EXHIBIT 10.10
LEASE
(Single-Tenant; Net)
BETWEEN
THE IRVINE COMPANY
AND
NEW CENTURY MORTGAGE CORPORATION
(200 Commerce, Irvine, California)
INDEX TO LEASE
ARTICLE I. BASIC LEASE PROVISIONS
ARTICLE II. PREMISES
Section 2.1 Leased Premises
Section 2.2 Acceptance of Premises
Section 2.3 Building Name and Address
Section 2.4 Right of First Refusal
Section 2.5 Landlord's Responsibilities
ARTICLE III. TERM
Section 3.1 General/Early Occupancy
Section 3.2 Delay in Possession
Section 3.3 Right to Extend this Lease
ARTICLE IV RENT AND OPERATING EXPENSES
Section 4.1 Basic Rent
Section 4.2 Operating Expenses
Section 4.3 Security Deposit
ARTICLE V. USES
Section 5.1 Use
Section 5.2 Signs
Section 5.3 Hazardous Materials
ARTICLE VI. COMMON AREAS; SERVICES
Section 6.1 Utilities and Services
Section 6.2 Operation and Maintenance of Common Areas
Section 6.3 Use of Common Areas
Section 6.4 Parking
Section 6.5 Changes and Additions by Landlord
ARTICLE VII. MAINTAINING THE PREMISES
Section 7.1 Tenant's Maintenance and Repair
Section 7.2 Landlord's Maintenance and Repair
Section 7.3 Alterations
Section 7.4 Mechanic's Liens
Section 7.5 Entry and Inspection
ARTICLE VIII. TAXES AND ASSESSMENTS ON TENANT'S PROPERTY
ARTICLE IX. ASSIGNMENT AND SUBLETTING
Section 9.1 Rights of Parties
Section 9.2 Effect of Transfer
Section 9.3 Sublease Requirements
Section 9.4 Certain Transfers
ARTICLE X. INSURANCE AND INDEMNITY
Section 10.1 Tenant's Insurance
Section 10.2 Landlord's Insurance
Section 10.3 Tenant's Indemnity
Section 10.4 Landlord's Non-liability
Section 10.5 Waiver of Subrogation
ARTICLE XI. DAMAGE OR DESTRUCTION
Section 11.1 Restoration
Section 11.2 Lease Governs
ARTICLE XII. EMINENT DOMAIN
Section 12.1 Total or Partial Taking
Section 12.2 Temporary Taking
Section 12.3 Taking of Parking Area
ARTICLE XIII. SUBORDINATION; ESTOPPEL CERTIFICATE; FINANCIALS
Section 13.1 Subordination
Section 13.2 Estoppel Certificate
Section 13.3 Financials
(i)
ARTICLE XIV. DEFAULTS AND REMEDIES
Section 14.1 Tenant's Defaults
Section 14.2 Landlord's Remedies
Section 14.3 Late Payments
Section 14.4 Right of Landlord to Perform
Section 14.5 Default by Landlord
Section 14.6 Expenses and Legal Fees
Section 14.7 Waiver of Jury Trial
Section 14.8 Satisfaction of Judgment
ARTICLE XV. END OF TERM
Section 15.1 Holding Over
Section 15.2 Merger on Termination
Section 15.3 Surrender of Premises; Removal of Property
ARTICLE XVI. PAYMENTS AND NOTICES
ARTICLE XVII. RULES AND REGULATIONS
ARTICLE XVIII. BROKER'S COMMISSION
ARTICLE XIX. TRANSFER OF LANDLORD'S INTEREST
ARTICLE XX. INTERPRETATION
Section 20.1 Gender and Number
Section 20.2 Headings
Section 20.3 Joint and Several Liability
Section 20.4 Successors
Section 20.5 Time of Essence
Section 20.6 Controlling Law
Section 20.7 Severability
Section 20.8 Waiver and Cumulative Remedies
Section 20.9 Inability to Perform
Section 20.10 Entire Agreement
Section 20.11 Quiet Enjoyment
Section 20.12 Survival
ARTICLE XXI. EXECUTION AND RECORDING
Section 21.1 Counterparts
Section 21.2 Corporate and Partnership Authority
Section 21.3 Execution of Lease; No Option or Offer
Section 21.4 Recording
Section 21.5 Amendments
Section 21.6 Executed Copy
Section 21.7 Attachments
ARTICLE XXII MISCELLANEOUS
Section 22.1 Non-disclosure of Lease Terms
Section 22.2 Guaranty
Section 22.3 Changes Requested by Lender
Section 22.4 Mortgagee Protection
Section 22.5 Covenants and Conditions
Section 22.6 Security Measures
Section 22.7 Jams Arbitration
Section 22.8 Communications Equipment
EXHIBITS
Exhibit A Description of Premises
Exhibit A-1 Description of First Refusal Space
Exhibit A-2 Description of First Refusal Space
Exhibit B Environmental Questionnaire
Exhibit C Landlord's Disclosures
Exhibit D Insurance Requirements
Exhibit E Rules and Regulations
Exhibit F License Agreement
Exhibit X Work Letter
Exhibit Y Project Site Plan
Exhibit Y-1 Irvine Technology Center Site Plan (including future phases)
(ii)
LEASE
(Single-Tenant; Net)
THIS LEASE is made as of the __17th_ day of __June_________, 2002, by
and between THE IRVINE COMPANY, hereafter called "Landlord," and NEW CENTURY
MORTGAGE CORPORATION, a Delaware corporation, hereinafter called "Tenant."
ARTICLE I. BASIC LEASE PROVISIONS
Each reference in this Lease to the "Basic Lease Provisions" shall mean and
refer to the following collective terms, the application of which shall be
governed by the provisions in the remaining Articles of this Lease.
1. Premises: The Premises (more particularly described in Section 2.1)
consists of space located at 200 Commerce, Irvine, California
2. Project Description (if applicable): Irvine Technology V & VI
3. Use of Premises: General office, administration and origination, sales,
servicing and warehousing of loans.
4. Estimated Commencement Date: November 16, 2002.
5. Lease Term: Sixty (60) months, plus such additional days as may be required
to cause this Lease to terminate on the final day of the calendar month.
6. Basic Rent: Fifty Seven Thousand Seven Hundred Sixty Three Dollars
($57,763.00) per month, based on $1.32 per rentable square foot.
Basic Rent is subject to adjustment as follows:
Commencing twelve (12) months following the Commencement Date, the Basic
Rent shall be Fifty-Nine Thousand Nine Hundred Fifty OneDollars
($59,951.00) per month, based on $1.37 per rentable square foot.
Commencing twenty-four (24) months following the Commencement Date, the
Basic Rent shall be Sixty-Two Thousand One Hundred Thirty- Nine Dollars
($62,139.00) per month, based on $1.42 per rentable square foot.
Commencing thirty-six (36)months following the Commencement Date, the Basic
Rent shall be Sixty-Four Thousand Three Hundred Twenty-Seven Dollars
($64,327.00) per month, based on $1.47 per rentable square foot.
Commencing forty-eight (48) months following the Commencement Date, the
Basic Rent shall be Sixty-Six Thousand Five Hundred Fifteen Dollars
($66,515.00) per month, based on $1.52 per rentable square foot.
7. Guarantor(s): None
8. Floor Area of Premises: Approximately 43,760 rentable square feet Floor
Area of Project: Approximately 237,890 rentable square feet
9. Security Deposit: $36,583.00
10. Broker(s): ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
11. Additional Insureds: Insignia/ESG, Inc.
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12. Address for Payments and Notices:
LANDLORD TENANT
THE IRVINE COMPANY NEW CENTURY MORTGAGE CORPORATION
c/o Insignia/ESG, Inc. ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attn: General Counsel
with a copy of notices to:
THE IRVINE COMPANY
dba Office Properties
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Senior Vice President, Operations
Office Properties
13. Tenant's Liability Insurance Requirement: $2,000,000.00
14. Vehicle Parking Spaces: One Hundred Seventy-Five (175)
2
ARTICLE II. PREMISES
SECTION 2.1. LEASED PREMISES. Landlord leases to Tenant and Tenant leases
from Landlord the premises shown on EXHIBIT A attached hereto (the "Premises"),
---------
containing approximately the rentable square footage set forth as the "Floor
Area" in Item 8 of the Basic Lease Provisions. The Premises consist of all of
the rentable square footage within the building identified in Item 1 of the
Basic Lease Provisions (the Premises together with such building and the
underlying real property, are called the "Building"). The Building is located on
the site shown on Exhibit Y (the "Site"). All references to "Floor Area" in this
-
Lease shall mean the rentable square footage of the Premises as set forth in
Item 8 of the Basic Lease Provisions, and all references to "Project Floor Area"
shall mean the rentable square footage of all space within the Project as set
forth in Item 8 of the Basic Lease Provisions. The rentable square footages set
forth in Item 8 may include or have been adjusted by various factors, including,
without limitation, a load factor for any vertical penetrations, stairwells or
similar features or areas of the Building or of the Project buildings, as
applicable. Landlord and Tenant agree that the Floor Area set forth in Item 8
shall be binding on Landlord and Tenant for purposes of this Lease regardless of
whether any future or differing measurements of the Premises or the Building are
consistent or inconsistent with the Floor Area set forth in Item 8. The Project
Floor Area set forth in Item 8 may be adjusted in the event Landlord shall add
other buildings within Irvine Technology Center as shown in Exhibit Y-1 attached
-----------
hereto ("Irvine Technology Center") to the "Project"; provided that any such
addition shall be subject to the provisions of Section 6.5 of the Lease. Subject
to the terms and provisions of this Lease (including, without limitation the
provisions of Articles XI and XII hereof), Tenant shall have access to the
Premises and use of all systems and equipment serving the Building twenty-four
(24) hours per day, seven days per week.
SECTION 2.2. ACCEPTANCE OF PREMISES. Except as specifically set forth in
this Lease, Tenant acknowledges that neither Landlord nor any representative of
Landlord has made any representation or warranty with respect to the Premises or
the Building or the suitability or fitness of either for any purpose, including,
without limitation, any representations or warranties regarding zoning or other
land use matters, and that neither Landlord nor any representative of Landlord
has made any representations or warranties regarding (i) what other tenants or
uses may be permitted or intended in the Building and the Project, or (ii) any
exclusivity of use by Tenant with respect to its permitted use of the Premises
as set forth in Item 3 of the Basic Lease Provisions. Tenant further
acknowledges that neither Landlord nor any representative of Landlord has agreed
to undertake any alterations or additions or construct any improvements to the
Premises except as expressly provided in this Lease. The taking of possession or
use of the Premises by Tenant for any purpose other than construction shall
conclusively establish that the Premises and the Building were in satisfactory
condition and in conformity with the provisions of this Lease in all respects,
except for: (i) those matters which Tenant shall have brought to Landlord's
attention on a written punch list and (ii) Landlord's obligations under Section
2.5 hereof. The list shall be limited to any items required to be accomplished
by Landlord under the Work Letter attached as Exhibit X, and shall be delivered
---------
to Landlord within sixty (60) days after the term ("Term") of this Lease
commences as provided in Article III below. Nothing contained in this Section
shall affect the commencement of the Term or the obligation of Tenant to pay
rent, or Landlord's covenants and agreements set forth elsewhere in this Lease
or the repairs and services required of Landlord under this Lease. Landlord
shall complete all punch list items of which it is notified as provided above
within thirty (30) days following the delivery of the punch list to Landlord;
provided that Landlord shall diligently complete any punch list items which,
despite Landlord's diligence, cannot be completed within said thirty (30) days.
SECTION 2.3. BUILDING NAME AND ADDRESS. Tenant shall not utilize any name
selected by Landlord from time to time for the Building and/or the Project as
any part of Tenant's corporate or trade name. Landlord shall have the right to
change the name, address, number or designation of the Building or Project
without liability to Tenant; provided, however, if the address of the Building
and/or the Project is changed by Landlord, Landlord agrees to provide Tenant
with no less than ninety (90) days prior written notice and to reimburse Tenant
for all expenses reasonably incurred by Tenant in conjunction with such address
change (including, without limitation, the cost of changing Tenant's stationery
and of notifying Tenant's clients and customers of Tenant's new address), not to
exceed Five Thousand Dollars ($5,000.00) in the aggregate.
SECTION 2.4. RIGHT OF FIRST REFUSAL. Provided Tenant is not then in default
hereunder, Landlord hereby grants Tenant a one-time right of first refusal
("First Refusal Right") to lease all or a portion of the unleased space
(collectively, the "First Refusal Space") in: (a) the building known as ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, which contains approximately 34,160 rentable
square feet and is shown on EXHIBIT A-1 attached hereto, and (b) the building
-----------
known as ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, which contains approximately
53,360 rentable square feet, and is shown on EXHIBIT A-2 attached hereto, in
-----------
accordance with and subject to the provisions of this Section 2.4 At any time
following receipt by Landlord of a bona fide letter of intent proposal or other
written proposal setting forth terms upon which Landlord is willing to lease all
or a portion of the First Refusal Space, Landlord shall give Tenant written
notice of the term rent, operating expenses and tenant improvement allowance, if
any (the "Economic Terms") upon which Landlord has tentatively agreed with such
third party to lease the First Refusal Space. It is understood that should
Landlord have tentatively agreed to lease other space in addition to the First
Refusal Space as part of a single transaction, then Landlord's notice shall so
provide and all such space shall collectively be subject to the following
provisions. Within five (5) business days after receipt of Landlord's notice,
Tenant must give Landlord written notice pursuant to which Tenant shall elect to
(i) lease all, but not less than all, of the First Refusal Space specified in
Landlord's notice (the "Designated First Refusal Space") upon such Economic
Terms and the same non-Economic Terms as set forth in this Lease (except as
otherwise hereinafter provided); or (ii) decline to lease the Designated First
Refusal Space on such Economic and non-Economic Terms. In the event that Tenant
does not so respond in writing to Landlord's notice within said period, Tenant
shall be deemed to have elected clause (ii) above. Should Tenant decline, or be
deemed to
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have declined, to lease the Designated First Refusal Space as provided in the
foregoing, Landlord shall be free thereafter to lease the Designated First
Refusal Space plus or minus ten percent (10%) thereof to any third party within
the one hundred twenty (120) days following the notice of Economic Terms upon
material terms which are substantially the same as the Economic Terms. In the
event Landlord does not enter into a lease for the Designated First Right Space
plus or minus ten percent (10%) thereof within such one hundred twenty (120) day
period upon material terms which are substantially the same as the Economic
Terms, then prior to leasing such Designated First Right Space to any third
party, Landlord shall repeat the procedure of offering such space to Tenant in
accordance with the provisions of this Section. Once Landlord has offered any
such First Refusal Space to Tenant and then enters into a lease for such
Designated First Refusal Space plus or minus ten percent (10%) thereof, within
the following one hundred twenty (120) days, Tenant's rights under this Section
with respect to the space so leased shall terminate. Should Tenant timely elect
to lease the Designated First Refusal Space, Landlord shall promptly prepare and
deliver to Tenant an amendment to this Lease consistent with the foregoing, and
Tenant shall execute and return same to Landlord within ten (10) business days.
Tenant's failure to timely return the amendment shall entitle Landlord to
specifically enforce Tenant's commitment to lease the Designated First Refusal
Space, to lease such space to a third party, and/or to pursue any other
available legal remedy. If Tenant fails to comply with any of the provisions of
this paragraph, Tenant's First Refusal Right herein granted shall be thereupon
extinguished. Any attempt to assign or transfer any right of interest created by
this Section other than in connection with a transfer not requiring Landlord's
consent pursuant to Section 9.4 hereof shall be void from its inception.
Tenant's First Refusal Right herein granted shall be superior and prior to those
certain first refusal rights in and to the same First Refusal Space granted
pursuant to that certain lease of even date herewith by and between Landlord and
Tenant for the premises located at ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (the "210
----
Commerce Lease").
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SECTION 2.5. LANDLORD'S RESPONSIBILITIES.
(a) Landlord shall correct, repair or replace, at Landlord's sole cost and
expense and not as a Project Cost, any non-compliance of the Building(s) or the
Premises (including the Tenant Improvements) and the Common Areas with all
applicable building permits and codes in effect as of the Commencement Date,
including, without limitation, the provisions of Title III of the Americans With
Disabilities Act ("ADA") in effect as of the Commencement Date. Landlord shall
correct, repair or replace any non-compliance of the Building or the Premises
(including the Tenant Improvements) and the Common Areas with any laws enacted
or effective after the Commencement Date including, without limitation,
revisions or amendments to the ADA provided that the amortized cost of such
repairs or replacements (amortized over the useful life thereof using a market
cost of funds reasonably determined by Landlord) shall be included as Project
Costs payable by Tenant. All other ADA compliance issues which pertain to the
Premises, including, without limitation, those arising as a result of
construction by Tenant of any particular alteration or improvement in the
Premises (and any resulting ADA compliance requirements in the Common Areas),
and those that arise particularly as a result of the operation of Tenant's
business and employment practices in the Premises, shall be the responsibility
of Tenant at its sole cost and expense. The repairs, corrections or replacements
required of Landlord or of Tenant under the foregoing provisions of this Section
shall be made promptly following notice of non-compliance from any applicable
governmental agency. Tenant shall promptly forward any such notice that Tenant
receives to Landlord.
(b) Landlord agrees to repair, at its sole cost and expense and not as an
Operating Expense latent defects which arise in the structural components of the
roof and Building, including floor/ceiling slabs, columns, beams, walls and the
foundations and footings of the Building during the initial Term and any
extension of the Term pursuant to Section 3.3 of this Lease. If a non-compliance
with the foregoing warranty exists, Landlord shall, promptly after receipt of
the written notice from Tenant setting forth the nature and extent of such
non-compliance, rectify same at Landlord's sole cost and expense.
(c) If Tenant is required to make repairs to any component of the Premises
or any of its systems for which Landlord may have obtained a warranty, Landlord
shall, upon request by Tenant, use its good faith efforts to pursue its rights
under any such warranties for the benefit of Tenant. Landlord shall be under no
obligation to incur any expense in connection with asserting rights under such
warranties or guaranties against either the contractor or the manufacturer, but
shall use reasonable good faith efforts to enforce such warranties and
guaranties for Tenant's benefit.
ARTICLE III. TERM
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SECTION 3.1. GENERAL/EARLY OCCUPANCY. The Term shall be for the period
shown in Item 5 of the Basic Lease Provisions. Subject to the provisions of
Section 3.2 below, the Term shall commence ("Commencement Date") on the later to
occur of (i) forty-five (45) days following the date upon which all relevant
governmental authorities have approved the Tenant Improvements in accordance
with applicable building codes, as evidenced by written approval thereof in
accordance with the building permits issued for the Tenant Improvements or
issuance of a temporary or final certificate of occupancy for the Premises and
Tenant is provided with access to the entire Premises and the Tenant
Improvements shall have been "Substantially Completed" (as hereinafter defined),
or (ii) the Estimated Commencement Date set forth in Item 4 of the Basic Lease
Provisions. As used herein, "Substantially Completed" means that (1) the Tenant
Improvements have been completed in accordance with the approved Working
Drawings and Specifications except for minor details of construction, decoration
or mechanical adjustments, if any, the non-completion of which does not
materially interfere with Tenant's use of the Premises, and (2) all of the
Building's plumbing, heating, life safety, ventilating, air conditioning, and
electrical systems and equipment are in good operating condition to the extent
reasonably necessary for Tenant to enjoy the effective use of the Premises.
Prior to Tenant's taking possession of the Premises, the parties shall
memorialize on a form provided by Landlord the actual Commencement Date and the
expiration date ("Expiration Date") of this Lease. Tenant's failure to execute
that form shall not affect the validity of Landlord's determination of those
dates.
Landlord agrees that Tenant shall be permitted to occupy the Premises for
the conduct of its business operations therein for the forty-five (45) day
period following the date the Tenant Improvements are "Substantially Completed"
through the Commencement Date of this Lease, subject to the following terms and
conditions: (a) concurrently with the execution and delivery of this Lease, and
prior to any such early occupancy by Tenant, Tenant shall deliver to Landlord
(i) the first installment of Basic Rent and Operating Expenses due under the
Lease, (ii) the Security Deposit set forth in Item 9 of the Basic Lease
Provisions, and (iii) the required certificate(s) of insurance and a completed
Environmental Questionnaire (see Exhibit C attached hereto); and (b) Tenant's
occupancy of the Premises prior to the Commencement Date shall be subject to all
of the covenants and conditions on Tenant's part contained in this Lease
(including, without limitation, the covenants contained in Sections 5.3, 6.1,
7.1, 7.3, 7.4, 10.1 and 10.3 of the Lease), except for the obligation to pay
Basic Rent and Operating Expenses.
SECTION 3.2. DELAY IN POSSESSION. If Landlord, for any reason whatsoever,
cannot deliver possession of the Premises to Tenant on or before forty-five (45)
days prior to the Estimated Commencement Date, this Lease shall not be void or
voidable nor shall Landlord be liable to Tenant for any resulting loss or
damage. However, Tenant shall not be liable for any rent and the Commencement
Date shall not occur except as expressly provided in Section 3.1 above, except
that if Landlord's failure to deliver possession with the Tenant Improvements
"Substantially Completed" on or before forty-five (45) days prior to the
Estimated Commencement Date is attributable to any Tenant Delay described in the
Work Letter attached to this Lease, then the Commencement Date shall not be
advanced to the date which is forty-five (45) days following the date on which
possession of the Premises is tendered to Tenant, and Landlord shall be entitled
to full performance by Tenant (including the payment of rent) from the date
which is forty-five (45) days following the date which Landlord would have been
able to deliver the Premises to Tenant but for Tenant's delay(s). If for any
reason other than "Tenant Delays" (as defined in the Work Letter) or other
matters beyond Landlord's reasonable control, the Commencement Date has not
occurred by the date that is ninety (90) days following the Estimated
Commencement Date, then Tenant may, by written notice to Landlord given at any
time thereafter but prior to the actual occurrence of the Commencement Date,
elect to terminate this Lease. Notwithstanding the foregoing, if at any time
during the construction period, Landlord reasonably believes that the
Commencement Date will not occur on or before ninety (90) days following the
Estimated Commencement Date, Landlord shall notify Tenant in writing of such
fact and of a new outside date on or before which the Commencement Date will
occur, and Tenant must elect within ten (10) days of receipt of such notice to
either terminate this Lease or waive its right to terminate this Lease provided
the Commencement Date occurs on or prior to the new outside date established by
Landlord in such notice to Tenant. Tenant's failure to elect to terminate this
Lease within such ten (10) day period shall be deemed Tenant's waiver of its
right to terminate this Lease as provided in this paragraph as to the previous
outside date, but not as to the new outside date established by said notice. In
all events, Landlord shall diligently and in good faith construct the Tenant
Improvements in accordance with the requirements of the Work Letter attached
hereto.
SECTION 3.3. RIGHT TO EXTEND THIS LEASE.
(a) Provided that Tenant is not in default under any provision of this
Lease beyond the applicable cure period, either at the time of exercise of the
extension right granted herein or at the time of the commencement of such
extension, and provided further that Tenant and/or a Tenant's "Affiliate" (as
hereinafter defined) is occupying at least one (1) full floor of the Premises
and that Tenant has not assigned its interest in this Lease (other than in a
transaction not requiring Landlord's consent pursuant to Section 9.4 hereof),
then Tenant may extend the Term of this Lease for one (1) period of sixty (60)
months as provided in this Section 3.3. Tenant shall exercise its right to
extend the Term by and only by delivering to Landlord, not less than nine (9)
months or more than twelve (12) months prior to the expiration date of the Term,
Tenant's irrevocable written notice of its commitment to extend (the "Commitment
Notice"). The Basic Rent payable under the Lease during any extension of the
Term shall be determined as provided in the following provisions.
If Landlord and Tenant have not by then been able to agree upon the Basic
Rent for the extension of the Term, then within one hundred twenty (120) and
ninety (90) days prior to the expiration date of the Term, Landlord shall notify
Tenant in writing of the Basic Rent that would reflect the prevailing market
rental rate for a 60-month renewal of comparable space within the Project and
those other business parks described in the next succeeding paragraph (together
with any increases thereof during the extension period) as of the commencement
of the extension period ("Landlord's Determination"). Should Tenant disagree
with the Landlord's Determination, then Tenant shall, not later than twenty
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(20) days thereafter, notify Landlord in writing of Tenant's determination of
those rental terms ("Tenant's Determination"). Within ten (10) days following
delivery of the Tenant's Determination, the parties shall attempt to agree on an
appraiser to determine the fair market rental. If the parties are unable to
agree in that time, then each party shall designate an appraiser within ten (10)
days thereafter. Should either party fail to so designate an appraiser within
that time, then the appraiser designated by the other party shall determine the
fair market rental. Should each of the parties timely designate an appraiser,
then the two appraisers so designated shall appoint a third appraiser who shall,
acting alone, determine the fair market rental for the Premises. Any appraiser
designated hereunder shall have an MAI certification with not less than five (5)
years experience in the valuation of commercial industrial buildings in Orange
County, California.
Within thirty (30) days following the selection of the appraiser and such
appraiser's receipt of the Landlord's Determination and the Tenant's
Determination, the appraiser shall determine whether the rental rate determined
by Landlord or by Tenant more accurately reflects the fair market rental rate
for the 60-month renewal of the Lease for the Premises, as reasonably
extrapolated to the commencement of the extension period. Accordingly, either
the Landlord's Determination or the Tenant's Determination shall be selected by
the appraiser as the fair market rental rate for the extension period. In making
such determination, the appraiser shall consider rental comparables for the
Project, for subsequent phases of Irvine Technology Center and for similarly
improved space in comparable business parks in the Cities of Irvine and Tustin
(with appropriate adjustment for location and quality of project); provided,
however, that the appraiser shall not attribute any factor for brokerage
commissions in making its determination of the fair market rental rate, but
shall consider then current market tenant improvement allowances for lease
renewals and "second generation" leases of comparable term and size, and shall
take into account all other monetary and non-monetary concessions and factors in
evaluating such comparables, but not including the value of any specialized
improvements paid for by Tenant or which Tenant is required to remove at the end
of the Term. At any time before the decision of the appraiser is rendered,
either party may, by written notice to the other party, accept the rental terms
submitted by the other party, in which event such terms shall be deemed adopted
as the agreed fair market rental. The fees of the appraiser(s) shall be borne
entirely by the party whose determination of the fair market rental rate was not
accepted by the appraiser.
(b) Notwithstanding the foregoing, at any time during the period between
fifteen (15) and eleven (11) months prior to expiration of the Term (but prior
to the delivery of a Commitment Notice), Tenant may request in writing a written
rental quote of the terms upon which Landlord is willing to lease the Premises
to Tenant for the same 60-month extension term (an "Extension Term Rental
Offer"). Landlord shall notify Tenant of the terms of the Extension Term Rental
Offer within thirty (30) days following receipt of such written request from
Tenant. Tenant shall have the right for a period of ten (10) business days after
receipt of the Extension Term Rental Offer to accept that offer by written
notice to Landlord which notice would constitute Tenant's exercise of its right
to extend the Term upon the terms and conditions of this Lease but at the rental
rate set forth in the Extension Term Rental Offer. If Tenant elects to deliver a
Commitment Notice prior to requesting an Extension Term Rental Offer, fails to
request an Extension Term Rental Offer or fails to accept the Extension Term
Rental Offer within ten (10) business days after receipt thereof, Tenant shall
have no further rights under this subparagraph and provisions of subparagraph
(a) of this Section shall govern the determination of fair market rental for the
extension Term if Tenant elects to extend the Term in accordance with the
provisions of this Section.
(c) In the event Tenant elects to extend this Lease pursuant to either
subparagraph (a) or (b), within twenty (20) days after the determination of the
rent applicable to such extension, Landlord shall prepare an appropriate
amendment to this Lease for the extension period, and Tenant shall execute and
return same to Landlord within twenty (20) days. Should the fair market rental
not be established by the commencement of the extension period, then Tenant
shall continue paying rent at the rate in effect during the last month of the
initial Term, and a lump sum adjustment shall be made promptly upon the
determination of such new rental.
If Tenant fails to timely comply with any of the provisions of this Section
(other than a failure to appoint an appraiser), Tenant's right to extend the
Term shall be extinguished and the Lease shall automatically terminate as of the
expiration date of the Term, without any extension and without any liability to
Landlord. Any attempt to assign or transfer any right or interest created by
this Section shall be void from its inception other than in connection with a
transaction not requiring Landlord's consent pursuant to Section 9.4 hereof.
Tenant shall have no other right to extend the Term beyond the single sixty (60)
month extension period created by this paragraph. Unless agreed to in a writing
signed by Landlord and Tenant, any extension of the Term, whether created by an
amendment to this Lease or by a holdover of the Premises by Tenant, or
otherwise, shall be deemed a part of, and not in addition to, any duly exercised
extension period permitted by this Section.
SECTION 3.4. TENANT'S RIGHT TO TERMINATE. Provided that no Event of Default
has occurred and is continuing under any provision of this Lease at the time of
Tenant's exercise of it's "Right to Terminate" or on the "Termination Date" as
herein provided, Tenant shall have a one-time right to terminate this Lease as
to the Premises in its entirety (the "Right to Terminate"), upon the expiration
of the thirty-sixth (36th) month of the Term of this Lease (the "Termination
Date"). Tenant shall exercise its Right to Terminate by and only by delivery to
Landlord, not less than nine (9) months prior to the Termination Date, Tenant's
irrevocable written notice of its exercise of the Right to Terminate (the
"Termination Notice"). Concurrently with the giving of the Termination Notice,
Tenant shall pay to Landlord a termination fee in an amount equal to (i) all
unamortized costs of Landlord's "Completion Cost" of the "Standard Improvements
Work" defined in the Work Letter attached as Exhibit X to this Lease, (ii) all
unamortized costs of the Tenant Allowance defined in the Work Letter attached as
Exhibit X to this Lease, (iii) all unamortized costs of any broker's
commission(s) paid by Landlord to any real estate broker representing Tenant in
connection with this Lease, and (iv) one (1) month installment of the Basic Rent
at the then-current rate (collectively, the "Termination Fee"). If Tenant
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fails to timely exercise the Right to Terminate as herein provided, the Right to
Terminate shall be thereupon automatically extinguished and shall be of no
further force or effect. In calculating the unamortized costs described above,
the amortization shall be on a straight-line non-interest basis over the initial
Term. Tenant may request from Landlord the final Completion Cost of the Standard
Improvements Work and the amount of the brokerage commission(s) paid by Landlord
in connection with this Lease, at any time following substantial completion of
the Tenant Improvements Work pursuant to the attached Work Letter.
ARTICLE IV. RENT AND OPERATING EXPENSES
SECTION 4.1. BASIC RENT. From and after the Commencement Date, Tenant shall
pay to Landlord without deduction or offset, Basic Rent for the Premises in the
total amount shown (including subsequent adjustments, if any) in Item 6 of the
Basic Lease Provisions. Any rental adjustment shown in Item 6 shall be deemed to
occur on the specified monthly anniversary of the Commencement Date, whether or
not that date occurs at the end of a calendar month. The rent shall be due and
payable in advance commencing on the Commencement Date (as prorated for any
partial month) and continuing thereafter on the first day of each successive
calendar month of the Term. No demand, notice or invoice shall be required for
the payment of Basic Rent. An installment of rent in the amount of one (1) full
month's Basic Rent and Operating Expenses at the initial rate specified in Item
6 of the Basic Lease Provisions shall be delivered to Landlord concurrently with
Tenant's execution of this Lease and shall be applied against the Basic Rent
first due hereunder.
SECTION 4.2. OPERATING EXPENSES.
(a) Tenant shall pay to Landlord, as additional rent, Tenant's Share of
"Operating Expenses", as defined below, incurred by Landlord in the operation of
the Building and Project. The term "Tenant's Share" means one hundred percent
(100%) of Operating Expenses charged to the Building, as reasonably and
equitably determined by Landlord, plus that portion of an Operating Expense
determined by multiplying the cost of such item by a fraction, the numerator of
which is the Floor Area of the Premises and the denominator of which is the
Project Floor Area, as of the date on which the computation is made, for
Operating Expenses charged to the Project as reasonably and equitably determined
by Landlord.
(b) Commencing prior to the start of the first full "Expense Recovery
Period" (as defined below) of the Lease, and prior to the start of each full or
partial Expense Recovery Period thereafter, Landlord shall give Tenant a written
estimate of the amount of Tenant's Share of Operating Expenses for the Expense
Recovery Period. Tenant shall pay the estimated amounts to Landlord in equal
monthly installments, in advance, with Basic Rent. If Landlord has not furnished
its written estimate for any Expense Recovery Period by the time set forth
above, Tenant shall continue to pay cost reimbursements at the rates established
for the prior Expense Recovery Period, if any; provided that when the new
estimate is delivered to Tenant, Tenant shall, at the next monthly payment date,
pay any accrued cost reimbursements based upon the new estimate. For purposes
hereof, "Expense Recovery Period" shall mean every twelve month period during
the Term (or portion thereof for the first and last lease years) commencing July
1 and ending June 30.
(c) Within one hundred twenty (120) days after the end of each Expense
Recovery Period, Landlord shall furnish to Tenant a statement showing in
reasonable detail the actual or prorated Operating Expenses incurred by Landlord
during the period, and the parties shall within thirty (30) days thereafter make
any payment or allowance necessary to adjust Tenant's estimated payments, if
any, to the actual Tenant's Share as shown by the annual statement. Any delay or
failure by Landlord in delivering any statement hereunder shall not constitute a
waiver of Landlord's right to require Tenant to pay Tenant's Share of Operating
Expenses pursuant hereto. Any amount due Tenant shall be credited against
installments next coming due under this Section 4.2, and any deficiency shall be
paid by Tenant together with the next installment. If Tenant has not made
estimated payments during the Expense Recovery Period, any amount owing by
Tenant pursuant to subsection (a) above shall be paid to Landlord in accordance
with Article XVI. Should Tenant fail to object in writing to Landlord's
determination of actual Operating Expenses, or fail to give written notice of
its intent to audit Landlord's Operating Expenses pursuant to the provisions of
the next succeeding paragraph, within one hundred eighty (180) days following
delivery of Landlord's expense statement, Landlord's determination of actual
Operating Expenses for the applicable Expense Recovery Period shall be
conclusive and binding on the parties and any future claims to the contrary
shall be barred.
Provided no Event of Default has occurred and is continuing, Tenant shall
have the right to cause a certified public accountant (or other financial
professional), engaged on a non-contingency fee basis, to audit Operating
Expenses by inspecting Landlord's general ledger of expenses and related books
and records not more than once during any Expense Recovery Period. However, to
the extent that insurance premiums or any other component of Operating Expenses
is determined by Landlord on the basis of an internal allocation of costs
utilizing information Landlord in good ▇▇▇▇▇ ▇▇▇▇▇ proprietary, such expense
component shall not be subject to audit so long as it does not exceed the amount
per square foot typically imposed by landlords of other first class business
parks in the Cities of Irvine and Tustin, California. Tenant shall give notice
to Landlord of Tenant's intent to audit within one hundred eighty (180) days
after Tenant's receipt of Landlord's expense statement which sets forth Tenant's
Share of Landlord's actual Operating Expenses. Such audit shall be conducted at
a mutually agreeable time during normal business hours at the office of Landlord
or its management agent where such accounts are maintained. If Tenant's audit
determines that actual Operating Expenses have been overstated by more than five
percent (5%), then subject to Landlord's right to review and/or contest the
audit results, Landlord shall reimburse Tenant for the reasonable out-of-pocket
costs of such audit. Tenant's rent shall be appropriately adjusted to reflect
any overstatement in Operating Expenses. In the event of a
7
dispute between Landlord and Tenant regarding such audit, such dispute shall be
submitted and resolved by binding arbitration pursuant to Section 22.7 below.
All of the information obtained by Tenant and/or its auditor in connection with
such audit, as well as any compromise, settlement, or adjustment reached between
Landlord and Tenant as a result thereof, shall be held in strict confidence and,
except as may be required pursuant to litigation, shall not be disclosed to any
third party, directly or indirectly, by Tenant or its auditor or any of their
officers, agents or employees. Landlord may require Tenant's auditor to execute
a separate commercially reasonable confidentiality agreement affirming the
foregoing as a condition precedent to any audit. In the event of a violation of
this confidentiality covenant in connection with any audit, then in addition to
any other legal or equitable remedy available to Landlord, Tenant shall forfeit
its right to any reconciliation or cost reimbursement payment from Landlord due
to said audit (and any such payment theretofore made by Landlord shall be
promptly returned by Tenant), and Tenant shall have no further audit rights
under this Lease.
(d) Even though the Lease has terminated and the Tenant has vacated the
Premises, when the final determination is made of Tenant's Share of Operating
Expenses for the Expense Recovery Period in which the Lease terminates, Tenant
shall upon notice pay the entire increase due over the estimated expenses paid.
Conversely, any overpayment made in the event expenses decrease shall be rebated
by Landlord to Tenant.
(e) If, at any time during any Expense Recovery Period, any one or more of
the Operating Expenses are increased to a rate(s) or amount(s) in excess of the
rate(s) or amount(s) used in calculating the estimated expenses for the year,
then the estimate of Tenant's Share of Operating Expenses shall be increased for
the month in which such rate(s) or amount(s) becomes effective and for all
succeeding months by an amount equal to Tenant's Share of the increase. Landlord
shall give Tenant written notice of the amount or estimated amount of the
increase, the month in which the increase will become effective, Tenant's Share
thereof and the month for which the payments are due. Tenant shall pay the
increase to Landlord as a part of Tenant's monthly payments of estimated
expenses as provided in paragraph (b) above, commencing with the month in which
effective.
(f) The term "Operating Expenses" shall mean and include all "Project
Costs" (as hereafter defined) and "Property Taxes" (as hereafter defined).
(g) The term "Project Costs" shall include all expenses of operation and
maintenance of the Building and the Project, together with all appurtenant
Common Areas (as defined in Section 6.2), and shall include the following
charges by way of illustration but not limitation: water and sewer charges;
insurance premiums or reasonable premium equivalents should Landlord elect to
self-insure any risk that Landlord is authorized to insure hereunder; license,
permit, and inspection fees; heat; light; power; janitorial services to any
interior Common Areas; exterior trash pickup services (which Landlord agrees to
provide); air conditioning; supplies; materials; equipment; tools; the cost of
any environmental, insurance, tax or other consultant utilized by Landlord in
connection with services rendered by such consultant for the benefit of the
Building and/or Project; establishment of reasonable reserves for replacements
and/or repair of the Building and/or Common Area improvements, equipment and
supplies; costs incurred in connection with compliance of any laws or changes in
laws applicable to the Building or the Project (except for changes in laws that
pertain particularly to Tenant's use of the Premises and/or to the interior of
the Premises only which shall be the sole responsibility of Tenant at its cost)
as provided in Section 2.5; the cost of any "capital" repairs or replacements
(other than tenant improvements for specific tenants) to the extent of the
amortized amount thereof over the useful life of such "capital" repairs or
replacements calculated at a market cost of funds, all as determined by
Landlord, for each such year of useful life during the Term; costs associated
with the procurement and maintenance of an air conditioning, heating and
ventilation service agreement; costs associated with the maintenance of an
intrabuilding network cable service agreement for any intrabuilding network
cable telecommunications lines within the Project, and any other repair and
replacement costs associated with such lines; labor; reasonably allocated wages
and salaries, fringe benefits, and payroll taxes for administrative and other
personnel directly applicable to the Building and/or Project, including both
Landlord's personnel and outside personnel; any expense incurred pursuant to
Sections 6.1, 6.2, 6.4, 7.2, and 10.2; and a reasonable overhead/management fee
for the professional operation of the Project. It is understood that Project
Costs shall include competitive charges for direct services provided by any
subsidiary or division of Landlord.
(h) The term "Property Taxes" as used herein shall include the following:
(i) all real estate taxes, as such property taxes may be reassessed from time to
time; and (ii) other taxes, charges and assessments which are levied with
respect to this Lease or to the Building and/or the Project, and any
improvements, fixtures and equipment and other property of Landlord located in
the Building and/or the Project, except that general net income and franchise
taxes imposed against Landlord shall be excluded; and (iii) all assessments and
fees for public improvements, services, and facilities and impacts thereon,
including, without limitation, arising out of any Community Facilities
Districts, "▇▇▇▇▇ ▇▇▇▇" districts, similar assessment districts, and any traffic
impact mitigation assessments or fees; (iv) any tax, surcharge or assessment
which shall be levied in addition to or in lieu of real estate or personal
property taxes, other than taxes covered by Article VIII; and (v) costs and
expenses incurred in contesting the amount or validity of any Property Tax by
appropriate proceedings. Any Property Tax refunds shall be credited against
Property Taxes paid in the same Expense Recovery Period or refunded to Tenant to
the extent such refund is received after the Expense Recovery Period for which
the applicable Property Taxes were paid. Tenant shall not be charged for the
payment of any bonded indebtedness as a part of Property Taxes to the extent
that such indebtedness is paid in installments other than over the longest
possible term thereof.
(i) Notwithstanding the provisions of this Section 4.2 to the contrary,
Operating Expenses shall not include any of the following:
8
(1) Commissions, attorneys' fees, costs, disbursements and other
expenses incurred by Landlord or its agents in connection with negotiations
for leases with tenants, other occupants or prospective tenants or other
occupants of the Project, and similar costs incurred in connection with
disputes with and/or enforcement of any lease with tenants, other
occupants, or prospective tenants or other occupants of the Project;
(2) "Tenant allowances", "tenant concessions", work letter payments,
and other costs or expenses (including permit, license and inspection fees)
incurred in completing, fixturing, furnishing, renovating or otherwise
improving, decorating or redecorating space for tenants or other occupants
of the Project, or vacant, leasable space in the Project, including space
planning/interior design fees for same;
(3) Depreciation and other "non-cash" expense items;
(4) Except as specifically authorized in this Lease, costs of a
capital nature, including, but not limited to, capital additions, capital
improvements, capital alterations, capital replacements, capital equipment
and capital tools, and/or capital redesign;
(5) Services, items and benefits for which Tenant or any other tenant
or occupant of the Project specifically reimburses Landlord or for which
Tenant or any other tenant or occupant of the Project pays third persons;
(6) Costs or expenses (including fines, penalties and legal fees)
incurred due to the violation by Landlord of this Lease or of the leases of
other tenants in the Project, that would not have been incurred but for
such violation.
(7) Penalties for late payment of any Operating Expenses by Landlord,
including, without limitation, with respect to Property Taxes, equipment
leases, etc.;
(8) Payments in respect of overhead and/or profit to any subsidiary or
affiliate of Landlord, as a result of a non-competitive selection process
for services (other than the management fee) on or to the Project, or for
goods, supplies or other materials, to the extent that the costs of such
services, goods, supplies or materials exceed the costs that would have
been paid if the services, goods, supplies or materials had been provided
by parties unaffiliated with Landlord, of similar skill, competence and
experience, on a competitive basis;
(9) Payments of principal, finance charges or interest on debt or
amortization on any deed of trust or other debt encumbering the Project,
and rental payments (or increases in same) under any ground or underlying
lease or leases encumbering the Project (except to the extent the same may
be made to pay or reimburse, or may be measured by Property Taxes);
(10) Except for a management fee which is reasonable and commercially
competitive for similar projects in the area, costs of Landlord's general
overhead and general administrative expenses (individual, partnership or
corporate, as the case may be) and wages, salaries and other compensation
and benefits (as well as adjustments thereto) for all employees and
personnel of Landlord above the level of manager for the Project, which
costs would not be chargeable to Operating Expenses in accordance with
generally accepted accounting principles, consistently applied;
(11) Rentals and other related expenses, if any, incurred in leasing
air conditioning systems or other equipment ordinarily considered to be of
a capital nature, except equipment which is used in providing janitorial
services and which is not affixed to the Project and equipment which is
leased on a temporary basis in emergency situations;
(12) Advertising and promotional expenses;
(13) Costs or expenses for the acquisition of sculpture, paintings or
other works of art, but not the reasonable expenses of maintaining,
repairing and insuring same;
(14) Costs for which Landlord is compensated through or reimbursed by
insurance;
(15) Contributions to political or charitable organizations;
(16) Costs incurred in removing the property of former tenants and/or
other occupants of the Project;
(17) The costs of any "tap fees" or one-time lump sum sewer, water or
other utility connection fees for the Project;
(18) "In house" legal and/or accounting fees;
(19) Any costs for the fulfillment of obligations which are
specifically allocated to Landlord pursuant to the provisions of this
Lease;
(20) Except as set forth in Section 5.3 hereof, any costs related to
remediation, cleanup, removal, disposal, neutralization or other treatment
of Hazardous Materials;
9
(21) Expenses in connection with services, utilities or other benefits
of a type which are not standard for the Building and which are not
available to Tenant without specific charge therefor but which are provided
to another tenant or occupant of the Project; and
(22) Any costs associated with the construction or repair of any other
building within the Project.
SECTION 4.3. SECURITY DEPOSIT. The sum stated in Item 9 of the Basic Lease
Provisions shall be deducted and transferred to Landlord from the Security
Deposit currently being held by Landlord pursuant to its Industrial Lease with
Tenant for the premises located at 340 and ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇.
Such sum shall be held by Landlord as security for the full and faithful
performance of Tenant's obligations under this Lease (the "Security Deposit").
Subject to the last sentence of this Section, the Security Deposit shall be
understood and agreed to be the property of Landlord upon Landlord's receipt
thereof, and may be utilized by Landlord in its discretion towards the payment
of all prepaid expenses by Landlord for which Tenant would be required to
reimburse Landlord under this Lease, including, without limitation, brokerage
commissions and Tenant Improvement costs. Upon any default by Tenant after
expiration of the applicable cure period, including specifically Tenant's
failure to pay rent or to abide by its obligations under Sections 7.1 and 15.3
below, whether or not Landlord is informed of or has knowledge of the default,
the Security Deposit shall be deemed to be automatically and immediately
applied, without waiver of any rights Landlord may have under this Lease or at
law or in equity as a result of the default, as a setoff for full or partial
compensation for that default. If any portion of the Security Deposit is applied
after a default by Tenant, Tenant shall within fifteen (15) days after written
demand by Landlord deposit cash with Landlord in an amount sufficient to restore
the Security Deposit to its original amount. Landlord shall not be required to
keep this Security Deposit separate from its general funds, and Tenant shall not
be entitled to interest on the Security Deposit. If Tenant fully performs its
obligations under this Lease, the Security Deposit shall be returned to Tenant
(or, at Landlord's option, to the last assignee of Tenant's interest in this
Lease) within fifteen (15) days after the expiration of the Term, provided that
Landlord may retain the Security Deposit to the extent and until such time as
all amounts then due from Tenant in accordance with this Lease have been
determined and paid in full. The obligation of Landlord to return the unapplied
balance of the Security Deposit to Tenant in accordance with the terms of this
Lease shall be personal to Landlord and shall survive as an obligation of
Landlord notwithstanding any transfer of Landlord's interest in this Lease
unless and until such time as Landlord has complied with the provisions of
Section 1950.7 of the California Civil Code or any successor statute thereto.
ARTICLE V. USES
SECTION 5.1. USE. Tenant shall use the Premises only for the purposes
stated in Item 3 of the Basic Lease Provisions, all in accordance with
applicable laws and restrictions (subject to the provisions of Section 2.5) and
pursuant to approvals to be obtained by Tenant from all relevant and required
governmental agencies and authorities. The parties agree that any contrary use
shall be deemed to cause material and irreparable harm to Landlord and shall
entitle Landlord to injunctive relief in addition to any other available remedy.
Tenant, at its expense, shall procure, maintain and make available for
Landlord's inspection throughout the Term, all governmental approvals, licenses
and permits required for the proper and lawful conduct of Tenant's permitted use
of the Premises. Tenant shall not do or permit anything to be done in or about
the Premises which will in any way unreasonably interfere with the rights of
other occupants of the Building or the Project, or use or allow the Premises to
be used for any unlawful purpose, nor shall Tenant permit any nuisance or commit
any waste in the Premises or the Project. Tenant shall not perform any work or
conduct any business whatsoever in the Project other than inside the Premises.
Tenant shall not do or permit to be done anything which will invalidate or
increase the cost of any insurance policy(ies) covering the Building, the
Project and/or their contents (unless Tenant pays any such increase in cost),
and shall comply with all applicable insurance underwriters rules and the
requirements of the Pacific Fire Rating Bureau or any other organization
performing a similar function. Tenant shall comply at its expense with all
present and future laws, ordinances, restrictions, regulations, orders, rules
and requirements of all governmental authorities that pertain to Tenant or its
use of the Premises, including, without limitation, all federal and state
occupational health and safety requirements, whether or not Tenant's compliance
will necessitate expenditures or interfere with its use and enjoyment of the
Premises. Notwithstanding the foregoing, to the extent that construction or
rehabilitation of the Building structure or to the systems serving the Building
is required in connection with the foregoing compliance, Landlord shall perform
such construction or rehabilitation and the costs thereof, subject to the
limitations on "capital" repairs or replacements contained in Section 4.2(g),
shall be considered as part of "Project Costs" (except to the extent that such
compliance obligations (I) are triggered by or relate to Tenant's use of the
Premises for other than general office purposes, or (ii) are triggered by or
relate to particular alterations or improvements installed by Tenant in the
Premises, in which event Tenant shall perform all required construction and/or
rehabilitation at its sole cost and expense). Tenant shall comply at its expense
with all existing covenants, conditions, easements or restrictions now affecting
or encumbering the Building and/or Project, including, without limitation, the
payment by Tenant of any periodic or special dues or assessments charged against
the Premises or Tenant which may be allocated to the Premises or Tenant in
accordance with the provisions thereof. Tenant shall comply at its expense with
any future amendments or modifications to such existing covenants, conditions,
easements or reservations, and with any future covenants, conditions, easements
or restrictions hereafter affecting or encumbering the Building and/or the
Project, provided same do not materially impair Tenant's use and enjoyment of
the Premises or materially increase Tenant's obligations or materially decrease
Tenant's rights under this Lease. Tenant shall promptly upon demand reimburse
Landlord for any additional insurance premium charged by reason of Tenant's
failure to comply with the provisions of this Section, and shall indemnify
Landlord from any liability and/or expense resulting from Tenant's
noncompliance.
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SECTION 5.2. SIGNS. Provided Tenant continues to lease the entire Building,
Tenant shall have the exclusive right to two (2) exterior Building top signs on
the facades of the Building in the locations on such facades selected by Tenant,
subject to Landlord's right of prior approval that such exterior signage is in
compliance with the Signage Criteria (defined below). Except as provided in the
foregoing or as otherwise approved in writing by Landlord, in its sole
discretion, Tenant shall have no right to maintain identification signs in any
location in, on or about the Premises, the Building or the Project and shall not
place or erect any signs, displays or other advertising materials that are
visible from the exterior of the Building. The text of Tenant's signs may
include one or more of the following names or any combination thereof, provided
such entity is in fact conducting its business within the Premises and provided
such name is the legal name of such entity (or is a dba of Tenant): ▇▇▇▇▇▇▇.▇▇▇;
1800 ▇▇▇▇▇▇▇.▇▇▇; New Century; Prime West Funding; Western Capital Mortgage; New
Century Mortgage; New Century Mortgage Corporation. Should the name of Tenant be
legally changed to another name, Tenant shall be entitled to modify, at Tenant's
sole cost and expense, Tenant's signage to such new name, provided that any name
and/or logo on such signage does not materially devalue the Project as
determined by Landlord in its sole and absolute discretion. The size, design,
graphics, material, style, color and other physical aspects of any permitted
sign shall be subject to Landlord's written approval prior to installation
(which approval may be withheld in Landlord's discretion), all covenants,
conditions or restrictions encumbering the Premises, Landlord's signage program
for the Project, in effect at the time of installation and approved by the City
in which the Premises are located ("Signage Criteria"), and any applicable
municipal or other governmental permits and approvals. Tenant acknowledges
having received and reviewed a copy of the current Signage Criteria for the
Project. Tenant shall be responsible for the cost of any permitted sign,
including the fabrication, installation, maintenance and removal thereof. If
Tenant fails to maintain its sign, or if Tenant fails to remove same upon
termination of this Lease and repair any damage caused by such removal, Landlord
may do so at Tenant's expense.
SECTION 5.3. HAZARDOUS MATERIALS.
(a) For purposes of this Lease, the term "Hazardous Materials" includes (i)
any "hazardous materials" as defined in Section 25501(n) of the California
Health and Safety Code, (ii) any other substance or matter which results in
liability to any person or entity from exposure to such substance or matter
under any statutory or common law theory, and (iii) any substance or matter
which is in excess of permitted levels set forth in any federal, California or
local law or regulation pertaining to any hazardous or toxic substance, material
or waste.
(b) Tenant shall not cause or knowingly permit any Hazardous Materials to
be brought upon, stored, used, generated, released or disposed of on, under,
from or about the Premises (including, without limitation, the soil and
groundwater thereunder) without the prior written consent of Landlord.
Notwithstanding the foregoing, Tenant shall have the right, without obtaining
prior written consent of Landlord, to utilize within the Premises standard
office products that may contain Hazardous Materials (such as photocopy toner,
"White Out", and the like), provided however, that (i) Tenant shall maintain
----------------
such products in their original retail packaging, shall follow all instructions
on such packaging with respect to the storage, use and disposal of such
products, and shall otherwise comply with all applicable laws with respect to
such products, and (ii) all of the other terms and provisions of this Section
5.3 shall apply with respect to Tenant's storage, use and disposal of all such
products. Landlord may, in its sole discretion, place such conditions as
Landlord deems appropriate with respect to any such Hazardous Materials, and may
further require that Tenant demonstrate that any such Hazardous Materials are
necessary or useful to Tenant's business and will be generated, stored, used and
disposed of in a manner that complies with all applicable laws and regulations
pertaining thereto and with good business practices. Tenant understands that
Landlord may utilize an environmental consultant to assist in determining
conditions of approval in connection with the storage, generation, release,
disposal or use of Hazardous Materials requested for use by Tenant on or about
the Premises, and/or to conduct periodic inspections of the storage, generation,
use, release and/or disposal of such Hazardous Materials by Tenant on and from
the Premises, and Tenant agrees that any reasonable costs incurred by Landlord
in connection therewith shall be reimbursed by Tenant to Landlord as additional
rent hereunder upon demand if Tenant is in violation of its obligations under
this Section.
(c) Prior to the execution of this Lease, Tenant shall complete, execute
and deliver to Landlord an Environmental Questionnaire and Disclosure Statement
(the "Environmental Questionnaire") in the form of Exhibit B attached hereto.
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The completed Environmental Questionnaire shall be deemed incorporated into this
Lease for all purposes, and Landlord shall be entitled to rely fully on the
information contained therein. On each anniversary of the Commencement Date
until the expiration or sooner termination of this Lease, Tenant shall disclose
to Landlord in writing the names and amounts of all Hazardous Materials which
were stored, generated, used, released and/or disposed of on, under or about the
Premises for the twelve-month period prior thereto, and which Tenant desires to
store, generate, use, release and/or dispose of on, under or about the Premises
for the succeeding twelve-month period. In addition, to the extent Tenant is
permitted to utilize Hazardous Materials upon the Premises, Tenant shall
promptly provide Landlord with complete and legible copies of all the following
environmental documents relating thereto: reports filed pursuant to any
self-reporting requirements; permit applications, permits, monitoring reports,
workplace exposure and community exposure warnings or notices and all other
reports, disclosures, plans or documents (even those which may be characterized
as confidential) relating to water discharges, air pollution, waste generation
or disposal, and underground storage tanks for Hazardous Materials; orders,
reports, notices, listings and correspondence (even those which may be
considered confidential) of or concerning the release, investigation of,
compliance, cleanup, remedial and corrective actions, and abatement of Hazardous
Materials; and all complaints, pleadings and other legal documents filed by or
against Tenant related to Tenant's use, handling, storage, release and/or
disposal of Hazardous Materials.
(d) Landlord and its agents shall have the right, but not the obligation,
to inspect, sample and/or monitor the Premises and/or the soil or groundwater
thereunder at any time to determine whether Tenant is complying with the terms
of this Section 5.3, and in connection therewith Tenant shall provide Landlord
with full access to all relevant facilities,
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records and personnel after reasonable prior notice under the circumstances
except in the event of an emergency when no advance notice shall be required. If
Tenant is not in compliance with any of the provisions of this Section 5.3, or
in the event of a release of any Hazardous Material on, under or about the
Premises caused or knowingly permitted by Tenant, its agents, employees,
contractors, licensees or invitees, Landlord and its agents shall have the
right, but not the obligation, without limitation upon any of Landlord's other
rights and remedies under this Lease, to immediately enter upon the Premises
without notice and to discharge Tenant's obligations under this Section 5.3 at
Tenant's expense, including, without limitation, the taking of emergency or
long-term remedial action. Landlord and its agents shall endeavor to minimize
interference with Tenant's business in connection therewith, but shall not be
liable for any such interference. In addition, Landlord, at Tenant's expense,
shall have the right, but not the obligation, to join and participate in any
legal proceedings or actions initiated in connection with any claims arising out
of the storage, generation, use, release and/or disposal by Tenant or its
agents, employees, contractors, licensees or invitees of Hazardous Materials on,
under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the
Premises or the Project caused or knowingly permitted by Tenant or its agents,
employees, contractors, licensees or invitees results in (i) injury to any
person, (ii) injury to or any contamination of the Premises or the Project, or
(iii) injury to or contamination of any real or personal property wherever
situated, Tenant, at its expense, shall promptly take all actions necessary to
return the Premises and the Project and any other affected real or personal
property owned by Landlord to the condition existing prior to the introduction
of such Hazardous Materials and to remedy or repair any such injury or
contamination, including without limitation, any cleanup, remediation, removal,
disposal, neutralization or other treatment of any such Hazardous Materials.
Notwithstanding the foregoing, Tenant shall not, without Landlord's prior
written consent, take any remedial action in response to the presence of any
Hazardous Materials on, under or about the Premises or the Project or any other
affected real or personal property owned by Landlord or enter into any similar
agreement, consent, decree or other compromise with any governmental agency with
respect to any Hazardous Materials claims; provided however, Landlord's prior
written consent shall not be necessary in the event that the presence of
Hazardous Materials on, under or about the Premises or the Project or any other
affected real or personal property owned by Landlord (I) imposes an immediate
threat to the health, safety or welfare of any individual or (ii) is of such a
nature that an immediate remedial response is necessary and it is not possible
to obtain Landlord's consent before taking such action. To the fullest extent
permitted by law, Tenant shall indemnify, hold harmless, protect and defend
(with attorneys reasonably acceptable to Landlord) Landlord and any successors
to all or any portion of Landlord's interest in the Premises and the Project and
any other real or personal property owned by Landlord from and against any and
all liabilities, losses, damages, diminution in value, judgments, fines,
demands, claims, recoveries, deficiencies, costs and expenses (including,
without limitation, attorneys' fees, court costs and other professional
expenses), whether foreseeable or unforeseeable, arising directly or indirectly
out of the use, generation, storage, treatment, release, on- or off-site
disposal or transportation of Hazardous Materials on, into, from, under or about
the Premises, the Building and the Project and any other real or personal
property owned by Landlord caused or knowingly permitted by Tenant, its agents,
employees, contractors, licensees or invitees, specifically including, without
limitation, the cost of any required or necessary repair, restoration, cleanup
or detoxification of the Premises, the Building and the Project and any other
real or personal property owned by Landlord, and the preparation of any closure
or other required plans, whether or not such action is required or necessary
during the Term or after the expiration of this Lease. If Landlord at any time
discovers that Tenant or its agents, employees, contractors, licensees or
invitees may have caused or knowingly permitted the release of a Hazardous
Material on, under, from or about the Premises or the Project or any other real
or personal property owned by Landlord, Tenant shall, at Landlord's request,
immediately prepare and submit to Landlord a comprehensive plan, subject to
Landlord's approval, specifying the actions to be taken by Tenant to return the
Premises or the Project or any other real or personal property owned by Landlord
to the condition existing prior to the introduction of such Hazardous Materials.
Upon Landlord's approval of such cleanup plan, Tenant shall, at its expense, and
without limitation of any rights and remedies of Landlord under this Lease or at
law or in equity, immediately implement such plan and proceed to cleanup such
Hazardous Materials in accordance with all applicable laws and as required by
such plan and this Lease. The provisions of this subsection (e) shall expressly
survive the expiration or sooner termination of this Lease.
(f) Landlord hereby discloses to Tenant, and Tenant hereby acknowledges,
certain facts relating to Hazardous Materials at the Project known by Landlord
to exist as of the date of this Lease, as more particularly described in Exhibit
C attached hereto. Tenant shall have no liability or responsibility with respect
to the Hazardous Materials facts described in Exhibit C, nor with respect to any
Hazardous Materials which Tenant proves were not caused or knowingly permitted
by Tenant, its agents, employees, contractors, licensees or invitees.
Notwithstanding the preceding two sentences, Tenant agrees to notify its agents,
employees, contractors, licensees, and invitees of any exposure or potential
exposure to Hazardous Materials at the Premises that Landlord brings to Tenant's
attention.
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ARTICLE VI. COMMON AREAS; SERVICES
SECTION 6.1. UTILITIES AND SERVICES. Tenant shall be responsible for and
shall pay promptly, directly to the appropriate supplier, all charges for water,
gas, electricity, sewer, heat, light, power, telephone, refuse pickup,
janitorial service, interior landscape maintenance and all other utilities,
materials and services furnished directly to Tenant or the Premises or used by
Tenant in, on or about the Premises during the Term, together with any taxes
thereon. If at any time after the Commencement Date any utilities or services
are not separately metered or assessed to Tenant, Landlord shall make a
reasonable determination of Tenant's proportionate share of the cost of such
utilities and services and Tenant shall pay such amount to Landlord, as an item
of additional rent, within fifteen (15) days after receipt of Landlord's
statement or invoice therefor. Alternatively, Landlord may elect to include such
cost in the definition of Project Costs in which event Tenant shall pay Tenant's
proportionate share of such costs in the manner set forth in Section 4.2.
Landlord shall not be liable for damages or otherwise for any failure or
interruption of any utility or other service furnished to the Premises, and no
such failure or interruption shall be deemed an eviction or entitle Tenant to
terminate this Lease or withhold or ▇▇▇▇▇ any rent due hereunder. Landlord shall
at all reasonable times have free access to all electrical and mechanical
installations of Landlord. Notwithstanding the foregoing, if as a result of the
actions of Landlord, its agents, contractors or employees or the inactions of
Landlord if Landlord is required to act under this Lease, for more than three
(3) consecutive business days following written notice to Landlord there is no
HVAC service or electricity service to all or a portion of the Premises, or such
an interruption of other essential utilities and building services, such as fire
protection or water, so that all or a portion of the Premises cannot be used by
Tenant, then Tenant's obligation to pay Basic Rent and Operating Expenses (or an
equitable portion of such Basic Rent and Operating Expenses to the extent that
less than all of the Premises are affected) shall thereafter be abated until the
Premises are again useable by Tenant; provided, however, that if Landlord is
diligently pursuing the repair of such utilities or services and Landlord
provides substitute services reasonably suitable for Tenant's purposes, as for
example, bringing in portable air-conditioning equipment, then there shall not
be an abatement of Basic Rent or Operating Expenses. Any disputes concerning the
foregoing shall be resolved by JAMS arbitration pursuant to Section 22.7 of this
Lease. The foregoing provisions shall be Tenant's sole recourse and remedy in
the event of such an interruption of services, and shall not apply in the case
of the actions of parties other than Landlord, its employees, contractors or
authorized agents, or in case of damage to, or destruction of, the Premises,
which shall be governed by the provisions of Article XI of the Lease.
SECTION 6.2. OPERATION AND MAINTENANCE OF COMMON AREAS. During the Term,
Landlord shall operate, maintain and repair all Common Areas within the Building
and the Project. The term "Common Areas" shall mean all areas within the
exterior boundaries of the Building and other buildings in the Project which are
not held for exclusive use by persons entitled to occupy space, and all other
appurtenant areas and improvements provided by Landlord for the common use of
Landlord and tenants and their respective employees and invitees, including,
without limitation, parking areas and structures, driveways, sidewalks,
landscaped and planted areas, hallways and interior stairwells not located
within the premises of any tenant, common electrical rooms and roof access
entries, common entrances and lobbies, elevators, and restrooms not located
within the premises of any tenant.
SECTION 6.3. USE OF COMMON AREAS. The occupancy by Tenant of the Premises
shall include the use of the Common Areas in common with Landlord and with all
others for whose convenience and use the Common Areas may be provided by
Landlord, subject, however, to compliance with all reasonable and
non-discriminatory rules and regulations as are prescribed from time to time by
Landlord. Tenant shall also have the right to the use of two (2) existing
four-inch (4") conduits beneath the Common Areas to pull its cable through to
connect its other buildings leased in the Project; provided, however, that the
foregoing right is subject and subordinated to the rights for the use of those
same conduits contained in the 210 Commerce Lease. Such cable (but not the
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conduits) shall be removed by Tenant at its expense at the expiration or earlier
termination of this Lease. Landlord shall operate and maintain the Common Areas
in compliance with applicable law, consistent with the operation of comparable
projects in the area in which the Project is located and otherwise in the manner
Landlord may determine to be appropriate. All costs incurred by Landlord for the
maintenance and operation of the Common Areas shall be included in Project Costs
unless any particular cost incurred can be charged to a specific tenant of the
Project. Landlord shall at all times during the Term have exclusive control of
the Common Areas, and may restrain any use or occupancy, except as authorized by
Landlord's rules and regulations. Tenant shall keep the Common Areas clear of
any obstruction or unauthorized use related to Tenant's operations. Landlord may
temporarily close any portion of the Common Areas for repairs, remodeling and/or
alterations, to prevent a public dedication or the accrual of prescriptive
rights, or for any other reason deemed sufficient by Landlord, without liability
to Landlord; provided, however, that Landlord shall use commercially reasonable
efforts to avoid unreasonable interference with Tenant's access to or use of the
Premises in connection with such activities.
SECTION 6.4. PARKING. Tenant shall be entitled to the number of vehicle
parking spaces set forth in Item 14 of the Basic Lease Provisions, which spaces
shall be unreserved and unassigned, on those portions of the Common Areas
designated by Landlord for parking. Tenant shall not use more parking spaces
than such number. All parking spaces shall be used only for parking by vehicles
no larger than full size passenger automobiles or pickup trucks. Tenant shall
not permit or allow any vehicles that belong to or are controlled by Tenant or
Tenant's employees, suppliers, shippers, customers or invitees to be loaded,
unloaded or parked in areas other than those designated by Landlord for such
activities. If Tenant permits or allows any of the prohibited activities
described above, then Landlord shall have the right, without notice, in addition
to such other rights and remedies that Landlord may have, to remove or tow away
the vehicle involved and charge the costs to Tenant. Parking within the Common
Areas shall be limited to striped parking stalls, and no parking shall be
permitted in any driveways, access ways or in any area which would prohibit or
impede the free flow of traffic within the Common Areas. There shall be no
overnight parking of any vehicles of any kind for periods longer than 48 hours
unless otherwise authorized by Landlord, and vehicles which have been abandoned
or parked in violation
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of the terms hereof may be towed away at the owner's expense. Nothing contained
in this Lease shall be deemed to create liability upon Landlord for any damage
to motor vehicles of visitors or employees, for any loss of property from within
those motor vehicles, or for any injury to Tenant, its visitors or employees,
unless ultimately determined to be caused by the sole active negligence or
willful misconduct of Landlord. Landlord shall have the right to establish, and
from time to time amend, and to enforce against all users all reasonable and
non-discriminatory rules and regulations (including the designation of areas for
employee parking) that Landlord may deem necessary and advisable for the proper
and efficient operation and maintenance of parking within the Common Areas. The
foregoing right shall include, without limitation, the right to assess the
reasonable costs of such enforcement (including, without limitation, the
reasonable costs of designating and enforcing the use of any designated parking
areas for Tenant's employees, guests and invitees) directly to Tenant. Landlord
shall have the right to construct, maintain and operate lighting facilities
within the parking areas; to change the area, level, location and arrangement of
the parking areas and improvements therein; to restrict parking by tenants,
their officers, agents and employees to employee parking areas; to enforce
parking charges (by operation of meters or otherwise); and to do and perform
such other acts in and to the parking areas and improvements therein as, in the
use of good business judgment, Landlord shall determine to be advisable;
provided, however, that Landlord shall use commercially reasonable efforts to
avoid unreasonable interference with Tenant's access to or use of the Premises
in connection with such activities. Any person using the parking area shall
observe all directional signs and arrows and any posted speed limits. In no
event shall Tenant interfere with the use and enjoyment of the parking area by
other tenants of the Building or their employees or invitees. Parking areas
shall be used only for parking vehicles. Washing, waxing, cleaning or servicing
of vehicles, or the storage of vehicles for 24-hour periods, is prohibited
unless otherwise authorized by Landlord. Tenant shall be liable for any damage
to the parking areas caused by Tenant or Tenant's employees, suppliers,
shippers, customers or invitees, including, without limitation, damage from
excess oil leakage. Tenant shall have no right to install any fixtures,
equipment or personal property in the parking areas.
In addition to the vehicle parking spaces allocated to Tenant in Item 14 of
the Basic Lease Provisions, Landlord agrees that Tenant shall have the right to
the use of up to sixty-six (66) unreserved spaces in addition to the number of
vehicle parking spaces set forth in item 14 of the Basic Lease Provisions
("Additional Parking") at no additional rent payable by Tenant. The Additional
Parking shall initially be located within the Common Area of the Project, but
upon not less than 30-days prior written notice to Tenant, may be relocated to
any portion of those parking areas of the Irvine Technology Center shown on
EXHIBIT Y-1 attached hereto. The Additional Parking shall be subject to all of
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the provisions of this Section 6.4 (including, without limitation, Landlord's
rights to enforce reasonable rules and regulations as to the Additional Parking
as provided in this Section 6.4). The rights to the Additional Parking herein
granted are personal to Tenant, and any attempt by Tenant to assign or transfer
any right to the Additional Parking herein provided, other than to a Tenant's
"Affiliate", shall be void from its inception.
SECTION 6.5. CHANGES AND ADDITIONS BY LANDLORD. Landlord reserves the right
to make alterations or additions to the Building or the Project, or to the
attendant fixtures, equipment and Common Areas. Landlord may at any time
relocate or remove any of the various buildings, parking areas, and other Common
Areas, and may add buildings and areas to the Project from time to time. No
change shall entitle Tenant to any abatement of rent or other claim against
Landlord, provided that the change does not deprive Tenant of reasonable access
to or use of the Premises or the parking areas and does not materially increase
Tenant's obligations or materially decrease Tenant's rights under this Lease.
ARTICLE VII. MAINTAINING THE PREMISES
SECTION 7.1. TENANT'S MAINTENANCE AND REPAIR. Tenant at its sole expense
shall make all repairs necessary to keep the Premises in the condition as
existed on the Commencement Date (or on any later date that the improvements may
have been installed), excepting ordinary wear and tear, and, subject to the
provisions of Article XI, damage from casualty, including, without limitation,
all glass, windows, doors, door closures, hardware, fixtures, fire extinguisher
equipment and other equipment. Any damage or deterioration of the Premises shall
not be deemed ordinary wear and tear if the same could have been prevented by
good maintenance practices by Tenant. As part of its maintenance obligations
hereunder, Tenant shall, at Landlord's request, provide Landlord with copies of
all maintenance schedules, reports and notices prepared by, for or on behalf of
Tenant. All repairs shall be at least equal in quality to the original work,
shall be made only by a licensed contractor approved in writing in advance by
Landlord (which approval shall not be unreasonably withheld) and shall be made
only at the time or times approved by Landlord. Any contractor utilized by
Tenant shall be subject to Landlord's standard requirements for contractors, as
modified from time to time. Landlord may impose reasonable restrictions and
requirements with respect to repairs, as provided in Section 7.3, and the
provisions of Section 7.4 shall apply to all repairs. If Tenant fails to
properly maintain and/or repair the Premises as herein provided following
Landlord's notice and the expiration of the applicable cure period (or earlier
if Landlord determines that such work must be performed prior to such time in
order to avoid damage to the Premises or Building or other detriment), then
Landlord may elect, but shall have no obligation, to perform any repair or
maintenance required hereunder on behalf of Tenant and at Tenant's expense, and
Tenant shall promptly reimburse Landlord for all costs incurred upon submission
of an invoice.
SECTION 7.2. LANDLORD'S MAINTENANCE AND REPAIR. Subject to Section 7.1 and
Article XI, Landlord shall provide service, maintenance and repair with respect
to the structural components of the Building and the roof, foundations, and
footings of the Building, all landscaping, walkways, parking areas, Common
Areas, exterior lighting, the air conditioning, ventilating or heating equipment
and the electrical, mechanical and plumbing systems, servicing the Premises, and
the exterior surfaces of the exterior walls of the Building, except that Tenant
at its expense shall make all repairs which Landlord deems reasonably necessary
as a result of the negligence of Tenant, its agents,
14
employees, invitees, subtenants or contractors (unless and to the extent such
damage is covered by insurance carried or required to be carried by Tenant
pursuant to Article 10 and to which the waiver of subrogation is applicable).
Landlord shall have the right to employ or designate any reputable person or
firm, including any employee or agent of Landlord or any of Landlord's
affiliates or divisions, to perform any service, repair or maintenance function.
Landlord need not make any other improvements or repairs except as specifically
required by law, subject to the provisions of Section 2.5, or as required under
this Lease, and nothing contained in this Section shall limit Landlord's right
to reimbursement from Tenant for maintenance, repair costs and replacement costs
as provided elsewhere in this Lease. Tenant understands that it shall not make
repairs at Landlord's expense or by rental offset. Tenant further understands
that Landlord shall not be required to make any repairs to the roof,
foundations, footings, structural, electrical or mechanical systems unless and
until Tenant has notified Landlord in writing of the need for such repair and
Landlord shall have a reasonable period of time thereafter to commence and
complete said repair, if warranted. All costs of any maintenance and repairs on
the part of Landlord provided hereunder shall be considered part of Project
Costs.
SECTION 7.3. ALTERATIONS. Tenant shall make no alterations, additions or
improvements to the Premises without the prior written consent of Landlord,
which consent may be given or withheld in Landlord's sole discretion.
Notwithstanding the foregoing, Landlord shall not unreasonably withhold its
consent to any alterations, additions or improvements to the Premises which cost
less than One Dollar ($1.00) per square foot of the improved portions of the
Premises (excluding warehouse square footage) and do not (i) affect the exterior
of the Building or outside areas (or be visible from adjoining sites), or (ii)
affect or penetrate any of the structural portions of the Building, including,
but not limited to, the roof, or (iii) require any material change to the basic
floor plan of the Premises, any material change to any structural or mechanical
systems of the Premises, or (iv) interfere in any manner with the proper
functioning of or Landlord's access to any mechanical, electrical, plumbing or
HVAC systems, facilities or equipment located in or serving the Building, or (v)
diminish the value of the Premises. In addition, Tenant shall gave the right to
make alterations, additions or improvements to the Premises, without having to
obtain Landlord's consent which: (x) do not fall within the conditions
identified in subparagraphs (i) through (v) above; and (y) cost less than Fifty
Cents ($.50) per rentable square foot of the Premises determined annually (but
without carryover or compounding); provided that Tenant shall give Landlord
written notice of such changes which notice shall include a reasonably detailed
description thereof. Landlord may impose, as a condition to its consent, any
requirements that Landlord in its discretion may deem reasonable or desirable,
including, but not limited to, a requirement that all work be covered by a lien
and completion bond satisfactory to Landlord and reasonable requirements as to
the manner, time, and contractor for performance of the work; provided, however,
that Landlord may not require Tenant to provide any bonds in connection with any
particular alterations project which costs less than One Hundred Thousand
Dollars ($100,000.00). Tenant shall obtain all required permits for the work and
shall perform the work in compliance with all applicable laws, regulations and
ordinances, all covenants, conditions and restrictions affecting the Project,
and the Rules and Regulations (hereafter defined). Tenant understands and agrees
that Landlord shall be entitled to a supervision fee in the amount of five
percent (5%) of the cost of any work which requires a government permit. If any
governmental entity requires, as a condition to any proposed alterations,
additions or improvements to the Premises by Tenant, that improvements be made
to the Common Areas, and if Landlord consents to such improvements to the Common
Areas, then Tenant shall, at Tenant's sole expense, make such required
improvements to the Common Areas in such manner, utilizing such materials, and
with such contractors (including, if required by Landlord, Landlord's
contractors) as Landlord may require in its sole discretion. Under no
circumstances shall Tenant make any improvement which incorporates any Hazardous
Materials, including, without limitation, asbestos-containing construction
materials into the Premises. Any request for Landlord's consent shall be made in
writing and shall contain architectural plans describing the work in detail
reasonably satisfactory to Landlord. Unless Landlord otherwise agrees in
writing, all alterations, additions or improvements affixed to the Premises
(excluding moveable trade fixtures and furniture) shall become the property of
Landlord and shall be surrendered with the Premises at the end of the Term.
Landlord shall have the right to require Tenant to remove any alterations,
additions or improvements whether or not Landlord's consent was required unless
Landlord's written consent was obtained and at the time of providing its
consent, Landlord notified Tenant in writing that Tenant would not have to
remove such items upon the expiration or earlier termination of the Lease Term.
When reviewing any plans for alterations, additions or improvements submitted
for its approval, Landlord shall notify Tenant in writing whether Landlord shall
require Tenant to remove any or all of such improvements upon expiration or
earlier termination of this Lease. Tenant shall have the right upon expiration
or earlier termination of this Lease to remove any and all phone systems,
furniture, fixtures and other personal property at Tenant's sole cost and
expense provided that Tenant shall repair any damage caused by such removal.
Except as otherwise provided in this Lease or in any Exhibit to this Lease,
should Landlord make any alteration or improvement to the Premises at the
request of Tenant, Landlord shall be entitled to prompt reimbursement from
Tenant for all costs incurred. If Landlord withholds any consent required by
this Section 7.3, Landlord shall specify its reasons therefor. The provisions of
this Section 7.3 shall not be applicable to the initial Tenant Improvements Work
constructed pursuant to the attached Work Letter.
SECTION 7.4. MECHANIC'S LIENS. Tenant shall keep the Premises free from any
liens arising out of any work performed, materials furnished, or obligations
incurred by or for Tenant. Upon request by Landlord, Tenant shall promptly cause
any such lien to be released by posting a bond in accordance with California
Civil Code Section 3143 or any successor statute. In the event that Tenant shall
not, within thirty (30) days following the imposition of any lien, cause the
lien to be released of record by payment or posting of a proper bond, Landlord
shall have, in addition to all other available remedies, the right to cause the
lien to be released by any means it deems proper, including payment of or
defense against the claim giving rise to the lien. All expenses so incurred by
Landlord, including Landlord's attorneys' fees, and any consequential or other
damages incurred by Landlord arising out of such lien, shall be reimbursed by
Tenant promptly following Landlord's demand, together with interest from the
date of payment by Landlord at the maximum rate permitted by law until paid.
Tenant shall give Landlord no less than ten (10) business days prior notice in
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writing before commencing construction of any kind on the Premises so that
Landlord may post and maintain notices of non-responsibility on the Premises.
SECTION 7.5. ENTRY AND INSPECTION. Landlord shall at all reasonable times,
upon written or oral notice (except in emergencies, when no notice shall be
required) have the right to enter the Premises to inspect them, to supply
services in accordance with this Lease, to protect the interests of Landlord in
the Premises, and to submit the Premises to prospective or actual purchasers or
encumbrance holders (or, during the last one hundred and eighty (180) days of
the Term or when an uncured Tenant default exists, to prospective tenants), all
without being deemed to have caused an eviction of Tenant and without abatement
of rent except as provided elsewhere in this Lease. Tenant shall have the right
to have its employee or representative accompany Landlord on any such entry, and
Landlord shall exercise its rights under this Section reasonably and so as to
minimize interference with Tenant's business operations within the Premises.
Landlord shall have the right, if desired, to retain a key which unlocks all of
the doors in the Premises, excluding Tenant's vaults and safes, and Landlord
shall have the right to use any and all means which Landlord may deem proper to
open the doors in an emergency in order to obtain entry to the Premises, and any
entry to the Premises obtained by Landlord, in accordance with the terms of this
Section, shall not under any circumstances be deemed to be a forcible or
unlawful entry into, or a detainer of, the Premises, or any eviction of Tenant
from the Premises.
ARTICLE VIII. TAXES AND ASSESSMENTS ON TENANT'S PROPERTY
Tenant shall be liable for and shall pay prior to delinquency, all taxes
and assessments levied against all personal property of Tenant located in the
Premises, against all improvements to the Premises made by Landlord or Tenant
which are above Landlord's Project standard in quality and/or quantity for
comparable space within the Project determined by reference to the amount of
Landlord's Contribution to the Tenant Improvements completed pursuant to the
Work Letter ("Above Standard Improvements"), and against any alterations,
additions or like improvements made to the Premises by or on behalf of Tenant.
When possible Tenant shall cause its personal property, any Above Standard
Improvements and alterations to be assessed and billed separately from the real
property of which the Premises form a part. If any taxes on Tenant's personal
property, Above Standard Improvements and/or alterations are levied against
Landlord or Landlord's property and if Landlord pays the same, or if the
assessed value of Landlord's property is increased by the inclusion of a value
placed upon the personal property, Above Standard Improvements and/or
alterations of Tenant and if Landlord pays the taxes based upon the increased
assessment, Tenant shall pay to Landlord the taxes so levied against Landlord or
the proportion of the taxes resulting from the increase in the assessment. In
calculating what portion of any tax ▇▇▇▇ which is assessed against Landlord
separately, or Landlord and Tenant jointly, is attributable to Tenant's Above
Standard Improvements, alterations and personal property, Landlord's reasonable
determination shall be conclusive. To the extent that Landlord enforces the
terms of this Article VIII against Tenant, then Landlord shall not include in
Operating Expenses any taxes assessed against any other personal property or
Above Standard tenant improvements in the Project.
ARTICLE IX. ASSIGNMENT AND SUBLETTING
SECTION 9.1. RIGHTS OF PARTIES.
(a) Except as specifically authorized by Section 9.4 hereof, Tenant will
not, either voluntarily or by operation of law, assign, sublet, encumber, or
otherwise transfer all or any part of Tenant's interest in this lease, or permit
the Premises to be occupied by anyone other than Tenant, without Landlord's
prior written consent, which consent shall not unreasonably be withheld in
accordance with the provisions of Section 9.1(b). Except as specifically
authorized by Section 9.4 hereof, no assignment (whether voluntary, involuntary
or by operation of law) and no subletting shall be valid or effective without
Landlord's prior written consent and, at Landlord's election, any such
assignment or subletting or attempted assignment or subletting shall constitute
a material default of this Lease. Landlord shall not be deemed to have given its
consent to any assignment or subletting by any other course of action, including
its acceptance of any name for listing in the Building directory. To the extent
not prohibited by provisions of the Bankruptcy Code, 11 U.S.C. Section 101 et
--
seq., (the "Bankruptcy Code"), including Section 365(f)(1), Tenant on behalf of
---
itself and its creditors, administrators and assigns waives the applicability of
Section 365(e) of the Bankruptcy Code unless the proposed assignee of the
Trustee for the estate of the bankrupt meets Landlord's standard for consent as
set forth in Section 9.1(b) of this Lease. If this Lease is assigned to any
person or entity pursuant to the provisions of the Bankruptcy Code, any and all
monies or other considerations to be delivered in connection with the assignment
shall be delivered to Landlord, shall be and remain the exclusive property of
Landlord and shall not constitute property of Tenant or of the estate of Tenant
within the meaning of the Bankruptcy Code. Any person or entity to which this
Lease is assigned pursuant to the provisions of the Bankruptcy Code shall be
deemed to have assumed all of the obligations arising under this Lease on and
after the date of the assignment, and shall upon demand execute and deliver to
Landlord an instrument confirming that assumption.
(b) If Tenant desires to transfer an interest in this Lease other than
pursuant to Section 9.4 hereof, it shall first notify Landlord of its desire and
shall submit in writing to Landlord: (i) the name and address of the proposed
transferee; (ii) the nature of any proposed subtenant's or assignee's business
to be carried on in the Premises; (iii) the terms and provisions of any proposed
sublease or assignment, including a copy of the proposed assignment or sublease
form; (iv) a completed Environmental Questionnaire from the proposed assignee or
subtenant; and (v) any other information reasonably requested by Landlord and
reasonably related to the transfer. Except as provided in Subsection (c) of this
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Section, Landlord shall not unreasonably withhold its consent, provided: (1) the
use of the Premises will be consistent with the provisions of this Lease and
with Landlord's commitment to other tenants of the Building and Project; (2) the
proposed assignee or subtenant has not been required by any prior landlord,
lender or governmental authority to take remedial action in connection with
Hazardous Materials contaminating a property arising out of the proposed
assignee's or subtenant's actions or use of the property in question and is not
subject to any enforcement order issued by any governmental authority in
connection with the use, disposal or storage of a Hazardous Material and such
proposed transferee is requesting Landlord's consent to use Hazardous Materials
at the Premises; (3) at Landlord's election, insurance requirements shall be
brought into conformity with Landlord's then current leasing practice as
contemplated by Exhibit D; (4) any proposed subtenant or assignee demonstrates
---------
that it is financially responsible by submission to Landlord of all reasonable
information as Landlord may request concerning the proposed subtenant or
assignee, including, but not limited to, a balance sheet of the proposed
subtenant or assignee as of a date within ninety (90) days of the request for
Landlord's consent, statements of income or profit and loss of the proposed
subtenant or assignee for the two-year period preceding the request for
Landlord's consent, and/or a certification signed by the proposed subtenant or
assignee that it has not been evicted or been in arrears in rent at any other
leased premises for the 3-year period preceding the request for Landlord's
consent; (5) any proposed subtenant or assignee demonstrates to Landlord's
reasonable satisfaction a record of successful experience in business; (6) the
proposed assignee or subtenant is not an existing tenant at the Project or a
prospect with whom Landlord is negotiating in writing to become a tenant at the
Project, and Landlord has available space comparable to the space proposed for
transfer; and (7) the proposed transfer will not impose additional burdens or
adverse tax effects on Landlord unless Tenant assumes the obligation to pay the
cost thereof. Landlord shall not unreasonably withhold its consent to a transfer
of Tenant's exterior signage rights granted under this Lease in connection with
Tenant's assignment of this Lease or in connection with a subletting of the
entire Premises, provided that Landlord shall have the right of prior approval
that such signage continues to comply with the Sign Criteria and the other
requirements of Section 5.2 of this Lease, and provided further that any name
and/or logo on such signage does not materially devalue the Project as
determined by Landlord in its sole and absolute discretion.
If Landlord consents to the proposed transfer, Tenant may within ninety
(90) days after the date of the consent effect the transfer upon the terms
described in the information furnished to Landlord; provided that any material
change in the terms shall be subject to Landlord's consent as set forth in this
Section. Landlord shall approve or disapprove any requested transfer within
fifteen (15) business days following receipt of Tenant's written request, the
information set forth above, and the fee set forth below.
(c) Notwithstanding the provisions of Subsection (b) above, in lieu of
consenting to a proposed assignment of this Lease or to a proposed subletting of
one (1) floor or more of the Premises for greater than fifty percent (50%) of
the then remaining Term, Landlord may elect to terminate this Lease in the event
of such assignment or as to the portion of the Premises proposed to be so
subleased with a proportionate abatement in the rent payable under this Lease,
effective on the date that the proposed sublease or assignment would have become
effective. Landlord may thereafter, at its option, assign or re-let any space so
recaptured to any third party, including, without limitation, the proposed
transferee of Tenant.
(d) Tenant agrees that fifty percent (50%) of any amounts paid by the
assignee or subtenant attributable to this Lease, however described, in excess
of (i) the Basic Rent payable by Tenant hereunder, or in the case of a sublease
of a portion of the Premises, in excess of the Basic Rent reasonably allocable
to such portion, plus (ii) Tenant's direct out-of-pocket costs which Tenant
certifies to Landlord have been paid to provide occupancy related services to
such assignee or subtenant of a nature commonly provided by landlords of similar
space, plus (iii) out-of-pocket costs which Tenant certifies have been paid for
other economic concessions in connection with such assignment or subletting,
such as improvement/space planning allowances, moving expenses, rent abatement
periods, brokerage commissions, reasonable attorneys' fees, lease takeover
expenses, and the unamortized cost of any leasehold improvements to the Premises
made by Tenant at Tenant's expense, shall be the property of Landlord and such
amounts shall be payable directly to Landlord by the assignee or subtenant or,
at Landlord's option, by Tenant. At Landlord's request, a written agreement
shall be entered into by and among Tenant, Landlord and the proposed assignee or
subtenant confirming the requirements of this subsection.
(e) Tenant shall pay to Landlord a fee of Five Hundred Dollars ($500.00) if
and when any transfer hereunder is requested by Tenant. Such fee is hereby
acknowledged as a reasonable amount to reimburse Landlord for its costs of
review and evaluation of a proposed assignee/sublessee, and Landlord shall not
be obligated to commence such review and evaluation unless and until such fee is
paid.
SECTION 9.2. EFFECT OF TRANSFER. No subletting or assignment, even with the
consent of Landlord, shall relieve Tenant of its obligation to pay rent and to
perform all its other obligations under this Lease. Moreover, Tenant shall
indemnify and hold Landlord harmless, as provided in Section 10.3, for any act
or omission by an assignee or subtenant. Each assignee, other than Landlord,
shall be deemed to assume all obligations of Tenant under this Lease and shall
be liable jointly and severally with Tenant for the payment of all rent, and for
the due performance of all of Tenant's obligations, under this Lease arising
from and after the date of any such transfer. No transfer shall be binding on
Landlord unless any document memorializing the transfer is delivered to Landlord
and both the assignee/subtenant and Tenant deliver to Landlord an executed
consent to transfer instrument prepared by Landlord and consistent with the
requirements of this Article. The acceptance by Landlord of any payment due
under this Lease from any other person shall not be deemed to be a waiver by
Landlord of any provision of this Lease or to be a consent to any transfer.
Consent by Landlord to one or more transfers shall not operate as a waiver or
estoppel to the future enforcement by Landlord of its rights under this Lease.
17
SECTION 9.3. SUBLEASE REQUIREMENTS. The following terms and conditions
shall apply to any subletting by Tenant of all or any part of the Premises and
shall be deemed included in each sublease:
(a) Each and every provision contained in this Lease (other than with
respect to the payment of rent hereunder) is incorporated by reference into and
made a part of such sublease, with "Landlord" hereunder meaning the sublandlord
therein and "Tenant" hereunder meaning the subtenant therein.
(b) Tenant hereby irrevocably assigns to Landlord all of Tenant's interest
in all rentals and income arising from any sublease of the Premises, and
Landlord may collect such rent and income and apply same toward Tenant's
obligations under this Lease; provided, however, that until a default occurs in
the performance of Tenant's obligations under this Lease which continues beyond
the applicable cure period, Tenant shall have the right to receive and collect
the sublease rentals. Landlord shall not, by reason of this assignment or the
collection of sublease rentals, be deemed liable to the subtenant for the
performance of any of Tenant's obligations under the sublease. Tenant hereby
irrevocably authorizes and directs any subtenant, upon receipt of a written
notice from Landlord stating that an uncured default exists in the performance
of Tenant's obligations under this Lease, to pay to Landlord all sums then and
thereafter due under the sublease. Tenant agrees that the subtenant may rely on
that notice without any duty of further inquiry and notwithstanding any notice
or claim by Tenant to the contrary. Tenant shall have no right or claim against
the subtenant or Landlord for any rentals so paid to Landlord.
(c) In the event of the termination of this Lease, Landlord may, at its
sole option, take over Tenant's entire interest in any sublease and, upon notice
from Landlord, the subtenant shall attorn to Landlord. In no event, however,
shall Landlord be liable for any previous act or omission by Tenant under the
sublease or for the return of any advance rental payments or deposits under the
sublease that have not been actually delivered to Landlord, nor shall Landlord
be bound by any sublease modification executed without Landlord's consent or for
any advance rental payment by the subtenant in excess of one month's rent. The
general provisions of this Lease, including, without limitation, those
pertaining to insurance and indemnification, shall be deemed incorporated by
reference into the sublease despite the termination of this Lease.
SECTION 9.4. CERTAIN TRANSFERS. The sale of all or substantially all of
Tenant's assets (other than bulk sales in the ordinary course of business) or,
if Tenant is a privately held corporation, an unincorporated association, or a
partnership, the transfer, assignment or hypothecation of any stock or interest
in such corporation, association, or partnership in the aggregate of fifty
percent (50%) shall be deemed an assignment within the meaning and provisions of
this Article. Notwithstanding anything to the contrary contained in this Lease,
Tenant shall have the right, without obtaining Landlord's consent, (a) to assign
this Lease or sublet all or any part of the Premises to a parent, subsidiary or
affiliate of Tenant; (b) to assign this Lease or sublet all or any part of the
Premises to any entity which controls, is controlled by or under common control
with Tenant; (c) to assign this Lease or sublet all or any part of the Premises
to an entity into which Tenant is merged or by which it has been acquired; or
(d) to assign or sublet all or a portion of this Lease to an entity which
acquires all or substantially all of Tenant's business (all of the foregoing,
for purposes of this Lease, being defined as a "Affiliate") so long as (i) the
net worth of the successor entity after such merger, assignment or transfer is
equal to or greater than the net worth of Tenant immediately prior to the date
of such merger, assignment or transfer; (ii) Tenant shall provide to Landlord,
prior to (or as soon as legally permissible if disclosure of any such
transaction is restricted by securities or other law) such merger, assignment or
transfer, written notice thereof and such assignment documentation and other
information as Landlord may reasonably request in connection therewith, and
(iii) all of the terms and requirements of Section 9.2 and 9.3 (with respect to
subleases) shall apply to such sublease, assignment, merger or transfer, but
Landlord's rights under Section 9.1 of this Lease shall not apply thereto. For
purposes of this Section, the term "control" shall mean an equity or ownership
interest of fifty percent (50%) or more or the ability whether by ownership of
shares or other equity interest, by agreement or otherwise, to elect a majority
of the directors in the case of a corporation, or if not a corporation, to make
management decisions on behalf of the entity.
ARTICLE X. INSURANCE AND INDEMNITY
SECTION 10.1. TENANT'S INSURANCE. Tenant, at its sole cost and expense,
shall provide and maintain in effect the insurance described in Exhibit D.
---------
Evidence of that insurance must be delivered to Landlord prior to the
Commencement Date.
SECTION 10.2. LANDLORD'S INSURANCE. Landlord may, at its election, provide
any or all of the following types of insurance, with or without deductible and
in amounts and coverages as may be determined by Landlord in its discretion:
"all risk" property insurance, subject to standard exclusions, covering the
Building or Project, and such other risks as Landlord or its mortgagees may from
time to time deem appropriate, including Tenant Improvements made by Landlord,
and commercial general liability coverage. Landlord shall not be required to
carry insurance of any kind on Tenant's property, including leasehold
improvements, trade fixtures, furnishings, equipment, plate glass, signs and all
other items of personal property, and shall not be obligated to repair or
replace that property should damage occur. Tenant shall not be required to carry
insurance of any kind on Landlord's property subject to its obligation to pay as
an Operating Expense, Tenant's Share of insurance carried by Landlord as
provided in this Lease. All proceeds of insurance maintained by Landlord upon
the Building and Project shall be the property of Landlord, whether or not
Landlord is obligated to or elects to make any repairs. At Landlord's option,
Landlord may self-insure all or any portion of the risks for which Landlord
elects to provide insurance hereunder, but such self-insurance shall be
18
treated as a third party insurance policy for purposes of the waiver of
subrogation provisions of Section 10.5 of this Lease.
SECTION 10.3. JOINT INDEMNITY.
(a) To the fullest extent permitted by law and subject to the provisions of
Section 10.5, Tenant shall defend, indemnify, protect, save and hold harmless
Landlord, its agents, and any and all affiliates of Landlord, including, without
limitation, any corporations or other entities controlling, controlled by or
under common control with Landlord, from and against any and all claims,
liabilities, costs or expenses arising either before or after the Commencement
Date from Tenant's use or occupancy of the Premises, or from the conduct of its
business, or from any activity, work, or thing done, permitted or suffered by
Tenant or its agents, employees, invitees or licensees in or about the Premises,
or from any negligence or willful misconduct of Tenant or its agents, employees,
visitors, patrons, guests, invitees or licensees. In cases of alleged negligence
asserted by third parties against Landlord which arise out of, are occasioned
by, or in any way attributable to Tenant's, its agents, employees, contractors,
licensees or invitees use and occupancy of the Premises, or from the conduct of
its business or from any activity, work or thing done, permitted or suffered by
Tenant or its agents, employees, invitees or licensees on Tenant's part to be
performed under this Lease, or from any negligence or willful misconduct of
Tenant, its agents, employees, licensees or invitees, Tenant shall accept any
tender of defense for Landlord and shall, notwithstanding any allegation of
negligence or willful misconduct on the part of the Landlord, defend Landlord
and protect and hold Landlord harmless and pay all costs, expenses and
attorneys' fees incurred in connection with such litigation, provided that
Tenant shall not be liable for any such injury or damage, and Landlord shall
reimburse Tenant for the reasonable attorney's fees and costs for the attorney
representing both parties, all to the extent and in the proportion that such
injury or damage is ultimately determined by a court of competent jurisdiction
(or in connection with any negotiated settlement agreed to by Landlord) to be
attributable to the negligence or willful misconduct of Landlord. If the
attorney retained by Tenant or its insurer to defend Landlord and Tenant
reasonably determines he or she is legally or ethically precluded from
representing both Landlord and Tenant, Tenant shall at Tenant's sole cost and
expense, retain a separate attorney reasonably selected by Landlord to represent
Landlord in any such suit; provided, however, that to the extent and in the
proportion that the injury or damage which is the subject of the suit is
ultimately determined by a court of competent jurisdiction (or in connection
with any negotiated settlement agreed to by Landlord) to be attributable to the
negligence or willful misconduct of Landlord or a default by Landlord of its
obligations under this Lease, Landlord shall reimburse Tenant for the reasonable
legal fees and costs of the separate attorney retained by Tenant. The provisions
of this Subsection 10.3(a) shall expressly survive the expiration or sooner
termination of this Lease.
(b) To the fullest extent permitted by law, but subject to the express
limitations on liability contained in this Lease (including, without limitation,
the provisions of Sections 10.4 and 10.5 of this Lease), Landlord shall defend,
indemnify, protect, save and hold harmless Tenant, its agents and any and all
affiliates of Tenant, including, without limitation, any corporations, or other
entities controlling, controlled by or under common control with Tenant, from
and against any and all claims, liabilities, costs or expenses arising either
before or after the Commencement Date from any negligence or willful misconduct
in the operation, maintenance or repair of the Common Areas, the Project and/or
the Building by Landlord or its employees or authorized agents or a default by
Landlord of its obligations under this Lease. In cases of alleged negligence
asserted by third parties against Tenant which arise out of, are occasioned by,
or in any way attributable to the maintenance or repair of the Common Areas, the
Project or the Building by Landlord or its authorized agents or employees,
Landlord shall accept any tender of defense for Tenant and shall,
notwithstanding any allegation of negligence or willful misconduct on the part
of Tenant, defend Tenant and protect and hold Tenant harmless and pay all cost,
expense and attorneys' fees incurred in connection with such litigation,
provided that Landlord shall not be liable for any such injury or damage, and
Tenant shall reimburse Landlord for the reasonable attorney's fees and costs for
the attorney representing both parties, all to the extent and in the proportion
that such injury or damage is ultimately determined by a court of competent
jurisdiction (or in connection with any negotiated settlement agreed to by
Tenant) to be attributable to the negligence or willful misconduct of Tenant. If
the attorney retained by Landlord or its insurer to defend Landlord and Tenant
reasonably determines he or she is legally or ethically precluded from
representing both Landlord and Tenant Landlord shall at Landlord's sole cost and
expense, retain a separate attorney reasonably selected by Tenant to represent
Tenant in any such suit; provided, however, that to the extent and the
proportion that the injury or damage which is the subject of the suit is
ultimately determined by a court of competent jurisdiction (or in connection
with any negotiated settlement agreed to by Tenant) to be attributable to the
negligence or willful misconduct or Tenant, Tenant shall reimburse Landlord for
the reasonable legal fees and costs of the separate attorney retained by
Landlord. The provisions of this Subsection 10.3(b) shall expressly survive the
expiration or sooner termination of this Lease.
SECTION 10.4. LANDLORD'S NON-LIABILITY. Subject to the express indemnity
obligations of Section 10.3 (b) of this Lease, Landlord shall not be liable to
Tenant, its employees, agents and invitees, and Tenant hereby waives all claims
against Landlord for loss of or damage to any property, or any injury to any
person, or any other loss, cost, damage, injury or liability whatsoever
resulting from fire, explosion, falling plaster, steam, gas, electricity, water
or rain which may leak or flow from or into any part of the Building or from the
breakage, leakage, obstruction or other defects of the pipes, sprinklers, wires,
appliances, plumbing, air conditioning, electrical works or other fixtures in
the Building, whether the damage or injury results from conditions arising in
the Premises or in other portions of the Project. Notwithstanding any provision
of this Lease to the contrary, and regardless of the negligence or willful
misconduct of Landlord or its employees, or authorized agents or a default by
Landlord of its obligations under this Lease, Landlord shall in no event be
liable to Tenant, its employees, agents or invitees and Tenant hereby waives all
claims against Landlord, for loss or interruption of Tenant's business or income
(including, without limitation, any consequential damages and lost profit or
opportunity costs), or for any loss, cost, damage, injury or liability resulting
from Acts of God (except with respect to restoration obligations pursuant to
Article XI below), acts of civil disobedience or insurrection, acts or omissions
(criminal or otherwise) of any third parties, including, without limitation, any
other tenants within the
19
Project or their agents, employees, contractors, guests or invitees. It is
understood that any such condition may require the temporary evacuation or
closure of all or a portion of the Building. Except as provided in this Lease,
there shall be no abatement of rent and no liability of Landlord by reason of
any injury to or interference with Tenant's business (including, without
limitation, consequential damages and lost profit or opportunity costs) arising
from the making of any repairs, alterations or improvements to any portion of
the Building, including repairs to the Premises, nor shall any related activity
by Landlord constitute an actual or constructive eviction; provided, however,
that in making repairs, alterations or improvements, Landlord shall interfere as
little as reasonably practicable with the conduct of Tenant's business in the
Premises. Neither Landlord nor its agents shall be liable for interference with
light or other similar intangible interests. Tenant shall immediately notify
Landlord in case of fire or accident in the Premises, the Building or the
Project and of defects in any improvements or equipment.
SECTION 10.5. WAIVER OF SUBROGATION. Landlord and Tenant each hereby waives
all rights of recovery against the other and the other's agents on account of
loss and damage occasioned to the property of such waiving party to the extent
only that such loss or damage is insurable against under an "all risk" property
insurance policy; provided however, that the foregoing waiver shall not apply to
the extent of Tenant's obligation to pay Tenant's Share of deductibles under
policies maintained by Landlord as contemplated by this Lease. By this waiver it
is the intent of the parties that except as set forth in the immediately
preceding sentence, neither Landlord nor Tenant shall be liable to the other
party or any insurance company (by way of subrogation or otherwise) insuring the
other party for any loss or damage insurable under an "all-risk" property
insurance policy, even though such loss or damage might be occasioned by the
negligence of such party, its agents, employees, contractors, guests or
invitees.
ARTICLE XI. DAMAGE OR DESTRUCTION
SECTION 11.1. RESTORATION.
(a) If the Building or the Premises (including the Tenant Improvements
constructed pursuant to the Work Letter therein) are materially damaged,
Landlord shall repair that damage as soon as reasonably possible, at its
expense, unless: (i) Landlord reasonably determines that the cost of repair is
not covered by Landlord's fire and extended coverage insurance plus such
additional amounts Tenant elects, at its option, to contribute, excluding
however the deductible (for which Tenant shall be responsible for Tenant's
Share, such Share, however, not to exceed Fifty Thousand Dollars ($50,000.00)
for any particular casualty); (ii) Landlord reasonably determines that the
Premises cannot, with reasonable diligence, be fully repaired by Landlord (or
cannot be safely repaired because of the presence of hazardous factors,
including, without limitation, Hazardous Materials, earthquake faults, and other
similar dangers) within two hundred seventy (270) days after the date of the
damage; (iii) an event of default by Tenant has occurred and is continuing at
the time of such damage; or (iv) the damage occurs during the final twelve (12)
months of the Term unless Tenant then has the right to extend the Term of this
Lease and does so in accordance with the provisions of Section 3.3 hereof.
Should Landlord elect not to repair the damage for one of the preceding reasons,
Landlord shall so notify Tenant in writing within forty-five (45) days after the
damage occurs and this Lease shall terminate as of the date of that notice as to
the Building which was damaged; provided, however that if the remaining Premises
after such termination is less than an entire Building, Tenant shall have the
right to cause the Lease to be terminated as to the remainder of the Premises by
giving Landlord written notice within thirty (30) days after receipt of
Landlord's notice.
(b) Unless Landlord elects to terminate this Lease in accordance with
subsection (a) above, this Lease shall continue in effect for the remainder of
the Term; provided that so long as Tenant is not in default under this Lease
after expiration of the applicable cure period, (i) if the damage is so
extensive that Landlord reasonably determines that the Premises cannot, with
reasonable diligence, be repaired by Landlord (or cannot be safely repaired
because of the presence of hazardous factors, earthquake faults, and other
similar dangers) so as to allow Tenant's substantial use and enjoyment of the
Premises within two hundred seventy (270) days after the date of damage, or (ii)
the damage occurs during the final twelve (12) months of the Lease Term, then
Tenant may elect to terminate this Lease by written notice to Landlord within
the thirty days after receipt of Landlord's notice pursuant to subsection (a) as
to the Building which was damaged. In the event Tenant elects not to terminate
the Lease and the repairs are commenced but not completed within two hundred
seventy (270) days after the date of the damage, (the "Restoration Window"),
Tenant may by written notice to Landlord, terminate this Lease within fifteen
(15) days after the end of the Restoration Window. Notwithstanding the
foregoing, if at any time during the repair period, Landlord reasonably believes
that the restoration will not be completed prior to the end of the Restoration
Window, Landlord shall notify Tenant in writing of such fact and of a new
outside date on or before which the Premises shall be restored, and Tenant must
elect within ten (10) business days of receipt of such notice to either
terminate this Lease or waive its right to terminate this Lease provided the
Premises is restored on or prior to the new outside date established by Landlord
in such notice to Tenant. Tenant's failure to elect to terminate this Lease
within such ten (10) business day period shall be deemed Tenant's waiver of its
right to terminate this Lease as provided in this paragraph as to the previous
outside date, but not as to the new outside date established by said notice.
(c) Commencing on the date of any damage to the Building, and ending on the
sooner of the date the damage is repaired and the Premises is tendered to Tenant
in the same condition as required on the Commencement Date or the date this
Lease is terminated, the rental to be paid under this Lease shall be abated in
the same proportion that the floor area of the Premises that is rendered
unusable by the damage from time to time bears to the total floor area of the
Premises, but only to the extent that the business interruption insurance
required to be carried by Tenant as described in Exhibit D was then in force.
20
(d) In addition, the provisions of this Section shall not be deemed to
require Landlord to repair any improvements or fixtures that Tenant is obligated
to repair or insure pursuant to any other provision of this Lease.
(e) Tenant shall cooperate with Landlord in removing Tenant's personal
property and any debris from the Premises to facilitate all inspections of the
Premises and the making of any repairs. Notwithstanding anything to the contrary
contained in this Lease, if Landlord in good faith believes there is a risk of
injury to persons or damage to property from entry into the Building or Premises
following any damage or destruction thereto, Landlord may restrict entry into
the Building or the Premises by Tenant, its employees, agents and contractors in
a non-discriminatory manner, without being deemed to have violated Tenant's
rights of quiet enjoyment to, or made an unlawful detainer of, or evicted Tenant
from, the Premises, but subject to the applicability of the rental abatement
provisions. Upon request, Landlord shall consult with Tenant to determine if
there are safe methods of entry into the Building or the Premises solely in
order to allow Tenant to retrieve files, data in computers, and necessary
inventory, subject however to all indemnities and waivers of liability from
Tenant to Landlord contained in this Lease and any additional indemnities and
waivers of liability which Landlord may require.
SECTION 11.2. LEASE GOVERNS. Tenant agrees that the provisions of this
Lease, including, without limitation, Section 11.1, shall govern any damage or
destruction and shall accordingly supersede any contrary statute or rule of law.
ARTICLE XII. EMINENT DOMAIN
SECTION 12.1. TOTAL OR PARTIAL TAKING. If all or a material portion of the
Premises or access required for the use of the Premises is taken by any lawful
authority by exercise of the right of eminent domain, or sold to prevent a
taking, either Tenant or Landlord may terminate this Lease effective as of the
date possession is required to be surrendered to the authority. In the event
title to a portion of the Building or Project, other than the Premises, is taken
or sold in lieu of taking, and if such taking will materially and adversely
affect Tenant's use of the Premises, either party may terminate this Lease, by
written notice to the other party, effective on the date of vesting of title. In
the event neither party has elected to terminate this Lease as provided above,
then Landlord shall promptly, after receipt of a sufficient condemnation award,
proceed to restore the Premises to substantially their condition prior to the
taking, and a proportionate allowance shall be made to Tenant for the rent
corresponding to the time during which, and to the part of the Premises of
which, Tenant is deprived on account of the taking and restoration. In the event
of a taking, Landlord shall be entitled to the entire amount of the condemnation
award without deduction for any estate or interest of Tenant; provided that
nothing in this Section shall be deemed to give Landlord any interest in, or
prevent Tenant from seeking any award against the taking authority for, the
taking of personal property and fixtures belonging to Tenant or for relocation
or business interruption expenses recoverable from the taking authority.
SECTION 12.2. TEMPORARY TAKING. No temporary taking of the Premises shall
terminate this Lease or give Tenant any right to abatement of rent, and any
award specifically attributable to a temporary taking of the Premises shall
belong entirely to Tenant. A temporary taking shall be deemed to be a taking of
the use or occupancy of the Premises for a period of not to exceed ninety (90)
days.
SECTION 12.3. TAKING OF PARKING AREA. In the event there shall be a taking
of the parking area such that Landlord can no longer provide reasonable and
sufficient parking to comply with this Lease, Landlord, after reasonable prior
notice to Tenant, may substitute reasonably equivalent parking in a location
reasonably close to the Building; provided that if Landlord fails to make that
substitution prior to or substantially concurrently with the taking and if the
taking materially impairs Tenant's use and enjoyment of the Premises, Tenant
may, at its option, terminate this Lease by written notice to Landlord. If this
Lease is not so terminated by Tenant, there shall be no abatement of rent and
this Lease shall continue in effect.
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ARTICLE XIII. SUBORDINATION; ESTOPPEL CERTIFICATE; FINANCIALS
SECTION 13.1. SUBORDINATION. At the option of Landlord exercised in writing
to Tenant, this Lease shall be either superior or subordinate to all ground or
underlying leases, mortgages and deeds of trust, if any, which may hereafter
affect the Building, and to all renewals, modifications, consolidations,
replacements and extensions thereof; provided, that so long as Tenant is not in
default under this Lease beyond any applicable cure period, this Lease shall not
be terminated or Tenant's quiet enjoyment of the Premises disturbed in the event
of termination of any such ground or underlying lease, or the foreclosure of any
such mortgage or deed of trust, to which Tenant has subordinated this Lease
pursuant to this Section; and provided further, that Tenant shall be provided a
commercially reasonable non-disturbance and attornment agreement as a condition
to the exercise of any such subordination right. In the event of a termination
or foreclosure, Tenant shall become a tenant of and attorn to the
successor-in-interest to Landlord upon the same terms and conditions as are
contained in this Lease, and shall execute any reasonable instrument reasonably
required by Landlord's successor for that purpose. Tenant shall also, within
fifteen (15) days after request of Landlord, execute and deliver all
commercially reasonable instruments as may be required from time to time to
subordinate the rights of Tenant under this Lease to any future ground or
underlying lease or to the lien of any future mortgage or deed of trust
(provided that such instruments include commercially reasonable non-disturbance
and attornment provisions set forth above), or, if requested by Landlord, to
subordinate, in whole or in part, any ground or underlying lease or the lien of
any mortgage or deed of trust to this Lease. As of the date of this Lease,
Landlord represents that there exists no ground or underlying lease and no
mortgage or deed of trust affecting the Premises.
SECTION 13.2. ESTOPPEL CERTIFICATE.
(a) Tenant shall, at any time upon not less than fifteen (15) business days
prior written notice from Landlord, execute, acknowledge and deliver to
Landlord, in any form that Landlord may reasonably require, a statement in
writing (i) certifying that this Lease is unmodified and in full force and
effect (or, if modified, stating the nature of the modification and certifying
that this Lease, as modified, is in full force and effect) and the dates to
which the rental, additional rent and other charges have been paid in advance,
if any, and (ii) acknowledging that, to Tenant's knowledge, there are no uncured
defaults on the part of Landlord, or specifying each default if any are claimed,
and (iii) setting forth all further information that Landlord may reasonably
require. Tenant's statement may be relied upon by any prospective purchaser or
encumbrancer of all or any portion of the Building or Project.
(b) Notwithstanding any other rights and remedies of Landlord, Tenant's
failure to deliver any estoppel statement within the provided time shall be
conclusive upon Tenant that (i) this Lease is in full force and effect, without
modification except as may be represented by Landlord, (ii) there are no uncured
defaults in Landlord's performance, and (iii) not more than one month's rental
has been paid in advance.
(c) Landlord shall, at any time upon not less than fifteen (15) business
days' prior written notice from Tenant, execute, acknowledge and deliver to
Tenant, in any form that Tenant may reasonably require, a statement in writing
(i) certifying that this Lease is unmodified and in full force and effect (or,
if modified, stating the nature of the modification and certifying that this
Lease, as modified, is in full force and effect) and the dates to which the
rental, additional rent and other charges have been paid in advance, if any, and
(ii) acknowledging that, to Landlord's knowledge, there are no uncured defaults
on the part of Tenant, or specifying each default if any are claimed, and (iii)
setting forth all further information that Tenant may reasonably require.
Landlord's statement may be relied upon by any prospective subtenant or
assignee.
SECTION 13.3. FINANCIALS.
(a) Tenant shall deliver to Landlord, prior to the execution of this Lease
and thereafter at any time upon Landlord's request, but not more often than once
during any calendar year, a copy of Tenant's current audited financial
statements, included in its most recent filing with the Securities and Exchange
Commission (the "Statements").
(b) Tenant acknowledges that Landlord is relying on the Statements
previously delivered in its determination to enter into this Lease, and Tenant
represents to Landlord, which representation shall be deemed made on the date of
this Lease, that no material adverse change in the financial condition of
Tenant, as reflected in the Statements, has occurred since the date Tenant
delivered the Statements to Landlord. The Statements are represented and
warranted by Tenant to be correct and to accurately and fully reflect Tenant's
true financial condition as of the date of submission of such Statements to
Landlord.
ARTICLE XIV. DEFAULTS AND REMEDIES
SECTION 14.1. TENANT'S DEFAULTS. The occurrence of any one or more of the
following events shall constitute a default by Tenant:
(a) The failure by Tenant to make any payment of rent or additional rent
required to be made by Tenant, as and when due, where the failure continues for
a period of five (5) days after written notice from Landlord to Tenant;
provided, however, that any such notice shall be in lieu of, and not in addition
to, any notice required under California Code of Civil Procedure Section 1161
and 1161(a) as amended. For purposes of these default and remedies provisions,
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the term "additional rent" shall be deemed to include all amounts of any type
whatsoever other than Basic Rent to be paid by Tenant pursuant to the terms of
this Lease.
(b) Except as specifically set forth in Article IX, assignment, sublease,
encumbrance or other transfer of the Lease by Tenant, either voluntarily or by
operation of law, whether by judgment, execution, transfer by intestacy or
testacy, or other means, without the prior written consent of Landlord.
(c) The discovery by Landlord that any Statement provided by Tenant, or by
any affiliate, successor or guarantor of Tenant, was materially and adversely
false.
(d) The failure of Tenant to timely and fully provide any subordination
agreement, estoppel certificate or financial statements in accordance with the
requirements of Article XIII within five (5) business days after written notice
from Landlord.
(e) The failure or inability by Tenant to observe or perform any of the
covenants or provisions of this Lease to be observed or performed by Tenant,
other than as specified in any other subsection of this Section, where the
failure continues for a period of thirty (30) days after written notice from
Landlord to Tenant or such shorter period as is specified in any other provision
of this Lease; provided, however, that any such notice shall be in lieu of, and
not in addition to, any notice required under California Code of Civil Procedure
Section 1161 and 1161(a) as amended. However, if the nature of the failure is
such that more than thirty (30) days are reasonably required for its cure, then
Tenant shall not be deemed to be in default if Tenant commences the cure within
thirty (30) days, and thereafter diligently pursues the cure to completion.
(f) (i) The making by Tenant of any general assignment for the benefit of
creditors; (ii) the filing by or against Tenant of a petition to have Tenant
adjudged a Chapter 7 debtor under the Bankruptcy Code or to have debts
discharged or a petition for reorganization or arrangement under any law
relating to bankruptcy (unless, in the case of a petition filed against Tenant,
the same is dismissed within thirty (30) days); (iii) the appointment of a
trustee or receiver to take possession of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease, if possession is
not restored to Tenant within thirty (30) days; (iv) the attachment, execution
or other judicial seizure of substantially all of Tenant's assets located at the
Premises or of Tenant's interest in this Lease, where the seizure is not
discharged within thirty (30) days; or (v) Tenant's convening of a meeting of
its creditors for the purpose of effecting a moratorium upon or composition of
its debts. Landlord shall not be deemed to have knowledge of any event described
in this subsection unless notification in writing is received by Landlord, nor
shall there be any presumption attributable to Landlord of Tenant's insolvency.
In the event that any provision of this subsection is contrary to applicable
law, the provision shall be of no force or effect.
SECTION 14.2. LANDLORD'S REMEDIES.
(a) In the event of any default by Tenant, or in the event of the legal
abandonment of the Premises by Tenant, then in addition to any other remedies
available to Landlord, Landlord may exercise the following remedies:
(i) Landlord may terminate Tenant's right to possession of the
Premises by any lawful means, in which case this Lease shall terminate and
Tenant shall immediately surrender possession of the Premises to Landlord.
Such termination shall not affect any accrued obligations of Tenant under
this Lease. Upon termination and subject to applicable law, Landlord shall
have the right to reenter the Premises and remove all persons and property.
Landlord shall also be entitled to recover from Tenant:
(1) The worth at the time of award of the unpaid rent and
additional rent which had been earned at the time of termination;
(2) The worth at the time of award of the amount by which the
unpaid rent and additional rent which would have been earned after termination
until the time of award exceeds the amount of such loss that Tenant proves could
have been reasonably avoided;
(3) The worth at the time of award of the amount by which the
unpaid rent and additional rent for the balance of the Term after the time of
award exceeds the amount of such loss that Tenant proves could be reasonably
avoided;
(4) Any other amount necessary to compensate Landlord for all the
detriment proximately caused by Tenant's failure to perform its obligations
under this Lease or which in the ordinary course of things would be likely to
result from Tenant's default, including, but not limited to, the cost of
recovering possession of the Premises, refurbishment of the Premises, marketing
costs, commissions and other expenses of reletting, including necessary repair,
the unamortized portion of any tenant improvements and brokerage commissions
funded by Landlord in connection with this Lease, reasonable attorneys' fees,
and any other reasonable costs; and
(5) At Landlord's election, all other amounts in addition to or
in lieu of the foregoing as may be permitted by law. The term "rent" as used in
this Lease shall be deemed to mean the Basic Rent and all other sums required to
be paid by Tenant to Landlord pursuant to the terms of this Lease. Any sum,
other than Basic Rent, shall be computed on the basis of the average monthly
amount accruing during the twenty-four (24) month period immediately prior to
default, except that if it becomes necessary to compute such rental before the
twenty-four (24) month period has
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occurred, then the computation shall be on the basis of the average monthly
amount during the shorter period. As used in subparagraphs (1) and (2) above,
the "worth at the time of award" shall be computed by allowing interest at the
rate of ten percent (10%) per annum. As used in subparagraph (3) above, the
"worth at the time of award" shall be computed by discounting the amount at the
discount rate of the Federal Reserve Bank of San Francisco at the time of award
plus one percent (1%).
(ii) Landlord may elect not to terminate Tenant's right to possession
of the Premises, in which event Landlord may continue to enforce all of its
rights and remedies under this Lease, including the right to collect all rent as
it becomes due. Efforts by the Landlord to maintain, preserve or relet the
Premises, or the appointment of a receiver to protect the Landlord's interests
under this Lease, shall not constitute a termination of the Tenant's right to
possession of the Premises. In the event that Landlord elects to avail itself of
the remedy provided by this subsection (ii), Landlord shall not unreasonably
withhold its consent to an assignment or subletting of the Premises subject to
the reasonable standards for Landlord's consent as are contained in this Lease.
(b) Except as required by applicable law, Landlord shall be under no
obligation to observe or perform any covenant of this Lease on its part to be
observed or performed which accrues after the date of any default by Tenant
unless and until the default is cured by Tenant, it being understood and agreed
that the performance by Landlord of its obligations under this Lease are
expressly conditioned upon Tenant's full and timely performance of its
obligations under this Lease. The various rights and remedies reserved to
Landlord in this Lease or otherwise shall be cumulative and, except as otherwise
provided by California law, Landlord may pursue any or all of its rights and
remedies at the same time.
(c) No delay or omission of Landlord to exercise any right or remedy shall
be construed as a waiver of the right or remedy or of any default by Tenant. The
acceptance by Landlord of rent shall not be a (i) waiver of any preceding breach
or default by Tenant of any provision of this Lease, other than the failure of
Tenant to pay the particular rent accepted, regardless of Landlord's knowledge
of the preceding breach or default at the time of acceptance of rent, or (ii) a
waiver of Landlord's right to exercise any remedy available to Landlord by
virtue of the breach or default. The acceptance of any payment from a debtor in
possession, a trustee, a receiver or any other person acting on behalf of Tenant
or Tenant's estate shall not waive or cure a default under Section 14.1. No
payment by Tenant or receipt by Landlord of a lesser amount than the rent
required by this Lease shall be deemed to be other than a partial payment on
account of the earliest due stipulated rent, nor shall any endorsement or
statement on any check or letter be deemed an accord and satisfaction and
Landlord shall accept the check or payment without prejudice to Landlord's right
to recover the balance of the rent or pursue any other remedy available to it.
No act or thing done by Landlord or Landlord's agents during the Term shall be
deemed an acceptance of a surrender of the Premises, and no agreement to accept
a surrender shall be valid unless in writing and signed by Landlord. No employee
of Landlord or of Landlord's agents shall have any power to accept the keys to
the Premises prior to the termination of this Lease, and the delivery of the
keys to any employee shall not operate as a termination of the Lease or a
surrender of the Premises.
SECTION 14.3. LATE PAYMENTS.
(a) Any rent due under this Lease that is not received by Landlord within
five (5) days of the date when due shall bear interest at the maximum rate
permitted by law from the date due until fully paid. The payment of interest
shall not cure any default by Tenant under this Lease. In addition, Tenant
acknowledges that the late payment by Tenant to Landlord of rent will cause
Landlord to incur costs not contemplated by this Lease, the exact amount of
which will be extremely difficult and impracticable to ascertain. Those costs
may include, but are not limited to, administrative, processing and accounting
charges, and late charges which may be imposed on Landlord by the terms of any
ground lease, mortgage or trust deed covering the Premises. Accordingly, if any
rent due from Tenant shall not be received by Landlord or Landlord's designee
within ten (10) days after the date due, then Tenant shall pay to Landlord, in
addition to the interest provided above, a late charge in a sum equal to the
greater of five percent (5%) of the amount overdue for each delinquent payment;
provided, however, that such late charge shall be waived by Landlord for the
first three (3) late payments only during the Term of this Lease of Base Rent
and/or Operating Expenses. Acceptance of a late charge by Landlord shall not
constitute a waiver of Tenant's default with respect to the overdue amount, nor
shall it prevent Landlord from exercising any of its other rights and remedies.
(b) Following each second consecutive installment of rent that is not paid
within five (5) business days following notice of nonpayment from Landlord,
Landlord shall have the option (i) to require that beginning with the first
payment of rent next due, rent shall no longer be paid in monthly installments
but shall be payable quarterly three (3) months in advance and/or (ii) to
require that Tenant increase the amount, if any, of the Security Deposit by one
hundred percent (100%). Should Tenant deliver to Landlord, at any time during
the Term, two (2) or more insufficient checks, the Landlord may require that all
monies then and thereafter due from Tenant be paid to Landlord by cashier's
check.
SECTION 14.4. RIGHT OF LANDLORD TO PERFORM. All covenants and agreements to
be performed by Tenant under this Lease shall be performed at Tenant's sole cost
and expense and without any abatement of rent or right of set-off. If Tenant
fails to pay any sum of money, other than rent, or fails to perform any other
act on its part to be performed under this Lease, and the failure continues
beyond any applicable grace period set forth in Section 14.1, then in addition
to any other available remedies, Landlord may, at its election make the payment
or perform the other act on Tenant's part. Landlord's election to make the
payment or perform the act on Tenant's part shall not give rise to any
responsibility of Landlord to continue making the same or similar payments or
performing the same or similar acts. Tenant shall, promptly upon demand by
Landlord, reimburse Landlord for all sums paid by Landlord and all necessary
incidental costs, together with interest at the maximum rate permitted by law
from the date of the payment by Landlord.
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Landlord shall have the same rights and remedies if Tenant fails to pay those
amounts as Landlord would have in the event of a default by Tenant in the
payment of rent.
SECTION 14.5. DEFAULT BY LANDLORD. Landlord shall not be deemed to be in
default in the performance of any obligation under this Lease unless and until
it has failed to perform the obligation within a reasonable time not to exceed
thirty (30) days after written notice by Tenant to Landlord specifying in
reasonable detail the nature and extent of the failure; provided, however, that
if the nature of Landlord's obligation is such that more than thirty (30) days
are required for its performance, then Landlord shall not be deemed to be in
default if it commences performance within the thirty (30) day period and
thereafter diligently pursues the cure to completion.
SECTION 14.6. EXPENSES AND LEGAL FEES. All sums reasonably incurred by
Landlord in connection with any event of default by Tenant under this Lease or
holding over of possession by Tenant after the expiration or earlier termination
of this Lease, including, without limitation, all costs, expenses and actual
accountants, appraisers, attorneys and other professional fees, and any
collection agency or other collection charges, shall be due and payable by
Tenant to Landlord on demand, and shall bear interest at the rate of ten percent
(10%) per annum. Should either Landlord or Tenant bring any action in connection
with this Lease, the prevailing party shall be entitled to recover as a part of
the action its reasonable attorneys' fees, and all other costs. The prevailing
party for the purpose of this paragraph shall be determined by the trier of the
facts.
SECTION 14.7. WAIVER OF JURY TRIAL. LANDLORD AND TENANT EACH ACKNOWLEDGES
THAT IT IS AWARE OF AND HAS HAD THE ADVICE OF COUNSEL OF ITS CHOICE WITH RESPECT
TO ITS RIGHTS TO TRIAL BY JURY, AND EACH PARTY DOES HEREBY EXPRESSLY AND
KNOWINGLY WAIVE AND RELEASE ALL SUCH RIGHTS TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY HERETO AGAINST THE OTHER
(AND/OR AGAINST ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SUBSIDIARY OR
AFFILIATED ENTITIES) ON ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS LEASE, TENANT'S USE OR OCCUPANCY OF THE PREMISES, AND/OR ANY
CLAIM OF INJURY OR DAMAGE.
SECTION 14.8. SATISFACTION OF JUDGMENT. The obligations of Landlord do not
constitute the personal obligations of the individual partners, trustees,
directors, officers or shareholders of Landlord or its constituent partners.
Should Tenant recover a money judgment against Landlord, such judgment shall be
satisfied only out of the proceeds of sale received upon execution of such
judgment and levied thereon against the right, title and interest of Landlord in
the Project and out of the rent or other income from such property receivable by
Landlord or out of consideration received by Landlord from the sale or other
disposition of all or any part of Landlord's right, title or interest in the
Project and no action for any deficiency may be sought or obtained by Tenant.
ARTICLE XV. END OF TERM
SECTION 15.1. HOLDING OVER. This Lease shall terminate without further
notice upon the expiration of the Term, and any holding over by Tenant after the
expiration shall not constitute a renewal or extension of this Lease, or give
Tenant any rights under this Lease, except when in writing signed by both
parties. If Tenant holds over for any period after the expiration (or earlier
termination) of the Term without the prior written consent of Landlord, such
possession shall constitute a tenancy at sufferance only; such holding over with
the prior written consent of Landlord shall constitute a month-to-month tenancy
commencing on the first (1st) day following the termination of this Lease. In
either of such events, possession shall be subject to all of the terms of this
Lease, except that the monthly Basic Rent for the initial month of holdover
shall be one hundred twenty-five percent (125%) of the Basic Rent for the month
immediately preceding the date of termination, monthly Basic Rent for the second
(2nd) month of holdover shall be one hundred fifty percent (150%) of the Basic
Rent for the month immediately preceding the date of termination, and the
monthly Basic Rent for the third (3rd) and each successive month of holdover
shall be the greater of: (I) one hundred fifty percent (150%) of the Basic Rent
for the month immediately preceding the date of termination; or (ii) the then
current Basic Rent for comparable space in the Building or Project, as the case
may be. If Tenant fails to surrender the Premises upon the expiration of this
Lease despite demand to do so by Landlord, Tenant shall indemnify and hold
Landlord harmless from all loss or liability, including without limitation, any
claims made by any succeeding tenant relating to such failure to surrender.
Acceptance by Landlord of rent after the termination shall not constitute a
consent to a holdover or result in a renewal of this Lease. The foregoing
provisions of this Section are in addition to and do not affect Landlord's right
of re-entry or any other rights of Landlord under this Lease or at law.
SECTION 15.2. MERGER ON TERMINATION. The voluntary or other surrender of
this Lease by Tenant, or a mutual termination of this Lease, shall terminate any
or all existing subleases unless Landlord, at its option, elects in writing to
treat the surrender or termination as an assignment to it of any or all
subleases affecting the Premises.
SECTION 15.3. SURRENDER OF PREMISES; REMOVAL OF PROPERTY. Upon the
Expiration Date or upon any earlier termination of this Lease, Tenant shall quit
and surrender possession of the Premises to Landlord in as good order, condition
and repair as when received or as hereafter may be improved by Landlord or
Tenant, reasonable wear and tear and repairs which are Landlord's obligation
excepted, and shall, without expense to Landlord, remove or cause to be removed
from the Premises all personal property and debris, except for any items that
Landlord may by written authorization allow to remain. Tenant shall repair all
damage to the Premises resulting from the removal, which
25
repair shall include the patching and filling of holes and repair of structural
damage, provided that Landlord may instead elect to repair any structural damage
at Tenant's expense. If Tenant shall fail to comply with the provisions of this
Section, Landlord may, after fifteen (15) days prior written notice to Tenant,
effect the removal and/or make any repairs, and the cost to Landlord shall be
additional rent payable by Tenant upon demand. If Tenant fails to remove
Tenant's personal property from the Premises upon the expiration of the Term,
Landlord may, after fifteen (15) days prior written notice to Tenant, remove,
store, dispose of and/or retain such personal property, at Landlord's option, in
accordance with then applicable laws, all at the expense of Tenant. If requested
by Landlord, Tenant shall execute, acknowledge and deliver to Landlord an
instrument in writing releasing and quitclaiming to Landlord all right, title
and interest of Tenant in the Premises.
ARTICLE XVI. PAYMENTS AND NOTICES
All sums payable by Tenant to Landlord shall be paid, without deduction or
offset (except as specifically set forth herein), in lawful money of the United
States to Landlord at its address set forth in Item 12 of the Basic Lease
Provisions, or at any other place as Landlord may designate in writing. Unless
this Lease expressly provides otherwise, as for example in the payment of rent
pursuant to Section 4.1, all payments shall be due and payable within fifteen
(15) days after demand. All payments requiring proration shall be prorated on
the basis of a thirty (30) day month and a three hundred sixty (360) day year.
Any notice, election, demand, consent, approval or other communication to be
given or other document to be delivered by either party to the other may be
delivered in person or by courier or overnight delivery service to the other
party, or may be deposited in the United States mail, duly registered or
certified, postage prepaid, return receipt requested, and addressed to the other
party at the addresses set forth in Item 12 of the Basic Lease Provisions.
Either party may, by written notice to the other, served in the manner provided
in this Article, designate a different address. If any notice or other document
is sent by mail, it shall be deemed received on the date of delivery as shown on
the receipt or the date of refusal if such delivery was not accepted. If more
than one person or entity is named as Tenant under this Lease, service of any
notice upon any one of them shall be deemed as service upon all of them.
ARTICLE XVII. RULES AND REGULATIONS
Tenant agrees to observe faithfully and comply strictly with the Rules and
Regulations attached as Exhibit E, and with any reasonable and nondiscriminatory
---------
amendments, modifications and/or additions as may be adopted and published by
written notice to tenants by Landlord for the safety, care, security, good
order, or cleanliness of the Premises, Building, Project and Common Areas;
provided that such amendments, modifications and/or additions (as well as any
rules and regulations promulgated by Landlord pursuant to Section 6.3 of this
Lease) shall not be inconsistent with the provisions of this Lease, shall not in
any material respect adversely affect any of the rights of Tenant under this
Lease or unreasonably interfere with the conduct of Tenant's business or deprive
Tenant of reasonable access to and use of the Premises. Landlord shall not be
liable to Tenant for any violation of the Rules and Regulations or the breach of
any covenant or condition in any lease by any other tenant or such tenant's
agents, employees, contractors, guests or invitees. One or more waivers by
Landlord of any breach of the Rules and Regulations by Tenant or by any other
tenant(s) shall not be a waiver of any subsequent breach of that rule or any
other. Tenant's failure to keep and observe the Rules and Regulations shall
constitute a default under this Lease. In the case of any conflict between the
Rules and Regulations and this Lease, this Lease shall be controlling.
ARTICLE XVIII. BROKER'S COMMISSION
The parties recognize as the broker(s) who negotiated this Lease the
firm(s), if any, whose name(s) is (are) stated in Item 10 of the Basic Lease
Provisions, and agree that Landlord shall be responsible for the payment of
brokerage commissions to those broker(s) unless otherwise provided in this
Lease. Tenant warrants that it has had no dealings with any other real estate
broker or agent in connection with the negotiation of this Lease, and Tenant
agrees to indemnify and hold Landlord harmless from any cost, expense or
liability (including reasonable attorneys' fees) for any compensation,
commissions or charges claimed by any other real estate broker or agent employed
or claiming to represent or to have been employed by Tenant in connection with
the negotiation of this Lease. The foregoing agreement shall survive the
termination of this Lease. If Tenant fails to take possession of the Premises or
if this Lease otherwise terminates prior to the Expiration Date as the result of
failure of performance by Tenant, Landlord shall be entitled to recover from
Tenant the unamortized portion of any brokerage commission funded by Landlord in
addition to any other damages to which Landlord may be entitled.
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ARTICLE XIX. TRANSFER OF LANDLORD'S INTEREST
In the event of any transfer of Landlord's interest in the Premises, the
transferor shall be automatically relieved of all obligations on the part of
Landlord accruing under this Lease from and after the date of the transfer,
provided that such obligations are assumed in writing by the transferee and any
funds held by the transferor in which Tenant has an interest shall be turned
over, subject to that interest, to the transferee and Tenant is notified of the
transfer as required by law. No holder of a mortgage and/or deed of trust to
which this Lease is or may be subordinate, and no landlord under a so-called
sale-leaseback, shall be responsible in connection with the Security Deposit,
unless the mortgagee or holder of the deed of trust or the landlord actually
receives the Security Deposit. It is intended that the covenants and obligations
contained in this Lease on the part of Landlord shall, subject to the foregoing,
be binding on Landlord, its successors and assigns, only during and in respect
to their respective successive periods of ownership.
ARTICLE XX. INTERPRETATION
SECTION 20.1. GENDER AND NUMBER. Whenever the context of this Lease
requires, the words "Landlord" and "Tenant" shall include the plural as well as
the singular, and words used in neuter, masculine or feminine genders shall
include the others.
SECTION 20.2. HEADINGS. The captions and headings of the articles and
sections of this Lease are for convenience only, are not a part of this Lease
and shall have no effect upon its construction or interpretation.
SECTION 20.3. JOINT AND SEVERAL LIABILITY. If more than one person or
entity is named as Tenant, the obligations imposed upon each shall be joint and
several and the act of or notice from, or notice or refund to, or the signature
of, any one or more of them shall be binding on all of them with respect to the
tenancy of this Lease, including, but not limited to, any renewal, extension,
termination or modification of this Lease.
SECTION 20.4. SUCCESSORS. Subject to Articles IX and XIX, all rights and
liabilities given to or imposed upon Landlord and Tenant shall extend to and
bind their respective heirs, executors, administrators, successors and assigns.
Nothing contained in this Section is intended, or shall be construed, to grant
to any person other than Landlord and Tenant and their successors and assigns
any rights or remedies under this Lease.
SECTION 20.5. TIME OF ESSENCE. Time is of the essence with respect to the
performance of every provision of this Lease.
SECTION 20.6. CONTROLLING LAW. This Lease shall be governed by and
interpreted in accordance with the laws of the State of California.
SECTION 20.7. SEVERABILITY. If any term or provision of this Lease, the
deletion of which would not adversely affect the receipt of any material benefit
by either party or the deletion of which is consented to by the party adversely
affected, shall be held invalid or unenforceable to any extent, the remainder of
this Lease shall not be affected and each term and provision of this Lease shall
be valid and enforceable to the fullest extent permitted by law.
SECTION 20.8. WAIVER AND CUMULATIVE REMEDIES. One or more waivers by
Landlord or Tenant of any breach of any term, covenant or condition contained in
this Lease shall not be a waiver of any subsequent breach of the same or any
other term, covenant or condition. Consent to any act by one of the parties
shall not be deemed to render unnecessary the obtaining of that party's consent
to any subsequent act. No breach by Tenant of this Lease shall be deemed to have
been waived by Landlord unless the waiver is in a writing signed by Landlord.
The rights and remedies of Landlord under this Lease shall be cumulative and in
addition to any and all other rights and remedies which Landlord may have.
SECTION 20.9. INABILITY TO PERFORM. In the event that either party shall be
delayed or hindered in or prevented from the performance of any work or in
performing any act required under this Lease by reason of any cause beyond the
reasonable control of that party, then the performance of the work or the doing
of the act shall be excused for the period of the delay and the time for
performance shall be extended for a period equivalent to the period of the
delay. The provisions of this Section shall not operate to excuse Tenant from
the prompt payment of rent or excuse either party from the timely performance of
any other obligation under this Lease within such party's reasonable control.
SECTION 20.10. ENTIRE AGREEMENT. This Lease and its exhibits and other
attachments cover in full each and every agreement of every kind between the
parties concerning the Premises, the Building, and the Project, and all
preliminary negotiations, oral agreements, understandings and/or practices,
except those contained in this Lease, are superseded and of no further effect.
Tenant waives its rights to rely on any representations or promises made by
Landlord or others which are not contained in this Lease. No verbal agreement or
implied covenant shall be held to modify the provisions of this Lease, any
statute, law, or custom to the contrary notwithstanding.
SECTION 20.11. QUIET ENJOYMENT. Upon the observance and performance of all
the covenants, terms and conditions on Tenant's part to be observed and
performed, and subject to the other provisions of this Lease, Tenant
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shall peaceably and quietly hold and enjoy the Premises for the Term without
hindrance or interruption by Landlord or any other person claiming by or through
Landlord.
SECTION 20.12. SURVIVAL. All covenants of Landlord or Tenant which
reasonably would be intended to survive the expiration or sooner termination of
this Lease, including, without limitation, any warranty or indemnity hereunder,
shall so survive and continue to be binding upon and inure to the benefit of the
respective parties and their successors and assigns.
ARTICLE XXI. EXECUTION AND RECORDING
SECTION 21.1. COUNTERPARTS. This Lease may be executed in one or more
counterparts, each of which shall constitute an original and all of which shall
be one and the same agreement.
SECTION 21.2. CORPORATE AND PARTNERSHIP AUTHORITY. If Tenant is a
corporation or partnership, each individual executing this Lease on behalf of
the corporation or partnership represents and warrants that he is duly
authorized to execute and deliver this Lease on behalf of the corporation or
partnership, and that this Lease is binding upon the corporation or partnership
in accordance with its terms. Tenant shall, at Landlord's request, deliver a
certified copy of its board of directors' resolution or partnership agreement or
certificate authorizing or evidencing the execution of this Lease.
SECTION 21.3. EXECUTION OF LEASE; NO OPTION OR OFFER. The submission of
this Lease to Tenant shall be for examination purposes only, and shall not
constitute an offer to or option for Tenant to lease the Premises. Execution of
this Lease by Tenant and its return to Landlord shall not be binding upon
Landlord, notwithstanding any time interval, until Landlord has in fact executed
and delivered this Lease to Tenant, it being intended that this Lease shall only
become effective upon execution by Landlord and delivery of a fully executed
counterpart to Tenant.
SECTION 21.4. RECORDING. Tenant shall not record this Lease without the
prior written consent of Landlord. Tenant, upon the request of Landlord, shall
execute and acknowledge a "short form" memorandum of this Lease for recording
purposes.
SECTION 21.5. AMENDMENTS. No amendment or termination of this Lease shall
be effective unless in writing signed by authorized signatories of Tenant and
Landlord, or by their respective successors in interest. No actions, policies,
oral or informal arrangements, business dealings or other course of conduct by
or between the parties shall be deemed to modify this Lease in any respect.
SECTION 21.6. EXECUTED COPY. Any fully executed photocopy or similar
reproduction of this Lease shall be deemed an original for all purposes.
SECTION 21.7. ATTACHMENTS. All exhibits, amendments, riders and addenda
attached to this Lease are hereby incorporated into and made a part of this
Lease.
ARTICLE XXII. MISCELLANEOUS
SECTION 22.1. NON-DISCLOSURE OF LEASE TERMS. Tenant acknowledges and agrees
that the terms of this Lease are confidential and constitute proprietary
information of Landlord. Disclosure of the terms could adversely affect the
ability of Landlord to negotiate other leases and impair Landlord's relationship
with other tenants. Accordingly, Tenant agrees that it, and its partners,
officers, directors, employees and attorneys, shall not intentionally and
voluntarily disclose the terms and conditions of this Lease to any other tenant
or apparent prospective tenant of the Building or Project, either directly or
indirectly, without the prior written consent of Landlord, provided, however,
that Tenant may disclose the terms to prospective subtenants or assignees under
this Lease and their respective attorneys, accountants and consultants or as may
be required by law.
SECTION 22.2. GUARANTY. As a condition to the execution of this Lease by
Landlord, the obligations, covenants and performance of the Tenant as herein
provided shall be guaranteed in writing by the Guarantor(s) listed in Item 7 of
the Basic Lease Provisions, if any, on a form of guaranty provided by Landlord.
SECTION 22.3. CHANGES REQUESTED BY LENDER. If, in connection with
obtaining financing for the Project, the lender shall request reasonable
modifications in this Lease as a condition to the financing, Tenant will not
unreasonably withhold or delay its consent, provided that the modifications do
not materially increase the obligations or materially decrease the rights of
Tenant or materially and adversely affect the leasehold interest created by this
Lease.
SECTION 22.4. MORTGAGEE PROTECTION. No act or failure to act on the part
of Landlord which would otherwise entitle Tenant to be relieved of its
obligations hereunder or to terminate this Lease shall result in such a release
or termination unless (a) Tenant has given notice by registered or certified
mail to any beneficiary of a deed of trust or mortgage covering the Building
whose address has been furnished to Tenant and (b) such beneficiary is afforded
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a reasonable opportunity to cure the default by Landlord (which in no event
shall be less than sixty (60) days), including, if necessary to effect the cure,
time to obtain possession of the Building by power of sale or judicial
foreclosure provided that such foreclosure remedy is diligently pursued. Tenant
agrees that each beneficiary of a deed of trust or mortgage covering the
Building is an express third party beneficiary hereof, Tenant shall have no
right or claim for the collection of any deposit from such beneficiary or from
any purchaser at a foreclosure sale unless such beneficiary or purchaser shall
have actually received and not refunded the deposit, and Tenant shall comply
with any written directions by any beneficiary to pay rent due hereunder
directly to such beneficiary without determining whether an event of default
exists under such beneficiary's deed of trust.
SECTION 22.5. COVENANTS AND CONDITIONS. All of the provisions of this
Lease shall be construed to be conditions as well as covenants as though the
words specifically expressing or imparting covenants and conditions were used in
each separate provision.
SECTION 22.6. SECURITY MEASURES. Tenant hereby acknowledges that Landlord
shall have no obligation whatsoever to provide guard service or other security
measures for the benefit of the Premises or the Project. Tenant assumes all
responsibility for the protection of Tenant, its agents, invitees and property
from acts of third parties. Nothing herein contained shall prevent Landlord, at
its sole option, from providing security protection for the Project or any part
thereof, in which event the cost thereof shall be included within the definition
of Project Costs. Nothing herein contained shall prevent Tenant from installing
one or more security systems within the Premises which are not visible from the
exterior of the Building, subject to Landlord's reasonable approval of the plans
and specifications with respect thereto.
SECTION 22.7. JAMS ARBITRATION.
(a) All claims or disputes between Landlord and Tenant arising out of, or
relating to the Lease which either party is expressly authorized by a provision
hereof to submit to arbitration, shall be decided by the JAMS/ENDISPUTE, or its
successor, in Orange, California ("JAMS"), unless the parties mutually agree
otherwise. Within ten (10) business days following submission to JAMS, JAMS
shall designate three arbitrators and each party may, within five (5) business
days thereafter, veto one of the three persons so designated. If two different
designated arbitrators have been vetoed, the third arbitrator shall hear and
decide the matter. Any arbitration pursuant to this Section shall be decided
within thirty (30) days of submission of JAMS. In no event shall the arbitrator
be empowered or authorized to award consequential or punitive damages (including
any award for lost profit or opportunity costs or loss or interruption of
business or income). The decision of the arbitrator shall be final and binding
on the parties. All costs associated with arbitration shall be awarded to the
prevailing party as determined by the arbitrator.
(b) Notice of the demand for arbitration by either party to the Lease shall
be filed in writing with the other party to the Lease and with JAMS and shall be
made within a reasonable time after the dispute has arisen. The award rendered
by the arbitrators shall be final, and judgment may be entered upon it in
accordance with applicable law in any court having jurisdiction thereof. Except
by written consent of the person or entity sought to be joined, no arbitration
arising out of or relating to the Lease shall include, by consolidation, joinder
or in any other manner, any person or entity not a party to the Lease under
which such arbitration is filed if (1) such person or entity is substantially
involved in a common question of fact or law, (2) the presence of such person or
entity is required if complete relief is to be accorded in the arbitration, or
(3) the interest or responsibility of such person or entity in the matter is not
insubstantial.
(c) The agreement herein among the parties to the Lease and any other
written agreement to arbitrate referred to herein shall be specifically
enforceable under prevailing law.
SECTION 22.8. COMMUNICATIONS EQUIPMENT. At any time upon the execution by
Tenant of Landlord's License Agreement (a copy of which is attached hereto as
Exhibit F), Tenant shall have the right at its sole cost and expense, during the
Term of this Lease, to install, maintain and operate communications equipment on
the roof of the Building. The operation and maintenance of any such equipment
shall be subject to the terms of said License Agreement.
[Signaures on following page.]
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LANDLORD: TENANT:
THE IRVINE COMPANY NEW CENTURY MORTGAGE CORPORATION,
a Delaware corporation
By:_________________________________ By:__________________________________
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Name:_____________________________
Executive Vice President Title:____________________________
By:_________________________________ By:__________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President Name:_____________________________
Office Properties Title:____________________________
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