EXHIBIT 10.43
OFFICE SPACE LEASE
BETWEEN
THE IRVINE COMPANY
AND
PACIFIC INVESTMENT MANAGEMENT COMPANY
OFFICE SPACE LEASE
THIS LEASE is made as of the ___ day of _______________, 1998, by
and between THE IRVINE COMPANY, hereafter Called "Landlord," and PACIFIC
INVESTMENT MANAGEMENT COMPANY, a Delaware general partnership, hereinafter
called "Tenant."
ARTICLE I. BASIC LEASE PROVISIONS
Each reference in this Lease to the "Basic Lease Provisions" shall mean
and refer to the following collective terms, the application of which shall be
governed by the provisions in the remaining Articles of this Lease.
1. Tenant's Trade Name: PIMCO
2. Premises: The Premises are more particularly described in Section 2.1. In
addition, Tenant shall also lease the "Must Take Space" described in
Section 2.6.
Project Description (If applicable): Corporate Plaza West
3. Use of Premises: General Office use, which may include, subject to
compliance with applicable governmental requirements, a private exercise
facility, one or more lunch or breakrooms, and one or more computer rooms.
4. Estimated Completion Date: June 1, 1999
5. Lease Term: The Term of this Lease ("Term") shall expire at midnight on
March 31, 2005.
6. Basic Rent: One Hundred Sixteen Thousand Seven Hundred Forty-Nine Dollars
($116,749.00) per month ($2.33 per rentable square foot).
Rental Adjustments:
Commencing September 1, 2000, the Basic Rent shall be One Hundred
Twenty-One Thousand Seven Hundred Sixty Dollars ($121,760.00) per month
($2.43 per rentable square foot).
Commencing September 1, 2001, the Basic Rent shall be One Hundred
Twenty-Six Thousand Seven Hundred Seventy-One Dollars ($126,771.00) per
month ($2.53 par rentable square foot).
Commencing September 1, 2002, the Basic Rent shall be One Hundred
Thirty-One Thousand Seven Hundred Eighty-One Dollars ($131,781.00) per
month ($2.63 per rentable square foot).
Commencing September 1, 2003, the Basic Rent shall be One Hundred Forty
Thousand Eight Hundred One Dollars ($140,801.00) per month ($2.81 per
rentable square foot).
Commencing September 1, 2004, the Basic Rent shell be One Hundred
Forty-Five Thousand Eight Hundred Eleven Dollars ($145,811.00) per month
($2.91 per rentable square foot).
See Section 2.6 and Exhibit X for additional rental adjustments.
7. Property Tax Base: The Property Taxes per rentable square foot actually
incurred by Landlord during the twelve month period beginning on the
Commencement Date of this Lease (or on the first day of the next following
calendar month if the Commencement Date occurs other than on the first day
of a calendar month).
Building Cost Base: The Building Coats per rentable square foot actually
incurred by Landlord during the twelve month period beginning on the
Commencement Date of this Lease (or on the first day of the next following
calendar month if the Commencement Date occurs other than on the first day
of a calendar month).
Expense Recovery Period: Every twelve month period during the Term
commencing upon the expiration of the Property Tax/Building Cost Base
period and each yearly anniversary thereof.
8. Floor Area of Premises: approximately 50,107 rentable square feet (see
section 2.6 for additional rentable area to be leased by Tenant)
9. Security Deposit: None
10. Broker(s): Xxxxxxx Realty Corporation
11 Plan Approval Date: N/A
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12. Address for Payments and Notices:
LANDLORD TENANT
The Irvine Company Pacific Investment Management
c/o PM Realty Group Company
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000 000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000 Suite 300
Attn: Property Manager Xxxxxxx Xxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
with a copy of notices to:
THE IRVINE COMPANY
X.0. Xxx 0000
Xxxxxxx Xxxxx, XX 00000-0000
Attn: Vice President, Operations - Office Properties
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ARTICLE II. PREMISES
SECTION 2.1. LEASED PREMISES. Landlord leases to Tenant and Tenant rents
from Landlord the premises consisting of the entire rentable area of the 1400
freestanding office building to be constructed by Landlord in the location
designated as the "Initial Building" in Exhibit A (the "Premises"); containing
the floor area set forth in Item 8 of the Basic Lease Provisions. The building
in which the Premises are situated (which together with the underlying real
property, is called the "Building") is a portion of the project described in
Item 2 (the "Project"). With respect to the foregoing Building and any other
building in which Tenant leases at least one full floor, Tenant shall also have
the right to use a proportionate share of the shafts, risers and conduits to the
building roof and between floors, provided such use does not interfere with
building systems and complies with all applicable laws, codes and other legal
requirements. Upon completion of the Building shell, Landlord shall cause its
architect to recalculate the rentable area of the Premises. If Landlord's
architect determines that the rentable square footage of the Premises differs
from that set forth in the Basic Lease Provisions, then Landlord shall so notify
Tenant and Tenant shall be afforded a period of fifteen (15) days to review such
determination; provided that in the event Tenant disputes the calculation within
that period, the matter shall be resolved by arbitration in accordance with
Section 14.7. Should it be finally determined that the rentable area differs
from that set forth in Item 8 of the Basic Lease Provisions, the Basic Rent (as
shown in Item 6 of the Basic Lease Provisions) shall be promptly adjusted in
proportion to the change in square footage, which adjustment shall be
retroactive (if applicable) to the Commencement Date. In determining the
rentable area of the Premises, Landlords architect shall calculate the usable
area of the Premises in accordance with the standards of ANSI/BOMA Z65.1-1996,
and the rentable areas of the Premises shall equal that usable area multiplied
by a load factor of 1.08 (which load factor shall only apply to the initial
Building leased in its entirety hereunder). Promptly following the final
determination of the rentable area, the parties shall memorialize the
adjustments, if any, by executing an amendment to this Lease prepared by
Landlord.
SECTION 2.2. ACCEPTANCE OF PREMISES. Tenant acknowledges that neither
Landlord nor any representative of Landlord has made any representation or
warranty with respect to the Premises or the Building or the suitability or
fitness of either for any purpose, except as set forth in this Lease. The taking
of possession or use of the Premises by Tenant for any purpose other than
construction shall conclusively establish that the Premises and the Building
were in satisfactory condition and in conformity with the provisions of this
Lease in all respects, except for those matters which Tenant shall have brought
to Landlord's attention on a written punch list. The list shall be limited to
items constructed by Landlord (i.e., exclusive of the Tenant improvements
constructed by Tenant), and shall be delivered to Landlord within one hundred
eighty (180) days after the term ("Term") of this Lease commences as provided in
Article III below. Nothing contained in this Section shall affect the
commencement of the Term or the obligation of Tenant to pay rent. Landlord shall
diligently complete all punch list items of which it is notified as provided
above.
SECTION 2.3. BUILDING NAME AND ADDRESS. Tenant shall not utilize any name
selected by Landlord from time to time for the Building and/or the Project as
any part of Tenant's corporate or trade name. Landlord shall have the have the
right to change the name, number or designation of the Building or Project
without liability to Tenant, upon not less than three (3) months prior written
notice to Tenant.
SECTION 2.4. RIGHT OF FIRST OFFER. Concurrently with the construction of
the Building, Landlord intends to construct a second building within the Project
which is identified as the "Adjacent Building" in Exhibit A (the "Adjacent
Building"). Provided Tenant is not then in default hereunder beyond any
applicable grace period, Landlord hereby grants Tenant the continuing right
("First Right") to lease, during the Term of this Lease, any space in excess of
5,000 rentable square feet which may become available for lease with the
Adjacent Building ("First Right Space") whether upon completion of the Adjacent
Building or thereafter, in accordance with and subject to the provisions of this
Section 2.4. It is understood, however, that the First Right Space shall also
include any space in the Adjacent Building that Landlord intends to lease with
option/must take rights to additional space that exceeds, in combination with
the initial space, 5,000 rentable square feet.
At any time after the date of this Lease, but prior to leasing the First Right
Space to any other party, Landlord shall give Tenant written notice of the basic
economic terms, including but not limited to the Basic Rent, term, operating
expense base, and tenant improvement allowance (collectively, the "Economic
Terms"), upon which Landlord is willing to lease such particular First Right
Space to Tenant or to a third party; provided that the Economic Terms shall
exclude brokerage commissions and other Landlord payments that do not directly
inure to the tenant's benefit. It is understood that should Landlord intend to
lease other space in addition to the First Right Space as part of a single
transaction, then Landlord's notice shall so provide and all such space shall
collectively be subject to the following provisions.
Within ten (10) business days after receipt of Landlord's notice, Tenant must
give Landlord written notice pursuant to which Tenant shall elect to do one of
the following: (i) lease all, but not less than all, of the space specified in
Landlord's notice (the "Designated Space") upon such Economic Terms and the same
non-economic terms as set forth in this Lease; provided, however, that if the
lease term proposed by
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Landlord for the Designated Space would extend beyond the scheduled expiration
date of this Lease, then Tenant may elect, in its written notice, to lease the
Designated Space for a term coterminous with the remaining Term hereof (but in
no event for a period of less than one (1) year), in which event the tenant
improvement allowance (if any) and all other applicable concessions set forth in
Landlord's proposed Economic Terms shall be appropriately prorated to reflect
the Shorter term; or (ii) refuse to lease the Designated Space, specifying that
such refusal is not based upon the Economic Terms, but upon Tenant's lack of
need for the Designated Space, in which event Landlord may lease the Designated
Space upon any terms it deems appropriate; or (iii) refuse to lease the
Designated Space, specifying that such refusal is based upon said Economic
Terms, in which event Tenant shall also specify revised Economic Terms upon
which Tenant shall be willing to lease the Designated Space. In the event that
Tenant does not so respond in writing to Landlord's notice within said period,
Tenant shall be deemed to have elected clause (ii) above. In the event Tenant
gives Landlord notice pursuant to clause (iii) above, Landlord may, within ten
(10) business days, elect to either (x) lease the Designated Space to Tenant
upon such revised Economic Terms and the same other non-Economic Terms as set
forth in this Lease, or (y) lease the Designated Space to any third party upon
Economic Terms which are not materially more favorable to such party than those
Economic Terms proposed by Landlord.
Should Tenant agree to lease the Designated Space from Landlord on the terms
proposed by Landlord or should Landlord otherwise elect to lease the Designated
Space to Tenant, then Landlord shall promptly prepare and deliver to Tenant an
amendment to the Lease consistent with the foregoing, and Tenant shall execute
and return same to Landlord within twenty (20) days. Tenant's failure to timely
return the amendment shall entitle Landlord to specifically enforce Tenant's
commitment to lease the Designated Space and/or to pursue any other available
legal remedy against Tenant.
In the event that Landlord shall not enter into a lease for the applicable First
Right Space with a third party within six (6) months following Landlord's notice
described above, then prior to leasing that First Right Space to any third
party, Landlord shall repeat the procedures set forth in this Section 2.4. In
the event that Landlord leases the First Right Space to a third party in
accordance with the provisions of this Section 2.4, and during the Term of this
Lease the First Right Space shall again become available for releasing, then
prior to Landlord entering into any such new lease with a third party for the
First Right Space, Landlord shall repeat the procedures specified above in this
Section 2.4.
Notwithstanding the foregoing, it is understood that Tenant's First Right shall
be subject to any extension rights granted by Landlord to any third party tenant
occupying the First Right Space, and in no event shall any such First Right
Space be deemed available for leasing with the existing tenant thereof shall
have vacated the First Right Space. Tenant's First Right shall further be
subject to any expansion right granted any third party tenant of the First Right
Space provided that such expansion right was identified in a First Right notice
given to Tenant in accordance with this Section prior to the execution of that
third party lease. Tenant's rights under this Section 2.4 shall belong solely to
Pacific Investment Management Company and may not be assigned or transferred by
it except in connection with an authorized assignment of this Lease; provided
that should any such assignee exercise such First Right, it is agreed that
Pacific Investment Management Company shall remain liable for all monetary
obligations in connection therewith as if it were the party exercising such
First Right.
SECTION 2.5. OPTION TO LEASE ADDITIONAL SPACE. Provided that Tenant is not
then in default hereunder beyond any applicable grace period and has not, in one
or more transactions pursuant to Section 2.4 above, leased an amount of space in
the Adjacent Building that equals the entire rentable area of a full floor of
the Adjacent Building, then subject to the conditions set forth below, Tenant
shall have the option to lease additional space within the Project consisting of
the leases of (i) 25,000 rentable square feet or (ii) the entire rentable area
of a building within the Project as described below (the "Expansion Area").
Unless required to do so sooner by the provisions below, Tenant shall exercise
that option by giving written notice to Landlord not later than May 31, 2000
(the "Option Notice"). Within thirty (30) days following receipt of the Option
Notice, Landlord shall determine the intended location of the Expansion Area.
Such location may, at Landlord's election, either be within the Adjacent
Building, if sufficient space is then available, or within another building
consisting of between 20,000 and 70,000 rentable square feet to be subsequently
developed by Landlord within the Project (the "Additional Building"). The
Additional Building shall, if applicable, be constructed utilizing exterior and
interior materials and finishes similar to those of the Building.
Should Landlord determine that the Expansion Area is to be located in the
Additional Building, then Landlord shall diligently pursue all necessary
entitlements and penalties for the Additional Building. However, Landlord shall
only be obligated to obtain a building permit and commence construction of the
Additional Building if (i) Landlord can obtain financing on commercially
reasonable terms for the Additional Building, (ii) Tenant's then-current
Standard & Poor's credit rating, if any, is not lower then "BBB-", (iii)
Landlord is able to achieve not less than the Minimum Return (as defined below)
on the Additional Building, and (iv) Landlord is able to secure the necessary
entitlements and permits. For purposes of this Section, the "Minimum Return" on
the Additional Building shall mean a projected return, as reasonably calculated
by Landlord, equal to the then-current ten (10) years treasury bond yield plus
550 basis points on the total cost of the Additional Building. The total cost of
the Additional Building shall include all hard
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and soft costs incurred by Landlord in connection with the development and
construction of the Additional Building, the improvements, therein, and all
attendant infrastructure and common area improvements, together with an imputed
land cost equal to Eighty Dollars ($80.00) per gross building square foot of the
Additional Building. Should Landlord pro-forma a yield, on the Additional
Building that is less than the Minimum Return (which determination shall be made
by Landlord within thirty (30) days following delivery of the Option Notice),
Landlord shall have no obligation to construct same unless Tenant agrees in
writing to lease all of the rentable area of the Additional Building at a rental
rate sufficient to provide the Minimum Return. In no event, however, shall the
obligation to construct the Additional Building be binding on any successor to
the interest of Landlord in the Building following a foreclosure of that
interest or the transfer of title by deed in lieu thereof.
Should Landlord obtain the necessary entitlements for the Additional Building
prior to Tenant's delivery of the Option Notice, then Landlord may so notify
Tenant and require that Tenant either deliver the Option Notice within twenty
(20) days thereafter or waive its option rights under this Section. Should
Tenant fail to deliver the Option Notice to Tenant within that period, then its
right to do so thereafter shall permanently lapse and this Section shall become
null and void. Landlord agrees, however, that if Tenant does timely deliver the
Option Notice as a result of the foregoing demand by Landlord, then Tenant shall
not be required to accept delivery of the Expansion Area prior to June 1, 2000.
Subject to the Minimum Return requirement set forth above, the rental rate and
other economic terms for the Expansion Area shall be reasonably determined by
Landlord in accordance with the criteria described in Section 3.3 below for the
calculation of the "Prevailing Rate"; provided that then-current tenant
improvement allowances provided by Landlord within the Project shall be utilized
in such determination. Landlord's calculation of the Prevailing Rate shall be
subject to Tenant's reasonable review and approval; in the event the parties are
unable to agree thereon within thirty (30) days, then either party may submit
same to arbitration in accordance with Section 14.7. The term of Tenant's lease
of the Expansion Area shall be coterminous with the remaining Term of this Lease
but in no event shall be less than sixty (60) months. Should fewer than sixty
(60) months remain in the Term hereof as of the commencement date of the
Expansion Area, then Tenant shall have the right, by written notice to Landlord
given within thirty (30) days following that commencement date, to extend the
Term of this Lease as to the remainder of the Premises to be coterminous with
the Expansion Area. The rental rate for the remainder of the Premises during
that extension period shall be at the rate per rentable square foot that is
payable from time to time for the Expansion Area during such period. The
non-economic terms for Tenant's lease of the Expansion Area shall be as set
forth in this Lease.
The commencement data of Tenant's lease of the Expansion Area shall be
established in accordance with Section 3.1 of this Lease. Except as otherwise
provided above, it is understood that Landlord may deliver the Expansion Area to
Tenant at any time following Tenant's delivery of the Option Notice. In the
event the Expansion Area is to be located in the Additional Building, then
subject to the conditions above, Landlord shall deliver the Additional Space,
ready for the commencement of the tenant improvement work by Tenant, not later
than eighteen (18) months following receipt by Landlord of all necessary
entitlements and permits for the commencement of construction, as such outside
data shall be extended for the period of delays caused by Tenant and by other
matters beyond the reasonable control of Landlord. Landlord shall, upon request
by Tenant from time to time, keep Tenant advised as to the status of the
development and construction of the Additional Building.
Promptly following the determination of the location of the Expansion Area and
all of the economic terms of Tenant's lease thereof, Landlord shall prepare an
appropriate amendment to this Lease memorializing same and Landlord shall
execute and return that amendment to Landlord within ten (10) days. Tenant's
rights under this Section are personal to Pacific Investment Management Company,
and may not be assigned or transferred except in connection with an assignment
of this Lease by a Tenant Affiliate meeting the credit standards set forth
above.
SECTION 2.6. MUST TAKE SPACE. Tenant shall lease, for a term equal to the
then unexpired portion of the Term of this Lease, the entire rentable area of
the ground floor of the Adjacent Building (the "Must Take Space"), whereupon the
Must Take Space shall be deemed a part of the Premises. The rentable area of the
Must Take Space is approximately 23,920 rentable square feet, which measurement
shall be subject to recalculation in accordance with the procedures and criteria
set forth in Section 2.1. Tenant's lease of the Must Take Space shall be subject
to all of the terms of the Lease (including the provisions of the Work Letter
attached as Exhibit X), except as follows: (i) the commencement of the Lease
Term of the Must Take Space (the "Commencement Date for the Must Take Space")
shall be determined pursuant to the criteria set forth in Section 3.1, provided
that the Shell Completion Date shall be deemed to refer to the substantial
completion of the Landlord's Work for the Adjacent Building; (ii) Tenant shall
have the right to terminate only its obligation to lease the Must Take Space
(but not the entire Lease) pursuant to Subsection 3.2(a) above if the Shell
Completion Date for the Adjacent Building does not timely occur as provided in
that Subsection based on an Estimated Completion Date for the Adjacent Building
of August 1, 1999; (iii) the Basic Rent for the Must Take Space shall be at the
same rate per rentable square foot as is payable from time to time for the
initial Premises in accordance with the Basic Rent schedule set forth in Item 6
of the Basic Lease Provisions; (iv) the Property Tax and Building Cost
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Bases for the Must Take Space shall equal the Property Taxes and Building Costs,
respectively, actually incurred by Landlord from the Commencement Date for the
Must Take Space through June 30, 2000, as reasonably extrapolated by Landlord to
a full year of operation and taxation, and Tenant's obligation to fund Operating
Expenses for the Must Take Space shall commence concurrently with its obligation
to make such payments for the initial Premises; (v) Tenant shall be afforded
non-exclusive exterior signage rights on the Adjacent Building as provided in
Subsection 52(b) of the Lease (it being understood that the condition set forth
in Subsection 5.2(b) that the signage be available shall be deemed satisfied);
(vi) reserved parking stalls shall be allotted with respect to the Must Take
Space as provided below in Section 6.4; (vii) Tenant be afforded the right to
install one (1) satellite dish or antenna on the roof of the Adjacent Building
in accordance with the provisions of Section 22.6 below, including the monthly
license fee set forth therein; (viii) Tenant shall have no right to install any
additional emergency generator for the Must Take Space except as may otherwise
hereafter be agreed in writing by Landlord; and (ix) all electric, gas, and, at
Landlord's option, water services to the Must Take Space may be separately
metered and billed to Tenant in accordance with the provisions of Paragraph 8 of
Exhibit B hereto. For purposes of the Lease, all references to the "Building"
shall be deemed to refer to the Initial Building and/or the Adjacent Building,
either individually or collectively as the context may require. In addition to
the foregoing Landlord agrees that should Tenant enter into any sublease for a
portion of the Must Take Space only (i.e., exclusive of the initial Premises)
which would commence within the six (6) month period beginning on the
Commencement Date for the Must Take Space, then with respect to any such
sublease (A) Tenant's obligation to share any excess rent with Landlord pursuant
to Subsection 9.1(c)(2) below shall only be applicable if the sublease term
exceeds two (2) years and (B) Landlord's rights to disapprove the subtenant
pursuant to Subsections 9.1(c)(3), (4) or (5) or to recapture the subleased
premises pursuant to Subsection 9.1(d) shall only be applicable if the sublease
term exceeds three (3) years. Not later than June 1, 1999, Tenant shall deliver
to Landlord the sum of Fifty-Five Thousand Seven Hundred Thirty-Four Dollars
($55,734.00) which shall be applied against the Basic Rent first due and payable
for the Must Take Space.
ARTICLE III. TERM
SECTION 3.1. GENERAL. The Term shall be for the period shown in Item 5 of
the Basic Lease Provisions. The Term shall commence ("Commencement Date") on the
earlier of (a) seventy-five (75) days following the date ("Shell Completion
Date") of substantial completion of the Landlord's Work described in Article I
of Exhibit X hereto, provided that such period shall be extended on a
day-for-day basis for the period of any "Landlord Delays" described in Exhibit
X, or (b) the date Tenant commences its business activities within the Premises.
Promptly following request by Landlord, the parties shall memorialize on a form
provided by Landlord the actual Commencement Date and the expiration date
("Expiration Date") of this Lease.
SECTION 3.2. RIGHTS TO TERMINATE.
(a) If the Shell Completion Date fails to occur by the "Outside
Date" as defined below, then Tenant shall have the right to terminate this Lease
by giving written notice thereof to Landlord after the Outside Date but prior to
the Shell Completion Date. If, from time to time prior to the Outside Date,
Landlord determines that the Shell Completion Date will not occur by the Outside
Date, Landlord shall deliver to Tenant a written notice setting forth Landlord's
opinion as to the revised outside date by which the Shell Completion Date will
occur. Within five (5) business days following delivery of that notice, Tenant
may elect by written notice to Landlord to terminate this Lease; otherwise, the
Outside Date shall be deemed extended to the revised date set forth in
Landlord's notice. For purposes hereof, the "Outside Date" shall mean the date
that is three (3) months following the Estimated Completion Date set forth in
Item 4 of the Basic Lease Provisions; provided that the Outside Date shall be
extended on a day-for-day basis for the period of any delays caused by Tenant
and for the period of any delays (up to a maximum of six (6) months) resulting
from matters of force majeure as set forth in Section 20.9.
(b) Landlord shall have the right to terminate this Lease upon
written notice to Tenant should either (i) Landlord determine that it will be
unable to commence construction of the Building by January 1, 1999, or (ii) an
event of casualty or other matter of force majeure occurs at any time following
the commencement of construction of the Building that would, in Landlord's
reasonable estimation, delay construction by a period in excess of six (6)
months.
SECTION 3.3. RIGHTS TO EXTEND. Provided that Tenant is not then in default
under any provision of this Lease beyond any applicable grace period, Tenant may
extend the Term of this Lease for up to two (2) consecutive periods of sixty
(60) months each. Tenant shall exercise each such right to extend the Term by
and only by delivering to Landlord, not less than nine (9) months or more than
eighteen (18) months prior to the then-current scheduled expiration date of the
Term, Tenant's written notice of its irrevocable election to extend (the
"Exercise Notice"). Tenant may, if so specified in the Exercise Notice, elect to
relinquish, as of the commencement of the applicable extension period, any space
then leased by Tenant hereunder that is not a portion of the Initial Building to
be leased in its
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entirety by Tenant, which relinquished space shall be identified in the Exercise
Notice; provided, however, that in no event shall Tenant be permitted to
relinquish space on any floor within the Project unless all of the space on that
floor is so relinquished.
The Basic Rent payable under the Lease during the extension of the Term shall be
at the prevailing rental rate and other economic terms for office space being
leased by Landlord in the Project and at 23, 24 and 00 Xxxxxxxxx Xxxxx with a
term commencing at or about the commencement of the applicable extension period,
as determined by Landlord based on a reasonable extrapolation of its then
current leasing rates (the "Prevailing Rate"). In determining the Prevailing
Rate, recent new and renewal leases with non-equity tenants of the Project and
in the buildings owned by Landlord and located at 23, 24 and 26 Corporate Plaza
in Newport Beach shall be considered. The Prevailing Rate shall reflect the
rental rate and terms payable in those third party transactions, taking into
account pertinent economic concessions then generally being granted by Landlord
such as "free rent," Operating Expense base years, parking charge limitations,
and the like. It is understood, however, that no consideration shall be given to
brokerage commissions, lease "takeover" payments, moving allowances, or tenant
improvement allowances (other than retrofit allowances granted to renewal
tenants). The rental rates payable in any third party transactions executed more
than five (5) months prior to the commencement of the applicable extension
period shall be reasonably extrapolated, if applicable, to reflect anticipated
changes in the Prevailing Rate based on current rental trends. Landlord shall
make available to Tenant a summary of the basic economic terms of the pertinent
leases used by Landlord to calculate the Prevailing Rate, provided that Landlord
may elect to withhold the identities of the third party tenants.
Following Tenant's delivery of the Exercise Notice, but not later than five (5)
months prior to the then-current expiration date of the Term, Landlord shall
notify Tenant in writing ("Landlord's Notice") of Landlord's calculation of the
Prevailing Rate for the extension period based on the foregoing criteria. Should
Tenant dispute Landlord's calculation, then Tenant may, by written notice to
Landlord within sixty (60) days following Landlord's Notice, submit the
reasonableness of Landlord's calculation of the Prevailing Rate to arbitration
in accordance with Section 14.7(b) of the Lease (the "Arbitration Election").
Should Tenant fail timely to make the Arbitration Election, then Landlord's
determination of the Prevailing Rate shall be conclusive.
Within twenty (20) days after the determination of the Prevailing Rate, Landlord
shall prepare a reasonably appropriate amendment to this Lease setting forth all
pertinent terms for the extension period and Tenant shall execute and return
same to Landlord within ten (10) days. Should the Prevailing Rate not be
established by the commencement of the extension period, then Tenant shall
continue paying rent at the rate in effect during the month preceding such
commencement, and a lump sum adjustment shall be made promptly upon the
determination of such new rental.
If Tenant does not deliver the Exercise Notice by the date set forth above, then
Tenant's right to extend the Term shell be extinguished and the Lease shall
automatically terminate as of the then-current expiration date of the Term,
without any extension and without any liability to Landlord. Any attempt to
assign or transfer any right or interest created by this paragraph separate and
apart from an authorized assignment of this Lease shall be void from its
inception.
ARTICLE IV. RENT AND OPERATING EXPENSES
SECTION 4.1. BASIC RENT. From and after the Commencement Date, Tenant
shall pay to Landlord without deduction or offset a Basic Rent for the Premises
on the total amount shown (including subsequent adjustments, if any) in Item 6
of the Basic Lease Provisions. The rent shall be due and payable in advance
commencing on the Commencement Date (as prorated for any partial month) and
continuing thereafter on the first day of each successive calendar month of the
Term. No demand, notice or invoice shall be required. An installment of rent in
the amount of one (1) full month's Basic Rent at the initial rate specified in
Item 6 of the Basic Lease Provisions shall be delivered to Landlord on or before
April 1, 1999, and shall be applied against the Basic Rent first due hereunder.
SECTION 4.2. OPERATING EXPENSE INCREASE.
(a) Commencing twelve (12) months following the Commencement Date,
Tenant shall compensate Landlord, as additional rent, for Tenant's proportionate
shares of "Building Costs" and "Property Taxes," as those terms are defined
below, incurred by Landlord in the operation of the Building and Project.
Property Taxes and Building Costs are mutually exclusive and may be billed
separately or in combination as determined by Landlord. Tenant's proportionate
share of Property Taxes shall equal the product of the rentable floor area of
the Premises multiplied by the difference of (i) Property Taxes per rentable
square foot less (ii) the Property Tax Base set forth in Item 7 of the Basic
Lease Provisions. Tenant's proportionate share of Building Costs shall equal the
product of the rentable floor area of the Premises multiplied by the difference
of (i) Building Costs per rentable square foot less (ii) the Building Cost Base
set forth in Item 7 of the Basic Lease Provisions. Tenant acknowledges
Landlord's rights to
7
make changes or additions to the Project from time to time pursuant to Section
6.5 below, in which event the total rentable square footage within the Project
may be adjusted. For convenience of reference, Property Taxes and Building Costs
may sometimes be collectively referred to as "Operating Expenses"
(b) Commencing prior to the start of the first full "Expense
Recovery Period" of the Lease (as defined in Item 7 of the Basic Lease
Provisions), and prior to the start of each full or partial Expense Recovery
Period thereafter, Landlord shall give Tenant a written estimate of the amount
of Tenant's proportionate shares of Building Costs and Property Taxes for the
Expense Recovery Period or portion thereof. Commencing twelve (12) months
following the Commencement Date, Tenant shall pay the estimated amounts to
Landlord in equal monthly installments, in advance, with Basic Rent. If Landlord
has not furnished its written estimate for any Expense Recovery Period by the
time set forth above, Tenant shall continue to pay cost reimbursements at the
rates established for the prior Expense Recovery Period, if any; provided that
when the new estimate is delivered to Tenant, Tenant shall, at the next monthly
payment date (but upon not less than thirty (30) days written notice to Tenant),
pay any accrued cost reimbursements based upon the new estimate, which accrual
shall not exceed six (6) months. Landlord may from time to time change the
Expense Recovery Period to reflect a calendar year or a new fiscal year of
Landlord, as applicable, in which event Tenant's share of Operating Expenses
shall be equitably prorated for any partial year.
(c) Within one hundred twenty (120) days after the end of each
Expense Recovery Period, Landlord shall furnish to Tenant a statement showing in
reasonable detail the actual or prorated Property Taxes and Building Costs
incurred by Landlord during the period, and the parties shall within thirty (30)
days thereafter make any payment or allowance necessary to adjust Tenant's
estimated payments, if any, to Tenant's actual proportionate shares as shown by
the annual statement. In connection therewith, any overpayment by Tenant of
either category of Operating Expenses shall be credited against any underpayment
of the other category. If Tenant has not made estimated payments during the
Expense Recovery Period, any amount owing by Tenant pursuant to subsection (a)
above shall be paid to Landlord within thirty (30) days after receipt of
Landlord's statement. If actual Property Taxes or Building Costs allocable to
Tenant during any Expense Recovery Period are less than the Property Tax Base or
the Building Cost Base, respectively, Landlord shall not be required to pay the
differential to Tenant. Should Tenant fail to object in writing to Landlord's
determination of actual Operating Expenses within one hundred eighty (180) days
following delivery of Landlord's expense statement, Landlord's determination of
actual Operating Expenses for the applicable Expense Recovery Period shall be
conclusive and binding on the parties.
(d) Even though the Lease has terminated and the Tenant has vacated
the Premises, when the final determination is made of Tenant's share of Property
Taxes and Building Costs for the Expense Recovery Period in which the Lease
terminates, Tenant shall within thirty (30) days following notice pay the entire
increase due over the estimated expenses paid, subject to Tenant's audit right
pursuant to Subsection (h) below. Conversely, any overpayment made in the event
expenses decrease shall be rebated by Landlord to Tenant within thirty (30) days
following final determination of Operating Expenses.
(e) If, at any time during any Expense Recovery Period, any one or
more of the Operating Expenses are increased to a rate(s) or amount(s) in excess
of the rate(s) or amount(s) used in calculating the estimated expenses for the
year, then Tenant's estimated share of Property Taxes or Building Costs, as
applicable, shall be increased for the month in which the increase becomes
effective and for all succeeding months by an amount equal to Tenant's
proportionate share of the increase. Landlord shall give Tenant written notice
of the amount or estimated amount of the increase, the month in which the
increase will become effective, Tenant's monthly share thereof and the months
for which the payments are due. Tenant shall pay the increase to Landlord as a
part of Tenant's monthly payments of estimated expenses as provided in paragraph
(b) above, commencing with the month in which effective, but not less than
thirty (30) days after Landlord's notice to Tenant of such increase.
(f) Except for those items specifically excluded below, the term
"Building Costs" shall include all expenses of operation and maintenance of the
Building and the Project, together with all appurtenant Common Areas (as defined
in Section 6.2), and shall include the following charges by way of illustration
but not limitation: water and sewer charges; insurance premiums or reasonable
premium equivalents should Landlord elect to self-insure any risk that Landlord
is authorized to insure hereunder; license, permit, and inspection fees; heat;
light; power; janitorial services; repairs; air conditioning; supplies;
materials; equipment; tools; tenant services that are available for all tenants
of the Project; programs instituted to comply with transportation management
requirements; amortization of capital investments which produce a reduction in
operating charges or energy conservation; amortization of capital investments
necessary to bring the Building into compliance with applicable laws and
building codes enacted subsequent to the completion of construction of the
Building; labor; reasonably allocated wages and salaries, fringe benefits, and
payroll taxes for administrative and other personnel directly applicable to the
Building and/or Project, including both Landlord's personnel and outside
personnel; any expense incurred pursuant to Sections 6.1, 6.2, 6.4, 7.2, and
10.2 and Exhibits B and C below; and a reasonable overhead/management fee not to
exceed that paid by landlords of comparable first class office
8
projects in the vicinity. It is understood that Building Costs shall include
competitive charges for direct services provided by any subsidiary or division
of Landlord. However, in addition to the items excluded in subsection (g) below,
with respect only to the initial Premises leased hereunder (but not for any
additional space leased by Tenant within another building), Building Costs shall
exclude all charges for electricity, gas and water service to the Building (as
opposed to the exterior Common Areas), which utility charges for the initial
Premises shall be paid in full directly by Tenant as provided in Exhibit B. The
term "Property Taxes" as used herein shall include the following: (i) all real
estate taxes or personal property taxes, as such property taxes may be
reassessed from time to time; and (ii) other taxes, charges and assessments
which are levied with respect to this Lease or to the Building and/or the
Project, and any improvements, fixtures and equipment and other property of
Landlord located in the Building and/or the Project and used for the benefit of
the Project, except that general net income and franchise taxes imposed against
Landlord shall be excluded; and (iii) any tax, surcharge or assessment which
shall be levied in addition to or in lieu of real estate or personal property
taxes, other than taxes covered by Article VIII; and (iv) costs and expenses
incurred in contesting the amount or validity of any Property Tax by appropriate
proceedings. A copy of Landlord's unaudited statement of expenses shall be made
available to Tenant upon request. The Building Costs shall be extrapolated by
Landlord to reflect the greater of ninety-five percent (95%) or actual occupancy
of the rentable area of the Building.
(g) The following shall be excluded from the Building Costs and
Property Taxes for the purposes of this Section 4.2:
(1) Costs of repairs, replacements or other work occasioned by
fire, windstorm or other casualty, or the exercise by governmental authorities
of the right of eminent domain, to the extent Landlord is entitled to receive
insurance or condemnation proceeds therefor (or would have been entitled to such
insurance proceeds if Landlord had carried the insurance required under this
Lease, exclusive of commercially reasonable deductibles).
(2) Leasing commissions, attorneys fees, costs, disbursements
and other expenses incurred by Landlord or its agents in connection with
negotiations for leases with tenants, other occupants or prospective tenants or
other occupants of the Building, and similar costs incurred in connection with
disputes with and/or enforcement of any leases with tenants, other occupants, or
prospective tenants or other occupants of the Building.
(3) "Tenant allowances", "tenant concessions", work letters,
and other costs or expenses (including permit, license and inspection fees)
incurred in completing, fixturing, furnishing, renovating or otherwise
improving, decorating or redecorating space for tenants or other occupants of
the Building, or vacant, leasable space in the Building, including space
planning/interior design fees for same.
(4) Depreciation, other "non-cash" expense items or
amortization, except as otherwise expressly permitted herein.
(5) Costs of items that are properly capitalized in accordance
with generally accepted accounting principles, consistently applied, except as
otherwise expressly permitted herein.
(6) Costs in connection with services (including electricity),
items or other benefits of a type which are not standard for the Project and
which are not available to Tenant without specific charge therefor, but which
are provided to another tenant or occupant of the Project whether, or not such
other tenant or occupant is specifically charged therefor by Landlord.
(7) Services, items and benefits for which Tenant or any other
tenant or occupant of the Project specifically reimburses Landlord or for which
Tenant or any other tenant or occupant of the Project pays third persons.
(8) Costs or expenses (including fines, penalties and legal
fees) incurred due to the violation by Landlord, its employees, agents and/or
contractors, of any lease in the Project, and/or of any applicable laws, rules,
regulations and codes of any federal, state, county, municipal or other
governmental authority having jurisdiction over the Project that would not have
incurred but for such violation by Landlord, its employees, agents and/or
contractors, it being intended that each party shall be responsible for the
costs resulting from its own violation of such leases and laws, rules,
regulations and codes as same shall pertain to the Project; provided, however,
that costs incurred to comply with laws, regulations or codes that become
effective after the date of this Lease shall be includable in Operating
Expenses.
(9) Penalties for late payment of taxes, equipment leases, etc.
(10) Costs directly resulting from the negligence or willful
misconduct of Landlord, its employees, agents and/or contractors.
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(11) Payments in respect of overhead and/or profit to any
subsidiary or affiliate of Landlord for services (other than the management fee)
to the Project or for goods, supplies or other materials, to the extent that the
costs of such services, goods, supplies and/or materials exceed the costs that
would have been paid had the services, goods, supplies or materials been
provided by parties unaffiliated with Landlord.
(12) Payments of principal, finance charges or interest on
debt or amortization on any mortgage, deed of trust or other debt, and rental
payments (or increases in same) under any ground or underlying lease or leases
(except to the extent the same may be made to pay or reimburse, or may be
measured by, real estate taxes).
(13) Except for the reasonable management fee, costs of
Landlord's general overhead and general administrative expenses (individual,
partnership or corporate, as the case may be).
(14) Compensation paid to clerks, attendants or other persons
in commercial concessions serving the general public (such as a snack bar,
restaurant or newsstand, but exclusive of the parking facilities for the
Project), if any, operated by Landlord or any subsidiary or affiliate of
Landlord.
(15) Rentals and other related expenses, if any, incurred in
leasing air conditioning systems, elevators or other equipment ordinarily
considered to be of a capital nature, except equipment which is used in
providing janitorial, maintenance or emergency services and which is not affixed
to the Project.
(16) Advertising and promotional expenses, including costs of
tenant identity signage (other than the cost of maintaining building
directories).
(17) Costs or expenses for sculpture, paintings or other works
of art, including costs incurred with respect to the purchase, ownership,
leasing, showing, promotion, repair and/or maintenance of same.
(18) Costs for which Landlord is compensated through or
reimbursed by insurance or other means of recovery.
(19) Costs of correcting or repairing defects in the Project
and/or any associated garage facilities of the Project and/or equipment, or the
replacement of defective equipment, to the extent such costs are covered by
warranties of manufacturers, suppliers or contractors, or are otherwise borne by
parties other than Landlord.
(20) Contributions to operating expense reserves.
(21) Contributions to charitable or political organizations.
(22) Costs incurred in removing the property of former tenants
and/or other occupants of the Building.
(23) Costs or fees relating to the defense of Landlord's title
to or interest in the Building.
(24) Compensation in the form of wages, salaries and such
other compensation and benefits, as well as any adjustments thereto, for all
employees and personnel of Landlord above the level of the on-premises Project
manager (if applicable); provided that Operating Expenses may include an
equitable allocation of the wages, salaries and other compensation and benefits
of Landlord's employees and personnel (up to the level of senior portfolio
manager) that work on the Project and on other projects, including, without
limitation, those being periodically developed, managed and/or operated by
Landlord, in addition to the Project.
(25) Taxes payable by Landlord other than the Property Taxes
payable with respect to Landlord's ownership of the Building and/or the Project.
(26) Amortization charges on account of any capital
expenditure incurred by Landlord to affect an annual net reduction in the
Operating Expenses of the Building to the extent that such charge (inclusive of
financing costs, all amortized over the reasonable life at the capital
investment item) exceeds the anticipated savings in Operating Expenses
attributable to such expenditures in any given year.
(27) Any other expense which, under generally accepted
accounting principles, consistently applied, would not be considered to be a
normal maintenance or operating expense of the Building.
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(28) Costs for any new category of Operating Expenses which
was not included in either the Building Cost Base or Property Tax Base unless
either (i) the new category is commercially reasonable for first-class office
buildings comparable to the Project or (ii) the Building Cost Base or Property
Tax Base, as applicable, is grossed up to include the first year's cost of such
new expense category.
(29) Costs arising from disputes, claims or potential disputes
to the extent not typically included in Operating Expenses by landlords of
comparable office projects.
(30) Costs of effecting compliance with the requirements of
any applicable law in existence at the time of construction of the Building.
(31) Costs of premiums for earthquake insurance unless either
(i) the Building Cost Base already includes earthquake insurance coverage or
(ii) the Building Cost Base is thereupon grossed up to include the first year's
cost of such insurance.
In no event shall Landlord collect Operating Expenses from all tenants of the
Project during any Expense Recovery Period that total in excess of one hundred
percent (100%) of the actual Operating Expenses incurred by Landlord during that
Expense Recovery Period.
(h) Provided Tenant is not then in default hereunder beyond any
applicable notice and cure period, Tenant shall have the right to cause a
certified public accountant to audit Operating Expenses by inspecting Landlord's
ledger accounts not more than once during any Expense Recovery Period. Tenant
shall give notice to Landlord of Tenant's intent to audit within one hundred
eighty (180) days after Tenant's receipt of Landlord's expense statement which
sets forth Landlord's actual Operating Expenses; provided, however, that Tenant
shall have until the date that is thirty (30) months following the Commencement
Date to initiate an audit of Landlord's Base Year expenses. Any audit by Tenant
shall be conducted at a mutually agreeable time during normal business hours at
the office of Landlord or its management agent where such accounts are
maintained. If Tenant's audit determines that actual Operating Expenses have
been overstated by more than four percent (4%), then subject to Landlord's right
to review and/or contest the audit results, Landlord shall reimburse Tenant for
the reasonable out-of-pocket costs of such audit. Tenant's rent shall be
appropriately adjusted to reflect any overstatement in Operating Expenses. In
addition, if any component of Operating Expenses is determined to be either
inappropriate or excessive during an Expense Recovery Period, and if the
Building Cost Base or Property Tax Base also included such component, then the
appropriate Base shall concurrently be adjusted if and to the extent
appropriate. In the event of a dispute between Landlord and Tenant regarding the
results of such audit, either party may elect to submit the matter for binding
arbitration pursuant to Section 14.7(b) below. All of the information obtained
by Tenant and/or its auditor in connection with such audit, as well as any
compromise, settlement or adjustment reached between Landlord and Tenant as a
result thereof, shall be held in strict confidence and, except as may be
required pursuant to litigation, shall not be disclosed to any third party,
directly or indirectly, by Tenant or its auditor or any of their officers,
agents or employees. Landlord may require Tenant's auditor to execute a separate
confidentiality agreement affirming the foregoing as a condition precedent to
any audit.
SECTION 4.3. SECURITY DEPOSIT. Concurrently with Tenant's delivery of this
Lease, Tenant shall deposit with Landlord the sum, if any, stated in Item 9 of
the Basic Lease Provisions (the "Security Deposit"), to be held by Landlord as
security for the full and faithful performance of Tenant's obligations under
this Lease to pay any rent as and when due, including without limitation such
additional rent as may be owing under any provision hereof, and to maintain the
Premises as required by Sections 7.1 and 15.3. Upon any breach of those
obligations by Tenant, Landlord may apply all or part of the Security Deposit as
full or partial compensation. If any portion of the Security Deposit is so
applied, Tenant shall within five (5) days after written demand by Landlord
deposit cash with Landlord in an amount sufficient to restore the Security
Deposit to its original amount. Landlord shall not be required to keep this
Security Deposit separate from its general funds, and Tenant shall not be
entitled to interest on the Security Deposit. If Tenant fully performs its
obligations under this Lease, the Security Deposit or any balance thereof shall
be returned to Tenant or, at Landlord's option, to the last assignee of Tenant's
interest in this Lease.
ARTICLE V. USES
SECTION 5.1. USE. Tenant shall use the Premises only for the purposes
stated in Item 3 of the Basic Lease Provisions. The parties agree that any
contrary use shall be deemed to cause material and irreparable harm to Landlord
and shall entitle Landlord to injunctive relief in addition to any other
available remedy. Tenant shall not do or permit anything to be done in or about
the Premises which will in any way interfere with the rights or quiet enjoyment
of other occupants of the Building or the Project, or use or allow the Premises
to be used for any unlawful purpose, nor shall Tenant permit any nuisance or
commit any waste in the Premises or the Project. Tenant shall not do or permit
to be done anything which will invalidate or increase the cost of any insurance
policy(ies) covering the Building, the Project
11
and/or their contents, and shall comply with all applicable insurance
underwriters rules and the requirements of the Pacific Fire Rating Bureau or any
other organization performing a similar function. Tenant shall comply at its
expense with all present and future laws, ordinances and requirements of all
governmental authorities that pertain to Tenant's specific improvement or use of
the Premises, including without limitation all federal and state occupational
health and safety and handicap access requirements, whether or not Tenant's
compliance will necessitate expenditures or interfere with its use and enjoyment
of the Premises; conversely, should any such expenditure be required of any
general office user of the Premises, then Landlord shall be responsible for
making the necessary alterations of the Premises, subject to inclusion of the
cost thereof in Operating Expenses. Tenant shall not generate, handle, store or
dispose of hazardous or toxic materials (as such materials may be identified in
any federal, state or local law or regulation) in the Premises or Project
without the prior written consent of Landlord; provided that the foregoing shall
not be deemed to proscribe the use by Tenant of customary office supplies in
normal quantities so long as such use comports with all applicable laws. Tenant
agrees that it shall promptly complete and deliver to Landlord any disclosure
form regarding hazardous or toxic materials that may be required by any
governmental agency. Tenant shall also, from time to time upon request by
Landlord, execute such affidavits concerning Tenant's best knowledge and belief
regarding the presence of hazardous or toxic materials in the Premises. Landlord
shall have the right at any time to perform an assessment of the environmental
condition of the Premises and of Tenant's compliance with this Section. As part
of any such assessment, Landlord shall have the right, upon reasonable prior
notice to Tenant, to enter and inspect the Premises and to perform tests,
provided those tests are performed in a manner that minimizes disruption to
Tenant. Tenant will cooperate with Landlord in connection with any assessment
by, among other things, promptly responding to inquiries and providing relevant
documentation and records. The reasonable cost of the assessment/testing shall
be reimbursed by Tenant to Landlord if such assessment/testing determines that
Tenant failed to comply with the requirements of this Section. In all events
Tenant shall indemnify Landlord in the manner elsewhere provided in this Lease
from any release of hazardous or toxic materials caused by Tenant, its agents,
employees, contractors, subtenants or licensees. Should any hazardous or toxic
material be discovered in the Premises that was not introduced by Tenant, its
employees, agents, contractors or subtenants, and should Landlord be legally
required to remediate same, then Landlord shall be responsible for such
remediation and shall indemnify Tenant against any liability in connection
therewith. The foregoing covenants shall survive the expiration or earlier
termination of this Lease.
SECTION 5.2. SIGNS.
(a) Because the initial Premises constitutes the entire rentable
area of the Building, Tenant shall be allotted, at Tenant's expense, all of the
lobby directory strips for that Building, except for those strips needed by
Landlord for building information, property management and other administrative
purposes. Should Tenant lease additional space in any other building, Tenant
shall, at its expense, be entitled to one (1) lobby directory strip for every
2,000 rentable square feet leased.
(b) Tenant shall, at its expense, be allowed to install in the
initial Building signage consisting of Tenant's name and logo on the interior
lobby walls, provided that the specifications and manner of installation of the
signage shall be subject to Landlord's reasonable approval. Tenant shall be
solely responsible for the cost of maintaining that signage, and shall cause the
same to be promptly removed at Tenant's expense at such time as Tenant ceases to
lease the entire building. Tenant shall repair any damage to the walls or any
other portion of the Building resulting from such removal. Should Tenant lease
additional space in any other building within the Project, Tenant shall have the
right to install, at Tenant's expense, building standard signage adjacent to the
entry door of such additional space, which signage shall be ordered through
Landlord; provided that should Tenant lease over fifteen thousand (15,000)
rentable square feet hereunder in that other building, then Tenant shall also be
afforded exterior primary or secondary signage on that building if such signage
is then available. Except as provided in Subsection (c) below, Tenant shall not
place or allow to be placed any other sign, decoration or advertising matter of
any kind that is visible from the exterior of the Premises. Any violating sign
or decoration may be immediately removed by Landlord at Tenant's expense without
notice and without the removal constituting a breach of this Lease or entitling
Tenant to claim damages.
(c) Tenant shall have the right to install exterior signage on two
(2) sides of the initial Building to be leased in its entirety to Tenant, which
signage shall consist only of the name "PIMCO" or a derivation thereof. The
specifications, location and design of such signage shall be subject to the
prior approval of both Landlord and the City of Newport Beach, and shall be
subject to Landlord's Sign Criteria for the Project. Installation, insurance.
and maintenance of such signage shall be at Tenant's sole cost and expense.
Tenant's signage right shall belong solely to Pacific Management Company, and
may not be transferred or assigned to other than a Tenant Affiliate without
Landlord's prior written consent, which may be withheld by Landlord in
Landlord's reasonable discretion. At such time as Tenant ceases to occupy
(exclusive of any subtenant) at least one full floor of the initial Premises,
then Tenant shall promptly remove the exterior signage at Tenant's expense. Such
removal shall be at Tenant's sole expense, and Tenant shall bear the cost of any
resulting repairs to the Building that are reasonably necessary due to the
removal.
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ARTICLE VI. LANDLORD SERVICES
SECTION 6.1. UTILITIES AND SERVICES. Landlord shall furnish to the
Premises the utilities and services described in Exhibit B, subject to the
conditions and payment obligations and standards set forth in this Lease.
Landlord shall not be liable for any failure to furnish any services or
utilities when the failure is the result of any accident or other cause beyond
Landlord's reasonable control, nor shall Landlord be liable for damages
resulting from power surges or any breakdown in telecommunications facilities or
services. Landlord's temporary inability to furnish any services or utilities
shall not entitle Tenant to any damages, relieve Tenant of the obligation to pay
rent or constitute a constructive or other eviction of Tenant, except that
Landlord shall diligently attempt to restore the service or utility promptly;
provided that if the Premises are rendered untenantable for more than five (5)
consecutive business days due to a utility service interruption, then rent
hereunder shall xxxxx from and after the sixth (6th) business day until the
service is restored. Tenant shall comply with all reasonable rules and
regulations which Landlord may reasonably establish for the provision of
services and utilities, and shall cooperate with all reasonable conservation
practices established by Landlord. Landlord shall at all reasonable times have
free access to all electrical and mechanical installations of Landlord.
SECTION 6.2. OPERATION AND MAINTENANCE OF COMMON AREAS. During the
Term, Landlord shall operate in a first-class manner all Common Areas within the
Building and the Project. The term "Common Areas" shall mean all areas within
the Building and other buildings in the Project which are not held for exclusive
use by persons entitled to occupy space, and all other appurtenant areas and
improvements provided by Landlord for the common use of Landlord and tenants and
their respective employees and invitees, including without limitation parking
areas and structures, driveways, sidewalks, landscaped and planted areas,
hallways and interior stairwells not located within the premises of any tenant,
common entrances and lobbies, elevators, and restrooms not located within the
premises of any tenant.
SECTION 6.3. USE OF COMMON AREAS. The occupancy by Tenant of the
Premises shall include the use of the Common Areas in common with Landlord and
with all others for whose convenience and use the Common Areas may be provided
by Landlord, subject, however, to compliance with all reasonable and
non-discriminatory rules and regulations as are prescribed from time to time by
Landlord. Landlord shall at all times during the Term have exclusive control of
the Common Areas, and may restrain any use or occupancy, except as authorized by
Landlord's rules and regulations. Tenant shall keep the Common Areas clear of
any obstruction or unauthorized use related to Tenant's operations. Landlord may
temporarily close any portion of the Common Areas for repairs, remodeling and/or
alterations, to prevent a public dedication or the accrual of prescriptive
rights, or for any other reasonable purpose so long as Tenant's use of the
Premises is not materially adversely affected.
SECTION 6.4. PARKING. Landlord shall make available for use by
Tenant up to four (4) parking stalls for every 1,000 usable square feet of space
leased hereunder by Tenant (the "Allotted Stalls") at no monthly stall charge
during the initial Lease Term. With respect to the initial Premises and the Must
Take Space, up to ten percent (10%) of that allotted parking shall be reserved
in a location designated by Landlord and reasonably acceptable to Tenant; the
remainder of the Allotted Stalls shall be unreserved. It is understood, however,
that Landlord may require that all of those reserved stalls, including those
allotted with respect to the Must Take Space, be situated in the Parking Area
for the Initial Building until such time (if ever) that Landlord grants reserved
parking to a third party tenant of the Adjacent Building. The Allotted Stalls
shall be provided in accordance with Exhibit C to this Lease. In addition to the
foregoing, Tenant shall be afforded the license to utilize, on a month-to-month
basis, up to One Hundred (100) parking stalls located on the rooftop level of
the parking structure for the building located at 000 Xxxxxxx Xxxxxx Xxxxx in
Newport Beach (the "Additional Stalls"), subject to the monthly availability of
such stalls as determined by Landlord. The terms of that license shall be set
forth in a reasonable parking license agreement prepared by Landlord and
executed by the parties. Tenant shall pay Landlord's asking rate from time to
time for the Additional Stalls; provided that the rate shall be Sixty-Five
Dollars ($65.00) per stall per month during the initial twelve (12) months of
the license. If requested by Landlord, Tenant shall cooperate with Landlord's
parking control methods to provide assurance that the rooftop parking
requirement is being observed, which methods may include attaching stickers to
employees' cars.
SECTION 6.5. CHANGES AND ADDITIONS BY LANDLORD. Landlord reserves
the right to make alterations or additions the Building or the Project, or to
the attendant fixtures, equipment and Common Areas, provided that Tenant's
proportionate share of Operating Expense shall not thereby be increased on a
percentage basis. No change shall entitle Tenant to any abatement of rent or
other claim against Landlord, provided that the change does not deprive Tenant
of reasonable access to or use of the Premises.
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ARTICLE VII. MAINTAINING THE PREMISES
SECTION 7.1. TENANT'S MAINTENANCE AND REPAIR. Subject to Landlord
providing the services required pursuant to Exhibit B and Section 7.2, Tenant at
its sole expense shall make all repairs necessary to keep the Premises in the
condition as existed on the Commencement Date (or on any later date that the
improvements may have been installed), excepting ordinary wear and tear. All
repairs shall be at least equal in quality to the original work, shall be made
only by a licensed, bonded contractor approved in writing in advance by Landlord
and shall be made only at the time or times approved by Landlord, which approval
shall not be unreasonably withheld, conditioned or delayed. Any contractor
utilized by Tenant shall be subject to Landlord's standard requirements for
contractors, as modified from time to time. Landlord may impose reasonable
restrictions and requirements with respect to repairs, as provided in Section
7.3, and the provisions of Section 7.4 shall apply to all repairs.
Alternatively, should Tenant fail to make a repair within thirty (30) days
following notice from Landlord, Landlord may elect to make any such repair on
behalf of Tenant and at Tenant's expense, and Tenant shall promptly reimburse
Landlord as additional rent for all costs incurred upon submission of an
invoice. Each party hereto agrees to cooperate with the other party as
appropriate in assigning or enforcing applicable third party warranties for
maintenance or repair.
SECTION 7.2. LANDLORD'S MAINTENANCE AND REPAIR.
(a) Subject to Section 10.3 and Article XI, Landlord shall provide
service, maintenance and repair with respect to any air conditioning,
ventilating or heating equipment which serves the Premises (exclusive of any
supplemental HVAC equipment installed by or at the request of Tenant) and shall
maintain in good repair the roof, roof membrane, foundations, footings, the
exterior surfaces of the exterior walls of the Building, and the structural,
electrical and mechanical systems. Landlord shall have the right to employ or
designate any reputable person or firm, including any employee or agent of
Landlord or any of Landlord's affiliates or divisions, to perform any service,
repair or maintenance function. Landlord need not make any other improvements or
repairs except as specifically required under this Lease, and nothing contained
in this Section shall limit Landlord's right to reimbursement from Tenant for
maintenance, repair costs and replacement costs as provided elsewhere in this
Lease. Tenant understands that it shall not make repairs at Landlord's expense
or by rental offset.
(b) Except as provided in Sections 6.1 above and 11.1 and 12.1
below, there shall be no abatement of rent and no liability of Landlord by
reason of any injury to or interference with Tenant's business arising from the
making of any repairs, alterations or improvements to any portion of the
Building, including repairs to the Premises, nor shall any related activity by
Landlord constitute an actual or constructive eviction; provided, however, that
in making repairs, alterations or improvements, Landlord shall interfere as
little as reasonably practicable with the conduct of Tenant's business in the
Premises.
SECTION 7.3. ALTERATIONS. Except for cosmetic alterations to the interior
of the Premises which cost less than Fifty Thousand Dollars ($50,000.00) and
which do not affect the structural, electrical, mechanical or fire/life safety
systems of the Building, are not visible from the exterior of the Premises, and
do not otherwise require a permit (the "Authorized Alterations"), Tenant shall
make no alterations, additions or improvements to the Premises without the prior
written consent of Landlord, which consent shall not be unreasonably withheld or
delayed. Landlord may impose, as a condition to its consent, any requirements
that Landlord in its discretion may deem reasonable or desirable, including but
not limited to reasonable requirements as to the manner, time, and contractor
for performance of the work. Without limiting the generality of the foregoing,
Tenant shall use Landlord's designated mechanical and electrical contractors for
all work affecting the mechanical or electrical systems of the Building,
provided that the fees of such designated contractors are generally competitive
with other contractors of like quality and experience. Tenant shall obtain all
required permits for the work and shall perform the work in compliance with all
applicable laws, regulations and ordinances, and Landlord shall be entitled to a
supervision fee in the amount of five percent (5%) of the cost of the work.
Under no circumstances shall Tenant make any improvement which incorporates
asbestos-containing construction materials into the Premises. Any request for
Landlord's consent shall be made in writing and shall contain architectural
plans describing the work in detail reasonably satisfactory to Landlord. Unless
Landlord otherwise agrees in writing, all alterations, additions or improvements
affixed to the Premises (excluding moveable trade fixtures and furniture) shall
become the property of Landlord and shall be surrendered with the Premises at
the end of the Term, except that Landlord may, by notice to Tenant given at the
time of Landlord's consent to the alteration or improvement, require Tenant to
remove by the Expiration Date, or sooner termination date of this Lease, all or
any alterations, decorations, fixtures, additions, improvements and the like
installed either by Tenant or by Landlord at Tenant's request and to repair any
damage to the Premises arising from that removal. Landlord may require Tenant to
remove an improvement provided as part of the initial build-out pursuant to
Exhibit X, if any, if and only if the improvement is a non-building standard
item and Tenant is notified of the requirement prior to the build-out. Except as
otherwise provided in this Lease or in any Exhibit to this Lease, should
Landlord make any alteration or improvement to the Premises at the request of
Tenant, Landlord shall be entitled to prompt reimbursement from Tenant for all
costs incurred.
SECTION 7.4. MECHANIC'S LIENS. Tenant shall keep the Premises free from
any liens arising out of any work performed, materials furnished, or obligations
incurred by or for Tenant. Upon request by Landlord, Tenant shall promptly cause
any such lien to be released by posting a bond in accordance with California
Civil Code Section 3143 or any successor statute. In the event that Tenant shall
not, within thirty (30) days following the imposition of any lien, cause the
lien to be released of record by payment or posting of a proper bond, Landlord
shall have, in addition to all other available remedies, the right to cause the
lien to be released by any means it deems proper, including payment of or
defense against the claim giving rise to the lien. All expenses so incurred by
Landlord, including Landlord's
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attorneys' fees, shall be reimbursed by Tenant promptly following Landlord's
demand, together with interest from the date of payment by Landlord at the rate
of ten percent (10%) per annum until paid. Tenant shall give Landlord no less
than ten (10) days' prior notice in writing before commencing construction of
any kind on the Premises so that Landlord may post and maintain notices of
nonresponsibility on the Premises.
SECTION 7.5. ENTRY AND INSPECTION.
(a) Subject to the provisions of Subsection (b) below, Landlord
shall at all reasonable times, upon reasonable prior written or oral notice to
Tenant (except in emergencies or to supply normal janitorial services), have the
right to enter the Premises to inspect them, to supply services in accordance
with this Lease, to protect the interests of Landlord in the Premises, to make
repairs and renovations as reasonably deemed necessary by Landlord, and to
submit the Premises to prospective or actual purchasers or encumbrance holders
(or, during the last one hundred and eighty (180) days of the Term, as extended,
or when an uncured Tenant default exists, to prospective tenants), all without
being deemed to have caused an eviction of Tenant and without abatement of rent
except as provided elsewhere in this Lease. Landlord shall at all times have and
retain a key which unlocks all of the doors in the Premises, excluding Tenant's
vaults and safes, and Landlord shall have the right to use any and all means
which Landlord may deem proper to open the doors in an emergency in order to
obtain entry to the Premises, and any entry to the Premises obtained by Landlord
shall not under any circumstances be deemed to be a forcible or unlawful entry
into, or a detainer of, the Premises, or any eviction of Tenant from the
Premises.
(b) Tenant may in good faith, and for legitimate security purposes,
designate certain limited portions of the Premises as "Secured Areas", subject
to Landlord's reasonable approval. Tenant may restrict Landlord's access to the
Secured Areas except in the event of an emergency or unless Landlord provides
Tenant with 24-hour advance written or oral notice of a desired entry. Tenant
shall have the right to accompany Landlord during any such entry. Landlord shall
not have any obligation to provide janitorial services to the Secured Areas
unless Tenant provides reasonable access thereto for the janitorial personnel.
SECTION 7.6. SPACE PLANNING AND SUBSTITUTION. Should Tenant at any time
lease space within the Project that does not consist of all of the rentable area
of the applicable building floor (the "Partial Floor Space"), then Landlord
shall have the right, upon providing not less than forty-five (45) days written
notice, to move Tenant from that Partial Floor Space to other space of
comparable size in the Project. The new space shall be provided with
improvements of comparable quality to those within the Partial Floor Space.
Landlord shall pay the reasonable out-of-pocket costs to relocate and reconnect
Tenant's personal property and equipment within the new space; provided that
Landlord may elect to cause such work to be done by its contractors. Landlord
shall also reimburse Tenant for such other reasonable out-of-pocket costs that
Tenant may incur in connection with the relocation, including without limitation
necessary stationery revisions, provided that a reasonable estimate thereof is
given to Landlord within twenty (20) days following Landlord's notice. In no
event, however, shall Landlord be obligated to incur or fund total relocation
costs, exclusive of tenant improvement expenditures, in an amount in excess of
two (2) months of Basic Rent in the amount then payable hereunder for the
Partial Floor Space. Within ten (10) days following request by Landlord, Tenant
shall execute an amendment to this Lease prepared by Landlord to memorialize the
relocation.
ARTICLE VIII. TAXES AND ASSESSMENTS ON TENANT'S PROPERTY
Tenant shall be liable for and shall pay before delinquency, all taxes and
assessments levied against all personal property of Tenant located in the
Premises. When possible Tenant shall cause its personal property to be assessed
and billed separately from the real property of which the Premises form a part.
If any taxes on Tenant's personal property are levied against Landlord or
Landlord's property and if Landlord pays the same, or if the assessed value of
Landlord's property is increased by the inclusion of a value placed upon the
personal property of Tenant and if Landlord pays the taxes based upon the
increased assessment, Tenant shall pay to Landlord the taxes so levied against
Landlord or the proportion of the taxes resulting from the increase in the
assessment.
ARTICLE IX. ASSIGNMENT AND SUBLETTING
SECTION 9.1. RIGHTS OF PARTIES.
(a) Notwithstanding any provision of this Lease to the contrary,
Tenant will not, either voluntarily or by operation of law, assign, sublet
encumber, or otherwise transfer all or any part of Tenant's interest in this
lease, or permit the Premises to be occupied by anyone other than Tenant, or its
employees, agents or Tenant Affiliates, without Landlord's prior written
consent, which consent shall not unreasonably be withheld in accordance with the
provisions of Section 9.1.(c). No assignment (whether voluntary, involuntary or
by operation of law) and no subletting shall be valid or effective without
Landlord's prior written consent and, at Landlord's election, shall constitute a
material default of this Lease. Landlord shall not be deemed to have given its
consent to any assignment or subletting by any other course of action, including
its acceptance of any name for listing in the Building directory. To the extent
not prohibited by provisions of the Bankruptcy Code, 11 U.S.C. Section 101 et
seq. (the "Bankruptcy Code"), including Section 365(f)(1), Tenant on behalf of
itself and its creditors, administrators and assigns waives
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the applicability of Section 365(e) of the Bankruptcy Code unless the proposed
assignee of the Trustee for the estate of the bankrupt meets Landlord's standard
for consent as set forth in Section 9.1(c) of this Lease. If this Lease is
assigned to any person or entity pursuant to the provisions of the Bankruptcy
Code, any and all monies or other considerations to be delivered in connection
with the assignment shall be delivered to Landlord, shall be and remain the
exclusive property of Landlord and shall not constitute property of Tenant or of
the estate of Tenant within the meaning of the Bankruptcy Code. Any person or
entity to which this Lease is assigned pursuant to the provisions of the
Bankruptcy Code shall be deemed to have assumed all of the obligations arising
under this Lease on and after the date of the assignment, and shall upon demand
execute and deliver to Landlord an instrument confirming that assumption.
(b) If Tenant is a corporation, or is an unincorporated association
or partnership, the transfer of any stock or interest in the corporation,
association or partnership which results in a change in the voting control of
Tenant shall be deemed an assignment within the meaning and provisions of this
Article; provided that the foregoing shall not apply to any stock transfer
through a national stock exchange or by a public offering or private placement
of additional securities if Tenant is a publicly-held corporation. In addition,
any change in the status of the entity, such as, but not limited to, the
withdrawal of a general partner, shall be deemed an assignment within the
meaning of this Article.
(c) If Tenant desires to transfer an interest in this Lease, it
shall first notify Landlord of its desire and shall submit in writing to
Landlord:(i) the name and address of the proposed transferee;(ii) the nature of
any proposed subtenant's or assignee's business to be carried on in the
Premises; and (iii) the terms and provisions of any proposed sublease or
assignment. Except as provided in Subsection (d) of this Section, Landlord shall
not unreasonably withhold its consent where such consent is required, provided:
(1)the use of the Premises will be consistent with the provisions of this Lease
and with Landlord's commitment to other tenants of the Building and Project;
(2)fifty percent (50%) of any excess rent received by the Tenant from the
assignment or subletting, whether during or after the Term of this Lease, shall
be paid to Landlord when received after first deducting the reasonable
out-of-pocket costs incurred by Tenant in effecting the transfer, (3) any
proposed subtenant or assignee demonstrates that it is financially responsible
by submission to Landlord of all reasonable information as Landlord may request
concerning the proposed subtenant or assignee, including, but not limited to, a
balance sheet of the proposed subtenant or assignee as of a date within ninety
(90) days of the request for Landlord's consent and statements of income or
profit and loss of the proposed subtenant or assignee for the last fiscal year
preceding the request for Landlord's consent, it being understood that a
transferee with a net worth (exclusive of good will and other intangible assets)
of at least Ten Million Dollars ($10,000,000) shall be deemed financially
responsible for purposes of this Article; (4) any proposed subtenant or assignee
demonstrates to Landlord's reasonable satisfaction a record of successful
experience in business; and (5) the proposed assignee or subtenant is neither an
existing tenant of the Building or Project nor a prospective tenant with whom
Landlord is then actively negotiating (except that this limitation shall not be
enforced by Landlord if it does not then have sufficient available space in the
Project to accommodate the proposed transferee). If Landlord consents to the
proposed transfer, Tenant may within one hundred eighty (180) days after the
date of the consent effect the transfer upon the terms described in the
information furnished to Landlord; provided that any material change in the
terms shall be subject to Landlord's consent as set forth in this Section.
Landlord shall approve or disapprove any requested transfer within ten (10)
business days following receipt of Tenant's written request and the information
set forth above. Tenant shall pay to Landlord a transfer fee of Five Hundred
Dollars ($500.00) if and when any transfer requested by Tenant is approved.
(d) Notwithstanding the provisions of Subsection (c) above, in lieu
of consenting to a proposed assignment of this Lease or a subletting of all of
the space then being leased by Tenant on any floor within the Project, Landlord
may, within ten (10) business days following receipt of Tenant's written request
and the information set forth above, elect to terminate this Lease as to the
portion of the Premises proposed to be subleased or assigned with a
proportionate abatement in the rent payable under this Lease, effective on the
date that the proposed sublease or assignment would have become effective.
Landlord may thereafter, at its option, assign or re-let any space so recaptured
to any third party, including without limitation the proposed transferee of
Tenant. Should Landlord exercise its rights under this Subsection (d), then
Tenant may, by written notice to Landlord given within five (5) business days
following such exercise by Landlord, elect to rescind its request to assign or
sublet the Premises, as applicable, in which event Landlord's recapture election
shall be null and void and Tenant shall not effect its proposed transfer.
(e) Notwithstanding the foregoing, Tenant may, without Landlord's
consent but with concurrent written notice to Landlord, assign this Lease or
sublet the Premises to any entity that (i) results from a merger or
consolidation with Tenant, (ii) succeeds to the business and assets of Tenant,
or (iii) controls, is controlled by, or is under common control with, Tenant
(respectively "Tenant Affiliate"). Any transfer to a Tenant Affiliate shall not
be subject to the recapture, transfer fee, or rent sharing requirements, set
forth above in this Article.
SECTION 9.2. EFFECT OF TRANSFER. No subletting or assignment, even with
the consent of Landlord or to a Tenant Affiliate, shall relieve Tenant, or any
successor-in-interest to Tenant hereunder, of its obligation to pay rent and to
perform all its other obligations under this Lease. Moreover, Tenant shall
indemnify and hold Landlord harmless, as provided in Section 10.3, for any
negligence or willful misconduct by an assignee or subtenant. Each assignee,
other than Landlord, shall be deemed to assume all obligations of Tenant under
this Lease and shall be liable jointly and severally with Tenant for the payment
of all rent, and for the due performance of all of Tenant's obligations, under
this Lease. Such joint and several liability shall not be discharged or impaired
by any subsequent modification or extension of this Lease. No transfer shall be
binding on Landlord unless any document memorializing the transfer is delivered
to Landlord and, except for a transfer to a Tenant Affiliate, both the
assignee/subtenant and
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Tenant deliver to Landlord an executed consent to transfer instrument prepared
by Landlord and consistent with the requirements of this Article. The acceptance
by Landlord of any payment due under this Lease from any other person shall not
be deemed to be a waiver by Landlord of any provision of this Lease or to be a
consent to any transfer. Consent by Landlord to one or more transfers shall not
operate as a waiver or estoppel to the future enforcement by Landlord of its
rights under this Lease. In addition to the foregoing, no change in the status
of Tenant or any party jointly and severally liable with Tenant as aforesaid
(e.g., by conversion to a limited liability company or partnership) shall serve
to abrogate the liability of any person or entity for the obligations of Tenant,
including any obligations that may be incurred by Tenant after the status change
by exercise of a preexisting right in this Lease.
SECTION 9.3. SUBLEASE REQUIREMENTS. The following terms and conditions
shall apply to any subletting by Tenant of all or any part of the Premises and
shall be included in each sublease:
(a) Tenant hereby irrevocably assigns to Landlord all of Tenant's
interest in all rentals and income arising from any sublease of the Premises,
and Landlord may collect such rent and income and apply same toward Tenant's
obligations under this Lease; provided, however, that until a default occurs
(i.e., after notice and failure to timely cure) in the performance of Tenant's
obligations under this Lease, Tenant shall have the right to receive and collect
the sublease rentals. Landlord shall not, by reason of this assignment or the
collection of sublease rentals, be deemed liable to the subtenant for the
performance of any of Tenant's obligations under the sublease. Tenant hereby
irrevocably authorizes and directs any subtenant, upon receipt of a written
notice from Landlord stating that an uncured default exists in the performance
of Tenant's obligations under this Lease, to pay to Landlord all sums then and
thereafter due under the sublease, subject to Section 9.1(c). Tenant agrees that
the subtenant may rely on that notice without any duty of further inquiry and
notwithstanding any notice or claim by Tenant to the contrary. Tenant shall have
no right or claim against the subtenant or Landlord for any rentals so paid to
Landlord. In the event Landlord collects amounts from subtenants that exceed the
total amount then due from Tenant hereunder, Landlord shall promptly remit the
excess to Tenant.
(b) In the event of the termination of this Lease, Landlord may, at
its sole option, take over Tenant's entire interest in any sublease and, upon
notice from Landlord, the subtenant shall attorn to Landlord. In no event,
however, shall Landlord be liable for any previous act or omission by Tenant
under the sublease or for the return of any advance rental payments or deposits
under the sublease that have not been actually delivered to Landlord, nor shall
Landlord be bound by any sublease modification executed without Landlord's
consent or for any advance rental payment by the subtenant in excess of one
month's rent. The general provisions of this Lease, including without limitation
those pertaining to insurance and indemnification, shall be deemed incorporated
by reference into the sublease despite the termination of this Lease.
(c) Tenant agrees that Landlord may, at its sole option, authorize a
subtenant of the Premises to cure a default by Tenant under this Lease. Should
Landlord accept such cure, the subtenant shall have a right of reimbursement and
offset from and against Tenant under the applicable sublease.
ARTICLE X. INSURANCE AND INDEMNITY
SECTION 10.1. TENANT'S INSURANCE. Tenant, at its sole cost and expense,
shall provide and maintain in effect the insurance described in Exhibit D.
Evidence of that insurance must be delivered to Landlord prior to the
Commencement Date.
SECTION 10.2. LANDLORD'S INSURANCE. Landlord shall provide the following
types of insurance, with or without deductible and in amounts and coverages as
may be reasonably determined by Landlord: "all risk" property insurance, subject
to standard exclusions, covering the Building or Project, and such other risks
as Landlord or its mortgagees may from time to time deem appropriate, and
commercial general liability coverage. Landlord shall not be required to carry
insurance of any kind on Tenant's leasehold improvements, trade fixtures,
furnishings, equipment, interior plate glass, signs and all other items of
personal property, and shall not be obligated to repair or replace that property
should damage occur. All proceeds of insurance maintained by Landlord upon the
Building and Project shall be the property of Landlord, whether or not Landlord
is obligated to or elects to make any repairs.
SECTION 10.3. INDEMNITY.
(a) To the fullest extent permitted by law, but subject to
Section 10.4, Tenant shall defend, indemnify and hold harmless Landlord, its
agents, lenders, and any and all [ILLEGIBLE] of Landlord, from and against any
and all claims, liabilities, costs or expenses arising either before or after
the Commencement Date from any default in the performance of any obligation on
Tenant's part to be performed under this Lease, or from any willful misconduct
or negligence of Tenant or its agents, employees, subtenants, or contractors.
Landlord may, at its option, require Tenant to assume Landlord's defense in any
action covered by this Section through counsel reasonably satisfactory to
Landlord.
(b) To the fullest extent permitted by law, but subject to Section
10.4, Landlord shall indemnify and hold harmless Tenant from and against any and
all claims, liabilities, costs or expenses arising either before or after the
Commencement Date from any default in the performance of Landlord's obligations
hereunder or from the negligence or willful misconduct of Landlord or its
agents, employees or contractors.
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SECTION 10.4. WAIVER OF SUBROGATION. Landlord and Tenant each hereby
waives all rights of recovery against the other on account of loss and damage
occasioned to the property of such waiving party to the extent that the waiving
party is entitled to proceeds for such loss and damage under any "all risk"
property insurance policies carried or otherwise required to be carried by this
Lease. By this waiver it is the intent of the parties that neither Landlord nor
Tenant shall be liable to any insurance company (by way of subrogation or
otherwise) insuring the other party for any loss or damage insured against under
any "all-risk" property insurance policies, even though such loss or damage
might be occasioned by the negligence of such party, its agents, employees,
contractors or invitees. The foregoing waiver by Tenant shall also inure to the
benefit of Landlord's management agent for the Building.
ARTICLE XI. DAMAGE OR DESTRUCTION
SECTION 11.1. RESTORATION.
(a) If a Building of which any portion of the Premises is a part is
damaged as the result of an event of casualty, Landlord shall repair that damage
as soon as reasonably possible unless:(i)Landlord reasonably determines that the
cost of repair would exceed ten percent (10%) of the full replacement cost of
the Building ("Replacement Cost") and the damage is not caused by a risk covered
by Landlord's fire and extended coverage insurance (or by a normal extended
coverage policy should Landlord fail to carry that insurance); or (ii) Landlord
reasonably determines that the cost of repair would exceed twenty-five percent
(25%) of the Replacement Cost; or (iii) Landlord reasonably determines that the
cost of repair would exceed ten percent (10%) of the Replacement Cost and the
damage occurs during the final twelve (12) months of the Term (as the Term may
be extended pursuant to Section 3.3). Should Landlord elect not to repair the
damage for one of the preceding reasons, Landlord shall so notify Tenant in the
"Casualty Notice" (as defined below), and this Lease shall terminate as to the
portion of the Premises situated in the affected Building as of the date of
delivery of that notice.
(b) As soon as reasonably practicable following the casualty event
but not later than thirty (30) days thereafter, Landlord shall notify Tenant in
writing ("Casualty Notice") of Landlord's election, if applicable, to terminate
as set forth in Subsection (a) above. Absent such termination election, the
Casualty Notice shall set forth the anticipated period for repairing the
casualty damage. If the anticipated repair period exceeds seven (7) months and
if the damage is so extensive as to reasonably prevent Tenant's substantial use
and enjoyment of the portion of the Premises situated in the affected Building,
then Tenant may elect to terminate this Lease as to such portion of the Premises
by written notice to Landlord within ten (10) days following delivery of the
Casualty Notice.
(c) From and after the sixth (6th) business day following the
casualty event, the rental to be paid under this Lease shall be abated in the
same proportion that the floor area of the Premises that is rendered unusable by
the damage from time to time bears to the total floor area of the Premises;
provided that if any damage to a portion of the Premises makes it infeasible for
Tenant to conduct business within the remainder of the Premises in the same
Building and Tenant ceases to conduct business within that Building, then all of
Tenant's rent for such Building shall xxxxx from and after that sixth business
day until Tenant's use can be restored.
(d) Notwithstanding the provisions of subsections (a),(b) and (c) of
this Section, the cost of any repairs shall be borne by Tenant (but not to
exceed an amount equal to the lesser of Landlord's property insurance deductible
or Tenant's liability insurance coverage limit), and Tenant shall not be
entitled to rental abatement or termination rights, if the damage is due to the
negligence or willful misconduct of Tenant or its employees, subtenants,
contractors or representatives. In addition, the provisions of this Section
shall not be deemed to require Landlord to repair any improvements or fixtures
that Tenant is obligated to repair or insure pursuant to any other provision of
this Lease.
SECTION 11.2. LEASE GOVERNS. Tenant agrees that the provisions of this
Lease, including without limitation Section 11.1, shall govern any damage or
destruction and shall accordingly supersede any contrary statute or rule of law.
ARTICLE XII. EMINENT DOMAIN
SECTION 12.1. TOTAL OR PARTIAL TAKING. If all or a material portion of the
Premises in a Building is taken by any lawful authority by exercise of the right
of eminent domain, or sold to prevent a taking, or if access to the Premises
therein is substantially removed or impaired by any such taking, either Tenant
or Landlord may terminate this Lease as to the portion of the Premises situated
in the affected Building, effective as of the date possession is required to be
surrendered to the authority. In the event title to a portion of a Building or
Project, other then the Premises, is taken or sold in lieu of taking, and if
Landlord elects to restore that Building in such a way as to alter the Premises
therein materially or to substantially remove or impair access to that Premises,
either party may terminate this Lease as to the affected Premises by written
notice to the other party, effective on the date of vesting of title. In the
event neither party has elected to terminate as provided above, then Landlord
shall promptly, after receipt of a sufficient condemnation award, proceed to
restore the Premises to substantially their condition prior to the taking, and a
proportionate allowance shall be made to Tenant for the rent corresponding to
the time during which, and to the part of the Premises of which, Tenant is
deprived on account of the taking and restoration. In the event of a taking,
Landlord shall be entitled to the entire amount of the condemnation
18
award without deduction for any estate or interest of Tenant; provided that
nothing in this Section shall be deemed to give Landlord any interest in, or
prevent Tenant from seeking any award against the taking authority for, the
taking of personal property and fixtures belonging to Tenant or for relocation
or business interruption expenses recoverable from the taking authority or for
Tenant's goodwill.
SECTION 12.2. TEMPORARY TAKING. No temporary taking of the Premises shall
terminate this Lease or give Tenant any right to abatement of rent, and any
award specifically attributable to a temporary taking of the Premises shall
belong entirely to Tenant. A temporary taking shall be deemed to be a taking of
the use or occupancy of the Premises for a period of not to exceed thirty (30)
days.
SECTION 12.3. TAKING OF PARKING AREA. In the event there shall be a taking
of the parking area for a Building such that Landlord can no longer provide
sufficient parking to comply with this Lease, Landlord may substitute reasonably
equivalent parking in a location reasonably close to the Building; provided that
if Landlord fails to make that substitution within ninety (90) days following
the taking and if the taking materially impairs Tenant's use and enjoyment of
the Premises in the affected Building, Tenant may, at its option, terminate this
Lease into the portion of the Premises in that Building by written notice to
Landlord. If this Lease is not so terminated by Tenant, there shall be no
abatement of rent and this Lease shall continue in effect.
ARTICLE XIII. SUBORDINATION; ESTOPPEL CERTIFICATE
SECTION 13.1. SUBORDINATION. At the option of Landlord or any of its
mortgagees/deed of trust beneficiaries, this Lease shall be either superior or
subordinate to all ground or underlying leases, mortgages and deeds of trust, if
any, which may hereafter affect the Building, and to all renewals,
modifications, consolidations, replacements and extensions thereof; provided,
that so long as Tenant is not in default under this Lease, this Lease shall not
be terminated or Tenant's quiet enjoyment of the Premises disturbed in the event
of termination of any such ground or underlying lease, or the foreclosure of any
such mortgage or deed of trust, to which Tenant has subordinated this Lease
pursuant to this Section. Landlord shall use its commercially reasonable efforts
to obtain a nondisturbance covenant for the benefit of Tenant from Landlord's
initial mortgagee of the Building within thirty (30) days following the
effective date of that mortgage/deed of trust. In the event of a termination or
foreclosure, Tenant shall become a tenant of and attorn to the
successor-in-interest to Landlord upon the same terms and conditions as are
contained in this Lease, and shall promptly execute any instrument reasonably
required by Landlord's successor for that purpose. Tenant shall also, within ten
(10) days following written request of Landlord (or the beneficiary under any
deed of trust encumbering the Building), execute and deliver all instruments as
may be required from time to time by Landlord or such beneficiary (including
without limitation any subordination, nondisturbance and attornment agreement in
the form customarily required by such beneficiary) to subordinate this Lease and
the rights of Tenant under this Lease to any ground or underlying lease or to
the lien of any mortgage or deed of trust; provided, however, that any such
beneficiary may, by written notice to Tenant given at any time, subordinate the
lien of its deed of trust to this Lease. Tenant may condition its execution of
any subordination agreement upon its receipt of a commercially reasonable
non-disturbance covenant from the beneficiary of the subordination agreement.
Failure of Tenant to execute any statements or instruments necessary or
desirable to effectuate the provisions of this Article, within thirty (30) days
after written request by Landlord, shall constitute a default under this Lease.
Tenant acknowledges that Landlords mortgagees and successors-in-interest and all
beneficiaries under deeds of trust encumbering the Building are intended third
party beneficiaries of this Section.
SECTION 13.2. ESTOPPEL CERTIFICATE. Tenant shall, at any time upon not
less than thirty (30) days prior written notice from Landlord, execute,
acknowledge and deliver to Landlord, in any form that Landlord may reasonably
require, a statement in writing in favor of Landlord and/or any prospective
purchaser or encumbrancer of the Building (i) certifying that this Lease is
unmodified and in full force and effect (or, if modified, stating the nature of
the modification and certifying that this Lease, as modified, is in full force
and effect) and the dates to which the rental, additional rent and other charges
have been paid in advance, if any, and (ii) acknowledging that, to Tenant's
knowledge, there are no uncured defaults on the part of Landlord, or specifying
each default if any are claimed, and (iii) setting forth all further information
that Landlord may reasonably require. Tenant's statement may be relied upon by
any prospective purchaser or encumbrancer of all or any portion of the Building
or Project. Tenant's failure to deliver any estoppel statement within the
provided time shall constitute a default under this Lease and shall be
conclusive upon Tenant that (i) this Lease is in full force and effect, without
modification except as may be represented by Landlord. (ii) there are no uncured
defaults in Landlord's performance, and (iii) not more than one month's rental
has been paid in advance. Upon request by Tenant made not more often than
annually, Landlord shall provide a similar estoppel certificate for the benefit
of any potential third party lender or purchaser of Tenant.
ARTICLE XIV. DEFAULTS AND REMEDIES
SECTION 14.1. TENANT'S DEFAULTS. In addition to any other event of default
set forth in this Lease, the occurrence of any one or more of the following
events shall constitute a default by Tenant:
(a) The failure by Tenant to make any payment of rent or additional
rent required to be made by Tenant, as and when due, where the failure continues
for a period of five (5) business days after written notice from Landlord to
Tenant; provided, however, that any such notice shall be in lieu of,
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and not in addition to, any notice required under California Code of Civil
Procedure Section 1161 and 1161(a) as amended. For purposes of these default and
remedies provisions, the term "additional rent" shall be deemed to include all
amounts of any type whatsoever other than Basic Rent to be paid by Tenant
pursuant to the terms of this Lease.
(b) Assignment, sublease, encumbrance or other transfer of the Lease
by Tenant, either voluntarily or by operation of law, whether by judgment,
execution, transfer by intestacy or testacy, or other means, without the prior
written consent of Landlord, except where such consent is not required.
(c) The discovery by Landlord that any financial statement provided
by Tenant, or by any affiliate, successor or guarantor of Tenant, was materially
false.
(d) The failure or inability by Tenant to observe or perform any of
the covenants or provisions of this Lease to be observed or performed by Tenant,
other than as specified in any other subsection of this Section, where the
failure continues for a period of thirty (30) days after written notice from
Landlord to Tenant; provided, however, that any such notice shall be in lieu of,
and not in addition to, any notice required under California Code of Civil
Procedure Section 1161 and 1161(a) as amended. However, if the nature of the
failure is such that more than thirty (30) days are reasonably required for its
cure, then Tenant shall not be deemed to be in default if Tenant commences the
cure within thirty (30) days, and thereafter diligently pursues the cure to
completion.
(e) (i) The making by Tenant of any general assignment for the
benefit of creditors;(ii)the filing by or against Tenant of a petition to have
Tenant adjudged a Chapter 7 debtor under the Bankruptcy Code or to have debts
discharged or a petition for reorganization or arrangement under any law
relating to bankruptcy (unless, in the case of a petition filed against Tenant,
the same is dismissed within ninety (90) days); (iii) the appointment of a
trustee or receiver to take possession of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease, if possession is
not restored to Tenant within sixty (60) days; (iv) the attachment, execution or
other judicial seizure of substantially all of Tenant's assets located at the
Premises or of Tenant's interest in this Lease, where the seizure is not
discharged within sixty (60) days; or (v) Tenant's convening of a meeting of its
creditors for the purpose of effecting a moratorium upon or composition of its
debts. Landlord shall not be deemed to have knowledge of any event described in
this subsection unless notification in writing is received by Landlord, nor
shall there be any presumption attributable to Landlord of Tenant's insolvency.
In the event that any provision of this subsection is contrary to applicable
law, the provision shall be of no force or effect.
SECTION 14.2. LANDLORD'S REMEDIES.
(a) In the event of any default by Tenant, then in addition to any
other remedies available to Landlord, Landlord may exercise the following
remedies:
(i) Landlord may terminate Tenant's right to possession of the
Premises by any lawful means, in which case this Lease shall terminate and
Tenant shall immediately surrender possession of the Premises to Landlord. Such
termination shall not affect any accrued obligations of Tenant under this Lease.
Upon termination, Landlord shall have the right to reenter the Premises and
remove all persons and property. Landlord shall also be entitled to recover from
Tenant:
(1) The worth at the time of award of the unpaid rent and
additional rent which had been earned at the time of termination;
(2) The worth at the time of award of the amount by which
the unpaid rent and additional rent which would have been earned after
termination until the time of award exceeds the amount of such loss that Tenant
proves could have been reasonably avoided;
(3) The worth at the time of award of the amount by which
the unpaid rent and additional rent for the balance of the Term after the time
of award exceeds the amount of such loss that Tenant proves could be reasonably
avoided;
(4) Any other amount necessary to compensate Landlord for
all the detriment proximately caused by Tenant's failure to perform its
obligations under this Lease or which in the ordinary course of things would be
likely to result from Tenant's default; and
(5) At Landlord's election, all other amounts in addition to
or in lieu of the foregoing as maybe permitted by law. The term "rent" as used
in this Lease shall be deemed to mean the Basic Rent and all other sums required
to be paid by Tenant to Landlord pursuant to the terms of this Lease. Any sum,
other than Basic Rent, shall be computed on the basis of the average monthly
amount accruing during the twenty-four (24) month period immediately prior to
default, except that if it becomes necessary to compute such rental before the
twenty-four (24) month period has occurred, then the computation shall be on the
basis of the average monthly amount during the shorter period. As used in
subparagraphs (1) and (2) above, the "worth at the time of award" shall be
computed by allowing interest at the rate of ten percent (10%) per annum. As
used in subparagraph (3) above, the "worth at the time of award" shall be
computed by discounting the amount at the discount rate of the Federal Reserve
Bank of San Francisco at the time of award plus one percent (1%).
(ii) Landlord may elect not to terminate Tenant's right to
possession of the Premises, in which event Landlord may continue to enforce all
of its rights and remedies under this Lease, including the right to collect all
rent as it becomes due. Efforts by the Landlord to maintain, preserve or
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relet the Premises, or the appointment of a receiver to protect the Landlord's
interests under this Lease, shall not constitute a termination of the Tenant's
right to possession of the Premises. In the event that Landlord elects to avail
itself of the remedy provided by this subsection (ii), Landlord shall not
unreasonably withhold its consent to an assignment or subletting of the Premises
subject to the reasonable standards for Landlord's consent as are contained in
this Lease.
(b) The various rights and remedies reserved to either party in this
Lease or otherwise shall be cumulative and, except as otherwise provided by
California law, either party may pursue any or all of its rights and remedies at
the same time. No delay or omission of Landlord to exercise any right or remedy
shall be construed as a waiver of the right or remedy or of any default by
Tenant. The acceptance by Landlord of rent shall not be a (i) waiver of any
preceding breach or default by Tenant of any provision of this Lease, other than
the failure of Tenant to pay the particular rent accepted, regardless of
Landlord's knowledge of the preceding breach or default at the time of
acceptance of rent, or (ii) a waiver of Landlord's right to exercise any remedy
available to Landlord by virtue of the breach or default. No payment by Tenant
or receipt by Landlord of a lesser amount than the rent required by this Lease
shall be deemed to be other than a partial payment on account of the earliest
due stipulated rent, nor shall any endorsement or statement on any check or
letter be deemed an accord and satisfaction and Landlord shall accept the check
or payment without prejudice to Landlord's right to recover the balance of the
rent or pursue any other remedy available to it. No act or thing done by
Landlord or Landlord's agents during the Term shall be deemed an acceptance of a
surrender of the Premises, and no agreement to accept a surrender shall be valid
unless in writing and signed by Landlord. No employee of Landlord or of
Landlord's agents shall have any power to accept the keys to the Premises prior
to the termination of this Lease, and the delivery of the keys to any employee
shall not operate as a termination of the Lease or a surrender of the Premises.
SECTION 14.3. LATE PAYMENTS. Any rent due under this Lease that is not
paid to Landlord within ten (10) days of the date when due shall bear interest
at the rate of ten percent (l0%) per annum from the date due until fully paid.
The payment of interest shall not cure any default by Tenant under this Lease.
In addition, Tenant acknowledges that the late payment by Tenant to Landlord of
rent will cause Landlord to incur costs not contemplated by this Lease, the
exact amount of which will be extremely difficult and impracticable to
ascertain. Those costs may include, but are not limited to, administrative,
processing and accounting charges, and late charges which may be imposed on
Landlord by the terms of any ground lease, mortgage or trust deed covering the
Premises. Accordingly, if any rent due from Tenant shall not be received by
Landlord or Landlord's designee within ten (10) days after the date due, then
Tenant shall pay to Landlord, in addition to the interest provided above, a late
charge in the amount of one hundred dollars ($100.00) for each delinquent
payment; provided that the foregoing late payment charge will not be applicable
to the first late payment in any calendar year unless such late payment is not
paid to Landlord within three (3) days after written notice from Landlord to
Tenant. Acceptance of a late charge by Landlord shall not constitute a waiver of
Tenant's default with respect to the overdue amount, nor shall it prevent
Landlord from exercising any of its other rights and remedies.
SECTION 14.4. RIGHT OF LANDLORD TO PERFORM. All covenants and agreements
to be performed by Tenant under this Lease shall be performed at Tenant's sole
cost and expense and without any abatement of rent or right of set-off, except
as specifically permitted by this Lease. if Tenant fails to pay any sum of
money, or fails to perform any other act on its part to be performed under this
Lease, and the failure continues beyond any applicable grace period set forth in
section 14.1, then in addition to any other available remedies, Landlord may, at
its election make the payment or perform the other act on Tenant's part.
Landlord's election to make the payment or perform the act on Tenant's part
shall not give rise to any responsibility of Landlord to continue making the
same or similar payments or performing the same or similar acts. Tenant shall,
promptly upon demand by Landlord, reimburse Landlord for all sums paid by
Landlord and all necessary incidental costs, together with interest at the rate
of ten percent (1O%) per annum from the date of the payment by Landlord.
SECTION 14.5. DEFAULT BY LANDLORD. Landlord shall not be deemed to be in
default in the performance of any obligation under this Lease unless and until
it has failed to perform the obligation within thirty (30) days after written
notice by Tenant to Landlord specifying in reasonable detail the nature and
extent of the failure; provided, however, that if the nature of Landlord's
obligation is such that more than thirty (30) days are required for its
performance, then Landlord shall not be deemed to be in default if it commences
performance within the thirty (30) day period and thereafter diligently pursues
the cure to completion.
SECTION 14.6. EXPENSES AND LEGAL FEES. Should either Landlord or Tenant
bring any action in connection with this Lease, the prevailing party shall be
entitled to recover as a part of the action its reasonable attorneys' fees, and
all other costs. The prevailing party for the purpose of this paragraph shall be
determined by the trier of the facts.
SECTION 14.7. WAIVER OF JURY TRIAL/RIGHT TO ARBITRATE.
(a) LANDLORD AND TENANT EACH ACKNOWLEDGES THAT IT IS AWARE OF AND
HAS HAD THE ADVICE OF COUNSEL OF ITS CHOICE WITH RESPECT TO ITS RIGHT TO TRIAL
BY JURY, AND EACH PARTY DOES HEREBY EXPRESSLY AND KNOWINGLY WAIVE AND RELEASE
ALL SUCH RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
BROUGHT BY EITHER PARTY HERETO AGAINST THE OTHER (AND/OR AGAINST ITS OFFICERS,
DIRECTORS, EMPLOYEES, AGENTS, OR SUBSIDIARY OR AFFILIATED ENTITIES) ON ANY
MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE,
TENANTS USE OR OCCUPANCY OF THE PREMISES, AND/OR ANY CLAIM OF INJURY OR DAMAGE.
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(b) SHOULD A DISPUTE ARISE BETWEEN THE PARTIES REGARDING ANY MATTER
DESCRIBED ABOVE, THEN EXCEPT WITH RESPECT TO ACTIONS FOR UNLAWFUL OR FORCIBLE
DETAINER EITHER PARTY MAY CAUSE THE DISPUTE TO BE SUBMITTED TO JAMS/ENDISPUTE OR
ITS SUCCESSOR ("JAM") IN THE COUNTY IN WHICH THE BUILDING IS SITUATED FOR
BINDING ARBITRATION BEFORE A SINGLE ARBITRATOR. HOWEVER, EACH PARTY RESERVES THE
RIGHT TO SEEK A PROVISIONAL REMEDY BY JUDICIAL ACTION. NO ARBITRATION ELECTION
BY EITHER PARTY PURSUANT TO THIS SUBSECTION SHALL BE EFFECTIVE IF MADE LATER
THAN THIRTY (30) DAYS FOLLOWING SERVICE OF A JUDICIAL SUMMONS AND COMPLAINT BY
OR UPON SUCH PARTY CONCERNING THE DISPUTE. THE ARBITRATION SHALL BE CONDUCTED IN
ACCORDANCE WITH THE STREAMLINED RULES OF PRACTICE AND PROCEDURE OF JAMS AND
OTHERWISE PURSUANT TO THE CALIFORNIA ARBITRATION ACT (CODE OF CIVIL PROCEDURE
SECTIONS 1280 ET SEQ.). NOTWITHSTANDING THE FOREGOING, THE ARBITRATOR IS
SPECIFICALLY DIRECTED TO LIMIT DISCOVERY TO THAT WHICH IS ESSENTIAL TO THE
EFFECTIVE PROSECUTION OR DEFENSE OF THE ACTION, AND IN NO EVENT SHALL SUCH
DISCOVERY BY EITHER PARTY INCLUDE MORE THAN ONE NON-EXPERT WITNESS DEPOSITION
UNLESS BOTH PARTIES OTHERWISE AGREE. THE ARBITRATOR SHALL APPORTION THE COSTS OF
THE ARBITRATION, TOGETHER WITH THE ATTORNEYS' FEES OF THE PARTIES, IN THE MANNER
DEEMED EQUITABLE BY THE ARBITRATOR, IT BEING THE INTENTION OF THE PARTIES THAT
THE PREVAILING PARTY ORDINARILY BE ENTITLED TO RECOVER ITS REASONABLE COSTS AND
FEES. JUDGMENT UPON ANY AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED BY ANY
COURT HAVING JURISDICTION.
ARTICLE XV. END OF TERM
SECTION 15.1. HOLDING OVER. This Lease shall terminate without further
notice upon the expiration of the Term, and any holding over by Tenant after the
expiration shall not constitute a renewal or extension of this Lease, or give
Tenant any rights under this Lease, except when in writing signed by both
parties. If Tenant holds over for any period after the expiration (or earlier
termination) of the Term, Landlord may, at its option, treat Tenant as a tenant
at sufferance only, commencing on the first (1st) day following the termination
of this Lease. Any hold-over by Tenant shall be subject to all of the terms of
this Lease, except that the monthly rental shall be one hundred fifty percent
(150%) of the total monthly rental for the month immediately preceding the date
of termination, subject to Landlord's right to modify same upon thirty (30) days
notice to Tenant effective as of any date on or after the first day of the third
month of the holdover. If Tenant falls to surrender the Premises upon the
expiration of this Lease despite demand to do so by Landlord, Tenant shall
indemnify and hold Landlord harmless from all loss or liability, including
without limitation, any claims made by any succeeding tenant relating to such
failure to surrender, provided that Landlord notifies Tenant in writing of the
nature of such liability prior to the expiration of this Lease or within ten
(10) days after any early termination. Acceptance by Landlord of rent after the
termination shall not constitute a consent to a holdover or result in a renewal
of this Lease. The foregoing provisions of this Section are in addition to and
do not affect Landlord's right of re-entry or any other rights of Landlord under
this Lease or at law.
SECTION 15.2. MERGER ON TERMINATION. The voluntary or other surrender of
this Lease by Tenant, or a mutual termination of this Lease, shall terminate any
or all existing subleases unless Landlord, at its option, elects in writing to
treat the surrender or termination as an assignment to it of any or all
subleases affecting the Premises.
SECTION 15.3. SURRENDER OF PREMISES; REMOVAL OF PROPERTY. Upon the
Expiration Date or upon any earlier termination of this Lease, Tenant shall quit
and surrender possession of the Premises to Landlord in as good order, condition
and repair as when received or as hereafter may be improved by Landlord or
Tenant, reasonable wear and tear and repairs which are Landlord's obligation
excepted, and shall, without expense to Landlord, remove or cause to be removed
all voice and/or data transmission cabling installed by or for Tenant, together
with all personal property and debris, except for any items that Landlord may by
written authorization allow to remain. Tenant shall repair all damage to the
Premises resulting from the removal, which repair shall include the patching and
filling of holes and repair of structural damage, provided that Landlord may
instead elect to repair any structural damage at Tenant's expense. If Tenant
shall fail to comply with the provisions of this Section, Landlord may effect
the removal and/or make any repairs, and the cost to Landlord shall be
additional rent payable by Tenant upon demand. If requested by Landlord, Tenant
shall execute, acknowledge and deliver to Landlord an instrument in writing
releasing and quitclaiming to Landlord all right, title and interest of Tenant
in the Premises.
ARTICLE XVI. PAYMENTS AND NOTICES
All sums payable by Tenant to Landlord shall be paid, without deduction or
offset except as specifically provided herein, in lawful money of the United
States to Landlord at its address set forth in item 12 of the Basic Lease
Provisions, or at any other place as Landlord may designate in writing. Unless
this Lease expressly provides otherwise, as for example in the payment of rent
pursuant to Section 4.1, all payments shall be due and payable within thirty
(30) days after demand. All payments requiring proportion shall be prorated on
the basis of a thirty (30) day month and a three hundred sixty (360) day year.
Any notice, election, demand, consent, approval or other communication to be
given or other document to be delivered by either party to the other shall be in
writing (unless otherwise authorized
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herein) and may be delivered to the other party, at the address set forth in
Item 12 of the Basic Lease Provisions, by personal service or telegram, or by
any courier or "overnight" express mailing service, or may be deposited in the
United States mail, postage prepaid. Either party may, by written notice to the
other, served in the manner provided in this Article, designate a different
address. If any notice or other document is sent by mail, it shall be deemed
served or delivered three (3) business days after mailing. If more than one
person or entity is named as Tenant under this Lease, service of any notice upon
any one of them shall be deemed as service upon all of them.
ARTICLE XVII. RULES AND REGULATIONS
Tenant agrees to comply with the Rules and Regulations attached as Exhibit
E, and any reasonable and nondiscriminatory amendments, modifications and/or
additions as may be adopted and published by written notice to tenants by
Landlord for the safety, care, security, good order, or cleanliness of the
Premises, Building, Project and/or Common Areas. Landlord shall not be liable to
Tenant for any violation of the Rules and Regulations or the breach of any
covenant or condition in any lease or any other act or conduct by any other
tenant, and the same shall not constitute a constructive eviction hereunder. One
or more waivers by Landlord of any breach of the Rules and Regulations by Tenant
or by any other tenant(s) shall not be a waiver of any subsequent breach of that
rule or any other. Tenant's failure to keep and observe the Rules and
Regulations after notice and a five (5) business day cure period shall
constitute a default under this Lease. In the case of any conflict between the
Rules and Regulations and this Lease, this Lease shall be controlling.
ARTICLE XVIII. BROKER'S COMMISSION
The parties recognize as the broker(s) who negotiated this Lease the
firm(s), if any, whose name(s) is (are) stated in Item 10 of the Basic Lease
Provisions, and agree that Landlord shall be responsible for the payment of
brokerage commissions to those broker(s) unless otherwise provided in this
Lease. Each party warrants that it has had no dealings with any other real
estate broker or agent in connection with the negotiation of this Lease, and
agrees to indemnify and hold the other party harmless from any cost, expense or
liability (including reasonable attorneys' fees) for any compensation,
commissions or charges claimed by any other real state broker or agent employed
or claiming to represent or to have been employed by the indemnifying party in
connection with the negotiation of this Lease. The foregoing agreement shall
survive the termination of this Lease.
ARTICLE XIX. TRANSFER OF LANDLORD'S INTEREST
In the event of any transfer of Landlord's interest in the Premises, the
transferor shall be automatically relieved of all obligations on the part of
Landlord accruing under this Lease from and after the date of the transfer,
provided that any funds held by the transferor in which Tenant has an interest
shall be turned over, subject to that interest, to the transferee and Tenant is
notified of the transfer as required by law, and the transferee assumes in
writing the obligations of the Landlord accruing after such transfer. No holder
of a mortgage and/or deed of trust to which this Lease is or may be subordinate
shall be responsible in connection with the Security Deposit, unless the
mortgagee or holder of the deed of trust or the landlord actually receives the
Security Deposit. It is intended that the covenants and obligations contained in
this Lease on the pail of Landlord shall, subject to the foregoing, be binding
on Landlord, its successors and assigns, only during and in respect to their
respective successive periods of ownership.
ARTICLE XX. INTERPRETATION
SECTION 20.1. GENDER AND NUMBER. Whenever the context of this Lease
requires, the words "Landlord" and "Tenant" shall include the plural as well as
the singular, and words used in neuter, masculine or feminine genders shall
include the others.
SECTION 20.2. HEADINGS. The captions and headings of the articles and
sections of this Lease are for convenience only, are not a part of this Lease
and shall have no effect upon its construction or interpretation.
SECTION 20.3. JOINT AND SEVERAL LIABILITY. If more than one person or
entity is named as Tenant, the obligations imposed upon each shall be joint and
several and the act of or notice from, or notice or refund to, or the signature
of, any one or more of them shall be binding on all of them with respect to the
tenancy of this Lease, including, but not limited to, any renewal, extension,
termination or modification of this Lease.
SECTION 20.4. SUCCESSORS. Subject to Articles IX and XIX, all rights and
liabilities given to or imposed upon Landlord and Tenant shall extend to and
bind their respective heirs, executors, administrators, successors and assigns.
Nothing contained in this Section is intended, or shall be construed, to grant
to any person other than Landlord and Tenant and their successors and assigns
any rights or remedies under this Lease.
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SECTION 20.5. TIME OF ESSENCE. Time is of the essence with respect to the
performance of every provision of this Lease in which time of performance is a
factor, including without limitation the provisions of Sections 2.4, 2.5 and 3.3
above.
SECTION 20.6. CONTROLLING LAW. This Lease shall be governed by and
interpreted in accordance with the laws of the State of California.
SECTION 20.7. SEVERABILITY. If any term or provision of this Lease, the
deletion of which would not adversely affect the receipt of any material benefit
by either party or the deletion of which is consented to by the party adversely
affected, shall be held invalid or unenforceable to any extent, the remainder of
this Lease shall not be affected and each term and provision of this Lease shall
be valid and enforceable to the fullest extent permitted by law.
SECTION 20.8. WAIVER. One or more waivers by Landlord or Tenant of any
breach of any term, covenant or condition contained in this Lease shall not be a
waiver of any subsequent breach of the same or any other term, covenant or
condition. Consent to any act by one of the parties shall not be deemed to
render unnecessary the obtaining of that party's consort to any subsequent act.
No breach of this Lease shall be deemed to have been waived unless the waiver is
in a writing signed by the waiving party.
SECTION 20.9 INABILITY TO PERFORM. In the event that either party shall be
delayed or hindered in or prevented from the performance of any work or in
performing any act required under this Lease by reason of any cause beyond the
reasonable control of that party, then the performance of the work or the doing
of the act shall be excused for the period of the delay and the time for
performance shall be extended for a period equivalent to the period of the
delay. The provisions of this Section shall nor operate to excuse Tenant from
the prompt payment of rent.
SECTION 20.10. ENTIRE AGREEMENT. This Lease and its exhibits and other
attachments cover in full each and every agreement of every kind between the
parties concerning the Premises, the Building, and the Project, and all
preliminary negotiations, oral agreements, understandings and/or practices,
except those contained in this Lease, are superseded and of no further effect.
Tenant waives its rights to rely on any representations or promises made by
Landlord or others which are not contained in this Lease. No verbal agreement or
implied covenant shall be held to modify the provisions of this Lease, any
statute, law, or custom to the contrary notwithstanding.
SECTION 20.11. QUIET ENJOYMENT. Upon the observance and performance of all
the covenants, terms and conditions on Tenant's part to be observed and
performed, and subject to the other provisions of this Lease, Tenant shall
peaceably and quietly hold and enjoy the Premises for the Term without hindrance
or interruption by Landlord or any other person claiming by or through Landlord.
SECTION 20.12. SURVIVAL. All covenants of Landlord or Tenant which
reasonably would be intended to survive the expiration or sooner termination of
this Lease, including without limitation any warranty or indemnity hereunder,
shall so survive and continue to be binding upon and inure to the benefit of the
respective parties and their successors and assigns.
ARTICLE XXI. EXECUTION AND RECORDING
SECTION 21.1. COUNTERPARTS. This Lease may be executed in one or more
counterparts, each of which shall constitute an original and all of which shall
be one and the same agreement.
SECTION 21.2. CORPORATE AND PARTNERSHIP AUTHORITY. If either party is a
corporation or partnership, each individual executing this Lease on behalf of
the applicable corporation or partnership represents and warrants that he is
duly authorized to execute and deliver this Lease on behalf of the corporation
or partnership. and that this Lease is binding upon the corporation or
partnership in accordance with its terms.
SECTION 21.3. EXECUTION OF LEASE; NO OPTION OR OFFER. The submission of
this Lease to Tenant shall be for examination purposes only, and shall not
constitute an offer to or option for Tenant to lease the Premises. Execution of
this Lease by Tenant and its return to Landlord shall not be binding upon
Landlord, notwithstanding any time interval, until Landlord has in fact executed
and delivered this Lease to Tenant, it being intended that this Lease shall only
become effective upon execution by Landlord and delivery of a fully executed
counterpart to Tenant.
SECTION 21.4. RECORDING. Tenant shall not record this Lease without the
prior written consent of Landlord. Tenant, upon the request of Landlord, shall
execute and acknowledge a "short form" memorandum of this Lease for recording
purposes.
SECTION 21.5. AMENDMENTS. No amendment or mutual termination of this Lease
shall be effective unless in writing signed by authorized signatories of Tenant
and Landlord, or by their respective successors in interest. No actions,
policies, oral or informal arrangements, business dealings pr other course of
conduct by or between the parties shall be deemed to modify this Lease in any
respect.
24
ARTICLE XXII. MISCELLANEOUS
SECTION 22.1. NONDISCLOSURE OF LEASE TERMS. Tenant acknowledges and agrees
that the terms of this Lease are confidential and constitute proprietary
information of Landlord. Disclosure of the terms could adversely affect the
ability of Landlord to negotiate other leases and impair Landlord's relationship
with other tenants. Accordingly, Tenant agrees that it, and its partners,
officers, directors, employees and attorneys, shall not intentionally and
voluntarily disclose the terms and conditions of this Lease to any other tenant
or apparent prospective tenant of the Building or Project, either directly or
indirectly without the prior written consent of Landlord, provided, however,
that Tenant may disclose the terms to prospective subtenants or assignees under
this Lease or as otherwise required by law or in connection with any litigation
between the parties. Landlord agrees that it will not make any public
announcement about this Lease without Tenant's prior approval, which shall not
be unreasonably withheld, conditioned or delayed.
SECTION 22.2. REPRESENTATIONS BY TENANT. The application, financial
statements and tax returns, if any, submitted and certified to by Tenant as an
accurate representation of its financial condition have been prepared, certified
and submitted to Landlord as an inducement and consideration to Landlord to
enter into this Lease. The application and statements are represented and
warranted by Tenant to be correct and to accurately and fully reflect Tenant's
true financial condition as of the date of execution of this Lease by Tenant.
Tenant shall during the Term promptly furnish Landlord with annual financial
statements reflecting Tenant's financial condition upon written request from
Landlord in connection with a proposed sale or financing of the Building.
SECTION 22.3. CHANGES REQUESTED BY LENDER. If, in connection with
obtaining financing for the Building, the lender shall request reasonable
modifications in this Lease as a condition to the financing, Tenant will not
unreasonably withhold or delay its consent provided that the modifications do
not increase the obligations of Tenant or materially and adversely affect the
leasehold interest created by this Lease.
SECTION 22.4. MORTGAGEE PROTECTION. No act or failure to act on the part
of Landlord which would otherwise entitle Tenant to be relieved of its
obligations hereunder or to terminate this Lease shall result in such a release
or termination unless (a) Tenant has given notice by registered or certified
mail to any beneficiary of a deed of trust or mortgage covering the Building
whose address has been furnished to Tenant and (b) such beneficiary is afforded
a reasonable opportunity to cure the default by Landlord, including, if
necessary to effect the cure, time to obtain possession of the Building by power
of a sale or judicial foreclosure provided that such foreclosure remedy is
diligently pursued; provided, however, that with respect to monetary defaults,
the beneficiary's cure period shall be forty-five (45) days following receipt of
Tenant's written notice thereof.
SECTION 22.5. DISCLOSURE STATEMENT. Tenant acknowledge that it has read,
understands and, if applicable, shall comply with the provisions of Exhibit F to
this Lease, if that Exhibit is attached.
SECTION 22.6. SATELLITE DISH. At any time upon the execution by Tenant of
Landlord's standard License Agreement, Tenant shall have the right to maintain
and operate on the roof of the Building, during the Term of this Lease and
subject to the availability of sufficient roof-top space, up to four (4)
satellite dishes/antennae in accordance with and subject to the terms of said
License Agreement. During the initial sixty (60) months of the Lease Term only,
Tenant shall pay a license fee in the amount of Three Hundred Dollars ($300.00)
per month per antenna/dish for the aforementioned antennae/dishes. Thereafter,
the license fee for each antenna/dish shall be the amount then being charged by
Landlord for similar licenses from time to time. Any such installation by Tenant
shall be at Tenant's sole expense and shall be subject to receipt of all
required governmental approvals; provided that Landlord shall use reasonable
efforts to assist Tenant in obtaining such requisite approvals so long as
Landlord is not thereby required to incur any additional expense or liability.
The antennae/dishes shall not be visible from the exterior of the Building and
shall not interfere with Building Systems. Landlord shall not be deemed to have
made any representation either that Tenant's installation will comport with
applicable laws and ordinances or that adequate roof-top space is available for
Tenant's needs.
SECTION 22.7. EXISTING OFFICE SPACE LEASE. Landlord and Tenant are
presently parties to an office space lease dated July 5, 1994, as amended (the
"Existing Lease"), for Suites 200 and 300 in the office building located at 0
Xxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx (the "Existing Premises"). The Existing
Lease shall terminate as of midnight on the day preceding the Commencement Date
of this Lease. Until such termination occurs, and for a holdover period
thereafter of up to thirty (30) days, Landlord agrees that Tenant may continue
to occupy the Existing Premises upon the same terms and conditions set forth in
the Existing Lease, except that the basic rent for Suite 200 from and after July
1, 1998 shall be as follows: Fifty-Seven Thousand Seven Hundred Ninety-Eight
Dollars ($57,798.00) per month through August 31, 1999; thereafter, the basic
rent for Suite 200 shall, if applicable, be Sixty-Four Thousand Two Hundred
Twenty Dollars ($64,220.00) per month, which amount shall increase by three
percent (3%) on a compound and cumulative basis on each six (6) month
anniversary of September 1,1999. Notwithstanding the foregoing, however, should
Tenant need to continue its occupancy of the Existing Premises after the
expiration of the 30-day holdover period referenced above, then Tenant shall be
permitted to remain in the Existing Premises for an additional thirty (30) day
period subject to the provisions of the Existing Lease, except that the basic
rent for Suite 200 during that additional 30-day period shall be the greater of
(i) one hundred thirty-five percent (135%) of the basic rent payable for Suite
200 during the preceding month or (ii) the rate per rentable square foot that
Landlord is then receiving pursuant to its most recent leases within the Civic
Plaza project. In the event this Lease is terminated by
25
either party pursuant to Section 3.2 prior to the Commencement Date hereof, then
the Existing Lease shall continue in effect for a period of six (6) months
following such termination, during which time the basic rent for Suite 200 shall
be as set forth above. The termination of the Existing Lease shall not abrogate
any obligation accrued as of the date of termination or that is otherwise
reasonably intended to survive such termination.
SECTION 22.8. BUILDING STAIRWELLS. In the initial Building, as well as any
other building leased hereunder by Tenant in its entirety, Tenant shall have the
right to utilize the internal stairwells for inter-floor access. The stairwells
shall be accepted on an as-is basis and Landlord shall not have an obligation to
provide any additional improvements thereto.
SECTION 22.9. UPDATES. Upon request of Tenant from time to time, Landlord
shall cooperate with Tenant by sharing pertinent information regarding the
development and construction of the Building.
SECTION 22.10. CABLING. If and when Tenant leases space from Landlord
within one or more additional buildings in the Project, Landlord shall permit
Tenant to install underground conduit and cabling between the buildings occupied
by Tenant in accordance with plans and specifications approved in advance by
Landlord. No separate fee shall be charged by Landlord for the right to install
and maintain that cabling. As a condition to such installation, the parties
shall enter into a license agreement reasonably acceptable to both parties,
which agreement shall, without limitation, identify the location and manner of
installation of the conduit and shall require Tenant to restore all affected
landscape and hardscape. Landlord agrees that it shall reasonably cooperate with
Tenant, at Tenant's expense, to obtain any necessary governmental permit for
such installation.
SECTION 22.11. GOOD FAITH. Whenever the Lease grants Landlord or Tenant
the right to take action, exercise discretion, establish rules and regulations
or make allocations or other determinations, Landlord and Tenant shall act in
good faith and take no action which might result in the frustration of the
reasonable expectations of a sophisticated landlord and sophisticated tenant
concerning the benefits to be enjoyed under the Lease.
LANDLORD: TENANT:
THE IRVINE COMPANY PACIFIC INVESTMENT MANAGEMENT
COMPANY, a Delaware general partnership
By PIMCO MANAGEMENT, INC.,
a Delaware corporation, General Partner
By By /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------- ------------------------------------
Xxxxxxx X. Sim, Group President, Printed Name Xxxxxxx X. Xxxxxxxx
Investment Properties -----------------------
Title Managing Director & CEO
------------------------------
By By /s/ Xxxxxx X. Xxxxxxxx
--------------------------------- ------------------------------------
Xxxxxxx X. Xxxxxxx, President, Printed Name Xxxxxx X. Xxxxxxxx
Irvine Office Company, -----------------------
a division of The Irvine Company Title Executive Vice President
------------------------------
Approved as to Form.
Xxxxxx & Xxxxxxx
By /s/ X.X. Xxxxxxx
------------------
26
SITE PLAN
[DIAGRAM XX XXXXXXXXX XXXXX XXXX]
XXXXXXXXX XXXXX [LOGO OF THE IRVINE COMPANY
NEWPORT BEACH INVESTMENT PROPERTIES GROUP]
EXHIBIT A
EXHIBIT A-I
[DIAGRAM OF PIMCO CORPORATE PLAZA WEST]
PIMCO -
CORPORATE PLAZA WEST
--------------------
GENSLER 8.26.98
EXHIBIT B
UTILITIES AND SERVICES
The following standards for utilities and services shall be in effect with
respect to the Premises. In the case of any conflict between these standards and
the Lease, the Lease shall be controlling. Subject to all of the provisions of
the Lease, including but not limited to the restrictions contained in Section
6.1, the following shall apply:
1. Subject to Paragraph 8 below, Landlord shall furnish to the Premises
during the hours of 8:00 a.m. to 6:00 p.m., Monday through Friday, and 8:00 a.m
to 1:00 p.m. on Saturday, generally recognized national holidays and Sundays
excepted, air conditioning, heating and ventilation services in accordance with
the specifications referenced in Exhibit X; provided that with respect to the
initial Premises leased by Tenant consisting of the entire rentable area of the
Building, Tenant may establish the hours for normal HVAC service. Subject to the
provisions set forth below, Landlord shall also furnish the Building with
elevator service, electric power with an average capacity of at least eight (8)
xxxxx connected load and five (5) xxxxx demand load per usable square foot of
the Premises (inclusive of fluorescent and incandescent overhead lighting), and
water for lavatory, drinking, and office kitchen purposes, which services shall
be provided twenty-four hours per day, seven days per week. This paragraph shall
at all times be subject to applicable governmental regulations.
2. Subject to Paragraph 8 below, upon written request from Tenant
delivered to Landlord prior to the period for which service is requested, but
during normal business hours, Landlord will provide any of the foregoing
building services to Tenant at such times when such services are not otherwise
available. With respect to any additional space leased by Tenant for which HVAC
is not separately metered and billed to Tenant, Tenant agrees to pay Landlord
for those afterhour services at rates that Landlord may establish from time to
time provided such rates shall be consistent with those charged by landlords of
comparable first-class office projects in the vicinity. If Tenant requires
electric current in excess of that which Landlord is obligated to furnish under
this Exhibit B, Tenant shall first obtain the consent of Landlord, and Landlord
shall cause an electric current meter to be installed in the Premises to measure
the amount of electric current consumed. The cost of installation, maintenance
and repair of the meter shall be paid for by Tenant, and Tenant shall reimburse
Landlord promptly upon demand for all electric current consumed for any special
power use as shown by the meter. The reimbursement shall be at the rates charged
for electrical power by the local public utility furnishing the current, plus
any additional expense incurred in keeping account of the electric current
consumed.
3. [Intentionally omitted]
4. Landlord shall furnish water for drinking, lavatory, and office kitchen
purposes only. If Tenant requires or uses water for any other purposes, Landlord
may, in its discretion, install a water meter to measure Tenants water
consumption. Tenant shall pay Landlord for the cost of the meter and the cost of
its installation, and for consumption throughout the duration of Tenants
occupancy. Tenant shall keep the meter and installed equipment in good working
order and repair at Tenant's own cost and expense, in default of which Landlord
may cause the meter to be replaced or repaired at Tenant's expense. Tenant
agrees to pay for water consumed to the extent in excess of the amount Landlord
considers normal for office usage, which payment shall be based on consumption
as shown on the meter and when bills are rendered, and on Tenant's default in
making that payment Landlord may pay the charges on behalf of Tenant. Any costs
or expenses or payments made by Landlord for any of the reasons or purposes
stated above shall be deemed to be additional rent payable by Tenant to Landlord
upon demand.
5. In the event that any utility service to the Premises is separately
metered or billed to Tenant, Tenant shall pay all charges for that utility
service to the Premises and the cost of furnishing the utility to tenant suites
shall be excluded from the Operating Expenses as to which reimbursement from
Tenant is required in the Lease. If any utility charges are not paid when due
Landlord may pay them, and any amounts paid by Landlord shall immediately become
due to Landlord from Tenant as additional rent. If Landlord elects to furnish
any utility service to the Premises, Tenant shall purchase its requirements of
that utility from Landlord as long as the rates charged by Landlord do not
exceed those which Tenant would be required to pay if the utilIty service were
furnished it directly by a public utility.
6. Landlord shall provide janitorial services five days per week in
accordance with the Janitorial Specifications attached as Exhibit B-1, and
window washing as reasonably required; provided, however, that Tenant shall pay
for any additional or unusual janitorial services rendered by reason of any
nonstandard improvements in the Premises, including without limitation wall
coverings and floor coverings installed by or for Tenant, or by reason of any
use of Premises other than exclusively as offices. The cleaning services
provided by Landlord shall also exclude refrigerators, eating utensils (plates,
drinking containers and silverware), and interior glass partitions. Tenant shall
pay to Landlord the cost of removal of any of Tenant's refuse and rubbish, to
the extent that they exceed the refuse and rubbish usually attendant with
general office usage.
7. Tenant shall have access to the Building and parking facilities 24
hours per day, 7 days per week, 52 weeks per year; provided that Landlord may
install access control systems as it deems advisable for the Building. Such
systems shall initially include a card identification access system, although
Landlord may from time to time provide additional or alternative procedures.
Landlord may impose a reasonable charge for access control cards and/or keys
issued to Tenant. Landlord shall have no liability to Tenant for the provision
by Landlord of improper access control services, for any breakdown in service,
or for the failure by Landlord to provide access control services. Tenant
further acknowledges
1
that Landlord's access systems may be temporarily inoperative during building
emergency and system repair periods. Tenant agrees to assume responsibility for
compliance by its employees with any regulations established by Landlord with
respect to any card key access or any other system of building access as
Landlord may establish. Tenant shall be liable to Landlord for any loss or
damage resulting from its or its employees misuse of any access system. In
addition to the foregoing, Tenant may, at its sole expense, install its own
security system in the Premises and in the landing areas of the stairwells on
those floors on which Tenant leases space hereunder. Any security system
installed by Tenant shall be subject to Landlord's prior review and reasonable
approval (which approval shall not be deemed a warranty of fitness), shall not
interfere with Landlord's Building systems, and shall not be visible from the
exterior of the Premises unless otherwise approved by Landlord. Any system
installed by Tenant shall be promptly removed by Tenant, at its expense, if and
when Tenant vacates the applicable Premises.
8. Notwithstanding the foregoing, it is understood that with respect to
the initial Premises leased by Tenant consisting of the entire rentable area of
the Building, electricity, gas and water services to the Building shall be
separately metered. The cost of those utility services to the Building shall be
invoiced to Tenant and paid in full as additional rent by Tenant, promptly
following receipt of invoice, directly to the applicable utility provider
provided that Landlord may instead elect to make such utility payments, in which
event Tenant shall promptly reimburse Landlord in full as additional rent upon
receipt of invoices therefor.
9. Tenant may, at its sole expense, install, operate and maintain an
emergency generator in or about the Building for back-up power in support of its
communications and data systems in the Premises. The location of the emergency
generator shall be as shown on Exhibit A-1 to this Lease. The equipment shall be
housed within an enclosure constructed, at Tenant's sole expense, with materials
and pursuant to a design consistent with Landlord's adjoining equipment
structure for the Building. Tenant shall also be responsible for the reasonable
cost of replacing any parking stalls lost due to the installation of Tenant's
generator. The plans for such enclosure shall be subject to Landlord's prior
written approval, which shall not be unreasonably withheld so long as the
requirements herein are satisfied. Any such equipment shall be self-sufficient
and separate from all Building systems.
2
JANITORIAL SPECIFICATIONS
-------------------------
Landlord shall use best efforts to provide cleaning services in accordance
with the following specifications:
I. OFFICE SPACE
A. DAILY
(1) Empty trash
(2) General carpet vacuuming
(3) General dusting of furniture and window ledges (if
clear)
(4) Spot clean carpet
(5) Damp and dry mop hard surface floors
(6) Spot clean doors, walls, and interior partition glass
(7) Clean lunch room tables and countertops (if clear)
B. WEEKLY
(1) Thorough vacuuming (i.e., under furniture)
(2) Dust lower furniture surfaces
(3) Dust areas over 6 feet high
(4) Damp wipe interior doors and vinyl furniture
C. MONTHLY
(1) Detail vacuuming (edges, covers)
(2) Vacuum drapes
(3) Dust miniblinds
(4) Clean vents
II. RESTROOMS
A. DAILY
(1) Clean/sanitize sinks, toilets, urinals
(2) Clean mirrors and stainless steel
(3) Sweep/disinfect floors
(4) Spot clean walls
(5) Damp wipe partitions
(6) Empty trash
(7) Replenish paper supplies, soap, etc.
B. WEEKLY
(1) Dust tops of partitions
(2) Flush floor drains
C. MONTHLY
(1) Scrub/refinish floors
(2) Clean vents
III. PUBLIC AREAS
A. DAILY
(1) Vacuum/sweep as needed
(2) Spot clean carpet
(3) Spot clean lobby doors
(4) Dust interior signage
(5) Wipe clean lobby directories
(6) Clean elevator cabs
B. WEEKLY
(1) Clean lobby doors
(2) Dust tops of door frames
C. MONTHLY
(1) Refinish lobby doors (where necessary)
(2) Clean vents
IV. WINDOWS
Windows to be cleaned inside and out, two (2) times per year.
EXHIBIT B-1
EXHIBIT C
PARKING
The following parking regulations shall be in effect at the Building.
Landlord reserves the right to adopt reasonable, nondiscriminatory modifications
and additions to the regulations by written notice to Tenant, provided such
modifications do not materially affect Tenant's access to the parking areas and
do not materially either impair the rights or increase the obligations of
Tenant. In the case of any conflict between these regulations and the Lease, the
Lease shall be controlling.
1. Landlord agrees to maintain, or cause to be maintained, an automobile
parking area ("Parking Area") in reasonable proximity to the Building for the
benefit and use of the visitors and patrons and, except as otherwise provided,
employees of Tenant and other tenants and occupants of the Building. The Parking
Area shall include, whether in a surface parking area or a parking structure,
the automobile parking stalls, driveways, entrances, exits, sidewalks and
attendant pedestrian passageways and other areas designated for parking.
Landlord shall have the right and privilege of determining the nature and extent
of the automobile Parking Area, whether it shall be surface, underground or
other structure, and of making such changes to the Parking Area from time to
time which in its opinion are desirable and for the best interest of all persons
using the Parking Area. Landlord shall keep the Parking Area in a neat, clean
and orderly condition, and shall repair any damage to its facilities. Landlord
shall not be liable for any damage to motor vehicle, of visitors or employees,
for any loss of property from within those motor vehicles, or for any injury to
Tenant, its visitors or employees, unless ultimately determined to be caused by
the negligence or willful misconduct of Landlord. Unless otherwise instructed by
Landlord, every xxxxxx shall park and lock his or her own motor vehicle.
Landlord shall also have the right to establish, and from time to time amend,
and to enforce against all users of the Parking Area all reasonable rules and
regulations (including the designation of areas for employee parking) as
Landlord may deem necessary and advisable for the proper and efficient operation
and maintenance of the Parking Area. Garage managers or attendants are not
authorized to make or allow any exceptions to these regulations.
2. Subject to Paragraph 7 below and Section 6.4 of the Lease, Landlord
may, if it deems advisable in its sole discretion, charge for parking and may
establish for the Parking Area a system or systems of permit parking for Tenant,
its employees and its visitors, which may include, but not be limited to, a
system of charges against nonvalidated parking, ventilation of users, a set of
regulations governing different parking locations, and an allotment of reserved
or nonreserved parking spaces based upon the charges paid and the identity of
users. In no event shall Tenant or its employees park in reserved stalls leased
to other tenants or in stalls within designated visitor parking zones. It is
understood that Landlord shall not have any obligation to cite improperly parked
vehicles or otherwise attempt to enforce reserved parking rules during hours
when parking attendants are not present at the Parking Area. Subject to
Paragraph 7 below and Section 6.4 of the Lease, Tenant shall comply with such
system in its use (and in the use of its visitors, patrons and employees of the
Parking Area, provided, however, that the system and rules and regulations shall
apply to all persons entitled to the use of the Parking Area, and all charges to
Tenant for use of the Parking Area shall be no greater than Landlords then
current scheduled charge for parking.
3. Tenant shall, upon request of Landlord from time to time, furnish
Landlord with a list of its employees' names and of Tenant's and its employees
vehicle license numbers. Tenant agrees to acquaint its employees with these
regulations and assumes responsibility for compliance by its employees with
these parking provisions, and shall be liable to Landlord for all unpaid parking
charges incurred by its employees. Any amount due from Tenant shall be deemed
additional rent. Tenant authorizes Landlord to tow away from the Building any
vehicle belonging to Tenant or Tenant's employees parked in violation of these
provisions, and/or to attach violation stickers or notices to those vehicles. In
the event Landlord elects or is required to limit or control parking by tenants,
employees, visitors or invitees of the Building, whether by validation of
parking tickets, parking meters or any other method of assessment, then subject
to Paragraph 7 below, Tenant agrees to participate in the validation or
assessment program under reasonable rules and regulations as are established by
Landlord and/or any applicable governmental agency.
4. Landlord may establish an identification system for vehicles of Tenant
and its employees which may consist of stickers, magnetic parking cards or other
identification devices supplied by Landlord. All identification devices shall
remain the property of Landlord, shall be displayed as required by Landlord or
upon request and may not be mutilated or obliterated in any manner. Those
devices shall not be transferable and any such device in the possession of an
unauthorized holder shall be void and may be confiscated. Landlord may impose a
reasonable fee for identification devices and a replacement charge for devices
which are lost or stolen. Each identification device shall be returned to
Landlord promptly following the Expiration Date or sooner termination of this
Lease. Loss or theft of parking identification devices shall be reported to
Landlord or its Parking Area operator immediately and a written report of the
loss filed if requested by Landlord or its Parking Area operator.
5. Persons using the Parking Area shall observe all directional signs and
arrows and any posted speed limits. Unless otherwise posted, in no event shall
the speed limit of 5 miles per hour be exceeded. All vehicles shall be parked
entirely within painted stalls, and no vehicles shall be parked in areas which
are posted or marked as "no parking" or on or in ramps, driveways and aisles.
Only one vehicle may be parked in a parking space. In no event shall Tenant
interfere with the use and enjoyment of the Parking Area by other tenants of the
Building or their employees or invitees.
6. Parking Areas shall be used only for parking vehicles. Washing, waxing,
cleaning or servicing of vehicles, or the parking of any vehicle on an overnight
basis, in the Parking Area (other than
1
emergency services) by any xxxxxx or his or her agents or employees is
prohibited unless otherwise authorized by Landlord. Tenant shall have no right
to install any fixtures, equipment or personal property (other than vehicles) in
the Parking Area, nor shall Tenant make any alteration to the Parking Area.
7. It is understood that the employees of Tenant and the other tenants of
Landlord within the Building and Project shall not be permitted to park their
automobiles in the portions of the Parking Area which may from time to time be
designated for patrons of the Building and/or Project and that Landlord shall at
all times have the right to establish rules and regulations for employee
parking. During the initial Term of this Lease and notwithstanding the foregoing
provisions hereof, Tenant shall not be required to pay any monthly stall charge
for the Allotted Stalls provided in connection with the initial Premises, nor
shall Tenant be required to pay for visitor parking. Thereafter, Tenant shall
pay to Landlord or its agents for the use of employee parking spaces the amounts
as Landlord shall from time to time determine. Landlord may authorize persons
other than those described above, including occupants of other buildings, to
utilize the Parking Area so long as sufficient parking remains for Tenant and
its employees. In the event of the use of the Parking Area by other persons,
those persons shall pay for that use in accordance with the terms established
above; provided, however, Landlord may allow those persons to use the Parking
Area on weekends, holidays, and at other non-office hours without payment.
8. Notwithstanding the foregoing paragraphs 1 through 7, Landlord shall be
entitled to pass on to Tenant its proportionate share of any charges or parking
surcharge or transportation management costs levied by any governmental agency.
The foregoing parking provisions are further subject to any governmental
regulations which limit parking or otherwise seek to encourage the use of
carpools, public transit or other alternative transportation forms or traffic
reduction programs. Tenant agrees that it will use its best efforts to
cooperate, including registration and attendance, in programs which may be
undertaken to reduce traffic. Tenant acknowledges that as a part of those
programs, it may be required to distribute employee transportation information,
participate in employee transportation surveys, allow employees to participate
in commuter activities, designate a liaison for commuter transportation
activities, distribute commuter information to all employees, and otherwise
participate in other programs or services initiated under a transportation
management program.
9. Should any parking spaces be allotted by Landlord to Tenant, either on
a reserved or nonreserved basis, Tenant shall not assign or sublet any of those
spaces, either voluntarily or by operation of law, without the prior written
consent of Landlord, except in connection with an authorized assignment of this
Lease or subletting of the Premises.
2
EXHIBIT D
TENANT'S INSURANCE
The following standards for Tenant's insurance shall be in effect at the
Building. Tenant agrees to obtain and present evidence to Landlord that it has
fully complied with the insurance requirements.
1. Tenant shall, at its sole cost and expense, commencing on the date
Tenant is given access to the Premises for any purpose and during the entire
Term, procure, pay for and keep in full force and effect: (i) commercial general
liability insurance with respect to the Premises and the operations of or on
behalf of Tenant in, on or about the Premises, including but not limited to
personal injury, blanket contractual, independent contractors, broad form
property damage, fire legal liability, liquor law liability (if alcoholic
beverages are sold, served or consumed within the Premises), and cross liability
and severability of interest clauses, which policy(ies) shall be written on an
"occurrence" basis and for not less than $2,000,000 combined single limit (with
a $50,000 minimum limit on fire legal liability) per occurrence for bodily
injury, death, and property damage liability, or the current limit of liability
carried by Tenant, whichever is greater; (ii) workers' compensation insurance
coverage as required by law, together with employers' liability insurance
coverage; (iii) with respect to improvements, alterations, and the like required
or permitted to be made by Tenant under this Lease, builder's all-risk
insurance, in amounts reasonably satisfactory to Landlord; (iv) insurance
against fire, vandalism, malicious mischief and such other additional perils as
may be included in a standard "all risk" form, insuring the leasehold
improvements, trade fixtures, furnishings, equipment and items of personal
property in the Premises, in an amount equal to not less than ninety percent
(90%) of their actual replacement cost (with replacement cost endorsement),
which policy shall also include loss of income/business interruption/extra
expense coverage in an amount not less than nine months loss of income from
Tenant's business in the Premises. In no event shall the limits of any policy be
considered as limiting the liability of Tenant under this Lease. Notwithstanding
the foregoing, Tenant may elect to self-insure its all-risk property insurance
coverage, provided that Landlord's rights are not thereby impaired; in such
event, for purposes of Section 10.4 of this Lease, Tenant shall be deemed to
have fully insured any property loss with waiver of subrogation against
Landlord.
2. All policies of insurance required to be carried by Tenant pursuant to
this Exhibit D shall be written by responsible insurance companies authorized to
do business in the State of California and with a Best's policyholder rating of
not less than "B++ VII" subject to final acceptance and approval by Landlord.
Any insurance required of Tenant may be furnished by Tenant under any blanket
policy carried by it or under a separate policy. A certificate of insurance,
certifying that the policy has been issued, provides the coverage required by
this Exhibit D and contains the required provisions, shall be delivered to
Landlord prior to the date Tenant is given the right of possession of the
Premises. Proper evidence of the renewal of any insurance coverage shall also be
delivered to Landlord prior to the expiration of the coverage.
3. Each policy evidencing insurance required to be carried by Tenant
pursuant to this Exhibit D shall contain the following provisions and/or clauses
satisfactory to Landlord: (i) a provision that the policy and the coverage
provided shall be primary and that any coverage carried by Landlord shall be
noncontributory with respect to any policies carried by Tenant; (ii) with
respect to Tenant's liability insurance coverage, a provision including Landlord
and any other parties in interest designated by Landlord as an additional
insured; (iii) a waiver by the insurer of any right to subrogation against
Landlord, its agents, employees, contractors and representatives which arises or
might arise by reason of any payment under the policy or by reason of any act or
omission of Landlord, its agents, employees, contractors or representatives; and
(iv) a provision that the insurer will not cancel or change the coverage
provided by the policy without first giving Landlord ten (10) days prior written
notice.
4. In the event that Tenant fails to procure (after the expiration of any
notice and cure period), maintain and/or pay for, at the times and for the
durations specified in this Exhibit D, any insurance required by this Exhibit D,
or fails to carry insurance required by any governmental authority, Landlord may
at its election procure that insurance and pay the premiums, in which event
Tenant shall repay Landlord all sums paid by Landlord, together with interest at
the rate of ten percent (10%) per annum and any related costs or expenses
incurred by Landlord, within ten (10) days following Landlord's written demand
to Tenant.
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EXHIBIT E
RULES AND REGULATIONS
The following Rules and Regulations shall be in effect at the Building.
Landlord reserves the right to adopt reasonable nondiscriminatory modifications
and additions at any time, provided that such modifications and additions do not
materially adversely affect Tenant's rights and obligations under the Lease. In
the case of any conflict between these regulations and the Lease, the Lease
shall be controlling. Landlord shall use reasonable efforts to cause the tenants
of the Project to comply with the Rules and Regulations; provided that Landlord
shall not thereby be compelled to initiate litigation proceedings unless
Landlord determines, in its sole discretion, that such proceedings are
warranted.
1. Except with the prior written consent of Landlord, Tenant shall not
sell, or permit the retail sale of, newspapers, magazines, periodicals, or
theater tickets, in or from the Premises, nor shall Tenant carry on, or permit
or allow any employee or other person to carry on, the business of stenography,
typewriting or any similar business in or from the Premises for the service or
accommodation of occupants of any other portion of the Building. Tenant shall
not allow the Premises to be utilized for any manufacturing of any kind, or the
business of a public xxxxxx shop, beauty parlor, or a manicuring and chiropodist
business, or any business other than that specifically provided for in the
Lease.
2. The sidewalks, halls, passages, elevators, stairways, and other common
areas shall not be obstructed by Tenant or used by it for storage or for any
purpose other than for ingress to and egress from the Premises. The halls,
passages, entrances, elevators, stairways, balconies and roof are not for the
use of the general public, and Landlord shall in all cases retain the right to
control and prevent access to those areas of all persons whose presence, in the
judgment of Landlord, shall be prejudicial to the safety, character, reputation
and interests of the Building and its tenants. Nothing contained in this Lease
shall be construed to prevent access to persons with whom Tenant normally deals
only for the purpose of conducting its business on the Premises (such as
clients, customers, office suppliers and equipment vendors and messengers and
the like) unless those persons are engaged in illegal activities. Neither Tenant
nor any employee or contractor of Tenant shall go upon the roof of the Building
without the prior written consent of Landlord, except to service any
antenna/satellite dish located thereon in accordance with a license granted by
Landlord.
3. The sashes, sash doors, windows, glass lights, solar film and/or
screen, 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. The toilet
rooms, water and wash closets and other water apparatus shall not be used for
any purpose other than that for which they were constructed, and no foreign
substance of any kind shall be thrown in those facilities, and the expense of
any breakage, stoppage or damage resulting from the violation of this rule shall
be borne by Tenant
4. No sign, advertisement or notice visible from the exterior of the
Premises shall be inscribed, painted or affixed by Tenant on any part of the
Building or the Premises without the prior written consent of Landlord. If
Landlord shall have given its consent at any time, whether before or after the
execution of this Lease, that consent shall in no way operate as a waiver or
release of any of the provisions of this Lease, and shall be deemed to relate
only to the particular sign, advertisement or notice so consented to by Landlord
and shall not be construed as dispensing with the necessity of obtaining the
specific written consent of Landlord with respect to any subsequent sign,
advertisement or notice. If Landlord, by a notice in writing to Tenant, shall
object to any curtain, blind, tinting, shade or screen attached to, or hung in,
or used in connection with, any window or door of the Premises, the use of that
curtain, blind, tinting, shade or screen shall be immediately discontinued and
removed by Tenant. No awnings shall be permitted on any part of the Premises.
5. Tenant shall not do or permit anything to be done in the Premises, or
bring or keep anything in the Premises, which shall in any way increase the rate
of fire insurance on the Building, or on the property kept in the Building, 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 portion of the
Building or its contents, or with any rules and ordinances established by the
Board of Health or other governmental authority.
6. The installation and location of any unusually heavy equipment in the
Premises, including without limitation file storage units, safes and electronic
data processing equipment, but exclusive of normal office photocopiers and other
equipment, shall require the prior written approval of Landlord. Landlord may
restrict the weight and position of any equipment that may exceed the weight
load limits for the structure of the Building, and may further require, at
Tenant's expense, the reinforcement of any flooring on which such equipment may
be placed and/or an engineering study to be performed to determine whether the
equipment may safely be installed in the Building and the necessity of any
reinforcement. The moving of large or heavy objects shall occur only between
those hours as may be designated by, and only upon previous written notice to,
Landlord, and the persons employed to move those objects in or out of the
Building must be reasonably acceptable to Landlord. No freight, furniture or
bulky matter of any description shall be received into or moved out of the lobby
of the Building or carried in any elevator other than the freight elevator
designated by Landlord unless approved in writing by Landlord.
7. Landlord shall clean the Premises as provided in the Lease, and, except
with the written consent of Landlord, no person or persons other than those
approved by Landlord will be permitted to enter the Building for that purpose.
Tenant shall not cause unnecessary labor by reason of Tenant's carelessness and
indifference in the preservation of good order and cleanliness.
1
8. Tenant shall not sweep or throw, or permit to be swept or thrown, from
the Premises any dirt or other substance into any of the corridors or halls or
elevators, or out of the doors or windows or stairways of the Building, and
Tenant shall not use, keep or permit to be used or kept any foul or noxious gas
or substance in the Premises, or permit or suffer 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 and/or vibrations, or interfere in any
way with other tenants or those having business with other tenants, nor shall
any animals or birds be kept by Tenant in or about the Building. Smoking or
carrying of lighted cigars, cigarettes, pipes or similar products anywhere
within the elevators, restrooms, common corridors, lobbies or other common areas
of the Building is strictly prohibited. Any such activity within the Premises
shall, until further notice, be permitted only absent written notification to
Landlord from another tenant of the Building that such activity is creating
fumes or odors that are offensive or objectionable; in the event such notice is
given to Landlord, Landlord may prohibit smoking within the Premises and may
enforce such prohibition pursuant to Landlord's leasehold remedies. Smoking is
permitted outside the Building and within the project only in areas designated
by Landlord.
9. No cooking shall be done or permitted by Tenant on the Premises, except
pursuant to the normal use of a U.L. approved microwave oven and coffee maker
for the benefit of Tenant's employees and invitees, nor shall the Premises be
used for the storage of merchandise or for lodging.
10. Except for supplies and cleaning materials used by typical office
tenants, Tenant shall not use or keep in the Building any kerosene, gasoline, or
inflammable fluid or any other illuminating material, or use any method of
heating other than that supplied by Landlord or reasonably approved by Landlord.
11. No boring or cutting for wires or otherwise shall be made without
directions from Landlord.
12. Upon the termination of its tenancy, Tenant shall deliver to Landlord
all the keys to offices, rooms and toilet rooms and all access cards which shall
have been furnished to Tenant or which Tenant shall have had made.
13. Tenant shall not xxxx, drive nails, screw or drill into the
partitions, woodwork or plaster or in any way deface the Premises, except to
install normal wall hangings. Tenant shall not affix any floor covering to the
floor of the Premises in any manner except by a paste, or other material which
may easily be removed with water, the use of cement or other similar adhesive
materials being expressly prohibited. The method of affixing any floor covering
shall be subject to approval by Landlord. The expense of repairing any damage
resulting from a violation of this rule shall be borne by Tenant
14. On Saturdays, Sundays and legal holidays, and on other days between
the hours of 6:00 p.m. and 8:00 a.m., access to the Building, or to the halls,
corridors, elevator or stairways in the Building, or to the Premises, may be
refused unless the person seeking access complies with any access control system
that Landlord may establish. Landlord shall in no case be liable for damages for
the admission to or exclusion from the Building of any person whom Landlord has
the right to exclude under Rules 2 or 18 of this Exhibit. In case of invasion,
mob, riot, public excitement, or other commotion, or in the event of any other
situation reasonably requiring the evacuation of the Building, Landlord reserves
the right at its election and without liability to Tenant to prevent access to
the Building by closing the doors or otherwise, for the safety of the tenants
and protection of property in the Building.
15. Tenant shall be responsible for protecting the Premises from theft,
which includes keeping doors and other means of entry closed and securely
locked. Tenant shall cause all water faucets or water apparatus to be shut off
before Tenant or Tenant's employees leave the Building, and that all
electricity, gas or air shall likewise be shut off, so as to prevent waste or
damage. The foregoing shall not relieve Landlord of the responsibility of
maintaining the access control systems for the Building.
16. Tenant shall not alter any lock or install a new or additional lock or
any bolt on any door of the Premises without the prior written consent of
Landlord. If Landlord gives its consent, Tenant shall in each case promptly
furnish Landlord with a key for any new or altered lock.
17. Tenant shall not install equipment, such as but not limited to
electronic tabulating or computer equipment, requiring electrical or air
conditioning service in excess of that to be provided by Landlord under the
Lease except in accordance with Exhibit B; provided, however, that Tenant may
install such equipment if necessary for the operation of its business so long as
Tenant funds to Landlord the cost of any necessary upgrades to the systems and
equipment of the Building.
18. Landlord shall have full and absolute authority to regulate or
prohibit the entrance to the Premises by any vendor, supplier, purveyor,
petitioner, proselytizer or other similar person. In the event any such person
is a guest or invitee of Tenant, Tenant shall notify Landlord in advance of each
desired entry, and Landlord shall authorize the person so designated to enter
the Premises, provided that such person will not be involved in general
solicitation activities, or the proselytizing, petitioning, or disturbance of
other tenants or their customers or invitees, or engaged or likely to engage in
conduct which may in Landlord's reasonable opinion distract from the use of the
Premises for its intended purpose. Notwithstanding the foregoing, Landlord
reserves the absolute right and discretion to limit or prevent access to the
Buildings by any food or beverage vendor, except to the extent specifically
invited by Tenant to the Premises, and Landlord may condition such access upon
the vendor's execution of an entry permit agreement which may contain provisions
for insurance coverage.
19. Tenant shall be required to utilize the third party contractor
designated by Landlord for the Building to provide any telephone wiring services
from the minimum point of entry of the telephone cable in the Building to the
Premises. Notwithstanding the foregoing, however, in the event Tenant does not
have
2
a telephone switch within the Premises, Tenant may, with Landlord's approval and
supervision, use a trained contractor to provide such wiring services, but only
from the Premises to the telephone room on the floor on which the Premises are
situated.
20. Landlord may from time to time grant tenants individual and temporary
variances from these Rules, provided that any variance does not have a material
adverse effect on the use and enjoyment of the Premises by Tenant.
3
EXHIBIT X
WORK LETTER
-----------
I. LANDLORD'S WORK
---------------
Landlord shall, at its expense, complete all base building work in
substantial accordance with the plans and specifications described in
Exhibit X-1 hereto (the "Landlord's Work").
II. TENANT IMPROVEMENTS
-------------------
The tenant improvement work ("Tenant Improvements") shall consist of any
work, exclusive of the Landlord's Work specified in Article I above,
required to complete the Premises pursuant to plans and specifications
approved by both Landlord and Tenant. Tenant shall employ its own
architect (Gensler) and general contractor in constructing the tenant
improvements. The general contractor shall be selected by Tenant on the
basis of a competitive bid involving general contractors approved in
advance in writing by Landlord; provided that such bidders shall include
Turelk Inc. The work shall be undertaken and prosecuted in accordance with
the following requirements:
A. Concurrently with sign-off by Tenant, the space plans, construction
drawings and specifications for all improvements and finishes,
together with any changes thereto, shall be submitted to Landlord
(with samples as required) for review by Landlord and its architect
for the Protect.
B. Landlord shall, subject to the foregoing, approve or disapprove any
submittal of plans or specifications, or requests for changes
thereto, by Tenant within five (5) business days following receipt
thereof by Landlord. Landlord's failure to respond within that
period shall be deemed a "Landlord Delay" for purposes of this Lease
if and to the extent the completion of the Tenant Improvements is
delayed as a result thereof. In lieu of disapproving an item,
Landlord may approve same on the condition that Tenant pay to
Landlord, not later than four (4) months prior to the expiration or
termination of this Lease and in addition to all sums otherwise due
hereunder, an amount equal to the cost, as reasonably estimated by
Landlord, of removing and replacing the item upon the expiration or
termination of the Lease. Should Landlord approve work that would
necessitate any ancillary Building modification or other expenditure
by Landlord, then except to the extent of any remaining balance of
the "Landlord's Contribution" as described below, Tenant shall, in
addition to its other obligations herein, promptly fund the cost
thereof to Landlord.
C. Tenant shall use the electrical, mechanical, plumbing and fire/life
safety engineers and subcontractors designated by Landlord, provided
that their charges are generally competitive with those of other
contractors with similar qualifications and experience. All other
subcontractors shall be subject to Landlord's reasonable approval,
and Landlord may require that one or more designated subtrades be
union contractors.
D. Tenant shall deliver to Landlord a copy of the final application for
permit and issued permit for the construction work.
E. Tenant's general contractor and each of its subcontractors shall
comply with Landlord's requirements as generally imposed on third
party contractors, including without limitation all insurance
coverage requirements and the obligation to furnish appropriate
certificates of insurance to Landlord prior to commencement of
construction.
F. A construction schedule shall be provided to Landlord prior to
commencement of the construction work, and periodic updates shall be
supplied during the progress of the work.
G. Tenant shall give Landlord ten (10) days prior written notice of the
commencement of construction so that Landlord may cause an
appropriate notice of non-responsibility to be posted.
H. Tenant and its general contractor shall attend weekly job meetings
with Landlord's construction manager for the Project.
I. Upon completion of the work, Tenant shall cause to be provided to
Landlord (i) record drawings of the Premises signed by Tenants
architect, (ii) CADD tapes of the improved space compatible with
Landlord's CADD system, (iii) a final punchlist signed by Tenant,
(iv) final and unconditional lien waivers from all contractors and
subcontractors, (v) a duly recorded Notice of Completion of the
improvement work, and (vi) a certificate of occupancy for the
Premises (collectively, the "Close-out Package").
1
J. The work shall be prosecuted at all times in accordance with all
state, federal and local laws, regulations and ordinances, including
without limitation all OSHA and other safety laws.
K. All of the provisions of this Lease shall apply to any activity of
Tenant, its agents and contractors, in the Premises prior to the
Commencement Date, except for the obligation of Tenant to pay rent.
L. Landlord shall permit Tenant and its contractors to enter the
Premises forty-five (45) days prior to the Shell Completion Date in
order that Tenant may commence the Tenant Improvements. Such early
entry by Tenant is, however, conditioned upon Tenant's contractors
and their subcontractors and employees working in harmony and not
interfering with the work being performed by Landlord. That license
is further conditioned upon the compliance by Tenants contractors
with all requirements imposed by Landlord on third party contractors
and subcontractors, including without limitation the maintenance by
Tenant and its contractors and subcontractors of workers'
compensation and public liability and property damage insurance in
amounts and with companies and on forms satisfactory to Landlord,
with certificates of such insurance being furnished to Landlord
prior to proceeding with any such entry. The entry shall be deemed
to be under all of the provisions of the Lease except as to the
covenants to pay rent.
M. In addition to the event of Landlord Delay described in Paragraph B
above, any interference by Landlord with the construction by Tenants
contractors of the Tenant improvements, whether during the
forty-five (45) day early access period described above or
thereafter, shall be deemed a "Landlord Delay" for purposes of this
Lease if Tenant promptly notifies Landlord of the interference and
if and to the extent such interference actually and necessarily
delays, on a critical path basis, the completion of the Tenant
Improvements.
Except to the extent caused by Landlords negligence or willful misconduct,
Landlord shall not be liable in any way for any injury, loss or damage
which may occur to any work performed by Tenant, nor shall Landlord be
responsible for repairing any defective condition therein. Except as
provided in Article III of the Lease, in no event shall Tenant's failure
to complete the Tenant Improvements extend the Commencement Date of the
Lease.
III. COST OF THE WORK
----------------
A. Landlord shall provide to Tenant a tenant improvement allowance in
the amount of Twenty-Four Dollars and Fifteen Cents per usable
square foot of the initial Premises (the "Landlord's Contribution").
Subject to the provisions below, any excess cost shall be borne
solely by Tenant. The Landlords Contribution shall be utilized to
fund space planning and other architectural costs (including the
reasonable cost charged by Landlord's architect to review Tenant's
submittals), construction costs and plan check and permit fees. It
is understood that Landlord's management agent for the Project shall
be entitled to a supervision/ administrative fee equal to three
percent (3%) of such costs, which fee shall be paid from the
Landlords Contribution.
B. If the actual cost of completion of the Tenant Improvements is less
than the maximum amount provided for the Landlords Contribution,
such savings (up to a maximum of Four Dollars ($4.00) per usable
square foot of the Premises) shall be applied as a credit against
the Basic Rent payable for the initial Lease Term. Such credit shall
be in the amount of Eighteen Dollars and Thirty-Four Cents ($18.34)
per month for each One Thousand Dollars ($1,000) of savings, with
any portion thereof appropriately prorated. Any savings in excess of
the maximum amount described above shall inure solely to the benefit
of Landlord. The amount of the monthly credit shall, if applicable,
be memorialized on a form provided by Landlord.
C. Landlord shall fund the Landlords Contribution (less deductions for
the above-described supervision fee and charges of Landlords
architect) in installments as and when costs are incurred and a
payment request therefor as submitted by Tenant, which payment
requests shall be submitted not more frequently than once per month.
Each payment request shall include a copy of all [ILLEGIBLE]
invoices, lien waivers (in the form prescribed by the California
Civil Code, and pertinent back-up. It is understood that such lien
waivers may be conditional until final payment is made. Landlord
shall fund the payment request within thirty (30) days following
receipt of the application and supporting materials provided that a
ten percent (10%) retention shall be held on payments to Tenant
until Landlord receives the complete Close-out Package. The
remaining balance of the Landlord's Contribution shall be funded
when Landlord receives the complete Close-out Package.
D. In addition to the foregoing, Landlord shall advance to Tenant, at
Tenant's written request, the cost of other tenant improvement work
in the Premises, but exclusive of furniture, furnishings and
removable personal property, up to a maximum of Five Dollars per
usable square foot of the initial Premises and the Must Take Space
(the "Advance")
2
The Advance shall be deemed a loan to Tenant and shall bear interest
at the rate of ten percent (10%) per annum and shall be repaid by
Tenant as additional rent in equal fully-amortized monthly
installments on the first day of each month during the initial sixty
(60) months of the Term of this Lease. The amount of the Advance, if
any, and the monthly amortization amount shall be memorialized by
the parties on a form provided by Landlord. Should this Lease
terminate prior to the date the Advance is repaid in full, all
unpaid principal and interest shall be immediately due and payable.
IV. WARRANTIES
----------
Each party agrees to cooperate with the other party in enforcing and/or
assigning any warranties that would benefit such other party in fulfilling
its repair and maintenance obligations under this Lease.
3
EXHIBIT X-1
CORPORATE PLAZA WEST, PHASE I PROJECT
NEWPORT BEACH, CA
DRAWING LIST
In accordance with Drawings us prepared by the following:
ARCHITECT: McLarand, Xxxxxxx & Partners, Inc.
Architecture & Planning
000 Xxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
CIVIL ENGINEERS: The Xxxxx Companies
0000 Xxx Xxxx Xxxxxx
Xxxxx Xxxx, XX 00000
STRUCTURAL ENGINEERS: Xxxx & Xxxxxx
00000 Xxxxxxxx Xxxxx
Xx Xxxx, XX 00000
MECHANICAL & PLUMBING
ENGINEERS: Xxxxxxxxxx & Kaino
00000 Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
ELECTRICAL ENGINEER: R.E. Wall & Associates
0000-X Xxxxxx Xxx.
Xxxxxx, XX 00000-0000
LANDSCAPE ARCHITECT: Xxxxxx Associates
00000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
GEOTECHNICAL ENGINEER: NMG Geotechnical
00000 Xxxxxxxx, Xxxxx X
Xxxxxx, XX 00000
CIVIL
--------------------------------------------------------------------------------
DRAWING NO. TITLE DATE
G-0.00 Cover Sheet Building W1 & W2 ----
Sheet 1 of 1 Conceptual Grading Plan ----
C1 of 11 Precise Grading Plan - Addendum G 6/15/98
C2 of 11 Precise Grading Plan - Addendum E 4/21/98
C3 of 11 Precise Grading Plan - Addendum G 6/15/98
C4 of 11 Precise Grading Plan - Addendum G [ILLEGIBLE]15/98
C5 of 11 Storm Drain - Addendum G [ILLEGIBLE]5/98
C6 of 11 Storm Drain (Low Flow) - Addendum E 4/21/98
C7 of 11 Erosion Control Plan - Addendum E 4/21/98
C8 of 11 Horizontal Control Plan- Addendum E 4/21/98
C9 of 11 Signing and Striping Plan - Addendum G 6/15/98
C10 of 11 Construction Details - Addendum E 4/21/98
C11 of 11 Wall Profiles and Details - Addendum E 4/21/98
Sheet 1 of 11 Corporate Plaza West Improvement Plan -
Addendum G 6/15/98
Sheet 2 of 11 Corporate Plaza West Improvement Plan - Water -
Addendum G 6/15/98
Page 1 7/13/98
CORPORATE PLAZA WEST, PHASE 1 PROJECT
NEWPORT BEACH, CA
DRAWING LIST
DRAWING NO. TITLE DATE
Sheet 3 of 11 Corporate Plaza West Improvement Plan - Sewer - Addendum E 4/21/98
Sheet 4 of 11 Corporate Plaza West Improvement Plan - E.C.H. Sewer 4/21/98
Connection - Addendum E
Sheet 5 of 11 Corporate Plaza West Improvement Plan - N.C.D. Median 6/15/98
Modification - Addendum G
Sheet 6 of 11 Corporate Plaza West Improvement Plan - Traffic Control for 6/15/98
N.C.D. Median - Addendum G
Sheet 7 of 11 Corporate Plaza West Improvement Plan - Traffic Control for 4/21/98
N.C.D. Median - Addendum E
Sheet 8 of 11 Corporate Plaza West Improvement Plan - Traffic Control for 4/21/98
Water NCD Phase I - Addendum E
Sheet 9 of 11 Corporate Plaza West Improvement Plan - Traffic Control for 4/21/98
Water - N.C.D. - Phase II - Addendum E
Sheet 10 of 11 Corporate Plaza West Improvement Plan - Traffic Control for 4/21/98
Sewer at E.C.H. - Addendum E
Sheet 11 of 11 Corporate Plaza West Improvement Plan - Traffic Control for 4/21/98
Water at E.C.H. - Addendum E
GENERAL INFORMATION
---------------------------------------------------------------------------------------
DRAWING NO. TITLE DATE
G-0.01 General Notes Building W1 & W2 - Addendum E 4/21/98
G-0.02 General Notes Building W1 & W2 1/29/98
G-0.03 Area Entitle & Parking Requirement Calc. Building W1 & W2 1/29/98
G-0.04 Exit Plan/Building Height Compliance Building W1 & W2 - 4/21/98
Addendum E
ARCHITECTURAL
---------------------------------------------------------------------------------------
DRAWING NO. TITLE DATE
A-0.01 Site Plan Building W1 & W2 - Addendum E 4/21/98
A-1.01 Level One Floor Plan Building W1 - Addendum E 4/21/98
A-1.02 Level Two Floor Plan Building W1 1/29/98
A-1.03 Roof Plan Building W1 l/29/98
A-1.11 Level Xxx Xxxxx Xxxx Xxxxxxxx X0 - Xxxxxxxx X 4/21/98
A-1.12 Level Two Floor Plan Building W2 1/29/98
A-1.13 Roof Plan Building W2 1/29/98
A-2.01 Exterior Elevation Building W1 1/29/98
A-2.02 Exterior Elevation Building W1 1/29/98
X-0.00 Xxxxxxxx Xxxxxxxx Xxxxxxxx X0 & W2 1/29/98
A-2.11 Exterior Elevation Building W2 1/29/98
A-2.12 Exterior Elevations Building W1 1/29/98
X-0.00 Xxxxxxxx Xxxxxxxx Xxxxxxxx X0 and W2 1/29/98
A-2.20 Enlarged Elevation, Precast Detail Building 1 & 2 1/29/98
A-2.21 Precast Details Building W1 and W2 1/29/98
A-2.22 Precast Details Building W1 and W2 - Addendum D 3/18/98
A-2.23 Precast Detail Building I - Addendum D 3/18/98
X-0.00 Xxxxx Xxxx Xxxxx Xxx Xxxxxxxx X0 - Addendum E 4/21/98
X.0.00 Xxxxx Xxxx Xxxxx Xxx Xxxxxxxx X0 - Addendum E 4/21/98
A-4.11 Floor Plan Level One Building W2 - Addendum E 4/21/98
X-0.00 Xxxxx Xxxx Xxxxx Xxx Xxxxxxxx X0 - Addendum E 4/21/98
Page 2 7/13/98
CORPORATE PLAZA WEST, PHASE 1 PROJECT
NEWPORT BEACH, CA
DRAWING LIST
DRAWING NO. TITLE DATE
A-4.21 Paving Plan Level One Building W1 1/29/98
A-4.22 Paving Plan Level Two Building W1 - Addendum E 4/21/98
A-4.31 Paving Plan Level One Building W2 1/29/98
A-4.32 Paving Plan Level Two Building W2 - Addendum E 4/21/98
A-04.41 Ceiling Plan Level One Building W1 1/29/98
X-0.00 Xxxxxxx Xxxx Xxxxx Xxx Xxxxxxxx X0 - Addendum E 4/21/98
A-4.51 Ceiling Plan Level One Building W2 1/29/98
X-0.00 Xxxxxxx Xxxx Xxxxx Xxx Xxxxxxxx X0 - Addendum E 4/21/98
A-4.61 Stair Sections Building W1 - Addendum E 4/21/98
A-4.91 Stair Details Building 1 & 2 - Addendum E 4/21/98
A-4.92 Stair Details Building 1 & 2 1/29/98
A-5.01 Interior Elevations Building W1 & W2 1/29/98
A-5.02 Interior Elevations Building W1 & W2 1/29/98
A-6.01 Wall Types Building W1 & W2 1/29/98
A-6.02 Details Building W1 & W2 1/29/98
A-6.06 Interior Finish Schedule Building W1 1/29/98
A-6.07 Interior Finish Schedule Building W2 1/29/98
A-6.11 Interior Details Building W1 & W2 1/29/98
A-6.12 Interior Details Building W1 & W2 - Addendum E 4/21/98
A-6.13 Title 24 Accessibility Compliance Building 1 & 2 1/29/98
A-6.20 Door Schedule Building 1 - Addendum E 4/21/98
A-6.21 Door Schedule Building 2 - Addendum E 4/21/98
A-6.31 Details Xxxxxxxx 0 & 0 - Xxxxxxxx X 3/18/98
A-7.01 Misc. Details - Addendum D 3/18/98
A-7.02 Trash Enclosure Building W1 & W2 - Addendum E 4/21/98
A-7.03 Misc. Details Building W1 and W2 - Addendum D 3/18/98
STRUCTURAL
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DRAWING NO. TITLE DATE
S-0.01 General Notes - Addendum F 6/05/98
S-1.01 Foundation Plan Building W1 - Addendum E 4/21/98
S-1.02 Floor Framing Plan Level 2 Building W1 - Addendum F 6/05/98
S-1.03 Roof Framing Plan Building W1 - Addendum F 6/05/98
S-1.11 Foundation Plan Building W2 - Addendum E 4/21/98
S-1.12 Floor Framing Plan Level 2 Building - Addendum F 6/05/98
S-1.13 Roof Framing Plan Building W2 - Addendum F 6/05/98
S-2.01 Frame Elevations 1/29/98
S-4.10 Details 1/29/98
S-5.10 Details 1/29/98
S-5.11 Details - Addendum E 4/21/98
S-5.12 Details - Addendum E 4/21/98
S-6.10 Typical Deck Details 1/29/98
MECHANICAL
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DRAWING NO. TITLE DATE
M0.1 Legend and Schedules Buildings W1 & W2 1/29/98
M0.2 Compliance Forms building W1 & W2 1/29/98
M1.00 Site Plan Buildings W1 & W2 - Addendum E 4/21/98
X-0.00 Xxxxxxxxxx Xxxxx Xxxx Xxxxx 0 Xxxxxxxx X0 1/29/98
X-0.00 Xxxxxxxxxx Xxxxx Xxxx Xxxxx 0 Xxxxxxxx X0 1/29/98
M-1.03 Mechanical Roof Plan Building W1 1/29/98
Page 3 7/13/98
CORPORATE PLAZA WEST, PHASE 1 PROJECT
NEWPORT BEACH, CA
DRAWING LIST
DRAWING NO. TITLE DATE
X-0.00 Xxxxxxxxxx Xxxxx Xxxx Xxxxx 0 Xxxxxxxx X0 1/29/98
X-0.00 Xxxxxxxxxx Xxxxx Xxxx Xxxxx 0 Xxxxxxxx X0 1/29/98
M-1.06 Mechanical Roof Plan Building W2 1/29/98
M-3.01 Sections and Details Building W1 & W2 - Addendum E 4/21/98
M-3.02 Sections and Details Building W1 & W2 - Addendum E 4/21/98
M-5.01 Details Building W1 & W2 1/29/98
M-6.01 Wiring and Controls Building W1 & W2 - Addendum E 4/21/98
PLUMBING
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DRAWING NO. TITLE DATE
X-0.00 Xxxx Xxxx Xxxxxxxx X0 - Addendum E 4/21/98
P-0.02 Legend, Schedules & Notes Building W1 & W2 - Addendum E 4/21/98
X-0.00 Xxxxx Xxx Xxxxx Xxxx Xxxxxxxx X0 - Addendum E 4/21/98
X-0.00 Xxxxx Xxx Xxxxx Xxxx Xxxxxxxx X0 - Addendum E 4/21/98
P-1.03 Roof Plan Building W1 - Addendum E 4/21/98
X-0.00 Xxxxx Xxx Xxxxx Xxxx Xxxxxxxx X0 - Addendum E 4/21/98
X-0.00 Xxxxx Xxx Xxxxx Xxxx Xxxxxxxx X0 - Addendum E 4/21/98
P-1.06 Partial Plans Building W1 - Addendum E 4/21/98
P-3.01 Enlarged Plans Building W1 - Addendum E 4/21/98
P-3.02 Enlarged Plans Building W2 - Addendum E 4/21/98
P-4.01 Diagrams Building 1 - Addendum E 4/21/98
P-4.02 Diagrams Building 2 - Addendum E 4/21/98
P-5.01 Details Building W1 & W2 - Addendum E 4/21/98
ELECTRICAL
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DRAWING NO. TITLE DATE
E0.1 Now Sheet Building W1 & W2 4/23/98
E0.2 Project Note Sheet Building W1 & W2 4/23/98
E0.3 Fire Alarm Specifications Building W1 & W2 4/23/98
E1.0 Single Line Diagram Building W1 4/23/98
E1.1 Panel Schedules Building W1 & W2 - Addendum E 4/23/98
E2.0 Utility Site Plan Building W1 & W2 4/23/98
E2.1 Lighting Xxxx Xxxx Xxxxxxxx X0 & X0 - Xxxxxxxx X 7/07/98
E2.2 Photometric Site Plan - Addendum H 7/07/98
E3.0 1st. Floor Lighting & Power Plan Building W1 - Addendum E 4/23/98
E3.1 2nd. Floor Lighting & Power Plan Building W1 - Addendum E 4/23/98
E3.2 Roof Plan Building W1 4/23/98
E4.0 1st. Floor Lighting & Power Plan - Addendum E 4/23/98
E4.1 2nd. Floor Lighting & Power Plan 4/23/98
E4.2 Roof Plan Building W2 4/23/98
E5.0 Title 24 Calculations Building 1 & 2 - Addendum H 7/07/98
LANDSCAPE
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DRAWING NO. TITLE DATE
LT-1 Title Sheet - Addendum E 4/21/98
LC-1 Construction Layout Plan - Addendum E 4/21/98
LC-2 Landscape Construction Details - Addendum E 4/21/98
LC-3 Landscape Construction Plan - Addendum E 4/21/98
LC-4 Landscape Construction Details - Addendum C 2/23/98
LC-5 Landscape Construction Specifications - Addendum C 2/23/98
LI-1 Landscape Irrigation Plan - Addendum E 4/21/98
Page 4 7/13/98
CORPORATE PLAZA WEST, PHASE 1 PROJECT
NEWPORT BEACH, CA
DRAWING LIST
DRAWING NO. TITLE DATE
LI-2 Landscape Irrigation Plan - Addendum C 2/23/98
LI-3 Landscape Irrigation Plan - Addendum C 2/23/98
LI-4 Landscape Irrigation Plan - Addendum C 2/23/98
LI-5 Landscape Irrigation Legend - Addendum C 2/23/98
LI-6 Landscape Irrigation Specifications - Addendum C 2/23/98
LTP-1 Landscape Planting Plan - Addendum E 4/21/98
LTP-2 Landscape Planting Plan - Addendum C 2/23/98
LTP-3 Landscape Planting Plan - Addendum C 2/23/98
LSP-1 Landscape Shrub Planting Plan - Addendum E 4/21/98
LSP-2 Landscape Shrub Planting Plan - Addendum C 2/23/98
LSP-3 Landscape Shrub Planting Plan - Addendum C 2/23/98
LP-4 Landscape Planting Details & Legend - Addendum C 2/23/98
LP-5 Landscape Planting Specifications - Addendum C 2/23/98
LP-6 Landscape Planting Specifications - Addendum C 2/23/98
Addendum's:
Addendum C, dated 2/25/98
Addendum D, dated 3/18/98
Addendum E, dated 4/21/98
Addendum F, dated 6/5/98
Addendum G, dated 6/15/98
Addendum H, dated 7/07/98
Preliminary Geotechnical Investigation for the Proposed Corporate Plaza West,
-----------------------------------------------------------------------------
Phase 1
-------
as prepared by NMG Geotechnical Inc., dated 12/29/97, dated 02/23/98, dated
05/22/98, dated 06/15/98.
Project Manual by McLarand Xxxxxxx & Partners, Inc. Dated January 8, 1998.
[ILLEGIBLE INITIALS]
Page 5 7/13/98
