EXHIBIT 10.4
LEASE BY AND BETWEEN NEWPORT PLACE ASSOCIATES
AND HOMELIFE REALTY SERVICES, INC. DATED
APRIL 12, 1990 FOR THE PROPERTY LOCATED AT
4100 NEWPORT PLACE, SUITE 730, NEWPORT BEACH, CALIFORNIA 92660
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4100 NEWPORT PLACE
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LANDLORD:
NEWPORT PLACE ASSOCIATES,
A California Limited Partnership
TENANT:
HOMELIFE REALTY SERVICES, INC.,
A Delaware Corporation
DATE OF LEASE: April 12, 1990
OFFICE LEASE
In consideration of the rents and covenants hereinafter set forth, the Landlord
named in Article B of Section I hereby Leases to the Tenant named in Article C
of Section 1, and Tenant hereby hires from Landlord, the Demised Premises
described in Article F of Section I of this Lease upon the conditions set forth
below, and it is agreed that each of the terms, covenants, provisions and
agreements hereinafter specified shall be a condition.
SECTION I-LEASE TERMS
ARTICLE
A. Date of Lease: April 12, 1990
B. Landlord: Newport Place Associates, a California Limited Partnership
C. Tenant: HomeLife Realty Services, Inc., a Delaware Corporation
D. Trade Name (if any):_________________________________________
E. Guarantor (if any):_________________________________________
F. Demised Premises (Section 11, Article 1): Suite 730, encompassing
approximately 2,605 rentable square feet on the seventh floor in the building
and parcel of Land ("Building") known as 4100 Newport Place more particularly
described in Exhibit C and Located in the City of Newport Beach, State of
California.
G. Lease Term (Section 11, Article 1): Thirty-six (36) months. Commencement
Date: July 1, 1990 Expiration Date: June 30, 1993
H. Base Annual Rent (Section ii, Article 1):____________________________________
Monthly Installments:_____________________________________
Periodic Rent Increase Date: See Section II, Article 38
I. Use of Premises (Section 11, Article 2): General office.
J. Address for Notice to Landlord (Section 11, Article 27):
Newport Place Associates, c/o McLachlan Investment Company
4141 MacArthur Boulevard Suite 100
Newport Beach, CA 92660
K. Base Taxes and Operating Costs Amount (Section II, Article 28): See Section
II, Article 39.
L. Number of Parking Spaces (Section 11, Article 1): 10
M. Tenant's Share of Any Increase Over Base Taxes and Operating Costs Amount
(Section II, Article 28): 1.38%, Rentable Area of Building: 189,031; Rentable
Area of Demised Premises: 2,605.
N. Security Deposit (Section 11, Article 30): $5,860.00
0. Broker(s) (Section II, Article 35): Broker(s) (Section 11, Article 35):
Coldwell Banker - Welch
Address: 4040 MacArthur Boulevard
Newport Beach, CA 92660
License No.:________________________
Cooperating Broker:____________________
Address:_______________________________
TABLE OF CONTENTS
Article Page
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1. Demised Premises, Term, Rent, Late Charges.. . . . . . . . . 4
2. Occupancy. . . . . . . . . . . . . . . . . . . . . . . . . . 5
3. Assignment, Mortgage, Subletting ... . . . . . . . . . . . . 5
4. Alternations . . . . . . . . . . . . . . . . . . . . . . . . 6
5. Repairs . . . . . . . . . . . . . . . . . . . . . . . . . . 6
6. Requirements of Law, Insurance . . . . . . . . . . . . . . . 7
7. Subordination, Ground Leases, Mortgages . . . . . . . . . . 7
8. Rules and Regulations. . . . . . . . . . . . . . . . . . . . 8
9. Liability and Indemnification . . . . . . . . . . . . . . . 8
10. Damage or Destruction and Mutual Waiver of Subrogation . . . 9
11. Eminent Domain . . . . . . . . . . . . . . . . . . . . . . . 9
12. Services . . . . . . . . . . . . . . . . . . . . . . . . . . 9
13. Access to Premises .. . . . . . . . . . . . . . . . . . . . 10
14. Tenant's Insurance . . . . . . . . . . . . . . . . . . . . . 10
15. Certificates of Occupancy. . . . . . . . . . . . . . . . . . 11
16. Life-Safety Systems .. . . . . . . . . . . . . . . . . . . . 11
17. Bankruptcy ... . . . . . . . . . . . . . . . . . . . . . . . 11
18. Default. . . . . . . . . . . . . . . . . . . . . . . . . . . 12
19. Fees and Expenses .. . . . . . . . . . . . . . . . . . . . . 13
20. No Representatives by Landlord ... . . . . . . . . . . . . . 13
21. End of Term . . . . . . . . . . . . . . . . . . . . . . . . 13
22. Quite Possession . . . . . . . . . . . . . . . . . . . . . . 13
23. Landlord's Work and Failure to Give Possession . . . . . . . 14
24. Termination, No Waiver, No Oral Change ... . . . . . . . . . 14
25. Waiver of Trial by Jury . . . . . . . . . . . . . . . . . . 14
26. Inability of Perform ... . . . . . . . . . . . . . . . . . . 14
27. Bills and Notices .. . . . . . . . . . . . . . . . . . . . . 15
28. Increase of Taxes and Operating Costs . . . . . . . . . . . 15
29. Food, Beverages and Odors .. . . . . . . . . . . . . . . . . 16
30. Security . . . . . . . . . . . . . . . . . . . . . . . . . 17
31. Care of Floor and Window Coverings . . . . . . . . . . . . . 17
32. Marginal Notes . . . . . . . . . . . . . . . . . . . . . . . 17
33. Definitions . . . . . . . . . . . . . . . . . . . . . . . . 17
34. Landlord's Approval . . . . . . . . . . . . . . . . . . . . 17
35. Brokerage .. . . . . . . . . . . . . . . . . . . . . . . . . 17
36. Binding Effect ... . . . . . . . . . . . . . . . . . . . . . 17
37. Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . 17
Exhibit A -Floor Plan
Exhibit B -Work Letter and Construction Agreement
Exhibit C -Legal Description
Exhibit D -Rules and Regulations
GENERAL LEASE PROVISIONS
DEMISED PREMISES, TERM, RENT, LATE CHARGES
DEMISED PREMISES
1.1 Upon and subject to the terms, covenants and conditions hereinafter set
forth, Landlord hereby Leases to Tenant and Tenant hereby hires from Landlord
the Demised Premises comprising the area substantially as shown on the floor
plan or plans that have been signed by Landlord and Tenant and that are attached
hereto as Exhibit A.
1.2 Tenant shall have the right, for the benefit of Tenant and its
employees, suppliers, shippers, customers and invitees, to the non-exclusive use
of all areas and facilities outside the Demised Premises and within the exterior
boundary Line of the Park that are provided and designed by Landlord from time
to time for the general non-exclusive use of Landlord, Tenant and the other
tenants of the Park and their respective employees, suppliers, shippers,
customers and invitees, including parking areas, Loading and unloading areas,
drives, walkways, roadways, trash areas and Landscaped areas (herein called
"Common Areas").
1.3 Tenant shall have the right for the benefit of Tenant and its
employees, customers and invitees, to the use of the number of Parking Spaces
specified in the Lease Terms on those portions of the Common Areas designated
for parking by Landlord from time to time. Such spaces shall be used by all
tenants of the Park on an unassigned basis.
1.4 Landlord shall, at all times during the term of this Lease, have the
sole and exclusive control of the parking facility. Landlord may at any time and
from time to time during the term hereof exclude and restrain any person from
use or occupancy thereof who is not a tenant or occupant of the Master Premises
or an invitee of a tenant or occupant. Landlord shall at all times have the
right and/or privilege of determining the nature and extent of the parking
facility, whether surface, underground or multiple deck, and of making such
changes therein as Landlord may at any time or from time to time deem desirable,
including the location and relocation of driveway entrances, exits, parking
spaces and the direction and flow of traffic.
1.5 Tenant acknowledges that the premises are part of a phased
master-planned development. As development progresses, Landlord may from time to
time relocate all or any portion of the parking facilities to within a
reasonable walking distance from the Master Premises. Subject to such charges as
Landlord may impose, if Landlord charges for parking, Tenant and Tenant's
invitees may use the parking facility on a nonexclusive, non-reserved basis
together with Landlord, other tenants and occupants of the Master Premises, and
their respective invitees. Tenant shall not cause or permit any obstruction to
the free and clear usage of the parking facility. Landlord shall have the right
to adopt and enforce rules and regulations for the parking facility. Landlord
may, in Landlord's absolute discretion, establish a system of parking charges.
Tenant shall observe and obey such rules and regulations as Landlord may adopt
in connection with any such system. Any governmental charges, surcharges, or
other monetary obligations which may be imposed in connection with parking
privileges appurtenant to this Lease or with the operation of the parking
facility shall be included as property taxes. Landlord shall have no Liability
to Tenant, nor shall Tenant's obligations under this Lease be in any way excused
or modified, if Tenant's parking privileges under this Lease or elsewhere in the
Master Premises are impaired by reason of any moratorium, initiative,
referendum, statute, regulation, or other governmental decree or action.
Term
1.6 The Demised Premises are teased for the Term to commence on the
Commencement Date and end on the Expiration Date, unless the Term shall sooner
terminate as hereinafter provided.
Rent
1.7 Tenant shall pay to Landlord during the term the Base Annual Rent,
which sum shall be payable by Tenant in equal consecutive Monthly Installments
on or before the first day of each month, in advance at the address specified
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for Landlord in the Lease Terms, or such other place as Landlord shall
designate, without any prior demand therefor and without any abatement,
deduction or setoff whatsoever. If the Commencement Date should occur on a day
other than the first day of a calendar month, or the Expiration Date should
occur on a day other than the last day of a calendar month, then the rental for
such fractional month shall be prorated on a daily basis based upon a thirty
(30) day calendar month. In addition to the Base Annual Rent, Tenant shall pay
the amount of any rental adjustments and additional payments as and when
hereinafter provided in this Lease.
LATE CHARGES
1.8 Tenant hereby acknowledges that Late payment by Tenant to Landlord of
rent and other Sums due hereunder will cause Landlord to incur costs not
contemplated by this Lease, the exact amount of which will be extremely
difficult to ascertain. Such costs include, but are not limited to, processing
and accounting charges and Late charges which may be imposed on Landlord by the
terms of any mortgage or trust deed covering the Premises. Accordingly, if any
installment of rent, or any other sum due from Tenant, shall not be received
within 10 days after such amount shall be due, Tenant shall pay to Landlord, in
addition to the interest provided in Section 1.10, a late charge equal to ten
percent (10%) of such overdue amount. The parties agree that such late charge
represents a fair and reasonable estimate of the costs Landlord will incur by
reason of late payment by Tenant. Acceptance of such Late charge by Landlord
shall in no way constitute a waiver of Tenant's default with respect to such
overdue amount nor prevent Landlord from exercising any other right or remedy of
Landlord resulting from such late payment.
1.10 Notwithstanding any other provision of this Lease, any installment of
Base Annual Rent or additional charges not paid to Landlord when due hereunder,
shall bear interest from the date due or from the date of expenditure by
Landlord for the account of Tenant, until the same have been fully paid, at a
rate (the "Default Rate") that is equal to the Lesser of (i) two percent (2%)
above the rate of interest established by Bank of America N.T.&S.A. at its San
Francisco headquarters for 90-day unsecured Loans to corporate borrowers with
the highest credit standing, adjusted monthly on the first day of each month,
such adjustment to be effective for the following month, and (ii) the highest
rate permitted by Law. The payment of such interest shall not constitute a
waiver of any default by Tenant hereunder.
1.11 The Basic Annual Rent has been established in contemplation that (i)
Tenant will occupy the Demised Premises for the entire Term and (ii) in the
event of an assignment of the Lease, Landlord and Tenant have agreed that
Landlord shall have the rights provided in Section 3.3 to terminate the Lease in
Lieu of consenting to such assignment. Tenant expressly acknowledges and agrees
that this Section 1.11 was a material inducement to Landlord in establishing the
Base Annual Rent in the amount herein provided and that Landlord has relied on
this covenant and agreement in executing this Lease.
OCCUPANCY
2.1 Tenant shall use and occupy Demised Premises for the purpose set forth
in Article I of Section I and for no other purpose. The character of the
occupancy of Demised Premises, as restricted by this Article and as further
restricted by Articles 3 and 15 and any of the Rules and Regulations attached to
this Lease, or hereafter adopted, is an additional consideration and inducement
for the granting of this Lease.
2.2 The manner in which the Common Areas are maintained and operated and
the expenditures therefor shall be at the sole discretion of Landlord, and the
use of such areas and facilities shall be subject to such Rules and Regulations,
including without Limitation the provisions of any covenants, conditions and
restrictions affecting the Park, as Landlord shall make from time to time.
Landlord shall not be responsible for the nonperformance of any such Rules and
Regulations or covenants, conditions and restrictions by any other tenant or
occupant of the Park.
2.3 The purpose of the attached Exhibit A is only to show the approximate
Location of the Demised Premises in the Bui Wing, and such Exhibit A is not
meant to constitute an agreement as to the specific Location of the Common Areas
or the elements thereof or of the access ways to the Demised Premises or the
Park. Landlord hereby reserves the right, at any time and from time to time, to
(a) make alterations in or additions to the Park and the Common Areas,
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including without Limitation, constructing new buildings, changes in the
Location, size, shape and number of driveways, entrances, parking spaces,
parking areas, Loading and unloading areas, Landscaped areas and walkways,
(b) close temporarily any of the Common Areas for maintenance purposes as
Long as reasonable access to the Demised Premises remains available, (c)
designate property outside the Park to be part of the Common Areas, (d) use
the Common Areas while engaged in making alterations in or additions or
repairs to the Park, and (a) change the arrangement and Location of entrances
or passageways, corridors, stairs, toilets and other public parts of the
Building. Tenant agrees that no diminution of Light, air or view by any
structure that may be erected in the Park after the Lease Date shall entitle
Tenant to any reduction of Base Annual Rent or result in any liability of
Landlord to Tenant.
2.4 Landlord reserves the right, from time to time, to grant such
easements, rights and dedications as Landlord deems necessary or desirable, and
to cause the recordation of parcel maps and covenants, conditions and
restrictions affecting the Park, as Long as such easements, rights, dedications,
maps and covenants, conditions and restrictions do not unreasonably interfere
with the use of the Demised Premises by Tenant. At Landlord's request, Tenant
shall join in the execution of any of the aforementioned documents. The Building
and the Park may be known by any name that Landlord may choose, which name may
be changed from time to time in Landlord's sole discretion.
2.5 The parking spaces to be provided to Tenant pursuant to Article L of
Section I shall be used for parking only by vehicles no larger than full-sized
passenger automobiles or pick-up trucks. Tenant shall not permit or allow any
vehicles that belong to or are controlled by Tenant or Tenant's employees,
suppliers, shippers, customers or invitees to be Loaded or parked in areas other
than those designated by Landlord for such activities. If Tenant permits or
allows any of the prohibited activities described in this Section 2.5, Landlord
shall have the right, in addition to all other rights and remedies that it may
have under this lease, to remove or tow away the vehicle involved without prior
notice to Tenant and the cost thereof shall be paid to Landlord within ten (10)
days after notice from Landlord to Tenant.
ASSIGNMENT, MORTGAGE, SUBLETTING
3.1 Neither Tenant, nor Tenant's legal representatives, successors or
assigns, shall assign, mortgage or encumber this Lease or sublet use
occupy, or permit Demised Premises or any part thereof to be used or
occupied by others, and any assignment, mortgage, encumbrance, sublease or
permission shall be voidable, at the option of Landlord and, at the further
option of Landlord, shall terminate this Lease. If this Lease be assigned,
or if Demised Premises or any part thereof be sublet or occupied by any
party other than Tenant, Landlord may, after default by Tenant, collect
rent from the assignee, subtenant or occupant and apply the net amount
collect to the recent herein reserved, but no such assignment, subletting,
occupancy or collection shall deemed a waiver of this covenant, or the
acceptance of the assignee, subtenant or occupant as Tenant, or a release
of Tenant from the further performance by Tenant of the obligations on the
part of Tenant herein contained. Any sale or other transfer, including
transfer by consolidation, merger or reorganization, of a majority of the
voting stock of Tenant, if Tenant is a corporation, or any sale or other
transfer of a majority of the partnership interests in Tenant, if Tenant is
a partnership, shall be an Assignment for purpose of this Article 3. As
used in this Section 3.1, the term "Tenant" shall also mean any entity that
has guaranteed Tenant's obligations under this Lease, and the prohibition
hereof shall be applicable to any sales or transfers of the stock or
partnership interests of said guarantor.
3.2 Notwithstanding any contrary provision of the foregoing, but subject
to the last paragraph of this Article, Tenant may assign this Lease upon the
following express conditions:
A. That the proposed assignee shall be subject to the prior written
consent of Landlord, which consent will not be unreasonably withheld but,
without Limiting the generality of the foregoing, it shall be reasonable for
Landlord to deny such consent if:
(1) the use to be made of Demised Premises by the proposed
assignee is (a) not generally consistent with the character and nature of all
other tenancies in the Building, or (b) a use which conflicts with any so-called
"exclusive" then in favor of, or for any use which is the same as that stated in
any percentage Lease to, another
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tenant of the Building or the Park, or (c) a use which would be prohibited by
any other portion of this Lease (including but not Limited to any Rules and
Regulations then in effect); or
(2) the character, moral stability, reputation and financial
responsibility of the proposed assignee are not satisfactory to Landlord or in
any event not at Least equal to those which were possessed by Tenant as of the
date of execution of this Lease;
That Tenant shall pay to Landlord Landlord's then standard
processing fee and shall reimburse Landlord for all reasonable
attorney's fees incurred by Landlord in connection therewith, the sum
of which shall not exceed five thousand dollars ($5,000), whether or
not such proposed assignment is consented to by Landlord;
C. That the proposed assignee shall execute an agreement pursuant to
which it shall be agreed to perform faithfully and be bound by all of the terms,
covenants, conditions, provisions and agreements of this Lease;
D. That an executed duplicate original of said assignment and
assumption agreement, on Landlord's then standard form, shall be delivered to
Landlord within five (5) days after the execution thereof, and that such
assignment shall not be binding upon Landlord until the delivery thereof to
Landlord and the execution and delivery of Landlord's consent thereto; and
E. That the consent by Landlord to an assignment shall not in any ways
be construed to relieve Tenant or the assignee from obtaining the express
consent in writing of Landlord to any further assignment or to release Tenant
from any Liability whether past, present or future under this Lease or to
release Tenant from any Liability under this Lease because of Landlord's failure
to give notice of default under or in respect of any of the terms, covenants,
conditions, provisions or agreements of this Lease.
3.3 Notwithstanding the foregoing provisions of this Article 3, it is
expressly agreed and understood that Landlord shall have the option to terminate
this Lease rather than approve the assignment hereof. Tenant understands and
acknowledges that such option is a material inducement for Landlord's agreeing
to lease the Demised Premises to Tenant upon the terms and conditions herein set
forth.
ALTERATIONS
4.1 Tenant shall make no alterations, decorations, additions or
improvements in or to Demised Premises without Landlord's prior written consent,
and then only by contractors or mechanics approved in advance in writing by
Landlord and only upon such conditions as Landlord may impose. Tenant shall
submit such information as Landlord shall require, including, without Limitation
(i) plans and specifications, 00 evidence of insurance coverage in such types
and amounts and from such insurers as Landlord deems satisfactory, and (M) all
permits and Licenses required in connection with such work. ALL such work shall
be done at Tenant's sole cost and expense at such times and in such manner as
Landlord may from time to time designate. ALL work done by Tenant shall be
performed in full compliance with all Laws, rules, orders, ordinances,
directions, regulations and requirements of all governmental agencies, offices,
departments, bureaus and boards having jurisdiction, and in full compliance with
the rules, orders, directions, regulations and requirements of the Insurance
Services Office and of any similar body. Before commencing any work, Tenant
shall (a) give Landlord at Least fifteen (15) days' written notice of the
proposed commencement of such work in order to give Landlord an opportunity to
prepare, post and record such notice as may be permitted by Law to protect
Landlord from having its interest in Demised Premises or the Building made
subject to a mechanic's Lien, and (b) shall secure, at Tenant's own cost and
expense, a completion and Lien indemnity bond, satisfactory to Landlord, for
said work. Any mechanic's Lien filed against Demised Premises or against the
Building or the Land upon which the Building is Located or any of the areas used
in connection with the operation of the Building for work claimed to have been
done for, or materials claimed to have been furnished to Tenant, shall be
discharged by Tenant, by bond or otherwise, within ten (10) days after the
filing thereof, at the cost and expense of Tenant. All alterations, decorations,
additions, or improvements upon Demised Premises, made by either party,
including without Limiting the generality of the foregoing, all paneling,
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partitions, railings, mezzanine floors, galleries and the like, shall, unless
Landlord elects otherwise [which election shall be made by giving a notice
pursuant to the provisions of Article 27 not less than three (3) days prior to
the expiration or other termination of this Lease or any renewal or extension
thereof], become the property of Landlord, and shall remain upon, and be
surrendered with Demised Premises, as a part thereof, at the end of the Term. If
Tenant shall remove any property from Demised Premises, Tenant shall repair or,
at Landlord's option, shall pay to Landlord the cost of repairing any damage
arising from such removal. Tenant shall not install any machine or equipment
which causes noise, heat, cold or vibration to be transmitted to the structure
of the building without Landlord's prior written consent, which consent may be
conditioned on such terms as Landlord may require.
Repairs
5.1 Tenant shall take good care of Demised Premises and fixtures therein
and, subject to the provisions of Article 4 hereof, shall, except for ordinary
wear and tear, make all repairs in and about Demised Premises necessary to
preserve them in food order and condition, which repairs shall be in quality and
class equal to the original work. Landlord, however, shall repair the Building
plumbing, heating, ventilating or air conditioning and electrical systems and
make structural repairs within Demised Premises arising from ordinary wear and
tear or through causes over which Tenant has no control, except as otherwise
provided in this Lease. Landlord may repair, at the expense of Tenant, all
damage or injury to Demised Premises, or to the Building and Landlord may
repair, at the expense of Tenant, all damage or injury to Demised Premises, or
to the Building and its fixtures, appurtenances or equipment or to any of the
areas used in connection with the operation of the Building, done by Tenant or
Tenant's agents, servants, employees, contractors, visitors or Licensees or
caused by moving property of Tenant in or out of the Building, or by
installation or removal of furniture or other property, or resulting from fire,
heating, ventilating or air conditioning unit or system, short circuits,
overflow or Leakage of water, steam, gas, sewer gas, sewage or odors, or by
frost or by bursting or Leaking of pipes or plumbing works, or gas, or from any
other cause, due to the carelessness, negligence, or improper conduct of Tenant
or Tenant's agents, servants, employees, contractors, visitors or Licensees.
Landlord shall have the right to replace, at the expense of Tenant, any and all
plate and other glass damaged or broken from any cause whatsoever in or about
Demised Premises unless caused by or due to the sole negligence of Landlord,
Landlord's agents, servants or employees. Except as provided in Article 10
hereof, there shall be no allowance to Tenant for a diminution of rental value,
and no Liability on the part of Landlord by reason of inconvenience, annoyance
or injury to business arising from the making of, or the failure to make, any
repairs, alterations, decorations, additions or improvements in or to any
portion of the Building or any of the areas used in connection with the
operation thereof, or Demised Premises, or in or to fixtures, appurtenances or
equipment, or by reason of the act or neglect of Tenant or any other tenant or
occupant of the Building; and in no event shall Landlord be responsible for any
consequential damages arising or alleged to have arisen from any of the
foregoing matters except those arising as a result of Landlord's gross
negligence or willful misconduct. Tenant hereby waives all rights under the
provisions of Sections 1932, 1933, 1941 and 1942 of the Civil Code of the State
of California and all rights under any Law in existence during the Term of this
Lease authorizing a tenant to make repairs at the expense of a Landlord or to
terminate a Lease upon the complete or partial destruction of the teased
premises.
REQUIREMENTS OF LAW, INSURANCE
6.1 Tenant, at Tenant's expense, shall comply with all Laws, rules, orders,
ordinances, directions, regulations and requirements of federal, state, county
and municipal authorities pertaining to Tenant's use of Demised Premises and
with the recorded covenants, conditions and restrictions affecting the Park, and
with any direction of any public officer or officers, pursuant to Law, which
shall impose any duty upon Landlord or Tenant with respect to the use or
occupation of Demised Premises, and shall not do or permit to be done, any act
or thing upon Demised Premises, which will invalidate or be in conflict with any
insurance policy covering the Building or any of the areas used in connection
with the operation thereof or its fixtures, appurtenances or equipment or the
property located therein, and shall not do or permit to be done, any act or
thing upon Demised Premises, which will invalidate or be in conflict with any
insurance policy covering the Building or any of the areas used in connection
with the operation thereof or its fixtures, appurtenances or equipment or the
property Located therein, and shall not do or permit to be done, any act or
thing upon Demised Premises which shall or might subject Landlord to any
Liability or responsibility for injury to any person or persons or to any
property by reason of any business or operation being carried on upon Demised
Premises or for any
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other reason, and Tenant hereby indemnifies Landlord against any such
Liability or responsibility. Tenant shall not place a Load upon any floor of
Demised Premises exceeding the floor Load per square foot area which such
floor was designed to carry and which is allowed by Law. Business machines
and mechanical equipment shall be placed and maintained by Tenant at Tenant's
expense in settings sufficient in Landlord's judgment to absorb and prevent
vibration, noise and annoyance.
INSURANCE
6.2 Tenant shall comply with all rules, orders, directions, regulations and
requirements of the Insurance Services Office or any other similar body, and
shall not do, or permit anything to be done, in or upon Demised Premises, or
bring or keep anything therein, which shall increase the rates of any insurance
on the Building or any of the areas used in connection with the operation
thereof or its fixtures, appurtenances or equipment or on property Located
therein. If, by reason of failure of Tenant to comply with the provisions of
this Article, any insurance rate shall at any time be higher than it otherwise
would be, then Tenant shall reimburse Landlord for that part of all such
premiums thereafter paid by Landlord which shall have been charged because of
such violation by Tenant, and shall make such reimbursement upon the first day
of the month following such outlay by Landlord. in any action or proceeding
wherein Landlord and Tenant are parties, a schedule or "make-up" of rate for the
Building or Demised Premises issued by the Insurance Services office, or other
body making insurance rates for the Building or Demised Premises, shall be
conclusive evidence of the facts therein stated and of the several items and
charges in the insurance rate then applicable to Demised Premises.
SUBORDINATION, GROUND LEASES, MORTGAGE
SUBORDINATION
7.1 This Lease is subject and subordinate to 0) all ground or underlying
Leases, mortgages and deeds of trust which now affect the real property of which
Demised Premises forms a part or affect the ground or underlying Leases, (ii)
all renewals, modifications, consolidations, replacements and extensions
thereof, and (M) any ground or underlying Leases, mortgages, or deeds of trust
which may hereafter affect the rest property of which Demised Premises forms a
part or affect the ground or underlying Leases, without the necessity of
executing any instrument to effectuate such subordination. Notwithstanding the
preceding sentence, Tenant, or Tenant's successors- in- interest, wit( execute
and deliver upon the demand of Landlord any and all instruments desired by
Landlord evidencing such subordination in the manner requested by Landlord.
Landlord is hereby irrevocably appointed and authorized as agent and
attorney-in-fact of Tenant to execute and deliver all such subordination
instruments in the event Tenant fails to execute and deliver said instruments
within five (5) days after written request therefor.
GROUND LEASES
7.2 Tenant agrees that, at the option of the Landlord under any ground
lease now or hereafter affecting the real property of which Demised Premises
forms a part, Tenant shall attorn to said Landlord in the event of the
termination or cancellation of such ground lease and if requested by said
Landlord, enter into a new lease with said Landlord (or a successor ground
lessee designated by said Landlord) for the balance of the term then remaining
hereunder upon the same terms and conditions as those herein provided.
Mortgage
7.3 In the event of foreclosure or exercise of power of sale under any
mortgage or deed of trust now or hereafter affecting the real property of
which Demised Premises forms a part, the holder of any such mortgage or deed
of trust (or purchases at any sale pursuant thereto) shall have the option
(I) supplementing this Article, to require Tenant to attorn to such holder or
purchaser, an d to enter into a new lease with such holder or purchaser, and
to enter into a new lease with such holder or purchaser (as Landlord) for the
balance of the term then remaining
6
hereunder upon the same terms and conditions as those herein provided, or
(ii) notwithstanding this Article, to elect that this Lease become or remain,
as the case may be, superior to said mortgage or deed of trust.
7.4 Tenant shall, upon request by any such holder or purchaser, execute and
deliver any and all instruments desired by such holder or purchaser evidencing
the superiority of this Lease to any said mortgage or deed of trust.
7.5 In the event that Landlord or any such holder at any time requests that
this Article contains different language to the same general effect, Tenant
agrees to promptly execute and deliver an amendment of this Lease memorializing
the same.
RULES AND REGULATIONS
8.1 Tenant and Tenant's agents, servants, employees, contractors, visitors
and Licensees shall observe faithfully and comply strictly with the rules and
regulations attached hereto and made a part hereof, and such other and further
reasonable rules and regulations as Landlord or Landlord's agents may from time
to time adopt. Notice of any additional rules or regulations shall be given in
such manner as Landlord may elect. Landlord shall not be liable to Tenant for
violation of any of said Rules and Regulations, or the breach of any term,
covenant, condition, provision or agreement in any Lease, by any other tenant or
other party in the Building or in the Park.
LIABILITY AND INDEMNIFICATION
9.1 Tenant agrees to indemnify Landlord against and save Landlord harmless
from any and all loss, cost, Liability, damage and expense, including, without
Limitation, penalties, fines and counsel fees, incurred in connection with or
arising from any cause whatsoever in, on or about the Demised Premises,
including, without Limiting the generality of the foregoing, (i) any default by
Tenant in the observance or performance of any of the terms, covenants or
conditions of this Lease on Tenant's part to be observed or performed, (H) the
use or occupancy, or manner of use or occupancy, of the Demised Premises by
Tenant or any person claiming through or under Tenant, or of the employees,
suppliers, shippers, customers or invitees of Tenant or any such other person,
in, on or about the Demised Premises, the Building or the Park, whether prior
to, during, or after the expiration of, the Term including, without (imitation,
any act, omission or negligence in the making or performing of any alterations.
Tenant further agrees to indemnify Landlord, Landlord's agents, and the Lessor
or Lessors under all ground or underlying Leases, against and hold them harmless
from any and all loss, cost, liability, damage and expense including, without
Limitation, counsel fees, incurred in connection with or arising from any claims
by any persons by reason of injury to persons or damage to property occasioned
by any use, occupancy, condition, occurrence, happening, act, omission or
negligence referred to in the preceding sentence.
9.2 Landlord shall not be responsible for or Liable to Tenant for any Loss
or damage that may be occasioned by or through the acts or omissions of persons
occupying adjoining premises or any part of the premises adjacent to or
connected with the Demised Premises or any part of the Building or Park or for
any Loss or damage resulting to Tenant or its property from burst, stopped or
Leaking water, gas, sewer or steam pipes or for any damage to or Loss of
property within the Demised Premises from any causes whatsoever, including
Latent defects in the Building, the Park, or Demised Premises or theft, except
for loss or damage caused by Landlord's gross negligence or willful misconduct.
9.3 Except where a longer or shorter period is specifically provided for in
this Lease for a particular expenditure, Tenant shall pay to Landlord, within
ten (10) days after delivery by Landlord to Tenant of bills or statements
therefor: (i) sums equal to all expenditures made and monetary obligations
incurred by Landlord including, without Limitation, expenditures made and
obligations incurred for reasonable counsel fees, in connection with the
remedying by Landlord of Tenant's defaults; (H) sums equal to all losses, costs,
liabilities, damages and expenses referred to in Section 9.1; and (iii) sums
equal to all expenditures made and monetary obligations incurred by Landlord,
including without Limitation, expenditures made and obligations incurred for
reasonable counsel fees, in collecting or attempting to collect the Base Annual
Rent, any additional charges or any other sum of money accruing under this Lease
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or in enforcing or attempting to enforce any rights of Landlord under this Lease
or pursuant to law. Tenant's obligations under this Article 9 shall survive the
expiration or sooner termination of the Term.
DAMAGE OR DESTRUCTION AND MUTUAL WAIVER OF SUBROGATION
10.1 If Demised Premises shall be partially damaged by fire or other cause
without the fault or neglect of Tenant, Tenant's agents, servants, employees,
contractors, visitors or Licensees, the damages shall be repaired by and at the
expense of Landlord and the Base Annual Rent until such repairs shall be made
shall be apportioned according to the part of Demised Premises which is
tenantable or used by Tenant. If such partial damage is due to the fault or
neglect of Tenant or Tenant's agents, servants, employees, contractors, visitors
or Licensees, there shall be no apportionment or abatement of Base Annual Rent,
unless Landlord is reimbursed for such abatement of Base Annual Rent or
additional charges pursuant to any rental insurance policies that Landlord may,
in its sole discretion, elect to carry. No Liability shall accrue for reasonable
delay which may arise by reason of adjustment of insurance on the part of
Landlord or Tenant, for reasonable delay on account of "Labor troubles," or any
other cause beyond Landlord's control. If Demised Premises are totally damaged
or are rendered wholly untenantable by fire or other cause, and Landlord shall
decide not to restore or rebuild the same, or if the Building shall, in
Landlord's sole judgment, be so damaged that Landlord shall decide to demolish
it or to rebuild it, then in any of such events Landlord may, within ninety (90)
days after such fire or other cause, give Tenant notice of such decision, and
thereupon the term of this Lease shall expire by lapse of time upon the third
day after such notice is given, and Tenant shall vacate Demised Premises and
surrender the same to Landlord.
10.2 Notwithstanding anything contained in this Article 10 to the contrary,
in no event shall Landlord be required to spend for any repair, replacement or
reconstruction of the Demised Premises or the Building an amount greater that
the insurance proceeds actually received by Landlord as a result of the fire or
other casualty causing such loss, damage or destruction.
10.3 The provisions of this Lease, including this Article 10, constitute an
express agreement between Landlord and Tenant with respect to any and all damage
to, or destruction of, all or any part of the Demised Premises, the Building or
any other portion of the Park, and any stature or regulation of the State of
California, including, without limitation, Sections 1932(2) and 1933(4) of the
California Civil Code, with respect to any rights or obligations concerning
damage or destruction in any absence of an express agreement between the
parties, and any similar statute or regulation, now or hereafter in effect,
shall have no application to this Lease or to any damage to or destruction of
all or any part of the Demised Premises, the Building or any other portion of
the Park.
10.4 Notwithstanding the provisions of this Article, Landlord waives any
and at L rights of recovery against Tenant for or arising out of damage to or
destruction of the Building or Demised Premises, from causes then included under
standard fire and extended coverage insurance policies or endorsements, whether
or not such damage or destruction shall have been caused by the negligence of
Tenant, its agents, servants, employees, contractors, visitors or Licensees, but
only to the extent that Landlord's insurance policies then in force permit such
waiver and only to the extent of insurance proceeds actually received by
Landlord for such damage or destruction. Tenant waives any and all rights of
recovery against Landlord for or arising out of damage to or destruction of any
property of Tenant, from causes then included under standard fire and extended
coverage insurance policies or endorsements, whether or not caused by the
negligence of Landlord, its agents, servants, employees, contractors, visitors
or Licensees, but only to the extent that Tenant's insurance policies then in
force permit such waiver. Landlord and Tenant represent that their present
insurance policies now in force permit such waiver.
10.5 If at any time during the term of this Lease either party shall give
no Less than five (5) days prior notice to the other certifying that any
insurance carrier which shall have issued any such policy covering any of the
property above mentioned shall refuse to consent to the aforesaid waiver of
subrogation, or if such carrier shall consent to such waiver only upon the
payment of an additional premium (and such additional premium is not paid by the
other party hereto), or such carrier shall revoke a consent previously given or
shall cancel or threaten to cancel any policy previously issued and then in
force and effect, because of such waiver of subrogation, then, in any of such
events, the
8
waiver in this Article shall thereupon be of no further force and effect as
to the Loss, damage or destruction covered by such policy; provided, however,
that if at any time thereafter such consent shall be obtained therefor
without an additional premium from any existing or substitute insurance
carrier, the waiver hereinabove provided for shall again become effective.
EMINENT DOMAIN
11.1 If the whole or any part of Demised Premises shall be taken or
condemned for all or any portion of the Term by any competent authority for any
public or quasi-public use or purpose, or transferred by agreement in connection
with such public or quasi-public use or purpose with or without any condemnation
action or proceeding being instituted, then, and in either such event, the Term
of this Lease shall, at the option of the Landlord, terminate as of the date
when the possession of the part so taken shall be required for such use or
purpose, and without apportionment of the award, such that the entire award is
paid to Landlord. The then current rental, however, shall in any such case be
apportioned. Tenant hereby expressly assigns to Landlord any award which may be
made in any taking or condemnation as therein provided, together with any and
all rights of Tenant now or hereafter arising in or to the same or any part
thereof.
11.2 Nothing contained herein shall be deemed to give Landlord any interest
in, or to require Tenant to assign to Landlord, any award made to Tenant
specifically for its relocation expenses, the taking of personal property and
fixtures belonging to Tenant, or the interruption of or damage to Tenant's
business if such award is made separately to Tenant and not as part of the
damages recoverable by Landlord.
11.3 If all or any portion of the Demised Premises is condemned or
otherwise taken for public or quasi-public use for a Limited period of time,
this Lease shall remain in full force and effect and Tenant shall continue to
perform all terms, conditions and covenants of this Lease. Tenant shall be
entitled to receive the entire award made in connection with any such temporary
condemnation or other taking.
11.4 Landlord may, without any obligation to Tenant, agree to sell and/or
convey to the condemnor the Demised Premises, the Building, the Park or any
portion thereof sought by the condemnor, free from this Lease and the rights of
Tenant hereunder, without first requiring that any action or proceeding be
instituted or, if instituted, pursued to a judgment.
SERVICES
ELEVATORS, HEATING, VENTILATING, AIR CONDITIONING, ELECTRICITY, WATER, AND
CLEANING
12.1 Landlord shall:
A. Provide automatic elevator facilities on usual business days and have
one elevator available at all other times;
B. On usual business days (and at other times for a reasonable additional
charge to be fixed by Landlord) ventilate Demised Premises and furnish heating
or air conditioning when in the judgment of Landlord it may be required for the
comfortable occupancy of Demised Premises. Tenant agrees to keep and cause to be
kept closed all doors from Demised Premises and the windows in Demised Premises,
and 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
functioning and protection of the heating, ventilating and air conditioning
system. Tenant shall not install or use in Demised Premises any equipment which
would generate heat so as to adversely affect the heating, ventilating and air
conditioning system. Landlord, throughout the term of this Lease, shall have
free access to any and all mechanical installations of Landlord or Tenant,
including, but not limited to, air conditioning, fan, ventilating and machine
rooms, telephone rooms and electrical closets. Tenant agrees that there shall be
no construction of partitions or other obstructions which might interfere with
Landlord's free access thereto, or interfere with the moving of Landlord's
equipment to or from the
9
enclosures containing said installations. Tenant further agrees that neither
Tenant, nor its agents, servants, employees, contractor, visitors or
licensees shall at any time enter the said enclosures o tamper with, adjust,
touch or otherwise in any manner affect Landlord's said mechanical
installations;
C. Provide electricity for "Landlord's Standard" lighting and normal
office business machine (not including computers or electronic data processing
or ancillary equipment) purposes only. Tenant agrees not to use any apparatus or
device in, or upon, or about Demised Premises which may in any way increase the
amount of such electricity usually furnished or supplied to said premises and
Tenant further agrees not to connect any apparatus or device to the wires,
conduits or pipes, or other means by which such electricity is supplied, for the
purpose of using additional or unusual amounts of electricity, without the prior
written consent of Landlord. If Tenant uses the same to excess or follows a
regular practice of using electricity beyond the usual business hours on normal
business days, Landlord shall have the right to estimate from time to time (both
retroactively and prospectively) the amount that Tenant should pay on account
thereof, and Tenant, after notice by Landlord of such estimate or revised
estimate, agrees to pay such amount on the first day of each calendar month
thereafter or, if such estimate be made during the last month of the term or
after its expiration, promptly upon demand by Landlord. At all times Tenant's
use of electric current shall never exceed the capacity of the feeders to the
Building or the risers or wiring installation. Tenant shall not install or use
or permit the installation or use in Demised Premises, of any computer or
electronic data processing or ancillary equipment or any other electrical
apparatus designed to operate on electrical current in excess of 110 volts and 5
amps per machine, without the prior written consent of Landlord;
D. Furnish water for drinking and lavatory purposes only, but if Tenant
requires, uses or consumes water for any purpose 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 the 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; and
E. Cause Demised Premises to be kept clean, provided the same are used
exclusively as ordinary desk-type offices and are kept reasonably in order by
Tenant, and, if to be kept clean by Tenant, no one other than persons approved
in advance in writing by Landlord shall be permitted to enter Demised Premises
for such premises. If Demised Premises or any part thereof is not used
exclusively as ordinary desk-type offices, same shall be kept clean and in order
by Tenant, at Tenant's expense, and to the satisfaction of Landlord, and by
persons approved in advance in writing 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
Demised Premises exclusively as ordinary desk-type offices.
12.2 Tenant shall at all times maintain at its own cost and expense all
plumbing facilities and equipment attached thereto within Demised Premises in
good order, condition and repair to the satisfaction of Landlord. Tenant hereby
indemnifies Landlord against any and all claims, Liabilities, losses, damages,
costs and expenses whatsoever (including, but not Limited to, attorneys' fees
and expenses) whether suffered by Landlord or other occupants or persons in the
Building, the Park or any of the areas used in connection with the operation
thereof arising out of the matters referred to in this subsection, unless caused
by or due to the sole negligence of Landlord, Landlord's agents, servants or
employees. Landlord shall not be obligated to clean or provide supplies for any
such plumbing facilities or equipment attached thereto, and if the rooms in
which any such facilities or equipment are Located require cleaning in excess of
that normally provided by Landlord for ordinary desk-type office space, Tenant
shall, at Tenant's expense, cause any such excess cleaning to be performed only
by a contractor approved in advance in writing by Landlord. Landlord hereby
reserves the right, without Limiting the generality of the foregoing, to require
that any such cleaning be performed by Landlord's regular cleaning contractor
for the Bui Wing. Nothing herein contained shall be construed to confer upon
Tenant the right to install any plumbing facilities without the prior written
consent of Landlord.
10
12.3 Landlord reserves the right to stop service of the elevator, plumbing,
heating, ventilating, air conditioning and electric or other mechanical systems,
or cleaning services when necessary, without any offset in rent, by reason of
accident or emergency or for inspection, repairs, alterations, decorations,
additions or improvements, which in the judgment of Landlord are desirable or
necessary to be made, until same shall have been completed, and shall have no
responsibility or liability for failure to supply any of such services in such
instance. However, in the even a service is stopped such that Tenant cannot
reasonably conduct its business for a period exceeding ten (10) business days,
Tenant's rent shall abate until such service is restored and Tenant can conduct
business in the Demised Premises.
ACCESS TO PREMISES
13.1 Tenant shall permit Landlord to use and maintain pipes and conduits in
and through Demised Premises. Landlord and Landlord's agents shall have the
right to enter Demised Premises at all times, to examine the same and to clean
and make such repairs, alterations, decorations, additions and improvements as
Landlord may deem necessary or desirable, and Landlord shall be allowed to take
all material into and upon Demised Premises that may be required therefor
without the same constituting an eviction of Tenant in whole or in part, and
subject to the provisions of Article 10, the Base Annual Rent reserved shall in
no wise abate white said repairs, alterations, decorations, additions or
improvements are being made, by reason of inconvenience, annoyance or injury to
the business of Tenant because of the prosecution of any such work, or
otherwise. Landlord and Landlord's agents are expressly granted permission to
show Demised Premises at any reasonable time to prospective tenants, mortgagees,
purchasers, Lessees of the Building and other persons with a business interest
therein. If, during the last month of the Term, Tenant shall have removed all or
substantially all of Tenant's property therefrom, Landlord may immediately enter
and alter, renovate and redecorate Demised Premises, without elimination or
abatement of rent or other compensation, and such acts shall have no effect upon
this Lease.
If Tenant shall not be personally present to open and permit an entry into
Demised Premises, at any time, when for any reason an entry therein shall be
necessary or permissible hereunder, Landlord or Landlord's agents may enter the
same by a master key, or may forcibly enter the same, without rendering Landlord
or such agents liable therefor (I during such entry Landlord or Landlord's
agents shall accord reasonable care to Tenant's property therefrom, Landlord may
immediately enter and alter, renovate and redecorate Demised Premises, without
elimination or abatement of rent or other compensation, and such acts shall have
no effect upon this Lease.
If Tenant shall not be personally present to open and permit an entry into
Demised Premises, a any time, when for any reason an entry therein shall be
necessary or permissible hereunder, Landlord or Landlord's agents may enter the
same by a master key, or may forcibly enter the same, without rendering Landlord
or such agents liable therefor (if during such entry Landlord or Landlord's
agents shall accord reasonable care to Tenant's property), and without in any
manner affecting the obligations, terms, covenants, conditions, provisions or
agreement of this Lease. Nothing herein contained, however, shall be deemed or
construed to impose upon Landlord any obligation, responsibility or liability
whatsoever, for the care, supervision or repair of the Park or the Building or
any part thereof, other than an otherwise provided in this Lease.
TENANT'S INSURANCE
14.1 Tenant shall carry at its expense and maintain in force during the
Term the following insurance:
A. Comprehensive General Liability Insurance (including protective
Liability coverage on operations of independent contractors engaged in
construction and also blanket contractual Liability insurance) on an
"occurrence", basis for the benefit of Tenant and Landlord as named insured
against claims for "personal injury" liability including without Limitation
bodily injury, death or property damage Liability with a Limit of not Less than
One Million Dollars ($1,000,000) in the event of "personal injury" to any number
of persons or of damages to property arising out of any one "occurrence"; such
insurance may be furnished under a "primary" policy and an "umbrella" policy,
provided that it is primary insurance and not excess over or contributory with
any insurance in force for Landlord;
11
B. Insurance against Loss or damage by fire and such other risks and
hazards as are insurable under present and future standard forms of fire and
extended coverage insurance policies, to the personal property, furniture,
furnishings and fixtures belonging to Tenant Located in the Demised Premises for
not less than 100% of the actual replacement value thereof. Such insurance shall
provide for a waiver of the insurer's right of subrogation against Landlord; and
C. Such other insurance as may be required by Landlord in connection
with the Demised Premises or Tenant's activities in the Park.
14.2 All such insurance shall name Landlord as additional insured, shall be
effected under policies issued by insurers, shall be in forms and for amounts
approved by Landlord and shall provide that Landlord shall receive thirty (30)
days' written notice from the insurer prior to any cancellation or change of
coverage.
14.3 Tenant shall deliver policies of such insurance or certificates
thereof to Landlord on or before the Commencement Date, and thereafter at Least
thirty (30) days before the expiration dates of expiring policies; and, in the
event Tenant shall fail to procure such insurance, or to deliver such policies
or certificates, Landlord may, at its option, procure same for the account of
Tenant, and the cost thereof shall be paid to Landlord as additional charges
within ten (10) days after delivery to Tenant of bills therefor. Nothing
contained in this Article 14 shall be construed as a Limitation of Tenant's
Liability hereunder.
CERTIFICATES OF OCCUPANCY
15.1 Tenant shall not at any time use or occupy Demised Premises in
violation of the certificates of occupancy issued for the Building or the
Demised Premises and in the event that any department of the city or county in
which the Building is Located, or the State of California, shall hereafter at
any time contend or declare that Demised Premises are used for a purpose which
is in violation of such certificate or certificates of occupancy, Tenant shall,
upon five (5) days' notice from Landlord or any governmental agency immediately
discontinue such use of Demised Premises. Failure by Tenant to discontinue such
use after such notice shall be considered a default under this Lease and
Landlord shall have the right to terminate this Lease immediately, and in
addition thereto shall have the right to exercise any and all rights and
privileges and remedies given to Landlord by and pursuant to the provisions of
Article 18 hereof. The statement in this Lease of the nature of the business to
be conducted by Tenant in Demised Premises shall not be deemed or construed to
constitute a representation or guaranty by Landlord that such business is Lawful
or permissible or will continue to be Lawful or permissible under any
certificate of occupancy issued for the Bui Wing, or otherwise permitted by Law.
LIFE-SAFETY SYSTEMS
16.1 If there now is or shall be installed in the Building a sprinkler
system, heat or smoke detection system or any other so-called Life-safety system
and any such system or any of its appliances shall be damaged or injured or not
in proper working order by reason of any act or omission of Tenant, Tenant's
agents, servants, employees, contractors, visitors or Licensees, Tenant shall
forthwith restore the same to good working condition; and if the Insurance
Services office or any other similar body or any bureau, department or official
of the state, county or city government, or any governmental authority having
jurisdiction, require or recommend that any changes, modifications, alterations,
or additional equipment be made or supplied in or to any such system by reason
of Tenant's business, or the Location of partitions, trade fixtures, or other
contents of Demised Premises, or if any such changes, modifications, alterations
or additional equipment become necessary to prevent the imposition of a penalty
or charge against the full allowance for any such system in the insurance rate
as fixed by said office, or by any insurance company, Tenant shall, at Tenant's
expense, promptly make and supply such changes, modifications, alterations or
additional equipment.
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BANKRUPTCY
17.1 PRIOR TO TERM. If at any time prior to the date herein fixed as the
commencement of the Term of this Lease there shall be filed by or against Tenant
in any court pursuant to any statute either of the Unites States or of any state
a petition in bankruptcy or insolvency or for reorganization or for the
appointment of a receiver or trustee or conservator of all or a portion of
Tenant's property, or if Tenant makes an assignment for the benefit of
creditors, this Lease shall ipso facto be canceled and terminated and in such
event neither Tenant nor any person claiming through or under Tenant or by
virtue of any statute or by an order of any court shall be entitled to
possession of Demised Premises and Landlord, in addition to the other rights and
remedies given by subsection 17.3 hereof or by virtue of any other provision in
this Lease contained or by virtue of any statute or rule of law, may retain as
damages any rent, security, deposit or moneys received by it from Tenant or
others on behalf of Tenant.
17.2 DURING TERM. If at the date fixed as the commencement of the Term of
this Lease or if at any time during the Term there shall be filed by or against
Tenant in any court pursuant to any statute either of the United States or of
any state a petition in bankruptcy or insolvency or for reorganization or for
the appointment of a receiver of trustee or conservator of all or a portion of
Tenant's property, or if Tenant makes an assignment for the benefit of
creditors, this Lease, at the option of Landlord exercised within a reasonable
time after notice of the happening of any one or more of such events, may be
canceled and terminated and in such event neither Tenant nor any person claiming
through or under Tenant or by virtue of any statute or of an order of any court
shall en entitled to possession or to remain in possession of Demised Premises
but shall forthwith quit and surrender Demised Premises, and Landlord, in
addition to the other rights and remedies granted by subsection 17.3 hereof or
by virtue of any other provision in this Lease contained or by virtue of any
stature or rule of law, may retain as damages any rent, security, deposit or
moneys received by it from Tenant or others on behalf of Tenant.
17.3 MEASURE OF DAMAGES. In the event of the termination of this Lease
pursuant to subsections 17.1 and 17.2 of this Article, Landlord shall be
entitled to the same rights and remedies as those set forth in subsections 18.4
and 18.5 and in Article 21 of this Lease.
17.4 In the event of the occurrence of any of those events specified in
this Article, if Landlord shall not choose to exercise, or by Law shall not be
able to exercise, its rights hereunder to terminate this Lease upon the
occurrence of such events, then, in addition to any other rights of Landlord
hereunder or by taw, (i) Landlord shall not be obligated to provide Tenant with
any of the services specified in Article 12, unless Landlord has received
compensation in advance for such services, and the parties agree that Landlord's
estimate of the compensation required with respect to such services shall
control, and (ii) neither Tenant, as debtor in-possession, nor any trustee or
other person (hereinafter collectively called the "Assuming Tenant") shall be
entitled to assume this Lease unless, on or before the date of such assumption,
the Assuming Tenant (a) cures, or provides adequate assurance that the latter
will promptly cure, any existing default under this Lease, (b) compensates, or
provides adequate assurance that the Assuming Tenant will promptly compensate,
Landlord for any pecuniary toss (including, without Limitation, attorneys' fees
and disbursements) resulting from such default, and (c) provides adequate
assurance of future performance under this Lease, it being covenanted and agreed
by the parties that, for such purposes, any cure or compensation shall be
effected by the immediate payment of any monetary default or any required
compensation, or the immediate correction or bonding of any nonmonetary default;
any "adequate assurance" of such cure or compensation shall be effected by the
establishment of an escrow fund for the amount at issue or by bonding and
"adequate assurance" of future performance shall be effected by the
establishment of an escrow fund for the amount at issue or by bonding, it being
covenanted and agreed by Landlord and Tenant that the foregoing provision was a
material part of the consideration for this Lease.
DEFAULT
18.1 It shall, at Landlord's option, be deemed a breach of this Lease if
0) Tenant defaults (a) in the making of any payments of money pursuant to this
Lease, or (b) in fulfilling any other term, covenant, condition, provision or
agreement of this Lease if said default under this clause (b) continues to exist
at the expiration of ten (10) days after notice thereof given by Landlord to
Tenant or (ii) Demised Premises becomes vacant or deserted or (iii) Tenant shall
13
cease to occupy Demised Premises or shall remove substantially all of
Tenant's furniture therefrom or (iv) Tenant shall fail to move into or take
possession of Demised Premises within fifteen (15) days after the
commencement of the Term or (v) any execution or attachment shall be issued
against Tenant or any of Tenant's property or (vi) Demised Premises shall be
taken or occupied or attempted to be taken or occupied by someone other than
Tenant or (vii) Tenant shall default with respect to any other Lease between
(a) Landlord and Tenant, or (b) any parent company or subsidiary company or
affiliate or agent of Landlord, and Tenant or (viii) Tenant assigns or
otherwise transfers substantially all of the assets used in connection with
the business conducted in Demised Premises. Notwithstanding the above, if
Tenant's default is non-monetary in nature, and is not a breach of Article 3
or Article 17, Tenant shall not be in breach of this Lease if Tenant
immediately commences to cure the default after notice thereof given by
Landlord to Tenant and Tenant diligently and continuously prosecutes the cure
to completion.
18.2 In the event that Landlord elects, pursuant to subsection 18.1 of
this Article, to declare a breach of this Lease, then Landlord shall have the
right to give Tenant five (5) days, notice of intention to end the Term of
this Lease and thereupon, at the expiration of said five (5) days, the Term
of this Lease shall expire as fully and completely as if that day were the
day herein definitely fixed for the expiration of the Term hereof and Tenant
shall then quit and surrender Demised Premises to Landlord, but Tenant shall
remain liable as hereinafter provided. if Tenant fails to so quit and
surrender Demised Promises as aforesaid, Landlord shall have the right,
without notice, to re-enter Demised Premises either by force or otherwise and
dispossess Tenant and the Legal representatives of Tenant and all other
occupants of Demised Premises by unlawful detainer or other summary
proceedings, or otherwise, and remove their effects and regain possession of
Demised Premises (but Landlord shall not be obligated to effect such removal)
and Tenant hereby waives service of notice of intention to re-enter or to
institute Legal proceedings to that end.
18.3 In the event of any breach of this Lease by Tenant (and regardless of
whether or not Tenant has abandoned Demised Premises), this Lease shall not
terminate unless Landlord, at Landlord's option, elects at any time when Tenant
is in breach of this Lease to terminate Tenant's right to possession as provided
in subsection 18.2 of this Article or, at Landlord's further option, by the
giving of any notice (including but not Limited to any notice preliminary or
prerequisite to the bringing of Legal proceedings in unlawful detainer)
terminates Tenant's right to possession. For so long as this Lease continues in
effect, Landlord may enforce all of Landlord's rights and remedies under this
Lease, including the right to recover all rent as it becomes due hereunder. For
the purposes of this subsection, the following shall not constitute termination
of Tenant's right to possession: (i) acts of maintenance or preservation of
efforts to relet Demised Premises, or (ii) the appointment of a receiver upon
initiative of Landlord to protect Landlord's interest under this Lease.
18.4 In the event of termination of this Lease or termination of Tenant's
right to possession (as a result of Tenant's breach of this Lease or pursuant to
Article 17), Landlord shall have:
A. The right to remove any and all persons and property from Demised
Premises, with or without legal process, and pursuant to such rights and
remedies as the Laws of the State of California shall then provide or permit,
but Landlord shall not be obligated to effect such removal. Said property may,
at Landlord's option, be stored or otherwise dealt with as provided within this
Lease or as such Laws may then provide or permit, including but not Limited to
the right of Landlord to sell or otherwise dispose of the same or to store the
same, or any part thereof, in a warehouse or elsewhere at the expense and risk
of and for the account of Tenant.
B. The rights and remedies provided by California Civil Code Section
1951.2 to recover from Tenant upon termination of the Lease:
(1) the worth at the time of award of the unpaid rent and other
charges which had been earned at the time of termination;
(2) the worth at the time of award of the amount by which the
unpaid rent and other charge 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;
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(3) subject to Subdivision (c) of the California Civil Code
Section 1951.2, the worth at the time of award of the amount by which the unpaid
rent and other charges for the balance of the Term after the time of award
exceeds the amount of rental loss that Tenant proves could be reasonably
avoided; and
(4) any other amount necessary to compensate Landlord for all the
detriment proximately caused by Tenant's failure to perform its obligations
under this Lease or which in the ordinary course of things would be Likely to
result therefrom. The "worth" at the time of award of the amounts referred to in
clauses (1) and (2) of this subsection shall be computed by allowing interest at
the default rate. The worth at the time of the award of the amount referred to
in clause (3) of this Section shall be computed by discounting such amount at
the discount rate of the Federal Reserve Bank of San Francisco at the time of
award plus one percent 0%).
C. The rights and remedies provided by California Civil Code Section
1951.4, which allows Landlord to continue this Lease in effect and to enforce
all of its rights and remedies under this Lease, including the right to recover
rent and additional charges as they become due, for as Long as Landlord does not
terminate Tenant's right to possession; provided, however, if Landlord elects to
exercise its remedies described in this subsection and Landlord does not
terminate this Lease, and if Tenant requests Landlord's consent to an assignment
of this Lease or a sublease of the Demised Premises at such time as Tenant is in
default, Landlord shall not unreasonably withhold its consent to such assignment
or sublease.
D. To enforce, to the extent permitted by the Laws of the State of
California then in force and effect, any other rights or remedies set forth in
this Lease or otherwise applicable hereto by operation of Law or contract.
18.5 In the event of a breach or threatened breach by Tenant of any of the
terms, covenants, conditions, provisions or agreements of this Lease, Landlord
shall additionally have the right of any remedy available to Landlord, at law or
in equity injunction and Tenant agrees to pay the premium for any bond required
in connection with such injunction. Mention in this Lease of any particular
remedy shall not preclude Landlord from any other remedy, at law or in equity.
18.6 Tenant hereby expressly waives any and all rights of redemption
granted by or under any present or future Law in the event of Tenant's being
evicted or dispossessed for any cause, or in the event of Landlord's obtaining
possession of Demised Premises, by reason of the violation by Tenant of any of
the terms, covenants, conditions, provisions or agreements of this Lease, or
otherwise.
FEES AND EXPENSES
19.1 If Tenant shall default in the performance of any obligation on
Tenant's part to be performed under this Lease, Landlord may immediately, or at
any time thereafter, without notice, perform the same for the account of Tenant.
If Landlord at any time is compelled to pay or elects to pay any sum of money or
do any act which will require the payment of any sum of money including but not
Limited to employment of attorneys or incurring of costs), by reason of failure
of Tenant to comply with any term, covenant, condition, provision or agreement
hereof, or, if Landlord is compelled to incur or elects to incur any expense
(including but not Limited to reasonable attorneys' fees in instituting,
prosecuting or defending any action or proceeding, whether or not such action or
proceeding proceeds to judgment) by reason of any default of Tenant hereunder,
the sum or sums so paid or incurred by Landlord with interest at the Default
Rate shall be due from Tenant to Landlord promptly upon demand by Landlord.
NO REPRESENTATIONS BY LANDLORD
20.1 Neither Landlord nor Landlord's agents have made any representations
or promises with respect to the Park, Building or Demised Premises except as
herein expressly set forth. The taking of possession of Demised Premises by
Tenant shall be conclusive evidence, as against Tenant, that Tenant accepts the
same in its then "as is" condition and that Demised Premises, the Building and
the Park were in good and satisfactory condition at the time such possession was
so taken.
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END OF TERM
21.1 Upon the expiration or other termination of the Term, Tenant shall
quit and surrender to Landlord Demised Premises, broom clean, in as good order,
condition and repair as it now is or may hereafter be placed, ordinary wear
excepted. Tenant shall remove all property of Tenant, as directed by Landlord.
Any property left on Demised Premises at the expiration or other termination of
this Lease, or after the happenings of any of the events of default set forth in
Article 18, may, at the option of Landlord, either be deemed abandoned or be
placed in storage at a public warehouse in the name of and for the account of
and at the expense and risk of Tenant or otherwise disposed of by Landlord in
the manner provided by Law. Tenant expressly releases Landlord of and from any
and all claims and Liability for damage to or destruction or Loss of property
left by Tenant upon Demised Premises at the expiration of other termination of
this Lease and Tenant hereby indemnifies Landlord against any and all claims and
Liability with respect thereto. If Tenant holds over after the Term with the
consent of Landlord, express or implied, such tenancy shall be from month to
month only and shall not be a renewal hereof, and Tenant shall pay the rent and
all the other charges at the same rate as herein provided and also comply with
all of the terms, covenants, conditions, provisions and agreements of this Lease
for the time during which Tenant holds over. If Tenant holds over after the Term
without the consent of Landlord and shall fail to vacate Demised Premises after
the expiration or sooner termination of this Lease for any cause or after
Tenant's right to occupy same ceases, thereafter, and notwithstanding anything
to the contrary contained elsewhere in this Lease, Tenant shall be liable to
Landlord for the use and occupancy of Demised Premises in an amount agreed to be
one hundred twenty-five percent (125%) of the monthly installments of Base
Annual Rent, and all the other changes as provided in this Lease for the last
month of the Term. If Demised Premises are not surrendered at the end of the
Term, Tenant shall be additionally responsible to Landlord for all damage
(including but not limited to the loss of rent) which Landlord shall suffer by
reason thereof, and Tenant hereby indemnifies Landlord against all claims made
by any succeeding tenant against Landlord, resulting from delay by Landlord in
delivering possession of Demised Premises to such succeeding tenant. Tenant's
obligation to observe or perform all of the terms, covenants, conditions,
provisions and agreements of this Article shall survive the expiration or other
termination of this Lease.
QUIET POSSESSION
22.1 Landlord covenants and agrees with Tenant that upon Tenant's paying
Base Annual Rent and all other charges and observing and performing all of the
terms, covenants, conditions, provisions and agreements of this Lease on
Tenant's part to be observed or performed, Tenant shall have quiet possession of
the premises hereby demised for the Term subject, however, to the terms of this
Lease and of any ground Leases, underlying Leases, mortgages and deeds of trust
affecting all or any portion of the Building or any of the areas used in
connection with the operation of the Building.
LANDLORD'S WORK AND FAILURE TO GIVE POSSESSION
23.1 TENANT INSTALLATIONS PRIOR TO THE COMMENCEMENT DATE. Landlord will
perform the work and make the installations in the Demised Premises
substantially as set forth in the Work Letter attached hereto as Exhibit B (the
"Landlord's Work").
23.2 If Landlord shall be unable to give possession of Demised Premises on
the Commencement Date by reason of the fact that Demised Premises are Located in
a building being constructed and which has not been sufficiently completed to
make Demised Premises ready for occupancy or by reason of the fact that a
certificate of occupancy has not been procured or for any other reason, or if
the Building is not in course of construction and Landlord is unable to give
possession of Demised Premises on the date of the commencement of the Term
hereof by reason of the holding over of any tenant or tenants or for any other
reason, or if Landlord's Work is not completed, any such delay resulting
therefrom shall be deemed excused and Landlord shall not be subject to any
liability for the failure to give possession on said date. Under such
circumstances the rent reserved and covenanted to be paid herein shall not
commence until possession of Demised Premises is given or Demised Premises is
available for occupancy by Tenant, as fixed in a notice
16
given by Landlord to Tenant, unless such delay is the fault of Tenant. No
such failure to give possession on the date of the commencement of the term
shall in any wise affect or impair the validity of this Lease or the
obligations of Tenant hereunder, nor shall the same be construed in any way
to extend the Expiration Date. If permission is given to Tenant to enter into
the possession of Demised Premises or to occupy premises other than Demised
Premises prior to the date specified as the commencement of the Term, such
occupancy shall be deemed to be under all the terms, covenants, conditions,
provisions, and agreements of this Lease, including without Limitation Tenant
hereby agreeing to pay Base Annual Rent and other charges at the same rate as
though the term of this Lease and commenced. Notwithstanding the above, In
the event that Landlord is unable to give possession of the Demised Premises
as of sixty (60) days after the Commencement Date (subject to an additional
thirty (30) days for delays caused by force majeure) and said delay is not
caused by Tenant, then Tenant shall have the option to terminate this Lease
prior to taking possession of the Demised Premises.
TERMINATION, NO WAIVER, NO ORAL CHANGE
24.1 In the event that this Lease terminates for any reason (including
but not Limited to termination by Landlord) prior to its natural expiration
date, such termination wilt effect the termination of any and all agreements
for the extension of this Lease (whether expressed in an option, exercised or
not, or collateral document or otherwise); any right herein contained on the
part of Landlord to terminate this Lease shall continue during any extension
hereof; any option on the part of Tenant herein contained for an extension
hereof shall not be deemed to give Tenant any option for a further extension
beyond the first extended term. Interruption or curtailment of any services
shall not constitute a constructive or partial eviction or entitle Tenant to
any abatement of rent or any compensation (including but not Limited to
compensation for annoyance, inconvenience or injury to business). No act or
thing done by Landlord or Landlord's agents during the Term shall be deemed
an acceptance of a surrender of Demised Premises, and no agreement to accept
such surrender shall be valid unless in writing signed by Landlord. No
employee of Landlord or of Landlord's agents shall have any power to accept
the keys of said premises prior to the termination of this Lease. The failure
of Landlord to seek redress for violation of, or to insist upon the strict
performance of any term, covenant, condition, provision or agreement of this
Lease, or any of the Rules and Regulations attached to this Lease or
hereafter adopted by Landlord, shall not prevent a subsequent act, which
would have originally constituted a violation, from having all the force and
effect of an original violation. The receipt by Landlord of rent with
knowledge of the breach of any term, covenant, condition, provision or
agreement of this Lease, shall not be deemed a waiver of such breach. The
failure of Landlord to enforce any of the Rules and Regulations attached to
this Lease, or hereafter adopted, against Tenant or any other tenant in the
Building or in the park shall not be deemed a waiver of any such Rule and
Regulation. No provision of this Lease shall be deemed to have been waived by
Landlord, unless such waiver be in writing signed by Landlord. No payment by
Tenant or receipt by Landlord of a Lesser amount than the Monthly Installment
shall be deemed to be other than on account of the earliest stipulated rent,
nor shall any endorsement or statement on any check or any Letter
accompanying any check or payment as rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice
to Landlord's right to recover the balance of such rent or pursue any other
remedy in this Lease provided. This Lease contains the entire agreement
between the parties, and recites the entire consideration given and accepted
by the parties. Any agreement hereafter made shall be ineffective to change,
modify, waive or discharge it in whole or in part unless such agreement is in
writing and signed by the party against whom enforcement of the change,
modification, waiver or discharge is sought.
WAIVER OF TRIAL BY JURY
25.1 The respective parties hereto hereby waive trial by jury in any
action, proceeding or counterclaim brought by either of the parties hereto
against the other on any matter whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant, Tenant's
use or occupancy of Demised Premises, or any claim of injury or damage, or
the enforcement of any remedy under any statute, emergency or otherwise.
17
INABILITY TO PERFORM
26.1 This Lease and the obligation of the Tenant to pay rent hereunder
and to keep, observe and perform all of the other terms, covenants,
conditions, provisions and agreements of this Lease on the part of Tenant to
be kept, observed or performed shall in no wise be affected, impaired or
excused because landlord is unable to fulfill any of its obligations under
this Lease or to supply, or is delayed or curtailed in supplying any service
expressly or impliedly to be supplied or its unable to make, or is delayed or
curtailed in making, any repairs, alterations, decorations, additions or
improvements, or is unable to supply, or is delayed or curtailed in
supplying, any cause beyond Landlord's reasonable control, including, but not
limited to, acts of Go, strike or labor troubles, fuel or energy shortages,
governmental preemption or curtailment in connection with a national
emergency or in connection with any rule, order, guideline or regulation of
any department or governmental agency or by reason of the conditions of
supply and demand which have been or are affected by a war or other
emergency. Any such prevention, delay or curtailment shall be deemed excused
and Landlord shall not be subject to any liability resulting therefrom.
Notwithstanding the foregoing, in the event Landlord is unable to fulfill
obligations under this Lease, and Landlord's inability to perform prohibits
Tenant from reasonably conduct its business in the Demised Premises, then: 1)
If Landlord's inability to perform continues for a period exceeding ten (10)
business days, rent shall abate until Tenant can reasonably conduct its
business in the Demised Premises, and 2) If Landlord's inability to perform
continues for a period exceeding ninety (90) days, Tenant shall have the
option of terminating the Lease. Tenant waives and releases its right to
terminate this Lease under Section 1932(1) of the California Civil Code or
under any similar law or statue now or hereafter in effect.
26.2 Landlord shall not be deemed to be in default in the performance
of any obligation required to be performed by it hereunder unless and until
it has failed to perform such obligation within thirty (30)days after written
notice by Tenant to Landlord specifying the nature of Landlord's failure to
perform such obligation; provided, however, that if the nature of Landlord's
obligation is such that more than thirty (30) days are required for its
performance, then Landlord shall not be deemed to be in default if it shall
commence such performance within such thirty (30) day period and thereafter
shall prosecute the same to completion. ALL rights to cure provided to
Landlord under this Section 26.2 shall also be accorded to any mortgagee or
beneficiary under a deed of trust encumbering the Building or the Park.
Landlord shall not be Liable for any injury or damage to persons or property
resulting from Loss, theft, fire, explosion, falling plaster, cessation or
variation or shortage or interruption of services or utilities, steam, gas,
electricity, earthquake, acts of God, rain or water or dampness from any
source or any other cause whatsoever. Without Limiting the generality of the
foregoing, in no event shall Landlord business interruptions or other
consequential damages, except for damages arising from Landlord's gross
negligence or willful misconduct.
BILLS AND NOTICES
27.1 Except as otherwise in this Lease provided, a bill, statement,
consent, notice or communication which Landlord may desire or be required to
give to Tenant, shall be deemed sufficiently given or rendered if in writing,
delivered to Tenant personally or sent by registered or certified mail
addressed to Tenant at the Building or at the Last known residence address or
business address of Tenant or Left at Demised Premises addressed to Tenant,
and the time of the rendition of such bill or statement and of the giving of
such consent, notice or communication shall be deemed to be the time when the
same is delivered to Tenant, mailed, or Left at Demised Premises as herein
provided. Any notice, request, demand or communication by Tenant to Landlord
must be in writing and served by registered or certified mail (postage fully
prepaid), addressed to Landlord, at the address set forth in Article J of
Section 1, or at such other address as Landlord shall designate by notice
given as herein provided, and the time of the giving of such notice, request,
demand or communication shall be deemed to be the time when the same is
mailed as herein provided. If Tenant is notified of the identity and address
of Landlord's mortgagee or beneficiary under a deed of trust, or ground or
underlying Lessor, Tenant shall give such party notice of any default by
Landlord hereunder by registered or certified mail and such party shall have
a reasonable opportunity to cure such default before Tenant's exercising any
remedy available to it.
18
INCREASE OF TAXES AND OPERATING COSTS
28.1 If, in any Computation Year during the term of this Lease Taxes (as
hereinafter defined) and Operating Costs (as hereinafter defined) shall be
increased above the amount of Base Taxes and Operating Costs Amount specified
in Article K of Section I of this Lease, the Base Annual Rent shall be
increased by Tenant's Share specified in Article M of Section I of this Lease
of the amount of any such increase in Taxes and Operating Costs, subject to a
maximum increase in the sum of taxes plus Operating Cost of ten percent (10%)
in any Computation Year when compared with the immediately proceeding
Computation Year.
28.2 Definitions.
A. "Computation Year" shall mean each twelve (12) consecutive month
period commencing January 1 of each year during the Term, provided that
Landlord, upon notice to Tenant, may change the Computation Year from time
to time to any other twelve (12) consecutive month period and, in the event
of any such change, Tenant's share of Taxes and Operating Costs shall be
equitably adjusted for the Computation Years involved in any such change.
B. Tenant's Share has been computed by dividing the Rentable Area of
the Demised Premises by the total Rentable Area of the Building and, in the
event that either the Rentable Area of the Demised Premises or the total
Rentable Area of the Building is changed, Tenant's Share will be
appropriately adjusted by Landlord, which adjustment shall be conclusive
and binding on Tenant and, as to the Computation Year in which such change
occurs, for purposes of this Article 28, Tenant's Share shall be determined
on the basis of the number of days during such Computation Year at each
such percentage.
C. "Taxes" shall mean taxes and assessments upon or with respect to
the Building and the areas used in connection with the operation of the
Building imposed by Federal, State or Local governments or governmental
assessment districts, but shall not include income, franchise, capital
stock, estate, or inheritance taxes, but shall include gross receipts
taxes, special assessments and other business taxes. If, because of any
change in the method of taxation of real estate, any tax or assessment is
imposed upon Landlord or upon the owner of the Land and/or the Building
and/or the areas used in connection with the operation of the Building or
upon or with respect to the Park and/or the Building and/or the areas used
in connection with the operation of the Building or the rents or income
therefrom, in substitution for or in lieu of any tax or assessment which
would otherwise be a real estate tax or assessment subject matter, or with
respect to any subject matter which was during fiscal year 1998-90 the
subject of a real estate tax or assessment, such other tax or assessment
shall be deemed to be included in Taxes. Taxes shall also include legal
fees, costs and disbursements incurred in connection with proceedings to
contest or reduced Taxes. If any Taxes are specially assessed by reason of
the occupancy or activities of on or more tenants and not the occupancy or
activities of the tenants as a whole, such taxes shall be allocated by
Landlord to the Tenant or Tenants whose occupancy or activities brought
about such assessment. In case there shall be a reduction of the assessed
valuation for any tax year which affects the Taxes in any year or which a
rent adjustment shall have been made, the rent adjustment shall be
recalculated on the basis of the revised assessed valuation and Landlord
will credit against the rent next becoming due from Tenant such sums as
may be due to Tenant by reason of the recalculation, Less the expenses
incurred in effecting such reduction. In no event shall the amount of any
such credit be in excess of the amount of rent increase actually paid to
Landlord by Tenant for the period covered by such credit as a result of an
increase in Taxes.
D . "Operating Costs" shall mean the aggregate amount of (1) wage and
Labor costs applicable to the persons engaged in the management, operation,
maintenance, overhaul or repair of the Building and the Park and the areas
used in connection with the operation of the Building and the Park whether
they be employed by Landlord or by an independent contractor with whom
Landlord shall have contracted or may contract for such services; any
increase or decrease in the hours of employment or the number of paid
holidays or vacation days, social security taxes, unemployment insurance
taxes and the cost (if any) of providing disability, hospitalization,
medical, welfare, pension, retirement or other benefits applicable with
respect to such
19
employees, shall correspondingly affect the wage and Labor costs; and (2)
cost of utilities; fuel; building supplies and materials; service and
management contract; water and sewer charges; janitorial services;
security; Labor; parking expenses, utilities surcharges, or any other
costs Levied, assessed or imposed by, or at the direction of, or
resulting from statutes or regulations or interpretations thereof,
promulgated by any federal, state, regional, municipal or Local
government authority in connection with the use or occupancy of the
Building and the Park, or the parking facilities serving the Building;
costs incurred in the management of the Building; Building management
office rental; a management fee; air-conditioning; waste disposal;
heating; ventilating; elevator maintenance; supplies; materials;
equipment; tools; repair and maintenance of the structural portions of
the Building, including the plumbing, heating, ventilating,
air-conditioning and electrical systems installed or furnished by
Landlord; and maintenance, costs, and upkeep of all parking and common
areas, rental of personal property used in maintenance and management;
costs and expenses of gardening and landscaping; maintenance of signs;
personal property taxes Levied on or attributable to personal property
used in connection with the entire Building, including the Common Areas;
and costs and expenses of repairs, resurfacing, repairing, maintenance,
painting, Lighting, cleaning, refuse removal, security and similar items;
appropriate reserves; and the Common Area maintenance charge obligation
allocated to the Building and the Park including Tenant's allocable share
of Association Fees, if applicable in the future and assessments for the
maintenance of the Park and the Common areas, and for any increase in (i)
the rent payable under any ground Lease now or hereafter affecting the
real property of which Demised Premises forms a part or (ii) the interest
payable with respect to any permanent financing now or hereafter
affecting the Building which increase results not from a refinancing but
solely from a provision for such increase in the applicable loan
documents; and (iii) alterations to the Building or the Park or the areas
used in connection with the operation of the Building for Life-safety
systems or energy conservation or to effect economies in operations and
maintenance of the Building or the Park, or other capital improvements or
replacements (together with all costs, and interest thereon at a rate
equal to two percent (2%) over the annual prime rate of interest
announced publicly by Bank of America N.T.&S.A. at its San Francisco
Headquarters from time to time [but in no event in excess of the maximum
rate of interest permitted by Law,] incurred in connection with any such
alterations or other capital improvements or replacements) all amortized
over their useful Life except that any such costs (and the interest
thereon) incurred in connection with alterations or replacements for
energy conservation may be amortized at a yearly rate equal to the
savings realized during such period as a result of such alteration or
replacement, and (iv) the cost of fire, extended coverage, boiler,
sprinkler, disaster, public Liability, property damage, rent, earthquake
and other insurance and the deductible portion of any insured Loss
otherwise covered by such insurance, and (v) the cost of legal,
accounting, consulting fees and permits, certificates and Licenses
required in connection with the Building or the Park, and (vi) such other
items as are now or hereafter customarily included in the cost of
managing, operating, maintaining, overhauling and repairing the Building,
the Park and the areas used in connection with the operation of the
Building in accordance with now or hereafter accepted accounting or
management principles or practices.
28.3 STATEMENTS FOR TENANTS AND PAYMENTS. Tenant shall pay to Landlord
as additional charges one twelfth (1/12) of Tenant's Share of the increase in
Taxes and Operating Costs for each Computation Year, in advance, in an amount
estimated by Landlord and billed by Landlord to Tenant; provided that
Landlord shall have the right initially to determine monthly estimates and to
revise such estimate from time to time. With reasonable promptness after
Landlord has received the tax bills and other operating cost support for any
Computation Year, Landlord shall furnish Tenant with a statement (herein
called "Landlord's Statement") showing a comparison of the Base Taxes and
Operating Costs Amount to the amount of Taxes and Operating Costs for such
Computation Year, and Tenant's Share of the increase in Taxes and Operating
Costs. If the actual increase in Taxes and Operating Costs for such
Computation Year exceed the estimated Taxes and operating Costs paid by
Tenant for such Computation Year, Tenant shall pay to Landlord the difference
between the amount paid by Tenant and the actual increase in Taxes and
Operating Costs within fifteen (15) days after the receipt of Landlord's
Statement, and if the total amount paid by Tenant for any such Computation
Year shall exceed the actual increase in Taxes and Operating Costs for such
Computation Year, such excess shall be credited against the next installments
of Taxes and Operating Costs due from Tenant to Landlord hereunder.
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28.4 ADJUSTMENT FOR PARTIAL YEARS. If the Commencement Date shall occur
on a date other than the first day of a Computation Year, Tenant's Share of
Taxes and Operating Costs for the Computation Year in which the Commencement
Date occurs shall be in the proportion that the number of days from and
including the Commencement Date to and including the Last day of the
Computation Year in which bears to 365. Similarly, if the Expiration Date
shall occur on a date other than the Last day of a Computation Year, Tenant's
Share of Taxes and Operating Costs for the Computation Year in which the
Expiration Date occurs shall be in the proportion that the number of days
from and including the first day of the Computation Year in which the
Expiration Date occurs shall be in the proportion that the number of days
from and including the first day of the Computation Year in which the
Expiration Date occurs to and including the Expiration Date bears to 365.
Notwithstanding the forgoing, Landlord may, pending the determination of the
amount of Taxes and Operating Costs for such partial Computation year,
furnish Tenant with statements of estimated increases in Taxes and in
Operating Costs, and Tenant's Share of each thereof for such partial
Computation year. Within fifteen (15) days after receipt of such estimated
statement, Tenant shall remit to Landlord, as Additional Charges, the amount
of Tenant's Share of such Taxes and Operating Costs. After such Taxes and
Operating Costs have been finally determined and Landlord's Statement has
been furnished to Tenant pursuant to this Article, and if there shall have
been an underpayment of Tenant's Share of Taxes and Operating Costs, Tenant
shall remit the amount of such underpayment to Landlord shall remit the
amount of any such overpayment to Tenant within fifteen (15) days after the
issuance of such statements.
28.5 OCCUPANCY AND FRACTIONAL YEAR. For purposes of comparison to Base
Taxes and Operating Costs, there shall be added to the actual Taxes and
Operating Costs for any period during which the Building is less than 95%
occupied those additional expenses (of the type set forth in Paragraph B of
Subsection 28.2 of this Article) which Landlord determines it would have so
incurred had the building been 95% occupied during any such period.
Furthermore, for purposes of comparison to Base Taxes and Operating Costs, in
any comparative statement covering Less than a full Computation Year there
shall be added to the actual Taxes and Operating Costs for the period covered
by the comparative statement those additional expenses (of the type set forth
in this Article) which Landlord determines it would have so incurred had the
Building been 95% occupied during full Computation Year.
FOODS, BEVERAGES AND ODORS
29.1 Tenant shall not prepare any food nor do any cooking, conduct any
restaurant, Luncheonette or cafeteria for the sale or service of food or
beverages to its employees or to others, or cause or permit any odors of
cooking or other processes, or any unusual or objectionable odors to emanate
from Demised Premises. Tenant shall not install or permit the installation or
use of any vending machine or permit the delivery of any food or beverage to
Demised Premises except by such persons and in such manner as are approved in
advance in writing by Landlord.
SECURITY
30.1 Tenant has deposited with Landlord the sum specified in Article N
of Section 1 as security for the faithful performance and observance by
Tenant of all of the terms, covenants, conditions, provisions and agreements
of this Lease. Tenant shall not be entitled to interest on such security
deposit and Landlord shall not be obligated to hold such deposit as a
separate fund, but may commingle it with other funds. In the event Tenant
defaults in respect of any of the terms, covenants, conditions, provisions or
agreements of this Lease, including but not Limited to, the payment of rent
or other sums due hereunder, Landlord may use, apply or retain the whole or
any part of the security so deposited to the extent required for the payment
of any rent or another sums as to which Tenant is in default or for any sum
which Landlord may expend or may be required to expend by reason of Tenant's
default in respect of any of the terms, covenants, conditions, provisions or
agreements of this Lease, including, but not Limited to, any damages or
deficiency in the reletting of Demised Premises, whether such damages or
deficiency accrued before or after summary proceedings or other re-entry by
Landlord, Tenant, on demand by Landlord, will forthwith replenish the
security or any portion thereof so used or applied by Landlord. In the event
that Tenant shall fully and faithfully comply with all of the terms,
covenants, conditions, provisions and agreements of this Leases, the
security, without interest, shall be returned to Tenant within thirty
(30) days promptly after the date fixed as the end of this Lease but only
after delivery of entire possession of Demised Premises to Landlord. In the
event of a sate of the Land and/or Building or Leasing of the land
21
and/or the entire Building, or the sale of such leasehold, Landlord shall
have the right in accordance with California Civil Code Section 1950.7 1) to
return the security to Lessee, or 2) to transfer the security to the
transferee or Lessee and Landlord shall thereupon be released by Tenant from
all Liability for the return of such security; and in the event of such
transfer of security Tenant shall Look to the new Landlord solely for the
return of said security; and the provisions hereof shall apply to every
transfer or assignment made of the security to a new Landlord. Tenant shall
not assign or encumber or attempt to assign or encumber the security
deposited herein and neither Landlord nor it s successors or assigns shall be
bound by any such agreement, encumbrance nor by any purported transfer
thereof by operation of Law. In the event of the termination of any ground
Lease or foreclosure of any fee or leasehold mortgage or deed of trust (of
conveyance in lieu thereof) now or hereafter affecting the real property of
which Demised Premises forms a part, Tenant shall Look to the new Landlord
for the return of said security only if said security is actually transferred
to said new Landlord.
CARE OF FLOOR AND WINDOW COVERINGS
31.1 Supplementing Articles 5 and 21, Tenant shall take good care of
any and all floor and window coverings installed at any time in any portion
of Demised Premises, and Tenant shall make, as and when needed, all repairs
in and to the said coverings and shampoo and/or clean any of said coverings
as necessary (if in excess of normal janitorial maintenance) to preserve them
in good order, condition and appearance by persons approved by the Landlord.
Upon the expiration or other termination of the Term of this Lease, Tenant
shall surrender the said coverings to Landlord in as good order, condition
and repair as they were upon the installation thereof, ordinary wear
excepted. Supplementing Article 12, Landlord shall vacuum any carpets
periodically.
MARGINAL NOTES
32.1 The marginal notes and headings are inserted only as a matter of
convenience and for reference and in no way define, Limit or describe the
scope or intent of this Lease nor do they in any way affect this Lease.
DEFINITIONS
33.1 The term "office," or "OFFICES," wherever used in this Lease, shall
not be construed to mean premises used as a store or stores, for the sate,
display or storage at any time, of goods, wares or merchandise of any kind,
or as a shop, or for manufacturing or for any purpose contrary to Rule and
Regulation No. 14. The term "Landlord" as used in this Lease means only the
owner or the mortgagee in possession or grantee in possession under a deed of
trust, or the owner of the Lease of the Building for the time being, so that
in the event of any sate or sales of said Land and/or Building or of said
Lease, or in the event of a Lease of said Land and/or Building, the same
Landlord shall be and hereby is entirety freed and relieved of all covenants
and obligations of Landlord hereunder, and it shall be deemed and construed
without further agreement between the parties or their successors-in-interest
or between the parties and the purchaser or the lessee of the Building has
assumed and agreed to carry out any and all covenants and obligations of
Landlord hereunder. The words "re-enter" and "re-entry" as used in this
Lease are not restricted to their technical legal meanings.
LANDLORD'S APPROVAL
34.1 The review, approval, inspection or examination by Landlord of any
item to be reviewed, approved, inspected or examined by Landlord under the
terms of this Lease or the Exhibits attached hereto shall not constitute the
assumption of any responsibility by Landlord for either the accuracy or
sufficiency or any such item or the quality or suitability of such item for
its intended use. Any such review, approval, inspection or examination by
Landlord is for the sole purpose of protecting Landlord's interests in the
Building and the Park and under this Lease, and no third parties, including,
without limitation Tenant or any person or entity claiming through or under
Tenant, or the contractors, agents, servants, employees, visitors or
licensees of Tenant or any such person or entity, shall have any rights
hereunder.
22
BROKERAGE
35.1 Tenant represents and warrants that the broker or brokers
specified in Article 0 of Section 1 was (were) the sole broker or brokers who
negotiated and brought about the consummation of this Lease, and that no
discussions or negotiations were had with any other broker concerning the
Leasing of the Demised Premises. Based on the foregoing representation and
warranty, Landlord has agreed to pay any and all commission or compensation
due to said broker or brokers in connection with the consummation of this
Lease. Tenant agreed to indemnify and defend Landlord against and hold
Landlord harmless from any claims of brokerage commissions arising out of any
discussions or negotiations allegedly had by Tenant with any other broker.
BINDING EFFECT
36.1 All of the terms, conditions, provisions and agreements of this
Lease shall be deemed to be covenants. The covenants contained in this Lease
shall bind and inure to the benefit of Landlord and Tenant and their
respective Legal representatives and successors, and, except as otherwise
provided in this Lease, their assigns.
MISCELLANEOUS
37.1 This Lease is offered to Tenant for signature by Tenant and this
Lease shall not be binding upon Landlord unless and until such time as
Landlord shall have executed and delivered the same.
37.2 Tenant shall not at any time prior to or during the term hereof,
either directly or indirectly, use any contractors, Labor or materials whose
use would create any difficulty with other contractors or labor engaged by
Tenant or by Landlord or by others in the construction, main tenancy or
operation of Demised Premises or the Building or the Park.
37.3 If a partnership or more than one Legal person is at any time
Tenant, 0) each partner and each legal person 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 or
performed by Tenant, and 00 by term "Tenant" as used in this Lease shall mean
and include each of them jointly and severally and the act of or notice from,
or notice or refund to, or the signature of, any one or more of them, with
respect to 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.
37.4 In addition to the Base Annual Rent and other charges to be paid
by Tenant hereunder, Tenant shall reimburse Landlord, upon demand, for any
and all taxes payable by Landlord (other than net income taxes) whether or
not now customary or within the contemplation of the parties hereto: M upon,
allocable to, or measured by the rent payable hereunder, including without
Limitation, any gross receipts tax or excise tax Levied by any governmental
or taxing body with respect to the receipt of such rent; or (ii) upon or with
respect to the possession, Leasing, operation, management, maintenance,
alteration, repair, use or occupancy by Tenant of Demised Premises or any
portion thereof; or (iii) upon the measured value of Tenant's personal
property located in Demised Premises or in any storeroom, garage or any other
place in Demised Premises or the Building or the Park, of the areas used in
connection with the operation of the Building, it being the intention of the
Landlord and Tenant that, to the extent possible, such personal property
taxes shall be billed to and paid directly by Tenant; or (iv) upon this
transaction, Taxes paid by Tenant pursuant to this Subsection 37.4 shall not
be included in any computation pursuant to Article 28.
37.5 This Lease shall be governed by and construed in accordance with
California Law
37.6 In the event any term, covenant, condition, provision or agreement
herein contained is held to be invalid or void by any court of competent
jurisdiction, the invalidity of any such term, covenant, condition, provision
or agreement shall in no way affect any other term, covenant, condition,
provision or agreement herein contained.
23
37.7 Landlord shall not be obligated to provide or maintain any
security patrol or security system. However, if Landlord elects to provide
such patrol or system, the cost thereof shall be included in Operating Costs
as defined in Article 28. Landlord shall not be responsible for the quality
of any such patrol or system which may be provided hereunder or for damage or
injury to Tenant, its employees, invitees or others due to the failure,
action or inaction of such patrol or system, except for damage or injury
arising out of Landlord's gross negligence or willful misconduct.
37.8 Any basement storage space or other storage space at any time
demised to Tenant hereunder shall be used exclusively for storage.
Notwithstanding any other provision of this Lease to the contrary, (i) only
such ventilation and heating will be furnished by Landlord as will, in
Landlord's judgement, be adequate for use of said space for storage, (ii) no
cleaning, water or air conditioning will be furnished therefor, and (iii)
only such electricity will be furnished thereto as will, in Landlord's
judgement, be adequate to Light said space as storage space.
37.9 Time is of the essence with respect to the performance of each and
every provision of this Lease to be performed by Tenant.
37.10 Neither this Lease, nor any notice or memorandum regarding the
terms hereof, shall be recorded by Tenant. Any such unauthorized recording
shall give Landlord the right to declare a breach of this Lease and pursue
the remedies provided herein. Tenant agrees to execute and acknowledge, at
the request of Landlord a short form of this Lease in recordable form.
37.11 If the name of Tenant or any successor or assign shall be changed
during the term of this Lease, such party shall promptly notify Landlord
thereof, which notice shall be accompanied by a certified copy of the
document effecting such change of name.
37.12 Tenant shall at any time and from time to time upon not less than
ten (10) days' prior notice from Landlord execute, acknowledge and deliver to
Landlord a statement in writing certifying to those facts for which
certification has been requested by Landlord or any current or prospective
purchaser, mortgagee (or beneficiary under a deed of trust) or underlying
Lessor, including without limitation (i) that this Lease is unmodified and in
full force and effect (or, if modified, adequately identifying such
modification and certifying that this Lease, as so modified, is in full force
and effect) and (ii) the dates to which the Base Annual Rent, additional
payments and other charges are paid and (M) whether or not there is any
default by Landlord or Tenant in the performance of any term, covenant,
condition, provision or agreement contained in this Lease and further whether
or not there are any setoffs, defenses or counterclaims against enforcement
of the obligations to be performed under this Lease and, if there are,
specifying each such default, setoff, defense or counterclaim. Any such
statement may be conclusively relied upon on by any prospective purchaser or
Lessee or encumbrancer of Demised Premises or of all or any portion of the
Building or the Park. Tenant's failure to deliver such statement within such
time shall be deemed a statement that this Lease is in full force and effect,
without modification except as may be represented by Landlord, that there are
no uncured defaults in Landlord's performance, and that not more than one
month's Base Annual Rent has been paid in advance.
37.13 If, at any time during the Term of this Lease, the holder of
Landlord's interest hereunder is a partnership or joint venture, Tenant
agrees to Look only to the assets of such partnership or joint venture and
not to the partners of joint ventures personally with respect to any
obligation or payments due or which may become due from Landlord hereunder. A
deficit in the capital account of any partner or joint venture shall not be
considered an asset of such partnership or joint venture.
37.14 The rights of Tenant hereunder in and to the Common Area shall at
all times be subject to the rights of the Landlord and other tenants of
Landlord who use the same in common with Tenant, and it shall be the duty of
Tenant to keep all of the Common Areas free and clear of any obstructions
created or permitted by Tenant or resulting from Tenant's operation and to
permit the use of any of the Common Areas only for normal parking and ingress
and
24
egress by the invitees of Tenant and from the Building. If, in the opinion of
Landlord, unauthorized persons are using the Common Areas by reason of the
presence of Tenant in Demised Premises, Tenant, upon demand of Landlord,
shall correct such situation by appropriate action or proceedings against all
such unauthorized persons. Nothing herein shall affect the right of Landlord
at any time to remove any such unauthorized persons from said areas or to
prevent the use of any of said areas by unauthorized persons.
37.15 If, as a result of any governmental rule or regulation, Landlord
imposes a curtailment of services or equipment in the Park, Demised Premises
or the Building, Tenant shall comply therewith and shall be Liable to
Landlord for any surcharge imposed for any violation by Tenant.
37.16 If Tenant is at any time in default in the payment of any sum of
money pursuant to the terms, covenants, conditions, provisions or agreements
of this Lease or pursuant to any order now or hereafter placed by Tenant with
Landlord (including without Limitation charges for any materials or services
or construction work furnished to Tenant by Landlord) with respect to Demised
Premises over and above or in addition to or in lieu of the Base Annual Rent
(or any installment thereof), Landlord shall have all the remedies as in the
case of default by Tenant in the payment of an installment of the Base Annual
Rent.
37.17 If Tenant signs as a corporation or a partnership, each of the
persons executing this Lease on behalf of Tenant does hereby covenant and
warrant that Tenant is a duty authorized and existing entity, that Tenant has
and is qualified to do business in California, that Tenant has full right and
authority to enter into this Lease, and that each and every person signing on
behalf of Tenant is authorized to do so. Upon Landlord's request, Tenant
shall provide Landlord with evidence satisfactory to Landlord confirming the
foregoing covenants and warranties.
37.18 In the event that either Landlord or Tenant fails to perform any
of its obligations under this Lease or in the event a dispute arises
concerning the meaning or interpretation of any provision of this Lease, the
basis of the dispute shall be settled by judicial proceedings and the
defaulting party or the party not prevailing in such dispute, as the case may
be, shall pay any and all costs and expenses incurred by the other party in
enforcing or establishing its rights hereunder, including without Limitation,
court costs and attorneys' fees.
Any rider or exhibit annexed hereto is made a part hereof.
IN WITNESS WHEREOF, Landlord and Tenant have respectively executed this
Lease as of the day and year first above written.
LANDLORD: Newport Place Associates,
a California Limited Partnership
By: MIC Newport Place,
a California Limited Partnership
Its: General Partner
By: /s/ David W. Miller
----------------------------------------
David W. Miller, general partner
TENANT: HomeLife Realty Services, Inc.,
A Delaware Corporation
By: /s/ John Corner
----------------------------------------
John Corner
Its: Executive Vice President/General Manager
25
EXHIBIT A
GENERAL NOTES;
1 ALL FURNITURE ON PLAN BY TENANT U.N.O.
2. CEILING GRID AND TILE TO BE BUILDING STANDARD.
3. PAINT TO BE BUILDING. STANDARD THROUGHOUT, EXCEPT ROOM 710.
4, BUILDING STANDARD CARPET AND STRAIGHT BASE THROUGHOUT, EXCEPT ROOM 702.
NOTES AND LEGEND
PROVIDE OPENING FOR NEW BUILDING STANDARD SUITE ENTRY DOOR/FRAME ASSEMBLY.
INCANDESCENT WALL WASHERS (ALLOWANCE OF 9).
BUILDING STANDARD FULL HEIGHT 18" WIDE SIDELIGHT,
PROVIDE BUILDING STANDARD PLASTIC LAMINATE COUNTER (5'-0') WITH DRAWERS, SINK,
AND DISPOSAL.
PROVIDE BUILDING STANDARD PLASTIC LAMINATE UPPERS (8'-0-) WITH ADJUSTABLE
SHELVES.
PROVIDE BUILDING STANDARD PLASTIC LAMINATE COUNTER (APPROX. 8'-0-) ASSEMBLY AT
Y-O"A.F.F. ROVIDE (2) GROMMETS
PROVIDE METAL BACKING WITHIN WALL CAVITY. (ROOM 702 SIDE) FOR EXTRA SUPPORT FOR
COUNTER.
PROVIDE BUILDING STANDARD INTERIOR DOOR/FRAME ASSEMBLY.
POLYOLEFIN WALLCOVERING ON ALL WALLS. ROOM 710.
BUILDING STANDARD VINYL COMPOSITION TILE WITH COVE BASE. ROOM 702.
LEGEND
EXISTING PARTITION TO RENWN
NEW PARTITION
I-HOUR RATED DEMISING PARTITION
DUPLEX OUTLET I
DUPLEX OUTLET - SEPARATE CIRCUT
TELEPHONE OUTLET
EXHIBIT B
WORK LETTER AND CONSTRUCTION AGREEMENT
This agreement supplements the Lease dated April 12, 1990, executed
concurrently herewith by Newport Place Associates as Landlord and HomeLife
Realty Services, Inc. as Tenant.
1 . Tenant shall devote such time as may be necessary to enable Landlord
to complete and obtain Tenant's written approval, and approval by appropriate
government authorities by May 14, 1990 of the final Layout and plans for
Tenant's premises, using Landlord's Standard Installation, including, among
other things, the Location of standard partitions, doors, Light fixtures,
electrical outlets, telephone outlets and other standard installations
required by Tenant, as well as wall finishes and floor coverings.
Construction drawings, satisfactory to Landlord, for special installation
shall be furnished by Tenant, who shall be responsible for the design,
function and maintenance of such special improvements.
2. Landlord's Standard Installations, not to exceed the following,
shall be supplied and installed in Tenant's premises, other than storage
space, at Landlord's expense. For the purposes of this section, the square
footage is agreed to be 2,287 square feet. Landlord shall construct, at its
cost, the following Building Standard items of work. The modifications to
said items shall be at Tenant's cost. Said improvements shall generally be in
accordance with the following specifications as to quality and materials:
COMMON CORRIDOR
A. CORRIDOR PARTITION (STAB TO STAB)
1. 3-5/8" 25-gauge metal studs, 24" on center, with seismic bracing as
required.
2. 5/8" Type "X" drywall, one (1) Layer each side of studs.
3. Partition taped smooth and sanded from floor to ceiling to receive
paint or wall covering.
4. All straight-line terminations to existing building surfaces.
B. CORRIDOR CEILING (DRYWALL LID)
1. Corridor finish ceiling to be 6'-0", wide non-rated drywall Lid
with single Layer 5/8", Type "X" drywall. Taped smooth to receive paint.
Seismic bracing as required.
2. 2-1/2", 25-gauge metal studs, 24" on center, with seismic bracing as
required.
3. Framing for recessed Light fixtures and HVAC penetrations is
included.
4. Ceiling height 9'-0" above concrete floor.
5. paint "Ameritone", 190H (NIC).
C. ALTERNATE CORRIDOR CEILING
1. Corridor finish ceiling to be 6'0", wide drywall Lid of
horizontal shaft assembly approximately 2-1/2" thick, 1" shaft wall Liner
inserted in minimum 25-gauge C-H studs, 24" on center with single Layer
5/8" Type "X" drywall. Taped smooth to receive paint. Seismic bracing as
required.
D. CORRIDOR LIGHT FIXTURE
1. 2' x 2' (finish drywall) housing type.
2. Warm white fluorescent U-tubes, two (2) each, #F40/WW/U/3/WM, as
manufactured by G.E
3. Lithonia 9 Cell, 3" Deep 277V, energy saving ballasts.
4. Earthquake clips and wire.
5. No supply or return air capability.
1
E. EXIT SIGNS (SELF ILLUMINATED)
1 . Isolite - black faced with green Letters.
F. CARPET AND BASE
To be determined.
G. WALLCOVERING
1. "Maharam" vertical surfaces, TEK wall.
2. Color #01 Misty.
H. FIRE SPRINKLERS
1. Drop heads from existing distribution.
2. Adjustable heads, centered in corridor.
3. Concealed heads with flush sensor place, custom color, Phantom Model
PH-1 decorative sprinkler by Star Sprinkler Corporation. Custom color to match
Ameritone 190 H on sensor plate.
TENANT AREA
DEMISING PARTITION
1. 2-1/2" 25-gauge metal studs, 24" on center, with seismic bracing as
required.
2. 5/8" Type "X" drywall, one (1) layer each side of studs.
3. Height from floor stab to under side of ceiling grid.
4. Partition taped smooth from floor to ceiling and sanded to
receive paint or wallcovering.
5. Partition cavity insulation Owens Corning "Noise Barrier" 2-1/2"
R-11 batts. Ceiling insulation to occur 4'-0" each side of partition
and to be Owens Corning "Sono Batts" F.S. 25 foil face (up), 3-1/2"
R-11.
6. Stagger and caulk around electrical outlet and other boxes, caulk
around conduit and other through-the-wall penetrations.
7. Straight tine termination at building column only. Sound seated
gasket closure at mullion termination. No screwing into mullions allowed.
8. Secure bottom channel with 1/4", shot pins at 4'-0" on center and 6"
from corner.
9. Lateral bracing, 25-gauge ASTM C 645 material, to be attached to the
partition with #8 sheet metal screws at 8'-0" on center. The brace is to be
placed at an angle of 45 degrees to the horizontal plane ceiling.
B. WAINSCOAT
1. Remove existing drywall as required for electrical work. Reinstall
and tape smooth from floor to windowsill. If no electrical work is
required, tape smooth from floor to window silt.
C. INTERIOR PARTITION
1. 2-1/2" 25-gauge metal studs, 24" on center, with seismic bracing unless
otherwise noted.
2. 5/8" Type "X" drywall, one (1) Layer each side of studs.
3. Height from floor stab to ceiling grid 9'-0".
4. Partition taped smooth and sanded to receive paint or
wallcovering.
5. "L" metal at termination of partition at ceiling.
6. Straight-line termination at building columns. Sound seated
gasket closure at mullion termination.
2
D. AREA DEMISING PARTITION (100 OCCUPANTS/10,000 SF)
1. 3-5/8", 25-gauge metal studs, 24", on center, from floor to
structure above, with seismic bracing as required.
2. 5/8" Type "X" drywall, one (1) Layer each side of studs (slab to
stab).
3. Partition taped smooth and sanded from floor to ceiling to receive
paint or wallcovering. Fire tape from ceiling to stab above.
4. Straight Line termination at building columns and existing watts.
Sound seated gasket closure at mullion termination (Detail 36). No
screwing into mullions allowed.
E. CORRIDOR
1. All doors shall be 3'-0'' x 9'-0" plain slice Honduras mahogany
x 1-3/4". Doors to be solid core flush premium grade with matching hardwood
edges, prefinish to match building standard sample. 20-minute fire-rated with
rating Label attached to hinge side of door (balance match pairs as occurs).
2. 3' -0" x 9' -0" x 3-3/4" throat. Aluminum doorframe by "Advanced
Architectural Frames" 20-minute fire-rated with attached to hinge side
of frame, painted finish. Color to be black.
"Schlage #69453-03A mortise Lockset, same finish both sides, US32
polished stainless steel 4011 A.F.F. to center Line of Lever.
4-1/2", x 4-1/2", Ball Bearing hinges BO-1279 ("Stanley", "Soss", and
"McKinney" are acceptable alternates). Butt hinges, two (2)
pair. Finish to match Lever.
5. "Norton #8501 (or approved equal) parallel arm door closer. Finish to
be aluminum. "Quality" #331 floor stop for doors without thresholds. Finish
to match Lever.
F. INTERIOR DOOR
1. 3'-0", x 9'-0", x 1-3/4" solid core flush premium grade plain slice
Honduras mahogany with matching hardwood edges, prefinished to match
building standard sample.
2. 3'-0" x 9'-0" x 3-3/4" factory painted aluminum frame by "Advanced
Architectural Frames", painted finish. Color to be black.
3. "Schlage" #L9010-03A Latchset as specified, same finish both sides,
US 32 polished stainless steel, 4011 A.F.F. to center tine of Lever (see
Detail 8).
4. 4-1/2" x 4-1/2", butt hinges, 2 pair. Same finish as Lever.
5. Quality #331 floor stop - same finish as Lever.
G. LIGHT FIXTURES
1. 2' x 4' Ultraline (slot grid) housing-type throughout Tenant premises.
2. Warm white fluorescent tubes, three (3) Lamps, as manufactured by G.E.,
#F4/WW/RSWM, 34-watt.
3. Lithonia "Paralux" 2PM3GB340-18-d-2T7-ES, 18-cell, 3", deep cell,
return air slots, 277V, energy-saving batlasts.
4. Earthquake clips and wire.
Acoustic Ceiling
1. "Chicago Metallic" Ultraline intermediate duty, 1/8" reveal in steel
grid with white reveal, throughout Tenant premises.
2. Partition attachment clips.
3. Tile, "Celotex" Cashmere 2' x 2' x 3/4" Cirrus edge. Must specify 40-4
STC.
4. Ceiling height 9'-0" above concrete slab, Floors 2 through 9.
I. FIRE SPRINKLERS
3
1. Drops and heads from existing distribution.
2. Adjustable heads.
3. Semi-recessed heads, Model "H" 1/2" orifice with white enamel trim, by
Central
4. Sprinkler corporation. Locate in center of ceiling tile.
J. PAINT
1. Minimum two (2) coats of flat Latex paint to cover.
2. Building standard color.
K. CARPET
1. "MacArthur" Design Weave Tempest 11 3202 Zeftron Nylon, 1/10 gauge, cut
pi Le over 3/8", Barony pad.
L. BASE
1. 2-1/2", rubber straight base, color varies with carpet selection.
M. WINDOW COVERINGS
1. Mini-blinds, "Levelor", color "Misty" #818.
2. Sized to fit within each pane of glass within mullion.
3 . To be installed per manufacturer's recommendations.
N. ELECTRICAL WALL OUTLET
1. Leviton #16342-I, self-grounding or equal, duplex receptacle.
2. Color to be Ivory.
3. 11OV, 20-amp, non-dedicated wall mount, standard.
4. Mounted vertically 1211 A.F.F. to center of outlet.
5. Quadriplex 4S junction box with duplex outlet converter plate at
secretariat and office Locations.
O. TITLE 24 SWITCH
1. Leviton Decora #5601, double switched where applicable, color Ivory.
2. Switches paired in double gang box to meet Title 24 requirements.
3. Height 4011 A.F.F. to center Line of switch (Detail 8).
P. LIGHT CONTROL SYSTEM AT LANDLORDS DISCRETION
1. Light control sensor 277-volt
Light-o-Matic
a. Wall mounted at offices.
b. Ceiling mounted at open areas.
2. Teflon wire, control relay, and transformer.
3. All lighting may, at Landlord's option, be controlled through the
building's central energy management system.
Q. TELEPHONE WATT OUTLET
1. Single gang box in wall vertically mounted.
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2. 3/4" metal conduit from outlet box stub-up conduit and putt wire to
7-1/2" above ceiling. Plenum rated cable or conduit to telephone
backboard by Tenant.
3. Cover plate by telephone company, match other plates (ivory).
4. Outlet height at 12" A.F.F. to center Line of outlet (Detail 8).
R . HVAC
1. 2' x 2' Supply air registers, perforated face diffuser.
2. 2' x 2' return air grilles, perforated face diffuser.
3. Thermostats Located per zone requirements. 60" A.F.F. to center
Line. Center above light switches where appropriate.
4. The HVAC distribution and energy management system as typically
designed by Landlord's engineer to meet normal HVAC requirements
will be Tenant allowance. All Tenant requests or requirements
adding additional zones, 24-hour conditioning, exhaust fans,
etc., will be Tenant over-standard work.
3. Tenant's Premises
A. Tenant may require work different from or in addition to Landlord's
Standard Installations. In such event, any architectural, mechanical,
electrical and structural engineering drawings, plans and specifications
required shall be prepared by Landlord's architect, space designer or
engineer at Tenant's expense and shall subject to the approval of Landlord.
If Tenant selects interior finish items such as wall paint, covering,
fixtures and carpeting other than Landlord's Standard Installations, Tenant
shall notify Landlord of all such selections in writing. All interior
decorating items and services selected by Tenant in excess of Landlord's
Standard Installations, shall be provided by Tenant at Tenant's sole cost and
expense. Whether, and the extent to which, any of Tenant's requirements
constitute non-building standard work or otherwise exceed Landlord's Standard
Installations, shall be determined by Landlord's architect, space designer,
or engineer, which determination shall be conclusive.
B. Promptly upon completion of such plans (including revisions),
Landlord shall notify Tenant in writing of the costs to Tenant for quantities
in excess of Landlord's Standard Installations, as described in Paragraph 2
above. Tenant shall sign the working drawings within the time set forth in
Paragraph I above, give Landlord authorization to complete the Premises in
accordance with such Layout and plans, and shall accompany said authorization
with a check made out to Landlord in the amount of Tenant's cost for the
authorized excess of Landlord's standards. Tenant may, in such authorization,
delete any or all of such items of extra cost. If such written authorization
and check are not received by Landlord, Landlord shall not be obligated to
commence work on Tenant's Premises, and Tenant shall be chargeable with any
delay in the completion of the Premises resulting therefrom.
C. If the completion of Landlord's work in Tenant's Premises is delayed
by Tenant's failure to comply with the foregoing provisions, or by Tenant's
requirement of materials or installations different from Landlord's Standard
Installations, or by changes in the work ordered by Tenant or by extra work
ordered by Tenant, or because Tenant chooses to have additional work
performed by Landlord, then the rent shall commence to accrue on the
Commencement Date as specified in Article G of Section 1 of said Lease. Under
no circumstances shall Landlord be chargeable with any delay because of
non-building standard work.
D. Landlord shall be required to complete Landlord's Standard
Installations in the Premises for Tenant at the expiration of six (6) weeks
after the delivery to Landlord of Tenant's signed working drawings and
receipt of approval of said drawings by the appropriate government
authorities. If such signed and approved working drawings are not received by
the Landlord at Least six (6) weeks prior to the Commencement Date specified
in Article G of section 1 of said Lease, then the rent shall commence to
accrue on said Commencement Date.
E. If Tenant shall request any change, addition or alteration in
approved working drawings, Landlord shall promptly give Tenant a written
estimate of the cost of engineering and design services to prepare working
drawings in
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accordance with such request and the time delay expected because of such
request. if Tenant, in writing, approves such written estimate, Landlord
shall have working drawings prepared and Tenant shall promptly reimburse
Landlord for the cost thereof. Promptly upon the completion of such working
drawings, Landlord shall notify Tenant in writing of the cost, which will be
chargeable to Tenant by reason of such change, addition or deletion. Tenant
shall, within three (3) business days, notify Landlord in writing whether it
desires to proceed with such change, addition or deletion, and in the absence
of such written authorization. Tenant shall be chargeable with any delay in
the completion of the Premises resulting therefrom and rent shall commence to
accrue as set forth in Paragraph 2 above.
F. In the event Tenant requests that any portion of the work to be
performed by Landlord be delayed, Tenant shall pay all costs and any expenses
occasioned by such delay including, without limitation, any costs and
expenses attributable to increases in Labor or materials.
G. If plans and specifications for Tenant's Premises construction shall
require Landlord's Standard Installation(s) in quantities greater than
provided in this Construction Agreement, reasonable substitution may be made
of any standard item(s) listed, with any other standard items(s) so Listed,
provided that it is specifically understood and agreed that if such
substitution shall result in a total cost exceeding Landlord's budget for
improvements of Tenant's Premises, Tenant shall pay to Landlord the amount of
such additional cost as provided in Paragraph 3B above.
H. It is specifically acknowledged that portions of the Building and
common areas may not be completed on or prior to the Commencement Date,
without Liability of Landlord to Tenant, and without any abatement or
reduction in rent.
I. Without Limiting the generality of Articles 4 and 23 of the Lease,
any and all Tenant improvements shall at once become and remain the property
of Landlord.
J. If Tenant requests to perform any alterations, additions or
improvements (the "Work") and Landlord consents to such requests, the
following terms and conditions shall apply to all such Work:
(1) All costs and expenses in connection with or arising out of the
performance of the Work shall be borne by Tenant and all payments therefore
shall be made by Tenant promptly as they become due. At no time shall Tenant
do or permit anything to be done whereby the Building or the land upon which
it is located may be subjected to any mechanic's or other Liens or
encumbrances arising out of the Work. Tenant shall notify Landlord in writing
not Less than ten (10) days prior to the commencement of any Work in order to
afford Landlord an opportunity to post and record appropriate notices of
non-responsibility with reference to the Work. Prior to the commencement of
any Work, and from time to time whenever requested by Landlord, Tenant will
deliver to Landlord waivers of mechanic's Liens duty executed by all
contractors and all Laborers or material persons concerned with said Work. At
any time so requested by Landlord, Tenant will, at Tenant's expense, and as
Landlord requires, provide and furnish to Landlord either (a) surety company
bond(s), or (b) court order(s) discharging Lien, or (c) such other form of
protection satisfactory to Landlord against any Liens or encumbrances which
may be filed.
(2) All materials and processes used in the performance of the Work
shall conform to the standards and Rules and Regulations of the Building and
Tenant hereby assures Landlord that each of Tenant's contractors is or will
be entirely familiar with such requirements prior to commencement of any
Work. No Work shall proceed without the submission of detailed plans and
specifications for such requirements prior to commencement of any work. No
Work shall proceed without the submission of detailed plans and
specifications for such Work for approval by Landlord. Once Tenant has
commenced the Work, Tenant will promptly, diligently and continuously pursue
the same to successful completion in full compliance with the approved plans
and specifications.
(3) Tenant will perform all Work in a safe and Lawful manner using only
contractors approved by Landlord. Tenant shall at its sole expense comply with
all applicable Laws and all regulations and requirements of municipal or other
governmental bodies exercising authority over the building or the work and this
compliance shall include the filing of plans and other documents as required and
the procuring of all required Licenses or permits. Copies of all filed
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documents and all permits and Licenses shall be provided to Landlord for
Landlord's approval. Any Work not acceptable to the Department of Building
and Safety, or not reasonably satisfactory to Landlord, shall be promptly
replaced at Tenant's expense. Notwithstanding any failure by Landlord to
object to any such Work, Landlord shall have no responsibility therefore.
Tenant shall notify Landlord in writing not Less than ten (10) days prior to
the commencement of any Work as to name, telephone number and responsible
party for each and every contractor and/or subcontractor who is about to
commence Work.
(4) Tenant hereby indemnifies and agrees to defend and hold Landlord
harmless from and against any and all suits, claims, actions, losses, costs
or expenses (including claims for Worker's Compensation) of any nature
whatsoever together with attorneys' fees for counsel of Landlord's choice
arising out of or in connection with the Work or the performance of the Work
(including but not Limited to claims for breach of warranty, personal injury
or property damage). Landlord shall have the right in Landlord's sole and
exclusive discretion, to settle, compromise, or otherwise dispose of any and
all suits, claims, and actions.
(5) No Work shall proceed without Worker's Compensation and public
Liability insurance and property damage insurance, at (in amounts and with
companies and on forms satisfactory to Landlord and, if Landlord shall so
request, naming Landlord as additional insured. Not Less than thirty (30)
days before commencing the Work, certificates of such insurance shall be
furnished to Landlord or, if requested, the original policies thereof shall
be submitted for Landlord's approval. ALL such policies shall provide that
thirty (30) days, notice must be given to Landlord before terminating or
cancellation. In addition, no Work shall proceed without Tenant's contractor
providing payment and performance bond(s) satisfactory to Landlord.
(6) Landlord shall have no responsibility for the Work and Tenant will
remedy at Tenant's own expense and be responsible for any and all defects in
all such Work that may appear during or after the completion thereof whether
the same shall affect the premises in particular or any parts of the Building
in general. Tenant shall reimburse Landlord for any extra expense incurred by
Landlord by reason of faulty work done by Tenant or Tenant's contractors, by
reason of delays caused by such Work, or by reason of inadequate cleanup.
(7) If the performance of the Work shall require that additional
services or facilities (including but not Limited to extra elevator services,
hoisting, cleanup or other cleaning services, trash removal, field
supervision, or ordering of materials) be provided, Tenant shall pay Landlord
a reasonable charge therefore together with twenty percent (20%) for
Landlord's supervision and overhead. If Tenant employs Landlord at Tenant's
expense to perform any portion of the Work and thereafter elects to itself
(through a subcontractor selected by Tenant but approved by Landlord) perform
any component of such portion (including, but without Limiting the generality
of the foregoing, finishes or overstandard items), then Tenant shall pay
Landlord ten percent (10%) of such subcontractor's total bill as and for
Landlord's supervision and overhead.
(8) All of Tenant's contractors, subcontractors, employees, servants and
agents must work in harmony with and shall not interfere with any labor
employed by Landlord, or Landlord's contractors or by any other tenant or its
contractors.
(9) All Work performed by Tenant or Tenant's contractors shall be
scheduled through Landlord and shall be performed on weekdays, Monday through
Friday, or other times which Landlord specifies. Any Work to be performed at
other times or in adjacent tenant's areas shall be pursued only after
obtaining Landlord's express written permission and shall be done only if an
agent of employee of Landlord is present; Tenant will reimburse Landlord for
the expense of any such employee or agent.
(10) All core drilling, concrete cutting, demolition of partitions or
removal of rubbish, shall be done between the hours of 7:00 p.m. and 6:00
a.m., or other times which Landlord specifies.
(11) If any shut down of plumbing, electrical, or air conditioning
equipment becomes necessary, Tenant shall notify Landlord and Landlord will
determine when such shutdown may be made. Any such shut down shall be done
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only if agent or employee of Landlord is present. Tenant will reimburse
Landlord for the expense of any such employee or agent.
(12) Any noise complaints by tenants of adjacent areas are to be
remedied immediately or alteration operations are to cease until said noise
is abated.
(13) Tenant or Tenant's contractors will in no event be allowed to
install plumbing, mechanical, electrical wiring or fixtures, acoustical or
integrated ceilings, unless prior written approval is obtained from Landlord.
In addition to the foregoing, at I data processing and other special
electrical equipment shall be installed only under the supervision of
Landlord or Landlord's electrical contractor.
(14) Notwithstanding Paragraph (13), Tenant agrees to be entirety
responsible for the maintenance or the balancing of any heating, ventilating
or air conditioning system installed by Tenant and/or maintenance of the
electrical or plumbing Work installed by Tenant and/or maintenance of
lighting fixtures, partitions, doors, hardware or any other installations
made by Tenant. Such maintenance shall be performed only by a contractor or
contractors approved in writing in advance by Landlord.
(15) Any hardware, light fixtures or any heating, ventilating or air
conditioning installations (the "Installations" ) installed in the premises
which Tenant permanently removes, shall be stored by Tenant where directed by
Landlord. No such removal may be made unless shown on the plans and
specifications approved by Landlord. Tenant agrees, at Tenant's expense, to
reinstall any or all such installations at the expiration of the Term should
Landlord so require.
(16) Landlord expressly reserves the right to revoke consent upon notice
to Tenant in the event of a breach of any of the terms or conditions herein,
in which case all Work shall immediately cease to the extent directed by
Landlord in such notice.
(17) Nothing herein contained shall be construed as (a) constituting
Tenant as Landlord's agent for any purpose whatsoever or (b) a waiver by
Landlord of any of the terms or provisions of the Lease. Any default by
Tenant with respect to any portion of this Exhibit "B" Construction Agreement
shall, at Landlord's option, be deemed a breach of the Lease as to which
Landlord shall have all the rights and remedies as in the case of a breach of
said Lease.
HOMELIFE REALTY SERVICES, INC.,
a Delaware Corporation
By: /s/ Jon Corner
---------------------------------------
Jon Corner
Its: Executive Vice President/General Manager
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EXHIBIT C
LEGAL DESCRIPTION
Parcel 1 of Parcel Map No. 88-174 in the City of Newport Beach, County of
Orange, State of California, as per Map recorded on October 31, 1988 in Book
238, Pages 5 and 6 of Parcel Maps, Records of Orange County, California.
EXHIBIT D
RULES AND REGULATIONS
1. No sidewalks, entrance, passages, courts, elevators, vestibules,
stairways, corridors or halts shall be obstructed or encumbered by
Tenant or used for any purpose other than ingress and egress to and from
Demised Premises or the Building and if Demised Premises is situated on
the ground floor of the Building. Tenant shall further, at Tenant's own
expense, keep the sidewalks and curb directly in front of Demised
Premises clean and free from rubbish.
2. No awning or other projection shall be attached to the outside waits or
windows of the Building without the prior written consent of Landlord.
No curtains, blinds, shades, drapes or screens shall be attached to or
hung in, or used in connection with any window or door of Demised
Premises, without the prior written consent of Landlord. Such awnings,
projections, curtains, blinds, shades, drapes, screens and other
fixtures must be of a quality, type, design, color, material and general
appearance approved by Landlord, and shall be attached in the manner
approved by Landlord. All electrical fixtures hung in offices or spaces
along the perimeter of Demised Premises must be fluorescent, of a
quality, type, design, bulb color, size and general appearance approved
by Landlord.
3. No sign, advertisement, notice or other Lettering shall be exhibited,
inscribed, painted or affixed by Tenant on any part of the outside or
inside of Demised Premises or of the Building, without the prior written
consent of Landlord. In the event of the violation of the foregoing by
Tenant, Landlord may remove same without any liability, and may charge
the expense incurred by such removal to Tenant. Interior signs on doors
and directory tablet shall be inscribed, painted or affixed for Tenant
by Landlord at the expense of Tenant, and shall be of a quality,
quantity, type, design, color, size, style, composition, material,
Location and general appearance acceptable to Landlord.
4. The sashes, sash doors, skylights, windows, and doors that reflect or
admit Light or air into the halls, passageways or other public pieces in
the Building shall not be covered or obstructed by Tenant, nor shall any
bottles, parcels, or other articles be pieced on the window sills, or in
the public portions of the Building.
5. No show cases or other articles shall be put in front of or affixed to
any part of the exterior of the Building, nor placed in public portions
thereof without the prior written consent of Landlord.
6. The water and wash closets and other plumbing fixtures shall not be used
for any purpose other than those for which they were constructed, and no
sweepings, rubbish, rags or other substances shall be thrown therein.
ALL damages resulting from any misuse of the fixtures shall be borne by
Tenant to the extent that Tenant or Tenant's agents, servants,
employees, contractors, visitors or Licensees shall have caused the same.
7. Tenant shall not mark, paint, drill into or in any way deface any part
of Demised Premises or the Building. No boring, cutting or stringing of
wires shall be permitted, except with the prior written consent of
Landlord, and as Landlord may direct.
8. No animal or bird of any kind shall be brought into or kept in or about
Demised Premises or the Bui Wing.
9. Prior to leaving Demised Premises for the day Tenant shall draw or lower
window covering and extinguish all Lights.
10. Tenant shall not make, or permit to be made, any unseemly or disturbing
noises or disturb or interfere with occupants of the Bui Wing or
neighboring buildings or premises or those having business with them.
Tenant shall not throw anything out of the doors, windows or skylights
or down the passageways.
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11. Neither Tenant nor any of Tenant's agents, servants, employees,
contractors, visitors or Licensees shall at any time bring or keep upon
Demised Premises any inflammable, combustible, or explosive fluid,
chemical or substance.
12. No additional Locks, bolts or mail slots of any kind shall be placed
upon any of the doors or windows by Tenant, nor shall any change be made
in existing Locks or the mechanism thereof. Tenant must, upon the
termination of the tenancy, restore to Landlord all keys of stores,
offices and toilet rooms, either furnished to, or otherwise procured by
Tenant, and in the event of the Loss of any keys so furnished, Tenant
shall pay to Landlord the cost thereof.
13. All removals, or the carrying in or out of any safes, freight,
furniture, fixtures, bulky matter or heavy equipment of any description
must take place during the hours which Landlord or its agent may
determine from time to time. Landlord reserves the right to prescribe
the weights and position of all safes, which must be placed upon
two-inch thick plank strips to distribute the weight. The moving of
safes, freight, furniture, fixtures, bulky matter or heavy equipment of
any kind must be made upon previous notice to the Superintendent of the
Building and in a manner and at times prescribed by him, and the persons
employed by Tenant for such work are subject to Landlord's prior
approval. Landlord reserves the right to inspect all safes, freight or
other bulky articles to be brought into the Building and to exclude from
the Building all safes, freight or other bulky articles which violate
any of these Rules and Regulations or the Lease of which these Rules and
Regulations are a part.
14. Tenants shall not occupy or permit any portion of Demised Premises to be
occupied as an office that is not generally consistent with the character and
nature of all other tenancies in the Building, or is (a) for an employment
agency, in public stenographer or typist, a labor union office, a physician's
or dentist's office, a dance or music studio, a school, a beauty salon or
barber shop, the business of photographic or multilith or multigraph
reproductions or offset printing (not precluding using any part of demised
premises for photographic, mutilith or multigraph reproductions solely in
connection with Tenant's own business and/or activities), a restaurant or
bar, an establishment for the sale of confectionery or soda or beverages or
sandwiches or ice cream or baked goods, an establishment for the preparation
or dispensing or consumption of food or beverages (of any kind) in manner
whatsoever, or as a news or cigar stand, or as a radio or television or
recording studio, theater or exhibition halt, for manufacturing, for the
storage of merchandise or for the sale of merchandise, goods or property of
any kind at auction, or for Lodging, steeping or for any immoral purpose, or
for any business which would tend to generate a Large amount of foot traffic
in or about the Building or the Land upon which it is Located, or any of the
areas used in the operation of the Building, including but not Limited to any
use (i) for a banking, trust company, depository, guarantee, or safe deposit
business, (ii) as a savings bank, or as savings and loan association, or as a
Loan company, (iii) for the sale of travelers checks, money orders, drafts,
foreign exchange or Letters of credit or for the receipt of money for
transmission, (iv) as a stock broker's or dealer's office or for the
underwriting of securities, or, (v) a government office or foreign embassy or
consulate, or (vi) tourist or travel bureau, or (b) a use which conflicts
with any so-called "exclusive" then in favor of, or is for any use the same
as that stated in any percentage Lease to, another tenant of the Building or
the Park, or (c) a use which would be prohibited by any other portion of this
Lease (including but not Limited to any Rules and Regulations then in effect)
or in violation of Law. Tenant shall not engage or pay any employees on
Demised Premises, except those actually working for Tenant on Demised
Premises nor shall Tenant advertise for Laborers giving an address at Demised
Premises.
15. Landlord shall have the right to prohibit any advertising or business
conducted by Tenant referring to the Building or the Park, which, in
Landlord's opinion, tends to impair the reputation of the Building or its
desirability as a first class building for offices, or the Park, and upon
notice from Landlord, Tenant shall refrain from or discontinue such
advertising.
16. Landlord reserves the right to exclude from the Building between the hours
of 6:00 p.m. and 8:00 a.m. on all days, and at all hours on Saturdays, Sundays
and Legal holidays, all persons who do not present a pass or equivalent
identification to the Building issued by Landlord. Landlord may furnish passes
or equivalent to Tenant so that Tenant
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may validate and issue same. Tenant shall safeguard said passes and shall be
responsible for all acts of persons in or about the Building who possess a
pass issued to Tenant.
17. Tenant's contractors shall, while in the Building or elsewhere in the
Park, be subject to and under the control and direction of the Superintendent
of the Building (but not as agent or servant of said Superintendent of
Landlord).
18. If Demised Premises is or becomes infested with vermin as a result of
the use or any misuse or neglect of Demised Premises by Tenant, its agents,
servants, employees, contractors, visitors or licensees, Tenant shall
forthwith at Tenant's expense cause the same to be exterminated from time to
time to the satisfaction of Landlord and shall employ such licensed
exterminators and shall be approved in writing in advance by Landlord.
19. The requirements of Tenant will be attended to only upon application at
the office of the Building. Building personnel shall not perform any work or
do anything outside of their regular duties, unless under special
instructions from the office of the Landlord.
20. Canvassing, soliciting and peddling in the Building or in the Park are
prohibited and Tenant shall cooperate to prevent the same.
21. No water cooler, air conditioning unit or system or other apparatus
shall be installed or used by Tenant without the written consent of Landlord.
22. There shall not be used in any space, or in the public halls, plaza
areas or lobbies of the Building, or elsewhere in the Park, either by Tenant
or by jobbers or others, in the delivery or receipt of merchandise, any hand
trucks or dollies, except those equipped with rubber tires and side guards.
If Tenant, in Landlord's judgement, has an excess amount of receiving or
shipping of merchandise each day, then Landlord may require Tenant to ship or
receive said merchandise on an after-hours basis.
23. Tenant, Tenant's agents, servants, employees, contractors, Licensees or
visitors shall not park any vehicles in any driveways, service area or
entrances, or areas posted "No Parking," or in any areas designated as
visitor areas.
24. Tenant shall install and maintain, at Tenant's sole cost and expense, as
adequate visibly marked (at all times property operational) fire extinguisher
next to any duplicating or photocopying machine or similar heat producing
equipment, which may or may not contain combustible material, in Demised
Premises.
25. Tenant shall keep its window coverings closed during any period of the
day when the sun is shining directly on the windows of Demised Premises.
26. Tenant shall not use the name of the Building for any purpose other than
as the address of the business to be conducted by Tenant in Demised Premises,
nor shall Tenant use any picture of the Building in its advertising,
stationary or in another manner without the prior written permission of
Landlord. Landlord expressly reserves the right at any time to change said
name without in any manner being Liable to Tenant therefor.
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