EXHIBIT 10.4
LEASE BY AND BETWEEN NEWPORT PLACE ASSOCIATES
AND HOMELIFE REALTY SERVICES, INC. DATED
APRIL 12, 1990 FOR THE PROPERTY LOCATED AT
0000 XXXXXXX XXXXX, XXXXX 000, XXXXXXX XXXXX, XXXXXXXXXX 00000
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0000 XXXXXXX XXXXX
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LANDLORD:
NEWPORT PLACE ASSOCIATES,
A California Limited Partnership
TENANT:
HOMELIFE REALTY SERVICES, INC.,
A Delaware Corporation
DATE OF LEASE: April 12, 1990
OFFICE LEASE
In consideration of the rents and covenants hereinafter set forth, the Landlord
named in Article B of Section I hereby Leases to the Tenant named in Article C
of Section 1, and Tenant hereby hires from Landlord, the Demised Premises
described in Article F of Section I of this Lease upon the conditions set forth
below, and it is agreed that each of the terms, covenants, provisions and
agreements hereinafter specified shall be a condition.
SECTION I-LEASE TERMS
ARTICLE
A. Date of Lease: April 12, 1990
B. Landlord: Newport Place Associates, a California Limited Partnership
C. Tenant: HomeLife Realty Services, Inc., a Delaware Corporation
D. Trade Name (if any):
E. Guarantor (if any):
F. Demised Premises (Section 11, Article 1): Xxxxx 000, encompassing
approximately 2,605 rentable square feet on the seventh floor in the building
and parcel of Land ("Building") known as 0000 Xxxxxxx Xxxxx more particularly
described in Exhibit C and Located in the City of Newport Beach, State of
California.
G. Lease Term (Section 11, Article 1): Thirty-six (36) months. Commencement
Date: July 1, 1990 Expiration Date: June 30, 1993
H. Base Annual Rent (Section ii, Article 1):
Monthly Installments:
Periodic Rent Increase Date: See Section II, Article 38
I. Use of Premises (Section 11, Article 2): General office.
J. Address for Notice to Landlord (Section 11, Article 27):
Newport Place Associates, c/o McLachlan Investment
Company
0000 XxxXxxxxx Xxxxxxxxx Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
K. Base Taxes and Operating Costs Amount (Section II, Article 28): See Section
II, Article 39.
L. Number of Parking Spaces (Section 11, Article 1): 10
M. Tenant's Share of Any Increase Over Base Taxes and Operating Costs Amount
(Section II, Article 28): 1.38%, Rentable Area of Building: 189,031; Rentable
Area of Demised Premises: 2,605.
N. Security Deposit (Section 11, Article 30): $5,860.00
0. Broker(s) (Section II, Article 35): Broker(s) (Section 11,
Article 35):
Coldwell Xxxxxx - Xxxxx
Address: 0000 XxxXxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx, XX 00000
License No.:________________________
Cooperating Broker:____________________
Address:_______________________________
TABLE OF CONTENTS
Article Page
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1. Demised Premises, Term, Rent, Late Charges............................4
2. Occupancy.............................................................5
3. Assignment, Mortgage, Subletting......................................5
4. Alternations..........................................................6
5. Repairs ..............................................................6
6. Requirements of Law, Insurance........................................7
7. Subordination, Ground Leases, Mortgages...............................7
8. Rules and Regulations.................................................8
9. Liability and Indemnification.........................................8
10. Damage or Destruction and Mutual Waiver of Subrogation................9
11. Eminent Domain........................................................9
12. Services..............................................................9
13. Access to Premises...................................................10
14. Tenant's Insurance...................................................10
15. Certificates of Occupancy............................................11
16. Life-Safety Systems..................................................11
17. Bankruptcy...........................................................11
18. Default ....................................................12
19. Fees and Expenses....................................................13
20. No Representatives by Landlord.......................................13
21. End of Term..........................................................13
22. Quite Possession.....................................................13
23. Landlord's Work and Failure to Give Possession.......................14
24. Termination, No Waiver, No Oral Change...............................14
25. Waiver of Trial by Jury..............................................14
26. Inability of Perform.................................................14
27. Bills and Notices....................................................15
28. Increase of Taxes and Operating Costs................................15
29. Food, Beverages and Odors............................................16
30. Security.............................................................17
31. Care of Floor and Window Coverings...................................17
32. Marginal Notes.......................................................17
33. Definitions..........................................................17
34. Landlord's Approval..................................................17
35. Brokerage............................................................17
36. Binding Effect.......................................................17
37. Miscellaneous........................................................17
Exhibit A -Floor Plan
Exhibit B -Work Letter and Construction Agreement
Exhibit C -Legal Description
Exhibit D -Rules and Regulations
GENERAL LEASE PROVISIONS
DEMISED PREMISES, TERM, RENT, LATE CHARGES
DEMISED PREMISES
1.1 Upon and subject to the terms, covenants and conditions hereinafter
set forth, Landlord hereby Leases to Tenant and Tenant hereby hires from
Landlord the Demised Premises comprising the area substantially as shown on the
floor plan or plans that have been signed by Landlord and Tenant and that are
attached hereto as Exhibit A.
1.2 Tenant shall have the right, for the benefit of Tenant and its
employees, suppliers, shippers, customers and invitees, to the non-exclusive use
of all areas and facilities outside the Demised Premises and within the exterior
boundary Line of the Park that are provided and designed by Landlord from time
to time for the general non-exclusive use of Landlord, Tenant and the other
tenants of the Park and their respective employees, suppliers, shippers,
customers and invitees, including parking areas, Loading and unloading areas,
drives, walkways, roadways, trash areas and Landscaped areas (herein called
"Common Areas").
1.3 Tenant shall have the right for the benefit of Tenant and its
employees, customers and invitees, to the use of the number of Parking Spaces
specified in the Lease Terms on those portions of the Common Areas designated
for parking by Landlord from time to time. Such spaces shall be used by all
tenants of the Park on an unassigned basis.
1.4 Landlord shall, at all times during the term of this Lease, have
the sole and exclusive control of the parking facility. Landlord may at any time
and from time to time during the term hereof exclude and restrain any person
from use or occupancy thereof who is not a tenant or occupant of the Master
Premises or an invitee of a tenant or occupant. Landlord shall at all times have
the right and/or privilege of determining the nature and extent of the parking
facility, whether surface, underground or multiple deck, and of making such
changes therein as Landlord may at any time or from time to time deem desirable,
including the location and relocation of driveway entrances, exits, parking
spaces and the direction and flow of traffic.
1.5 Tenant acknowledges that the premises are part of a phased
master-planned development. As development progresses, Landlord may from time to
time relocate all or any portion of the parking facilities to within a
reasonable walking distance from the Master Premises. Subject to such charges as
Landlord may impose, if Landlord charges for parking, Tenant and Tenant's
invitees may use the parking facility on a nonexclusive, non-reserved basis
together with Landlord, other tenants and occupants of the Master Premises, and
their respective invitees. Tenant shall not cause or permit any obstruction to
the free and clear usage of the parking facility. Landlord shall have the right
to adopt and enforce rules and regulations for the parking facility. Landlord
may, in Landlord's absolute discretion, establish a system of parking charges.
Tenant shall observe and obey such rules and regulations as Landlord may adopt
in connection with any such system. Any governmental charges, surcharges, or
other monetary obligations which may be imposed in connection with parking
privileges appurtenant to this Lease or with the operation of the parking
facility shall be included as property taxes. Landlord shall have no Liability
to Tenant, nor shall Tenant's obligations under this Lease be in any way excused
or modified, if Tenant's parking privileges under this Lease or elsewhere in the
Master Premises are impaired by reason of any moratorium, initiative,
referendum, statute, regulation, or other governmental decree or action.
Term
1.6 The Demised Premises are teased for the Term to commence on the
Commencement Date and end on the Expiration Date, unless the Term shall
sooner terminate as hereinafter provided.
Rent
1.7 Tenant shall pay to Landlord during the term the Base Annual Rent,
which sum shall be payable by Tenant in equal consecutive Monthly Installments
on or before the first day of each month, in advance at the address specified
for Landlord in the Lease Terms, or such other place as Landlord shall
designate, without any prior demand therefor and without any abatement,
deduction or setoff whatsoever. If the Commencement Date should occur on a
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day other than the first day of a calendar month, or the Expiration Date should
occur on a day other than the last day of a calendar month, then the rental for
such fractional month shall be prorated on a daily basis based upon a thirty
(30) day calendar month. In addition to the Base Annual Rent, Tenant shall pay
the amount of any rental adjustments and additional payments as and when
hereinafter provided in this Lease.
LATE CHARGES
1.8 Tenant hereby acknowledges that Late payment by Tenant to Landlord
of rent and 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 on Landlord by the
terms of any mortgage or trust deed covering the Premises. Accordingly, if any
installment of rent, or any other sum due from Tenant, shall not be received
within 10 days after such amount shall be due, Tenant shall pay to Landlord, in
addition to the interest provided in Section 1.10, a late charge equal to ten
percent (10%) of such overdue amount. The parties agree that such late charge
represents a fair and reasonable estimate of the costs Landlord will incur by
reason of late payment by Tenant. Acceptance of such Late charge by Landlord
shall in no way constitute a waiver of Tenant's default with respect to such
overdue amount nor prevent Landlord from exercising any other right or remedy of
Landlord resulting from such late payment.
1.10 Notwithstanding any other provision of this Lease, any installment
of Base Annual Rent or additional charges not paid to Landlord when due
hereunder, shall bear interest from the date due or from the date of expenditure
by Landlord for the account of Tenant, until the same have been fully paid, at a
rate (the "Default Rate") that is equal to the Lesser of (i) two percent (2%)
above the rate of interest established by Bank of America N.T.&S.A. at its San
Francisco headquarters for 90-day unsecured Loans to corporate borrowers with
the highest credit standing, adjusted monthly on the first day of each month,
such adjustment to be effective for the following month, and (ii) the highest
rate permitted by Law. The payment of such interest shall not constitute a
waiver of any default by Tenant hereunder.
1.11 The Basic Annual Rent has been established in contemplation that
(i) Tenant will occupy the Demised Premises for the entire Term and (ii) in the
event of an assignment of the Lease, Landlord and Tenant have agreed that
Landlord shall have the rights provided in Section 3.3 to terminate the Lease in
Lieu of consenting to such assignment. Tenant expressly acknowledges and agrees
that this Section 1.11 was a material inducement to Landlord in establishing the
Base Annual Rent in the amount herein provided and that Landlord has relied on
this covenant and agreement in executing this Lease.
OCCUPANCY
2.1 Tenant shall use and occupy Demised Premises for the purpose set
forth in Article I of Section I and for no other purpose. The character of the
occupancy of Demised Premises, as restricted by this Article and as further
restricted by Articles 3 and 15 and any of the Rules and Regulations attached to
this Lease, or hereafter adopted, is an additional consideration and inducement
for the granting of this Lease.
2.2 The manner in which the Common Areas are maintained and operated
and the expenditures therefor shall be at the sole discretion of Landlord, and
the use of such areas and facilities shall be subject to such Rules and
Regulations, including without Limitation the provisions of any covenants,
conditions and restrictions affecting the Park, as Landlord shall make from time
to time. Landlord shall not be responsible for the nonperformance of any such
Rules and Regulations or covenants, conditions and restrictions by any other
tenant or occupant of the Park.
2.3 The purpose of the attached Exhibit A is only to show the
approximate Location of the Demised Premises in the Xxx Wing, and such Exhibit A
is not meant to constitute an agreement as to the specific Location of the
Common Areas or the elements thereof or of the access ways to the Demised
Premises or the Park. Landlord hereby reserves the right, at any time and from
time to time, to (a) make alterations in or additions to the Park and the Common
Areas, including without Limitation, constructing new buildings, changes in the
Location, size, shape and number of driveways, entrances, parking spaces,
parking areas, Loading and unloading areas, Landscaped areas and walkways, (b)
close temporarily any of the Common Areas for maintenance purposes as Long as
reasonable access to the Demised Premises remains available, (c) designate
property outside the Park to be part of the Common Areas, (d) use the Common
Areas while engaged in making alterations in or additions or repairs to the
Park, and (a) change
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the arrangement and Location of entrances or passageways, corridors, stairs,
toilets and other public parts of the Building. Tenant agrees that no diminution
of Light, air or view by any structure that may be erected in the Park after the
Lease Date shall entitle Tenant to any reduction of Base Annual Rent or result
in any liability of Landlord to Tenant.
2.4 Landlord reserves the right, from time to time, to grant such
easements, rights and dedications as Landlord deems necessary or desirable, and
to cause the recordation of parcel maps and covenants, conditions and
restrictions affecting the Park, as Long as such easements, rights, dedications,
maps and covenants, conditions and restrictions do not unreasonably interfere
with the use of the Demised Premises by Tenant. At Landlord's request, Tenant
shall join in the execution of any of the aforementioned documents. The Building
and the Park may be known by any name that Landlord may choose, which name may
be changed from time to time in Landlord's sole discretion.
2.5 The parking spaces to be provided to Tenant pursuant to Article L
of Section I shall be used for parking only by vehicles no larger than
full-sized passenger automobiles or pick-up trucks. Tenant shall not permit or
allow any vehicles that belong to or are controlled by Tenant or Tenant's
employees, suppliers, shippers, customers or invitees to be Loaded or parked in
areas other than those designated by Landlord for such activities. If Tenant
permits or allows any of the prohibited activities described in this Section
2.5, Landlord shall have the right, in addition to all other rights and remedies
that it may have under this lease, to remove or tow away the vehicle involved
without prior notice to Tenant and the cost thereof shall be paid to Landlord
within ten (10) days after notice from Landlord to Tenant.
ASSIGNMENT, MORTGAGE, SUBLETTING
3.1 Neither Tenant, nor Tenant's legal representatives, successors or
assigns, shall assign, mortgage or encumber this Lease or sublet use
occupy, or permit Demised Premises or any part thereof to be used or
occupied by others, and any assignment, mortgage, encumbrance, sublease
or permission shall be voidable, at the option of Landlord and, at the
further option of Landlord, shall terminate this Lease. If this Lease
be assigned, or if Demised Premises or any part thereof be sublet or
occupied by any party other than Tenant, Landlord may, after default by
Tenant, collect rent from the assignee, subtenant or occupant and apply
the net amount collect to the recent herein reserved, but no such
assignment, subletting, occupancy or collection shall deemed a waiver
of this covenant, or the acceptance of the assignee, subtenant or
occupant as Tenant, or a release of Tenant from the further performance
by Tenant of the obligations on the part of Tenant herein contained.
Any sale or other transfer, including transfer by consolidation, merger
or reorganization, of a majority of the voting stock of Tenant, if
Tenant is a corporation, or any sale or other transfer of a majority of
the partnership interests in Tenant, if Tenant is a partnership, shall
be an Assignment for purpose of this Article 3. As used in this Section
3.1, the term "Tenant" shall also mean any entity that has guaranteed
Tenant's obligations under this Lease, and the prohibition hereof shall
be applicable to any sales or transfers of the stock or partnership
interests of said guarantor.
3.2 Notwithstanding any contrary provision of the foregoing, but
subject to the last paragraph of this Article, Tenant may assign this Lease
upon the following express conditions:
A. That the proposed assignee shall be subject to the prior
written consent of Landlord, which consent will not be unreasonably withheld
but, without Limiting the generality of the foregoing, it shall be reasonable
for Landlord to deny such consent if:
(1) the use to be made of Demised Premises by the
proposed assignee is (a) not generally consistent with the character and
nature of all other tenancies in the Building, or (b) a use which conflicts
with any so-called "exclusive" then in favor of, or for any use which is the
same as that stated in any percentage Lease to, another tenant of the
Building or the Park, or (c) a use which would be prohibited by any other
portion of this Lease (including but not Limited to any Rules and Regulations
then in effect); or
(2) the character, moral stability, reputation and
financial responsibility of the proposed assignee are not satisfactory to
Landlord or in any event not at Least equal to those which were possessed by
Tenant as of the date of execution of this Lease;
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That Tenant shall pay to Landlord Landlord's then
standard processing fee and shall reimburse Landlord for all
reasonable attorney's fees incurred by Landlord in connection
therewith, the sum of which shall not exceed five thousand
dollars ($5,000), whether or not such proposed assignment is
consented to by Landlord;
C. That the proposed assignee shall execute an agreement
pursuant to which it shall be agreed to perform faithfully and be bound by all
of the terms, covenants, conditions, provisions and agreements of this Lease;
D. That an executed duplicate original of said assignment
and assumption agreement, on Landlord's then standard form, shall be
delivered to Landlord within five (5) days after the execution thereof, and
that such assignment shall not be binding upon Landlord until the delivery
thereof to Landlord and the execution and delivery of Landlord's consent
thereto; and
E. That the consent by Landlord to an assignment shall not
in any ways be construed to relieve Tenant or the assignee from obtaining the
express consent in writing of Landlord to any further assignment or to
release Tenant from any Liability whether past, present or future under this
Lease or to release Tenant from any Liability under this Lease because of
Landlord's failure to give notice of default under or in respect of any of
the terms, covenants, conditions, provisions or agreements of this Lease.
3.3 Notwithstanding the foregoing provisions of this Article 3, it
is expressly agreed and understood that Landlord shall have the option to
terminate this Lease rather than approve the assignment hereof. Tenant
understands and acknowledges that such option is a material inducement for
Landlord's agreeing to lease the Demised Premises to Tenant upon the terms
and conditions herein set forth.
ALTERATIONS
4.1 Tenant shall make no alterations, decorations, additions or
improvements in or to Demised Premises without Landlord's prior written
consent, and then only by contractors or mechanics approved in advance in
writing by Landlord and only upon such conditions as Landlord may impose.
Tenant shall submit such information as Landlord shall require, including,
without Limitation (i) plans and specifications, 00 evidence of insurance
coverage in such types and amounts and from such insurers as Landlord deems
satisfactory, and (M) all permits and Licenses required in connection with
such work. ALL such work shall be done at Tenant's sole cost and expense at
such times and in such manner as Landlord may from time to time designate.
ALL work done by Tenant shall be performed in full compliance with all Laws,
rules, orders, ordinances, directions, regulations and requirements of all
governmental agencies, offices, departments, bureaus and boards having
jurisdiction, and in full compliance with the rules, orders, directions,
regulations and requirements of the Insurance Services Office and of any
similar body. Before commencing any work, Tenant shall (a) give Landlord at
Least fifteen (15) days' written notice of the proposed commencement of such
work in order to give Landlord an opportunity to prepare, post and record
such notice as may be permitted by Law to protect Landlord from having its
interest in Demised Premises or the Building made subject to a mechanic's
Lien, and (b) shall secure, at Tenant's own cost and expense, a completion
and Lien indemnity bond, satisfactory to Landlord, for said work. Any
mechanic's Lien filed against Demised Premises or against the Building or the
Land upon which the Building is Located or any of the areas used in
connection with the operation of the Building for work claimed to have been
done for, or materials claimed to have been furnished to Tenant, shall be
discharged by Tenant, by bond or otherwise, within ten (10) days after the
filing thereof, at the cost and expense of Tenant. All alterations,
decorations, additions, or improvements upon Demised Premises, made by either
party, including without Limiting the generality of the foregoing, all
paneling, partitions, railings, mezzanine floors, galleries and the like,
shall, unless Landlord elects otherwise [which election shall be made by giving
a notice pursuant to the provisions of Article 27 not less than three (3) days
prior to the expiration or other termination of this Lease or any renewal or
extension thereof], become the property of Landlord, and shall remain upon,
and be surrendered with Demised Premises, as a part thereof, at the end of
the Term. If Tenant shall remove any property from Demised Premises, Tenant
shall repair or, at Landlord's option, shall pay to Landlord the cost of
repairing any damage arising from such removal. Tenant shall not install any
machine or equipment which causes noise, heat, cold or vibration to be
transmitted to the structure of the building without Landlord's prior written
consent, which consent may be conditioned on such terms as Landlord may
require.
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Repairs
5.1 Tenant shall take good care of Demised Premises and fixtures
therein and, subject to the provisions of Article 4 hereof, shall, except for
ordinary wear and tear, make all repairs in and about Demised Premises necessary
to preserve them in food order and condition, which repairs shall be in quality
and class equal to the original work. Landlord, however, shall repair the
Building plumbing, heating, ventilating or air conditioning and electrical
systems and make structural repairs within Demised Premises arising from
ordinary wear and tear or through causes over which Tenant has no control,
except as otherwise provided in this Lease. Landlord may repair, at the expense
of Tenant, all damage or injury to Demised Premises, or to the Building and
Landlord may repair, at the expense of Tenant, all damage or injury to Demised
Premises, or to the Building and its fixtures, appurtenances or equipment or to
any of the areas used in connection with the operation of the Building, done by
Tenant or Tenant's agents, servants, employees, contractors, visitors or
Licensees or caused by moving property of Tenant in or out of the Building, or
by installation or removal of furniture or other property, or resulting from
fire, heating, ventilating or air conditioning unit or system, short circuits,
overflow or Leakage of water, steam, gas, sewer gas, sewage or odors, or by
frost or by bursting or Leaking of pipes or plumbing works, or gas, or from any
other cause, due to the carelessness, negligence, or improper conduct of Tenant
or Tenant's agents, servants, employees, contractors, visitors or Licensees.
Landlord shall have the right to replace, at the expense of Tenant, any and all
plate and other glass damaged or broken from any cause whatsoever in or about
Demised Premises unless caused by or due to the sole negligence of Landlord,
Landlord's agents, servants or employees. Except as provided in Article 10
hereof, there shall be no allowance to Tenant for a diminution of rental value,
and no Liability on the part of Landlord by reason of inconvenience, annoyance
or injury to business arising from the making of, or the failure to make, any
repairs, alterations, decorations, additions or improvements in or to any
portion of the Building or any of the areas used in connection with the
operation thereof, or Demised Premises, or in or to fixtures, appurtenances or
equipment, or by reason of the act or neglect of Tenant or any other tenant or
occupant of the Building; and in no event shall Landlord be responsible for any
consequential damages arising or alleged to have arisen from any of the
foregoing matters except those arising as a result of Landlord's gross
negligence or willful misconduct. Tenant hereby waives all rights under the
provisions of Sections 1932, 1933, 1941 and 1942 of the Civil Code of the State
of California and all rights under any Law in existence during the Term of this
Lease authorizing a tenant to make repairs at the expense of a Landlord or to
terminate a Lease upon the complete or partial destruction of the teased
premises.
REQUIREMENTS OF LAW, INSURANCE
6.1 Tenant, at Tenant's expense, shall comply with all Laws, rules,
orders, ordinances, directions, regulations and requirements of federal,
state, county and municipal authorities pertaining to Tenant's use of Demised
Premises and with the recorded covenants, conditions and restrictions
affecting the Park, and with any direction of any public officer or officers,
pursuant to Law, which shall impose any duty upon Landlord or Tenant with
respect to the use or occupation of Demised Premises, and shall not do or
permit to be done, any act or thing upon Demised Premises, which will
invalidate or be in conflict with any insurance policy covering the Building
or any of the areas used in connection with the operation thereof or its
fixtures, appurtenances or equipment or the property located therein, and
shall not do or permit to be done, any act or thing upon Demised Premises,
which will invalidate or be in conflict with any insurance policy covering
the Building or any of the areas used in connection with the operation
thereof or its fixtures, appurtenances or equipment or the property Located
therein, and shall not do or permit to be done, any act or thing upon Demised
Premises which shall or might subject Landlord to any Liability or
responsibility for injury to any person or persons or to any property by
reason of any business or operation being carried on upon Demised Premises or
for any other reason, and Tenant hereby indemnifies Landlord against any such
Liability or responsibility. Tenant shall not place a Load upon any floor of
Demised Premises exceeding the floor Load per square foot area which such
floor was designed to carry and which is allowed by Law. Business machines
and mechanical equipment shall be placed and maintained by Tenant at Tenant's
expense in settings sufficient in Landlord's judgment to absorb and prevent
vibration, noise and annoyance.
INSURANCE
6.2 Tenant shall comply with all rules, orders, directions,
regulations and requirements of the Insurance Services Office or any other
similar body, and shall not do, or permit anything to be done, in or upon
Demised Premises, or bring or keep anything therein, which shall increase the
rates of any insurance on the Building or any
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of the areas used in connection with the operation thereof or its fixtures,
appurtenances or equipment or on property Located therein. If, by reason of
failure of Tenant to comply with the provisions of this Article, any
insurance rate shall at any time be higher than it otherwise would be, then
Tenant shall reimburse Landlord for that part of all such premiums thereafter
paid by Landlord which shall have been charged because of such violation by
Tenant, and shall make such reimbursement upon the first day of the month
following such outlay by Landlord. in any action or proceeding wherein
Landlord and Tenant are parties, a schedule or "make-up" of rate for the
Building or Demised Premises issued by the Insurance Services office, or
other body making insurance rates for the Building or Demised Premises, shall
be conclusive evidence of the facts therein stated and of the several items
and charges in the insurance rate then applicable to Demised Premises.
SUBORDINATION, GROUND LEASES, MORTGAGE
SUBORDINATION
7.1 This Lease is subject and subordinate to 0) all ground or
underlying Leases, mortgages and deeds of trust which now affect the real
property of which Demised Premises forms a part or affect the ground or
underlying Leases, (ii) all renewals, modifications, consolidations,
replacements and extensions thereof, and (M) any ground or underlying Leases,
mortgages, or deeds of trust which may hereafter affect the rest property of
which Demised Premises forms a part or affect the ground or underlying
Leases, without the necessity of executing any instrument to effectuate such
subordination. Notwithstanding the preceding sentence, Tenant, or Tenant's
successors- in- interest, wit( execute and deliver upon the demand of
Landlord any and all instruments desired by Landlord evidencing such
subordination in the manner requested by Landlord. Landlord is hereby
irrevocably appointed and authorized as agent and attorney-in-fact of Tenant
to execute and deliver all such subordination instruments in the event Tenant
fails to execute and deliver said instruments within five (5) days after
written request therefor.
GROUND LEASES
7.2 Tenant agrees that, at the option of the Landlord under any ground
lease now or hereafter affecting the real property of which Demised Premises
forms a part, Tenant shall attorn to said Landlord in the event of the
termination or cancellation of such ground lease and if requested by said
Landlord, enter into a new lease with said Landlord (or a successor ground
lessee designated by said Landlord) for the balance of the term then remaining
hereunder upon the same terms and conditions as those herein provided.
Mortgage
7.3 In the event of foreclosure or exercise of power of sale under any
mortgage or deed of trust now or hereafter affecting the real property of which
Demised Premises forms a part, the holder of any such mortgage or deed of trust
(or purchases at any sale pursuant thereto) shall have the option (I)
supplementing this Article, to require Tenant to attorn to such holder or
purchaser, an d to enter into a new lease with such holder or purchaser, and to
enter into a new lease with such holder or purchaser (as Landlord) for the
balance of the term then remaining hereunder upon the same terms and conditions
as those herein provided, or (ii) notwithstanding this Article, to elect that
this Lease become or remain, as the case may be, superior to said mortgage or
deed of trust.
7.4 Tenant shall, upon request by any such holder or purchaser, execute
and deliver any and all instruments desired by such holder or purchaser
evidencing the superiority of this Lease to any said mortgage or deed of trust.
7.5 In the event that Landlord or any such holder at any time requests
that this Article contains different language to the same general effect, Tenant
agrees to promptly execute and deliver an amendment of this Lease memorializing
the same.
RULES AND REGULATIONS
8.1 Tenant and Tenant's agents, servants, employees, contractors,
visitors and Licensees shall observe faithfully and comply strictly with the
rules and regulations attached hereto and made a part hereof, and such other
and further reasonable rules and regulations as Landlord or Landlord's agents
may from time to time adopt. Notice
6
of any additional rules or regulations shall be given in such manner as
Landlord may elect. Landlord shall not be liable to Tenant for violation of
any of said Rules and Regulations, or the breach of any term, covenant,
condition, provision or agreement in any Lease, by any other tenant or other
party in the Building or in the Park.
LIABILITY AND INDEMNIFICATION
9.1 Tenant agrees to indemnify Landlord against and save Landlord
harmless from any and all loss, cost, Liability, damage and expense, including,
without Limitation, penalties, fines and counsel fees, incurred in connection
with or arising from any cause whatsoever in, on or about the Demised Premises,
including, without Limiting the generality of the foregoing, (i) any default by
Tenant in the observance or performance of any of the terms, covenants or
conditions of this Lease on Tenant's part to be observed or performed, (H) the
use or occupancy, or manner of use or occupancy, of the Demised Premises by
Tenant or any person claiming through or under Tenant, or of the employees,
suppliers, shippers, customers or invitees of Tenant or any such other person,
in, on or about the Demised Premises, the Building or the Park, whether prior
to, during, or after the expiration of, the Term including, without (imitation,
any act, omission or negligence in the making or performing of any alterations.
Tenant further agrees to indemnify Landlord, Landlord's agents, and the Lessor
or Lessors under all ground or underlying Leases, against and hold them harmless
from any and all loss, cost, liability, damage and expense including, without
Limitation, counsel fees, incurred in connection with or arising from any claims
by any persons by reason of injury to persons or damage to property occasioned
by any use, occupancy, condition, occurrence, happening, act, omission or
negligence referred to in the preceding sentence.
9.2 Landlord shall not be responsible for or Liable to Tenant for any
Loss or damage that may be occasioned by or through the acts or omissions of
persons occupying adjoining premises or any part of the premises adjacent to or
connected with the Demised Premises or any part of the Building or Park or for
any Loss or damage resulting to Tenant or its property from burst, stopped or
Leaking water, gas, sewer or steam pipes or for any damage to or Loss of
property within the Demised Premises from any causes whatsoever, including
Latent defects in the Building, the Park, or Demised Premises or theft, except
for loss or damage caused by Landlord's gross negligence or willful misconduct.
9.3 Except where a longer or shorter period is specifically provided
for in this Lease for a particular expenditure, Tenant shall pay to Landlord,
within ten (10) days after delivery by Landlord to Tenant of bills or statements
therefor: (i) sums equal to all expenditures made and monetary obligations
incurred by Landlord including, without Limitation, expenditures made and
obligations incurred for reasonable counsel fees, in connection with the
remedying by Landlord of Tenant's defaults; (H) sums equal to all losses, costs,
liabilities, damages and expenses referred to in Section 9.1; and (iii) sums
equal to all expenditures made and monetary obligations incurred by Landlord,
including without Limitation, expenditures made and obligations incurred for
reasonable counsel fees, in collecting or attempting to collect the Base Annual
Rent, any additional charges or any other sum of money accruing under this Lease
or in enforcing or attempting to enforce any rights of Landlord under this Lease
or pursuant to law. Tenant's obligations under this Article 9 shall survive the
expiration or sooner termination of the Term.
DAMAGE OR DESTRUCTION AND MUTUAL WAIVER OF SUBROGATION
10.1 If Demised Premises shall be partially damaged by fire or other
cause without the fault or neglect of Tenant, Tenant's agents, servants,
employees, contractors, visitors or Licensees, the damages shall be repaired
by and at the expense of Landlord and the Base Annual Rent until such repairs
shall be made shall be apportioned according to the part of Demised Premises
which is tenantable or used by Tenant. If such partial damage is due to the
fault or neglect of Tenant or Tenant's agents, servants, employees,
contractors, visitors or Licensees, there shall be no apportionment or
abatement of Base Annual Rent, unless Landlord is reimbursed for such
abatement of Base Annual Rent or additional charges pursuant to any rental
insurance policies that Landlord may, in its sole discretion, elect to carry.
No Liability shall accrue for reasonable delay which may arise by reason of
adjustment of insurance on the part of Landlord or Tenant, for reasonable
delay on account of "Labor troubles," or any other cause beyond Landlord's
control. If Demised Premises are totally damaged or are rendered wholly
untenantable by fire or other cause, and Landlord shall decide not to restore
or rebuild the same, or if the Building shall, in Landlord's sole judgment,
be so damaged that Landlord shall decide to demolish it or to rebuild it,
then in any of such events Landlord may, within ninety (90) days after such
fire or other cause, give Tenant notice of such decision, and thereupon the
term of this Lease shall expire by lapse of time upon the third day after
such notice is given, and Tenant shall vacate
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Demised Premises and surrender the same to Landlord.
10.2 Notwithstanding anything contained in this Article 10 to the
contrary, in no event shall Landlord be required to spend for any repair,
replacement or reconstruction of the Demised Premises or the Building an amount
greater that the insurance proceeds actually received by Landlord as a result of
the fire or other casualty causing such loss, damage or destruction.
10.3 The provisions of this Lease, including this Article 10,
constitute an express agreement between Landlord and Tenant with respect to any
and all damage to, or destruction of, all or any part of the Demised Premises,
the Building or any other portion of the Park, and any stature or regulation of
the State of California, including, without limitation, Sections 1932(2) and
1933(4) of the California Civil Code, with respect to any rights or obligations
concerning damage or destruction in any absence of an express agreement between
the parties, and any similar statute or regulation, now or hereafter in effect,
shall have no application to this Lease or to any damage to or destruction of
all or any part of the Demised Premises, the Building or any other portion of
the Park.
10.4 Notwithstanding the provisions of this Article, Landlord waives
any and at L rights of recovery against Tenant for or arising out of damage to
or destruction of the Building or Demised Premises, from causes then included
under standard fire and extended coverage insurance policies or endorsements,
whether or not such damage or destruction shall have been caused by the
negligence of Tenant, its agents, servants, employees, contractors, visitors or
Licensees, but only to the extent that Landlord's insurance policies then in
force permit such waiver and only to the extent of insurance proceeds actually
received by Landlord for such damage or destruction. Tenant waives any and all
rights of recovery against Landlord for or arising out of damage to or
destruction of any property of Tenant, from causes then included under standard
fire and extended coverage insurance policies or endorsements, whether or not
caused by the negligence of Landlord, its agents, servants, employees,
contractors, visitors or Licensees, but only to the extent that Tenant's
insurance policies then in force permit such waiver. Landlord and Tenant
represent that their present insurance policies now in force permit such waiver.
10.5 If at any time during the term of this Lease either party shall
give no Less than five (5) days prior notice to the other certifying that any
insurance carrier which shall have issued any such policy covering any of the
property above mentioned shall refuse to consent to the aforesaid waiver of
subrogation, or if such carrier shall consent to such waiver only upon the
payment of an additional premium (and such additional premium is not paid by the
other party hereto), or such carrier shall revoke a consent previously given or
shall cancel or threaten to cancel any policy previously issued and then in
force and effect, because of such waiver of subrogation, then, in any of such
events, the waiver in this Article shall thereupon be of no further force and
effect as to the Loss, damage or destruction covered by such policy; provided,
however, that if at any time thereafter such consent shall be obtained therefor
without an additional premium from any existing or substitute insurance carrier,
the waiver hereinabove provided for shall again become effective.
EMINENT DOMAIN
11.1 If the whole or any part of Demised Premises shall be taken or
condemned for all or any portion of the Term by any competent authority for any
public or quasi-public use or purpose, or transferred by agreement in connection
with such public or quasi-public use or purpose with or without any condemnation
action or proceeding being instituted, then, and in either such event, the Term
of this Lease shall, at the option of the Landlord, terminate as of the date
when the possession of the part so taken shall be required for such use or
purpose, and without apportionment of the award, such that the entire award is
paid to Landlord. The then current rental, however, shall in any such case be
apportioned. Tenant hereby expressly assigns to Landlord any award which may be
made in any taking or condemnation as therein provided, together with any and
all rights of Tenant now or hereafter arising in or to the same or any part
thereof.
11.2 Nothing contained herein shall be deemed to give Landlord any
interest in, or to require Tenant to assign to Landlord, any award made to
Tenant specifically for its relocation expenses, the taking of personal
property and fixtures belonging to Tenant, or the interruption of or damage
to Tenant's business if such award is made separately to Tenant and not as
part of the damages recoverable by Landlord.
8
11.3 If all or any portion of the Demised Premises is condemned or
otherwise taken for public or quasi-public use for a Limited period of time,
this Lease shall remain in full force and effect and Tenant shall continue to
perform all terms, conditions and covenants of this Lease. Tenant shall be
entitled to receive the entire award made in connection with any such temporary
condemnation or other taking.
11.4 Landlord may, without any obligation to Tenant, agree to sell
and/or convey to the condemnor the Demised Premises, the Building, the Park or
any portion thereof sought by the condemnor, free from this Lease and the rights
of Tenant hereunder, without first requiring that any action or proceeding be
instituted or, if instituted, pursued to a judgment.
SERVICES
ELEVATORS, HEATING, VENTILATING, AIR CONDITIONING, ELECTRICITY, WATER, AND
CLEANING
12.1 Landlord shall:
A. Provide automatic elevator facilities on usual business
days and have one elevator available at all other times;
B. On usual business days (and at other times for a reasonable
additional charge to be fixed by Landlord) ventilate Demised Premises and
furnish heating or air conditioning when in the judgment of Landlord it may be
required for the comfortable occupancy of Demised Premises. Tenant agrees to
keep and cause to be kept closed all doors from Demised Premises and the windows
in Demised Premises, and Tenant agrees to cooperate fully at all times with
Landlord and to abide by all regulations and requirements which Landlord may
prescribe for the proper functioning and protection of the heating, ventilating
and air conditioning system. Tenant shall not install or use in Demised Premises
any equipment which would generate heat so as to adversely affect the heating,
ventilating and air conditioning system. Landlord, throughout the term of this
Lease, shall have free access to any and all mechanical installations of
Landlord or Tenant, including, but not limited to, air conditioning, fan,
ventilating and machine rooms, telephone rooms and electrical closets. Tenant
agrees that there shall be no construction of partitions or other obstructions
which might interfere with Landlord's free access thereto, or interfere with the
moving of Landlord's equipment to or from the enclosures containing said
installations. Tenant further agrees that neither Tenant, nor its agents,
servants, employees, contractor, visitors or licensees shall at any time enter
the said enclosures o tamper with, adjust, touch or otherwise in any manner
affect Landlord's said mechanical installations;
C. Provide electricity for "Landlord's Standard" lighting and normal
office business machine (not including computers or electronic data
processing or ancillary equipment) purposes only. Tenant agrees not to use
any apparatus or device in, or upon, or about Demised Premises which may in
any way increase the amount of such electricity usually furnished or supplied
to said premises and Tenant further agrees not to connect any apparatus or
device to the wires, conduits or pipes, or other means by which such
electricity is supplied, for the purpose of using additional or unusual
amounts of electricity, without the prior written consent of Landlord. If
Tenant uses the same to excess or follows a regular practice of using
electricity beyond the usual business hours on normal business days, Landlord
shall have the right to estimate from time to time (both retroactively and
prospectively) the amount that Tenant should pay on account thereof, and
Tenant, after notice by Landlord of such estimate or revised estimate, agrees
to pay such amount on the first day of each calendar month thereafter or, if
such estimate be made during the last month of the term or after its
expiration, promptly upon demand by Landlord. At all times Tenant's use of
electric current shall never exceed the capacity of the feeders to the
Building or the risers or wiring installation. Tenant shall not install or
use or permit the installation or use in Demised Premises, of any computer or
electronic data processing or ancillary equipment or any other electrical
apparatus designed to operate on electrical current in excess of 110 volts
and 5 amps per machine, without the prior written consent of Landlord;
D. Furnish water for drinking and lavatory purposes only, but if
Tenant requires, uses or consumes water for any purpose in addition to
ordinary drinking and Lavatory purposes, of which fact Tenant constitutes
Landlord to be the sole judge, Landlord may install a water meter and thereby
measure Tenant's water consumption for all purposes. Tenant shall pay
Landlord for the cost of the meter and the cost of the installation thereof
and throughout the duration of Tenant's occupancy Tenant shall keep said
meter and installation equipment in good working order and repair at Tenant's
own cost and expense, in default of which Landlord may cause such meter and
equipment to 9
be replaced or repaired and collect the cost thereof from Tenant. Tenant
agrees to pay for water consumed, as shown on said meter, as and when bills
are rendered and on default in making such payment Landlord may pay such
charges and collect the same from Tenant; and
E. Cause Demised Premises to be kept clean, provided the same are used
exclusively as ordinary desk-type offices and are kept reasonably in order by
Tenant, and, if to be kept clean by Tenant, no one other than persons approved
in advance in writing by Landlord shall be permitted to enter Demised Premises
for such premises. If Demised Premises or any part thereof is not used
exclusively as ordinary desk-type offices, same shall be kept clean and in order
by Tenant, at Tenant's expense, and to the satisfaction of Landlord, and by
persons approved in advance in writing by Landlord. Tenant shall pay to Landlord
the cost of removal of any of Tenant's refuse and rubbish, to the extent that
the same exceeds the refuse and rubbish usually attendant upon the use of
Demised Premises exclusively as ordinary desk-type offices.
12.2 Tenant shall at all times maintain at its own cost and expense all
plumbing facilities and equipment attached thereto within Demised Premises in
good order, condition and repair to the satisfaction of Landlord. Tenant hereby
indemnifies Landlord against any and all claims, Liabilities, losses, damages,
costs and expenses whatsoever (including, but not Limited to, attorneys' fees
and expenses) whether suffered by Landlord or other occupants or persons in the
Building, the Park or any of the areas used in connection with the operation
thereof arising out of the matters referred to in this subsection, unless caused
by or due to the sole negligence of Landlord, Landlord's agents, servants or
employees. Landlord shall not be obligated to clean or provide supplies for any
such plumbing facilities or equipment attached thereto, and if the rooms in
which any such facilities or equipment are Located require cleaning in excess of
that normally provided by Landlord for ordinary desk-type office space, Tenant
shall, at Tenant's expense, cause any such excess cleaning to be performed only
by a contractor approved in advance in writing by Landlord. Landlord hereby
reserves the right, without Limiting the generality of the foregoing, to require
that any such cleaning be performed by Landlord's regular cleaning contractor
for the Xxx Wing. Nothing herein contained shall be construed to confer upon
Tenant the right to install any plumbing facilities without the prior written
consent of Landlord.
12.3 Landlord reserves the right to stop service of the elevator,
plumbing, heating, ventilating, air conditioning and electric or other
mechanical systems, or cleaning services when necessary, without any offset in
rent, by reason of accident or emergency or for inspection, repairs,
alterations, decorations, additions or improvements, which in the judgment of
Landlord are desirable or necessary to be made, until same shall have been
completed, and shall have no responsibility or liability for failure to supply
any of such services in such instance. However, in the even a service is stopped
such that Tenant cannot reasonably conduct its business for a period exceeding
ten (10) business days, Tenant's rent shall xxxxx until such service is restored
and Tenant can conduct business in the Demised Premises.
ACCESS TO PREMISES
13.1 Tenant shall permit Landlord to use and maintain pipes and
conduits in and through Demised Premises. Landlord and Landlord's agents
shall have the right to enter Demised Premises at all times, to examine the
same and to clean and make such repairs, alterations, decorations, additions
and improvements as Landlord may deem necessary or desirable, and Landlord
shall be allowed to take all material into and upon Demised Premises that may
be required therefor without the same constituting an eviction of Tenant in
whole or in part, and subject to the provisions of Article 10, the Base
Annual Rent reserved shall in no wise xxxxx white said repairs, alterations,
decorations, additions or improvements are being made, by reason of
inconvenience, annoyance or injury to the business of Tenant because of the
prosecution of any such work, or otherwise. Landlord and Landlord's agents
are expressly granted permission to show Demised Premises at any reasonable
time to prospective tenants, mortgagees, purchasers, Lessees of the Building
and other persons with a business interest therein. If, during the last month
of the Term, Tenant shall have removed all or substantially all of Tenant's
property therefrom, Landlord may immediately enter and alter, renovate and
redecorate Demised Premises, without elimination or abatement of rent or
other compensation, and such acts shall have no effect upon this Lease.
If Tenant shall not be personally present to open and permit an
entry into Demised Premises, at any time, when for any reason an entry
therein shall be necessary or permissible hereunder, Landlord or Landlord's
agents may enter the same by a master key, or may forcibly enter the same,
without rendering Landlord or such agents liable
10
therefor (I during such entry Landlord or Landlord's agents shall accord
reasonable care to Tenant's property therefrom, Landlord may immediately
enter and alter, renovate and redecorate Demised Premises, without
elimination or abatement of rent or other compensation, and such acts shall
have no effect upon this Lease.
If Tenant shall not be personally present to open and permit an entry into
Demised Premises, a any time, when for any reason an entry therein shall be
necessary or permissible hereunder, Landlord or Landlord's agents may enter
the same by a master key, or may forcibly enter the same, without rendering
Landlord or such agents liable therefor (if during such entry Landlord or
Landlord's agents shall accord reasonable care to Tenant's property), and
without in any manner affecting the obligations, terms, covenants,
conditions, provisions or agreement of this Lease. Nothing herein contained,
however, shall be deemed or construed to impose upon Landlord any obligation,
responsibility or liability whatsoever, for the care, supervision or repair
of the Park or the Building or any part thereof, other than an otherwise
provided in this Lease.
TENANT'S INSURANCE
14.1 Tenant shall carry at its expense and maintain in force during the
Term the following insurance:
A. Comprehensive General Liability Insurance (including
protective Liability coverage on operations of independent contractors
engaged in construction and also blanket contractual Liability insurance) on
an "occurrence', basis for the benefit of Tenant and Landlord as named
insured against claims for "personal injury" liability including without
Limitation bodily injury, death or property damage Liability with a Limit of
not Less than One Million Dollars ($1,000,000) in the event of "personal
injury" to any number of persons or of damages to property arising out of any
one "occurrence"; such insurance may be furnished under a "primary" policy
and an "umbrella" policy, provided that it is primary insurance and not
excess over or contributory with any insurance in force for Landlord;
B. Insurance against Loss or damage by fire and such other
risks and hazards as are insurable under present and future standard forms of
fire and extended coverage insurance policies, to the personal property,
furniture, furnishings and fixtures belonging to Tenant Located in the
Demised Premises for not less than 100% of the actual replacement value
thereof. Such insurance shall provide for a waiver of the insurer's right of
subrogation against Landlord; and
C. Such other insurance as may be required by Landlord in
connection with the Demised Premises or Tenant's activities in the Park.
14.2 All such insurance shall name Landlord as additional insured,
shall be effected under policies issued by insurers, shall be in forms and for
amounts approved by Landlord and shall provide that Landlord shall receive
thirty (30) days' written notice from the insurer prior to any cancellation or
change of coverage.
14.3 Tenant shall deliver policies of such insurance or certificates
thereof to Landlord on or before the Commencement Date, and thereafter at Least
thirty (30) days before the expiration dates of expiring policies; and, in the
event Tenant shall fail to procure such insurance, or to deliver such policies
or certificates, Landlord may, at its option, procure same for the account of
Tenant, and the cost thereof shall be paid to Landlord as additional charges
within ten (10) days after delivery to Tenant of bills therefor. Nothing
contained in this Article 14 shall be construed as a Limitation of Tenant's
Liability hereunder.
CERTIFICATES OF OCCUPANCY
15.1 Tenant shall not at any time use or occupy Demised Premises in
violation of the certificates of occupancy issued for the Building or the
Demised Premises and in the event that any department of the city or county
in which the Building is Located, or the State of California, shall hereafter
at any time contend or declare that Demised Premises are used for a purpose
which is in violation of such certificate or certificates of occupancy,
Tenant shall, upon five (5) days' notice from Landlord or any governmental
agency immediately discontinue such use of Demised Premises. Failure by
Tenant to discontinue such use after such notice shall be considered a
default under this Lease and Landlord shall have the right to terminate this
Lease immediately, and in addition thereto shall have the
11
right to exercise any and all rights and privileges and remedies given to
Landlord by and pursuant to the provisions of Article 18 hereof. The statement
in this Lease of the nature of the business to be conducted by Tenant in Demised
Premises shall not be deemed or construed to constitute a representation or
guaranty by Landlord that such business is Lawful or permissible or will
continue to be Lawful or permissible under any certificate of occupancy issued
for the Xxx Wing, or otherwise permitted by Law.
LIFE-SAFETY SYSTEMS
16.1 If there now is or shall be installed in the Building a sprinkler
system, heat or smoke detection system or any other so-called Life-safety system
and any such system or any of its appliances shall be damaged or injured or not
in proper working order by reason of any act or omission of Tenant, Tenant's
agents, servants, employees, contractors, visitors or Licensees, Tenant shall
forthwith restore the same to good working condition; and if the Insurance
Services office or any other similar body or any bureau, department or official
of the state, county or city government, or any governmental authority having
jurisdiction, require or recommend that any changes, modifications, alterations,
or additional equipment be made or supplied in or to any such system by reason
of Tenant's business, or the Location of partitions, trade fixtures, or other
contents of Demised Premises, or if any such changes, modifications, alterations
or additional equipment become necessary to prevent the imposition of a penalty
or charge against the full allowance for any such system in the insurance rate
as fixed by said office, or by any insurance company, Tenant shall, at Tenant's
expense, promptly make and supply such changes, modifications, alterations or
additional equipment.
BANKRUPTCY
17.1 PRIOR TO TERM. If at any time prior to the date herein fixed as
the commencement of the Term of this Lease there shall be filed by or against
Tenant in any court pursuant to any statute either of the Unites States or of
any state a petition in bankruptcy or insolvency or for reorganization or for
the appointment of a receiver or trustee or conservator of all or a portion of
Tenant's property, or if Tenant makes an assignment for the benefit of
creditors, this Lease shall ipso facto be canceled and terminated and in such
event neither Tenant nor any person claiming through or under Tenant or by
virtue of any statute or by an order of any court shall be entitled to
possession of Demised Premises and Landlord, in addition to the other rights and
remedies given by subsection 17.3 hereof or by virtue of any other provision in
this Lease contained or by virtue of any statute or rule of law, may retain as
damages any rent, security, deposit or moneys received by it from Tenant or
others on behalf of Tenant.
17.2 DURING TERM. If at the date fixed as the commencement of the
Term of this Lease or if at any time during the Term there shall be filed by
or against Tenant in any court pursuant to any statute either of the United
States or of any state a petition in bankruptcy or insolvency or for
reorganization or for the appointment of a receiver of trustee or conservator
of all or a portion of Tenant's property, or if Tenant makes an assignment
for the benefit of creditors, this Lease, at the option of Landlord exercised
within a reasonable time after notice of the happening of any one or more of
such events, may be canceled and terminated and in such event neither Tenant
nor any person claiming through or under Tenant or by virtue of any statute
or of an order of any court shall en entitled to possession or to remain in
possession of Demised Premises but shall forthwith quit and surrender Demised
Premises, and Landlord, in addition to the other rights and remedies granted
by subsection 17.3 hereof or by virtue of any other provision in this Lease
contained or by virtue of any stature or rule of law, may retain as damages
any rent, security, deposit or moneys received by it from Tenant or others on
behalf of Tenant.
17.3 MEASURE OF DAMAGES. In the event of the termination of this Lease
pursuant to subsections 17.1 and 17.2 of this Article, Landlord shall be
entitled to the same rights and remedies as those set forth in subsections 18.4
and 18.5 and in Article 21 of this Lease.
17.4 In the event of the occurrence of any of those events specified
in this Article, if Landlord shall not choose to exercise, or by Law shall
not be able to exercise, its rights hereunder to terminate this Lease upon
the occurrence of such events, then, in addition to any other rights of
Landlord hereunder or by taw, (i) Landlord shall not be obligated to provide
Tenant with any of the services specified in Article 12, unless Landlord has
received compensation in advance for such services, and the parties agree
that Landlord's estimate of the compensation required with respect to such
services shall control, and (ii) neither Tenant, as debtor in-possession, nor
any trustee or other person (hereinafter collectively called the "Assuming
Tenant") shall be entitled to assume this Lease unless, on or
12
before the date of such assumption, the Assuming Tenant (a) cures, or
provides adequate assurance that the latter will promptly cure, any existing
default under this Lease, (b) compensates, or provides adequate assurance
that the Assuming Tenant will promptly compensate, Landlord for any pecuniary
toss (including, without Limitation, attorneys' fees and disbursements)
resulting from such default, and (c) provides adequate assurance of future
performance under this Lease, it being covenanted and agreed by the parties
that, for such purposes, any cure or compensation shall be effected by the
immediate payment of any monetary default or any required compensation, or
the immediate correction or bonding of any nonmonetary default; any "adequate
assurance" of such cure or compensation shall be effected by the
establishment of an escrow fund for the amount at issue or by bonding and
"adequate assurance" of future performance shall be effected by the
establishment of an escrow fund for the amount at issue or by bonding, it
being covenanted and agreed by Landlord and Tenant that the foregoing
provision was a material part of the consideration for this Lease.
DEFAULT
18.1 It shall, at Landlord's option, be deemed a breach of this Lease
if 0) Tenant defaults (a) in the making of any payments of money pursuant to
this Lease, or (b) in fulfilling any other term, covenant, condition, provision
or agreement of this Lease if said default under this clause (b) continues to
exist at the expiration of ten (10) days after notice thereof given by Landlord
to Tenant or (ii) Demised Premises becomes vacant or deserted or (iii) Tenant
shall cease to occupy Demised Premises or shall remove substantially all of
Tenant's furniture therefrom or (iv) Tenant shall fail to move into or take
possession of Demised Premises within fifteen (15) days after the commencement
of the Term or (v) any execution or attachment shall be issued against Tenant or
any of Tenant's property or (vi) Demised Premises shall be taken or occupied or
attempted to be taken or occupied by someone other than Tenant or (vii) Tenant
shall default with respect to any other Lease between (a) Landlord and Tenant,
or (b) any parent company or subsidiary company or affiliate or agent of
Landlord, and Tenant or (viii) Tenant assigns or otherwise transfers
substantially all of the assets used in connection with the business conducted
in Demised Premises. Notwithstanding the above, if Tenant's default is
non-monetary in nature, and is not a breach of Article 3 or Article 17, Tenant
shall not be in breach of this Lease if Tenant immediately commences to cure the
default after notice thereof given by Landlord to Tenant and Tenant diligently
and continuously prosecutes the cure to completion.
18.2 In the event that Landlord elects, pursuant to subsection 18.1 of
this Article, to declare a breach of this Lease, then Landlord shall have the
right to give Tenant five (5) days, notice of intention to end the Term of this
Lease and thereupon, at the expiration of said five (5) days, the Term of this
Lease shall expire as fully and completely as if that day were the day herein
definitely fixed for the expiration of the Term hereof and Tenant shall then
quit and surrender Demised Premises to Landlord, but Tenant shall remain liable
as hereinafter provided. if Tenant fails to so quit and surrender Demised
Promises as aforesaid, Landlord shall have the right, without notice, to
re-enter Demised Premises either by force or otherwise and dispossess Tenant and
the Legal representatives of Tenant and all other occupants of Demised Premises
by unlawful detainer or other summary proceedings, or otherwise, and remove
their effects and regain possession of Demised Premises (but Landlord shall not
be obligated to effect such removal) and Tenant hereby waives service of notice
of intention to re-enter or to institute Legal proceedings to that end.
18.3 In the event of any breach of this Lease by Tenant (and regardless
of whether or not Tenant has abandoned Demised Premises), this Lease shall not
terminate unless Landlord, at Landlord's option, elects at any time when Tenant
is in breach of this Lease to terminate Tenant's right to possession as provided
in subsection 18.2 of this Article or, at Landlord's further option, by the
giving of any notice (including but not Limited to any notice preliminary or
prerequisite to the bringing of Legal proceedings in unlawful detainer)
terminates Tenant's right to possession. For so long as this Lease continues in
effect, Landlord may enforce all of Landlord's rights and remedies under this
Lease, including the right to recover all rent as it becomes due hereunder. For
the purposes of this subsection, the following shall not constitute termination
of Tenant's right to possession: (i) acts of maintenance or preservation of
efforts to relet Demised Premises, or (ii) the appointment of a receiver upon
initiative of Landlord to protect Landlord's interest under this Lease.
18.4 In the event of termination of this Lease or termination of
Tenant's right to possession (as a result of Tenant's breach of this Lease or
pursuant to Article 17), Landlord shall have:
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A. The right to remove any and all persons and property
from Demised Premises, with or without legal process, and pursuant to such
rights and remedies as the Laws of the State of California shall then provide
or permit, but Landlord shall not be obligated to effect such removal. Said
property may, at Landlord's option, be stored or otherwise dealt with as
provided within this Lease or as such Laws may then provide or permit,
including but not Limited to the right of Landlord to sell or otherwise
dispose of the same or to store the same, or any part thereof, in a warehouse
or elsewhere at the expense and risk of and for the account of Tenant.
B. The rights and remedies provided by California Civil
Code Section 1951.2 to recover from Tenant upon termination of the Lease:
(1) the worth at the time of award of the unpaid rent
and other charges which had been earned at the time of termination;
(2) the worth at the time of award of the amount by
which the unpaid rent and other charge which would have been earned
after termination until the time of award exceeds the amount of such
rental loss that Tenant proves could have been reasonably avoided;
(3) subject to Subdivision (c) of the California
Civil Code Section 1951.2, the worth at the time of award of the amount
by which the unpaid rent and other charges for the balance of the Term after
the time of award exceeds the amount of rental loss that Tenant proves could
be reasonably avoided; and
(4) any other amount necessary to compensate
Landlord for all the detriment proximately caused by Tenant's failure to perform
its obligations under this Lease or which in the ordinary course of things would
be Likely to result therefrom. The "worth" at the time of award of the amounts
referred to in clauses (1) and (2) of this subsection shall be computed by
allowing interest at the default rate. The worth at the time of the award of the
amount referred to in clause (3) of this Section shall be computed by
discounting such amount at the discount rate of the Federal Reserve Bank of San
Francisco at the time of award plus one percent 0%).
C. The rights and remedies provided by California Civil
Code Section 1951.4, which allows Landlord to continue this Lease in effect
and to enforce all of its rights and remedies under this Lease, including the
right to recover rent and additional charges as they become due, for as Long
as Landlord does not terminate Tenant's right to possession; provided,
however, if Landlord elects to exercise its remedies described in this
subsection and Landlord does not terminate this Lease, and if Tenant requests
Landlord's consent to an assignment of this Lease or a sublease of the
Demised Premises at such time as Tenant is in default, Landlord shall not
unreasonably withhold its consent to such assignment or sublease.
D. To enforce, to the extent permitted by the Laws of the
State of California then in force and effect, any other rights or remedies
set forth in this Lease or otherwise applicable hereto by operation of Law or
contract.
18.5 In the event of a breach or threatened breach by Tenant of any of
the terms, covenants, conditions, provisions or agreements of this Lease,
Landlord shall additionally have the right of any remedy available to Landlord,
at law or in equity. Mention in this Lease of any particular remedy shall not
preclude Landlord from any other remedy, at law or in equity.
18.6 Tenant hereby expressly waives any and all rights of redemption
granted by or under any present or future Law in the event of Tenant's being
evicted or dispossessed for any cause, or in the event of Landlord's obtaining
possession of Demised Premises, by reason of the violation by Tenant of any of
the terms, covenants, conditions, provisions or agreements of this Lease, or
otherwise.
FEES AND EXPENSES
19.1 If Tenant shall default in the performance of any obligation on
Tenant's part to be performed under this Lease, Landlord may immediately, or at
any time thereafter, without notice, perform the same for the account of Tenant.
If Landlord at any time is compelled to pay or elects to pay any sum of money or
do any act which will require the payment of any sum of money including but not
Limited to employment of attorneys or incurring of costs),
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by reason of failure of Tenant to comply with any term, covenant, condition,
provision or agreement hereof, or, if Landlord is compelled to incur or
elects to incur any expense (including but not Limited to reasonable
attorneys' fees in instituting, prosecuting or defending any action or
proceeding, whether or not such action or proceeding proceeds to judgment) by
reason of any default of Tenant hereunder, the sum or sums so paid or
incurred by Landlord with interest at the Default Rate shall be due from
Tenant to Landlord promptly upon demand by Landlord.
NO REPRESENTATIONS BY LANDLORD
20.1 Neither Landlord nor Landlord's agents have made any
representations or promises with respect to the Park, Building or Demised
Premises except as herein expressly set forth. The taking of possession of
Demised Premises by Tenant shall be conclusive evidence, as against Tenant, that
Tenant accepts the same in its then "as is" condition and that Demised Premises,
the Building and the Park were in good and satisfactory condition at the time
such possession was so taken.
END OF TERM
21.1 Upon the expiration or other termination of the Term, Tenant
shall quit and surrender to Landlord Demised Premises, broom clean, in as
good order, condition and repair as it now is or may hereafter be placed,
ordinary wear excepted. Tenant shall remove all property of Tenant, as
directed by Landlord. Any property left on Demised Premises at the expiration
or other termination of this Lease, or after the happenings of any of the
events of default set forth in Article 18, may, at the option of Landlord,
either be deemed abandoned or be placed in storage at a public warehouse in
the name of and for the account of and at the expense and risk of Tenant or
otherwise disposed of by Landlord in the manner provided by Law. Tenant
expressly releases Landlord of and from any and all claims and Liability for
damage to or destruction or Loss of property left by Tenant upon Demised
Premises at the expiration of other termination of this Lease and Tenant
hereby indemnifies Landlord against any and all claims and Liability with
respect thereto. If Tenant holds over after the Term with the consent of
Landlord, express or implied, such tenancy shall be from month to month only
and shall not be a renewal hereof, and Tenant shall pay the rent and all the
other charges at the same rate as herein provided and also comply with all of
the terms, covenants, conditions, provisions and agreements of this Lease for
the time during which Tenant holds over. If Tenant holds over after the Term
without the consent of Landlord and shall fail to vacate Demised Premises
after the expiration or sooner termination of this Lease for any cause or
after Tenant's right to occupy same ceases, thereafter, and notwithstanding
anything to the contrary contained elsewhere in this Lease, Tenant shall be
liable to Landlord for the use and occupancy of Demised Premises in an amount
agreed to be one hundred twenty-five percent (125%) of the monthly
installments of Base Annual Rent, and all the other changes as provided in
this Lease for the last month of the Term. If Demised Premises are not
surrendered at the end of the Term, Tenant shall be additionally responsible
to Landlord for all damage (including but not limited to the loss of rent)
which Landlord shall suffer by reason thereof, and Tenant hereby indemnifies
Landlord against all claims made by any succeeding tenant against Landlord,
resulting from delay by Landlord in delivering possession of Demised Premises
to such succeeding tenant. Tenant's obligation to observe or perform all of
the terms, covenants, conditions, provisions and agreements of this Article
shall survive the expiration or other termination of this Lease.
QUIET POSSESSION
22.1 Landlord covenants and agrees with Tenant that upon Tenant's
paying Base Annual Rent and all other charges and observing and performing
all of the terms, covenants, conditions, provisions and agreements of this
Lease on Tenant's part to be observed or performed, Tenant shall have quiet
possession of the premises hereby demised for the Term subject, however, to
the terms of this Lease and of any ground Leases, underlying Leases,
mortgages and deeds of trust affecting all or any portion of the Building or
any of the areas used in connection with the operation of the Building.
LANDLORD'S WORK AND FAILURE TO GIVE POSSESSION
23.1 TENANT INSTALLATIONS PRIOR TO THE COMMENCEMENT DATE. Landlord
will perform the work and make the installations in the Demised Premises
substantially as set forth in the Work Letter attached hereto as Exhibit B
(the "Landlord's Work").
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23.2 If Landlord shall be unable to give possession of Demised
Premises on the Commencement Date by reason of the fact that Demised Premises
are Located in a building being constructed and which has not been
sufficiently completed to make Demised Premises ready for occupancy or by
reason of the fact that a certificate of occupancy has not been procured or
for any other reason, or if the Building is not in course of construction and
Landlord is unable to give possession of Demised Premises on the date of the
commencement of the Term hereof by reason of the holding over of any tenant
or tenants or for any other reason, or if Landlord's Work is not completed,
any such delay resulting therefrom shall be deemed excused and Landlord shall
not be subject to any liability for the failure to give possession on said
date. Under such circumstances the rent reserved and covenanted to be paid
herein shall not commence until possession of Demised Premises is given or
Demised Premises is available for occupancy by Tenant, as fixed in a notice
given by Landlord to Tenant, unless such delay is the fault of Tenant. No
such failure to give possession on the date of the commencement of the term
shall in any wise affect or impair the validity of this Lease or the
obligations of Tenant hereunder, nor shall the same be construed in any way
to extend the Expiration Date. If permission is given to Tenant to enter into
the possession of Demised Premises or to occupy premises other than Demised
Premises prior to the date specified as the commencement of the Term, such
occupancy shall be deemed to be under all the terms, covenants, conditions,
provisions, and agreements of this Lease, including without Limitation Tenant
hereby agreeing to pay Base Annual Rent and other charges at the same rate as
though the term of this Lease and commenced. Notwithstanding the above, In
the event that Landlord is unable to give possession of the Demised Premises
as of sixty (60) days after the Commencement Date (subject to an additional
thirty (30) days for delays caused by force majeure) and said delay is not
caused by Tenant, then Tenant shall have the option to terminate this Lease
prior to taking possession of the Demised Premises.
TERMINATION, NO WAIVER, NO ORAL CHANGE
24.1 In the event that this Lease terminates for any reason
(including but not Limited to termination by Landlord) prior to its natural
expiration date, such termination xxxx effect the termination of any and all
agreements for the extension of this Lease (whether expressed in an option,
exercised or not, or collateral document or otherwise); any right herein
contained on the part of Landlord to terminate this Lease shall continue
during any extension hereof; any option on the part of Tenant herein
contained for an extension hereof shall not be deemed to give Tenant any
option for a further extension beyond the first extended term. Interruption
or curtailment of any services shall not constitute a constructive or partial
eviction or entitle Tenant to any abatement of rent or any compensation
(including but not Limited to compensation for annoyance, inconvenience or
injury to business). No act or thing done by Landlord or Landlord's agents
during the Term shall be deemed an acceptance of a surrender of Demised
Premises, and no agreement to accept such surrender shall be valid unless in
writing signed by Landlord. No employee of Landlord or of Landlord's agents
shall have any power to accept the keys of said premises prior to the
termination of this Lease. The failure of Landlord to seek redress for
violation of, or to insist upon the strict performance of any term, covenant,
condition, provision or agreement of this Lease, or any of the Rules and
Regulations attached to this Lease or hereafter adopted by Landlord, shall
not prevent a subsequent act, which would have originally constituted a
violation, from having all the force and effect of an original violation. The
receipt by Landlord of rent with knowledge of the breach of any term,
covenant, condition, provision or agreement of this Lease, shall not be
deemed a waiver of such breach. The failure of Landlord to enforce any of the
Rules and Regulations attached to this Lease, or hereafter adopted, against
Tenant or any other tenant in the Building or in the park shall not be deemed
a waiver of any such Rule and Regulation. No provision of this Lease shall be
deemed to have been waived by Landlord, unless such waiver be in writing
signed by Landlord. No payment by Tenant or receipt by Landlord of a Lesser
amount than the Monthly Installment shall be deemed to be other than on
account of the earliest stipulated rent, nor shall any endorsement or
statement on any check or any Letter accompanying any check or payment as
rent be deemed an accord and satisfaction, and Landlord may accept such check
or payment without prejudice to Landlord's right to recover the balance of
such rent or pursue any other remedy in this Lease provided. This Lease
contains the entire agreement between the parties, and recites the entire
consideration given and accepted by the parties. Any agreement hereafter made
shall be ineffective to change, modify, waive or discharge it in whole or in
part unless such agreement is in writing and signed by the party against whom
enforcement of the change, modification, waiver or discharge is sought.
WAIVER OF TRIAL BY JURY
25.1 The respective parties hereto hereby waive trial by jury in any
action, proceeding or counterclaim
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brought by either of the parties hereto against the other on any matter
whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of Demised
Premises, or any claim of injury or damage, or the enforcement of any remedy
under any statute, emergency or otherwise.
INABILITY TO PERFORM
26.1 This Lease and the obligation of the Tenant to pay rent
hereunder and to keep, observe and perform all of the other terms, covenants,
conditions, provisions and agreements of this Lease on the part of Tenant to
be kept, observed or performed shall in no wise be affected, impaired or
excused because landlord is unable to fulfill any of its obligations under
this Lease or to supply, or is delayed or curtailed in supplying any service
expressly or impliedly to be supplied or its unable to make, or is delayed or
curtailed in making, any repairs, alterations, decorations, additions or
improvements, or is unable to supply, or is delayed or curtailed in
supplying, any cause beyond Landlord's reasonable control, including, but not
limited to, acts of Go, strike or labor troubles, fuel or energy shortages,
governmental preemption or curtailment in connection with a national
emergency or in connection with any rule, order, guideline or regulation of
any department or governmental agency or by reason of the conditions of
supply and demand which have been or are affected by a war or other
emergency. Any such prevention, delay or curtailment shall be deemed excused
and Landlord shall not be subject to any liability resulting therefrom.
Notwithstanding the foregoing, in the event Landlord is unable to fulfill
obligations under this Lease, and Landlord's inability to perform prohibits
Tenant from reasonably conduct its business in the Demised Premises, then: 1)
If Landlord's inability to perform continues for a period exceeding ten (10)
business days, rent shall xxxxx until Tenant can reasonably conduct its
business in the Demised Premises, and 2) If Landlord's inability to perform
continues for a period exceeding ninety (90) days, Tenant shall have the
option of terminating the Lease. Tenant waives and releases its right to
terminate this Lease under Section 1932(1) of the California Civil Code or
under any similar law or statue now or hereafter in effect.
26.2 Landlord shall not be deemed to be in default in the performance
of any obligation required to be performed by it hereunder unless and until it
has failed to perform such obligation within thirty (30)days after written
notice by Tenant to Landlord specifying the nature of Landlord's failure to
perform such obligation; provided, however, that if the nature of Landlord's
obligation is such that more than thirty (30) days are required for its
performance, then Landlord shall not be deemed to be in default if it shall
commence such performance within such thirty (30) day period and thereafter
shall prosecute the same to completion. ALL rights to cure provided to Landlord
under this Section 26.2 shall also be accorded to any mortgagee or beneficiary
under a deed of trust encumbering the Building or the Park. Landlord shall not
be Liable for any injury or damage to persons or property resulting from Loss,
theft, fire, explosion, falling plaster, cessation or variation or shortage or
interruption of services or utilities, steam, gas, electricity, earthquake, acts
of God, rain or water or dampness from any source or any other cause whatsoever.
Without Limiting the generality of the foregoing, in no event shall Landlord
business interruptions or other consequential damages, except for damages
arising from Landlord's gross negligence or willful misconduct.
BILLS AND NOTICES
27.1 Except as otherwise in this Lease provided, a xxxx, statement,
consent, notice or communication which Landlord may desire or be required to
give to Tenant, shall be deemed sufficiently given or rendered if in writing,
delivered to Tenant personally or sent by registered or certified mail
addressed to Tenant at the Building or at the Last known residence address or
business address of Tenant or Left at Demised Premises addressed to Tenant,
and the time of the rendition of such xxxx or statement and of the giving of
such consent, notice or communication shall be deemed to be the time when the
same is delivered to Tenant, mailed, or Left at Demised Premises as herein
provided. Any notice, request, demand or communication by Tenant to Landlord
must be in writing and served by registered or certified mail (postage fully
prepaid), addressed to Landlord, at the address set forth in Article J of
Section 1, or at such other address as Landlord shall designate by notice
given as herein provided, and the time of the giving of such notice, request,
demand or communication shall be deemed to be the time when the same is
mailed as herein provided. If Tenant is notified of the identity and address
of Landlord's mortgagee or beneficiary under a deed of trust, or ground or
underlying Lessor, Tenant shall give such party notice of any default by
Landlord hereunder by registered or certified mail and such party shall have
a reasonable opportunity to cure such default before Tenant's exercising any
remedy available to it.
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INCREASE OF TAXES AND OPERATING COSTS
28.1 If, in any Computation Year during the term of this Lease Taxes
(as hereinafter defined) and Operating Costs (as hereinafter defined) shall be
increased above the amount of Base Taxes and Operating Costs Amount specified in
Article K of Section I of this Lease, the Base Annual Rent shall be increased by
Tenant's Share specified in Article M of Section I of this Lease of the amount
of any such increase in Taxes and Operating Costs, subject to a maximum increase
in the sum of taxes plus Operating Cost of ten percent (10%) in any Computation
Year when compared with the immediately proceeding Computation Year.
28.2 Definitions.
A. "Computation Year" shall mean each twelve (12) consecutive
month period commencing January 1 of each year during the Term,
provided that Landlord, upon notice to Tenant, may change the
Computation Year from time to time to any other twelve (12) consecutive
month period and, in the event of any such change, Tenant's share of
Taxes and Operating Costs shall be equitably adjusted for the
Computation Years involved in any such change.
B. Tenant's Share has been computed by dividing the Rentable
Area of the Demised Premises by the total Rentable Area of the Building
and, in the event that either the Rentable Area of the Demised Premises
or the total Rentable Area of the Building is changed, Tenant's Share
will be appropriately adjusted by Landlord, which adjustment shall be
conclusive and binding on Tenant and, as to the Computation Year in
which such change occurs, for purposes of this Article 28, Tenant's
Share shall be determined on the basis of the number of days during
such Computation Year at each such percentage.
C. "Taxes" shall mean taxes and assessments upon or with
respect to the Building and the areas used in connection with the
operation of the Building imposed by Federal, State or Local
governments or governmental assessment districts, but shall not include
income, franchise, capital stock, estate, or inheritance taxes, but
shall include gross receipts taxes, special assessments and other
business taxes. If, because of any change in the method of taxation of
real estate, any tax or assessment is imposed upon Landlord or upon the
owner of the Land and/or the Building and/or the areas used in
connection with the operation of the Building or upon or with respect
to the Park and/or the Building and/or the areas used in connection
with the operation of the Building or the rents or income therefrom, in
substitution for or in lieu of any tax or assessment which would
otherwise be a real estate tax or assessment subject matter, or with
respect to any subject matter which was during fiscal year 1998-90 the
subject of a real estate tax or assessment, such other tax or
assessment shall be deemed to be included in Taxes. Taxes shall also
include legal fees, costs and disbursements incurred in connection with
proceedings to contest or reduced Taxes. If any Taxes are specially
assessed by reason of the occupancy or activities of on or more tenants
and not the occupancy or activities of the tenants as a whole, such
taxes shall be allocated by Landlord to the Tenant or Tenants whose
occupancy or activities brought about such assessment. In case there
shall be a reduction of the assessed valuation for any tax year which
affects the Taxes in any year or which a rent adjustment shall have
been made, the rent adjustment shall be recalculated on the basis of
the revised assessed valuation and Landlord will credit against the
rent next becoming due from Tenant such sums as may be due to Tenant by
reason of the recalculation, Less the expenses incurred in effecting
such reduction. In no event shall the amount of any such credit be in
excess of the amount of rent increase actually paid to Landlord by
Tenant for the period covered by such credit as a result of an increase
in Taxes.
D . "Operating Costs" shall mean the aggregate amount of (1)
wage and Labor costs applicable to the persons engaged in the
management, operation, maintenance, overhaul or repair of the Building
and the Park and the areas used in connection with the operation of the
Building and the Park whether they be employed by Landlord or by an
independent contractor with whom Landlord shall have contracted or may
contract for such services; any increase or decrease in the hours of
employment or the number of paid holidays or vacation days, social
security taxes, unemployment insurance taxes and the cost (if any) of
providing disability, hospitalization, medical, welfare, pension,
retirement or other benefits applicable with respect to such employees,
shall correspondingly affect the wage and Labor costs; and (2) cost of
utilities; fuel; building supplies and materials; service and
management contract; water and sewer charges; janitorial
18
services; security; Labor; parking expenses, utilities surcharges, or
any other costs Levied, assessed or imposed by, or at the direction of,
or resulting from statutes or regulations or interpretations thereof,
promulgated by any federal, state, regional, municipal or Local
government authority in connection with the use or occupancy of the
Building and the Park, or the parking facilities serving the Building;
costs incurred in the management of the Building; Building management
office rental; a management fee; air-conditioning; waste disposal;
heating; ventilating; elevator maintenance; supplies; materials;
equipment; tools; repair and maintenance of the structural portions of
the Building, including the plumbing, heating, ventilating,
air-conditioning and electrical systems installed or furnished by
Landlord; and maintenance, costs, and upkeep of all parking and common
areas, rental of personal property used in maintenance and management;
costs and expenses of gardening and landscaping; maintenance of signs;
personal property taxes Levied on or attributable to personal property
used in connection with the entire Building, including the Common
Areas; and costs and expenses of repairs, resurfacing, repairing,
maintenance, painting, Lighting, cleaning, refuse removal, security and
similar items; appropriate reserves; and the Common Area maintenance
charge obligation allocated to the Building and the Park including
Tenant's allocable share of Association Fees, if applicable in the
future and assessments for the maintenance of the Park and the Common
areas, and for any increase in (i) (ii) and (iii) alterations to the
Building or the Park or the areas used in connection with the operation
of the Building for Life-safety systems or energy conservation or to
effect economies in operations and maintenance of the Building or the
Park, or other capital improvements or replacements (together with all
costs, and interest thereon at a rate equal to two percent (2%) over
the annual prime rate of interest announced publicly by Bank of America
N.T.&S.A. at its San Francisco Headquarters from time to time [but in
no event in excess of the maximum rate of interest permitted by Law,]
incurred in connection with any such alterations or other capital
improvements or replacements) all amortized over their useful Life
except that any such costs (and the interest thereon) incurred in
connection with alterations or replacements for energy conservation may
be amortized at a yearly rate equal to the savings realized during such
period as a result of such alteration or replacement, and (iv) the cost
of fire, extended coverage, boiler, sprinkler, disaster, public
Liability, property damage, rent, earthquake and other insurance and
the deductible portion of any insured Loss otherwise covered by such
insurance, and (v) the cost of legal, accounting, consulting fees and
permits, certificates and Licenses required in connection with the
Building or the Park, and (vi) such other items as are now or hereafter
customarily included in the cost of managing, operating, maintaining,
overhauling and repairing the Building, the Park and the areas used in
connection with the operation of the Building in accordance with now or
hereafter accepted accounting or management principles or practices.
28.3 STATEMENTS FOR TENANTS AND PAYMENTS. Tenant shall pay to
Landlord as additional charges one twelfth (1/12) of Tenant's Share of the
increase in Taxes and Operating Costs for each Computation Year, in advance,
in an amount estimated by Landlord and billed by Landlord to Tenant; provided
that Landlord shall have the right initially to determine monthly estimates
and to revise such estimate from time to time. With reasonable promptness
after Landlord has received the tax bills and other operating cost support
for any Computation Year, Landlord shall furnish Tenant with a statement
(herein called "Landlord's Statement") showing a comparison of the Base Taxes
and Operating Costs Amount to the amount of Taxes and Operating Costs for
such Computation Year, and Tenant's Share of the increase in Taxes and
Operating Costs. If the actual increase in Taxes and Operating Costs for such
Computation Year exceed the estimated Taxes and operating Costs paid by
Tenant for such Computation Year, Tenant shall pay to Landlord the difference
between the amount paid by Tenant and the actual increase in Taxes and
Operating Costs within fifteen (15) days after the receipt of Landlord's
Statement, and if the total amount paid by Tenant for any such Computation
Year shall exceed the actual increase in Taxes and Operating Costs for such
Computation Year, such excess shall be credited against the next installments
of Taxes and Operating Costs due from Tenant to Landlord hereunder.
28.4 ADJUSTMENT FOR PARTIAL YEARS. If the Commencement Date shall
occur on a date other than the first day of a Computation Year, Tenant's
Share of Taxes and Operating Costs for the Computation Year in which the
Commencement Date occurs shall be in the proportion that the number of days
from and including the Commencement Date to and including the Last day of the
Computation Year in which bears to 365. Similarly, if the Expiration Date
19
shall occur on a date other than the Last day of a Computation Year, Tenant's
Share of Taxes and Operating Costs for the Computation Year in which the
Expiration Date occurs shall be in the proportion that the number of days
from and including the first day of the Computation Year in which the
Expiration Date occurs shall be in the proportion that the number of days
from and including the first day of the Computation Year in which the
Expiration Date occurs to and including the Expiration Date bears to 365.
Notwithstanding the forgoing, Landlord may, pending the determination of the
amount of Taxes and Operating Costs for such partial Computation year,
furnish Tenant with statements of estimated increases in Taxes and in
Operating Costs, and Tenant's Share of each thereof for such partial
Computation year. Within fifteen (15) days after receipt of such estimated
statement, Tenant shall remit to Landlord, as Additional Charges, the amount
of Tenant's Share of such Taxes and Operating Costs. After such Taxes and
Operating Costs have been finally determined and Landlord's Statement has
been furnished to Tenant pursuant to this Article, and if there shall have
been an underpayment of Tenant's Share of Taxes and Operating Costs, Tenant
shall remit the amount of such underpayment to Landlord shall remit the
amount of any such overpayment to Tenant within fifteen (15) days after the
issuance of such statements.
28.5 OCCUPANCY AND FRACTIONAL YEAR. For purposes of comparison to Base
Taxes and Operating Costs, there shall be added to the actual Taxes and
Operating Costs for any period during which the Building is less than 95%
occupied those additional expenses (of the type set forth in Paragraph B of
Subsection 28.2 of this Article) which Landlord determines it would have so
incurred had the building been 95% occupied during any such period. Furthermore,
for purposes of comparison to Base Taxes and Operating Costs, in any comparative
statement covering Less than a full Computation Year there shall be added to the
actual Taxes and Operating Costs for the period covered by the comparative
statement those additional expenses (of the type set forth in this Article)
which Landlord determines it would have so incurred had the Building been 95%
occupied during full Computation Year.
FOODS, BEVERAGES AND ODORS
29.1 Tenant shall not prepare any food nor do any cooking, conduct
any restaurant, Luncheonette or cafeteria for the sale or service of food or
beverages to its employees or to others, or cause or permit any odors of
cooking or other processes, or any unusual or objectionable odors to emanate
from Demised Premises. Tenant shall not install or permit the installation or
use of any vending machine or permit the delivery of any food or beverage to
Demised Premises except by such persons and in such manner as are approved in
advance in writing by Landlord.
SECURITY
30.1 Tenant has deposited with Landlord the sum specified in Article
N of Section 1 as security for the faithful performance and observance by
Tenant of all of the terms, covenants, conditions, provisions and agreements
of this Lease. Tenant shall not be entitled to interest on such security
deposit and Landlord shall not be obligated to hold such deposit as a
separate fund, but may commingle it with other funds. In the event Tenant
defaults in respect of any of the terms, covenants, conditions, provisions or
agreements of this Lease, including but not Limited to, the payment of rent
or other sums due hereunder, Landlord may use, apply or retain the whole or
any part of the security so deposited to the extent required for the payment
of any rent or another sums as to which Tenant is in default or for any sum
which Landlord may expend or may be required to expend by reason of Tenant's
default in respect of any of the terms, covenants, conditions, provisions or
agreements of this Lease, including, but not Limited to, any damages or
deficiency in the reletting of Demised Premises, whether such damages or
deficiency accrued before or after summary proceedings or other re-entry by
Landlord, Tenant, on demand by Landlord, will forthwith replenish the
security or any portion thereof so used or applied by Landlord. In the event
that Tenant shall fully and faithfully comply with all of the terms,
covenants, conditions, provisions and agreements of this Leases, the
security, without interest, shall be returned to Tenant within thirty (30)
days after the end of this Lease but only after delivery of entire
possession of Demised Premises to Landlord. In the event of a sate of the
Land and/or Building or Leasing of the land and/or the entire Building, or
the sale of such leasehold, Landlord shall have the right in accordance with
California Civil Code Section 1950.7 1) to return the security to Lessee, or
2) to transfer the security to the transferee or Lessee and Landlord shall
thereupon be released by Tenant from all Liability for the return of such
security; and in the event of such transfer of security Tenant shall Look to
the new Landlord solely for the return of said security; and the provisions
hereof shall apply to every transfer or assignment made of the security to a
new Landlord. Tenant shall not assign or encumber or attempt to assign or
encumber the security deposited herein and neither Landlord nor it s
successors or assigns shall be bound by any such agreement, encumbrance nor
by any
20
purported transfer thereof by operation of Law. In the event of the
termination of any ground Lease or foreclosure of any fee or leasehold
mortgage or deed of trust (of conveyance in lieu thereof) now or hereafter
affecting the real property of which Demised Premises forms a part, Tenant
shall Look to the new Landlord for the return of said security only if said
security is actually transferred to said new Landlord.
CARE OF FLOOR AND WINDOW COVERINGS
31.1 Supplementing Articles 5 and 21, Tenant shall take good care of
any and all floor and window coverings installed at any time in any portion of
Demised Premises, and Tenant shall make, as and when needed, all repairs in and
to the said coverings and shampoo and/or clean any of said coverings as
necessary (if in excess of normal janitorial maintenance) to preserve them in
good order, condition and appearance by persons approved by the Landlord. Upon
the expiration or other termination of the Term of this Lease, Tenant shall
surrender the said coverings to Landlord in as good order, condition and repair
as they were upon the installation thereof, ordinary wear excepted.
Supplementing Article 12, Landlord shall vacuum any carpets periodically.
MARGINAL NOTES
32.1 The marginal notes and headings are inserted only as a matter
of convenience and for reference and in no way define, Limit or describe the
scope or intent of this Lease nor do they in any way affect this Lease.
DEFINITIONS
33.1 The term "office," or "OFFICES," wherever used in this Lease,
shall not be construed to mean premises used as a store or stores, for the
sate, display or storage at any time, of goods, wares or merchandise of any
kind, or as a shop, or for manufacturing or for any purpose contrary to Rule
and Regulation No. 14. The term "Landlord" as used in this Lease means only
the owner or the mortgagee in possession or grantee in possession under a
deed of trust, or the owner of the Lease of the Building for the time being,
so that in the event of any sate or sales of said Land and/or Building or of
said Lease, or in the event of a Lease of said Land and/or Building, the same
Landlord shall be and hereby is entirety freed and relieved of all covenants
and obligations of Landlord hereunder, and it shall be deemed and construed
without further agreement between the parties or their successors-in-interest
or between the parties and the purchaser or the lessee of the Building has
assumed and agreed to carry out any and all covenants and obligations of
Landlord hereunder. The words "re-enter" and "re-entry" as used in this Lease
are not restricted to their technical legal meanings.
LANDLORD'S APPROVAL
34.1 The review, approval, inspection or examination by Landlord of any
item to be reviewed, approved, inspected or examined by Landlord under the terms
of this Lease or the Exhibits attached hereto shall not constitute the
assumption of any responsibility by Landlord for either the accuracy or
sufficiency or any such item or the quality or suitability of such item for its
intended use. Any such review, approval, inspection or examination by Landlord
is for the sole purpose of protecting Landlord's interests in the Building and
the Park and under this Lease, and no third parties, including, without
limitation Tenant or any person or entity claiming through or under Tenant, or
the contractors, agents, servants, employees, visitors or licensees of Tenant or
any such person or entity, shall have any rights hereunder.
BROKERAGE
35.1 Tenant represents and warrants that the broker or brokers
specified in Article 0 of Section 1 was (were) the sole broker or brokers who
negotiated and brought about the consummation of this Lease, and that no
discussions or negotiations were had with any other broker concerning the
Leasing of the Demised Premises. Based on the foregoing representation and
warranty, Landlord has agreed to pay any and all commission or compensation
due to said broker or brokers in connection with the consummation of this
Lease. Tenant agreed to indemnify and defend Landlord against and hold
Landlord harmless from any claims of brokerage commissions arising out of any
discussions or negotiations allegedly had by Tenant with any other broker.
21
BINDING EFFECT
36.1 All of the terms, conditions, provisions and agreements of this
Lease shall be deemed to be covenants. The covenants contained in this Lease
shall bind and inure to the benefit of Landlord and Tenant and their
respective Legal representatives and successors, and, except as otherwise
provided in this Lease, their assigns.
MISCELLANEOUS
37.1 This Lease is offered to Tenant for signature by Tenant and
this Lease shall not be binding upon Landlord unless and until such time as
Landlord shall have executed and delivered the same.
37.2 Tenant shall not at any time prior to or during the term
hereof, either directly or indirectly, use any contractors, Labor or
materials whose use would create any difficulty with other contractors or
labor engaged by Tenant or by Landlord or by others in the construction, main
tenancy or operation of Demised Premises or the Building or the Park.
37.3 If a partnership or more than one Legal person is at any time
Tenant, 0) each partner and each legal person is jointly and severally liable
for the keeping, observing and performing of all of the terms, covenants,
conditions, provisions and agreements of this Lease to be kept, observed or
performed by Tenant, and 00 by term "Tenant" as used in this Lease shall mean
and include each of them jointly and severally and the act of or notice from,
or notice or refund to, or the signature of, any one or more of them, with
respect to this Lease, including but not Limited to, any renewal, extension,
expiration, termination or modification of this Lease, shall be binding upon
each and all of the persons executing this Lease as Tenant with the same
force and effect as if each and all of them had so acted or so given or
received such notice or refund or so signed.
37.4 In addition to the Base Annual Rent and other charges to be
paid by Tenant hereunder, Tenant shall reimburse Landlord, upon demand, for
any and all taxes payable by Landlord (other than net income taxes) whether
or not now customary or within the contemplation of the parties hereto: M
upon, allocable to, or measured by the rent payable hereunder, including
without Limitation, any gross receipts tax or excise tax Levied by any
governmental or taxing body with respect to the receipt of such rent; or (ii)
upon or with respect to the possession, Leasing, operation, management,
maintenance, alteration, repair, use or occupancy by Tenant of Demised
Premises or any portion thereof; or (iii) upon the measured value of Tenant's
personal property located in Demised Premises or in any storeroom, garage or
any other place in Demised Premises or the Building or the Park, of the areas
used in connection with the operation of the Building, it being the intention
of the Landlord and Tenant that, to the extent possible, such personal
property taxes shall be billed to and paid directly by Tenant; or (iv) upon
this transaction, Taxes paid by Tenant pursuant to this Subsection 37.4 shall
not be included in any computation pursuant to Article 28.
37.5 This Lease shall be governed by and construed in accordance
with California Law
37.6 In the event any term, covenant, condition, provision or
agreement herein contained is held to be invalid or void by any court of
competent jurisdiction, the invalidity of any such term, covenant, condition,
provision or agreement shall in no way affect any other term, covenant,
condition, provision or agreement herein contained.
37.7 Landlord shall not be obligated to provide or maintain any
security patrol or security system. However, if Landlord elects to provide
such patrol or system, the cost thereof shall be included in Operating Costs
as defined in Article 28. Landlord shall not be responsible for the quality
of any such patrol or system which may be provided hereunder or for damage or
injury to Tenant, its employees, invitees or others due to the failure,
action or inaction of such patrol or system, except for damage or injury
arising out of Landlord's gross negligence or willful misconduct.
37.8 Any basement storage space or other storage space at
any time demised to Tenant hereunder shall be used exclusively for storage.
Notwithstanding any other provision of this Lease to the contrary, (i) only
such ventilation and heating will be furnished by Landlord as will, in
Landlord's judgement, be adequate for use of said space for storage, (ii) no
cleaning, water or air conditioning will be furnished therefor, and (iii)
only such electricity
22
will be furnished thereto as will, in Landlord's judgement, be adequate to
Light said space as storage space.
37.9 Time is of the essence with respect to the performance
of each and every provision of this Lease to be performed by Tenant.
37.10 Neither this Lease, nor any notice or memorandum regarding the
terms hereof, shall be recorded by Tenant. Any such unauthorized recording
shall give Landlord the right to declare a breach of this Lease and pursue
the remedies provided herein. Tenant agrees to execute and acknowledge, at
the request of Landlord a short form of this Lease in recordable form.
37.11 If the name of Tenant or any successor or assign shall be
changed during the term of this Lease, such party shall promptly notify
Landlord thereof, which notice shall be accompanied by a certified copy of
the document effecting such change of name.
37.12 Tenant shall at any time and from time to time upon not less
than ten (10) days' prior notice from Landlord execute, acknowledge and
deliver to Landlord a statement in writing certifying to those facts for
which certification has been requested by Landlord or any current or
prospective purchaser, mortgagee (or beneficiary under a deed of trust) or
underlying Lessor, including without limitation (i) that this Lease is
unmodified and in full force and effect (or, if modified, adequately
identifying such modification and certifying that this Lease, as so modified,
is in full force and effect) and (ii) the dates to which the Base Annual
Rent, additional payments and other charges are paid and (M) whether or not
there is any default by Landlord or Tenant in the performance of any term,
covenant, condition, provision or agreement contained in this Lease and
further whether or not there are any setoffs, defenses or counterclaims
against enforcement of the obligations to be performed under this Lease and,
if there are, specifying each such default, setoff, defense or counterclaim.
Any such statement may be conclusively relied upon on by any prospective
purchaser or Lessee or encumbrancer of Demised Premises or of all or any
portion of the Building or the Park. Tenant's failure to deliver such
statement within such time shall be deemed a statement that this Lease is in
full force and effect, without modification except as may be represented by
Landlord, that there are no uncured defaults in Landlord's performance, and
that not more than one month's Base Annual Rent has been paid in advance.
37.13 If, at any time during the Term of this Lease, the holder of
Landlord's interest hereunder is a partnership or joint venture, Tenant
agrees to Look only to the assets of such partnership or joint venture and
not to the partners of joint ventures personally with respect to any
obligation or payments due or which may become due from Landlord hereunder. A
deficit in the capital account of any partner or joint venture shall not be
considered an asset of such partnership or joint venture.
37.14 The rights of Tenant hereunder in and to the Common Area shall
at all times be subject to the rights of the Landlord and other tenants of
Landlord who use the same in common with Tenant, and it shall be the duty of
Tenant to keep all of the Common Areas free and clear of any obstructions
created or permitted by Tenant or resulting from Tenant's operation and to
permit the use of any of the Common Areas only for normal parking and ingress
and egress by the invitees of Tenant and from the Building. If, in the
opinion of Landlord, unauthorized persons are using the Common Areas by
reason of the presence of Tenant in Demised Premises, Tenant, upon demand of
Landlord, shall correct such situation by appropriate action or proceedings
against all such unauthorized persons. Nothing herein shall affect the right
of Landlord at any time to remove any such unauthorized persons from said
areas or to prevent the use of any of said areas by unauthorized persons.
37.15 If, as a result of any governmental rule or regulation,
Landlord imposes a curtailment of services or equipment in the Park, Demised
Premises or the Building, Tenant shall comply therewith and shall be Liable to
Landlord for any surcharge imposed for any violation by Tenant.
37.16 If Tenant is at any time in default in the payment of
any sum of money pursuant to the terms, covenants, conditions, provisions or
agreements of this Lease or pursuant to any order now or hereafter placed by
Tenant with Landlord (including without Limitation charges for any materials or
services or construction work furnished to Tenant by Landlord) with respect to
Demised Premises over and above or in addition to or in lieu of the Base Annual
Rent (or any installment thereof), Landlord shall have all the remedies as in
the case of default by Tenant
23
in the payment of an installment of the Base Annual Rent.
37.17 If Tenant signs as a corporation or a partnership, each of the
persons executing this Lease on behalf of Tenant does hereby covenant and
warrant that Tenant is a duty authorized and existing entity, that Tenant has
and is qualified to do business in California, that Tenant has full right and
authority to enter into this Lease, and that each and every person signing on
behalf of Tenant is authorized to do so. Upon Landlord's request, Tenant
shall provide Landlord with evidence satisfactory to Landlord confirming the
foregoing covenants and warranties.
37.18 In the event that either Landlord or Tenant fails to perform
any of its obligations under this Lease or in the event a dispute arises
concerning the meaning or interpretation of any provision of this Lease, the
basis of the dispute shall be settled by judicial proceedings and the
defaulting party or the party not prevailing in such dispute, as the case may
be, shall pay any and all costs and expenses incurred by the other party in
enforcing or establishing its rights hereunder, including without Limitation,
court costs and attorneys' fees.
Any rider or exhibit annexed hereto is made a part hereof.
IN WITNESS WHEREOF, Landlord and Tenant have respectively executed this
Lease as of the day and year first above written.
LANDLORD: Newport Place Associates,
a California Limited Partnership
By: MIC Newport Place,
a California Limited Partnership
Its: General Partner
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------
Xxxxx X. Xxxxxx, general partner
TENANT: HomeLife Realty Services, Inc.,
A Delaware Corporation
By: /s/ Xxxx Xxxxxx
-------------------------------------------
Xxxx Xxxxxx
Its: Executive Vice President/General Manager
24
EXHIBIT A
GENERAL NOTES;
1 ALL FURNITURE ON PLAN BY TENANT U.N.O.
2. CEILING GRID AND TILE TO BE BUILDING STANDARD.
3. PAINT TO BE BUILDING. STANDARD THROUGHOUT, EXCEPT ROOM 710.
4, BUILDING STANDARD CARPET AND STRAIGHT BASE THROUGHOUT, EXCEPT ROOM 702.
NOTES AND LEGEND
PROVIDE OPENING FOR NEW BUILDING STANDARD SUITE ENTRY DOOR/FRAME ASSEMBLY.
INCANDESCENT WALL WASHERS (ALLOWANCE OF 9).
BUILDING STANDARD FULL HEIGHT 18" WIDE SIDELIGHT,
PROVIDE BUILDING STANDARD PLASTIC LAMINATE COUNTER (5'-0') WITH DRAWERS,
SINK, AND DISPOSAL.
PROVIDE BUILDING STANDARD PLASTIC LAMINATE UPPERS (8'-0-) WITH ADJUSTABLE
SHELVES.
PROVIDE BUILDING STANDARD PLASTIC LAMINATE COUNTER (APPROX. 8'-0-) ASSEMBLY
AT Y-O"A.F.F. PROVIDE (2) GROMMETS
PROVIDE METAL BACKING WITHIN WALL CAVITY. (ROOM 702 SIDE) FOR EXTRA SUPPORT
FOR COUNTER.
PROVIDE BUILDING STANDARD INTERIOR DOOR/FRAME ASSEMBLY.
POLYOLEFIN WALLCOVERING ON ALL WALLS. ROOM 710.
BUILDING STANDARD VINYL COMPOSITION TILE WITH COVE BASE. ROOM 702.
LEGEND
EXISTING PARTITION TO RENWN
NEW PARTITION
I-HOUR RATED DEMISING PARTITION
DUPLEX OUTLET I
DUPLEX OUTLET - SEPARATE CIRCUIT
TELEPHONE OUTLET
EXHIBIT B
WORK LETTER AND CONSTRUCTION AGREEMENT
This agreement supplements the Lease dated April 12, 1990, executed
concurrently herewith by Newport Place Associates as Landlord and HomeLife
Realty Services, Inc. as Tenant.
1 . Tenant shall devote such time as may be necessary to enable
Landlord to complete and obtain Tenant's written approval, and approval by
appropriate government authorities by May 14, 1990 of the final Layout and plans
for Tenant's premises, using Landlord's Standard Installation, including, among
other things, the Location of standard partitions, doors, Light fixtures,
electrical outlets, telephone outlets and other standard installations required
by Tenant, as well as wall finishes and floor coverings. Construction drawings,
satisfactory to Landlord, for special installation shall be furnished by Tenant,
who shall be responsible for the design, function and maintenance of such
special improvements.
2. Landlord's Standard Installations, not to exceed the following,
shall be supplied and installed in Tenant's premises, other than storage
space, at Landlord's expense. For the purposes of this section, the square
footage is agreed to be 2,287 square feet. Landlord shall construct, at its
cost, the following Building Standard items of work. The modifications to
said items shall be at Tenant's cost. Said improvements shall generally be in
accordance with the following specifications as to quality and materials:
COMMON CORRIDOR
A. CORRIDOR PARTITION (STAB TO STAB)
1. 3-5/8" 25-gauge metal studs, 24" on center, with seismic
bracing as required.
2. 5/8" Type "X" drywall, one (1) Layer each side of studs.
3. Partition taped smooth and sanded from floor to ceiling to
receive paint or wall covering.
4. All straight-line terminations to existing building
surfaces.
B. CORRIDOR CEILING (DRYWALL LID)
1. Corridor finish ceiling to be 6'-0", wide non-rated drywall
Lid with single Layer 5/8", Type "X" drywall. Taped smooth to receive
paint. Seismic bracing as required.
2. 2-1/2", 25-gauge metal studs, 24" on center, with seismic
bracing as required.
3. Framing for recessed Light fixtures and HVAC penetrations is
included.
4. Ceiling height 9'-0" above concrete floor.
5. paint "Ameritone", 190H (NIC).
C. ALTERNATE CORRIDOR CEILING
1. Corridor finish ceiling to be 6'0", wide drywall Lid of
horizontal shaft assembly approximately 2-1/2" thick, 1" shaft wall
Liner inserted in minimum 25-gauge C-H studs, 24" on center with single
Layer 5/8" Type "X" drywall. Taped smooth to receive paint. Seismic
bracing as required.
D. CORRIDOR LIGHT FIXTURE
1. 2' x 2' (finish drywall) housing type.
2. Warm white fluorescent U-tubes, two (2) each, #F40/WW/U/3/WM,
as manufactured by G.E
3. Lithonia 9 Cell, 3" Deep 277V, energy saving ballasts.
4. Earthquake clips and wire.
5. No supply or return air capability.
1
E. EXIT SIGNS (SELF ILLUMINATED)
1. Isolite - black faced with green Letters.
F. CARPET AND BASE
To be determined.
G. WALLCOVERING
1. "Maharam" vertical surfaces, TEK wall.
2. Color #01 Xxxxx.
H. FIRE SPRINKLERS
1. Drop heads from existing distribution.
2. Adjustable heads, centered in corridor.
3. Concealed heads with flush sensor place, custom color, Phantom
Model PH-1 decorative sprinkler by Star Sprinkler Corporation. Custom color
to match Ameritone 190 H on sensor plate.
TENANT AREA
DEMISING PARTITION
1. 2-1/2" 25-gauge metal studs, 24" on center, with
seismic bracing as required.
2. 5/8" Type "X" drywall, one (1) layer each side
of studs.
3. Height from floor stab to under side of ceiling
grid.
4. Partition taped smooth from floor to ceiling and
sanded to receive paint or wallcovering.
5. Partition cavity insulation Xxxxx Corning "Noise Barrier"
2-1/2" R-11 xxxxx. Ceiling insulation to occur 4'-0" each side of
partition and to be Xxxxx Corning "Sono Xxxxx" F.S. 25 foil face (up),
3-1/2" R-11.
6. Stagger and caulk around electrical outlet and other boxes,
caulk around conduit and other through-the-wall penetrations.
7. Straight tine termination at building column only. Sound
seated gasket closure at mullion termination. No screwing into
mullions allowed.
8. Secure bottom channel with 1/4", shot pins at 4'-0" on center
and 6" from corner.
9. Lateral bracing, 25-gauge ASTM C 645 material, to be attached
to the partition with #8 sheet metal screws at 8'-0" on center. The
brace is to be placed at an angle of 45 degrees to the horizontal plane
ceiling.
X. XXXXXXXXX
1. Remove existing drywall as required for electrical work. Reinstall
and tape smooth from floor to windowsill. If no electrical work is
required, tape smooth from floor to window silt.
C. INTERIOR PARTITION
1. 2-1/2" 25-gauge metal studs, 24" on center, with seismic bracing
unless otherwise noted.
2. 5/8" Type "X" drywall, one (1) Layer each side of studs.
3. Height from floor stab to ceiling grid 9'-0".
4. Partition taped smooth and sanded to receive paint or wallcovering.
5. "L" metal at termination of partition at ceiling.
6. Straight-line termination at building columns. Sound seated gasket
closure at mullion termination.
2
D. AREA DEMISING PARTITION (100 OCCUPANTS/10,000 SF)
1. 3-5/8", 25-gauge metal studs, 24", on center, from floor to
structure above, with seismic bracing as required.
2. 5/8" Type "X" drywall, one (1) Layer each side of studs (slab to
stab).
3. Partition taped smooth and sanded from floor to ceiling to receive
paint or wallcovering. Fire tape from ceiling to stab above.
4. Straight Line termination at building columns and existing xxxxx.
Sound seated gasket closure at mullion termination (Detail 36). No
screwing into mullions allowed.
E. CORRIDOR
1. All doors shall be 3'-0" x 9'-0" plain slice Honduras mahogany
x 1-3/4". Doors to be solid core flush premium grade with matching
hardwood edges, prefinish to match building standard sample. 20-minute
fire-rated with rating Label attached to hinge side of door (balance
match pairs as occurs).
2. 3' -0" x 9' -0" x 3-3/4" throat. Aluminum doorframe by "Advanced
Architectural Frames" 20-minute fire-rated with attached to hinge side
of frame, painted finish. Color to be black. "Schlage #69453-03A
mortise Lockset, same finish both sides, US32 polished stainless steel
4011 A.F.F. to center Line of Lever.
4-1/2", x 4-1/2", Ball Bearing hinges XX-0000 ("Xxxxxxx", "Xxxx", and
"XxXxxxxx" are acceptable alternates). Butt hinges, two (2) pair.
Finish to match Lever.
5. "Norton #8501 (or approved equal) parallel arm door closer. Finish
to be aluminum. "Quality" #331 floor stop for doors without thresholds.
Finish to match Lever.
F. INTERIOR DOOR
1. 3'-0", x 9'-0", x 1-3/4" solid core flush premium grade plain slice
Honduras mahogany with matching hardwood edges, prefinished to match
building standard sample.
2. 3'-0" x 9'-0" x 3-3/4" factory painted aluminum frame by "Advanced
Architectural Frames", painted finish. Color to be black.
3. "Schlage" #L9010-03A Latchset as specified, same finish both sides,
US 32 polished stainless steel, 4011 A.F.F. to center tine of Lever
(see Detail 8).
4. 4-1/2" x 4-1/2", butt hinges, 2 pair. Same finish as Lever.
5. Quality #331 floor stop - same finish as Lever.
G. LIGHT FIXTURES
1. 2' x 4' Ultraline (slot grid) housing-type throughout Tenant
premises.
2. Warm white fluorescent tubes, three (3) Lamps, as
manufactured by G.E., #F4/WW/RSWM, 34-watt.
3. Lithonia "Paralux" 2PM3GB340-18-d-2T7-ES, 18-cell, 3", deep cell,
return air slots, 277V, energy-saving batlasts.
4. Earthquake clips and wire.
Acoustic Ceiling
1. "Chicago Metallic" Ultraline intermediate duty, 1/8" reveal in
steel grid with white reveal, throughout Tenant premises.
2. Partition attachment clips.
3. Tile, "Celotex" Cashmere 2' x 2' x 3/4" Cirrus edge. Must specify
40-4 STC.
4. Ceiling height 9'-0" above concrete slab, Floors 2 through 9.
1. FIRE SPRINKLERS
1. Drops and heads from existing distribution.
2. Adjustable heads.
3
3. Semi-recessed heads, Model "H" 1/2" orifice with white enamel trim,
by Central
4. Sprinkler corporation. Locate in center of ceiling tile.
J. PAINT
1. Minimum two (2) coats of flat Latex paint to cover.
2. Building standard color.
K. CARPET
1. "MacArthur" Design Weave Xxxxxxx 00 0000 Xxxxxxx Nylon, 1/10 gauge, cut
pile over 3/8", Barony pad.
L. BASE
1. 2-1/2", rubber straight base, color varies with carpet selection.
M. WINDOW COVERINGS
1. Mini-blinds, "Levelor", color "Xxxxx" #818.
2. Sized to fit within each pane of glass within mullion.
3. To be installed per manufacturer's recommendations.
N. ELECTRICAL WALL OUTLET
1. Leviton #16342-I, self-grounding or equal, duplex receptacle.
2. Color to be Ivory.
3. 11OV, 20-amp, non-dedicated wall mount, standard.
4. Mounted vertically 1211 A.F.F. to center of outlet.
5. Quadriplex 4S junction box with duplex outlet converter plate at
secretariat and office Locations.
O. TITLE 24 SWITCH
1. Leviton Decora #5601, double switched where applicable, color Ivory.
2. Switches paired in double gang box to meet Title 24 requirements.
3. Height 4011 A.F.F. to center Line of switch (Detail 8).
P. LIGHT CONTROL SYSTEM AT LANDLORDS DISCRETION
1. Light control sensor 277-volt
Light-o-Matic
a. Wall mounted at offices.
b. Ceiling mounted at open areas.
2. Teflon wire, control relay, and transformer.
3. All lighting may, at Landlord's option, be controlled through the
building's central energy management system.
Q. TELEPHONE WATT OUTLET
1. Single gang box in wall vertically mounted.
2. 3/4" metal conduit from outlet box stub-up conduit and putt wire to
7-1/2" above ceiling. Plenum rated cable or conduit to telephone
backboard by Tenant.
3. Cover plate by telephone company, match other plates (ivory).
4. Outlet height at 12" A.F.F. to center Line of outlet (Detail 8).
4
R . HVAC
1. 2' x 2' Supply air registers, perforated face diffuser.
2. 2' x 2' return air grilles, perforated face diffuser.
3. Thermostats Located per zone requirements. 60" A.F.F. to center
Line. Center above light switches where appropriate.
4. The HVAC distribution and energy management system as typically
designed by Landlord's engineer to meet normal HVAC requirements
will be Tenant allowance. All Tenant requests or requirements
adding additional zones, 24-hour conditioning, exhaust fans,
etc., will be Tenant over-standard work.
3. Tenant's Premises
A. Tenant may require work different from or in addition to Landlord's
Standard Installations. In such event, any architectural, mechanical, electrical
and structural engineering drawings, plans and specifications required shall be
prepared by Landlord's architect, space designer or engineer at Tenant's expense
and shall subject to the approval of Landlord. If Tenant selects interior finish
items such as wall paint, covering, fixtures and carpeting other than Landlord's
Standard Installations, Tenant shall notify Landlord of all such selections in
writing. All interior decorating items and services selected by Tenant in excess
of Landlord's Standard Installations, shall be provided by Tenant at Tenant's
sole cost and expense. Whether, and the extent to which, any of Tenant's
requirements constitute non-building standard work or otherwise exceed
Landlord's Standard Installations, shall be determined by Landlord's architect,
space designer, or engineer, which determination shall be conclusive.
B. Promptly upon completion of such plans (including revisions),
Landlord shall notify Tenant in writing of the costs to Tenant for quantities in
excess of Landlord's Standard Installations, as described in Paragraph 2 above.
Tenant shall sign the working drawings within the time set forth in Paragraph I
above, give Landlord authorization to complete the Premises in accordance with
such Layout and plans, and shall accompany said authorization with a check made
out to Landlord in the amount of Tenant's cost for the authorized excess of
Landlord's standards. Tenant may, in such authorization, delete any or all of
such items of extra cost. If such written authorization and check are not
received by Landlord, Landlord shall not be obligated to commence work on
Tenant's Premises, and Tenant shall be chargeable with any delay in the
completion of the Premises resulting therefrom.
C. If the completion of Landlord's work in Tenant's Premises is delayed
by Tenant's failure to comply with the foregoing provisions, or by Tenant's
requirement of materials or installations different from Landlord's Standard
Installations, or by changes in the work ordered by Tenant or by extra work
ordered by Tenant, or because Tenant chooses to have additional work performed
by Landlord, then the rent shall commence to accrue on the Commencement Date as
specified in Article G of Section 1 of said Lease. Under no circumstances shall
Landlord be chargeable with any delay because of non-building standard work.
D. Landlord shall be required to complete Landlord's Standard
Installations in the Premises for Tenant at the expiration of six (6) weeks
after the delivery to Landlord of Tenant's signed working drawings and receipt
of approval of said drawings by the appropriate government authorities. If such
signed and approved working drawings are not received by the Landlord at Least
six (6) weeks prior to the Commencement Date specified in Article G of section 1
of said Lease, then the rent shall commence to accrue on said Commencement Date.
E. If Tenant shall request any change, addition or alteration in
approved working drawings, Landlord shall promptly give Tenant a written
estimate of the cost of engineering and design services to prepare working
drawings in accordance with such request and the time delay expected because of
such request. if Tenant, in writing, approves such written estimate, Landlord
shall have working drawings prepared and Tenant shall promptly reimburse
Landlord for the cost thereof. Promptly upon the completion of such working
drawings, Landlord shall notify Tenant in writing of the cost, which will be
chargeable to Tenant by reason of such change, addition or deletion. Tenant
shall, within three (3) business days, notify Landlord in writing whether it
desires to proceed with such change, addition or deletion, and in the absence of
such written authorization. Tenant shall be chargeable with any delay in the
completion of the Premises resulting therefrom and rent shall commence to accrue
as set forth in Paragraph 2 above.
F. In the event Tenant requests that any portion of the work to be
performed by Landlord be delayed, Tenant
5
shall pay all costs and any expenses occasioned by such delay including, without
limitation, any costs and expenses attributable to increases in Labor or
materials.
G. If plans and specifications for Tenant's Premises construction shall
require Landlord's Standard Installation(s) in quantities greater than provided
in this Construction Agreement, reasonable substitution may be made of any
standard item(s) listed, with any other standard items(s) so Listed, provided
that it is specifically understood and agreed that if such substitution shall
result in a total cost exceeding Landlord's budget for improvements of Tenant's
Premises, Tenant shall pay to Landlord the amount of such additional cost as
provided in Paragraph 3B above.
H. It is specifically acknowledged that portions of the Building and
common areas may not be completed on or prior to the Commencement Date, without
Liability of Landlord to Tenant, and without any abatement or reduction in rent.
1. Without Limiting the generality of Articles 4 and 23 of the Lease, any
and all Tenant improvements shall at once become and remain the property of
Landlord.
J. If Tenant requests to perform any alterations, additions or improvements
(the "Work") and Landlord consents to such requests, the following terms and
conditions shall apply to all such Work:
(1) All costs and expenses in connection with or arising out of the
performance of the Work shall be borne by Tenant and all payments therefore
shall be made by Tenant promptly as they become due. At no time shall Tenant do
or permit anything to be done whereby the Building or the land upon which it is
located may be subjected to any mechanic's or other Liens or encumbrances
arising out of the Work. Tenant shall notify Landlord in writing not Less than
ten (10) days prior to the commencement of any Work in order to afford Landlord
an opportunity to post and record appropriate notices of non-responsibility with
reference to the Work. Prior to the commencement of any Work, and from time to
time whenever requested by Landlord, Tenant will deliver to Landlord waivers of
mechanic's Liens duty executed by all contractors and all Laborers or material
persons concerned with said Work. At any time so requested by Landlord, Tenant
will, at Tenant's expense, and as Landlord requires, provide and furnish to
Landlord either (a) surety company bond(s), or (b) court order(s) discharging
Lien, or (c) such other form of protection satisfactory to Landlord against any
Liens or encumbrances which may be filed.
(2) All materials and processes used in the performance of the Work
shall conform to the standards and Rules and Regulations of the Building and
Tenant hereby assures Landlord that each of Tenant's contractors is or will be
entirely familiar with such requirements prior to commencement of any Work. No
Work shall proceed without the submission of detailed plans and specifications
for such requirements prior to commencement of any work. No Work shall proceed
without the submission of detailed plans and specifications for such Work for
approval by Landlord. Once Tenant has commenced the Work, Tenant will promptly,
diligently and continuously pursue the same to successful completion in full
compliance with the approved plans and specifications.
(3) Tenant will perform all Work in a safe and Lawful manner using only
contractors approved by Landlord. Tenant shall at its sole expense comply with
all applicable Laws and all regulations and requirements of municipal or other
governmental bodies exercising authority over the building or the work and this
compliance shall include the filing of plans and other documents as required and
the procuring of all required Licenses or permits. Copies of all filed documents
and all permits and Licenses shall be provided to Landlord for Landlord's
approval. Any Work not acceptable to the Department of Building and Safety, or
not reasonably satisfactory to Landlord, shall be promptly replaced at Tenant's
expense. Notwithstanding any failure by Landlord to object to any such Work,
Landlord shall have no responsibility therefore. Tenant shall notify Landlord in
writing not Less than ten (10) days prior to the commencement of any Work as to
name, telephone number and responsible party for each and every contractor
and/or subcontractor who is about to commence Work.
(4) Tenant hereby indemnifies and agrees to defend and hold Landlord
harmless from and against any and all suits, claims, actions, losses, costs or
expenses (including claims for Worker's Compensation) of any nature whatsoever
together with attorneys' fees for counsel of Landlord's choice arising out of or
in connection with the Work or the performance of the Work (including but not
Limited to claims for breach of warranty, personal injury
6
or property damage). Landlord shall have the right in Landlord's sole and
exclusive discretion, to settle, compromise, or otherwise dispose of any and all
suits, claims, and actions.
(5) No Work shall proceed without Worker's Compensation and public
Liability insurance and property damage insurance, at (in amounts and with
companies and on forms satisfactory to Landlord and, if Landlord shall so
request, naming Landlord as additional insured. Not Less than thirty (30) days
before commencing the Work, certificates of such insurance shall be furnished to
Landlord or, if requested, the original policies thereof shall be submitted for
Landlord's approval. ALL such policies shall provide that thirty (30) days,
notice must be given to Landlord before terminating or cancellation. In
addition, no Work shall proceed without Tenant's contractor providing payment
and performance bond(s) satisfactory to Landlord.
(6) Landlord shall have no responsibility for the Work and Tenant will
remedy at Tenant's own expense and be responsible for any and all defects in all
such Work that may appear during or after the completion thereof whether the
same shall affect the premises in particular or any parts of the Building in
general. Tenant shall reimburse Landlord for any extra expense incurred by
Landlord by reason of faulty work done by Tenant or Tenant's contractors, by
reason of delays caused by such Work, or by reason of inadequate cleanup.
(7) If the performance of the Work shall require that additional
services or facilities (including but not Limited to extra elevator services,
hoisting, cleanup or other cleaning services, trash removal, field supervision,
or ordering of materials) be provided, Tenant shall pay Landlord a reasonable
charge therefore together with twenty percent (20%) for Landlord's supervision
and overhead. If Tenant employs Landlord at Tenant's expense to perform any
portion of the Work and thereafter elects to itself (through a subcontractor
selected by Tenant but approved by Landlord) perform any component of such
portion (including, but without Limiting the generality of the foregoing,
finishes or overstandard items), then Tenant shall pay Landlord ten percent
(10%) of such subcontractor's total xxxx as and for Landlord's supervision and
overhead.
(8) All of Tenant's contractors, subcontractors, employees, servants
and agents must work in harmony with and shall not interfere with any labor
employed by Landlord, or Landlord's contractors or by any other tenant or its
contractors.
(9) All Work performed by Tenant or Tenant's contractors shall be
scheduled through Landlord and shall be performed on weekdays, Monday through
Friday, or other times which Landlord specifies. Any Work to be performed at
other times or in adjacent tenant's areas shall be pursued only after obtaining
Landlord's express written permission and shall be done only if an agent of
employee of Landlord is present; Tenant will reimburse Landlord for the expense
of any such employee or agent.
(10) All core drilling, concrete cutting, demolition of partitions or
removal of rubbish, shall be done between the hours of 7:00 p.m. and 6:00 a.m.,
or other times which Landlord specifies.
(11) If any shut down of plumbing, electrical, or air conditioning
equipment becomes necessary, Tenant shall notify Landlord and Landlord will
determine when such shutdown may be made. Any such shut down shall be done only
if agent or employee of Landlord is present. Tenant will reimburse Landlord for
the expense of any such employee or agent.
(12) Any noise complaints by tenants of adjacent areas are to be
remedied immediately or alteration operations are to cease until said noise is
abated.
(13) Tenant or Tenant's contractors will in no event be allowed to
install plumbing, mechanical, electrical wiring or fixtures, acoustical or
integrated ceilings, unless prior written approval is obtained from Landlord. In
addition to the foregoing, at I data processing and other special electrical
equipment shall be installed only under the supervision of Landlord or
Landlord's electrical contractor.
(14) Notwithstanding Paragraph (13), Tenant agrees to be entirety
responsible for the maintenance or the balancing of any heating, ventilating or
air conditioning system installed by Tenant and/or maintenance of the electrical
or plumbing Work installed by Tenant and/or maintenance of lighting fixtures,
partitions, doors, hardware
7
or any other installations made by Tenant. Such maintenance shall be performed
only by a contractor or contractors approved in writing in advance by Landlord.
(15) Any hardware, light fixtures or any heating, ventilating or air
conditioning installations (the "Installations" ) installed in the premises
which Tenant permanently removes, shall be stored by Tenant where directed by
Landlord. No such removal may be made unless shown on the plans and
specifications approved by Landlord. Tenant agrees, at Tenant's expense, to
reinstall any or all such installations at the expiration of the Term should
Landlord so require.
(16) Landlord expressly reserves the right to revoke consent upon
notice to Tenant in the event of a breach of any of the terms or conditions
herein, in which case all Work shall immediately cease to the extent directed by
Landlord in such notice.
(17) Nothing herein contained shall be construed as (a) constituting
Tenant as Landlord's agent for any purpose whatsoever or (b) a waiver by
Landlord of any of the terms or provisions of the Lease. Any default by Tenant
with respect to any portion of this Exhibit "B" Construction Agreement shall, at
Landlord's option, be deemed a breach of the Lease as to which Landlord shall
have all the rights and remedies as in the case of a breach of said Lease.
HOMELIFE REALTY SERVICES, INC.,
a Delaware Corporation
By: /s/ Xxx Corner
-------------------------------
Xxx Corner
Its: Executive Vice President/General Manager
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EXHIBIT C
LEGAL DESCRIPTION
Parcel 1 of Parcel Map No. 88-174 in the City of Newport Beach, County of
Orange, State of California, as per Map recorded on October 31, 1988 in Book
238, Pages 5 and 6 of Parcel Maps, Records of Orange County, California.
EXHIBIT D
RULES AND REGULATIONS
1. No sidewalks, entrance, passages, courts, elevators, vestibules,
stairways, corridors or halts shall be obstructed or encumbered by
Tenant or used for any purpose other than ingress and egress to and
fromDemised Premises or the Building and if Demised Premises is
situated on the ground floor of the Building. Tenant shall further,
at Tenant's own expense, keep the sidewalks and curb directly in front
of DemisedPremises clean and free from rubbish.
2. No awning or other projection shall be attached to the outside waits
or windows of the Building without the prior written consent of
Landlord. No curtains, blinds, shades, drapes or screens shall be
attached to or hung in, or used in connection with any window or door
of Demised Premises, without the prior written consent of Landlord.
Such awnings, projections, curtains, blinds, shades, drapes, screens
and other fixtures must be of a quality, type, design, color, material
and general appearance approved by Landlord, and shall be attached in
the manner approved by Landlord. All electrical fixtures hung in
offices or spaces along the perimeter of Demised Premises must be
fluorescent, of a quality, type, design, bulb color, size and general
appearance approved by Landlord.
3. No sign, advertisement, notice or other Lettering shall be exhibited,
inscribed, painted or affixed by Tenant on any part of the outside or
inside of Demised Premises or of the Building, without the prior
written consent of Landlord. In the event of the violation of the
foregoing by Tenant, Landlord may remove same without any liability,
and may charge the expense incurred by such removal to Tenant. Interior
signs on doors and directory tablet shall be inscribed, painted or
affixed for Tenant by Landlord at the expense of Tenant, and shall be
of a quality, quantity, type, design, color, size, style, composition,
material, Location and general appearance acceptable to Landlord.
4. The sashes, sash doors, skylights, windows, and doors that reflect or
admit Light or air into the halls, passageways or other public pieces
in the Building shall not be covered or obstructed by Tenant, nor shall
any bottles, parcels, or other articles be pieced on the window xxxxx,
or in the public portions of the Building.
5. No show cases or other articles shall be put in front of or affixed to
any part of the exterior of the Building, nor placed in public portions
thereof without the prior written consent of Landlord.
6. The water and wash closets and other plumbing fixtures shall not be
used for any purpose other than those for which they were constructed,
and no sweepings, rubbish, rags or other substances shall be thrown
therein. ALL damages resulting from any misuse of the fixtures shall be
borne by Tenant to the extent that Tenant or Tenant's agents, servants,
employees, contractors, visitors or Licensees shall have caused the
same.
7. Tenant shall not xxxx, paint, drill into or in any way deface any part
of Demised Premises or the Building. No boring, cutting or stringing
of wires shall be permitted, except with the prior written consent of
Landlord, and as Landlord may direct.
8. No animal or bird of any kind shall be brought into or kept in or about
Demised Premises or the Xxx Wing.
9. Prior to leaving Demised Premises for the day Tenant shall draw or
lower window covering and extinguish all Lights.
10. Tenant shall not make, or permit to be made, any unseemly or disturbing
noises or disturb or interfere with occupants of the Xxx Wing or
neighboring buildings or premises or those having business with them.
Tenant shall not throw anything out of the doors, windows or skylights
or down the passageways.
11. Neither Tenant nor any of Tenant's agents, servants, employees,
contractors, visitors or Licensees shall at any time bring or keep upon
Demised Premises any inflammable, combustible, or explosive fluid,
chemical
1
or substance.
12. No additional Locks, bolts or mail slots of any kind shall be placed
upon any of the doors or windows by Tenant, nor shall any change be
made in existing Locks or the mechanism thereof. Tenant must, upon the
termination of the tenancy, restore to Landlord all keys of stores,
offices and toilet rooms, either furnished to, or otherwise procured
by Tenant, and in the event of the Loss of any keys so furnished,
Tenant shall pay to Landlord the cost thereof.
13. All removals, or the carrying in or out of any safes, freight,
furniture, fixtures, bulky matter or heavy equipment of any description
must take place during the hours which Landlord or its agent may
determine from time to time. Landlord reserves the right to prescribe
the weights and position of all safes, which must be placed upon
two-inch thick plank strips to distribute the weight. The moving of
safes, freight, furniture, fixtures, bulky matter or heavy equipment of
any kind must be made upon previous notice to the Superintendent of the
Building and in a manner and at times prescribed by him, and the
persons employed by Tenant for such work are subject to Landlord's
prior approval. Landlord reserves the right to inspect all safes,
freight or other bulky articles to be brought into the Building and to
exclude from the Building all safes, freight or other bulky articles
which violate any of these Rules and Regulations or the Lease of which
these Rules and Regulations are a part.
14. Tenants shall not occupy or permit any portion of Demised Premises
to be occupied as an office that is not generally consistent with the
character and nature of all other tenancies in the Building, or is (a) for an
employment agency, in public stenographer or typist, a labor union office, a
physician's or dentist's office, a dance or music studio, a school, a beauty
salon or xxxxxx shop, the business of photographic or multilith or multigraph
reproductions or offset printing (not precluding using any part of demised
premises for photographic, mutilith or multigraph reproductions solely in
connection with Tenant's own business and/or activities), a restaurant or
bar, an establishment for the sale of confectionery or soda or beverages or
sandwiches or ice cream or baked goods, an establishment for the preparation
or dispensing or consumption of food or beverages (of any kind) in manner
whatsoever, or as a news or cigar stand, or as a radio or television or
recording studio, theater or exhibition halt, for manufacturing, for the
storage of merchandise or for the sale of merchandise, goods or property of
any kind at auction, or for Lodging, steeping or for any immoral purpose, or
for any business which would tend to generate a Large amount of foot traffic
in or about the Building or the Land upon which it is Located, or any of the
areas used in the operation of the Building, including but not Limited to any
use (i) for a banking, trust company, depository, guarantee, or safe deposit
business, (ii) as a savings bank, or as savings and loan association, or as a
Loan company, (iii) for the sale of travelers checks, money orders, drafts,
foreign exchange or Letters of credit or for the receipt of money for
transmission, (iv) as a stock broker's or dealer's office or for the
underwriting of securities, or, (v) a government office or foreign embassy or
consulate, or (vi) tourist or travel bureau, or (b) a use which conflicts
with any so-called "exclusive" then in favor of, or is for any use the same
as that stated in any percentage Lease to, another tenant of the Building or
the Park, or (c) a use which would be prohibited by any other portion of this
Lease (including but not Limited to any Rules and Regulations then in effect)
or in violation of Law. Tenant shall not engage or pay any employees on
Demised Premises, except those actually working for Tenant on Demised
Premises nor shall Tenant advertise for Laborers giving an address at Demised
Premises.
15. Landlord shall have the right to prohibit any advertising or
business conducted by Tenant referring to the Building or the Park, which, in
Landlord's opinion, tends to impair the reputation of the Building or its
desirability as a first class building for offices, or the Park, and upon
notice from Landlord, Tenant shall refrain from or discontinue such
advertising.
16. Landlord reserves the right to exclude from the Building between the
hours of 6:00 p.m. and 8:00 a.m. on all days, and at all hours on Saturdays,
Sundays and Legal holidays, all persons who do not present a pass or
equivalent identification to the Building issued by Landlord. Landlord may
furnish passes or equivalent to Tenant so that Tenant may validate and issue
same. Tenant shall safeguard said passes and shall be responsible for all
acts of persons in or about the Building who possess a pass issued to Tenant.
17. Tenant's contractors shall, while in the Building or elsewhere in
the Park, be subject to and under the control
2
and direction of the Superintendent of the Building (but not as
agent or servant of said Superintendent of Landlord).
18. If Demised Premises is or becomes infested with vermin as a result
of the use or any misuse or neglect of Demised Premises by Tenant, its
agents, servants, employees, contractors, visitors or licensees, Tenant shall
forthwith at Tenant's expense cause the same to be exterminated from time to
time to the satisfaction of Landlord and shall employ such licensed
exterminators and shall be approved in writing in advance by Landlord.
19. The requirements of Tenant will be attended to only upon application
at the office of the Building. Building personnel shall not perform any work
or do anything outside of their regular duties, unless under special
instructions from the office of the Landlord.
20. Canvassing, soliciting and peddling in the Building or in the Park
are prohibited and Tenant shall cooperate to prevent the same.
21. No water cooler, air conditioning unit or system or other apparatus
shall be installed or used by Tenant without the written consent of Landlord.
22. There shall not be used in any space, or in the public halls, plaza
areas or lobbies of the Building, or elsewhere in the Park, either by Tenant
or by jobbers or others, in the delivery or receipt of merchandise, any hand
trucks or dollies, except those equipped with rubber tires and side guards.
If Tenant, in Landlord's judgement, has an excess amount of receiving or
shipping of merchandise each day, then Landlord may require Tenant to ship or
receive said merchandise on an after-hours basis.
23. Tenant, Tenant's agents, servants, employees, contractors, Licensees
or visitors shall not park any vehicles in any driveways, service area or
entrances, or areas posted "No Parking," or in any areas designated as
visitor areas.
24. Tenant shall install and maintain, at Tenant's sole cost and
expense, as adequate visibly marked (at all times property operational) fire
extinguisher next to any duplicating or photocopying machine or similar heat
producing equipment, which may or may not contain combustible material, in
Demised Premises.
25. Tenant shall keep its window coverings closed during any period of
the day when the sun is shining directly on the windows of Demised Premises.
26. Tenant shall not use the name of the Building for any purpose other
than as the address of the business to be conducted by Tenant in Demised
Premises, nor shall Tenant use any picture of the Building in its
advertising, stationary or in another manner without the prior written
permission of Landlord. Landlord expressly reserves the right at any time to
change said name without in any manner being Liable to Tenant therefor.
3
