AGREEMENT TO BUILD AND LEASE
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This Agreement to Build and Lease (this "Agreement") is made as of
October 27, 1997 by and between NIKKO CAPITAL CORP., a California corporation
("Owner") and CONSUMER PORTFOLIO SERVICES, INC., a California corporation
("Tenant").
RECITALS
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I. Owner is the record owner of a certain parcel of land in the City
of Irvine, County of Orange, State of California, more particularly described on
Schedule 1 (the "Land").
II. Tenant desires to occupy on the Land a 115,000 square foot office
building and related on and off site improvements, including structured parking
(the "Improvements") as depicted on Schedule 2.
III. Owner, on the terms and subject to the conditions set forth
herein, is willing to construct the Improvements on the Land and lease the Land
and the Improvements (collectively the "Property") to Tenant.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
l. DEFINITIONS: As used herein, the following terms have the following
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respective meanings:
Base Improvements. That portion of the Improvements described as the
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Base Improvements on Schedule 3 attached hereto.
Improvements: As described in Recital II.
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Land: As described in Recital I.
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Lease: The Lease of even date herewith between Owner as Lessor and
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Tenant as Tenant.
Final Plans and Specifications: The plans and specification prepared
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based on the Preliminary Plans and Specifications and approved by Owner and
Tenant as set forth in Section 2.1.
Preliminary Plans and Specifications: The preliminary plans and
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outline specifications for the Improvements prepared by the Project Architect,
approved by Owner and Tenant and listed on Schedule 3.
Project Architects: Xxx & Xxxxxxxx Architects or such other firm of
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architects selected by Owner and approved by Tenant.
Project Contractor: Xxxxxxx Xxxxxxxxxx Builders or such other general
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contractor selected by Owner and approved by Tenant.
Property: The Land and the Improvements
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Tenant Improvements: That portion of the Improvements not included
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with the Base Improvements.
Term Commencement Date: As defined in Section 2.5.
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Unavoidable Delays: Delays due to strikes, acts of God, inclement
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weather, governmental restrictions, enemy action, riots, civil commotion, fire,
unavoidable casualty, shortage of materials or other causes beyond the control
of Owner or the Project Contractor. Lack of funds shall not be deemed to be a
cause beyond the control of Owner.
2. DESIGN AND CONSTRUCTION OF THE IMPROVEMENTS.
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2.1 Plans and Specifications. Owner and Tenant have approved the
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Preliminary Plans and Specifications for the Improvements. Owner shall engage
the Project Architect to prepare plans and specifications for the Improvements
in conformity with the Preliminary Plans and Specifications. Tenant shall have
a period of ten (10) business days after receipt of the plans and specifications
to approve or disapprove the same. Any disapproval shall be in writing and
shall be accompanied by a detailed statement of what changes could be
incorporated in the plans and specifications to obtain Tenant's approval. Owner
shall have ten (10) days after receipt of Tenant's timely notice of disapproval
to notify Tenant whether Tenant's requested changes to the plans and
specifications will be incorporated into the design of the Improvements and, if
any requested changes will not be incorporated, the reasons therefore. Owner
shall make any changes requested by Tenant which are necessary in order to make
the Final Plans and Specifications consistent with the Preliminary Plans and
Specifications. Tenant may, within five (5) business days after receipt of
Owner's notice indicating any of Tenant's required changes will not be
incorporated, cancel this Agreement. If Tenant objects to items which were in
the Preliminary Plans and Specifications and cancels this Agreement, the cost of
preparing the Final Plans and Specifications shall be borne by Tenant. Owner
shall provide to Tenant, as and when prepared, all plans, specifications and
other materials regarding or in connection with the Improvements.
2.2 Construction of the Improvements. Owner shall, upon approval of
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Final Plans and Specifications for the Improvements, engage the Project
Contractor to construct the Improvements on the Land, pursuant to two (2)
construction contracts, one for the Base Improvements and one for the Tenant
Improvements. Both construction contracts shall include construction warranties
consistent with the warranties described in the Preliminary Plans and
Specifications and otherwise reasonably satisfactory to Tenant and the
construction contract for the Tenant Improvements shall be subject to Tenant's
approval. The construction contracts, among other things, shall require the
Project Contractor to cause the Improvements to be constructed substantially in
accordance with the Final Plans and Specifications, in a good and workmanlike
manner and using only materials complying with the Plans and Specifications and,
subject to Unavoidable Delays and delays due to Change Orders, to be complete
(as set forth in section 2.4) 270 days after commencement of construction.
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2.3 Payment of Costs of the Improvements. Owner shall pay all costs
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relating to the construction of the Base Improvements and the cost of the Tenant
Improvements up to $2,340,000.00. All cost for Tenant Improvements in excess of
$2,340,000.00 shall be paid by Tenant with the first $575,000.00 being deducted
from the moving and discretionary improvement allowance referred to in the next
sentence and the balance paid by Tenant as contracts are entered into or
amended, by change order or as otherwise approved by Tenant, for such cost. In
addition, on the Term Commencement Date (as defined in the Lease), Owner shall
pay to Tenant $575,000.00 (subject to reduction as provided in the preceding
sentence) as an allowance for moving and discretionary improvements and if the
cost of the Tenant Improvements is less than $2,340,000.00, 50% of the amount by
which the cost of the Tenant Improvements is less than $2,340,000.00. If after
the construction contract for the Tenant Improvements is entered into by Owner,
there are additional costs for the Tenant Improvements solely because of a
failure to properly integrate the Tenant Improvements with the Base
Improvements, such additional cost shall be borne by Owner.
2.4 Completion of the Improvements. The Improvements shall be deemed
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complete when (i) substantially completed in accordance with the Final Plans and
Specifications (excluding items of finish and detail or not otherwise necessary
for the normal use and occupancy of the Improvements for their intended purpose)
and are ready for occupancy as evidenced by a certificate of substantial
completion of the Project Architect and (ii) the City of Irvine has issued a
Certificate of Occupancy and cleared the Property for utility services. Tenant,
Project Contractor and a representative of Owner shall inspect the Improvements
on a date within thirty (30) days of the date the Improvements are substantially
complete specified by Owner by at least five (5) business days prior notice to
Tenant for the purpose of preparing a list of items of finish and detail or not
otherwise necessary for the normal use and occupancy of the Improvements for its
intended purpose so these items can be completed following the date the
Improvements are deemed complete as provided in this Section. Owner shall cause
Contractor to complete all such items as soon as practicable following the date
of the inspection but, subject to Unavoidable Delays, within ninety (90) days
following the date of the inspection.
2.5 Execution and Delivery of an Amendment to Lease/Occupancy of
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Improvements. Owner shall give Tenant at least thirty (30) days' prior written
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notice of the anticipated date of completion of the Improvements and shall give
Tenant written notice of any delays in the anticipated occupancy date for such
improvements as such delays become apparent. Within thirty (30) days after
completion of the Improvements, Owner and Tenant shall enter into an Amendment
to the Lease in substantially the form of Exhibit A and an Amendment to
Memorandum of Lease in substantially the form of Exhibit B, completed so that
the Lease Term commences on the date thirty (30) days after the Improvements are
complete as set forth in Section 2.4 or, if earlier, the date Tenant opens for
business on the Property ("Term Commencement Date"). The Lease Term will
commence on such date whether or not the Amendments are executed by Tenant.
2.6 Early Possession and Entry.
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(A) After the Improvements are complete, Owner shall deliver Tenant
exclusive possession of the Property for the purpose of installing trade
fixtures, furniture, equipment and business records and supplies, provided that
Owner shall have the right to enter the Property from time to time to inspect
construction and as otherwise reasonably necessary. Tenant will be responsible
for any injury to or death of persons or loss of or damage to property,
including the Improvements while Tenant has possession of the Property
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pursuant to this Section 2.6A following the delivery of possession of the
Property to Tenant but prior to the Term Commencement Date. Tenant will protect,
indemnify and hold Owner, its agents, employees, contractors or invitees
harmless from and against all liabilities, obligations, claims, damages,
penalties, causes of action, costs, loss and expenses (including, without
limitation, reasonable attorneys' fees and expenses), imposed upon or incurred
by or asserted against Owner or, its agents, employees, contractors or invitees
or the Property by reason of the occurrence or existence of any of the following
unless caused by the gross negligence, willful misconduct of, Owner, its agents
or employees: (a) any accident, injury to or death of persons or loss of or
damage to property occurring on or about the Property or any part thereof, or
(b) performance of any labor or services or the furnishing of any materials or
other property in respect of the Property or any part thereof at the request of
Tenant or (c) the presence, storage, use or handling of Hazardous Materials on
or about the Property other than those present on the date Tenant takes
possession of the Property.
(B) Prior to the delivery of possession of the Property to Tenant as
contemplated in Section 2.6(A), Tenant may with the prior approval of Owner and
the Project Contractor, enter the Property for the purpose of installing
Tenant's equipment provided that such entry does not interfere with or delay the
construction of the Improvements. In addition, Tenant and Tenant's agents may
enter onto the Property as provided in Section 6.9. In connection with any such
entry, Tenant will protect, indemnify and hold Owner, its agents, employees,
contractors or invitees harmless from and against all liabilities, obligations,
claims, damages, penalties, causes of action, costs, loss and expenses
(including, without limitation, reasonable attorneys' fees and expenses),
imposed upon or incurred by or asserted against Owner or its agents, employees,
contractors or invitees or the Property by reason of the occurrence or existence
of any of the following unless caused by the gross negligence, willful
misconduct of Owner, its agents or employees: (a) any accident, injury to or
death of persons or loss of or damage to property occurring on or about the
Property or any part thereof caused by Tenant, its agents, employees,
contractors or invitees, or (b) performance of any labor or services or the
furnishing of any materials or other property in respect of the Property or any
part thereof at the request of Tenant or (c) the storage, use or handling of
Hazardous Materials on or about the Property by Tenant.
(C) In case any action, suit or proceeding is brought against Owner,
its agents, employees, contractors or invitees by reason of any such occurrence
Owner will notify Tenant of such action, suit or proceeding, and Tenant may
resist and defend such action, suit or proceeding, or cause the same to be
resisted and defended by counsel selected by Tenant and acceptable to Owner.
The obligations of Tenant under this Section 2.6 shall survive any termination
of this Agreement.
2.7 Assignment of Improvements Warranties. Upon execution of the
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Amendment, Owner shall assign to Tenant for the Lease Term, all warranties,
guaranties and other claims obtained in connection with the construction of the
Improvements, including (i) the warranties of the Project Contractor and all
subcontractors, (ii) rights on claims against the Project Architect in
connection with the design and construction of the Improvements and (iii) rights
on claims against any other person relating to the design or construction of the
Improvements. Upon termination of the Lease for any reason, all such warranties
shall to the extent not being enforced by Tenant revert to the benefit of Owner.
2.8 Damages. If, within ninety (90) days, (as extended because of
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Unavoidable Delays) after the date specified in Section 2.2 for completion of
the Improvements, Owner fails to complete the Improvements (as specified in
Section 2.4), Owner agrees to credit Tenant with one (1) day of Basic Rent under
the Lease for each day
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after the ninetieth (90th) day (as extended because of Unavoidable Delays) after
the date specified in Section 2.2 for completion of the Improvements to the date
the Improvements are so complete.
3. CHANGE ORDERS: After approval of Final Plans and Specifications for the
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Improvements, Tenant may, by written request to Owner, request reasonable
changes to be made to the Improvements; provided such changes do not, without
the consent of Owner, change the general exterior character of the Property,
reduce the gross area of the Improvements or affect the structural portions or
mechanical systems. Owner shall request the Project Architect and Project
Contractor (after Owner's approval if Owner's approval is required) to review
the Change Order and to (i) determine the additional costs of construction, if
any, caused by the Change Order and (ii) determine the time delay, if any,
caused by the Change Order and (iii) to submit a written statement thereof to
Owner and Tenant. Thereafter, Tenant may by written notice to Owner, elect to
have any requested Change Order incorporated into the Improvements provided
Tenant pays any additional cost caused by the Change Order. The time for
completion of such Improvements will be extended by any time delays caused by
the Change Order. The additional cost and/or time delays caused by the Change
Order shall include not only the actual cost or time delay occasioned directly
by implementing the Change Order, but also all costs or time delays indirectly
caused by the Change Order because of scheduling differences, removal of work or
modifications of work already in place and additional costs for review of the
change orders by the Project Architect, the Project Contractor and any
construction lender.
4. CONDITION TO OWNER'S OBLIGATION TO CONSTRUCT. Owner's obligation to
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commence construction of the Improvements shall be subject the condition that
Final Plans and Specifications for the Improvements shall be complete and
approved by Tenant and Owner and Owner and Tenant shall have received (i) a
certificate from the Project Architect stating that the Improvements, when
constructed in accordance with the approved Plans and Specifications, shall
comply with all applicable laws, rules and regulations of all governmental
authorities applicable thereto, and (ii) a certificate from the structural
engineers engaged in the design of the Improvements, as to the adequacy of the
structural design of the Improvements (iii) all governmental approvals and
approvals from The Irvine Company under instruments of record necessary for the
construction of the Improvements in accordance with the Final Plans and
Specifications.
5. CONDITION TO TENANT'S OBLIGATION. Tenant's obligation under this Agreement
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and the Lease is subject to fulfillment of the following conditions:
5.1. Title. Tenant shall have received a policy of title insurance
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issued at Tenant's expense by First American Title Insurance Company in a form
and in an amount and subject to such exceptions as are reasonably satisfactory
to Tenant (or a committment of First American Title Insurance Company to issue
such a policy). If such policy or commitment is not received by Tenant within
ten (10) days from the date of this Agreement, Tenant may cancel this Agreement
and the Lease by written notice to Owner given within two (2) business days
after the expiration of this ten (10) day period.
5.2 Environmental. Tenant shall have thirty days after the date of
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this agreement to have a Phase I environmental review done for the Property. If
the environmental review concludes that there are Hazardous Materials (as
defined in the Lease), Tenant may cancel this Agreement and the Lease by written
notice to Owner given within this thirty (30) day period. Owner represents and
warrants to Tenant (which representation and warranty will survive the
commencement of the Lease) that Owner has not disposed of
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any Hazardous Materials on or under the Land and to Owners knowledge, there are
no Hazardous Materials on or under the Land.
5.3. Permits and Approvals. All governmental approvals and approvals
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from The Irvine Company or other third parties under instruments of record in
the Orange County Recorder's Office necessary for commencement of construction
of the Improvements in accordance with Final Plans and Specifications shall have
been issued and Owner shall have commenced construction on the Improvements on
or before November 1, 1997. Tenant may elect, at its option, to cancel this
Agreement and the Lease by reason of nonfulfillment of the foregoing condition
by written notice to Owner given at any time after November 1, l997 and prior to
commencement of construction of the Improvements.
5.4. Completion of the Improvements. The Improvements shall be
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substantially complete as provided in Section 2.4 within three hundred ten (310)
days after the date specified in Section 2.2 for completion of the Improvements,
Tenant may elect, at its option, to cancel this Agreement by reason of
nonfulfillment of the foregoing condition by written notice to Owner given at
any time thereafter and prior to substantial completion of the Improvements.
6. MISCELLANEOUS.
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6.1 Notices. All notices, requests, demands and other communications
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given or required to be given hereunder shall be sent as set forth in Section 39
of the Lease. Owner shall direct that Tenant be given a copy of any notice
given to Owner under any of the Permitted Exceptions (as defined in the Lease)
which require that notices be given to Owner as the owner of the Property.
6.2 Assignment. This Agreement shall be binding upon the parties
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hereto and their respective heirs, successors or representatives and this
Agreement may not be assigned by either party without the prior written consent
of the other party which consent shall not be unreasonably withheld. A sale of
a majority of the common stock of Tenant shall be deemed to be an assignment of
the Lease. Owner agrees to consent to any assignment of the Lease in connection
with the business combination; provided that: (i) the surviving entity and the
consolidated group, if any, which Tenant becomes a part, has a net worth, after
such business combination, at least equal to the net worth of Tenant prior to
such business combination or (ii) the parent corporation in any such
consolidated group guarantees the obligations of Tenant under the Lease.
6.3 Brokerage Fees. Owner and Tenant each represent and warrant to
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the other that no broker, agent or finder, licensed or otherwise has been
engaged by it, respectively, in connection with the transaction contemplated by
this Agreement, other than Xxx & Associates representing Owner and Xxxx Xxxxxx
representing Tenant, who shall be paid a commission in accordance with a
separate agreement with Owner. Owner shall be solely responsible for such
commission. In the event of any additional claims for broker's, agent's or
finder's fee or commission in connection with the negotiation, execution or
consummation of the transaction contemplated by this Agreement or of the Lease,
the party upon whose alleged statement, representation or agreement such claim
or liability arises shall indemnify, hold harmless and defend the other party
from and against such claims, including, without limitation, any reasonable
attorneys' fees and court costs.
6.4 Waiver, Modification, Etc. The waiver of any breach or condition
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of any provision hereunder by Owner or Tenant shall not be deemed to be a waiver
of any
6
preceding or subsequent breach or condition hereunder. No failure or
delay of any party in the exercise of any right given hereunder shall constitute
a waiver hereof nor shall any partial exercise of any right preclude the further
exercise thereof.
6.5 Severability. If any paragraph, section, sentence, clause or
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phrase contained in this Agreement shall become illegal, null or void against
public policy, or otherwise unenforceable, for any reason, or shall be held in
any court of competent jurisdiction to be illegal, null or void, against public
policy, or otherwise unenforceable, the remaining paragraphs, sections,
sentences, clauses or phrases contained in this Agreement shall not be affected
thereby.
6.6 Time of Essence. Time is of the essence in this Agreement as to
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all dates and time periods as set forth herein.
6.7 Amendment; Headings; Counterparts. This Agreement may be
---------------------------------
changed, waived, or terminated only by an instrument in writing signed by both
Owner and Tenant. The headings of this Agreement are for purposes of reference
only, and shall not limit or define the meaning hereof. This Agreement may be
executed in any number of counterparts, each of which is an original, but all of
which constitute one instrument.
6.8 ARBITRATION OF DISPUTES. ALL DISPUTES ARISING UNDER THIS
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AGREEMENT SHALL BE RESOLVED BY SUBMISSION TO BINDING ARBITRATION AT THE ORANGE
COUNTY OFFICE OF JAMS/ENDISPUTE ("JAMS") IN ACCORDANCE WITH ITS RULES AND
PROCEDURES REGARDING COMMERCIAL DISPUTES, EXCEPT TO THE EXTENT SUCH RULES OR
PROCEDURES VARY FROM THE FOLLOWING PARAGRAPHS (A) THROUGH (H):
(A) NOTICE. THE PARTY DESIRING TO INITIATE ARBITRATION CAN DO
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SO BY DELIVERING A NOTICE OF AN INTENTION TO ARBITRATE TO THE OTHER PARTY
AND TO JAMS. THE NOTICE MUST CONTAIN A DESCRIPTION OF THE DISPUTE, THE
AMOUNT OF MONEY INVOLVED, AND THE REMEDIES SOUGHT.
(B) ARBITRATOR. THE PARTIES SHALL ATTEMPT TO AGREE ON A RETIRED
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JUDGE FROM THE JAMS PANEL TO ACT AS THE ARBITRATOR HEREUNDER. IF THE
PARTIES ARE UNABLE TO AGREE, JAMS SHALL PROVIDE A LIST OF THREE AVAILABLE
JUDGES TO EACH PARTY AND EACH PARTY MAY STRIKE ONE. THE REMAINING JUDGE
SHALL SERVE AS THE ARBITRATOR. THE PARTIES AGREE THE ARBITRATION MUST BE
INITIATED WITHIN ONE YEAR AFTER THE CLAIMED BREACH OCCURRED OR ONE YEAR
AFTER THE BREACH WAS DISCOVERED OR SHOULD HAVE BEEN DISCOVERED AND THAT THE
FAILURE TO INITIATE ARBITRATION WITHIN THE ONE YEAR PERIOD CONSTITUTES AN
ABSOLUTE BAR TO THE INSTITUTION OF ANY ARBITRATION OR ANY JUDICIAL
PROCEEDING ON ANY DISPUTE SET FORTH IN THE NOTICE OF INTENT TO ARBITRATE.
(C) PRE-HEARING CONFERENCE. ONCE AN ARBITRATOR IS ASSIGNED TO
----------------------
HEAR THE MATTER, THE ARBITRATOR SHALL SCHEDULE A PRE-HEARING CONFERENCE TO
REACH AGREEMENT ON PROCEDURAL MATTERS, ARRANGE FOR THE EXCHANGE OF
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INFORMATION, OBTAIN STIPULATIONS, AND ATTEMPT TO NARROW THE ISSUES.
(D) DISCOVERY. IT IS THE PARTIES' OBJECTIVE TO EXPEDITE THE
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ARBITRATION PROCEEDINGS BY COOPERATING IN ALL DISCOVERY AS SET FORTH IN
CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 1283.05 EXCEPT THAT THE
LIMITATION IMPOSED BY SECTION 1283.05(e) SHALL NOT BE APPLICABLE. ALL
DISCOVERY DISPUTES SHALL BE DECIDED IN THE SOLE DISCRETION OF THE
ARBITRATOR.
(E) BRIEFS AND HEARING. THE PARTIES MUST FILE BRIEFS WITH THE
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ARBITRATOR AT LEAST THREE DAYS BEFORE THE ARBITRATION HEARING, SPECIFYING
THE FACTS EACH INTENDS TO PROVE AND ANALYZING THE APPLICABLE LAW. THE
PARTIES HAVE THE RIGHT TO REPRESENTATION BY LEGAL COUNSEL THROUGHOUT THE
ARBITRATION PROCEEDINGS. THE PRESENTATION OF EVIDENCE AT THE ARBITRATION
HEARING SHALL BE GOVERNED BY THE CALIFORNIA EVIDENCE CODE. WITHIN
REASONABLE LIMITATIONS, BOTH SIDES AT THE HEARING MAY CALL AND EXAMINE
WITNESSES FOR RELEVANT TESTIMONY, INTRODUCE RELEVANT EXHIBITS OR OTHER
DOCUMENTS, CROSS-EXAMINE OR IMPEACH WITNESSES WHO SHALL HAVE TESTIFIED
ORALLY ON ANY MATTER RELEVANT TO THE ISSUES, AND OTHERWISE REBUT EVIDENCE,
AS LONG AS THESE RIGHTS ARE EXERCISED IN AN EFFICIENT AND EXPEDITIOUS
MANNER IN THE SOLE DISCRETION OF THE ARBITRATOR. ORAL EVIDENCE GIVEN AT
THE ARBITRATION HEARING SHALL BE GIVEN UNDER OATH. ANY PARTY DESIRING A
STENOGRAPHIC RECORD MAY SECURE A COURT REPORTER TO ATTEND THE ARBITRATION
PROCEEDINGS. THE PARTY REQUESTING THE COURT REPORTER MUST NOTIFY THE OTHER
PARTY AND THE ARBITRATOR OF THE ARRANGEMENT IN ADVANCE OF THE HEARING, AND
MUST PAY FOR THE COST INCURRED.
(F) DECISION. THE ARBITRATOR'S DECISION SHALL BE BASED ON THE
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EVIDENCE INTRODUCED AT THE HEARING, INCLUDING ALL LOGICAL AND REASONABLE
INFERENCES THEREFROM. THE ARBITRATOR MAY GRANT ANY REMEDY OR RELIEF WHICH
IS JUST AND EQUITABLE. THE AWARD MUST BE MADE IN WRITING AND SIGNED BY THE
ARBITRATOR. IT SHALL CONTAIN A CONCISE STATEMENT OF THE REASONS IN SUPPORT
OF THE DECISION. THE AWARD MUST BE MAILED PROMPTLY TO THE PARTIES, BUT NO
LATER THAN THIRTY DAYS FROM THE CLOSING OF THE HEARING. THE AWARD CAN BE
JUDICIALLY ENFORCED (CONFIRMED, CORRECTED OR VACATED) PURSUANT TO
CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 1285 ET SEQ. THE AWARD IS FINAL
-- ---
AND BINDING AND THERE IS NO DIRECT APPEAL FROM THE AWARD ON THE GROUNDS OF
ERROR IN THE APPLICATION OF THE LAW.
(G) COSTS. EACH PARTY TO THE ARBITRATION MUST PAY ITS OWN
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WITNESS FEES. EACH PARTY MUST PAY ITS PRO-RATA SHARE OF THE ARBITRATOR'S
FEES. THE ARBITRATOR MUST AWARD TO THE PREVAILING PARTY ATTORNEYS' FEES
AND COSTS ACTUALLY AND REASONABLY INCURRED.
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NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY DISPUTE
ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION
DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING
UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE
SPECIFICALLY INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION. IF YOU REFUSE
TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED
TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR
AGREEMENT TO ARBITRATE IS VOLUNTARY.
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING
OUT OF THE MATTERS INCLUDED IN THE " ARBITRATION OF DISPUTES" PROVISION TO
NEUTRAL ARBITRATION.
__________________________ ________________________
OWNER'S INITIALS TENANT'S INITIALS
6.9 Tenant Participation. Tenant and Tenant's agents shall be
--------------------
entitled to participate in all meetings with the Project Architects or Project
Contractor relating to the design and construction of the Improvements. Owner
will endeavor to give Tenant at least twenty four (24) hours prior notice (which
need not be in writing) of the time and place of all such meetings and will
furnish Tenant with copies of any minutes of any such meeting. Tenant and
Tenant's agents shall have the right to enter the Property from time to time at
reasonable times to inspect the progress of the construction provided that such
entry shall not delay the course of construction nor shall Tenant interfere in
any fashion with the course of construction. Any entry by Tenant hereunder
shall be covered by the indemnity set forth in Section 2.6(B) of this Agreement.
6.10 Standard for Consents and Approvals. Any consent or approval to
-----------------------------------
be given by Owner or Tenant shall not be unreasonably withheld or delayed, and
if withheld, shall be in writing and be accompanied by a written explanation of
the reasons such consent or approval was withheld.
6.11 Termination. In the event this Agreement and the Lease are
-----------
terminated, Tenant hereby agrees to execute, acknowledge and deliver to Owner
all documents as Owner may reasonably deem necessary to evidence any such
termination including, but not limited to, such instrument or instruments
satisfactory to Lessor as may be necessary to eliminate the effect of the
Memorandum of Lease referred to in Section 40 of the Lease and to indemnify
Owner from all loss, cost or expense caused by Tenant's failure to execute,
acknowledge and deliver any such instrument including, but not limited to (i)
reasonable attorneys' fees arising as a result of such failure and all cost of
prosecuting any action or actions to expunge or remove the effect of such
Memorandum of record and (ii) all consequential damages or loss resulting from
such Memorandum being of record such as lost profits or opportunities as a
result of the slander of title arising out of such failure.
6.12 Exhibits. All exhibits and schedules referenced herein are
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attached hereto and hereby made a part of this Agreement by reference.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
OWNER
NIKKO CAPITAL CORP.,
a California corporation
By:
---------------------------------------------
Xxxxxxxx Xxxx, President
TENANT
CONSUMER PORTFOLIO SERVICES, INC., a California
corporation
By:
---------------------------------------------
Its:
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EXHIBIT A
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AMENDMENT TO LEASE
This amendment is made as of __________, 1998 by and between NIKKO
CAPITAL CORP., a California corporation ("Lessor") and CONSUMER PORTFOLIO
SERVICES, INC., a California corporation ("Tenant") to the Lease dated October
27, I997 between Lessor and Tenant of the Property at __________, Irvine,
California as follow:
1. The Term Commencement Date as referred to in Section 1 of the
Lease shall be __________, 1998.
2. As hereby amended, the Lease is and shall remain in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date and year first above written.
TENANT
CONSUMER PORTFOLIO SERVICES, INC.,
a California corporation
By:
----------------------------------------
Its:
---------------------------------------
By:
----------------------------------------
Its:
---------------------------------------
LESSOR
NIKKO CAPITAL CORP.,
a California corporation
By:
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Xxxxxxxx Xxxx,
President
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EXHIBIT B
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Nikko Capital Corp.
0000 XxxXxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
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AMENDMENT TO MEMORANDUM OF LEASE
THIS AMENDMENT TO MEMORANDUM OF LEASE is made as of the ______ day of
_______, 199__ by and between Nikko Capital Corp., a California corporation
(hereinafter "Landlord"), and Consumer Portfolio Services, Inc., a California
corporation (hereinafter "Tenant"), in order to amend that certain Memorandum of
Lease between Landlord and Tenant dated __________, 1997 ("Memorandum of Lease")
recorded with the Office of the Recorder of Orange County, California on
________________, 199___ as Instrument No. _______________.
The term of the lease referred to in the Memorandum of Lease commences
on ____________________, 199__.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to
Memorandum of Lease as of the day and year first written above.
LANDLORD: TENANT:
Nikko Capital Corp., a California corporation Consumer Portfolio Services, Inc.,
a California corporation
By: By:
------------------------------------------ -------------------------------
Its: Its:
----------------------------------------- ------------------------------
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STATE OF CALIFORNIA )
) SS:
COUNTY OF ______________ )
On ___________________, before me, ______________________, a Notary
Public in and for said State, personally appeared
_________________________________________, personally known to me (or proved to
me on the basis of satisfactory evidence) to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
___________________________________
(SEAL)
STATE OF CALIFORNIA )
) SS:
COUNTY OF ______________ )
On ___________________, before me, ______________________, a Notary
Public in and for said State, personally appeared
_________________________________________, personally known to me (or proved to
me on the basis of satisfactory evidence) to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
___________________________________
(SEAL)
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Schedule 1
LEGAL DESCRIPTION
ALL THAT REAL PROPERTY IN THE CITY OF IRVINE, COUNTY OF ORANGE, STATE OF
CALIFORNIA MORE PARTICULARLY DESCRIBED AS FOLLOWS:
PARCEL 1:
--------
Parcel 1 of Parcel Map No. 89-343 in the City of Irvine, County of
Orange, State of California, as per map filed April 30, 1990 in Book 251,
Page(s) 4 through 7 inclusive of Parcel Maps, in the office of the County
Recorder of said County.
EXCEPTING THEREFROM all oil, oil rights, minerals, mineral rights,
natural gas rights and other hydrocarbons by whatsoever name known that may be
within or under the parcel of land hereinabove described, together with the
perpetual right of drilling, mining, exploring and operating therefor, and
storing in and removing the same from said land or any other land, including the
right to whipstock or directionally drill and mine from land other than those
hereinabove described, oil or gas xxxxx, tunnels and shafts into, through or
across the subsurface of the land hereinabove described, and to bottom such
whipstocked or directionally drilled xxxxx, tunnels and shafts under and beneath
or beyond the exterior limits thereof, and to redrill, retunnel, equip,
maintain, repair, deepen and operate any such xxxxx or mines, without, however,
the right to drill, mine, store, explore and operate through the surface or the
upper 500 feet of the subsurface of the land hereinabove described.
PARCEL 2:
---------
An appurtenant non-exclusive easement for common driveway, drainage
and utility purposes, as described in the "Declaration Creating and Reserving
Common Driveway Easements" recorded May 9, 1990 as Instrument No. 90-243479 of
Official Records of said County, over the North 29.00 feet of Parcel 2, in the
City of Irvine, County of Orange, State of California, as per map filed in Book
251, Pages 4 through 7 inclusive of Parcel Maps, in the office of the County
Recorder of said County.
EXCEPT THEREFROM that portion lying within the easement for road
purposes to the City of Irvine per Deed recorded December 1, 1988 as Instrument
No. 88-625562 of official Records.
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SCHEDULE 2
SITE PLAN
and
BUILDING LAYOUT
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SCHEDULE 3
Description of the Improvements
--------------------------------
and
---
List of Plans and Specifications
--------------------------------
Description of Base Improvements
--------------------------------
Description of Tenant Improvements
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