SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
Form 10-Q
[X] Quarterly report pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 for the quarterly period ended
September 30, 1994 or
[ ] Transition report pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Commission file number: 0-12024
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MAXICARE HEALTH PLANS, INC.
------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 95-3615709
------------------------------ -------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1149 South Broadway Street, Los Angeles, California 90015
--------------------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (213) 765-2000
---------------
Indicate by check mark whether the registrant (1) has filed
all reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months (or
for such shorter period that the registrant was required to file
such reports), and (2) has been subject to such filing requirements
for the past 90 days.
Yes [ X ] No [ ]
Indicate by check mark whether the registrant has filed all
documents and reports required to be filed by Sections 12, 13, or
15(d) of the Securities Exchange Act of 1934 subsequent to the
distribution of securities under a plan confirmed by a court.
Yes [ X ] No [ ]
<PAGE>
Common Stock, $.01 par value - 10,829,607 shares outstanding as of
November 2, 1994, of which 790,964 shares were held by the
Registrant as disbursing agent for the benefit of holders of
allowed claims and interests under the Registrant's Joint Plan of
Reorganization.
<PAGE>
PART I: FINANCIAL INFORMATION
---------------------
Item 1: Financial Statements
--------------------
<TABLE>
<CAPTION>
MAXICARE HEALTH PLANS, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(Amounts in thousands except par value)
September 30, December 31,
1994 1993
---------- ---------
CURRENT ASSETS (Unaudited)
<S> <C> <C>
Cash and cash equivalents................................. $ 31,121 $ 38,672
Marketable securities..................................... 45,142 19,448
Accounts receivable, net.................................. 17,843 19,174
Deferred tax asset........................................ 6,000 6,000
Prepaid expenses.......................................... 2,861 3,717
Other current assets...................................... 300 406
--------- ---------
TOTAL CURRENT ASSETS.................................... 103,267 87,417
--------- ---------
PROPERTY AND EQUIPMENT
Leasehold improvements.................................... 5,466 5,466
Furniture and equipment................................... 27,100 36,878
--------- ---------
32,566 42,344
Less accumulated depreciation and amortization.......... 29,748 38,715
--------- ---------
NET PROPERTY AND EQUIPMENT.............................. 2,818 3,629
--------- ---------
LONG-TERM ASSETS
Long-term receivables..................................... 2,004 2,004
Statutory deposits........................................ 10,256 13,610
Intangible assets, net.................................... 174 147
--------- ---------
TOTAL LONG-TERM ASSETS.................................. 12,434 15,761
--------- ---------
TOTAL ASSETS............................................ $ 118,519 $ 106,807
========= =========
CURRENT LIABILITIES
Estimated claims and incentives payable................... $ 40,810 $ 38,895
Accounts payable.......................................... 309 401
Deferred income........................................... 3,097 2,682
Accrued salary expense.................................... 2,321 2,732
Payable to disbursing agent............................... 6,248 6,248
Other current liabilities................................. 6,475 2,960
--------- ---------
TOTAL CURRENT LIABILITIES............................... 59,260 53,918
LONG-TERM LIABILITIES....................................... 955 504
--------- ---------
TOTAL LIABILITIES....................................... 60,215 54,422
--------- ---------
SHAREHOLDERS' EQUITY
Preferred stock, $.01 par value - 5,000 shares authorized,
1994 - 2,290 shares and 1993 - 2,400 shares issued and
outstanding............................................. 23 24
Common stock, $.01 par value - 40,000 shares authorized,
1994 - 10,818 shares and 1993 - 10,033 shares issued and
outstanding............................................. 108 100
Additional paid-in capital................................ 245,797 241,151
Accumulated deficit....................................... (187,624) (188,890)
--------- ---------
TOTAL SHAREHOLDERS' EQUITY.............................. 58,304 52,385
--------- ---------
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY.............. $ 118,519 $ 106,807
========= =========
See notes to consolidated financial statements.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
MAXICARE HEALTH PLANS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(Amounts in thousands except per share data)
(Unaudited)
For the three For the nine
months ended months ended
September 30, September 30,
------------------ ------------------
1994 1993 1994 1993
-------- -------- -------- --------
<S> <C> <C> <C> <C>
OPERATING REVENUES................................................... $108,301 $108,986 $322,222 $328,058
-------- -------- -------- --------
OPERATING EXPENSES
Physician services................................................ 43,452 42,598 127,215 126,957
Hospital services................................................. 32,076 39,745 96,102 111,326
Outpatient services............................................... 15,714 16,608 47,703 46,238
Other health care services........................................ 3,953 4,207 12,011 10,736
-------- -------- -------- --------
TOTAL HEALTH CARE EXPENSES - Note 2............................. 95,195 103,158 283,031 295,257
Marketing, general and administrative expenses.................... 10,371 10,130 31,046 30,621
Depreciation and amortization..................................... 439 1,033 1,747 3,182
Litigation expense - Note 3....................................... 3,000
-------- -------- -------- --------
TOTAL OPERATING EXPENSES........................................ 106,005 114,321 318,824 329,060
-------- -------- -------- --------
INCOME (LOSS) FROM OPERATIONS........................................ 2,296 (5,335) 3,398 (1,002)
Investment income, net of interest expense........................ 893 570 2,130 2,074
-------- -------- -------- --------
INCOME (LOSS) BEFORE INCOME TAXES.................................... 3,189 (4,765) 5,528 1,072
INCOME TAX BENEFIT (PROVISION)....................................... (86) 76 (270) (160)
-------- -------- -------- --------
NET INCOME (LOSS).................................................... 3,103 (4,689) 5,258 912
PREFERRED STOCK DIVIDENDS............................................ (1,292) (1,350) (3,992) (4,050)
-------- -------- -------- --------
NET INCOME (LOSS) AVAILABLE TO COMMON SHAREHOLDERS................... $ 1,811 $ (6,039) $ 1,266 $ (3,138)
======== ======== ======== ========
NET INCOME (LOSS) PER COMMON AND COMMON EQUIVALENT SHARE - Note 1
Net Income (Loss) Available to Common Shareholders................ $ .16 $ (0.60) $ .12 $ (0.31)
======== ======== ======== ========
Weighted average number of common and common equivalent
shares outstanding - Note 1....................................... 11,116 10,023 10,906 10,022
======== ======== ======== ========
See notes to consolidated financial statements.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
MAXICARE HEALTH PLANS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Amounts in thousands)
(Unaudited)
For the nine months ended September 30,
1994 1993
-------- ---------
CASH FLOWS FROM OPERATING ACTIVITIES:
<S> <C> <C>
Net income....................................................... $ 5,258 $ 912
Adjustments to reconcile net income to net cash provided by
operating activities:
Depreciation expense........................................... 1,717 3,161
Amortization expense........................................... 30 21
(Gain) loss on dispositions of property and equipment.......... (10) 22
Net cash provided by (used for) changes in assets and
liabilities:
Decrease in accounts receivable.............................. 1,331 2,382
Increase in estimated claims and incentives payable.......... 1,915 7,359
Changes in other miscellaneous assets and
liabilities................................................ 4,219 (2,587)
-------- --------
Net cash provided by operating activities........................ 14,460 11,270
-------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Dispositions of property and equipment......................... 14 3
Purchases of property and equipment............................ (268) (427)
Decrease (increase) in statutory deposits...................... 3,354 (559)
Proceeds from sales of marketable securities................... 42,022 22,750
Purchases of marketable securities............................. (67,716) (17,815)
Decrease in long-term receivables.............................. 24
-------- --------
Net cash (used for) provided by investing activities............. (22,594) 3,976
-------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Cash transferred to disbursing agent........................... (971)
Payments on capital lease obligations.......................... (78) (314)
Payment of preferred stock dividends........................... (3,992) (4,050)
Stock options exercised........................................ 460 55
Warrants exercised............................................. 4,193
-------- --------
Net cash provided by (used for) financing activities............. 583 (5,280)
-------- --------
Net (decrease) increase in cash and cash equivalents............. (7,551) 9,966
Cash and cash equivalents at beginning of period................. 38,672 21,527
-------- --------
Cash and cash equivalents at end of period....................... $ 31,121 $ 31,493
======== ========
Supplemental disclosures of cash flow information:
Cash paid during the period for -
Interest..................................................... $ 21 $ 26
Income taxes................................................. $ 66 $ 284
Supplemental schedule of non-cash investing and financing
activities:
Capital leases incurred for purchase of property and equipment
and intangible assets........................................ $ 658
Book value of assets exchanged for assets.................... $ 40
Fair value of assets exchanged............................... (25)
--------
Loss on assets exchanged..................................... $ 15
========
See notes to consolidated financial statements.
</TABLE>
<PAGE>
MAXICARE HEALTH PLANS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1 - SIGNIFICANT ACCOUNTING POLICIES:
Basis of Presentation
---------------------
Maxicare Health Plans, Inc., a Delaware corporation ("MHP"), is a
holding company which owns various subsidiaries, primarily health
maintenance organizations ("HMOs"). The accompanying unaudited
consolidated financial statements have been prepared in
accordance with generally accepted accounting principles for
interim financial information. In the opinion of management, all
adjustments considered necessary for a fair presentation, which
consist solely of normal recurring adjustments, have been
included. All significant inter-company balances and
transactions have been eliminated. Certain amounts for 1993 have
been reclassified to conform to the 1994 presentation.
For further information on MHP and subsidiaries (collectively the
"Company") refer to the consolidated financial statements and
accompanying footnotes included in the Company's annual report on
Form 10-K as filed with the Securities and Exchange Commission
for the year ended December 31, 1993.
Net Income (Loss) Per Common and Common Equivalent Share
--------------------------------------------------------
Primary earnings per share is computed by first subtracting the
preferred stock dividends from net income (loss) to determine net
income (loss) attributable to common shareholders. This amount
is then divided by the weighted average number of common shares
and common equivalent shares for stock options and warrants (when
dilutive) outstanding during the period. Earnings per share
assuming full dilution is reported when the assumption that the
preferred stock is converted to common stock is dilutive.
Earnings per share assuming full dilution is determined by
dividing net income (loss) by the weighted average number of
common shares and common stock equivalents for stock options and
warrants (when dilutive) and for preferred stock assumed
converted to common stock.
NOTE 2 - HEALTH CARE EXPENSES:
Total health care expenses for the three and nine month periods
ended September 30, 1994 were $95.2 million and $283.0 million,
respectively. Total health care expenses for the three and nine
month periods ended September 30, 1993 include a one-time charge
of $7.0 million for actual and projected health care costs, not
previously anticipated, primarily resulting from changes in the
Indiana marketplace. This charge resulted from the restructuring
of relationships among the Company and its health care providers
as well as unanticipated increases in high cost health care
procedures. The provider network restructuring which began in
<PAGE>
mid 1992 was substantially completed in the first quarter of
1994. Prior estimates of health care costs have accordingly been
adversely affected by these market conditions and structural
changes.
NOTE 3 - LITIGATION EXPENSE:
A $3.0 million litigation charge was recorded in the second
quarter of 1994 as a result of a judgment awarding financing fees
and accrued interest to the plaintiff in Donaldson, Lufkin &
Jenrette Securities Corporation ("DLJ") vs. Maxicare Health
Plans, Inc. The DLJ claim was for breach of contract and unjust
enrichment by the Company arising out of an engagement letter
entered into between DLJ and the Company in 1991 for DLJ's
assistance in arranging for a private placement of the Company's
Series A Cumulative Convertible Preferred Stock (the "Series A
Stock") which was issued in 1992. The Company is appealing the
judgment and believes it has meritorious defenses and
counterclaims against DLJ in this matter, but has accrued the
liability pending a final ruling.
<PAGE>
Item 2: Management's Discussion and Analysis of Financial
-------------------------------------------------
Condition and Results of Operations
-----------------------------------
Results of Operations
The Company reported net income of $3.1 million for the three
months ended September 30, 1994, compared to a net loss of $4.7
million for the same period in 1993. Net income per common share
available to common shareholders was $.16 for the third quarter of
1994, compared to a net loss per common share of $.60 for the same
quarter in 1993.
The Company's revenues for the three months ended September 30,
1994 declined slightly to $108.3 million from $109.0 million for
the same period in 1993. This decrease is a result of a 19%
decrease in revenues of the Company's Indiana HMO partially offset
by a 9% increase in revenues in the other operating plans. The
decline in the revenues of the Indiana HMO is due to a 26%
decrease in membership, resulting from the restructuring of the
Indiana provider network, partially offset by a 9% increase in
premium revenue per member per month. The Company's overall
membership decreased only 2%, quarter to quarter, because the
other operating plans' membership increased 9%.
Health care expenses for the third quarter of 1994 decreased to
$95.2 million from $103.2 million for 1993. Health care expenses
as a percentage of operating revenues (the "medical loss ratio")
was 87.9% for the three months ended September 30, 1994 as
compared to 94.7% for the same period in 1993. This decrease
resulted from the decline in membership in Indiana and a $7.0
million one-time charge recorded in the third quarter of 1993.
The 1994 third quarter medical loss ratio for the Indiana plan
decreased 10.4% and the medical loss ratio for the other operating
plans decreased 4.7% as compared to the 1993 third quarter.
Depreciation and amortization expense for the three months ended
September 30, 1994 decreased $594,000 to $439,000, as compared to
the same period in 1993, because of the expiration of capital
leases and certain equipment that became fully depreciated in the
first quarter of 1994.
Net investment income for the third quarter of 1994 increased to
$893,000 from $570,000 in the third quarter of 1993. This was due
to higher interest rates and greater cash balances attributable to
both the results of operations and the $4.2 million in net
proceeds from the exercise of outstanding warrants of the
Company's common stock in July 1994. In June, 1994 the Company
issued a redemption notice on all 555,555 warrants outstanding.
Warrantholders who wished to exercise their warrants had to do so
by July 29, 1994. Any warrantholder who did not exercise their
warrants was entitled to receive the redemption price of $.05 per
warrant. A total of 420,178 warrants were exercised as a result of
this notice.
<PAGE>
For the nine months ended September 30, 1994, the Company reported
net income of $5.3 million as compared to $912,000 for the same
period in 1993. This $4.3 million increase is primarily due to
the $7.0 million one-time charge recorded in 1993 partially offset
by a $3.0 million litigation charge recorded in the second quarter
of 1994.
Liquidity and Capital Resources
Certain of MHP's operating subsidiaries are subject to state
regulations which require compliance with certain statutory net
worth, reserve and deposit requirements. To the extent the
operating subsidiaries must comply with these regulations, they
may not have the financial flexibility to transfer funds to MHP in
the form of a dividend or loan. MHP's proportionate share of net
assets (after inter-company eliminations) which, at September 30,
1994, may not be transferred to MHP by subsidiaries in the form of
loans, advances or cash dividends without the consent of a third
party is referred to as "Restricted Net Assets". Total Restricted
Net Assets of these operating subsidiaries was $19.2 million at
September 30, 1994, with deposit and reserve requirements
representing $10.3 million of the Restricted Net Assets and net
worth requirements, in excess of deposit and reserve requirements,
representing the remaining $8.9 million. The Company's total
Restricted Net Assets at September 30, 1994 was $19.5 million.
In addition to the $18.1 million in cash, cash equivalents and
marketable securities held by MHP, approximately $15.4 million
could be considered available to transfer to MHP from operating
subsidiaries.
All of MHP's operating subsidiaries are direct subsidiaries of
MHP. All of the Company's HMOs are federally qualified, and,
with the exception of the Company's South Carolina HMO, all of the
Company's operating HMOs are licensed by pertinent state
authorities. The operations of the South Carolina HMO are
currently under Bankruptcy Court jurisdiction pending a
reorganization of that entity to operate as a licensed HMO in the
state of South Carolina. The Company believes that it will be
able to ultimately resolve the South Carolina HMO's licensing
situation with the state of South Carolina as a separately
licensed HMO in such state or, alternatively, as a division of one
of its other operating HMOs to be licensed to do business in the
state of South Carolina. The Company can not predict at this time
the required capital infusion, if any, which may result from the
separate licensing of the South Carolina HMO in the state of South
Carolina or operating it as a division of one of the Company's
operating HMOs. If infusion of additional cash resources is
required to ensure compliance with statutory deposit and net worth
requirements, the Company does not believe such an infusion will
have a material adverse effect on its operations taken as a whole.
The operating HMOs currently pay monthly fees to MHP pursuant to
administrative services agreements for various management,
financial, legal, computer and telecommunications services. The
Company believes that for the foreseeable future, it will have
sufficient resources to fund ongoing operations, meet the final
<PAGE>
preferred stock dividend requirement of $.56 per share accruing
December 31, 1994 annually and remain in compliance with statutory
financial requirements.
Pursuant to the Company's plan of reorganization (the
"Reorganization Plan"), the Company is required to make
distributions based on its consolidated net worth in excess of
$2.0 million at December 31, 1991 and 1992 (the "Consolidated Net
Worth Distribution"). In March 1992, the Company consummated the
sale of $60 million of Series A Stock. The proceeds from this
sale, plus internally generated cash, were utilized to redeem in
April 1992 the entire outstanding Senior Notes. The sale of the
Series A Stock had the effect of significantly increasing the net
worth of the Company. The Company does not believe the
Reorganization Plan contemplated either the issuance of the Series
A Stock or the redemption of the Senior Notes, and accordingly,
the Company believes the Consolidated Net Worth Distribution
required by the Reorganization Plan should be calculated on a
basis as if the sale of the Series A Stock had not been
consummated and the Senior Notes had not been redeemed. As a
result of the foregoing, the Company calculated the December 31,
1992 Consolidated Net Worth Distribution amount to be
approximately $971,000, which was deposited for distribution to
certain creditors under the Reorganization Plan in March 1993. In
addition, the Company believes that any Consolidated Net Worth
Distribution which under the Reorganization Plan was to be
utilized to redeem the Senior Notes is not required since the
Senior Notes were fully redeemed. The committee representing the
creditors (the "New Committee") has stated it does not agree with
the Company's interpretation of the Reorganization Plan and
believes that additional amounts may be due under the Consolidated
Net Worth Distribution provision of the Reorganization Plan. The
Company has, on a number of occasions, responded to various
questions raised by and inquiries of the New Committee regarding
this matter. Notwithstanding the foregoing, the Company elected
to accrue in its consolidated financial statements for the year
ended December 31, 1992 the maximum potential liability of $7.2
million on this matter. The amount that may be ultimately payable
pursuant to this Reorganization Plan provision, if any, could be
less than the amount accrued.
Although, the Company does not believe that it needs additional
working capital at this time, it has from time to time had
discussions with lenders concerning a possible standby working
capital line. The Company cannot state with any degree of
certainty at this time whether additional equity capital or
working capital would be available to the Company, and if
available, would be at terms and conditions acceptable to the
Company.
<PAGE>
PART II: OTHER INFORMATION
-----------------
Item 1: Legal Proceedings
-----------------
The information contained in "Part I, Item 3. Legal Proceedings"
of the Company's 1993 Annual Report on Form 10-K and "Part II,
Item 1. Legal Proceedings" of the Company's Reports on Form 10-Q
for the quarterly periods ended March 31, 1994 and June 30, 1994
are hereby incorporated by reference and the following information
updates the information contained in the relevant subparts
thereof.
a. JURISDICTIONAL CHALLENGES AND APPEALS TO THE CHAPTER 11
REORGANIZATION PROCEEDINGS
On July 9, 1992, the United States District Court for the Central
District of California ("District Court") entered its Ruling on
Appeal (the "Ruling") and held that Maxicare Health Insurance
Company ("MHIC") is a domestic insurance company under Wisconsin
law and not eligible for relief under the Bankruptcy Code. The
Company's appeal of the Ruling and of the District Court's denial
of the Company's and MHIC's motion for rehearing (the "Appeal") is
pending before the United States Court of Appeals for the Ninth
Circuit (the "Court of Appeals").
The Company and the State of Wisconsin executed a definitive
settlement agreement dated June 17, 1994 (the "Agreement"). In
accordance with the Agreement, a reorganization plan providing for
the reorganization of MHIC on fundamentally the same terms and
conditions as the Reorganization Plan confirmed by the Bankruptcy
Court, with respect to liabilities which arose on or before March
15, 1989, was submitted by the State of Wisconsin for approval by
the Wisconsin State Court. On July 22, 1994 the Wisconsin State
Court entered orders approving and confirming the state court
reorganization plan and terminating the reorganization proceedings
(the "Termination Orders"). On August 12, 1994 the Bankruptcy
Court entered an order approving the Agreement (the "Approval
Order"). No creditor or party in interest has appealed the
Termination Orders or the Approval Order which have become final
and nonappealable.
On October 11, 1994 the District Court entered an order approving
a stipulation between the Company, MHIC and the State of Wisconsin
withdrawing the Company's and MHIC's motion to stay the Ruling
while the Ruling is on appeal. As required by the Agreement, the
parties will shortly file a stipulation with the Court of Appeals
dismissing the Appeal. Following entry of an order approving the
stipulation dismissing the Appeal MHIC will move the Bankruptcy
Court for an order dismissing its bankruptcy case.
The Agreement will be fully implemented and consummated following
dismissal of the Appeal and MHIC's bankruptcy case.
Implementation and consummation of the Agreement will have no
material adverse impact on the Company's business and its
operations.
<PAGE>
c. PENN HEALTH
On February 27, 1991 the Company filed a petition against the
Commonwealth of Pennsylvania, Department of Public Welfare ("DPW")
with the Pennsylvania Board of Claims (the "Board") seeking
damages in excess of $24 million (the "Verified Claim"). The trial
before the Board of contractual issues pertaining to DPW's
liability to Penn Health Corporation ("Penn Health") on the
Verified Claim and Penn Health's liability to DPW on DPW's
counterclaim concluded on July 25, 1994. The parties are presently
engaged in the preparation and submission of post trial briefs to
the Board on issues of contractual liability.
The Company believes that it has meritorious defenses to DPW's
counterclaim and that any recovery by DPW will not have a material
adverse impact on the Company's business or operations. A trial to
determine damages has been scheduled by the Board to commence on
December 12, 1994.
DPW has appealed the Bankruptcy Court's determination that DPW
waived its sovereign immunity by asserting an offset against Penn
Health, to the Ninth Circuit Bankruptcy Appellate Panel (the
"BAP"). On September 7, 1994 the BAP entered an order which
dismissed DPW's appeal for lack of ripeness and granted DPW leave
to file a motion to reinstate the appeal after the Board rules on
issues of contractual liability.
d. DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
On May 4, 1992, Donaldson, Lufkin & Jenrette Securities
Corporation ("DLJ") commenced an action in the Supreme Court of
the state of New York, located in New York County. In the
complaint, DLJ asserted claims for breach of contract and unjust
enrichment by the Company arising out of an alleged engagement
letter entered into between DLJ and the Company on or about August
8, 1991. On June 19, 1992, the Company served an answer to DLJ's
complaint denying that any amounts were due to DLJ and filed
courterclaims asserting misrepresentation by DLJ and, in the event
the Court determined that there was an enforceable contract
between the Company and DLJ, a separate counterclaim for breach of
contract. The Court dismissed the Company's courterclaims.
Following a jury trial, the court entered a judgement in DLJ's
favor, which awarded DLJ damages, interest and costs of
approximately $3.0 million.
On August 19, 1994 the Company filed an appeal of the judgment
with the Supreme Court of the State of New York, Appellate
Division, First Department. The appellate court has appointed a
special master to conduct a settlement conference between the
parties, but has not set a briefing schedule for the filing of
appellate briefs.
The Company believes that it has meritorious defenses and
courterclaims against DLJ and will prevail on its appeal of the
trial court's judgment. The Company has accrued the liability for
the judgment pending a final ruling on its appeal.
<PAGE>
e. OTHER LITIGATION
On May 12, 1992, a complaint captioned Robert Roe v Maxicare
Indiana Inc., was filed in the Superior Court of the State of
Indiana, County of Marion, Case NO: 49-D01-9205-CT-0515. In the
action, Robert Roe, a member of the health maintenance
organization plan operated by Maxicare Indiana Inc., ("Indiana"),
sought a declaratory judgment that he was entitled to certain
health care benefits as an HMO plan member. A claim for bad faith
was also asserted against Indiana seeking punitive damages based
on Indiana's determination that Mr. Roe was not entitled to
certain health care benefits under the terms of Indiana's HMO
health care plan. Indiana moved the court for, and the court
entered an order which, stayed proceedings in the action and
compelled Mr. Roe to arbitrate the matter as mandated by the group
subscription agreement that governs Mr. Roe's HMO plan membership.
On June 2, 1992 Mr. Roe submitted a demand for arbitration to the
American Arbitration Association of his dispute with Indiana
concerning the provision of health care benefits. In January
1993, the arbitrators awarded Mr. Roe compensation for health care
and medical service charges he had incurred, attorney's fees, and
costs of the arbitration, which amounted to approximately $29,000.
On March 15, 1994, Joyce Roe filed a third amended complaint in
the action on her behalf and on behalf of the estate of Robert Roe
which added the Company, a former employee, Indiana's medical
director and an independent practice association as additional
defendants. In the third amended complaint compensatory and
punitive damages are sought for battery, fraud, misrepresentation,
coercion, invasion of privacy and bad faith in connection with the
determination concerning Mr. Roe's entitlement to health care
benefits. The parties are presently engaged in discovery.
The Company and Indiana believe that they have meritorious
defenses in the action. If an adverse determination is rendered
in the action, the Company does not believe it will have a
material adverse effect on the Company's or Indiana's business or
operations.
The Company is a defendant in a number of other lawsuits arising
in the ordinary course from the operations of the HMOs, including
cases in which the plaintiffs assert claims against the Company or
third parties that might assert indemnity or contribution claims
against the Company for malpractice, negligence, bad faith in the
failure to pay claims on a timely basis or denial of coverage.
The Company does not believe that an adverse determination in any
one or more of these cases would have a material, adverse effect
on the Company's business and operations.
Item 2: Change in Securities
--------------------
None.
<PAGE>
Item 3: Defaults Upon Senior Securities
-------------------------------
None.
Item 4: Submission of Matters to a Vote of Security Holders
---------------------------------------------------
On August 17, 1994, the Company held its 1994 Annual
Meeting of Stockholders for the purpose of electing two
directors to the Board. Claude S. Brinegar and Charles
E. Lewis were elected as directors at the meeting, to
serve for a period of three years and until their
successors are duly qualified and elected. Of the
11,472,949 votes cast on this matter, 11,440,328 were
cast for the election of Mr. Brinegar and Dr. Lewis and a
total of 32,621 votes were withheld. Following the
meeting, Florence F. Courtright, Thomas W. Field, Jr.,
Eugene L. Froelich, Alan S. Manne and Peter J. Ratican
continued to serve as directors of the Company.
Item 5: Other Information
-----------------
None.
Item 6: Exhibits and Reports on Form 8-K
--------------------------------
(a) Exhibits
--------
Exhibit 10.68. Lease by and between Maxicare Health
Plans, Inc. and Transamerica Occidental Life
Insurance Company, dated as of June 1, 1994
Exhibit 27. Financial Data Schedule
<PAGE>
(b) Reports on Form 8-K
-------------------
On August 5, 1994 the Company filed a report on Form
8-K with respect to Item 5. Other Events -
Redemption of Warrants dated July 29, 1994 and with
respect to Item 4. Change in Registrant's
Certifying Accountants dated August 1, 1994.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
MAXICARE HEALTH PLANS, INC.
---------------------------
(Registrant)
/s/ EUGENE L. FROELICH
---------------------------
November 4, 1994 Eugene L. Froelich
Chief Financial Officer and
Executive Vice President -
Finance and Administration
<PAGE>
INDEX TO EXHIBITS
Exhibit Sequential
Number Description Page Number
------ ---------------------------------------- -----------
10.68 Lease by and between Maxicare Health Plans, 17 of 94
Inc. and Transamerica Occidental Life
Insurance Company, dated as of June 1, 1994
27 Financial Data Schedule 93 of 94
TERMINATION AGREEMENT
TRANSAMERICA OCCIDENTAL LIFE INSURANCE COMPANY, a California
corporation, as Landlord and MAXICARE HEALTH PLANS, INC., a
Delaware corporation, as Tenant, entered into a lease agreement
dated June 1, 1990 for premises located at 1149 South Broadway, Los
Angeles, California a copy of which is attached as Exhibit A. Upon
execution of a new lease between Landlord and Tenant with an
effective date of June 1, 1994, the June 1, 1990 lease between
Landlord and Tenant is terminated.
WHEREFORE, Landlord and Tenant have caused the Termination
Agreement to be executed by their duly authorized officers, all
effective as of June 1, 1994.
TENANT LANDLORD
MAXICARE HEALTH PLANS, INC. TRANSAMERICA OCCIDENTAL LIFE
INSURANCE COMPANY
By: /S/ EUGENE L. FROELICH By: /S/ LYMAN K. LOKKEN
Name: Eugene L. Froelich Name: Lyman K. Lokken
Its: Chief Financial Officer Its: Investment Officer
By: /S/ GEORGE R. BATCHELOR By: /S/ LOUISE K. NEAL
Name: George R. Batchelor Name: Louise K. Neal
Its: Vice President Its: Senior Vice President
Dated: October 10, 1994 Dated: October 12, 1994
<PAGE>
LEASE SUMMARY
1. Landlord: Transamerica Occidental Life Insurance Company,
a California Corporation.
2. Tenant: Maxicare Health Plans, Inc., a Delaware
Corporation.
3. Building: Transamerica Center, 1149 South Broadway Street,
Los Angeles, California 90015.
4. Premises: Entire 8th & 9th Floors in Broadway Building
consisting of approximately 82,688 rentable square feet.
5. Lease Term: Six (6) years with Two (2) Three (3) Year
Options To Renew
6. Initial Basic Rent: (See Article 3.02A)
Per Year: $950,912.00
Per Month: $ 79,242.67
7. Percentage Rent: 6.85% of al insurance, taxes, operating
costs incurred in connection with the Building. (82,688 /
1,206,471 = 6.85%)
8. Adjustments to Basic Rent: See Article 3.03 A
9. Scheduled Rent Commencement Date: June 1, 1994
10. Lease Expiration Date: May 31, 2000
11. Security Deposit: $79,242.67 - see also Article 4.01
12. Parking: See Exhibit H spaces in the parking areas serving
the Building.
13. Initial Tenant Insurance: See Article 6.
14. Notices:
To Tenant: To Landlord:
1149 S. Broadway Transamerica Occidental
Ninth Floor Life Insurance Company
Los Angeles, CA 90015 1150 S. Olive Street
Attention: Suite T-1100
Eugene L. Froelich Los Angeles, CA 90015
Executive Vice President Attn.: Building Manager
15. Permitted Use: The use permitted in Article 5.01, and no
other purposes.
<PAGE>
16. Tenant's Identity: Tenant is:
a natural person,
X a corporation incorporated in the State of
Delaware
a (general) (limited) partnership whose general
partners are:
17. Real Estate Brokers: Cushman & Wakefield of California, Inc.
(Tenant) and The Seeley Company (Landlord)
18. Tenant's Improvements: See Exhibit E
19. Miscellaneous Additional Provisions: Option to Renew
(Exhibit F) Expansion Space (Exhibit I) Security (Exhibit
J) Addendum (Exhibit K)
This Lease Summary sets forth basic terms used in this Lease
subject to the qualifications, conditions, adjustments and
exceptions set forth in the Lease. In the event of any conflict
between the items set forth in this Lease Summary and the
provisions of the Lease, the provisions of the Lease shall
control.
DOC: SUMMARY
As of September 28, 1994
<PAGE>
TRANSAMERICA CENTER
LEASE
TABLE OF CONTENTS
ARTICLE I - PREMISES
1.01 LEASE OF PREMISES
ARTICLE II - TERM AND RENT COMMENCEMENT
2.01 TERM
A. RENT COMMENCEMENT DATE
B. DELIVERY OF PREMISES
C. EARLY ENTRY
D. OPTION TO RENEW AND EXPAND
E. OUTSIDE COMMENCEMENT DATE
ARTICLE III - RENT
3.01 PAYMENT OF RENT
3.02 RENTS
A. BASIC RENT
B. PERCENTAGE RENT
C. ADDITIONAL RENT
3.03 COMPUTATION OF RENTS
A. BASIC RENT
B. PERCENTAGE RENT
3.04 ADDITIONAL RENT
3.05 PARTIAL PAYMENT
3.06 LATE CHARGE
ARTICLE IV - SECURITY DEPOSIT
4.01 SECURITY DEPOSIT
ARTICLE V - USE OF PREMISES
5.01 PERMITTED USE
5.02 PROHIBITED USES
5.03 COMPLIANCE WITH LAWS AND OTHER REQUIREMENTS
-i-
<PAGE>
ARTICLE VI - TENANT'S INSURANCE
6.01 POLICIES
6.02 EXTENDED COVERAGE
6.03 PUBLIC LIABILITY
6.04 WAIVER OF SUBROGATION
6.05 TENANT'S FAILURE TO INSURE
6.06 LANDLORD'S INSURANCE
ARTICLE VII - ALTERATIONS AND ADDITIONS
7.01 LANDLORD'S CONSENT; CONDITIONS
7.02 PERFORMANCE
7.03 LIENS
7.04 END OF TERM
7.05 ALTERATIONS BY LANDLORD
ARTICLE VIII - EMINENT DOMAIN
8.01 COMPLETE TAKING
8.02 PARTIAL TAKING
8.03 AWARD
8.04 TEMPORARY TAKING
ARTICLE IX - MAINTENANCE AND REPAIRS
9.01 LANDLORD'S OBLIGATIONS
9.02 TENANT'S OBLIGATIONS
9.03 EXCEPTIONS TO LANDLORD'S OBLIGATIONS
9.04 RIGHT OF ENTRY
9.05 CONSTRUCTION
9.06 SECURITY
9.07 CONTINUATION OF SERVICES
ARTICLE X - DAMAGE OR DESTRUCTION
10.01 RESTORATION
10.02 RENT ABATEMENT/TERMINATION
10.03 TENANT'S PROPERTY
ARTICLE XI - DEFAULT AND REMEDIES
11.01 DEFAULT
11.02 LANDLORD'S REMEDIES
A. TERMINATION OF LEASE
B. RIGHT OF ENTRY
C. WAIVER OF REDEMPTION
11.03 LANDLORD'S RIGHTS
A. RIGHT TO PERFORM
B. REMEDIES NOT EXCLUSIVE
-ii-
<PAGE>
11.04 DEFAULT BY LANDLORD
ARTICLE XII - ASSIGNMENT, SUBLEASING AND RECAPTURE
12.01 ASSIGNMENT, SUBLEASING, TRANSFER, RECAPTURE AND
PROFITS
12.02 MISCELLANEOUS ASSIGNMENT, SUBLEASING AND RECAPTURE
PROVISIONS
ARTICLE XIII - RELOCATION OF PREMISES
13.01 RELOCATION
ARTICLE XIV - UTILITIES AND SERVICES
14.01 BASIC UTILITIES AND SERVICES
14.02 ADDITIONAL TENANT USE
14.03 TEMPERATURE MAINTENANCE
14.04 EXCULPATION OF LANDLORD
14.05 ACCESS
14.06 DIRECTORY LISTING
ARTICLE XV - SUBORDINATION AND ATTORNMENT
15.01 SUBORDINATION
15.02 ATTORNMENT
ARTICLE XVI - QUIET ENJOYMENT
16.01 QUIET ENJOYMENT
ARTICLE XVII - NOTICES
17.01 NOTICES
ARTICLE XVIII - ESTOPPEL CERTIFICATES
18.01 ESTOPPEL CERTIFICATES
ARTICLE XIX - BROKERS
19.01 BROKERS
ARTICLE XX - EXCULPATION AND INDEMNIFICATION
20.01 EXCULPATION
20.02 INDEMNIFICATION
20.03 LIMITATION OF LIABILITY
20.04 TRANSFER OF LANDLORD'S INTEREST
-iii-
<PAGE>
ARTICLE XXI - PARKING
21.01 TENANT'S PARKING
ARTICLE XXII - DEFINITIONS
22.01 OPERATING COSTS
A. PROPERTY-RELATED TAXES
B. OPERATING EXPENSES
C. INSURANCE EXPENSES
22.02 LEASE
22.03 LANDLORD
22.04 TENANT
22.05 PREMISES
22.06 LEASE TERM
22.07 EXHIBIT
22.08 RENTABLE SQUARE FEET
22.09 RENT COMMENCEMENT DATE
22.10 READY FOR OCCUPANCY
22.11 DELAYS CAUSED BY TENANT
22.12 BUILDING
22.13 LAND
22.14 PROJECT
22.15 RENTS
22.16 SCHEDULED RENT COMMENCEMENT DATE
22.17 TRANSFER
22.18 SUBLET PORTION
22.19 PERSON
22.20 ASSIGNMENT
22.21 TRANSFER NOTICE
22.22 SUBLEASE
22.23 RECAPTURE RIGHTS
22.24 NET PROFITS
22.25 REASONABLENESS STANDARD
22.26 INDEX
22.27 DELAYS CAUSED BY LANDLORD
22.28 BUSINESS HOURS
22.29 COMMON AREAS
22.30 TENANT IMPROVEMENTS
22.31 ADJUSTED MONTHLY BASIC RENT
22.32 INITIAL MONTHLY BASIC RENT
22.33 SUBSTITUTE SPACE
22.34 LAW
22.35 NOTICE
22.36 INTEREST RATE
22.37 RULES AND REGULATIONS
22.38 FAIR MARKET RENTAL RATE
-iv-
<PAGE>
ARTICLE XXIII - MISCELLANEOUS
23.01 MEMORANDUM OF LEASE
23.02 ENTIRE AGREEMENT
23.03 AMENDMENTS
23.04 SUCCESSORS
23.05 FORCE MAJEURE
23.06 SURVIVAL OF OBLIGATIONS
23.07 LIGHT AND AIR
23.08 GOVERNING LAW
23.09 SEVERABILITY
23.10 CAPTIONS
23.11 CONSTRUCTION
23.12 INDEPENDENT COVENANTS
23.13 NUMBER AND GENDER
23.14 TIME IS OF THE ESSENCE
23.15 JOINT AND SEVERAL LIABILITY
23.16 EXHIBITS
23.17 OFFER TO LEASE
23.18 HOLDOVER
EXHIBITS
Exhibit A - Premises
Exhibit A-1 - BOMA Standards
Exhibit B - Rules and Regulations
Exhibit C - Cleaning Specifications
Exhibit D - N/A
Exhibit E - Tenant Improvements
Exhibit F - Option to Renew
Exhibit G - N/A
Exhibit H - Parking
Exhibit I - Expansion
Exhibit J - Security Specifications
Exhibit K - Addendum
Exhibit L - Legal Description
-v-
<PAGE>
TRANSAMERICA
LEASE
THIS LEASE, dated for reference purposes as of June 1, 1994
is between TRANSAMERICA OCCIDENTAL LIFE INSURANCE COMPANY, a
California corporation, as Landlord, and Maxicare Health Plans,
Inc., a Delaware corporation, as Tenant, who hereby agree to the
terms and conditions set forth below. All capitalized words or
phrases shall have the meanings set forth in their definitions
contained in Article 22 or as defined elsewhere in this LEASE.
ARTICLE I - PREMISES
1.01 LEASE OF PREMISES. Landlord leases to Tenant, and Tenant
leases and accepts from Landlord, the PREMISES described in Exhibit
A and consisting of approximately 82,688 RENTABLE SQUARE FEET
measured in accordance with BOMA Standards entered as Exhibit A-1
in the BUILDING. Tenant shall also have the right to the
nonexclusive use of the COMMON AREAS. Tenant shall have the right
to exercise two (2) OPTIONS TO RENEW, as defined and described in
Exhibit F attached hereto and made a part hereof.
ARTICLE II - TERM AND RENT COMMENCEMENT
2.01 TERM. The term of this LEASE shall be for Six (6) years
commencing on the RENT COMMENCEMENT DATE which may be extended by
Tenant in accordance with Article 2.01(d). This LEASE shall become
effective when executed by both Landlord and Tenant.
A. RENT COMMENCEMENT DATE. The RENT COMMENCEMENT DATE will
be June 1, 1994.
B. LEASE COMMENCEMENT DATE: The LEASE COMMENCEMENT DATE
will be June 1, 1994
C. EARLY ENTRY. INTENTIONALLY DELETED
D. OPTION TO RENEW AND EXPAND. Tenant shall have the right
to exercise the OPTION TO RENEW AND EXPAND, as defined and
described in Exhibits F and I attached hereto and made a part
hereof.
E. OUTSIDE COMMENCEMENT DATE INTENTIONALLY DELETED
<PAGE>
ARTICLE III - RENT
3.01 PAYMENT OF RENT. During the LEASE TERM, Tenant shall pay the
Landlord the RENTS set forth below, when due, without any
abatement, deduction, or setoff, except as otherwise set forth
herein. Tenant shall pay the RENTS in lawful money of the United
States to Landlord, at the address set forth in the Lease Summary,
or to such other person or place as Landlord may designate from
time to time. All payments of RENTS shall be paid by check drawn
on a bank that is a member of the California Bankers Clearing House
Association. In the event the RENT COMMENCEMENT DATE occurs on a
day other than the first day of the calendar month, the RENTS for
such first month shall be prorated on the basis of the actual
number of days in the month.
3.02 RENTS. Tenant shall pay to Landlord the following RENTS for
the PREMISES.
A. BASIC RENT. The INITIAL MONTHLY BASIC RENT (sometimes
referred to as BASIC RENT) of $79,242.67 which amount will be
increased as provided herein, shall be due and payable on the first
day of each calendar month. On June 1, 1996 the MONTHLY BASIC RENT
shall increase to $94,746.67. On June 1, 1998 the MONTHLY BASIC
RENT shall increase to $110,250.67.
B. PERCENTAGE RENT. Tenant's PERCENTAGE SHARE is an amount
no more than 6.85% (82,688 / 1,206,471 = 6.85%), unless Tenant
leases additional space, of all increases in OPERATING COSTS
incurred by the Landlord in connection with its ownership,
maintenance, and operation of the BUILDING computed on a periodic
basis as set forth in Article 3.03B, which shall be due and payable
in equal monthly installments on the first day of each calendar
month, commencing the date which is one year after the Rent
Commencement Date. The OPERATING COSTS for the calendar year 1994
for the BUILDING are included within Tenant's MONTHLY BASIC RENT
through December 31, 1994.
C. ADDITIONAL RENT. Any other amount which Tenant becomes
obligated to pay to Landlord pursuant to the terms and conditions
of this LEASE, which amount shall be due and payable within ten
(10) days of receipt by Tenant of a NOTICE from Landlord enclosing
an invoice for such amount.
3.03 COMPUTATION OF RENTS.
A. BASIC RENT. As set forth in Section 3.02.A.
B. PERCENTAGE RENT. The INITIAL MONTHLY BASIC RENT for the
calendar year 1994 shall include Tenant's PERCENTAGE SHARE of all
OPERATING COSTS for the BUILDING for 1994. Commencing on the date
which is one year after the RENT COMMENCEMENT DATE, and thereafter
throughout the LEASE TERM, Tenant shall pay its PERCENTAGE SHARE of
6.85% of all annual increases (except in 1995 where PERCENTAGE RENT
shall only be paid for the period from that date which is one year
after the RENT COMMENCEMENT DATE to December 31) in OPERATING COSTS
<PAGE>
as described in Article 3.02(B). Such amounts shall be due and
payable within ten (10) days of receipt by Tenant of a NOTICE from
Landlord enclosing an invoice for such amount.
3.05 PARTIAL PAYMENT. No Payment by Tenant or receipt or
acceptance by Landlord of a lesser amount than the correct RENTS
due shall be deemed to be other than a payment on account, nor
shall any endorsement or statement on any check or any letter
accompanying any check or payment be deemed an accord and
satisfaction. Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance, treat such
partial payment as a default or pursue any other remedy provided in
this LEASE or at law.
3.06 LATE CHARGE. Tenant acknowledges that the late payment of
RENTS will cause Landlord to incur damages, including
administrative costs, loss of use of the overdue funds and other
costs, the exact amount of which would be impractical and extremely
difficult to ascertain. Landlord and Tenant agree that if Landlord
does not receive a payment of RENTS on or before the date that
such payment is due, Tenant shall pay to Landlord, as ADDITIONAL
RENT, a late charge equal to one percent (1%) of the amount overdue
and shall accrue for each calendar month or part thereof until such
rental including the late charge is paid in full. Late charges
will be charged from the date due if payment is made after the five
(5) day grace period which period is five (5) business days
including the due date. Acceptance of the late charge by Landlord
shall not cure or waive Tenant's non monetary default, if any, nor
prevent Landlord from exercising, before or after such acceptance,
any of the rights and remedies for a default provided by this LEASE
or at law. Payment of the late charge is not an alternative means
of performance of Tenant's obligation to pay RENTS at the times
specified in this LEASE. Tenant will be liable for the late charge
regardless of whether Tenant's failure to pay the RENTS when due
constitutes a default under the LEASE. In addition to the
foregoing, if Landlord does not receive a payment of RENTS on or
before the date that such payment is due for any three consecutive
months, BASIC RENT due by Tenant hereunder shall automatically
become due and payable in quarterly installments due in advance,
rather than monthly, notwithstanding the provisions of Article 3 or
any provision of this LEASE to the contrary.
ARTICLE IV - SECURITY DEPOSIT
4.01 SECURITY DEPOSIT. Concurrently with Tenant's execution of
this LEASE, Tenant shall deposit with Landlord the amount of
$79,242.67 as a security deposit. This sum shall be held by
Landlord as security for the performance by Tenant of all of the
provisions of this LEASE, including, but not limited to, the
provisions relating to the payment of RENTS and payment of any
other amount which Landlord may spend by reason of Tenant's default
or to compensate Landlord for any other loss or damage which
Landlord may suffer by reason of Tenant's default or failure to
comply with the provisions of this LEASE. If any portion of the
security deposit is so used or applied, Tenant shall, within ten
<PAGE>
(10) days after written demand, deposit an amount equal to the
amount so used to maintain the amount held by Landlord as a
security deposit at $79,242.67. Tenant's failure to do so shall be
a default under this LEASE. Landlord shall not be required to keep
this security deposit separate from its general funds. If Tenant
shall fully and faithfully perform every provision of this LEASE,
the security deposit or any balance thereof together with interest
due thereon shall be returned to Tenant within thirty (30) days
after the LEASE TERM has expired and Tenant has vacated the
PREMISES.
Each time the BASIC RENT is increased pursuant to Article
3.02A Tenant shall deposit with Landlord, as additional security,
as amount equal to the difference between the new BASIC RENT and
the BASIC RENT in effect prior to the Article 3.02A adjustment.
Each time Tenant leases additional office space in the BUILDING,
Tenant shall deposit with Landlord, as additional security, an
amount equal to one month of the BASIC RENT attributed to the
additional office space.
Landlord shall pay interest on Tenant's security deposit in
an annual amount equal to the interbank interest rate set forth by
the Federal Reserve Bank of Dallas (11th District) in effect on
the first day of January in the year of each payment. Said payment
shall be paid in arrears on March 1st of each calendar year. Any
tenant increase in the security deposit owed as provided in the
Lease may be paid by Landlord out of any interest payments owed to
Tenant.
ARTICLE V - USE OF PREMISES
5.01 PERMITTED USE. Tenant shall use and occupy the PREMISES for
the operation of a general business office consistent with the uses
made by tenants of offices in first-class institutional office
buildings in the downtown Los Angeles area and for no other
purpose.
5.02 PROHIBITED USES. Except as provided in Section 5.01, Tenant
shall not use or allow another person to use any part of the
PREMISES for the following: a restaurant or a bar; the storage,
manufacture or sale of food, beverages, liquor, tobacco, any form
of drugs, or for any other retail purpose except for the ordinary
day-to-day storage and preparation of foods and beverages in
Tenant's kitchen areas; the business of photocopying or offset
printing; medical or dental offices or laboratories; retyping or
stenography business; a barber, beauty, hair styling or manicure
shop; a school or classroom; the manufacture, retail sale or
auction of merchandise, goods or property of any kind; or for any
immoral purposes. No noise, vibration or odor may escape from the
PREMISES. Tenant shall not bring or allow to be brought upon or
about the Premises or the Complex any substance which is regulated
as a toxic waste or hazardous material under any law or regulation
of any governmental authority (including, without limitation, any
toxic or hazardous substance, material or waste listed from time to
<PAGE>
time in the United States Department of Transportation Table (49
CFR 172.101) or by the Environmental Protection Agency as a
hazardous substance (40 CFR, Part 302) ("Hazardous Materials")
except for reasonable quantities of such substances commonly used
for purposes of cleaning offices and office equipment, and such
substances commonly used in standard office equipment such as
photocopiers and other duplicating equipment, telecopiers, printers
and other types of office equipment.
5.03 COMPLIANCE WITH LAWS AND OTHER REQUIREMENTS. Tenant shall at
its full cost and expense obtain any governmental license or
permits required to allow Tenant to conduct its business from the
PREMISES. Tenant shall at all times comply with all LAWS
applicable to its occupancy and use of the PREMISES, including all
applicable city codes (which include, without limitation, the
obligation of Tenant to appoint a fire warden for the PREMISES).
Tenant shall not use or occupy the PREMISES in any manner which in
Landlord's reasonable judgment (a) violates any Certificate of
Occupancy in force for the BUILDING or for the PREMISES; (b) causes
or is liable to cause damage to the PREMISES or the BUILDING; (c)
constitutes a violation of LAW; (d) violates a requirement or
condition of the fire insurance policy issued for the BUILDING or
increases the cost of such a policy after receiving written notice
from landlord of such violation; (e) impairs or tends to impair the
character, reputation, image or appearance of the BUILDING as a
first-class institutional office building; (f) impairs or tends to
impair the proper and economic maintenance, operation, and repair
of the BUILDING or its equipment, facilities or systems; (g)
constitutes or is liable to constitute a nuisance, or annoyance or
inconvenience to other tenants or occupants of the BUILDING or
interferes with the use or occupancy of any area of the BUILDING
for other tenants or occupants; (h) constitutes, or is liable to
constitute, an unlawful, immoral or objectionable occurrence or
condition; or (i) violates the RULES AND REGULATIONS.
ARTICLE VI - TENANT'S INSURANCE
6.01 POLICIES. All insurance required to be carried by Tenant
hereunder shall be issued by insurance companies qualified to do
business in the State of California and rated A-PLUS-XII in Best's
Insurance Guide. Each policy shall name Landlord and, at
Landlord's request, any mortgagee of Landlord or any ground lessor,
as an additional insured, as their respective interests may appear,
and copies of all policies or certificates evidencing the existence
and amounts of such insurance shall be delivered to Landlord by
Tenant at least ten (10) days prior to Tenant's occupancy of the
PREMISES. No such policy shall be subject to cancellation or
modification without ten (10) days' prior written notice to
Landlord and Landlord's lender. Tenant shall furnish Landlord with
renewals or "binders" of any such policy at least ten (10) days
prior to the expiration of such policy. Tenant shall have the
right to provide such insurance coverage pursuant to blanket
policies obtained by the Tenant, provided such blanket policies
expressly afford coverage to the PREMISES and to Tenant as required
by this LEASE.
<PAGE>
6.02 EXTENDED COVERAGE. Throughout the LEASE TERM, Tenant shall
procure and maintain, at its own expense, policies of casualty
insurance covering (i) all leasehold improvements (including any
ALTERATIONS made pursuant to the provisions of Article 7 hereof and
including TENANT IMPROVEMENTS), and (ii) trade fixtures,
merchandise and other personal property from time to time in, on or
upon the PREMISES, in an amount not less than one hundred percent
(100%) of their actual replacement cost from time to time during
the LEASE TERM, providing protection against any peril included
within the classification "Fire and extended Coverage," together
with insurance against sprinkler damage, vandalism and malicious
mischief. The proceeds of such insurance shall be used for the
repair or replacement of the property so insured, except that upon
termination of this LEASE following a casualty as set forth herein,
the proceeds under (i) shall be paid to Landlord and the proceeds
under (ii) above shall be paid to Tenant.
6.03 PUBLIC LIABILITY. Tenant shall procure and maintain at all
times during the LEASE TERM, at its own expense, bodily injury
liability insurance for injury to or death of any person in
connection with the construction of improvements on the PREMISES or
with the use, operation or condition of the PREMISES. Subject to
Landlord's reasonable approval such insurance policies may provide
for large deductibles and/or retentions commensurate with Tenant's
financial situation. Such insurance at all times shall have limits
of not less than Five Million Dollars ($5,000,000) for injuries to
persons in one accident, not less than Two Million dollars
($2,000,000) for injury to any one person, and not less than One
Million Dollars ($1,000,000) with respect to damage to property.
Such limits may be adjusted from time to time during the LEASE TERM
to such higher limits as Landlord may reasonably request. The
limits of insurance coverage required to be maintained by Tenant
hereunder from time to time shall not be deemed a limitation of
Tenant's obligations to indemnify and hold harmless Landlord
pursuant to Article 20.
6.04 WAIVER OF SUBROGATION. Any policy or policies of fire,
extended coverage or similar casualty insurance which Tenant
obtains in connection with the PREMISES shall include a clause or
endorsement denying the insurer any right of subrogation against
Landlord to the extent rights have been waived by the insured prior
to the occurrence of injury or loss. Tenant hereby waives any
rights of recovery against Landlord for injury or loss due to
hazards covered by TENANT'S insurance to the extent of the injury
or loss covered thereby.
6.05 TENANT'S FAILURE TO INSURE. If Tenant fails to maintain or
obtain any insurance required in this LEASE, Tenant shall be liable
for any loss or cost resulting from said failure.
6.06 LANDLORD'S INSURANCE. Landlord shall obtain and keep in
force during the entire term of this LEASE, including any option
terms, a policy or policies of casualty and other insurance
covering loss, injury and damage in, on and to the PREMISES, the
BUILDING, and the COMMON AREAS, but excluding the loss, injury and
damage covered by the insurance required to be obtained by Tenant.
Landlord's insurance shall include, but not be limited to, "All
<PAGE>
Risk" casualty insurance and insurance against sprinkler leakage,
boiler or compressor explosion and vandalism and malicious mischief
in an amount equal to the full replacement cost of the PREMISES
(less items Tenant is required to insure), and rental interruption
insurance, and flood and earthquake insurance, and may be in the
form of a general coverage or blanket policy covering the BUILDING
and other properties.
ARTICLE VII - ALTERATIONS AND ADDITIONS
7.01 LANDLORD'S CONSENT; CONDITIONS. Except for the original
Tenant Improvements, Tenant shall not make any alterations,
additions, improvements, or decorations in or to the PREMISES
("ALTERATIONS") without Landlord's prior written consent except
that Tenant shall have the right to make non-structural ALTERATIONS
that do not affect the electrical and HVAC systems and that do not
cost more than $30,000 per ALTERATION and do not affect the
exterior appearance of the BUILDING, upon written notice to
Landlord including plans or adequate descriptive information,
without obtaining Landlord's consent thereto. In the case of
ALTERATIONS for which Landlord's consent is required, Landlord's
consent may not be unreasonably withheld or delayed, but may be
conditioned upon the following:
A. The ALTERATIONS do not affect the exterior appearance of
the BUILDING.
B. The ALTERATIONS do not affect the structure of the
BUILDING or any of the mechanical, HVAC, or other systems of the
BUILDING.
C. Tenant's submission to Landlord of all plans and
specifications (collectively "PLANS") relating to the ALTERATIONS,
for Landlord's prior written approval, which approval shall not be
unreasonably withheld or delayed. All PLANS shall be prepared at
Tenant's sole cost and expense and shall contain a representation
and warranty from Tenant to Landlord that the ALTERATIONS will be
constructed and maintained in compliance with all applicable LAWS.
D. Tenant's payment to Landlord of all direct costs incurred
by Landlord because of Tenant's ALTERATIONS, including, but not
limited to, costs incurred for review of the PLANS and in reviewing
the progress of the ALTERATIONS, Landlord, by reviewing and
approving the PLANS, shall not become liable for the accuracy or
correctness of the PLANS or the failure of the PLANS or ALTERATIONS
to comply with applicable LAWS.
E. Landlord shall have the right to post notices of non-
responsibility on the PREMISES and such other notices as Landlord
may reasonable deem necessary to protect its interest in the
BUILDING.
F. Tenant must obtain all necessary approvals and permits
from all appropriate governmental authorities prior to construction
of the ALTERATIONS.
<PAGE>
7.02 PERFORMANCE. Tenant shall have the right to construct the
ALTERATIONS or to cause the ALTERATIONS to be constructed subject
to the reasonable approval of Landlord. All work shall be
performed pursuant to the plans and specifications submitted by
Tenant. Tenant's plans and specifications shall be in compliance
with Title 24 of the California Administrative Code, The Americans
With Disabilities Act, and all other laws, codes and ordinances,
and with the requirements of all carriers of insurance on the
PREMISES and on the BUILDING, the Board of Underwriters, Fire
Rating Bureau, or similar organization. All work shall be
performed in a diligent first-class manner, and shall be done in a
manner so as not to interfere with any other tenants or occupants
of the BUILDING. All reasonable costs and professional fees
incurred by Landlord by virtue of Tenant's construction of its
ALTERATIONS or interference with the normal operation of the
BUILDING shall be for the account of Tenant, and shall become due
with the payment of RENTS next due after receipt by Tenant of a
bill for such costs. Tenant shall carry Workers Compensation
Insurance and a policy of general liability insurance with
completed operations endorsements covering the ALTERATIONS, all in
accordance with the requirements of Article 6. The quality of
Tenant's construction must be at least equal to the quality of
building standard construction being installed in the BUILDING at
the time the ALTERATIONS are commenced.
7.03 LIENS. Tenant shall pay when due all costs for work
performed and materials supplied to the PREMISES. Tenant shall not
allow any lien or other notice of violations arising from the
ALTERATIONS or from any other work, labor, services or materials
done for or supplied to Tenant, or to the PREMISES, to encumber the
BUILDING or Tenant's interest in the PREMISES. No materials used
in Tenant's ALTERATIONS shall be subject to security interests or
liens. Tenant shall indemnify, defend, and hold Landlord harmless
from and against any and all mechanic's liens, stop notices, and
other encumbrances or claims filed against the BUILDING or the
PREMISES in connection with the ALTERATIONS, or any other work,
labor or services or materials supplied to Tenant or the PREMISES.
Tenant shall satisfy or discharge all liens, stop notices, or other
encumbrances within ten (10) days after such notice is filed.
7.04 END OF TERM. All ALTERATIONS shall become a part of the
PREMISES and shall become the property of Landlord upon expiration
or earlier termination of the LEASE. Landlord reserves the right,
however, to require Tenant to remove such ALTERATIONS prior to the
expiration of the LEASE TERM provided, however, that Landlord shall
not have such right to require Tenant to remove any ALTERATIONS
unless, at the time of Tenant's submission of the PLANS, Landlord
notifies Tenant that Landlord will require such removal prior to
the expiration of the LEASE TERM. In the event Landlord requires
Tenant to remove any ALTERATIONS, Tenant shall repair and restore
the PREMISES to its original condition prior to the ALTERATIONS,
reasonable wear and tear excepted. Any ALTERATIONS required to be
removed, but left in the PREMISES, may be removed by Landlord at
Tenant's sole cost and expense. All damages to the PREMISES
incurred thereby may be repaired by Landlord at Tenant's sole cost
and expense. No action by Landlord hereunder shall waive Tenant's
default for failure to comply with this Article.
<PAGE>
7.05 ALTERATIONS BY LANDLORD. Landlord shall have the right, at
any time, and without incurring any liability to Tenant, to make
changes, alterations, additions, improvements, repairs and
replacements in or to the BUILDING and the fixtures and equipment
used therein, including changes in the arrangement, number and/or
location of entrances and exits, corridors, doors and doorways,
elevators, stairs, toilets, parking spaces, parking areas,
driveways, walkways, loading areas or other public or common areas
of the BUILDING. Upon reasonable notice to Tenant, Landlord may
also change the name, number or designation by which BUILDING is
commonly known. Landlord shall give Tenant reasonable notice of
work to be done and said work shall be completed so as not to
unreasonably interfere with the conduct of Tenant's business.
ARTICLE VIII - EMINENT DOMAIN
8.01 COMPLETE TAKING. If the entire BUILDING or the entire
PREMISES is taken by condemnation, sale in lieu of condemnation, or
in any other manner for any public or quasi-public use or purpose
("Eminent Domain"), this LEASE and the term and estate granted
shall terminate on the earlier of (i) the date title to the
BUILDING passes from the Landlord, or (ii) the date the PREMISES
are occupied by the condemning or purchasing authority. All
amounts due under the LEASE shall be prorated as of the date of
termination based on a 360-day year and paid by Tenant to Landlord
on the termination date.
8.02 PARTIAL TAKING. If a part of the BUILDING other than any
portion of the PREMISES is taken by Eminent Domain, this LEASE
shall remain unaffected, and Tenant's obligations, including the
obligations to pay RENTS, shall remain in full force and effect
unless otherwise provided in this LEASE. If more than fifty
percent (50%) of the RENTABLE SQUARE FEET of the PREMISES is taken
by Eminent Domain, Landlord may, however, terminate this LEASE upon
NOTICE to Tenant given within ninety (90) days of the taking,
specifying a lease termination date to be no less than thirty (30)
nor more than ninety (90) days from the date NOTICE is given. The
LEASE shall terminate as of the date specified in the NOTICE, and
all amounts due shall be prorated to the LEASE termination date.
Tenant shall have the right to terminate the LEASE if more
than twenty percent (20%) of the RENTABLE SQUARE FEET of the
PREMISES is taken by Eminent Domain, providing the remaining part
of the PREMISES is not suitable for Tenant to conduct its business,
as determined by Tenant, from the PREMISES. Tenant shall also have
the right to terminate the LEASE if more than twenty percent (20%)
of the RENTABLE SQUARE FEET of the BUILDING is taken by Eminent
Domain and such taking materially interferes with Tenant's ability
(as determined by Tenant) to conduct its business in the PREMISES.
Tenant may terminate the LEASE upon NOTICE to Landlord given within
sixty (60) days of such taking, specifying a lease termination date
no less than thirty (30) nor more than ninety (90) days from the
date of the NOTICE. The LEASE shall terminate as of the date set
forth in the NOTICE, and all amounts due under the LEASE shall be
prorated to the LEASE termination date. In the event the BUILDING
<PAGE>
or PREMISES are partially taken, and Landlord and Tenant do not
elect, or do not have the right, to terminate the LEASE, Landlord
shall diligently commence to repair or restore the PREMISES to its
original condition, reasonable wear and tear and the taking by
Eminent Domain excepted. Landlord's obligation to replace or
restore does not include anything other than those items described
in Article 9.01. TENANT IMPROVEMENTS and anything else other than
those items described in Article 9.01 shall be the sole
responsibility of Tenant. If the RENTABLE SQUARE FEET of the
PREMISES is reduced by Eminent Domain and the LEASE is not
terminated, Tenant's RENTS shall be reduced proportionately.
8.03 AWARD. Except as otherwise provided herein, in the event of
Eminent Domain, the entire award for such taking shall belong to
the Landlord, and Tenant waives and assigns to Landlord any of its
rights, title, and interest to any award given for the taking of
the PREMISES or for the leasehold estate of the Tenant. Except as
provided herein, Tenant shall not be entitled to receive any part
of the award.
8.04 TEMPORARY TAKING. In the event all or a part of the PREMISES
is taken for a limited period of time, the LEASE shall remain in
full force and effect and subject to Landlord's performance of its
obligations under the LEASE Tenant shall observe and perform all
the terms, conditions and covenants of the LEASE, including the
covenant to pay RENTS, provided, however, that if such temporary
taking covers more than twenty percent (20%) of the RENTABLE SQUARE
FEET of the PREMISES and lasts for more than one year or occurs in
the last year of the LEASE TERM, Tenant shall have the right to
terminate this LEASE as provided in Section 8.02 above. Tenant
shall receive the entire condemnation award made for such temporary
taking, unless the taking extends for a period after the
expiration date of the LEASE. In such event, any award made for
the period after the expiration of the LEASE shall belong to
Landlord. In the event the taking expires prior to the termination
of the Lease, Tenant shall receive any award made for restoration
of the PREMISES, and shall diligently proceed to restore the
PREMISES to its original condition, reasonable wear and tear
excepted. Such restoration shall be at Tenant's sole cost and
expense.
ARTICLE IX - MAINTENANCE AND REPAIRS
9.01 LANDLORD'S OBLIGATIONS. Except as provided in Article 9.03
below, Landlord shall in a first class manner, maintain throughout
the LEASE TERM the exterior structure of the BUILDING (including
the foundation, exterior walls of the BUILDING and the roof of the
BUILDING) and all COMMON AREAS. Subject to the provisions of
Article 14.04, Landlord shall also maintain the HVAC, electrical,
mechanical, water, gas, and other systems of the BUILDING. Tenant
shall be exempt from any pass thru for capital expenditures
necessary to remedy any latent defect and deferred maintenance in
the BUILDING in excess of $50,000 per occurrence.
<PAGE>
Tenant acknowledges that Landlord has an obligation to
maintain the BUILDING and COMMON AREAS in a first class manner;
Tenant will not object to Landlord's staffing levels for operating,
maintaining and securing the BUILDING and COMMON AREAS, provided
that such staffing levels are reasonable, and provided that such
staffing levels are consistent with the quality and number of staff
that have been in effect in the five (5) years preceding this
lease.
9.02 TENANT'S OBLIGATIONS. Tenant, at Tenant's sole cost and
expense, shall maintain the PREMISES in good order, condition and
repair, reasonable wear and tear excepted, including, but not
limited to, the interior surfaces of the ceilings, walls, floors,
and all doors, windows, fixtures, switches, furnishings, TENANT
IMPROVEMENTS, and equipment installed by or at the expense of
Tenant. Landlord shall have no obligations to repair or maintain
the PREMISES except as provided in Article 9.01 above, and Article
14.01.
9.03 EXCEPTIONS TO LANDLORD'S OBLIGATIONS. Tenant expressly
agrees that Landlord shall not be responsible for, and shall have
no obligation to repair, any damage to the PREMISES or to the
BUILDING (including the structure thereof) or to any mechanical,
electrical, HVAC, gas, water, or other systems of the BUILDING,
caused by (i) Tenant's activities in the PREMISES; (ii) the
performance or existence of TENANT IMPROVEMENTS or ALTERATIONS;
(iii) the installation, use or operation of Tenant's Property in
the PREMISES; (iv) the movement of Tenant's Property into or out of
the PREMISES; or (v) any act, omission, misuse, or neglect by
Tenant, or its officers, partners, employees, agents, contractors,
servants or invitees. All damage so caused shall promptly be
repaired by Landlord, at Tenant's sole cost and expense.
9.04 RIGHT OF ENTRY. Tenant expressly acknowledges that Landlord
shall have, at all reasonable times, the right to enter upon the
PREMISES for any of the following purposes: (a) to inspect the
PREMISES having given at least twenty-four (24) hours prior NOTICE
to tenant; (b) to supply janitorial service, shared tenant services
and any other services to be provided by Landlord hereunder; (c) to
submit the PREMISES to prospective purchasers at any time during
the term or tenants during the last twelve (12) months of term; (d)
to post notices of non-responsibility; or (e) to alter, improve or
repair the PREMISES with reasonable notice or any other portion of
the BUILDING provided that it does not materially affect Tenants
use of the premises. Landlord shall have the right to erect
scaffolding or such other equipment as is reasonably necessary to
effectuate repairs, and Landlord shall in no way be liable to
Tenant for any inconvenience, annoyance or loss of business thereby
caused to Tenant, and Tenant shall not be entitled to rent
abatement. Unless the activity prevents Tenant from conducting its
business, Landlord agrees to use its best efforts to provide Tenant
with access to the PREMISES and to complete the work diligently, in
a first-class manner, and in a manner that will cause as little
disruption to Tenant's business as is reasonably possible. Tenant
agrees to give Landlord NOTICE of any repairs required to be made
which may be the responsibility of Landlord. Tenant shall also
<PAGE>
immediately give NOTICE to Landlord of any fire or other casualty
in the BUILDING or PREMISES. Before undertaking any repairs for
which Tenant is responsible, Tenant agrees to provide Landlord with
NOTICE of such intent, except in the event of an emergency, in
which event Tenant shall provide Landlord with NOTICE as soon as
practicable. Landlord may post notices of non-responsibility prior
to the commencement of such work.
Landlord shall at all times have and retain a key with which
to unlock all of the doors in and to the PREMISES, excluding
Tenant's vaults and safes, and Landlord shall have the right to use
any and all means which Landlord may deem proper to open said doors
in an emergency in order to obtain entry to the PREMISES, and any
entry to the PREMISES obtained by Landlord by any of said means
shall not under any circumstances be construed or deemed to be a
forcible or unlawful entry into, or a detainer of, the PREMISES, or
any eviction of Tenant from the PREMISES or any portion thereof.
9.05 CONSTRUCTION. Tenant expressly acknowledges that during the
course of the LEASE TERM, portions of the BUILDING and the PROJECT
may require additional construction. In completing such
construction, Landlord may cause Tenant temporary annoyance and
inconvenience. Such temporary annoyance and/or inconvenience shall
not give rise to any claim by Tenant against Landlord because of
such condition or activity or allow Tenant to abate rent unless the
activity prevents Tenant from conducting its business.
9.06 SECURITY. The Landlord shall provide minimum security in
accordance with Exhibit J.
9.07 CONTINUATION OF SERVICE. Subject to the provisions of
Section 23.05, Landlord expressly agrees to provide certain
services, including a gymnasium, auditorium and cafeteria (the
"SERVICES") which are, at a minimum, of substantially the same
quality as the SERVICES being provided by Landlord in the BUILDING
and adjacent properties on the date of the execution of this LEASE.
Landlord's obligation to provide the SERVICES shall terminate three
years from the RENT COMMENCEMENT DATE. However, if the SERVICES
are discontinued thereafter during the LEASE term, Tenant shall
have the right to terminate the LEASE provided the failure to
provide services is not the result of eminent domain, government
action or force majeure or circumstances beyond Landlord's
reasonable control.
ARTICLE X - DAMAGE OR DESTRUCTION
10.01 RESTORATION. Landlord shall promptly and with due diligence
repair any damage to the BUILDING in accordance with Article 9.01
and applicable laws upon receipt of written notice to Landlord of
such damage, and the receipt by Landlord of proceeds from insurance
policies covering the damage; provided, however, that Landlord
shall have no obligation to repair the PREMISES or the BUILDING in
the event any of the following is true:
<PAGE>
(i) Intentionally deleted.
(ii) Forty (40%) percent of the PREMISES is totally
destroyed;
(iii) The BUILDING is so damaged so as to require an
expenditure in excess of twenty percent (20%) of
the full insurable value of the BUILDING, as
determined by a contractor reasonably selected by
Landlord;
(iv) A casualty occurs with two (2) years or less
remaining in the LEASE TERM, excluding options;
(v) In Landlord's reasonable estimation, the time to
repair the damage would exceed one hundred twenty
(120) days; or
(vi) The period for which rent would be abated
pursuant to Article 10.02 below would be greater
than six (6) months.
10.02 RENT ABATEMENT/TERMINATION. If Landlord has no obligation
to repair the premises under Section 10.01 and Landlord elects not
to repair the premises under Section 10.01, Tenant's obligation to
pay rent shall be abated as of the date of the casualty and Tenant
may, at its option, terminate this lease. If the Landlord has an
obligation to repair the Building or Premises under Section 10.01
and has determined to undertake said repairs yet the PREMISES is
uninhabitable by reason of fire or other casualty, or if the
BUILDING is so damaged or destroyed by fire or other casualty that
Tenant has no access to the PREMISES, Tenant's RENT shall be abated
in the proportion that the untenantable rentable area of the
PREMISES bears to the total rentable area of the PREMISES. RENT
shall be abated from the date of the damage or destruction until
that part of the PREMISES that had been uninhabitable is
substantially repaired, or until access to the PREMISES is
restored, as the case may be. In no event shall Tenant's RENT be
abated for any portion of the PREMISES which is occupied by Tenant.
Tenant's RENTS shall not be abated if (i) the damage or
destruction is repaired within five (5) days after Landlord has
knowledge of or receives notice of the casualty; or (ii) the
Tenant, Tenant's agents, employees, officers, partners or invitees,
or anyone claiming through Tenant, is responsible for the damage or
destruction. In the event the PREMISES are damaged or destroyed or
become inaccessible and the Landlord has an obligation to repair
under Section 10.01, Landlord shall have the right to provide
Tenant with temporary office space in the BUILDING reasonably
suited for Tenant to conduct its business, and, if such temporary
space is available, Tenant shall have precedence in using said
space subject only the use of said temporary space by Landlord or
its' affiliates. Such alternative space shall contain as many
rentable square feet as the uninhabitable portion of the Premises,
and the RENTS for alternative space shall be the same as the RENTS
for the Premises. Landlord shall pay the expenses reasonably
incurred by Tenant in moving to the alternative space. In such
<PAGE>
event, Tenant's RENT shall not be abated. Tenant shall not be
entitled to any damages for any inconvenience, loss of business or
annoyance suffered by Tenant by reason of the damage or destruction
or by the repair or restoration of the PREMISES or the BUILDING.
Landlord shall use its best efforts to promptly repair any damage
pursuant to this Article, and to the extent possible, not interfere
with Tenant's use and occupancy of the PREMISES, but Landlord shall
not be obligated to perform any repairs on an overtime or premium-
pay basis.
10.03 TENANT'S PROPERTY. Landlord shall not be obligated to
repair or replace anything other than those items described in
Article 9.01 in the event of damage or destruction to the PREMISES
or BUILDING. In the event Landlord restores the PREMISES or
BUILDING pursuant to this Article, Tenant shall immediately
thereafter repair or restore all TENANT IMPROVEMENTS damaged or
destroyed.
ARTICLE XI - DEFAULT AND REMEDIES
11.01 DEFAULT. The occurrence of any of the following shall
constitute a material default and breach of this LEASE by Tenant:
A. Any failure by Tenant to pay RENTS where such failure
continues for five (5) days after written NOTICE that such payment
was not paid when due.
B. Failure by Tenant to observe or perform any material
provision of the LEASE, other than the provisions relating to
payment of RENTS, where such failure continues for ten (10)
business days after written NOTICE from Landlord to Tenant of such
failure; provided, however, that if the nature of the default is
such that the same cannot reasonably be cured within ten (10)
business days but can be cured within a period of one hundred (100)
days, Tenant shall not be deemed to be in default if Tenant shall
within such period commence to cure and diligently pursues the same
to completion within the period of one hundred (100) days plus any
reasonable time necessary absent a catastrophic event or casualty
during said 100 days.
C. The making by Tenant or by any guarantor of this LEASE
of any general assignment for the benefit of creditors; the filing
against Tenant, or against any guarantor of this LEASE of an
involuntary petition under the United States Bankruptcy Code or
similar law for the relief of debtors which petition is not
dismissed within sixty (60) days from the date of filing, or the
filing by Tenant or any Guarantor of this LEASE of a voluntary
petition under the United States Bankruptcy Code or similar law for
the relief of debtors; the appointment of a trustee or receiver to
take possession of substantially all of Tenant's assets located at
the PREMISES, or the assets of any guarantor of the LEASE, or of
Tenant's interest or of any guarantor's interest in this LEASE,
where possession is not restored to Tenant or to any guarantor
within thirty (30) days; or the attachment, execution or other
judicial seizure of substantially all of Tenant's assets or
<PAGE>
substantially all the assets of any guarantor of this LEASE, where
such seizure is not discharged within thirty (30) days of such
seizure.
11.02 LANDLORD'S REMEDIES.
A. TERMINATION OF LEASE. In the event of any material
default by Tenant, the Landlord shall have the right, in addition
to all other rights available to Landlord under this LEASE or at
law, to terminate this LEASE by providing Tenant with a NOTICE of
termination. Upon termination Landlord may recover any damages
proximately caused by Tenant's failure to perform under the LEASE,
or which are likely in the ordinary course of business to be
incurred, including any amount expended or to be expended by
Landlord in an effort to mitigate damages, as well as any other
damages to which Landlord is entitled to recover under any statute
now or hereafter in effect. Landlord's damages include the worth,
at the time of any award, of the amount by which the unpaid RENTS
for the balance of the term after the time of the award exceeds the
amount of the rental loss that the Tenant proves could be
reasonably avoided. The worth at the time of award shall be
determined by discounting such amount at one percent (1%) more than
the discount rate of the Federal Reserve Bank in San Francisco in
effect at the time of the award. Other damages to which Landlord
is entitled shall earn interest at the INTEREST RATE as provided in
Article 22.36.
B. RIGHT OF ENTRY. In the event of any default by Tenant,
Landlord shall also have the right, with or without terminating
this LEASE, to enter the PREMISES and remove all persons and
personal property from the PREMISES, such property being removed
and stored in a public warehouse or elsewhere at Tenant's sole cost
and expense. No removal by Landlord of any persons or property in
the PREMISES shall constitute an election to terminate this LEASE.
Such an election to terminate may only be made by Landlord in
writing, or decreed by a court of competent jurisdiction.
Landlord's right of entry shall include the right to remodel the
PREMISES and re-let the PREMISES. All costs incurred in such entry
and re-letting shall be paid by Tenant. Rents collected by
Landlord from any other party which occupies the PREMISES shall be
offset against the amounts owed to Landlord by Tenant. Tenant
shall be responsible for any amounts not recovered by Landlord from
any other party. Any payments made by Tenant shall be credited to
the amounts owed by Tenant in the sole order and discretion of
Landlord, irrespective of any designation or request by Tenant. No
entry by Landlord shall prevent Landlord from later terminating the
LEASE by written notice.
C. WAIVER OF REDEMPTION. Tenant hereby waives, for itself
and all persons claiming by and under Tenant, all rights and
privileges which it might have under any present or future law to
redeem the PREMISES or to continue the LEASE after being
dispossessed or ejected from the PREMISES.
<PAGE>
11.03 LANDLORD'S RIGHTS.
A. RIGHT TO PERFORM. If Tenant fails to perform any
covenant or condition to be performed by Tenant, Landlord may
perform such covenant or condition at its option, after NOTICE to
Tenant. All costs incurred by Landlord in so performing shall
immediately be reimbursed at cost to Landlord by Tenant, together
with interest at the INTEREST RATE computed from the due date. Any
performance by Landlord of Tenant's obligations shall not waive or
cure such default. Landlord may perform Tenant's defaulted
obligations at Tenant's sole cost and expense without NOTICE in the
case of any emergency. All costs and expenses incurred by
Landlord, including reasonable attorneys' fees, (whether or not
legal proceedings are instituted) in collecting RENTS or enforcing
the obligations of Tenant under the LEASE shall be paid by Tenant
to Landlord upon demand.
B. REMEDIES NOT EXCLUSIVE. The rights and remedies of
Landlord set forth herein are not exclusive, and Landlord may
exercise any other right or remedy available to it under this
LEASE, at law or in equity.
11.04 DEFAULT BY LANDLORD. Landlord shall not be in default in
the performance of any obligation required to be performed under
this LEASE unless Landlord has failed to perform such obligation
within thirty (30) days after the receipt of NOTICE from Tenant
specifying in reasonable detail Landlord's failure to perform;
provided, however, that if the nature of Landlord's obligation is
such that more than thirty (30) days are required for its
performance, the Landlord shall not be deemed in default if it
shall commence such performance within thirty (30) days and
thereafter diligently pursues the same to completion which time
period shall not exceed one hundred (100) days absent a
catastrophic event or casualty. Tenant shall have no rights as a
result of any default by Landlord until Tenant gives thirty (30)
days' NOTICE to Landlord specifying the nature of the default,
unless such default materially impairs Tenant's ability to conduct
its business or breaches Tenant's right to quiet enjoyment of the
PREMISES, in which case Tenant shall not be required to wait thirty
(30) days but wait seven (7) business days after Landlord's receipt
of notice before exercising its remedies.
ARTICLE XII - ASSIGNMENT AND SUBLEASING
12.01 ASSIGNMENT, SUBLEASING, TRANSFER AND PROFITS. Tenant agrees
and understands that the RENTS set forth in Article 3 and the term
set forth in Article 2 have been established in contemplation that
Tenant would actually occupy the entire PREMISES for the entire
LEASE TERM. Tenant's RENTS would have otherwise increased every
year to the higher of the FAIR MARKET RENTAL RATE or the RENTS
computed in accordance with the terms and conditions of this LEASE.
<PAGE>
Tenant agrees that it will not enter into any SUBLEASE or
ASSIGNMENT without first complying with the provisions of Section
12.02. Landlord specifically retains the right of reasonable
review of proposed assignees and subtenants. NET PROFITS from any
permitted assignment or sublet shall be divided evenly between
Landlord and Tenant.
Notwithstanding the above, Landlord on its behalf and on behalf of
any affiliated company, shall have the ongoing right of first
refusal for premises subject to a proposed sublet or assignment
which right may be exercised in accordance with the provisions of
Section 12.02 by Landlord giving written notice to Tenant.
12.02 MISCELLANEOUS ASSIGNMENT AND SUBLEASING PROVISIONS.
A. In the event Tenant desires to assign or sublet pursuant
to this Article 12, Tenant shall advise landlord, by written
Notice, as defined below, of: (i) Tenant's desire to assign, or
sublease its lease, (ii) the name, address and business of the
proposed assignee or sublessees (and evidence reasonably
satisfactory to landlord that such proposed assignee or sublessees
is comparable in reputation, stature and financial condition to,
and will make a use of the Premises similar to the use being made
by Tenant or the Other Tenants leasing comparable space in the
Building) and (iii) the terms of the proposed assignment of
subletting, and LANDLORD shall, within ten (10) business days of
receipt of such notice and receipt of any additional information
requested by landlord concerning the proposed assignee's or
sublessee's financial responsibility, elect one of the following:
(a) Consent to such proposed ASSIGNMENT, encumbrance or
SUBLEASE;
(b) Refuse such consent, which refusal shall not be
unreasonably withheld or delayed; or (c) Elect to
exercise its right of first refusal and accept said
ASSIGNMENT or SUBLEASE on the same terms and conditions
as were contained in the written NOTICE provided by
Tenant to Landlord in accordance with the provisions of
this Section 12.02A.
(c) Elect to exercise its right of first refusal and accept
said ASSIGNMENT or SUBLEASE on the same terms and
conditions as were contained in the written NOTICE
provided by Tenant to Landlord in accordance with the
provisions of this Section 12.02A.
B. Notwithstanding any SUBLEASE to Landlord or any
ASSIGNMENT or SUBLEASE to any other PERSON, Tenant will remain
fully liable for the payment of RENTS and for the performance of
all other obligations of Tenant contained in this LEASE. Any act
or omission of an assignee or sublessee, other than Landlord, or
anyone claiming under or through Landlord, that violates any of the
obligations of this LEASE shall be deemed a violation of this LEASE
by Tenant.
<PAGE>
C. The consent by Landlord to any ASSIGNMENT or SUBLEASE
shall not relieve Tenant, or any person claiming through or under
Tenant, of the obligation to obtain the consent of Landlord,
pursuant to the provisions of this entire Article 12, to any
further ASSIGNMENT or SUBLEASE.
D. If Landlord declines to give its consent to any proposed
ASSIGNMENT or SUBLEASE, Tenant shall indemnify, and hold Landlord
harmless against and from any and all loss, liability, damages,
costs and expenses (including reasonable attorneys' fees) resulting
from any losses incurred by Landlord from lawsuits based on claims
that may be made against Landlord by the proposed assignee or
sublessee, or brokers or other persons claiming a commission or
similar compensation in connection with the proposed ASSIGNMENT or
SUBLEASE, resulting from Tenant's actions. In addition, Tenant
shall reimburse Landlord for all costs that Landlord incurred in
connection with any such proposed ASSIGNMENT or SUBLEASE for all
reasonable professional fees not to exceed $500 per transaction,
including by way of illustration and not be way of limitation, the
costs of making investigations as to the acceptability of the
proposed assignee or sublessee and all attorneys' fees and other
legal costs incurred in connection with any request for such
consent.
E. With respect to each and every SUBLEASE and ASSIGNMENT
authorized by Landlord under the provisions of this Article 12, it
is further agreed that:
1. The term of the SUBLEASE must end no later that one
(1) day prior to the last day of the LEASE TERM.
2. No SUBLEASE or ASSIGNMENT shall be valid, and no
sublessee or assignee shall take possession of the PREMISES or any
part thereof, until a fully executed SUBLEASE or ASSIGNMENT,
together with such documentation as Landlord shall reasonably
request, has been delivered to Landlord.
3. Each SUBLEASE shall provide that it is subject and
subordinate to this LEASE and to all mortgages; that Landlord may
enforce the provisions of the SUBLEASE, including collection of
RENTS; that in the event of termination of this LEASE or re-entry
or repossession of the PREMISES by Landlord, Landlord may, at its
option, take over all of the right, title and interest of Tenant,
as sublessor, under such SUBLEASE, and such sublessee shall, at
Landlord's option, attorn to Landlord, but that nevertheless
Landlord shall not (1) be liable for any previous act or omission
of Tenant under such SUBLEASE, (2) be subject to any defense or
offset previously accrued in favor of the sublessee against Tenant,
or (3) be bound by any previous modification of such SUBLEASE made
without Landlord's written consent, or by any previous prepayment
by sublessee of more than one month's rent.
F. Any material modification or amendment to a SUBLEASE
shall be deemed a proposed SUBLEASE subject to the terms of this
Article 12 and requiring a TRANSFER NOTICE to Landlord.
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G. In the event that (i) Landlord fails to exercise its
right of first refusal described in Article 12.01 above, and
consents to a proposed ASSIGNMENT or SUBLEASE, and (ii) Tenant
fails to execute and deliver the ASSIGNMENT or SUBLEASE to which
Landlord has consented within one hundred twenty (120) days after
the giving of such consent, then Landlord's consent shall be null
and void, and Tenant shall again comply with all of the provisions
and conditions of this Article 12 before assigning this LEASE or
subletting all or part of the PREMISES.
H. If this LEASE is assigned, whether or not in violation of
the provisions of this LEASE, Landlord may collect rent from the
assignee without waiving any of its rights hereunder. If the
PREMISES or any part thereof are sublet, whether or not in
violation of this LEASE, Landlord may, after default by Tenant and
expiration of Tenant's time to cure such default, collect rent from
the sublessee without waiving any of its rights hereunder. In
either event, Landlord may apply the net amount collected to
payment of RENTS, but no such assignment, subletting, or collection
shall be deemed (i) a waiver of any of the provisions of this
Article, (ii) an acceptance of the assignee or sublessee as a
tenant, or (iii) a release of Tenant from the performance by Tenant
of Tenant's obligations under this LEASE.
I. Tenant agrees that its rights to enter into an ASSIGNMENT
or a SUBLEASE are governed by this entire Article 12 and agrees
that it will not, under any circumstances, mortgage or otherwise
encumber, directly or indirectly, its interests in this LEASE or
the PREMISES.
J. If Tenant is a corporation or other entity, a merger or
consolidation of the Tenant with or into another entity or the sale
of all or substantially all of Tenant's assets, or a dissolution of
the corporation shall be deemed a TRANSFER of this LEASE, subject
to the provisions of this entire Article 12; but these provisions
shall not apply to a corporation into which Tenant is merged or
consolidated or to which substantially all of Tenant's assets are
transferred or which controls or is controlled by Tenant or is
under common control with Tenant, provided that a principal purpose
of such merger or transfer is not the TRANSFER of this LEASE and
that in any of such events the successor to Tenant has a net worth,
computed in accordance with generally accepted accounting
principals at least equal to the greater of (a) the net worth of
Tenant immediately prior to such merger, consolidation or transfer,
or (b) the net worth, on the date of this LEASE, of the Tenant.
ARTICLE XIII - RELOCATION OF PREMISES
13.01 RELOCATION. Landlord shall have the right, upon sixty (60)
days NOTICE to Tenant, to relocate Tenant to other substitute space
in the BUILDING ("SUBSTITUTE SPACE"). The SUBSTITUTE SPACE shall
contain at least as many RENTABLE SQUARE FEET as the PREMISES, and
the RENTS for the SUBSTITUTE SPACE shall be the same as the RENTS
for the PREMISES, regardless of the size of the SUBSTITUTE SPACE.
Landlord shall pay the expenses reasonably incurred by Tenant in
<PAGE>
moving to the SUBSTITUTE SPACE, including moving expenses, door
lettering and expenses in connection with change of telephone and
stationery. Landlord agrees to furnish the SUBSTITUTE SPACE with
TENANT IMPROVEMENTS comparable in quality to those in the PREMISES.
Notwithstanding the above this Article shall not apply to Tenant's
occupancy of the 8th and 9th floors or any floor where Tenant has
constructed a stairway to the 8th or 9th floors or occupies more
than 40% of the rentable area on said floor.
ARTICLE XIV - UTILITIES AND SERVICES
14.01 BASIC UTILITIES AND SERVICES. Subject to Section 14.02
Landlord shall furnish to the PREMISES during BUSINESS HOURS, and
subject to rules and regulations from time to time established by
Landlord, (a) heating, air conditioning and ventilation in amounts
required, from 7:00 a.m. to 6:00 p.m. Monday through Friday except
for recognized holidays, for the use and occupancy of the PREMISES;
(b) freight and passenger elevator service; (c) electricity in the
amount of 4.5 watts per RENTABLE SQUARE FOOT of the PREMISES; and
(d) hot and cold water in amounts required for normal lavatory and
drinking purposes. Subject to the provisions of Article 14.02
regarding charges for additional use, electricity and water will be
available twenty-four (24) hours per day, every day of the year.
Landlord shall provide heating, air conditioning, ventilation, and
freight elevator service at other than BUSINESS HOURS by
arrangement with Tenant, provided that Tenant pays Landlord's usual
charges for such overtime use, based on Landlord's actual cost
only. Landlord shall provide janitorial service Monday through
Friday, except on the dates of the holidays listed in the
definition of BUSINESS HOURS set forth in Article 22.28 below,
generally consistent with the cleaning specifications attached as
Exhibit C, and window washing at intervals determined by Landlord.
Landlord shall provide Tenant and its officers and employees with
access to the PREMISES twenty-four (24) hours per day, every day of
the year. Notwithstanding the above, Saturday air conditioning
shall be available to tenant between the hours of 8:00 a.m. to
12:00 noon at no cost to Tenant. However, Tenant shall be required
to request such Saturday service from Landlord, indicating the
areas to be cooled, by giving Landlord, at the Building Office, 24
hour notice.
Notwithstanding the foregoing, in the event Transamerica Center
changes ownership, the temperature in Tenant's premises will be
maintained (subject to any limits imposed by any governmental
authority) to the following standards: a) Summer: 72 degrees
Fahrenheit dry bulb, 50% relative humidity, plus or minus 5%, b)
Winter: 72 degrees Fahrenheit dry bulb, plus or minus 5%.
14.02 ADDITIONAL TENANT USE. Without the prior written consent of
Landlord, Tenant shall not use any apparatus or device in the
PREMISES, including, without limitation, electronic data-processing
machines, punch-card machines and machines using current in excess
of 110 volts, that would cause Tenant to use more electricity or
water than Landlord has undertaken to provide in Article 14.01,
notwithstanding the foregoing, Landlord acknowledges that
<PAGE>
Tenant is an existing tenant of the BUILDING, and that Landlord has
inspected and approves the equipment currently in use by Tenant in
the PREMISES. From time to time, Landlord may impose a reasonable
charge, as ADDITIONAL RENT, and establish reasonable rules and
regulations for (a) the use by Tenant of heating, air conditioning,
ventilation, or freight elevators at any time other than during
BUSINESS HOURS; (b) the use by Tenant of heating, air conditioning,
ventilation, water or electricity in amounts exceeding the amounts
Landlord has undertaken to provide in Article 14.01; and (c) the
use of any additional or unusual janitorial or cleaning services
required because of any non-building standard improvements in the
PREMISES, the carelessness of Tenant, the nature of Tenant's
business (including the operation of Tenant's business other than
during BUSINESS HOURS), or for the removal of any refuse and
rubbish from the PREMISES, other than discarded material placed in
wastepaper baskets and left for emptying as an incident to
Landlord's normal cleaning of the PREMISES. Landlord shall not be
required to provide janitorial services for portions of the
PREMISES used for preparing or consuming food or beverages,
storage, offset printing or as a lavatory. Landlord may charge
Tenant an additional charge for cleaning if Tenant has glass
partitions or an unusual amount of glass surfaces or wood floors in
the interior of the PREMISES. In order to determine or verify the
amount of any additional charge for excess use of electricity.
Landlord, or its electrical consultant, will install, at Landlord's
expense, meters to measure the electricity consumed in the
PREMISES. Additionally, Tenant shall receive the equivalent of .8
watts per square foot for electrical services which are not
separately metered. Tenant shall pay to Landlord the cost of any
electrical consumption in excess of 4.5 watts per useable square
foot of space occupied. In order to determine or verify the amount
of any additional charge for excess use of water, Landlord may
install, at Tenant's expense, a meter to measure the water
furnished to the PREMISES. Any additional charge for excess water
use shall include the reasonable charges of Landlord for the excess
amount of water furnished and for any additionally required pumping
or heating and any additional taxes, sewer rent or other charges
imposed by an government agency or public utility based on the
quantity of water furnished to occupants of the BUILDING or the
cost of such water.
14.03 TEMPERATURE MAINTENANCE. Landlord shall use due diligence
and its best efforts to keep the Building temperature within a
comfortable range within the PREMISES and the public quarters;
however, Landlord makes no representation with respect to the
adequacy or fitness of the air conditioning or ventilating
equipment in the BUILDING to maintain temperatures which may be
required for, or because of, any equipment of Tenant other than
normal fractional horsepower office equipment. If the temperature
otherwise maintained in any portion of the PREMISES by the heating,
air conditioning or ventilation systems is affected as a result of
(a) any lights, machines or equipment (including, without
limitation, electronic data-processing machines) used by Tenant in
the PREMISES, (b) occupancy of the PREMISES by more than one
person per 175 square feet of usable area of the PREMISES or (c) an
electrical load in excess of 4.5 watts per square foot of usable
area of the PREMISES, Landlord shall have the right, but not
<PAGE>
the obligation, to install any machinery and equipment which
Landlord reasonably deems necessary to restore temperature balance,
including without limitation, modifications to the standard air
conditioning equipment. The cost of the additional machinery and
equipment, including the cost of installation and any additional
cost of operation and maintenance, shall be paid by Tenant to
Landlord on demand, as ADDITIONAL RENT. If Tenant requests that
Landlord, at Tenant's sole expense, install such additional
machinery and equipment, Landlord's consent shall not be
unreasonably withheld. Landlord shall use its best efforts to
diligently correct any malfunction in the HVAC equipment.
14.04 EXCULPATION OF LANDLORD. Landlord shall not be liable for
any failure to furnish access to the PREMISES or any services or
utilities, when such failure is caused by acts of force majeure or
elective alterations or improvements to the PREMISES or the
BUILDING, and Tenant shall not be entitled to any damages nor shall
such failure abate or suspend Tenant's obligation to pay RENTS or
constitute or be construed as a constructive or other eviction of
Tenant. Tenant understands and agrees that temporary telephone and
other system interruptions may occur as normal events during the
course of installation work. Under no circumstances will Landlord
be held liable for any financial or other damages due to such
interruptions. In the event any governmental entity promulgates or
revises any law, or issues mandatory controls or voluntary
guidelines relating to the use or conservation of energy, water,
gas, light or electricity, the reduction of automobile or other
emissions, or the provision of any other utility or service
furnished by Landlord in the BUILDING, Landlord may, in its sole
discretion, take any appropriate action to comply with such
provisions of law, mandatory controls or voluntary guidelines,
including the making of alterations to the BUILDING. Neither
Landlord's actions nor its failure to act shall entitle Tenant to
any damages, abate of suspend Tenant's obligation to pay the RENTS
or constitute or be construed as a constructive or other eviction
of Tenant.
14.05 ACCESS. Landlord, its cleaning contractor and their
employees shall have access to the PREMISES at all times after 6:00
p.m. and before 7:00 a.m. daily and shall have the right to use,
without charge, all light, power and water in the PREMISES
reasonably required to clean the PREMISES.
14.06 DIRECTORY LISTING. Landlord, at Tenant's request, shall
maintain listings on the BUILDING directory of the name of Tenant,
and the names of any of Tenant's officers and employees, and the
name of any person lawfully occupying the PREMISES in accordance
with Article 12, provided that the names so listed shall not use
more than two (2) lines per one thousand (1,000) RENTABLE SQUARE
FEET. The reasonable charge of Landlord for any changes in such
listings requested by Tenant shall be paid by Tenant to Landlord on
demand, as ADDITIONAL RENT.
<PAGE>
ARTICLE XV - SUBORDINATION AND ATTORNMENT
15.01 SUBORDINATION. The Landlord owns the LAND and the BUILDING.
This LEASE, and all rights of Tenant hereunder, are subordinate to
the interests of (i) all present and future leases on the BUILDING
or the LAND (except for leases of commercial space in the
BUILDING); (ii) present and future mortgages encumbering the
BUILDING, the LAND, or any leases; (iii) all past and future
advances made under such mortgages, and (iv) all renewals,
modifications, replacements and extensions of any leases and
mortgages. Any Lessor ("Superior Lessor") under any lease
("Superior Lease") or any mortgagee ("Superior Mortgagee") under
any mortgage ("Superior Mortgage") shall have the right to elect by
a NOTICE that this LEASE shall be superior to any Superior Lease or
Superior Mortgage. The LEASE's subordination to all Superior
Leases and Superior Mortgages is self-operative, and no further
instrument of subordination shall be required. Tenant agrees,
however, at the request of Landlord, to promptly execute,
acknowledge and deliver any instrument required by Landlord, or by
any Superior Lessor or Superior Mortgagee, to evidence the
subordination, and to modify this LEASE to meet the requirements of
any lender selected by Landlord to provide any financing for the
BUILDING, provided that such amendment does not alter the LEASE
TERM, increase RENTS, materially adversely affect Tenant's rights
under this LEASE or place a greater legal burden on Tenant except
as required by law. Tenant hereby irrevocably appoints Landlord as
Tenant's attorney in fact, coupled with an interest, to execute,
acknowledge and deliver any such instrument on behalf of Tenant in
the event Tenant fails to do so within ten (10) days of Landlord's
request. No action taken by Landlord hereunder shall waive
Tenant's default in failing to provide any evidence of
subordination required hereunder.
15.02 ATTORNMENT. Tenant's obligations under this paragraph shall
be subject to and conditioned upon Tenant's receipt of a
nondisturbance agreement, in form and content reasonably acceptable
to Tenant, from each Successor. Tenant agrees to attorn to and
recognize as Tenant's landlord under this LEASE any Superior
Lessor, Superior Mortgagee, or purchaser taking title by or through
any Superior Lessor or Superior Mortgagee or by or through a
foreclosure sale ("Successor"). Tenant agrees to exercise any
instruments reasonably requested to evidence the attornment.
Tenant hereby irrevocably appoints Landlord as Tenant's attorney in
fact, coupled with an interest, to execute, acknowledge and deliver
on behalf of Tenant any such evidence of attornment if not
delivered by Tenant within twenty (20) days after requested to do
so. Upon attornment, this LEASE shall continue in full force and
effect. Tenant agrees to make any modification of this LEASE
requested by any Successor to Landlord hereunder, provided that
such modifications do not adversely affect any material right of
Tenant under this LEASE.
15.03 NONDISTURBANCE. Notwithstanding any of the provisions of
this Article 15 to the contrary, Tenant shall be allowed to occupy
the Premises subject to the conditions of this Lease, and this
Lease shall remain in effect until this Lease expires or is
<PAGE>
terminated in accordance with the provisions of this Lease.
Landlord shall use its best efforts to provide Tenant with a
nondisturbance agreement from all current and subsequent mortgage
and lien holders for the BUILDING.
ARTICLE XVI - QUIET ENJOYMENT
16.01 QUIET ENJOYMENT. Provided Tenant pays, when due, the RENTS,
and performs all of its material obligations hereunder, Tenant
shall have and peaceably enjoy the PREMISES for the LEASE TERM.
ARTICLE XVII - NOTICES
17.01 NOTICES. Any notice, demand, statement, request, or other
communication required to be made or permitted to be given by
Landlord or Tenant under this LEASE or under any law, statute or
ordinance, shall be in writing, and shall be properly given if
personally delivered or sent by first class, registered or
certified mail, postage prepaid, addressed to the other party at
its address as hereinafter set forth:
To TENANT: To LANDLORD:
Maxicare Health Plans Inc. Transamerica Occidental
1149 S. Broadway Life Insurance Company
Ninth Floor 1150 S. Olive Street
Los Angeles, CA 90015 Suite T-1100
Attn: Eugene L. Froelich Los Angeles, CA 90015
Executive Vice President Attn: Building Manager
in the Lease Summary or to such other address as either party may
from time to time direct by the giving of a NOTICE. A NOTICE shall
de deemed given (i) when delivered, if personally delivered, or
(ii) if mailed, forty-eight (48) hours after deposit into the
United States mail.
ARTICLE XVIII - ESTOPPEL CERTIFICATES
18.01 ESTOPPEL CERTIFICATES. Upon twenty (20) calendar days
NOTICE from Landlord an estoppel certificate, in form satisfactory
to Landlord, which (i) certificates that the LEASE is unmodified
and in full force and effect, or if modified, the extent of such
modification; (ii) sets forth the LEASE expiration date and any
options available to LEASE expiration dated may be extended; (iii)
sets forth the date through which the RENTS have been paid, and any
prepaid rent or security deposit held by the Landlord; (iv) sets
forth, in reasonable detail, the defaults, if any, of Landlord, or
any acts committed by Landlord or any failure to act by Landlord
which, with the passage of time, or giving of notice, or both, may
constitute a default under the LEASE; and (v) sets forth any
deductions, offsets, or credits against RENTS owned by Tenant to
<PAGE>
which Tenant reasonably believes it is entitled. Tenant agrees and
understands that the representations made in such estoppel
certificate shall be relied upon by Landlord and other parties with
whom Landlord deals. Tenant's failure to execute and deliver the
estoppel certificate pursuant to the terms hereof shall constitute
a default under the LEASE. In such event landlord shall have the
right to act as Tenant's attorney in fact, coupled with an
interest, to prepare an estoppel certificate, and Tenant shall be
held to the statements made by Landlord in such estoppel
certificate as if such certificate was prepared by Tenant.
ARTICLE XIX - BROKERS
19.01 BROKERS. Tenant warrants and represents that it has dealt
with no broker in connection with the LEASE other than Cushman &
Wakefield of California, Inc. for the Tenant and the Seeley Company
for the Landlord. Tenant shall indemnify and hold Landlord harmless
from and against any and all liability, loss, damage, expense,
claim, action, demand, suit or obligation arising out of or
relating to a breach of this representation.
ARTICLE XX - EXCULPATION AND INDEMNIFICATION
20.01 EXCULPATION. Tenant acknowledges, as a material part of the
consideration for Landlord entering into the LEASE, that Landlord,
and Landlord's partners, directors, officers, agents, or employees
(collectively "Landlords/Partners"), will not be liable to Tenant,
or any party claiming by or through Tenant, for any loss or injury
suffered by Tenant or any other person, or for damage to any
property, unless such loss, injury or damage is caused by
Landlord's gross negligence or misconduct.
Tenant agrees that neither Landlord or Landlords/Partners shall be
liable for any consequential damages arising out of any loss of use
of the PREMISES or any part thereof or any equipment or facilities
within the PREMISES. Landlord agrees that Tenant shall not be
liable for any consequential damages arising out of any loss of use
of the BUILDING or any part thereof or any equipment or facilities
within the BUILDING.
20.02 INDEMNIFICATION. Tenant agrees to defend, indemnify and
hold harmless Landlord, all Superior Lessors and Superior
Mortgagees of Landlord, and their respective partners, directors,
officers, agents and employees from and against any and all claims,
demands, liability, loss, damage, costs, and expenses arising out
of any acts, omissions or negligence in or about the BUILDING which
is the direct result of Tenant's negligence or intentional
misconduct and Landlord agrees to defend, indemnify and hold
harmless Tenant, from and against any and all claims, demands,
liability, loss, damage, costs, and expenses arising out of any
acts, omissions, or negligence in or about the BUILDING which is
the direct result of the Landlord's negligence or intentional
misconduct. In the event that any action or proceeding is brought
<PAGE>
against any party herein indemnified, arising out of any act which
is claimed to be the direct result of either party's negligence or
misconduct, said party upon NOTICE from such person, shall defend
such action or proceeding at its sole cost and expense by counsel
reasonably approved by the other party.
20.03 LIMITATION OF LIABILITY. Neither the Landlord, nor
Landlords/Partners, nor any successor to Landlord's interest, shall
be personally liable for the performance of Landlord's obligations
under this LEASE. Tenant shall look only to Landlord's interest in
the LAND and BUILDING or to the Proceeds of insurance or
condemnation thereof, and to no other assets or property of
Landlord, Landlords/Partners or any successors to Landlord, for the
satisfaction of Tenant's remedies under this LEASE, or for the
satisfaction of any judgment or other award against Landlord.
Landlord agrees not to proceed against the personal assets of
Tenant's officers and directors for damages resulting from the
acts, misconduct or negligence of Tenant.
20.04 TRANSFER OF LANDLORD'S INTEREST. Landlord and each
successor to Landlord (collectively "Landlord") shall be fully
released from the performance of Landlord's obligations subsequent
to their transfer of Landlord's interest in the BUILDING. In the
event of a transfer, Landlord's obligations shall be binding upon
any successor. Landlord shall not be liable for any acts occurring
after its transfer of the BUILDING. Except for acts identified in
the estoppel certificate as set forth in Article XVIII, any
successor in interest to Landlord shall not be liable for any acts
occurring prior to the transfer of the BUILDING, or be subject to
any offset, defense or counterclaim accruing prior to such or be
bound by any payment of and RENTS in excess of one (1) month in
advance. Landlord agrees to transfer any security deposit to any
successor, after which Landlord shall be fully released from any
liability therefor.
ARTICLE XXI - PARKING
21.01 TENANT'S PARKING. Tenant shall have the right to use the
BUILDING'S parking facilities located in Lots 121 and 104 (see
attached Exhibit H) for the parking of up to Three (3) automobiles
per 1,000 rentable square feet leased, subject to payment to
Landlord, or, at Landlord's option, to the operator of the parking
facilities, a $35.00 monthly fee per space for such parking, fixed
during the period between June 1, 1994 and May 31, 1997 and a
$50.00 monthly fee during the period between June 1, 1997 and May
31, 2000. Notwithstanding the foregoing, Landlord acknowledges
that Tenant has been paying a fee for such parking since June 1,
1994, and Landlord shall provide Tenant with a credit, to be
applied against future parking payments, in an amount equal to the
difference between the amounts that Tenant has paid since June 1,
1994 and the amount that Tenant would have paid since June 1, 1994
if Tenant had been paying the rates set forth in this Article XXI
since June 1, 1994. It is understood that Lots 121 and 104 have
sufficient spaces to provide required parking at the ratio of 3
automobiles per 1,000 rentable square feet leased for all but 16
<PAGE>
spaces. Said 16 spaces shall be provided to Tenant in the parking
facility numbered 136 at prevailing market rates. Tenant shall
have the right to upgrade parking spaces by substituting spaces in
the desired locations for spaces in Lots 121 and 104 if spaces are
available. Tenant shall pay for upgraded spaces at the lowest
prevailing rates for non-Transamerica employees for such parking.
It is understood that for each space that is upgraded, Tenant shall
give up a space in Lots 121 or 104. Landlord reserves the right to
substitute other parking facilities for Lots 121 and 104 at the
fixed rate subject to Tenant's reasonable consent. Tenant's right
to use the parking facilities shall be in connection with other
tenants of the BUILDING. Tenant agrees to be bound by the rules
and regulations governing the parking facilities, to be adopted
from time to time by Landlord or the operator of the parking
facilities. Tenant's visitors shall have the right to use the
parking facilities, subject to availability and to the rules and
regulations governing visitor parking from time to time adopted by
the Landlord or the operator of the parking facilities. No third
party tenant shall receive a lower parking rate than Tenant for
comparable parking spaces. Tenant's failure to pay agreed to
parking fees shall give Landlord the immediate right upon ten days
written notice to terminate Tenant's right to use such parking
facilities. Tenant shall have the right to buy parking validations
for the use of Tenant's visitors.
ARTICLE XXII - DEFINITIONS
22.01 A. OPERATING COSTS. The term OPERATING COSTS shall mean
the sum of the amounts determined in Articles 22.Ol(A), (B), and
(C), inclusive. If at least ninety-five percent (95%) of the
rentable area of the BUILDING is not occupied during the
appropriate calendar year period, then the OPERATING COSTS, and
each component of OPERATING COSTS for such period, shall be deemed
to be equal to the OPERATING COSTS which would have been incurred
for the entirety of the calendar year if ninety-five percent (95%)
of the rentable area of the BUILDING was occupied during the
entirety of the calendar year including without limitation the
following:
1. Any form of assessment, business or license fee or tax,
commercial rental tax, levy, charge, excise penalty, tax or similar
imposition or substitution for any of the foregoing (hereinafter,
collectively, "TAX"), imposed by any authority having the direct
power to TAX, including any city, county, state or federal
government, or any school, agricultural, lighting, drainage or
other improvement or special assessment district thereof, as
against any legal or equitable interest of Landlord in the PROJECT,
including, but not limited to, any increases in such TAX as a
result of any transfer, sale or sales of the PROJECT or any part
thereof.
2. Any tax, fee or excise on the act of entering into this
LEASE or the occupancy of Tenant, on the rental income received by
Landlord, or in connection with the business of renting space on
the PROJECT levied or assessed at any time against Landlord.
<PAGE>
3. Any reasonable fees, costs and disbursements incurred in
connection with proceedings to contest or determine PROPERTY-
RELATED TAXES; including all costs of any kind paid or incurred by
Landlord as Landlord deems necessary, to employ attorneys,
accountants, appraisers and consultants for the purpose of
maintaining the assessed value of the PROJECT at the lowest
possible level.
PROPERTY-RELATED TAXES shall not include income, franchise,
transfer, inheritance, estate, generation-skipping, gift or capital
stock taxes, unless, due to a change in the method of taxation, any
of such taxes are levied or assessed against Landlord in lieu of,
in whole or in part, or as an addition to, any other TAX which
would otherwise constitute a PROPERTY RELATED TAX.
Tenant shall not be required to pay any increases in
PROPERTY-RELATED TAXES attributable to a sale or other transfer of
ownership of the BUILDING that gives rise to an increase in
PROPERTY-RELATED TAXES under Proposition 13 of the BUILDING during
the term of this Lease. After June 1, 2000 Tenant shall receive no
reduction in its share of real estate increases attributable to a
sale or other transfer of ownership of the BUILDING that gives rise
to an increase in PROPERTY-RELATED TAXES under Proposition 13 of
the BUILDING.
Tenant shall also receive a reduction in its share of any
future Metro Rail assessment resulting from the current assessment
district being expanded to include the BUILDING. Said reduction
shall be 25% of the Tenant's share of the assessment during the
original term of the Lease.
Landlord shall ensure that the BUILDING is fully assessed
for PROPERTY- RELATED TAXES during the entire term of this Lease.
B. OPERATING EXPENSES. OPERATING EXPENSES shall mean the
total of those expenses incurred by Landlord in the operation and
maintenance of the PROJECT, in accordance with accepted principles
of sound accounting practice as applied to the operation,
maintenance and security of a first-class institutional office
building including, without limitation, the following:
1. All utility costs not otherwise charged directly to
Tenant or any other tenant of the PROJECT, including, without
limitation, the cost of air conditioning, water, electricity,
steam, heating, mechanical, ventilation, escalator and elevator
systems, the cost of supplies and equipment and maintenance and
service contracts in connection therewith, and any sales, use, and
excise taxes on such goods and services.
2. All wages and salaries of employees, independent
contractors, or agents of the Landlord engaged in the operation,
maintenance and security of the PROJECT; employer's social security
taxes, payroll taxes, unemployment taxes or insurance premiums,
including Workers Compensation, pension benefits, and any other
taxes which may be levied on such wages and salaries; the cost of
disability benefits, or any other fringe benefits for such
employees.
<PAGE>
3. All expenses for janitorial services, trash, pest
control, waste disposal, garbage, governmental services such as
police and fire protection, servicing, replacing, equipping and
maintenance of all security and fire alarms, fire pumps, sprinkler
systems and fire extinguishers and hose cabinets; guard services;
painting; window cleaning and landscaping and gardening, including
any sales, use and excise taxes on such services.
4. All normal repairs to, normal replacement of, and normal
physical maintenance of the PROJECT, including, without limitation,
mechanical equipment and appurtenances thereto, and the cost of all
supplies, uniforms, equipment, tools, materials, and any other
capital expenditures necessary to the operation and maintenance of
the PROJECT, including sales, use, and excise taxes on such goods
and services. Said costs shall not include latent structural or
mechanical defects as set forth in 9.01.
5. Any license, permit and inspection fees required in
connection with the operation of the PROJECT.
6. Any auditor's fees for public accounting normally
provided for the operation and maintenance of the PROJECT.
7. Any legal fees, costs and disbursements as would normally
be incurred in connection with the operation, maintenance and
repair of the PROJECT (Other than in connection with PROPERTY-
RELATED TAX proceedings).
8. All reasonable fees for management services provided by
an independent management company or by Landlord, provided such
fees do not exceed three percent (3%) of the annual rental income
of the BUILDING.
9. Any depreciation and amortization expenses, including,
without limitation:
i. The annual amortization of costs, including financing
costs, if any, incurred by Landlord for any Capital improvements
installed or paid for by Landlord and required by any new (or
change in) laws, rules or regulations of any governmental or quasi-
governmental authority having jurisdiction, which costs are
amortized over the useful life of such capital improvement;
ii. The annual amortization of costs, including financing
costs, if any, of any equipment, device or capital improvement
incurred and reasonably intended as a labor-saving measure or to
effect other economies in the operation or maintenance of the
PROJECT, which costs are amortized over their useful life (provided
the annual benefits realized therefrom are reasonably related to
the annual amount to be amortized) and which do not rebound
primarily to the benefit of any particular tenant; and
Depreciation shall be determined by dividing the
original cost of such capital expenditure by the number of years of
useful life of the capital item acquired, which useful life shall
<PAGE>
be reasonably determined by Landlord in accordance with generally
accepted accounting principles and practices in effect at the time
of acquisition of the capital item.
10. All costs of any evaluations or studies and/or
capital expenditures which Landlord is required to make during the
term of this LEASE which are required by any applicable law or
lawful city, county, state of federal regulatory authority.
11. All costs of any evaluations or studies and/or
capital expenditures for fire and safety or energy conservation
equipment.
12. Such other usual costs and expenses which are paid by
other landlords for the purpose of providing for the on-site
operation, servicing, maintenance and repair of other first-class
institutional office buildings in the downtown Los Angeles
financial district.
13. The following items are excluded from OPERATING
EXPENSES:
i. Any ground lease rental;
ii. Costs incurred by Landlord with respect to
goods and services (including utilities sold
and supplied to tenants and occupants of the
Building) to the extent that Landlord is
entitled to reimbursement for such costs;
iii. Costs, including without limitation permit,
license and inspection costs, incurred with
respect to the installation of Tenant
improvements made for tenants in the BUILDING
other than Tenant or incurred in renovating or
otherwise improving, decorating, painting or
redecorating vacant space for tenants or other
occupants of the BUILDING;
iv. Depreciation and amortization, except for
straight-line amortization of those capital
expenditures to be included in the definition
of Operating Expenses as provided herein, all
as determined in accordance with generally
accepted accounting principles, consistently
applied, and when amortization is
permitted or required, the item shall be
amortized over its useful life;
v. Leasing commissions, attorneys' fees, court
costs and all other costs and expenses incurred
in connection with negotiations or disputes
with past, present or prospective tenants or
other occupants of the BUILDING or incurred in
connection with negotiating or enforcing the
provision of any lease of space in the BUILDING
<PAGE>
unless such enforcement benefits at least one
(1) Tenant or any contract for the furnishing
of materials, goods and services to the
BUILDING that is reimbursed by any Tenant;
vi. Expenses in connection with services or other
benefits which are not offered to Tenant, or
for which Tenant is charged directly, or which
are provided to another tenant or occupant of
the BUILDING and not to Tenant;
vii. Costs incurred by Landlord due to the violation
by Landlord or any tenants of the terms and
conditions of any lease of space in the
BUILDING;
viii. All amounts paid to Landlord or to subsidiaries
or affiliates of Landlord for goods or services
in or for the BUILDING to the extent such
amounts exceed the amounts that would have been
paid if such services had been rendered by or
such goods purchased from independent third
parties not controlled by or affiliated with
Landlord on a competitive basis;
ix. Interest, points and fees on debt or
amortization on or for any mortgage or
mortgages encumbering the BUILDING and/or the
Site, or any part thereof, and all principal,
escrow deposits and other sums paid on or in
respect to any indebtedness (whether or not
secured by a mortgage lien) and on any equity
participations of any lender or lessor, and all
costs incurred in connection with any
financing, refinancing or syndication of the
Site or BUILDING, or any part thereof;
x. Landlord's general corporate overhead
and general and administrative
expenses;
xi. Any compensation paid to clerks,
attendants or other persons in
commercial concessions operated by
Landlord or in the Parking facilities
of the BUILDING;
xii. All items and services for which Tenant
or any other tenant in the BUILDING
reimburses Landlord or which Landlord
provides selectively to one or more
tenants (other than Tenant) without
reimbursement;
xiii. Advertising and promotional
expenditures;
<PAGE>
xiv. Electric power costs for which any
tenant or occupant of the BUILDING
directly contracts with the local
public service company;
xv. Services provided and costs incurred in
connection with the operation of, or
any other expenditure for or relating
to, the Parking facilities;
xvi. Tax and/or assessment penalties and
interest and late charges incurred as a
result of Landlord's negligence or
inability or unwillingness or failure
for any reason to make such payments
when due;
xvii. All assessments which are not
specifically charged to Tenant because
of Tenant's acts, which can be paid by
Landlord in installments, shall be
paid by Landlord in the maximum number
of installments permitted by law and
charged as OPERATING EXPENSES only in
the year in which the assessment
installment is actually paid;
xviii. Taxes and assessments attributable to
the tenant improvements of tenants
other than Tenant or the property of
tenants other than Tenant if such
taxes or assessments are separately
paid or separately billed to and
payable by any tenant other than
Tenant;
xix. Aggregate management fees of the
BUILDING and the PROJECT (and any
improvements thereon except for
the Parking facilities) in excess of
those charged in comparable
institutional buildings in downtown Los
Angeles;
xx. Landlord covenants and agrees at all
times during the Term of this Lease (i)
to keep OPERATING EXPENSES consistent
with the operation of a comparable
institutional office building in the
Downtown Los Angeles, California area,
and (ii) to diligently protest and
contest any increase in real property
taxes for the BUILDING, and Common
Areas, or any portion thereof, which a
prudent owner of a comparable
<PAGE>
institutional office building in the
Downtown Los Angeles, California
area would protest and contest.
xxi. Tenant shall have the right at any
reasonable time (but not more
frequently than one time during any 12-
month period) upon reasonable prior
notice to Landlord to review, make
extracts from, and audit or cause to be
audited all relevant books, records and
documents pertaining to OPERATING
EXPENSES (including real property
taxes) or any portion thereof.
Landlord understands that each such
review or audit may take more than one
day, and Tenant and its auditors shall
have such time as is reasonably
necessary to complete each such review
and/or audit. If any such audit
reveals that Landlord made an error in
calculating and reporting the actual
amount of OPERATING EXPENSES for any
12-month period and such error resulted
in an aggregate overpayment by Tenant
of two percent (2%) or more, then
Landlord shall reimburse Tenant for the
cost and expense of such audit. If any
such audit reveals Landlord has made an
error in calculating and reporting the
actual amount of OPERATING EXPENSES for
any 12-month period and such error
resulted in an underpayment by Tenant,
then Tenant shall pay Landlord such
underpayment together with all
reasonable expense incurred by Landlord
assisting Tenant's audit. Tenant shall
use an established and recognized
audit firm or company reasonably
acceptable to Landlord. Landlord and
Tenant agree the following audit firms
may be used:
(a) Arthur Anderson
(b) Peat Marwick
(c) Coopers & Lybrand
(d) Price Waterhouse
(e) Deloitte & Touche
(f) Ernst & Young
Tenant must obtain Landlord's written
approval before using any other firms.
xxii. If Tenant does not request a review or
audit of Landlord's books and records
relating to OPERATING EXPENSES within
one hundred and eighty (180) days after
<PAGE>
Tenant's receipt of Landlord's final
year-end Actual Statement, such Actual
Statement shall be deemed to be binding
on Landlord and Tenant for the period
covered by such statement; provided,
however, that for a period of two
years, following Landlord's providing
Tenant with a final statement of annual
OPERATING EXPENSES:
Tenant shall have the right to
contest any final year-end Actual
Statement and any OPERATING EXPENSES
or other reports furnished to Tenant
for said period in any lawsuit
commenced by Tenant or against Tenant
or otherwise pertaining to Tenant.
Tenant shall have the right after the
expiration of any such 90 day period
to contest any component of OPERATING
EXPENSES if Tenant or any auditor
engaged by Tenant determines during
any review or audit of OPERATING
EXPENSES that an error has been made
in Landlord's calculation of
OPERATING EXPENSES and such error or
a similar error might have been in
the calculation of OPERATING EXPENSES
for said two year period.
C. INSURANCE EXPENSES. INSURANCE EXPENSES shall mean all
premiums and other charges incurred by Landlord with respect to the
insurance of the PROJECT including, without limitation, the
following: (i) fire and extended coverage insurance, including
earthquake, windstorm, hail and explosion; (ii) riot attending a
strike, civil commotion, aircraft, vehicle and smoke insurance;
(iii) public liability and property damage insurance; (iv) elevator
insurance; (v) Workers Compensation Insurance for the employees
specified in clause B.2. above; (vi) boiler and machinery
insurance, sprinkler leakage, water damage, legal liability,
burglary, fidelity and pilferage insurance on equipment and
materials; (vii) rent abatement, rent continuation, business
interruption insurance, and similar types of insurance: and (viii)
such other insurance as is customarily carried by operators of
other first-class institutional office buildings in the downtown
Los Angeles financial district.
22.02 LEASE. The term LEASE shall mean this LEASE together with
all EXHIBITS attached to this LEASE. Any terms and conditions set
forth in any of the EXHIBITS to this LEASE shall be deemed to have
been incorporated in this LEASE.
22.03 LANDLORD. The term Landlord shall mean the Landlord named
in this LEASE or any successor in interest, but only for the time
that any such person owns the BUILDING or the PROJECT.
<PAGE>
22.04 TENANT. The term Tenant shall mean the Tenant named herein
or any successor in interest.
22.05 PREMISES. The term PREMISES shall mean the space outlined
on Exhibit A attached hereto but excluding from that space all of
the BUILDING, including, without limitation, the roof, exterior
walls, court corridor walls and doors, any terraces or roofs
adjacent to the PREMISES, a space between hung ceilings and the
slabs above, any space in or next to the PREMISES used for shafts,
stacks, pipes, conduits, fan rooms, decks, electric, telephones or
other utilities, sinks or other BUILDING facilities, and the use of
those areas, as well as access thereto through the PREMISES for the
purposes of operation, maintenance, decoration and repair of the
PREMISES of the BUILDING. Landlord reserves the right, and Tenant
shall permit Landlord, to install, erect, use and maintain pipes,
ducts and conduits in and through the PREMISES as long as these
items do not materially interfere or adversely affect Tenant's use
of the PREMISES.
22.06 LEASE TERM. The term LEASE TERM shall mean the term
described in Article 2 and any extensions or renewals of that term
pursuant to the provisions of this LEASE.
22.07 EXHIBIT. The term EXHIBIT shall mean any Exhibits attached
hereto and incorporated herein by reference.
22.08 RENTABLE SQUARE FEET. The term RENTABLE SQUARE FEET shall
mean the square footage determined in accordance with the criteria
established by BOMA, the Building Owners & Managers Association.
22.09 RENT COMMENCEMENT DATE. The term RENT COMMENCEMENT DATE
shall mean the date established in accordance with the provisions
of Article 2.OlA.
22.10 READY FOR OCCUPANCY. Intentionally deleted.
22.11 DELAYS CAUSED BY TENANT. Intentionally deleted.
22.12 BUILDING. The term BUILDING shall mean the Transamerica
Center, including the parking garage, surface parking lots, outside
plazas, lobbies, office, commercial and retail space, landscaping,
water elements, art and sculpture, and the LAND.
22.13 LAND. The term LAND shall mean that portion of that certain
real property on which the BUILDING is situated, subject to all
easements, covenants, rights of way, exceptions and other matters
of record affecting said real property.
22.14 PROJECT. The term PROJECT means the LAND, BUILDING and all
other improvements and structures of every kind and nature, located
on, or adjacent to (to the extent Landlord deems beneficial to
improve, repair or maintain the adjacent property), the LAND.
22.15 RENTS. The term RENTS shall mean INITIAL MONTHLY BASIC
RENT, ADJUSTED MONTHLY BASIC RENT, PERCENTAGE RENT and ADDITIONAL
RENT.
<PAGE>
22.16 SCHEDULED RENT COMMENCEMENT DATE. The term SCHEDULED RENT
COMMENCEMENT DATE refers to and shall be June 1, 1994.
22.17 TRANSFER. The term TRANSFER shall mean any transfer by
ASSIGNMENT, SUBLEASE, sale, conveyance, license or otherwise, to
any PERSON, of all or any part of Tenant's interest in the PREMISES
and/or LEASE.
22.18 SUBLET PORTION. The term SUBLET PORTION shall mean that
portion of the PREMISES outlined or described in the TRANSFER
NOTICE which is the subject of the proposed SUBLEASE.
22.19 PERSON. The term PERSON shall mean any natural person or
persons, a partnership, corporation, and any other form of business
or legal association or entity.
22.20 ASSIGNMENT. The term ASSIGNMENT shall mean any Transfer by
Tenant of all of its interest in the PREMISES and/or the LEASE to
any PERSON for the entire LEASE TERM.
22.21 TRANSFER NOTICE. The term TRANSFER NOTICE shall mean NOTICE
to Landlord, of any proposed TRANSFER accompanied by (a) a
conformed or photostatic copy of all written documents pursuant to
which the ASSIGNMENT or SUBLEASE is to be accomplished, (b) a
statement setting forth in reasonable detail the identity of the
proposed assignee or sublessee and the nature of its business and,
in the event of a SUBLEASE, the SUBLET PORTION, and (c) current
financial information with respect to the proposed assignee or
sublessee including, without limitation, its most recent financial
report.
22.22 SUBLEASE. The term SUBLEASE shall mean any TRANSFER of
Tenant's entire interest in the LEASE, or of the entire PREMISES,
for less than the entire Term, or a TRANSFER of any lesser part of
Tenant's interest in the LEASE, or any lesser part of the PREMISES,
for any period of time, including permitting the PREMISES to be
used by any licensee or concessionaire or by any PERSON other than
Tenant.
22.23 RECAPTURE RIGHTS. N/A
22.24 NET PROFITS. The term NET PROFITS shall mean all amounts
and sums which Tenant receives from any assignee or sublessee,
directly or indirectly, attributable to the PREMISES, or to the
SUBLET PORTION subject to the SUBLEASE, during the term of such
SUBLEASE or ASSIGNMENT, less all RENTS which Tenant must pay to
Landlord pursuant to the LEASE for such SUBLET PORTION or PREMISES
during the term of such SUBLEASE or ASSIGNMENT and less the cost of
tenant improvements, rent concessions and usual and customary
commissions and professional fees and related costs. Said profits
shall be equally shared between Landlord and Tenant.
22.25 REASONABLENESS STANDARD. The term REASONABLENESS STANDARD
shall mean that the Landlord shall not be deemed to have
unreasonably withheld its consent if such consent is conditioned
upon one or more of the following requirements:
<PAGE>
A. The business of the proposed assignee or sublessee and
its use of the PREMISES, or the SUBLET PORTION, must be consistent
with the Permitted Use and, in Landlord's judgment, be in keeping
with the standards of the BUILDING.
B. The proposed assignee or sublessee must be reputable and
of good character with sufficient assets and income, in Landlord's
judgment, to bear the financial responsibilities of Tenant under
this LEASE, and Landlord must be furnished with reasonable proof
thereof.
C. Intentionally deleted.
D. Intentionally omitted.
E. The form of the proposed SUBLEASE or ASSIGNMENT must be
satisfactory to Landlord and shall comply with the applicable
provisions of Article 12.
F. Tenant shall have complied with the terms and conditions
of this LEASE in connection with any proposed ASSIGNMENT or
SUBLEASE.
G. Intentionally omitted.
H. Intentionally deleted.
I. Tenant shall make arrangements satisfactory to Landlord
to allow Landlord to receive directly from sublessee or assignee
the Landlord's share of the NET PROFIT from any SUBLEASE or
ASSIGNMENT.
22.26 INDEX. Intentionally deleted.
22.27 DELAYS CAUSED BY LANDLORD. Intentionally deleted.
22.28 BUSINESS HOURS. The term BUSINESS HOURS shall mean 8:00
a.m. to 6:00 p.m. Monday through Friday except for New Year's Day,
Memorial Day, Independence Day, Labor Day, Thanksgiving Day and
Christmas, and such other holidays as are generally observed in the
City of Los Angeles by the closing of businesses.
22.29 COMMON AREAS. The term COMMON AREAS shall mean the common
lobbies, corridors, stairways and stairwells, restrooms, elevators,
plaza, common walkways and driveways necessary for access to the
PROJECT.
22.30 TENANT IMPROVEMENTS. The term TENANT IMPROVEMENTS shall
mean those improvements to be made by Landlord to the PREMISES, at
Tenant's expense, which shall be agreed upon and acceptable to
Landlord and Tenant, in accordance with Exhibit E,.
22.31 ADJUSTED MONTHLY BASIC RENT. The term ADJUSTED MONTHLY
BASIC RENT shall have the meaning set forth in Article 3 of the
LEASE.
<PAGE>
22.32 INITIAL MONTHLY BASIC RENT. The term INITIAL MONTHLY BASIC
RENT and MONTHLY BASIC RENT shall have the meaning set forth in
Article 3 of the LEASE.
22.33 SUBSTITUTE SPACE. The term SUBSTITUTE SPACE shall have the
meaning set forth in Article 13 of the LEASE.
22.34 LAW. The term LAW shall mean any law, statute, ordinance,
rule or regulation passed, or judicial decision rendered, by any
governmental entity with authority over the PROJECT, Landlord,
Tenant or the operation of the BUILDING.
22.35 NOTICE. The term NOTICE shall mean any notice, demand,
statement, request or other communication required to be made or
permitted to be given by Landlord or Tenant, delivered in
accordance with Article 17 of the LEASE.
22.36 INTEREST RATE. The term INTEREST RATE shall mean the lower
of the maximum interest rate permitted by LAW or two percent (2%)
above the rate publicly announced from time to time by the Bank of
America as its Prime Rate.
22.37 RULES AND REGULATIONS. The term RULES AND REGULATIONS shall
mean the document attached hereto as Exhibit B and incorporated
herein by reference.
22.38 FAIR MARKET RENTAL RATE. The term FAIR MARKET RENTAL RATE
means the fair market value rental that other landlords leasing
similar space in first-class, institutional headquarters buildings
in downtown Los Angeles comparable to the BUILDING at the time of
the determination of the fair market value rental, would normally
obtain from any unrelated prospective tenant for any general office
use of such space, as such space is then improved, and taking into
account the value of any rent or equivalent concessions then
usually and customarily given in connection with the leasing of
comparable space for a comparable lease term, such as free rent
periods and tenant improvements allowances.
ARTICLE XXIII - MISCELLANEOUS
23.01 MEMORANDUM OF LEASE. Tenant shall not record this LEASE.
Tenant agrees, however, at the request of Landlord, to execute and
acknowledge a Memorandum of LEASE in recordable form.
23.02 ENTIRE AGREEMENT. This LEASE and all exhibits and addenda
hereto contains all of the agreements and understandings relating
to the leasing of the PREMISES and the obligations of Landlord and
Tenant in connection with such LEASE. Landlord has not made, and
Tenant is not relying upon, any warranties, or representations,
promises or statements made by Landlord or any agent of Landlord,
except as expressly set forth herein. This LEASE supersedes any
and all prior agreements and understandings between Landlord and
Tenant and alone expresses the agreement of the parties.
<PAGE>
23.03 AMENDMENTS. This LEASE shall not be amended, changed or
modified in any way unless in writing executed by Landlord and
Tenant. Landlord shall not have waived or released any of its
rights hereunder unless in writing and executed by the Landlord.
23.04 SUCCESSORS. Except as expressly provided herein, this LEASE
and the obligations of Landlord and Tenant shall bind and benefit
the successors and assigns of the parties hereto.
23.05 FORCE MAJEURE. Landlord and Tenant shall incur no liability
to the other party, and shall not be responsible for any failure to
perform any of their respective obligations hereunder, if such
failure is caused by reason of strike, other labor trouble,
governmental rule, regulation, ordinance, statute or
interpretation, shortages of materials, natural resources or labor,
or by fire, earthquake, civil commotion, or any and all other
causes reasonably beyond control of said party. The amount of time
for Landlord or Tenant to perform any of its obligations shall be
extended for the amount of time Landlord or Tenant is delayed in
performing such obligation by reason of such force majeure
occurrence.
23.06 SURVIVAL OF OBLIGATIONS. Any obligations of Tenant or
Landlord accruing prior to the expiration of the LEASE shall
survive termination of the LEASE, and Tenant or Landlord shall
promptly perform all such obligations whether or not this LEASE has
expired.
23.07 LIGHT AND AIR. No diminution or shutting off of light, air
or view by any structure now or hereafter erected shall in any
manner effect this LEASE or the obligations of Tenant hereunder, or
increase any of the obligations of Landlord hereunder.
23.08 GOVERNING LAW. This LEASE shall be governed by, and
construed in accordance with, the laws of the State of California.
23.09 SEVERABILITY. In the event any provision of this LEASE is
found to be unenforceable, the remainder of this LEASE shall not be
affected, and any provision found to be invalid shall be enforced
to the extent permitted by law. The parties agree that in the event
two different interpretations may be given to any provision
hereunder, one of which will render the provision enforceable, the
interpretation rendering the provision enforceable shall be
adopted.
23.10 CAPTIONS. All captions, headings, titles and numerical
references are for convenience only and shall have no effect on the
interpretation of this LEASE.
23.11 CONSTRUCTION. Tenant acknowledges that it has read and
reviewed this LEASE and that it has had the opportunity to confer
with counsel in the negotiation of this LEASE. Accordingly, this
LEASE shall be construed neither for nor against Landlord or
Tenant, but shall be given a reasonable interpretation in
accordance with the meaning of its terms and the intent of the
parties.
<PAGE>
23.12 INDEPENDENT COVENANTS. Each covenant, agreement, obligation
or other provision of this LEASE to be performed by Tenant are
separate and independent covenants of Tenant, and not dependent on
any other provision of the LEASE.
23.13 NUMBER AND GENDER. All terms and words used in this LEASE,
regardless of the number or gender in which they are used, shall be
deemed to include the appropriate number and gender, as the context
may require.
23.14 TIME IS OF THE ESSENCE. Time is of the essence of this
LEASE and the performance of all obligations hereunder.
23.15 JOINT AND SEVERAL LIABILITY. If Tenant comprises more than
one person or entity, or if this LEASE is guaranteed by any party,
all such person shall be jointly and severally liable for payment
of RENTS and performance of Tenant's obligations hereunder.
23.16 EXHIBITS. Exhibits A through L to this Lease are
incorporated in the LEASE by reference and made a part hereof.
23.17 OFFER TO LEASE. The submission of this LEASE to Tenant or
its broker or other agent, does not constitute an offer to Tenant
to lease the PREMISES. This instrument shall have no force and
effect until it is executed and delivered by Tenant to Landlord and
executed by Landlord. The parties hereby acknowledge that Landlord
may market and lease the PREMISES until such time as this LEASE
has been executed by Tenant and Landlord and the LEASE is in full
force and effect.
23.18 HOLDOVER. If Tenant shall for any reason remain in
possession after the expiration of either the term hereby granted
or any renewal or extension thereof (except pursuant to such
renewal or extension), or after the date specified in any notice of
termination given by either Landlord or Tenant, such possession
shall be as a month-to-month tenant during which time Tenant's
liability for rent shall be limited to payment of a monthly rent in
the amount equal to 125% of that provided for during the last month
of the preceding term during the first three (3) months of such
holdover tenancy and 150% thereafter.
<PAGE>
IN WITNESS WHEREOF, Landlord and Tenant have duly executed
this LEASE as of the date set forth below the signature lines.
TENANT LANDLORD
MAXICARE HEALTH PLANS, INC. TRANSAMERICA OCCIDENTAL LIFE
a Delaware Corporation INSURANCE COMPANY
a California Corporation
By: /S/ EUGENE L. FROELICH By: /S/ LYMAN K. LOKKEN
Title: Chief Financial Officer Title: Investment Officer
By: /S/ GEORGE R. BATCHELOR By: /S/ LOUISE K. NEAL
Title: Vice President Title: Senior Vice President
Dated: October 10, 1994 Dated: October 12, 1994
-31-
<PAGE>
EXHIBIT A
Page 1 of 2
MAP OF BROADWAY BUILDING - 9TH FLOOR
<PAGE>
EXHIBIT A
Page 2 of 2
MAP OF BROADWAY BUILDING - 8TH FLOOR
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EXHIBIT A
PAMPHLET "STANDARD METHOD FOR MEASURING FLOOR AREA
IN OFFICE BUILDINGS" ISSUED BY THE BUILDING OWNERS
AND MANAGERS ASSOCIATION INTERNATIONAL
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EXHIBIT B
TRANSAMERICA CENTER
RULES AND REGULATIONS
1. No sign, placard, picture, advertisement, name or notice
shall be installed or displayed on any part of the outside or
inside of the BUILDING without the prior written consent of
Landlord. Landlord shall adopt and furnish to Tenant reasonable
general guidelines relating to signs inside the BUILDING on the
office floors. Tenant shall conform to such guidelines, but may
request approval of Landlord for modifications. Landlord shall
have the right to remove, at Tenant's expense and without notice,
any sign installed or displayed in violation of these rules. All
approved signs or lettering on doors and walls shall be printed,
painted, affixed or inscribed at the expense of Tenant by a person
approved by Landlord.
2. No curtains, blinds, shades, screens or hanging plants or
other similar objects attached to or used in connection with any
window or door of the PREMISES shall be permitted except for
BUILDING STANDARD window coverings. No awning shall be permitted
on any part of the PREMISES. The sashes, sash doors, windows,
glass lights and any lights or skylights that reflect or admit
light into the halls or other places of the BUILDING shall not be
covered or obstructed and there shall be no hanging plants or other
similar objects in the immediate vicinity of the windows. Tenant
shall not place anything against or near glass partitions or doors
or windows which may appear unsightly from outside the PREMISES.
3. Tenant shall not obstruct any sidewalks, halls, passages,
exits, entrances, elevators, escalators or stairways of the
BUILDING. The halls, passages, exits, entrances, elevators,
escalators and stairways are not for the general public, and
Landlord shall in all cases retain the right to control and prevent
access thereto of all persons whose presence in the judgment of
Landlord would be prejudicial to the safety, character, reputation
or interests of the BUILDING and its tenants; provided that nothing
herein contained shall be construed to prevent such access to
persons with whom any tenant normally deals in the ordinary course
of its business, unless such persons are engaged in illegal
activities. No tenant and no agent, servant, employee, contractor,
licensee, visitor or invitee of any tenant shall go upon the roof
of the BUILDING.
4. The directory of the BUILDING will be provided
exclusively for the display of the name and location of tenants
only, and Landlord reserves the right to exclude any other names
there from.
5. Except for incidental cleaning work performed by
employees of Tenant during business hours, all cleaning and
janitorial services for the BUILDING and the PREMISES shall be
provided exclusively through Landlord, and except with the prior
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written consent of Landlord, no person or persons other than those
approved by Landlord shall be employed by Tenant or permitted to
enter the BUILDING of the purpose of cleaning the same. Tenant
shall not cause any unnecessary labor by carelessness or
indifference to the good order and cleanliness of the PREMISES.
Landlord shall not in any way be responsible to any Tenant for any
loss of property on the PREMISES, however occurring, or for any
damage to any of Tenant's property by the janitor or any other
employee or any other person.
6. Landlord will furnish Tenant, free of charge, with two
keys to each door lock in the PREMISES. Landlord may make a
reasonable charge for any additional keys. Tenant shall not make
or have made additional keys, and Tenant shall not alter any lock
or install a new additional lock or bolt on any door of its
PREMISES. Tenant, upon the termination of its tenancy, shall
deliver to Landlord the keys of all doors which have been furnished
to Tenant, and in the event of loss of any keys so furnished, shall
pay Landlord therefor.
7. If Tenant requires telegraphic, telephonic, burglar alarm
or similar services, it shall first obtain, and comply with,
Landlord's instructions in their installation.
8. The freight elevator and loading platform shall be
available, at no charge to Tenant, between 5:00 a.m. and 10:00
p.m., Monday through Friday and 7:00 a.m. and 1:00 p.m. Saturday
for use by all tenants in the BUILDING, subject to prior
reservation and such reasonable scheduling as Landlord in its
discretion shall deem appropriate. No equipment, materials,
furniture, packages, supplies, merchandise or other property will
be received in the BUILDING through the BUILDING lobby or carried
in the passenger elevators.
9. No safes or other objects larger or heavier than what the
freight elevators of the BUILDING are limited to carry shall be
brought into or installed on the PREMISES. Tenant shall not place
a load upon any floor of the PREMISES which exceeds the load per
square foot which such floor was designed to carry and which is
allowed by law. Landlord shall have the right to prescribe the
weight, size and position of all equipment, materials, furniture or
other property brought into the BUILDING. Heavy objects shall, if
considered necessary by Tenant, stand on such platforms as
determined by Landlord to be necessary to properly distribute the
weight. Business machines and mechanical equipment belonging to
Tenant, which cause noise or vibration that may be transmitted to
the structure of the BUILDING or to any space therein to such a
degree as to be objectionable to Landlord or to any tenants in the
BUILDING, shall be placed and maintained by Tenant, at Tenant's
expense, on vibration eliminators or other devices sufficient to
eliminate noise or vibration. The persons employed to move such
equipment in or out of the BUILDING must be acceptable to Landlord.
Landlord will not be responsible for loss of, or damage to, any
such equipment or other property from any cause, and all damage
done to the BUILDING by maintaining or moving such equipment or
other property shall be repaired at the expense of Tenant.
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10. Tenant shall not use or keep in the PREMISES any
kerosene, gasoline or inflammable or combustible fluid or material
other than those limited quantities necessary for the operation or
maintenance of office equipment. Tenant shall not use or permit to
be used in the PREMISES any foul or noxious gas or substance, or
permit or allow the PREMISES to be occupied or used in a manner
offensive or objectionable to Landlord or other occupants of the
BUILDING by reason of noise, odors or vibrations, nor shall Tenant
bring into or keep in or about the PREMISES or the BUILDING any
birds or animals, except for seeing-eye dogs when accompanied by
their masters. Smoking or carrying lighted cigars or cigarettes in
the elevators and restrooms of the BUILDING, as well as any posted
area, is prohibited.
11. Tenant shall not use any method of heating or air
conditioning other than that supplied by Landlord.
12. Tenant shall not waste electricity, water or air
conditioning and agrees to cooperate fully with Landlord to assure
the most effective operation of the heating and air conditioning
systems of the BUILDING, and to comply with any governmental
energy-saving rules, laws or regulations of which Tenant has actual
notice, and shall refrain from attempting to adjust controls,
including room thermostats, installed for Tenant's use. Tenant
shall keep corridor doors closed, and shall close window coverings
at the end of each business day.
13. Tenant shall not operate any motor vehicle of any kind in
the garage portion of the BUILDING faster than fifteen (15) miles
per hour.
14. Landlord reserves the right to exclude from the BUILDING
between the hours of 6:00 P.M. and 6:00 A.M. the following day, or
such other hours as may be established from time to time by
Landlord, and on Saturdays, Sundays and legal holidays, any person
unless that person is known to the person or employee in charge of
the BUILDING and has a pass or is properly identified. Tenant
shall be responsible for all persons for whom it requests passes
and shall be liable to Landlord for any damage resulting from the
acts of such persons. Landlord shall not be liable for damages for
any error with regard to the admission to or exclusion from the
BUILDING of any person. Landlord may require any person leaving
the BUILDING with any package or other object or matter to submit a
pass, listing such package or object or matter, from the tenant
from whose premises the package or object or matter is being
removed, but the establishment and enforcement of such requirement
shall not impose any responsibility on Landlord for the protection
of any tenant against the removal of property from the premises of
such tenant. Landlord reserves the right to prevent access to the
BUILDING in case of invasion, mob, riot, public excitement or other
commotion by closing the doors or by other appropriate action. If
Tenant uses the PREMISES after regular business hours or on
nonbusiness days, Tenant shall lock any entrance doors to the
PREMISES used by Tenant immediately after using such doors.
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15. Tenant shall close and lock the doors of its PREMISES and
entirely shut off all water faucets or other water apparatus, and
electricity, gas or air outlets before Tenant and its employees
leave the PREMISES. Tenant or its insurance carrier shall be
responsible for any damage or injuries sustained by other tenants
or occupants of the BUILDING or by Landlord for noncompliance with
this rule.
16. Tenant shall not obtain for use on the PREMISES ice,
drinking water, food, beverage, towel or other similar services or
accept barbering or bootblacking, floor polishing, lighting
maintenance, cleaning or other similar services upon the PREMISES,
except at such hours and under such regulations as may be fixed by
Landlord.
17. The toilet rooms, toilets, urinals, wash bowls and other
apparatus shall not be used for any purpose other than that for
which they were constructed and no foreign substance of any kind
whatsoever shall be thrown therein. The expense of any breakage,
stoppage or damage resulting from the violation of this rule shall
be borne by the tenant who, or whose employees or invitees, shall
have caused it.
18. Without the prior written consent of Landlord, Tenant
shall not sell, or permit the sale at retail, of newspapers,
magazines, periodicals, theater tickets or any other goods or
merchandise to the general public in, on or from the PREMISES.
Tenant shall not make any room-to-room solicitation of business
from other tenants in the BUILDING. Tenant shall not use the
PREMISES for any business or activity other than that specifically
provided for in the Tenant's Lease.
19. Tenant shall not do or permit anything to be done in the
PREMISES, or bring or keep anything therein, which shall in any way
increase the rate of fire insurance on the BUILDING, or on the
property kept therein, or obstruct or interfere with the rights of
other tenants, or in any way injure or annoy them, or conflict with
the regulations of the Fire Department or the fire laws, or with
any insurance policy upon the BUILDING, or any part thereof, or
with any rules and ordinances established by the Board of Health or
other governmental authority.
20. Intentionally omitted.
21. Tenant shall not install any radio or television
antenna, loudspeaker or other device on the roof or exterior walls
of the BUILDING nor shall Tenant install or maintain in the
PREMISES any device or equipment which might interfere with radio
or television broadcasting or reception from or in the BUILDING or
elsewhere.
22. Tenant shall not mark, paint, drill into, cut,
string wires within, or in any way deface any part of the BUILDING,
without the express prior written consent of Landlord, and as
Landlord may direct. Upon removal of any wall decorations or
installations or floor coverings by Tenant, any damage to the walls
or floors resulting from such removal shall be repaired by Tenant
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at Tenant's sole cost and expense. Without limitation upon any of
the provisions of the Lease, Tenant shall refer all contractors'
representatives, installation technicians, janitorial workers and
other mechanics, artisans and laborers rendering any service in
connection with the repair, maintenance or improvement of the
PREMISES to Landlord for Landlord's supervision, approval and
control before performance of any such service. This Paragraph
shall apply to all work performed in the BUILDING, including
without limitation installation of telephones, telegraph equipment,
electrical devices and attachments and installations of any nature
affecting floors, walls, woodwork, trim, windows, ceilings,
equipment or any other portion of the BUILDING. Plans and
specifications for such work, prepared at Tenant's sole expense,
shall be submitted to Landlord and shall be subject to Landlord's
express prior written approval in each instance before the
commencement of work. Any such installations, alterations and
additions constructed by Tenant shall be done in a good and
workmanlike manner and only good grades of material shall be used
in connection therewith. The means by which telephone, telegraph
and similar wires are to be introduced to the PREMISES and the
location of telephones, call boxes and other office equipment
affixed to the PREMISES shall be subject to the express prior
written approval of Landlord. Tenant shall not lay linoleum or
similar floor coverings so that the same shall come into direct
contact with the floor of the PREMISES and, if linoleum or other
similar floor covering is to be used, an interlining of builder's
deadening felt shall be first affixed to the floor, by a paste or
other material soluble in water. The use of cement or other
similar adhesive material is expressly prohibited.
23. Tenant shall move all freight, supplies, furniture,
fixtures and other personal property into, within and out of the
BUILDING only at such times and through such entrances as may be
designated by Landlord, and such movement of such items shall be
under the supervision of Landlord. Landlord reserves the right to
inspect all such freight, supplies, furniture, fixtures and other
personal property to be brought into the BUILDING and to exclude
from the BUILDING all such objects which violate any of these rules
and regulations or the provisions of the Lease. Tenant shall not
move or install such objects in or about the BUILDING in such a
fashion as to unreasonably obstruct the activities of other
tenants, and all such moving shall be at the sole expense, risk and
responsibility of Tenant. Tenant shall not use in the delivery,
receipt or other movement of freight, supplies, furniture, fixtures
and other personal property to, from or within the BUILDING, or in
any space or other public halls of the BUILDING, any hand trucks
other than those equipped with rubber tires and side guards or such
other material-handling equipment as Landlord may approve. If, in
the course of such moving, Tenant damages the floors, floor tiles,
carpets, walls, ceilings, passenger elevators or any other portion
of the BUILDING, Landlord shall repair same at Tenant's sole cost
and expense.
24. Tenant shall not install, maintain or operate upon
the PREMISES any vending machine without the prior written consent
of Landlord.
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25. Canvassing, soliciting and distribution of handbills
or any other written material, and peddling in the BUILDING are
prohibited, and each tenant shall cooperate to prevent same.
26. Landlord reserves the right to exclude or expel from
the BUILDING any person who, in Landlord's judgment, is intoxicated
or under the influence of liquor or drugs or who is in violation of
any of the rules and regulations of the BUILDING.
27. Tenant shall store all its trash and garbage within
its PREMISES. Tenant shall not place in any trash box or
receptacle any material which cannot be disposed of in the ordinary
and customary manner of trash and garbage disposal. All garbage
and refuse disposal shall be made only through entryways and
elevators provided for such purposes and in accordance with
directions issued from time to time by Landlord.
28. Tenant shall not, without the prior written consent
of Landlord, which shall not be unreasonably withheld or delayed,
alter or repair the ceiling, remove any ceiling tiles or remove or
replace any lamps, light bulbs or ceiling fixtures on the PREMISES.
Landlord shall replace, and Tenant shall pay for the replacement of
any broken ceiling tiles, lamps, light bulbs or ceiling fixtures
which Tenant damages.
29. The PREMISES shall not be used for the storage of
merchandise held for sale to the general public, or for lodging or
for manufacturing of any kind, nor shall the PREMISES be used for
any improper, immoral or objectionable purpose. Tenant shall not
occupy the BUILDING or permit any portion of the BUILDING to be
occupied for the manufacture or direct sale of liquor, narcotics,
or tobacco in any form, or as a medical office, barber shop,
manicure shop, music or dance studio or employment agency. No
cooking or food preparation for its employees shall be done or
permitted by any tenant on the PREMISES, except that use by Tenant
of Underwriters' Laboratory-approved equipment (including microwave
ovens, hotplates and toaster) for warming food and for brewing
coffee and similar beverages shall be permitted, provided that such
equipment and use is in accordance with all applicable federal,
state, county and city laws, codes, ordinances, rules and
regulations.
30. If any governmental license or permit shall be
required for the proper and lawful conduct of any business or other
activity carried on by Tenant in the PREMISES, and if the failure
to secure such license or permit would in any manner affect
Landlord, Tenant shall duly procure and thereafter maintain such
license or permit.
31. Tenant shall not bring or keep within the BUILDING
any bicycle, motorcycle or other vehicles of any kind.
32. Without the prior written consent of Landlord,
Tenant shall not use the name or any picture of likeness of the
BUILDING in connection with or in promoting or advertising the
business of Tenant except as Tenant's address.
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33. Tenant shall comply will all safety, fire protection
and evacuation procedures and regulations established by Landlord
or any governmental agency.
34. Tenant assumes any and all responsibility for
protecting its PREMISES from theft, robbery and pilferage, which
includes keeping doors locked and other means of entry to the
PREMISES closed.
35. The requirements of Tenant will be attended to only
upon appropriate application to the office of the BUILDING by an
authorized individual. Tenant shall not, without the prior written
consent of Landlord or Landlord's BUILDING Manager, request the
BUILDING engineers to perform any tasks whatsoever for Tenant in or
near the PREMISES, the BUILDING or the Project. Employees of
Landlord shall not perform any work or do anything outside of their
regular duties unless under special instructions from Landlord, and
no employee of Landlord will admit any person (Tenant or otherwise)
to any office without specific instructions from Landlord.
36. Tenant shall not leave vehicles in the BUILDING
parking areas overnight nor park any vehicles in the BUILDING
parking areas other than automobiles, motorcycles, motor driven or
non-motor driven bicycles or four-wheeled trucks.
37. Landlord may waive any one or more of these rules
and regulations for the benefit of Tenant or any other tenant, but
no such waiver by Landlord shall be construed as a waiver of such
rules and regulations in favor of Tenant or any other tenant, nor
prevent Landlord from thereafter enforcing any such rules and
regulations against any or all of the tenants of the BUILDING.
38. These rules and regulations are in addition to, and
shall not be construed to in any way modify or amend, in whole or
in part, the terms, covenants, agreements and conditions of any
lease of premises in the BUILDING.
39. Landlord reserves the right to make such other and
reasonable rules and regulations as, in its judgment, may from time
to time be needed for safety and security, for care and cleanliness
of the BUILDING and for the preservation of good order therein.
Tenant agrees to abide by all such rules and regulations here in
above stated and any additional rules and regulations which are
adopted.
40. Tenant shall be responsible for the observance of
all of the foregoing rules by Tenants' employees, agents, clients,
customers, invitees and guests. Landlord shall not be responsible
to Tenant for the nonobservance or violation by any other tenant or
occupant of the BUILDING of any of these rules and regulations.
41. Any consent, approval, request, agreement or other
communication to be given or made under these rules and regulations
shall be in writing.
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42. The Transamerica Center Auditorium, Training Room
and Gymnasium may be used by Lessee subject to availability, and
rental charges and/or fees based upon usage will be invoiced to
Lessee separate from the monthly rent statement based on current
rates determined by Lessor in its sole discretion. The rates for
usage of said areas will be subject to change at Lessor's
discretion. Lessee's use of the Auditorium and Gymnasium will be
subject to applicable provisions of the Lease Agreement; in
addition to any other terms and conditions which Lessor may specify
or require. Lessor reserves the right to discontinue the
availability of the Transamerica Center Auditorium and Gymnasium
for any reason after the conclusion of the initial three years of
the Lease term subject to 9.07 of the Lease.
43. Tenant shall comply with Landlord's smoking policy
as modified from time to time.
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EXHIBIT C
TRANSAMERICA CENTER
CLEANING SPECIFICATIONS
I. AREAS TO BE COVERED
Executive and general office areas, corridors, elevators,
elevator lobbies, stairways and lavatories.
II. GENERAL CLEANING
A. Nightly
1. Empty and damp-wipe ash trays, clean sand urns.
2. Empty waste containers.
3. Dust mop resilient floor areas, using chemically-
treated dust-free implements.
4. Vacuum carpets and rugs.
5. Spot mop floor surfaces when necessary.
6. Dust office furniture and accessories when cleared.
7. Remove trash to designated area.
8. Spot clean around light switches.
9. Clean and polish drinking fountains and vent louvres
under refrigerated units and clean splash marks off
of adjoining walls.
10. Spot clean interior glass for fingermarks and
smudges.
11. Check doors upon completion of assignment.
12. Maintain janitors' closets and trash rooms in a neat
and orderly manner.
B. Weekly
1. Dust ledges and window sills.
2. Perform low dusting.
3. Remove fingermarks and spots from woodwork, walls and
partitions.
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4. Damp mop composition floor surfaces.
C. Monthly
1. Complete general high dusting to include pictures,
frames, sills, door jambs, ceiling vents and grilles,
and areas not reached in nightly cleaning.
2. Composition floor surface will be machine-scrubbed
and refinished.
3. Wipe down plastic and leather furniture.
4. Vacuum or brush down upholstered furniture.
III. LAVATORIES
A. Nightly
1. Thoroughly clean commodes, urinals, sinks and
faucets, removing stains, dirt and residue.
2. Refill dispensers with soap, towels, seat covers, and
toilet tissue.
3. Clean chrome fixtures.
4. Wash mirrors and dust ledges, doors, and trim.
5. Splash marks washed from walls around basins.
6. Wet mop toilet floors, using an effective
disinfectant and deodorant.
7. Wipe down doors and woodwork, removing fingermarks.
8. Empty and clean waste containers.
B. Weekly
1. Wipe down bathroom partitions.
2. Scale porcelain surfaces.
3. Perform high dusting.
C. Monthly
1. Wash down ceramic tile walls and toilet partitions.
2. Machine-scrub floor surface.
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IV. PUBLIC AREAS
A. Nightly
1. Clean entrance doors and door frames removing
fingermarks and smudges.
2. Empty and clean ash trays and sand urns.
3. Dust mop floor area.
4. Dusting - low level area below six (6) foot level.
5. Clean elevator cabs.
B. Weekly
1. Police stairways.
B. Vacuum and clean elevator door tracks and polish
metal in elevators.
C. Monthly
1. Complete general high dusting program above six (6)
foot level, including vents, grilles, pictures and
frames, and areas not reached in nightly cleaning.
2. Machine-scrub and refinish composition floor
surfaces.
3. Sweep stairways.
These specifications are subject to such reasonable
changes as shall be made by Landlord in its sole discretion from
time to time.
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EXHIBIT D
TRANSAMERICA CENTER
N/A
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EXHIBIT E
TRANSAMERICA CENTER
TENANT IMPROVEMENTS
Tenant shall be granted a Tenant Improvement Allowance of
$12.50 per rentable square foot. This allowance shall be in the
form of an account which Tenant may access by presenting paid
invoices for Tenant Improvements to the Premises for reimbursement
by Landlord or by requesting Landlord to pay for such Tenant
Improvements directly, in the manner described in this Exhibit E.
If Tenant elects to pay any contractor, subcontractor or supplier
for Tenant Improvement work, Tenant shall submit to Landlord a copy
of the paid invoice, and Landlord shall pay the full amount shown
on the invoice to Tenant within thirty (30) days after receipt
thereof. Alternatively, Tenant may elect to require Landlord to
pay the contractor, subcontractor or supplier directly, in which
case Tenant shall submit the Tenant approved invoice and
conditional lein releases directly to Landlord and Landlord shall
pay the full amount of such invoice directly to the contractor,
subcontractor or supplier within thirty (30) days after receipt of
the invoice. Any funds unused as of the end of the 5th year of the
lease may be taken as a credit against BASIC RENT at any time
during the 6th year of the term.
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EXHIBIT F
OPTION TO RENEW
1. GRANT OF OPTION. Landlord grants to Tenant two (2)
options to renew this LEASE as to all PREMISES then being leased by
Tenant. Each renewal shall be for three (3) years commencing upon
the expiration of the initial TERM of this LEASE and shall be on
the same terms and conditions as this LEASE, except as specifically
set forth in this Exhibit E. Tenant shall exercise an option to
renew only by written notice given to Landlord not less than twelve
(12) months nor more than fifteen (15) months prior to the end of
the then-existing term.
2. OPTION PERSONAL. The option granted to Tenant in this
LEASE is personal to Tenant, and successors in interest to Tenant,
and may not be exercised or assigned, voluntarily or involuntarily,
by, or to, any person or entity other than Tenant. The option
herein granted to Tenant is not assignable separate and apart from
this LEASE. In the event that at the time the option is
exercisable by Tenant, this LEASE has been assigned, or a sublease
exists as to fifty percent (50%) or more of the PREMISES, the
option shall be deemed null and void and Tenant, any assignee, or
any sublessee, shall not have the right to exercise the option.
3. EFFECT OF DEFAULT ON OPTION. Tenant shall have no right
to exercise the option, notwithstanding any provision in the grant
of option to the contrary, (i) if, at the time permitted for the
exercise of the option, or at any time prior to the commencement of
the renewal term, Tenant shall be in material default under any of
the provisions of this LEASE, or (ii) in the event that the
Landlord has given to Tenant two or more NOTICES of default under
Article 11 during the 12 calendar months prior to the time that
Tenant intends to exercise the Option.
4. RENTS DURING RENEWALS. The rental rates for the first
option period shall be at 95% of appraised fair market value but in
no event less then Tenant is paying during the last year of the
term of the lease, including escalations. The rental rate for the
second option period shall be at 90% of appraised fair market
value but in no event less than Tenant is paying during the last
year of the first renewal term, including escalations. All RENTS
payable during any renewal term shall be payable in the same manner
and under the same terms and conditions as RENTS are paid during
the initial LEASE TERM.
5. DOCUMENTATION. Landlord and Tenant shall execute and
deliver appropriate documentation to evidence any renewal of the
LEASE and the terms and conditions of the LEASE during the renewal
term.
6. TERMS. All terms used in this Exhibit F, unless otherwise
defined in this Exhibit F, shall have the same meaning as the terms
defined in the LEASE.
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7. FAIR MARKET RENTAL RATE. "FAIR MARKET RENTAL RATE" for
the purposes hereof shall be defined in accordance with the
definition found in Paragraph 22.38 of the LEASE.
If Tenant has made the appropriate election to renew its
LEASE as provided above, then, either party may notify the other
that it desires to initiate negotiations to determine the FAIR
MARKET RENTAL RATE for the renewal term commencing at the end of
the initial term. Upon the giving of such notice, Landlord and
Tenant shall promptly initiate, and cooperate with one another in
the conduct of negotiations to determine said FAIR MARKET RENTAL
RATE. If the parties have not agreed as to said FAIR MARKET RENTAL
RATE within two (2) months after such notice, Landlord and Tenant
shall attempt to agree upon a single MAI designated appraiser
within fifteen (15) days after such date. If they cannot agree
upon a single appraiser, Landlord and Tenant shall each appoint a
MAI designated real estate appraiser (and if necessary a successor
as provided below) within ten (10) years' experience in the area of
major first-class office building appraisals, leasing or
development in Downtown Los Angeles, California, and neither of
whom shall be employees or former employees of Landlord or Tenant
(although an appraiser may be an independent consultant to either
party). The two appraisers shall use their best efforts to agree
upon a FAIR MARKET RENTAL RATE but, if no such agreement is
reached, they shall, within fifteen (15) days after their
selection, select another MAI designated appraiser (the "third
appraiser") who shall meet the same standards. The three
appraisers shall meet in said City at the earliest practicable
date--and in no event later than fifteen (15) days after the
selection of the third appraiser--and shall, by majority vote,
determine the FAIR MARKET RENTAL RATE of the PREMISES as of the
commencement date of the renewal term.
In the event that either party fails to timely appoint an
appraiser, or, within an equivalent period of time from a
necessitating event appoint a successor appraiser to replace any
deceased, disabled, or unwilling appraiser, then the other party's
proposed FAIR MARKET RENTAL RATE shall control.
In the event that the first two appraisers cannot agree
upon the third appraiser, the Landlord and Tenant or the other
party, respectively, shall promptly apply to the local office of
the American Arbitration Association (or any organization successor
thereto) for the appointment of the third appraiser, or in its
absence, failure, refusal or inability to act, then either party
may apply to any court in the State of California having
jurisdiction thereof for the appointment of such third appraiser,
and the other jurisdiction to entertain the application and make
the appointment.
In the event that no two of the appraisers can agree upon
such FAIR MARKET RENTAL RATE, the third appraiser shall determine
the same; provided, however, that if the determination of such
third appraiser shall be lower than the lowest FAIR MARKET RENTAL
RATE, or higher than the highest FAIR MARKET RENTAL RATE, proposed
by the two appraisers, the FAIR MARKET RATE shall be the lowest
<PAGE>
FAIR MARKET RENTAL RATE or the highest FAIR MARKET RENTAL RATE,
respectively, of the two appraisers selected by the parties. Each
party agrees that it will use bona fide efforts to cause the FAIR
MARKET RENTAL RATE for the renewal term to be determined prior to
expiration of the initial LEASE TERM, but if the same shall fail to
be so determined, Tenant shall pay RENTS as if Landlord's proposed
FAIR MARKET RENTAL RATE were correct until such determination.
Within thirty (30) days after such determination, Tenant or
Landlord, as appropriate shall pay to the other the difference, if
any, between the RENTS payable for such renewal term, as finally
determined, and the estimated RENTS paid by Tenant pursuant to the
preceding sentence, together with interest thereon at the INTEREST
RATE from the date each installment of RENTS in question was
payable until such differences is paid.
<PAGE>
EXHIBIT G
TRANSAMERICA CENTER
ACCEPTANCE AND STATEMENT OF PREMISES, AREA AND TERM
INTENTIONALLY DELETED
<PAGE>
EXHIBIT H
PARKING MAP
A MAP OF STREETS AND PARKING LOT
<PAGE>
EXHIBIT I
EXPANSION
Tenant shall be granted the right of first offer to lease any
space on the seventh (7th) floor of 1149 South Broadway prior to
said space being offered to the market (other than Landlord or its
affiliates). Tenant may lease all the available space at Tenant's
contract rental rate, for the remainder of the term (and renewal
options, if exercised.) Said space will be taken on an "as is"
except that Landlord will be responsible for ADA or code compliance
work previously required for the "as is" improvements basis.
If Tenant desires to lease (at Fair Market Rental Rates)
additional office space in the Building, it shall give written
notice to Landlord of said interest and of the amount of RSF (+-
25%) it is willing to lease at FMRR, (notice of desire to lease
additional space must be updated in writing every six months.)
Thereafter, Landlord shall deliver said space to Tenant, and Tenant
will lease same, when and if available excepting only requirements
of Landlord and its' affiliates and contractual obligations to
other Tenants that may exist at that time. If the space that
becomes available is larger than 125% of the amount specified by
Tenant then Tenant shall not be required to lease it.
<PAGE>
EXHIBIT J
SECURITY SPECIFICATIONS
1. At all times during the term of this lease there shall be on
duty in the Building at least two attendants. A central
security console in the Building lobby shall be manned at all
such times by at least one of the attendants. Landlord's
security procedures shall provide lobby security to monitor,
other than during Business Hours, all persons entering and
leaving the Building by the main entrance or any other open
entrance. The attendants shall patrol in and around the
Building at irregular times, and shall be adequately
supervised. Landlord shall maintain and enforce a sign
in procedure for controlled elevator access for other than
normal business hours.
The foregoing notwithstanding, Tenant, at its sole cost and
expense, shall be entitled to establish its own procedures and
to install its own security equipment, both during Tenant
improvement construction and thereafter so as to maintain and
protect the internal security of the Premises, the portions of
the Parking Garage used exclusively by Tenant, stairwells and
corridors adjacent to the Premises; provided, such procedures
and use of such equipment shall not unreasonably interfere with
the use, possession and quiet enjoyment of other Tenants of
their premises.
2. This Building staff shall be reasonably educated and oriented
in handling security and emergency procedures for fire,
explosion, earthquake, power failure, bomb threat, evacuation,
robbery, burglary and similar matters.
3. Landlord shall maintain an after-hours register system.
Landlord's security procedure shall not allow persons to gain
elevator access after Business Hours to any Floor without use
of a sign in procedure.
4. When in operation, the freight elevator shall be continuously
manned during Business Hours. After hours, access to freight
elevator on floors B-8 and B-9 shall be locked, however,
janitorial personnel shall have access to the freight elevator
and it shall be available when required for Tenant; provided
that Tenant gives reasonable advance notice to the Building
personnel of such a requirement for scheduling of the elevator.
All elevator personnel shall be instructed to comply with
security procedures.
5. Landlord shall install 24-hour smoke sensors in such number as
may be required by Code for each Floor occupied by Tenant, such
monitoring equipment to be paid for by Landlord.
<PAGE>
6. Landlord shall provide guard escort services for employees upon
request to the various Transamerica owned and controlled
parking lots.
7. Landlord shall provide personnel and/or remote monitoring a
system for monitoring all exterior Building entrance and exit
doors and the loading dock for security purposes.
8. Landlord's security system shall include an adequate emergency
communications system, "GROUP ALERT" or other system capable of
notifying Tenant of an emergency. Such system shall be paid
for by Landlord.
<PAGE>
EXHIBIT K
ADDENDUM
THIS ADDENDUM, dated for references purposes as of June 1, 1994
is between TRANSAMERICA OCCIDENTAL LIFE INSURANCE COMPANY, a
California corporation, as Landlord, and MAXICARE HEALTH PLANS,
INC., a California corporation, as Tenant, and is made part of that
Lease between said parties with a reference date of June 1, 1994.
NOTWITHSTANDING anything to the contrary, the following terms
and conditions are agreed to as follows:
1. Minimum Occupancy Requirements - Should the (non-casualty)
occupancy of Transamerica Center fall below 603,326 RFS for more
than one year, then Maxicare shall have the right to terminate the
lease, without penalty, upon 12 months prior written notice. If
occupancy drop below this threshold and if Tenant does not exercise
this right, the right shall remain in force so long as occupancy
remains below the stated level but shall have no further force and
effect if and when occupancy rises above the stated level.
2. Roof Rights - Tenant shall be permitted to use an area up to
20' x 20' on the roof of the Building for communications equipment
at no charge. Said location shall be selected by Landlord and
Tenant and all costs of installation and removal shall be borne by
Tenant, and Tenant's equipment shall not interfere with any other
rooftop communications use.
3. Riser Access - Tenant shall have access to satellite t.v. or
cable t.v. lines when and if Landlord provides same in 1149 south
Broadway. Tenant may install cable/telecommunications lines to the
Premises, at Tenant's expense, in accordance with Landlord's
policies and procedures in such matters.
4. Storage Space - The 1,000 square fee of storage space that
Tenant currently occupies is offered for the term of the lease at a
rate of $10.00 per square foot per annum.
5. Signage - Landlord intends to provide ground level signage for
1149 South Broadway in two locations (subject to governmental
approvals.) Tenant's name will be placed on both (on a non-
exclusive basis) with no charge to Tenant.
<PAGE>
WHEREFORE, Landlord and Tenant have caused the Addendum to be
executed by their duly authorized officers, all effective as of the
day and year above referenced.
TENANT LANDLORD
MAXICARE HEALTH PLANS, INC. TRANSAMERICA OCCIDENTAL LIFE
INSURANCE COMPANY
By: /S/ EUGENE L. FROELICH By: /S/ LYMAN K. LOKKEN
Title: Chief Financial Officer Title: Investment Officer
By: /S/ GEORGE R. BATCHELOR By: /S/ LOUISE K. NEAL
Title: Vice President Title: Senior Vice President
Dated: October 10, 1994 Dated: October 12, 1994
<PAGE>
EXHIBIT L
TRANSAMERICA CENTER
LOS ANGELES, CALIFORNIA
LEGAL DESCRIPTION OF LAND
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND> This schedule contains summary financial
information extracted from the September 30, 1994
financial statements and is qualified in its
entirely by referenced to such financial
statements.
<MULTIPLIER> 1,000
<S> <C>
<FISCAL-YEAR-END> DEC-31-1994
<PERIOD-END> SEP-30-1994
<PERIOD-TYPE> 9-MOS
<CASH> 31,121
<SECURITIES> 45,142
<RECEIVABLES> 20,430
<ALLOWANCES> 2,587
<INVENTORY> 0
<CURRENT-ASSETS> 103,267
<PP&E> 32,566
<DEPRECIATION> 29,748
<TOTAL-ASSETS> 118,519
<CURRENT-LIABILITIES> 59,260
<BONDS> 400
0
23
<COMMON> 108
<OTHER-SE> 58,173
<TOTAL-LIABILITY-AND-EQUITY> 118,519
<PAGE>
<SALES> 322,222
<TOTAL-REVENUES> 324,376
<CGS> 283,031
<TOTAL-COSTS> 315,824
<OTHER-EXPENSES> 3,000
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 24
<INCOME-PRETAX> 5,528
<INCOME-TAX> 270
<INCOME-CONTINUING> 5,258
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 5,258
<EPS-PRIMARY> .12
<EPS-DILUTED> .12
</TABLE>
