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EXHIBIT 10.5
TORREY RESERVE
ADDENDUM TO LEASE
This Addendum to Lease ("Addendum") is made to the Lease dated as of
June 16, 1997 ("Lease"), by and between AMERICAN ASSETS, INC., A CALIFORNIA
CORPORATION ("Landlord") and ACC CONSUMER FINANCE CORPORATION, A DELAWARE
CORPORATION ("Tenant").
Landlord and Tenant hereby agree that notwithstanding anything
contained in the Lease to the contrary, the provisions set forth below shall be
deemed to be a part of the Lease and shall supersede, to the extent appropriate,
any contrary provision in the Lease. All references in the Lease and in this
Addendum to "Lease" shall be construed to mean the Lease as amended and
supplemented by this Addendum. All capitalized terms used in this Addendum
unless specifically defined in this Addendum shall have the same meaning as the
terms used in the Lease.
AGREEMENT
1. Option to Extend Term.
1.1 Grant of Option. Landlord hereby grants to Tenant two (2)
options ("Extension Options") to extend the initial Lease Term for additional
periods of five (5) years each (the "First Extension Term and Second Extension
Term"). The First Extension Term and the Second Extension Term are sometimes
referred to herein collectively and individually as an "Extension Term." Each
Extension Option must be exercised, if at all, by written notice ("Option
Notice") delivered by Tenant to Landlord not later than twelve (12) months prior
to the end of the initial Lease Term or First Extension Term, as the case may
be. Further, each Extension Option shall not be deemed to be properly exercised
if, as of the date of the Option Notice or at the end of the initial Lease Term
or the First Extension Term, Tenant (i) is in default under the Lease, (ii) has
assigned this Lease or its interest therein or (iii) has sublet all or
substantially all of the Premises. Provided Tenant has properly and timely
exercised the Extension Option in question, the initial Lease Term or First
Extension Term, as the case may be, shall be extended for an additional period
of five (5) years, and all terms, covenants and conditions of the Lease shall
remain unmodified and in full force and effect, except that the Basic Rent shall
be modified as set forth below.
1.2 Basic Rent During Extension Term(s). Basic Rent shall be payable
during each Extension Term in accordance with Section 4.1 of this Lease, except
that the monthly Basic Rent payable for the first twelve (12) months of each
Extension Term shall be equal to one-twelfth (1/12) of that amount determined by
multiplying the rentable area of the Premises by the "Fair Market Rental Value"
for the Premises at the time Tenant delivers its Option Notice to Landlord. The
"Fair Market Rental Value" shall mean 95% of the prevailing rental rate, on a
rentable per square foot per year basis, then being obtained by Landlord in the
Building and Project for space similar in size and quality to that of the
Premises; provided, however, in no event shall the Fair Market Rental Value be
less than the annual rate per rentable square foot at which the Basic Rent was
payable during the last year of the initial Term or the First Extension Term, as
the case may be. Once determined, the Basic Rent payable for the first twelve
(12) months of the Extension Term in question shall be increased on each
anniversary date of such Extension Term by an amount equal to the rentable area
of the Premises multiplied by $.05. The Base Year for each Extension Term shall
be the calendar year immediately preceding commencement of the Extension Term in
question and Tenant shall pay, as Additional Rent hereunder, Tenant's Share of
the annual Direct Expenses that are in excess of the amount of Direct Expenses
applicable to such Base Year commencing with the first year of such Extension
Term.
1.2.1 Negotiating Period. Provided the conditions to Tenant's right to
exercise the applicable Option to Extend hereunder are satisfied, Landlord
shall, within ten (10) business days after receipt of Tenant's Option Notice,
deliver to Tenant a written determination of the then Fair Market Rental Value
as determined by Landlord using the
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criteria set forth above ("Landlord's Determination"). Tenant shall have ten
(10) business days from the date of Landlord's delivery to notify Landlord in
writing of Tenant's acceptance of Landlord's Determination or deliver to
Landlord Tenant's written determination of the then Fair Market Rental Value
using the criteria set forth above ("Tenant's Determination"). If Tenant does
not deliver to Landlord the Tenant's Determination within such 10-day period,
Tenant shall be deemed to have accepted the Landlord's Determination and the
rental rate set forth in the Landlord's Determination shall be the Fair Market
Rental Value used to determine the Basic Rent payable for the first twelve (12)
months of the applicable Extension Term. If Tenant does deliver the Tenant's
Determination within such 10-day period, then Landlord and Tenant will have ten
(10) days from the date of delivery of Tenant's Determination to negotiate a
Fair Market Rental Value acceptable to both Landlord and Tenant (the
"Negotiating Period").
1.2.2 Arbitration. If no agreement can be reached as to the Fair Market
Rental Value within the Negotiating Period, then, within seven (7) days after
the Negotiating Period expires, Tenant and Landlord shall mutually appoint a
certified M.A.I. appraiser that has at least five (5) years full-time commercial
appraisal experience. If Landlord and Tenant are unable to agree on an
appraiser, either of the parties to this Lease, after giving five (5) days prior
written notice to the other party, may apply to the then President of the San
Diego Board of Realtors for the selection of an appraiser who meets the
foregoing qualifications, which selection shall be made within three (3) days.
The appraiser selected by the President of the Board of Realtors shall be a
person who has not previously acted in any capacity for either party. The
appraiser shall, within ten (10) days of his appointment, review the original
Landlord's Determination and Tenant's Determination of the Fair Market Rental
Value and such other information as he shall deem necessary and shall determine
which of the two is closer to the actual Fair Market Rental Value. The appraiser
shall be instructed, in deciding whether the Landlord's Determination or the
Tenant's Determination of the Fair Market Rental Value is closer to the actual
Fair Market Rental Value, to use the criteria as to Fair Market Rental Value set
forth above. The appraiser shall not establish his own Fair Market Rental Value,
and must select either Landlord's or Tenant's Determination and shall
immediately notify the parties of his selection. The Fair Market Rental Value
determined by Landlord or Tenant and selected as the one closer to the actual
Fair Market Rental Value by the appraiser shall be the Fair Market Rental Value
used to determine the Basic Rent payable during the first twelve (12) months of
the Extension Term in question and such Basic Rent shall be subject to annual
adjustment as et forth in Subsection 1.2 above. Each of the parties shall bear
one-half the cost of the appraiser. If the Fair Market Rental Value shall not
have been determined by the commencement of the applicable Extension Term,
Tenant shall continue to pay the Basic Rent payable as of the month immediately
preceding such commencement until the Fair Market Rental Value is established at
which time there shall be an adjustment between the parties so that the Basic
Rent established for the Extension Term using the Fair Market Rental Value shall
be retroactive to the commencement of the applicable Extension Term.
2. Right of First Offer.
2.1 Right of First Offer. If at anytime after the Lease
Commencement Date any leased space becomes available on the second floor of the
Building or on a floor designated by Landlord in Building 1 or 0, Xxxxxx Xxxxxxx
- Xxxxx Xxxxx, or if a prospective tenant expresses interest in any unleased
space on the second floor of the Building or on a floor designated by Landlord
in Building 1 or 0, Xxxxxx Xxxxxxx - Xxxxx Xxxxx (collectively, the "First Offer
Space"), Landlord shall give Tenant written notice thereof, and if, within three
(3) business days thereafter, Tenant shall give Landlord written notice that
Tenant elects to negotiate for a lease of the First Offer Space, Landlord shall
not offer the First Offer Space for rent to a third party for a ten (10)
calendar day period after Landlord receives Tenant's notice of a desire to
negotiate for the First Offer Space. If Tenant elects to negotiate for a lease
of the First Offer Space, the rental rate and other terms then being offered to
other prospective tenants of the Building and Project shall be used by the
parties as a guideline for their negotiations. If within such ten (10) calendar
day period, the parties
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fail to agree on the terms of a lease thereof, Landlord may offer such space to
a third party. If the third-party lease shall not be made, Tenant's rights
hereunder shall apply to any subsequent third-party offer.
2.2 Restrictions on Right of First Offer. The Right of First-Offer
shall be personal to the originally named Tenant and shall be exercisable only
by the originally named Tenant (and not any assignee, sublessee, or other
transferee of Tenant's interest in this Lease). The originally named Tenant may
exercise the Right of First Offer only if that Tenant occupies the entire
Premises as of the date of Tenant's election to negotiate for a lease for the
First Offer Space. Tenant shall not have the right to lease the First Offer
Space if Tenant is in default under this Lease as of the date of the attempted
exercise of the Right of First Offer by Tenant or as of the scheduled date of
delivery of the First Offer Space to Tenant.
3. Substitution of Other Premises (Subsection 2.1). Subsection 2.1 is
deemed deleted in its entirety.
4. Delay in Delivery of the Premises (Section 3.4). The following are
deemed added as Subsections 3.4.1 and 3.4.2:
3.4.1 Outside Delivery Date/Rent Abatement for Late Delivery
of Premises/Tenant's Right to Terminate. Notwithstanding
anything contained to the contrary herein, provided this Lease
is executed by Landlord and Tenant on or before April 9, 1997,
and except for delays caused by events Force Majeure (as
defined in Section 31.12 of this Lease) or Tenant's failure to
timely and completely comply with all terms and conditions of
this Lease, Tenant shall be entitled to and shall receive one
(1) day of abated Basic Rent (at the rate payable as of the
Commencement Date) for each day Landlord is delayed in
delivering possession of the Premises to Tenant after November
1, 1997. Such abated Basic Rent shall be applied to the first
due and owing Basic Rent accruing after the Commencement Date.
Furthermore, except for delays caused by events Force Majeure
(as defined in Section 31.12 of this Lease) or Tenant's
failure to timely and completely comply with all terms and
conditions of this Lease, and provided Tenant is not in
default under this Lease, if Landlord has not delivered
possession of the Premises to Tenant on or before January 1,
1998, Tenant shall have the right to terminate this Lease,
which right shall be exercised by Tenant, if at all, on or
before 5:00 p.m. on the next business day following January 1,
1998.
3.4.2 Pre-delivery Status Reports. Landlord agrees, without
liability for failing to do so, to provide Tenant with written
status updates regarding completion of the Tenant Improvements
and the actual Commencement Date at intervals of ninety (90),
sixty (60) and thirty (30) days prior to the date Landlord
expects to tender possession of the Premises to Tenant.
5. Application of Payments (Section 4.3). Section 4.3 is deemed deleted and
the following is deemed inserted in place thereof:
4.3 Application of Payments. All payments of Basic Rent and
Additional Rent received by Landlord from Tenant shall be
applied to the oldest payment of Basic Rent or Additional Rent
owed by Tenant to Landlord. No designation by Tenant, either
in a separate writing or on a check or money order, shall
modify this clause or have any force or effect.
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6. Certified Funds (Section 4.4). Section 4.4 is deemed deleted and the
following is deemed inserted in place thereof:
4.4 Certified Funds. If any non-cash payment made by Tenant is
not paid by the bank or other institution on which it is drawn
for any reason other than such bank or other institution's
fault or inadvertence, Landlord shall have the right,
exercised by notice to Tenant, to require that Tenant make all
future payments by certified funds or cashier's check.
7. Additional Rent; Rent (Lease, Subsection 5.1); Statement of Actual
Direct Expenses and Payment by Tenant (Lease, Subsection 5.3.2). Notwithstanding
anything contained to the contrary in Subsection 5.1 or Subsection 5.3.2 of the
Lease, Tenant's Share of annual "Operating Expenses" which are controllable by
Landlord (i.e., all Operating Expenses except Building and Project Common Area
utilities, Building and Project Tax Expenses, and Building and Project insurance
premiums including any deductible amount paid by Landlord) ("Controllable
Operating Expenses"), shall not increase by an amount per square foot which is
more than six percent (6%) per calendar year of the amount of Tenant's Share of
Controllable Operating Expenses per square foot for the immediately preceding
calendar year, on a cumulative basis (Annual Cap). Any increase in Tenant's
Share of Controllable Operating Expenses, which exceeds the Annual Cap, shall
hereinafter be referred to as the "Carry Over Increase". The Carry Over Increase
shall be carried over to subsequent years and applied to increases in Tenant's
Share of Controllable Operating Expenses where the increase in Tenant's Share of
Controllable Operating Expenses does not exceed the Annual Cap.
For example, assume Tenant's Share of Controllable Operating Expenses
for the Base Year (1998) is determined to be $4.00 per square foot per year and
Tenant's Share of actual Controllable Operating Expenses for calendar year 1999
is determined to be $4.40 per square foot per year (i.e., an increase of 10%).
In such case, Tenant's Share of Controllable Operating Expenses for 1999 would
be $4.24 per square foot per year as a result of the Annual Cap (i.e. $4.00 x
1.06 = $4.24) and the Carry Over Increase would be four percent (4%) (i.e. 10%
actual increase in Tenant's Share of Controllable Operating Expenses less the 6%
Annual Cap). Assume further, however, that Tenant's Share of actual Controllable
Operating Expenses for calendar year 2000 is determined to be $4.40 per square
foot per year (i.e., an increase of only 4% over Tenant's Share of Controllable
Operating Expenses for 1999). In such case, Tenant's Share of Controllable
Operating Expenses for calendar year 2000 could not exceed $4.58 per square foot
per year (i.e. $4.24 x the 1999 actual increase of 4% plus the Carry Over
Increase of 2% for calendar year 2000).
8. Contest Costs; Refunds (Subsection 5.2.5.3). Subsection 5.2.5.3 is
deemed deleted and the following is deemed inserted in place thereof:
5.2.5.3 Contest Costs; Refunds. Any expenses reasonably
incurred by Landlord in attempting to protest, reduce, or
minimize Tax Expenses with the purpose and intent to reduce
Tenant's Share of Tax Expenses shall be included in Tax
Expenses in the Expense Year in which those expenses are paid.
Except for tax refunds resulting from a Proposition 8
reduction under Subsection 5.2.5.6, tax refunds shall be
deducted from Tax Expenses. Such tax refunds shall be deducted
from Tax Expenses in the Expense Year in which they are
received by Landlord.
9. Landlord's Books and Records (Section 5.6). The third sentence of
Section 5.6 is deemed deleted and the following is deemed inserted in place
thereof:
The accountant must be a member of a nationally recognized
accounting firm.
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10. Security Deposit (Section 6.1). The third sentence of Section 6.1 is
deemed deleted. Furthermore, the sixth sentence of Section 6.1 is deemed deleted
and the following is deemed inserted in place thereof:
If Landlord reasonably applies any portion of the Security
Deposit, Tenant shall, within thirty (30) days after demand by
Landlord, deposit with Landlord an amount sufficient to
restore the Security Deposit to its original amount.
11. Asbestos Notification (Section 9.3). Section 9.3 is deemed deleted.
12. Heating and Air Conditioning (Subsection 10.1.1). Upon Tenant's
request, Landlord shall make HVAC service available to the Premises during
non-standard Building Hours. The cost of such non-standard Building Hour HVAC
service shall be paid by Tenant to Landlord, as Additional Rent hereunder, at
Landlord's actual per hour cost which cost shall not exceed $25.00 per hour
during the initial Lease Term. During any extension or renewal of the initial
Lease Term, such services shall provided to Tenant at Landlord's actual cost
without regard to a maximum per hour charge.
13. Electricity (Subsection 10.1.2). The following is deemed added as the
last sentence of Subsection 10.1.2:
In addition to the foregoing, Landlord shall provide
sufficient connected electrical load to the Premises to
operate computers and air conditioning systems to be installed
in the Computer Room Landlord is to construct within the
Premises in accordance with Exhibit C attached to this Lease.
14. Janitorial Services (Subsection 10.1.4). The last sentence of
Subsection 10.1.4 is deemed deleted and the following is deemed inserted in
place thereof:
Such janitorial service shall include cleaning of interior
windows and kitchens within the Premises and exercise and
shower facilities located within the Common Areas of the
Building.
15. Interruption of Utilities (Section 10.3). The following is deemed added
as the last sentence of Section 10.3:
Landlord covenants and agrees to exercise commercially
reasonable efforts to promptly resolve any such failure,
delay, or diminution of any utility service and to restore
Tenant's access thereto as soon as possible.
16. Tenant's Repair and Maintenance Obligations (Section 11.1). The fourth
sentence of Section 11.1 is deemed deleted and the following is deemed inserted
in place thereof:
At Landlord's option or if Tenant fails to make such repairs,
Landlord may, but need not, make the repairs and replacements.
On receipt of an invoice from Landlord, and provided such
repairs and replacements were not necessary as a result of the
negligence or willful misconduct of Landlord, its agents,
employees, or contractors, Tenant shall pay Landlord
Landlord's out of pocket costs incurred in connection with
such repairs and replacements plus a reasonable amount to
reimburse Landlord for all overhead, general conditions, fees,
and other costs and expenses arising from Landlord's
involvement with such repairs and replacements.
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17. Landlord's Repair and Maintenance Obligations (Section 11.2). The
following is deemed added to the end of Section 11.2:
Notwithstanding anything contained to the contrary in Section
11.1 above or this Section 11.2, Tenant shall have the limited
right to make emergency repairs to the Premises subject to
Tenant's good faith effort to first notify Landlord of the
need for such repairs and thereafter allowing Landlord a
reasonable period of time within which to make the emergency
repairs. If Tenant performs any emergency repairs, the repairs
shall be made only to the extent necessary to prevent or
minimize imminent injury or harm to persons or property in or
about the Premises or to permit Tenant to continue to or to
re-commence the conduct of business in the Premises and
Landlord shall, within thirty (30) days of Landlord's receipt
of an invoice therefor, reimburse Tenant for all costs and
expenses reasonably incurred and actually paid by Tenant in
connection therewith. Tenant shall have no right to offset or
deduct the amount of such emergency repairs from any Basic
Rent, Additional Rent or other amount owed Landlord under this
Lease.
18. Consent Procedure; Conditions (Subsection 12.1.1). Subsection 12.1.1 is
deemed deleted and the following is deemed inserted in place thereof:
12.1.1 Consent Procedure; Conditions. Tenant shall request
such consent by written notice to Landlord, which must be
accompanied by detailed and complete plans and specifications
for the proposed work. As a condition of its consent to
Alterations, Landlord may impose any reasonable requirements
that Landlord considers desirable, including a requirement
that Tenant provide Landlord with a surety bond, a letter of
credit, or other financial assurance that the cost of the
Alterations will be paid when due but only to the extent that
such costs exceed the amount of the Security Deposit then on
deposit with Landlord.
19. Payment for Improvements (Section 12.4). Subsection (c) of Section 12.4
is deemed deleted.
20. Exculpation (Subsection 14.2.1). The last sentence of Subsection 14.2.1
is deemed deleted and the following is deemed inserted in place thereof:
This exculpation clause shall not apply to claims against
Landlord Parties to the extent that a final judgment of a
court of competent jurisdiction establishes that the injury,
loss, damage, or destruction was proximately caused by
Landlord Parties' negligence, fraud, willful injury to person
or property, or violation of law.
21. Tenant's Acknowledgement of Fairness (Section 14.2.3). Subsection
14.2.3 is deemed deleted.
22. Indemnification (Section 14.3). The following is deemed added to the
Lease as Subsections 14.3.9:
14.3.9 Landlord's Indemnification of Tenant. Because Landlord
is required to maintain insurance on the Building and Tenant
compensates Landlord for such insurance as part of Tenant's
Share of Operating Expenses and because of the waivers of
subrogation in section 14.10, Landlord shall, with counsel
reasonably acceptable to Tenant,
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indemnify, defend, and hold harmless Tenant Parties from and
against all Claims for injury to or death of persons or
damage to property outside the Premises to the extent that
such Claims are covered by such insurance (or would have
been covered had Landlord carried the insurance required
under this Lease), even if resulting from the negligent
acts, omissions, or willful misconduct of Tenant Parties. In
addition, Landlord shall, with counsel reasonably acceptable
to Tenant, indemnify, defend, and hold harmless Tenant
Parties from and against all Claims resulting from the
negligent acts, omissions, or willful misconduct of Landlord
Parties in connection with Landlord Parties' activities in,
on, or about the Project or Building, except to the extent
that such Claim is for damage to the Tenant Improvements and
Tenant's personal property, fixtures, furniture, and
equipment in the Premises and is covered by insurance that
Tenant is required to obtain under this Lease (or would have
been covered had Tenant carried the insurance required under
this Lease).
23. "Per Location" Endorsement (Subsection 4.5.11). Subsection 14.5.11 is
deemed deleted and the following inserted in place thereof:
If, at anytime during the Term of this Lease, Tenant's primary
liability coverage is less than $2,000,000.00, Tenant shall,
at Tenant's sole expense, procure a "per location" endorsement
or equivalent reasonably acceptable to Landlord so that the
general aggregate and other limits apply separately and
specifically to the Premises.
24. Tenant's Property Insurance (Subsection 14.7.1). Subsection 15.4.7.1
(b) is deemed deleted.
25. Landlord's Option to Terminate or Repair (Section 15.2). In the first
sentence of Section 15.2, the words "sixty (60) days" are deemed deleted and the
words "thirty (30) days" are deemed inserted in place thereof.
26. Landlord's Option to Terminate (Section 15.3). In the first sentence of
Section 15.3, the words "two hundred and seventy (270)" are deemed deleted and
the words "one hundred eighty (180)" are deemed inserted in place thereof.
27. Tenant's Option to Terminate (Section 15.4). In the first sentence of
Section 15.3, the words "two hundred and seventy (270)" are deemed deleted and
the words "one hundred eighty (180)" are deemed inserted in place thereof.
28. Landlord's Right to Terminate (Section 16.3.3). The first sentence of
Subsection 16.3.3 is deemed deleted and the following is deemed inserted in
place thereof:
Landlord shall have the option to terminate this Lease if: (a)
twenty-five percent (25%) or more of the Rentable Square Feet
of the Building or the Premises is taken through Condemnation;
(b) any portion of the Building or Project necessary for
Landlord to operate the Building efficiently is taken through
Condemnation; or (c) any other areas providing access to the
Premises or Building are taken through Condemnation.
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29. Landlord's Consent (Section 17.3). The following is deemed added as
Subsection 17.3.4 of the Lease:
17.2.4 Disputes Regarding Assignment and Subletting.
17.2.4.1 Arbitration. Subject to the limitations
contained in Subsection 17.3.3 above, any dispute regarding a
requested assignment of this Lease or a requested subletting
of all or any portion of the Premises shall be resolved, at
the option of Landlord or Tenant, by neutral binding
arbitration before a single arbitrator, to be held in
accordance with the real estate rules of the American
Arbitration Association. Judgment on the award rendered by the
arbitrator may be entered in any Court having jurisdiction
over the dispute. The Arbitrator shall be an attorney familiar
with handling commercial lease matters. Hearings shall be held
in the City of San Diego, California or other venue determined
by mutual agreement of the parties.
17.2.4.2 Demand and Limitations on Claims. Any demand
for arbitration must be made in writing to the other party and
the American Arbitration Association. No demand for
arbitration may be made after the date on which the
institution of legal proceedings based on the dispute is
barred by the applicable statute of limitations.
17.2.4.3 Provisional Remedies. The parties shall each
have the right to file with a court of competent jurisdiction
an application for temporary or preliminary injunctive relief
or temporary protective order, if the arbitration award to
which the applicant may be entitled may be rendered
ineffectual in the absence of such relief or id there is no
other adequate remedy. This application shall not waive a
party's arbitration rights hereunder.
17.2.4.4 Powers and Duties of Arbitrator. The
arbitrator shall have the power to grant declaratory or
equitable relief only and shall not have the power to award
damages. The arbitrator shall prepare and provide to the
parties a written decision on all matters subject to the
arbitration, including factual findings and the reasons that
form the basis of the arbitrators decision. The arbitrator
shall not have the power to commit errors of law or legal
reasoning, and the decision of the arbitrator shall be vacated
or corrected for any such error or on any other grounds
specified in Code of Civil Procedure section 1286.2 or section
1286.6. The decision of the arbitrator shall be mailed to the
parties no later than thirty (30) days after the close of the
arbitration hearing. The arbitration proceedings shall be
reported by a certified shorthand court reporter. Written
transcripts of the proceedings shall be prepared and made
available to the parties.
17.2.4.5 Discovery/Evidence/Costs. The parties shall
have the right to discovery in accordance with Code of Civil
Procedure sections 1283.05 and 1283.1 as long as the
arbitrator's permission shall not be required to take a
discovery deposition. All discovery disputes shall be resolved
by the arbitrator. The provisions of the California Evidence
Code shall apply to the arbitration hearing. Costs and fees
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of the arbitrator shall be borne by the non-prevailing party
unless the arbitrator for good cause determines otherwise. The
prevailing party shall be awarded reasonable attorney fees,
expert and non-expert witness expenses, and other costs and
expenses incurred in connection with the arbitration.
17.2.4.6 Notice. BY INITIALING IN THE SPACE BELOW,
YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF A
REQUESTED ASSIGNMENT OF THIS LEASE OR A REQUESTED SUBLETTING
OF ALL OR A PORTION OF THE PREMISES DECIDED BY NEUTRAL
ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING
UP ANY RIGHTS YOU MAY HAVE OR POSSESS TO HAVE THE DISPUTE
LITIGATED IN A COURT OR JURY TRIAL. BY INITIALLING BELOW, YOU
ARE GIVING UP JUDICIAL RIGHT TO DISCOVERY AND APPEAL, UNLESS
THOSE RIGHTS ARE SPECIFICALLY INCLUDED HEREIN. IF YOU REFUSE
TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU
MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE
CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS
ARBITRATION PROVISION IS VOLUNTARY. I/WE HAVE READ AND
UNDERSTOOD THE FOREGOING AND AGREE TO BE SUBMIT DISPUTES
DESCRIBED HEREIN TO NEUTRAL ARBITRATION.
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Landlord's Initials Tenant's Initials
30. Transfer Premium (Subsection 17.4.1). The first sentence of Subsection
17.4.1 is deemed deleted and the following is deemed inserted in place thereof:
As a reasonable condition to Landlord's consent to any
Transfer, Tenant shall pay to Landlord twenty-five percent
(25%) of any Transfer Premium, as defined in this Subsection
17.4.1.
31. Restrictions on Marketing the Space (Section 17.8). Section 17.8 is
deemed deleted.
32. Late Charge (Section 24.1). The first sentence of Section 24.1 is
deemed deleted and the following is deemed inserted in place thereof:
If any Rent payment is not received by Landlord or Landlord's
designee within five (5) days after that Rent is due, Tenant
shall pay to Landlord a late charge equal to the greater of
One Hundred Dollars ($100), or eight percent (8%) of the
overdue amount as liquidated damages, in lieu of actual
damages (other than interest under Section 24.2 and attorney
fees and costs under Section 27.1).
33. Landlord's Access to Premises (Section 28.1). The first sentence of
Section 28.1 is deemed deleted and the following is deemed inserted in place
thereof:
Landlord and its agents and employees shall have the right,
following reasonable advance written notice to Tenant, to
enter the Premises to: (a) inspect the Premises; (b) show the
Premises to prospective purchasers, mortgagees, or tenants or
to ground lessors or underlying lessors; (c) serve, post, and
keep posted notices required by law or that Landlord considers
necessary for the protection of Landlord or the Building; or
(d) make repairs, replacements, alterations, or improvements
to the Premises or Building that Landlord considers necessary
or desirable.
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34. Tenant's Waiver (Section 28.2). Section 28.2 is deemed deleted and the
following is deemed inserted in place thereof:
Subject to the provision of Section 28.1 above, Landlord may
enter the Premises without the abatement of Rent and may take
steps to accomplish the stated purposes. Tenant waives any
claims for damages caused by Landlord's entry, including
damage claims for: (a) injuries; (b) inconvenience to or
interference with Tenant's business; (c) lost profits; and (d)
loss of occupancy or quiet enjoyment of the Premises.
35. Nontransferable Passes (Section 30.4). Section 30.4 is deemed deleted
and the following is deemed inserted in place thereof:
30.4 Nontransferable Passes. The parking passes granted by
Landlord to Tenant under this Article 30 are provided to
Tenant solely for use by Tenant's personnel (not including
Tenant's invitees and guests). These passes may not be
transferred, assigned, subleased, or otherwise alienated by
Tenant without Landlord's prior approval.
36. Building Name; Tenant's Signage Rights (Subsection 29.1). Landlord
agrees that, for so long as Tenant leases and occupies the Premises, and
provided Tenant shall not be in default under this Lease, Tenant shall have the
right to place one (1) top parapet level exterior tenant identification sign on
the Southwest fascia of the Building and one (1) top parapet level tenant
identification sign on the Southeast fascia of the Building (collectively, the
"Parapet Signs"). Landlord shall have the right to review and approve the
design, dimensions, construction and exact location of the Parapet Signs prior
to their fabrication or installation on the Building. Tenant's rights hereunder
are further conditioned upon (i) the Parapet Signs being permitted by applicable
code, ordinance, statute, rule or regulation or by any action or rule of any
governmental authority having jurisdiction over such matters, and (ii) all
consents necessary from all governmental authorities having jurisdiction over
such matters having been obtained by Tenant.
Tenant will bear the entire cost associated with creating, designing,
manufacturing, and installing the Parapet Signs and all costs of illuminating
(if Tenant chooses to illuminate the Parapet Signs), operating, maintaining and
insuring the Parapet Signs ("Lighting Cost"). If any Lighting Cost is invoiced
to Landlord, such cost shall become Additional Rent due upon invoice therefrom
by Landlord. Upon the expiration or earlier termination of this Lease or
Tenant's right to possession of the Premises Tenant shall, at Tenant's sole cost
and expense, cause the Parapet Signs to be removed and shall repair and restore
those portions of the Building affected by the installation or removal of the
Parapet Signs, to the condition existing prior to their installation or to a
condition otherwise satisfactory to Landlord. Tenant acknowledges and agrees
that Landlord shall have the right to grant other tenants of the Building or
Project the right to install signage on the exterior of the Building or other
buildings within the Project.
37. Subordination, Non-disturbance, and Attornment (Article 21). Landlord
agrees that, concurrently with execution of this Lease, it will exercise
commercially reasonable efforts to provide Tenant with non-disturbance
agreements in favor of Tenant from any ground lessors, mortgage holders or lien
holders then in existence. Landlord also agrees to exercise commercially
reasonable efforts to provide Tenant with non-disturbance agreements in favor of
Tenant from any ground lessors, mortgage holders or lien holders of Landlord who
later come into existence at any time during the Lease Term. All such agreements
shall provide that as long as Tenant is not in default of the provisions of this
Lease, this Lease shall remain in effect, notwithstanding a judicial foreclosure
or sale in lieu of foreclosure.
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38. Number of Parking Passes (Section 30.1). Section 30.1 is deemed deleted
and the following is deemed inserted in place thereof:
30.1 Parking Passes/Parking Management Plan. Tenant shall
receive parking passes for the number of parking spaces set
forth Summary of Basic Lease Information Section 12. At
Tenant's request, Landlord will design, implement and
administer a transportation and parking plan ("Transportation
and Parking Plan") to assist Tenant with its higher than
allocated parking requirements. Landlord contemplates that the
Transportation and Parking Plan may initially involve a valet
service and/or a shuttle service during peak hours to and from
offsite parking areas such as the Carmel Valley Coaster depot
or CalTrans Park and Ride location. The cost of designing,
implementing, administering and operating the Transportation
and Parking Plan shall be borne by Tenant and other users who
make arrangements through Tenant to utilize such services.
39. Construction Drawings for the Premises (Exhibit C, Section 1). Section
1 of Exhibit C is deemed deleted and the following is deemed inserted in place
thereof:
Landlord shall construct the improvements in the Premises (the
"Tenant Improvements") pursuant to those certain plans and
specifications prepared by Xxxxx Consulting Architects dated
February 20, 1997, consisting of Sheet TS 1 dated March 26,
1997, Sheet TS 2 dated February 13, 1997, Sheet A1.1 dated
March 26, 1997, Sheet A1.2 dated March 26, 1997, Sheet A2.1
dated March 24, 1997, Sheet A2.2 dated March 24, 1997, Sheet
A3 dated March 25, 1997, Sheet A4 dated March 21, 1997, Sheet
A5 dated March 21, 1997, Sheet A6 dated March 25, 1997,
Building Standard Tenant Improvement Finishes dated February
20, 1997, pages 1 through 9 and that certain document
describing additional work to be performed by Landlord in the
Computer Room and 3rd Floor File Storage Room, which document
is attached hereto and made a part hereof as Exhibit C-1
(collectively, the "Approved Plans and Specifications").
Tenant shall make no changes or modifications to the Approved
Plans and Specifications without the prior written consent of
Landlord, which consent may be withheld in Landlord's
reasonable discretion if such change or modification would
directly or indirectly delay the "Substantial Completion," as
that term is defined in Section
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4.1 of this Tenant Work Letter Agreement, of the Premises or
increase the cost of designing or constructing the Tenant
Improvements.
40. Tenant's Agents (Section 5.4, Exhibit C). A period (.) is deemed placed
after the word "Project" and the balance of Section 5.4 of Exhibit C is deemed
deleted.
41. Effectiveness of Lease. Except as and to the extent modified by this
Addendum, all provisions of the Lease shall remain in full force and effect.
LANDLORD TENANT
American Assets, Inc., ACC Consumer Finance Corporation,
a California corporation a Delaware corporation
By: /s/ XXXX X. XXXXXXXXXXX By: /s/ XXXX X. XXXXXXX
------------------------------------- ------------------------------
Name: Xxxx X. Xxxxxxxxxxx Name: Xxxx X. Xxxxxxx
Title: Chief Executive Officer Title: President
By:
------------------------------
Name:
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Title:
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