EXHIBIT 10.11
OFFICE BUILDING LEASE
This OFFICE BUILDING LEASE ("Lease") is entered into as of the ___ day of
__________, 1997 by and between XXXX CENTER IRVINE NUMBER TWO, a California
limited partnership ("Landlord"), and NEW CENTURY FINANCIAL CORPORATION, a
Delaware corporation ("Tenant").
1. BASIC LEASE TERMS. For purposes of this Lease, the following terms have the
following definitions and meanings:
(a) LANDLORD: Xxxx Center Irvine Number Two,
a California limited partnership
(b) LANDLORD'S ADDRESS (FOR NOTICES):
c/x Xxxx, 00000 Xxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: 18400 Building Manager,
or such other place as Landlord may from time to time designate by notice to
Tenant.
(c) TENANT: New Century Financial Corporation
a Delaware corporation
(d) TENANT'S ADDRESS (FOR NOTICES):
00000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxx Xxxxx
or such other place as Tenant may from time to time designate by notice to
Landlord.
(e) DEVELOPMENT: The parcel(s) of real property commonly known as Xxxx Center
Irvine and located in the City of Irvine (the "City"), County of Orange (the
"County"), State of California ("State"), as shown on the site plan attached
hereto as Exhibit "A-1".
(f) BUILDING: An eleven (11) story office building located within the
Development, which Building contains approximately 218,922 Rentable Square Feet
(subject to adjustment as provided in Exhibit "B"), with the street address of
18400 Xxx Xxxxxx.
(g) PREMISES: Those certain premises known as Suite(s) 135 (1,806 Rentable
and 1,575 Usable Square Feet), 900 (also referred to as the Takedown Space in
Paragraph 43 of the Addendum attached hereto, 19,097 Rentable and 16,639 Usable
Square Feet), 1000 (19,852 Rentable and 18,639 Usable Square Feet), and 1100
(19,434 Rentable and 18,275 Usable Square Feet) as generally shown on the floor
plan(s) attached hereto as Exhibit "A-II", located on the 1st, 9th, 10th and
11th floor(s), respectively, of the Building, which Premises contains in the
aggregate approximately 60,189 Rentable Square Feet and 55,128 Usable Square
Feet (subject to adjustment as provided in Exhibit "B" and Exhibit "D").
(h) TENANT'S PERCENTAGE: Tenant's percentage of the Building on a Rentable
Square Foot Space basis, which initially is 27.4934% (which percentage
includes the Takedown Space), subject to final determination as provided in
Exhibit "B" and Exhibit "D".
(i) TERM: five (5) Lease Years and zero (0) Months.
(j) ESTIMATED COMMENCEMENT DATE: June 1, 1997.
ESTIMATED EXPIRATION DATE: May 31, 2002.
(k) COMMENCEMENT DATE: The date on which the Term of this Lease will commence
as determined in accordance with the provisions of Exhibit "C" and as
stated on Exhibit "D".
(l) INITIAL MONTHLY BASE RENT: $ 74,787.44 (41,092 Rentable Square Feet [which
is the size of the Premises less the Takedown Space] multiplied by $1.82),
subject to adjustment as provided in Subparagraph 1(m) below and as
otherwise provided in this Lease.
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(m) ADJUSTMENT TO MONTHLY BASE RENT: Monthly Base Rent will be adjusted in
accordance with the following:
MONTHS MONTHLY BASE RENT
Commencement Date through 11/30/97 $ 74,787.44 (41,092 Rentable Square
Feet [which is the size
of the Premises less the
Takedown Space] multiplied
by $1.82)
12/01/97 through the day prior to the $109,543.98 (60,189 Rentable Square
1st anniversary of the Commencement Date Feet multiplied by $1.82)
1st anniversary of the Commencement Date $112,553.43 (60,189 Rentable Square
through the day prior to the 2nd Feet multiplied by $1.82)
anniversary of the Commencement Date
2nd anniversary of the Commencement Date $115,562.88 (60,189 Rentable Square
through the day prior to the 3rd Feet multiplied by $1.87)
anniversary of the Commencement Date
3rd anniversary of the Commencement Date $118,572.33 (60,189 Rentable Square
through the day prior to the 4th Feet multiplied by $1.97)
anniversary of the Commencement Date
4th anniversary of the Commencement Date $121,581.78 (60,189 Rentable Square
through the expiration of the original Feet multiplied by $2.02)
Lease Term
(n) OPERATING EXPENSE ALLOWANCE: Operating Expense Allowance means that portion
of Tenant's Percentage of Operating Expenses as described in Paragraph 6 below
which Landlord has included in Monthly Base Rent, which, for purposes of this
Lease, will be an amount equal to Tenant's Percentage of Operating Expenses for
the 1997 calendar base year.
(o) SECURITY DEPOSIT: $82,266.18 cash (110% of the initial Monthly Base
Rent) plus a Letter of Credit as described in Paragraph 44 of the Addendum
attached hereto.
(p) TENANT IMPROVEMENTS: All tenant improvements installed or to be installed by
Landlord or Tenant within the Premises to prepare the Premises for occupancy
pursuant to the terms of the Work Letter Agreement attached hereto as Exhibit
"C".
(q) TENANT IMPROVEMENT ALLOWANCE: $ 15.00 per Usable Square Foot of the
Premises, exclusive of Suite 135, which will be subject to a $25.00 per Usable
Square Foot Tenant Improvement Allowance, and the Takedown Space, which will be
subject to a Tenant Improvement Allowance as described in Paragraph 43(b) of the
Addendum attached hereto, to be applied as provided in the Work Letter Agreement
attached hereto as Exhibit "C".
(r) PERMITTED USE: General office space consistent with the majority of other
office users in the Development.
(s) PARKING: As described in Paragraph 48 of the Addendum attached hereto,
subject to the terms and conditions of Paragraph 32 below and the Rules and
Regulations regarding parking contained in Exhibit "H".
(t) BROKER(S): Xxx & Associates and Xxxx Marketing Group.
(u) GUARANTOR(S): N/A
(v) INTEREST RATE: shall mean the greater of ten percent (10%) per annum or two
percent (2%) in excess of the prime lending or reference rate of Xxxxx Fargo
Bank N.A. or any successor bank in effect on the twenty-fifth (25th) day of the
calendar month immediately prior to the event giving rise to the Interest Rate
imposition; provided, however, the Interest Rate will in no event exceed the
maximum interest rate permitted to be charged by applicable law.
(w) EXHIBITS: "A-I" through "K", inclusive, which Exhibits are attached to this
Lease and incorporated herein by this reference. As provided in Paragraph 3
below, a completed version of Exhibit "D" will be delivered to Tenant after
Landlord delivers possession of the Premises to Tenant.
(x) ADDENDUM PARAGRAPHS: 40 through 50, inclusive, which Addendum Paragraphs
are attached to this Lease and incorporated herein by this reference.
This Paragraph 1 represents a summary of the basic terms and definitions of this
Lease. In the event of any inconsistency between the terms contained in this
Paragraph 1 and any specific provision of this Lease, the terms of the more
specific provision shall prevail.
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2. PREMISES AND COMMON AREAS.
(a) PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the Premises as improved or to be improved with the Tenant Improvements
described in the Work Letter Agreement, a copy of which is attached hereto as
Exhibit "C".
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(b) MUTUAL COVENANTS. Landlord and Tenant agree that the letting and hiring of
the Premises is upon and subject to the terms, covenants and conditions
contained in this Lease and each party covenants as a material part of the
consideration for this Lease to keep and perform their respective obligations
under this Lease.
(c) TENANT'S USE OF COMMON AREAS. During the Term of this Lease, Tenant shall
have the nonexclusive right to use in common with Landlord and all persons,
firms and corporations conducting business in the Development and their
respective customers, guests, licensees, invitees, subtenants, employees and
agents (collectively, "Development Occupants"), subject to the terms of this
Lease, the Rules and Regulations referenced in Paragraph 32 below and all
covenants, conditions and restrictions now or hereafter affecting the
Development, the following common areas of the Building and/or the Development
(collectively, the "Common Areas"):
(i) The Building's common entrances, hallways, lobbies, public restrooms on
multi-tenant floors, 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 within the Building which serve
the Premises (collectively, "Building Common Areas"); and
(ii) The parking facilities of the Development which serve the Building (subject
to the provisions of Exhibit "H"), loading and unloading areas, trash areas,
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roadways, sidewalks, walkways, parkways, driveways, landscaped areas, plaza
areas, fountains and similar areas and facilities situated within the
Development and appurtenant to the Building which are not reserved for the
exclusive use of any Development Occupants (collectively, "Development Common
Areas").
(d) LANDLORD'S RESERVATION OF RIGHTS. Provided Tenant's use of and access to the
Premises and parking to be provided to Tenant under this Lease is not interfered
with in an unreasonable manner, Landlord reserves for itself and for all other
owner(s) and operator(s) of the Development Common Areas and the balance of the
Development, the right from time to time to: (i) install, use, maintain, repair,
replace and relocate pipes, ducts, conduits, wires and appurtenant meters and
equipment above the ceiling surfaces, below the floor surfaces, within the walls
and in the central core areas of the Building; (ii) make changes to the design
and layout of the Development, including, without limitation, changes to
buildings, driveways, entrances, loading and unloading areas, direction of
traffic, landscaped areas and walkways, and, subject to the parking provisions
contained in Paragraph 32 and Exhibit "H", parking spaces and parking
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areas; and (iii) use or close temporarily the Building Common Areas, the
Development Common Areas and/or other portions of the Development while engaged
in making improvements, repairs or alterations to the Building, the Development,
or any portion thereof.
3. TERM. The term of this Lease ("Term") will be for the period designated in
Subparagraph 1(i), commencing on the Commencement Date, and ending on the last
day of the month in which the expiration of such period occurs, including any
extensions of the Term pursuant to any provision of this Lease or written
agreement of the parties. Notwithstanding the foregoing, if the Commencement
Date falls on any day other than the first day of a calendar month then the Term
of this Lease will be measured from the first day of the month following the
month in which the Commencement Date occurs. Each consecutive twelve (12) month
period of the Term of this Lease, commencing on the Commencement Date, will be
referred to herein as a "Lease Year". Landlord's Notice of Lease Term Dates and
Tenant's Percentage ("Notice"), in the form of Exhibit "D" attached hereto, will
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set forth the Commencement Date, the date upon which the Term of this Lease
shall end, the Rentable Square Feet within the Premises and the Building, and
Tenant's Percentage and will be delivered to Tenant after Landlord delivers
possession of the Premises to Tenant. The Notice will be binding upon Tenant
unless Tenant objects to the Notice in writing within five (5) days of Tenant's
receipt of the Notice.
4. POSSESSION.
(a) DELIVERY OF POSSESSION. Landlord agrees to deliver possession of the
Premises to Tenant in accordance with the terms of the Work Letter
Agreement attached hereto as Exhibit "C", or, if no Work Letter Agreement
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is required for this Lease, then Landlord agrees to deliver possession of the
Premises to Tenant on the Commencement Date. Notwithstanding the foregoing,
Landlord will not be obligated to deliver possession of the Premises to Tenant
(but Tenant will be liable for rent if Landlord can otherwise deliver the
Premises to Tenant) until Landlord has received from Tenant all of the
following: (i) a copy of this Lease fully executed by Tenant and the guaranty of
Tenant's obligations under this Lease, if any, executed by the Guarantor(s);
(ii) the Security Deposit and the first installment of Monthly Base Rent; (iii)
executed copies of policies of insurance or certificates thereof as required
under Paragraph 19 of this Lease; (iv) copies of all governmental permits and
authorizations, if any, required in connection with Tenant's operation of its
business within the Premises; and (v) if Tenant is a corporation or partnership,
such evidence of due formation, valid existence and authority as Landlord may
reasonably require, which may include, without limitation, a certificate of good
standing, certificate of secretary, articles of incorporation, statement of
partnership, or other similar documentation.
(b) CONDITION OF PREMISES. Prior to the Commencement Date and in accordance
with the Work Letter Agreement attached hereto as Exhibit "C", Landlord and
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Tenant will jointly conduct a walk-through inspection of the Premises and will
jointly prepare a punch-list ("Punch-List") of items required to be installed by
Landlord under the Work Letter Agreement which require finishing or correction.
The Punch-List will not include any items of damage to the Premises caused by
Tenant's move-in or early entry, if permitted, which damage will be corrected or
repaired by Landlord, at Tenant's expense or, at Landlord's election, by Tenant,
at Tenant's expense. Other than the items specified in the Punch-List, by taking
possession of the Premises, Tenant will be deemed to have accepted the Premises
in its condition on the date of delivery of possession and to have acknowledged
that the Tenant Improvements have been installed as required by the Work Letter
Agreement and that there are no additional items needing work or repair.
Landlord will cause all items in the Punch-List to be repaired or corrected
within thirty (30) days following the preparation of the Punch-List or as soon
as practicable after the preparation of the Punch-List. Tenant acknowledges that
neither Landlord nor any agent of Landlord has made any representation or
warranty with respect to
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the Premises, the Building, the Development or any portions thereof or with
respect to the suitability of same for the conduct of Tenant's business and
Tenant further acknowledges that Landlord will have no obligation to construct
or complete any additional buildings or improvements within the Development.
5. RENT.
(a) MONTHLY BASE RENT. Tenant agrees to pay Landlord the Monthly Base Rent for
the Premises (subject to adjustment as hereinafter provided) in advance on the
first day of each calendar month during the Term without prior notice or demand,
except that Tenant agrees to pay the Monthly Base Rent for the first month of
the Term directly to Landlord concurrently with Tenant's delivery of the
executed Lease to Landlord. If the Term of this Lease commences or ends on a day
other than the first day of a calendar month, then the rent for such period will
be prorated in the proportion that the number of days this Lease is in effect
during such period bears to the number of days in such month. All rent must be
paid to Landlord, without any deduction or offset, in lawful money of the United
States of America, at the address designated by Landlord or to such other person
or at such other place as Landlord may from time to time designate in writing.
Monthly Base Rent will be adjusted during the Term of this Lease as provided in
Subparagraph l(m).
(b) ADDITIONAL RENT. All amounts and charges to be paid by Tenant hereunder,
including, without limitation, payments for Operating Expenses, insurance,
repairs and parking, will be considered additional rent for purposes of this
Lease, and the word "rent" as used in this Lease will include all such
additional rent unless the context specifically or clearly implies that only
Monthly Base Rent is intended.
(c) LATE PAYMENTS. Late payments of Monthly Base Rent and/or any item of
additional rent will be subject to interest and a late charge as provided
in Subparagraph 22(f) below.
6. OPERATING EXPENSES.
(a) OPERATING EXPENSES. In addition to Monthly Base Rent, throughout the Term
of this Lease, Tenant agrees to pay Landlord as additional rent in accordance
with the terms of this Xxxxxxxxx 0, Xxxxxx'x Xxxxxxxxxx of Operating Expenses
as defined in Exhibit "E" attached hereto to the extent Tenant's Percentage
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of Operating Expenses exceeds Tenant's Operating Expense Allowance.
(b) ESTIMATE STATEMENT. Prior to the Commencement Date and on or about March 1st
of each subsequent calendar year during the Term of this Lease, Landlord will
endeavor to deliver to Tenant a statement ("Estimate Statement") wherein
Landlord will estimate both the Operating Expenses and Tenant's Percentage of
Operating Expenses for the then current calendar year. If the estimate of
Tenant's Percentage of Operating Expenses in the Estimate Statement exceeds
Tenant's Operating Expense Allowance, Tenant agrees to pay Landlord, as
"Additional Rent", one-twelfth (1/12th) of such excess each month thereafter,
beginning with the next installment of rent due, until such time as Landlord
issues a revised Estimate Statement or the Estimate Statement for the succeeding
calendar year; except that, concurrently with the regular monthly rent payment
next due following the receipt of each such Estimate Statement, Tenant agrees to
pay Landlord an amount equal to one monthly installment of such excess (less any
applicable Operating Expenses already paid) multiplied by the number of months
from January, in the current calendar year, to the month of such rent payment
next due, all months inclusive. If at any time during the Term of this Lease,
but not more often than quarterly, Landlord reasonably determines that Tenant's
Percentage of Operating Expenses for the current calendar year will be greater
than the amount set forth in the then current Estimate Statement, Landlord may
issue a revised Estimate Statement and Tenant agrees to pay Landlord, within
thirty (30) days of receipt of the revised Estimate Statement, the difference
between the amount owed by Tenant under such revised Estimate Statement and the
amount owed by Tenant under the original Estimate Statement for the portion of
the then current calendar year which has expired. Thereafter Tenant agrees to
pay Tenant's Percentage of Operating Expenses based on such revised Estimate
Statement until Tenant receives the next calendar year's Estimate Statement or a
new revised Estimate Statement for the current calendar year. In the event
Tenant's Percentage of Operating Expenses for any calendar year is less than
Tenant's Operating Expense Allowance, Tenant will not be entitled to a credit
against any rent, additional rent or Tenant's Percentage of future Operating
Expenses payable hereunder.
(c) ACTUAL STATEMENT. By March 1st of each calendar year during the Term of this
Lease (commencing March 1 in the calendar year following the base year for
Operating Expenses, if applicable), Landlord will also endeavor to deliver to
Tenant a statement ("Actual Statement") which states the actual Operating
Expenses for the preceding calendar year. If the Actual Statement reveals that
Tenant's Percentage of the actual Operating Expenses is more than the total
Additional Rent paid by Tenant for Operating Expenses on account of the
preceding calendar year, Tenant agrees to pay Landlord the difference in a lump
sum within thirty (30) days of receipt of the Actual Statement. If the Actual
Statement reveals that Tenant's Percentage of the actual Operating Expenses is
less than the Additional Rent paid by Tenant for Operating Expenses on account
of the preceding calendar year, Landlord will credit any overpayment toward the
next monthly installment(s) of Tenant's Percentage of the Operating Expenses due
under this Lease.
(d) MISCELLANEOUS. Any delay or failure by Landlord in delivering any Estimate
Statement or Actual Statement pursuant to this Paragraph 6 will not constitute a
waiver of its right to require an increase in rent nor will it relieve Tenant of
its obligations pursuant to this Paragraph 6, except that Tenant will not be
obligated to make any payments based on such Estimate Statement or Actual
Statement until thirty (30) days after receipt of such Estimate Statement or
Actual Statement. Even though the Term has expired and Tenant has vacated the
Premises, when the final determination is made of Tenant's Percentage of the
actual Operating Expenses for the year in which this Lease terminates, Tenant
agrees to promptly pay any increase due over the estimated expenses paid and,
conversely, any overpayment made in the event said expenses decrease shall
promptly be rebated by Landlord to Tenant. Such obligation will be a continuing
one which will survive the expiration or earlier termination of this Lease.
Prior to the expiration or sooner termination of the Lease Term and Landlord's
acceptance of Tenant's surrender of the Premises, Landlord will have the right
to estimate the actual Operating Expenses for the then current Lease Year and to
collect from Tenant prior to Tenant's surrender of the Premises, Tenant's
Percentage of any excess of such actual Operating Expenses over the estimated
Operating Expenses paid by Tenant in such Lease Year.
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7. SECURITY DEPOSIT. Concurrently with Tenant's execution of this Lease, Tenant
will deposit with Landlord the Security Deposit designated in Subparagraph 1(o).
As used in this Lease, the term Security Deposit includes cash held by Landlord
as well as any amounts secured by the Letter of Credit described in Paragraph 44
of the Addendum attached hereto. The Security Deposit will be held by Landlord
as security for the full and faithful performance by Tenant of all of the terms,
covenants, and conditions of this Lease to be kept and performed by Tenant
during the Term hereof. If Tenant fully and faithfully performs its obligations
under this Lease, including, without limitation, surrendering the Premises upon
the expiration or sooner termination of this Lease in compliance with
Subparagraph 11(a) below, the Security Deposit or any balance thereof will be
returned to Tenant (or, at Landlord's option, to the last assignee of Tenant's
interest hereunder) within thirty (30) days following the expiration of the
Lease Term and Tenant's complete vacation of the Premises, provided that
Landlord may retain the Security Deposit until such time as any outstanding rent
or additional rent amount has been determined and paid in full. The Security
Deposit is not, and may not be construed by Tenant to constitute, rent for the
last month or any portion thereof. If Tenant defaults with respect to any
provisions of this Lease including, but not limited to, the provisions relating
to the payment of rent or additional rent, Landlord may (but will not be
required to) use, apply or retain all or any part of the 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 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 agrees, within ten (10) days after
Landlord's written demand therefor, to deposit cash with Landlord in an amount
sufficient to restore the Security Deposit to its original amount and Tenant's
failure to do so shall constitute a default under this Lease. Landlord is not
required to keep Tenant's Security Deposit separate from its general funds, and
Tenant is not entitled to interest on such Security Deposit. Should Landlord
sell its interest in the Premises during the Term hereof and deposit with the
purchaser thereof the then unappropriated Security Deposit funds, Landlord will
be discharged from any further liability with respect to such Security Deposit.
8. USE.
(a) TENANT'S USE OF THE PREMISES. The Premises may be used for the use or uses
set forth in Subparagraph 1(r) only, and Tenant will not use or permit the
Premises to be used for any other purpose without the prior written consent of
Landlord, which consent Landlord may withhold in its sole and absolute
discretion. Nothing in this Lease will be deemed to give Tenant any exclusive
right to such use in the Building or the Development.
(b) COMPLIANCE. At Tenant's sole cost and expense, Tenant agrees to procure,
maintain and hold available for Landlord's inspection, all governmental licenses
and permits required for the proper and lawful conduct of Tenant's business from
the Premises, if any. Tenant agrees not to use, alter or occupy the Premises or
allow the Premises to be used, altered or occupied in violation of, and Tenant,
at its sole cost and expense, agrees to use and occupy the Premises and cause
the Premises to be used and occupied in compliance with: (i) any and all laws,
statutes, zoning restrictions, ordinances, rules, regulations, orders and
rulings now or hereafter in force and any requirements of any insurer, insurance
authority or duly constituted public authority having jurisdiction over the
Premises, the Building or the Development now or hereafter in force, (ii) the
requirements of the Board of Fire Underwriters and any other similar body, (iii)
the Certificate of Occupancy issued for the Building, and (iv) any recorded
covenants, conditions and restrictions and similar regulatory agreements, if
any, which affect the use, occupation or alteration of the Premises, the
Building and/or the Development. Tenant agrees to comply with the Rules and
Regulations referenced in Paragraph 28 below. Tenant agrees not to do or permit
anything to be done in or about the Premises which will in any manner obstruct
or interfere with the rights of other tenants or occupants of the Development,
or injure or unreasonably annoy them, or use or allow the Premises to be used
for any unlawful or unreasonably objectionable purpose. Tenant agrees not to
cause, maintain or permit any nuisance or waste in, on, under or about the
Premises or elsewhere within the Development. Notwithstanding anything contained
in this Lease to the contrary, all transferable development rights related in
any way to the Development are and will remain vested in Landlord, and Tenant
hereby waives any rights thereto.
(c) HAZARDOUS MATERIALS. Except for ordinary and general office supplies
typically used in the ordinary course of business within office buildings, such
as copier toner, liquid paper, glue, ink and common household cleaning materials
(some or all of which may constitute "Hazardous Materials" as defined in this
Lease), Tenant agrees not to cause or permit any Hazardous Materials to be
brought upon, stored, used, handled, generated, released or disposed of on, in,
under or about the Premises, the Building, the Common Areas or any other portion
of the Development by Tenant, its agents, employees, subtenants, assignees,
licensees, contractors or invitees (collectively, "Tenant's Parties"), without
the prior written consent of Landlord, which consent Landlord may withhold in
its sole and absolute discretion. Upon the expiration or earlier termination of
this Lease, Tenant agrees to promptly remove from the Premises, the Building and
the Development, at its sole cost and expense, any and all Hazardous Materials,
including any equipment or systems containing Hazardous Materials which are
installed, brought upon, stored, used, generated or released upon, in, under or
about the Premises, the Building and/or the Development or any portion thereof
by Tenant or any of Tenant's Parties. To the fullest extent permitted by law,
Tenant agrees to promptly indemnify, protect, defend and hold harmless Landlord
and Landlord's partners, officers, directors, employees, agents, successors and
assigns (collectively, "Landlord Indemnified Parties") from and against any and
all claims, damages, judgments, suits, causes of action, losses, liabilities,
penalties, fines, expenses and costs (including, without limitation, clean-up,
removal, remediation and restoration costs, sums paid in settlement of claims,
attorneys' fees, consultant fees and expert fees and court costs) which arise or
result from the presence of Hazardous Materials on, in, under or about the
Premises, the Building or any other portion of the Development and which are
caused or permitted by Tenant or any of Tenant's Parties. Tenant agrees to
promptly notify Landlord of any release of Hazardous Materials at the Premises,
the Building or any other portion of the Development which Tenant becomes aware
of during the Term of this Lease, whether caused by Tenant or any other persons
or entities. In the event of any release of Hazardous Materials caused or
permitted by Tenant or any of Tenant's Parties, Landlord shall have the right,
but not the obligation, to cause Tenant to immediately take all steps Landlord
deems necessary or appropriate to remediate such release and prevent any similar
future release to the satisfaction of Landlord and Landlord's mortgagee(s). As
used in this Lease, the term "Hazardous Materials" shall mean and include any
hazardous or toxic materials, substances or wastes as now or hereafter
designated under any law, statute, ordinance, rule, regulation, order or ruling
of any agency of the State, the United States Government or any local
governmental authority, including, without limitation, asbestos, petroleum,
petroleum hydrocarbons and petroleum based products, urea formaldehyde foam
insulation, polychlorinated biphenyls ("PCBs"), and freon and other
chlorofluorocarbons. The provisions of this Subparagraph 8(c) will survive the
expiration or earlier termination of this Lease.
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9. NOTICES. Any notice required or permitted to be given hereunder must be in
writing and may be given by personal delivery (including delivery by overnight
courier or an express mailing service) or by mail, if sent by registered or
certified mail. Notices to Tenant shall be sufficient if delivered to Tenant at
the address designated in Subparagraph 1(d) and notices to Landlord shall be
sufficient if delivered to Landlord at the address 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. The parties acknowledge that the broker(s) who negotiated this
Lease are stated in Subparagraph 1(t). Each party represents and warrants to
the other, that, to its knowledge, no other broker, agent or finder (a)
negotiated or was instrumental in negotiating or consummating this Lease on its
behalf, and (b) is or might be entitled to a commission or compensation in
connection with this Lease. Landlord and Tenant each agree to promptly
indemnify, protect, defend and hold harmless the other from and against any and
all claims, damages, judgments, suits, causes of action, losses, liabilities,
penalties, fines, expenses and costs (including attorneys' fees and court costs)
resulting from any breach by the indemnifying party of the foregoing
representation, including, without limitation, any claims that may be asserted
by any broker, agent or finder undisclosed by the indemnifying party. The
foregoing mutual indemnity shall survive the expiration or earlier termination
of this Lease.
11. SURRENDER; HOLDING OVER.
(a) SURRENDER. The voluntary or other surrender of this Lease by Tenant, or a
mutual cancellation thereof, shall not constitute a merger, and shall, at the
option of Landlord, operate as an assignment to Landlord of any or all subleases
or subtenancies. Upon the expiration or earlier termination of this Lease,
Tenant agrees to peaceably surrender the Premises to Landlord broom clean and in
a state of first-class order, repair and condition, ordinary wear and tear and
casualty damage (if this Lease is terminated as a result thereof pursuant to
Paragraph 20) excepted, with all of Tenant's personal property and Alterations
(as defined in Paragraph 13) removed from the Premises to the extent required
under Paragraph 13 and all damage caused by such removal repaired as required by
Paragraph 13. Prior to the date Tenant is to actually surrender the Premises to
Landlord, Tenant agrees to give Landlord reasonable prior notice of the exact
date Tenant will surrender the Premises so that Landlord and Tenant can schedule
a walk-through of the Premises to review the condition of the Premises and
identify the Alterations and personal property which are to remain upon the
Premises and which items Tenant is to remove, as well as any repairs Tenant is
to make upon surrender of the Premises. The delivery of keys to any employee of
Landlord or to Landlord's agent or any employee thereof alone will not be
sufficient to constitute a termination of this Lease or a surrender of the
Premises.
(b) HOLDING OVER. Tenant will not be permitted to hold over possession of the
Premises after the expiration or earlier termination of the Term without the
express written consent of Landlord, which consent Landlord may withhold in its
sole and absolute discretion. If Tenant holds over after the expiration or
earlier termination of the Term, Landlord may, at its option, treat Tenant as a
tenant at sufferance only, and such continued occupancy by Tenant shall be
subject to all of the terms, covenants and conditions of this Lease, so far as
applicable, except that the Monthly Base Rent for any such holdover period shall
be equal to the greater of (i) one hundred fifty percent (150%) (125% during the
first three months of the holdover) of the Monthly Base Rent in effect under
this Lease immediately prior to such holdover, or (ii) the then currently
scheduled rental rate for comparable space in the Building, in either event
prorated on a daily basis. Acceptance by Landlord of rent after such expiration
or earlier termination will 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 under this Lease or as otherwise
provided by law. If Tenant fails to surrender the Premises upon the expiration
of this Lease in accordance with the terms of this Paragraph 11 despite demand
to do so by Landlord, Tenant agrees to promptly indemnify, protect, defend and
hold Landlord harmless from all claims, damages, judgments, suits, causes of
action, losses, liabilities, penalties, fines, expenses and costs (including
attorneys' fees and costs), including, without limitation, costs and expenses
incurred by Landlord in returning the Premises to the condition in which Tenant
was to surrender it and claims made by any succeeding tenant founded on or
resulting from Tenant's failure to surrender the Premises. The provisions of
this Subparagraph 11(b) will survive the expiration or earlier termination of
this Lease.
12. TAXES ON TENANT'S PROPERTY. Tenant agrees to pay before delinquency, all
taxes and assessments (real and personal) levied against (a) any personal
property or trade fixtures placed by Tenant in or about the Premises (including
any increase in the assessed value of the Premises based upon the value of any
such personal property or trade fixtures); and (b) any Tenant Improvements or
Alterations in the Premises (whether installed and/or paid for by Landlord or
Tenant) to the extent such items are assessed at a valuation higher than the
valuation at which tenant improvements conforming to Landlord's building
standard tenant improvements are assessed. If any such taxes or assessments are
levied against Landlord or Landlord's property, Landlord may, after written
notice to Tenant (and under proper protest if requested by Tenant) pay such
taxes and assessments, in which event Tenant agrees to reimburse Landlord all
amounts paid by Landlord within twenty (20) business days after demand by
Landlord; provided, however, Tenant, at its sole cost and expense, will have the
right, with Landlord's cooperation, to bring suit in any court of competent
jurisdiction to recover the amount of any such taxes and assessments so paid
under protest.
13. ALTERATIONS. After installation of the initial Tenant Improvements for the
Premises pursuant to Exhibit "C", Tenant may, at its sole cost and expense, make
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alterations, additions, improvements and decorations to the Premises
(collectively, "Alterations") subject to and upon the following terms and
conditions:
(a) PROHIBITED ALTERATIONS. Tenant may not make any Alterations which: (i)
affect any area outside the Premises; (ii) affect the Building's structure,
equipment, services or systems, or the proper functioning thereof, or Landlord's
access thereto; (iii) affect the outside appearance, character or use of the
Building or the Building Common Areas; (iv) in the reasonable opinion of
Landlord, lessen the value of the Building; or (v) will violate or require a
change in any occupancy certificate applicable to the Premises.
(b) LANDLORD'S APPROVAL. Before proceeding with any Alterations which are not
prohibited in Subparagraph 13(a) above, Tenant must first obtain Landlord's
written approval of the plans, specifications and working drawings for such
Alterations, which approval Landlord will not unreasonably withhold or delay;
provided, however, Landlord's prior approval will not be required for any such
Alterations which are not prohibited by Subparagraph 13(a) above and which cost
less than Two Thousand Five Hundred Dollars ($2,500) as long as (i) Tenant
delivers to Landlord notice and a copy of any final plans, specifications
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and working drawings for any such Alterations at least ten (10) days prior to
commencement of the work thereof, and (ii) the other conditions of this
Paragraph 13 are satisfied, including, without limitation, conforming to
Landlord's rules, regulations and insurance requirements which govern
contractors. Landlord's approval of plans, specifications and/or working
drawings for Alterations will not create any responsibility or liability on the
part of Landlord for their completeness, design sufficiency, or compliance with
applicable permits, laws, rules and regulations of governmental agencies or
authorities. In approving any Alterations, Landlord reserves the right to
require Tenant to increase its Security Deposit to provide Landlord with
additional reasonable security for the removal of such Alterations by Tenant as
may be required by this Lease.
(c) CONTRACTORS. Alterations may be made or installed only by contractors and
subcontractors which have been approved by Landlord, which approval Landlord
will not unreasonably withhold or delay; provided, however, Landlord reserves
the right to require that Landlord's contractor for the Building be given an
opportunity to bid for any Alteration work. Before proceeding with any
Alterations, Tenant agrees to provide Landlord with ten (10) days prior written
notice and Tenant's contractors must obtain and maintain, on behalf of Tenant
and at Tenant's sole cost and expense: (i) all necessary governmental permits
and approvals for the commencement and completion of such Alterations; and (ii)
if requested by Landlord, a completion and lien indemnity bond, or other surety,
reasonably satisfactory to Landlord for such Alterations. Throughout the
performance of any Alterations, Tenant agrees to obtain, or cause its
contractors to obtain, reasonable workers' compensation insurance and general
liability insurance in compliance with the provisions of Paragraph 19 of this
Lease.
(d) MANNER OF PERFORMANCE. All Alterations must be performed: (i) in accordance
with the approved plans, specifications and working drawings; (ii) in a lien-
free and first-class and workmanlike manner; (iii) in compliance with all
applicable permits, laws, statutes, ordinances, rules, regulations, orders and
rulings now or hereafter in effect and imposed by any governmental agencies and
authorities which assert jurisdiction; (iv) in such a manner so as not to
interfere with the occupancy of any other tenant in the Building, nor impose any
additional expense upon nor delay Landlord in the maintenance and operation of
the Building; and (v) at such times, in such manner, and subject to such rules
and regulations as Landlord may from time to time reasonably designate.
(e) OWNERSHIP. The Tenant Improvements, including, without limitation, all
affixed sinks, dishwashers, microwave ovens and other fixtures, and all
Alterations will become the property of Landlord and will remain upon and be
surrendered with the Premises at the end of the Term of this Lease; provided,
however, Landlord may, by written notice delivered to Tenant concurrently with
Landlord's approval of the final working drawings for any Alterations, identify
those Alterations which Landlord will require Tenant to remove at the end of the
Term of this Lease. Landlord may also require Tenant to remove Alterations which
Landlord did not have the opportunity to approve as provided in this Paragraph
13. If Landlord requires Tenant to remove any Alterations, Tenant, at its sole
cost and expense, agrees to remove the identified Alterations on or before the
expiration or earlier termination of this Lease and repair any damage to the
Premises caused by such removal (or, at Landlord's option, Tenant agrees to pay
to Landlord all of Landlord's costs of such removal and repair).
(f) PLAN REVIEW. Tenant agrees to pay Landlord, as additional rent, the
reasonable costs of professional services and costs for general conditions of
Landlord's third party consultants if utilized by Landlord (but not Landlord's
"in-house" personnel) for review of all plans, specifications and working
drawings for any Alterations, within twenty (20) business days after Tenant's
receipt of invoices either from Landlord or such consultants. In addition,
Tenant agrees to pay Landlord, within twenty (20) business days after completion
of any Alterations, a fee to cover Landlord's costs of supervising and
administering the installation of such Alterations, in the amount of five
percent (5%) of the cost of such Alterations, but in no event less than Two
Hundred Fifty Dollars ($250.00).
(g) PERSONAL PROPERTY. All articles of personal property owned by Tenant or
installed by Tenant at its expense in the Premises (including Tenant's business
and trade fixtures, furniture, movable partitions and equipment [such as
telephones, copy machines, computer terminals, refrigerators and facsimile
machines]) will be and remain the property of Tenant, and must be removed by
Tenant from the Premises, at Tenant's sole cost and expense, on or before the
expiration or earlier termination of this Lease. Tenant agrees to repair any
damage caused by such removal at its cost on or before the expiration or earlier
termination of this Lease.
(h) REMOVAL OF ALTERATIONS. If Tenant fails to remove by the expiration or
earlier termination of this Lease all of its personal property, or any
Alterations identified by Landlord for removal, Landlord may, at its option,
treat such failure as a hold-over pursuant to Subparagraph 11(b) above, and/or
Landlord may (without liability to Tenant for loss thereof) treat such personal
property and/or Alterations as abandoned and, at Tenant's sole cost and expense,
and in addition to Landlord's other rights and remedies under this Lease, at law
or in equity: (a) remove and store such items; and/or (b) upon ten (10) days
prior notice to Tenant, sell, discard or otherwise dispose of all or any such
items at private or public sale for such price as Landlord may obtain or by
other commercially reasonable means. Tenant shall be liable for all costs of
disposition of Tenant's abandoned property and Landlord shall have no liability
to Tenant with respect to any such abandoned property. Landlord agrees to apply
the proceeds of any sale of any such property to any amounts due to Landlord
under this Lease from Tenant (including Landlord's attorneys' fees and other
costs incurred in the removal, storage and/or sale of such items), with any
remainder to be paid to Tenant.
14. REPAIRS.
(a) LANDLORD'S OBLIGATIONS. Landlord agrees to 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 (i) attributable to items
installed in Tenant's Premises which are above standard interior improvements
(such as, for example, custom lighting, special HVAC and/or electrical panels or
systems, kitchen or restroom facilities and appliances constructed or installed
within Tenant's Premises) or (ii) 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 will pay to Landlord, as additional rent, the reasonable
cost of such maintenance and repairs. Landlord will not be liable for any
failure to make any such repairs or to perform any maintenance unless such
failure 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 20, Tenant will not be entitled to any abatement of rent
and Landlord will not have any liability 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
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or to fixtures, appurtenances and equipment therein. Tenant waives the
right to make repairs at Landlord's expense under any law, statute, ordinance,
rule, regulation, order or ruling (including, without limitation, to the extent
the Premises are located in California, the provisions of California Civil Code
Sections 1941 and 1942 and any successor statutes or laws of a similar nature).
(b) TENANT'S OBLIGATIONS. Tenant agrees to keep, maintain and preserve the
Premises in first class condition and repair and, when and if needed, at
Tenant's sole cost and expense, to make all repairs to the Premises and every
part thereof. Any such maintenance and repairs will be performed by such
contractor or contractors as Tenant may choose from an approved list to be
submitted by Landlord. Tenant agrees to pay all costs and expenses incurred in
such maintenance and repair within thirty (30) days after billing by Landlord or
such contractor or contractors. Tenant agrees to cause any mechanics' liens or
other liens arising as a result of work performed by Tenant or at Tenant's
direction to be eliminated as provided in Paragraph 15 below. Except as provided
in Subparagraph 14(a) above, Landlord has no obligation to alter, remodel,
improve, repair, decorate or paint the Premises or any part thereof.
(c) TENANT'S FAILURE TO REPAIR. If Tenant refuses or neglects to repair and
maintain the Premises properly as required hereunder to the reasonable
satisfaction of Landlord, Landlord, at any time following ten (10) days from the
date on which Landlord makes a written demand on Tenant to effect such repair
and maintenance, may enter upon the Premises and make such repairs and/or
maintenance, and upon completion thereof, Tenant agrees to pay to Landlord as
additional rent, Landlord's costs for making such repairs plus an amount not to
exceed ten percent (10%) of such costs for overhead, within thirty (30) days of
receipt from Landlord of a written itemized xxxx therefor. Any amounts not
reimbursed by Tenant within such thirty (30) day period will bear interest at
the Interest Rate until paid by Tenant.
15. LIENS. Tenant agrees not to 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. At Landlord's
request, Tenant agrees to provide Landlord with enforceable, conditional and
final lien releases (or other evidence reasonably requested by Landlord to
demonstrate protection from liens) from all persons furnishing labor and/or
materials at the Premises. Landlord will 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 will, at its sole cost, promptly 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 will
be deemed a material breach by Tenant under this Lease without the benefit of
any additional notice or cure period described in Paragraph 22 below, and
Landlord may, without waiving its rights and remedies based on such breach, and
without releasing Tenant from any of its obligations, cause such liens to be
released by any means it shall deem proper, including payment in satisfaction of
the claims giving rise to such liens. Tenant agrees to pay to Landlord within
thirty (30) 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.
16. ENTRY BY LANDLORD. Landlord and its employees and agents will at all times
have the right to enter the Premises to inspect the same, to supply janitorial
service and any other service to be provided by Landlord to Tenant hereunder, to
show the Premises to prospective purchasers or tenants, to post notices of
nonresponsibility, and/or to repair the Premises as permitted or required by
this Lease. In exercising such entry rights, Landlord will endeavor to
minimize, as reasonably practicable, the interference with Tenant's business,
and will provide Tenant with reasonable advance notice of any such entry (except
in emergency situations). 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. Landlord will at all times have and
retain a key with which to unlock all doors in the Premises, excluding Tenant's
vaults and safes. Landlord will have the right to use any and all means which
Landlord may reasonably 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, will not be construed or deemed to be a
forcible or unlawful entry into the Premises, or an eviction of Tenant from the
Premises. Landlord will not be liable to Tenant for any damages or losses for
any entry by Landlord.
17. UTILITIES AND SERVICES. Throughout the Term of the Lease so long as the
Premises are occupied, 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 "F", subject to the conditions and in
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accordance with the standards set forth therein. Landlord may require Tenant
from time to time to provide Landlord with a list of Tenant's employees and/or
agents which are authorized by Tenant to subscribe on behalf of Tenant for any
additional services which may be provided by Landlord. Any such additional
services will be provided to Tenant at Tenant's cost. Landlord will not be
liable to Tenant for any failure to furnish any of the foregoing utilities and
services if such failure is caused by all or any of the following: (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 or inaction; (iv) inability despite the exercise of
reasonable diligence to obtain electricity, water or fuel; or (v) any other
cause beyond Landlord's reasonable control. In addition, in the event of any
stoppage or interruption of services or utilities, Tenant shall not be entitled
to any abatement or reduction of rent (except as expressly provided in
Subparagraphs 20(f) or 21(b) if such failure results from a damage or taking
described therein), no eviction of Tenant will result from such failure and
Tenant will 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 agrees to diligently attempt to resume service
promptly. If Tenant requires or utilizes more water or electrical power than is
considered reasonable or normal by Landlord, Landlord may at its option require
Tenant to pay, as additional rent, the cost, as fairly determined by Landlord,
incurred by such extraordinary usage and/or Landlord may install separate
meter(s) for the Premises, at Tenant's sole expense, and Tenant agrees
thereafter to pay all charges of the utility providing service and Landlord will
make an appropriate adjustment to Tenant's Operating Expenses calculation to
account for the fact Tenant is directly paying such metered charges, provided
Tenant will remain obligated to pay its proportionate share of Operating
Expenses subject to such adjustment. Notwithstanding anything in this Lease,
if, as a result of the negligent acts or omissions of Landlord or its agents,
contractors or employees, for more than five (5) consecutive business days
following written notice to Landlord, there is no elevator service to the
Premises, or no HVAC or electricity to the Premises, or such an interruption of
other essential utilities and building services, such as fire protection or
water, so that any portion of the Premises cannot be and is not used by Tenant,
in Tenant's judgment reasonably exercised, then Tenant's rent shall thereafter
be abated until the Premises are again usable by Tenant in proportion to the
extent
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to which Tenant's use of the Premises is interfered with; provided, however,
that if Landlord is diligently pursuing the repair of such utilities or services
and Landlord provides substitute services reasonably suitable for Tenant's
purposes, as for example, bringing in portable air-conditioning equipment, then
there shall not be an abatement of rent. This paragraph shall not apply in case
of damage to, or destruction of, the Building, which shall be governed by a
separate provision of this Lease. Notwithstanding any of the foregoing to the
contrary, Tenant may not xxxxx rent if Landlord disputes Tenant's right to xxxxx
or the amount of such abatement, until and to the extent the arbitrator provides
that Tenant may do so in accordance with and pursuant to the terms of Paragraph
50 hereof.
18. ASSUMPTION OF RISK AND INDEMNIFICATION.
(a) ASSUMPTION OF RISK. Tenant, as a material part of the consideration to
Landlord, hereby agrees that neither Landlord nor any Landlord Indemnified
Parties (as defined in Subparagraph 8(c) above) will be liable to Tenant for,
and Tenant expressly assumes the risk of and waives any and all claims it may
have against Landlord or any Landlord Indemnified Parties with respect to, (i)
any and all damage to property or injury to persons in, upon or about the
Premises, the Building or the Development resulting from any act or omission
(except for the grossly negligent or intentionally wrongful act or omission) of
Landlord, (ii) any such damage caused by other tenants or persons in or about
the Building or the Development, or caused by quasi-public work, (iii) any
damage to property entrusted to employees of the Building, (iv) any loss of or
damage to property by theft or otherwise, or (v) any injury or damage to persons
or property resulting from any casualty, explosion, falling plaster or other
masonry or glass, steam, gas, electricity, water or rain which may leak from any
part of the Building or any other portion of the Development or from the pipes,
appliances or plumbing works therein or from the roof, street or subsurface or
from any other place, or resulting from dampness. Notwithstanding anything to
the contrary contained in this Lease, neither Landlord nor any Landlord
Indemnified Parties will be liable for consequential damages arising out of any
loss of the use of the Premises or any equipment or facilities therein by Tenant
or any Tenant Parties or for interference with light or other incorporeal
hereditaments. Tenant agrees to give prompt notice to Landlord in case of fire
or accidents in the Premises or the Building, or of defects therein or in the
fixtures or equipment.
(b) INDEMNIFICATION. Tenant will be liable for, and agrees, to the maximum
extent permissible under applicable law, to promptly indemnify, protect, defend
and hold harmless Landlord and all Landlord Indemnified Parties, from and
against, any and all claims, damages, judgments, suits, causes of action,
losses, liabilities, penalties, fines, expenses and costs, including attorneys'
fees and court costs (collectively, "Indemnified Claims"), arising or resulting
from (i) any act or omission of Tenant or any Tenant Parties (as defined in
Subparagraph 8(c) above); (ii) the use of the Premises and Common Areas and
conduct of Tenant's business by Tenant or any Tenant Parties, or any other
activity, work or thing done, permitted or suffered by Tenant or any Tenant
Parties, in or about the Premises, the Building or elsewhere within the
Development; and/or (iii) any default by Tenant of any obligations on Tenant's
part to be performed under the terms of this Lease. In case any action or
proceeding is brought against Landlord or any Landlord Indemnified Parties by
reason of any such Indemnified Claims, Tenant, upon notice from Landlord, agrees
to promptly defend the same at Tenant's sole cost and expense by counsel
approved in writing by Landlord, which approval Landlord will not unreasonably
withhold.
(c) SURVIVAL; NO RELEASE OF INSURERS. Tenant's indemnification obligations under
Subparagraph 18(b) will survive the expiration or earlier termination of this
Lease. Tenant's covenants, agreements and indemnification obligation in
Subparagraphs 18(a) and 18(b) above, are not intended to and will not relieve
any insurance carrier of its obligations under policies required to be carried
by Tenant pursuant to the provisions of this Lease.
(d) LANDLORD INDEMNITY. Notwithstanding anything to the contrary contained in
Paragraph 18 of, or elsewhere in, this Lease, Tenant shall not be required to
indemnify and hold Landlord harmless from any Indemnified Claims resulting from
the negligence or willful misconduct of Landlord or Landlord's agents, employees
or contractors (except for damage to Tenant's personal property, fixtures,
furniture and equipment in the Premises, to the extent Tenant is required to
obtain insurance coverage therefor pursuant to the terms of this Lease), and,
subject to the limitations contained in (i) the second to the last sentence of
Paragraph 18(a) of this Lease, and (ii) Paragraph 35 of this Lease, Landlord
agrees to indemnify and hold Tenant harmless from and against any and all such
Indemnified Claims. Landlord's indemnification obligations under this paragraph
will survive the expiration or earlier termination of this Lease and are not
intended to and will not relieve any insurance carrier of its obligations under
policies required to be carried by Landlord and/or by Tenant pursuant to the
provisions of this Lease.
19. INSURANCE.
(a) TENANT'S INSURANCE. On or before the earlier to occur of (i) the
Commencement Date, or (ii) the date Tenant commences any work of any type in the
Premises pursuant to this Lease (which may be prior to the Commencement Date),
and continuing throughout the entire Term hereof and any other period of
occupancy, Tenant agrees to keep in full force and effect, at its sole cost and
expense, the following insurance:
(i) "All Risks" property insurance including at least the following perils: fire
and extended coverage, smoke damage, vandalism, malicious mischief, sprinkler
leakage (including earthquake sprinkler leakage). This insurance policy must be
upon all property owned by Tenant, for which Tenant is legally liable, or which
is installed at Tenant's expense, and which is located in the Building
including, without limitation, any Tenant Improvements which satisfy the
foregoing qualification and any Alterations, and all furniture, fittings,
installations, fixtures and any other personal property of Tenant, in an amount
not less than the full replacement cost thereof. If there is a dispute as to
full replacement cost, the decision of Landlord or any mortgagee of Landlord
will be presumptive.
(ii) One (1) year insurance coverage for business interruption and loss of
income and extra expense insuring the same perils described in Subparagraph
19(a)(i) above, in such amounts as will reimburse Tenant for any direct or
indirect loss of earnings attributable to any such perils including prevention
of access to the Premises, Tenant's parking areas or the Building as a result of
any such perils.
(iii) Commercial General Liability Insurance or Comprehensive General Liability
Insurance (on an occurrence form) insuring bodily injury, personal injury and
property damage including the following divisions and extensions of coverage:
Premises and Operations; Owners and Contractors protective; blanket contractual
liability (including coverage for Tenant's indemnity
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obligations under this Lease); products and completed operations; liquor
liability (if Tenant serves alcohol on the Premises); and fire and water damage
legal liability in an amount sufficient to cover the replacement value of the
Premises, including Tenant Improvements, that are rented under the terms of this
Lease. Such insurance must have the following minimum limits of liability:
bodily injury, personal injury and property damage - $3,000,000 each occurrence,
provided that if liability coverage is provided by a Commercial General
Liability policy the general aggregate limit shall apply separately and in total
to this location only (per location general aggregate), and provided further,
such minimum limits of liability may be adjusted from year to year to reflect
increases in coverages as recommended by Landlord's insurance carrier as being
prudent and commercially reasonable for tenants of first class office buildings
comparable to the Building, rounded to the nearest five hundred thousand
dollars.
(iv) Comprehensive Automobile Liability insuring bodily injury and property
damage arising from all owned, non-owned and hired vehicles, if any, with
minimum limits of liability of $1,000,000 per accident.
(v) Worker's Compensation as required by the laws of the State with the
following minimum limits of liability: Coverage A - statutory benefits;
Coverage B - $1,000,000 per accident and disease.
(vi) Any other form or forms of insurance as Tenant or Landlord or any
mortgagees of Landlord may reasonably require from time to time in form, in
amounts, and for insurance risks against which, a prudent tenant would protect
itself, but only to the extent coverage for such risks and amounts are available
in the insurance market at commercially acceptable rates. Landlord makes no
representation that the limits of liability required to be carried by Tenant
under the terms of this Lease are adequate to protect Tenant's interests and
Tenant should obtain such additional insurance or increased liability limits as
Tenant deems appropriate.
(b) SUPPLEMENTAL TENANT INSURANCE REQUIREMENTS.
(i) All policies must be in a form reasonably satisfactory to Landlord and
issued by an insurer admitted to do business in the State.
(ii) All policies must be issued by insurers with a policyholder rating of "A"
and a financial rating of "X" in the most recent version of Best's Key Rating
Guide.
(iii) All policies must contain a requirement to notify Landlord (and
Landlord's property manager and any mortgagees or ground lessors of Landlord who
are named as additional insureds, if any) in writing not less than thirty (30)
days prior to any material change, reduction in coverage, cancellation or other
termination thereof. Tenant agrees to deliver to Landlord, as soon as
practicable after placing the required insurance, but in any event within the
time frame specified in Subparagraph 19(a) above, certificate(s) of insurance
and/or if required by Landlord, certified copies of each policy evidencing the
existence of such insurance and Tenant's compliance with the provisions of this
Paragraph 19. Tenant agrees to cause replacement policies or certificates to be
delivered to Landlord not less than thirty (30) days prior to the expiration of
any such policy or policies. If any such initial or replacement policies or
certificates are not furnished within the time(s) specified herein, Tenant will
be deemed to be in material default under this Lease without the benefit of any
additional notice or cure period provided in Subparagraph 22(a)(iii) below, and
Landlord will have the right, but not the obligation, to procure such insurance
as Landlord deems necessary to protect Landlord's interests at Tenant's expense.
If Landlord obtains any insurance that is the responsibility of Tenant under
this Xxxxxxxxx 00, Xxxxxxxx agrees to 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 and Tenant agrees to promptly reimburse
Landlord for such costs as additional rent.
(iv) General Liability and Automobile Liability policies under Subparagraphs
19(a)(iii) and (iv) must name Landlord and Landlord's property manager (and at
Landlord's request, Landlord's mortgagees and ground lessors of which Tenant has
been informed in writing) as additional insureds and must also contain a
provision that the insurance afforded by such policy is primary insurance and
any insurance carried by Landlord and Landlord's property manager or Landlord's
mortgagees or ground lessors, if any, will be excess over and non-contributing
with Tenant's insurance.
(c) TENANT'S USE. 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 or the Development Common Areas. 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 or the Development
Common Areas or results in the need for Landlord to maintain special or
additional insurance, Tenant agrees to pay Landlord the cost of any such
increase in premiums or special or additional coverage as additional rent within
thirty (30) days after being billed therefor 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, the
Development Common Areas or the Tenant Improvements showing the various
components of such rate, will be conclusive evidence of the several items and
charges which make up such rate. Tenant agrees to promptly comply with all
reasonable requirements of the insurance authority or any present or future
insurer relating to the Premises.
(d) CANCELLATION OF LANDLORD'S POLICIES. If any of Landlord's insurance policies
are cancelled or cancellation is threatened or the coverage 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 to such cancellation, threatened cancellation, reduction of
coverage, threatened reduction of coverage, increase in premiums, or threatened
increase in premiums, within forty-eight (48) hours after notice thereof, Tenant
will be deemed to be in material default of this Lease and 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 Landlord the reasonable
costs of such remedy as additional rent. If Landlord is unable, or elects not to
remedy such condition, then Landlord will have all of the remedies provided for
in this Lease in the event of a default by Tenant.
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(e) WAIVER OF SUBROGATION. Tenant's property insurance shall contain a clause
whereby the insurer waives all rights of recovery by way of subrogation against
Landlord. Tenant shall also obtain and furnish evidence to Landlord of the
waiver by Tenant's worker's compensation insurance carrier of all rights of
recovery by way of subrogation against Landlord.
20. DAMAGE OR DESTRUCTION.
(a) PARTIAL DESTRUCTION. If the Premises or the Building are damaged by fire or
other casualty to an extent not exceeding twenty-five percent (25%) of the full
replacement cost thereof, and Landlord's contractor reasonably estimates in a
writing delivered to Landlord and Tenant that the damage thereto may be
repaired, reconstructed or restored to substantially its condition immediately
prior to such damage within one hundred fifty (150) days from the date of such
casualty, and Landlord will receive insurance proceeds sufficient to cover the
costs of such repairs, reconstruction and restoration (including proceeds from
Tenant and/or Tenant's insurance which Tenant is required to deliver to Landlord
pursuant to Subparagraph 20(e) below to cover Tenant's obligation for the costs
of repair, reconstruction and restoration of any portion of the Tenant
Improvements and any Alterations for which Tenant is responsible under this
Lease), then Landlord agrees to commence and proceed diligently with the work of
repair, reconstruction and restoration and this Lease will continue in full
force and effect.
(b) SUBSTANTIAL DESTRUCTION. Any damage or destruction to the Premises or the
Building which Landlord is not obligated to repair pursuant to Subparagraph
20(a) above will be deemed a substantial destruction. In the event of a
substantial destruction, Landlord may elect to either (i) repair, reconstruct
and restore the portion of the Building or the Premises damaged by such
casualty, in which case this Lease will continue in full force and effect,
subject to Tenant's termination right contained in Subparagraph 20(d) below; or
(ii) terminate this Lease effective as of the date which is thirty (30) days
after Tenant's receipt of Landlord's election to so terminate.
(c) NOTICE. Under any of the conditions of Subparagraph 20(a) or (b) above,
Landlord agrees to give written notice to Tenant of its intention to repair or
terminate, as permitted in such paragraphs, within the earlier of forty-five
(45) days after the occurrence of such casualty, or fifteen (15) days after
Landlord's receipt of the estimate from Landlord's contractor (the applicable
time period to be referred to herein as the "Notice Period").
(d) TENANT'S TERMINATION RIGHTS. If Landlord elects to repair, reconstruct and
restore pursuant to Subparagraph 20(b)(i) hereinabove, and if Landlord's
contractor estimates that as a result of such damage, Tenant cannot be given
reasonable use of and access to the Premises within two hundred seventy (270)
days after the date of such damage, then Tenant may terminate this Lease
effective upon delivery of written notice to Landlord within ten (10) days after
Landlord delivers notice to Tenant of its election to so repair, reconstruct or
restore.
(e) TENANT'S COSTS AND INSURANCE PROCEEDS. In the event of any damage or
destruction of all or any part of the Premises, Tenant agrees to immediately (i)
notify Landlord thereof, and (ii) deliver to Landlord all property insurance
proceeds received by Tenant with respect to any Tenant Improvements installed by
or at the cost of Tenant and any Alterations, but excluding proceeds for
Tenant's furniture, fixtures, equipment and other personal property, whether or
not this Lease is terminated as permitted in this Paragraph 20, and Tenant
hereby assigns to Landlord all rights to receive such insurance proceeds. If,
for any reason (including Tenant's failure to obtain insurance for the full
replacement cost of any Tenant Improvements installed by or at the cost of
Tenant and any Alterations from any and all casualties), Tenant fails to receive
insurance proceeds covering the full replacement cost of any Tenant Improvements
installed by or at the cost of Tenant and any Alterations which are damaged,
Tenant will be deemed to have self-insured the replacement cost of such items,
and upon any damage or destruction thereto, Tenant agrees to immediately pay to
Landlord the full replacement cost of such items, less any insurance proceeds
actually received by Landlord from Landlord's or Tenant's insurance with respect
to such items.
(f) ABATEMENT OF RENT. In the event of any damage, repair, reconstruction and/or
restoration described in this Paragraph 20, rent will be abated or reduced, as
the case may be, from the date of such casualty, in proportion to the degree to
which Tenant's use of the Premises is impaired during such period of repair
until such use is restored. Except for abatement of rent as provided
hereinabove, Tenant will not be entitled to any compensation or damages for loss
of, or interference with, Tenant's business or use or access of all or any part
of the Premises or for lost profits or any other consequential damages of any
kind or nature, which result from any such damage, repair, reconstruction or
restoration.
(g) INABILITY TO COMPLETE. Notwithstanding anything to the contrary contained in
this Paragraph 20, if Landlord is obligated or elects to repair, reconstruct
and/or restore the damaged portion of the Building or the Premises pursuant to
Subparagraph 20(a) or 20(b)(i) above, but is delayed from completing such
repair, reconstruction and/or restoration beyond the date which is sixty (60)
days after the date estimated by Landlord's contractor for completion thereof by
reason of any causes (other than delays caused by Tenant, its subtenants,
employees, agents or contractors or delays which are beyond the reasonable
control of Landlord as described in Paragraph 33), then either Landlord or
Tenant may elect to terminate this Lease upon ten (10) days prior written notice
given to the other after the expiration of such sixty (60) day period.
(h) DAMAGE NEAR END OF TERM. Landlord and Tenant shall each have the right to
terminate this Lease if any damage to the Premises occurs during the last twelve
(12) months of the Term of this Lease where Landlord's contractor estimates in a
writing delivered to Landlord and Tenant that the repair, reconstruction or
restoration of such damage cannot be completed within sixty (60) days after the
date of such casualty. If either party desires to terminate this Lease under
this Subparagraph (h), it shall provide written notice to the other party of
such election within ten (10) days after receipt of Landlord's contractor's
repair estimates.
(i) WAIVER OF TERMINATION RIGHT. Landlord and Tenant agree that the foregoing
provisions of this Paragraph 20 are to govern their respective rights and
obligations in the event of any damage or destruction and supersede and are in
lieu of the provisions of any applicable law, statute, ordinance, rule,
regulation, order or ruling now or hereafter in force which provide remedies for
damage or destruction of leased premises (including, without limitation, to the
extent the Premises are located in California, the provisions of California
Civil Code Section 1932, Subsection 2, and Section 1933, Subsection 4 and any
successor statute or laws of a similar nature).
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(j) TERMINATION. Upon any termination of this Lease under any of the provisions
of this Paragraph 20, the parties will be released without further obligation to
the other from the date possession of the Premises is surrendered to Landlord
except for items which have accrued and are unpaid as of the date of termination
and matters which are to survive any termination of this Lease as provided in
this Lease.
21. EMINENT DOMAIN.
(a) SUBSTANTIAL TAKING. If the whole of the Premises, or such part thereof as
shall substantially interfere with Tenant's use and occupancy of the Premises,
as contemplated by this Lease, is 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
will have the right to terminate this Lease effective as of the date possession
is required to be surrendered to such authority.
(b) PARTIAL TAKING; ABATEMENT OF RENT. In the event of a taking of a portion of
the Premises which does not substantially interfere with Tenant's use and
occupancy of the Premises, then, neither party will have the right to terminate
this Lease and Landlord will thereafter proceed to make a functional unit of the
remaining portion of the Premises (but only to the extent Landlord receives
proceeds therefor from the condemning authority), and rent will be abated with
respect to the part of the Premises which Tenant is deprived of on account of
such taking. Notwithstanding the immediately preceding sentence to the contrary,
if any part of the Building or the Development is taken (whether or not such
taking substantially interferes with Tenant's use of the Premises), Landlord may
terminate this Lease upon thirty (30) days prior written notice to Tenant if
Landlord also terminates the leases of the other tenants of the Building which
are leasing comparably sized space for comparable lease terms.
(c) CONDEMNATION AWARD. In connection with any taking of the Premises or the
Building, Landlord will be entitled to receive the entire amount of any award
which may be made or given in such taking or condemnation, without deduction or
apportionment for any estate or interest of Tenant, it being expressly
understood and agreed by Tenant that no portion of any such award will be
allowed or paid to Tenant for any so-called bonus or excess value of this Lease,
and such bonus or excess value will be the sole property of Landlord. Tenant
agrees not to assert any claim against Landlord or the taking authority for any
compensation because of such taking (including any claim for bonus or excess
value of this Lease); provided, however, if any portion of the Premises is
taken, Tenant will have the right to recover from the condemning authority (but
not from Landlord) any compensation as may be separately awarded or recoverable
by Tenant for the taking of Tenant's furniture, fixtures, equipment and other
personal property within the Premises, for Tenant's relocation expenses, and for
any loss of goodwill or other damage to Tenant's business by reason of such
taking.
(d) TEMPORARY TAKING. In the event of taking of the Premises or any part thereof
for temporary use, (i) this Lease will remain unaffected thereby and rent will
xxxxx for the duration of the taking in proportion to the extent Tenant's use of
the Premises is interfered with, and (ii) Landlord will be entitled to receive
such portion or portions of any award made for such use provided that if such
taking remains in force at the expiration or earlier termination of this Lease,
Tenant will then pay to Landlord a sum equal to the reasonable cost of
performing Tenant's obligations under Paragraph 11 with respect to surrender of
the Premises and upon such payment Tenant will be excused from such obligations.
For purpose of this Subparagraph 21(d), a temporary taking shall be defined as a
taking for a period of ninety (90) days or less.
22. DEFAULTS AND REMEDIES.
(a) DEFAULTS. The occurrence of any one or more of the following events will
be deemed a default by Tenant:
(i) The abandonment of the Premises by Tenant, which for purposes of this Lease
means any absence by Tenant from the Premises for five (5) business days or
longer while in default of any other provision of this Lease and, with respect
to ground floor space only, any vacation of the Premises, which for purposes of
this Lease means any absence by Tenant from the Premises for sixty (60) days or
longer whether or not Tenant is in default under 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 continues for a period of three (3) days after written notice
thereof from Landlord to Tenant; provided, however, that any such notice will be
in lieu of, and not in addition to, any notice required under applicable law
(including, without limitation, to the extent the Premises are located in
California, the provisions of California Code of Civil Procedure Section 1161
regarding unlawful detainer actions or any successor statute or law of a similar
nature).
(iii) The failure by Tenant to observe or perform any of the express or implied
covenants or provisions of this Lease to be observed or performed by Tenant,
other than as specified in Subparagraph 22(a)(i) or (ii) above, where such
failure continues (where no other period of time is expressly provided) for a
period of ten (10) days after written notice thereof from Landlord to Tenant.
The provisions of any such notice will be in lieu of, and not in addition to,
any notice required under applicable law (including, without limitation, to the
extent the Premises are located in California, California Code of Civil
Procedure Section 1161 regarding unlawful detainer actions and any successor
statute or similar law). If the nature of Tenant's default is such that more
than ten (10) days are reasonably required for its cure, then Tenant will not be
deemed to be in default if Tenant, with Landlord's concurrence, commences such
cure within such ten (10) day period and thereafter diligently prosecutes such
cure to completion.
(iv) (A) The making by Tenant of any general assignment for the benefit of
creditors; (B) the filing by or against Tenant of a petition to have Tenant
adjudged a bankrupt or a petition for reorganization or 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); (C) 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 thirty (30) days; or (D) 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.
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(b) LANDLORD'S REMEDIES; TERMINATION. In the event of any default by Tenant,
addition to any other remedies available to Landlord at law or in equity under
applicable law (including, without limitation, to the extent the Premises are
located in California, the remedies of Civil Code Section 1951.4 and any
successor statute or similar law, providing that Landlord may continue this
Lease in effect after Tenant's breach and abandonment and recover rent as it
becomes due, if Tenant has the right to sublet or assign, subject only to
reasonable restrictions), Landlord will have the immediate right and option to
terminate this Lease and all rights of Tenant hereunder. If Landlord elects to
terminate this Lease then, to the extent permitted under applicable law,
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 termination until the time of award exceeds the amount of
such rent loss that Tenant proves could have been reasonably avoided; plus (iii)
the worth at the time of award of the amount by which the unpaid rent for the
balance of the Term after the time of award exceeds the amount of such rent 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 its obligations under this Lease or which, in the
ordinary course of things, results therefrom including, but not limited to:
attorneys' fees and costs; brokers' commissions; the costs of refurbishment,
alterations, renovation and repair of the Premises, and removal (including the
repair of any damage caused by such removal) and storage (or disposal) of
Tenant's personal property, equipment, fixtures, Alterations, the Tenant
Improvements and any other items which Tenant is required under this Lease to
remove but does not remove, as well as the unamortized value of any free rent,
reduced rent, free parking, reduced rate parking and any Tenant Improvement
Allowance or other costs or economic concessions provided, paid, granted or
incurred by Landlord pursuant to this Lease. The unamortized value of such
concessions shall be determined by taking the total value of such concessions
and multiplying such value by a fraction, the numerator of which is the number
of months of the Lease Term not yet elapsed as of the date on which the Lease is
terminated, and the denominator of which is the total number of months of the
Lease Term. As used in Subparagraphs 22(b)(i) and (ii) above, the "worth at the
time of award" is computed by allowing interest at the Interest Rate. As used in
Subparagraph 22(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) LANDLORD'S REMEDIES; RE-ENTRY RIGHTS. In the event of any default by Tenant,
in addition to any other remedies available to Landlord under this Lease, at law
or in equity, Landlord will 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 property may be removed and stored in a public warehouse or
elsewhere and/or disposed of at the sole cost and expense of and for the account
of Tenant in accordance with the provisions of Subparagraph 13(h) of this Lease
or any other procedures permitted by applicable law. No re-entry or taking
possession of the Premises by Landlord pursuant to this Subparagraph 22(c) will
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) LANDLORD'S REMEDIES; RE-LETTING. In the event of the vacation or abandonment
of the Premises by Tenant or in the event that Landlord elects to re-enter the
Premises or takes 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, 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 on terms and conditions as Landlord in its sole and absolute
discretion may deem advisable with the right to make alterations and repairs to
the Premises in connection with such reletting. If Landlord elects to relet the
Premises, then rents received by Landlord from such reletting will 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
incurred in connection with such reletting; fourth, to the payment of rent due
and unpaid hereunder and the residue, if any, will 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 rents 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 agrees to pay
such deficiency to Landlord immediately upon demand therefor by Landlord. Such
deficiency will be calculated and paid monthly.
(e) LANDLORD'S REMEDIES; PERFORMANCE FOR TENANT. All covenants and agreements to
be performed by Tenant under any of the terms of this Lease are to be performed
by Tenant at Tenant's sole cost and expense and without any abatement of rent.
If Tenant fails to pay any sum of money owed to any party other than Landlord,
for which it is liable under this Lease, or if Tenant fails to perform any other
act on its part to be performed hereunder, and such failure continues for ten
(10) days after notice thereof by Landlord, Landlord may, without waiving or
releasing Tenant from its obligations, but shall not be obligated to, make any
such payment or perform any such other act to be made or performed by Tenant.
Tenant agrees to reimburse Landlord upon demand for all sums so paid by Landlord
and all necessary incidental costs, together with interest thereon at the
Interest Rate, from the date of such payment by Landlord until reimbursed by
Tenant. This remedy shall be in addition to any other right or remedy of
Landlord set forth in this Paragraph 22.
(f) LATE PAYMENT. If Tenant fails to pay any installment of rent within five
business (5) days of when due or if Tenant fails to make any other payment for
which Tenant is obligated under this Lease within five business (5) days of when
due, such late amount will accrue interest at the Interest Rate and Tenant
agrees to pay Landlord as additional rent such interest on such amount from the
date such amount becomes due until such amount is paid. In addition, Tenant
agrees to pay to Landlord concurrently with such late payment amount, as
additional rent, a late charge equal to five percent (5%) of the amount due to
compensate Landlord for the extra costs Landlord will incur as a result of such
late payment. The parties agree that (i) it would be impractical and extremely
difficult to fix the actual damage Landlord will suffer in the event of Tenant's
late payment, (ii) such interest and late charge represents a fair and
reasonable estimate of the detriment that Landlord will suffer by reason of late
payment by Tenant, and (iii) the payment of interest and late charges are
distinct and separate in that the payment of interest is to compensate Landlord
for the use of Landlord's money by Tenant, while the payment of late charges is
to compensate Landlord for Landlord's processing, administrative and other costs
incurred by Landlord as a result of Tenant's delinquent payments. Acceptance of
any such interest and late charge will 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. If Tenant incurs a
late charge more than three (3) times in any period of twelve (12) months during
the Lease Term, then, notwithstanding that Tenant cures the late payments for
which such late charges are imposed, Landlord will have the right to require
Tenant thereafter to pay all installments of Monthly Base Rent quarterly in
advance throughout the remainder of the Lease Term.
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(g) RIGHTS AND REMEDIES CUMULATIVE. All rights, options and remedies of
Landlord contained in this Lease will be construed and held to be cumulative,
and no one of them will 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 or in equity, whether or not stated in this Lease.
Nothing in this Paragraph 22 will be deemed to limit or otherwise affect
Tenant's indemnification of Landlord pursuant to any provision of this Lease.
23. LANDLORD'S DEFAULT. Landlord will not be in default in the performance of
any obligation required to be performed by Landlord under this Lease unless
Landlord fails to perform such obligation within thirty (30) days after the
receipt of written notice from Tenant specifying in detail Landlord's failure to
perform; provided however, that if the nature of Landlord's obligation is such
that more than thirty (30) days are required for performance, then Landlord will
not be deemed in default if it commences such performance within such thirty
(30) day period and thereafter diligently pursues the same to completion. Upon
any default by Landlord, Tenant may exercise any of its rights provided at law
or in equity, subject to the limitations on liability set forth in Paragraph 35
of this Lease.
24. ASSIGNMENT AND SUBLETTING.
(a) RESTRICTION ON TRANSFER. Except as expressly provided in this Paragraph 24,
Tenant will not, either voluntarily or by operation of law, assign or encumber
this Lease or any interest herein or sublet the Premises or any part thereof, or
permit the use or occupancy of the Premises by any party other than Tenant (any
such assignment, encumbrance, sublease or the like will sometimes be referred to
as a "Transfer"), without the prior written consent of Landlord, which consent
Landlord will not unreasonably withhold.
(b) CORPORATE AND PARTNERSHIP TRANSFERS. For purposes of this Paragraph 24, if
Tenant is a corporation, partnership or other entity, any transfer, assignment,
encumbrance or hypothecation of twenty-five percent (25%) or more (individually
or in the aggregate) of any stock or other ownership interest in such entity,
and/or any transfer, assignment, hypothecation or encumbrance of any controlling
ownership or voting interest in such entity, will be deemed a Transfer and will
be subject to all of the restrictions and provisions contained in this Paragraph
24. Notwithstanding the foregoing, the immediately preceding sentence will not
apply to any transfers of stock of Tenant in connection with an initial public
offering or if Tenant is a publicly-held corporation and such stock is
transferred publicly over a recognized security exchange or over-the-counter
market.
(c) PERMITTED CONTROLLED TRANSFERS. Notwithstanding the provisions of this
Paragraph 24 to the contrary, Tenant may assign this Lease or sublet the
Premises or any portion thereof ("Permitted Transfer"), without Landlord's
consent and without extending any sublease termination option to Landlord, to
any parent, subsidiary or affiliate corporation which controls, is controlled by
or is under common control with Tenant, or to any corporation resulting from a
merger or consolidation with Tenant, or to any person or entity which acquires
all the assets of Tenant's business as a going concern, provided that: (i) at
least twenty (20) days prior to such assignment or sublease, Tenant delivers to
Landlord the financial statements and other financial and background information
of the assignee or sublessee described in Subparagraph 24(d) below; (ii) if an
assignment, the assignee assumes, in full, the obligations of Tenant under this
Lease (or if a sublease, the sublessee of a portion of the Premises or Term
assumes, in full, the obligations of Tenant with respect to such portion); (iii)
the financial net worth of the assignee or sublessee as of the time of the
proposed assignment or sublease equals or exceeds that of Tenant as of the date
of execution of this Lease; (iv) Tenant remains fully liable under this Lease;
and (v) the use of the Premises under Paragraph 8 remains unchanged.
(d) TRANSFER NOTICE. If Tenant desires to effect a Transfer, then at least
twenty (20) days prior to the date when Tenant desires the Transfer to be
effective (the "Transfer Date"), Tenant agrees to give Landlord a notice (the
"Transfer Notice"), stating the name, address and business of the proposed
assignee, sublessee or other transferee (sometimes referred to hereinafter as
"Transferee"), reasonable information (including references) concerning the
character, ownership, and financial condition of the proposed Transferee, the
Transfer Date, any ownership or commercial relationship between Tenant and the
proposed Transferee, and the consideration and all other material terms and
conditions of the proposed Transfer, all in such detail as Landlord may
reasonably require. If Landlord reasonably requests additional detail, the
Transfer Notice will not be deemed to have been received until Landlord receives
such additional detail, and Landlord may withhold consent to any Transfer until
such information is provided to it.
(e) LANDLORD'S OPTIONS. Within fifteen (15) days of Landlord's receipt of any
Transfer Notice, and any additional information requested by Landlord concerning
the proposed Transferee's financial responsibility, Landlord will elect to do
one of the following (i) consent to the proposed Transfer; (ii) refuse such
consent, which refusal shall be on reasonable grounds including, without
limitation, those set forth in Subparagraph 24(f) below; or (iii) terminate this
Lease as to all or such portion of the Premises which is proposed to be sublet
or assigned and recapture all or such portion of the Premises for reletting by
Landlord.
(f) REASONABLE DISAPPROVAL. Landlord and Tenant hereby acknowledge that
Landlord's disapproval of any proposed Transfer pursuant to Subparagraph 24(e)
will be deemed reasonably withheld if based upon any reasonable factor,
including, without limitation, any or all of the following factors: (i)
intentionally omitted; (ii) the proposed Transferee is a governmental entity;
(iii) the portion of the Premises to be sublet or assigned is irregular in shape
with inadequate means of ingress and egress; (iv) the use of the Premises by the
Transferee (A) is not permitted by the use provisions in Paragraph 8 hereof, (B)
violates any exclusive use granted by Landlord to another tenant in the
Building, or (C) otherwise poses a risk of increased liability to Landlord; (v)
the Transfer would likely result in a significant and inappropriate increase in
the use of the parking areas or Development Common Areas by the Transferee's
employees or visitors, and/or significantly increase the demand upon utilities
and services to be provided by Landlord to the Premises; (vi) the Transferee
does not have the financial capability to fulfill the obligations imposed by the
Transfer and this Lease; (vii) the Transferee is not in Landlord's reasonable
opinion consistent with Landlord's desired tenant mix; or (viii) the Transferee
poses a business or other economic risk which Landlord reasonably deems
unacceptable.
(g) ADDITIONAL CONDITIONS. A condition to Landlord's consent to any Transfer of
this Lease will be the delivery to Landlord of a true copy of the fully executed
instrument of assignment, sublease, transfer or hypothecation, and, in the case
of an assignment, the delivery to Landlord of an agreement executed by the
Transferee in form and substance reasonably satisfactory
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to Landlord, whereby the Transferee 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 for granting its consent to any assignment or
sublease, Landlord may require, if Tenant is in default, that the assignee or
sublessee remit directly to Landlord on a monthly basis, all monies due to
Tenant by said assignee or sublessee. As a condition to Landlord's consent to
any sublease, such sublease must 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, or 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 will attorn to Landlord, but
that nevertheless Landlord will 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 than one month's
rent.
(h) EXCESS RENT. If Landlord consents to any assignment of this Lease, Tenant
agrees to pay to Landlord, as additional rent, one-half (1/2) of all sums and
other consideration 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
agrees to instruct the assignee to pay such sums and other consideration
directly to Landlord). If for any sublease, Tenant receives rent or other
consideration, either initially or over the term of the sublease, in excess of
the rent fairly allocable to the portion of the Premises which is subleased
based on square footage, Tenant agrees to pay to Landlord as additional rent
one-half (1/2) of the excess of each such payment of rent or other consideration
received by Tenant promptly after its receipt. In calculating excess rent or
other consideration which may be payable to Landlord under this paragraph,
Tenant will be entitled to deduct commercially reasonable third party brokerage
commissions, subtenant improvements, and attorneys' fees and other amounts
reasonably and actually expended by Tenant in connection with such assignment or
subletting if acceptable written evidence of such expenditures is provided to
Landlord.
(i) TERMINATION RIGHTS.
(i) If Tenant requests Landlord's consent to any subletting of all or a portion
of the ground floor portion of Premises, or if Tenant requests Landlord's
consent to any subletting of all or a portion of the balance of the Premises (A)
during the remainder of the Sublease Year following the expiration of the
Sublease Period described in clause (ii) below, or (B) without following the
procedures set forth in clause (ii) below, then in any such event, Landlord will
have the right, as provided in Subparagraph 24(e), to terminate this Lease as to
all or such portion of the Premises which is proposed to be sublet effective as
of the date Tenant proposes to sublet; provided, however, if Landlord elects to
terminate this Lease, then within five (5) business days after receipt of such
election by Tenant, Tenant will have the right to rescind the request of
Landlord to consent to such subletting, and if Tenant timely delivers such
rescission to Landlord, then Landlord's election to terminate this Lease shall
be void.
(ii) If Tenant desires to sublease all or a portion of the balance of the
Premises, then once per twelve (12) consecutive calendar months (a "Sublease
Year") Tenant will have the right to notify Landlord of such desire (the
"Sublease Notice"), identifying in such notice the specific portions of the
balance of the Premises which Tenant desires to sublease (the "Proposed Sublease
Space"). Landlord will then have sixty (60) days following its receipt of the
Sublease Notice (the "Recapture Period") in which to elect to recapture from
Tenant all or some of the Proposed Sublease Space (the "Recapture Notice");
provided, however, if Landlord delivers to Tenant a Recapture Notice, then
within five (5) business days after receipt of such notice by Tenant, Tenant
will have the right to rescind its Sublease Notice as to the portion of the
Proposed Sublease Space which Landlord desires to recapture, and if Tenant
timely delivers such rescission to Landlord, then Landlord's Recapture Notice as
to such space shall be void. To the extent Landlord does not deliver a Recapture
Notice within the Recapture Period, Tenant will have one hundred twenty (120)
days after the expiration of the Recapture Period in which to consummate a
sublease or subleases for the Proposed Sublease Space (the "Sublease Period").
Any portion of the Proposed Sublease Space which has not been subleased within
the Sublease Period will be subject to recapture by Landlord in accordance with
the terms of clause (i) above.
(iii) Landlord's right to terminate this Lease as to less than all of the
Premises proposed to be sublet will not terminate as to any future additional
subletting as a result of Landlord's consent to a subletting of less than all of
the Premises or Landlord's failure to exercise its termination right with
respect to any subletting. Landlord will exercise its termination right
described in clause (i) above, if at all, by giving written notice to Tenant
within fifteen (15) days of receipt by Landlord of the financial responsibility
information required by this Paragraph 24. Tenant understands and acknowledges
that the option, as provided in this Paragraph 24, to terminate this Lease as to
all or such portion of the Premises which is proposed to be sublet rather than
approve the subletting of all or a portion of the Premises, is a material
inducement for Landlord's agreeing to lease the Premises to Tenant upon the
terms and conditions herein set forth. In the event of any such termination
with respect to less than all of the Premises, the cost of segregating the
recaptured space from the balance of the Premises will be paid by Tenant and
Tenant's future monetary obligations under this Lease will be reduced
proportionately on a square footage basis to correspond to the balance of the
Premises which Tenant continues to lease.
(j) NO RELEASE. No Transfer will release Tenant of Tenant's obligations under
this Lease or alter the primary liability of Tenant to pay the rent and to
perform all other obligations to be performed by Tenant hereunder. Landlord may
require that any Transferee remit directly to Landlord on a monthly basis, all
monies due Tenant by said Transferee. However, the acceptance of rent by
Landlord from any other person will not be deemed to be a waiver by Landlord of
any provision hereof. Consent by Landlord to one Transfer will not be deemed
consent to any subsequent Transfer. In the event of default by any Transferee of
Tenant or any successor of Tenant in the performance of any of the terms hereof,
Landlord may proceed directly against Tenant without the necessity of exhausting
remedies against such Transferee or successor. Landlord may consent to
subsequent assignments of this Lease or sublettings or amendments or
modifications to this Lease with assignees of Tenant, without notifying Tenant,
or any successor of Tenant, and without obtaining its or their consent thereto
and any such actions will not relieve Tenant of liability under this Lease.
(k) ADMINISTRATIVE AND ATTORNEYS' FEES. If Tenant effects a Transfer or requests
the consent of Landlord to any Transfer (whether or not such Transfer is
consummated), then, upon demand, Tenant agrees to pay Landlord a non-refundable
administrative fee of Two Hundred Fifty Dollars ($250.00), plus any reasonable
attorneys' and paralegal fees incurred by
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Landlord in connection with such Transfer or request for consent (whether
attributable to Landlord's in-house attorneys or paralegals or otherwise) not to
exceed One Hundred Dollars ($100.00) for each one thousand (1,000) rentable
square feet of area contained within the Premises or portion thereof to be
assigned or sublet. Acceptance of the Two Hundred Fifty Dollar ($250.00)
administrative fee and/or reimbursement of Landlord's attorneys' and paralegal
fees will in no event obligate Landlord to consent to any proposed Transfer.
25. 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 or beneficiary with a deed of trust
encumbering the Building and/or the Development, or any lessor of a ground or
underlying lease with respect to the Building, this Lease will be subject and
subordinate at all times to: (i) all ground leases or underlying leases which
may now exist or hereafter be executed affecting the Building; and (ii) the lien
of any mortgage or deed of trust which may now exist or hereafter be executed
for which the Building, the Development or any leases thereof, or Landlord's
interest and estate in any of said items, is specified as security.
Notwithstanding the foregoing, Landlord reserves the right to subordinate any
such ground leases or underlying leases or any such liens to this Lease. If any
such ground lease or underlying lease terminates for any reason or any such
mortgage or deed of trust is foreclosed or a conveyance in lieu of foreclosure
is made for any reason, at the election of Landlord's successor in interest,
Tenant agrees to attorn to and become the tenant of such successor in which
event Tenant's right to possession of the Premises will not be disturbed as long
as Tenant is not in default under this Lease. Tenant hereby waives its rights
under any law which gives or purports to give Tenant any right to terminate or
otherwise adversely affect this Lease and the obligations of Tenant hereunder in
the event of any such foreclosure proceeding or sale. Tenant covenants and
agrees to execute and deliver, upon demand by Landlord and in the form
reasonably required by Landlord, any additional documents evidencing the
priority or subordination of this Lease and Tenant's attornment agreement with
respect to any such ground lease or underlying leases or the lien of any such
mortgage or deed of trust. If Tenant fails to sign and return any such
documents within ten (10) days of receipt, Tenant will be in default hereunder.
26. ESTOPPEL CERTIFICATE.
(a) TENANT'S OBLIGATIONS. Within ten (10) days following any written request
which Landlord may make from time to time, Tenant agrees to execute and deliver
to Landlord a statement, in a form substantially similar to the form of Exhibit
-------
"G" attached hereto or as may reasonably be required by Landlord's lender,
---
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, that this Lease is in full force and effect, and stating the date
and nature of such modifications); (iii) the date to which the rent 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 reasonably requested by Landlord.
Landlord and Tenant intend that any statement delivered pursuant to this
Paragraph 26 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. Tenant's failure to deliver such statement
within such time will 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 rent has been paid in advance. Without
limiting the foregoing, if Tenant fails to deliver any such statement within
such ten (10) day period, Landlord may deliver to Tenant an additional request
for such statement and Tenant's failure to deliver such statement to Landlord
within ten (10) days after delivery of such additional request will constitute a
default under this Lease. Tenant agrees to indemnify and protect Landlord from
and against any and all claims, damages, losses, liabilities and expenses
(including attorneys' fees and costs) attributable to any failure by Tenant to
timely deliver any such estoppel certificate to Landlord as required by this
Paragraph 26.
27. INTENTIONALLY OMITTED.
28. RULES AND REGULATIONS. Tenant agrees to faithfully observe and comply with
the "Rules and Regulations," a copy of which is attached hereto and incorporated
herein by this reference as Exhibit "H", and all reasonable and
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nondiscriminatory modifications thereof and additions thereto from time to time
put into effect by Landlord. Landlord will not be responsible to Tenant for the
violation or non-performance by any other tenant or occupant of the Building of
any of the Rules and Regulations.
29. MODIFICATION AND CURE RIGHTS OF LANDLORD'S MORTGAGEES AND LESSORS.
(a) MODIFICATIONS. If, in connection with Landlord's obtaining or entering into
any financing or ground lease for any portion of the Building or the
Development, the lender or ground lessor requests modifications to this Lease,
Tenant, within ten (10) days after request therefor, agrees to execute an
amendment to this Lease incorporating such modifications, provided such
modifications are reasonable and do not increase the obligations of Tenant under
this Lease or adversely affect the leasehold estate created by this Lease.
(b) CURE RIGHTS. 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 or ground lessor of Landlord whose
address has been furnished to Tenant, and Tenant agrees to offer such
beneficiary, mortgagee or ground lessor a reasonable opportunity to cure the
default (including with respect to any such beneficiary or mortgagee, time to
obtain possession of the Premises, subject to this Lease and Tenant's rights
hereunder, by power of sale or a judicial foreclosure, if such should prove
necessary to effect a cure).
30. DEFINITION OF LANDLORD. The term "Landlord," as used in this Lease, so far
as covenants or obligations on the part of Landlord are concerned, means and
includes 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 (other
than a transfer for security purposes only), Landlord herein named (and in case
of any subsequent transfers or conveyances, the then grantor) will be
automatically 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, so long as the transferee assumes in writing all such covenants and
obligations of Landlord
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arising after the date of such transfer. Landlord and Landlord's transferees and
assignees have the absolute right to transfer all or any portion of their
respective title and interest in the Development, the Building, the Premises
and/or this Lease without the consent of Tenant, and such transfer or subsequent
transfer will not be deemed a violation on Landlord's part of any of the terms
and conditions of this Lease.
31. WAIVER. The waiver by either party of any breach of any term, covenant or
condition herein contained will not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant or condition herein contained,
nor will any custom or practice which may develop between the parties in the
administration of the terms hereof be deemed a waiver of or in any way affect
the right of either party to insist upon performance in strict accordance with
said terms. The subsequent acceptance of rent or any other payment hereunder by
Landlord will 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 rent and additional rent or other sum
then due will be deemed to be other than on account of the earliest installment
of such rent or other amount due, nor will 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 provided in this Lease. The consent or approval of Landlord to or
of any act by Tenant requiring Landlord's consent or approval will not be deemed
to waive or render unnecessary Landlord's consent or approval to or of any
subsequent similar acts by Tenant.
32. PARKING.
(a) GRANT OF PARKING RIGHTS. So long as this Lease is in effect and provided
Tenant is not in default hereunder, Landlord grants to Tenant and Tenant's
Authorized Users (as defined below) a license to use the number and type of
parking spaces designated in Subparagraph 1(s) subject to the terms and
conditions of this Paragraph 32 and the Rules and Regulations regarding parking
contained in Exhibit "H" attached hereto. Except as otherwise expressly set
-----------
forth in Subparagraph 1(s), as consideration for the use of such parking spaces,
Tenant agrees to pay to Landlord or, at Landlord's election, directly to
Landlord's parking operator, as additional rent under this Lease, the prevailing
parking rate for each such parking space as established by Landlord in its
discretion from time to time. Tenant agrees that all parking charges will be
payable on a monthly basis concurrently with each monthly payment of Monthly
Base Rent. Tenant agrees to submit to Landlord or, at Landlord's election,
directly to Landlord's parking operator with a copy to Landlord, written notice
in a form reasonably specified by Landlord containing the names, home and office
addresses and telephone numbers of those persons who are authorized by Tenant to
use Tenant's parking spaces on a monthly basis ("Tenant's Authorized Users") and
shall use its best efforts to identify each vehicle of Tenant's Authorized Users
by make, model and license number. Tenant agrees to deliver such notice within
thirty (30) days after Landlord's request and to periodically update such notice
as well as upon specific request by Landlord or Landlord's parking operator to
reflect changes to Tenant's Authorized Users or their vehicles.
(b) VISITOR PARKING. So long as this Lease is in effect, Tenant's visitors and
guests will be entitled to use those specific parking areas which are designated
for short term visitor parking and which are located within the surface parking
area(s), if any, and/or within the parking structure(s) which serve the
Building. Visitor parking will be made available at a charge to Tenant's
visitors and guests, with the rate being established by Landlord in its
discretion from time to time. Tenant, at its sole cost and expense, may elect to
validate such parking for its visitors and guests. All such visitor parking will
be on a non-exclusive, in common basis with all other visitors and guests of the
Development.
(c) USE OF PARKING SPACES. Tenant will not use or allow any of Tenant's
Authorized Users to use any parking 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 will not be entitled to increase or reduce
its parking privileges applicable to the Premises during the Term of the Lease
except as follows: If at any time Tenant desires to increase or reduce the
number of parking spaces allocated to it under the terms of this Lease, Tenant
must notify Landlord in writing of such desire and Landlord will 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 payable by Tenant for such
eliminated parking spaces based on the then prevailing parking rates), or (c)
disapprove such requested increase or decrease in the number of parking spaces
allocated to Tenant. Promptly following receipt of Tenant's written request,
Landlord will provide Tenant with written notice of its decision including a
statement of any adjustments to the additional rent payable by Tenant for
parking under the Lease, if applicable.
(d) GENERAL PROVISIONS. Except as otherwise expressly set forth in Subparagraph
1(s), 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. 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 or for any
other reasonable reason. Failure to pay the rent for any particular parking
spaces or failure to comply with any terms and conditions of this Lease
applicable to parking may be treated by Landlord as a default under this 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 within
the applicable cure period set forth in Paragraph 22 of this Lease. In such
event, Tenant and Tenant's Authorized Users will be deemed visitors for purposes
of parking space use and will be entitled to use only those parking areas
specifically designated for visitor parking subject to all provisions of this
Lease applicable to such visitor parking use. Except in connection with an
assignment or sublease expressly permitted under the terms of this 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 this Lease.
(e) COOPERATION WITH TRAFFIC MITIGATION MEASURES. Tenant agrees to use its
reasonable, good faith efforts to cooperate in traffic mitigation programs which
may be undertaken by Landlord independently, or in cooperation with local
municipalities or governmental agencies or other property owners in the vicinity
of the Building. Such programs may include, but will not be limited to,
carpools, vanpools and other ridesharing programs, public and private transit,
flexible work hours, preferential
-17-
assigned parking programs and programs to coordinate tenants within the
Development with existing or proposed traffic mitigation programs.
(f) PARKING RULES AND REGULATIONS. Tenant and Tenant's Authorized Users shall
comply with all rules and regulations regarding parking set forth in
Exhibit "H" attached hereto and Tenant agrees to cause its employees,
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subtenants, assignees, contractors, suppliers, customers and invitees to comply
with such rules and regulations. Landlord reserves the right from time to time
to modify and/or adopt such other reasonable and non-discriminatory rules and
regulations for the parking facilities as it deems reasonably necessary for the
operation of the parking facilities.
33. FORCE MAJEURE. If either Landlord or Tenant is delayed, hindered in or
prevented from the performance of any act required under this Lease by reason of
strikes, lock-outs, labor troubles, inability to procure standard materials,
failure of power, restrictive governmental laws, regulations or orders or
governmental action or inaction (including failure, refusal or delay in issuing
permits, approvals and/or authorizations which is not the result of the action
or inaction of the party claiming such delay), riots, civil unrest or
insurrection, war, fire, earthquake, flood or other natural disaster, unusual
and unforeseeable delay which results from an interruption of any public
utilities (e.g., electricity, gas, water, telephone) or other unusual and
unforeseeable delay not within the reasonable control of the party delayed in
performing work or doing acts required under the provisions of this Lease, then
performance of such act will be excused for the period of the delay and the
period for the performance of any such act will be extended for a period
equivalent to the period of such delay. The provisions of this Paragraph 33
will not operate to excuse Tenant from prompt payment of rent or any other
payments required under the provisions of this Lease.
34. SIGNS. Landlord will designate the location on the Premises for one Tenant
identification sign. Tenant agrees to have Landlord install and maintain
Tenant's identification sign in such designated location in accordance with this
Paragraph 34 at Tenant's sole cost and expense. Tenant has no right to install
Tenant identification signs in any other location in, on or about the Premises
or the Development and will not display or erect any other signs, displays or
other advertising materials that are visible from the exterior of the Building
or from within the Building in any interior or exterior common areas. The size,
design, color and other physical aspects of any and all permitted sign(s) will
be subject to (i) Landlord's written approval prior to installation, which
approval may be withheld in Landlord's discretion, (ii) any covenants,
conditions or restrictions governing the Premises, and (iii) any applicable
municipal or governmental permits and approvals. Tenant will be solely
responsible for all costs for installation, maintenance, repair and removal of
any Tenant identification sign(s). If Tenant fails to remove Tenant's sign(s)
upon termination of this Lease and repair any damage caused by such removal,
Landlord may do so at Tenant's sole cost and expense. Tenant agrees to
reimburse Landlord for all costs incurred by Landlord to effect any
installation, maintenance or removal on Tenant's account, which amount will be
deemed additional rent, and may include, without limitation, all sums disbursed,
incurred or deposited by Landlord including Landlord's costs, expenses and
actual attorneys' fees with interest thereon at the Interest Rate from the date
of Landlord's demand until paid by Tenant. Any sign rights granted to Tenant
under this Lease are personal to Tenant and may not be assigned, transferred or
otherwise conveyed to any assignee or subtenant of Tenant without Landlord's
prior written consent, which consent Landlord may withhold in its sole and
absolute discretion.
35. LIMITATION ON LIABILITY. In consideration of the benefits accruing
hereunder, Tenant on behalf of itself and all successors and assigns of Tenant
covenants and agrees that, in the event of any actual or alleged failure, breach
or default hereunder by Landlord: (a) Tenant's recourse against Landlord for
monetary damages will be limited to Landlord's interest in the Building
including, subject to the prior rights of any Mortgagee, Landlord's interest in
the rents of the Building and any insurance proceeds payable to Landlord; (b)
Except as may be necessary to secure jurisdiction of the partnership or company,
no partner or member of Landlord shall be sued or named as a party in any suit
or action and no service of process shall be made against any partner or member
of Landlord; (c) No partner or member of Landlord shall be required to answer
or otherwise plead to any service of process; (d) No judgment will be taken
against any partner or member of Landlord and any judgment taken against any
partner or member of Landlord may be vacated and set aside at any time after the
fact; (e) No writ of execution will be levied against the assets of any partner
or member of Landlord; (f) The obligations under this Lease do not constitute
personal obligations of the individual members, partners, directors, officers or
shareholders of Landlord, and Tenant shall not seek recourse against the
individual members, partners, directors, officers or shareholders of Landlord or
any of their personal assets for satisfaction of any liability in respect to
this Lease; and (g) These covenants and agreements are enforceable both by
Landlord and also by any partner or member of Landlord.
36. FINANCIAL STATEMENTS. Prior to the execution of this Lease by Landlord and
at any time during the Term of this Lease upon ten (10) days prior written
notice from Landlord, Tenant agrees to provide Landlord with a current financial
statement for Tenant and any guarantors of Tenant and financial statements for
the two (2) years prior to the current financial statement year for Tenant and
any guarantors of Tenant. Such statements are to be prepared in accordance with
generally accepted accounting principles and, if such is the normal practice of
Tenant, audited by an independent certified public accountant.
37. 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 on Tenant's part to be
observed and performed under this Lease, Tenant may peaceably and quietly have,
hold and enjoy the Premises in accordance with this Lease without hindrance or
molestation by Landlord or its employees or agents.
38. MISCELLANEOUS.
(a) CONFLICT OF LAWS. This Lease shall be governed by and construed solely
pursuant to the laws of the State, without giving effect to choice of law
principles thereunder.
(b) 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.
(c) PROFESSIONAL FEES AND COSTS. If either Landlord or Tenant should bring
suit against the other with respect to this Lease, then all costs and
expenses, including without limitation, actual professional fees and costs
such as appraisers', accountants' and
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attorneys' fees and costs, incurred by the party which prevails in such action,
whether by final judgment or out of court settlement, 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 action and shall be enforceable
whether or not the action is prosecuted to judgment. As used herein, attorneys'
fees and costs shall include, without limitation, attorneys' fees, costs and
expenses incurred in connection with any (i) postjudgment motions; (ii) contempt
proceedings; (iii) garnishment, levy, and debtor and third party examination;
(iv) discovery; and (v) bankruptcy litigation.
(d) 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.
(e) 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.
(f) PRIOR AGREEMENT; AMENDMENTS. This Lease constitutes and is intended by the
parties to be a final, complete and exclusive statement of their entire
agreement with respect to the subject matter of this Lease. This Lease
supersedes any and all prior and contemporaneous agreements and understandings
of any kind relating to the subject matter of this Lease. There are no other
agreements, understandings, representations, warranties, or statements, either
oral or in written form, concerning the subject matter of this Lease. No
alteration, modification, amendment or interpretation of this Lease shall be
binding on the parties unless contained in a writing which is signed by both
parties.
(g) SEPARABILITY. The provisions of this Lease shall be considered separable
such that if any provision or part of this Lease is ever held to be invalid,
void or illegal under any law or ruling, all remaining provisions of this Lease
shall remain in full force and effect to the maximum extent permitted by law.
(h) RECORDING. Neither Landlord nor Tenant shall record this Lease nor a short
form memorandum thereof without the consent of the other.
(i) COUNTERPARTS. This Lease may be executed in one or more counterparts, each
of which shall constitute an original and all of which shall be one and the same
agreement.
(j) NONDISCLOSURE OF LEASE TERMS. Tenant acknowledges and agrees that the terms
of this Lease are confidential and constitute proprietary information of
Landlord. Disclosure of the terms could adversely affect the ability of Landlord
to negotiate other leases and impair Landlord's relationship with other tenants.
Accordingly, Tenant agrees that it, and its partners, officers, directors,
employees, agents and attorneys, shall not intentionally and voluntarily
disclose the terms and conditions of this Lease to any newspaper or other
publication or any other tenant or apparent prospective tenant of the Building
or other portion of the Development, or real estate agent, either directly or
indirectly, without the prior written consent of Landlord, provided, however,
that Tenant may disclose the terms to prospective subtenants or assignees under
this Lease.
(k) NON-DISCRIMINATION. Tenant acknowledges and agrees that there shall be no
discrimination against, or segregation of, any person, group of persons, or
entity on the basis of race, color, creed, religion, age, sex, marital status,
national origin, or ancestry in the leasing, subleasing, transferring,
assignment, occupancy, tenure, use, or enjoyment of the Premises, or any portion
thereof.
39. EXECUTION OF LEASE.
(a) JOINT AND SEVERAL OBLIGATIONS. If more than one person executes this Lease
as Tenant, their execution of this Lease will constitute their covenant and
agreement that (i) 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
(ii) the term "Tenant" as used in this Lease means and includes 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, will 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.
(b) TENANT AS CORPORATION OR PARTNERSHIP. If Tenant executes this Lease as a
corporation or partnership, then Tenant and the persons executing this Lease on
behalf of Tenant represent and warrant that such entity is duly qualified and in
good standing to do business in California and that the individuals executing
this Lease on Tenant's behalf are duly authorized to execute and deliver this
Lease on its behalf, and in the case of a corporation, 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, if requested by Landlord, and in
accordance with the by-laws of Tenant, and, in the case of a partnership, in
accordance with the partnership agreement and the most current amendments
thereto, if any, copies of which are to be delivered to Landlord on execution
hereof, if requested by Landlord, and that this Lease is binding upon Tenant in
accordance with its terms.
(c) EXAMINATION OF LEASE. Submission of this instrument by Landlord to Tenant
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.
IN WITNESS WHEREOF, the parties have caused this Lease to be duly executed by
their duly authorized representatives as of the date first above written.
-19-
TENANT: LANDLORD:
NEW CENTURY FINANCIAL CORPORATION XXXX CENTER IRVINE NUMBER TWO,
a Delaware corporation a California limited partnership
By: /s/ XXXX X. XXXXXXX By: Connecticut General Life Insurance Company,
------------------------------ General Partner
Print Name: Xxxx X. Xxxxxxx
----------------- By: Cigna Investments, Inc.,
Print Title: President Its Authorized Agent
-----------------
By: By: /s/ XXXXXXX X. XXXXXXX
------------------------------ -----------------------------------
Print Name: Print Name: Xxxxxxx X. Xxxxxxx
----------------- -----------------------------------------
Print Title: Print Title: Managing Director
----------------- -----------------------------
-20-
ADDENDUM TO LEASE
-----------------
This ADDENDUM is attached to, made a part of, incorporated into and
amends and supplements that certain Office Building Lease dated ___________,
1997 (the "Lease"), by and between XXXX CENTER IRVINE NUMBER TWO, a California
limited partnership ("Landlord"), and NEW CENTURY FINANCIAL CORPORATION, a
Delaware corporation ("Tenant"). Landlord and Tenant agree that,
notwithstanding anything contained in the Lease to the contrary, the provisions
set forth in this Addendum will be deemed to be a part of the Lease and will
supersede any contrary provision in the Lease and shall prevail and control for
all purposes. All references in the Lease and this Addendum to the defined term
"Lease" are to be construed to mean the Lease as amended and supplemented by
this Addendum. Terms which are not defined in this Addendum have the meanings
given to them in the Lease. The paragraphs below are numbered consecutively
with those in the Lease.
40. Option To Extend.
----------------
(a) Subject to the terms of this Paragraph 40 and Paragraph 42,
entitled "Options," Landlord hereby grants to Tenant an option (the
"Extension Option") to extend the Term of this Lease with respect to the
entire Premises (as expanded, if applicable) for one (1) additional period
of five (5) years (the "Option Term"), on the same terms, covenants and
conditions as provided for in this Lease during the initial Lease Term,
except that all economic terms such as, without limitation, Monthly Base
Rent, an Operating Expense Allowance, if any, parking charges, etc., shall
be established based on the "fair market rental rate" for the Premises for
the Option Term as defined and determined in accordance with the provisions
of this Paragraph 40 below.
(b) The Extension Option must be exercised, if at all, by written
notice ("Extension Notice") delivered by Tenant to Landlord no later than
the date which is two hundred seventy (270) days, and no earlier than the
date which is one (1) year, prior to the expiration of the then current
Term of this Lease.
(c) The term "fair market rental rate" as used in this Addendum
shall mean 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 full-floor space, comparable in
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, and any other lease
terms then being considered by Landlord or the lessors of such similar
office buildings.
(d) Landlord's determination of fair market rental rate shall be
delivered to Tenant in writing not later than thirty (30) days following
Landlord's receipt of Tenant's Extension Notice. Tenant will have thirty
(30) days ("Tenant's Review Period") after receipt of Landlord's notice of
the fair market rental rate within which to accept such fair market rental
rate or to object thereto in writing. Tenant's failure to object to the
fair market rental rate submitted by Landlord in writing within Tenant's
Review Period will conclusively be deemed Tenant's approval and acceptance
thereof. If Tenant objects to the fair market rental rate submitted by
Landlord within Tenant's Review Period, then Landlord and Tenant will
attempt in good faith to agree upon such fair market rental rate using
their best good faith efforts. If Landlord and Tenant fail to reach
agreement on such fair market rental rate within fifteen (15) days
following the expiration of Tenant's Review Period (the "Outside Agreement
Date"), then each party's determination will be submitted to appraisal in
accordance with the provisions below.
(e) (i) Landlord and Tenant shall each appoint one independent,
unaffiliated appraiser who shall by profession be a real estate broker who
has been active over the five (5) year period ending on the date of such
appointment in the leasing of high-rise office space in the Comparison
Area. Each such appraiser will be appointed within thirty (30) days after
the Outside Agreement Date.
(ii) The two (2) appraisers so appointed will within fifteen (15)
days of the date of the appointment of the last appointed appraiser agree
upon and appoint a third appraiser who shall be qualified under the same
criteria set forth herein above for qualification of the initial two (2)
appraisers.
(iii) The determination of the appraisers shall be limited
solely to the issue of whether Landlord's or Tenant's last proposed (as of
the Outside Agreement Date) new Monthly Base Rent for the Premises is the
closest to the actual new Monthly Base Rent for the Premises as determined
by the appraisers, taking into account the requirements of Paragraph (c)
and this Paragraph (e) regarding same.
(iv) The three (3) appraisers shall within thirty (30) days of
the appointment of the third appraiser reach a decision as to whether the
parties shall use Landlord's or Tenant's submitted new Monthly Base Rent,
and shall notify Landlord and Tenant thereof.
(v) The decision of the majority of the three (3) appraisers
shall be binding upon Landlord and Tenant. The cost of each party's
appraiser shall be the responsibility of the party selecting
ADDENDUM
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Page 1
such appraiser, and the cost of the third appraiser (or arbitration, if
necessary) shall be shared equally by Landlord and Tenant.
(vi) If either Landlord or Tenant fails to appoint an appraiser
within the time period in Paragraph (e)(i) herein above, the appraiser
appointed by one of them shall reach a decision, notify Landlord and Tenant
thereof and such appraiser's decision shall be binding upon Landlord and
Tenant.
(vii) If the two (2) appraisers fail to agree upon and appoint a
third appraiser, both appraisers 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 Monthly Base Rent is not
established prior to end of the initial Term of the Lease, the Monthly Base
Rent immediately payable at the commencement of the Option Term shall be
the Monthly Base Rent payable in the immediately preceding month.
Notwithstanding the above, once the fair market rental is determined in
accordance with this section, the parties shall settle any overpayment or
underpayment on the next Monthly Base Rent payment date falling not less
than thirty (30) days after such determination.
41. Right to Lease Additional Space.
-------------------------------
(a) Subject to the terms of this Paragraph 41 and Paragraph 42,
entitled "Options," Tenant shall have a continuing right to lease (the
"Right to Lease") any space on the second (2nd) or ninth (9th) floors of
the Building in incremental sizes acceptable to Landlord, to the extent
such space becomes available for lease to third parties after the
expiration of any existing lease for such space during the initial Term or
the Option Term (if Tenant properly exercises its Extension Option),
including the expiration of all renewal or extension options under such
leases, and after the existing tenants or occupants vacate such space (the
"First Offer Space"). Tenant's Right to Lease is subject and subordinate
to the rights of all other tenants of the Building with rights relative to
any such First Offer Space granted prior to the date of this Lease. Thus,
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 prior
to Tenant's rights. Additionally, Landlord reserves the right to renew the
leases (either on a month-to-month or fixed-term basis) of tenants in the
First Offer Space or allow such tenants to hold over with respect to any or
all of the First Offer Space, without giving rise to any of Tenant's rights
pursuant to this Right to Lease, as Landlord deems appropriate in its sole
and absolute discretion.
(b) As to First Offer Space which is unleased as of the date of
this Lease, promptly following Landlord's receipt of genuine interest from
a third party to lease such space, Landlord will give Tenant written notice
of such interest and the availability of such space ("Landlord's
Availability Notice"). As to First Offer Space which is leased on the date
of this Lease, 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 Landlord's
Availability Notice as to such space. Within five (5) business days
following delivery of Landlord's Availability Notice, Tenant will in
writing have the right to request from Landlord a written statement setting
forth the basic economic terms, including, but not limited to, Landlord's
determination (as provided in Paragraph 40(c) above) of the Monthly Base
Rent, an 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 desired by Tenant.
(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 such First Offer Space upon
such Economic Terms and the same non-Economic Terms as set forth in this
Lease 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 any 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 described above will
be followed. If Tenant exercises its Right to Lease as provided herein,
the parties will promptly thereafter execute an amendment to this Lease to
include the First Offer Space in the Premises and to document the lease
terms thereof. The Lease Term for any First Offer Space shall be
coterminous with the Lease Term for the original Premises. It shall be a
condition to the valid exercise by Tenant of its Right to Lease that
Tenant, within ten (10) days following such exercise, deliver to Landlord a
new Letter of Credit, if the Letter of Credit is still outstanding as
contemplated in Paragraph 44 below, in a greater amount commensurate with
the leasing commissions and maximum tenant improvement dollars to be
expended by Landlord pursuant to the terms of Tenant's leasing of such
First Offer Space.
42. Options.
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(a) As used in this Paragraph, the word "Option" means the
Extension Option pursuant to Paragraph 40 herein and the Right to Lease
pursuant to Paragraph 41 herein.
ADDENDUM
--------
Page 2
(b) The Options are personal to the original Tenant executing
this Lease and may be exercised only by the original Tenant executing this
Lease while occupying the entire Premises (as expanded) and without the
intent of thereafter assigning this Lease or subletting the Premises (as
expanded) and may not be exercised or be assigned, voluntarily or
involuntarily, by any person or entity other than the original Tenant
executing this Lease. The Options 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) 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 (i) Tenant shall be in default of any
monetary obligation or material nonmonetary obligation under the terms of
this Lease as of Tenant's exercise of the Option in question or at any time
after the exercise of such Option and prior to the commencement of the
Option event, or (ii) Landlord has given Tenant two (2) or more notices of
default, whether or not such defaults are subsequently cured, during any
twelve (12) consecutive month period.
43. Mandatory Space Takedown.
------------------------
(a) Tenant hereby agrees to lease that certain space on the ninth
(9th) floor of the Building which consists of approximately 19,097 Rentable
(16,639 Usable) Square Feet as shown on Exhibit "A-II" attached hereto (the
--------------
"Takedown Space"). Tenant's lease of the Takedown Space shall take effect
on December 1, 1997, or earlier to the extent Tenant moves into any portion
of such space prior to such date ("Takedown Commencement Date"). Effective
upon the Takedown Commencement Date, the Takedown Space shall be included
within the Premises pursuant to the terms of this Lease and this Lease
shall govern Landlord's and Tenant's rights and obligations with respect to
the Takedown Space, provided, however, the improvement of the Takedown
Space shall be subject to the provisions of subparagraph (b) below.
(b) Landlord and Tenant agree that the Takedown Space is to be
improved prior to the Takedown Commencement Date in a manner similar to the
improvement of the original portions of the Premises pursuant to the floor
plan and buildout specifications which will be approved by Landlord and
Tenant pursuant to the terms of the Work Letter Agreement which is attached
to this Lease as Exhibit "C". Landlord and Tenant agree that Tenant shall
-----------
receive a prorated "Allowance" which shall be applied by Landlord to the
costs of improving the Takedown Space, which shall be accomplished in a
manner consistent with the terms of the Work Letter Agreement. For
purposes of calculating the prorated amount of the Allowance as applied to
the Takedown Space, the Allowance shall be Fifteen Dollars ($15.00) per
Usable Square Foot of the Takedown Space multiplied by a fraction, the
numerator of which is the number of full months remaining in the original
Lease Term from the Takedown Commencement Date (i.e., December 1, 1997),
----
and the denominator of would be 60. Tenant acknowledges that in no event
will Landlord be required to commence incurring costs with respect to the
design and improvement of the Takedown Space until the amount secured by
the Letter of Credit has stepped-up to the full amount required to be
secured thereby (i.e., $1,221,320.00).
(c) The term of Tenant's lease of the Takedown Space shall expire
coterminously with the Term of Tenant's lease of the original Premises.
Even though Monthly Base Rent on the Takedown Space will commence on the
Takedown Commencement Date, Landlord will not be obligated to deliver
possession of the Takedown Space to Tenant until Tenant pays to Landlord
(i) the first installment of $34,756.54 in Monthly Base Rent on the
Takedown Space, calculated at the rate provided in Paragraph 1(m) of this
Lease, and (ii) an additional $38,232.19 in cash Security Deposit (110% of
the amount of the Monthly Base Rent described in clause (i) immediately
preceding). Tenant acknowledges that the portion of the Takedown Space
which is Suite 910, consisting of approximately 1,158 Rentable Square Feet,
is not scheduled to be vacant until October 31, 1997. Accordingly, Monthly
Base Rent on Suite 910 will commence to accrue on the day which is sixty
(60) days after the existing occupant vacates Suite 910.
ADDENDUM
--------
Page 3
44. Letter of Credit.
----------------
(a) On or before April 15, 1997, Tenant shall deliver to Landlord
an unconditional, irrevocable letter of credit ("Letter of Credit") in the
amount and substantially in the form attached hereto as Exhibit "J" and
-----------
otherwise satisfactory to Landlord in its sole discretion. Tenant's
failure to timely deliver to Landlord the Letter of Credit will constitute
a material default under this Lease, as to which Landlord will have all
rights and remedies. Additionally, for each day after April 15, 1997 that
Tenant fails to deliver to Landlord the Letter of Credit, such day shall
constitute a day of Tenant Delay as contemplated in the Work Letter
Agreement. Until Tenant delivers to Landlord the Letter of Credit, Tenant
acknowledges that Landlord will not be required to incur any costs in
connection with the design and construction of the Tenant Improvements,
other than as may have already been incurred by Landlord pursuant to the
terms of the Design Work Reimbursement Agreement between Landlord and
Tenant, the terms of which shall survive the execution of this Lease
(notwithstanding anything to the contrary contained in such Agreement) and
Tenant will be responsible for all amounts incurred by Landlord pursuant to
such Agreement. The Letter of Credit shall be held by Landlord as Security
Deposit to secure Tenant's faithful performance of Tenant's obligations
under this Lease. The Letter of Credit shall be issued by a financial
institution acceptable to Landlord in its sole discretion and such
financial institution must have an established presence in Orange County,
California and the Letter of Credit must be presentable in Orange County;
provided, however, Landlord initially approves First Bank as the issuer of
the Letter of Credit and acknowledges that draws will be required to be
presented in Minneapolis, Minnesota. If Tenant fails to pay rent, or
otherwise defaults with respect to any provision of this Lease and fails to
cure any such default after Landlord has given any notice required under
this Lease (provided Landlord is not barred by applicable law from giving
such notice), Landlord may execute one or more drafts on the Letter of
Credit for the payment of any rent or for the payment of any other sum for
which Landlord may become entitled by reason of Tenant's default, or for
any payment to which Landlord may become entitled by reason of Tenant's
default, or for payment to Landlord for any loss or damage which Landlord
may suffer thereby. The Letter of Credit shall contain language allowing
Landlord to draw upon the Letter of Credit upon presentation to the issuer
of the Letter of Credit of Landlord's written statement that Landlord is
entitled to the funds represented by such Letter of Credit in accordance
with the terms of this Lease. Notification of or approval by Tenant prior
to any drawing upon the Letter of Credit shall not be required. Landlord
and Tenant agree that Landlord may draw upon the Letter of Credit without
notice to Tenant upon the occurrence or non-occurrence of any event
entitling Landlord under this Lease to apply any portion of the Security
Deposit. If Landlord so uses or applies all or any portion of said
Security Deposit, Tenant shall, within ten (10) days after written demand
therefor, at Landlord's sole option, (i) deposit cash with Landlord in lieu
of the Letter of Credit in amount drawn or (ii) deliver a replacement
Letter of Credit in the amount drawn so that the total funds for the
Security Deposit equals the required amount, and Tenant's failure to do so
shall be material breach of this Lease.
(b) The initial Letter of Credit steps up to the maximum amount
of $1,221,320. Such amount was derived by assuming the full amount of the
tenant improvement allowances ($817,806 in the aggregate) will be expended
by Landlord as contemplated in this Lease. After the entire Premises
(including the Takedown Space) has been built out and Landlord has
determined exactly how much it spent, until the first anniversary of the
Commencement Date (provided Tenant is not in default under this Lease),
Tenant may substitute the initial Letter of Credit for a new Letter of
Credit (otherwise satisfying and subject to the provisions set forth in
subparagraph (a) above) in an amount equal to the difference between
$1,221,320 and the portion of the aggregate tenant improvements allowances
($817,806) not expended by Landlord. By way of example, if Landlord only
spends $796,486 on improving the Premises (including the Takedown Space),
then the replacement Letter of Credit would be in the amount of $1,200,000.
The expiration date of the replacement Letter of Credit shall be no earlier
than the expiration of the initial Letter of Credit.
(c) No later than thirty (30) days prior to the expiration of the
Letter of Credit initially delivered to Landlord or any replacement or
renewal thereof, Tenant shall deliver a new Letter of Credit substantially
the same in form (except as provided in subparagraph (d) below and except
that the new Letter of Credit will not step-up in amount as contemplated in
the form of Letter of Credit attached hereto as Exhibit "J" ) as the then
-----------
existing Letter of Credit held by Landlord except that the expiration date
set forth in such new Letter of Credit shall not be earlier than twelve
(12) months after the expiration date set forth in the Letter of Credit
which is then being replaced and the issuer may be changed by Tenant to a
financial institution acceptable to Landlord in its sole discretion. If
Tenant fails to deliver a new Letter of Credit as required herein by this
subparagraph (c), Landlord shall have the right, at its sole option, to
draw on and present the then existing Letter of Credit for the entire
amount remaining available thereunder. Until such time as Tenant shall
thereafter deliver a new Letter of Credit in the form and substance
required hereunder, Landlord shall retain possession of funds so drawn as
Security Deposit to secure Tenant's faithful obligations under this Lease.
Any such replacement Letter of Credit shall satisfy and be subject to the
provisions set forth in subparagraph (a) above. Should the Letter of
Credit then in effect be revoked or should the creditworthiness of the
issuer of the Letter of Credit then in effect become impaired (in
Landlord's sole judgment), then Tenant shall deliver a replacement Letter
of Credit in form and substance required hereunder.
ADDENDUM
--------
Page 4
(d) On each anniversary of the date of issuance of the initial
Letter of Credit delivered to Landlord pursuant to the terms of
subparagraph (a) above, the amount secured by the Letter of Credit (as
increased pursuant to the terms of Paragraph 41(d) hereof, if applicable)
shall be reduced by twenty percent (20%) of the current amount of the
Letter of Credit, provided Landlord has not previously sent a notice of
default (provided Landlord is not barred by applicable law from giving such
notice) to Tenant relative to any monetary or material nonmonetary
provision of this Lease (whether or not such default was later cured).
(e) If Landlord transfers its interest under this Lease, within
ten (10) days following demand by Landlord, Tenant shall at its cost
deliver to the transferee a replacement Letter of Credit naming such
transferee (rather than Landlord) as the beneficiary thereunder. On or
after the second anniversary of the Commencement Date, Tenant may submit to
Landlord audited (by a "Big Six" accounting firm) financial statements for
Tenant showing Tenant having either a net worth equal to or greater than
$25,000,000 or retained earnings equal to or greater than $10,000,000, for
at least the four (4) most recent consecutive fiscal quarters of Tenant.
If Tenant can satisfy such requirement and Landlord has not previously
deliver to Tenant a notice of default under this Lease (provided Landlord
is not barred by applicable law from giving such notice) with respect to
any monetary or material nonmonetary provision of this Lease (whether or
not such default was later cured), then Landlord will return to Tenant the
Letter of Credit.
45. Satellite Dish. Provided Tenant executes and delivers to Landlord
--------------
the Satellite Antenna License Agreement in the form attached to this Lease as
Exhibit "I" and Tenant is not in default under this Lease at the time of such
execution and delivery, Tenant may install one (1) antenna or satellite dish on
the roof of the Building, subject to compliance with all of the terms and
conditions of the Satellite Antenna License Agreement. As provided in such
Agreement, the rent will be $250.00 per month with annual, compounding 4%
increases.
46. ADA. Tenant shall be responsible for causing, at Tenant's sole
---
cost and expense, the Premises (which includes the elevator lobbies and
restrooms on the 10th and 11th floors) to comply with the Americans With
Disabilities Act of 1990, as subsequently amended (the "ADA"), and all similar
federal, state and local laws, rules and regulations and subsequent amendments
thereof. Landlord shall be responsible for causing, as and when deemed
appropriate by Landlord, the Common Areas of the remainder of the Building
(including the elevator lobbies and restrooms, if any, on the ground and 9th
floors) to comply with the ADA, the costs for which shall constitute a component
of Operating Expenses, except to the extent such costs are incurred as a result
of Tenant's specific use of the Premises, or as a result of any Alterations to
the Premises made by or on behalf of Tenant.
47. Adjacent Restaurant Use. Tenant acknowledges that a restaurant
-----------------------
operation is or will be located immediately adjacent to the ground floor portion
of the Premises and that as a result of such restaurant use, Tenant may
experience mild odors, noise and other mild inconveniences associated with such
use. Tenant shall not be entitled to cancel this Lease, xxxxx or reduce rent or
other sums due hereunder, or otherwise to allege or claim as to Landlord any
damages, losses or other consideration arising out of or attributable to such
use.
48. Parking. Tenant shall be entitled to a maximum of five (5), and
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will pay for, whether or not Tenant uses, a minimum of three (3), unreserved
employee parking spaces per 1,000 Usable Square Feet of the Premises from time
to time leased by Tenant. The rental rate for the unreserved parking spaces used
by Tenant, subject to the minimum and maximum amounts described above, will be
in accordance with the following schedule:
Rate Per Stall
Months Per Month
------ ---------------
1 - 24 $40.00
25 - 48 $50.00
49 - 60 $60.00
At Landlord's option, upon providing Tenant with no less than thirty
(30) days prior written notice, Landlord may relocate up to fifty percent (50%)
of the above-referenced parking spaces to the top level of the parking structure
and Tenant will cooperate with Landlord in enforcing such arrangement. With
respect to any such relocated parking spaces, Tenant's parking rate will be as
follows:
Rate Per Stall
Months Per Month
------ ---------------
1 - 24 $40.00
25 - 36 $45.00
37 - 60 $50.00
Tenant will also be entitled to use, and will pay for whether or not
Tenant uses, seven (7) reserved parking spaces at the rate of $100.00 per stall
per month throughout the original Lease Term. Such reserved parking spaces may
be included within the minimum number of parking spaces required to be paid for
by Tenant as described above in connection with the unreserved parking stalls.
The location of the reserved parking spaces is shown on Exhibit "K" attached
-----------
hereto.
49. Signage. In accordance with the terms of Paragraph 34 of this
-------
Lease, Tenant will be entitled to two (2) building top signs, which will say New
Century, in the location designated by Landlord.
ADDENDUM
--------
Page 5
50. Arbitration. If Landlord and Tenant dispute whether or not
-----------
Tenant may xxxxx rent pursuant to the terms of Paragraph 17 of this Lease, or
the amount thereof ("Dispute"), then such Dispute, if timely demanded pursuant
to Subparagraph (a) below, shall be resolved and adjudicated by binding
arbitration in accordance with Title 9 of the California Code of Civil
Procedure, Section 1280, et seq., except to the extent otherwise specified
herein. The arbitrator shall be a neutral, disinterested retired judge selected
by the parties from a panel of retired judges available through the Judicial
Arbitration and Mediation Service ("JAMS") or, if JAMS or its successor does not
then exist, by any other arbitrator or retired judge affiliated with a private,
disinterested association providing arbitration services. Should the parties
fail to agree on the selection of a disinterested, neutral arbitrator within
twenty (20) days of written demand accompanied by written notice of the Dispute
by either party, either party may petition a California court of competent
jurisdiction and proper venue to appoint an arbitrator pursuant to Code of Civil
Procedure Section 1281.6. The arbitration shall be held within sixty (60) days
after the selection of the arbitrator. The provisions of Code of Civil
Procedure Section 1283.05, allowing for the taking of depositions for discovery
purposes in arbitration proceedings, are hereby expressly adopted and agreed to
by the parties. Any hearings required for purposes of the arbitration shall be
in Orange County, California, at the offices of the arbitrator or such other
place designated by the arbitrator. The arbitration procedure shall be subject
to the following:
(a) Any demand for arbitration shall be in writing and must be
made and served on the other party within a reasonable time after the
Dispute has arisen and in no event shall the demand for arbitration be made
after the earlier of the date which is (i) thirty (30) days after service
by either party of summons and complaint, the subject matter of which is
essentially identical with the subject matter of the demand for
arbitration, or (ii) the date that institution of legal or equitable
proceedings based on such Dispute would be barred by the applicable statute
of limitations.
(b) The provisions of this Paragraph 50 are not intended to
require Landlord to arbitrate any matters relating to a default by Tenant
under this Lease, which matters shall, at the election of Landlord, be
governed by the applicable provisions of this Lease and/or applicable law.
(c) All proceedings involving the parties shall be reported by a
certified shorthand court reporter and written transcripts of the
proceedings shall be prepared and made available to the parties.
(d) The arbitrator shall prepare and deliver to the parties
factual findings in writing which shall include the reasons on which the
decision of the arbitrator is based. The arbitrator shall be bound by the
provisions of this Lease, and shall not add to, subtract from or otherwise
modify such provisions.
(e) Final decision by the arbitrator must be provided to the
parties within thirty (30) days from the date on which the matter is
submitted to the arbitrator.
(f) The prevailing party (as defined below) shall be awarded
reasonable attorneys' fees, expert and nonexpert witness costs and expenses
(including without limitation the fees and costs of the court reporter
described in Subparagraph (c) above), and other costs and expenses incurred
in connection with the arbitration, unless the arbitrator for good cause
determines otherwise.
(g) As used herein, the term "prevailing party" shall mean the
party, if any, that the arbitrator determines is "clearly the prevailing
party."
(h) Costs and fees of the arbitrator shall be borne by the
nonprevailing party, unless the arbitrator for good cause determines
otherwise. If there is no prevailing party, the parties shall bear their
own fees and costs and split the fees and costs of the arbitrator and court
reporter.
(i) The award or decision of the arbitrator, which may include
equitable relief, shall be final and judgment may be entered on it in
accordance with applicable law in any court having jurisdiction over the
matter. The provisions of this Paragraph 50 are not intended to alter the
applicable provisions of law which provide the grounds on which a court may
vacate an arbitration award.
ADDENDUM
--------
Page 6
TENANT: LANDLORD:
NEW CENTURY FINANCIAL CORPORATION XXXX CENTER IRVINE NUMBER TWO,
a Delaware corporation a California limited partnership
By: By: Connecticut General Life Insurance Company,
----------------------------- General Partner
Print Name:
---------------------- By: Cigna Investments, Inc.,
Print Title: Its Authorized Agent
---------------------
By: By:
----------------------------- ---------------------------------------
Print Name: Print Name:
------------------ ----------------------------
Print Title: Print Title:
------------------- ----------------------------
ADDENDUM
--------
Page 7
SITE PLAN
---------
[To be supplied]
EXHIBIT "A=1"
-------------
OUTLINE OF FLOOR
PLAN OF PREMISES
----------------
[To be supplied]
EXHIBIT "A-II"
--------------
Page 1
EXHIBIT "A=II"
--------------
Page 2
EXHIBIT "A=II"
--------------
Page 3
EXHIBIT "A=II"
--------------
Page 0
XXXXXXXX XXXXXX XXXX XXX XXXXXX XXXXXX FEET
-------------------------------------------
1. The term "Rentable Square Feet" as used in the Lease will be deemed to
include: (a) with respect to the Premises, the usable area of the Premises
determined in accordance with the Method for Measuring Floor Area in Office
Buildings, ANSI Z65.1-1980 (the "BOMA Standard"), plus a pro rata portion of
the main lobby area on the ground floor and all elevator machine rooms,
electrical and telephone equipment rooms and mail delivery facilities and
other areas used by all tenants of the Building, if any, plus (i) for single
tenancy floors, all the area covered by the elevator lobbies, corridors,
special stairways, restrooms, mechanical rooms, electrical rooms and
telephone closets on such floors, or (ii) for multiple tenancy floors, a pro-
rata portion of all of the area covered by the elevator lobbies, corridors,
special stairways, restrooms, mechanical rooms, electrical rooms and
telephone closets on such floor; and (b) with respect to the Building, the
total rentable area for all floors in the Building computed in accordance
with the provisions of Subparagraph 1(a) above. In calculating the "Rentable
Square Feet" of the Premises or the Building, the area contained within the
exterior walls of the Building stairs, fire towers, vertical ducts, elevator
shafts, flues, vents, stacks and major pipe shafts will be excluded.
2. The term "Usable Square Feet" as used in Exhibit "C" with respect to the
-----------
Premises will be deemed to include the usable area of the Premises as
determined in accordance with the BOMA Standard.
3. For purposes of establishing Tenant's Percentage, Tenant's Operating Expense
Allowance, and Monthly Base Rent as shown in Paragraph 1 of the Lease, the
number of Rentable Square Feet of the Premises is deemed to be as set forth
in Subparagraph 1(g) of the Lease, and the number of Rentable Square Feet of
the Building is deemed to be as set forth in Subparagraph 1(f) of the Lease.
For purposes of establishing the amount of the Tenant Improvement Allowance
in Exhibit "C", the number of Usable Square Feet of the Premises is deemed to
-----------
be as set forth in Subparagraph 1(g). From time to time at Landlord's
option, Landlord's architect may redetermine the actual number of Rentable
Square Feet of the Premises, and the Building, and the actual number of
Usable Square Feet of the Premises respectively, based upon the criteria set
forth in Paragraph 1 and Paragraph 2 above, which determination will be
conclusive, and thereupon Tenant's Percentage, Tenant's Operating Expense
Allowance, Monthly Base Rent and the Tenant Improvement Allowance will be
adjusted accordingly.
EXHIBIT "B"
-----------
WORK LETTER AGREEMENT
---------------------
[ALLOWANCE]
This WORK LETTER AGREEMENT ("Work Letter Agreement") is entered into as of the
day of , 19 by and between XXXX CENTER IRVINE NUMBER TWO, a
California limited partnership ("Landlord"), and NEW CENTURY FINANCIAL
CORPORATION, a Delaware corporation ("Tenant").
R E C I T A L S :
----------------
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" attached to the Lease.
-----------
All terms not defined herein have the same meaning as set forth in the Lease.
To the extent applicable, the provisions of the Lease are 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 agree as follows:
1. TENANT IMPROVEMENTS. As used in the Lease and this Work Letter Agreement,
-------------------
the term "Tenant Improvements" or "Tenant Improvement Work" means those items of
general tenant improvement construction shown on the Final Plans (described in
Paragraph 4 below), more particularly described in Paragraph 5 below. Landlord
and Tenant contemplate that Landlord will bid the Tenant Improvement Work (using
the same bid package, including required construction deadlines) to three
contractors, two of which will be selected by Landlord and the third of which
("Tenant's Contractor") will be selected by Tenant, but subject to Landlord's
reasonable approval. Landlord will select the lowest responsive bidder;
provided, however, if Tenant's Contractor is not the lowest responsive bidder
but Tenant's Contractor's bid is within $10,000 of the lowest responsive bidder,
then Landlord agrees to contract with Tenant's Contractor to construct the
Tenant Improvement Work. The Contractor selected by Landlord to construct the
Tenant Improvement Work in accordance with the foregoing is referred to in this
Work Letter Agreement as the "Approved Contractor." The contractors selected by
Landlord shall have a minimum of five (5) business days to bid the Tenant
Improvement Work and if any such contractor takes longer to submit a bid and all
required permits are in hand such that waiting for the missing bid(s) will delay
commencement of construction of the Tenant Improvements, then Landlord will only
consider the bid(s) timely received and will not wait for any other bid(s).
Landlord has agreed to contract with Tenant's Architect to produce the Space
Plans and the Final Plans (as defined below), who is referred to herein as
"Tenant's Architect." The Approved Contractor will be required to use
Landlord's designated engineers to design, and Landlord's designated
subcontractors to install, the mechanical, electrical and fire and life safety
system portions of the Tenant Improvement Work ("Landlord's Subcontractors and
Engineers").
2. WORK SCHEDULE. Within ten (10) days after the execution of this Lease,
-------------
Landlord will deliver to Tenant, for Tenant's review and approval, a schedule
("Work Schedule") which will set forth the timetable for the planning and
completion of the installation of the Tenant Improvements and the Commencement
Date of the Lease. The Work Schedule will set forth each of the various items
of work to be done or approval to be given by Landlord and Tenant in connection
with the completion of the Tenant Improvements. The Work Schedule will be
submitted to Tenant for its approval, which approval Tenant agrees not to
unreasonably withhold, and, once approved by both Landlord and Tenant, the Work
Schedule will become the basis for completing the Tenant Improvements. All
plans and drawings required by this Work Letter Agreement and all work performed
pursuant thereto are to be prepared and performed in accordance with the Work
Schedule. If Tenant fails to approve the Work Schedule, as it may be modified
after discussions between Landlord and Tenant within five (5) business days
after the date the Work Schedule is first received by Tenant, the Work Schedule
shall be deemed to be approved by Tenant as submitted or Landlord may, at its
option, terminate the Lease upon written notice to Tenant.
3. CONSTRUCTION REPRESENTATIVES. Landlord hereby appoints the following
----------------------------
person(s) as Landlord's representative ("Landlord's Representative") to act for
Landlord in all matters covered by this Work Letter Agreement: Xxxxx Xxxxxxxx
--------------
Tenant hereby appoints the following person(s) as Tenant's representative
("Tenant's Representative") to act for Tenant in all matters covered by this
Work Letter Agreement: Xxxx Xxxxx.
----------
All communications with respect to the matters covered by this Work Letter
Agreement are to made to Landlord's Representative or Tenant's Representative,
as the case may be, in writing in compliance with the notice provisions of the
Lease. Either party may change its representative under this Work Letter
Agreement at any time by written notice to the other party in compliance with
the notice provisions of the Lease.
4. TENANT IMPROVEMENT PLANS.
------------------------
(a) PREPARATION OF SPACE PLANS. In accordance with the Work Schedule, Landlord
--------------------------
agrees to meet with Tenant's Architect for the purpose of promptly preparing
preliminary space plans for the layout of Premises ("Space Plans"). The Space
Plans are to be sufficient to convey the architectural design of the Premises
and layout of the Tenant Improvements therein and are to be submitted to
Landlord in accordance with the Work Schedule for Landlord's approval. If
Landlord reasonably disapproves any aspect of the Space Plans, Landlord will
advise Tenant in writing of such disapproval and the reasons therefor in
accordance with the Work Schedule. Tenant will then cause Tenant's Architect to
submit to Landlord for Landlord's approval, in accordance with the Work
Schedule, a redesign of the Space Plans incorporating the revisions reasonably
required by Landlord.
EXHIBIT "C"
-----------
Page 1
(b) PREPARATION OF FINAL PLANS. Based on the approved Space Plans, and in
--------------------------
accordance with the Work Schedule, Tenant will cause Tenant's Architect to
prepare complete architectural plans, drawings and specifications and complete
engineered mechanical, structural and electrical working drawings for all of the
Tenant Improvements for the Premises (collectively, the "Final Plans"). The
Final Plans will show: (a) the subdivision (including partitions and walls),
layout, lighting, finish and decoration work (including carpeting and other
floor coverings) for the Premises; (b) all internal and external communications
and utility facilities which will require conduiting or other improvements from
the base Building shell work and/or within common areas; and (c) all other
specifications for the Tenant Improvements. The Final Plans will be submitted to
Landlord for signature to confirm that they are consistent with the Space Plans.
If Landlord reasonably disapproves any aspect of the Final Plans based on any
inconsistency with the Space Plans, Landlord agrees to advise Tenant in writing
of such disapproval and the reasons therefor within the time frame set forth in
the Work Schedule. In accordance with the Work Schedule, Tenant will then cause
Tenant's Architect to redesign the Final Plans incorporating the revisions
reasonably requested by Landlord so as to make the Final Plans consistent with
the Space Plans.
(c) REQUIREMENTS OF TENANT'S FINAL PLANS. Tenant's Final Plans will include
------------------------------------
locations and complete dimensions, and the Tenant Improvements, as shown on
Final Plans, will (i) be compatible with the Building shell and with the design,
construction and equipment of the Building; (ii) if not comprised of the
Building standards set forth in the written description thereof (the
"Standards"), then compatible with and of at least equal quality as the
Standards and approved by Landlord; (iii) comply with all applicable laws,
ordinances, rules and regulations of all governmental authorities having
jurisdiction, and all applicable insurance regulations; (iv) not require
Building service beyond the level normally provided to other tenants in the
Building and will not overload the Building floors; and (v) be of a nature and
quality consistent with the overall objectives of Landlord for the Building, as
determined by Landlord in its reasonable but subjective discretion.
(d) SUBMITTAL OF FINAL PLANS. Once approved by Landlord and Tenant, Tenant
------------------------
will cause Tenant's Architect to submit the Final Plans to the appropriate
governmental agencies for plan checking and the issuance of a building permit.
Tenant will cause Tenant's Architect to, with Landlord's cooperation, make any
changes to the Final Plans which are requested by the applicable governmental
authorities to obtain the building permit. After approval of the Final Plans no
further changes may be made without the prior written approval of both Landlord
and Tenant, and then only after agreement by Tenant to pay any excess costs
resulting from the design and/or construction of such changes. Tenant hereby
acknowledges that any such changes will be subject to the terms of Paragraph 10
below.
(e) CHANGES TO SHELL OF BUILDING. If the Final Plans or any amendment thereof
----------------------------
or supplement thereto shall require changes in the Building shell, the increased
cost of the Building shell work caused by such changes will be paid for by
Tenant or charged against the "Allowance" described in Paragraph 5 below.
(f) WORK COST ESTIMATE AND STATEMENT. Prior to the commencement of
--------------------------------
construction of any of the Tenant Improvements shown on the Final Plans,
Landlord will cause the Approved Contractor to submit to Tenant a written
estimate of the cost to complete the Tenant Improvement Work, which written
estimate will be based on the Final Plans taking into account any modifications
which may be required to reflect changes in the Final Plans required by the City
or County in which the Premises are located (the "Work Cost Estimate"). Tenant
will either approve the Work Cost Estimate or disapprove specific items and
submit to Landlord revisions to the Final Plans to reflect deletions of and/or
substitutions for such disapproved items. Submission and approval of the Work
Cost Estimate will proceed in accordance with the Work Schedule. Upon Tenant's
approval of the Work Cost Estimate (such approved Work Cost Estimate to be
hereinafter known as the "Work Cost Statement"), Landlord will have the right to
purchase materials and to commence the construction of the items included in the
Work Cost Statement pursuant to Paragraph 6 hereof. If the total costs reflected
in the Work Cost Statement exceed the Allowance described in Paragraph 5 below,
Tenant agrees to pay such excess, as additional rent, within five (5) business
days after Tenant's approval of the Work Cost Estimate. Throughout the course of
construction, any differences between the estimated Work Cost in the Work Cost
Statement and the actual Work Cost will be determined by Landlord and
appropriate adjustments and payments by Landlord or Tenant, as the case may be,
will be made within five (5) business days thereafter.
5. PAYMENT FOR THE TENANT IMPROVEMENTS.
-----------------------------------
(a) ALLOWANCE. Landlord hereby grants to Tenant a tenant improvement allowance
---------
(the "Allowance") of the amount set forth in Paragraph 1(p) of the Lease.
The Allowance is to be used only for:
(i) Payment of the cost of preparing the Space Plans and the Final Plans,
including mechanical, electrical, plumbing and structural drawings and of all
other aspects necessary to complete the Final Plans. The Allowance will not be
used for the payment of extraordinary design work not consistent with the scope
of the Standards (i.e., above-standard design work) or for payments to any other
consultants, designers or architects other than Landlord's engineers and
architect and/or Tenant's Architect.
(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:
(aa) Installation within the Premises of all partitioning, doors, floor
coverings, ceilings, wall coverings and painting, millwork and similar items;
(bb) All electrical wiring, lighting fixtures, outlets and switches, and other
electrical work necessary for the Premises;
(cc) The furnishing and installation of all duct work, terminal boxes, diffusers
and accessories necessary for the heating, ventilation and air conditioning
systems within the Premises, including the cost of meter and key control for
after-hour air conditioning;
(dd) Any additional improvements to the Premises required for Tenant's use of
the Premises including, but not limited to, odor control, special heating,
ventilation and air conditioning, noise or vibration control or other special
systems or improvements;
EXHIBIT "C"
-----------
Page 2
(ee) All fire and life safety control systems such as fire walls, sprinklers,
halon, fire alarms, including piping, wiring and accessories, necessary for
the Premises;
(ff) All plumbing, fixtures, pipes and accessories necessary for the Premises;
(gg) Testing and inspection costs; and
(hh) Fees for the contractor and tenant improvement coordinator including, but
not limited to, fees and costs attributable to general conditions associated
with the construction of the Tenant Improvements.
(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 and which construction is for the benefit of tenants and is customarily
performed by Landlord prior the execution of leases for space in the Building
for reasons of economics (examples of such construction would include, but not
be limited to, 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) EXCESS COSTS. The cost of each item referenced in Paragraph 5(a) above
------------
shall be charged against the Allowance. If the Work Cost exceeds the Allowance,
Tenant agrees to pay to Landlord such excess including fees for the Approved
Contractor and Landlord's standard five percent (5%) fee for the tenant
improvement coordinator associated with the supervision of such excess work
prior to the commencement of construction within ten (10) business days after
invoice therefor (less any sums previously paid by Tenant for such excess
pursuant to the Work Cost Estimate). In no event (except as provided in
subparagraph (e) below) will the Allowance be used to pay for Tenant's
furniture, artifacts, equipment, telephone systems or any other item of personal
property which is not affixed to the Premises.
(c) CHANGES. If, after the Final Plans have been prepared and the Work Cost
-------
Statement has been established, Tenant requires any changes or substitutions to
the Final Plans, any additional costs related thereto including fees for the
Approved Contractor and Landlord's standard five percent (5%) fee for the tenant
improvement coordinator associated with the supervision of such changes or
substitutions are to be paid by Tenant to Landlord prior to the commencement of
construction of the Tenant Improvements. Any changes to the Final Plans will be
approved by Landlord and Tenant in the manner set forth in Paragraph 4 above and
will, if necessary, require the Work Cost Statement to be revised and agreed
upon between Landlord and Tenant in the manner set forth in Subparagraph 4(f)
above. Landlord will have the right to decline Tenant's request for a change to
the Final Plans if such changes are inconsistent with the provisions of
Paragraph 4 above, or if the change would unreasonably delay construction of the
Tenant Improvements and the Commencement Date of the Lease.
(d) GOVERNMENTAL COST INCREASES. If increases in the cost of the Tenant
---------------------------
Improvements as set forth in the Work Cost Statement are due to requirements of
any governmental agency, Tenant agrees to pay Landlord the amount of such
increase including fees for the Approved Contractor and Landlord's standard five
percent (5%) fee for the tenant improvement coordinator associated with the
supervision of such additional work within ten (10) days of Landlord's written
notice; provided, however, that Landlord will first apply toward any such
increase any remaining balance of the Allowance.
(e) UNUSED ALLOWANCE AMOUNTS. Any unused portion of the Allowance upon
------------------------
completion of the Tenant Improvements will not be refunded to Tenant or be
available to Tenant as a credit against any obligations of Tenant under the
Lease unless Tenant has paid for excess costs as described in Subparagraphs
5(b), 5(c) or 5(d), in which case the unused Allowance may be applied toward
such excess cost amounts and paid to Tenant. Notwithstanding the foregoing,
Tenant may utilize up to $2.00 per Usable Square Foot of the unused Allowance
(as applied to the respective portions of the Premises as contemplated in
Paragraph 1(p) of the Lease) for the purchase of telephone and computer cabling
in the Premises, for the purchase of furniture for the Premises, cost of
installation of Building top signs, or to offset the costs incurred by Tenant in
moving in to the Premises.
6. CONSTRUCTION OF TENANT IMPROVEMENTS. Until Tenant approves the Final Plans
-----------------------------------
and Work Cost Statement, Landlord will be under no obligation to cause the
construction of any of the Tenant Improvements. Following Tenant's approval of
the Work Cost Statement described in Subparagraph 4(f) above and upon Tenant's
payment of the total amount by which such Work Cost Statement exceeds the
Allowance, if any, the Approved Contractor will commence and diligently proceed
with the construction of the Tenant Improvements, subject to Tenant Delays (as
described in Paragraph 9 below) and Force Majeure Delays (as described in
Paragraph 10 below).
7. FREIGHT/CONSTRUCTION ELEVATOR. Landlord will, consistent with its obligation
-----------------------------
to other tenants in the Building, if appropriate and necessary, make the
freight/construction elevator reasonably available to Tenant in connection with
initial decorating, furnishing and moving into the Premises. Tenant agrees to
pay for any after-hours staffing of the freight/construction elevator, if
needed.
8. COMMENCEMENT DATE AND SUBSTANTIAL COMPLETION.
--------------------------------------------
(a) COMMENCEMENT DATE. The Term of the Lease will commence on the date (the
-----------------
"Commencement Date") which is the earlier of: (i) the date Tenant moves into the
Premises to commence operation of its business in all or any portion of the
Premises; or (ii) the date the Tenant Improvements have been "substantially
completed" (as defined below); provided, however, that if substantial completion
of the Tenant Improvements is delayed as a result of any Tenant Delays described
in Paragraph 9 below, then the Commencement Date as would otherwise have been
established pursuant to this Subparagraph 8(a)(ii) will be accelerated by the
number of days of such Tenant Delays.
(b) SUBSTANTIAL COMPLETION; PUNCH-LIST. For purposes of Subparagraph 8(a)(ii)
----------------------------------
above, the Tenant Improvements will be deemed to be "substantially completed"
when Landlord's contractor certifies in writing to Landlord and Tenant that
Landlord: (a) is able to provide Tenant with reasonable access to the Premises;
(b) has substantially performed all of the Tenant Improvement Work required to
be performed by Landlord under this Work Letter Agreement, other than decoration
and minor
EXHIBIT "C"
-----------
Page 3
"punch-list" type items and adjustments which do not materially interfere with
Tenant's access to or use of the Premises; and (c) has obtained a temporary
certificate of occupancy or other required equivalent approval from the local
governmental authority permitting occupancy of the Premises. Within ten (10)
days after receipt of such certificate from Landlord's contractor, Tenant will
conduct a walk-through inspection of the Premises with Landlord and provide to
Landlord a written punch-list specifying those decoration and other punch-list
items which require completion, which items Landlord will thereafter diligently
complete.
(c) DELIVERY OF POSSESSION. Landlord agrees to deliver possession of the
----------------------
Premises to Tenant when the Tenant Improvements have been substantially
completed in accordance with Subparagraph (b) above. The parties estimate that
Landlord will deliver possession of the Premises to Tenant and the Term of this
Lease will commence on or before the estimated commencement date set forth in
the Work Schedule delivered to Tenant pursuant to Paragraph 2 above (the
"Projected Commencement Date"). Landlord agrees to use its commercially
reasonable efforts to cause the Premises to be substantially completed on or
before the Projected Commencement Date. Tenant agrees that if Landlord is unable
to deliver possession of the Premises to Tenant on or prior to the Projected
Commencement Date, the Lease will not be void or voidable, nor will Landlord be
liable to Tenant for any loss or damage resulting therefrom, but if such late
delivery is due to Landlord's fault or due to any Force Majeure Delay(s), then,
as Tenant's sole remedy, the Commencement Date and the Expiration Date of the
Term will be extended one (1) day for each day Landlord is delayed in delivering
possession of the Premises to Tenant.
9. TENANT DELAYS. For purposes of this Work Letter Agreement, "Tenant Delays"
-------------
means any delay in the completion of the Tenant Improvements resulting from any
or all of the following: (a) Tenant's failure to timely perform any of its
obligations pursuant to the Lease or 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 delivered by Landlord
to Tenant pursuant to this Work Letter Agreement; (b) Tenant's changes to Space
Plans or Final Plans after Landlord's approval thereof; (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 the Work Cost; 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 on behalf of Tenant, including, without limitation, Tenant's
Contractor (if Tenant's Contractor is the Approved Contractor) and Tenant's
Architect.
10. FORCE MAJEURE DELAYS. For purposes of this Work Letter, "Force Majeure
--------------------
Delays" means any actual delay in the construction of the Tenant Improvements,
which is beyond the reasonable control of Landlord or Tenant, as the case may
be, as described in Paragraph 33 of the Lease.
11. MISCELLANEOUS.
-------------
(a) DILIGENT CONSTRUCTION. If Tenant's Contractor is the Approved Contractor,
---------------------
then Tenant will cause Tenant's Contractor to promptly, diligently and
continuously pursue construction of the Tenant Improvements to successful
completion in full compliance with the Final Plans, the Work Cost Statement, the
Work Schedule and this Work Letter Agreement.
(b) COMPLIANCE WITH LAWS. If Tenant's Contractor is the Approved Contractor,
--------------------
Tenant will cause Tenant's Contractor to construct the Tenant Improvements in a
safe and lawful manner, in compliance with all applicable laws and regulations
of, and all licenses and permits issued by, all municipal and other governmental
bodies with jurisdiction; and if any portion of the Tenant Improvements is not
acceptable to any applicable governmental body, agency or department, Tenant
shall cause Tenant's Contractor to promptly repair or replace the same at
Tenant's expense, subject to the proper application of the Allowance as provided
herein.
(c) CONSTRUCTION DEFECTS. If Tenant's Contractor is the Approved Contractor,
--------------------
and other than as to Landlord's Subcontractors and Engineers, then Landlord will
have no responsibility for any defects in the Tenant Improvements, which will be
remedied by Tenant at its own expense. If Tenant's Contractor is the Approved
Contractor, and other than as to Landlord's Subcontractors and Engineers, Tenant
will reimburse Landlord for any costs or expenses incurred by Landlord by reason
of any defect in any portion of the Tenant Improvements constructed by Tenant's
Contractor, by reason of delays caused by the construction of the Tenant
Improvements, or by reason of inadequate cleanup following completion of the
Tenant Improvements.
(d) COORDINATION OF LEASE. Nothing herein shall be construed as (i)
---------------------
constituting Tenant, Tenant's Architect, or Tenant's Contractor as Landlord's
agent for any purpose whatsoever, or (ii) a waiver by Landlord of any of the
terms or provisions of the Lease.
(e) APPROVAL OF PLANS. Landlord will not check the drawings of Tenant's
-----------------
Architect for building code compliance. Approval of the Final Plans by Landlord
is not a representation that the drawings are in compliance with the
requirements of governing authorities. Approval of the Final Plans by Landlord
does not constitute an assumption of responsibility by Landlord (or any of its
consultants) for their accuracy, sufficiency or efficiency.
(f) WARRANTIES. If Tenant's Contractor is the Approved Contractor, then Tenant
----------
shall cause Tenant's Contractor to provide warranties for not less than one (1)
year against defects in workmanship, materials and equipment, which warranties
shall run to the benefit of, or shall be assignable to, Landlord.
///
///
///
EXHIBIT "C"
-----------
Page 4
(g) "AS-BUILT" DRAWINGS. Tenant shall cause Tenant's Architect to deliver to
------------------
Landlord "as-built" drawings (excluding furniture and equipment) no later
than sixty (60) days after the completion of Tenant's Work. The "as-built"
drawings shall include CAD Files (DXF format).
IN WITNESS WHEREOF, the undersigned Landlord and Tenant have caused this Work
Letter Agreement to be duly executed by their duly authorized representatives as
of the date of the Lease.
TENANT: LANDLORD:
NEW CENTURY FINANCIAL CORPORATION XXXX CENTER IRVINE NUMBER TWO,
a Delaware corporation a California limited partnership
By: By: Connecticut General Life Insurance Company,
------------------------------- General Partner
Print Name:
---------------------- By: Cigna Investments, Inc.
Print Title: Its Authorized Agent
----------------------
By: By:
------------------------------- ----------------------
Print Name: Print Name:
--------------------- ---------------------
Print Title: Print Title:
-------------------- ---------------------
EXHIBIT "C"
-----------
Page 5
NOTICE OF LEASE TERM DATES
AND TENANT'S PERCENTAGE
---------------------------
To:
--------------------------------------------
------------------------------------------------
------------------------------------------------
Date:
------------------
Re: Lease dated , 19 (the "Lease"), between
---------------- --- ______________,
Landlord, and , Tenant, concerning Suite
--------------------------------- ------
located at (the "Premises").
------------------------------------------
To Whom It May Concern:
In accordance with the subject Lease, we wish to advise and/or confirm as
follows:
1. That the Premises have been accepted by the Tenant as being substantially
complete in accordance with the subject Lease and that there is no deficiency in
construction except as may be indicated on the "Punch-List" prepared by Landlord
and Tenant, a copy of which is attached hereto.
2. That the Tenant has possession of the subject Premises and acknowledges
that under the provisions of the Lease the Commencement Date is ,
----------------
and the Term of the Lease will expire on .
-----------------------------
3. That in accordance with the Lease, rent commenced to accrue on .
-------------
4. If the Commencement Date of the Lease is other than the first day of the
month, the first billing will contain a pro rata adjustment. Each billing
thereafter will be for the full amount of the monthly installment as provided
for in the Lease.
5. Rent is due and payable in advance on the first day of each and every
month during the Term of the Lease. Your rent checks should be made payable to
at
--------------------------------------- -----------------------------------.
6. The number of Rentable square feet within Premises is
---------------------
square feet as determined by Landlord's architect in accordance with the terms
of the Lease.
7. The number of Rentable square feet within the Building is
-------------------
square feet as determined by Landlord's architect in accordance with the terms
of the Lease.
8. Tenant's Percentage, as adjusted based upon the number of Rentable Square
Feet within the Premises, is %.
-----
LANDLORD:
--------------------------------------
a
-------------------------------------
By:
-----------------------------------
Print Name:
------------------------
Print Title:
-----------------------
By:
-----------------------------------
Print Name:
------------------------
Print Title:
-----------------------
SAMPLE ONLY
[NOT FOR EXECUTION]
EXHIBIT "D"
-----------
DEFINITION OF OPERATING EXPENSES
--------------------------------
1. ITEMS INCLUDED IN OPERATING EXPENSES. The term "Operating Expenses" as used
------------------------------------
in the Lease to which this Exhibit "E" is attached means: all costs and
-----------
expenses of operation and maintenance of the Building and the Common Areas (as
such terms are defined in the Lease), as determined by standard accounting
practices, calculated assuming the Building is ninety-five percent (95%)
occupied, including the following costs by way of illustration but not
limitation, but excluding those items specifically set forth in Paragraph 3
below:
(a) Real Property Taxes and Assessments (as defined in Paragraph 2 below) and
any taxes or assessments imposed in lieu thereof;
(b) any and all assessments imposed with respect to the Building pursuant to
any covenants, conditions and restrictions affecting the Development, the
Common Areas or the Building;
(c) water and sewer charges and the costs of electricity, heating, ventilating,
air conditioning and other utilities;
(d) utilities surcharges and any other costs, levies or assessments resulting
from statutes or regulations promulgated by any government or quasi-
government authority in connection with the use, occupancy or alteration of
the Building or the Premises or the parking facilities serving the Building
or the Premises;
(e) costs of insurance obtained by Landlord;
(f) waste disposal and janitorial services;
(g) labor;
(h) reasonable costs incurred in the management of the Building, including,
without limitation: (i) supplies, (ii) wages and salaries (and payroll taxes and
similar governmental charges related thereto) of employees used in the
management, operation and maintenance of the Building, (iii) Building management
office rental, supplies, equipment and related operating expenses, and (iv) a
management/administrative fee determined as a percentage of the annual gross
revenues of the Building exclusive of the proceeds of financing or a sale of the
Building and an administrative fee for the management of the Development Common
Area determined as a percentage of Development Common Area Operating Expenses;
(i) supplies, materials, equipment and tools including rental of personal
property used for maintenance;
(j) repair and maintenance of the elevators and the structural portions of the
Building, including the plumbing, heating, ventilating, air-conditioning and
electrical systems installed or furnished by Landlord;
(k) maintenance, costs and upkeep of all parking and Development Common Areas;
(l) depreciation on a straight line basis and rental of personal property used
in maintenance;
(m) amortization on a straight line basis over the useful life [together with
interest at the Interest Rate on the unamortized balance] of all capitalized
expenditures which are: (i) reasonably intended to produce a reduction in
operating charges or energy consumption; or (ii) required under any governmental
law or regulation that was not applicable to the Building at the time it was
originally constructed; or (iii) for replacement of any Building equipment
needed to operate the Building at the same quality levels as prior to the
replacement;
(n) costs and expenses of gardening and landscaping;
(o) maintenance of signs (other than signs of tenants of the Building);
(p) personal property taxes levied on or attributable to personal property used
in connection with the Building or the Common Areas;
(q) reasonable accounting, audit, verification, legal and other consulting
fees; and
(r) costs and expenses of repairs, resurfacing, repairing, maintenance,
painting, lighting, cleaning, refuse removal, security and similar items,
including appropriate reserves.
When calculating Operating Expenses for purposes of establishing Tenant's
Operating Expense Allowance, Operating Expenses shall not include Real Property
Taxes and Assessments attributable to special assessments, charges, costs, or
fees or due to modifications or changes in governmental laws or regulations
including, but not limited to, the institution of a split tax roll, and shall
exclude market-wide labor-rate increases due to extraordinary circumstances
including, but not limited to, boycotts and strikes and utility increases due to
extraordinary circumstances including, but not limited to, conservation
surcharges, boycotts, embargoes or other shortages.
2. REAL PROPERTY TAXES AND ASSESSMENTS. The term "Real Property Taxes and
-----------------------------------
Assessments", as used in this Exhibit "E", means: any form of assessment,
-----------
license fee, license tax, business license fee, commercial rental tax, levy,
charge, improvement bond, 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, Building, Common Areas or the Development
(as such terms are defined in the Lease), adjusted to reflect an assumption that
the Building is fully assessed for real property tax purposes as a completed
building ready for occupancy, including the following by way of illustration but
not limitation:
EXHIBIT "E"
-----------
Page 1
(a) any tax on Landlord's "right" to rent or "right" to other income from the
Premises or as against Landlord's business of leasing the Premises;
(b) 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 property tax, it being acknowledged by Tenant and
Landlord that Proposition 13 was adopted by the voters of the State of
California in the June, 1978 election and that assessments, taxes, fees, levies
and charges 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;
(c) any assessment, tax, fee, levy or charge allocable to or measured by the
area of the Premises or other premises in the Building or the rent payable by
Tenant hereunder or other tenants of the Building, including, without
limitation, any gross receipts tax or excise tax levied by state, city or
federal government, or any political subdivision thereof, with respect to the
receipt of such rent, or upon or with respect to the possession, leasing,
operation, management, maintenance, alteration, repair, use or occupancy by
Tenant of the Premises, or any portion thereof but not on Landlord's other
operations;
(d) 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 Premises; and/or
(e) any assessment, tax, fee, levy or charge by any governmental agency related
to any transportation plan, fund or system (including assessment districts)
instituted within the geographic area of which the Building is a part.
Notwithstanding the foregoing, if at any time after the Commencement Date, the
amount of Real Property Taxes and Assessments decreases, then for purposes of
all subsequent Lease Years, including the Lease Year in which such decrease in
Real Property Taxes and Assessments occurs, Tenant's Operating Expense Allowance
shall be decreased by an amount equal to such decrease in Real Property Taxes
and Assessments.
3. ITEMS EXCLUDED FROM OPERATING EXPENSES. Notwithstanding the provisions of
--------------------------------------
Paragraphs 1 and 2 above to the contrary, "Operating Expenses" will not
include:
(a) Landlord's federal or state income, franchise, inheritance or estate taxes;
(b) any ground lease rental;
(c) costs incurred by Landlord for the repair of damage to the Building to the
extent that Landlord is reimbursed by insurance or condemnation proceeds or by
tenants, warrantors or other third persons;
(d) depreciation, amortization and interest payments, except as specifically
provided herein, and except on materials, tools, supplies and vendor-type
equipment purchased by Landlord to enable Landlord to supply services Landlord
might otherwise contract for with a third party, where such depreciation,
amortization and interest payments would otherwise have been included in the
charge for such third party's services, all as determined in accordance with
standard accounting practices;
(e) brokerage commissions, finders' fees, attorneys' fees, space planning costs
and other costs incurred by Landlord in leasing or attempting to lease space in
the Building;
(f) costs of a capital nature, including, without limitation, capital
improvements, capital replacements, capital repairs, capital equipment and
capital tools, all as determined in accordance with standard accounting
practices; provided, however, the capital expenditures set forth in Subparagraph
1(m) above will in any event be included in the definition of Operating
Expenses;
(g) interest, principal, points and fees on debt or amortization on any
mortgage, deed of trust or other debt encumbering the Building or the
Development;
(h) costs, including permit, license and inspection costs, incurred with respect
to the installation of tenant improvements for tenants in the Building
(including the original Tenant Improvements for the Premises), or incurred in
renovating or otherwise improving, decorating, painting or redecorating space
for tenants or other occupants of the Building, including space planning and
interior design costs and fees;
(i) attorneys' fees and other costs and expenses incurred in connection with
negotiations or disputes with present or prospective tenants or other occupants
of the Building; provided, however, that Operating Expenses will include those
attorneys' fees and other costs and expenses incurred in connection with
negotiations, disputes or claims relating to items of Operating Expenses,
enforcement of rules and regulations of the Building, and such other matters
relating to the maintenance of standards required of Landlord under the Lease;
(j) except for the administrative/management fees described in Subparagraph
1(h) above, costs of Landlord's general corporate overhead;
(k) all items and services for which Tenant or any other tenant in the Building
reimburses Landlord (other than through operating expense pass-through
provisions);
(l) electric power costs for which any tenant directly contracts with the local
public service company; and
(m) costs arising from Landlord's charitable or political contributions.
EXHIBIT "E"
-----------
Page 2
EXHIBIT "E"
-----------
Page 3
STANDARDS FOR UTILITIES AND SERVICES
------------------------------------
The following standards for utilities and services are in effect. Landlord
reserves the right to adopt nondiscriminatory modifications and additions
hereto.
Subject to the terms and conditions of the Lease and provided Tenant remains in
occupancy of the Premises, Landlord will provide or make available the following
utilities and services:
1. Provide non-attended automatic elevator facilities Monday through Friday,
except holidays, from 8 a.m. to 6 p.m., and have one elevator available for
Tenant's use at all other times.
2. On Monday through Friday, except holidays, from 8 a.m. to 6 p.m. and on
Saturday from 8 a.m. to 12 Noon (and other times for a reasonable additional
charge to be fixed by Landlord, which charge shall be $45.00 per hour per floor
during the original Lease Term), 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 extended to the full length of the window opening and adjusted to a 45
degree angle upwards. Landlord will not be responsible for room temperatures if
Tenant does not keep all window coverings in the Premises extended to the full
length of the window opening and adjusted to a 45 degree angle upwards 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 chilled and hot water air conditioning supply lines of the
Building. Tenant further agrees that neither Tenant nor its servants, employees,
agents, visitors, licensees or contractors shall at any time enter the
mechanical installations or facilities of the Building or the Development 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 will 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 Exhibit, including
keeping window coverings extended to the full length of the window opening and
adjusted to a 45 degree angle upwards. Such work will be charged at hourly rates
equal to then-current journeyman's wages for air conditioning mechanics.
3. Landlord will make available to the Premises, 24 hours per day, seven days a
week, electric current as required by the Building standard office lighting and
fractional horsepower office business machines including copiers, personal
computers and word processing equipment in an amount not to exceed six (6) xxxxx
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, such cost will be
established by an independent licensed engineer selected in Landlord's
reasonable discretion, whose fee shall be shared equally by Landlord and Tenant.
Tenant agrees not to use any apparatus or device in, upon or about the Premises
(other than standard office business machines, personal computers and word
processing equipment) 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 the 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 will
constitute a breach of the obligation to pay rent under this Lease and will
entitle Landlord to the rights therein granted for such breach. Tenant's use of
electric current will never exceed the capacity of the feeders to the Building,
or the risers or wiring installation and Tenants will not install or use or
permit the installation or use of any computer or electronic data processing
equipment in the Premises (except standard office business machines, personal
computers and word processing equipment) without the prior written consent of
Landlord.
4. Water will be available in public areas for drinking and lavatory purposes
only, but if Tenant requires, uses or consumes water for any purpose in addition
to ordinary drinking and lavatory purposes, of which fact Tenant constitutes
Landlord to be the sole judge, Landlord may install a water meter and thereby
measure Tenant's water consumption for all purposes. Tenant agrees to pay
Landlord for the cost of the meter and the cost of the installation thereof and
throughout the duration of Tenant's occupancy Tenant will 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 such 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 will be deemed to
be additional rent payable by Tenant and collectible by Landlord as such.
5. Landlord will provide janitor service to the Premises, provided the same are
used exclusively as offices, and are kept reasonably in order by Tenant, and
unless otherwise agreed to by Landlord and 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 will 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 agrees to 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.
6. Landlord reserves the right to stop service of the elevator, plumbing,
ventilation, air conditioning and electrical systems, when necessary, by reason
of accident or emergency or for repairs, alterations or improvements, when in
the judgment of Landlord such actions are desirable or necessary to be made,
until said repairs, alterations or improvements shall have been completed, and
Landlord will 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 by reason of the 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 supply. It is expressly understood and agreed that any covenants
on Landlord's part to furnish any services pursuant to any of the terms,
covenants, conditions, provisions or agreements of this Lease, or to
EXHIBIT "F"
-----------
perform any act or thing for the benefit of Tenant, will 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 "F"
-----------
ESTOPPEL CERTIFICATE
--------------------
The undersigned, ("Tenant"),
--------------------------------------------------
hereby certifies to , as follows:
---------------------------------------------
1. Attached hereto is a true, correct and complete copy of that certain lease
dated , 1993, between , a
--------- -----------------------------------
("Landlord") and Tenant (the "Lease"), regarding the premises located at
(the "Premises"). 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 will 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 terms or agreements, copies of which are
attached hereto:
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------.
5. Tenant has accepted and is now in possession of the Premises.
6. Tenant and Landlord acknowledge that Landlord's interest in 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 Monthly Base Rent is $ .
-----------
8. The amount of Security Deposit (if any) is $ . No other
-----------
security deposits have been made except as follows:
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------.
9. Tenant is paying the full lease rental which has been paid in full as of
the date hereof. No rent or other charges under the Lease have been paid for
more than thirty (30) days in advance of its due date except as follows:
10. All work required to be performed by Landlord under the Lease has been
completed except as follows:
---------------------------------------------------
-------------------------------------------------------------------------------.
11. There are no defaults on the part of the Landlord or Tenant under the Lease
except as follows:
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------.
12. Neither Landlord nor Tenant has any defense as to its obligations under
the Lease and claims no set-off or counterclaim against the other party except
as follows:
--------------------------------------------------------------------
-------------------------------------------------------------------------------.
13. Tenant has no right to any concession (rental or otherwise) or similar
compensation in connection with renting the space it occupies other than as
provided in the Lease except as follows:
---------------------------------------
-------------------------------------------------------------------------------.
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 relying upon the representations herein made in funding a loan to Landlord in
purchasing the Premises.
IN WITNESS WHEREOF, this certificate has been duly executed and delivered by
the authorized officers of the undersigned as of , 19 .
---------------- --
TENANT:
----------------------------------------
a
---------------------------------------
By:
-------------------------------------
Print Name: SAMPLE ONLY
----------------------------
Title: [NOT FOR EXECUTION]
--------------------------------
By:
--------------------------------------
Print Name:
----------------------------
Title:
----------------------------
EXHIBIT "G"
-----------
RULES AND REGULATIONS
---------------------
A. GENERAL RULES AND REGULATIONS. The following rules and regulations govern
-----------------------------
the use of the Building and the Development Common Areas. Tenant will be bound
by such rules and regulations and agrees to cause Tenant's Authorized Users, its
employees, subtenants, assignees, contractors, suppliers, customers and invitees
to observe the same.
1. Except as specifically provided in the Lease to which these Rules and
Regulations are attached, no sign, placard, picture, advertisement, name or
notice may be installed or displayed on any part of the outside or inside of the
Building or the Development without the prior written consent of Landlord.
Landlord will 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 are to be printed, painted, affixed or inscribed
at the expense of Tenant and under the direction of Landlord by a person or
company designated or 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 will immediately discontinue
such use. Tenant agrees not to place anything against or near glass partitions
or doors or windows which may appear unsightly from outside the Premises
including from within any interior common areas.
3. Tenant will not obstruct any sidewalks, halls, passages, exits, entrances,
elevators, escalators, or stairways of the Development. The halls, passages,
exits, entrances, elevators and stairways are not open to the general public,
but are open, subject to reasonable regulations, to Tenant's business invitees.
Landlord will 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
Development and its tenants, provided that nothing herein contained will 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 will go upon the roof of the Building.
4. Tenant will not obtain for use on the Premises ice, food, food vendors,
beverage, towel or other similar services or accept barbering or bootblacking
service upon the Premises, except at such reasonable hours and under such
reasonable regulations as may be fixed by Landlord. Landlord expressly reserves
the right to absolutely prohibit solicitation, canvassing, distribution of
handbills or any other written material, peddling, sales and displays of
products, goods and wares in all portions of the Development except as may be
expressly permitted under the Lease. Landlord reserves the right to restrict
and regulate the use of the common areas of the Development and Building by
invitees of tenants providing services to tenants on a periodic or daily basis
including food and beverage vendors. Such restrictions may include limitations
on time, place, manner and duration of access to a tenant's premises for such
purposes. Without limiting the foregoing, Landlord may require that such
parties use service elevators, halls, passageways and stairways for such
purposes to preserve access within the Building for tenants and the general
public.
5. Landlord reserves the right to require tenants to periodically provide
Landlord with a written list of any and all business invitees which periodically
or regularly provide goods and services to such tenants at the premises.
Landlord reserves the right to preclude all vendors from entering or conducting
business within the Building and the Development if such vendors are not listed
on a tenant's list of requested vendors.
6. Landlord reserves the right to exclude from the Building between the hours
of 6 p.m. and 8 a.m. the following business 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 or has a pass or is properly identified. Tenant will be
responsible for all persons for whom it requests passes and will be liable to
Landlord for all acts of such persons. Landlord will 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.
7. The directory of the Building or the Development 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.
8. All cleaning and janitorial services for the Development and the Premises
will be provided exclusively through Landlord, and except with the written
consent of Landlord, no person or persons other than those approved by Landlord
will be employed by Tenant or permitted to enter the Development for the purpose
of cleaning the same. Tenant will not cause any unnecessary labor by
carelessness or indifference to the good order and cleanliness of the Premises.
9. Landlord will furnish Tenant, free of charge, with two keys to each entry
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 any new additional lock or bolt on any door
of the Premises. Tenant, upon the termination of its tenancy, will deliver to
Landlord the keys to all doors which have been furnished to Tenant, and in the
event of loss of any keys so furnished, will pay Landlord therefor.
10. If Tenant requires telegraphic, telephonic, burglar alarm, antennae or
similar services, it will first obtain Landlord's approval, and comply with,
Landlord's reasonable rules and requirements applicable to such services, which
may include separate licensing by, and fees paid to, Landlord.
11. Freight elevator(s) will be available for use by all tenants in the
Building, subject to such reasonable scheduling as Landlord, in its discretion,
deems 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 will, 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
EXHIBIT "H"
-----------
Page 1
or Sunday. Deliveries during normal office hours shall be limited to
normal office supplies and other small items. No deliveries will be made which
impede or interfere with other tenants or the operation of the Building.
12. Tenant will 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 will have the right to reasonably prescribe the
weight, size and position of all safes, heavy equipment, files, materials,
furniture or other property brought into the Building. Heavy objects will, if
considered necessary by Landlord, stand on such platforms as determined by
Landlord to be necessary to properly distribute the weight, which platforms will
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 any tenants in the Building or Landlord, are to be placed and
maintained by Tenant, at Tenant's expense, on vibration eliminators or other
devises sufficient to eliminate noise or vibration. Tenant will be responsible
for all structural engineering required to determine structural load, as well as
the expense thereof. The persons employed to move such equipment in or out of
the Building must be reasonably acceptable to Landlord. Landlord will not be
responsible for loss of, 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 will be repaired at the expense of Tenant.
13. Tenant will 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 will 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 will Tenant bring into or keep in or about the Premises
any birds or animals.
14. Tenant will not use any method of heating or air conditioning other than
that supplied by Landlord or otherwise existing prior to the date of this Lease
without Landlord's prior written consent.
15. Tenant will 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
will refrain from attempting to adjust controls. Tenant will keep corridor
doors closed, and shall keep all window coverings pulled down.
16. Landlord reserves the right, exercisable without notice and without
liability to Tenant, to change the name and street address of the Building.
Without the prior written consent of Landlord, which Landlord may deny with or
without cause, Tenant will not use the name, photograph or likeness of the
Building or the Development in connection with or in promoting or advertising
the business of Tenant except as Tenant's address.
17. Tenant will close and lock the doors of its Premises and entirely shut off
all water faucets or other water apparatus, and lighting or gas before Tenant
and its employees leave the Premises. Tenant will be responsible for any damage
or injuries sustained by other tenants or occupants of the Building or by
Landlord for noncompliance with this rule.
18. The toilet rooms, toilets, urinals, wash bowls and other apparatus will
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 any violation of this
rule will be borne by the tenant who, or whose employees or invitees, break this
rule. Cleaning of equipment of any type is prohibited. Shaving is prohibited.
19. Tenant will 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 will not use the Premises for any
business or activity other than that specifically provided for in this Lease.
Tenant will not conduct, nor permit to be conducted, either voluntarily or
involuntarily, any auction upon the Premises without first having obtained
Landlord's prior written consent, which consent Landlord may withhold in its
sole and absolute discretion.
20. Tenant will not install any radio or television antenna, loudspeaker,
satellite dishes or other devices on the roof(s) or exterior walls of the
Building or the Development. Tenant will not interfere with radio or television
broadcasting or reception from or in the Development or elsewhere.
21. Except for the ordinary hanging of pictures and wall decorations, Tenant
will 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. Landlord
reserves the right to direct electricians as to where and how telephone and
telegraph wires are to be introduced to the Premises. Tenant will not cut or
bore holes for wires. Tenant will 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.
22. Tenant will not install, maintain or operate upon the Premises any vending
machines without the written consent of Landlord, which consent Landlord will
not unreasonably withhold.
23. Landlord reserves the right to exclude or expel from the Development any
person who, in Landlord's judgment, 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 will store all its trash and garbage within its Premises or in other
facilities provided by Landlord. Tenant will 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
is to be made in accordance with directions issued from time to time by
Landlord.
25. The Premises will not be used for lodging or 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 will be done or permitted on the Premises without
Landlord's consent, except the use by Tenant of Underwriters'
EXHIBIT "H"
-----------
Page 2
Laboratory approved equipment for brewing coffee, tea, hot chocolate and similar
beverages shall be permitted, and the use of a microwave oven for employees use
will 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. Neither Tenant nor any of its employees, agents, customers and invitees may
use in any space or in the public halls of the Building or the Development any
hand truck except those equipped with rubber tires and side guards or such other
material-handling equipment as Landlord may approve. Tenant will not bring any
other vehicles of any kind into the Building.
27. Tenant agrees to comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental agency.
28. 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.
29. To the extent Landlord reasonably deems it necessary to exercise exclusive
control over any portions of the Common Areas for the mutual benefit of the
tenants in the Building or the Development, Landlord may do so subject to
reasonable, non-discriminatory additional rules and regulations.
30. Landlord may prohibit smoking in the Building and may require Tenant and
any of its employees, agents, clients, customers, invitees and guests who desire
to smoke, to smoke within designated smoking areas within the Development.
31. Tenant's requirements will be attended to only upon appropriate application
to Landlord's asset management office for the Development by an authorized
individual of Tenant. Employees of Landlord will 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.
32. These Rules and Regulations are in addition to, and will not be construed
to in any way modify or amend, in whole or in part, the terms, covenants,
agreements and conditions of the Lease. 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 will be construed as a waiver of such Rules and
Regulations in favor of Tenant or any other tenant, nor prevent Landlord from
thereafter enforcing any such Rules and Regulations against any or all of the
tenants of the Development.
33. Landlord reserves the right to make such other and reasonable and non-
discriminatory Rules and Regulations as, in its judgment, may from time to time
be needed for safety and security, for care and cleanliness of the Development
and for the preservation of good order therein. Tenant agrees to abide by all
such Rules and Regulations herein above stated and any additional reasonable and
non-discriminatory rules and regulations which are adopted. Tenant is
responsible for the observance of all of the foregoing rules by Tenant's
employees, agents, clients, customers, invitees and guests.
B. PARKING RULES AND REGULATIONS. The following rules and regulations govern
-----------------------------
the use of the parking facilities which serve the Building. Tenant will be
bound by such rules and regulations and agrees to cause its employees,
subtenants, assignees, contractors, suppliers, customers and invitees to observe
the same:
1. Tenant will not permit or allow any vehicles that belong to or are controlled
by Tenant or Tenant's employees, subtenants, customers or invitees to be loaded,
unloaded or parked in areas other than those designated by Landlord for such
activities. No vehicles are to be left in the parking areas overnight and no
vehicles are to be parked in the parking areas other than normally sized
passenger automobiles, motorcycles and pick-up trucks. No extended term storage
of vehicles is permitted.
2. Vehicles must be parked entirely within painted stall lines of a single
parking stall.
3. All directional signs and arrows must be observed.
4. The speed limit within all parking areas shall be five (5) miles per hour.
5. Parking is prohibited: (a) in areas not striped for parking; (b) in aisles
or on ramps; (c) where "no parking" signs are posted; (d) in cross-hatched
areas; and (e) in such other areas as may be designated from time to time by
Landlord or Landlord's parking operator.
6. Landlord reserves the right, without cost or liability to Landlord, to tow
any vehicle if such vehicle's audio theft alarm system remains engaged for an
unreasonable period of time.
7. Washing, waxing, cleaning or servicing of any vehicle in any area not
specifically reserved for such purpose is prohibited.
8. Landlord may refuse to permit any person to park in the parking facilities
who violates these rules with unreasonable frequency, and any violation of these
rules shall subject the violator's car to removal, at such car owner's expense.
Tenant agrees to use its best efforts to acquaint its employees, subtenants,
assignees, contractors, suppliers, customers and invitees with these parking
provisions, rules and regulations.
9. Parking stickers, access cards, 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. Parking identification devices, if utilized by
Landlord, 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.
Parking identification devices, if any, are not transferable and any device in
the possession of an unauthorized holder will be void. Landlord reserves the
right to refuse the sale of monthly stickers or other parking identification
devices to Tenant or any of its agents, employees or representatives who
willfully refuse to comply with these rules and regulations and all unposted
city, state or federal ordinances, laws or agreements.
EXHIBIT "H"
-----------
Page 3
10. Loss or theft of parking identification devices or access cards must be
reported to the management office in the Development immediately, and a lost or
stolen report must be filed by the Tenant or user of such parking identification
device or access card at the time. Landlord has the right to exclude any
vehicle from the parking facilities that does not have a parking identification
device or valid access card. Any parking identification device or access card
which is reported lost or stolen and which is subsequently found in the
possession of an unauthorized person will be confiscated and the illegal holder
will be subject to prosecution.
11. All damage or loss claimed to be the responsibility of Landlord must be
reported, itemized in writing and delivered to the management office located
within the Development within ten (10) business days after any claimed damage or
loss occurs. Any claim not so made is waived. Landlord is not responsible for
damage by water or fire, or for the acts or omissions of others, or for articles
left in vehicles. In any event, the total liability of Landlord, if any, is
limited to Two Hundred Fifty Dollars ($250.00) for all damages or loss to any
car. Landlord is not responsible for loss of use.
12. The parking operators, managers or attendants are not authorized to make or
allow any exceptions to these rules and regulations, without the express written
consent of Landlord. Any exceptions to these rules and regulations made by the
parking operators, managers or attendants without the express written consent of
Landlord will not be deemed to have been approved by Landlord.
13. Landlord reserves the right, without cost or liability to Landlord, to tow
any vehicles which are used or parked in violation of these rules and
regulations.
14. Landlord reserves the right from time to time to modify and/or adopt such
other reasonable and non-discriminatory rules and regulations for the parking
facilities as it deems reasonably necessary for the operation of the parking
facilities.
EXHIBIT "H"
-----------
Page 4
[SAMPLE ONLY; NOT FOR EXECUTION]
--------------------------------
SATELLITE ANTENNA LICENSE AGREEMENT
-----------------------------------
This SATELLITE ANTENNA LICENSE AGREEMENT ("Agreement") is made as of the ___ day
of ____________, 199__ by and between XXXX CENTER IRVINE NUMBER TWO, a
California limited partnership ("Licensor"), and NEW CENTURY FINANCIAL
CORPORATION, a Delaware corporation ("Licensee").
R E C I T A L S :
A. Licensor is the owner of certain real property located at 00000 Xxx Xxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxx ("Property"), and the office building ("Building")
and parking structure situated thereon.
B. Licensee is a tenant of Licensor in the Building pursuant to that certain
Office Building Lease dated _______________, 19___ (as amended, the "Lease"),
and Licensee desires to obtain permission to place a satellite antenna on the
roof of the Building.
C. The parties agree that Licensee's right to perform certain acts on the
Property or the Building are upon and subject to the terms, covenants, and
conditions herein set forth, and Licensee covenants as a material part of the
consideration for this Agreement to keep and perform each and all said terms,
covenants, and conditions and the parties further agree that this Agreement is
made upon condition of such performance.
NOW, THEREFORE, in consideration of the mutual promises hereinafter set forth
the parties hereto agree as follows:
Incorporation of Recitals. The foregoing Recitals are incorporated herein
-------------------------
by this reference.
Grant of License. Licensor hereby grants Licensee a license to place on
----------------
the roof of the Building, a satellite antenna, the specifications for which are
described in Exhibit "A" to this Agreement, together with related cabling and
hardware ("Satellite Antenna"). The Satellite Antenna shall be installed on the
roof of the Building at the location and in a manner described in Exhibit "B".
Term. The term of this Agreement shall be coterminous with the term of the
----
aforementioned Lease. Licensor, after the lapse of applicable cure periods,
shall have the right to terminate this Agreement in the event of a default
hereunder or under the Lease by Licensee, in addition to all other rights and
remedies available to Licensor at law or in equity.
Description of License. This Agreement shall not be construed as a lease,
----------------------
nor as a grant to Licensee of any present or any future 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 Agreement against
Licensor's will. Licensee hereby assumes any and all costs, expenses,
liabilities and risks associated with the installation, use, maintenance and
removal of the Satellite Antenna, and restoration of the Building upon such
removal, and any other related costs and expenses resulting therefrom or
relating thereto. Licensee acknowledges that (i) Licensor retains the right to
install within the Property and use the roof of the Building for the
installation of other communication facilities (except that Licensor will not
intentionally interfere to an unreasonable extent with Licensee's use of the
Satellite Antenna), and (ii) the signal which is to be received and/or sent by
the Satellite Antenna may be lost or impaired as a result of on-going or future
construction of nearby buildings or parking facilities on or about the
development of which the Property is a part. Licensee hereby assumes any and
all risks associated with any loss or impairment of the signal, or any other
related cost or inconvenience resulting therefrom or relating thereto. 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
protect, defend, indemnify and hold Licensor free and harmless from and against
any obligation to any party which may claim any right as to the maintenance or
use of the Satellite Antenna, or the receipt or delivery of any signal
therefrom. The indemnity obligations of Licensee under this Agreement shall
survive the termination or expiration of this Agreement and the Lease.
Assignment. This Agreement is personal to Licensee. It is not assignable
----------
separately or together with any permitted subletting or assignment of the Lease,
if any, and any attempt to assign this Agreement will render it null and void.
License Fee. Licensee agrees to pay Licensor $250.00 per month, on the
-----------
first day of each month, in advance ("License Fee"), for every month in which
this Agreement is in effect. The License Fee shall be considered additional
rent due under the Lease. The License Fee shall be increased annually by 4%,
compounded.
Maintenance and Repair. Licensee shall be solely responsible for the costs
----------------------
of installing, maintaining, removing and repairing the Satellite Antenna.
Licensee agrees to maintain the Satellite Antenna in a clean, neat and sightly
condition. 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
reasonable discretion shall have the right upon the termination of this
Agreement to require that all cables installed by Licensee in and through the
Building in connection with the installation and use of the Satellite Antenna
(which cables shall be shielded to prevent interference with other tenants'
cables) 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
appurtenant to the installation of the Satellite Antenna.
Insurance. Licensee agrees to reimburse Licensor, upon demand, for any
---------
additional cost of insurance attributed to the installation or existence of the
Satellite Antenna on the Building. Additionally, Licensee and any contractors
(who shall be subject to Licensor's prior approval) retained by Licensee to
perform work on the Property shall maintain commercial liability insurance
including the hazards of premises and operations, independent contractors, and
blanket contractual liability (covering Licensee's indemnity contained herein),
in an amount of not less than $2,000,000 per occurrence and general aggregate.
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 a primary and non-contributory basis under Licensee's commercial
liability insurance. Said insurance shall not be cancelled or reduced without
Licensor being notified in writing at least thirty (30) days prior thereto.
EXHIBIT "I"
-----------
Page 1
Utilities. Licensee shall pay for all utilities hook-up charges necessary
---------
for the installation of the Satellite Antenna, and shall pay for the maintenance
and service of said utilities. Licensor shall allow Licensee, at Licensee's
sole cost, to hook up the Satellite Antenna to the Building electrical system in
accordance with the provisions of the Lease and hereof, and under the
supervision of Licensor.
Governmental Approvals. Licensee shall obtain all governmental approvals
----------------------
and permits required for the installation and operation of the Satellite Antenna
and shall submit same to Licensor prior to the installation of the Satellite
Antenna (including, without limit, evidence that the Satellite Antenna and the
location thereof on the Building and all appurtenances thereto comply with all
local zoning and building codes), and Licensee agrees to maintain the same in
effect throughout the term of this Agreement. Licensee acknowledges that
Licensor has made no representations or warranties to Licensee concerning the
appropriateness of the Satellite Antenna under applicable building or zoning
codes.
Notice Before Installation. Licensee shall pay when due all claims for
--------------------------
labor or materials furnished or alleged to have been furnished in connection
with the Satellite Antenna or the installation thereof. Licensee agrees to give
Licensor not less than ten (l0) days notice prior to the commencement of any
work at the Building. All work performed in connection with the installation of
the Satellite Antenna is to be performed strictly in accordance with the plans
and specifications therefor as identified in Exhibits "A" and "B" attached
hereto. Licensor shall have the right to post notices of non-responsibility in
or on the Building as provided by law.
Removal. Upon termination of this Agreement for any reason whatsoever, or
-------
in the event Licensee otherwise elects to proceed as follows, Licensee shall
remove the Satellite Antenna, cables (unless Licensor elects otherwise, as
provided herein) and all other improvements associated therewith at Licensee's
own cost and expense, and Licensee shall repair any damage occasioned by the
installation or removal thereof. If Licensee fails to perform its obligations
pursuant to this Paragraph 12, 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.
Indemnification. Licensee shall indemnify, defend, protect and hold
---------------
harmless Licensor against and from any and all claims arising from or relating
to (i) the Satellite Antenna and its related improvements and the installation,
operation, maintenance and repair thereof, (ii) any breach or default in the
performance of any obligation on Licensee's part to be performed under the terms
of this Agreement, or arising from or relating to any act, neglect, fault or
omission of Licensee relating to the Satellite Antenna, and (iii) electrical
power interruptions or interruptions with communication facilities of other
Building tenants. For the purposes hereof, "claims" shall be defined to include
without limit, obligations, liabilities, claims, liens, encumbrances, actions,
causes of action, losses, damages, costs, expenses and attorneys' fees and
costs; 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 reasonably 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 relative to the Satellite Antenna from any cause whatsoever except to
the extent of the sole gross negligence or willful misconduct of Licensor.
Entire Agreement. This Agreement contains the entire agreement between the
----------------
parties relating to the subject matter hereof. Any oral representations or
modifications concerning this Agreement shall be of no force in effect. Any
subsequent modification must be in writing, signed by all the parties.
Attorneys' Fees. In the event of any controversy, claim or dispute
---------------
relating to this Agreement, or breach hereof, the prevailing party shall be
entitled to recover from the losing party reasonable expenses, attorneys' fees
and all costs of suit.
Severability. Any provision of this Agreement 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.
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 term, 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.
Time. Time is of the essence with respect to the performance of every
----
provision of this Agreement.
IN WITNESS HEREOF the parties hereto have executed this Agreement as of the
date first written above.
XXXX CENTER IRVINE NUMBER TWO NEW CENTURY FINANCIAL CORPORATION,
a California limited partnership a Delaware corporation
By: Connecticut General Life Insurance Company, By:
General Partner --------------------------------
Print Name:
---------------------
By: Cigna Investments, Inc., Print Title:
--------------------
Its Authorized Agent
By: By:
-------------------------------- -------------------------------
Print Name: Print Name:
--------------------------------- ------------------
Print Title: Print Title:
--------------------------------- ------------------
[EXHIBITS "A" AND "B" NEED TO BE ATTACHED]
[SAMPLE ONLY; NOT FOR EXECUTION]
--------------------------------
EXHIBIT "I"
-----------
Page 2
FORM LETTER OF CREDIT
---------------------
[BANK'S LETTERHEAD]
XXXX CENTER IRVINE NUMBER TWO
C/X XXXX
00000 XXX XXXXXX, XXXXX 000
XXXXXX, XX 00000
ATTN: 18400 BUILDING MANAGER
DEAR SIR:
WE HEREBY ESTABLISH AND ISSUE OUR IRREVOCABLE STANDBY LETTER OF CREDIT
NO. ______ (THE "CREDIT") IN YOUR FAVOR FOR THE ACCOUNT OF NEW CENTURY MORTGAGE
CORPORATION. WE HEREBY IRREVOCABLY AUTHORIZE YOU TO DRAW UPON US IN ONE OR MORE
SIGHT DRAFTS UP TO THE AGGREGATE AMOUNT OF: (A) FROM THE DATE OF ISSUANCE
HEREOF UNTIL DECEMBER 1, 1997: $1,000,000.00; AND (B) FROM DECEMBER 1, 1997
UNTIL THE FIRST ANNIVERSARY OF THE DATE OF ISSUANCE OF THIS CREDIT (THE "EXPIRY
DATE"): $1,221,320.00. THE STEP-UP IN CREDIT AMOUNT CONTEMPLATED BY THE
PRECEDING SENTENCE IS REFERRED TO IN THIS CREDIT AS THE "STEP-UP FUNCTION." .
YOUR DRAFT MUST BE ACCOMPANIED BY A WRITTEN CERTIFICATE STATING:
"NEW CENTURY FINANCIAL CORPORATION, OR ITS ASSIGN ("TENANT"), HAS FAILED
TO PAY RENT OR PERFORM ONE OR MORE OF ITS OBLIGATIONS UNDER THAT CERTAIN
OFFICE BUILDING LEASE (THE "LEASE") DATED _________________, 1997 EXECUTED
BY AND BETWEEN TENANT AND XXXX CENTER IRVINE NUMBER TWO OR TENANT HAS
FAILED TO REPLACE THIS LETTER OF CREDIT AS REQUIRED UNDER THE TERMS OF THE
LEASE. THE AMOUNT OF THE SIGHT DRAFT REPRESENTS MONIES DUE AND OWING BY
TENANT UNDER THE LEASE."
PARTIAL DRAWINGS WILL BE PERMITTED UNDER THIS CREDIT AND ALL DRAFTS
HEREON MUST BEAR THE DATE AND NUMBER OF THIS CREDIT. THIS CREDIT IS EFFECTIVE
IMMEDIATELY AND WE HEREBY ENGAGE WITH YOU THAT DRAFTS DRAWN HEREON AND IN
CONFORMITY WITH THE TERMS OF THIS CREDIT WILL BE DULY HONORED UPON PRESENTATION
SO LONG AS SUCH DRAFTS ARE PRESENTED ON OR BEFORE 4:45 P.M. CENTRAL TIME ON THE
EXPIRY DATE, AS THE EXPIRY DATE MAY BE AUTOMATICALLY EXTENDED PURSUANT TO THE
TERMS OF THE NEXT PARAGRAPH. THIS $1,221,320.00 CREDIT (WITHOUT THE STEP-UP
FUNCTION AND DECREASED ANNUALLY BY $244,000.00) SHALL BE DEEMED AUTOMATICALLY
EXTENDED WITHOUT AMENDMENT FOR ONE (1) YEAR FROM THE PRESENT AND ANY FUTURE
EXPIRY DATE , UNLESS AT LEAST THIRTY (30) DAYS PRIOR TO ANY SUCH PRESENT OR
FUTURE EXPIRY DATE WE SHALL NOTIFY YOU IN WRITING THAT WE ELECT NOT TO CONSIDER
THIS CREDIT RENEWED FOR SUCH ADDITIONAL PERIOD.
THIS CREDIT IS SUBJECT TO THE "UNIFORM CUSTOMS AND PRACTICES FOR
DOCUMENTARY CREDITS (1993 REVISION), INTERNATIONAL CHAMBER OF COMMERCE
PUBLICATION 500."
[NAME OF BANK]
By:
---------------------------------------
Authorized Officer
EXHIBIT "J"
-----------
LOCATION OF RESERVED PARKING SPACES
-----------------------------------
[To Be Supplied]
EXHIBIT "K"
-----------
OFFICE BUILDING LEASE
BETWEEN
XXXX CENTER IRVINE NUMBER TWO,
LANDLORD
AND
NEW CENTURY FINANCIAL CORPORATION,
TENANT
OFFICE BUILDING LEASE
---------------------
TABLE OF CONTENTS
------------------
Page
----
1. BASIC LEASE TERMS................................................... 1
2. PREMISES AND COMMON AREAS........................................... 4
3. TERM................................................................ 4
4. POSSESSION.......................................................... 4
5. RENT................................................................ 5
6. OPERATING EXPENSES.................................................. 5
7. SECURITY DEPOSIT.................................................... 5
8. USE................................................................. 6
9. NOTICES............................................................. 6
10. BROKERS............................................................. 7
11. SURRENDER; HOLDING OVER............................................. 7
12. TAXES ON TENANT'S PROPERTY.......................................... 7
13. ALTERATIONS......................................................... 7
14. REPAIRS............................................................. 8
15. LIENS............................................................... 9
16. ENTRY BY LANDLORD................................................... 9
17. UTILITIES AND SERVICES.............................................. 9
18. ASSUMPTION OF RISK AND INDEMNIFICATION.............................. 10
19. INSURANCE........................................................... 10
20. DAMAGE OR DESTRUCTION............................................... 11
21. EMINENT DOMAIN...................................................... 12
22. DEFAULTS AND REMEDIES............................................... 13
23. LANDLORD'S DEFAULT.................................................. 14
24. ASSIGNMENT AND SUBLETTING........................................... 14
25. SUBORDINATION....................................................... 16
26. ESTOPPEL CERTIFICATE................................................ 17
27. INTENTIONALLY OMITTED............................................... 17
28. RULES AND REGULATIONS............................................... 17
29. MODIFICATION AND CURE RIGHTS OF LANDLORD'S MORTGAGEES AND LESSORS... 17
30. DEFINITION OF LANDLORD.............................................. 17
31. WAIVER.............................................................. 17
32. PARKING............................................................. 18
33. FORCE MAJEURE....................................................... 18
34. SIGNS............................................................... 19
35. LIMITATION ON LIABILITY............................................. 19
36. FINANCIAL STATEMENTS................................................ 19
37. QUIET ENJOYMENT..................................................... 19
38. MISCELLANEOUS....................................................... 19
39. EXECUTION OF LEASE.................................................. 20
SIGNATURE PAGE...................................................... 21
EXHIBITS:
A-I Site Plan
A-II Outline of Floor Plan of Premises
B Rentable Square Feet and Usable Square Feet
C Work Letter Agreement
D Notice of Lease Term Dates and Tenant's Percentage
E Definition of Operating Expenses
F Standards for Utilities and Services
G Estoppel Certificate
H Rules and Regulations
I Satellite Antenna License Agreement
J Form of Letter of Credit
K Location of Reserved Parking Spaces
