EXHIBIT 10.28
OFFICE BUILDING LEASE
Regency Center II
San Rafael, California
OFFICE BUILDING LEASE
TABLE OF CONTENTS
Page
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1. PARTIES................................................................ 1
2. PREMISES............................................................... 1
3. TERM; PARTIAL SURRENDER; OPTION TO EXTEND.............................. 1
4. POSSESSION; CONSTRUCTION OF IMPROVEMENTS............................... 3
5. RENT; RENT ESCALATIONS; FIRST/THIRD FLOOR RENT; HOLD-OPEN RENT......... 4
6. SECURITY DEPOSIT....................................................... 5
7. OPERATING EXPENSE ADJUSTMENTS.......................................... 5
8. USE.................................................................... 7
9. COMPLIANCE WITH LAW; HAZARDOUS SUBSTANCES.............................. 7
10. ALTERATIONS AND ADDITIONS.............................................. 8
11. REPAIRS................................................................ 8
12. LIENS.................................................................. 9
13. ASSIGNMENT AND SUBLETTING.............................................. 10
14. HOLD HARMLESS.......................................................... 11
15. SUBROGATION............................................................ 12
16. LIABILITY INSURANCE.................................................... 12
17. SERVICES AND UTILITIES................................................. 12
18. PROPERTY TAXES......................................................... 13
19. RULES AND REGULATIONS.................................................. 14
20. HOLDING OVER........................................................... 14
21. ENTRY BY LANDLORD...................................................... 14
22. RECONSTRUCTION......................................................... 15
23. DEFAULT................................................................ 16
24. REMEDIES IN DEFAULT.................................................... 16
25. EMINENT DOMAIN......................................................... 17
26. ESTOPPEL CERTIFICATE................................................... 17
27. PARKING................................................................ 17
28. COMMUNICATIONS INSTALLATION............................................ 18
29. AUTHORITY OF PARTIES; LIMITATION....................................... 18
30. GENERAL PROVISIONS..................................................... 18
31. BROKERS................................................................ 21
OFFICE BUILDING LEASE
1. PARTIES. This Lease, dated for reference purposes only November 14,
1996, is made by and between Regency Center, a California general
partnership (herein called "Landlord") and Fair, Xxxxx and Company,
Incorporated, a Delaware corporation (herein called "Tenant").
2. PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases
from Landlord that certain office space (herein called the "Premises")
consisting of the entire building commonly known as Regency Center II,
located on Xxxxx Ranch Road, San Rafael, California (the "Building"),
the three (3) floors of which shall be tendered, improved and occupied
in accordance with the provisions of this Lease. For the purposes of
this Lease, the Premises are agreed to contain 124,196 rentable square
feet (43,512; 40,342 and 40,342 for the first, second and third floors,
respectively) and 111,668 usable square feet (38,105; 36,221 and 37,342
for the first, second and third floors, respectively).
This Lease is subject to the terms, covenants and conditions herein set
forth and 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; PARTIAL SURRENDER; OPTION TO EXTEND.
A. The term of this Lease shall commence on the earlier of (i)
March 1, 1997, or (ii) the date on which Tenant first takes
occupancy of the second floor of the Building ("Term
Commencement Date"), and shall expire on February 28, 2017
(the "Term Expiration Date").
B. As of July 31, 2008 and as of July 31 of each second year
thereafter (that is, July 31, 2010, July 31, 2012, etc.) (the
"Surrender Date(s)"), Tenant shall have the right to surrender
to Landlord, and to terminate this Lease only with respect to,
one-half (1/2) of one (1) floor of the Building (the
"Surrendered Space(s)). The particular Surrendered Space to be
surrendered to Landlord on any Surrender Date shall be
designated by Tenant in a written notice delivered to Landlord
no later than the date that is twelve (12) months prior to the
applicable Surrender Date, time being of the essence. After
Tenant first surrenders to Landlord a Surrendered Space, then
any additional Surrendered Space must be surrendered in a
manner such that Tenant shall at no time occupy only one-half
(1/2) of more than one (1) floor of the Building. In addition,
Tenant shall not have the right to surrender to Landlord more
than one (1) Surrendered Space (that is, not more than
one-half (1/2) of (1) floor in the Building) on any Surrender
Date. On each Surrender Date, Tenant shall deliver the
Surrendered Space to Landlord in accordance with Section 4.E.
of this Lease.
C. Provided this Lease is then in effect and Tenant is then
occupying the entirety of the Premises, Landlord grants to
Tenant the option to extend the term of this Lease for one (1)
ten- (10-) year period 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 such additional term no later than twenty-four
(24) months prior to the time that the option term
would commence if the option were exercised, time
being of the essence. If said notification of the
exercise of such option is not so given and received,
such option shall automatically expire.
(ii) At the time said written notification of exercise of
such option is given and received, or at the time
such option term is to commence, 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.
(iv) the monthly rent for each month of the option term
shall be calculated as follows:
The rent payable by Tenant during the option term
shall be the "Fair Market Rental Value" of the
Premises (as defined below) at the commencement date
of the option term. There shall be an annual C.P.I.
increase in the rent during the option term not to
exceed four percent (4%) per annum. All of the C.P.I.
increases during the option term shall be calculated
on the basis of the formula provided in Lease Section
5.A. Anything herein to the contrary notwithstanding,
if the rent in effect for the Premises for the twelve
(12) months immediately prior to the option term is
higher than the Fair Market Rental Value for the
Premises at the commencement of the option term, then
the rent for the Premises for the option term shall
be the lesser of: (i) the rent for the last twelve
(12) months of the initial term, or (ii) one hundred
five percent (105%) of the Fair Market Rental Value.
If Landlord and Tenant cannot agree on the Fair
Market Rental Value of the Premises for the 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
Premises, located in buildings comparable in size to,
and in the general vicinity of, the Building in which
the Premises are located, leased on terms comparable
to the terms contained in this Lease.
4. POSSESSION; CONSTRUCTION OF IMPROVEMENTS.
A. Landlord will tender the second floor of the Building to
Tenant in a partially-completed shell condition on or about
November 25, 1996. Landlord will tender to Tenant the first or
third floor of the Building (such floor to be determined at
Tenant's option by written notice thereof to Landlord no later
than May 1, 1997) on or about August 1, 1997. The floor which
is not tendered to Tenant on or about August 1, 1997 will be
tendered to Tenant on or about August 1, 1998. Tenant's rental
obligation with respect to the first and third floors will
commence on the date that is the earlier of: (i) the date the
respective floor is tendered to Tenant, or (ii) the date
Tenant first takes occupancy of such floor.
B. Tenant shall be responsible for construction of all tenant
improvements, as set forth on Exhibit A attached hereto.
C. The Premises when delivered by Landlord to Tenant shall
include two (2) partially completed decks on the second floor
of the Building. Tenant, at its option, may complete such
decks and/or construct a covered walkway at ground level
between the Building and that certain building adjacent to the
Building commonly known as Regency Center I ("Regency I"). All
such work shall be part of Tenant's improvement work described
in Exhibit A hereto, and the actual cost thereof shall be part
of the Allowance (as defined in Exhibit A). If Tenant elects
to complete such work, Tenant shall submit to Landlord plans
and specifications therefor for Landlord's approval, which
approval shall not be unreasonably withheld.
D. Prior to actual striping of the parking lot adjacent to the
Building, Landlord will notify Tenant so that Tenant may have
input into the selection of reserved areas for loading zone,
car/vanpool, maintenance vehicles, and the like.
E. On the Term Expiration Date or upon earlier termination of
this Lease, or on any Surrender Date, Tenant shall deliver to
Landlord possession of the Premises or portion thereof
together with all improvements, alterations or additions
thereto in substantially the same condition as received or
first installed, reasonable wear and tear excepted. Tenant
may, upon the termination of this Lease, remove its trade
fixtures and personal property, repairing any damage caused by
such removal.
5. RENT; RENT ESCALATIONS; FIRST/THIRD FLOOR RENT; HOLD-OPEN RENT.
A. Tenant agrees to pay to Landlord as rental for the second
floor of the Premises, each month during the term, without
prior notice or demand, an amount equal to the product of the
rentable square footage of the second floor and Two and 10/100
Dollars ($2.10) (that is, $84,718.20 per month) (the "Base
Rent"). The Base Rent shall be payable 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 Base Rent shall be paid upon
mutual execution of this Lease. Base 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. Base Rent 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.
The Base Rent for the second floor of the Premises shall be
adjusted as of the first day of each Lease Year in accordance
with increases, 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 "CPI."
The CPI increase shall be calculated as follows: The Base Rent
payable for the first month of the term of this Lease shall be
multiplied by the percentage change in the CPI for the twelve
(12) months preceding the first adjustment. On each
anniversary following, the Base Rent shall be multiplied by
the percentage change in the CPI for the twelve (12) months
preceding. No single increase shall exceed four percent (4%)
of the previous year's Base Rent and in no event shall the new
Base Rent be less than the Base Rent payable for the month
immediately preceding the date for rent adjustment. "Lease
Year", as used herein, shall mean the twelve (12) month period
commencing the Term Commencement Date, and each consecutive
twelve (12) month period thereafter.
B. The Base Rent for the first and third floors of the Building
shall, as of the rent commencement date with respect to each
of such floors, be equal to the then-effective Base Rent for
the second floor. The Base Rent for the first and third floors
shall increase at the same time as the Base Rent increases for
the second floor in accordance with changes in the CPI, as set
forth in Section 5.A of this Lease.
C. Tenant shall pay to Landlord, monthly in advance, in addition
to and concurrently with the payment of Base Rent for the
second floor of the Premises, Base Rent for the floors which
have not yet been tendered to Tenant, in the following
amounts:
(i) Base Rent for the floor which will be tendered to
Tenant in August 1997: Zero Dollars ($0.00).
(ii) Base Rent for the floor which will be tendered to
Tenant in August 1998: One and 25/100 Dollars ($1.25)
per rentable square foot per month commencing August
1, 1997.
6. SECURITY DEPOSIT.
Tenant shall deposit with Landlord the sum of One Hundred Twenty-Five
Thousand Dollars ($125,000.00) upon mutual execution of this Lease by
Landlord and Tenant. 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 1997.
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
one hundred percent (100%) 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 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.
Although 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 to the contrary, the
rent payable by Tenant hereunder shall in no event be less than the
rent specified in Article 5 above.
During the initial term of this Lease, the management costs for the
Building shall not be increased by more than three percent (3%) in any
Lease Year.
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 total Direct Expenses, and Landlord's
xxxxxxxx to Tenant for Direct Expense Adjustments.
Tenant shall have the right to protest any charge to Tenant by Landlord
for Direct 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 Direct
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.
Anything in this Lease to the contrary notwithstanding, during the
first five (5) years of the term of this Lease, Tenant shall pay no
portion of any increase in real estate taxes resulting solely from a
"change of ownership" (as such phrase is defined in California Revenue
and Taxation Code Section 60).
Anything in this Lease to the contrary notwithstanding, Tenant shall
pay its share of increases in real estate taxes within ten (10) days
after Landlord furnishes copies of invoices marked "Paid" for such
taxes, which invoices may be furnished to Tenant no more often than
semi-annually.
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; HAZARDOUS SUBSTANCES.
A. 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 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.
B. Tenant shall not cause or permit the escape, disposal or
release of any biologically or chemically active or other
hazardous substances or materials (a "Release"). Tenant shall
not allow the storage or use of such substances or materials
in any manner not sanctioned by law or by the highest
standards prevailing in the industry for the storage and use
of such substances or materials, nor allow to be brought into
the Building any such materials or substances except to use in
the ordinary course of Tenant's business, and then only after
written notice is given to Landlord of the identity of such
substances or materials. If any lender or governmental agency
requires testing to ascertain whether there has been any
Release, then the reasonable costs thereof shall be reimbursed
by Tenant to Landlord upon demand as additional charges if
such requirement applies to the Premises. In addition Tenant
shall execute affidavits, representations and the like from
time to time at Landlord's reasonable request concerning
Tenant's best knowledge and belief regarding the presence of
hazardous substances or materials on the Premises. In all
events, Tenant shall indemnify Landlord, its agents and
employees from and against any and all clean-up costs and
expenses, losses, damages, claims, or liability for any damage
to any property or injury, illness or death of any person from
any Release on the Premises occurring while Tenant is in
possession, or elsewhere if caused by Tenant or persons acting
under Tenant. The covenants contained herein shall survive the
expiration or earlier termination of this Lease. California
Health and Safety Code Section 25359.7(b) requires any tenant
of real property who knows, or has reasonable cause to
believe, that any release of a hazardous substance has come to
be located on or beneath such real property to give written
notice of such condition to the owner. Tenant shall comply
with the requirements of Section 25359.7(b) and any successor
statute thereto and with all other statutes, laws, ordinances,
rules, regulations and orders of governmental authorities with
respect to hazardous substances.
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. 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 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 Section 11.A. above,
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 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 Section, 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 Section, Landlord agrees to reimburse
Tenant for the reasonable, actual and documented costs of such
repair performed by Tenant, but without any offset 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, Article 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.
A. 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. 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.
B. 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
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 assignment or sublet release Tenant from its
obligations under the terms of this Lease.
C. 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.
D. In the event Tenant desires to assign this Lease or sublet the
Premises for a period in excess of five (5) years (or, if
there are less than five (5) years remaining in the term, for
the entire remaining term of this Lease), Landlord shall have
the option, in Landlord's sole and absolute discretion,
exercisable by giving notice to Tenant at any time within
twenty (20) days after Landlord's receipt of Tenant's notice
to assign or sublet, to terminate this Lease as to the portion
of the Premises which Tenant desires to assign or sublease
(the "Space") as of the date on which Tenant desires to do so,
in which event Tenant shall be relieved of all further
obligations hereunder as to such Space as of the date of
Landlord's notice.
E. In the event Landlord consents to an assignment or subletting,
fifty percent (50%) of any sums or other economic
consideration received by Tenant as a result of such
assignment or subletting (except reasonable leasing
commissions and rental or other payments received which are
attributable to the amortization of the cost of tenant
improvements made to the Space by Tenant, at Tenant's cost)
whether denominated rent or otherwise, which exceed in the
aggregate the total sums which Tenant is obligated to pay
Landlord under this Lease (prorated as to any sublease to
reflect obligations allocable to that portion of the Premises
subject to such sublease) shall be payable to Landlord as
additional rent under this Lease, without affecting or
reducing any other obligation of Tenant hereunder. Tenant
shall deliver to Landlord a statement within thirty (30) days
after the end of each calendar year in which any part of the
Term occurs specifying as to such calendar year, and within
thirty (30) days after the expiration or earlier termination
of the Term, specifying with respect to the elapsed portion of
the calendar year in which such expiration or termination
occurs, each sublease and assignment in effect during the
period covered by such statement and, (i) the date of its
execution and delivery, the number of square feet of the
rentable area demised thereby, and the term thereof; and (ii)
a computation showing the amounts (if any) paid and payable by
Tenant to Landlord pursuant to this Section with respect to
such sublease or assignment.
14. HOLD HARMLESS.
A. 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.
B. 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 with a minimum
combined single limit of bodily injury, personal injury and property
damage coverage of Two Million Dollars ($2,000,000), (2) workers
compensation insurance as required by law, and (3) "all risk" property
insurance on Tenant's above-standard tenant improvements (specifically
those improvements exceeding the Allowance as defined in Exhibit A
hereto), personal property, equipment, furniture and fixtures. The
limit of said insurance shall not, 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.
All the insurance required under this Lease shall:
A. Be issued by insurance companies authorized to do business in
the State of California, with a financial rating of at least
an AAA status as rated in the most recent edition of Best's
Insurance Reports.
B. Be issued as a primary policy.
C. Contain an endorsement requiring thirty (30) days' written
notice from the insurance company to both parties and to
Landlord's lender before cancellation or change in the
coverage, scope, or amount of any policy.
Each policy, and a certificate of the policy, together with evidence of
payment of premiums, shall be deposited with Landlord at the
commencement of the term, and on renewal of the policy not less than
twenty (20) days before expiration of the term of the policy.
17. SERVICES AND UTILITIES.
A. Provided that Tenant is not in default hereunder, Landlord
agrees to furnish to the Premises five- (5-) 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.
B. Tenant shall have twenty-four- (24-) hour per day, seven- (7-)
day per week access to its Premises.
C. Landlord shall provide Tenant a monthly allowance of $.11 per
usable square foot in the Premises (that is, $4,191.55;
$3,984.31 and $4,107.62 for the first, second and third floors
of the Building, respectively) for Tenant's electrical
service. This allowance is included in the Base Rent as
defined in Article 5 of this Lease. Landlord and Tenant
recognize that Tenant's electrical service shall cost in
excess of Eleven Cents ($.11) per square foot per month due to
Tenant's heavy electrical and air conditioning requirements,
and Tenant shall pay any such excess costs for electrical
service.
D. The hours of operation of the heating and air conditioning
system for the Building are as follows:
Monday through 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 this Lease, an override
mechanism shall be installed on the heating and air
conditioning system which services the 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 the
Premises in hours other than the normal Building hours.
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 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.
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 for the Building that Landlord
shall from time to time promulgate. A copy of the current Rules and
Regulations for the Building is attached hereto as Exhibit B. 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 the Building.
20. HOLDING OVER. If Tenant remains in possession after the expiration or
sooner termination of this Lease, all of the terms, covenants and
agreements hereof shall continue to apply and bind Tenant so long as
Tenant remains in possession insofar as the same are applicable, except
that if Tenant remains in possession without Landlord's written consent
(regardless of whether Landlord accepts rent payments in a lesser
amount during such holdover period), the Base Rent shall be one hundred
twenty-five percent (125%) of the Base Rent payable for the last month
of the term, prorated on a daily basis for each day that Tenant remains
in possession, and Tenant shall indemnify Landlord against any and all
claims, losses and liabilities for damages resulting from failure to
surrender possession, including, without limitation, any claims made by
any succeeding tenant. If Tenant remains in possession with Landlord's
written consent, such tenancy shall be from month to month, terminable
by either party on not less than thirty (30) days' written notice.
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, 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.
A. In the event the Premises or the Building of which the
Premises are a part are damaged by fire or other perils
covered by all-risk 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 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.
B. 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.
C. Notwithstanding anything to the contrary contained in this
Article, Landlord shall not have any obligation whatsoever to
repair, reconstruct or restore any 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.
D. Tenant shall repair any injury or damage by fire or other
cause, and make any repairs to or replacements of any
over-standard tenant improvements (specifically those
exceeding Allowance as defined in Exhibit A hereto) or
Tenant's trade fixtures, equipment, furniture or personal
property. Landlord shall have no obligation to make any such
repairs or replacements.
E. 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:
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
Sections 23.A. and 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 a default by Tenant, Landlord, at
any time thereafter, may give a written termination notice to Tenant,
and on the date specified in such notice (which shall be not less than
three (3) days after the giving of such notice), Tenant's right to
possession shall terminate and this Lease shall terminate, unless on or
before such date all sums identified in such three (3) day notice have
been paid by Tenant and all other breaches of this Lease by Tenant at
the time existing shall have been fully remedied to the satisfaction of
Landlord. If Landlord terminates this Lease pursuant to the provisions
of this Section, Landlord shall have all the rights and remedies of a
landlord provided by Section 1951.2 of the California Civil Code or any
successor code section. Upon such termination, in addition to any other
rights and remedies to which Landlord may be entitled under applicable
law, Landlord may recover from Tenant: (a) the worth at the time of
award of the unpaid rent which had been earned at the time of
termination; (b) the worth at the time of award of the amount by which
the unpaid rent which would have been earned after termination until
the time of award exceeds the amount of such rent loss that Tenant
proves could have been reasonably avoided; (c) the worth at the time of
award of the amount by which the unpaid rent for the balance of the
term of this Lease after the time of award exceeds the amount of such
rent loss that Tenant proves could be reasonably avoided; and (d) any
other amount necessary to compensate Landlord for all the detriment
proximately caused by Tenant's failure to perform its obligations under
this Lease or which in the ordinary course of things would be likely to
result therefrom. The "worth at the time of award" of the amounts
referred to in clauses (a) and (b) above shall be computed by allowing
interest at the lesser of (i) twelve percent (12%) per annum, or (ii)
the highest rate permitted by applicable law. The worth at the time of
award of the amount referred to in clause (c) above shall be computed
by discounting such amount at a rate equal to the discount rate of the
Federal Reserve Board of San Francisco at the time of award plus one
percent (1%).
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. ESTOPPEL CERTIFICATE. At any time and from time to time, but in no
event on less than ten (10) days prior written request by Landlord,
Tenant shall execute, acknowledge and deliver to Landlord, promptly
upon request, a certificate certifying: (a) that Tenant has accepted
the Premises (or, if Tenant has not done so, that Tenant has not
accepted the Premises, and specifying the reasons therefor); (b) the
commencement and expiration dates of this Lease; (c) whether there are
then existing any defaults by Landlord in the performance of its
obligations under this Lease (and, if so, specifying the same); (d)
that this Lease is unmodified and in full force and effect (or, if
there have been modifications, that this Lease is in full force and
effect, as modified, and stating the date and nature of each
modification); (e) the capacity of the person executing such
certificate, and that such person is duly authorized to execute the
same on behalf of Tenant; (f) the date, if any, to which rent and other
sums payable hereunder have been paid; (g) that no notice has been
received by Tenant of any default which has not been cured, except as
to defaults specified in the certificate; (h) the amount of any
security deposit and prepaid rent; and (i) such other matters as may be
reasonably requested by Landlord. Any such certificate may be relied
upon by any prospective purchaser, mortgagee or beneficiary under any
deed of trust affecting the Building or any part thereof.
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. Tenant agrees that, after the effective date of this Lease,
at Landlord's option, Landlord may construct (in conjunction with the
construction of a third building adjacent to the Building and for
Regency I) a parking structure in portions of the common areas
currently used for grade-level parking, provided the parking ratios are
not thereby reduced. Tenant acknowledges that the parking facilities
for the Building, for Regency I and for the property adjacent thereto
commonly known as the Regency Theater are subject to an existing
written reciprocal parking rights agreement.
28. COMMUNICATIONS INSTALLATION. Tenant may install certain communications
equipment on the roof of the Building in compliance with applicable
law. On or before the Term Expiration Date or earlier termination of
this Lease, Tenant, at Tenant's sole cost and expense, shall remove
such communications equipment and shall, forthwith and with all due
diligence, repair any damage to the Premises or the Building caused by
such removal.
29. AUTHORITY OF PARTIES; LIMITATION
A. Authority. Each individual executing this Lease on behalf of
either party represents and warrants that he or she is duly
authorized to execute and deliver this Lease on behalf of such
party.
B. Limitation of Liability. It is understood and agreed that any
recovery made upon any claim by Tenant against Landlord shall
be limited solely to Landlord's ownership interest of Landlord
in the Building, and furthermore, Tenant expressly waives any
and all rights to proceed against the other assets of
Landlord, or against any trustee, employee, partner,
shareholder, director or agent of Landlord.
30. GENERAL PROVISIONS.
A. 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 by this reference made a part hereof.
B. 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.
C. 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.
D. Joint Obligation. If there be more than one Tenant the
obligations hereunder imposed upon Tenants shall be joint and
several.
E. 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.
F. Time. Except with respect to the delivery of the Premises to
Tenant, time is of the essence of this Lease and each and all
of its provisions in which performance is a factor.
G. 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.
H. Recordation. Neither Landlord nor Tenant shall record this
Lease or a short form memorandum hereof without the prior
written consent of the other party.
I. 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.
J. Hazardous Materials. Landlord hereby represents that, to the
best of Landlord's actual knowledge, there are no hazardous or
toxic materials on the real property on which the Building and
Regency I are located, nor, to the best of Landlord's actual
knowledge, have any hazardous or toxic materials been removed
from such real property. Notwithstanding the foregoing, Tenant
has been advised and is aware that property adjacent to the
Building has previously been used as a sanitary landfill.
K. 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 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 five (5%) 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.
L. 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.
M. 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.
N. Attorneys' 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 attorneys' fees.
O. 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.
P. Subordination and Attornment. Landlord represents and warrants
to Tenant that, as of the date hereof, no person or entity
holds a mortgage or deed of trust affecting the Premises or
the Building. Upon request of the Landlord, Tenant will in
writing subordinate its rights hereunder to the lien of any
first mortgage or deed of trust to any bank, insurance company
or other lending institution, now or hereafter in force
against the real property and Building of which the Premises
are a part, and upon any buildings hereafter placed upon the
real property 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
perform all of the provisions of this Lease, unless this Lease
is otherwise terminated pursuant to its terms.
Q. Foreclosure. 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.
R. Name. Tenant shall not use the name of the Building or of the
development in which the Building is situated and is a part
for any purpose other than as an address of the business to be
conducted by the Tenant in the Premises.
S. Separability. Any provision of this Lease which shall prove to
be invalid, void or illegal shall in no way affect, impair or
invalidate any other provision hereof and such other provision
shall remain in full force and effect.
T. 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.
U. Choice of Law. This Lease shall be governed by the laws of the
State of California.
V. Signs and Auctions. Tenant shall not place any sign upon the
Premises or the Building or conduct any auction thereon
without Landlord's prior written consent.
31. BROKERS. Tenant warrants that it has had no dealings with any real
estate brokers or agents in connection with the negotiation of this
Lease and Tenant knows no real estate broker or agent who is entitled
to a commission in connection with this Lease.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease on the dates
set forth below and this Lease shall be effective on the later of such dates.
REGENCY CENTER, FAIR, XXXXX AND COMPANY,
A CALIFORNIA GENERAL INCORPORATED,
PARTNERSHIP A DELAWARE CORPORATION
BY: /S/ XXXXXX XXXX BY: /S/ XXXXXX de KERCHOVE
ITS: GENERAL PARTNER ITS: EXECUTIVE VICE PRESIDENT
DATE: NOVEMBER 22, 1996 DATE: NOVEMBER 18, 1996
