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Exhibit 10(d)
XXXXXXXX-HOME TOWER GROUP
000 XXXX XXXXXX, XXXXX 000
(000) 000-0000
OFFICE BUILDING LEASE
1. PARTIES. This Lease, dated, for reference purposes only, JUNE 14, 1995, is
made by and between XXXXXXXX-XXXX TOWER GROUP (herein called "Landlord") and
FIRST COMMERCIAL BANK (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 hereby reference thereto made a part hereof,
said Premises being agreed, for the purpose of this Lease, to have an area of
approximately 3,499 square feet (SUITE 310 AT 2,777 XX. XX., XXXXX 000 XX 000
XX. FT.) and being situated on the THIRD floor of that certain Building known
as XXXX AVENUE TOWER, 000 XXXX XXXXXX, XXXXXXXXXX, XX 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
by it to be kept and performed and that this Lease is made upon the condition
of said performance.
3. TERM. The term of this Lease shall be for 5.75 years, commencing on the
1ST day of SEPTEMBER, 1995 and ending on the 31ST day of MAY, 2001.
4. POSSESSION.
4a. If the Landlord, for any reason whatsoever, cannot deliver possession
of the said Premises to the Tenant at the commencement of the term hereof, this
Lease shall not be void or voidable, nor shall Landlord be liable to Tenant for
any loss or damage resulting therefrom, nor shall the expiration date of the
above term be in any way extended, but in that event, all rent shall be abated
during the period between the commencement of said term and the time when
Landlord delivers possession.
4b. In the event that Landlord shall permit Tenant to occupy the Premises
prior to the commencement date of the term, such occupancy shall be subject to
all the provisions of this Lease. Said early possession shall not advance the
termination date hereinabove provided.
5. RENT. Tenant agrees to pay to Landlord as rental, without prior notice or
demand, for the Premises the sum of: FOUR THOUSAND SIX HUNDRED FIFTY-TWO
DOLLARS ($4,652.00) dollars, on or before the first day of the first full
calendar month of the term hereof and a like sum on or before the first day of
each and every successive calendar month thereafter during the term hereof,
except that the first month's rent shall be paid upon the execution hereof.
Rent for any period during the term hereof which is for less than one (1) month
shall be a prorated portion of the monthly installment herein, based upon a
thirty (30) day month. Said rental shall be paid to Landlord, without deduction
or offset in lawful money of the United States of America, which shall be legal
tender at the time of payment at the Office of the Building, or to such other
person or at such other place as Landlord may from time to time designate in
writing.
6. SECURITY DEPOSIT. Tenant has deposited with Landlord the sum of - WAIVED -
($ ) Dollars. 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, supply 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, or 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 funds, 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.
7. OPERATING EXPENSE ADJUSTMENTS. For the purposes of this Article, the
following terms are defined as follows:
Base Year: The calendar year in which this lease term commences (provided,
however, that the Base Year shall in no event be earlier than
the first full calendar year following the date of initial
occupancy by the first occupant of said Building).
Comparison Each calendar year of the term after the Base Year.
Year:
Direct All direct costs of operation and maintenance, as determined by
Expenses: standard accounting practices, and shall include 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, if any;
air-conditioning & heating; elevator maintenance; supplies;
materials; equipment; and tools, including 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 brokers' 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 25.5% 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 or 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 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 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
increases in Direct Expenses over the Base Year, less the total of the monthly
installments of estimated increases paid in the previous calendar year for
which comparison is then being made to the Base Year; and the estimated 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 rental payable by
Tenant shall in no event by less than the rent specified in Article 5
hereinabove.
(PAGE 1 - OFF. BLDG.) INITIAL _____ _____
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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.
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 or
injure or annoy them or use or allow the Premises to be usued 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, regulations or requirements 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 occupancy of the Premises, excluding
structural changes not related to or affected by Tenant's improvements or acts.
The judgment or 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 said Premises, or any part
thereof without the written consent of Landlord first had and obtained and any
alterations, additions or improvements to or at said Premises, including but
not limited to, wall covering, paneling 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 person selected by Tenant to make the same must first be approved of in
writing by the Landlord. Upon the expiration or sooner termination of the term
hereof, Tenant shall, upon written demand by Landlord, given at least thirty
(30) days prior to the end of the term, 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.
11a. 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 and 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 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.
11b. 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 under
any law, statute or ordinance now or hereafter in effect.
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 alterations in the Premises, to insure Landlord against any
liability for mechanics' and materialman'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, hypothecate 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 the written
consent of Landlord first had and obtained, which consent shall not be
unreasonably withheld, and a consent to one assignment, subletting, occupation
or use by any other person shall not be deemed to be a consent to any
subsequent assignment, subletting, occupation or use by another person. Any
such assignment or subletting without such consent shall be void, and shall, at
the option of the Landlord, constitute a default under this Lease.
14. HOLD HARMLESS. Tenant shall indemnify and hold harmless Landlord against
and from any and all claims arising from Tenant's use of the 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 of negligence of the Tenant, or any officer, agent, employee, guest, or
invitee of Tenant, and from all 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 be 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, 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 from any part of the Building or from the pipes,
appliances or plumbing works therein or from the roof, street or subsurface or
from any other place resulting from dampness or any other cause whatsoever,
unless caused by or due to the negligence of Landlord, its agents, servants or
employees. Landlord or its agents shall not be liable for interference with the
light or other incorporeal hereditaments, loss 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. As long as their respective insurers so permit, 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 a policy of comprehensive public
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. 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 liability insurance required herein or
certificates evidencing the existence and amounts of such insurance with loss
payable clauses satisfactory to Landlord. No policy shall be cancellable or
subject to reduction of coverage except after ten (10) days' prior written
notice to Landlord.
17. SERVICES AND UTILITIES. Provided that Tenant is not in default hereunder,
Landlord agrees to furnish to the Premises during reasonable hours of generally
recognized business days, to be determined by Landlord at his sole discretion,
and subject to the rules and regulations of the Building of which the Premises
are a part, electricity for normal lighting and fractional horsepower office
machines, heat and air conditioning required in Landlord's judgment for the
comfortable use and occupation of the Premises, and janitorial service.
Landlord shall also maintain and keep lighted the common stairs, common
entries and toilet rooms in the Building of which the 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 or any character, or by
any other cause, similar or dissimilar, beyond the reasonable control of
(PAGE 2 - OFF. BLDG.) INITIAL: ________
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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. Wherever heat generating
machines or equipment are used in the Premises which affect the temperature
otherwise maintained by the air conditioning system, Landlord reserves the
right to install supplementary air conditioning units in this Premises and the
cost thereof, including the cost of installation, and the cost of operation and
maintenance thereof shall be paid by Tenant to Landlord upon demand by Landlord.
Tenant will not, without written consent of Landlord, use any apparatus
or device in the Premises, including, but without limitation thereto,
electronic data processing machines, punch card machines, and machines using in
excess of 120 volts, which will in any way increase the amount of electricity
usually furnished or supplied for the use of the Premises as general office
space; nor connect with electric current except through existing electrical
outlets in the Premises, any apparatus or device, for the purpose of using
electric current. If Tenant shall require water or electric current in excess
of that usually furnished or supplied for the use of the Premises of general
office space, Tenant shall first procure the written consent of Landlord, which
Landlord may refuse, to the use thereof and Landlord may cause a water meter or
electrical current meter to be installed in the Premises, so as to measure the
amount of water and electric current consumed for any such use. The cost of any
such meters and of installation, maintenance and repair thereof shall be paid
for by the Tenant and Tenant agrees to pay to Landlord promptly upon demand
therefor by Landlord for all such water and electric current consumed as
shown by said meters, at the rates charged for such services by the local
public utility furnishing the same, plus any additional expenses incurred in
keeping account of the water and electric current to consumed, If a separate
meter is not installed, such excess cost for such water and electric current
will be established by an estimate made by a utility company or electrical
engineer.
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 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 to Tenant for the nonperformance of any said
rules by any other tenants or occupants.
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 as a
rental in the amount of _______________ plus all other charges payable
hereunder, and upon all the terms hereof applicable to a month to month tenancy.
(REFER TO PAGE 5 UNDER OPTIONS/RENT) INITIAL:__________ ________
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 Landlord shall have the right to use any
and all means which Landlord may deem proper to open said doors in an
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 forceable 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 to its employees, there shall be no abatement of rent.
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
and extended coverage insurance, then Landlord shall forthwith repair the same,
provided the extent of the destruction be less than ten (10%) per cent 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%) per cent 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 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 such said termination.
Notwithstanding anything to the contrary contained in this Article,
Landlord shall not have any obligation whatsoever to repair, reconstruct or
restore the Premises when the damage resulting from any casualty covered under
this Article 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 or replacements of any panels,
decoration, office fixtures, railings, floor covering, partitions, or any other
property installed in the Premises by Tenant.
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 one or more of the following events
shall constitute a default and breach of this Lease by Tenant.
23.a. The vacating or abandonment of the Premises by Tenant.
23.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 three (3) days after written notice
thereof by Landlord to Tenant.
23.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.
23.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 other 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 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:
24.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
Landlord by reason of Tenant's default including, but not limited to, the cost
of recovering possession of the Premises; expenses of reletting, including
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.
24.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
rights and remedies under this Lease, including the right to recover the rent
INITIAL:___________
___________
(PAGE 3 - OFF. BLDG.)
4
as it becomes due hereunder.
24.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 as its option to terminate this Lease and shall
be entitled to the entire award as above provided.
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, noting
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, if
any, subject to the monthly rates, rules and regulations, and any other charges
of Landlord for such parking facilities which may be established or altered by
Landlord at any time or from time to time during the term hereof.
28. AUTHORITY OF PARTIES.
28.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.
28.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 acceptance of rent
hereunder by Landlord shall not be deemed to be a waiver of any preceding
breach by Tenant of any term, covenant or condition of this Lease, other than
the failure of 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) Notice. 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 the Premises,
or to such other place 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 the
Office of the Building, or to such other person or place as the Landlord may
from time to time designate in a notice to the Tenant.
(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 Article 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 written
notice that 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 the 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.
(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.
In the event any proceedings are brought for foreclosure, or in the
event of the exercise of the 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.
The provisions of this Article to the contrary notwithstanding, and so
long as Tenant is not in default hereunder, this Lease shall remain in full
force and effect for the full term hereof.
(xvi) 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.
(xvii) Separability. Any provision of this Lease which shall prove to
be invalid, void or illegal shall in no way affect, impair or invalidate any
other provision hereof and such other provision shall remain in full force and
affect.
(xviii) 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.
(xix) Choice of Law. This Lease shall be governed by the laws of the
State in which the Premises are located.
(xx) 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.
(PAGE 4 - OFF. BLDG.) INITIAL:____________
5
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 excepting
only -NO EXCEPTIONS- and it knows of no other real estate broker of agent who
is entitled to a commission in connection with this Lease.
31. OPTION
TENANT SHALL HAVE THE OPTION TO EXTEND THE TERM OF THIS LEASE FOR 4 FIVE
YEAR TERMS UPON THE SAME TERMS AND CONDITIONS HEREIN CONTAINED EXCEPT THAT
THE RENT SHALL BE ADJUSTED AS HEREIN SET FORTH. WRITTEN NOTICE OF TENANT'S
INTENTION TO RENEW THIS LEASE SHALL BE GIVEN TO THE LANDLORD AT LEAST NINETY
(90) DAYS PRIOR TO THE EXPIRATION OF THIS LEASE AND ANY EXTENSION HEREUNDER.
32. ADJUSTMENT TO BASE RENT
ADJUSTMENT TO MINIMUM RENT PAYABLE HEREUNDER SHALL BE ADJUSTED THROUGHOUT
THE TERM, INCLUDING ANY EXTENSION, EVERY SIXTY (60) MONTHS. ADJUSTMENT SHALL
BE BASED ON CONSUMER PRICE INDEX: SAN FRANCISCO-OAKLAND, SAN XXXX CMSA (BASE
YEAR 1995 VS 1982-84 = 100), WITH A MAXIMUM SIXTY (60) MONTH INCREASE OF
TWENTY (20) PERCENT. NOTWITHSTANDING THE ABOVE PROVISION, THE RENT INCREASE
WILL NOT BE GREATER THAN THE PREVAILING MARKET RATE OF RENT AT THE TIME OF
RENEWAL OR TWENTY (20) PERCENT, WHICHEVER IS LESS.
33. TENANT IMPROVEMENTS
TENANT IMPROVEMENTS TO INCLUDE BUILDING AND CARPETS, AS APPROVED BY
LANDLORD, WILL BE PAID BY TENANT FOR SUITES 320 & 330. TENANT WILL REIMBURSE
THE COST OF RENOVATION OF SUITES 320 & 330 IN APRIL OF 1994 IN THE AMOUNT OF
$3,801.00.
34. COVERED PARKING
TWO COVERED SPACES ARE INCLUDED. AS IT BECOMES AVAILABLE ONE ADDITIONAL
SPACE AT A RATE OF $50.00 PER MONTH.
The parties hereto have executed this Lease at the place and on the dates
specified immediately adjacent to their respective signatures.
If this Lease has been filled in, it has been prepared for submission to
your attorney for his approval. No representation or recommendation is made by
the real estate broker or his agents or employees as to the legal sufficiency,
legal effect, or the consequences of this Lease or the transactions relating
thereto.
XXXXXXXX-XXXX TOWER GROUP
By XXXXXX X. XXXXX
XXXXXX X. XXXXX
Address 000 XXXX XXXXXX, XXXXX 000 By
XXXXXXXXXX, XX 00000 ----------------------------------
"LANDLORD"
FIRST COMMERCIAL BANK
By XXXXX X. XXXXXX INTERIM PRESIDENT
Address 0000 XXXXXXX XXXX XXX Xx
XXXXXXXXXX, XX 00000 -----------------------------------
"TENANT"
(PAGE 5-OFF BLDG.)
6
XXXXXXXX-XXXX TOWER GROUP
RULES AND REGULATIONS
1. No sign, placard, picture, advertisement, name or notice 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 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 by the 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 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
substances of any kind whatsoever shall be thrown therein and the expense of
any breakage, stoppage or 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. 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 property 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 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 either tenants or those having business therein, nor
shall any animals or birds be brought in or kept in or about the Premises of
the Building.
8. No cooking 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 or 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.
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 the 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 machines or machines of any description shall be installed,
maintained or operated upon the Premises without the written consent of the
Landlord.
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 at 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.
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, at
will 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.
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