CONSENT TO SUBLEASE
THIS AGREEMENT ("Agreement") is made as of February 3, 1999, by and
among 18301 Associates L.P. ("Landlord"), Cruttenden Xxxx Inc., a California
Corp.("Sublessor"), and 0XxxXxxx.xxx, Inc., an Oklahoma Corp. ("Subtenant").
Recitals
1. Landlord is the landlord and Sublessor is the tenant under a lease
dated March 8, 1991 as amended (the "Prime Lease"), for approximately 20,341
square feet of space (the "Premises"), located on the seventh floor of the
office building, known as Suite 700 located at 00000 Xxx Xxxxxx, Xxxxxx, XX
(the "Building"). Capitalized terms not otherwise defined herein shall have
the meanings given them in the Prime Lease.
2. Sublessor has requested that Landlord consent to the subletting by
Sublessor to Subtenant of a portion of the Premises ("Sublet Premises"),
pursuant to the Sublease dated February 3, 1999 (the "Sublease"), to which
this Agreement is attached.
NOW, THEREFORE, in consideration of the foregoing recitals and the
covenants contained herein, Landlord hereby consents to the Sublease subject
to and upon the following terms and conditions, as to each of which
Sublessor and Subtenant expressly agree:
1. Nothing contained in this Agreement shall:
(a) operate as a consent to or approval or ratification by Landlord of
any specific provisions of the Sublease or as a representation or warranty
by Landlord, or cause Landlord to be estopped or bound in any way by any of
the provisions of the Sublease, or
(b) be construed to modify, waive or affect (I) any of the provisions,
covenants or conditions in the Prime Lease, or (ii) any of Sublessor's
obligations under the Prime Lease, or (iii) any rights or remedies of
Landlord under the Prime Lease or otherwise or to enlarge or increase
Landlord's obligations or Sublessor's rights under the Prime Lease or
otherwise, or
(C)be deemed to make Subtenant a third party beneficiary of the
provisions of the Prime Lease, or create or permit any direct right of
action by Subtenant against Landlord for breach of the covenant of quiet
enjoyment or any other covenant of Landlord under the Prime Lease, or
(d) be construed to waive any past, present or future breach or default
on the part of Sublessor under the Prime Lease.
2. The Sublease shall be subject and subordinate at all times to the
Prime Lease and to all of its provisions, covenants and conditions. Except
for rent payable under Prime Lease, Subtenant shall perform faithfully and
be bound by all of the terms, covenants, conditions, provisions and
agreements of the Prime Lease (including, without limitation, insurance
requirements, as though Subtenant were the "Tenant" under the Prime Lease),
for the
period covered by the Sublease, but only to the extent applicable to the
Sublet Premises. In case of any conflict between the provisions of the Prime
Lease and the provisions of the Sublease, the provisions of the Prime Lease
shall prevail unaffected by the Sublease.
3. Neither the Sublease nor this consent thereto shall release or
discharge Sublessor from any liability under the Prime Lease. Sublessor
shall remain liable and responsible for the full performance and observance
of all the provisions, covenants and conditions set forth in the Prime Lease
on the part of Sublessor to be performed and observed. Any breach or
violation of any provision of the Prime Lease by Subtenant shall be deemed
to be, and shall constitute, a default by Sublessor in fulfilling such
provision.
4. This consent by Landlord shall not be assignable or transferable and
shall not be construed as a consent by Landlord to any further subletting by
Sublessor or Subtenant or to any assignment by Sublessor of the Prime Lease
or assignment by Subtenant of the Sublease, whether or not the Sublease
purports to permit the same, and, without limiting the generality of the
foregoing, both Sublessor and Subtenant agree that Subtenant has no right
whatsoever to assign, mortgage or encumber the Sublease nor to sublet any
portion of the Sublet Premises or permit any portion of the Sublet Premises
to be used or occupied by any other party or in any other manner to transfer
all or any part of Subtenant's rights with respect to the Sublease or the
Sublet Premises. All provisions in the Prime Lease restricting or
prohibiting transfer of Tenant's interests shall also apply to restrict or
prohibit transfer by Subtenant (but, except only as otherwise expressly
provided to the contrary in this Agreement, no provisions in the Prime Lease
permitting any transfer by Sublessor shall apply to permit any transfer by
Subtenant). This consent may not be construed as a consent by Landlord to
any modification, amendment, extension or renewal of the Sublease, without
Landlord's prior written consent.
5. Sublessor hereby absolutely and irrevocably assigns to Landlord any
and all rights to receive rent and other consideration from any sublease,
including the Sublease, and agrees that Landlord, as assignee or as
attorney-in-fact for Sublessor for purposes hereof, or a receiver for
Sublessor appointed on landlord's application may (but shall not be
obligated to) collect such rents and other consideration and apply the same
toward Sublessor's obligations to Landlord under the Prime Lease; provided,
however, that Landlord grants to Sublessor at all times prior to occurrence
of any breach or default by Sublessor under the Prime Lease a revocable
license to collect such rents (which license shall automatically and without
notice be and be deemed to have been revoked and terminated immediately upon
any Event of Default under the Prime Lease). Sublessor and Subtenant agree
that upon receipt of notice from Landlord directing Subtenant to pay the
sublease rent directly to Landlord, Subtenant shall pay rent due under the
Sublease to Landlord. Landlord shall credit Sublessor with any rent received
by Landlord under such assignment, but the acceptance of any payment on
account of rent from Subtenant as the result of any such default shall in no
manner whatsoever serve to release Sublessor from any liability under the
Prime Lease, except to the extent of%- rent so credited.
6. Upon the expiration or any earlier termination of the term of the
Prime Lease, the voluntary or involuntary surrender of the Prime Lease by
Sublessor to Landlord, or a mutual cancellation of the Prime Lease by
Landlord and Sublessor, the Sublease and its term shall terminate and
Subtenant shall vacate the Premises on or before the effective date of such,
termination. In the event of the failure of Subtenant to so vacate the
Premises, Landlord shall be entitled to enforce against Subtenant all of the
rights and remedies available to a landlord against a tenant holding over
after the expiration of a term.
7. Both Sublessor and Subtenant shall be and continue to be liable for
the payment of (a) all bills rendered by Landlord for charges incurred by
Subtenant for services and materials supplied to the Sublet Premises beyond
that which is required by the terms of the Prime Lease, and (b) any
additional costs incurred by Landlord for maintenance and repair of the
Sublet Premises as the result of Subtenant occupying the Sublet Premises
(including, but not limited to, any excess cost to Landlord of services
furnished to or for the Sublet Premises).
8. Notwithstanding anything to the contrary contained in the Sublease,
Landlord may require that requests for any service to be supplied by
Landlord to the Sublet Premises, requests to alter the Sublet Premises,
requests to further sublet the Sublet Premises or assign the Sublease, and
other requests for Landlord's consent or approval be made by Sublessor on
behalf of Subtenant.
9. Sublessor and Subtenant each covenants and agrees that under no
circumstances shall Landlord be liable for any brokerage commission or other
charge or expense in connection with the Sublease.
10. Sublessor and Subtenant understand and acknowledge that Landlord's
consent to the Sublease expressed herein is not a consent to any improvement
or alteration work to be performed in the Sublet Premises (including without
limitation any improvement work contemplated in the Sublease), that
Landlord's consent for such work must be separately sought and that any such
work shall be subject to all the provisions of the Prime Lease with respect
thereto.
11. In the event of any conflict between the provisions of this
Agreement and the provisions of the Sublease, the provisions of this
Agreement shall prevail.
12. In addition to complying with all provisions of the Prime Lease
concerning estoppel certificates, Sublessor and Subtenant each also agree to
execute and deliver from time to time upon request such other estoppel
certificates as Landlord may require with respect to the Sublease.
13. In the event of any arbitration or action or proceeding at law or
in equity between or among the parties to this Agreement as a consequence of
any controversy, claim or dispute relating to this agreement or the breach
thereof or to enforce any of the provisions and/or rights hereunder, the
unsuccessful party or parties to such arbitration, action or proceeding
shall pay to the successful party or parties costs and expenses, including
attorneys' fees incurred therein by such successful party or parties.
14. Each of Subtenant and Sublessor, jointly and severally, shall
indemnify, defend and hold Landlord harmless from and against any and all
claims arising out of (i) Subtenant's use of the Premises or any part
thereof, or (ii) any activity, work or other thing done,
permitted or suffered by Subtenant in or about the Building or the Premises,
or any part thereof, or (iii) any breach or default in the performance of
any obligation on Subtenant's part to be performed under the terms of the
Sublease or this Agreement, (iv) any act or negligence of Subtenant or any
officer, agent, employee, contractor, servant, invitee or guest of
Subtenant, or (v) any claim for brokerage commissions or other charges or
expenses in connection with the Sublease; and in each case from and against
any and all damages, losses, liabilities, lawsuits, j udgments, and costs
and expenses (including without limitation reasonable attorneys' fees)
arising in connection with any such claim or claims as described in clauses
(i) through (v) above, or any action or proceeding brought thereon. If any
such action or proceeding be brought against Landlord, the indemnifying
party, upon notice from Landlord, shall defend the same at the indemnifying
party's sole expense by counsel reasonably satisfactory to Landlord.
Subtenant, as all material part of the consideration to Landlord, hereby
assumes all risk of damage or loss to property or injury or death to
persons, in, upon or about the Premises, from any cause, and Subtenant
hereby waives all claims in respect thereof against Landlord.
15. This Agreement shall be construed in accordance with the laws of
the State of California and, together with the Sublease and the Prime Lease,
contains the entire agreement of the parties hereto with respect to the
subject matter hereof and may not be changed or terminated orally or by
course of conduct.
16. This Agreement is hereby incorporated into the Sublease and shall
be attached to the Sublease.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
LANDLORD:
18301 ASSOCIATES L.P.
a California limited partnership
By: CORNERSTONE HOLDINGS, LLC
a Delaware limited liability company
Its General Partner
By:/s/Xxxxxx Xxxxxxx
Name:Xxxxxx Xxxxxxx
Title: Authorized Signatory
SUBLESSOR: CRUTTENDEN XXXX INCORPORATED,
a California corporation
By:/s/Xxxxxx Xxxxxx
Name:
Title:
SUBTENANT: 0XxxXxxx.xxx, Inc.
an Oklahoma Corporation
By:/s/Xxxxxxx X. Xxxxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: President
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
STANDARD SUBLEASE
(Long-form to be used with pre-1996 AIR leases)
1. Parties. This Sublease, dated, for reference purposes only February 3,
1999, is made by and between Cruttenden Xxxx Incorporated, a California
Corporation, formerly Cruttenden & Co., Inc., a California Corporation
("Sublessor") and 0XxxXxxx.xxx. , an Oklahoma Corp. ("Sublessee").
2. Premises. Sublessor hereby subleases to Sublessee and Sublessee hereby
subleases from Sublessor for the term, at the rental. and upon all of the
conditions set forth herein, that certain real property, including all
improvements therein, and commonly known by the street address of 00000 Xxx
Xxxxxx, Xxxxx 000, Xxxxxx located in the County of Orange, State of
California and generally described as (describe briefly the nature of the
property) the sublease space located on the seventh (7th) floor only
consisting of approximately 20,341 rentable square feet. The office building
is a class "A" eleven story building.
("Premises").
3. Term.
3.1 Term. The term of this Sublease shall be for approx 28.5 months
commencing on February 12, 1999 or upon final approval by the landlord and
ending on June 27, 2001 unless sooner terminated pursuant to any provision
hereof.
3.2 Delay In Commencement. Sublessor agrees to use its best commercially
reasonable efforts to deliver possession of the Promises by the commencement
date. If, despite said efforts, Sublessor is unable to deliver possession as
agreed, Sublessor shall not be subject to any liability therefor, nor shall
such failure affect the validity of this Sublease. Sublessee shall not,
however, be obligated to pay Rent or perform its other obligations until it
receives possession of the Promises. If possession is not delivered within
sixty days after the commencement date, Sublessee may, at its option, by
notice in writing within ten days after the end of such sixty day period,
cancel this Sublease, in which event the Parties shall be discharged from
all obligations hereunder. If such written notice is not received by
Sublessor within said ten day period, Sublessee's right to cancel shall
terminate, Except as otherwise provided, if possession is not tendered to
Sublessee when required and Sublessee does not terminate this Sublease, as
aforesaid, any period of rent abatement that Sublessee would otherwise have
enjoyed shall run from the date of delivery of possession and continue for a
period equal to what Sublessee would otherwise have enjoyed under the terms
hereof, but minus any days of delay caused by the acts or omissions of
Sublessee, if possession is not delivered within 120 days after the
commencement date, this Sublease shall automatically terminate unless the
Parties agree, in writing, to the contrary.
4. Rent.
4.1Base Rent. Sublessee shall pay to Sublessor as Base Rent for the Premises
equal monthly payments of $*see below in advance, on the First day of each
month of the term hereof. Sublessee shall pay Sublessor upon the execution
hereof $32,070.50 as Base Rent for the 3 at two (2) months of occupancy Base
Rent for any period during the term hereof which is for less than one month
shall be a pro rata portion of the monthly installment.
*MONTHS 00-01 $6,604.50
02-3.5 $25,466.00
4.5-28.5 $35,596.75
4.2 Rent Defined. All monetary obligations of Sublessee, to Sublessor under
the terms of this Sublease (except for the Security Deposit) are deemed to
be rent ("Rent'). Rent shall be payable in lawful money of the United States
to Sublessor at the address stated herein or to such other persons or at
such other places as Sublessor may designate in writing.
5. Security Deposit. Sublessee shall deposit with Sublessor upon execution
hereof $71,193.50** ** PROVIDED SUBLESSEE 1S NOT IN DEFAULT UNDER TH1S
SUBLEASE, SUBLESSEE SHALL BE ABLE TO APPLY ONE-HALF (1/2) OF THE SECURITY
DEPOSIT IN THE AMOUNT OF $35,596.75 TOWARDS THE RENT FOR, THE FOURTEENTH
(14TH) MONTH OF THE SUBLEASE TERM.
as security for Sublessee's faithful performance of Sublessee's obligations
hereunder. If Sublessee fails to pay Rent or other charges due hereunder, or
otherwise defaults with respect to any provision of (his Sublease, Sublessor
may use, apply or retain all or any portion of said deposit for the payment
of any Rent or other charge in default or for the payment of any other sum
to which Sublessor may become obligated by reason of Sublessee's default, or
to compensate Sublessor for any loss or damage which Sublessor may suffer
thereby. If Sublessor so uses or applies all of any portion of said deposit,
Sublessee shall within ten days after written demand therefore forward to
Sublessor an amount sufficient to restore said Deposit to the full amount
provided for herein and Sublessee's failure to do so shall he a material
breach of this Sublease. Sublessor shall not be required to keep said
Deposit separate from its general accounts. If Sublessee performs all of
Sublessee's obligations hereunder, said Deposit, or so much thereof as has
not therefore been applied by Sublessor, shall be returned , without payment
of interest to Sublessee (or at Sublessor's option, to the last assignee, if
any, of Sublessee's interest hereunder) at the expiration of the term
hereof, and after Sublessee has vacated the Premises. No trust relationship
is created herein between Sublessor and Sublessee with respect to said
Security Deposit.
6. Use
6.1 Agreed Use. The Premises shall be used and occupied only for an
Internet firm and related office uses and for no other purpose.
6.2 Compliance. Sublessor warrants that the improvements on the Premises
comply with all applicable covenants or restrictions of record and
applicable building codes, regulations and ordinances ('Applicable
Requirements') in effect on the commencement date. Said warranty does not
apply to the use to which Sublessee will put the Premises or to any
alterations or utility installations made or to be made by Sublessee. NOTE:
Sublessee is responsible for determining whether or not the zoning is
appropriate for its intended use, and acknowledges that past uses of the
Premises may no longer be allowed. If the premises do not comply with said
warranty, Sublessor shall, except as otherwise provided, promptly after
receipt of written notice from Sublessee setting forth with specificity the
nature and extent of such non-compliance, rectify the same at Sublessor's
expense. If Sublessee does not give Sublessor written notice of a
non-compliance with this warranty within six months following the
commencement date, correction of that non-compliance shall be the obligation
of Sublessee at its sole cost and expense. If the Applicable Requirements
are hereafter changed so as to require during the term of this Sublease the
construction of an addition to or an alteration of the Building, the
remediation of any Hazardous Substance, or the reinforcement or other
physical modification of the Building ("Capital Expenditure''), Sublessor
and Sublessee shall allocate the cost of such work as follows:
(a) If such Capital Expenditures are required as a result of the specific
and unique use of the Premises by Sublessee as compared with uses by tenants
in general, Sublessee shall be fully responsible for the cost thereof
provided, however, that if such Capital Expenditure is required during the
last two years of this Sublease and the cost thereof exceeds six months'
Base Rent, Sublessee may instead terminate this Sublease unless Sublessor
notifies Sublessee in writing, within ton days after receipt of Sublessees'
termination notice that Sublessor has elected to pay the difference between
(he actual cast thereof and the amount equal to six months' Base Rent. If
the Parties elect termination, Subleases shall immediately cease the use of
the Promises which requires such Capital Expenditure and deliver to
Sublessor written notice specifying a termination date at least ninety days
thereafter. Such termination date shall, however, in no event be earlier
then the last day that Sublessee could legally utilize the Promises without
commencing such Capital Expenditure,
(b) If such Capital Expenditure is not the result of the specific and unique
use of the Premises by Sublessee (such as governmentally mandated seismic
modifications, then Sublessor shall pay for said Capital Expenditure and the
cost thereof shall be prorated between the Sublessor and Subleases and
Subleases shall only be obligated to pay, each month during the remainder of
the term of this Sublease, on the date on which Rent is due, an amount equal
to the product of multiplying the cost of such Capital Expenditure by a
traction, the numerator of which is one, and the denominator of which is the
number of months of the useful life of such Capital Expenditure as such
useful life is specified pursuant to Federal income tax regulations or
guidelines for depreciation thereof (including interest on the unamortized
balance as is then commercially reasonable in the judgment of Sublessor's
accountant), with Subleases reserving the right to prepay its obligation at
any time. Provided, however, that if such Capital Expenditure is required
during the last two years of this Sublease or in Sublessor reasonably
determines that it is not economically feasible to pay its share thereof,
Sublessor shall have the option to terminate this Sublease upon ninety days
prior written notice to Sublessee unless Sublessee notifies Sublessor, in
writing, within ten days after receipt of Sublessor's termination notice
that Sublessee will pay for such Capital Expenditure, if Sublessor does not
elect to terminate, and falls to tender its share of any such Capital
Expenditure. Sublessee may advance such funds and deduct same, with
interest, from Rent until Sublessor's share of such costs have been fully
paid. It Sublessee is unable to finance Sublessor's share, or if the balance
of the Rent due and payable for the remainder of this Sublease is not
sufficient to fully reimburse Sublessee on an offset basis, Subleases shall
have the right to terminate this Sublease upon ten days written notice to
Sublessor,
(C) Notwithstanding the above, the provisions concerning Capital
Expenditures are intended to apply only to non-voluntary, unexpected, and
new Applicable Requirements. If the Capital Expenditures are instead
triggered by Sublessee as a result of an actual or proposed change in use,
change in intensity of use. or modification to the Premises then, and in
that event, Sublessee shall be fully responsible for the cost thereof, and
Sublessee shall not have any right to terminate this Sublease.
6.3 Acceptance of Premises and Lessee. Sublessee acknowledges that:
(a) it has been advised by Brokers to satisfy itself with respect to the
condition of the Premises (including but not limited to the electrical, HVAC
and fire sprinkler systems, security, environmental aspects, and compliance
with Applicable Requirements), and their suitability for Subleases's
intended use,
(b) Subleases has made such investigation as it deems necessary with
reference to such matters and assumes all responsibility therefor as the
same relate to its occupancy of the Promises, and
(C) neither Sublessor, Sublessor's agents, nor any Broker has made any
oral or written representations or warranties with respect to said matters
other than as set forth in this Sublease.
In addition, Sublessor acknowledges that:
(a) Broker has made no representations, promises or warranties concerning
Sublessee's ability to honor the Sublease or suitability to occupy the
Promises, and
(b) it is Sublessor's sole responsibility to investigate the financial
capability and/or suitability of all proposed tenants.
7. Master Lease
7.1 Sublessor is the lessee of the Premises by virtue of a lease,
hereinafter the "Master Lease a copy of which is attached hereto marked
Exhibit 1 wherein 18301 Associate, LP, formerly KZ3, a California limited
partnership is the lessor, hereinafter the "Master Lessee'
7.2 This Sublease is and shall be at all times subject and subordinate to
the Master Lease.
7.3 The terms, conditions and respective obligations of Sublessor and
Subleases to each other under this Sublease shall be the terms and
conditions of the Master Lease except for those provisions of the Master
Lease which are directly contradicted by this Sublease
in which event the terms of this Sublease document shall control over the
Master Lease. Therefore, for the purposes of this Sublease, wherever in the
Master Lease the word "Lessor" is used it shall be deemed to mean the
Sublessor herein and wherever in the Master Lease the word "Lessee" is used
it shall be deemed to mean the Sublessee herein.
7.4 During the term of this Sublease and for all periods subsequent for
obligations which have arisen prior to the termination of this Sublease.
Sublessee does hereby expressly assume and agree to perform and comply with,
for the benefit of Sublessor and Master Lessor, each and every obligation of
Sublessor under the Master Lease except for the following paragraphs which
are excluded therefrom:
Paragraphs 1(1) (m) (o) (p) (q) (r) (s) and exhibit 'B' work letter.
7.5 The obligations that Subleases has assumed under paragraph 7.4 hereof
are hereinafter referred to as the "Sublessee's
Assumed Obligations". The obligations that Sublessee has not assumed under
paragraph 7.4 hereof are hereinafter referred to as the
"Sublessor's Remaining Obligations"
7.6 Sublessee shall hold Sublessor free and harmless from all liability,
judgments, costs. damages, claims or demands, including reasonable attorneys
fees, arising out of Sublessee's failure to comply with or perform
Sublessee's Assumed Obligations.
7.7 Sublessor agrees to maintain the Master Lease during the entire term of
this Sublease, subject, however, to any earlier termination of the Master
Lease without the fault of the Sublessor. and to comply with or perform
Sublessor's Remaining Obligations and to hold Sublessee free and harmless
from all liability, judgments, costs, damages, claims or demands arising out
of Sublessor's failure to comply with or perform Sublessor's Remaining
Obligations.
7.8 Sublessor represents to Sublessee that the Master Lease is in full force
and effect and that no default exists on the part of any Party to the Master
Lease.
8.Assignment of Sublease and Default.
8.1 Sublessor hereby assigns and transfers to Master Lessor the Sublessor's
interest in this sublease, subject however to the provisions of Paragraph
8.2 hereof.
8.2 Master Lessor, by executing this document, agrees that until a Default
shall occur in the performance of Sublessor's Obligations under the Master
Lease, that Sublessor may receive, collect and enjoy the Rent accruing under
this Sublease. However, if Sublessor shall Default in the performance of
its obligations to Master Lessor then Master Lessor may, at its option,
receive and collect, directly from Sublessee, all Rent owing and to be owed
under this Sublease. Master Lessor shall not, by reason of this assignment
of the Sublease nor by reason of the collection of the Rent from the
Sublessee, be deemed liable to Sublessee for any failure of the Sublessor to
perform and comply with Sublessor's Remaining Obligations.
8.3 Sublessor hereby irrevocably authorizes and directs Sublessee upon
receipt of any written notice from the Master Lessor stating that a Default
exists in the performance of Sublessor's obligations under the Master Lease,
to pay to Master Lessor the Rent due and to become due under the Sublease.
Sublessor agrees that Sublessee shall have the right to rely upon any such
statement and request
from Master Lessor, and that Sublessee shall pay such Rent to Master Lessor
without any obligation or right to inquire as to whether such Default exists
and notwithstanding any notice from or claim from Sublessor to the contrary
and Sublessor shall have no right or claim against Sublessee for any such
Rent so paid by Subleases.
8.4 No changes or modifications shall be made to this Sublease without the
consent of Master Lessor.
9. Consent of Master Lessor.
9.1 In the event that the Master Lease requires that Sublessor obtain the
consent of Master Lessor to any subletting by Sublessor then, this Sublease
shall not be effective unless, within ton days or the date hereof, Master
Lessor signs this Sublease thereby giving its consent to this Subletting.
9.2 In the event that the obligations of the Sublessor under the Master
Lease have been guaranteed by third parties then neither this Sublease, nor
the Master Lessor's consent, shall be effective unless, within 10 days of
the date hereof, said guarantors sign this Sublease thereby giving their
consent to this Sublease.
9.3 In the event that Master Lessor does give such consent then:
(a) Such consent shall not release Sublessor of its obligations or alter the
primary liability of Sublessor to pay the Rent and perform and comply with
all of the obligations of Sublessor to be performed under the Master Lease.
(b) The acceptance of Rent by Master Lessor from Sublessee or anyone else
liable under the Master Lease shall not be deemed a waiver by Master Lessor
of any provisions of the Master Lease.
(C) The consent to this Sublease shall not constitute a consent to any
subsequent subletting or assignment.
(d) In the event of any Default of Sublessor under the Master Lease, Master
Lessor may proceed directly against Sublessor. any guarantors or anyone else
liable under the Master Lease or this Sublease without first exhausting
Master Lessor's remedies against any other person or entity liable thereon
to Master Lessor.
(e) Master Lessor may consent to subsequent sublettings and assignments of
the Master Lease or this Sublease or any amendments or modifications thereto
without notifying Sublessor or anyone else liable under the Master Lease and
without obtaining their consent and such action shall not relieve such
persons from liability.
(f) In the event that Sublessor shall Default in its obligations under the
Master Lease, then Master Lessor, at its option and without being obligated
to do so, may require Sublessee to attorn to Master Lessor in which event
Master Lessor shall undertake the obligations of Sublessor under this
Sublease from the time of the exercise of said option to termination of this
Sublease but Master Lessor shall not be liable for any prepaid Rent nor any
Security Deposit paid by Sublessee, nor shall Master Lessor be liable for
any other Defaults of the Sublessor under the Sublease.
9.4 The signatures of the Master Lessor and any Guarantors of Sublessor at
the end of this document shall constitute their consent to the terms of this
Sublease.
9.5 Master Lessor acknowledges that, to the best of Master Lessor's
knowledge, no Default presently exists under the Master Lease of obligations
to be performed by Sublessor and that the Master Lease is in full force and
effect.
9.6 In the event that Sublessor Defaults under its obligations to be
performed under the Master Lease by Sublessor, Master Lessor agrees to
deliver to Sublessee a copy of any such notice of default. Sublessee shall
have the right to cure any Default of Sublessor described in any notice of
default within ten days after service of such notice of default on
Sublessee, If such Default is cured by Sublessee then Sublessee shall have
the right of reimbursement and offset from and against Sublessor.
10. Brokers Fee.
10.1 Upon execution hereof by all parties, Sublessor shall pay to Xxxxxxx
Xxxx Company. a licensed real estate broker, ("Broker"), a fee as set forth
in a separate agreement between Sublessor and Broker, or in the event there
is no such separate agreement, the sum of $ pursuant to agreement for
brokerage services rendered by Broker
to Sublessor in this transaction.
10.2 Sublessor agrees that if Sublessee exercises any option or right of
first refusal as granted by Sublessor herein, or any option or right
Substantially similar thereto, either to extend the term of this Sublease,
to renew this Sublease, to purchase the Promises, or to lease or purchase
adjacent property which Sublessor may own or in which Sublessor has an
interest, then Sublessor shall pay to Broker a fee in accordance with the
schedule of Broker in effect at the time of the execution of this Sublease.
Notwithstanding the foregoing, Sublessor's obligation under this Paragraph
10.2 is limited to a transaction in which Sublessor is acting as a
Sublessor, lessor or seller.
10.3 Master Lessor agrees that if Sublessee shall exercise any option or
right of first refusal granted to Sublessee by Master Lessor in connection
with this Sublease, or any option or right substantially similar thereto,
either to extend or renew the Master Lease, to purchase the Premises or any
part thereof, or to lease or purchase adjacent property which Master Lessor
may own or in which Master Lessor has an interest. or if Broker is the
procuring cause of any other lease or sale entered into between Sublessee
and Master Lessor pertaining to the Premises, any part thereof, or any
adjacent property which Master Lessor owns or In which it has an interest,
then as to any of said transactions, Master Lessor shall pay to Broker a
fee, in cash, in accordance with the schedule of Broker in effect at the
time of the execution of this Sublease.
10.4 Any fee due from Sublessor or Master Lessor hereunder shall be due and
payable upon the exercise of any option to extend or renew, upon the
execution of any new lease, or, in the event of a purchase, at the close of
escrow.
10.5 Any transferee of Sublessor's interest in this Sublease, or of Master
Lessor's interest in the Master Lease, by accepting an assignment thereof,
shall be deemed to have assumed the respective obligations of Sublessor or
Master Lessor under this Paragraph 10, Broker shall be deemed to be a
third-party beneficiary of this paragraph 10.
11. Attorney's Fees. If any party or the Broker named herein brings an
action to enforce the terms hereof or to declare rights hereunder, the
prevailing party In any such action, on trial and appeal, shall be entitled
to his reasonable attorney's fees to be paid by the losing party as fixed by
the Court.
12. Additional Provisions. If there are no additional provisions, draw a
line from this point to the next printed word after the space left here. If
there are additional provisions place the same here.
13. Operating Expense Allowance: Sublessee shall receive a 1999 calendar
base year allowance per rentable square foot. Sublessee percentage shall be
9.264% as reflected in the amendment No. 4 to office building lease.
14. Tenant Improvements: Sublessee shall accept the premises in 'as-is'
condition and shall be solely responsible for any and all modifications to
the premises. Sublessee shall receive five (5) days of early occupancy in
the executive area in order to replace the carpet, install phone lines,
furniture, etc.
ATTENTION: NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE AMERICAN
INDUSTRIAL REAL ESTATE ASSOCIATION OR BY ANY REAL ESTATE BROKER AS TO THE
LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS SUBLEASE OR THE
TRANSACTION TO WHICH IT RELATES. THE PARTIES ARE URGED TO:
1. SEEK ADVICE OF COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS
SUBLEASE.
2. RETAIN APPROPRIATE CONSULTANTS TO REVIEW AND INVESTIGATE THE CONDITION OF
THE PREMISES. SAID INVESTIGATION SHOULD INCLUDE BUT NOT BE LIMITED TO: THE
POSSIBLE PRESENCE OF HAZARDOUS SUBSTANCES, THE ZONING OF THE PROPERTY, THE
STRUCTURAL INTEGRITY, THE CONDITION OF THE ROOF AND OPERATING SYSTEMS, AND
THE SUITABILITY OF THE PREMISES FOR SUBLESSEE'S INTENDED USE.
WARNING: IF THE SUBJECT PROPERTY IS LOCATED IN A STATE OTHER THAN
CALIFORNIA, CERTAIN PROVISIONS OF THE SUBLEASE MAY NEED TO BE REVISED TO
COMPLY WITH THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED.
Executed at: CRUTTENDEN XXXX
INCORPORATED
on: By:/s/Xxxxxx Xxxxxx
Address: 00 Xxxxxxxxx Xxxxx Xxxxxxx Xxxxx, XX By
"Sublessor" (Corporate
Seal)
Executed at: 0XXXXXXX.XXX, INC.
on: By:/s/Xxxxxxx X.
Xxxxxxxxxxx
Address: 0000 Xxxxx Xxxxxxx Xxxxxx, XX Its: President
"Sublessee" (Corporate
Seal)
Executed at: See page 4a
on: By
Address: 00000 Xxx Xxxxxx Xxx . Xxxxxx, XX By
"Master Lessor'
(Corporate Seal)
18301 ASSOCIATES, L.P.
a California limited partnership
By: CORNERSTONE HOLDINGS, LLC
A Delaware limited liability company
Its General Partner
By:
Name:
Title: Authorized Signatory
Date:
OFFICE BUILDING LEASE
BETWEEN
KZ3
LANDLORD
AND
CRUTTENDEN & CO., INC.
TENANT
March 8, 1991
OFFICE BUILDING LEASE
TABLE OF CONTENTS
Paragraph Page
3. Terms and Definitions 1
4. Premises and Common Areas Leased 2
5. Term 3
6. Possession 3
7. Annual Basic Rent 3
8. Rental Adjustment 4
9. Security Deposit 5
10. Use 5
11. Notices 6
12. Brokers 6
13. Holding Over 6
14. Taxes on Tenant's Property 6
15. Condition of Premises 6
16. Alterations 7
17. Repairs 7
18. Liens 7
19. Entry By Landlord 8
20. Utilities and Services 8
21. Bankruptcy 8
22. Idenification and Exculpation of Landlord 8
23. Damage to Tenant's Property 9
24. Tenant's Insurance 9
25. Damage or Destruction 10
26. Eminent Domain 11
27. Defaults and Remedies 11
28. Assignment and Subletting 12
29. Subordination 13
30. Estoppel Certificate 14
31. Building Planning 14
32. Rules and Regulations 14
33. Conflict of Laws 14
34. Successors and Assigns 14
35. Surrender of Premises 14
36. Professional Fees 14
37. Performance by Tenant 15
38. Mortgage Protection 15
39. Definition of Landlord 15
40. Waiver 15
41. Identification of Tenant 15
42. Parking 16
43. Force Majeure 16
44. Terms and Headings 16
45. Examination of Lease 16
46. Time 16
47. Prior Agreement or Amendments 16
48. Separability 17
49. Recording 17
50. Limitation on Liability 17
51. Traffic Impact 17
52. Air Traffic 17
53. Modification For Lender 17
54. Financial Statements 17
53. Quiet Enjoyment 17
54. Tenant as Corporation 18
EXHIBITS
Exhibit Item
A. 1. Outline of Premises
2. Site Plan
B. Work Letter Agreement
C. Notice of Lease Term Dates and Tenant's Percentage
D. Standards for Utilities and Services
E. Tenant Estoppel Certificate
F. Rules and Regulations
G. Parking Rules and Regulations
H. Signage
KZ3
OFFICE BUILDING LEASE
THIS OFFICE BUILDING LEASE ("Lease") is made as of the 8th day of March,
1991 by and between KZ3, a California limited partnership ("Landlord') and
Cruttenden & Co., Inc., A California Corporation ("Tenant").
1. TERMS AND DEFINITIONS.
For the purposes of this Lease, the following terms shall have the following
definitions and meanings:
(a) Landlord: KZ3
(b) Landlord's address:
00000 Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
With a copy to:
N/A
(c) Tenant: Cruttenden & Co., Inc.
(d) Building address:
00000 Xxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
(e) Suite number: 100
(f) Floor(s) upon which the Premises are located: Ground
(g) Premises: Those certain premises defined in Subparagraph 2(a) below.
(h) Site: The parcel or parcels of real property defined in Subparagraph
2(a) below.
(i) Approximate rentable square feet within Premises:11,732 square feet.
provided that such amount shall be adjusted by Landlord's architect upon
completion of the working plans and specifications for the build out of the
Premises pursuant to the Work Letter Agreement, and the exact amount of
rentable square feet within the Premises shall
be determined by Landlord's architect upon completion of the improvements
pursuant to the Work Letter Agreement. Said calculations shall be made in
accordance with the method of measuring rentable office space specified in
the American National Standard institute Publication ANSI 265.1-1980 (the
"BOMA Standard").
(j) Term: ten (10) Lease Years and 0 Months.
SEE RIDER, ITEM #57
(l) Tenant Improvement Allowance: $37.00per square foot of Usable Area (as
such term is defined in the Work Letter Agreement).
(m) Tenant Improvements: All work performed by Landlord to prepare the
Premises for occupancy pursuant to the Work Letter Agreement described in
Subparagraph 2(a) below.
(n) Commencement Date: The date on which the term of this Lease shall
commence as determined in accordance with Paragraph 8 of the Work Letter
Agreement.
(o) Annual Basic Rent: $211,176.00. Monthly Basic Rent: $17,598.00.
Year SEE RIDER, ITEMS #55 & #56
(p) Operating Expense Allowance: $1992 Calendar Base per rentable square
foot. The aggregate amount of rentable square feet of the Premises shall be
determined in accordance with Subparagraph 1(i).
(q) Tenant's Percentage: 5.3440, which shall be adjusted upon the
determination of the exact number of rentable square feet within the
Premises to equal a fraction whose numerator is the number of rentable
square feet within the Premises determined in accordance with Subparagraph
1(i) above and whose denominator is the approximate number
of rentable square feet within the Building as determined by Landlord's
architect in accordance with the BOMA Standard.
(r) Security Deposit: $19,357.80.
(s) Brokers: Meridian Pacific Commercial Real Estate Services.
(t) Landlord's Construction Representative: Xxxx Construction Company.
(u) Tenant's Construction Representative: N/A.
(v) Use: General office use for a financial services corporation.
(w) Riders:55 through 68, inclusive.
which Riders are attached to this Lease and are incorporated herein by this
reference.
2. PREMISES AND COMMON AREAS LEASED.
(a) Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
the Premises contained within the suite designated in Paragraph 1, outlined
on the Floor Plan attached hereto and marked Exhibit "A-I" and incorporated
herein by this reference, in that certain building which, together with its
related parking facilities, is located at the address designated in
Subparagraph 1(d) above (said building and said parking facilities are
herein together referred to as the "Building"), located on the parcel or
parcels of real property (the "Development") outlined on the Site Plan
attached hereto as Exhibit "A-II" and incorporated herein by this reference,
and improved or to be improved by Landlord with the Tenant Improvements
described in the Work Letter Agreement, a copy of which is attached hereto
and marked Exhibit "B" and which is incorporated herein by this reference,
said Premises being agreed, for the purposes of this Lease, to have an area
approximately the number of rentable Square feet designated in Subparagraph
1(i)(the exact number of which shall be determined in accordance with such
Subparagraph) and being situated on the floor(s) designated in Subparagraph
1(f) above. By taking possession of the Premises, Tenant accepts the Tenant
Improvements as completed or as substantially completed, and in the latter
case, Landlord and Tenant shall create a list of incomplete and/or
corrective items, which list shall be approved and acknowledged by Tenant
and which items landlord shall complete and/or correct promptly thereafter.
The parties hereto agree that said letting and hiring is upon and subject to
the terms, covenants and conditions herein set forth and Tenant covenants as
a material part of the consideration for this Lease to keep and perform each
and all of said terms, covenants and conditions by it to be kept and
performed and that this Lease is made upon the condition of such performance.
(b) Tenant shall have the nonexclusive right to use in common with other
tenants in the Building and the Development and subject to the Rules and
Regulations referred to in Paragraph 30 below the following areas ("Common
Areas") appurtenant to the Premises:
(i) The Building's common entrances, lobbies, restrooms, elevators,
stairways and accessways, loading docks, ramps, drives and platforms and any
passageways and serviceways thereto, and the common pipes, conduits, wires
and appurtenant equipment serving the Premises;
(ii) Loading and unloading areas, trash areas, parking areas, roadways,
sidewalks, walkways, parkways, driveways and landscaped areas and similar
areas and facilities appurtenant to the Building.
(c) Landlord reserves the right from time to time without unreasonable
interference with Tenant's use:
(i) To install, use, maintain, repair and replace pipes, ducts, conduits,
wires and appurtenant meters and equipment for service to other parts of the
Building above the ceiling surfaces, below the floor surfaces, within the
walls and in the central core areas, and to relocate any pipes, ducts,
conduits, wires and appurtenant meters and equipment included in the
Premises which are located in the Premises or located elsewhere outside the
Premises, and to expand the Building;
(ii) To make changes to the Common Areas, including, without limitation,
changes in the location, size, shape and number of driveways, entrances,
parking spaces, parking areas, loading and unloading areas, ingress, egress,
direction of traffic, landscaped areas and walkways;
(iii) To close temporarily any of the Common Areas for maintenance
purposes so long as reasonable access to the Premises remains available;
(iv) To designate other adjacent land outside the boundaries of the
Building to be a part of the Common Areas;
(v) To add additional buildings and improvements to the Common Areas;
(vi) To use the Common Areas while engaged in making additional
improvements, repairs or alterations to the Building or the Development, or
any portion thereof;
(vii) To do and perform such other acts and make such other changes in, to
or with respect to the Common Areas, the Building or the Development as
Landlord may, in the exercise of sound business judgment deem to be
appropriate.
3. TERM
The term of this Lease shall be for the period designated in Paragraph 1,
commencing on the Commencement Date, and ending on the expiration of such
period, unless the term hereby demised shall be sooner terminated as
hereinafter provided. The Commencement Date, the date upon which the term of
this Lease shall end, the rentable square feet within the Premises and
Tenant's Percentage shall be determined in accordance with the provisions of
Paragraph 1 and will be specified in Landlord's Notice of Lease Term Dates
and Tenant's Percentage ("Notice"), in the form of Exhibit "C" which is
attached hereto and is incorporated herein by this reference, and shall be
served upon Tenant as provided in Paragraph 9, after Landlord delivers or
tenders possession of the Premises to Tenant. The Notice shall be binding
upon Tenant unless Tenant objects to the Notice in writing served upon
Landlord as provided for in Paragraph 9 hereof, within five (5) days of
Tenant's receipt of the Notice.
4. POSSESSION.
Tenant agrees that, if Landord is unable to deliver possession of the
Premises to Tenant on the scheduled commencement of the term of this Lease
as set forth in the Work Schedule (as such term is defined in the Work
Letter Agreement), this Lease shall not be void or voidable, nor shall
Landlord be liable to Tenant for any loss or damage resulting therefrom, nor
shall the expiration date of the above term be in any way extended, but in
such event Tenant shall not be liable for any rent until Landlord tenders
possession of the Premises to Tenant with the Tenant Improvements
substantially completed. If Landord completes construction of the Tenant
Improvements prior to the date scheduled in the Work Schedule, Landlord
shall deliver possession of the Premises to Tenant upon such completion and
the term of this Lease shall thereupon commence. Notwithstanding the
foregoing, Tenant shall have a right to terminate this Lease and all
obligations thereunder in the event the premises are not substantially
completed and possession delivered to Tenant no later than September 15,
1991. Tenant's ability to cancel this lease shall be applicable only if the
delays are not the result of Tenant delays or changes in the Space Plan or
as a result of force majeure.
5. ANNUAL BASIC RENT
(a) Tenant agrees to pay landlord as Annual Basic Rent for the Premises the
Annual Basic Rent designated in Subparagraph 1(o)(subject to adjustment as
hereinafter provided) in twelve (12) equal monthly installments, each in
advance on the first day of each calendar month during the term. If the
term of this Lease commences or ends on a day other than the first day of a
calendar month, then the rental for such period shall be prorated in the
proportion that the number of days this Lease is in effect during such
period bears to thirty (30). In addition to the Annual Basic Rent, Tenant
agrees to pay as additional rental the amount of rental adjustments and
other charges required by this Lease. All rental shall be paid to Landlord,
without prior demand and without any deduction or offset, in lawful money of
the United States of America, at the address of Landlord designated in
Subparagraph 1(b) hereof or to such other person or at such other place as
Landlord may from time to time designate in writing.
(c) LATE CHARGES. In the event Tenant fails to pay any installment of rent
within seven (7) days of when due or in the event Tenant fails to make any
other payment for which Tenant is obligated under this Lease within seven
(7) days of when due, then Tenant shall pay to Landlord as additional rent a
late charge equal to ten percent (10%) of the amount due to compensate
Landlord for the extra costs incurred as a result of such late payment. The
parties agree that such late charge represents a fair and reasonable
estimate of the cost that Landlord will incur by reason of late payment by
Tenant. Acceptance of any late charge shall not constitute a waiver of the
Tenant's default with respect to the overdue amount, or prevent Landlord
from exercising any of the other rights and remedies available to Landlord.
(d) If the term of this lease contains any rental abatement period, Tenant
hereby agrees that if Tenant materially breaches the Lease and/or abandons
thePremises before the end of the Lease term, or if Tenant's right to
possession is terminated by Landlord because of Tenant's breach of the
lease. Landlord shall, at its option, void the rental abatement period; and
(2) recover from Tenant, in addition to any damages due Landlord under the
terms and conditions of the Lease, rent prorated for the duration of the
rental abatement period.
6. RENTAL ADJUSTMENT.
(a) For the purposes of this Subparagraph 6(a) the following terms are
defined as follows:
TENANT'S PERCENTAGE: Tenant's Percentage shall mean that portion of the
total rentable area of the Building occupied by Tenant as set forth as a
percentage in Subparagraph l(q) above.
OPERATING EXPENSE ALLOWANCE: Operating Expense Allowance shall mean that
portion of Tenant's Percentage of the Operating Expenses which Landlord has
included in the Annual Basic Rent and which amount is set forth in
Subparagraph 1(p) above.
OPERATING EXPENSES: Operating Expenses shall consist of alldirect costs of
operation and maintenance of the Buildingand the Common Areas, including any
expansions to the Common Areas by Landlord ("Operating Expenses"), as
determined by standard accounting practices, calculated assumingthe Building
is 100% fully occupied, calculated for a full year of operation, including
the following costs by way of illustration, but not limitation: any and all
assessments Landlord must pay for the Building pursuant to any covenants,
conditions or restrictions. reciprocal easement agreements,
tenancy-in-common agreements or similar restrictions and agreements
affecting the Building or the Development; real property taxes and
assessments and any taxes or assessments hereafter imposed in lieu thereof:
rent taxes, gross receipt taxes(whether assessed against Landlord or
assessed against Tenant and paid by Landlord or both): water and sewer
charges; accounting; legal and other necessary consulting fees; the net cost
and expense of insurance for which Landlord is responsible hereunder or
which Landlord or any first mortgagee with a lien affecting the Premises
reasonably deems necessary in connection with the operation of the Building:
utilities; janitorial services; security; labor; parking charges; utilities
surcharges; or any other costs levied assessed or imposed by, or at the
direction of, or resulting from statutes or regulations or interpretations
thereof promulgated by any federal, state, regional, municipal or local
government authority in connection with the use or occupancy of the Building
or the Premises or the parking facilities serving the Building or the
Premises; the cost (amortized over such reasonable period as Landlord shall
determine together with interest at the maximum rate allowed by law on the
unamortized balance) of any capital improvements made to the Building or the
Common Areas by the Landlord or replacement of any building equipment needed
to operate the Building or the Common Areas at the same quality levels as
prior to the replacement costs incurred in the management of the Building,
if any (including supplies, wages and salaries of employees used in the
management, operation and maintenance of the Building, and payroll taxes and
similar governmental charges with respect thereto. Building management
office rental, a management fee and, in the event Landlord is directly
participating in the administration of the Building, an administrative fee
in the amount of Landlord's actual adjusted expenses, such administrative
fee not to exceed ten (10%) percent of the annual adjusted Operating
Expenses excluding therefrom such fee); air conditioning; waste disposal;
heating; ventilating; elevator maintenance; supplies; materials; equipment;
tools; repair and maintenance of the structural portions of the Building,
including the plumbing, heating, ventilating, air conditioning andelectrical
systems installed or furnished by Landlord; maintenance costs, including
utilities and payroll expenses, rental of personal property used in
maintenance, and all other upkeep of all parking and Common Areas; costs and
expenses of gardening and landscaping; maintenance of signs (other than
Tenant's signs): personal property taxes levied on or attributable to
personal property used in connection with the entire building, including the
Common Areas; reasonable audit or verification fees; and costs and expenses
ofrepairs, resurfacing, repairing, maintenance, painting, lighting,
cleaning, refuse removal, security and similar items, including appropriate
reserves. Operating Expenses shall not include depreciation on the Building
or equipment therein. Landlord's executive salaries or real estate brokers'
commissions.
As used herein, the term "real property taxes"* shall include any form of
assessment, license fee, license tax, business license fee, commercial
rental tax, levy, charge, tax or similar imposition, imposed by any
authority having the direct power to tax, including any city, county, state
or federal government, or any school, agricultural, lighting, drainage or
other improvement or special assessment district thereof, as against any
legal or equitable interest of Landlord in the Premises, including, but not
limited to, the following:
(i) any tax on Landlord's "right" to other income from the Premises or as
against Landlord's business of leasing the Premises;
*Tenant shall not be liable for any increase in real property taxes from any
assessment or reassessment of the Building ,or project to the extent that
any such increases arises out of or results from any initial sale or
transfer of all or any part of or interest in the Building by KZ3 during the
initial Lease term. Tenant shall be obligated for any such increase
resulting from any subsequent sale or transfer or resulting from any sale or
transfer that occurs after the KC1 8/85 expiration of the initial Lease term
(i.e. 4 during any option period).
(ii) any assessment, tax, fee, levy or charge in substitution,
partially or totally, of any assessment, tax, fee. levy or charge previously
included within the definition of real estate tax, including but not limited
to, any assessments, taxes, fees, levies and charges that may be imposed by
governmental agencies for such services as fire protection, street. sidewalk
and road maintenance, refuse removal and for other governmental services
formerly provided without charge to property owners or occupants. It is the
intention of Tenant and Landlord that all such new and increased
assessments, taxes, fees, levies and charges be included within the
definition of "real property taxes" for the purposes of this Lease;
(iv) any assessment, tax, fee, levy or charge upon this transaction or
any document to which Tenant is a party creating or transferring an interest
or an estate in the Promises.
Notwithstanding any provision of this Subparagraph 6(a) expressed or
implied to the contrary. "real property taxes" all not include Landlord's
federal or state income, franchise, inheritance or estate taxes.
(b) if Tenant's Percentage of the Operating Expenses paid or incurred
by Landlord for any calendar year exceeds the Operating Expense Allowance
included in Tenant's rent, then Tenant shall pay such excess as additional
rent. For each calendar year during the term of the Lease, or portion
thereof, Tenant shall pay its percentage of Landlord's estimate of the
amount by which Operating Expenses for that year shall exceed the Operating
Expense Allowance, which estimate may be changed not more than three (3)
times annually by Landlord. This estimated amount shall be divided into
twelve (12) equal monthly installments. Tenant shall pay to Landlord,
concurrently with the regular monthly rent payment next due following the
receipt of the estimate for the first calendar year of the Lease term
following 1992 an amount equal to one monthly installment multiplied by the
number of months from January 1, 1993 to the month of such payment, both
months inclusive. Subsequent installments shall be payable concurrently with
the regular monthly rent payments for the balance of that calendar year and
shall continue until the next calendar year's estimate is rendered. If, in
any calendar year, Tenant's Percentage of actual Operating Expenses is less
than the estimate for that year, then upon receipt of Landlord's statement,
any overpayment made by Tenant on the monthly installment basis shall be
credited towards the next monthly rent falling due and the estimated monthly
installments of Tenant's Percentage of Operating Expenses shall be adjusted
to reflect such lower Operating Expenses for the most recent calendar year.
Similarly, if Tenant's percentage of the actual Operating Expenses for any
calendar year is greater than the estimated payment made by Tenant for
such year, Tenant shall pay the amount of Such
difference to Landlord on the regular monthly rent payment date next
following Tenant's receipt of Landlord's statement of actual Operating
Expenses. However, if Landlord's estimate exceeds annual operating expenses
by more than 20%, Tenant shall, be credited the difference plus interest of
the then prevailing prime rate.
(C) Even though the term has expired and Tenant has vacated the
Premises, when final determination is made of Tenant's Percentage of
Operating Expenses for the year in which this Lease terminates. Tenant shall
immediately pay any increase due over the estimated expenses paid and,
conversely, any overpayment made in the event said expenses decrease shall
be rebated by Landlord to Tenant. SEE RIDER, ITEM #66
7. SECURITY DEPOSIT.
Tenant has deposited with Landlord the Security Deposit designated in
Subparagraph 1(r). Said sum shall be held by Landlord as security for the
faithful performance by Tenant of all of Tenant's obligations hereunder. If
Tenant defaults with respect to an provision of this Lease, including, but
not limited to, the provisions relating to the payment of rent. Landlord may
(but shall not be required to) use, apply or retain all or any part of this
Security Deposit for the payment of any rent or any other sum in default, or
for the payment of any other amount which Landlord may spend or become
obligated to spend by reason of Tenant's default or to compensate Landlord
for any other loss or damage which Landlord may suffer by reason of Tenant's
default. If any portion of the Security Deposit is so used or applied,
Tenant shall, upon demand, deposit cash with Landlord in an amount
sufficient to restore the Security Deposit to its original amount. Tenant's
failure to do so shall be a material breach of this Lease. Landlord shall
not be required to keep this Security Deposit separate from its general
funds, and Tenant shall not be entitled to interest on such Security
Deposit. If Tenant shall fully and faithfully perform all of its obligations
under this Lease. the Security Deposit or any balance therefore shall be
returned to Tenant (or, at Landlord's option, to the last assignee to
Tenant's interests hereunder) at the expiration of the Lease term provided
that Landlord may retain the Security Deposit until such time as any amount
due from Tenant in accordance with Paragraph 6 hereof has been determined
and paid in full. Should Landlord sell its interest in the Premises during
the term hereof and if Landlord deposits with the purchaser thereof the then
unappropriated funds deposited by Tenant as aforesaid, thereupon Landlord
shall be discharged from any further liability with respect to the Security
Deposit.
8. USE.
Tenant shall use the Premises for the uses set forth in Subparagraph
1(v) above. and shall not use or permit the Premises to be used for any
other purpose without the prior written consent of Landlord. Nothing
contained herein shall be deemed to give Tenant any exclusive right to such
use in the Building. Tenant shall not use or occupy the Premises in
violation of law or of the Certificate of Occupancy issued for the Building,
and shall, upon written notice from Landlord, discontinue any use of the
Premises which is declared by any governmental authority having jurisdiction
to be a violation of law or of said Certificate of Occupancy. Tenant shall
comply With any director of any governmental authority having jurisdiction
which shall. by reason of the nature of Tenant's use or occupancy of the
Premises, impose any duty upon Tenant or Landlord with respect to the
Premises or with respect
Landlord has supplied Tenant with and
to the use or occupation thereof. Tenant shall comply with all rules,
orders, regulations and requirements of the Pacific Fire Rating Bureau or
any other organization performing a similar function. Tenant shall promptly,
upon demand, reimburse Landlord any additional premium charged for such
policy by reason of Tenant's failure to comply with the provisions of this
Paragraph. Tenant shall do or permit anything to be done in or about the
Premises which will in any way obstruct or interfere with the rights of
other tenants or occupants of the Building, or injure or annoy them, or use
or allow the Premises to be used for any improper, immoral, unlawful or
objectionable purpose, nor shall Tenant cause, maintain or permit any
nuisance in, on or about the Premises. Landlord has supplied Tenant with,
and Tenant shall comply with all restrictive covenants and obligations
created by private contracts which affect the use and operation of the
Premises, the Building, the Common Area or the Development. Tenant shall not
commit or suffer to be committed any waste in or upon the Premises and shall
keep the Premises in first class repair and appearance. Further, Tenant's
business machines and mechanical equipment which cause vibration or noise
that may be transmitted to the Building structure or to any other space in
the Building shall be so installed, maintained and used by Tenant as to
eliminate such vibration or noise.
9. NOTICES.
Any notice required or permitted to be given hereunder must be in
writing and may be given by personal delivery or by mail. and if given by
mail shall be deemed sufficiently given if sent by registered or certified
mail addressed to Tenant at the Building. or to Landlord at both of the
addresses designated in Subparagraph 1(b). Either party may specify a
different address for notice purposes by written notice to the other. except
that the Landlord may in any event use the Premises as Tenant's address for
notice purposes.
10. BROKERS.
Tenant warrants that it has had no dealings with any real estate
broker or agent in connection with the negotiation of this Lease, except for
those certain brokers whose names are set forth in Subparagraph 1(s) whose
commission shall be payable by Landlord, and that it knows of no other real
estate broker or agent who is or might be entitled to a commission in
connection with this Lease. it Tenant has dealt with any other person or
real estate broker with respect to leasing or renting space in the Building,
Tenant shall be solely responsible for the payment of any fee due said
person or firm and Tenant shall hold Landlord free and harmless against any
liability in respect thereto, including attorneys' fees and costs.
11. HOLDING OVER.
If Tenant hold over after the expiration or earlier termination of the
term hereof without the express written consent of Landlord Tenant shall
become a Tenant sufferance only, at a rental rate of one hundred twenty five
percent (125%) of the rent in effect upon the date of such expiration
(subject to adjustment as provided in Paragraph 6 hereof and prorated on a
daily basis), and otherwise subject to the terms, covenants and conditions
herein specified so far as applicable Acceptance by Landlord of rent after
such expiration or earlier termination shall not result in a renewal of this
Lease. The foregoing provisions of this Paragraph 11 are in addition to and
do not affect Landlord's right of re-entry or any rights of Landlord
hereunder or as otherwise provided by law. If Tenant fails to surrender the
Premises upon the expiration of this Lease despite demand to do so by
Landlord, Tenant shall indemnity and hold Landlord harmless from all loss or
liability, including without limitation, any claim made by any succeeding
tenant founded on or resulting from such failure to surrender and any
attorneys fees and costs. Subject to Landlord's sole discretion, if
Landlord and Tenant are negotiating in good faith towards the extension of
this Lease not provided for in Rider, Item #59, Landlord may waive this
holding over rental rate for a maximum of sixty (60) days or until Landlord
determined Tenant to be no longer negotiating in reasonably good faith
towards the extension of this Lease.
12. TAXES ON TENANT'S PROPERTY.
(a) Tenant shall be liable for and shall pay, at least ten (10) days
before delinquency, all taxes Wed against any personal property or trade
fixtures placed by Tenant in or about the Premises. If any such taxes on
Tenant's personal property or trade fixtures are levied against Landlord or
Landlord's property or if the assessed value of the Premises is increased by
the inclusion therein of a value placed upon such personal property or trade
fixtures of Tenant and if Landlord, after written notice to Tenant. pays the
taxes based upon- such increased assessment. which Landlord shall have the
right to do regardless of the validity thereof. but only under proper
protest if requested by Tenant, Tenant shall, upon demand, repay to Landlord
the taxes so levied against Landlord. or the portion of such taxes resulting
from such increase in the assessment.
(b) If the Tenant Improvements in the Premises, whether installed.
and/or paid for by Landlord or Tenant and whether or not affixed to the real
property so as to become a part thereof. are assessed for real property tax
purposes at a valuation higher than the valuation at which tenant
improvements conforming to Landlord's "Building Standard" for other space in
the Building are assessed, then the real property taxes and assessments
levied against the Building by reason of such excess assessed valuation
shall be deemed to be taxes levied against personal property of Tenant and
shall be governed by the provisions of Paragraph 12(a) above. If the records
of the County Assessor are not available or sufficiently detailed to serve
as a basis for making said determination, the actual cost of construction
shall be used.
13. CONDITION OF PREMISES.
Tenant acknowledges that neither Landlord nor any agent of Landlord
has made any representation or warranty with respect to the Premises or the
Building with the exception that the Building mechanicals shall function in
accordance with their designed use or with respect to the suitability of
either for the conduct of Tenant's business except punch list items.
The taking of possession of the Premises by Tenant shall conclusively
establish that the Premises and the Building were in satisfactory condition
at such time. Without limiting the foregoing, Tenant's execution of the
Notice attached hereto as EXHIBIT "C" shall constitute a specific
acknowledgment and acceptance of the various startup inconveniences that may
be associated with the use of the Building's Common Areas such as certain
construction obstacles including scaffolding, delays in use of freight
elevator service, certain elevators not being available to Tenant, the
passage of work crews using elevators, uneven air conditioning services and
other typical conditions incident to recently constructed office buildings.
14. ALTERATIONS.
(a) Tenant shall make no alterations, additions or improvements in or
to the Premises without Landlord's prior written consent, and then only by
contractors or mechanics approved by Landlord. Tenant shall submit to
Landlord plans and specifications
for any proposed alterations, additions or improvements to the Premises, and
may, not make such alterations, additions or improvements until Landlord has
approved of such plans and specifications. Tenant shall construct such
alterations, additions or improvements in accordance with the plans and
specifications approved by Landlord, and shall not amend or modify such
plans and specifications without Landlord's prior written consent. If the,
proposed change requires the consent or approval of any lessor of a superior
lease, or the holder of a mortgage encumbering the Premises, such consent or
approval must be secured prior to the construction of such alteration,
addition or improvement that shall not be unreasonably withheld. Tenant
agrees that there shall be no construction of partitions or other
obstructions which might interfere with Landlord's free access to mechanical
installations or service facilities of the Building or interfere with the
moving of Landlord's equipment to or from the enclosures containing said
installations or facilities. All such work shall be done at such times and
in such manner as Landlord may from time to time designate. Tenant covenants
and agrees that all work done by Tenant shall be performed in full
compliance with all laws, rules. orders, ordinances, regulations and
requirements of all governmental agencies, offices and boards having
jurisdiction, and in full compliance with the rules. regulations and
requirements of the Pacific Fire Rating Bureau, and of any similar body.
Before commencing any work, Tenant shall give Landlord at least ten (10)
days written notice of the proposed commencement of such work and shall, it
required by Landlord, secure at Tenant's own cost and expense, a completion
and lien indemnity bond satisfactory to Landlord for said work. Tenant
further covenants and agrees that any mechanic's lien filed against the
Premises or against the Building for work claimed to have been done for, or
materials claimed to have been furnished to Tenant, will be discharged by
Tenant, by bond or otherwise. within (10) ten days after the filing thereof,
at the cost and expense of Tenant. All alterations, additions or
improvements upon the Premises made by either party, including (without
limiting the generality of the foregoing) all wall covering, built-in
cabinet work. paneling and the like, shall, unless Landlord elects
otherwise, become the property of Landlord, and shall remain upon, and be
surrendered with the Premises, as a part thereof, at the end of the term
hereof, except that Landlord may, by written notice to Tenant, require
Tenant to remove all partitions, counters, railings and the like installed
by Tenant, and Tenant shall repair all damage resulting from such removal
or, at Landlord's option, shall pay to Landlord all costs arising from such
removal.
(b) All articles of personal property and all business and trade
fixtures. machinery and equipment, furniture and movable partitions owned by
Tenant or installed by Tenant at its expense in the Premises shall be and
remain the property of Tenant and. may be removed by Tenant at any time
during the lease term when Tenant is not in default hereunder. If Tenant
shall fail to remove all of its effects from the Premises upon termination
of this Lease for any cause whatsoever. Landlord may, at its option, remove
the same in any manner that Landlord shall choose, and store said effects
without liability to Tenant for loss thereof. In such event Tenant agrees to
pay Landlord upon demand any and all expenses incurred in such removal,
including court costs and attorneys' fees and storage charges on such
effects, for any length of time that the same shall be in Landlord's
possession. Landlord may, at its option, without notice, sell said effects,
or any of the same, at private sale and without legal process, for such
price as Landlord may obtain and apply the proceeds of such sale upon any
amounts due under this Lease from Tenant to Landlord and upon the expense
incident to the removal and sale of said effects.
15. REPAIRS.
(a) By entry hereunder with the exception of punch list items, Tenant
accepts the Premises as being in good and sanitary order, condition and
repair, reasonable wear and tear excepted. Tenant shall keep, maintain and
preserve the Premises in first class condition and repair, and shall, when
and if needed, at Tenant's sole cost and expense, make all repairs to the
Premises and every part thereof. Tenant shall, upon the expiration or sooner
termination of the term hereof, surrender the Premises to Landlord in the
same condition as when received, usual and ordinary wear and tear excepted.
Landlord Shall have no obligation to alter, remodel, improve, repair,
decorate or paint the Premises or any part thereof. The parties hereto
affirm that Landlord has made no representations to Tenant respecting the
condition of the Premises or the Building or the Common Area except as
specifically herein set forth.
(b) Anything contained in Paragraph 15(a) above to the contrary
notwithstanding, Landlord shall repair and maintain the structural portions
of the Building and the plumbing, heating, ventilating, air conditioning,
elevator and electrical systems installed or furnished by Landlord, unless
such maintenance and repairs are caused in part or in whole by the act,
neglect or omission of any duty by Tenant, its agents, servants, employees,
or invitees, in which case Tenant shall pay to Landlord, as additional rent,
the reasonable cost of such maintenance and repair Landlord shall not be
liable for any failure to make any such repairs or to perform any
maintenance unless such failure shall result in an unreasonable interference
with Tenant's business or shall persist for an unreasonable time after
written notice of the need of such repairs or maintenance is given to
Landlord by Tenant. Except as provided in Paragraph 23 hereof, there shall
be no abatement of rent and no liability of Landlord by reason of any injury
to or interference with Tenant's business arising from the making of any
repairs, alterations or improvements in or to any portion of the Building or
the Premises or in or to fixtures, appurtenances
and equipment therein. Tenant waives the right to make repairs at
Landlord's expense under any law, statute or ordinance now or hereafter in
effect.
(c) Tenant's Self-Help Rights. Tenant waives the right to make
repairs at Landlord's expense under any law, statute or ordinance now or
hereafter in effect (including the provisions of California Civil Code
Section 1942 and any successive sections or statutes of a similar nature);
provided, however, subject to the termination rights set forth in Paragraph
23 and 24, if Landlord fails to perform any maintenance or repair work
required pursuant to Subparagraph 15(b) above within thirty (30) days after
Landlord receives Tenant's written ,notice of the need for such repairs (or
such period of time in excess of thirty (30) days as is reasonably necessary
based upon the nature of such work), then Tenant shall be permitted to make
such repairs, using contractors reasonably approved by Landlord, following
delivery of an additional two (2) days' prior written notice to Landlord
indicating that Tenant will be undertaking such repairs, and Tenant shall be
entitled to recover from Landlord the reasonable and documented costs of
such repairs made by Tenant, but without any off-set rights against rent or
any other amounts payable by Tenant under this Lease. If Tenant makes any
such repairs pursuant to this Subparagraph 15(b), the performance of such
repairs shall be done in accordance with the provisions of this Lease
including, without limitation, Paragraphs 14 and 16 hereof.
16. LIENS.
Tenant shall not permit any mechanic's materialmen's or other liens to be
filed against all or any part of the Development, the Building or the
Premises, nor against Tenant's leasehold interest in the Premises, by reason
of or in connection with any repairs, alterations, improvements or other
work contracted for or undertaken by Tenant or any other act or omission of
Tenant or Tenant's agents, employees, contractors, licensees or invitees.
Tenant shall, at Landlord's request, provide Landlord with enforceable,
conditional and final lien releases (and other evidence reasonably requested
by Landlord to demonstrate protection from liens) from all persons
furnishing labor and/or materials with respect to the Premises. Landlord
shall have the right at all reasonable times to post on the Premises and
record any notices of non-responsibility which it deems necessary for
protection from such liens. If any such liens are filed, Tenant shall, at
its sole cost, immediately cause such liens to be released of record or
bonded so that it no longer affects title to the Development, the Building
or the Premises. If Tenant fails to cause any such liens to be so released
or bonded within ten (10) days after filing thereof, such failure shall be
deemed a material breach by Tenant under this Lease without the benefit of
any additional notice or cure period described in Paragraph 25
below, and Landlord may, without waiving its right and remedies based on,
such breach, and
without releasing Tenant from any of its obligations, cause such lien to be
released by any means it shall deem proper, including payment in
satisfaction of the claim giving rise to such lien. Tenant shall pay to
Landlord within five (5) days after receipt of invoice from Landlord, any
sum paid by Landlord to remove such liens, together with interest at the
Interest Rate from the date of such payment by Landlord.
17. ENTRY BY LANDLORD.
Landlord reserves and shall at any and times have the right to enter
the Premises to inspect the same, to supply janitor service and any other
service to be provided by Landlord to Tenant hereunder, to show the Premise
to prospective purchases or tenants, to post notices of non-responsibility,
to reasonably alter, improve or repair the Premises or any of the portion of
the Building all without being deemed guilty of any eviction of Tenant and
without abatement of rent. Landlord may in order to carry out such
purposes, erect scaffolding and other necessary structures where reasonably
required by the character of the work to be performed, provided that the
business of Tenant shall be interfered with as little as reasonably
practicable. If Landlord is diligent in completing such alterations,
improvements or repairs, then Tenant hereby waives any claim for damages for
any injury or inconvenience to or interference with Tenant's business, any
loss of occupancy or quiet enjoyment of the Premises, and any other loss in,
upon and about the Premises. Landlord shall at all times have and retain a
key with which to unlock all doors in the Premises, excluding Tenant's
vaults and safes. Landlord shall have the right to use any and all means
which Landlord may deem proper to open said doors in an emergency in order
to obtain entry to the Premises. Any entry to the Premises obtained by
Landlord by any of said means, or otherwise, shall not be construed or
deemed to be a forcible or
unlawful entry into the Premises, or an eviction of Tenant from the Premises
or any portion thereof, and any damages caused on account thereof shall be
paid by Tenant. It is understood and agreed that no provision of this Lease
shall be construed as obligating Landlord to perform any repairs,
alterations or decorations other than those consistent for maintaining a
class "A" Building, except as otherwise expressly agreed herein by Landlord.
18. UTILITIES AND SERVICES.
Provided that Tenant is not in material default under this Lease,
Landlord agrees to furnish or cause to be furnished to the Premises the
utilities and services described in the Standards for Utilities and
Services, attached hereto as EXHIBIT I'D' subject to the conditions and in
accordance with the standards set forth therein. Landlord's failure to
furnish any of the foregoing items where such failure is caused by (I)
accident, breakage or repairs; (ii) strikes. lockouts or other labor
disturbance or labor dispute of any character; (iii) governmental
regulation, moratorium or other governmental action: (iv) inability despite
the exercise of reasonable diligence to obtain electricity, water or fuel;
or by (v) any other cause beyond Landlord's reasonable control, shall not
result in any liability to Landlord. In addition. Tenant shall not be
entitled to any abatement or reduction of rent by reason of such failure. no
eviction of Tenant shall result from such failure and Tenant shall not be
relieved from the performance of any covenant or agreement in this Lease
because of such failure. In the event of any failure, stoppage or
interruption thereof, Landlord shall diligently attempt to resume service
promptly. If Tenant requires or utilizes more water or electrical power than
is projected at the date of this Lease, Landlord may at its option require
Tenant to pay, as additional rent, the cost, as fairly determined by
Landlord, incurred by such extraordinary usage. In this case, Landlord may
install separate meter(s) for the Premises, at Tenant's sole expense,
and Tenant thereafter shall pay all charges of e utility providing service
and Landlord shall make appropriate adjustment to account for the fact
Tenant is directly paying such metered charges.
19. BANKRUPTCY.
If Tenant shall file a petition in bankruptcy under any provision of
the Bankruptcy Code as then in effect, or if Tenant shall be adjudicated a
bankrupt in involuntary bankruptcy proceedings and such adjudication shall
not have been vacated within sixty (60) days from the date thereof, or if a
receiver or trustee shall be pointed of Tenant's property and the order
appointing such receiver of trustee shall not be set aside or vacated within
sixty (60) days after the entry thereof, or if Tenant shall assign Tenant's
estate or effects for the benefit of creditors, or if this Lease shall, by
operation of law or otherwise, pass to any person or persons other than,
Tenant, then in any such event Landlord may terminate this Lease, it
Landlord so elects, with or without notice of such election and with or
without entry or action by Landlord. In such case, notwithstanding any other
provisions of this Lease, Landlord in addition to any and all rights and
remedies allowed by law or equity, shall, upon such termination, be entitled
to recover damages in the amount provided in Paragraph 25(b) hereof. Neither
Tenant nor any person claiming through or under Tenant or by virtue of any
statute or order of any court shall be entitled to possession of the
Premises but shall surrender the Premises to Landlord.
Nothing contained herein shall limit or prejudice the right of Landlord to
recover damages by reason of any such termination equal to the maximum
allowed by any statute or rule of law in effect at the time when, and
governing the proceedings in which, such damages are to be proved; whether
or not such amount is greater, equal to or less than the amount of damages
recoverable under the provisions of this Paragraph 19.
20. INDEMNIFICATION AND EXCULPATION OF LANDLORD.
(a) Tenant shall indemnity, defend and hold Landlord harmless from all
claims arising from Tenant's use of the Premises the conduct of its business
or from any activity, work or thing done, permitted or suffered by Tenant in
or about the Premises,
the Building or the Common Area, except to the extent caused by the
negligence by Landlord. Tenant shall further indemnity, defend and hold
Landlord harmless from all claims arising from any breach or default in the
pert rmance of any obligation to be performed by Tenant under the terms of
this Lease, or arising
from any act, neglect, fault or omission of Tenant or of its agents or
employees, and from and against all costs, attorneys expenses and
liabilities incurred in or about such claim or any action or proceeding
brought thereon. In case any action or proceeding shall be brought against
Landlord by reason of any such claim, Tenant, upon notice from Landlord,
shall defend the same at Tenant's expense by counsel approved in writing by
Landlord. Tenant, as a material part of the consideration to Landlord,
hereby assumes all risk of damage to property or injury to person in, upon
or about the Premises from any cause whatsoever except the failure that
which is caused by the gross negligence or willful misconduct of Landlord or
the failure of Landlord to observe any of the terms and conditions of this
Lease where such failure has persisted for an unreasonable period of time
after written notice of such failures. Tenant hereby waives all its claims
in respect thereof against Landlord.
(b) Neither Landlord nor any partner, director, officer, agent or
employee of Landlord shall be liable to Tenant or its partners directors,
officers, contractors, agents, employees, invitees, sublessees or licensees,
for any loss, injury or damage to Tenant or to any other person, or to its
or their property, irrespective of the cause of such injury, damage or loss,
unless caused the negligence or willful misconduct of Landlord or its
employees. Further, neither Landlord nor any partner, director, officer,
agent or employee of Landlord shall be liable (I) for any such damage caused
by other lessees or persons in or about the Building, or caused by
quasi-public work unless permitted or authorized by Landlord; or (ii) for
consequential damages arising out of any loss of the use of the Premises of
any equipment or facilities therein by Tenant or any person claiming through
or under Tenant.
21. DAMAGE TO TENANT'S PROPERTY.
Notwithstanding provisions of Paragraph 20 to the contrary, Landlord
or its agents shall not be liable for (i) any damage to any property
entrusted to employees of the Building, (ii) loss or damage to any property
by theft or otherwise, (iii) any injury or damage to persons or property
resulting from fire, explosion, falling plaster, steam. gas, electricity,
water or rain which leak from any part of the Building or from the pipes,
appliances or plumbing work therein or from the roof, street or sub-surface
or from any other place or resulting from dampness or any other cause
whatsoever. Landlord or its agents shall not be liable for interference with
light or other incorporeal hereditaments. Tenant shall give prompt notice
to Landlord in case of fire or accidents in the Premises or in the Building
or of defects therein or in the fixtures or equipment.
22. TENANT'S INSURANCE.
(a) Tenant shall. during the term hereof and any other period of
occupancy, at its sole cost and expense, keep in full force and effect the
following insurance:
(i) Standard form property insurance insuring against the perils
of fire, extended coverage, vandalism, malicious mischief, special extended
coverage ("All-Risk") and sprinkler leakage. This insurance policy shall be
upon all property owned by Tenant,
for which Tenant is legally liable or that was installed at Tenant's
expense, and which is located in the Building including, without limitation,
furniture, fittings. installations, fixtures (other than Tenant improvements
installed by Landlord), and any other personal property, in an amount not
less than ninety percent (90%) of the full replacement cost thereof. In the
event that there shall a dispute as to the amount which comprises full
replacement cost, the decision of Landlord or any mortgagees of Landlord
shall be reasonable and conclusive. This insurance policy shall also be upon
direct or indirect loss of Tenant's earnings attributable to Tenant's
inability to use fully or obtain access to the Premises or Building in an
amount as will properly reimburse Tenant. Such policy shall name Landlord
and any mortgagees of Landlord as insured parties, as their respective
interests may appear.
(ii) Comprehensive General Liability Insurance insuring Tenant
against any liability arising out of the lease, use, occupancy or
maintenance of the Premises and all areas appurtenant thereto. Such
insurance shall be in the amount of $1,000,000 with a 3,000,000 aggregate
limit Combined Single Limit for injury to, or death of one or more persons
in an occurrence. and for damage to tangible property (including loss of
use) in an occurrence, with such liability amount to be adjusted from year
to year to reflect increases in the Consumer Price Index. The policy shall
insure the hazards of the Premises and Tenant's Operations thereon,
independent contractors, contractual liability (covering the indemnity
contained in Paragraph 20 hereof) and shall (1) name Landlord as an
additional insured, (2) contain a cross liability provision and (3) contain
a provision that the insurance provided the Landlord hereunder shall be
primary and non-contributing with any other insurance available to the
Landlord.
(iii) Workmen's Compensation and Employer's Liability insurance
(as required by state law).
(iv) Any other form or forms of insurance as Tenant or Landlord
or any mortgagees of Landlord may reasonably require tram time to time in
form, in amounts and for insurance risks against which a prudent tenant
would protect itself.
(b) All policies shall be written in a form satisfactory to Landlord
and shall be taken out with insurance companies holding a General
Policyholders Rating of "A" and a Financial Rating of "X" or better, as set
forth in the most current issue of Bests Insurance Guide. Within ten (10)
days after the execution of this Lease, Tenant shall deliver to Landlord
copies of policies or certificates evidencing the existence of the amounts
and forms of coverage satisfactory to Landlord. No such policy shall be
cancellable or reducible in coverage except after thirty (30) days prior
written notice to Landlord. Tenant shall, within ten (10) days prior to the
expiration of such policies, furnish Landlord with renewals or "binders"
thereof, or Landlord may order such insurance and charge the cost thereof to
Tenant as additional rent, it Landlord obtains any insurance that is the
responsibility of Tenant under this Paragraph, Landlord shall deliver to
Tenant a written statement setting forth the cost of any such insurance and
showing in reasonable detail the manner in which it has been computed.
(c) During the term of this Lease, Landlord shall insure the Building
(excluding any property which Tenant is obligated to insure under
Subparagraphs 22(a) and (b) hereof) against damage with All -Risk insurance
and public liability insurance, all in such amounts and with such deductions
as Landlord considers appropriate and is reasonable and consistent with a
class "A" Building. Landlord may, but shall not be obligated to, obtain
and carry any other form or forms of insurance as it or Landlord's
mortgagees may determine advisable. Notwithstanding any contribution by
Tenant to the cost of insurance premiums, as provided herein, Tenant
acknowledges that it has no right to receive any proceeds from any insurance
policies carried by Landlord.
(d) Tenant will not keep, use, sell or offer for sale in or upon the
Premises any article which may be prohibited by any Insurance policy
periodically in force covering the Building. If Tenant's occupancy or
business in, or on, the Premises. whether or not Landlord has consented to
the same, results in any increase in premiums for the insurance periodically
carried by Landlord with respect to the Building, Tenant shall pay any such
increase in premiums as additional rent within ten (10) days after being
billed therefore by Landlord. In determining whether increased premiums are
a result of Tenant's use of the Premises, a schedule issued by the
organization computing the insurance rate on the Building or the Tenant
Improvements showing the various components of such rate, shall be
conclusive evidence of the several items and charges which make up such
rate. Tenant shall promptly comply with all reasonable requirements of the
insurance authority or any present or future insurer relating to the Premises.
(e) If any of Landlord's insurance policies shall be canceled or
cancellation shall be threatened or the coverage thereunder reduced or
threatened to be reduced in any way because of the use of the Premises or
any part thereof by Tenant or any assignee or subtenant of Tenant or by
anyone Tenant permits on the Premises and, if Tenant fails to remedy the
condition giving rise such cancellation, threatened cancellation, threatened
reduction of coverage, increase in premiums, threatened increase in
premiums, within forty-eight (48) hours or a longer period if reasonably
necessary, after notice thereof, Landlord may, at its option, either
terminate this Lease or enter upon the Premises and attempt to remedy such
condition, and Tenant shall promptly pay the cost thereof to Landlord as
additional rent. Landlord shall not be liable for any damage or injury
caused to any property of Tenant or of others located on the Premises
resulting from such entry. If Landlord is unable, or elects not to remedy
such condition, then Landlord shall have all of the remedies provided for in
this Lease in the event of a default by Tenant. Notwithstanding the
foregoing provisions of this Subparagraph 22(e), if Tenant fails to remedy
as aforesaid, Tenant shall be in default of its obligation hereunder and
Landlord shall have no obligation to remedy such default.
(f) All policies of insurance required hereunder shall include a
clause or endorsement denying the insurer any rights of subrogation against
the other party to the extent rights have been waived by the insured before
the occurrence of injury of loss. Landlord and Tenant waive any rights of
recovery against the other for injury or loss due to hazards covered by
policies of insurance containing such a waiver of subrogation clause or
endorsement to the extent of the injury or loss covered thereby.
23. DAMAGE OR DESTRUCTION.
(a) In the event the Building and/or the Premises is damaged by fire
or other perils covered by Landlord's insurance, Landlord shall:
(I) In the event of total destruction if in Landlord's
reasonable estimation the Building and the Premises can be restored within
180 days, then at Landlord's option, as soon as reasonably possible
thereafter, commence repair reconstruction and restoration of the Building
and/or the Premises and prosecute the same diligently to completion, in
which event this Lease shall remain in full force and effect; or within
sixty (60) days after such damage, elect not to so repair, reconstruct or
restore the Building and/or the Premises, in which event this Lease shall
terminate. In either event, Landlord shall give Tenant written notice of its
intention within said sixty (60) day period. In the event Landlord elects
not to restore the Building and/or the Premises, this Lease shall be deemed
to have terminated as of the date of such total destruction.
(ii) In the event of a partial destruction of the Building
and/or the Premises, to an extent not exceeding twenty-five percent (25%) of
the full insurable value thereof, and if the damage thereto is such that the
Building and/or the Premises may be repaired, reconstructed or restored
within a period of ninety (90) days from the date of the happening of such
casualty, and if Landlord will receive insurance proceeds sufficient to
cover the cost of such repairs. then Landlord shall commence and proceed
diligently with the work of repair, reconstruction and restoration and this
Lease shall continue in full force and effect. If such work of repair,
reconstruction and restoration shall require a period longer than ninety
(90) days or exceeds twenty-rive percent (25%) of the full insurable value
thereof, or if said insurance proceeds will not be sufficient to cover the
cost of such repairs, then Landlord either may elect to so repair,
reconstruct or restore and the Lease shall continue in full force and effect
or Landlord may elect not to so repair, reconstruct or restore and the Lease
shall then terminate. Under any of the conditions of this Subparagraph
23(a)(ii), Landlord shall give written notice to Tenant of its intention
within said sixty (60) day period. In the event Landlord elects not to
restore the Building and/or the Premises, this Lease shall be deemed to have
terminated as of the date of such partial destruction.
(b) Upon any termination of this Lease under any of the provisions of
this Paragraph 23, the parties shall be released without further obligation
to the other from the date possession of the Premises is surrendered to
Landlord except for items which have therefore accrued and are then unpaid.
(c) In the event of repair, reconstruction and restoration by Landlord
as herein provided, the rental payable under this lease shall be abated
proportionately with the degree to which Tenant's use of the Premises is
impaired during the period of such repair,
reconstruction or restoration; provided that there shall be no abatement of
rent if such damage is the result of Tenant's negligence or intentional
wrongdoing. Tenant shall not be entitled to any compensation or damages for
loss in the use of the whole or any part of the Premises and/or any
inconvenience or annoyance occasioned by such damage, repair, reconstruction
or restoration.
(d) Tenant shall not be released from any of its obligations under this
Lease except to the extent and upon the conditions expressly stated in this
Paragraph 23. Notwithstanding anything to the contrary contained in this
Paragraph 23, if Landlord is delayed or prevented from repairing or
restoring the damaged Premises within one (1) year after the occurrence of
such damage or destruction by reason of acts of God, war, governmental
restrictions, inability to procure the necessary labor or materials. or
other cause beyond the control of Landlord, Landlord, at its option, may
terminate this Lease, whereupon Landlord shall be relieved of its obligation
to make such repairs or restoration and Tenant shall be released from its
obligations under this Lease as of the end of said one year period.
(e) It damage is due to any cause other than fire or other peril covered by
extended coverage insurance. Landlord may elect to terminate this Lease.
(f) If Landlord is obligated to or elects to repair or restore as herein
provided, Landlord shall be obligated to make repair or restoration only of
those portions of the Building and the Premises which were originally
provided at Landlord's expense, the repair and the repair and restoration of
items not provided at Landlord's expense shall be the obligation of Tenant.
(g) Notwithstanding anything to the contrary contained in this Xxxxxxxxx
00, Xxxxxxxx shall not have any obligation whatsoever to repair, reconstruct
or restore the Premises when the damage resulting from any casualty covered
under this Paragraph 23 occurs during the last twelve (12) months of the
term of this Lease or any extension hereof., and in such event Lease shall
be terminated.
(h) The provisions of California Civil Code Section 1932, Subsection 2,
and Section 1933, Subsection 4, which permit termination of a lease upon
destruction of the leased premises, are hereby waived by Tenant; and the
provisions of this Paragraph shall govern in case of such destruction.
24. EMINENT DOMAIN.
(a) In case all of the Premises and/or parking area or such part thereof as
shall . substantially interfere with Tenant's use and occupancy there shall
be taken for any public or quasi-public purpose by any lawful power or
authority by exercise of the right of appropriation. condemnation or eminent
domain, or sold to prevent such taking, either party shall have the right to
terminate this Lease effective as of the date possession is required to be
surrendered to said authority. Tenant shall not assert any claim against
Landlord or the taking authority for any compensation because of such
taking, and Landlord shall be entitled to receive the entire amount of any
award without deduction for any estate or interest of Tenant. In the event
the amount of property or the type of estate taken shall not substantially
interfere with the conduct of Tenant's business, Landlord shall be entitled
to the entire amount of the award without deduction for any estate or
interest of Tenant, Landlord shall restore the Premises to substantially
their same condition prior to such partial taking, and a proportionate
allowance shall be made to Tenant for the rent corresponding to the time
during which. and to the part of the Premises of which, Tenant shall be so
deprived on account of such taking and restoration. Nothing contained in
this Subparagraph shall be deemed to give Landlord any interest in any award
made to Tenant for the taking of personal property and fixtures belonging to
Tenant.
(b) In the event of taking of the Premises or any part thereof for temporary
use. (I) this Lease shall be and remain unaffected thereby and rent shall
not xxxxx, and (ii) Tenant shall be entitled to receive for itself such
portion or portions of any award made for such use with respect to the
period of the taking which is within the term, provided that if such taking
shall remain in force at the expiration or earlier termination of this
Lease, Tenant shall then pay to Landlord a sum equal to the reasonable cost
of performing Tenant's obligations under Paragraph 15 with respect to
surrender of the Premises and upon such payment shall be excused from such
obligations. For purpose of this Subparagraph 24(b), a temporary taking
shall be defined as a taking for a period of 180 days or less.
25. DEFAULTS AND REMEDIES.
(a) The occurrence of any one or more of the following events shall
constitute a default hereunder by Tenant:
(I) The vacation or abandonment of the Premises by Tenant. Abandonment is
herein defined to include, but is not limited to. any, absence by Tenant
from the Premises for five (5) business days or longer while in default of
any provision of this Lease.
(ii) The failure by Tenant to make any payment of rent or additional rent or
any other payment required to be made by Tenant hereunder, as and when due,
where such failure shall continue for a period of three (3) days after
written notice thereof from Landlord to Tenant: provided, however, that any
such notice shall be in lieu of. and not in addition to, any notice under
California Code of Civil Procedure Section 1161 regarding unlawful detainer
actions.
(iii) The failure by Tenant to observe or perform any of the express or
implied covenants or provisions of the is Lease observed or performed by
Tenant, other than as specified in Subparagraph 25(a)(I) or (ii) above,
where such failure shall continue for a period of thirty (30) days after
written notice thereof from Landlord to Tenant. Any such notice shall be in
lieu of and not in addition to any notice required under California Code of
Civil Procedure Section 1161 regarding unlawful detainer actions. If the
nature of Tenant's default is such that more than thirty (30) days are
reasonably required for its cure, then Tenant shall not be deemed to be in
default if Tenant shall commence such cure within said = day period and
thereafter diligently prosecute such cure to completion.
(iv) (1) The making by Tenant of any general assignment the benefi of
creditors; (2) the filing by or against Tenant of a petition to have Tenant
adjudged a bankrupt or a petition for reorganization or a arrangement under
any law relating to bankruptcy (unless, in the case of a petition filed
against Tenant, the same is dismissed within sixty (60) days); (3) the
appointment of a trustee or receiver to take possession of substantially all
of Tenant's assets located at the Premises or of Tenant's interest in this
Lease where possession is not restored to Tenant within sixty (60);days: or
(4) the attachment, execution or other judicial seizure of substantially all
of Tenant's assets located at the Premises or of Tenant's interest in this
Lease where such seizure is not discharged within thirty (30) days.
(b) In the event of any such default by Tenant which is not cured within the
applicable cure period, in addition to any other remedies available to
Landlord at law or in equity Landlord shall have the immediate option to
terminate this Lease and all rights of Te nant hereunder. In the event that
Landlord shall elect to so terminate this Lease then Landlord may recover
from Tenant:
(i) The worth at the time of award of any unpaid rent which had been
earned at the time of such termination; plus
(ii) the worth at the time of award of the amount by which the unpaid rent
which would have been earned after termina. tion until the time of award
exceeds the amount of such rental loss that Tenant proves could have been
reasonable avoided; plus
(iii) the wonh,at the time of award of the amount by which the unpaid rent
for the balance of the term after the time of aw,*d exceeds the amount of
such rental loss that Tenant proves could be reasonably avoided, plus
(iv) any other amount necessary to compensate Landlord for all the
detriment proximately caused by Tenant's failure to perform Tenant's
obligations under this Lease or which in the ordinary course of things
would be likely to result therefrom.
As used in Subparagraphs 25(b) (i) and (li) above, the "Worth at the time
of award" is computed by allowing interest at the maximum rate permitted
by law. As used in Subparagraph 25(b) (iii) above, the "worth at the time
of award" is computed by discounting such amount at the discount rate of
the Federal Reserve Bank of San Francisco at the time of award plus one
percent (1%).
(c) In the event of any such default by Tenant, Landlord shall also have
the right, with or without terminating this Lease. to re-enter the
Premises and remove all persons and property from the Premises; such
properly may be removed and stored in a public warehouse or elsewhere at
the cost of and for the account of Tenant. No re-entry or taking
possession of the Premises by Landlord pursuant to this paragraph 25(c)
shall be construed as an election to terminate this Lease unless a written
notice of such intention is given to Tenant or unless the termination
thereof is decreed by a court of competent jurisdiction.
(d) In the event of the vacation or abandonment of the Premises by Tenant
or in the event that Landlord shall elect to re-enter as provided above or
shall take possession of the Premises pursuant to legal proceeding or
pursuant to any notice provided by law. then if Landlord does not elect to
terminate this Lease as provided above, Landlord may from time to time.
without terminating this Lease, either recover all rent as it becomes due
or relet the Premises or any part thereof for the term for this Lease on
terms and conditions as Landlord in its sole discretion may deem advisable
with the right to make alterations and repairs to the Premises.
In the event that Landlord shall elect to so relet, then rentals received
by Landlord from such reletting shall be applied: first. to the payment of
any indebtedness other than rent due hereunder from Tenant to Landlord;
second, to the payment of any cost of such reletting; third, to the
payment of the cost of any alterations and repairs to the Premises,
fourth, to the payment of rent due and unpaid hereunder and the residue,
if any, shall be held by Landlord and applied to payment of future rent as
the same may become due and payable hereunder. Should that portion of such
rentals received from such reletting during any month, which is applied to
the payment of rent hereunder, be less than the rent payable during that
month by Tenant hereunder, then Tenant shall pay such deficiency to
Landlord immediately upon demand therefore by Landlord. Such deficiency
shall be calculated and paid monthly. Tenant shall also pay to Landlord,
as soon as ascertained, any costs and expenses incurred by Landlord in
such reletting or in making such alterations and repairs not covered by
the rentals received from such reletting.
(e) All rights, options and remedies of Landlord contained in this Lease
shall be construed and held to be cumulative, and no one of them shall be
exclusive of the other, and Landlord shall have the right to pursue any
one or all of such remedies or any other remedy or relief which may be
provided by law, whether or not stated in this Lease. No waiver of any
default of Tenant hereunder shall be implied from any acceptance by
Landlord of any rent or other payments due hereunder or any omission by
Landlord to take any action on account of such default if such default
persists or is repeated, and no express waiver shall affect defaults other
than as specified in said waiver. The consent or approval of Landlord to
or of any act by Tenant requiring Landlord's consent or approval shall not
be deemed to waive' or render unnecessary Landlord's consent approval to
or of any subsequent similar acts by Tenant.
26. ASSIGNMENT AND SUBLETTING.
Tenant shall not voluntarily assign or encumber its interest in this
Lease or in the Premises or sublease all or any part of the Premises, or
allow any other person or entity to occupy or use all or any part of the
Premises, without first obtaining Landlord's prior written consent. Any
assignment, encumbrance or sublease without Landlord's prior written consent
shall be voidable at Landlord's election and shall constitute a default. For
purposes hereof, in the event Tenant is a partnership, a withdrawal or change
in one or more transfers of partners owning more than a fifty percent (50%)
interest in the partnership, or if Tenant is a corporation any transfer of
fifty percent (50%) of its stock in one or more transfers, shall constitute
a voluntary assignment and shall be subject to these provisions. No consent
to an assignment, encumbrance or sublease shall constitute further waiver of
the provisions of this Paragraph. Tenant shall notify Landlord in writing of
Tenant's intent to assign, encumber or sublease this Lease, the name of the
proposed assignee or subleasee, information concerning the financial
responsibility of the proposed assignee or subleasee and the terms of the
proposed assignment or subletting, and Landlord shall, within fifteen (15)
days of receipt of such written notice, and additional information requested
by Landlord concerning the proposed assignee's or subleasee's financial
responsibility, elect one of the following: (a) consent to such proposed
assignment, encumbrance or sublease; (b) refuse such consent, which refusal
shall be on reasonable grounds; or (C) elect to terminate this Lease, or in
the case of a partial sublease, terminate this Lease as to the portion of
the Premises proposed to be sublet. Lease shall be the deliver to Landlord
of a true copy of the fully executed instrument of assignment, transfer or
hypothecation, and the delivery to Landlord of an agreement executed by the
assignee in form and substance satisfactory to Landlord and expressly
enforceable by Landlord, whereby the assignee assumes and agrees to be bound
by all of the terms and provisions of this Lease and to perform all of the
obligations of Tenant hereunder.
As a condition to Landlord;'s consent to any sublease, such sublease shall
provide that it is subject and subordinate to this Lease and to all
mortgages; that Landlord may enforce the provisions of the sublease,
including collection of rent; that in the event of termination of this Lease
for any reason, including without limitation a voluntary surrender by
Tenant, of in the event of any reentry or repossession of the Premises by
Landlord, Landlord may, at its option, either (i) terminate the sublease or
(ii) take over all of the right, title and interest of Tenant, as sublessor,
under such sublease, in which case such sublessee shall attorn to Landlord.
but that nevertheless Landlord shall not (1) be liable for any previous act
or omission of Tenant under such sublease, (2) be subject to any defense or
offset previously accrued in favor of the sublessee against Tenant, or (3)
be bound by any previous modification of any sublease made without
Landlord's written consent, or by any previous prepayment by sublessee of
more one month's rent.
In the eve that Landlord shall consent to an assignment or sublease under
the provisions this Paragraph 26, Tenant shall pay Landlord's reasonable
processing costs and attorneys' fees not to exceed $250.00 incurred in
giving such consent. If Landlord shall consent to any assignment of this
lease, Tenant shall pay to Landlord, as additional rent, fifty percent (50%)
all sums and other considerations payable to and for the benefit of Tenant
by the assignee on account of the assignment, as and when such sums and
other consideration are due and payable by the assignee to or for the
benefit of Tenant (or, if Landlord so requires. and without any release of
Tenant's liability for the same, Tenant shall instruct the assignee to pay
such sums and other consideration directly to Landlord). If for any proposed
sublease Tenant receives rent or other consideration, either initially or
over the term of the sublease, in excess of the rent called for hereunder
or, in case of the sublease of a portion of the Premises, in excess of such
rent fairly allocable to such portion, after appropriate adjustments to
assure that all other payments called for hereunder are taken into account.
Tenant shall pay to Landlord as additional rent hereunder fifty percent
(50%) of the excess of each such payment of rent or other consideration
received by Tenant promptly after its receipt. Landlord's waiver consent to
any assignment or subletting shall not relieve Tenant or any assignee or
sublessee from any obligation under this Leas whether or not accrued.
Occupancy of all or part of the Premises by parent or subsidiary companies
of Tenant shall not be deeme an assignment or subletting. If Tenant requests
Landlord's consent to any assignment of this Lease or any subletting of all
or a portion of the Premises, Landlord shall have the right, to be exercised
by giving written notice to Tenant within thirty (30) days of receipt by
Landlord of the financial responsibility information of required by this
Paragraph 26, to terminate this Lease effective as of the date Tenant
proposes to assign this Lease or sublet all or a portion of the Premises.
Landlord's right to terminate the Lease as to all or a portion of the
Premises on assignment or subletting shall not terminate as a result of
Landlord's consent to he assignment of this Lease or a subletting of all or
a portion of the Premises or Landlord's failure to exercise this right with
respect to any assignment or subletting. Tenant understands and acknowledges
that the option, as provided in this Paragraph 26, to terminate this Lease
rather than approve the assignment thereof or the subletting of all or any
portion of the Premises. is a material for Landlord's agreeing to lease the
Premise to Tenant upon the terms and conditions herein set forth.
27. SUBORDINATION.
Without the necessity of any additional document being executed by Tenant
for the purpose of effecting a subordination. and at the election of
Landlord or any mortgagee with a lien on the Building or any ground lessor
with respect to the Building, this Lease shall be subject and subordinate at
all times to:
(a) all ground leases or underlying leases which may now exist or hereafter
be executed affecting the Building or the land upon which the Building is
situated or both; and
(b) the lien of any mortgage or deed of trust which may now exist or
hereafter be executed in any amount for which the Building, land, ground
leases or underlying leases, or Landlord's interest or estate in any of said
items is specified as security.
Notwithstanding the foregoing, Landlord shall have the right to subordinate
or cause to be subordinated any such ground leases or underlying leases or
any such liens to this Lease. In the event that any ground lease or
underlying lease terminates
for any reason or any mortgage or deed of trust is foreclosed or a
conveyance in lieu of foreclosure is made for any reason, Tenant shall,
notwithstanding any subordination, attorn to and become the Tenant of the
successor-in interest to Landlord, at the option of such successor-in
interest. Tenant covenants and agrees to execute and deliver, upon demand by
Landlord and in the form requested by Landlord, any additional documents
evidencing the priority of subordination or this Lease with respect to any
such ground leases or underlying leases or the lien of any such mortgage or
deed of trust. Should Tenant fail to sign and return any such documents
within ten (10) business days of request. Tenant shall be in default.
Notwithstanding the foregoing so long as Tenant is not in default, its quiet
possession of the Premises will not be disturbed, and any subordination
agreement shall so provide.
28. ESTOPPEL CERTIFICATE.
(a) Within ten (10) days following any written request which Landlord may
make from time to time, Tenant shall execute and deliver to Landlord a
statement, in a form substantially similar to the form of Exhibit "E",
certifying: (I) the date of commencement of this Lease; (ii) the fact that
this Lease is unmodified and in full force and effect (or, if there have
been modifications hereto, that this Lease is in full force and effect, and
stating the date and nature of such modifications), (iii) the date to which
the rental and other sums payable under this Lease have been paid; (iv) that
there are no current defaults under this Lease by either Landlord or Tenant
except as specified in Tenant's statement; and (v) such other matters
requested by Landlord. Landlord and Tenant intend that any statement
delivered pursuant to this Paragraph 28 may be relied upon by any mortgagee,
beneficiary, purchaser or prospective purchaser of the Building or any
interest therein.
(b) Tenant's failure to deliver such statement within such time shall be
conclusive upon Tenant (I) that this Lease is in full force and effect,
without modification except as may be represented by Landlord, (ii) that
there are no uncured defaults in Landlord's performance, and (iii) that not
more than one (1) month's rental has been paid in advance. Tenant's failure
to deliver said statement to Landlord within ten (10) working days of
receipt shall constitute a default under this Lease and Landlord may, at
Landlord's option, terminate the Lease, provided written notice of such
termination is received by Tenant prior to Landlord's receipt of statement.
29. BUILDING PLANNING.
30. RULES AND REGULATIONS.
Tenant shall faithfully observe and comply with the "Rules and Regulations",
a copy of which is attached hereto and marked Exhibit F, and all reasonable
and nondiscriminatory modifications thereof and additions thereto from time
to time put into effect by Landlord. Landlord shall not be responsible to
Tenant for the violation or non-performance by any other tenant or occupant
of the Building of any of said Rules and Regulations. Landlord shall make
all reasonable efforts to cause other tenants to abide by said rules and
regulations.
31. CONFLICT OF LAWS.
This Lease shall be governed by and construed pursuant to the laws of the
State of California.
32. SUCCESSORS AND ASSIGNS.
Except as otherwise provided in this Lease, all of the covenants, conditions
and provisions of this Lease shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns.
33. SURRENDER OF PREMISES.
The voluntary or other surrender of this Lease by Tenant, or a mutual
cancellation thereof, shall not work a merger. and shall. at the option of
Landlord, operate as an assignment to it of any or all subleases or
subtenancies. Upon the expiration or termination of this Lease, Tenant shall
peaceably surrender - Premises and ail alterations and additions thereto,
broom clean the Premises, leave-the Premises in good order, repair and
condition, reasonable wear and tear excepted, and comply with the provisions
of Paragraph 15. The delivery of keys to any employee of Landlord or to
Landlord's agent or any employee thereof shall not be sufficient to
constitute a termination of this Lease or a surrender of the Premises.
34. PROFESSIONAL FEES
(a) If Landlord should bring suit for possession of the Premises, for the
recovery of any sum due under this Lease, or because of the breach of any
provisions of this Lease, or for any other relief against Tenant hereunder,
or in the event of any other litigation
between the parties with respect to this lease, then all costs and expenses,
including without limitation, its actual professional fees such as
appraisers', accountants' and attorneys' fees, incurred by the prevailing
party therein shall be paid by the other party
which obligation on the part of the other party shall be deemed to have
accrued on the date of the commencement of such and shall be enforceable
whether or not the action is prosecuted to judgment.
(b) If Landlord is named as a defendant in any suit brought against
Tenant in connection with or arising out of Tenant's occupancy hereunder,
Tenant shall pay to Landlord its reasonable costs and expenses incurred in
such suit, including without limitation, actual professional fees such as
appraisers', accountants' and attorneys' fees.
35. PERFORMANCE BY TENANT.
All covenants and agreements to be performed by Tenant under any of
the terms of this Lease shall be performed by Tenant at Tenant's sole cost
and expense and without any abatement of rent. If Tenant shall fail to pay
any sum of money owed to any party other than Landlord, for which it is
liable hereunder, or if Tenant shall fail to perform any other act on its
part to be performed hereunder, and such failure shall continue beyond any
applicable cure period, Landlord may, without waiving or releasing Tenant
from obligations of Tenant, but shall not be obligated to, making any such
payment or perform any such other act to be made or performed by Tenant. All
sums so paid by Landlord and all necessary incidental costs together with
interest thereon at the maximum, rate permissible by law, from the date of
such payment by Landlord, shall be payable to Landlord on demand. Tenant
covenants to pay any such sums, and Landlord shall have (in addition to any
other right or remedy of Landlord) all rights and remedies in the event of
the non-payment thereof by Tenant as are set forth in Paragraph 25.
36. MORTGAGEE PROTECTION.
In the event of any default on the part of Landlord, Tenant will give notice
by registered or certified mail to any beneficiary of a deed of trust or
mortgage covering the Premises whose address shall have been furnished to
Tenant, and shall offer such beneficiary or mortgagee a reasonable
opportunity to cure the default, including time to obtain possession of the
Premises by power of sale or a judicial foreclosure, if such should prove
necessary to effect a cu e. Landlord shall provide name and address(s) of
all such beneficiaries within ten (10) days or executing the Lease.
37. DEFINITION OF LANDLORD.
The term 'Landlord', as used in this Lease, so far as covenants or
obligations on the part of Landlord are concerned, shall be limited to mean
and include only the owner or owners. at the time in question. of the fee
title of the Premises or the lessees under any ground lease. if any. In the
event of any transfer, assignment or other conveyance or transfers of any
such title, Landlord herein named (and in case of any subsequent transfers
or conveyances, the then grantor) shall be automatically freed and relieved
from and after the date of such transfer, assignment or conveyance of all
liability as respects the performance of any covenants or obligations on the
part of Landlord contained in this Lease thereafter to be performed. Without
further agreement, the transferee of such title shall be deemed to have
assumed and agreed to observe and perform any and all obligations of
Landlord hereunder, during its ownership of the Premises. Landlord may
transfer its interest in the Premises without the consent of Tenant and such
transfer or subsequent transfer shall not be deemed a violation on
Landlord's part of any of the terms and conditions of this Lease.
38. WAIVER.
The waiver by Landlord of any breach of any term, covenant or
condition herein contained shall not be deemed to be a waiver of any
subsequent breach of the same or any other term, covenant or condition
herein contained. nor shall any custom or practice which may grow up between
the parties in the administration of the terms hereof be deemed a waiver of
or in any way affect the right of Landlord to insist upon the performance by
Tenant in strict accordance with said terms. The subsequent acceptance of
rent hereunder by Landlord shall not be deemed to be a waiver of any
preceding breach by Tenant of any term, covenant or condition of this Lease,
other than the failure of Tenant to pay the particular rent so accepted,
regardless of Landlord's knowledge of such preceding breach at the time of
acceptance of such rent. No acceptance by Landlord of a lesser sum than the
basic rental and additional rent or other sum then due shall be deemed to be
other than on account of the earliest installment of such rent or other
amount due, nor shall any endorsement or statement on any check or any
letter accompanying any check 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 other amount or pursue
any other remedy in this Lease provided.
39. IDENTIFICATION OF TENANT.
If more than one person executes this lease as Tenant. (a) each of
them is jointly and severally liable for the keeping, observing and
performing of all of the terms, covenants, conditions. provisions and
agreements of this Lease to be kept, observed and performed by Tenant, and
(b) the term "Tenant" as used in this Lease shall mean and include each of
them jointly and severally. The act of or notice from. or notice or refund
to, or the signature of any one or more of them, with respect to the tenancy
of this Lease, including. but not limited to, any renewal, extension,
expiration, termination or modification of this Lease, shall be binding upon
each and all of the persons executing this Lease as Tenant with the same
force and effect as if each and all of them had so acted or so given or
received such notice or refund or so signed.
40. PARKING.
Unless Tenant is in default hereunder, Tenant shall be entitled to the
number of vehicle parking spaces designated in paragraph 1(k), provided that
a portion of such vehicle parking spaces shall be for visitor parking for
the Building. The portion of such vehicle parking spaces to be allocated to
visitor parking shall be determined by multiplying Tenant's Percentage times
the aggregate number of visitor parking spaces for the Building, as such
number of visitor parking spaces may be changed by Landlord from time to
time though such changes shall not materially interfere with Tenants or
Tenant's employees' invitees' parking. Such visitor parking spaces shall
not be restricted to Tenant's visitors or invitees, but may be utilized by
any individuals visiting the Building or the Development upon the
sixty-first (61st) month of the Lease term, Tenant's us of its vehicle
parking spaces which have not been designated as visitor parking spaces
shall be subject to a monthly parking fee for such spaces. Landlord may
assign any unreserved and unassigned parking spaces and/or make all or a
portion of such spaces reserved, if it determines in its sole discretion
that is necessary for orderly and efficient parking. Tenant stall not use
more parking spaces than said number. In the event Landlord has not assigned
specific spaces to Tenant. Tenant shall not use any spaces which have been
so specifically assigned by Landlord to other tenants or for such other uses
as visitor parking or which have been designated by governmental entities
with competent jurisdiction as being restricted to certain uses.
(a) Tenant shall not permit or allow any vehicles that belong to or are
controlled by Tenant or Tenant's employees, suppliers, shippers, customers
or invitees to be loaded, unloaded or parked in areas other than those
designated by Landlord for such activities.
(b) Tenant permits or a allows any of the prohibited activities described
in this Paragraph 40. then Landlord shall have the right, without notice, in
addition to such other rights and remedies that it may have, to remove or
tow away the vehicle involved
and charge the cost to Tenant, which cost shall be immediately payable upon
demand by Landlord.
(c) Landlord reserves the right at any time to substitute an equivalent
number of parking spaces in a parking structure or subterranean parking
facility or in a surface parking area within a reasonable distance of the
Premises.
(d) The use by Tenant. its employees and invitees, of the parking facilities
of the Building shall be on the terms and conditions set forth in Exhibit
"G" attached hereto and by this reference incorporated herein, and shall be
subject to such other agreement between Landlord and Tenant as may
hereinafter be established.
41. FORCE MAJEURE.
Landlord shall have no liability whatsoever to Tenant on account of
(a) the inability of Landlord to fulfill, or delay in fulfilling. any of
Landlord's obligations under this Lease by reason of strike, other labor
trouble, governmental preemption of priorities or other controls in
connection with a national or other public emergency, or shortages of fuel,
supplies or labor resulting therefrom or any other cause. whether similar or
dissimilar to the above, beyond Landlord's reasonable control; or (b) any
failure or defect in the supply quantity or character of electricity or
water furnished to the Premises. by reason of any requirement, act or
omission of the public utility or others furnishing the Building with
electricity or water, or for any other reason, whether similar or dissimilar
to the above. beyond Landlord's reasonable control. If this Lease specifies
a time period for performance of an obligation of Landlord that time period
shall be extended by the period of any delay in Landlord's performance
caused by any of the events of force majeure described above. Tenant shall
have no liability whatsoever to Landlord on account of (a) the inability of
Tenant to RM, or delay in fulfilling, any of Tenant's obligations under this
Lease other than the payment of rent or other monetary obligations by reason
of strike, other labor trouble, governmental pre-emption of priorities or
other controls in connection with a national or other public emergency, or
shortages of fuel, supplies or labor resulting therefrom, or any other
cause, whether similar or dissimilar to the above, beyond Tenant's
reasonable control.
42. TERMS AND HEADINGS.
The words "Landlord" and "Tenant" as used herein shall include the
plural as well as the singular. Words used in any gender include other
genders. The paragraph headings of this Lease are not a part of this Lease
and shall have no effect upon the construction or interpretation of any part
hereof.
43. EXAMINATION OF LEASE.
Submission of this instrument for examination or signature by Tenant
does not constitute a reservation of or option for lease. and it is not
effective as a lease or otherwise until execution by and delivery to both
Landlord and Tenant.
44. TIME.
Time is of the essence with respect to the performance of every
provision of this Lease in which time of performance is a factor.
45. PRIOR AGREEMENT OR AMENDMENTS.
This Lease contains all of the agreements of the parties hereto with
respect to any matter covered or mentioned in the Lease, and no prior
agreement or understanding pertaining to any such matter shall be effective
for any purpose. No provisions of this Lease may be amended or added to
except by an agreement in writing signed by the parties hereto or their
respective successors- in - interest.
46. SEPARABILITY.
Any provision of this Lease which shall prove to be invalid, void or
illegal in no way affects, impairs or invalidates any other provision
hereof, and such other provisions shall remain in full force and effect.
47. RECORDING.
Neither Landlord nor Tenant shall record this Lease nor a short form
memorandum thereof without the consent of the other.
48. LIMITATION ON LIABILITY.
In consideration of the benefits accruing hereunder, Tenant and all
successors and assigns covenant and agree that. in the event of any actual
or alleged failure, breach or default hereunder by Landlord:
(a) The sole and exclusive remedy shall be against the Landlord's
interest in the Building:
(b) No partner of Landlord shall be sued or named as a party in any
suit or action (except as may be necessary to secure jurisdiction of the
partnership);
(c) No service of process shall be made against any partner of
Landlord (except as may be necessary to secure jurisdiction of the
partnership);
(d) No partner of Landlord shall be required to answer or otherwise
plead to any service of process;
(e) No judgment will be taken against any partner of Landlord:
(f) Any judgment taken against any partner of Landlord may be vacated
and set aside at any time nunc pro tunc:
(g) No writ of execution will ever be levied. against the assets of
any partner of Landlord;
(h) The obligations of Landlord under this Lease do not constitute
personal obligations of the individual partners. directors. officers or
shareholders of Landlord, and Tenant shall not seek recourse against the
individual partners. directors, officers or shareholders of Landlord or any
of their personal assets for satisfaction of any liability in respect to
this Lease;
(I) These covenants and agreements are enforceable both by Landlord
and also by any partner of Landlord.
49. TRAFFIC IMPACT.
Tenant acknowledges that traffic control and flow is a major concern
of the City of Irvine, of Landlord and of each tenant in the Building and
surrounding buildings. Therefore, Tenant agrees that it will cooperate with
landlord in reasonable efforts which may be undertaken by Landlord
independently or in cooperation with the City of Irvine or other property
owners to alleviate the traffic impact of the Building on the local area
streets and highways.
50. AIR TRAFFIC.
Tenant acknowledges that the Building and the area in which the
Building is located is subject to sight, sound and overflight by general
aviation aircraft.
51. MODIFICATION FOR LENDER.
If, in connection with obtaining construction. interim or permanent
financing for the Building the lender shall request reasonable modifications
in this Lease as a condition to such financing, Tenant will not unreasonably
withhold, delay or defer its consent thereto, provided that such
modifications do not increase the obligations of Tenant hereunder or
materially adversely affect the leasehold interest hereby created or
Tenant's rights hereunder.
52. FINANCIAL STATEMENTS.
At any time during the term of this Lease, not more than once annually
shall upon ten (10) days prior written notice from Landlord, provide
Landlord with a current financial statement and financial statements of the
two (2) years prior to the current financial statement yetar. Suc statement
shall be prepared in accordance with generally accepted accounting
principles and, if such is the normal practice of Tenant, shall be audited
by an independent certified public accountant.
53. QUIET ENJOYMENT.
Landlord covenants and agrees with Tenant that upon Tenant paying the
rent required under this lease and paying all other
charges and performing all of the covenants and provisions aforesaid on
Tenant's part to be observed and performed under this Lease. Tenant shall
and may peaceably and quietly have, hold and enjoy the Premises in
accordance with this Lease.
54. TENANT AS CORPORATION.
It Tenant executes this Lease as a corporation, then Tenant and the
persons executing this Lease on behalf of Tenant represent and warrant that
the individuals executing this Lease on Tenant's behalf are duly authorized
to execute and deliver this Lease on its behalf in accordance with a duly
adopted resolution of the board of directors of Tenant, a copy of which is
to be delivered to landlord on execution hereof, and in accordance with the
by-laws of Tenant and that this Lease is binding upon Tenant in accordance
with its terms.
IN WITNESS WHEREOF, the parties have executed this Lease as of the
date first above written.
LANDLORD: ADDRESS:
a California limited partnership
KZ3
By: XXXX VON KARMAN ASSOCIATES, 00000 Xxx Xxxxxx Xxxxxx
a California general Suite 120
partnership, as Managing Xxxxxx, Xxxxxxxxxx 00000
General Partner
By: THE XXXX COMPANY,
a California. corporation, as
its Managing Gener Partner
By:/s/Xxxx Xxxxxx
Its: Vice President
TENANT: ADDRESS:
CRUTTENDEN & CO., INC.
A California, Corporation 00000 Xxx Xxxxxx Xxxxxx
Xxxxx 000
By:/s/Xxxxxxx X. Guttfredson/CFO Xxxxxx, Xxxxxxxxxx 00000
By:
RIDER TO OFFICE BUILDING LEASE
DATED MARCH 8, 1991
BY AND BETWEEN KZ3, A CALIFORNIA LIMITED PARTNERSHIP
AS "LANDLORD" AND
CRUTTENDEN & CO., INC., A CALIFORNIA CORPORATION,
AS"TENANT"
55. ANNUAL BASIC RENTAL INCREASES: Notwithstanding Paragraph 5 of the
Lease, the rent will be as follows in years two (2) through ten (10):
Year 2 - $1.55 per rentable square foot per month,
$18,184.60 per month,
$218,215.20 per annum.
Year 3 - $1.65 per rentable square foot per month,
$19,357.80 per month,
$232,293.60 per annum.
Year 4 - $1.75 per rentable square foot per month,
$20,531.00 per month,
$246,372.00 per annum.
Year 5 - $1.85 per rentable square foot per month,
$21,704.20 per month,
$260,450.40 per annum.
Year 6 - $2.15 per rentable square foot per month,
$25,223.80 per month,
$302,685.60 per annum.
Year 7 - $2.25 per rentable square foot per month,
$26,397.00 per month,
$316,764.00 per annum.
Year 8 - $2.35 per rentable square foot per month,
$27,570.20 per month,
$330,842.40 per annum.
Year 9 - $2.45 per rentable square foot per month,
$28,743.40 per month,
$344,920.80 per annum.
Year 10- $2.55 per rentable square foot per month,
$29,916.60 per month,
$358,999.20 per annum.
56. RENTAL ABATEMENT DURING TERM: Landlord shall provide Tenant with
months one (1) through ten (10) free of rent. Additionally, Landlord. shall
provide Tenant with months eleven (11) through fourteen (14) at one-half
(1/2) rent.
57. PARKING: Parking for the building shall be provided as per the following:
A) Visitor Parking: A specific sufficient section shall be set aside
within the surface and/or parking structure for visitor parking.
This parking shall be at a charge to the invitees with the rate
being established by Landlord from time to-time, presently the
initial fifteen (15) minutes are free of charge, subject to change
over the term of the Lease. Tenant may elect to validate such
parking for their guests. Validation costs shall be at or below
posted rates and available in thirty (30) minute increments.
B) Unreserved Employee Parking: Landlord shall lease to Tenant
forty-three (43) unreserved employee parking spaces. Throughout the
Lease term, Tenant shall pay the prevailing parking rental rate
(currently $50.00 per stall per month) for all such spaces allocated
to Tenant. All such unreserved employee parking spaces shall be
available to all tenants on a non-exclusive, in-common
basis within the non-visitor portions of the parldng facilities.
Tenant's parking rent shall be abated for all applicable unreserved
parking stalls for the initial sixty (60) months of the Lease term.
Commencing on the sixty-first (61st) month, Tenant shall pay $50.00
per stall on a monthly basis as additional rent
for all such unreserved employee parking spaces for the balance of
the initial Lease term. Landlord shall increase Tenant's unreserved
parking allocation commencing in the thirteenth (13th) month to
forty-eight (48) stalls, and commencing in the twenty-fifth (25th)
month, Tenant's unreserved parking allocation shall be increased to
fifty-three (53) stalls.
3. Reserved Employee Parking: Landlord shall lease to Tenant three (3)
reserved parking spaces. Tenant shall pay the prevailing parking
rental rate (currently $100.00 per stall per month) for all such
spaces allocated to Tenant. Tenant's parking rent shall be abated
for three (3) reserved parldng spaces for the initial
sixty (60) months of the Lease term. Commencing on the sixty-first
(61st)month, Tenant shall, pay $100.00 per stall on a monthly basis
as additional rent for all such reserved parldng spaces for the
balance of the initial Lease term.
58. OPTION TO EXPAND: (a) Subject to the terms of this Paragraph 58 and
Paragraph 60, entitled "Options," Landlord hereby grants to Tenant the
option ("Expansion Option ") to amend the Lease to expand the Premises to
include not less than 2,000
nor more than 4,000 rentable square feet located on the fourth (4th) or
eighth (8th) floors (the "Expansion Space"). To the extent the location of
the Expansion Space is not specifically designated above, Tenant's
"Expansion Notice" (as defined below) shall specify the area and size of
space (within the foregoing parameters) into which Tenant would like to
expand the Premises. After considering Tenant's desires, the exact location
and size of the Expansion Space shall be selected by Landlord, in its
discretion, within the foregoing parameters and identified to Tenant in
writing delivered to Tenant by Landlord ("Landlord's Notice") within thirty
(30) days following Landlord's receipt of Tenant's Expansion Notice. Only if
and to the extent the location of the Expansion Space is not specifically
designed above, Tenant shall have the right, within five (5) days following
receipt of Landlord's Notice, to deliver a writing to Landlord rescinding
Tenant's Expansion Notice with respect to the Expansion Space not
specifically designated above and designated by Landlord in Landlord's
Notice. Tenant's failure to timely deliver such a rescission to Landlord
shall be deemed to be Tenant's satisfaction with the location and size of
the Expansion Space as designated by Landlord in Landlord's Notice.
The Expansion Option is subject to the condition that Landlord receive from
Tenant. written notice ("Expansion Notice") of Tenant's election to exercise
the Expansion Option no earlier than the last day of the thirtieth (30th)
month of the Term and no later than the last day of the thirty-sixth (36th)
month of the Term.
If Tenant properly exercises the Expansion Option, the Expansion Space will
be added to the Premises currently leased by Tenant under the Lease
effective as of the date the Expansion Space is delivered to Tenant in the
condition described below, which date shall be between the thirty-sixth
(36th) and sixtieth (60th) months of the Term. Landlord's Notice shall
contain Landlord's good-faith estimate of the date the Expansion Space will
be delivered to Tenant in the condition described below. Landlord's Notice
shall in any event specify the approximate number of rentable square feet of
the Expansion Space.
All terms and conditions for said option space shall remain in place, except
that the rent for the space shall be at the then fair market value. The fair
market value for the Premises shall be an amount equal to the fair market
rental value of the Premises, as determined herein, but shall in no event be
less than the Annual Basic Rental payable for the last month of the then
current year of the Lease. Landlord shall determine the fair market rental
value of the Premises by using its best good faith judgment. Such fair
market rental value shall be determined by Landlord in accordance with the
projected (to the commencement of such Option to Extend) prevailing market
rentals for similar space in Class "A" commercial office buildings in the
Orange County
Airport marketplace. In determining such fair market rental value, Landlord
shall specifically exclude any consideration of Tenant's occupancy or use of
the Premises in place as of the end of the term or the previous Option to
Extend, as applicable. Landlord shall use its best efforts to deliver to
Tenant written notice of such fair market rental value and the new Annual
Basic Rental applicable to such Option to Extend within thirty (30) days
after Landlord's receipt of an Option Notice. Tenant shall have fifteen (15)
days ("Tenant's Review Period") after receipt of Landlord's notice of such
new Annual Basic Rental to reasonably object thereto in writing. In the
event Tenant objects to such new Annual Basic Rental submitted by Landlord,
Landlord and Tenant shall attempt in good faith to agree upon such new
Annual Basic Rental within fifteen (15) days following Tenant's Review
Period (the "Outside Agreement Date"), then each party's determination shall
be submitted to arbitration in accordance with Paragraph (c) hereof. Failure
of Tenant to so object in writing within such period shall conclusively be
deemed its approval of the new Annual Basic Rental determined by Landlord as
set forth above.
Landlord and Tenant shall each appoint one arbitrator who shall by
profession be a real estate appraiser who shall have been active over the
five (5) year period ending on the date of such appointment in the appraisal
of commercial properties in the Orange County Airport Marketplace. Each such
arbitrator shall be appointed within (30) c4ys after the Outside Agreement
Date.
The two arbitrators so appointed shall within fifteen (15) days of the date
of the appointment of the last appointed arbitrator agree upon and appoint a
third arbitrator who shall be qualified under the same criteria set forth
hereinabove for qualification of the initial two arbitrators.
Landlord and Tenant shall each submit a figure for the new Annual Basic
Rental for the Premises to the appointed arbitrators. Ile determination of
the arbitrators shall be limited solely to the issue of whether Landlord's
or Tenant's submitted new Annual Basic Rental for the Premises is the
closest to the actual new Annual Basic Rental for the Premises as determined
by the arbitrators, taking into account the requirements of Paragraph (b)
and this Paragraph (c) regarding same.
The three arbitrators shall within thirty (30) days of the appointment of
the third arbitrator reach a decision as to whether the parties shall use
Landlord's or Tenant's submitted new Annual Basic Rental, and shall notify
Landlord and Tenant thereof. Such decision shall be based upon the projected
prevailing fair market rental for similar space in Class "A" commercial
office buildings in the Orange County Airport Marketplace.
The decision of the majority of the three arbitrators shall be binding
upon Landlord and Tenant.
If either Landlord or Tenant fails to appoint an arbitrator within the
time period in Paragraph (c)(I) hereinabove, the arbitrator appointed by
one of them shall reach a decision, notify Landlord and Tenant thereof,
and such arbitrator's decision shall be binding upon Landlord and Tenant.
If the two arbitrators fail to agree upon and appoint a third arbitrator,
both arbitrators shall be dismissed and the matter to be decided shall be
forthwith submitted to arbitration under the provisions of the American
Arbitration Association.
In the event that the new Annual Basic Rental is not established prior to
end of the initial term of the Lease or the Option Term then in effect,
the Annual Basic Rental immediately payable at the commencement of such
Option Term shall be the Annual Basic Rental payable in the immediately
preceding month. Notwithstanding the above, once the fair market rental is
determined in accordance with this section, the Tenant shall be required
to pay to Landlord, with the next payment of rental due hereunder, the
aggregate amount by which such fair market rental for such month and
a4,.prior months during the Option Term exceeds the aggregate Annual Basic
Rental paid to Landlord for such months pursuant to this subsection.
59. OPTION TO EXTEND: (a) Subject to the provisions of section 60 below,
Landlord hereby grants to Tenant the option to extend ("Option to Extend")
the term of this Lease for one (1) period of five (5) years ("Option
Term*). The Option to Extend must be exercised, if at all, by written
notice ("Option Notice" received by Landlord not later than one hundred
eighty (180) days and not earlier than two hundred seventy (270) days
prior to the expiration of the initial term of this Lease. Provided that
Tenant has properly exercised an Option to Extend, the term of this Lease
shall be extended for five (5) years and all of the terms, covenants and
conditions of the Lease shall remain unmodified and in full force and
effect, except that the Annual Basic Rental shall be modified as set forth
in subsection (b) below.
(b) The Annual Basic Rental payable for the Option Term shall be an amount
equal to the fair market rental value of the Premises, as determined
herein, but shall in no event be less than the Annual Basic Rental payable
for the last month of the basic term of the Lease. Landlord shall
determine the fair market rental value of the Premises by using its best
good faith judgment. Such fair market rental value shall be determined by
Landlord in accordance with the projected (to the commencement of
such Option to Expand) prevailing market rentals for similar space in Class
"A" commercial office buildings in the Orange County Airport marketplace.
in determining such fair market rental value, Landlord shall specifically
exclude any consideration of Tenant's occupancy or use of the Premises in
place as of the end of the term. Landlord shall use its best efforts to
deliver to Tenant written notice of such fair market rental value and the
new Annual Basic Rental applicable to such Option to Expand within thirty
(30) days after Landlord's receipt of an Option-Notice. Tenant shall have
fifteen (15) days ("Tenant's Review Period") after receipt of Landlord's
notice of such new Annual Basic Rental to reasonably object thereto in
writing. In the event Tenant objects to such new Annual Basic Rental
submitted by Landlord, Landlord and Tenant shall attempt in good faith to
agree upon such new Annual Basic Rental within fifteen (15) days following
Tenant's Review Period (the *Outside Agreement Date"), then each party's
determination shall be submitted to arbitration in accordance with
Paragraph (C) hereof. Failure of Tenant to so object in writing within such
period shall conclusively be deemed its approval of the new Annual Basic
Rental determined by Landlord as set forth above.
(c)(i) Landlord and Tenant shall each appoint one arbitrator who shall by
profession be a real estate appraiser who shall have been active over the
five (5) year period ending on the date of such appointment in the
appraisal of commercial properties in the Orange County Airport
Marketplace. Each such arbitrator shall be appointed within thirty (30)
days after the Outside Agreement Date.
(ii) The two arbitrators so appointed shall within fifteen (15) days of the
date of the appointment of the Last appointed arbitrator agree upon and
appoint a third arbitrator who shall be qualified under the same criteria
set forth hereinabove for qualification of the initial two arbitrators.
(iii) Landlord and Tenant shall each submit a figure for the new Annual
Basic Rental for the Premises to the appointed arbitration. The
determination of the arbitrators shall be limited solely to the issue of
whether Landlord's or Tenant's submitted new Annual Basic Rental for the
Premises is the closest to the actual new Annual Basic Rental for the
Premises as determined by the arbitrators, taking into account the
requirements of Paragraph (b) and this Paragraph (C) regarding same.
(iv) The three arbitrators shall within thirty (30) days of the appointment
of the third arbitrator reach a decision as to whether the parties shall
use Landlord's or Tenant's submitted new Annual Basic Rental, and shall
notify Landlord and Tenant thereof. Such decision shall be based upon the
projected prevailing fair market rental for similar space in Class "A"
commercial office buildings in the Orange County Airport Marketplace.
(v) The decision of the majority of the three arbitrators shall be binding
upon Landlord and Tenant.
(vi) If either Landlord or Tenant fails to appoint an arbitrator within the
time period in Paragraph (c)(I) hereinabove, the arbitrator appointed by
one of them shall reach a decision, notify Landlord and Tenant thereof, and
such arbitrator's decision shall be binding upon Landlord and Tenant.
(vii) If the two arbitrators fail to agree upon and appoint a third
arbitrator, both arbitrators shall be dismissed and the matter to be
decided shall be forthwith submitted to arbitration under the provisions of
the American Arbitration Association.
(viii) In the event that the new Annual Basic Rental is not established
prior to end of the initial term of the Lease or the Option Term then in
effect, the Annual Basic Rental immediately payable at the commencement of
such Option Tenn shall be the Annual Basic Rental payable in the
immediately preceding month. Notwithstanding the above, once the fair
market rental is determined in accordance with this section, the Tenant
shall be required to pay to Landlord, with the next payment of rental due
hereunder, the aggregate amount by which such fair market rental for such
month and all prior months during the Option Term exceeds the aggregate
Annual Basic Rental paid to Landlord for such months pursuant to this
subsection.
60. OPTIONS:
(a) Definition. As used in this section the word "Option" has the following
meaning: (i) the Option to Expand pursuant to Section 58 herein, and (ii)
the Option to Extend, the term, of this Lease pursuant to Section 59 herein.
(b) Options Personal. Each Option granted to Tenant in this Lease is
personal to the original Tenant and may be exercised only by the original
Tenant while occupying the Premises who does so without the intent of
thereafter assigning this Lease or subletting the Premises or any portion
thereof, and may not be exercised or be assigned, voluntarily or
involuntarily, by and person or entity other than Tenant; provided,
however, any purchase of substantially all of the business and assets of
Tenant, who is otherwise an acceptable assignee of Tenant under this Lease,
shall be entitled to exercise any such options in accordance with this
Lease. The Options, if any, herein granted to Tenant are not assignable
separate and apart from this Lease, nor may any Option be separated from
this Lease in any manner, either by reservation or otherwise.
(C) Effect of Default on Options.
(I) Tenant shall have no right to exercise an Option,
notwithstanding any provision of the grant of Option to the
contrary: (A) during the time commencing from the date Landlord
gives to Tenant a notice of default and continuing until the
non-compliance alleged in said notice of default is cured; (B)
during the period of time commencing on the day after a monetary
obligation to Landlord is due from Tenant and unpaid (without any
necessity for notice thereof to Tenant) and continuing until the
obligation is paid; (C) in the event Landlord has given to Tenant
two or more notices of material default, whether or not the defaults
are cured, during the twelve (12) month period of time immediately
prior to the time Tenant attempts to exercise the subject Option; or
(D) if Tenant has committed any non-curable breach or is otherwise
in default under any of the terms, covenants or conditions of this
Lease.
(ii) The period of time within which an Option may be exercised
shall not be extended or enlarged by reason of Tenant's inability to
exercise an Option because of the provisions of the immediately
preceding paragraph.
(iii) All rights of Tenant under the provisions of an Option shall
terminate and be of no further force or effect, notwithstanding
Tenant's due and timely exercise of the Option if, after such
exercise prior to the commencement of the Option Term:
(A) Tenant fails to pay to Landlord a monetary obligation of
Tenant for a period of thirty (30) days after such obligation
becomes due (without any necessity of Landlord to give notice
thereof to Tenant);
(B) Tenant fails to commence to cure a non-monetary default within
thirty (30) days after the date that Landlord gives notice to
Tenant of such default and/or Tenant fails thereafter to
diligently prosecute said cure to completion;
(C) Landlord gives to Tenant two (2) or more notices of default,
whether or not the defaults are cured;
(D) If Tenant has committed any non-curable breach or is otherwise
I material default under any of the terms, covenants and
conditions of this Lease.
The decision of the majority of the three arbitrators shall be binding
upon Landlord and Tenant.
If either Landlord or Tenant fails to appoint an arbitrator within the
time period in Paragraph (c)(I) hereinabove, the arbitrator appointed by
one of them shall reach a decision, notify Landlord and Tenant thereof,
and such arbitrator's decision shall be binding upon Landlord and Tenant.
If the two arbitrators fail to agree upon and appoint a third arbitrator,
both arbitrators shall be dismissed and the matter to be decided shall be
forthwith submitted to arbitration under the provisions of the American
Arbitration Association.
In the event that the new Annual Basic Rental is not established prior to
end of the initial term of the Lease or the Option Term then in effect,
the Annual Basic Rental immediately payable at the commencement of such
Option Term shall be the Annual Basic Rental payable in the immediately
preceding month. Notwithstanding the above, once the fair market rental is
determined in accordance with this section, the Tenant shall be required
to pay to Landlord, with the next payment of rental due hereunder, the
aggregate amount by which such fair market rental for such month and
a4,.prior months during the Option Term exceeds the aggregate Annual Basic
Rental paid to Landlord for such months pursuant to this subsection.
59. OPTION TO EXTEND: (a) Subject to the provisions of section 60 below,
Landlord hereby grants to Tenant the option to extend ("Option to Extend")
the term of this Lease for one (1) period of five (5) years ("Option
Term*). The Option to Extend must be exercised, if at all, by written
notice ("Option Notice" received by Landlord not later than one hundred
eighty (180) days and not earlier than two hundred seventy (270) days
prior to the expiration of the initial term of this Lease. Provided that
Tenant has properly exercised an Option to Extend, the term of this Lease
shall be extended for five (5) years and all of the terms, covenants and
conditions of the Lease shall remain unmodified and in full force and
effect, except that the Annual Basic Rental shall be modified as set forth
in subsection (b) below.
(b) The Annual Basic Rental payable for the Option Term shall be an amount
equal to the fair market rental value of the Premises, as determined
herein, but shall in no event be less than the Annual Basic Rental payable
for the last month of the basic term of the Lease. Landlord shall
determine the fair market rental value of the Premises by using its best
good faith judgment. Such fair market rental value shall be determined by
Landlord in accordance with the projected (to the commencement of
such Option to Expand) prevailing market rentals for similar space in Class
"A" commercial office buildings in the Orange County Airport marketplace.
in determining such fair market rental value, Landlord shall specifically
exclude any consideration of Tenant's occupancy or use of the Premises in
place as of the end of the term. Landlord shall use its best efforts to
deliver to Tenant written notice of such fair market rental value and the
new Annual Basic Rental applicable to such Option to Expand within thirty
(30) days after Landlord's receipt of an Option-Notice. Tenant shall have
fifteen (15) days ("Tenant's Review Period") after receipt of Landlord's
notice of such new Annual Basic Rental to reasonably object thereto in
writing. In the event Tenant objects to such new Annual Basic Rental
submitted by Landlord, Landlord and Tenant shall attempt in good faith to
agree upon such new Annual Basic Rental within fifteen (15) days following
Tenant's Review Period (the *Outside Agreement Date"), then each party's
determination shall be submitted to arbitration in accordance with
Paragraph (C) hereof. Failure of Tenant to so object in writing within such
period shall conclusively be deemed its approval of the new Annual Basic
Rental determined by Landlord as set forth above.
(c)(i) Landlord and Tenant shall each appoint one arbitrator who shall by
profession be a real estate appraiser who shall have been active over the
five (5) year period ending on the date of such appointment in the
appraisal of commercial properties in the Orange County Airport
Marketplace. Each such arbitrator shall be appointed within thirty (30)
days after the Outside Agreement Date.
(ii) The two arbitrators so appointed shall within fifteen (15) days of the
date of the appointment of the Last appointed arbitrator agree upon and
appoint a third arbitrator who shall be qualified under the same criteria
set forth hereinabove for qualification of the initial two arbitrators.
(iii) Landlord and Tenant shall each submit a figure for the new Annual
Basic Rental for the Premises to the appointed arbitration. The
determination of the arbitrators shall be limited solely to the issue of
whether Landlord's or Tenant's submitted new Annual Basic Rental for the
Premises is the closest to the actual new Annual Basic Rental for the
Premises as determined by the arbitrators, taking into account the
requirements of Paragraph (b) and this Paragraph (C) regarding same.
(iv) The three arbitrators shall within thirty (30) days of the appointment
of the third arbitrator reach a decision as to whether the parties shall
use Landlord's or Tenant's submitted new Annual Basic Rental, and shall
notify Landlord and Tenant thereof. Such decision shall be based upon the
projected prevailing fair market rental for similar space in Class "A"
commercial office buildings in the Orange County Airport Marketplace.
(v) The decision of the majority of the three arbitrators shall be binding
upon Landlord and Tenant.
(vi) If either Landlord or Tenant fails to appoint an arbitrator within the
time period in Paragraph (c)(I) hereinabove, the arbitrator appointed by
one of them shall reach a decision, notify Landlord and Tenant thereof, and
such arbitrator's decision shall be binding upon Landlord and Tenant.
(vii) If the two arbitrators fail to agree upon and appoint a third
arbitrator, both arbitrators shall be dismissed and the matter to be
decided shall be forthwith submitted to arbitration under the provisions of
the American Arbitration Association.
(viii) In the event that the new Annual Basic Rental is not established
prior to end of the initial term of the Lease or the Option Term then in
effect, the Annual Basic Rental immediately payable at the commencement of
such Option Tenn shall be the Annual Basic Rental payable in the
immediately preceding month. Notwithstanding the above, once the fair
market rental is determined in accordance with this section, the Tenant
shall be required to pay to Landlord, with the next payment of rental due
hereunder, the aggregate amount by which such fair market rental for such
month and all prior months during the Option Term exceeds the aggregate
Annual Basic Rental paid to Landlord for such months pursuant to this
subsection.
60. OPTIONS:
(a) Definition. As used in this section the word "Option" has the following
meaning: (i) the Option to Expand pursuant to Section 58 herein, and (ii)
the Option to Extend, the term, of this Lease pursuant to Section 59 herein.
(b) Options Personal. Each Option granted to Tenant in this Lease is
personal to the original Tenant and may be exercised only by the original
Tenant while occupying the Premises who does so without the intent of
thereafter assigning this Lease or subletting the Premises or any portion
thereof, and may not be exercised or be assigned, voluntarily or
involuntarily, by and person or entity other than Tenant; provided,
however, any purchase of substantially all of the business and assets of
Tenant, who is otherwise an acceptable assignee of Tenant under this Lease,
shall be entitled to exercise any such options in accordance with this
Lease. The Options, if any, herein granted to Tenant are not assignable
separate and apart from this Lease, nor may any Option be separated from
this Lease in any manner, either by reservation or otherwise.
(C) Effect of Default on Options.
(I) Tenant shall have no right to exercise an Option,
notwithstanding any provision of the grant of Option to the
contrary: (A) during the time commencing from the date Landlord
gives to Tenant a notice of default and continuing until the
non-compliance alleged in said notice of default is cured; (B)
during the period of time commencing on the day after a monetary
obligation to Landlord is due from Tenant and unpaid (without any
necessity for notice thereof to Tenant) and continuing until the
obligation is paid; (C) in the event Landlord has given to Tenant
two or more notices of material default, whether or not the defaults
are cured, during the twelve (12) month period of time immediately
prior to the time Tenant attempts to exercise the subject Option; or
(D) if Tenant has committed any non-curable breach or is otherwise
in default under any of the terms, covenants or conditions of this
Lease.
(ii) The period of time within which an Option may be exercised
shall not be extended or enlarged by reason of Tenant's inability to
exercise an Option because of the provisions of the immediately
preceding paragraph.
(iii) All rights of Tenant under the provisions of an Option shall
terminate and be of no further force or effect, notwithstanding
Tenant's due and timely exercise of the Option if, after such
exercise prior to the commencement of the Option Term:
(A) Tenant fails to pay to Landlord a monetary obligation of
Tenant for a period of thirty (30) days after such obligation
becomes due (without any necessity of Landlord to give notice
thereof to Tenant);
(B) Tenant fails to commence to cure a non-monetary default within
thirty (30) days after the date that Landlord gives notice to
Tenant of such default and/or Tenant fails thereafter to
diligently prosecute said cure to completion;
(C)Landlord gives to Tenant two (2) or more notices of default,
whether or not the defaults are cured;
(D) If Tenant has committed any non-curable breach or is otherwise
I material default under any of the terms, covenants and
conditions of this Lease.
61. ATHLETIC CLUB: Upon execution of a Lease document, the KZ3 partnership
shall provide to Tenant six (6) health memberships free of the initial
membership fee in the Sports Club/Irvine. Tenant shall be responsible for
the monthly dues and charges thereafter.
62. SECONDARY BUILDING SIGN: Upon approval by the City of Irvine, Landlord
will give Tenant approval for an eyebrow Building sign. All costs of
installation, repair and removal of such sign will be the obligation of
Tenant. The location of such sign will be mutually agreed upon by both
parties prior to Lease execution (see Exhibit 'H'). The size, style and type
of sign permitted will be subject to the Declaration of Covenants,
Conditions and Restrictions for the Development and all applicable laws,
regulations and ordinances of the City of Irvine and must also be consistent
with the sign criteria of Xxxx Center Irvine, if any. All sign rights
granted to Tenant win be personal to Tenant and may not be assigned,
transferred or otherwise conveyed to any assignee, subtenant or other party
without Landlord's express written consent, which Landlord may withhold in
its discretion.
63. TENANT REFURBISHMENT ALLOWANCE: Provided Tenant is not in default of
any term, condition or covenant of the Lease, at the beginning of the
sixty-first (61st) month of the Lease term, Landlord shall professionally
clean the carpets and repaint the Tenant's premises with building standard
paint.
64. SIZE OF PREMISES ADJUSTMENT: Landlord and Tenant hereby agree to adjust
the size of the Premises as called for in the Lease in accordance with
an exact
determination as a result of the development of a finalized floor
plan. Such
amendment of the Lease shall amend correspondingly Section 1 (o)
(Annual Basic
Rent), Section l(p) (Operating Expense Allowance), Section l(q) (Tenant's
Percentage), Section l(i) (Rentable Square Feet), Section l(r)
(Security Deposit) Exhibit B, Section 7(a) (Payment of Cost of the
Tenant Improvements). Landlord
shall warrant that the load factor used to convert usable square
footage to rentable
square footage is consistent with American National Standard Institute
Publication
ANSI 265.1-1980 (the 'B.O.M.A.' standard).
65. CONTINUOUS OPERATION AND TENANT'S CONDUCT: Tenant covenants and
agrees to occupy the Premises upon commencement of the Term and
thereafter to continuously operate and conduct within the Premises the
business it is permitted operate and conduct under the provisions of
this Lease during normal business hours, Mondays through Fridays 7:00
a.m. to 5:00 p.m. (excluding legal holidays); provided however, Tenant
shall not be obligated to continuously operate during -and to the
extent (i) any portion of the Premises may be untenantable by reason
of fire or other
casualty or government intervention; (ii) Tenant is making reasonable
repairs to the Premises; or (iii) Tenant is reasonably constructing or
altering any portion of the Premises pursuant to an approved sublease.
Tenant agrees to conduct its business at all times in a first-class manner
consistent with reputable business standards and practices and shall keep
the Premises in a neat, safe, clean and orderly condition consistent with
the terms of this Lease recognizing that the Premises is ground floor space
visible to all other tenants and visitors of the Building. Accordingly, in
addition to all other rights and remedies set forth in this Lease, Landlord
shall have the right to periodically inspect the Premises and to require
Tenant to make such repairs, replacements or perform such other maintenance
as may reasonably be necessary to keep the Premises in a first-class state
of repair and condition consistent with the condition of the Building and
all other ground floor space including, but not limited to, periodic
refurbishment and replacement of floor and wall coverings. Nothing in the
foregoing provisions of this subparagraph shall be deemed in any way to
prohibit or restrict Tenant from operating the Premises during such hours in
addition to those set forth hereinabove as Tenant may elect.
If at any time after the Commencement Date Tenant fails to open the Premises
for business and operate therefrom either for any period of five (5)
consecutive business days during which Tenant is not exempted from operating
as provided above, Landlord may, in its sole discretion, terminate this
Lease by giving Tenant express written notice thereof within thirty (30)
days after the last day during any such applicable period on which Tenant
was not open for business and operating from the Premises, in which event
this Lease shall terminate automatically as of the date on which such notice
is given. Any such termination shall not alter or impair any rights or
remedies held by or available to either party hereto under the provisions of
this I=m on account of any default occurring before such termination.
66. It is the expectation of Tenant, and Landlord hereby agrees, that
Landlord shall act reasonably and in good faith when taking action that
might frustrate the spirit in which the Base Year was negotiated. Such
that Landlord shall not unreasonably reduce expenditures during the base
year period of the Lease (the calendar year 1992), and consequently,
disproportionately or indiscreetly increase discretionary, variable or any
other expenses in years thereafter.
If Tenant shall dispute the amount set forth in any Actual Statement
described above in Paragraph 6, Tenant shall. have the right not later
than thirty (30) days following receipt of such Actual Statement to cause
Landlord's books and records with respect to the preceding calendar year
to be audited by a: certified public accountant mutually acceptable to
Landlord and Tenant; provided, however, Tenant shall pay any such
disputed amount pending completion of such audit. The amounts payable
under Paragraph 6 by Landlord to Tenant or Tenant to Landlord, as the case
may be, shall be appropriately adjusted on the basis of such audit. If
such audit discloses a liability for further refund by Landlord to Tenant
in excess of ten percent (10%) of the payments previously made by Tenant
for such calendar year, the cost of such audit shall be borne by Landlord;
otherwise the cost of such audit shall be borne by Tenant. If Tenant shall
not request an audit in accordance with the provisions of Paragraph 6
within ninety (90) days of receipt of any Actual Statement, such Actual
Statement shall be conclusively binding upon Landlord and Tenant.
Notwithstanding the foregoing, for purposes of this Lease, 'operating
expenses' shall not include any of the following costs:
Any ground lease rentals.
Costs, including permit, license and inspection costs, incurred with
respect to the installation of improvements for other lessees or occupants
of the Office Building or Project or incurred in renovating or otherwise
improving, decorating, painting or redecorating vacant space for lessees or
other occupants of the Office Building Project.
Expenses in connection with services or other benefits which are not
offered to Lessee but which are provided to other lessees or occupants
of the Office Building Project, not consistent with other class "A"
high-rise office buildings within the Orange County Airport area
marketplace.
Costs incurred by Lessor due to the violation by Lessor or any lessee
or occupant of the Office Building Project (other than Lessee) of the
terms and conditions of any lease of space in the Office Building
Project.
Overhead and profit increments paid to Lessor or to subsidiaries or
affiliates of Lessor for goods and/or services in the Office Building
Project to the extent the same exceeds the costs of such goods and/or
services rendered by unaffiliated third parties on a competitive basis
or any compensation paid to clerks, attendants or other persons
commercial concessions operated by Landlord.
Services provided, taxes attributable to, and costs incurred in
connection with the operation of any retail or restaurant facilities
in the Office Building Project.
Costs incurred in connection with upgrading the Office Building
Project to comply with handicap, hazardous. material, fire and safety
codes or any other laws applicable to the Premises prior to the date
of this Lease.
Tax penalties incurred as a result of Lessor's negligence, inability
or unwillingness to make payments when due, except to the extent
attributable to Lessee's failure to make payments to Lessor for taxes
in accordance with this Lease.
Costs arising from the presence of Hazardous Materials in or about the
Premises of the Office Building Project, including without limitation
Hazardous Materials in the ground water or soil, which either (i)
arose prior to the Commencement Date, or (ii) are not attributable to
Lessee.
Costs arising from Lessor's charitable or political contributions.
Costs to repair any structural components.
Capital costs for sculpture, painting or other objects of art.
Lessor's general corporate overhead and general administrative expenses.
Capital expenditures incurred because of Landlord's failure to comply with
laws enacted on or before the date the Building received its Temporary
certificate of Occupancy, or the equivalent.
Costs incurred by Landlord due to the negligence of Landlord or its agents or
employees, the violation by Landlord of the terms and conditions of any
lease space in the Building or Landlord's failure to adhere to standards
of prudence then observed by Landlord or comparable office buildings in
the vicinity of the Building.
Interest, points and fees on debt or amortization on any mortgage or
mortgages
encumbering the Building or the land upon which the Building is situated.
Rentals and other related expenses incurred in leasing air conditioning
systems, elevators or other equipment ordinarily considered of a capital
nature, except equipment not affixed to the Building which is used in
providing janitorial or similar services.
Advertising and promotional expenditures, and cost of signs in on or about
the Building identifying the owner of the Building or any tenant of the
Building Other than directory signs available to all tenants of the Building.
Costs incurred by Landlord for the repair of damage to the Building to the
extent that Landlord is reimbursed by insurance proceeds.
Bad debt expenses.
Costs of installing or operating and maintaining any specialty service
operated by Landlord, such as an observatory, broadcast facility, luncheon
club, athletic club or any other specialty service other am services
available to tenants of the Building without extra charge.
Attorneys' fees and other costs and expenses incurred in connection with
negotiations or disputes with present or prospective tenant or other
occupants of the Building or any brokerage commissions or any other leasing
fees.
Costs of additional insurance carried by Landlord for new or broader
coverage which is not carried by Landlord during the Base Year and which is
not commonly carried by landlords of similar first-class office building
projects in the Orange County Airport area.
In addition, Landlord agree s that if the taxes for the entire Building or
project are unreasonably increased due to extraordinary improvements within
the Building, and if the tax assessor confirms that such extraordinary
improvements are the source of the tax increase, Landlord shall insure that
Tenant bears no such portion of excess tax increase.
All Building equipment necessary for normal building or project operation
will be Purchased as required for normal project operations. The costs of
said equipment will not be charged to Operating Expenses on a cash basis,
but amortized over useful life in accordance with generally accepted
accounting principals.
All accounting, legal and other consulting expenses shall be restricted
specifically to the prorata share required for the Building and/or Project,
and such costs shall not disproportionately increase in future years.
Landlord agrees that the purchase of supplies, materials and tools shall be
reasonable and customary and be used only for this Building or Project. Such
purchases will not unreasonably increase or be modified during the Lease
term disproportionate to normal building and project operation needs.
Landlord has no prior knowledge of any types of assessments which would
effect Tenant's prorata. share of Operating Expenses which would not be
included in the Base Year as defined within this Lease.
Commencing with the first (1st) anniversary of the Commencement Date and
continuing thereafter to and including the sixtieth (60th) month of the Term
of the Lease, the portion of Operating Expenses which constitute
"Controllable Cost so (as defined below), shall not increase over such four
(4) year period at an average rate in excess of five percent (5 %) per
annum. During the period from months sixty-one (61) through ninety (90) of
the Term of the Lease, Controllable Costs shall not increase beyond the
"Secondary Cap." The Secondary Cap " shall mean an average rate per annum.
equal to the greater of (I) five percent (5 %) per annum, or (ii) the
average annual cost of living increase between the first (lst) month and the
sixtieth (60th) month of the Term of this Tea (which shall be determined by
comparing the Consumer Price index - Urban Wage Earners and Clerical Workers
- Los AngelesAnaheim-Riverside, California, Base 1982-84 ("CPI") compiled by
the U.S. Department of Labor, Bureau of labor Statistics, for month one (1)
with the CP1 for month sixty (60), and dividing any such total increase by
five (5)). During the period from months ninety-one (91) through one-hundred
twenty (120) of the Term of the Lease, Controllable Costs shall not increase
beyond the "Final Cap." The Final Cap shall mean an average rate per annum
of the greater of (x) the Secondary Cap, or (y) the average annual CPI
increase between the sixty-first (61st) month through the ninetieth (90th)
month of the Term of the Lease. The raw specified in clause (y) shall be
computed by comparing the CPI for month sixty-one (61) of the Term with the
CPI for month ninety (90) of the Term, and dividing any such total increase
by 2.5. For purposes of illustration, if the total CPI increase from the
first (lst) month of the Term to the sixtieth (60th) month of the Term is
thirty-five percent (35 %), then the Secondary Cap shall be seen percent (7
%). Similarly, if the total CPI increase from -the sixty-first (61st) to the
ninetieth (90th) month of the Term is twenty percent (20 %), the Final Cap
shall be eight percent (8 %). Controllable Costs shall mean all Operating
Expenses which can increase or decrease at the independent and sole
discretion of Landlord, as opposed to increases or decreases which are
industry-wide or are caused by third parties
or over which Landlord has no independent control. By way of illustration
but not limitation, Operating Expenses paid to a public utility, insurer and
taxing authority for utilities, insurance, real property taxes, and costs of
operating, maintaining and repairing the Building, Common Areas and Parking
Facilities at the level of a Qualified Building as required by this Lease,
as contrasted with the cost of operating, maintaining and repairing the
Building, Common Areas and Parking Facilities at a level below that of a
Qualified Building. -Landlord agrees that approximately every two (2) years
Landlord shall rebid -the janitorial, security, landscape and parking
service contracts for the Building.
67. EARLY OCCUPANCY: Subject to all the terms and conditions of this
Lease, except for the payment of rent, Landlord shall provide to
Tenant a period of early occupancy within the Premises prior to the
commencement of this Lease for thirty (30) days at no charge.
68. WITH BASIC LEASE: In the event of any conflict between the printed
portion of this Lease and the provisions of this Rider, Sections 55
through 67, the provisions of this Rider shall prevail.
"LANDLORD" "TENANT"
KZ3, CRUTTENDEN & CO., INC.,
A California Limited Partnership A California Corporation
By: XXXX VON KARMAN ASSOCIATES,
A California General
Partnership, as Managing By:/s/Xxxxxxx X. Guttfredson
General Partner
Title: CFO
By: THE XXXX COMPANY a
California Corporation, as Date: March 8, 1991
its Managing General Partner
By:/s/Xxxx Xxxxxx
Its: Vice President
DIAGRAM - Ground Floor Plan for 00000 Xxx Xxxxxx Xxx.
EXHIBIT "A-I"
DIAGRAM - Xxxx Center Irvine
EXHIBIT "A-II"
DIAGRAM - Floor Plan for 00000 Xxx Xxxxxx Xxx.
EXHIBIT "A-III"
CHART - PRICING NOTES
EXHIBIT "A-IV"
CHART - XXXX CONSTRUCTION KZ-3, LEASEHOLD IMPROVEMENTS, STANDARD COSTS
EXHIBIT "A-V"
CHART - XXXX CONSTRUCTION KZ-3, LEASEHOLD IMPROVEMENTS, NON-STANDARD COSTS
EXHIBIT "A-VI"
CHART - XXXX CONSTRUCTION KZ-3, LEASEHOLD IMPROVEMENTS, NON-STANDARD COSTS
EXHIBIT "A-VII"
CHART - XXXX CONSTRUCTION KZ-3, QUALIFICATIONS
EXHIBIT "A-VIII"
EXHIBIT B
WORK LETTER AGREEMENT
This work Letter Agreement, is entered into as of the 8th day of
March, 1999 by and between KZ3, a California limited partnership
("Landlord") and Cruttenden & CO.,Inc., California Corporation ('Tenant').
RECITALS:
A. Concurrently with the execution of this Work Letter Agreement, Landlord
and Tenant have entered into a lease (the 'Lease' covering certain premises
(the "Premises") more particularly described in Exhibit A-l" attached to the
Lease.
B. In order to induce Tenant to enter into the Lease (which is hereby
incorporated by reference to the extent that the provisions of this Work
Letter Agreement may apply thereto) and in consideration of the mutual
covenants hereinafter contained, Landlord and Tenant hereby agree as follows:
1. COMPLETION SCHEDULE.
Within ten (10) days after the execution of the Lease, Landlord shall
deliver to Tenant, for Tenant's review and approval, a schedule (the "Work
Schedule') setting forth a timetable for the planning and completion of the
installation of the Tenant improvements to bop constructed in the Premises,
and the Commencement Date for the term of the Lease. The Work Schedule shall
set forth each of the various items of work to be done by or approval to be
given by Landlord and Tenant in connection with the completion of the Tenant
Improvements. Such Schedule shall be submitted to Tenant for its approval
and. upon approval by both Landlord and Tenant. such Schedule shall become
the basis for completing the Tenant Improvement work. If Tenant shall fail
to approve the Work Schedule, as it may be modified after discussions
between Landlord and Tenant, within five (5) working days after the date
such Schedule is first received by Tenant, Landlord may. at its option,
terminate the Lease and all of its obligations thereunder.
2. TENANT IMPROVEMENTS.
Reference herein to'"Tenant Improvements" shall include all work to be done
in the Premises pursuant to the Tenant Improvement Plans described in
Paragraph 3 below, including, but not limited to, partitioning, doors,
ceilings, floor coverings, wall finishes (including paint and
wall-covering), electrical (including lighting, switching, telephones,
outlets. etc.), plumbing, heating, ventilating and air conditioning, fire
protection, cabinets and other millwork.
3. TENANT IMPROVEMENT PLANS.
Immediately after the execution of the Lease. Tenant agrees to meet with
Landlord's architect and/or space planner for the purpose of preparing a
space plan for the layout of the Premises. Based upon such space plan,
Landlord's architect shall prepare final working drawings and specifications
for the Tenant Improvements. Such final working drawings and specifications
may referred to herein as the "Tenant Improvement Plans." The Tenant
Improvement Plans must be consistent with Landlord's standard specifications
(the 'Standards") for tenant improvements for the Building.
4. NON-STANDARD TENANT IMPROVEMENTS.
Landlord shall permit Tenant to deviate from the Standards for the Tenant
Improvements; provided that (a) the deviations shall not be of a lesser
quality that the Standards; Landlord shall permit Tenant to deviate from the
Standards for the Tenant Improvements. provided it not be of a lesser
quality than the Standards; (b) the total lighting for the Premises shall be
consistent with the Space Plan 'A-III'; (C) the deviations conform to
applicable governmental regulations and necessary governmental permits and
approvals have been secured: (d) the deviations do not require building
service beyond the level normally provided to other tenants in the Building
and do not overload the floors: and (e) Landlord has determined in its
reasonable discretion that the deviations are of a nature and quality are
consistent with the overall objectives of the Landlord for the Building.
5. FINAL PRICING AND DRAWING SCHEDULE.
After the preparation of the space plan and after Tenant's written approval
thereof. in accordance with the Work Schedule, Landlord shall cause its
architect to prepare and submit to Tenant the final working drawings and
specifications referred to in Paragraph 3 hereof. Such working drawings
shall be approved by Landlord and Tenant in accordance with the Work
Schedule and shall thereafter be submitted to the appropriate, governmental
body by Landlord's architect for plan checking and the issuance of a
building permit. Landlord, with Tenant's cooperation and prior reasonable
approval, shall cause to be made any changes in the plans and specifications
o necessary to obtain the building permit. Concurrent with the plan
checking, Landlord shall have prepared a final pricing for Tenant's
approval, in accordance with the Work Schedule, taking into account any
modifications which may be required to reflect changes in the plans and
specifications required by the City County hi h the Premises are located.
After final approval of the working drawings, no further changes to the
Tenant Improvement Plans may be made without the prior written approval from
both Landlord and Tenant, and then only after agreement by Tenant to xxx any
excess costs resulting from the design and/or construction of such changes.
Tenant hereby acknowledges that any such changes shall be subject to the
terms of Paragraph 8 hereof.
6. CONSTRUCTION OF TENANT IMPROVEMENTS.
After the Tenant Improvement Plans have been prepared and approved, the
final pricing has been approved and a building permit for the Tenant
Improvements has been issued, Landlord shall enter into a construction
contract with its contractor for the installation of the Tenant Improvements
in accordance with the Tenant Improvement Plans. Landlord shall supervise
the completion of such work and shall use its best efforts to secure
substantial completion of the work in accordance with the Work Schedule. The
cost of such work shall be paid as provided in Paragraph 7 hereof. Landlord
shall not be liable for any direct or indirect damages as a result of delays
in construction beyond Landlord's reasonable control. including. but not
limited to, acts of God, inability to secure governmental approvals or
permits, governmental restrictions. strikes. availability of materials or
labor or delays by Tenant (or its architect or anyone performing services on
behalf of Tenant).
7. PAYMENT OF COST OF THE TENANT IMPROVEMENTS.
(a) Landlord hereby grants to Tenant a "Tenant Allowance" of Thirty-seven
and NO/100 Dollars IS $37.00 per square foot of Usable Area (as defined
below) of the Premises for a total of Three Hundred Seventy-nine Dollars $
379,990.00. Such Tenant Allowance shall be used only for:
(I) Payment of the cost of preparing the space plan and the final working
drawings and specifications. including mechanical, electrical, plumbing and
structural drawings and of all other aspects of the Tenant Improvement
Plans. The Tenant Allowance will not be used for the payment of
extraordinary design work not included within the scope of Landlord's
building standard improvements or for payments to any other consultants,
designers or architects other than Landlord's architect and/or space planner.
(ii) The payment of plan check, permit and license, fees relating to
construction of the Tenant Improvements.
(iii) Construction of the Tenant Improvements. including, without
limitation, the following:
(1) Installation within the Premises of all partitioning, doors, floor
coverings, ceilings, wall coverings and painting. millwork and similar items.
(2) All electrical wiring, lighting fixtures, outlets and switches, and
other electrical work to be installed within the Premises.
(3) The furnishing and installation of all duct work. terminal boxes.
diffusers and accessories required for the completion of the heating.
ventilation and air conditioning systems within the Premises, including the
cost of meter and key control for after-hour air conditioning.
(4) Any additional Tenant requirements including. but not limited to, odor
control, special heating, ventilation and air conditioning, -noise or
vibration control or other special systems.
(5) All fire and life safety control systems such as fire walls, sprinklers,
halon, fire alarms, including piping. wiring and accessories installed
within the Premises.
(6) All plumbing, fixtures, pipes and accessories to be installed
within the Premises.,
(7) Testing and inspection costs.
(8) Contractor's fees, including but not limited to any fees based on
general conditions.
(iv) All other costs to be expended by Landlord in the construction of the
Tenant Improvements, including those costs incurred by, Landlord for
construction of elements of the Tenant Improvements in the Premises, which
construction was performed by Landlord prior to the execution of this Lease
by Landlord and Tenant (i.e., during or after the construction of the base
Building) and which construction is for the benefit of tenants and is
customarily performed by Landlord prior to the execution of leases for such
space in the Building for reasons of economics (examples of such
construction would include the extension of mechanical (including heating,
ventilating and air conditioning systems] and electrical distribution
systems outside of the core of the Building, wall construction, column
enclosures and painting outside of the core of the Building. ceiling hanger
wires and window treatment).
(b) The cost of each item shall be charged against the Tenant Allowance. In
the event that the cost of installing the Tenant improvements, as
established by Landlord's final pricing schedule. shall exceed the Tenant
Allowance. or if any of the Tenant Improvements are not to be paid out of
the Tenant Allowance as provided in Paragraph 7(a) above, the excess shall
be paid by Tenant to Landlord prior to the commencement of construction of
the Tenant Improvements.
(C) In the event that, after the Tenant improvement Plans have been prepared
and a price therefore established by Landlord, Tenant shall require any
changes or substitutions to the Tenant Improvement Plans, any additional
costs thereof shall be paid by Tenant to Landlord prior to the commencement
of such work. Landlord shall have the right to decline Tenant's request for
a change to the Tenant Improvement Plans if such changes are inconsistent
with Paragraphs 3 and 4 above, or if the change would, in Landlord's
opinion, unreasonably delay construction of the Tenant Improvements.
(d) In the event that Tenant modified the Space Plan, per Exhibit 'A-III',
the cost of the Tenant Improvements increases as set forth in Landlord's
final pricing due to the requirements of any governmental agency, Tenant
shall pay Landlord the amount of such increase within five (5) days of
Landlord written notice; provided. however, that Landlord shall first apply
toward such increase any remaining balance in the Tenant Allowance.
(e) Any unused portion of the Tenant Allowance upon completion of the Tenant
Improvements shall be refunded to Tenant or be available to Tenant as a
credit against any obligations of Tenant under the Lease up to a maximum of
Four Dollars ($4.00) per useable square foot. Any unused portion beyond the
($4.00) amount shall go to Landlord.
(f) As used in this Work Letter Agreement, the term "Usable Area" means the
area of the Premises, as determined by measuring the area within the bounds
of the inside surface of the glass in the outer wall of the Building and the
surface facing the Premises of all partitions separating the Premises from
the, Building core, adjoining tenant space and public corridors or other
common areas. No deductions shall be made for space occupied by structural
or functional columns or other projections. The Usable Area of the Premises
is 10,270 square feet, and is consistent with the B.O.M.A. standards
applicable.
8. COMPLETION AND RENTAL COMMENCEMENT DATE.
The commencement of the term of the Lease and Tenant's obligation for the
payment of rental under the Lease shall commence until the earlier of the
following two dates: (I) the date upon which Tenant takes possession of the
Premises; or the date upon which the Tenant Improvements have been
substantially completed as determined reasonably by Landlord's architect;
provided that. if there shall be a delay in substantial completion of the
Tenant Improvements as a result of:
(a) Tenant's failure to approve any item or perform any other obligation in
accordance with and by the date specified in the Work Schedule;
(b) Tenant's request for materials, finishes or installations other
than those readily available;
(C) Tenant's changes in the Tenant Improvement Plans after the
approval by Tenant;
(d) Tenant's request to deviate from the Standards for Tenant
Improvements;
then the commencement of the term of the Lease and the rental commencement
date shall be accelerated by the number days of such delay. Landlord shall
immediately notify Tenant of such delay. The Tenant Improvements shall be
deemed substantially complete notwithstanding the fact that minor details of
construction, mechanical adjustments or decorations which do not materially
interfere with Tenant's use and enjoyment of the
Premises remain to be performed (items normally referred to as "punch list"
items).
IN WITNESS WHEREOF, this Work Letter Agreement is executed as of the date
first above written.
LANDLORD: TENANT:
KZ3, CRUTTENDEN & CO., INC.,
a California limited partnership A California Corporation
By: XXXX VON KARMAN ASSOCIATES, By:/s/Xxxxxxx X.
Guttfredson
a California general
partnership, as Managing By:
General Partner
By: THE XXXX COMPANY,
a California corporation, as
its Managing General
Partner
By:/s/Xxxx Xxxxxx
Its: Vice President
EXHIBIT C
NOTICE OF LEASE TERM DATES AND
TENANT'S PERCENTAGE
To:_______________________________________
Date:_______________
_______________________________________
_______________________________________
Re: Lease dated ____________________, 19___between KZ3, a California limited
partnership
, Landlord, and Tenant concerning Suite located at 00000 Xxx Xxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxx.
Gentlemen:
In accordance with the subject Lease, we wish to advise and/or confirm as
follows:
1. That the Premises have been accepted herewith by the Tenant as being
substantially complete in accordance with the subject Lease and that there
is no deficiency in construction.
2. That the Tenant has possession of the subject Premises and acknowledges
that under the provisions of the subject Lease the term of said Lease shall
commence as of_______________for a term of_________________________ ending on
3. That in accordance with the subject Lease, rental commenced to accrue on
4. If the commencement date of the subject Lease is other than the first day
of the month, the first billing will contain a pro rata adjustment. Each
billing thereafter shall be for the full amount of the monthly installment
as provided for in said Lease.
5. Rent is due and payable in advance on the first day of each and every
month during the term of said Lease. Your rent checks should be made payable
to
________________________________________________________________________at
_______________________________________.
6. The exact number of rentable square feet within the Premises is
_______________square feet.
7. Tenant's Percentage, as adjusted based upon the exact number of rentable
square feet within the Premises, is ____________%.
AGREED AND ACCEPTED
LANDLORD: TENANT:
KZ3,
a California limited partnership
By:
By:
By: XXXX VON KARMAN ASSOCIATES, By:
a California general
partnership. as Managing
General Partner .
By; THE XXXX COMPANY, a
California corporation, as
its Managing General
Partner
By:
Its:
INTENTIONALLY LEFT BLANK
EXHIBIT D
STANDARDS FOR UTILITIES AND SERVICES
The following Standards for utilities and services are in effect. Landlord
reserves the right to adapt nondiscriminatory modifications and additions
hereto.
As long as Tenant is not in default under any of the terms,
conditions, provisions or agreements of this Lease, Landlord shall:
1. Provide non-attended automatic elevator facilities Monday through
Friday, except holidays from 7 A.M. to 6 P.M., and on one elevator available
at all other times.
2. On Monday through Friday, except holidays, from 7 A.M. to 6 P.M., and
on Saturday mornings from 8 A.M. to 12 noon (and other times for a
reasonable additional charge to be fixed by Landlord), ventilate the
Premises and furnish air conditioning or heating on such days and
hours, when in the reasonable judgment of Landlord it may be required
for the comfortable occupancy of the Premises. The air conditioning
system achieves maximum cooling when the window coverings are closed.
Landlord shall not be responsible for room temperatures if Tenant does
not keep all window coverings in the Premises closed whenever the
system is in operation. Tenant agrees to cooperate fully at all times
with Landlord, and to abide by all reasonable regulations and
requirements which Landlord may prescribe for the proper function and
protection of said air conditioning system. Tenant agrees not to
connect any apparatus. device conduit or pipe to the Building chilled
and hot water air conditioning supply lines. Tenant further agrees
that neither Tenant nor its servants, employees, agents, visitors,
licensees or contractors; shall at any time enter mechanical
installations or facilities of the Building or adjust, tamper with,
touch or otherwise in any manner affect said installations or
facilities. The cost of maintenance and service calls to adjust and
regulate the air conditioning system shall be charged to Tenant if the
need for maintenance work results from either Tenant's adjustment of
room thermostats or Tenant's failure to comply with its obligations
under this section, including keeping window coverings closed as
needed. Such work shall be charged at hourly rates equal to then
current journeymen's wages for air conditioning mechanics.
3. Landlord shall furnish to the Premises, during the usual business
hours on business days, electric current as required by the Building
standard office lighting and fractional horsepower office business
machines in an amount not to exceed .025 KWH per square foot per
normal business day. Tenant agrees, should its electrical installation
or electrical consumption be in excess of the aforesaid quantity or
extend beyond normal business hours, to reimburse Landlord monthly for
the measured consumption at the average cost per kilowatt hour charged
to the Building during the period. If a separate meter is not
installed at Tenant's cost, such excess cost will be established by an
estimate agreed upon by Landlord and Tenant, and if the parties fail
to agree, as established by an independent licensed engineer. Tenant
agrees not to use any apparatus or device in, or upon, or about the
Premises which may in any way increase the amount of such services
usually furnished or supplied to said Premises, and Tenant further
agrees not to connect any apparatus or device with wires, conduits or
pipes, or other means by which such services are supplied, for the
purpose of using additional or unusual amounts of such services
without written consent of Landlord. Should Tenant use the same to
excess, the refusal on the part of Tenant to pay upon demand of
Landlord the amount established by Landlord for such excess charge
shall constitute a breach of the obligation to pay rent under this
Lease and shall entitle Landlord to the rights therein granted for
such breach. At all times Tenant's use of electric current shall never
exceed the capacity of the feeders to the Building or the risers or
wiring installation and Tenants shall not install or use or permit the
installation or use of any computer or electronic data processing
equipment in the Premises without the prior written consent of Landlord.
4. Water will be available in public areas for drinking and lavatory
purposes only, but it Tenant requires, uses or consumes water for any
purposes. in addition to ordinary drinking and lavatory purposes, of
which fact Tenant constitutes Landlord to be the sale judge, Landlord
may install a water meter and thereby measure Tenant's water
consumption for all purposes. Tenant shall pay Landlord for the cost
of the meter and the cost of the installation thereof and throughout
the duration of Tenant's occupancy Tenant shall keep said meter and
installation equipment in good working order and repair at Tenant's
own cost and expense. in default of which Landlord may cause such
meter and equipment to be replaced or repaired and collect the cost
thereof from Tenant. Tenant agrees to pay for water consumed, as shown
on said meter, as and when bills are rendered. and on default in
making such payment, Landlord may pay such charges and collect the
same from Tenant. Any such costs or expenses incurred, or payments
made by Landlord for any of the reasons or purposes hereinabove stated
shall be deemed to be additional rent payable by Tenant and
collectible by Landlord as such.
3. Provide janitor service to the Premises, provided the same are used
exclusively as offices, and are kept reasonably in order by Tenant.
and it to be kept clean by Tenant, no one other than persons approved
by Landlord shall be permitted to enter the Premises for such
purposes. If the Premises are not used exclusively as offices, they
shall be kept clean and in order by Tenant, at Tenant's expense, and
to the satisfaction of Landlord, and by persons approved by Landlord.
Tenant shall pay to Landlord the cost of removal of any of Tenant's
refuse and rubbish to the extent that the same exceeds the refuse and
rubbish usually attendant upon the use of the Premises as offices.
Landlord reserves the right to stop service of the elevator, plumbing,
ventilation, air conditioning and electric systems, when necessary, by
reason of accident or emergency or for repairs, alterations or improvements,
in the judgment of Landlord desirable or necessary to be made, until said
repairs, alterations or improvements, shall have been completed, and shall
further have no responsibility or liability for failure to supply elevator
facilities, plumbing, ventilating, air conditioning or electric service,
when prevented
from so doing by strike or accident or by any cause beyond Landlord's
reasonable control, or by laws, rules. orders, ordinances. directions
regulations or requirements of any federal, state, county or municipal
authority or failure of gas. oil or other suitable fuel supply or inability
by exercise of reasonable diligence to obtain gas, oil or other suitable
fuel. It is expressly understood and agreed that any covenant on Landlord's
part to furnish any service pursuant to any of the terms, covenants,
conditions, provisions or agreements of this Lease, or to perform any act or
thing for the benefit of Tenant, shall not be deemed breached if Landlord is
unable to furnish or perform the same by virtue of a strike or labor trouble
or any other Cause whatsoever beyond Landlord's control.
EXHIBIT E
TENANT ESTOPPEL CERTIFICATE
The undersigned, KZ3, a California limited partnership ("Landlord'), with a
mailing address c/o 00000 Xxx Xxxxxx Xxxxxx , Xxxxx 000, Xxxxxx, XX and
__________________________ ("Tenant'), hereby certify to
___________________________________________________________________ as follows:
1. Attached hereto is a true, correct and complete copy of that certain
lease dated 19____, between Landlord and Tenant (the "Lease"). which demises
premises located at
__________________________________________________________The Lease is now
in full force and effect and has not been amended, modified or supplemented,
except as set forth in Paragraph 4 below.
2. The term of the Lease commenced
on______________________________________19_____.
3. The term of the Lease shall expire
on___________________________________19_____.
4. The Lease has (initial one):
(_______)not been amended, modified, supplemented, extended, renewed or
assigned.
(________)been amended, modified, supplemented, extended, renewed or
assigned by the following described agreements copies of which
are attached hereto:
________________________________________________________________________
________________________________________________________________________
5. Tenant has accepted and is now in possession of said premises.
6. Tenant and Landlord acknowledge that the Lease will be assigned
to_______________________________ and that no modification, adjustment,
revision or cancellation of the Lease or amendments thereto shall be
effective unless written consent
of_______________________________________________ is obtained, and that
until further notice, payments under the Lease may continue as heretofore.
7. The amount of fixed monthly rent is $_____________________.
8. The Amount of security deposits (if any) is $______________________. No
other security deposits have been made.
9. Tenant is paying the full lease rental which has been paid in full as of
the date hereof. No rent under the Lease has been paid for more than thirty
(30) days in advance of its due date.
10. All work required to be performed by Landlord under the Lease has been
completed.
11. That Tenant Knows of, no defaults on the part of the Landlord or Tenant
under the Lease.
12. Tenant has no defense as to its obligations under the Lease and claims
no set-off or counterclaim against Landlord.
13. Tenant has no right to any concession (rental or otherwise) or similar
compensation in connection with renting the space it occupies except as
provided in the lease.
All provisions of the Lease and the amendments thereto (if any) referred to
above are hereby ratified.
The foregoing certification is made with the knowledge
that____________________________________is about to fund a loan to Landlord
and that_______________________________________________________is relying
upon the representations herein made in funding such loan.
INTENTIONALLY LEFT BLANK
IN WITNESS WHEREOF, this Certificate has been duly executed and delivered by
the authorized officers of the undersigned as of______________________, 19____.
LANDLORD:
KZ3, ADDRESS:
a California limited partnership
KZ3
By: XXXX VON KARMAN ASSOCIATES, 18500 Xxx Xxxxxx Avenue
4 California general Suite 120
partnership, as Managing Xxxxxx, Xxxxxxxxxx 00000
General Partner
By: THE XXXX COMPANY, a
California corporation, as
its Managing General
Partner
By:_____________________________
Its:____________________________
TENANT: ADDRESS:
______________________________________
________________________________
By:___________________________________
________________________________
By:___________________________________
________________________________
"INTENTIONALLY LEFT BLANK
EXHIBIT F
RULES AND REGULATIONS
1. Except as specifically provided in the Lease to which these Rules and
Regulations are attached, no sign, placard, picture, advertisement.
name or notice shall be installed or displayed on any part of the
outside or inside of the Building without
the prior written consent of Landlord. Landlord shall have the right
to remove, at Tenant's expense and without notice, any sign,
installed or displayed in violation of this rule. All approved signs
or lettering on doors and walls shall be printed, painted, affixed or
inscribed at the expense of Tenant by a person approved by Landlord.
2. If Landlord objects in writing to any curtains, blinds, shades,
screens or hanging plants or other similar objects attached to or used
in connection with any window or door of the Premises, or placed on
any windowsill, which is visible from the exterior of the Premises,
Tenant shall immediately discontinue such use. Tenant shall not place
anything against or glass partitions or doors or windows which may
appear unsightly from outside the Premises. L
3. Tenant shall not obstruct any sidewalks, halls, passages, exits.
entrances, elevators, escalators or stairways of the Building The
halls. passages, exits. entrances, shopping malls, elevators,
escalators an stairways are not open to the general public, but are
open. subject to reasonable regulations, to Tenant's business invite .
Landlord shall in all cases retain the right to control and prevent
access thereto of all persons whose presence in the reasonable
judgment of Landlord would be prejudicial to the,,safety, character,
reputation and interest of the Building and its tenants: provided that
nothing herein contained shall be construed to prevent such access to
persons with whom any tenant normally deals in the ordinary course of
its business, unless such persons are engaged in illegal or unlawful
activities. No tenant and no employee or invitee of any tenant shall
go upon the roof of the Building.
4. The directory of the Building will be provided exclusively for the
display of the name and location of tenants only and Landlord reserves
the right to exclude any other names therefrom.
5. All cleaning and janitorial services for the Building and the Premises
shall be provided exclusively through Landlord, and except with the
written consent of Landlord, no person or persons other than those
approved by Landlord shall be employed by Tenant or permitted to enter
the Building for the purpose of cleaning the same. Tenant shall not
cause any unnecessary labor by carelessness or indifference to the
good order and cleanliness of the Premises.
6. Landlord will furnish Tenant, free of charge, with two keys to each
door lock in the Premises. Landlord may make a reasonable charge for
any additional keys. Tenant shall not make or have made additional
keys, and Tenant shall not alter any lock or install a new additional
lock or bolt on any door of its Premises. Tenant, upon the termination
of its tenancy, shall deliver to Landlord the keys of all doors which
have been furnished to Tenant, and in the event of loss of any keys so
furnished, shall pay Landlord therefore.
7. If Tenant requires telegraphic, telephonic, burglar alarm or similar
services, it shall first obtain, and comply with, Landlord's
instructions in their installation.
8. The Building freight elevator(s) shall be available for use by all
tenants in the Building, subject to such reasonable scheduling as
Landlord, in its discretion, shall deem appropriate. No equipment,
materials, furniture, packages, supplies, merchandise or other
property will be received in the Building or carried in the elevators
except between such hours and in such elevators as May be designated
by Landlord. Tenant's initial move in and subsequent deliveries of
bulky items, such as furniture, safes ,and similar items shall,
unless otherwise agreed in writing by Landlord, be made during the
hours of 6:00 p.m. to 6:00 a.m. or on Saturday or Sunday. Deliveries
during normal office hours shall be limited to normal office supplies
and other small items. No deliveries shall. be made which impede or
interfere with other tenants or the operation of the Building.
9. Tenant shall not place a load upon any floor of the Premises which
exceeds the load per square foot which such floor was designed to
carry and which is allowed by law. Landlord shall have the right to
prescribe the weight, size and position of all equipment, materials,
furniture or other property brought into the Building. Heavy objects
shall, if considered necessary by Landlord, stand on such platforms as
determined by Landlord to be necessary to properly distribute the
weight, which platforms shall be provided at Tenant's expense.
Business machines and mechanical equipment belonging to Tenant, which
cause noise or vibration that May be transmitted to the structure of
the Building or to any space therein to such a degree as to be
objectionable to Landlord or to any tenants in the Building, shall be
placed and maintained by Tenant, at Tenant's expense, on vibration
eliminators or other devices sufficient to eliminate noise or
vibration. The persons employed to move such equipment in or out of
the Building must be acceptable to Landlord. Landlord will not be
responsible for loss or damage to, any such equipment or other
property from any cause, and all damage done to the Building by
maintaining or moving such equipment or other property shall be
repaired at the expense of Tenant.
10. Tenant shall not use or keep in the Premises any kerosene, gasoline or
inflammable or combustible fluid or material other than those limited
quantities necessary for the operation or maintenance of office
equipment. Tenant shall not use or permit to be used in the Premises
any foul or noxious gas or substance, or permit or allow the Premises
to be occupied or used in a manner offensive or objectionable to
Landlord or other occupants of the Building by reason of noise, odors
or vibrations, nor shall Tenant bring into or keep in or about the
Premises any birds or animals.
11. Tenant shall not use any method of heating or air conditioning other
than that supplied by Landlord.
12. Tenant shall not waste electricity, water or air conditioning and
agrees to cooperate fully with Landlord to assure the most effective
operation of the Building's heating and air conditioning and to comply
with any governmental energy-saving rules, laws or regulations of
which Tenant has actual notice, and shall refrain from attempting to
adjust controls. Tenant shall keep corridor doors closed, and shall
close window coverings at the end of each business day.
13. Landlord reserves the right, exercisable without notice and without
liability to Tenant. to change the name and street address of the
Building.
14. Landlord reserves the right to exclude from the Building between the
hours of 6 p.m. and 7 a.m. the following day, or such other hours as
may be established from time to time by Landlord, and on Sundays and
legal holidays, any person unless that person is known to the person
or employee in charge of the Building and has a pass or is properly
identified. Tenant shall be responsible for all persons for whom it
requests passes and shall be liable to Landlord for all acts of such
persons. Landlord shall not be liable for damages for any error with
regard to the admission to or exclusion from the Building of any
person. Landlord reserves the right to prevent access to the Building
in case of invasion, mob. riot, public excitement or other commotion
by closing the doors or by other appropriate action.
15. Tenant shall close and lock the doors of its Premises and entirely
shut off all water faucets or other water apparatus, and electricity,
gas or air outlets before tenant and its employees leave the Premises.
Tenant shall be responsible for any damage or injuries sustained by
other tenants or occupants of the Building or by Landlord for
noncompliance with this rule.
16. Tenant shall not obtain for use on the Premises ice, drinking water,
food, beverage, towel or other similar services or accept barbering or
bootblacking service upon the Premises, except at such hours and under
such regulations as may be fixed by Landlord.
17. The toilet rooms, toilets, urinals, wash bowls and other apparatus
shall not be used for any purpose other than that for which they were
constructed and no foreign substance of any kind whatsoever shall be
thrown therein. The expense of any breakage, stoppage or damage
resulting from the violation of this rule shall be borne by the tenant
who, or whose employees or invitees, shall have caused it.
18. Tenant shall not sell, or permit the sale at retail of newspapers,
magazines, periodicals, theater tickets or any other goods or
merchandise to the general public in or on the Premises. Tenant shall
not make any room-to-room solicitation of business from other tenants
in the Building. Tenant shall not use the Premises for any business or
activity other than that specific provided for in Tenant's Lease.
19. Tenant shall not install any radio or television antenna, loudspeaker
or other devices on the roof or exterior walls of the Building Tenant
shall not interfere with radio or television broadcasting or reception
from or in the Building or elsewhere.
20. Tenant shall not xxxx, drive nails, screw or drill into the
partitions, woodwork or plaster or in any way deface the Premises or
any part thereof, except in accordance with the provisions of the
Lease pertaining to alterations, except hanging pictures and other
customary decorations. Landlord reserves the right to direct
electricians as to where and how telephone and telegraph wires are to
be introduced to the Promises. Tenant shall not cut or bore holes for
wires. Tenant shall not affix any floor covering to the floor of the
Premises in any manner except as approved by Landlord. Tenant shall
repair any damage resulting from noncompliance with this rule. Tenant
shall not install, maintain or operate upon the premises any vending
machines without the written consent of Landlord.
21. Tenant shall not install, maintain or operate upon the premises any
vending machines without the written consent of Landlord.
22. Canvassing, soliciting and distribution of handbills or any other
written material. and peddling in the Building are prohibited. and
Tenant shall cooperate to prevent such activities.
23. Landlord reserves the right to exclude or expel from the Building any
person who, in Landlord's judgement, is intoxicated or under the
influence of liquor or drugs or who is in violation of any of the
Rules and Regulations of the Building.
24. Tenant shall store all its trash and garbage within its premises or in
other facilities provided by Landlord. Tenant Shall not place in any
trash box or receptacle any material which cannot be disposed of in
the ordinary and customary manner of trash and garbage disposal. All
garbage and refuse disposal shall be made in accordance with
directions issued from time to time by Landlord.
25. The Premises shall not be used for the storage of merchandise held for
sale to the general public, or for lodging or for manufacturing of any
kind, nor shall the Premises be used for any improper, immoral or
objectionable purpose. No cooking shall be done or permitted on the
Premises without Landlord's consent, except that use by Tenant of
Underwriters' Laboratory approved equipment for brewing coffee, tea,
hot chocolate and. similar beverages or use of microwave ovens for
employee use shall be permitted, provided that such equipment and use
is in accordance with all applicable, federal, state, county and city
laws, codes, ordinances, rules and regulations.
26. Tenant shall not use in any space or in the public halls of the
Building any hand truck except those equipped with rubber tires and
side guards or such other material-handling equipment as Landlord may
approve. Tenant shall not bring any other vehicles of any kind into
the Building.
27. Without the written consent of Landlord, Tenant shall not use the name
of the Building in connection with or in promoting or advertising the
business of Tenant except as Tenant's address.
28. Tenant shall comply with all safety fire protection and evacuation
procedures and regulations established by Landlord or any governmental
agency.
29. Tenant assumes any and all responsibility for protecting its Premises
from theft, robbery and pilferage, which includes keeping doors locked
and other means of entry to the Premises closed.
30. Tenant's requirements will be attended to only upon appropriate
application to the Building management office by an authorized
individual. Employees of Landlord shall not perform any work or do
anything outside of their regular duties unless under special
instructions from Landlord, and no employee of Landlord will admit any
person (Tenant or otherwise) to any office without specific
instructions from Landlord.
31. Landlord may waive any one or more of these Rules and Regulations for
the benefit of Tenant or any other tenant, but no ,such waiver by
Landlord shall be construed as a waiver of such Rules and Regulations
in favor of Tenant or any other tenant or prevent Landlord from
thereafter enforcing any such Rules and Regulations against any or all
of the tenants of the Building.
32. These Rules and Regulations are in addition to, and shall not be
construed to in any way modify or amend, in whole in part, the terms,
covenants, agreements and conditions of the Lease.
33. Landlord reserves the right to make such other and reasonable Rules
and Regulations as, its reasonable judgment, may from time to time be
needed for safety and security, for care and cleanliness of the
Building and for the preservation of good order therein. Tenant agrees
to abide by all such Rules and Regulations hereinabove stated and any
additional rules and regulations which are adopted.
34. Tenant shall be responsible for the observance of all of the foregoing
rules by Tenant's employees, agents, clients. customers, invitees and
guests.
EXHIBIT G
PARKING RULES AND REGULATIONS
The following rules and regulations shall govern use of the parking
facilities which are appurtenant to the Building.
1. All claimed damage or loss must be reported and itemized in writing
delivered to the parking facility office within ten (1.0) business
days after any claimed damage or loss occurs. Any claim not so made is
waived. Landlord has the option to make repairs at its expense of any
claimed damage within two business days after filing of any claim. In
all court actions the burden of proof to establish a claim remains
with Tenant. Court actions by Tenant for any claim must be filed
within ninety days from date of parking in court of jurisdiction where
a claimed loss occurred. Landlord is not responsible for damage by
water, fire, or detective brakes, or parts, of for the act or
omissions of others, or for articles left in the car The total
liability of Landlord is limited to $250.00 for all damages or loss to
any car Landlord is not responsible for loss of use.
2. Tenant shall not park or permit the parking of any vehicle under its
company in any parking areas designated by Landlord as areas for
parking by visitors to the Building. Tenant shall not leave vehicles
in the parking areas overnight nor park any vehicles in the parking
areas other than automobiles, motorcycles, motor driven or non-motor
driven bicycles or four wheeled trucks.
3. Parking stickers or any other device or form of identification
supplied by landlord as a condition of use of the Parking Facilities
shall remain the property of Landlord. Such parking identification
device must be displayed as requested and may not be mutilated in any
manner. The serial number of the parking identification device may not
be obliterated. Devices are not transferable and any device in the
possession of an unauthorized holder will be void.
4. No overnight or extended term storage of vehicles shall be permitted.
5. Vehicles must be parked entirely within painted stall lines of a
single parking stall.
6. All directional signs and arrows must be observed.
7. The speed limit within all parking areas shall be 5 miles per hour.
8. Parking is prohibited:
(a) in areas not striped for parking;
(b) in aisles;
(c) where "no parking" signs are posted;
(d) on amps
(e) in cross-hatched areas; and
(f) in such other areas as may be designated by Landlord or Landlord's
Parking Operator.
9. Every xxxxxx is required to park and lock his own vehicle. All
responsibility for damage to vehicles is assumed by the xxxxxx.
10. Loss or theft of parking identification devices from automobiles must
be reported to the garage manager immediately and a lost or stolen
report must be filed by the customer at that time. Landlord has the
right to exclude any car from the parking facilities that does not
have an identification device.
11. Any parking identification devices reported lost or stolen found on
any unauthorized car will be confiscated and the illegal holder will
be subject to prosecution.
12. Lost or stolen devices found by the purchaser must be reported to the
Parking Facility Office immediately to avoid confusion.
l3. Washing, waxing, cleaning or servicing of any vehicle in any area not
specifically reserved for such purpose is prohibited.
14. Tenant shall acquaint all persons to whom Tenant assigns parking
spaces of these Rules and Regulation. Parking Facility managers or
attendants are not authorized to make or allow any exception$ to these
Rules and Regulations.
15. Landlord reserves the right to refuse the sale of monthly stickers or
other parking identification devices to any tenant or person and/or
his agents or representatives who willfully refuse to comply with
these Rules and Regulations and all unposted City, State or Federal
ordinances, laws or agreements.
l6. Landlord reserves the right to modify and/or adopt such other
reasonable and non-discriminatory rules and regulations for the
parking facilities as it deems necessary for the operation of the
parking facilities. Landlord may refuse to permit any person who
violates these rules to park in the parking facilities, and any
violation of the rules shall subject the car to removal.
DIAGRAM - TENANT SIGN EXHIBIT
EXHIBIT "H" - Page 1 of 2
DIAGRAM - TENANT SIGN EXHIBIT
EXHIBIT "H" - Page 2 of 2
AMENDMENT NO. 1 TO OFFICE BUILDING LEASE
THIS AMENDMENT NO. 1 TO OFFICE BUILDING LEASE is made as of this 17th day of
June, 1992, by and between KZ3, a California Limited Partnership,
(hereinafter 'Landlord") and CRUTTENDEN & COMPANY, INC., a California
Corporation, (hereinafter 'Tenant').
RECITALS
The parties hereto are "Landlord" and"Tenant" under that certain Office
Building Lease ("Lease") dated March 8, 1991, covering space on the first
(lst) floor of the building located at 00000 Xxx Xxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxx, in the project known as Xxxx Center Irvine.
The parties hereto mutually desire to amend the Lease as hereinafter
provided, effective as of June 17, 1992.
WITNESSETH
The parties agree to amend the Lease as hereinafter provided.
1. Term Commencement Date: In accordance with Section I of the Office
Building Lease dated March 8, 199 1, the term shall commence on June 28,
1991 and terminate June 27,2001.
2. Rent Commencement Date: Rent for the Premises in accordance with
Section 5(a) 'Annual Basic Rent' shall commence June 28, 1991.
Except as modified herein, all other terms and conditions of said Lease
dated March 8, 1901 as amended, between the parties above described shall
remain unchanged and in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.1 to
Office Building Lease as of the day and year first above written.
"LANDLORD": ADDRESS:
KZ3, 00000 Xxx Xxxxxx Xxxxxx,
a California Limited Partnership Xxxxx 000
Xxxxxx, XX 00000
By: XXXX VON KARMAN ASSOCIATES,
a California General Partnership,
as Managing General Partner
By: XXXX MANAGEMENT SERVICES, INC
a Delaware Corporation,
As Agent for the Managing General Partner
By: /s/Xxxxx X. Xxxx
Its: Portfolio Manager
Date: 5/13/93
'TENANT': ADDRESS:
CRUTTENDEN & COMPANY, INC. 00000 Xxx Xxxxxx Xxxxxx,
a California Corporation Xxxxx 000
Xxxxxx, XX 00000
By:/s/Xxxxxxx X. Guttfredson
Its: Secretary/Treasurer
AMENDMENT NO. 2 TO OFFICE BUILDING LEASE
THIS AMENDMENT NO. 2 TO OFFICE BUILDING LEASE ("Amendment") is made as of
this 30th day of June, 1993, by and between KZ3, a California limited
partnership ("Landlord'), and Cruttenden & Co., Inc., a California
Corporation ("Tenant"), with reference to the facts set forth in the
Recitals below.
RECITALS
A. Tenant and Landlord are parties to that certain Office Building Lease
dated March 8, 1991 (the "Original Lease") and Amendment No. I thereto,
dated June 28, 1991 pursuant to which Landlord leased to Tenant certain
space on the ground floor (the 'Original Premises') of that certain office
building located in Irvine, California, commonly known as 00000 Xxx Xxxxxx
Xxxxxx (the "Building"). The Original Premises presently leased by Tenant
consists of approximately 11,732 rentable square feet and is commonly known
as Suite 100.
B. The Original Lease, as amended by Amendment No. 1, shall hereafter be
co1lectively referred to as the 'Lease". Capitalized terms not defined
herein have the meanings given to such terms in the Lease.
C. Landlord and Tenant desire to further amend the Lease to expand the
Original Premises as hereinafter provided.
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals and the mutual
covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Landlord and Tenant agree as follows:
1. Description of Premises. Landlord hereby leases to Tenant and
Tenant hereby leases from Landlord, upon all of the terms and conditions of
the Lease as amended hereby, an additional approximately 5,307 rentable
square feet (4,645 usable square feet) on, the third (3rd) floor of the
Building, commonly known as Suite 300 ("Additional Premises"), making the
total area leased by Tenant pursuant to the Lease as amended hereby,
approximately 17,039 rentable square feet (collectively, the 'New
Premises'). The Additional Premises is more particularly described and shown
on Exhibit "A' which is attached hereto and made a part hereof by this
reference. Except as otherwise set forth in this Amendment, all references
in the Lease to the term "Premises' shall mean the New Premises, including
the Additional Premises.
2. Term and Commencement Date. The term for the Additional Premises shall
be for a five (5) year period, commencing on the date the Tenant
Improvements in the Additional Premises are substantially completed as
contemplated under Paragraph 5 of this Amendment below and terminating five
(5) years thereafter (the 'Additional Premises Term').
3. Annual Basic Rent. Effective as of the commencement of the
Additional Premises Term, continuing for the duration of the Additional
Premises Term, and n6twithstanding anything to the contrary contained in the
Lease, the Monthly Basic Rent for the Additional Premises during the
Additional Premises Term shall be as follows:
Year 1- $1.25 per rentable sq.ft. per month
$6,633.75 per month;
Year 2 - $1.30 per rentable sq.ft. per month
$6,899.10 per month;
Years 3-5- $1.60 per rentable sq.ft. per month
$8,491.20 per month.
4. Operating Expenses and Tenant's Percentage: The Operating Expense
Allowance for the Additional Premises shall be Tenant's Percentage of actual
Operating Expenses for the Additional Premises for the 1993 calendar year.
Tenant shall have no pass through of Operating Expenses during the initial
twelve (12) months of the Additional Premises Term. Tenant's Percentage for
the Additional Premises shall be 2.4174%.
5. Delivery of Possession of Additional Premises to Tenant. Landlord shall
deliver possession of the Additional Premises to Tenant when the 'Tenant
Improvements" therein have been substantially completed by Landlord as
provided in Paragraph 3(c) of, and the Additional Premises shall be improved
in accordance with, the Work Letter Agreement attached hereto as Exhibit "B".
6. Parking. Effective as of the commencement of the Additional Premises
Term, parking for the Additional Premises shall be provided pursuant to and
in accordance with the following:
a) Unreserved Employee Parking. So long as the Lease as
amended hereby is in eff6ct, Landlord hereby leases to Tenant and Tenant
hereby leases from Landlord up to twenty-three (23) unreserved employee
parking spaces. As consideration for the use of such unreserved parking
spaces, Tenant agrees to pay to Landlord, as additional rent under the
Lease, the prevailing parking rate (currently $55.00 per stall per month)
for each such unreserved parking space as established by Landlord from time
to time. Tenant agrees to pay Landlord the additional rent for such
unreserved parking spaces monthly, concurrently with each monthly payment of
Monthly Basic Rent. All unreserved employee parking spaces will be made
available to Tenant, its employees and all other tenants and employees of
the Development entitled to use such parking facilities, on a non-exclusive,
in common basis. Despite the foregoing to the contrary, and so long as
Tenant is not in default under the Lease as amended hereby, Tenant's parking
rent shall be abated for all twenty-three (23) unreserved parking stalls
applicable to the Additional Premises for the Additional Premises Term.
b) Reserved Parking: So long as the Lease as amended hereby is in effect,
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord up
to three (3) reserved parking spaces. As consideration for the use of such
reserved parking spaces, Tenant agrees to pay to Landlord, as additional
rent under the Lease, the prevailing parking rate (currently $115.00 per
stall per month) for each such reserved parking space as established by
Landlord from time to time. Tenant agrees to pay Landlord the additional
rent for such reserved parking spaces monthly, concurrently with each
monthly payment of Monthly Basic Rent. De.V1ite the foregoing to the
contrary, and so long as Tenant is not in default under the Lease as unended
hereby, Tenant's parking rent shall be abated for all three (3) reserved
parking stalls applicable to the Additional Premises for the Additional
Premises Term.
c) Use of Unreserved and Reserved Parking Spaces: With
respect to reserved parking, Tenant shall use only the parking space(s)
specifically designated by Landlord for use by Tenant. With respect to
unreserved employee parking, Tenant shall not use any spaces which have been
specifically assigned by Landlord to other tenants or occupants or for other
uses such as visitor parking or which have been designated by any
governmental entity as being restricted to certain uses. Tenant shall be
obligated to lease the reserved and unreserved parking spaces specified
herein throughout the Term of the Lease and shall not be entitled to any
additional reserved or unreserved parking privileges applicable to the
Premises for the remainder of the Term. of the Lease; provided, however, if
at any time Tenant desires to increase or reduce the number of reserved or
unreserved parking spaces it leases under the terms of this Lease, within
parameters described in this Paragraph, Tenant may notify Landlord in
writing of such desire the and Landlord shall have the right, in its sole
and absolute discretion, to either (a) approve such requested increase in
the number of parking spaces allocated to Tenant (with an appropriate
increase to the additional rent payable by Tenant for such additional spaces
based on the then prevailing parking rates), (b) approve such requested
decrease in the number of parking spaces allocated to Tenant (with an
appropriate reduction in the additional rent, if any, payable by Tenant to
Landlord hereunder (for such eliminated parking spaces), or (c) disapprove
such requested increase or decrease in the number of parking spaces leased
to Tenant. Promptly following receipt of Tenant's written request, Landlord
shall provide Tenant with written notice of its decision, including a
statement of any adjustments to the additional rent payable by Tenant to
Landlord for parking under the Lease, if applicable.
d) General Provisions: Landlord reserves the right to set and
increase monthly fees and/or daily and hourly rates for parking privileges
from time to time during the Term of the Lease. Tenant shall be solely
responsible for the cost of any "reserved parking" signs required for
Tenant's reserved parking stalls within the parking structure. Landlord may
assign any unreserved and unassigned parking spaces and/or make all or any
portion of such spaces reserved, if Landlord reasonably determines that it
is necessary for orderly and efficient parking. Failure to pay for the lease
of any particular parking spaces may be treated by Landlord as a failure to
pay rent as required under the Lease, and, in addition to all other
remedies available to Landlord under the Lease, at law or in equity,
Landlord may elect to
recapture such parking spaces for the balance of the Term of this Lease if
Tenant does not cure such failure to pay within the applicable cure period
set forth in the Defaults and Remedies section of the Lease. Tenant's
parking rights and privileges described herein are personal to Tenant and
may not be assigned or transferred, or otherwise conveyed, without
Landlord's prior written consent, which consent Landlord may withhold in its
sole and absolute discretion. In any event, under no circumstances may
Tenant's parking rights and privileges be transferred, assigned or otherwise
conveyed separate and apart from Tenant's interest in the Lease.
7. Existing Lease Obligation: The term of Tenant's existing lease with
Landlord dated February 5, 1992 ('Existing Lease") for Suite 470 ("Existing
Space"), effective upon the mutual execution of this Amendment, shall be
extended at $1.40 per rentable square foot per month until the commencement
of the Additional Premises Term, at which time the Existing Lease shall
terminate and Tenant shall vacate and surrender the Existing Space to
Landlord in the same condition as when Tenant took possession of the
Existing Space, with the exception of reasonable wear and tear.
8. Right to Lease: (a) Subject to the terms of this Paragraph 8 and
Paragraph 10 below, entitled "Options," Tenant shall have a continuing right
to lease (the "Right to Lease") the approximately 1,400 rentable square feet
on the third (3rd) floor of the Building depicted on Exhibit 'A" attached to
this Amendment (the 'First Offer Space') to the extent the First Offer Space
becomes available for le= to third parties after the expiration of any
existing lease for such space during the Additional Premises Term, including
the expiration of all renewal or extension options under such leases, and
after the existing tenant or occupant vacates such space. Tenant's Right to
Lease is subject and subordinate to the rights of all other existing tenants
of the Building with prior rights relative to the First Offer Space or any
portion thereof. Landlord's Economic Terms (as defined below) will be
delivered to Tenant only after Landlord has appropriately notified and
received negative responses from all other tenants with rights in the First
Offer Space superior to Tenant's rights.
(b) Promptly following written request ("Tenant Request") by
Tenant (which may not be given more than twice in any twelve (12)
consecutive month period), Landlord will give Tenant written notice of the
availability of the First Offer Space and the date the existing tenant or
occupant, if any, is expected to vacate such space ("Landlord's Availability
Notice'). Within five (5) days following delivery of Landlord's
Availability Notice, Tenant will have the right to, in writing, request from
Landlord a written statement setting forth the basic economic terms,
including, but not limited to, Landlord's determination of the Monthly Basic
Rent, Tenant Improvement Allowance, if any, and all other economic terms and
conditions (collectively, the "Economic Terms'), upon which Landlord is
willing to lease the First Offer Space either to Tenant or to a third party.
Such Economic Terms will represent Landlord's reasonable determination of
the fair market rental rate for the First Offer Space determined by Landlord
with reference to the parameters set forth in Paragraph 9(c) of this
Amendment below.
(c) Within five (5) business days after receipt of the Economic Terms from
Landlord, Tenant must give Landlord written notice pursuant to which Tenant
shall elect to either (i) lease the First Offer Space upon such Economic
Terms and the same non-Economic Terms as set forth in the Lease as amended
hereby with respect to the Premises, or (ii) refuse to lease such First
Offer Space. Tenant's failure to timely choose either clause (i) or clause
(ii) above will be deemed to be Tenant's choice of clause (ii) above.
(d) If Tenant chooses (or is deemed to have chosen) clause (c)(ii) above,
then Tenant's Right to Lease the First Offer Space will be null and void
until Tenant once again validly delivers to Landlord a Tenant Request, in
which event, the procedures and sequences set forth above will be followed.
If Tenant exercises its Right to Lease as provided herein, the parties will
promptly thereafter execute an additional amendment to the Lease to include
the First Offer Space in the Premises and to document the lease terms thereof.
9. Option to Extend: (a) Subject to the terms of this Paragraph 9 and
Paragraph 10, entitled "Options," Landlord hereby grants to Tenant an option
(the "Extension Option') to extend the Additional Premises Term for an
additional period of approximately thirty-three (33) months (the "Option
Term") to be conterminous with the term of the Original Lease (which shall
expire June 27, 2001), on the same terms, covenants and conditions as
provided for in this Amendment during the Additional Premises Term, except
that all economic terms such as, without limitation, Monthly Basic Rent, an
Operating Expense Allowance, if any, parking charges, partially abated rent,
etc., shall be established based on the "fair market rental rate' for the
Additional Premises for the Option Term as defined and determined in
accordance with the provisions of this Paragraph 9 below.
(b) The Extension Option must be exercised, if at all, by written notice
('Extension Notice') delivered by Tenant to Landlord no earlier than the
date which is two hundred seventy (270) days, and no later than the date
which is one hundred eighty (180) days prior to the expiration of the
Additional Premises Term.
(c) The term 'fair market rental rate' as used in this
Amendment shall mean Landlord's reasonable and good faith determination of
the annual amount per rentable square foot, projected during the relevant
period, that a willing, comparable, non-equity tenant (excluding sublease
and assignment transactions) would pay, and a willing, comparable landlord
of a comparable Class "A" quality office building located in the Newport
Beach-Irvine-Costa Mesa airport area ('Comparison Area') would accept, at
arm's length (what Landlord is accepting in current transactions for the
Building may be considered), for space comparable size, quality and floor
height as the leased area at issue taking into account the age, quality and
layout of the existing improvements in the leased area at issue and taking
into account items that professional real estate brokers customarily
consider, including, but not limited to, rental rates, office space
availability, tenant size, tenant improvement allowances, operating expenses
and
allowance, parking charges, free rent, free parking and any other lease
concessions, if any, then being charged or granted by Landlord or the
lessors of such similar office buildings. The fair market rental rate will
be an effective rate not specifically including, but accounting for, the
applicable lease concessions described above.
(d) Landlord's determination of the fair market rental rate shall be
delivered to Tenant in writing ("Landlord's Determination") within fifteen
(15) days following Landlord's receipt of the Extension Notice. If Tenant
reasonably objects to Landlord's Determination, then Tenant shall have the
right, by delivering written notice to Landlord within fifteen (15) days
following Tenant's receipt of Landlord's Determination, to rescind Tenant's
Extension Notice, in which event, Tenant's Extension Option shall be void
and of no further force or effect.
10. OPTIONS:
(a) Definition. As used in this Paragraph, the word "Option" has the
following meaning:
(i) The Right to Law Additional Space pursuant to Paragraph 8
herein; and
(ii) The Extension Option pursuant to Paragraph 9 herein.
(b) Options Personal. Each Option granted to Tenant is personal to the
original Tenant executing this Amendment and may be exercised only by the
original Tenant executing this Amendment while occupying the entire
Additional Premises without the intent of thereafter assigning the Lease as
amended hereby or subletting the Additional Premises and may not be
exercised or be assigned, voluntarily or involuntarily, by and person or
entity other than the original Tenant executing this Amendment. The
Options, if any, granted to Tenant under this Amendment are not assignable
separate and apart from the Lease as amended hereby, nor may any Option be
separated from the Lease as amended hereby in any manner, either by
reservation or otherwise.
(c) Effect of Default on Options. Tenant shall have no right to
exercise any Option, notwithstanding any provision of the grant of Option to
the contrary, and Tenant's exercise of any Option may be nullified by
Landlord and deemed of no further force or effect, if W Tenant shall be in
default of any monetary obligation or material non-monetary obligation under
the terms of the Lease as amended hereby (or if Tenant would be in such
default under the Lease as amended hereby, but for the passage of time or
the giving of notice, or both) as of Tenant's exercise of the Option in
question or at any time after the exercise of any such Option and prior to
the commencement of the Option event, or (H) Landlord has given Tenant two
(2) or mom notices of default, whether & ~~t such defaults are subsequently
cured, during any twelve (12) consecutive month period of the Additional
Premises Term.
11. First Month's Rent and Security D=sit: Tenant shall deposit with
Landlord the first,(lst) month's rent relative to the Additional Premises
upon execution of this Amendment in the event Tenant vacates the Existing
Space in accordance with the terms of the Existing Lease and Tenant is not
otherwise in default under the Existing Lease, then Tenant's Security
Deposit of $3,045.00 held by Landlord under the Existing Lease will be
applied to the total Security Deposit of $9,340.32 due with respect to the
Additional Premises. The difference of $6,295.32 (or such appropriate
greater amount, in the event some or all of the $3,045.00 Security Deposit
is unavailable) shall be paid by Tenant to Landlord on or before the date
Tenant takes occupancy of the Additional Premises.
12. Brokers: Landlord shall be responsible for the payment of a commission
based upon the transactions contemplated in this Amendment to Meridian
Pacific, in accordance with Landlord's separate agreement with said broker.
If any additional claims for brokers' or finders.' fees in connection with
the transactions contemplated by this Amendment arise, then Tenant hereby
agrees to indemnify, protect, hold harmless and defend Landlord (with
counsel satisfactory to Landlord) from and against any such claims if they
shall be based upon any statement, representation or agreement made by
Tenant, and Landlord hereby agrees to indemnify, protect, hold harmless and
defend Tenant (with counsel satisfactory to Tenant) if such claims are based
upon any statement, representation or agreement made by Landlord.
13. Refurbishment of Original Premises: Landlord hereby grants to
Tenant the right to refurbish the Original Premises in accordance with the
terms of Paragraphs 14 and 16 of the Original Lease and Rather in accordance
with the space plan dated May 10, 1993 prepared by Xxxxxxx & Associates
(with such modifications thereto as may be approved by Landlord in writing).
Tenant shall be entirely responsible for the costs incurred by Landlord (or
its contractor) in refurbishing the Original Premises (the "Original
Premises Refurbishment Work"). Tenant shall reimburse Landlord for the costs
of the Original Premises Refurbishment Work within ten (10) days following
receipt of copies of invoices therefor. Such payments by Tenant shall.
constitute additional rent due under the Lease as amended hereby. To the
extent the costs of the Original Premises Refurbishment Work do not exceed
$17,070.00, Tenant may elect to amortize such amount in the form of
additional rent due under the Lease with respect to the Original Premises
over the balance of the Original Lease term. Tenant acknowledges that the
Original Premises Refurbishment Work will be conducted in the Original
Premises while Tenant is in occupancy thereof and paying rent pursuant to
the terms of the Lease. Although Landlord will use commercially reasonable
efforts to minimize any interruptions to Tenant's business in the Original
Premises as a result of the conduct of the Original Premises Refurbishment
Work, Tenant acknowledges that interruptions or inconveniences may occur and
agrees to hold Landlord harmless therefrom. No such interruptions or
inconveniences shall constitute an eviction of Tenant from the Original
Premises, whether constructive or otherwise and Tenant shall in any event be
responsible for-paying Monthly Basic Rent relative to the Original Premises
pursuant to and in accordance with the terms of the Lease.
14. No Other Modifications: The parties agree that Paragraphs 56, 58, 61
and 67 of the Original Lease are no longer of any force or effect.
IN WITNESS THEREOF, the parties hereto have executed this Amendment as
of the day and year first above written.
'LANDLORD' 'TENANT'
KZ3, CRUTTENDEN & CO., INC.,
A California limited partnership A California Corporation
By: XXXX VON KARMAN ASSOCIATES,
a California general By:/s/Xxxxxxx X.
Guttfredson
partnership, as Managing
General Partner Title: CFO
By: XXXX MANAGEMENT SERVICES, INC.,
A Delaware Corporation
As Agent
By:/s/Xxxxx X. Xxxx
Its: Portfolio Mgr
[7/9/93]
DIAGRAM - EXHIBIT A TO AMENDMENT NO. 2 TO OFFICE BUILDING LEASE
0000 XXX XXXXXX XXX. - 3RD FLOOR PLAN
EXHIBIT'B'
WORK LETTER AGREEMENT
THIS WORK LETTER AGREEMENT ("Work Letter Agreement') is entered into as of
the 3Oth day of June, 1993 by and between KZ3 a California limited
partnership ("Landlord") and Cruttenden & Co., Inc., a California
Corporation ('Tenant').
RECITALS:
A. Concurrently with the execution of this Work Letter Agreement,
Landlord and Tenant have entered into a lease amendment (the 'Lease')
covering certain premises described in such am6ndment as the Additional
Premises (the 'Premises") more particularly described in the Lease. All
terms not defined herein shall have the same meaning as set forth in the
Lease. To the extent applicable, the provisions of the Lease are hereby
incorporated herein by this reference.
B. In order to induce Tenant to enter into the Lease and in consideration
of the mutual covenants hereinafter contained, Landlord and Tenant hereby
agree as follows:
1 . TENANT IMPROVEMENTS. Landlord shall construct and, except as
provided below to the contrary, pay for the entire cost of constructing the
tenant improvements ('Tenant Improvements') described in Schedule " 1 "
attached hereto (the "Plans"). Tenant may request changes to the Plans
provided that (a) the changes shall not be of a lesser quality than
Landlord's standard specifications for tenant improvements for the
Building, as the same may be changed from time to time by Landlord (the
"Standards"); (b) the changes conform to applicable governmental regulations
and necessary governmental permits and approvals can be secured; (c) the
changes do not require building service beyond the levels normally provided
to other tenants in the Building; (d) the changes do not have any adverse
affect on the structural integrity or systems of the Building; (e) the
changes will not, in Landlord's opinion, unreasonably delay construction of
the Tenant Improvements; and (f) Landlord has determined in its sole
discretion that the changes are of a nature and quality consistent with the
overall objectives of Landlord for the Building. If Landlord approves a
change requested by Tenant, then as a condition to the effectiveness of
Landlord's approval, Tenant shall pay to Landlord upon demand by
Landlord the increased cost attributable to such change as reasonably
determined by Landlord. To the extent any such change results in a delay of
completion of construction of the Tenant Improvements, then such delay shall
constitute a delay caused by Tenant as described below. Landlord shall
provide documentation to Tenant for Tenant's approval prior to commencement
of the change order for any increased costs and changes.
2. CONSTRUCTION OF TENANT IMPROVEMENTS: Upon Tenant's payment to
Landlord of the total amount of the cost of any changes to the Plans, if
any, Landlord's contractor shall commence and diligently proceed with the
construction of the Tenant Improvements, subject to Tenant Delays (as
described in Paragraph 4 below) and Force Majeure Delays (as described in
Paragraph 5 below). Promptly upon the commencement of the Tenant
Improvements, Landlord shall furnish Tenant with a construction schedule
letter setting forth the projected completion dates therefor and showing the
deadlines for any actions required to be taken by Tenant during such
construction and Landlord may from time to time during construction of the
Tenant Improvements modify such schedule. Improvements shall be completed
in a good workmanlike manner and in accordance with manufacturers' standards.
(a) Tenant's failure to timely perform any of its obligations
pursuant to this Work Letter Agreement, including any failure to complete,
on or before the due date therefor, any action item which is Tenant's
responsibility pursuant to the Work Schedule or any schedule delivered by
Landlord to Tenant pursuant to this Work Letter Agreement.
(b) Tenant's changes to the Plans;
(c) Tenant's request for materials, finishes, or installations which
are not readily available or which are incompatible with the Standards;
(d) any delay of Tenant in making payment to Landlord for Tenant's
share of any costs in excess of the cost of the Tenant Improvements as
described in the Plans; or
(e) any other act or failure to act by Tenant, Tenant's employees,
agents, architects, independent contractors, consultants and/or any other
person performing or required to perform services an behalf of Tenant.
5. FORCE MAJEURE DELAYS. For purposes of this Work Letter, 'Force
Majeure Delays' shall mean any actual delay beyond the reasonable. control
of Landlord in the construction of the Tenant Improvements, which is not a
Tenant Delay and which is caused by, without limitation, any one or more of
the following:
(a) Strikes or labor disturbances;
(b) War;
(c) Fire;
(d) Earthquake, flood or other natural disaster,
(e) Unusual and unforeseeable delay not within the reasonable
control of Landlord or its General Contractor or its General Contractor's
subcontractors (excluding financial inability) in transportation of
materials or equipment and the unavailability of reasonable substitutes
therefor;
(f) Casualties; or
(g) Governmental action or inaction (including failure, refusal or
delay in issuing permits, approvals and/or authorizations), or injunction,
permit appeal or court order requiring cessation of construction taking
place in the Premises and/or the Building.
6. FREIGHT ELEVATOR. Landlord shall, consistent with its
obligation to other tenants in the Building, make the freight elevator
reasonably available to Tenant in connection with initial decorating,
furnishing and moving into the Premises. Tenant shall pay for any
after-hours staffing of the freight elevator. The hours for use of freight
elevator are during non-business hours which are before 7:00 a.m. and after
6:00 p.m., Monday through Friday, and before 8:00 a.m. and after 12:00 Noon
on Saturday and all day Sunday.
IN WITNESS WHEREOF, the undersigned Landlord and Tenant have executed this
Work Letter Agreement as of the date of the Lease.
'LANDLORD' 'TENANT'
X00, XXXXXXXXXX & CO., INC.,
A California limited partnership A California Corporation
By: XXXX VON KARMAN ASSOCIATES, By:/s/Xxxxxxx X. Guttfredson
a California general
partnership, as Managing Title: CFO
General Partner
By: XXXX MANAGEMENT SERVICES, INC.,
A Delaware Corporation
As Agent for the Managing
General Partner
By:/s/Xxxxx X. Xxxx
Its: Portfolio Mgr
DIAGRAM - FLOOR PLAN
EXHIBIT B TO AMENDMENT NO. 2 TO OFFICE BUILDING LEASE - Page 1 of 2
CHART - PRICING NOTES
EXHIBIT B TO AMENDMENT NO. 2 TO OFFICE BUILDING LEASE - Page 2 of 2
BASEMENT RENTAL AGREEMENT
THIS AGREEMENT is made and entered into on July 15, 1993 by and between KZ3
(hereinafter referred to as "Landlord") and Cruttenden & Co., Inc.
(hereinafter referred to as "Tenant").
Tenant desires to lease from Landlord certain Areas specifically known as
"9", "10" and "11", consisting of approximately 86 square feet, 86 square
feet, and 92 square feet respectively, located in the basement of the
building at 00000 Xxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxx, for the purpose of
storage.
In consideration of the covenants and promises each to the other made
herein, the parties hereto agree as follows:
1. PREMISES: Landlord agrees to lease to Tenant and Tenant agrees to
lease from Landlord a total of approximately 264 square feet of storage space.
2. TERM: This Agreement shall commence July 26, 1993 and continue on a
month-tomonth basis; cancellable by either party with thirty (30) days prior
written notice.
3. RENT: Tenant agrees to pay to Landlord as rental for the premises
described in paragraph 1 herein the sum of $264.00 per month for the space,
payable on or before the first day of each and every calendar mouth during
the term hereof; however, the first month's rent shall be prorated in the
event the premises are not occupied on the fint day of the Lease calendar
month.
3.1 Rent Default: If Tenant has not paid the rent by the tenth (10th)
day of the month, said amount is deemed delinquent and will be
interest-bearing at the rate of 10% per annum retroactive to the first day
of the month for which the rent has not been paid.
4. IMPROVEMENTS: Tenant agrees to take space in an "as is" basis.
5. DEFAULT: The occurrence of either of the following events shall
constitute a material default and breach of this Lease by Tenant
(permitting Landlord, at Landlord's option, to terminate this Agreement):
(a) The failure by Tenant to make any payment of rent or any other payment
required to be made by Tenant hereunder, as and when due, where such
failure continues for a period of three (3) days after written notice
thereof from Landlord to tenant.
(b) The failure by Tenant to observe or perform any of the provisions of
this Lease to be observed or performed by Tenant, other than described in
paragraph (a) above, where such failure shall continue for a period of ten
(10) days after written notice thereof from Landlord to Tenant.
6. INSURANCE: Landlord does not have personal property damage insurance
covering Tenant's property. Landlord shall not be liable to Tenant, or to
any other person, for any damages on account of loss, damage or theft to
personal property, except for any damages caused by the gross negligence of
Landlord its employees or agents.
7. ENTIRE AGREEMENT, MERGER AND WAIVER: This Basement Rental
Agreement expresses and contains the entire agreement of the parties hereto
and there are no warranties, representations or agreements between them
except as herein contained. This Agreement may not be modified, amended or
supplemented except by a document in writing signed by both Landlord and
Tenant. No consent given or waiver made by Landlord of any breach by Tenant
of any provision of this Agreement shall operate or be construed in any
manner as a waiver of any other provision.
8. SUCCESSORS AND ASSIGNS: The covenants and conditions herein contained
shall apply to and bind the heirs, successors, executors, administrators and
assigns of the parties hereto.
9. NOTICE TO LESSOR: Any notice to Landlord regarding a breach of this
Agreement or termination thereof shall be sent to Landlord at:
00000 Xxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000
LANDLORD
KZ3
A California Limited Partnership
By: XXXX VON KARMAN
ASSOCIATES,
A California general
partnership, as Managing
General Partner
By:/s/Xxxxx X. Xxxx
Its: Portfolio Mgr
TENANT
CRUTTENDEN & CO., INC.
A California Corporation
By: /s/Xxxxxxx X. Guttfredson
Title: CFO
SATELLITE ANTENNA LICENSE AGREEMENT
This Satellite Antenna License Agreement ('Agreement') is made as of the 1st
day of April, 1994 by and between KZ3, a California Corporation
('Licensor'), and Cruttenden & Company, Inc., a California Corporation
("Licensee").
RECITALS
Licensor is the owner of certain real property located at 00000 Xxx Xxxxxx
Xxxxxx, Xxxxxx, XX 927 15 ("Property"), and the office building situated
thereon ("Building").
Licensee is a tenant of Licensor pursuant to that certain Office Building
Lease dated March 8, 1991 and Licensee desires to obtain permission to place
a satellite antenna on the roof of the Building.
The parties agree that Licensee's right to perform certain acts on
Licensor's property is upon and subject to the terms, covenants, and
conditions herein set forth, and Licensee covenants as a material part of
the consideration for this License to keep and perform each and all said
terms, covenants, and conditions and the parties further agree that this
License is made upon condition of such performance.
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth the parties hereto agree as follows:
1. INCORPORATION OF RECITALS. The foregoing Recitals are incorporated
herein by this reference.
2. GRANT OF LICENSE. Licensor hereby grants Licensee a license to place
on the
roof oi the Building a satellite antenna the specifications for which are
described in Exhibit "A" to this Agreement ('Satellite Antenna'). The
Satellite Antenna shall be installed on the roof of the Building at the
location and in the manner described in Exhibit "B" to this Agreement.
3. TERM This Agreement is terminable at will upon thirty (30) days
written notice
by Licensor to Licensee.
4. DESCRIPTION OF LICENSE. This Agreement shall not be construed as a
lease, nor as a grant to Licensee of any present or any fit= right or
interest in the Property or Building, nor shall the expenditure of any
sum of money by Licensee for the purchase or lease of the Satellite
Antenna, for the installation thereof on the Building or for any fee
paid to Licensor pursuant to this Agreement be construed as granting
Licensee any right to continue this License against Licensor's will.
In the event Licensor elects, in its sole and absolute discretion, to
terminate this license, Licensee hereby assumes any and all risks
associated with the cost of installation, removal, or restoration of
the Building or any other related cost or inconvenience resulting
therefrom. Licensee agrees not to enter into any agreements with any
other entity or person where such agreement may contain either express
or implied terms with respect to any right or obligation to maintain
or continue this Agreement. Licensee agrees to indemnify and hold
Licensor free and harmless from and against any obligation to any party
which may claim any right as to the maintenance of the Satellite Antenna, or
the receipt of any signal received therefrom.
5. ASSIGNMENT. This License is personal to the Licensee. It is not
assignable
and any attempt to assign this License will render it null and void.
6. LICENSE FEE. Licensee agrees to pay Licensor $100.00 per month License
Fee") for each satellite for every month of the first year in which this
License is in effect. Said fee is due on the first day of each month.
Licensor reserves the right to increase the License Fee after one year and
upon thirty (30) days written notice to Licensee. Amount shall not exceed
ten percent (10%) per year over initial lease term.
7. INCLUSION OF OTHER USERS. Licensor and Licensee agree that the
signalwhich is to be received by the Satellite Antenna may be one which
other tenants located in the Building may be interested in receiving. In
the event that any other tenant of the Building desires to obtain said
signal, Licensee agrees to provide said signal to any such tenant for the
same fee as the license fee set forth above in Paragraph 6 or such
adjusted fee as it may charge from time to time pursuant to agreement
between Licensor and Licensee. If the license fee set forth above in
Paragraph 6 or such adjusted fee is not sufficient to cover maintenance
costs associated with the operation of the Satellite Antenna, Licensee may
charge a reasonable fee to such tenant to cover a proportionate share of
such costs. Licensee shall pay to Licensor one-half of any such fee paid
to it by any other tenant pursuant to this Paragraph 7. Licensee shall be
responsible for all costs associated with the use or receipt of the signal
by any other tenant.
8. MAINTENANCE AND REPAIR. Licensee shall be solely responsible for the
costs of installing and painting to blend with existing roof and mechanical
equipment screen, maintaining and repairing the Satellite Antenna.
Additionally, Licensee shall upon the removal of the Satellite Antenna
repair and restore the roof and any other affected portions of the Building
to their original condition prior to the installation of the Satellite
Antenna, including but not limited to the removal of any' and all cables
and the repair and restoration of the Building caused thereby. Licensor in
its sole discretion shall have the right upon the termination of this
License to require that all cables installed by Licensee in and through the
Building in connection with the installation and use of the Satellite
Antenna be left in place and abandoned to the benefit of Licensor. In the
event that Licensor elects abandonment of such cable, Licensor shall pay to
Licensee the sum of one dollar ($1.00) as payment in full for purchase of
all cables, connectors, and other equipment pertinent to the installation
of the Satellite Antenna.
9. INSURANCE. Licensee agrees to reimburse Licensor for any additional
cost of insurance attributed to the installation of the Satellite
Antenna on the Building. Additionally, Licensee shall maintain Broad
Form General Liability Insurance, covering both property and
liability, covering the Satellite Antenna in the minimum amount of
$1,000,000.00 Proof of said insurance shall be provided to
Licensor before commencement of the installation of the Satellite
Antenna. Licensor shall be named as an additional insured on said
insurance.
10. UTILITIES. Licensee shall provide all utilities necessary for the
Satellite
Antenna at its own cost and expense, and shall pay for the maintenance and
service of said utilities.
11. GOVERNMENTAL APPROVALS. Licensee shall obtain all governmental
approvals and permits required for the installation of the Satellite
Antenna and shall submit same to Licensor prior to the installation of
the Satellite Antenna.
12. NOTICE BEFORE INSTALLATION. Licensee shall pay when due all claims for
labor or materials furnished or alleged to have b~en furnished and
give Licensor not less than five (5) business days notice prior to the
commencement of any work at the Building. Licensor shall have the
right to post notices of non-responsibility in or on the Building as
provided by law.
13. REMOVAL. Upon termination of this License for any reason whatsoever,
at the
Licensor's option, Licensee shall remove the Satellite Antenna, cables and
all
other improvements associated therewith at Licensee's own cost and
expense, and Licensee shall repair any damage to the Building occasioned
by the installation or removal thereof If Licensee fails to perform its
obligations pursuant to this Paragraph 13, Licensor may, at its option,
perform Licensee's obligations and put the same in good order and repair
and upon demand, Licensee will reimburse Licensor for such expenses with
interest at the maximum legal rate.
14. INDEMNIFICATION. Licensee shall indemnify and hold harmless Licensor
against and from any and all claims arising from the Satellite
Antenna, related improvements, grant of rights or exercise thereof,
under this License, including operation of the Satellite Antenna, and
electrical power interruptions caused by the Satellite Antenna or its
use. Licensee shall further indemnify and hold harmless Licensor
against and from any and all claims arising from any breach or default
in the performance of any obligation on Licensee's part to be
performed under the terms of this License, or arising from any act,
neglect, fault or omission of the Licensee from and against all costs,
including attorney's fees, expenses and liabilities incurred in
connection with such claim or any action or proceeding brought
thereon; and in case any action or proceeding be brought against
Licensor by reason of any such claim, Licensee, upon notice from
licensor, shall defend the same at Licensee's expense by counsel
satisfactory to Licensor. Licensee, as a material part of the
consideration to Licensor, hereby assumes all risk of damage to
property or injury to person in, upon or about the Building and the
Satellite Antenna from any cause whatsoever.
15. ENTIRE AGREEMENT. This instrument contains the entire agreement
between the parties relating to their respective rights and
obligations. Any oral representations or modifications concerning this
instrument shall be of no force in effect. Any subsequent modification
must be in writing, signed by all the parties.
16. ATTORNEYS' FEES. In the event of any controversy, claim or dispute
relating to this instrument, the License, or breach thereof, the
prevailing party shall be entitled to recover from the losing party
reasonable expenses, attorneys' fees and
all costs of suit.
17. SEVERABILITY. Any provision of this License which shall prove to be
invalid,
void or illegal in no way affects, impairs or invalidates any other
provision
hereof, and such other provisions shall remain in full force and
effect.
18. WAIVER. The waiver by Licensor of any breach of any term, covenant or
condition herein contained shall not be deemed to be a waiver of any
subsequent breach of the same or any other t=, covenant or condition
herein contained, nor shall any custom or practice which may transpire
between the parties in the administration of the terms hereof be deemed a
waiver of or in any way affect the right of Licensor to insist upon the
performance by Licensee in strict accordance with said terms. The
subsequent acceptance of the License Fee by Licensor shall not be deemed
to be a waiver of any preceding breach by Licensee of any term covenant or
condition of this License other than the failure of Licensee to pay the
particular License Fee so accepted, regardless of Licensor's knowledge of
such preceding breach at the time of acceptance of such fee.
19. TIME. Time is of the essence with respect to the performance of every
provision of this License.
LICENSOR LICENSEE
KZ3 CRUTTENDEN & CO., INC.
A California Limited Partnership A California Corporation
BY: XXXX VON KARMAN BY:/s/Xxxxxxx X. Guttfredson
ASSOCIATES,
A California General ITS: Senior Vice President
Partnership, as Managing
General Partner
BY:/s/Xxxxx X. Xxxx
ITS: Vice President
BASEMENT RENTAL AGREEMENT
THIS AGREEMENT is made and entered into on April 1, 1994 by and between KZ3
(hereinafter referred to as "Landlord") and Cruttenden & Co. Inc.
(hereinafter referred to as "Tenant").
Tenant desires to lease from Landlord certain Areas specifically known as
Space "8" consisting of approximately 37 square feet located in the basement
of the building at 00000 Xxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxx, for the
purpose of storage.
In consideration of the covenants and promises each to the other made
herein, the parties hereto agree as follows:
1. PREMISES: Landlord agrees to lease to Tenant and Tenant agrees to lease
from Landlord a total of approximately 37 square feet of storage space.
2. TERM: This Agreement shall commence January 1, 1994 and continue on a
month-tomonth basis; cancellable by either party with thirty (30) days-prior
written notice.
3. RENT: Tenant agrees to pay to Landlord as rental for the premises
described in paragraph I herein the sum of $37.00 per month for the space,
payable on or before the first day of each and every calendar month during
the term hereof; however, the first month's rent shall be prorated in the
event the premises are not occupied on the first day of the Lease calendar
month.
3.1 Rent Default: If Tenant has not paid the rent by the tenth (I 0th) day
of the month, said amount is deemed delinquent and will be interest-bearing
at the rate of 10% per annum retroactive to the first day of the month for
which the rent has not been paid.
4. IMPROVEMENTS: Tenant agrees to take space in an "as is" basis.
5. DEFAULT: The occurrence of either of the following e vents shall
constitute a material
default and breach of this Lease by Tenant (permitting Landlord, at
Landlord's option, to terminate this Agreement):
(a) The failure by Tenant to make any payment of rent or any other payment
required to be made by Tenant hereunder, as and when due, where such failure
continues for a period of three (3) days after written notice thereof from
Landlord to tenant.
(b) The failure by Tenant to observe or perform any of the provisions of
this Lease to be observed or performed by Tenant, other than described in
paragraph (a) above, where such failure shall continue for a period of ten
(10) days after written notice thereof from Landlord to Tenant.
6. INSURANCE Landlord does not have personal property damage insurance
covering Tenant's property. Landlord shall not be liable to Tenant, or to
any other person, for any damages on account of loss, damage or theft to
personal property, except for any damages caused by the gross negligence of
Landlord its employees or agents.
7. ENTlRE AGREEMENT, MERGER AND WAIVER: This Basement Rental Agreement
expresses and contains the entire agreement of the parties hereto and there
are no warranties, representations or agreements between them except as
herein contained. This Agreement may not be modified, amended or
supplemented except by a document in writing signed by both Landlord and
Tenant. No consent given or waiver made by Landlord of any breach by Tenant
of any provision of the Agreement shall operate or be construed in any
manner as a waiver of any other provision.
8. SUCCESSORS AND ASSIGNS: The covenants and conditions herein contained
shall apply to and bind the heirs, successors, executors, administrators and
assigns of the parties hereto.
9. NOTICE TO LESSOR: Any notice to Landlord regarding a breach of this
Agreement or termination thereof, shall be sent to Landlord at.
00000 Xxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000
LANDLORD TENANT
KZ3 CRUTTENDEN & CO., INC.
A California Limited Partnership A California Corporation
By: XXXX VON KARMAN By:/s/Xxxxxxx X. Guttfredson
ASSOCIATES,
A California general Its: Senior Vice President
partnership, as Managing
General Partner
By:/s/Xxxxx X. Xxxx
Its: Vice President
AMENDMENT NO. 3 TO OFFICE BUILDING LEASE
THIS AMENDMENT NO. 3 TO OFFICE BUILDING LEASE ("Amendment) is made as
of this 15th day of May, 1995, by and between 18301 Associates, L.P., a
California limited partnership (successor in interest to KZ3, a California
limited partnership) ('Landlord), and
Cruttenden Xxxx, Inc., a California corporation (successor in interest to
Cruttenden & Co.. Inc., a California corporation) ("Tenant"), with reference
to the facts set Forth in the Recitals below.
RECITALS
A. Tenant and Landlord are parties to that certain Office Building
Lease dated March 8, 1991 (the "Original Lease") Amendment No. 1 thereto
dated June 28, 1991, pursuant to which Landlord leased to Tenant
approximately 11,732 rentable square feet of space on the ground floor, and
Amendment No. 2 thereto, dated June 30, 1993, pursuant to which Landlord
leased to Tenant approximately 5,307 rentable square feet of space on the
third (3rd) floor (the "Original Premises") of that certain office building
located in Irvine, California, commonly known as 00000 Xxx Xxxxxx Xxxxxx
(the "Building"). The Original Premises presently leased by Tenant consists
of approximately 17,039 rentable square feet and is commonly known as Xxxxx
000 xxx Xxxxx 000.
B. The Original Lease, as amended by Amendment No. 1 and Amendment
No. 2 shall hereafter be collectively referred to as the "Lease."
Capitalized terms not defined herein have the meanings given to such terms
in the Lease.
C. Landlord and Tenant desire to further amend the Lease to expand
the Original Premises as hereinafter provided.
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals and the mutual
covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Landlord and Tenant agree as follows:
1. Description of Premises: Landlord hereby leases to Tenant and
Tenant hereby leases from Landlord, upon all of the terms and conditions of
the Lease as amended hereby an additional approximately 1,412 rentable
square feet (1,236 usable square feet) on the third (3rd) floor of the
Building, commonly known as Suite 360 ("Additional Premises"), making the
total area leased by Tenant, pursuant to the Lease as amended hereby,
approximately 18.451 rentable square feet (collectively, the "Now
Premises"). The Additional Premises is more particularly described and shown
on Exhibit"A" which is attached hereto and made a part hereof by this
reference. Except as otherwise set forth in this Amendment all references in
the Lease to the term "Premises" shall mean the New Premises, including the
Additional Premises.
2. Term and Commencement Date: The term for the Additional Premises
shall be for a forty-two (42) month period, commending on May 15, 1995, and
terminating forty-two (42) months thereafter on November 14, 1998 (the
"Additional Premises Term").
3. Annual Basic Rent Effective as of the commencement of the
Additional Premises Term, and continuing for the duration of the Additional
Premises Term, and notwithstanding anything to the contrary contained in the
Lease, the Monthly Basic Rent for the Additional Promises during the
Additional Promises Term shall be as follows:
Months 1-42: $1.45/rentable square foot/month;
$2,047.40/month
4. Operating Expense and Tenant's Percentage: The Operating Expense
Allowance for the Additional Premises shall be Tenant's Percentage of actual
Operating Expenses for the Additional Premises for the 1993 calendar year.
Tenant's Percentage for the Additional Premises shall be .6423%.
5. Delivery of Possession of Premises to Tenant: Provided this
Amendment is fully executed and delivered, Landlord shall deliver possession
of the Promises no later than May15, 1995.
6. Parking: Effective as of the commencement of the Additional
Premises Term, parking for the Additional Promises shall be provided
pursuant to and in accordance with the following:
Unreserved Employee Parking: So long as the Lease as amended
hereby is in effect, Landlord hereby leases to Tenant and Tenant hereby
leases from Landlord rive (5) unreserved employee parking spaces for the
Additional Premises, As consideration for the use of such unreserved parking
spaces, Tenant agrees to pay to Landlord, as additional rent under the
Lease, the prevailing parking rate (currently $S5.00 per stall per month)
for each such unreserved parking space as established by Landlord from time
to time. Tenant agrees to pay Landlord the additional rent for such
unreserved parking spaces monthly, concurrently with each monthly payment of
Monthly Basic Rent. All unreserved employee parking spaces will be made
available to Tenant, its employees and all other tenants and employees of
the Development entitled to use such parking facilities, on a non-exclusive,
in-common basis. Despite the foregoing to the contrary, and so long as
Tenant is not in default under the Lease as amended hereby, Tenant's parking
rent shall be reduced to Thirty and 00/100 Dollars ($30.00) per space per
month for all five (5) unreserved parking stalls applicable to the
Additional Premises.
7. Tenant Improvements: Landlord, at its sole cost and expense,
shall provide tenant improvements (the"Tenant Improvements") for the
Premises as set forth on Exhibit "B" attached hereto. Said Tenant
Improvements shall be installed at a time which is mutually agreed upon
between Landlord and Tenant Landlord shall not initially install the "cased
opening" between Suites 300 and 360. Tenant shall have the option to have
Landlord install said opening by providing Landlord with no less than thirty
(30) days prior written notice of such request should Tenant find that the
installation of such opening is desirable to Tenant.
Tenant hereby acknowledges that Landlord shall install the
Tenant Improvements while Tenant is in occupancy of the Premises, therefore,
although Landlord shall use commercially reasonable efforts to minimize
inconvenience to Tenant, Tenant agrees to hold Landlord and its contractors
harmless from any damage or inconvenience caused to Tenant as a result of
such construction activity, unless Landlord or its contractors are grossly
negligent.
8. Option to Extend: Tenant shall be granted the same option to
extend for the Additional Premises described herein as set forth in
paragraph 9 (and subject to paragraph 10) of Amendment No. 2.
9. First Month's Rent and Security Deposit: Upon execution of this
Amendment, Tenant shall deposit with Landlord the first (1st) month's rent
relative to the Additional Premises and an additional security deposit for
the Additional Premises in the amount of Two Thousand Two Hundred Fifty-Two
and 14/100 Dollars ($2,252.14) which shall be held in accordance with the
terms of the lease.
10. Hazardous Materials: (a) Definitions. (1) "Hazardous Materials"
shall mean any substance: (i) that now or in the future is regulated or
governed by, requires investigation or remediation under, or is defined as a
hazardous waste, hazardous substance. pollutant or contaminant under any
governmental statute, code, ordinance, regulation, rule or order, and any
amendment thereto, including for example only the Comprehensive
Environmental Response Compensation and Liability Act, 42 U.S.C. Section9601
et seq, and the Resource Conservation and Recovery Act, 42 U.S.C.
Section6901 et seq., or (ii) that is toxic, explosive, corrosive, flammable.
radioactive~ve, carcinogenic, dangerous or otherwise hazardous, including
gasoline, diesel, petroleum hydrocarbons, polychlorinated biphenyls (PCBs),
asbestos, radon and urea formaldehyde foam insulation.
(2.) 'Environmental Requirements" shall mean all present and
future laws, orders, permits, licenses, approvals. authorizations and other
requirements of any kind applicable to Hazardous Materials.
(3) "Handle' shall mean any installation, handling,
generation, storing. 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 by Tenant or its agents, employees.
contractors. licensees, assignees, sublessees or representatives
(collectively, "Representatives') or its guests, customers, invitees, or
visitors (collectively, "Visitors").
(4) "Environmental Losses" shall mean all costs and expenses
of any kind, damages, foreseeable and unforeseeable consequential damages,
fines and penalties incurred in connection with any violation of an
compliance with Environmental Requirements and all losses of any kind
attributable to the diminution of value, loss of use or adverse effects on
marketability or use of any portion of the Premises or Property.
(b) Tenant's Covenants. No Hazardous Materials shall be Handled at
or about the Premises or Property without Landlord's prior written consent,
which consent may be granted, denied, or conditioned upon compliance with
Landlords requirements, all in Landlord's absolute discretion.
Notwithstanding the foregoing, normal quantities and use of those Hazardous
Materials customarily used in the conduct of general office activities, such
as cooler fluids and cleaning supplies, may be used and stored at the
Premises without Landlord's prior written consent. Tenant's activities at or
about the Premises and Property and the Handling of all Hazardous Materials
shall comply at all times with all Environmental Requirements. At the
expiration or termination of the Lease. Tenant shall promptly remove from
the Premises and Property all Hazardous Materials Handled at the Premises or
the Property. Tenant shall keep Landlord fully and promptly informed of all
Handling of Hazardous Materials, Tenant shall be responsible and liable for
the compliance with all of the provisions of this Section by all of Tenant's
Representatives and Visitors. and all of Tenants obligations under this
Section (including its indemnification obligations under paragraph (e)
below) shall survive the expiration or termination of this Lease.
(c) Compliance. Tenant covenants and warrants that it shall. at its
own expense, promptly take all actions required by any governmental agency
or entity in connection with the Handling of Hazardous Materials at or about
the Premises or Property, including inspection and testing, performing all
cleanup, removal and remediation work required with respect to those
Hazardous Materials, complying with all closure requirements and
post-closure monitoring, and filling all required reports or plans. All of
the foregoing work and all Handling of all Hazardous materials shall be
performed in a good, safe and workmanlike manner by consultants qualified
and licensed to undertake such work and in a manner that will not interfere
with Landlord's use, operation, leasing and sale of the Property and other
tenants' quiet enjoyment of their premises in the Property. Tenant shall
deliver to Landlord prior to delivery to any governmental agency, or
promptly after receipt from any such agency, copies of all permits,
manifests, closure or remedial action plans. notices, and all other
documents relating to the, Handling of Hazardous Materials at or about the
Promises or Property. Tenant shall remove, at its own expense, by bond or
otherwise all liens or charges of any Kind filed or recorded against the
Premises or Property In connection with the Handling of Hazardous Materials,
within ten (20) days after the filing or recording of such lien or charge
and if Tenant fails to do so, Landlord shall have the right, but not the
obligation, to remove the lien or charge at Tenants expense in any manner
Landlord deems expedient.
(d) Landlord's Rights. Landlord shall have the right, but not the
obligation, to enter the Premises at any reasonable time (i) to confirm
Tenant' s compliance with the provisions of this Section, and (ii) to
perform Tenant's obligations under this Section if Tenant has failed to do
so, Landlord shall also have the right to engage qualified Hazardous
Materials consultants to inspect the Promises and review the Handling of
Hazardous Materials, including review of all permits, reports, plans, and
other documents regarding same. Tenant shall pay the costs of Landlord's
consultants' fees and all costs incurred by Landlord in performing Tenant's
obligations under this Section. Landlord shall use reasonable efforts to
minimize any interference with Tenant's business caused by Landlord's entry
into the Premises, but Landlord shall not be responsible for any'
interference caused thereby.
(e) Tenant's Indemnification. Tenant agrees to indemnify, defend and
hold harmless Landlord and its partners and their directors, officers,
shareholders, employees and agents from all Environmental Losses and all
other claims, losses, damages, liabilities, costs and expenses of every
kind, including reasonable attomeys' and consultants' fees and costs,
incurred at any time and arising from or in connection with the Handling of
Hazardous Materials at or about the Premises or Property or Tenant's failure
to comply in full with all Environmental Requirements with respect to the
Premises.
11. Brokers. Landlord shall not be responsible for the payment of a
commission based upon the transaction contemplated in this Amendment to any
real estate broker claiming to represent Tenant if any claims for brokers'
or finders' fees in connection with the transactions contemplated by this
Amendment arise, then Tenant hereby agrees to indemnify, protect, hold
harmless and defend Landlord (with counsel reasonably satisfactory to
Landlord) from and against any such claims if they shall be based upon any
statement, representation or agreement made by Tenant, and Landlord hereby
agrees to indemnify, protect, hold harmless and defend Tenant (with counsel
reasonably satisfactory to Tenant) if such claims are based upon any
statement, representation or agreement made by Landlord.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first above written.
'TENANT' 'LANDLORD'
CRUTTENDEN XXXX, INC., 18301 Associates, L.P.,
a California corporation A California limited
partnership
By: Opportunity Capital
Partners, L.P.,
By: /s/Xxxxxx Xxxxxxxxxx a California limited
partnership
General Partner
Print Name: Xxxxxx Xxxxxxxxxx
By: Office
Opportunity Corporation,
Print Title: Chairman a California corporation,
General Partner
By: /s/Xxxxxxx
Xxxxxx III
Date: 5/22/95
By: /s/R.
Xxxxxxx Xxxxx
Date: 5/22/95
DIAGRAM - Xxxx Center Irvine, Apple Computer Building
EXHIBIT "A" - Amendment No. 3
DIAGRAM OF PREMISES
EXHIBIT "B" - Amendment No. 3
AMENDMENT NO. 4 TO OFFICE BUILDING LEASE
This AMENDMENT NO. 4 TO OFFICE BUILDING LEASE ("Fourth Amendment") is
made as of October _, 1995, by and between 18301 Associates, L.P., a
California limited partnership (successor in interest to KZ3, a California
limited partnership, "Landlord"), and CRUTTENDEN XXXX INCORPORATED, a
California corporation (successor in interest to Cruttenden & Co., Inc., a
California corporation; "Tenant"), with reference to the facts set forth in
the Recitals below.
RECITALS
A. Tenant and Landlord are parties to that certain Office Building
Lease dated March 8, 1991 (the "Original Lease"), pursuant to which Landlord
leased to Tenant approximately 11,732 rentable square feet of space on the
ground floor ("Suite 100") of the office building at 18301 Xxx Xxxxxx Avenue
in Irvine, California (the "Building"), Amendment No. I dated June 17, 1992
(the "First Amendment"), pursuant to which the parties confirmed the
commencement and expiration dates of the term of the Original Lease,
Amendment No. 2 dated June 30, 1993 (the "Second Amendment"), pursuant to
which Landlord leased to Tenant approximately 5,307 rentable square feet of
space on the third floor of the Building ("Suite 300"), and Amendment No. 3
dated May 15, 1995 (the 'Third Amendment'), pursuant to which Landlord
leased to Tenant approximately 1,412 rentable square feet of additional
space on the third floor of the Building ("Suite 360"). The Original Lease.
as amended by the First Amendment, the Second Amendment and the Third
Amendment, is referred to below as the "Lease." Capitalized terms not
defined herein have the meanings given to such terms in the Lease.
B. Landlord and Tenant desire further to amend the Lease to provide
for further expansion of the Premises by approximately 13,622 net additional
rentable square feet, by adding all of the office space on the seventh floor
of the Building (approximately 20,341 rentable square feet; "Suite 700") to
the Premises and deleting Suite 300 (approximately 5.307 rentable square
feet) and Suite 360 (approximately 1,412 rentable square feet) from the
Premises, and to clarify and amend certain provisions of the Lease in
conjunction therewith, all as set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals and the mutual
covenants and agreements contained herein. and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Landlord and Tenant agree as follows:
1. Addition of Suite 700. Landlord hereby leases to Tenant and Tenant
hereby leases from Landlord, upon and subject to all of the terms,
conditions and provisions of the Lease as amended by this Fourth Amendment,
an additional 20,341 rentable square feet of space on the seventh floor of
the Building, as more particularly described and shown on Exhibit "A" which
is attached hereto and made a part hereof by this reference ("Suite 700").
2. Term With Respect to Suite 700. The term of the Lease with respect
to Suite 700 shall commence on the date Landlord's Work in Suite 700 is
substantially completed as provided in the Construction Rider attached
hereto as Exhibit "B" and made a part hereof
this reference (or, in the event of any "Tenant Delays," as defined in the
Construction Rider, the date on which Landlord's Work could have been
substantially completed had there been no such Tenant Delays), or on any
earlier date an which Tenant commences operation of Tenant's business in
Suite 700 (the "Suite 700 Commencement Date"), and shall expire upon
expiration of the term of the Lease on June 27, 2001 (subject to extension
or sooner termination as provided in the Lease). During the term of the
Lease with respect to Xxxxx 000, Xxxxx 000 shall be included in the
"Premises" for all purposes under the Lease (including, without limitation,
Tenants Option to Extend as provided in Paragraph 59 of the Original Lease).
3. Adjustment of Annual Basic Rent. Effective commencing on (and
including) the Suite 700 Commencement Date, and continuing throughout the
remainder of the initial term of the Lease thereafter (through June 27,
2001), in addition to the Annual Basic Rent provided for in the Lease with
respect to Suite 100 (and, subject to termination as provided below, for
Xxxxx 000 xxx Xxxxx 000), Xxxxxx shall pay $31,528.55 ($1.55 per rentable
square foot) per month as additional Monthly Basic Rent for Suite 700.
4. First Month's Rent: Additional Security Deposit. Upon execution
of this Fourth Amendment, Tenant shall pay $33,958.55 on account of the
first month's rent (including parking charges) for Suite 700 and deposit
with Landlord an additional $23,986.09 security deposit to be added to the
existing security deposit pursuant to Paragraph 7 of the Lease. Provided
that Tenant vacates Xxxxx 000 xxx Xxxxx 000 as provided below and is not
otherwise in default under the Lease, then the $9,340.32 security deposit
held by Landlord pursuant to the Second Amendment and the $2,252.14 security
deposit held by Landlord pursuant to the Third Amendment (a total of
$11,592.46) shall be applied to the total additional security deposit of
$35,578.55 which Tenant agrees to make in connection with Tenant's lease of
Suite 700 pursuant to this Fourth Amendment.
5. Remodeling Work. As soon as may be reasonably practicable after
execution of this Fourth Amendment, Landlord shall cause Landlord's
contractor to modify the existing improvements in Suite 700 and to perform
certain other work in Suite 700 ("Landlord's Work") as provided in the
Construction Rider. Landlord currently anticipates that Landlord's Work
will be substantially completed on December 26, 1995. Tenant shall be
responsible for any structural modifications or engineering required in
connection with Tenant's use of the Premises or any work or proposed work in
Suite 700 (but the cost of any such engineering required in connection with
Landlord's Work shall be subject to the S70,000 remodeling allowance
provided by Landlord as provided above). To the best of Landlord's
knowledge, the improvements and modifications currently proposed by Tenant
(and included in Landlord's Work) will not require structural modifications
or engineering, other than that reflected in the preliminary pricing
previously delivered to Tenant.
6. Deletion of Xxxxx 000 xxx Xxxxx 000. As soon as may be reasonably
practicable (and in all events within 30 days) after the Suite 700
Commencement Date, Tenant shall vacate and surrender Xxxxx 000 xxx Xxxxx 000
and the Lease with respect to Xxxxx 000 xxx Xxxxx 000 shall terminate (with
the same force and effect as if the term of the Lease with respect to Xxxxx
000 xxx Xxxxx 000 were amended to expire on such date instead of November
14, 1998) and Tenant shall have no right or option to extend with respect to
Xxxxx 000 xx Xxxxx 000.
7. Parking. Effective commencing on the Suite 700 Commencement Date
(and continuing throughout the term of the Lease thereafter). Landlord shall
provide parking as set forth in Paragraph 57 of the Original Lease, subject
to the provisions of Paragraph 6 of the Second Amendment and Paragraph 6 of
the Third Amendment, except that Tenant shall no longer be entitled to the
number of unreserved and reserved parking spaces or the abatement of parking
charges provided for in the Second Amendment with respect to Suite 300 or in
the Third Amendment with respect to Suite 360, but shall instead be provided
with parking for Suite 700 as set forth below.
(a) Unreserved Employee Parking. Landlord shall lease to Tenant
an additional 81 unreserved employee parking spaces for which Tenant shall
pay as additional rent on a monthly basis $30.00 per stall per month from
(and including) the Suite 700 Commencement Date through the day preceding
the third anniversary of the Suite 700 Commencement Date and $50.00 per
stall per month throughout the initial term thereafter.
(b) Additional Unreserved Employee Parking. Additionally,
Cruttenden Xxxx Incorporated, so long as it continues to occupy all of the
Premises free from any assignment, sublease or other transfer of any of
Tenant's interest in the Lease as amended by this Fourth Amendment and is
not in breach or default beyond any applicable cure periods (it being
intended that these additional parking rights are strictly personal to
Cruttenden Xxxx Incorporated and not transferable to or exerciseable by or
for the benefit of any transferee), shall have the right on an as-needed
basis, to lease up to a total of 27 additional unreserved spaces at the same
rates as provided in clause (a) above, provided, however, that Landlord at
any time and from time to time may terminate Tenant's rights with respect to
all or any portion of these 27 additional spaces if needed to accommodate
other tenants or to stay within parking allocations made to Landlord by the
Xxxx Center Irvine Southwest Owners Association, all as determined by
Landlord in Landlord's sole and absolute discretion.
(c) Reserved Employee Parking. Landlord shall lease to Tenant
an additional three reserved employee parking spaces for which Tenant shall
pay as additional rent on a monthly basis $115.00 per stall per month;
provided, however, that so long as Tenant is not in default (beyond any
applicable cure periods) under the Lease as amended by this Fourth
Amendment, the parking charges for these three reserved spaces shall be
abated for the initial term.
(d) Parking Charges During Extended Term. If Tenant exercises
Tenant's Option to Extend pursuant to Paragraph 59 of the Original Lease,
Tenant Shall during the extension term pay prevailing parking rates (as such
rates may change from time to time) for all parking allocated to Tenant
under the Lease as amended by this Fourth Amendment.
8. Brokerage Commissions. Following execution and delivery of this
Fourth Amendment, and within 30 days after the Suite 700 Commencement Date,
Landlord shall pay Tenant's broker, EQUIS, a commission equal to the sum of
(x) two percent (2%) of the difference between the Base Rental payable for
Suite 700 for the first five years following the Suite 700 Commencement Date
and the remaining Base Rental that would have been payable for Xxxxx 000 xxx
Xxxxx 000 if the Lease was not being terminated early with respect to Suite
WO and Suite 360 as provided above; plus (y) one percent (1%) of the Base
Rental for Suite 700 for the period from the fifth anniversary of the Suite
700 Commencement Date through
June 27,2001. if any other claims for brokers' or finders' fees in
connection with the transactions contemplated by this Fourth Amendment
arise, then Tenant shall indemnify, protect, hold harmless and defend
Landlord (with counsel reasonably satisfactory to Landlord) from and against
any such claims if they shall be based upon any statement, representation or
agreement made by Tenant, and Landlord agrees to indemnify. protect hold
harmless and defend Tenant (with counsel reasonably satisfactory to Tenant)
if such claims are based upon any statement, representation or agreement
made by Landlord.
9. Operating Expenses and Tenant's Percentage. The Operating Expense
Allowance for Suite 700 shall be Tenant's Percentage for Suite 700 of actual
Operating Expenses for the 1996 calendar year. Tenant's Percentage for Suite
700 shall be 9.264% (the 20,341 square foot rentable area of Suite 700,
divided by the total rentable area of the Building), In addition, Tenant
shall continue to pay Tenant's Percentage of the Operating Expenses paid or
incurred by Landlord in excess of the Operating Expense Allowance for Suite
100 as provided in the Original Lease (with Operating Expenses determined by
Generally Accepted Accounting Practices, calculated assuming the Building is
100% fully occupied, and calculated for a full year of operation, as
provided in the Original Lease), except that the exclusions from Operating
Expenses set forth in Paragraph 66 of the Original Lease shall be modified
as follows:
(i)The sixth bulleted subparagraph at the bottom of page 11 of
the Rider to the Original Lease (the "Rider") shall be modified to read as
follows: "Services provided, taxes attributable to, and costs incurred in
connection with the operation of any retail or restaurant facilities in the
Building, except to the extent that such services, taxes or costs are
consistent with the services, taxes and costs incurred in connection with
office space uses in the Building."
(ii) The last sentence of the final bulleted subparagraph of
Paragraph 66, on page 15 of the Rider (provisions concerning certain service
contracts) shall be deleted.
(iii) For purposes of determining Tenant's Percentage of the
Operating Expenses paid or incurred by Landlord in excess of the Operating
Expense Allowance for Suite 700, the sixth bulleted subparagraph on page 13
of the Rider (concerning additional insurance costs) shall be inapplicable
(but such provisions shall continue to apply for purposes of determining
Tenant's Percentage of the Operating Expenses paid or incurred by Landlord
in excess of the Operating Expense Allowance for Suite 100).
(iii) For purposes of determining Tenant's Percentage of the
Operating Expenses paid or incurred by Landlord in excess of the Operating
Expense Allowance for Suite 700, the final bulleted subparagraph of
Paragraph 66, beginning on page 14 of the Rider and continuing onto page 15
of the Rider (providing for certain 'caps" on Operating Expenses) shall be
inapplicable (but such provisions shall continue to apply for purposes of
determining Tenant's Percentage of the Operating Expenses paid or incurred
by Landlord in excess of the Operating Expense Allowance for Suite 100).
10. Provisions of Lease No Longer Applicable. Except only as
otherwise provided to the contrary in this Fourth Amendment, the provisions
of the Second Amendment (other than Paragraph 14 of the Second Amendment
concerning certain provisions of the Original Lease no longer of any force
or effect), and the provisions of the Third Amendment (other than Paragraph
10 of the Third Amendment concerning Hazardous Materials), are no longer
applicable and are no longer of any force or effect. Tenant shall have no
further Option to Expand or other right to lease additional space of any
kind. Tenant's only remaining option is the Option to Extend pursuant to
Paragraph 59 of the Original Lease, as amended by this Fourth Amendment.
11. Clarification of Certain Lease Provisions. Paragraph 63 of the
Original Lease (concerning refurbishment of the Premises) shall apply with
respect to Suite 100 as provided in the Lease, but shall not apply with
respect to Suite 700). Notwithstanding any provisions in the Lease to the
contrary, Tenant acknowledges that the rentable area of the Building, the
rentable area of Suite 100, the rentable area of Suite 300, the rentable
area of Suite 360, the rentable area of suite 700, and other rentable and
usable area calculations for purposes of the Lease as amended by this Fourth
Amendment have been performed for Landlord by Xxxxxxxxx Systems. in
accordance with customary procedures based on a modified SOMA Standard
(under which certain ground floor common areas are included in calculating
the load factor for office space on all floors and perimeter measurements
are made to the glass line). The preceding sentence is intended to confirm
the method used for calculation of rentable areas, but any and all rights of
the parties under the Lease to have space remeasured (to confirm or
determine rentable areas using such method) shall continue to apply and
shall not be deemed to have been deleted by virtue of the preceding
sentence. Notwithstanding anything to the contrary in subparagraph (g) of
Paragraph 23 of the Original Lease, the Lease shall not be terminated in the
event of a casualty during the last 12 months of the term if Landlord elects
to repair, reconstruct or restore the Premises.
12. Supplemental Air Conditioning. Tenant shall continue to be
responsible for operation, maintenance and repair of all supplemental air
conditioning equipment installed in the Premises for Tenant and shall at all
times maintain in effect an air conditioning system maintenance and service
contract reasonably satisfactory to Landlord, with an air conditioning
service contractor reasonably satisfactory to Landlord, providing for
regular maintenance and service of such supplemental air conditioning
equipment Tenant acknowledges and agrees that no more than a total of three
tons of air-cooled (as opposed to water-cooled) supplemental air
conditioning equipment may be employed on any floor at any time. To the
greatest extent reasonably practicable and permissible under applicable laws
and tariffs, the electrical supply for the supplemental air conditioning
shall (at Tenants cost) be separately metered. Tenant shall pay Landlord for
the cost of all such electricity as billed by Landlord monthly (or at such
other intervals not more frequently than monthly as Landlord may elect).
13. Reaffirmation of Lease. Except as set forth in this Fourth
Amendment, the provisions of the Lease shall remain unchanged and in full
force and effect.
IN WITNESS WHEREOF, Landlord and Tenant have entered into and executed
this Fourth Amendment as of October __, 1995.
TENANT: LANDLORD:
CRUTTENDEN XXXX INCORPORATED, 18301 ASSOCIATES, L.P.,
a California corporation a California Limited Partnership
By: OPPORTUNITY CAPITAL PARTNERS.
L.P.,
a California limited
partnership
Its Administrative General
Partner
By: /s/Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Chief Financial Officer By: OFFICE OPPORTUNITY
CORPORATION,
A California corporation
Its General Partner
By: ___________________________
Name:__________________________
Title:_________________________
By: /s/Xxxxxxx Xxxxxx III
Name: Xxxxxxx Xxxxxx III
Title: President
By: /s/R. Xxxxxxx Xxxxx
` Name: R. Xxxxxxx Xxxxx
Title: CFO
