Exhibit 10.W
11 TH
FLOOR
Office Building
Lease
This Lease,
made and executed this 1st day of
November, 2002, between CITINATIONAL-BUCKEYE BUILDING CO., a
California limited partnership, 606 South Olive Street, Office of
the Building, Los Angeles, California 90014, hereinafter designated
the LANDLORD, and CITY NATIONAL BANK, a national banking
association, 400 North Roxbury Drive, Beverly Hills, California
90210, hereinafter designated the TENANT, consists of the
following agreements:
1. DEMISED PREMISES. USE AND
TERM. For and in consideration of the covenants hereinafter
mentioned, the Landlord leases to the Tenant and the Tenant hereby
leases from the Landlord the premises known as Suite 1100
consisting of approximately 9,696 rentable square feet located
on a portion of the 11 th
Floor (as per the [ILLEGIBLE] plan, marked Exhibit “A”)
in the CITY NATIONAL BANK BUILDING, 606 South Olive Street, City of
Los Angeles, California, 90014 to be used by said Tenant as and for
administrative offices and for no other purpose, for the
term commencing on the earlier of Tenant occupying the Premises
for the purpose of conducting business or March 1, 2003 and
ending December 31, 2006.
2. RENT. The Tenant
agrees to pay to the Landlord as rent for said leased premises,
monthly installments of Sixteen Thousand Nine Hundred
Sixty-Eight and 0/100 Dollars ($16,968.00), each installment
payable in advance on the 1st day of each and every calendar month
during the term hereof, commencing on the earlier of Tenant
occupying the Premises for the purpose of conducting business or
March 1, 2003, in lawful money of the United States of
America, which the Tenant agrees to pay to Landlord without
deduction or offset, prior notice or demand, at the office of the
building or such place as the LANDLORD may designate. Said
rent is subject to increases as provide in Articles 20, 37 and as
otherwise hereinafter provided. In the event the actual
commencement date of this lease should fall on other than the 1st
day of a calendar month, then the rental for the first and last
month of the lease term will be prorated on a calendar month
basis.
3. SUBLEASING. Neither
Tenant, nor Tenant’s legal representatives or successors
shall mortgage or encumber this lease or sublease, or use or occupy
or permit the demised premises or any part thereof to be used or
occupied by others, without the prior written consent of Landlord
in each instance in accordance with the express terms and
conditions of this Article. Any such mortgage, encumbrance,
sublease or permission without such consent shall be voidable, at
the option of Landlord and, at the option of Landlord, shall
terminate this lease. If the demised premises or any part
thereof be occupied by any party other than Tenant, without
Landlord’s consent, Landlord may at its option, collect rent
from the occupant, and apply the net amount collected to the rent
herein reserved but no such occupancy or collection shall be deemed
a waiver of the conditions of this Article or the acceptance
of the occupant as Tenant or Subtenant or a release of Tenant from
the further performance by Tenant of the obligations on the part of
Tenant under this lease.
No sublease may become effective
unless and until Tenant has given Landlord at least thirty (30)
days prior written notice of such proposed bonafide sublease, such
notice to be received by Landlord at least thirty (30) days prior
to the proposed commencement date of such proposed sublease.
Said notice shall state and include the following: the name
of the proposed Subtenant; the status of the proposed Subtenant
either as, an individual, partnership, corporation or the like; the
present business address of the proposed Subtenant; a present
financial statement of the proposed Subtenant; the stated use or
purpose and business to be conducted under the proposed sublease
the proposed commencement and termination date of such proposed
sublease: and whether all or portion of the leased premises is
proposed to be subleased under such proposed sublease.
Tenant may sublease all or a portion
of the demised premises only upon the obtaining of Landlord’s
written consent and subject to the following express conditions: A.
That Tenant does not sublease to more than a reasonable number of
Subtenants which number shall be subject to Landlord’s
approval; B. That each Subtenant shall be subject to the prior
written approval of Landlord which approval shall not be
unreasonably withheld, but without limiting the generality of the
foregoing, it shall be reasonable for Landlord to deny such
approval if: (1) The use to be made of the demised premises by the
proposed Subtenant is (a) not generally consistent with the
character and nature of all other [ILLEGIBLE] in the Building or
with Landlord’s leasing policy, or (b) a use which conflicts
with any so called “exclusive” then in favor of another
tenant of the Building or of any of Landlord’s other
Buildings which are in the same complex as the Building, or (c) any
use which is the same as that stated in any percentage lease to
another tenant of the Building or any of Landlord’s other
Buildings which are in the same complex as the Building or (d) 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 Subtenant is not
reasonably 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; C. That in no event shall the term of such
sublease be for a longer period thana the unexpired term of this
lease; D. That each sublease shall expressly provide that it is
subject and subordinate to this lease; E. That Tenant shall pay to
Landlord, Landlord’s then standard processing fee; F. That
the proposed Subtenant shall execute an agreement on
Landlord’s then standard form pursuant to which it shall
agree to perform faithfully and be bound by all of the terms,
covenants, conditions, provisions and agreements of this lease for
the period covered by the sublease to the extent of the space
subleased; G. That an executed duplicate original of each sublease
and assumption agreement in a form acceptable to Landlord, together
with all sums due, shall be delivered to Landlord within five (5)
days after the execution thereof and any such sublease shall not be
binding upon Landlord until the delivery of the foregoing to
Landlord and the execution and delivery of Landlord’s consent
thereto and; H. That Landlord shall have the right upon written
demand to require the Subtenant to pay the rent under the sublease
directly to the Landlord and/or to require Tenant to pay to
Landlord a sum equal to (i) Fifty percent (50%) of any rent or
other consideration paid to Tenant by any Subtenant which is in
excess of the rent then being paid by Tenant to Landlord to the
extent of, and as apportionable to the space sought to be subleased
pursuant to the terms of this lease and (ii) any other profit or
gain realized by Tenant from any such subleasing. All sums
payable hereunder by Tenant shall be paid to landlord as additional
rent immediately upon receipt thereof by Tenant. Any such
rent, profit, gain or other consideration, or sum equal to same, as
set forth herein, not so paid to Landlord as herein required, shall
be and is deemed to be held and retained by Tenant in trust for the
sole benefit of Landlord, and, whether actually held or retained by
Tenant or not, shall be and is deemed to be held and retained by
Tenant in trust for the sole benefit of Landlord, and whether
actually held or retained by Tenant or not, shall be chargeable to
Tenant and payable to Landlord upon demand. Any failure of
refusal by Tenant to pay Landlord same shall constitute a default
and material breach of the terms, covenants and conditions of this
lease subjecting Tenant to all the rights and remedies of Landlord
under this lease and applicable law.
The consent by Landlord to a
sublease shall not in any way be construed to relieve Tenant or the
Subtenant from obtaining the express consent in writing of Landlord
to any further subleasing. Any further subleasing shall
require the written consent of Tenant and any previous Subtenant
except that Tenant and any Subtenant hereunder expressly waive
their right to consent to any further subleasing of the premises on
their behalf by Landlord. The consent by Landlord to a
sublease shall not in any way be construed 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 to any of the terms, covenants, conditions, provisions or
agreements of this lease. Notwithstanding the consent of
Landlord to such sublease, Tenant shall remain liable for payment
of all bills rendered by Landlord for the charges incurred by the
Subtenant for services and materials supplied to the demised
premises. If Tenant is a corporation which, under the then
current guidelines published by the Commissioner or Corporations of
the State of California, is not deemed a public corporation, or if
Tenant is an unincorporated association or a partnership, the
transfer assignment, or hypothecation of any stock or interest in
such corporation, association or partnership in the excess of
twenty-five (25%) percent shall be deemed a proposed sublease
within the meaning of this Article, including the requirement of
obtaining Landlord’s prior written consent. Landlord
hereby consents to the assignment, subletting, or transfer of this
lease by Tenant to any corporation resulting from a consolidation,
or to the surviving corporation in case of merger, to which
consolidation or merger Tenant shall be party, or to any bank
acquiring all or substantially all of the assets of Tenant, or to
any corporation result from a reorganization of
Tenant.
4. EXPIRATION. If Tenant
shall hold-over after the expiration of the lease term with the
written consent of Landlord, such holding shall be construed to be
a tenancy only from month-to-to-month, but otherwise in accordance
with the terms and conditions hereof insofar as they are
applicable, but Tenant shall pay the rate Landlord is then offering
to prospective tenants for the herein demised premises for such
further time as Tenant may hold the same; but nothing in this
Article shall be construed as consent by Landlord to the
occupancy or possession of the demised premises by Tenant after the
expiration of the term hereof. If Tenant holds over after the
termination of this lease without express written consent of the
Landlord, Tenant shall pay to Landlord rent at the rate landlord is
then offering to prospective tenants for the herein demised
premises (but in no event less than two times the monthly rental
which was payable for the last month of the lease term), plus sums
payable under Article 20 and other sums payable as rent under
this lease for the period during which Tenant retains possession of
the premises. Nothing herein shall be construed as a waiver
of any of the Landlord’s rights or remedies to recover
possession of the demised premises. Tenant shall be liable to
Landlord for any and all damages suffered by Landlord including but
not limited to any damages to the demised premises and any lost
rentals, profits or leases suffered because of Tenant’s
holdover of the premises without the written consent of the
Landlord. This lease shall terminate on the date set forth
without the necessity of notice from either party.
6. AUTOMOBILE PARKING.
Automobile parking subject to availability, shall be extended
to Tenant’s invitees, in common with the invitees of other
tenants, at reasonable parking rates and upon other conditions
established by Landlord from time to time in the parking area where
designated by Landlord. Landlord reserves the sole right and
option as to whether or not an attendant will be furnished for such
automobile parking area or areas. If no attendant is
furnished, Landlord will provide suitable designation of the
parking area to Tenant. This right to park will be solely for
the accommodation of the Tenant and Tenant expressly agrees that
Landlord assumes no responsibility of any kind whatsoever in
reference to such automobile parking areas or the use thereof by
the Tenant, its employees or invitees. Notwithstanding
anything in the contrary contained in this Paragraph 6, Tenant
shall be entitled to nine (9) automobile parking permits per month
notwithstanding how many parking permits Tenant has used at anytime
during the Term.
7. ALTERATIONS-FIXTURES.
The leased premises shall not be altered, repaired or changed
without the written consent of Landlord first had and obtained, and
all such alterations, improvements or changes shall be at the sole
cost of Tenant, except that Tenant shall have the right to perform
non-structural improvements of the leased premises which do not
affect the Building systems (as hereinafter defined) or
substantially alter the layout of the leased premises up to a total
expenditure which does not exceed the sum of $50,000 for any or all
of such improvements within any twelve (12) month period, without
Landlord’s prior written consent. Tenant shall hold
Landlord and the demised premises harmless and free from any lien
or claim therefore and all other liability, claims and demands
arising out of any work done or material supplied to the demised
premises at the instance of Tenant, and from all actions, suits and
costs of suit by any person to enforce any such lien or claim of
lien, liability, claims or demands, together with the costs of suit
and attorney’s fees incurred by Landlord in connecting
therewith. Tenant shall cause any mechanic’s lien or
other lien filed against the demised premises or the building of
which the demised premises are a part to be released and removed
within ten (10) days of such filling either by the satisfaction of
such lien or by the posting of a bond. Landlord may impose,
as a condition of such consent, such requirements as Landlord in
its sole discretion may deem reasonable and desirable, including,
but not limited to, the requirement that Tenant utilize for such
purposes only contractors, materials, mechanics and materialmen
approved by Landlord, Tenant shall construct such improvements,
alterations or repairs in conformance with any and all applicable
rules and regulations of any Federal, State, County or Municipal
code or ordinance. Tenant agrees to give Landlord written
notice of the commencement date of any alterations, improvements or
repairs to be made in, to or upon the premises not later than
fifteen (15) days prior to the commencement of any such work, in
order to give Landlord time to post notices of
non-responsibility. All such alterations, repairs, additions
or improvements (including any alterations, repairs, additions or
improvements installed during Tenant’s prior occupancy of the
demised premises pursuant to any previous lease, sublease or
otherwise), shall, unless otherwise provided by written agreement,
become the property of Landlord and shall remain upon and be
surrendered with the premises upon the expiration of this lease or
any sooner termination thereof.
At the expiration of the term of
this lease and provided that Tenant is not in default hereunder,
all Tenant’s free-standing personal property not attached to
the demised premises may be removed by Tenant, at Tenant’s
sole expense, provided, however, Tenant shall pay for any damages
caused to the demised premises by the removal of said items, so
that after the removal of said items, the demised premises will be
in the same condition as at the time prior to the said
installations, if any, reasonable wear and tear excepted. In
any event, at the sole option of Landlord, Tenant at its expense,
must remove said items and any improvements installed by
Tenant
other than the original improvements to ready
the premises for Tenant’s occupancy under this lease, and
repair any damage to the premises occasioned by said installation
and/or removal and restore the premises to original
condition. If Tenant shall fail to complete such removal or
restoration and repair such damage, Landlord may do so and charge
the reasonable cost thereof to Tenant, which sum shall be deemed
additional rent hereunder and shall be due and payable from Tenant
to Landlord within ten (10) days after Landlord has rendered to
Tenant a written statement therefor. Any improvements,
equipment or personal property not removed by Tenant from the
premises upon the end of the term shall be conclusively presumed to
have been abandoned by Tenant, and the cost of removal, storage
and/or sale of same shall be deemed additional rent hereunder,
payable from Tenant to Landlord in the same manner as provided
above with respect to restoration charges. Any tenant
improvements for which an allowance is given by Landlord to Tenant
and all carpeting and/or drapes installed in the premises shall
become part of the realty and become the property of Landlord and
remain in the demised premises upon expiration or sooner
termination of the lease or Tenant’s vacating or abandonment
of the demised premises.
The provisions of Articles 28 and
39 are incorporated herein by this reference as if set forth in
full.
8. ETHICS. If Tenant is
a member of any profession, he agrees to abide by the Code of
Ethics of the association recognized as representing that
particular profession in the County of Los Angeles, State of
California.
9. UTILITIES. Landlord
agrees to supply for standard desk-furnished business offices,
during the usual building business hours on business days,
necessary amounts of domestic water for drinking purposes, heat,
air-conditioning, and electric current for lighting purposes and
power for a reasonable number of fractional horsepower office
machines, together with Landlord’s standard janitorial
services five times each week, Saturdays, Sundays and recognized
legal holidays excepted. Landlord shall not supply any
janitorial services or clearing for any plumbing fixtures located
in the demised premises only and not the common area .
Landlord shall provide the same services, maintenance and
repairs for the demised premises at Landlord’s sole cost as
Landlord provides to the other office space tenants in the building
(as distinguished from ground-floor tenants) commensurate with
comparable office buildings in Los Angeles. Tenant shall have
the obligation and responsibility for cleaning and maintaining any
such plumbing fixtures.
Tenant will not, without the written
consent of Landlord, use any office equipment in the premises using
current in excess of 110 volts, or which will in any way generate
heat or increase the amount of electricity, water or
air-conditioning usually furnished or supplied for use of the
premises as general office space; nor connect any apparatus or
device for the purposes of using electric current except through
existing electrical outlets or for the use of water except with
existing water pipes in the premises. If Tenant requires
water or electric current in excess of that usually furnished or
supplied for use of the premises as general office space.
Tenant shall first procure the consent of Landlord, which
consent shall not be unreasonably withheld or delayed; provide,
however, Landlord may cause a water meter or electric current
meter to be installed in the premises, to measure the amount of
water and electric current consumed for any such other use.
The cost of any such meters and of installation, maintenance and
repair thereof shall be paid for by Tenant and Tenant agrees to pay
Landlord promptly upon demand therefor by Landlord for all such
water and electric current consumed as shown by said meters, at the
rates charged for such services by the City of Los Angeles or the
local public utility, as the case may be, for furnishing the same,
plus any additional expense incurred in keeping account of the
water and electric current so consumed.
In the event Tenant utilizes or
consumes utilities or services after usual building business hours
or in amounts which are appreciably in excess of those utilized or
consumed by the average office tenants in the building, Tenant
shall reimburse Landlord, as additional rent, upon receipt of
demand therefor, the cost of such excess consumption.
Landlord agrees to supply, for any storage areas leased hereunder,
during usual building business hours on business days, reasonable
amounts of electric current for lighting purposes only.
Landlord shall have no obligation to supply to storage areas,
water, heat, air-conditioning or electric current for any purposes
other than lighting.
At any time during the term of this
lease, normal building business hours for the furnishing of any
utilities or services may be curtailed by Landlord without
abatement of rent, due to any Energy of Natural Resource
Conservation Act now or hereinafter enacted or the directive of any
Energy or Natural Resource Agency or any other similar or
dissimilar statute or directive of any federal, state or other
governmental, or quasi-governmental agency, or public utility, or
any other entity vested with the power to regulate utilities or
services.
10. NOTICES. All notices
to be given hereunder by Landlord to Tenant shall be in writing and
may be served either personally or by depositing the same in the
United States mail, postage prepaid, either by ordinary, registered
or certified mail, and addressed to Tenant at the demised
premises. Notice shall be deemed effective upon receipt of
personal delivery or three (3) days after deposit in any public
depository of the United States mail or one (1) business day after
delivery to an overnight courier service. If there be more
than one Tenant, then notice to any of them shall constitute notice
to all and notice from any of them shall constitute notice from
all. If Tenant be a corporation, then such service upon any
employee shall constitute service upon the corporation and in this
regard Tenant specifically waives any rights as to methods of
service as set out in Sections 1161 and 1162 of the California
Code of Civil Procedure. Tenant hereby waives all other
methods of notice prescribed by the Codes of California.
Any notice desired to be served on
Landlord by Tenant must be sent by prepaid United States registered
or certified mail to: Citinational-Buckeye Building Co., 606 South
Olive Street, Office of the Building, Los Angeles, California
90014, or at such other place as Landlord may from time to time
designate in writing.
11. INSURANCE. Tenant
shall, at its sole expense, procure and maintain comprehensive
public liability insurance naming Landlord as an additional insured
for the demised premises during the term of this lease in minimum
amounts of $1,000,000.00 combined single limit. Tenant shall
furnish Landlord with evidence of such insurance, in a form
satisfactory to Landlord, which shall provide that the coverage
shall not be canceled or reduced without ten (10) days prior
written notice to Landlord. The parties to this lease
shall each procure an appropriate clause in, or an endorsement on,
any policy of fire or extended coverage insurance covering the
premises and the building of which the premises are a part, and the
improvements, furniture, fixtures, and equipment located in or on
the premises, pursuant to which the insurance companies waive
subrogation or consent to a waiver of right of recovery, and having
obtained such clauses or endorsements of waiver or subrogation or
consent to a waiver of right of recovery, each party hereby agrees
that it shall not make any claim against or seek to recover from
the other for any loss or damage requiring from fire or other
hazards covered by such fire and extended coverage insurance
including negligent acts. Landlord shall procure and
obtain comprehensive public liability insurance naming Tenant as an
additional insured in the minimum amount of $1,000,000 combined
single limit. In addition, Landlord shall procure and
maintain 100% replacement cost insurance for the
Building.
12. RIGHTS OF LANDLORD.
Landlord reserves the following rights: (a) to change the address
and/or name of the building without notice or liability to Tenant;
(b) to designate all sources furnishing sign painting or lettering,
ice, bottled water and toilet supplies used on the premises; (c)
constantly to have pass keys to the premises; (d) to grant anyone
the exclusive right to conduct any particular business or
undertaking in the building in which the demised premises are
situated provided that in no instance shall such right interfere
or conflict with Tenant’s banking business ; (e) to enter
the demised premises upon 24 hour written notice except in an
emergency whether or not Tenant is present to admit Landlord
for inspections, repairs, alterations or additions to the premises
or the building in which the premises are situated for window
cleaning and janitorial services, to exhibit the premises to
others, to affix and display “For Rent” signs during
the last 6 months of the term of this lease, and for any
purpose whatsoever related to the safety, protection, preservation
or improvement of the premises, the said building, or
Landlord’s interest, without being deemed guilty of an
eviction or disturbance of Tenant’s use and possession, and
without being liable in any manner to Tenant on account thereof;
(f) at any time, and from time to time, whether at the instance of
Landlord or pursuant to governmental requirements, at
Landlord’s expense, to make repairs, alterations, additions,
improvements, whether structural or otherwise, in or to the
building, or any part thereof, including the demised
premises. Without limiting the generality of
the foregoing rights, Landlord shall
specifically have the right to remove, alter, improve or rebuild
the lobby and all other public and rentable areas of the building
as the same are presently or shall hereafter be constituted, or any
part or parts thereof. Landlord shall not be liable to Tenant
for any expense, injury, loss or damage resulting from any work so
done in or about the demised premises or the building or any
adjacent or nearby buildings, land, street or alley, all claims
against the Landlord for any and all such liability being hereby
expressly released by Tenant, unless caused by Landlord’s
negligence or willful misconduct. In connection with making
repairs, alterations, decorating, additions or improvements under
the terms of this Article. Landlord shall have the right to
access through the demised premises, as well as the right to take
into and upon and through said premises or any other part of the
building all material that may be required to make such repairs,
alterations, decorating, additions or improvements, as well as the
right in the course of such work to close entrances, doors,
corridors, elevators, or other building facilities, or temporarily
to abate the operation of such facilities, without being deemed or
held guilty of an eviction of Tenant and without liability for
damages to Tenant’s property, business or person and without
liability to Tenant by reason of interference with the business of
Tenant or inconvenience or annoyance to Tenant or the customers of
Tenant provided that Landlord shall in all events use the right
of access hereunder in such a manner as to minimize the disruption
to Tenant’s business . The rent reserved herein
shall in no wise abate while said repairs, alterations, decorating,
additions or improvement are being made, and Tenant shall not be
entitled to maintain any set-off or counter-claim for damages of
any kind against Landlord by reason thereof except in the case
of Landlord’s negligence , However, all such work shall
be done in such manner as to cause Tenant the least inconvenience
practicable. Landlord reserves and shall have the right to
enter upon the demised premises for the purpose of posting and
maintaining such notices on the premises as may be necessary to
protect Landlord against mechanic’s, materialmen’s or
other liens and any other notices that may be proper and
necessary.
13. DESTRUCTION-FIRE OR OTHER
CAUSE. If said building shall be totally destroyed, this
lease shall thereupon terminate. If said building or demised
premises shall be damaged by fire, earthquake, or any other cause
without fault or neglect of Tenant, so that the leased premises
become untenantable, then, if the leased premises cannot be made
tenantable within one hundred twenty (120) working days from the
date of such damage, this lease may be terminated by Landlord or
tenant . In any case where the leased premises are
rendered partially and permanently untenantable by fire,
earthquake, or other cause without the fault or neglect of Tenant,
the monthly rental shall be adjusted in the proportion that the
rental value of the untenantable portion of the demised premises
bears to the rental value of the whole thereof.
14. RIGHT OF
REPOSSESSION. If, in compliance with any law, or ordinance
now or hereafter enacted, or if required to comply with the
directions or requirements of any public officer, board or
commission, it becomes necessary for Landlord to acquire
permanently all or any portion of the demised premises, Landlord or
its assigns shall have the right to repossess the demised premises,
or any portion thereof, at any time upon thirty days’ written
notice to Tenant, and when said space shall have been so
permanently repossessed, Landlord shall, in lieu of any and all
claims for damages, allow Tenant a credit on Tenant’s rent in
the proportion that the rental value of the space taken bears to
the rental value of the whole of the demised premises; provided,
however, that if the space taken is of such an amount or size as to
make the remaining space unusable to Tenant, then Landlord, upon
thirty (30) days’ written notice from Tenant, will endeavor,
if available, to furnish Tenant with comparable space elsewhere in
the building and to place Tenant in such new space and pay all
costs incurred by Landlord or Tenant in such relocation , and
this lease and each and all of the terms, covenants and conditions
thereof shall thereupon remain in full force and effect and be
deemed applicable to such new space; upon acceptance of such
space by Tenant and upon its sole and absolute discretion
provided, however, that if Landlord shall be unable to provide
Tenant with such other space, then this lease shall thereupon cease
and terminate. No exercise by Landlord of any right herein
reserved shall entitle Tenant to damages for any injury or
inconvenienced occasioned thereby, nor shall Tenant by reason
thereof be entitled to any abatement in rent (except as above set
forth in case of taking of space permanently.)
15. EMINENT DOMAIN.
Should Landlord, at any time during the continuance in force of
this lease, be deprived of the building in which the demised
premises are situated, or any part thereof, or any part of the land
on which the building or appurtenances are situated, by
condemnation or eminent domain proceedings, this lease shall
terminate, at Landlord’s option, on the date when Landlord is
actually deprived of possession of said land or building, or some
part thereof, and thereupon the parties hereto shall be released
from all further obligations hereunder, and Landlord shall
thereupon repay to Tenant any rental theretofore paid by Tenant and
unearned at the date of such termination. Tenant shall not be
entitled to any compensation, allowance, claim or offset of any
kind against the Landlord, as damages or otherwise, by reason of
such condemnation or eminent domain proceedings or by reason of
being deprived of the demised premises or the termination of this
lease except to the extent Landlord receives proceeds which
relate to Tenant’s personal property , and said Tenant
does hereby waive, renounce and quit-claim to Landlord any right in
and to any award, judgment, payment or compensation which shall or
may be made or given because of the taking of said premises, or any
portion thereof, by virtue of any such condemnation or eminent
domain proceedings, whether received in any such action or in
settlement or compromise thereof by Landlord, also except to the
extent Landlord receives proceeds which relate to Tenant’s
personal property . Further , Tenant shall have
the right to file a separate claim to recover the value of its
personal property in the eminent domain proceedings.
16. USE OF BUILDING.
Tenant shall not be allowed to use the name of the building in
which the demised premises are located, or words to that effect, in
connection with any business carried on in said premises (except as
Tenant’s address) without written consent of Landlord.
Tenant shall not engage in any advertising whatsoever, which in any
way shall adversely affect the character of the building of which
the demised premises are a part. Tenant further covenants
and agrees not to suffer or permit said premises, or any part
thereof to be used in any manner that will injure or impair the
structural strength of said building, and not to suffer or permit
to be installed in said premises, any machinery or apparatus, the
weight or vibration of which will tend to injure or impair the
structural strength of said building.
17. SUCCESSORS. Subject
to the aforementioned restrictions on assignment of this lease on
the part of Tenant, the words “Landlord” and
“Tenant” as used herein include, apply to, and bind and
benefit the heirs, executors, administrators, assigns and
successors of Landlord and Tenant. In the event of any change
of name, Tenant agrees to furnish Landlord with a change of
business or corporate name with appropriate supporting
documentation.
18. CO-TENANTS. All
persons comprising Tenant, together with all assignees and
Subtenants, should Landlord elect to treat said assignees and
Subtenants as Tenants, are to be held and hereby agree to be held
jointly and severally responsible for the payment of rent and the
faithful performance of all the terms, covenants and conditions of
this lease. Landlord shall have the right to proceed against
any person liable under this lease without the necessity of first
proceeding against any other person and without first pursuing any
other remedy. Payment or refund by Landlord to any person who
is one of the Tenants hereunder of any sums, including but not
limited to the security deposit due under this lease, shall
constitute payment or refund to any persons comprising
Tenant.
19. NON-LIABILITY OF
LANDLORD. Except in the event of Landlord’s negligence
or willful misconduct, Landlord shall not be liable to Tenant, or
to any other person or persons whomsoever, and Tenant hereby waives
any and all claims for any damages to the leased premises or for or
on account of any loss, damage, theft, injury to any person or
property in or about said premises, or the building of which the
demised premises are a part, or the approaches or entrances
thereto, or on the streets, sidewalks, parking areas or corridors
thereof, caused or occasioned by said premises being out of repair,
by defects in said building or said premises or equipment contained
therein, including, but not limited to, any security system located
in or about the demised premises whether or not installed by
Landlord, or by the failure to keep the same in good order and
repair, or by fire, gas, water, electricity, failure or malfunction
of the air-conditioning, or by the breaking, overflowing or leaking
of roofs, pipes, or walls of said building, or for any other damage
or injury caused by any acts or events whatsoever beyond the
control of Landlord, including, but not limited to, the acts and
omissions of other Tenants and invitees of the building.
Landlord shall not be liable and Tenant hereby waives all claims
for damages that may be caused by Landlord in re-entering and
taking possession of the premises as herein provided.
20. INCREASE OF TAXES AND
OPERATING COSTS. Tenant shall pay all taxes assessed during
the term of this lease against Tenant’s personal property and
trade fixtures and against tenant improvements which exceed the
building standard tenant improvements whether installed by Landlord
or by Tenant, or in Tenant’s possession in, upon or about the
demised premises. Tenant shall also pay gross receipts tax or
any excise or other taxes or licenses on or measured by or
allocable to the rent payable hereunder (whether charged to
Landlord or to Tenant, or to either or both of them, and whether or
not now customary or within the contemplation of the parties
hereto). In the event any such taxes or licenses shall be or
have been imposed against the Landlord or the real property of
which the demised premises forms a part, then the amount of such
taxes shall be paid by Tenant, as additional rent upon demand for
payment by Landlord. Said sum shall be payable in advance in
equal monthly installments based upon Landlord’s estimate of
the total amount due. Said estimated monthly payments shall
be adjusted annually to the actual tax or license due by payment by
Tenant or credit by Landlord of any difference.
If, (a) in any property tax fiscal
year during the term of this lease Taxes shall be increased above
the Taxes for the base fiscal year, and/or (b) if in any calendar
year during the term of this lease Operating Costs shall be
increased above those in effect during the base year, both as
hereinafter defined, Tenant shall pay to Landlord, upon receipt of
a statement therefor and in the manner hereinafter set forth, as
additional rent, 3.44% of the amount of increase in
Operating Costs.
A. Definitions.
(1) “Taxes” shall
mean taxes and assessments upon or with respect to the building of
which the demises premises forms a part, ancillary parking
facilities servicing the building, and land upon which they are
located including but not limited to drive-ways, landscaped areas
and courtyard entrance areas (in this Article collectively
referred to as the “land and/or improvements”), imposed
by Federal, State or local governments. 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 improvements, or upon or with respect to the land and/or
improvements or the rents or income therefrom, in substitution of
or in lieu of any tax or assessment which would otherwise be a real
estate tax, such other tax or assessment shall be deemed to be a
real estate tax. In case there shall be a reduction of the
assessed valuation on the land and/or improvements for any fiscal
year which affects the taxes in any year for 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 and costs incurred in effecting such reduction,
including but not limited to attorneys fees, Property Tax
Consultants fee, and other professional fees provided that such
rent adjustment shall not reduce the rent payable hereunder below
the basic monthly rent payable as set forth in Article 2 of
this lease. “Taxes” shall include any property
taxes resulting from any transfer or conveyance of the realty of
which the demised premises forms a part or from any transfer or
conveyance of any ownership interest in any entity owning said
realty or any part thereof. (2) “Operating Costs”
shall mean (a) wage and labor costs applicable to persons engaged
in the management, operations, maintenance, overhaul, improvement
or repair of the land and/or improvements, whether said persons be
employed by Landlord or by an independent contractor, with whom
Landlord shall have contracted or may contract for such
services. It is hereby understood that 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 costs, if any, of providing disability,
hospitalization, medical welfare, pension, retirement or other
employee benefits imposed by law or by any collective bargaining
agreement, or any voluntary employee benefit plans, applicable with
respect to such employees, shall correspondingly affect the wage
and labor costs; and (b) cost of utilities, fuel, supplies, all
insurance, service contracts, improvements (excluding the interior
of tenant spaces) of or on the land and/or improvements, amortized
over the useful life of such improvements in accordance with
generally accepted accounting principles;
