EXHIBIT 10.4(b)
OFFICE LEASE
------------
CENTURY PLAZA TOWERS
--------------------
DELTA TOWERS JOINT VENTURE,
a California General Partnership,
as Landlord,
and
FRANCHISE MORTGAGE ACCEPTANCE COMPANY, L.L.C.,
a California limited liability company,
as Tenant.
CENTURY PLAZA TOWERS
--------------------
INDEX OF MAJOR DEFINED TERMS
----------------------------
LOCATION OF
DEFINITION IN
DEFINED TERMS OFFICE LEASE
- ------------- -------------
ACM............................................................ 35
Additional Notice.............................................. 13
Additional Rent................................................ 5
Adjustment Year................................................ 9
Alterations.................................................... 14
Base Building.................................................. 14
Base Rent...................................................... 4
Base Year...................................................... 5
BOMA........................................................... 9
Brokers........................................................ 34
Building....................................................... 3
Building Common Areas.......................................... 3
Building Direct Expenses....................................... 5
Building Hours................................................. 11
Building Operating Expenses.................................... 5
Building Tax Expenses.......................................... 5
Business Affiliates............................................ 23
Century Plaza Towers........................................... 3
Common Areas................................................... 3
Comparable Buildings........................................... 3
Contemplated Effective Date.................................... 22
Contemplated Transfer Space.................................... 22
Control........................................................ 23
Cost Pools..................................................... 10
Damage Termination Date........................................ 18
Damage Termination Notice...................................... 18
Direct Expenses................................................ 5
Eligibility Period............................................. 13
Estimate....................................................... 10
Estimate Statement............................................. 10
Estimated Excess............................................... 10
Excess......................................................... 10
Expense Year................................................... 5
Force Majeure.................................................. 32
Holidays....................................................... 11
HVAC........................................................... 11
Initial Notice................................................. 13
Intention of Transfer Notice................................... 22
Landlord....................................................... 1
Landlord Default............................................... 13
Landlord Parties............................................... 16
Lease.......................................................... 1
Lease Commencement Date........................................ 4
Lease Expiration Date.......................................... 4
Lease Term..................................................... 4
Lease Year..................................................... 4
Lines.......................................................... 35
Mail........................................................... 32
Nine Month Period.............................................. 22
Notices........................................................ 32
Operating Expenses............................................ 5
Original Improvements.......................................... 17
Other Improvements............................................. 34
(iii)
Premises....................................................... 3
Project........................................................ 3
Project Common Areas........................................... 3
Proposition 13................................................. 8
Readjustment Year.............................................. 9
Renovations.................................................... 35
Rent........................................................... 5
rentable square feet........................................... 4
Reserved Space................................................. 30
Security Deposit............................................... 27
Statement...................................................... 10
Subject Space.................................................. 20
Summary........................................................ 1
Tax Expenses................................................... 8
Tenant......................................................... 1
Tenant Parties................................................. 16
Tenant's Share................................................. 9
Tenant's Subleasing Costs...................................... 21
Transfer Notice................................................ 20
Transfer Premium............................................... 21
Transferee..................................................... 20
Transfers...................................................... 20
usable square feet............................................. 4
(iv)
CENTURY PLAZA TOWERS
--------------------
OFFICE LEASE
------------
This Office Lease (the "LEASE"), dated as of the date set forth in Section
1 of the Summary of Basic Lease Information (the "SUMMARY"), below, is made by
and between DELTA TOWERS JOINT VENTURE, a California general partnership
("LANDLORD"), and FRANCHISE MORTGAGE ACCEPTANCE COMPANY, L.L.P., a California
limited liability company ("TENANT").
SUMMARY OF BASIC LEASE INFORMATION
---------------------------------
TERMS OF LEASE DESCRIPTION
- -------------- -----------
1. Date: August 24, 1995
2. Premises
(Article 1).
2.1 Building: 2029 Century Park East
2.2. Premises: Approximately 1,884 rentable (1,628
usable) square feet of space located
on the eleventh (11th) floor of the
Building, as further set forth in
EXHIBIT A to the Office Lease.
---------
3. Lease Term
(Article 2).
3.1 Length of Term: Three (3) years.
3.2 Lease Commencement The earlier to occur of (i) the date
Date: upon which Tenant first commences to
conduct business in the Premises and
(ii) September 1, 1995.
3.3 Lease Expiration Date: The date immediately preceding the 3rd
anniversary of the Lease Commencement
Date.
4. Base Rent (Article 3):
Annual
Monthly Rental Rate
Annual Installment per Rentable
Lease Year Base Rent of Base Rent Square Foot
---------- --------- ------------ ------------
1-3 $40,694.40 $3,391.20 $21.60
5. Base Year
(Article 4): Calendar year 1995.
6. Tenant's Share
(Article 4): Approximately .1675%.
7. Permitted Use
(Article 5): General office use consistent with
a first-class office building.
-1-
8. Security Deposit
(Article 21): $3,391.20.
9. Parking Passes
(article 28): Three (3) unreserved parking passes for
every 1,000 rentable square feet of the
Premises and one (1) reserved parking
pass.
10. Address of Tenant
(Section 29.18): Franchise Mortgage Acceptance Company
600 Steamboat Road
Greenwich, Connecticut 06830
Attention: Mr. Wayne L. Knyal, President
(Prior to Lease Commencement Date)
and
Franchise Mortgage Acceptance Company
2029 Century Park East
Suite 1190
Los Angeles, California 90067
Attention: Mr. Wayne L. Knyal, President
(After Lease Commencement Date)
11. Address of Landlord
(Section 29.18): See Section 29.18 of the Lease.
12. Broker(s)
(Section 29.24): Premisys Real Estate Services, Inc.
2049 Century Park East, Suite 2650
Los Angeles, California 90067-3283
and
Colliers Damner Pike
353 Sacramento Street
Suite 500
San Francisco, California 94111
13. Guarantor:
(Section 29.34) Imperial Credit Industries, Inc.
a California corporation
-2-
ARTICLE 1
---------
PREMISES, BUILDING, PROJECT, AND COMMON AREAS
---------------------------------------------
1.1 Premises, Building, Project and Common Areas.
--------------------------------------------
1.1.1 THE PREMISES. Landlord hereby leases to Tenant and Tenant
------------
hereby leases from Landlord the premises set forth in Section 2.2 of the Summary
(the "PREMISES"). The outline of the Premises is set forth in EXHIBIT A attached
---------
hereto and each floor or floors of the Premises has the number of rentable
square feet as set forth in Section 2.2 of the Summary. The parties hereto agree
that the lease of the Premises is upon and subject to the terms, covenants and
conditions herein set forth, and Tenant covenants as a material part of the
consideration for this Lease to keep and perform each and all of such terms,
covenants and conditions by it to be kept and performed and that this Lease is
made upon the condition of such performance. The parties hereto hereby
acknowledge that the purpose of EXHIBIT A is to show the approximate location of
---------
the Premises in the "Building," as that term is defined in Section 1.1.2, below,
only, and such Exhibit is not meant to constitute an agreement, representation
or warranty as to the construction of the Premises, the precise area thereof or
the specific location of the "Common Areas," as that term is defined in Section
1.1.3, below, or the elements thereof or of the accessways to the Premises or
the "Project," as that term is defined in Section 1.1.2, below. Except as
specifically set forth in this Lease, Tenant shall accept the Premises in its
presently existing, "as is" condition. Landlord shall not be obligated to
provide or pay for any improvement work or services related to the improvement
of the Premises; provided that, prior to the Lease Commencement Date, Landlord
shall change the interior wall adjacent to the reception area in the Premises to
a half-height wall at a height of between thirty-six inches (36") and forty-two
inches (42"), capped with a wood finish. Tenant also acknowledges that neither
Landlord nor any agent of Landlord has made any representation or warranty
regarding the condition of the Premises, the Building or the Project or with
respect to the suitability of any of the foregoing for the conduct of Tenant's
business, except as specifically set forth in this Lease. The taking of
possession of the Premises by Tenant shall conclusively establish that the
Premises and the Building were at such time in good and sanitary order,
condition and repair.
1.1.2 THE BUILDING AND THE PROJECT. The Premises are a part of the
----------------------------
building set forth in Section 2.1 of the Summary (the "BUILDING"). The Building
is part of an office project known as "CENTURY PLAZA TOWERS." The term "PROJECT"
as used in this Lease, shall mean (i) the Building and the Common Areas, (ii)
the land (which is improved with landscaping, subterranean parking facilities
and other improvements) upon which the Building and the Common Areas are
located, (iii) the other office building located adjacent to the Building and
the land upon which such adjacent office building is located, and (iv) at
Landlord's discretion, any additional real property, areas, land, buildings or
other improvements added thereto outside of the Project.
1.1.3 COMMON AREAS. Tenant shall have the non-exclusive right to use
------------
in common with other tenants in the Project, and subject to the rules and
regulations referred to in Article 5 of this Lease, those portions of the
Project which are provided, from time to time, for use in common by Landlord,
Tenant and any other tenants of the Project (such areas, together with such
other portions of the Project designated by Landlord, in its discretion,
including certain areas designated for the exclusive use of certain tenants, or
to be shared by Landlord and certain tenants, are collectively referred to
herein as the "COMMON AREAS"). The Common Areas shall consist of the "Project
Common Areas" and the "Building Common Areas." The term "PROJECT COMMON AREAS,"
as used in this Lease, shall mean the portion of the Project designated as such
by Landlord. The term "BUILDING COMMON AREAS," as used in this Lease, shall mean
the portions of the Common Areas located within the Building designated as such
by Landlord. The manner in which the Common Areas are maintained and operated
shall be at the sole discretion of Landlord, provided that Landlord shall
maintain and operate same in a manner consistent with that of other first-class,
high-rise office buildings in the Century City, California area (the "COMPARABLE
BUILDINGS") and the use thereof shall be subject to such rules, regulations and
restrictions as Landlord may make from time to time. Landlord reserves the right
to close temporarily, make alterations or additions to, or change the location
of elements of the Project and the Common Areas.
-3-
1.2 VERIFICATION OF RENTABLE SQUARE FEET AND USABLE SQUARE FEET OF
---------------------------------------------------------------
PREMISES, BUILDING, AND PROJECT. For purposes of this Lease, "RENTABLE SQUARE
- -------------------------------
FEET" and "USABLE SQUARE FEET" shall be calculated pursuant to "BOMA," as that
term is defined in Section 4.2.9, below, provided that the rentable square
footage of the Building and Project shall include all of (and the rentable
square footage of the Premises therefore shall include a portion of) the
Building Common Areas, and provided further that notwithstanding anything to the
contrary set forth in this Section 1.2, the rentable square footage of the
Premises as measured pursuant to the above provisions of this Section 1:2 shall
be equal to the product of (A) the usable square footage of the Premises
measured strictly pursuant to BOMA and (B) 1,1573. In the event that the
rentable area of the Premises, the Building and/or the Project shall hereafter
change due to subsequent alterations and/or other modifications to the Premises,
the Building and/or the Project, the rentable area of the Premises, the Building
and/or the Project, as the case may be, shall be appropriately adjusted as of
the date of such alteration and/or other modification, based upon the written
verification by Landlord's space planner of such revised rentable area. In the
event of any such adjustment to the rentable area of the Premises, the Building
and/or the Project, all amounts, percentages and figures appearing or referred
to in this Lease based upon such rentable area (including, without limitation,
the amount of the "Rent" and any "Security Deposit," as those terms are defined
in Article 4 and Article 21 of this Lease, respectively) shall be modified in
accordance with such determination.
ARTICLE 2
---------
LEASE TERM
----------
The terms provisions of this Lease shall be effective as of the date of
this Lease. The term of this Lease (the "LEASE TERM") shall be as set forth in
Section 3.1 of the Summary, shall commence on the date set forth in Section 3.2
of the Summary (the "LEASE COMMENCEMENT DATE"), and shall terminate on the date
set forth in Section 3.3 of the Summary (the "LEASE EXPIRATION DATE") unless
this Lease is sooner terminated as hereinafter provided. For purposes of this
Lease, the term "LEASE YEAR" shall mean each consecutive twelve (12) month
period during the Lease Term. At any time during the Lease Term, Landlord may
deliver to Tenant a notice in the form as set forth in EXHIBIT C attached
---------
hereto, as a confirmation only of the information set forth therein, which
Tenant shall execute and return to Landlord within five (5) days of receipt
thereof.
ARTICLE 3
---------
BASE RENT
---------
Tenant shall pay, without prior notice or demand, to Landlord or Landlord's
agent at the management office of the Project, or, at Landlords option, at such
other place as Landlord may from time to time designate in writing, by a check
for currency which, at the time of payment, is legal tender for private or
public debts in the United States of America, base rent ("Base Rent") as set
forth in Section 4 of the Summary, payable in equal monthly installments as set
forth in Section 4 of the Summary in advance on or before the first day of each
and every calendar month during the Lease Term, without any setoff or deduction
whatsoever. The Base Rent for the first full month of the Lease Term which
occurs after the expiration of any free rent period shall be paid at the time of
Tenant's execution of this Lease. If any Rent payment date (including the Lease
Commencement Date) falls on a day of the month other than the first day of such
month or if any payment of Rent is for a period which is shorter than one month,
the Rent for any fractional month shall accrue on a daily basis for the period
from the date such payment is due to the end of such calendar month or to the
end of the Lease Term at a rate per day which is equal to 1/365 of the
applicable annual Rent. All other payments or adjustments required to be made
under the terms of this Lease that require proration on a time basis shall be
prorated on the basis.
ARTICLE 4
---------
ADDITIONAL RENT
---------------
4.1 GENERAL TERMS. In addition to paying the Base Rent specified in
-------------
Article 3 of this Lease, Tenant shall pay "Tenant's Share" of the annual
"Building Direct Expenses," as those terms
-4-
are defined in Sections 4.2.9 and 4.2.2 of this Lease, respectively, which are
in excess of the amount of Building Direct Expenses applicable to the "BASE
YEAR," as that term is defined in Section 4.2.1, below, provided, however, that
in no event shall any decrease in Building Direct Expenses for any "EXPENSE
YEAR," as that term is defined in Section 4.2.6 below, below Building Direct
Expenses for the Base Year entitle Tenant to any decrease in Base Rent or any
Credit against sums due under this Lease. Such payments by Tenant, together with
any and all other amounts payable by Tenant to Landlord pursuant to the terms of
this Lease, are hereinafter collectively referred to as the "ADDITIONAL RENT",
and the Base Rent and the Additional Rent are herein collectively referred to as
"RENT." All amounts due under this Article 4 as Additional Rent shall be payable
for the same periods and in the same manner as the Base Rent. Without limitation
on other obligations of Tenant which survive the expiration of the Lease Term,
the obligations of Tenant to pay the Additional Rent provided for in this
Article 4 shall survive the expiration of the Lease Term.
4.2 DEFINITIONS OF KEY TERMS RELATING TO ADDITIONAL RENT. As used in this
----------------------------------------------------
Article 4, the following terms shall have the meanings hereinafter set forth:
4.2.1 "BASE YEAR" shall mean the period set forth in Section 5 of the
Summary.
4.2.2 "BUILDING DIRECT EXPENSES" shall mean "Building Operating
Expenses" and "Building Tax Expenses", as those terms are defined in Sections
4.2.3 and 4.2.4, below, respectively.
4.2.3 "BUILDING OPERATING EXPENSES" shall mean the portion of
"Operating Expenses," as that term is defined in Section 4.2.7 below, allocated
to the tenants of the Building pursuant to the terms of Section 4.3.1 below.
4.2.4 "BUILDING TAX EXPENSES" shall mean that portion of "Tax
Expenses", as that term is defined in Section 4.2.8 below, allocated to the
tenants of the Building pursuant to the terms of Section 4.3.1 below.
4.2.5 "DIRECT EXPENSES" shall mean "Operating Expenses" and "Tax
Expenses."
4.2.6 "EXPENSE YEAR" shall mean each calendar year in which any
portion of the Lease Term falls, through and including the calendar year in
which the Lease Term expires, provided that Landlord, upon notice to Tenant, may
change the Expense Year from time to time to any other twelve (12) consecutive
month period, and, in the event of any such change, Tenant's Share of Building
Direct Expenses shall be equitably adjusted for any Expense Year involved in any
such change.
4.2.7 "OPERATING EXPENSES" shall mean all expenses, costs and amounts
of every kind and nature which Landlord pays during any Expense Year because of
or in connection with the ownership, management, maintenance, repair,
replacement, restoration or operation of the Project, or any portion thereof.
Without limiting the generality of the foregoing, Operating Expenses shall
specifically include any and all of the following: (i) the cost of supplying all
utilities, the cost of operating, repairing and renovating the utility,
telephone, mechanical, sanitary, storm drainage, and elevator systems, and the
cost of maintenance and service contracts in connection therewith; (ii) the cost
of licenses, certificates, permits and inspections and the cost of contesting
any governmental enactments which may affect Operating Expenses, and the costs
incurred in connection with a governmentally mandated transportation system
management program or similar program; (iii) the cost of all insurance carried
by Landlord in connection with the Project as reasonably determined by Landlord;
(iv) the cost of landscaping, relamping, and all supplies, tools, equipment and
materials used in the operation, repair and maintenance of the Project, or any
portion thereof; (v) the cost of parking area repair, restoration, and
maintenance; (vi) fees and other costs, including reasonable management fees,
consulting fees, legal fees and accounting fees, of all contractors and
consultants in connection with the management, operation, maintenance and repair
of the Project; (vii)payments under any equipment rental agreements and the fair
rental value of any management office space; (viii) subject to item (T), below,
wages, salaries and other compensation and benefits, including taxes levied
thereon, of all persons engaged in the operation, maintenance and security of
the Project; (ix) costs under any instrument pertaining to the sharing of costs
by the Project; (x) operation, repair, maintenance and
-5-
replacement of all systems and equipment and components thereof of the Project;
(xi) the cost of janitorial, alarm, security and other services, replacement of
wall and floor coverings, ceiling tiles and fixtures in common areas,
maintenance and replacement of curbs and walkways, repair to roofs and re-
roofing, (xii) amortization (including interest on the unamortized cost) over
the useful life as Landlord shall reasonably determine, of the cost of acquiring
or the rental expense of personal property used in the maintenance, operation
and repair of the Project, or any portion thereof, (xiii) the cost of capital
improvements or other costs incurred in connection with the Project (A) which
are intended to effect economies in the operation or maintenance of the Project,
or any portion thereof, (B) that are required to comply with present or
anticipated conservation programs, (C) which are replacements or modifications
of nonstructural items located in the Common Areas required to keep the Common
Areas in good order or condition, or (D) that are required under any
governmental law or regulation by a federal, state or local governmental agency,
except for capital repairs, replacements or other improvements to remedy a
condition existing as of the Lease Commencement Date which an applicable
governmental authority, if it had knowledge of such condition as of the Lease
Commencement Date, would have then required to be remedied pursuant to the then-
current governmental laws or regulations in their form existing as of the Lease
Commencement Date; provided, however, that any capital expenditure shall be
amortized (including interest on the amortized cost) over its useful life as
Landlord shall reasonably determine; and (xiv) costs, fees, charges or
assessments imposed by, or resulting from any mandate imposed on Landlord by,
any federal, state or local government for fire and police protection, trash
removal, community services, or other services which do not constitute "Tax
Expenses" as that term is defined in Section 4.2.8, below. Notwithstanding the
foregoing, for purposes of this Lease, Operating Expenses shall not, however
include:
(A) costs of repairs or other work occasioned by fire, windstorm or
other casualty (other than those amounts within the deductible limits of
insurance policies actually carried by Landlord);
(B) except as otherwise specifically provided in this Section 4.2.7,
costs incurred by Landlord in the repairs, capital additions, alterations or
replacements made or incurred to rectify or correct defects in design, materials
or workmanship in connection with any portion of the Project;
(C) costs (including permit, license and inspection costs) incurred in
renovating or otherwise improving, decorating or redecorating rentable space for
other tenants or vacant rentable space;
(D) cost of utilities or services sold to Tenant or others for which
Landlord is entitled to and actually receives reimbursement (other than through
any operating cost reimbursement provision identical or substantially similar to
the provisions set forth in this Lease);
(E) except as otherwise specifically provided in this Section 4.2.7,
costs incurred by Landlord for alterations to the Project which are considered
capital improvements and replacements under generally accepted accounting
principles, consistently applied;
(F) costs of depreciation and amortization, except on materials, small
tools and supplies purchased by Landlord to enable Landlord to supply services
Landlord might otherwise contract for with a third party, where such
depreciation and amortization would otherwise have been included in the charge
for such third party services, all as determined in accordance with generally
accepted accounting principles, consistently applied;
(G) costs of services or other benefits which are not available to
Tenant but which are provided to other tenants of the Project.
(H) costs incurred due to the violation by Landlord or any other
tenant of the terms and conditions of any lease of space in the Project;
(I) costs of overhead or profit increment paid to Landlord or to
subsidiaries or affiliates of Landlord for services in or in connection with the
Project to the extent the same exceeds the cost of such services which could be
obtained from third parties on a competitive basis;
-6-
(J) except as otherwise specifically provided in this Section
4.2.7, costs of interest on debt or amortization on any mortgages, and rent and
other charges, costs and expenses payable under any mortgage, if any;
(K) costs of general overhead and general administrative
expenses, not including management fees and building office expenses which are
included in operating expenses by landlords of other Comparable Buildings;
(L) costs of any compensation and employee benefits paid to
clerks, attendants or other persons in a commercial concession operated by
Landlord, except the Project parking facility;
(M) costs of rentals and other related expenses incurred in
leasing heat, ventilation, and air-conditioning, elevators or other equipment
ordinarily considered to be of a capital nature, except equipment which is used
in providing janitorial or similar services and which is not affixed to the
Project;
(N) costs of advertising and promotion;
(O) costs of electrical power for which Tenant directly contracts
with and pays a local public service company;
(P) costs incurred to comply with laws relating to the removal of
any hazardous material (as defined under applicable law) which was in existence
in the Building or on the Project prior to the Lease Commencement Date, and was
of such a nature that a federal, state or municipal governmental authority, if
it had then had knowledge of the presence of such hazardous material, in the
state, and under the conditions that it then existed in the Building or on the
Project, would have then required the removal of such hazardous material or
other remedial or containment action with respect thereto; and costs incurred to
remove, remedy, contain, or treat any hazardous material, which hazardous
material is brought into the Building or onto the Project after the date hereof
by Landlord or any other tenant of the Project and is of such a nature, at that
time, that a federal, state or municipal governmental authority, if it had then
had knowledge of the presence of such hazardous material, in the state, and
under the conditions, that it then exists in the Building or on the Project,
would have then required the removal of such hazardous material or other
remedial or containment action with respect thereto;
(Q) costs incurred in connection with the abatement or
encapsulation of asbestos in the Project;
(R) marketing costs, including leasing commissions, attorneys'
fees in connection with the negotiation and preparation of letters, deal memos,
letters of intent, leases, subleases and/or assignments, space planning costs,
and other costs and expenses incurred in connection with lease, sublease and/or
assignment negotiations and transactions with present or prospective tenants or
other occupants of the Project, including attorneys' fees and other costs and
expenditures incurred in connection with disputes with present or prospective
tenants or other occupants of the Project;
(S) the cost or providing any service directly to and paid
directly by any tenant; and
(T) the wages and benefits of any employee who does not devote
substantially all of his or her employed time to the Project unless such wages
and benefits are prorated to reflect time spent on operating and managing the
Project vis-a-vis time spent on matters unrelated to operating and managing the
Project.
If Landlord is not furnishing any particular work or service (the cost of
which, if performed by Landlord, would be included in Operating Expenses) to a
tenant who has undertaken to perform such work or service in lieu of the
performance thereof by Landlord, Operating Expenses shall be deemed to be
increased by an amount equal to the additional Operating Expenses which would
reasonably have been incurred during such period by Landlord if it had at its
own expense furnished such work or service to such tenant. If the Project is not
at lease ninety-five percent (95%) occupied during all or a portion of the Base
Year or any Expense
-7-
Year, Landlord shall make an appropriate adjustment to the components of
Operating Expenses for such year to determine the amount of Operating Expenses
that would have been paid had the Project been ninety-five percent (95%)
occupied, and the amount so determined shall be deemed to have been the amount
of Operating Expenses for such year. Operating Expenses for the Base Year shall
not include market-wide labor-rate increases due to extraordinary circumstances,
including, but not limited to, boycotts and strikes, and utility rate increases
due to extraordinary circumstances including, but not limited to, conservation
surcharges, boycotts, embargoes or other shortages, or amortized costs relating
to capital improvements.
4.2.8 TAXES.
-----
4.2.8.1 "TAX EXPENSES" shall mean all federal, state,
county, or local governmental or municipal taxes, fees, charges or other
impositions of every kind and nature, whether general, special, ordinary or
extraordinary, (including, without limitation, real estate taxes, general and
special assessments, transit taxes, leasehold taxes or taxes based upon the
receipt of rent, including gross receipts or sales taxes applicable to the
receipt of rent, unless required to be paid by Tenant, personal property taxes
imposed upon the fixtures, machinery, equipment, apparatus, systems and
equipment, appurtenances, furniture and other personal property used in
connection with the Project, or any portion thereof), which shall be paid during
any Expense Year (without regard to any different fiscal year used by such
governmental or municipal authority) because of or in connection with the
ownership, leasing and operation of the Project, or any portion thereof.
4.2.8.2 Tax Expenses shall include, without limitation:
(i) Any tax on the rent, right to rent or other income from the Project, or any
portion thereof, or as against the business of leasing the Project, or any
portion thereof; (ii) Any assessment, tax, fee, levy or charge in addition to,
or in substitution, partially or totally, of any assessment, tax, fee, levy or
charge previously included within the definition of real property tax, it being
acknowledged by Tenant and Landlord that Proposition 13 was adopted by the
voters of the State of California in the June 1978 election ("Proposition 13")
and that assessments taxes, fees, levies and charges may be imposed by
governmental agencies for such services as fire protection, street, sidewalk and
road maintenance, refuse removal and for other governmental services formerly
provided without charge to property owners or occupants, and, in further
recognition of the decrease in the level and quality of governmental services
and amenities as a result of Proposition 13, Tax Expenses shall also include any
governmental or private assessments or the Project's contribution towards a
governmental or private cost-sharing agreement for the purpose of augmenting or
improving the quality of services and amenities normally provided by
governmental agencies; (iii) Any assessment, tax, fee, levy, or charge allocable
to or measured by the area of the Premises or the Rent payable hereunder,
including without limitation, any business or gross income tax or excise tax
with respect to the receipt of such rent, or upon or with respect to the
possession, leasing, operating, management, maintenance, alteration, repair, use
or occupancy by Tenant of the Premises, or any portion thereof, (iv) Any
assessment, tax, fee, levy or charge, upon this transaction or any document to
which Tenant is a party, creating or transferring an interest or an estate in
the Premises; and (v) All of the real estate taxes and assessments imposed upon
or with respect to the Building and all of the real estate taxes and assessments
imposed on the land and improvements of Lots 8 and 14, Tract 26196 as recorded
in Book 684, page 84; and the tunnel and ramp providing egress from such Lot 8
to Century Park East and which is situated partly under Olympic Boulevard and
partly on Lot 9 of such Tract 26196, except that there shall be deducted from
all of such taxes and assessments any taxes and assessments attributable to the
portion of such Lot 8 initially leased to American Broadcasting Companies, Inc.
4.2.8.3 Any costs and expenses (including, without,
limitation, reasonable attorneys' fees) incurred in attempting to protest,
reduce or minimize Tax Expenses shall be included in Tax Expenses in the Expense
Year such expenses are paid. Tax refunds shall be credited against Tax Expenses
and refunded to Tenant regardless of when received, based on the Expense Year to
which the refund is applicable, provided that in no event shall the amount to
be refunded to Tenant for any such Expense Year exceed the total amount paid by
Tenant as Additional Rent under this Article 4 for such Expense Year. If Tax
---------
Expenses for any period during the Lease Term or any extension thereof are
increased after payment thereof for any reason, including, without limitation,
error or reassessment by applicable governmental or municipal authorities,
Tenant shall pay Landlord upon demand Tenant's Share of any such
-8-
increased Tax Expenses included by Landlord as Building Tax Expenses pursuant to
the terms of this Lease. Notwithstanding anything to the contrary contained in
this Section 4.2.8 (except as set forth in Section 4.2.8.1, above), there shall
be excluded from Tax Expenses (i) all excess profits taxes, franchise taxes,
gift taxes, capital stock taxes, inheritance and succession taxes, estate taxes,
federal and state income taxes, and other taxes to the extent applicable to
Landlord's general or net income (as opposed to rents, receipts or income
attributable to operations at the Project), (ii) any items included as Operating
Expenses, and (iii) any items paid by Tenant under Section 4.5 of this Lease.
4.2.8.4 If in any Expense Year subsequent to the Base Year (the
"ADJUSTMENT YEAR"), the amount of Tax Expenses decreases below the amount of Tax
Expenses for the Base Year as a result of a Proposition 8 reduction, then for
purposes of all subsequent Expense Years, including the Expense Year in which
such decrease in Tax Expenses occurs, the Building Direct Expenses for the Base
Year shall be decreased by an amount equal to such decrease in Tax Expenses in
the Adjustment Year. Conversely, if the Tax Expenses thereafter are decreased by
a lesser amount during any comparison year subsequent to the Adjustment Year
(the "READJUSTMENT YEAR") as a result of Landlord's failure to secure a
Proposition 8 reduction which is greater than or equal to the Proposition 8
reduction secured during the Adjustment Year, then for purposes of all
subsequent comparison years, including the comparison year in which such lesser
decrease in Tax Expenses occurs, the Building Direct Expenses for the Base Year
shall only be decreased by an amount equal to the decrease in Tax Expenses
during such Readjustment Year which resulted from Landlord's failure to secure a
Proposition 8 reduction greater than or equal to the Proposition 8 reduction
secured during the Adjustment Year; provided that any costs and expenses
incurred by Landlord in securing any Proposition 8 reduction shall not be
included in Building Direct Expenses for purposes of this Lease. Landlord and
Tenant acknowledge that this Section 4.2.8.4 is not intended to in any way
affect (A) the inclusion in Tax Expenses of the statutory two percent (2.0%)
annual increase in Tax Expenses (as such statutory increase may be modified by
subsequent legislation), or (B) the inclusion or exclusion of Tax Expenses
pursuant to the terms of Proposition 13, which shall be governed pursuant to the
terms of Sections 4.2.8.1 through 4.2.8.3, above.
4.2.9 "TENANT'S SHARE" shall mean the percentage set forth in
Section 6 of the Summary. Tenant's Share was calculated by multiplying the
number of usable square feet of the Premises, as set forth in Section 2.2 of
the Summary, by 100, and dividing the product by the 971,847 usable square feet
in the Building. The usable square feet in the Premises and Building is
measured pursuant to the Standard Method for Measuring Floor Area in Office
Buildings, ANSI Z65.1 - 1980 ("BOMA"), provided that the rentable square footage
of the Building shall include all of, and the rentable square footage of the
Premises thereof shall include a portion of, the square footage of the ground
floor common areas located within the Building and the common area and occupied
space of the portion of the Building or Project, dedicated to the service of the
Building. In the event either the usable square feet of the Premises and/or the
total usable square feet of the Building is remeasured, Tenant's Share shall be
appropriately adjusted, and, as to the Expense Year in which such change occurs,
Tenant's Share for such Expense Year shall be determined on the basis of the
number of days during such Expense Year that each such Tenant's Share was in
effect. Landlord shall have the option to modify the method of calculation of
Tenant's Share to a calculation based on the rentable square feet of the
Premises and Building, so long as the Tenant's Share hereunder is not increased
thereby.
4.3 ALLOCATION OF DIRECT EXPENSES.
-----------------------------
4.3.1 METHOD OF ALLOCATION. The parties acknowledge that the
--------------------
Building is a part of a multi-building project and that the costs and expenses
incurred in connection with the Project (i.e, the Direct Expenses) should be
---
shared between the tenants of the Building and the tenants of the other
buildings in the Project. Accordingly, as set forth in Section 4.2 above, Direct
Expenses (which consists of Operating Expenses and Tax Expenses) are determined
annually for the Project as a whole, and a portion of the Direct Expenses, which
portion shall be determined by Landlord on an equitable basis, shall be
allocated to the tenants of the Building (as opposed to the tenants of any other
buildings in the Project) and such portion shall be the Building Direct Expenses
for purposes of this Lease. Such portion of Direct Expenses allocated to the
tenants of the Building shall include all Direct Expenses attributable solely to
the Building and an equitable portion of the Direct Expenses attributable to the
Project as a whole.
-9-
4.3.2 COST POOLS. Landlord shall have the right, from time to
----------
time, to equitably allocate some or all of the Direct Expenses for the Project
among different portions or occupants of the Project (the "COST POOLS"), in
Landlord's reasonable discretion. Such Cost Pools may include, but shall not be
limited to, the office space tenants of a building of the Project or of the
Project, and the retail space tenants of a building of the Project or of the
Project. The Direct Expenses within each such Cost Pool shall be allocated and
charged to the tenants within such Cost Pool in an equitable manner.
4.4 CALCULATION AND PAYMENT OF ADDITIONAL RENT. If for any Expense
------------------------------------------
Year ending or commencing within the Lease Term, Tenant's Share of Building
Direct Expenses for such Expense Year exceeds Tenant's Share of Building Direct
Expenses applicable to the Base Year, then Tenant shall pay to Landlord, in the
manner set forth in Section 4.4.1, below, and as Additional Rent, an amount
equal to the excess (the "EXCESS").
4.4.1 STATEMENT OF ACTUAL BUILDING DIRECT EXPENSES AND
-----------------------------------------------
PAYMENT BY TENANT. Landlord shall endeavor to give to Tenant following the end
- -----------------
of each Expense Year, a statement (the "STATEMENT") which shall state the
Building Direct Expenses incurred or accrued for such preceding Expense Year,
and which shall indicate the amount of the Excess. Upon receipt of the Statement
for each Expense Year commencing or ending during the Lease Term, if any Excess
is present, Tenant shall pay, with its next installment of Base Rent due, the
full amount of the Excess for such Expense Year, less the amounts, if any, paid
during such Expense Year as "Estimated Excess," as that term is defined in
Section 4.4.2, below, and if Tenant paid more as Estimated Excess than the
actual Excess, Tenant shall receive a credit in the amount of Tenant's
overpayment against Rent next due under this Lease. The failure of Landlord to
timely furnish the Statement for any Expense Year shall not prejudice Landlord
or Tenant from enforcing its rights under this Article 4. Even though the Lease
Term has expired and Tenant has vacated the Premises, when the final
determination is made of Tenant's Share of Building Direct Expenses for the
Expense Year in which this Lease terminates, if an Excess if present, Tenant
shall immediately pay to landlord such amount, and if Tenant paid more as
Estimated Excess than the actual Excess, Landlord shall, within thirty (30)
days, deliver a check payable to Tenant in the amount of the overpayment. The
provisions of this Section 4.4.1 shall survive the expiration or earlier
termination of the Lease Term.
4.4.2 STATEMENT OF ESTIMATED BUILDING DIRECT EXPENSES. In
-----------------------------------------------
addition, Landlord shall endeavor to give Tenant a yearly expense estimate
statement (the "ESTIMATE STATEMENT") which shall set forth Landlord's reasonable
estimate (the "ESTIMATE") of what the total amount of Building Direct Expenses
for the then-current Expense Year shall be and the estimated excess (the
"ESTIMATED EXCESS") as calculated by comparing the Building Direct Expenses for
such Expense Year, which shall be based upon the Estimate, to the amount of
Building Direct Expenses for the Base Year. The failure of Landlord to timely
furnish the Estimate Statement for any Expense Year shall not preclude Landlord
from enforcing its rights to collect any Estimated Excess under this Article 4,
nor shall Landlord be prohibited from revising any Estimate Statement or
Estimated Excess theretofore delivered to the extent necessary. Thereafter,
Tenant shall pay, with its next installment of Base Rent due, a fraction of the
Estimated Excess for the then-current Expense Year (reduced by any amounts paid
pursuant to the next to last sentence of this Section 4.4.2). Such fraction
shall have as its numerator the number of months which have elapsed in such
current Expense Year, including the month of such payment, and twelve (12) as
its denominator. Until a new Estimate Statement is furnished (which Landlord
shall have the right to deliver to Tenant at any time), Tenant shall pay
monthly, with the monthly Base Rent installments, an amount equal to one-twelfth
(1/12) of the total Estimated Excess set forth in the previous Estimate
Statement delivered by Landlord to Tenant. Landlord shall maintain books and
records with respect to Building Direct Expenses in accordance with generally
accepted accounting and management practices, consistently applied.
4.5 TAXES AND OTHER CHARGES FOR WHICH TENANT IS DIRECTLY RESPONSIBLE.
----------------------------------------------------------------
4.5.1 Tenant shall be liable for and shall pay ten (10) days
before delinquency, taxes levied against Tenant's equipment, furniture, fixtures
and any other personal property located in or about the Premises. If any such
taxes on Tenant's equipment, furniture, fixtures and any other personal property
are levied against Landlord or Landlord's property or if the assessed value of
Landlord's property is increased by the inclusion therein of a value placed upon
such
-10-
equipment, furniture, fixtures or any other personal property and if landlord
pays the taxes based upon such increased assessment, which Landlord shall have
the right to do regardless of the validity thereof but only under proper protest
if requested by Tenant, Tenant shall upon demand repay to Landlord the taxes so
levied against Landlord or the proportion of such taxes resulting from such
increase in the assessment, as the case may be.
4.5.2 If the tenant improvements in the Premises, whether
installed and/or paid for by Landlord or Tenant and whether or not affixed to
the real property so as to become a part thereof, are assessed for real property
tax purposes at a valuation higher than the valuation at which tenant
improvements conforming to Landlord's "building standard" in other space in the
Building are assessed, then the Tax Expenses levied against Landlord or the
property by reason of such excess assessed valuation shall be deemed to be taxes
levied against personal property of Tenant and shall be governed by the
provisions of Section 4.5.1, above.
4.5.3 Notwithstanding any contrary provision herein, Tenant
shall pay prior to delinquency any (i) rent tax or sales tax, transfer tax or
value added tax, or any other applicable tax on the rent or services herein or
otherwise respecting this Lease, (ii) taxes assessed upon or with respect to
the possession, leasing, operation, management, maintenance, alteration, repair,
use or occupancy by Tenant of the Premises or any portion of the Project,
including the Project parking facility; or (iii) taxes assessed upon this
transaction or any document to which Tenant is a party creating or transferring
an interest or an estate in the Premises.
ARTICLE 5
---------
USE OF PREMISES
---------------
5.1 PERMITTED USE. Tenant shall use the Premises solely for the
-------------
Permitted Use set forth in Section 7 of the Summary and Tenant shall not use or
permit the Premises or the Project to be used for any other purpose or purposes
whatsoever without the prior written consent of Landlord, which may be withheld
in Landlord's sole discretion.
5.2 PROHIBITED USES. Tenant further covenants and agrees that Tenant
---------------
shall not use, or suffer or permit any person or persons to use, the Premises or
any part thereof for any use or purpose contrary to the provisions of the Rules
and Regulations set forth in EXHIBIT D, attached hereto, or in violation of the
---------
laws of the United States of America, the State of California, or the
ordinances, regulations or requirements of the local municipal or county
governing body or other lawful authorities having jurisdiction over the Project)
including, without limitation, any such laws, ordinances, regulations or
requirements relating to hazardous materials or substances, as those terms are
defined by applicable laws now or hereafter in effect. Tenant shall not do or
permit anything to be done in or about the Premises which will in any way damage
the reputation of the Project or obstruct or interfere with the rights of other
tenants or occupants of the Building, or injure or annoy them or use or allow
the Premises to be used for any improper, unlawful or objectionable purpose, nor
shall Tenant cause, maintain or permit any nuisance in, on or about the
Premises. Tenant shall comply with all recorded covenants, conditions, and
restrictions now or hereafter affecting the Project.
ARTICLE 6
---------
SERVICES AND UTILITIES
----------------------
6.1 STANDARD TENANT SERVICES. Landlord shall provide the following
------------------------
services on all days (unless otherwise stated below) during the Lease Term.
6.1.1 Subject to limitations imposed by all governmental
rules, regulations and guidelines applicable thereto, Landlord shall provide
heating and air conditioning ("HVAC") P.M. Monday through Friday, and on
Saturdays from 8:00 A.M. to 1:00 P.M. (collectively, the "BUILDING HOURS"),
except for the date of observation of New Year's Day, Independence Day, Labor
Day, Memorial Day, Thanksgiving Day, Christmas Day and, at Landlord's
discretion, other locally or nationally recognized holidays which are observed
by other Comparable Buildings (collectively, the "HOLIDAYS").
-11-
6.1.2 Landlord shall provide adequate electrical wiring and
facilities for connection to Tenant's lighting fixtures and incidental use
equipment, provided that (i) the connected electrical load of the incidental use
equipment does not exceed an average of three (3) watts per usable square foot
of the Premises during the Building Hours on a monthly basis, and the
electricity so furnished for incidental use equipment will be at a nominal one
hundred twenty (120) volts and no electrical circuit for the supply of such
incidental use equipment will require a current capacity exceeding twenty (20)
amperes, and (ii) the connected electrical load of Tenant's lighting fixtures
does not exceed an average of one (1) watt per usable foot of the Premises
during the Building Hours on a monthly basis, and the electricity so furnished
for Tenant's lighting will be at a nominal one hundred twenty (120) volts,
which electrical usage shall be subject to applicable laws and regulations,
including Title 24. Tenant shall bear the cost of replacement of lamps, starters
and ballasts for non-Building standard lighting fixtures within the Premises.
6.1.3 Landlord shall provide city water from the regular Building
outlets for drinking, lavatory and toilet purposes in the Building Common Areas.
6.1.4 Landlord shall provide janitorial services to the Premises,
except the date of observation of the Holidays, in and about the Premises and
window washing services in a manner consistent with other comparable buildings
in the vicinity of the Building,
6.1.5 Landlord shall provide nonexclusive, non-attended automatic
passenger elevator service during the Building Hours, shall have one
elevator available at all other times, including on the Holidays, and shall
provide nonexclusive, non-attended automatic passenger escalator service during
Building Hours only.
6.1.6 Landlord shall provide nonexclusive freight elevator service
subject to scheduling by Landlord.
Tenant shall cooperate fully with the Landlord at all times and abide by
all regulations and requirements that Landlord may reasonably prescribe for the
proper functioning and protection of the HVAC, electrical, mechanical and
plumbing systems.
6.2 OVERSTANDARD TENANT USE. Tenant shall not, without Landlord's prior
-----------------------
written consent, use heat-generating machines, machines other than normal
fractional horsepower office machines, or equipment or lighting other than
Building standard lights in the Premises, which may affect the temperature
otherwise maintained by the air conditioning system or increase the water
normally furnished for the Premises by Landlord pursuant to the terms of Section
6.1 of this Lease. If Tenant uses water, electricity, heat or air conditioning
in excess of that supplied by Landlord pursuant to Section 6.1 of this Lease,
Tenant shall pay to Landlord, upon billing, the actual cost of such excess
consumption, the cost of the installation, operation, and maintenance of
equipment which is installed in order to supply such excess consumption, and the
cost of the increased wear and tear on existing equipment caused by such excess
consumption; and Landlord may install devices to separately meter any increased
use in such event Tenant shall pay the increased cost directly to Landlord, on
demand, at the rates charged by the public utility company furnishing the same,
including the actual cost of such additional metering devices. Tenant's use of
electricity shall never exceed the capacity of the feeders to the Project or the
risers or wiring installation, and subject to the terms of Section 29.32, below,
Tenant shall not install or use or permit the installation or use of any
computer or electronic data processing equipment in the Premises, without the
prior written consent of Landlord. If Tenant desires to use heat, ventilation or
air conditioning during hours other than those for which Landlord is obligated
to supply such utilities pursuant to the terms of Section 6.1 of this Lease,
Tenant shall give Landlord such prior notice, if any, as Landlord shall from
time to time establish as appropriate, of Tenant's desired use in order to
supply such utilities, and Landlord shall supply such utilities to Tenant at
such hourly cost to Tenant (which shall be treated as Additional Rent) as
Landlord shall from time to time establish.
6.3 INTERRUPTION OF USE. Tenant agrees that Landlord shall not be liable
-------------------
for damages, by abatement of Rent or otherwise, for failure to furnish or delay
in furnishing any service (including telephone and telecommunication services),
or for any diminution in the quality or quantity thereof, when such failure or
delay or diminution is occasioned, in whole or in part, by
-12-
breakage repairs, replacements, or improvements, by any strike, lockout or other
labor trouble, by inability to secure electricity, gas, water, or other fuel at
the Building or Project after reasonable effort to do so, by any riot or other
dangerous conditions, emergency, accident or casualty whatsoever, by act or
default of Tenant or other parties, or by any other cause beyond Landlord's
reasonable control; and such failures or delays or diminution shall never be
deemed to constitute an eviction or disturbance of Tenant's use and possession
of the Premises or relieve Tenant from paying Rent or performing any of its
obligations under this Lease. Furthermore, Landlord shall not be liable under
any circumstances for a loss of, or injury to, property or for injury to, or
interference with, Tenant's business, including without limitation, loss of
profits, however occurring, through or in connection with or incidental to a
failure to finish any of the services or utilities as set forth in this Article
6.
6.4 RENT ABATEMENT. If Landlord fails to perform the obligations required
---------------
of Landlord under the terms of this Lease and such failure causes all or a
portion of the Premises to be untenantable and unusable by Tenant and such
failure relates to the nonfunctioning of the heat, ventilation, and air
conditioning system in the Premises, the electricity in the Premises, the
nonfunctioning of the elevator service to the Premises, or a failure to provide
access to the Premises, Tenant shall give Landlord notice (the "INITIAL
NOTICE"), specifying such failure to perform by Landlord (the "LANDLORD
DEFAULT"). If Landlord has not cured such Landlord Default within five (5)
business days after the receipt of the Initial Notice (the "ELIGIBILITY
PERIOD"), Tenant may deliver an additional notice to Landlord (the "ADDITIONAL
NOTICE"), specifying such Landlord Default and Tenant's intention to abate the
payment of Rent under this Lease. If Landlord does not cure such Landlord
Default within five (5) business days of receipt of the Additional Notice,
Tenant may, upon written notice to Landlord, immediately abate Rent payable
under this Lease for that portion of the Premises rendered untenantable and not
used by Tenant, for the period beginning on the date five (5) business days
after the Initial Notice to the earlier of the date Landlord cures such Landlord
Default or the date Tenant recommences the use of such portion of the Premises.
Such right to abate Rent shall be Tenant's sole and exclusive remedy at law or
in equity for a Landlord Default. Except as provided in this Section 6.4,
nothing contained herein shall be interpreted to mean that Tenant is excused
from paying Rent due hereunder.
ARTICLE 7
---------
REPAIRS
-------
Tenant shall, at Tenant's own expense, keep the Premises, including all
improvements, fixtures and furnishings therein, and the floor or floors of the
Building on which the Premises are located, in good order, repair and condition
at all times during the Lease Term. In addition, Tenant shall, at Tenant's own
expense, but under the supervision and subject to the prior approval of
Landlord, and within any reasonable period of time specified by Landlord,
promptly and adequately repair all damage to the Premises and replace or repair
all damaged, broken, or worn fixtures and appurtenances, except for damage
caused by ordinary wear and tear or beyond the reasonable control of Tenant;
provided however, that, at Landlord's option, or if Tenant fails to make such
repairs, Landlord may, but need not, make such repairs and replacements, and
Tenant shall pay Landlord the cost thereof, including a percentage of the cost
thereof (to be uniformly established for the Building and/or the Project)
sufficient to reimburse Landlord for all overhead, general conditions, fees and
other costs or expenses arising from Landlord's involvement with such repairs
and replacements forthwith upon being billed for same. Notwithstanding the
foregoing, Landlord shall be responsible for repairs to the exterior walls,
foundation and roof of the Building, the structural portions of the floors of
the Building, and the systems and equipment of the Building, except to the
extent that such repairs are required due to the negligence or wilful misconduct
of Tenant; provided, however, that if such repairs are due the negligence or
wilful misconduct of Tenant, Landlord shall nevertheless make such repairs at
Tenant's expense, or, if covered by Landlord's insurance, Tenant shall only be
obligated to pay any deductible in connection therewith. Landlord may, but shall
not be required to, enter the Premises at all reasonable times to make such
repairs, alterations, improvements or additions to the Premises or to the
Project or to any equipment located in the Project as Landlord shall desire or
deem necessary or as Landlord may be required to do by governmental or quasi-
governmental authority or court order or decree. Tenant hereby waives any and
all rights under and benefits of
-13-
subsection 1 of Section 1932 and Section 1941 and 1942 of the California Civil
Code or under any similar law, statute, or ordinance now or hereafter in effect.
ARTICLE 8
---------
ADDITIONS AND ALTERATIONS
-------------------------
8.1 LANDLORD'S CONSENT TO ALTERATIONS. Tenant may not make any
---------------------------------
improvements, alterations, additions or changes to the Premises or any
mechanical, plumbing or HVAC facilities or systems pertaining to the Premises
(collectively, the "ALTERATIONS" ) without first procuring the prior written
consent of Landlord to such Alterations, which consent shall be requested by
Tenant not less than thirty (30) days prior to the commencement thereof, and
which consent shall not be unreasonably withheld by Landlord, provided it shall
be deemed reasonable for Landlord to withhold its consent to any Alteration
which adversely affects the structural portions or the systems or equipment of
the Building or is visible from the exterior of the Building. Notwithstanding
the foregoing, Tenant shall be permitted to make Alterations following ten (10)
business days notice to Landlord, but without Landlord's prior consent, to the
extent that such Alterations are decorative only (i.e., installation of
carpeting or painting of the Premises). The construction of the initial
improvements to the Premises shall be governed by the terms of this Article 8.
8.2 MANNER OF CONSTRUCTION. Landlord may impose, as a condition of its
----------------------
consent to any and all Alterations or repairs of the Premises or about the
Premises, such requirements as Landlord in its reasonable discretion may deem
desirable, including, but not limited to, the requirement that Tenant utilize
for such purposes only contractors, subcontractors, materials, mechanics and
materialmen selected by Tenant from a list provided and approved by Landlord,
the requirement that upon Landlord's request, Tenant shall, at Tenant's expense,
remove such Alterations upon the expiration or any early termination of the
Lease Term. Tenant shall construct such Alterations and perform such repairs in
a good and workmanlike manner, in conformance with any and all applicable
federal, state, county or municipal laws, rules and regulations and pursuant to
a valid building permit, issued by the City of Los Angeles, all in conformance
with Landlord's construction rules and regulations. In the event Tenant
performs any Alterations in the Premises which require or give rise to
governmentally required changes to the "Base Building," as that term is defined
below, then Landlord shall, at Tenant's expense, make such changes to the Base
Building. The "BASE BUILDING" shall include the structural portions of the
Building, and the public restrooms and the systems and equipment located in the
internal core of the Building on the floor or floors on which the Premises are
located. In performing the work of any such Alterations, Tenant shall have the
work performed in such manner so as not to obstruct the business of Landlord or
other tenants in the Project. Tenant shall not use (and upon notice from
Landlord shall cease using) contractors, services, workmen, labor, materials or
equipment that, in Landlord's reasonable judgement, would disturb labor harmony
with the workforce or trades engaged in performing other work, labor or services
in or about the Building or the Common Areas. In addition to Tenant's
obligations under Article 9 of this Lease, upon completion of any Alterations,
Tenant agrees to cause a Notice of Completion to be recorded in the office of
the Recorder of the County of Los Angeles in accordance with Section 3093 of the
Civil Code of the State of California or any successor statute, and Tenant shall
deliver to the Project management office a reproducible copy of the "as built"
drawings of the Alterations as well as all permits, approvals and other
documents issued by any governmental agency in connection with the Alterations.
8.3 PAYMENT FOR IMPROVEMENTS. If payment is made directly to contractors,
------------------------
Tenant shall comply with Landlord's requirements for final lien releases and
waivers in connection with Tenant's payment for work to contractors. If Tenant
orders any work directly from Landlord, Tenant shall pay to Landlord a
percentage of the cost of such work sufficient to compensate Landlord for all
overhead, general conditions, fees and other costs and expenses arising from
Landlord's involvement with such work. If Tenant does not order any work
directly from Landlord, Tenant shall reimburse Landlord for Landlord's
reasonable, actual, out-of-pocket costs and expenses actually incurred in
connection with Landlord's review of such work.
-14-
8.4 CONSTRUCTION INSURANCE. In addition to the requirements of Article 10
----------------------
of this Lease, in the event that Tenant makes any Alterations, prior to the
commencement of such Alterations, Tenant shall provide Landlord with evidence
that Tenant carries "Builder's All Risk" insurance in an amount approved by
Landlord covering the construction of such Alterations, and such other insurance
as Landlord may reasonably require, it being understood and agreed that all of
such Alterations shall be insured by Tenant pursuant to Article 10 of this Lease
immediately upon completion thereof. In addition, Landlord may, in its
discretion, require Tenant to obtain a lien and completion bond or some
alternate form of security satisfactory to Landlord in an amount sufficient to
ensure the lien-free completion of such Alterations and naming Landlord as a
co-obligee.
8.5 LANDLORD'S PROPERTY. All Alterations, improvements, fixtures,
-------------------
equipment and/or appurtenances which may be installed or placed in or about the
Premises, from time to time, shall be at the sole cost of Tenant and shall be
and become the property of Landlord, except that Tenant may remove any
Alterations, improvements, fixtures and/or equipment which Tenant can
substantiate to Landlord have not been paid for with any Tenant improvement
allowance funds provided to Tenant by Landlord, provided Tenant repairs any
damage to the Premises and Building caused by such removal and returns the
affected portion of the Premises to a building standard tenant improved
condition as determined by Landlord. Furthermore, if Landlord, as a condition to
Landlord's consent to any Alteration, requires that Tenant remove any Alteration
upon the expiration or early termination of the Lease Term, Landlord may, by
written notice to Tenant prior to the end of the Lease Term, or given following
any earlier termination of this Lease, require Tenant, at Tenant's expense, to
remove such Alterations and to repair any damage to the Premises and Building
caused by such removal and returns the affected portion of the Premises to a
building standard tenant improved condition as determined by Landlord. If Tenant
fails to complete such removal and/or to repair any damage caused by the removal
of any Alterations and returns the affected portion of the Premises to a
building standard tenant improved condition as reasonably determined by
Landlord, Landlord may do so and may charge the cost thereof to Tenant. Tenant
hereby protects, defends, indemnifies and holds Landlord harmless from any
liability, cost, obligation, expense or claim of lien in any manner relating to
the installation, placement, removal or financing of any such Alterations,
improvements, fixtures and/or equipment in, on or about the Premises, which
obligations of Tenant shall survive the expiration or earlier termination of
this Lease.
ARTICLE 9
---------
COVENANT AGAINST LIENS
----------------------
Tenant shall keep the Project and Premises free from any liens or
encumbrances arising out of the work performed, materials furnished or
obligations incurred by or on behalf of Tenant, and shall protect, defend,
indemnify and hold Landlord harmless from and against any claims, liabilities,
judgments or costs (including, without limitation, reasonable attorneys' fees
and costs) arising out of same or in connection therewith. Tenant shall give
Landlord notice at least twenty (20) days prior to the commencement of any such
work on the Premises (or such additional time as may be necessary under
applicable laws) to afford Landlord the opportunity of posting and recording
appropriate notices of non-responsibility. Tenant shall remove any such lien or
encumbrance by bond or otherwise within ten (10) business days after notice by
Landlord, and if Tenant shall fail to do so, Landlord may pay the amount
necessary to remove such lien or encumbrance, without being responsible for
investigating the validity thereof. The amount so paid shall be deemed
Additional Rent under this Lease payable upon demand, without limitation as to
other remedies available to Landlord under this Lease. Nothing contained in this
Lease shall authorize Tenant to do any act which shall subject Landlord's title
to the Building or Premises to any liens or encumbrances whether claimed by
operation of law or express or implied contract. Any claim to a lien or
encumbrance upon the Building or Premises arising in connection with any such
work or respecting the Premises not performed by or at the request of Landlord
shall be null and void, or at Landlord's option shall attach only against
Tenant's interest in the Premises and shall in all respects be subordinate to
Landlord's title to the Project, Building and Premises.
-15-
ARTICLE 10
----------
INSURANCE
---------
10.1 INDEMNIFICATION AND WAIVER. Tenant hereby assumes all risk of damage
--------------------------
to property or injury to persons in, upon or about the Premises from any cause
whatsoever and agrees that Landlord, its partners, subpartners and their
respective officers, agents, servants, employees, and independent contractors
(collectively, "LANDLORD PARTIES") shall not be liable for, and are hereby
released from any responsibility for, any damage either to person or property or
resulting from the loss of use thereof, which damage is sustained by Tenant or
by other persons claiming through Tenant. Tenant shall indemnify, defend,
protect, and hold harmless the Landlord Parties from any and all loss, cost,
damage, expense and liability (including without limitation court costs and
reasonable attorneys' fees) incurred in connection with or arising from any
cause in, on or about the Premises, any acts, omissions or negligence of Tenant
or of any person claiming by, through or under Tenant, or of the contractors,
agents, servants, employees, invitees, guests or licensees of Tenant or any such
person, in, on or about the Project or any breach of the terms of this Lease,
either prior to, during, or after the expiration of the Lease Term, provided
that the terms of the foregoing indemnity shall not apply to the negligence or
willful misconduct of Landlord. Should Landlord be named as a defendant in any
suit brought against Tenant in connection with or arising out of Tenant's
occupancy of the Premises, Tenant shall pay to Landlord its costs and expenses
incurred in such suit, including without limitation, its actual professional
fees such as reasonable appraisers', accountants' and attorneys' fees. Landlord
shall indemnify, defend, protect, and hold harmless Tenant, its partners, and
their respective officers, agents, servants, employees, and independent
contractors (collectively, "TENANT PARTIES") from any and all loss, cost,
damage, expense and liability (including without limitation reasonable
attorneys' fees) arising from the negligence or wilful misconduct of Landlord
in, on or about the Project, except to the extent caused by the negligence or
wilful misconduct of the Tenant Parties. Notwithstanding anything to the
contrary set forth in this Lease, either party's agreement to indemnify the
other party as set forth in this Section 10.1 shall be ineffective to the extent
the matters for which such party agreed to indemnify the other party are covered
by insurance required to be carried by the non-indemnifying party pursuant to
this Lease. Further, Tenant's agreement to indemnify Landlord and Landlord's
agreement to indemnify Tenant pursuant to this Section 10.1 are not intended to
and shall not relieve any insurance carrier of its obligations under policies
required to be carried pursuant to the provisions of this Lease, to the extent
such policies cover, or if carried, would have covered the matters, subject to
the parties' respective indemnification obligations; nor shall they supersede
any inconsistent agreement of the parties set forth in any other provision of
this Lease. The provisions of this Section 10.1 shall survive the expiration or
sooner termination of this Lease with respect to any claims or liability arising
in connection with any event occurring prior to such expiration or termination.
Notwithstanding anything to the contrary contained in this Lease, nothing in
this Lease shall impose any obligations on Tenant or Landlord to be responsible
or liable for, and each hereby releases the other from all liability for,
consequential damages other than those consequential damages incurred by
Landlord in connection with holdover of the Premises by Tenant after the
expiration or earlier termination of this Lease or incurred by Landlord in
connection with any repair, physical construction or improvement work performed
by or on behalf of Tenant in the Project.
10.2 TENANT'S COMPLIANCE WITH LANDLORD'S FIRE AND CASUALTY INSURANCE.
---------------------------------------------------------------
Tenant shall, at Tenant's expense, comply with all insurance company
requirements pertaining to the use of the Premises. If Tenant's conduct or use
of the Premises causes any increase in the premium for such insurance policies
then Tenant shall reimburse Landlord for any such increase. Tenant, at Tenant's
expense, shall comply with all rules, orders, regulations or requirements of the
American Insurance Association (formerly the National Board of Fire
Underwriters) and with any similar body.
10.3 TENANT'S INSURANCE. Tenant shall maintain the following coverages in
------------------
the following amounts.
10.3.1 Commercial General Liability Insurance covering the insured
against claims of bodily injury, personal injury and property damage (including
loss of use thereof) arising out of Tenant's operations, and contractual
liabilities (covering the performance by Tenant of its indemnity agreements)
including a Board Form endorsement covering the insuring provisions of
-16-
this Lease and the performance by Tenant of the indemnity agreements set forth
in Section 10.1 of this Lease, for limits of liability not less than:
Bodily Injury and $3,000,000 each occurrence
Property Damage Liability $3,000,000 annual aggregate
Personal Injury Liability $3,000,000 each occurrence
$3,000,000 annual aggregate
0% Insured's participation
10.3.2 Physical Damage Insurance covering (i) all office furniture,
business and trade fixtures, office equipment, free-standing cabinet work,
movable partitions, merchandise and all other items of Tenant's property on the
Premises installed by, for, or at the expense of Tenant, (ii) any improvements
which exist in the Premises as of the Lease Commencement Date (excluding the
Base Building) (the "ORIGINAL IMPROVEMENTS"), and (iii) all other improvements,
alterations and additions to the Premises. Such insurance shall be written on an
"all risks" of physical loss or damage basis, for the full replacement cost
value (subject to reasonable deductible amounts) new without deduction for
depreciation of the covered items and in amounts that meet any co-insurance
clauses of the policies of insurance and shall include coverage for damage or
other loss caused by fire or other peril including, but not limited to,
vandalism and malicious mischief, theft, water damage of any type, including
sprinkler leakage, bursting or stoppage of pipes, and explosion, and providing
business interruption coverage for a period of one year.
10.3.3 Worker's Compensation and Employer's Liability or other
similar insurance pursuant to all applicable state and local statutes and
regulations.
10.4 FORM OF POLICIES. The minimum limits of policies of insurance required
----------------
of Tenant under this Lease shall in no event limit the liability of Tenant under
this Lease. Such insurance shall (i) name Landlord, and any other party the
Landlord so specifies, as an additional insured, including Landlord's managing
agent, if any; (ii) specifically cover the liability assumed by Tenant under
this Lease, including, but not limited to, Tenant's obligations under Section
10.1 of this Lease; (iii) be issued by an insurance company having a rating of
not less than A-X in Best's Insurance Guide or which is otherwise acceptable to
Landlord and licensed to do business in the State of California; (iv) be primary
insurance as to all claims thereunder and provide that any insurance carried by
Landlord is excess and is non-contributing with any insurance requirement of
Tenant; (v) be in form and content reasonably acceptable to Landlord; and (vi)
provide that said insurance shall not be canceled or coverage changed unless
thirty (30) days' prior written notice shall have been given to Landlord and any
mortgagee of Landlord. Tenant shall deliver said policy or policies or
certificates thereof to Landlord on or before the Lease Commencement Date and at
least thirty (30) days before the expiration dates thereof. In the event Tenant
shall fail to procure such insurance, or to deliver such policies or
certificate, Landlord may, at its option, procure such policies for the account
of Tenant, and the cost thereof shall be paid to Landlord within five (5) days
after delivery to Tenant of bills therefor.
10.5 SUBROGATION. Landlord and Tenant intend that their respective property
-----------
loss risks shall be borne by reasonable insurance carriers to the extent above
provided, and Landlord and Tenant hereby agree to look solely to, and seek
recovery only from, their respective insurance carriers in the event of a
property loss to the extent that such coverage is agreed to be provided,
hereunder. The parties each hereby waive all rights and claims against each
other for such losses, and waive all rights of subrogation of their respective
insurers, provided such waiver of subrogation shall not affect the right to the
insured to recover thereunder. The parties agree that their respective insurance
policies are now, or shall be, endorsed such that the waiver of subrogation
shall not affect the right of the insured to recover thereunder, so long as no
material additional premium is charged therefor.
10.6 ADDITIONAL INSURANCE OBLIGATIONS. Tenant shall carry and maintain
--------------------------------
during the entire Lease Term, at Tenant's sole cost and expense, increased
amounts of the insurance required to be carried by Tenant pursuant to this
Article 10 and such other reasonable types of insurance coverage and in such
reasonable amounts covering the Premises and Tenant's operations therein, as may
be reasonably requested by Landlord, but in no event in excess of the amounts
and types of insurance then being required by landlords of other Comparable
Buildings.
-17-
ARTICLE 11
----------
DAMAGE AND DESTRUCTION
----------------------
11.1 REPAIR OF DAMAGE TO PREMISES BY LANDLORD. Tenant shall promptly
----------------------------------------
notify Landlord of any damage to the Premises resulting from fire or any other
casualty. If the Premises or any Common Areas serving or providing access to the
Premises shall be damaged by fire or other casualty, Landlord shall promptly and
diligently, subject to reasonable delays for insurance adjustment or other
matters beyond Landlord's reasonable control, and subject to all other terms of
this Article 11, restore the Base Building and such Common Areas. Such
restoration shall be to substantially the same condition of the Base Building
and the Common Areas prior to the casualty, except for modifications required by
zoning and building codes and other laws or by the holder of a mortgage on the
Building or Project or any other modifications to the Common Areas deemed
desirable by Landlord, which are consistent with the character of the Project,
provided that access to the Premises and any common restrooms serving the
Premises shall not be materially impaired. Upon the Occurrence of any damage to
the Premises, Tenant shall assign to Landlord (or to any party designated by
Landlord) all insurance proceeds payable to Tenant under Tenant's insurance
required under Section 10.3 of this Lease, and Landlord shall repair any injury
or damage to the Original Improvements installed in the Premises and shall
return such Original Improvements to their original condition; provided that if
the cost of such repair by Landlord exceeds the amount of insurance proceeds
received by Landlord from Tenant's insurance carrier, as assigned by Tenant, the
cost of such repairs shall be paid by Tenant to Landlord prior to Landlord's
commencement of repair of the damage. Landlord shall not be liable for any
inconvenience or annoyance to Tenant or its visitors, or injury to Tenant's
business resulting in any way from such damage or the repair thereof, provided
however, that if such fire or other casualty shall have damage the Premises or
Common Areas necessary to Tenant's occupancy, and the Premises are not occupied
by Tenant as a result thereof, then during the time and to the extent the
Premises are unfit for occupancy, the Rent shall be abated in proportion to the
ratio that the amount of rentable square feet of the Premises which is unfit for
occupancy for the purposes permitted under this Lease bears to the total
rentable square feet of the Premises.
11.2 LANDLORD'S OPTION TO REPAIR. Notwithstanding the terms of Section
---------------------------
11.1 of this Lease, Landlord may elect not to rebuild and/or restore
the Premises, Building and/or Project, and instead terminate this Lease, by
notifying Tenant in writing of such termination within sixty (60) days after the
date of damage, such notice to include a termination date giving Tenant sixty
(60) days to vacate the Premises, but Landlord may so elect only if the Building
or Project shall be damaged by fire or other casualty or cause, whether or not
the Premises are affected, and one or more of the following conditions is
present; (i) in Landlord's reasonable judgment, repairs cannot reasonably be
completed within one hundred eighty (180) days after the date of damage (when
such repairs are made without the payment of overtime or other premiums); (ii)
the holder of any mortgage on the Building or Project or ground lessor with
respect to the Building or Project shall require that the insurance proceeds or
any portion thereof be used to retire the mortgage debt, or shall terminate the
ground lease, as the case may be; (iii) the damage is not fully covered, except
for deductible amounts, by Landlord's insurance policies; (iv) Landlord decides
to rebuild the Building or Common Areas so that they will be substantially
different structurally or architecturally; (v) the damage occurs during the last
twelve (12) months of the Lease Term; or (vi) any owner of any other portion of
the Project, other than Landlord, does not intend to repair the damage to such
portion of the Project; provided, however, that if Landlord does not elect to
terminate this Lease pursuant to Landlord's termination right as provided above,
and the repairs cannot, in the reasonable opinion of Landlord, be completed
within one hundred eighty (180) days after being commenced, Tenant may elect, no
earlier than sixty (60) days after the date of the damage and not later than
ninety (90) days after the date of such damage, to terminate this Lease by
written notice to Landlord effective as of the date specified in the notice,
which date shall not be less than thirty (30) days nor more than sixty (60) days
after the date such notice is given by Tenant. Furthermore, if neither Landlord
nor Tenant has terminated this Lease, and the repairs are not actually completed
within such 180-day period, Tenant shall have right to terminate this Lease
during the first five (5) business days of each calendar month following the end
of such period until such time as the repairs are complete, by notice to
Landlord (the "DAMAGE TERMINATION NOTICE"), effective as of a date set forth in
the Damage Termination Notice (the "DAMAGE TERMINATION DATE"), which Damage
Termination Date shall not be less than ten (10)
-18-
business days following the end of each such month. Notwithstanding the
foregoing, if Tenant delivers a Damage Termination Notice to Landlord, then
Landlord shall have the right to suspend the occurrence of the Damage
Termination Date for a period ending thirty (30) days after the Damage
Termination date set forth in the Damage Termination Notice by delivering to
Tenant, within five (5) business days of Landlord's receipt of the Damage
Termination Notice, a certificate of Landlord's contractor responsible for the
repair of the damage certifying that it is such contractor's good faith judgment
that the repairs shall be substantially completed within thirty (30) days after
the Damage Termination Date. If repairs shall be substantially completed prior
to the expiration of such thirty-day period, then the Damage Termination Notice
shall be of no force or effect, but if the repairs shall not be substantially
completed within such thirty-day period, then this Lease shall terminate upon
the expiration of such thirty-day period. At any time, from time to time, after
the date occurring sixty (60) days after the date of the damage, Tenant may
request that Landlord inform Tenant of Landlord's reasonable opinion of the date
of completion of the repairs and Landlord shall respond to such request within
five (5) business days.
11.3 WAIVER OF STATUTORY PROVISIONS. The provisions of this Lease,
------------------------------
including this Article 11, constitute an express agreement between Landlord and
Tenant with respect to any and all damage to, or destruction of, all or any part
of the Premises, the Building or the Project, and any statute or regulation of
the State of California, including, without limitation, Sections 1932(2) and
1933(4) of the California Civil Code, with respect to any rights or obligations
concerning damage or destruction in the absence of an agreement between the
parties, and any other statute or regulation, now or hereafter in effect, shall
have no application to this Lease or any damage or destruction to all or any
part of the Premises, the Building or the Project.
ARTICLE 12
----------
NONWAIVER
---------
No provision of this Lease shall be deemed waived by either party hereto
unless expressly waived in a writing signed thereby. The waiver by either party
hereto of any breach of any term, covenant or condition herein contained shall
not be deemed to be a waiver of any subsequent breach of same or any other term,
covenant or condition herein contained. The subsequent acceptance of Rent
hereunder by Landlord shall not be deemed to be a waiver of any preceding breach
by Tenant of any term, covenant or condition of this Lease, other than the
failure of Tenant to pay the particular Rent so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of
such rent. No acceptance of a lesser amount than the Rent herein stipulated
shall be deemed a waiver of Landlord's right to receive the full amount due, nor
shall any endorsement or statement on any check or payment or any letter
accompanying such check or payment be deemed an accord and satisfaction, and
Landlord may accept such check or payment without prejudice to Landlord's right
to recover the full amount due. No receipt of monies by Landlord from Tenant
after the termination of this Lease shall in any way alter the length of the
Lease Term or of Tenant's right of possession hereunder, or after the giving of
any notice shall reinstate, continue or extend the Lease Term or affect any
notice given Tenant prior to the receipt of such monies, it being agreed that
after the service of notice or the commencement of a suit, or after final
judgment for possession of the Premises, Landlord may receive and collect any
Rent due, and the payment of said Rent shall not waive or affect said notice,
suit or judgment.
ARTICLE 13
----------
CONDEMNATION
------------
If the whole or any part of the Premises, Building or Project shall be
taken by power of eminent domain or condemned by any competent authority for any
public or quasi-public use or purpose, or if any adjacent property or street
shall be so taken or condemned, or reconfigured or vacated by such authority in
such manner as to require the use, reconstruction or remodeling of any part of
the Premises, Building or Project, or if Landlord shall grant a deed or other
instrument in lieu of such taking by eminent domain or condemnation, Landlord
shall have the option to terminate this Lease effective as of the date
possession is required to be surrendered to the authority. If more than
twenty-five percent (25%) of the rentable square feet of the Premises is taken,
or if access to the Premises is substantially impaired, in each case for a
period in excess of
-19-
one hundred eighty (180) days, Tenant shall have the option to terminate this
Lease effective as of the date possession is required to be surrendered to the
authority. Tenant shall not because of such taking assert any claim against
Landlord or the authority for any compensation because of such taking and
Landlord shall be entitled to the entire award or payment in connection
therewith, except that Tenant shall have the right to file any separate claim
available to Tenant for any taking of Tenant's personal property and fixtures
belonging to Tenant and removable by Tenant upon expiration of the Lease Term
pursuant to the terms of this Lease, and for moving expenses, so long as such
claims do not diminish the award available to Landlord, its ground lessor with
respect to the Building or Project or its mortgagee, and such claim is payable
separately to Tenant. All Rent shall be apportioned as of the date of such
termination. If any part of the Premises shall be taken, and this Lease shall
not be so terminated, the Rent shall be proportionately abated. Tenant hereby
waives any and all rights it might otherwise have pursuant to Section 1265.130
of The California Code of Civil Procedure. Notwithstanding anything to the
contrary contained in this Article 13, in the event of a temporary taking of all
or any portion of the Premises for a period of one hundred and eighty (180) days
or less, then this Lease shall not terminate but the Base Rent and the
Additional Rent shall be abated for the period of such taking in proportion to
the ratio that the amount of rentable square feet of the Premises taken bears to
the total rentable square feet of the Premises. Landlord shall be entitled to
receive the entire award made in connection with any such temporary taking.
ARTICLE 14
----------
ASSIGNMENT AND SUBLETTING
-------------------------
14.1 TRANSFERS. Tenant shall not, without the prior written consent of
---------
Landlord, assign, mortgage, pledge, hypothecate, encumber, or permit any lien to
attach to, or otherwise transfer, this Lease or any interest hereunder, permit
any assignment, or other transfer of this Lease or any interest hereunder by
operation of law, sublet the Premises or any part thereof, or enter into any
license or concession agreements or otherwise permit the occupancy or use of the
Premises or any part thereof by any persons other than Tenant and its employees
and contractors (all of the foregoing are hereinafter sometimes referred to
collectively as "TRANSFERS" and any person to whom any Transfer is made or
sought to be made is hereinafter sometimes referred to as a "TRANSFEREE"). If
Tenant desires Landlord's consent to any Transfer, Tenant shall notify Landlord
in writing, which notice (the "TRANSFER NOTICE") shall include (i) the proposed
effective date of the Transfer, which shall not be less than thirty (30) days
nor more than one hundred eighty (180) days after the date of delivery of the
Transfer Notice, (ii) a description of the portion of the Premises to be
transferred (the "SUBJECT SPACE"), (iii) all of the terms of the proposed
Transfer and the consideration therefor, including calculation of the "Transfer
Premium", as that term is defined in Section 14.3 below, in connection with such
Transfer Premium", as that term is defined in Section 14.3 below, in connection
with such Transfer, the name and address of the proposed Transferee, and a copy
of all existing executed and/or proposed documentation pertaining to the
proposed transfer, including all existing operative documents to be executed to
evidence such Transfer or the agreements incidental or related to such Transfer,
provided that Landlord shall have the right to require Tenant to utilize
Landlord's standard Transfer documents in connection with the documentation of
such Transfer (iv) current financial statements of the proposed Transferee
certified by an officer, partner or owner thereof, business credit and personal
references and history of the proposed Transferee and any other information
reasonably required by Landlord which will enable Landlord to determine the
financial responsibility, character, and reputation of the proposed Transferee,
nature of such Transferee's business and proposed use of the Subject Space. Any
Transfer made without Landlord's prior written consent shall, at Landlord's
option, be null, void and of no effect, and shall, at Landlord's option,
constitute a default by Tenant under this Lease. Whether or not Landlord
consents to any proposed Transfer, Tenant shall pay Landlord's reasonable review
and processing fees, as well as any reasonable professional fees (including,
without limitation, attorneys', accountants', architects', engineers' and
consultants' fees) incurred by Landlord, within thirty (30) days after written
request by Landlord, in an amount not to exceed $1,500 in the aggregate, for a
Transfer in the ordinary course of business.
14.2 LANDLORD'S CONSENT. Landlord shall not unreasonably withhold or delay
------------------
its consent to any proposed Transfer of the Subject Space to the Transferee on
the terms specified in the Transfer Notice. Without limitation as to other
reasonable grounds for withholding consent,
-20-
the parties hereby agree that it shall be reasonable under this Lease and under
any applicable law for Landlord to withhold consent to any proposed Transfer
where one or more of the following apply:
14.2.1 The Transferee is of a character or reputation or engaged in
a business which is not consistent with the quality of the Building or the
Project;
14.2.2 The Transferee intends to use the Subject Space for purposes
which are not permitted under this Lease;
14.2.3 The Transferee is either a governmental agency or
instrumentality thereof;
14.2.4 The Transferee is not a party of reasonable financial worth
and/or financial stability in light of the responsibilities to be undertaken in
connection with the Transfer on the date consent is requested;
14.2.5 The proposed Transfer would cause a violation of another
lease for space in the Project, or would give an occupant of the Project a right
to cancel its lease; or
14.2.6 Either the proposed Transferee, or any person or entity
which directly or indirectly, controls, is controlled by, or is under common
control with, the proposed Transferee, (i) occupies space in the Project at the
time of the request for consent, or (ii) is negotiating with Landlord or has
negotiated with Landlord during the six (6) month period immediately preceding
the date Landlord receives the Transfer Notice, to lease space in the Project.
If Landlord consents to any Transfer pursuant to the terms of this Section
14.2 (and does not exercise any recapture rights Landlord may have under Section
14.4 of this Lease), Tenant may within six (6) months after Landlord's consent,
but not later than the expiration of said six-month period, enter into such
Transfer of the Premises or portion thereof, upon substantially the same terms
and conditions as are set forth in the Transfer Notice furnished by Tenant to
Landlord pursuant to Section 14.1 of this Lease, provided that if there are any
changes in the terms and conditions from those specified in the Transfer Notice
(i) such that Landlord would initially have been entitled to refuse its consent
to such Transfer under this Section 14.2, or (ii) which would cause the proposed
Transfer to be more favorable to the Transferee than the terms set forth in
Tenant's original Transfer Notice, Tenant shall again submit the Transfer to
Landlord for its approval and other action under this Article 14 (including
Landlord's right of recapture, if any, under Section 14.4 of this Lease).
Notwithstanding anything to the contrary in this Lease, if Tenant or any
proposed Transferee claims that Landlord has unreasonably withheld or delayed
its consent under Section 14.2 or otherwise has breached or acted unreasonably
under this Article 14, their sole remedies shall be a suit for contract damages
(other than damages for injury to, or interference with, Tenant's business
including, without limitation, loss of profits, however occurring) or
declaratory judgment and an injunction for the relief sought, and Tenant hereby
waives all other remedies, including, without limitation, any right at law or
equity to terminate this Lease, on its own behalf and, to the extent permitted
under all applicable laws, on behalf of the proposed Transferee.
14.3 TRANSFER PREMIUM. If Landlord consents to a Transfer, as a condition
----------------
thereto which the parties hereby agree is reasonable, Tenant shall pay to
Landlord fifty (50%) of any "Transfer Premium," as that term is defined in this
Section 14.3, received by Tenant from such Transferee. "TRANSFER PREMIUM" shall
mean all rent, additional rent or other consideration payable by such Transferee
in connection with the Transfer in excess of the Rent and Additional Rent
payable by Tenant under this Lease during the term of the Transfer on a per
rentable square foot basis if less than all of the Premises is transferred,
after deducting the reasonable expenses incurred by Tenant for (i) any changes,
alterations and improvements to the Premises in connection with the Transfer,
(ii) any other monetary concessions provided to the Transferee, and (iii) any
brokerage commissions in connection with the Transfer (collectively, "TENANT'S
SUBLEASING COSTS"). "Transfer Premium" shall also include, but not be limited
to, key money, bonus money or other cash consideration paid by Transferee to
Tenant in connection with such Transfer, and any payment in excess of fair
market value for services rendered by Tenant to Transferee or for assets,
fixtures, inventory, equipment, or furniture transferred by Tenant to Transferee
in connection with such Transfer. The determination of the amount of Landlord's
-21-
applicable share of the Transfer Premium shall be made on a monthly basis as
rent or other consideration is received by Tenant under the Transfer. For
purposes of calculating the Transfer Premium on a monthly basis, (i) Tenant's
Subleasing Costs shall be deemed to be expended by Tenant in equal monthly
amounts over the entire term of the Transfer and (ii) the Rent paid for the
Subject Space by Tenant shall be computed after adjusting such rent to the
actual effective rent to be paid, taking into consideration any and all
leasehold concessions granted in connection therewith, including, but not
limited to, any rent credit and tenant improvement allowance. For purposes of
calculating any such effective rent all such concessions shall be amortized on a
straight-line basis over the relevant term.
14.4 LANDLORD'S OPTION AS TO SUBJECT SPACE. Notwithstanding anything to
-------------------------------------
the contrary contained in this Article 14, in the event Tenant contemplates a
Transfer of all or a portion of the Premises (or in the event of any other
Transfer or Transfers entered into by Tenant as a subterfuge in order to avoid
the terms of this Section 14.4), Tenant shall give Landlord notice (the
"INTENTION TO TRANSFER NOTICE") of such contemplated Transfer (whether or not
the contemplated Transferee or the terms of such contemplated Transfer have been
determined). The Intention to Transfer Notice shall specify the portion of and
amount of rentable square feet of the Premises which Tenant intends to Transfer
(the "CONTEMPLATED TRANSFER SPACE"), the contemplated date of commencement of
the Contemplated Transfer (the CONTEMPLATED EFFECTIVE DATE"), and the
contemplated length of the term of such contemplated Transfer, and shall specify
that such Intention to Transfer Notice is delivered to Landlord pursuant to this
Section 14.4 in order to allow Landlord to elect to recapture the Contemplated
Transfer Space for the term set forth in the Intention to Transfer Notice.
Thereafter, Landlord shall have the option, by giving written notice to Tenant
within thirty (30) days after receipt of any Intention to Transfer Notice, to
recapture the Contemplated Transfer Space. Such recapture shall cancel and
terminate this Lease with respect to such Contemplated Transfer Space as of the
Contemplated Effective Date until the last day of the term of the contemplated
Transfer as set forth in the Intention to Transfer Notice. In the event of a
recapture by Landlord, if this Lease shall be canceled with respect to less than
the entire Premises, the Rent reserved herein shall be prorated on the basis of
the number of rentable square feet retained by Tenant in proportion to the
number of rentable square feet contained in the Premises, and this Lease as so
amended shall continue thereafter in full force and effect, and upon request of
either party, the parties shall execute written confirmation of the same. If
Landlord declines, or fails to elect in a timely manner, to recapture such
Contemplated Transfer Space under this Section 14.4, then, subject to the other
terms of this Article 14, for a period of nine (9) months (the "NINE MONTH
PERIOD") commencing on the last day of such thirty (30) day period, Landlord
shall not have any right to recapture the Contemplated Transfer Space with
respect to any Transfer made during the Nine Month Period, provided that any
such Transfer is substantially on the terms set forth in the Intention to
Transfer Notice, and provided further that any such Transfer shall be subject to
the remaining terms of this Article 14. If such a Transfer is not so consummated
within the Nine Month Period (or if a Transfer is so consummated, then upon the
expiration of the term of any Transfer of such Contemplated Transfer Space
consummated within such Nine Month Period), Tenant shall again be required to
submit a new Intention to Transfer Notice to Landlord with respect any
contemplated Transfer, as provided above in this Section 14.4.
14.5 EFFECT OF TRANSFER. If Landlord consents to a Transfer, (i) the
------------------
terms and conditions of this Lease shall in no way be deemed to have waived or
modified, (ii) such consent shall not be deemed consent to any further Transfer
by either Tenant or a Transferee, (iii) Tenant shall deliver to Landlord,
promptly after execution, an original executed copy of all documentation
pertaining to the Transfer in form reasonably acceptable to Landlord, (iv)
Tenant shall furnish upon Landlord's request a complete statement, certified by
an independent certified public accountant, or Tenant's chief financial officer,
setting forth in detail the computation of any Transfer Premium Tenant has
derived and shall derive from such Transfer, and (v) no Transfer relating to
this Lease or agreement entered into with respect thereto, whether with or
without Landlord's consent, shall relieve Tenant or any guarantor of the Lease
from any liability under this Lease, including, without limitation, in
connection with the Subject Space. Landlord or its authorized representatives
shall have the right at all reasonable times to audit the books, records and
papers of Tenant relating to any Transfer, and shall have the right to make
copies thereof. If the Transfer Premium respecting any Transfer shall be found
understated, Tenant shall, within
-22-
thirty (30) days after demand, pay the deficiency, and if understated by more
than two percent (2%), Tenant shall pay Landlord's costs of such audit.
14.6 OCCURRENCE OF DEFAULT. Any Transfer hereunder shall be subordinate
---------------------
and subject to the provisions of this Lease, and if this Lease shall be
terminated during the term of any Transfer, Landlord shall have the right to:
(i) treat such Transfer as cancelled and repossess the Subject Space by any
lawful means, or (ii) require that such Transferee attorn to and recognize
Landlord as its landlord under any such Transfer. If Tenant shall be in default
under this Lease, Landlord is hereby irrevocably authorized, as Tenant's agent
and attorney-in-fact, to direct any Transferee to make all payments under or in
connection with the Transfer directly to Landlord (which Landlord shall apply
towards Tenant's obligations under this Lease) until such default is cured. Such
Transferee shall rely on any representation by Landlord that Tenant is in
default hereunder, without any need for confirmation thereof by Tenant. Upon any
assignment, the assignee shall assume in writing all obligations and covenants
of Tenant thereafter to be performed or observed under this Lease. No collection
or acceptance of rent by Landlord from any Transferee shall be deemed a waiver
of any provision of this Article 14 or the approval of any Transferee or a
release of Tenant from any obligation under this Lease, whether theretofore or
thereafter accruing. In no event shall Landlord's enforcement of any provision
of this Lease against any Transferee be deemed a waiver of Landlord's right to
enforce any term of this Lease against Tenant or any other person. If Tenant's
obligations hereunder have been guaranteed, Landlord's consent to any Transfer
shall not be effective unless the guarantor also consents to such Transfer.
14.7 NON-TRANSFER. Notwithstanding anything to the contrary contained in
------------
this Article 14, as assignment or subletting of all or a portion of the Premises
----------
to an affiliate of Tenant(an entity which is controlled by, controls, or is
under common control with, Tenant), shall not be deemed a Transfer under this
Article 14, provided that Tenant notifies Landlord of any such assignment or
- ----------
sublease and promptly supplies Landlord with any documents or information
requested by Landlord regarding such assignment or sublease or such affiliate,
and further provided that such assignment or sublease is not a subterfuge by
Tenant to avoid its obligations under this Lease. "CONTROL," as used in this
Section 14.7, shall mean the ownership, directly or indirectly, of at least
- ------------
fifty-one percent (51%) of the voting securities of, or possession of the right
to vote, in the ordinary direction of its affairs, of at least fifty-one percent
(51%) of the voting interest in, any person or entity.
14.8 PERMITTED SUBLEASES. Notwithstanding any contrary provision of this
-------------------
Article 14, Tenant shall have the right without the payment of a Transfer
Premium and without the receipt of Landlord's consent, but on prior written
notice to Landlord, to sublease up to twenty-five percent (25%) of the rentable
square feet of the Premises in the aggregate, to individuals or entities (the
"BUSINESS AFFILIATES") on and subject to the following conditions: (i) Tenant
shall have a business relationship with such Business Affiliate while such
Business Affiliate occupies the Premises; (ii) such Business Affiliates shall
not occupy a separately demised portion of the Premises which contains an
entrance to such portion of the Premises other than the primary entrance to the
Premises; (ii) all such Business Affiliates shall be of a character and
reputation consistent with the quality of the Building and the Project; and
(iii) such sublease shall not be a subterfuge by Tenant to avoid its obligations
under this Lease or the restrictions on Transfers pursuant to this Article 14.
Tenant shall promptly supply Landlord with any document or information requested
by Landlord regarding any such sublease. Any sublease permitted under this
Section 14.8 shall not be deemed a Transfer under this Article 14.
Notwithstanding the foregoing, no such sublease shall relieve Tenant from any
liability under this Lease.
ARTICLE 15
----------
SURRENDER OF PREMISES; OWNERSHIP AND
------------------------------------
REMOVAL OF TRADE FIXTURES
-------------------------
15.1 SURRENDER OF PREMISES. No act or thing done by Landlord or any agent
---------------------
or employee of Landlord during the Lease Term shall be deemed to constitute an
acceptance by Landlord of a surrender of the Premises unless such intent is
specifically acknowledged in writing by Landlord. The delivery of keys to the
Premises to Landlord or any agent or employee of Landlord shall not constitute a
surrender of the Premises or effect a termination of this Lease,
-23-
whether or not the keys are thereafter retained by Landlord, and notwithstanding
such delivery Tenant shall be entitled to the return of such keys at any
reasonable time upon request until this Lease shall have been properly
terminated. The voluntary or other surrender of this Lease by Tenant, whether
accepted by Landlord or not, or a mutual termination hereof, shall not work a
merger, and at the option of Landlord shall operate as an assignment to Landlord
of all subleases or subtenancies affecting the Premises or terminate any or all
such sublessees or subtenancies.
15.2 REMOVAL OF TENANT PROPERTY BY TENANT. Upon the expiration of the
------------------------------------
Lease Term, or upon any earlier termination of this Lease, Tenant shall, subject
to the provisions of this Article 15, quit and surrender possession of the
Premises to Landlord in as good order and condition as when Tenant took
possession and as thereafter improved by Landlord and/or Tenant, reasonable wear
and tear and repairs which are specifically made the responsibility of Landlord
hereunder excepted. Upon such expiration or termination, Tenant shall, without
expense to Landlord, remove or cause to be removed from the Premises all debris
and rubbish, and such items of furniture, equipment, business and trade
fixtures, free-standing cabinet work, movable partitions and other articles of
personal property owned by Tenant or installed or placed by Tenant at its
expense in the Premises, and such similar articles of any other persons claiming
under Tenant, as Landlord may, in its sole discretion, require to be removed,
and Tenant shall repair at its own expense all damage to the Premises and
Building resulting from such removal.
ARTICLE 16
----------
HOLDING OVER
------------
If Tenant holds over after the expiration of the Lease Term or earlier
termination thereof, with or without the express or implied consent of Landlord,
such tenancy shall be from month-to-month only, and shall not constitute a
renewal hereof or an extension for any further term, and in such case Rent shall
be payable at a monthly rate equal to the product of (i) the Rent applicable
during the last rental period of the Lease Term under this Lease, and (ii) a
percentage equal to 150% during the first two (2) months immediately following
the expiration or earlier termination of the Lease Term, and 200% thereafter.
Such month-to-month tenancy shall be subject to every other applicable term,
covenant and agreement contained herein. Nothing contained in this Article 16
shall be construed as consent by Landlord to any holding over by Tenant, and
Landlord expressly reserves the right to require Tenant to surrender possession
of the Premises to Landlord as provided in this Lease upon the expiration or
other termination of this Lease. The provisions of this Article 16 shall not be
deemed to limit or constitute a waiver of any other rights or remedies of
Landlord provided herein or at law. If Tenant fails to surrender the Premises
upon the termination or expiration of this Lease, in addition to any other
liabilities to Landlord accruing therefrom, Tenant shall protect, defend,
indemnify and hold Landlord harmless from all loss, costs (including reasonable
attorneys' fees) and liability resulting from such failure, including, without
limiting the generality of the foregoing, any claims made by any succeeding
tenant founded upon such failure to surrender and any lost profits to Landlord
resulting therefrom .
ARTICLE 17
----------
ESTOPPEL CERTIFICATES
---------------------
Within ten (10) business days following a request in writing by Landlord,
Tenant shall execute, acknowledge and deliver to Landlord an estoppel
certificate, which, as submitted by Landlord, shall be substantially in the form
of EXHIBIT E, attached hereto (or such other form as may be required by any
---------
prospective mortgagee or purchaser of the Project, or any portion thereof),
indicating therein any exceptions thereto that may exist at that time, and shall
also contain any other information reasonably requested by Landlord or
Landlord's mortgagee or prospective motrgagee. Any such certificate may be
relied upon by any prospective mortgagee or purchaser of all or any portion of
the Project. Tenant shall execute and deliver whatever other instruments may be
reasonably required for such porposes. At any time during the Lease Term,
Landlord may require Tenant to provide Landlord with a current financial
statement and financial statements of the two (2) years prior to the current
financial statement year. Such statements shall be prepared in accordance with
generally accepted accounting principles and, if such is the normal practice of
Tenant, shall be audited by an independent certified public accountant. Failure
of Tenant to timely execute, acknowledge and deliver such estoppel certificate
or other
-24-
instruments shall constitute an acceptance of the Premises and an
acknowledgement by Tenant that statements included in the estoppel certificate
are true and correct, without exception.
ARTICLE 18
----------
SUBORDINATION
-------------
This Lease shall be subject and subordinate to all present and future
ground or underlying leases of the Building or Project and to the lien of any
mortgage, trust deed or other encumbrances now or hereafter in force against the
Building or Project or any part thereof, if any, and to all renewals,extensions,
modifications, consolidations and replacements thereof, and to all advances made
or hereafter to be made upon the security of such mortgages or trust deeds,
unless the holders of such mortgages, trust deeds or other encumbrances, or the
lessors under such ground lease or underlying leases, require in writing that
this Lease be superior thereto. Tenant covenants and agrees in the event any
proceedings are brought for the foreclosure of any such mortgage or deed in lieu
thereof (or if any ground lease is terminated), to attorn, without any
deductions or set-offs whatsoever, to the lienholder or purchaser or any
successors thereto upon any such foreclosure sale or deed in lieu thereof (or to
the ground lessor), if so requested to do so by such purchaser or lienholder or
ground lessor, and to recognize such purchaser or lienholder or ground lessor as
the lessor under this Lease, provided such lienholder or purchaser or ground
lessor shall agree to accept this Lease and not disturb Tenant's occupancy, so
long as Tenant timely pays the rent and observes and performs the terms,
covenants and conditions of this Lease to be observed and performed by Tenant.
Landlord's interest herein may be assigned as security at any time to any
lienholder. Tenant shall, within ten (10) days of request by Landlord, execute
such further instruments or assurances as Landlord may reasonably deem necessary
to evidence or confirm the subordination or superiority of this Lease to any
such mortgages, trust deeds, ground leases or underlying leases. Tenant waives
the provisions of any current or future statue, rule or law which may give or
purport to give Tenant any right or election to terminate or otherwise adversely
affect this Lease and the obligations of the Tenant hereunder in the event of
any foreclosure proceeding or sale.
ARTICLE 19
----------
DEFAULTS:REMEDIES
-----------------
19.1 EVENTS OF DEFAULT. The occurance of any of the following shall
-----------------
constitute a default of this Lease by Tenant:
19.1.1 Any failure by Tenant to pay any Rent or any other charge
required to be paid under this Lease, or any part thereof, when due unless such
failure is cured within five (5) business days after notice; or
19.1.2 Except where a specific time period is otherwise set forth
for Tenant's performance in this Lease, in which event the failure to perform by
Tenant within such time period shall be a default by Tenant under this Section
19.1.2, any failure by Tenant to be observe or perform any other provision,
covenant or condition of this Lease to be observed or performed by Tenant where
such failure continues for thirty (30) days after written notice thereof from
Landlord to Tenant; provided that if the nature of such default is such that the
same cannot reasonably be cured within a thirty (30) day period, Tenant shall
not be deemed to be in default if it diligently commences such cure within such
period and thereafter diligently proceeds to rectify and cure such default; or
19.1.3 Abandonment or vacation of all or a substantial portion of
the Premises by Tenant; or
19.1.4 The failure by Tenant to observe or perform according to the
provisions of Article 5, 14, 17 or 18 of this Lease where such failure continues
for than two (2) business days after notice from Landlord; or
19.1.5 Tenant's failure to occupy the Premises within ten (10)
business days after the Lease Commencement Date.
-25-
The notice periods provided herein are in lieu of, and not in addition
to, any notice periods provided by law.
19.2 Remedies Upon Default. Upon the occurrence of any event of
---------------------
default by Tenant, Landlord shall have, in addition to any other remedies
available to Landlord at law or in equity (all of which remedies shall be
distinct, separate and cumulative,) the option to pursue any one or more of the
following remedies, each and all of which shall be cumulative and nonexclusive,
without any notice or demand whatsoever.
19.2.1 Terminate this lease, in which event Tenant shall
immediately surrender the Premises to Landlord, and if Tenant fails to do so,
Landlord may, without prejudice to any other remedy which it may have for
possession or arrearages in rent, enter upon and take possession of the Premises
and expel or remove Tenent and any other person who may be occuping the Premises
or any part thereof, without being liable for prosecution or any claim or
damages thereof; and Landlord may recover from Tenant following:
(i) The worth at the time of any unpaid rent which has
been earned at the time of such termination; plus
(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 rental loss that Tenant proves
could have been reasonably avoided; plus
(iii) The worth at the time of award of the amount by
which the unpaid rent for the balance of the Lease Term after the time of
award exceeds the amount of such rental loss that Tenant proves could have
been reasonable avoided; plus
(iv) Any other amount necessary to compensate Landlord
for all the detriment proximately caused by Tenant's failure to perform its
obligation under this Lease or which in the ordinary course of things would
be likely to result therefrom, specifically including but not limited to,
brokerage commission and advertising expenses incurred expenses of
remodeling the Premises or any portion thereof for a new tenant, whether
for the same or a different use, and any special concession made to obtain
a new tenant; and
(v) At Landlord's election, such other amounts in
addition to or in lieu of the foregoing as may be permitted from time to
time by applicable law.
The term "rent" as used in this Section 19.2 shall be deemed to be and to
mean all sums of every nature required to be paid by Tenant pursuant to the
terms of this Lease, whether to Landlord or to others. As used in paragraphs
19.2.1 (i) and (ii), above, the "worth at the time of award" shall be computed
by allowing interest at the rate set forth in Article 25 of this Lease, but in
no case grate than the maximum amount of such interest permitted by law. As used
in Paragraph 19.2.1(iii) above, the "worth at the time of award" 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%). If Landlord
terminates this Lease or Tenant's right to possession, Landlord shall use
reasonable efforts to mitigate Landlord's damages, and Tenant shall be entitled
to submit proof of such failure to mitigate as a defense to Landlord's claims
hereunder, if mitigation of damages by Landlord is required by applicable law.
19.22 Landlord shall have the remedy described in California Civil Code
Section 1951.4 (lessor may continue lease in effect after lessee's breach and
abandonment and recover rent as it become due, if lessee has the right to sublet
or assign, subject only to reasonable limitations). Accordingly, if Landlord
may, from time to time, without terminating this Lease, enforce all of its
rights and remedies under this Lease, including the right to recover all rent as
it becomes due.
19.2.3 Landlord shall at all time have the rights and remedies (which
shall be cumulative with each other and cumulative and in addition to those
rights and remedies available under Sections 19.2.1, above, or any law or other
provision of this Lease), without prior demand or notice except as required by
applicable law, to seek any declaratory, injunctive or
-26-
other equitable relief, and specifically enforce this Lease, or restrain or
enjoin a violation or breach of any provision hereof.
19.3 EFFORTS TO RELET. No re-entry or repossession, repairs
----------------
maintenance, changes, alterations and additions, reletting, appointment of a
receiver to protect Landlord's interests hereunder, or any other action or
omission by Landlord shall be construed as an election by Landlord to terminate
this Lease or Tenant's right to possession, or to accept a surrender of the
Premises, nor shall same operate to release Tenant in whole or in part from any
of Tenant's obligations hereunder, unless express written notice of such
intention is sent by Landlord to Tenant. Tenant hereby irrevocably waives any
right otherwise available under any law to redeem or reinstate this Lease.
ARTICLE 20
----------
COVENANT OF QUIET ENJOYMENT
---------------------------
Landlord covenants that Tenant, on paying the Rent, charges for services
and other payments herein reserved and on keeping, observing and performing all
the other terms, covenants, conditions, provisions and agreements herein
contained on the part of Tenant to be kept, observed and performed, shall,
during the Lease Term, peaceably and quietly have, hold and enjoy the Premises
subject to the terms, covenants, conditions, provisions and agreements hereof
without interference by any persons lawfully claiming by or through Landlord.
The foregoing covenant is in lieu of any other covenant express or implied.
ARTICLE 21
----------
SECURITY DEPOSIT
----------------
Concurrent with Tenant's execution of this Lease, Tenant shall deposit with
Landlord a security deposit ("the SECURITY DEPOSIT") in the amount set forth in
Section 8 of the Summary, as security for the faithful performance by Tenant of
all of its obligations under this Lease. If Tenant defaults with respect to any
provisions of this Lease, including, but not limited to, the provisions relating
to the payment of Rent, the removal of property and the repair of resultant
damage, Landlord may, without notice to Tenant, but shall not be required to
apply all or any part of the Security Deposit for the payment of any Rent or any
other sum in default and Tenant shall, upon demand therefor, restore the
Security Deposit to its original amount. Any unapplied portion of the Security
Deposit shall be returned to Tenant, or, at Landlord's option, to the last
assignee of Tenant's interest hereunder, within sixty (60) days following the
expiration of the Lease Term Tenant shall not be entitled to any interest on
the Security Deposit. Tenant hereby waives the provisions of Section 1950.7 of
the California Civil Code, or any successor statute.
ARTICLE 22
----------
SUBSTITUTION OF OTHER PREMISES
------------------------------
Landlord shall have the right to move Tenant to other space in the Project
comparable to the Premises, and all terms hereof shall apply to the new space
with equal force; provided that Tenant's then existing monetary obligations
under this Lease shall not be increased as a result of such relocation of the
Premises. In such event, Landlord shall give Tenant prior notice, shall provide
Tenant, at Landlord's sole cost and expense, with tenant improvements at least
equal in quality to those in the Premises and shall move Tenant's effects to the
new space at Landlord's sole cost and expense at such time and in such manner as
to inconvenience Tenant as little as reasonably practicable. In addition,
Landlord shall reimburse Tenant for the reasonable costs and expenses incurred
by Tenant in connection with such relocation (including, but not limited to, the
cost of reasonable supplies of replacement stationery and telephone
installations), within thirty (30) days of Landlord's receipt of an invoice
therefor. Simultaneously with such relocation of the Premises, the parties shall
immediately execute an amendment to this Lease stating the relocation of the
Premises.
-27-
ARTICLE 23
----------
SIGNS
-----
23.1 FULL FLOORS. Subject to Landlord's prior written approval, in its sole
-----------
discretion, and provided all signs are in keeping with the quality, design and
style of the Building and Project, Tenant, if the Premises comprise an entire
floor of the Building, at its sole cost and expense, may install identification
signage anywhere in the Premises including in the elevator lobby of the
Premises, provided that such signs must not be visible from the exterior of the
Building.
23.2 MULTI-TENANT FLOORS. If other tenants occupy space on the floor on
-------------------
which the Premises is located, Tenant's identifying signage shall be provided by
Landlord, at Tenant's cost, and such signage shall be comparable to that used by
Landlord for other similar floors in the Building and shall comply with
Landlord's Building standard signage program.
23.3 PROHIBITED SIGNAGE AND OTHER ITEMS. Any signs, notices, logos,
----------------------------------
pictures, names or advertisements which are installed and that have not been
separately approved by Landlord may be removed without notice by Landlord at the
sole expense of Tenant. Tenant may not install any signs on the exterior or roof
of the Project or the Common Areas. Any signs, window coverings, or blinds (even
if the same are located behind the Landlord-approved window coverings for the
Building), or other items visible from the exterior of the Premises or Building,
shall be subject to the prior approval of Landlord, in its sole discretion.
23.4 BUILDING DIRECTORY. A building directory will be located in the lobby
------------------
of the Building. Tenant shall have the right, at Tenant's sole cost and expense,
to designate name strips to be displayed under Tenant's entry in such
directory at the rate of one (1) strip per each 1,000 rentable square feet of
the Premises.
ARTICLE 24
----------
COMPLIANCE WITH THE LAW
-----------------------
Tenant shall not do anything or suffer anything to be done in or about the
Premises or the Project which will in any way conflict with any law, statute,
ordinance or other governmental rule, regulation or requirement now in force or
which may hereafter be enacted or promulgated. At its sole cost and expense,
Tenant shall promptly comply with all such governmental measures, other than the
making of changes to the Base Building. Should any standard or regulation now or
hereafter be imposed on Landlord or Tenant by a state, federal or local
governmental body charged with the establishment, regulation and enforcement of
occupational, health or safety standards for employers, employees, landlords or
tenants, then Tenant agrees, at its sole cost and expense, to comply promptly
with such standards or regulations. The judgment of any court of competent
jurisdiction or the admission of Tenant in any judicial action, regardless of
whether Landlord is a party thereto, that Tenant has violated any of said
governmental measures, shall be conclusive of that fact as between Landlord and
Tenant.
ARTICLE 25
----------
LATE CHARGES
------------
If any installment of Rent or any other sum due from Tenant shall not be
received by Landlord or Landlord's designee within five (5) business days after
Tenant's receipt of written notice from Landlord that said amount is due, then
Tenant shall pay to Landlord a late charge equal to five percent (5%) of the
overdue amount plus any reasonable attorneys' fees incurred by Landlord by
reason of Tenant's failure to pay Rent and/or other charges when due hereunder.
The late charge shall be deemed Additional Rent and the right to require it
shall be in addition to all of Landlord's other rights and remedies hereunder or
at law and shall not be construed as liquidated damages or as limiting
Landlord's remedies in any manner. In addition to the late charge described
above, any Rent or other amounts owing hereunder which are not paid within ten
(10) days after the date they are due shall bear interest from the date when due
until paid at a rate per annum equal to the lesser of (i) the annual "Bank Prime
Loan" rate cited in the Federal Reserve Statistical Release Publication
G.13(415), published on the first Tuesday of each calendar
-28-
month (or such other comparable index as Landlord and Tenant shall reasonably
agree upon if such rate ceases to be published) plus two (2) percentage points,
and (ii) the highest rate permitted by applicable law.
ARTICLE 26
----------
LANDLORD'S RIGHT TO CURE DEFAULT: PAYMENTS BY TENANT
----------------------------------------------------
26.1 LANDLORD'S CURE. All covenants and agreements to be kept or performed
---------------
by Tenant under this Lease shall be performed by Tenant at Tenant's sole cost
and expense and without any reduction of Rent, except to the extent, if any,
otherwise expressly provided herein. If Tenant shall fail to perform any
obligation under this Lease, and such failure shall continue in excess of the
time allowed under Section 19.1.2, above, unless a specific time period is
otherwise stated in this Lease, Landlord may, but shall not be obligated to,
make any such payment or perform any such act on Tenant's part without waiving
its rights based upon any default of Tenant and without releasing Tenant from
any obligations hereunder.
26.2 TENANT'S REIMBURSEMENT. Except as may be specifically provided to the
----------------------
contrary in this Lease, Tenant shall pay to Landlord upon delivery by Landlord
to Tenant of statements therefor: (i) sums equal to expenditures reasonably
made and obligations incurred by Landlord in connection with the remedying by
Landlord of Tenant's defaults pursuant to the provisions of Section 26.1; (ii)
sums equal to all losses, costs, liabilities, damages and expenses referred to
in Article 10 of this Lease; and (iii) sums equal to all expenditures made and
obligations incurred by Landlord in collecting or attempting to collect the Rent
or in enforcing or attempting to enforce any rights of Landlord under this Lease
or pursuant to law, including, without limitation, all reasonable legal fees and
other amounts so expended. Tenant's obligations under this Section 26.2 shall
survive the expiration or sooner termination of the Lease Term.
ARTICLE 27
----------
ENTRY BY LANDLORD
-----------------
Landlord reserves the right at all reasonable times and upon reasonable
notice to Tenant (except in the case of an emergency) to enter the Premises to
(i) inspect them; (ii) show the Premises to prospective purchasers, or to
current or prospective mortgagees, ground or underlying lessors or insurers, or
during the last twelve (12) months of the Lease Term, to prospective tenants;
(iii) post notices of nonresponsibility; or (iv) alter, improve or repair the
Premises or the Building, or for structural alterations, repairs or improvements
to the Building or the Building's systems and equipment. Notwithstanding
anything to the contrary contained in this Article 27, Landlord may enter the
Premises at any time to (A) perform services required of Landlord, including
janitorial service; (B) take possession due to any breach of this Lease in the
manner provided herein; and (C) perform any covenants of Tenant which Tenant
fails to perform. Landlord may make any such entries without the abatement of
Rent, except as otherwise provided in this Lease and may take such reasonable
steps as required to accomplish the stated purposes. Tenant hereby waives any
claims for damages or for any injuries or inconvenience to or interference with
Tenant's business, lost profits, any loss of occupancy or quiet enjoyment of the
Premises, and any other loss occasioned thereby. For each of the above purposes,
Landlord shall at all times have a key with which to unlock all the doors in the
Premises, excluding Tenant's vaults, safes and special security areas designated
in advance by Tenant. In an emergency, Landlord shall have the right to use any
means that Landlord may deem proper to open the doors in and to the Premises.
Any entry into the Premises by Landlord in the manner hereinbefore described
shall not be deemed to be a forcible or unlawful entry into, or a detainer of,
the Premises, or an actual or constructive eviction of Tenant from any portion
of the Premises. No provision of the Lease shall be construed as obligating
Landlord to perform any repairs, alterations or deductions except as otherwise
expressly agreed to be performed by Landlord herein.
-29-
ARTICLE 28
----------
TENANT PARKING
--------------
Tenant shall have the right to rent from Landlord, commencing on the Lease
Commencement Date, up to the amount of parking passes set forth in Section 9 of
the Summary, on a monthly basis throughout the Lease Term, which parking passes
shall pertain to the Project parking facility. The location of Tenant's reserved
parking space (the "RESERVED SPACE") shall be mutually agreed upon between
Landlord and Tenant, subject to availability. Tenant may change the number of
unreserved parking passes rented pursuant to this Article 28 upon at least
thirty (30) days prior written notice to Landlord, provided that in no event
shall Tenant be entitled to rent more than the amount of parking passes set
forth in Section 9 of the Summary, and provided further that, if Tenant decides
to no longer lease the Reserved Space, Tenant shall not have the right to
thereafter lease the Reserved Space during the remainder of the Lease Term.
Tenant shall pay to Landlord for automobile parking passes on a monthly basis
the prevailing rate charged from time to time at the location of such parking
passes. In addition, Tenant shall be responsible for the full amount of any
taxes imposed by any governmental authority in connection with the renting of
such parking passes by Tenant or the use of the parking facility by Tenant.
Notwithstanding anything to the contrary set forth in this Article 28, during
the first (1st) Lease Year, Tenant shall not be required to pay any charges in
connection with its leasing of the Reserved Space. Tenant's continued right to
use the parking passes is conditioned upon Tenant abiding by all rules and
regulations, which are prescribed from time to time for the orderly operation
and use of the parking facility where the parking passes are located, including
any sticker or other identification system established by Landlord, Tenant's
cooperation in seeing that Tenant's employees and visitors also comply with such
rules and regulations and Tenant not being in default under this Lease. Landlord
specifically reserves the right to change the size, configuration, design,
layout and all other aspects of the Project parking facility at any time and
Tenant acknowledges and agrees that Landlord may, without incurring any
liability to Tenant and without any abatement of Rent under this Lease, from
time to time, close-off or restrict access to the Project parking facility for
purposes of permitting or facilitating any such construction, alteration or
improvements. Landlord may delegate its responsibilities hereunder to a parking
operator in which case such parking operator shall have all the rights of
control attributed hereby to the Landlord. The parking passes rented by Tenant
pursuant to this Article 28 are provided to Tenant solely for use by Tenant's
own personnel and such passes may not be transferred, assigned, subleased or
otherwise alienated by Tenant without Landlord's prior approval. Tenant may
validate visitor parking by such method or methods as the Landlord may
establish, at the validation rate from time to time generally applicable to
visitor parking.
ARTICLE 29
----------
MISCELLANEOUS PROVISIONS
------------------------
29.1 TERMS: CAPTIONS. The words "Landlord" and "Tenant" as used herein
---------------
shall include the plural as well as the singular. The necessary grammical
changes required to make the provisions hereof apply either to corporations or
partnerships or individuals, men or women, as the case may require, shall in all
cases be assumed as though in each case fully expressed. The captions of
Articles and Sections are for convenience only and shall not be deemed to limit,
construe, affect or alter the meaning of such Articles and Sections.
29.2 BINDING EFFECT. Subject to all other provisions of this Lease, each of
--------------
the covenants, conditions and provisions of this Lease shall extend to and
shall, as the case may require, bind or inure to the benefit not only of
Landlord and of Tenant, but also of their respective heirs, personal
representatives, successors or assigns, provided this clause shall not permit
any assignment by Tenant contrary to the provisions of Article 14 of this Lease.
29.3 NO AIR RIGHTS. No rights to any view or to light or air over any
-------------
property, whether belonging to Landlord or any other person, are granted to
Tenant by this Lease. If at any time any windows of the Premises are temporarily
darkened or the light or view therefrom is obstructed by reason of any repairs,
improvements, maintenance or cleaning in or about the Project, the same shall be
without liability to Landlord and without any reduction or diminution of
Tenant's obligations under this Lease.
-30-
29.4 MODIFICATION OF LEASE. Should any current or prospective mortgagee or
---------------------
ground lessor for the Building or Project require a modification of this Lease,
which modification will not cause an increased cost or expense to Tenant or in
any other way materially and adversely change the rights and obligations of
Tenant hereunder, then and in such event, Tenant agrees that this Lease may be
so modified and agrees to execute whatever documents are reasonably required
therefor and to deliver the same to Landlord within ten (10) business days
following a request therefor. At the request of Landlord or any mortgagee or
ground lessor, Tenant agrees to execute a short form of Lease and deliver the
same to Landlord within ten (10) business days following the request therefor.
29.5 TRANSFER OF LANDLORD'S INTEREST. Tenant acknowledges that Landlord has
-------------------------------
the right to transfer all or any portion of its interest in the Project or
Building and in this Lease, and Tenant agrees that in the event of any such
transfer, Landlord shall automatically be released from all liability under this
Lease and Tenant agrees to look solely to such transferee for the performance of
Landlord's obligations hereunder after the date of transfer and such transferee
shall be deemed to have fully assumed and be liable for all obligations of this
Lease to be performed by Landlord, including the return of any Security Deposit,
and Tenant shall attorn to such transferee.
29.6 PROHIBITION AGAINST RECORDING. Except as provided in Section 29.4 of
-----------------------------
this Lease, neither this Lease, nor any memorandum, affidavit or other writing
with respect thereto, shall be recorded by Tenant or by anyone acting through,
under or on behalf of Tenant.
29.7 LANDLORD'S TITLE. Landlord's title is and always shall be paramount to
----------------
the title of Tenant. Nothing herein contained shall empower Tenant to do any act
which can, shall or may encumber the title of Landlord.
29.8 RELATIONSHIP OF PARTIES. Nothing contained in this Lease shall be
-----------------------
deemed or construed by the parties hereto or by any third party to create the
relationship of principal and agent, partnership, joint venturer or any
association between Landlord and Tenant.
29.9 APPLICATION OF PAYMENTS. Landlord shall have the right to apply
-----------------------
payments received from Tenant pursuant to this Lease, regardless of Tenant's
designation of such payments, to satisfy any obligations of Tenant hereunder, in
such order and amounts as Landlord, in its sole discretion, may elect.
29.10 TIME OF ESSENCE. Time is of the essence with respect to the
---------------
performance of every provision of this Lease in which time of performance is a
factor.
29.11 PARTIAL INVALIDITY. If any term, provision or condition contained in
------------------
this Lease shall, to any extent, be invalid or unenforceable, the remainder of
this Lease, or the application of such term, provision or condition to persons
or circumstances other than those with respect to which it is invalid or
unenforceable, shall not be affected thereby, and each and every other term,
provision and condition of this Lease shall be valid and enforceable to the
fullest extent possible permitted by law.
29.12 NO WARRANTY. In executing and delivering this Lease, Tenant has not
-----------
relied on any representations, including, but not limited to, any representation
as to the amount of any item comprising Additional Rent or the amount of the
Addition Rent in the aggregate or that Landlord is furnishing the same services
to other tenants, at all, on the same level or on the same basis, or any
warranty or any statement of Landlord which is not set forth herein or in one or
more of the exhibits attached hereto.
29.13 LANDLORD EXCULPATION. The liability of Landlord or the Landlord
--------------------
Parties to Tenant for any default by Landlord under this Lease or arising in
connection herewith or with Landlord's operation, management, leasing, repair,
renovation, alteration or any other matter relating to the Project or the
Premises shall be limited solely and exclusively to an amount which is equal to
the lesser of (a) the interest of Landlord in the Building or (b) the equity
interest Landlord would have in the Building if the Building were encumbered by
third-party debt in an amount equal to eighty percent (80%) of the value of the
Building (as such value is determined by Landlord), provided that in no event
shall such liability extend to any sales or insurance proceeds
-31-
received by Landlord or the Landlord Parties in connection with the Project,
Building or Premises. Neither Landlord, nor any of the Landlord Parties shall
have any personal liability therefor, and Tenant hereby expressly waives and
releases such personal liability on behalf of itself and all persons claiming
by, through or under Tenant. The limitations of liability contained in this
Section 29.13 shall inure to the benefit of Landlord's and the Landlord Parties'
present and future partners, beneficiaries, officers, directors, trustees,
shareholders, agents and employees, and their respective partners, heirs,
successors and assigns. Under no circumstances shall any present or future
partner of Landlord (if Landlord is a partnership), or trustee or beneficiary
(if Landlord or any partner of Landlord is a trust), have any liability for the
performance of Landlord's obligations under this Lease. Notwithstanding any
contrary provision herein, neither Landlord nor the Landlord Parties shall be
liable under any circumstances for injury or damage to, or interference with,
Tenant's business, including but not limited to, loss of profits, loss of rents
or other revenues, loss of business opportunity, loss of goodwill or loss of
use, in each case, however occurring.
29.14 ENTIRE AGREEMENT. It is understood and acknowledged that there are
----------------
no oral agreements between parties hereto affecting this Lease and this Lease
constitutes the parties' entire agreement with respect to the leasing of the
Premises and supersedes and cancels any and all previous negotiations,
arrangements, brochures, agreements and understandings, if any, between the
parties hereto or displayed by Landlord to Tenant with respect to the subject
matter thereof, and none thereof shall be used to interpret or construe this
Lease. None of the terms, covenants, conditions or provisions of this Lease can
be modified, deleted or added to except in writing signed by the parties hereto.
29.15 RIGHT TO LEASE. Landlord reserves the absolute right to effect such
--------------
other tenancies in the Project as Landlord in the exercise of its sole business
judgment shall determine to best promote the interest of the Building or
Project. Tenant does not rely on the fact, nor does Landlord represent, that any
specific tenant or type or number of tenants shall, during the Lease Term,
occupy any space in the Building or Project.
29.16 FORCE MAJEURE. Any prevention, delay or stoppage due to strikes,
-------------
lockouts, labor disputes, act of God, inability to obtain services, labor, or
materials or reasonable substitutes therefor, governmental actions, civil
commotions, fire or other casualty, and other causes beyond the reasonable
control of the party obligated to perform, except with respect to the
obligations imposed with regard to Rent and other charges to be paid by Tenant
pursuant to this Lease (collectively, a "FORCE MAJEURE"), notwithstanding
anything to the contrary contained in this Lease, shall excuse the performance
of such party for a period equal to any such prevention, delay or stoppage and,
therefore, if this Lease specifies a time period for performance of an
obligation of either party, that time period shall be extended by the period of
any delay in such party's performance caused by a Force Majeure.
29.17 WAIVER OF REDEMPTION BY TENANT. Tenant hereby waives, for Tenant
------------------------------
and for all those claiming under Tenant, any and all rights now or hereafter
existing to redeem by order or judgment of any court or by any legal process or
writ, Tenant's right of occupancy of the Premises after any termination of this
Lease.
29.18 NOTICES. All notices, demands, statements, designations, approvals
-------
or other communications (collectively, "NOTICES") given or required to be given
by either party to the other hereunder or by law shall be in writing, shall be
(A) sent by United States certified or registered mail, postage prepaid, return
receipt requested ("MAIL"), (B) transmitted by telecopy, if such telecopy is
promptly followed by a Notice sent by Mail, (C) delivered by a nationally
recognized overnight courier, or (D) delivered personally. Any Notice shall be
sent, transmitted, or delivered, as the case may be, to Tenant at the
appropriate address set forth in Section 10 of the Summary, or to such other
place as Tenant may from time to time designate in a Notice to Landlord, or to
Landlord at the addresses set forth below, or to such other places as Landlord
may from time to time designate in a Notice to Tenant. Any Notice will be deemed
given (i) three (3) days after the date it is posted if sent by Mail, (ii) the
date the telecopy is transmitted, (iii) the date the overnight courier delivery
is made, or (iv) the date personal delivery is made. As of the date of this
Lease, any Notices to Landlord must be sent, transmitted, or delivered, as the
case may be, to the following addresses:
-32-
Delta Towers Joint Venture
c/o Premisys Real Estate Services, Inc.
2049 Century Park East, Suite 2650
Los Angeles, California 90067-3283
Attention: Property Manager
and
DT Towers Limited Partnership
c/o Citicorp Real Estate, Inc.
725 South Figueroa Street
Los Angeles, California 90017
Attention: Asset Management Division
and
(only as to notices of default and other legal notices)
Citicorp Real Estate, Inc.
599 Lexington Avenue
New York, New York 10043
Attention: General Counsel
and
Allen, Matkins, Leck, Gamble & Mallory
1999 Avenue of the Stars
Suite 1800
Los Angeles, California 90067
Attention: Anton N. Natsis, Esq.
29.19 JOINT AND SEVERAL. If there is more than one Tenant, the
-----------------
obligations imposed upon Tenant under this Lease shall be joint and several.
29.20 AUTHORITY. If Tenant is a corporation, trust or partnership, each
---------
individual executing this Lease on behalf of Tenant hereby represents and
warrants that Tenant is a duly formed and existing entity qualified to do
business in California and that Tenant has full right and authority to execute
and deliver this Lease and that each person signing on behalf of Tenant is
authorized to do so. In such event, Tenant shall, within ten (10) days after
execution of this Lease, deliver to Landlord satisfactory evidence of such
authority and, if a corporation, upon demand by Landlord, also deliver to
Landlord satisfactory evidence of (i) good standing in Tenant's state of
incorporation and (ii) qualification to do business in California.
29.21. ATTORNEY'S FEES. In the event that either Landlord or Tenant should
---------------
bring suit for the possession of the Premises, for the recovery of any sum due
under this Lease, or because of the breach of any provision of this Lease or for
any other relief against the other, then all costs and expenses, including
reasonable attorneys' fees, incurred by the prevailing party therein shall be
paid by the other party, which obligation on the part of the other party shall
be deemed to have accrued on the date of the commencement of such action and
shall be enforceable whether or not the action is prosecuted to judgment.
29.22 GOVERNING LAW; WAIVER OF TRAIL BY JURY. This Lease shall be
--------------------------------------
construed and enforced in accordance with the laws of the State of California.
IN ANY ACTION OR PROCEEDING ARISING HEREFROM, LANDLORD AND TENANT HEREBY CONSENT
TO (I) THE JURISDICTION OF ANY COMPETENT COURT WITHIN THE STATE OF CALIFORNIA,
(II) SERVICE OF PROCESS BY ANY MEANS AUTHORIZED BY CALIFORNIA LAW, AND (III) IN
THE INTEREST OF SAVING TIME AND EXPENSE, TRIAL WITHOUT A JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE
OTHER OR THEIR SUCCESSORS IN RESPECT OF ANY MATTER ARISING OUT OF OR IN
CONNECTION WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, TENANTS USE
OR OCCUPANCY OF THE PREMISES, AND/OR ANY CLAIM FOR INJURY OR
-33-
DAMAGE, OR ANY EMERGENCY OR STATUTORY REMEDY. IN THE EVENT LANDLORD COMMENCES
ANY SUMMARY PROCEEDINGS OR ACTION FOR NONPAYMENT OF BASE RENT OR ADDITIONAL
RENT, TENANT SHALL NOT INTERPOSE ANY COUNTERCLAIM OR ANY NATURE OR DESCRIPTION
(UNLESS SUCH COUNTERCLAIM SHALL BE MANDATORY) IN ANY SUCH PROCEEDING OR ACTION,
BUT SHALL BE RELEGATED TO ANY INDEPENDENT ACTION AT LAW.
29.23 SUBMISSION OF LEASE. Submission of this instrument for examination
-------------------
or signature by Tenant does not constitute a reservation of, option for or
option to lease, and it is not effective as a lease or otherwise until execution
and delivery by both Landlord and Tenant.
29.24 BROKERS. Landlord and Tenant hereby warrant to each other that they
-------
have had no dealings with any real estate broker or agent in connection with the
negotiation of this Lease, excepting only the real estate brokers or agents
specified in Section 12 of the Summary (the "BROKERS"), and that they know of no
other real estate broker or agent who is entitled to a commission in connection
with this Lease. Each party agrees to indemnify and defend the other party
against and hold the other party harmless from any and all claims, demands,
losses, liabilities, lawsuits, judgments, costs and expenses (including without
limitation reasonable attorneys' fees) with respect to any leasing commission or
equivalent compensation alleged to be owing on account of any dealings with any
real estate broker or agent, other than the Brokers, occurring by, through, or
under the indemnifying party.
29.25 INDEPENDENT COVENANTS. This Lease shall be construed as though the
---------------------
covenants herein between Landlord and Tenant are independent and not dependent
and Tenant hereby expressly waives the benefit of any statute to the contrary
and agrees that if Landlord fails to perform its obligations set forth herein,
Tenant shall not be entitled to make any repairs or perform any acts hereunder
at Landlord's expense or to any setoff of the Rent or other amounts owing
hereunder against Landlord.
29.26 PROJECT OR BUILDING NAME AND SIGNAGE. Landlord shall have the right
------------------------------------
at any time to change the name of the Project or Building and to install, affix
and maintain any and all signs on the exterior and on the interior of the
Project or Building as Landlord may, in Landlord's sole discretion, desire.
Tenant shall not use the words "Century Plaza" or the name of the Project or
Building or use pictures or illustrations of the Project or Building in
advertising or other publicity or for any purpose other than as the address of
the business to be conducted by Tenant in the Premises, without the prior
written consent of Landlord.
29.27 COUNTERPARTS. This Lease may be executed in counterparts with the
------------
same effect as if both parties hereto had executed the same document. Both
counterparts shall be construed together and shall constitute a single lease.
29.28 CONFIDENTIALITY. Tenant acknowledges that the content of this Lease
---------------
and any related documents are confidential information. Tenant shall keep such
confidential information strictly confidential and shall not disclose such
confidential information to any person or entity other than Tenant's financial,
legal, and space planning consultants.
29.29 DEVELOPMENT OF THE PROJECT.
--------------------------
29.29.1 SUBDIVISION. Landlord reserves the right to further
-----------
subdivide all or a portion of the Project. Tenant agrees to execute and deliver,
upon demand by Landlord and in the form requested by Landlord, any additional
documents needed to conform this Lease to the circumstances resulting from such
subdivision.
29.29.2 THE OTHER IMPROVEMENTS. If portions of the Project or
----------------------
property adjacent to the Project (collectively, the "OTHER IMPROVEMENTS") are
owned by an entity other than Landlord, Landlord at its option, may enter into
an agreement with the owner or owners of any or all of the Other Improvements to
provide (i) for reciprocal rights of access and/or use of the Project and the
Other Improvements, (ii) for the common management, operation, maintenance,
improvement and/or repair of all or any portion of the Project and the Other
Improvements, provided that Tenant's rights under this Lease are not materially
impaired, (iii) for the allocation of a portion of the Direct Expenses to the
Other Improvements and the operating
-34-
expenses and taxes for the Other Improvements to the Project, and (iv) for the
use or improvement of the Other Improvements and/or the Project in connection
with the improvement, construction, and/or excavation of the Other Improvements
and/or the Project. Nothing contained herein shall be deemed or construed to
limit or otherwise affect Landlord's right to convey all or any portion of the
Project or any other of Landlord's rights described in this Lease.
29.29.3 CONSTRUCTION OF PROJECT AND OTHER IMPROVEMENTS. Tenant
----------------------------------------------
acknowledges that portions of the Project and/or the Other Improvements may be
under construction following Tenant's occupancy of the Premises, and that such
construction may result in levels of noise, dust, obstruction of access, etc.
which are in excess of that present in a fully constructed project. Tenant
hereby waives any and all rent offsets or claims of constructive eviction which
may arise in connection with such construction.
29.30 BUILDING RENOVATIONS. It is specifically understood and agreed that
--------------------
Landlord has no obligation and has made no promises to alter, remodel, improve,
renovate, repair or decorate the Premises, Building, or any part thereof and
that no representations respecting the condition of the Premises or the Building
have been made by Landlord to Tenant except as specifically set forth herein.
However, Tenant hereby acknowledges that Landlord is currently renovating or may
during the Lease Term renovate, improve, alter, or modify (collectively, the
"RENOVATIONS") the Project, the Building and/or the Premises. Tenant hereby
agrees that such Renovations shall in no way constitute a constructive eviction
of Tenant nor entitle Tenant to any abatement of Rent. Landlord shall have no
responsibility and shall not be liable to Tenant for any injury to or
interference with Tenant's business arising from the Renovations, nor shall
Tenant be entitled to any compensation or damages from Landlord for loss of the
use of the whole or any part of the Premises or of Tenant's personal property or
improvements resulting from the Renovations, or for any inconvenience or
annoyance occasioned by such Renovations.
29.31 NO VIOLATION. Tenant hereby warrants and represents that neither its
------------
execution of nor performance under this Lease shall cause Tenant to be in
violation of any agreement, instrument, contract, law, rule or regulation by
which Tenant is bound, and Tenant shall protect, defend, indemnify and hold
Landlord harmless against any claims, demands, losses, damages, liabilities,
costs and expenses, including, without limitation, reasonable attorneys' fees
and costs, arising from Tenant's breach of this warranty and representation.
29.32 COMMUNICATIONS AND COMPUTER LINES. Tenant may install, maintain,
---------------------------------
replace, remove or use any communications or computer wires and cables
(collectively, the "LINES") at the Project in or serving the Premises, provided
that (i) Tenant shall obtain Landlord's prior written consent, use an
experienced and qualified contractor approved in writing by Landlord, and comply
with all of the other provisions of Articles 7 and 8 of this Lease, (ii) an
acceptable number of spare Lines and space for additional Lines shall be
maintained for existing and future occupants of the Project, as determined in
Landlord's reasonable opinion, (iii) the Lines therefor (including riser cables)
shall be appropriately insulated to prevent excessive electromagnetic fields or
radiation, and shall be surrounded by a protective conduit reasonably acceptable
to Landlord, (iv) any new or existing Lines servicing the Premises shall comply
with all applicable governmental laws and regulations, (v) as a condition to
permitting the installation of new Lines, Landlord may require that Tenant
remove existing lines located in or serving the Premises and repair any damage
in connection with such removal, and (vi) Tenant shall pay all costs in
connection therewith. Landlord reserves the right to require that Tenant remove
any Lines located in or serving the Premises which are installed in violation of
these provisions, or which are at any time in violation of any laws or represent
a dangerous or potentially dangerous condition.
29.33 ASBESTOS DISCLOSURES. Landlord has advised Tenant that there is
--------------------
asbestos-containing material ("ACM") in the Building. Attached hereto as EXHIBIT
-------
F is a disclosure statement regarding asbestos in the Building. Tenant
- -
acknowledges that such notice complies with the requirements of Section 25915 of
the California Health and Safety Code.
-35-
29.34 GUARANTY. This Lease is subject to and conditioned upon Tenant
--------
delivering to Landlord, concurrently with Tenant's execution and delivery of
this Lease, a guaranty in the form attached hereto as EXHIBIT G, which guaranty
---------
shall be fully executed by and binding upon Imperial Credit Industries, Inc., a
California corporation, as guarantor.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
executed the day and date first above written.
"LANDLORD":
DELTA TOWERS JOINT VENTURE,
a California General partnership
By: Premisys Real Estate Services, Inc., Agent
By: [SIGNATURE ILLEGIBLE]
------------------------------
Its: VP/GM
--------------------------
"TENANT":
FRANCHISE MORTGAGE ACCEPTANCE
COMPANY, L.L.C.,
a California limited liability company
By: [SIGNATURE ILLEGIBLE]
-----------------------------------
Its: President
-------------------------------
By: /s/ John Rinaldi
-----------------------------------
Its: S V P
-------------------------------
-36-
EXHIBIT A
---------
CENTURY PLAZA TOWERS
--------------------
OUTLINE OF PREMISES
-------------------
[FLOOR PLAN APPEARS HERE]
Premisys
--------
Real Estate Services
[LOGO OF CENTURY PLAZA TOWERS APPEARS HERE]
CONTROL PLAN
2029 CENTURY PARK EAST
LOS ANGELES, CALIFORNIA
FLOOR 11TH
---------
DATE 10/14/94
-----------
CENTURY PARK EAST
2029 2049
P. PATRICK MURRAY INC.
INTERIOR SPACE PLANNING
TEL. (310) 553-3752 FAX. (310) 553-9149
EXHIBIT A - Page 1
EXHIBIT B
---------
INTENTIONALLY OMITTED
---------------------
EXHIBIT C
---------
CENTURY PLAZA TOWERS
--------------------
NOTICE OF LEASE TERM DATES
--------------------------
To: ____________________
____________________
____________________
____________________
Re: Office Lease dated ________, 19__ between ____________, a ___________
("Landlord"), and ______________, a ______________ ("Tenant")
concerning Suite ______ on floor(s) ________ of office building
located at ____________________, Los Angeles, California.
Gentlemen:
In accordance with the Office Lease (the "Lease"), we wish to advise you
and/or confirm as follows:
1. The Lease Term shall commence on or has commenced on ______ for the
term of ______ ending on ______.
2. Rent commenced to accrue on ________, in the amount of _________.
3. If the Lease Commencement Date is other than the first day of the
month, the first billing will contain a pro rata adjustment. Each
billing thereafter, with the exception of the final billing, shall be
for the full amount of the monthly installment as provided for in the
Lease.
4. You rent checks should be made payable to ______ at ________.
5. The exact number of rentable/usable square feet within the Premises is
______ square feet.
6. Tenant's Share as adjusted based upon the exact number of usable
square feet within the Premises is ____%
"Landlord":
______________________________
a_____________________________
By: __________________________
Its: _____________________
Agreed to and Accepted as
of ______, 19__.
"Tenant"
______________________________
a_____________________________
By: __________________________
Its: _____________________
EXHIBIT C - Page 1
EXHIBIT D
---------
CENTURY PLAZA TOWERS
--------------------
RULES AND REGULATIONS
---------------------
Tenant shall faithfully observe and comply with the following Rules and
Regulations. Landlord shall not be responsible to Tenant for the nonperformance
of any of said Rules and Regulations by or otherwise with respect to the acts or
omissions of any other tenants or occupants of the Project. In the event of any
conflict between the Rules and Regulations and the other provisions of this
Lease, the latter shall control.
1. Tenant shall not alter any lock or install any new or additional locks
or bolts on any doors or windows of the Premises without obtaining Landlord's
prior written consent. Tenant shall bear the cost of any lock changes or repairs
required by Tenant. Two keys will be furnished by Landlord for the Premises, and
any additional keys required by Tenant must be obtained from Landlord at a
reasonable cost to be established by Landlord. Upon the termination of this
Lease, Tenant shall restore to Landlord all keys of stores, offices, and toilet
rooms, either furnished to, or otherwise procured by, Tenant and in the event of
the loss of keys so furnished, Tenant shall pay to Landlord the cost of
replacing same or of changing the lock or locks opened by such lost key if
Landlord shall deem it necessary to make such changes.
2. All doors opening to public corridors shall be kept closed at all
times except for normal ingress and egress to the Premises.
3. Landlord reserves the right to close and keep locked all entrance and
exit doors of the Building during such hours as are customary for comparable
buildings in the Century City, California area. Tenant, its employees and agents
must be sure that the doors to the Building are securely closed and locked when
leaving the Premises if it is after the normal hours of business for the
Building. Any tenant, its employees, agents or any other persons entering or
leaving the Building at any time when it is so locked, or any time when it is
considered to be after normal business hours for the Building, may be required
to sign the Building register. Access to the Building may be refused unless the
person seeking access has proper identification or has a previously arranged
pass for access to the Building. Landlord will furnish passes to persons for
whom Tenant requests same in writing. Tenant shall be responsible for all
persons for whom Tenant requests passes and shall be liable to Landlord for all
acts of such persons. The Landlord and his agents shall in no case be liable for
damages for any error with regard to the admission to or exclusion from the
Building of any person. In case of invasion, mob, riot, public excitement, or
other commotion, Landlord reserves the right to prevent access to the Building
or the Project during the continuance thereof by any means it deems appropriate
for the safety and protection of life and property.
4. No furniture, freight or equipment of any kind shall be brought into
the Building without prior notice to Landlord. All moving activity into or out
of the Building shall be scheduled with Landlord and done only at such time and
in such manner as Landlord designates. Landlord shall have the right to
prescribe the weight, size and position of all safes and other heavy property
brought into the Building and also the times and manner of moving the same in
and out of the Building. Safes and other heavy objects shall, if considered
necessary by Landlord, stand on supports of such thickness as is necessary to
properly distribute the weight. Landlord will not be responsible for loss of or
damage to any such safe or property in any case. Any damage to any part of the
Building, its contents, occupants or visitors by moving or maintaining any such
safe or other property shall be the sole responsibility and expense of Tenant.
5. No furniture, packages, supplies, equipment or merchandise will be
received in the Building or carried up or down in the elevators, except between
such hours, in such specific elevator and by such personnel as shall be
designated by Landlord.
6. The requirements of Tenant will be attended to only upon application
at the management office for the Project or at such office location designated
by Landlord. Employees of Landlord shall not perform any work or do anything
outside their regular duties unless under special instructions from Landlord.
EXHIBIT D - Page 1
7. No sign, advertisement, notice or handbill shall be exhibited,
distributed, painted or affixed by Tenant on any part of the Premises or the
Building without the prior written consent of the Landlord. Tenant shall not
disturb, solicit, peddle, or canvass any occupant of the Project and shall
cooperate with Landlord and its agents of Landlord to prevent same.
8. The toilet rooms, urinals, wash bowls and other apparatus shall not be
used for any purpose other than that for which they were constructed, and no
foreign substance of any kind whatsoever shall be thrown therein. The expense of
any breakage, stoppage or damage resulting from the violation of this rule shall
be borne by the tenant who, or whose servants, employees, agents, visitors or
licensees shall have caused same.
9. Tenant shall not overload the floor of the Premises, nor mark, drive
nails or screws, or drill into the partitions, woodwork or drywall or in any way
deface the Premises or any part thereof without Landlord's prior written
consent. Tenant shall not purchase spring water, ice, towel, linen, maintenance
or other like services from any person or persons not approved by Landlord.
10. Except for vending machines intended for the sole use of Tenant's
employees and invitees, no vending machine or machines other than fractional
horsepower office machines shall be installed, maintained or operated upon the
Premises without the written consent of Landlord.
11. Tenant shall not use or keep in or on the Premises, the Building, or
the Project any kerosene, gasoline or other inflammable or combustible fluid,
chemical, substance or material.
12. Tenant shall not without the prior written consent of Landlord use any
method of heating or air conditioning other than that supplied by Landlord.
13. Tenant shall not use, keep or permit to be used or kept, any foul or
noxious gas or substance in or on the Premises, or permit or allow the Premises
to be occupied or used in a manner offensive or objectionable to Landlord or
other occupants of the Project by reason of noise, odors, or vibrations, or
interfere with other tenants or those having business therein, whether by the
use of any musical instrument, radio, phonograph, or in any other way. Tenant
shall not throw anything out of doors, windows or skylights or down passageways.
14. Tenant shall not bring into or keep within the Project, the Building
or the Premises any animals, birds, aquariums, or, except in areas designated by
Landlord, bicycles or other vehicles.
15. No cooking shall be done or permitted on the Premises, nor shall the
Premises be used for storage of merchandise, for lodging or for any improper,
objectionable or immoral purposes. Notwithstanding the foregoing, Underwriters'
laboratory-approved equipment and microwave ovens may be used in the Premises
for heating food and brewing coffee, tea, hot chocolate and similar beverages
for employees and visitors, provided that such use is in accordance with all
applicable federal, state, county and city laws, codes, ordinances, rules and
regulations.
16. The Premises shall not be used for manufacturing or for the storage of
merchandise except as such storage may be incidental to the use of the Premises
provided for in the Summary. Tenant shall not occupy or permit any portion of
the Premises to be occupied as an office for a messenger-type operation or
dispatch office, public stenographer or typist, or for the manufacture or sale
of liquor, narcotics, or tobacco in any form, or as a medical office, or as a
barber or manicure shop, or as an employment bureau without the express prior
written consent of Landlord. Tenant shall not engage or pay any employees on the
Premises except those actually working for such tenant on the Premises nor
advertise for laborers giving an address at the Premises.
17. Landlord reserves the right to exclude or expel from the Project any
person who, in the judgment of Landlord, is intoxicated or under the influence
of liquor or drugs, or who shall in any manner do any act in violation of any of
these Rules and Regulations.
18. Tenant, its employees and agents shall not loiter in or on the
entrances, corridors, sidewalks, lobbies, courts, halls, stairways, elevators,
vestibules or any Common Areas for the
EXHIBIT D - Page 2
purpose of smoking tobacco products or for any other purpose, nor in any way
obstruct such areas, and shall use them only as a means of ingress and egress
for the Premises.
19. Tenant shall not waste electricity, water or air conditioning and
agrees to cooperate fully with Landlord to ensure the most effective operation
of the Building's heating and air conditioning system, and shall refrain from
attempting to adjust any controls.
20. Tenant shall store all its trash and garbage within the interior of
the Premises. 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 Century
City, California without violation of any law or ordinance governing such
disposal. All trash, garbage and refuse disposal shall be made only through
entry-ways and elevators provided for such purposes at such times as Landlord
shall designate.
21. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental agency.
22. Any persons employed by Tenant to do janitorial work shall be subject
to the prior written approval of Landlord, and while in the Building and outside
of the Premises, shall be subject to and under the control and direction of the
Building manager (but not as an agent or servant of such manager or of
Landlord), and Tenant shall be responsible for all acts of such persons.
23. No awnings or other projection shall be attached to the outside walls
of the Building without the prior written consent of Landlord, and no curtains,
blinds, shades or screens shall be attached to or hung in, or used in connection
with, any window or door of the Premises other than Landlord standard drapes.
All electrical ceiling fixtures hung in the Premises or spaces along the
perimeter of the Building must be fluorescent and/or of a quality, type, design
and a warm white bulb color approved in advance in writing by Landlord. Neither
the interior nor exterior of any windows shall be coated or otherwise
sunscreened without the prior written consent of Landlord. Tenant shall abide by
Landlord's regulations concerning the opening and closing of window coverings
which are attached to the windows in the Premises, if any, which have a view of
any interior portion of the Building or Building Common Areas.
24. The sashes, sash doors, skylights, windows, and doors that reflect or
admit light and air into the halls, passageways or other public places in the
Building shall not be covered or obstructed by Tenant, nor shall any bottles,
parcels or other articles be placed on the windowsills.
25. Tenant must comply with requests by the Landlord concerning the
informing of their employees of items of importance to the Landlord.
26. Tenant must comply with the State of California "No Smoking" law set
forth in California Labor Code Section 6404.5, and any local "No Smoking"
ordinance which may be in effect from time to time and which is not superseded
by such State law.
27. Tenant hereby acknowledges that Landlord shall have no obligation to
provide guard service or other security measures for the benefit of the
Premises, the Building or the Project. Tenant hereby assumes all responsibility
for the protection of Tenant and its agents, employees, contractors, invitees
and guests, and the property thereof, from acts of third parties, including
keeping doors locked and other means of entry to the Premises closed, whether or
not Landlord, at its option, elects to provide security protection for the
Project or any portion thereof. Tenant further assumes the risk that any safety
and security devices, services and programs which Landlord elects, in its sole
discretion, to provide may not be effective, or may malfunction or be
circumvented by an unauthorized third party, and Tenant shall, in addition to
its other insurance obligations under this Lease, obtain its own insurance
coverage to the extent Tenant desires protection against losses related to such
occurrences. Tenant shall cooperate in any reasonable safety or security program
developed by Landlord or required by law.
28. All office equipment of any electrical or mechanical nature shall be
placed by Tenant in the Premises in settings approved by Landlord, to absorb or
prevent any vibration, noise and annoyance.
EXHIBIT D - Page 3
29. Tenant shall not use in any space or in the public halls of the
Building, any hand trucks except those equipped with rubber tires and rubber
side guards.
30. No auction, liquidation, fire sale, going-out-of-business or
bankruptcy sale shall be conducted in the Premises without the prior written
consent of the Landlord.
31. No tenant shall use or permit the use of any portion of the Premises
for living quarters, sleeping apartments or lodging rooms.
Landlord reserves the right at any time to change or rescind any one or
more of these Rules and Regulations, or to make such other and further
reasonable Rules and Regulations as in Landlord's judgment may from time to time
be necessary for the management, safety, care and cleanliness of the Premises,
Building, the Common Areas and the Project, and for the preservation of good
order therein, as well as for the convenience of other occupants and tenants
therein. Landlord may waive any one or more of these Rules and Regulations for
the benefit of any particular tenants, but no such waiver by Landlord shall be
construed as a waiver of such Rules and Regulations in favor of any other
tenant, nor prevent Landlord from thereafter enforcing any such Rules or
Regulations against any or all tenants of the Project. Tenant shall be deemed to
have read these Rules and Regulations and to have agreed to abide by them as a
condition of its occupancy of the Premises.
EXHIBIT D - Page 4
EXHIBIT E
---------
CENTURY PLAZA TOWERS
--------------------
FORM OF TENANT'S ESTOPPEL CERTIFICATE
-------------------------------------
The undersigned as Tenant under that certain Office Lease (the "Lease")
made and entered into as of ________, 199__ by and between _________ as
Landlord, and the undersigned as Tenant, for Premises on the _______ floor(s) of
the office building located at ____________, Los Angeles, California
_____________, certifies as follows:
1. Attached hereto as Exhibit A is a true and correct copy of the Lease
and all amendments and modifications thereto. The documents contained in Exhibit
A represent the entire agreement between the parties as to the Premises.
2. The undersigned currently occupies the Premises described in the
Lease, the Lease Term commenced on _______, and the Lease Term expires on
_______.
3. Base Rent became payable on ______________.
4. The Lease is in full force and effect and has not been modified,
supplemented or amended in any way except as provided in Exhibit A.
5. Tenant has transferred, assigned, or sublet any portion of the
Premises nor entered into any license or concession agreements with respect
thereto except as follows:
6. Tenant shall not modify the documents contained in Exhibit A without
the prior written consent of Landlord's mortgagee.
7. All monthly installments of Base Rent, all Additional Rent and all
monthly installments of estimated Additional Rent have been paid when due
through ____________. The current monthly installment of Base Rent is
$____________.
8. All conditions of the Lease to be performed by Landlord necessary to
the enforceability of the Lease have been satisfied and Landlord is not in
default thereunder.
9. No rental has been paid more than thirty (30) days in advance and no
security has been deposited with Landlord except as provided in the Lease.
10. As of the date hereof, there are no existing defenses or offsets that
the undersigned has against Landlord.
11. If Tenant is a corporation or partnership, each individual executing
this Estoppel Certificate on behalf of Tenant hereby represents and warrants
that Tenant is a duly formed and existing entity qualified to do business in
California and that Tenant has full right and authority to execute and deliver
this Estoppel Certificate and that each person signing on behalf of Tenant is
authorized to do so.
The undersigned acknowledges that this Estoppel Certificate may be
delivered to Landlord or to a prospective mortgagee or prospective purchaser,
and acknowledges that said prospective mortgagee or prospective purchaser will
be relying upon the statements contained herein in making the loan or acquiring
the property of which the Premises are a part and that receipt by it of this
certificate is a condition of making such loan or acquiring such property.
EXHIBIT E - Page 1
Executed at _________ on the ___ day of _____, 19_.
"Tenant":
_____________________________
a____________________________
By:__________________________
Its:______________________
By:__________________________
Its:______________________
EXHIBIT E - Page 2
EXHIBIT F
---------
CALIFORNIA ASBESTOS NOTICE
--------------------------
In 1988, California enacted Legislation (specifically, Chapter 10.4 of the
Health and Safety Code, Section 25915 et seq.) requiring landlords and tenants
of commercial buildings constructed prior to 1979 to notify certain people,
including each other and their respective employees working within such
building, of any knowledge they may have regarding any asbestos-containing
construction materials ("ACM") in the Building. This notification is being given
to provide the information required under this Legislation in order to help you
avoid any unintentional contact with the ACM, to assure that appropriate
precautionary measures are taken before disturbing any ACM, and to assist you
in making appropriate disclosures to your employees and others, if any.
We have engaged qualified asbestos consultants to survey the property for
asbestos and to assist in implementing an asbestos management plan that
includes, among other things, periodic reinspection and surveillance, air
monitoring, information and training programs for building engineering and
maintenance staff, cleaning procedures, emergency fiber release procedures, work
procedures and other measures to minimize potential fiber releases. A
description of the current Operations and Management Plans prepared for the
Building (the "O&M Plans") is set forth on Schedule A attached hereto. Our
asbestos consultant has certified to us that the O&M Plans fully comply with the
disclosure requirements of Health and Safety Code Section 25915.1.
We have no reason to believe, based upon the O&M Plans, that the ACM in the
Building is currently in a condition to release asbestos fibers which would pose
a significant health hazard to the Building's occupants; this should remain so
if such ACM is properly handled and remains undisturbed. You should take into
consideration that our knowledge as to the absence of health risks is based
solely upon general information and the information contained in the O&M Plans,
and that we have no special knowledge concerning potential health risks
resulting from exposure to asbestos in the Building. We are therefore required
by the above-mentioned legislation to encourage you to contact local or state
public agencies if you wish to obtain a better understanding of the potential
impact resulting from exposure to asbestos.
Because any tenant alterations or other work at the property could disturb
ACM and possibly release asbestos fibers into the air, we must require that you
obtain our written approval prior to beginning such projects. This includes
major alterations, but might also include such activities as drilling or boring
holes, installing electrical, telecommunications or computer lines, sanding
floors, removing ceiling tiles or other work which disturbs ACM. In many cases,
such activities will not affect ACM, but you must check with the property
manager in advance, just in case. You should check with the property manager at
the address set forth on Schedule A. The property manager will make available
such instruction as may be required. Any such work should not be attempted by an
individual or contractor who is not qualified to handle ACM. In the areas
specified in Schedule A, you should avoid touching or disturbing the ACM in any
way. If you observe any activity which has the potential to disturb the ACM,
please report the same to the property manager immediately.
Further information concerning asbestos handling procedures in general can
be found in the building's Asbestos Surveys, located in the building office. At
this time, we are unaware of specific handling restrictions or procedures which
might be necessary in any particular situation to avoid exposure to the asbestos
in the Building. We are therefore required by the above-mentioned legislation to
encourage you to contact local, state or federal public health agencies if you
which to obtain further information regarding handling procedures and
restrictions.
In connection with the foregoing, we have adopted the following policies
(which shall be considered rules under tenant leases): (1) the owner; and
representatives of the owner, including, without limitation, the owner's ACM
consultant, are entitled to enter into the premises of any tenant to inspect for
ACM, perform air tests and abatement; (2) any tenant, contractor, or other party
must obtain our prior written approval before performing any alterations on any
tenant space, or performing any other work at the property that might disturb
ACM or involve exposure to asbestos fibers as described above.
We trust that the implementation of the aforesaid requirements will not
unduly inconvenience you. Thank you for your cooperation in this mutual
endeavor.
EXHIBIT F - Page 2
SCHEDULE A
TO
NOTICE CONCERNING ASBESTOS
BUILDING: Century Plaza Towers
GENERAL MANAGER: Mr. Steve Sumell
ADDRESS OF BUILDING OFFICE: 2049 Century Park East
Suite 2650
Los Angeles, CA 90067
Telephone: (310) 552-8100
I. EXISTING OPERATIONS AND MANAGEMENT PLAN ("O&M PLAN") AND ASBESTOS SURVEYS
WHICH DESCRIBE THE EXISTENCE, LOCATION AND CONDITION OF ACM
The O&M Plan which has been prepared for the Building since October of 1987
is generally described as follows:
DATE DESCRIPTION
---- -----------
A. O&M PLAN
--------
1. 1/17/89 (Revised 8/1/89) K&D West: Operations & Maintenance
Program.
2. 10/2/90 K&D West: O&M Task Simulation for
Personnel Exposure Report, South Tower,
2nd floor, Suite 280.
3. 8/20/93 K&D West: Semi Annual Inspection O&M
Program 2nd Quarter 1993
B. SURVEYS
-------
1. 10/18/87; 2/3/88 Galson Survey Report (Tower Garage Area)
2. 6/88 - 10/88 1/31/89 K&D Survey (North & South Towers)
(Revised)
3. 11/89 - 2/90 9/6/91 K&D West Survey (Elevator Shafts)
4. 1/4/90 3/90 K&D West (Elevator Lobbies and Shafts)
5. 3/23/90 K&D West (3rd Floor)
6. 4/18/90 K&D West ("A" Level Garage Entry)
7. 1/11/91 Pre-Design Survey (Plaza Level)
8. 10/30/92 - 11/30/92 Survey (3rd & 4th Floors)
12/92; 2/93
9. 10/31/92 - 11/30/92 Summary of Surveys (Plaza Levels)
II CONTENTS OF O&M PLAN
The Table of Contents of the O&M Plan contains the following sections:
EXHIBIT F - PAGE 3
1. Purpose
2. Operations and Maintenance Program Overview
3. Definitions
4. Asbestos-Containing Materials at Century Plaza Towers
5. Asbestos Awareness and Operations & Maintenance Training Program
6. Respiratory Protection Program
7. Medical Surveillance Program
8. Building Survey; Remedial Action
9. Asbestos Control For Maintenance/Engineering Personnel and Outside
Contractors
10. Spot Removal of Asbestos-Containing Materials
11. Cleaning
12. Episodic Contamination Control
13. Non-Asbestos Outside Contractor Work
14. Control Equipment For Asbestos Work
15. The Use of HEPA Equipment
16. Disposal of Asbestos Materials
17. On-Going Building Surveillance
18. Air Monitoring
19. Program Review
20. Recordkeeping
21. Description of Services
22. Appendices
III SPECIFIC LOCATIONS WHERE ACM IS PRESENT IN ANY QUANTITY
1. Sprayed-on fireproofing exists on structural steel with minor
overspray on decking in the following areas:
- Garage Levels A & B
- North Tower - Plaza Level (inaccessible core areas and above
portions of high ceilings)
- South Tower - Plaza Level (inaccessible core areas and above
portions of high ceilings)
- South Tower - 3rd and 4th floors (inaccessible core areas and
above portions of high ceilings)
- South Tower - 2nd floor (inaccessible core areas)
- North & South Tower - Various inaccessible elevator and
mechanical shafts.
In conjunction with the Building's O&M Plan, the ACM
fireproofing in all public corridors on Levels A & B, in all
stairwells down to the Plaza Level was removed and replaced with non-
asbestos containing fireproofing. In addition,
EXHIBIT F - Page 4
during the past year, the following areas have undergone removal of
ACM fireproofing during renovation work;
a. South Tower and North Tower main elevator lobbies
b. 2nd floor, South Tower
c. Removal on Plaza Levels
THE O&M PLAN AND THE RESULTS OF MONITORING DESCRIBED ABOVE, INCLUDING MONITORING
DATA AND SAMPLING PROCEDURES AND THE ASBESTOS SURVEYS, ARE AVAILABLE FOR REVIEW
DURING NORMAL BUSINESS HOURS IN THE BUILDING OFFICE, AT THE ABOVE ADDRESS,
MONDAY THROUGH FRIDAY EXCEPT LEGAL HOLIDAYS. NO REPRESENTATIONS OR WARRANTIES
WHATSOEVER ARE MADE REGARDING THE O&M PLAN, THE REPORTS CONCERNING SUCH O&M
PLAN OR THE SURVEYS (INCLUDING WITHOUT LIMITATION, THE CONTENTS OR ACCURACY
THEREOF), OR THE PRESENCE OR ABSENCE OF TOXIC OR HAZARDOUS MATERIALS IN, AT, OR
UNDER ANY PREMISES OR THE BUILDING.
EXHIBIT F - Page 5
EXHIBIT G
---------
FORM OF GUARANTY OF LEASE
-------------------------
THIS GUARANTY OF LEASE (this "Guaranty") is made as of August 24, 1995, by
IMPERIAL CREDIT INDUSTRIES, INC., a California corporation (the "Guarantor"),
whose address is as set forth in Paragraph 10 hereof, in favor of Delta Towers
Joint Venture, a California General Partnership ("Landlord"), having an office
c/o Premisys Real Estate Services, Inc., 2049 Century Park East, Suite 2650, Los
Angeles, California 90067.
WHEREAS, Landlord and FRANCHISE MORTGAGE ACCEPTANCE COMPANY, L.L.C., a
California limited liability company ("Tenant") desire to enter into that
certain Office Lease dated August 24, 1995 (the "Lease") concerning the premises
on the eleventh (11th) floor, Suite 1190, of the office building located at 2029
Century Park East, in the City of Los Angeles, County of Los Angeles, State of
California;
WHEREAS, Guarantor has a financial interest in the Tenant; and
WHEREAS, Landlord would not execute the Lease if Guarantor did not execute
and deliver to Landlord this Guaranty.
NOW, THEREFORE, for and in consideration of the execution of the foregoing
Lease by Landlord and as a material inducement to Landlord to execute said
Lease, Guarantor hereby absolutely, presently, continually, unconditionally and
irrevocably guarantees the prompt payment by Tenant of all rentals and other
sums payable by Tenant under said Lease and the faithful and prompt performance
by Tenant of each and every one of the terms, conditions and covenants of said
Lease to be kept and performed by Tenant, and further agrees as follows:
1. It is specifically agreed and understood that the terms, covenants and
conditions of the Lease may be altered, affected, modified, amended,
compromised, released or otherwise changed by agreement between Landlord and
Tenant, or by course of conduct and Guarantor does guaranty and promise to
perform all of the obligations of Tenant under the Lease as so altered,
affected, modified, amended, compromised, released or changed and the Lease may
be assigned by or with the consent of Landlord or any assignee of Landlord
without consent or notice to Guarantor and that this Guaranty shall thereupon
and thereafter guaranty the performance of said Lease as so changed, modified,
amended, compromised, released, altered or assigned.
2. This Guaranty shall not be released, modified or affected by failure
or delay on the part of Landlord to enforce any of the rights or remedies of
Landlord under the Lease, whether pursuant to the terms thereof or at law or in
equity, or by any release of any person liable under the terms of the Lease
(including, without limitation, Tenant) or any other guarantor, including
without limitation, any other Guarantor named herein, from any liability with
respect to Guarantor's obligations hereunder.
3. Guarantor's liability under this Guaranty shall continue until all
rents due under the Lease have been paid in full in cash and until all other
obligations to Landlord have been satisfied, and shall not be reduced by virtue
of any payment by Tenant of any amount due under the Lease. If all or any
portion of Tenant's obligations under the Lease is paid or performed by Tenant,
the obligations of Guarantor hereunder shall continue and remain in full force
and effect in the event that all or any part of such payment(s) or
performance(s) is avoided or recovered directly or indirectly from Landlord as a
preference, fraudulent transfer or otherwise.
4. Guarantor warrants and represents to Landlord that Guarantor now has
and will continue to have full and complete access to any and all information
concerning the Lease, the value of the assets owned or to be acquired by Tenant,
Tenant's financial status and its ability to pay and perform the obligations
owed to Landlord under the Lease. Guarantor further warrants and represents that
Guarantor has reviewed and approved copies of the Lease and is fully informed of
the remedies Landlord may pursue, with or without notice to Tenant, in the event
of default under the Lease. So long as any of the Guarantor's obligations
hereunder remains
EXHIBIT G - Page 1
unsatisfied or owing to Landlord, Guarantor shall keep fully informed as to all
aspects of Tenant's financial condition and the performance of said obligations.
5. Guarantor hereby covenants and agrees with Landlord that if a default
shall at any time occur in the payment of any sums due under the Lease by Tenant
or in the performance of any other obligation of Tenant under the Lease,
Guarantor shall and will forthwith upon demand pay such sums and any arrears
thereof, to Landlord in legal currency of the United States of America for
payment of public and private debts, and take all other actions necessary to
cure such default and perform such obligations of Tenant.
6. The liability of Guarantor under this Guaranty is a guaranty of
payment and performance and not of collectibility, and is not conditioned or
contingent upon the genuineness, validity, regularity or enforceability of the
Lease or the pursuit by Landlord of any remedies which it now has or may
hereafter have with respect thereto, at law, in equity or otherwise.
7. Guarantor hereby waives and agrees not to assert or take advantage of
to the extent permitted by law: (i) all notices to Guarantor, to Tenant, or to
any other person, including, but not limited to, notices of the acceptance of
this Guaranty or the creation, renewal, extension, assignment, modification or
accrual of any of the obligations owed to Landlord under the Lease and, except
to the extent set forth in Paragraph 9 hereof, enforcement of any right or
remedy with respect thereto, and notice of any other matters relating thereto;
(ii) notice of acceptance of this Guaranty; (iii) demand of payment,
presentation and protest; (iv) any right to require Landlord to apply to any
default any security deposit or other security it may hold under the Lease; (v)
any statute of limitations affecting Guarantor's liability hereunder or the
enforcement thereof; (vi) any right or defense that may arise by reason of the
incapability, lack of authority, death or disability of Tenant or any other
person; and (vii) all principles or provisions of law which conflict with the
terms of this Guaranty. Guarantor further agrees that Landlord may enforce this
Guaranty upon the occurrence of a default under the Lease, notwithstanding any
dispute between Landlord and Tenant with respect to the existence of said
default or performance of the obligations under the Lease or any counterclaim,
set-off or other claim which Tenant may allege against Landlord with respect
thereto. Moreover, Guarantor agrees that Guarantor's obligations shall not be
affected by any circumstances which constitute a legal or equitable discharge of
a guarantor or surety.
8. Guarantor agrees that Landlord may enforce this Guaranty without the
necessity of proceeding against Tenant or any other guarantor. Guarantor hereby
waives the right to require Landlord to proceed against Tenant, to proceed
against any other guarantor, to exercise any right or remedy under the Lease or
to pursue any other remedy or to enforce any other right.
9. (a) Guarantor agrees that nothing contained herein shall prevent
Landlord from suing on the Lease or from exercising any rights available to
it thereunder and that the exercise of any of the aforesaid rights shall
not constitute a legal or equitable discharge of Guarantor. Without
limiting the generality of the foregoing, Guarantor hereby expressly waives
any and all benefits under California Civil Code (S) (S) 2809, 2810, 2819,
2845, 2847, 2848, 2849 and 2850.
(b) Guarantor agrees that Guarantor shall have no right of
subrogation against Tenant or any right of contribution against any other
guarantor unless and until all amounts due under the Lease have been paid
in full and all other obligations under the Lease have been satisfied.
Guarantor further agrees that, to the extent the waiver of Guarantor's
rights of subrogation and contribution as set forth herein is found by a
court of competent jurisdiction to be void or voidable for any reason, any
rights of subrogation Guarantor may have against Tenant shall be junior and
subordinate to any rights Landlord may have against Tenant, and any rights
of contribution Guarantor may have against any other guarantor shall be
junior and subordinate to any rights Landlord may have against such other
guarantor.
(c) The obligations of Guarantor under this Guaranty shall not be
altered, limited or affected by any case, voluntary or involuntary,
involving the bankruptcy, insolvency, receivership, reorganization,
liquidation or arrangement of Tenant or any defense which Tenant may have
by reason of order, decree or decision of any court or administrative body
resulting from any such case. Landlord shall have the sole right to
EXHIBIT G - Page 2
accept or reject any plan on behalf of Guarantor proposed in such case and
to take any other action which Guarantor would be entitled to take,
including, without limitation, the decision to file or not file a claim.
Guarantor acknowledges and agrees that any payment which accures with
respect to Tenant's obligations under the Lease (including, without
limitation, the payment of rent) after the commencement of any such
proceeding (or, if any such payment ceases to accrue by operation of law by
reason of the commencement of such proceeding, such payment as would have
accrued if said proceedings had not been commenced) shall be included in
Guarantor's obligations hereunder because it is the intention of the
parties that said obligations should be determined without regard to any
rule or law or order which may relieve Tenant of any of its obligations
under the Lease. Guarantor hereby permits any trustee in bankruptcy,
receiver, debtor-in-possession, assignee for the benefit of creditors or
similar person to pay Landlord, or allow the claim of Landlord in respect
of, any such payment accruing after the date on which such proceeding is
commenced. Guarantor hereby assigns to Landlord Guarantor's right to
receive payments from any trustee in bankruptcy, receiver, debtor-in-
possession, assignee for the benefit of creditors or similar person by way
of dividend, adequate protection payment or otherwise.
10. Any notice, statement, demand, consent, approval or other communication
required or permitted to be given, rendered or made by either party to the
other, pursuant to this Guaranty or pursuant to any applicable law or
requirement of public authority, shall be in writing (whether or not so stated
elsewhere in this Guaranty) and shall be deemed to have been properly given,
rendered or made only if hand-delivered or sent by first-class mail, postage
pre-paid, addressed to the other party at its respective address set forth
below, and shall be deemed to have been given, rendered or made on the day it is
hand-delivered or one day after it is mailed, unless it is mailed outside of Los
Angeles County, California, in which case it shall be deemed to have been given,
rendered or made on the third business day after the day it is mailed. By giving
notice as provided above, either party may designate a different address for
notices, statements, demands, consents, approvals or other communications
intended for it.
To Guarantor: Imperial Credit industries, Inc.
20371 Irvine Avenue
Suite 104
Santa Ana Heights, California 92707
To Landlord: Delta Towers Joint Venture
c/o Premisys Real Estate Services. Inc.
2049 Century Park East, Suite 2650
Los Angeles, California 90067
Attention: Property Manager
11. Guarantor represents and warrants to Landlord as follows:
(a) No consent of any other person, including without limitation, any
creditors of Guarantor, and no license, permit, approval or authorization
of, exemption by, notice or report to, or registration, filing or
declaration with, any governmental authority is required by Guarantor in
connection with this Guaranty or the execution, delivery, performance,
validity or enforceability of this Guaranty and all obligations required
hereunder. This Guaranty has been duly executed and delivered by Guarantor,
and constitutes the legally valid binding obligation of Guarantor
enforceable against such Guarantor in accordance with its terms.
(b) The execution, delivery and performance of this Guaranty will not
violate any provision of any existing law or regulation binding on
Guarantor, or any order, judgment, award or decree of any court, arbitrator
or governmental authority binding on Guarantor, or of any mortgage,
indenture, lease, contract or other agreement, instrument or undertaking to
which Guarantor is a party or by which Guarantor or any of Guarantor's
assets may be bound, and will not result in, or require, the creation or
imposition of any lien on any of Guarantor's property, assets or revenues
pursuant to the provisions of any such mortgage, indenture, lease,
contract, or other agreement, instrument or undertaking.
EXHIBIT G - Page 3
12. The obligations of Tenant under the Lease to execute and deliver
estoppel statements, as therein provided, shall be deemed to also require the
Guarantor hereunder to do and provide the same relative to Guarantor.
13. This Guaranty shall be binding upon Guarantor, Guarantor's heirs,
representatives, administrators, executors, successors, and assigns and shall
inure to the benefit of and shall be enforceable by Landlord, its successors,
endorsees and assigns. Any married person executing this Guaranty agrees that
recourse may be had against community assets and against his separate property
for the satisfaction of all obligations herein guaranteed. As used herein, the
singular shall include the plural, and the masculine shall include the feminine
and neuter and vice versa, if the context so requires.
14. The term "Landlord" whenever used herein refers to and means the
Landlord specifically named in the Lease and also any assignee of said Landlord,
whether by outright assignment or by assignment for security, and also any
successor to the interest of said Landlord or of any assignee in the Lease or
any part thereof, whether by assignment or otherwise. So long as the Landlord's
interest in or to the Premises (as that term is used in the Lease) or the rents,
issues and profits therefrom, or in, to or under the Lease, are subject to any
mortgage or deed of trust or assignment for security, no acquisition by
Guarantor of the Landlord's interest in the Premises or under the Lease shall
affect the continuing obligations of Guarantor under this Guaranty, which
obligations shall continue in full force and effect for the benefit of the
mortgagee, beneficiary, trustee or assignee under such mortgage, deed of trust
or assignment, or any purchaser at sale by judicial foreclosure or under private
power of sale, and of the successors and assigns of any such mortgagee,
beneficiary, trustee, assignee or purchaser.
15. The term "Tenant" whenever used herein refers to and means the Tenant
in the Lease specifically named and also any assignee or sublessee of said Lease
and also any successor to the interests of said Tenant, assignee or sublessee of
such Lease or any part thereof, whether by assignment, sublease or otherwise.
16. In the event of any dispute or litigation regarding the enforcement or
validity of this Guaranty, Guarantor shall be obligated to pay all charges,
costs and expenses (including, without limitation, reasonable attorneys' fees)
incurred by Landlord, whether or not any action or proceeding is commenced
regarding such dispute and whether or not such litigation is prosecuted to
judgment.
17. This Guaranty shall be governed by and construed in accordance with
the laws of the State of California, and in a case involving diversity of
citizenship, shall be litigated in and subject to the jurisdiction of the courts
of California.
18. Every provision of this Guaranty is intended to be severable. In the
event any term or provision hereof is declared to be illegal or invalid for any
reason whatsoever by a court of competent jurisdiction, such illegality or
invalidity shall not affect the balance of the terms and provisions hereof,
which terms and provisions shall remain binding and enforceable.
19. This Guaranty may be executed in any number of counterparts each of
which shall be deemed an original and all of which shall constitute one and the
same Guaranty with the same effect as if all parties had signed the same
signature page. Any signature page of this Guaranty may be detached from any
counterpart of this Guaranty and re-attached to any other counterpart of this
Guaranty identical in form hereto but having attached to it one or more
additional signature pages.
20. No failure or delay on the part of Landlord to exercise any power,
right or privilege under this Guaranty shall impair and such power, right or
privilege, or be construed to be a waiver of any default or any acquiescence
therein, nor shall any single or partial exercise of such power, right or
privilege preclude other or further exercise thereof or of any other right,
power or privilege.
21. This Guaranty shall constitute the entire agreement between Guarantor
and the Landlord with respect to the subject matter hereof. No provision of this
Guaranty or right of
EXHIBIT G - Page 4
Landlord hereunder may be waived nor may Guarantor be released from any
obligation hereunder except by a writing duly executed by an authorized officer,
director or trustee of Landlord.
22. The liability of Guarantor and all rights, powers and remedies of
Landlord hereunder and under any other agreement now or at any time hereafter in
force between Landlord and Guarantor relating to the Lease shall be cumulative
and not alternative and such rights, powers and remedies shall be in addition to
all rights, powers and remedies given to Landlord by law.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the day and
year first above written
IMPERIAL CREDIT INDUSTRIES, INC.,
a California corporation
By:________________________________
Its:____________________________
By:________________________________
Its:____________________________
EXHIBIT G - Page 5