Exhibit 10.7
OFFICE BUILDING LEASE
1. PARTIES This Lease, dated, for reference purposes only, July 1, 1993 is
made by and between The Xxxxxx and Xxx Xxxx Revocable Trust (herein
called "Landlord") and Fair, Xxxxx and Company, Incorporated, (herein
called "Tenant").
2. PREMISES Landlord does hereby lease to Tenant and Tenant hereby leases
from Landlord that certain office space (herein called "Premises")
indicated on Exhibit "A" attached hereto and reference thereto made a
part hereof, said Premises being agreed, for the purposes of this Lease,
to have an area of approximately 15,090 rentable square feet and 13,595
useable square feet, being situated in Suite 330 on the third floor of
that certain Building known as Regency Center, 000 Xxxxx Xxxxx Xxxx, Xxx
Xxxxxx, Xxxxxxxxxx 00000.
Said Lease is subject to the terms, covenants and conditions herein set
forth and the Tenant covenants as a material part of the consideration
for this Lease to keep and perform each and all of said terms, covenants
and conditions and that this Lease is made upon the condition of said
performance.
3. TERM The term of this Lease shall be for eight (8) years and five (5)
months, commencing on the 1st day of July, 1993, and ending on the 30th
day of November, 2001.
4. POSSESSION Tenant is currently in possession of the space and shall
remain in possession.
5. A. RENT Tenant agrees to pay to Landlord as rental for the premises,
without prior notice or demand, the sum of Thirty Thousand One
Hundred and Eighty Dollars ($30,180.00) on or before the first day
of the first full calendar month of the term hereof and a like sum
on or before the first day of each and every successive calendar
month thereafter during the term hereof, except that the first
month's rent shall be paid upon the execution of this Lease. Rent
for any period during the term which is for less than one (1) month
shall be a prorated portion of the monthly installment herein,
based upon a thirty (30) day month. Said rental shall be paid to
Landlord without deduction or offset in lawful money of the United
States of America, which shall be legal tender at the time of
payment at 000 Xxxxx Xxxxx Xxxx, Xxxxx 000, Xxx Xxxxxx, Xxxxxxxxxx
00000, or to such other place as Landlord may from time to time
designate in writing.
B. RENT ESCALATIONS Commencing on the 17th month of this Lease
(December 1, 1994) and on each annual anniversary following, the
base rent shall be adjusted by the increase, if any, in the
Consumer Price Index of the Bureau of Labor Statistics of the U. S.
Department of Labor for All Urban Consumers, San
Francisco-Oakland-San Xxxx (1984=100), "All Items" herein referred
to as "C.P.I."
The C.P.I. increase shall be calculated as follows: The base rent
payable for the first month term of this Lease shall be multiplied
by the percentage change in the C.P.I. for the 12 months preceding
December 1, 1994. On each anniversary following, the base rent
shall be multiplied by the percentage change in the C.P.I. for the
12 months preceding. No single increase shall exceed 4% of the
previous year's rental rate and in no event shall the new monthly
rent be less than the rent payable for the month immediately
preceding the date for rent adjustment.
6. SECURITY DEPOSIT Tenant has deposited with Landlord the sum of Thirty
Thousand One Hundred and Eighty Dollars ($30,180.00). Said sum shall be
held by Landlord as security for the faithful performance by Tenant of
all the terms, covenants, and conditions of this Lease to be kept and
performed by Tenant during the term hereof. If Tenant defaults with
respect to any provision of this Lease including, but not limited to, the
provisions relating to the payment of rent, Landlord may (but shall not
be required to) use, apply or retain all or any part of this security
deposit for the payment of any rent or any other sum in default, or for
the payment of any amount which Landlord may spend or become obligated to
spend by reason of Tenant's default to compensate Landlord for any other
loss or damage which Landlord may suffer by reason of Tenant's default.
If any portion of said deposit is so used or applied, Tenant shall,
within five (5) days after written demand therefor, deposit cash with
Landlord in an amount sufficient to restore the security deposit to its
original amount and Tenant's failure to do so shall be a material breach
of this Lease. Landlord shall not be required to keep this security
deposit separate from its general fund and Tenant shall not be entitled
to interest on such deposit. If Tenant shall fully and faithfully perform
every provision of this Lease to be performed by it, the security deposit
or any balance thereof shall be returned to Tenant (or, at Landlord's
option, to the last assignee of Tenant's interest hereunder) at the
expiration of the Lease term. In the event of termination of Landlord's
interest in this Lease, Landlord shall transfer said deposit to
Landlord's successor in interest. Tenant is entitled to a Security
Deposit credit in the amount of $1,911.67 ($32,091.67 - $30,180.00) as a
result of renegotiating the existing lease dated December 15, 1988.
7. OPERATING EXPENSE ADJUSTMENTS For the purposes of this Article, the
following terms are defined as follows:
Base Year The Base Year shall be 1993.
Comparison Year Each calendar year of the term after the Base Year.
Direct Expenses All direct costs of operation and maintenance, as
determined by standard accounting practices, including
the following costs by way of illustration, but not be
limited to: real property taxes and assessments; rent
taxes, gross receipt taxes, (whether assessed against
the Landlord or assessed against the Tenant and
collected by the Landlord, or both); water and sewer
charges; insurance premiums; utilities; janitorial
services; labor; costs incurred in the management of
the Building; air conditioning & heating; elevator
maintenance; supplies; materials; equipment and tools;
and maintenance, costs and upkeep of all parking and
common areas. ("Direct Expenses" shall not include
depreciation on the Building of which the Premises are
a part or equipment therein, loan payments, executive
salaries or real estate broker's commissions.)
If the Direct Expenses paid or incurred by the Landlord for the
Comparison Year on account of the operation or maintenance of the
Building of which the Premises are a part are in excess of the Direct
Expenses paid or incurred for the Base Year, then the Tenant shall pay
14.51% of the increase. This percentage is that portion of the total
rentable area of the Building occupied by the Tenant hereunder. Landlord
shall endeavor to give to Tenant on or before the first day of March of
each year following the respective Comparison Year a statement of the
increase in rent payable by Tenant hereunder, but failure by Landlord to
give such statement by said date shall not constitute a waiver by
Landlord of its right to require an increase in rent. Upon receipt of the
statement for the first Comparison Year, Tenant shall pay in full the
total amount of the increase due for the first Comparison Year and, in
addition for the then current year, the amount of any such increase shall
be used as an estimate for said current year and this amount shall be
divided
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into twelve (12) equal monthly installments and Tenant shall pay to
Landlord, concurrently with the regular monthly rent payment next due
following the receipt of such statement, an amount equal to one (1)
monthly installment multiplied by the number of months from January in
the calendar year in which said statement is submitted to the month of
such payment, both months inclusive. Subsequent installments shall be
payable concurrently with the regular monthly rent payments for the
balance of that calendar year and shall continue until the next
Comparison Year's statement is rendered. If the next or any succeeding
Comparison Year results in a greater increase in Direct Expenses, then
upon receipt of a statement from Landlord, Tenant shall pay a lump sum
equal to such total increase in Direct Expenses over the Base Year, less
the total of the monthly installments to be paid for the next year,
following said Comparison Year, shall be adjusted to reflect such
increase. If in any Comparison Year the Tenant's share of Direct Expenses
be less than the preceding year, then upon receipt of Landlord's
statement, any overpayment made by Tenant on the monthly installment
basis provided above shall be credited towards the next monthly rent
falling due and the estimated monthly installments of Direct Expenses to
be paid shall be adjusted to reflect such lower Direct Expenses for the
most recent Comparison Year.
Even though the term has expired and Tenant has vacated the Premises,
when the final determination is made of Tenant's share of Direct Expenses
for the year in which this Lease terminates, Tenant shall immediately pay
any increase due over the estimated expenses paid and conversely any
overpayment made in the event said expenses decrease shall be immediately
rebated by Landlord to Tenant.
Notwithstanding anything contained in this Article, the rent payable by
Tenant shall in no event be less than the rent specified in Article 5
hereinabove.
See Addendum to Lease, P. 1, Operating Expense Adjustments.
8. USE Tenant shall use the Premises for general office purposes and shall
not use or permit the Premises to be used for any other purposes without
the prior written consent of Landlord.
General office purposes shall be defined for purposes of this Lease to
include computer rooms of any size required by Tenant.
Tenant shall not do or permit anything to be done in or about the
Premises nor bring or keep anything therein which will in any way
increase the existing rate of or affect any fire or other insurance upon
the Building or any of its contents, or cause cancellation of any
insurance policy covering said Building or any part thereof or any of its
contents. Tenant shall not do or permit anything to be done in or about
the Premises which will in any way obstruct or interfere with the rights
of other tenants or occupants of the Building on injure or annoy them or
use or allow the Premises to be used for any improper, immoral, unlawful
or objectionable purpose, nor shall Tenant cause, maintain or permit any
nuisance in, on or about the Premises. Tenant shall not commit or suffer
to be committed any waste in or upon the Premises.
9. COMPLIANCE WITH LAW Tenant shall not use the Premises or permit anything
to be done in or about the Premises which will in any way conflict with
any law, statute, ordinance or governmental 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 rules now in force or which may hereafter be
in force, and with the requirements of any board of fire insurance
underwriters or other similar bodies now or hereafter constituted,
relating to, or affecting the condition, use or
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occupancy of the Premises, excluding changes not related to or affected
by Tenant's improvements or acts. The judgment of any court of competent
jurisdiction or the admission of Tenant in any action against Tenant,
whether Landlord be a party thereto or not, that Tenant has violated any
law, statute, ordinance or governmental rule, regulation or requirement,
shall be conclusive of that fact as between the Landlord and Tenant.
10. ALTERATIONS AND ADDITIONS Tenant shall not make or suffer to be made any
alterations, additions or improvements to or of the Premises or any part
thereof without the written consent of Landlord first had and obtained.
Any alterations, additions or improvements to or of said Premises
including, but not limited to, wallcovering, paneling, air conditioning
units and built-in cabinet work, but excepting movable furniture and
trade fixtures, shall on the expiration of the term become a part of the
realty and belong to the Landlord and shall be surrendered with the
Premises. In the event Landlord consents to the making of any
alterations, additions or improvements to the Premises by Tenant, the
same shall be made by Tenant at Tenant's sole cost and expense, and any
contractor or persons selected by Tenant to make the same must first be
approved in writing by the Landlord. Such approval shall not be
unreasonably withheld. Upon the expiration or sooner termination of the
term hereof, Tenant shall, upon written demand by Landlord which shall be
given at the time Landlord approves the tenant improvement work, , at
Tenant's sole cost and expense, forthwith and with all due diligence,
remove any alterations, additions, or improvements made by Tenant,
designated by Landlord to be removed, and Tenant shall, forthwith and
with all due diligence at its sole cost and expense, repair any damage to
the Premises caused by such removal.
11. REPAIRS
A. By taking possession of the Premises, Tenant shall be deemed to
have accepted the Premises as being in good, sanitary order,
condition and repair. Tenant shall, at Tenant's sole cost and
expense, keep the Premises and every part thereof in good condition
and repair damage thereto from causes beyond the reasonable control
of Tenant with ordinary wear and tear excepted. Tenant shall upon
the expiration or sooner termination of this Lease hereof surrender
the Premises to the Landlord in good condition, ordinary wear and
tear and damage from causes beyond the reasonable control of Tenant
excepted. Except as specifically provided in an addendum, if any,
to this Lease, Landlord shall have no obligation whatsoever to
alter, remodel, improve, repair, decorate or paint the Premises or
any part thereof once the initial tenant improvements are completed
and the parties hereto affirm that Landlord has made no
representations to Tenant respecting the condition of the Premises
or the Building except as specifically herein set forth.
B. Notwithstanding the provisions of Article 11. A. hereinabove,
Landlord shall repair and maintain the structural portions of the
Building, including the basic plumbing, air conditioning, heating
and electrical systems installed or furnished by Landlord unless
such maintenance and repairs are caused in part or in whole by the
act, neglect, fault or omission of any duty by the Tenant, its
agents, servants, employees or invitees, in which case Tenant shall
pay to Landlord the reasonable cost of such maintenance and
repairs. Landlord shall not be liable for any failure to make any
such repairs or to perform any maintenance unless such failure
shall persist for an unreasonable time after written notice of the
need of such repairs or maintenance is given to Landlord by Tenant.
Except as provided in Article 22 hereof, there shall be no
abatement of rent and no liability of Landlord by reason of any
injury to or interference with Tenant's business arising from the
making of any repairs, alterations or improvements in or to any
portion of the Building or the Premises, or in or to fixtures,
appurtenances and equipment therein. Tenant waives the right to
make repairs at Landlord's expense
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under any law, statute or ordinance now or hereafter in effect
(including the provisions of California Civil Code Sections 1941
and 1942 and any successor sections or statutes of a similar
nature); provided, however, if Landlord fails to perform any repair
work required of Landlord with respect to the Premises pursuant to
this Paragraph, within thirty (30) days after Landlord receives
Tenant's written notice of the need for such repair (or such period
of time in excess of thirty (30) days as is reasonably necessary
based upon the nature of the required work), then Tenant shall be
permitted to make such repairs, using contractors reasonably
approved by Landlord, provided (i) Tenant first gives Landlord an
additional two (2) business days' prior written notice indicating
that Tenant intends to undertake such repair, and (ii) Landlord
fails to commence such repair within such two (2) business day
period. If Tenant performs any repair as permitted under this
Paragraph, Landlord agrees to reimburse Tenant for the reasonable,
actual and documented costs of such repair performed by Tenant, but
without any off-set rights against rent or any other amounts
payable by Tenant under this Lease. Any repair work done by Tenant
shall be done in accordance with the provisions of this Lease,
including without limitation, Paragraph 12, keeping the premises
free from liens.
12. LIENS Tenant shall keep the Premises and the property in which the
Premises are situated free from any liens arising out of any work
performed, materials furnished or obligations incurred by Tenant.
Landlord may require, at Landlord's sole option, that Tenant shall
provide to Landlord, at Tenant's sole cost and expense, a lien and
completion bond in an amount equal to one and one-half (1-1/2) times any
and all estimated cost of any improvements, additions or alteration in
the Premises to insure Landlord against any liability for mechanics' and
materialmen's liens and to insure completion of the work.
13. ASSIGNMENT AND SUBLETTING Tenant shall not either voluntarily or by
operation of law, assign, transfer, mortgage, pledge, or encumber this
Lease or any interest therein, and shall not sublet the said Premises or
any part thereof, or any right or privilege appurtenant thereto, or
suffer any other person (the employees, agents, servants and invitees of
Tenant excepted) to occupy or use the said Premises or any portion
thereof, without written consent of Landlord first had and obtained,
which consent shall not be unreasonably withheld; provided however, that
Landlord in the exercise of its good faith business judgment may refuse
to approve the assignment or sublease and shall promptly provide Tenant
with the reasons for its refusal. In the event Tenant desires to assign
this Lease or any interest therein or sublet all or part of the Premises,
Tenant shall give Landlord written notice thereof, which notice shall
include (i) the name of the proposed assignee, subtenant or occupant
("Transferee"), (ii) reasonable financial information regarding the
Transferee, (iii) a description of the Transferee's business to be
carried on in the Premises, and (iv) the terms of the assignment or
sublease and a description of the portion of the Premises to be affected.
Tenant shall also provide Landlord such additional information regarding
the Transferee or the proposed assignment or sublease as Landlord may
reasonably request.
Notwithstanding the foregoing, Tenant shall have the right to assign or
sublet the premises, or a portion thereof, to a wholly owned affiliated
company or subsidiary, without the Landlord's consent. Tenant shall be
required, however, to give written notice to Landlord in advance of such
assignment or sublet and to prepare assignment or sublet agreements on
forms that are reasonably satisfactory to Landlord. In no event shall
such an assignment or sublet release Tenant from its obligations under
the terms of this Lease.
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Consent to one assignment, subletting, occupation or use by any other
person shall not be deemed to a consent to any subsequent assignment,
subletting, occupation or use by another person. Any assignment or
subletting without such consent shall be void, and shall, at the option
of the Landlord, constitute a default under this Lease.
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14. HOLD HARMLESS Tenant shall indemnify and hold harmless Landlord against
and from any and all claims arising from Tenant's use of Premises for the
conduct of its business or from any activity, work or other thing done,
permitted or suffered by the Tenant in or about the Building, and shall
further indemnify and hold harmless Landlord against and from any and all
claims arising from any breach or default in the performance of any
obligation on Tenant's part to be performed under the terms of this
Lease, or arising from any act or negligence of the tenant, or any
officer, agent, employee, guest or invitee of Tenant, and from and
against all cost, attorney's fees, expenses and liabilities incurred in
or about any such claim or any action or proceeding brought thereon and
in any case, action or proceeding brought against Landlord by reason of
any such claim. Tenant upon notice from Landlord shall defend the same at
Tenant's expense by counsel reasonably satisfactory to Landlord. Tenant
as a material part of the consideration to Landlord hereby assumes all
risk of damage to property or injury to persons, in, upon or about the
Premises, from any cause other than Landlord's negligence or willful act,
and Tenant hereby waives all claims in respect thereof against Landlord.
Landlord or its agents shall not be liable for any damage to property
entrusted to employees of the Building, nor for loss or damage to any
property by theft or otherwise, nor for any injury to or damage to
persons or property resulting from fire, explosion, falling plaster,
steam, gas, electricity, water or rain which may leak dampness or any
other cause whatsoever, unless caused by or due to the negligence or
willful acts of Landlord, its agents, servant or employees. Landlord or
its agents shall not be liable for interference with the light or other
incorporeal hereditaments, less of business by Tenant, nor shall Landlord
be liable for any latent defect in the premises or in the Building.
Tenant shall give prompt notice to Landlord in case of fire or accidents
in the Premises or in the Building or of defects therein or in the
fixtures or equipment.
15. SUBROGATION Landlord and Tenant hereby mutually waive their respective
rights of recovery against each other for any loss insured by fire,
extended coverage and other property insurance policies existing for the
benefit of the respective parties. Each party shall obtain any special
endorsements, if required by their insurer to evidence compliance with
the aforementioned waiver.
16. LIABILITY INSURANCE Tenant shall, at Tenant's expense, obtain and keep in
force during the term of this Lease, (1) a policy of comprehensive
general liability insurance insuring Landlord and Tenant against any
liability arising out of the ownership, use, occupancy or maintenance of
the Premises and all areas appurtenant thereto; (2) workers' compensation
insurance as may be required by law; and (3) "all risk" property
insurance on Tenant's above-standard tenant improvements, personal
property, equipment, furniture and fixtures. The limit of said insurance
shall not, however, limit the liability of the Tenant hereunder. Tenant
may carry said insurance under a blanket policy, providing, however, said
insurance by Tenant shall have a Landlord's protective liability
endorsement attached thereto. If Tenant shall fail to procure and
maintain said insurance, Landlord may, but shall not be required to,
procure and maintain same, but at the expense of Tenant. Insurance
required hereunder, shall be in companies rated A+ AAA or better in
"Best's Insurance Guide." Tenant shall deliver to Landlord prior to
occupancy of the Premises copies of policies of insurance required herein
or certificates evidencing the existence and amounts of such insurance
with loss payable clauses reasonably satisfactory to Landlord. No policy
shall be cancelable or subject to reduction of coverage except after ten
(10) days prior written notice to Landlord.
17. See Addendum to Lease, P. 5, Services and Utilities.
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18. PROPERTY TAXES Tenant shall pay, or cause to be paid, before delinquency,
any and all taxes levied or assessed and which become payable during the
term hereof upon all Tenant's leasehold improvements, equipment,
furniture, fixtures and personal property located in the Premises; except
that which has been paid for by Landlord, and is the standard of the
Building. In the event any or all of the Tenant's leasehold improvements,
equipment, furniture, fixtures and personal property shall be assessed
and taxed with the Building, Tenant shall pay to Landlord its share of
such taxes within ten (10) days after delivery to Tenant by Landlord of a
statement in writing setting forth the amount of such taxes applicable to
Tenant's property.
19. RULES AND REGULATIONS Tenant shall faithfully observe and comply with the
reasonable rules and regulations that Landlord shall from time to time
promulgate. Landlord reserves the right from time to time to make all
reasonable modifications to said rules. The additions and modifications
to those rules shall be binding upon Tenant upon delivery of a copy of
them to Tenant. Landlord shall not be responsible for the nonperformance
of any said rules by any other tenants or occupants. These rules and
regulations shall be applied equally to all Tenants occupying Regency
Center.
20. HOLDING OVER If Tenant remains in possession of the Premises or any part
thereof after the expiration of the term hereof, with the express written
consent of Landlord, such occupancy shall be a tenancy from
month-to-month at a rental in the amount of the last monthly rental, plus
all other charges payable hereunder, and upon all the terms hereof
applicable to a month-to-month tenancy.
21. ENTRY BY LANDLORD Landlord reserves and shall at any and all times have
the right to enter the Premises, inspect the same, supply janitorial
service and any other service to be provided by Landlord to Tenant
hereunder, to submit said Premises to prospective purchasers or tenants,
to post notices of non-responsibility, and to alter, improve or repair
the Premises and any portion of the Building of which the Premises are a
part that Landlord may deem necessary or desirable, without abatement of
rent and may for that purpose erect scaffolding and other necessary
structures where reasonably required by the character of the work to be
performed, always providing that the entrance to the Premises shall not
be blocked thereby, and further providing that the business of the Tenant
shall not be interfered with unreasonably. Tenant hereby waives any claim
for damages or for any injury or inconvenience to or interference with
Tenant's business any loss of occupancy or quiet enjoyment of the
Premises, and any other loss occasioned thereby. For each of the
aforesaid purposes, Landlord shall at all times have and retain a key
with which to unlock all of the doors in, upon and about the Premises,
excluding Tenant's vaults, safes and files, and specific, secured,
sensitive and confidential offices and Landlord shall have the right to
use any and all means which Landlord may deem proper to open said doors
in any emergency, in order to obtain entry to the Premises without
liability to Tenant except for any failure to exercise due care for
Tenant's property. Any entry to the Premises obtained by Landlord by any
of said means, or otherwise shall not under any circumstances be
construed or deemed to be a forcible or unlawful entry into, or a
detainer of, the Premises, or an eviction of Tenant from the Premises or
any portion thereof.
22. RECONSTRUCTION In the event the Premises or the Building of which the
Premises are a part are damaged by fire or other perils covered by
extended coverage insurance, Landlord agrees to forthwith repair the
same, and this Lease shall remain in full force and effect, except that
Tenant shall be entitled to a proportionate reduction of the rent while
such repairs are being made, such proportionate reduction to be based
upon the extent to which the making of such repairs shall materially
interfere with the business carried on by the Tenant in the Premises. If
the damage is due to the fault or neglect of Tenant or its employees,
there shall be no abatement of rent.
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In the event the Premises or the Building of which the Premises are a
part are damaged as a result of any cause other than the perils covered
by fire or extended coverage insurance, then Landlord shall forthwith
repair the same provided the extent of the destruction be less than ten
(10%) of the then full replacement cost of the Premises or the Building
of which the Premises are a part. In the event the destruction of the
Premises or the Building is to an extent greater than ten (10%) of the
full replacement cost, then Landlord shall have the option (1) to repair
or restore such damage, this Lease continuing in full force and effect,
but the rent to be proportionately reduced as hereinabove in this Article
provided; or (2) give notice to Tenant at any time within sixty (60) days
after such damage terminating this Lease as of the date specified in such
notice, which date shall be no less than thirty (30) and no more than
sixty (60) days after the giving of such notice. In the event of giving
such notice, this Lease shall expire and all interest of the Tenant in
the Premises shall terminate on the date so specified in such notice and
the Rent, reduced by a proportionate amount, based upon the extent, if
any, to which such damage materially interfered with the business carried
on by the Tenant in the Premises, shall be paid up to date of said such
termination.
Notwithstanding anything to the contrary contained in this Article,
Landlord shall not have any obligation whatsoever to repair, reconstruct
or restore the damage to the Premises resulting from any casualty covered
under this Article which occurs during the last twelve (12) months of the
term of this Lease or any extension thereof.
Landlord shall not be required to repair any injury or damage by fire or
other cause, or to make any repairs to replacements of any trade
fixtures, equipment, furniture, personal property, or any tenant
improvements added to the Premises by Tenant after the initial
improvements were installed.
Except for abatement of rent as provided above, the Tenant shall not be
entitled to any compensation or damages from Landlord for loss of the use
of the whole or any part of the premises, Tenant's personal property or
any inconvenience or annoyance occasioned by such damage, repair,
reconstruction or restoration.
23. DEFAULT The occurrence of any or more of the following events shall
constitute a default and breach of this Lease by Tenant:
A. The vacating or abandonment of the Premises by Tenant, except in
cases when Tenant is current with all rental payments.
B. The failure by Tenant to make any payment of rent or any other
payment required to be made by Tenant hereunder, as and when due,
where such failure shall continue for a period of ten (10) days
after written notice thereof by Landlord to Tenant.
C. The failure by Tenant to observe or perform any of the covenants,
conditions or provisions of this Lease to be observed or performed
by the Tenant, other than described in Article 23.B. above, where
such failure shall continue for a period of thirty (30) days after
written notice thereof by Landlord to Tenant; provided, however,
that if the nature of Tenant's default is such that more than
thirty (30) days are reasonably required for its cure, then Tenant
shall not be deemed to be in default if Tenant commences such cure
within said thirty (30) day period and thereafter diligently
prosecutes such cure to completion.
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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 or 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
other judicial seizure of substantially all of Tenant's assets
located at the Premises or of Tenant's interests in this Lease,
where such seizure is not discharged in thirty (30) days.
24. REMEDIES IN DEFAULT In the event of any such material default or breach
by Tenant, Landlord may at any time thereafter, with or without notice or
demand and without limiting Landlord in the exercise of a right or remedy
which Landlord may have by reason of such default or breach:
A. Terminate Tenant's right to possession of the Premises by any
lawful means, in which case this Lease shall terminate and Tenant
shall immediately surrender possession of the Premises to Landlord.
In such event Landlord shall be entitled to recover from Tenant all
damages incurred by necessary renovation and alteration of the
Premises, reasonable attorney's fees, any real estate commission
actually paid, the worth at the time of award by the court having
jurisdiction thereof of the amount by which the unpaid rent for the
balance of the term after the time of such award exceeds the amount
of such rental loss for the same period that Tenant proves could be
reasonably avoided, that portion of the leasing commission paid by
Landlord and applicable to the unexpired term of this Lease. Unpaid
installments of rent or other sums shall bear interest from the
date due at the rate of ten (10%) per cent per annum. In the event
Tenant shall have abandoned the Premises, Landlord shall have the
option of (a) taking possession of the Premises and recovering from
Tenant the amount specified in this paragraph, or (b) proceeding
under the provisions of the following Article 24.B.
B. Maintain Tenant's right to possession, in which case this Lease
shall continue in effect whether or not Tenant shall have abandoned
the Premises. In such event Landlord shall be entitled to enforce
all of Landlord's right and remedies under this Lease, including
the right to recover the rent as it becomes due hereunder.
C. Pursue any other remedy now or hereafter available to Landlord
under the laws or judicial decision of the State in which the
Premises are located.
25. EMINENT DOMAIN If more than twenty-five (25%) per cent of the Premises
shall be taken or appropriated by any public or quasi-public authority
under the power of eminent domain, either party hereto shall have the
right, at its option, to terminate this Lease, and Landlord shall be
entitled to any and all income, rent, award or any interest therein
whatsoever which may be paid or made in connection with such public or
quasi-public use or purpose, and Tenant shall have no claim against
Landlord for the value of any unexpired term of this Lease. If either
less than or more than twenty-five (25%) per cent of the Premises is
taken, and neither party elects to terminate as herein provided, the
rental thereafter to be paid shall be equitably reduced. If any part of
the Building other than the Premises may be so taken or appropriated,
Landlord shall have the right at its option to terminate this Lease and
shall be entitled to the entire award as above provided. Notwithstanding
the foregoing, Tenant shall be entitled to that portion of any
condemnation award made specifically on account of Tenant's relocation
expenses, increased rental costs, improvements contracted at Tenant's
expense or disruption of Tenant's business.
10
26. OFFSET STATEMENT Tenant shall at any time and from time to time upon not
less than ten (10) days prior written notice from Landlord execute,
acknowledge and deliver to Landlord a statement in writing (a) 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 date to
which the rental and other charges are paid in advance, if any, and (b)
acknowledging that there are not, to Tenant's knowledge, any uncured
defaults on the part of the Landlord hereunder or specifying such
defaults if any are claimed. Any such statement may be relied upon by any
prospective purchaser or encumbrancer of all or any portion of the real
property of which the Premises are a part.
27. PARKING Tenant shall have the right to use in common with other tenants
or occupants of the Building the parking facilities of the Building.
28. AUTHORITY OF PARTIES
A. Corporate Authority. If Tenant is a corporation, each individual
executing this Lease on behalf of said corporation represents and
warrants that he is duly authorized to execute and deliver this
Lease on behalf of said corporation, in accordance with a duly
adopted resolution of the board of directors of said corporation or
in accordance with the by-laws of said corporation, and that this
Lease is binding upon said corporation in accordance with its
terms.
B. Limited Partnerships. If the Landlord herein is a limited
partnership, it is understood and agreed that any claims by Tenant
on Landlord shall be limited to the assets of the limited
partnership, and furthermore, Tenant expressly waives any and all
rights to proceed against the individual partners or the officers,
directors or shareholders of any corporate partner, except to the
extent of their interest in said limited partnership.
29. GENERAL PROVISIONS
(i) Plats and Riders. Clauses, plats and riders, if any, signed by
the Landlord and the Tenant and endorsed on or affixed to this
Lease are a part hereof.
(ii) Waiver. The waiver by Landlord of any term, covenant or
condition herein contained shall not be deemed to be a waiver
of such term, covenant or condition on any subsequent breach
of the same or any other term, covenant or condition herein
contained. The subsequent acceptances of rent hereunder by
Landlord shall not be deemed to be a waiver of any preceding
breach by Tenant of any term, covenant or condition of this
Lease, other than the failure of the Tenant to pay the
particular rental so accepted, regardless of Landlord's
knowledge of such preceding breach at the time of the
acceptance of such rent.
(iii) Notices. All notices and demands which may or are to be
required or permitted to be given by either party to the other
hereunder shall be in writing. All notices and demands by the
Landlord to the Tenant shall be sent by United States Mail,
postage prepaid, addressed to the Tenant at 000 Xxxxx Xxxxxxx
Xxxxx, Xxx Xxxxxx, Xxxxxxxxxx 00000, or to such other places
as Tenant may from time to time designate in a notice to the
Landlord. All notices and demands by the Tenant to the
Landlord shall be sent by United States Mail, postage prepaid,
addressed to the Landlord at 000 Xxxxx Xxxxx Xxxx, Xxxxx 000,
Xxx Xxxxxx, Xxxxxxxxxx 00000, or to such other person or place
as the Landlord may from time to time designate in a notice to
the Tenant.
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(iv) Joint Obligation. If there be more than one Tenant the
obligations hereunder imposed upon Tenants shall be joint and
several.
(v) Marginal Headings. The marginal headings and titles to the
Articles of this Lease are not a part of this Lease and shall
have no effect upon the construction or interpretation of any
part hereof.
(vi) Time. Time is of the essence of this Lease and each and all of
its provisions in which performance is a factor.
(vii) Successors and Assigns. The covenants and conditions herein
contained, subject to the provisions as to assignment, apply
to and bind the heirs, successors, executors, administrators
and assigns of the parties hereto.
(viii) Recordation. Neither Landlord nor Tenant shall record this
Lease or a short form memorandum hereof without the prior
written consent of the other party.
(ix) Quiet Possession. Upon Tenant paying the rent reserved
hereunder and observing and performing all of the covenants,
conditions and provisions on Tenant's part to be observed and
performed hereunder, Tenant shall have quiet possession of the
Premises for the entire term hereof, subject to all the
provisions of this Lease.
(x) Late Charges. Tenant hereby acknowledges that late payment by
Tenant to Landlord of rent or other sums due hereunder will
cause Landlord to incur costs not contemplated by this Lease,
the exact amount of which will be extremely difficult to
ascertain. Such costs include, but are not limited to,
processing and accounting charges, and late charges which may
be imposed upon Landlord by terms of any mortgage or trust
deed covering the Premises. Accordingly, if any installment of
rent or of a sum due from Tenant shall not be received by
Landlord or Landlord's designee within ten (10) days after
said amount is past due, then Tenant shall pay to Landlord a
late charge equal to ten (10%) per cent of such overdue
amount. The parties hereby agree that such late charges
represent a fair and reasonable estimate of the cost that
Landlord will incur by reason of the late payment by Tenant.
Acceptance of such late charges by Landlord shall in no event
constitute a waiver of Tenant's default with respect to such
overdue amount, nor prevent Landlord from exercising any of
the other rights and remedies granted hereunder.
(xi) Prior Agreements. This Lease contains all of the agreements of
the parties hereto with respect to any matter covered or
mentioned in this Lease, and no prior agreements or
understanding pertaining to any such matters shall be
effective for any purpose. No provision of this Lease may be
amended or added to except by an agreement in writing signed
by the parties hereto or their respective successors in
interest. This Lease shall not be effective or binding on any
party until fully executed by both parties hereto.
(xii) Inability to Perform. This Lease and the obligations of the
Tenant hereunder shall not be affected or impaired because the
Landlord is unable to fulfill any of its obligations hereunder
or is delayed in doing so, if such inability or delay is
caused by reason of strike, labor troubles, acts of God, or
any other cause beyond the reasonable control of the Landlord.
12
(xiii) Attorney's Fees. In the event of any action or proceeding
brought by either party against the other under this Lease the
prevailing party shall be entitled to recover all costs and
expenses including the fees of its attorneys in such action or
proceeding in such amount as the court may adjudge reasonable
as attorney's fees.
(xiv) Sale of Premises by Landlord. In the event of any sale of the
Building, Landlord shall be and is hereby entirely freed and
relieved of all liability under any and all of its covenants
and obligations contained in or derived from this Lease
arising out of any act, occurrence or omission occurring after
the consummation of such sale; and the purchaser, at such sale
or any subsequent sale of the Premises shall be deemed,
without any further agreement between the parties or their
successors in interest or between the parties and any such
purchaser to have assumed and agreed to carry out any and all
of the covenants and obligations of the Landlord under this
Lease.
(xv) Subordination Attornment. Upon request of the Landlord, Tenant
will in writing subordinate its rights hereunder to the lien
of any first mortgage, or first deed of trust to any bank,
insurance company or other lending institution, now or
hereafter in force against the land and Building of which the
Premises are a part, and upon any buildings hereafter placed
upon the land of which the Premises are a part, and to all
advances made or hereafter to be made upon the security
thereof.
Notwithstanding such subordination, neither Tenant's right to
quiet possession of the Premises nor this Lease shall be
disturbed or affected if Tenant is not in default hereunder
and so long as Tenant shall pay the rent and observe and
perform all of the provisions of this Lease, unless this Lease
is otherwise terminated pursuant to its terms.
(xvi) In the event any proceedings are brought for foreclosure, or
in the event of the exercise of power of sale under any
mortgage or deed of trust made by the Landlord covering the
Premises, the Tenant shall attorn to the purchaser upon any
such foreclosure or sale and recognize such purchaser as the
Landlord under this Lease.
(xvii) Name.Tenant shall not use the name of the Building or of the
development in which the Building is situated for any purpose
other than as an address of the business to be conducted by
the Tenant in the Premises.
(xviii) Separability. Any provision of this Lease which shall prove to
be invalid, void or illegal shall in no way effect, impair or
invalidate any other provision hereof and such other provision
shall remain in full force and effect.
(xix) Cumulative Remedies. No remedy or election hereunder shall be
deemed exclusive but shall, wherever possible, be cumulative
with all other remedies at law or in equity.
(xx) Choice of Law. This Lease shall be governed by the laws of the
State in which the Premises are located.
(xxi) Signs and Auctions. Tenant shall not place any sign upon the
Premises or Building or conduct any auction thereon without
Landlord's prior written consent.
30. BROKERS Tenant warrants that it has had no dealings with any real estate
broker or agents in connection with the negotiation of this Lease and it
knows no real estate broker or agent who is entitled to a commission in
connection with this Lease.
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31. PREVIOUS LEASE NULL AND VOID As of July 1, 1993, the previous Lease
between Fair, Xxxxx and Company, Incorporated and Regency Center, dated
December 15, 1988 which expires April 30, 1994, is effectively null and
void and this Lease supersedes all provisions contained therein. However,
Tenant will owe the present value of the unamortized tenant improvements
for the months of November 1993 through April 1994 in the amount of
$23,089.98. Tenant shall receive a rental credit for the months of July
1993 through October 1993 at the rate of $3,367.83 per month for a total
rental credit of $13,471.32. The balance owed which shall be paid in a
lump sum at the time of lease execution is $9,618.66 ($23,089.98 -
$13,471.32).
The Xxxxxx and Xxx Xxxx Fair, Xxxxx and Company,
Revocable Trust Incorporated
By: Xxxxxx Xxxx By: Xxxxxx X. Xxxxxxxxx
----------------------------- ------------------------------
Xxxxxx Xxxx
Its: Its: EVP, Chief Operating Officer
----------------------------- ------------------------------
By: Xxx Xxxx Date: November 24, 1993
----------------------------- ------------------------------
Xxx Xxxx
Its:
----------------------------- ------------------------------
Date:
----------------------------- ------------------------------
14
RULES AND REGULATIONS
1. No sign, placard, picture, advertisement, name or placard shall be
inscribed, displayed or printed or affixed on or to any part of the
outside or inside of the Building without the written consent of the
Landlord first had and obtained and Landlord shall have the right to
remove any such sign, placard, picture, advertisement, name or notice
without notice to and at the expense of Tenant.
All approved signs or lettering on doors shall be printed, painted,
affixed or inscribed at the expense of Tenant by a person approved of by
Landlord.
Tenant shall not place anything or allow anything to be placed near the
glass of any window, door, partition or wall which may appear unsightly
from outside the Premises; provided, however, that Landlord may furnish
and install a Building standard window covering at all exterior windows.
Tenant shall not without prior written consent of Landlord cause or
otherwise sunscreen any window.
2. The sidewalks, halls, passages, exits, entrances, elevators and stairways
shall not be obstructed by any of the tenants or used by them for any
purpose other than for ingress and egress from their respective Premises.
3. Tenant shall not alter any lock or install any new or additional locks
without permission of Landlord, whose consent shall not be unreasonably
withheld, or any bolts on any doors or windows of the Premises.
4. The toilet rooms, urinals, wash bowls and other apparatus shall not be
used for any purpose other than that for which they were constructed and
no foreign substance of any kind whatsoever shall be thrown therein and
the expense of any breakage, stoppage, damage resulting from the
violation of this rule shall be borne by the Tenant who, or whose
employees or invitees shall have caused it.
5. Tenant shall not overload the floor of the Premises or in any way deface
the Premises or any part thereof.
6. No furniture, freight or equipment of any kind shall be brought into the
Building without the prior notice to Landlord and all moving of the same
into or out of the Building shall be done at such time and in such manner
as Landlord shall designate. Notwithstanding the above, Tenant shall have
the right to move furniture, freight or equipment into and out of the
building without prior notice to Landlord, provided that such moves do
not involve exclusive use of an elevator for an extended period of time,
nor does the move interfere with the operation of other tenants in the
building. Landlord shall have the right to prescribe the weight, size and
position of all safes and other heavy equipment brought into the Building
and also the times and manner of moving the same in and out of the
Building. Safes or other heavy objects shall, if considered necessary by
Landlord, stand on supports of such thickness as is necessary to properly
distribute the weight. Landlord will not be responsible for loss of or
damage to any such safe or properly from any cause and all damage done to
the Building by moving or maintaining any such safe or other property
shall be repaired at the expense of the Tenant.
7. Tenant shall not use, keep or permit to be used or kept any foul or
noxious gas or substance in the Premises, or permit or suffer the
Premises to be occupied or used in a manner offensive or objectionable to
the Landlord or other occupants of the Building by reason of noise, odors
and/or vibrations, or interfere in any way with other tenants or those
having
2
business therein, nor shall any animals or birds be brought in or kept in
or about the Premises or the Building.
8. No cooking, except for microwave and coffee machines, shall be done or
permitted by any Tenant on the Premises, nor shall the Premises be used
for the storage of merchandise, for washing clothes, for lodging, or for
any improper, objectionable or immoral purposes.
9. Tenant shall not use or keep in the Premises of the Building any
kerosene, gasoline or inflammable or combustible fluid or material, or
use any method of heating or air conditioning other than that supplied by
Landlord.
10. Landlord will direct electricians as to where and how telephone and
telegraph wires are to be introduced. No boring or cutting for wires will
be allowed without the consent of the Landlord. The location of
telephones, call boxes and other office equipment affixed to the Premises
shall be subject to the approval of Landlord which shall not be
unreasonably withheld.
11. On Saturdays, Sundays and legal holidays, and on other days between the
hours of 6:00 p.m. and 8:00 a.m. the following day, access to the
Building, or to the halls, corridors, elevators or stairways in the
Building, or to the Premises may be refused unless the person seeking
access is known to the person or employee of the Building in charge and
has a pass or is properly identified. The Landlord shall in no case be
liable for damages for any error with regard to the admission to or
exclusion from the Building of any person. In case of invasion, mob,
riot, public excitement, or other commotion, the Landlord reserves the
right to prevent access to the Building during the continuance of the
same by closing of the doors or otherwise, for the safety of the tenants
and protection of property in the Building and the Building.
12. Landlord reserves the right to exclude or expel from the Building any
person who, in the judgment of Landlord, is intoxicated or under the
influence of liquor or drugs, or who shall in any manner do any act in
violation of any of the rules and regulations of the Building.
13. No vending machine or machines of any description shall be installed,
maintained or operated upon the Premises without the written consent of
the Landlord which shall not be unreasonably withheld.
14. Landlord shall have the right, exercisable without notice and without
liability to Tenant, to change the name and street address of the
Building of which the Premises are a part.
15. Tenant shall not disturb, solicit, or canvass any occupant of the
Building and shall cooperate to prevent same.
16. Without the written consent of Landlord, Tenant shall not use the name of
the Building in connection with or in promoting or advertising the
business of Tenant except as Tenant's address.
3
17. Landlord shall have the right to control and operate the public portions
of the Building, and the public facilities, and heating and air
conditioning, as well as facilities furnished for the common use of the
tenants, in such manner as it deems best for the benefit of the tenants
generally.
18. All entrance doors in the Premises shall be left locked when the Premises
are not in use, and all doors opening to public corridors shall be kept
closed except for normal ingress and egress from the Premises unless
suite entry doors are controlled by UL and municipally approved hold-open
devices which are connected to building life safety systems.
4
FIRST ADDENDUM TO LEASE
BY AND BETWEEN
THE XXXXXX AND XXX XXXX REVOCABLE TRUST, LANDLORD
AND
FAIR, XXXXX AND COMPANY, INCORPORATED, TENANT
DATED JULY 1, 1993
1. OPERATING EXPENSE ADJUSTMENTS (Continued from Article 7 of the Lease.)
A. During the initial term of this Lease, management costs for the
building shall not exceed three percent (3%) of the gross rental
income for the building.
B. Landlord shall keep full, accurate and separate books of account
and records covering all Direct Expenses, which books of accounts
and records shall accurately reflect the total Direct Expenses and
Landlord's xxxxxxxx to Tenant for Operating Expense Adjustments.
C. Tenant shall have the right to protest any charge to Tenant by
Landlord for Operating Expense Adjustments, provided that said
protest is made within thirty (30) days after receipt of Landlord's
notice of such charge. In the event that Tenant shall protest,
Tenant shall be entitled to audit Landlord's books of account,
records and other pertinent data regarding Direct Expenses. The
audit shall be limited to the determination of direct Expenses and
charges to Tenant for Operating Expense Adjustments and shall be
conducted during normal business hours. If the audit shows that
there has been an overpayment by Tenant, the overpayment shall be
immediately due and repayable by Landlord to Tenant.
2. OPTION TO EXTEND
A. Landlord grants to Tenant the option to extend the term of this
Lease for two 3-year periods commencing when the prior term expires
upon each and all of the following terms and conditions:
(i) Tenant gives to Landlord and Landlord receives notice of
the exercise of the option to extend this Lease for said
additional term no later than twelve (12) months prior to
the time that the option period would commence if the
option were exercised, time being of the essence. If said
notification of the exercise of said option is not so given
and received, this option shall automatically expire;
(ii) At the time said written notification of exercise of option
is given and received, Tenant shall not be in default under
any of the material obligations of this Lease to be
performed by Tenant and this Lease shall not have
previously terminated nor terminated prior to the
commencement of the option term;
(iii) All of the terms and conditions of this Lease except where
specifically modified by this option shall apply;
(iv) The monthly rent for each month of the option period shall
be calculated as follows:
The rent payable by Tenant during the first option period
shall be the Fair Market Rental Value of the Premises (as
defined below) at the commencement date of the option
period. There shall be an annual C.P.I. increase not to
exceed
1
four percent (4%) in each subsequent year of the first
option period. The rent in the first year of the second
option period shall be the rent in the last year of the
first option period to which will be added a C.P.I.
increase not to exceed four percent (4%). There shall be an
annual C.P.I. increase not to exceed four percent (4%) in
each subsequent year of the second option period. All of
the C.P.I. increases during the option periods shall be
calculated on the basis of the formula provided in the
Lease P.5.B.
If Landlord and Tenant cannot agree on the Fair Market
Rental Value of the Premises for the extension periods
within forty-five (45) days after the Tenant has notified
Landlord of its exercise of the option, Landlord and Tenant
shall each select, within forty-five (45) days of such
notification, an appraiser who must be a qualified M.A.I.
appraiser to determine said Fair Market Rental Value. If
one party fails to so designate an appraiser within the
time required, the determination of Fair Market Rental
Value of the one appraiser who has been designated by the
other party hereto within the time required shall be
binding upon both parties. The appraisers shall submit
their determinations of Fair Market Rental Value to both
parties within thirty (30) days after their selection. If
the difference between the two determinations is ten
percent (10%) or less of the higher appraisal, then the
average between the two determinations shall be the Fair
Market Rental Value of the Premises. If said difference is
greater than ten percent (10%), then the two appraisers
shall within twenty (20) days of the date that the later
submittal is submitted to the parties designate a third
appraiser who must also be a qualified M.A.I. appraiser.
The sole responsibility of the third appraiser will be to
determine which of the determinations made by the first
appraisers is most accurate. The third appraiser shall have
no right to propose a middle ground or any modification of
either of the determinations made by the first two
appraisers. The third appraiser's choice shall be submitted
to the parties within thirty (30) days after his or her
selection. Such determination shall bind both of the
parties and shall establish the Fair Market Rental Value of
the Premises. Each party shall pay for their own appraiser
and shall pay an equal share of the fees and expenses of
the third appraiser.
Fair Market Rental Value for purpose of this Lease shall
mean the then prevailing rent for premises comparable in
size, quality, and orientation to the demised Premises,
located in buildings comparable in size to, and in the
general vicinity of, the building which the demised
Premises are located, leased on terms comparable to the
terms contained in this Lease.
3. RIGHT OF FIRST OPPORTUNITY TO LEASE ADDITIONAL PREMISES AT 100 XXXXX
RANCH ROAD, SAN XXXXXX
At any time during the term hereof, or any options to extend which Tenant
has exercised, provided that Tenant is not in default as defined herein,
Tenant shall have a right of first opportunity to lease for all office
space that becomes available for lease at 000 Xxxxx Xxxxx Xxxx, Xxx
Xxxxxx, based on the terms and conditions as outlined below.
Landlord and Tenant acknowledge that there are existing tenants at 000
Xxxxx Xxxxx Xxxx, which tenants have options to renew or who wish to
renew their respective leases, and that these existing options and
requests to renew would take precedent over the first opportunity to
lease described herein.
2
Landlord and Tenant further acknowledge that this right of first
opportunity to lease shall apply only to premises, from which existing
tenants vacate or which is currently vacant.
Landlord shall notify Tenant in writing of the availability of additional
office premises at 000 Xxxxx Xxxxx Xxxx, Xxx Xxxxxx within 30 days of
Landlord receiving notice from an existing Tenant at 000 Xxxxx Xxxxx Xxxx
of that Tenant's intent to vacate their premises. Landlord's notice to
Tenant shall include the size of premises, the projected date at which
the premises may be available, and a floor plan indicating the current
configuration of the premises.
Tenant shall have 30 days after receipt of notice from Landlord to notify
Landlord of Tenant's intent to lease the premises which was the subject
of the notice. In the event Landlord does not receive notice from Tenant
of Tenant's intent to lease said available space, Landlord shall have the
right to lease said space to any other Tenant which Landlord chooses, and
Tenant's right of first opportunity to lease that specific premises shall
be deemed waived.
In the event Tenant notifies Landlord of its intent to lease said
premises, Landlord and Tenant shall proceed as soon as is reasonably
possible to execute a lease agreement for the specific premises that
became available. Terms and conditions of the Lease shall be based on the
same terms and conditions of the Lease(s) on the other space Tenant
occupies in the Building at the time the Lease is executed. Landlord and
Tenant shall make a good faith effort to execute a Lease for the specific
available space within 30 days after Tenant has notified Landlord of its
intent to lease said space.
This right of first opportunity to lease shall in no way limit the
Landlord from executing leases with new tenants for terms of any length,
with options to renew for any length, for those spaces for which Tenant
has not exercised its right of first opportunity to lease as defined
herein.
4. TENANT IMPROVEMENT WORK
There shall be no tenant improvement allowance provided. The space, which
is already in Tenant's possession, shall be taken in as is condition.
5. SERVICES AND UTILITIES
A. Provided that Tenant is not in default hereunder, Landlord agrees
to furnish to the Premises five-day per week janitorial service.
Landlord shall also maintain and keep lighted, heated and air
conditioned during reasonable hours of generally recognized
business days, the common entries, common corridors, common stairs
and toilet rooms in the building of which Premises are a part.
Landlord shall not be liable for, and Tenant shall not be entitled
to, any reduction of rental by reason of Landlord's failure to
furnish any of the foregoing when such failure is caused by
accident, breakage, repairs, strikes, lockouts or other labor
disturbances or labor disputes of any character, or by any other
cause, similar or dissimilar, beyond the reasonable control of
Landlord. Landlord shall not be liable under any circumstances for
a loss of or injury to property, however occurring, through or in
connection with or incidental to failure to furnish any of the
foregoing.
B. Tenant shall have 24-hour per day, seven-day per week access to its
Premises.
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C. Landlord shall provide Tenant a monthly allowance of $1,359.50
(13,595 useable square feet x $.10) for Tenant's electrical
service. This allowance is included in the Base Rent as defined in
Article 5 of the Lease .
4
Landlord and Tenant recognize that Tenant's electrical service
shall cost in excess of $.10 per square foot per month due to
Tenant's use of machines requiring 220 Volt service in Tenant's
computer room, Tenant's separate air conditioning unit for computer
room, and Tenant's heavy electrical requirements.
Landlord's electrical engineer shall provide an estimate of
Tenant's electrical usage which shall include the heating and air
conditioning system for Tenant's premises, the separate heating and
air conditioning system for Tenant's computer room, the special
power required for Tenant's computer room, and power required for
the balance of Tenant's premises.
Electrical engineer's estimate shall be based on a computation of
Tenant's electrical equipment and special heating and air
conditioning requirements, the amount of amps required by Tenant's
use of the premises and the building kilowatt charge from Pacific
Gas and Electric.
Electrical engineer shall document his calculations and shall
submit these calculations to Tenant for Tenant's review. In the
event Tenant questions any of the variables used in engineer's
estimate, the Tenant shall submit information to the electrical
engineer sufficient to establish Tenant's electrical use at
premises. Electrical engineer, Tenant and Landlord shall then agree
upon correct data to be used in computation of Tenant's electrical
usage and electrical engineer, if necessary, shall submit new
calculations for Tenant's electrical use.
Landlord shall xxxx Tenant monthly for this excess electrical
usage. After the first year of Tenant's occupancy, or sooner should
Landlord or Tenant require it, electrical engineer shall
recalculate the estimate of Tenant's electrical usage to determine
the monthly charge for the following year. At this time, any excess
payments made by Tenant during the preceding year would be
refunded, or any shortfalls for the preceding year would be paid by
Tenant.
D. The hours of operation of the heating and air conditioning system
for the building are as follows:
Monday thru Friday: 7:00 a.m. to 6:00 p.m.
Saturdays: 8:00 a.m. to 3:00 p.m.
E. In the event Tenant requires the operation of the heating and air
conditioning system beyond the normal hours of operation for the
building, Tenant shall notify the building manager in advance of
the required extended hour usage, and the building manager shall
program the heating and air conditioning system to operate during
the time period requested by Tenant.
F. In the event Tenant shall request that an override mechanism be
installed during the term of the Lease, an override mechanism shall
be installed on the heating and air conditioning system which
services Tenant's premises. The cost of this mechanism shall be
paid by the Tenant at the time of the installation. This mechanism
shall allow Tenant to have control of the heating and air
conditioning system for its premises in hours other than the normal
building hours stated above.
Along with the override mechanism, an hourly meter shall be
attached to the override mechanism which shall measure Tenant's use
of the heating and air conditioning system beyond the normal
building hours. On a monthly basis, Landlord shall charge Tenant
for this usage by multiplying the number of hours used by the per
hour charge
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for operating the heating and air conditioning system which shall
be determined by Landlord's electrical engineer and heating and air
conditioning contractor.
6. COMMUNICATIONS INSTALLATION
Tenant has installed certain communications equipment on the roof of the
Building. Prior to the end of the term of this Lease, Tenant, at Tenant's
sole cost and expense, shall remove the communications equipment and
shall, forthwith and with all due diligence, repair any damage to the
Premises causes by such removal.
7. CONSENT
Landlord and Tenant agree that in the event their consent is required
pursuant to the provisions of the Lease, such consent shall not be
unreasonably withheld.
LANDLORD The Xxxxxx and Xxx Xxxx Revocable Trust
By: Xxxxxx Xxxx
------------------------------------
Xxxxxx Xxxx
Its:
------------------------------------
By: Xxx Xxxx
------------------------------------
Xxx Xxxx
Its:
------------------------------------
Date:
------------------------------------
TENANT Fair, Xxxxx and Company, Incorporated
By: Xxxxxx X. Xxxxxxxxx
------------------------------------
Its: EVP, Chief Operating Officer
------------------------------------
Date: November 24, 1993
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