<\/p>\nTENANT’S ADDRESS Dean & DeLuca Brands, Inc
\nFOR NOTICES: 560 Broadway
\n New York, NY 10012<\/p>\n
PROPERTY MANAGER: Pat Roney<\/p>\n
ADDITIONAL PROVISIONS: 35. EXTENSION OPTION<\/p>\n
<\/c><\/s><\/table>\n
EXHIBITS:
\nExhibit A: The Premises
\nExhibit B: Building Rules
\nExhibit C: Additional Provisions<\/p>\n
The Basic Lease Information set forth above is part of the Lease. In
\nthe event of any conflict between any provision in the Basic Lease Information
\nand the Lease, the Lease shall control.<\/p>\n
ii<\/p>\n
THIS LEASE is made as of the Lease Date set forth in the Basic Lease
\nInformation, by and between the Landlord identified in the Basic Lease
\nInformation (“LANDLORD”), and the Tenant identified in the Basic Lease
\nInformation (“TENANT”). Landlord and Tenant hereby agree as follows:<\/p>\n
1. PREMISES. Landlord hereby leases to Tenant, and Tenant hereby leases from
\nLandlord, upon the terms and subject to the conditions of this Lease, the office
\nspace identified in the Basic Lease Information as the Premises (the
\n“PREMISES”), in the Building located at the address specified in the Basic Lease
\nInformation (the “BUILDING”). The approximate configuration and location of the
\nPremises is shown on EXHIBIT A. Landlord and Tenant agree that the rentable area
\nof the Premises for all purposes under this Lease shall be the Rentable Area
\nspecified in the Basic Lease Information. The Building, together with the
\nparking facilities serving the Building (the “PARKING FACILITY”), and the
\nparcel(s) of land on which the Building and the Parking Facility are situated
\nare collectively referred to herein as the Property (the “PROPERTY”).<\/p>\n
2. TERM; POSSESSION. The term of this Lease (the “TERM”) shall commence on the
\nCommencement Date as described below and, unless sooner terminated, shall expire
\non the Expiration Date set forth in the Basic Lease Information (the “EXPIRATION
\nDATE”). The “COMMENCEMENT DATE” shall be the date as specified in the Basic
\nLease Information; provided, however, that Landlord shall not be liable for any
\nclaims, damages or liabilities if the Premises are not ready for occupancy by
\nthe Commencement Date.<\/p>\n
Notwithstanding the foregoing, Lessor or Tenant may terminate this
\nLease for any reason, in their sole discretion, by giving notice sixty (60) days
\nprior to such termination during the original term of this lease, whether or not
\nthe other party is in default under any provision of this Lease.<\/p>\n
3. RENT.<\/p>\n
3.1 BASE RENT. Tenant agrees to pay to Landlord the Base Rent set forth in
\nthe Basic Lease Information, without prior notice or demand, on the first day of
\neach and every calendar month during the Term, except that Base Rent for the
\nfirst full calendar month in which Base Rent is payable shall be paid upon
\nTenant’s execution of this Lease and Base Rent for any partial month at the
\nbeginning of the Term shall be paid on the Commencement Date. Base Rent for any
\npartial month at the beginning or end of the Term shall be prorated based on the
\nactual number of days in the month.<\/p>\n
If the Basic Lease Information provides for any change in Base Rent by
\nreference to years or months (without specifying particular dates), the change
\nwill take effect on the applicable annual or monthly anniversary of the
\nCommencement Date (which won’t necessarily be the first day of a calendar
\nmonth).<\/p>\n
3.2 PAYMENT OF RENT. All amounts payable or reimbursable by Tenant under
\nthis Lease, including late charges and interest (collectively, “RENT”), shall
\nconstitute rent and shall be payable and recoverable as rent in the manner
\nprovided in this Lease. All sums payable to Landlord on demand under the terms
\nof this Lease shall be payable within ten (10) days after notice from<\/p>\n
1<\/p>\n
Landlord of the amounts due. All rent shall be paid without offset, recoupment
\nor deduction in lawful money of the United States of America to Landlord at
\nLandlord’s Address for Payment of Rent as set forth in the Basic Lease
\nInformation, or to such other person or at such other place as Landlord may from
\ntime to time designate.<\/p>\n
4. SECURITY DEPOSIT. Tenant shall not be required to provide Landlord any
\nsecurity deposit for this Lease.<\/p>\n
5. USE AND COMPLIANCE WITH LAWS.<\/p>\n
5.1 USE. The Premises shall be used and occupied for general business office
\npurposes and for no other use or purpose. Tenant shall comply with all present
\nand future Laws relating to Tenant’s use or occupancy of the Premises (and make
\nany repairs, alterations or improvements as required to comply with all such
\nLaws), and shall observe the “Building Rules” (as defined in Section 27 – RULES
\nAND REGULATIONS). Tenant shall not do, bring, keep or sell anything in or about
\nthe Premises that is prohibited by, or that will cause a cancellation of or an
\nincrease in the existing premium for, any insurance policy covering the Property
\nor any part thereof. Tenant shall not permit the Premises to be occupied or used
\nin any manner that will constitute waste or a nuisance, or disturb the quiet
\nenjoyment of or otherwise annoy other tenants in the Building. Without limiting
\nthe foregoing, the Premises shall not be used for educational activities,
\npractice of medicine or any of the healing arts, providing social services, for
\nany governmental use (including embassy or consulate use), or for personnel
\nagency, customer service office, studios for radio, television or other media,
\ntravel agency or reservation center operations or uses. Tenant shall not,
\nwithout the prior consent of Landlord, (i) bring into the Building or the
\nPremises anything that may cause substantial noise, odor or vibration, overload
\nthe floors in the Premises or the Building or any of the heating, ventilating
\nand air-conditioning (“HVAC”), mechanical, elevator, plumbing, electrical, fire
\nprotection, life safety, security or other systems in the Building (“BUILDING
\nSYSTEMS”), or jeopardize the structural integrity of the Building or any part
\nthereof; (ii) connect to the utility systems of the Building any apparatus,
\nmachinery or other equipment other than typical office equipment; or (iii)
\nconnect to any electrical circuit in the Premises any equipment or other load
\nwith aggregate electrical power requirements in excess of 80% of the rated
\ncapacity of the circuit.<\/p>\n
5.2 HAZARDOUS MATERIALS.<\/p>\n
(a) DEFINITIONS.<\/p>\n
(1) “HAZARDOUS MATERIALS” shall mean any substance: (A) that now or
\nin the future is regulated or governed by, requires investigation or remediation
\nunder, or is defined as a hazardous waste, hazardous substance, pollutant or
\ncontaminant under any governmental statute, code, ordinance, regulation, rule or
\norder, and any amendment thereto, including the Comprehensive Environmental
\nResponse Compensation and Liability Act, 42 U.S.C. ss.9601 eT Seq., and the
\nResource Conservation and Recovery Act, 42 U.S.C. ss.6901 ET seq., or (B) that
\nis toxic, explosive, corrosive, flammable, radioactive, carcinogenic, dangerous
\nor otherwise hazardous, including gasoline, diesel fuel, petroleum hydrocarbons,
\npolychlorinated biphenyls (PCBs), asbestos, radon and urea formaldehyde foam
\ninsulation.<\/p>\n
2<\/p>\n
(2) “ENVIRONMENTAL REQUIREMENTS” shall mean all present and future
\nLaws, orders, permits, licenses, approvals, authorizations and other
\nrequirements of any kind applicable to Hazardous Materials.<\/p>\n
(3) “HANDLED BY TENANT” and “HANDLING BY TENANT” shall mean and
\nrefer to any installation, handling, generation, storage, use, disposal,
\ndischarge, release, abatement, removal, transportation, or any other activity of
\nany type by Tenant or its agents, employees, contractors, licensees, assignees,
\nsublessees, transferees or representatives (collectively, “REPRESENTATIVES”) or
\nits guests, customers, invitees, or visitors (collectively, “VISITORS”), at or
\nabout the Premises in connection with or involving Hazardous Materials.<\/p>\n
(4) “ENVIRONMENTAL LOSSES” shall mean all costs and expenses of any
\nkind, damages, including foreseeable and unforeseeable consequential damages,
\nfines and penalties incurred in connection with any violation of and compliance
\nwith Environmental Requirements and all losses of any kind attributable to the
\ndiminution of value, loss of use or adverse effects on marketability or use of
\nany portion of the Premises or Property.<\/p>\n
(b) TENANT’S COVENANTS. No Hazardous Materials shall be Handled
\nby Tenant at or about the Premises or Property without Landlord’s prior written
\nconsent, which consent may be granted, denied, or conditioned upon compliance
\nwith Landlord’s requirements, all in Landlord’s absolute discretion.
\nNotwithstanding the foregoing, normal quantities and use of those Hazardous
\nMaterials customarily used in the conduct of general office activities, such as
\ncopier fluids and cleaning supplies (“PERMITTED HAZARDOUS MATERIALS”), may be
\nused and stored at the Premises without Landlord’s prior written consent,
\nprovided that Tenant’s activities at or about the Premises and Property and the
\nHandling by Tenant of all Hazardous Materials shall comply at all times with all
\nEnvironmental Requirements. At the expiration or termination of the Lease,
\nTenant shall promptly remove from the Premises and Property all Hazardous
\nMaterials Handled by Tenant at the Premises or the Property. Tenant shall keep
\nLandlord fully and promptly informed of all Handling by Tenant of Hazardous
\nMaterials other than Permitted Hazardous Materials. Tenant shall be responsible
\nand liable for the compliance with all of the provisions of this Section by all
\nof Tenant’s Representatives and Visitors, and all of Tenant’s obligations under
\nthis Section (including its indemnification obligations under paragraph (e)
\nbelow) shall survive the expiration or termination of this Lease.<\/p>\n
(c) COMPLIANCE. Tenant shall at Tenant’s expense promptly take
\nall actions required by any governmental agency or entity in connection with or
\nas a result of the Handling by Tenant of Hazardous Materials at or about the
\nPremises or Property, including inspection and testing, performing all cleanup,
\nremoval and remediation work required with respect to those Hazardous Materials,
\ncomplying with all closure requirements and post-closure monitoring, and filing
\nall required reports or plans. All of the foregoing work and all Handling by
\nTenant of all Hazardous Materials shall be performed in a good, safe and
\nworkmanlike manner by consultants qualified and licensed to undertake such work
\nand in a manner that will not interfere with any other tenant’s quiet enjoyment
\nof the Property or Landlord’s use, operation, leasing and sale of the Property.
\nTenant shall deliver to Landlord prior to delivery to any governmental agency,
\nor promptly after receipt from any such agency, copies of all permits,
\nmanifests, closure or remedial<\/p>\n
3<\/p>\n
action plans, notices, and all other documents relating to the Handling by
\nTenant of Hazardous Materials at or about the Premises or Property. If any lien
\nattaches to the Premises or the Property in connection with or as a result of
\nthe Handling by Tenant of Hazardous Materials, and Tenant does not cause the
\nsame to be released, by payment, bonding or otherwise, within ten (10) days
\nafter the attachment thereof, Landlord shall have the right but not the
\nobligation to cause the same to be released and any sums expended by Landlord
\n(plus Landlord’s administrative costs) in connection therewith shall be payable
\nby Tenant on demand.<\/p>\n
(d) LANDLORD’S RIGHTS. Landlord shall have the right, but not
\nthe obligation, to enter the Premises at any reasonable time (i) to confirm
\nTenant’s compliance with the provisions of this Section 5.2, and (ii) to perform
\nTenant’s obligations under this Section if Tenant has failed to do so after
\nreasonable notice to Tenant. Landlord shall also have the right to engage
\nqualified Hazardous Materials consultants to inspect the Premises and review the
\nHandling by Tenant of Hazardous Materials, including review of all permits,
\nreports, plans, and other documents regarding same. Tenant shall pay to Landlord
\non demand the costs of Landlord’s consultants’ fees and all costs incurred by
\nLandlord in performing Tenant’s obligations under this Section. Landlord shall
\nuse reasonable efforts to minimize any interference with Tenant’s business
\ncaused by Landlord’s entry into the Premises, but Landlord shall not be
\nresponsible for any interference caused thereby.<\/p>\n
(e) TENANT’S INDEMNIFICATION. Tenant agrees to indemnify,
\ndefend, protect and hold harmless Landlord and its partners or members and its
\nor their partners, members, directors, officers, shareholders, employees and
\nagents from all Environmental Losses and all other claims, actions, losses,
\ndamages, liabilities, costs and expenses of every kind, including reasonable
\nattorneys’, experts’ and consultants’ fees and costs, incurred at any time and
\narising from or in connection with the Handling by Tenant of Hazardous Materials
\nat or about the Property or Tenant’s failure to comply in full with all
\nEnvironmental Requirements with respect to the Premises.<\/p>\n
6. ALTERATIONS. Subject to the provisions of Section 5 – USE AND COMPLIANCE WITH
\nLAWS, Tenant may install and maintain furnishings, equipment, movable
\npartitions, business equipment and other trade fixtures (“TRADE FIXTURES”) in
\nthe Premises, provided that the Trade Fixtures do not become an integral part of
\nthe Premises or the Building. Tenant shall promptly repair any damage to the
\nPremises or the Building caused by any installation or removal of such Trade
\nFixtures.<\/p>\n
7. MAINTENANCE AND REPAIRS.<\/p>\n
7.1 By taking possession of the Premises Tenant agrees that the Premises are
\nthen in a good and tenantable condition. During the Term, Tenant at Tenant’s
\nexpense but under the direction of Landlord, shall repair and maintain the
\nPremises, including the interior walls, floor coverings, ceiling (ceiling tiles
\nand grid), Tenant Improvements, Alterations, fire extinguishers, outlets and
\nfixtures, and any appliances (including dishwashers, hot water heaters and
\ngarbage disposers) in the Premises, in a first class condition, and keep the
\nPremises in a clean, safe and orderly condition.<\/p>\n
7.2 Landlord shall maintain or cause to be maintained in reasonably good
\norder, condition and repair, the structural portions of the roof, foundations,
\nfloors and exterior walls of the <\/p>\n
4<\/p>\n
Building, the Building Systems, and the public and common areas of the Property,
\nsuch as elevators, stairs, corridors and restrooms; provided, however, that
\nTenant shall pay the cost of repairs for any damage occasioned by Tenant’s use
\nof the Premises or the Property or any act or omission of Tenant or Tenant’s
\nRepresentatives or Visitors, to the extent (if any) not covered by Landlord’s
\nproperty insurance. Landlord shall be under no obligation to inspect the
\nPremises. Tenant shall promptly report in writing to Landlord any defective
\ncondition known to Tenant which Landlord is required to repair. As a material
\npart of the consideration for this Lease, Tenant hereby waives any benefits of
\nany applicable existing or future Law, including the provisions of California
\nCivil Code Sections 1932(1), 1941 and 1942, that allows a tenant to make repairs
\nat its landlord’s expense.<\/p>\n
7.3 Landlord hereby reserves the right, at any time and from time to time,
\nwithout liability to Tenant, and without constituting an eviction, constructive
\nor otherwise, or entitling Tenant to any abatement of rent or to terminate this
\nLease or otherwise releasing Tenant from any of Tenant’s obligations under this
\nLease:<\/p>\n
(a) To make alterations, additions, repairs, improvements to or in or to
\ndecrease the size of area of, all or any part of the Building, the fixtures and
\nequipment therein, and the Building Systems;<\/p>\n
(b) To change the Building’s name or street address;<\/p>\n
(c) To install and maintain any and all signs on the exterior and
\ninterior of the Building;<\/p>\n
(d) To reduce, increase, enclose or otherwise change at any time and
\nfrom time to time the size, number, location, lay-out and nature of the common
\nareas (including the Parking Facility) and other tenancies and premises in the
\nProperty and to create additional rentable areas through use or enclosure of
\ncommon areas; and<\/p>\n
(e) If any governmental authority promulgates or revises any Law or
\nimposes mandatory or voluntary controls or guidelines on Landlord or the
\nProperty relating to the use or conservation of energy or utilities or the
\nreduction of automobile or other emissions or reduction or management of traffic
\nor parking on the Property (collectively “CONTROLS”), to comply with such
\nControls, whether mandatory or voluntary, or make any alterations to the
\nProperty related thereto.<\/p>\n
8. TENANT’S TAXES. “TENANT’S TAXES” shall mean (a) all taxes, assessments,
\nlicense fees and other governmental charges or impositions levied or assessed
\nagainst or with respect to Tenant’s personal property or Trade Fixtures in the
\nPremises, whether any such imposition is levied directly against Tenant or
\nlevied against Landlord or the Property, (b) all rental, excise, sales or
\ntransaction privilege taxes arising out of this Lease (excluding, however, state
\nand federal personal or corporate income taxes measured by the income of
\nLandlord from all sources) imposed by any taxing authority upon Landlord or upon
\nLandlord’s receipt of any rent payable by Tenant pursuant to the terms of this
\nLease (“RENTAL TAX”), and (c) any increase in Taxes attributable to inclusion of
\na value placed on Tenant’s personal property, Trade Fixtures or Alterations.
\nTenant shall pay any Rental Tax to Landlord in addition to and at the same time
\nas Base Rent is payable under this <\/p>\n
5<\/p>\n
Lease, and shall pay all other Tenant’s Taxes before delinquency (and, at
\nLandlord’s request, shall furnish Landlord satisfactory evidence thereof). If
\nLandlord pays Tenant’s Taxes or any portion thereof, Tenant shall reimburse
\nLandlord upon demand for the amount of such payment, together with interest at
\nthe Interest Rate from the date of Landlord’s payment to the date of Tenant’s
\nreimbursement.<\/p>\n
9. UTILITIES AND SERVICES.<\/p>\n
9.1 UTILITIES. Lessor covenants and agrees that, as of the Commencement
\nDate, the Premises shall be serviced with gas, electric, telephone, water,
\nseptic and other utilities. Lessor agrees, at its sole cost and expense, to
\ncause the necessary mains, conduits and other facilities to be provided to make
\nwater, sewer, gas, telephone and electricity available to the Premises from and
\nafter the Commencement Date, including the payment of impact or tap fees and
\nmeter installation charges. After installation, Lessee shall pay all charges for
\nconsumption of utility services furnished to the Premises during the Term.
\nLessor agrees to use reasonable efforts to maintain, and if possible, increase,
\nthe amount of water provided to the Premises.<\/p>\n
9.2 INTERRUPTION OF SERVICES. In the event of an interruption in or
\nfailure or inability to provide any services or utilities to the Premises or
\nBuilding for any reason (a “SERVICE FAILURE”), such Service Failure shall not,
\nregardless of its duration, impose upon Landlord any liability whatsoever,
\nconstitute an eviction of Tenant, constructive or otherwise, entitle Tenant to
\nan abatement of rent or to terminate this Lease or otherwise release Tenant from
\nany of Tenant’s obligations under this Lease. Tenant hereby waives any benefits
\nof any applicable existing or future Law, including the provisions of California
\nCivil Code Section 1932(1), permitting the termination of this Lease due to such
\ninterruption, failure or inability.<\/p>\n
10. EXCULPATION AND INDEMNIFICATION.<\/p>\n
10.1 LANDLORD’S INDEMNIFICATION OF TENANT. Landlord shall indemnify,
\nprotect, defend and hold Tenant harmless from and against any claims, actions,
\nliabilities, damages, costs or expenses, including reasonable attorneys’ fees
\nand costs incurred in defending against the same (“CLAIMS”) asserted by any
\nthird party against Tenant for loss, injury or damage, to the extent such loss,
\ninjury or damage is caused by the willful misconduct or negligent acts or
\nomissions of Landlord or its authorized representatives.<\/p>\n
10.2 TENANT’S INDEMNIFICATION OF LANDLORD. Tenant shall indemnify,
\nprotect, defend and hold Landlord and Landlord’s authorized representatives
\nharmless from and against Claims arising from (a) the acts or omissions of
\nTenant or Tenant’s Representatives or Visitors in or about the Property, or (b)
\nany construction or other work undertaken by Tenant on the Premises (including
\nany design defects), or (c) any breach or default under this Lease by Tenant, or
\n(d) any loss, injury or damage, howsoever and by whomsoever caused, to any
\nperson or property, occurring in or about the Premises during the Term,
\nexcepting only Claims described in this clause (d) to the extent they are caused
\nby the willful misconduct or negligent acts or omissions of Landlord or its
\nauthorized representatives.<\/p>\n
6<\/p>\n
10.3 DAMAGE TO TENANT AND TENANT’S PROPERTY. Landlord shall not be liable
\nto Tenant for any loss, injury or other damage to Tenant or to Tenant’s property
\nin or about the Premises or the Property from any cause (including defects in
\nthe Property or in any equipment in the Property; fire, explosion or other
\ncasualty; bursting, rupture, leakage or overflow of any plumbing or other pipes
\nor lines, sprinklers, tanks, drains, drinking fountains or washstands in, above,
\nor about the Premises or the Property; or acts of other tenants in the
\nProperty). Tenant hereby waives all claims against Landlord for any such loss,
\ninjury or damage and the cost and expense of defending against claims relating
\nthereto, including any loss, injury or damage caused by Landlord’s negligence
\n(active or passive) or willful misconduct. Notwithstanding any other provision
\nof this Lease to the contrary, in no event shall Landlord be liable to Tenant
\nfor any punitive or consequential damages or damages for loss of business by
\nTenant.<\/p>\n
10.4 SURVIVAL. The obligations of the parties under this Section 10 shall
\nsurvive the expiration or termination of this Lease.<\/p>\n
11. INSURANCE.<\/p>\n
11.1 TENANT’S INSURANCE.<\/p>\n
(a) LIABILITY INSURANCE. Tenant shall maintain in full force throughout
\nthe Term, commercial general liability insurance providing coverage on an
\noccurrence form basis with limits of not less than Two Million Dollars
\n($2,000,000.00) each occurrence for bodily injury and property damage combined,
\nTwo Million Dollars ($2,000,000.00) annual general aggregate, and Two Million
\nDollars ($2,000,000.00) products and completed operations annual aggregate.
\nTenant’s liability insurance policy or policies shall: (i) include premises and
\noperations liability coverage, products and completed operations liability
\ncoverage, broad form property damage coverage including completed operations,
\nblanket contractual liability coverage including, to the maximum extent
\npossible, coverage for the indemnification obligations of Tenant under this
\nLease, and personal and advertising injury coverage; (ii) provide that the
\ninsurance company has the duty to defend all insureds under the policy; (iii)
\nprovide that defense costs are paid in addition to and do not deplete any of the
\npolicy limits; (iv) cover liabilities arising out of or incurred in connection
\nwith Tenant’s use or occupancy of the Premises or the Property; (v) extend
\ncoverage to cover liability for the actions of Tenant’s Representatives and
\nVisitors; and (vi) designate separate limits for the Property. Each policy of
\nliability insurance required by this Section shall: (1) contain a cross
\nliability endorsement or separation of insureds clause; (2) provide that any
\nwaiver of subrogation rights or release prior to a loss does not void coverage;
\n(3) provide that it is primary to and not contributing with, any policy of
\ninsurance carried by Landlord covering the same loss; (4) provide that any
\nfailure to comply with the reporting provisions by Tenant shall not affect
\ncoverage provided to Landlord, its partners, property managers and Mortgagees;
\nand (5) name Landlord, its partners, the Property Manager identified in the
\nBasic Lease Information (the “PROPERTY MANAGER”), and such other parties in
\ninterest as Landlord may from time to time reasonably designate to Tenant in
\nwriting, as additional insureds. Such additional insureds shall be provided at
\nleast the same extent of coverage as is provided to Tenant under such policies
\nwith respect to liability arising out of the ownership, maintenance or use of
\nthe Premises. All endorsements effecting such additional insured status shall be
\nat least as broad as additional insured endorsement form number CG 20 11 11 85
\nor CG 20 11 11 01 96 promulgated by the Insurance Services Office.<\/p>\n
7<\/p>\n
(b) PROPERTY INSURANCE. Tenant shall at all times maintain in effect
\nwith respect to any Alterations and Tenant’s Trade Fixtures and personal
\nproperty, commercial property insurance providing coverage, on an “all risk” or
\n“special form” basis, in an amount equal to at least 90% of the full replacement
\ncost of the covered property. Tenant may carry such insurance under a blanket
\npolicy, provided that such policy provides coverage equivalent to a separate
\npolicy. During the Term, the proceeds from any such policies of insurance shall
\nbe used for the repair or replacement of the Alterations, Trade Fixtures and
\npersonal property so insured. Landlord shall be provided coverage under such
\ninsurance to the extent of its insurable interest and, if requested by Landlord,
\nboth Landlord and Tenant shall sign all documents reasonably necessary or proper
\nin connection with the settlement of any claim or loss under such insurance.
\nLandlord will have no obligation to carry insurance on any Alterations or on
\nTenant’s Trade Fixtures or personal property.<\/p>\n
(c) REQUIREMENTS FOR ALL POLICIES. Each policy of insurance required
\nunder this Section 11.1 shall: (i) be in a form, and written by an insurer,
\nreasonably acceptable to Landlord, (ii) be maintained at Tenant’s sole cost and
\nexpense, and (iii) require at least thirty (30) days’ written notice to Landlord
\nprior to any cancellation, nonrenewal or modification of insurance coverage.
\nInsurance companies issuing such policies shall have rating classifications of
\n“A” or better and financial size category ratings of “VII” or better according
\nto the latest edition of the A.M. Best Key Rating Guide. All insurance companies
\nissuing such policies shall be admitted carriers licensed to do business in the
\nstate where the Property is located. Any deductible amount under such insurance
\nshall not exceed $5,000. Tenant shall provide to Landlord, upon request,
\nevidence that the insurance required to be carried by Tenant pursuant to this
\nSection, including any endorsement effecting the additional insured status, is
\nin full force and effect and that premiums therefor have been paid.<\/p>\n
(d) UPDATING COVERAGE. Tenant shall increase the amounts of insurance as
\nrequired by any Mortgagee, and, not more frequently than once every three (3)
\nyears, as recommended by Landlord’s insurance broker, if, in the opinion of
\neither of them, the amount of insurance then required under this Lease is not
\nadequate. Any limits set forth in this Lease on the amount or type of coverage
\nrequired by Tenant’s insurance shall not limit the liability of Tenant under
\nthis Lease.<\/p>\n
(e) CERTIFICATES OF INSURANCE. Prior to occupancy of the Premises by
\nTenant, and not less than thirty (30) days prior to expiration of any policy
\nthereafter, Tenant shall furnish to Landlord a certificate of insurance
\nreflecting that the insurance required by this Section is in force, accompanied
\nby an endorsement showing the required additional insureds satisfactory to
\nLandlord in substance and form. Notwithstanding the requirements of this
\nparagraph, Tenant shall at Landlord’s request provide to Landlord a certified
\ncopy of each insurance policy required to be in force at any time pursuant to
\nthe requirements of this Lease or its Exhibits.<\/p>\n
11.2 LANDLORD’S INSURANCE. During the Term, to the extent such coverages are
\navailable at a commercially reasonable cost, Landlord shall maintain in effect
\ninsurance on the Building with responsible insurers, on an “all risk” or
\n“special form” basis, insuring the Building and the Tenant Improvements in an
\namount equal to at least 90% of the replacement cost thereof, excluding land,<\/p>\n
8<\/p>\n
foundations, footings and underground installations. Landlord may, but shall not
\nbe obligated to, carry insurance against additional perils and\/or in greater
\namounts.<\/p>\n
11.3 MUTUAL WAIVER OF RIGHT OF RECOVERY & WAIVER OF SUBROGATION. Landlord
\nand Tenant each hereby waive any right of recovery against each other and the
\npartners, managers, members, shareholders, officers, directors and authorized
\nrepresentatives of each other for any loss or damage that is covered by any
\npolicy of property insurance maintained by either party (or required by this
\nLease to be maintained) with respect to the Premises or the Property or any
\noperation therein, regardless of cause, including negligence (active or passive)
\nof the party benefiting from the waiver. If any such policy of insurance
\nrelating to this Lease or to the Premises or the Property does not permit the
\nforegoing waiver or if the coverage under any such policy would be invalidated
\nas a result of such waiver, the party maintaining such policy shall obtain from
\nthe insurer under such policy a waiver of all right of recovery by way of
\nsubrogation against either party in connection with any claim, loss or damage
\ncovered by such policy.<\/p>\n
12. DAMAGE OR DESTRUCTION.<\/p>\n
12.1 LANDLORD’S DUTY TO REPAIR.<\/p>\n
(a) If all or a substantial part of the Premises are rendered
\nuntenantable or inaccessible by damage to all or any part of the Property from
\nfire or other casualty then, unless either party is entitled to and elects to
\nterminate this Lease pursuant to Sections 12.2 – LANDLORD’S RIGHT TO TERMINATE
\nand 12.3 – TENANT’S RIGHT TO TERMINATE, Landlord shall, at its expense, use
\nreasonable efforts to repair and restore the Premises and\/or the Property, as
\nthe case may be, to substantially their former condition to the extent permitted
\nby then applicable Laws; provided, however, that in no event shall Landlord have
\nany obligation for repair or restoration beyond the extent of insurance proceeds
\nreceived by Landlord for such repair or restoration, or for any of Tenant’s
\npersonal property, Trade Fixtures or Alterations.<\/p>\n
(b) If Landlord is required or elects to repair damage to the Premises
\nand\/or the Property, this Lease shall continue in effect, but Tenant’s Base Rent
\nand Additional Rent shall be abated with regard to any portion of the Premises
\nthat Tenant is prevented from using by reason of such damage or its repair from
\nthe date of the casualty until substantial completion of Landlord’s repair of
\nthe affected portion of the Premises as required under this Lease. In no event
\nshall Landlord be liable to Tenant by reason of any injury to or interference
\nwith Tenant’s business or property arising from fire or other casualty or by
\nreason of any repairs to any part of the Property necessitated by such casualty.<\/p>\n
12.2 LANDLORD’S RIGHT TO TERMINATE. Landlord may elect to terminate this
\nLease following damage by fire or other casualty under the following
\ncircumstances:<\/p>\n
(a) If, in the reasonable judgment of Landlord, the Premises and the
\nProperty cannot be substantially repaired and restored under applicable Laws
\nwithin one (1) year from the date of the casualty;<\/p>\n
9<\/p>\n
(b) If, in the reasonable judgment of Landlord, adequate proceeds are
\nnot, for any reason, made available to Landlord from Landlord’s insurance
\npolicies (and\/or from Landlord’s funds made available for such purpose, at
\nLandlord’s sole option) to make the required repairs;<\/p>\n
(c) If the Building is damaged or destroyed to the extent that, in the
\nreasonable judgment of Landlord, the cost to repair and restore the Building
\nwould exceed twenty-five percent (25%) of the full replacement cost of the
\nBuilding, whether or not the Premises are at all damaged or destroyed; or<\/p>\n
(d) If the fire or other casualty occurs during the last year of the
\nTerm.<\/p>\n
If any of the circumstances described in subparagraphs (a), (b), (c) or (d) of
\n this Section 12.2 occur or arise, Landlord shall give Tenant notice within
\n one hundred and twenty (120) days after the date of the casualty, specifying
\n whether Landlord elects to terminate this Lease as provided above and, if
\n not, Landlord’s estimate of the time required to complete Landlord’s repair
\n obligations under this Lease.<\/p>\n
12.3 TENANT’S RIGHT TO TERMINATE. If all or a substantial part of the
\nPremises are rendered untenantable or inaccessible by damage to all or any part
\nof the Property from fire or other casualty, and Landlord does not elect to
\nterminate as provided above, then Tenant may elect to terminate this Lease if
\nLandlord’s estimate of the time required to complete Landlord’s repair
\nobligations under this Lease is greater than one (1) year, in which event Tenant
\nmay elect to terminate this Lease by giving Landlord notice of such election to
\nterminate within thirty (30) days after Landlord’s notice to Tenant pursuant to
\nSection 12.2 – LANDLORD’S RIGHT TO TERMINATE.<\/p>\n
12.4 WAIVER. Landlord and Tenant each hereby waive the provisions of
\nCalifornia Civil Code Sections 1932(2), 1933(4) and any other applicable
\nexisting or future Law permitting the termination of a lease agreement in the
\nevent of damage or destruction under any circumstances other than as provided in
\nSections 12.2 – LANDLORD’S RIGHT TO TERMINATE and 12.3 – TENANT’S RIGHT TO
\nTERMINATE.<\/p>\n
13. CONDEMNATION.<\/p>\n
13.1 DEFINITIONS.<\/p>\n
(a) “AWARD” shall mean all compensation, sums, or anything of value
\nawarded, paid or received on a total or partial Condemnation.<\/p>\n
(b) “CONDEMNATION” shall mean (i) a permanent taking (or a temporary
\ntaking for a period extending beyond the end of the Term) pursuant to the
\nexercise of the power of condemnation or eminent domain by any public or
\nquasi-public authority, private corporation or individual having such power
\n(“CONDEMNOR”), whether by legal proceedings or otherwise, or (ii) a voluntary
\nsale or transfer by Landlord to any such authority, either under threat of
\ncondemnation or while legal proceedings for condemnation are pending.<\/p>\n
10<\/p>\n
(c) “DATE OF CONDEMNATION” shall mean the earlier of the date that
\ntitle to the property taken is vested in the Condemnor or the date the Condemnor
\nhas the right to possession of the property being condemned.<\/p>\n
13.2 EFFECT ON LEASE.<\/p>\n
(a) If the Premises are totally taken by Condemnation, this Lease shall
\nterminate as of the Date of Condemnation. If a portion but not all of the
\nPremises is taken by Condemnation, this Lease shall remain in effect; provided,
\nhowever, that if the portion of the Premises remaining after the Condemnation
\nwill be unsuitable for Tenant’s continued use, then upon notice to Landlord
\nwithin thirty (30) days after Landlord notifies Tenant of the Condemnation,
\nTenant may terminate this Lease effective as of the Date of Condemnation.<\/p>\n
(b) If twenty-five percent (25%) or more of the Project or of the
\nparcel(s) of land on which the Building is situated or of the Parking Facility
\nor of the floor area in the Building is taken by Condemnation, or if as a result
\nof any Condemnation the Building is no longer reasonably suitable for use as an
\noffice building, whether or not any portion of the Premises is taken, Landlord
\nmay elect to terminate this Lease, effective as of the Date of Condemnation, by
\nnotice to Tenant within thirty (30) days after the Date of Condemnation.<\/p>\n
(c) If all or a portion of the Premises is temporarily taken by a
\nCondemnor for a period not extending beyond the end of the Term, this Lease
\nshall remain in full force and effect.<\/p>\n
13.3 RESTORATION. If this Lease is not terminated as provided in Section
\n13.2 – EFFECT ON LEASE, Landlord, at its expense, shall diligently proceed to
\nrepair and restore the Premises to substantially its former condition (to the
\nextent permitted by then applicable Laws) and\/or repair and restore the Building
\nto an architecturally complete office building; provided, however, that
\nLandlord’s obligations to so repair and restore shall be limited to the amount
\nof any Award received by Landlord and not required to be paid to any Mortgagee
\n(as defined in Section 20.2 below). In no event shall Landlord have any
\nobligation to repair or replace any improvements in the Premises beyond the
\namount of any Award received by Landlord for such repair or to repair or replace
\nany of Tenant’s personal property, Trade Fixtures, or Alterations.<\/p>\n
13.4 ABATEMENT AND REDUCTION OF RENT. If any portion of the Premises is
\ntaken in a Condemnation or is rendered permanently untenantable by repairs
\nnecessitated by the Condemnation, and this Lease is not terminated, the Base
\nRent and Additional Rent payable under this Lease shall be proportionally
\nreduced as of the Date of Condemnation based upon the percentage of rentable
\nsquare feet in the Premises so taken or rendered permanently untenantable. In
\naddition, if this Lease remains in effect following a Condemnation and Landlord
\nproceeds to repair and restore the Premises, the Base Rent and Additional Rent
\npayable under this Lease shall be abated during the period of such repair or
\nrestoration to the extent such repairs prevent Tenant’s use of the Premises.<\/p>\n
13.5 AWARDS. Any Award made shall be paid to Landlord, and Tenant hereby
\nassigns to Landlord, and waives all interest in or claim to, any such Award,
\nincluding any claim for the value of the unexpired Term; provided, however, that
\nTenant shall be entitled to receive, or to prosecute a <\/p>\n
11<\/p>\n
separate claim for, an Award for a temporary taking of the Premises or a portion
\nthereof by a Condemnor where this Lease is not terminated (to the extent such
\nAward relates to the unexpired Term), or an Award or portion thereof separately
\ndesignated for relocation expenses or the interruption of or damage to Tenant’s
\nbusiness or as compensation for Tenant’s personal property, Trade Fixtures or
\nAlterations.<\/p>\n
13.6 WAIVER. Landlord and Tenant each hereby waive the provisions of
\nCalifornia Code of Civil Procedure Section 1265.130 and any other applicable
\nexisting or future Law allowing either party to petition for a termination of
\nthis Lease upon a partial taking of the Premises and\/or the Property.<\/p>\n
14. ASSIGNMENT AND SUBLETTING.<\/p>\n
14.1 LANDLORD’S CONSENT REQUIRED. Tenant shall not assign this Lease or any
\ninterest therein, or sublet or license or permit the use or occupancy of the
\nPremises or any part thereof by or for the benefit of anyone other than Tenant,
\nor in any other manner transfer all or any part of Tenant’s interest under this
\nLease (each and all a “TRANSFER”), without the prior written consent of
\nLandlord, which consent (subject to the other provisions of this Section 14)
\nshall not be unreasonably withheld. If Tenant is a business entity, any direct
\nor indirect transfer of fifty percent (50%) or more of the ownership interest of
\nthe entity (whether in a single transaction or in the aggregate through more
\nthan one transaction) shall be deemed a Transfer. Notwithstanding any provision
\nin this Lease to the contrary, Tenant shall not mortgage, pledge, hypothecate or
\notherwise encumber this Lease or all or any part of Tenant’s interest under this
\nLease.<\/p>\n
14.2 REASONABLE CONSENT.<\/p>\n
(a) Prior to any proposed Transfer, Tenant shall submit in writing to
\nLandlord (i) the name and legal composition of the proposed assignee, subtenant,
\nuser or other transferee (each a “PROPOSED TRANSFEREE”); (ii) the nature of the
\nbusiness proposed to be carried on in the Premises; (iii) a current balance
\nsheet, income statements for the last two years and such other reasonable
\nfinancial and other information concerning the Proposed Transferee as Landlord
\nmay request; and (iv) a copy of the proposed assignment, sublease or other
\nagreement governing the proposed Transfer. Within fifteen (15) Business Days
\nafter Landlord receives all such information it shall notify Tenant whether it
\napproves or disapproves such Transfer or if it elects to proceed under Section
\n14.7 – LANDLORD’S RIGHT TO SPACE.<\/p>\n
(b) Tenant acknowledges and agrees that, among other circumstances for
\nwhich Landlord could reasonably withhold consent to a proposed Transfer, it
\nshall be reasonable for Landlord to withhold consent where (i) the Proposed
\nTransferee does not intend itself to occupy the entire portion of the Premises
\nassigned or sublet, (ii) Landlord reasonably disapproves of the Proposed
\nTransferee’s business operating ability or history, reputation or
\ncreditworthiness or the character of the business to be conducted by the
\nProposed Transferee at the Premises, (iii) the Proposed Transferee is a
\ngovernmental agency or unit or an existing tenant in the Project, (iv) the
\nproposed Transfer would violate any “exclusive” rights of any tenants in the
\nProject, (v) Landlord or Landlord’s agent has shown space in the Building to the
\nProposed Transferee or responded to any inquiries from the Proposed Transferee
\nor the Proposed Transferee’s agent concerning <\/p>\n
12<\/p>\n
availability of space in the Building, at any time within the preceding nine
\nmonths, or (vi) Landlord otherwise determines that the proposed Transfer would
\nhave the effect of decreasing the value of the Building or increasing the
\nexpenses associated with operating, maintaining and repairing the Property. In
\nno event may Tenant publicly offer or advertise all or any portion of the
\nPremises for assignment or sublease at a rental less than that then sought by
\nLandlord for a direct lease (non-sublease) of comparable space in the Project.<\/p>\n
14.3 EXCESS CONSIDERATION. If Landlord consents to the Transfer,
\nTenant shall pay to Landlord as additional rent, within ten (10) days after
\nreceipt by Tenant, any consideration paid by any transferee (the “TRANSFEREE”)
\nfor the Transfer, including, in the case of a sublease, the excess of the rent
\nand other consideration payable by the subtenant over the amount of Base Rent
\nand Additional Rent payable hereunder applicable to the subleased space.<\/p>\n
14.4 NO RELEASE OF TENANT. No consent by Landlord to any Transfer
\nshall relieve Tenant of any obligation to be performed by Tenant under this
\nLease, whether occurring before or after such consent, assignment, subletting or
\nother Transfer. Each Transferee shall be jointly and severally liable with
\nTenant (and Tenant shall be jointly and severally liable with each Transferee)
\nfor the payment of rent (or, in the case of a sublease, rent in the amount set
\nforth in the sublease) and for the performance of all other terms and provisions
\nof this Lease. The consent by Landlord to any Transfer shall not relieve Tenant
\nor any such Transferee from the obligation to obtain Landlord’s express prior
\nwritten consent to any subsequent Transfer by Tenant or any Transferee. The
\nacceptance of rent by Landlord from any other person (whether or not such person
\nis an occupant of the Premises) shall not be deemed to be a waiver by Landlord
\nof any provision of this Lease or to be a consent to any Transfer.<\/p>\n
14.5 EXPENSES AND ATTORNEYS’ FEES. Tenant shall pay to Landlord on
\ndemand all costs and expenses (including reasonable attorneys’ fees) incurred by
\nLandlord in connection with reviewing or consenting to any proposed Transfer
\n(including any request for consent to, or any waiver of Landlord’s rights in
\nconnection with, any security interest in any of Tenant’s property at the
\nPremises).<\/p>\n
14.6 EFFECTIVENESS OF TRANSFER. Prior to the date on which any
\npermitted Transfer (whether or not requiring Landlord’s consent) becomes
\neffective, Tenant shall deliver to Landlord a counterpart of the fully executed
\nTransfer document and Landlord’s standard form of Consent to Assignment or
\nConsent to Sublease executed by Tenant and the Transferee in which each of
\nTenant and the Transferee confirms its obligations pursuant to this Lease.
\nFailure or refusal of a Transferee to execute any such instrument shall not
\nrelease or discharge the Transferee from liability as provided herein. The
\nvoluntary, involuntary or other surrender of this Lease by Tenant, or a mutual
\ncancellation by Landlord and Tenant, shall not work a merger, and any such
\nsurrender or cancellation shall, at the option of Landlord, either terminate all
\nor any existing subleases or operate as an assignment to Landlord of any or all
\nof such subleases.<\/p>\n
14.7 LANDLORD’S RIGHT TO SPACE. Notwithstanding any of the above
\nprovisions of this Section to the contrary, if Tenant notifies Landlord that it
\ndesires to enter into a Transfer, Landlord, in lieu of consenting to such
\nTransfer, may elect (x) in the case of an assignment or a sublease of the entire
\nPremises, to terminate this Lease, or (y) in the case of a sublease of less than
\nthe entire <\/p>\n
13<\/p>\n
Premises, to terminate this Lease as it relates to the space proposed to be
\nsubleased by Tenant. In such event, this Lease will terminate (or the space
\nproposed to be subleased will be removed from the Premises subject to this Lease
\nand the Base Rent and Tenant’s Share under this Lease shall be proportionately
\nreduced) on the date the Transfer was proposed to be effective, and Landlord may
\nlease such space to any party, including the prospective Transferee identified
\nby Tenant.<\/p>\n
14.8 ASSIGNMENT OF SUBLEASE RENTS. Tenant hereby absolutely and
\nirrevocably assigns to Landlord any and all rights to receive rent and other
\nconsideration from any sublease and agrees that Landlord, as assignee or as
\nattorney-in-fact for Tenant for purposes hereof, or a receiver for Tenant
\nappointed on Landlord’s application may (but shall not be obligated to) collect
\nsuch rents and other consideration and apply the same toward Tenant’s
\nobligations to Landlord under this Lease; provided, however, that Landlord
\ngrants to Tenant at all times prior to occurrence of any breach or default by
\nTenant a revocable license to collect such rents (which license shall
\nautomatically and without notice be and be deemed to have been revoked and
\nterminated immediately upon any Event of Default).<\/p>\n
15. DEFAULT AND REMEDIES.<\/p>\n
15.1 EVENTS OF DEFAULT. The occurrence of any of the following shall
\nconstitute an “EVENT OF DEFAULT” by Tenant:<\/p>\n
(a) Tenant fails to make any payment of rent when due, or any amount
\nrequired to replenish the security deposit as provided in Section 4 above, if
\npayment in full is not received by Landlord within three (3) days after written
\nnotice that it is due.<\/p>\n
(b) Tenant abandons the Premises.<\/p>\n
(c) Tenant fails timely to deliver any subordination document, estoppel
\ncertificate or financial statement requested by Landlord within the applicable
\ntime period specified in Sections 20 ENCUMBRANCES – and 21 – ESTOPPEL
\nCERTIFICATES AND FINANCIAL STATEMENTS – below.<\/p>\n
(d) Tenant violates the restrictions on Transfer set forth in Section 14
\n– ASSIGNMENT AND SUBLETTING.<\/p>\n
(e) Tenant ceases doing business as a going concern; makes an assignment
\nfor the benefit of creditors; is adjudicated an insolvent, files a petition (or
\nfiles an answer admitting the material allegations of a petition) seeking relief
\nunder any state or federal bankruptcy or other statute, law or regulation
\naffecting creditors’ rights; all or substantially all of Tenant’s assets are
\nsubject to judicial seizure or attachment and are not released within 30 days,
\nor Tenant consents to or acquiesces in the appointment of a trustee, receiver or
\nliquidator for Tenant or for all or any substantial part of Tenant’s assets.<\/p>\n
(f) Tenant fails, within ninety (90) days after the commencement of any
\nproceedings against Tenant seeking relief under any state or federal bankruptcy
\nor other statute, law or regulation affecting creditors’ rights, to have such
\nproceedings dismissed, or Tenant fails, within ninety (90) days after an
\nappointment, without Tenant’s consent or acquiescence, of any trustee, <\/p>\n
14<\/p>\n
receiver or liquidator for Tenant or for all or any substantial part of Tenant’s
\nassets, to have such appointment vacated.<\/p>\n
(g) Tenant fails to perform or comply with any provision of this Lease
\nother than those described in (a) through (f) above, and does not fully cure
\nsuch failure within fifteen (15) days after notice to Tenant or, if such failure
\ncannot be cured within such fifteen (15)-day period, Tenant fails within such
\nfifteen (15)-day period to commence, and thereafter diligently proceed with, all
\nactions necessary to cure such failure as soon as reasonably possible but in all
\nevents within ninety (90) days of such notice; provided, however, that if
\nLandlord in Landlord’s reasonable judgment determines that such failure cannot
\nor will not be cured by Tenant within such ninety (90) days, then such failure
\nshall constitute an Event of Default immediately upon such notice to Tenant.<\/p>\n
15.2 REMEDIES. Upon the occurrence of an Event of Default, Landlord shall
\nhave the following remedies, which shall not be exclusive but shall be
\ncumulative and shall be in addition to any other remedies now or hereafter
\nallowed by law:<\/p>\n
(a) Landlord may terminate Tenant’s right to possession of the Premises
\nat any time by written notice to Tenant. Tenant expressly acknowledges that in
\nthe absence of such written notice from Landlord, no other act of Landlord,
\nincluding re-entry into the Premises, efforts to relet the Premises, reletting
\nof the Premises for Tenant’s account, storage of Tenant’s personal property and
\nTrade Fixtures, acceptance of keys to the Premises from Tenant or exercise of
\nany other rights and remedies under this Section, shall constitute an acceptance
\nof Tenant’s surrender of the Premises or constitute a termination of this Lease
\nor of Tenant’s right to possession of the Premises. Upon such termination in
\nwriting of Tenant’s right to possession of the Premises, as herein provided,
\nthis Lease shall terminate and Landlord shall be entitled to recover damages
\nfrom Tenant as provided in California Civil Code Section 1951.2 and any other
\napplicable existing or future Law providing for recovery of damages for such
\nbreach, including the worth at the time of award of the amount by which the rent
\nwhich would be payable by Tenant hereunder for the remainder of the Term after
\nthe date of the award of damages, including Additional Rent as reasonably
\nestimated by Landlord, exceeds the amount of such rental loss as Tenant proves
\ncould have been reasonably avoided, discounted at the discount rate published by
\nthe Federal Reserve Bank of San Francisco for member banks at the time of the
\naward plus one percent (1%).<\/p>\n
(b) Landlord shall have the remedy described in California Civil Code
\nSection 1951.4 (Landlord may continue this Lease in effect after Tenant’s breach
\nand abandonment and recover rent as it becomes due, if Tenant has the right to
\nsublet or assign, subject only to reasonable limitations).<\/p>\n
(c) Landlord may cure the Event of Default at Tenant’s expense. If
\nLandlord pays any sum or incurs any expense in curing the Event of Default,
\nTenant shall reimburse Landlord upon demand for the amount of such payment or
\nexpense with interest at the Interest Rate from the date the sum is paid or the
\nexpense is incurred until Landlord is reimbursed by Tenant.<\/p>\n
15<\/p>\n
(d) Landlord may remove all Tenant’s property from the Premises, and
\nsuch property may be stored by Landlord in a public warehouse or elsewhere at
\nthe sole cost and for the account of Tenant. If Landlord does not elect to store
\nany or all of Tenant’s property left in the Premises, Landlord may consider such
\nproperty to be abandoned by Tenant, and Landlord may thereupon dispose of such
\nproperty in any manner deemed appropriate by Landlord. Any proceeds realized by
\nLandlord on the disposal of any such property shall be applied first to offset
\nall expenses of storage and sale, then credited against Tenant’s outstanding
\nobligations to Landlord under this Lease, and any balance remaining after
\nsatisfaction of all obligations of Tenant under this Lease shall be delivered to
\nTenant.<\/p>\n
16. LATE CHARGE AND INTEREST.<\/p>\n
16.1 LATE CHARGE. If any payment of rent is not received by Landlord when
\ndue, Tenant shall pay to Landlord on demand as a late charge an additional
\namount equal to five percent (5%) of the overdue payment. A late charge shall
\nnot be imposed more than once on any particular installment not paid when due,
\nbut imposition of a late charge on any payment not made when due does not
\neliminate or supersede late charges imposed on other (prior) payments not made
\nwhen due or preclude imposition of a late charge on other installments or
\npayments not made when due.<\/p>\n
16.2 INTEREST. In addition to the late charges referred to above, which are
\nintended to defray Landlord’s costs resulting from late payments, any payment
\nfrom Tenant to Landlord not paid when due shall at Landlord’s option bear
\ninterest from the date due until paid to Landlord by Tenant at the rate of
\nfifteen percent (15%) per annum or the maximum lawful rate that Landlord may
\ncharge to Tenant under applicable laws, whichever is less (the “INTEREST RATE”).
\nAcceptance of any late charge and\/or interest shall not constitute a waiver of
\nTenant’s default with respect to the overdue sum or prevent Landlord from
\nexercising any of its other rights and remedies under this Lease.<\/p>\n
17. WAIVER. No provisions of this Lease shall be deemed waived by Landlord
\nunless such waiver is in a writing signed by Landlord. The waiver by Landlord of
\nany breach of any provision of this Lease shall not be deemed a waiver of such
\nprovision or of any subsequent breach of the same or any other provision of this
\nLease. No delay or omission in the exercise of any right or remedy of Landlord
\nupon any default by Tenant shall impair such right or remedy or be construed as
\na waiver. Landlord’s acceptance of any payments of rent due under this Lease
\nshall not be deemed a waiver of any default by Tenant under this Lease
\n(including Tenant’s recurrent failure to timely pay rent) other than Tenant’s
\nnonpayment of the accepted sums, and no endorsement or statement on any check or
\npayment or in any letter or document accompanying any check or payment shall be
\ndeemed an accord and satisfaction. Landlord’s consent to or approval of any act
\nby Tenant requiring Landlord’s consent or approval shall not be deemed to waive
\nor render unnecessary Landlord’s consent to or approval of any subsequent act by
\nTenant.<\/p>\n
18. ENTRY, INSPECTION AND CLOSURE. Upon reasonable oral or written notice to
\nTenant (and without notice in emergencies), Landlord and its authorized
\nrepresentatives may enter the Premises at all reasonable times to: (a) determine
\nwhether the Premises are in good condition, (b) determine whether Tenant is
\ncomplying with its obligations under this Lease, (c) perform any maintenance or
\nrepair of the Premises or the Building that Landlord has the right or obligation
\nto <\/p>\n
16<\/p>\n
perform, (d) install or repair improvements for other tenants where access to
\nthe Premises is required for such installation or repair, (e) serve, post or
\nkeep posted any notices required or allowed under the provisions of this Lease,
\n(f) show the Premises to prospective brokers, agents, buyers, transferees,
\nMortgagees or tenants, or (g) do any other act or thing necessary for the safety
\nor preservation of the Premises or the Building. When reasonably necessary
\nLandlord may temporarily close entrances, doors, corridors, elevators or other
\nfacilities in the Building without liability to Tenant by reason of such
\nclosure. Landlord shall conduct its activities under this Section in a manner
\nthat will minimize inconvenience to Tenant without incurring additional expense
\nto Landlord. In no event shall Tenant be entitled to an abatement of rent on
\naccount of any entry by Landlord, and Landlord shall not be liable in any manner
\nfor any inconvenience, loss of business or other damage to Tenant or other
\npersons arising out of Landlord’s entry on the Premises in accordance with this
\nSection. No action by Landlord pursuant to this paragraph shall constitute an
\neviction of Tenant, constructive or otherwise, entitle Tenant to an abatement of
\nrent or to terminate this Lease or otherwise release Tenant from any of Tenant’s
\nobligations under this Lease.<\/p>\n
19. SURRENDER AND HOLDING OVER.<\/p>\n
19.1 SURRENDER. Upon the expiration or termination of this Lease, Tenant
\nshall surrender the Premises and all Tenant Improvements and Alterations to
\nLandlord broom-clean and in their original condition, except for reasonable wear
\nand tear, damage from casualty or condemnation and any changes resulting from
\napproved Alterations; provided, however, that prior to the expiration or
\ntermination of this Lease Tenant shall remove all telephone and other cabling
\ninstalled in the Building by Tenant and remove from the Premises all Tenant’s
\npersonal property and any Trade Fixtures and all Alterations that Landlord has
\nelected to require Tenant to remove as provided in Section 6.1 – TENANT
\nIMPROVEMENTS & ALTERATIONS, and repair any damage caused by such removal. If
\nsuch removal is not completed before the expiration or termination of the Term,
\nLandlord shall have the right (but no obligation) to remove the same, and Tenant
\nshall pay Landlord on demand for all costs of removal and storage thereof and
\nfor the rental value of the Premises for the period from the end of the Term
\nthrough the end of the time reasonably required for such removal. Landlord shall
\nalso have the right to retain or dispose of all or any portion of such property
\nif Tenant does not pay all such costs and retrieve the property within ten (10)
\ndays after notice from Landlord (in which event title to all such property
\ndescribed in Landlord’s notice shall be transferred to and vest in Landlord).
\nTenant waives all Claims against Landlord for any damage or loss to Tenant
\nresulting from Landlord’s removal, storage, retention, or disposition of any
\nsuch property. Upon expiration or termination of this Lease or of Tenant’s
\npossession, whichever is earliest, Tenant shall surrender all keys to the
\nPremises or any other part of the Building and shall deliver to Landlord all
\nkeys for or make known to Landlord the combination of locks on all safes,
\ncabinets and vaults that may be located in the Premises. Tenant’s obligations
\nunder this Section shall survive the expiration or termination of this Lease.<\/p>\n
19.2 HOLDING OVER. If Tenant (directly or through any Transferee or other
\nsuccessor-in-interest of Tenant) remains in possession of the Premises after the
\nexpiration or termination of this Lease, Tenant’s continued possession shall be
\non the basis of a tenancy at the sufferance of Landlord. No act or omission by
\nLandlord, other than its specific written consent, shall constitute permission
\nfor Tenant to continue in possession of the Premises, and if such consent is
\ngiven or declared to have been given by a court judgment, Landlord may terminate
\nTenant’s holdover <\/p>\n
17<\/p>\n
tenancy at any time upon seven (7) days written notice. In such event, Tenant
\nshall continue to comply with or perform all the terms and obligations of Tenant
\nunder this Lease, except that the monthly Base Rent during Tenant’s holding over
\nshall be twice the Base Rent payable in the last full month prior to the
\ntermination hereof. Acceptance by Landlord of rent after such termination shall
\nnot constitute a renewal or extension of this Lease; and nothing contained in
\nthis provision shall be deemed to waive Landlord’s right of re-entry or any
\nother right hereunder or at law. Tenant shall indemnify, defend and hold
\nLandlord harmless from and against all Claims arising or resulting directly or
\nindirectly from Tenant’s failure to timely surrender the Premises, including (i)
\nany rent payable by or any loss, cost, or damages claimed by any prospective
\ntenant of the Premises, and (ii) Landlord’s damages as a result of such
\nprospective tenant rescinding or refusing to enter into the prospective lease of
\nthe Premises by reason of such failure to timely surrender the Premises.<\/p>\n
20. ENCUMBRANCES.<\/p>\n
20.1 SUBORDINATION. This Lease is expressly made subject and subordinate to
\nany mortgage, deed of trust, ground lease, underlying lease or like encumbrance
\naffecting any part of the Property or any interest of Landlord therein which is
\nnow existing or hereafter executed or recorded (“ENCUMBRANCE”); provided,
\nhowever, that such subordination shall only be effective, as to future
\nEncumbrances, if the holder of the Encumbrance agrees that this Lease shall
\nsurvive the termination of the Encumbrance by lapse of time, foreclosure or
\notherwise so long as Tenant is not in default under this Lease. Provided the
\nconditions of the preceding sentence are satisfied, Tenant shall execute and
\ndeliver to Landlord, within ten (10) days after written request therefor by
\nLandlord and in a form reasonably requested by Landlord, any additional
\ndocuments evidencing the subordination of this Lease with respect to any such
\nEncumbrance and the nondisturbance agreement of the holder of any such
\nEncumbrance. If the interest of Landlord in the Property is transferred pursuant
\nto or in lieu of proceedings for enforcement of any Encumbrance, Tenant shall
\nimmediately and automatically attorn to the new owner, and this Lease shall
\ncontinue in full force and effect as a direct lease between the transferee and
\nTenant on the terms and conditions set forth in this Lease.<\/p>\n
20.2 MORTGAGEE PROTECTION. Tenant agrees to give any holder of any
\nEncumbrance covering any part of the Property (“MORTGAGEE”), by registered mail,
\na copy of any notice of default served upon Landlord, provided that prior to
\nsuch notice Tenant has been notified in writing (by way of notice of assignment
\nof rents and leases, or otherwise) of the address of such Mortgagee. If Landlord
\nshall have failed to cure such default within thirty (30) days from the
\neffective date of such notice of default, then the Mortgagee shall have an
\nadditional thirty (30) days within which to cure such default or if such default
\ncannot be cured within that time, then such additional time as may be necessary
\nto cure such default (including the time necessary to foreclose or otherwise
\nterminate its Encumbrance, if necessary to effect such cure), and this Lease
\nshall not be terminated so long as such remedies are being diligently pursued.<\/p>\n
21. ESTOPPEL CERTIFICATES AND FINANCIAL STATEMENTS.<\/p>\n
21.1 ESTOPPEL CERTIFICATES. Within ten (10) days after written request
\ntherefor, Tenant shall execute and deliver to Landlord, in a form provided by or
\nsatisfactory to Landlord, a <\/p>\n
18<\/p>\n
certificate stating that this Lease is in full force and effect, describing any
\namendments or modifications hereto, acknowledging that this Lease is subordinate
\nor prior, as the case may be, to any Encumbrance and stating any other
\ninformation Landlord may reasonably request, including the Term, the monthly
\nBase Rent, the date to which Rent has been paid, the amount of any security
\ndeposit or prepaid rent, whether either party hereto is in default under the
\nterms of the Lease, and whether Landlord has completed its construction
\nobligations hereunder (if any). Tenant irrevocably constitutes, appoints and
\nauthorizes Landlord as Tenant’s special attorney-in-fact for such purpose to
\ncomplete, execute and deliver such certificate if Tenant fails timely to execute
\nand deliver such certificate as provided above. Any person or entity purchasing,
\nacquiring an interest in or extending financing with respect to the Property
\nshall be entitled to rely upon any such certificate. If Tenant fails to deliver
\nsuch certificate within ten (10) days after Landlord’s second written request
\ntherefor, Tenant shall be liable to Landlord for any damages incurred by
\nLandlord including any profits or other benefits from any financing of the
\nProperty or any interest therein which are lost or made unavailable as a result,
\ndirectly or indirectly, of Tenant’s failure or refusal to timely execute or
\ndeliver such estoppel certificate.<\/p>\n
21.2 FINANCIAL STATEMENTS. Within ten (10) days after written request
\ntherefor, but not more than once a year, Tenant shall deliver to Landlord a copy
\nof the financial statements (including at least a year end balance sheet and a
\nstatement of profit and loss) of Tenant (and of each guarantor of Tenant’s
\nobligations under this Lease) for each of the three most recently completed
\nyears, prepared in accordance with generally accepted accounting principles
\n(and, if such is Tenant’s normal practice, audited by an independent certified
\npublic accountant), all then available subsequent interim statements, and such
\nother financial information as may reasonably be requested by Landlord or
\nrequired by any Mortgagee.<\/p>\n
22. NOTICES. Any notice, demand, request, consent or approval that either party
\ndesires or is required to give to the other party under this Lease shall be in
\nwriting and shall be served personally, delivered by messenger or courier
\nservice, or sent by U.S. certified mail, return receipt requested, postage
\nprepaid, addressed to the other party at the party’s address for notices set
\nforth in the Basic Lease Information. Any notice required pursuant to any Laws
\nmay be incorporated into, given concurrently with or given separately from any
\nnotice required under this Lease. Notices shall be deemed to have been given and
\nbe effective on the earlier of (a) receipt (or refusal of delivery or receipt);
\nor (b) one (1) day after acceptance by the independent service for delivery, if
\nsent by independent messenger or courier service, or three (3) days after
\nmailing if sent by mail in accordance with this Section. Either party may change
\nits address for notices hereunder, effective fifteen (15) days after notice to
\nthe other party complying with this Section. If Tenant sublets the Premises,
\nnotices from Landlord shall be effective on the subtenant when given to Tenant
\npursuant to this Section.<\/p>\n
23. ATTORNEYS’ FEES. In the event of any dispute between Landlord and Tenant in
\nany way related to this Lease, and whether involving contract and\/or tort
\nclaims, the non-prevailing party shall pay to the prevailing party all
\nreasonable attorneys’ fees and costs and expenses of any type, without
\nrestriction by statute, court rule or otherwise, incurred by the prevailing
\nparty in connection with any action or proceeding (including any appeal and the
\nenforcement of any judgment or award), whether or not the dispute is litigated
\nor prosecuted to final judgment (collectively, “FEES”). The “prevailing party”
\nshall be determined based upon an assessment of <\/p>\n
19<\/p>\n
which party’s major arguments or positions taken in the action or proceeding
\ncould fairly be said to have prevailed (whether by compromise, settlement,
\nabandonment by the other party of its claim or defense, final decision, after
\nany appeals, or otherwise) over the other party’s major arguments or positions
\non major disputed issues. Any Fees incurred in enforcing a judgment shall be
\nrecoverable separately from any other amount included in the judgment and shall
\nsurvive and not be merged in the judgment. The Fees shall be deemed an “actual
\npecuniary loss” within the meaning of Bankruptcy Code Section 365(b)(1)(B), and
\nnotwithstanding the foregoing, all Fees incurred by either party in any
\nbankruptcy case filed by or against the other party, from and after the order
\nfor relief until this Lease is rejected or assumed in such bankruptcy case, will
\nbe “obligations of the debtor” as that phrase is used in Bankruptcy Code Section
\n365(d)(3).<\/p>\n
24. QUIET POSSESSION. Subject to Tenant’s full and timely performance of all of
\nTenant’s obligations under this Lease and subject to the terms of this Lease,
\nincluding Section 20 – ENCUMBRANCES, Tenant shall have the quiet possession of
\nthe Premises throughout the Term as against any persons or entities lawfully
\nclaiming by, through or under Landlord.<\/p>\n
25. SECURITY MEASURES. Landlord may, but shall be under no obligation to,
\nimplement security measures for the Property, such as the registration or search
\nof all persons entering or leaving the Building, requiring identification for
\naccess to the Building, evacuation of the Building for cause, suspected cause,
\nor for drill purposes, the issuance of magnetic pass cards or keys for Building
\naccess and other actions that Landlord deems necessary or appropriate to prevent
\nany threat of property loss or damage, bodily injury or business interruption;
\nprovided, however, that such measures shall be implemented in a way as not to
\ninconvenience tenants of the Building unreasonably. Landlord shall at all times
\nhave the right to change, alter or reduce any such security services or
\nmeasures. Tenant shall cooperate and comply with, and cause Tenant’s
\nRepresentatives and Visitors to cooperate and comply with, such security
\nmeasures. Landlord, its agents and employees shall have no liability to Tenant
\nor its Representatives or Visitors for the implementation or exercise of, or the
\nfailure to implement or exercise, any such security measures or for any
\nresulting disturbance of Tenant’s use or enjoyment of the Premises.<\/p>\n
26. FORCE MAJEURE. If Landlord is delayed, interrupted or prevented from
\nperforming any of its obligations under this Lease, including its obligations
\nunder the Construction Rider (if any), and such delay, interruption or
\nprevention is due to fire, act of God, governmental act or failure to act, labor
\ndispute, unavailability of materials or any cause outside the reasonable control
\nof Landlord, then the time for performance of the affected obligations of
\nLandlord shall be extended for a period equivalent to the period of such delay,
\ninterruption or prevention.<\/p>\n
27. RULES AND REGULATIONS. Tenant shall be bound by and shall comply with the
\nrules and regulations attached to and made a part of this Lease as EXHIBIT C to
\nthe extent those rules and regulations are not in conflict with the terms of
\nthis Lease, as well as any reasonable rules and regulations hereafter adopted by
\nLandlord for all tenants of the Building, upon notice to Tenant thereof
\n(collectively, the “BUILDING RULES”). Landlord shall not be responsible to
\nTenant or to any other person for any violation of, or failure to observe, the
\nBuilding Rules by any other tenant or other person.<\/p>\n
20<\/p>\n
28. LANDLORD’S LIABILITY. The term “Landlord,” as used in this Lease, shall mean
\nonly the owner or owners of the Building at the time in question. In the event
\nof any conveyance of title to the Building, then from and after the date of such
\nconveyance, the transferor Landlord shall be relieved of all liability with
\nrespect to Landlord’s obligations to be performed under this Lease after the
\ndate of such conveyance. Notwithstanding any other term or provision of this
\nLease, the liability of Landlord for its obligations under this Lease is limited
\nsolely to Landlord’s interest in the Building as the same may from time to time
\nbe encumbered, and no personal liability shall at any time be asserted or
\nenforceable against any other assets of Landlord or against Landlord’s partners
\nor members or its or their respective partners, shareholders, members,
\ndirectors, officers or managers on account of any of Landlord’s obligations or
\nactions under this Lease.<\/p>\n
29. CONSENTS AND APPROVALS.<\/p>\n
29.1 DETERMINATION IN GOOD FAITH. Wherever the consent, approval, judgment or
\ndetermination of Landlord is required or permitted under this Lease, Landlord
\nmay exercise its good faith business judgment in granting or withholding such
\nconsent or approval or in making such judgment or determination without
\nreference to any extrinsic standard of reasonableness, unless the specific
\nprovision contained in this Lease providing for such consent, approval, judgment
\nor determination specifies that Landlord’s consent or approval is not to be
\nunreasonably withheld, or that such judgment or determination is to be
\nreasonable, or otherwise specifies the standards under which Landlord may
\nwithhold its consent. If it is determined that Landlord failed to give its
\nconsent where it was required to do so under this Lease, Tenant shall be
\nentitled to injunctive relief but shall not to be entitled to monetary damages
\nor to terminate this Lease for such failure.<\/p>\n
29.2 NO LIABILITY IMPOSED ON LANDLORD. The review and\/or approval by Landlord
\nof any item or matter to be reviewed or approved by Landlord under the terms of
\nthis Lease or any Exhibits or Addenda hereto shall not impose upon Landlord any
\nliability for the accuracy or sufficiency of any such item or matter or the
\nquality or suitability of such item for its intended use. Any such review or
\napproval is for the sole purpose of protecting Landlord’s interest in the
\nProperty, and no third parties, including Tenant or the Representatives and
\nVisitors of Tenant or any person or entity claiming by, through or under Tenant,
\nshall have any rights as a consequence thereof.<\/p>\n
30. WAIVER OF RIGHT TO JURY TRIAL. Landlord and Tenant waive their respective
\nrights to trial by jury of any contract or tort claim, counterclaim,
\ncross-complaint, or cause of action in any action, proceeding, or hearing
\nbrought by either party against the other on any matter arising out of or in any
\nway connected with this Lease, the relationship of Landlord and Tenant, or
\nTenant’s use or occupancy of the Premises, including any claim of injury or
\ndamage or the enforcement of any remedy under any current or future law,
\nstatute, regulation, code, or ordinance.<\/p>\n
31. BROKERS. Tenant warrants and represents to Landlord that in the negotiating
\nor making of this Lease neither Tenant nor anyone acting on Tenant’s behalf has
\ndealt with any broker or finder (“BROKER”) who might be entitled to a fee or
\ncommission for this Lease. Tenant shall indemnify and hold Landlord harmless
\nfrom any claim or claims, including costs, expenses and attorney’s fees incurred
\nby Landlord asserted by any other broker or finder for a fee or commission based
\nupon any dealings with or statements made by Tenant or Tenant’s Representatives.<\/p>\n
21<\/p>\n
32. RELOCATION OF PREMISES. For the purpose of maintaining an economical and
\nproper distribution of tenants acceptable to Landlord throughout the Project,
\nLandlord shall have the right from time to time during the Term to relocate the
\nPremises within the Project, provided that (a) the rentable and usable area of
\nthe new Premises is of equivalent size to the existing Premises, subject to a
\nvariation of up to ten percent (10%), (b) Landlord shall pay the cost of
\nproviding tenant improvements in the new Premises, which shall be substantially
\ncomparable in layout to those in the existing Premises, and (c) Landlord shall
\npay reasonable costs (to the extent such costs are submitted in writing to
\nLandlord and approved in writing by Landlord prior to such move) of moving
\nTenant’s Trade Fixtures and personal property to the new Premises. Landlord
\nshall deliver to Tenant written notice of Landlord’s election to relocate the
\nPremises, specifying the new location and the amount of rent payable therefor,
\nat least sixty (60) days prior to the date the relocation is to be effective.<\/p>\n
33. ENTIRE AGREEMENT. This Lease, including the Exhibits and any Addenda
\nattached hereto, and the documents referred to herein, if any, constitute the
\nentire agreement between Landlord and Tenant with respect to the leasing of
\nspace by Tenant in the Building, and supersede all prior or contemporaneous
\nagreements, understandings, proposals and other representations by or between
\nLandlord and Tenant, whether written or oral, all of which are merged herein.
\nNeither Landlord nor Landlord’s agents have made any representations or
\nwarranties with respect to the Premises, the Building, the Project or this Lease
\nexcept as expressly set forth herein, and no rights, easements or licenses shall
\nbe acquired by Tenant by implication or otherwise unless expressly set forth
\nherein. The submission of this Lease for examination does not constitute an
\noption for the Premises and this Lease shall become effective as a binding
\nagreement only upon execution and delivery thereof by Landlord to Tenant.<\/p>\n
34. MISCELLANEOUS. This Lease may not be amended or modified except by a writing
\nsigned by Landlord and Tenant. Subject to Section 14 – ASSIGNMENT AND SUBLETTING
\nand Section 28 – LANDLORD’S LIABILITY, this Lease shall be binding on and shall
\ninure to the benefit of the parties and their respective successors, assigns and
\nlegal representatives. The determination that any provisions hereof may be void,
\ninvalid, illegal or unenforceable shall not impair any other provisions hereof
\nand all such other provisions of this Lease shall remain in full force and
\neffect. The unenforceability, invalidity or illegality of any provision of this
\nLease under particular circumstances shall not render unenforceable, invalid or
\nillegal other provisions of this Lease, or the same provisions under other
\ncircumstances. This Lease shall be construed and interpreted in accordance with
\nthe laws (excluding conflict of laws principles) of the State in which the
\nBuilding is located. The provisions of this Lease shall be construed in
\naccordance with the fair meaning of the language used and shall not be strictly
\nconstrued against either party, even if such party drafted the provision in
\nquestion. When required by the context of this Lease, the singular includes the
\nplural. Wherever the term “including” is used in this Lease, it shall be
\ninterpreted as meaning “including, but not limited to” the matter or matters
\nthereafter enumerated. The captions contained in this Lease are for purposes of
\nconvenience only and are not to be used to interpret or construe this Lease. If
\nmore than one person or entity is identified as Tenant hereunder, the
\nobligations of each and all of them under this Lease shall be joint and several.
\nTime is of the essence with respect to this Lease, except as to the conditions
\nrelating to the delivery of possession of the Premises to Tenant. Neither
\nLandlord nor Tenant shall record this Lease.<\/p>\n
22<\/p>\n
35. AUTHORITY. If Tenant is a corporation, partnership, limited liability
\ncompany or other form of business entity, each of the persons executing this
\nLease on behalf of Tenant warrants and represents that Tenant is a duly
\norganized and validly existing entity, that Tenant has full right and authority
\nto enter into this Lease and that the persons signing on behalf of Tenant are
\nauthorized to do so and have the power to bind Tenant to this Lease. Tenant
\nshall provide Landlord upon request with evidence reasonably satisfactory to
\nLandlord confirming the foregoing representations.<\/p>\n
IN WITNESS WHEREOF, Landlord and Tenant have entered into this Lease as
\nof the date first above written.<\/p>\n
\n\nTENANT: LANDLORD:<\/p>\n
<\/p>\n DEAN & DELUCA BRANDS, INC. R & R LAND, LLC,
\n a California limited liability company
\nBy: \/s\/ Dane J. Neller
\n ————————-
\n Name: Dane Neller
\n Title: CEO By: \/s\/ Patrick Roney
\n —————————-
\n Name: Patrick Roney
\n Title: Manager<\/p>\n
<\/c><\/s><\/caption>\n<\/table>\n
EXHIBIT A<\/p>\n
ATTACHED TO AND FORMING A PART OF
\n LEASE AGREEMENT
\nDATED AS OF
\n JULY 1, 1999
\n BETWEEN
\n R & R LAND, LLC, AS LANDLORD,
\n AND
\n DEAN & DELUCA BRANDS, INC.BRANDS Inc., AS TENANT (“LEASE”)<\/p>\n
THE PREMISES<\/p>\n
INITIALS:<\/p>\n
Landlord ______
\n Tenant ______<\/p>\n
Exhibit A, Page 1<\/p>\n
EXHIBIT B<\/p>\n
ATTACHED TO AND FORMING A PART OF
\n LEASE AGREEMENT<\/p>\n
DATED AS OF
\n JULY 1, 1999
\n BETWEEN
\n R & R LAND, LLC, AS LANDLORD,
\n AND
\n DEAN & DELUCA BRANDS, INC.BRANDS Inc., AS TENANT (“LEASE”)<\/p>\n
BUILDING RULES<\/p>\n
The following Building Rules are additional provisions of the foregoing
\nLease to which they are attached. The capitalized terms used herein have the
\nsame meanings as these terms are given in the Lease.<\/p>\n
1. USE OF COMMON AREAS. Tenant will not obstruct the sidewalks, halls,
\npassages, exits, entrances, elevators or stairways of the Building (“COMMON
\nAREAS”), and Tenant will not use the Common Areas for any purpose other than
\ningress and egress to and from the Premises. The Common Areas, except for the
\nsidewalks, are not open to the general public and Landlord reserves the right to
\ncontrol and prevent access to the Common Areas of any person whose presence, in
\nLandlord’s opinion, would be prejudicial to the safety, reputation and interests
\nof the Building and its tenants.<\/p>\n
2. NO ACCESS TO ROOF. Tenant has no right of access to the roof of the
\nBuilding and will not install, repair or replace any antenna, aerial, aerial
\nwires, fan, air-conditioner or other device on the roof of the Building, without
\nthe prior written consent of Landlord. Any such device installed without such
\nwritten consent is subject to removal at Tenant’s expense without notice at any
\ntime. In any event Tenant will be liable for any damages or repairs incurred or
\nrequired as a result of its installation, use, repair, maintenance or removal of
\nsuch devices on the roof and agrees to indemnify and hold harmless Landlord from
\nany liability, loss, damage, cost or expense, including reasonable attorneys’
\nfees, arising from any activities of Tenant or of Tenant’s Representatives on
\nthe roof of the Building.<\/p>\n
3. SIGNAGE. No sign, placard, picture, name, advertisement or notice
\nvisible from the exterior of the Premises will be inscribed, painted, affixed or
\notherwise displayed by Tenant on or in any part of the Building without the
\nprior written consent of Landlord. Landlord reserves the right to adopt and
\nfurnish Tenant with general guidelines relating to signs in or on the Building.
\nAll approved signage will be inscribed, painted or affixed at Tenant’s expense
\nby a person approved by Landlord, which approval will not be unreasonably
\nwithheld.<\/p>\n
4. PROHIBITED USES. The Premises will not be used for manufacturing,
\nfor the storage of merchandise held for sale to the general public, for lodging
\nor for the sale of goods to the <\/p>\n
Exhibit B, Page 1<\/p>\n
general public. Tenant will not permit any food preparation on the Premises
\nexcept that Tenant may use Underwriters’ Laboratory approved equipment for
\nbrewing coffee, tea, hot chocolate and similar beverages so long as such use is
\nin accordance with all applicable federal, state and city laws, codes,
\nordinances, rules and regulations.<\/p>\n
5. JANITORIAL SERVICES. Tenant will not employ any person for the
\npurpose of cleaning the Premises or permit any person to enter the Building for
\nsuch purpose other than Landlord’s janitorial service, except with Landlord’s
\nprior written consent. Tenant will not necessitate, and will be liable for the
\ncost of, any undue amount of janitorial labor by reason of Tenant’s carelessness
\nin or indifference to the preservation of good order and cleanliness in the
\nPremises. Janitorial service will not be furnished to areas in the Premises on
\nnights when such areas are occupied after 9:30 p.m., unless such service is
\nextended by written agreement to a later hour in specifically designated areas
\nof the Premises.<\/p>\n
6. KEYS AND LOCKS. Landlord will furnish Tenant, free of charge, two
\nkeys to each door or lock in the Premises. Landlord may make a reasonable charge
\nfor any additional or replacement keys. Tenant will not duplicate any keys,
\nalter any locks or install any new or additional lock or bolt on any door of its
\nPremises or on any other part of the Building without the prior written consent
\nof Landlord and, in any event, Tenant will provide Landlord with a key for any
\nsuch lock. On the termination of the Lease, Tenant will deliver to Landlord all
\nkeys to any locks or doors in the Building which have been obtained by Tenant.<\/p>\n
7. FREIGHT. Upon not less than twenty-four hours prior notice to
\nLandlord, which notice may be oral, an elevator will be made available for
\nTenant’s use for transportation of freight, subject to such scheduling as
\nLandlord in its discretion deems appropriate. Tenant shall not transport freight
\nin loads exceeding the weight limitations of such elevator. Landlord reserves
\nthe right to prescribe the weight, size and position of all equipment,
\nmaterials, furniture or other property brought into the Building, and no
\nproperty will be received in the Building or carried up or down the freight
\nelevator or stairs except during such hours and along such routes and by such
\npersons as may be designated by Landlord. Landlord reserves the right to require
\nthat heavy objects will stand on wood strips of such length and thickness as is
\nnecessary to properly distribute the weight. Landlord will not be responsible
\nfor loss of or damage to any such property from any cause, and Tenant will be
\nliable for all damage or injuries caused by moving or maintaining such property.<\/p>\n
8. NUISANCES AND DANGEROUS SUBSTANCES. Tenant will not conduct itself
\nor permit Tenant’s Representatives or Visitors to conduct themselves, in the
\nPremises or anywhere on or in the Property in a manner which is offensive or
\nunduly annoying to any other Tenant or Landlord’s property managers. Tenant will
\nnot install or operate any phonograph, radio receiver, musical instrument, or
\ntelevision or other similar device in any part of the Common Areas and shall not
\noperate any such device installed in the Premises in such manner as to disturb
\nor annoy other tenants of the Building. Tenant will not use or keep in the
\nPremises or the Property any kerosene, gasoline or other combustible fluid or
\nmaterial other than limited quantities thereof reasonably necessary for the
\nmaintenance of office equipment, or, without Landlord’s prior written approval,
\nuse any method of heating or air conditioning other than that supplied by
\nLandlord. Tenant will not use or keep any foul or noxious gas or substance in
\nthe Premises or <\/p>\n
Exhibit B, Page 2<\/p>\n
permit or suffer the Premises to be occupied or used in a manner offensive or
\nobjectionable to Landlord or other occupants of the Building by reason of noise,
\nodors or vibrations, or interfere in any way with other tenants or those having
\nbusiness therein. Tenant will not bring or keep any animals in or about the
\nPremises or the Property.<\/p>\n
9. BUILDING NAME AND ADDRESS. Without Landlord’s prior written consent,
\nTenant will not use the name of the Building in connection with or in promoting
\nor advertising Tenant’s business except as Tenant’s address.<\/p>\n
10. WINDOW COVERINGS. No curtains, draperies, blinds, shutters, shades,
\nawnings, screens or other coverings, window ventilators, hangings, decorations
\nor similar equipment shall be attached to, hung or placed in, or used in or with
\nany window of the Building without the prior written consent of Landlord, and
\nLandlord shall have the right to control all lighting within the Premises that
\nmay be visible from the exterior of the Building.<\/p>\n
11. FLOOR COVERINGS. Tenant will not lay or otherwise affix linoleum,
\ntile, carpet or any other floor covering to the floor of the Premises in any
\nmanner except as approved in writing by Landlord. Tenant will be liable for the
\ncost of repair of any damage resulting from the violation of this rule or the
\nremoval of any floor covering by Tenant or its contractors, employees or
\ninvitees.<\/p>\n
12. WIRING AND CABLING INSTALLATIONS. Landlord will direct Tenant’s
\nelectricians and other vendors as to where and how data, telephone, and
\nelectrical wires and cables are to be installed. No boring or cutting for wires
\nor cables will be allowed without the prior written consent of Landlord. The
\nlocation of burglar alarms, smoke detectors, telephones, call boxes and other
\noffice equipment affixed to the Premises shall be subject to the written
\napproval of Landlord.<\/p>\n
13. OFFICE CLOSING PROCEDURES. Tenant will see that the doors of the
\nPremises are closed and locked and that all water faucets, water apparatus and
\nutilities are shut off before Tenant or its employees leave the Premises, so as
\nto prevent waste or damage. Tenant will be liable for all damage or injuries
\nsustained by other tenants or occupants of the Building or Landlord resulting
\nfrom Tenant’s carelessness in this regard or violation of this rule. Tenant will
\nkeep the doors to the Building corridors closed at all times except for ingress
\nand egress.<\/p>\n
14. PLUMBING FACILITIES. The toilet rooms, toilets, urinals, wash bowls
\nand other apparatus shall not be used for any purpose other than that for which
\nthey were constructed and no foreign substance of any kind whatsoever shall be
\ndisposed of therein. Tenant will be liable for any breakage, stoppage or damage
\nresulting from the violation of this rule by Tenant, its employees or invitees.<\/p>\n
15. USE OF HAND TRUCKS. Tenant will not use or permit to be used in the
\nPremises or in the Common Areas any hand trucks, carts or dollies except those
\nequipped with rubber tires and side guards or such other equipment as Landlord
\nmay approve.<\/p>\n
Exhibit B, Page 3<\/p>\n
16. REFUSE. Tenant shall store all Tenant’s trash and garbage within
\nthe Premises or in other facilities designated By Landlord for such purpose.
\nTenant shall not place in any trash box or receptacle any material which cannot
\nbe disposed of in the ordinary and customary manner of removing and disposing of
\ntrash and garbage in the city in which the Building is located without being in
\nviolation of any law or ordinance governing such disposal. All trash and garbage
\nremoval shall be made in accordance with directions issued from time to time by
\nLandlord, only through such Common Areas provided for such purposes and at such
\ntimes as Landlord may designate. Tenant shall comply with the requirements of
\nany recycling program adopted by Landlord for the Building.<\/p>\n
17. SOLICITING. Canvassing, peddling, soliciting and distribution of
\nhandbills or any other written materials in the Building are prohibited, and
\nTenant will cooperate to prevent the same.<\/p>\n
18. PARKING. Tenant will use, and cause Tenant’s Representatives and
\nVisitors to use, any parking spaces to which Tenant is entitled under the Lease
\nin a manner consistent with Landlord’s directional signs and markings in the
\nParking Facility. Specifically, but without limitation, Tenant will not park, or
\npermit Tenant’s Representatives or Visitors to park, in a manner that impedes
\naccess to and from the Building or the Parking Facility or that violates space
\nreservations for handicapped drivers registered as such with the California
\nDepartment of Motor Vehicles. Landlord may use such reasonable means as may be
\nnecessary to enforce the directional signs and markings in the Parking Facility,
\nincluding but not limited to towing services, and Landlord will not be liable
\nfor any damage to vehicles towed as a result of non-compliance with such parking
\nregulations.<\/p>\n
19. FIRE, SECURITY AND SAFETY REGULATIONS. Tenant will comply with all
\nsafety, security, fire protection and evacuation measures and procedures
\nestablished by Landlord or any governmental agency.<\/p>\n
20. RESPONSIBILITY FOR THEFT. Tenant assumes any and all responsibility
\nfor protecting the Premises from theft, robbery and pilferage, which includes
\nkeeping doors locked and other means of entry to the Premises closed.<\/p>\n
21. SALES AND AUCTIONS. Tenant will not conduct or permit to be
\nconducted any sale by auction in, upon or from the Premises or elsewhere in the
\nProperty, whether said auction be voluntary, involuntary, pursuant to any
\nassignment for the payment of creditors or pursuant to any bankruptcy or other
\ninsolvency proceeding.<\/p>\n
22. WAIVER OF RULES. Landlord may waive any one or more of these
\nBuilding Rules for the benefit of any particular tenant or tenants, but no such
\nwaiver by Landlord will be construed as a waiver of such Building Rules in favor
\nof any other tenant or tenants nor prevent Landlord from thereafter enforcing
\nthese Building Rules against any or all of the tenants of the Building.<\/p>\n
23. EFFECT ON LEASE. These Building Rules are in addition to, and shall
\nnot be construed to in any way modify or amend, in whole or in part, the terms,
\ncovenants, agreements <\/p>\n
Exhibit B, Page 4<\/p>\n
and conditions of the Lease. Violation of these Building Rules constitutes a
\nfailure to fully perform the provisions of the Lease, as referred to in Section
\n15.1 – “EVENTS OF DEFAULT”.<\/p>\n
24. NON-DISCRIMINATORY ENFORCEMENT. Subject to the provisions of the
\nLease (and the provisions of other leases with respect to other tenants),
\nLandlord shall use reasonable efforts to enforce these Building Rules in a
\nnon-discriminatory manner, but in no event shall Landlord have any liability for
\nany failure or refusal to do so (and Tenant’s sole and exclusive remedy for any
\nsuch failure or refusal shall be injunctive relief preventing Landlord from
\nenforcing any of the Building Rules against Tenant in a manner that
\ndiscriminates against Tenant).<\/p>\n
25. ADDITIONAL AND AMENDED RULES. Landlord reserves the right to
\nrescind or amend these Building Rules and\/or adopt any other and reasonable
\nrules and regulations as in its judgment may from time to time be needed for the
\nsafety, care and cleanliness of the Building and for the preservation of good
\norder therein. <\/p>\n
INITIALS:<\/p>\n
Landlord ______
\n Tenant ______<\/p>\n
Exhibit B, Page 5<\/p>\n
EXHIBIT C<\/p>\n
ATTACHED TO AND FORMING A PART OF
\n LEASE AGREEMENT<\/p>\n
DATED AS OF
\n JULY 1, 1999
\n BETWEEN
\n R & R LAND, LLC, AS LANDLORD,
\n AND
\n DEAN & DELUCA BRANDS, INC.BRANDS Inc., AS TENANT (“LEASE”)<\/p>\n
ADDITIONAL PROVISIONS RIDER<\/p>\n
35. EXTENSION OPTION.<\/p>\n
Provided that Dean & Deluca Brands, Inc has not assigned this Lease or
\nsublet any or all of the Premises (it being intended that all rights pursuant to
\nthis provision are and shall be personal to the original Tenant under this Lease
\nand shall not be transferable or exercisable for the benefit of any Transferee),
\nand provided Tenant is not in default under this Lease at the time of exercise
\nor at any time thereafter until the beginning of any such extension of the Term,
\nTenant shall have the option (the “EXTENSION OPTION”) to extend the Term for
\nthree (3) additional consecutive period[s] of three (3) years (each an
\n“EXTENSION PERIOD”), by giving written notice to Landlord of the exercise of any
\nsuch Extension Option at least six (6) months, but not more than twelve (12)
\nmonths, prior to the expiration of the initial Term or the prior Extension
\nPeriod, as the case may be. The exercise of any Extension Option by Tenant shall
\nbe irrevocable and shall cover the entire Premises leased by Tenant pursuant to
\nthis Lease. Upon such exercise, the term of the Lease shall automatically be
\nextended for the applicable Extension Period without the execution of any
\nfurther instrument by the parties; provided that Landlord and Tenant shall, if
\nrequested by either party, execute and acknowledge an instrument confirming the
\nexercise of the Extension Option. Any Extension Option shall terminate if not
\nexercised precisely in the manner provided herein. Any extension of the Term
\nshall be upon all the terms and conditions set forth in this Lease and all
\nExhibits thereto, except that: (i) Tenant shall have no further option to extend
\nthe Term of the Lease, other than as specifically set forth herein; (ii)
\nLandlord shall not be obligated to contribute funds toward the cost of any
\nremodeling, renovation, alteration or improvement work in the Premises; and
\n(iii) Base Rent for any such Extension Period shall be an additional five
\nhundred dollars ($500.00) per month per Extension Period.<\/p>\n
EXTENSION PERIOD BASE RENT
\n First Extension $3,500 per month<\/p>\n
Exhibit C, Page 6<\/p>\n
Second Extension $4,000 per month
\n Third Extension $4,500 per month<\/p>\n
The term of this Lease, whether consisting of the initial Term alone or
\nthe Initial Term as extended by any Extension Period (if any Extension Option is
\nexercised), is referred to in this Lease as the “Term.”<\/p>\n
INITIALS:<\/p>\n
Landlord ______
\n Tenant ______<\/p>\n
Exhibit C, Page 7<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7276],"corporate_contracts_industries":[9501],"corporate_contracts_types":[9583,9579],"class_list":["post-41749","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-dean---deluca-inc","corporate_contracts_industries-retail__misc","corporate_contracts_types-land__ca","corporate_contracts_types-land"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41749","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41749"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41749"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41749"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41749"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}