RETAIL LEASE
between
3600 WILSHIRE, LLC,
A CALIFORNIA LIMITED LIABILITY COMPANY
(Landlord)
and
NARA BANK, NATIONAL ASSOCIATION
(Tenant)
SUITE 100A
0000 XXXXXXXX XXXXXXXXX XXX XXXXXXX, XXXXXXXXXX, 00000
January 17, 2003
TABLE OF CONTENTS
RETAIL LEASE
Article Title Page
------- ----- ----
1 Definitions 1
2 Premises 2
3 Term 2
4 Rental 2
5 Security Deposit 6
6 Use of Premises 6
7 Utilities and Services 7
8 Maintenance and Repairs 8
9 Alterations, Additions and Improvements 8
10 Indemnification and Insurance 9
11 Damage or Destruction 11
12 Condemnation 11
13 Relocation 12
14 Assignment and Subletting 12
15 Default and Remedies 13
16 Attorneys' Fees; Costs of Suits 15
17 Subordination and Attornment 15
18 Quiet Enjoyment 16
19 Rules and Regulations 16
20 Estoppel Certificates 16
21 Entry by Landlord 17
22 Landlord's Lease Undertakings-Exculpation from 17
Personal Liability; Transfer of Landlord's Interest
23 Holdover Tenancy 17
24 Notices 18
25 Brokers 18
26 Electronic Services 18
27 Parking 20
28 Miscellaneous 20
EXHIBITS
Exhibit A As - Built Plan
Exhibit A-1 Premises Floor Plan
Exhibit A-2 Parking Plan
Exhibit B Work Letter Agreement
Exhibit C Rules and Regulations
Exhibit D Personal Guaranty
Exhibit E Suite Acceptance Agreement
Exhibit F Asbestos Notification
Exhibit G Parking Agreement
Addendum 1
RETAIL LEASE
THIS RETAIL LEASE ("Lease"), dated JANUARY 17, 2003, is made and
entered into by and between 3600 Wilshire, LLC, a California limited liability
company, c/o JPB Partners, Inc., a California corporation, ("Landlord") NARA
BANK, NATIONAL ASSOCIATION, ("Tenant") upon the following terms and conditions:
ARTICLE I - DEFINITIONS
Unless the context otherwise specifies or requires, the following terms
shall have the meanings specified herein;
1.01 BUILDING. The term "Building" shall mean that certain office
building located at 0000 Xxxxxxxx Xxxxxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000
commonly known as The Wilshire Financial Tower together with any related land,
improvements, parking facilities, common areas, driveways, sidewalks and
landscaping.
1.02 PREMISES. The term "Premises" shall mean Suite 100A in the
3600 Building, as more particularly outlined on the drawing attached hereto as
Exhibit A and incorporated herein by reference. As used herein, "Premises" shall
not include any storage area in the Building, which shall be leased or rented
pursuant to separate agreement.
1.03 RENTABLE AREA OF THE PREMISES. The term "Rentable Area of the
Premises" shall mean approximately 7,961 rentable square feet, more or less,
which Landlord and Tenant have stipulated as the Rentable Area of the Premises,
the exact size and location shall be further determined upon final acceptance of
a mutually approved space plan by Landlord's architect using Building Owners and
Managers Association International ("BOMA") Standards for the measurement of
commercial office space (ANSIZ65-1-1996). Tenant acknowledges that the Rentable
Area of the Premises includes the usable area, without deduction for columns or
projections, multiplied by a load factor to reflect a share of certain areas,
which may include common or shared areas such as lobbies, corridors, mechanical,
utility, janitorial, boiler and service rooms and closets, restrooms and other
public, common and service areas of the Building.
1.04 LEASE TERM. The term "Lease Term" shall mean the period
between the Commencement Date and the Expiration Date (as such terms are
hereinafter defined), unless sooner terminated as otherwise provided in this
Lease. The term of the Lease shall be for TEN (10) YEARS.
1.05 COMMENCEMENT DATE. Subject to adjustment as provided in
Article 3, the term "Commencement Date" shall mean JULY 1, 2003.
1.06 EXPIRATION DATE. Subject to adjustment as provided in Article
3, the term "Expiration Date" shall mean JUNE 30, 2013.
1.07 BASE RENT. Subject to adjustment as provided in Article 4, the
term "Base Rent" shall mean Fifteen Thousand Five Hundred Twenty Three and
95/100ths Dollars ($15,523.95) per month for months One (1) through Twelve (12),
Fifteen Thousand Nine Hundred Eighty Nine and 67/100ths Dollars ($15,989.67) per
month for months Twelve (12) through Twenty Four (24), Sixteen Thousand Four
Hundred Sixty Nine and 36/100ths Dollars ($16,469.36) per month for months
Twenty Five (25) through Thirty Six (36), Sixteen Thousand Nine Hundred Sixty
Three and 44/100ths Dollars ($16,963.44) per month for months Thirty Seven (37)
through Forty Eight (48), Seventeen Thousand Four Seventy Two Hundred and
34/100ths Dollars ($17,472.34) per month for months Forty Nine (49) through,
Sixty (60), Seventeen Thousand Nine Hundred Ninety Six and 51/100ths Dollars
($17,996.51) per month for months Sixty One (61) through Seventy Two (72),
Eighteen Thousand Five Hundred Thirty Six and 41/100ths Dollars ($18,536.41) per
month for months Seventy Three (73) through Eighty Four (84), Nineteen Thousand
Ninety Two and 50/100ths Dollars ($19,092.50) per month for months Eighty Five
(85) through Ninety Six (96), Nineteen Thousand Six Hundred Sixty Five and
28/100ths Dollars ($19,665.28) per month for months Ninety Seven (97) through
One Hundred Eight (108) and Twenty Thousand Two Hundred Fifty Five and 23/100ths
Dollars ($20,255.23) per month for months One Hundred Nine (109) through One
Hundred Twenty (120), of the initial Lease term.
1.08 TENANT'S PERCENTAGE SHARE. Tenant's share shall be 1.9220%
with respect to increases in Property Taxes and Operating Expenses (as such
terms are hereinafter defined). Landlord may reasonably redetermine Tenant's
Percentage Share from time to time to reflect reconfigurations, additions or
modifications to the Building.
1.09 SECURITY DEPOSIT. The term "Security Deposit" shall mean None.
1.10 TENANT'S PERMITTED USE. The term "Tenant's Permitted Use"
shall mean Banking and office use and no other use or purpose without the
written consent of Landlord, which consent shall not be unreasonably withheld.
It is agreed by Landlord that no other space in said building may be leased for
or used by others for a similar business. Tenant will comply with the rules and
regulations now or hereafter adopted by Landlord for the building as a whole; it
being agreed that a copy of such rules and regulations will be supplied to
Tenant, and that same will be reasonable and will not conflict with the normal
operation of Landlord.
1
1.11 BUSINESS HOURS. The term "Business Hours" shall mean the hours
of 8:30 A.M. to 6:00 P.M., Monday through Friday (federal and state holidays
excepted). Holidays are defined as the following: New Years Day, President's
Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas
Day, and to the extent of utilities or services provided by union members
engaged at the Building, such other holidays observed by such unions.
1.12 LANDLORD'S ADDRESS FOR NOTICES. The term "Landlord's Address
for Notices" shall mean 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxxxxx,
Xxxxxxxxxx 00000, Attn: Property Manager.
1.13 TENANT'S ADDRESS FOR NOTICES. The term "Tenant's Address for
Notices" shall mean 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000X, Xxx Xxxxxxx, Xxxxxxxxxx
00000.
1.14 BROKER. The term "Broker" shall mean Xxxxxxx Properties Inc.,
as Landlord's Broker, and Xxxxxx X. Xxxxxxx, Inc., as Tenant's Broker.
1.15 GUARANTOR. The term "Guarantor" shall mean None.
1.16 TENANT'S PARKING STALLS: The term "Tenant's Parking Stalls"
shall mean FIFTY (50) PARKING SPACES, in Landlord's parking structure at
building's prevailing rates generally posted or quoted to the general public for
available parking spaces, in common with other tenants on a non exclusive right
to park, as provided in Article 27.
ARTICLE II - PREMISES
2.01 LEASE OF PREMISES. Landlord hereby leases the Premises to
Tenant, and Tenant hereby leases the Premises from Landlord, upon all of the
terms, covenants and conditions contained in this LEASE. On the Commencement
Date described herein, Landlord shall deliver the Premises to Tenant in
substantial conformance with the Work Letter Agreement attached hereto as
Exhibit B.
2.02 ACCEPTANCE OF PREMISES. Tenant acknowledges that Landlord has
not made any representation or warranty with respect to the condition of the
Premises or the Building or with respect to the suitability or fitness of either
for the conduct of Tenant's Permitted Use or for any other purpose. Tenant's
taking possession of the Premises, Landlord or its designee and Tenant will walk
the Premises for the purpose of reviewing the condition of the Premises shall be
deemed conclusive evidence that as of the date of taking possession of the
Premises are in good order and satisfactory condition. No promise of Landlord to
alter, remodel, repair or improve the Premises, the Building or the Project and
no representation, express or implied, respecting any matter or thing relating
to the Premises, Building, Project or this Lease (including, without limitation,
the condition of the Premises, the Building or the Project) have been made to
Tenant by Landlord or Landlord"s Broker, or any agents thereof. Tenant shall
execute a Suite Acceptance Letter, in the form of Exhibit E attached hereto,
accepting the Premises.
ARTICLE III - TERM
3.01 Except as otherwise provided in this Lease, the Lease Term
shall be for the period described in Section 1.04 of this Lease, commencing on
the Commencement Date described in Section 1.05 of this Lease and ending on the
Expiration Date described in Section 1.06 of this Lease; provided, however,
that, if, for any reason, Landlord is unable to deliver possession of the
Premises on the date described in Section 1.05 of this Lease, Landlord shall not
be liable for any damage caused thereby, nor shall the Lease be void or
voidable, but, rather, the Lease Term shall commence upon, and the Commencement
Date shall be the date that possession of the Premises is so tendered to Tenant
(except for Tenant-caused delays which shall not be deemed to delay commencement
of the Lease Term), and, unless Landlord elects otherwise, the Expiration Date
described in Section 1.06 of this Lease shall be extended by an equal number of
days.
ARTICLE IV - RENTAL
4.01 DEFINITIONS. As used herein,
(A) "Base Year" shall mean calendar year 2003.
(B) "Property Taxes" shall mean the aggregate amount of all
real estate taxes, assessments (whether they be general or special), sewer rents
and charges, transit taxes, taxes based upon the receipt of rent and any other
federal, state or local governmental charge, general, special, ordinary or
extraordinary (but not including income or franchise taxes, capital stock,
inheritance, estate, gift, or any other taxes imposed upon or measured by
Landlord's gross income or profits, unless the same shall be imposed in lieu of
real estate taxes or other ad valorem taxes), which Landlord shall pay or become
obligated to pay in connection with the Building, or any part thereof. Property
Taxes shall also include all fees and costs, including attorneys' fees,
appraisals and consultants' fees, incurred by Landlord in seeking to obtain a
reassessment, reduction of, or a limit on the increase in, any Property Taxes,
regardless of whether any reduction or limitation is obtained. Property Taxes
for any calendar year shall be
2
Property Taxes which are due for payment or paid in such year, rather than
Property Taxes which are assessed or become a lien during such year. Property
Taxes shall include any tax, assessment, levy, imposition or charge imposed upon
Landlord and measured by or based in whole or in part upon the Building or the
rents or other income from the Building, to the extent that such items would be
payable if the Building was the only property of Landlord subject to same and
the income received by Landlord from the Building was the only income of
Landlord. Property Taxes shall also include any personal property taxes imposed
upon the furniture, fixtures, machinery, equipment, apparatus, systems and
appurtenances of Landlord used in connection with the Building.
(C) "Operating Expenses" shall mean all costs, fees,
disbursements and expenses paid or incurred by or on behalf of Landlord in the
operation, ownership, maintenance, insurance, management, replacement and repair
of the Building (excluding Property Taxes) including without limitation:
(i) Premiums for property, earthquake, casualty,
liability, rent interruption or other types of insurance carried by Landlord.
(ii) Salaries, wages and other amounts paid or
payable for personnel including the Building manager, superintendent, operation
and maintenance staff, and other employees of Landlord involved in the
maintenance and operation of the Building, including contributions and premiums
towards fringe benefits, unemployment, disability and worker's compensation
insurance, pension plan contributions and similar premiums and contributions and
the total charges of any independent contractors or property managers engaged in
the operation, repair, care, maintenance and cleaning of any portion of the
Building.
(iii) Cleaning expenses, including without
limitation janitorial services, window cleaning, and garbage and refuse removal.
(iv) Landscaping expenses, including without
limitation irrigating, trimming, mowing, fertilizing, seeding, and replacing
plants.
(v) Heating, ventilating, air conditioning and
steam/utilities expenses, including fuel, gas, electricity, water, sewer,
telephone, and other services.
(vi) Subject to the provisions of Section 4.01
(C)(xii) below, the cost of maintaining, operating, repairing and replacing
components of equipment or machinery, including without limitation heating,
refrigeration, ventilation, electrical, plumbing, mechanical, elevator,
escalator, sprinklers, fire/life safety, security and energy management systems,
including service contracts, maintenance contracts, supplies and parts.
(vii) Other items of repair or maintenance of
elements of the Building.
(viii) The costs of policing, security and
supervision of the Building.
(ix) Fair market rental and other costs with
respect to the management office for the Building.
(x) The cost of the rental of any machinery or
equipment and the cost of supplies used in the maintenance and operation of the
Building.
(xi) Audit fees and the cost of accounting
services incurred in the preparation of statements referred to in this Lease and
financial statements, and in the computation of the rents and charges payable by
tenants of the Building.
(xii) Capital expenditures (a) made primarily to
reduce Operating Expenses, or to comply with any laws or other governmental
requirements, or (b) for replacements (as opposed to additions or new
improvements) of non-structural items located in the common areas of the
property required to keep such areas in good condition; provided, all such
permitted capital expenditures (together with reasonable financing charges)
shall be amortized for purposes of this Lease over the shorter of (i) their
useful lives, (ii) the period during which the reasonably estimated savings in
Operating Expenses equals the expenditures, or (iii) three (3) years.
(xiii) Legal fees and expenses.
(xiv) Payments under any easement, operating
agreement, declaration, restrictive covenant, or instrument pertaining to the
sharing of costs in any planned development.
(xv) A fee for the administration and management
of the Building as reasonably determined by Landlord from time to time.
Operating Expenses shall not include costs of alteration of the
premises of tenants of the Building, depreciation charges, interest and
principal payments on mortgages, ground rental payments, real estate brokerage
and leasing commissions, expenses incurred in enforcing obligations of tenants
of the Building, salaries and other compensation of executive officers of the
managing agent of the Building senior to the Building manager, costs of any
special service provided to any one tenant of the Building but not to tenants of
the Building generally, and costs of marketing or advertising the Building.
3
(D) If the Building does not have ninety five percent (95%)
occupancy during an entire calendar year, including the Base Year, then the
variable cost component of "Property Taxes" and "Operating Expenses" shall be
equitably adjusted so that the total amount of Property Taxes and Operating
Expenses equals the total amount which would have been paid or incurred by
Landlord had the Building been ninety five percent (95%) occupied for the entire
calendar year. In no event shall Landlord be entitled to receive from Tenant and
any other tenants in the Building an aggregate amount in excess of actual
Property Taxes and Operating Expenses as a result of the foregoing provision.
4.02 BASE RENT.
(A) During the Lease Term, Tenant shall pay to Landlord as
rental for the Premises the Base Rent described in Section 1.07 above, subject
to the following annual adjustments (herein called the "Rent Adjustments"):
(B) Annual Adjustments of Base Rent.
(a) Tax and Operating Expense Adjustment. During each
calendar year, the Base Rent payable by Tenant to Landlord, shall be increased
by (collectively, the "Tax and Operating Expense Adjustment"): (1) Tenant's
Percentage Share of the dollar increase, if any, in Property Taxes for such year
over Property Taxes for the Base Year; and (ii) Tenant's Percentage Share of the
dollar increase, if any, in any category of Operating Expenses paid or incurred
by Landlord during such year over the respective category of Operating Expenses
paid or incurred by Landlord during the Base Year. A decrease in Property Taxes
or any category of Operating Expenses below the Base Year amounts shall not
decrease the amount of the Base Rent due hereunder or give rise to a credit in
favor of Tenant.
(b) CPI Adjustment. During each calendar year, the
Base Rent payable by Tenant to Landlord, shall be adjusted to reflect increases
in the Consumer Price Index as follows:
(i) Definitions. The following terms shall have the
following meanings:
(1) "Index" means the "Consumer Price Index -
All Urban Consumers - Los Angeles/Long Beach/Anaheim Metropolitan Area" compiled
by the U.S. Department of Labor, Bureau of Labor Statistics, (1967 = 100). If a
substantial change is made in the Index, the revised Index shall be used,
subject to such adjustments as Landlord may reasonably deem appropriate in order
to make the revised Index comparable to the prior Index. If the Bureau of Labor
Statistics ceases to publish the Index, then the successor or most nearly
comparable index, as reasonably determined by Landlord, shall be used, subject
to such adjustments as landlord may reasonably deem appropriate in order to make
the new index comparable to the Index.
(2) "CPI Adjustment Date" means January 1 of
the year in which the anniversary of the Commencement Date falls, and January 1
of every year thereafter.
(3) "CPI Base" means the initial Base Rent
amount set forth in Section 4.02(A).
(ii) Computation of Adjustment. Effective as of each CPI
Adjustment Date, the Base Rent shall be adjusted to an amount to be determined
by multiplying the CPI Base by a fraction, the numerator of which shall be the
Index for the calendar month immediately preceding the CPI Adjustment Date and
the denominator of which shall be the Index for the calendar month immediately
preceding the month in which the Commencement Date occurs. Such fraction shall
not exceed, for any CPI Adjustment Date, an amount in excess of one hundred
percent, multiplied by the number of CPI Adjustment Dates that have then
occurred (including the present one). The Base Rent shall never be reduced as a
result of an adjustment pursuant to this paragraph. Landlord shall give Tenant
written notice indicating the adjusted Base Rent and the method of computation,
and, on or before the first day of the first calendar month following Tenant's
receipt of such written notice, Tenant shall pay to Landlord an amount equal to
the underpayment of Base Rent by Tenant for the period from the CPI Adjustment
Date until such date.
4.03 TAX AND OPERATING EXPENSE ADJUSTMENT PROCEDURE; ESTIMATES. The
Tax and Operating Expense Adjustment specified in Section 4.02(B)(a) shall be
determined and paid as follows:
(A) During each calendar year subsequent to the Base Year,
Landlord shall give Tenant written notice of its estimate of any increased
amounts payable under Section 4.02(B)(a) for that calendar year. On or before
the first day of each calendar month during the calendar year, Tenant shall pay
to Landlord one-twelfth (l/12th) of such estimated amounts; provided, however,
that, not more often than quarterly, Landlord may, by written notice to Tenant,
revise its estimate for such year, and subsequent payments by Tenant for such
year shall be based upon such revised estimate.
(B) Within one hundred twenty (120) days after the close of
each calendar year or as soon thereafter as is practicable, Landlord shall
deliver to Tenant a statement of that year's Property Taxes and Operating
Expenses, and the actual Tax and Operating Expense Adjustment to be made
pursuant to Section 4.02(B)(a) for such calendar year, as determined by Landlord
(the "Landlord's Statement") and such Landlord's Statement shall be binding upon
Tenant, except as provided in Section 4.04 below. If the amount of the actual
Tax and Operating
4
Expense Adjustment is more than the estimated payments for such calendar year
made by Tenant, Tenant shall pay the deficiency to Landlord upon receipt of
Landlord's Statement. If the amount of the actual Tax and Operating Expense
Adjustment is less than the estimated payments for such calendar year made by
Tenant, any excess shall be credited against Rent (as hereinafter defined) next
payable by Tenant under this Lease or, if the Lease Term has expired, any excess
shall be paid to Tenant. No delay in providing the statement described in this
subparagraph (B) shall act as a waiver of Landlord's right to payment under
Section 4.02(B)(a) above.
(C) If this Lease shall terminate on a day other than the end
of a calendar year, the amount of the Tax and Operating Expense Adjustment to be
paid pursuant to Section 4.02(B)(a) that is applicable to the calendar year in
which such termination occurs shall be prorated on the basis of the number of
days from January 1 of the calendar year to the termination date bears to 365.
The termination of this Lease shall not affect the obligations of Landlord and
Tenant pursuant to Section 4.03(B) to be performed after such termination.
4.04 REVIEW OF LANDLORD'S STATEMENT. Provided that Tenant is not
then in default beyond any applicable cure period of its obligations to pay Base
Rent, additional rent described in Section 4.02(B), or any other payments
required to be made by it under this Lease and provided further that Tenant
strictly complies with the provisions of this Section 4.04, Tenant shall have
the right, once each calendar year, to reasonably review supporting data for any
portion of a Landlord's Statement (provided, however, Tenant may not have an
audit right to all documentation relating to Building operations as this would
far exceed the relevant information necessary to properly document a
pass-through billing statement, but real estate tax statements, and information
on utilities, repairs, maintenance and insurance will be available), in
accordance with the following procedure:
(A) Tenant shall, within ten (10) business days after any such
Landlord's Statement is delivered, deliver a written notice to Landlord
specifying the portions of the Landlord's Statement that are claimed to be
incorrect, and Tenant shall simultaneously pay to Landlord all amounts due from
Tenant to Landlord as specified in the Landlord's Statement. Except as expressly
set forth in subsection (C) below, in no event shall Tenant be entitled to
withhold, deduct, or offset any monetary obligation of Tenant to Landlord under
the Lease (including, without limitation, Tenant's obligation to make all
payments of Base Rent and all payments of Tenant's Tax and Operating Expense
Adjustment) pending the completion of and regardless of the results of any
review of records under this Section 4.04. The right of Tenant under this
Section 4.04 may only be exercised once for any Landlord's Statement, and if
Tenant fails to meet any of the above conditions as a prerequisite to the
exercise of such right, the right of Tenant under this Section 4.04 for a
particular Landlord's Statement shall be deemed waived.
(B) Tenant acknowledges that Landlord maintains its records
for the Building at Landlord's manager's corporate offices presently located at
the address set forth in Section 1.12 and Tenant agrees that any review of
records under this Section 4.04 shall be at the sole expense of Tenant and shall
be conducted by an independent firm of certified public accountants of national
standing. Tenant acknowledges and agrees that any records reviewed under this
Section 4.04 constitute confidential information of Landlord, which shall not be
disclosed to anyone other than the accountants performing the review and the
principals of Tenant who receive the results of the review. The disclosure of
such information to any other person, whether or not caused by the conduct of
Tenant, shall constitute a material breach of this Lease.
(C) Any errors disclosed by the review shall be promptly
corrected by Landlord, provided, however, that if Landlord disagrees with any
such claimed errors, Landlord shall have the right to cause another review to be
made by an independent firm of certified public accountants of national
standing. In the event of a disagreement between the two accounting firms, the
review that discloses the least amount of deviation from the Landlord's
Statement shall be deemed to be correct. In the event that the results of the
review of records (taking into account, if applicable, the results of any
additional review caused by Landlord) reveal that Tenant has overpaid
obligations for a preceding period, the amount of such overpayment shall be
credited against Tenant's subsequent installment obligations to pay the
estimated Tax and Operating Expense Adjustment. In the event that such results
show that Tenant has underpaid its obligations for a preceding period, Tenant
shall be liable for Landlord's actual accounting fees, and the amount of such
underpayment shall be paid by Tenant to Landlord with the next succeeding
installment obligation of estimated Tax and Operating Expense Adjustment.
4.05 PAYMENT. Concurrently with the execution hereof, Tenant shall
pay Landlord Base Rent for the first calendar month of the Lease Term.
Thereafter the Base Rent described in Section 1.07, as adjusted in accordance
with Section 4.02, shall be payable in advance on the first day of each calendar
month. If the Commencement Date is other than the first day of a calendar month,
the prepaid Base Rent for such partial month shall be prorated in the proportion
that the number of days this Lease is in effect during such partial month bears
to the total number of days in the calendar month. All Rent, and all other
amounts payable to Landlord by Tenant pursuant to the provisions of this Lease,
shall be paid to Landlord, without notice, demand, abatement, deduction or
offset, in lawful money of the United States at Landlord's office in the
Building or to such other person or at such other place as Landlord may
designate from time to time by written notice given to Tenant. No payment by
Tenant or receipt by Landlord of a lesser amount than the correct Rent due
hereunder shall be deemed to be other than a payment on account; nor shall any
endorsement or statement on any check or any letter accompanying any check or
payment be deemed to effect or evidence an accord and satisfaction; and Landlord
may accept such check or payment without prejudice to Landlord's right to
recover the balance or pursue any other remedy in this Lease or at law or in
equity provided.
4.06 LATE CHARGE; INTEREST. Tenant acknowledges that the late
payment of Base Rent or any other amounts payable by Tenant to Landlord
hereunder (all of which shall constitute additional rental to the same extent
5
as Base Rent) will cause Landlord to incur administrative costs and other
damages, the exact amount of which would be impracticable or extremely difficult
to ascertain. Landlord and Tenant agree that if Landlord does not receive any
such payment on or before five (5) days after the date the payment is due,
Tenant shall pay to Landlord, as additional rent, (a) a late charge equal to TEN
PERCENT (10%) of the overdue amount to cover such additional administrative
costs; and (b) interest on the delinquent amounts at the lesser of the maximum
rate permitted by law if any or TWELVE PERCENT (12%) per annum from the date due
to the date paid.
4.07 ADDITIONAL RENT. For purposes of this Lease, all amounts
payable by Tenant to Landlord pursuant to this Lease, whether or not denominated
as such, shall constitute Base Rent. Any amounts due Landlord shall sometimes be
referred to in this Lease as "Rent".
4.08 ADDITIONAL TAXES. Notwithstanding anything in Section 4.01(B)
to the contrary, Tenant shall reimburse Landlord upon demand for any and all
taxes payable by or imposed upon Landlord upon or with respect to: any fixtures
or personal property located in the Premises; any leasehold improvements made in
or to the Premises by or for Tenant; the Rent payable hereunder, including,
without limitation, any gross receipts tax, license fee or excise tax levied by
any governmental authority; the possession, leasing, operation, management,
maintenance, alteration, repair, use or occupancy of any portion of the Premises
(including without limitation any applicable possessory interest taxes); or this
transaction or any document to which Tenant is a party creating or transferring
an interest or an estate in the Premises.
ARTICLE V - SECURITY DEPOSIT
5.01 Upon the execution of this Lease, Tenant shall deposit with
Landlord the Security Deposit described in Section 1.09 above. The Security
Deposit is made by Tenant to secure the faithful performance of all the terms,
covenants and conditions of this Lease to be performed by Tenant. If Tenant
shall default with respect to any covenant or provision hereof, Landlord may
use, apply or retain all or any portion of the Security Deposit to cure such
default or to compensate Landlord for any loss or damage which Landlord may
suffer thereby. If Landlord so uses or applies all or any portion of the
Security Deposit, Tenant shall immediately upon written demand deposit cash with
Landlord in an amount sufficient to restore the Security Deposit to the full
amount hereinabove stated. Landlord shall not be required to keep the Security
Deposit separate from its general accounts and Tenant shall not be entitled to
interest on the Security Deposit. Within thirty (30) days after the expiration
of the Lease Term and the vacation of the Premises by Tenant, the Security
Deposit, or such part as has not been applied to cure the default, shall be
returned to Tenant.
ARTICLE VI - USE OF PREMISES
6.01 TENANTS PERMITTED USE. Tenant shall use the Premises only for
Tenant's Permitted Use as set forth in Section 1.10 above and shall not use or
permit the Premises to be used for any other purpose. Tenant shall, at its sole
cost and expense, obtain all governmental licenses and permits required to allow
Tenant to conduct Tenant's Permitted Use. Landlord disclaims any warranty that
the Premises are suitable for Tenant's use and Tenant acknowledges that it has
had a full opportunity to make its own determination in this regard.
Tenant further specifically acknowledges that neither Landlord nor Landlord's
Broker, or any agents thereof, has made any representation or warranty with
respect to the suitability of the Premises for their intended Use, with respect
to the ability of Tenant to conduct a Cafe or restaurant business from the
Premises at a profit or with respect to the occupancy or expected occupancy
level of the Building.
6.02 COMPLIANCE WITH LAWS AND OTHER REQUIREMENTS.
(A) Tenant shall cause the Premises to comply in all material
respects with all laws, ordinances, regulations and directives of any
governmental authority having jurisdiction including, without limitation, any
certificate of occupancy and any law, ordinance, regulation, covenant, condition
or restriction affecting the Building or the Premises which in the future may
become applicable to the Premises (collectively "Applicable Laws").
(B) Tenant shall not use the Premises, or permit the Premises
to be used, in any manner which: (a) violates any Applicable Law; (b) causes or
is reasonably likely to cause damage to the Building or the Premises; (c)
violates a requirement or condition of any fire and extended insurance policy
covering the Building and/or the Premises, or increases the cost of such policy;
(d) constitutes or is reasonably likely to constitute a nuisance, annoyance or
inconvenience to other tenants or occupants of the Building or its equipment,
facilities or systems; (e) interferes with, or is reasonably likely to interfere
with, the transmission or reception of microwave, television, radio, telephone
or other communication signals by antennae or other facilities located in the
Building; or (f) violates the Rules and Regulations described in Article XIX.
6.03 HAZARDOUS MATERIALS. This paragraph is reciprocal from
Landlord.
(A) No Hazardous Materials, as defined herein, shall be
Handled, as also defined herein, upon, about, above or beneath the Premises or
any portion of the Building by or on behalf of Tenant, its subtenants or its
assignees, or their respective contractors, officers, directors, employees,
agents, or invitees. Any such Hazardous Materials so Handled shall be known as
Tenant's Hazardous Materials. Notwithstanding the foregoing, normal
6
quantities of Tenant's Hazardous Materials customarily used in the conduct of
general activities (e.g., copier fluids and cleaning supplies) may be Handled at
the Premises without Landlord's prior written consent. Tenant's Hazardous
Materials shall be Handled at all times in compliance with the manufacturer's
instructions therefor and all applicable Environmental Laws, as defined herein.
(B) Notwithstanding the obligation of Tenant to indemnify
Landlord pursuant to this Lease, Tenant shall, at its sole cost and expense,
promptly take all actions required by any Regulatory Authority, as defined
herein, or necessary for Landlord to make full economic use of the Premises or
any portion of the Building, which requirements or necessity arises from the
Handling of Tenant's Hazardous Materials upon, about, above or beneath the
Premises or any portion of the Building. Such actions shall include, but not be
limited to, the investigation of the environmental condition of the Premises or
any portion of the Building, the preparation of any feasibility studies or
reports and the performance of any cleanup, remedial, removal or restoration
work. Tenant shall take all actions necessary to restore the Premises or any
portion of the Building to the condition existing prior to the introduction of
Tenant's Hazardous Materials, notwithstanding any less stringent standards or
remediation allowable under applicable Environmental Laws. Tenant shall
nevertheless obtain Landlord's written approval prior to undertaking any actions
required by this Section, which approval shall not be unreasonably withheld so
long as such actions would not potentially have a material adverse long-term or
short-term effect on the Premises or any portion of the Building.
(C) Tenant agrees to execute affidavits, representations, and
the like from time to time at Landlord's request stating Tenant's best knowledge
and belief regarding the presence of Hazardous Materials on the Premises.
(D) "Environmental Laws" means and includes all now and
hereafter existing statutes, laws, ordinances, codes, regulations, rules,
rulings, orders, decrees, directives, policies and requirements by any
Regulatory Authority regulating, relating to, or imposing liability or standards
of conduct concerning public health and safety or the environment.
(E) "Hazardous Materials" means: (a) any material or
substance: (i) which is defined or becomes defined as a "hazardous substance,"
"hazardous waste," "infectious waste," "chemical mixture or substance," or "air
pollutant" under Environmental Laws; (ii) containing petroleum, crude oil or any
fraction thereof; (iii) containing polychlorinated biphenyls (PCB's); (iv)
containing asbestos; (v) which is radioactive; (vi) which is infectious; or (b)
any other material or substance displaying toxic, reactive, ignitable or
corrosive characteristics, as all such terms are used in their broadest sense,
and are defined, or become defined by Environmental Laws; or (c) materials which
cause a nuisance upon or waste to the Premises or any portion of the Building.
(F) "Handle," "handle," "Handled," "handled," "Handling," or
"handling" shall mean any installation, handling, generation, storage,
treatment, use, disposal, discharge, release, manufacture, refinement, presence,
migration, emission, abatement, removal, transportation, or any other activity
of any type in connection with or involving Hazardous Materials.
(G) "Regulatory Authority" shall mean any federal, state or
local governmental agency, commission, board or political subdivision.
ARTICLE VII - UTILITIES AND SERVICES
7.01 BUILDING SERVICES. As long as Tenant is not in monetary
default under this Lease, Landlord agrees to furnish or cause to be furnished to
the Premises the following utilities and services, subject to the conditions and
standards set forth herein:
(A) Non-attended automatic elevator service (if the Building
has such equipment serving the Premises), in common with Landlord and other
tenants and occupants and their agents and invitees.
(B) Water for restroom purposes for the common Building
restrooms only.
Any amounts which Tenant is required to pay to Landlord
pursuant to this Section 7.01 shall be payable upon demand by Landlord and shall
constitute additional rent.
7.02 INTERRUPTION OF SERVICES. Landlord shall not be liable for any
failure to furnish, stoppage of, or interruption in furnishing any of the
services or utilities described in Section 7.01 when such failure is caused by
accident, breakage, repairs, strikes, lockouts, labor disputes, labor
disturbances, governmental regulation, civil disturbances, acts of war,
moratorium or other governmental action, or any other cause beyond Landlord's
reasonable control, and, in such event, Tenant shall not be entitled to any
damages nor shall any failure or interruption xxxxx or suspend Tenant's
obligation to pay Base Rent and additional rent required under this Lease or
constitute or be construed as a constructive or other eviction of Tenant.
Further, in the event any governmental authority or public utility promulgates
or revises any law, ordinance, rule or regulation, or issues mandatory controls
or voluntary controls relating to the use or conservation of energy, water, gas,
light or electricity, the reduction of automobile or other emissions, or the
provision of any other utility or service, Landlord may take any reasonably
appropriate action to comply with such law, ordinance, rule, regulation,
mandatory control or voluntary guideline and Tenant's obligations hereunder
shall not be affected by any such action of Landlord. The parties acknowledge
7
that safety and security devices, services and programs provided by Landlord, if
any, while intended to deter crime and ensure safety, may not in given instances
prevent theft or other criminal acts, or ensure safety of persons or property.
The risk that any safety or security device, service or program may not be
effective, or may malfunction, or be circumvented by a criminal, is assumed by
Tenant with respect to Tenant's property and interests, and Tenant shall obtain
insurance coverage to the extent Tenant desires protection against such criminal
acts and other losses, as further described in this Lease. Tenant agrees to
cooperate in any reasonable safety or security program developed by Landlord or
required by Law.
ARTICLE VIII - MAINTENANCE AND REPAIRS
8.01 LANDLORD'S OBLIGATIONS. Except as provided in Sections 8.02
and 8.03 below, Landlord shall maintain the Building in resonable order and
repair throughout the Lease Term; provided, however, that Landlord shall not be
liable for any failure to make any repairs or to perform any maintenance unless
such failure shall persist for more than fifteen days after written notice of
the need for such repairs or maintenance is given to Landlord by Tenant, or such
greater period provided Landlord has commenced to cure, and diligently pursues
same to completion. Except as provided in Article XI, there shall be no
abatement of Rent, nor shall there be any liability of Landlord, by reason of
any injury or inconvenience to, or interference with, Tenant's business or
operations arising from the making of, or failure to make, any maintenance or
repairs in or to any portion of the Building.
8.02 TENANT'S OBLIGATIONS. During the Lease Term, Tenant shall, at
its sole cost and expense, maintain the Premises in good order and repair
(including, without limitation, the carpet, wall-covering, doors, plumbing and
other fixtures, equipment, alterations and improvements, whether installed by
Landlord or Tenant). Further, Tenant shall be responsible for, and upon demand
by Landlord shall promptly reimburse Landlord for, any damage to any portion of
the Building or the Premises caused by (a) Tenant's activities in the Building
or the Premises; (b) the performance or existence of any alterations, additions
or improvements made by Tenant in or to the Premises; (c) the installation, use,
operation or movement of Tenant's property in or about the Building or the
Premises; or (d) any act or omission by Tenant or its officers, partners,
employees, agents, contractors or invitees.
8.03 LANDLORD'S RIGHTS. Landlord and its contractors shall have the
right, at all reasonable times and upon twenty-four (24) hours prior oral or
telephonic notice to Tenant at the Premises, other than in the case of any
emergency in which case no notice shall be required, to enter upon the Premises
to make any repairs to the Premises or the Building reasonably required or
deemed reasonably necessary by Landlord and to erect such equipment, including
scaffolding, as is reasonably necessary to effect such repairs.
ARTICLE IX - ALTERATIONS, ADDITIONS AND IMPROVEMENTS
9.01 LANDLORD'S CONSENT; CONDITIONS. Tenant shall not make or
permit to be made any alterations, additions, or improvements in or to the
Premises ("Alterations") without the prior written consent of Landlord, which
consent, with respect to non-structural alterations, shall not be unreasonably
withheld. Landlord may impose as a condition to making any Alterations such
requirements as Landlord in its reasonable discretion deems necessary or
desirable including without limitation: Tenant's submission to Landlord, for
Landlord's prior written approval, of all plans and specifications relating to
the Alterations; Landlord's prior written approval of the time or times when the
Alterations are to be performed; Landlord's prior written approval of the
contractors and subcontractors performing work in connection with the
Alterations; employment of union contractors and subcontractors who shall not
cause labor disharmony; Tenant's receipt of all necessary permits and approvals
from all governmental authorities having jurisdiction over the Premises prior to
the construction of the Alterations; Tenant's delivery to Landlord of such bond
and insurance as Landlord shall reasonably require; and Tenant's payment to
Landlord of reasonable costs and expenses incurred by Landlord because of
Tenant's Alterations, including but not limited to costs incurred in reviewing
the plans and specifications for, and the progress of, the Alterations. Tenant
is required to provide Landlord written notice of whether the Alterations
include the Handling of any Hazardous Materials and whether these materials are
of a customary and typical nature for industry practices. Upon completion of the
Alterations, Tenant shall provide Landlord with copies of as-built plans.
Neither the approval by Landlord of plans and specifications relating to any
Alterations nor Landlord's supervision or monitoring of any Alterations shall
constitute any warranty by Landlord to Tenant of the adequacy of the design for
Tenant's intended use or the proper performance of the Alterations.
9.02 PERFORMANCE OF ALTERATIONS WORK. All work relating to the
Alterations shall be performed in compliance with the plans and specifications
approved by Landlord, all applicable laws, ordinances, rules, regulations and
directives of all governmental authorities having jurisdiction (including
without limitation Title 24 of the California Administrative Code) and the
requirements of all carriers of insurance on the Premises and the Building, the
Board of Underwriters, Fire Rating Bureau, or similar organization. All work
shall be performed in a diligent, first class manner and so as not to
unreasonably interfere with any other tenants or occupants of the Building. All
costs incurred by Landlord relating to the Alterations shall be payable to
Landlord by Tenant as additional rent upon demand. No asbestos-containing
materials shall be used or incorporated in the Alterations. No lead-containing
surfacing material, solder, or other construction materials or fixtures where
the presence of lead might create a condition of exposure not in compliance with
Environmental Laws shall be incorporated in the Alterations.
8
9.03 LIENS. Tenant shall pay when due all costs for work performed
and materials supplied to the Premises for the Alteration. Tenant shall keep
Landlord, the Premises and the Building free from all liens, stop notices and
violation notices relating to the Alterations or any other work performed for,
materials furnished to or obligations incurred by or for Tenant and Tenant shall
protect, indemnify, hold harmless and defend Landlord, the Premises and the
Building of and from any and all loss, cost, damage, liability and expense,
including attorneys' fees, arising out of or related to any such liens or
notices. Further, Tenant shall give Landlord not less then seven (7) business
days prior written notice before commencing any Alterations in or about the
Premises to permit Landlord to post appropriate notices of non-responsibility.
Tenant shall also secure, prior to commencing any Alterations, at Tenant's sole
expense, a completion and lien indemnity bond satisfactory to Landlord for such
work. During the progress of such work, Tenant shall, upon Landlord's request,
furnish Landlord with sworn contractor's statements and lien waivers covering
all work theretofore performed. Tenant shall satisfy or otherwise discharge all
liens, stop notices, claims or encumbrances within ten (10) days after Landlord
notifies Tenant in writing that any such lien, stop notice, claim or encumbrance
has been filed. If Tenant fails to pay and remove such lien, claim or
encumbrance within such ten (10) days, Landlord, at its election, may pay and
satisfy the same and in such event the sums so paid by Landlord, with interest
from the date of payment at the rate set forth in Section 4.06 hereof for
amounts owed Landlord by Tenant shall be deemed to be additional rent due and
payable by Tenant at once without notice or demand.
9.04 LEASE TERMINATION. Except as provided in this Section 9.04,
upon expiration or earlier termination of this Lease Tenant shall surrender the
Premises to Landlord in the same condition as existed on the date Tenant first
occupied the Premises, (whether pursuant to this Lease or an earlier lease),
subject to reasonable wear and tear. All Alterations shall become a part of the
Premises and shall become the property of Landlord upon the expiration or
earlier termination of this Lease, unless Landlord shall, by written notice
given to Tenant, require Tenant to remove some or all of Tenant's Alterations,
in which event Tenant shall promptly remove the designated Alterations and shall
promptly repair any resulting damage, all at Tenant's sole expense.
Notwithstanding the foregoing to the contrary, in the event that Landlord gives
its consent, pursuant to the provisions of Section 9.01 of this Lease, to allow
Tenant to make an Alteration in the Premises, Landlord agrees, upon Tenant's
written request, to notify Tenant in writing at the time of the giving of such
consent whether Landlord will require Tenant, at Tenant's cost, to remove such
Alteration at the end of the Lease Term.
ARTICLE X - INDEMNIFICATION AND INSURANCE
10.01 INDEMNIFICATION.
(A) Tenant agrees to protect, indemnify, hold harmless and
defend Landlord and any Mortgagee, as defined herein, and each of their
respective partners, directors, officers, agents and employees, successors and
assigns, (except to the extent of the losses described below are caused by the
gross negligence of Landlord, its agents and employees), from and against:
(i) any and all loss, cost, damage, liability or
expense as incurred (including but not limited to reasonable attorneys' fees and
legal costs) arising out of or related to any claim, suit or judgment brought by
or in favor of any person or persons for damage, loss or expense due to, but not
limited to, bodily injury, including death, or property damage sustained by such
person or persons which arises out of, is occasioned by or is in any way
attributable to the use or occupancy of the Premises or any portion of the
Building by Tenant or the acts or omission of Tenant or its agents, employees,
contractors, clients, invitees or subtenants except that caused by the sole
active negligence or willful misconduct of Landlord or its agents or employees.
Such loss or damage shall include, but not be limited to, any injury or damage
to, or death of, Landlord's employees or agents or damage to the Premises or any
portion of the Building.
(ii) any and all environmental damages which
arise from: (i) the Handling of any Tenant's Hazardous Materials, as defined in
Section 6.03 or (ii) the breach of any of the provisions of this Lease. For the
purpose of this Lease, "environmental damages" shall mean (a) all claims,
judgments, damages, penalties, fines, costs, liabilities, and losses (including
without limitation, diminution in the value of the Premises or any portion of
the Building, damages for the loss of or restriction on use of rentable or
usable space or of any amenity of the Premises or any portion of the Building,
and from any adverse impact on Landlord's marketing of space); (b) all
reasonable sums paid for settlement of claims, attorneys' fees, consultants'
fees and experts' fees; and (c) all costs incurred by Landlord in connection
with investigation or remediation relating to the Handling of Tenant's Hazardous
Materials, whether or not required by Environmental Laws, necessary for Landlord
to make full economic use of the Premises or any portion of the Building, or
otherwise required under this Lease. To the extent that Landlord is held
strictly liable by a court or other governmental agency of competent
jurisdiction under any Environmental Laws, Tenant's obligation to Landlord and
the other indemnities under the foregoing indemnification shall likewise be
without regard to fault on Tenant's part with respect to the violation of any
Environmental Law which results in liability to the indemnitee. Tenant's
obligations and liabilities pursuant to this Section 10.01 shall survive the
expiration or earlier termination of this Lease.
(B) Landlord agrees to protect, indemnify, hold harmless and
defend Tenant from and against any and all loss, cost, damage, liability or
expense, including reasonable attorneys' fees, with respect to any claim of
damage or injury to persons or property at the Premises, caused by the gross
negligence of Landlord or its authorized agents or employees.
9
(C) Notwithstanding anything to the contrary contained herein,
nothing shall be interpreted or used to in any way affect, limit, reduce or
abrogate any insurance coverage provided by any insurers to either Tenant or
Landlord.
(D) Notwithstanding anything to the contrary contained in this
Lease, nothing herein shall be construed to infer or imply that Tenant is a
partner, joint venturer, agent, employee, or otherwise acting by or at the
direction of Landlord.
10.02 PROPERTY INSURANCE.
(A) At all times during the Lease Term, Tenant shall procure
and maintain, at its sole expense, "all-risk" property insurance, for damage or
other loss caused by fire or other casualty or cause including, but not limited
to, vandalism and malicious mischief, theft, water damage of any type, including
sprinkler leakage, bursting of pipes, explosion, in an amount not less than one
hundred percent (100%) of the replacement cost covering (a) all Alterations made
by or for Tenant in the Premises; and (b) Tenant's trade fixtures, equipment and
other personal property from time to time situated in the Premises. The proceeds
of such insurance shall be used for the repair or replacement of the property so
insured, except that if not so applied or if this Lease is terminated following
a casualty, the proceeds applicable to the leasehold improvements shall be paid
to Landlord and the proceeds applicable to Tenant's personal property shall be
paid to Tenant.
(B) At all times during the Lease Term, Tenant shall procure
and maintain business interruption insurance in such amount as will reimburse
Tenant for direct or indirect loss of earnings attributable to all perils
insured against in Section 10.02(A).
(C) Landlord shall, at all times during the Lease Term,
procure and maintain "all-risk" property insurance in the amount not less than
ninety percent (90%) of the insurable replacement cost covering the Building in
which the Premises are located and such other insurance as may be required by a
Mortgagee or otherwise desired by Landlord.
10.03 LIABILITY INSURANCE.
(A) At all times during the Lease Term, Tenant shall procure
and maintain, at its sole expense, commercial general liability insurance
applying to the use and occupancy of the Premises and the business operated by
Tenant. Such insurance shall have a minimum combined single limit of liability
of at least Two Million Dollars ($2,000,000) per occurrence and a general
aggregate limit of at least Two Million Dollars ($2,000,000). All such policies
shall be written to apply to all bodily injury, property damage, personal injury
losses and shall be endorsed to include Landlord and its agents, beneficiaries,
partners, employees, and any deed of trust holder or mortgagee of Landlord or
any ground lessor as additional insureds. Such liability insurance shall be
written as primary policies, not excess or contributing with or secondary to any
other insurance as may be available to the additional insureds.
(B) Prior to the sale, storage, use or giving away of
alcoholic beverages on or from the Premises by Tenant or another person, Tenant,
at its own expense, shall obtain a policy or policies of insurance issued by a
responsible insurance company and in a form acceptable to Landlord saving
harmless and protecting Landlord and the Premises against any and all damages,
claims, liens, judgments, expenses and costs, including actual attorneys' fees,
arising under any present or future law, statute, or ordinance of the State of
California or other governmental authority having jurisdiction of the Premises,
by reason of any storage, sale, use or giving away of alcoholic beverages on or
from the Premises. Such policy or policies of insurance shall have a minimum
combined single limit of Two Million ($2,000,000) per occurrence and shall apply
to bodily injury, fatal or nonfatal; injury to means of support; and injury to
property of any person. Such policy or policies of insurance shall name Landlord
and its agents, beneficiaries, partners, employees and any mortgagee of Landlord
or any ground lessor of Landlord as additional insureds.
(C) Landlord shall, at all times during the Lease Term,
procure and maintain commercial general liability insurance for the Building in
which the Premises are located. Such insurance shall have minimum combined
single limit of liability of at least Two Million Dollars ($2,000,000) per
occurrence, and a general aggregate limit of at least Two Million Dollars
($2,000,000).
10.04 WORKERS' COMPENSATION INSURANCE. At all times during the Lease
Term, Tenant shall procure and maintain Workers' Compensation Insurance in
accordance with the laws of the State of California, and Employer's Liability
insurance with a limit not less than One Million Dollars ($2,000,000) Bodily
Injury Each Accident; Two Million Dollars ($2,000,000) Bodily Injury By Disease
- Each Person; and One Million Dollars ($1,000,000) Bodily Injury to Disease -
Policy Limit.
10.05 POLICY REQUIREMENTS. All insurance required to be maintained
by Tenant and Landlord shall be issued by insurance companies authorized to do
insurance business in the State of California and rated not less than B + in
Best's Insurance Guide. A certificate of insurance (or, at Landlord's option,
copies of the applicable policies) evidencing the insurance required under this
Article X shall be delivered to Landlord not less than thirty (30) days prior to
the Commencement Date. No such policy shall be subject to cancellation or
modification without thirty (30) days prior written notice to Landlord and to
any deed of trust holder, mortgagee or ground lessor designated by Landlord to
Tenant. Tenant shall furnish Landlord with a replacement certificate with
respect to any insurance not less than thirty (30) days prior to the expiration
of the current policy. Tenant shall have the right to provide the
10
insurance required by this Article X pursuant to blanket policies, but only if
such blanket policies expressly provide coverage to the Premises and Landlord as
required by this Lease.
10.06 WAIVER OF SUBROGATION. Each party hereby waives any right of
recovery against the other for injury or loss due to hazards covered by
insurance or required to be covered, to the extent of the injury or loss covered
thereby. Any policy of insurance to be provided by Tenant or Landlord pursuant
to this Article X shall contain a clause denying the applicable insurer any
right of subrogation against the other party.
10.07 FAILURE TO INSURE. If Tenant fails to maintain any insurance
which Tenant is required to maintain pursuant to this Article X, Tenant shall be
liable to Landlord for any loss or cost resulting from such failure to maintain.
Tenant may not self-insure against any risks required to be covered by insurance
without Landlord's prior written consent.
ARTICLE XI - DAMAGE OR DESTRUCTION
11.01 TOTAL DESTRUCTION. Except as provided in Section 11.03 below,
this Lease shall automatically terminate if the Building is totally destroyed.
11.02 PARTIAL DESTRUCTION OF PREMISES. If the Premises are damaged
by any casualty and, in Landlord's opinion, the Premises (exclusive of any
Alterations made to the Premises by Tenant) can be restored to its pre-existing
condition within two hundred seventy (270) days after the date of the damage or
destruction, Landlord shall, upon written notice from Tenant to Landlord of such
damage, except as provided in Section 11.03, promptly and with due diligence
repair any damage to the Premises (exclusive of any Alterations to the Premises
made by Tenant, which shall be promptly repaired by Tenant at its sole expense)
and, until such repairs are completed, the Rent shall be abated from the date of
damage or destruction in the same proportion that the rentable area of the
portion of the Premises which is unusable by Tenant in the conduct of its
business bears to the total rentable area of the Premises. If such repairs
cannot, in Landlord's opinion, be made within said two hundred seventy (270) day
period, then Landlord may, at its option, exercisable by written notice given to
the other within thirty (30) days after the date of the damage or destruction,
elect to make the repairs within a reasonable time after the damage or
destruction, in which event this Lease shall remain in full force and effect but
the Rent shall be abated as provided in the preceding sentence; if Landlord does
not so elect to make the repairs, then either Landlord or Tenant shall have the
right, by written notice given to the other within sixty (60) days after the
date of the damage or destruction, to terminate this Lease as of the date of the
damage or destruction.
11.03 EXCEPTIONS TO LANDLORD'S OBLIGATIONS. Notwithstanding anything
to the contrary contained in this Article XI, Landlord shall have no obligation
to repair the Premises if either: (a) the Building in which the Premises are
located is so damaged as to require repairs to the Building exceeding twenty
percent (20%) of the full insurable value of the Building; or (b) Landlord
elects to demolish the Building in which the Premises are located; or (c) the
damage or destruction occurs less than one (1) years prior to the Termination
Date, exclusive of option periods; or (d) the damage or destruction is caused by
an uninsured event. Further, Tenant's Rent shall not be abated if either (i) the
damage or destruction is repaired within five (5) business days after Landlord
receives written notice from Tenant of the casualty, or (ii) Tenant, or any
officers, partners, employees, agents or invitees of Tenant, or any assignee or
subtenant of Tenant, is, in whole or in part, responsible for the damage or
destruction.
11.04 WAIVER. The provisions contained in this Lease shall supersede
any contrary laws (whether statutory, common law or otherwise) now or hereafter
in effect relating to damage, destruction, self-help or termination, including
California Civil Code Sections 1932 and 1933.
ARTICLE XII - CONDEMNATION
12.01 TAKING. If the entire Premises or so much of the Premises as
to render the balance unusable by Tenant shall be taken by condemnation, sale in
lieu of condemnation or in any other manner for any public or quasi-public
purpose (collectively "Condemnation"), and if Landlord, at its option, is unable
or unwilling to provide substitute premises containing at least as much rentable
area described in Section 1.02 above, then this Lease shall terminate on the
date that title or possession to the Premises is taken by the condemning
authority, whichever is earlier.
12.02 AWARD. In the event of any Condemnation, the entire award for
such taking shall belong to Landlord. Tenant shall have no claim against
Landlord or the award for the value of any unexpired term of this Lease or
otherwise. Tenant shall be entitled to independently pursue a separate award in
a separate proceeding for Tenant's relocation costs directly associated with the
taking, provided such separate award does not diminish Landlord's award.
12.03 TEMPORARY TAKING. No temporary taking of the Premises shall
terminate this Lease or entitle Tenant to any abatement of the Rent payable to
Landlord under this Lease; provided, further, that any award for such temporary
taking shall belong to Tenant to the extent that the award applies to any time
period during the Lease Term and to Landlord to the extent that the award
applies to any time period outside the Lease Term.
11
ARTICLE XIII - RELOCATION
ARTICLE XIV - ASSIGNMENT AND SUBLETTING
14.01 RESTRICTION. Without the prior written consent of Landlord,
Tenant shall not, either voluntarily or by operation of law, assign, encumber,
or otherwise transfer this Lease or any interest herein, or sublet the Premises
or any part thereof, or permit the Premises to be occupied by anyone other than
Tenant or Tenant's employees (any such assignment, encumbrance, subletting,
occupation or transfer is hereinafter referred to as a "Transfer"). For purpose
of this Lease, the term "Transfer" shall also include (a) if Tenant is a
partnership, the withdrawal or change, voluntary, involuntary or by operation of
law, of a majority of the partners, or transfer of majority of partnership
interest, within a twelve month period, or the dissolution of partnership, (b)
if Tenant is a closely held corporation (i.e. whose stock is not publicly held
and not traded through an exchange or over the counter) or a limited liability
company, the dissolution, merger, consolidation, division, liquidation or other
reorganization of Tenant, or with in a twelve month period: (i) the sale or
other transfer of more than an aggregate of 50% of the voting securities of
Tenant (other than to immediate family members by reason of gift or death) or
(ii) the sale, mortgage, hypothecation or pledge of more than an aggregate of
50% of Tenant's net assets, and (c) any change by Tenant in the form of its
legal organization under applicable state law (such as, for example, a change
from a general partnership to a limited partnership or from a corporation to a
limited liability company). An assignment, subletting or other action in
violation of the foregoing shall be void and, at Landlord's option, shall
constitute a material breach of this Lease. Notwithstanding anything contained
in this Article XIV to the contrary, Tenant shall have the right to assign the
Lease or sublease the Premises, or any part thereof, to an "Affiliate" without
the prior written consent of Landlord, but upon at least twenty (20) days' prior
written notice to Landlord, provided that said Affiliate is not in default under
any other lease for space in a property that is managed by Landlord or its
managing agent. For purposes of this provision, the term "Affiliate" shall mean
any corporation or other entity controlling, controlled by, or under common
control with (directly or indirectly) Tenant, including, without limitation, any
parent corporation controlling Tenant or any subsidiary that Tenant controls.
The term "control," as used herein, shall mean the power to direct or cause the
direction of the management and policies of the controlled entity through the
ownership of more than fifty percent (50%) of the voting securities in such
controlled entity. Notwithstanding anything contained in this Article XIV to the
contrary, Tenant expressly covenants and agrees not to enter into any lease,
sublease, license, concession or other agreement for use, occupancy or
utilization of the Premises which provides for rental or other payment for such
use, occupancy or utilization based in whole or in part on the net income or
profits derived by any person from the property leased, used, occupied or
utilized (other than an amount based on a fixed percentage or percentages of
receipts or sales), and that any such purported lease, sublease, license,
concession or other agreement shall be absolutely void and ineffective as a
conveyance of any right or interest in the possession, use, occupancy or
utilization of any part of the Premises.
14.02 NOTICE TO LANDLORD. If Tenant desires to assign this Lease or
any interest herein, or to sublet all or any part of the Premises, then at least
thirty (30) days but not more than one hundred eighty (180) days prior to the
effective date of the proposed assignment or subletting, Tenant shall submit to
Landlord in connection with Tenant's request for Landlord's consent:
(A) A statement containing (i) the name and address of the
proposed assignee or subtenant; (ii) such financial information with respect to
the proposed assignee or subtenant as Landlord shall reasonably require; (iii)
the type of use proposed for the Premises; and (iv) all of the principal terms
of the proposed assignment or subletting; and
(B) Four (4) originals of the assignment or sublease on a form
approved by Landlord and four (4) originals of the Landlord's Consent to
Sublease or Assignment and Assumption of Lease and Consent.
14.03 LANDLORD'S RECAPTURE RIGHTS. At any time within twenty (20)
business days after Landlord's receipt of all (but not less than all) of the
information and documents described in Section 14.02 above, Landlord may, at its
option by written notice to Tenant, elect to: (a) sublease the Premises or the
portion thereof proposed to be sublet by Tenant upon the same terms as those
offered to the proposed subtenant; (b) take an assignment of the Lease upon the
same terms as those offered to the proposed assignee; or (c) terminate the Lease
in its entirety or as to the portion of the Premises proposed to be assigned or
sublet, with a proportionate adjustment in the Rent payable hereunder if the
Lease is terminated as to less than all of the Premises. If Landlord does not
exercise any of the options described in the preceding sentence, then, during
the above-described twenty (20) business day period, Landlord shall either
consent or deny its consent to the proposed assignment or subletting.
14.04 LANDLORD'S CONSENT; STANDARDS. Landlord's consent to a
proposed assignment or subletting shall not be unreasonably withheld; but, in
addition to any other grounds for denial, Landlord's consent shall be deemed
reasonably withheld if, in Landlord's good faith judgment: (i) the proposed
assignee or subtenant does not have the financial strength to perform its
obligations under this Lease or any proposed sublease; (ii) the business and
12
operations of the proposed assignee or subtenant are not of comparable quality
to the business and operations being conducted by other tenants in the Building;
(iii) the proposed assignee or subtenant intends to use any part of the Premises
for a purpose not permitted under this Lease; (iv) either the proposed assignee
or subtenant, or any person which directly or indirectly controls, is controlled
by, or is under common control with the proposed assignee or subtenant occupies
space in the Building, or is negotiating with Landlord to lease space in the
Building; (v) the proposed assignee or subtenant is disreputable; or (vi) the
use of the Premises or the Building by the proposed assignee or subtenant would,
in Landlord's reasonable judgment, impact the Building in a negative manner
including but not limited to significantly increasing the pedestrian traffic in
and out of the Building or requiring any alterations to the Building to comply
with applicable laws; (vii) the subject space is not regular in shape with
appropriate means of ingress and egress suitable for normal renting purposes;
(viii) the transferee is a government (or agency or instrumentality thereof) or
(ix) Tenant has failed to cure a default at the time Tenant requests consent to
the proposed Transfer.
14.05 ADDITIONAL RENT. If Landlord consents to any such assignment
or subletting, one-half (1/2) of the amount by which all sums or other economic
consideration received by Tenant in connection with such assignment or
subletting, whether denominated as rental, exceeds, in the aggregate, the total
sum which Tenant is obligated to pay Landlord under this Lease (prorated to
reflect obligations allocable to less than all of the Premises under a sublease)
shall be paid to Landlord promptly after receipt as additional Rent under the
Lease without affecting or reducing any other obligation of Tenant hereunder.
14.06 LANDLORD'S COSTS. If Tenant shall Transfer this Lease or all
or any part of the Premises or shall request the consent of Landlord to any
Transfer, Tenant shall pay to Landlord as additional rent Landlord's costs
related thereto, including Landlord's reasonable attorneys' fees and a minimum
fee to Landlord of Five Hundred Dollars ($500.00).
14.07 CONTINUING LIABILITY OF TENANT. Notwithstanding any Transfer,
including an assignment or sublease to an Affiliate, Tenant shall remain as
fully and primarily liable for the payment of Rent and for the performance of
all other obligations of Tenant contained in this Lease to the same extent as if
the Transfer had not occurred; provided, however, that any act or omission of
any transferee, other than Landlord, that violates the terms of this Lease shall
be deemed a violation of this Lease by Tenant.
14.08 NON-WAIVER. The consent by Landlord to any Transfer shall not
relieve Tenant, or any person claiming through or by Tenant, of the obligation
to obtain the consent of Landlord, pursuant to this Article XIV, to any further
Transfer. In the event of an assignment or subletting, Landlord may collect rent
from the assignee or the subtenant without waiving any rights hereunder and
collection of the rent from a person other than Tenant shall not be deemed a
waiver of any of Landlord's rights under this Article XIV, an acceptance of
assignee or subtenant as Tenant, or a release of Tenant from the performance of
Tenant's obligations under this Lease. If Tenant shall default under this Lease
and fail to cure within the time permitted, Landlord is irrevocably authorized,
as Tenant's agent and attorney-in-fact, to direct any transferee to make all
payments under or in connection with the Transfer directly to Landlord (which
Landlord shall apply towards Tenant's obligations under this Lease) until such
default is cured.
ARTICLE XV - DEFAULT AND REMEDIES
15.01 EVENTS OF DEFAULT BY TENANT. The occurrence of any of the
following shall constitute a material default and breach of this Lease by
Tenant:
(A) The failure by Tenant to pay Base Rent or make any other
payment required to be made by Tenant hereunder as and when due.
(B) The abandonment of the Premises by Tenant or the vacation
of the Premises by Tenant for fourteen (14) consecutive days (without the
payment of Rent).
(C) The making by Tenant of any assignment of this Lease or
any sublease of all or part of the Premises, except as expressly permitted under
Article XIV of this Lease.
(D) The failure by Tenant to observe or perform any other
provision of this Lease to be observed or performed by Tenant, other than those
described in Sections 15.01(A), 15.01(B) or 15.01 (C) above, if such failure
continues for ten (10) days after written notice thereof by Landlord to Tenant;
provided, however, that if the nature of the default is such that it cannot be
cured within the ten (10) day period, no default shall exist if Tenant commences
the curing of the default within the ten (10) day period and thereafter
diligently prosecutes the same to completion. The ten (10) day notice described
herein shall be in lieu of, and not in addition to, any notice required under
Section 1161 of the California Civil Code of Procedure or any other law now or
hereafter in effect requiring that notice of default be given prior to the
commencement of an unlawful detainer or other legal proceeding.
(E) The making by Tenant or its Guarantor of any general
assignment for the benefit of creditors, the filing by or against Tenant or its
Guarantor of a petition under any federal or state bankruptcy or insolvency laws
(unless, in the case of a petition filed against Tenant or its Guarantor the
same is dismissed within thirty (30) days after filing); the appointment of a
trustee or receiver to take possession of substantially all of Tenant's assets
at the Premises or Tenant's interest in this Lease or the Premises, when
possession is not restored to Tenant within
13
thirty (30) days; or the attachment, execution or other seizure of substantially
all of Tenant's assets located at the Premises or Tenant's interest in this
Lease or the Premises, if such seizure is not discharged within thirty (30)
days.
(F) Any material misrepresentation herein, or material
misrepresentation or omission in any financial statements or other materials
provided by Tenant or any Guarantor in connection with negotiating or entering
into this Lease or in connection with any Transfer under Section 14.01.
15.02 LANDLORD'S RIGHT TO TERMINATE UPON TENANT DEFAULT. In the
event of any default by Tenant as provided in Section 15.01 above, Landlord
shall have the right to terminate this Lease and recover possession of the
Premises by giving written notice to Tenant of Landlord's election to terminate
this Lease, in which event Landlord shall be entitled to receive from Tenant:
(A) The worth at the time of award of any unpaid Rent which
had been earned at the time of such termination; plus
(B) The worth at the time of award of the amount by which the
unpaid Rent which would have been earned after termination until the time of
award exceeds the amount of such rental loss Tenant proves could have been
reasonably avoided; plus
(C) The worth at the time of award of the amount by which the
unpaid Rent for the balance of the term after the time of award exceeds the
amount of such rental loss that Tenant proves could be reasonably avoided; plus
(D) Any other amount necessary to compensate Landlord for all
the detriment proximately caused by Tenant's failure to perform its obligations
under this Lease or which in the ordinary course of things would be likely to
result therefrom; and
(E) At Landlord's election, such other amounts in addition to
or in lieu of the foregoing as may be permitted from time to time by applicable
law.
As used in subparagraphs (A) and (B) above, "worth at the time of
award" shall be computed by allowing interest on such amounts at the then
highest lawful rate of interest, but in no event to exceed one percent (1%) per
annum plus the rate established by the Federal Reserve Bank of San Francisco on
advances made to member banks under Sections of the Federal Reserve Act
("discount rate") prevailing at the time of the award. As used in paragraph (C)
above, "worth at the time of award" shall be computed by discounting such amount
by (i) the discount rate of the Federal Reserve Bank of San Francisco prevailing
at the time of award plus (ii) one percent (1%).
15.03 MITIGATION OF DAMAGES. If Landlord terminates this Lease or
Tenant's right to possession of the Premises, Landlord shall have no obligation
to mitigate Landlord's damages except to the extent required by applicable law.
If Landlord has not terminated this Lease or Tenant's right to possession of the
Premises, Landlord shall have no obligation to mitigate under any circumstances
and may permit the Premises to remain vacant or abandoned. If Landlord is
required to mitigate damages as provided herein: (i) Landlord shall be required
only to use reasonable efforts to mitigate, which shall not exceed such efforts
as Landlord generally uses to lease other space in the Building, (ii) Landlord
will not be deemed to have failed to mitigate if Landlord or its affiliates
lease any other portions of the Building or other projects owned by Landlord or
its affiliates in the same geographic area, before reletting all or any portion
of the Premises, and (iii) any failure to mitigate as described herein with
respect to any period of time shall only reduce the Rent and other amounts to
which Landlord is entitled hereunder by the reasonable rental value of the
Premises during such period. In recognition that the value of the Building
depends on the rental rates and terms of leases therein, Landlord's rejection of
a prospective replacement tenant based on an offer of rentals below Landlord's
published rates for new leases of comparable space at the Building at the time
in question, or at Landlord's option, below the rates provided in this Lease, or
containing terms less favorable than those contained herein, shall not give rise
to a claim by Tenant that Landlord failed to mitigate Landlord's damages.
15.04 LANDLORD'S RIGHT TO CONTINUE LEASE UPON TENANT DEFAULT. In the
event of a default of this Lease and abandonment of the Premises by Tenant, if
Landlord does not elect to terminate this Lease as provided in Section 15.02
above, Landlord may from time to time, without terminating this Lease, enforce
all of its rights and remedies under this Lease. Without limiting the foregoing,
Landlord has the remedy described in California Civil Code Section 1951.4
(Landlord may continue this Lease in effect after Tenant's default and
abandonment and recover Rent as it becomes due, if Tenant has the right to
Transfer, subject to reasonable limitations). In the event Landlord re-lets the
Premises, to the fullest extent permitted by law, the proceeds of any reletting
shall be applied first to pay to Landlord all costs and expenses of such
reletting (including without limitation, costs and expenses of retaking or
repossessing the Premises, removing persons and property therefrom, securing new
tenants, including expenses for redecoration, alterations and other costs in
connection with preparing the Premises for the new tenant, and if Landlord shall
maintain and operate the Premises, the costs thereof) and receivers' fees
incurred in connection with the appointment of and performance by a receiver to
protect the Premises and Landlord's interest under this Lease and any necessary
or reasonable alterations; second, to the payment of any indebtedness of Tenant
to Landlord other than Rent due and unpaid hereunder; third, to the payment of
Rent due and unpaid hereunder; and the residue, if any, shall be held by
Landlord and applied in payment of other or future obligations of Tenant to
Landlord as the same may become due and payable, and Tenant shall not be
entitled to receive any portion of such revenue.
14
15.05 RIGHT OF LANDLORD TO PERFORM. All covenants and agreements to
be performed by Tenant under this Lease shall be performed by Tenant at Tenant's
sole cost and expense. If Tenant shall fail to pay any sum of money, other than
Rent, required to be paid by it hereunder or shall fail to perform any other act
on its part to be performed hereunder, Landlord may, but shall not be obligated
to, make any payment or perform any such other act on Tenant's part to be made
or performed, without waiving or releasing Tenant of its obligations under this
Lease. Any sums so paid by Landlord and all necessary incidental costs, together
with interest thereon at the lesser of the maximum rate permitted by law if any
or twelve percent (12%) per annum from the date of such payment, shall be
payable to Landlord as additional rent on demand and Landlord shall have the
same rights and remedies in the event of nonpayment as in the case of default by
Tenant in the payment of Rent.
15.06 DEFAULT UNDER OTHER LEASES. If the term of any lease, other
than this Lease, heretofore or hereafter made by Tenant for any office space in
the Building shall be terminated or terminable after the making of this Lease
because of any default by Tenant under such other lease, such fact shall empower
Landlord, at Landlord's sole option, to terminate this Lease by notice to Tenant
or to exercise any of the rights or remedies set forth in Section 15.02.
15.07 NON-WAIVER. Nothing in this Article shall be deemed to affect
Landlord's rights to indemnification for liability or liabilities arising prior
to termination of this Lease or Tenant's right to possession of the Premises for
personal injury or property damages under the indemnification clause or clauses
contained in this Lease. No acceptance by Landlord of a lesser sum than the Rent
then due shall be deemed to be other than on account of the earliest installment
of such rent due, 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 installment or pursue any other
remedy in the Lease provided. The delivery of keys to any employee of Landlord
or to Landlord's agent or any employee thereof shall not operate as a
termination of this Lease or a surrender of the Premises.
15.08 CUMULATIVE REMEDIES. The specific remedies to which Landlord
may resort under the terms of the Lease are cumulative and are not intended to
be exclusive of any other remedies or means of redress to which it may be
lawfully entitled in case of any breach or threatened breach by Tenant of any
provisions of the Lease. In addition to the other remedies provided in the
Lease, Landlord shall be entitled to a restraint by injunction of the violation
or attempted or threatened violation of any of the covenants, conditions or
provisions of the Lease or to a decree compelling specific performance of any
such covenants, conditions or provisions.
15.09 DEFAULT BY LANDLORD. Landlord's failure to perform or observe
any of its obligations under this Lease shall constitute a default by Landlord
under this Lease only if such failure shall continue for a period of thirty (30)
days (or the additional time, if any, that is reasonably necessary to promptly
and diligently cure the failure) after Landlord receives written notice from
Tenant specifying the default. The notice shall give in reasonable detail the
nature and extent of the failure and shall identify the Lease provision(s)
containing the obligation(s). If Landlord shall default in the performance of
any of its obligations under this Lease (after notice and opportunity to cure as
provided herein), Tenant may pursue any remedies available to it under the law
and this Lease, except that, in no event, shall Landlord be liable for punitive
damages, lost profits, business interruption, speculative, consequential or
other such damages. In recognition that Landlord must receive timely payments of
Rent and operate the Building, Tenant shall have no right of self-help to
perform repairs or any other obligation of Landlord, and shall have no right to
withhold, set-off, or xxxxx Rent.
ARTICLE XVI - ATTORNEYS' FEES: COSTS OF SUIT
16.01 ATTORNEYS FEES. If either Landlord or Tenant shall commence
any action or other proceeding against the other arising out of, or relating to,
this Lease or the Premises, the prevailing party shall be entitled to recover
from the losing party, in addition to any other relief, its actual attorneys'
fees irrespective of whether or not the action or other proceeding is prosecuted
to judgment and irrespective of any court schedule of reasonable attorneys'
fees. In addition, Tenant shall reimburse Landlord, upon demand, for all
reasonable attorneys' fees incurred in collecting Rent, resolving any actual
default by Tenant, securing indemnification as provided in Article X and
paragraphs, 16.02, 23.01 and 25.01 herein or otherwise seeking enforcement
against Tenant, its sublessees and assigns, of Tenant's obligations under this
Lease.
16.02 INDEMNIFICATION. Should Landlord be made a party to any
litigation instituted by Tenant against a party other than Landlord, or by a
third party against Tenant, Tenant shall indemnify, hold harmless and defend
Landlord from any and all loss, cost, liability, damage or expense incurred by
Landlord, including attorneys' fees, in connection with the litigation.
ARTICLE XVII - SUBORDINATION AND ATTORNMENT
17.01 SUBORDINATION. This Lease, and the rights of Tenant hereunder,
are and shall be subject and subordinate to the interest of (i) all present and
future ground leases and master leases of all or any part of the Building; (ii)
present and future mortgages and deeds of trust encumbering all or any part of
the Building; (iii) all past and future advances made under any such mortgages
or deeds of trust; and (iv) all renewals, modifications, replacements and
extensions of any such ground leases, master leases, mortgages and deeds of
trust; provided,
15
however, that any lessor under any such ground lease or master lease or any
mortgagee or beneficiary under any such mortgage or deed of trust (any such
lessor, mortgagee or beneficiary is hereinafter referred to as a "Mortgagee")
shall have the right to elect, by written notice given to Tenant, to have this
Lease made superior in whole or in part to any such ground lease, master lease,
mortgage or deed of trust (or subject and subordinate to such ground lease,
master lease, mortgage or deed of trust but superior to any junior mortgage or
junior deed of trust). Upon demand, Tenant shall execute, acknowledge and
deliver any instruments reasonably requested by Landlord or any such Mortgagee
to effect the purposes of this Section 17.01. Such instruments may contain,
among other things, provisions to the effect that such Mortgagee (hereafter, for
the purposes of this Section 17.01, a "Successor Landlord") shall (i) not be
liable for any act or omission of Landlord or its predecessors, if any, prior to
the date of such Successor Landlord's succession to Landlord's interest under
this Lease; (ii) not be subject to any offsets or defenses which Tenant might
have been able to assert against Landlord or its predecessors, if any, prior to
the date of such Successor Landlord's succession to Landlord's interest under
this Lease; (iii) not be liable for the return of any security deposit under the
Lease unless the same shall have actually been deposited with such Successor
Landlord; (iv) be entitled to receive notice of any Landlord default under this
Lease plus a reasonable opportunity to cure such default prior to Tenant having
any right or ability to terminate this Lease as a result of such Landlord
default; (v) not be bound by any rent or additional rent which Tenant might have
paid for more than the current month to Landlord; (vi) not be bound by any
amendment or modification of the Lease or any cancellation or surrender of the
same made without Successor Landlord's prior written consent; (vii) not be bound
by any obligation to make any payment to Tenant which was required to be made
prior to the time such Successor Landlord succeeded to Landlord's interest and
(viii) not be bound by any obligation under the Lease to perform any work or to
make any improvements to the demised Premises. Any obligations of any Successor
Landlord under its respective lease shall be non-recourse as to any assets of
such Successor Landlord other than its interest in the Premises and
improvements.
17.02 ATTORNMENT. If the interests of Landlord under the Lease shall
be transferred to any superior Mortgagee or other purchaser or person taking
title to the Building by reason of the termination of any superior lease or the
foreclosure of any superior mortgage or deed of trust, Tenant shall be bound to
such Successor Landlord under all of the terms, covenants and conditions of the
Lease for the balance of the term thereof remaining and any extensions or
renewals thereof which may be effected in accordance with any option therefor in
the Lease, with the same force and effect as if Successor Landlord were the
landlord under the Lease, and Tenant shall attorn to and recognize as Tenant's
landlord under this Lease such Successor Landlord, as its landlord, said
attornment to be effective and self-operative without the execution of any
further instruments upon Successor Landlord's succeeding to the interest of
Landlord under the Lease. Tenant shall, upon demand, execute any documents
reasonably requested by any such person to evidence the attornment described in
this Section 17.02. Concurrently, upon written request from Tenant, and provided
Tenant is not in default under this Lease, Landlord agrees to use diligent,
commercially reasonable efforts to obtain a Non-Disturbance Agreement from the
Successor Landlord. Such Non-Disturbance Agreement may be embodied in the
Mortgagee's customary form of Subordination and Non-Disturbance Agreement. If,
after exerting diligent, commercially reasonable efforts, Landlord is unable to
obtain a Non-Disturbance Agreement from any such Mortgagee, Landlord shall have
no further obligation to Tenant with respect thereto.
17.03 MORTGAGEE PROTECTION. Tenant agrees to give any Mortgagee, by
registered or certified mail, a copy of any notice of default served upon
Landlord by Tenant, provided that prior to such notice Tenant has been notified
in writing (by way of service on Tenant of a copy of Assignment of Rents and
Leases, or otherwise) of the address of such Mortgagee (hereafter the "Notified
Party"). Tenant further agrees that if Landlord shall have failed to cure such
default within twenty (20) days after such notice to Landlord (or if such
default cannot be cured or corrected within that time, then such additional time
as may be necessary if Landlord has commenced within such twenty (20) days and
is diligently pursuing the remedies or steps necessary to cure or correct such
default), then the Notified Party shall have an additional thirty (30) days
within which to cure or correct such default (or if such default cannot be cured
or corrected within that time, then such additional time as may be necessary if
the Notified Party has commenced within such thirty (30) days and is diligently
pursuing the remedies or steps necessary to cure or correct such default). Until
the time allowed, as aforesaid, for the Notified Party to cure such default has
expired without cure, Tenant shall have no right to, and shall not, terminate
this Lease on account of Landlord's default.
ARTICLE XVIII - QUIET ENJOYMENT
18.01 Provided that Tenant is not in material default beyond any
applicable cure period hereunder, Tenant shall have and peaceably enjoy the
Premises during the Lease Term free of claims by or through Landlord, subject to
all of the terms and conditions contained in this Lease.
ARTICLE XIX - RULES AND REGULATIONS
19.01 The Rules and Regulations attached hereto as Exhibit C are
hereby incorporated by reference herein and made a part hereof. Tenant shall
abide by, and faithfully observe and comply with the Rules and Regulations and
any reasonable and non-discriminatory amendments, modifications and/or additions
thereto as may hereafter be adopted and published by written notice to tenants
by Landlord for the safety, care, security, good order and/or cleanliness of the
Premises and/or the Building. Landlord shall not be liable to Tenant for any
violation of such rules and regulations by any other tenant or occupant of the
Building.
16
ARTICLE XX - ESTOPPEL CERTIFICATES
20.01 Tenant agrees at any time and from time to time upon not less
than ten (10) business days' prior written notice from Landlord to execute,
acknowledge and deliver to Landlord a statement in writing addressed and
certifying to Landlord, to any current or prospective Mortgagee or any assignee
thereof, to any prospective purchaser of the land, improvements or both
comprising the Building, and to any other party designated by Landlord, that
this Lease is unmodified and in full force and effect (of if there have been
modifications, that the same is in full force and effect as modified and stating
the modifications); that Tenant has accepted possession of the Premises, which
are acceptable in all respects, and that any improvements required by the terms
of this Lease to be made by Landlord have been completed to the satisfaction of
Tenant; that Tenant is in full occupancy of the Premises; that no rent has been
paid more than thirty (30) days in advance; that the first month's Base Rent has
been paid; that Tenant is entitled to no free rent or other concessions except
as stated in this Lease; that Tenant has not been notified of any previous
assignment of Landlord's or any predecessor landlord's interest under this
Lease; the dates to which Base Rent, additional rental and other charges have
been paid; that Tenant, as of the date of such certificate, has no charge, lien
or claim of setoff under this Lease or otherwise against Base Rent, additional
rental or other charges due or to become due under this Lease; that Landlord is
not in default in performance of any covenant, agreement or condition contained
in this Lease; or any other matter relating to this Lease or the Premises or, if
so, specifying each such default. If there is a Guaranty under this Lease, said
Guarantor shall confirm the validity of the Guaranty by joining in the execution
of the Estoppel Certificate or other documents so requested by Landlord or
Mortgagee. In addition, in the event that such certificate is being given to any
Mortgagee, such statement may contain any other provisions customarily required
by such Mortgagee including, without limitation, an agreement on the part of
Tenant to furnish to such Mortgagee, written notice of any Landlord default and
a reasonable opportunity for such Mortgagee to cure such default prior to Tenant
being able to terminate this Lease. Any such statement delivered pursuant to
this Section may be relied upon by Landlord or any Mortgagee, or prospective
purchaser to whom it is addressed and such statement, if required by its
addressee, may so specifically state. If Tenant does not execute, acknowledge
and deliver to Landlord the statement as and when required herein, Landlord is
hereby granted an irrevocable power-of-attorney, coupled with an interest, to
execute such statement on Tenant's behalf, which statement shall be binding on
Tenant to the same extent as if executed by Tenant.
ARTICLE XXI - ENTRY BY LANDLORD
21.01 Landlord may enter the Premises at all reasonable times to:
inspect the same: exhibit the same to prospective purchasers, Mortgagees or
tenants: determine whether Tenant is complying with all of its obligations under
this Lease; supply janitorial and other services to be provided by Landlord to
Tenant under this Lease; post notices of non-responsibility; and make repairs or
improvements in or to the Building or the Premises; provided, however, that all
such work shall be done as promptly as reasonably possible and so as to cause as
little interference to Tenant as reasonably possible. Tenant hereby waives any
claim for damages for any injury or inconvenience to, or interference with,
Tenant's business, any loss of occupancy or quiet enjoyment of the Premises or
any other loss on or about the Premises (excluding Tenant's vaults, safes and
similar areas designated by Tenant in writing in advance), and Landlord shall
have the right to use any and all means by which Landlord may deem proper to
open such doors to obtain entry to the Premises, and any entry to the Premises
obtained by Landlord by any such means, or otherwise, shall not under any
circumstances be deemed or construed to be a forcible or unlawful entry into or
a detainer of the Premises or an eviction, actual or constructive, of Tenant
from any part of the Premises. Such entry by Landlord shall not act as a
termination of Tenant's duties under this Lease. If Landlord shall be required
to obtain entry by means other than a key provided by Tenant, the cost of such
entry shall by payable by Tenant to Landlord as additional rent.
ARTICLE XXII
LANDLORD'S LEASE UNDERTAKINGS-EXCULPATION FROM PERSONAL LIABILITY;
TRANSFER OF LANDLORD'S INTEREST
22.01 LANDLORD'S LEASE UNDERTAKINGS. Notwithstanding anything to the
contrary contained in this Lease or in any exhibits, Riders or addenda hereto
attached (collectively the "Lease Documents"), it is expressly understood and
agreed by and between the parties hereto that: (a) the recourse of Tenant or its
successors or assigns against Landlord with respect to the alleged breach by or
on the part of Landlord of any representation, warranty, covenant, undertaking
or agreement contained in any of the Lease Documents or otherwise arising out of
Tenant's use of the Premises or the Building (collectively, "Landlord's Lease
Undertakings") shall extend only to Landlord's interest in the real estate of
which the Premises demised under the Lease Documents are a part ("Landlord's
Real Estate") and not to any other assets of Landlord or its officers, directors
or shareholders; and (b) except to the extent of Landlord's interest in
Landlord's Real Estate, no personal liability or personal responsibility of any
sort with respect to any of Landlord's Lease Undertakings or any alleged breach
thereof is assumed by, or shall at any time be asserted or enforceable against,
Landlord, or against any of their respective directors, officers, employees,
agents, constituent partners, beneficiaries, trustees or representatives.
22.02 TRANSFER OF LANDLORD'S INTEREST. In the event of any transfer
of Landlord's interest in the Building, Landlord shall be automatically freed
and relieved from all applicable liability with respect to performance of any
covenant or obligation on the part of Landlord, provided any deposits or advance
rents held by Landlord are turned over to the grantee and said grantee expressly
assumes, subject to the limitations of this Section
17
22, all the terms, covenants and conditions of this Lease to be performed on the
part of Landlord, it being intended hereby that the covenants and obligations
contained in this Lease on the part of Landlord shall, subject to all the
provisions of this Section 22, be binding on Landlord, its successors and
assigns, only during their respective periods of ownership.
ARTICLE XXIII - HOLDOVER TENANCY
23.01 If Tenant holds possession of the Premises after the
expiration or termination of the Lease Term, by lapse of time or otherwise,
Tenant shall become a tenant at sufferance upon all of the terms contained
herein, except as to Lease Term and Rent. During such holdover period, Tenant
shall pay to Landlord a monthly rental equivalent to Two hundred percent (200%)
of the Rent Payable by Tenant to Landlord with respect to the last month of the
Lease Term. The monthly rent payable for such holdover period shall in no event
be construed as a penalty or as liquidated damages for such retention of
possession. Without limiting the foregoing, Tenant hereby agrees to indemnify,
defend and hold harmless Landlord, its beneficiary, and their respective agents,
contractors and employees, from and against any and all claims, liabilities,
actions, losses, damages (including without limitation, direct, indirect,
incidental and consequential) and expenses (including, without limitation, court
costs and reasonable attorneys' fees) asserted against or sustained by any such
party and arising from or by reason of such retention of possession, which
obligations shall survive the expiration or termination of the Lease Term.
ARTICLE XXIV - NOTICES
24.01 All notices which Landlord or Tenant may be required, or may
desire, to serve on the other may be served, as an alternative to personal
service, by mailing the same by registered or certified mail, postage prepaid,
addressed to Landlord at the address for Landlord set forth in Section 1.12
above and to Tenant at the address for Tenant set forth in Section 1.13 above,
or from and after the Commencement Date, to Tenant at the Premises wether or not
Tenant has departed from, abandoned or vacated the Premises, or addressed to
such other address or addresses as either Landlord or Tenant may from time to
time designate to the other in writing. Any notice shall be deemed to have been
served at the time the same was posted.
ARTICLE XXV - BROKERS
25.01 The parties recognize as the broker(s) who procured this Lease
the firm(s) specified in Section 1.14 and agree that Landlord shall be solely
responsible for the payment of any brokerage commissions to said broker(s), and
that Tenant shall have no responsibility therefor unless written provision to
the contrary has been made a part of this Lease. If Tenant has dealt with any
other person or real estate broker in respect to leasing, subleasing or renting
space in the Building, Tenant shall be solely responsible for the payment of any
fee due said person or firm and Tenant shall protect, indemnify, hold harmless
and defend Landlord from any liability in respect thereto.
ARTICLE XXVI - ELECTRONIC SERVICES
26.01 TENANT'S LINES. Tenant may, in a manner consistent with the
provisions and requirements of this Lease, install, maintain, replace, remove or
use any communications or computer or other electronic service wires, cables and
related devices (collectively the "Lines") at the Building in or serving the
Premises, provided: (a) Tenant shall obtain Landlord's prior written consent,
which consent may be conditioned as required by Landlord, (b) if Tenant at any
time uses any equipment that may create an electromagnetic field exceeding the
normal insulation ratings of ordinary twisted pair riser cable or cause
radiation higher than normal background radiation, the Lines therefor (including
riser cables) shall be appropriately insulated to prevent such excessive
electromagnetic fields or radiation, and (c) Tenant shall pay all costs in
connection therewith. Landlord reserves the right to require that Tenant remove
any Lines which are installed in violation of these provisions. Tenant shall
not, without the prior written consent of Landlord in each instance, grant to
any third party a security interest or lien in or on the Lines, and any such
security interest or lien granted without Landlord's written consent shall be
null and void.
26.02 DEFINITION OF ELECTRONIC SERVICES. As used herein "Electronic
Services Provider" means a business which provides telephone, telegraph, telex,
video, other telecommunications or other services which permit Tenant to receive
or transmit information by the use of electronics and which require the use of
wires, cables, antennas or similar devices in or on the Building. The services
of Electronic Services Providers are sometimes referred to herein as "Electronic
Services."
26.03 NO RIGHT TO SPECIFIC SERVICES. Landlord shall have no
obligation (i) to install any Electronic Services equipment or facilities, (ii)
to make available to Tenant the services of any particular Electronic Services
Provider, (iii) to allow any particular Electronic Services Provider access to
the Building, (iv) to continue to grant access to an Electronic Services
Provider once such provider has been given access to the Building. Landlord may
(but shall not have the obligation to): (x) install new Lines at the property,
(y) create additional space for Lines at the property, and (z) adopt reasonable
and uniform rules and regulations with respect to Lines.
18
26.04 LIMITATION OF LANDLORD'S RESPONSIBILITY. Tenant acknowledges
and agrees that all Electronic Services desired by Tenant shall be ordered and
utilized at the sole expense of Tenant. Unless Landlord otherwise requests or
consents in writing, all of Tenant's Electronic Services equipment shall be and
remain solely in the Tenant's premises and the telephone closet(s) on the
floor(s) on which the Tenant's premises is located, in accordance with rules and
regulations adopted by Landlord from time to time. Unless otherwise specifically
agreed to in writing, Landlord shall have no responsibility for the maintenance
of Tenant's Electronic Services equipment, including Lines; nor for any Lines or
other infrastructure to which Tenant's Electronic Services equipment may be
connected. Tenant agrees that, to the extent any Electronic Services are
interrupted, curtailed or discontinued, Landlord shall have no obligation or
liability with respect thereto and it shall be the sole obligation of Tenant at
its own expense to obtain substitute service. Except to the extent arising from
the intentional or grossly negligent acts of Landlord or Landlord's agents or
employees, Landlord shall have no liability for damages arising from, and
Landlord does not warrant that Tenant's use of any Lines will be free from the
following (collectively called "Line Problems"): (x) any eavesdropping or
wire-tapping by unauthorized parties, (y) any failure of any Lines to satisfy
Tenant's requirements, or (z) any shortages, failures, variations,
interruptions, disconnection's, loss or damage caused by the installation,
maintenance, replacement, use or removal of Lines by or for other tenants or
occupants at the property. Under no circumstances shall any Line Problems be
deemed an actual or constructive eviction of Tenant, render Landlord liable to
Tenant for abatement of Rent, or relieve Tenant from performance of Tenant's
obligations under this Lease. Landlord in no event shall be liable for damages
by reason of loss of profits, business interruption or other consequential
damage arising from any Line Problems.
26.05 NECESSARY SERVICE INTERRUPTIONS. Landlord shall have the
right, upon reasonable prior notice to Tenant, to interrupt or turn off
Electronic Services facilities in the event of emergency or as necessary in
connection with maintenance, repairs or construction at the Building or
installation of Electronic Services equipment for other Tenants of the Building
or on account of violation by the Electronic Services Provider or owner of the
Electronic Services equipment of any obligation to Landlord or in the event that
Tenant's use of the Electronic Services infrastructure of the Building
materially interferes with the Electronic Services of other tenants of the
Building.
26.06 REMOVAL OF EQUIPMENT, WIRING AND OTHER FACILITIES. Any and all
Electronic Services equipment installed in the Tenant's Premises or elsewhere in
the Building by or on behalf of Tenant, including Lines, or other facilities for
Electronic Services reception or transmittal, shall be removed prior to the
expiration or earlier termination of the Lease term, by Tenant at its sole cost
or, at Landlord's election, by Landlord at Tenant's sole cost, with the cost
thereof to be paid as additional rent. Landlord shall have the right, however,
upon written notice to Tenant given no later than thirty (30) days prior to the
expiration or earlier termination of the Lease term (except that the notice
period shall extend to thirty (30) days beyond the date of termination of the
Lease if it is terminated by either party due to a default by the other), to
require Tenant to abandon and leave in place, without additional payment to
Tenant or credit against rent, any and all Electronic Services Lines and related
infrastructure, or selected components thereof, whether located in the Tenant's
premises or elsewhere in the Building.
26.07 NEW PROVIDER INSTALLATIONS. In the event that Tenant wishes at
any time to utilize the services of an Electronic Services Provider whose
equipment is not then servicing the Building, no such Electronic Services
Provider shall be permitted to install its Lines or other equipment within the
Building without first securing the prior written approval of the Landlord.
Landlord's approval shall not be deemed any kind of warranty or representation
by Landlord, including, without limitation, any warranty or representation as to
the suitability, competence, or financial strength of the Electronic Services
Provider. Without limitation of the foregoing standard, unless all of the
following conditions are satisfied to Landlord's satisfaction, it shall be
reasonable for Landlord to refuse to give its approval: (i) Landlord shall incur
no current expense or risk or future expense whatsoever with respect to any
aspect of the Electronic Services Provider's provision of its Electronic
Services, including without limitation, the costs of installation, materials and
services; (ii) prior to commencement of any work in or about the Building by the
Electronic Services Provider, the Electronic Services Provider shall supply
Landlord with such written indemnities, insurance, financial statements, and
such other items as Landlord reasonably determines to be necessary to protect
its financial interests and the interests of the Building relating to the
proposed activities of the Electronic Services Provider; (iii) the Electronic
Services Provider agrees to abide by such rules and regulations, Building and
other codes, job site rules and such other requirements as are reasonably
determined by Landlord to be necessary to protect the interests of the Building,
the Tenants in the Building and Landlord, in the same or similar manner as
Landlord has the right to protect itself and the Building with respect to
proposed alterations as described in Article IX of this Lease; (iv) Landlord
reasonably determines that, considering other potential uses for space in the
Building, there is sufficient space in the Building for the placement of all of
the provider's equipment, conduit, Lines and other materials; (v) the Electronic
Services Provider agrees to abide by Landlord's requirements, if any, that
provider use existing Building conduits and pipes or use Building contractors
(or other contractors approved by Landlord); (vi) Landlord receives from the
Electronic Services Provider such compensation as is reasonably determined by
Landlord to compensate it for space, used in the Building for the storage and
maintenance of the Electronic Services Provider's equipment, for the fair market
value of a Electronic Services Provider's access to the Building, for the use of
common or core space within the Building and the costs which may reasonably be
expected to be incurred by Landlord; (vii) the provider agrees to deliver to
Landlord detailed "as built" plans immediately after the installation of the
provider's equipment is complete; and (viii) all of the foregoing matters are
documented in a written license agreement between Landlord and the provider, the
form and content of which is reasonably satisfactory to Landlord."
26.08 LIMIT OF DEFAULT OR BREACH. Notwithstanding any provision of
the proceeding paragraphs to the contrary, the refusal of Landlord to grant its
approval to any prospective Electronic Services Provider shall not be deemed a
default or breach by Landlord of its obligation under this Lease unless and
until Landlord is adjudicated to
19
have acted recklessly or maliciously with respect to Tenant's request for
approval, and in that event, Tenant shall still have no right to terminate the
Lease or claim an entitlement to rent abatement, but may as Tenant's sole and
exclusive recourse seek a judicial order of specific performance compelling
Landlord to grant its approval as to the prospective provider in question. The
provisions of this paragraph may be enforced solely by Tenant and Landlord, are
not for the benefit of any other party, and specifically but without limitation,
no telephone or other Electronic Services Provider shall be deemed a third party
beneficiary of this Lease.
26.09 INSTALLATION AND USE OF WIRELESS TECHNOLOGIES. Tenant shall
not utilize any wireless Electronic Services equipment (other than usual and
customary cellular telephones), including antennae and satellite receiver
dishes, within the Tenant's premises, within the Building or attached to the
outside walls or roof of the Building, without Landlord's prior written consent.
Such consent may be conditioned in such a manner so as to protect Landlord's
financial interests and the interests of the Building, and the other tenants
therein, in a manner similar to the arrangements described in the immediately
preceding paragraphs.
26.10 LIMITATION OF LIABILITY FOR EQUIPMENT INTERFERENCE. In the
event that Electronic Services equipment, Lines and facilities or satellite and
antennae equipment of any type installed by or at the request of Tenant within
the Tenant's premises, on the roof, or elsewhere within or on the Building
causes interference to equipment used by another party. Tenant shall cease using
such equipment, Lines and facilities or satellite and antennae equipment until
the source of the interference is identified and eliminated and Tenant shall
assume all liability related to such interference. Tenant shall cooperate with
Landlord and other parties, to eliminate such interference promptly. In the
event that Tenant is unable to do so, Tenant will substitute alternative
equipment which remedies the situation. If such interference persists, Tenant
shall, at Landlord's sole discretion, remove such equipment.
ARTICLE XXVII - PARKING
27.01 During the term of this Lease, Tenant shall be entitled to
rent the number of Tenant's Parking Stalls, if any, described in Section 1.16 of
this Lease in the parking facilities located within the Building; provided,
however, that if Tenant does not rent all of the Tenant's Parking Stalls
allocated to Tenant pursuant to Section 1.16, any change in the number of
parking stalls actually rented by Tenant shall require not less than thirty (30)
days prior written notice to Landlord. Such parking shall be on a non-assigned
basis, and shall be at such rates and upon such other terms and conditions as
are published or posted from time to time by Landlord (or, at Landlord's option,
the operator or lessee of the parking facilities). Tenant's visitors shall have
the right to use the parking facilities, subject to availability and to the
rates, rules and regulations governing visitor parking from time to time adopted
by Landlord (or, at Landlord's option, the operator or master lessee of the
parking facilities).
ARTICLE XXVIII - MISCELLANEOUS
28.01 ENTIRE AGREEMENT. This Lease contains all of the agreements
and understandings relating to the leasing of the Premises and the obligations
of Landlord and Tenant in connection with such leasing. Landlord has not made,
and Tenant is not relying upon, any warranties, or representations, promises or
statements made by Landlord or any agent of Landlord, except as expressly set
forth herein. This Lease supersedes any and all prior agreements and
understandings between Landlord and Tenant and alone expresses the agreement of
the parties.
28.02 AMENDMENTS. This Lease shall not be amended, changed or
modified in any way unless in writing executed by Landlord and Tenant. Landlord
and Tenant shall not have waived or released any of its rights hereunder unless
in writing and executed by such party.
28.03 SUCCESSORS. Except as expressly provided herein, this Lease
and the obligations of Landlord and Tenant contained herein shall bind and
benefit the successors and assigns of the parties hereto.
28.04 FORCE MAJEURE. Landlord and Tenant shall incur no liability
to each other with respect to, and shall not be responsible for any failure to
perform, any of Landlord's obligations hereunder if such failure is caused by
any reason beyond the control of Landlord including, but not limited to, strike,
labor trouble, governmental rule, regulations, ordinance, statute or
interpretation, or by fire, earthquake, civil commotion, or failure or
disruption of utility services. The amount of time for Landlord to perform any
of Landlord's obligations shall be extended by the amount of time Landlord is
delayed in performing such obligation by reason of any force majeure occurrence
whether similar to or different from the foregoing types of occurrences.
28.05 SURVIVAL OF OBLIGATIONS. Any obligations of Tenant or Landlord
accruing prior to the expiration of the Lease shall survive the expiration or
earlier termination of the Lease, and each party shall promptly perform all such
obligations whether or not this Lease has expired or been terminated.
28.06 LIGHT AND AIR. No diminution or shutting off of any light, air
or view by any structure now or hereafter erected shall in any manner affect
this Lease or the obligations of Tenant hereunder, or increase any of the
obligations of Landlord hereunder.
28.07 GOVERNING LAW. This Lease shall be governed by, and construed
in accordance with, the laws of the State of California.
20
28.08 SEVERABILITY. In the event any provision of this Lease is
found to be unenforceable, the remainder of this Lease shall not be affected,
and any provision found to be invalid shall be enforceable to the extent
permitted by law. The parties agree that in the event two different
interpretations may be given to any provision hereunder, one of which will
render the provision unenforceable, and one of which will render the provision
enforceable, the interpretation rendering the provision enforceable shall be
adopted.
28.09 CAPTIONS. All captions, headings, titles, numerical references
and computer highlighting are for convenience only and shall have no effect on
the interpretation of this Lease.
28.10 INTERPRETATION. Tenant acknowledges that it has read and
reviewed this Lease and that it has had the opportunity to confer with counsel
in the negotiation of this Lease. Accordingly, this Lease shall be construed
neither for nor against Landlord or Tenant, but shall be given a fair and
reasonable interpretation in accordance with the meaning of its terms and the
intent of the parties.
28.11 INDEPENDENT COVENANTS. Each covenant, agreement, obligation or
other provision of this Lease to be performed by Tenant or Landlord are separate
and independent covenants of Tenant or Landlord, and not dependent on any other
provision of the Lease.
28.12 NUMBER AND GENDER. All terms and words used in this Lease,
regardless of the number or gender in which they are used, shall be deemed to
include the appropriate number and gender, as the context may require.
28.13 TIME IS OF THE ESSENCE. Time is of the essence of this Lease
and the performance of all obligations hereunder.
28.14 JOINT AND SEVERAL LIABILITY. If Tenant comprises more than one
person or entity, or if this Lease is guaranteed by any party, all such persons
shall be jointly and severally liable for payment of rents and the performance
of Tenant's obligations hereunder. If Tenant comprises more than one person or
entity and fewer than all of the persons or entities comprising Tenant abandon
the Premises, Landlord, at its sole option, may treat the abandonment by such
person or entities as an event of default and exercise with respect to such
persons the rights and remedies provided in Article XV without affecting the
right or obligations of the persons or entities comprising Tenant which have not
abandoned the property.
28.15 EXHIBITS. Exhibits A (Outline of Premises), B (Work Letter
Agreement), C (Rules and Regulations), D (Guaranty), E (Suite Acceptance
Letter), and F (Asbestos Notification), G (Parking Agreement) and Addendum I are
incorporated into this Lease by reference and made a part hereof.
28.16 OFFER TO LEASE. The submission of this Lease to Tenant or its
broker or other agent, does not constitute an offer to Tenant to lease the
Premises. This Lease shall have no force and effect until (a) it is executed and
delivered by Tenant to Landlord and (b) it is fully reviewed and executed by
Landlord; provided, however, that, upon execution of this Lease by Tenant and
delivery to Landlord, such execution and delivery by Tenant, shall, in
consideration of the time and expense incurred by Landlord in reviewing the
Lease and Tenant's credit, constitute an offer by Tenant to lease the Premises
upon the terms and conditions set forth herein (which offer to Lease shall be
irrevocable for twenty (20) business days following the date of delivery).
28.17 NO COUNTERCLAIM; CHOICE OF LAWS. It is mutually agreed that in
the event Landlord commences any summary proceeding for non-payment of Rent,
Tenant will not interpose any counterclaim of whatever nature or description in
any such proceeding. In addition, Tenant hereby submits to local jurisdiction in
the State of California and agrees that any action by Tenant against Landlord
shall be instituted in the State of California and that Landlord shall have
personal jurisdiction over Tenant for any action brought by Landlord against
Tenant in the State of California.
28.18 ELECTRICAL SERVICE TO THE PREMISES. Anything set forth in
Section 7.01 or elsewhere in this Lease to the contrary notwithstanding,
electricity to the Premises shall not be furnished by Landlord, but shall be
furnished by the approved electric utility company serving the Building.
Landlord shall permit Tenant to receive such service directly from such utility
company at Tenant's cost (except as otherwise provided herein) and shall permit
Landlord's wire and conduits, to the extent available, suitable and safely
capable, to be used for such purposes.
28.19 RIGHTS RESERVED BY LANDLORD. Landlord reserves the following
rights exercisable without notice (except as otherwise expressly provided to the
contrary in this Lease) and without being deemed an eviction or disturbance of
Tenant's use or possession of the Premises or giving rise to any claim for
set-off or abatement of Rent: (i) to change the name or street address of the
Building; (ii) to install, affix and maintain all signs on the exterior and/or
interior of the Building; (iii) to designate and/or approve prior to
installation, all types of signs, window shades, blinds, drapes, awnings or
other similar items, and all internal lighting that may be visible from the
exterior of the Premises and, notwithstanding the provisions of Article IX, the
design, arrangement, style, color and general appearance of the portion of the
Premises visible from the exterior, and contents thereof, including, without
limitation, furniture, fixtures, signs, art work, wall coverings, carpet and
decorations, and all changes, additions and removals thereto, shall, at all
times have the appearance of premises having the same type of exposure and used
for substantially the same purposes that are generally prevailing in comparable
office buildings in the area. Any violation of this provision shall be deemed a
material breach of this Lease; (iv) to change the arrangement of
21
entrances, doors, corridors, elevators and/or stairs in the Building, provided
no such change shall materially adversely affect access to the Premises; (v) to
grant any party the exclusive right to conduct any business or render any
service in the Building, provided such exclusive right shall not operate to
prohibit Tenant from using the Premises for the purposes permitted under this
Lease; (vi) to prohibit the placement of vending or dispensing machines of any
kind in or about the Premises other than for use by Tenant's employees; (vii) to
prohibit the placement of video or other electronic games in the Premises;
(viii) to have access for Landlord and other tenants of the Building to any mail
chutes and boxes located in or on the Premises according to the rules of the
United States Post Office and to discontinue any mail chute business in the
Building; (ix) to close the Building after normal business hours, except that
Tenant and its employees and invitees shall be entitled to admission at all
times under such rules and regulations as Landlord prescribes for security
purposes; (x) to install, operate and maintain security systems which monitor,
by close circuit television or otherwise, all persons entering or leaving the
Building; (xi) to install and maintain pipes, ducts, conduits, wires and
structural elements located in the Premises which serve other parts or other
tenants of the Building; and (xii) to retain at all times master to the Premises
for emergency use only.
IN WITNESS WHEREOF, the parties hereto have executed this lease as of
the date first above, written.
LANDLORD: TENANT:
3600 WILSHIRE, LLC, A California limited liability NARA BANK, National Association
company
By: JPB Partners, Inc., a California corporation
Its: Manager By: /s/ BON T. GOO
------------------------
By: /s/ Xxxxx X. Xxx
-------------------- Print Name: BON T. GOO
Xxxxx X. Xxx, M.D
Its: President Its: CFO & EVP
Date: 2/7/03 Date: 2/6/03
By: /s/ Xxxxxx Xxxxx
-------------------------
Print Name: Xxxxxx Xxxxx
Its: Director of Legal Affairs
Date: 2/6/03
22
EXHIBIT A
AS - BUILT PLAN
[BUILT PLAN]
23
EXHIBIT A-1
PREMISES FLOOR PLAN
[PREMISES FLOOR PLAN]
24
EXHIBIT A-2
PARKING PLAN
[PARKING PLAN]
EXHIBIT B
WORK LETTER AGREEMENT
[LANDLORD PERFORMS WORK]
[MINOR WORK ONLY]
THIS AGREEMENT made as of the 17th day of January, 2003, between 3600
WILSHIRE LLC, A California limited liability company, By JPB Partners, Inc., a
California corporation as ("Landlord") and NARA BANK, National Association,
("Tenant").
Reference is made to the Lease or tenant expansion agreement dated
January 17, 2003, (the "Lease") for premises known 0000 Xxxxxxxx Xxxxxxxxx,
Xxxxx 000X (xxx "Premises"), located in the property known as The Wilshire
Financial Tower also known as 0000 Xxxxxxxx Xxxxxxxxx, Xxx Xxxxxxx, XX 00000
(the "Property")
Landlord agrees to perform the following items of work (the "Work") in
the Premises
1. Tenant agrees to accept the Premises in "as is" condition
except for demising walls.
Landlord shall pay the full cost of the Work, except that Tenant shall
reimburse Landlord in the amount of $ none, within 10 days after Landlord
completes the Work.
If Landlord requires further choices by Tenant respecting the above
Work (e g, color choices respecting the above items), Tenant shall promptly
choose the same from such choices, if any, that Landlord makes available to
Tenant as "building standard." If any such further choices are required, the
parties agree that Tenant has heretofore been provided an opportunity to view
the available choices and Tenant agrees to make such choices by n/a ,
20 If Tenant fails to do so by such date, Landlord may make such choices for
Tenant
Landlord will use reasonable efforts to complete the Work by the
Commencement Date under the Lease or within 90 days thereafter, subject to
further delays beyond Landlord's reasonable control (as may be further described
in the Lease), provided, notwithstanding anything to the contrary contained in
the Lease, delays in the Work hereunder shall not postpone the commencement of
Rent under any circumstances whether the delay is caused by Tenant or Tenant's
contractors, agents or employees, or the delay is otherwise beyond Landlord's
reasonable control (as may be further described in the Lease), or for any other
reason whatsoever Tenant acknowledges that the Work may occur during normal
business hours while Tenant is in occupancy of the Premises and that no
interference to Tenant's business operations in, or use of, the Premises shall
entitle Tenant to any abatement of rent or any other concession, or give rise to
any claim against, or liability of, Landlord
Notwithstanding anything to the contrary contained in this Work Letter,
it is expressly understood and agreed by and between the parties hereto that (a)
The recourse of Tenant or its successors or assigns against Landlord with
respect to the alleged breach by or on the part of Landlord of any
representation, warranty, covenant, undertaking or agreement contained in this
Work Letter (collectively, "Landlord's Work Letter Undertakings") shall extend
only to Landlord's interest in the real estate of which the Premises demised
under the Lease are a part (hereinafter, "Landlord's Real Estate") and not to
any other assets of Landlord or its beneficiaries; and (b) Except to the extent
of Landlord's interest in Landlord's Real Estate, no personal liability or
personal responsibility of any sort with respect to any of Landlord's Work
Letter Undertakings or any alleged breach thereof is assumed by, or shall at any
time be asserted or enforceable against, Landlord, or against any of their
respective directors, officers, shareholders, employees, agents, constituent
partners, beneficiaries, trustees or representatives.
LANDLORD: TENANT:
3600 WILSHIRE, LLC, A California limited liability NARA BANK, National Association
company
By: JPB Partners, Inc., a California corporation
Its: Manager By: /s/ BON T. GOO
------------------------
By: /s/ Xxxxx X. Xxx
--------------------- Print Name: BON T. GOO
Xxxxx X. Xxx, M.D.
By: /s/ Xxxxx X. Xxx Its: CFO & EVP
Its: President
Date: 2/6/03
Date: 2/7/03
By: /s/ Xxxxxx Xxxxx
-------------------------
Print Name: Xxxxxx Xxxxx
Its: Director of Legal Affairs
Date: 2/6/03
25
EXHIBIT B
WORK LETTER AGREEMENT
[TENANT PERFORMS WORK]
This Work Letter Agreement ("Work Letter") is executed simultaneously
with that certain Lease dated JANUARY 17, 2003, (the "Lease") between 3600
WILSHIRE, LLC, a California limited liability company, c/o JPB PARTNERS, INC., a
California corporation, as ("Landlord") and NARA BANK, NATIONAL ASSOCIATION, as
("Tenant"), relating to demised premises ("Premises") at the building commonly
known as Wilshire Financial Tower or 0000 Xxxxxxxx Xxxxxxxxx, Xxx Xxxxxxx,
Xxxxxxxxxx 00000 (the "Building"), which Premises are more fully identified in
the Lease. Capitalized terms used herein, unless otherwise defined in this Work
Letter, shall have the respective meanings ascribed to them in the Lease.
For and in consideration of the agreement to lease the Premises and the
mutual covenants contained herein and in the Lease, Landlord and Tenant hereby
agree as follows:
1. WORK. Tenant, at its sole cost and expense, shall perform, or cause to
be performed, the work (the "Work") in the Premises provided for in the Approved
Plans (as defined in Paragraph 2 hereof).
2. PRE-CONSTRUCTION ACTIVITIES.
(a) On or before FEBRUARY 14, 2003, Tenant shall submit the
following information and items to Landlord for Landlord's review and approval:
(i) A detailed critical path construction schedule containing
the major components of the Work and the time required for each, including the
scheduled commencement date of construction of the Work, milestone dates and the
estimated date of completion of construction.
(ii) An itemized statement of estimated construction cost,
including fees for permits and architectural and engineering fees.
(iii) Evidence satisfactory to Landlord in all respects of
Tenant's ability to pay the cost of the Work as and when payments become due.
(iv) The names and addresses of Tenant's contractors (and said
contractor's subcontractors) and material men to be engaged by Tenant for the
Work (individually, a "Tenant Contractor," and collectively, "Tenant's
Contractors"). Landlord has the right to approve or disapprove all or any one or
more of Tenant's Contractors. Landlord may, at its election, designate a list of
approved contractors for performance of those portions of work involving
electrical, mechanical, plumbing, heating, air conditioning or life safety
systems, from which Tenant must select its contractors for such designated
portions of work.
(v) Certified copies of Insurance policies or certificates of
insurance as hereinafter described. Tenant shall not permit Tenant's Contractors
to commence work until the required insurance has been obtained and certified
copies of policies or certificates have been delivered to Landlord.
(vi) Payment and performance bonds for all of Tenant's
Contractors naming Landlord (or an agent, designee or representative appointed
by Landlord's written notice to Tenant given prior to Tenant's procurement of
paid bonds) as dual obligee.
(vii) The Plans (as hereinafter defined) for the Work, which
Plans shall be subject to Landlord's approval in accordance with Paragraph 2(b)
below.
Tenant will update such information and items by notice to
Landlord of any changes.
(b) As used herein the term "Approved Plans" shall mean the Plans
(as hereinafter defined), as and when approved in writing by Landlord. As used
herein, the term "Plans" shall mean the full and detailed architectural and
engineering plans and specifications covering the Work (including, without
limitation, architectural, mechanical and electrical working drawings for the
Work). The Plans shall be subject to Landlord's approval and the approval of all
local governmental authorities requiring approval of the work and/or the
Approved Plan. Landlord shall give its approval or disapproval (giving general
reasons in case of disapproval) of the Plans within Five (5) days after their
delivery to Landlord. Landlord agrees not to unreasonably withhold its approval
of said Plans; provided, however, that Landlord shall not be deemed to have
acted unreasonably if it withholds its approval of the Plans because, in
Landlord's reasonable opinion: the Work as shown in the Plans is likely to
adversely affect Building systems, the structure of the Building or the safety
of the Building and/or its occupants; the Work as shown on the Plans might
impair Landlord's ability to furnish services to Tenant or other tenants; the
Work would increase the cost of operating the Building; the Work would violate
any governmental laws, rules or ordinances (or interpretations thereof); the
Work contains or uses hazardous or toxic materials or substances; the Work would
adversely affect the appearance of the Building; the Work might adversely affect
another tenant's
26
premises; or the Work is prohibited by any mortgage or trust deed encumbering
the Building. The foregoing reasons, however, shall not be exclusive of the
reasons for which Landlord may withhold consent, whether or not such other
reasons are similar or dissimilar to the foregoing. If Landlord notifies Tenant
that changes are required to the final Plans submitted by Tenant, Tenant shall,
within three (3) business days thereafter, submit to Landlord, for its approval,
the Plans amended in accordance with the changes so required. The Plans shall
also be revised, and the Work shall be changed, all at Tenant's cost and
expense, to incorporate any work required in the Premises by any local
governmental field inspector. Landlord's approval of the Plans shall in no way
be deemed to be (i) an acceptance or approval of any element therein contained
which is in violation of any applicable laws, ordinances, regulations or other
governmental requirements, or (ii) an assurance that work done pursuant to the
Approved Plans will comply with all applicable laws (or with the interpretations
thereof) or satisfy Tenant's objectives and needs.
(c) No Work shall be undertaken or commenced by Tenant in the
Premises until (i) Tenant has delivered, and Landlord has approved, all items
set forth in Paragraph 2(a) above, (ii) all necessary building permits have been
applied for and obtained by Tenant, and (iii) proper provision has been made by
Tenant for payment in full of the cost of the Work, which is satisfactory to
Landlord and which, if applicable, shall be in the form of the construction
escrow referred to in Paragraph 9 hereof or an irrevocable and unconditional
letter of credit issued by a bank acceptable to Landlord, which letter of credit
shall be satisfactory in all respects by Landlord.
3. DELAYS. In the event Tenant fails to deliver or deliver in sufficient
and accurate detail of the information required under Paragraph 2 above on or
before the respective dates specified in said Paragraph 2, or in the event
Tenant, for any reason, fails to complete the Work on or before the Commencement
Date, Tenant shall be responsible for Rent and all other obligations set forth
in the Lease from the Commencement Date regardless of the degree of completion
of the Work on such date, and no such delay in completion of the Work shall
relieve Tenant of any of its obligations under the Lease.
4. CHARGES AND FEES. Tenant shall pay Landlord a supervisory fee in an
amount equal to Zero percent (0%) of the direct cost of the materials and labor
for the Work (and all change orders with respect thereto) to defray Landlord's
administrative and overhead expenses incurred to review the Plans and coordinate
with Tenant's on-site project manager the staging and progress of the Work.
5. CHANGE ORDERS. All changes to the Approved Plans requested by Tenant
must be approved by Landlord in advance of the implementation of such changes as
part of the Work. All delays caused by Tenant-initiated change orders,
including, without limitation, any stoppage of work during the change order
review process, are solely the responsibility of Tenant and shall cause no delay
in the commencement of the Lease or the Rent and other obligations therein set
forth. All increases in the cost of the Work resulting from such change orders
shall be borne by Tenant.
6. STANDARDS OF DESIGN AND CONSTRUCTION AND CONDITIONS OF TENANT'S
PERFORMANCE. All work done in or upon the Premises by Tenant shall be done
according to the standards set forth in this Paragraph 6, except as the same may
be modified in the Approved Plans approved by or on behalf of Landlord and
Tenant.
(a) Tenant's Approved Plans and all design and construction of the
Work shall comply with all applicable statutes, ordinances, regulations, laws,
codes and industry standards, including, but not limited to, requirements of
Landlord's fire insurance underwriters.
(b) Tenant shall, at its own cost and expense, obtain all required
building permits and occupancy permits. Tenant's failure to obtain such permits
shall not cause a delay in the commencement of the Lease Term or the obligation
to pay Rent or any other obligations set forth in the Lease.
(c) Tenant's Contractors shall be licensed contractors, possessing
good labor relations, capable of performing quality workmanship and working in
harmony with Landlord's contractors and subcontractors and with other
contractors and subcontractors in the Building. All work shall be coordinated
with any other construction or other work in the Building in order not to
adversely affect construction work being performed by or for Landlord or its
tenants.
(d) Landlord shall have the right, but not the obligation, to
perform, on behalf of and for the account of Tenant, subject to reimbursement by
Tenant, any work which pertains to patching of the Work and other work in the
Building.
(e) Tenant shall use only new, first-class materials in the Work,
except where explicitly shown in the Approved Plans, All Work shall be done in a
good and workmanlike manner. Tenant shall obtain contractors' warranties of at
least one (1) year duration from the completion of the Work against defects in
workmanship and materials on all work performed and equipment installed in the
Premises as part of the Work.
(f) Tenant and Tenant's Contractors shall make all efforts and
take all steps appropriate to assure that all construction activities undertaken
comport with the reasonable expectations of all tenants and other occupants of a
fully-occupied (or substantially fully occupied) first-class office building and
do not unreasonably interfere with
27
the operation of the Building or with other tenants and occupants of the
Building. In any event, Tenant shall comply with all reasonable rules and
regulations existing from time to time at the Building. Tenant and Tenant's
Contractors shall take all precautionary steps to minimize dust, noise and
construction traffic, and to protect their facilities and the facilities of
others affected by the Work and to properly police same. Construction equipment
and materials are to be kept within the Premises and delivery and loading of
equipment and materials shall be done at such locations and at such time as
Landlord shall direct so as not to burden the construction or operation of the
Building. If and as required by Landlord, the Premises shall be sealed off from
the balance of the office space on the floor(s) containing the Premises so as to
minimize the disbursement of dirt, debris and noise.
(g) Landlord shall have the right to order Tenant or any of
Tenant's Contractors who violate the requirements imposed on Tenant or Tenant's
Contractors in performing work to cease work and remove its equipment and
employees from the Building. No such action by Landlord shall delay the
commencement of the Lease or the obligation to pay Rent or any other obligations
therein set forth.
(h) Utility costs or charges for any service (including HVAC,
hoisting or freight elevator and the like) to the Premises shall be the
responsibility of Tenant from the date Tenant is obligated to commence or
commences the Work and shall be paid for by Tenant at Landlord's standard rates
then in effect. Tenant shall apply and pay for all utility meters required.
Tenant shall pay for all support services provided by Landlord's contractors at
Tenant's request or at Landlord's discretion resulting from breaches or defaults
by Tenant under this Work Letter Agreement. All use of freight elevators is
subject to scheduling by Landlord and the rules and regulations of the Building.
Tenant shall arrange and pay for removal of construction debris and shall not
place debris in the Building's waste containers. If required by Landlord, Tenant
shall sort and separate its waste and debris for recycling and/or environmental
law compliance purposes.
(i) Tenant shall permit access to the Premises, and the Work shall
be subject to inspection, by Landlord and Landlord's architects, engineers,
contractors and other representatives, at all times during the period in which
the Work is being constructed and installed and following completion of the
Work.
(j) Tenant shall proceed with its work expeditiously, continuously
and efficiently, and shall use its best efforts to complete the same on or
before Twenty One (21) days after the date Landlord tenders possession of the
Premises to Tenant for the construction of the Work. Tenant shall notify
Landlord upon completion of the Work and shall furnish Landlord and Landlord's
title insurance company with such further documentation as may be necessary
under Paragraphs 8 and 9 below.
(k) Tenant shall have no authority to deviate from the Approved
Plans in performance of the Work, except as authorized by Landlord and its
designated representative in writing. Tenant shall furnish to Landlord
"as-built" drawings of the Work within thirty (30) days after completion of the
Work.
(1) Landlord shall have the right to run utility lines, pipes,
conduits, duct work and component parts of all mechanical and electrical systems
where necessary or desirable through the Premises, to repair, alter, replace or
remove the same, and to require Tenant to install and maintain proper access
panels thereto.
(m) Tenant shall impose on and enforce all applicable terms of
this Work Letter Agreement against Tenant's architect and Tenant's Contractors.
7. INSURANCE AND INDEMNIFICATION.
(a) In addition to any insurance which may be required under the
Lease, Tenant shall secure, pay for and maintain or cause Tenant's Contractors
to secure, pay for and maintain during the continuance of construction and
fixturing work within the Building or Premises, insurance in the following
minimum coverages and the following minimum limits of liability:
(i) Worker's Compensation and Employer's Liability Insurance
with limits of not less than $500,000.00, or such higher amounts as may be
required from time to time by any Employee Benefit Acts or other statutes
applicable where the work is to be performed, and in any event sufficient to
protect Tenant's Contractors from liability under the aforementioned acts.
(ii) Comprehensive General Liability Insurance (including
Contractors' Protective Liability) in an amount not less than $1,000,000.00 per
occurrence, whether involving bodily injury liability (or death resulting
therefrom) or property damage liability or a combination thereof with a minimum
aggregate limit of $2,000,000.00, and with umbrella coverage with limits not
less than $5,000,000.00. Such insurance shall provide for explosion and
collapse, completed operations coverage and broad form blanket contractual
liability coverage and shall insure Tenant's Contractors against any and all
claims for bodily injury, including death resulting therefrom, and damage to the
property of others and arising from its operations under the contracts whether
such operations are performed by Tenant's Contractors or by anyone directly or
indirectly employed by any of them.
(iii) Comprehensive Automobile Liability Insurance, including
the ownership, maintenance and operation of any automotive equipment, owned,
hired, or non-owned in an amount not less than $500,000.00 for each person in
one accident, and $1,000,000.00 for injuries sustained by two or more persons in
any one accident and property damage liability in an amount not less than
$1,000,000.00 for each accident. Such insurance shall
28
insure Tenant's Contractors against any and all claims for bodily injury,
including death resulting therefrom, and damage to the property of others
arising from its operations under the contracts, whether such operations are
performed by Tenant's Contractors, or by anyone directly or indirectly employed
by any of them.
(iv) "All-risk" builder's risk insurance upon the entire Work
to the full insurable value thereof. This insurance shall include the interests
of Landlord and Tenant (and their respective contractors and subcontractors of
any tier to the extent of any insurable interest therein) in the Work and shall
insure against the perils of fire and extended coverage and shall include
"all-risk" builder's risk insurance for physical loss or damage including,
without duplication of coverage, theft vandalism and malicious mischief. If
portions of the Work are stored off the site of the Building or in transit to
said site are not covered under said "all-risk" builder's risk insurance, then
Tenant shall effect and maintain similar property insurance on such portions of
the Work. Any loss insured under said "all-risk" builder's risk insurance is to
be adjusted with Landlord and Tenant and made payable to Landlord, as trustee
for the insured, as their interests may appear.
All policies (except the worker's compensation policy) shall be endorsed to
include as additional insured parties the parties listed on, or required by, the
Lease, Landlord's contractors, Landlord's architects, and their respective
beneficiaries, partners, directors, officers, employees and agents, and such
additional persons as Landlord may designate. The waiver of subrogation
provisions contained in the Lease shall apply to all insurance policies (except
the workmen's compensation policy) to be obtained by Tenant pursuant to this
paragraph. The insurance policy endorsements shall also provide that all
additional insured parties shall be given thirty (30) days' prior written notice
of any reduction, cancellation or non-renewal of coverage (except that ten (10)
days' notice shall be sufficient in the case of cancellation for non-payment of
premium) and shall provide that the insurance coverage afforded to the
additional insured parties thereunder shall be primary to any insurance carried
independently by said additional insured parties. Additionally, where
applicable, each policy shall contain a cross-liability and severability of
interest clause.
(b) Without limitation of the indemnification provisions contained
in the Lease, to the fullest extent permitted by law Tenant agrees to indemnify,
protect, defend and hold harmless Landlord, the parties listed, or required by,
the Lease to be named as additional insureds, Landlord's contractors, Landlord's
architects, and their respective beneficiaries, partners, directors, officers,
employees and agents, from and against all claims, liabilities, losses, damages
and expenses of whatever nature arising out of or in connection with the Work or
the entry of Tenant or Tenant's Contractors into the Building and the Premises,
including, without limitation, mechanic's liens, the cost of any repairs to the
Premises or Building necessitated by activities of tenant or Tenant's
Contractors, bodily injury to persons (including, to the maximum extent provided
by law, claims arising under the California Structural Work Act) or damage to
the property of Tenant, its employees, agents, invitees, licenses or others. It
is understood and agreed that the foregoing indemnity shall be in addition to
the insurance requirements set forth above and shall not be in discharge of or
in substitution for same or any other indemnity or insurance provision of the
Lease.
8. EXCESS AMOUNTS.
(a) Upon completion of the Work, Tenant shall furnish Landlord
with full and final waivers of liens and contractors' affidavits and statements,
in such form as may be required by Landlord, Landlord's title insurance company
and Landlord's construction or permanent lender, if any, from all parties
performing labor or supplying materials or services in connection with the Work
showing that all of said parties have been compensated in full and waiving all
liens in connection with the Premises and Building. Tenant shall submit to
Landlord a detailed breakdown of Tenant's total construction costs, together
with such evidence of payment as is reasonably satisfactory to Landlord.
(b) Upon completion of the Work and Tenant's satisfaction of all
requirements set forth in this Work Letter Agreement. Prior to commencing (the
Work, Tenant shall submit to Landlord a written statement of the total Cost of
the Work as then known by Tenant. Tenant shall submit to Landlord at the end of
each thirty (30) days copies of invoices that indicate the work has been
completed to Tenant's satisfaction and mechanic lien releases. Tenant shall have
sole responsibility for the payment of such excess cost. Upon demand from
Landlord, Tenant must show evidence of signed contracts and paid invoices.
9. CONSTRUCTION ESCROW. Prior to commencement of any construction or
performance of any Work or payment to or by Tenant or to any of Tenant's
Contractors, Tenant shall, at Landlord's option, establish a construction escrow
or other payment procedure acceptable to Landlord and each holder of a mortgage
on the Building at a title insurance company designated by Landlord providing
for payment to Tenant's Contractors and payment of all other costs associated
with the Work as the Work progresses, upon the title insurance company's
satisfactory review of lien waivers and sworn statements from Tenant's
Contractors and other applicable parties and upon the title insurance company's
willingness to issue title insurance over mechanic's liens relating to Tenant's
contracts and the Work to the date of each draw; in the alternative, Landlord
may elect to have payments to Tenant's Contractors for the Work made through
Landlord's construction lender's escrow. Tenant shall pay for the Work when
required under its contracts for the Work and shall not permit the Premises or
the Building to become subject to any lien or claim of lien on account of labor,
material or services furnished to or for the benefit of Tenant. Tenant shall,
from time to time, deposit funds into the construction escrow or Landlord's
construction lender's escrow, as the case may be, in amounts sufficient to pay
the costs of the Work. Tenant may not withdraw funds except to pay
29
Tenant's Contractors unless Landlord has consented to such withdrawal. The
construction escrow agreement shall contain the foregoing restriction on
withdrawal of funds by Tenant and shall also provide that if Tenant fails to pay
for the Work when due or if any mechanic's lien is filed in connection with the
Work, Landlord may use and withdraw the funds in the escrow to pay for the Work
or remove the lien without Tenant's consent. Tenant shall provide such
contractor's affidavits, tenant (owner) statements, partial and final waivers of
lien, architect's certificates and any additional documentation (including,
without limitation, Tenant or contractor personal undertakings) which may be
requested by Landlord, such title insurance company or any holder of a mortgage
on the Building in connection with said escrow or consistent with any other
title insurance requirements concerning the Work
10. MISCELLANEOUS.
(a) If the Plans for the Work require the construction and
installation of more fire hose cabinets or telephone/electrical closets than the
number regularly provided by Landlord in the core of the Building in which the
Premises are located, Tenant agrees to pay all costs and expenses arising from
the construction and installation of such additional fire hose cabinets or
telephone/electrical closets.
(b) Time is of the essence of this Work Letter Agreement.
(c) Any person signing this Work Letter Agreement on behalf of
Landlord and Tenant warrants and represents he has authority to sign and deliver
this Work Letter Agreement and bind the party on behalf of which he has signed.
(d) If Tenant fails to make any payment relating to the Work as
required hereunder, Landlord, at its option, may complete the Work pursuant to
the Approved Plans and continue to hold Tenant liable for the costs thereof and
all other costs due to Landlord. Tenant's failure to pay any amounts owed by
Tenant hereunder when due or Tenant's failure to perform its obligations
hereunder shall also constitute a default under the Lease and Landlord shall
have all the rights and remedies granted to Landlord under the Lease for
nonpayment of any amounts owed thereunder or failure by Tenant to perform its
obligations thereunder.
(e) Notices under this Work Letter shall be given in the same
manner as under the Lease.
(f) The liability of Landlord hereunder or under any amendment
hereto or any instrument or document executed in connection herewith (including,
without limitation, the Lease) shall be limited to and enforceable solely
against Landlord's interest in the Building.
(g) The headings set forth herein are for convenience only.
(h) This Work Letter sets forth the entire agreement of Tenant and
Landlord regarding the Work. This Work Letter may only be amended if in writing,
duly executed by both Landlord and Tenant.
(i) All amounts due from Tenant hereunder shall be deemed to be
Rent due under the Lease.
11. ON-SITE PROJECT MANAGER.
As a condition of Tenant's right to commence and perform the Work,
Tenant shall engage the services of an on-site project manager approved in
advance by and reasonably acceptable to Landlord, who will be charged with the
task of performing daily supervision of the Work. Such on-site manager shall be
familiar with all rules and regulations and procedures of the Building and all
personnel of the Building engaged directly or indirectly in the management,
operation and construction of the Building. Such on-site project manager shall
be accountable and responsible to Tenant and to Landlord and, where necessary,
shall serve as a liaison between Landlord and Tenant with respect to the Work.
The entire cost and expense of the on-site project manager shall be borne and
paid for by Tenant (subject to Tenant's right to use all or any part of
Landlord's Contribution to reimburse Tenant for the same.)
12. EXCULPATION OF LANDLORD.
Notwithstanding anything to the contrary contained in this Work Letter
Agreement, it is expressly understood and agreed by and between the parties
hereto that:
(a) The recourse of Tenant or its successors or assigns against
Landlord with respect to the alleged breach by or on the part of Landlord of any
representation, warranty, covenant, undertaking or agreement contained in this
Work Letter Agreement (collectively, "Landlord's Work Letter Undertakings")
shall extend only to Landlord's interest in the real estate of which the
Premises demised under this Lease Documents are a part (hereinafter, "Landlord's
Real Estate") and not to any other assets of Landlord or its beneficiaries; and
(b) Except to the extent of Landlord's interest in Landlord's Real
Estate, no personal liability or personal responsibility of any sort with
respect to any of Landlord's Work Letter Undertakings or any alleged
30
breach thereof is assumed by, or shall at any time be asserted or enforceable
against, Landlord, Xxxxxxx Properties, Inc., or against any of their respective
directors, officers, employees, agents, constituent partners, beneficiaries,
trustees or representatives.
IN WITNESS WHEREOF, the parties hereto have executed this Work Letter
as of the date first above written.
LANDLORD: TENANT:
3600 WILSHIRE, LLC, A California limited liability NARA BANK, National Association
company
By: JPB Partners, Inc., a California corporation
Its: Manager By: /s/ Bon T. Goo
------------------------
By: /s/ Xxxxx X. Xxx
-------------------- Print Name: Bon T. Goo
Xxxxx X. Xxx, M.D.
Its: Presidendt Its: CFO & EVP
Date: 2/7/03 Date: 2/6/03
By: /s/ [ILLEGIBLE]
-------------------------
Print Name: [ILLEGIBLE]
Its: Director of Legal Affairs
Date: 2/6/03
31
EXHIBIT C
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or used for
any purpose other than ingress and egress. The halls, passages, entrances,
elevators, stairways, balconies and roof are not for the use of the general
public, and Landlord shall in all cases retain the right to control or prevent
access thereto by all persons whose presence in the judgment of Landlord shall
be prejudicial to the safety, character, reputation or interests of Landlord and
its tenants, provided that nothing herein contained shall be construed to
prevent such access by persons with whom the tenant normally deals in the
ordinary course of its business unless such persons are engaged in illegal
activities No tenant and no employees of any tenant shall go upon the roof of
the Building without the written consent of Landlord.
2. No awnings or other projections shall be attached to the
outside walls or surfaces of the Building nor shall the interior or exterior of
any windows be coated without the prior written consent of Landlord. Except as
otherwise specifically approved by Landlord, all electrical ceiling fixtures
hung in offices or spaces along the perimeter of the Building must be
fluorescent and of a quality, type, design and bulb color approved by Landlord.
Tenant shall not place anything or allow anything to be placed near the glass of
any window, door, partition or wall which may appear unsightly from outside the
Premises.
3. Interior signs on doors and the directory tablet shall be
inscribed, painted or affixed for each tenant by Landlord at the expense of such
tenant, and shall be of a size, color and style acceptable to Landlord.
4. The toilets and wash basins 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
damage resulting from any misuse of the fixtures shall be borne by tenant who,
or whose servants, employees, agents, visitors or licensees, shall have caused
the same.
5. No tenant or its officers, agents, employees or invitees shall
xxxx, paint, drill into, or in any way deface any part of the Premises or the
Building. No boring, cutting or stringing of wires or laying of linoleum or
other similar floor coverings shall be permitted except with the prior written
consent of Landlord and as Landlord may direct.
6. No bicycles, vehicles or animals of any kind shall be brought
into or kept in or about the Premises and no cooking shall be done or permitted
by any tenant on the Premises except that microwave cooking in a UL-approved
microwave oven and the preparation of coffee, tea, hot chocolate and similar
items for the tenant and its employees and business visitors shall be permitted.
Tenant shall not cause or permit any unusual or objectionable odors to escape
from the Premises.
7. The Premises shall not be used for manufacturing or for the
storage of merchandise except as such storage may be incidental to the use of
the Premises for general office purposes. No tenant shall engage or pay any
employees on the Premises except those actually working for such tenant on the
Premises nor advertise for laborers giving an address at the Premises. The
Premises shall not be used for lodging or sleeping or for any immoral or illegal
purposes.
8. No tenant or its officers, agents, employees or invitees shall
make, or permit to be made any unseemly or disturbing noises, sounds or
vibrations or disturb or interfere with occupants of this or neighboring
buildings or Premises or those having business with them whether by the use of
any musical instrument, radio, phonograph, unusual noise, or in any other way.
9. No tenant or its officers, agents, employees or invitees shall
throw anything out of doors, balconies or down the passageways.
10. Tenant shall not maintain armed security in or about the
Premises nor possess any weapons, explosives, combustibles or other hazardous
devices in or about the Building and/or Premises.
11. No tenant or its officers, agents, employees or invitees shall
at any time use, bring or keep upon the Premises any flammable, combustible,
explosive, foul or noxious fluid, chemical or substance, or do or permit
anything to be done in the leased Promises, or bring or keep anything therein,
which shall in any way increase the rate of fire insurance on the Building, or
on the property kept therein, or obstruct or interfere with the rights of other
tenants, or in any way injure or annoy them, or conflict with the regulations of
the Fire Department or the fire laws, or with any insurance policy upon the
Building, or any part thereof, or with any rules and ordinances established by
the Board of Health or other governmental authority.
12. Each tenant must, upon the termination of this tenancy,
restore to Landlord all keys of stores, offices, and toilet rooms, either
furnished to, or otherwise procured by, such tenant, and in the event of the
loss of any keys so furnished, such tenant shall pay to Landlord the cost of
replacing the same or of changing the lock or locks opened by such lost key if
Landlord shall deem it necessary to make such change.
13. All removals, or the carrying in or out of any safes, freight,
furniture, or bulky matter of any description must take place during the hours
which Landlord may determine form time to time. The moving of
32
safes or other fixtures or bulky matter of any kind must be made upon previous
notice to the manager of the Building and under his or her supervision, and the
persons employed by any tenant for such work must be acceptable to Landlord.
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.
Landlord reserves the right to prohibit or impose conditions upon the
installation in the Premises of heavy objects which might overload the building
floors. Landlord will not be responsible for loss of or damage to any safes,
freight, bulky articles or other property from any cause, and all damage done to
the Building by moving or maintaining any such safe or other property shall be
repaired at the expense of the tenant.
14. No tenant shall purchase or otherwise obtain for use in the
Premises water, ice, towel, vending machine, janitorial, maintenance or other
like services, or accept barbering or bootblacking services, except from persons
authorized by Landlord, and at hours and under regulations fixed by Landlord.
15. Landlord shall have the right to prohibit any advertising by
any tenant which, in Landlord's opinion, tends to impair the reputation of the
Building or its desirability as an office building and upon written notice from
Landlord any tenant shall refrain from or discontinue such advertising. No
tenant shall use any graphic image of the Building or any part of the Building
for advertising or public relations without Landlord's written permission.
16. Landlord reserves the right to exclude from the Building
between the hours of 10:00 p.m. and 6:00 a.m. and at all hours of Saturdays,
Sundays and legal holidays all persons who do not present a pass signed by
Landlord. Landlord shall furnish passes to persons for whom any tenant requests
the same in writing. Each tenant shall be responsible for all persons for whom
he requests passes and shall be liable to Landlord for all acts of such persons.
Landlord shall in no case be liable for damages for any error with regard to the
admission to or exclusion from the Building of any person. In the case of
invasion, mob, riot, public excitement or other commotion, Landlord reserves the
right to prevent access to the Building during the continuance of the same, by
closing of the gates and doors or otherwise, for the safety of the tenants and
others and the protection of the Building and the property therein.
17. Any outside contractor employed by any tenant, shall, while in
the Building, be subject to the Rules and Regulations of the Building. Tenant
shall be responsible for all acts of such persons and Landlord shall not be
responsible for any loss or damage to property in the Premises, however
occurring.
18. All doors opening onto public corridors shall be kept closed,
except when in use for ingress and egress, and left locked when not in use.
19. The requirements of tenants will be attended to only upon
application to the Office of the Building.
20. Canvassing, soliciting and peddling in the Building are
prohibited and each tenant shall cooperate to prevent the same.
21. All office equipment of any electrical or mechanical nature
shall be placed by tenants in the Premises in setting approved by Landlord, to
absorb or prevent any vibration, noise or annoyance.
22. No air conditioning unit or other similar apparatus shall be
installed or used by any tenant without the written consent of Landlord.
23. There shall not be used in any space, or in the public halls
of the Building either by any tenant or others, any hand trucks except those
equipped with rubber tires and side guards.
24. Landlord will direct electricians as to where and how
telephone and telegraph wires are to be introduced. No boring or cutting for
wires or stringing of wires will be allowed without written consent of Landlord.
The location of telephones, call boxes and other office equipment affixed to the
Premises shall be subject to the approval of Landlord. All such work shall be
effected pursuant to permits issued by all applicable governmental authorities
having jurisdiction.
25. No vendor with the intent of selling such goods shall be
allowed to transport or carry beverages, food, food containers, etc., on any
passenger elevators. The transportation of such items shall be via the service
elevators in such manner as prescribed by Landlord.
26. Tenants shall cooperate with Landlord in the conservation of
energy used in or about the Building, including without limitation, cooperating
with Landlord in obtaining maximum effectiveness of the cooling system by
closing drapes or other window coverings when the sun's rays fall directly on
windows of the Premises, and closing windows and doors to prevent heat loss.
Tenant shall not obstruct, alter or in any way impair the efficient operation of
Landlord's heating, lighting, ventilating and air conditioning system and shall
not place bottles, machines, parcels or any other articles on the induction unit
enclosure so as to interfere with air flow. Tenant shall not tamper with or
change the setting of any thermostats or temperature control valves, and shall
in general use heat, gas, electricity, air conditioning equipment and heating
equipment in a manner compatible with sound energy conservation practices and
standards.
33
27. All parking ramps and areas, pedestrian walkways, plazas, and
other public areas forming a part of the Building shall be under the sole and
absolute control of Landlord with the exclusive right to regulate and control
these areas. Tenant agrees to conform to the rules and regulations that may be
established by Landlord for these areas from time to time.
28. Landlord reserves the right to exclude or expel from the
Building any person who, in the judgment of Landlord, is intoxicated or under
the influence of liquor or drugs, or who shall in any manner do any act in
violation of any of the rules and regulations of the Building.
29. Tenant and its employees, agents, subtenants, contractors and
invitees shall comply with all applicable "no-smoking" ordinances and,
irrespective of such ordinances, shall not smoke or permit smoking of
cigarettes, cigars or pipes outside of Tenant's Premises (including plaza areas)
in any portions of the Building except areas specifically designated as smoking
areas by Landlord. If required by applicable ordinance, Tenant shall provide
smoking areas within Tenant's Premises.
34
EXHIBIT D
GUARANTY BY A CORPORATION
INTENTIONALLY OMITTED
35
EXHIBIT E
SUITE ACCEPTANCE AGREEMENT
BUILDING NAME/ADDRESS: 0000 XXXXXXXX XXXXXXXXX
TENANT NAME: NARA BANK, NATIONAL ASSOCIATION
TENANT CODE:______________________________ SUITE NUMBER: 100A
MANAGEMENT'S TENANT CONTACT:_______________________________PHONE: 000-000-0000
Gentlemen:
As a representative of the above referenced tenant, I/we have physically
inspected the suite noted above and its improvements with____________________, a
representative of___________________________. I/we accept the suite improvements
as to compliance with all the requirements indicated in our lease, also
including the following verified information below:
Lease Commencement Date: July 1,2003 Occupancy Date
Lease Rent Start Date*: July 1,2003 Actual Rent Start*:
Lease Expiration Date: June 30, 2013 Actual Expiration Date:
Date Keys Delivered:
Items requiring attention: _____________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
* If these dates are not the same, attach documentation.
NOTE: This inspection is to be made prior to tenant move-in.
Very truly yours,
________________________________
By: _____________________
Its: _____________________
Date: _____________________
Distribution
Tenant
Tenant Lease File
Leasing Manager: _____________________
Document Control: _____________________
Regional Construction Manager: _____________________
Regional Engineering Manager: _____________________
36
EXHIBIT F
ASBESTOS NOTIFICATION
37
EXHIBIT F
ASBESTOS NOTIFICATION
NOTICE PURSUANT TO AB3713
CALIFORNIA HEALTH & SAFETY CODE 25915 ET SEQ.
RE: 0000 XXXXXXXX XXXXXXXXX, XXX XXXXXXX, XXXXXXXXXX (BUILDING)
California legislation requires landlords and tenants of commercial buildings
constructed prior to 1979 to notify each other and their respective employees
working within such building of any knowledge they may have regarding any
asbestos containing construction material in the building. This notice is to
provide you with the information required under this legislation.
Certain tests to determine the existence of asbestos containing construction
materials have been conducted. The results of these tests, which are summarized
below, indicate that there are asbestos containing construction materials in the
Buildings. Some of these materials in some locations have been abated (removed)
by the prior owner of the Buildings.
The specific locations within the Building where asbestos containing
construction materials have been identified by the reports as being present in
any quantities are as follows:
1. The fire proofing on the steel deck and structural beams between floors
and above the ceiling line.
1. The thermal insulation on pipes and equipment on the roof and basement
level equipment rooms.
2. The thermal insulation on pipes in the tenth (10th) floor equipment
room.
3. The thermal insulation on pipes located inside the wet columns
throughout the Building.
4. The adhesive mastic holding the corridor ceiling tiles substrate.
5. Some of the vinyl floor tiles located throughout the Buildings.
The general procedures and handling restrictions necessary to minimize any
disturbance to, release of and exposure to the asbestos are:
1. No work is to be performed above the suspended ceiling line of any
floor without prior authorization from the Office of the Building.
2. Access to any and all equipment rooms (including electrical and
telephone rooms) is strictly prohibited, except to personnel authorized
by the Office of the Building.
3. No work is to be performed on vinyl floor tiles without prior
authorization from the Office of the Building.
We have no special knowledge concerning the potential health risks or impacts
that may result from exposure to asbestos in the Buildings, but we understand
that potential health risks may exist if asbestos fibers are released from
asbestos containing construction materials. Those of your that may require
additional information of potential health risks are encouraged to contact
appropriate government agencies, including Federal and State OSHA, State Health
& Welfare Agency, State Department of Health Services and the County Health
Departments.
If there are any questions regarding this notice, please contact the Property
Manager at 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxxxxx, XX 00000.
38
EXHIBIT G
PARKING AGREEMENT
So long as the lease dated JANUARY 17, 2003, 3600 WILSHIRE, LLC, A California
limited liability company, c/o JPB Partners, Inc., a California corporation,
("Landlord") and NARA BANK, NATIONAL ASSOCIATION, as ("Tenant") covering space
at 0000 Xxxxxxxx Xxxx., XXXXX 000X, Xxx Xxxxxxx, XX 00000 property commonly
known as Wilshire Financial Tower as (the "Property") remains in effect, and so
long as the Rules and Regulations adopted by Landlord are not violated, Tenant
or persons designated by Tenant, shall have the right to use on a month to month
basis FIFTY (50) parking spaces for Tenant's employee use in the Parking
Facilities associated with or forming a part of the Property. THREE (3) of above
allotted parking spaces shall be on a reserved basis. Additionally, Landlord
will provide TEN (10) reserved upper level parking spaces near the south
entrance of the building project for Tenant's visitors. Said parking spaces
shall be offered to Tenant at the building's prevailing parking rates subject to
applicable city, state, and federal taxes and assessments, if any, which amount
may be changed from time to time at Landlord's reasonable discretion. Tenant may
validate visitor parking at Landlord's prevailing rate. However, should Tenant
or Tenant's designee materially violate the Parking Rules and Regulations, the
right to the parking spaces granted in this Parking Agreement shall be subject
to cancellation by Landlord, in whole or in part, at any time upon not less than
thirty (30) days prior written notice, except where the Parking Rules and
Regulations provide for a shorter notice.
A condition of any parking shall be compliance by the driver with Parking Rules
and Regulations, including any sticker or other identification system
established by the parking operator. The following Parking Rules and Regulations
are currently in effect. Landlord reserves the right to modify and/or adopt such
other reasonable and nondiscriminatory Rules and Regulations for the Parking
Facilities as it deems necessary for the operation of the Parking Facilities.
The parking operator may refuse to admit any person who violates the Parking
Rules and Regulations ("Rules") to park in the Parking Facilities, and any
violation of the Rules shall subject the driver's car to removal from the
Parking Facilities. In either of said events the parking operator shall refund a
prorata portion of the current parking rate and the sticker or any other form of
identification shall be returned or caused to be returned by Tenant to the
parking operator.
Landlord expressly disclaims any responsibility for any theft of or vandalism or
damage to any personal property, including without limitation, any motor
vehicle, in, on, or about the Parking Facilities irrespective of cause,
circumstance, or parties involved. As a material inducement to Landlord to allow
Tenant the parking rights set forth herein, Tenant agrees to assume full
responsibility for the foregoing to the extent such relates to Tenant and/or
Tenant's employees, principals, agents, affiliates, and/or invitees, and Tenant
agrees to indemnify, defend and hold harmless Landlord for all costs, liability
and damages relating to or arising from the foregoing.
The occurrence of the following shall constitute a material default and breach
of the Lease to which this Parking Agreement is attached as Exhibit "F" and
shall entitle Landlord to exercise such remedies as are therein provided, in
addition to any other right or remedy which Landlord may have at law or in
equity by reason of such default or breach:
The failure of Tenant to make any payment required to be made by Tenant under
this Parking Agreement, where such failure continues until the earlier of (I)
five (5) days after the date on which such payment was due, or (II) three days
after written notice thereof has been given by Landlord to Tenant; or
The failure of Tenant to observe and perform any other provision of this Parking
Agreement to be observed or performed by Tenant, where such failure continues
for five (5) days after written notice thereof by Landlord to Tenant; provided,
however, that any such notice referred to in part; (b) hereof shall be in lieu
of and not in addition to any notice required under Section 1161 of the
California Code of Civil Procedure.
PARKING RULES AND REGULATIONS
Parking Facilities hours shall be as posted by management.
Cars must be parked entirely within the stall lines painted on the floor.
All directional signs and arrows must be observed.
The speed limit shall be 5 miles per hour.
Parking is prohibited in areas:
not striped for parking
aisles
where "no parking" signs are posted
ramps
in reserved spaces, except for the person for whom such space is reserved.
Parking stickers or any other device or form of identification supplied by the
parking operator shall remain the property of the parking operator. Such parking
identification device must be displayed in the front area of the interior of the
vehicle, or as requested, so that it may be readily observed by the parking
operator's attendants at all times while the vehicle is in the Parking
Facilities, and it may not be mutilated in any manner, and the serial number
39
of the parking identification device may not be obliterated. Devices are not
transferable and any device in the possession of an unauthorized holder will be
void.
The monthly rent for parking space is payable one (1) month in advance and must
be paid prior to the fifth day of each calendar month. Failure to do so will
automatically cancel parking privileges and a charge at the prevailing daily
parking rate plus a reinstatement fee of $25.00 will be due. No deductions or
allowances from the monthly rate will be made for time the customer does not use
Parking Facilities.
Parking managers or attendants are not authorized to make or allow any
exceptions to these Parking Rules and Regulations and these Parking Rules and
Regulations may be from time to time modified or amended.
Every driver is required to park his/her own car. If there are tandem spaces,
the first car shall pull all the way to the front of the space leaving room for
a second car to park behind the first car. The driver parking behind the first
car must leave his key in the ignition and the door of his car unlocked. Failure
to do so shall subject the driver of the second car to a $25.00 fine. Refusal of
the driver to leave his key to the second car when parking tandem shall be cause
for termination of the right to park in the Parking Facilities. The parking
operator, or his employees or agents, shall be authorized to move cars that are
parked in tandem should it be necessary for the operation of the Parking
Facilities. Tenant agrees that all responsibility for damage to cars or the
theft of or from cars is assumed by the driver, and further agrees that he/she
will hold Landlord harmless for any such damages or theft.
Loss or theft of parking identification stickers or devices from automobiles
must be reported to the parking operator immediately, and a lost or stolen
report must be filed by the customer at that time.
Any parking identification stickers or devices reported lost or stolen, found on
any unauthorized car will be confiscated and the illegal holder will be subject
to prosecution
Lost or stolen stickers or devices found by the purchaser must be reported to
the parking operator immediately.
Spaces rented are for the express purpose of parking automobiles and for no
other purpose. Washing, waxing, cleaning or servicing of any vehicle by the
customer and/or his agents is prohibited.
The parking operator reserves the right to refuse the sale of monthly stickers
to any tenant or person and/or his agents or representatives who willfully
refuse to comply with these Parking Rules and Regulations and all unposted City,
State or Federal ordinances, laws or agreements.
By signing this Parking Agreement, Tenant agrees to inform all persons to whom
tenant assigns parking space of the context of these Parking Rules and
Regulations.
LANDLORD: TENANT:
3600 WILSHIRE, LLC, A California NARA BANK, National Association
limited liability company
By: JPB Partners, Inc., a By: [ILLEGIBLE]
California corporation -----------------------
Its: Manager
Print Name: Bon T. Goo
By: /s/ Xxxxx X.Xxx, M.D.
----------------------- Its: CFO & EVP
Xxxxx X. Xxx, M.D.
Date: 2/6/03
Its: President
By: [ILLEGIBLE]
Date: 2/7/03 --------------------
Print Name: [ILLEGIBLE]
Its: Director of Legal Affairs
Date: 2/6/03
40
ADDENDUM I
This Addendum I to Lease is made and entered into as of the JANUARY
17, 2003 ("the Effective Date") by and between 3600 WILSHIRE, LLC A California
limited liability company, its Manager By: c/o JPB Partners, Inc., a California
corporation, ("Landlord") and NARA BANK, NATIONAL ASSOCIATION, as ("Tenant"). In
the event of a conflict between the Lease and this Addendum 1 to Lease, this
Addendum shall prevail.
1. TENANT'S DUTIES TO MAINTAIN THE PREMISES: During the Lease Term, Tenant
agrees to maintain and keep clean at all times the interior and store front of
the Premises (including repair of plate glass and cleaning and maintenance of
the Plaza deck area where Tenant's enter and exit) at Tenant's sole cost and
expense and with a degree of workmanship reasonably acceptable to Landlord. Such
maintenance and cleaning of the store front glass shall be done by Tenant
periodically and Tenant shall maintain the metal trim around and between the
windows, doors and thresholds of the Premises at least once a month or as needed
during the Lease Term. Notwithstanding anything to the contrary herein, Tenant
agrees to repair or replace any damaged plate glass within Seven (7) business
days of occurrence. Tenant shall be responsible for painting the entire interior
of the premises every Five (5) years during the Lease term. Tenant agrees that
it shall use a contractor or contractors acceptable to Landlord and approved in
writing by Landlord for such maintenance and cleaning.
2. PRIOR OCCUPANCY: Tenant shall be permitted to enter the Premises during
the Four (4) months period, from March 1, 2003 through June 30, 2003, prior to
the Commencement Date, for the purpose of constructing its Premises, installing
furniture, fixtures, equipment or other special leasehold improvements. Landlord
shall deliver the Premises to Tenant no later than February 28,2003 ready for
Tenant's construction.
3. JANITORIAL AND PEST CONTROL: During the Lease Term, Tenant shall keep
and maintain the Premises in a clean and sanitary condition at all times as well
as providing adquate pest control on a monthly basis, or more often, if
necessary, at its sole cost and expense.
4. UTILITIES AND SERVICES: Tenant shall be responsible for and shall pay
promptly all charges of water, gas, electricity, sewer, heat, light, power,
telephone, refuse pickup, janitorial service and all other utilities, materials
and services furnished directly or indirectly to the Premises during the term,
and any option periods exercised by Tenant. Separate meters will measure
Tenant's electrical and gas usage at the Premises. Tenant shall be responsible
at its own cost for the maintenance and repair of said separate meters. Tenant
shall at its own cost install or have installed on its behalf a separate meters
which shall measure Tenant's electrical and gas consumption at the Premises and
Tenant shall arrange with the local natural gas utility and electrical utility
company for Tenant to be billed directly for its gas and electrical consumption
at the Premises. Tenant shall be responsible fir the maintenance and repair of
said separate meters. Tenant shall be responsible for maintaining the Premises
in a clean and sanitary condition at all times, including but not limited to a
drain maintenance program by a certified licensed plumber as well as maintaining
a pest control system on a monthly basis, or more often, if required. The cost
of such is to be paid for by Tenant.
5. TRASH DUMPSTER REMOVAL: Throughout the term of this Lease and any
extension hereof, at Tenant's sole cost and expense, Tenant shall contract with
an outside trash removal company to remove any and all trash generated by
Tenant. This vendor must have it on file, with the Landlord a certificate of
Insurance naming the Landlord and the Management Company as additional insured.
The Tenant further agrees that it will dispose of all garbage and refuse at
times and locations that Landlord specifies so as not to inconvenience or annoy
the tenants or visitors in the building of which the Premises form a part.
Tenant covenants and agrees that all garbage waiting collection shall be kept in
an adequately contained space within the Premises until such time as it is
actually disposed of. All trash must be kept in sealed, lockable containers so
as not to emit any odors or leakage and must be removed from the Premises once a
day. Tenant further covenants and agrees that it will wash and clean empty
refuse can in an area designated by Landlord.
6. EXCLUSIVITY FOR GENERAL BANKING BUSINESS: Landlord hereby
agrees that Tenant and its operations shall be the exclusive banking entity
on-site at the Premises and/or project.
7. SIGNAGE: Tenant shall not affix, paint, erect or inscribe any sign,
protection, awning, signal or advertisement of any kind to any part of the
Premises, Building or Project, including without limitation, the inside or
outside of windows or doors, without the prior written consent of Landlord.
Tenant shall be permitted to install signage at Tenant's cost and subject to
Landlord's consent, above its Premises along Wilshire Boulevard and any adjacent
street to its Premises. Signage rights shall be at no cost to Tenant, with
exception to cost of installation. Design shall be subject to Landlord and City
of Los Angeles approval Landlord shall have the right to remove any signs or
other matter installed without Landlord's permission, without being liable to
Tenant by reason of such removal, and to charge the cost of removal to Tenant as
additional Rent hereunder, payable within Ten (10) days of written demand by
Landlord. Tenant may utilize, letter style and graphics on all interior and
exterior (canopy) signage. Exterior signage shall be illuminated signage.
Landlord shall not unreasonably withhold its consent to Tenant's signs, which
conform, to Landlord's sign criteria and local sign ordinances. Said signage
shall be at Tenant's sole cost and expense and Tenant shall maintain signage in
good order and repair at all times at Tenant's sole cost and expense.
8. TELEPONE AND COMMUNICATIONS: All private telephone and communications
systems must be installed in Tenant suite area. Special equipment shall not be
maintained in telephone terminal rooms.
41
9. RISER CABLE: Landlord will maintain the telephone cable it has
installed inside the Property. Landlord, however, shall not be responsible for
interruption of service transmission, installation, and/or quality of intra-
building network of cable.
10. PLUMBING REPAIRS: Landlord shall not be responsible for repair and
maintenance of any plumbing in the Premises such as sinks or kitchen facilities
in the suite. Tenant shall be responsible for cleaning, drain work that may be
necessary, repair of garbage disposal, and any other related costs to the extent
such costs are not covered by manufacturer or contractor warranties. Tenant
shall reimburse any costs incurred by Landlord for these items to Landlord.
11. PLATE GLASS INSURANCE: During the entire term of the Lease, Tenant
shall maintain, at its own expense, an insurance policy covering all plate glass
and other glass in the premises which shall name Landlord as an additional
insured, and Tenant will deliver to Landlord such policy of insurance or
certificates therefore not less than Fifteen (15) days before the commencement
of the term of the Lease or before Tenant shall enter the Premises, whichever is
earlier, and will renew such policy and deliver such renewal policy to Landlord
not less than Fifteen (15) days before the expiration of the policy so renewed.
Should Tenant fail to deliver such insurance within the time aforesaid, Landlord
shall notify Tenant of Landlord's intention to procure such insurance. If Tenant
has not delivered evidence of such insurance within Ten (10) days following
receipt of such notice, Landlord may procure such insurance and pay the premiums
thereof, in which case, Tenant shall reimburse Landlord for the cost thereof as
additional rent on the first day of the calendar month following the receipt of
Landlord's evidence of payment thereof. Landlord shall have the same rights and
remedies in endorsing the payment of any such additional rent as in the case of
Tenant's failure to pay the rental herein reserved. Such plate glass insurance
shall be in an amount sufficient to replace all plate glass of like quality in
the Premises including the installation thereof.
12. HVAC: Tenant acknowledges that the Premises has a separate air
conditioning system for after hours usage, which supplies the Premises
exclusively, and is under the care, custody and control of Tenant. Landlord
shall, prior to the Lease Commencement Date, service the HVAC units to make sure
they are in good working condition. Thereafter, Tenant shall be responsible for
all maintenance and repair costs or replacement relative to such systems
throughout the term of the Lease. Tenant shall keep and maintain the system in
good working order and repair throughout the term of the Lease, and Tenant shall
use contractors acceptable to Landlord for said maintenance, repair and/or
replacement.
13. RENEWAL OPTIONS: Provided that no event of default has ever occurred
under any term or provision contained in this Lease and no condition exists
which with the passage of time or the giving of notice or both would constitute
an event of default pursuant to this lease and provided that Tenant has
continuously occupied the Premises for the permitted use during the Lease Term,
Tenant shall have the right and option (the "Renewal option") to renew this
Lease by written notice delivered to Landlord no later than Nine (9) months
prior to the expiration of the initial Lease Term, for Two (2) additional terms
(the renewal term) of Sixty (60) months under the same terms, conditions and
covenants contained in this Lease, except that: a) no abatements or other
concessions if any applicable to the initial Lease Term shall apply to the
Renewal Term: b) the Base Rental shall be equal to the Fair Market rate
including all applicable concessions for comparable space located in the
Building as of the end of the initial Lease Term or extended term: c) Tenant
shall have no option to renew this Lease beyond the expiration of the Renewal
Terms and the all leasehold improvements within the Premises shall be provided
in their then existing condition (on an "as is" basis) at the time the Renewal
Term commences. Failure by Tenant to notify Landlord in writing of Tenant's
election to exercise any Renewal Option herein granted within the time limits
set forth for such exercise shall constitute a waiver of such Renewal Option. In
the event Tenant elects to exercise the Renewal Option as set forth above,
Landlord shall within Thirty (30) days thereafter notify Tenant in writing of
the Proposed Rental for the Renewal Term (the "Proposed Renewal Rental" ).
Tenant shall within Thirty (30) days following delivery of the Proposed Renewal
Rental by Landlord notify Landlord in writing of the acceptance or rejection of
the Proposed Renewal Rental. If Tenant accepts Landlord's proposal, then the
Proposed Renewal Rental shall be the rental rate in effect during the Renewal
Term. Failure of Tenant to respond in writing during the aforementioned Thirty
(30) day period shall be deemed an acceptance by Tenant of the Proposed Renewal
Rental. Should Tenant reject Landlord's Proposed Renewal Rental during such
Thirty (30) day period, then Landlord and Tenant shall negotiate during the
Thirty (30) day period commencing upon Tenant's rejection of Landlord's Proposed
Renewal Rental to determine the rental for the Renewal Term.
14. PRELIMINARY SPACE PLAN: Landlord to provide sixteen cents ($0.16) per
usable square foot. Said allowance is to pay for Tenant's space planner to
design a preliminary drawing of said space.
15. MOVE-IN: The demised premises shall be thoroughly cleaned, at
Landlord's sole cost and expense, prior to the delivery of the Premises to
Tenant for construction.
16. ABANDONMENT: Tenant shall not be in default for vacating the premises
so long as Tenant pays its rent per the Lease agreement and is not in default on
other provisions of this Lease.
Upon exercise of Renewal Option by Tenant and subject to the conditions
set forth hereinabove, the Lease shall be extended for the period of such
Renewal Term without the necessity of the execution of any further instrument or
document, although if requested by either party, Landlord and Tenant shall enter
into a written agreement modifying and supplementing the Lease in accordance
with the provisions hereof. Any termination of the Lease during the initial
Lease Term shall terminate all renewal rights hereunder. The renewal rights of
Tenant hereunder shall not be severable from the Lease, nor may such rights be
assigned or otherwise conveyed in
42
connection with any permitted assignment of the Lease. Landlord's consent to any
assignment of the Lease shall not be construed as allowing an assignment of such
rights to any assignee.
Except as amended herein, all other provisions of the Lease Agreement
remain in full force and effect. This Addendum I shall control in the event of
any inconsistency with the original lease. If Tenant shall be a corporation, the
authorized officers must sign on behalf of the corporation and indicate the
capacity in which they are signing.
LANDLORD: TENANT:
3600 WILSHIRE, LLC, A California NARA BANK, National Association
limited liability company
By: JPB Partners, Inc., a By: [ILLEGIBLE]
California corporation -----------------------
Its: Manager
Print Name: Bon T. Goo
By: /s/ Xxxxx X. Xxx, M.D.
----------------------- Its: CFO & EVP
Xxxxx X. Xxx, M.D.
Date: 2/6/03
Its: President
By: [ILLEGIBLE]
Date: 2/7/03 --------------------
Print Name: [ILLEGIBLE]
Its: Director of Legal Affairs
Date: 2/6/03
43
ADDENDUM TO LEASE
This ADDENDUM TO LEASE (this "Addendum") is an addendum to and part of
that certain Lease dated January 17, 2003 (the "Lease") by and between by and
between 3600 Wilshire, LLC, a California limited liability company. ("Landlord")
and Nara Bank, National Association ("Tenant").
1. Unless otherwise defined herein, all capitalized terms in this
Addendum shall have the meanings ascribed to them in the Lease. All references
herein to sections are to sections in the Lease.
2. The fourth line of Section 1.03 is amended to insert the words
"and Tenant's" after the word "Landlord's."
3. The first line of Section 1.10 is amended to delete "Banking
and Office" and to insert in its place and stead "banking, financial services,
insurance, general office or retail."
4. Section 1.10 is amended to add the following sentence at the
end of such section: "In the event of a conflict between the provisions of any
such rule or regulation and the provisions of this Lease (and all exhibits and
addenda attached hereto), the provisions of this Lease shall prevail and
control."
5. The third line of Section 1.11 is amended to insert the
following after "Thanksgiving Day": ", Xxxxxx Xxxxxx Xxxx, Xx.'s Birthday
(observed), Columbus Day, Veterans Day ...."
6. Section 1.13 is amended to insert the following before the
period at the end of such section: "Attention: Branch Manager, with a copy to
0000 Xxxxxxxx Xxxx., Xxxxxx Xxxxx, Xxx Xxxxxxx, XX 00000, Attention: Chief
Financial Officer."
7. A new Section 1.17 is inserted into the Lease, as follows:
1.17 BASE SHELL CONDITION. The term "Base Shell
Condition" shall mean the Premises, as modified by Landlord
upon the completion of the base building work to be performed
by Landlord as described in the Landlord's Work in Exhibit A
attached to the Addendum to Lease pursuasnt to which this
section is inserted into the Lease.
8. The first line of Section 2.01 is amended to insert the
following after "Lender hereby leases": "in Base Shell Condition, and inclusive
of all standard landlord representations and warranties, and with structural
integrity of the Building and the Premises".
9. Section 2.01 is amended to add the following at the end of
such section:
Tenant shall accept Landlord's tender of possession of the
Premises provided there are no material violations of
applicable laws (including, without limitation, hazardous
substances laws) other than as disclosed in the Asbestos
Notification attached hereto as Exhibit F and , Landlord
shall, at its sole cost and expense, shall cure any
undisclosed violations prior to delivering the Premises to
Tenant for the purpose of Tenant's performance of its portion
of the tenant improvement work.
1
10. A new Section 2.03 is inserted into the Lease, as follows:
2.03 THIRD PARTY AGREEMENTS. Landlord represents and warrants
to Tenant that the leasing of the Premises and the execution of the
Lease by Landlord and Tenant does not cause a default under any lease,
mortgage or deed of trust affecting the Premises, or under any other
agreement or document to which Landlord is a party that affects the
Building or the Premises
11. Section 3.01 is amended and restated in its entirety as
follows:
3.01 Except as otherwise provided in this Lease, the
Lease Term shall be for the period described in Section 1.04
of this Lease, commencing on the Commencement Date described
in Section 1.05 of this Lease and ending on the Expiration
Date described in Section 1.06 of this Lease; provided,
however, that, if, for any reason, Landlord is unable to
deliver possession of the Premises to Tenant in Base Shell
Condition on or before February 28, 2003, Landlord shall not
be liable for any damage caused thereby, nor shall the Lease
be void or voidable, but, rather, the Commencement Date shall
be extended by the same number of days as the number of days
between February 28, 2003 and the date that Landlord does
tender possession to Tenant of the Premises in Base Shell
Condition and, unless Landlord elects otherwise, the
Expiration Date described in Section 1.06 of this Lease shall
be extended by an equal number of days. NOTWITHSTANDING THE
FOREGOING, IF THE PREMISES ARE NOT DELIVERED IN BASE SHELL
CONDITION TO TENANT ON OR BEFORE APRIL 30, 2003, TENANT MAY,
WITHIN THE FOLLOWING FIFTEEN (15) BUSINESS DAYS, AT ITS SOLE
OPTION, TERMINATE THIS LEASE AND HAVE NO LIABILITY TO LANDLORD
HEREUNDER OR THEREFOR.
12. Landlord and Tenant agree that the Lease is a modified gross
lease and that, accordingly, (a) Section 4.01(C) is hereby amended to delete in
their entirety the following subsections: (ix) - (xv) and (b) subsection (iii)
is amended and restated in its entirety as follows: "(iii) Cleaning expenses,
including without limitation janitorial services and window cleaning.".
13. Section 4.02(B)(b), including its subsections (i) and (ii), is
deleted in its entirety. Landlord and Tenant agree that there shall be no
adjustment to rent based upon a consumer price index..
14. The first line of Section 4.03(B) is amended to delete "one
hundred twenty (120)" and to insert in its place and stead "ninety (90)".
15. The fourth line of the introductory paragraph of Section
4.04(A) is amended to delete "once" and to insert in its place and stead
"twice".
16. The first line of Section 4.04(A) is amended to delete "ten
(10)" and to insert in its place and stead "thirty (30)".
2
17. The eighth line of Section 4.04(A) is amended to delete "once"
and to insert in its place and stead "twice".
18. The fourth line of Section 4.04(B) is amended to delete "of
national standing".
19. The sixth line of Section 4.04(B) is amended to insert the
following after "accountants": "legal counsel and real estate representatives
....."
20. The eighth line of Section 4.04(C) is amended to insert the
following after "Adjustment" and before the period that ends the sentence: ";
provided, however, that if the review occurs during the final year of the term
(or any renewal term) of this Lease, Landlord shall provide the refund within
sixty (60) days following the expiration of the term of this Lease".
21. Section 4.05 is amended to add the following sentence at the
end of such section: Notwithstanding any of the provisions of this section or
this Lease to the contrary, if a condition exists as a result of Landlord's
gross negligence or willful misconduct that injures, inconveniences or
interferes with Tenant's ability to conduct its business or that constitutes a
default hereunder and such condition persists for more than five (5) consecutive
business days or such other period as may be permitted by applicable law,
Tenantshall have the right to damages for such default and such other remedies
as may be permitted by this Lease and applicable law.
22. The seventh and eighth lines of Section 4.06 are amended to
delete "twelve percent (12%)" and insert in its place and stead "ten percent
(10%)".
23. A new Section 4.09 is added to the Lease, as follows:
Section 4.09 EFFECT OF PROPOSITION 13 REASSESSMENT.
Notwithstanding anything to the contrary herein, or any
actions taken by Landlord relating the to the Premises, if any
portion of the Premises is reassessed due to a "change in
ownership," "new construction," or other reassessment within
the meaning of Section XIIIA of the California Constitution (a
"Reassessment"), Tenant shall bear taxes attributable to such
Reassessment only to the extent such reassessment is due to a
modification of the Premises by Tenant. Nothing in this
section shall exempt Tenant from bearing its share of the
annual increases provided by applicable laws attributable to
the Premises which would be assessed regardless of the
occurrence of such a Reassessment.
24. Section 5.01 is deleted in its entirety.
25. Section 6.02(A) is hereby amended to delete "Tenant shall" and
insert in their place and stead: "Landlord and Tenant shall
each have respective responsibilities (allocated to each based
upon the portion of the improvements for which each is
responsible to construct)".
26. THE LAST PARAGRAPH OF SECTION 7.01 IS DELETED IN ITS ENTIRETY.
27. The seventh line of Section 7.02 is amended to insert the
following after "Tenant" and before the period that ends the sentence: ";
provided, however, if a condition exists as a result of
3
Landlord's gross negligence or willful misconduct that injures, inconveniences
or interferes with Tenant's ability to conduct its business or that constitutes
a default hereunder and such condition persists for more than five (5)
consecutive business days or such other period as may be permitted by applicable
law, Tenantshall have the right to damages for such default and such other
remedies as may be permitted by this Lease and applicable law.
28. Section 8.01 is amended and restated, as follows:
8.01 LANDLORD'S OBLIGATIONS. Except as provided in Sections
8.02 and 8.03 below, Landlord shall maintain the Building in
reasonable order and repair throughout the Lease Term;
provided, however, that Landlord shall not be liable for any
failure to make any repairs or to perform any maintenance
unless such failure shall persist for more than five (5)
business days after written notice of the need for such
repairs or maintenance is given to Landlord by Tenant, or such
greater period provided Landlord has commenced to cure, and
diligently pursues same to completion; provided, however, that
Tenant shall have the right to damages for such default and
such other remedies as may be permitted by this Lease and
applicable law.
29. The second line of Section 8.03 is amended to delete
"twenty-four (24)" and insert in its place and stead "forty-eight (48)".
30. Section 8.03 is amended to add the following at the end of
such section:
Notwithstanding any other provisions hereof to the contrary,
except in the case of emergency, Landlord shall enter the
Premises only during normal business hours following the
giving of forty-eight (48) hours notice (which shall be in
writing, unless notice is given to Tenant's Chief Financial
Officer or the branch manager on the Premises, either of whom
may request that any oral notice be confirmed with a written
notice) and Landlord shall be accompanied by a representative
of Tenant (except that such restrictions shall not apply on
such days as the Premises are not open for the conduct of
Tenant's business or in the event of an emergency, in which
cases Landlord shall make reasonable efforts to give oral
notice to Tenant's Chief Financial Officer or the branch
manager on the Premises). Furthermore, in the event of an
emergency, Landlord's representative shall enter the Premises
only with the accompaniment of the appropriate third-party
emergency response official from the Los Angeles Fire
Department, Los Angeles Police Department, or other
appropriate governmental agency. All such entries shall be in
conformance with all applicable federal and state laws and
regulations.
31. Section 9.01 is amended to add the following at the end of
such section:
Landlord's approval shall not be required for any Alteration
that costs Tenant $20,000.00 or less (but Tenant shall provide
reasonable prior written notice of Tenant's intent to make or
permit to be made any such Alteration) unless such Alteration
causes or requires modification of any of Landlord's service
systems or affects the structural integrity of the Premises.
Further, if Landlord's approval is required by any provision
of this section, such approval shall be provided within thirty
(30) days after Tenant's request therefor, and such
4
approval shall not be unreasonably conditioned, withheld or
delayed.
32. Section 9.02 is amended to add the following at the end of
such section:
If any Alteration requires Landlord to enter the Premises,
such entry shall be subject to the requirements of the last
sentence of Section 8.03.
33. A new Section 9.05 is added to the Lease, as follows:
9.05 Tenant shall be responsible for the installation
of its vault and an automated teller machine ("ATM") within
the [Building lobby or the Premises] in accordance with the
provisions of this Article IX and such improvements shall be
subject to the provisions of this Section 9; provided,
however, that Tenant shall remove the ATM within thirty (30)
days following the expiration of the Lease, subject to
extension if necessary to satisfy all applicable laws.
Reasonable security for the use and operation of the vault and
the ATM shall be provided by Landlord throughout the term of
the Lease. Landlord shall have no duties to increase spending
on the security service as a result of the presence of the ATM
and the vault in the Premises, but the security provided by
Landlord for the Premises, as generally provided for herein,
shall include the ATM and the vault area (but Tenant
acknowledges that because the vault is within the Premises,
the Building's security guard cannot enter the Premises).
Landlord and Tenant shall use their best efforts to approve a
commercially reasonable location for Tenant's ATM, which
approval shall not be unreasonably conditioned, withheld or
delayed.
34. Section 10.01(A) is amended and restated in its entirety as
follows:
(A) Tenant agrees to protect, indemnify, hold
harmless and defend Landlord and any Successor Landlord (as
defined below) from and against any and all loss, cost,
damage, liability or expense, including reasonable attorneys'
fees, with respect to any claim of damage or injury to persons
or property at the Premises, caused by the gross negligence or
willful misconduct of Tenant or its authorized agents or
employees.
35. Section 10.01(B) is amended and restated in its entirety as
follows:
(A) Landlord agrees to protect, indemnify, hold
harmless and defend Tenant from and against any and all loss,
cost, damage, liability or expense, including reasonable
attorneys' fees, with respect to any claim of damage or injury
to persons or property at the Premises, caused by the gross
negligence or willful misconduct of Landlord or its authorized
agents or employees.
36. Section 10.06 is amended to add the following at the end of
such section:
The waivers contained in this Section 10.06 shall not apply to
any injury or loss caused by Tenant's or Landlord's gross
negligence or willful misconduct.
5
37. The first line of Section 11.02 is amended to insert the
following after "If": "25% or more of".
38. The first line of Section 11.02 is amended to insert the
following after "and": "Tenant elect not to repair".
39. The second line of Section 11.02 is amended to insert the
following before "opinion": "reasonable".
40. Section 11.04 is deleted in its entirety.
41. The fourth line of Section 12.01 is amended to insert the
following after "premises": "on the ground floor of the Building".
42. The first line of Section 12.02 is amended to insert the
following after "award": ", unless otherwise specified that the amount awarded
is to be shared between Tenant and Landlord for Tenant's relocation and
improvement costs".
43. The eighteenth line of Section 14.01 is amended to delete
"twenty (20) days" and insert in its place and stead "ten (10) business days".
44. Section 14.01 is amended to add the following at the end of
such section:
Notwithstanding any of the provisions of this section or this
Lease to the contrary, any change of ownership of Tenant due
to merger of Tenant into, or acquisition of Tenant by, another
financial institution shall not be deemed an assignment or
sublease for purposes of this Lease. Further, if Landlord's
approval is required by any provision of this section, such
approval shall not be unreasonably conditioned, withheld or
delayed.
45. The third and fourth lines of Section 14.02 are amended to
delete "in connection with Tenant's request for Landlord's consent" and insert
in its place and stead "a notice containing".
46. The first line of Section 14.03 is amended to delete "twenty
(20) business days" and to insert in its place and stead "fifteen (15) business
days".
47. The eighth line of Section 14.03 is amended to delete "twenty
(20) day period" and to insert in its place and stead "fifteen (15) business day
period".
48. Section 14.03 is amended to add the following at the end of
such section:
Landlord acknowledges that notwithstanding any of the
provisions of this section, (i) Landlord shall have no
recapture rights in the event of any change of ownership of
Tenant due to merger of Tenant into, or acquisition of Tenant
by, another financial institution (and that any such event
shall not be deemed an assignment or sublease, as provided in
Section 14.01) and (ii) the recapture process, including,
without limitation, timing requirements, shall be subject to
all applicable federal and state regulatory
6
requirements.
50. The second line of Section 15.01(A) is hereby amended insert
the following before the period at the end of such section: "or within five days
following when such payment is due".
51. Section 15.01 (D) is amended and restated in its entirety as
follows:
(D) The failure by Tenant to observe or perform
any other provision of this Lease to be observed or performed
by Tenant, other than those described in Sections 15.01(A),
15.01(B) or 15.01 (C) above, shall constitute a default by
Tenant under this Lease only if such failure shall continue
for a period of thirty (30) days (or the additional time, if
any, that is reasonably necessary to promptly and diligently
cure the failure) after Tenant receives written notice from
Landlord specifying the default. The notice shall give in
reasonable detail the nature and extent of the failure and
shall identify the Lease provision(s) containing the
obligation(s). If Tenant shall default in the performance of
any of its obligations under this Lease (after notice and
opportunity to cure as provided herein), Landlord may pursue
any remedies available to it under the law and this Lease,
except that, in no event, shall Tenant be liable for punitive
damages, lost profits, business interruption, speculative,
consequential or other such damages.
52. Section 15.01(E) is hereby amended to delete each occurrence
of the phrase "or its Guarantor".
53. The third, sixth, seventh and eighth lines of Section 15.01(E)
are hereby amended to delete "thirty (30)" and to insert in its place and stead
"ninety (90)".
54. The second line of Section 15.01(F) is hereby amended to
delete " or any Guarantor".
55. The introductory paragraph to Section 15.02 is amended and
restated in its entirety as follows:
15.02 LANDLORD'S RIGHT TO TERMINATE UPON TENANT
DEFAULT. In the event of any default by Tenant as provided in
Section 15.01 above, Landlord shall have the right to
terminate this Lease and recover possession of the Premises by
giving written notice to Tenant of Landlord's election to
terminate this Lease, in which event Landlord shall be
entitled to receive from Tenant, as provided in California
Civil Code Section 1951.2:
56. Section 15.04 is amended and restated in its entirety as
follows:
15.04 LANDLORD'S RIGHT TO CONTINUE LEASE UPON
TENANT DEFAULT. In the event of a default of this Lease and
abandonment of the Premises by Tenant, if Landlord does not
elect to terminate this Lease as provided in Section 15.02
above, (a) Landlord may from time to time, without terminating
this Lease, enforce all of its rights and remedies under this
Lease and (b) notwithstanding the timing requirements of
Section 14.02 above (i) Tenant may assign or sublet its
interest in the Premises by giving ten (10) days notice of the
proposed assignment or sublease and submitting the information
and
7
documents required by Section 14.02 above and (ii) Landlord
shall, within twenty (20) business days after Landlord's
receipt of all of the information and documents required by
Section 14.02 above, approve or disapprove the proposed
assignment or sublease (with approval by Landlord not being
unreasonably withheld) or exercise its recapture rights under
Section 14.03 above. Without limiting the foregoing, Landlord
has the remedy described in California Civil Code Section
1951.4 (Landlord may continue this Lease in effect after
Tenant's default and abandonment and recover Rent as it
becomes due, if Tenant has the right to Transfer, subject to
reasonable limitations). In the event Landlord re-lets the
Premises, to the fullest extent permitted by law, the proceeds
of any reletting shall be applied first to pay to Landlord all
costs and expenses of such reletting (including without
limitation, costs and expenses of retaking or repossessing the
Premises, removing persons and property therefrom, securing
new tenants, including expenses for redecoration, alterations
and other costs in connection with preparing the Premises for
the new tenant, and if Landlord shall maintain and operate the
Premises, the costs thereof) and receivers' fees incurred in
connection with the appointment of and performance by a
receiver to protect the Premises and Landlord's interest under
this Lease and any necessary or reasonable alterations;
second, to the payment of any indebtedness of Tenant to
Landlord other than Rent due and unpaid hereunder; third, to
the payment of Rent due and unpaid hereunder; and the residue,
if any, shall be held by Landlord and applied in payment of
other or future obligations of Tenant to Landlord as the same
may become due and payable, and Tenant shall not be entitled
to receive any portion of such revenue.
57. Section 15.05 is amended and restated in its entirety as
follows:
15.05 RIGHT OF LANDLORD TO PERFORM. All covenants
and agreements to be performed by Tenant under this Lease
shall be performed by Tenant at Tenant's sole cost and
expense. If Tenant shall fail to pay any sum of money, other
than Rent, required to be paid by it hereunder or shall fail
to perform any other act on its part to be performed
hereunder, Landlord may, but shall not be obligated to, make
any payment or perform any such other act on Tenant's part to
be made or performed, without waiving or releasing Tenant of
its obligations under this Lease. Any sums so paid by Landlord
and all necessary incidental costs (including, without
limitation, reasonable attorneys fees), together with interest
thereon at the lesser of the maximum rate permitted by law if
any or eight percent (8%) per annum from the date of such
payment, shall be payable to Landlord as additional rent on
demand and Landlord shall have the same rights and remedies in
the event of nonpayment as in the case of default by Tenant in
the payment of Rent. If Tenant successfully disputes any sums
paid by Landlord pursuant to this Section, Tenant shall be
entitled to recover any and all such sums paid by Tenant to
Landlord pursuant to this Section, including any and all
interest, and shall be entitled to payment of its costs and
attorneys fees and other amounts recoverable under this Lease
by Tenant as the prevailing party in such dispute.
58. The first line of Section 15.02(D) is amended to insert the
following after "other": "reasonable".
59. Section 15.06 is deleted in its entirety.
8
60. Section 17.01 and Section 17.02 are amended and restated in
their entirety as follows:
17.1 SUBORDINATION. This Lease, and the rights of
Tenant hereunder, are and shall be subject and subordinate to
the interest of (i) all present and future ground leases and
master leases of all or any part of the Building; (ii) present
and future mortgages and deeds of trust encumbering all or any
part of the Building; (iii) all past and future advances made
under any such mortgages or deeds of trust; and (iv) all
renewals, modifications, replacements and extensions of any
such ground leases, master leases, mortgages and deeds of
trust; provided, however, that as a condition precedent to
Tenant's subordination of this Lease, Landlord shall obtain
nondisturbance and attornment agreements in commercially
reasonable form from the landlord under any such ground lease
or master lease and from the holders of any such mortgages and
deeds of trust, as applicable. Further, any lessor under any
such ground lease or master lease or any mortgagee or
beneficiary under any such mortgage or deed of trust (any such
lessor, mortgagee or beneficiary is hereinafter referred to as
a "Mortgagee") shall have the right to elect, by written
notice given to Tenant, to have this Lease made superior in
whole or in part to any such ground lease, master lease,
mortgage or deed of trust (or subject and subordinate to such
ground lease, master lease, mortgage or deed of trust but
superior to any junior mortgage or junior deed of trust). Upon
demand, Tenant shall execute, acknowledge and deliver any
instruments reasonably requested by Landlord or any such
Mortgagee to effect the purposes of this Section 17.01. Such
instruments may contain, among other things, provisions to the
effect that such Mortgagee (hereafter, for the purposes of
this Section 17.01, a "Successor Landlord") shall (i) not be
liable for any act or omission of Landlord or its
predecessors, if any, prior to the date of such Successor
Landlord's succession to Landlord's interest under this
Lease; and (ii) be entitled to receive notice of any Landlord
default under this Lease plus a reasonable opportunity to cure
such default prior to Tenant having any right or ability to
terminate this Lease as a result of such Landlord default.
Any obligations of any Successor Landlord under its respective
lease shall be non-recourse as to any assets of such Successor
Landlord other than its interest in the Premises and
improvements.
17.2 ATTORNMENT. If the interests of Landlord
under the Lease shall be transferred to any superior Mortgagee
or other purchaser or person taking title to the Building by
reason of the termination of any superior lease or the
foreclosure of any superior mortgage or deed of trust, and if
such superior Mortgagee or other purchaser or person taking
title to the Building shall not disturb Tenant, Tenant shall
be bound to such Successor Landlord under all of the terms,
covenants and conditions of the Lease for the balance of the
term thereof remaining and any extensions or renewals thereof
which may be effected in accordance with any option therefor
in the Lease, with the same force and effect as if Successor
Landlord were the landlord under the Lease, and Tenant shall
attorn to and recognize as Tenant's landlord under this Lease
such Successor Landlord, as its landlord, said attornment to
be effective and self-operative without the execution of any
further instruments upon Successor Landlord's succeeding to
the interest of Landlord under the Lease. Tenant shall, upon
demand, execute any documents reasonably requested by any such
person to evidence the attornment described in this Section
17.02.
9
Concurrently, upon written request from Tenant, and provided
Tenant is not in default under this Lease, Landlord agrees to
use diligent, commercially reasonable efforts to obtain a
commercially reasonable Non-Disturbance Agreement from the
Successor Landlord. Such Non-Disturbance Agreement may be
embodied in the Mortgagee's customary form of Subordination
and Non-Disturbance Agreement if such form is commercially
reasonable. If, after exerting diligent, commercially
reasonable efforts, Landlord is unable to obtain a
Non-Disturbance Agreement from any such Mortgagee, Landlord
shall have no further obligation to Tenant with respect
thereto.
61. The fifth and seventh lines of Section 17.03 are hereby
amended to delete " twenty (20)" and to insert in its place and stead "thirty
(30)".
62. Section 21.01 is amended and restated in its entirety as
follows:
21.01 Landlord may enter the Premises during
normal business hours following the giving of forty-eight (48)
hours notice (which shall be in writing, unless notice is
given to Tenant's Chief Financial Officer or the branch
manager on the Premises, either of whom may request that any
oral notice be confirmed with a written notice) and Landlord
shall be accompanied by a representative of Tenant (except
that such restrictions shall not apply on such days as the
Premises are not open for the conduct of Tenant's business or
in the event of an emergency) to: inspect the same; exhibit
the same to prospective purchasers, Mortgagees or tenants;
determine whether Tenant is complying with all of its
obligations under this Lease; post notices of
non-responsibility; and make repairs or improvements in or to
the Building or the Premises; provided, however, that all such
work shall be done as promptly as reasonably possible and so
as to cause as little interference to Tenant as reasonably
possible. Tenant hereby waives any claim for damages for any
injury or inconvenience to, or interference with, Tenant's
business, any loss of occupancy or quiet enjoyment of the
Premises or any other loss on or about the Premises (excluding
Tenant's vaults, safes and similar areas designated by Tenant
in writing in advance) resulting from such entry (except if
such damages are the result of Landlord's gross negligence or
willful misconduct). In the event of an emergency, Landlord
shall make reasonable efforts to give oral notice to Tenant's
Chief Financial Officer or the branch manager on the Premises
and Landlord shall have the right to use any and all means by
which Landlord may deem proper to open such doors to obtain
entry to the Premises, and any entry to the Premises obtained
by Landlord by any such means, or otherwise, shall not under
any circumstances be deemed or construed to be a forcible or
unlawful entry into or a detainer of the Premises or an
eviction, actual or constructive, of Tenant from any part of
the Premises. Furthermore, in the event of an emergency,
Landlord's representative shall enter the Premises only with
the accompaniment of the appropriate third-party emergency
response official from the Los Angeles Fire Department, Los
Angeles Police Department, or other appropriate governmental
agency. All such entries shall be in conformance with all
applicable federal and state laws and regulations. An
emergency entry by Landlord shall not act as a termination of
Tenant's duties under this Lease. IF LANDLORD SHALL BE
REQUIRED TO OBTAIN ENTRY BY MEANS OTHER THAN A KEY PROVIDED BY
TENANT, THE COST OF SUCH ENTRY SHALL BY PAYABLE BY TENANT.
10
63. Section 22.01 and Section 22.02 are amended and restated in
their entirety as follows:
22.01 LANDLORD'S LEASE UNDERTAKINGS.
Notwithstanding anything to the contrary contained in this
Lease or in any exhibits, Riders or addenda hereto attached
(collectively the "Lease Documents"), it is expressly
understood and agreed by and between the parties hereto that:
(a) the recourse of Tenant or its successors or assigns
against Landlord with respect to the alleged breach by or on
the part of Landlord of any representation, warranty,
covenant, undertaking or agreement contained in any of the
Lease Documents or otherwise arising out of Tenant's use of
the Premises or the Building (collectively, "Landlord's Lease
Undertakings") shall extend only to an amount equal to the
value of Landlord's interest in the real estate of which the
Premises demised under the Lease Documents are a part
("Landlord's Real Estate") and not to any other assets of
Landlord or its officers, directors or shareholders; and (b)
except for an amount equal to to the value of Landlord's
interest in Landlord's Real Estate, no personal liability or
personal responsibility of any sort with respect to any of
Landlord's Lease Undertakings or any alleged breach thereof is
assumed by, or shall at any time be asserted or enforceable
against, Landlord, or against any of their respective
directors, officers, employees, agents, constituent partners,
beneficiaries, trustees or representatives.
22.02 TRANSFER OF LANDLORD'S INTEREST. In the
event of any transfer of Landlord's interest in the Building,
Landlord shall be automatically freed and relieved from all
applicable liability (unless the occurrence upon which the
claim of liability is based occurred prior to the transfer)
with respect to performance of any covenant or obligation on
the part of Landlord, provided any deposits or advance rents
held by Landlord are turned over to the grantee and said
grantee expressly assumes, subject to the limitations of this
Section 22, all the terms, covenants and conditions of this
Lease to be performed on the part of Landlord, including all
liability for performance of any covenant or obligation from
which Landlord is released pursuant to this Section.
64. The fourth line of Section 23.01 is hereby amended to delete
" Two hundred percent (200%) and to insert in its place and stead One hundred
fifty percent (150%)".
65. The fourth line of Section 26.01 is hereby amended to delete
"may be conditioned as required by Landlord" and to insert the following in its
place and stead: "shall not be unreasonably conditioned, delayed or withheld".
66. Section 26.01 is amended to add the following at the end of
such section:
In the event that Tenant requires access to or space on the
top of the roof of the Building in connection with the
activities contemplated in this section in connection with
Lines, or elsewhere outside the Premises, then subject to
availability and the rights of any tenants under leases
executed before this Lease, Tenant shall provide plans or
specifications, as applicable, for such activities and request
Landlord's approval for such access, which
11
approval shall not be unreasonably conditioned, delayed or
withheld. Such access shall not be denied if it will not be
disruptive to the Building's communications systems or cause
undue risk to Landlord or other Tenants of the Building.
Tenant shall pay to Landlord such fees as are reasonable
(which reasonableness shall be determined by comparison to the
fees charged by comparable buildings in the area) for such
access and use of the Building's rooftop and the Premises'
rooftop. Tenant's right to access and use of the Building's
rooftop and Premises' rooftop is subject to the rights of
other tenants in the Building whose leases existed prior to
the date of this Lease.
67. Section 26.04 is amended to add the following before the
period at the end of such section:
except to the extent that such Line Problems are caused by
Landlord's gross negligence or willful misconduct
68. Section 26.05 is amended to add the following before the
period at the end of such section:
"Reasonable notice" of an interruption or turning off of the
Electronic Services facilities shall be forty-eight (48) hours
prior notice, except in the case of emergencies, in which
event Landlord shall give to Tenant as much notice as is
reasonably possible. In addition, Landlord shall use its best
efforts to schedule any such interruptions for times other
than Tenant's business hours.
69 Section 26.07 is amended to add the following at the end of
such section:
Notwithstanding any of the provisions of this section,
Landlord agrees that Tenant will provide to Landlord a list of
Electronic Service Providers customarily used by Tenant and
that Landlord will not unreasonably condition, delay or
withhold its approval thereof and that further, in the event
that Landlord does withhold its approval, Landlord and Tenant
will meet to discuss and resolve in good faith Landlord's
objections.
70. Section 26.09 is amended and restated as follows:
26.09 INSTALLATION AND USE OF WIRELESS
TECHNOLOGIES. Tenant may utilize any wireless Electronic
Services equipment (including the usual and customary cellular
telephones), including antennae and satellite receiver dishes,
within the Tenant's premises, within the Building or attached
to the outside walls or roof of the Building, without
Landlord's prior written consent unless such equipment
adversely affects the Building or the conduct of business by
other tenants of the Building.
71. [INTENTIONALLY OMITTED.]
72. Section 28.04 is amended and restated in its entirety as
follows:
28.04 FORCE MAJEURE. Landlord and Tenant shall
incur no liability to each other with respect to, and shall
not be responsible for any failure to perform, any of their
obligations hereunder if such failure is caused by any reason
beyond the control of the
12
party having the obligation, including, but not limited to,
strike, labor trouble, governmental rule, regulations,
ordinance, statute or interpretation, or by fire, earthquake,
civil commotion, or failure or disruption of utility services.
The amount of time for the party having such obligation to
perform any such shall be extended by the amount of time such
party is delayed in performing such obligation by reason of
any force majeure occurrence whether similar to or different
from the foregoing types of occurrences.
73. Section 28.06 is amended and restated in its entirety as
follows:
28.06 LIGHT AND AIR. No diminution or shutting off
of any light, air or view by any structure erected or modified
by a third party, whether now or hereafter erected shall in
any manner affect this Lease or the obligations of Tenant
hereunder, or increase any of the obligations of Landlord
hereunder. Landlord shall not, however, by its acts or the
acts of its employees, agents, contractors or representatives,
cause any diminution or shutting off of any light, air or view
of Tenant or the view of any persons outside the Building of
the Building or any of Tenant's signs on the Building.
74. Section 28.07 is amended to add the following at the end of
such section:
LANDLORD AND TENANT EACH WAIVE ANY RIGHT TO A TRIAL BY JURY IN
ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER
THIS LEASE OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR
AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN
CONNECTION HEREWITH AND AGREE THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT A JURY.
75. Section 28.19 is amended to add the following at the end of
such section:
Notwithstanding any of the provisions of this section, Tenant
may, in its sole discretion, (a) install, affix and maintain
signs pertaining to advertising or marketing campaigns of
Tenant within the Premises without the consent of Landlord;
(b) install signs on, and have exclusive signage rights to all
sides of the exterior of the Premises, and (c) install,
operate and maintain security systems within the Premises
without the consent of Landlord; provided, however, that if
any signs or security systems affect or require modification
of any of the Building's systems, Landlord's prior consent
shall be required, which consent shall not be unreasonably
conditioned, withheld or delayed.
76. The first line of the fourth paragraph of Section 1 of the
portion of the Work Letter Agreement attached to the Lease as Exhibit B
[Landlord Performs Work] [Minor Work Only] is hereby amended (a) to delete
"Work" and insert "the portion of the Work necessary to deliver the Premises to
Tenant in Base Shell Condition" and (b) to delete "Commencement Date" and insert
in its place and stead "February 28, 2003".
77. The first line of the subsection (a) of Section 2 of the
portion of the Work Letter Agreement attached to the Lease as Exhibit B [Tenant
Performs Work] is hereby amended to delete
13
"February 14, 2003" and insert in its place and stead "February 28,2003".
78. Subsection (a)(iii) of Section 2 of the portion of the Work
Letter Agreement attached to the Lease as Exhibit B [Tenant Performs Work] is
hereby amended and restated in its entirety as follows:
(iii) Tenant shall provide Landlord financial
statements as proof of its ability to pay the cost of the Work
as and when payments become due.
79. Subsection (a)(iv) of Section 2 of the portion of the Work
Letter Agreement attached to the Lease as Exhibit B [Tenant Performs Work] is
hereby amended to add the following at the end of such subsection:
Tenant shall submit to Landlord a list of proposed vendors for
Landlord's approval, which shall not be unreasonably withheld,
conditioned or delayed.
80. The fifteenth and sixteenth lines of subsection (b) of Section
2 of the portion of the Work Letter Agreement attached to the Lease as Exhibit B
[Tenant Performs Work] is hereby amended to delete therefrom "or the Work is
prohibited by any mortgage or trust deed encumbering the Building".
81. The eighteenth line of subsection (b) of Section 2 of the
portion of the Work Letter Agreement attached to the Lease as Exhibit B [Tenant
Performs Work] is hereby amended to delete "three (3)" and insert in its place
and stead "seven (7)".
82. Subsection (c)(iii) of Section 2 of the portion of the Work
Letter Agreement attached to the Lease as Exhibit B [Tenant Performs Work] is
hereby deleted in its entirety.
83. The first line of Section 5 of the portion of the Work Letter
Agreement attached to the Lease as Exhibit B [Tenant Performs Work] is hereby
amended to delete "All changes" and to insert in its place and stead "All
material changes".
84. The second, third and fourth lines of Section 6(e) of the
portion of the Work Letter Agreement attached to the Lease as Exhibit B [Tenant
Performs Work] are hereby amended to delete "in a good and workmanlike manner"
and the remainder of such section and to insert in its place and stead "in a
good and workmanlike manner, using first class commercial materials".
85. The third line of Section 6(g) of the portion of the Work
Letter Agreement attached to the Lease as Exhibit B [Tenant Performs Work] is
hereby amended to delete "from the building" and to insert in its place and
stead "from the building provided that Landlord has provided to Tenant written
notice and the opportunity to cure within five (5) business days".
86. The third line of Section 6(h) of the portion of the Work
Letter Agreement attached to the Lease as Exhibit B [Tenant Performs Work] is
hereby amended to delete "standard rates then in effect" and to insert in its
place and stead "actual cost plus an administrative fee of 7% of that cost".
14
87. The fourth and fifth lines of Section 6(h) of the portion of
the Work Letter Agreement attached to the Lease as Exhibit B [Tenant Performs
Work] is hereby amended to delete in its entirety the sentence beginning with
"Tenant shall pay".
88. Section 6(i) of the portion of the Work Letter Agreement
attached to the Lease as Exhibit B [Tenant Performs Work] is hereby amended to
add the following before the period at the end of such section:
", provided that Landlord's review does not materially
interfere or cause any delay of Tenant's work on the
Premises."
89. The second line of Section 6(j) of the portion of the Work
Letter Agreement attached to the Lease as Exhibit B [Tenant Performs Work] is
hereby amended to delete "twenty-one (21) days" and to insert in its place and
stead "four (4) months".
90. The first line of Section 6(k) of the portion of the Work
Letter Agreement attached to the Lease as Exhibit B [Tenant Performs Work] is
hereby amended to delete "have no authority to" and to insert in its place and
stead "shall not materially".
91. The first line of Section 6(l) of the portion of the Work
Letter Agreement attached to the Lease as Exhibit B [Tenant Performs Work] is
hereby amended to insert "at it sole cost and expense" after "run".
92. The ninth line of Section 7(b) is hereby amended to insert the
following after "others" and before the period:
; provided, however, that Tenant shall have no obligation to
indemnify, protect, defend or hold harmless Landlord, the
parties listed, or required by, the Lease to be named as
additionally-insured, Landlord's contractors, Landlord's
architects, or their respective beneficiaries, partners,
directors, officers, employees and agents, from and against
any claims, liabilities, losses, damages and expenses of
whatever nature arising out any of such parties' gross
negligence or willful misconduct.
93. Section 9 of the portion of the Work Letter Agreement attached
to the Lease as Exhibit B [Tenant Performs Work] is hereby deleted in its
entirety.
94. The third line of subsection (f) of Section 10 of the portion
of the Work Letter Agreement attached to the Lease as Exhibit B [Tenant Performs
Work] is hereby amended to delete "and enforceable solely against" and insert
the following in its place and stead "an amount equal to the value of".
95. The second sentence of Section 11 of the portion of the Work
Letter Agreement attached to the Lease as Exhibit B [Tenant Performs Work] is
deleted in its entirety.
96. [INTENTIONALLY OMITTED.]
15
97. Section 2 of the Rules and Regulations attached to the Lease
as Exhibit C is amended to add the following at the end of such section:
Notwithstanding the other provisions of this section, Tenant
may attach promotional and marketing materials within the
Premises and in the windows of the Premises provided that such
materials do not damage the Premises or materially disrupt
Landlord's operation and maintenance of the Building or the
conduct of the business of other tenants of the Building.
98. The first line of Section 6 of the Rules and Regulations
attached to the Lease as Exhibit C is amended to add the following after
"Premises": "except as reasonably necessary to accommodate the special needs of
customers of Tenant who or disabled or handicapped, which exceptions shall
include permitting seeing eye dogs and wheelchairs to enter the Premises."
99. Section 10 of the Rules and Regulations attached to the Lease
as Exhibit C is amended to add the following before the period at the end of
such section: "provided, however, that Tenant may maintain armed security in or
about the Premises if such armed security is properly licensed and if Tenant
pays to Landlord an amount equal to any increase in Landlord's insurance
premiums resulting from Tenant's maintaining such armed security."
100. Section 14 of the Rules and Regulations attached to the Lease
as Exhibit C is amended to add the following at the end of such section:
Notwithstanding the foregoing, Tenant shall provide to
Landlord a list of approved providers of such services and
Tenant shall request Landlord's approval to utilize the
services of such providers, which approval shall not be
unreasonably conditioned, delayed or withheld In the event
that Landlord does withhold its approval, Landlord and Tenant
will meet to discuss and resolve in good faith Landlord's
objections.
101. The second line of Section 16 of the Rules and Regulations
attached to the Lease as Exhibit C is amended to delete "Saturdays".
102. The second line of Section 18 of the Rules and Regulations
attached to the Lease as Exhibit C is amended to delete "and left locked when
not in use".
103. Section 19 of the Rules and Regulations attached to the Lease
as Exhibit C is amended and restated in its entirety as follows:
19. Any special requirements of Tenant in
connection with the Premises that are not expressly provided
for in this Lease or that are not implied as a matter of law
will be attended to only upon application to the Office of the
Building.
104. Section 21 of the Rules and Regulations attached to the Lease
as Exhibit C is amended and restated in its entirety as follows:
21. All office equipment of any electrical or
mechanical nature which causes
16
noise or adversely affects other tenants of the Building shall
be placed by Tenant in the Premises in settings approved by
Landlord (which shall not be unreasonably conditioned, delayed
or withheld) to absorb or prevent any vibration, noises or
annoyance.
105. Section 26 of the Rules and Regulations attached to the Lease
as Exhibit C is amended to end the first sentence thereof by inserting a period
after "cooling system" in the second line of such section.
106. A new paragraph is added to the second page of the Asbestos
Notification attached to the Lease as Exhibit F as follows:
If Tenant desires to xxxxx the presence of asbestos within the
Premises, it may do so at its sole expense but it shall do so in
compliance with all applicable laws and without material disruption of
the business of the Building or any of the tenants of the Building. In
addition, Tenant shall use contractors approved by Landlord, which
approval shall not be unreasonably conditioned, delayed or withheld.
107. The fifth and sixth lines of the first paragraph of the
Parking Agreement attached to the Lease as Exhibit G is amended to delete "on a
month to month basis" and insert the following in its place and stead:
"throughout the term of this Lease and any renewal period thereof. Tenant may
purchase up to 50 passes per month at Tenant's sole option".
108. The eighth line of the first paragraph of the Parking
Agreement attached to the Lease as Exhibit G is amended to add the following
after "spaces": "as shown on the Parking Plan for the Building, a copy of which
has been provided by Landlord to Tenant and attached hereto as Schedule 1 to
Exhibit G."
109. The ninth line of the first paragraph of the Parking Agreement
attached to the Lease as Exhibit G is amended to add the following after
"visitors": "which shall be prominently marked as being Reserved for Nara Bank
Customers Only".
110. The fourteenth line of the first paragraph of the Parking
Agreement attached to the Lease as Exhibit G eventh paragraph below the caption
PARKING RULES AND REGULATIONS is amended to insert the following after "notice":
"and the passage of an additional fifteen (15) day period within which Tenant
shall have the right to cure such violation."
111. The third line of the seventh paragraph below the caption
PARKING RULES AND REGULATIONS of the Parking Agreement attached to the Lease as
Exhibit G is hereby amended to delete "$25.00" and to insert in it place and
stead "$10.00, except that such amount shall not be due and payable the first
time that such a violation occurs."
112. Section 1 of Addendum I is hereby amended to add the following
at the end of such section:
Tenant shall have the option to use its own window cleaning
vendor, subject to Landlord approval, which shall not be
unreasonably conditioned, delayed or withheld.
17
113. The second line of Addendum I is hereby amended to delete
"from March 1, 2003 through June 30, 2003" and to insert the following in its
place and stead: "from the date that Landlord delivers possession of the
Premises to Tenant in Base Shell Condition through the date that is four months
later".
114. Section 4 of Addendum I is hereby amended to add the following
at the end of such section: "Notwithstanding any of the provisions of this
Section 4 and Section 3 above, Tenant's obligation to maintain the plumbing and
pest control shall be on an annual basis or as otherwise reasonably needed."
115. Section 5 of Addendum I is hereby amended to add the following
at the end of such section:
Notwithstanding the foregoing, following the Commencement
Date, Tenant shall pay no more than $100 per month for trash
removal unless Landlord can provide to Tenant reasonable
substantiation of a higher cost attributable to Tenant.
116. The tenth line of Section 7 of Addendum I is hereby amended to
add the following after "illuminated": "or non-illuminated".
117. Section 9 of Addendum I is hereby amended to add the following
before the period at the end of section: ", unless such interruption is the
result of Landlord's gross negligence or willful misconduct".
118 Section 12 of Addendum I is hereby amended to add the
following at the end of such section:
The current HVAC system was installed in________, and
has been maintained as reasonably necessary for its usage and
to the knowledge of Landlord, is appropriate for the Premise
as the Premises will be used by Tenant
119. Section 13 of Addendum I is hereby amended to delete from the
first sentence thereof the first three lines thereof and the portion of the
fourth line thereof ending with ""Lease Term" and to insert the following in its
place and stead: "Provided that Tenant is not in material breach of the Lease at
the time for renewal thereof".
120. The ninth line of Section 13 of Addendum I is hereby amended
to delete "located in the Building" and to insert in its place and stead:
"competitive buildings within an [arm's length distance".]
121. Addendum I is hereby amended to delete therefrom all
references to "Proposed Renewal Rental" and to insert in its place and stead
"Proposed Rental Rate".
122. Section 16 of Addendum I is hereby deleted in its entirety.
123. The second paragraph of Section 16 of Addendum I is hereby
amended to add the
18
following at the end of such section: "Tenant's Renewal Option shall extend to
any entity or person acquiring Tenant or its holding company, as applicable,
during the initial term of this Lease or during any extension thereof."
124. LANDLORD AND TENANT HEREBY AGREE THAT TENANT IS A BANK AND
THAT NOTWITHSTANDING ANY OF THE OTHER PROVISIONS OF THE LEASE: (i) TENANT CANNOT
CEASE TO OPERATE ITS BUSINESS ON THE PREMISES FOR MORE THAN 3 CONSECUTIVE DAYS
AND LANDLORD SHALL TAKE ALL STEPS NECESSARY TO ASSURE THAT TENANT IS ABLE TO BE
OPEN FOR BUSINESS IN COMPLIANCE WITH SUCH REQUIREMENT; (ii) THE TERM HEREOF
SHALL NOT COMMENCE UNTIL TENANT HAS RECEIVED ALL NECESSARY APPROVALS FROM
APPLICABLE FEDERAL OR STATE BANKING AUTHORITIES TO OPERATE A BANK BRANCH WITHIN
THE PREMISES AND TENANT SHALL HAVE THREE MONTHS' FREE RENT FROM LANDLORD'S
TENDER OF POSSESSION OF THE PREMISES IN BASE SHELL CONDITION; AND (iii) ANY
ATTEMPTED TERMINATION OF THE LEASE BY LANDLORD SHALL NOT BE EFFECTIVE UNTIL SUCH
TIME AS ALL FEDERAL AND STATE REGULATORY REQUIREMENTS FOR THE CLOSURE OF THE
BRANCH TO BE OPERATED WITHIN THE PREMISES HAVE BEEN SATISFIED.
[signatures follow]
19
Landlord:
3600 Wilshire, LLC
By: /s/ [ILLEGIBLE]
--------------------
Its: President
Tenant:
Nara Bank, National Association
By: /s/ [ILLEGIBLE]
---------------------
Its: CFO & EVP
2/6/03
By: /s/ [ILLEGIBLE]
---------------------
Its: Director of Legal Affairs
2/6/03
20
EXHIBIT A
----------------------------------------------------------------------------------------
SECTION I. BASE BUILDING CONSTRUCTION
----------------------------------------------------------------------------------------
A. Concrete and Steel Fire resistant or non-combustible
Construction construction (i.e., concrete slab with
fire rated structural steel beam &
column supports, etc.). existing
----------------------------------------------------------------------------------------
B. Slab to underside of Minimum 2'-6" to 3'0" clearance to
deck height the underside of beams. existing
----------------------------------------------------------------------------------------
C. Floor Load 50 lbs. per sq. ft. Live Load, 20 lbs.
per sq. ft. Dead Load existing
----------------------------------------------------------------------------------------
D. Materials and Build using appropriate materials of
warrantee high quality and durability to provide
a low-maintenance barrier to the
elements. Landlord shall warrantee
performance for the term of the lease
against leakage and other failure. existing
----------------------------------------------------------------------------------------
E. Codes and Designed in accordance with governing
compliance Codes, (i.e., municipal, state and/or
federal, B.O.C.A., U.B.C., etc.),
with respect to Live Loading,
including loads due to hurricanes,
earthquake, and the accumulation of
snow, ice and water. existing
----------------------------------------------------------------------------------------
F. Dunnage Include the installation of dunnage of
other supports required for
roof-mounted Base Building HVAC,
Tenant Supplemental AC, and other
equipment as required. existing
----------------------------------------------------------------------------------------
G. Satellite dish Allow access and support for
roof-mounted Tenant satellite dish
and provide penetrations for
connections to such devises from the
Tenant Premises, in lease
----------------------------------------------------------------------------------------
H. Base building shell Base building shell must be fully
insulated and weatherproofed in
accordance with applicable Codes to
avoid excessive transfer of heat,
cold and moisture. existing
----------------------------------------------------------------------------------------
I. Roof Roof must be designed to provide
for proper drainage and to prevent
accumulation of runoff around the
building. existing
----------------------------------------------------------------------------------------
J. Concrete Slab or Insulation as required for
Metal Deck prevention of heat loss and heat
gain. existing
----------------------------------------------------------------------------------------
K. Slab Condition Smooth and level, pitch not to
exceed 1/2 inch for every 10 ft. in
every direction. existing
----------------------------------------------------------------------------------------
L. Slab Seal to avoid moisture permeation
from hydrostatic pressure if on grade.
Insulation as required if open garage
above or below. existing
----------------------------------------------------------------------------------------
M. Exterior Wall Fire resistant on non-combustible
Finishes fire rated construction (i.e.,
glass, metal, stone or masonry
facade). existing
----------------------------------------------------------------------------------------
N. Windows Non-operable double glazed
E-reflective energy efficient units. existing
----------------------------------------------------------------------------------------
O. Tint Contingent upon orientation and/or
applicability of National Energy
Conservation Code. existing
----------------------------------------------------------------------------------------
P. Window Module Size 5'-0" wide on center. existing
----------------------------------------------------------------------------------------
X. Xxxx Height 30" -32" AFF. existing
----------------------------------------------------------------------------------------
R. Window Height To finished ceiling (8'-6" minimum). existing
----------------------------------------------------------------------------------------
21
----------------------------------------------------------------------------------------
S. Window Treatment Mini-blinds or building standard
blinds.
----------------------------------------------------------------------------------------
T. Interior surfaces All interior surfaces (exterior
walls, interior walls and columns)
shall be insulated drywall, taped,
spackled and primed, ready to receive
Tenant's finishes. existing
----------------------------------------------------------------------------------------
U. Doors Main entry doors and rear egress doors
in place with lock sets (dead bolt)
and/or panic hardware as required to
meet applicable Building and Fire
Codes. existing
----------------------------------------------------------------------------------------
22
--------------------------------------------------------------------------------------------------
SECTION II. BASE BUILDING HVAC
--------------------------------------------------------------------------------------------------
A. Variable Air 1.75 CFM per sq. ft. with air
Volume Base temperature of 55-57 degrees
Fahrenheit at main distribution
points of delivery (shaft). Air
distribution by V.A.V. system with a
minimum of 20 CFM of outside air per
person based upon a design of one
person per 100 useable square feet.
Main trunk live, in place for
Tenant's distribution. Landlord
--------------------------------------------------------------------------------------------------
B. Type of exterior The system shall produce interior
perimeter HVAC temperatures in the Premises at all
system times and in all weather conditions
of 72 degrees Fahrenheit with a
corresponding relative humidity of
fifty (50%) percent plus or minus
five (5%) percent. Landlord
--------------------------------------------------------------------------------------------------
C. Return Air Plenum Included as part of the base building
HVAC system, (preferred system).
Landlord shall provide a Base Building
HVAC system designed where the return
air is ducted, only if it is a
non-return air plenum, from occupied
space to the air handling unit. Landlord
--------------------------------------------------------------------------------------------------
D. 24 Hour-Supplemental Landlord shall provide a minimum of 5
AC tons for Tenant's Telecommunications
Equipment Room 24 hours per day, seven
days per week, 365 days per year. If
roof or attic mounted, Landlord to
design for adequate structural
support, including dunnage, pads and
penetrations in place as per Tenant
Plans and Specifications. If mounted
on grade, Landlord to provide supports
including pad design. Landlord to
furnish and install underground
conduits for power, refrigerant and
all other related services from pads
into Tenant's demised Premises for
Tenant connection as required.
Equipment area shall be surrounded
with enclosure that compliments
architecture, site, landscape and
design. Tenant responsible
--------------------------------------------------------------------------------------------------
E. Connection for In multi-tenant building, Landlord to
Supplemental AC provide condenser water or chilled
water tap connection on floor of
demised Premises for Tenant tie-in. Tenant responsible
--------------------------------------------------------------------------------------------------
F. Condenser
Water/Chilled Provided 24 hours per day, seven
Water days per week, 365 days per year. Tenant responsible
--------------------------------------------------------------------------------------------------
23
--------------------------------------------------------------------------------------------------
SECTION III. BASE BUILDING ELECTRICAL
--------------------------------------------------------------------------------------------------
A. Wattage Six (6) xxxxx per RSF (less base
building and HVAC) available at panel
on floor for distribution by Tenant in
multi-tenant buildings. Eight (8)
xxxxx per RSF in sole occupancy
buildings. existing
--------------------------------------------------------------------------------------------------
B. Design Capacity Electrical service design capacity to
be exclusive of building HVAC.
Landlord to provide all disconnect
switches, transformers, meters and
distribution panels as required.
Panels shall provide for one (1)
branch circuit for every three (3)
workstations. Tenant responsible
--------------------------------------------------------------------------------------------------
C. EMF Maximum ten (10) milligauss,
with five (5) milligauss average
at any given point, within
demised Premises. N/A
--------------------------------------------------------------------------------------------------
D. Telephone Service Available at designated location of
floor for Tenant distribution. Tenant responsible
--------------------------------------------------------------------------------------------------
E. Satellite Dish Landlord to provide roof space, tower
or facility to accommodate (six (6)
feet maximum diameter of dish). in lease
--------------------------------------------------------------------------------------------------
F. Satellite Dish-roof If satellite dish is roof mounted,
mounted Landlord shall provide location and
pad with necessary structural support
inclusive of pitch pockets,
penetrations, etc., for complete
installation of said satellite dish.
Conduit connections from roof to
Tenant's demised Premises shall also
be provided. in lease
--------------------------------------------------------------------------------------------------
G. Satellite Dish- If satellite dish is mounted on tower
tower or grade or grade, Landlord shall provide the
mounted necessary pads, conduits, etc. for
connection of dish to Tenant's
Telecommunications Equipment room
within the demised Premises. in lease
--------------------------------------------------------------------------------------------------
24
----------------------------------------------------------------------------------------
SECTION IV. BASE BUILDING LINE SAFETY
----------------------------------------------------------------------------------------
A. Sprinkler Loop & 100% wet pipe system. Main loop in
Branches place for Tenant distribution. (S&Y
Value) existing
----------------------------------------------------------------------------------------
B. Standpipe As required by Codes & NFPA
requirements. existing
----------------------------------------------------------------------------------------
C. Fire Extinguishers Semi-recessed type fire extinguisher
cabinets with ABC extinguisher on
site for Tenant Contractor to install.
The number of extinguishers & cabinets
to be determined by local Fire
Department, Building Department and
NFPA requirements. existing
----------------------------------------------------------------------------------------
D. ADA Strobe & Panel ports available for tie-in
Speaker of Tenant's fire protection and
life safety systems into Base
Building system. existing
----------------------------------------------------------------------------------------
SECTION V. BASE BUILDING CEILING
----------------------------------------------------------------------------------------
A. Ceiling Type 2x2 lay-ins (standard tile and grid). existing
----------------------------------------------------------------------------------------
B. Finish Ceiling 8'-6" minimum.
Height existing
----------------------------------------------------------------------------------------
SECTION VI. BASE BUILDING PLUMBING
----------------------------------------------------------------------------------------
A. Rest room Ceramic tile floors and walls with
Condition floor drain in each facility. existing
----------------------------------------------------------------------------------------
B. Accessories Toilet paper, paper towel, sanitary
napkin, soap dispensers, trash
receptacle, mirrors, etc.
Commercial grade quality, Bobrick
or equal. existing
----------------------------------------------------------------------------------------
C. ADA Facilities Compliance with XXX xxxx. in lease
----------------------------------------------------------------------------------------
D. Number of Fixtures Sufficient to meet Tenant's staff
requirements for male to female ratio
& governing Building Codes. existing
----------------------------------------------------------------------------------------
E. Tap & Drain Plumbing Rough-in, in place for
Tenant's pantry sink. existing
----------------------------------------------------------------------------------------
F. Hot Water Rest room and pantry to be
separate from main boiler. existing
----------------------------------------------------------------------------------------
G. Drinking Fountains ADA compliant. existing
----------------------------------------------------------------------------------------
H. Exhaust Exhaust fans and ducted exhaust for
both rest room facilities as per
governing Building Codes. existing
----------------------------------------------------------------------------------------
I. Utility Room Door shall be 'B' labeled, fire
rated wood door to match Tenant's
wood finishes. existing
----------------------------------------------------------------------------------------
J. Janitor's Closet Janitor's closet shall be a separate
room and shall have a slop sink. N/A
----------------------------------------------------------------------------------------
SECTION VII. MISCELLANEOUS
----------------------------------------------------------------------------------------
A. Building Access ADA compliant entries including ramps,
elevators, parking, etc. N/A
----------------------------------------------------------------------------------------
B. Freight Elevators Provide contact and Building Rules &
Regulations. N/A
----------------------------------------------------------------------------------------
25
---------------------------------------------------------------------------------------------------
c. Building Standards All entry points to the building that
Vestibules lead directly from the exterior shall be
protected by weather tight,
air-conditioned, permanent enclosures.
The mode of conditioning the air shall
be compatible with local climatic
conditions and shall meet all governing
federal, state and/or municipal Energy
Conservation Codes. Finishes within
vestibule shall be of durable,
non-slip, weather-resistant materials
coordinated with Tenant's interior
finishes. N/A
---------------------------------------------------------------------------------------------------
D. Exterior Signage Tenant's signage (illuminated) and
logo on face of building and/or
free-standing, illuminated, monument
sign. Signage permits as required by
local City Codes to be procured by
Landlord. in lease
---------------------------------------------------------------------------------------------------
E. Interior Signage Tenant's signage and logo at Tenant's
entrance. in lease
---------------------------------------------------------------------------------------------------
X. Xxxx Finishes If Tenant is sole occupant of
building, all wood finishes on
interior shall match wood finishes. N/A
---------------------------------------------------------------------------------------------------
G Parking spaces Designate a minimum of one (1)
parking space per 250 sq. ft. of
building area, or compliance with
governing Building and Zoning
Regulations, whichever is more. in lease
---------------------------------------------------------------------------------------------------
H Lighting and Site and Landscaping Plans to be
landscaping on site submitted for Tenant review and
approval. N/A
---------------------------------------------------------------------------------------------------
I. As Built A&E Base Building As Built A&E
Drawings Drawings to be submitted to Tenant
on Auto Cad #13 or #14. Tenant's possession
---------------------------------------------------------------------------------------------------
J. Milestone Schedule Landlord to provide Base Building
Milestone Schedule Including
weather-tight shell, permanent power,
permanent Base Building HVAC, fully
functional elevator service, etc. N/A
---------------------------------------------------------------------------------------------------
SECTION VIII. RENT/LEASE RECAP (CURRENT AND NEW LOCATION)
---------------------------------------------------------------------------------------------------
A. FREE RENT in lease
---------------------------------------------------------------------------------------------------
B. RENT START DATE in lease
---------------------------------------------------------------------------------------------------
C. PENALTIES DUE TO
LANDLORD'S DELAY in lease
---------------------------------------------------------------------------------------------------
D. HOLDOVER AT OUR
CURRENT LOCATION N/A
---------------------------------------------------------------------------------------------------
E. LL CONTRIBUTION RSF or USF $
---------------------------------------------------------------------------------------------------
26
