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EXHIBIT 10.12
CONSENT TO SUBLEASE
THIS AGREEMENT is made by and among PINE STREET INVESTORS I, L.L.C. a
Delaware limited liability company ("Landlord"), FIDELITY NATIONAL TITLE
INSURANCE COMPANY, a California corporation ("Tenant"), and @XXXX.XXX., a
Tennessee corporation doing business in California as "XXXXXX.XXX."
("Subtenant").
Tenant is the tenant under an Office Lease dated August 31, 1998 (which
Office Lease as hereafter amended is hereinafter called the "Master Lease"),
under which Landlord leased to Tenant the premises commonly known as Suite 1850
on the 18th floor of the office building located at 000 Xxxx Xxxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx (the "Premises"). Landlord hereby consents to the
subletting by Tenant to Subtenant, pursuant to a sublease (the "Sublease") dated
as of November 29, 1999, a full and complete copy of which is attached hereto,
of the Premises comprising 2,447 square feet of rentable areas as shown and
marked on the floor plan attached to the Master Lease (the "Sublet Space"), such
consent being subject to and upon the following terms and conditions, to each of
which Tenant and Subtenant expressly agree:
1. Nothing contained in this Consent to Sublease (the "Consent") shall
either:
(a) Operate as a consent to or approval or ratification by Landlord
of any of the provisions of the Sublease or as a representation or
warranty by Landlord, and Landlord shall not be bound or estopped in
any way by the provisions of the Sublease; or
(b) Be construed to modify, waive or affect (i) any of the
provisions, covenants or conditions in the Master Lease, (ii) any of
Tenant's obligations under the Master Lease, or (iii) any rights or
remedies of Landlord under the Master Lease or otherwise, whether
exercised by Landlord as of the date hereof or not, or to enlarge or
increase Landlord's obligations or Tenant's rights under the Master
Lease or otherwise; or
(c) Be construed to waive any present or future breach or default on
the part of Tenant under the Master Lease. In case of any conflict
between the provisions of this Consent and the provisions of the
Sublease, the provisions of this Consent shall prevail unaffected by
the Sublease.
2. The Sublease shall be subject and subordinate at all times to the
Master Lease and all of its provisions, covenants and conditions. In case of any
conflict between the provisions of the Master Lease and the provisions of the
Sublease, the provisions of the Master Lease shall prevail unaffected by the
Sublease. The parties acknowledge and agree that although the Sublease
contemplates Landlord's signature and the agreement by Landlord of certain
provisions therein, Landlord is executing this Consent only and not the Sublease
and is not bound by any such provisions in the Sublease unless otherwise
expressly agreed by Landlord in writing.
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3. Neither the Sublease nor this Consent shall release or discharge
Tenant from any liability under the Master Lease and Tenant shall remain liable
and responsible for the full performance and observance of all of the
provisions, covenants and conditions set forth in the Master Lease on the part
of Tenant to be performed and observed. Any breach or violation of any provision
of the Master Lease by Subtenant shall be deemed to be and shall constitute a
default by Tenant in fulfilling such provision.
4. This Consent by Landlord is not assignable by Tenant or Subtenant and
shall not be construed as a consent by Landlord to any further subletting either
by Tenant or Subtenant. The Sublease may not be assigned, renewed or extended
nor shall the Premises or Sublet Space, or any part thereof be further sublet
without the prior written consent of Landlord thereto in each instance
consistent with the terms and conditions of the Master Lease.
5. Upon the expiration or any earlier termination of the term of the
Master Lease, or in case of surrender of the Master Lease by Tenant to Landlord,
except as provided in the next succeeding sentence, the Sublease and its term
shall expire and come to an end as of the effective dated of such expiration,
termination or surrender and Subtenant shall vacate the Sublet Space on or
before such date. If the Master Lease shall expire or terminate during the term
of the Sublease for any reason other than condemnation or destruction by fire or
other cause, or if Tenant shall surrender the Master Lease to Landlord during
the term of the Sublease, Landlord, in its sole discretion, upon written notice
given to Tenant and Subtenant not more than thirty (30) days after the effective
date of such expiration, termination or surrender, without any additional or
further agreement of any kind on the part of Subtenant, may elect to continue
the Sublease with the same force and effect as if Landlord, as lessor, and
Subtenant, as lessee, had entered into a lease as of such effective date for a
term equal to the then unexpired term of the Sublease and containing the same
terms and conditions as those contained in the Sublease, Subtenant shall attorn
to Landlord and Landlord and Subtenant shall have the same rights, obligations
and remedies thereunder as were had by Tenant and Subtenant thereunder prior to
such effective date, respectively, except that in no event shall Landlord be (i)
liable for any act or omission by Tenant or (ii) subject to any offsets or
defenses which Subtenant had or might have against Tenant, (iii) bound by any
rent or additional rent or other payment paid by Subtenant to Tenant in advance
or (iv) bound by any amendment to the Sublease not consented to by Landlord.
Upon expiration of the Sublease pursuant to the provisions of the first sentence
of this Paragraph 5, in the event of the failure of Subtenant to vacate the
Sublet Space as therein provided, Landlord shall be entitled to all of the
rights and remedies available to Landlord against Tenant holding over after the
expiration of the term.
6. Subtenant shall deal directly with Tenant for the provision of all
services and materials (including, by way of example only, after-hours
air-conditioning) to the Premises or Sublet space. Notwithstanding said
requirement, both Tenant and Subtenant shall be and continue to be liable for
all bills rendered by Landlord for charges incurred by or imposed upon Subtenant
for services rendered and materials supplied to the Sublet Space at the request
of Subtenant, whether actually requested of Landlord by Tenant or Subtenant.
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7. Landlord agrees to provide Subtenant with copies of written notices
it delivers to the Tenant under the Master Lease to Subtenant at the Sublet
Space only, with a copy to Subtenant at 0 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx,
Xxxxxxxxxxx 00000 Attention: Xxxxx Xxxxxxx; provided, however, such delivery
shall not affect or delay the time Landlord's notice to Tenant is deemed to be
received under the Master Lease or otherwise. All communication, notices and
demands of any kind which a party may be required or desire to give or to serve
upon another party pursuant to this Consent to Sublease shall be made in writing
and shall be deemed to have been fully given upon delivery if personally
delivered, or three (3) business days after deposit in the United States mail,
certified, postage prepaid, return receipt requested, or otherwise when actually
received, to the following addresses, or such other address as the parties may
from time to time designate in writing:
To Landlord: Pine Street Investors I, L.L.C.
c/x Xxxxxxxxx Xxxxxxxxx Inc.
000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxx
To Tenant: FIDELITY NATIONAL TITLE INSURANCE COMPANY
Orion Realty
0000 Xxxxx Xxxxxx
Xxxxx 000
Xxxxx Xxxxxxx, XX 00000
To Subtenant: @plan. Inc.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
8. As a material condition to Landlord entering into this Consent,
Landlord, Tenant and Subtenant hereby agree that Landlord shall have the right
to terminate the Master Lease prior to the expiration thereof (which shall
effectively terminate the Sublease as of such early termination date) by
delivering to Tenant at least six (6) months prior written notice thereof; upon
any such notice of termination, Tenant shall immediately notify Subtenant of the
termination of the Master Lease and the applicable termination date. Said right
of Landlord to terminate the Master Lease shall survive any termination of the
Sublease prior to the expiration date set forth in the Sublease.
9. Subtenant shall indemnify and hold harmless Landlord and Tenant on
the same terms and conditions as Tenant provides indemnification to the Landlord
Pursuant to Article 12 of the Master Lease. In addition, Subtenant shall
maintain such insurance as is required by Article 11 of the Master Lease, naming
Landlord and Tenant, and their respective successors and assigns, as additional
insureds on such policies, and shall otherwise comply with the procedures of the
Master Lease.
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10. This Consent shall be construed in accordance with the laws of the
State of California and contains the entire agreement of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Consent to
Sublease effective January 7, 2000.
LANDLORD:
PINE STREET INVESTORS I, L.L.C.
a Delaware limited liability company
By: XXXXXXXXX XXXXXXXXX, INC.,
a California corporation, as agent
for Pine Street Investors I, L.L.C.
By: /s/ Xxxx Xxxxxxxxx
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Xxxx Xxxxxxxxx
Its: Chief Executive Officer
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TENANT:
FIDELITY NATIONAL TITLE INSURANCE COMPANY,
a California corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
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Its: Vice President
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SUBTENANT:
@XXXX.XXX.
a Tennessee corporation doing business in
California as "XXXXXX.XXX."
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Its: Chief Financial Officer
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AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
STANDARD SUBLEASE
(SHORT-FORM TO BE USED WITH POST 1995 AIR LEASES)
1. PARTIES. This Sublease, dated, for reference purposes only, November
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29, 1999, is made by and between Fidelity National Title Insurance Company, a
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California corporation ("Sublessor") and @plan, a Tennessee corporation
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("Sublessee").
2. PREMISES. Sublessor hereby subleases to Sublessee and Sublessee hereby
subleases from Sublessor for the term, at the rental, and upon all of the
conditions set forth herein, that certain real property, including all
improvements therein, and commonly known by the street address of 100 Pine
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Street, Suite 1850 located in the County of San Francisco, State of California
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and generally described as (describe briefly the nature of the
property) that office suite of 2,447 rsf
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3. TERM.
3.1. TERM. The term of this Sublease shall be for Thirty (30) months
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and six (6) days commencing on December 10, 1999 and ending on June 6, 2002
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unless sooner terminated pursuant to any provision hereof.
3.2 DELAY IN COMMENCEMENT. Sublessor agrees to use its best
commercially reasonable efforts to deliver possession of the Premises by the
commencement date. If, despite said efforts, Sublessor is unable to deliver
possession as agreed, the rights and obligations of Sublessor and Sublessee
shall be as set forth in Paragraph 3.3 of the Master Lease (as modified by
Paragraph 7.3 of this Sublease).
4. RENT
4.1 BASE RENT. Sublessee shall pay to Sublessor as Base Rent for the
Premises equal monthly payments of $9,380.17 in advance, on the first day of
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each month of the term hereof. Sublessee shall pay Sublessor upon the execution
hereof $6,354.31 as Base Rent for December 10 -31, 1999
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Base Rent for any period during the term hereof which is for less than one month
shalt be a pro rata portion of the monthly installment.
4.2 RENT DEFINED. All monetary obligations of Sublessee to Sublessor
under the terms of this Sublease (except for the Security Deposit) are deemed to
be rent ("Rent"). Rent shall be payable in lawful money of the United States to
Sublessor at the address stated herein or to such other persons or at such other
places as Sublessor may designate in writing.
5. SECURITY DEPOSIT. Sublessee shall deposit with Sublessor upon execution
hereof $9,380.17 as security for Sublessee's faithful performance of Sublessee's
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obligations hereunder. The rights and obligations of Sublessor and
Sublessee as to said Security Deposit shall be as set forth in Paragraph 5 of
the Master Lease (as modified by Paragraph 7.3 of this Sublease).
6. USE.
6.1 AGREED USE. The Premises shall be used and occupied only for
office use and for no other purpose.
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6.2 COMPLIANCE. Sublessor warrants that the improvements on the
Premises comply with all applicable covenants or restrictions of record and
applicable building codes, regulations and ordinances ("APPLICABLE
REQUIREMENTS") in effect on the commencement date. Said warranty does not apply
to the use to which Sublessee will put the Premises or to any alterations or
utility installations made or to be made by Sublessee NOTE: Sublessee is
responsible for determining whether or not the zoning is appropriate for its
intended use, and acknowledges that past uses of the Premises may no longer be
allowed.
6.3 ACCEPTANCE OF PREMISES AND LESSEE. Sublessee acknowledges that:
(a) it has been advised by Brokers to satisfy itself with respect
to the condition of the Premises (including but not limited to the electrical,
HVAC and fire sprinkler systems, security, environmental aspects), and their
suitability for Sublessee's intended use,
(b) Sublessee has made such investigation as it deems necessary
with reference to such matters and assumes all responsibility therefor as the
same relate to its occupancy of the Premises, and
(c) neither Sublessor, Sublessor's agents, nor any Broker has made
any oral or written representations or warranties with respect to said matters
other than as set forth in this Sublease.
In addition, Sublessor acknowledges that:
(a) Broker has made no representations, promises or warranties
concerning Sublessee's ability to honor the Sublease or suitability to occupy
the Premises, and
(b) it is Sublessor's sole responsibility to investigate the
financial capability and/or suitability of all proposed tenants.
7. MASTER LEASE
7.1 Sublessor is the lessee of the Premises by virtue of a lease,
hereinafter the "MASTER LEASE", a copy of which is attached hereto marked
Exhibit 1, wherein Pine Street Investors I, LLC, as Landlord and Fidelity
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National Title Insurance Company, as Tenant
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is the lessor, hereinafter the "MASTER LESSOR"
7.2 This Sublease is and shall be at all times subject and subordinate
to the Master Lease.
7.3 The terms, conditions and respective obligations of Sublessor and
Sublessee to each other under this Sublease shall be the terms and conditions of
the Master Lease except for those provisions of the Master Lease which are
directly contradicted by this Sublease in which event the terms of this Sublease
document shall control over the Master Lease. Therefore, for the purposes of
this Sublease, wherever in the Master Lease the word "Lessor" is used it shall
be deemed to mean the Sublessor herein and wherever in the Master Lease the word
"Lessee" is used it shall he deemed to mean the Sublessee herein.
7.4 During the term of this Sublease and for all periods subsequent
for obligations which have arisen prior to the termination of this Sublease.
Sublessee does hereby expressly assume and agree to perform and comply with, for
the benefit of Sublessor and Master Lessor, each and every obligation of
Sublessor under the Master Lease except for the following paragraphs which are
excluded therefrom: 2, 3, 4a, 6, 34
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7.5 The obligations that Sublessee has assumed under paragraph 7.4
hereof are hereinafter referred to as the "SUBLESSEE'S ASSUMED OBLIGATIONS". The
obligations that Sublessee has not assumed under paragraph 7.4 hereof are
hereinafter referred to as the "SUBLESSOR'S REMAINING OBLIGATIONS".
7.6 Sublessee shall hold Sublessor free and harmless from all
liability, judgments, costs, damages, claims or demands including reasonable
attorneys' fees, arising out of Sublessee's failure to comply with or perform
Sublessee's Assumed Obligations, unless such failure is caused by the negligence
or the intentional act of Sublessor.
7.7 Sublessor agrees to maintain the Master Lease during the entire
term of this Sublease, subject, however, to any earlier termination of the
Master Lease without the fault of the Sublessor, and to comply with or perform
Sublessor's Remaining Obligations and to hold Subtessee free and harmless from
all liability, judgments, costs, damages, claims or demands arising out of
Sublessor's failure to comply with or perform Sublessor's Remaining Obligations.
7.8 Sublessor represents to Sublessee that the Master Lease is in
full force and effect and that no default exists on the part of any Party to the
Master Lease. Sublessor shall not take any action to amend, modify or otherwise
alter the terms of the Master Lease without the prior written consent of the
Sublessee.
8. ASSIGNMENT OF SUBLEASE AND DEFAULT.
8.1 Sublessor hereby assigns and transfers to Master Lessor the
Sublessor's interest in this Sublease, subject however to the provisions of
Paragraph 8.2 hereof.
8.2 Master Lessor, by executing this document, agrees that until a
Default shall occur in the performance of Sublessor's Obligations under the
Master Lease, that Sublessor may receive, collect and enjoy the Rent accruing
under this Sublease. However, if Sublessor shall Default in the performance of
its obligations to Master Lessor then Master Lessor may, at its option, receive
and collect, directly from Sublessee, all Rent owing and to be owed under this
Sublease. Master Lessor shall not, by reason of this assignment of the Sublease
nor by reason of the collection of the Rent from the Sublessee, be deemed liable
to Sublessee for any failure of the Sublessor to perform and comply with
Sublessor's Remaining Obligations.
8.3 Sublessor hereby irrevocably authorizes and directs Sublessee
upon receipt of any written notice from the Master Lessor stating that a Default
exists in the performance of Sublessor's obligations under the Master Lease, to
pay to Master Lessor the Rent due and to become due under the Sublease.
Sublessor agrees that Sublessee shall have the right to rely upon any such
statement and request from Master Lessor, and that Sublessee shall pay such Rent
to Master Lessor without any obligation or right to inquire as to whether such
Default exists and notwithstanding any notice from or claim from Sublessor to
the contrary and Sublessor shall have no right or claim against Sublessee for
any such Rent so paid by Sublessee.
8.4 No changes or modifications shall be made to this Sublease without
the consent of Master Lessor.
9. CONSENT OF MASTER LESSOR.
9.1 In the event that the Master Lease requires that Sublessor obtain
the consent of Master Lessor to any subletting by Sublessor then, this Sublease
shall not be effective unless, within ten days of the date hereof, Master Lessor
signs this Sublease thereby giving its consent to this Subletting.
9.2 In the event that the obligations of the Sublessor under the
Master Lease have been guaranteed by third parties then neither this Sublease,
nor the Master Lessor's consent, shall be effective unless, within 10 days of
the date hereof, said guarantors sign this Sublease thereby giving their consent
to this Sublease.
9.3 In the event that Master Lessor does give such consent then:
(a) Such consent shall not release Sublessor of its obligations or
alter the primary liability of Sublessor to pay the Rent and perform and comply
with all of the obligations of Sublessor to be performed under the Master Lease.
(b) The acceptance of Rent by Master Lessor from Sublessee or
anyone else liable under the Master Lease shall not be deemed a waiver by Master
Lessor of any provisions of the Master Lease.
(c) The consent to this Sublease shall not constitute a consent to
any subsequent subletting or assignment.
(d) In the event of any Default of Sublessor under the Master
Lease, Master Lessor may proceed directly against Sublessor, any guarantors or
anyone else liable under the Master Lease or this Sublease without first
exhausting Master Lessor's remedies against any other person or entity liable
thereon to Master Lessor.
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(e) Master Lessor may consent to subsequent sublettings and
assignments of the Master Lease or this Sublease or any amendments or
modifications thereto without notifying Sublessor or any one else liable under
the Master Lease and without obtaining their consent and such action shall not
relieve such persons from liability.
(f) In the event that Sublessor shall Default in its
obligations under the Master Lease, then Master Lessor, at its option and
without being obligated to do so, may require Sublessee to attorn to Master
Lessor in which event Master Lessor shall undertake the obligations of Sublessor
under this Sublease from the time of the exercise of said option to termination
of this Sublease but Master Lessor shall not be liable for any prepaid Rent nor
any Security Deposit paid by Sublessee, nor shall Master Lessor be liable for
any other Defaults of the Sublessor under the Sublease.
9.4 The signatures of the Master Lessor and any Guarantors of Sublessor
at the end of this document shall constitute their consent to the terms of this
Sublease.
9.5 Master Lessor acknowledges that, to the best of Master Lessor's
knowledge, no Default presently exists under the Master Lease of obligations to
be performed by Sublessor and that the Master Lease is in full force and effect.
9.6 In the event that Sublessor Defaults under its obligations to be
performed under the Master Lease by Sublessor, Master Lessor agrees to deliver
to Sublessee a copy of any such notice of default. Sublessee shall have the
right to cure any Default of Sublessor described in any notice of default within
ten days after service of such notice of default on Sublessee. If such Default
is cured by Sublessee then Sublessee shall have the right of reimbursement and
offset from and against Sublessor.
10. BROKERS FEE.
10.1 Upon execution hereof by all parties, Sublessor shall pay to
Xxxxxxx & Wakefield of California, Inc. ("C&W")
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a licensed real estate broker, ("Broker"), a fee as set forth in a separate
agreement between Sublessor and Broker, or in the event there is no such
separate agreement, the sum of $ 9,225.19 for brokerage services rendered by
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Broker to Sublessor in this transaction. C&W shall pay the cooperating broker,
CB Xxxxxxx Xxxxx, from the commission paid by Sublessor.
10.3 Master Lessor agrees that if Sublessee shall exercise any option
or right of first refusal granted to Sublessee by Master Lessor in connection
with this Sublease, or any option or right substantially similar thereto, either
to extend or renew the Master Lease, to purchase the Premises or any part
thereof, or to lease or purchase adjacent property which Master Lessor may own
or in which Master Lesser has an interest, or if Broker is the procuring cause
of any other lease or sale entered into between Sublessee and Master Lessor
pertaining to the Premises, any part thereof, or any adjacent property which
Master Lessor owns or in which it has an interest, then as to any of said
transactions, Master Lessor shall pay to Broker a fee, in cash, in accordance
with the schedule of Broker in effect at the time of the execution of this
Sublease.
10.4 Any fee due from Sublessor or Master Lessor hereunder shall be
due and payable upon the exercise of any option to extend or renew, upon the
execution of any new lease, or, in the event of a purchase, at the close of
escrow.
10.5 Any transferee of Sublessor's interest in this Sublease, or of
Master Lessor's interest in the Master Lease, by accepting an assignment
thereof, shall be deemed to have assumed the respective obligations of Sublessor
or Master Lessor under this Paragraph 10 Broker shall be deemed to be a
third-party beneficiary of this paragraph 10.
11. ATTORNEY'S FEES. If any party or the Broker named herein brings an
action to enforce the terms hereof or to declare rights hereunder, the
prevailing party in any such action, on trial and appeal, shall be entitled to
his reasonable attorney's fees to be paid by the losing party as fixed by the
Court.
12. ADDITIONAL PROVISIONS. [If there are no additional provisions, draw
line from this point to the next printed word after the space left here. If
there are additional provisions place the same here.]
13. Sublessee shall pay for its own directory signage and standard signage
at the entrance to the Premises. Sublessor shall assist Sublessee with the sign
request to Lessor.
14. Notices sent between Sublessor and Sublessee shall be sent as follows:
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To Sublessor: To Sublessee:
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Fidelity National Title Insurance Company @xxxx.xxx
c/o Park West Development Three Landmark Square
0000 X. Xxxxxxxx Xxxxxx Xxxxxxxx, XX 00000
Xxxxxxx, XX 00000 Attention: Xxxxx Xxxxxxx
Attention: Xxxxxxx X. Xxxxxxxx (203) 961-0340 ext. 114
(000) 000-0000
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15. 5ublessor shall promptly deliver to Sublessee any and all notices that
it may receive from Master Lessor under the terms of the Master Lease.
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ATTENTION: NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE AMERICAN
INDUSTRIAL REAL ESTATE ASSOCIATION OR BY ANY REAL ESTATE BROKER AS TO THE LEGAL
SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS SUBLEASE OR THE
TRANSACTION TO WHICH IT RELATES. THE PARTIES ARE URGED TO:
1. SEEK ADVICE OF COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS
SUBLEASE.
2. RETAIN APPROPRIATE CONSULTANTS TO REVIEW AND INVESTIGATE THE CONDITION OF
THE PREMISES. SAID INVESTIGATION SHOULD INCLUDE BUT NOT BE LIMITED TO: THE
POSSIBLE PRESENCE OF HAZARDOUS SUBSTANCES, THE ZONING OF THE PROPERTY, THE
STRUCTURAL INTEGRITY, THE CONDITION OF THE ROOF AND OPERATING SYSTEMS, AND
THE SUITABILITY OF THE PREMISES FOR SUBLESSEE'S INTENDED USE.
WARNING: IF THE SUBJECT PROPERTY IS LOCATED IN A STATE OTHER THAN CALIFORNIA,
CERTAIN PROVISIONS OF THE SUBLEASE MAY NEED TO BE REVISED TO COMPLY WITH THE
LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED.
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Executed at: FIDELITY NATIONAL TITLE INSURANCE CO., INC.
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on: 12/15/99
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Address: 0000 Xxxxx Xxxxxx, Xxxxx 000 By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxx Xxxxxxx, Xxxxxxxxxx 00000 Xxxxxxx X. Xxxxxxxx
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"Sublessor" (Corporate Seal ) Its: VP Real Estate
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Executed at: Stamford, Connecticut @plan, Inc.
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on: December 10, 1999
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Address: Three Landmark Square By: /s/ Xxxxx Xxxxxxx
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----------------------------------- Xxxxx Xxxxxxx
"Sublessee" (Corporate Seal ) Its: Chief Financial Officer
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Executed at:
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on:
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Address: By:
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----------------------------------- "Master Lessor" (Corporate Seal)
NOTE: These forms are often modified to meet changing requirements of law and
needs of the industry. Always write or call to make sure you are utilizing the
most current form: AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION, 000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 000, Xxx Xxxxxxx, XX 00000 (213) 687-8777
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000 XXXX XXXXXX CENTER
OFFICE LEASE
BETWEEN
PINE STREET INVESTORS I, L.L.C.
a Delaware limited liability company,
LANDLORD
AND
FIDELITY NATIONAL TITLE INSURANCE COMPANY, a California corporation,
TENANT
DATED August 31, 1998
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TABLE OF CONTENTS
ARTICLE 1.
Premises.................................................................1
ARTICLE 2.
Term ..................................................................1
ARTICLE 3.
Base Rent................................................................2
ARTICLE 4.
Additional Rent..........................................................3
ARTICLE 5.
Personal Property Taxes, Rent Taxes and Other Taxes......................5
ARTICLE 6.
Condition of Premises....................................................6
ARTICLE 7.
Use and Rules............................................................6
ARTICLE 8.
Services and Utilities...................................................6
ARTICLE 9.
Maintenance and Repairs..................................................8
ARTICLE 10.
Alterations and Liens....................................................9
ARTICLE 11.
Insurance, Subrogation and Waiver of Claims..............................10
ARTICLE 12.
Indemnity................................................................12
ARTICLE 13.
Destruction or Damage....................................................12
i
9
ARTICLE 14.
Condemnation.............................................................14
ARTICLE 15.
Subordination, Attornment and Mortgagee Protection.......................14
ARTICLE 16.
Estoppel Certificate.....................................................15
ARTICLE 17.
Assignment and Subletting................................................15
ARTICLE 18.
Compliance with Legal Requirements.......................................19
ARTICLE 19.
Rights Reserved by Landlord..............................................19
ARTICLE 20.
Landlord's Remedies......................................................21
ARTICLE 21.
Landlord's Right to Cure.................................................24
ARTICLE 22.
Return of Possession.....................................................24
ARTICLE 23.
Holding Over.............................................................25
ARTICLE 24.
No Waiver................................................................25
ARTICLE 25.
Attorneys' Fees and Jury Trial...........................................26
ARTICLE 26.
Captions, Definitions and Severability...................................26
ARTICLE 27.
Conveyance by Landlord and Liability.....................................31
ii
10
ARTICLE 28.
Safety and Security Devices, Services and Programs......................32
ARTICLE 29.
Communications and Computer Lines.......................................32
ARTICLE 30.
Hazardous Materials.....................................................34
ARTICLE 31.
Miscellaneous...........................................................36
ARTICLE 32.
Offer .................................................................37
ARTICLE 33.
Notices.................................................................37
ARTICLE 34.
Real Estate Brokers.....................................................38
ARTICLE 35.
Security Deposit........................................................38
ARTICLE 36.
Entire Agreement........................................................38
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OFFICE LEASE
THIS LEASE made as of the 31st day of August, 1998, between PINE STREET
INVESTORS I, L.L.C., a Delaware limited liability company ("Landlord") and
FIDELITY NATIONAL TITLE INSURANCE COMPANY, a California corporation ("Tenant"),
whose address is c/o Park West Development, 0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxx
X, Xxxxxxx, Xxxxxxx 00000.
WITNESSETH:
Landlord hereby leases to Tenant and Tenant hires from Landlord the
premises described herein for the term and subject to the terms, covenants,
agreements and conditions hereinafter set forth, to each and all of which Tenant
and Landlord hereby mutually agree.
ARTICLE 1.
PREMISES
Landlord hereby leases to Tenant and Tenant hereby hires from Landlord
those certain premises, as shown on the floor plan attached hereto as Exhibit
"A" and made a part hereof ("Premises"), on the 18th floor of the building known
as Pine Street Center ("Building") located at 000 Xxxx Xxxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx ("Property" as further described in Article 26). Tenant acknowledges
and agrees that it has had an opportunity to review Landlord's calculation of
rentable area, and Landlord and Tenant hereby agree that for purposes of this
Lease the rentable area of the Premises is 2,447 square feet and the rentable
area of the Property is 402,534 square feet.
ARTICLE 2.
TERM
(A) TERM. The term of this Lease ("Term") shall commence on December 1,
1998 ("Commencement Date") and, unless sooner terminated as hereinafter
provided, shall expire on June 6, 2002 ("Expiration Date"). The Commencement
Date and Expiration Date shall be subject to adjustment as provided in Paragraph
(B) of this Article.
(B) DELAY IN COMMENCEMENT DATE. The Commencement Date set forth in
Paragraph (A) of this Article shall be delayed and Base Rent shall be abated to
the extent that Landlord fails: (i) to substantially complete any initial
improvements to the Premises required to be performed by Landlord under any
separate agreement signed by both parties, or (ii) to deliver possession of the
Premises for any other reason, including but not limited to, holding over by
prior occupants, except to the extent that Tenant, its contractors, agents or
employees in any way contribute to either such failures. If Landlord so fails
for a ninety (90) day initial grace period, or such additional time as may be
necessary due to fire or other casualty, strikes, lock-outs, or other labor
troubles, shortages of equipment or materials, governmental requirements, power
shortages or outages, acts or omissions
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of Tenant or other Persons, or other causes beyond Landlord's reasonable
control, Tenant shall have the right to terminate this Lease by written notice
to Landlord any time thereafter up until Landlord substantially completes any
such improvements and delivers the Premises to Tenant. Any such delay in the
Commencement Date shall not subject Landlord to liability for loss or damage
resulting therefrom and Tenant's sole recourse with respect thereto shall be the
abatement of Rent and right to terminate this Lease described above. Upon any
such termination, Landlord and Tenant shall be entirely relieved of their
obligations hereunder, and any Security Deposit and Rent payments shall be
returned to Tenant. If The Commencement Date is delayed, the Expiration Date
shall be similarly extended for the period of such delay. During any period that
Tenant shall be permitted to enter the Premises prior to the Commencement Date
other than to occupy the same (e.g., to perform alterations or improvements),
Tenant shall comply with all terms and provisions of this Lease, except those
provisions requiring the payment of Rent. If Tenant shall be permitted to enter
the Premises prior to the Commencement Date for the purpose of occupying the
same, Rent shall commence on such date, and if Tenant shall commence occupying
only a portion of the Premises prior to the Commencement Date, Rent shall be
prorated based on the number of rentable square feet occupied by Tenant.
Landlord may permit early entry, provided the Premises are legally available and
Landlord has completed any work required under this Lease or any separate
agreement entered in connection herewith.
(C) EARLY OCCUPANCY. Landlord acknowledges and agrees that Tenant shall
be permitted to occupy the Premises commencing upon the full execution and
delivery of this Lease and the painting and installation of carpeting within the
Premises (in accordance with Article 6), which is prior to the Commencement
Date. During such period until the Commencement Date, Tenant shall comply with
all terms and provisions of this Lease, except those provisions requiring the
payment of Base Rent.
ARTICLE 3.
BASE RENT
Tenant shall pay Landlord as Base Rent the sum of $45.00 per rentable
square foot of the Premises per year, which shall be equal to an annual Base
Rent of $110,115.00 and a monthly Base Rent of $9,176.25. Monthly Base Rent
shall be paid to Landlord in advance on or before the first day of each calendar
month during the Term, commencing as of the Commencement Date, except that Base
Rent for the first full calendar month for which Base Rent shall be due, shall
be paid when Tenant executes this Lease. Rent shall be paid without any prior
demand or notice therefor and without any deduction, set-off or counterclaim
unless otherwise explicitly set forth herein, or relief from any valuation or
appraisement laws. If the Term commences on a day other than the first day of a
calendar month, or ends on a day other than the last day of a calendar month,
then the Base Rent for such month shall be prorated on the basis of 1/30th of
the monthly Base Rent for each day of such month.
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ARTICLE 4.
ADDITIONAL RENT
(A) TAXES. Tenant shall pay Landlord as additional rent an amount equal
to Tenant's Prorata Share of Taxes in excess of the amount of Taxes paid by
Landlord during the calendar year 1998 ("Base Tax Year"). The terms "Taxes" and
"Tenant's Prorata Share" shall have the meanings specified therefor in Article
26.
(B) OPERATING EXPENSES. Tenant shall pay Landlord as additional rent an
amount equal to Tenant's Prorata Share of Operating Expenses in excess of the
amount of Operating Expenses paid by Landlord during the calendar year 1998
("Base Expense Year"). The term "Operating Expenses" shall have the meaning
specified therefor in Article 26.
(C) MANNER OF PAYMENT. Taxes and Operating Expenses shall be paid in the
following manner:
a) Landlord may reasonably estimate in advance the amounts Tenant
shall owe for Taxes and Operating Expenses for any full or partial
calendar year of the Term. In such event, Tenant shall pay such
estimated amounts, on a monthly basis, on or before the first day of
each calendar month, together with Tenant's payment of Base Rent. Such
estimate may be reasonably adjusted from time to time by Landlord.
b) Within 120 days after the end of each calendar year, or as
soon thereafter as practicable, Landlord shall provide a statement
("Statement") to Tenant showing: (a) the amount of actual Taxes and
Operating Expenses for such calendar year, with a listing of amounts for
major categories of Operating Expenses, and such amounts for the Base
Years, (b) any amount paid by Tenant towards Taxes and Operating
Expenses during such calendar year on an estimated basis, and (c) any
revised estimate of Tenant's obligations for Taxes and Operating
Expenses for the current calendar year.
c) If the Statement shows that Tenant's estimated payments were
less than Tenant's actual obligations for Taxes and Operating Expenses
for such year, Tenant shall pay the difference. If Landlord increases
Tenant's estimated payments for the current calendar year, Tenant shall
pay the difference between the new and former estimates, for the period
from January 1 of the current calendar year through the month in which a
statement is sent. Tenant shall make such payments within thirty (30)
days after Landlord sends the applicable statement.
d) If the Statement shows that Tenant's estimated payments
exceeded Tenant's actual obligations for Taxes and Operating Expenses,
Tenant shall receive a credit for the difference against payments of
Base Rent next due. If the Term shall have expired and no further Base
Rent shall be due, Tenant shall receive a refund of such difference,
within thirty (30) days after Landlord sends the Statement.
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e) So long as Tenant's obligations hereunder are not materially
adversely affected thereby, Landlord reserves the right to reasonably
change, from time to time, the manner or timing of the foregoing
payments. In lieu of providing one Statement covering Taxes and
Operating Expenses, Landlord may provide separate statements, at the
same or different times. No delay by Landlord in providing the Statement
(or separate statements) shall be deemed a default by Landlord or a
waiver of Landlord's right to require payment of Tenant's obligations
for actual or estimated Taxes or Operating Expenses. In no event shall a
decrease in Taxes or Operating Expenses below the Base Year amounts,
ever decrease the monthly Base Rent, or give rise to a credit or refund
in favor of Tenant.
(D) PRORATION. If the Term commences other than on January 1, or ends
other than on December 31, Tenant's obligations to pay estimated and actual
amounts towards Taxes and Operating Expenses for such first or final calendar
years shall be prorated to reflect the portion of such years included in the
Term. Such proration shall be made by multiplying the total estimated or actual
(as the case may be) Taxes and Operating Expenses, for such calendar years, as
well as the Base Year amounts, by a fraction, the numerator of which shall be
the number of days of the Term during such calendar year, and the denominator of
which shall be 365.
(E) ADJUSTMENTS. For purposes of making its calculation of Operating
Expenses and Taxes payable by Tenant hereunder, Landlord will make adjustments
to reflect a 95% occupancy rate in the Building. Landlord may exclude from the
Base Expense Year, any non-recurring items, including capital expenditures
otherwise permitted as Operating Expenses under Article 26 of the Lease (and
shall only include the amortization of such expenditures in subsequent year
Operating Expenses to the extent permitted under Article 26, including any
remaining amortization of permitted expenditures made prior to or after the
Commencement Date). If Landlord eliminates from any subsequent year's Operating
Expenses a recurring category of expenses previously included in the Base
Expense Year, Landlord may subtract such category from the Base Expense Year
commencing with such subsequent year.
(F) LANDLORD'S RECORDS. Landlord shall maintain records respecting Taxes
and Expenses and determine the same in accordance with sound accounting and
management practices, consistently applied. Although this Lease contemplates the
computation of Taxes and Operating Expenses on a cash basis, Landlord shall make
reasonable and appropriate accrual adjustments to ensure that each calendar
year, including the Base Years, includes substantially the same recurring items.
Landlord reserves the right to change to a full accrual system of accounting so
long as the same is consistently applied and Tenant's obligations are not
materially adversely affected.
(G) TENANT'S REVIEW. If Taxes or Operating Expenses for any calendar
year increase more than five percent (5%) over Taxes and Operating Expenses for
the immediately preceding calendar year, Tenant, within thirty (30) days after
receiving Landlord's Statement, shall have the right to provide Landlord with
written notice ("Review Notice") of its intent to review Landlord's books and
records relating to Taxes and Operating Expenses for such calendar year. Within
a reasonable time after receipt of a timely Review Notice, Landlord shall make
such books and records
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available to Tenant or Tenant's agent for its review at the Building office;
provided, that if Tenant retains an agent to review Landlord's books and records
for any calendar year, such agent must be a CPA firm licensed to do business in
California. Tenant shall be solely responsible for any and all costs, expenses
and fees incurred by Tenant or its agent in connection with such review. Upon
such review of Landlord's books and records, Tenant shall have the right, within
thirty (30) days after such books and records are made available, to give
Landlord written notice stating in reasonable detail any objection to Landlord's
Statement for the applicable calendar year. If Tenant fails to give Landlord
written notice of objection within such thirty (30) day period or fails to
provide Landlord with a timely Review Notice, Tenant shall be deemed to have
approved Landlord's Statement in all respects and shall thereafter be barred
from raising any claims with respect thereto. Upon Landlord's receipt of a
timely objection notice from Tenant, Landlord and Tenant shall work together in
good faith to resolve the discrepancy between Landlord's Statement and Tenant's
review. If Landlord and Tenant determine that Taxes and Operating Expenses for
the applicable calendar year are less than reported, Landlord shall provide
Tenant with a credit against future additional rent in the amount of any
overpayment by Tenant. Likewise, if Landlord and Tenant determine that Taxes and
Operating Expenses for the applicable calendar year are greater than reported,
Tenant shall forthwith pay to Landlord the amount of underpayment by Tenant. Any
information obtained by Tenant pursuant to the provisions of this section shall
be treated as confidential. Notwithstanding anything to the contrary herein,
Tenant shall not be permitted to examine Landlord's books and records or to
dispute any Statement unless Tenant has paid to Landlord the amount due as shown
on such Statement.
(H) RENT AND OTHER CHARGES. Base Rent, Taxes, Operating Expenses, and
any other amounts which Tenant is or becomes obligated to pay Landlord under
this Lease or other agreement entered into in connection herewith, are sometimes
herein referred to collectively as "Rent," and all remedies applicable to the
non-payment of Rent shall be applicable thereto. Rent shall be paid at any
office maintained by Landlord or its agent at the Property, or at such other
place as Landlord may designate.
ARTICLE 5.
PERSONAL PROPERTY TAXES, RENT TAXES AND OTHER TAXES
Tenant shall pay prior to delinquency all taxes, charges or other
governmental impositions assessed against or levied upon Tenant's fixtures,
furnishings, equipment and personal property located in the Premises, and any
Work to the Premises performed under Article 10. Whenever possible, Tenant shall
cause all such items to be assessed and billed separately from the property of
Landlord. In the event any such items shall be assessed and billed with the
property of Landlord, Tenant shall pay Landlord its share of such taxes, charges
or other governmental impositions within thirty (30) days after Landlord
delivers a statement and a copy of the assessment or other documentation showing
the amount of such impositions applicable to Tenant's property. Further, Tenant
shall pay any rent tax or sales tax, service tax, transfer tax or value added
tax, or any other applicable tax on the Rent or services herein or otherwise
respecting this Lease.
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ARTICLE 6.
CONDITION OF PREMISES
Tenant has inspected the Premises, Building, Property, Systems and
Equipment (as defined in Article 26), or has had an opportunity to do so, and
agrees to accept the same "as is" without any agreements, representations,
understandings or obligations on the part of Landlord to perform any
alterations, repairs or improvements except that: (A) Landlord agrees to: (i)
install new Building standard carpeting within the Premises, and (ii) repaint
the Premises; such carpeting and painting shall be completed by Landlord at
Tenant's cost and expense except that Landlord agrees to pay up to $12,235.00
toward the cost of such work, and (B) Landlord agrees to be responsible for
repairing Systems and Equipment defects within the Premises identified by Tenant
in writing within seven (7) days following Tenant's occupancy of the Premises.
ARTICLE 7.
USE AND RULES
Tenant shall use the Premises exclusively for business offices and no
other purpose whatsoever, in compliance with all applicable Laws, and without
disturbing or interfering with any other tenant or occupant of the Property.
Tenant shall not use the Premises in any manner so as to cause a cancellation of
Landlord's insurance policies, or an increase in the premiums thereunder and
Tenant shall not commit, or suffer to be committed, any waste upon the Premises,
or any nuisance or other act or thing that may disturb the quiet enjoyment of
any other Tenant in the Building in which the Premises may be located. Tenant
shall comply with all rules set forth in Rider One attached hereto (the
"Rules"). Landlord shall have the right to reasonably amend such Rules and
supplement the same with other reasonable Rules (not expressly and materially
inconsistent with this Lease) relating to the Property, or the promotion of
safety, care, cleanliness or good order therein, and all such amendments or new
Rules shall be binding upon Tenant after five (5) days' notice thereof to
Tenant. All Rules shall be applied on a non-discriminatory basis, but nothing
herein shall be construed to give Tenant or any other Person (as defined in
Article 26) any claim, demand or cause of action against Landlord arising out of
the violation of such Rules by any other tenant, occupant, or visitor of the
Property, or out of the enforcement, failure to enforce or waiver of the Rules
by Landlord in any particular instance or instances.
ARTICLE 8.
SERVICES AND UTILITIES
(A) Provided Tenant shall not be in default under this Lease and subject
to the other provisions of this Lease and the Rules, Landlord shall provide the
following services and utilities (the cost of which shall be included in
Operating Expenses unless otherwise expressly stated herein):
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1. Electricity for standard office lighting fixtures, and equipment and
accessories customary for offices (up to 280 hours per month) where: (1)
the connected electrical load of all of the same does not exceed an
average of 4 xxxxx per square foot of the Premises (or such lesser
amount as may be available, based on the safe and lawful capacity of the
existing electrical circuit(s) and facilities serving the Premises), (2)
the electricity will be at nominal 120 volts, single phase (or 110
volts, depending on available service in the Building), and (3) the safe
and lawful capacity of the existing electrical circuit(s) serving the
Premises is not exceeded.
2. Heat and air-conditioning to provide a temperature required, in
Landlord's reasonable opinion and in accordance with applicable Law, for
occupancy of the Premises under normal business operations, from 8:00
a.m. until 6:00 p.m. Monday through Friday, except on Holidays (as
defined in Article 26). Landlord shall not be responsible for inadequate
air-conditioning or ventilation to the extent that same occurs because
Tenant uses any item or items of equipment consuming more than 500 xxxxx
at rated capacity without providing adequate air-conditioning and
ventilation there for.
3. Water for drinking, lavatory and toilet purposes at those points of
supply provided for nonexclusjve general use of other tenants at the
Property.
4. Customary office cleaning and trash removal service Monday through
Friday or Sunday through Thursday in and about the Premises.
5. Operatorless passenger elevator service (if the Property has such
equipment serving the Premises) and freight elevator service (if the
Property has such equipment serving the Premises, and subject to
scheduling by Landlord) in common with Landlord and other tenants and
their contractors, agents and visitors.
(B) Tenant shall cooperate fully with Landlord to conserve energy use in
the Building and Tenant shall use its best efforts to reasonably minimize its
use of gas, electricity, water and other utilities and public services
throughout the term hereof. Tenant agrees to cooperate with Landlord and to
abide by all regulations and requirements which Landlord may prescribe for the
proper functioning and protection of heating, ventilating, air-conditioning and
other systems within the Building.
(C) So long as Tenant is not in default under this Lease, Landlord shall
seek to provide such extra utilities or services as Tenant may from time to time
request, if the same are reasonable and feasible for Landlord to provide and do
not involve modifications or additions to the Property or existing Systems and
Equipment (as defined in Article 26), and if Landlord shall receive Tenant's
request within a reasonable period (but in any event no less than forty-eight
hours) prior to the time such extra utilities or services are required. Landlord
may comply with written or oral requests by any officer or employee of Tenant,
unless Tenant shall notify Landlord of, or Landlord shall request,
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the names of authorized individuals (up to 3 for each floor on which the
Premises are located) and procedures for written requests. Tenant shall, for
such extra utilities or services, pay such charges as Landlord shall from time
to time reasonably establish. All charges for such extra utilities or services
shall be due at the same time as the installment of Base Rent with which the
same are billed, or if billed separately, shall be due within twenty (20) days
after such billing.
(D) Landlord may install and operate meters or any other reasonable
system for monitoring or estimating any services or utilities used by Tenant in
excess of those required to be provided by Landlord under this Article
(including a system for Landlord's engineer to reasonably estimate any such
excess usage). If such system indicates such excess services or utilities,
Tenant shall pay Landlord's reasonable charges for installing and operating such
system and any supplementary air-conditioning, ventilation, heat, electrical or
other systems or equipment (or adjustments or modifications to the existing
Systems and Equipment), and Landlord's reasonable charges for such amount of
excess services or utilities used by Tenant.
(E) Landlord does not warrant that any services or utilities will be
free from shortages, failures, variations, interruptions caused by repairs,
maintenance, replacements, improvements, alterations, changes of service,
strikes, lockouts, labor controversies, accidents, inability to obtain services,
utilities, fuel, steam, water or supplies, governmental requirements or
requests, or other causes beyond Landlord's reasonable control. Landlord shall
not be in default hereunder or be liable for any damages (including loss of
profits, business interruption or other consequential damages) directly or
indirectly resulting from, nor shall it constitute a constructive eviction of
Tenant, nor shall the Rent reserved herein be abated or Tenant relieved from the
performance of its other obligations under this Lease by reason of: (i) the
installation, use, or interruption of use of any equipment in connection with
furnishing the services to be provided by Landlord hereunder, (ii) failure to
furnish or delay in furnishing any such services when such failure is caused by
accident or any condition beyond the reasonable control of Landlord or by the
making of necessary improvements or repairs to the Premises, Systems and
Equipment, Building or the Property, (iii) the limitation, curtailment,
rationing or restriction on use of water, electricity, gas or any other form of
energy, utility or other public service serving the Premises or the Building,
(iv) any prevention, delay or stoppage due to strikes, labor or materials or
reasonable substitutes therefor, governmental restrictions, governmental
regulations, governmental controls, enemy or hostile governmental action, civil
commotion, fire or other casualty.
ARTICLE 9.
MAINTENANCE AND REPAIRS
Except for customary cleaning and trash removal provided by Landlord
under Article 8, and damage covered under Article 13, Tenant shall keep the
interior of the Premises in good and sanitary condition, working order and
repair (including without limitation, carpet, wall-covering, doors, plumbing and
other fixtures, equipment, alterations and improvements whether installed by
Landlord or Tenant). In the event that any repairs, maintenance or replacements
are required, Tenant shall
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promptly arrange for the same, in a first class, workmanlike manner approved by
Landlord in advance in writing, either through Landlord for such reasonable
charges as Landlord may from time to time establish, or such contractors as
Landlord generally uses at the Property, or such other contractors as Landlord
shall first approve in writing. If Tenant does not promptly make such
arrangements, Landlord may, but need not, make such repairs, maintenance and/or
replacements, and the costs paid or incurred by Landlord therefor shall be
reimbursed by Tenant promptly after request by Landlord. Tenant shall indemnify
Landlord and pay for any repairs, maintenance and replacements to areas of the
Property outside the Premises, caused in whole or in part, as a result of moving
any furniture, fixtures, or other property to or from the Premises, or by Tenant
or its employees, agents, contractors, or visitors (notwithstanding anything to
the contrary contained in this Lease). Except as provided in this Article, or
for damage covered under Article 13, Landlord shall keep the common areas of the
Property in good and sanitary condition, working order and repair (the cost of
which shall be included in Operating Expenses).
ARTICLE 10.
ALTERATIONS AND LIENS
(A) Tenant shall make no additions, changes, alterations or improvements
("Work") to the Premises or the Systems and Equipment (as defined in Article 26)
pertaining to the Premises without the prior written consent of Landlord.
Landlord may impose reasonable requirements as a condition of such consent
including without limitation the submission of plans and specifications for
Landlord's prior written approval, obtaining necessary permits, posting bonds,
obtaining insurance, prior approval of contractors, subcontractors and
suppliers, prior receipt of copies of all contracts and subcontracts, contractor
and subcontractor lien waivers, affidavits listing all contractors,
subcontractors and supplies, use of union labor (if Landlord uses union labor),
affidavits from engineers acceptable to Landlord stating that the Work will not
adversely affect the Systems and Equipment or the structure or operation of the
Property, and requirements as to the manner and times in which such Work shall
be done. All Work shall be performed in a good and workmanlike manner and all
materials used shall be of a quality comparable to or better than those in the
Premises and Property and shall be in accordance with plans and specifications
approved by Landlord, and Landlord may require that all such Work be pefformed
under Landlord's supervision. If Landlord consents or supervises, the same shall
not be deemed a warranty as to the adequacy of the design, workmanship or
quality of materials, and Landlord hereby expressly disclaims any responsibility
or liability for the same. Landlord shall under no circumstances have any
obligation to repair, maintain or replace any portion of the Work. Landlord and
Tenant acknowledge and agree that Landlord may withhold its consent to the Work
if such Work necessitates compliance with any Laws for which Landlord might be
responsible.
(B) Tenant shall keep the Property, the Building and Premises free from
any mechanic's, materialmen's or similar liens or other such encumbrances in
connection with any Work on or respecting the Premises not performed by or at
the request of Landlord, and shall indemnify and hold Landlord harmless from and
against any claims, liabilities, judgments, or costs (including attorneys'
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fees) arising out of the same or in connection therewith. Tenant shall give
Landlord notice at least twenty (20) days prior to the commencement of any Work
on the Premises, or such additional times as may be necessary under applicable
Laws (defined in Article 26), to afford Landlord the opportunity of posting and
recording appropriate notices of non-responsibility. Tenant shall remove any
such liens or encumbrance by bond or otherwise within ten (10) days after
written notice by Landlord, and if Tenant shall fail to do so, Landlord may pay
the amount necessary to remove such lien or encumbrances, without being
responsible for investigating the validity thereof. The amount so paid shall be
deemed additional Rent under this Lease payable upon demand, without limitation
as to other remedies available to Landlord under this Lease. Nothing contained
in this Lease shall authorize Tenant to do any act which shall subject
Landlord's title to the Property, Building or Premises to any liens or
encumbrances whether claimed by operation of law or express or implied contract.
Any claim to a lien or encumbrance upon the Property, Building or Premises
arising in connection with any Work on or respecting the Premises not performed
by or at the request of Landlord shall be null and void, or at Landlord's option
shall attach only against Tenant's interest in the Premises and shall in all
respects be subordinate to Landlord's title to the Property and Premises.
ARTICLE 11.
INSURANCE, SUBROGATION AND WAIVER OF CLAIMS
(A) At all times during the Lease Term and during any pre-commencement
occupancy and holdover period, Tenant, at its sole expense, shall procure and
maintain the following types of insurance:
1. A policy of commercial general Liability insurance with Broad Form
Liability, and cross-liability endorsements, insuring Landlord and
Tenant against any claims for bodily injury, property damage or other
liability arising out of the use, occupancy, maintenance or ownership of
the Premises and all areas appurtenant thereto, including parking areas,
with an "Additional Insured-Managers or Lessors of Premises" Endorsement
and contain the "Amendment of the Pollution Exclusion" for damage caused
by heat, smoke or fumes from a hostile fire. Such insurance shall be in
an amount satisfactory to Landlord but in no event less than $3,000,000
per occurrence, $3,000,000 annually in the aggregate for all claims.
2. Insurance for Tenant's personal property, inventory, alterations,
fixtures and equipment located on the Premises, in an amount not less
than one hundred percent (100%) of their actual replacement value,
providing All Risk coverage including, without limitation, water damage
of any type, including sprinkler leakage, bursting or stoppage of pipes,
explosion, theft, vandalism and malicious mischief. The proceeds of such
insurance, so long as this Lease remains in effect, shall be used to
repair or replace the personal property, inventory, alterations,
fixtures and equipment so insured. In addition, Tenant shall obtain and
keep in force, at all times during the Term of this lease, a policy of
business interruption insurance coverage, insuring that one hundred
percent (100%) of the monthly Base Rent, and
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all additional Rent due hereunder, will be paid to Landlord for a period
of not less than one (1) year if the Premises are damaged or destroyed
or rendered unfit for occupancy by a risk insured under the foregoing
All Risk coverage.
3. A policy of worker's compensation insurance as required by applicable
law.
(B) The insurance to be acquired and maintained by Tenant shall be with
companies admitted to do business in the State of California with Best's Rating
Guide of A+ 10 or better. The insurance policies required hereunder shall (to
the extent applicable): (i) name Landlord, and such other parties as Landlord
shall designate from time to time, as additional insureds, (ii) not be canceled
or altered without thirty (30) days' prior written notice to Landlord, (iii)
insure performance of the indemnity set forth in Article 12, and (iv) provide
that such coverage s primary to and not contributory with any similar insurance
carried by Landlord, whose insurance shall be considered excess insurance only.
(C) The limits of said insurance required by this Lease or as carried by
Tenant shall not, however, limit the liability of Tenant nor relieve Tenant of
any obligation hereunder. Landlord may periodically, but not more often than
every five years, require that Tenant reasonably increase the aforementioned
coverage.
(D) An original certificate for each policy of insurance required to be
carried by Tenant under this Article evidencing the existence of such coverage,
together with copies of all endorsements to such policies, shall be delivered to
Landlord for retention by it prior to Tenant's taking possession of the
Premises, and Tenant shall provide renewal certificates to Landlord at least
twenty (20) days prior to expiration of such policies. In the event that Tenant
shall fail to insure or shall fail to furnish Landlord the evidence of such
insurance as herein required, Landlord may, but shall not be obligated to, from
time to time acquire such insurance for the benefit of Tenant or Landlord, or
both of them, for a period not exceeding one (1) year and any premium paid by
Landlord shall be recoverable from Tenant as additional Rent on demand.
(E) Tenant shall obtain from its insurers under all policies of
insurance maintained by Tenant pursuant to this Article a waiver of all rights
of subrogation which the insurer might have against Landlord, and Tenant agrees
to indemnify Landlord against any loss or expense, including reasonable
attorneys' fees, resulting from the failure to obtain or effect such waiver. In
addition Tenant hereby waives, on behalf of itself and its insurers, to the
extent it would not have the effect of invalidating any insurance coverage of
Tenant, all rights of subrogation as to Landlord. Further, Tenant hereby
releases and relieves Landlord and waives its right to recover damages (whether
in contract or in tort) against Landlord for loss of or damage to Tenant's
property arising our of or incident to perils required to be insured pursuant to
this Lease. The effect of such release and waiver of the right to recover
damages shall not be limited by the amount of insurance carried or required, or
by any deductibles applicable thereto.
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ARTICLE 12.
INDEMNITY
(A) Tenant agrees to defend and indemnify Landlord against and save
Landlord harmless from any and all loss, cost, liability, damage and expense,
including without limitation penalties, fines and reasonable attorneys' fees and
costs, incurred in connection with or arising from any cause whatsoever in, on
or about the Premises, including without limiting the generality of the
foregoing: (i) any failure by Tenant to observe or perform of any of the terms,
covenants or conditions of this Lease on Tenant's part to be observed or
performed, or (ii) the use or occupancy or manner of use or occupancy of the
Premises by Tenant or any person or entity claiming through or under Tenant, or
(iii) the condition of the Premises or any occurrence or happening on the
Premises from any cause whatsoever other than the active negligence or willful
misconduct of Landlord, its agents or employees, or (iv) any acts, omissions or
negligence of Tenant or any person or entity claiming through or under Tenant,
or of the agents, contractors, employees, subtenants, licensees, invitees or
visitors of Tenant or any such person or entity, in, on or about the Premises or
the Building, either prior to the commencement of, during, or after the
expiration of the term, including without limitation any acts, omissions or
negligence in the making or performing of any alterations. Tenant further agrees
to defend, indemnify and save harmless Landlord, Landlord's agents and the
lessors under any ground or underlying leases, from and against any and all
loss, cost, liability, damage and expense, including without limitation
reasonable attorneys' fees and costs, 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. In the event
any action or proceeding is brought against Landlord for any claim with respect
to which Tenant is obligated to indemnify Landlord hereunder, Tenant upon notice
from Landlord shall defend such action or proceeding at Tenant's sole expense by
counsel approved by Landlord, which approval shall not be unreasonably withheld.
The provisions of this Paragraph shall survive the expiration or earlier
termination of this Lease.
(B) 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 Premises or any part of the Building or Property or for any
loss or damage resulting to Tenant or its property from burst, stopped or
leaking water, gas, sewer or steam pipes or falling plaster, or electrical
wiring or for any damage or loss of property within the Premises from any causes
whatsoever, including theft, excepting only losses or damages resulting from the
active negligence or willful misconduct of Landlord, and in no event shall
Landlord be liable to Tenant for any consequential damages.
ARTICLE 13.
DESTRUCTION OR DAMAGE
If the Premises or any common areas of the Property providing access
thereto shall be damaged by fire or other casualty, Landlord shall use available
insurance proceeds to restore the
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same. Such restoration shall be to substantially the condition prior to the
casualty, except for modifications required by zoning and building codes and
other Laws or by any Holder (as defined in Article 26), any other modifications
to the common areas deemed desirable by Landlord (provided access to the
Premises is not materially impaired), and except that Landlord shall not be
required to repair or replace any of Tenant's furniture, furnishings, fixtures
or equipment, or any alterations or improvements in excess of any work performed
or paid for by Landlord under any separate agreement signed by the parties in
connection herewith. Landlord shall not be liable for any inconvenience or
annoyance to Tenant or its visitors, or injury to Tenant's business resulting in
any way from any such damage or the repair thereof. However, Landlord shall
allow Tenant aproportionate abatement of Rent during the time and to the extent
the Premises are unfit for occupancy for the purposes permitted under this Lease
and not occupied by Tenant as a result thereof (unless Tenant or its employees
or agents caused the damage). Notwithstanding the foregoing to the contrary,
Landlord may elect to terminate this Lease by notifying Tenant in writing of
such termination within sixty (60) days after the date of damage (such
termination notice to include a termination date providing at least ninety (90)
days for Tenant to vacate the Premises), if the Property shall be materially
damaged by Tenant or its employees or agents, or if the Property shall be
damaged by fire or other casualty or cause such that: (a) repairs to the
Premises and access thereto cannot reasonably be completed within 120 days after
the casualty without the payment of overtime or other premiums, (b) more than
25% of the Premises is affected by the damage, and fewer than 24 months remain
in the Term, or any material damage occurs to the Premises during the last 12
months of the Term, (c) any Holder shall require that the insurance proceeds or
any portion thereof be used to retire the Mortgage debt (or shall terminate the
ground lease, as the case may be), or the damage is not fully covered by
Landlord's insurance policies, or (d) the cost of the repairs, alterations,
restoration or improvement work would exceed 25% of the replacement value of the
Building, or the nature of such work would make termination of this Lease
necessary or convenient. Tenant agrees that Landlord's obligation to restore,
and the abatement of Rent provided herein, shall be Tenant's sole recourse in
the event of such damage, and waives any other rights Tenant may have under any
applicable Law to terminate the Lease by reason of damage to the Premises or
Property; provided, however, if in Landlord's reasonable opinion the Premises
cannot be restored within six (6) months from issuance of a building permit
therefor and if such damage materially and adversely affects Tenant's use of the
Premises, Tenant may elect to terminate this Lease by delivering written notice
thereof to Landlord within sixty (60) days after Landlord's notice of its
inability to restore the Premises within such time period in which event this
Lease shall terminate as of the termination date specified in Tenant's notice of
termination (which date shall not be less than five (5) days nor more than sixty
(60) days following the date of such notice) whereupon any obligation of
Landlord to restore the Premises shall cease. Tenant acknowledges that this
Article represents the entire agreement between the parties respecting damage to
the Premises or Property, and Tenant waives the provisions of California Civil
Code Section 1932(2) and 1933(4) and any similar statute now or hereafter in
force.
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ARTICLE 14.
CONDEMNATION
If the whole or any material part of the Premises or Property shall be
taken by power of eminent domain or condemned by any competent authority for any
public or quasi-public use or purpose, or if any adjacent property or street
shall be so taken or condemned, or reconfigured or vacated by such authority in
such manner as to require the use, reconstruction or remodeling of any part of
the Premises, Building or Property, or if Landlord shall grant a deed or other
instrument in lieu of such taking by eminent domain or condemnation, Landlord
shall have the option to terminate this Lease upon ninety (90) days' notice,
provided such notice is given no later than one hundred eighty (180) days after
the date of such taking, condemnation, reconfiguration, vacation, deed or other
instrument. Tenant shall have reciprocal termination rights if the whole or any
material part of the Premises is permanently taken, or if access to the Premises
is permanently materially impaired. Landlord shall be entitled to receive the
entire award or payment in connection therewith, except that Tenant shall have
the right to file any separate claim available to Tenant for any taking of
Tenant's personal property and fixtures belonging to Tenant and removable by
Tenant upon expiration of the Term, and for moving expenses (so long as such
claim does not diminish the award available to Landlord or any Holder, and such
claim is payable separately to Tenant). All Rent shall be apportioned as of the
date of such termination, or the date of such taking, whichever shall first
occur. If any part of the Premises shall be taken, and this Lease shall not be
so terminated, the Rent shall be proportionately abated. The parties waive the
provisions of California Code of Civil Procedure Section 1265.130 or any
similar law allowing either party to petition the Superior Court to terminate
this Lease in the event of a partial taking of the Premises.
ARTICLE 15.
SUBORDINATION, ATTORNMENT AND MORTGAGEE PROTECTION
This Lease is subject and subordinate to all Mortgages (as defined in
Article 26) now or hereafter placed upon the Property, and all other
encumbrances and matters of public record applicable to the Property. If any
foreclosure proceedings are initiated by any Holder (as defined in Article 26)
or a deed in lieu is granted (or if any ground lease is terminated), Tenant
agrees, upon written request of any such Holder or any purchaser at foreclosure
sale, to attorn and pay Rent to such party and to execute and deliver any
instruments necessary or appropriate to evidence or effectuate such attainment.
However, in the event of attornment, no Holder shall be: (i) liable for any
action or omission of Landlord, or subject to any offsets or defenses which
Tenant might have against Landlord (prior to such Holder becoming Landlord under
such attainment), (ii) liable for any security deposit or bound by any prepaid
Rent not actually received by such Holder or (iii) bound by any future
modification of this Lease not consented to by such Holder. Any Holder may elect
to make this Lease prior to the lien of its Mortgage, by written notice to
Tenant, and if the Holder of any prior Mortgage shall require, this Lease shall
be prior to any subordinate Mortgage. Tenant agrees to give any Holder by
certified mail, return receipt requested, a copy of any notice of default served
by Tenant upon Landlord, provided that prior to such notice Tenant has been
notified in
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writing (by way of service on Tenant of a copy of an assignment of leases, or
otherwise) of the address of such Holder. Tenant further agrees that if Landlord
shall have failed to cure such default within the times permitted by Landlord
for cure under this Lease, any such Holder whose address has been provided to
Tenant shall have an additional period of thirty (30) days in which to cure (or
such additional time as may be required due to causes beyond such Holder's
control, including time to obtain possession of the Property by power of sale or
judicial action). Tenant shall execute such documentation as Landlord may
reasonably request from time to time in recordable form, in order to confirm the
matters set forth in this Article.
ARTICLE 16.
ESTOPPEL CERTIFICATE
Tenant shall from time to time, within twenty (20) days after written
request from Landlord, execute, acknowledge and deliver a statement (i)
certifying that this Lease is unmodified and in full force and effect, or, if
modified, stating the nature of such modification and certifying that this Lease
as so modified, is in full force and effect (or if this Lease is claimed not to
be in full force and effect, specifying the grounds therefor) and any dates to
which the Rent has been paid in advance, and the amount of any Security Deposit,
(ii) acknowledging that there are not, to Tenant's knowledge, any uncured
defaults on the part of Landlord hereunder, or specifying such defaults if any
are claimed, and (iii) certifying such other matters as Landlord may reasonably
request, or as may be requested by Landlord's current or prospective Holders,
insurance carriers, auditors, and prospective purchasers. Any such statement may
be relied upon by any such parties. If Tenant shall fail to execute and return
any such statement within the time required herein, Tenant shall be deemed to
have agreed with the matters set forth therein.
ARTICLE 17.
ASSIGNMENT AND SUBLETTING
(A) TRANSFERS. Tenant shall not, without the prior written consent of
Landlord, which, subject to the provisions of this Article, shall not be
unreasonably withheld or delayed: (i) assign, mortgage, pledge, hypothecate,
encumber, or permit any lien to attach to, or otherwise transfer, this Lease or
any interest hereunder, by operation of law or otherwise, (ii) sublet the
Premises or any part thereof, or (iii) permit the use of the Premises by any
Persons (as defined in Article 26) other than Tenant and its employees (all of
the foregoing are hereinafter sometimes referred to collectively as "Transfers"
and any Person to whom any Transfer is made or sought to be made is hereinafter
sometimes referred to as a "Transferee"). Prior to making any Transfer, Tenant
shall notify Landlord in writing, which notice shall provide a detailed
description of the proposed Transfer, including, without limitation: (a) the
proposed effective date (which shall not be less than 30 nor more than 180 days
after Tenant's notice), (b) the portion of the Premises to be Transferred
(herein called the "Subject Space"), (c) the terms of the proposed Transfer and
the consideration therefor, the name and address of the proposed Transferee, and
a copy of all documentation pertaining to the proposed
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Transferee, and (d) current financial statements of the proposed Transferee,
certified by an officer, partner or owner thereof, and any other information to
enable Landlord to determine the financial responsibility, character, and
reputation of the proposed Transferee, nature of such Transferee's business and
proposed use of the Subject Space, and such other information as Landlord may
reasonably require. If Landlord requests additional information, Tenant's notice
shall not be deemed to have been received until Landlord receives such
additional information. Any Transfer made without complying with this Article
shall, at Landlord's option, be null, void and of no effect, or shall constitute
a Default under this Lease. Whether or not Landlord shall grant consent, Tenant
shall pay $300.00 towards Landlord's review and processing expenses, as well as
any reasonable legal fees incurred by Landlord, within thirty (30) days after
written request therefor by Landlord.
(B) APPROVAL. Subject to the terms set forth in this Article, Landlord
will not unreasonably withhold its consent to any proposed Transfer of the
Subject Space to the Transferee on the terms specified in Tenant's notice. The
parties hereby agree that it shall be reasonable under this Lease and under any
applicable Law for Landlord to withhold consent to any proposed Transfer where
one or more of the following applies (without limitation as to other reasonable
grounds for withholding consent): (i) the Transferee is of a character or
reputation or engaged in a business which is not consistent with the quality of
the Property, or would be a significantly less prestigious occupant of the
Property than Tenant, (ii) the Transferee intends to use the Subject Space for
purposes which are not permitted under this Lease, (iii) the Subject Space is
not regular in shape with appropriate means of ingress and egress suitable for
normal renting purposes, (iv) the Transferee is either a government (or agency
or instrumentality thereof) or an occupant of the Property, (v) the proposed
Transferee does not have a reasonable financial condition in relation to the
obligations to be assumed in connection with the Transfer, (vi) the proposed
Transfer would result in more than two (2) subleases of portions of the Premises
being in effect at any one time during the Term, or (vii) Tenant has committed
and failed to cure a default at the time Tenant requests consent to the proposed
Transfer.
(C) RECAPTURE. Notwithstanding anything to the contrary in this Article,
Landlord shall have the option, by giving notice to Tenant within thirty (30)
days after receipt of Tenant's notice of any proposed Transfer (and any
additional information required or requested by Landlord in connection
therewith) to: (a) in the case of any Transfer, terminate this Lease as to the
Subject Space as of the effective date of the proposed Transfer, in which event
Tenant shall be relieved of all further obligations hereunder as to the Subject
Space as ot such date; or (b) in the case of a sublease, to sublease the Subject
Space from Tenant upon the terms and conditions set forth in Tenant's notice,
except that the rent shall be the lower of the per square foot monthly Base Rent
and additional Rent described in Articles 3 and 4 payable under this Lease for
the Subject Space, or that part of the rent and other consideration set forth in
Tenant's notice which is applicable to the Space. If Landlord exercises its
option to sublet the Subject Space, Tenant shall sublet the Subject Space to
Landlord upon the terms and conditions contained in Tenant's notice; provided,
however, that: (i) Landlord shall at all times under such sublease have the
right and option further to sublet the Subject Space without obtaining Tenant's
consent or sharing any of the economic consideration received by Landlord; (ii)
the provisions of Article 6 shall not be applicable thereto; (iii) Landlord and
its
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subtenants shall have the right to use in common with Tenant all lavatories,
corridors and lobbies which are within the Premises and the use of which is
reasonably required for the use of the Subject Space; (iv) Tenant shall have no
right of set-off or abatement or any other right to assert a default hereunder
by reason of any default by Landlord under such sublease; and (v) Landlord's
liability under such sublease shall not be deemed assumed or taken subject to by
any successor to Landlord's interest under this Lease. No failure of Landlord to
exercise either option with respect to the Subject Lease shall be deemed to be
Landlord's consent to the Transfer. If this Lease shall be terminated with
respect to less than the entire Premises, the Rent reserved herein shall be
prorated on the basis of the number of square feet of rentable area retained by
Tenant in proportion to the number of rentable square feet contained in the
Premises, this Lease as so amended shall continue thereafter in full force and
effect, and upon request of either party, the parties shall execute written
confirmation of the same.
(D) TERMS OF CONSENT. If Landlord consents to a Transfer, as some of the
conditions to the effectiveness thereof: (a) the terms and conditions of this
Lease, including among other things, Tenant's liability for the Subject Space,
shall in no way be deemed to have been waived or modified, (b) such consent
shall not be deemed consent to any further Transfer by either Tenant or a
Transferee, (c) no Transferee shall succeed to any rights provided in this Lease
or any amendment hereto to extend the Term of this Lease, expand the Premises,
or lease additional space, any such rights being deemed personal to Tenant, and
(d) Tenant shall deliver to Landlord promptly after execution, an original
executed copy of all documentation pertaining to the Transfer in form reasonably
acceptable to Landlord. Any sublease hereunder shall be subordinate and subject
to the provisions of this Lease, and if this Lease shall be terminated during
the term of any sublease for any reason, Landlord shall have the right, in its
sole discretion, to: (i) treat such sublease as canceled and repossess the
Subject Space by any lawful means, or (ii) require that such subtenant attorn to
and recognize Landlord as its landlord under any such sublease. If Tenant shall
be in Default hereunder, as described in Paragraph (A) of Article 20, Landlord
is hereby irrevocably authorized, as Tenant's agent and attorney-in-fact, to,
and may (but shall not be obligated to), direct any Transferee to make all
payments under or in connection with the Transfer directly to Landlord (which
Landlord shall apply towards Tenant's obligations under this Lease) until such
Default is cured. Regardless of Landlord's consent, no Transfer shall release
Tenant of Tenant's obligation or alter the primary liability of Tenant to pay
the Rent and to perform all other obligations to be performed by Tenant
hereunder. The acceptance of Rent by Landlord from any other person shall not be
deemed to be a waiver by Landlord of any provision hereof. Consent to one
Transfer shall not be deemed consent to any subsequent Transfer. In the event of
default by any assignee or successor of Tenant in the performance of any of the
terms hereof, Landlord may proceed directly against Tenant without the necessity
of exhausting remedies against said assignee or successor. Landlord may consent
to subsequent Transfers of the Lease or amendments or modifications to this
Lease with assignees of Tenant, without notifying Tenant, or any successor of
Tenant, and without obtaining its or their consent thereto and such action shall
not relieve Tenant or any successor of Tenant of liability under this Lease.
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(E) TRANSFER PREMIUM. If Landlord consents to a Transfer, and as a
condition thereto which the parties hereby agree is reasonable, Tenant shall pay
Landlord seventy-five percent (75%) of any Transfer Premium derived by Tenant
from such Transfer. "Transfer Premium" shall mean all rent, additional rent or
other consideration paid by such Transferee in excess of the Rent payable by
Tenant under this Lease (on a monthly basis during the Term, and on a per
rentable square foot basis, if less than all of the Premises is transferred),
after deducting the reasonable expenses incurred by Tenant for any changes,
alterations and improvements to the Premises, any other economic concessions or
services provided to the Transferee, and any customary brokerage commissions
paid in connection with the Transfer. If part of the consideration for such
Transfer shall be payable other than in cash, Landlord's share of such non-cash
consideration shall be in such form as is reasonably satisfactory to Landlord.
The percentage of the Transfer Premium due Landlord hereunder shall be paid
within ten (10) days after Tenant receives any Transfer Premium from the
Transferee.
(F) CERTIFICATE; ANNUAL STATEMENT. Tenant shall furnish upon Landlord's
request a complete statement, certified by an independent certified public
accountant, or Tenant's chief financial officer, setting forth in detail the
computation of any Transfer Premium Tenant has derived and shall derive from
such Transfer. In addition, Tenant shall deliver to Landlord a statement within
thirty (30) days after the end of each calendar year in which any part of the
Term occurs, and the end of the Term, specifying as to such calendar year each
sublease or assignment in effect during the period covered by such statement and
(i) the date of its execution and delivery, (ii) the number of square feet of
rentable area covered thereby, (iii) the term thereof, (iv) the rent charged
thereunder, and (v) the amount (if any) Transfer Premium paid and payable by
Tenant to Landlord. Landlord or its authorized representatives shall have the
right at all reasonable times to audit the books, records and papers of Tenant
relating to any Transfer, and shall have the right to make copies thereof. If
the Transfer Premium respecting any Transfer shall be found understated, Tenant
shall within thirty (30) days after demand pay the deficiency, and if
understated by more than 2%, Tenant shall pay Landlord's costs of such audit.
(G) CERTAIN TRANSFERS. For purposes of this Lease, the term "Transfer"
shall also include (a) if Tenant is a partnership, or limited liability company,
the withdrawal or change (whether voluntary, involuntary or by operation of taw)
of a majority of the partners or members, or any transfer of a majority of
partnership or membership interests or assets (as a consequence of a single
transaction or any number of separate transactions), or the dissolution of the
partnership or limited liability company, (b) if Tenant is a corporation whose
stock is not publicly held and not traded through an exchange or over the
counter, the dissolution, merger, consolidation or other reorganization of
Tenant, or (as a consequence of a single transaction or any number of separate
transactions): (i) the sale or other transfer of more than an aggregate of 50%
of the voting shares of Tenant, or (ii) the sale, mortgage, hypothecation or
pledge of more than an aggregate of 50% of Tenant's net assets, (c) If Tenant is
more than one Person, any Transfer by any one of the Persons comprising Tenant,
and (d) any Transfer by a Transferee.
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ARTICLE 18.
COMPLIANCE WITH LEGAL REQUIREMENTS
(A) At Tenant's sole cost, Tenant shall promptly comply with all Laws
(defined in Article 26) now in force or that may later be in force, including,
but not limited to, all provisions of the American With Disabilities Act, the
requirements of any board of fire underwriters or other similar body now or in
the future constituted, and any direction or occupancy certificate issued by
public officers (collectively "Legal Requirements"), insofar as they relate to
the condition, use, or occupancy of the Premises; except for (i) structural
changes or changes to the electrical, mechanical, or plumbing systems of the
Building, to the extent such changes are not necessitated by Tenant's acts or by
improvements made for Tenant and (ii) alterations or improvements to the
Building as a whole or the common areas of the Building.
(B) In the event that Landlord shall be required to comply with any
Legal Requirement as a result of any structural changes, changes to the
electrical, mechanical or plumbing systems of the Building or the Premises or
any alterations or improvements to the Building as a whole or the common areas
of the Building done solely for, the benefit of Tenant, any and all costs of
such changes, alterations and improvements together with any and all costs
associated with Landlord's compliance with Legal Requirements in connection
therewith shall be for the account of Tenant and Tenant shall within ten (10)
days of receipt pay all invoices therefor as additional rent.
(C) Landlord shall, at its own expense consistent with Article 26(H), be
responsible for complying with the Americans with Disabilities Act affecting the
Building common areas unless such compliance is necessitated by the particular
use of the Premises by Tenant for other than general business office purposes,
but may contest, appeal or defer such compliance provided that the use or
occupancy of the Premises by Tenant shall not be materially interfered with and
Tenant is not subject to prosecution for criminal offense by reason of such
noncompliance by Landlord.
ARTICLE 19.
RIGHTS RESERVED BY LANDLORD
Landlord reserves full rights to control the Property (which rights may
be exercised without subjecting Landlord to claims for constructive eviction,
abatement of Rent, damages or other claims of any kind), including more
particularly, but without limitation, the following rights:
(A) To change the name or street address of the Property; install and
maintain signs on the exterior and interior of the Property; retain at all
times, and use in appropriate instances, keys to all doors within and into the
Premises; grant to any Person the right to conduct any business or render any
service at the Property, whether or not it is the same or similar to the use
permitted Tenant by this Lease; and have access for Landlord and other tenants
of the Property to any mail chutes located on the Premises according to the
rules of the United States Postal Service.
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(B) To enter the Premises at reasonable hours for reasonable purposes,
including inspection and supplying cleaning service or other services to be
provided Tenant hereunder, to show the Premises to current and prospective
mortgage lenders, ground lessors, insurers and prospective purchasers, tenants
and brokers, and if Tenant shall abandon the Premises at any time, or shall
vacate the same during the last three months of the Term, to decorate, remodel,
repair or alter the Premises.
(C) To use any and all means which Landlord deems proper to enter the
Premises at any time in an emergency.
(D) To limit or prevent access to the Property, shut down elevator
service, activate elevator emergency controls, or otherwise take such action or
preventative measures deemed necessary by Landlord for the safety of tenants or
other occupants of the Property or the protection of the Property and other
property located thereon or therein, in case of fire, invasion, insurrection,
riot, civil disorder, public excitement or other dangerous condition, or threat
thereof.
(E) To decorate and to make alterations, additions and improvements,
structural or otherwise, in or to the Property or any part thereof, and any
adjacent building, structure, parking facility, land, street or alley (including
without limitation changes and reductions in corridors, lobbies, parking
facilities and other public areas and the installation of kiosks, planters,
sculptures, displays, escalators, mezzanines, and other structures, facilities,
amenities and features therein, and changes for the purpose of connection with
or entrance into or use of the Property in conjunction with any adjoining or
adjacent building or buildings, now existing or hereafter constructed). In
connection with such matters, or with any other repairs, maintenance,
improvements or alterations, in or about the Property, Landlord may erect
scaffolding and other structures reasonably required, and during such operations
may enter upon the Premises and take into and upon or through the Premises, all
materials required to make such repairs, maintenance, alterations or
improvements, and may close public entry ways, other public areas, restrooms,
stairways or corridors.
(F) To substitute for the Premises other premises (herein referred to as
the "new premises") at the Property, or another comparable building, provided:
(i) the new premises shall be similar to the Premises in area, (ii) Landlord
shall give Tenant at least thirty (30) days' written notice before making such
change; and (iii) if Tenant shall already have taken possession of the Premises:
(a) Landlord shall pay the direct, out-of-pocket, reasonable expenses of Tenant
in moving from the Premises to the new premises and improving the new premises
so that they are substantially similar to the Premises, and (b) such move shall
be made during evenings, weekends, or otherwise so as to incur the least
convenience to Tenant. In such case, the parties shall execute an amendment to
the Lease confirming the change within thirty (30) days after Landlord shall
request the same.
(G) To periodically remeasure the Property and/or the Premises, which
may result in an increase or decrease in the number of feet contained therein,
provided that such a remeasurement shall not (i) during the term in which such
remeasurement takes place, by itself result in an increase or decrease in the
Base Rent, or Tenant's Prorata Share of Taxes or Operating Expenses or any other
fee, charge or expense based on the area leased by Tenant; or (ii) under any
circumstances entitle
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Tenant to a refund or credit for any sums paid under this Lease. The parties
shall execute an amendment to the Lease confirming the measurement change within
thirty (30) days after Landlord shall request the same.
(H) To adjust the Expiration Date by either extending or truncating the
Expiration Date by up to a maximum of three (3) months (such adjusted Expiration
Date being referred to thereinafter as the "New Expiration Date"), provided that
Landlord shall give Tenant at least twenty-four (24) months' written notice of
such adjustment prior to the earlier of the Expiration Date or the New
Expiration Date. The parties shall execute an amendment to the Lease confirming
the change within thirty (30) days after Landlord shall request the same.
In connection with entering the Premises to exercise any of the
foregoing rights, Landlord shall: (a) provide reasonable advance written or oral
notice to Tenant's on-site manager or other appropriate person (except in
emergencies, or for routine cleaning or other routine matters), and (b) take
reasonable steps to minimize any interference with Tenant's business.
ARTICLE 20.
LANDLORD'S REMEDIES
(A) DEFAULT. The occurrence of any one or more of the following events
shall constitute a "Default" by Tenant, which shall give rise to Landlord's
remedies set forth in Paragraph (B) of this Article: (i) failure by Tenant to
make when due any payment of Rent; provided that on the first two occasions
during the Term (or any extension thereof) of Tenant's failure to pay Rent when
due, no Default shall be deemed to have occurred unless Tenant falls to pay Rent
within five (5) days following Landlord's written notice that said Rent is due
and payable; (ii) failure by Tenant to observe or perform any of the terms or
conditions of this Lease to be observed or performed by Tenant other than the
payment of Rent, or as provided below, unless such failure is cured within sixty
(60) days after notice, or such shorter period expressly provided elsewhere in
this Lease; (iii) failure by Tenant to comply with the Rules, unless such
failure is cured within five (5) days after notice; (iv) vacation of all or a
substantial portion of the Premises for more than thirty (30) consecutive days,
or the failure to take possession of the Premises within sixty (60) days after
the Commencement Date; (v) (a) making by Tenant or any guarantor of this Lease
("Guarantor") of any general assignment for the benefit of creditors, (b) filing
by or against Tenant or any Guarantor of a petition to have Tenant or such
Guarantor adjudged a bankrupt or a petition for reorganization or arrangement
under any Law (defined in Article 26) relating to bankruptcy (unless, in the
case of a petition filed against Tenant or such Guarantor, the same is dismissed
within sixty (60) days), (c) appointment of a trustee or receiver to take
possession of substantially all of Tenant's assets or of Tenant's interest in
this Lease, where possession is not restored to Tenant within thirty (30) days,
(d) attachment, execution or other judicial seizure of substantially all of
Tenant's assets or of Tenant's interest in this Lease, (e) Tenant's or any
Guarantor's convening of a meeting of its creditors or any class thereof for the
purpose of effecting a moratorium upon or composition of its debts, or (f)
Tenant's or any Guarantor's insolvency or admission of an inability to pay its
debts as
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they mature; (vi) any material misrepresentation herein, or material
misrepresentation or omission in any financial statements or other materials
provided by Tenant or any Guarantor in connection with negotiating or entering
this Lease or in connection with any Transfer under Article 17; (vii) making of
any Transfer in violation of Article 17; or (viii) cancellation or revocation of
any guaranty of this Lease by any Guarantor. Without limiting the foregoing,
failure by Tenant to comply with the same term or condition of this Lease on
three occasions during any twelve (12) month period shall cause any failure to
comply with such term or condition during the succeeding twelve month period, at
Landlord's option, to constitute an incurable Default if Landlord has given
Tenant notice of each such failure after each such failure occurs. The parties
acknowledge and agree that time is of the essence of this Lease and, to the
extent allowable by Law, the notice and cure periods provided herein are in lieu
of, and not in addition to, any notice and cure periods provided by Law.
(B) REMEDIES. If Tenant commits a Default, in addition to any other
right or remedy allowed under any Law or other provision of this Lease (all of
which remedies shall be distinct, separate and cumulative), Landlord may
terminate this Lease, repossess the Premises by unlawful detainer suit, summary
proceedings, or any other lawful means, and recover as damages a sum of money
equal to: (a) the worth at the time of award of the unpaid Rent which had been
earned at the time of termination; (b) the worth at the time of award of the
amount by which the unpaid Rent which would have been earned after termination
until the time of the award exceeds the amount of such Rent loss that Tenant
proves could have been reasonably avoided; (c) the worth at the time of award of
the amount by which the unpaid Rent for the balance of the Term after the time
of award exceeds the amount of such Rent loss that Tenant proves can reasonably
be avoided; and (d) any other amounts necessary to compensate Landlord for all
detriment or damages proximately caused by Tenant's failure to perform its
obligations under this Lease or that in the ordinary course would be likely to
result therefrom, including without limitation, all Costs of Reletting (as
defined in Paragraph (F) of this Article. For purposes of computing the amount
of Rent herein that would have accrued after the time of award, Tenant's Prorata
Share of Taxes and Operating Expenses shall be projected, based upon the average
rate of increase, if any, in such items from the Commencement Date through the
time of award. The "worth at the time of award" of the amounts referred to in
clauses (a) and (b) shall be computed by allowing interest at the Default Rate
(as defined in Article 26). The "worth at the time of award" of the amount
referred to in clause (c) 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 (1%).
(C) MITIGATION OF DAMAGES. If Landlord terminates this Lease or Tenant's
right to possession, Landlord shall use reasonable efforts to mitigate
Landlord's damages, and Tenant shall be entitled to submit proof of such failure
to mitigate as a defense to Landlord's claims hereunder, if mitigation of
damages by Landlord is required by applicable Law. If Landlord has not
terminated this Lease or Tenant's right to possession, Landlord shall have no
obligation to mitigate, and may permit the Premises to remain vacant or
abandoned, and shall have the remedies under California Civil Code, Section
1951.4, as the same may be modified or replaced hereafter; in such case, Tenant
may seek to mitigate damages by attempting to sublease the Premises or assign
this Lease subject to the provisions of Article 17.
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(D) SPECIFIC PERFORMANCE AND COLLECTION OF RENT. Landlord shall at all
times have the rights and remedies (which shall be cumulative with each other
and cumulative and in addition to those rights and remedies available under
Paragraph (B) of this Article above or any law or other provision of this
Lease), without prior demand or notice except as required by applicable Law: (i)
to seek any declaratory, injunctive or other equitable relief and specifically
enforce this Lease, or restrain or enjoin a violation or breach of any provision
hereof, and (ii) to xxx for and collect any unpaid Rent which has accrued.
(E) LATE CHARGES AND INTEREST. Tenant shall pay, as additional Rent, a
service charge of Two Hundred Dollars ($200.00) for bookkeeping and
administrative expenses, if Rent is not received within five (5) days after its
due date. In addition, any Rent paid more than five (5) days after due shall
accrue interest from the due date at the Default Rate (as defined in Article
26), until payment is received by Landlord. Such service charge and interest
payments shall not be deemed consent by Landlord to late payments, nor a waiver
of Landlord's right to insist upon timely payments at any time, nor a waiver of
any remedies to which Landlord is entitled as a result of the late payment of
Rent.
(F) CERTAIN DEFINITIONS. "Net Re-Letting Proceeds" shall mean the total
amount of rent and other consideration actually paid by any Replacement Tenants,
less all Costs of Re-Letting, during a given period of time. "Costs of
Re-Letting" shall include, without limitation, all reasonable costs and expenses
incurred by Landlord for any repairs, maintenance, changes, alterations and
improvements to the Premises, brokerage commissions, advertising costs,
attorneys' fees, any customary free rent periods or credits, tenant improvement
allowances, take-over lease obligations and other customary, necessary or
appropriate economic incentives reasonably required to enter into leases with
Replacement Tenants, and costs of collecting rent from Replacement Tenants.
"Replacement" shall mean any Person (as defined in Article 26) to whom Landlord
relets the Premises or any portion thereof pursuant to this Article.
(G) OTHER MATTERS. No re-entry or repossession, repairs, changes,
alterations and additions, reletting, acceptance of keys from Tenants, or any
other action or omission by Landlord shall be construed as an election by
Landlord to terminate this Lease or Tenant's right to possession, or accept a
surrender of the Premises, nor shall the same operate to release the Tenant in
whole or in part from any of Tenant's obligations hereunder, unless express
written notice of such intention is sent by Landlord to Tenant. To the fullest
extent permitted by Law, all rent and other consideration paid by any
Replacement Tenants shall be applied: first, to the Costs of Re-Letting, second,
to the payment of any Rent theretofore accrued, and the residue, if any, shall
be held by Landlord and applied to the payment of other obligations of Tenant to
Landlord as the same become due (with any remaining residue to be retained by
Landlord). Landlord may apply payments received from Tenant to any obligations
of Tenant then accrued, without regard to such obligations as may be designated
by Tenant. Landlord shall be under no obligation to observe or perform any
provision of this Lease on its part to be observed or performed which accrues
after the date of any Default by Tenant. Tenant hereby irrevocably waives any
right otherwise available under any Law to redeem or reinstate this Lease.
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ARTICLE 21.
LANDLORD'S RIGHT TO CURE
(A) If Landlord shall fail to perform any term or provision under this
Lease required to be performed by Landlord, Landlord shall not be deemed to be
in default hereunder nor subject to any claims for damages of any kind, unless
such failure shall have continued for a period of thirty (30) days after written
notice thereof by Tenant; provided, if the nature of Landlord's failure is such
that more than thirty (30) days are reasonably required in order to cure,
Landlord shall not be in default if Landlord commences to cure such failure
within such thirty (30) day period, and thereafter reasonably seeks to cure such
failure to completion. The aforementioned periods of time permitted for Landlord
to cure shall be extended for any period of time during which Landlord is
delayed in, or prevented from, curing due to fire or other casualty, strikes,
lock-outs or other labor troubles or shortages, shortages of equipment or
materials, governmental requirements, power shortages or outages, acts or
omissions by Tenant or other Persons, and other causes beyond Landlord's
reasonable control. If Landlord shall fail to cure within the times permitted
for cure herein, Landlord shall be subject to such remedies as may be available
to Tenant (subject to the other provisions of this Lease); provided, in
recognition that Landlord must receive timely payments of Rent and operate the
Property, Tenant shall have no right of self-help to perform repairs or any
other obligation of Landlord, and shall have no right to withhold, set-off or
xxxxx Rent.
(B) All agreements and provisions to be performed by Tenant under any of
the terms of this Lease shall be at its sole cost and expense and without any
abatement of Rent. If Tenant shall fail to pay any sum of money, other than
Rent, required to be paid by it hereunder, or shall fail to perform any other
act on its part to be performed hereunder and such failure shall continue for
ten (10) days after notice thereof by Landlord, or a shorter period if
additional damage may result, Landlord may, to protect its interests, but shall
not be obligated to do so, and without waiving or releasing Tenant from any of
its obligations, make any such payment or perform any such other act on Tenant's
part to be made or performed as provided herein. All sums so paid by Landlord
and all necessary incidental costs shall be deemed additional Rent hereunder and
shall be payable with interest from the date Landlord makes such payments until
paid by Tenant, at the Default Rate, and Landlord shall have (in addition to any
other right or remedy of Landlord) the same rights and remedies in the event of
the nonpayment thereof by Tenant as in the case of default by Tenant in the
payment of Rent.
ARTICLE 22.
RETURN OF POSSESSION
At the expiration of earlier termination of this Lease or Tenant's right
of possession, Tenant shall surrender possession of the Premises in the
condition required under Article 9, ordinary wear and tear and damage by
casualty or act of God under Article 13 excepted, and shall surrender all keys,
key cards, and any parking stickers, to Landlord, and advise Landlord as to the
combination of any locks or vaults then remaining in the Premises, and shall
remove all trade fixtures and
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personal property. All improvements, fixtures and other items in or upon the
Premises (except trade fixtures and personal property belonging to Tenant),
whether installed by Tenant or Landlord, shall be Landlord's property and shall
remain upon the Premises, all without compensation, allowance or credit to
Tenant. However, if prior to such termination or within ten (10) days thereafter
Landlord so directs by notice, Tenant shall promptly remove such of the
foregoing items as are designated in such notice and restore the Premises to the
condition prior to the installation of such items and as of the execution
hereof. If Tenant shall fail to perform any repairs or restoration, or fail to
remove any items from the Premises required hereunder, Landlord may do so, and
Tenant shall pay Landlord the cost thereof upon demand. All property removed
from the Premises by Landlord pursuant to any provisions of this Lease or any
Law may be handled or stored by Landlord at Tenant's expense, and Landlord shall
in no event be responsible for the value, preservation or safekeeping thereof.
All property not removed from the Premises or retaken from storage by Tenant
within thirty (30) days after expiration or earlier termination of this Lease or
Tenant's right to possession, shall at Landlord's option be conclusively deemed
to have been conveyed by Tenant to Landlord as if by xxxx of sale without
payment by Landlord. Unless prohibited by applicable Law, Landlord shall have a
lien against such property for the costs incurred in removing and storing the
same.
ARTICLE 23.
HOLDING OVER
Unless Landlord expressly agrees otherwise in writing, Tenant shall pay
Landlord 175% of the amount of Rent then applicable (or the highest amount
permitted by law, whichever shall be less) prorated on per diem basis for each
day Tenant shall retain possession of the Premises or any part thereof after
expiration or earlier termination of this Lease, together with all damages
sustained by Landlord on account thereof. The foregoing provisions shall not
serve as permission for Tenant to hold-over, nor serve to extend the Term
(although Tenant shall remain bound to comply with all provisions of this Lease
until Tenant vacates the Premises, and shall be subject to the provisions of
Article 22). Notwithstanding the foregoing to the contrary, at any time before
or after expiration or earlier termination of the Lease, Landlord may serve
notice advising Tenant of the amount of Rent and other terms required, should
Tenant desire to enter a month-to-month tenancy (and if Tenant shall hold over
more than one full calendar month after such notice, Tenant shall thereafter be
deemed a month-to-month tenant, on the terms and provisions of this Lease then
in effect, as modified by Landlord's notice, and except that Tenant shall not be
entitled to any renewal or expansion rights contained in this Lease or any
amendments hereto).
ARTICLE 24.
NO WAIVER
No provision of this Lease will be deemed waived by either party unless
expressly waived in writing signed by the waiving party. No waiver shall be
implied by delay, forbearance, failure to act or any other act or omission of
either party. No waiver by either party of any provision of this
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Lease shall be deemed a waiver of such provision with respect to any subsequent
matter relating to such provision, and Landlord's consent or approval respecting
any action by Tenant shall not constitute a waiver of the requirement for
obtaining Landlord's consent or approval respecting any subsequent action.
Acceptance of Rent by Landlord shall not constitute a waiver of any breach by
Tenant of any term or provision of this Lease. No acceptance of a lesser amount
than the Rent herein stipulated shall be deemed a waiver of Landlord's right to
receive the full amount due, nor shall any endorsement or statement on any check
or payment or any letter accompanying such check or payment be deemed an accord
and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the full amount due. The acceptance of
Rent or of the performance of any other term or provision from any Person other
than Tenant, including any Transferee, shall not constitute a waiver of
Landlord's right to approve or disapprove any Transfer.
ARTICLE 25.
ATTORNEYS' FEES AND JURY TRIAL
In the event of any litigation between the parties, the prevailing party
shall be entitled to obtain, as part of the judgment, all reasonable attorneys'
fees, costs and expenses incurred in connection with such litigation, except as
may be limited by applicable Law. In the interest of obtaining a speedier and
less costly hearing of any dispute, the parties hereby each irrevocably waive
the right to trial by jury.
ARTICLE 26.
CAPTIONS, DEFINITIONS AND SEVERABILITY
The captions of the Articles and Paragraphs of this Lease are for
convenience of reference only and shall not be considered or referred to in
resolving questions of interpretation. If any term or provision of this Lease
shall be found invalid, void, illegal, or unenforceable with respect to any
particular Person by a court of competent jurisdiction, it shall not affect,
impair or invalidate any other terms or provisions hereof, or its enforceability
with respect to any other Person, the parties hereto agreeing that they would
have entered into the remaining portion of this Lease notwithstanding the
omission of the portion or portions adjudged invalid, void, illegal, or
unenforceable with respect to such Person.
(A) "Building" shall mean the structure identified in Article 1 of this
Lease.
(B) "Default Rate" shall mean eighteen percent (18%) per annum, or the
highest rate permitted by applicable Law, whichever shall be less.
(C) "Holder" shall mean the holder of any Mortgage at the time in
question, and where such Mortgage is a ground lease, such term shall refer to
the ground lessor.
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(D) "Holidays" shall mean all federally observed holidays, including New
Year's Day, President's Day, Memorial Day, Independence Day, Labor Day,
Veterans' Day, Thanksgiving Day, Christmas Day, and to the extent of utilities
or services provided by union members engaged at the Property, such other
holidays observed by such unions.
(E) "Landlord" and "Tenant" shall be applicable to one or more Persons
as the case may be, and the singular shall include the plural, and the neuter
shall include the masculine and feminine; and if there be more than one, the
obligations thereof shall be joint and several. For purposes of any provisions
indemnifying or limiting the liability of Landlord, the term "Landlord" shall
include Landlord's present and future partners, members, beneficiaries,
trustees, officers, directors, employees, shareholders, principals, agents,
affiliates, successors and assigns.
(F) "Law" shall mean all federal, state, county and local governmental
and municipal laws, statutes, ordinances, rules, regulations, codes, decrees,
orders, and other such requirements, applicable equitable remedies and decisions
by courts in cases where such decisions are considered binding precedents in the
state in which the Property is located, and decisions of federal courts applying
the Laws of such State.
(G) "Mortgage" shall mean all mortgages, deeds of trust, ground leases
and other such encumbrances now or hereafter placed upon the Property or
Building, or any part thereof, and all renewals, modifications, consolidations,
replacements or extensions thereof, and all indebtedness now or hereafter
secured thereby and all interest thereon.
(H) "Operating Expenses" shall mean all expenses, costs and amounts
(other than Taxes) of every kind and nature which Landlord shall incur or pay
during any calendar year any portion of which occurs during the Term, because of
or in connection with the ownership, management, repair, maintenance,
restoration and operation of the Property, including, without limitation, any
amounts paid for: (a) utilities for the Property, including but not limited to,
electricity, power, gas, steam, oil or other fuel, water, sewer, lighting,
heating, air conditioning and ventilating, (b) permits, licenses and
certificates necessary to operate, manage and lease the Property, (c) insurance
applicable to the Property, not Limited to the amount of coverage Landlord is
required to provide under this Lease, (d) supplies, tools, equipment and
materials used in the operation, repair and maintenance of the Property, (e)
accounting, legal, inspection, consulting, concierge and other services, (f) any
equipment rental (or installment equipment purchase or equipment financing
agreements), or management agreements (including the cost of any management fee
actually paid thereunder and the fair rental value of any office space provided
thereunder, up to customary and reasonable amounts), (g) wages, salaries and
other compensation and benefits (including the fair value of any parking
privileges provided) for all persons engaged in the operation, maintenance or
security of the Property, and employer's Social Security taxes, unemployment
taxes or insurance, and any other taxes which may be levied on such wages,
salaries, compensation and benefits, (h) payments under any easement, operating
agreement, declaration, restrictive covenant or instrument pertaining to the
sharing of costs in any planned development, and (i) operation, repair and
maintenance of all Systems and Equipment and components thereof (including
replacement of components), janitorial
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service, alarm and security service, window cleaning, trash removal, elevator
maintenance, cleaning of walks, parking facilities and building walls, removal
of ice and snow, replacement of wall and floor coverings, ceiling tiles and
fixtures in lobbies, corridors, restrooms and other common or public areas or
facilities, maintenance and replacement of shrubs, trees, grass, sod and other
landscaped items, irrigation systems, drainage facilities fences, curbs and
walkways, re-paving and re-striping parking facilities, and roof repairs. If the
Property is not fully occupied during all or a portion of any calendar year,
Landlord may, in accordance with sound accounting and management practices,
determine the amount of variable Operating Expenses (i.e., those items which
vary according to occupancy levels) that would have been paid had the Property
been fully occupied, and the amount so determined shall be deemed to have been
the amount of variable Operating Expenses for such year. If Landlord makes such
an adjustment, Landlord shall make a comparable adjustment for the Base Expense
year. Notwithstanding the foregoing, Operating Expenses shall not, however,
include:
(i) depreciation, interest (except as set forth below with respect to
amortization of capital improvements) and amortization on Mortgages, and
other debt costs or ground lease payments, if any; legal fees in
connection with leasing, tenant disputes or enforcement of leases; real
estate brokers' leasing commissions; improvements or alterations to
tenant spaces; the cost of providing any service directly to and paid
directly by, any tenant; any costs expressly excluded from Operating
Expenses elsewhere in this Lease; costs of any items to the extent
Landlord receives reimbursement from insurance proceeds or from a third
party (such proceeds to be deducted from Operating Expenses in the year
in which received);
(ii) capital expenditures, except for: (a) the costs of any capital
improvements, equipment or devices installed or paid for by Landlord (1)
required or desired for the health and safety of tenants and occupants,
(2) to conform with any change in Laws, rules, regulations or
requirements of any governmental or quasi governmental authority having
jurisdiction not applicable to the Building as of the date of original
construction or of the board of fire underwriters or similar insurance
body, or (3) to effect a labor saving, energy saving or other economy,
amortized over the lesser of (A) three (3) years, (B) the "pay back
period," or (C) the useful Life of such capital improvement, equipment
or device (as determined by Landlord), as well as interest on the
unamortized balance at the Prime Rate, as defined in Paragraph (J)
below, on the date the costs are incurred or such higher rate as may
have been paid by Landlord on borrowed funds. The "pay back period"
shall be the period within which the anticipated savings from the use of
such capital improvement, equipment or device, as determined by
Landlord, will equal the cost of the subject capital improvement,
equipment or device; (b) the costs of (1) exterior window draperies and
coverings provided by Landlord, (2) carpeting and wall coverings in the
common areas, and (3) other furnishings in common areas which, as a
result of normal use, require periodic replacement, amortized over the
useful life of such improvements (as determined by Landlord), or such
longer period as may be determined by Landlord in its reasonable
discretion, as well as interest on the unamortized balance at the Prime
Rate on the date the costs are incurred or such higher rate as may have
been paid by Landlord on borrowed funds, if more than thirty-five
percent (35%) of the draperies, window coverings, carpeting or
furnishings are replaced during any
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calendar year. If thirty-five percent (35%) or less of the draperies,
window coverings, carpeting or furnishings are replaced during any
calendar year, then the entire cost of replacing such draperies, window
coverings, carpeting or furnishings shall be included in Operating
Expenses in the calendar year the cost is incurred; (c) depreciation or
amortization of the costs of materials, tools, supplies and equipment
purchased by Landlord to enable Landlord to supply services which
Landlord might otherwise contract for with a third party where such
depreciation and amortization would otherwise have been included in the
charge for such third party's services; and (d) costs of minor capital
improvements or expenditures where such improvement or expenditure costs
less than Ten Thousand Dollars ($10,000.00); and
(iii) any item not generally charged to other tenants in the Building
under office leases signed after the execution of this Lease.
(I) "Person" shall mean an individual, trust, partnership, joint
venture, association, limited liability company, corporation and any other
entity.
(J) "Prime Rate" shall mean the prime rate (or base rate) reported in
the Money Rates column or section of The Wall Street Journal as being the base
rate on corporate loans at large U.S. money center commercial banks (whether or
not such rate has actually been charged by any such bank) on the first day on
which The Wall Street Journal is published in the month preceding the month in
which the subject costs are incurred.
(K) "Property" shall mean the Building, and any common or public areas
or facilities, easements, corridors, lobbies, sidewalks, loading areas,
driveways, landscaped areas, skywalks, parking garages and lots, and any and all
other structures or facilities operated or maintained in connection with or for
the benefit of the Building, and all parcels or tracts of land on which all or
any portion of the Building or any of the other foregoing items are located, and
any fixtures, machinery, equipment, apparatus, Systems and Equipment, furniture
and other personal property located thereon or therein and used in connection
therewith, whether title is held by Landlord or its affiliates. Possession of
areas necessary for utilities, services, safety and operation of the Property,
including the Systems and Equipment (as defined in this Article), fire
stairways, perimeter walls, space between the finished ceiling of the Premised
and the slab of the floor or roof of the Property there above, and the use
thereof together with the right to install, maintain, operate, repair and
replace the Systems and Equipment including any of the same in, through, under
or above the Premises in locations that will not materially interfere with
Tenant's use of the Premises, are hereby excepted and reserved by Landlord, and
not demised to Tenant.
(L) "Rent" shall have the meaning specified therefor in Paragraph (H) of
Article 4.
(M) "Systems and Equipment" shall mean any plant, machinery,
transformers, duct work, cable, wires and other equipment, facilities, and
systems designed to supply heat, ventilation, air conditioning and humidity or
any other services or utilities, or comprising or serving as any
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component or portion of the electrical, gas, steam, plumbing, sprinkler,
communications, alarm, security, or fire/life/safety systems or equipment, or
any other mechanical, electrical, electronic, computer or other systems or
equipment for the Property.
(N) "Taxes" shall mean all federal, state, county or local governmental
or municipal taxes, fees, charge or other impositions of every kind and nature,
whether general, special, ordinary or extraordinary (including, without
limitation, real, estate taxes, general and special assessments, transit taxes,
water and sewer rents, taxes based upon the receipt of rent including gross
receipts or sales taxes applicable to the receipt of rent or service or value
added taxes (except to the extent paid by Tenant under Article 5), personal
property taxes imposed upon the fixtures, machinery, equipment, apparatus,
Systems and Equipment, appurtenances, furniture and other personal property used
in connection with the Property which Landlord shall pay during any calendar
year, any portion of which occurs during the Term (without regard to any
different fiscal year used by such government or municipal authority) because of
or in connection with the ownership, leasing and operation of the Property.
Notwithstanding the foregoing, there shall be excluded from Taxes all excess
profits taxes, franchise taxes, gift taxes, capital stock taxes, inheritance and
succession taxes, estate taxes, federal and state income taxes, and other taxes
to the extent applicable to Landlord's general or net income (as opposed to
rents, receipts or income attributable to operations at the Property). If the
method of taxation of real estate prevailing at the time of execution hereof
shall be, or has been altered, so as to cause the whole or any part of the taxes
now, hereafter or heretofore levied, assessed or imposed on real estate to be
levied, assessed or imposed on Landlord, wholly or partially, as a capital levy
or otherwise, or on or measured by the rents received therefrom, then such new
or altered taxes attributable to the Property shall be included within the term
"Taxes," except that the same shall not include any enhancement of said tax
attributable to other income of Landlord. Any expenses incurred by Landlord in
attempting to protest, reduce or minimize Taxes shall be included in Taxes in
the calendar year such expenses are paid. Tax refunds shall be deducted from
Taxes in the year they are received by Landlord, but if such refund shall relate
to taxes paid in a prior year of the Term, and the Lease shall have expired,
Landlord shall mail Tenant's Prorata Share of such net refund (after deducting
expenses and attorneys' fees), up to the amount Tenant paid towards Taxes during
such year, to Tenant's last known address. If Taxes for the Base Tax year are
reduced as the result of protest, or by means of agreement, or as the result of
legal proceedings or otherwise, Landlord may adjust Tenant's obligations for
Taxes in all years following the Tax Base Year, and Tenant shall pay Landlord
within 30 days after notice any additional amount required by such adjustment
for any such years or portions thereof that have therefore occurred. If Taxes
for any period during the Term or any extension thereof, shall be increased
after payment thereof by Landlord, for any reason, including without limitation,
error or reassessment by applicable governmental or municipal authorities,
Tenant shall pay Landlord upon demand Tenant's Prorata Share of such increased
Taxes. Tenant shall pay increased Taxes whether Taxes are increased as a result
of increases in the assessments or valuation of the Property (whether based on a
sale, change in ownership or refinancing of the Property or otherwise),
increases in the tax rates, reduction or elimination of any rollbacks or other
deductions available under current law, scheduled reductions of any tax
abatement, as a result of the elimination, invalidity or withdrawal of any tax
abatement, or for any other cause whatsoever. Notwithstanding the foregoing, if
any Taxes shall be paid based
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on assessments or bills by a governmental or municipal authority using a fiscal
year other than a calendar year, Landlord may elect to average the assessments
or bills for the subject calendar year, based on the number of months of such
calendar year included in each such assessment or xxxx.
(O) "Tenant's Prorata Share" of Taxes and Operating Expenses shall be
0.608%. Tenant acknowledges that the "rentable area of the Premises" under this
Lease includes the usable area, without deduction for columns or projections,
multiplied by a load or conversion factor, to reflect a share of certain areas,
which may include lobbies, corridors, mechanical, utility, janitorial, boiler
and service rooms and closets, restrooms and other public, common and service
areas. Except as provided expressly to the contrary herein, the "rentable area
of the Property" shall include all rentable area of all space leased or
available for lease at the Property, which Landlord may reasonably re-determine
from time to time, to reflect re-configurations, additions or modifications to
the Property. If the Property or any development of which it is a part, shall
contain non-office uses, Landlord shall have the right to determine in
accordance with sound accounting and management principles, Tenant's Prorata
Share of Taxes and Operating Expenses for only the office portion of the
Property or of such development, in which event, Tenant's Prorata Share shall be
based on the ratio of the rentable area of the Premises to the rentable area of
such office portion. Similarly, if the Property shall contain tenants who do not
participate in all or certain categories of Taxes or Operating Expenses on a
prorata basis, Landlord may exclude the amount of Taxes or Operating Expenses,
or such categories of the same, as the case may be, attributable to such
tenants, and exclude the rentable area of their premises, in computing Tenant's
Prorata Share. If the Property shall be part of or shall include a complex,
development or group of buildings or structures collectively owned or managed by
Landlord or its affiliates or collectively managed by Landlord's managing agent,
Landlord may allocate Taxes and Operating Expenses within such complex,
development or group, and between such buildings and structures and the parcels
on which they are located, in accordance with sound accounting and management
principles. In the alternative, Landlord shall have the right to determine, in
accordance with sound accounting and management principles, Tenant's Prorata
Share of Taxes and Operating Expenses based upon the totals of each of the same
for all such buildings and structures, the land constituting parcels on which
the same are located, and all related facilities, including common areas and
easements, corridors, lobbies, sidewalks, elevators, loading areas, parking
facilities and driveways and other appurtenances and public areas, in which
event Tenant's Prorata Share shall be based on the ratio of the rentable area of
the Premises to the rentable area of all such buildings.
ARTICLE 27.
CONVEYANCE BY LANDLORD AND LIABILITY
In case Landlord or any successor owner of the Property or the Building
shall convey or otherwise dispose of any portion thereof in which the Premises
are located, to another Person (and nothing herein shall be construed to
restrict or prevent such conveyance or disposition), such other Person shall
thereupon be and become landlord hereunder and shall be deemed to have fully
assumed and be liable for all obligations of this Lease to be performed by
Landlord which first arise after the
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date of conveyance, and Tenant shall attorn to such other Person, and Landlord
or such successor owner shall, from and after the date of conveyance, be free of
all liabilities and obligations hereunder not then incurred. The liability of
Landlord to Tenant for any default by Landlord under this Lease or arising in
connection herewith or with Landlord's operation, management, leasing, repair,
renovation, alteration or any other matter relating to the Property or the
Premises, shall be limited to the interest of Landlord in the Property (and the
rental proceeds thereof), and Tenant agrees to look solely to Landlord's
interest in the Property (and the rental proceeds thereof). Tenant agrees to
look solely to Landlord's interest in the Property (and the rental proceeds
thereof) for the recovery of any judgment against Landlord, and Landlord shall
not be personally liable for any such judgment or deficiency after execution
thereon. The limitations of liability contained in this Article shall apply
equally and inure to the benefit of Landlord's present and future partners,
beneficiaries, officers, directors, trustees, members, shareholders, agents and
employees, and their respective partners, heirs, successors and assigns. Under
no circumstances shall any present or future partner, member, shareholder, or
trustee or beneficiary (if Landlord or any partner, member or shareholder of
Landlord is a trust) have any liability for the performance of Landlord's
obligations under this Lease. Notwithstanding the foregoing to the contrary,
Landlord shall have personal liability for insured claims, beyond Landlord's
interest in the Property (and rental proceeds thereof), to the extent of
Landlord's liability insurance coverage available for such claims.
ARTICLE 28.
SAFETY AND SECURITY DEVICES, SERVICES AND PROGRAMS
The parties acknowledge that safety and security devices, services and
programs provided by Landlord, if any, while intended to deter crime and ensure
safety, may not in given instances prevent theft or other criminal acts, or
ensure safety of persons or property. The risk that any safety or security
device, service or program may not be effective, or may malfunction, or be
circumvented by a criminal, is assumed by Tenant with respect to Tenant's
property and interests, and Tenant shall obtain insurance coverage to the extent
Tenant desires protection against such criminal acts and other losses in
addition to insurance required to be carried by Tenant hereunder. Tenant agrees
to cooperate in any reasonable safety or security program developed by Landlord
or any program required by law.
ARTICLE 29.
COMMUNICATIONS AND COMPUTER LINES
(A) Tenant may install, maintain, replace, remove or use any
communications or computer wires, cables and relatediievices (collectively the
"Lines") at the Property in or serving the Premises, provided: (a) Tenant shall
obtain Landlord's prior written consent, use an experienced and qualified
contractor approved in writing by Landlord, and comply with all of the other
provisions of Article 10, (b) any such installation, maintenance, replacement,
removal or use shall comply with all Laws applicable thereto and good work
practices, and shall not interfere with the use of any then
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existing Lines at the Property, (c) an acceptable number of spare Lines and
space for additional Lines shall be maintained for existing and future occupants
of the Property, as determined in Landlord's reasonable opinion, (d) if Tenant
at any time uses any equipment that may create an electromagnetic field
exceeding the normal insulation ratings of ordinary twisted pair riser cable or
cause radiation higher than normal background radiation, the Lines therefor
(including riser cables) shall be appropriately insulated to prevent such
excessive electromagnetic fields or radiation, (e) as a condition to permitting
the installation of new Lines, Landlord may require that Tenant remove existing
Lines located in or serving the Premises, (f) Tenant's rights shall be subject
to the rights of any regulated telephone company, and (g) Tenant shall pay all
costs in connection therewith. Landlord reserves the right to require that
Tenant remove any Lines located in or serving the Premises which are installed
in violation of these provisions, or which are or become at any time in
violation of any Laws or represent a dangerous or potentially dangerous
condition (whether such Lines were installed by Tenant or any other party),
within three (3) days after written notice.
(B) Landlord may (but shall not have the obligation to): (i) install new
Lines at the Property, (ii) create additional space for Lines at the Property,
and (iii) reasonably direct, monitor and/or supervise the installation,
maintenance, replacement and removal of, the allocation and periodic
re-allocation of available space (if any) for, and the allocation of excess
capacity (if any) on, any Lines now or hereafter installed at the Property by
Landlord, Tenant or any other party (but Landlord shall have no right to monitor
or control the information transmitted through such Lines). Such rights shall
not be in limitation of other rights that may be available to Landlord by Law or
otherwise. If Landlord exercises any such rights, Landlord may charge Tenant for
the costs attributable to Tenant, or may include those costs and all other costs
in Operating Expenses under Article 26 (including, without limitation, costs for
acquiring and installing Lines and risers to accommodate new Lines and spare
Lines, any associated computerized system and software for maintaining records
of Line connections, and the fees of any consulting engineers and other
experts); provided, any capital expenditures included in Operating Expenses
hereunder shall be amortized (together with reasonable finance charges) over the
period of time prescribed by Paragraph (H)(ii) of Article 26.
(C) Notwithstanding anything to the contrary contained in Article 22,
Landlord reserves the right to require that Tenant remove any or all Lines
installed by or for Tenant within or serving the Premises upon termination of
this Lease, provided Landlord notifies Tenant prior to or within thirty (30)
days following such termination. Any Lines not required to be removed pursuant
to this Article shall, at Landlord's option, become the property of Landlord
without payment by Landlord. If Tenant fails to remove such lines as required by
Landlord, or violates any other provision of this Article, Landlord may, after
twenty (20) days' written notice to Tenant, remove such Lines or remedy such
other violation, at Tenant's expense (without limiting Landlord's other remedies
available under this Lease or applicable Law). Tenant shall not, without the
prior written consent of Landlord in each instance , grant to any third party, a
security interest or lien in or on the Lines, and any such security interest or
lien granted without Landlord's written consent shall be null and void. Except
to the extent arising from the intentional or grossly negligent acts of Landlord
or Landlord's agents or employees, Landlord shall have no liability for damages
arising from, and
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Landlord does not warrant that the Tenant's use of any Lines will be free from
the following (collectively called "Line Problems"), (x) any eavesdropping or
wiretapping by unauthorized parties, (y) any failure of any Lines to satisfy
Tenant's requirements, or (z) any shortages, failures, variations,
interruptions, disconnections, loss or damage caused by the installation,
maintenance, replacement, use or removal of Lines by or for other tenants or
occupants of the Property, by any failure of the environmental conditions or the
power supply for the Property to conform to any requirements for the Lines or
any associated equipment, or any other problems associated with any Lines by any
other cause. Under no circumstances shall any Line Problems be deemed an actual
or constructive eviction of Tenant, render Landlord liable to Tenant for
abatement of Rent, or relieve Tenant from performance of Tenant's obligations
under this Lease. Landlord in no event shall be liable for damages by reason of
loss of profits, business interruption or other consequential damage arising
from any Line Problems.
ARTICLE 30.
HAZARDOUS MATERIALS
(A) Tenant shall not transport, use, store, maintain, generate,
manufacture, handle, dispose, release or discharge any "Hazardous Material" (as
defined below) upon or about the Property, or permit Tenant's employees, agents,
contractors and other occupants of the Premises to engage in such activities
upon or about the Property. However, the foregoing provisions shall not prohibit
the transportation to and from, and use, storage, maintenance and handling
within, the Premises of substances customarily used in offices (or such other
business or activity expressly permitted to be undertaken in the Premises under
Article 7), provided: (a) such substances shall be used and maintained only in
such quantities as are reasonably necessary for such permitted use of the
Premises, strictly in accordance with applicable Law and the manufacturers'
instructions therefor, (b) such substances shall not be disposed of, released or
discharge on the Property, and shall be transported to and from the Premises in
compliance with all applicable laws, and as Landlord shall reasonably require,
(c) if any applicable Law or Landlord's trash removal contractor requires that
any such substances be disposed of separately from ordinary trash, Tenant shall
make arrangements at Tenant's expense for such disposal directly with a
qualified and licensed disposal company at a lawful disposal site (subject to
scheduling and approval by Landlord), and shall ensure that disposal occurs
frequently enough to prevent unnecessary storage of such substances in the
Premises, and (d) any remaining such substances shall be completely, properly
and lawfully removed from the Property upon expiration or earlier termination of
this Lease.
Tenant shall promptly notify Landlord of: (i) any enforcement, cleanup
or other regulatory action taken or threatened by any governmental or regulatory
authority with respect to the presence of any Hazardous Material on the Premises
or the migration thereof from or to other property, (ii) any demands or claims
made or threatened by any party against Tenant or the Premises relating to any
loss or injury resulting from any Hazardous Materials, (iii) any release,
discharge or nonroutine, improper or unlawful disposal or transportation of any
Hazardous Material on or from the Premises, and (iv) any matters where Tenant is
required by Law to give a notice to any governmental or
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regulatory authority respecting any Hazardous Material on the Premises. Landlord
shall have the right (but not the obligation) to join and participate as a party
in any legal proceedings or actions affecting the Premises initiated in
connection with any environmental, health or safety Law. At such times as
Landlord may reasonably request, Tenant shall provide Landlord with a written
list identifying any Hazardous Material then used, stored, or maintained upon
the Premises, the use and approximate quantity of each such material, a copy of
any material safety data sheet ("MSDS") issued by the manufacturer therefor,
written information concerning the removal, transportation and disposal of the
same, and such other information as Landlord may reasonably require or as may be
required by Law. The term "Hazardous Material" for purposes hereof shall mean
any chemical substance, material or waste or component thereof which is now or
hereafter listed, defined or regulated as a hazardous or toxic chemical,
substance, material or waste or component thereof by any federal, state or local
governing or regulatory body having jurisdiction, or which would trigger any
employee or community "right-to-know" requirements adopted by any such body, or
for which any such body has adopted any requirements for the preparation or
distribution of an MSDS.
If any Hazardous Material is released, discharged or disposed of by
Tenant or any other occupant of the Premises, or their employees, agents or
contractors, on or about the Property in violation of the foregoing provisions,
Tenant shall immediately, properly and in compliance with applicable Laws clean
up and remove the Hazardous Material from the Property and any other affected
property and clean or replace any affected personal property (whether or not
owned by Landlord), at Tenant's expense. Such cleanup and removal work shall be
subject to Landlord's prior written approval (except in emergencies), and shall
include, without limitation, any testing, investigation, and the preparation and
implementation of any remedial action plan required by any governmental body
having jurisdiction or reasonably required by Landlord. If Tenant shall fall to
comply with the provisions of this Article within five (5) days after written
notice by Landlord, or such shorter time as may be required by Law or in order
to minimize any hazard to Persons or property, Landlord may (but shall not be
obligated to) arrange for such compliance directly or as Tenant's agent through
contractors or other parties selected by Landlord, at Tenant's expense (without
limiting Landlord's other remedies under this Lease or applicable Law). If any
Hazardous Material is released, discharged or disposed of on or about the
Property and such release, discharge or disposal is not caused by Tenant or
other occupants of the Premises, or their employees, agents or contractors, such
release, discharge or disposal shall be deemed casualty damage under Article 13
to the extent that the Premises or common areas serving the Premises are
affected thereby; in such case, Landlord and Tenant shall have the obligations
and rights respecting such casualty damage provided under Article 13.
(B) The parties acknowledge that the material used in certain of the
fire-proofing materials applied to certain structural members in the Building
and Property (which structural members are primarily located above the ceiling
in the Premises) contains asbestos. In order to preserve the air quality of the
Building and Property, Landlord has established, and from time to time may
modify, rules and regulations governing the manner in which alterations and
improvements are to be undertaken in the areas where the subject fire-proofing
is located. Tenant shall comply with all such rules and regulations established
by Landlord. If any governmental entity promulgates or
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revises a statute, ordinance, code or regulation, or imposes mandatory or
voluntary controls or guidelines with respect to the subject asbestos
fire-proofing, or if Landlord is required or elects to make alterations or to
remove the subject asbestos fire-proofing, Landlord may, in its sole discretion,
comply with such mandatory or voluntary controls or guidelines, or make such
alterations or remove such asbestos fire-proofing. Neither such compliance nor
the making of alterations, nor the removal of all or a portion of such asbestos
fire-proofing shall in any event entitle Tenant to any damages, relieve Tenant
of the obligation to pay any sums due hereunder, or constitute or be construed
as a constructive or other eviction of Tenant. In accordance with Proposition 65
and the regulations promulgated thereunder which require that person subject to
"environmental exposure" to certain designated chemicals, such as asbestos,
receive warnings, you are advised that:
WARNING: THE BUILDING CONTAINS ASBESTOS, A
CHEMICAL KNOWN TO THE STATE OF CALIFORNIA TO
CAUSE CANCER.
ARTICLE 31.
MISCELLANEOUS
(A) Each of the terms and provisions of this Lease shall be binding upon
and inure to the benefit of the parties hereto, their respective heirs,
executors, administrators, guardians, custodians, permitted successors and
assigns, subject to the provisions of Article 17 respecting Transfers.
(B) Neither this Lease nor any memorandum of lease or short form lease
shall be recorded by Tenant.
(C) This Lease shall be construed in accordance with the Laws of the
state of California.
(D) All obligations or rights of either party arising during or
attributable to the period ending upon expiration or earlier termination of this
Lease shall survive such expiration or earlier termination.
(E) Landlord agrees that, if Tenant timely pays the Rent and performs
the terms and provisions hereunder, and subject to all other terms and
provisions of this Lease, Tenant shall hold and enjoy the Premises during the
Term, free of lawful claims by any Person acting by or through Landlord.
(F) This Lease does not grant any legal rights to "light and air"
outside the Premises nor any particular view or cityscape visible from the
Premises.
(G) If the Commencement Date is delayed in accordance with Article 2 for
more than one year, Landlord or Tenant may declare this Lease null and void, and
if the Commencement Date is
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so delayed for more than seven years, this Lease shall thereupon become null and
void without further action by either party.
(H) All remedies hereinbefore and hereafter conferred upon Landlord
shall be deemed cumulative and no one shall be exclusive of the other, or shall
in any way limit the availability to Landlord of any other remedy conferred by
law, whether or not specifically conferred by the provisions of this Lease.
ARTICLE 32.
OFFER
The submission and negotiation of this Lease shall not be deemed an
offer to enter the same by Landlord, but the solicitation of such an offer by
Tenant. Tenant agrees that its execution of this Lease constitutes a firm offer
to enter the same which may not be withdrawn for a period of 30 days after
delivery to Landlord (or such other period as may be expressly provided in any
other agreement signed by the parties). During such period and in reliance on
the foregoing, Landlord may, at Landlord's option (and shall, if required by
applicable Law), deposit any security deposit and Rent, and proceed with any
plans, specifications, alterations or improvements, and permit Tenant to enter
the Premises, but such acts shall not be deemed an acceptance of Tenant's offer
to enter this Lease, and such acceptance shall be evidenced only by Landlord
signing and delivering this Lease to Tenant.
ARTICLE 33.
NOTICES
Except as expressly provided to the contrary in this Lease, every notice
or other communication to be given by either party to the other with respect
hereto or to the Premises or Property, shall be in writing and shall not be
effective for any purpose unless the same shall be served personally or by
national air courier service, or United States certified mail, return receipt
requested, postage prepaid, addressed, if to Tenant, at the address first set
forth in the Lease, until the Commencement Date, and thereafter to the Tenant at
the Premises, and if to Landlord, at the address at which the last payment of
Rent was required to be made and to Pine Street Investors I, L.L.C., c/x
Xxxxxxxxx Xxxxxxxxx, Inc., at 000 Xxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000,
Attn: Xxxxxx Xxxxxxxxx, or such other address or addresses as Tenant or Landlord
may from time to time designate by notice given as above provided. Every notice
or other communication hereunder shall be deemed to have been given as of the
third business day following the date of such mailing (or as of any earlier date
evidenced by a receipt from such national air courier service or the United
States Postage Service) or immediately if personally delivered. Notices not sent
in accordance with the foregoing shall be of no force or effect until received
by the foregoing parties at such addressed required herein.
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ARTICLE 34.
REAL ESTATE BROKERS
Tenant represents that it has dealt only with X.X. COMMERCIAL (whose
commission, if any, shall be paid by Landlord pursuant to separate agreement) as
broker, agent or finder in connection with this Lease and agrees to indemnify
and hold Landlord harmless from all damages, judgments, liabilities and expenses
(including reasonable attorneys' fees) arising from any claims or demands of any
other broker, agent or finder with whom Tenant has dealt or is claimed to have
dealt for any commission or fee alleged to be due in connection with its
participation in the procurement of Tenant or the negotiation with Tenant or
execution of this Lease.
ARTICLE 35.
SECURITY DEPOSIT
Tenant shall deposit with Landlord the sum of $9,176.25 ("Security
Deposit"), upon Tenant's execution and submission of this Lease. The Security
Deposit shall serve as security for the prompt, full and faithful performance by
Tenant of the terms and provisions of this lease. In the event that Tenant is in
Default hereunder, or in the event that Tenant owes any amounts to Landlord upon
the expiration of this Lease, Landlord may use or apply the whole or any part of
the Security Deposit for the payment of Tenant's obligations hereunder. The use
or application of the Security Deposit or any portion thereof shall not prevent
Landlord from exercising any other right or remedy provider hereunder or under
any Law and shall not be construed as liquidated damages. In the event the
Security Deposit is reduced by such use or application, Tenant shall deposit
with Landlord within ten (10) days after written notice, an amount sufficient to
restore the full amount of the Security Deposit. Landlord shall not be required
to keep the Security Deposit separate from Landlord's general funds or pay
interest on the Security Deposit. Any remaining portion of the Security Deposit
shall be returned to Tenant within sixty (60) days after Tenant has vacated the
Premises in accordance with Article 22. If the Premises shall be expanded at any
time, or if the Term shall be extended at an increased rate of Rent, the
Security Deposit shall thereupon be proportionately increased.
ARTICLE 36.
ENTIRE AGREEMENT
This Lease, together with Rider One and Exhibit A (WHICH COLLECTIVELY
ARE HEREBY INCORPORATED WHERE REFERRED TO HEREIN AND MADE A PART HEREOF AS
THOUGH FULLY SET FORTH), contains all the terms and provisions between Landlord
and Tenant relating to the matters set forth herein, and no prior or
contemporaneous agreement or understanding pertaining to the same shall be of
any force or effect, except any such contemporaneous agreement specifically
referring to and modifying this Lease, signed by both parties. Without
limitation as to the generality of the foregoing, Tenant hereby acknowledges and
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agrees that Landlord's leasing agents and field personnel are only authorized to
show the Premises and negotiate terms and conditions for leases subject to
Landlord's final approval, and are not authorized to make any agreements,
representations, understandings or obligations, binding upon Landlord,
respecting the condition of the Premises or Property, suitability of the same
for Tenant's business, or any other matter, and no such agreements,
representations, understandings or obligations not expressly contained herein or
in such contemporaneous written agreement shall be of any force or effect.
Neither this Lease, nor any Riders or Exhibits referred to above, may be
modified, except in writing signed by both parties.
LANDLORD:
PINE STREET INVESTORS I, L.L.C.
a Delaware limited liability company
By: XXXXXXXXX XXXXXXXXX, INC.,
a California corporation, as agent
for Pine Street Investors I, L.L.C.
By: /s/ Xxxx Xxxxxxxxx
-----------------------------------
Xxxx Xxxxxxxxx
Its:
----------------------------------
TENANT:
FIDELITY NATIONAL TITLE INSURANCE COMPANY,
a California corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
---------------------------------
Its: Vice President
----------------------------------
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RIDER ONE
RULES
(1) On Saturdays, Sundays and Holidays, and on other days between the
hours of 6:00 p.m. and 8:00 a.m. the following day, or such other hours as
Landlord shall determine from time to time, access to the Property and/or the
passageways, entrances, exits, shipping areas, halls, corridors, elevators or
stairways and other areas in the Property may be restricted and access gained by
use of a key to the outside doors of the Property, or pursuant to such security
procedures Landlord may from time to time impose. All such areas, and all roofs,
are not for use of the general public and Landlord shall in all cases retain the
right to control and prevent access thereto by all persons whose presence in the
judgment of Landlord shall be prejudicial to the safety, character, reputation
and interests of the Property and its tenants provided, however, that nothing
herein contained shall be construed to prevent such access to persons with whom
Tenant deals in the normal course of Tenant's business unless such persons are
engaged in activities which are illegal or violate these Rules. No Tenant and no
employee or invitee of Tenant shall enter into areas reserved for the exclusive
use of Landlord, its employees or invitees. Tenant shall keep doors to corridors
and lobbies closed except when persons are entering or leaving.
(2) Tenant shall not paint, display, inscribe, maintain or affix any
sign, placard, picture, advertisement, name, notice, lettering or direction on
any part of the outside or inside of the Property, or on any part of the inside
of the Premises which can be seen from the outside of the Premises, without the
prior consent of Landlord, and then only such name or names or matter and in
such color, size, style, character and material as may be first approved by
Landlord in writing. Landlord shall prescribe the suite number and
identification sign for the Premises (which shall be prepared and installed by
Landlord at Tenant's expense). Landlord reserves the right to remove at Tenant's
expense all matter not so installed or approved without notice to Tenant.
(3) Tenant shall not in any manner use the name of the Property for any
purpose other than that of the business address of the Tenant, or use any
picture or likeness of the Property, in any letterheads, envelopes, circulars,
notices, advertisements, containers or wrapping material without Landlord's
express consent in writing.
(4) Tenant shall not place anything or allow anything to be placed in
the Premises near the glass of any door, partition, wall or window which may be
unsightly from outside the Premises, and Tenant shall not place or permit to be
placed any article of any kind on any window ledge or on the exterior walls.
Blinds, shades, awnings or other forms of inside or outside window ventilators
or similar devices, shall not be placed in or about the outside windows in the
Premises except to the extent, if any, that the character, shape, color,
material and make thereof is first approved by the Landlord.
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(5) Furniture, freight and other large or heavy articles, and all other
deliveries may be brought into the Property only at times and in the manner
designated by Landlord, and always at the Tenant's sole responsibility and risk.
Landlord may impose reasonable charges for use in freight elevators after or
before normal business hours. All damage done to the Property by moving or
maintaining such furniture, freight or articles shall be repaired by Landlord at
Tenant's expense. Landlord may inspect items brought into the Property or
Premises with respect to weight or dangerous nature. Landlord may require that
all furniture, equipment, cartons and similar articles removed from the Premises
or the Property be listed and a removal permit therefor first be obtained from
Landlord. Tenant shall not take or permit to be taken in or out of other
entrances or elevators of the Property, any item normally taken, or which
Landlord otherwise reasonably requires to be taken, in or out through service
doors or on freight elevators. Tenant shall not allow anything to remain in or
obstruct in any way, any lobby, corridor, sidewalk, passageway, entrance, exit,
hall, stairway, shipping area, or other such area. Tenant shall move all
supplies, furniture and equipment as soon as received directly to the Premises,
and shall move all such items and waste (other than waste customarily removed by
Property employees) that are at any time being taken from the Premises directly
to the areas designated for disposal. Any hand-carts used at the Property shall
have rubber wheels.
(6) Tenant shall not overload any floor or part thereof in the Premises,
or Property, including any public corridors or elevators therein bringing in or
removing any large or heavy articles, and Landlord may direct and control the
location of safes, and all other heavy articles and require supplementary
supports at Tenant's expense of such material and dimensions as Landlord may
deem necessary to properly distribute the weight.
(7) Tenant shall not attach or permit to be attached additional locks or
similar devices to any door or window, change existing locks or the mechanism
thereof, or make or permit to be made any keys for any door other than those
provided by Landlord. If more than two keys for one lock are desired, Landlord
will provide them upon payment therefor by Tenant. Tenant, upon termination of
its tenancy, shall deliver to the Landlord all keys of offices, rooms and toilet
rooms which have been furnished Tenant or which the Tenant shall have had made,
and in the event of loss of any keys so furnished shall pay Landlord therefor.
(8) If Tenant desires signal, communication, alarm or other utility or
similar service connections installed or changed, Tenant shall not install or
change the same without the prior approval of Landlord, and then only under
Landlord's direction at Tenant's expense. Tenant shall not install in the
Premises any equipment which requires more electric current than Landlord is
required to provide under this Lease, without Landlord's prior approval, and
Tenant shall ascertain from Landlord the maximum amount of load or demand for or
use of electrical current which can safely be permitted in the Premises, taking
into account the capacity of electric wiring in the Property and the Premises
and the needs of tenants of the Property, and shall not in any event connect a
greater load than such safety capacity.
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(9) Tenant shall not obtain for use upon the Premises ice, drinking
water, towel, janitor and other similar services, except from Persons approved
by the Landlord. Any Person engaged by Tenant to provide janitor or other
services shall be subject to direction by the manager or security personnel of
the Property.
(10) The toilet rooms, urinals, wash bowls and other such apparatus
shall not be used for any purpose other than that for which they were
constructed and no foreign substance of any kind whatsoever shall be thrown
therein and the expense of any breakage, stoppage or damage resulting from the
violation of this Rule shall be borne by the Tenant who, or whose employees or
invitees shall have caused it.
(11) The janitorial closets, utility closets, telephone closets, broom
closets, electrical closets, storage closets, and other such closets, rooms and
areas shall be used only for the purposes and in the manner designated by
Landlord, and may not be used by tenants, or their contractors, agents,
employees, or other parties without Landlord's prior written consent.
(12) Landlord reserves the right to exclude or expel from the Property
any person who, in the judgment of Landlord, is intoxicated or under the
influence of liquor or drugs, or who shall in any manner do any act in violation
of any of these Rules. Tenant shall not at any time manufacture, sell use or
give away, any spirituous, fermented, intoxicating or alcoholic liquors on the
Premises, nor permit any of the same to occur (except in connection with
occasional social or business events conducted in the Premises which do not
violate any Laws nor bother or annoy any other tenants). Tenant shall not at any
time sell, purchase or give away, foods in any form by or to any of Tenant's
agents or employees or any other parties on the Premises, nor permit any of the
same to occur (other than in lunch rooms or kitchens for employees as may be
permitted or installed by Landlord, which does not violate any Laws or bother or
annoy any other tenant).
(13) Tenant shall not make any room-to-room canvass to solicit business
or information or to distribute any article or material to or from other tenants
or occupants of the Property and shall not exhibit, sell or offer to sell, use,
rent or exchange any products or services in or from the Premises unless
ordinarily embraced within the Tenant's use of the Premises specified in the
Lease.
(14) Tenant shall not waste electricity, water, heat or air conditioning
or other utilities or services, and agrees to cooperate fully with Landlord to
assure the most effective and energy efficient operation of the Property and
shall not allow the adjustment (except by Landlord's authorized Property
personnel) of any controls. Tenant shall keep corridor doors closed and shall
not open any windows, except that if the air circulation shall not be in
operation, windows which are openable may be opened with Landlord's consent. As
a condition to claiming any deficiency in the air conditioning or ventilation
services provided by Landlord, Tenant shall close any blinds or drapes in the
Premises to prevent or minimize direct sunlight.
(15) Tenant shall conduct no auction, fire or going out of business sale
or bankruptcy sale in or from the Premises, and such prohibition shall apply to
Tenant's creditors.
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(16) Tenant shall cooperate and comply with any reasonable safety or
security programs, including fire drills and air raid drills, and the
appointment of "fire wardens" developed by Landlord for the Property, or
required by Law. Before leaving the Premises unattended, Tenant shall close and
securely lock all doors or other means of entry to the Premiss and shut off all
lights and water faucets in the Premises (except heat to the extent necessary to
prevent the freezing or bursting of pipes).
(17) Tenant will comply with all municipal, county, state, federal or
other government laws, statutes, codes, regulations and other requirements,
including without limitation, environmental, health, safety and police
requirements and regulations respecting the Premises, now or hereinafter in
force, at its sole cost, and will not use the Premises for any immoral purposes.
(18) Tenant shall not (i) carry on any business, activity or service
except those ordinarily embraced within the permitted use of the Premises
specified in the Lease and more particularly, but without limiting the
generality of the foregoing, shall not (ii) install or operate any internal
combustion engine, boiler, machinery, refrigerating, heating or air conditioning
equipment in or about the Premises, (iii) use the Premises for housing, lodging
or sleeping purposes or for the washing of clothes, (iv) place any radio or
television antennae other than inside of the Premises, (v) operate or permit to
be operated any musical or sound producing instrument or device which may be
heard outside the Premises, (vi) use any source of power other than electricity,
(vii) operate any electrical or other device from which may emanate electrical
or other waves which may interfere with or impair radio, television, microwave,
or other broadcasting or reception from or in the Property or elsewhere, (viii)
bring or permit any bicycle or other vehicle, or dog (except in the company of a
blind person or except when specifically permitted) or other animal or bird in
the Property, (ix) make or permit objectionable noise or odor to emanate from
the Premises (x) do anything in or about the Premises tending to create or
maintain a nuisance or do any act tending to injure the reputation of the
Property, (xi) throw or permit to be thrown or dropped any article from any
window or other opening in the Property, (xii) use or permit upon the Premises
anything that will invalidate or increase the rate of insurance on any policies
of insurance now or hereafter carried on the Property or violate the
certificates of occupancy issued for the premises or the Property, (xiii) use
the Premises for any purpose, or permit upon the Premises anything, that may be
dangerous to person or property (including but not limited to flammable oils,
fluids, paints, chemicals, firearms or any explosive articles or materials) nor
(xiv) do or permit anything to be done upon the Premises in any way tending to
disturb any other tenant at the Property or the occupants of neighboring
property.
(19) If the Property shall now or hereafter contain a building garage,
parking structure or other parking area or facility, the following Rules shall
apply in such areas or facilities:
(i) Parking shall be available in areas designated generally
for tenant parking, for such daily or monthly charges as Landlord
may establish from time to time, or as may be provided in any
parking Agreement attached hereto (which, when signed by both
parties as provided therein, shall thereupon become effective). In
all cases, parking for Tenant and its employees and visitors shall
be on a "first come, first served," unassigned basis, with Landlord
and other tenants at the Property, and their
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employees and visitors, and other Persons (as defned in Article
26 of the Lease) to whom Landlord shall grant the right or who
shall otherwise have the right to use the same, all subject to
these Rules, as the same may be amended or supplemented, and
applied on a non-discriminatory basis, as is further described
in Article 6 of the lease. Notwithstanding the foregoing to the
contrary, Landlord reserves the right to assign specific spaces,
and to reserve spaces for visitors, small cars, handicapped
individuals, and other tenants, visitors of tenants or other
Persons, and Tenant and its employees and visitors shall not
park in any such assigned or reserved spaces. Landlord may
restrict or prohibit full size vans and other large vehicles.
(ii) In case of any violation of these provisions, Landlord may
refuse to permit the violator to park, and may remove the
vehicle owned or driven by the violator from the Property
without liability whatsoever, at such violator's risk and
expense. Landlord reserves the right to close all or a portion
of the parking areas or facilities in order to make repairs or
performance maintenance services, or to alter, modify, re-stripe
or renovate the same, or if required by casualty, strike,
condemnation, act of God, Law or governmental requirement, or
any other reason beyond Landlord's reasonable control. In the
event access is denied for any reason, any monthly parking
charges shall be abated to the extent access is denied, as
Tenant's sole recourse. Tenant acknowledges that such parking
areas or facilities may be operated by an independent contractor
not affiliated with Landlord, and Tenant acknowledges that in
such event, Landlord shall have no liability for claims arising
through acts or omissions of such independent contractor, if
such contractor is reputable.
(iii) Hours shall be 6 a.m. to 8 p.m., Monday through Friday,
and 10:00 a.m. to 1:00 p.m. on Saturdays, or such other hours as
may be reasonably established by Landlord or its parking
operator from time to time; cars must be parked entirely within
the stall lines, and only small cars may be parked in areas
reserved for small cars; all directional signs and arrows must
be observed; the speed limit shall be 5 miles per hour; spaces
reserved for handicapped parking must be used only by vehicles
property designated; every xxxxxx is required to park and lock
his own car; washing, waxing, cleaning or servicing of any
vehicle is prohibited; parking areas may be used only for
parking automobiles; parking is prohibited in areas: (a) not
striped or designated for parking, (b) aisles, (c) where "no
parking" signs are posted, (d) ramps, and (e) loading areas and
other specially designated areas. Delivery trucks and vehicles
shall use only those areas designated therefor.
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