Exhibit 10.6
INDUSTRIAL LEASE
(Multi-Tenant; Net)
BETWEEN
THE IRVINE COMPANY
AND
NEW CENTURY FINANCIAL CORPORATION
INDEX TO LEASE
ARTICLE I. BASIC LEASE PROVISIONS
ARTICLE II. PREMISES
Section 2.1 Leased Premises
Section 2.2 Acceptance of Premises
Section 2.3 Building Name and Address
Section 2.4 Right of First Refusal
Section 2.5 Landlord's Responsibilities
ARTICLE III. TERM
Section 3.1 General
Section 3.2 Delay in Possession
Section 3.3 Right to Extend this Lease
ARTICLE IV RENT AND OPERATING EXPENSES
Section 4.1 Basic Rent
Section 4.2 Operating Expenses
Section 4.3 Security Deposit
ARTICLE V. USES
Section 5.1 Use
Section 5.2 Signs
Section 5.3 Hazardous Materials
ARTICLE VI. COMMON AREAS; SERVICES
Section 6.1 Utilities and Services
Section 6.2 Operation and Maintenance of Common Areas
Section 6.3 Use of Common Areas
Section 6.4 Parking
Section 6.5 Changes and Additions by Landlord
ARTICLE VII. MAINTAINING THE PREMISES
Section 7.1 Tenant's Maintenance and Repair
Section 7.2 Landlord's Maintenance and Repair
Section 7.3 Alterations
Section 7.4 Mechanic's Liens
Section 7.5 Entry and Inspection
ARTICLE VIII. TAXES AND ASSESSMENTS ON TENANT'S PROPERTY
ARTICLE IX. ASSIGNMENT AND SUBLETTING
Section 9.1 Rights of Parties
Section 9.2 Effect of Transfer
Section 9.3 Sublease Requirements
Section 9.4 Certain Transfers
ARTICLE X. INSURANCE AND INDEMNITY
Section 10.1 Tenant's Insurance
Section 10.2 Landlord's Insurance
Section 10.3 Tenant's Indemnity
Section 10.4 Landlord's Non-liability
Section 10.5 Waiver of Subrogation
ARTICLE XI. DAMAGE OR DESTRUCTION
Section 11.1 Restoration
Section 11.2 Lease Governs
ARTICLE XII. EMINENT DOMAIN
Section 12.1 Total or Partial Taking
Section 12.2 Temporary Taking
Section 12.3 Taking of Parking Area
ARTICLE XIII. SUBORDINATION; ESTOPPEL CERTIFICATE; FINANCIALS
Section 13.1 Subordination
Section 13.2 Estoppel Certificate
Section 13.3 Financials
(i)
ARTICLE XIV. DEFAULTS AND REMEDIES
Section 14.1 Tenant's Defaults
Section 14.2 Landlord's Remedies
Section 14.3 Late Payments
Section 14.4 Right of Landlord to Perform
Section 14.5 Default by Landlord
Section 14.6 Expenses and Legal Fees
Section 14.7 Waiver of Jury Trial
Section 14.8 Satisfaction of Judgment
ARTICLE XV. END OF TERM
Section 15.1 Holding Over
Section 15.2 Merger on Termination
Section 15.3 Surrender of Premises; Removal of Property
ARTICLE XVI. PAYMENTS AND NOTICES
ARTICLE XVII. RULES AND REGULATIONS
ARTICLE XVIII. BROKER'S COMMISSION
ARTICLE XIX. TRANSFER OF LANDLORD'S INTEREST
ARTICLE XX. INTERPRETATION
Section 20.1 Gender and Number
Section 20.2 Headings
Section 20.3 Joint and Several Liability
Section 20.4 Successors
Section 20.5 Time of Essence
Section 20.6 Controlling Law
Section 20.7 Severability
Section 20.8 Waiver and Cumulative Remedies
Section 20.9 Inability to Perform
Section 20.10 Entire Agreement
Section 20.11 Quiet Enjoyment
Section 20.12 Survival
ARTICLE XXI. EXECUTION AND RECORDING
Section 21.1 Counterparts
Section 21.2 Corporate and Partnership Authority
Section 21.3 Execution of Lease; No Option or Offer
Section 21.4 Recording
Section 21.5 Amendments
Section 21.6 Executed Copy
Section 21.7 Attachments
ARTICLE XXII MISCELLANEOUS
Section 22.1 Non-disclosure of Lease Terms
Section 22.2 Guaranty
Section 22.3 Changes Requested by Lender
Section 22.4 Mortgagee Protection
Section 22.5 Covenants and Conditions
Section 22.6 Security Measures
Section 22.7 Jams Arbitration
Section 22.8 Communications Equipment
EXHIBITS
Exhibit A Description of Premises
Exhibit A-1 Description of Premises
Exhibit A-2 Right of First Refusal Space
Exhibit A-3 Right of First Refusal Space
Exhibit B Environmental Questionnaire
Exhibit C Landlord's Disclosures
Exhibit D Insurance Requirements
Exhibit E Rules and Regulations
Exhibit F License Agreement
Exhibit X Work Letter
Exhibit Y Project Site Plan
Exhibit Y-1 No Reserved Parking Areas
(ii)
INDUSTRIAL LEASE
----------------
(Multi-Tenant; Net)
THIS LEASE is made as of the _______ day of _______________, 19___, by and
between THE IRVINE COMPANY, hereafter called "Landlord," and NEW CENTURY
FINANCIAL CORPORATION, a Delaware corporation, hereinafter called "Tenant."
ARTICLE I. BASIC LEASE PROVISIONS
Each reference in this Lease to the "Basic Lease Provisions" shall mean and
refer to the following collective terms, the application of which shall be
governed by the provisions in the remaining Articles of this Lease.
1. Premises: The Premises (more particularly described in Section 2.1)
consists of space located in two (2) separate buildings, commonly known as:
"Building 1" - 000 Xxxxxxxx, Xxxxxx, Xxxxxxxxxx
"Building 2" - 000 Xxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx
2. Project Description (if applicable): Irvine Technology I & II
3. Use of Premises: General office.
4. Estimated Commencement Date: January 10, 2000
5. Lease Term: Sixty (60) months, plus such additional days as may be
required to cause this Lease to terminate on the final day of the calendar
month.
6. Basic Rent: One Hundred Seven Thousand Six Hundred Fifty Dollars
($107,650.00) per month, based on $1.60 per rentable square foot.
Basic Rent is subject to adjustment as follows:
Commencing twelve (12) months following the Commencement Date, the Basic
Rent shall be One Hundred Eleven Thousand Fourteen Dollars ($111,014.00)
per month, based on $1.65 per rentable square foot.
Commencing twenty-four (24) months following the Commencement Date, the
Basic Rent shall be One Hundred Fourteen Thousand Three Hundred Seventy-
Eight Dollars ($114,378.00) per month, based on $1.70 per rentable square
foot.
Commencing thirty-six (36) months following the Commencement Date, the
Basic Rent shall be One Hundred Seventeen Thousand Seven Hundred Forty-Two
Dollars ($117,742.00) per month, based on $1.75 per rentable square foot.
Commencing forty-eight (48) months following the Commencement Date, the
Basic Rent shall be One Hundred Twenty-One Thousand One Hundred Six Dollars
($121,106.00) per month, based on $1.80 per rentable square foot.
7. Guarantor(s): None
8. Floor Area of Premises: Approximately 67,281 rentable square feet, broken
down as follows:
340 Commerce Premises - 53,360 rentable square feet
350 Commerce Premises - 13,921 rentable square feet
9. Security Deposit: $133,217.00
10. Broker(s): Xxx & Associates
11. Additional Insureds: Insignia\ESG of California, Inc.
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12. Address for Payments and Notices:
LANDLORD TENANT
INSIGNIA\ESG OF CALIFORNIA, INC. NEW CENTURY FINANCIAL CORPORATION
1 Ada, Suite 270 00000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000 Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
with a copy of notices to:
IRVINE INDUSTRIAL COMPANY
X.X. Xxx 0000
Xxxxxxx Xxxxx, XX 00000-0000
Attn: Vice President, Industrial Operations
13. Tenant's Liability Insurance Requirement: $2,000,000.00
14. Vehicle Parking Spaces: Two Hundred Seventy-Two (272)
15. Plan Approval Date: October 15, 1999
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ARTICLE II. PREMISES
SECTION 2.1. LEASED PREMISES. Landlord leases to Tenant and Tenant leases
from Landlord: (i) the premises shown on EXHIBIT A attached hereto (the "340
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Commerce Premises"), and (ii) the premises shown on EXHIBIT A-1 attached hereto
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(the "350 Commerce Premises"). Collectively, the 340 Commerce Premises and the
350 Commerce Premises are herein referred to as the "Premises". The Premises
contain approximately the "Rentable Square Feet" as set forth in Item 8 of the
Basic Lease Provisions. The 340 Commerce Premises are located within a building
identified in Item 1 of the Basic Lease Provisions as 340 Commerce ("Building
1"); and the 350 Commerce Premises are located within a building identified in
Item 1 of the Basic Lease Provisions as 350 Commerce ("Building 2").
Collectively, Building 1 and Building 2 are herein referred to as the
"Buildings"), and individually as a "Building". Building 1 and Building 2 are a
portion of the project shown on EXHIBIT Y (the "Project"). Tenant understands
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that the floor area set forth in Item 8 of the Basic Lease Provisions may
include, at Landlord's option, a factor approximating the total square footage
of any common lobby or internal common features of the Buildings times the ratio
of the actual square footage of the Premises to the total square footage of the
Buildings. If, upon completion of the space plans for the Premises, Landlord's
architect or space planner determines that the rentable square footage of the
Premises differs from that set forth in the Basic Lease Provisions, then
Landlord shall so notify Tenant and the Basic Rent (as shown in Item 6 of the
Basic Lease Provisions) shall be promptly adjusted in proportion to the change
in square footage. Within fifteen (15) days following Landlord's request, the
parties shall memorialize the adjustments by executing an amendment to this
Lease prepared by Landlord, provided that the failure or refusal by either party
to execute the amendment shall not affect its validity. Tenant shall have access
to the Premises twenty-four (24) hours per day, seven days per week.
SECTION 2.2. ACCEPTANCE OF PREMISES. Except as specifically set forth in this
Lease, Tenant acknowledges that neither Landlord nor any representative of
Landlord has made any representation or warranty with respect to the Premises or
the Buildings or the suitability or fitness of either for any purpose,
including, without limitation, any representations or warranties regarding
zoning or other land use matters, and that neither Landlord nor any
representative of Landlord has made any representations or warranties regarding
(i) what other tenants or uses may be permitted or intended in the Buildings and
the Project, or (ii) any exclusivity of use by Tenant with respect to its
permitted use of the Premises as set forth in Item 3 of the Basic Lease
Provisions. Tenant further acknowledges that neither Landlord nor any
representative of Landlord has agreed to undertake any alterations or additions
or construct any improvements to the Premises except as expressly provided in
this Lease. The taking of possession or use of the Premises by Tenant for any
purpose other than construction shall conclusively establish that the Premises
and the Buildings were in satisfactory condition and in conformity with the
provisions of this Lease in all respects, except for: (i) those matters which
Tenant shall have brought to Landlord's attention on a written punch list and
(ii) Landlord's obligations under Section 2.5 hereof. The list shall be limited
to any items required to be accomplished by Landlord under the Work Letter
attached as Exhibit X, and shall be delivered to Landlord within sixty (60) days
---------
after the term ("Term") of this Lease commences as provided in Article III
below. Nothing contained in this Section shall affect the commencement of the
Term or the obligation of Tenant to pay rent. Landlord shall diligently
complete all punch list items of which it is notified as provided above.
SECTION 2.3. BUILDING NAME AND ADDRESS. Tenant shall not utilize any name
selected by Landlord from time to time for the Buildings and/or the Project as
any part of Tenant's corporate or trade name. Landlord shall have the right to
change the name, address, number or designation of the Buildings or Project
without liability to Tenant; provided, however, if the address of either of the
Buildings and/or the Project is changed by Landlord, Landlord agrees to provide
Tenant with no less than ninety (90) days prior written notice and to reimburse
Tenant for all expenses reasonably incurred by Tenant in conjunction with such
address change (including, without limitation, the cost of changing Tenant's
stationery and of notifying Tenant's clients and customers of Tenant's new
address), not to exceed Five Thousand Dollars ($5,000.00) in the aggregate.
SECTION 2.4. RIGHT OF FIRST REFUSAL. Provided Tenant is not then in default
hereunder, Landlord hereby grants Tenant a one-time right of first refusal
("First Refusal Right") to lease: (a) the space on the first floor in Building 2
comprising approximately 12,518 rentable square feet and the space on the second
floor of Building 2 comprising approximately 12,759 rentable square feet all as
shown on EXHIBIT A-2 attached hereto, and (b) the space located at 330 Commerce
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comprising approximately 53,360 rentable square feet as shown on EXHIBIT A-3
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(collectively, "First Refusal Space") in accordance with and subject to the
provisions of this Section 2.4 At any time following receipt by Landlord of a
bona fide letter of intent proposal or other written proposal setting forth
terms upon which Landlord is willing to lease all or a portion of the First
Refusal Space, Landlord shall give Tenant written notice of the term rent,
operating expenses and tenant improvement allowance, if any (the "Economic
Terms") upon which Landlord has tentatively agreed with such third party to
lease the First Refusal Space. It is understood that should Landlord have
tentatively agreed to lease other space in addition to the First Refusal Space
as part of a single transaction, then Landlord's notice shall so provide and all
such space shall collectively be subject to the following provisions. Within
five (5) business days after receipt of Landlord's notice, Tenant must give
Landlord written notice pursuant to which Tenant shall elect to (i) lease all,
but not less than all, of the First Refusal Space specified in Landlord's notice
(the "Designated First Refusal Space") upon such Economic Terms and the same
non-Economic Terms as set forth in this Lease (except as otherwise hereinafter
provided); or (ii) decline to lease the Designated First Refusal Space on such
Economic and non-Economic Terms. In the event that Tenant does not so respond
in writing to Landlord's notice within said period, Tenant shall be deemed to
have elected clause (ii) above. Should Tenant decline, or be deemed to have
declined, to lease the Designated First Refusal Space as provided in the
foregoing,
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Landlord shall be free thereafter to lease the Designated First Refusal Space
plus or minus ten percent (10%) thereof to any third party within the one
hundred twenty (120) days following the notice of Economic Terms upon material
terms which are substantially the same as the Economic Terms. In the event
Landlord does not enter into a lease for the Designated First Right Space plus
or minus ten percent (10%) thereof within such one hundred twenty (120) day
period upon material terms which are substantially the same as the Economic
Terms, then prior to leasing such Designated First Right Space to any third
party, Landlord shall repeat the procedure of offering such space to Tenant in
accordance with the provisions of this Section. Once Landlord has offered any
such First Refusal Space to Tenant and then enters into a lease for such
Designated First Refusal Space plus or minus ten percent (10%) thereof, within
the following one hundred twenty (120) days, Tenant's rights under this Section
with respect to the space so leased shall terminate. Should Tenant timely elect
to lease the Designated First Refusal Space, Landlord shall promptly prepare and
deliver to Tenant an amendment to this Lease consistent with the foregoing, and
Tenant shall execute and return same to Landlord within ten (10) business days.
Tenant's failure to timely return the amendment shall entitle Landlord to
specifically enforce Tenant's commitment to lease the Designated First Refusal
Space, to lease such space to a third party, and/or to pursue any other
available legal remedy. If Tenant fails to comply with any of the provisions of
this paragraph, Tenant's First Refusal Right herein granted shall be thereupon
extinguished. Any attempt to assign or transfer any right of interest created by
this Section other than in connection with a transfer not requiring Landlord's
consent pursuant to Section 9.4 hereof shall be void from its inception.
SECTION 2.5. LANDLORD'S RESPONSIBILITIES.
(a) Landlord shall correct, repair or replace, at Landlord's sole cost and
expense and not as a Project Cost, any non-compliance of the Building(s) or the
Premises (other than the Tenant Improvements) and the Common Areas with all
applicable building permits and codes in effect as of the Commencement Date,
including, without limitation, the provisions of Title III of the Americans With
Disabilities Act ("ADA") in effect as of the Commencement Date. Landlord shall
correct, repair or replace any non-compliance of the Building or the Premises
(other than the Tenant Improvements) and the Common Areas with any laws enacted
or effective after the Commencement Date including, without limitation,
revisions or amendments to the ADA provided that the amortized cost of such
repairs or replacements (amortized over the useful life thereof using a market
cost of funds reasonably determined by Landlord) shall be included as Project
Costs payable by Tenant. All other ADA compliance issues which pertain to the
Premises, including, without limitation, those arising as a result of
construction by Tenant of any alterations or other improvements in the Premises
(and any resulting ADA compliance requirements in the Common Areas), the Tenant
Improvements and those that arise particularly as a result of the operation of
Tenant's business and employment practices in the Premises, shall be the
responsibility of Tenant at its sole cost and expense. The repairs, corrections
or replacements required of Landlord or of Tenant under the foregoing provisions
of this Section shall be made promptly following notice of non-compliance from
any applicable governmental agency. Tenant shall promptly forward any such
notice that Tenant receives to Landlord.
(b) Landlord agrees to repair, at its sole cost and expense and not as an
Operating Expense latent defects which arise in the structural components of the
roof and Building, including floor/ceiling slabs, columns, beams, walls and the
foundations and footings of the Building during the initial Lease Term. If a
non-compliance with the foregoing warranty exists, Landlord shall, promptly
after receipt of the written notice from Tenant setting forth the nature and
extent of such non-compliance, rectify same at Landlord's sole cost and expense.
(c) If Tenant is required to make repairs to any component of the Premises
or any of its systems for which Landlord may have obtained a warranty, Landlord
shall, upon request by Tenant, use its good faith efforts to pursue its rights
under any such warranties for the benefit of Tenant. Landlord shall be under no
obligation to incur any expense in connection with asserting rights under such
warranties or guaranties against either the contractor or the manufacturer, but
shall use reasonable good faith efforts to enforce such warranties and
guaranties for Tenant's benefit.
ARTICLE III. TERM
SECTION 3.1. GENERAL. The Term shall be for the period shown in Item 5 of the
Basic Lease Provisions. Subject to the provisions of Section 3.2 below, the Term
shall commence ("Commencement Date") on the earlier of (a) the date upon which
all relevant governmental authorities have approved the Tenant Improvements in
accordance with applicable building codes, as evidenced by written approval
thereof in accordance with the building permits issued for the Tenant
Improvements or issuance of a temporary or final certificate of occupancy for
the Premises and Tenant is provided with access to the entire Premises, or (b)
the date Tenant commences use of the Premises for the conduct of business
operations. Within fifteen (15) days after possession of the Premises is
tendered to Tenant, the parties shall memorialize on a form provided by Landlord
the actual Commencement Date and the expiration date ("Expiration Date") of this
Lease. Tenant's failure to execute that form shall not affect the validity of
Landlord's determination of those dates.
SECTION 3.2. DELAY IN POSSESSION. If Landlord, for any reason whatsoever,
cannot deliver possession of the Premises to Tenant on or before the Estimated
Commencement Date, this Lease shall not be void or voidable nor shall Landlord
be liable to Tenant for any resulting loss or damage. However, Tenant shall not
be liable for any rent and the Commencement Date shall not occur until Landlord
delivers possession of the Premises and the
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Premises are in fact available for Tenant's occupancy with any Tenant
Improvements that have been approved as per Section 3.1(a) above, except that if
Landlord's failure to so deliver possession on the Estimated Commencement Date
is attributable to any action or inaction by Tenant (including, without
limitation, any Tenant Delay described in the Work Letter attached to this
Lease), then the Commencement Date shall not be advanced to the date on which
possession of the Premises is tendered to Tenant, and Landlord shall be entitled
to full performance by Tenant (including the payment of rent) from the date
Landlord would have been able to deliver the Premises to Tenant but for Tenant's
delay(s). If for any reason other than "Tenant Delays" (as defined in the Work
Letter) or other matters beyond Landlord's reasonable control, the Commencement
Date has not occurred by the date that is ninety (90) days following the
Estimated Commencement Date, then Tenant may, by written notice to Landlord
given at any time thereafter but prior to the actual occurrence of the
Commencement Date, elect to terminate this Lease. Notwithstanding the foregoing,
if at any time during the construction period, Landlord reasonably believes that
the Commencement Date will not occur on or before ninety (90) days following the
Estimated Commencement Date, Landlord shall notify Tenant in writing of such
fact and of a new outside date on or before which the Commencement Date will
occur, and Tenant must elect within ten (10) days of receipt of such notice to
either terminate this Lease or waive its right to terminate this Lease provided
the Commencement Date occurs on or prior to the new outside date established by
Landlord in such notice to Tenant. Tenant's failure to elect to terminate this
Lease within such ten (10) day period shall be deemed Tenant's waiver of its
right to terminate this Lease as provided in this paragraph as to the previous
outside date, but not as to the new outside date established by said notice.
SECTION 3.3. RIGHT TO EXTEND THIS LEASE.
(a) Provided that Tenant is not in default under any provision of this
Lease beyond the applicable cure period, either at the time of exercise of the
extension right granted herein or at the time of the commencement of such
extension, and provided further that Tenant is occupying the entire Premises and
has not assigned or sublet any of its interest in this Lease (other than in a
transaction not requiring Landlord's consent pursuant to Section 9.4 hereof),
Tenant may extend the Term of this Lease for one (1) period of sixty (60)
months. Tenant shall exercise its right to extend the Term by and only by
delivering to Landlord, not less than nine (9) months or more than twelve (12)
months prior to the expiration date of the Term, Tenant's irrevocable written
notice of its commitment to extend (the "Commitment Notice"). The Basic Rent
payable under the Lease during any extension of the Term shall be determined as
provided in the following provisions.
If Landlord and Tenant have not by then been able to agree upon the
Basic Rent for the extension of the Term, then within one hundred twenty (120)
and ninety (90) days prior to the expiration date of the Term, Landlord shall
notify Tenant in writing of the Basic Rent that would reflect the prevailing
market rental rate for a 60-month renewal of comparable space in the Project,
including any subsequent phases of Irvine Technology Center (together with any
increases thereof during the extension period) as of the commencement of the
extension period ("Landlord's Determination"). Should Tenant disagree with the
Landlord's Determination, then Tenant shall, not later than twenty (20) days
thereafter, notify Landlord in writing of Tenant's determination of those rental
terms ("Tenant's Determination"). Within ten (10) days following delivery of
the Tenant's Determination, the parties shall attempt to agree on an appraiser
to determine the fair market rental. If the parties are unable to agree in that
time, then each party shall designate an appraiser within ten (10) days
thereafter. Should either party fail to so designate an appraiser within that
time, then the appraiser designated by the other party shall determine the fair
market rental. Should each of the parties timely designate an appraiser, then
the two appraisers so designated shall appoint a third appraiser who shall,
acting alone, determine the fair market rental for the Premises. Any appraiser
designated hereunder shall have an MAI certification with not less than five (5)
years experience in the valuation of commercial industrial buildings in Orange
County, California.
Within thirty (30) days following the selection of the appraiser and
such appraiser's receipt of the Landlord's Determination and the Tenant's
Determination, the appraiser shall determine whether the rental rate determined
by Landlord or by Tenant more accurately reflects the fair market rental rate
for the 60-month renewal of the Lease for the Premises, as reasonably
extrapolated to the commencement of the extension period. Accordingly, either
the Landlord's Determination or the Tenant's Determination shall be selected by
the appraiser as the fair market rental rate for the extension period. In
making such determination, the appraiser shall consider rental comparables for
the Project, including any subsequent phases of Irvine Technology Center
(provided that if there are an insufficient number of comparables within the
Project, the appraiser shall consider rental comparables for similarly improved
space within the vicinity of the Project with appropriate adjustment for
location and quality of project), but the appraiser shall not attribute any
factor for brokerage commissions in making its determination of the fair market
rental rate, but shall consider then current market tenant improvement
allowances for lease renewals of comparable term and size. At any time before
the decision of the appraiser is rendered, either party may, by written notice
to the other party, accept the rental terms submitted by the other party, in
which event such terms shall be deemed adopted as the agreed fair market rental.
The fees of the appraiser(s) shall be borne entirely by the party whose
determination of the fair market rental rate was not accepted by the appraiser.
(b) Notwithstanding the foregoing, at any time during the period between
fifteen (15) and twelve (12) months prior to expiration of the Term (but prior
to the delivery of a Commitment Notice), Tenant may request from Landlord a
rental quote upon which Landlord is willing to lease the Premises for the
extension term to Tenant (an "Extension Term Rental Offer"). Tenant shall have
the right for a period of ten (10) business days after receipt of the Extension
Term Rental Offer to accept that offer by written notice to Landlord which
notice would constitute Tenant's exercise of its right to extend the Term upon
the terms and conditions of this Lease but at the rental rate set forth in
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the Extension Term Rental Offer. If Tenant elects to deliver a Commitment Notice
prior to requesting an Extension Term Rental Offer, fails to request an
Extension Term Rental Offer or fails to accept the Extension Term Rental Offer
within ten (10) business days after receipt thereof, Tenant shall have no
further rights under this subparagraph and provisions of subparagraph (a) of
this Section shall govern the determination of fair market rental for the
extension Term if Tenant elects to extend the Term in accordance with the
provisions of this Section.
(c) In the event Tenant elects to extend this Lease pursuant to either
subparagraph (a) or (b), within twenty (20) days after the determination of the
rent applicable to such extension, Landlord shall prepare an appropriate
amendment to this Lease for the extension period, and Tenant shall execute and
return same to Landlord within twenty (20) days. Should the fair market rental
not be established by the commencement of the extension period, then Tenant
shall continue paying rent at the rate in effect during the last month of the
initial Term, and a lump sum adjustment shall be made promptly upon the
determination of such new rental.
If Tenant fails to timely comply with any of the provisions of this
Section, Tenant's right to extend the Term shall be extinguished and the Lease
shall automatically terminate as of the expiration date of the Term, without any
extension and without any liability to Landlord. Any attempt to assign or
transfer any right or interest created by this Section shall be void from its
inception other than in connection with a transaction not requiring Landlord's
consent pursuant to Section 9.4 hereof. Tenant shall have no other right to
extend the Term beyond the single sixty (60) month extension period created by
this paragraph. Unless agreed to in a writing signed by Landlord and Tenant,
any extension of the Term, whether created by an amendment to this Lease or by a
holdover of the Premises by Tenant, or otherwise, shall be deemed a part of, and
not in addition to, any duly exercised extension period permitted by this
Section.
ARTICLE IV. RENT AND OPERATING EXPENSES
SECTION 4.1. BASIC RENT. From and after the Commencement Date, Tenant shall
pay to Landlord without deduction or offset, Basic Rent for the Premises in the
total amount shown (including subsequent adjustments, if any) in Item 6 of the
Basic Lease Provisions. Any rental adjustment shown in Item 6 shall be deemed
to occur on the specified monthly anniversary of the Commencement Date, whether
or not that date occurs at the end of a calendar month. The rent shall be due
and payable in advance commencing on the Commencement Date (as prorated for any
partial month) and continuing thereafter on the first day of each successive
calendar month of the Term. No demand, notice or invoice shall be required for
the payment of Basic Rent. An installment of rent in the amount of one (1) full
month's Basic Rent at the initial rate specified in Item 6 of the Basic Lease
Provisions shall be delivered to Landlord concurrently with Tenant's execution
of this Lease and shall be applied against the Basic Rent first due hereunder.
SECTION 4.2. OPERATING EXPENSES.
(a) Tenant shall pay to Landlord, as additional rent, Tenant's Share of
"Operating Expenses", as defined below, incurred by Landlord in the operation of
the Buildings and Project. The term "Tenant's Share" means that portion of an
Operating Expense determined by multiplying the cost of such item by a fraction,
the numerator of which is the floor area of the Premises and the denominator of
which is the total square footage of the floor area, as of the date on which the
computation is made, to be charged with such Operating Expense as equitably
allocated by Landlord.
(b) Commencing prior to the start of the first full "Expense Recovery
Period" (as defined below) of the Lease, and prior to the start of each full or
partial Expense Recovery Period thereafter, Landlord shall give Tenant a written
estimate of the amount of Tenant's Share of Operating Expenses for the Expense
Recovery Period. Tenant shall pay the estimated amounts to Landlord in equal
monthly installments, in advance, with Basic Rent. If Landlord has not
furnished its written estimate for any Expense Recovery Period by the time set
forth above, Tenant shall continue to pay cost reimbursements at the rates
established for the prior Expense Recovery Period, if any; provided that when
the new estimate is delivered to Tenant, Tenant shall, at the next monthly
payment date, pay any accrued cost reimbursements based upon the new estimate.
For purposes hereof, "Expense Recovery Period" shall mean every twelve month
period during the Term (or portion thereof for the first and last lease years)
commencing July 1 and ending June 30.
(c) Within one hundred twenty (120) days after the end of each Expense
Recovery Period, Landlord shall furnish to Tenant a statement showing in
reasonable detail the actual or prorated Operating Expenses incurred by Landlord
during the period, and the parties shall within thirty (30) days thereafter make
any payment or allowance necessary to adjust Tenant's estimated payments, if
any, to the actual Tenant's Share as shown by the annual statement. Any delay or
failure by Landlord in delivering any statement hereunder shall not constitute a
waiver of Landlord's right to require Tenant to pay Tenant's Share of Operating
Expenses pursuant hereto. Any amount due Tenant shall be credited against
installments next coming due under this Section 4.2, and any deficiency shall be
paid by Tenant together with the next installment. If Tenant has not made
estimated payments during the Expense Recovery Period, any amount owing by
Tenant pursuant to subsection (a) above shall be paid to Landlord in accordance
with Article XVI. Should Tenant fail to object in writing to Landlord's
determination of actual Operating Expenses within one hundred eighty (180) days
following delivery of Landlord's expense statement, Landlord's determination of
actual Operating Expenses for the applicable Expense Recovery Period shall be
conclusive and binding on the parties and any future claims to the contrary
shall be barred.
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(d) Even though the Lease has terminated and the Tenant has vacated the
Premises, when the final determination is made of Tenant's Share of Operating
Expenses for the Expense Recovery Period in which the Lease terminates, Tenant
shall upon notice pay the entire increase due over the estimated expenses paid.
Conversely, any overpayment made in the event expenses decrease shall be rebated
by Landlord to Tenant.
(e) If, at any time during any Expense Recovery Period, any one or more of
the Operating Expenses are increased to a rate(s) or amount(s) in excess of the
rate(s) or amount(s) used in calculating the estimated expenses for the year,
then the estimate of Tenant's Share of Operating Expenses shall be increased for
the month in which such rate(s) or amount(s) becomes effective and for all
succeeding months by an amount equal to Tenant's Share of the increase.
Landlord shall give Tenant written notice of the amount or estimated amount of
the increase, the month in which the increase will become effective, Tenant's
Share thereof and the month for which the payments are due. Tenant shall pay
the increase to Landlord as a part of Tenant's monthly payments of estimated
expenses as provided in paragraph (b) above, commencing with the month in which
effective.
(f) The term "Operating Expenses" shall mean and include all "Project
Costs" (as hereafter defined) and "Property Taxes" (as hereafter defined).
(g) The term "Project Costs" shall include all expenses of operation and
maintenance of the Buildings and the Project, together with all appurtenant
Common Areas (as defined in Section 6.2), and shall include the following
charges by way of illustration but not limitation: water and sewer charges;
insurance premiums or reasonable premium equivalents should Landlord elect to
self-insure any risk that Landlord is authorized to insure hereunder; license,
permit, and inspection fees; heat; light; power; janitorial services to any
interior Common Areas; air conditioning; supplies; materials; equipment; tools;
the cost of any environmental, insurance, tax or other consultant utilized by
Landlord in connection with the Buildings and/or Project; establishment of
reasonable reserves for replacements and/or repair of the Buildings and/or
Common Area improvements, equipment and supplies; costs incurred in connection
with compliance of any laws or changes in laws applicable to the Buildings or
the Project (except for changes in laws that pertain particularly to Tenant's
use of the Premises and/or to the interior of the Premises only which shall be
the sole responsibility of Tenant at its cost) as provided in Section 2.5; the
cost of any capital repairs or replacements (other than tenant improvements for
specific tenants) to the extent of the amortized amount thereof over the useful
life of such capital investments calculated at a market cost of funds, all as
determined by Landlord, for each such year of useful life during the Term; costs
associated with the procurement and maintenance of an air conditioning, heating
and ventilation service agreement, and procurement and maintenance of an
intrabuilding network cable service agreement for any intrabuilding network
cable telecommunications lines within the Project, and any other installation,
maintenance, repair and replacement costs associated with such lines; labor;
reasonably allocated wages and salaries, fringe benefits, and payroll taxes for
administrative and other personnel directly applicable to the Buildings and/or
Project, including both Landlord's personnel and outside personnel; any expense
incurred pursuant to Sections 6.1, 6.2, 6.4, 7.2, and 10.2; and a reasonable
overhead/management fee for the professional operation of the Project. It is
understood that Project Costs shall include competitive charges for direct
services provided by any subsidiary or division of Landlord.
(h) The term "Property Taxes" as used herein shall include the following:
(i) all real estate taxes, as such property taxes may be reassessed from time to
time; and (ii) other taxes, charges and assessments which are levied with
respect to this Lease or to the Buildings and/or the Project, and any
improvements, fixtures and equipment and other property of Landlord located in
the Buildings and/or the Project, except that general net income and franchise
taxes imposed against Landlord shall be excluded; and (iii) all assessments and
fees for public improvements, services, and facilities and impacts thereon,
including, without limitation, arising out of any Community Facilities
Districts, "Xxxxx Xxxx" districts, similar assessment districts, and any traffic
impact mitigation assessments or fees; (iv) any tax, surcharge or assessment
which shall be levied in addition to or in lieu of real estate or personal
property taxes, other than taxes covered by Article VIII; and (v) costs and
expenses incurred in contesting the amount or validity of any Property Tax by
appropriate proceedings.
(i) Notwithstanding the provisions of this Section 4.2 to the contrary,
Operating Expenses shall not include any of the following:
(1) Commissions, attorneys' fees, costs, disbursements and other
expenses incurred by Landlord or its agents in connection with negotiations for
leases with tenants, other occupants or prospective tenants or other occupants
of the Project, and similar costs incurred in connection with disputes with
and/or enforcement of any lease with tenants, other occupants, or prospective
tenants or other occupants of the Project;
(2) "Tenant allowances", "tenant concessions", work letter payments,
and other costs or expenses (including permit, license and inspection fees)
incurred in completing, fixturing, furnishing, renovating or otherwise
improving, decorating or redecorating space for tenants or other occupants of
the Project, or vacant, leasable space in the Project, including space
planning/interior design fees for same;
(3) Depreciation and other "non-cash" expense items;
(4) Except as specifically authorized in this Lease, costs of a
capital nature, including, but not limited to, capital additions, capital
improvements, capital alterations, capital replacements, capital equipment and
capital tools, and/or capital redesign;
7
(5) Services, items and benefits for which Tenant or any other tenant
or occupant of the Project specifically reimburses Landlord or for which Tenant
or any other tenant or occupant of the Project pays third persons;
(6) Costs or expenses (including fines, penalties and legal fees)
incurred due to the violation by Landlord of this Lease or of the leases of
other tenants in the Project, that would not have been incurred but for such
violation.
(7) Penalties for late payment of any Operating Expenses by Landlord,
including, without limitation, with respect to Property Taxes, equipment leases,
etc.;
(8) Payments in respect of overhead and/or profit to any subsidiary
or affiliate of Landlord, as a result of a non-competitive selection process for
services (other than the management fee) on or to the Project, or for goods,
supplies or other materials, to the extent that the costs of such services,
goods, supplies or materials exceed the costs that would have been paid if the
services, goods, supplies or materials had been provided by parties unaffiliated
with Landlord, of similar skill, competence and experience, on a competitive
basis;
(9) Payments of principal, finance charges or interest on debt or
amortization on any deed of trust or other debt encumbering the Project, and
rental payments (or increases in same) under any ground or underlying lease or
leases encumbering the Project (except to the extent the same may be made to pay
or reimburse, or may be measured by Property Taxes);
(10) Except for a management fee which is reasonable and commercially
competitive for similar projects in the area, costs of Landlord's general
overhead and general administrative expenses (individual, partnership or
corporate, as the case may be) and wages, salaries and other compensation and
benefits (as well as adjustments thereto) for all employees and personnel of
Landlord above the level of manager for the Project, which costs would not be
chargeable to Operating Expenses in accordance with generally accepted
accounting principles, consistently applied;
(11) Rentals and other related expenses, if any, incurred in leasing
air conditioning systems or other equipment ordinarily considered to be of a
capital nature, except equipment which is used in providing janitorial services
and which is not affixed to the Project and equipment which is leased on a
temporary basis in emergency situations;
(12) Advertising and promotional expenses;
(13) Costs or expenses for the acquisition of sculpture, paintings or
other works of art, but not the reasonable expenses of maintaining, repairing
and insuring same;
(14) Costs for which Landlord is compensated through or reimbursed by
insurance;
(15) Contributions to political or charitable organizations;
(16) Costs incurred in removing the property of former tenants and/or
other occupants of the Project;
(17) The costs of any "tap fees" or one-time lump sum sewer, water or
other utility connection fees for the Project; and
(18) "In house" legal and/or accounting fees.
(19) Any costs for the fulfillment of obligations which are
specifically allocated to Landlord pursuant to the provisions of this Lease;
(20) Except as set forth in Section 5.3 hereof, any costs related to
remediation, cleanup, removal, disposal, neutralization or other treatment of
Hazardous Materials.
(21) Costs recovered by Landlord to the extent such cost recovery
allows Landlord to recover from tenants of the Building or Project more than
100% of Operating Expenses on account of any Expense Recovery Period.
SECTION 4.3. SECURITY DEPOSIT. Concurrently with Tenant's delivery of this
Lease, Tenant shall deposit with Landlord the sum, if any, stated in Item 9 of
the Basic Lease Provisions, to be held by Landlord as security for the full and
faithful performance of Tenant's obligations under this Lease (the "Security
Deposit"). Subject to the last sentence of this Section, the Security Deposit
shall be understood and agreed to be the property of Landlord upon Landlord's
receipt thereof, and may be utilized by Landlord in its discretion towards the
payment of all prepaid expenses by Landlord for which Tenant would be required
to reimburse Landlord under this Lease, including, without limitation, brokerage
commissions and Tenant Improvement costs. Upon any default by Tenant after
expiration of the applicable cure period, including specifically Tenant's
failure to pay rent or to abide by its obligations under Sections 7.1 and 15.3
below, whether or not Landlord is informed of or has knowledge of the default,
the Security Deposit shall be deemed to be automatically and immediately
applied, without waiver of any rights Landlord may have under this Lease or at
law or in equity as a result of the default, as a setoff for full or partial
compensation for that default. If any portion of the Security Deposit is
applied after a default by Tenant, Tenant shall within fifteen (15) days after
written
8
demand by Landlord deposit cash with Landlord in an amount sufficient to restore
the Security Deposit to its original amount. Landlord shall not be required to
keep this Security Deposit separate from its general funds, and Tenant shall not
be entitled to interest on the Security Deposit. If Tenant fully performs its
obligations under this Lease, the Security Deposit shall be returned to Tenant
(or, at Landlord's option, to the last assignee of Tenant's interest in this
Lease) after the expiration of the Term, provided that Landlord may retain the
Security Deposit to the extent and until such time as all amounts due from
Tenant in accordance with this Lease have been determined and paid in full. The
obligation of Landlord to return the unapplied balance of the Security Deposit
to Tenant in accordance with the terms of this Lease shall be personal to
Landlord and shall survive as an obligation of Landlord notwithstanding any
transfer of Landlord's interest in this Lease unless and until such time as
Landlord has complied with the provisions of Section 1950.7 of the California
Civil Code or any successor statute thereto.
ARTICLE V. USES
SECTION 5.1. USE. Tenant shall use the Premises only for the purposes stated
in Item 3 of the Basic Lease Provisions, all in accordance with applicable laws
and restrictions (subject to the provisions of Section 2.5) and pursuant to
approvals to be obtained by Tenant from all relevant and required governmental
agencies and authorities. The parties agree that any contrary use shall be
deemed to cause material and irreparable harm to Landlord and shall entitle
Landlord to injunctive relief in addition to any other available remedy.
Tenant, at its expense, shall procure, maintain and make available for
Landlord's inspection throughout the Term, all governmental approvals, licenses
and permits required for the proper and lawful conduct of Tenant's permitted use
of the Premises. Tenant shall not do or permit anything to be done in or about
the Premises which will in any way unreasonably interfere with the rights of
other occupants of the Buildings or the Project, or use or allow the Premises to
be used for any unlawful purpose, nor shall Tenant permit any nuisance or commit
any waste in the Premises or the Project. Tenant shall not perform any work or
conduct any business whatsoever in the Project other than inside the Premises.
Tenant shall not do or permit to be done anything which will invalidate or
increase the cost of any insurance policy(ies) covering the Buildings, the
Project and/or their contents (unless Tenant pays any such increase in cost),
and shall comply with all applicable insurance underwriters rules and the
requirements of the Pacific Fire Rating Bureau or any other organization
performing a similar function. Tenant shall comply at its expense with all
present and future laws, ordinances, restrictions, regulations, orders, rules
and requirements of all governmental authorities that pertain to Tenant or its
use of the Premises, including, without limitation, all federal and state
occupational health and safety requirements, whether or not Tenant's compliance
will necessitate expenditures or interfere with its use and enjoyment of the
Premises. Tenant shall comply at its expense with all present and future
covenants, conditions, easements or restrictions now or hereafter affecting or
encumbering the Buildings and/or Project, and any reasonable amendments or
modifications thereto, including, without limitation, the payment by Tenant of
any periodic or special dues or assessments charged against the Premises or
Tenant which may be allocated to the Premises or Tenant in accordance with the
provisions thereof. Tenant shall promptly upon demand reimburse Landlord for
any additional insurance premium charged by reason of Tenant's failure to comply
with the provisions of this Section, and shall indemnify Landlord from any
liability and/or expense resulting from Tenant's noncompliance.
SECTION 5.2. SIGNS. Provided Tenant continues to occupy the entire Premises,
Tenant shall have the exclusive right to two (2) exterior Building top signs on
Building 1, and the nonexclusive right to one (1) exterior eye-brow sign on
Building 2. In the event that Tenant, at any time during the Term, shall lease
and occupy fifty percent (50%) or more of xxx xxxxx xxxx xx Xxxxxxxx 0, Xxxxxx
shall have the right to install one (1) non-exclusive building top sign in lieu
of and not in addition to the exterior eye brow sign on Building 2, provided
building top signage space is then available on Building 2. Except as provided
in the foregoing or as otherwise approved in writing by Landlord, in its sole
discretion, Tenant shall have no right to maintain identification signs in any
location in, on or about the Premises, the Buildings or the Project and shall
not place or erect any signs, displays or other advertising materials that are
visible from the exterior of the Buildings. The text of Tenant's signs may
include one or more of the following names or any combination thereof, provided
such entity is in fact conducting its business within the Premises:
XxxXxxx.xxx; 1800 XxxXxxx.xxx; New Century; Prime West Funding; Western Capital
Mortgage; New Century Mortgage; New Century Mortgage Corporation. The size,
design, graphics, material, style, color and other physical aspects of any
permitted sign shall be subject to Landlord's written approval prior to
installation (which approval may be withheld in Landlord's discretion), all
covenants, conditions or restrictions encumbering the Premises, Landlord's
signage program for the Project, as in effect from time to time and approved by
the City in which the Premises are located ("Signage Criteria"), and any
applicable municipal or other governmental permits and approvals. Tenant
acknowledges having received and reviewed a copy of the current Signage Criteria
for the Project. Tenant shall be responsible for the cost of any permitted
sign, including the fabrication, installation, maintenance and removal thereof.
If Tenant fails to maintain its sign, or if Tenant fails to remove same upon
termination of this Lease and repair any damage caused by such removal, Landlord
may do so at Tenant's expense.
SECTION 5.3. HAZARDOUS MATERIALS.
(a) For purposes of this Lease, the term "Hazardous Materials" includes
(i) any "hazardous materials" as defined in Section 25501(n) of the California
Health and Safety Code, (ii) any other substance or matter which results in
liability to any person or entity from exposure to such substance or matter
under any statutory or common law theory, and (iii) any substance or matter
which is in excess of permitted levels set forth in any federal, California or
local law or regulation pertaining to any hazardous or toxic substance, material
or waste.
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(b) Tenant shall not cause or knowingly permit any Hazardous Materials to
be brought upon, stored, used, generated, released or disposed of on, under,
from or about the Premises (including, without limitation, the soil and
groundwater thereunder) without the prior written consent of Landlord.
Notwithstanding the foregoing, Tenant shall have the right, without obtaining
prior written consent of Landlord, to utilize within the Premises standard
office products that may contain Hazardous Materials (such as photocopy toner,
"White Out", and the like), provided however, that (i) Tenant shall maintain
-------- -------
such products in their original retail packaging, shall follow all instructions
on such packaging with respect to the storage, use and disposal of such
products, and shall otherwise comply with all applicable laws with respect to
such products, and (ii) all of the other terms and provisions of this Section
5.3 shall apply with respect to Tenant's storage, use and disposal of all such
products. Landlord may, in its sole discretion, place such conditions as
Landlord deems appropriate with respect to any such Hazardous Materials, and may
further require that Tenant demonstrate that any such Hazardous Materials are
necessary or useful to Tenant's business and will be generated, stored, used and
disposed of in a manner that complies with all applicable laws and regulations
pertaining thereto and with good business practices. Tenant understands that
Landlord may utilize an environmental consultant to assist in determining
conditions of approval in connection with the storage, generation, release,
disposal or use of Hazardous Materials by Tenant on or about the Premises,
and/or to conduct periodic inspections of the storage, generation, use, release
and/or disposal of such Hazardous Materials by Tenant on and from the Premises,
and Tenant agrees that any reasonable costs incurred by Landlord in connection
therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder
upon demand if Tenant is in violation of its obligations under this Section.
(c) Prior to the execution of this Lease, Tenant shall complete, execute
and deliver to Landlord an Environmental Questionnaire and Disclosure Statement
(the "Environmental Questionnaire") in the form of Exhibit B attached hereto.
---------
The completed Environmental Questionnaire shall be deemed incorporated into this
Lease for all purposes, and Landlord shall be entitled to rely fully on the
information contained therein. On each anniversary of the Commencement Date
until the expiration or sooner termination of this Lease, Tenant shall disclose
to Landlord in writing the names and amounts of all Hazardous Materials which
were stored, generated, used, released and/or disposed of on, under or about the
Premises for the twelve-month period prior thereto, and which Tenant desires to
store, generate, use, release and/or dispose of on, under or about the Premises
for the succeeding twelve-month period. In addition, to the extent Tenant is
permitted to utilize Hazardous Materials upon the Premises, Tenant shall
promptly provide Landlord with complete and legible copies of all the following
environmental documents relating thereto: reports filed pursuant to any self-
reporting requirements; permit applications, permits, monitoring reports,
workplace exposure and community exposure warnings or notices and all other
reports, disclosures, plans or documents (even those which may be characterized
as confidential) relating to water discharges, air pollution, waste generation
or disposal, and underground storage tanks for Hazardous Materials; orders,
reports, notices, listings and correspondence (even those which may be
considered confidential) of or concerning the release, investigation of,
compliance, cleanup, remedial and corrective actions, and abatement of Hazardous
Materials; and all complaints, pleadings and other legal documents filed by or
against Tenant related to Tenant's use, handling, storage, release and/or
disposal of Hazardous Materials.
(d) Landlord and its agents shall have the right, but not the obligation,
to inspect, sample and/or monitor the Premises and/or the soil or groundwater
thereunder at any time to determine whether Tenant is complying with the terms
of this Section 5.3, and in connection therewith Tenant shall provide Landlord
with full access to all relevant facilities, records and personnel after
reasonable prior notice under the circumstances except in the event of an
emergency when no advance notice shall be required. If Tenant is not in
compliance with any of the provisions of this Section 5.3, or in the event of a
release of any Hazardous Material on, under or about the Premises caused or
knowingly permitted by Tenant, its agents, employees, contractors, licensees or
invitees, Landlord and its agents shall have the right, but not the obligation,
without limitation upon any of Landlord's other rights and remedies under this
Lease, to immediately enter upon the Premises without notice and to discharge
Tenant's obligations under this Section 5.3 at Tenant's expense, including,
without limitation, the taking of emergency or long-term remedial action.
Landlord and its agents shall endeavor to minimize interference with Tenant's
business in connection therewith, but shall not be liable for any such
interference. In addition, Landlord, at Tenant's expense, shall have the right,
but not the obligation, to join and participate in any legal proceedings or
actions initiated in connection with any claims arising out of the storage,
generation, use, release and/or disposal by Tenant or its agents, employees,
contractors, licensees or invitees of Hazardous Materials on, under, from or
about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about
the Premises or the Project caused or knowingly permitted by Tenant or its
agents, employees, contractors, licensees or invitees results in (i) injury to
any person, (ii) injury to or any contamination of the Premises or the Project,
or (iii) injury to or contamination of any real or personal property wherever
situated, Tenant, at its expense, shall promptly take all actions necessary to
return the Premises and the Project and any other affected real or personal
property owned by Landlord to the condition existing prior to the introduction
of such Hazardous Materials and to remedy or repair any such injury or
contamination, including without limitation, any cleanup, remediation, removal,
disposal, neutralization or other treatment of any such Hazardous Materials.
Notwithstanding the foregoing, Tenant shall not, without Landlord's prior
written consent, take any remedial action in response to the presence of any
Hazardous Materials on, under or about the Premises or the Project or any other
affected real or personal property owned by Landlord or enter into any similar
agreement, consent, decree or other compromise with any governmental agency with
respect to any Hazardous Materials claims; provided however, Landlord's prior
written consent shall not be necessary in the event that the presence of
Hazardous Materials on, under or about the Premises or the Project or any other
affected real or personal property owned by Landlord (i) imposes an immediate
threat to the health, safety or welfare of any individual or (ii) is of such a
nature that an immediate remedial response is necessary and it is not possible
to obtain Landlord's consent before taking such action.
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To the fullest extent permitted by law, Tenant shall indemnify, hold harmless,
protect and defend (with attorneys acceptable to Landlord) Landlord and any
successors to all or any portion of Landlord's interest in the Premises and the
Project and any other real or personal property owned by Landlord from and
against any and all liabilities, losses, damages, diminution in value,
judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses
(including, without limitation, attorneys' fees, court costs and other
professional expenses), whether foreseeable or unforeseeable, arising directly
or indirectly out of the use, generation, storage, treatment, release, on- or
off-site disposal or transportation of Hazardous Materials on, into, from, under
or about the Premises, the Buildings and the Project and any other real or
personal property owned by Landlord caused or knowingly permitted by Tenant, its
agents, employees, contractors, licensees or invitees, specifically including,
without limitation, the cost of any required or necessary repair, restoration,
cleanup or detoxification of the Premises, the Buildings and the Project and any
other real or personal property owned by Landlord, and the preparation of any
closure or other required plans, whether or not such action is required or
necessary during the Term or after the expiration of this Lease. If Landlord at
any time discovers that Tenant or its agents, employees, contractors, licensees
or invitees may have caused or knowingly permitted the release of a Hazardous
Material on, under, from or about the Premises or the Project or any other real
or personal property owned by Landlord, Tenant shall, at Landlord's request,
immediately prepare and submit to Landlord a comprehensive plan, subject to
Landlord's approval, specifying the actions to be taken by Tenant to return the
Premises or the Project or any other real or personal property owned by Landlord
to the condition existing prior to the introduction of such Hazardous Materials.
Upon Landlord's approval of such cleanup plan, Tenant shall, at its expense, and
without limitation of any rights and remedies of Landlord under this Lease or at
law or in equity, immediately implement such plan and proceed to cleanup such
Hazardous Materials in accordance with all applicable laws and as required by
such plan and this Lease. The provisions of this subsection (e) shall expressly
survive the expiration or sooner termination of this Lease.
(f) Landlord hereby discloses to Tenant, and Tenant hereby acknowledges,
certain facts relating to Hazardous Materials at the Project known by Landlord
to exist as of the date of this Lease, as more particularly described in Exhibit
-------
C attached hereto. Tenant shall have no liability or responsibility with
-
respect to the Hazardous Materials facts described in Exhibit C, nor with
---------
respect to any Hazardous Materials which Tenant proves were not caused or
knowingly permitted by Tenant, its agents, employees, contractors, licensees or
invitees. Notwithstanding the preceding two sentences, Tenant agrees to notify
its agents, employees, contractors, licensees, and invitees of any exposure or
potential exposure to Hazardous Materials at the Premises that Landlord brings
to Tenant's attention.
ARTICLE VI. COMMON AREAS; SERVICES
SECTION 6.1. UTILITIES AND SERVICES. Tenant shall be responsible for and
shall pay promptly, directly to the appropriate supplier, all charges for water,
gas, electricity, sewer, heat, light, power, telephone, refuse pickup,
janitorial service, interior landscape maintenance and all other utilities,
materials and services furnished directly to Tenant or the Premises or used by
Tenant in, on or about the Premises during the Term, together with any taxes
thereon. If any utilities or services are not separately metered or assessed to
Tenant, Landlord shall make a reasonable determination of Tenant's proportionate
share of the cost of such utilities and services and Tenant shall pay such
amount to Landlord, as an item of additional rent, within fifteen (15) days
after receipt of Landlord's statement or invoice therefor. Alternatively,
Landlord may elect to include such cost in the definition of Building Costs in
which event Tenant shall pay Tenant's proportionate share of such costs in the
manner set forth in Section 4.2. Landlord shall not be liable for damages or
otherwise for any failure or interruption of any utility or other service
furnished to the Premises, and no such failure or interruption shall be deemed
an eviction or entitle Tenant to terminate this Lease or withhold or xxxxx any
rent due hereunder. Landlord shall at all reasonable times have free access to
all electrical and mechanical installations of Landlord. Notwithstanding the
foregoing, if as a result of the actions of Landlord, its agents, contractors or
employees or the inactions of Landlord if Landlord is required to act under this
Lease, for more than three (3) consecutive business days following written
notice to Landlord there is no HVAC service or electricity service to all or a
portion of the Premises, or such an interruption of other essential utilities
and building services, such as fire protection or water, so that all or a
portion of the Premises cannot be used by Tenant, then Tenant's obligation to
pay Basic Rent and Operating Expenses (or an equitable portion of such Basic
Rent and Operating Expenses to the extent that less than all of the Premises are
affected) shall thereafter be abated until the Premises are again useable by
Tenant; 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 Basic Rent or
Operating Expenses. Any disputes concerning the foregoing shall be resolved by
JAMS arbitration pursuant to Section 22.7 of this Lease. The foregoing
provisions shall not apply in case of damage to, or destruction of, the
Premises, which shall be governed by the provisions of Article XI of the Lease.
SECTION 6.2. OPERATION AND MAINTENANCE OF COMMON AREAS. During the Term,
Landlord shall operate, maintain and repair all Common Areas within the
Buildings and the Project. The term "Common Areas" shall mean all areas within
the exterior boundaries of the Buildings and other buildings in the Project
which are not held for exclusive use by persons entitled to occupy space, and
all other appurtenant areas and improvements provided by Landlord for the common
use of Landlord and tenants and their respective employees and invitees,
including, without limitation, parking areas and structures, driveways,
sidewalks, landscaped and planted areas, hallways and interior stairwells not
located within the premises of any tenant, common electrical rooms and roof
access entries, common entrances and lobbies, elevators, and restrooms not
located within the premises of any tenant.
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Building hours shall be Monday through Friday 7:00 a.m. to 6:00 p.m., and
Saturday 9:00 a.m. to 1:00 p.m., President's Day, Memorial Day, Independence
Day, Labor Day, Thanksgiving Day, Christmas Day, New Year's Day and Sundays
excluded. Landlord may install access control systems as it deems advisable for
the Building. The reasonable cost of maintaining and repairing any such access
control systems (but not the cost of installation of, or any "capital" cost of
replacing, said systems) shall be included in Project Costs under Section 4.2.
SECTION 6.3. USE OF COMMON AREAS. The occupancy by Tenant of the Premises
shall include the use of the Common Areas in common with Landlord and with all
others for whose convenience and use the Common Areas may be provided by
Landlord, subject, however, to compliance with all reasonable and non-
discriminatory rules and regulations as are prescribed from time to time by
Landlord. Landlord shall operate and maintain the Common Areas in compliance
with applicable law, consistent with the operation of comparable projects in the
area in which the Project is located and otherwise in the manner Landlord may
determine to be appropriate. All costs incurred by Landlord for the maintenance
and operation of the Common Areas shall be included in Project Costs unless any
particular cost incurred can be charged to a specific tenant of the Project.
Landlord shall at all times during the Term have exclusive control of the Common
Areas, and may restrain any use or occupancy, except as authorized by Landlord's
rules and regulations. Tenant shall keep the Common Areas clear of any
obstruction or unauthorized use related to Tenant's operations. Landlord may
temporarily close any portion of the Common Areas for repairs, remodeling and/or
alterations, to prevent a public dedication or the accrual of prescriptive
rights, or for any other reason deemed sufficient by Landlord, without liability
to Landlord; provided, however, that Landlord shall use commercially reasonable
efforts to avoid unreasonable interference with Tenant's access to or use of the
Premises in connection with such activities.
SECTION 6.4. PARKING. Tenant shall be entitled to the number of vehicle
parking spaces set forth in Item 14 of the Basic Lease Provisions, which spaces
shall be unreserved and unassigned, on those portions of the Common Areas
designated by Landlord for parking. Tenant shall not use more parking spaces
than such number. All parking spaces shall be used only for parking by vehicles
no larger than full size passenger automobiles or pickup trucks. Tenant shall
not permit or allow any vehicles that belong to or are controlled by Tenant or
Tenant's employees, suppliers, shippers, customers or invitees to be loaded,
unloaded or parked in areas other than those designated by Landlord for such
activities. If Tenant permits or allows any of the prohibited activities
described above, then Landlord shall have the right, without notice, in addition
to such other rights and remedies that Landlord may have, to remove or tow away
the vehicle involved and charge the costs to Tenant. Parking within the Common
Areas shall be limited to striped parking stalls, and no parking shall be
permitted in any driveways, access ways or in any area which would prohibit or
impede the free flow of traffic within the Common Areas. There shall be no
overnight parking of any vehicles of any kind for periods longer than 48 hours
unless otherwise authorized by Landlord, and vehicles which have been abandoned
or parked in violation of the terms hereof may be towed away at the owner's
expense. Nothing contained in this Lease shall be deemed to create liability
upon Landlord for any damage to motor vehicles of visitors or employees, for any
loss of property from within those motor vehicles, or for any injury to Tenant,
its visitors or employees, unless ultimately determined to be caused by the sole
active negligence or willful misconduct of Landlord. Landlord shall have the
right to establish, and from time to time amend, and to enforce against all
users all reasonable and non-discriminatory rules and regulations (including
the designation of areas for employee parking) that Landlord may deem necessary
and advisable for the proper and efficient operation and maintenance of parking
within the Common Areas. Landlord shall have the right to construct, maintain
and operate lighting facilities within the parking areas; to change the area,
level, location and arrangement of the parking areas and improvements therein;
to restrict parking by tenants, their officers, agents and employees to employee
parking areas; to enforce parking charges (by operation of meters or otherwise);
and to do and perform such other acts in and to the parking areas and
improvements therein as, in the use of good business judgment, Landlord shall
determine to be advisable; provided, however, that Landlord shall use
commercially reasonable efforts to avoid unreasonable interference with Tenant's
access to or use of the Premises in connection with such activities. Any person
using the parking area shall observe all directional signs and arrows and any
posted speed limits. In no event shall Tenant interfere with the use and
enjoyment of the parking area by other tenants of the Buildings or their
employees or invitees. Parking areas shall be used only for parking vehicles.
Washing, waxing, cleaning or servicing of vehicles, or the storage of vehicles
for 24-hour periods, is prohibited unless otherwise authorized by Landlord.
Tenant shall be liable for any damage to the parking areas caused by Tenant or
Tenant's employees, suppliers, shippers, customers or invitees, including,
without limitation, damage from excess oil leakage. Tenant shall have no right
to install any fixtures, equipment or personal property in the parking areas.
Landlord agrees that it shall not grant reserved parking in the areas designated
on Exhibit Y-1 during the initial Term of this Lease.
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During the initial 60-month Term of this Lease, within fifteen (15)
business days following the written request of Tenant, Landlord shall propose
the location and economic terms for Tenant to license additional vehicle parking
spaces in addition to the vehicle spaces set forth in Item 14 of the Basic Lease
Provisions. The location of said additional spaces shall be subject to
availability in Landlord's sole and absolute discretion, and the terms for the
license of such additional parking shall include a monthly use parking charge
and repair and maintenance charges, and may include site preparation and/or
demolition charges. The license of such additional parking shall be extended to
Tenant on a month-to-month basis, shall be non-exclusive and unassigned unless
otherwise designated by Landlord, and shall be otherwise subject to the terms
and conditions of Section 6.4 above. If Tenant accepts Landlord's proposal for
the license of such additional parking within ten (10) days following receipt of
said proposal from Landlord, Landlord shall prepare a license agreement, in form
reasonably acceptable to Tenant for execution by Landlord and Tenant, confirming
the license of said additional spaces at the location and on the terms proposed
to and accepted by Tenant.
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SECTION 6.5. CHANGES AND ADDITIONS BY LANDLORD. Landlord reserves the right
to make alterations or additions to the Buildings or the Project, or to the
attendant fixtures, equipment and Common Areas. Landlord may at any time
relocate or remove any of the various buildings, parking areas, and other Common
Areas, and may add buildings and areas to the Project from time to time. No
change shall entitle Tenant to any abatement of rent or other claim against
Landlord, provided that the change does not deprive Tenant of reasonable access
to or use of the Premises or the parking areas.
ARTICLE VII. MAINTAINING THE PREMISES
SECTION 7.1. TENANT'S MAINTENANCE AND REPAIR. Tenant at its sole expense
shall make all repairs necessary to keep the Premises in the condition as
existed on the Commencement Date (or on any later date that the improvements may
have been installed), excepting ordinary wear and tear, and, subject to the
provisions of Article XI, damage from casualty, including, without limitation,
all glass, windows, doors, door closures, hardware, fixtures, fire extinguisher
equipment and other equipment. Any damage or deterioration of the Premises
shall not be deemed ordinary wear and tear if the same could have been prevented
by good maintenance practices by Tenant. As part of its maintenance obligations
hereunder, Tenant shall, at Landlord's request, provide Landlord with copies of
all maintenance schedules, reports and notices prepared by, for or on behalf of
Tenant. All repairs shall be at least equal in quality to the original work,
shall be made only by a licensed contractor approved in writing in advance by
Landlord (which approval shall not be unreasonably withheld) and shall be made
only at the time or times approved by Landlord. Any contractor utilized by
Tenant shall be subject to Landlord's standard requirements for contractors, as
modified from time to time. Landlord may impose reasonable restrictions and
requirements with respect to repairs, as provided in Section 7.3, and the
provisions of Section 7.4 shall apply to all repairs. Alternatively, Landlord
may elect to make any such repair on behalf of Tenant and at Tenant's expense,
and Tenant shall promptly reimburse Landlord for all costs incurred upon
submission of an invoice.
SECTION 7.2. LANDLORD'S MAINTENANCE AND REPAIR. Subject to Section 7.1 and
Article XI, Landlord shall provide service, maintenance and repair with respect
to the structural components of the Buildings and the roof, foundations, and
footings of the Buildings, all landscaping, walkways, parking areas, Common
Areas, exterior lighting, the air conditioning, ventilating or heating equipment
and the electrical, mechanical and plumbing systems, servicing the Premises, and
the exterior surfaces of the exterior walls of the Buildings, except that Tenant
at its expense shall make all repairs which Landlord deems reasonably necessary
as a result of the negligence of Tenant, its agents, employees, invitees,
subtenants or contractors. Landlord shall have the right to employ or designate
any reputable person or firm, including any employee or agent of Landlord or any
of Landlord's affiliates or divisions, to perform any service, repair or
maintenance function. Landlord need not make any other improvements or repairs
except as specifically required by law, subject to the provisions of Section
2.5, or as required under this Lease, and nothing contained in this Section
shall limit Landlord's right to reimbursement from Tenant for maintenance,
repair costs and replacement costs as provided elsewhere in this Lease. Tenant
understands that it shall not make repairs at Landlord's expense or by rental
offset. Tenant further understands that Landlord shall not be required to make
any repairs to the roof, foundations, footings, structural, electrical or
mechanical systems unless and until Tenant has notified Landlord in writing of
the need for such repair and Landlord shall have a reasonable period of time
thereafter to commence and complete said repair, if warranted. All costs of any
maintenance and repairs on the part of Landlord provided hereunder shall be
considered part of Project Costs.
SECTION 7.3. ALTERATIONS. Tenant shall make no alterations, additions or
improvements to the Premises without the prior written consent of Landlord,
which consent may be given or withheld in Landlord's sole discretion.
Notwithstanding the foregoing, Landlord shall not unreasonably withhold its
consent to any alterations, additions or improvements to the Premises which cost
less than One Dollar ($1.00) per square foot of the improved portions of the
Premises (excluding warehouse square footage) and do not (i) affect the exterior
of the Buildings or outside areas (or be visible from adjoining sites), or (ii)
affect or penetrate any of the structural portions of the Buildings, including,
but not limited to, the roof, or (iii) require any change to the basic floor
plan of the Premises, any change to any structural or mechanical systems of the
Premises, or any governmental permit as a prerequisite to the construction
thereof, or (iv) interfere in any manner with the proper functioning of or
Landlord's access to any mechanical, electrical, plumbing or HVAC systems,
facilities or equipment located in or serving the Buildings, or (v) diminish the
value of the Premises. In addition, Tenant shall gave the right to make
alterations, additions or improvements to the Premises, without having to obtain
Landlord's consent which: (x) do not fall within the conditions identified in
subparagraphs (i) through (v) above; and (y) cost less than Fifty Cents ($.50)
per rentable square foot of the Premises determined annually (but without
carryover or compounding); provided that Tenant shall give Landlord written
notice of such changes which notice shall include a reasonably detailed
description thereof. Landlord may impose, as a condition to its consent, any
requirements that Landlord in its discretion may deem reasonable or desirable,
including, but not limited to, a requirement that all work be covered by a lien
and completion bond satisfactory to Landlord and requirements as to the manner,
time, and contractor for performance of the work. Tenant shall obtain all
required permits for the work and shall perform the work in compliance with all
applicable laws, regulations and ordinances, all covenants, conditions and
restrictions affecting the Project, and the Rules and Regulations (hereafter
defined). Tenant understands and agrees that Landlord shall be entitled to a
supervision fee in the amount of five percent (5%) of the cost of any work which
requires a government permit. If any governmental entity requires, as a
condition to any proposed alterations, additions or improvements to the Premises
by Tenant, that improvements be made to the Common Areas, and if Landlord
consents to such improvements to the Common Areas,
13
then Tenant shall, at Tenant's sole expense, make such required improvements to
the Common Areas in such manner, utilizing such materials, and with such
contractors (including, if required by Landlord, Landlord's contractors) as
Landlord may require in its sole discretion. Under no circumstances shall Tenant
make any improvement which incorporates any Hazardous Materials, including,
without limitation, asbestos-containing construction materials into the
Premises. Any request for Landlord's consent shall be made in writing and shall
contain architectural plans describing the work in detail reasonably
satisfactory to Landlord. Unless Landlord otherwise agrees in writing, all
alterations, additions or improvements affixed to the Premises (excluding
moveable trade fixtures and furniture) shall become the property of Landlord and
shall be surrendered with the Premises at the end of the Term. Landlord shall
have the right to require Tenant to remove: (a) any of the components of the
initial Tenant Improvements, but only if Landlord notifies Tenant that such
removal will be required at the time of Landlord's approval of the Preliminary
Plan, and (b) any subsequent alterations, additions or improvements whether or
not Landlord's consent was required unless Landlord's written consent was
obtained and at the time of providing its consent, Landlord notified Tenant in
writing that Tenant would not have to remove such items upon the expiration or
earlier termination of the Lease Term. When reviewing any plans for alterations,
additions or improvements submitted for its approval, Landlord shall notify
Tenant in writing whether Landlord shall require Tenant to remove any or all of
such improvements upon expiration or earlier termination of this Lease. Tenant
shall have the right upon expiration or earlier termination of this Lease to
remove any and all phone systems, furniture, fixtures and other personal
property at Tenant's sole cost and expense provided that Tenant shall repair any
damage caused by such removal. Except as otherwise provided in this Lease or in
any Exhibit to this Lease, should Landlord make any alteration or improvement to
the Premises for Tenant, Landlord shall be entitled to prompt reimbursement from
Tenant for all costs incurred.
SECTION 7.4. MECHANIC'S LIENS. Tenant shall keep the Premises free from any
liens arising out of any work performed, materials furnished, or obligations
incurred by or for Tenant. Upon request by Landlord, Tenant shall promptly
cause any such lien to be released by posting a bond in accordance with
California Civil Code Section 3143 or any successor statute. In the event that
Tenant shall not, within thirty (30) days following the imposition of any lien,
cause the lien to be released of record by payment or posting of a proper bond,
Landlord shall have, in addition to all other available remedies, the right to
cause the lien to be released by any means it deems proper, including payment of
or defense against the claim giving rise to the lien. All expenses so incurred
by Landlord, including Landlord's attorneys' fees, and any consequential or
other damages incurred by Landlord arising out of such lien, shall be reimbursed
by Tenant promptly following Landlord's demand, together with interest from the
date of payment by Landlord at the maximum rate permitted by law until paid.
Tenant shall give Landlord no less than ten (10) business days prior notice in
writing before commencing construction of any kind on the Premises so that
Landlord may post and maintain notices of non-responsibility on the Premises.
SECTION 7.5. ENTRY AND INSPECTION. Landlord shall at all reasonable times,
upon written or oral notice (except in emergencies, when no notice shall be
required) have the right to enter the Premises to inspect them, to supply
services in accordance with this Lease, to protect the interests of Landlord in
the Premises, and to submit the Premises to prospective or actual purchasers or
encumbrance holders (or, during the last one hundred and eighty (180) days of
the Term or when an uncured Tenant default exists, to prospective tenants), all
without being deemed to have caused an eviction of Tenant and without abatement
of rent except as provided elsewhere in this Lease. Landlord shall exercise its
rights under this Section reasonably and so as to minimize interference with
Tenant's business operations within the Premises. Landlord shall have the right,
if desired, to retain a key which unlocks all of the doors in the Premises,
excluding Tenant's vaults and safes, and Landlord shall have the right to use
any and all means which Landlord may deem proper to open the doors in an
emergency in order to obtain entry to the Premises, and any entry to the
Premises obtained by Landlord, in accordance with the terms of this Section,
shall not under any circumstances be deemed to be a forcible or unlawful entry
into, or a detainer of, the Premises, or any eviction of Tenant from the
Premises.
ARTICLE VIII. TAXES AND ASSESSMENTS ON TENANT'S PROPERTY
Tenant shall be liable for and shall pay prior to delinquency, all taxes and
assessments levied against all personal property of Tenant located in the
Premises, against all improvements to the Premises made by Landlord or Tenant
which are above Landlord's Project standard in quality and/or quantity for
comparable space within the Project determined by reference to the amount of
Landlord's Contribution to the Tenant Improvements completed pursuant to the
Work Letter ("Above Standard Improvements"), and against any alterations,
additions or like improvements made to the Premises by or on behalf of Tenant.
When possible Tenant shall cause its personal property, any Above Standard
Improvements and alterations to be assessed and billed separately from the real
property of which the Premises form a part. If any taxes on Tenant's personal
property, Above Standard Improvements and/or alterations are levied against
Landlord or Landlord's property and if Landlord pays the same, or if the
assessed value of Landlord's property is increased by the inclusion of a value
placed upon the personal property, Above Standard Improvements and/or
alterations of Tenant and if Landlord pays the taxes based upon the increased
assessment, Tenant shall pay to Landlord the taxes so levied against Landlord or
the proportion of the taxes resulting from the increase in the assessment. In
calculating what portion of any tax xxxx which is assessed against Landlord
separately, or Landlord and Tenant jointly, is attributable to Tenant's Above
Standard Improvements, alterations and personal property, Landlord's reasonable
determination shall be conclusive.
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ARTICLE IX. ASSIGNMENT AND SUBLETTING
SECTION 9.1. RIGHTS OF PARTIES.
(a) Except as specifically authorized by Section 9.4 hereof, Tenant
will not, either voluntarily or by operation of law, assign, sublet, encumber,
or otherwise transfer all or any part of Tenant's interest in this lease, or
permit the Premises to be occupied by anyone other than Tenant, without
Landlord's prior written consent, which consent shall not unreasonably be
withheld in accordance with the provisions of Section 9.1(b). Except as
specifically authorized by Section 9.4 hereof, no assignment (whether voluntary,
involuntary or by operation of law) and no subletting shall be valid or
effective without Landlord's prior written consent and, at Landlord's election,
any such assignment or subletting or attempted assignment or subletting shall
constitute a material default of this Lease. Landlord shall not be deemed to
have given its consent to any assignment or subletting by any other course of
action, including its acceptance of any name for listing in the Building
directory. To the extent not prohibited by provisions of the Bankruptcy Code, 11
U.S.C. Section 101 et seq., (the "Bankruptcy Code"), including Section
-- ---
365(f)(1), Tenant on behalf of itself and its creditors, administrators and
assigns waives the applicability of Section 365(e) of the Bankruptcy Code unless
the proposed assignee of the Trustee for the estate of the bankrupt meets
Landlord's standard for consent as set forth in Section 9.1(b) of this Lease. If
this Lease is assigned to any person or entity pursuant to the provisions of the
Bankruptcy Code, any and all monies or other considerations to be delivered in
connection with the assignment shall be delivered to Landlord, shall be and
remain the exclusive property of Landlord and shall not constitute property of
Tenant or of the estate of Tenant within the meaning of the Bankruptcy Code. Any
person or entity to which this Lease is assigned pursuant to the provisions of
the Bankruptcy Code shall be deemed to have assumed all of the obligations
arising under this Lease on and after the date of the assignment, and shall upon
demand execute and deliver to Landlord an instrument confirming that assumption.
(b) If Tenant desires to transfer an interest in this Lease other
than pursuant to Section 9.4 hereof, it shall first notify Landlord of its
desire and shall submit in writing to Landlord: (i) the name and address of the
proposed transferee; (ii) the nature of any proposed subtenant's or assignee's
business to be carried on in the Premises; (iii) the terms and provisions of any
proposed sublease or assignment, including a copy of the proposed assignment or
sublease form; (iv) a completed Environmental Questionnaire from the proposed
assignee or subtenant; and (v) any other information reasonably requested by
Landlord and reasonably related to the transfer. Except as provided in
Subsection (c) of this Section, Landlord shall not unreasonably withhold its
consent, provided: (1) the use of the Premises will be consistent with the
provisions of this Lease and with Landlord's commitment to other tenants of the
Building and Project; (2) the proposed assignee or subtenant has not been
required by any prior landlord, lender or governmental authority to take
remedial action in connection with Hazardous Materials contaminating a property
arising out of the proposed assignee's or subtenant's actions or use of the
property in question and is not subject to any enforcement order issued by any
governmental authority in connection with the use, disposal or storage of a
Hazardous Material and such proposed transferee is requesting Landlord's consent
to use Hazardous Materials at the Premises; (3) at Landlord's election,
insurance requirements shall be brought into conformity with Landlord's then
current leasing practice as contemplated by Exhibit D; (4) any proposed
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subtenant or assignee demonstrates that it is financially responsible by
submission to Landlord of all reasonable information as Landlord may request
concerning the proposed subtenant or assignee, including, but not limited to, a
balance sheet of the proposed subtenant or assignee as of a date within ninety
(90) days of the request for Landlord's consent, statements of income or profit
and loss of the proposed subtenant or assignee for the two-year period preceding
the request for Landlord's consent, and/or a certification signed by the
proposed subtenant or assignee that it has not been evicted or been in arrears
in rent at any other leased premises for the 3-year period preceding the request
for Landlord's consent; (5) any proposed subtenant or assignee demonstrates to
Landlord's reasonable satisfaction a record of successful experience in
business; (6) the proposed assignee or subtenant is not an existing tenant of
the Buildings or Project or a prospect with whom Landlord is negotiating in
writing to become a tenant at the Buildings or Project; and (7) the proposed
transfer will not impose additional burdens or adverse tax effects on Landlord
unless Tenant assumes the obligation to pay the cost thereof. If Tenant has any
exterior sign rights under this Lease, such rights are personal to Tenant and
may not be assigned or transferred other than a transferee pursuant to Section
9.4 hereof (but the signs of any such transferees shall be subject to Landlord's
review in accordance with Section 5.2 hereof) to any assignee of this Lease or
subtenant of the Premises without Landlord's prior written consent, which may be
withheld in Landlord's sole and absolute discretion.
If Landlord consents to the proposed transfer, Tenant may within
ninety (90) days after the date of the consent effect the transfer upon the
terms described in the information furnished to Landlord; provided that any
material change in the terms shall be subject to Landlord's consent as set forth
in this Section. Landlord shall approve or disapprove any requested transfer
within fifteen (15) business days following receipt of Tenant's written request,
the information set forth above, and the fee set forth below.
(c) Notwithstanding the provisions of Subsection (b) above, in lieu
of consenting to a proposed assignment or subletting, Landlord may elect to
terminate this Lease as to the portion of the Premises proposed to be subleased
or assigned with a proportionate abatement in the rent payable under this Lease,
effective on the date that the proposed sublease or assignment would have become
effective. Landlord may thereafter, at its option, assign or re-let any space so
recaptured to any third party, including, without limitation, the proposed
transferee of Tenant.
(d) Tenant agrees that fifty percent (50%) of any amounts paid by the
assignee or subtenant attributable to this Lease, however described, in excess
of (i) the Basic Rent payable by Tenant hereunder, or in the case of a
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sublease of a portion of the Premises, in excess of the Basic Rent reasonably
allocable to such portion, plus (ii) Tenant's direct out-of-pocket costs which
Tenant certifies to Landlord have been paid to provide occupancy related
services to such assignee or subtenant of a nature commonly provided by
landlords of similar space, shall be the property of Landlord and such amounts
shall be payable directly to Landlord by the assignee or subtenant or, at
Landlord's option, by Tenant. At Landlord's request, a written agreement shall
be entered into by and among Tenant, Landlord and the proposed assignee or
subtenant confirming the requirements of this subsection.
(e) Tenant shall pay to Landlord a fee of Five Hundred Dollars
($500.00) if and when any transfer hereunder is requested by Tenant. Such fee is
hereby acknowledged as a reasonable amount to reimburse Landlord for its costs
of review and evaluation of a proposed assignee/sublessee, and Landlord shall
not be obligated to commence such review and evaluation unless and until such
fee is paid.
SECTION 9.2. EFFECT OF TRANSFER. No subletting or assignment, even with
the consent of Landlord, shall relieve Tenant of its obligation to pay rent and
to perform all its other obligations under this Lease. Moreover, Tenant shall
indemnify and hold Landlord harmless, as provided in Section 10.3, for any act
or omission by an assignee or subtenant. Each assignee, other than Landlord,
shall be deemed to assume all obligations of Tenant under this Lease and shall
be liable jointly and severally with Tenant for the payment of all rent, and for
the due performance of all of Tenant's obligations, under this Lease arising
from and after the date of any such transfer. No transfer shall be binding on
Landlord unless any document memorializing the transfer is delivered to Landlord
and both the assignee/subtenant and Tenant deliver to Landlord an executed
consent to transfer instrument prepared by Landlord and consistent with the
requirements of this Article. The acceptance by Landlord of any payment due
under this Lease from any other person shall not be deemed to be a waiver by
Landlord of any provision of this Lease or to be a consent to any transfer.
Consent by Landlord to one or more transfers shall not operate as a waiver or
estoppel to the future enforcement by Landlord of its rights under this Lease.
SECTION 9.3. SUBLEASE REQUIREMENTS. The following terms and conditions
shall apply to any subletting by Tenant of all or any part of the Premises and
shall be deemed included in each sublease:
(a) Each and every provision contained in this Lease (other than with
respect to the payment of rent hereunder) is incorporated by reference into and
made a part of such sublease, with "Landlord" hereunder meaning the sublandlord
therein and "Tenant" hereunder meaning the subtenant therein.
(b) Tenant hereby irrevocably assigns to Landlord all of Tenant's
interest in all rentals and income arising from any sublease of the Premises,
and Landlord may collect such rent and income and apply same toward Tenant's
obligations under this Lease; provided, however, that until a default occurs in
the performance of Tenant's obligations under this Lease which continues beyond
the applicable cure period, Tenant shall have the right to receive and collect
the sublease rentals. Landlord shall not, by reason of this assignment or the
collection of sublease rentals, be deemed liable to the subtenant for the
performance of any of Tenant's obligations under the sublease. Tenant hereby
irrevocably authorizes and directs any subtenant, upon receipt of a written
notice from Landlord stating that an uncured default exists in the performance
of Tenant's obligations under this Lease, to pay to Landlord all sums then and
thereafter due under the sublease. Tenant agrees that the subtenant may rely on
that notice without any duty of further inquiry and notwithstanding any notice
or claim by Tenant to the contrary. Tenant shall have no right or claim against
the subtenant or Landlord for any rentals so paid to Landlord.
(c) In the event of the termination of this Lease, Landlord may, at
its sole option, take over Tenant's entire interest in any sublease and, upon
notice from Landlord, the subtenant shall attorn to Landlord. In no event,
however, shall Landlord be liable for any previous act or omission by Tenant
under the sublease or for the return of any advance rental payments or deposits
under the sublease that have not been actually delivered to Landlord, nor shall
Landlord be bound by any sublease modification executed without Landlord's
consent or for any advance rental payment by the subtenant in excess of one
month's rent. The general provisions of this Lease, including, without
limitation, those pertaining to insurance and indemnification, shall be deemed
incorporated by reference into the sublease despite the termination of this
Lease.
SECTION 9.4. CERTAIN TRANSFERS. The sale of all or substantially all of
Tenant's assets (other than bulk sales in the ordinary course of business) or,
if Tenant is a privately held corporation, an unincorporated association, or a
partnership, the transfer, assignment or hypothecation of any stock or interest
in such corporation, association, or partnership in the aggregate of fifty
percent (50%) shall be deemed an assignment within the meaning and provisions of
this Article. Notwithstanding anything to the contrary contained in this Lease,
Tenant shall have the right, without obtaining Landlord's consent, (a) to assign
this Lease or sublet all or any part of the Premises to a parent, subsidiary or
affiliate of Tenant; (b) to assign this Lease or sublet all or any part of the
Premises to any entity which controls, is controlled by or under common control
with Tenant; (c) to assign this Lease or sublet all or any part of the Premises
to an entity into which Tenant is merged or by which it has been acquired; or
(d) to assign or sublet all or a portion of this Lease to an entity which
acquires all or substantially all of Tenant's business (all of the foregoing,
for purposes of this Lease, being defined as a "Affiliate") so long as (i) the
net worth of the successor entity after such merger, assignment or transfer is
equal to or greater than the net worth of Tenant immediately prior to the date
of such merger, assignment or transfer; (ii) Tenant shall provide to Landlord,
prior to (or as soon as legally permissible if disclosure of any such
transaction is restricted by securities or other law) such merger, assignment or
transfer, written notice thereof and such assignment documentation and other
information as Landlord may reasonably request in connection therewith, and
(iii) all of the terms and requirements of Section 9.2 and 9.3 (with respect to
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subleases) shall apply to such sublease, assignment, merger or transfer. For
purposes of this Section, the term "control" shall mean an equity or ownership
interest of fifty percent (50%) or more or the ability whether by ownership of
shares or other equity interest, by agreement or otherwise, to elect a majority
of the directors in the case of a corporation, or if not a corporation, to make
management decisions on behalf of the entity.
ARTICLE X. INSURANCE AND INDEMNITY
SECTION 10.1. TENANT'S INSURANCE. Tenant, at its sole cost and expense,
shall provide and maintain in effect the insurance described in Exhibit D.
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Evidence of that insurance must be delivered to Landlord prior to the
Commencement Date.
SECTION 10.2. LANDLORD'S INSURANCE. Landlord may, at its election, provide
any or all of the following types of insurance, with or without deductible and
in amounts and coverages as may be determined by Landlord in its discretion:
"all risk" property insurance, subject to standard exclusions, covering the
Buildings or Project, and such other risks as Landlord or its mortgagees may
from time to time deem appropriate, including Tenant Improvements made by
Landlord, and commercial general liability coverage. Landlord shall not be
required to carry insurance of any kind on Tenant's property, including
leasehold improvements, trade fixtures, furnishings, equipment, plate glass,
signs and all other items of personal property, and shall not be obligated to
repair or replace that property should damage occur. Tenant shall not be
required to carry insurance of any kind on Landlord's property subject to its
obligation to pay as an Operating Expense, Tenant's Share of insurance carried
by Landlord as provided in this Lease. All proceeds of insurance maintained by
Landlord upon the Buildings and Project shall be the property of Landlord,
whether or not Landlord is obligated to or elects to make any repairs. At
Landlord's option, Landlord may self-insure all or any portion of the risks for
which Landlord elects to provide insurance hereunder.
SECTION 10.3. JOINT INDEMNITY.
(a) To the fullest extent permitted by law and subject to the
provisions of Section 10.5, Tenant shall defend, indemnify, protect, save and
hold harmless Landlord, its agents, and any and all affiliates of Landlord,
including, without limitation, any corporations or other entities controlling,
controlled by or under common control with Landlord, from and against any and
all claims, liabilities, costs or expenses arising either before or after the
Commencement Date from Tenant's use or occupancy of the Premises, or from the
conduct of its business, or from any activity, work, or thing done, permitted or
suffered by Tenant or its agents, employees, invitees or licensees in or about
the Premises, or from any negligence or willful misconduct of Tenant or its
agents, employees, visitors, patrons, guests, invitees or licensees. In cases of
alleged negligence asserted by third parties against Landlord which arise out
of, are occasioned by, or in any way attributable to Tenant's, its agents,
employees, contractors, licensees or invitees use and occupancy of the Premises,
or from the conduct of its business or from any activity, work or thing done,
permitted or suffered by Tenant or its agents, employees, invitees or licensees
on Tenant's part to be performed under this Lease, or from any negligence or
willful misconduct of Tenant, its agents, employees, licensees or invitees,
Tenant shall accept any tender of defense for Landlord and shall,
notwithstanding any allegation of negligence or willful misconduct on the part
of the Landlord, defend Landlord and protect and hold Landlord harmless and pay
all costs, expenses and attorneys' fees incurred in connection with such
litigation, provided that Tenant shall not be liable for any such injury or
damage, and Landlord shall reimburse Tenant for the reasonable attorney's fees
and costs for the attorney representing both parties, all to the extent and in
the proportion that such injury or damage is ultimately determined by a court of
competent jurisdiction (or in connection with any negotiated settlement agreed
to by Landlord) to be attributable to the negligence or willful misconduct of
Landlord. If the attorney retained by Tenant or its insurer to defend Landlord
and Tenant reasonably determines he or she is legally or ethically precluded
from representing both Landlord and Tenant, Tenant shall at Tenant's sole cost
and expense, retain a separate attorney reasonably selected by Landlord to
represent Landlord in any such suit; provided, however, that to the extent and
in the proportion that the injury or damage which is the subject of the suit is
ultimately determined by a court of competent jurisdiction (or in connection
with any negotiated settlement agreed to by Landlord) to be attributable to the
negligence or willful misconduct of Landlord or a default by Landlord of its
obligations under this Lease, Landlord shall reimburse Tenant for the reasonable
legal fees and costs of the separate attorney retained by Tenant. The provisions
of this Subsection 10.3(a) shall expressly survive the expiration or sooner
termination of this Lease.
(b) To the fullest extent permitted by law, but subject to the
express limitations on liability contained in this Lease (including, without
limitation, the provisions of Sections 10.4 and 10.5 of this Lease), Landlord
shall defend, indemnify, protect, save and hold harmless Tenant, its agents and
any and all affiliates of Tenant, including, without limitation, any
corporations, or other entities controlling, controlled by or under common
control with Tenant, from and against any and all claims, liabilities, costs or
expenses arising either before or after the Commencement Date from any
negligence or willful misconduct in the operation, maintenance or repair of the
Common Areas, the Project and/or the Building by Landlord or its employees or
authorized agents or a default by Landlord of its obligations under this Lease.
In cases of alleged negligence asserted by third parties against Tenant which
arise out of, are occasioned by, or in any way attributable to the maintenance
or repair of the Common Areas, the Project or the Building by Landlord or its
authorized agents or employees, Landlord shall accept any tender of defense for
Tenant and shall, notwithstanding any allegation of negligence or willful
misconduct on the part of Tenant, defend Tenant and protect and hold Tenant
harmless and pay all cost, expense and attorneys' fees incurred in connection
with such litigation, provided that Landlord shall not be liable for any such
injury or damage, and Tenant shall reimburse Landlord for the
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reasonable attorney's fees and costs for the attorney representing both parties,
all to the extent and in the proportion that such injury or damage is ultimately
determined by a court of competent jurisdiction (or in connection with any
negotiated settlement agreed to by Tenant) to be attributable to the negligence
or willful misconduct of Tenant. If the attorney retained by Landlord or its
insurer to defend Landlord and Tenant reasonably determines he or she is legally
or ethically precluded from representing both Landlord and Tenant Landlord shall
at Landlord's sole cost and expense, retain a separate attorney reasonably
selected by Tenant to represent Tenant in any such suit; provided, however, that
to the extent and the proportion that the injury or damage which is the subject
of the suit is ultimately determined by a court of competent jurisdiction (or in
connection with any negotiated settlement agreed to by Tenant) to be
attributable to the negligence or willful misconduct or Tenant, Tenant shall
reimburse Landlord for the reasonable legal fees and costs of the separate
attorney retained by Landlord. The provisions of this Subsection 10.3(b) shall
expressly survive the expiration or sooner termination of this Lease.
SECTION 10.4. LANDLORD'S NON-LIABILITY. Subject to the express indemnity
obligations of Section 10.3 (b) of this Lease, Landlord shall not be liable to
Tenant, its employees, agents and invitees, and Tenant hereby waives all claims
against Landlord for loss of or damage to any property, or any injury to any
person, or any other loss, cost, damage, injury or liability whatsoever
resulting from fire, explosion, falling plaster, steam, gas, electricity, water
or rain which may leak or flow from or into any part of the Building or from the
breakage, leakage, obstruction or other defects of the pipes, sprinklers, wires,
appliances, plumbing, air conditioning, electrical works or other fixtures in
the Building, whether the damage or injury results from conditions arising in
the Premises or in other portions of the Project. Notwithstanding any provision
of this Lease to the contrary, and regardless of the negligence or willful
misconduct of Landlord or its employees, or authorized agents or a default by
Landlord of its obligations under this Lease, Landlord shall in no event be
liable to Tenant, its employees, agents or invitees and Tenant hereby waives all
claims against Landlord, for loss or interruption of Tenant's business or income
(including, without limitation, any consequential damages and lost profit or
opportunity costs), or for any loss, cost, damage, injury or liability resulting
from Acts of God (except with respect to restoration obligations pursuant to
Article XI below), acts of civil disobedience or insurrection, acts or omissions
(criminal or otherwise) of any third parties, including, without limitation, any
other tenants within the Project or their agents, employees, contractors, guests
or invitees. It is understood that any such condition may require the temporary
evacuation or closure of all or a portion of the Building. Except as provided in
this Lease, there shall be no abatement of rent and no liability of Landlord by
reason of any injury to or interference with Tenant's business (including,
without limitation, consequential damages and lost profit or opportunity costs)
arising from the making of any repairs, alterations or improvements to any
portion of the Building, including repairs to the Premises, nor shall any
related activity by Landlord constitute an actual or constructive eviction;
provided, however, that in making repairs, alterations or improvements, Landlord
shall interfere as little as reasonably practicable with the conduct of Tenant's
business in the Premises. Neither Landlord nor its agents shall be liable for
interference with light or other similar intangible interests. Tenant shall
immediately notify Landlord in case of fire or accident in the Premises, the
Building or the Project and of defects in any improvements or equipment.
SECTION 10.5. WAIVER OF SUBROGATION. Landlord and Tenant each hereby
waives all rights of recovery against the other and the other's agents on
account of loss and damage occasioned to the property of such waiving party to
the extent only that such loss or damage is insurable against under an "all
risk" property insurance policy; provided however, that the foregoing waiver
shall not apply to the extent of Tenant's obligation to pay Tenant's Share of
deductibles under policies maintained by Landlord as contemplated by this Lease.
By this waiver it is the intent of the parties that except as set forth in the
immediately preceding sentence, neither Landlord nor Tenant shall be liable to
the other party or any insurance company (by way of subrogation or otherwise)
insuring the other party for any loss or damage insurable under an "all-risk"
property insurance policy, even though such loss or damage might be occasioned
by the negligence of such party, its agents, employees, contractors, guests or
invitees.
ARTICLE XI. DAMAGE OR DESTRUCTION
SECTION 11.1. RESTORATION.
(a) If either of the Buildings of which the Premises are a part is
damaged, Landlord shall repair that damage as soon as reasonably possible, at
its expense, unless: (i) Landlord reasonably determines that the cost of repair
is not covered by Landlord's fire and extended coverage insurance plus such
additional amounts Tenant elects, at its option, to contribute, excluding
however the deductible (for which Tenant shall be responsible for Tenant's
Share); (ii) Landlord reasonably determines that the Premises cannot, with
reasonable diligence, be fully repaired by Landlord (or cannot be safely
repaired because of the presence of hazardous factors, including, without
limitation, Hazardous Materials, earthquake faults, and other similar dangers)
within two hundred seventy (270) days after the date of the damage; (iii) an
event of default by Tenant has occurred and is continuing at the time of such
damage; or (iv) the damage occurs during the final twelve (12) months of the
Term unless Tenant then has the right to extend the Term of this Lease and does
so in accordance with the provisions of Section 3.3 hereof. Should Landlord
elect not to repair the damage for one of the preceding reasons, Landlord shall
so notify Tenant in writing within forty-five (45) days after the damage occurs
and this Lease shall terminate as of the date of that notice as to the Building
which was damaged; provided, however that if the remaining Premises after such
termination is less than an entire Building, Tenant shall have the right to
cause the Lease to be terminated as to the remainder of the Premises by giving
Landlord written notice within thirty (30) days after receipt of Landlord's
notice.
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(b) Unless Landlord elects to terminate this Lease in accordance with
subsection (a) above, this Lease shall continue in effect for the remainder of
the Term; provided that so long as Tenant is not in default under this Lease
after expiration of the applicable cure period, (i) if the damage is so
extensive that Landlord reasonably determines that the Premises cannot, with
reasonable diligence, be repaired by Landlord (or cannot be safely repaired
because of the presence of hazardous factors, earthquake faults, and other
similar dangers) so as to allow Tenant's substantial use and enjoyment of the
Premises within two hundred seventy (270) days after the date of damage, or (ii)
the damage occurs during the final twelve (12) months of the Lease Term, then
Tenant may elect to terminate this Lease by written notice to Landlord within
the thirty days after receipt of Landlord's notice pursuant to subsection (a) as
to the Building which was damaged. In the event Tenant elects not to terminate
the Lease and the repairs are commenced but not completed within two hundred
seventy (270) days after the date of the damage, (the "Restoration Window"),
Tenant may by written notice to Landlord, terminate this Lease within fifteen
(15) days after the end of the Restoration Window. Notwithstanding the
foregoing, if at any time during the repair period, Landlord reasonably believes
that the restoration will not be completed prior to the end of the Restoration
Window, Landlord shall notify Tenant in writing of such fact and of a new
outside date on or before which the Premises shall be restored, and Tenant must
elect within ten (10) business days of receipt of such notice to either
terminate this Lease or waive its right to terminate this Lease provided the
Premises is restored on or prior to the new outside date established by Landlord
in such notice to Tenant. Tenant's failure to elect to terminate this Lease
within such ten (10) business day period shall be deemed Tenant's waiver of its
right to terminate this Lease as provided in this paragraph as to the previous
outside date, but not as to the new outside date established by said notice.
(c) Commencing on the date of any damage to the Buildings, and ending
on the sooner of the date the damage is repaired and the Premises is tendered to
Tenant in the same condition as required on the Commencement Date or the date
this Lease is terminated, the rental to be paid under this Lease shall be abated
in the same proportion that the floor area of the Premises that is rendered
unusable by the damage from time to time bears to the total floor area of the
Premises, but only to the extent that the business interruption insurance
required to be carried by Tenant as described in Exhibit D was then in force.
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(d) In addition, the provisions of this Section shall not be deemed
to require Landlord to repair any improvements or fixtures that Tenant is
obligated to repair or insure pursuant to any other provision of this Lease.
(e) Tenant shall cooperate with Landlord in removing Tenant's
personal property and any debris from the Premises to facilitate all inspections
of the Premises and the making of any repairs. Notwithstanding anything to the
contrary contained in this Lease, if Landlord in good faith believes there is a
risk of injury to persons or damage to property from entry into the Buildings or
Premises following any damage or destruction thereto, Landlord may restrict
entry into the Buildings or the Premises by Tenant, its employees, agents and
contractors in a non-discriminatory manner, without being deemed to have
violated Tenant's rights of quiet enjoyment to, or made an unlawful detainer of,
or evicted Tenant from, the Premises, but subject to the applicability of the
rental abatement provisions. Upon request, Landlord shall consult with Tenant to
determine if there are safe methods of entry into the Buildings or the Premises
solely in order to allow Tenant to retrieve files, data in computers, and
necessary inventory, subject however to all indemnities and waivers of liability
from Tenant to Landlord contained in this Lease and any additional indemnities
and waivers of liability which Landlord may require.
SECTION 11.2. LEASE GOVERNS. Tenant agrees that the provisions of this
Lease, including, without limitation, Section 11.1, shall govern any damage or
destruction and shall accordingly supersede any contrary statute or rule of law.
ARTICLE XII. EMINENT DOMAIN
SECTION 12.1. TOTAL OR PARTIAL TAKING. If all or a material portion of the
Premises or access required for the use of the Premises is taken by any lawful
authority by exercise of the right of eminent domain, or sold to prevent a
taking, either Tenant or Landlord may terminate this Lease effective as of the
date possession is required to be surrendered to the authority. In the event
title to a portion of the Buildings or Project, other than the Premises, is
taken or sold in lieu of taking, and if such taking will materially and
adversely affect Tenant's use of the Premises, either party may terminate this
Lease, by written notice to the other party, effective on the date of vesting of
title. In the event neither party has elected to terminate this Lease as
provided above, then Landlord shall promptly, after receipt of a sufficient
condemnation award, proceed to restore the Premises to substantially their
condition prior to the taking, and a proportionate allowance shall be made to
Tenant for the rent corresponding to the time during which, and to the part of
the Premises of which, Tenant is deprived on account of the taking and
restoration. In the event of a taking, Landlord shall be entitled to the entire
amount of the condemnation award without deduction for any estate or interest of
Tenant; provided that nothing in this Section shall be deemed to give Landlord
any interest in, or prevent Tenant from seeking any award against the taking
authority for, the taking of personal property and fixtures belonging to Tenant
or for relocation or business interruption expenses recoverable from the taking
authority.
SECTION 12.2. TEMPORARY TAKING. No temporary taking of the Premises shall
terminate this Lease or give Tenant any right to abatement of rent, and any
award specifically attributable to a temporary taking of the
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Premises shall belong entirely to Tenant. A temporary taking shall be deemed to
be a taking of the use or occupancy of the Premises for a period of not to
exceed ninety (90) days.
SECTION 12.3. TAKING OF PARKING AREA. In the event there shall be a taking
of the parking area such that Landlord can no longer provide reasonable and
sufficient parking to comply with this Lease, Landlord, after reasonable prior
notice to Tenant, may substitute reasonably equivalent parking in a location
reasonably close to the Buildings; provided that if Landlord fails to make that
substitution prior to or substantially concurrently with the taking and if the
taking materially impairs Tenant's use and enjoyment of the Premises, Tenant
may, at its option, terminate this Lease by written notice to Landlord. If this
Lease is not so terminated by Tenant, there shall be no abatement of rent and
this Lease shall continue in effect.
ARTICLE XIII. SUBORDINATION; ESTOPPEL CERTIFICATE; FINANCIALS
SECTION 13.1. SUBORDINATION. At the option of Landlord, this Lease shall
be either superior or subordinate to all ground or underlying leases, mortgages
and deeds of trust, if any, which may hereafter affect the Buildings, and to all
renewals, modifications, consolidations, replacements and extensions thereof;
provided, that so long as Tenant is not in default under this Lease beyond any
applicable cure period, this Lease shall not be terminated or Tenant's quiet
enjoyment of the Premises disturbed in the event of termination of any such
ground or underlying lease, or the foreclosure of any such mortgage or deed of
trust, to which Tenant has subordinated this Lease pursuant to this Section. In
the event of a termination or foreclosure, Tenant shall become a tenant of and
attorn to the successor-in-interest to Landlord upon the same terms and
conditions as are contained in this Lease, and shall execute any reasonable
instrument reasonably required by Landlord's successor for that purpose. Tenant
shall also, within fifteen (15) days after request of Landlord, execute and
deliver all reasonable instruments as may be required from time to time to
subordinate the rights of Tenant under this Lease to any ground or underlying
lease or to the lien of any mortgage or deed of trust (provided that such
instruments include commercially reasonable non-disturbance and attornment
provisions set forth above), or, if requested by Landlord, to subordinate, in
whole or in part, any ground or underlying lease or the lien of any mortgage or
deed of trust to this Lease.
SECTION 13.2. ESTOPPEL CERTIFICATE.
(a) Tenant shall, at any time upon not less than fifteen (15)
business days prior written notice from Landlord, execute, acknowledge and
deliver to Landlord, in any form that Landlord may reasonably require, a
statement in writing (i) certifying that this Lease is unmodified and in full
force and effect (or, if modified, stating the nature of the modification and
certifying that this Lease, as modified, is in full force and effect) and the
dates to which the rental, additional rent and other charges have been paid in
advance, if any, and (ii) acknowledging that, to Tenant's knowledge, there are
no uncured defaults on the part of Landlord, or specifying each default if any
are claimed, and (iii) setting forth all further information that Landlord may
reasonably require. Tenant's statement may be relied upon by any prospective
purchaser or encumbrancer of all or any portion of the Buildings or Project.
(b) Notwithstanding any other rights and remedies of Landlord,
Tenant's failure to deliver any estoppel statement within the provided time
shall be conclusive upon Tenant that (i) this Lease is in full force and effect,
without modification except as may be represented by Landlord, (ii) there are no
uncured defaults in Landlord's performance, and (iii) not more than one month's
rental has been paid in advance.
(c) Landlord shall, at any time upon not less than fifteen (15)
business days' prior written notice from Tenant, execute, acknowledge and
deliver to Tenant, in any form that Tenant may reasonably require, a statement
in writing (i) certifying that this Lease is unmodified and in full force and
effect (or, if modified, stating the nature of the modification and certifying
that this Lease, as modified, is in full force and effect) and the dates to
which the rental, additional rent and other charges have been paid in advance,
if any, and (ii) acknowledging that, to Landlord's knowledge, there are no
uncured defaults on the part of Tenant, or specifying each default if any are
claimed, and (iii) setting forth all further information that Tenant may
reasonably require. Landlord's statement may be relied upon by any prospective
subtenant or assignee.
SECTION 13.3. FINANCIALS.
(a) Tenant shall deliver to Landlord, prior to the execution of this
Lease and thereafter at any time upon Landlord's request, but not more often
than once during any calendar year, a copy of Tenant's current audited financial
statements, included in its most recent filing with the Securities and Exchange
Commission (the "Statements").
(b) Tenant acknowledges that Landlord is relying on the Statements
previously delivered in its determination to enter into this Lease, and Tenant
represents to Landlord, which representation shall be deemed made on the date of
this Lease, that no material adverse change in the financial condition of
Tenant, as reflected in the Statements, has occurred since the date Tenant
delivered the Statements to Landlord. The Statements are represented and
warranted by Tenant to be correct and to accurately and fully reflect Tenant's
true financial condition as of the date of submission of such Statements to
Landlord.
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ARTICLE XIV. DEFAULTS AND REMEDIES
SECTION 14.1. TENANT'S DEFAULTS. In addition to any other event of default
set forth in this Lease, the occurrence of any one or more of the following
events shall constitute a default by Tenant:
(a) The failure by Tenant to make any payment of rent or additional
rent required to be made by Tenant, as and when due, where the failure continues
for a period of five (5) days after written notice from Landlord to Tenant;
provided, however, that any such notice shall be in lieu of, and not in addition
to, any notice required under California Code of Civil Procedure Section 1161
and 1161(a) as amended. For purposes of these default and remedies provisions,
the term "additional rent" shall be deemed to include all amounts of any type
whatsoever other than Basic Rent to be paid by Tenant pursuant to the terms of
this Lease.
(b) Except as specifically set forth in Article IX, assignment,
sublease, encumbrance or other transfer of the Lease by Tenant, either
voluntarily or by operation of law, whether by judgment, execution, transfer by
intestacy or testacy, or other means, without the prior written consent of
Landlord.
(c) The discovery by Landlord that any Statement provided by Tenant,
or by any affiliate, successor or guarantor of Tenant, was materially and
adversely false.
(d) The failure of Tenant to timely and fully provide any
subordination agreement, estoppel certificate or financial statements in
accordance with the requirements of Article XIII within five (5) business days
after written notice from Landlord.
(e) The failure or inability 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 any other subsection of this
Section, where the failure continues for a period of thirty (30) days after
written notice from Landlord to Tenant or such shorter period as is specified in
any other provision of this Lease; provided, however, that any such notice shall
be in lieu of, and not in addition to, any notice required under California Code
of Civil Procedure Section 1161 and 1161(a) as amended. However, if the nature
of the failure is such that more than thirty (30) days are reasonably required
for its cure, then Tenant shall not be deemed to be in default if Tenant
commences the cure within thirty (30) days, and thereafter diligently pursues
the cure to completion.
(f) (i) The making by Tenant of any general assignment for the
benefit of creditors; (ii) the filing by or against Tenant of a petition to have
Tenant adjudged a Chapter 7 debtor under the Bankruptcy Code or to have debts
discharged 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 thirty (30) days); (iii) 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, if possession is
not restored to Tenant within thirty (30) days; (iv) 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 the seizure is not
discharged within thirty (30) days; or (v) Tenant's convening of a meeting of
its creditors for the purpose of effecting a moratorium upon or composition of
its debts. Landlord shall not be deemed to have knowledge of any event described
in this subsection unless notification in writing is received by Landlord, nor
shall there be any presumption attributable to Landlord of Tenant's insolvency.
In the event that any provision of this subsection is contrary to applicable
law, the provision shall be of no force or effect.
SECTION 14.2. LANDLORD'S REMEDIES.
(a) In the event of any default by Tenant, or in the event of the
abandonment of the Premises by Tenant, then in addition to any other remedies
available to Landlord, Landlord may exercise the following remedies:
(i) Landlord may terminate Tenant's right to possession of the
Premises by any lawful means, in which case this Lease shall terminate and
Tenant shall immediately surrender possession of the Premises to Landlord. Such
termination shall not affect any accrued obligations of Tenant under this Lease.
Upon termination and subject to applicable law, Landlord shall have the right to
reenter the Premises and remove all persons and property. Landlord shall also be
entitled to recover from Tenant:
(1) The worth at the time of award of the unpaid rent and
additional rent which had been earned at the time of termination;
(2) The worth at the time of award of the amount by which
the unpaid rent and additional rent which would have been earned after
termination until the time of award exceeds the amount of such loss that Tenant
proves could have been reasonably avoided;
(3) The worth at the time of award of the amount by which
the unpaid rent and additional rent for the balance of the Term after the time
of award exceeds the amount of such loss that Tenant proves could be reasonably
avoided;
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(4) Any other amount necessary to compensate Landlord for
all the detriment proximately caused by Tenant's failure to perform its
obligations under this Lease or which in the ordinary course of things would be
likely to result from Tenant's default, including, but not limited to, the cost
of recovering possession of the Premises, refurbishment of the Premises,
marketing costs, commissions and other expenses of reletting, including
necessary repair, the unamortized portion of any tenant improvements and
brokerage commissions funded by Landlord in connection with this Lease,
reasonable attorneys' fees, and any other reasonable costs; and
(5) At Landlord's election, all other amounts in addition
to or in lieu of the foregoing as may be permitted by law. The term "rent" as
used in this Lease shall be deemed to mean the Basic Rent and all other sums
required to be paid by Tenant to Landlord pursuant to the terms of this Lease.
Any sum, other than Basic Rent, shall be computed on the basis of the average
monthly amount accruing during the twenty-four (24) month period immediately
prior to default, except that if it becomes necessary to compute such rental
before the twenty-four (24) month period has occurred, then the computation
shall be on the basis of the average monthly amount during the shorter period.
As used in subparagraphs (1) and (2) above, the "worth at the time of award"
shall be computed by allowing interest at the rate of ten percent (10%) per
annum. As used in subparagraph (3) above, the "worth at the time of award" shall
be computed by discounting the amount at the discount rate of the Federal
Reserve Bank of San Francisco at the time of award plus one percent (1%).
(ii) Landlord may elect not to terminate Tenant's right to
possession of the Premises, in which event Landlord may continue to enforce all
of its rights and remedies under this Lease, including the right to collect all
rent as it becomes due. Efforts by the Landlord to maintain, preserve or relet
the Premises, or the appointment of a receiver to protect the Landlord's
interests under this Lease, shall not constitute a termination of the Tenant's
right to possession of the Premises. In the event that Landlord elects to avail
itself of the remedy provided by this subsection (ii), Landlord shall not
unreasonably withhold its consent to an assignment or subletting of the Premises
subject to the reasonable standards for Landlord's consent as are contained in
this Lease.
(b) Except as required by applicable law, Landlord shall be under no
obligation to observe or perform any covenant of this Lease on its part to be
observed or performed which accrues after the date of any default by Tenant
unless and until the default is cured by Tenant, it being understood and agreed
that the performance by Landlord of its obligations under this Lease are
expressly conditioned upon Tenant's full and timely performance of its
obligations under this Lease. The various rights and remedies reserved to
Landlord in this Lease or otherwise shall be cumulative and, except as otherwise
provided by California law, Landlord may pursue any or all of its rights and
remedies at the same time.
(c) No delay or omission of Landlord to exercise any right or remedy
shall be construed as a waiver of the right or remedy or of any default by
Tenant. The acceptance by Landlord of rent shall not be a (i) waiver of any
preceding breach or default by Tenant of any provision of this Lease, other than
the failure of Tenant to pay the particular rent accepted, regardless of
Landlord's knowledge of the preceding breach or default at the time of
acceptance of rent, or (ii) a waiver of Landlord's right to exercise any remedy
available to Landlord by virtue of the breach or default. The acceptance of any
payment from a debtor in possession, a trustee, a receiver or any other person
acting on behalf of Tenant or Tenant's estate shall not waive or cure a default
under Section 14.1. No payment by Tenant or receipt by Landlord of a lesser
amount than the rent required by this Lease shall be deemed to be other than a
partial payment on account of the earliest due stipulated rent, nor shall any
endorsement or statement on any check or letter be deemed an accord and
satisfaction and Landlord shall accept the check or payment without prejudice to
Landlord's right to recover the balance of the rent or pursue any other remedy
available to it. No act or thing done by Landlord or Landlord's agents during
the Term shall be deemed an acceptance of a surrender of the Premises, and no
agreement to accept a surrender shall be valid unless in writing and signed by
Landlord. No employee of Landlord or of Landlord's agents shall have any power
to accept the keys to the Premises prior to the termination of this Lease, and
the delivery of the keys to any employee shall not operate as a termination of
the Lease or a surrender of the Premises.
SECTION 14.3. LATE PAYMENTS.
(a) Any rent due under this Lease that is not received by Landlord
within five (5) days of the date when due shall bear interest at the maximum
rate permitted by law from the date due until fully paid. The payment of
interest shall not cure any default by Tenant under this Lease. In addition,
Tenant acknowledges that the late payment by Tenant to Landlord of rent will
cause Landlord to incur costs not contemplated by this Lease, the exact amount
of which will be extremely difficult and impracticable to ascertain. Those costs
may include, but are not limited to, administrative, processing and accounting
charges, and late charges which may be imposed on Landlord by the terms of any
ground lease, mortgage or trust deed covering the Premises. Accordingly, if any
rent due from Tenant shall not be received by Landlord or Landlord's designee
within ten (10) days after the date due, then Tenant shall pay to Landlord, in
addition to the interest provided above, a late charge in a sum equal to the
greater of five percent (5%) of the amount overdue for each delinquent payment;
provided, however, that such late charge shall be waived by Landlord for the
first three (3) late payments only during the Term of this Lease of Base Rent
and/or Operating Expenses. Acceptance of a late charge by Landlord shall not
constitute a waiver of Tenant's default with respect to the overdue amount, nor
shall it prevent Landlord from exercising any of its other rights and remedies.
(b) Following each second consecutive installment of rent that is not
paid within five (5) business days following notice of nonpayment from Landlord,
Landlord shall have the option (i) to require that beginning with the
22
first payment of rent next due, rent shall no longer be paid in monthly
installments but shall be payable quarterly three (3) months in advance and/or
(ii) to require that Tenant increase the amount, if any, of the Security Deposit
by one hundred percent (100%). Should Tenant deliver to Landlord, at any time
during the Term, two (2) or more insufficient checks, the Landlord may require
that all monies then and thereafter due from Tenant be paid to Landlord by
cashier's check.
SECTION 14.4. RIGHT OF LANDLORD TO PERFORM. All covenants and agreements
to be performed by Tenant under this Lease shall be performed at Tenant's sole
cost and expense and without any abatement of rent or right of set-off. If
Tenant fails to pay any sum of money, other than rent, or fails to perform any
other act on its part to be performed under this Lease, and the failure
continues beyond any applicable grace period set forth in Section 14.1, then in
addition to any other available remedies, Landlord may, at its election make the
payment or perform the other act on Tenant's part. Landlord's election to make
the payment or perform the act on Tenant's part shall not give rise to any
responsibility of Landlord to continue making the same or similar payments or
performing the same or similar acts. Tenant shall, promptly upon demand by
Landlord, reimburse Landlord for all sums paid by Landlord and all necessary
incidental costs, together with interest at the maximum rate permitted by law
from the date of the payment by Landlord. Landlord shall have the same rights
and remedies if Tenant fails to pay those amounts as Landlord would have in the
event of a default by Tenant in the payment of rent.
SECTION 14.5. DEFAULT BY LANDLORD. Landlord shall not be deemed to be in
default in the performance of any obligation under this Lease unless and until
it has failed to perform the obligation within a reasonable time not to exceed
thirty (30) days after written notice by Tenant to Landlord specifying in
reasonable detail the nature and extent of the failure; provided, however, that
if the nature of Landlord's obligation is such that more than thirty (30) days
are required for its performance, then Landlord shall not be deemed to be in
default if it commences performance within the thirty (30) day period and
thereafter diligently pursues the cure to completion.
SECTION 14.6. EXPENSES AND LEGAL FEES. All sums reasonably incurred by
Landlord in connection with any event of default by Tenant under this Lease or
holding over of possession by Tenant after the expiration or earlier termination
of this Lease, including, without limitation, all costs, expenses and actual
accountants, appraisers, attorneys and other professional fees, and any
collection agency or other collection charges, shall be due and payable by
Tenant to Landlord on demand, and shall bear interest at the rate of ten percent
(10%) per annum. Should either Landlord or Tenant bring any action in connection
with this Lease, the prevailing party shall be entitled to recover as a part of
the action its reasonable attorneys' fees, and all other costs. The prevailing
party for the purpose of this paragraph shall be determined by the trier of the
facts.
SECTION 14.7. WAIVER OF JURY TRIAL. LANDLORD AND TENANT EACH ACKNOWLEDGES
THAT IT IS AWARE OF AND HAS HAD THE ADVICE OF COUNSEL OF ITS CHOICE WITH RESPECT
TO ITS RIGHTS TO TRIAL BY JURY, AND EACH PARTY DOES HEREBY EXPRESSLY AND
KNOWINGLY WAIVE AND RELEASE ALL SUCH RIGHTS TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY HERETO AGAINST THE OTHER
(AND/OR AGAINST ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SUBSIDIARY OR
AFFILIATED ENTITIES) ON ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS LEASE, TENANT'S USE OR OCCUPANCY OF THE PREMISES, AND/OR ANY
CLAIM OF INJURY OR DAMAGE.
SECTION 14.8. SATISFACTION OF JUDGMENT. The obligations of Landlord do not
constitute the personal obligations of the individual partners, trustees,
directors, officers or shareholders of Landlord or its constituent partners.
Should Tenant recover a money judgment against Landlord, such judgment shall be
satisfied only out of the proceeds of sale received upon execution of such
judgment and levied thereon against the right, title and interest of Landlord in
the Project and out of the rent or other income from such property receivable by
Landlord or out of consideration received by Landlord from the sale or other
disposition of all or any part of Landlord's right, title or interest in the
Project and no action for any deficiency may be sought or obtained by Tenant.
ARTICLE XV. END OF TERM
SECTION 15.1. HOLDING OVER. This Lease shall terminate without further
notice upon the expiration of the Term, and any holding over by Tenant after the
expiration shall not constitute a renewal or extension of this Lease, or give
Tenant any rights under this Lease, except when in writing signed by both
parties. If Tenant holds over for any period after the expiration (or earlier
termination) of the Term without the prior written consent of Landlord, such
possession shall constitute a tenancy at sufferance only; such holding over with
the prior written consent of Landlord shall constitute a month-to-month tenancy
commencing on the first (1st) day following the termination of this Lease. In
either of such events, possession shall be subject to all of the terms of this
Lease, except that the monthly Basic Rent for the initial two (2) months of
holdover shall be one hundred fifty percent (150%) of the Basic Rent for the
month immediately preceding the date of termination, and the monthly Basic Rent
for the third (3rd) and each successive month of holdover shall be the greater
of: (i) two hundred percent (200%) of the Basic Rent for the month immediately
preceding the date of termination; or (ii) the then current Basic Rent for
comparable space in the Building or Project, as the case may be. If Tenant
fails to surrender the Premises upon the expiration of this Lease despite demand
to do so by Landlord, Tenant shall indemnify and hold Landlord harmless from all
loss or liability, including
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without limitation, any claims made by any succeeding tenant relating to such
failure to surrender. Acceptance by Landlord of rent after the termination shall
not constitute a consent to a holdover or result in a renewal of this Lease. The
foregoing provisions of this Section are in addition to and do not affect
Landlord's right of re-entry or any other rights of Landlord under this Lease or
at law.
SECTION 15.2. MERGER ON TERMINATION. The voluntary or other surrender of
this Lease by Tenant, or a mutual termination of this Lease, shall terminate any
or all existing subleases unless Landlord, at its option, elects in writing to
treat the surrender or termination as an assignment to it of any or all
subleases affecting the Premises.
SECTION 15.3. SURRENDER OF PREMISES; REMOVAL OF PROPERTY. Upon the
Expiration Date or upon any earlier termination of this Lease, Tenant shall quit
and surrender possession of the Premises to Landlord in as good order, condition
and repair as when received or as hereafter may be improved by Landlord or
Tenant, reasonable wear and tear and repairs which are Landlord's obligation
excepted, and shall, without expense to Landlord, remove or cause to be removed
from the Premises all personal property and debris, except for any items that
Landlord may by written authorization allow to remain. Tenant shall repair all
damage to the Premises resulting from the removal, which repair shall include
the patching and filling of holes and repair of structural damage, provided that
Landlord may instead elect to repair any structural damage at Tenant's expense.
If Tenant shall fail to comply with the provisions of this Section, Landlord may
effect the removal and/or make any repairs, and the cost to Landlord shall be
additional rent payable by Tenant upon demand. If Tenant fails to remove
Tenant's personal property from the Premises upon the expiration of the Term,
Landlord may remove, store, dispose of and/or retain such personal property, at
Landlord's option, in accordance with then applicable laws, all at the expense
of Tenant. If requested by Landlord, Tenant shall execute, acknowledge and
deliver to Landlord an instrument in writing releasing and quitclaiming to
Landlord all right, title and interest of Tenant in the Premises.
ARTICLE XVI. PAYMENTS AND NOTICES
All sums payable by Tenant to Landlord shall be paid, without deduction or
offset (except as specifically set forth herein), in lawful money of the United
States to Landlord at its address set forth in Item 12 of the Basic Lease
Provisions, or at any other place as Landlord may designate in writing. Unless
this Lease expressly provides otherwise, as for example in the payment of rent
pursuant to Section 4.1, all payments shall be due and payable within fifteen
(15) days after demand. All payments requiring proration shall be prorated on
the basis of a thirty (30) day month and a three hundred sixty (360) day year.
Any notice, election, demand, consent, approval or other communication to be
given or other document to be delivered by either party to the other may be
delivered in person or by courier or overnight delivery service to the other
party, or may be deposited in the United States mail, duly registered or
certified, postage prepaid, return receipt requested, and addressed to the other
party at the address set forth in Item 12 of the Basic Lease Provisions; or may
be delivered by telecopy, provided that receipt thereof is telephonically
confirmed. Either party may, by written notice to the other, served in the
manner provided in this Article, designate a different address. If any notice or
other document is sent by mail, it shall be deemed received on the date of
delivery as shown on the receipt or the date of refusal if such delivery was not
accepted. If more than one person or entity is named as Tenant under this Lease,
service of any notice upon any one of them shall be deemed as service upon all
of them.
ARTICLE XVII. RULES AND REGULATIONS
Tenant agrees to observe faithfully and comply strictly with the Rules and
Regulations, attached as Exhibit E, and any reasonable and nondiscriminatory
---------
amendments, modifications and/or additions as may be adopted and published by
written notice to tenants by Landlord for the safety, care, security, good
order, or cleanliness of the Premises, Buildings, Project and Common Areas.
Landlord shall not be liable to Tenant for any violation of the Rules and
Regulations or the breach of any covenant or condition in any lease by any other
tenant or such tenant's agents, employees, contractors, guests or invitees. One
or more waivers by Landlord of any breach of the Rules and Regulations by Tenant
or by any other tenant(s) shall not be a waiver of any subsequent breach of that
rule or any other. Tenant's failure to keep and observe the Rules and
Regulations shall constitute a default under this Lease. In the case of any
conflict between the Rules and Regulations and this Lease, this Lease shall be
controlling.
ARTICLE XVIII. BROKER'S COMMISSION
The parties recognize as the broker(s) who negotiated this Lease the
firm(s), if any, whose name(s) is (are) stated in Item 10 of the Basic Lease
Provisions, and agree that Landlord shall be responsible for the payment of
brokerage commissions to those broker(s) unless otherwise provided in this
Lease. Tenant warrants that it has had no dealings with any other real estate
broker or agent in connection with the negotiation of this Lease, and Tenant
agrees to indemnify and hold Landlord harmless from any cost, expense or
liability (including reasonable attorneys' fees) for any compensation,
commissions or charges claimed by any other real estate broker or agent employed
or claiming to represent or to have been employed by Tenant in connection with
the negotiation of this Lease. The foregoing
24
agreement shall survive the termination of this Lease. If Tenant fails to take
possession of the Premises or if this Lease otherwise terminates prior to the
Expiration Date as the result of failure of performance by Tenant, Landlord
shall be entitled to recover from Tenant the unamortized portion of any
brokerage commission funded by Landlord in addition to any other damages to
which Landlord may be entitled.
ARTICLE XIX. TRANSFER OF LANDLORD'S INTEREST
In the event of any transfer of Landlord's interest in the Premises, the
transferor shall be automatically relieved of all obligations on the part of
Landlord accruing under this Lease from and after the date of the transfer,
provided that such obligations are assumed in writing by the transferee and any
funds held by the transferor in which Tenant has an interest shall be turned
over, subject to that interest, to the transferee and Tenant is notified of the
transfer as required by law. No holder of a mortgage and/or deed of trust to
which this Lease is or may be subordinate, and no landlord under a so-called
sale-leaseback, shall be responsible in connection with the Security Deposit,
unless the mortgagee or holder of the deed of trust or the landlord actually
receives the Security Deposit. It is intended that the covenants and obligations
contained in this Lease on the part of Landlord shall, subject to the foregoing,
be binding on Landlord, its successors and assigns, only during and in respect
to their respective successive periods of ownership.
ARTICLE XX. INTERPRETATION
SECTION 20.1. GENDER AND NUMBER. Whenever the context of this Lease
requires, the words "Landlord" and "Tenant" shall include the plural as well as
the singular, and words used in neuter, masculine or feminine genders shall
include the others.
SECTION 20.2. HEADINGS. The captions and headings of the articles and
sections of this Lease are for convenience only, are not a part of this Lease
and shall have no effect upon its construction or interpretation.
SECTION 20.3. JOINT AND SEVERAL LIABILITY. If more than one person or
entity is named as Tenant, the obligations imposed upon each shall be joint and
several and the act of or notice from, or notice or refund to, or the signature
of, any one or more of them shall be binding on all of them with respect to the
tenancy of this Lease, including, but not limited to, any renewal, extension,
termination or modification of this Lease.
SECTION 20.4. SUCCESSORS. Subject to Articles IX and XIX, all rights and
liabilities given to or imposed upon Landlord and Tenant shall extend to and
bind their respective heirs, executors, administrators, successors and assigns.
Nothing contained in this Section is intended, or shall be construed, to grant
to any person other than Landlord and Tenant and their successors and assigns
any rights or remedies under this Lease.
SECTION 20.5. TIME OF ESSENCE. Time is of the essence with respect to the
performance of every provision of this Lease.
SECTION 20.6. CONTROLLING LAW. This Lease shall be governed by and
interpreted in accordance with the laws of the State of California.
SECTION 20.7. SEVERABILITY. If any term or provision of this Lease, the
deletion of which would not adversely affect the receipt of any material benefit
by either party or the deletion of which is consented to by the party adversely
affected, shall be held invalid or unenforceable to any extent, the remainder of
this Lease shall not be affected and each term and provision of this Lease shall
be valid and enforceable to the fullest extent permitted by law.
SECTION 20.8. WAIVER AND CUMULATIVE REMEDIES. One or more waivers by
Landlord or Tenant of any breach of any term, covenant or condition contained in
this Lease shall not be a waiver of any subsequent breach of the same or any
other term, covenant or condition. Consent to any act by one of the parties
shall not be deemed to render unnecessary the obtaining of that party's consent
to any subsequent act. No breach by Tenant of this Lease shall be deemed to have
been waived by Landlord unless the waiver is in a writing signed by Landlord.
The rights and remedies of Landlord under this Lease shall be cumulative and in
addition to any and all other rights and remedies which Landlord may have.
SECTION 20.9. INABILITY TO PERFORM. In the event that either party shall
be delayed or hindered in or prevented from the performance of any work or in
performing any act required under this Lease by reason of any cause beyond the
reasonable control of that party, then the performance of the work or the doing
of the act shall be excused for the period of the delay and the time for
performance shall be extended for a period equivalent to the period of the
delay. The provisions of this Section shall not operate to excuse Tenant from
the prompt payment of rent or excuse either party from the timely performance of
any other obligation under this Lease within such party's reasonable control.
SECTION 20.10. ENTIRE AGREEMENT. This Lease and its exhibits and other
attachments cover in full each and every agreement of every kind between the
parties concerning the Premises, the Buildings, and the Project,
25
and all preliminary negotiations, oral agreements, understandings and/or
practices, except those contained in this Lease, are superseded and of no
further effect. Tenant waives its rights to rely on any representations or
promises made by Landlord or others which are not contained in this Lease. No
verbal agreement or implied covenant shall be held to modify the provisions of
this Lease, any statute, law, or custom to the contrary notwithstanding.
SECTION 20.11. QUIET ENJOYMENT. Upon the observance and performance of all
the covenants, terms and conditions on Tenant's part to be observed and
performed, and subject to the other provisions of this Lease, Tenant shall
peaceably and quietly hold and enjoy the Premises for the Term without hindrance
or interruption by Landlord or any other person claiming by or through Landlord.
SECTION 20.12. SURVIVAL. All covenants of Landlord or Tenant which
reasonably would be intended to survive the expiration or sooner termination of
this Lease, including, without limitation, any warranty or indemnity hereunder,
shall so survive and continue to be binding upon and inure to the benefit of the
respective parties and their successors and assigns.
ARTICLE XXI. EXECUTION AND RECORDING
SECTION 21.1. 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.
SECTION 21.2. CORPORATE AND PARTNERSHIP AUTHORITY. If Tenant is a
corporation or partnership, each individual executing this Lease on behalf of
the corporation or partnership represents and warrants that he is duly
authorized to execute and deliver this Lease on behalf of the corporation or
partnership, and that this Lease is binding upon the corporation or partnership
in accordance with its terms. Tenant shall, at Landlord's request, deliver a
certified copy of its board of directors' resolution or partnership agreement or
certificate authorizing or evidencing the execution of this Lease.
SECTION 21.3. EXECUTION OF LEASE; NO OPTION OR OFFER. The submission of
this Lease to Tenant shall be for examination purposes only, and shall not
constitute an offer to or option for Tenant to lease the Premises. Execution of
this Lease by Tenant and its return to Landlord shall not be binding upon
Landlord, notwithstanding any time interval, until Landlord has in fact executed
and delivered this Lease to Tenant, it being intended that this Lease shall only
become effective upon execution by Landlord and delivery of a fully executed
counterpart to Tenant.
SECTION 21.4. RECORDING. Tenant shall not record this Lease without the
prior written consent of Landlord. Tenant, upon the request of Landlord, shall
execute and acknowledge a "short form" memorandum of this Lease for recording
purposes.
SECTION 21.5. AMENDMENTS. No amendment or termination of this Lease shall
be effective unless in writing signed by authorized signatories of Tenant and
Landlord, or by their respective successors in interest. No actions, policies,
oral or informal arrangements, business dealings or other course of conduct by
or between the parties shall be deemed to modify this Lease in any respect.
SECTION 21.6. EXECUTED COPY. Any fully executed photocopy or similar
reproduction of this Lease shall be deemed an original for all purposes.
SECTION 21.7. ATTACHMENTS. All exhibits, amendments, riders and addenda
attached to this Lease are hereby incorporated into and made a part of this
Lease.
ARTICLE XXII. MISCELLANEOUS
SECTION 22.1. NON-DISCLOSURE 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 and attorneys, shall not intentionally and
voluntarily disclose the terms and conditions of this Lease to any other tenant
or apparent prospective tenant of the Buildings or Project, 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 and their respective attorneys, accountants and consultants or as may
be required by law.
SECTION 22.2. GUARANTY. As a condition to the execution of this Lease by
Landlord, the obligations, covenants and performance of the Tenant as herein
provided shall be guaranteed in writing by the Guarantor(s) listed in Item 7 of
the Basic Lease Provisions, if any, on a form of guaranty provided by Landlord.
26
SECTION 22.3. CHANGES REQUESTED BY LENDER. If, in connection with
obtaining financing for the Project, the lender shall request reasonable
modifications in this Lease as a condition to the financing, Tenant will not
unreasonably withhold or delay its consent, provided that the modifications do
not materially increase the obligations or materially decrease the rights of
Tenant or materially and adversely affect the leasehold interest created by this
Lease.
SECTION 22.4. MORTGAGEE PROTECTION. No act or failure to act on the part
of Landlord which would otherwise entitle Tenant to be relieved of its
obligations hereunder or to terminate this Lease shall result in such a release
or termination unless (a) Tenant has given notice by registered or certified
mail to any beneficiary of a deed of trust or mortgage covering the Buildings
whose address has been furnished to Tenant and (b) such beneficiary is afforded
a reasonable opportunity to cure the default by Landlord (which in no event
shall be less than sixty (60) days), including, if necessary to effect the cure,
time to obtain possession of the Buildings by power of sale or judicial
foreclosure provided that such foreclosure remedy is diligently pursued. Tenant
agrees that each beneficiary of a deed of trust or mortgage covering the
Buildings is an express third party beneficiary hereof, Tenant shall have no
right or claim for the collection of any deposit from such beneficiary or from
any purchaser at a foreclosure sale unless such beneficiary or purchaser shall
have actually received and not refunded the deposit, and Tenant shall comply
with any written directions by any beneficiary to pay rent due hereunder
directly to such beneficiary without determining whether an event of default
exists under such beneficiary's deed of trust.
SECTION 22.5. COVENANTS AND CONDITIONS. All of the provisions of this
Lease shall be construed to be conditions as well as covenants as though the
words specifically expressing or imparting covenants and conditions were used in
each separate provision.
SECTION 22.6. SECURITY MEASURES. Tenant hereby acknowledges that Landlord
shall have no obligation whatsoever to provide guard service or other security
measures for the benefit of the Premises or the Project. Tenant assumes all
responsibility for the protection of Tenant, its agents, invitees and property
from acts of third parties. Nothing herein contained shall prevent Landlord, at
its sole option, from providing security protection for the Project or any part
thereof, in which event the cost thereof shall be included within the definition
of Project Costs.
SECTION 22.7. JAMS ARBITRATION.
(a) All claims or disputes between Landlord and Tenant arising out
of, or relating to the Lease which either party is expressly authorized by a
provision hereof to submit to arbitration, shall be decided by the
JAMS/ENDISPUTE, or its successor, in Orange, California ("JAMS"), unless the
parties mutually agree otherwise. Within ten (10) business days following
submission to JAMS, JAMS shall designate three arbitrators and each party may,
within five (5) business days thereafter, veto one of the three persons so
designated. If two different designated arbitrators have been vetoed, the third
arbitrator shall hear and decide the matter. Any arbitration pursuant to this
Section shall be decided within thirty (30) days of submission of JAMS. The
decision of the arbitrator shall be final and binding on the parties. All costs
associated with arbitration shall be awarded to the prevailing party as
determined by the arbitrator.
(b) Notice of the demand for arbitration by either party to the Lease
shall be filed in writing with the other party to the Lease and with JAMS and
shall be made within a reasonable time after the dispute has arisen. The award
rendered by the arbitrators shall be final, and judgment may be entered upon it
in accordance with applicable law in any court having jurisdiction thereof.
Except by written consent of the person or entity sought to be joined, no
arbitration arising out of or relating to the Lease shall include, by
consolidation, joinder or in any other manner, any person or entity not a party
to the Lease under which such arbitration is filed if (1) such person or entity
is substantially involved in a common question of fact or law, (2) the presence
of such person or entity is required if complete relief is to be accorded in the
arbitration, or (3) the interest or responsibility of such person or entity in
the matter is not insubstantial.
(c) The agreement herein among the parties to the Lease and any other
written agreement to arbitrate referred to herein shall be specifically
enforceable under prevailing law.
[Signatures on next page]
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SECTION 22.8. COMMUNICATIONS EQUIPMENT. At any time upon the execution by
Tenant of Landlord's standard License Agreement (a copy of which is attached
hereto as Exhibit F), Tenant shall have the right at its sole cost and expense,
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during the Term of this Lease, to install, maintain and operate communications
equipment on the roof of the Building(s) which comprise the Premises. The
operation and maintenance of any such equipment shall be subject to the terms of
said License Agreement.
LANDLORD: TENANT:
THE IRVINE COMPANY NEW CENTURY FINANCIAL CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxx X. Sim By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------- ------------------------------
Xxxxxxx X. Sim Name: Xxxxxx X. Xxxxxxxxx
Executive Vice President -------------------------
Title: C.F.O
-------------------------
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxxxx Xxxxxxxxxxx
---------------------------- ------------------------------
Xxxxxx X. Xxxxxxxx, Xx. President Name: Xxxxxxxx Xxxxxxxxxxx
Irvine Industrial Company, -------------------------
a division of The Irvine Company Title: Vice President
------------------------
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[FLOOR PLAN OF - FIRST FLOOR 340 COMMERCE PREMISES]
EXHIBIT A
[FLOOR PLAN - SECOND FLOOR 340 COMMERCE PREMISES]
EXHIBIT A-1
[FLOOR PLAN - FIRST FLOOR 350 COMMERCE]
EXHIBIT A-2
[FLOOR PLAN - FIRST FLOOR 330 COMMERCE]
EXHIBIT A-3
EXHIBIT B
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IRVINE INDUSTRIAL COMPANY
HAZARDOUS MATERIALS SURVEY FORM
The purpose of this form is to obtain information regarding the use of
hazardous substances on Irvine Industrial Company property. Prospective tenants
and contractors should answer the questions in light of their proposed
operations on the premises. Existing tenants and contractors should answer the
questions as they relate to ongoing operations on the premises and should update
any information previously submitted.
If additional space is needed to answer the questions, you may attach
separate sheets of paper to this form. When completed, the form should be sent
to the following address:
Insignia/ESG of California, Inc.
0 Xxx, Xxxxx 000
Xxxxxx, XX 00000
Your cooperation in this matter is appreciated. If you have any questions,
please do not hesitate to call [insert name of Property Manager] at [insert
phone number] for assistance.
1. GENERAL INFORMATION
-------------------
Name of Responding Company:_________________________________________________
Check all that apply: Tenant ( ) Contractor ( ) Prospective ( ) Existing ( )
Mailing Address:____________________________________________________________
Contact Person & Title:_____________________________________________________
Telephone Number: (_____) _______________
Address of Leased Premises:_________________________________________________
Length of Lease or Contract Term:___________________________________________
Describe the proposed operations to take place on the property, including
principal products manufactured or services to be conducted. Existing
tenants and contractors should describe any proposed changes to ongoing
operations.
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
2. STORAGE OF HAZARDOUS MATERIALS
------------------------------
2.1 Will any hazardous materials be used or stored on-site?
Wastes Yes ( ) No ( )
Chemical Products Yes ( ) No ( )
Biological Hazards/ Yes ( ) No ( )
Infectious Wastes Yes ( ) No ( )
Radioactive Materials Yes ( ) No ( )
2.2 List any hazardous materials to be used or stored, the quantities that
will be on-site at any given time, and the location and method of
storage (e.g., bottles in storage closet on the premises).
Location and Method
-------------------
Hazardous Materials of Storage Quantity
------------------- ----------- --------
___________________ ________________ ________
___________________ ________________ ________
___________________ ________________ ________
___________________ ________________ ________
___________________ ________________ ________
1
2.3 Is any underground storage of hazardous substances proposed or
currently conducted on the premises? Yes ( ) No ( )
If yes, describe the materials to be stored, and the size and
construction of the tank. Attach copies of any permits obtained for
the underground storage of such substances.
___________________________________________________________________________
___________________________________________________________________________
3. SPILLS
------
3.1 During the past year, have any spills occurred on the premises?
Yes ( ) No ( )
If so, please describe the spill and attach the results of any testing
conducted to determine the extent of such spills.
3.2 Were any agencies notified in connection with such spills?
Yes ( ) No ( )
If so, attach copies of any spill reports or other correspondence with
regulatory agencies.
3.3 Were any clean-up actions undertaken in connection with the spills?
Yes ( ) No ( )
If so, briefly describe the actions taken. Attach copies of any
clearance letters obtained from any regulatory agencies involved and
the results of any final soil or groundwater sampling done upon
completion of the clean-up work.
4. WASTE MANAGEMENT
----------------
4.1 List the waste, if any, generated or to be generated at the premises,
whether it is as hazardous waste, biological or radioactive hazard,
its hazard class and the quantity generated on a monthly basis.
Waste Hazard Class Quantity/Month
_____________ _________________ _________________
_____________ _________________ _________________
_____________ _________________ _________________
_____________ _________________ _________________
4.2 Describe the method(s) of disposal for each waste. Indicate where and
how often disposal will take place.___________________________________
______________________________________________________________________
______________________________________________________________________
4.3 Is any treatment or processing of hazardous, infectious or radioactive
wastes currently conducted or proposed to be conducted at the
premises? Yes ( ) No ( )
If yes, please describe any existing or proposed treatment
methods.______________________________________________________________
______________________________________________________________________
______________________________________________________________________
4.4 Attach copies of any hazardous waste permits or licenses issued to
your company with respect to its operations on the premises.
5. WASTEWATER TREATMENT/DISCHARGE
------------------------------
5.1 Do you discharge industrial wastewater to:
___ storm drain? ___ sewer?
___ surface water? ___ no industrial discharge
5.2 Is your industrial wastewater treated before discharge? Yes ( ) No ( )
If yes, describe the type of treatment conducted.
5.3 Attach copies of any wastewater discharge permits issued to your
company with respect to its operations on the premises.
6. AIR DISCHARGES
--------------
6.1 Do you have any air filtration systems or stacks that discharge into
the air? Yes ( ) No ( )
2
6.2 Do you operate any equipment that require air emissions permits?
Yes ( ) No ( )
6.3 Attach copies of any air discharge permits pertaining to these
operations.
7. HAZARDOUS MATERIALS DISCLOSURES
-------------------------------
7.1 Does your company handle an aggregate of at least 500 pounds, 55
gallons or 200 cubic feet of hazardous material at any given time? If
so, state law requires that you prepare a hazardous materials
management plan. Yes ( ) No ( )
7.2 Has your company prepared a hazardous materials management plan
('business plan') pursuant to state and Orange County Fire Department
requirements? Yes ( ) No ( )
If so, attach a copy of the business plan.
7.3 Are any of the chemicals used in your operations regulated under
Proposition 65? Yes ( ) No ( )
If so, describe the actions taken, or proposed actions to be taken, to
comply with Proposition 65 requirements.
7.4 Is your company subject to OSHA Hazard Communication Standard
Requirements?
Yes ( ) No ( )
If so, describe the procedures followed to comply with these
requirements.
8. ENFORCEMENT ACTIONS, COMPLAINTS
-------------------------------
8.1 Has your company ever been subject to any agency enforcement actions,
administrative orders, or consent decrees? Yes ( ) No ( )
If so, describe the actions and any continuing compliance obligations
imposed as a result of these actions.
8.2 Has your company ever received requests for information, notice or
demand letters, or any other inquiries regarding its operations?
Yes ( ) No ( )
8.3 Have there ever been, or are there now pending, any lawsuits against
your company regarding any environmental or health and safety
concerns? Yes ( ) No ( )
8.4 Has an environmental audit ever been conducted at your company's
current facility? Yes ( ) No ( )
If so, discuss the results of the audit.
8.5 Have there been any problems or complaints from neighbors at your
company's current facility? Yes ( ) No ( )
________________________________________
________________________________________
By:_____________________________________
Its:_____________________________
Date:____________________________
By:_____________________________________
Its:_____________________________
Date:____________________________
3
EXHIBIT C
---------
LANDLORD'S DISCLOSURES
SPECTRUM
The capitalized terms used and not otherwise defined in this Exhibit shall
have the same definitions as set forth in the Lease. The provisions of this
Exhibit shall supersede any inconsistent or conflicting provisions of the Lease.
1. Landlord has been informed that the El Toro Marine Corps Air Station
(MCAS) has been listed as a Federal Superfund site as a result of chemical
releases occurring over many years of occupancy. Various chemicals including jet
fuel, motor oil and solvents have been discharged in several areas throughout
the MCAS site. A regional study conducted by the Orange County Water District
has estimated that groundwaters beneath more than 2,900 acres have been impacted
by Trichloroethlene (TCE), an industrial solvent. There is a potential that this
substance may have migrated into the ground water underlying the Premises. The
U.S. Environmental Protection Agency, the Santa Xxx Region Quality Control
Board, and the Orange County Health Care Agency are overseeing the
investigation/cleanup of this contamination. To the Landlord's current actual
knowledge, the ground water in this area is used for irrigation purposes only,
and there is no practical impediment to the use or occupancy of the Premises due
to the El Toro discharges.
Page 1 of 1
EXHIBIT D
---------
TENANT'S INSURANCE
The following standards for Tenant's insurance shall be in effect at the
Premises. Landlord reserves the right to adopt reasonable nondiscriminatory
modifications and additions to those standards. Tenant agrees to obtain and
present evidence to Landlord that it has fully complied with the insurance
requirements.
1. Tenant shall, at its sole cost and expense, commencing on the date
Tenant is given access to the Premises for any purpose and during the entire
Term, procure, pay for and keep in full force and effect: (i) commercial general
liability insurance with respect to the Premises and the operations of or on
behalf of Tenant in, on or about the Premises, including but not limited to
personal injury, owned and nonowned automobile, blanket contractual, independent
contractors, broad form property damage (with an exception to any pollution
exclusion with respect to damage arising out of heat, smoke or fumes from a
hostile fire), fire and water legal liability, products liability (if a product
is sold from the Premises), liquor law liability (if alcoholic beverages are
sold, served or consumed within the Premises), and severability of interest,
which policy(ies) shall be written on an "occurrence" basis and for not less
than the amount set forth in Item 13 of the Basic Lease Provisions, with a
combined single limit (with a $50,000 minimum limit on fire legal liability) per
occurrence for bodily injury, death, and property damage liability, or the
current limit of liability carried by Tenant, whichever is greater, and subject
to such increases in amounts as Landlord may reasonably determine from time to
time; (ii) workers' compensation insurance coverage as required by law, together
with employers' liability insurance; (iii) with respect to improvements,
alterations, and the like required or permitted to be made by Tenant under this
Lease, builder's all-risk insurance, in an amount equal to the replacement cost
of the work; (iv) insurance against fire, vandalism, malicious mischief and such
other additional perils as may be included in a standard "all risk" form in
general use in Orange County, California, insuring Tenant's alterations,
improvements, trade fixtures, furnishings, equipment and items of personal
property of Tenant located in the Premises, in an amount equal to not less than
ninety percent (90%) of their actual replacement cost (with replacement cost
endorsement); and (v) business interruption insurance in amounts satisfactory to
cover one (1) year of loss. In no event shall the limits of any policy be
considered as limiting the liability of Tenant under this Lease.
2. In the event Landlord consents to Tenant's use, generation or storage
of Hazardous Materials on, under or about the Premises pursuant to Section 5.3
of this Lease, Landlord shall have the continuing right to require Tenant, at
Tenant's sole cost and expense (provided the same is available for purchase upon
commercially reasonable terms), to purchase insurance specified and approved by
Landlord, with coverage not less than Five Million Dollars ($5,000,000.00),
insuring (i) any Hazardous Materials shall be removed from the Premises, (ii)
the Premises shall be restored to a clean, healthy, safe and sanitary condition,
and (iii) any liability of Tenant, Landlord and Landlord's officers, directors,
shareholders, agents, employees and representatives, arising from such Hazardous
Materials.
3. All policies of insurance required to be carried by Tenant pursuant to
this Exhibit D containing a deductible exceeding Ten Thousand Dollars
---------
($10,000.00) per occurrence must be approved in writing by Landlord prior to the
issuance of such policy. Tenant shall be solely responsible for the payment of
all deductibles under insurance policies carried by Tenant.
4. All policies of insurance required to be carried by Tenant pursuant to
this Exhibit D shall be written by responsible insurance companies authorized to
---------
do business in the State of California and with a Best's rating of not less than
"A- X" subject to final acceptance and approval by Landlord. Any insurance
required of Tenant may be furnished by Tenant under any blanket policy carried
by it or under a separate policy, so long as (i) the Premises are specifically
covered (by rider, endorsement or otherwise), (ii) the limits of the policy are
applicable on a "per location" basis to the Premises and provide for restoration
of the aggregate limits, and (iii) the policy otherwise complies with the
provisions of this Exhibit D. A true and exact copy of each paid up policy
---------
evidencing the insurance (appropriately authenticated by the insurer) or a
certificate of insurance, certifying that the policy has been issued, provides
the coverage required by this Exhibit D and contains the required provisions,
---------
shall be delivered to Landlord prior to the date Tenant is given the right of
possession of the Premises. Proper evidence of the renewal of any insurance
coverage shall also be delivered to Landlord not less than thirty (30) days
prior to the expiration of the coverage.
5. Each policy evidencing insurance required to be carried by Tenant
pursuant to this Exhibit D shall contain the following provisions and/or clauses
---------
satisfactory to Landlord: (i) a provision that the policy and the coverage
provided shall be primary and that any coverage carried by Landlord shall be
noncontributory with respect to any policies carried by Tenant except as to
workers' compensation insurance; (ii) a provision including Landlord, the
Additional Insureds identified in Item 11 of the Basic Lease Provisions, and any
other parties in interest designated by Landlord as an additional insured,
except as to workers' compensation insurance; (iii)with respect to the all-risk,
business interruption and workers' compensation insurance, a waiver by the
insurer of any right to subrogation against Landlord, its agents, employees,
contractors and representatives which arises or might arise by reason of any
payment under the policy or by reason of any act or omission of Landlord, its
agents, employees, contractors or representatives; and (iv) a provision that the
insurer will not cancel or change the coverage provided by the policy without
first giving Landlord thirty (30) days prior written notice.
6. In the event that Tenant fails to procure, maintain and/or pay for, at
the times and for the durations specified in this Exhibit D, any insurance
---------
required by this Exhibit D, or fails to carry insurance required by any
---------
governmental authority, Landlord may, after written notice to Tenant, at its
election procure that insurance and pay the premiums, in which event Tenant
shall repay Landlord all sums paid by Landlord, together with interest at the
maximum rate permitted by law and any related costs or expenses incurred by
Landlord, within ten (10) days following Landlord's written demand to Tenant.
Page 1 of 1
EXHIBIT E
---------
RULES AND REGULATIONS
This Exhibit sets forth the rules and regulations governing Tenant's
use of the Premises leased to Tenant pursuant to the terms, covenants and
conditions of the Lease to which this Exhibit is attached and therein made part
thereof. In the event of any conflict or inconsistency between this Exhibit and
the Lease, the Lease shall control.
1. Tenant shall not place anything or allow anything to be placed
near the glass of any window, door, partition or wall which may appear unsightly
from outside the Premises.
2. The walls, walkways, sidewalks, entrance passages, courts and
vestibules shall not be obstructed or used for any purpose other than ingress
and egress of pedestrian travel to and from the Premises, and shall not be used
for loitering, or to display, store or place any merchandise, equipment or
devices, or for any other purpose. The walkways, entrance passageways, courts,
vestibules and roof are not for the use of the general public and Landlord shall
in all cases retain the right to control and prevent access thereto by all
persons whose presence in the reasonable judgment of the Landlord shall be
prejudicial to the safety, character, reputation and interests of the Building
and its tenants, provided that nothing herein contained shall be construed to
prevent such access to persons with whom Tenant normally deals in the ordinary
course of Tenant's business unless such persons are engaged in illegal
activities. No tenant or employee or invitee of any tenant shall be permitted
upon the roof of the Building.
3. No awnings or other projection shall be attached to the outside
walls of the Building. No security bars or gates, curtains, blinds, shades or
screens shall be attached to or hung in, or used in connection with, any window
or door of the Premises without the prior written consent of Landlord. Neither
the interior nor exterior of any windows shall be coated or otherwise
sunscreened without the express written consent of Landlord.
4. Except for usual and customary mounting or hanging of pictures,
signs, white boards or other items of decoration, Tenant shall not xxxx, nail,
paint, drill into, or in any way deface any part of the Premises or the
Building. Tenant shall not lay linoleum, tile, carpet or other similar floor
covering so that the same shall be affixed to the floor of the Premises in any
manner except as approved by Landlord in writing. The expense of repairing any
damage to wall surfaces or removal of any wall or floor covering shall be borne
by Tenant.
5. The toilet rooms, urinals, wash bowls and other plumbing
apparatus shall not be used for any purpose other than that for which they were
constructed and no foreign substance of any kind whatsoever shall be thrown
therein. The expense of any breakage, stoppage or damage resulting from the
violation of this rule shall be borne by the tenant who, or whose employees or
invitees, caused it.
6. Landlord shall direct electricians as to the manner and location
of any future telephone wiring. No boring or cutting for wires will be allowed
without the prior consent of Landlord. The locations of the telephones, call
boxes and other office equipment affixed to the Premises shall be subject to the
prior written approval of Landlord.
7. The Premises shall not be used for manufacturing or for the
storage of merchandise except as such storage may be incidental to the permitted
use of the Premises. No exterior storage shall be allowed at any time without
the prior written approval of Landlord. The Premises shall not be used for
cooking or washing clothes without the prior written consent of Landlord, or for
lodging or sleeping or for any immoral or illegal. The foregoing provisions are
not intended and shall not be construed to prevent the use of microwave ovens,
vending machines, coffee makers and other food preparation appliances as are
commonly used in office facilities provided all are used in accordance with the
terms of the Lease and applicable law.
8. Tenant shall not make, or permit to be made from within the
Premises, any unseemly or disturbing noises or disturb or interfere with
occupants of this or neighboring buildings or premises or those having business
with them, whether by the use of any musical instrument, radio, phonograph,
noise, or otherwise. Tenant shall not use, keep or permit to be used, or kept,
any foul or obnoxious gas or substance in the Premises or permit or suffer the
Premises to be used or occupied in any manner offensive or objectionable to
Landlord or other occupants of this or neighboring buildings or premises by
reason of any odors, fumes or gases.
9. No animals shall be permitted at any time within the Premises
except service animals being used by disabled persons.
10. Tenant shall not use the name of the Building or the Project in
connection with or in promoting or advertising the business of Tenant, except as
Tenant's address, without the written consent of Landlord. Landlord shall have
the right to prohibit any advertising by any Tenant which, in Landlord's
reasonable opinion, tends to impair the reputation of the Project or its
desirability for its intended uses, and upon written notice from Landlord any
Tenant shall refrain from or discontinue such advertising.
11. Canvassing, soliciting, peddling, parading, picketing,
demonstrating or otherwise engaging in any conduct that unreasonably impairs the
value or use of the Premises or the Project are prohibited and each Tenant shall
cooperate to prevent the same.
1
12. No equipment of any type shall be placed on the Premises which in
Landlord's opinion exceeds the load limits of the floor or otherwise threatens
the soundness of the structure or improvements of the Building.
13. No air conditioning unit or other similar apparatus shall be
installed or used by any Tenant without the prior written consent of Landlord.
14. No aerial antenna shall be erected on the roof or exterior walls
of the Premises, or on the grounds, without in each instance, the prior written
consent of Landlord. Any aerial or antenna so installed without such written
consent shall be subject to removal by Landlord at any time without prior notice
at the expense of the Tenant, and Tenant shall upon Landlord's demand pay a
removal fee to Landlord of not less than $200.00.
15. The entire Premises, including vestibules, entrances, doors,
fixtures, windows and plate glass, shall at all times be maintained in a safe,
neat and clean condition by Tenant. All trash, refuse and waste materials shall
be regularly removed from the Premises by Tenant and placed in the containers at
the locations designated by Landlord for refuse collection. All cardboard boxes
must be "broken down" prior to being placed in the trash container. All
styrofoam chips must be bagged or otherwise contained prior to placement in the
trash container, so as not to constitute a nuisance. Pallets may not be disposed
of in the trash container or enclosures. The burning of trash, refuse or waste
materials is prohibited.
16. Tenant shall use at Tenant's cost a pest extermination contractor
as reasonably necessary to keep the Premises free from infestation.
17. All keys for the Premises shall be provided to Tenant by Landlord
and Tenant shall return to Landlord any of such keys so provided upon the
termination of the Lease. Tenant shall not change locks or install other locks
on doors of the Premises, without the prior written consent of Landlord. In the
event of loss of any keys furnished by Landlord for Tenant, Tenant shall pay to
Landlord the costs thereof.
18. No person shall enter or remain within the Project while
intoxicated or under the influence of liquor or drugs. Landlord shall have the
right to exclude or expel from the Project any person who, in the absolute
discretion of Landlord, is under the influence of liquor or drugs.
Landlord reserves the right to amend or supplement the foregoing Rules
and Regulations and to adopt and promulgate additional reasonable and
nondiscriminatory rules and regulations applicable to the Premises. Notice of
such rules and regulations and amendments and supplements thereto, if any, shall
be given to the Tenant.
2
EXHIBIT F
---------
LICENSE AGREEMENT
THIS LICENSE AGREEMENT ("License") made this _____ day of _______________,
199__, by and between The Irvine Company, a Delaware corporation ("Licensor"),
and _______________ ("Licensee").
RECITALS
--------
Licensor is the owner of certain real property, located at ________________
______________________________, Irvine, California (the "Building"). Licensor
and Licensee have entered into a lease (the "Lease") for space in the Building
more particularly described as ______________________________. The parties
desire to provide for the use by Licensee of a portion of the roof of the
Building as provided below.
TERMS AND CONDITIONS
--------------------
1. Licensed Area: For valuable consideration, receipt of which is hereby
-------------
acknowledged and the covenants and conditions to be observed and performed by
Licensee, Licensor hereby grants to Licensee a license and permission to enter
upon the areas shown on Exhibit A of this License (the "License Area") to
---------
install, operate and maintain one satellite dish ("Dish") on the roof of the
Building in the location designated by Licensor together with required cabling,
wires and conduits as may be required (the Dish and related conduits and cabling
are referred to as the "Equipment") in order to serve Tenant in connection with
its business activities conducted in Premises. Licensor reserves the right upon
reasonable notice to Licensee to require either (a) the relocation of all
Equipment installed by Licensee pursuant to this License; or (b) the removal of
any or all of such Equipment should Licensor determine that its presence may
result in damage to the Building and that Licensee has not made satisfactory
arrangements to protect Licensor therefrom.
2. Term: The term of this License shall be coterminous with the Lease.
----
3. Use: Licensee shall use the License Areas only for the installation,
---
operation and maintenance of Equipment the height, appearance, installation and
maintenance procedures for which have been approved in writing by Licensor.
Licensee may have access to the License Area during normal business hours and at
other times by providing Licensor with reasonable prior notice and by
reimbursing Licensor for any expenses incurred by Licensor in connection
therewith.
4. Rental. Licensee shall pay no license fee or additional rent for the
------
use and occupancy of the License Area during the initial Term of the Lease.
5. Licensee's Operations: During the term of this License, the Licensed
---------------------
Area and all Equipment placed and maintained thereon shall be used by the
Licensee for the use specified and for no other use or purpose. Licensee shall
not use or permit any other person to use the License Area, or any part thereof,
for any improper or offensive use or to constitute a nuisance and Licensee shall
at all times conform to and cause all persons using any part of the License Area
to comply with all applicable laws, rules and regulations and covenants,
conditions and restrictions from time to time applicable thereto and to all
operations thereon.
Licensee shall require its employees, when using the License Area, to
stay within the immediate confines thereof. In addition, in the event a cable
television system or other communication system is operating in the area,
Licensee shall at all times during the term of the License conduct its
operations so as to ensure that such systems shall not be subjected to harmful
interference as a result of such operations by Licensee. Upon notification from
Licensor of any such interference, Licensee agrees to immediately take the
necessary steps to correct such situation, and Licensee's failure to do so shall
be deemed a default under the terms of this License.
During the term of this License, Licensee shall comply with any
standards promulgated by applicable governmental authorities or otherwise
reasonably established by Licensor regarding the generation of electromagnetic
fields. Should Licensor determine in good faith at any time that the Dish poses
a health or safety hazard to occupants of the Building, Licensor may require
Licensee to remove the Dish or make other arrangements reasonably satisfactory
to Licensor. Any claim or liability resulting from the use of the Dish shall be
subject to the indemnification obligations set forth in the Paragraph below
entitled "Licensor's Nonliability."
6. Removal: Upon the expiration or earlier termination of this License,
-------
Licensee shall remove the Dish and the other Equipment installed by it and shall
restore the License Area to their original condition.
EXHIBIT F
To Lease
1
7. Licensor's Nonliability: Licensor shall not be liable for any loss,
-----------------------
damage or injury of any kind whatsoever to the property of Licensee or the
property or person, including death, of any of Licensee's employees, agents or
invitees or of any other person whomsoever caused by any use of the License Area
or occasioned by the failure on the part of Licensee to maintain said License
Area in safe condition, or by any act or omission of Licensee or of any of
Licensee's employees, agents or invitees, or arising from any other cause
whatsoever; and Licensee, as a material part of the consideration of this
License, hereby waives on its behalf all claims and demands against Licensor for
any such loss, damage or injury suffered by Licensee, and hereby agrees to
indemnify, defend and save Licensor free and harmless from liability for any
such loss, damage or injury of third persons, and from all costs, expenses and
charges arising therefrom or in connection therewith, including reasonable
attorneys' fees. In addition, Licensee agrees to reimburse Licensor for the
cost of repairing any damage to the Building caused by the exercise of
Licensee's rights hereunder.
8. Liens: Licensee shall not permit to be enforced against the License
-----
Area any mechanics', materialmen's, contractors' or other liens arising from, or
any claims for damage growing out of, any work of installation, repair or
alteration as herein authorized or otherwise arising (except from the actions of
Licensor) and Licensee shall pay or cause to be paid all of said liens and
claims before any action is brought to enforce the same against Licensor or the
License Area; and Licensee agrees to indemnify and hold Licensor and the License
Area free and harmless from all liability for any and all such liens and claims
and all costs and expenses in connection therewith.
9. Taxes: During the term of this License, Licensor shall pay all taxes
-----
attributable to any Equipment installed in the License Area by or at the request
of Licensee.
10. Assignment: This License shall not be assignable in whole or in part,
----------
and any attempted assignment thereof, without the consent of Licensor, shall
immediately terminate this License.
11. Insurance/Indemnity: The insurance and indemnity provisions of the
-------------------
Lease shall govern Licensee's use of the License Area. In the event the
exercise of Licensee's rights hereunder result in any increase in Licensor's
insurance rates on the Building, Licensee shall promptly following demand
reimburse Licensor for such additional expenses incurred by Licensor.
12. Remedies: Should Licensee default in the performance of or breach any
--------
covenant or condition on Licensee's part to be kept and performed under the
Lease or this License, then in any such event Licensor may, at its option,
without prejudice to any other right or remedy it may have, terminate this
License hereunder by giving Licensee written notice of such termination, and
upon such termination all rights of Licensee shall cease and end.
13. Covenants and Conditions: This License and each and all of the
------------------------
covenants and conditions hereof shall inure to the benefit of and shall bind the
successors in interest of Licensor and subject to the restrictions set forth in
the above Paragraph entitled "Assignment," the successors and assigns of
Licensee.
14. Notices: Any notices or other communications between the parties shall
-------
be sent in the same manner and to the same persons or entities as set forth in
the Lease.
The parties hereto have executed this License as of the date first above
written.
LICENSOR: LICENSEE:
__________________________________ _____________________________________
__________________________________ _____________________________________
By: ______________________________ By: _________________________________
Name: ______________________ Name: _________________________
Title: _____________________ Title: _____________________
By: ______________________________ By: _________________________________
Name: ______________________ Name: _________________________
Title: _____________________ Title: ________________________
EXHIBIT F
To Lease
2
EXHIBIT X
---------
INDUSTRIAL WORK LETTER
DOLLAR ALLOWANCE
The Tenant Improvement work (herein "Tenant Improvements") shall consist of any
work, including work in place as of the date hereof, required to complete the
Premises pursuant to the approved Working Drawings and Specifications (as
hereinafter defined). All of the Tenant Improvement work shall be performed by
a contractor selected by Landlord in accordance with the procedures and
requirements set forth below. Landlord shall obtain bids from at least three (3)
contractors one of which may be JLC Construction subject to Landlord's
approval after receipt of sufficient background information. When requesting
bids, Landlord shall request bid alternates for shortened construction
schedules. Landlord shall consult with Tenant regarding its selection of
contractor but the final determination shall be up to Landlord. When analyzing
bid alternates, Landlord agrees to allow Tenant to apply up to Fifty Cents
($.50) per useable square foot of Landlord's Contribution to expedite
construction. Any cost to expedite construction in excess of that amount shall
be at Tenant's sole cost and expense. Landlord shall select the lowest qualified
bidder taking into consideration not only the price of the work to be performed
but also the time for completion. In the event Landlord selects other than the
lowest bidder, it shall do so based on commercially reasonable factors which it
shall demonstrate to Tenant.
I. ARCHITECTURAL AND CONSTRUCTION PROCEDURES.
-----------------------------------------
A. Tenant and Landlord have approved, or shall approve within the time period
set forth below, both (i) a detailed space plan for the Premises, prepared
by Landlord's architect, which includes interior partitions, ceilings,
interior finishes, interior doors, suite entrance, floor coverings, window
coverings, lighting, electrical and telephone outlets, plumbing
connections, heavy floor loads and other special requirements ("Preliminary
Plan"), and (ii) an estimate, prepared by Landlord's contractor, of the
cost for which Landlord will complete or cause to be completed the Tenant
Improvements ("Preliminary Cost Estimate"). Tenant shall approve or
disapprove each of the Preliminary Plan and the Preliminary Cost Estimate
by signing copies of the appropriate instrument and delivering same to
Landlord within five (5) days of its receipt by Tenant. If Tenant
disapproves any matter, Tenant shall specify in detail the reasons for
disapproval and Landlord shall attempt to modify the Preliminary Plan and
the Preliminary Cost Estimate to incorporate Tenant's suggested revisions
in a mutually satisfactory manner. In no event, however, shall Tenant have
the right to make additions to the Preliminary Plan as part of its approval
thereof which would increase the improvements to be paid for by "Landlord's
Contribution" (as hereinafter defined), it being understood and agreed that
the Preliminary Plan submitted by Landlord's architect is intended to
include all improvements desired by Tenant using Landlord's "Standards" (as
hereinafter defined), whether or not the full amount of Landlord's
Contribution would be required to complete construction of the improvements
as shown in the Preliminary Plan. Notwithstanding the foregoing, Landlord
agrees that Tenant shall have the right to make modifications, additions or
Changes to an approved Preliminary Plan or Working Drawings and
Specifications, to incorporate additional Standards, and to use up to Fifty
Cents ($.50) per rentable square foot of Landlord's Contribution to pay the
cost of any such modifications, additions or Changes. In all events, Tenant
shall approve in all respects a Preliminary Plan and Preliminary Cost
Estimate not later than the date set forth in Item 15 of the Basic Lease
Provisions ("Plan Approval Date"), it being understood that Tenant's
failure to do so shall constitute a "Tenant Delay" for purposes of this
Lease.
B. On or before the Plan Approval Date, Tenant shall provide in writing to
Landlord or Landlord's architect all specifications and information
requested by Landlord for the preparation of final construction documents
and costing, including without limitation Tenant's final selection of wall
and floor finishes, complete specifications and locations (including load
and HVAC requirements) of Tenant's equipment, and details of all "Non-
Standard Improvements" (as defined below) to be installed in the Premises
(collectively, "Programming Information"). Tenant's failure to provide the
Programming Information by the Plan Approval Date shall constitute a Tenant
Delay for purposes of this Lease. Tenant understands that final
construction documents for the Tenant Improvements shall be predicated on
the Programming Information, and accordingly that such information must be
accurate and complete.
C. Except as specified in the Preliminary Plan or otherwise authorized by
Landlord, the Tenant Improvements shall incorporate Landlord's building
standard materials and specifications ("Standards"). No deviations from
the Standards shall be permitted, provided that Landlord may, in its sole
and absolute discretion, authorize in writing one or more of such
deviations if requested by Tenant, in which event any excess cost of such
deviations shall be part of "Tenant's Contribution" (as hereinafter
defined) and Tenant shall be solely responsible for the cost of replacing
same with the applicable Standard item(s) upon the expiration or
termination of this Lease. Landlord shall in no event be required to
approve any deviations from the Standards ("Non-Standard Improvements") if
Landlord determines that such improvement (i) is of a lesser quality than
the corresponding Standard, (ii) fails to conform to applicable
governmental requirements, (iii) requires building services beyond the
level normally provided to other tenants, (iv) would delay construction
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of the Tenant Improvements beyond the Estimated Commencement Date and
Tenant declines to accept such delay in writing as a Tenant Delay, or (v)
would have an adverse aesthetic impact from the exterior of the Premises.
D. Upon Tenant's approval of the Preliminary Plan and Preliminary Cost
Estimate and delivery of the complete Programming Information, Landlord's
architect and engineers shall prepare and deliver to Tenant working
drawings and specifications ("Working Drawings and Specifications"), and
Landlord's contractor shall prepare a final construction cost estimate
("Final Cost Estimate") for the Tenant Improvements in conformity with the
Working Drawings and Specifications. The Final Cost Estimate shall be
delivered to Tenant for its approval only if such Estimate exceeds both the
approved Preliminary Cost Estimate and the amount of the Landlord's
---
Contribution. Tenant shall have five (5) days from the receipt thereof to
approve or disapprove the Working Drawings and Specifications and (if
delivered to Tenant) the Final Cost Estimate. Tenant shall not unreasonably
withhold or delay its approval, and any disapproval or requested
modification shall be limited to items not contained in the approved
Preliminary Plan or Preliminary Cost Estimate. Should Tenant disapprove the
Working Drawings and Specifications and the Final Cost Estimate, such
disapproval shall be accompanied by a detailed list of revisions. Any
revision requested by Tenant and accepted by Landlord shall be incorporated
into a revised set of Working Drawings and Specifications and Final Cost
Estimate, and Tenant shall approve same in writing within five (5) days of
receipt without further revision. Tenant's failure to comply in a timely
manner with any of the requirements of this paragraph shall constitute a
Tenant Delay. Without limiting the rights of Landlord for Tenant Delays as
set forth herein, in the event Tenant has not approved both the Working
Drawings and Specifications and the Final Cost Estimate within sixty (60)
days following the date of this Lease, then Landlord may, at its option,
elect to terminate this Lease by written notice to Tenant. In the event
Landlord elects to effect such a termination, Tenant shall, within ten (10)
days following demand by Landlord, pay to Landlord any costs incurred by
Landlord in connection with the preparation or review of plans,
construction estimates, price quotations, drawings or specifications under
this Work Letter and for all costs incurred in the preparation and
execution of this Lease, including any leasing commissions.
E. In the event that Tenant requests in writing a revision in the approved
Working Drawings and Specifications ("Change"), Landlord shall advise
Tenant by written change order as soon as is practical of any increase in
the Completion Cost and/or any Tenant Delay such Change would cause.
Tenant shall approve or disapprove such change order in writing within two
(2) days following its receipt from Landlord. Tenant's approval of such
Change shall be accompanied by Tenant's payment of any increase in the
Completion Cost in excess of Landlord's Contribution resulting from such
Change. Landlord shall have the right to decline Tenant's request for a
Change for any of the reasons set forth in Article II.C above for
Landlord's disapproval of a Non-Standard Improvement. It is understood
that Landlord shall have no obligation to interrupt or modify the Tenant
Improvement work pending Tenant's approval of a change order.
F. Notwithstanding any provision in the Lease to the contrary, if Tenant fails
to comply with any of the time periods specified in this Work Letter, fails
otherwise to approve or reasonably disapprove any submittal within five (5)
days, fails to approve in writing both the Preliminary Plan and Preliminary
Cost Estimate for the Tenant Improvements by the Plan Approval Date, fails
to provide all of the Programming Information requested by Landlord by the
Plan Approval Date, fails to approve in writing the Working Drawings and
Specifications or the Final Cost Estimate within the time provided herein,
requests any Changes, furnishes inaccurate or erroneous specifications or
other information, or otherwise delays in any manner the completion of the
Tenant Improvements (including without limitation by specifying materials
that are not readily available) or the issuance of an occupancy certificate
(any of the foregoing being referred to in this Lease as a "Tenant Delay"),
then Tenant shall bear any resulting additional construction cost or other
expenses, and the Commencement Date of this Lease shall be deemed to have
occurred for all purposes, including Tenant's obligation to pay rent, as of
the date Landlord reasonably determines that it would have been able to
deliver the Premises to Tenant but for the collective Tenant Delays. In no
event, however, shall such date be earlier than the Estimated Commencement
Date set forth in the Basic Lease Provisions. Notwithstanding the
foregoing, no Tenant Delay shall be deemed to have occurred unless and
until Landlord has given Tenant written notice of the act or omission which
constitutes the basis for such Tenant Delay and such act or omission is not
cured within one (1) complete business day after Tenant's receipt of such
notice. Should Landlord determine that the Commencement Date should be
advanced in accordance with the foregoing, it shall so notify Tenant in
writing. Landlord's determination shall be conclusive unless Tenant
notifies Landlord in writing, within fifteen (15) days thereafter, of
Tenant's election to contest same by arbitration with JAMS in Orange
County, California. Pending the outcome of such arbitration proceedings,
Tenant shall make timely payment of all rent due under this Lease based
upon the Commencement Date set forth in the aforesaid notice from Landlord.
G. Landlord shall permit Tenant and its agents to enter the Premises prior to
the Commencement Date of the Lease in order that Tenant may perform any
work to be performed by Tenant hereunder through its own contractors,
subject to Landlord's prior written approval, and in a manner and upon
terms and conditions and at times satisfactory to Landlord's
representative. The foregoing license to enter the Premises prior to the
Commencement Date is, however, conditioned upon Tenant's contractors and
their subcontractors and employees working in harmony and not interfering
with the work being performed by Landlord. If at any time
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that entry shall cause disharmony or interfere with the work being
performed by Landlord, this license may be withdrawn by Landlord upon
twenty-four (24) hours written notice to Tenant. That license is further
conditioned upon the compliance by Tenant's contractors with all
requirements imposed by Landlord on third party contractors, including
without limitation the maintenance by Tenant and its contractors and
subcontractors of workers' compensation and public liability and property
damage insurance in amounts and with companies and on forms satisfactory to
Landlord, with certificates of such insurance being furnished to Landlord
prior to proceeding with any such entry. The entry shall be deemed to be
under all of the provisions of the Lease except as to the covenants to pay
rent. Landlord shall not be liable in any way for any injury, loss or
damage which may occur to any such work being performed by Tenant, the same
being solely at Tenant's risk. In no event shall the failure of Tenant's
contractors to complete any work in the Premises extend the Commencement
Date of this Lease beyond the date that Landlord has completed its Tenant
Improvement work and tendered the Premises to Tenant.
H. Tenant hereby designates Xxxxxxx Xxxxx, Telephone No. (000) 000-0000, as
its representative, agent and attorney-in-fact for the purpose of receiving
notices, approving submittals and issuing requests for Changes, and
Landlord shall be entitled to rely upon authorizations and directives of
such person(s) as if given directly by Tenant. Tenant may amend the
designation of its construction representative(s) at any time upon delivery
of written notice to Landlord.
II. COST OF TENANT IMPROVEMENTS
---------------------------
A. Landlord shall complete, or cause to be completed, the Tenant Improvements,
at the construction cost shown in the Final Cost Estimate (subject to the
provisions of this Work Letter), in accordance with final Working Drawings
and Specifications approved by both Landlord and Tenant. Landlord shall
pay towards the final construction costs ("Completion Cost") as incurred a
maximum of One Million Five Hundred Thirty Two Thousand Five Hundred
Dollars ($1,532,500.00) ("Landlord's Contribution"), based on $25.00 per
usable square foot of the Premises, and Tenant shall be fully responsible
for the remainder ("Tenant's Contribution"). Landlord's Contribution shall
only be used for construction and installation of Standards incorporated
into a Preliminary Plan approved by Landlord and for other costs outlined
below. Tenant shall have no right to receive any credit, refund or
allowance of any kind for any unused portion of the Landlord's Contribution
nor shall Tenant be allowed to make revisions to an approved Preliminary
Plan, Working Drawings and Specifications or request a Change in an effort
to apply any unused portion of Landlord's Contribution.
B. The Completion Cost shall include all costs of Landlord in completing the
Tenant Improvements in accordance with the approved Working Drawings and
Specifications, including but not limited to the following: (i) payments
made to architects, engineers, contractors, subcontractors and other third
party consultants in the performance of the work, (ii) salaries and fringe
benefits of persons, if any, in the direct employ of Landlord performing
any part of the construction work, (iii) permit fees and other sums paid to
governmental agencies, and (iv) costs of all materials incorporated into
the work or used in connection with the work. The Completion Cost shall
also include an administrative/ supervision fee to be paid to Landlord or
to Landlord's management agent in the amount of five percent (5%) of all
such costs.
C. Prior to start of construction of the Tenant Improvements, Tenant shall pay
to Landlord in full the amount of the Tenant's Contribution set forth in
the Final Cost Estimate. If the actual Completion Cost of the Tenant
Improvements is less than the Final Cost Estimate, any portion of the
Tenant's Contribution paid by Tenant but not expended towards the
Completion Cost shall be refunded to Tenant in the form of a check payable
to Tenant. If the actual Completion Cost is greater than the Final Cost
Estimate because of modifications or extras not reflected on the approved
Working Drawings and Specifications which are requested by Tenant, or
because of Tenant Delays, then Tenant shall be responsible for all such
additional costs. The balance of any sums not otherwise paid by Tenant
shall be due and payable on or before the Commencement Date of this Lease.
If Tenant defaults in the payment of any sums due under this Work Letter,
Landlord shall (in addition to all other remedies) have the same rights as
in the case of Tenant's failure to pay rent under the Lease.
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[IRVINE TECHNOLOGY CENTER]
[OVERALL SITE PLAN]
EXHIBIT Y
[IRVINE TECHNOGHY CENTER]
[INDUSTRIAL PARK]
EXHIBIT Y-1
