OFFICE LEASE
THIS LEASE is made as of the 18th day of September 1986 by and between Landlord
and Tenant
WITNESSETH:
1. TERMS AND DEFINITIONS. For purpose of this Lease, the following terms
shall have the following definitions and meanings:
A. Landlord: FIFTH & "I" ASSOCIATES
B. Landlord's Address:
0000 Xxxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
C. Tenant: XXXXXX AND XXXXX XXXXX
D. Building: That certain office building designated Building No _______
located at the following address:
000 "X" Xxxxxx
Xxxxxxxxxx, XX 00000
E. Suite 500
F. Premises: Those certain premises defined in Paragraph 2(a) herein below.
G. Rentable Area of Premises: Approximately 2,412 square feet (See Exhibit
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"A-1")
H: Developable Area: That portion of the Rentable Area of Premises,
exclusive of elevator lobbies, public corridors, public restroom mechanical
rooms, electrical rooms, telephone closets and other common areas and loess any
vertical penetrations not included for the special use of Tenant.
I. Floor(s) upon which the Premises are located: First
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J. Term: 10 years and 0 Months
-- -
K. Building Standard Work: All the work to be done at Landlord's expense in
the Premises pursuant to the provisions of the Work Letter Agreement.
L. Building Nonstandard Work: All the work done in the Premises by Landlord
pursuant to the provisions of the Work Letter Agreement other than the Building
Standard Work.
M. Leasehold Improvements: The aggregate of the Building Standard Work and
the Building Nonstandard Work.
N. Scheduled Commencement Date: June 6, 1897
INITIAL: G.D.; M.D.; D.P.
O. Commencement Date: The earliest of the following dates:
The lease shall be effective upon execution. The rent and term shall commence
240 days after execution of this lease.
P. Space Plan Approval Date: N/A
Q. Annual Basic Rent: See Addendum
R. Direct Expenses Base: $0.00 per square foot of Rentable Area.
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S. Tenant's Percentage: 1.41%
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T. Security Deposit: $2,532.60 plus two months rent ($7,597.80)
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U. Brokers: Goldwell Banker.
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V. Work Letter Agreement: That certain Work Letter Agreement attached
hereto as Exhibit "B".
W. Addendum: This lease is subject to the Addendum attached hereto.
2. PREMISES AND COMMON AREAS LEASED:
(a) Subject to the terms and provisions herein contained. Landlord hereby
leases to Tenants and Tenant hereby leases from Landlord the Premises contained
within the Suite outlined on the floor plan attached hereto and marked Exhibit
A-2 and improved by Landlord with the Leasehold Improvements described in the
Work Letter Agreement (unless Tenant is leasing the Premises on an "as is"
basis), said Premises being agreed, for the purposes of this Lease, to have an
area approximately the number of square feet of Rentable Area as designated in
Paragraph 1 and being situated on the Floor(s) designated in Paragraph 1 of the
Building. The Premises exclude the exterior window glass, pipes, conduits, wires
and appurtenant fixtures serving exclusively or in common other parts of the
Building and the Project.
Upon completion of the finalized floor plan of the Premises, the exact
Rentable Area of the Premises shall be determined by Landlord in accordance with
Exhibit A-1. In the event the Rentable Area as so determined is different from
that shown in Paragraph 1, this Lease shall be amended to correctly set forth
the Rentable Area. The Annual Basic Rent, Tenant's Percentage and Security
Deposit shall also be increased or decreased by the percentage change in the
Rentable Area.
(b) Tenants shall have the nonexclusive right to use in common with other
tenants of the Building and other buildings within the Project and subject to
the Rules and Regulations referred to in Paragraph 28 below, the following areas
appurtenant to the Premises:
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(i) The common entrances, restrooms, elevators, stairways and
accessways, docks, ramps, drives and platforms and any passageways and
serviceways thereto, and the common pipes, conduits, wires and appurtenant
equipment serving the Premises:
(ii) Common walkways, roadways, parkways, and sidewalks and other
common areas located in the Project.
(c) Landlord reserves the right form time to time without unreasonable
interference with Tenant's use:
(i) To install, use, maintain, repair and replace pipes, 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,
conduits, wires and appurtenant meters and equipment included in the
Premises which are located in the Premises or located elsewhere outside the
Premises, and to expand the Building:
(ii) To alter, improve, redesignate, temporarily close, and/or
relocate any common facility or common area of the Project.
(d) Nothing in this Lease shall limit the right of Landlord to change,
alter, redesign or otherwise modify the project in its discretion, or construct
additional Buildings or other improvements thereto as Landlord in its discretion
deems necessary or desirable. Such rights shall include, without limitation, a
change in the master plan for the Project, changes in common area of the
Project, changes in the size of the buildings, location of the buildings or
other improvements and the like.
3. TERM. The term of this Lease shall be for the period designated in
Paragraph I commencing on the Commencement Date, and ending on the expiration of
such period, unless the term hereby demised shall be sooner terminated as
hereinafter provided. The Commencement Date and the date upon which the term of
this Lease shall be determined in accordance with the provisions of Paragraph 1
and said dates will be specified in Landlord's Notice of Lease Term Dates
("Notice"), in the form of Exhibit D which is attached hereto and is
incorporated herein by this reference, and shall be served upon Tenant as
provided in Paragraph 9, after Landlord deliver4es or tenders possession of the
Premises to Tenant. Notwithstanding the foregoing, in the event Tenant is
leasing the Premises on an "as is" basis, the term of this Lease shall commence
on the Scheduled Commencement Date.
4. POSSESSION. Tenant agrees that in the event of the inability of Landlord
to deliver the possession of the Premises to Tenant on the Scheduled
Commencement Date this Lease shall not be void or voidable, nor shall Landlord
be liable to Tenant for any loss or damage resulting therefrom, nor shall the
Term be in any way extended, but in such event Tenants shall not be liable for
any rent until such time as Landlord tenders delivery of possession of the
Premises to Tenant with Landlord's work therein, if any, substantially
completed. Should the Landlord tender possession of the Premises to Tenant prior
to the Scheduled Commencement Date, and Tenant elects to accept such prior
tender, such prior occupancy shall be subject to all of the terms, covenants and
conditions of this Lease, including without limitation, the payment of rent.
5. ANNUAL BASIC RENT. Tenant agrees to pay Landlord as Annual Basic Rent
for the Premises the Annual Basic Rent designated in Paragraph 1 (subject to
adjustment as hereinafter provided) in twelve (12) equal monthly installments,
each in advance on the first day of each and every calendar month daring the
Term, except that the first month's rental shall be paid upon the execution
hereof. In the event the Term of this Lease commences or ends on a day other
than the first day of a calendar month, then the rental for such periods shall
be prorated in the proportion that the number of days this Lease in effect
during such periods hears to thirty (30), and such rental shall be paid at the
commencement of such periods. In addition to said Annual Basic Rent, Tenant
agrees to pay the amount of the rental adjustments as and when hereinafter
provided in this Lease. Said Annual Basic Rent, rental adjustments and amount
designated as additional rent hereunder shall be paid to Landlord without any
prior demand therefor and without any deduction or offset whatsoever in lawful
money of the United States of America, which shall be legal tender at the time
of payment, at the address of Landlord designated in Paragraph 1 or to such
other person or at such other place as Landlord may from time to time designate
in writing. All charges to be paid by Tenant hereunder, including without
limitation, the payments for real property taxes, insurance, repairs and parking
(if any) shall be considered additional rent for the purposes of this Lease, and
the word "rent" in this Lease shall include such additional rent unless the
context specifically or clearly implies that only the Annual Basic Rent is
referenced.
6. RENTAL ADJUSTMENT.
INITIAL: G.D.; M.D.; D.P.
(a) For the purpose of this Subparagraph 6(a), the following terms are
defined as follows:
Tenant's Percentage: The Rentable Area of the Premises divided by the
total rentable area of the Building as reasonably determined by the
Landlord.
Direct Expense Base: The amount of the annual Direct Expenses
attributable to the Building to be paid by Landlord before Tenant is
required to pay its share of Direct Expenses in excess of such amount which
in the Lease is zero.
Direct Expenses: All direct costs of operation and maintenance
attributable to the Building ("Direct Expenses") as determined by standard
accounting practices, calculated assuming the Building is one hundred
percent (100%) occupied, including the following costs by way of
illustration, but not limitation: real property taxes and assessments and
any taxes or assessments hereafter imposed thereof; rent taxes, gross
receipt taxes (whether against Landlord or assessed against Tenant and
collected by Landlord or both); the percentage of Project common area
operation and maintenance charges assessed against the Building as more
particularly set forth in the Declaration; water and sewer charges; the net
cost and expense of insurance which Landlord elects or is required to
maintain with respect to the Building and/or the operation thereof
including, without limitation, rental income insurance and other forms of
insurance described in Paragraph 20 below, utilities, janitorial services,
security, labor, utilities surcharges, or any other costs, taxes,
assessments, user charges and the like levied, assessed or imposed by, or
at the direction of, or resulting from statues or regulations, or
interpretations thereof, promulgated by any federal, state, regional,
municipal, local or governmental authority in connection with the use or
occupancy of the Building or the Premises or the parking facilities serving
the Building or the Premises including, without limitation, such taxes,
assessments fees or levies imposed by or at the direction of any assessment
district now or hereafter affecting the Building and/or the Project: all
amortization of the costs, including financing coat for capital
expenditures, prorated on a monthly basis. (i) required by a governmental
entity for energy conservation, life safety or other purposes, or (ii) made
by Landlord to reduce operating expenses: increases in the interest payable
by Landlord under the note evidencing Landlord's financing for the Building
in the event such note contains provisions for variable interest rates
(provided, however, that in interpreting whether or not such note contains
provisions for variable interest rates, it is agreed that if the interest
rate is fixed but such lender is entitled to any participation on the gross
or net income, revenue or cash flow from the operation of the Building,
such participation shall cause the note to be construed to be a variable
interest rate note and payments required of operation of the Building, such
participation shall cause the note to be construed to be a variable
interest rate note and payments required of Landlord to such lender due to
the provisions of such participation agreement shall be construed to be
increased payments of interests); costs incurred in the management of the
Building, if any (including wages and salaries of employees used in the
management, operation and maintenance of the Building, and payroll taxes
and similar governmental charges with respect thereto and administrative
fees not to exceed ten percent (10%) of the annual Direct Expenses
excluding therefrom such fee); air-conditioning, waste disposal; heating;
ventilating; elevator maintenance; supplies, materials, equipment, tools,
and maintenance, cost and upkeep of parking structure, if any, serving the
Building. Direct Expenses shall not include depreciation on the Building or
equipment therein, Landlord's executive salaries or real estate broker's
commissions. Notwithstanding the foregoing definitions, as to each specific
category for which one or more tenants of the Building either pays directly
to third parties or specifically reimburses to Landlord (e.g. separately
metered utilities, separately contracted janitorial service, property taxes
directly reimbursed to Landlord etc.) such tenant's payments with respect
hereto shall not be included in Direct Expenses for purposes of this
definition and each such tenant's share of Direct Expenses shall be
adjusted by excluding from calculation thereof the net rentable area of all
such tents paying such category of Direct Expenses directly to third
parties or reimbursing same directly to Landlord.
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(b) If the amount of the Direct Expenses of any calendar year, or portion
thereof during the term of this Lease is in excess of the Direct Expense Base,
then Tenant shall pay its share of such excess as additional rent. Tenant's
share of such expenses shall be determined by multiplying the amount of the
excess time Tenant's Percentage. Prior to the commencement of the Term and of
each calendar year thereafter, or at such other times as Landlord determines
that there has been an increase in the Direct Expenses, Landlord shall deliver
to Tenant a written estimate of the Direct Expenses and the portion thereof
payable by Tenant for the ensuing year or portion thereof. Concurrently with its
payment of each monthly installment of Annual Basic Rent, Tenant shall pay such
estimated amount of Tenant's share of such Direct Expenses in twelve (12) equal
installments in advance. Within ninety (90) days following the expiration of
each calendar year, Landlord shall furnish Tenant a statement showing in detail
the actual Direct Expenses for the proceeding calendar year. Within thirty (30)
days thereafter, Tenant shall make such further payment as shall be necessary to
adjust the amount paid by Tenant towards Tenant's share of such Direct Expenses
to equal the amount Tenant should have paid as shown on said statement. Any
overpayment made by Tenant shall be credited against installments next coming
due under this Paragraph 6(b). The failure of Landlord to deliver to Tenant any
statement described in this Paragraph shall not relieve Tenant form its share of
Direct Expenses as herein described.
Even though the Term has expired and tenants has vacated the Premises, when
the final determination is made of Tenant's share of Direct Expenses for the
calendar year in which this Lease terminates, Tenant shall immediately pay any
increase due over the estimated expenses paid and conversely any overpayment
made in the event said expenses decrease shall be immediately rebated by
Landlord to Tenant.
7. SECURITY DEPOSIT. Tenant has deposited with Landlord the Security
Deposit designated in Paragraph 1. Said sum shall be held by Landlord as
security for the faithful performance by Tenant of all the terms, covenants, and
conditions of this Lease to be kept and performed by Tenant. If Tenant defaults
with respect to any provision of this Lease, including but not limited to the
provision relating to the payment of rent, Landlord may (but shall not be
required to) use, apply or retain all or any part of this Security Deposit for
the payment of any rent or any other sum in default, or for the payment of any
other amount which Landlord may spend or become obliged to spend by reason of
Tenant's default or to compensate Landlord for any loss or damage which Landlord
may suffer by reason of Tenant's default. If any portion of said deposit is so
used or applied, Tenant shall, within 10 (10) days after demand therefore,
deposit cash with Landlord in an amount sufficient to restore the Security
Deposit to its original amount and Tenant's failure to do so shall be a material
breach of this Lease. Landlord shall not be required to keep this Security
Deposit separate from its general funds, and Tenant shall not be entitled to
interest on such Security Deposit. If Tenant shall fully and faithfully perform
every provision of this Lease to be performed by it, the Security Deposit or any
balance thereof shall be returned to Tenant (or, at Landlord's option, to the
last assignee of Tenant's interests hereunder) at the expiration of the Lease
Term; provided that the Landlord may retain one-half of the Security Deposit
until such time as any amount due from Tenant in accordance with Paragraphs 5
and 6 hereof has been determined and paid in full. Should Landlord sell its
interests in the Premises during the Term hereof and if Landlord deposits with
the purchase thereof of he then inappropriate funds deposited by Tenant as a
aforesaid thereupon Landlord shall be discharged from any further liability with
respect to such Security Deposit.
INITIAL: G.D.; M.D.; D.P.
8. USE. Tenant shall use the Premises for a Deli Restaurant, serving
breakfast, lunch, dinner items and catering. To any other purpose without the
prior written consent of Landlord Tenant shall not use or occupy the Premises in
violation of law or of the certificate or occupancy used for the Building of
which the Premises are part, and shall, upon five (5) days written notice from
Landlord, discontinue any use of the Premises which is declared by any
governmental authority having jurisdiction to the violation of laws or said
certificate of occupancy. Tenant shall comply with any direction of any
governmental authority having jurisdiction which shall, by reason of the nature
of Tenant's use or occupancy of the Premises, impose any duty upon Tenant or
Landlord with respect to the Premises or with respect to the use or occupation
thereof. Tenant shall not do or permit to be done anything which will invalidate
or increase the cost of any fire, extended coverage or any other insurance
policy covering the Building and/or property located therein and shall comply
with the rules, orders, regulations and requirements of the Pacific Fire Rating
Bureau or any other organization performing a similar function. Tenant shall
promptly upon demand reimburse Landlord as additional rent for any additional
premium charged for such policy by reason of Tenant's failure to comply with the
provisions of Paragraph 8. Tenant shall not do or permit anything to be done in
or about the Premises which will in any way obstruct of interfere with the
rights of other tenants or occupants of the Building, or injure or annoy them,
or use or allow the Premises to be used for any improper, immoral, unlawful or
objectionable purpose, nor shall Tenant cause, maintain or permit any nuisance
in, on or about the Premises. Tenant shall not commit of suffer to be committed
any waste in or upon the Premises and shall keep the Premises in first class
repair and appearance.
9. PAYMENTS AND NOTICES. All rents and other sums payable by Tenant to
Landlord hereunder shall be paid to Landlord at the address designated by
Landlord in Paragraph 1 above or at such other places as Landlord may hereafter
designated in writing. Any notice required or permitted to be given hereunder
must be in writing and may be given by personal delivery or by mail, and if
given by mail shall be deemed sufficiently given if sent by registered or
certified mail addressed to Tenant at the Building of which the Premises are a
part, or to Landlord at its address designated in Paragraph 1. Either party may
by written notice to the other specify a different address for notice purposes
except that Landlord may in any event use the Premises as Tenant's address for
notice purposes. If more that one Tenant is named under this Lease, service of
any notice upon any one of said tenants shall be deemed as service upon all of
said tenants.
10. BROKERS. The parties recognize that the brokers who negotiated this
Lease are the brokers whose names are stated in Paragraph 1, and agree that
Landlord shall be solemnly responsible for the payment of brokerage commissions
to said brokers and that Tenant shall have no responsibility thereof. If Tenant
has dealt with any other person or real estate broker in respect of lasing or
renting space in the Building Tenant shall be solemnly responsible for the
payment of any fee due said person of firm and Tenant shall hold Landlord free
and harmless against liability with respect thereto.
11. HOLDING OVER. If Tenant holds over after the expiration or earlier
termination of the Tern hereof without the express written consent of Landlord
Tenant shall become a tenant at sufferance only, at a rental rate equal to one
hundred fifty percent (150%) of the rent in effect upon the date of such
expiration (subject to adjustments as provided in Paragraph 5 and 6 hereof and
prorated on a daily basis), and otherwise subject to the terms, covenants and
conditions herein specified, as for as applicable. Acceptance by Landlord of
rent after such expiration or earlier termination shall not constitute a
holdover hereunder or result in a renewal. The foregoing provisions of this
Paragraph 11 are in addition to and do not affect Landlord's right of re-entry
or any rights of Landlord hereunder or as otherwise provided by law. It Tenant
fails to surrender to Premises upon expiration of this Lease despite demand to
do so by Landlord. Tenant hereby agrees to indemnify and hold Landlord harmless
from any loss or liability, including without limitation, any claim made by any
succeeding tenant founded on or resulting from such failure to surrender.
12. TAXES AND TENANT'S PROPERTY.
(a) Tenant shall be liable for and shall pay before delinquency, taxes
levied against any personal property or trade fixtures placed by Tenant in or
about the Premises. If any such taxes of on Tenant's personal property or trade
fixtures are levied against Landlord or Landlord's property or if the assessed
value of the Premises is increased by the inclusion therein of a value placed
upon such personal property or trade fixtures of Tenant and if Landlord, after
written notice to Tenant, pays the taxes based upon such increased assessments,
which Landlord shall have the right to do regardless of the validity thereof,
but only under proper protest if requested by Tenant, Tenant shall upon demand
repay to Landlord the taxes levied against Landlord , or the proportion of such
taxes resulting from such increase in the assessment; provided that in any such
event at Tenant's sole cost and expense Tenant shall have the right, in the name
of Landlord and with Landlord's full cooperation, to bring suit in any court of
complete jurisdiction to recover the amount of any such taxes so paid under
protest, any amount so recovered to belong to Tenant.
(b) If the Leasehold Improvements in the Premises, whether installed and/or
paid by Landlord or Tenant and whether or not affixed to the real property so as
to become a part thereof, are assessed for real property tax purposes at a
valuation higher than the valuation at which Leasehold Improvements conforming
to the Building Standard Work in other space in the Building are assessed, then
the real property tax and assessments levied against Landlord or the property by
reason of excess assessed valuation shall be deemed to be taxes levied against
personal property of Tenant and shall be governed by the provisions of
Subparagraph 12 (a) above.
13. ALTERATIONS.
(a) Tenant shall make not alterations, decorations, additions or
improvements in or to the Premises without Landlord's prior written consent, and
then only by contractors or mechanics approved by Landlord. Tenant agrees that
there shall be no construction of partitions or other obstructions which might
interfere with Landlord's free access to mechanical installations or service
facilities of the Building or interfere with the moving of Landlord's equipment
to or from the enclosures containing said installations or facilities. All such
work shall be done at such time and in such manner as Landlord may from time to
time designate. Tenant agrees that all work done by Tenant shall be performed in
full compliance with all laws, rules, orders, directions and regulations of all
governmental agencies, offices, departments, bureaus and boards having
jurisdiction. Before commencing any work, Tenant shall give Landlord at least
fifteen (15) days written consent of the proposed commencement of such work and
shall, if required by Landlord, secure at Tenant's own cost and expense, a
completion and lien indemnify hold, satisfactory to Landlord, for said work
Tenant further covenants and agrees that any mechanic's lien filed against the
Premises or against the Building for work claimed to have been done for, or
material claimed to have been furnished to Tenant, will be discharged by Tenant,
by bond or otherwise, within ten (10) days after the filing thereof, at cost and
expense of Tenant. All alterations, decorations, additions or improvements upon
the Premises, made by wither party, including all wallcovering, built-in-cabinet
work, paneling and the like, unless Landlord elects otherwise, become the
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property of Landlord and shall remain upon Landlord be surrendered with the
Premises, except that Landlord may have written notice to Tenant, given at least
thirty (30) days prior to the end of the Term, require Tenant to remove all
partitions, counters railing and the like installed by Tenant, and Tenant shall
repair any damage to the Premises arising form such removal or, at Landlord's
opinion, shall pay to the Landlord all of Landlord's costs of such removal and
repair.
(b) All articles of personal property and all business and trade fixtures,
machinery and equipment, furniture and movable partitions owned by Tenant or
installed by Tenant at its expense in the Premises shall be and remain the
property of Tenant and may be removed by Tenant at any time during the Lease
Term provided Tenant is not in default hereunder, and provided further that
Tenant shall repair any damage caused by such removal. If Tenant shall fail to
remove all of its effects from said Premises upon termination of this Lease for
any cause whatsoever, Landlord may, at its opinion, remove the same in any
manner that Landlord shall choose, and store said effects without liability to
Tenant for loss thereof, and Tenant agrees to pay Landlord upon demand any and
all expenses incurred in such removal, including court costs and attorneys' fees
and storage charges on such effects for any length of time the same shall be in
Landlord's possessions, or Landlord may, at its opinion, without notice, sell
said effects, or any of the same, at private sale and without legal process, for
such price as Landlord may obtain and apply the proceeds of such sale upon any
amounts due under this Lease from Tenant to Landlord and upon the expense
incident to the removal and sale of said effects.
(c) Landlord reserves the right at any time and from time to time without
the same constituting an actual or constructive eviction and without incurring
any liability to Tenant thereof or otherwise affecting Tenant's obligations
under this Lease, to make such changes, alterations, additions, improvements,
repairs or replacements in or to the Building (including the Premises if
required do to do by any law or regulation) and the fixtures and equipment
thereof, as well as in or to the street entrances, halls, passages and stairways
thereof, to change the name by which the Building is commonly known, as Landlord
may deem necessary or desirable. Nothing contained in this Subparagraph 13(c)
shall be deemed to relieve Tenant of any duty, obligation or liability of Tenant
with respect to making any repair, replacement or improvement or complying with
any law, order or requirement of any government of other authority and nothing
contained in this Subparagraph 13(c) shall be deemed or construed to impose upon
Landlord any obligation, responsibility or liability whatsoever, for the care,
supervision or repair of the Building or any part thereof other than as
otherwise provided in this Lease.
14. CONDITIONS OF PREMISES AND REPAIRS.
(a) Tenant acknowledges that neither Landlord nor any agent of Landlord has
made any representation or warranty with respect to the suitability of either
for the conduct of Tenant's business except as specifically herein set forth.
Tenant's taking possession of the Premises shall conclusively establish that the
Premises and the Building were at such time in good and sanitary order,
condition and repair. Tenant shall, at Tenant's sole cost and expense, make all
repairs to the non-structural portions of the Premises and shall keep, maintain
and preserve the Premises in first class condition and repair. Tenant shall upon
the expiration or sooner termination of the Term hereof of surrender the
Premises to Landlord in the same condition as when received, ordinary wear and
tear excepted. Landlord shall have no obligation to alter, remodel, improve,
repair, decorate or paint the Premises or any party thereof.
(b) Anything contained in Subparagraph 14(a) above to the contrary
the Building, including the basic plumbing, heating, ventilating, air
conditioning and electrical systems installed or furnished by Landlord, unless
such maintenance and repairs are caused in part or in whole by the act, neglect,
fault of or omission of any duty by Tenant, its agents, servants, employees or
invites, in which case Tenant shall pay to Landlord, as additional rent, the
responsible cost of such maintenance and repairs. Landlord shall not be liable
for any failure to make any such repairs or to perform any maintenance unless
such failure shall persist for an unreasonable time after written notice of the
need of such maintenance and repairs is given to Landlord by Tenant. Except as
provided in Paragraph 21 hereof there shall be no abatement of rent and no
liability of Landlord by reason of any injury to or interference with Tenant's
business arising from the making of any repairs, alterations or improvements in
or to any portion of the Building or the Premises or in or to fixture,
appurtenances and equipment therein. Tenant waives the right to make repairs at
Landlord's expense under any law, statute or ordinance now or hereafter in
affect.
15. LIENS. Tenants shall not permit any mechanic's, material men's or other
liens to be filed against the real property of which the Premises form a part
nor against the Tenant's leasehold interest in the Premises. Tenant further
covenants and agrees that any mechanic's lien filed against the Premises or
against the Building for work claimed to have been done for, or materials
claimed to have been furnished to Tenant, will be discharged by Tenant, by bond
or otherwise, within ten (10) days after the filing thereof, at the cost and
expenses of Tenant. Landlord shall have the right at all reasonable times to
post and keep posted on the Premises any notices which it deems necessary for
protection from such liens. If any such liens are filed, Landlord may, without
waiving its rights and remedies based on such breach of Tenant and without
releasing Tenant from any of its obligations, cause such liens to be released by
any means it shall deem proper, including payment in satisfaction of the claim
giving rise to such lien. Tenant shall pay to Landlord at once, upon notice by
Landlord, any sum paid by Landlord to remove such liens, together with interests
at the lesser of fifteen percent (15%) per annum or the maximum non-usurious
rate annum permitted by law form the date of such payment by Landlord.
16. ENTRY BY LANDLORD. Landlord reserves and shall at any and all times
have the right to enter the Premises to inspect the same, to supply janitor
service and any other services to be provided by Landlord to Tenant hereunder,
to submit said Premises to prospective purchases or tenants, to post notices of
non-responsibility, alter, improve or repair the Premises or any other portion
of the Building, all without being deemed guilty for any eviction of Tenant and
without abatement of rent, and may, in order to carry out such purposes, erect
scaffolding and any other necessary structures where reasonably required by the
character of the work to be performed, provided that the business of Tenant
shall be interfered with as little as is reasonably practical. Tenant hereby
waives any claim for damages for any injury or inconvenience to or interference
with Tenant's business, any loss of occupancy or quiet enjoyment of the
Premises, and any other loss occasioned hereby. For each of the aforesaid
purposes, Landlord shall at all times have and retain a key with which to unlock
all of the doors in, upon and about the Premises, excluding Tenant's vaults and
safes, and Landlord shall have the right to use any and all means which Landlord
my deem proper to open said doors in an emergency in order to obtain entry to
the Premises, and any entry to the Premises obtained by Landlord by any of said
means, or otherwise, shall not under any circumstances be construed or deemed to
be a forcible or unlawful entry into, or a detainer of, the Premises, or an
eviction of Tenant from the Premises or any portion thereof, and any damage
caused on account shall be paid by Tenant. It is understood and agreed that no
provision of this Lease shall be construed as obligating Landlord to perform any
repairs, alterations or decorations except as other wise expressly agreed herein
to be performed by Landlord.
INITIAL: G.D.; M.D.; D.P.
17. UTILITIES AND SERVICES. Provided that Tenant is not in default
hereunder, Landlord agrees to furnish to the Premises during reasonable hours of
generally recognized business days, subject to the conditions and in accordance
with the standards set forth in the Rules and Regulations as defined in
Paragraph 28 hereof, as may be amended in writing by Landlord form time to time
during the Term of this Lease and delivered to Tenant, reasonable quantities of
electric current for normal lighting and fractional horsepower office machines,
water for lavatory and drinking purposes, heat and air-conditioning required in
Landlord's judgment for the comfortable use and occupation of the Premises, and
elevator service by non-attended automatic elevators. Landlord shall not be
liable for, and Tenant shall not be entitled to any abatement or reduction of
rent by reason of Landlord's failure to furnish any of the foregoing when such
failure is caused by accident, breakage, repairs, strikes, lockouts or other
labor disturbances or labor disputes of any character, of any other causes. It
Tenant requires or utilizes more water or electrical power than is considered
reasonable or normal by Landlord, Landlord may at its opinion require Tenant to
pay, as additional rent, the cost, as fairly determined by Landlord, incurred by
such extraordinary usage. In addition, Landlord may install separate meter(s)
for the Premises, at Tenant's sole expense, and Tenant thereafter shall pay all
charges of the utility provided service. Tenant shall cooperate with any present
or future government, and with any conservation practices established by
Landlord. If there is any failure, stoppage or interruption thereof, Landlord
shall use reasonable diligence to resume services promptly. Landlord shall at
all reasonable times have free access to all mechanical installations of the
Building, including but not limited to air-conditioning equipment and vents,
fans, ventilating and machine rooms and electrical closets. See Addendum.
18. INDEMNIFICATION. Tenant hereby agrees to indemnify and hold harmless
Landlord against and from any and all claims arising from Tenant's use of the
Premises or the conduct of its business from any activity, work or thing done,
permitted or suffered by Tenant in or about the Premises, and further agrees to
indemnify and hold harmless Landlord against and from any and all claims arising
from any breach of default in the performance of any obligation on Tenant's part
to be performed under the terms of this Lease, or arising from any act, neglect,
fault or omission of Tenant, or its agents or employees, and from and against
all costs, attorneys' fees, expenses and liabilities incurred in or about such
claim or any action or proceeding brought thereon; and in case any action or
proceeding be brought against Landlord by reason of any such claim, Tenant upon
notice from Landlord shall defend the same at Tenant's expense by counsel
approved in writing by Landlord. Tenant, as a material part of the consideration
to Landlord, hereby assumes all risk of damage to property or injury to persons
in, upon or about the Premises from any cause whatsoever except that which is
caused by the failure of Landlord to observe any of the terms and conditions of
this Lease and such failure has persisted for an unreasonable period of time
after written notice of such failure, and Tenant hereby waives all its claims in
respect thereof against Landlord.
19. DAMAGE TO TENANT'S PROPERTY. Notwithstanding the provisions of
Paragraph 18 to the contrary, Landlord or its agents shall not be liable for any
damage to property entrusted to employees of the Building, nor for loss or for
damage to any property by theft or otherwise, nor for any injury or damage to
persons or property resulting from fire, explosion, falling plaster, steam, gas,
electricity, water or rain which may leak form any part of the Building or from
the pipes, appliances or plumbing works therein or from the roof, street or
sub-surface or from any other place or resulting from dampness or any other
4
cause whatsoever. Landlord or its agents shall not be liable for the
interference with or other incorporeal, nor shall Landlord be liable for latent
defect in the Premises or in the Building. Tenant shall give prompt notice to
Landlord in case of fire or accident in the Premises or in the Building or of
defects therein or in the fixtures or equipment.
20. INSURANCE.
(a) Tenant shall, during the entire Term hereof and during any rent free
period of prior occupancy, at its sole cost and expense, obtain, maintain and
keep in full force and effect, with Tenant, Landlord and the mortgages and
ground lessors (if any) of Landlord's named as insured therein as their
respective interests may appear, the following insurance:
(i) Fire insurance including extended coverage, vandalism and malicious
mischief upon property of every description and kind owned by Tenant
and located in the Building or for which Tenant is legally or
installed by or on behalf of Tenant including, without limitation,
furniture, fittings, installations, fixtures and any other personal
property, in an amount not less than ninety percent (90%) of the full
replacement cost thereof. In the event that there shall be a dispute
as to the amount which comprises full replacement cost, the decision
of Landlord or the mortgagees of Landlord shall be conclusive.
(ii) Comprehensive General Liability Insurance, coverage to include
personal injury, bodily injury, broad form property damage, operation
hazard, owner's protective coverage, contractual liability, products
and completed operations liability in limits of not less than One
Million Dollars ($1,000,000) inclusive.
(iii) Business interruption insurance in such amount as will reimburse
Tenant for direct or indirect loss of earnings attributable to all
perils commonly insured by prudent tenants or attributable to
prevention of access to the Premises or to the Building as a result of
such perils.
(iv) Worker's Compensation and Employer's Liability insurance in form and
amount as required by law.
(v) Any other form or forms of insurance as Tenant or Landlord or the
mortgagees or ground lessors (if any) of Landlord may reasonably
require from time to time in form, in amounts and for insurance risks
against which a prudent tenant would protect itself.
(b) All policies shall be taken out with insurers acceptable to Landlord
and in form satisfactory from time to time to Landlord. Tenant agrees that
certificates of insurance on the Landlord's standard form, or, if required by
Landlord or the mortgagees or ground lessors (if any) of Landlord, certified
copies of each insurance policy, will be delivered to Landlord as soon as
practicable after the placing of the required insurance, but in no event later
than ten (10) days after Tenant takes possession of all or any part of the
Premises, including possession taken under the last sentence of Paragraph 4
hereof. All policies shall contain an undertaking by the insurers to notify
Landlord and the mortgagees or ground lessors (if any) of Landlord in writing
not less thirty (30) days prior to any material change, reduction in coverage,
cancellation, or other termination thereof.
(c) In the event of damage to or destruction of the Building entitling
Landlord to terminate this Lease pursuant to Paragraph 21 hereof, if the
Premises have also been damaged, and if Landlord terminates this Lease, Tenant
will immediately pay to Landlord all of its insurance proceeds, if any, relating
to the Leasehold Improvements and alterations (but not to Tenant's trade
fixtures, equipment, furniture or other personal property of Tenant) in the
Premises. If the termination of this Lease, at Landlord's election, is due to
damage to the Building, and if the Premises have not been damaged, Tenant will
deliver to Landlord, in accordance with the provisions of this Lease, the
Leasehold Improvements, the alterations and the Premises.
(d) Landlord covenants and agrees that throughout the Term it will insure
the Building (excluding any property with respect to which Tenant is obliged to
insure pursuant to the provisions of Subparagraph 20(a) above against damage by
fire and standard extended coverage perils and public liability insurance in
such reasonable amounts with such reasonable deductibles as would be carried by
a prudent owner of a similar building in Sacramento, California. In addition,
Landlord may keep and maintain in full force and effect during the Term, rental
income insurance insuring Landlord against abatement of loss of rent, including
items of additional rent, in case of fire or other casualty similarly insured
against, in an amount at least equal to the Annual Basis Rent during one
calendar year hereunder, Landlord may, but shall not be obliged to, take out and
carry any other form or forms of insurance as it or the mortgagees or ground
lessors (if any) of Landlord may reasonably determine advisable. Notwithstanding
any contribution by Tenant to the cost of insurance premiums, with respect to
the Building or any alterations of the Premises as provided herein, Tenant
acknowledges that it has no right to receive any proceeds from any such
insurance policies carried by Landlord, although Landlord shall use such
proceeds in the repair and reconstruction of the Building and the Premises
unless provisions of Subparagraph 20(c) above shall apply. Landlord will not
carry insurance of any kind on Tenant's furniture or furnishings, or on any
fixtures, equipment, improvements or appurtenances of Tenant under this Lease,
and Landlord shall not be obliged to repair any damage thereto or replace the
same.
(e) Tenant agrees that it will not keep, use, sell or offer for sale in or
upon the Premises any article which may be prohibited by any insurance policy in
force from time to time covering the Building and Building Standard Work. In the
event of Tenant's occupancy or conduct of business in or on the Premises,
whether or not Landlord has consented to the same, results in any increase in
premiums for the insurance carried from time to time by Landlord with respect to
the Building, Tenant shall pay any such increase in premiums as additional rent
within ten (10) days after being billed therefore by Landlord. In determining
whether increased premiums are a result of Tenant's occupancy of the Premises, a
schedule issued by the organization computing the insurance rate on the
Building, or the Leasehold Improvements showing the various components of such
rate, shall be conclusive evidence of the several items and charges which make
up such rate. Tenant shall promptly comply with all reasonable requirements of
the insurance authority or any insurer now or hereafter in effect relating to
the Premises.
(f) If any insurance policy carried by Landlord, as provided by
Subparagraph 20(d) above, shall be cancelled or cancellation shall be threatened
or the coverage thereunder reduced or threatened to be reduced in any way by
reason of the use or occupation of the Premises or any part thereof by Tenant or
by any assignee or sub-tenant of Tenant or by anyone permitted by Tenant to be
upon the Premises and, if Tenant fails to remedy the condition giving rise to
cancellation, threatened cancellation or reduction of coverage within
forty-eight (48) hours after notice thereof, Landlord may, at its opinion,
either terminate this Lease or enter upon Premises and attempt to remedy such
condition and Tenant shall forthwith pay the cost thereof to Landlord as
additional rent. Landlord shall not be liable for any damage or injury caused to
any property of Tenant or of others located in the Premises as a result of such
entry. In the event that Landlord shall be unable to remedy such condition, then
Landlord shall have all of the remedies provided for in this Lease in the event
of a default by Tenant. Notwithstanding the foregoing provisions of this
Subparagraph 20(f), if Tenant fails to remedy as aforesaid, Tenant shall be in
default of its obligation hereunder and Landlord shall have no obligation to
attempt to remedy such default.
(g) Any policy or policies of fire, extended coverage or similar casualty
insurance, which either party obtains in connection with the Premises shall
include a clause or endorsement denying the insurer any rights of subrogation
against the other party to the extend rights have been waived by the insured
prior to the occurrence of injury or loss. So long as such policies are not
affected thereby, Landlord and Tenant waive any rights of recovery against the
other for injury or loss due to hazards covered by insurance containing such a
waiver of subrogation clause or endorsement to the extend of the injury or loss
covered thereby.
21. DAMAGE OR DESTRUCTION.
(a) In the event the Building and/or the Building Standard Work or any
insured alterations are damaged by fire or other perils covered by Landlord's
extended coverage insurance to an extend not exceeding twenty-five (25%) percent
of the full insurable value thereof and if damage thereto is such that the
Building and/or the Building Standard Work and any insured alterations may be
repaired, reconstructed or restored within a period of ninety (90) days from the
date of happening of such casualty and Landlord receives insurance proceeds
sufficient to cover the cost of such repairs, Landlord shall commence and
proceed diligently with the work of repair, reconstruction and restoration and
the Lease shall continue in full force and effect. If such work of repair,
reconstruction and restoration in such as to require longer than ninety (90)
days or exceeds (25%) percent of the full insurable value thereof, of if said
insurance proceeds will not sufficient to cover the cost of such repairs,
Landlord either may elect to so repair, reconstruct or restore the Building
and/or the Building Standard Work and any insured alterations and the Lease
shall continue in full force or Landlord either may elect not to repair,
reconstruct or restore the Building and/or the Building Standard Work and any
insured alterations and the Lease shall in such event terminate. Under any of
the conditions of this Subparagraph 21(a), Landlord shall give written notice to
Tenant of its intention within thirty (30) days from the date of such event of
damage or destruction which notice shall include Landlord's reasonable estimates
of the period required to effect such repair. If such period is in excess of one
hundred eighty (180) days, provided Tenant is not in default hereunder. Tenant,
within three (3) days of the date of such notice, shall have the right to
terminate this Lease by written notice of such election delivered to Landlord
within said three (3) day period. Failure of Tenant to so notify Landlord within
said three (3) day period shall constitute Tenant's irrevocable election not to
terminate this Lease. In the event Landlord elects not to restore said Building
and/or the Building Standard Work and any insured alterations, this Lease shall
be deemed to have terminated as of the date of such partial destruction.
(b) Upon any termination of this Lease under any of the provisions of this
Paragraph 21, the parties shall be released thereby without further obligation
to the other from the date possession of the Premises is surrendered to Landlord
except for items which have thereto force accrued and are then unpaid.
5
(c) In the event of repair, reconstruction and restoration by Landlord as
herein provided, the provided to be paid under this Lease shall be abated to the
extend of any rental abatement insurance proceeds received by Landlord during
such repair, reconstruction and restoration, Tenant shall not be entitled to any
compensation or damages for loss in the use of the whole or any part of the
Premises and/or inconvenience or annoyance occasioned by such damage, repair,
reconstruction and restoration.
(d) Tenant shall not be released from any of its obligations under this
Lease except to the extend and upon the conditions expressly stated in this
Paragraph 21. Notwithstanding anything to the contrary contained in this
Paragraph 21, should Landlord be delayed or prevented from repairing or
restoring the damaged Premises within one (1) year after the occurrence of such
damage or destruction by reason of acts of God, war, governmental restrictions,
inability to procure the necessary labor or materials, or other cause beyond the
control of Landlord, Landlord shall, at its election, be relieved of its
obligations to make such repairs or restoration and Tenant shall be released
from any of its obligations under this Lease as of the end of said one (1) year
period.
(e) In the event that damage is due to any cause other than fire or other
peril covered by extended coverage insurance maintained by Landlord, Landlord
may elect to terminate this Lease.
(f) It is hereby understood that if Landlord is obligated to or elects to
repair or restore as herein provided, Landlord shall be obligated to make
repairs or restoration only to those portion of the Building and the Premises
which are originally provided at Landlord's expense, and the repairs and
restoration of items not provided at Landlord's expense shall be obligation of
Tenant.
(g) Notwithstanding anything to the contrary contained in this Xxxxxxxxx
00, Xxxxxxxx shall not have any obligation whatsoever to repair, reconstruct or
restore the Premises when the damage resulting form any casually covered under
this Paragraph 21 occurs during the last twelve (12) months of the Term of this
Lease or any extension hereof.
(h) The provisions of California Civil Code Sec. 1932, Subsection 2, and
Sec. 1933, Subsection 4, are hereby waived by Tenant.
22. EMINENT DOMAIN. In case of whole of the Premises, or such part thereof
as shall substantially interfere with Tenant's use and occupancy thereof, shall
be taken for any public or quasi-purpose by any lawful power or authority by
exercise of the right of appropriation, condemnation or eminent domain, or sold
to prevent such taking, either party shall have the right to terminate this
Lease effective as of the date possession is required to be surrendered to said
authority. Tenant shall not assert any claim against Landlord or the taking
authority for any compensation because of such taking, and Landlord shall not be
entitled to receive the entire amount of any award without deduction for any
estate or interest of Tenant. In the event the amount of property or the type of
estate taken shall not substantially interfere with the conduct of Tenant's
business, but other portions of the Building are taken such to render ownership
of same undesirable as determined by Landlord in its discretion, Landlord shall
be entitled to the entire amount of the award without deduction for any estate
or interest of Tenant, and Landlord at his opinion may terminate this Lease. If
Landlord does not elect to so terminate, Landlord shall promptly proceed to
restore the Premises to substantially their same condition prior to such partial
taking, and a proportionate allowance shall be made to Tenant for the rent
corresponding to the time during which, and to the part of the Premises of
which, Tenant shall be so deprived on account of such taking or restoration.
Nothing contained in this Paragraph shall be deemed to give Landlord any
interest in any award made to Tenant for the taking of personal property and
fixtures belonging to Tenant.
23. DEFAULTS AND REMEDIES.
(a) The occurrence of any one or more of the following events shall
constitute a default hereunder by Tenant:
(i) The vacation or abandonment of the Premises by Tenant. Abandonment is
herein defined to include, but is not limited to; (A) any absence by
Tenant from the Premises for a period of five (5) days or longer while
in default of any provision of this Lease; (B) Tenant's failure to
respond within five (5) days written notice from Landlord stating
Landlord's reasonable belief that Tenant has abandoned the Premises
and stating Landlord's election to terminate this Lease upon the
expiration of such five (5) days period unless Landlord receives a
written notice from Tenant within five (5) days stating: a) Tenant's
intention not to abandon the Lease; and b) an address which Tenant may
be served by certified mail in any action for unlawful detainer of the
Premises.
(ii) The failure by Tenant to make any payment of rent or additional rent
or any other payments required to be made by Tenant hereunder, as and
when due, where such failure shall constitute for a period of three
(3) days after written notice thereof from Landlord to Tenant;
provided however, that any such notice shall be in lieu of, and not in
addition to, any notice required under California Code of Civil
Procedure Sec.1161.
(iii) (1) The making by Tenant of any general assignment for the benefit or
creditors; (2) the filing by or against Tenant of a petition to have
Tenant adjudged a bankrupt or a petition for reorganization or
arrangement under any law relating to bankruptcy (unless in the case
of a petition filed against Tenant, the same is dismissed within
thirty (30) days; (3) the appointment of the trustee or receiver to
take possession substantially all of Tenant's assets located at the
Premises or of Tenant's interests in this Lease, where possession is
not restored to Tenant within thirty (30) days; or (4) the attachment,
execution or other juridical seizure of substantially all of Tenant's
assets located at the Premises or of Tenant's interests in this Lease,
where such seizure is discharged within thirty (30) days.
(iv) The failure of Tenant to observe or perform any of the expressed or
implied covenants or provisions of this Lease to be observed or
performed by Tenant, other than as specified in Subparagraph 23(a)(i),
(ii) or (iii) above, where such failures shall continue for a period
of ten (10) days after written notice thereof from Landlord to Tenant;
provided, however, that any such notice shall be in be in lieu of, and
not in addition to, any notice required under California Code of Civil
Procedure Sec. 1161; provided, further, that if the nature of Tenant's
default us such that more than of ten (10) days are reasonably
required for its cure, then Tenant shall not be deemed to be in
default if Tenant shall commence such sure within said ten-day period
and thereafter diligently prosecute such cure to completion.
(b) In the event of any such default by Tenant, in addition to any other
remedies available to Landlord at law or in equity, Landlord shall have the
immediate option to terminate this Lease and all rights of Tenant hereunder. In
the event that Landlord shall elect to so terminate this Lease then Landlord may
recover from Tenant:
(i) the worth at the time of award of any unpaid rent which had been
earned at the time of such termination; plus
(ii) 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 award
exceeds the amount of such rental loss that Tenant proves could have
been reasonably avoided; plus
(iii) 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 exceeds the amount of
such rental loss that Tenant proves could be reasonably avoided; plus
(iv) any other amount necessary to compensate Landlord for all the
detriment caused by Tenant's failure to perform his obligations under
this Lease or which in the obligatory course of things would be likely
to result therefrom.
As used in Subparagraphs 23(b) and (ii) above, the "worth at the time of
award" is computed by allowing interest at the maximum rate permitted by law per
annum. As used in Subparagraphs 23(b) and (ii) above, the "worth at the time of
award" is 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) In the event of any such default by Tenant, Landlord shall also have
the right, with or without terminating this Lease, to re-enter the Premises and
remove all persons and property from the Premises; such property may be removed
and stored in a public warehouse or elsewhere at the cost of and for the account
of Tenant. No re-entry or taking possession of the Premises by Landlord pursuant
to this Subparagraph 239(c) shall be construed as an election to terminate this
Lease unless a written notice of such intention be given to Tenant or unless the
terminations thereof be decreed by a court of competent jurisdiction. In
addition to all other rights of Landlord pursuant to this Lease, Landlord shall
have all of the rights set forth in California Civil Code Section 1951. 4, as
amended from time to time.
(d) All rights, options and remedies of Landlord contained in this Lease
shall be construed and held to be cumulative, and no one of them shall be
exclusive to the other, and Landlord shall have the right to pursue any one or
all of such remedies or any other remedy or relief which may be provided by law,
whether or not stated in this Lease. No waiver of any default of Tenant
hereunder shall be implied from any acceptance by Landlord of any rent or other
payments due hereunder or any omission by Landlord to take any action on account
of such default if such default persists or is repeated, and no express waiver
shall affect defaults other than as specified in said waiver. The consent or
approval of Landlord to or any act by Tenant requiring Landlord's consent or
approval shall not be deemed to waive or render unnecessary Landlord's consent
or approval to or of any subsequent similar acts by Tenant.
6
24. ASSIGNMENT AND SUBLETTING. Tenant shall assign or encumber its interest
in this Lease and Premises, as sublease all or any part of the Premises, or
allow any other person or entity to occupy or use all or any part of the
Premises, without first obtaining Landlord's prior written consent. Any
assignment, encumbrance or sublease without Landlord's prior written consent
shall be voidable, at Landlord's election, and shall constitute a default. For
purposes thereof, in the event Tenant is a partnership, a withdrawal or change
of partners owning more than a fifty percent (50%) interest in the partnership,
or if Tenant is a corporation, any transfer of fifty percent (50%) of its stock,
shall constitute a voluntary assignment and shall be subject to these
provisions. No consent to an assignment, encumbrance or sublease shall
constitute a further waiver of the provisions of the Paragraph. Tenant shall
notify Landlord in writing of Tenant's intent to assign, encumber or sublease
this Lease, the name of the proposed assignee or sublessee, information
concerning the financial responsibility of the proposed assignee or sublessee
and the term of the proposed assignment or subletting, and Landlord shall,
within thirty (30) days of receipt of such written notice, and additional
information requested by Landlord concerning the proposed assignee's or
sublessee's financial responsibility, elect one of the following:
(a) Consent to such proposed assignment, encumbrance or sublease;
(b) Refuse such consent, which refusal shall be on reasonable grounds; or
(c) Elect to terminate this Lease, or in case of partial sublease, to
terminate this Lease as to the portion of the Premises proposed to be
sublet.
As a condition to granting its consent to any assignment, encumbrance or
sublease Landlord may require that the assignee or sublessee remit directly to
Landlord on a monthly basis, all monies due to Tenant by said assignee or
sublessee. Landlord shall not be acting unreasonably in refusing to consent to
any proposed assignment or sublet if at the date such consent is sought Tenant
is in default hereunder. In the event that Landlord shall consent to an
assignment or sublease under the provisions of this Paragraph 24, Tenant shall
pay Landlord's processing costs and attorney's fees incurred in giving such
consent. If for any proposed assignment or sublease Tenant receives rent or
other considerations, either initially or over the term of the assignment or
sublease, in excess of the rent called for hereunder, or in case of the sublease
of a portion of the Premises, in excess of such rent fairly allocable to such
portion, after appropriate adjustments to assure that all other payments called
for hereunder are taken into account, Tenant shall pay to Landlord as additional
rent hereunder one hundred (100%) percent of the excess of each such payment of
rent or other consideration received by Tenant promptly after its receipt.
Landlord's waiver or consent to any assignment or subletting shall not relieve
Tenant from any obligation under this Lease. Occupancy of all or part of the
Premises by parent, subsidiary, or affiliated companies of Tenant shall not be
deemed an assignment or subletting. Landlord's right to terminate this Lease as
to all or a portion of the Premises on assignment or subletting shall not
terminate as a result of Landlord's consent to the assignment of this Lease or
the subletting of all or a portion of the Premises, or Landlord's failure to
exercise this right with respect to any assignment or subletting.
25. SUBORDINATION. Without the necessity of any additional documents being
executed by Tenant for the purpose of effecting a subordination, and at the
election of Landlord or any first mortgagee with a lien on the Building or any
ground lessor with respect to this Building, this Lease shall be subject and
subordinate at all times to: (a) all ground leases and underlying leases which
may now exist or hereafter be executed affecting the Building or the land upon
which the Building is situated or both, and (b) the lien of any mortgage or deed
of trust which may now exist or hereafter be executed in any amount for which
the Building, land, ground leases or underlying leases, or Landlord's interest
or estate in any of said items is specified as security. Notwithstanding the
foregoing, Landlord shall have the right to subordinate or cause to be
subordinated any such ground leases or underlying leases or any such liens to
this Lease. In the event that any ground lease or underlying lease terminates
for any reason or any mortgage or deed of trust is foreclosed or a conveyance in
lieu of foreclosure is made for any reasons, Tenant shall, notwithstanding any
subordination, attorn to and become the Tenant of the successor in interest to
Landlord, and Tenant's right to possession of the Premises shall not be
disturbed if Tenant is not in default and so long as Tenant shall pay the rent
and observe and perform all of the provisions of this Lease, unless this Lease
is otherwise terminated pursuant to its terms, Tenant covenants and agrees to
execute and deliver, upon demand by Landlord and in the form requested by
Landlord, any additional documents evidencing the priority or subordination of
this Lease with respect to any such ground leases and underlying leases or the
lien of any such mortgage or deed of trust, Tenant hereby irrevocably appoints
Landlord as attorney-in-fact of Tenant to execute, deliver and record any such
document in the name and on behalf of Tenant.
26. ESTOPPEL CERTIFICATE.
(a) Within ten (10) days following any written request which Landlord may
take from time to time Tenant shall execute and deliver to Landlord a statement
certifying: (1) the date of commencement of this Lease; (ii) the fact that this
Lease is unmodified and in full force and effect (or, if there have been
modifications hereto, that this Lease is in full force and effect, as modified,
and stating the date and nature of such modifications); (iii) the date to which
the rental and other sums payable under this Lease have been paid; (iv) the fact
that there are no current defaults under this Lease by either Landlord or Tenant
except as specified in Tenant's statement; and (v) such other matters requested
by Landlord. Landlord and Tenant intend that any statement delivered pursuant to
this Paragraph 26 may be relied upon any mortgage, beneficiary, purchaser or
prospective purchaser of the Building or any interest therein.
(b) Tenant's failure to deliver such statement within such time shall be
conclusive upon Tenant (i) that this Lease is in full force and effect, without
modification except as may be represented by Landlord; (ii) that there are no
uncured defaults in Landlord's performance; and (iii) that no more than one (1)
month's rental has been paid in advance.
27. BUILDING PLANNING. In the event Landlord requires the Premises for use
in conjunction with another suite or for other reasons connected with the
Building planning program, upon notifying Tenant in writing, Landlord shall have
the right to move Tenant to other space in the Building of which the Premises
forms a part, at Landlord's sole cost and expense, and the terms and conditions
of the original Lease shall remain in full force and effect, save and except
that a revised Exhibit :A-2" shall become part of this Lease and shall reflect
the location of the new space and Paragraph 1 of this Lease shall be amended to
include and state all correct date as to the new space. However, if the new
space does meet with Tenant's approval, Tenant shall have the right to cancel
said Lease upon giving Landlord thirty (30) days notice within ten (10) days of
receipt of Landlord's notification.
28. RULES AND REGULATIONS. Tenant shall faithfully observe and comply with
the "Rules and Regulations", a copy of which is attached hereto and marked
Exhibit "C", and all reasonable and nondiscriminatory modifications thereof and
additions thereto from time to time put into effect by Landlord. Landlord shall
not be responsible to Tenant for the violation or non-performance by any other
Tenant or occupant of the Building of any of said Rules and Regulations.
29. CONFLICT OF LAWS. This Lease shall be governed by and construed
pursuant to the laws of the State of California.
30. SUCCESSORS AND ASSIGNS. Except as otherwise provided in this Lease, all
of the covenants, conditions and provisions of this Lease shall be binding upon
and shall inure to the benefit of the parties hereto and their respective heirs,
personal representatives, successors and assigns.
31. SURRENDER OF PREMISES. The voluntary of other surrender of this Lease
by Tenant, or a mutual cancellation thereof, shall not work as merger, and
shall, at the opinion of Landlord, operate as an assignment to it of any or all
subleases or subtenancies.
32. ATTORNEY'S FEES.
(a) Tenant shall pay to Landlord all amounts for costs (including
reasonable attorney's fees) incurred by Landlord in connection with any breach
or default by Tenant under this Lease or incurred in order to enforce or
interpret the terms or provisions of this Lease. Such amounts shall be payable
upon demand. In addition, if any action shall be instituted by either of the
parties hereto for the enforcement or interpretation of any of its rights or
remedies under this Lease, the prevailing party shall entitled to recover from
the losing party all costs incurred by the prevailing party in said action and
any appeal therefrom, including reasonable attorney's fees to be fixed by the
court therein. Said costs and attorney's fees shall be included as part of the
judgment in any such action. Further, should Landlord be made a party to any
litigation between Tenant and any third party, then Tenant shall pay all costs
and attorney's fees incurred by or imposed upon Landlord in connection with such
litigation.
33. PERFORMANCE BY TENANT; LATE CHARGES. All covenants and agreements to be
performed by Tenant under any of the terms of this Lease shall be performed at
Tenant's sole cost and expense and without any abatement of rent. If Tenant
shall fail to pay any sun of money, other than Annual Basic 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, Landlord may, without waiving or releasing Tenant
from obligation of Tenant, but shall not be obliged to make any such payment or
perform any such other act of Tenant's part to be made or performed as in this
Lease provided. All sums so paid by Landlord and all necessary incidental costs
together with interest at the lesser of twelve percent (12%) per annum or the
maximum non-usurious interest rate permissible by law, from the date of such
payment by Landlord, shall be payable to Landlord on demand. In the event Tenant
fails to pay any installment of rent value when due, said delinquent installment
shall bear interest at the rate of the lesser of twelve percent (12%) per annum
or the maximum non-usurious interest rate permissible by law, from the date such
payment was due until paid. Tenant convents to pay any such sums, and Landlord
shall have (in addition to any other right or remedy of Landlord) the same
rights and remedies in the event of the non-payment hereof by Tenant as in the
case of default by Tenant in the payment of the Annual Basic Rent. Tenant hereby
acknowledges that in addition to lose interest, the late payment by Tenant to
7
Landlord of rent or any addition rent due hereunder will cause Landlord to incur
others not contemplated in this Lease, the exact amount of which is extremely
difficult to ascertain. Such other cost include, not are not limited to,
processing, administrative and accounting costs. Accordingly, if any installment
of rent or any other sum form Tenant shall not be received by Landlord within
ten (10) days after such amount shall be due, Tenant shall also pay to Landlord
a service charge in the amount of $50 per diem. The parties hereby agree that
(i) such late charge represents a fair and reasonable estimate of the costs
Landlord will incur in processing each delinquent payment by Tenant; (ii) that
such late charge shall be paid to Landlord as liquidated damages for pursuant to
California Civil Code Section 1671 and (iii) that the payment of late charges
and the payment of interest are distinct and separate from one another in that
the payment of interest is to compensate Landlord for the use of Landlord's
money by Tenant, while the payment of late charges is to compensate Landlord for
the additional administrative expenses incurred by Landlord in handling and
processing delinquent payments.
34. MORTGAGE AND GROUND LESSOR PROTECTION. In the event of any default on
the part of Landlord, Tenant will give notice by registered or certified mail to
any beneficiary of a deed of trust or mortgage covering the Building or ground
lessor (if any) whose address shall have been furnished to Tenant, and shall
offer such beneficiary or mortgage and ground lessor a reasonable opportunity to
cure the default, including time to obtain possession of the Building by power
of sale or a judicial foreclosure, if any should prove necessary to effect a
cure.
35. DEFINITION OF LANDLORD. The term "Landlord" as used in this Lease, so
far as covenants or obligations on the part of Landlord are concerned, shall be
limited to mean and include only the owner or owners, at the time in question,
or the free of the Building. In the event of any transfer, assignment or other
conveyance or transfers of any such title or leasehold, Landlord herein named
(and in case of any subsequent transfers or conveyances, the then grantor) shall
be automatically freed and relieved from and after the date of such transfer,
assignment or conveyance of all liability as respects the performance of any
covenants or obligations on the part of Landlord contained in this Lease
thereafter to be performed and, without further agreement, the transferee of
such title shall be deemed to have assumed and agreed to observe and perform any
and all obligations of Landlord hereunder, during its ownership of the Premises,
Landlord may transfer its interests in the Building without the consent of
Tenant and such transfer or subsequent transfer shall not be deemed a violation
on Landlord's part of any of the terms and conditions of this Lease.
36. WAIVER. The waiver of Landlord of any breach of any term, covenant or
condition herein contained shall not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant or condition herein contained,
nor shall any custom or practice which may grow up between the parties in the
administration of the terms hereof be deemed a waiver, or in any way affect, the
right of Landlord to insist upon the performance by Tenant in strict accordance
with said terms. The subsequent acceptance of rent hereunder by Landlord shall
not be deemed to be a waiver of any proceeding breach by Tenant of any term,
covenant or condition of this Lease, other than the failure of Tenant to pay the
particular rent so accepted, regardless of Landlord's knowledge of such
preceding breach at the time of acceptance of such rent.
37. IDENTIFICATION OF TENANT. In more than one person executes this Lease
as Tenant, (a) each of them is jointly and severally liable for the keeping,
observing and performing of all of the terms, covenants, conditions, provisions
and agreements of this Lease to be kept, observed and performed by Tenant, and
(b) the term "Tenant" as used in this Lease shall mean and include each of them
jointly and severally and the act of notice from, or notice or refund to, or the
signature of, and one or more of the, with respect to the tenancy of this Lease,
including but not limited to, any renewal, extension, expiration, termination or
modification of this Lease, shall be binding upon each and all of the persons
executing this Lease as Tenant with the same force and effect as if each and all
of them had so acted or so given or received such notice or refund or so signed.
38. 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
the Building shall in no way affect this Lease or impose any liability on
Landlord.
39. TERMS AND HEADINGS. The words "Landlord" and "Tenant" as used herein
shall include the plural as well as the singular. Words used in any gender
include other genders. If there be more than one Tenant the obligations
hereunder imposed upon Tenant shall be joint and several. The Paragraph headings
of this Lease are not a part of this Lease and shall have no effect upon the
construction and interpretation of any part hereof.
40. EXAMINATION OF LEASE. Submission of this instrument for examination or
signature by Tenant does not constitute a reservation of or opinion for Lease,
and is not effective as a Lease or otherwise until execution by and delivery to
both Landlord and Tenant.
41. TIME. Time is of the essence with respect to the performance of every
provision of this Lease in which time or performance is a factor.
42. PRIOR AGREEMENTS: AMENDMENTS. This Lease contains all of the agreements
of the parties hereto with respect to any matter covered or mentioned in this
Lease, and no prior agreement or understanding pertaining to any such matter
shall be effective for any purpose. No provision of this Lease may be amended or
added to except by an agreement in writing signed by the parties hereto or their
respective successors in interest.
43. SEPARABILITY. Any provision of this Lease which shall prove to be
invalid, void or illegal in no way affects, impairs or invalidates any other
provision hereof, and such other provisions shall remain in full force and
effect.
44. RECORDING. Neither Landlord nor Tenant shall record this Lease nor a
short-term memorandum thereof without the consent of the other.
45. CONSENTS. Whenever the consent of either party is required hereunder
such consent shall not be unreasonably withheld.
46. LIMITATION OF LIABILITY. The obligation of Landlord under this Lease do
not constitute personal obligations of the individual partners, trustees,
directors, officers or shareholders of Landlord, and Tenant shall not seek
recourse against the individual partners, trustees, directors, officers or
shareholders of Landlord or any of their personal assets for satisfaction of any
liability in respect to this Lease.
47. EXHIBITS AND RIDERS. The exhibits and riders, if any, initiated by
Landlord and Tenant and affixed to this Lease are hereby incorporated herein and
made a part thereof.
48. SIGNS AND AUCTIONS. Tenant shall not place any sign upon Premises or
the Building or conduct any auction without Landlord's prior written consent.
49. 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 Tenant's
rights hereunder.
50. ACCORD AND SATISFACTION. No payment by Tenant or receipt by Landlord of
a lesser amount than the rent payment herein stipulated shall be deemed to be
other than one account of the rent, nor shall any endorsement or statement of
any check or any letter accompanying any check or payment as rent be deemed an
accord and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such rent or pursue any
other remedy provided in this Lease.
Tenant agrees that each of the foregoing covenants and agreements shall be
applicable to any covenant or agreement either expressly contained in this Lease
or imposed by any statue or at common law.
51. FINANCIAL STATEMENTS. At any time during the term of this Lease, Tenant
shall, upon ten (10) days prior written notice from Landlord, provide Landlord
with a current financial statement and financial statements of the two (2) years
prior to the current financial statement year. Such statement shall be prepared
in accordance with generally accepted accounting principles and, if such is the
normal practice of Tenant, shall be audited by an independent certified public
accountant.
52. DECLARATION. This Lease is subject to and Tenant agrees to be bound by
the terms and provisions of the Declaration for the Project, as the same may be
amended, and the Project Rules as therein described. Failure by Tenant to comply
with said Declaration and Project Rules shall constitute a material default
hereunder. Tenant understands that said Declaration contains provisions which,
without limitation, empower the Landlord with the right to make changes to the
common area and parking facilities of the Project and to allocate to the tenants
of the Building and other Building in the Project as share of the cost of
operating and maintaining the Project common area and facilities.
53. FORCE MAJEURE. If either party, except as otherwise herein specifically
provided, shall be delayed or hindered in or prevented from the performance of
any act required hereunder by reason of strikes, lockouts, labor troubles,
inability to procure materials, failure of power, restrictive governmental laws
or regulations, riots, insurrection, war or other reason of a like nature not he
8
fault of the party delayed in performing work or doing acts required under the
terms of this Lease, then performance of such acts shall be executed for the
period of delay and the period for the performance of any such act shall be
extended for a period equivalent to the period of such delay. In the event of
any inconsistency between this Paragraph and the Work Letter Agreement, the
provisions of the Work Letter Agreement shall prevail. The provisions of this
Paragraph shall not operate to excuse Tenant form the prompt payment of Annual
Basic Rent, additional rent or any other payments by the terms of this Lease.
IN WITNESS WHEREOF, the parties have executed this Lease the day and year
first above written.
TENANT: LANDLORD:
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxx Xxxxxxxx, Reg. V.P.
-------------------------- ------------------------------------
Xxxxxx X. Xxxxx Xxx Xxxxxxxx, Fifth & "I" Associates
Its: authorized agent
By: /s/ Xxxxx X. Xxxxx
--------------------------
Xxxxx X. Xxxxx
By: /s/ Xxxxxx X. Xxxxx
---------------------------
Its: Attorney in Fact
Dated: September 25, 1986 Dated: September 25, 1986
9
ADDENDUM TO THE LEASE
This Addendum forms a part of that certain lease between Fifth & "1" Associates,
Landlord and Xxxxxx and Xxxxx Xxxxx, Tenant dated September 18, 1986. The
pro-visions of the lease with which the provisions of the Addendum conflict or
are inconsistent.
54. ANNUAL BASIC RENT - The Annual Basic Rent as indicated in Xxxxxxxxx
--------------------
0.X of this Lease shall be the following:
87-89 Year 1 and 2 - $1.05 per square foot per month, net net net
89-90 Year 3 - $l.113 per square foot per month, net net net
90-91 Year 4 - $1.176 per square foot per month, net net net
91-92 Year 5 - $1.239 per square foot per month, net net net
92-93 Year 6 - $1.302 per square foot per month, net net net
93-94 Year 7 - $1.365 per square foot per month, net net net
94-95 Year 8 - $1.428 per square foot per month, net net net
95-96 Year 9 - $1.491 per square foot per month, net net net
96-97 Year 10 - $1.554 per square foot per month, net net net
The term of this Lease shall commence upon commencement of rent.
55. OPTION TO RENEW - Tenant is hereby granted two (2) successive options to
---------------
extend the term of this lease for two, five year periods following the
expiration of the initial ten year term by giving written notice of the exercise
of the option to the Landlord at least three (3) months and not earlier than six
(6) months prior to the expiration of the then current term of this lease or any
extension term and, further provided, that Tenant is not in default under this
extension term and that Tenant continues to occupy the premises. All provisions
of this lease shall remain in full force an effect for the extension term except
that at the time the option is exercised, the annual basic rent and any cost of
living increases shall be at the then prevailing rate for like space in the
building, provided however, that in no event shall the annual basic rent be less
than the previous years adjusted rent.
56. SIGNS - Subject to all necessary government approvals, Tenant shall have
-------
the right to install and obtain one (2) lighted sign on the buildings exterior
surface in location satisfactory to Landlord and Tenant. The sign shall consist
of the Tenant's name with the size, placement and style of lettering to be
approved in advance by Landlord, such approval not to be unreasonable withheld.
The expenses of obtaining approval, installation and maintenance of the sign,
including electricity, shall be paid by Tenant. If a sign is removed, Tenant is
responsible for having the building service restored to its original condition,
ordinary wear and tear accepted. If a sign falls into disrepair, Tenant shall
have thirty (30) days to effect repairs following Landlord's written notice to
do so. If repairs are not completed within such period, Landlord has the right
to make repairs and charge Tenant for the same.
57. JANITORIAL SERVICE - Tenant shall contract for and furnish, at his own
--------------------
expense, janitorial services necessary to maintain the premises in good, clean
and orderly condition. In calculating Tenant's share of direct expenses, as
provided in Paragraph Six of this lease, Landlord shall take into account fiat
Tenant provides his own janitorial service and shall base Tenant's share of
expenses only on the cost of maintenance and janitorial services for the parking
facility and common areas of the building. Tenant shall furnish Landlord with
the name of his janitorial service and with such additional information
regarding the identity of xxxxxxx and schedule service as Landlord may
reasonably require.
58. EXPENSES - So long as Tenant furnishes his own janitorial service, that
-----------
item of expense shall be disregarded in calculating Tenant's portion of the
direct expenses referred to in Paragraph Six of the foregoing lease. The
remainder of the direct expenses (including common area janitorial) shall be
calculated by Landlord monthly and Tenant shall receive a statement, therefore,
showing the total amount and Tenant's percentage thereof. Tenant shall reimburse
Landlord for its percentage of the direct expenses within fifteen (15) days of
receiving the statement of direct expenses. This monthly reimbursement provision
is designed to make this lease what is commonly referred as "triple net" so that
the annual basic rent and adjusted annual basic rent shal1 be absolutely net to
the Landlord.
59. PARKING - Tenant shall be allowed seven (7) non-exclusive parking
---------
spaces in common with other tenants in the attached parking garage. Clientele of
Tenant may park in the attached parking facility at prevailing hourly rates.
Parking privileges in the buildings parking facility shall be on a
month-to-month basis over the term of this agreement. The parking facility shall
he used in common specifically allocated by Landlord to Tenant. Landlord shall
be allowed to specifically allocate the spaces to tenants. Landlord shall allow
transient parking so that, in good faith, believes the parking facilities are
not overcrowded, Landlord may allow monthly parking at a rate greater than one
per leased 400/square foot and may allow non-tenants to rent parking spaces. The
monthly rental rate for parking privileges shall be initially $60.00 per month
per stall and shall be subject to building rent increases. There may be a
differential between the rate charged for privileges to use facility in common
with others and privileges regarding specially allocated space. The rent for the
parking spaces shall commence upon occupancy by Tenant.
60. Landlord shall not lease space to any additional restaurants, that for
the majority of their menu items, would compete with tenant's menu.
TENANT: LANDLORD:
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxx Xxxxxxxx, Reg. V.P.
--------------------------- ------------------------------------
Xxxxxx X. Xxxxx Xxx Xxxxxxxx, Fifth & "I" Associates
Its: authorized agent
By: /s/ Xxxxx X. Xxxxx
--------------------------
Xxxxx X. Xxxxx
By: /s/ Xxxxxx X. Xxxxx
---------------------------
Its: Attorney in Fact
FIRST AMENDMENT TO LEASE
This Amendment forms a part of that certain Standard Office Lease dated
September 19, 1986, between Fifth & I Associates, Landlord, and Lucy and Xxxx
Xxxxxxxx, Tenant. The provisions of this Amendment supercede and control printed
provisions of the Lease with which the provisions of this Amendment conflict or
are inconsistent.
RENT
----
The annual basic rent as referenced in paragraph 1 and further in addendum
paragraph 55 of the lease is amended to read as follows:
01/01/89 - 02/15/89 Rental abatement
02/16/89 - 05/31/89 $1.07 per square foot per month, net net net
06/01/89 - 12/31/89 $1.133 per square foot per month, net net net
01/01/90 - 01/31/90 Rental abatement
02/01/90 - 05/31/90 $1.133 per square foot per month, net net net
06/01/90 - 05/31/91 $1.196 per square foot per month, net net net
06/01/91 - 05/31/92 $1.259 per square foot per month, net net net
06/01/92 - 05/31/93 $1.322 per square foot per month, net net net
06/01/93 - 05/31/94 $1.385 per square foot per month, net net net
06/01/94 - 05/31/95 $1.448 per square foot per month, net net net
06/01/95 - 05/31/96 $1.511 per square foot per month, net net net
06/01/96 - 05/31/97 $1.574 per square foot per month, net net net
Except as herein modified, all other terms and conditions of the Lease shall
remain unchanged and in full force and effect.
TENANT: LANDLORD:
Xxxx and Xxxx Xxxxxxxx The Xxxxxx Company as Manager
for Fifth & I Associates
By: /s/ Xxxx and Xxxx Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------- -----------------------------
Xxxx and Xxxx Xxxxxxxx Xxxxxx X. Xxxxxxx
Its: _____________________ Its: Director of Asset Management
ASSIGNMENT AND ASSUMPTION OF LEASE AND CONSENT
TO ASSIGNMENT OF LEASE
XXXXXX AND XXXXX XXXXX ("Assignors"), for good and valuable consideration hereby
assigns to LUCY AND XXXX XXXXXXXX ("Assignees"), interest in and to that Lease
made by and between FIFTH & I ASSOCIATES ("Lessor") and Assignors, dated
September 18, 1986, for those premises located at 000 X Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxx 00000 consisting of 2.412 square feet.
Assignors represent and warrant that said lease is in full force and effect and
that there are no defaults thereunder.
Assignors further assign all of their interest to the security deposit
applicable to said Lease in the sum of $ 2,532.60 Assignors agree that Lessor
shall continue to have full recourse to said security deposit in the event of
any default in Assignees' performance of the terms and conditions of the Lease.
The undersigned, LUCY AND XXXX XXXXXXXX hereby expressly assume and agree to
keep, perform and fulfill all the terms, conditions, covenants and obligations
required to be kept, performed and fulfilled by Lessee pursuant to the Lease,
including, but not limited to the making of a all payments due to or payable on
behalf of Lessor under the Lease as hereinabove made reference to.
This assignment shall be effective: August 4, 1988
----------------
ASSIGNOR: XXXXXX AND XXXXX XXXXX
By: /s/ Xxxxxx Xxxxx
-----------------------
Xxxxxx Xxxxx
By: /s/ Xxxxx Xxxxx
----------------------
Xxxxx Xxxxx
By: /s/ Xxxxxx Xxxxx
-----------------------
Attorney-in-fact
ASSIGNEE: LUCY AND XXXX XXXXXXXX
By: /s/ Xxxx Xxxxxxxx
------------------------
Xxxx Xxxxxxxx
By: /s/ Xxxx Xxxxxxxx
------------------------
Xxxx Xxxxxxxx
PAGE A
CONSENT TO ASSIGNMENT
FIFTH & I ASSOCIATES, as Lessor under that Lease dated September 18, 1986, does
hereby consent to the assignment between XXXXXX AND XXXXX XXXXX ("Assignors")
and LUCY AND XXXX XXXXXXXX ("Assignees") of Assignors' interest under said Lease
to Assignee as outlined on Page A.
This consent shall only be effective upon Assignees' acceptance of the Lease as
to its form and substance and satisfaction of Lessor's claims upon Assignors in
escrow #33195 at California Escrow Systems located at 0000 Xxxxxx Xxx,
Xxxxxxxxxx, Xxxxxxxxxx 00000.
This consent is not and shall not be a waiver of the requirement of Lessor's
prior consent to any future assignment or subletting.
Lessor: FIFTH & I ASSOCIATES
By:/s/ Xxxxxx Afull
---------------------
Xxxxxx Afull
Its: Authorized Agent
PAGE B
AMENDMENT TO LEASE
------------------
THIS SECOND AMENDMENT TO LEASE ("Amendment") is made and entered into as of
July 9, 1992, by and between Fifth & I Associates ("Landlord"), and Lucy and
Xxxx Xxxxxxxx, ("Tenant").
RECITALS:
---------
A. Landlord and Tenant entered into that Standard Form Lease (between Fifth
& I Associates and Lucy and Xxxx Xxxxxxxx) dated as of September 18, 1986,
concerning certain premises ("Premises") located at 000 X Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxx and more particularly described in the Lease.
B. Landlord and Tenant desire to modify the Lease as set forth in this
Amendment, which modifications shall be deemed effective as of the date of this
Amendment as indicated above.
AGREEMENT:
---------
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby amend
the Lease and agree as follows:
1. Defined Terms. All capitalized terms used and not otherwise defined in
--------------
this Amendment, but defined in the Lease, shall have the same meaning in this
Amendment as in the Lease.
2. Modifications. Landlord and Tenant hereby agree that the Lease shall be
--------------
modified and/or supplemented as follows:
Provided Tenant is not in default of the terms and conditions of this
lease, and further provided Tenant has the written authorization from the
proper governmental authority(s), Tenant shall have the right to place
concrete patio tables outside the front entrance to the premises, the
number an location of the tables to be specifically as shown on the
attached Exhibit A "Patio Area" under the following conditions.
Tenant shall at all times maintain the Patio Area in a clean and safe
manner and shall be solely responsible for the repair and maintenance of
the tables and the exterior portion of the building located in the Patio
Area. In the event Tenant has not properly maintained the tables and/or
Patio Area in manner satisfactory to Landlord, (1) Landlord shall have the
right, but not obligation, to repair or maintain the tables and Patio Area
and to charge Tenant for the costs, and (2) this Second Amendment to Lease
shall become null and void immediately upon written notice by Landlord to
Tenant with no liability whatsoever to Landlord.
Prior to the installation of the tables, Tenant shall provide Landlord with
written evidence of insurance regarding the Patio Area in accordance with
the Lease. Further, Tenant agrees to defend, indemnify and hold harmless
Landlord, its agents, successors in interest, officers, and employees for
all claims, actions, liabilities and proceedings arising from or in
connection with Tenant's use of the Patio Area or the conduct of its
business or from any activity, work or thing done, permitted or suffered by
Tenant, its agents contractors, employees or invitees in on or around the
Patio Area. Tenant agrees that Landlord and its agents and employees shall
not be liable to Tenant or other person claiming under Tenant for any
damage to the tables and Patio Area.
3. Miscellaneous.
-------------
(a) Effect of Amendments. Except to the extent the Lease is
----------------------
modified by this Amendment, the remaining terms and provisions of the Lease
shall remain unmodified and in full force and effect. In the event of conflict
between the terms of this Lease and the terms of this Amendment, the terms of
this Amendment t shall prevail.
(b) Entire Agreement. This Amendment embodies the entire
-----------------
understanding between Landlord and Tenant with respect to its subject matter and
can be changed only by an instrument in writing signed by Landlord and Tenant.
(c) Counterparts. This Amendment may be executed in counterparts,
------------
each of which shall be deemed an original, but all of which, together, shall
constitute one in the same Amendment.
(d) Corporate and Partnership Authority. If Tenant is a
--------------------------------------
corporation or partnership, or is comprised of either or both of them, each
individual executing this Amendment for the corporation or partnership
represents that he or she is duly authorized to execute and deliver this
Amendment for the corporation or partnership and that this Amendment is binding
upon the corporation or partnership in accordance with its terms.
(e) Attorney's Fees. The provisions of the Lease respecting
----------------
payment of attorney's fees shall also apply to this Amendment.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date and
year first set forth above.
"LANDLORD" The Xxxxxx Company as managers for
Fifth & I Associates
By:/s/ Xxx Xxxxxxx
--------------------
Xxx Xxxxxxx
Its: Vice-President
"TENANT" Lucy and Xxxx Xxxxxxxx
By:/s/ Xxxx Xxxxxxxx
----------------------
Xxxx Xxxxxxxx
Its: Owner
By: /s/ Xxxx Xxxxxxxx
------------------------
Xxxx Xxxxxxxx
Its: Owner
THIRD AMENDMENT TO LEASE
THIS THIRD AMENDMENT TO LEASE ("Amendment") is made and entered into as of
November 27, 1995, by and between FIFTH & I ASSOCIATES ("Landlord") and LUCY AND
XXXX CARAPEIT ("Tenant").
RECITALS
A. Landlord and Tenant entered into that certain Standard Form Lease
dated as of September 18, 1986, assigned on August 4,1988, and amended by the
First Amendment to Lease, and Second Amendment to Lease dated July 9, 1992,
concerning certain premises ("Premises") located at 000 X Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxx, and more particularly described in the Lease.
B. Landlord and Tenant desire to modify the Lease as set forth in this
Amendment, which modifications shall be deemed effective as of the date of this
Amendment as indicated above.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby amend
the Lease and agree as follows:
1. DEFINED TERMS. All capitalized terms used and not otherwise defined in
---------------
this Amendment, but defined in the Lease, shall have the same meaning in this
Amendment as in the Lease.
2. MODIFICATIONS. Landlord and Tenant hereby agree that the Lease shall be
--------------
modified and/or supplemented as follows:
a) Direct Expenses. Effective September 1, 1995, through May 31, 1997
----------------
(the expiration of the lease), the following percentages shall be deducted
from the referenced line item expense category for purposes of calculated
Tenant's prorata share of Direct Expenses.
(1) Property Management Salaries: 40%
(2) Repair and Maintenance Salaries: 40%
(3) Janitorial: 100%
(4) HVAC Service Contract: 80%
(5) Elevator Service Contract: 100%
(6) Interior Plants: 100%
(7) Security Services: 40%
(8) Maintenance Supplies: 50%
(9) Common Area Repair and Maintenance: 100%
(10) Interior Maintenance: 100%
(11) Miscellaneous Expenses: 100%
(12) Electricity/Gas: 50%
(13) Water & Sewer: 50%
(14) Property Management Fees: 50%
(15) Insurance: 50%
(16) Property Taxes: 50%
(17) Capitalized Expenditures: 100%
Tenant acknowledges that Landlord is in no way obligated to
provide the above deductions and that they are provided solely for the
purpose of financial assistance to Tenant by Landlord. Landlord shall
not be obligated to provide these, or any other deductions, during any
extension of this Lease.
b) Landlord's Name. Landlord's name shall be amended to Fifth & I
-----------------
Associates, a California Limited Partnership.
1
c) Landlord's Address. Landlord's address for rent and notices shall be
--------------------
amended as follows:
(1) For Rent: Fifth & I Associates, c/o SARES-REGIS Group, 0000 Xxxxx
Xxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxxxx 00000
(2) For Notices: Fifth & I Associates, c/o SARES-REGIS Group, 0000
Xxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxxxx 00000
(3) Copy To: Fifth & I Associates, c/o SARES-REGIS Group,
(4) 00000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxx 00000
3. MISCELLANEOUS.
-------------
(a) Effect of Amendments. Except to the extent the Lease is modified by
----------------------
this Amendment, the remaining terms and provisions of the Lease shall remain
unmodified and in full force and effect. In the event of conflict between the
terms of the Lease and the terms of this Amendment, the terms of this Amendment
shall prevail.
(b) Entire Agreement. This Amendment embodies the entire understanding
------------------
between Landlord and Tenant with respect to its subject matter and can be
changed only by an instrument in writing signed by Landlord and Tenant.
(c) Counterparts. This Amendment may be executed in counterparts, each of
-------------
which shall be deemed an original, but all of which, together, shall constitute
one in the same Amendment.
(d) Corporate and Partnership Authority. If Tenant is a corporation or
----------------------------------------
partnership, or is comprised of either or both of them, each individual
executing this Amendment for the corporation or partnership represents that he
or she is duly authorized to execute and deliver this Amendment for the
corporation or partnership and that this Amendment is binding upon the
corporation or partnership in accordance with its terms.
(e) Attorney's Fees. The provisions of the Lease respecting payment of
-----------------
attorney's fees shall also apply to this Amendment.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
and year first set forth above.
LANDLORD: SARES-REGIS Group of Northern California as Managers for:
FIFTH & I ASSOCIATES
A California Limited Partnership
By: /s/ Xxxxx Xxxxxxx
------------------------
Xxxxx Xxxxxxx
Its: Vice-President/Regional Manager
Date: Xxxxx 00, 0000
XXXXXX: LUCY AND XXXX CARAPEIT
By: /s/ Xxxx Carapeit
-------------------------
Xxxx Carapeit
Its:________________
Date: March 14, 1996
By: /s/ Lucy Carapeit
------------------------
Lucy Carapeit
Its: Owner
Date: March 14, 1996
2
TENANT ESTOPPEL CERTIFICATE
---------------------------
The undersigned, Sacramento Corporate Center, L.P., a Delaware Limited
Partnership ("Landlord"), with a mailing address c/o Continental Asset
Management, Inc., 000 X Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxxxx 00000, and
Lucy and Xxxx Xxxxxxxx, ("Tenant"), hereby certify as follows:
1. Attached hereto is a true, correct and complete copy of that certain lease
dated September 18, 1986 between Landlord's predecessor-in-interest, Fifth
& I Associates, and Tenant's predecessor-in-interest, Xxxxxx and Xxxxx
Xxxxx, (the "Lease"), which demises premises located 000 X Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxx (the "Premises").
2. The Lease is now in full force and effect and has not been amended,
modified or supplemented, except as follows: Consent to Assignment;
Assignment and Assumption of Lease and Consent to Assignment Lease
effective August 4, 1988; First Amendment to Lease; Second Amendment to
Lease dated July 9, 1992; Third Amendment to Lease dated November 27, 1995;
and the modifications confirmed by this estoppel certificate.
3. Tenant exercised one (1) Option to Renew the Lease for a period of sixty
(60) months ("Renewal Period").
4. The Term of the Renewal Period commenced on June 1, 1997.
5. The Term of the Renewal Period shall expire on May 31, 2002.
6. Tenant has accepted and is now in possession of the Premises.
7. The amount of fixed monthly basic rent for the Renewal Period is Three
Thousand Nine Hundred Thirty-Seven and 04/100 Dollars ($3,937.04).
8. The amount of security deposit is $2,532.60.
9. Tenant is paying the full lease rental, which has been paid in full through
April 30, 1998 as of the date hereof. An invoice for maintenance work in
the premises in the amount of $671.13 and dated April 1,1998 is still
outstanding as of the date hereof.
10. All work required to be performed by Landlord under the Lease has been
completed and furnished in accordance with the provisions of the Lease.
Tenant has accepted and taken possession of the Premises and is in
occupancy thereof; and Tenant is not aware of any defects in the Premises
or in the building of which the Premises are a part.
11. Landlord has satisfied all commitments made to induce Tenant to enter into
the Lease; Landlord is not in any respect in default in the performance of
the terms and provisions of the Lease, and Tenant has no defense as to its
obligations under the Lease and claims no offset or counterclaim against
Landlord.
12. Tenant has no right to any concession (rental or otherwise) or similar
compensation in connection with renting the space it occupies except as
provided in the Lease. All provisions of the Lease and the amendments
thereto referred to above are hereby ratified.
13. Tenant does not have any right or option to renew or extend the term of the
Lease, to lease other space within the building of which the Premises are a
part, nor any option, right of first or last refusal, or other right to
purchase all or any part of the property of which the Premises are a part,
except as follows: One (1) Five (5) year Option to Renew at the then
prevailing rate for like space in the building, however, not less than the
annual basic rent for the previous years adjusted rent.
The foregoing certification is made with the knowledge that Landlord and
Landlord's lender are relying upon the representations herein made as true
statements of the current Lease between Landlord and Tenant.
IN WITNESS THEREOF, this certificate has been executed and delivered by the
authorized officers of the undersigned as of May 5, 1998.
---------------
TENANT: LUCY AND XXXX CARAPEIT
By: /s/ Xxxx Carapeit
-------------------------
Xxxx Carapeit
Date: May 5, 1998
By: /s/ Lucy Carapeit
-------------------------
Lucy Carapeit
Date: May 5, 0000
XXXXXX XXXXXXXXX TO LEASE
AND
CONSENT TO ASSIGNMENT OF LEASE
THIS FOURTH AMENDMENT TO LEASE AND CONSENT TO ASSIGNMENT OF LEASE
("Amendment") is made and entered into as of March 9, 2001, by and among NNN
SACRAMENTO CORPORATE CENTER, LLC, a Virginia Limited Liability Company,
successor-in-interest to SACRAMENTO CORPORATE CENTER, L.P., a Delaware Limited
Partnership, successor-in-interest to Fifth & I Associates ("Landlord), LUCY AND
XXXX CARAPEIT, as individuals ("Assignor") and XXXXXXX XXXXXXXXX, an individual
("Assignee").
RECITALS
A. Landlord and Assignor's predecessor, Xxxxxx and Xxxxx Xxxxx, entered
into that certain Standard Form Lease dated as of September 18, 1986, which was
assigned to Assignor on August 4, 1988, and amended by the First Amendment to
Lease, Second Amendment to Lease dated July 9, 1992, Third Amendment to Lease
dated November 27, 1995, Tenant Estoppel Certificate dated May 5, 1998, Lease
Termination Agreement dated July 24, 2000, and Cancellation of Lease Termination
Agreement dated August 31, 2000, concerning certain premises ("Promises")
located at 000 X Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxx, and more particularly described
in the Lease.
B. Landlord and Assignor desire to modify the Lease as set forth in this
Amendment, which modifications shall be deemed effective as of the date of this
Amendment as indicated above.
AGREEMENT
NOW, THEREFORF, in consideration of the mutual covenants and agreements
herein contained and for other good and valuable consideration, the receipt end
sufficiency of which are hereby acknowledged, the parties hereto hereby amend
the Lease and agree as follows:
1. Defined Terms. All capitalized terms used and not otherwise defined in
---------------
this Amendment, but defined in the Lease, shall have the same meaning in this
Amendment as in the Lease.
2. Modifications. Landlord and Assignor hereby agree that the Lease shall
--------------
be modified and/or supplemented as follows:
a) Assignment: Assignor hereby desires Landlord's consent to
----------
Assignor's agreement to Assignee of all Assignor's right, title and
interest in the Lease.
b) Assignor's Covenants. Assignor hereby agrees through the expiration
---------------------
of the initial lease term, which is May 31, 2002:
(1) that it shall not be released from its obligations under the
Lease, including all monetary obligations, if Assignee fails to
perform them;
(2) to promptly cure and default curable by Assignee under the
Lease, provided the cure may reasonably be accomplished by Assignor
without taking possession of the Premises;
(3) that it is, by a separate agreement ("Assignment Agreement")
with Assignee, assigning to Assignee all of Assignor's right, title
and interest in and obligations under the Lease, including the
security deposit; and
(4) that it has not failed to disclose to Landlord any
information, which, if known by Landlord, might provide grounds for
Landlord to reasonably withhold its consent to the assignment.
Effective May, 2002, Assignor will surrender all rights and
interests under the Lease, including possession, and shall be released
from all obligations under said Lease.
1
c) Assignee's Covenants. Assignee hereby agrees:
----------------------
(1) that it has accepted the assignment made under the Assignment
Agreement;
(2) to perform and be bound by all of the terms and conditions of the
Lease and any amendments thereto as though Assignee was the original Lessee
under the Lease;
(3) that its address for receipt of notices under the Lease is
Xx. Xxxxxxx Xxxxxxxxx
dba Lucy's Place
000 X Xxxxxx
Xxxxxxxxxx, XX 00000
(4) that Landlord has not made any express or implied oral or written
representation or promise that:
(i) future assignments will be approved;
(ii) Assignee will enjoy financial success in operating any
business on the Premises; or
(iii) It will grant an extension of the Term or enter into any
other modification of the Lease, except as stated in this
Amendment.
(5) That it has been provided with a copy of the Lease, together will
all amendments thereto, if any, and that it has read the Lease and all
amendments and fully understands its obligations as Lessee under the Lease.
d) Security Deposit. Upon execution of this Amendment and the close of
------------------
escrow between Assignor and Assignee, Assignee will provide to Landlord a
security deposit in the amount of Eleven Thousand Eight Hundred Eleven and
12/100 Dollars ($11,811.12), which shall be paid as follows:
(1) Assignor hereby assigns its security deposit in the amount of Two
Thousand Five Hundred Thirty-Two and 60/100 Dollars ($2,532.60) to
Assignee, which Landlord shall apply to Assignee's required security
deposit;
(2) Assignee will provide Landlord a check in the amount of Nine
Thousand Two Hundred Seventy-Eight and 52/100 Dollars ($9,278.52) for the
balance of the total required security deposit.
Provided Assignee is not in default upon the expiration of the lease
term and elects to exercise its Option to Extend as defined in Subparagraph
(f) below, Landlord shall return Seven Thousand Eight Hundred Seventy-Four
and 08/100 Dollars ($7,874.08) of the security deposit to Assignee. The
remaining security deposit of Three Thousand Nine Hundred Thirty-Seven and
04/100 Dollars ($3,937.04) shall be retained as security through the
Option.
Should Assignee elect not to exercise its Option to Extend as defined
in Subparagraph (f) below, the security deposit shall he returned In
accordance with the terms of Paragraph 7 of the Lease.
e) Lease Extension. Currently with the execution of this Amendment,
-----------------
Assignee desires to extend the term of the Lease. Accordingly, the term of the
Lease shall be extended ("Extension Period") for a period of forty-eight (48)
months, commencing on June 1, 2003 and ending on March 31, 2006.
The Monthly Basic Rent for the Extension Period shall be as follows:
Dates: Monthly Basic Rent
------ --------------------
June 1, 2002 - May 31, 2003 $4,172.76/month
June 1, 2003 - May 31, 2004 $4,413.96/month
June 1, 2004 - May 31, 2005 $4,679.28/month
June 2, 2005 - May 31, 2006 $4,968.72/month
f) Option to Extend. All options provided to Assignor in the Lease are
--------------------
hereby terminated. Assignee shall be provided one (1) five (5)-year Option to
Extend in accordance with the attached Option to Extend at Market Rental Rate.
2
g) Landlord's Consent. For valuable consideration, including the
--------------------
agreements, acknowledges and representations of Assignor and Assignee set forth
above, Landlord hereby consents to Assignor's assignment to Assignee of all of
Assignor's right, title and interest in the Lease upon and subject to the
foregoing terms and conditions.
3. Miscellaneous.
--------------
a) Effect of Amendments. Except to the extend the Lease is modified by this
---------------------
Amendment, the remaining terms and provisions of the Lease shall remain
unmodified and in full force and effect. In the event of conflict between the
terms of the Lease and the terms of this Amendment, the terms of this Amendment
shall prevail.
b) Entire Agreement. This agreement embodies the entire understanding
------------------
between Landlord and Assignee with respect to its subject matter and can be
changed only by instrument in writing signed by Landlord and Assignee.
c) Counterparts. This Amendment may be executed in counterparts, each of
------------
which shall be deemed an original, but all of which, together, shall constitute
on in the same Amendment.
d) Corporate and Partnership Authority. If Assignee is a corporation or
---------------------------------------
partnership, or is compired of either or both of them, each individual executing
this Amendment for the corporation or partnership represents that he or she is
duly authorized to execute and deliver this Amendment for the corporation or
partnership and that this Amendment is binding upon the corporation or
partnership in accordance with its terms.
e) Attorney's Fees. The provisions of the Lease respecting payment of
------------------
attorney's fees shall also apply to this Amendment.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
and year first set forth above.
**SEE ADDENDUM NO. 2 DATED 3/14/01**
LANDLORD: NNN Sacramento Corporate Center, LLC,
A Virginia Limited Liability Company
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Xxxxxxx X. Xxxxxxxx
Its: President Date: March 21, 2001
ASSIGNOR: Lucy and Xxxx Xxxxxxxx
By: /s/ Xxxx Xxxxxxxx
------------------------
Xxxx Xxxxxxxx
Its:________________ Date: March 14, 2001
By: /s/ Xxxx Xxxxxxxx
------------------------
Xxxx Xxxxxxxx
Its: _______________ Date: March 14, 2001
NOT COMPLETE WITHOUT THE ATTACHED SIGNATURE
3
ASSIGNEE: Xxxxxxx Xxxxxxxxx, an Individual
By: /s/ Xxxxxxx Xxxxxxxxx
----------------------------
Xxxxxxx Xxxxxxxxx, an Individual Date: March 14, 2001
4
ADDENDUM NO.1
OPTION(S) TO EXTEND TERM OF LEASE
AND MINIMUM ANNUAL RENT DURING EXTENDED LEASE TERM(S)
1. Right to Exercise Option(s). Tenant is given the option(s) to extend
the Lease Term subject to all of the provisions contained in this Lease, except
for minimum annual rent ("Minimum Annual Rent"), for one (1) period(s) of five
(5) years each, each such period being herein referred to as an "Extended Lease
Term", following expiration of the initial Term or Extended Lease Term, as the
case may be, by giving written notice of exercise of the option ("Option
Notice") to Landlord at least six (6) months but not more than one (1) year
before the expiration of the initial Term or Extended Lease Term, as the case
may be. Notwithstanding the foregoing, if Tenant is thirty (30) days or more
delinquent in payment of rent or other amounts payable by Tenant or is otherwise
in default on the date of giving any Option Notice, such Option Notice shall, if
so elected by Landlord, be totally ineffective, or if Tenant is thirty (30) days
or more delinquent in payment of rent or other amounts payable by Tenant or is
otherwise in default on the date any Extended Lease Term is to commence, then,
if so elected by Landlord, such Extended Lease Term shall not commence and this
Lease shall expire at the end of the then existing Lease Term.
2. Minimum Annual Rent During Extended Term. Minimum Annual Rent for
the first year of any Extended Lease Term shall be established at that amount
equal to the Minimum Annual Rent based upon the -prevailing market rates for
similar commercial space determined as hereinafter provided. In no event shall
the Minimum Annual Rent be less than the last month of the expiring lease term,
or extended lease term. Thereafter, Minimum Annual Rent shall be adjusted
annually as of the commencement of each subsequent Lease Year in the Extended
Lease Term as provided as follows:
MINIMUM ANNUAL RENT ADJUSTMENT. The Minimum Annual Rent shall be
increased at the commencement of the first fill month beginning on or
after the one year anniversary of the Rental. Commencement Date of the
Option Term and each one year anniversary thereafter (each such date
is hereinafter referred to as an "Adjustment Date") by the greater of
(a) Three percent (3%) of the Minimum --- Annual Rent payable for the
immediately preceding lease year or (b) by the percentage increase in
the United States Department of Labor, Bureau of Labor Statistics,
Consumer Price Index, All Urban Consumers (all items, 1982-84 equals
100) published for the area in which the Premises are situated or
which is otherwise closest to the Premises ("Index") for the calendar
month three (3) months prior to the calendar month during which the
subject Adjustment Date occurs, as compared to the Index for the
calendar month which is fifteen (15) months prior to the calendar
month during which the subject Adjustment Date occurs. By way of
illustration only, if the Rent Commencement Date is February 20, 1993,
the first Adjustment Date will be March 1, 1994 and the Minimum Annual
Rent commencing March 1, 1994 will be the Minimum Annual Rent payable
under Section 4.1 prior to March 1,1994 increased (ii) the percentage
increase in the Index between December1993 and December 1994. Should
the Bureau of Labor Statistics discontinue the publication of the
Index, or publish the same less frequently, or alter the same in some
other manner, then Landlord shall adopt a substitute Index or
substitute procedure which reasonably reflects and monitors consumer
prices.
Landlord will determine Minimum Annual Rent for the first year of any
Extended Lease Term by comparing the Rate then being charged to new tenants of
commercial space which is located within the vicinity of the Leased Premises,
including consideration of recent rentals of space within the Building, which
space is of similar size, quality, design and age with similar tenant
improvements as were furnished by Landlord (the "Market Rate"). Neither party to
the Lease shall have the right to have a court or other third party set the
Market Rate for the leased premises. Landlord shall not earlier than Six (6)
months and not later than 45 days prior to the end of the then existing Lease
Term, advise Tenant in writing of Landlord's determination as to the applicable
Market Rate for similar space which shall then, subject to the following
paragraph, be the Minimum Annual Rent for the first year of such Extended Term.
Within twenty (20) days of such notice from Landlord, if Tenant should
reject Landlord's determination of Market Rate, Tenant shall so advise Landlord
in writing, and the Lease shall terminate at the end of the then existing Lease
Term. Absent such notice, Minimum Annual Rent shall increase at the commencement
of such Extended Term as proposed by Landlord.
TENANT'S Initials: M. SH. LANDLORD'S Initials: A.W.T.
ADDENDUM NO. 2 TO
-----------------
FOURTH AMENDMENT TO LEASE
AND
CONSENT TO ASSIGNMENT OF LEASE
This ADDENDUM, dated March 14, 2001, incorporates additional terms of the FOURTH
AMENDMENT TO LEASE AND CONSENT TO ASSIGNMENT OF LEASE, dated March 9, 2001, as
required by NNN Sacramento Corporate Center, LLC, A Virginia Limited Liability
Company.
4. Assignment and Assumption. Assignor assigns and transfers to Assignee
--------------------------
all rights, title and interest of Assignor in the Lease, and Assignee
accepts said assignment and agrees to fully and finally perform,
discharge arid satisfy, as a direct obligation to Lessor, each and
every term, covenant and conditional to be performed by the Assignor
(Lessee) under the Lease. Lessor consents to the assignment on the
terms and conditions as described in the above referenced FOURTH
AMENDMENT as supplemented herein.
5. CAM Reconciliation. Assignee agrees to pay Lessor the amount required
-------------------
to reconcile the impound account for common area maintenance, taxes,
and insurance upon Lessor's presentation of the actual expense
information. Lessee agrees to pay Assignee for its prorata share of
this amount for reconciliation. Lessor accepts the obligation to
determine both the Lessee's and Assignee's prorata shares.
6. Warranties of Assignee. Assignee makes the following representations
-------------------------
and warranties, each of which representation and warranties shall
survive the assignment of the Lease, is material and is being relied
upon by Assignor in entering into this Agreement and Lessor in
consenting to the assignment of the Lease, and is true in all respects
as of the date of this agreement and shall be true in all respects on
the Effective Date:
a. Assignee has undertaken a complete and independent evaluation of
the risks inherent in the execution of this Agreement, the
acceptance of the assignment of the Lease set forth in this
Agreement, the physical condition of the Leased Premises, and the
operation of the Leased Premises for the use permitted by the
Lease. Based solely upon the independent evaluation, Assignee
elects to enter into this Agreement, assume the Lease as set
forth in this Agreement, and ratify the Lease.
b. In entering into this Agreement and assuming the Lease, Assignee
is relying upon no statement, fact, promise, or representation
(whether express or implied, written or oral) of Lessor, or
Lessee not specifically set forth in the lease or this Agreement.
Initials: X.XX., A.W.T.
7. Warranties of Assignor. Assignor makes the following representations
-------------------------
and warranties, each of which representation and warranties shall
survive the assignment of the Lease, is material and is being relied
upon by Assignee in entering into this Agreement and Lessor in
consenting to the assignment of the Lease, and is true in all respects
as of the date of this Agreement and shall be true in all respects on
the Effective Date;
a. To the best knowledge of Assignor, the Lease is in full force and
effect and is ratified by Assignor.
b. The Lease constitutes the entire Agreement between Lessor and
Assignor with respect to the Leased Premises, has not been
assigned, supplemented or modified in any manner whatsoever, and
no arrangements, agreement or understandings exist between Lessor
and Assignor with respect to the Leased Premises, or either of
them, except as specifically set forth in the Lease.
c. All terms, covenants and conditions to be performed, discharged
and satisfied by Lessor have been fully performed, discharged
satisfied, including, without limitation, the completion of all
improvements required to be completed by Lessor under the Lease,
and all required contributions by Lessor to Assignor have been
received. The term of the Lease commenced on or about September
18, 1986 and expires on May 31, 2006 (as extended by the FOURTH
AMENDMENT), unless sooner terminated in accordance with the terms
of the Lease. The current minimum rent due under the Lease is
Three Thousand Nine Hundred Thirty-Seven and 04/100 ($3,937.04)
per month.
d. To the best knowledge of Assignor, there is no existing defenses
or offsets which Assignor has against the enforcement of the
Lease by Landlord and there exist no events which would
constitute a basis for any such defenses or offsets upon the
lapse of time or giving of notice, or both.
8. Assignment of Security Deposit. Assignor releases all claims to the
---------------------------------
security deposit referred to in Section 2d of the FOURTH AMENDMENT TO
LEASE, and Assignee agrees the same shall be held by Landlord as a
security deposit for Assignee.
9. Effect of Amendments. In the event of conflict between the terms of
------------------------
the Lease, including Amendments, and the terms of this Addendum, the
terms of this Addendum shall prevail.
Initials: X.XX., A.W.T.
IN WITNESS WHEREOF, the parties have executed this Addendum as of the date and
year first set forth above.
LANDLORD: NNN Sacramento Corporate Center, LLC,
A Virginia Limited Liability Company
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Xxxxxxx X. Xxxxxxxx
Its: President Date: March 21, 2001
ASSIGNOR: Lucy and Xxxx Xxxxxxxx
By: /s/ Xxxx Xxxxxxxx
------------------------
Xxxx Xxxxxxxx Date: March 14, 2001
By: /s/ Xxxx Xxxxxxxx
-------------------------
Xxxx Xxxxxxxx Date: March 14, 2001
ASSIGNEE: Xxxxxxx Xxxxxxxxx, an Individual
By: /s/ Xxxxxxx Xxxxxxxxx
----------------------------
Xxxxxxx Xxxxxxxxx Date: March 14, 2001
