EXHIBIT 10.21
[CB COMMERCIAL LOGO] OFFICE BUILDING LEASE
CB COMMERCIAL REAL ESTATE GROUP, INC.
BROKERAGE AND MANAGEMENT
LICENSED REAL ESTATE BROKER
TABLE OF CONTENTS
PAGE
Article 1 LEASE OF PREMISES............................................ 1
Article 2 DEFINITIONS.................................................. 1
Article 3 EXHIBITS AND ADDENDA......................................... 2
Article 4 DELIVERY OF POSSESSION....................................... 2
Article 5 RENT......................................................... 2
Article 6 INTEREST AND LATE CHARGES.................................... 4
Article 7 SECURITY DEPOSIT............................................. 4
Article 8 TENANT'S USE OF THE PREMISES................................. 4
Article 9 SERVICES AND UTILITIES....................................... 5
Article 10 CONDITION OF THE PREMISES.................................... 5
Article 11 CONSTRUCTION, REPAIRS AND MAINTENANCE........................ 5
Article 12 ALTERATIONS AND ADDITIONS.................................... 6
Article 13 LEASEHOLD IMPROVEMENTS; TENANT'S PROPERTY.................... 6
Article 14 RULES AND REGULATIONS........................................ 7
Article 15 CERTAIN RIGHTS RESERVED BY LANDLORD.......................... 7
Article 16 ASSIGNMENT AND SUBLETTING.................................... 7
Article 17 HOLDING OVER................................................. 8
Article 18 SURRENDER OF PREMISES........................................ 8
Article 19 DESTRUCTION OR DAMAGE........................................ 8
Article 20 EMINENT DOMAIN............................................... 8
Article 21 INDEMNIFICATION.............................................. 9
Article 22 TENANT'S INSURANCE........................................... 9
Article 23 WAIVER OF SUBROGATION........................................ 10
Article 24 SUBORDINATION AND ATTORNMENT................................. 10
Article 25 TENANT ESTOPPEL CERTIFICATES................................. 10
Article 26 TRANSFER OF LANDLORD'S INTEREST.............................. 10
Article 27 DEFAULT...................................................... 10
Article 28 BROKERAGE FEES............................................... 11
Article 29 NOTICES...................................................... 11
Article 30 GOVERNMENT ENERGY OR UTILITY CONTROLS........................ 11
Article 31 RELOCATION OF PREMISES....................................... 11
Article 32 QUIET ENJOYMENT.............................................. 12
Article 33 OBSERVANCE OF LAW............................................ 12
Article 34 FORCE MAJEURE................................................ 12
Article 35 CURING TENANT'S DEFAULTS..................................... 12
Article 36 SIGN CONTROL................................................. 12
Article 37 MISCELLANEOUS................................................ 12
[LOGO OF CB COMMERCIAL] OFFICE BUILDING LEASE
This Lease between CROSSTOWN BUILDING PARTNERS
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a CALIFORNIA LIMITED PARTNERSHIP
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("Landlord"), and THE MONEY STORE, INC.
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a NEW JERSEY CORPORATION , ("Tenant"), is
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dated as of January 1 , 1995.
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1. LEASE OF PREMISES.
In consideration of the Rent (as defined at Section 5.4) and the provisions of
this Lease, Landlord leases to Tenant and Tenant leases from Landlord the
Premises shown by diagonal lines on the floor plan attached hereto as Exhibit
"A," and further described at Section 21. The Premises are located within the
Building and Project described in Section 2m. Tenant shall have the
non-exclusive right (unless otherwise provided herein) in connection with
Landlord, other tenants, subtenants and invitees, to use of the Common Areas (as
defined at Section 2e).
2. DEFINITIONS
As used in this Lease, the following terms shall have the following meanings:
a. Base Rent (initial): $ (SEE ADDENDUM) per year.
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b. Base Year: The calendar year of 1995 .
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c. Broker(s)
▇▇▇▇▇▇▇▇'s: None .
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Tenant's: None .
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In the event that CB Commercial Real Estate Group, Inc. represents both Landlord
and Tenant, Landlord and ▇▇▇▇▇▇ hereby confirm that they were timely advised of
the dual representation and that they consent to the same, and that they do not
expect said broker to disclose to either of them the confidential information of
the other party.
d. Commencement Date: January 1, 1995 ,
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e. Common Areas: the building lobbies, common corridors and hallways,
restrooms, garage and parking areas, stairways, elevators and other
generally understood public or common areas. Landlord shall have the right
to regulate or restrict the use of the Common Areas.
f. Expense Stop: (fill in if applicable): $ None .
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g. Expiration Date: December 31, 1997 , unless otherwise
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sooner terminated in accordance with the provisions of this Lease.
h. Index (Section 5.2): United States Department of Labor, Bureau of Labor
Statistics Consumer Price Index for All Urban Consumers, N/A Average,
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Subgroup "All Items" (1967 = 100).
i. Landlord's Mailing Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇▇
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Hills, CA 95762
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.
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Tenant's Mailing Address: To be supplied to Landlord. The Money Store,
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3301 "▇" ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. ATTENTION:
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National Leasing Manager .
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j. Monthly installments of Base Rent (initial): $ (SEE ADDENDUM) per month.
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k. Parking: Tenant shall be permitted, upon payment of the then prevailing
monthly rate (as set by Landlord from time to time) to park nine (9)
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cars on a non-exclusive basis in the area(s) designated by Landlord for
parking. Tenant shall abide by any and all parking regulations and rules
established from time to time by Landlord or Landlord's parking operator.
Landlord reserves the right to separately charge ▇▇▇▇▇▇'s guests and
visitors for parking.
l. Premises: that portion of the Building containing approximately 6,181
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square feet of Rentable Area, shown by diagonal lines on Exhibit "A,"
located on the first (1st) floor of the Building and known as
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Suite 100 .
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m. Project: the building of which the Premises are a part (the "Building") and
any other buildings or improvements on the real property (the "Property")
located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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and further described at Exhibit "B." The
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Project is known as The Crosstown Building .
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n. Rentable Area: as to both the Premises and the Project, the respective
measurements of floor area as may from time to time be subject to lease by
▇▇▇▇▇▇ and all tenants of the Project, respectively, as determined by
Landlord and applied on a consistent basis throughout the Project.
(1)
o. Security Deposit (Section 7): $ N/A
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p. State: the State of California
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q. Tenant's First Adjustment Date (Section 5.2): the first day of the calendar
month following the Commencement Date plus N/A months.
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r. Tenant's Proportionate Share: 25.22%. Such share is a fraction, the
numerator of which is the Rentable Area of the Premises, and the
denominator of which is the Rentable Area of the Project, as determined by
Landlord from time to time. The Project consists of one building(s)
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containing a total Rentable Area of approx. 24,500 square feet.
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s. Tenant's Use Clause (Article 8): storage, warehouse, distribution and a
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maximum of 50% of the space for standard office use
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t. Term: the period commencing on the Commencement Date and expiring at
midnight on the Expiration Date.
3. EXHIBITS AND ADDENDA.
The exhibits and addenda listed below (unless lined out) are incorporated by
reference in this Lease:
a. Exhibit "A"-Legal description of Landlord's Property.
b.
c.
d. Exhibit "D"-Rules and Regulations.
e.
f. Addenda:
The Addendum attached hereto is made a part of this lease by this reference
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as though set forth herein in full.
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4. DELIVERY OF POSSESSION.
If for any reason Landlord does not deliver possession of the Premises to Tenant
on the Commencement Date, Landlord shall not be subject to any liability for
such failure, the Expiration Date shall not change and the validity of this
Lease shall not be impaired, but Rent shall be abated until delivery of
possession. "Delivery of possession" shall be deemed to occur on the date
Landlord completes Landlord's Work as defined in Exhibit "C." If Landlord
permits Tenant to enter into possession of the Premises before the Commencement
Date, such possession shall be subject to the provisions of this Lease,
including, without limitation, the payment of Rent.
5. RENT.
5.1 Payment of Base Rent. ▇▇▇▇▇▇ agrees to pay the Base Rent for the Premises.
Monthly Installments of Base Rent shall be payable in advance on the first day
of each calendar month of the Term. If the Term begins (or ends) on other than
the first (or last) day of a calendar month, the Base Rent for the partial month
shall be prorated on a per diem basis. Tenant shall pay Landlord the first
Monthly Installment of Base Rent when Tenant executes the Lease.
5.2 Adjusted Base Rent. (See Addendum)
a. The Base Rent (and the corresponding Monthly Installments of Base Rent)
set forth at Section 2a shall be adjusted annually (the "Adjustment Date"),
commencing on Tenant's First Adjustment Date. Adjustments, if any, shall be
based upon increases (if any) in the Index. The Index in publication three
(3) months before the Commencement Date shall be the "Base Index." The
index in publication three (3) months before each Adjustment Date shall be
the "Comparison Index." As of each Adjustment Date, the Base Rent payable
during the ensuing twelve-month period shall be determined by increasing
the initial Base Rent by a percentage equal to the percentage increase, if
any, in the Comparison Index over the Base Index. If the Comparison Index
for any Adjustment Date is equal to or less than the Comparison Index for
the preceding Adjustment Date (or the Base Index, in the case of First
Adjustment Date), the Base Rent for the ensuing twelve-month period shall
remain the amount of Base Rent payable during the preceding twelve-month
period. When the Base Rent payable as of each Adjustment Date is
determined, Landlord shall promptly give Tenant written notice of such
adjusted Base Rent and the manner in which it was computed. The Base Rent
as so adjusted from time to time shall be the "Base Rent" for all purposes
under this Lease.
b. If at any Adjustment Date the Index no longer exists in the form
described in this Lease, Landlord may substitute any substantially
equivalent official index published by the Bureau of Labor Statistics or
its successor. Landlord shall use any appropriate conversion factors to
accomplish such substitution. The substitute index shall then become the
"Index" hereunder.
5.3 Project Operating Costs.
a. In order that the Rent payable during the Term reflect any increase in
Project Operating Costs, ▇▇▇▇▇▇ agrees to pay to Landlord as Rent,
▇▇▇▇▇▇'s Proportionate Share of all increases in costs, expenses and
obligations attributable to the Project and its operation, all as provided
below.
b. If, during any calendar year during the Term, Project Operating Costs
exceed the Project Operating Costs for the Base Year, Tenant shall pay to
Landlord, in addition to the Base Rent and all other payments due under
this Lease, an amount equal to Tenant's Proportionate Share of such excess
Project Operating Costs in accordance with the provisions of this Section
5.3b.
(2)
(1) The term "Project Operating Costs" shall include all those items described
in the following subparagraphs (a) and (b.)
(a) All taxes, assessments, water and sewer charges and other similar
governmental charges levied on or attributable to the Building or Project
or their operation, including without limitation, (i) real property taxes
or assessments levied or assessed against the Building or Project, (ii)
assessments or charges levied or assessed against the Building or Project
by any redevelopment agency, (iii) any tax measured by gross rentals
received from the leasing of the Premises, Building or Project, excluding
any net income, franchise, capital stock, estate or inheritance taxes
imposed by the State or federal government or their agencies, branches or
departments; provided that if at any time during the Term any governmental
entity levies, assesses or imposes on Landlord any (1) general or special,
ad valorem or specific, excise, capital levy or other tax, assessment, levy
or charge directly on the Rent received under this Lease or on the rent
received under any other leases of space in the Building or Project, or (2)
any license fee, excise or franchise tax, assessment, levy or charge
measured by or based, in whole or in part, upon such rent, or (3) any
transfer, transaction, or similar tax, assessment, levy or charge based
directly or indirectly upon the transaction represented by this Lease or
such other leases, or (4) any occupancy, use per capita or other tax,
assessment, levy or charge based directly or indirectly upon the use or
occupancy of the Premises or other premises within the Building or Project,
then any such taxes, assessments, levies and charges shall be deemed to be
included in the term Project Operating Costs. If at any time during the
Term the assessed valuation of, or taxes on, the Project are not based on a
completed Project having at least eighty-five percent (85%) of the Rentable
Area occupied, then the "taxes" component of Project Operating Costs shall
be adjusted by Landlord to reasonably approximate the taxes which would
have been payable if the Project were completed and at least eighty-five
percent (85%) occupied.
(b) Operating costs incurred by Landlord in maintaining and operating the
Building and Project, including without limitation the following: costs of
(1) utilities; (2) supplies; (3) insurance (including public liability,
property damage, earthquake and fire and extended coverage insurance for
the full replacement cost of the Building and Project as required by
Landlord of its lenders for the Project; (4) services of independent
contractors; (5) compensation (including employment taxes and fringe
benefits) of all persons who perform duties connected with the operation,
maintenance, repair or overhaul of the Building or Project, and equipment,
improvements and facilities located within the Project, including without
limitation engineers, janitors, painters, floor waxers, window washers,
security and parking personnel and gardeners (but excluding persons
performing services not uniformly available to or performed for
substantially all Building or Project tenants); (6) operation and
maintenance of a room for delivery and distribution of mail to tenants of
the Building or Project as required by the U.S. Postal Service (including,
without limitation, an amount equal to the fair market rental value of the
mail room premises); (7) management of the Building or Project, whether
managed by Landlord or an independent contractor (including, without
limitation, an amount equal to the fair market value of any on-site
manager's office); (8) rental expenses for (or a reasonable depreciation
allowance on) personal property used in the maintenance, operation or
repair of the Building or Project; (9) costs, expenditures or charges
(whether capitalized or not) required by any governmental or quasi-
governmental authority; (10) amortization of capital expenses (including
financing costs) (i) required by a governmental entity for energy
conservation or life safety purposes, or (ii) made by Landlord to reduce
Project Operating Costs; and (11) any other costs or expenses incurred by
Landlord under this Lease and not otherwise reimbursed by tenants of the
Project. If at any time during the Term, less than eighty-five percent
(85%) of the Rentable Area of the Project is occupied, the "operating
costs" component of Project Operating Costs shall be adjusted by Landlord
to reasonably approximate the operating costs which would have been
incurred if the Project had been at least eighty-five percent (85%)
occupied.
(2) Tenant's Proportionate Share of Project Operating Costs shall be payable by
Tenant to Landlord as follows:
(a) Beginning with the calendar year following the Base Year and for each
calendar year thereafter ("Comparison Year"). Tenant shall pay Landlord an
amount equal to ▇▇▇▇▇▇'s Proportionate Share of the Project Operating Costs
incurred by Landlord in the Comparison Year which exceeds the total amount
of Project Operating Costs payable by Landlord for the Base Year. This
excess is referred to as the "Excess Expenses."
(b) To provide for current payments of Excess Expenses, Tenant shall, at
Landlord's request, pay as additional rent during each Comparison Year, an
amount equal to Tenant's Proportionate Share of the Excess Expenses payable
during such Comparison Year, as estimated by Landlord from time to time.
Such payments shall be made in monthly installments, commencing on the
first day of the month following the month in which Landlord notifies
Tenant of the amount it is to pay hereunder and continuing until the first
day of the month following the month in which Landlord gives Tenant a new
notice of estimated Excess Expenses. It is the intention hereunder to
estimate from time to time the amount of the Excess Expenses for each
Comparison Year and Tenant's Proportionate Share thereof, and then to make
an adjustment in the following year based on the actual Excess Expenses
incurred for that Comparison Year.
(c) On or before April 1 of each Comparison Year after the first Comparison
Year (or as soon thereafter as is practical), Landlord shall deliver to
Tenant a statement setting forth Tenant's Proportionate Share of the Excess
Expenses for the preceding Comparison Year. If ▇▇▇▇▇▇'s Proportionate Share
of the actual Excess Expenses for the previous Comparison Year exceeds the
total of the estimated monthly payments made by Tenant for such year,
Tenant shall pay Landlord the amount of the deficiency within ten (10) days
of the receipt of the statement. If such total exceeds Tenant's
Proportionate Share of the actual Excess Expenses for such Comparison Year,
then Landlord shall credit against ▇▇▇▇▇▇'s next ensuing monthly
installment(s) of additional rent an amount equal to the difference until
the credit is exhausted. If a credit is due from Landlord on the Expiration
Date, Landlord shall pay Tenant the amount of the credit. The obligations
of Tenant and Landlord to make payments required under this Section 5.3
shall survive the Expiration Date.
(d) Tenant's Proportionate Share of Excess Expenses in any Comparison Year
having less than 365 days shall be appropriately prorated.
(e) If any dispute arises as to the amount of any additional rent due
hereunder, Tenant shall have the right after reasonable notice and at
reasonable times to inspect Landlord's accounting records at Landlord's
accounting office and, if after such inspection Tenant still disputes the
amount of additional rent owed, a certification as to the proper amount
shall be made by Landlord's certified public accountant, which
certification shall be final and conclusive. ▇▇▇▇▇▇ agrees to pay the cost
of such certification unless it is determined that ▇▇▇▇▇▇▇▇'s original
statement overstated Project Operating Costs by more than five percent (5).
(3)
(f) If this Lease sets forth an Expense Stop at Section 21, then during the
Term Tenant shall be liable for Tenant's Proportionate Share of any actual
Project Operating Costs which exceed the amount of the Expense Stop. Tenant
shall make current payments of such excess costs during the Term in the
same manner as is provided for payment of Excess Expenses under the
applicable provisions of Section 5.3b(2)(b) and (c) above.
5.4 Definition of Rent. All costs and expenses which ▇▇▇▇▇▇ assumes or agrees
to pay to Landlord under this Lease shall be deemed additional rent (which,
together with the Base Rent is sometimes referred to as the "Rent"). The Rent
shall be paid to the Building manager (or other person) and at such place, as
Landlord may from time to time designate in writing, without any prior demand
therefor and without deduction or offset, in lawful money of the United States
of America.
5.5 Rent Control. If the amount of Rent or any other payment due under this
Lease violates the terms of any governmental restrictions on such Rent or
payment, then the Rent or payment due during the period of such restrictions
shall be the maximum amount allowable under those restrictions. Upon termination
of the restrictions, Landlord shall, to the extent it is legally permitted,
recover from Tenant the difference between the amounts received during the
period of the restrictions and the amounts Landlord would have received had
there been no restrictions.
5.6 Taxes Payable by ▇▇▇▇▇▇. In addition to the Rent and any other charges to be
paid by Tenant hereunder, Tenant shall reimburse Landlord upon demand for any
and all taxes payable by Landlord (other than net income taxes) which are not
otherwise reimbursable under this Lease, whether or not now customary or within
the contemplation of the parties, where such taxes are upon, measured by or
reasonably attributable to (a) the cost or value of Tenant's equipment,
furniture, fixtures and other personal property located in the Premises, or the
cost or value of any leasehold improvements made in or to the Premises by or for
Tenant, other than Building Standard Work made by Landlord, regardless of
whether title to such improvements is held by Tenant or Landlord; (b) the gross
or net Rent payable under this Lease, including, without limitation, any rental
or gross receipts tax levied by any taxing authority with respect to the receipt
of the Rent hereunder; (c) the possession, leasing, operation, management,
maintenance, alteration, repair, use or occupancy by Tenant of the Premises or
any portion thereof; or (d) this transaction or any document to which Tenant is
a party creating or transferring an interest or an estate in the Premises. If it
becomes unlawful for Tenant to reimburse Landlord for any costs as required
under this Lease, the Base Rent shall be revised to net Landlord the same net
Rent after imposition of any tax or other charge upon Landlord as would have
been payable to Landlord but for the reimbursement being unlawful.
6. INTEREST AND LATE CHARGES.
If Tenant fails to pay when due any Rent or other amounts or charges which
Tenant is obligated to pay under the terms of this Lease, the unpaid amounts
shall bear interest at the maximum rate then allowed by law. Tenant acknowledges
that the late payment of any Monthly Installment of Base Rent will cause
Landlord to lose the use of that money and incur costs and expenses not
contemplated under this Lease, including without limitation, administrative and
collection costs and processing and accounting expenses, the exact amount of
which is extremely difficult to ascertain. Therefore, in addition to interest,
if any such installment is not received by Landlord within ten (10) days from
the date it is due, Tenant shall pay Landlord a late charge equal to ten percent
(10%) of such installment. Landlord and Tenant agree that this late charge
represents a reasonable estimate of such costs and expenses and is fair
compensation to Landlord for the loss suffered from such nonpayment by ▇▇▇▇▇▇.
Acceptance of any interest or late charge shall not constitute a waiver of
Tenant's default with respect to such nonpayment by Tenant nor prevent Landlord
from exercising any other rights or remedies available to Landlord under this
Lease.
7. SECURITY DEPOSIT.
▇▇▇▇▇▇ agrees to deposit with Landlord the Security Deposit set forth at Section
2.0 upon execution of this Lease, as security for ▇▇▇▇▇▇'s faithful performance
of its obligations under this Lease. Landlord and Tenant agree that the Security
Deposit may be commingled with funds of Landlord and Landlord shall have no
obligation or liability for payment of interest on such deposit. Tenant shall
not mortgage, assign, transfer or encumber the Security Deposit without the
prior written consent of Landlord and any attempt by Tenant to do so shall be
void, without force or effect and shall not be binding upon Landlord.
If Tenant fails to pay any Rent or other amount when due and payable under this
Lease, or fails to perform any of the terms hereof, Landlord may appropriate and
apply or use all or any portion of the Security Deposit for Rent payments or any
other amount then due and unpaid, for payment of any amount for which Landlord
has become obligated as a result of Tenant's default or breach, and for any loss
or damage sustained by Landlord as a result of Tenant's default or breach, and
Landlord may so apply or use this deposit without prejudice to any other remedy
Landlord may have by reason of Tenant's default or breach. If Landlord so uses
any of the Security Deposit, Tenant shall, within ten (10) days after written
demand therefor, restore the Security Deposit to the full amount originally
deposited; Tenant's failure to do so shall constitute an act of default
hereunder and Landlord shall have the right to exercise any remedy provided for
at Article 27 hereof. Within fifteen (15) days after the Term (or any extension
thereof) has expired or Tenant has vacated the Premises, whichever shall last
occur, and provided Tenant is not then in default on any of its obligations
hereunder, Landlord shall return the Security Deposit to Tenant, or, if Tenant
has assigned its interest under this Lease, to the last assignee of Tenant. If
Landlord sells its interest in the Premises, Landlord may deliver this deposit
to the purchaser of Landlord's interest and thereupon be relieved of any further
liability or obligation with respect to the Security Deposit.
8. TENANT'S USE OF THE PREMISES.
Tenant shall use the Premises solely for the purposes set forth in Tenant's Use
Clause. Tenant shall not use or occupy the Premises in violation of law or any
covenant, condition or restriction affecting the Building or Project or the
certificate of occupancy issued for the Building or Project, and shall, upon
notice from Landlord, immediately discontinue any use of the Premises which is
declared by any governmental authority having jurisdiction to be a violation of
law or the certificate of occupancy. To the extent Landlord would not otherwise
owe such duty or have a duty imposed upon it, Tenant, at Tenant's own cost and
expense, shall comply with all laws, ordinances, regulations, rules and/or any
directions of any governmental agencies or authorities having jurisdiction which
shall, by reason of the nature of Tenant's use or occupancy of the Premises,
impose any duty upon Tenant or Landlord with respect to the Premises or its use
or occupation. A judgment of any court of competent jurisdiction or the
conclusive admission by Tenant in any action or proceeding against Tenant that
Tenant has violated any such laws, ordinances, regulations, rules and/or
directions in the use of the Premises shall be deemed to be a conclusive
determination of that fact as between Landlord and Tenant. Tenant shall not do
or permit to be done anything which will invalidate or increase the cost of any
fire, extended coverage or other insurance policy covering the Building or
Project and/or property located therein, and shall comply with all rules, orders
regulations, requirements and recommendations of the Insurance Services Office
or any other organization performing a similar function. Tenant shall
(4)
promptly upon demand reimburse Landlord for any additional premium charged for
such policy by reason of ▇▇▇▇▇▇'s failure to comply with the provisions of this
Article. Tenant shall not do or permit anything to be done in or about the
Premises which will in any way obstruct or interfere with the rights of other
tenants or occupants of the Building or Project, or injure or annoy them, or use
or allow the Premises to be used for any improper, immoral, unlawful or
objectionable purpose, nor shall Tenant cause, maintain or permit any nuisance
in, on or about the Premises. Tenant shall not commit or suffer to be committed
any waste in or upon the Premises.
9. SERVICES AND UTILITIES.
Provided that Tenant is not in default hereunder, ▇▇▇▇▇▇▇▇ agrees to furnish to
the Premises during generally recognized business days, and during hours
determined by Landlord in its sole discretion, and subject to the Rules and
Regulations of the Building or Project, electricity for normal desk top office
equipment and normal copying equipment, and heating, ventilation and air
conditioning ("HVAC") as required in Landlord's judgment for the comfortable use
and occupancy of the Premises. If Tenant desires HVAC at any other time,
Landlord shall use reasonable efforts to furnish such service upon reasonable
notice from Tenant and Tenant shall pay Landlord's charges therefor on demand.
Landlord shall also maintain and keep lighted the common stairs, common entries
and restrooms in the Building. Except with respect to the negligence or willful
acts of Landlord, its agents or employees, Landlord shall not be in default
hereunder or be liable for any damages directly or indirectly resulting from,
nor shall the Rent be abated by reason of (i) the installation, use or
interruption of use of any equipment in connection with the furnishing of any of
the foregoing services, (ii) failure to furnish or delay in furnishing any such
services where such failure or delay is caused by accident or any condition or
event beyond the reasonable control of Landlord, or by the making of necessary
repairs or improvements to the Premises, Building or Project, or (iii) the
limitation, curtailment or rationing of, or restrictions on, use of water,
electricity, gas or any other form of energy serving the Premises, Building or
Project. Except with respect to the negligence or willful acts of Landlord, its
agents or employees, Landlord shall not be liable under any circumstances for a
loss of or injury to property or business, however occurring, through or in
connection with or incidental to failure to furnish any such services. If Tenant
uses heat generating machines or equipment in the Premises which affect the
temperature otherwise maintained by the HVAC system, Landlord reserves the right
to install supplementary air conditioning units in the Premises and the cost
thereof, including the cost of installation, operation and maintenance thereof,
shall be paid by Tenant to Landlord upon demand by Landlord.
Tenant shall not, without the written consent of Landlord, which consent shall
not be unreasonably withheld use any apparatus or device in the Premises,
including without limitation, electronic data processing machines, punch card
machines or machines using in excess of 120 volts, which consumes more
electricity than is usually furnished or supplied for the use of premises as
general office space, as determined by Landlord. Tenant shall not connect any
apparatus with electric current except through existing electrical outlets in
the Premises. Tenant shall not consume water or electric current in excess of
that usually furnished or supplied for the use of premises as general office
space (as determined by Landlord), without first procuring the written consent
of Landlord, which Landlord may not unreasonably refuse, and in the event of
consent, Landlord may have installed a water meter or electrical current meter
in the Premises to measure the amount of water or electric current consumed. The
cost of any such meter and of its installation, maintenance and repair shall be
paid for by the Tenant and ▇▇▇▇▇▇ agrees to pay to Landlord promptly upon demand
for all such water and electric current consumed as shown by said meters, at the
rates charged for such services by the local public utility plus any additional
expense incurred in keeping account of the water and electric current so
consumed. If a separate meter is not installed, the excess cost for such water
and electric current shall be established by an estimate made by a utility
company or electrical engineer hired by Landlord and ▇▇▇▇▇▇ at Tenant's expense.
Nothing contained in this Article shall restrict Landlord's right to require at
any time separate metering of utilities furnished to the Premises. In the event
utilities are separately metered, Tenant shall pay promptly upon demand for all
utilities consumed at utility rates charged by the local public utility plus any
reasonable additional expense incurred by Landlord in keeping account of the
utilities so consumed. Tenant shall be responsible for the maintenance and
repair of any such meters at its sole cost. If the necessity of such meter
installation was solely caused by Tenants non-typical use of the utilities.
Landlord shall furnish elevator service, lighting replacement for building
standard lights, restroom supplies, window washing and janitor services in a
manner that such services are customarily furnished to comparable office
buildings in the area.
10. CONDITION OF THE PREMISES.
Except for latent defects, ▇▇▇▇▇▇'s taking possession of the Premises shall be
deemed conclusive evidence that as of the date of taking possession the Premises
are in good order and satisfactory condition, except for such matters as to
which ▇▇▇▇▇▇ gave Landlord notice on or before the Commencement Date. No promise
of Landlord to alter, remodel, repair or improve the Premises, the Building or
the Project and no representation, express or implied, respecting any matter or
thing relating to the Premises, Building, Project or this Lease (including,
without limitation, the condition of the Premises, the Building or the Project)
have been made to Tenant by Landlord or its Broker or Sales Agent, other than as
may be contained herein or in a separate exhibit or addendum signed by Landlord
and Tenant.
11. CONSTRUCTION, REPAIRS AND MAINTENANCE.
a. Landlord's Obligations. Landlord shall perform Landlord's Work to the
Premises as described in Exhibit "C". Landlord shall maintain in good order,
condition and repair the Building and all other portions of the Premises not
the obligation of Tenant or of any other tenant in the Building.
b. Tenant's Obligations.
(1) Tenant shall perform Tenant's Work to the Premises as described in
Exhibit "C".
(2) Tenant at Tenant's sole expense shall, except for services furnished
by Landlord pursuant to Article 9 hereof, maintain the Premises in good
order, condition and repair, including the interior surfaces of the
ceilings, walls and floors, all doors, all interior windows, all
plumbing, pipes and fixtures, electrical wiring, switches and fixtures,
Building Standard furnishings and special items and equipment installed
by or at the expense of Tenant.
(3) Tenant shall be responsible for all repairs and alterations in and to
the Premises, Building and Project and the facilities and systems
thereof, the need for which arises out of (i) Tenant's use or occupancy
of the Premises, (ii) the installation, removal, use or operation of
Tenant's Property (as defined in Article 13) in the Premises, (iii) the
moving of Tenant's Property into or out of the Building, or (iv) the act,
omission, misuse or negligence of Tenant, its agents, contractors,
employees or invitees.
(5)
(4) If Tenant fails to maintain the Premises in good order, condition
and repair, Landlord shall give Tenant notice to do such acts as are
reasonably required to so maintain the Premises. If Tenant fails to
promptly commence such work and diligently prosecute it to
completion, then Landlord shall have the right to do such acts and
expend such funds at the expense of Tenant as are reasonably required
to perform such work. Any amount so expended by Landlord shall be paid
by Tenant promptly after demand with interest at the prime commercial
rate then being charged by Bank of America NT & SA plus two percent
(2%) per annum, from the date of such work, but not to exceed the
maximum rate then allowed by law. Landlord shall have no liability to
Tenant for any damage, inconvenience, or interference with the use of
the Premises by ▇▇▇▇▇▇ as a result of performing any such work.
c. Compliance with Law. Landlord and Tenant shall each do all acts
required to comply with all applicable laws, ordinances, and rules of any
public authority relating to their respective maintenance obligations as
set forth herein.
d. Waiver by ▇▇▇▇▇▇. Tenant expressly waives the benefits of any statute
now or hereafter in effect which would otherwise afford the Tenant the
right to make repairs at Landlord's expense or to terminate this Lease
because of Landlord's failure to keep the Premises in good order, condition
and repair.
e. Load and Equipment Limits. Tenant shall not place a load upon any
floor of the Premises which exceeds the load per square foot which such
floor was designed to carry, as determined by Landlord or Landlord's
structural engineer. The cost of any such determination made by ▇▇▇▇▇▇▇▇'s
structural engineer shall be paid for by Tenant upon demand. Tenant shall
not install business machines or mechanical equipment which cause noise or
vibration to such a degree as to be objectionable to Landlord or other
Building tenants.
f. Except as otherwise expressly provided in this Lease, Landlord shall
have no liability to Tenant nor shall Tenant's obligations under this Lease
be reduced or abated in any manner whatsoever by reason of any
inconvenience, annoyance, interruption or injury to business arising from
Landlord's making any repairs or changes which Landlord is required or
permitted by this Lease or by any other tenant's lease or required by law
to make in or to any portion of the Project, Building or the Premises.
Landlord shall nevertheless use reasonable efforts to minimize any
interference with ▇▇▇▇▇▇'s business in the Premises.
g. Tenant shall give Landlord prompt notice of any damage to or defective
condition in any part or appurtenance of the Building's mechanical,
electrical, plumbing, HVAC or other systems serving, located in, or passing
through the Premises.
h. Upon the expiration or earlier termination of this Lease, Tenant shall
return the Premises to Landlord clean and in the same condition as on the
date Tenant took possession, except for normal wear and tear. Any damage to
the Premises, including any structural damage, resulting from the Tenant's
use or from the removal of Tenant's fixtures, furnishings and equipment
pursuant to Section 13b shall be repaired by Tenant at Tenant's expense.
12. ALTERATIONS AND ADDITIONS.
a. Tenant shall not make any additions, alterations or improvements to
the Premises without obtaining the prior written consent of Landlord which
consent shall not be unreasonably withheld. ▇▇▇▇▇▇▇▇'s consent may be
conditioned on ▇▇▇▇▇▇'s removing any such additions, alterations or
improvements upon the expiration of the Term and restoring the Premises
to the same condition as on the date Tenant took possession. All work with
respect to any addition, alteration or improvement shall be done in a good
and workmanlike manner by properly qualified and licensed personnel
approved by Landlord, and such work shall be diligently prosecuted to
completion.
b. Tenant shall pay the costs of any work done on the Premises pursuant
to Section 12a, and shall keep the Premises, Building and Project free and
clear of liens of any kind. Tenant shall indemnify, defend against and
keep Landlord free and harmless from all liability, loss, damage, costs,
attorneys' fees and any other expense incurred on account of claims by
any person performing work or furnishing materials or supplies for Tenant
or any person claiming under Tenant.
Tenant shall keep Tenant's leasehold interest, and any additions or
improvements which are or become the property of Landlord under this Lease,
free and clear of all attachment or judgment liens. Before the actual
commencement of any work for which a claim or lien may be filed. Tenant
shall give Landlord notice of the intended commencement date a sufficient
time before that date to enable Landlord to post notices of non-
responsibility or any other notices which Landlord deems necessary for the
proper protection of Landlord's interest in the Premises, Building or the
Project, and Landlord shall have the right to enter the Premises and post
such notices at any reasonable time.
c. Landlord may require, at ▇▇▇▇▇▇▇▇'s sole option, that Tenant provide
to Landlord, at Tenant's expense, a lien and completion bond in an amount
equal to at least one and one-half (1 1/2) times the total estimated cost
of any additions, alterations or improvements to be made in or to the
Premises, to protect Landlord against any liability for mechanic's and
materialmen's liens and to insure timely completion of the work. Nothing
contained in this Section 12c shall relieve Tenant of its obligation under
Section 12b to keep the Premises, Building and Project free of all liens.
d. Unless their removal is required by Landlord as provided in Section
12a, all additions, alterations and improvements made to the Premises shall
become the property of Landlord and be surrendered with the Premises upon
the expiration of the Term; provided, however, Tenant's equipment,
machinery and trade fixtures which can be removed without damage to the
Premises shall remain the property of Tenant and may be removed, subject to
the provisions of Section 13b.
13. LEASEHOLD IMPROVEMENTS; TENANT'S PROPERTY.
a. All fixtures, equipment, improvements and appurtenances attached to or
built into the Premises at the commencement of or during the Term, whether
or not by or at the expense of Tenant ("Leasehold Improvements"), shall be
and remain a part of the Premises, shall be the property of Landlord and
shall not be removed by Tenant, except as expressly provided in Section
13b.
(6)
b. All movable partitions, business and trade fixtures, machinery and
equipment, communications equipment and office equipment located in the
Premises and acquired by or for the account of Tenant, without expense to
Landlord, which can be removed without structural damage to the Building,
and all furniture, furnishings and other articles of movable personal
property owned by Tenant and located in the Premises (collectively
"Tenant's Property") shall be and shall remain the property of Tenant and
may be removed by Tenant at any time during the Term; provided that if any
of Tenant's Property is removed, Tenant shall promptly repair any damage to
the Premises or to the Building resulting from such removal.
14. RULES AND REGULATIONS.
Tenant agrees to comply with (and cause its agents, contractors, employees and
invitees to comply with) the rules and regulations attached hereto as Exhibit
"D" and with such reasonable modifications thereof and additions thereto as
Landlord may from time to time make. Except that Landlord shall make reasonable
efforts to force other Tenants to abide by all rules and regulations and to
mitigate the effects on Tenant of all other Tenants non-compliance with said
rules and regulations. Landlord shall not be responsible for any violation of
said rules and regulations by other tenants or occupants of the Building or
Project.
15. CERTAIN RIGHTS RESERVED BY LANDLORD.
Landlord reserves the following rights, exercisable without liability to Tenant
for (a) damage or injury to property, person or business, (b) causing an actual
or constructive eviction from the Premises, or (c) disturbing Tenant's
use or possession of the Premises:
a. To name the Building and Project and to change the name or street
address of the Building or Project;
b. To install and maintain all signs on the exterior and interior of the
Building and Project;
c. To have pass keys to the Premises and all doors within the Premises,
excluding ▇▇▇▇▇▇'s vaults and sales;
d. At any time during the Term, and on reasonable prior notice to Tenant,
to inspect the Premises, and to show the Premises to any prospective
purchaser or mortgagee of the Project, or to any assignee of any mortgage
on the Project, or to others having an interest in the Project or Landlord,
and during the last six months of the Term, to show the Premises to
prospective tenants thereof; and
e. To enter the Premises for the purpose of making inspections, repairs,
alterations, additions or improvements to the Premises or the Building
(including, without limitation, checking, calibrating, adjusting or
balancing controls and other parts of the HVAC system), and to take all
steps as may be necessary or desirable for the safety, protection,
maintenance or preservation of the Premises or the Building or Landlord's
interest therein or as may be necessary or desirable for the operation or
improvement of the Building or in order to comply with laws, orders or
requirements of governmental or other authority. Landlord agrees to use its
best efforts (except in an emergency) to minimize interference with
▇▇▇▇▇▇'s business in the Premises in the course of any such entry.
16. ASSIGNMENT AND SUBLETTING.
No assignment of this Lease or sublease of all or any part of the Premises shall
be permitted, except as provided in this Article 16.
a. Tenant shall not, without the prior written consent of Landlord,
assign or hypothecate this Lease or any interest herein or sublet the
Premises or any part thereof, or permit the use of the Premises by any
party other than Tenant. Any of the foregoing acts without such consent
shall be void and shall, at the option of Landlord, terminate this Lease.
This Lease shall not, nor shall any interest of Tenant herein, be
assignable by operation of law without the written consent of Landlord.
b. If at any time or from time to time during the Term Tenant desires to
assign this Lease or sublet all or any part of the Premises, Tenant shall
give notice to Landlord setting forth the terms and provisions of the
proposed assignment or sublease, and the identity of the proposed assignee
or subtenant. Tenant shall promptly supply Landlord with such information
concerning the business background and financial condition of such proposed
assignee or subtenant as Landlord may reasonably request. Landlord shall
have the option, exercisable by notice given to Tenant within twenty (20)
days after ▇▇▇▇▇▇'s notice is given, either to sublet such space from
Tenant at the rental and on the other terms set forth in this Lease for the
term set forth in Tenant's notice, or, in the case of an assignment, to
terminate this Lease. If Landlord does not exercise such option, Tenant may
assign the Lease or sublet such space to such proposed assignee or
subtenant on the following further conditions.
(1) Landlord shall have the right to approve such proposed assignee
or subtenant, which approval shall not be unreasonably withheld;
(2) The assignment or sublease shall be on the same terms set forth
in the notice given to Landlord;
(3) No assignment or sublease shall be valid and no assignee or
sublessee shall take possession of the Premises until an executed
counterpart of such assignment or sublease has been delivered to
Landlord;
(4) No assignee or sublessee shall have a further right to assign or
sublet except on the terms herein contained; and
(5) Any sums or other economic consideration received by Tenant as a
result of such assignment or subletting, however denominated under the
assignment or sublease, which exceed, in the aggregate, (i) the total
sums which Tenant is obligated to pay Landlord under this Lease
(prorated to reflect obligations allocable to any portion of the
Premises subleased).
c. Notwithstanding the provisions of paragraphs a and b above. Tenant may
assign this Lease or sublet the Premises or any portion thereof, without
Landlord's consent and without extending any recapture or termination
option to Landlord, to any corporation which controls, is controlled by or
is under common control with Tenant, or to any corporation resulting from a
merger or consolidation with Tenant, or to any person or entity which
acquires all the assets of Tenant's business as a going concern, provided
that (i) the assignee or sublessee assumes, in full, the obligations of
Tenant under this Lease, (ii) Tenant remains fully liable under this Lease,
and (iii) the use of the Premises under Article 8 remains unchanged.
(7)
d. No subletting or assignment shall release Tenant of Tenant's
obligations under this Lease or alter the primary liability of Tenant to
pay the Rent and to perform all other obligations to be performed by Tenant
hereunder. The acceptance of Rent by Landlord from any other person shall
not be deemed to be a waiver by Landlord of any provision hereof. Consent
to one assignment or subletting shall not be deemed consent to any
subsequent assignment or subletting. In the event of default by an assignee
or subtenant of Tenant or any successor of ▇▇▇▇▇▇ in the performance of any
of the terms hereof, Landlord may proceed directly against Tenant without
the necessity of exhausting remedies against such assignee, subtenant or
successor.
e. If Tenant assigns the Lease or sublets the Premises or requests the
consent of Landlord to any assignment or subletting or if Tenant requests
the consent of Landlord for any act that Tenant proposes to do, then Tenant
shall, upon demand, pay Landlord an administrative fee of One Hundred Fifty
and No/100ths Dollars ($150.00) plus any attorneys' fees reasonably
incurred by Landlord in connection with such act or request.
17. HOLDING OVER.
If after expiration of the Term, Tenant remains in possession of the Premises
with Landlord's permission (express or implied), Tenant shall become a tenant
from month to month only, upon all the provisions of this Lease (except as to
term and Base Rent), but the "Monthly Installments of Base Rent" payable by
Tenant shall be increased to one hundred twenty five percent (125%) of the
Monthly installments of Base Rent payable by Tenant at the expiration of the
Term. Such monthly rent shall be payable in advance on or before the first day
of each month, if either party desires to terminate such month to month
tenancy, it shall give the other party not less than thirty (30) days advance
written notice of the date of termination.
18. SURRENDER OF PREMISES.
a. Tenant shall peaceably surrender the Premises to Landlord on the
Expiration Date, in broom clean condition and in as good condition as when
▇▇▇▇▇▇ took possession, except for (i) reasonable wear and tear, (ii) loss
by fire or other casualty, and (iii) loss by condemnation. Tenant shall, on
▇▇▇▇▇▇▇▇'s request, remove ▇▇▇▇▇▇'s Property on or before the Expiration
Date and promptly repair all damage to the Premises or Building caused by
such removal.
b. If ▇▇▇▇▇▇ abandons or surrenders the Premises, or is dispossessed by
process of law or otherwise, any of Tenant's Property left on the Premises
shall be deemed to be abandoned, and, at Landlord's option, title shall
pass to Landlord under this Lease as by a bill of sale. If Landlord elects
to remove all or any part of such Tenant's Property, the cost of removal,
including repairing any damage to the Premises or Building caused by such
removal, shall be paid by Tenant. On the Expiration Date Tenant shall
surrender all keys to the Premises.
19. DESTRUCTION OR DAMAGE.
a. If the Premises or the portion of the Building necessary for ▇▇▇▇▇▇'s
occupancy is damaged by fire, earthquake, act of God, the elements of other
casualty. Landlord shall, subject to the provisions of this Article,
promptly repair the damage, if such repairs can, in Landlord's opinion, be
completed within (90) ninety days. If Landlord determines that repairs can
be completed within ninety (90) days, this Lease shall remain in full force
and effect, except that if such damage is not the result of the negligence
or willful misconduct of Tenant or Tenant's agents, employees, contractors,
licensees or invitees, the Base Rent and additional rent including all
project operating costs shall be abated to the extent Tenant's use of the
Premises is impaired, commencing with the date of damage and continuing
until completion of the repairs required of Landlord under Section 19d.
b. If in Landlord's opinion, such repairs to the Premises or portion of
the Building necessary for Tenant's occupancy cannot be completed within
ninety (90) days, Landlord or Tenant may elect, upon notice to the other
given within thirty (30) days after the date of such fire or other casualty
to terminate this Lease as of the date of such fire or casualty or agree to
have the Landlord repair such damage, in which event this Lease shall
continue in full force and effect, but the Base Rent shall be partially
abated as provided in Section 19a. If Landlord does not make such repairs,
this Lease shall terminate as of the date of such fire or other casualty.
c. If any other portion of the Building or Project is totally destroyed
or damaged to the extent that in Landlord's opinion repair thereof cannot
be completed within ninety (90) days, Landlord or Tenant may elect upon
notice to the other given within thirty (30) days after the date of such
fire or other casualty to terminate this Lease as of the date of such fire
or casualty or agree to have the Landlord repair such damage, in which
event this Lease shall continue in full force and effect, but the Base Rent
shall be partially abated as provided in Section 19a. If Landlord does not
make such repairs, this Lease shall terminate as of the date of such fire
or other casualty.
d. If the Premises are to be repaired under this Article, Landlord shall
repair at its cost any injury or damage to the Building and Building
Standard Work in the Premises. Except in the event of willful acts or
negligence of Landlord, its employees or agent Tenant shall be responsible
at its sole cost and expense for the repair, restoration and replacement of
any other Tenant provided Leasehold Improvements and Tenant's Property.
Landlord shall not be liable for any loss of business, inconvenience or
annoyance arising from any repair or restoration of any portion of the
Premises, Building or Project as a result of any damage from fire or other
casualty.
e. This Lease shall be considered an express agreement governing any case
of damage to or destruction of the Premises, Building or Project by fire
or other casualty, and any present or future law which purports to govern
the rights of Landlord and Tenant in such circumstances in the absence of
express agreement, shall have no application.
20. EMINENT DOMAIN.
a. If the whole of the Building or Premises is lawfully taken by
condemnation or in any other manner for any public or quasi public
purpose, this Lease shall terminate as of the date of such taking, and
Rent shall be prorated to such date. If less than the whole of the Building
or Premises is so taken, this Lease shall be unaffected by such taking,
provided that (i) Tenant shall have the right to terminate this Lease by
notice to Landlord given within ninety (90) days after the date of such
taking if twenty percent (20%) or more of the Premises is taken and the
remaining area of the Premises is not reasonably sufficient for Tenant to
continue operation of its business, and (ii) Landlord shall have the right
to terminate this Lease by notice to Tenant given within ninety (90) days
after the date of such taking. If either Landlord or Tenant so elects to
terminate this Lease, the Lease shall terminate on the thirtieth (30th) day
after either such notice. The Rent shall be prorated to the date of
termination. If this Lease continues in force upon such partial taking, the
Base Rent and ▇▇▇▇▇▇'s Proportionate Share shall be equitably adjusted
according to the remaining Rentable Area of the Premises and Project.
(8)
b. In the event of any taking, partial or whole, all of the proceeds of
any award, judgment or settlement payable by the condemning authority shall
be the exclusive property of Landlord, and Tenant hereby assigns to
Landlord all of its right, title and interest in any award, judgment or
settlement from the condemning authority. Tenant, however, shall have the
right, to the extent that Landlord's award is not reduced or prejudiced, to
claim from the condemning authority (but not from Landlord) such
compensation as may be recoverable by Tenant in its own right for
relocation expenses and damage to ▇▇▇▇▇▇'s personal property.
c. In the event of a partial taking of the Premises which does not result
in a termination of this Lease, Landlord shall restore the remaining
portion of the Premises as nearly as practicable to its condition prior to
the condemnation or taking, but only to the extent of Building Standard
Work. Tenant shall be responsible at its sole cost and expense for the
repair, restoration and replacement of any other Leasehold Improvements and
Tenant's Property.
21. INDEMNIFICATION.
a. Except negligence or willful acts of landlord or that of its agents or
employees, Tenant shall indemnify and hold Landlord harmless against and
from liability and claims of any kind for loss or damage to property of
Tenant or any other person, or for any injury to or death of any person,
arising out of: (1) Tenant's use and occupancy of the Premises, or any
work, activity or other things allowed or suffered by Tenant to be done in
or on the Premises; (2) any breach or default by Tenant of any of Tenant's
obligations under this Lease; or (3) any negligent or otherwise tortious
act or omission of Tenant, its agents, employees, invitees or contractors.
Except as provided above, Tenant shall at Tenant's expense, and by counsel
satisfactory to Landlord, defend Landlord in any action or proceeding
arising from any such claim and shall indemnify Landlord against all costs,
attorneys' fees, expert witness fees and any other expenses incurred in
such action or proceeding.
b. Except in the event of negligence or willful acts of Landlord,
Landlord shall not be liable for injury or damage which may be sustained by
the person or property of Tenant, its employees, invitees or customers, or
any other person in or about the Premises, caused by or resulting from
fire, steam, electricity, gas, water or rain which may leak or flow from or
into any part of the Premises, or from the breakage, leakage, obstruction
or other defects of pipes, sprinklers, wires, appliances, plumbing, air
conditioning or lighting fixtures, whether such damage or injury results
from conditions arising upon the Premises or upon other portions of the
Building or Project or from other sources. Landlord shall not be liable for
any damages arising from any act or omission of any other tenant of the
Building or Project.
22. TENANT'S INSURANCE.
a. All insurance required to be carried by Tenant hereunder shall be issued
by responsible insurance companies acceptable to Landlord and Landlord's
lender and qualified to do business in the State. Each policy shall name
▇▇▇▇▇▇▇▇, and at ▇▇▇▇▇▇▇▇'s request any mortgagee of Landlord, as an
additional insured, as their respective interests may appear. Each policy
shall contain (i) a gross-liability endorsement, (ii) a provision that such
policy and the coverage evidenced thereby shall be primary and non-
contributing with respect to any policies carried by Landlord and that any
coverage carried by Landlord shall be excess insurance, and (iii) a waiver
by the insurer of any right of subrogation against Landlord, its agents,
employees and representatives, which arises or might arise by reason of any
payment under such policy or by reason of any act or omission of Landlord,
its agents, employees or representatives. A copy of each paid up policy
(authenticated by the insurer) or certificate of the insurer evidencing the
existence and amount of each insurance policy required hereunder shall be
delivered to Landlord before the date Tenant is first given the right of
possession of the Premises, and thereafter within thirty (30) days after
any demand by Landlord therefor. Landlord may, at any time and from time to
time, inspect and/or copy any insurance policies required to be maintained
by Tenant hereunder. No such policy shall be cancellable except after
twenty (20) days written notice to Landlord and Landlord's lender. Tenant
shall furnish Landlord with renewals or "binders" of any such policy at
least ten (10) days prior to the expiration thereof. Tenant agrees that if
▇▇▇▇▇▇ does not take out and maintain such insurance, Landlord may (but
shall not be required to) procure said insurance on Tenant's behalf and
charge the Tenant the premiums together with a twenty-five percent (25%)
handling charge, payable upon demand. Tenant shall have the right to
provide such insurance coverage pursuant to blanket policies obtained by
the Tenant, provided such blanket policies expressly afford coverage to the
Premises, Landlord, ▇▇▇▇▇▇▇▇'s mortgagee and Tenant as required by this
Lease.
b. Beginning on the date Tenant is given access to the Premises for any
purpose and continuing until expiration of the Term, Tenant shall procure,
pay for and maintain in effect policies of casualty insurance covering (i)
all Leasehold improvements (including any alterations, additions or
improvements as may be made by Tenant pursuant to the provisions of Article
12 hereof), and (ii) trade fixtures, merchandise and other personal
property from time to time in, on or about the Premises, in an amount not
less than one hundred percent (100%) of their actual replacement cost from
time to time, providing protection against any peril included within the
classification "Fire and Extended Coverage" together with insurance against
sprinkler damage, vandalism and malicious mischief. The proceeds of such
insurance shall be used for the repair or replacement of the property so
insured. Upon termination of this Lease following a casualty as set forth
herein, the proceeds under (i) shall be paid to Landlord, and the proceeds
under (ii) above shall be paid to Tenant.
c. Beginning on the date Tenant is given access to the Premises for any
purpose and continuing until expiration of the Term, Tenant shall procure,
pay for and maintain in effect workers' compensation insurance as required
by law and comprehensive public liability and property damage insurance
with respect to the construction of improvements on the Premises, the use,
operation or condition of the Premises and the operations of Tenant in, on
or about the Premises, providing personal injury and broad form property
damage coverage for not less than One Million Dollars ($1,000,000.00)
combined single limit for bodily injury, death and property damage
liability.
d. Not less than every three (3) years during the Term, Landlord and
Tenant shall mutually agree to increases in all of Tenant's insurance
policy limits for all insurance to be carried by Tenant as set forth in
this Article. In the event Landlord and ▇▇▇▇▇▇ cannot mutually agree upon
the amounts of said increases, then ▇▇▇▇▇▇ agrees that all insurance policy
limits as set forth in this Article shall be adjusted for increases in the
cost of living in the same manner as is set forth in Section 5.2 hereof for
the adjustment of the Base Rent.
23. WAIVER OF SUBROGATION.
Landlord and Tenant each hereby waive all rights of recovery against the other
and against the officers, employees, agents and representatives of the other, on
account of loss by or damage to the waiving party of its property or the
property of others under its control, to the extent that such loss or damage is
insured against under any fire and extended coverage insurance policy which
either may have in force at the time of the loss or damage. Tenant shall, upon
obtaining the policies of insurance required under this Lease, give notice to
its insurance carrier or carriers that the foregoing mutual waiver of
subrogation is contained in this Lease.
24. SUBORDINATION AND ATTORNMENT.
Upon written request of ▇▇▇▇▇▇▇▇, or any first mortgagee or first deed of trust
beneficiary of Landlord, or ground lessor of Landlord, Tenant shall, in writing,
subordinate its rights under this Lease to the lien of any first mortgage or
first deed of trust, or to the interest of any lease in which Landlord is
lessee, and to all advances made or hereafter to be made thereunder. However,
before signing any subordination agreement, Tenant shall have the right to
obtain from any lender or lessor or Landlord requesting such subordination, an
agreement in writing providing that, as long as Tenant is not in default
hereunder, this Lease shall remain in effect for the full Term. The holder of
any security interest may, upon written notice to Tenant, elect to have this
Lease prior to its security interest regardless of the time of the granting or
recording of such security interest.
In the event of any foreclosure sale, transfer in lieu of foreclosure or
termination of the lease in which Landlord is lessee, Tenant shall attorn to the
purchaser, transferee or lessor as the case may be, and recognize that party as
Landlord under this Lease, provided such party acquires and accepts the Premises
subject to this Lease.
25. TENANT ESTOPPEL CERTIFICATES.
Within ten (10) days after written request from Landlord, Tenant shall execute
and deliver to Landlord or Landlord's designee, a written statement certifying
(a) that this Lease is unmodified and in full force and effect, or is in full
force and effect as modified and stating the modifications; (b) the amount of
Base Rent and the date to which Base Rent and additional rent have been paid in
advance; (c) the amount of any security deposited with Landlord; and (d) that
Landlord is not in default hereunder or, if ▇▇▇▇▇▇▇▇ is claimed to be in
default, stating the nature of any claimed default. Any such statement may be
relied upon by a purchaser, assignee or lender. Tenant's failure to execute and
deliver such statement within the time required shall at Landlord's election be
a default under this Lease and shall also be conclusive upon Tenant that: (1)
this Lease is in full force and effect and has not been modified except as
represented by Landlord; (2) there are no uncured defaults in Landlord's
performance and that Tenant has no right of offset, counter-claim or deduction
against Rent; and (3) not more than one month's Rent has been paid in advance.
26. TRANSFER OF LANDLORD'S INTEREST.
In the event of any sale or transfer by Landlord of the Premises, Building or
Project, and assignment of this Lease by Landlord, Landlord shall be and is
hereby entirely freed and relieved of any and all liability and obligations
contained in or derived from this Lease arising out of any act, occurrence or
omission relating to the Premises, Building, Project or Lease occurring after
the consummation of such sale or transfer, providing the purchaser shall
expressly assume all of the covenants and obligations of Landlord under this
Lease. If any security deposit or prepaid Rent has been paid by Tenant, Landlord
shall transfer the security deposit or prepaid Rent to Landlord's successor
and upon such transfer, Landlord shall be relieved of any and all further
liability with respect thereto.
27. DEFAULT.
27.1. TENANT'S DEFAULT. The occurrence of any one or more of the following
events shall constitute a default and breach of this Lease by Tenant:
a. If Tenant abandons or vacates the Premises without continuing to pay
rent; or
b. If Tenant fails to pay any Rent or any other charges required to be paid
by Tenant under this Lease and such failure continues for five (5) days
after such payment is due and payable; or
c. If Tenant fails to promptly and fully perform any other covenant,
condition or agreement contained in this Lease and such failure continues
for thirty (30) days or Tenant has not commenced to remedy any failure that
reasonably would take longer than thirty days to remedy after written
notice thereof from Landlord to Tenant; or
d. If a writ of attachment or execution is levied on this Lease or on any
of Tenant's Property; or
e. If ▇▇▇▇▇▇ makes a general assignment for the benefit of creditors, or
provides for an arrangement, composition, extension or adjustment with its
creditors; or
f. If Tenant files a voluntary petition for relief or if a petition against
Tenant in a proceeding under the federal bankruptcy laws or other
insolvency laws is filed and not withdrawn or dismissed within forty-five
(45) days thereafter, or if under the provisions of any law providing for
reorganization or winding up of corporations, any court of competent
jurisdiction assumes jurisdiction, custody or control of Tenant or any
substantial part of its property and such jurisdiction, custody or control
remains in force unrelinquished, unstayed or unterminated for a period of
forty-five (45) days; or
g. If in any proceeding or action in which Tenant is a party, a trustee,
receiver, agent or custodian is appointed to take charge of the Premises
or Tenant's Property (or has the authority to do so) for the purpose of
enforcing a lien against the Premises or Tenant's Property; or
h. If Tenant is a partnership or consists of more than one (1) person or
entity, if any partner or the partnership or other person or entity is
involved in any of the acts or events described in subparagraphs d through
g above.
27.2. REMEDIES. In the event of ▇▇▇▇▇▇'s default hereunder, then in addition
to any other rights or remedies Landlord may have under any law, Landlord shall
have the right, at Landlord's option, without further notice or demand of any
kind to do the following:
a. Terminate this Lease and ▇▇▇▇▇▇'s right to possession of the Premises
and reenter the Premises and take possession thereof, and Tenant shall have
no further claim to the Premises or under this Lease; or
b. Continue this Lease in effect, reenter and occupy the Premises for the
account of Tenant, and collect any unpaid Rent or other charges which have
or thereafter become due and payable; or
c. Reenter the Premises under the provisions of subparagraph b, and
thereafter elect to terminate this Lease and ▇▇▇▇▇▇'s right to possession
of the Premises.
(10)
If Landlord reenters the Premises under the provisions of subparagraphs b or c
above, Landlord shall not be deemed to have terminated this Lease or the
obligation of Tenant to pay any Rent or other charges thereafter accruing,
unless Landlord notifies Tenant in writing of Landlord's election to terminate
this Lease. In the event of any reentry or retaking of possession by Landlord,
Landlord shall have the right, but not the obligation, to remove all or any part
of Tenant's Property in the Premises and to place such property in storage at a
public warehouse at the expense and risk of Tenant. If Landlord elects to relet
the Premises for the account of Tenant, the rent received by Landlord from such
relettting shall be applied as follows: first, to the payment of any
indebtedness other than Rent due hereunder from Tenant to Landlord; second, to
the payment of any costs of such reletting: third, to the payment of the cost of
any alterations or repairs to the Premises; fourth, to the payment of Rent due
and unpaid hereunder; and the balance, if any, shall be held by Landlord and
applied in payment of future Rent as it becomes due. If that portion of rent
received from the reletting which is applied against the Rent due hereunder is
less than the amount of the Rent due, Tenant shall pay the deficiency to
Landlord promptly upon demand by Landlord. Such deficiency shall be calculated
and paid monthly. Tenant shall also pay to Landlord, as soon as determined, any
costs and expenses incurred by Landlord in connection with such reletting or in
making alternations and repairs to the Premises, which are not covered by the
rent received from the reletting.
Should Landlord elect to terminate this Lease under the provisions of
subparagraph a or c above, Landlord may recover as damages from Tenant the
following:
1. Past Rent. The worth at the time of the award of any unpaid Rent which
had been earned at the time of termination; plus
2. Rent Prior to Award. The worth at the time of the award of the amount
by which the unpaid Rent which would have been earned after
termination until the time of award exceeds the amount of such rental
loss that Tenant proves could have been reasonably avoided; plus
3. Rent After Award. The worth at the time of the award of the amount by
which the unpaid Rent for the balance of the Term after the time of
award exceeds the amount of the rental loss that Tenant proves could
be reasonably avoided; plus
4. Proximately Caused Damages. Any other amount necessary to compensate
Landlord for all detriment proximately caused by ▇▇▇▇▇▇'s failure to
perform its obligations under this Lease or which in the ordinary
course of things would be likely to result therefrom, including, but
not limited to, any costs or expenses (including attorneys' fees),
incurred by Landlord in (a) retaking possession of the Premises, (b)
maintaining the Premises after Tenant's default, (c) preparing the
Premises for reletting to a new tenant, including any repairs or
alterations, and (d) reletting the Premises, including broker's
commissions.
"The worth at the time of the award" as used in subparagraphs 1 and 2 above, is
to be computed by allowing interest at the rate of ten percent (10%) per annum.
"The worth at the time of the award" as used in subparagraph 3 above, is to be
computed by discounting the amount at the discount rate of the Federal Reserve
Bank situated nearest to the Premises at the time of the award plus one percent
(1%).
The waiver by Landlord of any breach of any term, covenant or condition of this
Lease shall not be deemed a waiver of such term, covenant or condition or of any
subsequent breach of the same or any other term, covenant or condition.
Acceptance of Rent by Landlord subsequent to any breach hereof shall not be
deemed a waiver of any preceding breach other than the failure to pay the
particular Rent so accepted, regardless of Landlord's knowledge of any breach at
the time of such acceptance of Rent. Landlord shall not be deemed to have waived
any term, covenant or condition unless Landlord gives Tenant written notice of
such waiver.
27.3 Landlord's Default. If Landlord fails to perform any covenant, condition or
agreement contained in this Lease within thirty (30) days after receipt of
written notice from Tenant specifying such default, or if such default cannot
reasonably be cured within thirty (30) days, if Landlord fails to commence to
cure within that thirty (30) day period, then Landlord shall be liable to Tenant
for any damages sustained by ▇▇▇▇▇▇ as a result of Landlord's breach; provided,
however, it is expressly understood and agreed that if Tenant obtains a money
judgment against Landlord resulting from any default or other claim arising
under this Lease, that judgment shall be satisfied only out of the rents,
issues, profits, and other income actually received on account of Landlord's
right, title and interest in the Premises, Building or Project, and no other
real, personal or mixed property of Landlord (or of any of the partners which
comprise Landlord, if any) wherever situated, shall be subject to levy to
satisfy such judgement. If, after notice to Landlord of default, Landlord (or
any first mortgagee or first deed of trust beneficiary of Landlord) fails to
cure the default as provided herein, then Tenant shall have the right to cure
that default at Landlord's expense.
28. BROKERAGE FEES.
Tenant warrants and represents that it has not dealt with any real estate broker
or agent in connection with this Lease or its negotiation except those noted in
Section 2.c. Tenant shall indemnify and hold Landlord harmless from any cost,
expense or liability (including costs of suit and reasonable attorneys' fees)
for any compensation, commission or fees claimed by any other real estate broker
or agent in connection with this Lease or its negotiation by reason of any act
of Tenant.
29. NOTICES.
All notices, approvals and demands permitted or required to be given under this
Lease shall be in writing and deemed duly served or given if personally
delivered or sent by certified or registered U.S. mail, postage prepaid and
addressed as follows: (a) if to Landlord, to Landlord's Mailing Address and to
the Building manager, and (b) if to Tenant, to Tenant's Mailing Address, with
copy to: The Money Store, ▇▇▇▇ "▇" ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: National Leasing Manager, provided, however, notices to Tenant shall be
deemed duly served or given if delivered or mailed to Tenant at the Premises
with copy to: The Money Store, ▇▇▇▇ "▇" ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ ATTN: National Leasing Manager, Landlord and Tenant may from time to time
by notice to the other designate another place for receipt of future notices.
30. GOVERNMENT ENERGY OR UTILITY CONTROLS.
In the event of imposition of federal, state or local government controls,
rules, regulations, or restrictions on the use or consumption of energy or other
utilities during the Term, both Landlord and Tenant shall be bound thereby. In
the event of a difference in interpretation by ▇▇▇▇▇▇▇▇ and Tenant of any such
controls, the interpretation of a mutually agreed upon third party shall
prevail, and Landlord shall have the right to enforce compliance therewith,
including the right of entry into the Premises to effect compliance.
31. RELOCATION OF PREMISES
(11)
32. QUIET ENJOYMENT.
Tenant, upon paying the Rent and performing all of its obligations under this
Lease, shall peaceably and quietly enjoy the Premises, subject to the terms of
this Lease and to any mortgage, lease, or other agreement to which this Lease
may be subordinate.
33. OBSERVANCE OF LAW.
Tenant shall not use the Premises or permit anything to be done in or about the
Premises which will in any way conflict with any law, statute, ordinance or
governmental rule or regulation now in force or which may hereafter be enacted
or promulgated. To the extent Landlord would not otherwise owe such duty or have
a duty imposed upon it, Tenant shall, at its sole cost and expense, promptly
comply with all laws, statutes, ordinances and governmental rules, regulations
or requirements now in force or which may hereafter be in force, and with the
requirements of any board of fire insurance underwriters or other similar bodies
now or hereafter constituted, relating to, or affecting the condition, use or
occupancy of the Premises, excluding structural changes not related to or
affected by Tenant's improvements or acts. The judgment of any court of
competent jurisdiction or the conclusive admission of Tenant in any action
against Tenant, whether Landlord is a party thereto or not, that Tenant has
violated any law, ordinance or governmental rule, regulation or requirement,
shall be conclusive of that fact as between Landlord and Tenant.
34. FORCE MAJEURE.
Any prevention, delay or stoppage of work to be performed by Landlord or Tenant
which is due to strikes, labor disputes, inability to obtain labor, materials,
equipment or reasonable substitutes therefor, acts of God, governmental
restrictions or regulations or controls, judicial orders, enemy or hostile
government actions, civil commotion, fire or other casualty, or other causes
beyond the reasonable control of the party obligated to perform hereunder, shall
excuse performance of the work by that party for a period equal to the duration
of that prevention, delay or stoppage. Nothing in this Article 34 shall excuse
or delay ▇▇▇▇▇▇'s obligation to pay Rent or other charges under this Lease.
35. CURING TENANT'S DEFAULTS.
If Tenant defaults in the performance of any of its obligations under this
Lease, Landlord may (but shall not be obligated to) without waiving such
default, perform the same for the account at the expense of Tenant. Tenant
shall pay Landlord all reasonable costs of such performance promptly upon
receipt of a bill therefor.
36. SIGN CONTROL.
Tenant shall not affix, paint, erect or inscribe any sign, projection, awning,
signal or advertisement of any kind to any part of the Premises, Building or
Project, including without limitation, the inside or outside of windows or
doors, without the written consent of Landlord. Landlord shall have the right to
remove any signs or other matter, installed without ▇▇▇▇▇▇▇▇'s permission,
without being liable to Tenant by reason of such removal, and to charge the cost
of removal to Tenant as additional rent hereunder, payable within ten (10) days
of written demand by ▇▇▇▇▇▇▇▇.
37. MISCELLANEOUS.
a. Accord and Satisfaction; Allocation of Payments. No payment by Tenant or
receipt by Landlord of a lesser amount than the Rent provided for in this Lease
shall be deemed to be other than on account of the earliest due Rent, nor shall
any endorsement or statement on any check or letter accompanying any check or
payment as Rent be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of the Rent or pursue any other remedy provided for in this Lease. In
connection with the foregoing, Landlord shall have the absolute right in its
sole discretion to apply any payment received from Tenant to any account or
other payment of Tenant then not current and due or delinquent.
b. Addenda. If any provision contained in an addendum to this Lease is
inconsistent with any other provision herein, the provision contained in the
addendum shall control, unless otherwise provided in the addendum.
c. Attorneys' Fees. If any action or proceeding is brought by either party
against the other pertaining to or arising out of this Lease, the finally
prevailing party shall be entitled to recover all costs and expenses, including
reasonable attorneys' fees, incurred on account of such action or proceeding.
d. Captions, Articles and Section Numbers. The captions appearing within the
body of this Lease have been inserted as a matter of convenience and for
reference only and in no way define, limit or enlarge the scope or meaning of
this Lease. All references to Article and Section numbers refer to Articles and
Sections in this Lease.
e. Changes Requested by ▇▇▇▇▇▇. Neither Landlord or Tenant shall unreasonably
withhold its consent to changes or amendments to this Lease requested by the
lender on Landlord's interest, so long as these changes do not alter the basic
business terms of this Lease or otherwise materially diminish any rights or
materially increase any obligations of the party from whom consent to such
change or amendment is requested.
f. Choice of Law. This Lease shall be construed and enforced in accordance
with the laws of the State.
(12)
h. Corporate Authority. If Tenant is a corporation, each individual signing
this Lease on behalf of Tenant represents and warrants that he is duly
authorized to execute and deliver this Lease on behalf of the corporation, and
that this Lease is binding on Tenant in accordance with its terms. Tenant shall,
at ▇▇▇▇▇▇▇▇'s request, deliver a certified copy of a resolution of its board of
directors authorizing such execution.
i. Counterparts. This Lease may be executed in multiple counterparts, all of
which shall constitute one and the same Lease.
j. Execution of Lease; No Option. The submission of this Lease to Tenant shall
be for examination purposes only, and does not and shall not constitute a
reservation of or option for Tenant to lease, or otherwise create any interest
of Tenant in the Premises or any other premises within the Building or Project.
Execution of this Lease by Tenant and its return to Landlord shall not be
binding on Landlord or Tenant notwithstanding any time interval, until ▇▇▇▇▇▇▇▇
has in fact signed and delivered this Lease to Tenant.
k. Furnishing of Financial Statements; Tenant's Representations. In order to
induce ▇▇▇▇▇▇▇▇ to enter into this Lease ▇▇▇▇▇▇ agrees that it shall promptly
furnish Landlord, from time to time, upon ▇▇▇▇▇▇▇▇'s written request, with
financial statements reflecting ▇▇▇▇▇▇'s current financial condition. Tenant
represents and warrants that all financial statements, records and information
furnished by Tenant to Landlord in connection with this Lease are true, correct
and complete in all respects.
l. Further Assurances. The parties agree to promptly sign all documents
reasonably requested to give effect to the provisions of this Lease.
m. Mortgage Protection. ▇▇▇▇▇▇ agrees to send by certified or registered mail
to any first mortgagee or first deed of trust beneficiary of Landlord whose
address has been furnished to Tenant, a copy of any notice of default served by
Tenant on Landlord. If Landlord fails to cure such default within the time
provided for in this Lease, such mortgagee or beneficiary shall have an
additional thirty (30) days to cure such default; provided that if such default
cannot reasonably be cured within that thirty (30) day period, then such
mortgagee or beneficiary shall have such additional time to cure the default as
is reasonably necessary under the circumstances.
n. Prior Agreements; Amendments. This Lease contains all of the agreements of
the parties with respect to any matter covered or mentioned in this Lease, and
no prior agreement or understanding pertaining to any such matter shall be
effective for any purpose. No provisions of this Lease may be amended or added
to except by an agreement in writing signed by the parties or their respective
successors in interest.
o. Recording. Tenant shall not record this Lease without the prior written
consent of Landlord. Tenant, upon the request of ▇▇▇▇▇▇▇▇, shall execute and
acknowledge a "short form" memorandum of this Lease for recording purposes.
p. Severability. A final determination by a court of competent jurisdiction
that any provision of this Lease is invalid shall not affect the validity of any
other provision, and any provision so determined to be invalid shall, to the
extent possible, be construed to accomplish its intended effect.
q. Successors and Assigns. This Lease shall apply to and bind the heirs,
personal representatives, and permitted successors and assigns of the parties.
r. Time of the Essence. Time is of the essence of this Lease.
s. Waiver. No delay or omission in the exercise of any right or remedy of
Landlord or Tenant upon default by the other shall impair such right or remedy
or be construed as a waiver of such default.
t. Compliance. The parties hereto agree to comply with all applicable federal,
state and local laws, regulations, codes, ordinances and administrative orders
having jurisdiction over the parties, property or the subject matter of this
Agreement, including, but not limited to, the 1964 Civil Rights Act and all
amendments thereto, the Foreign Investment In Real Property Tax Act, the
Comprehensive Environmental Response Compensation and Liability Act, and The
Americans With Disabilities Act.
The receipt and acceptance by Landlord of delinquent Rent shall not constitute a
waiver of any other default; it shall constitute only a waiver of timely payment
for the particular Rent payment involved.
No act or conduct of Landlord, including, without limitation, the acceptance of
keys to the Premises, shall constitute an acceptance of the surrender of the
Premises by Tenant before the expiration of the Term. Only a written notice from
Landlord to Tenant shall constitute acceptance of the surrender of the Premises
and accomplish a termination of the Lease.
▇▇▇▇▇▇▇▇'s consent to or approval of any act by Tenant requiring Landlord's
consent or approval shall not be deemed to waive or render unnecessary
Landlord's consent to or approval of any subsequent act by ▇▇▇▇▇▇.
Any waiver by Landlord of any default must be in writing and shall not be a
waiver of any other default concerning the same or any other provision of the
Lease.
The parties hereto have executed this Lease as of the dates set forth below.
Date: 5/18/95 Date: ________________________
----------------------------------------
Landlord: Crosstown Building Partners Tenant: The Money Store, Inc.
By: Delta-Sierra Development, G.P. ----------------------
------------------------------------
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------ --------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Title: President Title: Sr. Vice President
--------------------------------------- -----------------------
By: __________________________________________ By: __________________________
Title: _______________________________________ Title: _______________________
--------------------------------------------------------------------------------
CONSULT YOUR ADVISORS -- This document has been prepared for approval by your
attorney. No representation or recommendation is made by CB Commercial as to the
legal sufficiency or tax consequences of this document or the transaction to
which it relates. These are questions for your attorney.
In any real estate transaction, it is recommended that you consult with a
professional, such as a civil engineer, industrial hygienist or other person,
with experience in evaluating the condition of the property, including the
possible presence of asbestos, hazardous materials and underground storage
tanks.
--------------------------------------------------------------------------------
(13)
PAGE>
ADDENDUM TO LEASE
THIS ADDENDUM ("Addendum") is made to that certain lease (the "Lease") dated as
of January 1, 1995, by and between The Money Store Inc., a New Jersey
Corporation, as Tenant, and Crosstown Building Partners, a California limited
partnership, as Landlord. This Addendum shall be deemed a part of the Lease as
though set forth in full therein.
1. Adjusted Rents. The Fixed Minimum Monthly Rent, as adjusted during
--------------
the initial term, shall be as follows:
Months Base Monthly Rent
------ -----------------
1-12 $6,181.00
13-24 $6,366.43
25-36 $6,557.42
2. Signs. Tenant shall not be permitted to install any sign on the
-----
exterior of the Building. Tenant may place a sign identifying Tenant as an
occupant of the building in the "billboard tenant identification sign" located
in the first floor lobby of the Building, and another identification sign
outside of the Premises, provided any such sign(s) are consistent with the
signage theme adopted for the Building by Landlord. No other signs may be
displayed without ▇▇▇▇▇▇▇▇'s prior written permission. THE EXISTING CARDBOARD
SIGN LOCATED IN THE FIRST FLOOR LOBBY AND THE CONSTRUCTION PAPER COVERING THE
GLASS OF THE FIRST FLOOR ENTRANCE MUST BE REMOVED WITHIN TEN (10) DAYS OF THE
DATE HEREOF, OR LANDLORD IS AUTHORIZED TO REMOVE THEM WITHOUT FURTHER NOTICE TO
TENANT. At the termination of this Lease for any reason whatsoever, Tenant
shall remove all signs installed pursuant to this Lease, and repair, replace
and/or repaint the areas effected by said signs in order to restore said area(s)
to the condition existing prior to said sign(s) installation, all at Tenant's
sole expense.
3. Tenant Improvements. Tenant leases and Landlord lets the Premises "as
-------------------
is". Tenant shall not demolish any existing tenant improvements or make any
additional tenant improvements without ▇▇▇▇▇▇▇▇'s expressed written consent,
which consent may not be unreasonably withheld. Landlord makes no representation
or warranty with regard to the existing improvements or to any improvements made
or to be made by Tenant. Unless otherwise determined by Landlord, any permitted
item of improvement made by Tenant shall be deemed part of the Premises and
shall be owned by Landlord. Tenant hereby indemnifies Landlord from and against
any liens, claims of lien or other causes of action brought as a result of
performing any tenant improvements to the Premises.
4. Option to Extend. Tenant is given the option to extend the term of
----------------
the Lease on all the terms and conditions contained herein, except the minimum
monthly rent, for one (1) three (3) year period (the "Extended Term") following
the expiration of the initial term, by giving notice of exercise of the option
("Option Notice") to Landlord at least five (5) months but not more than nine
(9) months before the expiration of the initial term. Provided that, if Tenant
is in default on the date of giving the Option Notice, at Landlord's election,
the Option Notice shall be ineffective, or if Tenant is in default on the date
the Extended Term is to commence, at Landlord's election, the Extended Term
shall not commence, and this Lease shall expire at the end of initial term. The
parties shall have sixty (60) days after Landlord receives the Option Notice in
which to agree on the applicable rental for the Extended Term. If the parties
agree to the applicable rental within said 60 days, they shall immediately
execute an amendment to this Lease stating the applicable rental for the
Extended Term.
If the parties are unable to agree on the applicable rental for the Extended
Term within said 60 days, then within ten (10) days thereafter, each party, at
its cost, and by giving notice to the other party, shall appoint a real estate
appraiser who is a member in good standing of the American Institute of Real
Estate Appraisers ("MAI") with at least five (5) years full time commercial
appraisal experience in the Sacramento County area, to render an opinion as to
the
market rental to apply during the Extended Term. If a party fails to appoint an
appraiser within 10 days after the other party has given notice of the name of
its appraiser, the single appraiser so appointed shall be the sole appraiser and
shall set the applicable rental for the Extended Term. If two appraisers are
appointed as provided above, they shall meet promptly and attempt to set the
applicable rental for the Extended Term.
If the appraisers are unable to agree to the applicable rental within thirty
(30) days, they shall, within ten (10) days thereafter, submit their respective
opinions as to what the applicable rental should be to Landlord. In such event
the rent schedule last proposed in writing by Landlord in its previous
negotiations with Tenant shall be added together with each appraiser's rental
schedule, and the total divided by three (3). If the only practical means of
accomplishing the foregoing is to calculate the beginning rent in each case and
divide it by 3, the quotient so determined shall be the beginning rental, which
shall be subject to annual increases using the Consumer Price Index defined in
Section 2 (h) of the Lease, published as the U.S. City Average. In no event
shall the rental for the Extended Term be a flat rate rental for the entire
Extended Term.
If the Tenant objects to the rental schedule so determined, Tenant shall have
the right to elect to have the Lease expire at the end of the initial term,
provided Tenant pays for all the costs incurred in connection with the appraisal
procedure used to set the rental schedule for the Option Term, including
attorney's fees, if any. ▇▇▇▇▇▇'s election to allow the Lease to expire must be
exercised, if at all, within ten (10) days after receipt of notice from Landlord
or the appraisers, as the case may be, of the rental schedule for the Extended
Term as determined pursuant to this Paragraph 14.
5. Limited Right to Early Termination. Subject to the terms set forth
----------------------------------
in this Paragraph, Tenant shall have the right to terminate this Lease after the
twelfth (12th) month of the Lease term upon giving Landlord at least sixty (60)
days prior written notice, provided: a) in the event Tenant is in default on the
date of giving notice of early termination, such default must be cured prior to
the early termination date; and b) Tenant must be terminating this Lease in
order for the operations then occupying the Premises to consolidate with
Tenant's various other Sacramento operations (including affiliates and
subsidiary companies) into new headquarters. In the event any such default is
not cured or such consolidation is not immenent, the early termination shall be
ineffective and the full term of this Lease shall apply. The phrase "consolidate
Tenant's various other Sacramento operations" shall mean that not less than
ninety percent (90%) of the operations of Tenant and its affiliates and
subsidiaries, including The Money Store Investment Corporation and Educaid,
which are then operating in the Sacramento metropolitan Statistical Area, are at
that time consolidating into one building, or a single office complex of more
than one building.
6. Confidentiality Clause. Tenant acknowledges and agrees that the terms
----------------------
of this Lease are special, valuable and unique to this transaction, and hereby
covenants and agrees during the period prior to execution of this Lease and
during the term thereof, to not reveal or make available the Lease or its
content, terms or provisions to any individual or entity without the prior
written consent of Landlord. This Paragraph shall not apply to any auditor,
accountant or consultant to Tenant, when such party requires review of this
Lease as a part of its services to Tenant or a third party dealing with Tenant.
7. Safety/Indemnity. Tenant shall operate its business and use the
----------------
Premises in accordance with all applicable laws and ordinances, and in as safe
and hazard free manner as possible. Except with respect to any negligence or
willful acts of Landlord, its agents or employees, Tenant hereby indemnifies and
holds Landlord free and harmless against any and all losses, costs (including
attorneys' fees), damages, liability, personal or property damage, and shall
defend Landlord against any claims or causes of action brought against Landlord
as a result of Tenant's operation, possession or use of the Premises.
8. Interpretation. Any provision contained in the body of the Lease
--------------
which is inconsistent with any provision of this Addendum shall be superseded by
the provision contained in this Addendum. This Lease shall be governed by the
laws of the State of California.
9. Rentable Area. The parties acknowledge and agree that the Rentable
-------------
Area of the Premises may change from time to time during the term as Landlord
may need to change the configuration of leasable space within the Building as
other tenant's leases commence or terminate, and therefore Tenant's
Proportionate Share, as defined in Section 2 (r) of the Lease, may vary from
time to time accordingly.
10. Parking. Notwithstanding anything to the contrary contained in the
-------
Lease, the parking stalls which Tenant will be allowed to use will be assigned
to Tenant, and parking in any parking stalls other than those assigned to Tenant
is strictly prohibited. Tenant acknowledges that tenant parking for the Building
is subject to non-discriminatory rules and regulations which may be adopted by
Landlord from time to time, that Landlord reserves the right to charge a monthly
or other fee to Tenant for the parking stalls assigned to Tenant, so long as
Tenant is not the only tenant within the Building to be so charged. Tenant
further acknowledges that Landlord does not guaranty that all or any portion of
the parking stalls assigned to Tenant will be located in the parking lot
immediately adjacent to the Building.
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IN WITNESS WHEREOF, the parties have executed this Amendment in Sacramento,
California.
TENANT:
THE MONEY STORE INC., a New Jersey corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇▇▇▇▇▇, ▇▇. Vice President
LANDLORD:
CROSSTOWN BUILDING PARTNERS, a California limited partnership
By Delta-Sierra Development, Inc. a California corporation, its general
partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
ADDITIONAL TERMS
This and the following paragraphs are added to the lease. In the event of
any inconsistencies between the provisions of this Addendum and the provisions
of the Lease, this Addendum shall govern.
11. Notwithstanding anything to the contrary in this Lease, Landlord agrees
that all of its duties, rights and obligations under this Lease shall be
exercised in a reasonable manner and in good faith with respect to the Tenant.
12. Notwithstanding anything to the contrary in this Lease, Tenant shall have
the first right of refusal on any adjacent space. In the event a first right of
refusal has been granted to any other Tenant, Tenant shall have a second right
of refusal.
13. Americans with Disabilities Act: Landlord recognizes and agrees that
--------------------------------
Tenant shall not be liable for any damages or claims, or for any changes to in,
or about the building, which may be required by The Americans with Disabilities
Act. ▇▇▇▇▇▇▇▇ agrees to indemnify and hold harmless, and to defend, Tenant
against all liability, cost and expenses Tenant may incur as a result of any
claim, damages, or action, including without limitation any lawsuit or
administrative proceedings, asserted against Tenant as a result of The Americans
with Disabilities Act.
14. Monetary Default: Notwithstanding anything in this Lease to the contrary
-----------------
Landlord shall give Tenant written notice of any ("Monetary Default") under this
Lease and Tenant shall have ten (10) days from receiving such notice, to satisfy
any ("Monetary Default") before Landlord shall consider Tenant in actual
default, except that landlord shall only be required to give notice to Tenant
under this paragraph a maximum of two (2) time per any 12 month period.
15. Operating Cost Exclusions:
--------------------------
In addition of the exclusions set forth in paragraph 5.3 of the Lease, Operating
---
Costs of the Building shall exclude the following:
A) Cost of decorating, redecorating, or special cleaning or other services not
provided on a regular basis to tenants of the Building, unless such
decorating, redecorating or special cleaning are typical and customary in
common areas of first-class office buildings in the market;
B) Wages, salaries, fees and fringe benefits paid to administrative of
executive personnel or officers or partners of Landlord unless employed at
competitive rates as independent contractors;
C) Any charge for depreciation of the Building or equipment;
D) Any charge for Landlords income, excess profit, franchise, inheritance,
gift, transfer, excise or profit taxes, or capital levies on Landlord's
business and any late payment charges or penalties with regard thereto;
E) All costs relating to activities for the solicitation and execution of
leases of space in the Building;
F) All costs for which Tenant or other tenants in the Building are being
charged other than pursuant to paragraph 5.3 of the Lease;
---
G) The cost of any repairs made by Landlord because of the total or partial
destruction of the Building or the condemnation of a portion of the
Building;
H) Any increases in insurance premiums to the extent that such increase is
caused or attributable to the use of the Building by any tenant other than
Tenant;
I) The cost of any items for which Landlord is reimbursed by insurance;
J) The cost of any repairs, alterations, additions, changes, replacements,
and other items which under generally accepted accounting principles are
properly classified as capital expenditures to the extent they upgrade or
improve the Building as opposed to replace existing items which have worn
out;
K) The cost of repairing construction defects, replacement of the roof,
resurfacing the parking structure and exterior glass replacement;
L) Any Operating Costs of the Building representing an amount paid to a
related corporation, entity, or person which is in excess of the amount
which would be paid in the absence of such relationship;
M) The cost of tools and equipment used initially in the construction of the
Building;
N) The cost of any work or service performed for or facilities furnished to
any tenant of the Building to a greater extent or in a manner more
favorable to such tenant than that performed for or furnished to Tenant;
O) The cost of alterations of space in the Building leased to other tenants;
P) The cost of overtime or other expense to Landlord in curing its defaults
or performing work expressly provided in this Lease to be borne at
Landlord's expense; and
Q) Capital improvements or expenditures incurred to reduce expenses shall be
included in Operating Costs of the Building to the lesser of the annual
amortized amount of said improvements or expenditures (over the useful
life of the improvement or item) or the actual savings.
16. Landlord's Representation and Warranty:
--------------------------------------
Landlord represents and warrants, to the best actual knowledge of Landlord,
without inquiry, that:
(1) except as stated in the preliminary site assessment dated June 25,
1991 attached hereto, no Hazardous Substances are now or have ever been located,
produced, treated, stored, transported, incorporated, discharged, emitted,
released, deposited or disposed of in, upon, under, over or from the Property by
Landlord except for Hazardous Substances utilized in conjunction with office
equipment and systems or cleaning supplies; and
(2) neither the Property nor any part there of is in violation of any
Environment Law.
17. Landlord's Indemnification:
--------------------------
▇▇▇▇▇▇▇▇ shall indemnify, defend and hold Tenant harmless against any and all
liability to any third person not a party to this Lease for any and all actions,
claims, demands, judgements, penalties, liabilities, costs, damages and
expenses, including court costs and attorney's fees incurred by ▇▇▇▇▇▇, directly
or indirectly, resulting from the existence of any Hazardous Substances in,
upon, under, over or from the Property, unless such Hazardous Substances is
deposited in, upon, under, over or from the Property by Tenant. Each of the
representations and warranties of Landlord set forth within paragraph 16 above
--
and all of Landlord's obligations under this paragraph shall expire on the last
day of the second year after the expiration or earlier termination date of this
Lease.
18. Interruption of Services:
------------------------
Notwithstanding anything to the contrary set forth within the Lease, in the
event any of the services set forth in paragraph 9 of the Lease are interrupted
--
and are not restored within seven (7) business days after Landlord's receipt of
Tenant's written notice, Tenant may ▇▇▇▇▇ payments of Base Rent provided that
(1) the ability to restore the interrupted services is within the reasonable
control of Landlord, and (2) Tenant's ability to use the Demised Premises is
materially interrupted. Tenant's Base Rent abatement period shall last only for
the period of time during which ▇▇▇▇▇▇'s use of the Demised Premises is
materially interrupted.
19. Tenant's Remedy for Landlord's Failure to Repair Maintain the Building:
----------------------------------------------------------------------
In the event Landlord fails to make any repairs, alterations or improvements
within seven (7) business days after receipt of Tenant's written notice, Tenant
may ▇▇▇▇▇ payments of Base Rent provided that (1) the ability to make the
repair, alteration or improvement is within the reasonable control of Landlord,
and (2) Tenant's ability to use the Demised Premises is materially interrupted.
Tenant's Base Rent abatement period shall last only for the period of time
during which ▇▇▇▇▇▇'s use of the Demised Premises is materially interrupted.
LANDLORD: TENANT:
CROSSTOWN BUILDING PARTNERS, THE MONEY STORE INC.,
A CALIFORNIA LIMITED PARTNERSHIP A NEW JERSEY CORPORATION
By: Delta Service Development, Inc.,
its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------- -------------------------------
Its: President Its: Senior Vice President
-------------------------------- -------------------------------
Date: 5/18/95 Date:
------------------------------- ------------------------------
EXHIBIT "A"
That real property situated in the City of Sacramento, County of Sacramento,
State of California, described as follows:
PARCEL NO. 1:
The North one-half of Lot 1 in the Block bounded by "N" and "O", 21st and 22nd
Streets of the City of Sacramento, according to the official map or plan
thereof; and
The West one-half of Lot 2 in the Block bounded by "N" and "O", 21st and 22nd
Streets of the City of Sacramento, according to the official map or plan
thereof.
PARCEL NO. 2:
The East one-half of Lot 3 in the Block bounded by "N" and "O", 21st and 22nd
Streets of the City of Sacramento, according to the official map or plan
thereof.
EXHIBIT C
Exhibit C is intentionally omitted, as Tenant is leasing the premises "as is".
Where the context allows, any references in the Lease to improvements to be
constructed pursuant to "Exhibit C" of the Lease shall be deemed to be the
improvements to be constructed by Tenant at Tenant's sole expense. Note that
any and all improvements must be first be approved by Landlord, in writing.
CROSSTOWN BUILDING
RULES AND REGULATIONS
1. No sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed or printed or affixed on or to any part of the outside of
the Building without the written consent of Landlord first had and obtained, and
Landlord shall have the right to remove any such sign, placard, picture,
advertisement, name or notice without notice to and at the expense of Tenant.
All approved signs or lettering on doors shall be printed, painted, affixed
or inscribed at the expense of Tenant by a person approved of by Landlord.
Tenant shall not place anything or allow anything to be placed near the
glass of any window, door, partition or wall which may appear unsightly from
outside the Premises; provided, however, that Landlord may furnish and install a
Building standard window covering at all exterior windows. Tenant shall not,
without prior written consent of Landlord, cause or otherwise sunscreen any
window.
2. The sidewalks, halls, passages, exits, entrances, elevators and
stairways shall not be obstructed by any of the tenants or used by them for any
purpose other than for ingress or egress from their respective Premises.
3. Tenant shall not alter any lock or install any new or additional locks
or any bolts on any doors or windows of the Premises.
4. The toilet rooms, urinals, wash bowls and other apparatus shall not be
used for any purpose other than that for which they were constructed, and no
foreign substances of any kind whatsoever shall be thrown therein, and the
expense of any breakage, stoppage or damage resulting from the violation of this
rule shall be borne by the Tenant who or whose employees or invitees shall have
caused it.
5. Tenant shall not overload the floor of the Premises or in any way deface
the Premises or any part thereof.
6. No freight or equipment of any kind being so large or heavy as to
potentially risk the structural integrity, including without limitation the
floor load capacity, of the Building shall be brought into the Building without
prior notice to and approval of Landlord, and all moving of the same into or out
of the Building shall be done at such time and in such manner as
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Landlord shall designate. Landlord shall have the right to prescribe the
weight, size and position of all safes and other heavy equipment brought into
the Building. Safes or other heavy objects shall, if considered necessary by
Landlord, stand on supports of such thickness as is necessary to properly
distribute the weight. Landlord will not be responsible for loss of or damage
to any such safe or property from any cause, and all damage done to the Building
by moving or maintaining any safe or other property shall be repaired at the
expense of Tenant.
7. Tenant shall not use, keep, or permit to be used or kept, any foul or
noxious gas or substances in the Premises, or permit or suffer the Premises to
be occupied or used in a manner offensive or objectionable to the Landlord and
other occupants of the Building by reason of noise, odors and/or vibrations, or
interfere in any way with other tenants or those having business therein, nor
shall any animals or birds be brought in or kept in or about the Premises or
Building.
8. No cooking shall be done or permitted by any Tenant on the Premises,
except in areas designated and designed for such use and approved by Landlord,
such as a lunch or break room, nor shall the Premises be used for storage of
merchandise, for washing clothes, for lodging, or for any improper,
objectionable or immoral purposes.
9. Tenant shall not use or keep in the Premises or the Building any
kerosene, gasoline or inflammable or combustible fluid or material, or use any
method of heating or air conditioning other than: 1) that supplied by Landlord,
or 2) any fluids or materials necessary for Tenant's ordinary course of
business, including photographic (dark room) or photocomposition chemicals or
other materials.
10. ▇▇▇▇▇▇▇▇ will direct electricians as to where and how telephone and
telegraph wires are to be introduced. No boring or cutting for wires will be
allowed without the consent of Landlord. The location of telephones, call boxes
and other office equipment affixed to the Premises shall be subject to approval
of Landlord.
11. On Saturdays, Sundays and legal holidays, and on other days between
the hours of 6:00 p.m. and 8:00 a.m. the following day, access to the Building,
or to the halls, corridors, elevators and stairways in the Building, or to the
Premises, may be refused unless the person seeking access is known to the person
or employee of the Building in charge and has a pass or is properly identified.
The Landlord shall in no case be liable for damages for any error with regard to
the admission to or exclusion from the Building of any person. In case of
invasion,
-2-
mob, riot, public excitement, or other commotion, the Landlord reserves the
right to prevent access to the Building during the continuance of the same by
closing of the doors or otherwise, for the safety of the tenants and the
protection of property in the Building.
12. Landlord reserves the right to exclude or expel from the Building any
person who, in the judgment of the Landlord, is intoxicated or under the
influence of liquor or drugs, or who shall in any manner do any act in violation
of any of the rules and regulations of the Building.
13. No vending machines, regardless of product, will be installed,
maintained, operated upon the Premises without the written consent of Landlord.
14. Landlord shall have the right, exercisable without notice and
without liability to Tenant, to change the name and street address of the
building of which the Premises are a part.
15. Tenant shall not disturb, solicit or canvass any occupant of the
Building and shall cooperate to prevent same.
16. Without the written consent of Landlord, Tenant shall not use the name
of the Building in connection with or in promoting or advertising the business
of Tenant except as ▇▇▇▇▇▇'s address.
17. Landlord shall have the right to control and operate the public
portions of the Building, the public facilities, the heating and air
conditioning, as well as facilities furnished for the common use of the tenants
in such manner as it deems best for the benefit of the tenants generally.
18. All entrance doors in the Premises shall be left locked when the
Premises are not in use, and all doors opening to public corridors shall be kept
closed except for normal ingress and egress from the Premises.
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