EXHIBIT 10.3
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AGREEMENT OF LEASE
BETWEEN
▇▇▇▇ ▇▇▇▇▇▇▇▇ OPERATING PARTNERSHIP,
LANDLORD
and
T.A.R. PREFERRED MORTGAGE CORPORATION,
TENANT
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BASIC LEASE INFORMATION
PARK PLACE LEASE
1. LEASE DATE: As of January __, 1997.
2. LANDLORD: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Operating Partnership, a Maryland general
partnership
3. ADDRESS OF LANDLORD: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
4. TENANT: T.A.R. Preferred Mortgage Corporation, a California
corporation.
dba: Preferred Mortgage
5. ADDRESS OF TENANT:
(Prior to Term Commencement Date) (After Term Commencement Date)
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
6. PREMISES: Suite 400, deemed to contain approximately 46,911 rentable square
feet and 41,884 useable square feet located on the fourth (4th) floor of the
Building at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ as depicted on Exhibit B-
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1 attached hereto, and subject to adjustment as provided in the Lease and
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Suite 300, deemed to contain approximately 31,760 rentable square feet and
28,357 useable square feet located on the third (3rd) floor of the Building at
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, as depicted on Exhibit B-2 attached
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hereto, and subject to adjustment as provided in the Lease.
7. SCHEDULED TERM COMMENCEMENT DATE: January 15, 1997
8. SCHEDULED LENGTH OF TERM: approximately sixty-two (62) months
9. SCHEDULED TERM EXPIRATION DATE: March 31, 2002
10. RENT: Basic Rent: The Basic Rent shall be paid according to the following
schedule:
(a) for the period commencing on the Term Commencement Date and terminating
on the day immediately prior to the thirty (30) month anniversary of the Rent
Commencement Date (the "Rent Increase Date"), One Million Three Hundred Sixty-
Eight Thousand Eight Hundred Fifty-Eight and 00/100 ($1,368,858.00) Dollars per
annum, payable in equal monthly installments of One Hundred Fourteen Thousand
Seventy-One and 50/100 ($114,071.50) Dollars each; and
(b) for the period commencing on the Rent Increase Date and terminating on
the Term Expiration Date, One Million Four Hundred Sixty-Three Thousand Two
Hundred Sixty-Two and 00/100 ($1,463,262.00) Dollars per annum, payable in equal
monthly installments of One Hundred Twenty-One Thousand Nine Hundred Thirty-
Eight and 50/100 ($121,938.50) Dollars each.
Notwithstanding anything to the contrary hereinabove set forth, provided this
Lease is in full force and effect and Tenant is not in default under this Lease,
Tenant shall be entitled to a credit against the Basic Rent (i) for the entire
Premises for the period commencing on the Term Commencement Date and ending on
(and including) March 31, 1997, and (ii) for a portion of the Premises
constituting 16,911 rentable square feet of space in the Building at ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (the "Rent Credit Space") for the period
commencing on April 1, 1997 and ending on (and including) March 31, 1998, in the
aggregate amount of Two Hundred Ninety-Four Thousand Two Hundred Fifty-One and
40/100 ($294,251.40) Dollars, which credit shall be applied in twelve (12) equal
monthly installments of Twenty-Four Thousand Five Hundred Twenty and 95/100
($24,520.95) Dollars each.
11. RENT COMMENCEMENT DATE: April 1, 1997, subject to the terms of paragraph
10 above.
12. BASE YEAR: calendar year 1997
13. TENANT'S OPERATING EXPENSES: Tenant shall pay as additional rent in each
calendar year of the Term, the difference between (a) the actual amount of
Tenant's Share of Operating Expenses for the subject calendar year, and (b) the
actual amount of Tenant's Share of Operating Expenses for the Base Year (the
"Base Year Operating Expenses"). The difference between (a) and (b) is referred
to in this Lease as "Tenant's Operating Expenses." Tenant shall pay monthly
installments of Tenant's Operating Expenses as provided in Article XXV.
14. TENANT'S SHARE: four and seven-tenths percent (4.7%), subject to adjustment
as provided in the Lease.
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15. PERMITTED USE: General Offices
16. PARKING SPACES: Two Hundred Eighty (280) non-exclusive, unreserved
parking spaces and eight (8) non-exclusive, reserved
unreserved parking spaces and surface parking spaces
17. SECURITY DEPOSIT: $125,478.65, to be increased as provided in Section 4.03
hereof.
18. GUARANTORS: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
19. BROKERS: Equis of California
The foregoing Basic Lease Information is incorporated into and made a part of
this Lease. Each reference in this Lease to any of the Basic Lease Information
shall mean the respective information above set forth and shall be construed to
incorporate all of the terms provided under the particular Lease paragraph
pertaining to such information. In the event of any conflict between the Basic
Lease Information and this Lease, the provisions of the Lease shall control.
INITIAL: LANDLORD_________ TENANT_________
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PARK PLACE OFFICE LEASE
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THIS LEASE ("Lease") is made as of this ____ day of January, ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ Operating Partnership, a Maryland general partnership ("Landlord"), and
T.A.R. Preferred Mortgage Corporation, a California corporation ("Tenant").
R E C I T A L S :
- - - - - - - -
A. Landlord is the owner of a complex of buildings and improvements known
by street numbers as ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ in the City of Irvine, County of
Orange, State of California, and referred to herein as the "Facility", which
Facility is located on the tract of real property more fully described in
Exhibit A attached hereto and incorporated herein by this reference. The
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Facility and the Project within which the Facility is located is depicted on the
Site Plan attached hereto as Exhibit A-1.
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B. Landlord desires to lease to Tenant and Tenant desires to hire from
Landlord, the Premises, within the Facility, as designated on the Site Plan of
the Premises attached hereto as Exhibit B-1 and Exhibit B-2 incorporated herein
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by reference.
NOW, THEREFORE, in consideration of the rents and covenants provided for below,
Landlord and Tenant do hereby agree as follows:
ARTICLE I - DEFINITIONS
The defined terms for this Lease are set forth on Exhibit C attached hereto and
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incorporated herein by reference. A defined term is identified by initial
capital letters throughout all provisions of this Lease, including, without
limitation, the Basic Lease Information, the Recitals and the Exhibits.
Reference should be made to Exhibit C for the meaning of a defined term.
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ARTICLE II - PREMISES
2.01 LEASE OF PREMISES. Landlord hereby leases to Tenant and Tenant
hereby hires from Landlord the Premises. Landlord and Tenant agree that the
letting and hiring of the Premises is upon and subject to the terms, covenants
and conditions contained in this Lease and each party covenants as a material
part of the consideration of this Lease to keep and perform their respective
obligations under this Lease. Tenant acknowledges that this Lease is subject to
all existing liens, encumbrances, deeds of trust, reservations, restrictions and
other matters whether or not of record affecting the Premises and to all
Applicable Laws; provided, however, Landlord represents and warrants to Tenant
that to Landlord's actual knowledge, after no independent inquiry, the
provisions of such liens, encumbrances, deeds of trust, reservations and
restrictions known to Landlord do not preclude Landlord from leasing the
Premises to Tenant as herein provided.
2.02 CALCULATIONS OF AREAS. Throughout the Term, the Facility may
change in size as a result of additional development. In such event, appropriate
adjustments relating to Tenant's Share of Operating Expenses and other
calculations based on areas of the Facility shall be made by Landlord pursuant
to the terms and conditions of this Lease. Tenant shall execute and return to
Landlord an appropriate certificate reasonably provided by Landlord when
necessitated because of any change in or recalculation of the Premises or the
Facility or any redesignation of the Common Area within fifteen (15) days of
receipt from Landlord; it being agreed, however, that any such certificate which
is consistent with the terms of this Lease, shall be binding upon Tenant
notwithstanding Tenant's failure to timely execute and return same to Landlord.
2.03 COMMON AREA. Throughout the Term of this Lease, Tenant shall
have the non-exclusive right to the use, in common with others, of the Common
Area and the Facility Common Area subject to the provisions of this Lease, all
Applicable Laws and the Rules and Regulations referred to in Article XVII and
incorporated herein by reference. Tenant's right to use the Common Area and the
Facility Common Area shall terminate upon the termination of this Lease.
Landlord reserves for itself and for all other owner(s) and operator(s) of the
Common Area, the Facility Common Area and the balance of the Facility, the right
from time to time, without the same constituting an actual or constructive
eviction and without incurring any liability to Tenant therefor, to: (i)
install, use, maintain, repair, replace and relocate pipes, ducts, conduits,
wires and appurtenant meters and equipment above the ceiling surfaces, below the
floor surfaces, within the walls and in the central core areas of the Building,
provided, however, nothing contained herein shall be deemed or construed to
impose upon Landlord any obligation, responsibility or liability whatsoever for
the care, supervision or repair of the Building, the Facility or any part
thereof, other than as herein expressly provided; (ii) make changes to the
design and
layout of the Facility, including, without limitation, changes to buildings,
driveways, entrances, passageway, doors and doorways, corridors, elevators,
stairs, toilets and other public parts of the Facility, loading and unloading
areas, direction of traffic, landscaped areas, walkways and parking spaces and
parking areas; and (iii) use or close temporarily the Common Area, the Facility
Common Area and/or other portions of the Facility or the Project while engaged
in making improvements, repairs or alterations to the Building, the Common Area,
the Facility Common Area, the Facility, or any portion thereof, and (iv) change
the name and numbers of designation by which the Building and the Facility are
commonly known. In connection with the performance of any of the foregoing,
Landlord shall use its reasonable efforts to perform same in a manner intended
to minimize material interference with Tenant's use of the Premises; provided
however, Landlord shall not be obligated to use overtime or premium-pay labor in
connection therewith. To the extent the location or amount, or both, of Common
Area changes or the Facility Common Area changes in or during any calendar year
Landlord shall include the Common Area and the Facility Common Area, as so
adjusted and calculated, for purposes of calculating Operating Expenses for such
portion of the calendar year as such change was in and all subsequent calendar
years.
2.04 ACCESS. Subject to the terms of this Lease, Tenant shall have
continuous access twenty-four (24) hours per day, seven (7) days per week to the
Premises. Landlord reserves the right to require Tenant to comply with
Landlord's security procedures and practices as may be established from time to
time by Landlord.
ARTICLE III - TERM AND POSSESSION
3.01 TERM COMMENCEMENT. The Term of this Lease shall be for the
period designated in the Basic Lease Information and, except as otherwise
provided herein, shall continue in full force and effect until the Term
Expiration Date. Promptly following the Term Commencement Date, Landlord shall
deliver to Tenant a declaration in the form attached hereto as Exhibit D and
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incorporated herein by reference (the "Commencement Memorandum"). The
Commencement Memorandum shall specify the Term Commencement Date, the Term
Expiration Date, the rentable and useable square footage deemed to be in the
Premises and Tenant's Share and shall be binding upon Tenant as to the matters
therein stated unless Tenant objects thereto within five (5) days of Tenant's
receipt of the Commencement Memorandum. Unless otherwise provided herein,
Tenant's obligation to pay Basic Rent and its other obligations for payment
under this Lease shall commence upon the Term Commencement Date.
3.02 DELIVERY OF POSSESSION. Landlord agrees to deliver possession of
the Premises to Tenant in accordance with terms of this Lease. Notwithstanding
the foregoing, Landlord will not be obligated to deliver possession of the
Premises to Tenant until Landlord has received from Tenant all of the following:
(i) a copy of this Lease fully executed by Tenant and the guaranty of Tenant's
obligations under this Lease, executed by the Guarantors; (ii) the Security
Deposit and the first installment of Basic Rent; (iii) executed copies of
policies of insurance or certificates thereof as required under Section 10.04 of
this Lease; (iv) copies of all governmental permits and authorizations, if any,
required in connection with Tenant's operation of its business within the
Premises; and (v) if Tenant is a corporation or partnership, such evidence of
due formation, valid existence and authority as Landlord may reasonably require,
which may include, without limitation, a certificate of good standing,
certificate of secretary, articles of incorporation, statement of partnership or
other similar documentation.
3.03 CONDITION OF PREMISES. Landlord represents and warrants that, as
of the date hereof, to Landlord's actual knowledge, without any additional
inquiry (i) except as is disclosed in that certain Proposition 65 Compliance
Notification which Landlord has delivered to Tenant (A) Landlord has received no
written notice of any alleged violation of any Applicable Law at the Premises
with respect to Hazardous Materials; and (B) the Building is in compliance with
all Applicable Laws regulating the handling, transportation, storage, treatment,
use and disposal of Hazardous Materials; and (ii) Landlord has or will exercise
its good faith efforts to cause the Building (other than the Premises and other
space leased or available for leasing to tenants in the Building) to be in
compliance with the provisions of Title III of the Americans with Disabilities
Act of 1990 ("ADA"); provided, however, Tenant shall be responsible, at Tenant's
sole cost and expense, for compliance with ADA to the extent pertaining to any
repairs, improvements or Alterations performed by or on behalf of Tenant in the
Premises. Subject to the foregoing representations and covenants, Tenant agrees
to accept possession of the Premises in the condition which shall exist on the
Term Commencement Date "as is" except for the performance of the Preliminary
Tenant Improvements in accordance with the Preliminary Tenant Improvement
Agreement attached hereto as Exhibit E-1 and incorporated herein by reference
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and except for the performance of the Subsequent Tenant Improvements in
accordance with and subject to the terms of the Subsequent Tenant Improvement
Agreement attached hereto as Exhibit E-2 and incorporated herein by reference;
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Tenant further agrees that Landlord shall have no other obligation to perform
any work, make any installations or incur any expense in order to prepare the
Premises for Tenant's occupancy. Taking possession of the Premises, shall be
deemed to be conclusive evidence as against Tenant that, at the time such
possession was so taken, the Premises, the Building, the Facility and the
Project were in good and satisfactory condition. Tenant acknowledges that
neither Landlord nor any agent of Landlord has made any representation or
warranty with respect to the Premises, the Building, the Facility, the Project
or any portions thereof or with respect to the suitability of same for the
conduct of
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Tenant's business and Tenant further acknowledges that Landlord will
have no obligation to construct or complete any additional buildings or
improvements within the Facility or the Project.
ARTICLE IV - RENT
4.01 BASIC RENT. Tenant shall pay to Landlord throughout the Term,
Basic Rent as specified in the Basic Lease Information, payable in equal monthly
installments in advance commencing on the Term Commencement Date and continuing
on the first day of each calendar month during every year of the Term in lawful
money of the United States, without deduction or offset whatsoever; provided,
however, that Tenant shall pay the first full month's Basic Rent to Landlord
upon Tenant's execution of this Lease. Basic Rent shall be paid to Landlord at
the address specified in the Basic Lease Information or to such other firm or to
such other place as Landlord may from time to time designate in writing by
notice given as herein provided. If payment of Basic Rent is to begin on a day
other than the first day of a calendar month as provided in this Section 4.01,
then Basic Rent shall be prorated on a per diem basis, and the prorated on a per
diem basis installment shall be paid on the first day of the calendar month next
succeeding the Term Commencement Date. If the Term terminates on other than the
last day of a calendar month, then the Basic Rent shall be prorated as well and
the prorated installment shall be paid on the first day of the calendar month
next preceding the date of termination.
4.02 OPERATING EXPENSES. In addition to Basic Rent, Tenant shall pay
as additional rent, Tenant's Operating Expenses as provided in Article XXV,
without abatement or offset.
4.03 SECURITY DEPOSIT. On execution of this Lease, Tenant shall
deposit with Landlord the security deposit set forth in the Basic Lease
Information. On the Expansion Date, Tenant shall deposit with Landlord an
additional security deposit in an amount equal to the product of (i) the first
month's rent for the Expansion Space (as hereinafter defined), multiplied by
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(ii) One Hundred Ten (110%) percent (the product thereof being hereinafter
referred to as the "Additional Security Deposit"; the security deposit set forth
in the Basic Lease Information, together with the Additional Security Deposit
are herein collectively referred to as the "Security Deposit"). The Security
Deposit shall be held as security for the full and faithful performance by
Tenant of all of its covenants and obligations under this Lease, including,
without limitation, the surrender of possession of the Premises to Landlord as
herein provided. If Tenant fails to pay Rent or other charges due hereunder, or
otherwise defaults with respect to any provision of this Lease, Landlord may
use, apply or retain all or any portion of the Security Deposit for the payment
of any Rent or other charge in default, or for the payment of any other sum
which Landlord may expend or be required to expend in connection with Tenant's
default, or to compensate Landlord for any loss or damage sustained by Landlord
in connection with Tenant's default including, but not limited to, any damages
or deficiency in the reletting of the Premises, whether such damages or
deficiency accrue or accrues before or after summary proceedings or other re-
entry by Landlord. If Landlord uses or applies all or any portion of the
Security Deposit, Tenant shall immediately on demand pay Landlord in cash or
readily available funds, a sum equal to the portion of the Security Deposit
expended or applied by Landlord as provided in this Section so as to restore the
Security Deposit to its original amount. Tenant's failure to deposit the
Security Deposit or maintain the Security Deposit in its original amount, shall
constitute an Event of Default under Article XIX of this Lease. If Tenant shall
fully and faithfully comply with all of the terms, provisions, covenants and
conditions of this Lease, Landlord shall return the Security Deposit to Tenant
after the Term Expiration Date and after delivery of the entire possession of
the Premises to Landlord in accordance with the terms of this Lease. Landlord
shall not be deemed to be a trustee with respect to the Security Deposit, and
shall not be required to keep the Security Deposit separate from its general
funds. Tenant shall be entitled to no interest on the Security Deposit. Should
Landlord transfer its interest in the Premises during the Term hereof and
deposit with the transferee thereof the unappropriated Security Deposit funds,
Landlord's obligations with respect to the Security Deposit will be discharged
and Tenant shall look solely to the new landlord for the return of the Security
Deposit.
4.04 PAYMENT; LATE CHARGES. Tenant shall pay Landlord all amounts due
from Tenant to Landlord hereunder, whether for Rent or otherwise, in lawful
money of the United States, without deduction or offset whatsoever and without
notice or demand except as otherwise provided herein. Tenant acknowledges that
late payment by Tenant of any payment owed to Landlord under this Lease will
cause Landlord to incur costs not contemplated by this Lease, the exact amount
of such costs being extremely difficult and impracticable to fix. Therefore, if
any installment of Rent due from Tenant is not received by Landlord within five
(5) days after the date when such payment is due, Tenant shall pay to Landlord,
in addition to such installment of Rent or such additional rent, as the case may
be, as a late charge and as additional rent, interest on such late amount at the
Interest Rate accruing from the date such amount becomes due until the date such
amount is paid. In addition, Tenant shall pay to Landlord an additional sum of
ten percent (10%) of the overdue Rent as a late charge. Payment of interest and
the late charge is not an alternative means of performance of Tenant's
obligation to pay Rent when due, and acceptance of interest and the late charge
shall not cure or waive Tenant's default, nor prevent Landlord from exercising,
before or after such acceptance, any rights or remedies for a default provided
by this Lease. The parties agree that such interest and late charge represent a
fair and reasonable estimate of the detriment that Landlord will suffer by
reason of late payment by Tenant. If Tenant is subject to late charges more than
three (3) times in any period of twelve (12) months during the Term, Landlord
shall have the right to
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require Tenant thereafter to pay all installments of Rent quarterly in advance
throughout the remainder of the Term.
4.05 ALL PAYMENTS AS RENT. Any and all payments of Basic Rent,
Tenant's Operating Expenses and any and all taxes, fees, charges, costs,
expenses, insurance obligations and all other payments, disbursements or
reimbursements which are attributable to, payable by or the responsibility of
Tenant under and by reason of this Lease are payable as additional rent and
shall constitute "rent" within the meaning of California Civil Code Section
1951(a).
ARTICLE V - RESTRICTIONS ON USE/COMPLIANCE WITH LAWS
5.01 USE. Tenant shall use the Premises for the Permitted Use and for
no other use or purpose. Nothing in this Lease shall be deemed to give Tenant
any exclusive right to such use in the Building, the Facility or the Project.
Tenant shall not do or permit to be done in or about the Premises nor bring,
keep or permit to be brought or kept therein, anything which is prohibited by
the attached Exhibit G or which is in conflict with or will invalidate any
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insurance policy covering the Building, the Facility, the Project or any part
thereof or which will in any way increase the existing rate of, or affect, any
fire or other insurance upon the building or its contents, or which will cause a
weight load or stress on the floor or any other portion of the Premises in
excess of the weight load or stress which the floor or other portion of the
Premises is designed to bear. Tenant, at Tenant's sole expense, shall comply
with all Applicable Laws affecting the Premises, and the requirements of any
board of fire underwriters or other similar body, now or hereafter instituted,
and shall also comply with any order, directive or certificate of occupancy
issued pursuant to any Applicable Laws, which affect the condition, use or
occupancy of the Premises, including but not limited to, any requirements of
structural changes or other alterations related to or affected by Tenant's acts,
occupancy, use or alteration of the Premises. The judgment of any court of
competent jurisdiction or the admission of Tenant in any action against Tenant,
whether or not Landlord is a party to such action, shall be conclusive as
between Landlord and Tenant in establishing such violation. If by reason of
Tenant's failure to comply with the provisions of this Article, the fire
insurance rate shall at the beginning of this Lease or at any time thereafter be
higher than it otherwise would be, then Tenant shall reimburse Landlord, as
additional rent hereunder, for that part of all fire insurance premiums
thereafter paid by Landlord which shall have been charged because of such
failure of Tenant, and shall make such reimbursement upon the first day of the
month following such outlay by Landlord. In any action or proceeding wherein
Landlord and Tenant are parties, a schedule or "make up" of rates for the
Facility, the Building or the Premises issued by the California Fire Insurance
Rating Organization, or other body fixing such fire insurance rates, shall be
conclusive evidence of the facts therein stated and of the several items and
charges in the fire insurance rates then applicable to the Premises.
ARTICLE VI - ALTERATIONS
6.01 TENANT ALTERATIONS. Tenant shall not make or perform or permit
the making or performance of any alterations, additions or improvements
(collectively, "Alterations") to the Premises without Landlord's prior written
consent, which consent Landlord may grant or withhold in its sole and absolute
discretion. Notwithstanding the foregoing, (i) Landlord shall not unreasonably
withhold or delay its consent to any Non-Structural Alterations and (ii) Tenant
shall have the right to make Cosmetic Alterations without Landlord's prior
written consent, provided that in both cases, Tenant shall provide to Tenant, at
least ten (10) days prior to the commencement of such Alterations, notice of the
Alterations to be performed and the terms, conditions and provisions of this
Lease regarding Alterations are otherwise fully complied with. If Landlord
consents to the making of any Alterations by Tenant, the same shall be made by
Tenant, at Tenant's sole cost and expense, and all such Alterations shall be
done in strict compliance with the provisions of this Article VI.
Notwithstanding the foregoing, with respect to Cosmetic Alterations only, Tenant
shall not be required to cause drawings, plans and specifications to be prepared
with respect to such Cosmetic Alterations if such drawings, plans and
specifications are not otherwise required to be prepared in order to obtain any
permit or other required governmental or quasi-governmental approval, but Tenant
shall furnish Landlord with copies of any existing drawings, plans and
specifications actually prepared with respect to such Cosmetic Alterations, if
any.
6.02 INSTALLATION OF ALTERATIONS. Any Alterations installed by or on
behalf of Tenant within the Premises shall be done in strict compliance with all
of the following:
(a) No such work shall proceed without (i) Landlord's prior approval of
Tenant's contractor(s) and subcontractor(s); (ii) Landlord's receipt of
duplicate original policies of comprehensive public liability (including
property damage coverage) insurance and worker's compensation insurance
(covering all persons to be employed by Tenant and Tenant's contractors and
subcontractors in connection with such Alteration) in such form, with such
companies, for such periods and in such amounts as Landlord may reasonably
require, naming Landlord, its property manager and their respective agents as
additional insureds; (iii) Landlord's receipt and approval of detailed plans and
specifications (including layout, architectural, mechanical and structural
drawings stamped by a
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professional engineer or architect licensed in the State of California) for each
proposed Alteration, subject to the terms of Section 6.01 above; (iv) Tenant
paying to Landlord all out of pocket costs and expenses incurred by Landlord in
connection with Landlord's review of Tenant's plans and specifications; it being
understood and agreed that Landlord shall not engage any third party consultant
to review the named Tenant's plans and specifications unless Landlord in its
sole and absolute discretion deems such review necessary because of the nature
or complexity of named Tenant's proposed Alterations; and (v) Tenant obtaining,
at its expense, all permits, approvals and certificates required by any
governmental or quasi-governmental bodies.
(b) All such work shall be performed: (i) in accordance with the plans and
specifications submitted to and approved by Landlord, subject to the terms of
Section 6.01 above; (ii) in a lien-free and first-class and workmanlike manner,
(iii) in compliance with all Applicable Laws including, without limitation, ADA,
a valid building permit and/or all other permits or licenses when and where
required, copies of which shall be furnished to Landlord before the work is
commenced; (iv) in such a manner so as not to interfere with the occupancy and
enjoyment of any other tenant or occupant in the Facility and not to impose any
additional expense upon or delay Landlord in the maintenance and operation of
the Facility and (v) in such a manner so as not to affect any part of the
Building or the Facility other than the Premises. Any work not acceptable to
any governmental authority or agency having or exercising jurisdiction over such
work, or not reasonably satisfactory to Landlord, shall be promptly replaced
and/or corrected at Tenant's expense. Landlord's approval or consent to any
such work shall not impose any liability upon Landlord as to completeness,
design sufficiency or compliance with Applicable Laws. In approving any
Alterations, Landlord reserves the right to require Tenant to increase its
Security Deposit to provide Landlord with additional reasonable security for the
removal of such Alterations by Tenant as required by this Lease; it being
agreed, that Landlord shall act in good faith in connection with increasing the
Security Deposit as aforesaid.
(c) All materials and equipment to be incorporated in the Premises (i)
shall be first quality and (ii) shall not be subject to any lien, encumbrance,
chattel mortgage or title retention or security agreement.
(d) Tenant shall immediately reimburse Landlord for any expense incurred by
Landlord in connection with the performance of any Alteration by Tenant,
including, without limitation, expenses incurred in connection with any
substandard work performed by Tenant or Tenant's contractors, by reason of
delays caused by such work and by reason of inadequate cleanup following
completion of such work.
(e) Tenant or its contractors will in no event be allowed to make
Alterations which: (i) affect the plumbing, mechanical, electrical, sanitary,
life safety, heating, ventilation or air conditioning or other systems or
services of the Facility or the proper functioning thereof, (ii) affect the
structural integrity of the Facility; (iii) affect any area outside the Premises
including the exterior appearance of the Facility or any of the Common Areas;
(iv) in Landlord's reasonable opinion, lessen the value or utility of the
Facility; or (v) will violate or require a change in any occupancy certificate
or permit applicable to the Premises.
(f) All work by Tenant shall be scheduled through Landlord and shall be
diligently and continuously pursued from the date of its commencement through
its completion. If Tenant's Alterations have not been completed within a
reasonable time after the commencement of such Alterations, Landlord may, after
ten (10) days prior notice to Tenant (other than in event of an emergency),
cause such Alterations to be completed, in which event Tenant shall reimburse
Landlord for Landlord's reasonable costs of completing such work upon
Landlord's demand, and the amount of Landlord's completion costs to be
reimbursed by Tenant, together with interest thereon at the Interest Rate shall
constitute additional rent under this Lease and shall be paid by Tenant with the
next due monthly Basic Rent payment after Landlord's demand.
(g) Tenant shall obtain any bonds required by Landlord.
(h) Upon completion of any Alteration, Tenant, at Tenant's expense, shall
(i) obtain certificates of final approval of such Alteration required by any
governmental or quasi-governmental bodies and shall furnish Landlord with copies
thereof and (ii) furnish Landlord with "as-built" drawings showing such
Alterations.
(i) Tenant shall not, at any time prior to or during the Term, directly or
indirectly employ, or permit the employment of, any contractor, mechanic or
laborer in the Premises whether in connection with any Alteration or otherwise,
if, in Landlord's sole discretion, such employment will interfere or cause any
conflict with other contractors, mechanics or laborers engaged in the
construction, maintenance or operation of the Facility or the Project by
Landlord, Tenant or others. In the event of any such interference or conflict,
Tenant upon demand of Landlord, shall cause all contractors, mechanics or
laborers causing such interference or conflict to leave the Facility or the
Project, as the case may be, immediately.
6.03 REMOVAL OF ALTERATIONS. The Tenant Improvements, including,
without limitation, all affixed sinks, dishwashers, microwave ovens and other
fixtures and all Alterations made by Tenant (but excluding Tenant's trade
fixtures and personal property) shall become the property of Landlord
immediately upon installation within the Premises and shall remain on and be
surrendered with the Premises upon expiration or termination of the Term, except
that Landlord reserves the right to require that Tenant remove all Alterations
upon the expiration or termination of the Term. Notwithstanding the foregoing,
Tenant, at the time of its initial submission of plans and specifications to
Landlord for its review and approval, may request in writing that Landlord waive
its right to compel Tenant to remove the Alterations identified on such plans
and specifications.
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If Landlord waives such right to compel Tenant to remove such Alterations, in
whole or in part, Landlord shall notify Tenant at the time of the approval of
such plans and specifications of those Alterations which Tenant may be required
to remove in accordance with the terms of this Section prior to the expiration
of the Term or upon the occurrence of a termination of this Lease and Tenant
shall, upon the expiration of the Term or upon such termination, unless
instructed otherwise by Landlord, be required to remove only such Alterations
specified in Landlord's notice. If Landlord requires Tenant to remove any
Alterations, Tenant, at its cost, shall repair and restore in a good and
workmanlike manner any damage caused to the Premises, the Building or the
Facility resulting in connection with the removal of any of its Alterations,
trade fixtures and/or personal property and shall restore the Premises, the
Building or the Facility, as applicable, to the condition same were in when the
Premises were received by Tenant, ordinary wear and tear excepted.
6.04 PAYMENT OF LANDLORD'S FEES AND COSTS. Tenant agrees to pay
Landlord, as additional rent, within ten (10) business days after Tenant's
receipt of invoices either from Landlord or Landlord's consultants, the
reasonable fees and costs for professional services and costs for general
conditions for review of all plans, specifications and working drawings for any
Alterations; it being understood and agreed, however, that Landlord shall not
engage any third party to provide such professional services to review the named
Tenant's plans, specifications and working drawings unless Landlord, it its sole
and absolute discretion, deems such engagement necessary because of the nature
or complexity of the named Tenant's proposed Alterations; it being further
agreed, however, that any person or entity other than the Tenant named herein
shall also pay Landlord, within ten (10) business days after completion of any
Alterations, Landlord's fee for supervising and administering the installation
of such Alterations.
6.05 REMOVAL OF PERSONAL PROPERTY. All articles of personal property
owned by Tenant or installed by Tenant at its expense in the Premises (including
Tenant's business and trade fixtures, furniture, movable partitions and
equipment such as telephones, copy machines, computer terminals, refrigerators
and facsimile machines) will be and remain the property of Tenant, and must be
removed by Tenant from the Premises, at Tenant's sole cost and expense, on or
before the expiration or sooner termination of this Lease. Tenant agrees to
repair any damage caused by such removal at its cost on or before the expiration
or sooner termination of this Lease.
6.06 FAILURE TO REMOVE ITEMS. If Tenant fails to remove by the
expiration or sooner termination of this Lease all of its personal property,
trade fixtures, equipment or any Alterations identified by Landlord for removal,
Landlord may, at its option, treat such failure as a hold-over pursuant to
Article XV, and/or Landlord may (without liability to Tenant for loss thereof)
treat such personal property and/or Alterations as abandoned and, at Tenant's
sole cost and in addition to Landlord's other rights and remedies under this
Lease, at law or in equity: (a) remove and store such items; and/or (b) upon ten
(10) days' prior notice to Tenant, sell, discard or otherwise dispose of all or
any such items at private or public sale for such price as Landlord may obtain
or by other commercially reasonable means. Tenant shall be liable for all costs
of disposition of Tenant's abandoned property and Landlord shall have no
liability to Tenant with respect to any such abandoned property. Landlord
agrees to apply the proceeds of any sale of any such property to any amounts due
to Landlord under this Lease from Tenant (including Landlord's attorneys' fees
and other costs incurred in the removal, storage and/or sale of such items),
with any remainder to be paid to Tenant.
ARTICLE VII - REPAIRS
7.01 LANDLORD'S OBLIGATIONS. Landlord agrees to repair and maintain
in good order and condition the structural portions of the Building, the roof,
the foundations, exterior surfaces of exterior walls of the Building and the
Facility and the plumbing, heating, ventilating, air conditioning, elevator and
electrical systems installed or furnished by Landlord, unless such maintenance
and repairs are (i) attributable to items installed in Tenant's Premises which
are above standard interior improvements (such as, for example, custom lighting,
special HVAC and/or electrical panels or systems, kitchen or restroom facilities
and appliances constructed or installed within Tenant's Premises) or (ii) caused
in part or in whole by the act, neglect or omission of any duty by Tenant, its
agents, servants, employees or invitees or (iii) Tenant's responsibility
pursuant to the terms of this Lease, in any which case Tenant will pay to
Landlord, as additional rent, the reasonable cost of such maintenance and
repairs. Tenant shall promptly notify Landlord of the necessity of any repairs
which Tenant may have knowledge of and which Landlord is responsible for under
the provisions of this Lease. Except as provided in Article XX concerning damage
by fire and casualty, Tenant will not be entitled to any abatement of rent and
Landlord will not have any liability by reason of any injury to or interference
with Tenant's business arising from the making, or failure to make, any repairs,
alterations or improvements in or to any portion of the Building, the Facility
or the Premises or in or to fixtures, appurtenances and equipment therein.
Notwithstanding anything to the contrary contained herein, the cost of any
repair and maintenance which Landlord is obligated to perform pursuant to the
terms of this Lease shall be deemed to constitute Operating Expenses except as
otherwise expressly set forth in the definition of Operating Expenses on
Exhibit C attached hereto. Tenant waives the right to make repairs at
---------
Landlord's expense under any Applicable Laws (including, without limitation, the
provisions of California Civil Code Sections 1941 and 1942 and any successor
statutes or laws of a similar nature).
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7.02 TENANT'S OBLIGATIONS. Except for Landlord's repair obligations
described in Section 7.01 above, Tenant agrees to keep, maintain and preserve
all portions of the Premises including any Tenant Improvements installed by or
on behalf of Tenant and Tenant's furniture, fixtures, equipment and personal
property, in good order and condition and repair and, when and if needed, at
Tenant's sole cost and expense, to make all repairs to the Premises and every
part thereof. Any such maintenance and repairs will be performed by Landlord's
contractor, or at Landlord's option, by such contractor or contractors as Tenant
may choose from an approved list to be submitted by Landlord; it being agreed,
however, that Landlord shall not unreasonably withhold or delay its consent to
approval of any reputable, licensed and insured contractor. Tenant agrees to
pay all costs and expenses incurred in such maintenance and repair within seven
(7) days after billing by Landlord or such contractor or contractors. Tenant
agrees to cause any mechanics' liens or other liens arising as a result of work
performed by Tenant or at Tenant's direction to be eliminated as provided in
Article VIII below. Except as expressly provided in Section 7.01 above and
except for any alterations or repairs required to be made solely and directly as
a result of the grossly negligent acts or omissions of Landlord or Landlord's
employees and agents, Landlord has no obligation to alter, remodel, improve,
repair, decorate or paint the Premises or any part thereof.
7.03 TENANT'S FAILURE TO REPAIR. If Tenant refuses or neglects to
repair and maintain the Premises properly as required hereunder, Landlord, at
any time following ten (10) days from the date on which Landlord makes a written
demand on Tenant to effect such repair and maintenance, may enter upon the
Premises and make such repairs and/or maintenance, and upon completion thereof,
Tenant agrees to pay to Landlord as additional rent, Landlord's costs for making
such repairs plus an amount not to exceed ten percent (10%) of such costs for
overhead, within ten (10) days of receipt from Landlord of a written itemized
▇▇▇▇ therefor. Any amounts not reimbursed by Tenant within such ten (10) day
period will bear interest at the Interest Rate until paid by Tenant.
ARTICLE VIII - LIENS
Tenant agrees not to permit any mechanic's, materialmen's or other liens to
be filed against all or any part of the Project, the Facility, the Building or
the Premises, nor against Tenant's leasehold interest in the Premises, by reason
of or in connection with any repairs, Alterations, improvements or other work
contracted for or undertaken by or on behalf of Tenant or materials or supplies
furnished to or obligations incurred by or on behalf of Tenant, or by reason of
any other act or omission of Tenant or Tenant's agents, employees, contractors,
licensees or invitees. Tenant agrees to indemnify, protect, defend and hold
Landlord harmless from and against any and all claims for any such liens. At
Landlord's request, Tenant agrees to provide Landlord with enforceable,
conditional and final lien releases (or other evidence reasonably requested by
Landlord to demonstrate protection from liens) from all persons furnishing labor
and/or materials at the Premises. Landlord will have the right at all reasonable
times to post on the Premises and record any notices of non-responsibility which
it deems necessary for protection from such liens. If any such liens are filed,
Tenant will, at its sole cost, promptly cause such liens to be released of
record or bonded so that it no longer affects title to the Project, the
Facility, the Building or the Premises. If Tenant fails to cause any such liens
to be so released or bonded within ten (10) days after filing thereof, such
failure will be deemed an Event of Default under Article XIX without the benefit
of any additional notice or cure period, and Landlord may, without waiving its
rights and remedies based on such breach, and without releasing Tenant from any
of its obligations, cause such liens to be released by any means it shall deem
proper, including payment in satisfaction of the claims giving rise to such
liens. Tenant agrees to pay to Landlord as additional rent within ten (10) days
after receipt of invoice from Landlord, any sum paid by Landlord to remove such
liens, together with interest at the Interest Rate from the date of such payment
by Landlord.
ARTICLE IX - ASSIGNMENT AND SUBLETTING
9.01 RIGHT TO ASSIGN, SUBLEASE AND ENCUMBER. Landlord and Tenant
recognize and specifically agree that this Article IX is an economic provision,
like Rent, and that Landlord's right to recapture, and to receive any excess
consideration, has been granted by Tenant to Landlord in consideration for other
economic concessions granted by Landlord to Tenant in this Lease. Except as
expressly provided in Section 9.12 below, Tenant may not assign or encumber its
interest in this Lease or in the Premises, or sublease all or any part of the
Premises, or allow any other person or entity to occupy or use all or any part
of the Premises (any such assignment, encumbrance, sublease, or the like shall
sometimes be referred to herein as a "Transfer"), without first obtaining
Landlord's prior written consent, which consent Landlord will not unreasonably
withhold. Any Transfer without Landlord's prior written prior consent shall be
voidable, at Landlord's election, and shall constitute an Event of Default under
Article XIX. No consent to any Transfer shall constitute a further waiver of
the provisions of this Section.
9.02 TRANSFER NOTICE. If Tenant desires to effect a Transfer, then at
least thirty (30) days prior to the date when Tenant desires the Transfer to be
effective (the "Transfer Date"), Tenant agrees to give Landlord a
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notice (the "Transfer Notice"), stating the name, address and business of the
proposed assignee, sublessee or other transferee (sometimes referred to
hereinafter as "Transferee") and its proposed use of the Premises, reasonable
information (including references) concerning the character, ownership and
financial condition of the proposed Transferee (including, without limitation,
its most recent financial reports), the Transfer Date, any ownership or
commercial relationship between Tenant and the proposed Transferee, and the
consideration and all other material terms and conditions of the proposed
Transfer, all in such detail as Landlord may reasonably require and such
additional information related to the proposed Transfer or Transferee as
Landlord may reasonably request. If Landlord reasonably requests additional
detail or information, the Transfer Notice will not be deemed to have been
received and Landlord may withhold consent to such Transfer until Landlord
receives such additional detail or information.
9.03 LANDLORD'S OPTIONS. Within fifteen (15) days of Landlord's
receipt of any Transfer Notice and any additional information requested by
Landlord, Landlord will elect to do one of the following:
(a) consent to the proposed Transfer;
(b) refuse such consent, which refusal shall be on reasonable grounds
including, without limitation, those set forth in Section 9.04 below; or
(c) terminate this Lease as to all or such portion of the Premises
which is proposed to be sublet or assigned and recapture all or such
portion of the Premises for reletting by Landlord.
9.04 REASONABLE DISAPPROVAL. Landlord and Tenant hereby acknowledge
that Landlord's disapproval of any proposed Transfer pursuant to Section 9.03(b)
will be deemed reasonably withheld if based upon any reasonable factor,
including, without limitation, any or all of the following factors: (i) if the
net effective rent payable by the Transferee (adjusted on a rentable square foot
basis) is less than the net effective rent then being quoted by Landlord for new
leases in the Building for comparable size space for a comparable period of
time, taking into consideration whether such proposed Transfer is an assignment
or sublease, as applicable, the length of the remaining Term and the incentives
given to the subtenant or assignee, as the case may be (i.e., improvements made
to prepare the premises demised under the sublease or assignment, as applicable,
for such subtenant's or assignee's occupancy and free rent); (ii) the proposed
Transferee is a Governmental Entity, if the proposed Transferee is entitled,
directly or indirectly, to diplomatic or sovereign immunity or shall not be
subject to the service of process in, and the jurisdiction of, the courts of the
State of California; (iii) the portion of the Premises to be sublet or assigned
is irregular in shape with inadequate means of ingress and egress; (iv) the use
of the Premises by the Transferee (A) is not permitted by the use provisions in
Article V hereof, or (B) violates any exclusive use granted by Landlord to
another tenant in the Project or the Facility; (v) the Transfer would likely
result in an increase (other than to a de minimus extent) in the use of the
Parking Facilities or Common Area by the Transferee's employees or visitors,
and/or increase (other than to a de minimis extent) the demand upon utilities
and services to be provided by Landlord to the Premises or the Facility; (vi)
the Transferee is not a reputable person or entity or does not have the
financial capability to fulfill the obligations imposed by the Transfer and this
Lease (or has not furnished Landlord with reasonable proof thereof); or (vii)
the proposed Transferee is engaged in a business or activity, or the Premises or
the relevant part thereof, will be used in a manner, which is not in keeping
with the then standards of the Building or the Facility; (viii) there shall be
more than three (3) subtenants of the Premises; (ix) Tenant shall have
advertised or publicized in any form of media the availability of the Premises
without prior notice to and approval by Landlord, or if any such advertisement
shall state the name (as distinguished from the address) of the Facility, the
Building or the proposed rental; it being understood and agreed that Landlord's
approval of any such media advertisement shall not be unreasonably withheld or
delayed provided that any such media advertisement shall be prepared in a first-
class manner consistent with Landlord's professional standards; or (x) the form
of the proposed sublease or instrument of assignment (A) shall not be in form
reasonably satisfactory to Landlord, or (B) shall not comply with the applicable
provisions of this Article IX.
9.05 ADDITIONAL CONDITIONS. A condition to Landlord's consent to any
Transfer of this Lease will be the delivery to Landlord of a true copy of the
fully executed instrument of assignment, sublease, transfer or hypothecation,
and, in the case of an assignment, the delivery to Landlord of an agreement
executed by the Transferee in form and substance reasonably satisfactory to
Landlord, whereby the Transferee assumes and agrees to be bound by all of the
terms and provisions of this Lease and to perform all of the obligations of
Tenant hereunder. As a condition for granting its consent to any assignment or
sublease, Landlord may require that the assignee or sublessee remit directly to
Landlord on a monthly basis, all monies due to Tenant by said assignee or
sublessee. As a condition to Landlord's consent to any sublease, such sublease
must provide that it is subject and subordinate to this Lease and to all
mortgages; that Landlord may enforce the provisions of the sublease, including
collection of rent; that in the event of a default by the sublessee or
termination of this Lease for any reason, including, without limitation, a
voluntary surrender by Tenant, or in the event of any reentry or repossession of
the Premises by Landlord, Landlord may, at its option, either (i) terminate the
sublease, or (ii) take over all of the right, title and interest of Tenant, as
sublessor, under such sublease, in which case such sublessee will attorn to
Landlord, but that nevertheless Landlord will not (1) be liable for any previous
act or omission of Tenant under such sublease, (2) be subject to any
counterclaim, defense or offset previously accrued in favor of the sublessee
against Tenant, or (3) be bound by any previous modification of any sublease
made
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without Landlord's written consent, or by any previous prepayment by sublessee
of more than one month's rent.
9.06 EXCESS RENT. If Landlord consents to any assignment of this
Lease, Tenant agrees to pay to Landlord, as additional rent, fifty percent (50%)
of all sums and other consideration payable to and for the benefit of Tenant by
the assignee on account of the assignment, as and when such sums and other
consideration are due and payable by the assignee to or for the benefit of
Tenant (or, if Landlord so requires, and without any release of Tenant's
liability for the same, Tenant agrees to instruct the assignee to pay such sums
and other consideration directly to Landlord). If for any proposed sublease
Tenant receives rent or other consideration, either initially or over the term
of the sublease, in excess of the rent fairly allocable to the portion of the
Premises which is subleased based on square footage, Tenant agrees to pay to
Landlord as additional rent fifty percent (50%) of the excess of each such
payment of rent or other consideration received by Tenant promptly after its
receipt. In calculating excess rent or other consideration which may be payable
to Landlord under this Section 9.06, Tenant will be entitled to deduct
commercially reasonable third party brokerage commissions and attorneys' fees
and other amounts reasonably and actually expended by Tenant in connection with
such assignment or subletting if acceptable written evidence of such
expenditures is provided to Landlord.
9.07 RECAPTURE RIGHTS. If Tenant requests Landlord's consent to any
assignment of this Lease, any subletting all or substantially all of the
Premises, any subletting of all or substantially all of Suite 400 or any
subletting of all or substantially all of Suite 300, Landlord will have the
right, as provided in Section 9.03(c), to terminate this Lease as to all or such
portion of the Premises which is proposed to be sublet or assigned effective as
of the date Tenant proposes to sublet or assign all or less than all of the
Premises. Landlord's right to terminate this Lease as to less than all of the
Premises proposed to be sublet or assigned will not terminate as to any future
additional subletting or assignment as a result of Landlord's consent to a
subletting of less than all of the Premises or Landlord's failure to exercise
its termination right with respect to any subletting or assignment. Landlord
will exercise such termination right, if at all, by giving written notice to
Tenant within thirty (30) days of receipt by Landlord of the financial
responsibility information required by this Article IX. Tenant understands and
acknowledges that the option, as provided in this Article IX, to terminate this
Lease as to all or such portion of the Premises which is proposed to be sublet
or assigned rather than approve the subletting or assignment of all or a portion
of the Premises, is a material inducement for Landlord's agreeing to lease the
Premises to Tenant upon the terms and conditions herein set forth. In the event
of any such termination with respect to less than all of the Premises, the cost
of segregating the recaptured space from the balance of the Premises will be
paid by Tenant and Tenant's future monetary obligations under this Lease will be
reduced proportionately on a square footage basis to correspond to the balance
of the Premises which Tenant continues to lease.
9.08 NO RELEASE. No Transfer will release Tenant of Tenant's
obligations under this Lease or alter the primary liability of Tenant to pay the
Rent and to perform all other obligations to be performed by Tenant hereunder.
Landlord may require that any Transferee remit directly to Landlord on a
monthly basis, all monies due Tenant by said Transferee. However, the
acceptance of Rent by Landlord from any other person will not be deemed to be a
waiver by Landlord of any provision hereof. Consent by Landlord to one Transfer
will not be deemed consent to any subsequent Transfer. In the event of default
by any Transferee of Tenant or any successor of Tenant in the performance of any
of the terms hereof, Landlord may proceed directly against Tenant without the
necessity of exhausting remedies against such Transferee or successor. Landlord
may consent to subsequent assignments of this Lease or sublettings or amendments
or modifications to this Lease with assignees of Tenant, without notifying
Tenant, or any successor of Tenant, and without obtaining its or their consent
thereto and any such actions will not relieve Tenant of liability under this
Lease. If Landlord shall decline to give its consent to any proposed Transfer,
or if Landlord shall exercise any of its options under Section 9.03, Tenant
shall indemnify, defend and hold harmless Landlord against and from any and all
loss, liability, damages, costs and expenses (including reasonable counsel fees)
resulting from any claims that may be made against Landlord by the proposed
Transferee or by any brokers or other persons claiming a commission or similar
compensation in connection with the proposed Transfer.
9.09 ADMINISTRATIVE AND ATTORNEYS' FEES. If Tenant effects a Transfer
or requests the consent of Landlord to any Transfer (whether or not such
Transfer is consummated), then, upon demand, Tenant agrees to pay Landlord a
non-refundable administrative fee of One Thousand Five Hundred Dollars
($1,500.00), plus any reasonable attorneys' and paralegal fees incurred by
Landlord in connection with such Transfer or request for consent or the
reasonable value thereof (whether attributable to Landlord's in-house attorneys
or paralegals or otherwise). Acceptance of the One Thousand Five Hundred Dollars
($1,500.00) administrative fee and/or reimbursement of Landlord's attorneys' and
paralegal fees will in no event obligate Landlord to consent to any proposed
Transfer.
9.10 EFFECTIVENESS CONDITIONED UPON ASSUMPTION. Any Transfer shall be
made only if, and shall not be effective until, the Transferee shall execute,
acknowledge and deliver to Landlord an agreement in form and substance
satisfactory to Landlord whereby the Transferee shall assume the obligations of
this Lease on the part of Tenant to be performed or observed and whereby the
Transferee shall agree that the provisions in Section 9.01 shall,
notwithstanding such Transfer, continue to be binding upon it in respect of all
future Transfers. The original named Tenant covenants that, notwithstanding any
Transfer, whether or not in violation of the provisions of this Lease, and
notwithstanding the acceptance of Rent and/or additional rent by Landlord from
an assignee, transferee or any other party, the original named Tenant shall
remain fully liable for the payment of the Rent and additional rent and for the
other obligations of this Lease on the part of Tenant to be performed or
observed.
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9.11 LIABILITY OF TENANT. The joint and several liability of Tenant
and any immediate or remote successor in interest of Tenant and the due
performance of the obligations of this Lease on Tenant's part to be performed or
observed shall not be discharged, released or impaired in any respect by any
agreement or stipulation made by Landlord extending the time, or modifying any
of the obligations, of this Lease, or by any waiver or failure of Landlord to
enforce any of the obligations of this Lease.
9.12 RELATED CORPORATION. Tenant may, without Landlord's consent,
permit any Related Corporation to sublet all or part of the Premises or take an
assignment of this Lease for any of the purposes permitted to Tenant, provided
and upon the condition that Tenant has given Landlord not less than thirty (30)
days prior written notice thereof, Tenant shall utilize a form of sublease or
assignment, as the case may be, reasonably acceptable to Landlord and meeting
the requirements of this Lease, including, without limitation this Article IX.
Such subletting shall not be deemed to vest in any such Related Corporation any
right or interest in this Lease or the Premises nor shall it relieve, release,
impair or discharge any of Tenant's obligations hereunder. Furthermore, such
sublease or assignment, as the case may be, shall be subject to Tenant
furnishing Landlord, prior to the commencement of the term thereof, with (i)
adequate proof that such Related Corporation has been duly organized or formed,
as the case may be, and is in good standing in the jurisdiction of its
incorporation or formation, as the case may be, and (ii) resolutions of its
Board of Directors certified by the appropriate corporate officer or partnership
consents, as applicable, authorizing such sublease or assignment, as the case
may be.
ARTICLE X - INSURANCE AND INDEMNIFICATION
10.01 LIMITATION ON LANDLORD'S LIABILITY. Neither Landlord nor
Landlord's agents or employees shall be liable to Tenant and Tenant hereby
waives all claims against Landlord, its agents and employees for any injury or
damage to any person or property in, upon or about the Premises, the Building or
the Facility, by or from any cause whatsoever (other than due to gross
negligence or willful misconduct of the Landlord, or its agents or employees)
and, without limiting the generality of the foregoing, whether caused by water
leakage of any character from the roof, walls, basement or other portion of the
Premises, the Building or the Facility, or caused by gas, fire, steam, oil or
electricity in, upon or about the Premises or Facility. Landlord and Landlord's
agents and employees shall not be liable for any damage to any of Tenant's
personal property entrusted to Landlord, and its employees, nor for loss of or
damage to any of Tenant's personal property by theft or otherwise except when
caused by Landlord's gross negligence or willful misconduct. Landlord and
Landlord's agents and employees shall not be liable for any latent or patent
defect in the Premises or the Facility or for any consequential damages arising
out of any loss of use of the Premises. Tenant shall give prompt written notice
to Landlord in case of damage caused by fire or accident on the Premises. Tenant
shall look solely to Landlord to enforce Landlord's obligations hereunder and
shall not seek any damages against any of Landlord Indemnified Parties (as
hereinafter defined). The liability of Landlord for Landlord's obligations under
this Lease shall not exceed and shall be limited to Landlord's interest in the
Building and Tenant shall not look to any other property or assets in seeking
either to enforce Landlord's obligations under this Lease to satisfy a judgment
for Landlord's failure to perform such obligations. Notwithstanding the
foregoing, Tenant shall have recourse against Landlord to the extent of the net
proceeds realized by Landlord on the sale of the Building.
10.02 INDEMNIFICATION OF LANDLORD. Tenant hereby agrees to indemnify,
protect, defend and hold Landlord and its partners, shareholders, officers,
directors, employees, agents and representatives ("Landlord Indemnified
Parties") harmless from and against any and all claims, damages, costs, losses
or liability (i) for any death, injury or damage to any person or property
whatsoever, (A) occurring in, on or about the Premises or any portion thereof,
or (B) occurring in, on or about the Premises, the Facility or the Project or
any portion thereof, when such injury or damage shall be caused in part or in
whole by the act, neglect, fault or omission of any duty with respect to the
same by Tenant, its agents, servants, employees, guests, licensees or invitees
excluding therefrom any injury or damage caused by or resulting solely from the
gross negligence or willful misconduct of Landlord (ii) of whatever nature
against Landlord arising from any act, omission or negligence of Tenant, its
contractors, licensees, agents, servants, employees, invitees or visitors
including any claims arising from any act, omission or negligence of Landlord
and Tenant. Tenant hereby agrees to indemnify, protect, defend and hold
harmless Landlord and all Landlord Indemnified Parties from and against any and
all claims, damages, costs, liability or losses by or on behalf of any person,
firm or corporation arising from the conduct or management of any work,
alteration, addition, improvement or thing whatsoever done by or on behalf of
Tenant in or about the Premises or arising from transactions of Tenant,
concerning the Premises and hereby agrees to indemnify, protect, defend and
hold Landlord and all Landlord Indemnified Parties harmless from and against any
and all liens or claims arising from any breach or default on the part of Tenant
in the performance of any covenant or agreement on the part of Tenant to be
performed pursuant to the terms of this Lease or arising from any act or
negligence of Tenant, or any of its agents, contractors, subcontractors,
material men, servants, employees or licensees, and from and against all costs,
reasonable attorney's fees, expenses and liabilities incurred in connection with
any such claim or action or proceeding brought thereon. In case any action or
proceeding is brought against Landlord or any Landlord Indemnified Parties by
reason of any claims or liability within the limits of the foregoing
indemnities, Tenant shall defend such action or proceeding at Tenant's sole
expense by counsel reasonably satisfactory to Landlord. In the event Tenant
does not provide such a defense against any and all claims, demands, actions or
causes of action, threatened or actual, then Tenant shall in addition to the
above, pay to Landlord the reasonable attorneys' fees, legal expenses and costs
incurred by Landlord in providing or
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preparing such defense, and Tenant agrees to cooperate with Landlord in such
defense, including, without limitation, the providing of affidavits and
testimony upon request of Landlord. Landlord agrees to cooperate with Tenant in
such defense in the event that Tenant and not Landlord undertakes such defense.
10.03 LANDLORD'S INDEMNITY. Notwithstanding anything to the contrary
contained in Sections 10.01 or 10.02 above, Tenant shall not be required to
protect, defend, save harmless or indemnify Landlord from any liability for
injury, loss, accident or damage to any person or property resulting solely and
directly form Landlord's grossly negligent acts or omissions or willful
misconduct or that of Landlord's agents or employees in connection with
Landlord's activities on or about the Premises, the Building or the Facility,
and, subject to the terms of Section 10.06 below, Landlord hereby indemnifies
and agrees to protect, defend and hold Tenant harmless from and against any
liability for injury, loss, accident or damage to any person or property
resulting solely and directly from Landlord's grossly negligent acts or
omissions or willful misconduct or that of Landlord's agents and employees in
connection with Landlord's activities in or about the Building or the Facility.
Such exclusion from Tenant's indemnity and such agreement by Landlord to so
indemnify and hold Tenant harmless are not intended to and shall not relieve any
insurance carrier of its obligations under policies required to be carried by
Tenant pursuant to the provisions of this Lease to the extent that such policies
cover (or, if such policies would have been carried as required, would have
covered) the result of grossly negligent acts or omissions or willful misconduct
of Landlord or those of its agents or employees.
10.04 SURVIVAL OF INDEMNITIES. The provisions of Sections 10.01, 10.02
and 10.03 together with any other indemnification provisions in this Lease shall
survive the expiration or termination of this Lease with respect to any claims,
expenses or liability occurring prior to such expiration or termination.
Tenant's covenants, agreements and indemnification obligations in Sections 10.01
and 10.02 above and not intended to and shall not relieve any insurance carrier
of its obligations under policies required to be carried by Tenant pursuant to
the provisions of this Lease.
10.05 TENANT'S INSURANCE. Tenant shall purchase, at its own expense,
and keep in force during the Term, the following insurance:
(a) "All Risks" property insurance including at least the following
perils: fire and extended coverage, smoke damage, vandalism, malicious
mischief, sprinkler leakage (including earthquake sprinkler leakage). This
insurance policy must be upon all property owned by Tenant, for which
Tenant is legally liable, or which is installed at Tenant's expense, and
which is located in the Building including, without limitation, any tenant
improvements which satisfy the foregoing qualification and any Alterations,
and all furniture, fittings, installations, fixtures and any other personal
property of Tenant, in an amount not less than the full replacement cost
thereof.
(b) One (1) year insurance coverage for business interruption and loss
of income and extra expense insuring the same perils described in Section
10.05(a) above, in such amounts as will reimburse Tenant for any direct or
indirect loss of earnings attributable to any such perils including
prevention of access to the Premises, Tenant's parking areas or the
Facility as a result of any such perils.
(c) Commercial General Liability Insurance or Comprehensive General
Liability Insurance (on an occurrence form) insuring bodily injury,
personal injury and property damage including the following divisions and
extensions of coverage: Premises and Operations; Owners and Contractors
protective; blanket contractual liability (including coverage for Tenant's
indemnity obligations under this Lease); products and completed operations;
liquor liability (if Tenant serves alcohol on the Premises); and fire and
water damage legal liability in an amount sufficient to cover the
replacement value of the Premises, including tenant improvements, that are
rented under the terms of this Lease. Such insurance must have the
following minimum limits of liability: bodily injury, personal injury and
property damage - $1,000,000 each occurrence, provided that if liability
coverage is provided by a Commercial General Liability policy the general
aggregate limit shall apply separately and in total to this location only
(per location general aggregate), and provided further, such minimum limits
of liability may be adjusted from year to year to reflect increases in
coverages as recommended by Landlord's insurance carrier as being prudent
and commercially reasonable for tenants of first class office complexes
comparable to the Facility, rounded to the nearest five hundred thousand
dollars.
(d) Comprehensive Automobile Liability insuring bodily injury and
property damage arising from all owned and hired vehicles, if any, with
minimum limits of liability of $1,000,000 per accident.
(e) Worker's Compensation as required by the laws of the State of
California with the following minimum limits of liability: Coverage A -
statutory benefits; Coverage B - $1,000,000 per accident and disease.
(f) Any other form or forms of insurance as Tenant or Landlord or any
mortgagees of Landlord may reasonably require from time to time in form, in
amounts, and for insurance risks against which, a prudent tenant would
protect itself, but only to the extent coverage for such risks and amounts
are available in the insurance market at commercially acceptable rates.
Landlord makes no representation that the limits of liability required to
be carried by Tenant under the terms of this Lease are adequate to protect
Tenant's interests and Tenant should obtain such additional insurance or
increased liability limits as Tenant deems
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appropriate. Tenant's insurance policies shall in all events: (i) name
Landlord, Landlord's property manager and any party holding an interest in
this Lease or to which this Lease may be subordinated, as additional
insureds; (ii) provide that said insurance shall not be canceled or altered
unless thirty (30) days' prior written notice shall have been given to
Landlord and such cancellation or alteration shall not be effective until
such notice shall have been given to Landlord; and (iii) be issued by
companies licensed to do business in the State of California and have a
Best key rating of at least "A" "X" or better. All liability insurance
under this Section 10.05 shall be primary and noncontributing with any
insurance which may be carried by Landlord. The limits of said insurance
shall not, however, limit the liability of Tenant under Sections 10.01 and
10.02. Tenant shall deliver to Landlord original certificates from the
issuing insurance companies evidencing that said insurance is in full force
and effect and complies with the requirements of this Section 10.05.
10.06 WAIVER OF SUBROGATION. To the extent permitted by law and
without affecting the coverage provided by insurance required to be maintained
hereunder, Landlord and Tenant each waive any right to recover against the other
for (i) damages for injury to or death of persons, (ii) damage to property,
(iii) damage to the Premises or the Facility or any part thereof, (iv) claims
arising by reason of the foregoing, but only to the extent that any of the
foregoing damage or damages and/or claims referred to above are covered (and
only to the extent of such coverage) by insurance actually carried by either
Landlord or Tenant. This provision is intended to waive fully, and for the
benefit of each party, any rights and or claims which might give rise to a right
of subrogation on any insurance carrier. The coverage obtained by each party
pursuant to this Lease shall include, without limitation, a waiver of
subrogation by the carrier which conforms to the provisions of this Article X.
ARTICLE XI - SERVICES AND UTILITIES
11.01 MAINTENANCE BY LANDLORD. Landlord shall cause to be maintained
the Facility Common Area, including lobbies, stairs, elevators, corridors and
restrooms, the windows in the Facility, the mechanical, plumbing and electrical
equipment serving the Premises or the Facility, and the structure itself, in
good order and condition, except for damage occasioned by the act of Tenant,
which damage Landlord shall cause to be repaired, at Tenant's expense.
11.02 DELIVERY OF SERVICES AND UTILITIES. Subject to other provisions
in this Lease and to the Facility rules and regulations promulgated by Landlord
from time to time, Landlord shall cause to be furnished to the Premises during
the periods from 7:00 A.M. to 6:00 P.M., Monday through Friday and 8:00 A.M. to
1:00 P.M., Saturday (but exclusive, in any event, of New Year's Day, Memorial
Day, Independence Day, Labor Day, Thanksgiving and Christmas) (collectively,
"Normal Business Hours"), heat and air conditioning required, in Landlord's
judgment, for the comfortable use and occupation for the Permitted Use of the
Premises. Landlord shall provide water and electricity suitable for the
Permitted Use of the Premises on a twenty-four (24) hour per day, seven (7) days
per week basis. Landlord shall have no obligation to provide additional or
after-hours heating or air conditioning, except as provided in Section 11.05.
Tenant also agrees at all times to cooperate fully with Landlord and to abide by
all the regulations and requirements which Landlord may prescribe for the proper
function and protection of heating, ventilating and air conditioning systems.
Wherever heat-generating machines, excess lighting or equipment are used in the
Premises which affect the temperature otherwise maintained by the air
conditioning system, Landlord reserves the right to install supplementary air
conditioning units in the Premises, and the cost thereof, including the cost of
installation, operation and maintenance thereof, shall be paid by Tenant to
Landlord within ten (10) days after written notice by Landlord. Landlord shall
provide janitorial services sufficient to keep the Premises in a clean
condition, provided that Tenant shall leave the Premises in a reasonably tidy
condition at the end of each business day.
11.03 EQUIPMENT REQUIRING EXCESSIVE UTILITIES. Landlord acknowledges
that Tenant, without Landlord's consent, shall have the right to install and
operate equipment and machinery normal for modern office purposes including,
without limitation, calculators, typewriters, word processors, personal
computers, copying machines and computer terminals. Landlord's review and
approval hereunder shall be principally directed for determining the adequacy of
the existing HVAC system to accommodate Tenant's intended uses. Tenant shall
not, without the prior written consent of Landlord, use (except as provided in
the first sentence of this Section 11.03) any apparatus or device in the
Premises using excess lighting or using current in excess of that which is
determined by Landlord as reasonable and normal for the Permitted Use or which
will in any way increase the amount of electricity or water usually furnished or
supplied for the Permitted Use of the Premises.
11.04 RIGHT TO CURTAIL SERVICES AND UTILITIES. Landlord shall have the
sole discretion to reduce or cease any services or utilities to the Premises or
the Facility by reason of (i) the installation, use or interruption of use of
any equipment in connection with the furnishing of any of the foregoing
utilities and services, (ii) failure to furnish or delay in furnishing any such
utilities or services when such failure or delay is caused by acts of God or the
elements, labor disturbances of any character or any other accidents or breakage
or other conditions beyond the reasonable control of Landlord, (iii) the
limitation, curtailment, rationing or restriction on use of water, electricity,
gas or any other form of energy or any other services or utilities whatsoever
serving the Premises or the Facility, necessary to comply with Applicable Law or
any governmental energy conservation program, and (iv) the making of any
repairs, additions, alterations or improvements to the Facility or the
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Premises until such repairs, additions, alterations, or improvements have been
completed. No such reduction or cessation of services or utilities shall
constitute an eviction or disturbance of Tenant's use or possession of the
Facility, or a breach by Landlord of any of its obligations hereunder, or render
Landlord liable for damages, including but not limited to any damages,
compensation or claims arising from any reduction or cessation of services or
entitle Tenant to any compensation or to any abatement or diminution of Rent or
relieve Tenant of any of its obligations under this Lease. Notwithstanding the
foregoing, in the exercise of its rights set forth in this Section 11.04,
Landlord shall use reasonable efforts to minimize material interference with
Tenant's use of the Premises, which reasonable efforts shall not require
Landlord to employ overtime or premium-pay labor. Landlord shall use reasonable
diligence to cause such services to be restored where it is within Landlord's
reasonable control to do so.
11.05 AFTER HOURS AND ADDITIONAL SERVICES. The Rent does not include
any charge to Tenant for the furnishing of any additional service of heat,
cooled air or mechanical ventilation or elevator service to the Premises during
periods other than during Normal Business Hours (hereinafter referred to as "
Overtime Periods"). Accordingly, if Landlord shall furnish any (i) passenger
elevator facilities to Tenant during Overtime Periods or freight elevator
facilities or (ii) heat, cooled air or ventilation to the Premises during
Overtime Periods, then Tenant shall pay Landlord additional rent for such
facilities or services (A) during the first sixty-two (62) months of the Term,
at the standard rates then fixed by Landlord for the Facility or, if no such
rates are then fixed, at reasonable rates, and (B) at any time thereafter, at
the standard rates then fixed by Landlord for the Facility plus a ten percent
(10%) administrative fee or, if no such rates are then fixed, at reasonable
rates. Tenant may use one (1) freight elevator for Tenant's initial move into
the Premises at no charge provided that (i) Tenant shall have previously
requested Landlord's approval of Tenant's use of the freight elevator on such
date and Landlord shall have approved same, (ii) Tenant shall have previously
furnished to Landlord evidence of the insurance required to be obtained and
maintained by Tenant pursuant to Article X hereof, (iii) such move shall be
effectuated at a time satisfactory to Landlord, and (iv) Tenant shall pay for
any security reasonably required by Landlord in connection therewith. Neither
the facilities nor the services referred to in this Section 11.05 shall be
furnished to Tenant or the Premises if Landlord has not received advance notice
from Tenant specifying the particular facilities or services requested by Tenant
at least twenty-four (24) hours prior to the date on which the facilities or
services are to be furnished (other than if Tenant is requesting the use of HVAC
during periods other than during Normal Business Hours, hereinafter referred to
as "Extra HVAC Use", in which case Tenant must give Landlord a minimum of two
(2) hours advance notice specifying the times of Extra HVAC Use, which notice
must be given to Landlord during Normal Business Hours); or if Tenant is in
default under or in breach of any of the terms, covenants or conditions of this
Lease; or if Landlord shall determine, in its sole and exclusive discretion,
that such facilities or services are requested in connection with, or the use
thereof shall create or aid in a default under or a breach of any term, covenant
or condition of this Lease. If more than one tenant in the Building shall
request Extra HVAC Use then the cost thereof chargeable to Tenant shall be
determined by dividing the cost of such Extra HVAC Use among Tenant and all
other requesting tenants so that Tenant shall not pay more than its pro rata
share of the charges imposed for such Extra HVAC Use. All of the facilities and
services referred to in this Section 11.05 are conveniences and are not and
shall not be deemed to be appurtenances to the Premises, and the failure of
Landlord to furnish any or all of such facilities or services shall not
constitute or give rise to any claim of an actual or constructive eviction, in
whole or in part, or entitle Tenant to any abatement or diminution of Rent, or
relieve Tenant from any of its obligations under this Lease, or impose any
liability upon Landlord or its agents by reason of inconvenience or annoyance to
Tenant, or injury to or interruption of Tenant's business or otherwise.
11.06 SATELLITE ANTENNA. During the term of this Lease, Tenant shall
have the non-exclusive right, at its sole cost and expense, to install a
satellite dish on the roof of the 3347 Building, provided as a condition to
Tenant's right to install, use, operate and maintain such roof top equipment,
Tenant shall enter into a written license agreement in substantially the form of
Exhibit I attached hereto.
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ARTICLE XII - ESTOPPEL CERTIFICATE
Within (10) days following any written request which Landlord may make from
time to time, Tenant shall execute and deliver to Landlord an estoppel
certificate substantially in the form attached hereto as Exhibit F and
---------
incorporated herein by reference, indicating thereon any exceptions thereto
which may exist at that time. Failure by Tenant to execute and deliver such
certificate shall constitute an acknowledgment by Tenant that the statements
included in Exhibit F are true and correct without exception. Landlord and
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Tenant intend that any statement delivered pursuant to this Article XII may be
relied upon by any mortgagee, beneficiary, purchaser or prospective purchaser of
the Project, the Facility or any interest therein. Tenant agrees to indemnify
and protect Landlord from and against any and all claims, damages, losses,
liabilities and expenses (including attorneys' fees and costs) attributable to
any failure by Tenant to timely deliver any such estoppel certificate to
Landlord as required by this Article XII. Landlord shall have the right to
substitute for the attached Exhibit F a certificate in form required by
---------
Landlord's mortgagee, provider of financing or purchaser of property.
ARTICLE XIII - PARKING
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13.01 SPACES. Subject to the terms of the REA, during the Term of this
Lease Landlord shall provide Tenant with or cause Tenant to be provided with (i)
the number of non-exclusive, unreserved parking spaces designated in the Summary
of Basic Lease Information and (ii) the number of non-exclusive, reserved
surface parking spaces designated in the Summary of Basic Lease Information.
Notwithstanding the foregoing, Tenant shall have the option to relinquish its
right to use any of such non-exclusive, reserved surface parking spaces or non-
exclusive, unreserved parking spaces upon not less than sixty (60) days prior
written notice to Landlord, following which Tenant shall have no obligation to
use or pay for any of such relinquished parking spaces. Tenant acknowledges that
if Tenant elects to relinquish all or any of the non-exclusive, reserved surface
parking spaces or the non-exclusive, unreserved parking spaces, as the case may
be, Landlord shall have no further obligation under this Lease at any time
during the Term to make such non-exclusive, reserved surface parking spaces or
non-exclusive, unreserved parking spaces, as the case may be, available to
Tenant.Tenant's use of parking spaces within the Parking Facilities may be
subject to any sticker or permit system implemented by Landlord at any time.
Landlord or the operator of the Parking Facilities shall have the right to
change the location of parking from time to time.
13.02 CONTROL. Subject to the terms of the REA, Landlord shall have
the sole and exclusive control of the Parking Facilities. Landlord may, at any
time and from time to time during the Term exclude any person from use or
occupancy thereof who is not a tenant or occupant of the Facility or an
employee, invitee, subtenant, guest or licensee of Tenant. Tenant shall not
cause or permit any obstruction to the free and clear use of the Parking
Facilities. Tenant shall not use or allow any of its employees or invitees to
use any parking spaces which have been specifically assigned by Landlord to
other tenants or occupants or for other uses such as visitor or short-term
parking or which have been designated by any Governmental Entity as being
restricted to certain uses. Landlord shall have no liability to Tenant, nor
shall Tenant's obligations under this Lease be in any way excused or modified,
if Tenant's parking privilege under this Lease is affected or impaired in any
way by reason of any moratorium, initiative, referendum, statute, regulation or
other governmental decree or action or pursuant to the terms of the REA or by
virtue of any act of the owner or operator of the Parking Facilities. Any
governmental charges, surcharges or other monetary obligations which may be
imposed in connection with parking privileges appurtenant to this Lease or with
the operation of the Parking Facilities shall be included as Rent. Tenant and
its invitees, subtenants, employees, agents and guests shall faithfully observe
and comply with all Applicable Laws relating to the trafficking, operation,
occupancy or use of the parking and the Parking Facilities.
13.03 GENERAL PROVISIONS. Landlord reserves the right to set and
increase monthly fees and/or daily and hourly rates for parking privileges from
time to time during the Term of this Lease; it being agreed that the current
charge for each non-exclusive, reserved surface parking space is seventy dollars
($70.00) per month, which charge is subject to increase from time to time.
Notwithstanding the foregoing, Tenant's use of the number of non-exclusive,
unreserved surface parking spaces designated in the Summary of Basic Lease
Information shall be free of charge (other than Tenant's Operating Expenses
attributable to the Parking Facilities) for the initial sixty (60) months of the
Term. Landlord may assign any unreserved and unassigned parking spaces and/or
make all or any portion of such spaces reserved, if Landlord reasonably
determines that it is necessary for orderly and efficient parking or for any
other reasonable reason. If Tenant shall fail to pay the rent for any particular
parking space or if Tenant shall fail to comply with any of the terms and
conditions of this Lease applicable to parking, Landlord may elect to recapture
all of Tenant's parking spaces and revoke any or all of Tenant's privileges with
respect to parking for the balance of the Term of this Lease if Tenant does not
cure such failure within the applicable cure period set forth in Article XIX of
this Lease. Tenant's parking rights and privileges described herein are personal
to Tenant and may not be assigned or transferred, or otherwise conveyed, without
Landlord's prior written consent, which consent Landlord may withhold in its
sole and absolute discretion. In any event, under no circumstance may Tenant's
parking rights and privileges be transferred, assigned or otherwise conveyed
separate and apart from Tenant's interest in this Lease.
13.04 COOPERATION WITH TRAFFIC MITIGATION MEASURES. Tenant agrees to
use its reasonable, good faith efforts to cooperate in traffic mitigation
programs which may be undertaken by Landlord independently, or in cooperation
with local municipalities or GOVERNMENTAL agencies or other property owners in
the vicinity of the Facility. Such programs may include, but will not be limited
to, carpools, vanpools and other ridesharing programs, public and private
transit, flexible work hours, preferential assigned parking programs and
programs to coordinate tenants within the Facility and the Project with existing
or proposed traffic mitigation programs.
13.05 PARKING RULES AND REGULATIONS. Tenant shall comply with all
rules and regulations regarding parking set forth in Exhibit G attached hereto
---------
and Tenant agrees to cause its employees, subtenants, assignees, contractors,
suppliers, customers and invitees to comply with such rules and regulations.
Landlord reserves the right from time to time to modify and/or adopt such other
reasonable and non-discriminatory rules and regulations for the Parking
Facilities as it deems reasonably necessary for the operation of the Parking
Facilities.
ARTICLE XIV - SUBSTITUTION
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At any time after execution of this Lease, Landlord reserves the right,
without Tenant's consent first being obtained, to relocate Tenant for all or a
portion of the Premises, to other premises in the Facility (the "New Premises")
upon not less than ninety (90) days prior written notice, in which event the New
Premises shall be deemed to be the Premises for all purposes hereunder, provided
however, that:
(a) The New Premises shall (i) be similar in area to the Premises,
(ii) be reasonably satisfactory to Tenant, and (iii) shall satisfy Tenant's
purposes and requirements herein;
(b) If Tenant is occupying the Premises at the time of such
substitution, Landlord shall pay the expenses of moving Tenant, its
property and equipment (including installation and connection of equipment)
to the New Premises and shall, at its sole cost, improve the New Premises
with improvements comparable in quality to those which then exist in the
Premises and those which Landlord has committed to provide or has provided
in the Premises.
ARTICLE XV - SURRENDER OF PREMISES; HOLDING OVER
15.01 SURRENDER OF PREMISES. Subject to the provisions of Article VI
regarding Alterations, at the end of the Term or other sooner termination of
this Lease, Tenant shall peaceably deliver up to Landlord possession of the
Premises, broom clean and in good order and condition, together with all
improvements, fixtures or additions thereto by whomsoever made, in the same
condition as received, or first installed, damage by fire, earthquake,
reasonable wear and tear, act of God or the elements alone excepted. Tenant may,
upon the termination of this Lease, remove all movable furniture and equipment
belonging to Tenant, at Tenant's sole cost, title to which shall be in Tenant
until such termination, and shall repair any damage caused by such removal.
Property not so removed, upon termination, shall be deemed abandoned by Tenant,
and title to the same shall thereupon pass to Landlord, but the foregoing shall
not be deemed to relieve Tenant of responsibility for the cost of removal of any
such property.
15.02 NO MERGER. The voluntary or other surrender of this Lease by
Tenant, or a mutual cancellation thereof, shall not work a merger and shall, at
Landlord's option, terminate all or any existing subleases or subtenancies or
may, at Landlord's option, operate as an assignment to it of any or all such
subleases or subtenancies.
15.03 HOLDING OVER. If Tenant shall retain possession of the Premises
or any part thereof without Landlord's consent following the expiration of the
Term or sooner termination of this Lease for any reason, then, Tenant shall pay
to Landlord for each day of such retention Basic Rent at a rate which is the
greater of (i) one hundred fifty percent (150%) of the rate of daily Basic Rent
for the last period prior to the date of such expiration or termination
("Existing Basic Rent"); or (ii) one hundred fifty percent (150%) of the then
prevailing monthly rental rate for similar office space, determined by Landlord.
Tenant shall also be liable for one hundred fifty percent (150%) of Tenant's
Share of Operating Expenses and all other items of additional rent and for the
performance of all other Lease obligations for any holdover period. Tenant shall
indemnify, protect, defend and hold Landlord harmless from any loss or liability
resulting from delay by Tenant in surrendering the Premises, including, without
limitation, any claims made by any succeeding tenant founded on such delay.
Acceptance of Rent and/or any other consideration by Landlord following
expiration or termination shall not constitute a renewal of this Lease, and
nothing contained in this Article XV shall waive Landlord's right of reentry or
any other right. Tenant shall be only a tenant at sufferance, whether or not
Landlord accepts any Rent and/or other consideration from Tenant while Tenant is
holding over without Landlord's written consent.
ARTICLE XVI - SUBORDINATION AND QUIET ENJOYMENT
16.01 SUBORDINATION. Without the necessity of any additional
subordination document being executed by Tenant, at the election of Landlord or
any mortgagee or beneficiary under a deed of trust which covers the Premises, or
any lessor or a ground or any underlying lease with respect to the Facility,
this Lease shall be subject and subordinate at all times to: (i) all ground
leases, master leases or underlying leases and covenants, conditions and
restrictions, reciprocal easement agreements, and parking agreements relating to
the operation, management and development of the Facility which may now exist
and provided any such instruments which may be created or modified after the
date of this Lease do not materially and adversely impact Tenant's use and
enjoyment of the Premises, then this Lease shall be subject and subordinate to
any such instruments which may hereafter be executed affecting the Facility, and
all amendments, renewals, modifications, consolidations, supplements and
extensions thereof, and (ii) the lien of any and all mortgages or deeds of trust
which may now exist or hereafter be executed in any amount or amounts for which
the Facility, the Premises, ground leases or underlying leases, or any portion
thereof or Landlord's interest or estate in any such items, is specified as
security and to any and all advances made on the security thereof and to all
renewals, modifications, consolidations, replacements and extensions thereof and
the rights of the parties in all such leases, agreements and instruments
(collectively, the "Superior Interests"). Notwithstanding the foregoing,
Landlord shall have the
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unconditional right to subordinate or cause to be subordinated any such Superior
Interests which may now exist or hereafter be executed in any amount or amounts
for purposes stated hereinabove to this Lease. If any such Superior Interest
shall terminate or be foreclosed upon, for any reason, then, at the election of
Landlord's successor in interest, Tenant shall, notwithstanding any
subordination, attorn to and become the Tenant of the successor in interest to
Landlord, subject to and in accordance with the terms of this Lease and any
modifications hereto. The provisions of this Section 16.01 shall be self-
operative upon any election by Landlord or any mortgagee or beneficiary and no
further instrument shall be required to give effect to said provisions. Tenant,
however, upon demand of Landlord or any such mortgagee or beneficiary, agrees to
execute, from time to time, instruments in confirmation of the foregoing
provisions of this Section 16.01, satisfactory to Landlord or any mortgagee or
beneficiary, acknowledging such attornment and setting forth the terms and
conditions of its tenancy. Nothing contained in this Section 16.01 shall be
construed to impair any right otherwise exercisable by Landlord or any such
mortgagee or beneficiary.
16.02 QUIET ENJOYMENT. Subject to the provisions of Section 16.01,
Landlord covenants and agrees that, if and so long as no Event of Default shall
occur, Tenant may peaceably and quietly hold and enjoy the Premises for the Term
of this Lease, without hindrance from Landlord or persons claiming, by, through
or under Landlord. Tenant's right to use the Premises and the Common Area as
provided in this Lease shall be subject to all Applicable Laws now in force or
which may hereafter be in force and no such Applicable Laws shall in any way
affect this Lease, ▇▇▇▇▇ Rent, relieve Tenant of any liabilities or obligations
under this Lease, or give rise to any claims whatsoever against Landlord.
16.03 NON-DISTURBANCE. Notwithstanding anything to the contrary
contained in Sections 16.01 and 16.02 above, Landlord shall use reasonable
efforts to obtain a non-disturbance agreement from any current mortgagee or
beneficiary under a deed of trust which covers the Premises on such mortgagee's
or beneficiary's standard form and Landlord shall request a non-disturbance
agreement from any future mortgagee or beneficiary under a deed of trust which
covers the Premises on such mortgagee's or beneficiary's standard form; it being
agreed that the foregoing shall not require the expenditure or payment by
Landlord of any sum whatsoever. Landlord and Tenant acknowledge and agree that
Landlord's failure to obtain any such non-disturbance agreement shall in no way
relieve Tenant of any of its obligations hereunder or affect the subordination
of this Lease as provided in this Article.
ARTICLE XVII - RULES AND REGULATIONS
Tenant shall comply with all of the rules and regulations contained on
Exhibit G attached hereto and incorporated herein by reference, as such rules
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and regulations may be revised from time to time by Landlord. To the extent
reasonably practicable, Landlord shall endeavor to provide Tenant with thirty
(30) days prior notice of the adoption of new rules and regulations or any
changes or additions to existing rules and regulations. Landlord shall not
enforce the rules and regulations in a discriminatory manner against Tenant.
ARTICLE XVIII - ENTRY
Landlord reserves the right to enter the Premises at all reasonable hours
upon reasonable prior notice (except in cases of emergency) by means of a master
key for any reasonable purpose. If Tenant shall not be personally present to
open and permit entry into the Premises at any time, Landlord may enter by means
of a master key without liability to Tenant and without affecting the Lease.
Tenant understands and agrees that all parts (except surfaces facing the
interior of the Premises) of all walls, windows and doors bounding the Premises
(including exterior Building walls, core corridor walls, doors and entrances),
all balconies, terraces and roofs adjacent to the Premises, all space in or
adjacent to the Premises used for shafts, stacks, stairways, chutes, pipes,
conduits, ducts, fan rooms, heating, air cooling, plumbing and other mechanical
facilities, service closets and other Building facilities are not part of the
Premises, and Landlord shall have the use thereof, as well as access thereto,
through the Premises for the purposes of cooperation, maintenance, alteration
and repair.
ARTICLE XIX - DEFAULT BY TENANT
19.01 EVENTS OF DEFAULT. The occurrence of any of the following and
the expiration of the applicable cure period shall constitute an "Event of
Default" on the part of Tenant:
(a) Failure to pay any installment of Basic Rent, Operating Expenses
or any other item of Rent due and payable hereunder within five (5) days
after Tenant's receipt of written notice from Landlord that said payment
has not been received.
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(b) Failure to perform or breach of any obligations, agreement or
covenant under this Lease other than as specified in Subsection (a), where
such failure or breach continues for fifteen (15) days after Tenant's
receipt of written notice of such failure, provided, however, that if the
default cannot be cured within fifteen (15) days, Tenant shall not be in
default of the Lease if Tenant promptly after notice from Landlord
commences to cure the default within the fifteen (15) day period and
thereafter diligently prosecutes the same to completion. Such notice shall
be in lieu of and not in addition to any notice required under Section 1161
of the California Code of Civil Procedure.
(c) Any attempted assignment of this Lease or subletting of the
Premises in violation of the provisions of Article IX.
(d) A general assignment by Tenant for the benefit of creditors.
(e) The filing of any voluntary petition by Tenant under the
Bankruptcy Code, or the filing of an involuntary petition by Tenant's
creditors, which involuntary petition remains undischarged for a period of
sixty (60) days. If under Applicable Laws the trustee in bankruptcy or
Tenant may affirm this Lease and continue to perform Tenant's obligations
hereunder, such trustee or Tenant shall, in such time period as may be
permitted by the bankruptcy court having jurisdiction, cure all defaults of
Tenant hereunder outstanding as of the date of the affirmance of this Lease
and provide to Landlord such adequate assurances as may be necessary to
ensure Landlord of the continued performance of Tenant's obligations under
this Lease.
(f) The employment of a trustee, receiver, liquidator, assignee,
custodian, examiner, sequestrator (or similar official) in all cases to
take possession of substantially all of Tenant's assets located at the
Premises or of Tenant's interest in this Lease or the Premises, if such
receivership remains undissolved for a period of ten (10) business days
after creation thereof.
(g) The attachment, execution or other judicial seizure or non-
judicial seizure of all or substantially all of Tenant's assets located at
the Premises or of Tenant's interest in this Lease or the Premises, if such
attachment or other seizure remains undismissed or undischarged for a
period of ten (10) business days after the levy thereof.
(h) Tenant's admission in writing of its inability to pay its debts as
they become due, Tenant's filing of a petition seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any present or future statute, law or regulation, Tenant's
filing of an answer admitting or failing timely to contest a material
allegation of such a petition filed against Tenant in any such proceeding
or, if within sixty (60) days after the commencement of any proceeding
against Tenant seeking any reorganization or arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present
or future statute, law or regulation, such proceeding shall not have been
dismissed.
If, at any time, (i) Tenant shall be comprised of two (2) or more persons, or
(ii) Tenant's obligations under this Lease shall have been guaranteed by any
person other than Tenant, or (iii) Tenant's interest in this Lease shall have
been assigned, the word "Tenant" as used in clauses (d), (e), (f), (g) and (h),
shall be deemed to mean any one or more of the persons primarily or secondarily
liable for Tenant's obligations under this Lease. Any monies received by
Landlord from or on behalf of Tenant during the pendency of any proceeding of
the types referred to in said clauses (d), (e), (f), (g) and (h) shall be deemed
paid as compensation for the use and occupation of the Premises and the
acceptance of any such compensation by Landlord shall not be deemed an
acceptance of Rent or a waiver on the part of Landlord of any rights under this
Section 19.01.
19.02 REMEDIES UPON DEFAULT OR TERMINATION.
(a) Any failure to pay Basic Rent, Operating Expenses and any other
monetary obligation to be paid by Tenant under this Lease which is
specifically designated as additional rent in this Lease shall be construed
as failure to perform the obligation for payment of Rent.
(b) In the event of the occurrence of any Event of Default, Landlord
shall have the right immediately to terminate this Lease, and at any time
thereafter to recover possession of the Premises or any part thereof and
expel and remove therefrom Tenant and any other person occupying the same,
pursuant to the order of any court of competent jurisdiction entered after
notice to Tenant and an opportunity for Tenant to be heard, and again
repossess and enjoy the Premises without prejudice to any of the remedies
that Landlord may have under this Lease, at law or equity by reason of
Tenant's default or of such termination.
(c) Even though Tenant has breached this Lease and/or abandoned the
Premises, this Lease shall continue in effect for so long as Landlord does
not terminate Tenant's right to possession under Section 19.02(b) hereof,
and Landlord may enforce all its rights and remedies under this Lease,
including, without limitation, the right to recover Rent as it becomes due;
and Landlord, without terminating this Lease, may exercise all of the
rights and remedies of a landlord under Section 1951.4 of the Civil Code of
the State of California or any successor code section. Acts of maintenance,
preservation or efforts to lease the Premises or the appointment of a
receiver upon application of Landlord to protect Landlord's interests under
this Lease shall not constitute Landlord's election to terminate Tenant's
right to possession.
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19.03 DAMAGES UPON TERMINATION. Should Landlord terminate this Lease
pursuant to the provisions of Section 19.02(b) hereof, Landlord shall have all
the rights and remedies of a landlord provided by Section 1951.2 of the Civil
Code of the State of California, or successor code section. Upon such
termination, in addition to any other rights and remedies to which Landlord may
be entitled under Applicable Laws, Landlord shall be entitled to recover from
Tenant: (i) the worth at the time of award of the unpaid Rent and other amounts
which had been earned at the time of termination; (ii) the worth at the time of
award of the amount by which the unpaid Rent which would have been earned after
termination until the time of award exceeds the amount of such Rent loss that
the Tenant proves could have been reasonably avoided; (iii) the worth at the
time of award of the amount by which the unpaid Rent for the balance of the term
after the time of award exceeds the amount of such Rent loss that the Tenant
proves could be reasonably avoided; and (iv) any other amount necessary to
compensate Landlord for all the detriment proximately caused by Tenant's failure
to perform its obligations under this Lease or which, in the ordinary course of
things, would be likely to result therefrom including, without limitation,
attorneys' fees and costs; brokers' commissions; the costs of refurbishment,
alterations, renovations and repair of the Premises, as well as the unamortized
value of free rent, reduced rent, tenant improvement allowance amounts and any
other economic concessions provided, paid for or incurred by Landlord. The
"worth at the time of award" of the amounts referred to in subsections (i) and
(ii) shall be computed with interest at the Interest Rate. The "worth at the
time of award" of the amount referred to in subsection (iii) shall be computed
by discounting such amount at the discount rate of the Federal Reserve Bank of
San Francisco at the time of award, plus one percent (1%).
19.04 OPERATING EXPENSES. For purposes of computing unpaid Rent which
would have accrued and become payable under this Lease pursuant to the
provisions of Section 19.03, for the calendar year of the default and each
future calendar year in the Term shall be deemed to be equal to Tenant's Share
of Operating Expenses for the calendar year prior to the year in which default
occurs compounded at a per annum rate equal to the mean average rate of increase
of Operating Expenses for the preceding three (3) calendar years.
19.05 PERFORMANCE BY LANDLORD. All covenants and agreements to be
performed by Tenant under any of the terms of this Lease shall be performed by
Tenant at Tenant's sole cost and expense and without any abatement of Rent. If
Tenant shall fail to pay any sum of money, other than Rent, required to be paid
by it hereunder or shall fail to perform any other act on its part to be
performed hereunder, and such failure shall continue for fifteen (15) days after
notice thereof by Landlord, Landlord may, but shall not be obligated to do so,
and without waiving or releasing Tenant from any obligations of the Tenant, make
any such payment or perform any such act on the Tenant's part to be made or
performed. All sums so paid by Landlord and all necessary incidental costs
together with interest thereon at the Interest Rate, accruing from the date of
such payment by Landlord until the date of repayment by Tenant shall be payable
as additional rent to Landlord on demand, if such sums are specifically
designated to be payable as additional rent in this Lease, and Tenant covenants
to pay such sums, and Landlord shall have, in addition to any other right or
remedy of Landlord, the same right and remedies in the event of the nonpayment
thereof by Tenant as in the case of default by Tenant in the payment of the
Rent.
19.06 Intentionally Deleted.
19.07 REMEDIES CUMULATIVE. All rights, privileges and elections or
remedies of the parties are cumulative and not alternative to the extent
permitted by law except as otherwise provided herein.
Initial: Landlord________ Tenant________
ARTICLE XX - DAMAGE BY FIRE OR OTHER CASUALTY
20.01 NOTICE OF LOSS. If the Premises shall be damaged by fire or
other casualty, the damages shall be repaired by and at the expense of Landlord
promptly following notice thereof by Tenant and the Rent until such repairs
shall be made shall be reduced in the proportion which the area of the part of
the Premises which is not useable by Tenant bears to the total area of the
Premises; provided, however, should Tenant reoccupy a portion of the Premises
for the conduct of its business prior to the date such repairs are made, the
Rent shall be reinstated with respect to such reoccupied portion of the Premises
and shall be payable by Tenant from the date of such occupancy. Landlord shall
have no obligation to repair any damage to, or to replace, any fixtures,
furniture, furnishings, equipment or other property or effects of Tenant.
20.02 SUBSTANTIAL OR TOTAL DAMAGE. Anything in subsection 20.01 of
this Article XX to the contrary notwithstanding, if the Premises are totally
damaged or are rendered wholly untenantable, and if Landlord shall decide not to
restore the Premises, or if the Building or the Facility shall be so damaged by
fire or other casualty that, in Landlord's opinion, either substantial
alteration, demolition or reconstruction of the Building or the Facility shall
be required (whether or not the Premises shall have been damaged or rendered
untenantable) or the Building or the Facility, after its repair, alteration or
restoration shall not be economically viable as an office complex, then in any
of such events, Landlord, at Landlord's option, may, not later than thirty (30)
days following the damage, give Tenant a notice in writing terminating this
Lease. If Landlord elects to
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terminate this Lease, the Term shall expire upon the tenth (10th) day after such
notice is given, and Tenant shall vacate the Premises and surrender the same to
Landlord. If Tenant shall not be in default under this Lease, then upon the
termination of this Lease under the conditions provided for in the preceding
sentence, Tenant's liability for Rent shall cease as of the day of such damage.
20.03 LOSS CAUSED BY TENANT OR TENANT'S EMPLOYEES. Notwithstanding
anything to the contrary contained in this Article XX, if the Premises, the
Building or the Facility are wholly or partially damaged or destroyed as a
result of the negligence or willful misconduct or omission of Tenant or Tenant's
employees, Tenant shall forthwith diligently undertake to repair or restore all
such damage or destruction at Tenant's sole cost and expense, and this Lease
shall continue in full force and effect without any abatement or reduction in
Rent or other payments owed by Tenant; provided however, that Tenant shall be
relieved of its obligation pursuant to this Section 20.03 to the extent that
insurance proceeds sufficient to complete repairs are actually received by
Landlord.
20.04 DESTRUCTION DURING FINAL YEAR. Notwithstanding anything to the
contrary contained in this Lease, if the Premises, the Building or the Facility
are wholly or partially damaged or destroyed within the final twelve (12) months
of the Term of this Lease, Landlord may, at its option, by giving Tenant notice
within thirty (30) days after notice to Landlord of the occurrence of such
damage or destruction, elect to terminate the Lease. Tenant shall have the
option to terminate this Lease if the Premises are wholly damaged, or damaged to
the extent that Tenant's use thereof is materially impaired for a period in
excess of one (1) month, within the last twelve (12) months of the Term, such
option to be exercised by Tenant delivering Landlord written notice thereof
within thirty (30) days of such damage.
20.05 DESTRUCTION OF TENANT'S PERSONAL PROPERTY, TENANT'S EXTRA
IMPROVEMENTS OR PROPERTY OF TENANT'S EMPLOYEES. In the event of any damage to
or destruction of the Premises, the Building or the Facility, under no
circumstances shall Landlord be required to repair any injury, or damage to, or
make any repairs to or replacements of, Tenant's personal property or any
improvements or Alterations installed in the Premises by or on behalf of Tenant,
and Tenant shall repair and restore all such personal property, improvements and
Alterations at Tenant's sole cost and expense. Landlord shall have no
responsibility for any contents placed or kept in or on the Premises, the
Building or the Facility by Tenant or Tenant's Employees.
20.06 EXCLUSIVE REMEDY. This Article XX shall be Tenant's sole and
exclusive remedy in the event of damage or destruction to the Premises, the
Facility or the Project, and Tenant, as a material inducement to Landlord
entering into this Lease, irrevocably waives and releases Tenant's rights under
California Civil Code Sections 1932(2) and 1933(4) or any successor statute or
laws of a similar nature. Subject to the terms of this Article XX, no damages,
compensation or claims shall be payable by Landlord for any inconvenience, any
interruption or cessation of Tenant's business, or any annoyance, arising from
any damage to or destruction of all or any portion of the Premises or any of
Tenant's property.
20.07 DELAYS. Landlord shall not be liable for reasonable delays which
may arise by reason of adjustment of fire insurance on the part of Landlord
and/or Tenant, and for reasonable delays on account of "labor troubles" or any
other cause beyond Landlord's control.
20.08 PROPERTY DAMAGE. Any Facility employee to whom any property
shall be entrusted by or on behalf of Tenant shall be deemed to be acting as
Tenant's agent with respect to such property and neither Landlord nor its agents
shall be liable for any damage to property of Tenant or of others entrusted to
employees of the Facility, nor for the loss of or damage to any property of
Tenant by theft or otherwise. Neither Landlord nor its agents shall be liable
for any injury or damage to persons or property or interruption of Tenant's
business resulting from fire, explosion, falling plaster, steam, gas,
electricity, water, rain or snow or leaks from any part of the Facility or from
the pipes, appliances or plumbing works or from the roof, street or subsurface
or from any other place or by dampness or by any other cause of whatsoever
nature; nor shall Landlord or its agents be liable for any such damage caused by
other tenants or persons in the Facility or caused by construction of any
private, public or quasi-public work; nor shall Landlord be liable for any
latent defect in the Premises or in the Facility. Anything in this Article XX to
the contrary notwithstanding, nothing in this Lease shall be construed to
relieve Landlord from responsibility directly to Tenant for any loss or damage
caused directly to Tenant wholly or in part by the gross negligence or willful
misconduct of Landlord. Nothing in the foregoing sentence shall affect any right
of Landlord to the indemnity from Tenant to which Landlord may be entitled.
Tenant shall reimburse and compensate Landlord as additional rent within five
(5) days after rendition of a statement for all expenditures made by, or damages
or fines sustained or incurred by, Landlord due to nonperformance or
noncompliance with or breach or failure to observe any term, covenant or
condition of this Lease upon Tenant's part to be kept, observed, performed or
complied with. Tenant shall give immediate notice to Landlord in case of fire or
accident in the Premises, the Building or the Facility.
ARTICLE XXI - EMINENT DOMAIN
21.01 TOTAL OR SUBSTANTIAL TAKING. If more than twenty-five percent
(25%) of the Premises are taken or appropriated under the power of eminent
domain or conveyed in lieu thereof, either party shall have the
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right to terminate this Lease at its option, and if any part of the Facility
shall be taken or appropriated under power of eminent domain or conveyed in lieu
thereof, Landlord may terminate this Lease at its option, provided Landlord also
terminates the Leases of other tenants of the Building which are leasing
comparably sized space for comparable lease terms; provided, however, that
notwithstanding any other provision to the contrary, such termination shall be
effective only to terminate Tenant's rights of possession and Tenant's
obligations to pay Rent. This Lease shall remain in effect in the event that and
to the extent that the effectiveness of the Lease is necessary under Applicable
Laws to allow the parties to obtain or receive any award of compensation in
connection with the exercise of such power of eminent domain. In either of such
events, Landlord shall receive (and Tenant shall assign to Landlord upon demand
from Landlord) any income, rent, award or any interest therein which may be paid
in connection with the exercise of such power of eminent domain except as
otherwise provided herein, and Tenant shall have no claim against Landlord for
any part of the sums paid by virtue of such proceedings; provided, however,
Tenant will have the right to recover from the condemning authority (but not
from Landlord) any compensation as may be separately awarded or recoverable by
Tenant for the taking of Tenant's furniture, fixtures, equipment and other
personal property taken, if any, for Tenant's relocation expenses, and for any
loss of goodwill or other compensable damage to Tenant's business and if and
only if such award shall not reduce Landlord's award, Tenant will also have the
right to recover from the condemning authority (but not from Landlord) any
compensation as may be separately awarded or recoverable by Tenant for the value
of Tenant's leasehold interest.
21.02 PARTIAL TAKING. If less than all of the Premises is taken and
neither party shall have elected to terminate this Lease pursuant to its right
to do so under Section 21.01, and the Premises have been damaged as a
consequence of such partial taking or appropriation or conveyance, Landlord
shall restore the Premises continuing under this Lease, at Landlord's cost and
expense; provided, however, that Landlord shall not be required to repair or
restore any injury or damage to the property of Tenant or to make any repairs or
restoration of any Alterations, additions, fixtures or improvements installed on
the Premises by or at the expense of Tenant, except to the extent that Landlord
has been compensated for such damage. Thereafter, the Rent for the remainder of
the Term shall be proportionately reduced in the proportion which the area of
the part of the Premises which is taken, appropriated or conveyed bears to the
total area of the Premises.
21.03 TEMPORARY TAKING. Notwithstanding anything to the contrary
contained in this Article XXI, if the temporary use or occupancy of any part of
the Premises shall be taken or appropriated under the power of eminent domain
during the Term, this Lease shall be and remain unaffected by such taking or
appropriation and Tenant shall continue to pay in full all Rent payable
hereunder by Tenant during the Term; in the event of any such temporary
appropriation or taking, Tenant shall be entitled to receive that portion of any
award which represents compensation for the use of or occupancy of the Premises
during the Term, and Landlord shall be entitled to receive that portion of any
award which represents the cost of restoration of the Premises and the use and
occupancy of the Premises after the end of the Term.
ARTICLE XXII - SALE BY LANDLORD
The obligations of Landlord under this Lease shall not be binding upon
Landlord named herein after the sale, conveyance, assignment or transfer by such
Landlord (or upon any subsequent landlord after the sale, conveyance, assignment
or transfer by such subsequent landlord) of its interest in the Facility or this
Lease, as the case may be, and in the event of any such sale, conveyance,
assignment or transfer, Landlord shall be and hereby is entirely freed and
relieved of all covenants and obligations of Landlord hereunder, and it shall be
deemed and construed without further agreement between the parties or their
successors in interest or between the parties and the purchaser, grantee,
assignee or other transferee that such purchaser, grantee, assignee or other
transferee has assumed and agreed to carry out all covenants of Landlord
hereunder. Neither the shareholders , directors or officers of Landlord, if
Landlord is a corporation, nor the partners comprising Landlord (nor any of the
shareholders, directors or officers of such partners), if Landlord is a
partnership (collectively, the "Parties"), shall be liable for the performance
of Landlord's obligations under this Lease. Tenant shall look solely to Landlord
to enforce Landlord's obligations hereunder and shall not seek any damages
against any of the Parties. This Lease shall not be affected by any such sale
and Tenant agrees to attorn to the purchaser or assignee.
ARTICLE XXIII - WAIVER
If either Landlord or Tenant waives the performance of any term, covenant
or condition contained in this Lease, such waiver shall not be deemed to be a
waiver of any subsequent breach of the same or of any other term, covenant or
condition contained herein. Landlord's acceptance of any item of Rent shall not
constitute a waiver of any preceding breach by Tenant of any term, covenant or
condition of this Lease, regardless of Landlord's knowledge of such preceding
breach at the time Landlord accepted such Rent. Failure by Landlord to enforce
any of the terms, covenants or conditions of this Lease for any length of time
shall not be deemed to waive Landlord's right to insist thereafter upon strict
performance by Tenant. Waiver by Landlord of any term, covenant or condition
contained in this Lease may only be made by a written document signed by
Landlord.
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ARTICLE XXIV - NOTICES
All notices and demands which may be required to be given by either party
to the other hereunder shall be in writing and shall be deemed to have been
fully given, made and delivered when: (i) sent by United States certified or
registered mail, return receipt requested, postage prepaid, or (ii) sent via a
professional courier service addressed to the noticed party at the address
specified in the Basic Lease Information, or to such other firm or to such other
place as Landlord or Tenant may from time to time designate in a notice to the
other party hereto, except that notice to Tenant delivered to the Premises shall
be adequate for all purposes of this Lease.
ARTICLE XXV - OPERATING EXPENSES
In addition to Basic Rent provided to be paid hereunder, Tenant shall pay
as additional rent, Tenant's Share of Operating Expenses in the manner set forth
below.
25.01 GENERAL. During and for each calendar year of the Term, Tenant
shall pay the difference between (i) the actual amount of Tenant's Share of
Operating Expenses for the subject calendar year, and (ii) the actual amount of
Tenant's Share of Operating Expenses for the Base Year, in monthly installments
along with its installment payments of Basic Rent. The difference between (i)
and (ii) in the preceding sentence shall be referred to in this Lease as
"Tenant's Operating Expenses."
25.02 PAYMENT OF OPERATING EXPENSES. Prior to the Term Commencement
Date, and during December of each calendar year thereafter during the Term, or
as soon thereafter as practicable, Landlord shall give Tenant written notice of
the estimated Operating Expenses for the ensuing calendar year and the
calculated estimated Tenant's Operating Expenses for the ensuing year ("Tenant's
Estimated Operating Expenses") (failure to deliver such notice shall not excuse
Tenant's obligation to pay Tenant's Operating Expenses). Tenant shall thereafter
pay equal monthly installments of Tenant's Estimated Operating Expenses for the
calendar year to which the estimate applies on the first day of each calendar
month during such calendar year, in advance, and continuing thereafter on the
first day of each subsequent month of such calendar year. All such payments
shall be construed to be payments of Rent for all purposes hereof. If Tenant's
Share changes at any time then, Tenant's monthly payments of Operating Expenses
under this Section 25.02 shall be modified commencing on the date of such change
to reflect Tenant's Share as modified. If at any time during the course of the
calendar year, Landlord reasonably determines that Tenant's Operating Expenses
will vary from Tenant's Estimated Operating Expenses by more than five percent
(5%), Landlord may, by written notice to Tenant, revise Tenant's Estimated
Operating Expenses for the balance of such calendar year and Tenant shall
thereafter pay Tenant's Estimated Operating Expenses as so revised for the
balance of the then current calendar year on the first day of each subsequent
month of such calendar year.
25.03 COMPUTATION OF OPERATING EXPENSES ADJUSTMENT. Within one hundred
twenty (120) days after the end of each calendar year or as soon thereafter as
practicable, Landlord shall deliver to Tenant a statement of the actual
Operating Expenses for the year just ended. If such statement shows that
Tenant's Operating Expenses amounted to less than Tenant's Share of actual
Operating Expenses for the calendar year just ended, then Tenant shall pay the
difference within thirty (30) days after receipt of such statement, such payment
to constitute additional rent hereunder. If such statement shows that Tenant's
Operating Expenses amounted to more than Tenant's Share of actual Operating
Expenses for the calendar year just ended, then (provided that no Event of
Default has occurred and remains uncured) Tenant shall receive a credit for the
amount of such payment against Tenant's obligation for payment of Rent next
becoming due hereunder. If this Lease has been terminated or the Term hereof has
expired before the date of such statement, then any adjustment to Tenant's
Operating Expenses shall be paid by the appropriate party within twenty (20)
days after the date of delivery of the statement. Any statement of Landlord sent
to Tenant under this Article XXV shall be conclusively binding upon Tenant
unless, within thirty (30) days after such statement is sent, Tenant shall (i)
pay to Landlord the amount set forth in such statement, without prejudice to
Tenant's right to dispute the same, and (ii) send a written notice to Landlord
objecting to such statement and specifying the respects in which such statement
is claimed to be incorrect.
25.04 MINIMUM RENT. Anything in this Article XXV to the contrary
notwithstanding, under no circumstances shall the Rent payable under this Lease
be less than the Rent set forth on the Basic Lease Information page.
25.05 PRORATION. Operating Expenses which cover a period of time not
within the Term of this Lease shall be appropriately prorated.
21
ARTICLE XXVI - TAXES PAYABLE BY TENANT
26.01 PERSONALTY. Tenant shall pay before delinquency any and all
taxes levied or assessed and which become payable by Landlord during the Term,
whether or not now customary or within the contemplation of the parties hereto,
which are based upon, measured by or otherwise calculated with respect to: (i)
the value of Tenant's equipment, furniture, fixtures or other personal property
located in the Premises; (ii) the value of any leasehold improvements,
alterations, or additions made in or to the Premises, regardless of whether
title to such improvements, alterations or additions shall be in the name of
Tenant or Landlord; or (iii) this transaction or any document to which Tenant is
a party creating or transferring an interest or an estate in the Premises.
26.02 TAXES AS RENT. If it shall not be lawful for Tenant so to
reimburse Landlord, the Rent shall be revised to net Landlord the same net Rent
after imposition of any such tax upon Landlord as would have been payable to
Landlord prior to the imposition of any such tax, unless such additional rent
payment is unlawful.
ARTICLE XXVII - LANDLORD'S DEFAULT
27.01 NOTICE. Landlord shall not be deemed to be in default in the
performance of any obligation required of it under this Lease unless and until
it has failed to perform such obligation within thirty (30) days after written
notice by Tenant to Landlord and Landlord specifying when and how Landlord has
failed to perform such obligation; provided, that if the nature of Landlord's
obligation is such that more than thirty (30) days are required for its
performance, Landlord shall not be in default if Landlord commences to cure the
default within such thirty (30) day period and thereafter diligently prosecutes
the same to completion.
27.02 REMEDY FOR BREACH. Notwithstanding anything to the contrary in
this Lease, Tenant's remedy for any breach of this Lease by Landlord shall be
limited to an action for damages or specific performance, and Landlord's
liability to Tenant for damages resulting from Landlord's breach of any
provision or provisions of this Lease shall not exceed the value of Landlord's
interest in the Facility. Landlord, its partners whether general or limited,
shall never be personally liable for any such judgment.
ARTICLE XXVIII - FORCE MAJEURE
Landlord shall be chargeable with, or liable to Tenant for anything or in
any amount for any failure to perform or delay caused by any of the following
(herein "Force Majeure Delays"): fire; earthquake; explosion; flood; hurricane;
the elements; acts of God or the public enemy; actions, restrictions,
limitations or interference of governmental authorities or agents; enforcement
of Applicable Laws; war; invasion; insurrection; rebellion; riots; strikes or
lockouts; inability to perform, control or prevent which is beyond the
reasonable control of Landlord ; and any such failure or delay due to said
causes or any of them shall not be deemed a breach of or default in the
performance of this Lease by Landlord; provided, however, lack of funds shall
not be deemed a Force Majeure Delay.
ARTICLE XXIX - LANDLORD'S MORTGAGEES AND LESSORS
29.01 MODIFICATIONS. If, in connection with Landlord's obtaining or
entering into any financing or ground lease for any portion of the Building or
the Facility, the lender or ground lessor requests modifications to this Lease,
Tenant, within ten (10) days after request therefor, agrees to execute an
amendment to this Lease incorporating such modifications, provided such
modifications are reasonable and do not materially increase the obligations of
Tenant under this Lease or adversely affect the leasehold estate created by this
Lease.
29.02 CURE RIGHTS. In the event of any default on the part of
Landlord, Tenant will give notice by registered or certified mail to any
beneficiary of a deed of trust or mortgage covering the Premises or ground
lessor of Landlord whose address has been furnished to Tenant, and Tenant agrees
to offer such beneficiary, mortgagee or ground lessor a reasonable opportunity
to cure the default (including with respect to any such beneficiary or
mortgagee, time to obtain possession of the Premises, subject to this Lease and
Tenant's rights hereunder, by power of sale or a judicial foreclosure, if such
should prove necessary to effect a cure).
22
ARTICLE XXX - SIGNS
Subject to the terms of this Article XXX, the Tenant named herein shall
have the right to have one (1) corporate name sign on the top of the Building
parapet located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ in a location designated by Landlord
(the "Parapet Sign"); it being agreed that such sign shall be visible from the
San Diego/405 Freeway. Tenant agrees that Landlord shall install and maintain
such sign in accordance with this Article at XXX at Tenant's sole cost and
expense. In addition, subject to the sign program adopted for the Facility from
time to time, the Tenant named herein shall have the right to have one (1)
listing of Tenant's corporate name in all directories of the Building(s) which
the Tenant named herein occupies from time to time during the Term and to have
up to four (4) listings of Tenant's name and listings of Related Corporations on
interior signage in all of the Buildings(s) which the Tenant named herein
occupies, from time to time during the Term. Except as expressly provided
herein, Tenant has no right to install Tenant identification or other signs in
any other location in, on or about the Premises or the Facility and will not
display or erect any other signs, displays or other advertising materials that
are visible from the exterior of the Building or the Facility or from within the
Building or the Facility in any interior or exterior Common Area or Facility
Common Area. The size, design, color and other physical aspects of any and all
sign will be subject to (a) Landlord's written approval prior to installation,
which approval may be withheld in Landlord's sole discretion; (b) the sign
program for the Facility and any covenants, conditions or restrictions
applicable to the Premises and all Applicable Laws; and (c) any applicable
municipal or governmental permits and approvals. Tenant will be responsible for
all costs for installation, maintenance, repair and removal of any Tenant sign.
If Tenant fails to remove Tenant's sign upon termination of this Lease and
repair any damage caused by such removal, or if prior to termination of this
Lease Tenant shall default hereunder beyond the expiration of any applicable
grace or cure period, Landlord may remove Tenant's signage at Tenant's sole
expense. Tenant agrees to reimburse Landlord for all costs incurred by Landlord
to effect any installation, maintenance or removal on Tenant's account, which
amount will be deemed additional rent hereunder and may include, without
limitation, all sums disbursed, incurred or deposited by Landlord including
Landlord's costs, expenses and attorney's fees with interest thereon from the
date of Landlord's demand until paid by Tenant. Any sign rights granted to
Tenant under this Lease are personal to Tenant and may not be assigned,
transferred or otherwise conveyed, whether voluntarily or involuntarily, to any
assignee or subtenant of Tenant or any other person or entity other than the
Tenant named herein without Landlord's prior written consent, which consent
Landlord may withhold in its sole and absolute discretion. Subject to the terms
set forth in this Article XXX, the Parapet Sign may be in Tenant's name or the
name of Preferred Credit Corporation provided and upon the condition that (i)
Tenant shall have changed its name to Preferred Credit Corporation without any
change in the ownership or Control of Tenant or (ii) Tenant shall be doing
business as Preferred Credit Corporation in compliance with all Applicable Laws
without any change in the ownership or Control of Tenant.
ARTICLE XXXI - FINANCIAL STATEMENTS
Prior to the execution of this Lease by Landlord and at any time during the
Term of this Lease upon ten (10) days prior written notice from Landlord, Tenant
agrees to provide Landlord with a current financial statements for Tenant and
any guarantors of Tenant including Guarantors and financial statements for the
two (2) years prior to the current financial statement year for Tenant and any
guarantors of Tenant including Guarantors; it being agreed, however, if at the
time of such notice from Landlord, Tenant shall not then be and shall not have
been in default under this Lease, Landlord may not request financial statements
for the same person or entity more than twice in any twelve (12) month period
during the Term unless an event shall have occurred which could reasonably
affect any such financial statement(s). Such statements are to be prepared in
accordance with generally accepted accounting principles and, if such is the
normal practice of Tenant, audited by an independent certified public
accountant.
ARTICLE XXXII - EXPANSION OF PREMISES
32.01 EXERCISE OF EXPANSION. At any time on or after May 15, 1997,
Landlord may give Tenant a notice (the "Expansion Notice") stating that
effective on the date set forth in such Expansion Notice (the "Expansion Date"),
the Expansion Space (as hereinafter defined) shall be added to and become a part
of the Premises; it being agreed that the Expansion Date shall not occur earlier
than forty-five (45) days following Tenant's receipt of the Expansion Notice. As
used herein, the "Expansion Space" shall mean one-half of the fourth (4th) floor
of the Building (containing approximately 26,340 rentable square feet and
approximately 23,518 useable square feet) at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ as shown on the floor plan annexed hereto as Exhibit H and made a
---------
part hereof, or such other comparable space in the Facility determined by
Landlord as identified in the Expansion Notice.
23
32.02 EFFECT OF EXERCISE. If Landlord shall send Tenant an Expansion
Notice as aforesaid, Landlord and Tenant shall enter into an amendment of this
Lease acceptable to Landlord and Tenant to provide for (i) the inclusion of the
Expansion Space in the Premises; (ii) if and only if the Expansion Date shall
occur on or before the Rent Increase Date, an increase in the Basic Rent (due to
the addition of the Expansion Space to the Premises) payable for the period
commencing on the Expansion Date and terminating on the day preceding the Rent
Increase Date, in an amount equal to the product of (A) $1.45 multiplied by, (B)
-------------
the number of rentable square feet of space deemed to be in the Expansion Space;
(c) whether the Expansion Date occurs prior to or after the Rent Increase Date,
an increase in the Basic Rent payable for the period commencing on the later of
the Expansion Date or the Rent Increase Date and terminating on the Term
Expiration Date,in an amount equal to the product of (A) $1.55 multiplied by (B)
-------------
the number of rentable square feet of space deemed to be in the Expansion Space;
(d) a modification of the definition of Tenant's Share to accurately represent
the percentage that the useable area deemed to be in the Premises, together with
the useable area deemed to be in the Expansion Space, bears to the total useable
area deemed to be in the Facility and (e) subject to the terms of Article XXX, a
modification of Article XXX to provide for one (1) additional listing of a
Related Corporation on the interior signage in all directories of the
Building(s) which the Tenant named herein occupies. In addition, on or prior to
the Expansion Date, Tenant shall furnish Landlord with the Additional Security
Deposit. For purposes of this Article, the rentable square area of any premises
in question shall be determined by multiplying the useable area thereof by a
twelve percent (12%) load factor.
32.03 TENANT IMPROVEMENTS. If Landlord shall send an Expansion Notice
as aforesaid, Landlord shall perform the Preliminary Tenant Improvements therein
subject to and in accordance with the terms of Exhibit E-1, annexed hereto,
-----------
except that Exhibit E-1 shall be modified as follows:
-----------
(a) the amount of the Preliminary Allowance shall be calculated by:
(I) multiplying (A) the number of useable square feet of space deemed
to be in the Expansion Premises by (B) $3.00; and
--
(II) multiplying the product of (I) above by a fraction, the numerator
of which shall be equal to the number of full months remaining in the Lease
Term from the Expansion Date to the Term Expiration Date, and the
denominator of which shall be sixty-three (63). By way of illustration, if
Landlord shall send the Expansion Notice on March 31, 1998 with respect to
25,000 useable square feet of space, the Preliminary Allowance for the
Expansion Space shall be equal to $57,143.00.
$3.00 X 25,000 = $75,000
$75,000 X 48/63 = $57,143
(b) paragraphs 7, 8 and 9 of Exhibit E-1 shall be deleted in their
-----------
entirety;
(c) all references to the Premises shall be deemed to be references to the
Expansion Space; and
(d) In all other respects, the terms and conditions contained in
Exhibit E-1 shall apply to the Expansion Space and shall remain unmodified.
-----------
Provided that Tenant shall not then be, or at any time during the Term have
been, in default under this Lease, Landlord shall also perform the Subsequent
Tenant Improvements in the Expansion Space. The performance of the Subsequent
Improvements shall be performed subject to and in accordance with the terms of
Exhibit E-2 annexed hereto, except that Exhibit E-2 shall be modified as
----------- -----------
follows:
(a) the amount of the Subsequent Allowance will be calculated by:
(I) multiplying (A) the number of useable square feet of space deemed
to be in the Expansion Premises, by (B) $7.00; and
(II) multiplying the product of (I) above by a fraction, the numerator
of which shall be equal to the number of full months remaining in the
Lease Term from the date of commencement of the Subsequent Tenant
Improvements to the Term Expiration Date and the denominator of which
shall be sixty-three (63);
(b) all references to the Premises shall be deemed to be references to the
Expansion Space; and
(c) Paragraph 7 shall be deleted in its entirety and the following shall be
inserted in lieu thereof:
7. CONVERSION OF SUBSEQUENT ALLOWANCE.
----------------------------------
(a) DEFINITIONS. As used in this Paragraph, the following defined terms
-----------
shall have the following meanings ascribed thereto:
24
(i) The term "Rent Conversion Date" shall mean the date
identified by Tenant in the Conversion Notice as the date for the
conversion of the Unapplied Allowance to a credit against the Basic Rent
due under the Lease, which Rent Conversion Date shall be on the first day
of a calendar month, shall occur no earlier than thirty (30) days
following Landlord's receipt of the Conversion Notice and shall in no
event occur prior to the Expansion Date.
(ii) The term "Unapplied Allowance" shall mean the difference
between (A) the Subsequent Allowance, and (B) the aggregate amount which
Landlord determines, in its sole but reasonable judgment, has not been
incurred by or on behalf of Tenant in connection with the performance of
the Subsequent Tenant Improvements attributable to the Expansion Space.
(b) CONVERSION. Provided that (i) the Lease is in full force and
----------
effect and Tenant is not and has not been in default under the Lease, and
(ii) Tenant is in occupancy of the entire Premises and Tenant shall not
have assigned the Lease or sublet all or any part of the Premises, Tenant
shall have the right, exercisable by written notice to Landlord (the
"Conversion Notice"), to convert the Unapplied Allowance to a credit
against the Basic Rent due under the Lease. If Tenant shall exercise the
Conversion Option as aforesaid, on the Rent Conversion Date, the
Unapplied Allowance shall be converted to a credit against the Basic Rent
due under the Lease, which credit will be applied against subsequent
payments of Basic Rent due under the Lease in twenty-four (24) equal
monthly installments provided and upon the condition that on the Rent
Conversion Date and on the date of each subsequent installment of such
credit, Tenant shall not be or have been in default under the Lease.
(c) LANDLORD'S OBLIGATIONS CEASE. Notwithstanding anything to the
----------------------------
contrary contained herein or otherwise, upon Landlord's receipt of the
Conversion Notice, Landlord shall have no further obligation to perform
the Subsequent Improvements or to take any act of any kind required
hereunder in connection therewith, other than as expressly set forth in
Subparagraph 7(b) above.
(d) In all other respects, the terms and conditions contained in Exhibit E-
---------
2 shall apply to the Expansion Space and shall remain unmodified.
-
ARTICLE XXXIII - RIGHT OF FIRST OFFER
33.01 EXERCISE OF RIGHT. If at any time during the Term, Landlord shall
desire to lease any space on the second (2nd) or third (3rd) floors of the
Building at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, consisting of twenty
thousand (20,000) useable square feet or more (the "ROFO Space") to a third
party other than the existing tenant in any such space or to any other person or
entity now having any preexisting rights in such space, Landlord shall first
give Tenant notice ("Landlord's Notice") of the terms and conditions upon which
Landlord is willing to lease such portion of the ROFO Space.
33.02 EFFECT OF EXERCISE. Provided this Lease shall be in full force and
effect and Tenant shall not be in default hereunder, Tenant shall have the
right, exercisable by notice to Landlord given within ten (10) days of the date
of Landlord's Notice, the time of giving of such notice to be of the essence of
this agreement, to lease such portion of the ROFO Space upon the terms and
conditions contained in Landlord's Notice, in which event Landlord and Tenant
shall enter into an amendment of this Lease acceptable to Landlord and Tenant to
provide for (i) the inclusion of such portion of the ROFO Space in the Premises;
(ii) an increase in the Rent by an amount equal to the fair market thereof as
determined by Landlord in its sole but reasonable judgment; and (iii) a
modification of the definition of Tenant's Share to accurately represent the
percentage that the rentable area deemed to be in the Premises, together with
the rentable area deemed to be in the ROFO Space, bears to the total rentable
area deemed to be contained in the Facility. In all other respects, the terms
and conditions contained in this Lease (including escalations and base years)
shall remain unmodified. In the event that Tenant fails to exercise its right
as aforesaid within ten (10) days of the date of Landlord's Notice or, in the
event Tenant shall have exercised its right and Landlord and Tenant shall not
have executed an amendment of this Lease as aforesaid within twenty (20) days
from the date of Landlord's Notice or within ten (10) days of Landlord's
providing the amendment to Tenant for execution, whichever is later, Tenant
shall be deemed to have waived its rights under this Article XXXIII, Landlord
shall have the absolute right to lease such portion or any other portion of the
ROFO Space to any other person or entity and Tenant shall have no further rights
under this Article XXXIII.
33.03 OPTIONS PERSONAL. The right of first offer granted to Tenant under
this Article XXXIII is personal to the named Tenant executing this Lease and may
be exercised only by the named Tenant executing this Lease, while occupying the
entire Premises and without the intent of thereafter assigning this Lease or
subletting the Premises and may not be exercised or be assigned, voluntarily or
involuntarily, by any person or
25
entity other than the named Tenant executing this Lease. The right of first
offer granted to Tenant under this Lease is not assignable separate and apart
from this Lease, nor may the right of first offer be separated from this Lease
in any manner, either by reservation or otherwise.
ARTICLE XXXIV - MISCELLANEOUS
34.01 SUCCESSORS AND ASSIGNS. Subject to the provisions of Article IX,
the terms, covenants and conditions contained herein shall be binding upon and
inure to the benefit of the heirs, successors, executors, administrators and
assigns of the parties hereto.
34.02 ATTORNEYS' FEES. If any action or proceeding is brought to enforce
any term, covenant or condition of this Lease on the part of Landlord or Tenant,
the prevailing party in such litigation shall be entitled to its fees and costs,
including, but not limited to, reasonable attorneys' fees to be fixed by the
court in such action or proceeding, both at trial and on appeal.
34.03 LIGHT AND AIR. No diminution of light, air or view by any
structure which may hereafter be erected (whether or not by Landlord) shall
entitle Tenant to any reduction of Rent, result in any liability of Landlord to
Tenant, or in any other way affect this Lease or Tenant's obligations hereunder.
34.04 PUBLIC TRANSPORTATION. Tenant shall encourage use of public
transportation by personnel of Tenant employed on the Premises and shall
distribute to such employees written materials provided by or through Landlord
explaining the convenience and availability of public transportation facilities
adjacent or proximate to the Facility, Tenant shall in good faith consider
establishing staggered working hours of employees which will not interrupt
Tenant's business.
34.05 HEADINGS. The Article and Section headings herein are for
convenience of reference and shall in no way define, increase, limit or describe
the scope or intent of any provision of this Lease.
34.06 USE OF PRONOUNS. Any pronoun used in place of a noun shall
indicate and include the masculine or feminine, the singular or plural number,
individuals, firms or corporations, and their and each of their respective
successors, executors, administrators, assigns, according to the context hereof.
34.07 TIME OF THE ESSENCE. Time is of the essence of this Lease.
34.08 GOVERNING LAW. This Lease shall in all respects to the maximum
extent legally permissible be governed by the laws of the State of California.
34.09 BROKERS. The parties acknowledge that the only broker who
negotiated this Lease is stated in the Basic Lease Information. Landlord agrees
to pay any commission due to the broker stated in the Basic Lease Information
pursuant to a separate written agreement between Landlord and such broker. Each
party represents and warrants to the other, that, to its knowledge, no other
broker, agent or finder (a) negotiated or was instrumental in negotiating or
consummating this Lease on its behalf, and (b) is or might be entitled to a
commission or compensation in connection with this Lease. Landlord and Tenant
each agree to promptly indemnify, protect, defend and hold harmless the other
from and against any and all claims, damages, judgments, suits, causes of
action, losses, liabilities, penalties, fines, expenses and costs (including
attorneys' fees and court costs) resulting from any breach by the indemnifying
party of the foregoing representation, including, without limitation, any claims
that may be asserted by any broker, agent or finder undisclosed by the
indemnifying party. The foregoing mutual indemnity shall survive the expiration
or earlier termination of this Lease.
34.10 MODIFICATIONS. This Lease may not be modified except by a written
instrument by the parties hereto.
34.11 UNENFORCEABLE PROVISIONS. If for any reason whatsoever any of the
provisions hereof shall be unenforceable or ineffective, all of the other
provisions shall be and remain in full force and effect.
34.12 COVENANTS AND CONDITIONS. All provisions, whether covenants or
conditions, on the part of Tenant and Landlord herein shall be deemed and
construed to be both covenants and conditions as though the words specifically
expressing or imparting covenants and conditions were used in each separate
provision hereof.
34.13 INCORPORATION. Exhibits ▇-▇, ▇-▇, ▇-▇, ▇, ▇, ▇ -▇, ▇-▇, F, G, H
------------ ---- ---- -- -- ----- ---- -- -- -
and I and any other Exhibits, Addenda and Riders attached to this Lease are
-
hereby incorporated by this reference and made a part of this Lease.
34.14 RECORDATION OF MEMORANDUM; QUITCLAIM AND RELEASE AGREEMENT.
Landlord and Tenant agree that in no event and under no circumstances shall this
Lease be recorded. A short-form memorandum may be recorded at Landlord's or
Tenant's election. Tenant represents, warrants and covenants to Landlord that
upon the expiration or termination of this Lease, Tenant at its sole cost and
expense shall at Landlord's request, deliver
26
to Landlord a fully executed quitclaim and release agreement in recordable form
wherein Tenant quitclaims, conveys, assigns and releases to Landlord any and all
of Tenant's interest in this Lease and the Premises and the Facility.
34.15 ADDITIONAL INSTRUMENTS. Upon the request of either party at any
time, the other party shall execute and file any additional instruments and take
any actions as may be reasonably necessary or desirable to carry out the intent
and to fulfill the provisions of this Lease.
34.16 ENTIRE LEASE BETWEEN PARTIES. This Lease and all exhibits and
attachments to this Lease and any written modifications or amendments to all of
the foregoing entered into by the parties after the date of this Lease,
constitutes the entire lease between the parties with respect to the subject
matter of this Lease and supersedes all prior and contemporaneous leases and
understandings, whether oral or written. Each party to this Lease acknowledges
that no representations, inducements, promises or leases, orally or otherwise,
have been made by any party, or anyone acting on behalf of any party, which are
not embodied in this Lease and that no other lease, statement or promise not
contained in this Lease shall be valid or binding. The parties intend by this
Lease to establish the relationship of landlord and tenant only, and do not
intend to create a partnership, joint venture, joint enterprise, or any business
relationship other than that of landlord and tenant.
34.17 NONDISCLOSURE OF LEASE TERMS. Tenant acknowledges and agrees that
the terms of this Lease are confidential and constitute proprietary information
of Landlord. Disclosure of the terms could adversely affect the ability of
Landlord to negotiate other leases and impair Landlord's relationship with other
tenants. Accordingly, Tenant agrees that it, and its partners, officers,
directors, employees and attorneys, shall not intentionally and voluntarily
disclose the terms and conditions of this Lease to any newspaper or other
publication or any other tenant or apparent prospective tenant of the Building
or other portion of the Facility, or real estate agent, either directly or
indirectly, without the prior written consent of Landlord, provided, however,
that Tenant may disclose the terms to prospective subtenants or assignees under
this Lease.
34.18 JOINT AND SEVERAL OBLIGATIONS. If more than one person executes
this Lease as Tenant, their execution of this Lease will constitute their
covenant and agreement that (i) each of them is jointly and severally liable for
the keeping, observing and performing of all of the terms, covenants,
conditions, provisions and agreements of this Lease to be kept, observed and
performed by Tenant, and (ii) the term "Tenant" as used in this Lease means and
includes each of them jointly and severally. The act of or notice from, or
notice or refund to, or the signature of any one or more of them, with respect
to the tenancy of this Lease, including, but not limited to, any renewal,
extension, expiration, termination or modification of this Lease, will be
binding upon each and all of the persons executing this Lease as Tenant with the
same force and effect as if each and all of them had so acted or so given or
received such notice or refund or so signed.
34.19 TENANT AS CORPORATION OR PARTNERSHIP. If Tenant executes this
Lease as a corporation or partnership, then Tenant and the persons executing
this Lease on behalf of Tenant represent and warrant that such entity is duly
qualified and in good standing to do business in California and that the
individuals executing this Lease on Tenant's behalf are duly authorized to
execute and deliver this Lease on its behalf, and in the case of a corporation,
in accordance with a duly adopted resolution of the board of directors of
Tenant, a copy of which is to be delivered to Landlord on execution hereof, if
requested by Landlord, and in accordance with the by-laws of Tenant, and, in the
case of a partnership, in accordance with the partnership agreement and the most
current amendments thereto, if any, copies of which are to be delivered to
Landlord on execution hereof, if requested by Landlord, and that this Lease is
binding upon Tenant in accordance with its terms. In addition, if Tenant is a
partnership or if Tenant's interest in this Lease shall be assigned to a
partnership, (i) the liability of each of the parties comprising the partnership
Tenant shall be joint and several, (ii) each of the parties comprising the
partnership Tenant hereby consents in advance to, and agrees to be bound by, any
written instrument which may hereafter be executed, changing, modifying or
discharging this Lease, in whole or in part, or surrendering all or any part of
the Premises to Landlord and by any notices, demands, requests or other
communications which may hereafter be given by a partnership Tenant, (iii) any
bills, statements, notices, demands, requests or other communications given or
rendered to a partnership Tenant and to all such parties shall be binding upon a
partnership Tenant and all such parties, (iv) if a partnership Tenant shall
admit new partners, all of such new partners shall, by their admission to a
partnership Tenant shall be deemed to have assumed performance of all of the
terms, covenants and conditions of this Lease on Tenant's part to be observed
and performed, and (v) a partnership Tenant shall give prompt notice to Landlord
of the admission of any such new partners, and upon demand of Landlord, shall
cause each such new partner to execute and deliver to Landlord an agreement in
form satisfactory to Landlord, wherein each such new partner shall assume
performance of all of the terms and conditions of this Lease on Tenant's part to
be observed and performed (but neither Landlord's failure to request any such
agreement nor the failure of any such new partner to execute or deliver any such
agreement shall vitiate the provisions of subdivision (iv) of this Section
34.19).
34.20 EXAMINATION OF LEASE. Submission of this instrument by Landlord to
Tenant for examination or signature by Tenant does not constitute a reservation
of or option for lease, and it is not effective as a lease or otherwise until
execution by and delivery to both Landlord and Tenant.
34.21 LANDLORD'S AUTHORITY. If Landlord executes this Lease as a
corporation or partnership, then Landlord and the persons executing this Lease
on behalf of Landlord represent and warrant that such entity has full power and
authority to execute this Lease.
27
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the day
and year first above written.
LANDLORD:
▇▇▇▇ ▇▇▇▇▇▇▇▇ OPERATING PARTNERSHIP,
a Maryland general partnership
By: Winthrop California Investors Limited Partnership,
a Delaware limited partnership,
its General Partner
By: Three Winthrop Properties, Inc.,
a Massachusetts corporation,
its General Partner
By:________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its Vice President
TENANT:
T.A.R. PREFERRED MORTGAGE CORPORATION
a California corporation
By:_______________________________________
Print Name:____________________________
Print Title:___________________________
28
EXHIBIT A
---------
LEGAL DESCRIPTION OF LAND COMPRISING THE FACILITY
-------------------------------------------------
[To Be Supplied]
EXHIBIT A-1
-----------
SITE PLAN OF THE FACILITY AND THE PROJECT
-----------------------------------------
EXHIBIT B-1
-----------
FLOOR PLAN OF THE PREMISES AT ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------------
[To Be Supplied]
EXHIBIT B-2
-----------
FLOOR PLAN OF THE PREMISES AT ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------------
[To Be Supplied]
EXHIBIT C
---------
DEFINITIONS
-----------
The following terms shall be defined as set forth below. A term is identified
by initial capital letters throughout all provisions of this Lease, including,
without limitation, the Recitals and the Exhibits.
"Anniversary Date" means the anniversary of the Term Commencement Date.
----------------
"Applicable Laws" means any law, statute, directive, regulation, rule, order
---------------
or ordinance of any governmental or quasi-public entity or authority and any
covenants, conditions and restrictions, reciprocal easement agreements,
operating agreements, ground leases or master leases which are applicable to the
Premises or the Facility or the use or occupancy thereof, and which are now in
effect or are hereafter promulgated.
"Article" means an article of this Lease.
-------
"Bankruptcy Code" means 11 U.S.C. (S)(S) 101 et seq. or such similar laws or
--------------- -- ---
amendments thereto which may be enacted from time to time.
"Base Year" means the twelve (12) month period set forth in the Basic Lease
---------
Information Section of this Lease.
"Base Year Operating Expenses" means the Operating Expenses incurred for the
----------------------------
Base Year.
"Basic Rent" means the portion of the Rent payable as determined pursuant to
----------
Section 4.01 and net of Tenant's Operating Expenses to be paid by Tenant
pursuant to Article XXV.
"Building" means the complex of buildings located at 3333-3355 ▇▇▇▇▇▇▇▇▇
--------
Drive, Irvine, California.
"Control" means ownership of not less than fifty percent (50%) of all of the
-------
voting stock of any corporation in question or not less than fifty percent (50%)
of all of the legal and equitable interests in any other business entity in
question.
"Common Area" means the total of all areas now or at any time hereafter which,
-----------
based on Landlord's reasonable discretion, are or become within or part of the
Project but outside of the Facility which are made available for general non-
exclusive use, convenience and benefit of Landlord, Tenant and all other owners,
landlords, tenants and permitted occupants of the Project as now or hereafter
improved and configured and their respective employees and invitees and which
are neither occupied by buildings nor devoted to the specific use of a
particular tenant, including, without limitation:
(i) all sidewalks, walkways, pedestrian tunnels, sky walks, plazas,
bridges, driveway entrances and exits, curbs, service drives, loading areas,
alleys, transportation facilities, if any, outside lighting fixtures,
shrubbery, grass, planters and other landscaped areas, common storm drain and
sewer systems; and
(ii) all Parking Facilities.
"Cosmetic Alterations" means Alterations which (1) are nonstructural and which
--------------------
do not affect the Facility's mechanical, electrical, plumbing, life-safety or
other Building systems or the structural integrity of the Facility, (2) do not
affect any part of the Facility other than the Premises, do not affect any
service required to be furnished by Landlord to Tenant or to any other tenant or
occupant of the Facility and do not reduce the value or utility of the Facility
or any part thereof, (3) are of a purely cosmetic or decorative nature (such as
painting or installation of wall covering or carpeting), and (4) have an
estimated cost for all labor and materials in connection with such Alterations
in any one instance (or in a series of instances effectuating a single
alteration plan) of less than Five Thousand ($5,000.00) Dollars.
"CWDLP" means ▇▇▇▇ ▇▇▇▇▇▇▇▇ Development Limited Partnership, a Maryland
-----
Limited Partnership or any of its successors or assigns.
"Development Parcel" means that certain parcel or parcels of land contiguous
------------------
to and which surround the Facility as shown on Exhibit A-1 on which is presently
-----------
situated all Parking Facilities, the California Pizza Kitchen restaurant and
related improvements, Common Area and certain improvements presently under
construction.
"Environmental Law" means all federal, state and local statutes, ordinances,
-----------------
regulations and rules presently in force or hereafter enacted relating to
environmental quality, contamination and clean up of Hazardous Materials
including, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. (S)6091 et seq., as amended by
-- ---
the Superfund Amendments and Reauthorization Act of 1986, the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. (S)6091 et seq., as amended by
-- ---
the Hazardous and Solid Waste Amendments of 1984 and state super lien and
environmental clean-up statutes and all rules and regulations presently or
hereafter promulgated under said statutes as amended.
"Event of Default" means any of the events specified in Section 19.01 after
----------------
the expiration of the applicable cure period set forth therein, if any.
"Facility" means the complex of buildings and improvements presently located
--------
at 3333 to ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ containing 1,499,028
useable square feet of area as well as land underlying such buildings and
improvements and all overlying space above such land, buildings and
improvements, as the same may be hereafter expanded, altered, improved,
contracted or otherwise modified.
"Facility Common Areas" means the total of all areas now or at any time
---------------------
hereafter which, based on Landlord's reasonable discretion, are or become within
or part of the Facility and are made available for the general non-exclusive
use, convenience and benefit of Landlord, Tenant and all other tenants of the
Facility or other tenants in buildings to be constructed within the Facility and
their respective employees and invitees, including, without limitation:
(i) all lobbies, entrances, stairs, structural components, exterior
walls of the Facility, roofs, elevators, escalators, hallways, passageways and
other interior public portions of the Facility which are not specifically
leased to Tenant or any other tenant of the Facility;
(ii) all exterior walkways, landscaped areas, open space areas, plazas,
driveways and transportation facilities on, in or above the Facility; and
(iii) all pedestrian linkages, whether covered or not, between any
portion of the Facility, whether existing or hereafter constructed, excluding
therefrom any portions of such pedestrian linkages which are specifically
identified as tenant space.
"Governmental Entity" means any subdivision, authority, body, agency,
-------------------
instrumentality or other entity created and/or controlled pursuant to the law of
the State of California or any city, town or village of such state or of federal
government.
"Hazardous Materials" means all hazardous and toxic substances, wastes and
-------------------
materials, any pollutant or contaminant, including, without limitation, PCB's,
asbestos, asbestos-containing material, petroleum products and raw materials
that are included under or regulated by any Environmental Law or that pose a
health, safety or environmental hazard.
"Interest Rate" means the greater of ten percent (10%) per annum or four
-------------
percent (4%) in excess of the prime lending or reference rate of ▇▇▇▇▇ Fargo
Bank N.A. or any successor bank in effect on the twenty-fifth (25th) day of the
calendar month immediately prior to the event giving rise to the Interest Rate
imposition; provided, however, the Interest Rate will in no event exceed the
maximum interest rate permitted under Applicable Laws.
"Lease" means this instrument.
-----
"Lease Year" means one (1) full year from the Term Commencement Date to the
----------
first Anniversary Date or between two (2) consecutive Anniversary Dates.
"Non-Structural Alterations" means Alterations which (1) are nonstructural and
--------------------------
which do not affect the Facility's mechanical, electrical, plumbing, life-safety
or other Building systems or the structural integrity of the Facility, (2) do
not affect any part of the Facility other than the Premises, do not affect any
service required to be furnished by Landlord to Tenant or to any other tenant or
occupant of the Facility and do not reduce the value or utility of the Facility
or any part thereof, and (3) are not Cosmetic Alterations.
"Operating Expenses" means all expenses and costs (and taxes, if any,
------------------
thereon) of every kind and nature determined by Landlord in it sole judgment
acting in good faith to the extent they are in accordance with sound management
principles respecting the operation of large first class office complexes in
the Newport Beach/Irvine/South Coast Plaza area which principles shall be
consistently applied (with accruals appropriate to Landlord's business), which
Landlord shall pay or become obligated to pay because of, or in connection with,
the ownership, management, maintenance, repair, replacement, restoration or
operation of (1) the Facility or the Building or the sidewalks and areas
adjacent thereto (but not the cost of development of the Facility), (2) the
Common Area, the Facility Common Area and all areas which become part of the
Common Area or the Facility Common Area, (3) the Parking Facilities, (4) such
additional facilities to be constructed as part of the Common Area or the
Facility Common Area in subsequent years as may be determined to be desirable
for the Facility and (5) the personal property of Landlord used in the operation
of the Facility, including, but not limited to the following:
(i) Property Taxes;
(ii) Any and all assessments and payments imposed with respect to the
Facility or the Premises pursuant to any Applicable Laws;
Exhibit C - Page 2
(iii) The costs of all utilities and services provided under the Lease,
including water and sewer charges and the costs of electricity, heating,
ventilation and air conditioning;
(iv) All maintenance, janitorial and other service costs for the
Premises and for the Facility and the equipment therein, including, without
limitation, security services, alarm services, window cleaning, elevator and
escalator maintenance, and rubbish removal;
(v) All maintenance, repair, restoration, replacement and operation
costs of the Common Area, the Facility Common Area and the Parking Facilities,
including, without limitation, with respect to signage (other than tenant
signage), lighting, landscaping and gardening, parking lot resurfacing,
repairing and restriping;
(vi) Wages, salaries and related expenses and benefits of all
personnel whether Landlord's employees or employees of Landlord's agents, or
other third parties' independent contractors, whether on-site or off-site,
engaged in the operation, management, maintenance, repair, engineering and
security of the Facility, and the rental value of a management office in the
Facility; provided, however, that Operating Expenses shall not include wages,
salaries or commissions paid for any real estate broker, salesperson or agent
for leasing areas within the Facility;
(vii) the cost of all supplies, tools, materials and equipment, whether
leased or owned, used in the operation, security, management, repair and
maintenance of the Facility;
(viii) A management fee paid to the manager of the Facility equal to
five percent (5%) of gross rent derived from the Facility;
(ix) Legal expenses, accounting costs, including costs of audits by
certified public accountants and other professional fees and expenses in
connection with the operation, ownership, management, maintenance, repair,
replacement or restoration of the Facility or the Building;
(x) All insurance premiums and costs, including but not limited to,
the premiums and cost of fire, casualty and liability coverage and rental
abatement or comprehensive rental interruption insurance and earthquake
insurance (if Landlord elects to provide such coverage) applicable to the
Facility and Landlord's personal property used in connection therewith,
however, excluding therefrom any personal property of Landlord used by
Landlord exclusively in connection with the use and occupation of portions of
the Facility other than the Premises or the Common Areas or the Parking
Facilities;
(xi) Repairs, replacements, service and general maintenance (excluding
repairs and general maintenance paid by proceeds of insurance or by Tenant or
other third parties, and alterations attributable solely to tenants of the
Facility other than Tenant) of the Facility, including, without limitation
all systems and equipment, including but not limited to, elevators, plumbing,
heating, air conditioning, ventilating, lighting, electrical, security, and
fire alarms, fire pumps, fire extinguishers and hose cabinets, mail chutes and
those related to guard service, painting, window cleaning, service area,
mechanical rooms and Facility exteriors;
(xii) All supplies, materials, rental of equipment, security,
management, utilities, repairs, replacements and maintenance costs and all
other costs and expenses attributable to, related to or used in connection
with the Common Area, the Facility Common Area and the Parking Facilities;
(xiii) All of Landlord's costs and expenses of contesting by legal
proceedings any matter concerning the operation or management of the Facility,
or the amount or validity of any Property Taxes levied against all or any part
of the Facility;
(xv) The costs of personnel, utilities, insurance, materials,
supplies, payroll and equipment related to or used in connection with services
provided or available to be provided within the Facility for the use and
benefit of all tenants, including Tenant, in the Facility, to the extent not
recovered from charges made for the cost of such services;
(xiv) The cost of capital improvements, modifications or improvements
made to the Facility, amortized on a straight line basis over the useful life
thereof as determined in accordance with sound accounting principles, together
with interest on the amortized costs of each expenditure;
(xvi) Energy allocation or use charges or surcharges or developmental
or environmental charges imposed in connection with the operation or
management of the Facility;
(xvii) Costs incurred in connection with the implementation and
operation of any transportation management program or similar program;
(xviii) Cost of supplying and cleaning employees' uniforms and work
clothes;
(xix) Reasonable dues and expenses for trade and industry associations;
Exhibit C - Page 3
(xx) Reasonable administrative costs, such as (but not limited to)
postage, stationery, photocopy expenses and other management office supplies;
(xxi) Imputed cost equal to the loss of rent by Landlord for space used
for on-site management at an imputed cost which is equal to the rental rate
then charged by Landlord for comparable space in the Facility;
(xxii) Costs of providing pest control for the Facility;
(xxiii) Cost of casualty, liability and other insurance;
(xxiv) Any and all occupancy, gross receipts or rental taxes paid by
Landlord in connection with the Facility, but not income or any other tax
imposed or measured by Landlord's income or profits (unless such tax is in
lieu of real estate taxes or sales taxes);
Notwithstanding anything to the contrary herein contained, Operating
Expenses shall not include:
(aa) depreciation of the Building;
(bb) the cost of providing tenant improvements to Tenant or any other
tenant or the cost of renovating space for existing or new tenants;
(cc) principal, interest or debt required to be paid on any mortgage or
deed of trust recorded with respect to the Facility and/or the Premises;
(dd) the cost of special services, goods or materials provided to any
tenant;
(ee) advertising costs incurred in renting individual space in the
Facility;
(ff) any compensation paid to clerks, attendants or other persons in
commercial concessions operated by Landlord;
(gg) material damages incurred due to the violation by any tenant of the
terms and conditions of any lease of space in the Facility;
(hh) any Operating Expenses solely resulting from or related to any new
building constructed on the Facility, except as otherwise expressly provided;
(ii) The cost to Landlord of repairs made, or other work done, by Landlord
as a result of fire, windstorm or other insurable casualty or by the exercise of
eminent domain, provided, however, that this exclusion is limited to the amount
of the insurance proceeds or condemnation award actually received by Landlord
for such repairs or other work;
(jj) specific costs incurred for the account of and separately billed to
specific tenants and other specific services or Property Taxes which could have
been billed to tenants under their leases;
(kk) costs and expenses incurred as a result of any lease negotiations
with any prospective tenant of the Facility including, without limitation,
leasing or brokerage commissions, attorney's fees and space planning costs;
(ll) tenant allowances and other costs of installation of tenant
improvements and decorations incurred to prepare a space for any new tenant;
(mm) costs of alterations, additions and improvements made by Landlord to
the Building to comply with ADA as presently enacted;
(nn) costs of alterations, additions and improvements made by Landlord to
the Building to comply with any existing violation of any Applicable Law with
respect to the Hazardous Materials;
(oo) except as otherwise permitted pursuant to the terms hereof, costs of
Landlord's general corporate overhead for employees who do not perform work with
respect to the Facility, the Building or any part thereof; and
(pp) costs arising from repairs necessitated by, or resulting solely and
directly from, the gross negligence or intentional acts of Landlord.
Operating Expenses with respect to new or modified Common Area shall be
allocated to the Facility and the Premises on a reasonable basis. In
determining the amount of Operating Expenses for any calendar year, if less than
ninety-five (95%) of the rentable area in the Facility shall have been occupied
by tenants at any time during such calendar year, Operating Expenses shall be
determined for such calendar year to be an amount equal to the
Exhibit C - Page 4
like expenses which would normally be expected to be incurred had such occupancy
been ninety-five (95%) throughout such calendar year.
If any capital improvement is made during any lease year in compliance with
requirements of any federal, state or local law or environmental regulation,
whether or not such law or regulation is valid or mandatory, then the reasonable
annual amortization, with interest of the cost of such improvements shall be
deemed an Operating Expense in each of the lease years during which such
amortization occurs.
"Parking Facilities" means all surface, aboveground and underground parking
------------------
facilities (including, without limitation, accessways, parking spaces, parking
structures, pedestrian crossings or paths or ramps) now or hereafter constructed
and designated by Landlord for use by tenants of or within the Project.
"Permitted Use" means use as general offices and related uses and for no other
-------------
purpose.
"Premises" means that certain space consisting of that approximate number of
--------
rentable square feet as set forth in the Basic Lease Information located on the
floor(s) designated on the Basic Lease Information and as outlined on the floor
plan attached hereto as Exhibit B incorporated herein by reference. The
---------
Premises shall include the interior surface of all walls, but shall not include
the exterior walls of the Facility, or any structural components or any Facility
Common Area or Common Area. All references to the Premises in this Lease shall
mean the Premises under this Lease in any given Lease Year.
"Project" means the land and improvements, and the overlying space, that
-------
presently exist or as same may be expanded, developed or altered from time to
time, designated on Exhibit A-1 attached hereto and incorporated herein by
-----------
reference, presently known as Park Place, including, without limitation, the
Facility, the retail center and related improvements, all improvements presently
under construction within the area depicted on Exhibit A-1, the Common Area and
-----------
all Parking Facilities.
"Property Taxes" means all real and personal property taxes and assessments,
--------------
general or special, and all other taxes, charges, levies and license and permit
fees of any kind or nature whatsoever, foreseen or unforeseen, general or
special, ordinary or extraordinary, which are now or any time during the term of
this Lease levied, assessed, imposed upon, confirmed or become due and payable
out of or with respect to the Facility and the improvements, fixtures, equipment
and other items of personal property of Landlord therein which are used in the
operation and maintenance of the Facility; any taxes which become payable by
Landlord, whether or not now customary or within the contemplation of Landlord
or Tenant, which are levied in addition to or in lieu of such real or personal
property taxes or assessments including, without limitation, any occupancy,
gross receipts or rental tax (i) allocable to or measured by Rent or other
amounts payable to Landlord hereunder, (ii) with respect to the receipt of such
Rents or amounts by Landlord, (iii) with respect to any activity or right of
Tenant in the leasing, possession, occupancy, use, operation, management,
repair, maintenance, alteration, or improvement of the Premises or (iv) upon
this transaction or any document to which Tenant is a party creating or
transferring an interest or an estate in the Premises; and any interest,
penalties or delinquency charges thereon which attach for any reason other than
late payment or non-payment thereof by Landlord, unless such late payment or
non-payment by Landlord is in connection with a late payment or non-payment by
Tenant. Property taxes shall include transit impact development fees, housing
impact development fees (fees for services such as fire protection, street,
sidewalk and road maintenance, refuse removal and other governmental services),
and other fees or taxes payable by Landlord, in connection with the Facility
that are levied with respect to the Facility and which are payable with monthly
Rent as provided in subparagraph (b) below.
(a) Property Taxes shall not include: (i) any taxes or assessments
---
against the personal property of Tenant or any other tenant of the Facility
which taxes and assessments are separately billed to Tenant or such other tenant
by the tax collecting authority; or (ii) any income tax, franchise tax or
transfer tax (exclusive of any transfer tax imposed on this Lease) for which
Landlord may be or become personally liable.
(b) In addition to all monthly Rent and other charges to be paid by
Tenant under this Lease, Tenant shall reimburse Landlord upon demand for
Tenant's Share of any and all transit impact development fees, housing impact
development fees and other fees or taxes payable by Landlord, whether or not now
customary or within the contemplation of the parties hereto, that are levied
with respect to the Facility that are not due or attributable to the development
of the Facility and related to the cost of providing governmental or public
facilities or services. Property Taxes shall not include transit impact
development fees or housing impact development fee which (i) are imposed solely
on Landlord as a result of development of the Facility and (ii) are not imposed
generally upon other landowners within the taxing agency's jurisdiction.
(c) There shall be deducted from Property Taxes the net amount of any
refunds actually received by Landlord, after reasonable expenses. To the extent
reasonably practicable, all such refunds to be applied against said Property
Taxes for the same calendar year to which the Property Taxes apply.
(d) The amount of special taxes or special assessments to be Included as
Property Taxes shall be limited to the amount of the installments of special
taxes or special assessments required to be paid during the calendar year in
respect to which these special taxes or special assessments are to be
determined; however, Landlord shall elect the longest period of time allowed by
the authority imposing the tax or assessment in which to pay installments of
special taxes or special assessments.
Exhibit C - Page 5
(e) Property Taxes shall include expenses incurred by Landlord in
attempting to protest, reduce or minimize Property Taxes for the year in which
such expenses are incurred. If for any Lease Year subsequent to the Base Year,
Property Taxes are reduced, then commencing in the Lease Year in which such
decrease occurs and continuing for all subsequent Lease Years, Base Year
Operating Expenses shall be deemed reduced by the amount of such decrease to
Property Taxes.
"REA" means that certain Construction, Operation and Reciprocal Easement
---
Agreement for the Facility recorded July 30, 1985 as Instrument No. 85-279768 in
the Official Records of Orange County, California.
"Related Corporation" means corporations or other business entities (but not
-------------------
including Governmental Entities) which Control, are Controlled by or are under
common Control with Tenant.
"Rent" means all rent and other payments to Landlord under this Lease,
----
including, without limitation, (i) Basic Rent as set forth in Section 4.01, and
(ii) such other charges and payments as are designed as Rent under this Lease.
"Scheduled Term Commencement Date" means the date set forth as the Scheduled
--------------------------------
Term Commencement Date in the Basic Lease Information of this Lease.
"Scheduled Term Expiration Date" means the date set forth as the Scheduled
------------------------------
Term Expiration Date in the Basic Lease Information of this Lease.
"Section" means a section of this Lease.
-------
"Tenant" means the tenant under this Lease as set forth in the Basic Lease
------
Information, or its permitted successors and assigns.
"Tenant Improvements" means the improvements to the Premises to be made by
-------------------
Landlord as provided in the Tenant Improvement Agreements attached hereto as
Exhibit E-1 and Exhibit E-2 and incorporated herein by reference.
----------- -----------
"Tenant's Operating Expenses" means the difference between Tenant's Share of
---------------------------
Operating Expenses and Tenant's Share of Base Year Operating Expenses to be
determined and paid as provided in Article XXV.
"Tenant's Share" means the ratio (expressed as percentage) of the useable
--------------
floor area deemed to be in the Premises to the useable floor area deemed to be
in the Facility. In the event the useable square footage of the Premises or the
Facility is changed, Tenant's Share shall be appropriately adjusted effective
upon such change.
"Term" means the term of this Lease.
----
"Term Commencement Date" means the actual date on which the Term of this Lease
----------------------
commences.
"Term Expiration Date" means the actual date on which the term of this Lease
--------------------
expires.
Exhibit C - Page 6
EXHIBIT D
---------
COMMENCEMENT MEMORANDUM
-----------------------
To:__________________ Date:___________________
__________________
Re: Lease dated__________19__(the "Lease"), between ▇▇▇▇ ▇▇▇▇▇▇▇▇ Operating
Partnership, Landlord, and ___________, Tenant, concerning Suite ___ located at
_________________________ (the "Premises").
To Whom It May Concern:
In accordance with the subject Lease, we wish to advise and/or confirm as
follows:
1. That the Premises have been accepted by the Tenant as being substantially
complete in accordance with the subject Lease and that there is no deficiency in
construction.
2. That the Tenant has possession of the subject Premises and acknowledges
that under the provisions of the Lease the Term Commencement Date is
___________________, and the Term Expiration Date is _________________________.
3. That in accordance with the Lease, rent commenced to accrue on___________.
4. If the Term Commencement Date of the Lease is other than the first day of
the month, the first billing will contain a pro rata adjustment. Each billing
thereafter will be for the full amount of the monthly installment as provided
for in the Lease.
5. Rent is due and payable in advance on the first day of each and every
month during the Term of the Lease. Your rent checks should be made payable to
___________________ at _________________________.
6. The number of square feet deemed to be in the Premises is _______ useable
and __________ rentable square feet.
7. The number of square feet within the Facility is deemed to be
approximately ______________ useable square feet.
8. Tenant's Share, as adjusted based upon the number of rentable square feet
deemed to be within the Premises, is ___%.
LANDLORD:
▇▇▇▇ ▇▇▇▇▇▇▇▇ OPERATING PARTNERSHIP,
a Maryland general partnership
By: Winthrop California Investors Limited Partnership,
a Delaware limited partnership,
Its: General Partner
By: Three Winthrop Properties Inc.,
a Massachusetts corporation,
Its: General Partner
By:___________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
TENANT:
T.A.R. PREFERRED MORTGAGE CORPORATION,
a California corporation
By:__________________________________________
Print Name:_________________________________
Title:______________________________________
EXHIBIT E-1
-----------
PRELIMINARY TENANT IMPROVEMENT AGREEMENT
----------------------------------------
THIS PRELIMINARY TENANT IMPROVEMENT AGREEMENT ("Preliminary Tenant Improvement
Agreement") is entered into as of the ____ day, January, 1997 by and between
▇▇▇▇ ▇▇▇▇▇▇▇▇ Operating Partnership, a Maryland general partnership
("Landlord"), and T.A.R. Preferred Mortgage Corporation ("Tenant"), a
California corporation.
R E C I T A L S :
A. Concurrently with the execution of this Preliminary Tenant Improvement
Agreement, Landlord and Tenant have entered into a lease (the "Lease") covering
certain premises (the "Premises") more particularly described in Exhibit B-1
------------
and Exhibit B-2 attached to the Lease. All terms not defined herein have the
-----------
same meaning as set forth in the Lease. To the extent applicable, the
provisions of the Lease are incorporated herein by this reference.
B. In order to induce Tenant to enter into the Lease and in consideration of
the mutual covenants hereinafter contained, Landlord and Tenant agree as
follows:
1. PRELIMINARY TENANT IMPROVEMENTS. As used in the Lease and this
-------------------------------
Preliminary Tenant Improvement Agreement, the term "Preliminary Tenant
Improvements" or "Preliminary Tenant Improvement Work" means collectively (a)
applying one (1) coat of Standard (as hereinafter defined) paint to the walls of
the Premises in a Standard color selected by Tenant and (b) furnishing and
installing Standard wall-to-wall carpeting in the Premises.
2. CONSTRUCTION REPRESENTATIVES. Landlord hereby appoints the following
----------------------------
person(s) as Landlord's representative ("Landlord's Representative") to act for
Landlord in all matters covered by this Preliminary Tenant Improvement
Agreement: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ . Tenant hereby appoints the following
------------------------
person(s) as Tenant's representative ("Tenant's Representative") to act for
Tenant in all matters covered by this Preliminary Tenant Improvement Agreement:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ . All communications with respect to the matters covered by
--------------------
this Preliminary Tenant Improvement Agreement are to made to Landlord's
Representative or Tenant's Representative, as the case may be, in writing in
compliance with the notice provisions of the Lease. Either party may change its
representative under this Preliminary Tenant Improvement Agreement at any time
by written notice to the other party in compliance with the notice provisions of
the Lease.
3. PRELIMINARY TENANT IMPROVEMENTS.
-------------------------------
(a) SELECTION OF COLORS; STYLES. Landlord shall submit to Tenant for
---------------------------
Tenant's review and approval, Standard paint and carpeting options for the
Premises. Tenant shall promptly select the Standard paint and carpeting to be
installed in the Premises. Once selected by Tenant, the Standard selections
may not be changed without the prior written approval of both Landlord and
Tenant, and then only after Tenant pays any excess costs resulting from such
changes. Tenant hereby acknowledges that any such changes will be subject to
the terms of Paragraph 8 below.
(b) PRELIMINARY WORK COST ESTIMATE AND STATEMENT. Prior to the
--------------------------------------------
commencement of construction of any of the Preliminary Tenant Improvements,
Landlord will submit to Tenant a written estimate of the cost to complete the
Preliminary Tenant Improvement Work (the "Preliminary Work Cost Estimate").
Upon Tenant's approval of the Preliminary Work Cost Estimate (such approved
Work Cost Estimate to be hereinafter known as the "Preliminary Work Cost
Statement"), Landlord will have the right to purchase materials and to
commence the construction of the items included in the Preliminary Work Cost
Statement pursuant to Paragraph 5 hereof. If the total costs reflected in the
Preliminary Work Cost Statement exceed the Preliminary Allowance described in
Paragraph 4 below, Tenant agrees to pay such excess, as additional rent,
within five (5) business days after Tenant's approval of the Preliminary Work
Cost Estimate. Throughout the course of construction, any differences between
the estimated Preliminary Work Cost in the Preliminary Work Cost Statement and
the actual Preliminary Work Cost will be determined by Landlord and
appropriate adjustments and payments by Landlord or Tenant, as the case may
be, will be made within five (5) business days thereafter.
4. PAYMENT FOR THE PRELIMINARY TENANT IMPROVEMENTS.
-----------------------------------------------
(a) PRELIMINARY ALLOWANCE. Landlord hereby grants to Tenant a
---------------------
preliminary tenant improvement allowance of up to $3.00 per useable square
foot of space deemed to be contained in the Premises (the "Preliminary
Allowance"). The Preliminary Allowance is to be used only for the
construction of the Preliminary Tenant Improvements.
(b) EXCESS COSTS. The cost of the Tenant Improvements shall be charged
------------
against the Preliminary Allowance. If the Preliminary Work Cost exceeds the
Preliminary Allowance, Tenant agrees to pay to Landlord such excess within
two (2) business days after invoice therefor (less any sums previously paid by
Tenant for such excess pursuant to the Preliminary Work Cost Estimate). If
the Preliminary Allowance exceeds the Preliminary Work Cost, Tenant will not
be entitled to any payment, rent reduction or credit therefor except as
otherwise expressly set forth herein. In no event will the Preliminary
Allowance be used to pay for Tenant's furniture, artifacts, equipment,
telephone systems or any other item of personal property which is not affixed
to the Premises.
(c) UNUSED PRELIMINARY ALLOWANCE AMOUNTS. Any unused portion of the
------------------------------------
Preliminary Allowance upon completion of the Preliminary Tenant Improvements
will not be refunded to Tenant or be available to Tenant as a credit against any
obligations of Tenant under the Lease.
5. CONSTRUCTION OF TENANT IMPROVEMENTS. Until Tenant selects the Standard
-----------------------------------
colors and styles for the Preliminary Tenant Improvement Work, approves the
Preliminary Work Cost Statement and pays Landlord the amount by which the
Preliminary Work Cost Statement exceeds the Preliminary Allowance, if any,
Landlord will be under no obligation to cause the construction of any of the
Preliminary Tenant Improvements. Following Tenant's approval of the Preliminary
Work Cost Statement described in Subparagraph 3(b) above and upon Tenant's
payment of the total amount by which such Preliminary Work Cost Statement
exceeds the Preliminary Allowance, if any, Landlord's contractor will commence
and diligently proceed with the construction of the Preliminary Tenant
Improvements, subject to Tenant Delays (as described in Paragraph 8 below) and
Force Majeure Delays (as described in Paragraph 9 below). Promptly upon the
commencement of the Preliminary Tenant Improvement Work, Landlord will furnish
Tenant with a construction schedule letter setting forth the projected
completion dates therefor and showing the deadlines for any actions required to
be taken by Tenant during such construction, and Landlord may from time to time
during construction of the Preliminary Tenant Improvements modify such schedule.
6. FREIGHT/CONSTRUCTION ELEVATOR. Landlord will, consistent with its
-----------------------------
obligation to other tenants in the Building, if appropriate and necessary, make
the freight/construction elevator reasonably available to Tenant in connection
with initial decorating, furnishing and moving into the Premises. Tenant agrees
to pay for any after-hours staffing of the freight/construction elevator, if
needed.
7. TERM COMMENCEMENT DATE AND SUBSTANTIAL COMPLETION.
-------------------------------------------------
(a) TERM COMMENCEMENT DATE. The Term of the Lease will commence on the
----------------------
date (the "Term Commencement Date") which is the earlier of:
(i) the date Tenant moves into the Premises; or
(ii) the date the Preliminary Tenant Improvements have been
"substantially completed" (as defined below); provided, however, that if
substantial completion of the Preliminary Tenant Improvements is delayed
as a result of any Tenant Delays then the Term Commencement Date as would
otherwise have been established pursuant to this Subparagraph 7(a)(ii)
will be accelerated by the number of days of such Tenant Delays.
(b) SUBSTANTIAL COMPLETION. For purposes of Subparagraph 7(a)(ii)
----------------------
above, the Tenant Improvements will be deemed to be "substantially completed"
when Landlord's contractor certifies in writing to Landlord and Tenant that
Landlord has substantially performed all of the Preliminary Tenant Improvement
Work required to be performed by Landlord under this Preliminary Tenant
Improvement Agreement, other than decoration and minor "punch-list" type items
and adjustments which do not materially interfere with Tenant's access to or
use of the Premises.
(c) DELIVERY OF POSSESSION. Landlord agrees to deliver possession of the
----------------------
Premises to Tenant when the Preliminary Tenant Improvements have been
substantially completed in accordance with Subparagraph (b) above. The parties
estimate that Landlord will deliver possession of the Premises to Tenant and
the Term of this Lease will commence on or before the Scheduled Term
Commencement Date set forth in the Basic Lease Information section of the
Lease. Landlord agrees to use its commercially reasonable efforts to cause the
Premises to be substantially completed on or before the Scheduled Term
Commencement Date. Tenant agrees that if Landlord is unable to deliver
possession of the Premises to Tenant on or prior to the Scheduled Term
Commencement Date, the Lease will not be void or voidable, nor will Landlord
be liable to Tenant for any loss or damage resulting therefrom, nor will the
expiration date of the Term be in any way extended, unless such late delivery
is due solely to the gross negligence or willful misconduct of Landlord. If
Landlord is delayed in delivering possession of the Premises due to Landlord's
gross negligence or willful misconduct or due to any Force Majeure Delay(s),
then, as Tenant's sole remedy, the Term Commencement Date will be extended one
(1) day for each day Landlord is delayed in delivering possession of the
Premises to Tenant.
Exhibit E-1 - Page 2
8. TENANT DELAYS. For purposes of this Preliminary Tenant Improvement
-------------
Agreement, "Tenant Delays" means any delay in the completion of the Preliminary
Tenant Improvements resulting from any or all of the following:
(a) Tenant's failure to timely perform any of its obligations pursuant to
this Preliminary Tenant Improvement Agreement;
(b) Tenant's request for materials, finishes, or installations which are
not readily available or which are incompatible with the Standards;
(c) any delay of Tenant in making payment to Landlord for Tenant's share
of the Preliminary Work Cost; or
(d) any other act or failure to act by Tenant, Tenant's employees,
agents, architects, independent contractors, consultants and/or any other
person performing or required to perform services on behalf of Tenant.
9. FORCE MAJEURE DELAYS. For purposes of this Preliminary Tenant
--------------------
Improvement Agreement, "Force Majeure Delays" means any actual delay in the
construction of the Preliminary Tenant Improvements, which is beyond the
reasonable control of Landlord or Tenant, as the case may be, as described in
Article XXVIII of the Lease.
IN WITNESS WHEREOF, the undersigned Landlord and Tenant have caused this
Tenant Improvement Agreement to be duly executed by their duly authorized
representatives as of the date of the Lease.
LANDLORD:
▇▇▇▇ ▇▇▇▇▇▇▇▇ OPERATING PARTNERSHIP,
a Maryland general partnership
By: Winthrop California Investors Limited Partnership,
a Delaware limited partnership,
Its General Partner
By: Three Winthrop Properties, Inc.,
a Massachusetts corporation,
Its General Partner
By:_________________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
TENANT:
T.A.R. PREFERRED MORTGAGE CORPORATION,
a California corporation
By:_________________________________
Print Name:________________________
Title:_____________________________
Exhibit E-1 - Page 3
EXHIBIT E-2
-----------
SUBSEQUENT TENANT IMPROVEMENT AGREEMENT
---------------------------------------
THIS SUBSEQUENT TENANT IMPROVEMENT AGREEMENT ("Subsequent Tenant Improvement
Agreement") is entered into as of the ___ day of January, 1997 by and between
▇▇▇▇ ▇▇▇▇▇▇▇▇ Operating Partnership, a Maryland general partnership
("Landlord"), and T.A.R. Preferred Mortgage Corporation, a California
corporation ("Tenant").
R E C I T A L S :
A. Concurrently with the execution of this Subsequent Tenant Improvement
Agreement, Landlord and Tenant have entered into a lease (the "Lease") covering
certain premises (the "Premises") more particularly described in Exhibit B-1
------------
and Exhibit B-2 attached to the Lease. All terms not defined herein have the
-----------
same meaning as set forth in the Lease. To the extent applicable, the
provisions of the Lease are incorporated herein by this reference.
B. In order to induce Tenant to enter into the Lease and in consideration of
the mutual covenants hereinafter contained, Landlord and Tenant hereby agree as
follows:
1. SUBSEQUENT TENANT IMPROVEMENTS. As used in the Lease and this Subsequent
------------------------------
Tenant Improvement Agreement, the term "Subsequent Tenant Improvements" or
"Subsequent Tenant Improvement Work" means those items of general tenant
improvement construction shown on the Final Plans (described in Paragraph 4
below), including, but not limited to, partitioning, doors, ceilings, floor
coverings, wall finishes (including paint and wall covering), electrical
(including lighting, switching, telephones, outlets, etc.), plumbing, heating,
ventilating and air conditioning, fire protection, cabinets and other millwork
and distribution of Building services such as sprinkler and electrical service.
2. WORK SCHEDULE. If Tenant shall desire that Landlord perform the
-------------
Subsequent Tenant Improvements, Tenant shall furnish Landlord with written
notice thereof. Within ten (10) business days thereafter, Landlord shall
deliver to Tenant for Tenant's review and approval, a schedule ("Work Schedule")
which will set forth the timetable for the planning and completion of the
installation of the Subsequent Tenant Improvements. The Work Schedule will set
forth each of the various items of work to be done or approval to be given by
Landlord and Tenant in connection with the completion of the Subsequent Tenant
Improvements. The Work Schedule will be submitted to Tenant for its approval,
which approval Tenant agrees not to unreasonably withhold, and, once approved by
both Landlord and Tenant, the Work Schedule will become the basis for completing
the Subsequent Tenant Improvements. All plans and drawings required by this
Subsequent Tenant Improvement Agreement and all work performed pursuant thereto
are to be prepared and performed in accordance with the Work Schedule. If
Tenant fails to approve the Work Schedule, as it may be modified after
discussions between Landlord and Tenant within five (5) business days after the
date the Work Schedule is first received by Tenant, the Work Schedule shall be
deemed to be approved by Tenant as submitted.
3. CONSTRUCTION REPRESENTATIVES. Landlord hereby appoints the following
----------------------------
person(s) as Landlord's representative ("Landlord's Representative") to act for
Landlord in all matters covered by this Subsequent Tenant Improvement Agreement:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ . Tenant hereby appoints the following person(s) as
----------------------
Tenant's representative ("Tenant's Representative") to act for Tenant in all
matters covered by this Subsequent Tenant Improvement Agreement: ▇▇▇▇▇▇ ▇.
-----------
▇▇▇▇▇▇▇▇ . All communications with respect to the matters covered by this
----------
Subsequent Tenant Improvement Agreement are to made to Landlord's Representative
or Tenant's Representative, as the case may be, in writing in compliance with
the notice provisions of the Lease. Either party may change its representative
under this Subsequent Tenant Improvement Agreement at any time by written notice
to the other party in compliance with the notice provisions of the Lease.
4. SUBSEQUENT TENANT IMPROVEMENT PLANS.
-----------------------------------
(a) PREPARATION OF SPACE PLANS. In accordance with the Work Schedule,
--------------------------
Tenant agrees to meet with Landlord's architect and/or space planner for the
purpose of promptly preparing preliminary space plans for the layout of the
Premises ("Space Plans"). The Space Plans are to be sufficient to convey the
architectural design of the Premises and layout of the Subsequent Tenant
Improvements therein and are to be submitted to Landlord in accordance with the
Work Schedule for Landlord's approval. If Landlord reasonably disapproves any
aspect of the Space Plans, Landlord will advise Tenant in writing of such
disapproval and the reasons therefor in accordance with the Work Schedule.
Tenant will then submit to Landlord for Landlord's approval, in accordance with
the Work Schedule, a redesign of the Space Plans incorporating the revisions
reasonably required by Landlord.
(b) PREPARATION OF FINAL PLANS. Based on the approved Space Plans, and in
--------------------------
accordance with the Work Schedule, Landlord's architect will prepare complete
architectural plans, drawings and specifications and complete engineered
mechanical, structural and electrical working drawings for all of the
Subsequent Tenant Improvements for the Premises (collectively, the "Final
Plans"). The Final Plans will show: (a) the subdivision (including partitions
and walls), layout, lighting, finish and decoration work (including carpeting
and other floor coverings) for the Premises; (b) all internal and external
communications and utility facilities which will require conduiting or other
improvements from the base Building shell work and/or within common areas; and
(c) all other specifications for the Subsequent Tenant Improvements. The Final
Plans will be submitted to Tenant for signature to confirm that they are
consistent with the Space Plans. If Tenant reasonably disapproves any aspect of
the Final Plans based on any inconsistency with the Space Plans, Tenant agrees
to advise Landlord in writing of such disapproval and the reasons therefor
within the time frame set forth in the Work Schedule. In accordance with the
Work Schedule, Landlord will then cause Landlord's architect to redesign the
Final Plans incorporating the revisions reasonably requested by Tenant so as to
make the Final Plans consistent with the Space Plans.
(c) REQUIREMENTS OF TENANT'S FINAL PLANS. Tenant's Final Plans will
------------------------------------
include locations and complete dimensions, and the Subsequent Tenant
Improvements, as shown on the Final Plans, will: (i) be compatible with the
Building shell and with the design, construction and equipment of the Building;
(ii) if not comprised of the Building standards set forth in the written
description thereof (the "Standards"), then compatible with and of at least
equal quality as the Standards and approved by Landlord; (iii) comply with all
applicable laws, ordinances, rules and regulations of all governmental
authorities having jurisdiction, and all applicable insurance regulations; (iv)
not require Building service beyond the level normally provided to other tenants
in the Building and will not overload the Building floors; and (v) be of a
nature and quality consistent with the overall objectives of Landlord for the
Building, as determined by Landlord in its reasonable but subjective discretion.
(d) SUBMITTAL OF FINAL PLANS. Once approved by Landlord and Tenant,
------------------------
Landlord's architect will submit the Final Plans to the appropriate governmental
agencies for plan checking and the issuance of a building permit. Landlord's
architect, with Tenant's cooperation, will make any changes to the Final Plans
which are requested by the applicable governmental authorities to obtain the
building permit. After approval of the Final Plans no further changes may be
made without the prior written approval of both Landlord and Tenant, and then
only after agreement by Tenant to pay any excess costs resulting from the design
and/or construction of such changes.
(e) CHANGES TO SHELL OF BUILDING. If the Final Plans or any amendment
----------------------------
thereof or supplement thereto shall require changes in the Building shell, the
increased cost of the Building shell work caused by such changes will be paid
for by Tenant or charged against the "Allowance" described in Paragraph 5 below.
(f) SUBSEQUENT WORK COST ESTIMATE AND STATEMENT. Prior to the commencement
-------------------------------------------
of construction of any of the Subsequent Tenant Improvements shown on the Final
Plans, Landlord will submit to Tenant a written estimate of the cost to complete
the Subsequent Tenant Improvement Work, which written estimate will be based on
the Final Plans taking into account any modifications which may be required to
reflect changes in the Final Plans required by the City or County in which the
Premises are located (the "Subsequent Work Cost Estimate"). Tenant will either
approve the Subsequent Work Cost Estimate or disapprove specific items and
submit to Landlord revisions to the Final Plans to reflect deletions of and/or
substitutions for such disapproved items. Submission and approval of the
Subsequent Work Cost Estimate will proceed in accordance with the Work Schedule.
Upon Tenant's approval of the Subsequent Work Cost Estimate (such approved
Subsequent Work Cost Estimate is hereinafter referred to as the "Subsequent
Work Cost Statement"), Landlord will have the right to purchase materials and to
commence the construction of the items included in the Subsequent Work Cost
Statement pursuant to Paragraph 6 hereof. If the total costs reflected in the
Subsequent Work Cost Statement exceed the Subsequent Allowance described in
Paragraph 5 below, Tenant agrees to pay such excess, as additional rent, within
five (5) business days after Tenant's approval of the Subsequent Work Cost
Estimate. Throughout the course of construction, any differences between the
estimated Subsequent Work Cost in the Subsequent Work Cost Statement and the
actual Subsequent Work Cost will be determined by Landlord and appropriate
adjustments and payments by Landlord or Tenant, as the case may be, will be made
within five (5) business days thereafter.
5. PAYMENT FOR THE SUBSEQUENT TENANT IMPROVEMENTS.
----------------------------------------------
(a) SUBSEQUENT ALLOWANCE. Landlord hereby grants to Tenant a tenant
--------------------
improvement allowance of up to $7.00 per useable square foot of the Premises
(the "Subsequent Allowance"). The Subsequent Allowance is to be used only for:
(i) Payment of the cost of preparing the Space Plans and the Final Plans,
including mechanical, electrical, plumbing and structural drawings and of all
other aspects necessary to complete the Subsequent Tenant Improvement Plans.
The Subsequent Allowance will not be used for the payment of extraordinary
design work not consistent with the scope of Landlord's Standards (i.e.,
above-standard design work) or for payments to any other consultants,
designers or architects other than Landlord's architect and/or Tenant's
architect.
Exhibit E-2 - Page 2
(ii) The payment of plan check, permit and license fees relating to
construction of the Subsequent Tenant Improvements.
(iii) Construction of the Subsequent Tenant Improvements, including,
without limitation, the following:
(aa) Installation within the Premises of all partitioning, doors,
floor coverings, ceilings, wall coverings and painting, millwork and
similar items;
(bb) All electrical wiring, lighting fixtures, outlets and switches,
and other electrical work necessary for the Premises;
(cc) The furnishing and installation of all duct work, terminal boxes,
diffusers and accessories necessary for the heating, ventilation and air
conditioning systems within the Premises, including the cost of meter and
key control for after-hour air conditioning;
(dd) Any additional improvements to the Premises required for Tenant's
use of the Premises including, but not limited to, odor control, special
heating, ventilation and air conditioning, noise or vibration control or
other special systems or improvements;
(ee) All fire and life safety control systems such as fire walls,
sprinklers, halon, fire alarms, including piping, wiring and accessories,
necessary for the Premises; and
(ff) Fees for the contractor and tenant improvement coordinator
including, but not limited to, fees and costs attributable to general
conditions associated with the construction of the Subsequent Tenant
Improvements.
(iv) All other costs to be expended by Landlord in the construction of
the Subsequent Tenant Improvements, including those costs incurred by Landlord
for construction of elements of the Subsequent Tenant Improvements in the
Premises, which construction was performed by Landlord prior to the execution
of this Lease by Landlord and Tenant and which construction is for the benefit
of tenants and is customarily performed by Landlord prior the execution of
leases for space in the Building for reasons of economics (examples of such
construction would include, but not be limited to, the extension of mechanical
including heating, ventilating and air conditioning systems and electrical
distribution systems outside of the core of the Building, wall construction,
column enclosures and painting outside of the core of the Building, ceiling
hanger wires and window treatment).
(b) EXCESS COSTS. The cost of each item referenced in Paragraph 5(a) above
------------
shall be charged against the Subsequent Allowance. If the Subsequent Work Cost
exceeds the Subsequent Allowance, Tenant agrees to pay to Landlord such excess
prior to the commencement of construction within five (5) business days after
invoice therefor (less any sums previously paid by Tenant for such excess
pursuant to the Subsequent Work Cost Estimate). If the Subsequent Allowance
exceeds the Subsequent Work Cost, Tenant will not be entitled to any payment,
rent reduction or credit therefor except as otherwise expressly set forth
herein. In no event will the Subsequent Allowance be used to pay for Tenant's
furniture, artifacts, equipment, telephone systems or any other item of personal
property which is not affixed to the Premises.
(c) CHANGES. If, after the Final Plans have been prepared and the
-------
Subsequent Work Cost Statement has been established, Tenant requires any changes
or substitutions to the Final Plans, any additional costs related thereto are to
be paid by Tenant to Landlord prior to the commencement of construction of the
Subsequent Tenant Improvements. Any changes to the Final Plans will be approved
by Landlord and Tenant in the manner set forth in Paragraph 4 above and will, if
necessary, require the Subsequent Work Cost Statement to be revised and agreed
upon between Landlord and Tenant in the manner set forth in Subparagraph 4(f)
above. Landlord will have the right to decline Tenant's request for a change to
the Final Plans if such changes are inconsistent with the provisions of
Paragraph 4 above, or if the change would unreasonably delay construction of the
Subsequent Tenant Improvements .
(d) GOVERNMENTAL COST INCREASES. If increases in the cost of the
---------------------------
Subsequent Tenant Improvements as set forth in the Subsequent Work Cost
Statement are due to requirements of any governmental agency, Tenant agrees to
pay Landlord the amount of such increase within five (5) days of Landlord's
written notice; provided, however, that Landlord will first apply toward any
such increase any remaining balance of the Subsequent Allowance.
(e) UNUSED SUBSEQUENT ALLOWANCE AMOUNTS. Provided that Tenant shall not
-----------------------------------
then be (and shall not at any time during the Term have been) in default under
the Lease, any unused portion of the Subsequent Allowance upon completion of the
Subsequent Tenant Improvements will be available to Tenant as a credit against
any obligations of Tenant under the Lease, subject to the terms of Paragraph 7.
6. CONSTRUCTION OF TENANT IMPROVEMENTS. Notwithstanding the foregoing, until
-----------------------------------
Tenant approves the Final Plans and the Subsequent Work Cost Statement and pays
Landlord the amount by which the Subsequent Work Cost Statement exceeds the
Subsequent Allowance, if any, Landlord will be under no
Exhibit E-2 - Page 3
obligation to expend any monies and/or to cause the construction of any of the
Subsequent Tenant Improvements; it being further agreed that Landlord shall have
no obligation to perform the Subsequent Tenant Improvements if Tenant shall then
be (or shall have at any time been) in default under the Lease. Tenant
acknowledges that Tenant shall be in possession the Premises during the
performance of the Subsequent Tenant Improvements. Landlord and Tenant shall
cooperate to mutually determine when the Subsequent Tenant Improvements will be
commenced. However, once the work begins, Landlord shall have the right to
complete the same on a continuous, uninterrupted schedule without Tenant
interference. Tenant acknowledges that such work shall be performed at such
times, including normal business hours, and in such manner as Landlord shall
reasonably determine. Tenant agrees (a) to cooperate with Landlord or Landlord's
Representative during the performance of such work, including but not limited
to, temporarily removing and relocating Tenant's and Tenant's employees'
furniture, fixtures, equipment and other personalty and (b) to release Landlord,
Landlord's Representative and their respective agents from all losses, costs,
damages and expenses, including, but not limited to, loss of business, incurred
in connection with such work.
7. CONVERSION OF SUBSEQUENT ALLOWANCE.
----------------------------------
(a) DEFINITIONS. As used in this Paragraph, the following defined terms
-----------
shall have the following meanings ascribed thereto:
(i) The term "Rent Conversion Date" shall mean the date identified by
Tenant in the Conversion Notice (as hereinafter defined) as the date for the
conversion of the Unapplied Allowance and the Rent Credit Unapplied Allowance to
a credit against the Basic Rent due under the Lease, which Rent Conversion Date
shall be on the first day of a calendar month and shall occur no earlier than
thirty (30) days following Landlord's receipt of the Conversion Notice.
(ii) The term "Unapplied Allowance" shall mean the difference between
(A) $385,994.00, which the parties hereto agree is the amount of the Subsequent
Allowance attributable to the Premises (other than the Rent Credit Space) and
(B) the aggregate amount which Landlord determines, in its sole but reasonable
judgment, has not been incurred by or on behalf of Tenant in connection with the
performance of the Subsequent Tenant Improvements in the Premises (other than
Subsequent Tenant Improvements attributable to the Rent Credit Space).
(iii) The term "Rent Credit Unapplied Allowance" shall mean the
difference between (A) $105,693.00, which the parties hereto agree is the amount
of the Subsequent Allowance attributable to the Rent Credit Space and (B) the
aggregate amount which Landlord determines, in its sole but reasonable judgment,
has not been incurred by or on behalf of Tenant in connection with the
performance of the Subsequent Tenant Improvements attributable to the Rent
Credit Space.
(b) CONVERSION. Provided that (i) the Lease is in full force and effect
----------
and Tenant is not and has not been in default under the Lease and (ii) Tenant is
in occupancy of the entire Premises and Tenant shall not have assigned the Lease
or sublet all or any part of the Premises, Tenant shall have the right,
exercisable by written notice to Landlord (the "Conversion Notice"), to convert
the Unapplied Allowance and the Rent Credit Unapplied Allowance to a credit
against the Basic Rent due under the Lease (the "Conversion Option"). If Tenant
shall exercise the Conversion Option as aforesaid on the Rent Conversion Date,
the Unapplied Allowance and Rent Credit Unapplied Allowance shall be converted
to a credit against the Basic Rent, which credit will be applied against
subsequent payments of Basic Rent under the Lease in twenty-four (24) equal
monthly installments provided and upon the condition that on the Rent Conversion
Date and on the date of each subsequent installment of such credit, Tenant shall
not be or have been in default under the Lease. Notwithstanding the foregoing
or anything to the contrary contained in the Conversion Notice, Tenant shall not
be entitled to credit any portion of the Rent Credit Unapplied Allowance against
the Basic Rent due under the Lease prior to April 1, 1998.
(c) LANDLORD'S OBLIGATIONS CEASE. Notwithstanding anything to the
-----------------------------
contrary contained herein or otherwise, upon Landlord's receipt of the
Conversion Notice, Landlord shall have no further obligation to perform the
Subsequent Improvements or to perform any act of any kind required hereunder in
connection therewith, other than as expressly set forth in Subparagraph 7(b)
above.
Exhibit E-2 - Page 4
IN WITNESS WHEREOF, the undersigned Landlord and Tenant have caused this
Tenant Improvement Agreement to be duly executed by their duly authorized
representatives as of the date of the Lease.
LANDLORD:
▇▇▇▇ ▇▇▇▇▇▇▇▇ OPERATING PARTNERSHIP,
a Maryland general partnership
By: Winthrop California Investors Limited Partnership,
a Delaware limited partnership,
Its General Partner
By: Three Winthrop Properties, Inc.,
a Massachusetts corporation,
Its General Partner
By:_____________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
TENANT:
T.A.R. PREFERRED MORTGAGE CORPORATION,
a California corporation
By:___________________________________
Print Name:________________________
Title:_____________________________
Exhibit E-2 - Page 5
EXHIBIT F
---------
FORM OF ESTOPPEL CERTIFICATE
----------------------------
The undersigned,______________________, a _____________________,
("Landlord"), with a mailing address c/o __________________________.
and ______________________________, a __________________________
("Tenant"), hereby certify to ___________________________________,
as follows:
1. Attached hereto is a true, correct and complete copy of that certain lease
dated _________________, 19___, between Landlord and Tenant (the "Lease"),
regarding the premises located at _______________________(the "Premises"). The
Lease is now in full force and effect and has not been amended, modified or
supplemented, except as set forth in Paragraph 4 below.
2. The Term of the Lease commenced on _____________, 19___.
3. The Term of the Lease shall expire on ___________, 19___.
4. The Lease has: (Initial one)
(____________) not been amended, modified, supplemented, extended, renewed or
assigned.
(____________) been amended, modified, supplemented, extended, renewed or
assigned by the following described terms or agreements, copies of which are
attached hereto:
_______________________________
_______________________________
_______________________________
5. Tenant has accepted and is now in possession of the Premises.
6. Tenant and Landlord acknowledge that Landlord's interest in the Lease will
be assigned to ___________________ and that no modification, adjustment,
revision or cancellation of the Lease or amendments thereto shall be effective
unless written consent of _________________________ is obtained, and that until
further notice, payments under the Lease may continue as heretofore.
7. The amount of Monthly Basic Rent is $______________
8. The amount of Tenant's security deposit (if any) is $_________________.
No other security deposits have been made except as follows:____________________
________________________________________________________________________________
________________________________________________________________________________
9. Tenant is paying the full lease rental which has been paid in full as of
the date hereof. No rent or other charges under the Lease have been paid for
more than thirty (30) days in advance of its due date except as follows:
10. All work required to be performed by Landlord under the Lease has been
completed except as follows:____________________________________________________
11. There are no defaults on the part of the Landlord or Tenant under the
Lease except as follows:________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
12. Neither Landlord nor Tenant has any defense as to its obligations under
the Lease and claims no set-off or counterclaim against the other party except
as follows:_____________________________________________________________________
___________________________________________
13. Tenant has no right to any concession (rental or otherwise) or similar
compensation in connection with renting the space it occupies other than as
provided in the Lease except as follows:________________________________________
___________________________________________
All provisions of the Lease and the amendments thereto (if any) referred to
above are hereby ratified.
The foregoing certification is made with the knowledge that__________________
is about to fund a loan to Landlord or __________ is about to purchase the
Project (or part thereof) from Landlord and that ____________ is relying upon
the representations herein made in funding such loan or in purchasing the
Project (or part thereof).
IN WITNESS WHEREOF, this certificate has been duly executed and delivered by
the authorized officers of the undersigned as of _______________, 19_______.
LANDLORD:
▇▇▇▇ ▇▇▇▇▇▇▇▇ OPERATING PARTNERSHIP,
a Maryland general partnership
By: Winthrop California Investors Limited Partnership,
a Delaware limited partnership,
Its General Partner
By: Three Winthrop Properties, Inc.,
a Massachusetts corporation,
Its General Partner
By:________________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its Vice President
TENANT:
______________________________
a_____________________________
By:___________________________
Print Name:__________________
Title:_______________________
By:___________________________
Print Name:__________________
Title:_______________________
Exhibit F - Page 2
EXHIBIT G
---------
RULES AND REGULATIONS
---------------------
A. General Rules and Regulations. The following rules and regulations
govern the use of the Facility, including the Building, each tenant's premises
and all Common Area. Each tenant shall be bound by such rules and regulations
and shall be responsible for the observance of these rules and regulations by
its employees, subtenants, assignees, contractors, suppliers, customers,
invitees and guests.
1. Sidewalks, halls, passages, exits, entrances, elevators, escalators and
stairways of the Facility shall not be obstructed by tenants or used by them for
any purpose other than for ingress to and egress from their respective premises.
The halls, passages, exits, entrances, elevators, stairways, balconies and roof
are not for the use of the general public and Landlord shall in all cases retain
the right to control and prevent access thereto by all persons whose presence in
the judgment of Landlord shall be prejudicial to the safety, character,
reputation and interests of the Facility and its tenants, provided that nothing
herein contained shall be construed to prevent such access to persons with whom
any tenant normally deals in the ordinary course of such tenant's business
unless such persons are engaged in illegal activity. No tenant and no employee
or invitee of and tenant shall go upon the roof of the Corporate Tower or any
other building in the Facility, except as authorized by Landlord.
2. No sign, placard, picture, name, advertisement or notice, visible from
the exterior of the premises shall be inscribed, painted, affixed, installed or
otherwise displayed by any tenant either on its premises or any part of the
Facility without the prior written consent of Landlord. Landlord shall have the
right to remove any such sign, placard, picture, name, advertisement or notice
without notice to and at the expense of the tenant. If Landlord shall have
given such consent to any tenant at any time, whether before or after the
execution of the Lease, such consent shall in no way operate as a waiver or
release of any of the provisions hereof or of such Lease and shall be deemed to
relate only to the particular sign, placard, picture, name, advertisement or
notice so consented to by Landlord and shall not be construed as dispensing with
the necessity of obtaining the specific written consent of Landlord with respect
to any other such sign, placard, picture, name, advertisement or notice. All
approved signs or lettering on doors and walls shall be printed, painted,
affixed or inscribed at the expense of the tenant by a person approved by
Landlord.
3. All bulletin boards or directories or other name identifications, if any,
will be provided exclusively for the display of the name and location of tenants
only and Landlord reserves the right to exclude any other names therefrom.
4. No curtains, draperies, blinds, shutters, shades, screens or other
coverings, awnings, hangings or decorations shall be attached to, hung or placed
in, or used in connection with, any window or door on any premises without the
prior written consent of Landlord. In any event, with the prior written consent
of Landlord, all such items shall be installed inboard of Landlord's standard
window covering and shall in no way be visible from the exterior of the
Facility. No articles shall be placed or kept on the window ▇▇▇▇▇ so as to be
visible from the exterior of the Facility. No articles shall be placed against
glass partitions or doors or any window or wall which might appear unsightly
from outside tenant's premises.
5. Landlord reserves the right to exclude from the Facility between the
hours of 6:00 p.m. and 8:00 a.m. and after 2:00 p.m. on Saturdays and at all
hours on Sundays and holidays all persons who are not tenants or their
accompanied guests in the Facility. Landlord, at its option, may require all
persons admitted to or leaving the Facility or certain portions of the Facility
during such hours to register. Each tenant shall be responsible for all persons
for whom it allows to enter the Facility and shall be liable for damages for
error with regard to the admission to or exclusion from the Facility of any
person. During the continuance of any invasion, mob, riot, public excitement or
other circumstance rendering such action advisable in Landlord's opinion,
Landlord reserves the right to prevent access to the Facility by closing the
doors, or otherwise, for the safety of tenants and protection of the Facility
and property in the Facility. Subject to Landlord's prior reasonable approval,
tenant shall not permit the visit to the premises of persons in such numbers or
under such conditions as will interfere with the use and enjoyment of the Common
Area by others or with the use and enjoyment of the premises leased to other
tenants in the Facility.
6. No tenant shall employ any person or persons other than the janitor of
Landlord for the purpose of cleaning its premises unless otherwise agreed to by
Landlord in writing. Except with the written consent of Landlord no person or
persons other than those approved by Landlord shall be permitted to enter the
Facility for the purpose of cleaning the same. No tenant shall cause any
unnecessary labor by reason of such tenant's carelessness or indifference in the
preservation of good order and cleanliness of the premises. Janitorial services
shall be provided to Landlord by independent contractors who are bonded.
7. No tenant shall obtain for use upon its premises food, beverage, or other
similar services except through facilities provided by Landlord (and maintained
by tenant) and under regulations fixed by Landlord, or accept barbering or
bootblacking services in its premises except from persons authorized by Landlord
at such reasonable hours and under such reasonable regulations as may be fixed
by Landlord. Landlord expressly reserves the right to absolutely prohibit
solicitation, canvassing, sales and displays of products, goods and wares in all
portions of the Facility except for such activities as may be expressly
requested by a tenant and conducted solely within such requesting tenant's
premises. Landlord reserves the right to restrict and regulate the use of the
Common Area of the Facility and the Building by invitees of tenants providing
services to tenants on a periodic or daily basis including food and beverage
vendors. Such restrictions may include limitations on time, place, manner and
duration of access to a tenant's premises for such purposes. Without limiting
the foregoing, Landlord may require that such parties use service elevators,
halls, passageways and stairways for such purposes to preserve access within the
Building for tenants and the general public. No tenant shall install, maintain
operate upon the premises any vending machine without the written consent of
Landlord, except for machines which dispense candy, ice water, soft drinks and
cigarettes. Microwave ovens for preparation of food for the convenience of a
tenant's employees, guests and invitees are permitted, as provided in Paragraph
15 of these rules and regulations.
8. Each tenant shall see that all doors of its premises are closed and
securely locked and must observe strict care and caution that all water faucets
or water apparatus are entirely shut off before the tenant or its employees
leave such premises, and that all utilities shall likewise be carefully and
entirely shut off, so as to prevent waste or damage, and for any default or
carelessness the tenant shall make good all injuries sustained by other tenants
or occupants of the Facility or Landlord. On multiple-tenancy floors, all
tenants shall keep the door or doors to the Facility corridors closed at all
times except for ingress or egress.
9. Tenant shall use its reasonable efforts to not waste electricity, water
or air-conditioning and agrees to cooperate fully with Landlord to assure the
most effective operation of the Facility's heating and air-conditioning, and
shall refrain from attempting to adjust any controls other than room thermostats
installed for tenant's use.
10. No tenant shall alter any lock or access device or install any new
additional locks or access devices or any bolts on any door of its premises
without the prior written consent of Landlord. If Landlord shall give its
consent, the tenant shall in each case furnish Landlord with a key for any such
lock, bolt or device. Landlord agrees to cooperate with tenant in coordinating
security access and control systems for the premises and the facility. In no
event shall tenant install or operate such security systems which are in
conflict with systems installed or operated by Landlord.
11. No tenant shall make or have made additional copies of any keys or
access provided by Landlord. Each tenant, upon the termination of the tenancy,
shall deliver to Landlord all the keys or access devices for the Facility,
offices, rooms and toilet rooms which shall have been furnished the tenant or
which the tenant shall have had made. In the event of the loss of any keys or
access devices so furnished by Landlord, tenant shall pay Landlord therefor.
12. The toilet rooms, toilets, urinals, wash bowls and other apparatus
shall not be used for any purpose other than that for which they were
constructed and no foreign substance of any kind whatsoever shall be thrown
therein, and the expense of any breakage, stoppage or damage resulting from the
violation of this rule shall be borne by the tenant who, or whose employees or
invitees, shall have caused it.
13. No tenant shall use or keep in premises or otherwise on the Facility
any kerosene, gasoline or inflammable or combustible fluid or material other
than limited quantities necessary for the operation or maintenance of office or
office equipment. Any permitted corrosion, flammable or other special wastes
shall be handled for disposal as directed by Landlord. No tenant shall use any
method of heating or air-conditioning other than that supplied by Landlord.
14. No tenant shall use, keep or permit to be used or kept in its premises
any foul or noxious gas or substance or permit or suffer such premises to be
occupied or used in a manner offensive or objectionable to Landlord or other
occupants of the Facility by reason of noise, odors and/or vibrations or
interfere in any way with other tenants or those having business therein, nor
shall any animals or birds be brought or kept in or about any premises of the
Facility.
15. Except as otherwise permitted by Landlord, no cooking shall be done or
permitted by any tenant on its premises (except that use by tenant of
Underwriters' Laboratory approved equipment for the preparation of beverages and
food for tenants and their employees, guests and invitees shall be permitted,
provided that such equipment and use is in accordance with all applicable
federal, state and city laws, codes, ordinances, rules and regulations), nor
shall premises be used for washing clothes or lodging.
16. Except with the prior written consent of Landlord, no tenant shall
sell, or permit the sale, at retail, of newspapers, magazines, periodicals,
theater tickets or any other goods or merchandise in or on any premises, nor
shall tenant carry on, or permit or allow any employee or other person to carry
on, the business of stenography, typewriting or any similar business in or from
any premises for the service or accommodation of occupants of any other
Facility, nor shall the premises of any tenant be used for the storage of
merchandise or
Exhibit G - Page 2
for manufacturing of any kind, or the business of a public ▇▇▇▇▇▇ shop, beauty
parlor, nor shall the premises of any tenant be used for any improper, immoral
or objectionable purpose, or any business or activity other than that
specifically provided for in such tenant's lease.
17. If Tenant requires telegraphic, telephonic, burglar alarm or similar
services, it shall first obtain, and comply with, Landlord's instructions in
their installation.
18. Landlord will direct electricians as to where and how telephone
telegraph and electrical wires are to be introduced or installed. No boring or
cutting for wires will be allowed without the prior written consent of Landlord.
The location of burglar alarms, telephones, call boxes and other equipment
affixed to all premises shall be subject to the written approval of Landlord.
19. No tenant without Landlord's prior approval shall install any radio or
television antenna, loudspeaker or any other device on the exterior walls or the
roof of the Facility. No tenant shall interfere with radio or television
broadcasting or reception from or in the Facility or elsewhere.
20. No tenant shall lay linoleum, tile, carpet or any other floor covering
so that the same shall be affixed to the floor of its premises in any manner
except as approved in writing by Landlord. The expense of repairing any damage
resulting from a violation of this rule or the removal of any floor covering
shall be borne by the tenant of whom, or by whose contractors, employees or
invitees, the damage shall have been caused. No tenant shall place floormats or
other objects outside the boundaries of its premises.
21. No furniture, freight, equipment, materials, supplies, packages,
merchandise or other property will be received in the Facility except between
such hours and at such locations designated by Landlord. Such items shall be
carried up and down only in such elevators as shall be designated by Landlord.
Tenant shall be responsible for receiving, checking, inspecting and paying for
deliveries of such merchandise, supplies, goods, materials, equipment and
products addressed to tenant and shall be responsible for moving these items to
its premises. Landlord will not accept deliveries for tenants.
22. Landlord shall have the right to prescribe the weight, size and
position of all safes, furniture or other heavy equipment brought into the
Facility. Safes or other heavy objects shall, if considered necessary by
Landlord, stand on wood strips of such thickness as determined by Landlord to be
necessary to distribute properly the weight thereof. Landlord shall not be
responsible for loss of or damage to any such safe, equipment or property from
any cause, and all damage done to the Facility by moving or maintaining any such
safe, equipment or other property shall be repaired at the expense of the
tenant.
23. No tenant shall place a load upon any floor of the premises which
exceeds the load per square foot which such floor was designed to carry and
which is allowed by law. No tenant shall ▇▇▇▇, or drive nails, screw or drill
into, the partitions, woodwork or plaster or in any way deface such premises or
any part thereof, except as may be reasonably necessary in minor decoration of
the premises. No tenant shall ▇▇▇▇ or defile escalators, elevators, water
closets, toilet room walls, windows, doors, or any other part of the Facility or
the Common Area.
24. There shall not be used in any space, or in the public areas of the
Common Area, either by any tenant or others, any hand trucks except those
equipped with rubber tires and side guards or such other material-handling
equipment as Landlord may approve. No other vehicles of any kind (except a
wheelchair for an individual) shall be brought by any tenant into or kept in or
about the premises.
25. Each tenant shall store all its trash and garbage within the interior
of its premises or within receptacles provided by Landlord. No material shall
be placed in the trash boxes or receptacles if such material is of such nature
that it may not be disposed of in the ordinary and customary manner of removing
and disposing of trash and garbage in the city without violation of any law or
ordinance governing such disposal. All trash, garbage and refuse disposal shall
be made only through entryways and elevators provided for such purposes and at
such time as Landlord shall designate.
26. Canvassing, soliciting, distribution of handbills or any other written
material, and peddling in the Facility are prohibited and each tenant shall
cooperate to prevent the same. No tenant shall make room-to-room solicitation
of business from other tenants in the Facility.
27. Landlord may in the exterior of the Facility designate and use or
authorize the use of areas for shows, festivals or other events, both public and
private. Any fees collected from individuals or organizations for the use of
such areas may be used by Landlord for any purpose Landlord desires.
28. Tenant shall: (a) not effect or execute any agreement or other
instrument whereby its premises or any part thereof is restricted on the basis
of age, religion, sex or national origin in the sale, lease or occupancy
thereof; (b) not discriminate in the use or occupancy of any or all of its
premises against any person because of age, race, color, sex, religion or
national origin, not shall any person be deprived of the right to use its
premises or any of the facilities therein by reason of race, color, sex,
religion, national origin, or, except where required by law, age: and (c) comply
with all federal, state and local laws, ordinances, rules and regulations, in
effect
Exhibit G - Page 3
from time to time, prohibiting discrimination or segregation by reason of race,
religion, color, sex, national origin, or except where dictated by law, age.
29. Landlord shall have the right, exercisable upon reasonable advance
notice and without liability to any tenant, to change the name and address of
the Facility and the arrangement and/or location of the Common Area and to
install and maintain a sign or signs on the exterior of any building or in any
corridor and passageway.
30. Landlord reserves and shall have the right voluntarily or pursuant to
government requirements, at Landlord's expense, to make repairs, alterations or
improvements in or to the Facility or any part thereof, and during such repair,
alteration or improvement work to temporarily block or close entrances, doors,
windows, corridors, elevators, or other Common Area, provided that such
temporary blocking or closing shall not unreasonably interfere with any tenant's
use and occupancy of its premises or the Facility and take any and all measures,
including inspections, repairs, alterations, additions and improvements to the
Premises or the Facility as may be necessary or desirable for the safety,
protection or preservation of the Premises or Facility, the Landlord's interest
therein, or as may be necessary or desirable in the operation of the Facility.
31. Landlord reserves the right to grant any tenant the exclusive right to
conduct any particular business or undertaking in the Facility.
32. Landlord reserves the right to exclude or expel from the Facility any
person who, in Landlord's judgment is intoxicated or under the influence of
liquor or drugs or who is in violation of any of the Rules and Regulations of
the Facility.
33. Without the prior written consent of Landlord, no tenant shall use the
name of the Facility in connection with or in promoting or advertising the
business of tenant except as such tenant's address. Landlord may prohibit any
advertisement by any tenant, which in Landlord's opinion, tends to impair the
reputation or desirability of the Facility. Upon receipt of written notice from
Landlord objecting to such advertising, tenant shall cease and refrain from such
advertising.
34. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental agency.
35. Tenant assumes any and all responsibility for protecting its premises
from theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to its premises closed.
36. Tenants authorized to sell or serve food shall not employ persons who
do not have and keep a neat, clean appearance or who are sloppy and careless in
their food handling work habits.
37. The requirements of tenants will be attended to only upon application
at the office of the Facility by an authorized individual. Employees of Landlord
shall not perform any work or do anything outside of their regular duties unless
under special instructions from Landlord, and no employees will admit any person
(tenant or otherwise) to any office without specific instructions from Landlord.
38. Landlord may waive any one or more of these Rules and regulations for
the benefit of any particular tenant or tenants, but no such waiver by Landlord
shall be construed as a waiver of such Rules and Regulations in favor of any
other tenant or tenants, nor prevent Landlord from thereafter enforcing any such
Rules and Regulations against any or all tenants of the Facility.
Notwithstanding the foregoing, Landlord shall not enforce the rules and
regulations against Tenant in a discriminatory manner.
39. Landlord reserves the right to make such other and reasonable rules and
regulations as in its judgment may from time to time be needed for safety and
security, for care and cleanliness of the Facility and for the preservation of
good order therein. Tenant agrees to abide by all such Rules and Regulations
which are adopted.
40. The Rules and Regulations are in addition to, and shall not be
construed to in any way modify, alter or amend, in whole or in part, the terms,
covenants, agreements and conditions of any lease of any Premises in the
Facility. Whenever in these Rules and Regulations the word "tenant" is used it
shall apply to and include the tenant under the lease and its agents, employees,
customer and vendors. Similarly, the word "Landlord" shall include the
Landlord, its agents, employees, contractors and vendors.
B. Parking Rules and Regulations. The following rules and regulations
govern the use of the Parking Facilities which serve the Facility. Tenant will
be bound by such rules and regulations and agrees to cause its employees,
subtenants, assignees, contractors, suppliers, customers and invitees to observe
the same:
1. Tenant will not permit or allow any vehicles that belong to or are
controlled by Tenant or Tenant's employees, subtenants, customers or invitees to
be loaded, unloaded or parked in areas other than those designated by Landlord
for such activities. No vehicles are to be left in the parking areas overnight
and no
Exhibit G - Page 4
vehicles are to be parked in the parking areas other than normally sized
passenger automobiles, motorcycles and pick-up trucks. No extended term storage
of vehicles is permitted.
2. Vehicles must be parked entirely within painted stall lines of a single
parking stall.
3. All directional signs and arrows must be observed.
4. The speed limit within all parking areas shall be five (5) miles per hour
or as otherwise posted.
5. Parking is prohibited:
(a) in areas not striped for parking;
(b) in aisles or on ramps, if any;
(c) where "no parking" signs are posted;
(d) in cross-hatched areas; and
(e) in such other areas as may be designated from time to time by
Landlord or Landlord's parking operator.
6. Landlord reserves the right, without cost or liability to Landlord, to
tow any vehicle if such vehicle's audio theft alarm system remains engaged for
an unreasonable period of time.
7. Washing, waxing, cleaning or servicing of any vehicle in any area not
specifically reserved for such purpose is prohibited.
8. Landlord may refuse to permit any person to park in the parking
facilities who violates these rules with unreasonable frequency, and any
violation of these rules shall subject the violator's car to removal, at such
car owner's expense. Tenant agrees to use its best efforts to acquaint its
employees, subtenants, assignees, contractors, suppliers, customers and invitees
with these parking provisions, rules and regulations.
9. Parking stickers, access cards, or any other device or form of
identification supplied by Landlord as a condition of use of the parking
facilities shall remain the property of Landlord. Parking identification
devices, if utilized by Landlord, must be displayed as requested and may not be
mutilated in any manner. The serial number of the parking identification device
may not be obliterated. Parking identification devices, if any, are not
transferable and any device in the possession of an unauthorized holder will be
void. Landlord reserves the right to refuse the sale of monthly stickers or
other parking identification devices to Tenant or any of its agents, employees
or representatives who willfully refuse to comply with these rules and
regulations and all unposted city, state or federal ordinances, laws or
agreements.
10. Loss or theft of parking identification devices or access cards must be
reported to the management office in the Facility immediately, and a lost or
stolen report must be filed by the Tenant or user of such parking identification
device or access card at the time. Landlord has the right to exclude any
vehicle from the Parking Facilities that does not have a parking identification
device or valid access card. Any parking identification device or access card
which is reported lost or stolen and which is subsequently found in the
possession of an unauthorized person will be confiscated and the illegal holder
will be subject to prosecution.
11. All damage or loss claimed to be the responsibility of Landlord must be
reported, itemized in writing and delivered to the management office located
within the Facility within ten (10) business days after any claimed damage or
loss occurs. Any claim not so made is waived. Landlord is not responsible for
damage by water or fire, or for the acts or omissions of others, or for articles
left in vehicles. In any event, the total liability of Landlord, if any, is
limited to Two Hundred Fifty Dollars ($250.00) for all damages or loss to any
car. Landlord is not responsible for loss of use.
12. The parking operators, managers or attendants are not authorized to
make or allow any exceptions to these rules and regulations, without the express
written consent of Landlord. Any exceptions to these rules and regulations made
by the parking operators, managers or attendants without the express written
consent of Landlord will not be deemed to have been approved by Landlord.
13. Landlord reserves the right, without cost or liability to Landlord, to
tow any vehicles which are used or parked in violation of these rules and
regulations.
14. Landlord reserves the right from time to time to modify and/or adopt
such other reasonable and non-discriminatory rules and regulations for the
Parking Facilities as it deems reasonably necessary for the operation of the
Parking Facilities.
EXHIBIT H
---------
EXPANSION SPACE
---------------
TABLE OF CONTENTS
ARTICLE Page
------- ----
BASIC LEASE INFORMATION................................................................................ i
R E C I T A L S........................................................................................ 1
- - - - - - - -
ARTICLE I - DEFINITIONS................................................................................ 1
ARTICLE II - PREMISES 1
2.01 LEASE OF PREMISES......................................................................... 1
2.02 CALCULATIONS OF AREAS..................................................................... 1
2.03 COMMON AREA............................................................................... 1
2.04 ACCESS.................................................................................... 2
ARTICLE III - TERM AND POSSESSION 2
3.01 TERM COMMENCEMENT......................................................................... 2
3.02 DELIVERY OF POSSESSION.................................................................... 2
3.03 CONDITION OF PREMISES..................................................................... 2
ARTICLE IV - RENT...................................................................................... 3
4.01 BASIC RENT................................................................................ 3
4.02 OPERATING EXPENSES........................................................................ 3
4.03 SECURITY DEPOSIT.......................................................................... 3
4.04 PAYMENT; LATE CHARGES..................................................................... 3
4.05 ALL PAYMENTS AS RENT...................................................................... 4
ARTICLE V - RESTRICTIONS ON USE/COMPLIANCE WITH LAWS................................................... 4
5.01 USE....................................................................................... 4
ARTICLE VI - ALTERATIONS............................................................................... 4
6.01 TENANT ALTERATIONS........................................................................ 4
6.02 INSTALLATION OF ALTERATIONS............................................................... 4
6.03 REMOVAL OF ALTERATIONS.................................................................... 5
6.04 PAYMENT OF LANDLORD'S FEES AND COSTS...................................................... 6
6.05 REMOVAL OF PERSONAL PROPERTY.............................................................. 6
6.06 FAILURE TO REMOVE ITEMS................................................................... 6
ARTICLE VII - REPAIRS.................................................................................. 6
7.01 LANDLORD'S OBLIGATIONS.................................................................... 6
7.02 TENANT'S OBLIGATIONS...................................................................... 7
7.03 TENANT'S FAILURE TO REPAIR................................................................ 7
ARTICLE VIII - LIENS................................................................................... 7
ARTICLE IX - ASSIGNMENT AND SUBLETTING................................................................. 7
9.01 RIGHT TO ASSIGN, SUBLEASE AND ENCUMBER.................................................... 7
9.02 TRANSFER NOTICE........................................................................... 7
9.03 LANDLORD'S OPTIONS........................................................................ 8
9.04 REASONABLE DISAPPROVAL.................................................................... 8
9.05 ADDITIONAL CONDITIONS..................................................................... 8
9.06 EXCESS RENT............................................................................... 9
9.07 RECAPTURE RIGHTS.......................................................................... 9
9.08 NO RELEASE................................................................................ 9
9.09 ADMINISTRATIVE AND ATTORNEYS' FEES........................................................ 9
9.10 EFFECTIVENESS CONDITIONED UPON ASSUMPTION................................................. 9
9.11 LIABILITY OF TENANT....................................................................... 10
9.12 RELATED CORPORATION....................................................................... 10
ARTICLE X - INSURANCE AND INDEMNIFICATION.............................................................. 10
10.01 LIMITATION ON LANDLORD'S LIABILITY........................................................ 10
10.02 INDEMNIFICATION OF LANDLORD............................................................... 10
10.03 LANDLORD'S INDEMNITY...................................................................... 11
10.04 SURVIVAL OF INDEMNITIES................................................................... 11
10.05 TENANT'S INSURANCE........................................................................ 11
10.06 WAIVER OF SUBROGATION..................................................................... 12
iii
ARTICLE XI - SERVICES AND UTILITIES 12
11.01 MAINTENANCE BY LANDLORD.................................................................................. 12
11.02 DELIVERY OF SERVICES AND UTILITIES....................................................................... 12
11.03 EQUIPMENT REQUIRING EXCESSIVE UTILITIES.................................................................. 12
11.04 RIGHT TO CURTAIL SERVICES AND UTILITIES.................................................................. 12
11.05 AFTER HOURS AND ADDITIONAL SERVICES...................................................................... 13
ARTICLE XII - ESTOPPEL CERTIFICATE.................................................................................... 13
ARTICLE XIII - PARKING................................................................................................ 13
13.01 SPACES................................................................................................... 13
13.02 CONTROL.................................................................................................. 14
13.03 GENERAL PROVISIONS....................................................................................... 14
13.04 COOPERATION WITH TRAFFIC MITIGATION MEASURES............................................................. 14
13.05 PARKING RULES AND REGULATIONS............................................................................ 14
ARTICLE XIV - SUBSTITUTION............................................................................................ 14
ARTICLE XV - SURRENDER OF PREMISES; HOLDING OVER...................................................................... 15
15.01 SURRENDER OF PREMISES.................................................................................... 15
15.02 NO MERGER................................................................................................ 15
15.03 HOLDING OVER............................................................................................. 15
ARTICLE XVI - SUBORDINATION AND QUIET ENJOYMENT....................................................................... 15
16.01 SUBORDINATION............................................................................................ 15
16.02 QUIET ENJOYMENT.......................................................................................... 16
ARTICLE XVII - RULES AND REGULATIONS.................................................................................. 16
ARTICLE XVIII - ENTRY................................................................................................. 16
ARTICLE XIX - DEFAULT BY TENANT....................................................................................... 16
19.01 EVENTS OF DEFAULT........................................................................................ 16
19.02 REMEDIES UPON DEFAULT OR TERMINATION..................................................................... 17
19.03 DAMAGES UPON TERMINATION................................................................................. 17
19.04 OPERATING EXPENSES....................................................................................... 18
19.05 PERFORMANCE BY LANDLORD.................................................................................. 18
19.06 LANDLORD'S SECURITY INTEREST............................................................................. 18
19.07 REMEDIES CUMULATIVE...................................................................................... 18
ARTICLE XX - DAMAGE BY FIRE OR OTHER CASUALTY......................................................................... 18
20.01 NOTICE OF LOSS........................................................................................... 18
20.02 SUBSTANTIAL OR TOTAL DAMAGE.............................................................................. 18
20.03 LOSS CAUSED BY TENANT OR TENANT'S EMPLOYEES.............................................................. 19
20.04 DESTRUCTION DURING FINAL YEAR............................................................................ 19
20.05 DESTRUCTION OF TENANT'S PERSONAL PROPERTY, TENANT'S EXTRA IMPROVEMENTS OR PROPERTY OF
TENANT'S EMPLOYEES....................................................................................... 19
20.06 EXCLUSIVE REMEDY......................................................................................... 19
20.07 DELAYS................................................................................................... 19
20.08 PROPERTY DAMAGE.......................................................................................... 19
ARTICLE XXI - EMINENT DOMAIN.......................................................................................... 20
21.01 TOTAL OR SUBSTANTIAL TAKING.............................................................................. 20
21.02 PARTIAL TAKING........................................................................................... 20
21.03 TEMPORARY TAKING......................................................................................... 20
ARTICLE XXII - SALE BY LANDLORD....................................................................................... 20
ARTICLE XXIII - WAIVER................................................................................................ 20
ARTICLE XXIV - NOTICES................................................................................................ 21
ARTICLE XXV - OPERATING EXPENSES...................................................................................... 21
25.01 GENERAL.................................................................................................. 21
25.02 PAYMENT OF OPERATING EXPENSES............................................................................ 21
25.03 COMPUTATION OF OPERATING EXPENSES ADJUSTMENT............................................................. 21
25.04 MINIMUM RENT............................................................................................. 21
25.05 PRORATION................................................................................................ 22
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ARTICLE XXVI - TAXES PAYABLE BY TENANT............................................................................... 22
26.01 PERSONALTY.............................................................................................. 22
26.02 TAXES AS RENT........................................................................................... 22
ARTICLE XXVII - LANDLORD'S DEFAULT................................................................................... 22
27.01 NOTICE.................................................................................................. 22
27.02 REMEDY FOR BREACH....................................................................................... 22
ARTICLE XXVIII - FORCE MAJEURE....................................................................................... 22
ARTICLE XXIX - LANDLORD'S MORTGAGEES AND LESSORS..................................................................... 22
29.01 MODIFICATIONS........................................................................................... 22
29.02 CURE RIGHTS............................................................................................. 22
ARTICLE XXX - SIGNS.................................................................................................. 23
ARTICLE XXXI - FINANCIAL STATEMENTS.................................................................................. 23
ARTICLE XXXII - EXPANSION OF PREMISES................................................................................ 23
32.01 EXERCISE OF EXPANSION................................................................................... 23
32.02 EFFECT OF EXERCISE...................................................................................... 23
32.03 TENANT IMPROVEMENTS..................................................................................... 24
ARTICLE XXXIII - RIGHT OF FIRST OFFER................................................................................ 25
33.01 EXERCISE OF RIGHT....................................................................................... 25
33.02 EFFECT OF EXERCISE...................................................................................... 25
33.03 OPTIONS PERSONAL........................................................................................ 25
ARTICLE XXXIV - MISCELLANEOUS........................................................................................ 26
34.01 SUCCESSORS AND ASSIGNS.................................................................................. 26
34.02 ATTORNEYS' FEES......................................................................................... 26
34.03 LIGHT AND AIR........................................................................................... 26
34.04 PUBLIC TRANSPORTATION................................................................................... 26
34.05 HEADINGS................................................................................................ 26
34.06 USE OF PRONOUNS......................................................................................... 26
34.07 TIME OF THE ESSENCE..................................................................................... 26
34.09 BROKERS................................................................................................. 26
34.10 MODIFICATIONS........................................................................................... 26
34.11 UNENFORCEABLE PROVISIONS................................................................................ 26
34.12 COVENANTS AND CONDITIONS................................................................................ 26
34.13 INCORPORATION........................................................................................... 26
34.14 RECORDATION OF MEMORANDUM; QUITCLAIM AND RELEASE AGREEMENT.............................................. 26
34.15 ADDITIONAL INSTRUMENTS.................................................................................. 27
34.16 ENTIRE LEASE BETWEEN PARTIES............................................................................ 27
34.17 NONDISCLOSURE OF LEASE TERMS............................................................................ 27
34.18 JOINT AND SEVERAL OBLIGATIONS........................................................................... 27
34.19 TENANT AS CORPORATION OR PARTNERSHIP.................................................................... 27
34.20 EXAMINATION OF LEASE.................................................................................... 27
34.21 LANDLORD'S AUTHORITY.................................................................................... 27
EXHIBITS
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EXHIBIT A - LEGAL DESCRIPTION OF LAND COMPRISING THE FACILITY
EXHIBIT A-1 - SITE PLAN OF THE FACILITY AND THE PROJECT
EXHIBIT B-1 - FLOOR PLAN OF THE PREMISES AT ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
EXHIBIT B-2 - FLOOR PLAN OF THE PREMISES AT ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
EXHIBIT C - DEFINITIONS
EXHIBIT D - COMMENCEMENT MEMORANDUM
EXHIBIT E-1 PRELIMINARY TENANT IMPROVEMENT AGREEMENT
EXHIBIT E-2 SUBSEQUENT TENANT IMPROVEMENT AGREEMENT
EXHIBIT F - FORM OF ESTOPPEL CERTIFICATE
EXHIBIT G - RULES AND REGULATIONS
EXHIBIT H - EXPANSION SPACE
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