EXHIBIT 10.4
PLEASE SIGN AND RETURN
----------------------
PLEASE SIGNIFY YOUR APPROVAL ON ALL
SPACES PROVIDED AND RETURN TO YOUR
--------------
ASSET MANAGER FOR FULL EXECUTION.
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YOUR "TENANT" COPY WILL THEN BE
RETURNED TO YOU.
THANK YOU
XXXX MARKETING GROUP
OFFICE BUILDING LEASE
BETWEEN
XXXX CENTER NEWPORT NUMBER 8
LANDLORD
AND
TIEMPO ESCROW II
-----------------------------------
TENANT
JULY 10 1990
---------------------, --
TABLE OF CONTENTS
Page
1. Term..................................................... 1
2. Possession............................................... 1
3. Annual Basic Rent........................................ 1
4. Rental Adjustment........................................ 2
5. Security Deposit......................................... 3
6. Use...................................................... 3
7. Notices.................................................. 3
8. Brokers.................................................. 3
9. Holding Over............................................. 3
10. Taxes on Tenant's Property............................... 4
11. Condition of Premises.................................... 4
12. Alterations.............................................. 4
13. Repairs.................................................. 4
14. Liens.................................................... 5
15. Entry by Landlord........................................ 5
16. Utilities and Services................................... 5
17. Bankruptcy............................................... 5
18. Indemnification.......................................... 6
19. Damage to Tenant's Property.............................. 6
20. Tenant's Insurance....................................... 6
21. Damage or Destruction.................................... 7
22. Eminent Domain........................................... 8
23. Defaults and Remedies.................................... 8
24. Assignment and Subletting................................ 9
25. Subordination............................................ 9
26. Estoppel Certificate..................................... 10
27. Building Planning........................................ 10
28. Rules and Regulations.................................... 10
29. Conflict of Laws......................................... 10
30. Successors and Assigns................................... 10
31. Surrender of Premises.................................... 10
32. Attorneys' Fees.......................................... 11
33. Performance by Tenant.................................... 11
34. Mortgagee Protection..................................... 11
35. Definition of Landlord................................... 11
36. Waiver................................................... 11
37. Identification of Tenant................................. 11
38. Parking.................................................. 12
39. Terms and Headings....................................... 12
40. Examination of Lease..................................... 12
41. Time..................................................... 12
42. Prior Agreement; Amendments.............................. 12
43. Separability............................................. 12
44. Recording................................................ 12
45. Consents................................................. 12
46. Limitation on Liability.................................. 12
47. Riders................................................... 12
48. Modification for Lender.................................. 13
49. Airport Disclosure....................................... 13
i
TABLE OF EXHIBITS
EXHIBIT ITEM
A Floor Plan of the Premises
B Work Letter Agreement
C Standards for Utilities and Services
D Rules and Regulations
E Parking Rules and Regulations
ii
XXXX CENTER NEWPORT NUMBER 8
OFFICE BUILDING LEASE
THIS LEASE is made as of the 10th day of July, 1990, by and between XXXX
CENTER NEWPORT NUMBER 8, a California Limited Partnership ("Landlord"), and
Tiempo Escrow II, A California Corporation. ("Tenant")
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
Suite Number 175 (the "Premises") outlined on the floor plan attached hereto and
marked Exhibit A, the Premises being agreed, for the purposes of this Lease, to
have an area of approximately 4,236 rentable square feet and being situated on
the ground floor(s) of that certain office building located at 0000 XxxXxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx (the "Building").
[INITIAL APPEARS HERE]
The parties hereto agree that said letting and hiring is upon and
subject to the terms, covenants and conditions herein set. 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 for which Tenant is liable and that
this Lease is made upon the condition of such performance.
Prior to the commencing of the term of this Lease the Premises shall be
improved by the Tenant improvements described in the Work Letter marked Exhibit
B attached hereto and by this reference incorporated herein.
1. TERM
The term of this Lease shall be for five (5) years commencing upon the
earlier of:
(i) Substantial completion of the Tenant Improvements described
in the Work Letter (subject to the provisions of Paragraph 7 of the Work Letter)
and the tender of possession of the premises to Tenant or
(ii) The date that Tenant opens for business in the Premises, and
ending on the last day of the month in which the 6th anniversary of the
commencement date occurs, unless such term shall be sooner terminated as
hereinafter provided. As soon as the commencement date is determined, the
parties shall enter into an amendment of this Lease setting forth the precise
commencement and termination dates of this Lease. Failure to enter into such an
amendment, however, shall not affect Tenant's liability hereunder. Reference in
this Lease to a "Lease Year" shall mean each successive twelve month period
commencing with the first day of the month in which the term of this Lease
commences.
2. POSSESSION
Tenant agrees that, if Landlord is unable to deliver possession of the
Premises to Tenant on the scheduled commencement of the term of this Lease, this
Lease shall not be void or voidable, nor shall Landlord be liable to Tenant for
any loss or damage resulting therefrom, but in such event Tenant shall not be
liable for any rent until Landlord tenders possession of the Premises to Tenant
with the Tenant improvements substantially completed. If Landlord completes
construction of the Tenant Improvements prior to the date scheduled in the Work
Letter, Landlord shall deliver possession of the Premises to Tenant upon such
completion and the term of the Lease shall thereupon commence.
[INITIAL APPEARS HERE]
3. ANNUAL BASIC RENT
(a) Tenant agrees to pay Landlord as Annual Basic Rent for the Premises
the sum of (SEE ADDENDUM, ITEM #50 AND #51) -------------------------------
Dollars ($ ____________________________) (subject to adjustment as hereinafter
provided) in twelve equal monthly installments of (SEE ADDENDUM, ITEM #50 AND
#51) ---------------------------- Dollars ($ ___________________) each, in
advance on the first day of each calendar month during the term, except that the
first month's rent shall be paid upon the execution hereof. If the term of this
Lease commences or ends on a day other than the first day of a calendar month,
then the rental for such period shall be prorated in the proportion that the
number of days this Lease is in effect during such period bears to thirty. In
addition to the Annual Basic Rent, Tenant agrees to pay as additional rental the
amount of rental adjustments and other charges required by this Lease. All
rental shall be paid to Landlord, without prior demand and without any deduction
or offset, in lawful money of the United States of America, at the address of
Landlord designated at the end of this Lease or to such other person or at such
other place as Landlord may from time to time designate in writing.
1
[INITIAL APPEARS HERE]
(c) Late Charges. In the event Tenant fails to pay any installment of
rent when due or in the event Tenant fails to make any other payment for which
Tenant is obligated under this Lease when due, then Tenant shall pay to Landlord
a late charge equal to 5% of the amount due to compensate Landlord for the extra
costs incurred as a result of such late payment.
4. RENTAL ADJUSTMENT.
(a) For the purpose of this Article 4, the following terms are defined as
follows:
(i) Tenant's Percentage: That portion of the Building occupied by
Tenant divided by the total square footage of the Building available for
occupancy, which result is the following percentage: 3.7476 %.
----------
(ii) Direct Expenses Base: The amount of the annual Direct
Expenses which Landlord has included in Annual Base Rent which amount is
$ 1990 Base Year * per square foot, for a total of $ 1990 Base Year *
---------------------- -----------------------
*(SEE ADDENDUM, ITEM #52.) [INITIAL APPEARS HERE]
(iii) Direct Expenses: The term "Direct Expenses" shall include:
(1) All real and personal property taxes and assessments
imposed by any governmental authority or agency on the Building and the land on
which the Building is located (including a prorata portion of any taxes levied
on any common areas): any assessments levied in lieu of taxes: any
non-progressive tax on or measured by gross rentals received from the rental of
space in the Building; and any other costs levied or assessed by, or at the
direction of, any federal, state, or local government authority in connection
with the use or occupancy of the Premises or the parking facilities serving the
Premises; any tax on this transaction or any document to which Tenant is a
party creating or transferring an interest in the Premises, and any expenses,
including cost of attorneys or experts, reasonably incurred by Landlord in
seeking reduction by the taxing authority of the above-referenced taxes, less
tax refunds obtained as a result of an application for review thereof; but
shall not include any net income, franchise, capital stock, estate or
inheritance taxes.
(2) Operating costs consisting of costs incurred by Landlord
in maintaining and operating the Building, exclusive of costs required to be
capitalized for federal income tax purposes, and including (without limiting the
generality of the foregoing) the following: cost of utilities, supplies and
insurance, cost of services of independent contractors, managers and other
suppliers, the fair rental value of the Building office, cost of compensation
(including employment taxes and fringe benefits) of all persons who perform
regular and recurring duties connected with the management, operation,
maintenance, and repair of the Building, its equipment, parking facilities and
the common areas, including, without limitation, engineers, janitors, foremen,
floor waxers, window washers, watchmen and gardeners, but excluding persons
performing services not uniformly available to or performed for substantially
all Building tenants.
(3) Amortization of such capital improvements as Landlord may
have installed: (a) for the purpose of reducing operating costs and (b) to
comply with governmental rules and regulations promulgated after completion of
the Building.
(b) If Tenants Percentage of the Direct Expenses paid or incurred by
Landlord for any calendar years exceeds the Direct Expenses Base included in
Tenants rent, then Tenant shall pay such excess as additional rent. As soon as
possible after the beginning of each calendar year, Landlord shall give to
Tenant a statement of any additional rent payable by Tenant hereunder for the
previous year, which shall be due and payable upon receipt. In addition, for
each year after the first calendar year, or portion thereof, Tenant shall pay
its percentage of Landlord's estimate of the amount by which Direct Expenses for
that year shall exceed the Direct Expenses Base. This estimated amount shall be
divided into twelve equal monthly installments. 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 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 calendar year's statement is rendered. If, in any calendar year, Tenant's
Percentage of actual Direct Expenses is less than the estimate for that year,
then upon receipt of Landlord's statement, any overpayment made by Tenant on the
monthly installment basis shall be credited towards the next monthly rent
falling due and the estimated monthly installments of Tenant's Percentage of
Direct Expenses shall be adjusted to reflect such lower Direct Expenses for the
most recent year.
2
(c) Even though the term has expired and Tenant has vacated the Premises,
when the final determination is made of Tenant's Percentage 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 rebated by Landlord to Tenant.
5. SECURITY DEPOSIT.
Tenant has deposited with landlord the sum of Six Thousand Nine Hundred
Eighty-nine and 40/100 Dollars
($6,989.40). Said sum shall be held by Landlord as security for the faithful
performance by Tenant of all of Tenant's obligations hereunder. 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 other amount which Landlord may spend or become obligated to spend by
reason of Tenant's default or to compensate Landlord for any other loss or
damage which Landlord for any other loss or damage which Landlord may suffer by
reason of Tenant's default. If any portion of the deposit is so used or
applied, Tenant shall, upon demand, deposit cash with Landlord in an amount
sufficient to restore the security deposit to its original amount. Tenants
failure to do so shall be a material breach of this Lease. Landlord shall not
be required to keep this security separate from its general funds, and Tenant
shall not be entitled to interest on such deposit. If Tenant shall fully and
faithfully perform all of its obligations under this lease, 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, provided that Landlord may retain the security deposit until such time as
any amount due from Tenant in accordance with Article 4 hereof has been
determined and paid in full.
6. USE.
Tenant shall use the Premises for Escrow offices or other office use
consistent with other Class "A" office use within Xxxx Center Newport and shall
not use or permit the Premises to be used for any other purpose without the
prior written consent of Landlord. Nothing contained herein shall be deemed to
give Tenant any exclusive right to such use in the Building. Tenant shall not
use or occupy the Premises in violation of law or of the certificate of
occupancy issued for the Building, and shall, upon written notice from Landlord,
discontinue any use of the Premises which is declared by any governmental
authority having jurisdiction to be a violation of law or of said certificate of
occupancy. Tenant shall comply with any direction of any governmental authority
having jurisdiction which shall, by reason of the nature of Tenants use or
occupancy of the Premises, impose any duty upon Tenant or Landlord with respect
to the Premises or with respect to the use or occupation thereof. Tenant shall
not do or permit to be done anything which will invalidate or increase the cost
of any fire, extended coverage or any other insurance policy covering the
Building and/or property located therein and shall comply with all rules,
orders, regulations and requirements of the Pacific Fire Rating Bureau or any
other organization performing a similar function. Tenant shall promptly, upon
demand, reimburse Landlord for any additional premium charged for such policy by
reason of Tenants failure to comply with the provisions of this Article. 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, or injure or annoy them, or use or allow the Premises to be
used for any improper, immoral, unlawful or objectionable purpose, nor shall
Tenant cause, maintain or permit any nuisance in, on or about the Premises.
Tenant shall not commit or suffer to be committed any waste in or upon the
Premises.
7. NOTICES.
Any notice required or permitted to be given hereunder must be in writing
and may be given by personal delivery or by mail, and if given by mail shall be
deemed sufficiently given if sent by registered or certified mail addressed to
Tenant at the Building, or to Landlord at its address set forth at the end of
this Lease. Either party may specify a different address for notice purposes by
written notice to the other except that the Landlord may in any event use the
Premises as Tenants address for notice purposes.
8. BROKERS.
Tenant warrants that it has had no dealings with any real estate broker or
agent in connection with the negotiation of this Lease, except Xxxxx & Xxxxx
Company -Xxxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxxxx whose commission shall be
payable by Landlord, and that it knows of no other real estate broker or agent
who is or might be entitled to a commission in connection with this Lease. If
Tenant has dealt with any other person or real estate broker with respect to
leasing or renting space in the Building, Tenant shall be solely responsible for
the payment of any fee due said person or firm and Tenant shall hold Landlord
free and harmless against any liability in respect thereto, including attorneys'
fees and costs.
9. HOLDING OVER.
If Tenant holds over after the expiration or earlier termination of the
term hereof without the express written consent of Landlord, Tenant shall become
a Tenant at sufferance only, at a rental rate equal to one hundred fifty percent
of the rent in effect upon the date of such expiration (subject to adjustment as
provided in Paragraph 4 hereof and prorated on a daily basis), and otherwise
subject to the terms, covenants and conditions herein specified, so far as
applicable. Acceptance by Landlord of rent after such expiration or earlier
3
termination shall not result in a renewal of this Lease. The foregoing
provisions of this Article 9 are in addition to and do not affect
Landlord's right of re-entry or any rights of Landlord hereunder or as
otherwise provided by law. If Tenant fails to surrender the Premises upon
the expiration of this Lease despite demand to do so by Landlord, Tenant
shall idemnify and hold Landlord harmless from all loss of liability,
including without limitation, any claim made by any succeeding tenant
founded on or resulting from such failure to surrender and any attorneys'
fees and costs.
10. TAXES ON TENANT'S PROPERTY.
(a) Tenant shall be liable for and shall pay, at least ten days
before delinquency, all taxes levied against any personal property or trade
fixtures placed by Tenant in or about the Premises. If any such taxes on
Tenant's personal property or trade fixtures are levied against Landlord or
Landlord's property or if the assessed value of the Premises is increased
by the inclusion therein of a value placed upon such personal property or
trade fixtures of Tenant and if Landlord, after written notice to Tenant,
pays the taxes based upon such increased assessment which Landlord shall
have the right to do regardless of the validity thereof, but only under
proper protest if requested by Tenant, Tenant shall, upon demand, repay to
Landlord the taxes so levied against Landlord, or the portion of such taxes
resulting from such increase in the assessment.
(b) If the Tenant Improvements in the Premises, whether installed,
and/or paid for by Landlord or Tenant and whether or not affixed to the
real property so as to become a part thereof, are assessed for real
property tax purposes at a valuation higher than the valuation at which
Tenant Improvements conforming to Landlord's "Building Standard" in other
space in the Building are assessed, then the real property taxes and
assessments levied against the Building by reason of such excess assessed
valuation shall be deemed to be taxes levied against personal property of
Tenant and shall be governed by the provisions of paragraph 10(a), above.
If the records of the County Assessor are available and sufficiently
detailed to serve as a basis for determining whether said Tenant
Improvements are assessed at a higher valuation than Landlord's "Building
Standard," such records shall be binding on both the Landlord and the
Tenant. If the records of the County Assessor are not available or
sufficiently detailed to serve as a basis for making said determination,
the actual cost of construction shall be used.
11. CONDITION OF PREMISES.
Tenant acknowledges that neither Landlord nor any agent of Landlord
has made any representation or warranty with respect to the Premises or the
Building or with respect to the suitability of either for the conduct of
Tenant's business. The taking of possession of the Premises by Tenant shall
conclusively establish that the Premises and the building were in
satisfactory condition at such time.
12. ALTERATIONS.
(a) Tenant shall make no alterations, additions or improvements in
or to the Premises without Landlord's prior written consent, and then only
by contractors or mechanics approved by Landlord. Tenant agrees that there
shall be no construction of partitions or other obstructions which might
interfere with Landlord's free access to mechanical installations or
service facilities of the Building or interfere with the moving of
Landlord's equipment to or from the enclosures containing said
installations or facilities. All such work shall be done at such times and
in such manner as Landlord may from time to time designate. Tenant
covenants and agrees that all work done by Tenant shall be performed in
full compliance with all laws, rules, orders, ordinances, regulations and
requirements of all governmental agencies, offices, and boards having
jurisdiction, and in full compliance with the rules, regulations and
requirements of the Pacific Fire Rating Bureau, and of any simular body.
Before commencing any work, Tenant shall give Landlord at least ten days
written notice of the proposed commencement of such work and shall, if
required by Landlord, secure at Tenant's own cost and expense, a completion
and lien indemnity bond, satisfactory to Landlord, for said work. Tenant
further covenants and agrees that any mechanic's lien filed against the
Premises or against the Building for work claimed to have been done for, or
materials claimed to have been furnished to, Tenant will be discharged by
Tenant, by bond or otherwise, within ten days after the filing thereof, at
the cost and expense of Tenant. All alterations, additions or improvements
upon the Premises made by either party, including (without limiting the
generality of the foregoing) all wallcovering, built-in cabinet work,
paneling and the like, shall, unless Landlord elects otherwise, become the
property of Landlord, and shall remain upon, and be surrendered with the
Premises, as a part thereof, at the end of the term hereof, except that
Landlord may, by written notice to Tenant, require Tenant to remove all
partitions, counters, railings and the like installed by Tenant, and Tenant
shall repair all damage resulting from such removal or, at Landlord's
options, shall pay to Landlord all costs arising from such removal.
(b) All articles of personal property and all business and trade
fixtures, machinery and equipment, furniture and movable partitions owned
by Tenant or installed by Tenant at its expense in the Premises shall be
and remain the property of Tenant and may be removed by Tenant at any time
during the lease term when Tenant is not in default hereunder. If Tenant
shall fail to remove all of its effects from the Premises upon termination
of this Lease for any cause whatsoever, Landlord may, at its option,
remove the same in any manner that Landlord shall choose, and store said
effects without liability to Tenant for loss thereof. In such event, Tenant
agrees to pay Landlord upon demand any and all expenses incurred in such
removal, including court costs and attorneys' fees and storage charges on
such effects for any length of time that the same shall be in Landlord's
possession. Landlord may, at its option, without notice, sell said effects,
or any of the same, at private sale and without legal process, for such
price as Landlord may obtain and apply the proceeds of such sale upon any
amounts due under this Lease from Tenant to Landlord and upon the expense
incident to the removal and sale of said effects.
13. REPAIRS.
(a) By entry hereunder, Tenant accepts the Premises as being in good
and sanitary order, condition and repair. Tenant shall keep, maintain and
preserve the Premises in first class condition and repair, and shall, when
and if needed, at Tenant's sole cost and expense, make all repairs to the
Premises and every part thereof. Tenant shall, upon the expiration or
sooner termination of the term hereof,
4
surrender the Premises to Landlord in the same condition as when received,
usual and ordinary wear and tear excepted. Landlord shall have no
obligation to alter, remodel, improve, repair, decorate or paint the
Premises or any part thereof. 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) Anything contained in Paragraph 13(a) above to the contrary
notwithstanding. Landlord shall repair and maintain the structural portions
of the Building, including the basic plumbing, heating, ventilating, air
conditioning and electrical systems installed or furnished by Landlord,
unless such maintenance and repairs are caused in part or in whole by the
act, neglect, or omission of any duty by Tenant, its agents, servants,
employees or invitees, in which case Tenant shall pay to Landlord, as
additional rent, 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 21 hereof, there shall be no abatement of rent and no liability of
Landlord by reason of any injury to or interference with Tenant's business
arising from the making of any repairs, alterations or improvements in or
to any portion of the Building or the Premises or in or to 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.
14. LIENS.
Tenant shall not permit any mechanic's, matenalmen's or other liens
to be filed against the Building nor against Tenant's leasehold interest in
the Premises. Landlord shall have at all reasonable times to post and keep
posted on the Premises any notices which it deems necessary for protection
from such liens. If any such liens are filed, Landlord may, without waiving
its rights and remedies based on such breach of Tenant and without
releasing Tenant from any of its obligations, cause such liens to be
released by any means shall deem proper, including payments in satisfaction
of the claim giving rise to such lien. Tenant shall pay to Landlord at
once, upon notice by Landlord, any sum paid by Landlord to remove such
liens, together with interest at the maximum rate per annum permitted by
law from the date of such payment by Landlord.
15. ENTRY BY LANDLORD.
Landlord reserves and shall at any and all times have the right to
enter the Premises to inspect the same, to supply janitor service and any
other service to be provided by Landlord to Tenant hereunder, to show the
Premises to prospective purchasers or tenants, to post notices of
nonresponsibility, to alter, improve or repair the Premises or any other
portion of the Building, all without being deemed guilty of any eviction of
Tenant and without abatement of rent. Landlord may, in order to carry out
such purposes, erect scaffolding and other necessary structures where
reasonably required by the character of the work to be performed, provided
that the business of Tenant shall be interfered with as little as is
reasonably practicable. Tenant hereby waives any claim for damages for any
injury or inconvenience to or interference with Tenant's business, any loss
of occupancy or quiet enjoyment of the Premises, and any other loss in,
upon and about the Premises. Landlord shall at all times have and retain a
key with which to unlock all doors in the Premises, excluding Tenant's
vaults and safes. Landlord shall have the right to use any and all means
which Landlord may deem proper to open said doors in an emergency in order
to obtain entry to the Premises. Any entry to the Premises obtained by
Landlord by any of said means, or otherwise, shall not be construed or
deemed to be a forcible or unlawful entry into the Premises, or an eviction
of Tenant from the Premises or any portion thereof, and any damages caused
on account thereof shall be paid by Tenant. It is understood and agreed
that no provision of this Lease shall be construed as obligating Landlord
to perform any repairs, alterations or decorations except as otherwise
expressly agreed herein by Landlord.
16. UTILITIES AND SERVICES.
Provided that Tenant is not in default under this Lease, Landlord
agrees to furnish or cause to be furnished to the Premises the utilities
and services described in the Standards for Utilities and Services,
attached hereto as Exhibit C, subject to the conditions and in accordance
with the standards set forth therein. Landlord's failure to furnish any of
the foregoing items when such failure is caused by:
(i) Accident, breakage, or repairs,
(ii) Strikes, lockouts or other labor disturbance or labor
dispute of any character,
(iii) Governmental regulation, moratorium or other
governmental action,
(iv) Inability despite the exercise of reasonable diligence
to obtain electricity, water or fuel, or by
(v) Any other cause beyond Landlord's reasonable control,
shall not result in any liability to Landlord. In addition, Tenant shall
not be entitled to any abatement or reduction of rent by reason of such
failure, no eviction of Tenant shall result from such failure and Tenant
shall not be relieved from the performance of any covenant or agreement in
this Lease because of such failure. In the event of any failure, stoppage
or interruption thereof, Landlord shall diligently attempt to resume
service promptly.
17. BANKRUPTCY.
If Tenant shall file a petition in bankruptcy under any provision of
the Bankruptcy Code as then in effect, or if Tenant shall be
5
adjudicated a bankrupt in involuntary bankruptcy proceedings and such
adjudication shall not have been vacated within thirty days from the date
thereof or if a receiver or trustee shall be appointed of Tenant's property and
the order appointing such receiver or trustee shall not be set aside or vacated
within thirty days after the entry thereof, or if Tenant shall assign Tenant's
estate or effects for the benefit of creditors, or if this Lease shall, by
operation of law or otherwise, pass to any person or persons other than Tenant,
then in any such event Landlord may terminate this Lease, if Landlord so elects,
with or without notice of such election and with or without entry or action by
Landlord. In such case, notwithstanding any other provisions of this Lease,
Landlord, in addition to any and all rights and remedies allowed by law or
equity, shall, upon such termination, be entitled to recover damages in the
amount provided in Paragraph 23(b) hereof. Neither Tenant nor any person
claiming through or under Tenant or by virtue of any statute or order of any
court shall be entitled to possession of the Premises but shall surrender the
Premises to Landlord. Nothing contained herein shall limit or prejudice the
right of Landlord to recover damages by reason of any such termination equal to
the maximum allowed by any statute or rule of law in effect at the time when and
governing the proceedings in which, such damages are to be proved; whether or
not such amount is greater, equal to, or less than the amount of damages
recoverable under the provisions of this Article 17.
18. INDEMNIFICATION.
Tenant shall indemnify, defend and hold Landlord harmless from all claims
arising from Tenants use of the Premises or the conduct or its business or from
any activity, work, or thing done, permitted or suffered by Tenant in or about
the Premises. Tenant shall further indemnify, defend and hold Landlord harmless
from all claims arising from any breach or default in the performance of any
obligation to be performed by Tenant under the terms of this Lease, or arising
from any act, neglect, fault or omission of Tenant or of its agents or
employees, and from and against all costs, attorneys' fees, expenses and
liabilities incurred in or about such claim or any action or proceeding brought
thereon. In case any action or proceeding shall be brought against Landlord by
reason of any such claim, Tenant upon notice from Landlord shall defend the
same at Tenant's expense by counsel approved in writing by Landlord. Tenant, as
a material part of the consideration to Landlord, hereby assunes all risk of
damage to property or injury to person in, upon or about the Premises from any
cause whatsoever except that which is caused by the failure of Landlord to
observe any of the terms and conditions of this Lease where such failure has
persisted for an unreasonable period of time after written notice of such
failure. Tenant hereby waives all its claims in respect thereof against
Landlord.
19. DAMAGE TO TENANT'S PROPERTY.
Notwithstanding the provisions of Article 18 to the contrary, Landlord or
its agents shall not be liable for (i) any damage to any property entrusted to
employees of the Building, (ii) loss or damage to any property by theft or
otherwise, (iii) any injury or damage to persons or property resulting from
fire, explosion, falling plaster, steam, gas, electricity, water or rain which
may leak from any part of the Building or from the pipes, appliances or plumbing
work therein or from the roof, street or sub-surface or from any other place or
resulting from dampness or (iv) any other cause whatsoever. Landlord or its
agents shall not be liable for interference with light or other incorporeal
heraditaments, 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.
20. TENANT'S INSURANCE.
(a) Tenant shall, during the term hereof and any other period of
occupancy, at its sole cost and expense, keep in full force and effect the
following insurance:
(i) Standard form property insurance insuring against the pents of
fire; extended coverage, vandalism, malicious mischief, special extended
coverage ("All-Risk") and sprinkler leakage. This insurance policy shall be upon
all property owned by Tenant, for which Tenant is legally liable or that was
installed at Tenant's expense, and which is located in the Building including,
without limitation, furniture, fittings, installations, fixtures (other than
Tenant improvements installed by Landlord), and any other personal property, in
an amount not less than ninety percent of the full replacement cost thereof. In
the event that there shall be a dispute as to the amount which comprises full
replacement cost, the decision of Landlord or any mortgagees of Landlord shall
be conclusive. This insurance policy shall also be upon direct or indirect loss
of Tenant's earnings attributable to Tenant's inability to use fully or obtain
access to the Premises or Building in an amount as will properly reimburse
Tenant. Such policy shall name Landlord and any mortgagees of Landlord as
insured parties, as their respective interests may appear.
(ii) Comprehensive General Liability insurance insuring Tenant
against any liability arising out of the lease, use, occupancy or maintenance of
the Premises and all areas appurtenant thereto. Such insurance shall be in the
amount of $1,000,000 Combined Single Limit for injury to, or death of one or
more persons in an occurrence, and for damage to tangible property (including
loss of use) in an occurrence, with such liability amount to be adjusted from
year to year to reflect increases in the Consumer Price Index. The policy shall
insure the hazards of premises and operations, independent contractors,
contractual liability (covering the indemnity contained in Paragraph 20 hereof)
and shall (1) name Landlord as an additional insured, (2) contain a cross
liability provision, and (3) contain a provision that the insurance provided the
Landlord hereunder shall be primary and non-contributing with any other
insurance available to the Landlord.
(iii) Workmen's Compensation and Employer's Liability insurance (as
required by State Law).
(iv) Any other form or forms of insurance as Tenant or Landlord or
any mortgagees of Landlord may reasonably require from time to time in form, in
amounts and for insurance risks against which a prudent tenant would protect
itself.
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(b) All policies shall be written in a form satisfactory to Landlord and
shall be taken out with insurance companies holding a General Policyholders
Rating of "A" and a Financial Rating of "X" or better, as set forth in the most
current issue of Best Insurance Guide. Within ten days after the execution of
this Lease, Tenant shall deliver to Landlord copies of policies or certificates
evidencing the existence of the amounts and forms of coverage satisfactory to
Landlord. No such policy shall be cancellable and deducible in coverage except
after thirty days prior written notice to Landlord. Tenant shall, within ten
days prior to the expiration of such policies, furnish Landlord with renewals or
"binders" thereof, or Landlord may order such insurance and charge the cost
thereof to Tenant as additional rent. If Landlord obtains any insurance that is
the responsibility of Tenant under this section. Landlord shall deliver to
Tenant a written statement selling forth the cost of any such insurance and
showing in reasonable detail the manner in which it has been computed.
21. DAMAGE OR DESTRUCTION.
(a) In the event the Building and/or the Premises is damaged by fire or
other perils covered by Landlord's insurance, Landlord shall:
(i) In the event of total destruction, at Landlord's option, as soon
as reasonably possible thereafter, commence repair, reconstruction and
restoration of the Building and/or the Premises and prosecute the same
diligently to completion, in which event this Lease shall remain in full force
and effect; or within ninety days after such damage, elect not to so repair,
reconstruct or restore the Building and/or the Premises, in which event this
Lease shall terminate. In either event, Landlord shall give Tenant written
notice of its intention within said ninety day period. In the event Landlord
elects not to restore the Building and/or the
Premises, this Lease shall be deemed to have terminated as to the date of such
total destruction.
(ii) In the event of a partial destruction of the Building and/or the
Premises, to an extent not exceeding twenty-five percent of the full insurable
value thereof, and if the damage thereto is such that the Building and/or the
Premises may be repaired, reconstructed or restored within a period of ninety
days from the date of the happening of such casualty and if Landlord will
receive insurance proceeds sufficient to cover the cost of such repairs, then
Landlord shall commence and proceed diligently with the work of repair,
reconstruction and restoration and this Lease shall continue in full force and
effect. If such work of repair, reconstruction and restoration shall require a
period longer than ninety days or exceeds twenty-five percent of the full
insurable value thereof, or if said insurance proceeds will not be sufficient to
cover the cost of such repairs, then Landlord either may elect to so repair,
reconstruct or restore and the Lease shall continue in full force and effect or
Landlord may elect not to repair, reconstruct or restore and the Lease shall
then terminate. Under any of the conditions of this Subparagraph 21(a)(ii),
Landlord shall give written notice to Tenant of its intention within said ninety
day period. In the event Landlord elects not to restore the Building and/or the
Premises, this Lease shall be deemed to have terminated as of the date of such
partial destruction.
(b) Upon any termination of this Lease under any of the provisions of
this Article 21, the parties shall be released without further obligation to the
other from the date possession of the Premises is surrendered to Landlord except
for items which have therefore accrued and are then unpaid.
(c) In the event of repair reconstruction and restoration by Landlord as
herein provided, the rental payable under this Lease shall be abated
proportionately with the degree to which Tenant's use of the Premises is
impaired during the period of such repair, reconstruction or restoration.
Tenant shall not be entitled to any compensation or damages for loss in the use
of the whole or any part of the Premises and/or any inconvenience or annoyance
occasioned by such damage, repair, reconstruction or restoration.
(d) Tenant shall not be released from any of its obligations under this
Lease except to the extent and upon the conditions expressly stated in this
Article 21. Notwithstanding anything to the contrary contained in this Article
21, if Landlord is delayed or prevented from repairing or restoring the damaged
Premises within one year after the occurence of such damage or destruction by
reason of acts of God, war, governmental restrictions, inability to procure the
necessary labor or materials, or other cause beyond the control of Landlord,
Landlord shall be relieved of its obligation to make such repairs or
restoration and Tenant shall be released from its obligations under this Lease
as of the end of said one year period.
(e) If damage is due to any cause other than fire or other peril covered
by extended coverage insurance, Landlord may elect to terminate this Lease.
(f) If landlord is obligated to or elects to repair or restore as herein
provided, Landlord shall be obligated to make repair or restoration only of
those portions of the Building and the Premises which were originally provided
at Landlord's expense, and the repair and restoration of items not provided at
Landlord's expense shall be the obligation of Tenant.
(g) Notwithstanding anything to the contrary contained in this Article
21, Landlord shall not have any obligation whatsoever to repair, reconstruct or
restore the Premises when the damage resulting from any casualty covered under
this Article 21 occurs during the last twelve months of the term of this Lease
or any extension hereof.
(h) The provisions of California Civil Code (S) 1932, Subsection 2, and
(S) 1933, Subsection 4, which permit termination of a lease upon destruction of
the Leased premises, are hereby waived by Tenant; and the provisions of this
Article shall govern in case of such destruction.
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22. EMINENT DOMAIN.
In case all of the Premises, or such part thereof as shall substantially
interfere with Tenant's use and occupancy thereof, shall be taken for any public
or quasi-public purpose by any lawful power or authority by exercise of the
right of appropriation, condemnation or eminent domain, or sold to prevent such
taking, either party shall have the right to terminate this Lease effective as
of the date possession is required to be surrendered to said authority. Tenant
shall not assert any claim against Landlord or the taking authority for any
compensation because of such taking, and Landlord shall be entitled to receive
the entire amount of any award without deduction for any estate or interest of
Tenant. In the event the amount of property or the type of estate taken shall
not substantially interfere with the conduct of Tenant's business, Landlord
shall be entitled to the entire amount of the award without deduction for any
estate or interest of Tenant. Landlord shall restore the Premises to
substantially their same condition prior to such partial taking, and a
proporsonate allowance shall be made to Tenant for the rent corresponding to the
time during which, and to the part of the Premises of which, Tenant shall be so
deprived on account of such taking and restoration. Nothing contained in this
Paragraph shall be deemed to give Landlord any interest in any award made to
Tenant for the taking of personal property and fixtures belonging to Tenant.
23. DEFAULTS AND REMEDIES.
(a) The occurrence of any one or more of the following events shall
constitute a default hereunder by Tenant:
(i) The vacation or abandonment of the Premises by Tenant. Abandonment
is herein defined to include, but is not limited to, any absence by Tenant from
the Premises for five business days or longer while in default of any provision
of this Lease.
(ii) The failure by Tenant to make any payment of rent or additional
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 three days after written
notice thereof from Landlord to Tenant; provided however, that any such notice
shall be in lieu of, and not in addition to, any notice required under
California Code of Civil Procedure (S) 1161 regarding unlawful detainer actions.
(iii) The failure by Tenant to observe or perform any of the express or
implied covenants or provisions of this Lease to be observed or performed by
Tenant, other than as specified in Subparagraph 23(a) (i) or (ii) above, where
such failure shall continue for a period of ten days after written notice
thereof from Landlord to Tenant. Any such notice shall be in lieu of, and not in
addition to, any notice required under California Code of Civil Procedure
(S) 1161 regarding unlawful detainer actions. If the nature of Tenant's default
is such that more than ten days are reasonably required for its cure, then
Tenant shall not be deemed to be in default if Tenant shall commence such cure
within said ten-day period and thereafter diligently prosecute such cure to
completion, which completion shall occur not later than sixty days from the date
of such notice from Landlord.
(iv) (1) The making by Tenant of any general assignment for the benefit
of creditors: 92) the filing or against Tenant of a petition to have Tenant
adjudged a bankrupt or a petition for reorganization or arrangement under any
law relating to bankruptcy (unless, in the case of a petition filed against
Tenant, the same is dismissed within thirty days): (3) the appointment of a
trustee or receiver to take possession as 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 days: or (4) the attachment, execution
or other judicial seizure of substantially all of Tenant's assets located at the
Premises or of Tenant's interest in this Lease where such seizure is not
discharged within thirty days.
(b) In the event of any such default by Tenant, in addition to any other
remedies available to Landlord at law or in equity, Landlord shall have the
immediate option to terminate this Lease and all rights of Tenant hereunder in
the event that Landlord shall elect to so terminate this Lease then Landlord may
recover from Tenant:
(i) the worth at the time of award of any unpaid rent which had been
earned at the time of such termination: plus
(ii) the worth at the time of award of the amount by which the unpaid
rent which would have been earned after termination until the time of award
exceeds the amount of such rental loss that Tenant proves could have been
reasonably avoided: plus
(iii) the worth at the time of award of the amount by which the unpaid
rent for the balance of the term after the time of award exceeds the amount of
such rental loss that Tenant proves could be reasonably avoided: plus
(iv) any other amount necessary to compensate Landlord for all the
detriment proximately cause by Tenant's failure to perform Tenant's obligations
under this Lease or which in the ordinary course of things would be likely to
result therefrom.
As used in Subparagraphs 23(b) (i) and (ii) above, the "worth at the time of
award" is computed by allowing interest at a rate equal to 2% in excess of the
"prime rate" of the Bank of America N.T.&S.A. as of the time of award not to
exceed, however the maximum rate permitted by law. As used in Subparagraph 25(b)
(iii) above, the "worth at the time of award" is computed by discounting such
amount at the discount rate of the Federal Reserve Bank of San Francisco at the
time of award plus one percent.
(c) In the event of any such default by Tenant, Landlord shall also have the
right, with or without terminating this Lease, to re-enter the Premises and
remove all persons and property from the Premises: such property may be removed
and stored in a public warehouse or elsewhere at the cost and for the account of
Tenant. No re-entry or taking possession of the Premises by Landlord pursuant
to this Paragraph 23(c) shall be construed as an election to terminate this
Lease unless a written notice of such intention is given to Tenant or unless the
termination thereof is decreed by a court of competent jurisdiction.
8
(d) All rights. options and remedies of Landlord contained in this Lease
shall be construed and held to be cumulative, and no one of them shall be
exclusive of the other, and Landlord shall have the right to pursue any one or
all of such remedies or any other remedy or relief which may be provided by law,
whether or not stated in this Lease. No waiver of any default of Tenant
hereunder shall be implied from any acceptance by Landlord or any rent or
other payments due hereunder or any omission by Landlord to take any action on
account of such default if such default persists or is repeated, and no express
waiver shall affect defaults other than as specified in said waiver. The consent
or approval of Landlord to or of any act by Tenant requiring Landlord's consent
or approval shall not be deemed to waive or render unnecessary Landlord's
consent or approval to or of any subsequent similar acts by Tenant.
24. ASSIGNMENT AND SUBLETTING.
(a) Tenant shall not, either voluntarily or by operation of law, assign,
hypothecate or transfer this Lease, or sublet the Premises or any part thereof,
without the prior written consent of Landlord in each instance.
(b) In the event Tenant desires to assign, hypothecate or otherwise
transfer this Lease or sublet the Premises, then at least thirty days prior to
the date when Tenant desires the assignment or sublease to be effective (the
"Assignment Date"), Tenant shall give Landlord a notice (the "Assignment
Notice"), which shall set forth the name, address and business of the proposed
assignee or sublessee, information (including references) concerning the
character, ownership, and financial condition of the proposed assignee or
sublessee, the Assignment Date, any ownership or commercial relationship
between Tenant and the proposed assignee or sublessee, and the consideration and
all other material terms and conditions of the proposed assignment or sublease,
all in such detail as Landlord shall reasonably require. If Landlord requests
additional detail, the Assignment Notice shall not be deemed to have been
received until Landlord receives such additional detail, and Landlord may
withhold consent to any assignment or sublease until such information is
provided to it.
(c) Landlord may, in its absolute discretion, withhold consent to any
assignment, hypothecation or transfer of this Lease for any reason. The
subletting of substantially all of the Premises for all or any part of the
remaining terms of this Lease shall be deemed an assignment rather than a
sublease for purposes of this clause. Notwithstanding the foregoing, Landlord
shall consent to the assignment or transfer, if the Assignment Notice states
that Tenant desires to assign the Lease to any entity into which Tenant is
merged, with which Tenant is consolidated or which acquires all or substantially
all of the assets of Tenant, provided that the assignee first executes,
acknowledges and delivers to Landlord an agreement whereby the assignee agrees
to be bound by all of the covenants and agreements in this Lease which Tenant
has agreed to keep, observe or perform, that the assignee agrees that the
provisions of this section shall be binding upon it as if it were the original
Tenant hereunder and that the assignee shall have a net worth (determined in
accordance with generally accepted accounting principles consistently applied)
immediately after such assignment which is at least equal to the net worth (as
so determined) of Tenant immediately prior to the assignment.
(d) Except as provided above, Landlord's consent to any sublease shall
not be unreasonably withheld. A condition to such consent shall be delivered by
Tenant to Landlord of a true copy of any such sublease. If Tenant shall sublet
all or any portion of the Premises that Tenant has occupied for its own use at
any time, then any consideration paid by the sublessee for the portion of the
Premises being sublet that previously was occupied by Tenant that exceeds one
hundred ten percent of the Basic Rent and Rental Adjustments provided by this
Lease for such portion of the Premises being sublet shall be due, owing and
payable from Tenant to Landlord when paid or owing by the sublessee under the
sublease. The parties intend that the preceding sentence shall not apply to any
sublease rentals respecting a portion of the Premises that, during the entire
term of this Lease, was not occupied by Tenant for its own use, but was always
subleased by Tenant and/or kept vacant. For the purpose of this section, the
rent for each square foot of floor space in the Premises shall be deemed equal.
(e) Any sale, assignment, hypothecation or transfer of this Lease or
subletting of the Premises that is not in compliance with the provisions of this
section shall be void and shall, at the option of Landlord, terminate this
Lease. The consent by Landlord to any assignment or subletting shall not be
construed as relieving Tenant or any assignee of this Lease or sublessee of the
Premises from obtaining the express written consent of Landlord to any further
assignment or subletting or as releasing Tenant or any assignee or sublessee of
Tenant from any liability or obligation hereunder whether or not then accrued.
In the event Landlord shall consent to an assignment or sublease, Tenant shall
pay Landlord as Additional Rent a reasonable attorneys' and administrative fee
not to exceed $500 for costs incurred in connection with evaluating the
Assignment Notice. This section shall be fully applicable to all further sales,
hypothecations, transfers, assignments and subleases of any portion of the
Premises by any successor or assignee of Tenant, or any sublessee of the
Premises.
25. SUBORDINATION.
Without the necessity of any additional document being executed by Tenant
for the purpose of effecting a subordination and at the election of Landlord or
any mortgagee with a lien on the Building or any ground lessor with respect to
the Building, this Lease shall be subject and subordinate at all times to:
(a) All ground leases or underlying leases which may now exist or
hereafter be executed affecting the Building or the land upon which the Building
is situated or both, and
(b) The lien of any mortgage or deed of trust which may now exist or
hereafter be executed in any amount for which the Building, land, ground leases
or underlying leases, or Landlord's interest or estate in any of said items is
specified as security. Notwithstanding
9
the foregoing, Landlord shall have the right to subordinate or cause to be
subordinated any such ground leases or underlying leases or any such liens to
this Lease. In the event that any ground lease or underlying lease terminates
for any reason or any mortgage or deed of trust is foreclosed or a conveyance in
lieu of foreclosure is made for any reason. Tenant shall, notwithstanding any
subordination, attorn to and become the Tenant or the successor in interest to
Landlord, at the option of such successor in interest. Tenant covenants and
agrees to execute and deliver, upon demand by Landlord and in the form requested
by Landlord, any additional documents evidencing the priority or subordination
of this Lease with respect to any such ground leases or underlying leases or the
lien of any such mortgage or deed of trust.
26. ESTOPPEL CERTIFICATE.
(a) Within ten days following any written request which Landlord may make
from time to time. Tenant shall execute and deliver to Landlord a statement
certifying:
(i) The date of commencement of this Lease;
(ii) The fact that this Lease is unmodified and in full force and effect
(or, if there have been modifications hereto, that this Lease is in full force
and effect, and stating the date and nature of such modifications);
(iii) The date to which the rental and other sums payable under this
Lease have been paid;
(iv) That there are no current defaults under this Lease by either
Landlord or Tenant except as specified in Tenant's statement; and
(v) Such other matters requested by Landlord, Landlord and Tenant
intend that any statement delivered pursuant to this Article 26 may be relied
upon by any mortgagee, beneficiary, purchaser or prospective purchaser of the
Building or any interest therein.
(b) Tenant's failure to deliver such statement within such time shall be
conclusive upon Tenant:
(i) That this Lease is in full force and effect, without modification
except as may be represented by Landlord;
(ii) That there are no uncured defaults in Landlord's performance; and
(iii) That not more than one month's rental has been paid in advance.
28. RULES AND REGULATIONS.
Tenant shall faithfully observe and comply with the "Rules and Regulations,"
a copy of which is attached hereto and marked Exhibit D, and all reasonable and
nondiscriminatory modifications thereof and additions thereto from time to time
put into effect by Landlord. Landlord shall not be responsible to Tenant for the
violation or non-performance by any other tenant or occupant of the Building of
any of said Rules and Regulations.
29. CONFLICT OF LAWS.
This Lease shall be governed by and construed pursuant to the laws of the
State of California.
30. SUCCESSORS AND ASSIGNS.
Except as otherwise provided in this Lease, all of the covenants, conditions
and provisions of this Lease shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns.
31. SURRENDER OF PREMISES.
The voluntary or other surrender of this Lease by Tenant, or a mutual
cancellation thereof, shall not work a merger, and shall, at the option of
Landlord, operate as an assignment to it of any or all subleases or
subtenancies.
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32. ATTORNEYS' FEES.
(a) If Landlord should bring suit for possession of the Premises, for the
recovery of any sum due under this Lease, or because of the breach of any
provisions of this Lease, or for any other relief against Tenant hereunder, or
in the event of any other litigation foreseen the parties with respect to this
Lease, then all costs and expenses, including reasonable attorneys' fees,
incurred by the prevailing party therein shall be paid by the other party, which
obligation on the part of the other party shall be deemed to have accrued on the
date of the commencement of such action and shall be enforceable whether or not
the action is prosecuted to judgment.
(b) If Landlord is named as a defendant in any suit brought against Tenant
in connection with or arising out of Tenant's occupancy hereunder. Tenant shall
pay to Landlord its costs and expenses incurred in such suit, including
reasonable attorney's fees.
33. PERFORMANCE BY TENANT.
All convenants and agreements to be performed by Tenant under any of the
terms of this Lease shall be performed by Tenant at Tenant's sole cost and
expense and without any abatement of rent. If Tenant shall fail to pay any sum
of money owned to any party other than Landlord, for which it is liable
hereunder, or if Tenant shall fail to perform any other act on its part to be
performed hereunder, and such failure shall continue for ten days after notice
thereof by Landlord, Landlord may, without waiving or releasing Tenant from
obligations of Tenant, but shall not be obligated to make any such payment or
perform any such other act to be made or performed by Tenant. All sums so paid
by Landlord and all necessary incidental costs together with interest thereon at
the maximum rate permissible by law, from the date of such payment by Landlord,
shall be payable to Landlord on demand. Tenant covenants to pay any such
sums, and Landlord shall have (in addition to any other right or remedy of
Landlord) all rights and remedies in the event of the non-payment thereof by
Tenant as are set forth in Article 23 hereof.
34. MORTGAGEE PROTECTION.
In the event of any default on the part of Landlord, Tenant will give
notice by registered or certified mail to any beneficiary of a deed of trust or
mortgage covering the Premises whose address shall have been furnished to
Tenant, and shall offer such beneficiary or mortgagee a reasonable opportunity
to cure the default, including time to obtain possession of the Premises by
power of sale or a judicial foreclosure, if such should prove necessary to
effect a cure.
35. DEFINITION OF LANDLORD.
The term "Landlord," as used in this Lease, so far as covenants or
obligations on the part of Landlord are concerned, shall be limited to mean and
include only the owner or owners, at the time in question, of the fee title of
the Premises or the lessees under any ground lease, if any. In the event of any
transfer, assignment or other conveyance or transfers of any such title,
Landlord herein named (and in case of any subsequent transfers or conveyances,
the ten grantor) shall be automatically freed and retrieved from and after the
date of such transfer, assignment or conveyance of all liability as respects the
performance of any covenants or obligations on the part of Landlord contained in
this Lease thereafter to be performed. Without further agreement, the transferee
of such title shall be deemed to have assumed and agreed to observe and
perform any and all obligations of Landlord hereunder, during its ownership of
the Premises. Landlord may transfer its interest in the Premises without the
consent of Tenant and such transfer or subsequent transfer shall not be deemed a
violation on Landlord's part of any of the terms and conditions of this Lease.
36. WAIVER.
The waiver by Landlord of any breach of any term, covenant or condition
herein contained shall not be deemed to be a waiver of any subsequent breach of
the same or any other term, covenant or condition herein contained, nor shall
any custom or practice which may grow up between the parties in the
administration of the terms hereof be deemed a waiver of or in any way affect
the right of Landlord to insist upon the performance by Tenant in strict
accordance with said terms. The subsequent acceptance of rent hereunder by
Landlord shall not be deemed to be a waiver of any preceding breach by Tenant of
any term, covenant or condition of this Lease, other than the failure of Tenant
to pay the particular rent so accepted, regardless of Landlord's knowledge of
such preceding breach at the time of acceptance of such rent.
37. IDENTIFICATION OF TENANT.
If more that one person executes this Lease as Tenant:
(a) Each of them is jointly and severally liable for the keeping, observing
and performing of all of the terms, covenants, conditions, provisions and
agreements of this Lease to be kept, observed and performed by Tenant, and
(b) The term "Tenant" as used in this Lease shall mean and include each of
them jointly and severally. The act of or notice from, or notice or refund to,
or the signature of any one or more of them, with respect to the tenancy of this
Lease, including, but not limited to any renewal, extension, expiration,
termination or modification of this Lease, shall be binding upon each and all of
the persons executing this Lease as Tenant with the same force and effect as if
each and all of them had so acted or so given or received such notice or refund
or so signed.
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38. PARKING
The use by Tenant, its employees and invitees, of the parking facilities of
the Building shall be on the terms and conditions set forth in exhibit E
attached hereto and by this reference incorporated herein and shall be subject
to such other agreement between Landlord and Tenant as may hereinafter be
established.
39. TERMS AND HEADINGS.
The words "Landlord" and "Tenant" as used herein shall include the plural as
well as the singular. Words used in any gender include other genders. The
paragraph headings of this Lease are not a part of this Lease and shall have no
effect upon the construction or interpretation of any part hereof.
40. EXAMINATION OF LEASE.
Submission of this instrument for examination or signature by Tenant does not
constitute a reservation of or option for lease, and it is not effective as a
lease or otherwise until execution by and delivery to both Landlord and Tenant.
41. TIME.
Time is of the essence with respect to the performance of every provision of
this Lease in which time of performance is a factor.
42. PRIOR AGREEMENT:AMENDMENTS.
This Lease contains all of the agreements of the parties hereto with respect
to any matter covered or mentioned in this Lease, and no prior agreement or
understanding pertaining to any such matter shall be effective for any purpose.
No provisions of this Lease may be amended or added to except by an agreement in
writing signed by the parties hereto or their respective successors in interest.
43. SEPARABILITY.
Any provision of this Lease which shall prove to be invalid, void or illegal
in no way affects, impairs or invalidates any other provision hereof, and such
other provisions shall remain in full force and effect.
44. RECORDING.
Neither Landlord nor Tenant shall record this Lease nor a short form
memorandum thereof without the consent of the other.
45. CONSENTS.
Whenever the consent of either party is required hereunder such consent shall
not be unreasonably withheld.
46. LIMITATION ON LIABILITY.
In consideration of the benefits accruing hereunder, Tenant and all
successors and assigns covenant and agree that in the event of any actual or
alleged failure, breach or default hereunder by Landlord:
(a) The sole and exclusive remedy shall be against the Landlord's interest in
the Building:
(b) No partner of Landlord shall be sued or named as a party in any suit or
action (except as may be necessary to secure jurisdiction of the partnership):
(c) No service of process shall be made against any partner of Landlord
(except as may be necessary to secure jurisdiction of the partnership):
(d) No partner of Landlord shall be required to answer or otherwise plead to
any service of process:
(e) No judgement will be taken against any partner of Landlord:
(f) Any judgement taken against any partner of Landlord may be vacated and
set aside at any time nunc pro tunc:
(g) No writ of execution will ever be levied against the assets of any
partner of Landlord:
(h) These covenants and agreements are enforceable both by Landlord and also
by any partner of Landlord.
47. RIDERS.
Clauses, plats and riders, if any, signed by Landlord and Tenant and affixed
to this Lease are a part hereof.
12
48. MODIFICATION FOR LENDER.
If, in connection with obtaining construction, interim or permanent financing
for the Building the lender shall request reasonable modifications in this Lease
as a condition to such financing, Tenant will not unreasonably withhold, delay
or defer its consent thereto, provided that such modifications do not increase
the obligations of Tenant hereunder or materially adversely affect the leasehold
interest hereby created or Tenant's rights hereunder.
49. AIRPORT DISCLOSURE.
Tenant, its heirs, successors and assigns acknowledges that:
(a) The Orange County Airport may not be able to provide adequate air
service for business establishments which rely on such services;
(b) When an alternate air facility is available, a complete phase out of
jet service may occur at Orange County Airport;
(c) The City of Newport Beach may continue to oppose additional commercial
air service expansion at the Orange County Airport;
(d) Tenant, its heirs, successors and assigns will not actively oppose any
action taken by the City of Newport Beach to phase out or limit jet air service
at the Orange County Airport.
IN WITNESS WHEREOF, the parties have executed this Lease as of the date
first above written.
LANDLORD: ADDRESS:
XXXX CENTER NEWPORT NUMBER 8, a California c/o The Xxxx Company
Limited Partnership 0000 Xxx Xxxxxx Xxxxxx, Xxxxx 000
By: /s/ Xxxxx Xxxxxx Xxxxxxx Xxxxx, XX 00000
----------------------------------
Xxxxx Xxxxxx, Vice President Asset
Management
TENANT: ADDRESS:
TIEMPO ESCROW II,
A California Corporation 0000 XxxXxxxxx Xxxxxxxxx
------------------------------------- -----------------------------------
By: /s/ Xxxx Xxxxx Suite 175
---------------------------------- -----------------------------------
Xxxx Xxxxx, President Title
By: Xxxxxxx Xxxxx, XX 00000
---------------------------------- -----------------------------------
Title
13
ADDENDUM TO OFFICE BUILDING LEASE
DATED JULY 10, 1990
BY AND BETWEEN XXXX CENTER NEWPORT #8
A CALIFORNIA LIMITED PARTNERSHIP AS "LANDLORD"
AND TIEMPO ESCROW II, A CALIFORNIA CORPORATION AS "TENANT"
EXECUTED CONCURRENTLY WITH THE XXXX CENTER NEWPORT #8
OFFICE BUILDING LEASE DATED JULY 10, 1990
--------------------------------------------------------------------------------
This Addendum to Lease is executed by and between Xxxx Center Newport #8, a
California Limited Partnership (hereinafter "Landlord") and Tiempo Escrow II, a
California Corporation (hereinafter "Tenant") concurrently with the Xxxx Center
Newport #8 Office Building Lease dated July 10, 1990.
50. ANNUAL BASIC RENT - The rent payable in months one (1) through sixty (60)
-----------------
shall be as follows:
Month 1 - $1.50 per rentable square foot per month,
$6,354.00 per month,
Months 2-6 - Rent Free
Month 7 - $.75 per rentable square foot per month,
$3,177.00 per month,
Months 8-12 - $1.50 per rentable square foot per month,
$6,354.00 per month,
Months 13-24 - $1.56 per rentable square foot per month,
$6,608.16 per month,
Months 25-36 - $1.62 per rentable square foot per month, *
$6,872.49 per month,
Months 37-48 - $1.69 per rentable square foot per month, *
$7,147.39 per month,
Months 49-60 - $1.75 per rentable square foot per month, *
$7,433.28 per month.
*Rates per rentable square foot have been rounded. Monthly rates listed
represent the actual rent that will be due monthly.
TIEMPO ESCROW II
Addendum
Page 2
51. RENTAL ABATEMENT: Tenant shall be granted free rent during months two (2)
----------------
through six (6) (total of five (5) months free).
52. BASE YEAR ADJUSTMENT: Notwithstanding anything to the contrary contained
--------------------
in Paragraph No. 4 "Rental Adjustment," the "Direct Expense Base" shall be
equal to the actual expenses incurred, as if the building were ninety-five
percent (95%) occupied for the Base Year 1990 and this Lease shall then be
amended accordingly.
53. PARKING: Parking for the building shall be provided as per the following:
-------
A) Unreserved Employee Parking: Landlord shall provide Tenant with
---------------------------
fifteen (15) unreserved employee parking spaces free for the Lease
term. Such parking shall be provided free and in common with the
surface parking lot surrounding the building.
B) Visitor Parking: Visitor parking shall be at a charge to Tenant's
---------------
invitees with the rate being established by Landlord from time-to-
time. Tenant may elect to validate such parking for their guests.
54. SIGNAGE:
-------
Monument Sign: Tenant shall be granted monument signage located in the
-------------
planter area in front of the subject premises. Final size, location, design
and placement shall be subject to final approval of Landlord and shall
conform to all project and governmental regulatory requirements.
Exterior Birch Street Directory Sign: Tenant shall be allowed one (1)
------------------------------------
Tenant identification position on the project "cube" directory sign which
is located on Birch Street closest to the building. Final lettering size
and position on the existing cube directory sign shall be subject to
Landlord's approval.
Cost: Cost of the above signage shall be at the sole cost and expense of
----
Tenant.
55. CONFLICT WITH BASIC LEASE: In the event of any conflict between the printed
-------------------------
portion of this Lease and the provisions of this Addendum, Sections 50
through 54, the provisions of this Addendum shall prevail.
TIEMPO ESCROW II
Addendum
Page 0
XXXX XXXXXX XXXXXXX #0 XXXXXX XXXXXX II,
A California Limited Partnership A California Corporation
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxx Xxxxx
----------------------------------- ------------------------------
Xxxxx Xxxxxx Xxxx Xxxxx
Title: Vice President Asset Management Title: President
-------------------------------- ---------------------------
Date: 7-10-90 Date:
--------------------------------- ----------------------------
EXHIBIT A
[FLOOR PLAN APPEARS HERE]
FLOOR 1
Xxxx Center Newport 8
0000 XxxXxxxxx Xxxx
FINAL
Suite #: 175 Usable: 3774
ID #: 100 Rentable: 4236
[LOGO OF XXXXXXXXX SYSTEMS, INC APPEARS HERE]
EXHIBIT B
WORK LETTER AGREEMENT
This Work Letter Agreement is entered into as of the 10th day of July, 1990
by and between XXXX CENTER NEWPORT NUMBER 8 ("Landlord") and Tiempo Escrow II, a
California Corporation ("Tenant").
RECITALS:
A. Concurrently with the execution of this Work Letter Agreement,
Landlord and Tenant have entered into a lease (the "Lease") covering certain
premises (the "Premises") more particularly described in Exhibit A attached to
the Lease.
B. In order to induce Tenant to enter into the Lease (which is hereby
incorporated by reference to the extent that the provisions of this Work Letter
Agreement may apply thereto) and in consideration of the mutual covenants
hereinafter contained, Landlord and Tenant hereby agree as follows:
1. COMPLETION SCHEDULE
Within ten days after the execution of the Lease, Landlord shall deliver to
Tenant, for Tenant's review and approval, a schedule (the "Work Schedule")
setting forth a timetable for the planning and completion of the installation of
the Tenant improvements to be constructed in the Premises. The Work Schedule
shall set forth each of the various items of work to be done by or approval to
be given by Landlord and Tenant in connection with the completion of the Tenant
improvements. Such schedule shall be submitted to Tenant for its approval and,
upon approval by both Landlord and Tenant, such schedule shall become the basis
for completing the Tenant improvement work. If Tenant shall fail to approve the
Work Schedule, as it may be modified after discussions between Landlord and
Tenant, within five working days after the date such schedule is first received
by Tenant, Landlord may, at its option, terminate the Lease and all of its
obligations thereunder.
2. TENANT IMPROVEMENTS.
Reference herein to "Tenant Improvements" shall include all work to be done
in the Premises pursuant to the Tenant Improvement Plans described in Paragraph
3 below, including but not limited to partitioning, doors, ceilings, floor
coverings, finishes, (including paint and wallcovering) electrical, (including
lighting, switching, telephones, outlets, etc.) plumbing, heating, ventilating
and air conditioning, fire protection, cabinets and other mill work.
INITIAL
3. TENANT IMPROVEMENT PLANS.
HERE
Immediately after the execution of this Lease, Tenant agrees to meet with
Landlord's architect and/or space planner II. The purpose of preparing a space
plan for the layout of the Premises. Based upon such space plan, Landlord's
architect shall prepare final working drawings and specifications for the Tenant
Improvements. Such final working drawings and specifications may be referred to
herein as the "Tenant Improvement Plans." (See mutually approved Space Plan
attached hereto.)
INITIAL
4. FINAL PRICING AND DRAWING SCHEDULE.
HERE
After the preparation of the space plan and after Tenant's written approval
thereof, in accordance with the Work Schedule Landlord shall cause its architect
to prepare and submit to Tenant the final working drawings and specifications
referred to in Paragraph 3 hereof. Such working drawings shall be approved by
Landlord and Tenant in accordance with the Work Schedule and shall thereafter be
submitted to the appropriate governmental body for plan checking and a building
permit. Landlord, with Tenant's cooperation, shall cause to be made any changes
in the plans and specifications necessary to obtain the building permit. After
final approval of the working drawings, no further changes to the Tenant
Improvement Plans may be made without the prior written approval from both
Landlord and Tenant, and then only after agreement by Tenant to pay any excess
costs resulting from such changes.
5. CONSTRUCTION OF TENANT IMPROVEMENTS.
After the Tenant Improvement Plans have been prepared and approved, the
final pricing has been approved and a building permit for the Tenant
Improvements has been issued. Landlord shall enter into a construction contract
with its contractor for the installation of the Tenant Improvements in
accordance with the Tenant Improvement Plans. Landlord shall supervise the
completion of such work and shall use its best efforts to secure completion of
the work in accordance with the Work Schedule. The cost of such work shall be
paid as provided in Paragraph 6 hereof.
INITIAL
HERE
EXHIBIT B Page 1
7. COMPLETION AND RENTAL COMMENCEMENT DATE.
The commencement of the term of this Lease and Tenant's obligation for
the payment of rental under the Lease shall not commence until substantial
completion of construction of the Tenant Improvements. However, if there shall
be a delay in substantial completion of the Tenant Improvements as a result of:
(i) Tenant's failure to approve any item or perform any other
obligation in accordance with and by the date specified in the Work Schedule;
(ii) Tenant's request for materials, finishes or installations other
than those readily available; or
(iii) Tenant's charges in the Tenant Improvement Plans after their
approval by Tenant; then the commencement of the term of the Lease and the
rental commencement date shall be accelerated by the number of days of such
delay.
IN WITNESS WHEREOF, this Work Letter Agreement is executed as of the date
first above written.
LANDLORD: TENANT:
TIEMPO ESCROW, II,
A California Corporation
XXXX CENTER NEWPORT NUMBER 8, a -------------------------------
California Limited Partnership
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxx Xxxxx
------------------------------- ----------------------------
(LANDLORD) (TENANT)
Xxxxx Xxxxxx, Vice President Xxxx Xxxxx, President
Asset Management
EXHIBIT B Page 2
[FLOOR PLAN APPEARS HERE]
Notes:
1. Provide single-lite 3 X 6 solid core wood door to receive paint, with 2
transom above in building standard metal frame.
2. Provide SW X 4 pass through window in building standard metal frame at 45
A.F.F.
3. Provide waste trap and drain, hot and cold water, and garbage disposal, for
single bowl stainless steel sink in 24" deep plastic laminate counter top on
plastic laminate base cabinet with flush overlay doors and one adjustable shelf
inside, with 12" door plastic laminate upper cabinet with flush overlay doors
and two adjustable shelves inside.
[LOGO OF XXXXXXX-XXXXXXXX ARCHITECTS APPEARS HERE]
JOB NO. 90094
DATE 0-00-00
XXXXXX XXXXXX II
GROUND FLOOR
0000 XXX XXXXXX XXXX.
XXXXXXX XXXXX, XXXXXXXXXX 00000
EXHIBIT "B"
Page 3 of 3
EXHIBIT C
STANDARDS FOR UTILITIES AND SERVICES
The following Standards for Utilities and Services are in effect.
Landlord reserves the right to adopt nondiscriminatory modifications and
additions hereto:
As long as Tenant is not in default under any of the terms, covenants,
conditions, provisions or agreements of this Lease, Landlord shall:
(a) Provide non-attended automatic elevator facilities Monday
through Friday, except holidays, from 8 A.M. to 6 P.M., and have one elevator
available at all other times.
(b) On Monday through Friday, except holidays, from 8 A.M. to 6
P.M., and on Saturday mornings from 8 A.M. to 12 Noon, (and other times for a
reasonable additional charge to be fixed by Landlord), ventilate the Premises
and furnish air conditioning or heating on such days and hours, when in the
judgment of Landlord it may be required for the comfortable occupancy of the
Premises. The air conditioning system achieves maximum cooling when the window
coverings are closed. Landlord shall not be responsible for room temperatures if
Tenant does not keep all window coverings in the Premises closed whenever the
system is in operation. Tenant agrees to cooperate fully at all times with
Landlord, and to abide by all regulations and requirements which Landlord may
prescribe for the proper function and protection of said air conditioning
system. Tenant agrees not to connect any apparatus, device, conduit or pipe to
the Building chilled and hot water air conditioning supply lines. Tenant further
agrees that neither Tenant nor its servants, employees, agents, visitors,
licensees or contractors shall at any time enter mechanical installations or
facilities of the Building or adjust, tamper with, touch or otherwise in any
manner affect said installations or facilities. The cost of maintenance and
service calls to adjust and regulate the air conditioning system shall be
charged to tenant if the need for maintenance work results from either Tenant's
adjustment of room thermostats or Tenant's failure to comply with its
obligations under this section, including keeping window coverings closed as
needed. Such work shall be charged at hourly rates equal to then-current
journeymen's wages for air conditioning mechanics.
(c) Landlord shall furnish to the Premises, during the usual
business hours on business days, electric current as required by the Building
standard office lighting and horsepower office business machines in an amount
not to exceed .025 KWH per square foot per normal business day. Tenant agrees,
should its electrical installation or electrical consumption be in excess of the
aforesaid quantity or extend beyond normal business hours, to reimburse Landlord
monthly for the measured consumption at the average cost per kilowatt hour
charged to the Building during the period. If a separate meter is not installed
at Tenant's cost such excess cost will be established by an estimate agreed upon
by Landlord and Tenant, and if the parties fail to agree, as established by an
independent licensed engineer. Tenant agrees not to use any apparatus or device
in or upon, or about the Premises which may in any way increase the amount of
such services usually furnished or supplied to said Premises, and Tenant further
agrees not to connect any apparatus or device with wires, conduits or pipes, or
other means by which such services are supplied, for the purpose of using
additional or unusual amounts of such services without written consent of
Landlord. Should Tenant use the same to excess, the refusal on the part of the
Tenant to pay upon demand of Landlord the amount established by the Landlord for
such excess charge shall constitute a breach of the obligation to pay rent under
this Lease and shall entitle Landlord to the rights therein granted for such
breach. At all times Tenant's use of electric current shall never exceed the
capacity of the leeders to the Building or the risers or wiring installation.
(d) Water will be available in public areas for drinking and
lavatory purposes only, but if Tenant requires, uses or consumes water for any
purposes in addition to ordinary drinking and lavatory purposes of which fact
Tenant constitutes Landlord to be the sole judge. Landlord may install a water
meter and thereby measure Tenant's water consumption for all purposes. Tenant
shall pay Landlord for the cost of the meter and the cost of installation
thereof and throughout the duration of Tenant's occupancy Tenant shall keep said
meter and installation equipment in good working order and repair at Tenant's
own cost and expense, in default of which Landlord may cause such meter and
equipment to be replaced or repaired and collect the cost thereof from Tenant.
Tenant agrees to pay for water consumed, as shown on said meter, as and when
bills are rendered, and on default in making such payment. Landlord may pay such
charges and collect the same from Tenant. Any such costs or expenses incurred,
or payments made by Landlord for any of the reasons or purposes hereinabove
stated shall be deemed to be additional rent payable by Tenant and collectible
by Landlord as such.
(e) Provide janitor service to the Premises, provided the same are
used exclusively as offices, and are kept reasonably in order by Tenant, and if
to be kept clean by Tenant, no one other than persons approved by Landlord shall
be permitted to enter the Premises for such purposes. If the Premises are not
used exclusively as offices, they shall be kept clean and in order by Tenant, at
Tenant's expense, and to the satisfaction of Landlord, and by persons approved
by Landlord. Tenant shall pay to Landlord the cost of removal of any of Tenant's
refuse and rubbish, to the extent that the same exceeds the refuse and rubbish
usually attendant upon the use of the Premises as offices.
Landlord reserves the right to stop service of the elevator,
plumbing, ventilation, air conditioning and electrical systems, when necessary,
by reason of accident or emergency or for repairs, alterations or improvements,
in the judgment of Landlord desirable or necessary to be made, until said
repairs, alterations or improvements shall have been completed, and shall
further have no responsibility or liability for failure to supply elevator
facilities, plumbing, ventilating, air conditioning or electrical service, when
prevented from so doing by
strike or accident or by any cause beyond Landlord's reasonable control, or by
laws, rules, orders, ordinances, directions, regulators or requirements of any
federal, state, county or municipal authority or failure of gas, oil or other
suitable fuel supply or inability by exercise of reasonable diligence to obtain
gas, oil or other suitable fuel. It is expressly understood and agreed that any
covenants on Landlord's part to furnish any device pursuant to any of the terms,
covenants, conditions, provisions or agreements of this Lease, or to perform any
act or thing for the benefit of Tenant, shall not be deemed breached if Landlord
is unable to furnish or perform the same by virtue of a strike or labor trouble
or any other cause whatsoever beyond Landlord's control.
EXHIBIT D
RULES AND REGULATIONS
1. Except as specifically provided in the Lease to which these Rules and
Regulations are attached, no sign, placard, picture, advertisement, name or
notice shall be installed or displayed on any part of the outside or inside
of the Building without the prior written consent of Landlord. Landlord
shall have the right to remove, at Tenant's expense and without notice, any
sign installed or displayed in violation of this rule. All approved signs
or lettering on doors and walls shall be printed, painted, affixed or
inscribed at the expense of Tenant by a person approved by Landlord.
2. If Landlord objects in writing to any curtains, blinds, shades, screens or
hanging plants or other similar objects attached to or used in connection
with any window or door of the Premises, or placed on any windowsill which
is visible from the exterior of the Premises, Tenant shall immediately
discontinue such use. Tenant shall not place anything against or near glass
partitions or doors or windows which may appear unsightly from outside the
Premises.
3. Tenant shall not obstruct any sidewalks, halls, passages, exits, entrances,
elevators, escalators, or stairways of the Building. The halls, passages,
exits, entrances, shopping malls, elevators, escalators and stairways are
not open to the general public, but are open, subject to reasonable
regulation, to Tenants business invitees. Landlord shall in all cases
retain the right to control and prevent access thereto of all persons whose
presence in the judgment of Landlord would be prejudicial to the safety,
character, reputation and interest of the Building and its tenants;
provided that nothing herein contained shall be construed to prevent such
access to persons with whom any tenant normally deals in the ordinary
course of its business, unless such persons are engaged in illegal or
unlawful activities. No tenant and no employee or invitee of any tenant
shall go upon the roof of the Building.
4. The directory of the Building will be provided exclusively for the display
of the name and location of tenants only, and Landlord reserves the right
to exclude any other names therefrom.
5. All cleaning and janitorial services for the Building and the Premises
shall be provided exclusively through Landlord, and except with the written
consent of Landlord, no person or persons other than those approved by
Landlord shall be employed by Tenant or permitted to enter the Building for
the purpose of cleaning the same. Tenant shall not cause any unnecessary
labor by carelessness or indifference to the good order and cleanliness of
the Premises.
6. Landlord will furnish Tenant, free of charge, with two keys to each door
lock in the Premises. Landlord may make a reasonable charge for any
additional keys. Tenant shall not make or have made additional keys, and
Tenant shall not alter any lock or install a new additional lock or bolt on
any door of its Premises. Tenant, upon the termination of his tenancy,
shall deliver to Landlord the keys of all doors which have been furnished
to Tenant, and in the event of loss of any keys so furnished, shall pay
Landlord therefore.
7. If Tenant requires telegraphic, telephonic, burglar alarm or similar
services, it shall first obtain, and comply with, Landlord's instructions
in their installation.
8. The Building freight elevator(s) shall be available for use by all tenants
in the Building, subject to such reasonable scheduling as Landlord, in its
discretion, shall deem appropriate. No equipment, materials, furniture,
packages supplies, merchandise or other property will by received in the
Building or carried in the elevators except between such hours and in such
elevators as may be designated by Landlord. Tenant's initial move in and
subsequent deliveries of bulky items, such as furniture, safes and similar
items shall, unless otherwise agreed in writing by Landlord, be made during
the hours of 6:00 p.m. to 6:00 a.m. or on Saturday or Sunday. Deliveries
during normal office hours shall be limited to normal office supplies and
other small items. No deliveries shall be made which impede or interfere
with other tenants or the operation of the Building.
9. Tenant shall not place a load upon any floor of the Premises which exceeds
the load per square foot which such floor was designed to carry and which
is allowed by law. Landlord shall have the right to prescribe the weight,
size and position of all equipment, materials, furniture or other property
brought into the Building. Heavy objects shall, if considered necessary by
Landlord, stand on such platforms as determined by Landlord to be necessary
to properly distribute the weight, which platforms shall be provided at
Tenant's expense. Business machines and mechanical equipment belonging to
Tenant, which cause noise or vibration that may be transmitted to the
structure of the Building or to any space therein to such a degree as to be
objectionable to Landlord or to any tenants in the Building, shall be
placed and maintained by Tenant, at Tenant's expense, on vibration
eliminators or other devices sufficient to eliminate noise or vibration.
The persons employed to move such equipment in or out of the Building must
be acceptable to Landlord. Landlord will not be responsible for loss of, or
damage to, any such equipment or other property from any cause, and all
damage done to the Building by maintaining or moving such equipment or
other property shall be repaired at the expense of Tenant.
10. Tenant shall not use or keep in the Premises any kerosene, gasoline or
inflammable or combustible fluid or material other than those limited
quantities necessary for the operation or maintenance of office equipment.
Tenant shall not use or permit to be used in the Premises any foul or
noxious gas or substance, or permit or allow the Premises to be occupied or
used in a manner offensive or objectionable to Landlord or other occupants
of the Building by reason of noise, odors or vibrations, nor shall Tenant
bring into or keep in or about the Premises any birds or animals.
EXHIBIT D Page 1
11. Tenant shall not use any method of heating or air-conditioning other than
that supplied by Landlord.
12. Tenant shall not waste electricity, water or air-conditioning and agrees to
cooperate fully with Landlord to assure the most effective operation of the
Buildings heating and air-conditioning and to comply with any governmental
energy-saving rules, laws or regulations of which Tenant has actual notice,
and shall refrain from attempting to adjust controls. Tenant shall keep
corridor doors closed, and shall close window coverings at the end of each
business day.
13. Landlord reserves the right, exercisable without notice and without
liability to Tenant, to change the name and street address of the Building.
14. Landlord reserves the right to exclude from the Building between the hours
of 6 p.m. and 7 a.m. the following day, or such other hours as may be
established from time to time by Landlord, and on Sundays and legal
holidays, any person unless that person is known to the person or employee
in charge of the Building and has a pass or is properly identified. Tenant
shall be responsible for all persons for whom it requests passes and shall
be liable to Landlord for all acts of such persons. Landlord shall not be
liable for damages for any error with regard to the admission to or
exclusion from the Building of any person. Landlord reserves the right to
prevent access to the Building in case of invasion, mob, riot, public
excitement or other commotion by closing the doors or by other appropriate
action.
15. Tenant shall close and lock the doors of its Premises and entirely shut off
all water faucets or other water apparatus, and electricity, gas or air
outlets before tenant and its employees leave the Premises. Tenant shall be
responsible for any damage or injuries sustained by other tenants or
occupants of the Building or by Landlord for noncompliance with this rule.
16. Tenant shall not obtain for use on the Premises ice, drinking water, food,
beverage, towel or other similar services or accept barbering or
bootblacking service upon the Premises, except at such hours and under such
regulations as may be fixed by Landlord.
17. The toilet rooms, toilets, 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. The
expense of any breakage, stoppage or damage resulting from the violation of
this rule shall be borne by the tenant who, or whose employees or invitees,
shall have caused it.
18. Tenant shall not sell, or permit the sale at retail, of newspapers,
magazines, periodicals, theater tickets or any other goods or merchandise to
the general public in or on the Premises. Tenant shall not make any room-to-
room solicitation of business from other tenants in the Building. Tenant
shall not use the Premises for any business or activity other than that
specifically provided for in Tenant's Lease.
19. Tenant shall not install any radio or television antenna, loudspeaker or
other devices on the roof or exterior walls of the Building. Tenant shall
not interfere with radio or television broadcasting or reception from or in
the Building or elsewhere.
20. Tenant shall not xxxx, drive nails, screw or drill into the partitions,
woodwork or plaster or in any way deface the Premises or any part thereof,
except in accordance with the provisions of the Lease pertaining to
alterations. Landlord reserves the right to direct electricians as to where
and how telephone and telegraph wires are to be introduced to the Premises.
Tenant shall not cut or bore holes for wires. Tenant shall not affix any
floor covering to the floor of the Premises in any manner except as approved
by Landlord. Tenant shall repair any damage resulting from noncompliance
with this rule.
21. Tenant shall not install, maintain or operate upon the Premises any vending
machines without the written consent of Landlord.
22. Canvassing, soliciting and distribution of handbills or any other written
material, and peddling in the Building are prohibited, and Tenant shall
cooperate to prevent such activities.
23. Landlord reserves the right to exclude or expel from the Building any person
who, in Landlord's judgment, is intoxicated or under the influence of liquor
or drugs or who is in violation of any of the Rules and Regulations of the
Building.
24. Tenant shall store all its trash and garbage within its Premises or in other
facilities provided by Landlord. Tenant shall not place in any trash box or
receptacle any material which cannot be disposed of in the ordinary and
customary manner of trash and garbage disposal. All garbage and refuse
disposal shall be made in accordance with directions issued from time to
time by Landlord.
25. The Premises shall not be used for the storage of merchandise held for sale
to the general public, or for lodging or for manufacturing of any kind, nor
shall the Premises be used for any improper, immoral or objectionable
purpose. No cooking shall be done or permitted on the Premises without
Landlord's consent, except that use by Tenant of Underwriters' Laboratory
approved equipment for brewing coffee, tea, hot chocolate and similar
beverages or use of microwave ovens for employee use shall be permitted,
provided that such equipment and use is in accordance with all applicable
federal, state, county and city laws, codes, ordinances, rules and
regulations.
26. Tenant shall not use in any space or in the public halls of the Building any
hand truck except those equipped with rubber tires and side guards or such
other material-handling equipment as Landlord may approve. Tenant shall not
bring any other vehicles of any kind into the building.
EXHIBIT D Page 2
27. 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.
28. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or a governmental
agency.
29. Tenant assumes any and all responsibility for protecting its Premises from
theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed.
30. Tenant's requirements will be attended to only upon appropriate application
to the Building management office by an authorized individual. Employees of
Landlord shall not perform any work or do anything outside of their regular
duties unless under special instructions from Landlord, and no employee of
Landlord will admit any person (Tenant or otherwise) to any office without
specific instructions from Landlord.
31. Landlord may waive any one or more of these Rules and Regulations for the
benefit of Tenant or any other tenant, but no such waiver by Landlord shall
be construed as a waiver of such Rules and Regulations in favor of Tenant
or any other tenant, nor prevent Landlord from thereafter enforcing any
such Rules and Regulations against any or all of the tenants of the
Building.
32. These Rules and Regulations are in addition to, and shall not be construed
to in any way modify or amend, in whole or in part, the terms, covenants,
agreements and conditions of Tenant's lease of its Premises in the
Building.
33. Landlord reserves the right to make such other and reasonable Rules and
Regulations as, in its judgment, may from time to time be needed for safety
and security, for care and cleanliness of the Building and for the
preservation of good order therein. Tenant agrees to abide by all such
Rules and Regulations hereinabove stated and any additional rules and
regulations which are adopted.
34. Tenant shall be responsible for the observance of all of the foregoing
rules by Tenant's employees, agents, clients, customers, invitees and
guests.
EXHIBIT D Page 3
EXHIBIT E
PARKING RULES AND REGULATIONS
The following rules and regulations shall govern use of the parking
facilities which are appurtenant to the Building.
1. Landlord assumes no responsibility for any damage to any vehicle parked in
the parking areas or for any goods left is any such vehicle. All such
liability is to be specifically assumed by the operator of any such vehicle
as a condition of parking.
2. Tenant shall not park or permit the parking of any vehicle under its
control in any parking areas designated by Landlord as areas for parking by
visitors to the Building. Tenant shall not leave vehicles in the parking
areas overnight nor park any vehicles in the parking areas other than
automobiles, motorcycles, motor driven or non-motor driven bicycles or
four-wheeled trucks.
3. Parking stickers or any other device or form of identification supplied by
Landlord as a condition of use of the parking areas shall remain the
property of Landlord. Such parking identification device must be displayed
as requested and may not be mutilated in any manner. The serial number of
the parking identification device may not be obliterated. Devices are not
transferable without Landlord's consent and any device in the possession of
an unauthorized holder will be void.
4. No overnight or extended term storage of vehicles shall be permitted.
5. Vehicles must be parked entirely within the painted stall lines of a single
parking stall.
6. All directional signs and arrows must be observed.
7. The speed limit within all parking areas shall be 5 miles per hour.
8. Parking is prohibited:
(a) in areas not striped for parking;
(b) in aisles;
(c) where "no parking" signs are posted;
(d) on ramps;
(e) in cross hatched areas; and
(f) in such other areas as may be designated by Landlord or Landlord's
Parking Operator.
9. Each person using the parking facilities is required to park and lock his
own vehicle.
10. Loss or theft of parking identification devices from automobiles must be
reported to the garage manager immediately, and a lost or stolen report must be
filed by the customer at that time. Landlord has the right to exclude any
vehicle from the parking areas that does not have an identification device.
11. Any parking identification devices reported lost or stolen and thereafter
found on any unauthorized vehicle will be confiscated and the illegal holder
will be subject to prosecution.
12. Washing, waxing, cleaning or servicing (other than for emergency
situations) of any vehicles in any area not specifically reserved for such
purpose is prohibited.
13. Tenant shall acquaint all persons to whom Tenant assigns parking spaces of
these Rules and Regulations. Parking area managers or attendants are not
authorized to make or allow any exceptions to the Rules and Regulations.
14. Landlord reserves the right to refuse the sale of monthly stickers or other
parking identification devices in Reserved Parking areas or in other areas in
which a charge for parking is made to any tenant or person and /or his agents or
representatives who willfully refuse to comply with these Rules and Regulations
and all unposted City, State or Federal ordinances, laws or agreements.
15. Landlord reserves the right to modify and/or adopt such other reasonable
and non-discriminatory rules and regulations for the parking area as it deems
necessary for the operation of the parking areas. Landlord may refuse to permit
any person who violates these rules to park in the parking areas, and any
violation of the rules shall subject the vehicle to removal.
LEASE SUMMARY
-------------
Tenant : Tiempo Escrow II
------
Building : KCN #8
-------- 0000 XxxXxxxxx Xxxx.
Xxxxxxx Xxxxx, XX 00000
Floor & Suite : Xxxxxx Xxxxx - Xxxxx 000
-------------
Xx Ft Rentable : 4,236
-----
Usable : 3,774
Term : Five (5) Years
----
Term Commencement : Completion of Tenant Improvements.
-----------------
Free Rent : Five and one-half (5.5) months.
---------
Rental Rate
-----------
(Monthly) : Yr 1 - $6,354.00 Yr 4 - $7,147.39
------- Yr 2 - $6,608.16 Yr 5 - $7,433.28
Yr 3 - $6,872.49
Expense Stop : 1990 Base Year
------------
Parking Spaces : Fifteen (15)
--------------
Parking Rate
------------
(Monthly) : Yrs 1-5 - -0-
-------
T.I. Allowance : Build-to-suit
--------------
Commission :
----------
Deposit : $6,989.40
-------
Other Concessions : N/A
-----------------
Options : N/A
-------
Type of Space : Existing
-------------
Use : Escrow offices
---
Broker : Xxxxx & Xxxxx (Xxx Xxxxxxxx and Xxxx Xxxxxxxx)
------
Space Planner : Xxxxxxx.Xxxxxxxx
-------------
Date : June 26, 1990
----
AMENDMENT NO. 1 TO OFFICE BUILDING LEASE
----------------------------------------
This Amendment No. 1 ("Amendment") to Office Building Lease is made as of
this ____ day of August, 1993, by and between Xxxx Center Newport Number 8, a
California Limited Partnership ("Landlord") and Tiempo Escrow II, a California
Corporation ("Tenant").
R E C I T A L S
- - - - - - - -
The parties hereto are Landlord and Tenant under that certain Office
Building Lease dated July 10, 1990 ("Lease") covering space on the ground floor,
Suite 175, of the building located at 0000 XxxXxxxxx Xxxxxxxxx, Xxxxxxx Xxxxx,
Xxxxxxxxxx (the "Premises") in the project known as Xxxx Center Newport (the
"Project").
WHEREAS, Landlord desires to provide modifications to the original Lease
agreement and subsequent amendments to extend the Lease Term and Tenant agrees
to same, the parties hereto mutually desire to amend said Lease as hereinafter
provided. All existing terms and conditions of the Lease, as amended, shall
remain in full force and effect, except as otherwise set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants, promises,
agreements, terms and conditions set forth hereinafter, and other good and
valuable consideration, receipt of which is hereby acknowledged by the parties,
Landlord and Tenant agree as follows:
1. Term: The term of the above referenced Lease, scheduled to expire on
----
September 30, 1995, is hereby extended for forty-eight (48) months ("Extended
Term"), commencing August 1, 1993 ("Commencement Date") and terminating July 31,
1997.
2. Annual Basic Rent. Effective upon the Commencement Date, and for the
-----------------
months of the Extended Term thereafter through the Lease expiration date of July
31, 1997, Tenant shall pay to Landlord Annual Basic Rent for the Premises in the
amount set forth below:
Term Rate/Amount
---- -----------
8/01/93 - 7/31/94 $1.447 per rentable sq.ft. per month,
$6,130.94 per month,
$73,571.29 per annum;
8/01/94 - 7/31/95 $1.497 per rentable sq.ft. per month,
$6,342.74 per month,
$76,112.89 per annum;
8/01/95 - 7/31/96 $1.547 per rentable sq.ft. per month,
$6,554.54 per month,
$78,654.49 per annum;
TIEMPO ESCROW II
Amendment No. 1
Page 2
8/01/96-7/31/97 $1.597 per rentable sq.ft. per month,
$6,766.34 per month,
$81,196.09 per annum.
Annual Basic Rent shall be paid by Tenant to Landlord in accordance with
Paragraph 3 of the Lease.
3. Direct Expense Base: Paragraph 4 of the Lease is hereby modified
-------------------
to replace the Direct Expense Base of 1990 Base Year per square foot with a 1993
"Base Year" effective August 1, 1993. The amount of the annual Direct Expenses
which Landlord has included in the Annual Basic Rent shall be equal to the
actual expenses incurred by Landlord to operate the Building and Common Areas,
as further defined within section 4(a)(iii) of the Lease and Paragraph 52 of
the Addendum to Lease, during the Base Year (1993), including all expenses which
become due during, but which are not, for whatever reason, paid during the Base
Year. The Direct Expense Base shall be equal to the actual expenses incurred,
as if the Building were ninety-five percent (95%) occupied for the Base Year
1993. To the extent that Tenant's Percentage of the Direct Expenses for any
calendar year exceeds the Direct Expense Base Year, then Tenant shall pay such
difference as additional rent to Landlord as set forth in the Lease.
4. Tenant Improvements. Tenant shall lease the Premises in "As Is"
-------------------
condition and Landlord shall have no obligation to provide any tenant
improvements to the Premises.
5. Parking. Through the Extended Term, Tenant shall continue to
-------
enjoy and be bound by the parking rights and obligations provided for in
Paragraphs 38 and 53 of the Addendum to the Lease, however, commencing on
October 1, 1995 and continuing through July 31, 1997, Tenant shall pay $10.00
per stall per month for fifteen (15) unreserved employee parking stalls. Such
parking fees shall be paid as additional rent and shall be paid to Landlord, or
Landlord's designated agent, in accordance with Paragraph 3 of the Lease and
shall be subject to Paragraph 23 of the Lease.
6. Hazardous or Toxic Materials. Tenant covenants and agrees not to
----------------------------
introduce any hazardous or toxic materials onto the Premises without (a) first
obtaining Landlord's written consent; and (b) complying with all applicable
federal, state and local laws or ordinances pertaining to the transportation,
storage, use or disposal of such materials, including but not limited to
obtaining proper permits. If Tenant's transportation, storage, use or disposal
of such hazardous or toxic materials on the Premises results in (i)
contamination of the soil or surface or ground water; or (ii) loss or damage to
persons or property, then Tenant agrees to (a) notify Landlord immediately of
any contamination, claim of
TIEMPO ESCROW II
Amendment No. 1
Page 3
contamination, loss or damage; (b) after consultation and approval by Landlord,
to clean up the contamination in full compliance with all applicable statutes,
regulations and standards at Tenant's sole cost and expense; and (c) to
indemnify, defend and hold Landlord free and harmless from any and all claims,
suits, causes of action, judgments, awards, costs and fees, including reasonable
attorneys' fees, arising from or in connection with any such contamination,
claim of contamination, loss or damage. This provision shall survive
termination of the Lease and this Amendment 3.
7. Deletion of Lease Provisions. Upon execution and delivery of this
----------------------------
Amendment, the following provisions of the Lease and subsequent amendments, or
portions of provisions as indicated below, shall be deemed deleted from the
Lease and shall be null and void and of no further force or effect.
A. Addendum, Paragraph 50 - Annual Basic Rent shall be deleted in
its entirety; and
B. Addendum, Paragraph 51 - Rental Abatement shall be deleted in
its entirety; and
C. Addendum, Paragraph 52 - Base Year Adjustments shall be
deleted in its entirety; and
8. Effectiveness of Lease. Except as set forth in this Amendment, all
----------------------
of the provisions of the Lease and addendum to Lease and prior amendments to
this Lease shall remain unchanged and in full force and effect. The remaining
unaffected portions of the Lease, addendum and prior amendments are hereby
ratified and affirmed and incorporated herein by this reference. All defined
terms herein shall have the same meaning as specified in the Lease, addendum and
prior amendments unless otherwise indicated.
9. Brokers. Tenant acknowledges that it has dealt only with the Xxxx
-------
Marketing Group and with no other real estate broker, finder, or other person,
with respect to this amendment. Tenant shall hold Landlord harmless from all
damages resulting from any claims that may be asserted by any broker, finder, or
other person, with whom Tenant has, or purportedly has, dealt.
TIEMPO ESCROW II
Amendment No. 1
Page 4
IN WITNESS WHEREOF, the parties have executed this Amendment to Office Building
Lease as of the day and year first written above.
LANDLORD: TENANT:
XXXX CENTER NEWPORT NUMBER 8 TIEMPO ESCROW II,
A California Limited Partnership A California Corporation
By: Xxxx Management Services, Inc., By: /s/ Xxxx Xxxxx
A Delaware Corporation, as Agent --------------------------------
Xxxx Xxxxx
By: Title: President
-------------------------------- -----------------------------
Xxxxxxx Stage, Portfolio Manger
Date: Date: 9/2/93
------------------------------ ------------------------------
[FINAL FLOOR PLAN OF
FLOOR 1
XXXX CENTER NEWPORT 8
0000 XXXXXXXXX XXXX.
APPEARS HERE]
