EXHIBIT 10.11
LEASE BETWEEN
HFS INCORPORATED
LANDLORD
AND
NRT INCORPORATED
TENANT
AT
00000 XXX XXXXXXX
XXXXXXX XXXXX, XX 00000
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TABLE OF CONTENTS
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1. Parties.......................................... 1
2. Premises......................................... 1
3. Term............................................. 1
4. Possession....................................... 1
5. Rent............................................. 1
6. Security Deposit................................. 2
7. Use.............................................. 2
8. Condition Of Premises............................ 2
9. Observance Of Law................................ 3
10. Hazardous Materials.............................. 3
11. Rights Reserved By Landlord...................... 3
12. Trade Fixtures................................... 4
13. Improvements And Alterations..................... 4
14. Tenant To Keep Premises Free Of Liens............ 5
15. Maintenance And Repairs.......................... 5
16. Insurance........................................ 5
17. Waiver Of Subrogation............................ 6
18. Exemption Of Landlord From Liability............. 7
19. Destruction...................................... 7
20. Condemnation..................................... 7
21. Abatement Of Rent; Tenant's Remedies............. 8
22. Subordination.................................... 8
23. Estoppel Certificate............................. 8
24. Utilities........................................ 9
25. Real Property Taxes And Personal Property Taxes.. 9
26. Assignment And Subletting........................ 9
27. Signage.......................................... 9
28. Tenant Defaults And Remedies..................... 9
29. Default By Landlord.............................. 12
30. Termination...................................... 12
31. Notices.......................................... 12
32. Holding Over..................................... 13
33. Attorney's Fees.................................. 13
34. Consents......................................... 13
35. Force Majeure.................................... 13
36. Waiver........................................... 14
37. Exculpation...................................... 14
38. Severability..................................... 14
39. Surrender Of The Premises........................ 14
40. Brokers And Commissions.......................... 14
41. Miscellaneous.................................... 15
42. Examination...................................... 15
43. Addendum To Lease................................ 15
LEASE
1. Parties. This Lease, dated, August __, 1997 is made by and between HFS
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INCORPORATED, a Delaware corporation, ("Landlord") and NRT INCORPORATED, a
Delaware Corporation, ("Tenant").
2. Premises. Landlord hereby leases to Tenant and Tenant leases from
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Landlord for the term, at the rental, and upon all of the conditions set
forth herein, certain portions of that certain real property commonly known
as 00000 Xxx Xxxxxxx, Xxxxxxx Xxxxx, XX 00000.
3. Term. The term of this Lease ("Term") shall be for five (5) years
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commencing on September __, 1997 the ("Commencement Date") and ending on
August 31, 2002. In addition, Tenant is hereby granted one option to extend
the term of this Lease, for five (5) years upon 30 days written notice to
Landlord ("Option Exercise Notice") prior to the end of the current term.
The Parties acknowledge and agree that the amount of space needed by Tenant
has not yet been finally determined. Consequently, the Parties agree to
negotiate in good faith in determining the premises actually leased as
needed by Tenant.
4. Possession. Tenant may assume possession of the Premises on the
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Commencement Date. Landlord agrees to perform all buildout functions for
Tenant at Landlord's actual costs. Tenant agrees to pay Landlord all
buildout costs upon completion of said buildout.
5. Rent. Landlord and Tenant agree that the Rent is on a Full Service
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Gross basis meaning Tenant shall pay only the monthly rent and Landlord shall be
responsible for all other charges associated with the property, including, but
not limited to, those listed in Exhibit A attached hereto and made a part
hereof. As rental for the Premises during the initial term and option period,
Tenant covenants and agrees to pay to Landlord the greater of the following
amounts:
a. $1.67 per square foot of rental space per month; or
b. Landlord's total annual actual costs of operating the Premises.
Tenant will pay Landlord the monthly rent of $1.67 per square foot on or
before the tenth day of each month based on the actual square feet rented by
the Tenant on the first of the month. At the end of each calendar year,
Landlord will calculate (True Up) the total, annual, actual costs for
operation of the Premises. In the event that Landlord's actual costs exceed
the total annual rent or were less than the total annual rent, Tenant will
pay Landlord or Landlord will pay Tenant, as the case may be, on or before
February 1 of the following calendar year, the difference between Landlord's
actual costs for the leased Premises and the total amount of Rent paid
during the calendar year.
GROSS LEASE
(CALIFORNIA)
If Tenant fails to pay when due any Rent or other amounts or charges which
Tenant is obligated to Pay under the terms of this Lease, the unpaid amounts
shall bear interest at the maximum rate then allowed by law. Tenant acknowledges
that the late payment of any monthly installment of Rent will cause Landlord to
lose the use of that money and incur costs and expenses not contemplated under
this Lease, including without limitation, administrative and collection costs
and processing and accounting expenses, the exact amount of which is extremely
difficult to ascertain. Therefore, in addition to interest, if any such
installment is not received by Landlord within five (5) days from the date it is
due, Tenant shall pay Landlord a late charge equal to ten percent (10%) of such
installment. Landlord and Tenant agree that this late charge represents a
reasonable estimate of such costs and expenses and is fair compensation to
Landlord for the loss suffered from such nonpayment by Tenant. Acceptance of any
interest or late charge shall not constitute a waiver of Tenant's default with
respect to such nonpayment by Tenant nor prevent Landlord from exercising any
other rights or remedies available to Landlord under this Lease. Any payment of
any kind returned for insufficient funds will be subject to an additional
handling charge of $25.00.
6. SECURITY DEPOSIT. None.
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7. Use. Tenant, along with its successors or assigns, shall be limited in
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the use of the Premises to that of general business purposes. Tenant shall not
conduct any activity or perform any act prohibited by the laws of the United
States of America or the state of California or the ordinances of the city or
county in which the Premises is situated and shall not commit waste nor suffer
waste to be committed, nor permit any nuisance on or in the Premises. The
statement regarding the nature of the business to be conducted by Tenant in the
demised Premises shall not be deemed or construed to constitute a representation
or guarantee by Landlord that such business may be conducted in the demised
Premises. Tenant shall obtain any and all permits, licenses or special hearings
needed, necessary and required in conjunction with the operation of said
business. Tenant shall not utilize any unethical method of business operation,
nor shall any space in the Premises be used for living quarters, whether
temporary or permanent. Tenant shall not do anything, or permit anything to be
done, in or about the Premises, or bring or keep anything therein, that will in
any way increase the possibility of fire or other casualty or do anything in
conflict with the valid, pertinent laws, rules or regulations of any
governmental authority. Tenant shall not use or keep in the Premises any
hazardous, inflammable or explosive fluid or substance or any illuminating
material, unless it is battery powered, UL approved. Landlord shall at all times
maintain an adequate number of suitable fire extinguishers on the Premises for
use in case of local fires, including electrical or chemical fires.
8. CONDITION OF PREMISES. Tenant's taking possession of the Premises
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shall be conclusive evidence that the Premises was in good order and
satisfactory condition when Tenant took possession. No promises of Landlord to
alter, remodel, repair or improve the Premises or the Building of which the
Premises may be a part have been made
GROSS LEASE
(CALIFORNIA)
-2-
by Landlord to Tenant, other than as may be contained herein or in a separate
Work Letter Agreement signed by Landlord and Tenant.
9. OBSERVANCE OF LAW. Tenant shall not use the Premises or permit anything
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to be done in or about the Premises which will in any way conflict with any law,
statute, ordinance or governmental or environmental rule or regulation now in
force or which may hereafter be enacted or promulgated. Tenant shall, at its
sole cost and expense, promptly comply with all laws, statutes, ordinances and
governmental or environmental rules, regulations or requirements now in force or
which may hereafter be in force, and with the requirement of any board of fire
insurance underwriters or other similar bodies now or hereafter constituted,
relating to, or affecting the condition, use or occupancy of the Premises. The
judgment of competent jurisdiction or the admission of Tenant in any action
against Tenant, whether Landlord is a party thereto or not, that Tenant has
violated any law, ordinance or governmental rule, regulation or requirement,
shall be conclusive of that fact as between Landlord and Tenant.
10. HAZARDOUS MATERIALS. Tenant, including its agents, employees,
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contractors and invitees, shall not cause nor permit the presence, release,
storage, use or handling of any toxic substances or hazardous materials in,
about or under the Premises, nor the Building nor the real property of which the
Premises may be a part. If Tenant breaches the obligations stated in the
preceding sentence, or if the presence of any such toxic substances or hazardous
materials on or about the Premises caused or permitted by Tenant results in
contamination of the Premises, the real property of which the Premises may be a
part, or any adjacent property, then Tenant shall indemnify, defend and hold
Landlord harmless from any and all claims, judgments, damages, penalties, fines,
costs, liabilities or losses (including, without limitation, diminution in value
of the Premises and/or adjacent property, damages for the loss or restriction on
use of rentable or usable space or of any amenity of the Premises and/or
adjacent property, damages arising from any adverse impact on marketing of the
Premises and/or adjacent property, costs incurred in connection with any
cleanup, remedial, removal or restoration work, and sums paid in settlement of
claims, attorney's fees, consultant fees and expert fees) which arise during or
after the Term hereof, as a result of such contamination. Nothing contained
herein shall be deemed or construed to limit the liability of Tenant to Landlord
hereunder for the breach of any covenant of Tenant under this Section. The
provisions of this Section shall survive the expiration or earlier termination
of this Lease and Tenant's surrender of the Premises to Landlord.
11. RIGHTS RESERVED BY LANDLORD. Landlord reserves the following rights:
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a) After thirty (30) days notice to Tenant, to change the name, number
or designation of the Building of which the Premises may be a part during the
term of this Lease or any extensions hereof without liability to Tenant;
GROSS LEASE
(CALIFORNIA)
-3-
b) To constantly have pass keys to the Premises and all doors within
the Premises, excluding Tenant's vaults and safes. Said keys shall only be for
use in the event of emergency;
c) To exhibit the Premises to prospective tenants during the last one
hundred and eighty (180) days of the term, and to exhibit the Premises at any
time during the term to any prospective purchaser, mortgagee, or assignee of any
mortgagee on the property on which the Premises may be situated and to others
having a legitimate interest;
d) Tenant shall permit Landlord at any time to enter the Premises to
examine and inspect the same or make such repairs, additions or alterations as
the Landlord may deem necessary or proper for the safety, improvement, or
preservation thereof. Landlord shall at all times have the right at its
reasonable election to make such alterations or changes in other portions of the
Building of which the Premises may be a part as it may from time to time deem
necessary or desirable. Landlord shall not be liable to Tenant for any damage or
inconvenience thereby suffered by Tenant.
12. TRADE FIXTURES. Tenant may install telephone systems, computers and
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trade fixtures at its own expense during the term of this Lease. At the
termination of this Lease, Tenant may either leave the trade fixtures or remove
some or all of them, at the option of Landlord. If Tenant removes trade fixtures
any damage caused by such removal shall be repaired by Tenant at Tenant's sole
expense. In the event Tenant fails to remove such office equipment and trade
fixtures at the termination of this Lease after being requested by Landlord so
to do, the same shall be deemed abandoned by Tenant, and shall immediately
become the property of Landlord. Landlord shall have the right, without notice
to Tenant, to sell or otherwise dispose of same, at the expense of Tenant, and
Landlord shall not be accountable to Tenant for any part of the proceeds of such
sale.
13. IMPROVEMENTS AND ALTERATIONS. Tenant shall not make or allow any
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alterations, additions or improvements to the Premises without first obtaining
the written consent of Landlord. Any alterations, additions, or improvements
made to the Premises at the expense of Tenant, including but not limited to,
wall covering, carpeting or other floor covering, paneling and built-in cabinets
shall be deemed a part of the real estate and the property of Landlord and shall
be surrendered with the Premises unless Landlord, by notice given to Tenant no
later than thirty (30) days prior to the end of the Term, shall elect to have
Tenant remove such alterations, additions, or improvements. Tenant shall
thereupon accomplish such removal at its sole cost and repair any damage to the
Premises or the Building of which the Premises may be a part caused by such
removal. In the event that Landlord consents in writing to any alterations,
additions, or improvements to the Premises by Tenant, they shall be made at the
sole cost of Tenant by licensed contractors or workmen approved by Landlord.
Tenant shall secure all appropriate governmental approvals and permits and shall
complete such alterations with due diligence. Any consent or approval given by
Landlord hereunder shall not give rise to rights to third parties to file
mechanic's or materialman's liens, nor waive Landlord's prohibition against such
liens, nor
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GROSS LEASE
(CALIFORNIA)
in any manner abrogate that Section of this Lease requiring Tenant to keep
Premises free of liens.
14. TENANT TO KEEP PREMISES FREE OF LIENS. Tenant shall keep the Premises
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and the property on which the Building and the Premises is situated free from
any liens arising out of any work performed, materials furnished, or obligations
incurred by Tenant. Tenant shall indemnify, hold harmless, and defend Landlord
from any liens and encumbrances arising out of any work performed or materials
furnished by or at the direction of Tenant. Such indemnity shall include,
without limitation, all attorneys' fees and costs incurred by Landlord due to
the filing of any such mechanic's and/or materialman's lien or notice thereof.
In the event that Tenant, within twenty (20) days following the imposition of
any such lien, shall not cause such lien to be released of record by payment or
posting of a proper bond, in addition to all other remedies proved herein and by
law, Landlord shall have the right (but not the obligation) to cause the same,
to be released by such means as it shall deem proper, including bonding or
payment of the claim giving rise to such lien. All such sums paid by Landlord
and all expenses incurred by it in connection therewith, including attorneys'
fees and costs, shall be payable to Landlord by Tenant on demand with the
highest legal interest rate. Landlord shall have the right at all times to give
notice or to post and keep posted on the Premises any notice permitted or
required by law which Landlord shall deem proper for the protection of Landlord
and the Premises or any other party having an interest therein from mechanic's
and materialman's liens. Tenant shall give written notice to Landlord at least
ten (10) business days prior to the commencement of any work relating to
alterations or additions to the Premises and shall post the Premises giving all
such persons notice of Landlord's non-liability for work performed or materials
supplied. Failure to provide Landlord such notice or post the Premises shall be
deemed a material breach of this Lease.
15. MAINTENANCE AND REPAIRS.
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Tenant shall keep in good order, condition and repair the non-structural
portions of the interior of the Premises and every part thereof (whether or
not the need for such repairs occurs as a result of Tenant's use, any prior
use, the elements or the age of such portion of the Premises), including,
without limiting the generality of the foregoing, all equipment within the
Premises, fixtures, walls, ceilings, floors, windows, doors, plate glass and
skylights located within the Premises.
16. INSURANCE.
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Tenant, during the term and any other period of occupancy, will at its
expense maintain insurance reasonably satisfactory to Landlord, but in no
event less than:
a) Commercial general liability insurance with combined single limits not
less than $1,000,000 per occurrence for personal injury or death and
property damage occurring in or about or related to the use of the Premises;
GROSS LEASE
(CALIFORNIA)
-5-
b) "All Risk" Insurance for the full replacement cost of all Tenant's
property in the Premises and all fixtures. Unless this Lease is terminated upon
damage or destruction, the proceeds of such insurance will be used to restore
the foregoing;
c) Worker's Compensation (as required by state law), and Employer's
Liability Insurance in the amount of not less than $5,000,000;
All policies required hereunder will be issued by carriers rated A:VII or
better by Best's Key Rating guide and licensed to do business in the State of
California. The policies shall name Landlord and any other person or entity that
Landlord may designate from time to time as additional insureds, with primary
coverage non-contributing to any insurance such entities may carry, and shall
provide that coverage cannot be canceled or materially changed except upon
thirty (30) days prior written notice to Landlord. At least thirty (30) days
prior to expiration of such policies, and promptly upon any other request by
Landlord, Tenant shall furnish Landlord with copies of Policies, or Certificates
of Insurance, evidencing maintenance and renewal of the required coverage. In
the event Tenant does not maintain said insurance, Landlord may, in its sole
discretion and without waiving any other remedies hereunder, procure said
insurance and Tenant shall pay to Landlord as rent the cost of said insurance
plus a twenty percent (20%) administrative fee.
During the term of this Lease, including all extensions thereof, Landlord
shall, at Landlord's expense, insure the Building of which the Premises may be a
part (excluding any property which Tenant is obligated to insure) against damage
with "All Risk" Insurance and public liability insurance, all in such amounts
and with such deductions as Landlord considers appropriate. Landlord may, but
shall not be obligated to, obtain and carry any other form or forms of insurance
as it or its mortgagees may determine advisable. Tenant has no right to receive
any proceeds from any insurance policies carried by Landlord. Notwithstanding
anything in the foregoing to the contrary, however, Landlord may self-insure.
If any of Landlord's insurance is (or is threatened to be) canceled or has
coverage reduced in any way because of Tenant's or its employee's acts or
omissions, Landlord may terminate this Lease and/or may enter upon the Premises
at Tenant's cost and without liability to Tenant, and attempt to remedy such
condition. A schedule issued by the organization computing the insurance rate
shall be conclusive evidence.
17. WAIVER OF SUBROGATION. Each party hereby releases and relieves the
----------------------
other and waives the right of recovery against the other for loss or damage to
property arising out of or incident to perils commonly insured against under
all-risk coverage insurance whether due to the negligence of either party, its
agents, employees, contractors and/or invitees.
-6-
GROSS LEASE
(CALIFORNIA)
18. EXEMPTION OF LANDLORD FROM LIABILITY. Except for acts or omissions of
-------------------------------------
Landlord, Tenant shall defend, indemnify and hold Landlord harmless from and
against all costs, expenses, attorneys' fees, liabilities and damages arising
out of (a) any breach or default on the part of Tenant in the observance or
performance of any of its agreements or obligations under this Lease, and (b)
any injury or damage to any person or property occurring in or on the Premises
or any other part of the property on which the Premises may be situated, caused
by the acts or omissions of Tenant, its agents, employees or contractors.
All personal property belonging to Tenant or any occupant of the Premises
that is in or on any part of the Building of which the Premises may be a part
shall be there at the risk of Tenant or of such other person only, and Landlord,
its agents and employees shall not be liable for any damage thereto or for the
theft or misappropriation thereof unless such damage, theft or misappropriation
is a result of the sole negligence of Landlord or Landlord's agents or
employees. In addition, in no event shall Landlord be liable for loss of
business of Tenant nor salaries paid to Tenant's employees, agents, or
contractors, nor for any latent defect in the Premises or in the Building of
which the Premises may be a part.
19. DESTRUCTION. "Destruction" shall mean damage or destruction to the
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Premises or the Building of which the Premises may be a part, including parking,
to the extent that the cost of the repair is greater than 30% of the fair market
value thereof immediately prior to such damage or destruction. If at any time
during the term of this Lease there is damage to such Building or the Premises,
including parking area, whether or not insured (including destruction required
by any authorized public authority), which falls into the classification of
Destruction, Landlord shall have the right to terminate this Lease by giving
Tenant written notice of such election to terminate within thirty (30) days
following such Destruction. Upon the giving of such notice, this Lease shall
terminate as of the date of such Destruction.
If at any time during the term of this Lease there is damage which does
not fall within the classification of Destruction, such damage shall be repaired
by Landlord at Landlord's expense and, in such event, there shall be no
abatement of rent.
20. CONDEMNATION. "Condemnation" shall mean the taking of more than 30%
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of the rentable space in the Building of which the Premises may be a part or any
part of the Premises by a governmental body under condemnation law or similar
authority. In the event of condemnation Landlord shall have the right to
terminate this Lease by giving Tenant written notice of such election to
terminate within thirty (30) days following such Condemnation. Upon the giving
of such notice, this Lease shall terminate as of the date of such Condemnation.
If there is a lesser taking, then Tenant's rental shall be proportionately
reduced to the extent its use of the Building is impaired. Tenant shall have no
claim against Landlord and shall not have any claim or rights to any portion of
the amount that may be awarded as damages or paid as a result of any such
condemnation;
-7-
GROSS LEASE
(CALIFORNIA)
and all rights of Tenant to damages therefor, if any, are hereby assigned by
Tenant to Landlord.
21. ABATEMENT OF RENT; TENANT'S REMEDIES. In the event of damage described
-------------------------------------
in the "Destruction" and/or "Condemnation" Sections of this Lease, while
Landlord repairs or restores the Premises, the rent payable hereunder for the
period during which such damage, repair and restoration continues shall be
abated in proportion to the degree to which Tenant's use of the Premises is
impaired.
22. SUBORDINATION. This Lease is subject and subordinate to all ground or
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underlying leases now or hereafter entered into and to all present mortgages
affecting the real estate on which the Building of which the Premises may be a
part, or such Building, to all renewals and extensions thereof (if any), and to
any mortgage or deed of trust which may hereafter be executed affecting the real
estate upon which such Building is located, or such Building. Tenant hereby
agrees to execute, if the same is required or requested, any and all instruments
in writing to subordinate Tenant's rights acquired by this Lease to the lien of
any such mortgage, lease, or deed of trust. Tenant hereby appoints Landlord its
attorney-in-fact irrevocably to execute, acknowledge, and deliver any such
instrument or instruments for Tenant as Landlord may determine necessary to
carry out the intent of this Section. Notwithstanding the foregoing, Tenant
agrees to attorn to any purchaser at foreclosure sale, to any grantee or
transferee designated in any deed given in lieu of foreclosure, or to any
mortgagee in possession, and this Lease shall thereafter continue in full force
and effect.
23. ESTOPPEL CERTIFICATE. Tenant shall at any time and from time to time,
---------------------
upon not less than five (5) days prior written notice from Landlord, execute,
acknowledge, and deliver to Landlord a statement in writing certifying that this
Lease is unmodified and in full force and effect (or, if modified, stating the
nature of such modification and certifying that this Lease, as so modified, is
in full force and effect) and the dates to which the rental, the security
deposit, if any, and other charges are paid in advance, if any, and
acknowledging that, to the best of Tenant's knowledge, there are no uncured
defaults on the part of Landlord hereunder and no events or conditions then in
existence, which, with the passage of time or notice or both, would constitute a
default on the part of Landlord hereunder or specifying such defaults, events,
or conditions if any are claimed. It is expressly understood and agreed that any
such statement may be relied upon by Landlord or any prospective purchaser or
encumbrancer of all or any portion of the Building of which the Premises may be
a part or the property upon which it is situated. Tenant's failure to deliver
such statement within such time shall constitute a breach and default under this
Lease, and shall be conclusive upon Tenant that this Lease is in full force and
effect without modifications except as may be represented by Landlord, and that
there are no uncured defaults in Landlord's performance.
GROSS LEASE
(CALIFORNIA)
-8-
24. UTILITIES. Landlord shall pay for all water, gas, heat, light, power,
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and other utilities and services supplied to the Premises, except telephone
which shall be Tenant's responsibility.
25. REAL PROPERTY TAXES AND PERSONAL PROPERTY TAXES. Landlord shall pay
------------------------------------------------
prior to delinquency all real estate taxes assessed against and levied upon the
Premises and the real property of which the Premises is a part. Tenant shall pay
prior to delinquency all taxes assessed against and levied upon trade fixtures,
furnishings, equipment and all other personal property of Tenant contained in
the Premises.
26. ASSIGNMENT AND SUBLETTING. Tenant may not assign, sublease, transfer,
--------------------------
sell, encumber or otherwise convey its interest in this Lease, or any portion
thereof, or its interest in the Premises, or any portion thereof, without the
prior written consent of Landlord, which consent may be granted or withheld in
the sole discretion of Landlord. Any such attempted purported assignment,
subletting, transfer, sale, encumbrance or other conveyance obtained without
first obtaining such prior written consent shall be void and of no force or
effect, and shall not confer any interest or estate in the purported transferee
and shall, at Landlord's option, constitute an incurable default under this
Lease.
27. SIGNAGE. Tenant may install exterior building signs if allowed by law
--------
and in conformance with local sign ordinances after obtaining Landlord's written
approval of the drawings. The removal of such signage shall be treated in the
same fashion as the removal of Trade Fixtures as set forth in Section 12 of this
Lease.
28. TENANT DEFAULTS AND REMEDIES.
-----------------------------
DEFAULTS. The occurrence of any one or more of the following events shall
constitute a default and breach of this Lease by Tenant:
a) If Tenant shall fail to make any payment of any rent when due and
payable, and such default shall continue for a period of five (5) days; or
b) (i) If Tenant shall be in default in the performance of any of the
other terms, covenants or conditions of this Lease and such default shall
not have been remedied within ten (10) days after written notice by Landlord
to Tenant specifying such default and requiring it to be remedied; or (ii)
where such default reasonably cannot be remedied within such period of ten
(10) days, if Tenant shall not have commenced the remedying thereof within
such period of time and shall not be proceeding with due diligence to remedy
it; or
c) If Tenant shall desert or abandon the Premises and such desertion or
abandonment shall continue for a period of ten (10) days; or
-9-
GROSS LEASE
(CALIFORNIA)
d) The making by Tenant of any general assignment or general arrangement
for the benefit of creditors; or the filing by or against Tenant of a petition
to have Tenant adjudged a bankrupt, or a petition of reorganization or
arrangement under any law relating to bankruptcy unless, in the case of a
petition filed against Tenant, the same is dismissed within sixty (60) days; or
the appointment of a trustee or a receiver to take possession of substantially
all of Tenant's assets located at the Premises or of Tenant's interest in this
Lease where possession is not restored to Tenant within thirty (30) days; or the
attachment, execution, or judicial seizure of substantially all of Tenant's
assets located at the Premises or of Tenant's interest in this Lease, where such
seizure is not discharged within thirty (30) days after the levy thereof.
REMEDIES. Upon the occurrence of an event of default, Landlord, in
addition to any other rights or remedies available to Landlord at law or in
equity, shall have all of the rights and remedies of a landlord as provided
under California law including the right to
a) terminate this Lease and all rights of Tenant under this Lease by
giving Tenant written notice that this Lease is terminated, in which case
Landlord may recover from Tenant the aggregate sum of
(i) the worth at the time of award of any unpaid Rent that had been
earned at the time of termination;
(ii) the worth at the time of award of the amount by which (A) the
unpaid Rent that would have been earned after termination until the time of
award exceeds (B) the amount of the Rental loss, if any, as Tenant affirmatively
proves could have been reasonably avoided;
(iii) the worth at the time of award of the amount by which (A) the
unpaid Rent for the balance of the term after the time of award exceeds (B) the
amount of Rental loss, if any, as Tenant affirmatively proves could be
reasonably avoided;
(iv) any other amount necessary to compensate Landlord for all the
detriment caused by Tenant's failure to perform Tenant's obligations or that, in
the ordinary course of things, would be likely to result from Tenant's failure;
and
(v) all other amounts in addition to or in lieu of those previously
set out as may be permitted from time to time by applicable California law.
As used in clauses (i) and (ii) of subsection (a) of this Section, the
"worth at the time of award" is computed by allowing interest at the rate of ten
percent (10%) per annum. As used in clause (iii) of subsection (a) of this
Section, the "worth at the time of award" is computed by discounting that amount
at the discount rate of the Federal Reserve Bank of San Francisco at the time of
award plus one percent (1%). As used in
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GROSS LEASE
(CALIFORNIA)
this Section, the term "Rent" shall include Base Rent and any other payments
required by Tenant under this Lease.
b) continue this Lease, and from time to time, without terminating this
Lease either
(i) recover all Rent and other amounts payable as they become due or
(ii) relet the Premises or any part on behalf of Tenant on terms and at
the rent that Landlord, in Landlord's sole discretion, may deem advisable, all
with the right to make alterations and repairs to the Premises, at Tenant's
cost, and apply the proceeds of reletting to the Rent and other amounts payable
by Tenant. To the extent that the Rent and other amounts payable by Tenant under
this Lease exceed the amount of the proceeds from reletting, the Landlord may
recover the excess from Tenant as and when due.
c) Upon the occurrence of an event of default, Landlord shall also have
the right, with or without terminating this Lease, to re-enter the Premises and
remove all persons and property from the Premises. Landlord may store the
property removed from the Premises in a public warehouse or elsewhere at the
expense and for the account of Tenant.
d) None of the following remedial actions, alone or in combination, shall
be construed as an election by Landlord to terminate this Lease unless Landlord
has in fact given Tenant written notice that this Lease is terminated or unless
a court of competent jurisdiction decrees termination of this Lease: any act by
Landlord to maintain or preserve the Premises; any efforts by Landlord to relet
the Premises; any re-entry, repossession, or reletting of the Premises; or any
re-entry, repossession, or reletting of the Premises by Landlord pursuant to
this Section. If Landlord takes any of the previous remedial actions without
terminating this Lease, Landlord may nevertheless at any later time terminate
this Lease by written notice to Tenant.
e) If Landlord relets the Premises, Landlord shall apply the revenue from
the reletting as follows: first, to the payment of any indebtedness other than
Rent due from Tenant to Landlord; second, to the payment of any cost of
reletting, including without limitation finder's fees and leasing commissions;
third, to the payment of the cost of any maintenance and repairs to the
Premises; and fourth, to the payment of Rent and other amounts due and unpaid
under this Lease. Landlord shall hold and apply the residue, if any, to payment
of future amounts payable under this Lease as the same may become due, and shall
be entitled to retain the eventual balance with no liability to Tenant. If the
revenue from reletting during any month, after application pursuant to the
previous provisions, is less than the sum of (i) Landlord's expenditures for the
Premises, during that month and (ii) the amounts due from Tenant during that
month, Tenant shall pay the deficiency to Landlord immediately upon demand.
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GROSS LEASE
(CALIFORNIA)
f) After the occurrence of an event of default, Landlord, in addition to
or in lieu of exercising other remedies, may, but without any obligation to do
so, cure the breach underlying the event of default for the account and at the
expense of Tenant. However, Landlord must by prior notice first allow Tenant a
reasonable opportunity to cure, except in cases of emergency, where Landlord may
proceed without prior notice to Tenant. Tenant shall, upon demand, immediately
reimburse Landlord for all costs, including costs of settlements, defense, court
costs, and attorney fees, that Landlord may incur in the course of any cure.
g) No security or guaranty for the performance of Tenant's obligations
that Landlord may now or later hold shall in any way constitute a bar or defense
to any action initiated by Landlord for unlawful detainer or for the recovery of
the Premises, for enforcement of any obligation of Tenant, or for the recovery
of damages caused by a breach of this Lease by Tenant or by an event of default.
h) Except where this is inconsistent with or contrary to any provisions
of this Lease, no right or remedy conferred upon or reserved to either party is
intended to be exclusive of any other right or remedy, or any right or remedy
given or now or later existing at law or in equity or by statute.
29. DEFAULT BY LANDLORD. Landlord shall not be in default unless Landlord
--------------------
fails to perform obligations required of Landlord within a reasonable time, but
in no event earlier than thirty (30) days after written notice by Tenant. If the
nature of Landlord's obligation is such that more than thirty (30) days is
required for performance then Landlord shall not be in default if Landlord
commences performance within such thirty (30) day period and thereafter
diligently prosecutes same to completion; however, Tenant shall not be entitled
to reasonable rental abatement from the date of default.
30. TERMINATION. Either Landlord or Tenant may terminate this Lease,
------------
without penalty, with or without cause upon One-Hundred and Eighty (180) days
written Notice to the other party. In addition to all post termination
obligations as well as the terms and conditions that survive the termination of
this Lease Agreement, both Landlord and Tenant agree to comply with all terms
and conditions of this Lease Agreement until the Tenant vacates the premises.
31. NOTICES. Any notice, demand, consent, payment or communication given
--------
hereunder shall be in writing and shall be given by personal delivery, by
commercial overnight delivery service or by certified mail, postage prepaid,
return receipt requested at the following address:
To Landlord: HFS Incorporated
0 Xxxxxx Xxx
Xxxxxxxxxx, XX 00000
Attention: General Counsel
GROSS LEASE
(CALIFORNIA)
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If to Tenant: NRT Incorporated
0 Xxxxxx Xxx
Xxxxxxxxxx, XX 00000
Attention: President
Either Landlord or Tenant may, by like notice at any time and from time to
time, designate a different address to which such notice shall be sent. Such
notices, requests, consents, payments or communications shall be deemed
sufficiently given (a) if personally served, upon such service, (b) if sent by
commercial overnight delivery service, upon the next business day following such
sending, or (c) if mailed, forty-eight (48) hours following the first attempt of
the postal service to deliver same.
32. Holding Over. If Tenant, with Landlord's consent, remains in
-------------
possession of the Premises after the expiration of the Term, such occupancy
shall be a tenancy from month to month upon all of the provisions of this Lease
at 100% of the last-paid monthly rental rate. If Tenant fails to surrender the
Premises after expiration or termination of the Lease, Tenant shall indemnify,
defend and hold Landlord harmless from all loss or liability, including, without
limitation, any loss or liability resulting from any claim against Landlord made
by any succeeding tenant founded on or resulting from Tenant's failure to
surrender the Premises, and losses to Landlord due to lost opportunities to
lease any portion of the Premises to succeeding tenants, together with, in each
case, actual attorney's fees and court costs.
33. ATTORNEYS' FEES. If either party brings an action to enforce the terms
----------------
hereof, the prevailing party shall be entitled to receive reasonable attorneys'
fees and court costs from the other party.
34. CONSENTS. Notwithstanding anything contained in this Lease to the
---------
contrary, Tenant shall have no claim, and hereby waives the right to any claim
against Landlord for money damages by reason of any refusal, withholding or
delaying by Landlord of any consent, approval or statement of satisfaction, and
in such event, Tenant's only remedies therefor shall be an action for specific
performance, injunction or declaratory judgment to enforce any right to such
consent, etc.
35. FORCE MAJEURE. Landlord shall have no liability whatsoever to Tenant
--------------
on account of (a) the inability or delay of Landlord in fulfilling any of
Landlord's obligations under this Lease by reason of war, strike, other labor
trouble, governmental controls in connection with a national or other public
emergency, or shortages of fuel, supplies or labor resulting therefrom or any
other cause, whether similar or dissimilar to the above, beyond Landlord's
reasonable control; or (b) any failure or defect in the supply, quantity or
character of electricity or water furnished to the Premises, by reason of any
requirement, act or omission of the public utility or others furnishing the
Premises with electricity or water, or for any reason, whether similar or
dissimilar to the above, beyond Landlord's reasonable control. Any time period
for performance of an obligation of
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GROSS LEASE
(CALIFORNIA)
Landlord shall be extended by the period of any delay in Landlord's performance
caused by any of the events of force majeure described above.
36. Waiver. No delay or omission in the exercise of any right or remedy of
-------
Landlord upon any default by Tenant shall impair such right or remedy or
be construed as a waiver of such right, remedy or default.
The receipt and acceptance by Landlord of delinquent rent shall not
constitute a waiver of any other default; it shall constitute only a waiver of
timely payment for the particular rent payment involved.
Landlord's consent to or approval of any act by Tenant requiring
Landlord's consent or approval shall not be deemed to waive or render
unnecessary Landlord's consent to or approval of any subsequent act by Tenant.
Any waiver by Landlord of any default must be in writing and shall not be a
waiver of any other default concerning the same or any other provision of the
Lease.
37. EXCULPATION. If Landlord or any successor in interest be an
------------
individual, corporation, joint venture, tenancy in common, co-partnership, or
other unincorporated aggregate of individuals or a mortgagee (all of which are
herein referred to individually and collectively as "Landlord"), then anything
elsewhere in this Lease to the contrary notwithstanding, Tenant shall look
solely to the estate and property of such Landlord in the Building of which the
Premises may be a part for the satisfaction of Tenant's remedies for the
collection of a judgment (or other judicial process) requiring the payment of
money by Landlord in the event of any default or breach by Landlord with respect
to any of the terms, covenants, or conditions of this Lease to be observed
and/or performed by Landlord, and no other property or assets of such Landlord
shall be subject to levy, execution or other enforcement procedure for the
satisfaction of Tenant's remedies.
38. SEVERABILITY. If any clause or provision of this Lease is or becomes
-------------
illegal, invalid, or unenforceable because of present or future laws or judicial
interpretations, or any rule or regulation of any governmental body or entity,
effective during its Term, the intention of the parties hereto is that the
remaining parts of this Lease shall not be affected thereby unless such
invalidity is, in the sole determination of Landlord, essential to the rights of
both parties in which event Landlord has the right to terminate this Lease on
written notice to Tenant.
39. SURRENDER OF THE PREMISE. At the termination of this Lease, Tenant
-------------------------
shall return the Premises broom-clean and in as good condition as when Tenant
took possession, ordinary wear and tear excepted, failing which landlord may
restore the Premises to such condition and Tenant shall pay the cost thereof on
demand.
40. BROKERS AND COMMISSIONS. Deleted.
------------------------
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GROSS LEASE
(CALIFORNIA)
41. MISCELLANEOUS. No act or conduct of Landlord, including, without
--------------
limitation, the acceptance of keys to the Premises, shall constitute an
acceptance of the surrender of the Premises by Tenant before the expiration of
the Term. Only a written notice from Landlord to Tenant shall constitute
acceptance of the surrender of the Premises and accomplish a termination of the
Lease.
This Lease may be executed in multiple counterparts, all of which shall
constitute one and the same Lease.
This Lease contains all of the agreements of the parties with respect to
any matter covered or mentioned in this Lease, and no prior agreement or
understanding pertaining to any such matter shall be effective for any purpose.
No provisions of this Lease may be amended or added to except by an agreement in
writing signed by both parties or their respective successors in interest.
The captions, section numbers and table of contents appearing in this
Lease are inserted only as a matter of convenience and in no way define, limit,
construe or describe the scope or intent of such sections of this Lease nor in
any way affect this Lease.
This Lease, and the rights and obligations of the parties hereto, shall be
construed and enforced in accordance with the laws of the State of California.
Except as otherwise expressly provided herein, the terms and agreements as
contained in this Lease shall apply to, run in favor of, and shall be binding
upon and inure to the benefit of, the parties hereto, and also their respective
heirs, executors, administrators, personal representatives, assigns and
successors in interest.
Nothing herein contained shall be deemed or construed as creating the
relationship of principal and agent or of partnership or joint venture between
the parties hereto; it being understood and agreed that neither the method of
computing rent nor any provision contained herein nor any acts of the parties
hereto shall be deemed to create any relationship between the parties other than
that of landlord and tenant.
42. EXAMINATION. The submission of this Lease to Tenant shall be for
------------
examination purposes only, and does not and shall not constitute a reservation
of or option for Tenant to lease, or otherwise create any interest of Tenant in
the Premises or any other premises within the property on which the Premises may
be situated. Execution of this Lease by Tenant and its return to Landlord shall
not be binding on Landlord notwithstanding any time interval, until Landlord has
in fact signed and delivered this Lease to Tenant.
43. ADDENDUM TO LEASE. The "Addendum to Lease" attached hereto and
-----------------
executed contemporaneously herewith, containing Section 43, is incorporated
herein by reference as though fully set forth.
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GROSS LEASE
(CALIFORNIA)
IN WITNESS WHEREOF, the parties have executed this Lease as of the date
first written above.
HFS INCORPORATED
By: /s/ Xxxxxx X. Xxxx
---------------------------------
Xxxxxx X. Xxxx
Xx, V.P. Acquisition Landlord
NRT INCORPORATED
By: /s/ Xxxxxx Xxxxxx
-------------------------------
Vice President Tenant
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GROSS LEASE
(CALIFORNIA)
EXHIBIT A
1. Landlord, at Landlord's sole cost and expense, shall provide the
following:
a. Janitorial service
b. Mail services
c. Building supplies (e.g., cleaning products, paper goods, etc.)
d. Office supplies
e. Security
f. General lobby reception
2. Landlord shall also be responsible for payment of all other costs related
to the building and Premises including, but not limited to the following:
a. Property tax
b. Property insurance
c. Maintenance and repairs of building and Premises
Exhibit A
GROSS LEASE
(CALIFORNIA)
ADDENDUM TO LEASE
-----------------
THIS ADDENDUM is to that certain lease ("Lease") dated, for reference
purposes only, May 7, 1997 by and between HFS Incorporated, a Delaware
corporation, ("Landlord") and NRT Incorporated, a Delaware corporation,
("Tenant"), is executed contemporaneously therewith, is to be deemed a part
thereof and incorporated therein.
43. ADJUSTMENT OF PREMISES. Landlord acknowledges that in order to suit
-----------------------
its business purpose, Tenant's space requirements may vary from time to time
and Tenant shall be allowed to reduce or increase the square footage of the
Premises as needed and as space becomes available. Tenant shall give
Landlord sixty (60) days notice of its intent to adjust the size of or
reallocate the space in the Premises. Said adjustments and/or reallocations
shall be accomplished pursuant to an amendment to the Lease and the rental
amount due shall be amended accordingly.
IN WITNESS WHEREOF, the parties have executed this Addendum to Lease
contemporaneously with the Lease to which it is attached.
HFS INCORPORATED
By: /s/ Xxxxxx X. Xxxx
------------------------------------
Xxxxxx X. Xxxx
Xx. V.P. Acquisitions
Landlord
NRT INCORPORATED
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Vice President
Tenant
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