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BASIC LEASE INFORMATION
OFFICE LEASE
Lease Date: May 15, 1996
Landlord: Bayfair Building, a California partnership
Managing Agent: Ardenbrook, Inc., a California corporation, Agent
Landlord's Address: Bayfair Building
c/o Ardenbrook, Inc., Agent
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Tenant: Vista Laser Centers of the Pacific, Inc., a Nevada corporation
Xxxxxx's Address: Bayfair Building, Suite 000
00000 X. 00xx Xxxxxx
Xxx Xxxxxxx, XX 00000
Legal Description of Land: See Exhibit "A"
Premises: Bayfair Building
00000 X. 00xx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Rentable Area of
the Premises: Approximately One Thousand Two Hundred & Twenty Five plus or
minus (1,225 plus or minus) (Rentable) Sq. Ft.
Permitted Uses: General offices purposes only and no other use.
Term: Twelve calendar months (12) with an option to renew for Thirty Six (36)
calendar months, see attached.
Scheduled Term
Commencement Date: June 1, 1996
Annual Base Rent: ($ 12,000.00 /rentable square foot = $9.80
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Monthly Base Rent: ($ 1,000.00 /rentable square foot = $.82
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TABLE OF CONTENTS
ARTICLE PAGE
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1. PREMISES..................................................... 1
1.01 Premises.............................................. 1
1.02 Exhibits.............................................. 1
1.03 Common Areas.......................................... 1
1.04 Landlord's Reserved Rights in Common Areas............ 1
1.05 Rentable Area......................................... 1
2. IMPROVEMENTS................................................. 2
2.01 Plans................................................. 2
2.02 Construction.......................................... 2
2.03 Failure to Complete Construction...................... 2
3. TERM......................................................... 2
3.01 Commencement of Term.................................. 2
4. RENT......................................................... 2
4.01 Base Rent............................................. 2
4.02 Additional Rent....................................... 2
4.03 Escalation............................................ 2
4.04 Late Payment.......................................... 3
4.05 Security Deposit...................................... 3
5. INSURANCE.................................................... 3
5.01 All Risk Coverage..................................... 3
5.02 Public Liability...................................... 3
5.03 Rental Abatement Insurance............................ 3
5.04 Insurance Certificates................................ 3
5.05 Tenant's Failure...................................... 3
5.06 Waiver of Subrogation................................. 4
5.07 Tenant's Property and Fixtures........................ 4
5.08 Indemnification of Landlord........................... 4
5.09 Earthquake and Flood Insurance........................ 4
6. OPERATING EXPENSES........................................... 4
6.01 Operating Expenses.................................... 4
6.02 Impositions........................................... 5
6.03 Services and Utilities................................ 5
6.04 Special Services...................................... 5
7. REPAIRS AND MAINTENANCE...................................... 6
7.01 Tenant Repairs and Maintenance........................ 6
7.02 Inspection of Premises................................ 6
7.03 Liens................................................. 6
8. FIXTURES, PERSONAL PROPERTY AND ALTERATIONS.................. 6
8.01 Fixtures and Personal Property........................ 6
8.02 Alterations........................................... 6
9. USE AND COMPLIANCE WITH LAWS................................. 6
9.01 General Use and Compliance with Laws.................. 6
9.02 Signs................................................. 7
9.03 Parking Access........................................ 7
9.04 Floor Load............................................ 7
9.05 Deliveries............................................ 7
10. DAMAGE AND DESTRUCTION....................................... 7
10.01 Reconstruction........................................ 7
10.02 Rent Abatement........................................ 7
10.03 Excessive Damage or Destruction....................... 7
10.04 Uninsured Casualty.................................... 7
10.05 Waiver................................................ 7
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STANDARD OFFICE LEASE
THIS LEASE ("Lease"), dated as of this 15 day of May, 1996, by and between:
Bayfair Building, a California partnership
("Landlord") and
Vista Laser Centers of the Pacific, a Nevada corporation & X. Xxxxxx Xxxxxxx
M.D., a married man jointly & Severalty & Xxxxx Xxxxx, a married man jointly
and severalty
("Tenant") of space in the Bayfair Building ("Building")
located in the City of San Leandro, County of Alameda, State of California,
commonly known as 00000 X. 00xx Xxxxxx, Xxxxx 000, described more particularly
on the Legal Description, attached hereto as Exhibit A, shall be upon the terms
and conditions contained hereinafter.
1. PREMISES
1.01. Premises. Landlord leases to Tenant, subject to the provisions
of this Lease. Approximately One Thousand Two Hundred & Twenty Five plus or
minus Sq. Ft. (Rentable) (1,225 plus or minus Rentable Sq. Ft.) rentable square
feet of office space in the Building, the usable space of which is shown on the
Building Floor Plan, attached hereto as Exhibit B ("Premises"). By entering
the Premises, Tenant shall be deemed to accept the same in their condition
existing as of the date of such entry and subject to all applicable municipal,
county, state and federal statutes, laws, ordinances, including zoning
ordinances, and regulations governing and relating to the use, occupancy or
possession of the Premises. Tenant acknowledges that the only warranties and
representations Landlord has made in connection with the physical condition of
the Premises or Tenant's use of the same upon which Xxxxxx has relied directly
or indirectly for any purpose are those expressly provided in this Lease.
1.02. Exhibits. The following Exhibits are attached to this Lease
after the signatures and by reference thereto are incorporated herein:
Exhibit A -- Legal Description Exhibit D -- Work Letter
Exhibit B -- Building Floor Plan Exhibit E -- Rules and Regulations
Exhibit C -- Preliminary Plans Exhibit F -- Acknowledgment of
Commencement
1.03. Common Areas. Tenant shall have, as appurtenant to the Premises
and subject to reasonable rules and regulations from time to time made by
Landlord of which Tenant is given notice, the right to the use of the following
in common:
(a) Building Common Area. The common stairways and accessways,
conference rooms, lobbies, entrances, stairs, elevators and any passageways
thereto, and the common pipes, ducts, conduits, wires and appurtenant equipment
serving the Premises;
(b) Land Common Area. The common walkways, sidewalks, parking spaces
and driveways necessary for access to the Building and parking spaces; and
(c) Garage. The common parking garage ("Garage") and storage areas
therein, if any.
1.04. Xxxxxxxx's Reserved Rights in Common Areas. Landlord reserves
the right from time to time:
(a) Building Changes. To install, use, maintain, repair and replace
pipes, ducts, conduits, wires and appurtenant meters and equipment for service
to other parts of the Building above the ceiling surfaces, below the floor
surfaces, within the walls and in the central core areas, and to relocate any
pipes, ducts, conduits, wires and appurtenant meters and equipment included in
the Premises which are so located or located elsewhere outside the Premises;
(b) Boundary Changes. To change the lines of the lot on which the
Building stands ("Lot") and to redesign and restripe the parking facilities
around the Building and make other reasonable changes and grant other rights
thereto, including without limitation, the granting of easements, rights of way
and rights of ingress and egress and similar rights to users of parcels
adjacent to the Lot.
(c) Facility Changes. To alter or relocate any other common areas or
facility.
(d) Garage Parking. Landlord reserves the right to grant exclusive use
to portions of the Garage and storage areas to tenants and to impose parking
charges from time to time for use of the Garage.
1.05 Rentable Area. As used in this Lease, the rentable area of space
within the Building shall be determined applying the Building Owners and
Managers Association ("BOMA") American National Standard (Reprinted May, 1981)
and shall include any balconies, which are for the specific use of Tenant. The
total rentable floor space in the Building shall be Approximately Forty
Thousand, Seven Hundred & Fifty-Three plus or minus (40,753 plus or minus)
square feet.
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adjustment date and the Base Index, and the denominator of which shall be the
Base Index; (c) in no event shall the Base Rent, as adjusted hereunder, be less
than that payable during the lease year immediately preceding such adjustment;
(d) in the event that there is a change in the method of calculation of the
CPI, Landlord shall, at Landlord's option, be permitted to make such adjustment
as may be necessary in order to approximate the result that would have occurred
had there been no change in the method of calculating the CPI; and (e) if it
becomes impossible to make the adjustment provided in (d) above, or if the CPI
fails to exist, then the CPI shall be replaced by such other index selected by
Landlord as may be generally recognized as a successor index, or if none, then
any other reasonable index which Landlord may select.
4.04. Late Payment. If any installment of Rent is not paid promptly on
the first of the month or otherwise when due, Tenant shall pay to Landlord a
late payment charge equal to ten percent (10%) of the amount of such delinquent
payment of Rent in addition to the installment of Rent then owing, regardless
of whether or not a notice of default or notice of termination has been given
by Landlord. This provision shall not relieve Tenant from payment of Rent at
the time and in the manner herein specified.
4.05. Security Deposit. Upon executing this Lease, Tenant shall
deposit the amount of Two Thousand and No/100 Dollars ($2,000.00) as security
deposit ("Security Deposit") with Landlord. The Security Deposit shall secure
Tenant's obligations under this Lease to pay rent and other monetary amounts,
to maintain the Premises and repair damages thereto, to surrender the Premises
to Landlord in clean condition and repair upon termination of this Lease as
required pursuant to Article 17.15 below and to discharge Tenant's other
obligations hereunder. Landlord may use and commingle the Security Deposit with
other funds of Landlord. If Xxxxxx fails to perform Tenant's obligations
hereunder, Landlord may, but without any obligation to do so, apply all or any
portion of the Security Deposit towards fulfillment of Tenant's unperformed
obligations. If Landlord does so apply any portion of the Security Deposit,
Tenant, upon demand by Landlord, shall immediately pay Landlord a sufficient
amount in cash to restore the Security Deposit to the full original amount.
Xxxxxx's failure to forthwith remit to Landlord a sufficient amount in cash to
restore the Security Deposit to the original sum deposited within five (5) days
after receipt of such demand, in the event that Landlord shall expend the same
in order to cure Xxxxxx's default hereunder, shall constitute an Event of
Default. The Security Deposit shall be held by Landlord without liability for
interest on the same. Upon termination of this Lease, if Xxxxxx has then
performed all of Tenant's obligations hereunder, Landlord shall return the
Security Deposit to Tenant. If Landlord sells or otherwise transfers Landlord's
rights or interest under this Lease, Landlord may deliver the Security Deposit
to the transferee, whereupon Landlord shall be released from any further
liability to Tenant with respect to the Security Deposit.
5. INSURANCE
5.01. All Risk Coverage. During the Term, Landlord shall procure and
maintain in full force and effect with respect to the Building, a policy or
policies of all risk insurance (including sprinkler, vandalism and malicious
mischief coverage, and any other endorsements required by the holder of any fee
or leasehold mortgage) in an amount equal to one hundred percent (100%) of the
full insurance replacement value (replacement cost new, including debris
removal, and demolition) thereof. If the annual premiums charged Landlord for
such casualty insurance exceed the standard premium rates because the nature of
Tenant's operations results in increased exposure, then Tenant shall, upon
receipt of appropriate premium invoices, reimburse Landlord for such increased
amount. During the Term, Tenant shall maintain in full force and effect a
similar policy of insurance with respect to all tenant improvements owned by
Xxxxxx (but not with respect to those owned by Landlord) pursuant to the terms
of this Lease, insuring one hundred percent (100%) of the full replacement value
of said tenant improvements.
5.02. Public Liability. Tenant shall, at its own cost and expense,
keep and maintain in full force during the Term, a policy or policies of
comprehensive public liability insurance, written by an insurance company
approved by Landlord in the form customary to the locality, insuring Tenant's
activities with respect to the Premises and/or Building against the loss,
damage or liability for personal injury or death of any person or loss or
damage to property occurring in, upon or about the Premises covering bodily
injury in the amounts of Three Million Dollars ($3,000,000) per person and
Three Million Dollars ($3,000,000) per occurrence and covering property damage
in the amount of One Million Dollars ($1,000,000); provided, however, that if
at any time during the Term, Tenant shall have in full force and effect a
blanket policy of public liability insurance with the same coverage for the
Premises as described above, as well as coverage of other premises and
properties of Tenant, or in which Tenant has some interest, such blanket
insurance shall satisfy the requirement hereof.
5.03. Rental Abatement Insurance. Landlord shall keep and maintain in
full force and effect during the Term, rental abatement insurance against
abatement or loss of Rent in case of fire or other casualty, in an amount at
least equal to the amount of the Rent payable by Xxxxxx during one year next
ensuing, as reasonably determined by Landlord.
5.04. Insurance Certificates. Tenant shall furnish to Landlord. upon
the date of commencement of this Lease and thereafter within thirty (30) days
prior to the expiration of each such policy, a certificate of insurance issued
by the insurance carrier of each policy of insurance carried by Tenant
pursuant hereto. Said certificates shall expressly provide that such policies
shall not be cancellable or subject to reduction of coverage or otherwise be
subject to modification except after thirty (30) days' prior written notice to
the parties named as insureds in this Article 5.04. Landlord, its successors
and assigns, and any nominee of Landlord holding any interest in the Premises,
including without limitation, any ground lessor and the holder of any fee or
leasehold mortgage, shall be named as insureds under each such policy of
insurance maintained by Tenant pursuant to this Lease.
5.05. Tenant's Failure. If Tenant fails to maintain any insurance
required in this Lease, Tenant shall be liable for any loss or cost resulting
from said failure. This Article 5.05 shall not be deemed to be a waiver of any
of Landlord's rights and remedies under any other section of this Lease.
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year. If Tenant has overpaid the amount of Additional Rent owing pursuant
to this provision, Landlord shall credit Tenant the amount of such
overpayment in determining Tenant's estimated payments for the following
lease year; provided, that in the case of an overpayment for the final
lease year of the Term, Landlord shall refund such overpayment to Tenant
within thirty (30) days after the end of the Landlord's accounting year. If
Tenant has underpaid the amount of Additional Rent owing pursuant to this
provision, Tenant shall pay the amount of such underpayment to Landlord, as
Additional Rent, within thirty (30) days after the end of Landlord's
accounting year; and
(e) Adjustment. Notwithstanding any provision herein to the
contrary, in the event the Building is not fully occupied during any year
of the Term, an adjustment shall be made in computing Operating Expenses
for such year so that the same shall be computed for such year as though
the Building had been fully occupied during such year.
6.02. Impositions. All transit charges, housing fund assessments, real
estate taxes and all other taxes relating to the Premises and/or the Building,
all other taxes which may be levied in lieu of real estate taxes, all
assessments, assessment bonds, levies, fees and other governmental charges
(including, but not limited to, charges for traffic facilities improvements,
water service studies and improvements, and fire service studies and
improvements) or amounts necessary to be expended because of governmental
orders, whether general or special, ordinary or extraordinary, unforeseen as
well as foreseen, of any kind and nature for public improvements, services,
benefits, or any other purpose which are assessed, levied, confirmed, imposed or
become a lien upon the Premises or Building or become payable during the Term
shall collectively be referred to as "Impositions."
(a) Installment Election. In the case of any Impositions which may
be evidenced by improvement or other bonds or which may be paid in annual
or other periodic installments, Landlord shall elect to cause such bonds to
be issued or cause such assessment to be paid in installments over the
maximum period permitted by law.
(b) Limitation. Nothing contained in this Lease shall require
Tenant to pay any franchise, estate, inheritance or succession transfer tax
of Landlord, or any income, profits or revenue tax or charge, upon the net
income of Landlord from all sources; provided, however, that if at any time
during the Term under the laws of the United States Government or the State
of California, or any political subdivision thereof, a tax or excise on
rent, or any other tax however described, is levied or assessed by any such
political body against Landlord on account of Rent, or a portion thereof,
Tenant shall pay one hundred percent (100%) of any said tax or excise as
Additional Rent.
(c) Personal Property Taxes. Tenant shall pay or cause to be paid,
prior to delinquency, any and all taxes and assessments levied upon all
trade fixtures, inventories and other personal property placed in and upon
the Premises by Tenant.
6.03. Services and Utilities. So long as Tenant is not in default under
this Lease, Landlord shall provide: (i) to the Premises during Business Hours,
as defined in the Rules and Regulations, electricity, gas, water, lighting,
janitorial services, elevator service, heating, ventilating and air conditioning
and other Building services required in Landlord's reasonable judgment for the
comfortable use and occupancy of the Premises; and, (ii) to the common areas
during Business Hours, as defined in the Rules and Regulations, utilities and
maintenance as required in Landlord's reasonable judgment for the comfortable
use and occupancy of the Premises. Landlord shall not be liable for, and Tenant
shall not be entitled to, any reduction or abatement of Rent on account of any
failure on the part of Landlord to deliver the services and utilities provided
in this Lease unless the same results from the wilful or intentional misconduct
of Landlord, nor shall Landlord be liable under any circumstances for a loss of
or injury to property, however occurring, incidental to any failure to furnish
any utilities or services.
6.04. Special Services.
(a) Additional Services. In the event Landlord provides utilities,
elevator, heating, air conditioning and/or cleaning services to Tenant
beyond the standard services related to the operation and management of a
first class office building or at times other than during the Business
Hours, as defined in the Rules and Regulations, Tenant shall pay Landlord's
reasonable charge for such special services as Additional Rent. Any
cleaning of lunchrooms, cafeterias, conference rooms, etc., shall be on a
special services basis (except with respect to the removal of trash from
trash receptacles or cleaning incidental to normal cleaning).
(b) Utility Consumption. If Tenant is likely to or does not consume
quantities of electricity, water or gas in excess of the amounts
customarily consumed by users of office space, Landlord shall have the
right, at Tenant's sole cost and expense, to install separate metering for
such utilities or to separately charge Tenant for any quantity of such
utilities consumed by Tenant beyond the amounts customarily consumed by
office users. Any such charges made by Landlord to Tenant shall be
reasonably determined by Landlord and shall be promptly paid by Tenant to
Landlord as Additional Rent. Landlord may, at Xxxxxxxx's sole option, elect
to rate the quantity of utilities consumed by Tenant at the Premises. Such
consumption shall be determined by one of the following methods: (i) a
rating by an appropriately licensed engineer with costs to be computed on
an average daily basis; (ii) metering by a licensed utility company
responsible for service to the project; or (iii) a rating by an
appropriately licensed engineer and monitored by Landlord's central project
computer. In each such case, the costs for administering such methods shall
be borne by Tenant.
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9.02. Signs. Tenant shall not install any sign on the Premises or
Building; provided, however, that Landlord shall install for Tenant an
identifying sign at the main entrance to the Premises in conformance with the
Building Standard Improvements. Any sign placed by Landlord for the benefit of
Tenant on the Premises or Building shall be installed at Tenant's sole cost
and expense, and shall contain only Tenant's name, or the name of any affiliate
of Tenant actually occupying the Premises, and no advertising matter. Tenant
shall remove any such sign upon termination of this Lease and shall return the
Premises to their condition prior to the placement or erection of said sign.
9.03. Parking Access. In addition to the general obligation of Tenant
to comply with laws and without limitation thereof, Landlord shall not be
liable to Tenant nor shall this Lease be affected if any parking privileges
appurtenant to the Premises are impaired by reason of any moratorium,
initiative, referendum, statute, regulation, or other governmental decree or
action which could in any manner prevent or limit the parking rights of Tenant
hereunder. Any governmental charges or surcharges or other monetary obligations
imposed relative to parking rights with respect to the Premises, Building and
Lot shall be considered as Impositions and shall be payable by Tenant under the
provisions of Article 6 hereinabove.
9.04. Floor Load. Tenant shall not place a load upon any floor of the
Premises which exceeds the load per square foot which such floor is designed to
carry and which is than allowed by law.
9.05. Deliveries. All deliveries to and from the Premises shall be
made using the freight elevator designated by Landlord during the time periods
specified by Landlord and so as to cause the minimum amount of interference
with the business of other tenants.
10. DAMAGE AND DESTRUCTION
10.01. Reconstruction. If the premises are damaged or destroyed
during the Term, Landlord shall, to the extent that insurance proceeds are
available therefor and are not applied by any lender against payment of an
existing loan on the Building or Lot, except as hereinafter provided,
diligently repair or rebuild them to substantially the condition in which they
existed immediately prior to such damage or destruction: provided, however,
that any damage which is estimated in good faith by Landlord to be under One
Thousand Dollars ($1,000) shall be repaired by Tenant, and Landlord shall
reimburse Tenant upon demand for expenses incurred in such repair work.
10.02. Rent Abatement. Rent due and payable hereunder shall be abated
proportionately, but only to the extent of any proceeds received by Landlord
from rental abatement insurance described in Article 5.03 hereinabove, during
any period in which, by reason of any such damage or destruction, Tenant
reasonably determines that there is substantial interference with the operation
of Tenant's business in the Premises, having regard to the extent to which
Tenant may be required to discontinue its business in the Premises. Such
abatement shall continue for the period commencing with such damage or
destruction and ending with a substantial completion by Landlord of the work of
repair or reconstruction which Landlord is obligated or undertakes to do. If it
be determined that continuation of business is not practical pending
reconstruction, Base Rent due and payable hereunder shall xxxxx to the extent
of proceeds from rental abatement insurance until reconstruction is
substantially completed or until business is totally or partially resumed,
whichever is the earlier.
10.03. Excessive Damage or Destruction. If the Building is damaged or
destroyed to the extent that Landlord determines that it cannot, with reasonable
diligence, be fully repaired or restored by Landlord within one hundred eighty
(180) days after the date of the damage or destruction, Landlord may terminate
this Lease. Notwithstanding the fact that the Premises have been damaged or
destroyed, Landlord shall determine whether the Building can be fully repaired
or restored within the one hundred eighty (180) day period, and Landlord's
determination shall be binding upon Tenant. Landlord shall notify Tenant of its
determination, in writing, within forty-five (45) days after the date of the
damage or destruction. If Landlord determines that the Building can be fully
repaired or restored within the one hundred eighty (180) day period, or if it
is determined that such repair or restoration cannot be made within said period
but Landlord does not elect to terminate within forty-five (45) days from the
date of said determination, this Lease shall remain in full force and effect
and Landlord shall diligently repair and restore the damage as soon as
reasonably possible.
10.04. Uninsured Casualty. Notwithstanding anything contained herein
to the contrary, in the event of damage to or destruction of all or any portion
of the Building which is not fully covered by the insurance proceeds received
by Landlord under the insurance policies required under Article 5.01
hereinabove, Landlord may terminate this Lease by written notice to Tenant,
given within forty-five (45) days after the date of notice to Landlord that
said damage or destruction is not so covered. If Landlord does not elect to
terminate this Lease, the Lease shall remain in full force and effect and the
Building shall be repaired and rebuilt in accordance with the provisions for
repair set forth in Article 10.01 hereinabove.
10.05. Waiver. With respect to any destruction which Landlord is
obligated to repair or may elect to repair under the terms of this Article 10,
Tenant hereby waives all rights to terminate this Lease pursuant to rights
otherwise presently or hereafter accorded by law to tenants, except as
expressly otherwise provided herein.
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(h) Attachment. Attachment, execution or other judicial
seizure of substantially all of Tenant's assets or this leasehold.
12.02. Landlord's Remedies.
(a) Abandonment. If Tenant vacates or abandons the Premises,
this Lease shall continue in effect. Landlord shall not be deemed to
have terminated this Lease other than by written notice of termination
from Landlord, and Landlord shall have all of the remedies of a landlord
provided by Article 1951.4 of the Civil Code of the State of California.
At any time subsequent to vacation or abandonment of the Premises by
Xxxxxx, Landlord may give notice of termination and shall thereafter
have all of the rights hereinafter set forth.
(b) Termination. Following the occurrence of any Event of
Default, Landlord shall have the right, so long as the default
continues, to terminate this Lease by written notice to Tenant setting
forth: (i) the default; (ii) the requirements to cure it; and (iii) a
demand for possession, which shall be effective three (3) days after it
is given or upon expiration of the times specified in Article 12.01
hereinabove, whichever is later.
(c) Possession. Following termination under subsection (b),
without prejudice to any other remedies Landlord may have by reason of
Tenant's default or of such termination, Landlord may then or at anytime
thereafter, (i) peaceably re-enter the Premises, or any part thereof,
upon voluntary surrender by Tenant or expel or remove Tenant therefrom
and any other persons occupying them, using such legal proceedings as
are then available; (ii) repossess and enjoy the Premises, or relet the
Premises or any part thereof for such term or terms (which may be for a
term extending beyond the Term) at such rental or rentals and upon such
other terms and conditions as Landlord in its sole discretion shall
determine, with the right to make reasonable alterations and repairs to
the Premises; and (iii) remove all personal property therefrom.
(d) Recovery. Following termination under subsection (b),
Landlord shall have all the rights and remedies of a landlord provided
by Article 1951.2 of the Civil Code of the State of California. The
amount of damages which Landlord may recover following termination under
subsection (b) shall include: (i) the worth at the time of the award of
the unpaid rent and other amounts which had been earned at the time of
termination; (ii) the worth at the time of the 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 rental loss that
the Tenant proves could have been reasonably avoided; (iii) the worth at
the time of the award of the amount by which the unpaid Rent for the
balance of the Term after the time of award exceeds the amount of rental
loss Tenant proves could be reasonably avoided; and (iv) any other
amount necessary to compensate Landlord for all detriment proximately
caused by Xxxxxx's failure to perform its obligations under this Lease.
The "worth at the time of the award" of the amount referred to in (iii)
above 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%).
(e) Additional Remedies. In addition to the foregoing remedies,
Landlord shall, so long as this Lease is not terminated, have the right
to remedy any default of Tenant, to maintain or improve the Premises
without terminating this Lease, to incur expenses on behalf of Tenant in
seeking a new subtenant, or to cause a receiver to be appointed to
administer the Premises and new or existing subleases, and to add to the
Rent payable hereunder all of Landlord's reasonable costs in so doing,
with interest at the lower of the prime rate of interest at the time of
said default charged by Xxxxx Fargo Bank N.A. plus two percent (2%) or
the maximum lawful rate.
(f) Other. If Tenant causes or threatens to cause a breach of
any of the covenants, agreements, terms or conditions contained in this
Lease, Landlord shall be entitled to retain all sums held by Landlord by
any trustee or in any account provided for herein, to enjoin such breach
or threatened breach, and to invoke any right and remedy allowed at law
or in equity or by statute or otherwise as though re-entry, summary
proceedings and other remedies were not provided for in this Lease.
(g) Cumulative. Each right and remedy of Landlord provided for
in this Lease shall be cumulative and shall be in addition to every
other right or remedy provided for in this Lease or now or hereafter
existing at law or in equity or by statute or otherwise. The exercise or
beginning of the exercise by Landlord of any one or more of the rights
or remedies provided for in this Lease, or now or hereafter existing at
law or in equity or by statute or otherwise, shall not preclude the
simultaneous or later exercise by Landlord of any or all other rights or
remedies provided for in this Lease or now or hereafter existing at law
or in equity or by statute or otherwise.
(h) No Waiver. No failure by Landlord to insist upon the strict
performance of any term hereof or to exercise any right or remedy
consequent upon a breach thereof, and no acceptance of full or partial
payment of Rent during the continuance of any such breach shall
constitute a waiver of any such breach or of any such term. Efforts by
Landlord to mitigate the damages caused by Xxxxxx's breach of this Lease
shall not be construed to be a waiver of Landlord's right to recover
damages under this Article 12. Nothing in this Article 12 affects the
right of Landlord to indemnification by Xxxxxx in accordance with
Article 5.08 hereinabove for liability arising prior to the termination
of this Lease for personal injuries or property damage.
13. ASSIGNMENT AND SUBLETTING
13.01. Assignment and Subletting: Prohibition. Tenant shall not
assign, mortgage, pledge or otherwise transfer, this Lease, in whole or in
part, nor sublet or permit occupancy by any party other than Tenant of all or
any part of the Premises, without the prior written consent of Landlord in each
instance, which shall not be unreasonably withheld. Tenant shall submit each
proposed
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15. NOTICES
15.01. Notices. All notices required to be given hereunder shall be in
writing (except for notice required pursuant to Article 12.01(b) and mailed
postage prepaid by certified or registered mail, return receipt requested, or
by personal delivery, to the appropriate address indicated below or at such
other place or places as either Landlord or Tenant may, from time to time,
respectively, designate in a written notice given to the other. Notices shall
be deemed sufficiently served four (4) days after the date of mailing thereof.
To Landlord: Bayfair Building
c/o Ardenbrook, Inc., Agent
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
To Tenant: X. Xxxxxx Xxxxxxx, M.D.
Xxxxx Xxxxx
Vista Laser Centers of the Pacific, Inc.
Bayfair Building
00000 X. 00xx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
16. SUCCESSORS BOUND
16.01. Successors Bound. This Lease and each of its covenants and
conditions shall be binding upon and shall inure to the benefit of the parties
hereto and their respective heirs, successors and legal representatives and
their respective assigns, subject to the provisions hereof. Whenever in this
Lease a reference is made to the Landlord, such reference shall be deemed to
refer to the person in whom the interest of the Landlord shall be vested, and
Landlord shall have no obligation hereunder as to any claim arising after the
transfer of its interest in the Premises. Any successor or assignee of the
Tenant who accepts an assignment or the benefit of this Lease and enters into
possession or enjoyment hereunder shall thereby assume and agree to perform and
be bound by the covenants and conditions thereof. Nothing herein contained
shall be deemed in any manner to give a right of assignment to Tenant without
the written consent of Landlord.
17. MISCELLANEOUS
17.01. Waiver. No waiver of any default or breach of any covenant by
either party hereunder shall be implied from any omission by either party to
take action on account of such default if such default persists or is repeated,
and no express waiver shall affect any default other than the default specified
in the waiver, and then said waiver shall be operative only for the time and to
the extent therein stated. Waivers of any covenant, term or condition contained
herein by either party shall not be construed as a waiver of any subsequent
breach of the same covenant, term or condition. The consent or approval by
either party to or of any act by either party requiring further consent or
approval shall not be deemed to waive or render unnecessary their consent or
approval to or of any subsequent similar acts.
17.02. Easements. Landlord reserves the right to (i) alter the
boundaries of the Lot and (ii) grant easements on the Lot and dedicate for
public use portions thereof without Tenant's consent; provided, however, that
no such grant or dedication shall materially interfere with Xxxxxx's use of the
Premises. From time to time, and upon Xxxxxxxx's demand, Tenant shall execute,
acknowledge and deliver to Landlord, in accordance with Landlord's
instructions, any and all documents, instruments, maps or plats necessary to
effectuate Xxxxxx's covenants hereunder.
17.03. Relocation. At any time after Xxxxxx's execution of this
Lease, Landlord shall have the right, upon providing Tenant thirty (30) days'
notice in writing, to provide Tenant with reasonably similar space elsewhere in
the Building of approximately the same size as the Premises and to move Tenant
to said space. In the event that Landlord shall exercise such right subsequent
to the actual occupancy of the Premises by Tenant. Landlord shall arrange for
moving Tenant and shall pay the costs of moving Tenant to such new space and
all other reasonable expenses related to such relocation. In the event Landlord
moves Tenant to such new space, then this Lease and each and all of the terms
and covenants and conditions hereof shall remain in full force and effect and
thereupon be deemed applicable to such new space except that a revised floor
plan shall become part of this Lease and shall reflect the location of the new
space. Should Tenant refuse to permit Xxxxxxxx to move Tenant to such new space
at the end of said thirty (30) day period, Landlord shall have the right to
terminate this Lease by notice given to Tenant in writing within ten (10) days
following the end of said thirty (30) day period, which termination shall be
effective sixty (60) days after the date of the original notice of relocation
by Landlord.
17.04. No Light, Air or View Easement. Any diminution or shutting off
of light, air or view by any structure which may be erected on lands adjacent
to or in the vicinity of the Building shall in no way affect this Lease or
impose any liability on Landlord.
11
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fee in connection with this Lease. Xxxxxx agrees to indemnify Landlord and hold
Landlord harmless from and against any and all claims, demands, losses,
liabilities, lawsuits, judgments, costs and expenses (including without
limitation, attorneys' fees and costs) with respect to any leasing commission
or equivalent compensation alleged to be owning on account of Xxxxxx's dealings
with any real estate broker or agent other than Broker.
17.19. Xxxxxxxx's Right to Perform. Upon Xxxxxx's failure to perform
any obligation of Tenant hereunder, including without limitation, payment of
Tenant's insurance premiums, charges of contractors who have supplied materials
or labor to the Premises, etc., Landlord shall have the right to perform such
obligation of Tenant on behalf of Tenant and/or to make payment on behalf of
Tenant to such parties. Tenant shall reimburse Landlord the reasonable cost of
Landlord's performing such obligation on Xxxxxx's behalf, including
reimbursement of any amounts that may be expended by Landlord, plus interest at
the rate of three percent (3%) over the prime rate as announced, from time to
time, by Xxxxx Fargo Bank, N.A. per annum, as Additional Rent.
17.20. Mortgage Protection. No act or failure to act on the part of
Landlord which would entitle Tenant under the terms of this Lease, or by law,
to be relieved of Tenant's obligations hereunder or to terminate this Lease,
shall result in a release of such obligations or a termination of this Lease
unless (a) Tenant has given notice by registered or certified mail to any
beneficiary of a deed of trust or mortgage covering the Premises whose address
shall have been furnished to Tenant, and (b) Tenant offers such beneficiary or
mortgagee a reasonable opportunity to cure the default, including time to
obtain possession of the Premises by power of sale or of judicial foreclosure,
if such should prove necessary to effect a cure.
17.21. Nonliability. Landlord shall not be in default hereunder or be
liable for any damages directly or indirectly resulting from, nor shall the
rental herein reserved be abated by reason of (i) the interruption of use of
the Premises as a result of the installation of any equipment in connection
with the Premises or building or (ii) any failure to furnish or delay in
furnishing any services required to be provided by Landlord when such failure
or delay is caused by accident or any condition beyond the reasonable control
of Landlord or by the making of necessary repairs or improvements to the
Premises or to the Building, or the limitation, curtailment, rationing or
restriction on use of water or electricity, gas or any other form of energy or
any other service or utility whatsoever serving the Premises or the Building.
Landlord shall use reasonable efforts to remedy any interruption in the
furnishing of such services.
17.22. Limitation on Liability. The obligations of Landlord under this
Lease do not constitute personal obligations of the individual partners,
directors, officers or shareholders of Landlord, and Tenant shall not seek
recourse against the individual partners, directors, officers or shareholders
of Landlord or any of their personal assets for satisfaction of any liability
in respect to this Lease.
17.23. Modification for Lender. If, in connection with obtaining
construction, interim or permanent financing for the Building, the lender shall
request reasonable modifications in this Lease as a condition to such
financing, Tenant will not unreasonably withhold, delay or defer its consent
thereto, provided that such modifications do not increase the obligations of
Tenant hereunder or materially adversely affect the leasehold interest hereby
created or Xxxxxx's rights hereunder.
17.24. Recording. Neither Landlord nor Tenant shall record this Lease
nor a short form memorandum thereof without the consent of the other.
17.25. Entire Agreement. This Lease sets forth all covenants,
promises, agreements, conditions and understandings between Landlord and Tenant
concerning the Premises, Building and Lot, and there are no covenants,
promises, agreements, conditions or understandings, either oral or written,
between Landlord and Tenant other than as are herein set forth. Except as
herein otherwise provided, no subsequent alteration, amendment, change or
addition to this Lease shall be binding upon Landlord or Tenant unless reduced
to writing and signed by Landlord and Tenant.
17.26. Special Provisions. Special provisions of the Lease numbered
18.0 through 25.01 are attached hereto and made a part hereof. If none, so
state in the following space _________________________________________.
IN WITNESS WHEREOF, the parties have executed this Lease as of the date
first above-written.
"Landlord" Bayfair Building, "Tenant" Vista Laser Centers of
a California partnership the Pacific Inc., a
Nevada corporation & X.
Xxxxxx Xxxxxxx, M.D., a
married man jointly &
By /s/ severalty & Xxxxx Xxxxx,
-------------------------------- a married man jointly &
severalty. As their sole
Its Owner/Mgr and separate property.
----------------------------
By By /s/ X. Xxxxxx Xxxxxxx
-------------------------------- ---------------------------------
Its Its Chairman
---------------------------- -----------------------------
(SEAL) (SEAL)
By /s/ Xxxxx Xxxxx
---------------------------------
Its President
-----------------------------
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LEASE RIDER
This rider is attached to and forms a part of that certain Lease dated as of
the 15th day of May, 1996, by and between Brookmat, Corp., a California
corporation, as Landlord; and Vista Laser Centers of the Pacific, Inc., a Nevada
corporation, and X. Xxxxxx Xxxxxxx, M.D., a married man jointly and severalty,
and Xxxxx Xxxxx, a married man jointly and severalty, as Xxxxxx; and
constitutes additional covenants and agreements thereto as set forth in the
Lease, with the covenants and agreements contained herein to prevail in case of
any conflict between the covenants and agreements that are contained herein and
those in the Lease.
18. HAZARDOUS/TOXIC MATERIALS
18.01. Restrictions on Use. The use, storage or disposal of toxic or
hazardous substance on the Premises is prohibited without the express consent
of Landlord. The Landlord may, in its sole discretion and upon application by
the Tenant, consent to the use of toxic or hazardous substances on the
Premises. In the event that the Landlord consents to the use of the toxic or
hazardous substances on the Premises, the Landlord may require an additional
security deposit in the form of cash, cashier's check or a letter of credit.
Tenant shall indemnify and hold Landlord harmless for any claims caused by its
bringing any hazardous materials on the Premises.
18.02. Compliance With Law. Tenant shall comply with all laws,
regulations and orders of all governmental authorities at the federal, state
and local levels, including, but not limited to, all environmental laws
regarding the use, monitoring, storage, or disposal of toxic hazardous
substances. Such compliance shall include, but not to be limited to,
compliance with the Comprehensive Environmental Response Compensation and
Liability Act of 1980, Hazardous Waste Control Act, the California Safe
Drinking Water and Toxic Enforcement Act, the California Superfund Act, Water
Quality Control Act and all city and country laws relating to toxic or
hazardous substance use, monitoring, storage and disposal.
18.03. Representations and Warranties. Tenant represents and warrants
to the Landlord that it will not use, store or dispose of any toxic or
hazardous substances on the Premises without first obtaining Landlord's express
consent. Prior to any renewal or extension of the Lease Agreement, Tenant
shall reaffirm this representation and warranty. See Paragraph 18.01.
18.04. Right of Entry. Landlord and Landlord's agents reserve the
right to enter the premises at all reasonable times to test the Premises, the
soil and the ground water for contamination if they have reasonable cause to
believe that contamination may be present. Xxxxxx agrees to pay for such
testing if the results establish that there is a contamination and Landlord has
reasonable cause to believe that such contamination is due to the Tenant's
operations.
18.05. Permits. Tenant shall maintain current permits for all of its
operations including such operations as require the use, storage or disposal of
toxic or hazardous substances. Copies of such permits must be delivered to the
Landlord within five (5) days of receipt.
18.06. Indemnification. Tenant hereby agrees to indemnify, hold
harmless and defend Landlord for any liability and claim for all damages, costs
and expenses, including attorney's fees and costs on account of, arising out or
alleged to have arisen out of directly or indirectly, the use, storage and
disposal of toxic or hazardous substances by the Tenant or the Tenant's agents,
employees or invitees. The foregoing obligation shall survive the termination
of this Lease.
18.07. Operating Expenses. If by any reason of an act of Tenant,
Landlord is obligated to incur the cost of cleanup of any release caused by
Tenant, Tenant's operations or Tenant's agents, employees or invitees, Tenant
shall pay, as additional rent, any excess caused thereby, with the amount
thereof to be payable upon the next succeeding rent payment date.
18.08. Maintenance. Xxxxxx agrees and covenants to maintain the
Premises free of any toxic or hazardous substance. Tenant shall, at Xxxxxx's
sole cost and expense comply with any and all requirements pertaining to the
monitoring and cleanup of any releases that may occur as the result of Tenant,
Xxxxxx's agent, employee or invitee's acts. Nothing in the forgoing shall be
construed to prevent Landlord for undertaking the cleanup of any toxic or
hazardous
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substances in the event that Tenant fails to do so after ten (10) days notice
by Landlord.
18.09. Notification. Xxxxxx agrees that it is a requirement of this
Lease that Tenant notify the Landlord of any release on or near the Premises
with twenty-four (24) hours whether or not such release is in quantities that
would otherwise be reportable to a public agency. California Health and Safety
Code Section 25359.7 requires a Tenant of nonresidential property who knows or
has reasonable cause to believe that toxic or hazardous substances have been
released on or beneath real property to notify the Landlord or risk losing its
lease. A knowing or willful failure to disclose such release carries civil
penalties of $5,000.00.
18.10. Defaults. (i) Any of the following events shall constitute an
event of default under this Lease:
(a) Tenant or Tenant's agent, employee or invitee's release of toxic
or hazardous substances on the Premises.
(b) Xxxxxx's failure to notify Landlord promptly of the release of
toxic or hazardous substances on the Premises.
(c) Tenant's failure to maintain proper use, monitoring and storage
procedures for toxic and hazardous substances on the Premises.
(d) Tenant's failure to apply for and maintain proper permits for the
use and storage of toxic or hazardous substances on the Premises.
(e) Tenant's failure to properly and lawfully dispose of toxic or
hazardous substances for the Premises.
(ii) In the event of default, the Landlord shall have the right to
either (i) terminate the Lease and collect damages according to proof,
including but not limited to the cost of the cleanup of any releases onto the
Premises, the soil or ground water, or through improper disposal (ii) re-enter
the Premises immediately and remove all persons, property, or toxic or
hazardous substance located therein and store such property in a public
warehouse or other appropriate storage facility of and for the account of
Tenant and require the cleanup and proper disposal of any contamination. After
any such entry, Landlord shall have the option to terminate this Lease or,
without terminating this Lease, undertaking such cleanup of contamination as
Landlord deems reasonable and necessary. Tenant shall pay the Landlord as soon
as determined the reasonable costs and expenses incurred by Landlord in such
cleanup of toxic or hazardous substances contamination.
18.11. Limitation of Liability. If Landlord shall be held liable to
Tenant for any act or failure to act arising out of the relationship
established in this Lease, Landlord's liability to Tenant shall be limited to
Landlord's interest in the Premises.
18.12. Termination and Expiration. Upon termination or expiration of
the Lease, Landlord reserves the right to require Tenant to remove any and all
of its improvements, fixtures or machinery from the Premises. In the event any
equipment or improvements to the Premises could be contaminated by toxic or
hazardous substances, all such removal must be carried out in accordance with
all applicable laws. In the event such removal requires more that two (2) days
after the termination of this Lease, Tenant shall continue to pay Landlord on a
prorated basis the rent established pursuant to this Lease.
18.13. Representations by Xxxxxx. Broker has no expertise with
respect to the nature or extent of toxic wastes or hazardous materials as
defined by federal, state or local law, or other undesirable substances which
may be present in the Premises. Broker and its agents have not made and will
not make any representations regarding same. It is agreed that it is the
responsibility of Landlord and Tenant to deal with this subject and to retain
experts to assist them in determining the allocation of responsibility for
remediation, as well as provisions pertaining thereto to be included in the
Lease.
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19. NOTICE PURSUANT TO STATE OF CALIFORNIA SAFE WATER AND TOXIC ENFORCEMENT
ACT OF 1986.
19.01. Disclosure. At the time the Property was constructed, asbestos
was commonly used in the construction industry throughout the United States for
purposes of insulation, fireproofing, floor tiles and acoustical coatings.
Accordingly, asbestos maybe present in one or more building products at the
Property. Under the State of California Safe Drinking Water and Toxic
Enforcement Act of 1986 (Proposition 65), asbestos is listed as one of the many
chemicals known to cause cancer.
19.02. Notice. (i) Pursuant to the State of California Safe Drinking
Water and Toxic Enforcement Act of 1986, if a product individual but not
limited to asbestos, contains certain chemical substances which the State of
California believes can cause cancer, birth defects, or other reproductive
defects, an appropriate warning must be given to individuals exposed to these
products - even if such chemical substances are present at extremely low levels.
(ii) In compliance with this Act, Landlord and Wm.
Xxxxxxx & Co. issues this notice:
WARNING
DETECTABLE AMOUNTS OF CHEMICAL KNOWN TO THE STATE OF CALIFORNIA TO
CAUSE CANCER, BIRTH DEFECTS OR OTHER REPRODUCTIVE HARM MAY BE FOUND
IN AND AROUND THIS FACILITY. (HEALTH AND SAFETY CODE SECTION 25249.6)
20. INSPECTION DISCLOSURE AND RELEASE
20.01. Notice. Under California Law, a Landlord, and/or its agent,
is required to disclose to any proposed tenant any information to the proposed
tenant which could adversely impact that tenant's proposed use of a Premises.
20.02. Disclosure. Preceding execution of this Lease, Landlord,
and/or it's agent, has advised Xxxxxx to hire competent independent consults to:
(i) Physically inspect the leasehold to determine whether the
Premises and its physical characteristics are suitable for
the Tenant's proposed use; and
(ii) Investigate the general geographic and marketing area in
which the Premises is located to determine the feasibility
for the intended use of the business.
20.03. Tenant Acknowledgement. By executing this Lease, Xxxxxx
acknowledges the Tenant has had the opportunity to personally, and with
Xxxxxx's independent consultants, to reasonably and diligently inspect the
Premises and the geographic and marketing area in which the Premises is located
for suitability with the Tenant's intended use. Furthermore, Tenant forever
releases Landlord and its agents, as well as their directors, officers,
employees, principals and their agents, from any liability for any breach,
known or unknown, of the duty to disclose any information of the general
character referred to above, accruing through the execution date of this Lease.
20.04. General Release. With respect to such release, Tenant
expressly waives the benefits of Section 1542 of the California Civil Code:
"1542. A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at the
time of executing the release, which if known by him must have
materially affected his settlement with the Debtor."
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21. ARBITRATION
21.01. ARBITRATION OF DISPUTES. (i) Any dispute, controversy or claim
arising out of or relating to the Lease and/or any amendment(s) thereto, or the
breach, performance or non-performance thereunder, including without limitation
any claim related to bodily injury, property damage or death, but excluding
specifically and only non-payment by Tenant of Rent, shall be settled by binding
arbitration in Fremont, California, in accordance with the rules of the
American Arbitration Association then existing, and judgement on the arbitration
award may be entered in any court having jurisdiction over the subject matter
of the controversy. This agreement to arbitrate does no waive or modify the
hold harmless provision(s), liability, or other release(s) contained in the
Lease and/or any amendment(s) thereto.
(ii) NOTICE. BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE
ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE ARBITRATION OF
DISPUTES PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY
CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO
HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY INITIALING IN
THE SPACE BELOW YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND
APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE ARBITRATION
OF DISPUTES PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER
AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE
AUTHORITY OF CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS
ARBITRATION PROVISION IS VOLUNTARY.
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES
ARISING OUT OF THE MATTERS INCLUDED IN THE ARBITRATION OF DISPUTES
PROVISION TO NEUTRAL ARBITRATION.
Agreed To: /s/
---------------------
Initial
22. TELECOMMUNICATIONS
22.01. Limitation of Responsibility. Tenant acknowledges and agrees
that all telephone and telecommunications services desired by Tenant shall be
ordered and utilized at the sole expense of Tenant. Unless Landlord otherwise
requests or consents in writing, all of Tenant's telecommunications equipment
shall be and remain solely in the Tenant's Premises and, in accordance with
rules and regulations adopted by Landlord from time to time, the telephone
closet(s) on the floor(s) on which the Tenant's Premises is located. Unless
otherwise specifically agreed in writing, Landlord shall have no responsibility
for the maintenance of Tenant's telecommunications equipment, including wiring
not for any wiring or other infrastructure to which tenant's telecommunications
equipment may be connected. Tenant agrees that to the extent any such service
is interrupted, curtailed or discontinued, Landlord shall have no obligation or
liability with respect thereto and it shall be the sole obligation of Tenant at
its expense to obtain substitute service.
22.02. Necessary Service Interruptions. Landlord shall have the
right, upon reasonable prior notice to Tenant, to interrupt or turn off
telecommunications facilities in the event of emergency or as necessary in
connection with repairs to the Building or installation of telecommunications
equipment for other Tenants of the Building.
22.03. Removal of Equipment, Wiring and Other Facilities. Any and all
telecommunications equipment installed in the Tenant's Premises or elsewhere in
the Building by or on behalf of Tenant including, but limited to, wiring, or
other facilities for telecommunications transmittal, shall be removed prior to
the expiration or earlier termination of the Lease Term, by Tenant at its sole
cost or, at Landlord's election, by Landlord at Tenant's sole cost, with the
cost thereof to be paid as Additional Rent. Landlord shall have the right,
however, upon written notice to Tenant given no later than thirty (30) days
prior to the expiration or earlier termination of the Lease Term, to require
Tenant to abandon and leave in place, without additional payment to Tenant or
credit against Rent, any and all telecommunications wiring and related
infrastructure, or selected components thereof, whether located in the Tenant's
Premises or elsewhere in the Building.
22.04. New Provider Installations. In the event that Xxxxxx wishes at
any time to utilize the services of a
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telephone or telecommunications provider whose equipment is not then servicing
the Building, no such provider shall be permitted to install its lines or other
equipment within the Building without first securing the prior written approval
of the Landlord. Landlord's approval shall not be deemed any kind of warranty or
representation by Landlord, including, without limitation, any warranty or
representation as the suitability, competence, or financial strength of the
provider. Without limitation of the foregoing standard, unless all of the
following conditions are satisfied to Landlord's satisfaction, it shall be
reasonable for Landlord to refuse to give its approval:
(i) Landlord shall incur no expense whatsoever with respect to any
aspect of the provider's provision of its services, including without
limitation, the costs of installation, materials and services;
(ii) prior to commencement of any work in or about the Building by the
provider, the provider shall supply Landlord with such written
indemnities, insurance, financial statements, and such other items as
Landlord reasonably determines to be necessary to protect its financial
interests and the interests of the Building relating to the proposed
activities of the provider;
(iii) the provider agrees in writing to abide by such rules and
regulations, Building and other Codes, job site rules and guidelines and
such other requirements as are reasonably determined by Landlord to be
necessary to protect the interests of the Building, the tenants in the
Building and Landlord, in the same or similar manner as Landlord has the
right to protect itself and the Building with respect to proposed
alterations as described elsewhere in this Lease;
(iv) Landlord reasonably determines that there is sufficient space
in the Building for the placement of all of the provider's equipment and
materials;
(v) Landlord receives from the provider such compensation as is
reasonably determined by Landlord to compensate it for space used in the
Building for the storage and maintenance of the provider's equipment,
for the fair market value of a provider's access to the Building, and
the costs which may reasonably be expected to be incurred by Landlord;
(vi) all of the foregoing matters are documented in a written
agreement between landlord and the provider, the form and content of
which is reasonably satisfactory to Landlord.
22.05. Installation and Usage of Wireless Technologies. Tenant shall
not utilize any wireless communications equipment (other than usual and
customary cellular telephones), including antenna and satellite receiver dishes,
within the Tenant's Premises or Building, without Landlord's prior written
consent. Such consent shall not be unreasonably withheld, but may be conditioned
in such a manner so as to protect Xxxxxxxx's financial interests and the
Building's, and the other Tenants' therein, in a manner similar to the
arrangements as described in the immediately preceding paragraphs.
22.06. Limit if Default or Breach. Notwithstanding any provision of
the proceeding paragraphs to the contrary, the refusal of Landlord to grant its
approval to any prospective provider shall not be deemed a default or breach by
Landlord of its obligation under this Lease unless and until Landlord is
adjudicated to have acted recklessly or maliciously with respect to Tenant's
request for approval, and in that event, Tenant shall still have no right to
terminate the Lease or claim an entitlement to Rent abatement, but may assert a
claim for its direct damages, subject to and limited by the other provisions of
the Lease. The provisions of this paragraph may be enforced solely by Xxxxxx and
Landlord, are not for the benefit of any other party, and specifically but
without limitation, no telephone or telecommunications provider shall be deemed
a third party beneficiary of this Lease.
23. INTERIOR STANDARD SIGNAGE CHARGE
23.01. Interior Standard Signage Charge. Tenant shall not be required
to pay Landlord the Standard Interior Signage Charge of One Hundred and Fifty
Dollars ($150.00). However, Xxxxxxxx's shall furnish and install Tenant's name
on Suite Signage outside the Premises in the common hallway wall, on the
Building Lobby Directory, and on Floor Directory, as applicable. Should Tenant
wish to have signage additionally on the monument sign immediately in front of
the Building lobby entrance, such shall be installed by Landlord at the cost of
Tenant.
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24. MULTIPLE COUNTERPARTS/FACSIMILE TRANSMISSION
24.01. Multiple Counterparts/Facsimile Transmission. This Lease may be
signed by the parties in different counterparts and the signature pages
combined to create a document binding on all parties. Additionally, execution
of the Lease by the parties may be accomplished by means of facsimile
transmission and such execution shall be fully binding on all the parties upon
delivery by such a facsimile transmission of the fully executed Lease document.
25. OPTION TO RENEW
25.01 Option to Renew.
(a) Tenant is hereby granted and shall, if not at the time in default
under the Lease, have one (1) individual three (3) year option to renew the
Term of this Lease for an additional three (3) years from the expiration date
of the Term hereof, but otherwise on the same terms, covenants, and conditions
herein contained.
(b) This option shall be exercised only upon Tenant delivering to
Landlord in person or by United States mail on or before one hundred eighty
(180) days before the expiration of the Term hereof, written notice of its
election to extend the Term of this Lease as herein provided.
IN WITNESS WHEREOF, the parties have executed this Lease Rider as of the date
first above written.
LANDLORD: Bayfair Building, TENANT: Vista Laser Centers of the
a California partnership Pacific, Inc.,
a Nevada corporation, and
X. Xxxxxx Xxxxxxx, M.D.,
a married man jointly and
severalty, and Xxxxx Xxxxx,
a married man jointly and
severalty as their sole and
separate property
By /s/ By /s/ X. XXXXXX XXXXXXX
------------------------------- ------------------------------
Its Owner/Mgr Its Chairman
------------------------------- ------------------------------
Its Its /s/ X. XXXXX
------------------------------- ------------------------------
By By President
------------------------------- ------------------------------
(Seal) (Seal)
Page 6 of 6
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Undivided one-quarter interest in real property located at 00000 X. 00xx
Xxxxxx, Xxx Xxxxxxx, together with unimproved lot adjacent, in Alameda County,
described as:
PARCEL ONE:
Beginning at the intersection of the western line of Hesperian Blvd.,
formerly Telegraph Road, with the southwestern line of East 14th Street,
as said streets now exist since May 7, 1929; running thence along said
western line of Hesperian Blvd., south 0 degrees 28' East 190 ft; thence
south 89 degrees 44' 19" west 132.33 ft; thence; north 49 degrees west
156.66 ft; thence north 41 degrees east 230 ft. to said southwestern
line of East 14th St.; thence along the last mentioned line, south 49
degrees east 130 feet to the point of beginning.
PARCEL TWO:
Beginning at a point on the Western line of Hesperian Blvd., formerly
Telegraph Road distant thereon Sough 0 degrees 28' East 195.73 feet from
the intersection thereof with the southwestern line of East 14th St., as
said streets now exist since May 7, 1929; running thence South 89
degrees 44' 19" West 109.95 feet to the direct extension Northeasterly
of the Northwestern line of Lot 10 in Block "b" as said Lot and Block
are shown on the map of "Tract 831", etc. filed Nov. 7, 1947 in Book 27
of Maps, page 59, in the office of the County Recorder of Alameda
County; thence along said last mentioned extended line and along said
Northwestern line of Lot 10, South 41 degrees West 150.86 ft. to the
general Northern line of Xxxxx Xx., as said street is shown on said map
of Tract 831; thence along the last mentioned line from a tangent that
bears South 0 degrees 15' 41" East on a curve to the left, with a radius
of 20 ft., a distance of 31.42 feet, thence tangent with the last
mentioned curve North 89 degrees 44' 19" East 169.84 ft., thence along
the arc of a curve to the left with a radius of 20 ft., a distance of
31.49 ft. to said Western line of Hesperian Blvd.; thence along the
last mentioned line North 0 degrees 28' West 113.33 ft. to the pont of
beginning.
EXHIBIT A
17
EXHIBIT B
[A DRAWING OF THE FLOOR PLAN OF THE FOURTH FLOOR]
18
EXHIBIT C
[A DRAWING OF SUITE 480 CHANGES TO BE COMPLETED]
Suite 480
Portion of 480 = 401 sf
Existing 400 = 824 sf
Total = 1,225 sf
PROPOSAL
Reconfiguration of Suite 400
Existing
SCHEMATIC 1/8" = 1'
Dimensions approximate
General Interior Layout
Not Intended as "Blueprint"
- Existing 110v Duplex Electrical Outlet
19
EXHIBIT D WORK LETTER
1. Landlord shall perform standard Suite preparation including but not limited
to: light fixtures,/lens cleaning, re-xxxxxxx; repairing/replacing ceiling tiles
where necessary; carpet cleaning; and cleaning up, patching and or painting
interior walls and or doors.
2. All of the above items are to be furnished at the expense of the Landlord
prior to occupancy by Xxxxxx.
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JG1.51
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EXHIBIT E
RULES AND REGULATIONS
1. The sidewalks, entrances, lobby, elevators, stairways and public
corridors shall be used only as a means of ingress and egress and shall remain
unobstructed at all times. The entrance and exit doors of all suites are to be
kept closed at all times except at required for orderly passage to and from a
suite. Loitering in any part of the Building or obstruction of any means of
ingress or egress shall not be permitted. Doors and windows shall not be
covered or obstructed.
2. Plumbing fixtures shall not be used for any purposes other than
those for which they were constructed, and no rubbish, newspapers, trash or
other substances of any kind shall be thrown into them. Walls, floors and
ceilings shall not be defaced in any way and no one shall be permitted to mark,
drive nails, screws or drill into, paint, or in any way mar any Building
surface, except that pictures, certificates, licenses and similar items
normally used in Tenant's business may be carefully attached to the walls by
Tenant in a manner to be prescribed by Landlord. Upon removal of such items by
Tenant any damage to the walls or other surfaces, except minor nail holes,
shall be repaired by Tenant.
3. No awning, shade, sign, advertisement or notice shall be inscribed,
painted, displayed or affixed on, in or to any window, door or balcony or any
other part of the outside or inside of the Building or the demised premises.
No window displays or other public displays shall be permitted without the prior
written consent of Landlord. All tenant identification on public corridor
doors beyond building standard will be installed by Landlord for Tenant but
the cost shall be paid by Tenant. No lettering or signs other than the name of
Tenant will be permitted on public corridor doors with the size and type of
letters to be prescribed by Landlord. The directory of the Building will be
provided exclusively for the display and location of Tenant only and Landlord
reserves the right to exclude all other names therefrom. All requests for
listing on the Building directory shall be submitted to the office of Landlord
in writing. Landlord reserves the right to approve all listing requests. Any
change requested by Tenant of Landlord of the name or names posted on directory,
after initial posting, will be charged to Tenant.
4. The cost of any special electrical circuits for items such as
copying machines, computers, microwaves, etc., shall be borne by Tenant unless
the same are part of the building standard improvements. Prior to installation
of equipment Tenant must receive written approval from Landlord.
5. The weight, size and position of all safes and other unusually
heavy objects used or placed in the Building shall be prescribed by Landlord
and shall, in all cases, stand on metal plates of such size as shall be
prescribed by Landlord. The repair of any damage done to the Building or
property therein by putting in or taking out or maintaining such safes or other
unusually heavy objects shall be paid for by Tenant.
6. All freight, furniture, fixtures and other personal property shall
be moved into, within and out of the building at times designated by and under
the supervision of Landlord and in accordance with such regulations as may be
posted in the office of the Building manager. In no event will Landlord be
responsible for any loss or damage to such freight, furniture, fixtures or
personal property from any cause.
7. No improper noises, vibrations or odors will be permitted in the
Building, nor shall any person be permitted to interfere in any way with
tenants or those having business with them. No person will be permitted to
bring or keep within the Building any animal, bird or bicycle or any toxic or
flammable substances without Landlord's prior permission. No person shall
throw trash, refuse, cigarettes or other substances of any kind any place
within or out of the Building except in the refuse containers provided
therefor. Landlord reserves the right to exclude or expel from the Building
any person who, in the judgment of Landlord, is intoxicated or under the
influence of liquor or drugs or who shall in any manner do any act in violation
of the rules and regulations of the Building.
8. All re-keying of office doors or changes to the card access
system, after occupancy, will be at the expense of Tenant. Tenant shall not
re-key any doors or change the card access system in any way without making
prior arrangements with Landlord.
9. Tenant will not install or use any window coverings except those
provided by Landlord, nor shall Tenant use the balconies, if any, for storage,
barbecues, drying of laundry or any other activity which would detract from the
appearance of the Building or interfere in any way with the use of the Building
by other tenants.
10. If Tenant uses the Premises after regular business hours or on
non-business days shall lock any entrance doors to the Building used by Tenant
or take such other steps as are necessary to secure the Building's doors
immediately after entering or leaving the Building.
11. Tenant shall provide and cause all Tenant's employees to use
protective floor mats under all desk chairs used in the Premises.
12. If Tenant requires telegraphic, telephonic, burglar or of similar
services, it shall first obtain, and comply with, Landlord's instructions in
their installations.
13. Tenant shall not waste electricity, water or air-conditioning and
agrees to cooperate fully with Landlord to assure the most effective operation
of the Building's heating and air-conditioning.
14. Landlord reserves the right, exercisable without notice and without
liability to Tenant, to change the name and street address of the Building.
15. Tenant shall not obtain for use on the Premises ice, drinking
water, food, beverage, towel or other similar services or accept barbering or
bootblacking services upon the Premises, except at such hours and under such
regulations as may be fixed by Landlord.
E-1
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EXHIBIT F
ACKNOWLEDGMENT OF COMMENCEMENT
This Acknowledgment is made as of May 15, 1996, with reference to that certain
Lease Agreement (hereinafter referred to as the "Lease") dated May 15, 1996, by
and between Bayfair Building, as "Landlord" herein, and Vista Laser Centers of
the Pacific, as "Tenant".
The undersigned xxxxxx confirms the following:
1. That the Tenant accepted possession of the demised Premises (as described
in said Lease) on May 24, 1996, and acknowledges that the demised Premises are
as represented by Landlord and in good order, condition and repair, and that
the improvements, if any required to be constructed for Tenant by Landlord
under this Lease have been so constructed and are satisfactorily completed in
all respects.
2. That all conditions of said Lease to be performed by Landlord prerequisite
to the full effectiveness of said Lease have been satisfied and that Landlord
has fulfilled all of its duties of an inducement nature.
3. That in accordance with the provisions of Article 3 of said Xxxxx the
Commencement Date of the Term is June 1, 1996, and that, unless sooner
terminated, the original Term thereof expires on May 31, 1997.
4. That said Xxxxx is in full force and effect and that the same represents
the entire agreement between Landlord and Xxxxxx concerning said Xxxxx.
5. That there are no existing defenses which Xxxxxx has against the
enforcement of said Lease by Landlord, and no offsets or credits against Rents.
6. That the Minimum Monthly Base Rent obligation of said Lease is presently in
effect and that all rentals, charges and other obligations on the part of
Tenant under said Lease commenced to accrue on June 1, 1996.
7. That the undersigned Xxxxxx has not made any prior assignment,
hypothecation or pledge of said Lease or of the rents thereunder.
Landlord Bayfair Building, Tenant Vista Laser Centers of
a California partnership the Pacific, Inc., a
Nevada corporation &
X. Xxxxxx Xxxxxxx, M.D.,
a married man jointly &
By /s/ severalty & Xxxxx Xxxxx,
-------------------------------- a married man jointly &
severalty. As their
Title Owner/Mgr sole & separate property.
----------------------------
By By /s/ X. Xxxxxx Xxxxxxx
-------------------------------- ---------------------------------
Title
---------------------------- By
---------------------------------
By /s/ Xxxxx Xxxxx
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