommunications services to
Tenant, Landlord shall use its good faith efforts to respond to
such request within thirty (30) days. Tenant acknowledges that
nothing set forth in this Section 10.10 shall impose any
affirmative obligation on Landlord to grant such request and that
Landlord, in its sole discretion, shall have the right to determine
which telecommunications service providers shall have access to
Building facilities.

 



Section
10.11 Service Interruptions. Landlord reserves the right to temporarily
suspend any service when necessary, by reason of Unavoidable
Delays, accidents or emergencies, or for any Work of Improvement
which, in Landlord’s reasonable judgment, is necessary or
appropriate, until such Unavoidable Delay, accident or emergency
shall cease or such Work of Improvement is completed and Landlord
shall not be liable for any interruption, curtailment or failure to
supply services, except as otherwise provided in Section 26.24
below. Landlord shall use reasonable and diligent efforts to
minimize interference with Tenant’s use and occupancy of or
access to the Premises, Building and Building Parking Facility as a
result of any such interruption, curtailment or failure of or
defect in such service, or change in the supply, character and/or
quantity of, electrical service, and to restore any such services,
remedy such situation as soon as commercially possible and minimize
any interference with Tenant’s business. The exercise of any
such right or the occurrence of any such failure by Landlord shall
not, subject to the terms of Section 26.23, below constitute
an actual or constructive eviction, in whole or in part, entitle
Tenant to any compensation, abatement or diminution of Rent (except
as otherwise provided in Section 26.24 below), relieve Tenant
from any of its obligations under this Lease, or impose any
liability upon Landlord or any Indemnified Party by reason of
inconvenience to Tenant, or interruption of Tenant’s
business, or otherwise. Subject to Section 26.24 below,
Landlord shall not be liable in any way to Tenant for any failure,
defect or interruption of, or change in the supply, character
and/or quantity of, electric service furnished to the Premises for
any reason except if attributable to the gross negligence or
willful misconduct of Landlord.

 

 



 

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Section
10.12 Supplemental HVAC. The installation of
any supplemental HVAC system in or exclusively serving the Premises
for the purpose of providing supplemental air-conditioning to the
Premises (the "Supplemental HVAC
System") shall be governed by the terms of the Work Letter
if installed as part of the Tenant Improvements, or thereafter by
Article 5 of this Lease and this Section 10.12 if installed after
the Commencement Date, and, if approved by Landlord pursuant to the
terms of Article 5 of this Lease and this Section 10.12, shall be
performed by Tenant as an Alteration at its sole cost and expense.
All aspects of the Supplemental HVAC System (including, but not
limited to, the plans and specifications therefor) shall be subject
to Landlord's prior written approval, which approval shall not be
unreasonably withheld, conditioned or delayed, unless the
structural aspects of the Building, the Building Systems, the
exterior appearance of the Building and/or the certificate of
occupancy issued for the Building or the Premises will be affected
and/or the installation of the Supplemental HVAC System will
violate any applicable Requirements, in which event Landlord's
approval may be withheld in Landlord's sole and absolute
discretion. Tenant shall be permitted, at Tenant's sole cost and
expense, to access 277/480 volts of electricity (subject to
availability) from the existing bus duct riser in connection with
any approved Supplemental HVAC System. In connection with the
foregoing, Landlord may, at Tenant's sole cost and expense,
separately meter the electricity utilized by the Supplemental HVAC
System, and, in any event, Tenant shall reimburse Landlord for the
cost as reasonably determined by Landlord of all electricity
utilized by the Supplemental HVAC System. Notwithstanding any
provision to the contrary contained in this Lease, at Landlord's
election prior to the expiration or earlier termination of this
Lease, Tenant shall surrender the Supplemental HVAC System to
Landlord with the Premises upon the expiration or earlier
termination of this Lease, and Tenant shall thereafter have no
further rights with respect thereto. In the event that Landlord
fails to elect to have the Supplemental HVAC System surrendered to
it upon the expiration or earlier termination of this Lease, then
Tenant shall remove the Supplemental HVAC System prior to the
expiration or earlier termination of this Lease, and repair all
damage to the Building resulting from such removal, at Tenant's
sole cost and expense. If Tenant fails to timely perform such
removal and/or repair work, then Landlord may (but shall not be
obligated to) perform such work at Tenant's sole cost and expense.
Tenant shall be solely responsible, at Tenant's sole cost and
expense, for the monitoring, operation, repair, replacement, and
removal (subject to the foregoing terms of this
Section 10.12), of the Supplemental HVAC System. In no event
shall the Supplemental HVAC System be permitted to interfere with
Landlord's operation of the Building. Any reimbursements owing by
Tenant to Landlord pursuant to this Section 10.12 shall be
payable by Tenant within ten (10) Business Days of Tenant's
receipt of an invoice therefor.

 


Section
10.13 Tenant's Security System. Tenant may, at
its own expense, install its own security system ("Tenant's Security System") in the
Premises pursuant to the terms of Article 5 above; provided,
however, that in the event Tenant's Security System ties into the
Building security system or the Building Systems, Tenant shall
coordinate the installation and operation of Tenant's Security
System with Landlord to assure that Tenant's Security System is
compatible with Landlord's security system and the Building Systems
and to the extent that Tenant's Security System is not compatible
with Landlord's security system or the Building Systems, Tenant
shall not be entitled to install or operate it. Tenant shall be
solely responsible, at Tenant's sole cost and expense, for the
monitoring, operation and removal of Tenant's Security System,
provided that, notwithstanding the foregoing, Tenant may install
any security system it desires that does not require linkage with
the Building security system and which does not affect the Building
security system and which does not (i) create (a) an adverse effect
on the structural integrity of the Building, (b) a non-compliance
with applicable governmental regulations or building codes, (c) an
adverse effect on the Building Systems, (d) an effect on the
exterior appearance of the Building, or (e) unreasonable
interference with the normal and customary office operations of any
other tenant in the Building or Real Property, or (ii) adversely
affect Landlord's ability to operate the Building. Tenant shall
provide Landlord with any information reasonably required regarding
Tenant's Security System in the event access to the Premises is
necessary in an emergency. At Landlord's option, upon the
expiration or earlier termination of the Term, Landlord may require
Tenant to remove Tenant's Security System and repair all damage to
the Building resulting from such removal, at Tenant's sole cost and
expense.

 



 

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ARTICLE 11

 


INSURANCE; PROPERTY LOSS OR
DAMAGE

 


Section
11.1 Tenant’s Insurance.

 


(a) Tenant,
at its expense, shall obtain and maintain in full force and effect
the following insurance policies throughout the Term:

 


(i) Commercial
General Liability (CGL) Insurance on a claims made basis
covering liability arising from premises operations, independent
contractors, product-completed operations, personal injury,
advertising injury, bodily injury, death and/or property damage
occurring in or about the Building, under which Tenant is insured
and Landlord, Landlord’s Agent and any Lessors and any
Mortgagees whose names have been furnished to Tenant are named as
additional insureds (the “Insured Parties”), provided that
any such coverage shall have an extended reported endorsement of
three (3) years from the expiration or earlier termination of any
such policy. Such insurance shall provide primary coverage without
contribution from any other insurance or self-insurance carried by
or for the benefit of the Insured Parties, and such insurance shall
include blanket broad-form contractual liability coverage. The
minimum limits of liability shall be a combined single limit with
respect to each claim in an amount of not less than Five Million
and No/100 Dollars ($5,000,000.00). Landlord shall retain the
right to require Tenant to increase such coverage from time to time
to that amount of insurance which in Landlord’s reasonable
judgment is then being customarily required by landlords for
similar office space in Comparable Buildings, provided that in no
event shall Landlord increase such coverage more than once every
two (2) years. Except as otherwise set forth in this Section
11.1(a), there shall be no deductible in excess of Twenty Five
Thousand and No/100 Dollars ($25,000.00) or self-insurance without
the prior written consent of Landlord;

 


(ii) All-Risk
Commercial Property Insurance insuring Tenant’s
Property (as defined in Exhibit
B) and the Tenant-Insured Improvements (as defined in
Exhibit B), for the full
replacement cost thereof, having a deductible amount, if any, not
in excess of Twenty-Five Thousand and No/100 Dollars
($25,000.00) without the prior written consent of Landlord.
Earthquake sprinkler leakage coverage insuring Tenant's Property
and the Tenant-Insured Improvements with a limit as close to the
full replacement cost of such property covered as is reasonably
available shall be provided. The Insured Parties shall be included
as loss payee(s) with respect to the Tenant-Insured
Improvements;

 


(iii) Builder’s
Risk during the performance of any Alteration, until
completion thereof, on an “All Risk” basis, including a
permission to complete and occupy and flood, including resulting
water damage, endorsements, for full replacement cost covering the
interest of Landlord and Tenant (and their respective contractors
and subcontractors) in all work incorporated in the Building and
all materials and equipment in or about the Premises, or evidence
of such coverage under the property insurance policies set forth in
(ii) above. The Insured Parties shall be named as additional
insureds;

 


(iv) Workers’
Compensation Benefits Insurance and Employer's Liability
Insurance, with Worker's Compensation Benefits Insurance as
required by law and Employer's Liability Insurance with a limit not
less than One Million and No/100 Dollars ($1,000,000.00) each
accident for bodily injury by accident and One Million and
No/100 Dollars ($1,000,000.00) each employee for bodily injury
by disease. A deductible or self-insured retention for such policy
shall not exceed Twenty-Five Thousand and No/100 Dollars
($25,000.00) without the prior written consent of
Landlord;

 


(v) Business
Interruption Insurance covering a minimum of one year of
anticipated gross Rent; and

 


(vi) such
other insurance in such amounts as the Insured Parties may
reasonably require from time to time, but in no event shall such
increased amounts of insurance or such other reasonable types of
insurance be in excess of that required by landlords of Comparable
Buildings for tenants comparable in size to Tenant.

 

 



 

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(b) Tenant
shall provide the Insured Parties with prior written notice of any
termination or material change to the policies that would affect
the interest of any of the Insured Parties. All insurance required
to be carried by Tenant shall be effected under valid and
enforceable policies issued by reputable insurers authorized to do
business in the State of California and rated in AM Best’s
Insurance Guide, or any successor thereto as having an AM
Best’s Rating of “A” or better and a Financial
Size Category of at least “X” or better, or, if such
ratings are not then in effect, the equivalent thereof or such
other financial rating as Landlord may at any time consider
appropriate.

 


(c) On
or prior to the Commencement Date, Tenant shall deliver to Landlord
appropriate certificates of insurance that evidence insurance
required to be covered by this Article 11, the waivers of
subrogation required by Section 11.2 below, the Insured Parties are
named as additional insureds/loss payees as required pursuant to
this Article 11, and the commercial general liability is primary,
non-contributory, and not excess of any other valid and collectible
insurance. Evidence of each renewal or replacement policies shall
be delivered by Tenant to Landlord at least ten (10) days
after the expiration of the policies.

 


(d) By
requiring insurance herein, Landlord does not represent that
coverage and limits will necessarily be adequate to protect Tenant,
and such coverage and limits shall not be deemed a limitation on or
transfer of Tenant’s liability under the indemnities granted
to Landlord in this Lease.

 


(e) All
rights that inure to the benefit of the Landlord shall not be
prejudiced by the expiration of the Lease.

 


(f) Tenant
may satisfy the limits of liability required herein with a
combination of umbrella and/or excess policies of insurance where
applicable, provided that such policies comply with all of the
provisions hereof (including, without limitation, with respect to
scope of coverage and naming of the Insured Parties as additional
insureds).

 


Notwithstanding any
provision to the contrary set forth herein, Tenant shall have the
right, without Landlord's consent, to carry a deductible amount of
more than $25,000.00 (but in no event in excess of $250,000.00),
provided that (a) Tenant's tangible net worth computed in
accordance with generally accepted accounting principles
consistently applied (and excluding goodwill, organization costs
and other intangible assets) and financial standing is equal to or
greater than $100,000,000.00, and (b) Tenant provides Landlord with
evidence therefore.

 


Section
11.2 Waiver of Subrogation. Landlord and Tenant shall have no liability to
one another, or to any insurer, by way of subrogation or otherwise,
on account of any loss or damage to their respective property, the
Premises or its contents or the Building, regardless of whether
such loss or damage is caused by the negligence of Landlord or
Tenant, arising out of any of the perils or casualties insured
against by the property insurance policies carried, or required to
be carried, by the parties pursuant to this Lease, but only to the
extent covered by such insurance policies carried, or required to
be carried, by the parties pursuant to this Lease. In addition,
Landlord and Tenant shall have no liability to one another for any
deductible amount carried under any policy, except with respect to
Tenant's reimbursement of deductible amounts to Landlord as a part
of Operating Expenses in accordance with Article 7 above. The
insurance policies obtained by Landlord and Tenant pursuant to this
Lease, shall permit waivers of subrogation which the insurer may
otherwise have against the non-insuring party. In the event the
policy or policies do not include blanket waiver of subrogation
prior to loss, either Landlord or Tenant shall, at the request of
the other party, arrange and deliver to the requesting party a
waiver of subrogation endorsement in such form and content as may
reasonably be required by the requesting party or its insurer.
Tenant acknowledges that Landlord shall not carry insurance on, and
shall not be responsible for, (i) damage to any Tenant-Insured
Improvements, (ii) Tenant’s Property, and (iii) any
loss suffered by Tenant due to interruption of Tenant’s
business.

 

 



 

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Section
11.3 Restoration.

 


(a) If
the Premises are damaged by fire or other casualty, or if the
Building is damaged such that Tenant is deprived of reasonable
access to the Premises, the damage shall be repaired by Landlord,
to substantially the condition of the Premises prior to the damage,
subject to the provisions of any Mortgage or Superior Lease and
only to the extent that such repairs can reasonably be made from
the net proceeds of any insurance actually received by Landlord,
but Landlord shall have no obligation to repair or restore
(i) Tenant’s Property or (ii) except as provided in
Section 11.3(b), any Tenant-Insured Improvements. So long as
Tenant is not in default beyond applicable grace or notice
provisions in the payment or performance of its obligations under
this Section 11.3, and provided Tenant timely delivers to
Landlord either Tenant’s Restoration Payment (as hereinafter
defined) or the Restoration Security (as hereinafter defined) or
Tenant expressly waives any obligation of Landlord to repair or
restore any of Tenant’s Tenant-Insured Improvements, then
until the restoration of the Premises is Substantially Completed or
would have been Substantially Completed but for Tenant Delay, Fixed
Rent, Tenant’s Tax Payment and Tenant’s Operating
Payment shall be reduced in the proportion by which the area of the
part of the Premises which is not usable (or accessible ) and is
not used by Tenant bears to the total area of the Premises. If this
Lease is terminated in connection with any fire or casualty and
Tenant has obtained and maintained the insurance policies required
under Section 11.1 of this Lease, then Tenant shall assign to
Landlord all insurance proceeds payable to Tenant in connection
with the Tenant-Insured Improvements. In addition, if this Lease is
terminated in connection with any fire or casualty and Tenant has
not obtained or maintained the insurance policies required under
Section 11.1 of this Lease, then Tenant shall pay to Landlord an
amount equal to the amount of the insurance proceeds that otherwise
would have been payable to Tenant had Tenant complied with the
insurance requirements set forth herein.

 


(b) As
a condition precedent to Landlord’s obligation to repair or
restore any Tenant-Insured Improvements, Tenant shall (i) pay
to Landlord upon demand a sum (“Tenant’s Restoration
Payment”) equal to the amount, if any, by which
(A) the cost, as estimated by a reputable independent
contractor designated by Landlord, of repairing and restoring all
Alterations and improvements in the Premises (including the Tenant
Improvements) to their condition prior to the damage, exceeds
(B) the cost of restoring the Premises with Building Standard
Installations, or (ii) furnish to Landlord security (the
“Restoration
Security”) in form and amount reasonably acceptable to
Landlord to secure Tenant’s obligation to pay all costs in
excess of restoring the Premises with Building Standard
Installations. If Tenant shall fail to deliver to Landlord either
(1) Tenant’s Restoration Payment or the Restoration
Security, as applicable, or (2) a waiver by Tenant, in form
satisfactory to Landlord, of all of Landlord’s obligations to
repair or restore any of the Tenant-Insured Improvements, in either
case within fifteen (15) days after Landlord’s demand
therefor, Landlord shall have no obligation to restore any
Tenant-Insured Improvements and Tenant’s abatement of Fixed
Rent, Tenant’s Tax Payment and Tenant’s Operating
Payment shall cease when the restoration of the Premises (other
than any Tenant-Insured Improvements) is Substantially
Complete.

 


Section
11.4 Landlord’s Termination
Right. Notwithstanding anything
to the contrary contained in Section 11.3, (a) if the Premises
are totally damaged or are rendered wholly untenantable, (b) if the
Building shall be so damaged that, in Landlord’s reasonable
opinion, substantial alteration, demolition, or reconstruction of
the Building shall be required (whether or not the Premises are so
damaged or rendered untenantable), (c) if any Mortgagee shall
require that the insurance proceeds or any portion thereof be used
to retire the Mortgage debt or any Lessor shall terminate the
Superior Lease, as the case may be, or (d) if the damage is not
fully covered, except for deductible amounts, by Landlord's
insurance policies, then in any of such events, Landlord may, not
later than sixty (60) days following the date of the damage,
terminate this Lease by notice to Tenant, provided that if the
Premises are not damaged, Landlord may not terminate this Lease
unless Landlord similarly terminates the leases of other tenants in
the Building aggregating at least fifty percent (50%) of the
portion of the Building occupied for office purposes immediately
prior to such damage. If this Lease is so terminated, (a) the
Term shall expire upon the thirtieth (30th) day
after such notice is given, (b) Tenant shall vacate the
Premises and surrender the same to Landlord,
(c) Tenant’s liability for Rent shall cease as of the
date of the damage, and (d) any prepaid Rent for any period
after the date of the damage and the Security Deposit shall be
promptly refunded by Landlord to Tenant.

 

 



 

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Section
11.5 Tenant’s Termination
Right. If the Premises are
totally damaged and are thereby rendered wholly untenantable, or if
the Building shall be so damaged that Tenant is deprived of
reasonable access to the Premises, and if Landlord elects to
restore the Premises, Landlord shall, within sixty (60) days
following the date of the damage, cause a contractor or architect
selected by Landlord to give notice (the “Restoration
Notice”) to Tenant of the
date by which such contractor or architect estimates the
restoration of the Premises (excluding any Tenant-Insured
Improvements) shall be Substantially Completed. If such date, as
set forth in the Restoration Notice, is more than twelve
(12) months from the date of such damage, then Tenant shall
have the right to terminate this Lease by giving notice (the
“Termination
Notice”) to Landlord not
later than thirty (30) days following delivery of the
Restoration Notice to Tenant. If Tenant delivers a Termination
Notice, this Lease shall be deemed to have terminated as of the
date of the giving of the Termination Notice, in the manner set
forth in the second sentence of
Section 11.4.

 


Section
11.6 Final 18 Months. Notwithstanding anything to the contrary in this
Article 11, if any damage during the final 18 months of
the Term renders the Premises wholly untenantable, either Landlord
or Tenant may terminate this Lease by notice to the other party
within thirty (30) days after the occurrence of such damage
and this Lease shall expire on the thirtieth (30th) day
after the date of such notice. For purposes of this
Section 11.6, the Premises shall be deemed wholly untenantable
if Tenant shall be precluded from using more than fifty percent
(50%) of the Premises for the conduct of its business and
Tenant’s inability to so use the Premises is reasonably
expected to continue for more than ninety
(90) days.

 


Section
11.7 Landlord’s Liability. Any Building employee to whom any property shall
be entrusted by or on behalf of Tenant shall be deemed to be acting
as Tenant’s agent with respect to such property and neither
Landlord nor its agents shall be liable for any damage to such
property, or for the loss of or damage to any property of Tenant by
theft or otherwise. None of the Insured Parties shall be liable for
any injury or damage to persons or property or interruption of
Tenant’s business resulting from fire or other casualty, any
damage caused by other tenants or persons in the Building or by
construction of any private, public or quasi-public work, or any
latent defect in the Premises or in the Real Property (except that
Landlord shall be required to repair the same to the extent
provided in Article 6). No penalty shall accrue for delays
which may arise by reason of adjustment of casualty insurance on
the part of Landlord or Tenant, or for any Unavoidable Delays
arising from any repair or restoration of any portion of the
Building, provided that Landlord shall use reasonable efforts to
minimize interference with Tenant’s use and occupancy of the
Premises during the performance of any such repair or
restoration.

 



ARTICLE 12

 


EMINENT DOMAIN

 


Section
12.1 Taking.

 


(a) Total
Taking. If all or substantially
all of the Real Property, the Building or the Premises shall be
acquired or condemned for any public or quasi-public purpose (a
“Taking”), this Lease shall terminate and the Term
shall end as of the earlier of (i) the date possession is
taken or (ii) the date of the vesting of title and Rent shall
be prorated and adjusted as of such date.

 


(b) Partial
Taking. Upon a Taking of only a
part of the Real Property, the Building or the Premises then,
except as hereinafter provided in this Article 12, this Lease
shall continue in full force and effect, provided that from and
after the earlier of (i) the date possession is taken or
(ii) the date of the vesting of title, Fixed Rent and
Tenant’s Proportionate Share shall be modified to reflect the
reduction of the Premises and/or the Building as a result of such
Taking.

 


(c) Landlord’s
Termination Right. Whether or
not the Premises are affected, Landlord may, by notice to Tenant,
terminate this Lease upon a Taking of all or a portion of the Real
Property, the Building or the Premises, provided that Landlord
elects to terminate leases (including this Lease) affecting at
least fifty percent (50%) of the rentable area of the
Building.

 



 

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(d) Tenant’s
Termination Right. If the part
of the Real Property so Taken contains more than twenty percent
(20%) of the total area of the Premises occupied by Tenant
immediately prior to such Taking, or if, by reason of such Taking,
Tenant no longer has reasonable means of access to the Premises,
Tenant may terminate this Lease by notice to Landlord given within
thirty (30) days following the date upon which Tenant is given
notice of such Taking. If Tenant so notifies Landlord, this Lease
shall end and expire upon the thirtieth (30th) day
following the giving of such notice. If a part of the Premises
shall be so Taken and this Lease is not terminated in accordance
with this Section 12.1 Landlord, without being required to
spend more than it collects as an award, shall, subject to the
provisions of any Mortgage or Superior Lease, restore that part of
the Premises not so Taken to a self-contained rental unit
substantially equivalent (with respect to character, quality,
appearance and services) to that which existed immediately prior to
such Taking, excluding Tenant’s Property and any
Tenant-Insured Improvements.

 


(e) Apportionment
of Rent. Upon any termination
of this Lease pursuant to the provisions of this Article 12,
Rent shall be apportioned as of, and shall be paid or refunded up
to and including, the date of such termination.

 


Section
12.2 Awards.
Upon any Taking, Landlord shall receive the entire award for any
such Taking, and Tenant shall have no claim against Landlord or the
condemning authority for the value of any unexpired portion of the
Term or Tenant’s Alterations; and Tenant hereby assigns to
Landlord all of its right in and to such award. Nothing contained
in this Article 12 shall be deemed to prevent Tenant from
making a separate claim in any condemnation proceedings for the
then value of any Tenant’s Property or Tenant-Insured
Improvements included in such Taking and for any moving expenses,
provided any such award is in addition to, and does not result in a
reduction of, the award made to Landlord.

 


Section
12.3 Temporary Taking. If all or any part of the Premises is Taken
temporarily during the Term for any public or quasi-public use or
purpose, Tenant shall give prompt notice to Landlord and the Term
shall not be reduced or affected in any way and Tenant shall
continue to pay all Rent payable by Tenant without reduction or
abatement and to perform all of its other obligations under this
Lease, except to the extent prevented from doing so by the
condemning authority, and Tenant shall be entitled to receive any
award or payment from the condemning authority for such use, which
shall be received, held and applied by Tenant as a trust fund for
payment of the Rent falling due.

 



ARTICLE 13

 


ASSIGNMENT AND
SUBLETTING

 


Section
13.1 Consent Requirements.

 


(a) No
Transfers. Except as expressly
set forth herein, Tenant shall not assign, mortgage, pledge,
encumber, or otherwise transfer this Lease, whether by operation of
law or otherwise, and shall not sublet, or permit, or suffer the
Premises or any part thereof to be used or occupied by others
(whether for desk space, mailing privileges or otherwise), without
Landlord’s prior consent in each instance, which consent
shall not be unreasonably withheld, conditioned or delayed. Any
assignment, sublease, mortgage, pledge, encumbrance or transfer in
contravention of the provisions of this Article 13 shall be
void and shall constitute an Event of Default.

 


(b) Collection
of Rent. If, without
Landlord’s consent, this Lease is assigned, or any part of
the Premises is sublet or occupied by anyone other than Tenant or
this Lease is encumbered (by operation of law or otherwise),
Landlord may collect rent from the assignee, subtenant or occupant,
and apply the net amount collected to the Rent herein reserved. No
such collection shall be deemed a waiver of the provisions of this
Article 13, an acceptance of the assignee, subtenant or
occupant as tenant, or a release of Tenant from the performance of
Tenant’s covenants hereunder, and in all cases Tenant shall
remain fully liable for its obligations under this
Lease.

 

 



 

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(c) Further
Assignment/Subletting.
Landlord’s consent to any assignment or subletting shall not
relieve Tenant from the obligation to obtain Landlord’s
consent to any further assignment or subletting. In no event shall
any permitted subtenant assign or encumber its sublease or further
sublet any portion of its sublet space, or otherwise suffer or
permit any portion of the sublet space to be used or occupied by
others without Landlord's prior written
consent.

 


Section
13.2 Tenant’s Notice. If Tenant desires to assign this Lease or sublet
all or any portion of the Premises (sometimes referred to herein as
a “Transfer”), Tenant shall give notice (the
"Transfer
Notice") thereof to Landlord,
which shall be accompanied by (a) with respect to an
assignment of this Lease, the date Tenant desires the assignment to
be effective, and (b) with respect to a sublet of all or a
part of the Premises, a description of the portion of the Premises
to be sublet, the commencement date of such sublease and the rent
per rentable square foot Tenant will ask for such portion of the
Premises (“Tenant’s Asking
Rate”). Notwithstanding
the foregoing, in the event Tenant intends to assign this Lease or
sublease all of the Premises, Tenant shall have the right, prior to
submitting any such Transfer Notice, to deliver notice
(“Intention to Transfer
Notice”) to Landlord of
Tenant’s intention or desire to assign this Lease or sublease
all of the Premises, in which event, such Intention to Transfer
Notice shall be deemed an offer from Tenant to Landlord of the
right, at Landlord’s option, to recapture and terminate this
Lease with respect to the entire Premises effective as of the date
set forth in the Intention to Transfer Notice. Such recapture
option may be exercised by notice (the "Recapture
Notice") from Landlord to
Tenant within ten (10) Business Days after delivery of
Tenant’s Intention to Transfer Notice or the Transfer Notice,
as applicable (i.e., if Tenant does not deliver to Landlord an
Intention to Transfer Notice); provided, however,
Landlord hereby acknowledges and
agrees that Landlord shall have no right to recapture the Premises
with respect to (i) an assignment or sublease pursuant to Section
13.8, below; or (ii) any sublease of less than the entire
Premises. If Tenant delivers an Intention to Transfer Notice to
Landlord, and Landlord declines, or fails to elect in a timely
manner to recapture and terminate this Lease with respect to the
entire Premises, then, Tenant shall thereafter be entitled to
proceed to assign this Lease or sublease the entire Premises
subject to Landlord’s consent rights upon Landlord’s
receipt of a Transfer Notice but Landlord shall have no further
right to recapture with respect to such assignment or
sublease. If Landlord timely exercises
its option to terminate this Lease by delivering a Recapture Notice
following receipt of a Transfer Notice or an Intention to Transfer
Notice, as applicable, then Tenant shall have the right to revoke
its Intention to Transfer Notice by delivering a notice (the
"Rescission
Notice") to Landlord within
five (5) Business Days following delivery of the Recapture Notice.
In the event that Tenant delivers the Rescission Notice, then this
Lease shall continue as if Tenant had never delivered the Intention
to Transfer Notice. If Landlord timely exercises its option to
terminate this Lease by delivering a Recapture Notice and Tenant
does not thereafter timely deliver to Landlord the Rescission
Notice, then , (a) this Lease shall end and expire on the date
that such assignment or sublease was to commence, provided that
such date is in no event earlier than ninety (90) days after
the date of the above notice unless Landlord agrees to such earlier
date, (b) Rent shall be apportioned, paid or refunded as of
such date, (c) Tenant, upon Landlord’s request, shall
enter into an amendment of this Lease ratifying and confirming such
termination, and (d) Landlord shall be free to lease the
Premises (or any part thereof) to Tenant’s prospective
assignee or subtenant or to any other party.

 


Section
13.3 Intentionally Deleted.

 


Section
13.4 Conditions to
Assignment/Subletting.

 


(a) Upon
Landlord’s receipt of a Transfer Notice, Landlord’s
consent to the proposed assignment or subletting shall not be
unreasonably withheld or delayed. Such consent shall be granted or
denied within ten (10) Business Days after delivery to
Landlord of (i) a true and complete statement reasonably
detailing the identity of the proposed assignee or subtenant
(“Transferee”),
the nature of its business and its proposed use of the Premises,
(ii) current financial information with respect to the
Transferee, including its most recent financial statements, (iii) a
copy of the existing executed and/or proposed operative documents
executed to evidence such Transfer (such as the final assignment
agreement or final sublease agreement, as applicable), (items (i)
through (iii) shall collectively be referred to herein as the
"Transfer Documents"),
provided that:

 


(A) in
Landlord’s reasonable judgment, the Transferee is engaged in
a business or activity, and the Premises will be used in a manner,
which (1) is in keeping with the typical standards of a first
class office building in the greater West Los Angeles Marketplace,
(2) is for the Permitted Uses, and (3) does not violate
any restrictions set forth in this Lease, any Mortgage or Superior
Lease or any negative covenant as to use of the Premises required
by any other lease in the Building;

 



 

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(B) the
Transferee is reputable with sufficient financial means to perform
all of its obligations under this Lease or the sublease, as the
case may be;

 


(C) if
Landlord has, or reasonably expects to have within 3 months
thereafter, comparable space available in the Building, neither the
Transferee nor any person or entity which, directly or indirectly,
controls, is controlled by, or is under common control with, the
Transferee is then an occupant of the Building;

 


(D) the
Transferee is not a person or entity (or affiliate of a person or
entity) with whom Landlord is then or has been within the prior
3 months negotiating in connection with the rental of space in
the Building;

 


(E) Tenant
shall, upon demand, reimburse Landlord for all reasonable expenses
incurred by Landlord in connection with such assignment or
sublease, including any investigations as to the acceptability of
the Transferee and all legal costs reasonably incurred in
connection with the granting of any requested consent, but in no
event in an amount exceeding Two Thousand Five Hundred and No/100
Dollars ($2,500.00) for a Transfer in the ordinary course of
business;

 


(F) the
proposed Transfer is either a sublease or a non-collateral complete
assignment;

 


(G) the
proposed Transfer would not cause Landlord to be in violation of
any Requirements or any other lease, Mortgage, Superior Lease or
agreement to which Landlord is a party and would not give a tenant
of the Real Property a right to cancel its lease;

 


(H) the
Transferee shall not be either a governmental agency or an
instrumentality thereof, nor shall the Transferee be entitled,
directly or indirectly, to diplomatic or sovereign immunity,
regardless of whether the Transferee agrees to waive such
diplomatic or sovereign immunity, and shall be subject to the
service of process in, and the jurisdiction of the courts of, the
County of Los Angeles and State of California; and

 


(I) Landlord
has received assurances acceptable to Landlord in its sole
discretion that all past due amounts owing from Tenant to Landlord,
if any, will be paid and all defaults on the part of Tenant, if
any, will be cured prior to the effective date of the proposed
Transfer.

 


The
parties hereby agree, without limitation as to other reasonable
grounds for withholding consent, that it shall be reasonable under
this Lease and under applicable Requirements for Landlord to
withhold consent to any proposed Transfer based upon any of the
foregoing criteria.

 


In the
event that Landlord fails to provide its approval or disapproval of
a proposed Transfer within ten (10) Business Days after delivery to
Landlord of all of the Transfer Documents, and Tenant's Transfer
Documents included the following statement in bold and capital
letters: "THIS IS A REQUEST FOR
LANDLORD'S CONSENT PURSUANT TO THE TERMS OF SECTION 13.4: IF
LANDLORD FAILS TO GRANT OR DENY ITS CONSENT WITHIN TEN (10)
BUSINESS DAYS AFTER RECEIPT OF THIS NOTICE, THEN LANDLORD SHALL BE
DEEMED TO HAVE CONSENTED TO THE PROPOSED TRANSFER", then
Tenant's proposed Transfer shall be deemed approved.

 


(b) With
respect to each and every subletting and/or assignment approved by
Landlord under the provisions of this Lease:

 


(i) no
sublease shall be for a term ending later than the Expiration
Date;

 


(ii) no
Transferee shall take possession of any part of the Premises, until
an executed counterpart of such sublease or assignment has been
delivered to Landlord and approved by Landlord as provided in
Section 13.4(a); and

 

 



 

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(iii) each
sublease shall be subject and subordinate to this Lease and to the
matters to which this Lease is or shall be subordinate; and Tenant
and each Transferee shall be deemed to have agreed that upon the
occurrence and during the continuation of an Event of Default
hereunder, Tenant has hereby assigned to Landlord, and Landlord
may, at its option, accept such assignment of, all right, title and
interest of Tenant as sublandlord under such sublease, together
with all modifications, extensions and renewals thereof then in
effect and such Transferee shall, at Landlord’s option,
attorn to Landlord pursuant to the then executory provisions of
such sublease, except that Landlord shall not be (A) liable
for any previous act or omission of Tenant under such sublease,
(B) subject to any counterclaim, offset or defense not
expressly provided in such sublease or which theretofore accrued to
such Transferee against Tenant, (C) bound by any previous
modification of such sublease not consented to by Landlord or by
any prepayment of more than one month’s rent, (D) bound
to return such Transferee’s security deposit, if any, except
to the extent Landlord shall receive actual possession of such
deposit and such Transferee shall be entitled to the return of all
or any portion of such deposit under the terms of its sublease, or
(E) obligated to make any payment to or on behalf of such
Transferee, or to perform any work in the sublet space or the Real
Property, or in any way to prepare the subleased space for
occupancy, beyond Landlord’s obligations under this Lease.
The provisions of this Section 13.4(b)(iii) shall be
self-operative, and no further instrument shall be required to give
effect to this provision, provided that the Transferee shall
execute and deliver to Landlord any instruments Landlord may
reasonably request to evidence and confirm such subordination and
attornment.

 


Section
13.5 Binding on Tenant; Indemnification of
Landlord. Notwithstanding any
assignment or subletting or any acceptance of rent by Landlord from
any Transferee, Tenant and any guarantor shall remain fully liable
for the payment of all Rent due and for the performance of all the
covenants, terms and conditions contained in this Lease on
Tenant’s part to be observed and performed, and any default
under any term, covenant or condition of this Lease by any
Transferee or anyone claiming under or through any Transferee shall
be deemed to be a default under this Lease by Tenant. Tenant shall
indemnify, defend, protect and hold harmless Landlord from and
against any and all Losses resulting from any claims that may be
made against Landlord by the Transferee or anyone claiming under or
through any Transferee or by any brokers or other persons or
entities claiming a commission or similar compensation in
connection with the proposed assignment or sublease, irrespective
of whether Landlord shall give or decline to give its consent to
any proposed assignment or sublease, or if Landlord shall exercise
any of its options under this Article 13.

 


Section
13.6 Tenant’s Failure to
Complete. If Landlord consents
to a proposed assignment or sublease and Tenant fails to execute
and deliver to Landlord such assignment or sublease within ninety
(90) days after the giving of such consent, or if there are
any material changes in the terms and conditions of the proposed
assignment or sublease such that Landlord would initially have been
entitled to refuse its consent to such Transfer under this Article
13, then Tenant shall again comply with all of the provisions and
conditions of Sections 13.2, 13.3 and 13.4 before assigning
this Lease or subletting all or part of the
Premises.

 


Section
13.7 Profits. If
Tenant enters into any assignment or sublease permitted hereunder
and consented to by Landlord, Tenant shall, within sixty (60) days
of Landlord’s consent to such assignment or sublease (but not
as to any assignment or subletting which does not require
Landlord's consent under Section 13.8 below), deliver to
Landlord a list of Tenant’s reasonable third-party brokerage
fees and improvement costs, legal fees and architectural fees paid
or to be paid in connection with such transaction, reasonable
marketing costs, rental abatement, and monetary concessions
provided to Transferee and, any fees paid to Landlord and in the
case of any sublease, any actual costs incurred by Tenant in
connection with such sublease, including separately demising the
sublet space (collectively, “Transaction
Costs”), together with a
list of all of Tenant’s Property to be transferred to such
Transferee; provided, however, that Transaction Costs shall not
include any rent paid by Tenant to Landlord, including with respect
to the period Tenant is marketing the Premises or any portion
thereof for sublease. The Transaction Costs shall be amortized, on
a straight-line basis, over the term of any sublease. Tenant shall
deliver to Landlord evidence of the payment of such Transaction
Costs promptly after the same are paid. In consideration of such
assignment or subletting, Tenant shall pay to
Landlord:

 

 



 

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(a) In
the case of an assignment, on the effective date of the assignment,
fifty percent (50%) of all sums and other consideration paid
to Tenant by the Transferee (as opposed to the sale of the
business) for or by reason of such assignment (excluding sums paid
for the sale or rental of Tenant’s Property, provided such
sums paid for the sale or rental of Tenant's Property are not a
subterfuge to avoid Tenant's obligations hereunder) after first
deducting the Transaction Costs; or

 


(b) In
the case of a sublease, fifty percent (50%) of any
consideration payable under the sublease to Tenant by the
Transferee which exceeds on a per square foot basis the Fixed Rent,
Tenant's Tax Payment and Tenant's Operating Payment accruing during
the term of the sublease in respect of the sublet space (together
with any sums paid for services rendered by Tenant to the
Transferee in excess of fair market value for such services and
sums paid for the sale or rental of Tenant’s Property, less
the then fair market or rental value thereof, as reasonably
determined by Landlord) after first deducting the monthly amortized
amount of Transaction Costs. The sums payable under this clause
shall be paid by Tenant to Landlord monthly as and when paid by the
subtenant to Tenant.

 


The
amount payable under this Section 13.7 with respect to any
particular Transfer is sometimes referred to herein as the
“Transfer
Premium.” Landlord or its authorized representatives
shall have the right at all reasonable times upon not less than
thirty (30) days prior notice to audit the books, records and
papers of Tenant relating to any Transfer, and shall have the right
to make copies thereof. If the Transfer Premium respecting any
Transfer shall be found understated, such event shall, at
Landlord's option, be deemed to be an uncurable Event of Default
(as such term is defined in Section 15.1 below) and Tenant shall,
within thirty (30) days after demand, pay the deficiency, and if
understated by more than five percent (5%), Tenant shall pay
Landlord's costs of such audit.

 


Section
13.8 Transfers.

 


(a) Related
Entities. If Tenant is a legal entity, the transfer (by one
or more transfers), directly or indirectly, by operation of law or
otherwise, of a majority of the stock or other beneficial ownership
interest in Tenant (collectively, “Ownership Interests”) or of all or
substantially all of the assets of Tenant shall be deemed a
voluntary assignment of this Lease; provided, however, that the
provisions of this Article 13 shall not apply to the transfer
of Ownership Interests in Tenant if and so long as Tenant is
publicly traded on a nationally recognized stock exchange. The
provisions of Section 13.1 and 13.7 shall not apply to
transactions with a business entity into or with which Tenant is
merged, consolidated or converted or to which all or substantially
all of Tenant’s assets are transferred so long as
(i) such transfer was made for a legitimate independent
business purpose and not for the purpose of transferring this
Lease, (ii) the successor to Tenant has a tangible net worth
computed in accordance with generally accepted accounting
principles consistently applied (and excluding goodwill,
organization costs and other intangible assets) that is sufficient
to meet the obligations of Tenant under this Lease and is at least
equal to the net worth of Tenant on the Effective Date,
(iii) proof satisfactory to Landlord of such net worth is
delivered to Landlord at least ten (10) days prior to the
effective date of any such transaction, (iv) any such transfer
shall be subject and subordinate to all of the terms and provisions
of this Lease, and the transferee shall assume, in a written
document reasonably satisfactory to Landlord and delivered to
Landlord upon or prior to the effective date of such transfer, all
the obligations of Tenant under this Lease, (v) Tenant and any
guarantor shall remain fully liable for all obligations to be
performed by Tenant under this Lease, and (vi) such transfer does
not cause Landlord to be in default under any existing lease at the
Real Property. Tenant may also, upon prior notice to Landlord,
permit any business entity which controls, is controlled by, or is
under common control with Tenant (a “Related Entity”) to sublet all or
part of the Premises for any Permitted Uses for so long as such
entity remains a Related Entity or assign this Lease to such
Related Entity, provided the Related Entity is in Landlord’s
reasonable judgment of a character and engaged in a business which
is in keeping with the standards for the Building. Such sublease
shall not be deemed to vest in any such Related Entity any right or
interest in this Lease nor shall it relieve, release, impair or
discharge any of Tenant’s obligations hereunder. For the
purposes hereof, “control” shall be deemed to mean
ownership of not less than fifty percent (50%) of all of the
Ownership Interests of such corporation or other business entity.
Notwithstanding the foregoing, Tenant shall have no right to assign
this Lease or sublease all or any portion of the Premises without
Landlord’s consent pursuant to this Section 13.8 if an
Event of Default by Tenant exists under this Lease at the time of
the proposed effective date of the Transfer.

 

 



 

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(b) Applicability.
The limitations set forth in this Section 13.8 shall apply to
Transferee(s) and guarantor(s) of this Lease, if any, and any
transfer by any such entity in violation of this Section 13.8
shall be a transfer in violation of Section 13.1.

 


(c) Modifications,
Takeover Agreements. Any modification, amendment or
extension of a sublease and/or any other agreement by which a
landlord of a building other than the Building, or its affiliate,
agrees to assume the obligations of Tenant under this Lease shall
be deemed a sublease for the purposes of Section 13.1
hereof.

 


Section
13.9 Assumption of Obligations. No assignment or transfer shall be effective
unless and until the Transferee (a) assumes Tenant’s
obligations under this Lease and (b) agrees that,
notwithstanding such assignment or transfer, the provisions of
Section 13.1 hereof shall be binding upon it in respect of all
future assignments and transfers.

 


Section
13.10 Tenant’s Liability. The joint and several liability of Tenant and
any successors-in-interest of Tenant and the due performance of
Tenant’s obligations under this Lease shall not be
discharged, released or impaired by any agreement or stipulation
made by Landlord, or any grantee or assignee of Landlord, extending
the time, or modifying any of the terms and provisions of this
Lease, or by any waiver or failure of Landlord, or any grantee or
assignee of Landlord, to enforce any of the terms and provisions of
this Lease.

 


Section
13.11 Listings in Building
Directory. The listing of any
name other than that of Tenant on the doors of the Premises, the
Building directory or elsewhere shall not vest any right or
interest in this Lease or in the Premises, nor be deemed to
constitute Landlord’s consent to any assignment or transfer
of this Lease or to any sublease of the Premises or to the use or
occupancy thereof by others.

 


Section
13.12 Lease Disaffirmance or
Rejection. If at any time after
an assignment by Tenant named herein, this Lease is not affirmed or
is rejected in any bankruptcy proceeding or any similar proceeding,
or upon a termination of this Lease due to any such proceeding,
Tenant named herein, upon request of Landlord given after such
disaffirmance, rejection or termination (and actual notice thereof
to Landlord in the event of a disaffirmance or rejection or in the
event of termination other than by act of Landlord), shall
(a) pay to Landlord all Rent and other charges due and owing
by the assignee to Landlord under this Lease to and including the
date of such disaffirmance, rejection or termination, and
(b) as “tenant,” enter into a new lease of the
Premises with Landlord for a term commencing on the effective date
of such disaffirmance, rejection or termination and ending on the
Expiration Date, at the same Rent and upon the then executory
terms, covenants and conditions contained in this Lease, except
that (i) the rights of Tenant named herein under the new lease
shall be subject to the possessory rights of the assignee under
this Lease and the possessory rights of any persons or entities
claiming through or under such assignee or by virtue of any statute
or of any order of any court, (ii) such new lease shall
require all defaults existing under this Lease to be cured by
Tenant named herein with due diligence, and (iii) such new
lease shall require Tenant named herein to pay all Rent which, had
this Lease not been so disaffirmed, rejected or terminated, would
have become due under the provisions of this Lease after the date
of such disaffirmance, rejection or termination with respect to any
period prior thereto. If Tenant named herein defaults in its
obligations to enter into such new lease for a period of ten
(10) days after Landlord’s request, then, in addition to
all other rights and remedies by reason of default, either at law
or in equity, Landlord shall have the same rights and remedies
against Tenant named herein as if it had entered into such new
lease and such new lease had thereafter been terminated as of the
commencement date thereof by reason of Tenant’s default
thereunder.

 

 



 

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ARTICLE 14

 


ACCESS TO PREMISES

 


Section
14.1 Landlord’s Access.

 


(a) Subject
to the terms of Section 26.24 below, Landlord,
Landlord’s agents and utility service providers servicing the
Real Property may erect, use and maintain concealed ducts, pipes
and conduits in and through the Premises provided such use does not
cause the usable area of the Premises to be reduced beyond a
de minimis amount. Landlord
shall promptly repair any damage to the Premises caused by any work
performed pursuant to this Article 14.

 


(b) Subject
to the terms of Section 26.24 below, Landlord, any Lessor or
Mortgagee and any other party designated by Landlord and their
respective agents shall have the right to enter the Premises at all
reasonable times, upon reasonable notice (which notice may be oral
by electronic mail) except in the case of emergency (in which event
no notice shall be required), to examine the Premises, to show the
Premises to prospective purchasers, Mortgagees, or Lessors and
their respective agents and representatives and to perform Work of
Improvement to the Premises or the Real Property or during the last
twelve (12) months to prospective tenants.

 


(c) All
parts (except surfaces facing the interior of the Premises) of all
walls, windows and doors bounding the Premises, all balconies,
terraces and roofs adjacent to the Premises, all space in or
adjacent to the Premises used for shafts, stacks, stairways, mail
chutes, conduits and other mechanical facilities, Building Systems,
Building facilities and Common Areas are not part of the Premises,
and Landlord shall have the use thereof and access thereto through
the Premises for the purposes of Building operation, maintenance,
alteration and repair.


 


Section
14.2 Building Name. Landlord has the right at any time to change the
name, number or designation by which the Building is commonly
known.

 


Section
14.3 Light and Air. If at any time any windows of the Premises are
temporarily darkened or covered over by reason of any Work of
Improvement, any of such windows are permanently darkened or
covered over due to any Requirement or there is otherwise a
diminution of light, air or view by another structure which may
hereafter be erected (whether or not by Landlord), Landlord shall
not be liable for any damages and Tenant shall not be entitled to
any compensation or abatement of any Rent, nor shall the same
release Tenant from its obligations hereunder or constitute an
actual or constructive eviction.

 



ARTICLE 15

 


DEFAULT

 


Section
15.1 Tenant’s Defaults. Each of the following events shall be an
“Event
of Default”
hereunder:

 


(a) Tenant
fails to pay when due any installment of Rent (provided that Tenant
shall be entitled to a grace period before such failure to pay
shall constitute an Event of Default of five (5) Business Days
after written notice by Landlord to Tenant that such amount is past
due for the first late payment of Rent during any twelve (12) month
period); or

 


(b) Except
for an Event of Default falling within the terms of
subsections (a), (c), (d), (e) or (f), hereof, Tenant fails to
observe or perform any other term, covenant or condition of this
Lease and such failure continues for more than
thirty (30) days after notice by Landlord to Tenant of
such default, or if such default is of a nature that it cannot be
completely remedied within thirty (30) days, failure by Tenant
to commence to remedy such failure within said thirty
(30) days, and thereafter diligently prosecute to completion
all steps necessary to remedy such default, provided in all events
the same is completed within ninety (90) days; or

 



 

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(c) Tenant
fails to observe or perform according to the provisions of
Articles 3 or 9 or Section 26.10 of this Lease where such
failure continues for more than three (3) Business Days after
notice from Landlord; or

 


(d) if
Landlord applies or retains any part of the security held by it
hereunder, and Tenant fails to deposit with Landlord the amount so
applied or retained by Landlord, within five (5) Business Days
after notice by Landlord to Tenant stating the amount applied,
retained, as applicable; or

 


(e) Tenant
files a voluntary petition in bankruptcy or insolvency, or is
adjudicated a bankrupt or insolvent, or files any petition or
answer seeking any reorganization, liquidation, dissolution or
similar relief under any present or future federal bankruptcy act
or any other present or future applicable federal, state or other
statute or law, or makes an assignment for the benefit of creditors
or seeks or consents to or acquiesces in the appointment of any
trustee, receiver, liquidator or other similar official for Tenant
or for all or any part of Tenant’s property; or

 


(f) A
court of competent jurisdiction shall enter an order, judgment or
decree adjudicating Tenant bankrupt, or appointing a trustee,
receiver or liquidator of Tenant, or of the whole or any
substantial part of its property, without the consent of Tenant, or
approving a petition filed against Tenant seeking reorganization or
arrangement of Tenant under the bankruptcy laws of the United
States, as now in effect or hereafter amended, or any state
thereof, and such order, judgment or decree shall not be vacated or
set aside or stayed within sixty (60) days from the date of
entry thereof.

 


The
notice periods provided herein are in lieu of, and not in addition
to, any notice periods provided by applicable
Requirements.

 


Section
15.2 Landlord’s Remedies. If Landlord elects to terminate this
Lease, pursuant to Section 1951.2 of the California Civil
Code, Landlord shall be entitled to recover from Tenant the
aggregate of:

 


(a) The
worth at the time of award of the unpaid rent earned as of the date
of the termination hereof;

 


(b) The
worth at the time of award of the amount by which the unpaid rent
which would have been earned after the date of termination hereof
until the time of award exceeds the amount of such rental loss that
Tenant proves could have been reasonably avoided;

 


(c) The
worth at the time of award of the amount by which the unpaid rent
for the balance of the Term after the time of award exceeds the
amount of such rental loss that Tenant proves could be reasonably
avoided;

 


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

 


(i) Any
other amount which Landlord may hereafter be permitted to recover
from Tenant to compensate Landlord for the detriment caused by
Tenant’s default.

 


For the
purposes of this Section 15.2, "rent" shall be deemed to be
and to mean all sums of every nature required to be paid by Tenant
pursuant to the terms of this Lease, whether to Landlord or to
others, the “time of award” shall mean the date upon
which the judgment in any action brought by Landlord against Tenant
by reason of such Event of Default is entered or such earlier date
as the court may determine; the “worth at the time of
award” of the amounts referred to in Sections 15.2(a)
and 15.2(b)(shall be computed by allowing interest on such amounts
at the Interest Rate; and the “worth at the time of
award” of the amount referred to in Section 15.2(c)
shall be computed by discounting such amount at the discount rate
of the Federal Reserve Bank of San Francisco at the time of award
plus one percent (1%) per annum. Tenant agrees that such charges
shall be recoverable by Landlord under California Code of Civil
Procedure Section 1174(b) or any similar, successor or related
provision of law.

 



 

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Section
15.3 Recovering Rent as It Comes
Due. Upon any Event of Default,
in addition to any other remedies available to Landlord at law or
in equity or under this Lease, Landlord shall have the remedy
described in California Civil Code Section 1951.4 (lessor may
continue lease in effect after lessee’s breach and
abandonment and recover rent as it becomes due, if lessee has the
right to sublet or assign, subject only to reasonable limitations).
Accordingly, if Landlord does not elect to terminate this Lease,
Landlord may, from time to time, enforce all of its rights and
remedies under this Lease, including the right to recover all Rent
as it becomes due. Such remedy may be exercised by Landlord without
prejudice to its right thereafter to terminate this Lease in
accordance with the other provisions contained in this
Article 15. Landlord’s reentry to perform acts of
maintenance or preservation of, or in connection with efforts to
relet, the Premises, or any portion thereof, or the appointment of
a receiver upon Landlord’s initiative to protect
Landlord’s interest under this Lease shall not terminate
Tenant’s right to possession of the Premises or any portion
thereof and, until Landlord elects to terminate this Lease, this
Lease shall continue in full force and Landlord may pursue all its
remedies hereunder. Nothing in this Article 15 shall be deemed
to affect Landlord’s right to indemnification, under the
indemnification clauses contained in this Lease, for Losses arising
from events occurring prior to the termination of this
Lease.

 


Section
15.4 Reletting on Tenant’s
Behalf. If Tenant abandons the
Premises or if Landlord elects to reenter or takes possession of
the Premises pursuant to any legal proceeding or pursuant to any
notice provided by Requirements, and until Landlord elects to
terminate this Lease, Landlord may, from time to time, without
terminating this Lease, recover all Rent as it becomes due pursuant
to Section 15.3 and/or relet the Premises or any part thereof
for the account of and on behalf of Tenant, on any terms, for any
term (whether or not longer than the Term), and at any rental as
Landlord in its reasonable discretion may deem advisable, and
Landlord may make any Work of Improvement to the Premises in
connection therewith. Tenant hereby irrevocably constitutes and
appoints Landlord as its attorney-in-fact, which appointment shall
be deemed coupled with an interest and shall be irrevocable, for
purposes of reletting the Premises pursuant to the immediately
preceding sentence. If Landlord elects to so relet the Premises on
behalf of Tenant, then rentals received by Landlord from such
reletting shall be applied:

 


(a) First,
to reimburse Landlord for the costs and expenses of such reletting
(including costs and expenses of retaking or repossessing the
Premises, removing persons and property therefrom, securing new
tenants, and, if Landlord maintains and operates the Premises, the
costs thereof) and necessary or reasonable Work of
Improvement.

 


(b) Second,
to the payment of any indebtedness of Tenant to Landlord other than
Rent due and unpaid hereunder.

 


(c) Third,
to the payment of Rent due and unpaid hereunder, and the residue,
if any, shall be held by Landlord and applied in payment of other
or future obligations of Tenant to Landlord as the same may become
due and payable.

 


Should
the rentals received from such reletting, when applied in the
manner and order indicated above, at any time be less than the
total amount owing from Tenant pursuant to this Lease, then Tenant
shall pay such deficiency to Landlord, and if Tenant does not pay
such deficiency within five (5) days of delivery of notice
thereof to Tenant, Landlord may bring an action against Tenant for
recovery of such deficiency or pursue its other remedies hereunder
or under California Civil Code Section 1951.8, California Code
of Civil Procedure Section 1161 et seq., or any similar,
successor or related Requirements.

 


Section
15.5 General.

 


(a) All
rights, powers and remedies of Landlord hereunder and under any
other agreement now or hereafter in force between Landlord and
Tenant shall be cumulative and not alternative and shall be in
addition to all rights, powers and remedies given to Landlord at
law or in equity. The exercise of any one or more of such rights or
remedies shall not impair Landlord’s right to exercise any
other right or remedy including any and all rights and remedies of
Landlord under California Civil Code Section 1951.8,
California Code of Civil Procedure Section 1161 et seq., or
any similar, successor or related Requirements.

 

 



 

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(b) If,
after Tenant’s abandonment of the Premises, Tenant leaves
behind any of Tenant’s Property, then Landlord shall store
such Tenant’s Property at a warehouse or any other location
at the risk, expense and for the account of Tenant, and such
property shall be released only upon Tenant’s payment of such
charges, together with moving and other costs relating thereto and
all other sums due and owing under this Lease. If Tenant does not
reclaim such Tenant’s Property within the period permitted by
law, Landlord may sell such Tenant’s Property in accordance
with law and apply the proceeds of such sale to any sums due and
owing hereunder, or retain said Property, granting Tenant credit
against sums due and owing hereunder for the reasonable value of
such Property.

 


(c) To
the extent permitted by law, Tenant hereby waives all provisions
of, and protections under, any Requirement to the extent same are
inconsistent and in conflict with specific terms and provisions
hereof.

 


Section
15.6 Interest.
If any payment of Rent is not paid when due, interest shall accrue
on such payment, from the date such payment became due until paid
at the Interest Rate. Tenant acknowledges that late payment by
Tenant of Rent will cause Landlord to incur costs not contemplated
by this Lease, the exact amount of such costs being extremely
difficult and impracticable to fix. Such costs include, without
limitation, processing and accounting charges, and late charges
that may be imposed on Landlord by the terms of any note secured by
a Mortgage covering the Premises. Therefore, in addition to
interest, if any amount is not paid when due, a late charge equal
to five percent (5%) of such amount shall be assessed; provided,
however, that on two (2) occasions during any calendar year of
the Term, Landlord shall give Tenant notice of such late payment
and Tenant shall have a period of five (5) days thereafter in
which to make such payment before any late charge is assessed. Such
interest and late charges are separate and cumulative and are in
addition to and shall not diminish or represent a substitute for
any of Landlord’s rights or remedies under any other
provision of this Lease.

 


Section
15.7 Other Rights of Landlord. If Tenant fails to pay any Additional Rent when
due, Landlord, in addition to any other right or remedy, shall have
the same rights and remedies as in the case of a default by Tenant
in the payment of Fixed Rent. If Tenant is in arrears in the
payment of Rent, Tenant waives Tenant’s right, if any, to
designate the items against which any payments made by Tenant are
to be credited, and Landlord may apply any payments made by Tenant
to any items Landlord sees fit, regardless of any request by
Tenant.

 



ARTICLE 16

 


LANDLORD’S RIGHT TO CURE;
FEES AND EXPENSES

 


If
Tenant defaults in the performance of its obligations under this
Lease, Landlord, without waiving such default, may perform such
obligations at Tenant’s expense: (a) immediately, and
without notice, in the case of emergency or if the default
(i) materially interferes with the use by any other tenant of
the Building, (ii) materially interferes with the efficient
operation of the Building, (iii) results in a violation of any
Requirement, or (iv) results or will result in a cancellation
of any insurance policy maintained by Landlord, and (b) in any
other case if such default continues after thirty (30) days
from the date Landlord gives notice of Landlord’s intention
to perform the defaulted obligation. All costs and expenses
incurred by Landlord in connection with any such performance by it
and all costs and expenses, including reasonable counsel fees,
incurred by Landlord in any action or proceeding (including any
unlawful detainer proceeding) brought by Landlord or in which
Landlord is a party to enforce any obligation of Tenant under this
Lease and/or right of Landlord in or to the Premises or as a result
of any default by Tenant under this Lease, shall be paid by Tenant
to Landlord on demand, with interest thereon at the Interest Rate
from the date incurred by Landlord. Except as expressly provided to
the contrary in this Lease, all costs and expenses which, pursuant
to this Lease are incurred by Landlord and payable to Landlord by
Tenant, and all charges, amounts and sums payable to Landlord by
Tenant for any property, material, labor, utility or other services
which, pursuant to this Lease, are attributable directly to
Tenant’s use and occupancy of the Premises or presence at the
Building, or at the request and for the account of Tenant, are
provided, furnished or rendered by Landlord, shall become due and
payable by Tenant to Landlord within thirty (30) days after receipt
of Landlord’s invoice for such amount.

 

 



 

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ARTICLE 17

 


NO REPRESENTATIONS BY LANDLORD;
LANDLORD’S APPROVAL

 


Section
17.1 No Representations. Except as expressly set forth herein, Landlord
and Landlord’s agents have made no warranties,
representations, statements or promises with respect to the
Building, the Real Property or the Premises and no rights,
easements or licenses are acquired by Tenant by implication or
otherwise. Tenant is entering into this Lease after full
investigation and is not relying upon any statement or
representation made by Landlord not embodied in this
Lease.

 


Section
17.2 No Money Damages. Wherever in this Lease Landlord’s consent
or approval is required, if Landlord refuses to grant such consent
or approval, whether or not Landlord expressly agreed that such
consent or approval would not be unreasonably withheld, conditioned
or delayed, Tenant shall not make or exercise, and Tenant hereby
waives, any claim for money damages (including any claim by way of
set-off, offset, counterclaim or defense) and/or any right to
terminate this Lease based upon Tenant’s claim or assertion
that Landlord unreasonably withheld, conditioned or delayed its
consent or approval. Tenant’s sole remedy shall be an action
or proceeding to enforce such provision, by specific performance,
injunction or declaratory judgment, as determined pursuant to
binding arbitration in accordance with Section 26.27 below. In no
event shall Landlord or the Parties (as that term is defined in
Section 26.3 below) be liable for, and Tenant, on behalf of itself
and all other Tenant Parties, hereby waives any claim for, any
indirect, consequential or punitive damages, including loss of
profits or business opportunity, arising under or in connection
with the Lease Documents. In no event shall Tenant be liable for,
and Landlord, on behalf of itself and all other Landlord Parties,
hereby waives any claim for any indirect, consequential or punitive
damages, including loss or profits or business opportunity, arising
under or in connection with this Lease, other than claims for
consequential damages, including loss of profit, incurred by
Landlord in connection with a holdover of the Premises by Tenant
after the expiration or earlier termination of this Lease or
incurred by Landlord arising from or in connection with the Lease
Documents or any repair, physical construction or improvement work
performed by or on behalf of Tenant in the Real
Property.

 


Section
17.3 Reasonable Efforts. For purposes of this Lease, “reasonable
efforts” by Landlord shall not include an obligation to
employ contractors or labor at overtime or other premium pay rates
or to incur any other overtime costs or additional expenses
whatsoever.

 



ARTICLE 18

 


END OF TERM

 


Section
18.1 Expiration.
Upon the expiration or other termination of this Lease, Tenant
shall quit and surrender the Premises to Landlord vacant, broom
clean and in good order and condition, ordinary wear and tear and
damage for which Tenant is not responsible under the terms of this
Lease excepted, and Tenant shall remove all of Tenant’s
Property and Specialty Alterations.

 


Section
18.2 Holdover Rent. Landlord and Tenant recognize that
Landlord’s damages resulting from Tenant’s failure to
timely surrender possession of the Premises may be substantial, may
exceed the amount of the Rent payable hereunder, and will be
impossible to accurately measure. Accordingly, if possession of the
Premises is not surrendered to Landlord on the Expiration Date or
sooner termination of this Lease, in addition to any other rights
or remedies Landlord may have hereunder or at law, Tenant shall
(a) pay to Landlord for each month (or any portion thereof)
during which Tenant holds over in the Premises after the Expiration
Date or sooner termination of this Lease, Tenant's Operating
Payment and Tenant's Tax Payment, plus a sum equal to (i) during
the first month of such holdover, 1.5 times the Base Rent payable
under this Lease for the last full calendar month of the Term, and
(ii) thereafter, 2 times the Base Rent payable under this
Lease for the last full calendar month of the Term, (b) be
liable to Landlord for (1) any payment or rent concession
which Landlord may be required to make to any tenant obtained by
Landlord for all or any part of the Premises (a
“New
Tenant”) in order to
induce such New Tenant not to terminate its lease by reason of the
holding-over by Tenant, and (2) the loss of the benefit of the
bargain if any New Tenant shall terminate its lease by reason of
the holding-over by Tenant, and (c) indemnify Landlord against
all claims for damages by any New Tenant. No holding-over by
Tenant, nor the payment to Landlord of the amounts specified above,
shall operate to extend the Term hereof. Nothing herein contained
shall be deemed to permit Tenant to retain possession of the
Premises after the Expiration Date or sooner termination of this
Lease, and no acceptance by Landlord of payments from Tenant after
the Expiration Date or sooner termination of this Lease shall be
deemed to be other than on account of the amount to be paid by
Tenant in accordance with the provisions of this
Section 18.2.

 

 



 

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ARTICLE 19

 


QUIET ENJOYMENT

 


Provided this Lease
is in full force and effect and no Event of Default then exists,
Tenant may peaceably and quietly enjoy the Premises without
hindrance by Landlord or any person lawfully claiming through or
under Landlord, subject to the terms and conditions of this Lease
and to all Superior Leases and Mortgages.

 



ARTICLE 20

 


NO SURRENDER; NO
WAIVER

 


Section
20.1 No Surrender or Release. No act or thing done by Landlord or
Landlord’s agents or employees during the Term shall be
deemed an acceptance of a surrender of the Premises, and no
provision of this Lease shall be deemed to have been waived by
Landlord, unless such waiver is in writing and is signed by
Landlord, or Tenant, as applicable.

 


Section
20.2 No Waiver.
The failure of either party to seek redress for violation of, or to
insist upon the strict performance of, any covenant or condition of
this Lease, or any of the Rules and Regulations, shall not be
construed as a waiver or relinquishment for the future performance
of such obligations of this Lease or the Rules and Regulations, or
of the right to exercise such election but the same shall continue
and remain in full force and effect with respect to any subsequent
breach, act or omission. The receipt by Landlord of any Rent
payable pursuant to this Lease or any other sums with knowledge of
the breach of any covenant of this Lease shall not be deemed a
waiver of such breach. No payment by Tenant or receipt by Landlord
of a lesser amount than the monthly Rent herein stipulated shall be
deemed to be other than a payment on account of the earliest
stipulated Rent, or as Landlord may elect to apply such payment,
nor shall any endorsement or statement on any check or any letter
accompanying any check or payment as Rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord’s right to recover the balance of such
Rent or pursue any other remedy provided in this Lease. Tenant's
payment of any Rent hereunder shall not constitute a waiver by
Tenant of any breach or default by Landlord under this
Lease.

 



ARTICLE 21

 


WAIVER OF TRIAL BY JURY;
COUNTERCLAIM

 


Section
21.1 Jury Trial Waiver. THE PARTIES HEREBY AGREE THAT THIS LEASE
CONSTITUTES A WRITTEN CONSENT TO WAIVER OF TRIAL BY JURY PURSUANT
TO THE PROVISIONS OF CALIFORNIA CODE OF CIVIL PROCEDURE
SECTION 631 AND EACH PARTY DOES HEREBY CONSTITUTE AND APPOINT
THE OTHER PARTY ITS TRUE AND LAWFUL ATTORNEY-IN-FACT, WHICH
APPOINTMENT IS COUPLED WITH AN INTEREST, AND EACH PARTY DOES HEREBY
AUTHORIZE AND EMPOWER THE OTHER PARTY, IN THE NAME, PLACE AND STEAD
OF SUCH PARTY, TO FILE THIS LEASE WITH THE CLERK OR JUDGE OF ANY
COURT OF COMPETENT JURISDICTION AS A STATUTORY WRITTEN CONSENT TO
WAIVER OF TRIAL BY JURY.

 



LANDLORD’S
INITIALS: _____

TENANT’S
INITIALS: _____





 


Section
21.2 Waiver of Counterclaim. If Landlord commences any summary proceeding
against Tenant, Tenant will not interpose any counterclaim of any
nature or description in any such proceeding (unless failure to
interpose such counterclaim would preclude Tenant from asserting in
a separate action the claim which is the subject of such
counterclaim), and will not seek to consolidate such proceeding
with any other action which may have been or will be brought in any
other court by Tenant.

 

 



 

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ARTICLE 22

 


NOTICES

 


Except
as otherwise expressly provided in this Lease, all consents,
notices, demands, requests, approvals or other communications given
under this Lease shall be in writing and shall be deemed
sufficiently given or rendered if delivered by hand (provided a
signed receipt is obtained) or if sent by registered or certified
mail (return receipt requested) or by a nationally recognized
overnight delivery service making receipted deliveries, addressed
to Landlord and Tenant as set forth in Article 1, and to any
Mortgagee or Lessor who shall require copies of notices and whose
address is provided to Tenant, or to such other address(es) as
Landlord, Tenant or any Mortgagee or Lessor may designate as its
new address(es) for such purpose by notice given to the other in
accordance with the provisions of this Article 22. Any such
approval, consent, notice, demand, request or other communication
shall be deemed to have been given on the date of receipted
delivery, refusal to accept delivery or when delivery is first
attempted but cannot be made due to a change of address for which
no notice is given or three (3) Business Days after it
shall have been mailed as provided in this Article 22,
whichever is earlier.

 



ARTICLE 23

 


RULES AND
REGULATIONS

 


All
Tenant Parties shall observe and comply with the Rules and
Regulations, as supplemented or amended from time to time. Landlord
reserves the right, from time to time with reasonable amendments or
supplements, to adopt additional reasonable Rules and Regulations
and to amend the Rules and Regulations then in effect with
reasonable amendments or supplements. Nothing contained in this
Lease shall impose upon Landlord any obligation to enforce the
Rules and Regulations or terms, covenants or conditions in any
other lease against any other Building tenant, and Landlord shall
not be liable to Tenant for violation of the same by any other
tenant, its employees, agents, visitors or licensees, provided that
Landlord shall enforce the Rules or Regulations against Tenant in a
non-discriminatory fashion.

 



ARTICLE 24

 


BROKER

 


Landlord has
retained Landlord’s Agent as leasing agent in connection with
this Lease and Landlord will be solely responsible for any fee that
may be payable to Landlord’s Agent. Landlord agrees to pay a
commission to Tenant’s Broker in connection with this Lease
pursuant to a separate written agreement between Landlord and
Tenant's Broker. Each of Landlord and Tenant represents and
warrants to the other that neither it nor its agents have dealt
with any broker in connection with this Lease other than
Landlord’s Agent and Tenant’s Broker. Each of Landlord
and Tenant shall indemnify, defend, protect and hold the other
party harmless from and against any and all Losses which the
indemnified party may incur by reason of any claim of or liability
to any broker, finder or like agent (other than Landlord’s
Agent and Tenant’s Broker) arising out of any dealings
claimed to have occurred between the indemnifying party and the
claimant in connection with this Lease, and/or the above
representation being false.

 



ARTICLE 25

 


INDEMNITY

 


Section
25.1 Waiver of Liability. Neither Landlord nor any of its Indemnitees
shall be liable or responsible in any way for, and Tenant hereby
waives all claims against the Indemnitees with respect to or
arising out of (a) any death or any injury of any nature
whatsoever that may be suffered or sustained by Tenant or any
employee, licensee, invitee, guest, agent or customer of Tenant or
any other person, from any causes whatsoever except to the extent
such injury or death is caused by the gross negligence or willful
misconduct of the Indemnitees; or (b) any loss or damage or
injury to any property outside or within the Premises belonging to
Tenant or its employees, agents, customers, licensees, invitees,
guests or any other person; except to the extent such injury or
damage is to property not covered by insurance carried (or required
to be carried) by Tenant and is caused by the gross negligence or
willful misconduct of the Indemnitees. Subject to the foregoing,
none of the Indemnitees shall be liable for any damage or damages
of any nature whatsoever to persons or property caused by
explosion, fire, theft or breakage, by sprinkler, drainage or
plumbing systems, by failure for any cause to supply adequate
drainage, by the interruption of any public utility or service, by
steam, gas, water, rain or other substances leaking, issuing or
flowing into any part of the Premises, by natural occurrence, acts
of the public enemy, riot, strike, insurrection, war, court order,
requisition or order of governmental body or authority, or for any
damage or inconvenience which may arise through repair, maintenance
or alteration of any part of the Building, or by anything done or
omitted to be done by any tenant, occupant or person in the
Building. In addition, none of the Indemnitees shall be liable for
any loss or damage for which Tenant is required to insure, nor for
any loss or damage resulting from any construction, alterations or
repair.

 

 



 

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Section
25.2 Tenant’s Indemnity. Tenant shall not do or permit to be done any act
or thing upon the Premises or the Real Property which may subject
Landlord to any liability or responsibility for injury, damages to
persons or property or to any liability by reason of any violation
of any Requirement, and shall exercise such control over the
Premises as to fully protect Landlord against any such liability.
Except to the extent of any such injury or damage resulting from
the negligence or willful misconduct of Landlord or
Landlord’s agents or employees, Tenant shall indemnify,
defend, protect and hold harmless each of the Indemnitees from and
against any and all Losses, resulting from any claims
(i) against the Indemnitees arising from any act, omission or
negligence of any Tenant Party, (ii) against the Indemnitees
arising from any accident, injury or damage to any person or to the
property of any person and occurring in or about the Premises, and
(iii) against the Indemnitees resulting from any breach,
violation or nonperformance of any covenant, condition or agreement
of this Lease on the part of Tenant to be fulfilled, kept, observed
or performed.

 


Section
25.3 Landlord’s Indemnity. Landlord shall indemnify, protect, defend and
hold harmless Tenant from and against all Losses incurred by Tenant
arising from any accident, injury or damage whatsoever caused to
any person or the property of any person in or about the Common
Areas (specifically excluding the Premises) to the extent
attributable to the gross negligence or willful misconduct of
Landlord or its employees or agents.

 


Section
25.4 Defense and Settlement. If any claim, action or proceeding is made or
brought against any Indemnitee, then upon demand by an Indemnitee,
Tenant, at its sole cost and expense, shall resist or defend such
claim, action or proceeding in the Indemnitee’s name (if
necessary), by attorneys approved by the Indemnitee, which approval
shall not be unreasonably withheld (attorneys for Tenant’s
insurer shall be deemed approved for purposes of this
Section 25.4). Notwithstanding the foregoing, an Indemnitee
may retain its own attorneys to participate or assist in defending
any claim, action or proceeding involving potential liability in
excess of the amount available under Tenant’s liability
insurance carried under Section 11.1 for such claim and Tenant
shall pay the reasonable fees and disbursements of such attorneys.
If Tenant fails to diligently defend or if there is a legal
conflict or other conflict of interest, then Landlord may retain
separate counsel at Tenant’s expense. Notwithstanding
anything herein contained to the contrary, Tenant may direct the
Indemnitee to settle any claim, suit or other proceeding provided
that (a) such settlement shall involve no obligation on the
part of the Indemnitee other than the payment of money,
(b) any payments to be made pursuant to such settlement shall
be paid in full exclusively by Tenant at the time such settlement
is reached, (c) such settlement shall not require the
Indemnitee to admit any liability, and (d) the Indemnitee
shall have received an unconditional release from the other parties
to such claim, suit or other proceeding.

 



ARTICLE 26

 


MISCELLANEOUS

 


Section
26.1 Delivery.
This Lease shall not be binding upon Landlord or Tenant unless and
until Landlord shall have executed and delivered a fully executed
copy of this Lease to Tenant.

 


Section
26.2 Transfer of Real Property. Provided that the transferee assumes in writing
the obligations of Landlord hereunder arising from and after the
date of the Landlord Transfer (as defined hereinbelow),
Landlord’s obligations under this Lease shall not be binding
upon the Landlord named herein after the sale, conveyance,
assignment or transfer (collectively, a “Landlord
Transfer”) by such
Landlord (or upon any subsequent landlord after the Landlord
Transfer by such subsequent landlord) of its interest in the
Building or the Real Property, as the case may be, and in the event
of any such Landlord Transfer, Landlord (and any such subsequent
Landlord) shall be entirely freed and relieved of all covenants and
obligations of Landlord hereunder arising from and after the date
of the Landlord Transfer, and the transferee of Landlord’s
interest (or that of such subsequent Landlord) in the Building or
the Real Property, as the case may be, shall be deemed to have
assumed all obligations under this Lease arising from and after the
date of the Landlord Transfer.

 

 



 

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Section
26.3 Limitation on Liability. The liability of Landlord for Landlord’s
obligations under this Lease and any other documents, including,
any lease amendment thereto, executed by Landlord and Tenant in
connection with this Lease (collectively, the "Lease
Documents") shall be limited to
Landlord’s interest in the Real Property and Tenant shall not
look to any other property or assets of Landlord or the property or
assets of any direct or indirect partner, member, manager,
shareholder, director, officer, principal, employee or agent of
Landlord (collectively, the “Parties”) in seeking either to enforce
Landlord’s obligations under the Lease Documents or to
satisfy a judgment for Landlord’s failure to perform such
obligations; and none of the Parties shall be personally liable for
the performance of Landlord’s obligations under the Lease
Documents. Further, it is expressly understood and agreed that
notwithstanding anything in this Lease to the contrary, and
notwithstanding any applicable Requirement to the contrary, neither
Tenant's officers, directors, shareholders, members, managers,
principals, employees or agents shall have any personal liability
for the obligations of this Lease and Landlord hereby expressly
waives and releases such personal liability on behalf of itself and
all persons claiming by, through or under
Landlord.

 


Section
26.4 Rent. All
amounts payable by Tenant to or on behalf of Landlord under this
Lease, whether or not expressly denominated Fixed Rent,
Tenant’s Tax Payment, Tenant’s Operating Payment,
Additional Rent or Rent, shall constitute rent for the purposes of
Section 502(b)(6) of the United States Bankruptcy
Code.

 


Section
26.5 Entire Document. This Lease (including any Schedules and Exhibits
referred to herein and all supplementary agreements provided for
herein) contains the entire agreement between the parties and all
prior negotiations and agreements are merged into this Lease. All
of the Schedules and Exhibits attached hereto are incorporated in
and made a part of this Lease, provided that in the event of any
inconsistency between the terms and provisions of this Lease and
the terms and provisions of the Schedules and Exhibits hereto, the
terms and provisions of this Lease shall
control.

 


Section
26.6 Governing Law. This Lease shall be governed in all respects by
the laws of the State of California.

 


Section
26.7 Unenforceability. If any provision of this Lease, or its
application to any person or entity or circumstance, shall ever be
held to be invalid or unenforceable, then in each such event the
remainder of this Lease or the application of such provision to any
other person or entity or any other circumstance (other than those
as to which it shall be invalid or unenforceable) shall not be
thereby affected, and each provision hereof shall remain valid and
enforceable to the fullest extent permitted by
law.

 


Section
26.8 Lease Disputes.

 


(a) Tenant
agrees that all disputes arising, directly or indirectly, out of or
relating to this Lease, and all actions to enforce this Lease,
shall be dealt with and adjudicated in the state courts of the
State of California or the United States District Court for the
Central District of California and for that purpose hereby
expressly and irrevocably submits itself to the jurisdiction of
such courts. Tenant agrees that so far as is permitted under
applicable Requirements, this consent to personal jurisdiction
shall be self-operative and no further instrument or action, other
than service of process in one of the manners specified in this
Lease, or as otherwise permitted by law, shall be necessary in
order to confer jurisdiction upon it in any such
court.

 


(b) To
the extent that Tenant has or hereafter may acquire any immunity
from jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment
in aid of execution, execution or otherwise) with respect to itself
or its property, Tenant irrevocably waives such immunity in respect
of its obligations under this Lease.

 


Section
26.9 Landlord’s Agent. Unless Landlord delivers notice to Tenant to the
contrary, Landlord’s Agent is authorized to act as
Landlord’s agent in connection with the performance of this
Lease, and Tenant shall be entitled to rely upon correspondence
received from Landlord’s Agent. Tenant acknowledges that
Landlord’s Agent is acting solely as agent for Landlord in
connection with the foregoing; and neither Landlord’s Agent
nor any of its direct or indirect partners, members, managers,
officers, shareholders, directors, employees, principals, agents or
representatives shall have any liability to Tenant in connection
with the performance of this Lease, and Tenant waives any and all
claims against any and all of such parties arising out of, or in
any way connected with, this Lease, the Building or the Real
Property.

 

 



 

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Section
26.10 Estoppel. Within seven (7) Business
Days following request from Landlord, any Mortgagee or any Lessor,
Tenant shall deliver to Landlord a statement executed and
acknowledged by Tenant, in form reasonably satisfactory to
Landlord, (a) stating the Commencement Date and the Expiration
Date, and that this Lease is then in full force and effect and has
not been modified (or if modified, setting forth all
modifications), (b) setting forth the date to which the Fixed
Rent and any Additional Rent have been paid, together with the
amount of monthly Fixed Rent and Additional Rent then payable,
(c) stating whether or not, to the best of Tenant’s
knowledge, Landlord is in default under this Lease, and, if
Landlord is in default, setting forth the specific nature of all
such defaults, (d) stating the amount of the Letter of Credit,
if any, and/or the Security Deposit, if any, under this Lease,
(e) stating whether there are any subleases or assignments
affecting the Premises, (f) stating the address of Tenant to
which all notices and communications under the Lease shall be sent,
and (g) responding to any other matters reasonably requested
by Landlord, such Mortgagee or such Lessor. Tenant acknowledges
that any statement delivered pursuant to this Section 26.10
may be relied upon by any purchaser or owner of the Real Property
or the Building, or all or any portion of Landlord’s interest
in the Real Property or the Building or any Superior Lease, or by
any Mortgagee, or assignee thereof or by any Lessor, or assignee
thereof.

 


Section
26.11 Certain Interpretational Rules. For
purposes of this Lease, whenever the words “include”,
“includes”, or “including” are used, they
shall be deemed to be followed by the words “without
limitation” and, whenever the circumstances or the context
requires, the singular shall be construed as the plural, the
masculine shall be construed as the feminine and/or the neuter and
vice versa. This Lease
shall be interpreted and enforced without the aid of any canon,
custom or rule of law requiring or suggesting construction against
the party drafting or causing the drafting of the provision in
question. The captions in this Lease are inserted only as a matter
of convenience and for reference and in no way define, limit or
describe the scope of this Lease or the intent of any provision
hereof.

 


Section
26.12 Parties Bound. The terms, covenants,
conditions and agreements contained in this Lease shall bind and
inure to the benefit of Landlord and Tenant and, except as
otherwise provided in this Lease, to their respective legal
representatives, successors, and assigns.

 


Section
26.13 Memorandum of Lease. This Lease shall
not be recorded; however, at Landlord’s request, Landlord and
Tenant shall promptly execute, acknowledge and deliver a memorandum
with respect to this Lease sufficient for recording and Landlord
may record the memorandum. Within ten (10) days after the end
of the Term, Tenant shall enter into such documentation as is
reasonably required by Landlord to remove the memorandum of
record.

 


Section
26.14 Counterparts; Execution By Telefacsimile or PDF
format. This Lease may be
executed in 2 or more counterparts, each of which shall constitute
an original, but all of which, when taken together, shall
constitute but one instrument. Signatures of the parties
transmitted by telefacsimile or electronic mail PDF format shall be
deemed to constitute originals and may be relied upon, for all
purposes, as binding the transmitting party hereto. The parties
intend to be bound by the signatures transmitted by telefacsimile
or electronic mail PDF format, are aware that the other party will
rely on such signature, and hereby waive any defenses to the
enforcement of the terms of this Lease based on the form of
signature.

 


Section
26.15 Survival.
All obligations and liabilities of Landlord or Tenant to the other
which accrued before the expiration or other termination of this
Lease, and all such obligations and liabilities which by their
nature or under the circumstances can only be, or by the provisions
of this Lease may be, performed after such expiration or other
termination, shall survive the expiration or other termination of
this Lease. Without limiting the generality of the foregoing, the
rights and obligations of the parties with respect to any indemnity
under this Lease, and with respect to any Rent and any other
amounts payable under this Lease, shall survive the expiration or
other termination of this Lease.

 


Section
26.16 Code Waivers. Tenant hereby waives any and all rights under
and benefits of Subsection 1 of Section 1931, 1932,
Subdivision 2, 1933, Subdivision 4, 1941, 1942 and 1950.7
(providing that a Landlord may only claim from a security deposit
only those sums reasonably necessary to remedy defaults in the
payment of rent, to repair damage caused by a tenant or to clean
the premises) of the California Civil Code, Section 1265.130
of the California Code of Civil Procedure (allowing either party to
petition a court to terminate a lease in the event of a partial
taking), and Section 1174(c) of the California Code of Civil
Procedure and Section 1951.7 of the California Civil Code
(providing for Tenant’s right to satisfy a judgment in order
to prevent a forfeiture of this Lease or requiring Landlord to
deliver written notice to Tenant of any reletting of the Premises),
and any similar law, statute or ordinance now or hereinafter in
effect.

 

 



 

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Section
26.17 Inability to Perform. This Lease and the obligation of Tenant to pay
Rent and to perform all of the other covenants and agreements of
Tenant hereunder shall not be affected, impaired or excused by any
Unavoidable Delays. Landlord shall use reasonable efforts to
promptly notify Tenant of any Unavoidable Delay which prevents
Landlord from fulfilling any of its obligations under this
Lease.

 


Section
26.18 Substitution of Other
Premises. Landlord shall have
the right to move Tenant to other space in the Building comparable
to the Premises, and all terms hereof shall apply to the new space
with equal force. In such event, Landlord shall give Tenant prior
notice, shall provide Tenant, at Landlord’s sole cost and
expense, with tenant improvements at least equal in quality to
those in the Premises and shall move Tenant’s effects to the
new space at Landlord’s sole cost and expense at such time
and in such manner as to inconvenience Tenant as little as
reasonably practicable. Simultaneously with such relocation of the
Premises, the parties shall immediately execute an amendment to
this Lease stating the relocation of the Premises. Landlord shall
not exercise its relocation right under this Section 26.18 during
the initial Term.

 


Section
26.19 Financial Statements. Within one hundred twenty (120) days after
the completion of Tenant’s fiscal year, Tenant shall deliver
to Landlord (i) Tenant’s audited financial statements
for the most recently completed fiscal year or (ii) if audited
statements for Tenant are not prepared, then unaudited financial
statements for the most recent fiscal year of Tenant which shall be
certified to be true and correct by Tenant’s Chief Financial
Officer. Upon Landlord’s request, Tenant shall provide such
additional information as Landlord may reasonably request to enable
Landlord to assess the credit-worthiness of Tenant as a tenant of
the Building. Landlord shall endeavor to ensure that all financial
statements furnished by Tenant are kept confidential by Landlord
and any Mortgagee or prospective purchaser that may receive the
same, and that such statements are used only for the purpose of
assessing the credit-worthiness of Tenant as a tenant of the
Building. Notwithstanding the foregoing, in the event that (i)
stock in the entity which constitutes Tenant under this Lease (as
opposed to an entity that "controls" Tenant or is otherwise an
"affiliate" of Tenant, as those terms are defined in Section 14.8
of this Lease) is publicly traded on a national stock exchange, and
(ii) Tenant has its own, separate and distinct 10K and 10Q filing
requirements (as opposed joint or cumulative filings with an entity
that controls Tenant or with entities which are otherwise
Affiliates of Tenant), then Tenant's obligation to provide Landlord
with a copy of its most recent current financial statement shall be
deemed satisfied.

 



Section
26.20 Development of the Real
Property. Landlord reserves the
right to subdivide all or a portion of the Real Property. Tenant
agrees to execute and deliver, within ten (10) Business Days
following demand by Landlord and in the form requested by Landlord,
any additional, commercially reasonable documents needed to conform
this Lease to the circumstances resulting from such subdivision,
provided such documents do not increase Tenant's obligations nor
diminish Tenant's rights hereunder or materially and adversely
interfere with Tenant's use of the Premises for the Permitted Uses
(including Tenant's use of and access to the Premises, Building and
Building Parking Facility. If portions of the Real Property or
property adjacent to the Real Property (collectively, the
“Other
Improvements”) are owned
or later acquired by an entity other than Landlord or an affiliate
of Landlord, Landlord, at its option, may enter into an agreement
with the owner or owners of any or all of the Other Improvements to
provide (i) for reciprocal rights of access and/or use of the
Real Property and the Other Improvements, (ii) for the common
management, operation, maintenance, improvement and/or repair of
all or any portion of the Real Property and the Other Improvements,
provided that Tenant’s rights under this Lease are not
materially impaired, (iii) for the allocation of a portion of
the Operating Expenses and Taxes to the Other Improvements and the
operating expenses and taxes for the Other Improvements to the Real
Property, and (iv) for the use or improvement of the Other
Improvements and/or the Real Property in connection with the
improvement, construction, and/or excavation of the Other
Improvements and/or the Real Property so long as any such actions
do not materially and adversely interfere with Tenant's use of or
access to the Premises for the Permitted Uses (including Tenant's
use of and access to the Building and Building Parking Facility)
and do not increase Tenant's obligations nor diminish Tenant's
rights hereunder. Nothing contained herein shall be deemed or
construed to limit or otherwise affect Landlord’s right to
convey all or any portion of the Real Property or any other of
Landlord’s rights described in this
Lease.

 

 



 

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Section 26.21 Tax Status of Beneficial
Owner. Tenant recognizes
and acknowledges that Landlord and/or certain beneficial owners of
Landlord may from time to time qualify as real estate investment
trusts pursuant to Sections 856 et seq. of the Tax Code and that
avoiding (a) the loss of such status, (b) the receipt of any income
derived under any provision of this Lease that does not constitute
“rents from real property” (in the case of real estate
investment trusts), and (c) the imposition of income, penalty or
similar taxes (each an “Adverse Event”) is of material
concern to Landlord and such beneficial owners. In the event that
this Lease or any document contemplated hereby could, in the
opinion of counsel to Landlord, result in or cause an Adverse
Event, Tenant agrees to cooperate with Landlord in negotiating an
amendment or modification thereof and shall at the request of
Landlord execute and deliver such documents reasonably required to
effect such amendment or modification. Any amendment or
modification pursuant to this Section 26.21 shall be structured so
that the economic results to Landlord and Tenant shall be
substantially similar to those set forth in this Lease without
regard to such amendment or modification. Without limiting any of
Landlord's other rights under this Section 26.21, Landlord may
waive the receipt of any amount payable to Landlord hereunder and
such waiver shall constitute an amendment or modification of this
Lease with respect to such payment. Tenant expressly covenants and
agrees not to enter into any sublease or assignment which provides
for rental or other payment for such use, occupancy, or utilization
based in whole or in part on the net income or profits derived by
any person from the property leased, used, occupied, or utilized
(other than an amount based on a fixed percentage or percentages of
receipts or sales), and that any such purported sublease or
assignment shall be absolutely void and ineffective as a conveyance
of any right or interest in the possession, use, occupancy, or
utilization of any part of the Premises.

 


Section
26.22 Authority. If Tenant is a corporation,
trust, limited liability company or partnership, each individual
executing this Lease on behalf of Tenant hereby represents and
warrants that Tenant is a duly formed and existing entity qualified
to do business in California and that Tenant has full right and
authority to execute and deliver this Lease and that each person
signing on behalf of Tenant is authorized to do so. In such event,
Tenant shall, within ten (10) days after Landlord's request,
deliver to Landlord satisfactory evidence of (i) good standing in
Tenant's state of formation and (ii) qualification to do business
in California.

 


Section
26.23 Attorneys' Fees. In the event that
either Landlord or Tenant should bring suit for the possession of
the Premises, for the recovery of any sum due under this Lease, or
because of the breach of any provision of this Lease or for any
other relief against the other, then all costs and expenses,
including reasonable attorneys' fees, incurred by the prevailing
party therein shall be paid by the other party.

 


Section
26.24 Abatement Event. In the event that
Tenant is prevented from using, and does not use, the Premises or
any portion thereof, as a result of any failure to provide services
(including Landlord's failure to perform its repair or maintenance
obligations pursuant to the terms of this Lease, or due to any work
performance by Landlord or its agents or contractors), utilities or
access to the Premises to the extent Landlord is obligated to
provide same under this Lease (any such set of circumstances to be
known as an "Abatement
Event"), then Tenant shall give Landlord notice of such
Abatement Event, and if such Abatement Event continues for five (5)
consecutive Business Days after Landlord's receipt of any such
notice, (the "Eligibility
Period"), then the Fixed Rent, Tax Payment, Operating
Payment and Tenant's obligation to pay for parking (to the extent
not utilized by Tenant) shall be abated or reduced, as the case may
be, after the expiration of the Eligibility Period for such time
that Tenant continues to be so prevented from using, and does not
use, the Premises or a portion thereof, in the proportion that the
rentable area of the portion of the Premises that Tenant is
prevented from using, and does not use, bears to the total rentable
area of the Premises; provided, however, in the event that Tenant
is prevented from using, and does not use, a portion of the
Premises for a period of time in excess of the Eligibility Period
and the remaining portion of the Premises is not sufficient to
allow Tenant to effectively conduct its business therein, and if
Tenant does not conduct its business from such remaining portion,
then for such time after expiration of the Eligibility Period
during which Tenant is so prevented from effectively conducting its
business therein, the Fixed Rent, Tax Payment and Operating Payment
for the entire Premises shall be abated for such time as Tenant
continues to be so prevented from using, and does not use, the
Premises and Tenant's obligation to pay for parking shall be abated
for such time as Tenant continues to be so prevented from using,
and does not use, the Premises. If, however, Tenant reoccupies any
portion of the Premises during such period, the Rent allocable to
such reoccupied portion, based on the proportion that the rentable
area of such reoccupied portion of the Premises bears to the total
rentable area of the Premises, shall be payable by Tenant from the
date Tenant reoccupies such portion of the Premises. Such right to
abate Fixed Rent, Tax Payment and Operating Payment shall be
Tenant's sole and exclusive remedy at law or in equity for an
Abatement Event. To the extent Tenant is entitled to abatement
without regard to the Eligibility Period because of an event
described in Section 11.3 or Article 12 of this Lease, then the
Eligibility Period shall not be applicable. Except as provided in
this Section 26.24, nothing contained herein shall be interpreted
to mean that Tenant is excused from paying Rent due
hereunder.

 

 



 

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ARTICLE 27

 


SECURITY DEPOSIT

 


Section
27.1 Security Deposit. Tenant shall deposit the Security Deposit
with Landlord upon the execution of this Lease in cash as security
for the faithful performance and observance by Tenant of the terms,
covenants and conditions of this Lease.

 


Section
27.2 Application of Security. If (a) an
Event of Default by Tenant occurs in the payment or performance of
any of the terms, covenants or conditions of this Lease, including
the payment of Rent, or (b) Tenant fails to make any
installment of Rent as and when due, Landlord may apply or retain
the whole or any part of the Security Deposit, to the extent
required for the payment of any Fixed Rent or any other sum as to
which Tenant is in default or has failed to pay as and when due,
including (i) any sum which Landlord may expend or may be
required to expend by reason of Tenant’s default, and/or
(ii) any damages to which Landlord is entitled pursuant to
this Lease, whether such damages accrue before or after summary
proceedings or other reentry by Landlord. If Landlord applies or
retains any part of the Security Deposit, Tenant, upon demand,
shall deposit with Landlord the amount so applied or retained so
that Landlord shall have the full Security Deposit on hand at all
times during the Term. If Tenant shall comply with all of the
terms, covenants and conditions of this Lease, the Security Deposit
shall be returned to Tenant within forty-five (45) days after the
Expiration Date and after delivery of possession of the Premises to
Landlord in the manner required by this Lease.

 


Section
27.3 Transfer. Upon a sale or other transfer
of the Real Property or the Building, or any financing of
Landlord’s interest therein, Landlord shall have the right to
transfer the Security Deposit to its transferee or lender. Tenant
shall look solely to the new landlord or lender for the return of
such Security Deposit and the provisions hereof shall apply to
every transfer or assignment made of the Security Deposit to a new
landlord. Tenant shall not assign or encumber or attempt to assign
or encumber the Security Deposit and neither Landlord nor its
successors or assigns shall be bound by any such action or
attempted assignment, or encumbrance.

 

 



 

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ARTICLE 28

 


PARKING

 


Tenant shall have the right, but not the
obligation, to rent from Landlord, commencing on the Commencement
Date, up to fourteen (14) unreserved parking passes on a monthly
basis throughout the Term, which parking passes shall pertain to
the on-site Building parking facility servicing the Building
(“Building Parking
Facility”). A portion of
the Building Parking Facility is comprised of surface parking and
the other portion is comprised of covered parking. Tenant shall
have the right to convert up to one (1) of the unreserved parking
passes allocated to Tenant to one (1) reserved parking pass, which
reserved parking pass shall be located on the PA level of the
Building Parking Facility. The exact location of the reserved
parking pass on the PA level of the Building Parking Facility shall
be mutually determined by Tenant and Landlord, provided that such
reserved parking shall be located in the covered portion of the
Building Parking Facility. Tenant may change the number of parking
passes rented pursuant to this Article 28 upon thirty (30) days
prior written notice to Landlord, provided that in no event shall
Tenant be entitled to rent more than the amount and type of parking
passes allotted to Tenant as set forth in this Article 28 above.
Landlord shall have the right, on a temporary basis, upon not less
than 60 days prior written notice, and only in connection with a
renovation of the Building or the Building Parking Facility or an
event of emergency and in each case, only to the extent such
renovation or emergency requires closure of such Building Parking
Facility, to provide parking for the Building at off-site locations
(which off-site locations shall not be more than 1,000 feet from
the Building) other than the Building Parking Facility (without
relocating Tenant’s passes for the Building Parking Facility
as specified above. Subject to the terms above, Landlord shall have
the right to change, delete or modify such off-site parking areas.
Subject to availability (as determined by Landlord), and upon at
least thirty (30) days prior notice to Landlord, Tenant shall have
the right to rent additional parking passes from Landlord in the
Building Parking Facility (collectively, the "Additional Parking
Passes") on a month-to-month
basis. Subject to the terms of this Article 28, below, Tenant shall
pay to Landlord for automobile parking passes on a monthly basis
the prevailing rate charged (the "Parking
Charge"), which shall be
inclusive of taxes, from time to time at the location of such
parking passes, provided, however, that Tenant shall have no
obligation to pay a Parking Charge for the number of parking passes
allocated to Tenant under the terms of this Article 28 during the
initial two (2) full calendar months of the Term. Notwithstanding
the foregoing, during the initial twelve (12) months of the initial
Term only, the Parking Charges for the parking allotted to Tenant
pursuant to Article 28 above shall be fixed, without increase, (A)
at $196.27 per unreserved parking pass per month, and (B) at
$307.66 per reserved parking space per month (the foregoing rates
are inclusive of taxes). Commencing on the first day of the
thirteenth (13th) month of the initial Term and continuing annually
thereafter, the Parking Charge for parking passes shall not
increase by more than three percent (3%) per 12 month period
thereafter, on a cumulative, compounding basis, over the Parking
Charge for such parking passes in effect during the prior 12 month
period. Tenant shall abide by all reasonable rules and regulations
which are prescribed from time to time for the orderly operation
and use of the Building Parking Facility, including any hang-tag or
other identification system, which is not required to be adhered to
a vehicle and which is reasonably established by Landlord or an
operator of the Building Parking Facility, and Tenant shall
cooperate in seeing that Tenant’s employees and visitors also
comply with such rules and regulations. Landlord specifically
reserves the right to change the size, configuration, design,
layout and all other aspects of the Building Parking Facility at
any time and Tenant acknowledges and agrees that Landlord may,
without incurring any liability to Tenant and without any abatement
of Rent under this Lease, from time to time, temporarily close-off
or restrict access to the Building Parking Facility for purposes of
permitting or facilitating any such construction, alteration or
improvements (subject to terms above). Landlord may delegate its
responsibilities hereunder to a parking operator in which case such
parking operator shall have all the rights of control attributed
hereby to the Landlord. The parking passes rented by Tenant
pursuant to this Article 28 are provided to Tenant solely for
use by Tenant’s own personnel and such passes may not be
transferred, assigned, subleased or otherwise alienated by Tenant
(except in connection with a Transfer) without Landlord’s
prior approval. Tenant may validate visitor parking by such method
or methods as the Landlord may establish, at the validation rate
from time to time generally applicable to visitor parking and which
rate shall be consistent with the visitor parking rate of other
first class office building in the Westwood
Marketplace.






 



[SIGNATURES APPEAR ON FOLLOWING PAGE]

 


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


 


	

LANDLORD:


 


10900
WILSHIRE, L.L.C.,


 a
Delaware limited liability company


 


By:
/s/ Joseph G.
Doran     



 


Name:
Joseph G.
Doran     



 


Title:
Vice President and
Treasurer    


	

TENANT:


 


CHROMADEX,
INC.,


a
California corporation


 


By:
/s/ Frank
Jaksch  



 


Name:
Frank
Jaksch  



 


Title:
CEO  



 


By:
/s/ Thomas C.
Varvaro  



 


Name:
Thomas C.
Varvaro  



 


Title:
CFO   







 


 




 

-43-








 










 



EXHIBIT A

 



Floor Plan of Premises

 


The
floor plan which follows is intended solely to identify the general
location of the Premises, and should not be used for any other
purpose. All areas, dimensions and locations are approximate, and
any physical conditions indicated may not exist as
shown.

 



 


 




 

A-1








 







EXHIBIT B

 



Definitions

 


Base Rate: The annual rate of interest
publicly announced from time to time by Citibank, N.A., or its
successor, in New York, New York as its “base
rate” (or such other term as may be used by
Citibank, N.A., from time to time, for the rate presently
referred to as its “base rate”).

 


Building Standard Installations: The
type of core and shell improvements typically provided by Landlord
in connection with the initial occupancy of tenants in the
Building.

 


Building Systems: The mechanical,
electrical, plumbing, sanitary, sprinkler, heating, ventilation and
air conditioning, security, life-safety, elevator and other service
systems or facilities of the Building up to the point of connection
of localized distribution to the Premises (excluding, however,
supplemental HVAC systems of tenants, sprinklers and the
horizontal distribution systems within and servicing the Premises
and by which mechanical, electrical, plumbing, sanitary, heating,
ventilating and air conditioning, security, life-safety and other
service systems are distributed from the base Building risers,
feeders, panelboards, etc. for provision of such services to the
Premises).

 


Business Days: All days, excluding
Saturdays, Sundays and Observed Holidays.

 


Common Areas: The lobby, plaza and
sidewalk areas, garage and other similar areas of general access
and the areas on individual multi-tenant floors in the Building
devoted to corridors, elevator lobbies, restrooms, and other
similar facilities serving the Premises.

 


Comparable Buildings: Other office
buildings located in the Westwood area of Los Angeles, California,
which buildings are Class "A" buildings with a similar quality of
institutional ownership, tenant mix and quality of construction,
and are of similar size and offer similar services, as the
Building.

 

 



 

B-1







 





 

 


Excluded Expenses: (a) Taxes;
(b) franchise or income taxes imposed upon Landlord;
(c) mortgage amortization and interest, except to the extent
the same may be included in Operating Expenses pursuant to the
terms of Section 7.1(e), above; (d) leasing commissions;
(e) the cost of tenant installations and decorations incurred
in connection with preparing space for any Building tenant,
including work letters and concessions; (f) fixed rent under
Superior Leases, if any; (g) management fees to the extent in
excess of the greater of (A) three percent (3%) of the
gross receipts collected for the Real Property, and (B) fees
charged for the management of a majority of the other Comparable
Buildings; (h) wages, salaries and benefits paid to any
persons above the grade of property manager or chief engineer (or
employees with equivalent responsibilities regardless of job title)
and their immediate supervisor; (i) legal and accounting fees
relating to (A) disputes with tenants, prospective tenants or
other occupants of the Building, (B) disputes with purchasers,
prospective purchasers, mortgagees or prospective mortgagees of the
Building or the Real Property or any part of either, or
(C) negotiations of leases, contracts of sale or mortgages;
(j) costs of services provided to other tenants of the
Building on a “rent-inclusion” basis which are not
provided to Tenant on such basis; (k) costs that are
reimbursed out of insurance, warranty or condemnation proceeds, or
which are reimbursed by Tenant or other tenants other than pursuant
to an expense escalation clause; (l) costs in the nature of
penalties or fines; (m) except with respect to management fees
(which are subject to (g) above), costs for services, supplies or
repairs paid to any related entity in excess of costs that would be
payable in an “arm’s length” or unrelated
situation for comparable services, supplies or repairs;
(n) allowances, concessions or other costs and expenses of
improving or decorating any demised or demisable space in the
Building; (o) advertising and promotional expenses in
connection with leasing of the Building; (p) the costs of
installing, operating and maintaining a specialty improvement,
including a cafeteria, lodging or private dining facility, or an
athletic, luncheon or recreational club unless Tenant is permitted
to make use of such facility without additional cost (other than
payments for key deposits, use of towels, or other incidental
items) or on a subsidized basis consistent with other users;
(q) any costs or expenses (including fines, interest,
penalties and legal fees) arising out of Landlord’s failure
to timely pay Operating Expenses or Taxes; (r) costs incurred
to comply with applicable Requirements relating to any Hazardous
Materials which were in existence in the Building or on the Real
Property prior to the Commencement Date, and were of such a nature
that a federal, State or municipal governmental authority, if it
had then had knowledge of the presence of such Hazardous Materials,
in the state, and under the conditions that it then existed in the
Building or on the Real Property, would have then required the
removal of such Hazardous Materials or other remedial or
containment action with respect thereto (the “Pre-Existing Hazardous
Materials”); (s) costs incurred to remove,
remedy, contain, or treat Hazardous Materials, which Hazardous
Materials are brought into the Building or onto the Real Property
after the date of this Lease by Landlord, any other tenant of the
Building or any third party and is of such a nature, at that time,
that a federal, State or municipal governmental authority, if it
had then had knowledge of the presence of such Hazardous Materials,
in the state, and under the conditions, that it then existed in the
Building or on the Real Property, would have then required the
removal of such Hazardous Materials or other remedial or
containment action with respect thereto; (t) Capital Costs other
than those expressly included in Operating Expenses pursuant to
Section 7.1; and (u) costs of replacements, alterations
or improvements necessary to make the Building comply with
applicable Requirements in effect and applicable to the Building
prior to the Commencement Date, except to the extent the need for
such replacements, alterations or improvements is caused by Tenant
Parties (in which case Tenant shall nonetheless be responsible for
such costs in accordance with Section 8.1(a) of this Lease),
provided, however, that the provisions of this sub-item (u) shall
not preclude the inclusion of costs of compliance with applicable
Requirements enacted prior to the date of this Lease if such
compliance is required for the first time by reason of any
amendment, modification or reinterpretation of an applicable
Requirement which is imposed after the date of this
Lease.

 





Governmental Authority: The United
States of America, the City of Los Angeles, County of Los Angeles,
or State of California, or any political subdivision, agency,
department, commission, board, bureau or instrumentality of any of
the foregoing, now existing or hereafter created, having
jurisdiction over the Real Property.

 


Hazardous Materials: Any substances,
materials or wastes currently or in the future deemed or defined in
any Requirement as “hazardous substances,” “toxic
substances,” “contaminants,”
“pollutants” or words of similar import.

 


HVAC System: The Building System
designed to provide heating, ventilation and air
conditioning.

 


Indemnitees: Landlord, Landlord’s
Agent, each Mortgagee and Lessor, and each of their respective
direct and indirect partners, officers, shareholders, directors,
members, managers, trustees, beneficiaries, employees, principals,
contractors, servants, agents, and representatives.

 



 

B-2







 





 

 


Lease Year: The first Lease Year shall
commence on the Commencement Date and shall end on the last day of
the calendar month preceding the month in which the first
anniversary of the Commencement Date occurs. Each succeeding Lease
Year shall commence on the day following the end of the preceding
Lease Year and shall extend for 12 consecutive months;
provided, however, that the last Lease Year shall expire on the
Expiration Date.

 


Lessor: A lessor under a Superior
Lease.

 


Losses: Any and all losses, liabilities,
damages, claims, judgments, fines, suits, demands, costs, interest
and expenses of any kind or nature (including reasonable
attorneys’ fees and disbursements) incurred in connection
with any claim, proceeding or judgment and the defense thereof, and
including all costs of repairing any damage to the Premises or the
Real Property or the appurtenances of any of the foregoing to which
a particular indemnity and hold harmless agreement
applies.

 


Mortgage(s): Any mortgage, trust
indenture or other financing document which may now or hereafter
affect the Premises, the Real Property, the Building or any
Superior Lease and the leasehold interest created thereby, and all
renewals, extensions, supplements, amendments, modifications,
consolidations and replacements thereof or thereto, substitutions
therefor, and advances made thereunder.

 


Mortgagee(s): Any mortgagee, trustee or
other holder of a Mortgage.

 


Observed Holidays: New Year's Day,
Presidents Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day, and Christmas Day.

 


Ordinary Business Hours: 8:00 a.m.
to 6:00 p.m. on Business Days and from 9:00 a.m. to
1:00 p.m. on Saturdays (excluding Observed
Holidays).

 


Prohibited Use: Any use or occupancy of
the Premises that in Landlord’s reasonable judgment would:
(a) cause damage to the Real Property or any equipment,
facilities or other systems therein; (b) impair the appearance
of the Real Property; (c) interfere with the efficient and
economical maintenance, operation and repair of the Premises or the
Real Property or the equipment, facilities or systems thereof;
(d) adversely affect any service provided to, and/or the use
and occupancy by, any Building tenant or occupants, and/or injure
or annoy any Building tenant or occupants by reason of noise,
odors, or vibrations; (e) violate the certificate of occupancy
issued for the Premises or the Building; (f) materially and
adversely affect the first-class image of the Building or
(g) result in protests or civil disorder or commotions at, or
other disruptions of the normal business activities in, the Real
Property. Prohibited Use also includes the use of any part
of the Premises for: (i) a restaurant or bar; (ii) the
preparation, consumption, storage, manufacture or sale of food or
beverages (except in connection with vending machines (provided
that each machine, where necessary, shall have a waterproof pan
thereunder and be connected to a drain) and/or warming kitchens
installed for the use of Tenant’s employees only), liquor,
tobacco or drugs; (iii) the business of photocopying,
multilith or offset printing (except photocopying in connection
with Tenant’s own business); (iv) a school or classroom;
(v) lodging or sleeping; (vi) the operation of retail
facilities (meaning a business whose primary patronage arises from
the generalized solicitation of the general public to visit
Tenant’s offices in person without a prior appointment) of a
savings and loan association or retail facilities of any financial,
lending, securities brokerage or investment activity; (vii) a
payroll office; (viii) a barber, beauty or manicure shop;
(ix) an employment agency or similar enterprise;
(x) offices of any Governmental Authority, any foreign
government, the United Nations, or any agency or department of the
foregoing; (xi) the manufacture, retail sale, storage of
merchandise or auction of merchandise, goods or property of any
kind to the general public which could reasonably be expected to
create a volume of pedestrian traffic substantially in excess of
that normally encountered in the Premises; (xii) the rendering
of medical, dental or other therapeutic or diagnostic services; or
(xiii) any illegal purposes or any activity constituting a
nuisance.

 


Requirements: All present and future
laws, rules, orders, ordinances, regulations, statutes,
requirements, codes and executive orders, extraordinary and
ordinary of (i) all Governmental Authorities, including,
without limitation, (A) the Americans With Disabilities Act,
42 U.S.C. §12101 (et seq.), and any law of like import,
and all rules, regulations and government orders with respect
thereto, and (B) any of the foregoing relating to Hazardous
Materials, environmental matters, public health and safety matters
and landmarks protection, (ii) any applicable fire rating
bureau or other body exercising similar functions, affecting the
Real Property or the maintenance, use or occupation thereof, or any
street, avenue or sidewalk comprising a part of or in front thereof
or any vault in or under the same, (iii) all requirements of
all insurance bodies affecting the Premises, (iv) utility
service providers, and (v) Mortgagees or Lessors. "Requirements"
shall also include the terms and conditions of any certificate of
occupancy issued for the Premises or the Building, and any other
covenants, conditions or restrictions affecting the Building and/or
the Real Property from time to time.

 

 



 

B-3







 





 

 


Rules and Regulations: The rules and
regulations annexed to and made a part of this Lease as
Exhibit F, as they may
be modified from time to time by Landlord.

 


Specialty Alterations: Alterations which
are not standard office installations such as kitchens, executive
bathrooms, raised computer floors, computer room installations,
supplemental HVAC equipment, safe deposit boxes, vaults, libraries
or file rooms requiring reinforcement of floors, internal
staircases, slab penetrations, conveyors, dumbwaiters, and other
Alterations of a similar character. All Specialty Alterations are
Above-Building Standard Installations.

 


Substantial Completion: As to any
construction performed by any party in the Premises, other than
with respect to the Tenant Improvements which shall be governed by
the terms of the Work Letter, “Substantial Completion”
or “Substantially Completed” means that such work has
been completed, as reasonably determined by Landlord’s
architect, in accordance with (a) the provisions of this Lease
applicable thereto, (b) the plans and specifications for such
work, and (c) all applicable Requirements, except for minor
details of construction, decoration and mechanical adjustments, if
any, the non-completion of which does not materially interfere with
Tenant’s use of the Premises or which in accordance with good
construction practices should be completed after the completion of
other work in the Premises or Building.

 


Superior Lease(s): Any ground or
underlying lease of the Real Property or any part thereof
heretofore or hereafter made by Landlord and all renewals,
extensions, supplements, amendments, modifications, consolidations,
and replacements thereof.

 


Tax Code: The Internal Revenue Code of
1986, as amended, and the regulations promulgated thereunder, as
amended.

 


Tenant Delay: Any action or inaction by
Tenant, which actually delays Landlord in fulfilling any of
Landlord's obligations under this Lease.

 


Tenant-Insured Improvements: All Tenant
Improvements, Alterations and any other alterations, modifications
or tenant improvements in the Premises, regardless of whether such
Tenant Improvements, Alterations, or other alterations,
modifications or tenant improvements are installed by Landlord or
Tenant.

 


Tenant Party: Tenant and any subtenants
or occupants of the Premises and their respective agents,
contractors, subcontractors, employees, invitees or
licensees.

 


Tenant’s Property: Tenant’s
movable fixtures and movable partitions, telephone and other
equipment, computer systems, telecommunications, data and other
cabling, trade fixtures, furniture, furnishings, and other items of
personal property which are removable without material damage to
the Building.

 


Unavoidable Delays: Landlord’s or
Tenant's inability to fulfill or delay in fulfilling any of its
obligations under this Lease expressly or impliedly to be performed
by Landlord or Tenant or either party’s inability to make or
delay in making any repairs, additions, alterations, improvements
or decorations or either party’s inability to supply or delay
in supplying any equipment or fixtures, if such party’s
inability or delay is due to or arises by reason of strikes, labor
troubles or by accident, or by any cause whatsoever beyond
Landlord’s or Tenant's reasonable control, including
governmental preemption in connection with a national emergency,
Requirements or shortages, or unavailability of labor, fuel, steam,
water, electricity or materials, or delays caused by Tenant or
Landlord, as applicable, or other tenants, mechanical breakdown,
acts of God, acts of war, enemy action, terrorism, bio-terrorism,
civil commotion, fire or other casualty; provided, however, an
Unavoidable Delay shall in no event excuse or delay Tenant’s
obligations to pay Rent or other charges to be paid by Tenant or
Landlord under the Lease or Tenant’s obligations under
Article 3 of the Lease.




 

B-4








 







EXHIBIT C

 



Work Letter

 


1.           Tenant
Improvements. Except as provided below, Landlord shall not
be obligated to construct or install or pay for any improvements or
facilities of any kind in the Premises, and Tenant shall accept the
Premises in its currently-existing, "as-is" condition.
Notwithstanding the foregoing, subject to the terms of this Work
Letter, Landlord shall, at its sole cost, perform the work
described on the Pricing Plan and the Tenant Improvement Estimate,
attached hereto as Schedule 1
(the work described on the Pricing Plan and the Tenant Improvement
Estimate shall collectively be referred to herein as the
"Tenant Improvements"). The
Tenant Improvements shall be completed by Landlord in accordance
with Building standards, finishes and materials selected by Tenant,
subject to availability, and in accordance with Schedule 1 and otherwise in a good
workman-like manner and in compliance with all Requirements. Tenant
shall have no right to modify or alter the Tenant
Improvements.

 


2.           Warranties
and Guaranties. Landlord shall warrant and guaranty the
Tenant Improvements for a period of twelve (12) months after
Substantial Completion of the Tenant Improvements. Subject to the
foregoing warranty and Landlord’s obligations herein, Tenant
hereby waives all claims against Landlord relating to, or arising
out of the construction or installation of, the Tenant
Improvements.

 


3.           Ready
for Occupancy. The Premises shall be considered
"Ready for Occupancy" upon
the Substantial Completion (defined below) by Landlord of the
Tenant Improvements. For purposes of this Work Letter,
"Substantial Completion" of
the Tenant Improvements shall occur upon the completion of the
Tenant Improvements, with the exception of any punchlist or other
items which do not prevent or materially adversely affect Tenant's
use or occupancy of the Premises. In the event of a Tenant Delay,
the Premises shall be deemed to be Ready for Occupancy as of the
date the same would have occurred but for such act or omission of
Tenant.


 




 

C-1








 










 



SCHEDULE 1

 



PRICING PLAN

 



 


 

 




 

C-2








 






 



TENANT IMPROVEMENT ESTIMATE


 

 


 




 

C-3








 







EXHIBIT D

 


 Design
Standards

 


(a)           HVAC.
The Building HVAC System serving the Premises is designed to
maintain average temperatures within the Premises during Ordinary
Business Hours of (i) not less than 72oF. dry bulb during
the heating season when the outdoor temperature is 43oF. dry
bulb and (ii) not more than 75oF. dry bulb during the
cooling season, when the outdoor temperatures are at 87oF. dry
bulb, with, in the case of clauses (i) and (ii), a population
load per floor of not more than one person per 150 square feet
of rentable area, other than in dining and other special use areas
per floor for all purposes, 0.07 CFM per rentable square foot
of outside air, tenant power and light at 2.75 watts per rentable
square foot and shades or blinds fully drawn. Use of the Premises,
or any part thereof, in a manner exceeding the foregoing design
conditions or arrangement of partitioning which interferes with
normal operation of the air-conditioning service in the Premises
may require changes in the air-conditioning serving the Premises at
Tenant’s expense.

 


(b)           Electrical.
The Building electrical system serving the Premises is designed to
provide electricity as follows:

 


(i)           High
voltage (480/277 Volt) connected power for lighting, as required by
applicable Requirements, and

 


(ii)           5.0 watts
per usable square foot of low voltage (120/208 volt) connected
power for convenience receptacles.


 




 

D-1








 







EXHIBIT E

 



Cleaning Specifications

 



GENERAL CLEANING

 


NIGHTLY

 


General Offices:

 



1. 

All hard surfaced
flooring to be swept using approved dustdown
preparation.





 



2. 

Carpet sweep all
carpets, moving only light furniture (desks, file cabinets, etc.
not to be moved).





 



3. 

Hand dust and wipe
clean all furniture, fixtures and window sills.





 



4. 

Empty all waste
receptacles and remove wastepaper.





 



5. 

Wash clean all
Building water fountains and coolers.





 



6. 

Sweep all private
stairways.





 


Lavatories:

 



1. 

Sweep and wash all
floors, using proper disinfectants.





 



2. 

Wash and polish all
mirrors, shelves, bright work and enameled surfaces.





 



3. 

Wash and disinfect
all basins, bowls and urinals.





 



4. 

Wash all toilet
seats.





 



5. 

Hand dust and clean
all partitions, tile walls, dispensers and receptacles in
lavatories and restrooms.





 



6. 

Empty paper
receptacles, fill receptacles from tenant supply and remove
wastepaper.





 



7. 

Fill toilet tissue
holders from tenant supply.





 



8. 

Empty and clean
sanitary disposal receptacles.





 


WEEKLY

 



1. 

Vacuum all
carpeting and rugs.





 



2. 

Dust all door
louvers and other ventilating louvers within a person’s
normal reach.





 



3. 

Wipe clean all
brass and other bright work.





 


NOT
MORE THAN 3 TIMES PER YEAR

 


High
dust premises complete including the following:

 



1. 

Dust all pictures,
frames, charts, graphs and similar wall hangings not reached in
nightly cleaning.





 



2. 

Dust all vertical
surfaces, such as walls, partitions, doors, door frames and other
surfaces not reached in nightly cleaning.





 



3. 

Dust all venetian
blinds.








 

E-1








 










 



EXHIBIT F

 



Rules and Regulations

 


1.           Nothing
shall be attached to the outside walls of the Building. Other than
Building standard blinds, no curtains, blinds, shades, screens or
other obstructions shall be attached to or hung in or used in
connection with any exterior window or entry door of the Premises,
without the prior consent of Landlord.

 


2.           No
sign, advertisement, notice or other lettering visible from the
exterior of the Premises shall be exhibited, inscribed, painted or
affixed to any part of the Premises without the prior written
consent of Landlord. All lettering on doors shall be inscribed,
painted or affixed in a size, color and style acceptable to
Landlord.

 


3.           The
grills, louvers, skylights, windows and doors that reflect or admit
light and/or air into the Premises or Common Areas shall not be
covered or obstructed by Tenant, nor shall any articles be placed
on the window sills, radiators or convectors.

 


4.           Landlord
shall have the right to prohibit any advertising by any Tenant
which, in Landlord’s opinion, tends to impair the reputation
of the Building, and upon written notice from Landlord, Tenant
shall refrain from or discontinue such advertising.

 


5.           Common
Areas shall not be obstructed or encumbered by any Tenant or used
for any purposes other than ingress of egress to and from the
Premises and for delivery of merchandise and equipment in a prompt
and efficient manner, using elevators and passageways designated
for such delivery by Landlord.

 


6.           Except
in those areas designated by Tenant as “security
areas,” all locks or bolts of any kind shall be operable by
the Building’s Master Key. No locks shall be placed upon any
of the doors or windows by Tenant, nor shall any changes be made in
locks or the mechanism thereof which shall make such locks
inoperable by the Building’s Master Key. Tenant shall, upon
the termination of its Lease, deliver to Landlord all keys of
stores, offices and lavatories, either furnished to or otherwise
procured by Tenant and in the event of the loss of any keys
furnished by Landlord, Tenant shall pay to Landlord the cost
thereof.

 


7.           Tenant
shall keep the entrance door to the Premises closed at all
times.

 


8.           All
movement in or out of any freight, furniture, boxes, crates or any
other large object or matter of any description must take place
during such times and in such elevators as Landlord may prescribe.
Landlord reserves the right to inspect all articles to be brought
into the Building and to exclude from the Building all articles
which violate any of these Rules and Regulations or the Lease.
Landlord may require that any person leaving the public areas of
the Building with any article to submit a pass, signed by an
authorized person, listing each article being removed, but the
establishment and enforcement of such requirement shall not impose
any responsibility on Landlord for the protection of any Tenant
against the removal of property from the Premises.

 


9.           All
hand trucks shall be equipped with rubber tires, side guards and
such other safeguards as Landlord may require.

 


10.           No
Tenant Party shall be permitted to have access to the
Building’s roof, mechanical, electrical or telephone rooms
without permission from Landlord.

 


11.           Tenant
shall not permit or suffer the Premises to be occupied or used in a
manner offensive or objectionable to Landlord or other occupants of
the Building by reason of noise, odors, vibrations or interfere in
any way with other tenants or those having business
therein.

 

 



 

F-1







 





 

 


12.           Tenant
shall not employ any person or persons other than the janitor of
Landlord for the purpose of cleaning the Premises, unless otherwise
agreed to by Landlord. Tenant shall not cause any unnecessary labor
by reason of such Tenant’s carelessness or indifference in
the preservation of good order and cleanliness.

 


13.           Tenant
shall store all its trash and recyclables within its Premises. No
material shall be disposed of which may result in a violation of
any Requirement. All refuse disposal shall be made only though
entryways and elevators provided for such purposes and at such
times as Landlord shall designate. Tenant shall use the
Building’s hauler.

 


14.           Tenant
shall not deface any part of the Building. No boring, cutting or
stringing of wires shall be permitted, except with prior consent of
Landlord, and as Landlord may direct.

 


15.           The
water and wash closets, electrical closets, mechanical rooms, fire
stairs and other plumbing fixtures shall not be used for any
purposes other than those for which they were constructed and no
sweepings, rubbish, rags, acids or other substances shall be
deposited therein. All damages resulting from any misuse of the
fixtures shall be borne by Tenant where a Tenant Party caused the
same.

 


16.           Tenant,
before closing and leaving the Premises at any time, shall see that
all lights, water faucets, etc. are turned off. All entrance doors
in the Premises shall be kept locked by Tenant when the Premises
are not in use.

 


17.           No
firearms, bicycles, in-line roller skates, vehicles or animals of
any kind (except for seeing eye dogs) shall be brought into or kept
by any Tenant in or about the Premises or the
Building.

 


18.           Canvassing
or soliciting in the Building is prohibited.

 


19.           Employees
of Landlord or Landlord’s Agent shall not perform any work or
do anything outside of the regular duties, unless under special
instructions from the office of Landlord or in response to any
emergency condition.

 


20.           Tenant
is responsible for the delivery and pick up of all mail from the
United States Post Office.

 


21.           Landlord
reserves the right to exclude from the Building during other than
Ordinary Business Hours all persons who do not present a valid
Building pass. Tenant shall be responsible for all persons for whom
a pass shall be issued at the request of Tenant and shall be liable
to Landlord for all acts of such persons.

 


22.           Tenant
shall not use the Premises for any purpose that may be dangerous to
persons or property, nor shall Tenant permit in, on or about the
Premises or Building items that may be dangerous to persons or
property, including, without limitation, firearms or other weapons
(whether or not licensed or used by security guards) or any
explosive or combustible articles or materials.

 


23.           No
smoking shall be permitted in, on or about the Premises, the
Building or the Real Property. Tenant shall comply with the State
of California “No-Smoking” law set forth in California
Labor Code Section 6404.5, or any successor statute, and any
local “No-Smoking” ordinance which may be in effect
from time to time and which is not superseded by such State
law.

 


24.           Landlord
shall not be responsible to Tenant or to any other person or entity
for the non-observance or violation of these Rules and Regulations
by any other tenant or other person or entity. Tenant shall be
deemed to have read these Rules and Regulations and to have agreed
to abide by them as a condition to its occupancy of the
Premises.

 


25.           The
review/alteration of Tenant drawings and/or specifications by
Landlord’s Agent and any of its representatives is not
intended to verify Tenant’s engineering or design
requirements and/or solutions. The review/alteration is performed
to determine compatibility with the Building Systems and lease
conditions. Tenant renovations must adhere to the Building’s
applicable Standard Operating Procedures and be compatible with all
Building Systems.


 




 

F-2








 










 



EXHIBIT G

 



Notice of Lease Term Dates

 

To:         
__________________________


__________________________


__________________________


__________________________

 



Re: 

Lease dated
________________________, 20__, between 10900 Wilshire, L.L.C., a
Delaware limited liability company ("Landlord"), and
_____________________, a ________________ ("Tenant") concerning
Suite ____ on the ______ (___) floor of the office building located
at 10900 Wilshire Boulevard, Los Angeles, California.





 


Ladies
and Gentlemen:

 


In
accordance with the Lease (the "Lease"), we wish to advise you
and/or confirm as follows:

 




1.

That the Tenant
Improvements have been Substantially Complete, and that the Term
[shall commence] [commenced] as of ________________ for a term of
_______________ ending on _______________.





 




2.

That in accordance
with the Lease, Rent commenced to accrue on
_______________________.





 




3.

If the Commencement
Date is other than the first day of the month, the first billing
will contain a pro rata adjustment. Each billing thereafter,
with the exception of the final billing, shall be for the full
amount of the monthly installment as provided for in the
Lease.





 




4.

Rent is due and
payable in advance on the first day of each and every month during
the Term. Your rent checks should be made payable to
____________________________________ at
_______________________________________.





 




5.

The exact number of
rentable square feet within the Premises is _______ square
feet.





 




6.

Tenant's
Proportionate Share as adjusted based upon the exact number of
rentable square feet within the Premises is _______%.





 


Should
Landlord not receive a signed response within 10 days from the date
above, the aforementioned dates shall be deemed to be accepted by
Tenant.

 


[SIGNATURES
APPEAR ON THE FOLLOWING PAGE]


 


 




 

G-1








 





 


 

 


"Landlord":

 


10900
WILSHIRE, L.L.C.,

 


a
Delaware limited liability company

 



By: 

___________________________





 


Name:
_____________________

 


Title:
______________________

 


Agreed
to and Accepted as


of
_____________, 20__.

 


"Tenant":

 


__________________________,

 


a
________________________

 



By: 

________________________





 


Name:
___________________

 


Title:
____________________

 


 

 


 




 

G-2