Exhibit 10.18
OFFICE BUILDING LEASE
1. PARTIES This Lease, dated, for reference purposes only, October 11, 1993,
is made by and between The Xxxxxx and Xxx Xxxx Revocable Trust (herein
called "Landlord") and Fair, Xxxxx and Company, Incorporated (herein
called "Tenant").
2. PREMISES Landlord does hereby lease to Tenant and Tenant hereby leases
from Landlord that certain office space (herein called "Premises")
indicated on Exhibit "A" attached hereto and reference thereto made a
part hereof, said Premises being agreed, for the purposes of this Lease,
to have an area of approximately 4,007 rentable square feet and 3,506
useable square feet, being situated in Suite 124 on the first floor of
that certain Building known as Regency Center, 000 Xxxxx Xxxxx Xxxx, Xxx
Xxxxxx, XX 00000.
Said Lease is subject to the terms, covenants and conditions herein set
forth and the Tenant covenants as a material part of the consideration
for this Lease to keep and perform each and all of said terms, covenants
and conditions and that this Lease is made upon the condition of said
performance.
3. TERM The term of this Lease shall be for seven (7) years and eleven (11)
months, commencing on the 1st day of January, 1994, and ending on the
30th day of November, 2001.
4. POSSESSION See Addendum to Lease P.5, Possession.
5. A. RENT Tenant agrees to pay to Landlord as rental for the premises,
without prior notice or demand, the sum of Eight Thousand Fourteen
Dollars ($8,014.00) on or before the first day of the first full
calendar month of the term hereof and a like sum on or before the
first day of each and every successive calendar month thereafter
during the term hereof, except that the first month's rent shall be
paid upon the execution of this Lease. Rent for any period during
the term which is for less than one (1) month shall be a prorated
portion of the monthly installment herein, based upon a thirty (30)
day month. Said rental shall be paid to Landlord without deduction
or offset in lawful money of the United States of America, which
shall be legal tender at the time of payment at 000 Xxxxx Xxxxx
Xxxx, Xxxxx 000, Xxx Xxxxxx, Xxxxxxxxxx 00000, or to such other
place as Landlord may from time to time designate in writing.
B. RENT ESCALATIONS Commencing on the 11th month of this Lease
(December 1, 1994) and on each annual anniversary following, the
base rent shall be adjusted by the increase, if any, in the
Consumer Price Index of the Bureau of Labor Statistics of the U. S.
Department of Labor for All Urban Consumers, San
Francisco-Oakland-San Xxxx (1984=100), "All Items" herein referred
to as "C. P.I."
The C. P.I. increase shall be calculated as follows: The base rent
payable for the first month term of this Lease shall be multiplied
by the percentage change in the C. P.I. for the 12 months preceding
December 1, 1994 On each anniversary following, the base rent shall
be multiplied by the percentage change in the C. P.I. for the 12
months preceding. No single increase shall exceed 4% of the
previous year's rental rate and in no event shall the new monthly
rent be less than the rent payable for the month immediately
preceding the date for rent adjustment.
6. SECURITY DEPOSIT Tenant has deposited with Landlord the sum of Eight
Thousand Fourteen Dollars ($8,014.00). Said sum shall be held by Landlord
as security for the faithful performance by Tenant of all the terms,
covenants, and conditions of this Lease to be kept and performed by
Tenant during the term hereof. If Tenant defaults with respect to any
provision of this Lease including, but not limited to, the provisions
relating to the payment of rent, Landlord may (but shall not be required
to) use, 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 amount which Landlord may spend or become obligated to spend by
reason of Tenant's default to compensate Landlord for any other loss or
damage which Landlord may suffer by reason of Tenant's default. If any
portion of said deposit is so used or applied, Tenant shall, within five
(5) days after written demand therefor, deposit cash with Landlord in an
amount sufficient to restore the security deposit to its original amount
and Tenant's failure to do so shall be a material breach of this Lease.
Landlord shall not be required to keep this security deposit separate
from its general fund and Tenant shall not be entitled to interest on
such deposit. If Tenant shall fully and faithfully perform every
provision of this Lease to be performed by it, the security deposit or
any balance thereof shall be returned to Tenant (or, at Landlord's
option, to the last assignee of Tenant's interest hereunder) at the
expiration of the Lease term. In the event of termination of Landlord's
interest in this Lease, Landlord shall transfer said deposit to
Landlord's successor in interest.
7. OPERATING EXPENSE ADJUSTMENTS For the purposes of this Article, the
following terms are defined as follows:
Base Year The Base Year shall be 1994.
Comparison Year Each calendar year of the term after the Base Year.
Direct Expenses All direct costs of operation and maintenance, as
determined by standard accounting practices,
including the following costs by way of illustration,
but not be limited to: real property taxes and
assessments; rent taxes, gross receipt taxes,
(whether assessed against the Landlord or assessed
against the Tenant and collected by the Landlord, or
both); water and sewer charges; insurance premiums;
utilities; janitorial services; labor; costs incurred
in the management of the Building; air conditioning &
heating; elevator maintenance; supplies; materials;
equipment and tools; and maintenance, costs and
upkeep of all parking and common areas. ("Direct
Expenses" shall not include depreciation on the
Building of which the Premises are a part or
equipment therein, loan payments, executive salaries
or real estate broker's commissions.)
If the Direct Expenses paid or incurred by the Landlord for the
Comparison Year on account of the operation or maintenance of the
Building of which the Premises are a part are in excess of the Direct
Expenses paid or incurred for the Base Year, then the Tenant shall pay
3.9% of the increase. This percentage is that portion of the total
rentable area of the Building occupied by the Tenant hereunder. Landlord
shall endeavor to give to Tenant on or before the first day of March of
each year following the respective Comparison Year a statement of the
increase in rent payable by Tenant hereunder, but failure by Landlord to
give such statement by said date shall not constitute a waiver by
Landlord of its right to require an increase in rent. Upon receipt of the
statement for the first Comparison Year, Tenant shall pay in full the
total amount of the increase due for the first Comparison Year and, in
addition for the then current year, the amount of any such increase shall
be used as
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an estimate for said current year and this amount shall be divided into
twelve (12) equal monthly installments and Tenant shall pay to Landlord,
concurrently with the regular monthly rent payment next due following the
receipt of such statement, an amount equal to one (1) monthly installment
multiplied by the number of months from January in the calendar year in
which said statement is submitted to the month of such payment, both
months inclusive. Subsequent installments shall be payable concurrently
with the regular monthly rent payments for the balance of that calendar
year and shall continue until the next Comparison Year's statement is
rendered. If the next or any succeeding Comparison Year results in a
greater increase in Direct Expenses, then upon receipt of a statement
from Landlord, Tenant shall pay a lump sum equal to such total increase
in Direct Expenses over the Base Year, less the total of the monthly
installments to be paid for the next year, following said Comparison
Year, shall be adjusted to reflect such increase. If in any Comparison
Year the Tenant's share of Direct Expenses be less than the preceding
year, then upon receipt of Landlord's statement, any overpayment made by
Tenant on the monthly installment basis provided above shall be credited
towards the next monthly rent falling due and the estimated monthly
installments of Direct Expenses to be paid shall be adjusted to reflect
such lower Direct Expenses for the most recent Comparison Year.
Even though the term has expired and Tenant has vacated the Premises,
when the final determination is made of Tenant's share of Direct Expenses
for the year in which this Lease terminates, Tenant shall immediately pay
any increase due over the estimated expenses paid and conversely any
overpayment made in the event said expenses decrease shall be immediately
rebated by Landlord to Tenant.
Notwithstanding anything contained in this Article, the rent payable by
Tenant shall in no event be less than the rent specified in Article 5
hereinabove.
See Addendum to Lease, P. 1 , Operating Expense Adjustments.
8. USE Tenant shall use the Premises for general office purposes and shall
not use or permit the Premises to be used for any other purposes without
the prior written consent of Landlord.
General office purposes shall be defined for purposes of this Lease to
include computer rooms of any size required by Tenant.
Tenant shall not do or permit anything to be done in or about the
Premises nor bring or keep anything therein which will in any way
increase the existing rate of or affect any fire or other insurance upon
the Building or any of its contents, or cause cancellation of any
insurance policy covering said Building or any part thereof or any of its
contents. Tenant shall not do or permit anything to be done in or about
the Premises which will in any way obstruct or interfere with the rights
of other tenants or occupants of the Building on 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 or suffer
to be committed any waste in or upon the Premises.
9. COMPLIANCE WITH LAW Tenant shall not use the Premises or permit anything
to be done in or about the Premises which will in any way conflict with
any law, statute, ordinance or governmental rule or regulation now in
force or which may hereafter be enacted or promulgated. Tenant shall, at
its sole cost and expense, promptly comply with
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all laws, statutes, ordinances and governmental rules now in force or
which may hereafter be in force, and with the requirements of any board
of fire insurance underwriters or other similar bodies now or hereafter
constituted, relating to, or affecting the condition, use or occupancy of
the Premises, excluding changes not related to or affected by Tenant's
improvements or acts. The judgment of any court of competent jurisdiction
or the admission of Tenant in any action against Tenant, whether Landlord
be a party thereto or not, that Tenant has violated any law, statute,
ordinance or governmental rule, regulation or requirement, shall be
conclusive of that fact as between the Landlord and Tenant.
10. ALTERATIONS AND ADDITIONS Tenant shall not make or suffer to be made any
alterations, additions or improvements to or of the Premises or any part
thereof without the written consent of Landlord first had and obtained.
Any alterations, additions or improvements to or of said Premises
including, but not limited to, wallcovering, paneling, air conditioning
units and built-in cabinet work, but excepting movable furniture and
trade fixtures, shall on the expiration of the term become a part of the
realty and belong to the Landlord and shall be surrendered with the
Premises. In the event Landlord consents to the making of any
alterations, additions or improvements to the Premises by Tenant, the
same shall be made by Tenant at Tenant's sole cost and expense, and any
contractor or persons selected by the Tenant to make the same must first
be approved in writing by the Landlord. Such approval shall not be
unreasonably withheld. Upon the expiration or sooner termination of the
term hereof, Tenant shall, upon written demand by Landlord which shall be
given at the time Landlord approves the tenant improvement work, , at
Tenant's sole cost and expense, forthwith and with all due diligence,
remove any alterations, additions, or improvements made by Tenant,
designated by Landlord to be removed, and Tenant shall, forthwith and
with all due diligence at its sole cost and expense, repair any damage to
the Premises caused by such removal.
11. REPAIRS
A. By taking possession of the Premises, Tenant shall be deemed to
have accepted the Premises as being in good, sanitary order,
condition and repair. Tenant shall, at Tenant's sole cost and
expense, keep the Premises and every part thereof in good condition
and repair damage thereto from causes beyond the reasonable control
of Tenant with ordinary wear and tear excepted. Tenant shall upon
the expiration or sooner termination of this Lease hereof surrender
the Premises to the Landlord in good condition, ordinary wear and
tear and damage from causes beyond the reasonable control of Tenant
excepted. Except as specifically provided in an addendum, if any,
to this Lease, Landlord shall have no obligation whatsoever to
alter, remodel, improve, repair, decorate or paint the Premises or
any part thereof once the initial tenant improvements are completed
and the parties hereto affirm that Landlord has made no
representations to Tenant respecting the condition of the Premises
or the Building except as specifically herein set forth.
B. Notwithstanding the provisions of Article 11. A. hereinabove,
Landlord shall repair and maintain the structural portions of the
Building, including the basic plumbing, air conditioning, heating
and electrical systems installed or furnished by Landlord unless
such maintenance and repairs are caused in part or in whole by the
act, neglect, fault or omission of any duty by the Tenant, its
agents, servants, employees or invitees, in which case Tenant shall
pay to Landlord the reasonable cost of such maintenance and
repairs. Landlord shall not be liable for any failure to make any
such repairs or to perform any maintenance unless such failure
shall persist for an unreasonable time
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after written notice of the need of such repairs or maintenance is
given to Landlord by Tenant. Except as provided in Article 22
hereof, there shall be no abatement of rent and no liability of
Landlord by reason of any injury to or interference with Tenant's
business arising from the making of any repairs, alterations or
improvements in or to any portion of the Building or the Premises,
or in or to fixtures, appurtenances and equipment therein. Tenant
waives the right to make repairs at Landlord's expense under any
law, statute or ordinance now or hereafter in effect (including the
provisions of California Civil Code Sections 1941 and 1942 and any
successor sections or statutes of a similar nature); provided,
however, if Landlord fails to perform any repair work required of
Landlord with respect to the Premises pursuant to this Paragraph,
within thirty (30) days after Landlord receives Tenant's written
notice of the need for such repair (or such period of time in
excess of thirty (30) days as is reasonably necessary based upon
the nature of the required work), then Tenant shall be permitted to
make such repairs, using contractors reasonably approved by
Landlord, provided (i) Tenant first gives Landlord an additional
two (2) business days' prior written notice indicating that Tenant
intends to undertake such repair, and (ii) Landlord fails to
commence such repair within such two (2) business day period. If
Tenant performs any repair as permitted under this Paragraph,
Landlord agrees to reimburse Tenant for the reasonable, actual and
documented costs of such repair performed by Tenant, but without
any off-set rights against rent or any other amounts payable by
Tenant under this Lease. Any repair work done by Tenant shall be
done in accordance with the provisions of this Lease, including
without limitation, Paragraph 12, keeping the premises free from
liens.
12. LIENS Tenant shall keep the Premises and the property in which the
Premises are situated free from any liens arising out of any work
performed, materials furnished or obligations incurred by Tenant.
Landlord may require, at Landlord's sole option, that Tenant shall
provide to Landlord, at Tenant's sole cost and expense, a lien and
completion bond in an amount equal to one and one-half (1-1/2) times any
and all estimated cost of any improvements, additions or alteration in
the Premises to insure Landlord against any liability for mechanics' and
materialmen's liens and to insure completion of the work.
13. ASSIGNMENT AND SUBLETTING Tenant shall not either voluntarily or by
operation of law, assign, transfer, mortgage, pledge, or encumber this
Lease or any interest therein, and shall not sublet the said Premises or
any part thereof, or any right or privilege appurtenant thereto, or
suffer any other person (the employees, agents, servants and invitees of
Tenant excepted) to occupy or use the said Premises or any portion
thereof, without written consent of Landlord first had and obtained,
which consent shall not be unreasonably withheld; provided however, that
Landlord in the exercise of its good faith business judgment may refuse
to approve the assignment or sublease and shall promptly provide Tenant
with the reasons for its refusal. In the event Tenant desires to assign
this Lease or any interest therein or sublet all or part of the Premises,
Tenant shall give Landlord written notice thereof, which notice shall
include (i) the name of the proposed assignee, subtenant or occupant
("Transferee"), (ii) reasonable financial information regarding the
Transferee, (iii) a description of the Transferee's business to be
carried on in the Premises, and (iv) the terms of the assignment or
sublease and a description of the portion of the Premises to be affected.
Tenant shall also provide Landlord such additional information regarding
the Transferee or the proposed assignment or sublease as Landlord may
reasonably request.
Notwithstanding the foregoing, Tenant shall have the right to assign or
sublet the premises, or a portion thereof, to a wholly owned affiliated
company or subsidiary, without the
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Landlord's consent. Tenant shall be required, however, to give written
notice to Landlord in advance of such assignment or sublet and to prepare
assignment or sublet agreements on forms that are reasonably satisfactory
to Landlord. In no event shall such an assignment or sublet release
Tenant from its obligations under the terms of this Lease.
Consent to one assignment, subletting, occupation or use by any other
person shall not be deemed to a consent to any subsequent assignment,
subletting, occupation or use by another person. Any assignment or
subletting without such consent shall be void, and shall, at the option
of the Landlord, constitute a default under this Lease.
14. HOLD HARMLESS Tenant shall indemnify and hold harmless Landlord against
and from any and all claims arising from Tenant's use of Premises for the
conduct of its business or from any activity, work or other thing done,
permitted or suffered by the Tenant in or about the Building, and shall
further indemnify and hold harmless Landlord against and from any and all
claims arising from any breach or default in the performance of any
obligation on Tenant's part to be performed under the terms of this
Lease, or arising from any act or negligence of the tenant, or any
officer, agent, employee, guest or invitee of Tenant, and from and
against all cost, attorney's fees, expenses and liabilities incurred in
or about any such claim or any action or proceeding brought thereon and
in any case, action or proceeding brought against Landlord by reason of
any such claim. Tenant upon notice from Landlord shall defend the same at
Tenant's expense by counsel reasonably satisfactory to Landlord. Tenant
as a material part of the consideration to Landlord hereby assumes all
risk of damage to property or injury to persons, in, upon or about the
Premises, from any cause other than Landlord's negligence or willful act,
and Tenant hereby waives all claims in respect thereof against Landlord.
Landlord or its agents shall not be liable for any damage to property
entrusted to employees of the Building, nor for loss or damage to any
property by theft or otherwise, nor for any injury to or damage to
persons or property resulting from fire, explosion, falling plaster,
steam, gas, electricity, water or rain which may leak dampness or any
other cause whatsoever, unless caused by or due to the negligence or
willful acts of Landlord, its agents, servant or employees. Landlord or
its agents shall not be liable for interference with the light or other
incorporeal hereditaments, less of business by Tenant, nor shall Landlord
be liable for any latent defect in the premises or in the Building.
Tenant shall give prompt notice to Landlord in case of fire or accidents
in the Premises or in the Building or of defects therein or in the
fixtures or equipment.
15. SUBROGATION Landlord and Tenant hereby mutually waive their respective
rights of recovery against each other for any loss insured by fire,
extended coverage and other property insurance policies existing for the
benefit of the respective parties. Each party shall obtain any special
endorsements, if required by their insurer to evidence compliance with
the aforementioned waiver.
16. LIABILITY INSURANCE Tenant shall, at Tenant's expense, obtain and keep in
force during the term of this Lease, (1) a policy of comprehensive
general liability insurance insuring Landlord and Tenant against any
liability arising out of the ownership, use, occupancy or maintenance of
the Premises and all areas appurtenant thereto; (2) workers' compensation
insurance as may be required by law; and (3) "all risk" property
insurance on Tenant's above-standard tenant improvements (specifically
those improvements exceeding the Landlord's tenant improvement allowance
as defined in Addendum to Lease, P.4.B), personal property, equipment,
furniture and fixtures. The limit of said insurance shall not,
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however, limit the liability of the Tenant hereunder. Tenant may carry
said insurance under a blanket policy, providing, however, said insurance
by Tenant shall have a Landlord's protective liability endorsement
attached thereto. If Tenant shall fail to procure and maintain said
insurance, Landlord may, but shall not be required to, procure and
maintain same, but at the expense of Tenant. Insurance required
hereunder, shall be in companies rated A+ AAA or better in "Best's
Insurance Guide." Tenant shall deliver to Landlord prior to occupancy of
the Premises copies of policies of liability insurance required herein or
certificates evidencing the existence and amounts of such insurance with
loss payable clauses reasonably satisfactory to Landlord. No policy shall
be cancelable or subject to reduction of coverage except after ten (10)
days prior written notice to Landlord.
17. See Addendum to Lease, P. 7, Services and Utilities.
18. PROPERTY TAXES Tenant shall pay, or cause to be paid, before delinquency,
any and all taxes levied or assessed and which become payable during the
term hereof upon all Tenant's leasehold improvements, equipment,
furniture, fixtures and personal property located in the Premises; except
that which has been paid for by Landlord, and is the standard of the
Building. In the event any or all of the Tenant's leasehold improvements,
equipment, furniture, fixtures and personal property shall be assessed
and taxed with the Building, Tenant shall pay to Landlord its share of
such taxes within ten (10) days after delivery to Tenant by Landlord of a
statement in writing setting forth the amount of such taxes applicable to
Tenant's property.
19. RULES AND REGULATIONS Tenant shall faithfully observe and comply with the
reasonable rules and regulations that Landlord shall from time to time
promulgate. Landlord reserves the right from time to time to make all
reasonable modifications to said rules. The additions and modifications
to those rules shall be binding upon Tenant upon delivery of a copy of
them to Tenant. Landlord shall not be responsible for the nonperformance
of any said rules by any other tenants or occupants. The rules and
regulations shall be applied equally to all tenants occupying Regency
Center.
20. HOLDING OVER If Tenant remains in possession of the Premises or any part
thereof after the expiration of the term hereof, with the express written
consent of Landlord, such occupancy shall be a tenancy from
month-to-month at a rental in the amount of the last monthly rental, plus
all other charges payable hereunder, and upon all the terms hereof
applicable to a month-to-month tenancy.
21. ENTRY BY LANDLORD Landlord reserves and shall at any and all times have
the right to enter the Premises, inspect the same, supply janitorial
service and any other service to be provided by Landlord to Tenant
hereunder, to submit said Premises to prospective purchasers or tenants,
to post notices of non-responsibility, and to alter, improve or repair
the Premises and any portion of the Building of which the Premises are a
part that Landlord may deem necessary or desirable, without abatement of
rent and may for that purpose erect scaffolding and other necessary
structures where reasonably required by the character of the work to be
performed, always providing that the entrance to the Premises shall not
be blocked thereby, and further providing that the business of the Tenant
shall not be interfered with unreasonably. Tenant hereby waives any claim
for damages or for any injury or inconvenience to or interference with
Tenant's business any loss of occupancy or quiet enjoyment of the
Premises, and any other loss occasioned thereby. For each of the
aforesaid purposes, Landlord shall at all times have and retain a key
with which to unlock all of the doors in, upon and about the Premises,
excluding Tenant's vaults, safes and files,
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and specific, secured, sensitive and confidential offices and Landlord
shall have the right to use any and all means which Landlord may deem
proper to open said doors in any emergency, in order to obtain entry to
the Premises without liability to Tenant except for any failure to
exercise due care for Tenant's property. Any entry to the Premises
obtained by Landlord by any of said means, or otherwise shall not under
any circumstances be construed or deemed to be a forcible or unlawful
entry into, or a detainer of, the Premises, or an eviction of Tenant from
the Premises or any portion thereof.
22. RECONSTRUCTION In the event the Premises or the Building of which the
Premises are a part are damaged by fire or other perils covered by
extended coverage insurance, Landlord agrees to forthwith repair the
same, and this Lease shall remain in full force and effect, except that
Tenant shall be entitled to a proportionate reduction of the rent while
such repairs are being made, such proportionate reduction to be based
upon the extent to which the making of such repairs shall materially
interfere with the business carried on by the Tenant in the Premises. If
the damage is due to the fault or neglect of Tenant or its employees,
there shall be no abatement of rent.
In the event the Premises or the Building of which the Premises are a
part are damaged as a result of any cause other than the perils covered
by fire or extended coverage insurance, then Landlord shall forthwith
repair the same provided the extent of the destruction be less than ten
(10%) of the then full replacement cost of the Premises or the Building
of which the Premises are a part. In the event the destruction of the
Premises or the Building is to an extent greater than ten (10%) of the
full replacement cost, then Landlord shall have the option (1) to repair
or restore such damage, this Lease continuing in full force and effect,
but the rent to be proportionately reduced as hereinabove in this Article
provided; or (2) give notice to Tenant at any time within sixty (60) days
after such damage terminating this Lease as of the date specified in such
notice, which date shall be no less than thirty (30) and no more than
sixty (60) days after the giving of such notice. In the event of giving
such notice, this Lease shall expire and all interest of the Tenant in
the Premises shall terminate on the date so specified in such notice and
the Rent, reduced by a proportionate amount, based upon the extent, if
any, to which such damage materially interfered with the business carried
on by the Tenant in the Premises, shall be paid up to date of said such
termination.
Notwithstanding anything to the contrary contained in this Article,
Landlord shall not have any obligation whatsoever to repair, reconstruct
or restore the damage to the Premises resulting from any casualty covered
under this Article which occurs during the last twelve (12) months of the
term of this Lease or any extension thereof.
Landlord shall not be required to repair any injury or damage by fire or
other cause, or to make any repairs to replacements of any over-standard
tenant improvements (specifically those exceeding Landlord's tenant
improvement allowance as defined in Addendum to Lease, P.4.B) or Tenant's
trade fixtures, equipment, furniture or personal property.
Except for abatement of rent as provided above, the Tenant shall not be
entitled to any compensation or damages from Landlord for loss of the use
of the whole or any part of the premises, Tenant's personal property or
any inconvenience or annoyance occasioned by such damage, repair,
reconstruction or restoration.
23. DEFAULT The occurrence of any or more of the following events shall
constitute a default and breach of this Lease by Tenant:
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A. The vacating or abandonment of the Premises by Tenant, except in
cases when Tenant is current with all rental payments.
B. The failure by Tenant to make any payment of rent or any other
payment required to be made by Tenant hereunder, as and when due,
where such failure shall continue for a period of ten (10) days
after written notice thereof by Landlord to Tenant.
C. The failure by Tenant to observe or perform any of the covenants,
conditions or provisions of this Lease to be observed or performed
by the Tenant, other than described in Article 23.B. above, where
such failure shall continue for a period of thirty (30) days after
written notice thereof by Landlord to Tenant; provided, however,
that if the nature of Tenant's default is such that more than
thirty (30) days are reasonably required for its cure, then Tenant
shall not be deemed to be in default if Tenant commences such cure
within said thirty (30) day period and thereafter diligently
prosecutes such cure to completion.
D. The making by Tenant of any general assignment or general
arrangement for the benefit of creditors, or the filing by or
against Tenant of a petition to have Tenant adjudged a bankrupt, or
a petition or reorganization or arrangement under any law relating
to bankruptcy (unless, in the case of a petition filed against
Tenant, the same is dismissed within sixty (60) days); or the
appointment of a trustee or a receiver to take possession of
substantially all of Tenant's assets located at the Premises or of
Tenant's interest in this Lease, where possession is not restored
to Tenant within thirty (30) days; or the attachment, execution or
other judicial seizure of substantially all of Tenant's assets
located at the Premises or of Tenant's interests in this Lease,
where such seizure is not discharged in thirty (30) days.
24. REMEDIES IN DEFAULT In the event of any such material default or breach
by Tenant, Landlord may at any time thereafter, with or without notice or
demand and without limiting Landlord in the exercise of a right or remedy
which Landlord may have by reason of such default or breach:
A. Terminate Tenant's right to possession of the Premises by any
lawful means, in which case this Lease shall terminate and Tenant
shall immediately surrender possession of the Premises to Landlord.
In such event Landlord shall be entitled to recover from Tenant all
damages incurred by necessary renovation and alteration of the
Premises, reasonable attorney's fees, any real estate commission
actually paid, the worth at the time of award by the court having
jurisdiction thereof of the amount by which the unpaid rent for the
balance of the term after the time of such award exceeds the amount
of such rental loss for the same period that Tenant proves could be
reasonably avoided, that portion of the leasing commission paid by
Landlord and applicable to the unexpired term of this Lease. Unpaid
installments of rent or other sums shall bear interest from the
date due at the rate of ten (10%) percent per annum. In the event
Tenant shall have abandoned the Premises, Landlord shall have the
option of (a) taking possession of the Premises and recovering from
Tenant the amount specified in this paragraph, or (b) proceeding
under the provisions of the following Article 24.B.
B. Maintain Tenant's right to possession, in which case this Lease
shall continue in effect whether or not Tenant shall have abandoned
the Premises. In such event Landlord shall be entitled to enforce
all of Landlord's right and remedies under this Lease, including
the right to recover the rent as it becomes due hereunder.
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C. Pursue any other remedy now or hereafter available to Landlord
under the laws or judicial decision of the State in which the
Premises are located.
25. EMINENT DOMAIN If more than twenty-five (25%) percent of the Premises
shall be taken or appropriated by any public or quasi-public authority
under the power of eminent domain, either party hereto shall have the
right, at its option, to terminate this Lease, and Landlord shall be
entitled to any and all income, rent, award or any interest therein
whatsoever which may be paid or made in connection with such public or
quasi-public use or purpose, and Tenant shall have no claim against
Landlord for the value of any unexpired term of this Lease. If either
less than or more than twenty-five (25%) percent of the Premises is
taken, and neither party elects to terminate as herein provided, the
rental thereafter to be paid shall be equitably reduced. If any part of
the Building other than the Premises may be so taken or appropriated,
Landlord shall have the right at its option to terminate this Lease and
shall be entitled to the entire award as above provided. Notwithstanding
the foregoing, Tenant shall be entitled to that portion of any
condemnation award made specifically on account of Tenant's relocation
expenses, increased rental costs, improvements contracted at Tenant's
expense or disruption of Tenant's business.
26. OFFSET STATEMENT Tenant shall at any time and from time to time upon not
less than ten (10) days prior written notice from Landlord execute,
acknowledge and deliver to Landlord a statement in writing (a) certifying
that this Lease is unmodified and in full force and effect (or, if
modified, stating the nature of such modification and certifying that
this Lease as so modified is in full force and effect) and the date to
which the rental and other charges are paid in advance, if any, and (b)
acknowledging that there are not, to Tenant's knowledge, any uncured
defaults on the part of the Landlord hereunder or specifying such
defaults if any are claimed. Any such statement may be relied upon by any
prospective purchaser or encumbrancer of all or any portion of the real
property of which the Premises are a part.
27. PARKING Tenant shall have the right to use in common with other tenants
or occupants of the Building the parking facilities of the Building.
28. AUTHORITY OF PARTIES
A. Corporate Authority. If Tenant is a corporation, each individual
executing this Lease on behalf of said corporation represents and
warrants that he is duly authorized to execute and deliver this
Lease on behalf of said corporation, in accordance with a duly
adopted resolution of the board of directors of said corporation or
in accordance with the by-laws of said corporation, and that this
Lease is binding upon said corporation in accordance with its
terms.
B. Limited Partnerships. If the Landlord herein is a limited
partnership, it is understood and agreed that any claims by Tenant
on Landlord shall be limited to the assets of the limited
partnership, and furthermore, Tenant expressly waives any and all
rights to proceed against the individual partners or the officers,
directors or shareholders of any corporate partner, except to the
extent of their interest in said limited partnership.
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29. GENERAL PROVISIONS
(i) Plats and Riders. Clauses, plats and riders, if any, signed by the
Landlord and the Tenant and endorsed on or affixed to this Lease
are a part hereof.
(ii) Waiver. The waiver by Landlord of any term, covenant or condition
herein contained shall not be deemed to be a waiver of such term,
covenant or condition on any subsequent breach of the same or any
other term, covenant or condition herein contained. The subsequent
acceptances of rent hereunder by Landlord shall not be deemed to be
a waiver of any preceding breach by Tenant of any term, covenant or
condition of this Lease, other than the failure of the Tenant to
pay the particular rental so accepted, regardless of Landlord's
knowledge of such preceding breach at the time of the acceptance of
such rent.
(iii) Notices. All notices and demands which may or are to be required or
permitted to be given by either party to the other hereunder shall
be in writing. All notices and demands by the Landlord to the
Tenant shall be sent by United States Mail, postage prepaid,
addressed to the Tenant at 000 Xxxxx Xxxxxxx Xxxxx, Xxx Xxxxxx,
Xxxxxxxxxx 00000, or to such other places as Tenant may from time
to time designate in a notice to the Landlord. All notices and
demands by the Tenant to the Landlord shall be sent by United
States Mail, postage prepaid, addressed to the Landlord at 000
Xxxxx Xxxxx Xxxx, Xxxxx 000, Xxx Xxxxxx, Xxxxxxxxxx 00000, or to
such other person or place as the Landlord may from time to time
designate in a notice to the Tenant.
(iv) Joint Obligation. If there be more than one Tenant the obligations
hereunder imposed upon Tenants shall be joint and several.
(v) Marginal Headings. The marginal headings and titles to the Articles
of this Lease are not a part of this Lease and shall have no effect
upon the construction or interpretation of any part hereof.
(vi) Time. Time is of the essence of this Lease and each and all of its
provisions in which performance is a factor.
(vii) Successors and Assigns. The covenants and conditions herein
contained, subject to the provisions as to assignment, apply to and
bind the heirs, successors, executors, administrators and assigns
of the parties hereto.
(viii)Recordation. Neither Landlord nor Tenant shall record this Lease
or a short form memorandum hereof without the prior written consent
of the other party.
(ix) Quiet Possession. Upon Tenant paying the rent reserved hereunder
and observing and performing all of the covenants, conditions and
provisions on Tenant's part to be observed and performed hereunder,
Tenant shall have quiet possession of the Premises for the entire
term hereof, subject to all the provisions of this Lease.
(x) Late Charges. Tenant hereby acknowledges that late payment by
Tenant to Landlord of rent or other sums due hereunder will cause
Landlord to incur costs not contemplated by this Lease, the exact
amount of which will be extremely difficult to ascertain. Such
costs include, but are not limited to, processing and accounting
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charges, and late charges which may be imposed upon Landlord by
terms of any mortgage or trust deed covering the Premises.
Accordingly, if any installment of rent or of a sum due from Tenant
shall not be received by Landlord or Landlord's designee within ten
(10) days after said amount is past due, then Tenant shall pay to
Landlord a late charge equal to ten (10%) percent of such overdue
amount. The parties hereby agree that such late charges represent a
fair and reasonable estimate of the cost that Landlord will incur
by reason of the late payment by Tenant. Acceptance of such late
charges by Landlord shall in no event constitute a waiver of
Tenant's default with respect to such overdue amount, nor prevent
Landlord from exercising any of the other rights and remedies
granted hereunder.
(xi) Prior Agreements. This Lease contains all of the agreements of the
parties hereto with respect to any matter covered or mentioned in
this Lease, and no prior agreements or understanding pertaining to
any such matters shall be effective for any purpose. No provision
of this Lease may be amended or added to except by an agreement in
writing signed by the parties hereto or their respective successors
in interest. This Lease shall not be effective or binding on any
party until fully executed by both parties hereto.
(xii) Inability to Perform. This Lease and the obligations of the Tenant
hereunder shall not be affected or impaired because the Landlord is
unable to fulfill any of its obligations hereunder or is delayed in
doing so, if such inability or delay is caused by reason of strike,
labor troubles, acts of God, or any other cause beyond the
reasonable control of the Landlord.
(xiii)Attorney's Fees. In the event of any action or proceeding brought
by either party against the other under this Lease the prevailing
party shall be entitled to recover all costs and expenses including
the fees of its attorneys in such action or proceeding in such
amount as the court may adjudge reasonable as attorney's fees.
(xiv) Sale of Premises by Landlord. In the event of any sale of the
Building, Landlord shall be and is hereby entirely freed and
relieved of all liability under any and all of its covenants and
obligations contained in or derived from this Lease arising out of
any act, occurrence or omission occurring after the consummation of
such sale; and the purchaser, at such sale or any subsequent sale
of the Premises shall be deemed, without any further agreement
between the parties or their successors in interest or between the
parties and any such purchaser to have assumed and agreed to carry
out any and all of the covenants and obligations of the Landlord
under this Lease.
(xv) Subordination Attornment. Upon request of the Landlord, Tenant will
in writing subordinate its rights hereunder to the lien of any
first mortgage, or first deed of trust to any bank, insurance
company or other lending institution, now or hereafter in force
against the land and Building of which the Premises are a part, and
upon any buildings hereafter placed upon the land of which the
Premises are a part, and to all advances made or hereafter to be
made upon the security thereof.
Notwithstanding such subordination, neither Tenant's right to quiet
possession of the Premises nor this Lease shall be disturbed or
affected if Tenant is not in default hereunder and so long as
Tenant shall pay the rent and observe and
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perform all of the provisions of this Lease, unless this Lease is
otherwise terminated pursuant to its terms.
(xvi) In the event any proceedings are brought for foreclosure, or in the
event of the exercise of power of sale under any mortgage or deed
of trust made by the Landlord covering the Premises, the Tenant
shall attorn to the purchaser upon any such foreclosure or sale and
recognize such purchaser as the Landlord under this Lease.
(xvii)Name. Tenant shall not use the name of the Building or of the
development in which the Building is situated for any purpose other
than as an address of the business to be conducted by the Tenant in
the Premises.
(xviii) Separability. Any provision of this Lease which shall prove to be
invalid, void or illegal shall in no way effect, impair or
invalidate any other provision hereof and such other provision
shall remain in full force and effect.
(xix) Cumulative Remedies. No remedy or election hereunder shall be
deemed exclusive but shall, wherever possible, be cumulative with
all other remedies at law or in equity.
(xx) Choice of Law. This Lease shall be governed by the laws of the
State in which the Premises are located.
(xxi) Signs and Auctions. Tenant shall not place any sign upon the
Premises or Building or conduct any auction thereon without
Landlord's prior written consent.
30. BROKERS Tenant warrants that it has had no dealings with any real estate
broker or agents in connection with the negotiation of this Lease and it
knows no real estate broker or agent who is entitled to a commission in
connection with this Lease.
The Xxxxxx and Xxx Xxxx Fair, Xxxxx and Company,
Revocable Trust Incorporated
By: Xxxxxx Xxxx By: Xxxxxx X. Xxxxxxxxx
----------------------------- ---------------------------------
Xxxxxx Xxxx
Its: Its: Executive Vice President
----------------------------- ---------------------------------
By: Xxx Xxxx Date: December 28, 1993
----------------------------- ---------------------------------
Xxx Xxxx
Its:
----------------------------- ---------------------------------
Date: January 14, 1994
-----------------------------
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RULES AND REGULATIONS
1. No sign, placard, picture, advertisement, name or placard shall be
inscribed, displayed or printed or affixed on or to any part of the
outside or inside of the Building without the written consent of the
Landlord first had and obtained and Landlord shall have the right to
remove any such sign, placard, picture, advertisement, name or notice
without notice to and at the expense of Tenant.
All approved signs or lettering on doors shall be printed, painted,
affixed or inscribed at the expense of Tenant by a person approved of by
Landlord.
Tenant shall not place anything or allow anything to be placed near the
glass of any window, door, partition or wall which may appear unsightly
from outside the Premises; provided, however, that Landlord may furnish
and install a Building standard window covering at all exterior windows.
Tenant shall not without prior written consent of Landlord cause or
otherwise sunscreen any window.
2. The sidewalks, halls, passages, exits, entrances, elevators and stairways
shall not be obstructed by any of the tenants or used by them for any
purpose other than for ingress and egress from their respective Premises.
3. Tenant shall not alter any lock or install any new or additional locks
without permission of Landlord, whose consent shall not be unreasonably
withheld, or any bolts on any doors or windows of the Premises.
4. The toilet rooms, urinals, wash bowls and other apparatus shall not be
used for any purpose other than that for which they were constructed and
no foreign substance of any kind whatsoever shall be thrown therein and
the expense of any breakage, stoppage, damage resulting from the
violation of this rule shall be borne by the Tenant who, or whose
employees or invitees shall have caused it.
5. Tenant shall not overload the floor of the Premises or in any way deface
the Premises or any part thereof.
6. No furniture, freight or equipment of any kind shall be brought into the
Building without the prior notice to Landlord and all moving of the same
into or out of the Building shall be done at such time and in such manner
as Landlord shall designate. Notwithstanding the above, Tenant shall have
the right to move furniture, freight or equipment into and out of the
building without prior notice to Landlord, provided that such moves do
not involve exclusive use of an elevator for an extended period of time,
nor does the move interfere with the operation of other tenants in the
building. Landlord shall have the right to prescribe the weight, size and
position of all safes and other heavy equipment brought into the Building
and also the times and manner of moving the same in and out of the
Building. Safes or other heavy objects shall, if considered necessary by
Landlord, stand on supports of such thickness as is necessary to properly
distribute the weight. Landlord will not be responsible for loss of or
damage to any such safe or property from any cause and all damage done to
the Building by moving or maintaining any such safe or other property
shall be repaired at the expense of the Tenant.
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7. Tenant shall not use, keep or permit to be used or kept any foul or
noxious gas or substance in the Premises, or permit or suffer the
Premises to be occupied or used in a manner offensive or objectionable to
the Landlord or other occupants of the Building by reason of noise, odors
and/or vibrations, or interfere in any way with other tenants or those
having business therein, nor shall any animals or birds be brought in or
kept in or about the Premises or the Building.
8. No cooking, except for microwave and coffee machines, shall be done or
permitted by any Tenant on the Premises, nor shall the Premises be used
for the storage of merchandise, for washing clothes, for lodging, or for
any improper, objectionable or immoral purposes.
9. Tenant shall not use or keep in the Premises of the Building any
kerosene, gasoline or inflammable or combustible fluid or material, or
use any method of heating or air conditioning other than that supplied by
Landlord.
10. Landlord will direct electricians as to where and how telephone and
telegraph wires are to be introduced. No boring or cutting for wires will
be allowed without the consent of the Landlord. The location of
telephones, call boxes and other office equipment affixed to the Premises
shall be subject to the approval of Landlord, which shall not be
unreasonably withheld.
11. On Saturdays, Sundays and legal holidays, and on other days between the
hours of 6:00 P.m. and 8:00 a.m. the following day, access to the
Building, or to the halls, corridors, elevators or stairways in the
Building, or to the Premises may be refused unless the person seeking
access is known to the person or employee of the Building in charge and
has a pass or is properly identified. The Landlord shall in no case be
liable for damages for any error with regard to the admission to or
exclusion from the Building of any person. In case of invasion, mob,
riot, public excitement, or other commotion, the Landlord reserves the
right to prevent access to the Building during the continuance of the
same by closing of the doors or otherwise, for the safety of the tenants
and protection of property in the Building and the Building.
12. Landlord reserves the right to exclude or expel from the Building any
person who, in the judgment of Landlord, is intoxicated or under the
influence of liquor or drugs, or who shall in any manner do any act in
violation of any of the rules and regulations of the Building.
13. No vending machine or machines of any description shall be installed,
maintained or operated upon the Premises without the written consent of
the Landlord, which shall not be unreasonably withheld.
14. Landlord shall have the right, exercisable without notice and without
liability to Tenant, to change the name and street address of the
Building of which the Premises are a part.
15. Tenant shall not disturb, solicit, or canvass any occupant of the
Building and shall cooperate to prevent same.
16. Without the written consent of Landlord, Tenant shall not use the name of
the Building in connection with or in promoting or advertising the
business of Tenant except as Tenant's address.
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17. Landlord shall have the right to control and operate the public portions
of the Building, and the public facilities, and heating and air
conditioning, as well as facilities furnished for the common use of the
tenants, in such manner as it deems best for the benefit of the tenants
generally.
18. All entrance doors in the Premises shall be left locked when the Premises
are not in use, and all doors opening to public corridors shall be kept
closed except for normal ingress and egress from the Premises, unless
suite entry doors are controlled by UL and municipally approved hold-open
devices which are connected to building life-safety systems.
4
FIRST ADDENDUM TO LEASE
BY AND BETWEEN
THE XXXXXX & XXX XXXX REVOCABLE TRUST, LANDLORD
AND
FAIR, XXXXX AND COMPANY, INCORPORATED, TENANT
DATED OCTOBER 11, 1993
1. OPERATING EXPENSE ADJUSTMENTS (Continued from Article 7 of the Lease.)
A. During the initial term of this Lease, management costs for the
building shall not exceed three percent (3%) of the gross rental
income for the building.
B. Landlord shall keep full, accurate and separate books of account
and records covering all Direct Expenses, which books of accounts
and records shall accurately reflect the total Direct Expenses and
Landlord's xxxxxxxx to Tenant for Operating Expense Adjustments.
C. Tenant shall have the right to protest any charge to Tenant by
Landlord for Operating Expense Adjustments, provided that said
protest is made within thirty (30) days after receipt of Landlord's
notice of such charge. In the event that Tenant shall protest,
Tenant shall be entitled to audit Landlord's books of account,
records and other pertinent data regarding Direct Expenses. The
audit shall be limited to the determination of direct Expenses and
charges to Tenant for Operating Expense Adjustments and shall be
conducted during normal business hours. If the audit shows that
there has been an overpayment by Tenant, the overpayment shall be
immediately due and repayable by Landlord to Tenant.
2. OPTION TO EXTEND
A. Landlord grants to Tenant the option to extend the term of this
Lease for two 3-year periods commencing when the prior term expires
upon each and all of the following terms and conditions:
(i) Tenant gives to Landlord and Landlord receives notice of
the exercise of the option to extend this Lease for said
additional term no later than twelve (12) months prior to
the time that the option period would commence if the
option were exercised, time being of the essence. If said
notification of the exercise of said option is not so
given and received, this option shall automatically
expire;
(ii) At the time said written notification of exercise of
option is given and received, Tenant shall not be in
default under any of the material obligations of this
Lease to be performed by Tenant and this Lease shall not
have previously terminated nor terminated prior to the
commencement of the option term;
(iii) All of the terms and conditions of this Lease except
where specifically modified by this option shall apply;
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(iv) The monthly rent for each month of the option period
shall be calculated as follows:
The rent payable by Tenant during the first option period
shall be the Fair Market Rental Value of the Premises (as
defined below) at the commencement date of the option
period. There shall be an annual C. P.I. increase not to
exceed four percent (4%) in each subsequent year of the
first option period. The rent in the first year of the
second option period shall be the rent in the last year
of the first option period to which will be added a C.
P.I. increase not to exceed four percent (4%). There
shall be an annual C. P.I. increase not to exceed four
percent (4%) in each subsequent year of the second option
period. All of the C. P.I. increases during the option
periods shall be calculated on the basis of the formula
provided in the Lease P.5.B.
If Landlord and Tenant cannot agree on the Fair Market
Rental Value of the Premises for the extension periods
within forty-five (45) days after the Tenant has notified
Landlord of its exercise of the option, Landlord and
Tenant shall each select, within forty-five (45) days of
such notification, an appraiser who must be a qualified
M.A.I. appraiser to determine said Fair Market Rental
Value. If one party fails to so designate an appraiser
within the time required, the determination of Fair
Market Rental Value of the one appraiser who has been
designated by the other party hereto within the time
required shall be binding upon both parties. The
appraisers shall submit their determinations of Fair
Market Rental Value to both parties within thirty (30)
days after their selection. If the difference between the
two determinations is ten percent (10%) or less of the
higher appraisal, then the average between the two
determinations shall be the Fair Market Rental Value of
the Premises. If said difference is greater than ten
percent (10%), then the two appraisers shall within
twenty (20) days of the date that the later submittal is
submitted to the parties designate a third appraiser who
must also be a qualified M.A.I. appraiser. The sole
responsibility of the third appraiser will be to
determine which of the determinations made by the first
appraisers is most accurate. The third appraiser shall
have no right to propose a middle ground or any
modification of either of the determinations made by the
first two appraisers. The third appraiser's choice shall
be submitted to the parties within thirty (30) days after
his or her selection. Such determination shall bind both
of the parties and shall establish the Fair Market Rental
Value of the Premises. Each party shall pay for their own
appraiser and shall pay an equal share of the fees and
expenses of the third appraiser.
Fair Market Rental Value for purpose of this Lease shall
mean the then prevailing rent for premises comparable in
size, quality, and orientation to the demised Premises,
located in buildings comparable in size to, and in the
general vicinity of, the building which the demised
Premises are located, leased on terms comparable to the
terms contained in this Lease.
2
3. RIGHT OF FIRST OPPORTUNITY TO LEASE ADDITIONAL PREMISES AT 100 XXXXX
RANCH ROAD, SAN XXXXXX
At any time during the term hereof, or any options to extend which Tenant
has exercised, provided that Tenant is not in default as defined herein,
Tenant shall have a right of first opportunity to lease all office space
that becomes available for lease at 000 Xxxxx Xxxxx Xxxx, Xxx Xxxxxx,
based on the terms and conditions as outlined below. Landlord and Tenant
acknowledge that there are existing tenants at 000 Xxxxx Xxxxx Xxxx,
which tenants have options to renew or who wish to renew their respective
leases, and that these existing options and requests to renew would take
precedent over the first opportunity to lease described herein.
Landlord and Tenant further acknowledge that this right of first
opportunity to lease shall apply only to premises, from which existing
tenants vacate or which is currently vacant.
Landlord shall notify Tenant in writing of the availability of additional
office premises at 000 Xxxxx Xxxxx Xxxx, Xxx Xxxxxx within 30 days of
Landlord receiving notice from an existing Tenant at 000 Xxxxx Xxxxx Xxxx
of that Tenant's intent to vacate their premises. Landlord's notice to
Tenant shall include the size of premises, the projected date at which
the premises may be available, and a floor plan indicating the current
configuration of the premises.
Tenant shall have 30 days after receipt of notice from Landlord to notify
Landlord of Tenant's intent to lease the premises which was the subject
of the notice. In the event Landlord does not receive notice from Tenant
of Tenant's intent to lease said available space, Landlord shall have the
right to lease said space to any other Tenant which Landlord chooses, and
Tenant's right of first opportunity to lease that specific premises shall
be deemed waived.
In the event Tenant notifies Landlord of its intent to lease said
premises, Landlord and Tenant shall proceed as soon as is reasonably
possible to execute a lease agreement for the specific premises that
became available. Terms and conditions of the Lease shall be based on the
same terms and conditions of the lease(s) on the other space Tenant
occupies in the Building at the time the lease is executed. Landlord and
Tenant shall make a good faith effort to execute a Lease for the specific
available space within 30 days after Tenant has notified Landlord of its
intent to lease said space.
This right of first opportunity to lease shall in no way limit the
Landlord from executing leases with new tenants for terms of any length,
with options to renew for any length, for those spaces for which Tenant
has not exercised its right of first opportunity to lease as defined
herein.
4. TENANT IMPROVEMENTS
A. Construction: Landlord shall, prior to the Commencement Date (as
defined in Addendum P.6.A), construct the tenant improvements in
Tenant's Premises based on the space plan prepared by Tenant's
Architect dated _______, Exhibit B to the Lease, and working
drawings prepared by ______________, dated ___________, which will
be attached to the Lease as Exhibit C.
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B. Allowance: Landlord shall contribute Eighty Thousand Six Hundred
Thirty-eight Dollars ($80,638.00) ($23.00 x 3,506 useable sq. ft.)
toward the construction of the tenant improvements for Tenant's
Premises. The Tenant Improvement Allowance shall include all
architectural, engineering and consultant fees. In the event that
the total cost of the tenant improvements including architectural,
engineering and consulting fees, exceeds the Tenant Improvement
Allowance, Tenant shall pay Landlord the amount of such excess
within thirty (30) days after receipt by Tenant of an invoice from
Landlord documenting the cost of the tenant improvement work. In
the event the total cost of the tenant improvements in Tenant's
Premises is less than $80,638.00, Landlord shall provide Tenant
with a credit for the unused balance which Tenant can apply to the
Tenant Improvement Allowance for the build-out in Tenant's Premises
on the Second Floor of the Building (See Lease dated July 10,
1993).
C. Contractor: The contractor for the tenant improvements in Tenant's
Premises shall be Xxxx Xxxxxxx. Tenant shall approve the budget
figures for the build-out prior to commencement of the work.
If Tenant chooses, WBE Electrical and WBE Telecom shall provide the
electrical and data communication system cabling services, Peerless
Lighting will provide lighting fixtures, and Xxxxxx Security shall
provide the security systems.
D. Change Orders: Tenant may, but only by written instructions or
drawings issued to Landlord and Contractor ("Change Order
Request"), make changes to the work specified in the working
drawings, including without limitation, requiring additional work,
directing the omission of work previously ordered or changing the
quantity or type of any materials, equipment or services. Promptly
upon receipt of a Change Order Request, Contractor will provide
Tenant with a statement in detail setting forth the cost of said
change (including a breakdown of costs attributable to labor and
materials, construction equipment exclusively necessary for the
change, and preparation or amendment to shop drawings resulting
from said change and any time delays anticipated to result from
said change). Tenant will have two (2) days after receipt of such
statement in which to confirm the Change Order Request and
authorize the work to be performed or to withdraw such request.
Change Orders will be signed by Landlord and Tenant in advance of
any work being performed on a Change Order.
E. Substantial Completion: For purposes of this Lease, "Substantial
Completion" shall mean that construction of the tenant improvements
has been completed in accordance with the working drawings, except
for minor finishing details of construction, decoration, mechanical
adjustment, minor replacement of defective or damaged materials,
and other items of a type commonly found on architectural
punchlists, all of which do not materially interfere with the
occupancy and use of the Premises by Tenant or with Tenant's
ability to complete the improvements to the Premises to be made by
Tenant.
Within seven calendar (7) days after Substantial Completion of the
tenant improvements, Tenant shall make an inspection of the
Premises and prepare a punchlist of items needing additional work
by the Contractor. Landlord's Contractor shall complete all
punchlist items reasonably identified by Tenant or Landlord within
thirty calendar (30) days after the inspection or as soon as
4
practicable thereafter. If there is any dispute as to whether
Contractor has substantially completed the work, a good faith
decision of Tenant's Architect shall be final and binding on the
parties.
Landlord's Contractor will perform the tenant improvement work and
Landlord will notify Tenant in writing that the work is
Substantially Complete. If Tenant fails to object in writing within
seven calendar (7) days thereafter specifying in reasonable detail
the items of work needed to be performed in order to achieve
Substantial Completion, then Tenant shall be deemed conclusively to
have agreed that the work is Substantially Complete, for purposes
of Commencement under the Lease. Substantial Completion shall not
prejudice Tenant's rights to require full completion of any
remaining items of work.
F. Ownership of Tenant Improvements: Upon termination of the Lease,
all of the tenant improvements shall remain in the Premises unless
Landlord shall consent in writing to the removal thereof by Tenant.
All trade fixtures, equipment, furniture and personal property
installed by or at the expense of Tenant shall remain the property
of Tenant.
G. Life Safety: With respect to Life Safety System, Landlord believes
to the best of its knowledge that Regency Center meets all current
code requirements including handicap access compliance. If any code
requirements are not met with respect to the Building's Life Safety
System all costs to accomplish changes necessary to the Building
shall be covered by Landlord. All code compliance costs with
respect to Tenant's Premises shall be covered by the Tenant
Improvement Allowance or by Tenant.
5. POSSESSION
A. If for any reason whatsoever, Landlord cannot deliver possession of
the Premises to Tenant as of the Commencement Date as defined in
Addendum, P.6.A, this Lease shall not be void or voidable, nor
shall Landlord be liable to Tenant for any loss or damage resulting
therefrom, nor shall the expiration date of the above term be in
any way extended, but in that event, all rent shall be abated
during the period between the Commencement Date and the date when
Landlord actually delivers possession.
B. In the event Landlord shall permit Tenant to occupy the Premises
prior to the Commencement Date, such occupancy shall be subject to
all of the provisions of this Lease. Said early possession shall
not advance the termination date hereinabove provided.
C. If Landlord shall not have delivered possession of the Premises
within ninety (90) days after the Commencement Date (as defined in
Addendum P.6.), Tenant may, at Tenant's option, by notice in
writing to Landlord within ten (10) days thereafter, cancel this
Lease, in which event the parties shall be discharged from all
obligations hereunder; provided, however, that if such written
notice by Tenant is not received by Landlord within said ten (10)
day period, Tenant's right to cancel this lease hereunder shall
terminate and be of no further force or effect. If there are Tenant
Caused Delays (as defined in Addendum P.6.C.), the number of days
of
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delay shall be added to the ninety (90) days in which Landlord has
to deliver possession of the Premises before Tenant has the right
to cancel this Lease.
6. COMMENCEMENT
A. The Commencement Date shall be defined as five (5) business days
after Landlord delivers possession of the Premises to Tenant, after
Substantial Completion of the tenant improvement work (as defined
in Addendum P.4.E) and in no event later than January 5, 1994.
Thirty (30) days after Substantial Completion, Landlord shall
notify Tenant in writing of the actual Commencement Date. In the
event Substantial Completion is delayed by Tenant Caused Delays (as
defined in Addendum P.6.C.) the same number of days shall be
deducted from total number of days of the build-out and that date
shall be the Commencement Date.
B. The following shall be deemed "Tenant Caused Delays" for purposes
of this lease:
(i) Tenant's or Tenant's Architect's failure to timely
complete, approve or reasonably object to any proposed
plans, specifications or drawings for the Premises, or
the tenant improvement work.
(ii) Tenant's requests for changes, alterations or additions
with respect to the layout of the Premises, the build-out
of the tenant improvements and the materials or finish of
the improvements which result in delay.
(iii) Any upgrades, special work, fixtures or equipment or
other items to the extent that the same involve longer
lead times, installation times or other delays not
encountered in standard office improvements or as a
result of any materials not readily available or
unusually difficult to install or apply.
(iv) The performance by Tenant, or by any company or person
employed by Tenant, of any work at the Premises which in
any manner disrupts or delays the work at the Premises
that Landlord or Contractor shall be performing; or
(v) Any failure of Tenant to cooperate with Landlord or
otherwise act in good faith in order to cause the Work to
be designed and performed in a timely manner.
7. SERVICES AND UTILITIES
A. Provided that Tenant is not in default hereunder, Landlord agrees
to furnish to the Premises five-day per week janitorial service.
Landlord shall also maintain and keep lighted, heated and air
conditioned during reasonable hours of generally recognized
business days, the common entries, common corridors, common stairs
and toilet rooms in the building of which Premises are a part.
Landlord shall not be liable for, and Tenant shall not be entitled
to, any reduction of rental by reason of Landlord's failure to
furnish any of the foregoing when such failure is caused by
accident, breakage, repairs, strikes, lockouts or other labor
disturbances or labor disputes of any character, or by any other
cause, similar or dissimilar, beyond the reasonable control of
Landlord. Landlord shall not be liable under any circumstances for
a loss of or injury to property, however occurring, through or in
connection with or incidental to failure to furnish any of the
foregoing.
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B. Tenant shall have 24-hour per day, seven-day per week access to its
Premises.
C. Landlord shall provide Tenant a monthly allowance of $350.60 (3,506
useable square feet x $.10) for Tenant's electrical service. This
allowance is included in the Base Rent as defined in Article 5 of
the Lease.
Landlord and Tenant recognize that Tenant's electrical service may
cost in excess of $.10 per square foot per month due to Tenant's
heavy electrical requirements. Landlord's electrical engineer shall
provide an estimate of Tenant's electrical usage. Electrical
engineer's estimate shall be based on a computation of Tenant's
electrical equipment and special heating and air conditioning
requirements, the amount of amps required by Tenant's use of the
premises and the building kilowatt charge from Pacific Gas and
Electric.
Electrical engineer shall document his calculations and shall
submit these calculations to Tenant for Tenant's review. In the
event Tenant questions any of the variables used in engineer's
estimate, the Tenant shall submit information to the electrical
engineer sufficient to establish Tenant's electrical use at
premises. Electrical engineer, Tenant and Landlord shall then agree
upon correct data to be used in computation of Tenant's electrical
usage and electrical engineer, if necessary, shall submit new
calculations for Tenant's electrical use.
Landlord shall xxxx Tenant monthly for this excess electrical
usage. After the first year of Tenant's occupancy, or sooner should
Landlord or Tenant require it, electrical engineer shall
recalculate the estimate of Tenant's electrical usage to determine
the monthly charge for the following year. At this time, any excess
payments made by Tenant during the preceding year would be
refunded, or any shortfalls for the preceding year would be paid by
Tenant.
D. The hours of operation of the heating and air conditioning system
for the building are as follows:
Monday thru Friday: 7:00 a.m. to 6:00 p.m.
Saturdays: 8:00 a.m. to 3:00 p.m.
E. In the event Tenant requires the operation of the heating and air
conditioning system beyond the normal hours of operation for the
building, Tenant shall notify the building manager in advance of
the required extended hour usage, and the building manager shall
program the heating and air conditioning system to operate during
the time period requested by Tenant.
F. In the event Tenant shall request that an override mechanism be
installed during the term of the Lease, an override mechanism shall
be installed on the heating and air conditioning system which
services Tenant's premises. The cost of this mechanism shall be
paid by the Tenant at the time of the installation. This mechanism
shall allow Tenant to have control of the heating and air
conditioning system for its premises in hours other than the normal
building hours stated above.
Along with the override mechanism, an hourly meter shall be
attached to the override mechanism which shall measure Tenant's use
of the heating and air
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conditioning system beyond the normal building hours. On a monthly
basis, Landlord shall charge Tenant for this usage by multiplying
the number of hours used by the per hour charge for operating the
heating and air conditioning system which shall be determined by
Landlord's electrical engineer and heating and air conditioning
contractor.
8. COMMUNICATIONS INSTALLATION
Tenant has installed certain communications equipment on the roof of the
Building. Prior to the end of the term of this Lease, Tenant, at Tenant's
sole cost and expense, shall remove the communications equipment and
shall, forthwith and with all due diligence, repair any damage to the
Premises causes by such removal.
9. CONSENT
Landlord and Tenant agree that in the event their consent is required
pursuant to the provisions of the Lease, such consent shall not be
unreasonably withheld.
LANDLORD The Xxxxxx and Xxx Xxxx Revocable Trust
By: Xxxxxx Xxxx
---------------------------------
Xxxxxx Xxxx
Its:
---------------------------------
By: Xxx Xxxx
---------------------------------
Xxx Xxxx
Its:
---------------------------------
Date: January 14, 1994
---------------------------------
TENANT Fair, Xxxxx and Company, Incorporated
By: Xxxxxx X. Xxxxxxxxx
---------------------------------
Its: Executive Vice President
---------------------------------
Date: December 28, 1993
---------------------------------
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