7151 Gateway Blvd. (Newark, CA) Lease Agreement – WHLNF Real Estate LP and InVision Technologies Inc.
LEASE AGREEMENT
(NNN R&D)
Basic Lease Information
Lease Date: February 11, 1997
Landlord: WHLNF REAL ESTATE LIMITED PARTNERSHIP, a Delaware
limited partnership
Landlord's Address: c/o Lincoln Property Company Management Services,
Inc.
101 Lincoln Centre Drive, Fourth Floor
Foster City, California 94404-1167
Tenant: InVision Technologies, Inc., a Delaware
corporation
Tenant's Address: 7151 Gateway Boulevard
Newark, California 94560
Premises: Approximately 95,245 rentable square feet as shown
on Exhibit A
Premises Address: 7151 Gateway Boulevard
Newark, California 94560
Building II: Approximately 95,245 rentable square feet
Lot (Building's tax parcel): 092A-2500-006, 537-0460-021,537-0460-022,
537-0460-023, 537-0460-024 and 537-0460-025
Park: Lincoln Bridgeway
Technology Center: Approximately 170,675 rentable square feet
Term: May 20, 1997 ("Commencement Date"), through
May 19, 2007 ("Expiration Date")
Base Rent (Section 3): Zero Dollars ($0.00) per month. (Months 1-2)
Adjustments to Base Rent: July 20, 1997 $50,151.00 (Months 3-4)
Sept. 20, 1997 $71,433.75 (Months 5-12)
May 20, 1998 $80,958.25 (Months 13-24)
May 20, 1999 $83,815.60 (Months 25-36)
May 20, 2000 $87,625.40 (Months 37-48)
May 20, 2001 $91,435.20 (Months 49-60)
May 20, 2002 $95,245.00 (Months 61-72)
May 20, 2003 $99,054.80 (Months 73-84)
May 20, 2004 $102,864.60 (Months 85-96)
May 20, 2005 $106,674.40 (Months 97-108)
May 20, 2006 $110,484.20 (Months 109-120)
Security Deposit
(Section 4): One hundred ten thousand four hundred eighty-four
and 00/100 Dollars($I 10,484.00) ("First Security
Deposit"), plus a eighthundred thousand and 00/100
Dollars ($800,000.00) standby Letter of Credit
("Second Security Deposit").
*Tenant's Share of Operating Expenses (Section 6.1): 55.81% of the Park
*Tenant's Share of Tax Expenses (Section 6.2): 55.81% of the Lot
*Tenant's Share of Common Area Utility Costs (Section 7): 55.81% of the Park
*Tenant's Share of Utility Expenses (Section 7): 55.81% of the Park
*The amount of Tenant's Share of the expenses as referenced above shall be
subject to modification as set forth
in this Lease.
Permitted Uses (Section 9): General office use, research and development,
light assembly, distribution and storage of
explosive devices and other associated uses for
aviation security products, but only to the extent
permitted by the City of Newark and all agencies
and governmental authorities having jurisdiction
thereof.
Unreserved
Parking Spaces: Three hundred thirty-three (333) nonexclusive and
undesignated spaces
Broker (Section 38): Cornish & Carey for Tenant
Bishop Hawk for Landlord
Exhibits: EXHIBIT A - PREMISES, BUILDING, LOT AND/OR PARK
EXHIBIT B - TENANT IMPROVEMENTS
EXHIBIT C - RULES AND REGULATIONS
EXHIBIT D - COVENANTS, CONDITIONS AND RESTRICTIONS
(INTENTIONALLY OMITTED)
EXHIBIT E - HAZARDOUS MATERIALS DISCLOSURE
CERTIFICATE - EXAMPLE
EXHIBIT F - CHANGE OF COMMENCEMENT DATE - EXAMPLE
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EXHIBIT G - TENANT'S INITIAL HAZARDOUS MATERIALS
DISCLOSURE CERTIFICATE
EXHIBIT H - SIGN CRITERIA (INTENTIONALLY OMITTED)
Addenda: ADDENDUM 1: OPTION TO EXTEND
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TABLE OF CONTENTS
SECTION PAGE
------- ----
1. PREMISES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2. ADJUSTMENT OF COMMENCEMENT DATE; CONDITION OF THE PREMISES . . . . 4
3. RENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4. SECURITY DEPOSIT. . . . . . . . . . . . . . . . . . . . . . . . . . 5
5. TENANT IMPROVEMENTS . . . . . . . . . . . . . . . . . . . . . . . . 6
6. ADDITIONAL RENT . . . . . . . . . . . . . . . . . . . . . . . . . . 7
7. UTILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
8. LATE CHARGES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
9. USE OF PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . .10
10. ALTERATIONS AND ADDITIONS AND SURRENDER OF PREMISES . . . . . . . .11
11. REPAIRS AND MAINTENANCE . . . . . . . . . . . . . . . . . . . . . .11
12. INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
13. WAIVER OF SUBROGATION . . . . . . . . . . . . . . . . . . . . . . .14
14. LIMITATION OF LIABILITY AND INDEMNITY . . . . . . . . . . . . . . .14
15. ASSIGNMENT AND SUBLEASING . . . . . . . . . . . . . . . . . . . . .14
16. AD VALOREM TAXES. . . . . . . . . . . . . . . . . . . . . . . . . .16
17. SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . . . . .16
18. RIGHT OF ENTRY. . . . . . . . . . . . . . . . . . . . . . . . . . .16
19. ESTOPPEL CERTIFICATE. . . . . . . . . . . . . . . . . . . . . . . .16
20. TENANT'S DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . . .17
21. REMEDIES FOR TENANT'S DEFAULT . . . . . . . . . . . . . . . . . . .17
22. HOLDING OVER. . . . . . . . . . . . . . . . . . . . . . . . . . . .18
23. LANDLORD'S DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . .18
24. PARKING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
25. SALE OF PREMISES. . . . . . . . . . . . . . . . . . . . . . . . . .19
26. WAIVER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
27. CASUALTY DAMAGE . . . . . . . . . . . . . . . . . . . . . . . . . .19
28. CONDEMNATION. . . . . . . . . . . . . . . . . . . . . . . . . . . .20
29. ENVIRONMENTAL MATTERS/HAZARDOUS MATERIALS . . . . . . . . . . . . .20
30. FINANCIAL STATEMENTS. . . . . . . . . . . . . . . . . . . . . . . .22
31. GENERAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . .22
32. SIGNS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
33. MORTGAGEE PROTECTION. . . . . . . . . . . . . . . . . . . . . . . .24
34. QUITCLAIM . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
35. MODIFICATIONS FOR LENDER. . . . . . . . . . . . . . . . . . . . . .24
36. WARRANTIES OF TENANT. . . . . . . . . . . . . . . . . . . . . . . .24
37. COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT . . . . . . . . . .24
38. BROKERAGE COMMISSION. . . . . . . . . . . . . . . . . . . . . . . .25
39. QUIET ENJOYMENT . . . . . . . . . . . . . . . . . . . . . . . . . .25
40. LANDLORD'S ABILITY TO PERFORM TENANT'S UNPERFORMED OBLIGATIONS. . .25
41. LANDLORD'S WAIVER . . . . . . . . . . . . . . . . . . . . . . . . .25
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LEASE AGREEMENT
DATE:This Lease is made and entered into as of the Lease Date set forth on Page
1. The Basic Lease, Information set forth on Page 1 and this Lease are and
shall be construed as a single instrument.
1. PREMISES: Landlord hereby leases the Premises to Tenant upon the terms and
conditions contained herein. Landlord hereby grants to Tenant a license for the
right to use, on a non-exclusive basis, parking areas and ancillary facilities
located within the Common Areas of the Park, subject to the terms of this Lease.
Landlord and Tenant hereby agree that for purposes of this Lease, as of the
Lease Date, the rentable square footage area of the Premises, the Building, the
Lot and the Park shall be deemed to be the number of rentable square feet as set
forth in the Basic Lease Information on Page 1. Tenant hereby acknowledges that
the rentable square footage of the Premises may include a proportionate share of
certain areas used in common by all of the Building and/or the Park (for example
an electrical room or telephone room). Tenant further agrees that the number of
rentable square feet of the Building, the Lot and the Park may subsequently
change after the Lease Date commensurate with any modifications to any of the
foregoing by Landlord, and Tenant's Share shall accordingly change.
2. ADJUSTMENT OF COMMENCEMENT DATE; CONDITION OF THE PREMISES:
2.1 If Landlord cannot deliver possession of the Premises on the
Commencement Date, Landlord shall not be subject to any liability nor shall
the validity of the Lease be affected; provided, the Lease Term and the
obligation to pay Rent shall commence on the date possession is tendered and
the Expiration Date shall be extended commensurately. In the event the
commencement date and/or the expiration date of this Lease is other than the
Commencement Date and/or Expiration Date provided on Page 1, as the case may
be, Landlord and Tenant shall execute a written amendment to this Lease,
substantially in the form of Exhibit F hereto, wherein the parties shall
specify the actual commencement date, expiration date and the date on which
Tenant is to commence paying Rent. The word "Term" whenever used herein
refers to the initial term of this Lease and any extension thereof. Except
as otherwise provided herein, by taking possession of the Premises, Tenant
shall be deemed to have accepted the Premises in good, condition and state of
repair, subject to punchlist items. Landlord shall repair, at its sole cost
and expense, after receipt of Tenant's written notice thereof, which notice
must be delivered to Landlord within the first one hundred-eighty (180) days
of the term of this Lease, any (i) latent defects in the Premises, and (ii)
any mechanical HVAC, roof and electrical systems serving the Premises which
are not in good working order to the extent Tenant has not caused such
systems to not be in good working order. If Tenant fails to timely deliver
to Landlord any such written notice of the aforementioned defects or
deficiencies within said one hundred-eighty (180) days period, Landlord shall
have no obligation to perform any such work thereafter, except as
specifically provided in this Lease. Landlord shall allow Tenant to,
concurrently with Landlord (if Landlord so desires, otherwise separately),
make a claim against Landlord's general contractor for any patent or latent
defects in the initial design or construction of the Tenant Improvements for
a period of five (5) years after the date on which the Tenant Improvements
are Substantially Completed. In addition to the foregoing, Tenant shall be
entitled to enforce, concurrently with Landlord, any warranties made or given
to Landlord from the general contractor and any major subcontractors with
respect to the Tenant Improvements. Tenant shall be a third party
beneficiary of Landlord's construction agreement, and accordingly, Landlord
agrees to include a provision in Landlord's construction contract to
effectuate same. Tenant hereby acknowledges and agrees that neither Landlord
nor Landlord's agents or representatives has made any representations or
warranties as to the suitability, safety or fitness of the Premises for the
conduct of Tenant's business, Tenant's intended use of the Premises or for
any other purpose. The Building shell construction shall include all items
listed on Exhibit B-1.
Landlord and Tenant hereby acknowledge and agree that as of the Lease
Date the Building construction has not been completed on the Lot.
Notwithstanding the foregoing to the contrary, (A) in the event that for
reasons other than the occurrence of a Force Majeure Delay (as hereinafter
defined) or a Tenant Delay (as hereinafter defined) the Commencement Date has
not occurred by the date which is ninety (90) days after the Commencement
Date stated on Page 1, ("Last Occupancy Date"), Tenant may elect to terminate
the Lease. Termination of the Lease by Tenant as provided for herein shall be
the sole and exclusive remedy of Tenant for Landlord's failure to deliver the
Premises. Tenant shall exercise the right to terminate provided for herein
by giving Landlord written notice of its intent to so terminate ("Termination
Notice"). The Termination Notice shall be given, if at all, on or before the
date which is five (5) days after the Last Occupancy Date. Termination of the
Lease shall be effective fifteen (15) days after Landlord's receipt of the
Termination Notice. In the event that Tenant gives the Termination Notice,
and in the further event that during such fifteen (15) day period, the
Commencement Date occurs, the Tenant shall not be entitled to terminate the
Lease as provided for herein. For purposes of this paragraph the term "Force
Majeure Delay" shall mean any actual delay beyond the reasonable control of
Landlord in completion of the Tenant Improvements which is not a Tenant Delay
and which is caused by, with limitation, any one or more of the following:
(a) wars; (b) fire; (c) earthquake, flood or other natural disaster, (d)
unusual and unforeseeable delay not within the reasonable control of
Landlord; (e) casualties; (f) other acts of God; or (g) governmental action
or inaction (including failure, refusal or delay in issuing permits,
approvals and/or authorizations), or injunction, permit appeal or court order
requiring cessation of construction taking place in the Premises. The Term
"Tenant Delay" shall mean any delay in completion of the Tenant Improvements
resulting from any or all of the following: (i) Tenant's failure to timely
perform any of its obligations under the Lease, including any failure to
complete on or before the date due thereof, any actual item which is Tenant's
responsibility to complete or perform; (ii) Tenant's delay in approving
plans, specifications, drawings, and any other documents setting forth and/or
describing the Tenant Improvements, including, without limitation, the Final
Drawings, beyond those periods of time permitted by the terms of the Lease;
(iii) Tenant's changes to Landlord and Tenant approved plans, specifications,
drawings or any other documents describing and/or depicting the Tenant
Improvements; (iv) Tenant's request for
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materials, finishes, or installations which are not readily available or
which are incompatible with Landlord's standard materials, finishes or
installations for the Premises; (v) Tenant's use or occupancy of the Premises
during the construction of the Tenant Improvements or any act or failure to
act by Tenant in connection with its use or occupancy of the Premises during
the construction of the Tenant Improvements. Upon termination of the Lease
by Tenant pursuant to the terms of this paragraph, Landlord shall promptly
return all prepaid Rent to Tenant.
2.2 In the event Landlord permits Tenant to occupy the Premises prior
to the Commencement Date, for purposes other than those permitted pursuant to
Paragraph 13 of Exhibit B of the Lease, such occupancy shall be at Tenant's
sole risk and subject to all the provisions of this Lease, including, but not
limited to, the requirement to pay Rent and the Security Deposit, and to
obtain the insurance required pursuant to this Lease and to deliver insurance
certificates as required herein. In addition to the foregoing, Landlord
shall have the right to impose such additional conditions on Tenant's early
entry as Landlord shall deem appropriate. If, at any time, Tenant is in
default of any term, condition or provision of this Lease, any such waiver by
Landlord of Tenant's requirement to pay rental payments shall be null and
void and Tenant shall immediately pay to Landlord all rental payments so
waived by Landlord.
3. RENT: On the date that Tenant executes this Lease, Tenant shall deliver
to Landlord the original executed Lease, the Base Rent (which shall be
applied against the Rent payable for the first month Tenant is required to
pay Base Rent), the Security Deposit, and all insurance certificates
evidencing the insurance required to be obtained by Tenant under Section 12
of this Lease. Tenant agrees to pay Landlord, without prior notice or
demand, or abatement, offset, deduction or claim, except as otherwise
provided herein, the Base Rent described on Page I, payable in advance at
Landlord's address shown on Page I on the first day of each month throughout
the Term of the Lease. In addition to the Base Rent set forth on Page i,
Tenant shall pay Landlord in advance and on the first (lst) day of each month
throughout the Term of this Lease, as Additional Rent, Tenant's Share of
Operating Expenses, Tax Expenses, Common Area Utility Costs, and Utility
Expenses. Tenant shall also pay to Landlord as Additional Rent hereunder,
immediately) on Landlord's demand therefor, any and all reasonable costs and
expenses incurred by Landlord to enforce the provisions of this Lease,
including, but not limited to, costs associated with the delivery of notices,
delivery and recordation of notice(s) of default, reasonable attorneys' fees,
expert fees, court costs and filing fees (collectively, the "Enforcement
Expenses"). The term "Rent" whenever used herein refers to the aggregate of
all these amounts. If Landlord permits Tenant to occupy the Premises without
requiring Tenant to pay rental payments for a period of time, the waiver of
the requirement to pay rental payments shall only apply to waiver of the Base
Rent and Tenant shall otherwise perform all other obligations of Tenant
required hereunder. The Rent for any fractional part of a calendar month at
the commencement or termination of the Lease term shall be a prorated amount
of the Rent for a full calendar month based upon a thirty (30) day month.
The prorated Rent shall be paid on the Commencement Date and the first day of
the calendar month in which the date of termination occurs, as the case may
be.
4. SECURITY DEPOSIT:
4.1 FIRST SECURITY DEPOSIT: Upon Tenant's execution of this Lease,
Tenant shall deliver to Landlord, as a First Security Deposit for the
performance by Tenant of its obligations under this Lease, the amount
described on Page 1. If Tenant is in default, Landlord may, but without
obligation to do so, use the First Security Deposit, or any portion thereof,
to cure the default or to compensate Landlord for all damages sustained by
Landlord resulting from Tenant's default, including, but not limited to the
Enforcement Expenses. Tenant shall, immediately on demand, pay to Landlord a
sum equal to the portion of the First Security Deposit so applied or used so
as to replenish the amount of the First Security Deposit held to increase
such deposit to the amount initially deposited with Landlord. Within thirty
(30) days after the termination of this Lease, if possible Landlord shall
return the First Security Deposit to Tenant, less such amounts as are
reasonably necessary, as determined reasonably by Landlord, to remedy
Tenant's default(s) hereunder or to otherwise restore the Premises to a clean
and safe condition, reasonable wear and tear excepted. If the cost to
restore the Premises exceeds the amount of the First Security Deposit, Tenant
shall promptly deliver to Landlord any and all of such excess sums as
reasonably determined by Landlord. Landlord shall not be required to keep
the First Security Deposit separate from other finds, and, unless otherwise
required by law, Tenant shall not be entitled to interest on the First
Security Deposit. In no event or circumstance shall Tenant have the right to
any use of the First Security Deposit and, specifically, Tenant may not use
the First Security Deposit as a credit or to otherwise offset any payments
required hereunder, including, but not limited to, Rent or any portion
thereof.
4.2 SECOND SECURITY DEPOSIT: For purposes of this Section 4.2 any and
all references herein to Tenant shall alternatively mean and refer to a
Permitted Transferee(hereafter defined in Section 15}if Tenant assigns the
Premises to a Permitted Transferee in accordance with the provisions of
Section 15 of this Lease. On or before full Lease execution, Tenant shall
deliver to Landlord, as a second security deposit (the "Second Security
Deposit") for the full and faithful performance by Tenant of all of its
obligations under this Lease, an irrevocable negotiable letter of credit, in
the form and containing the terms required herein, payable in the City of
Foster City, California running in favor of Landlord issued by a solvent bank
under the supervision of the Superintendent of Banks of the State of
California, or a National Banking Association, in the amount of eight hundred
thousand and 00/100 dollars ($800,000.00) (the "Letter of Credit"). The
Letter of Credit shall be (a) at sight and irrevocable (b) maintained in
declining amounts stated below, whether through replacement, renewal or
extension, until the eighth anniversary of the Lease or until Tenant has
achieved two consecutive years of profitability in either of which cases,
Tenant shall 'no longer by required to maintain the Second Security Deposit.
Provided, however if Tenant is or has been in default of any provision of the
Lease beyond any applicable cure period set forth in the Lease at the time of
the eighth anniversary of the Lease, the Second
5
Security Deposit shall be maintained as described herein throughout the Term
of the Lease (the "Letter of Credit Expiration Date"), and Tenant shall
deliver a new Letter of Credit or certificate of renewal or extension to
Landlord at least thirty (30) days prior to the expiration of the Letter of
Credit, without any action whatsoever on the part of Landlord, (c) subject to
the Uniform Customs and Practices for Documentary Credits (1983-Rev)
International Chamber of Commerce Publication//400, and (d) acceptable to
Landlord in its sole discretion. The Letter of Credit amount shall decline
and be renewed or extended as follows:
Origination or
Renewal/Extension Date Expiration Date Amount
--------------- ------
Lease Execution May 20, 2000 $800,000.00
April 20, 2000 May 20, 2001 $775,020.00
April 20, 2001 May 20, 2002 $566,265.00
April 20, 2002 May 20, 2003 $377,510.00
April 20, 2003 May 20, 2004 $188,755.00
The above Letter of Credit amounts include the full amount of the amortized
excess Tenant Improvement costs as defined in paragraph 10 of Exhibit B of
the Lease. In the event that the full amount of the Excess Tenant
Improvement costs are not provided by Landlord then the original Letter of
Credit amounts shall be reduced by the amount of the Excess Tenant
Improvement Costs that are not provided by Landlord. The subsequent Letter
of Credit amounts shall be reduced by twenty (20) percent for each
renewal/extension period as outlined above.
In addition to the foregoing, the form and terms of the Letter of Credit (and
the bank issuing the same) shall be acceptable to Landlord, in Landlord's
sole discretion, and shall provide, among other things, in effect that: (1)
Landlord, or its then managing agent, shall have the right to draw down an
amount up to the face amount of the Letter of Credit upon the presentation to
the issuing bank of Landlord's (or Landlord's then managing agent's)
statement that such amount is due to Landlord under the terms and conditions
of this Lease, it being understood that if Landlord or its managing agent be
a corporation, partnership or other entity, then such statement shall be
signed by an officer (if a corporation), a general partner (if a
partnership), or any authorized party (if another entity); (2) the Letter of
Credit will be honored by the issuing bank without inquiry as to the accuracy
thereof and regardless of whether the Tenant disputes the content of such
statement; (3) in the event of a transfer of Landlord's interest in any of
the Buildings of which the Premises are a part, Landlord shall have the right
to transfer the Letter of Credit, in whole or in part (or cause a substitute
letter of credit to be delivered, as applicable), to the transferee and upon
such transferee's assumption of Landlord's obligations under the Lease, the
Landlord shall, without any further agreement between the parties, be
released by Tenant from all liability therefor, and it is agreed that the
provisions hereof shall apply to every transfer or assignment of the whole or
any portion of said Letter of Credit to a new Landlord. If, as a result of
any such application of all or any part of such security, the amount secured
by the Letter of Credit shall be less than two hundred fifty-two thousand two
hundred eighty-eight and 00/100 dollars ($252,288.00) or the required Letter
of Credit amount for the corresponding dates above, Tenant shall forthwith
provide Landlord with additional letter(s) of credit or cash in an amount
equal to the deficiency and each such additional letter of credit shall
comply with all of the provisions of this Section 4.2. Tenant further
covenants and warrants that it will not assign nor encumber the Letter of
Credit or any part thereof and that neither Landlord nor its successors or
assigns will be bound by any such assignment, encumbrance, attempted
assignment or attempted encumbrance. Without limiting the generality of the
foregoing, if the Letter of Credit expires earlier than the Letter of Credit
Expiration Date, Landlord will accept a renewal thereof or substitute letter
of credit (such renewal or substitute letter of credit to be in effect not
later than thirty (30) days prior to the expiration thereof), irrevocable and
automatically renewable as above provided through the Letter of Credit
Expiration Date upon the same terms as the expiring letter of credit or such
other terms as may be acceptable to Landlord. However, if the Letter of
Credit is not timely renewed or a substitute letter of credit or cash is not
timely received, or if Tenant fails to maintain the Letter of Credit in the
amount and terms set forth in this Section 4.2, Tenant, at least thirty (30)
days prior to the expiration of the Letter of Credit, or immediately upon its
failure to comply with each and every term of this Section 4.2, must deposit
with Landlord cash security in the amounts required by, and to be held
subject to and in accordance with, all of the terms and conditions set forth
this Section 4.2 and all other applicable provisions of this Lease, failing
which the Landlord may present such Letter of Credit to the bank in
accordance with the terms of this Section 4.2, and the entire sum secured
thereby shall be paid to Landlord, to be held by Landlord as provided in this
Section 4.2. If Tenant is in default after the expiration of any applicable
cure period, Landlord may, but without obligation to do so, use the Second
Security Deposit, or any portion thereof, to cure the default or to
compensate Landlord for all reasonable damages sustained by Landlord
resulting from Tenant's default, including, but not limited to the
Enforcement Expenses. Tenant shall, within ten (10) business days after the
expiration of any applicable cure period on demand, pay to Landlord a sum
equal to the portion of the Second Security Deposit so applied or used so as
to replenish the amount of the Second Security Deposit held to increase such
deposit to the amount initially deposited with Landlord.
5. TENANT IMPROVEMENTS: Tenant hereby accepts the Premises in the
condition in EXHIBIT B attached hereto. If so specified in EXHIBIT B hereto,
Landlord or Tenant, as the case may be, shall install the improvements
("Tenant Improvements") in the Premises in accordance with the terms,
conditions, criteria and provisions set forth in EXHIBIT B hereto. Tenant
acknowledges that neither Landlord nor any of Landlord's agents,
representatives or employees has made any representations as to the
suitability or fitness of the Premises for the conduct of Tenant's business,
including without limitation, any storage incidental thereto, or for any
other purpose, and that neither Landlord nor any of Landlord's agents,
representatives or employees has agreed to undertake any alterations or
construct any Tenant Improvements to the Premises except as expressly
provided in EXHIBIT B to this Lease.
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6. ADDITIONAL RENT: It is intended by Landlord and Tenant that this Lease
be a "triple net lease". The costs and expenses described in this Section 6
and all other sums, charges, costs and expenses specified in this Lease other
than Base Rent are to be paid by Tenant to Landlord as additional rent
(collectively, "Additional Rent").
6.1 OPERATING EXPENSES: In addition to the Base Rent set forth in
Section 3, Tenant shall pay Tenant's Share, which is defined on Page 1, of
all Operating Expenses as Additional Rent. The term "Operating Expenses" as
used herein shall mean the total amounts paid or payable by Landlord in
connection with the ownership, maintenance, repair and operation of the
Premises, the Building and the Lot, and where applicable, of the Park
referred to on Page 1. The amount of Tenant's Share of Operating Expenses
shall be reviewed from time to time by Landlord and shall be subject to
modification by Landlord if there is a change in the rentable square footage
of the Premises, the Building and/or the Park. These Operating Expenses may
include, but are not limited to:
6.1.1 Landlord's cost of repairs to, and maintenance of, the
roof, the roof membrane and the exterior walls of the Building;
6.1.2 Landlord's cost of maintaining the outside paved area,
landscaping and other common areas for the Park. The term "Common Areas"
shall mean all areas and facilities within the Park exclusive of the Premises
and the other portions of the Park leased exclusively to other tenants. The
Common Areas include, but are not limited to, interior lobbies, mezzanines,
parking areas, access and perimeter roads, sidewalks, rail spurs, landscaped
areas and similar areas and facilities;
6.1.3 Landlord's annual cost of insurance insuring against fire
and extended coverage (including, if Landlord elects, "all risk" coverage)
and all other insurance, including, but not limited to, earthquake, flood
and/or surface water endorsements for the Building, the Lot and the Park
(including the Common Areas), rental value insurance against loss of Rent in
an amount equal to the amount of Rent for a period of at least six (6) months
commencing on the date of loss, and subject to the provisions of Section 27
below, any deductible;
With respect to property insurance maintained by Landlord
hereunder, except as set forth below, Tenant shall not be
required to reimburse Landlord for any premiums paid by Landlord
for insurance covering loss due to earthquake in excess of the
Base Amount. For purposes of the foregoing, the term "Base
Amount" shall mean (i) with respect to the first twelve (12)
months of the term of this Lease following the Commencement Date,
a sum equal to only the portion of the insurance premium
attributable to insurance covering loss due to earthquake, and
(ii) with respect to each twelve (12) month period thereafter, a
sum equal to the amount included in Operating Expenses during
the immediately preceding twelve (12) month period with respect
to such premiums, with actual increase not to exceed ten percent
(10%). However, (a) if any mortgagee of Landlord requires
Landlord to maintain earthquake insurance, then Landlord shall
pay the excess premium costs over the Base Amount, and (b) if
all mortgagees of Landlord do not require Landlord to maintain
earthquake insurance and the premiums paid for earthquake
insurance exceed the Base Amount, then if Tenant does not elect
to pay such excess premium costs, Landlord may elect not to
maintain such earthquake insurance.
6.1.4 Landlord's cost of modifications to the Building, the
Common Areas and/or the Park occasioned by any rules, laws or regulations
effective subsequent to the date on which the Building was originally
constructed;
6.1.5 If Landlord elects to so procure, Landlord's cost of
preventative maintenance, and repair contracts including, but not limited to,
contracts for elevator systems and heating, ventilation and air conditioning
systems, lifts for disabled persons, and trash or refuse collection;
6.1.6 Landlord's cost of security and fire protection services
for the Building and/or the Park, as the case may be, if in Landlord's sole
discretion such services are provided;
6.1.7 Landlord's establishment of reasonable reserves for
replacements and/or repairs of Common Area improvements, equipment and
supplies;
6.1.8 Landlord's cost of supplies, equipment, rental equipment
and other similar items used in the operation and/or maintenance of the Park;
6.1.9 Landlord's cost for the repairs and maintenance items set
forth in Section 11.2 below; and
6.1.10 Landlord's cost for the management and administration of
the Premises, the Building, the Common Areas and the Park, including without
limitation, a property management fee, accounting, auditing, billing,
salaries for clerical and supervisory employees (whether located within the
Park or off-site) and all fees, licenses and permits related to the
ownership, operation and management of any portion of the Park in an amount
not to exceed three percent (3 %) of the Rent, excluding for purposes of
calculating this sum, the costs described in this Section 6.1.11.
7
Notwithstanding anything to the contrary contained in this Lease,
in no event shall Operating Expenses include the following (collectively
"Costs"):
(a) Costs relating to repairs, alterations, improvements,
equipment and tools which would be property capitalized under generally
accepted accounting principles, except to the extent of Lessee's share
of such costs of the capital items in question;
(b) Costs incurred by Lessor to the extent that Lessor is
reimbursed by insurance proceeds or otherwise;
(c) Costs, including permit, license and inspecting costs,
incurred with respect to the installation of improvements made for
tenants or other occupants in the Building or incurred with respect to
the installation of improvements made for tenants or other occupants in
the Building or incurred in renovating or otherwise improving,
decorating, painting or redecorating vacant space for tenants or other
occupants of the Building;
(d) Depreciation, amortization and interest payments, except
to the extent provided herein pursuant to paragraph (b) above, and
except on materials, tools, supplies and vendor-type equipment purchased
by Lessor to enable Lessor to supply services Lessor might otherwise
contract for with a third party where such depreciation, amortization
and interest payments would otherwise have been included in the charge
for such third party's services, all as determined in accordance with
generally accepted accounting principles, consistently applied (as
applied to commercial real estate), and when depreciation or
amortization is permitted or required, the item shall be amortized over
its reasonably anticipated useful life (as reasonably determined by
Lessor):
(e) Leasing commissions, attorneys' fees, space planning
costs, and other costs and expenses in connection with negotiations with
present or prospective tenants or other occupants of the Building;
(f) Expenses in connection with serves or other benefits
which are not offered to Lessee or for which Lessee is charged directly
but which are provided to another tenant or occupant of the Building;
(g) Overhead and profit increments paid to Lessor or to
subsidiaries or affiliates of Lessor for goods and/or services to the
extent the same exceed the costs of such goods and/or services rendered
by unaffiliated third parties on a competitive basis;
(h) Costs (including in connection therewith all attorneys'
fees and costs of settlement, judgments and payments in lieu thereof)
arising from claims, disputes or potential disputes (other than claims
or disputes, including, but not limited to, tax disputes where the
tenants of the Building would receive benefits if Lessor prevails) in
connection with potential or actual claims, litigation or arbitrations
pertaining to Lessor and/or the Building; and
(i) Any expense not an Operating Expense as defined under GAAP.
6.2 TAX EXPENSES: In addition to the Base Rent set forth in Section
3, Tenant shall pay its share, which is defined on Page l, of all real
property taxes applicable to the land and improvements included within the
Lot on which the Premises are situated and one hundred percent (100%) of all
personal property taxes now or hereafter assessed or levied against the
Premises or Tenant's personal property. The amount of Tenant's Share of Tax
Expenses shall be reviewed from time to time by Landlord and shall be subject
to modification by Landlord if there is a change in the rentable square
footage of the Premises, the Building and/or the Park. Tenant shall also pay
one hundred percent (100 %) of any increase in real property taxes
attributable, in Landlord's sole but reasonable discretion, to any and all
alterations, Tenant Improvements or other improvements of any kind, which are
above standard improvements customarily installed for similar buildings
located within the Building or the Park (as applicable), whatsoever placed
in, on or about the Premises for the benefit of, at the request of, or by
Tenant. The term "Tax Expenses" shall mean and include, without limitation,
any form of tax and assessment (general, special, supplemental, ordinary or
extraordinary), commercial rental tax, payments under any improvement bond or
bonds, license fees, license tax, business license fee, rental tax,
transaction tax, levy, or penalty imposed by authority having the direct or
indirect power of tax (including any city, county, state or federal
government, or any school, agricultural, lighting, drainage or other
improvement district thereof) as against any legal or equitable interest of
Landlord in the Premises, the Building, the Lot or the Park, as against
Landlord's right to rent, or as against Landlord's business of leasing the
Premises or the occupancy of Tenant or any other tax, fee, or excise, however
described, including, but not limited to, any value added tax, or any tax
imposed in substitution (partially or totally) of any tax previously included
within the definition of real property taxes, or any additional tax the
nature of which was previously included within the definition of real
property taxes. The term "Tax Expenses" shall not include any franchise,
estate, inheritance, net income, or excess profits tax imposed upon Landlord.
6.3 PAYMENT OF EXPENSES: Landlord shall estimate Tenant's Share of
the Operating Expenses and Tax Expenses for the calendar year in which the
Lease commences. Commencing on the Commencement Date, one-twelfth (1/12th)
of this estimated amount shall be paid by Tenant to Landlord, as Additional
Rent, on the first (lst) day of each month and throughout the remaining
months of such calendar year. Thereafter, Landlord may estimate such
expenses as of the beginning of each calendar year and Tenant shall pay
one-twelfth (1/12th) of such estimated amount as Additional Rent hereunder on
the first day of each month during such calendar year
8
and for each ensuing calendar year throughout the Term of this Lease.
Tenant's obligation to pay its Tenant's Share of Operating Expenses and Tax
Expenses shall survive the expiration or earlier termination of this Lease.
6.4 ANNUAL RECONCILIATION: By June 30th of each calendar year, or as
soon thereafter as reasonably possible, Landlord shall endeavor to furnish
Tenant with an accounting of actual Operating Expenses and Tax Expenses.
Within thirty (30) days of Landlord's delivery.of such accounting, Tenant
shall pay to Landlord the amount of any underpayment. Notwithstanding the
foregoing, failure by Landlord to give such accounting by such date shall not
constitute a waiver by Landlord of its right to collect any of Tenant's
underpayment at any time. Landlord shall credit the amount of any
overpayment by Tenant toward the next estimated monthly installment(s)
falling due, or where the Term of the Lease has expired, refund the amount of
overpayment to Tenant within thirty (30) days of such accounting. If the
Term of the Lease expires prior to the annual reconciliation of expenses
Landlord shall have the right to reasonably estimate Tenant's Share of such
expenses, and if Landlord determines that an underpayment is due, Tenant
hereby agrees that Landlord shall be entitled to deduct such underpayment
from Tenant's Security Deposit. If Landlord reasonably determines that an
overpayment has been made by Tenant, Landlord shall refund said overpayment
to Tenant as soon as practicable thereafter. Notwithstanding the foregoing,
failure of Landlord to accurately estimate Tenant's Share of such expenses or
to otherwise perform such reconciliation of expenses, including without
limitation, Landlord's failure to deduct any portion of any underpayment from
Tenant's Security Deposit, shall not constitute a waiver of Landlord's right
to collect any of Tenant's underpayment at any time during the Term of the
Lease or at any time after the expiration or earlier termination of this
Lease.
6.5 AUDIT: After delivery to Landlord of at least five (5) business
days prior written notice, Tenant, at its sole cost and expense through any
accountant designated by it, shall have the right to examine and/or audit the
books and records evidencing such costs and expenses for the previous one (1)
calendar year, during Landlord's reasonable business hours but not more
frequently than once during any calendar year. Any such accounting firm
designated by Tenant may not be compensated on a contingency fee basis. The
results of any such audit (and any negotiations between the parties related
thereto) shall be maintained strictly confidential by Tenant and its
accounting firm and shall not be disclosed, published or otherwise
disseminated to any other party other than to Landlord and its authorized
agents. Landlord and Tenant shall use its best efforts to cooperate in such
negotiations and to promptly resolve any discrepancies between Landlord and
Tenant in the accounting of such costs and expenses. In the event that a
refund is determined by Landlord and Tenant or Tenant's accounting firm, to
be due to Tenant, then such refund amount shall be paid, together with
interest thereupon at ten percent (10%) per annum from the date of Landlord's
delivery of its accounting until the payment of such refund.
7. UTILITIES: Utility Expenses, Common Area Utility Costs and all other
sums or charges set forth in this Section 7 are considered part of Additional
Rent. Tenant shall pay the cost of all water, sewer use, sewer discharge
fees and sewer connection fees, gas, heat, electricity, refuse pickup,
janitorial service, telephone and other utilities billed or metered
separately to the Premises and/or Tenant. Tenant shall also pay its share of
any assessments or charges for utility or similar purposes included within
any tax bill for the Lot on which the Premises are situated, including,
without limitation, entitlement fees, allocation unit fees, and/or any
similar fees or charges, and any penalties related thereto. For any such
utility fees or use charges that are not billed or metered separately to
Tenant, Tenant shall pay to Landlord, as Additional Rent, without prior
notice or demand, on the first (lst) day of each month throughout the Term of
this Lease the amount which is attributable to Tenant's use of the utilities
or similar services, as reasonably estimated and determined by Landlord based
upon factors such as size of the Premises and intensity of use of such
utilities by Tenant such that Tenant shall pay the portion of such charges
reasonably consistent with Tenant's use of such utilities and similar
services ("Utility Expenses"). If Tenant disputes any such estimate or
determination, then Tenant shall either pay the estimated amount or cause the
Premises to be separately metered at Tenant's sole expense. In addition,
Tenant shall pay to Landlord Tenant's Share, which is set forth on Page 1, as
Additional Rent, without prior notice or demand, on the first (lst) day of
each month throughout the Term of this Lease, of any Common Area utility
costs, fees, charges or expenses ("Common Area Utility Costs"). Tenant shall
pay to Landlord one-twelfth (1/12th) of the estimated amount of Tenant's
Share of the Common Area Utility Costs in the same manner and time periods as
specified in Section 6.3 above and any reconciliation thereof shall also be
in the same manner as specified in Sections 6.3 and 6.4 above. The amount of
Tenant's Share of Common Area Utility Costs shall be reviewed from time to
time by Landlord and shall be subject to modification by Landlord if there is
a change in the rentable square footage of the Premises, the Building and/or
the Park. Tenant acknowledges that the Premises may become subject to the
rationing of utility services or restrictions on utility use as required by a
public utility company, governmental agency or other similar entity having
jurisdiction thereof. Notwithstanding any such rationing or restrictions on
use of any such utility services, Tenant acknowledges and agrees that its
tenancy and occupancy hereunder shall be subject to such rationing
restrictions as may be imposed upon Landlord, Tenant, the Premises, the
Building or the Park, and Tenant shall in no event be excused or relieved
from any covenant or obligation to be kept or performed by Tenant by reason
of any such rationing or restrictions. Tenant further agrees to timely and
faithfully pay, prior to delinquency, any amount, tax, charge, surcharge,
assessment or imposition levied, assessed or imposed upon the Premises, or
Tenant's use and occupancy thereof.
8. LATE CHARGES: Any and all sums or charges set forth in this Section 8
are considered part of Additional Rent. Tenant acknowledges that late
payment (the sixth day of each month or any time thereafter) by Tenant to
Landlord of Base Rent, Tenant's Share of Operating Expenses, Tax Expenses,
Common Area Utility Costs, and Utility Expenses or other sums due hereunder,
will cause Landlord to incur costs not contemplated by this Lease, the exact
amount of such costs being extremely difficult and impracticable to fix.
Such costs include, without limitation, processing and accounting charges,
and late charges that may be imposed on Landlord by the terms of any note
secured by any encumbrance against the Premises, and late charges and
penalties due to
9
the late payment of real property taxes on the Premises. Therefore, if any
installment of Rent or any other sum due from Tenant is not received by
Landlord when due or by the expiration of any applicable grace period
provided for herein, Tenant shall promptly pay to Landlord all of the
following, as applicable: (a) an additional sum equal to ten percent (10%) of
such delinquent amount plus interest on such delinquent amount at the rate
equal to the prime rate plus three percent (3 %) for the time period such
payments are delinquent as a late charge for every month or portion thereof
that such sums remain unpaid, (b) the amount of seventy-five dollars ($75)
for each three-day notice prepared for, or served on, Tenant, (c) the amount
of fifty dollars ($50) relating to checks for which there are not sufficient
funds. If Tenant delivers to Landlord a check for which there are not
sufficient funds, Landlord may, at its sole option, require Tenant to replace
such check with a cashier's check for the amount of such check and all other
charges payable hereunder. The parties agree that this late charge and the
other charges referenced above represent a fair and reasonable estimate of
the costs that Landlord will incur by reason of late payment by Tenant.
Acceptance of any late charge or other charges shall not constitute a waiver
by Landlord of Tenant's default with respect to the delinquent amount, nor
prevent Landlord from exercising any of the other rights and remedies
available to Landlord for any other breach of Tenant under this Lease. If a
late charge or other charge becomes payable for any three (3) installments of
Rent within any twelve (12) month period, then Landlord, can require the Rent
be paid monthly in advance by cashier's check or by electronic funds
transfer. Notwithstanding anything to the contrary contained within this
Lease. Landlord shall reduce the late charge to seven (7%) percent, but not
more than twice during any Lease year. If Tenant pays Rent late more than
twice per Lease year as provided above, Landlord shall be free to impose the
ten (10%) percent late charge.
9. USE OF PREMISES:
9.1 COMPLIANCE WITH LAWS, RECORDED MATTERS, AND RULES AND
REGULATIONS: The Premises are to be used solely for the uses stated on Page 1
and for no other uses or purposes without Landlord's prior written consent,
which consent shall not be unreasonably withheld or delayed, but, may be
given or withheld in Landlord's sole discretion. The use of the Premises by
Tenant and its employees, representatives, agents, invitees, licensees,
subtenants, customers or contractors (collectively, "Tenant's
Representatives") shall be subject to, and at all times in compliance with,
(a) any and all applicable laws, ordinances, statutes, orders and regulations
as same exist from time to time (collectively, the "Laws"), (b) any and all
documents, matters or instruments, including without limitation, any
declarations of covenants, conditions and restrictions, and any supplements
thereto, each of which has been or hereafter is recorded in any official or
public records with respect to the Premises, the Building, the Lot and/or the
Park, or any portion thereof (collectively, the "Recorded Matters"), and (c)
any and all rules and regulations set forth in Exhibit C, attached to and
made a part of this Lease, and any other reasonable rules and regulations
promulgated by Landlord now or hereafter enacted relating to parking and the
operation of the Premises, the Building and the Park (collectively, the
"Rules and Regulations"), provided that any Rules and Regulations hereafter
enacted solely by Landlord shall not unreasonably interfere with Tenant's use
of, or access to the Premises. Tenant agrees to, and does hereby, assume
full and complete responsibility to ensure that the Premises are adequate to
fully meet the needs and requirements of Tenant's intended operations of its
business within the Premises, and Tenant's use of the Premises and that same
are in compliance with all applicable Laws throughout the Term of this Lease.
Additionally, Tenant shall be solely responsible for the payment of all
costs, fees and expenses associated with any modifications to the Premises,
Building, the Common Areas and/or the Park occasioned by the enactment of, or
changes to, any Laws arising from Tenant's particular use of the Premises
regardless of when such Laws become effective.
Tenant shall not be responsible for making any structural changes to
the Premises in order to bring the Premises into compliance with any laws,
codes, ordinances, orders or regulations in effect as of the date of this
Lease, unless (i) such structural changes are necessitated as a result of
Tenant's particular use of the Premises or (ii) the requirements for such
changes are triggered as a result of any action by Tenant or Tenant's
representatives on or about the Premises.
9.2 PROHIBITION ON USE: Tenant shall not use the Premises or permit
anything to be done in or about the Premises nor keep or bring anything
therein which will in any way conflict with any of the requirements of the
Board of Fire Underwriters or similar body now or hereafter constituted or in
any way increase the existing rate of or affect any policy of fire or other
insurance upon the Building or any of its contents, or cause a cancellation
of any insurance policy. No auctions may be held or otherwise conducted in,
on or about the Premises, the Building, the Lot or the Park without
Landlord's written consent thereto, which consent may be given or withheld in
Landlord's sole discretion. Tenant shall not do or permit anything to be
done in or about the Premises which will in any way obstruct or interfere
with the rights of Landlord, other tenants or occupants of the Building,
other buildings in the Park, or other persons or businesses in the area, or
injure or annoy other tenants or use or allow the Premises to be used for any
unlawful or objectionable purpose, as determined by Landlord, in its
reasonable discretion, for the benefit, quiet enjoyment and use by Landlord
and all other tenants or occupants of the Building or other buildings in the
Park; nor shall Tenant cause, maintain or permit any private or public
nuisance in, on or about the Premises, Building, Park and/or the Common
Areas, including, but not limited to, any offensive odors, noises, fumes or
vibrations. Tenant shall not damage or deface or otherwise commit or suffer
to be committed any waste in, upon or about the Premises. Tenant shall not
place or store, nor permit any other person or entity to place or store, any
property, equipment, materials, supplies, personal property or any other
items or goods outside of the Premises for any period of time. Tenant shall
not permit any animals, including, but not limited to, any household pets, to
be brought or kept in or about the Premises. Tenant shall place no loads
upon the floors, walls, or ceilings in excess of the maximum designed load
permitted by the applicable Uniform Building Code or which may damage the
Building or outside areas; nor place any harmful liquids in the drainage
systems; nor dump or store waste materials, refuse or other such materials,
or allow such to remain outside the Building area, except in refuse
10
dumpsters or in any enclosed trash areas provided. Tenant shall honor the
terms of all Recorded Matters relating to the Premises, the Building, the Lot
and/or the Park. Tenant shall honor the Rules and Regulations. If Tenant
fails to comply with such Laws, Recorded Matters, Rules and Regulations or
the provisions of this Lease, Landlord shall have the right to collect from
Tenant all rights and remedies of Landlord hereunder including, but not
limited to, the payment by Tenant to Landlord of all Enforcement Expenses and
Landlord's reasonable costs and expenses, if any, to cure any of such
failures of Tenant, if Landlord, at its sole option, elects to undertake such
cure.
10. ALTERATIONS AND ADDITIONS AND SURRENDER OF PREMISES:
10.1 ALTERATIONS AND ADDITIONS: Tenant shall not install any signs?
fixtures, improvements, nor make or permit any other alterations or additions
to the Premises without the prior written consent of Landlord which shall not
be unreasonably withheld. If any such alteration or addition is expressly
permitted by Landlord, Tenant shall deliver at least twenty (20) days prior
notice to Landlord, from the date Tenant intends to commence construction,
sufficient to enable Landlord to post a Notice of Non-Responsibility. In all
events, Tenant shall obtain all required permits or other governmental
approvals prior to commencing any of such work and deliver a copy of same to
Landlord. All alterations and additions shall be installed by a licensed
contractor approved by Landlord, in its reasonable discretion, at Tenant's
sole expense in compliance with all applicable Laws (including, but not
limited to, the ADA as defined herein), Recorded Matters, and Rules and
Regulations. Tenant shall keep the Premises and the property on which the
Premises are situated free from any liens arising out of any work performed,
materials furnished or obligations incurred by or on behalf of Tenant. As a
condition to Landlord's consent to the installation of any fixtures,
additions or other improvements, excluding the original Tenant Improvements,
Landlord may require Tenant to post and obtain a completion and indemnity
bond for up to one hundred percent (100%) of the cost of the work.
Notwithstanding anything to the contrary contained herein, Tenant may
install, make and permit to be made improvements, alterations and additions
to the Premises without first obtaining Landlord's written consent thereto,
provided that such improvements, alterations or additions to the Premises (a)
are not structural and do not affect the structural integrity of the Premises
and/or the Building, and/or (b) do not requires the issuance of a building
permit by the City of Newark, and/or (c) do not involve electrical and/or
plumbing improvements, additions or alterations, and/or (d) do not require
penetrations to the roof of the Building, and provided further that the
cumulative cost of all such improvements, alterations and additions does not
exceed ten thousand and 00/100 dollars ($10,000.00) in the aggregate over
each twelve month period of the Term ("Permitted Improvements"). In all
events, Tenant shall be required to submit to Landlord, at least ten (10)
business days prior to commencement of any improvements, written notification
of Tenant's intention to complete improvements along with all plans,
specifications, or construction drawings of such improvements or alterations,
Tenant shall cause all Permitted Improvements to be installed by a licensed
contractor and Tenant shall keep the Premises and the property on which the
Premises are situated free from any liens arising out of any work performed,
materials furnished or obligations incurred by or on behalf of Tenant. Upon
Landlord's request, at Tenant's sole expense, all such Permitted Improvements
installed by Tenant shall be removed and the Premises shall be restored to
its original condition at the expiration or earlier termination of this Lease.
10.2 SURRENDER OF PREMISES: Upon the termination of this Lease,
whether by forfeiture, lapse of time or otherwise, or upon the termination of
Tenant's right to possession of the Premises, Tenant will at once surrender
and deliver up the Premises, together with the fixtures, additions and
improvements which Landlord has notified Tenant, in writing, that Landlord
will require Tenant not to remove, to Landlord in good condition and repair
including, but not limited to, replacing all light bulbs and ballasts not in
good working condition, excepting for reasonable wear and tear and damage
caused by an event of casualty. Reasonable wear and tear shall not include
any damage or deterioration to the floors of the Premises arising from the
use of forklifts in, on or about the Premises (including, without limitation,
any marks or stains of any portion of the floors), and any damage or
deterioration that would have been prevented by proper maintenance by Tenant
or Tenant otherwise performing all of its obligations under this Lease. Upon
such termination of this Lease, Tenant shall remove all tenant signage, trade
fixtures, furniture, furnishings, personal property, additions, and other
improvements unless Landlord requests, in writing, that Tenant not remove
some or all of such trade fixtures, additions or improvements installed by,
or on behalf of Tenant not including the Tenant Improvements as described in
Exhibit B, or situated in or about the Premises. By the date which is twenty
(20) days prior to such termination of this Lease, Landlord shall notify
Tenant in writing of those fixtures, alterations, additions and other
improvements which Landlord shall require Tenant not to remove from the
Premises unless Landlord shall have notified Tenant of such non removal
obligation at the time of granting approval for the same. Tenant shall
repair any damage caused by the installation or removal of such signs, trade
fixtures, furniture, furnishings, fixtures, additions and improvements which
are to be removed from the Premises by Tenant hereunder. If Landlord fails
to so notify Tenant at least twenty (20) days prior to such termination of
this Lease, then Tenant shall remove all tenant signage, fixtures,
alterations, furniture, furnishings, trade fixtures, additions and other
improvements installed in or about the Premises by, or on behalf of Tenant.
Tenant shall ensure that the removal of such items and the repair of the
Premises will be completed prior to such termination of this Lease.
Notwithstanding anything to the contrary herein, Tenant shall not be required
to remove the Tenant Improvements installed at the commencement of the term
of this Lease in accordance with Exhibit B.
11. REPAIRS AND MAINTENANCE:
11.1 TENANT'S REPAIRS AND MAINTENANCE OBLIGATIONS: Except for those
portions of the Building to be maintained by Landlord, as provided in Section
11.2 below, Tenant shall, at Tenant's sole cost and expense, keep and
maintain the Premises and the adjacent areas (including, without limitation,
any portion of the Common Areas used by Tenant or Tenant's Representatives)
in good, clean and safe condition and repair
11
to the satisfaction of Landlord including, but not limited to, repairing any
damage caused by Tenant or Tenant's Representatives and replacing any
property so damaged by Tenant or Tenant's Representatives. Without limiting
the generality of the foregoing, Tenant shall be solely responsible for
maintaining, repairing and replacing (a) all mechanical systems, heating,
ventilation and air conditioning systems, (b) all plumbing, electrical wiring
and equipment serving the Premises, (c) all interior lighting (including,
without limitation, light bulbs and/or ballasts) and exterior lighting
serving the Premises or adjacent to the Premises, (d) all glass, windows,
window frames, window casements, skylights; interior and exterior doors, door
frames and door closers, (e) all roll-up doors, ramps and dock equipment,
including without limitation, dock bumpers, dock plates, dock seals, dock
levelers and dock lights, (f) all tenant signage, (g) lifts for disabled
persons serving the Premises, (h) sprinkler systems, fire protection systems
and security systems, (i) all partitions, fixtures, equipment, interior
painting, and interior walls and floors of the Premises and every part
thereof (including, without limitation, any demising walls contiguous to any
portion of the Premises). Tenant's obligation to keep, maintain, preserve
and repair the Premises and the adjacent area shall specifically extend to
the cleanup and removal of any and all Hazardous Materials (hereafter
defined) occurring in, on or about the Premises.
11.2 REIMBURSABLE REPAIRS AND MAINTENANCE OBLIGATIONS: Subject to the
provisions of Sections 6 and 9 of this Lease and except for (i) the
obligations of Tenant set forth in Section 11.1 above, and (ii) the repairs
rendered necessary by the intentional or negligent acts or omissions of
Tenant or Tenant's Representatives, Landlord agrees, at Landlord's expense,
subject to reimbursement pursuant to Section 6 above, to keep in good repair
the plumbing and mechanical systems exterior to the Premises, any rail spur
and rail crossing, the roof, roof membranes, exterior walls of the Building,
signage (exclusive of tenant signage), and exterior electrical wiring and
equipment, exterior lighting, exterior glass, exterior doors/entrances and
door closers, exterior window casements, exterior painting of the Building
(exclusive of the Premises), and underground utility and sewer pipes outside
the exterior walls of the Building. For purposes of this Section 11.2, the
term "exterior" shall mean exterior to, and not serving the Premises. Unless
otherwise notified by Landlord, in writing, that Landlord has elected to
procure and maintain the following described contract(s), Tenant shall
procure and maintain (a) the heating, ventilation and air conditioning
systems preventative maintenance and repair contract(s); such contract(s) to
be on a bi-monthly or quarterly basis, as reasonably determined by Landlord,
and (b) the fire and sprinkler protection services and preventative
maintenance and repair contract(s) (including, without limitation, monitoring
services); such contract(s) to be on a bi-monthly or quarterly basis, as
reasonably determined by Landlord. Landlord reserves the right, but without
the obligation to do so, to procure and maintain (i) the heating, ventilation
and air conditioning systems preventative maintenance and repair contract(s),
and/or (ii) the fire and sprinkler protection services and preventative
maintenance and repair contract(s) (including, without limitation, monitoring
services). If Landlord so elects to procure and maintain any such
contract(s), Tenant will reimburse Landlord for the cost thereof in
accordance with the provisions of Section 6 above. If Tenant procures and
maintains any of such contract(s), Tenant will promptly deliver to Landlord a
true and complete copy of each such contract and any and all renewals or
extensions thereof, and each service report or other summary received by
Tenant pursuant to or in connection with such contract(s). Notwithstanding
anything to the contrary herein, capital expenditures incurred by Landlord
shall be amortized according to standard commercial real estate accounting
practices, but in no event over a period in excess of fifteen (15) years.
11.3 LANDLORD'S REPAIRS AND MAINTENANCE OBLIGATIONS: Except for
repairs rendered necessary by the intentional or negligent acts or omissions
of Tenant or Tenant's Representatives, Landlord agrees, at Landlord's sole
cost and expense, to (a) keep in good repair the structural portions of the
floors, foundations and exterior perimeter walls of the Building (exclusive
of glass and exterior doors), and (b) replace the structural portions of the
roof of the Building (excluding the roof membrane) as, and when, Landlord
determines such replacement to be necessary in Landlord's sole but reasonable
discretion.
11.4 TENANT'S FAILURE TO PERFORM REPAIRS AND MAINTENANCE OBLIGATIONS:
Except for normal maintenance and repair of the items described above, Tenant
shall have no right of access to or right to install any device on the roof
of the Building nor make any penetrations of the roof of the Building without
the express prior written consent of Landlord which consent shall not be
unreasonably withheld or delayed. If Tenant refuses or neglects to repair
and maintain the Premises and the adjacent areas properly as required herein
and to the reasonable satisfaction of Landlord, Landlord may, but without
obligation to do so, with five (5) business days prior notice to Tenant,
unless, (in Landlord's discretion,) the nature of the repair can not be
delayed five (5) business days, at any time make such repairs and/or
maintenance without Landlord having any liability to Tenant for any loss or
damage that may accrue to Tenant's merchandise, fixtures or other property,
or to Tenant's business by reason thereof, except to the extent any damage is
caused by the willful misconduct or gross negligence of Landlord or its
authorized agents and representatives. In the event Landlord makes such
repairs and/or maintenance, upon completion thereof Tenant shall pay to
Landlord, as additional rent, the Landlord's costs for making such repairs
and/or maintenance, plus the greater of one hundred and 00/100 dollars
($100.00) or five percent (5%) of the cost of the repair and/or maintenance
for overhead, upon presentation of a bill therefor, plus any Enforcement
Expenses. The obligations of Tenant hereunder shall survive the expiration
of the Term of this Lease or the earlier termination thereof. Tenant hereby
waives any right to repair at the expense of Landlord under any applicable
Laws now or hereafter in effect respecting the Premises.
12. INSURANCE:
12.1 TYPES OF INSURANCE: Tenant shall maintain in full force and
effect at all times during the Term of this Lease, at Tenant's sole cost and
expense, for the protection of Tenant and Landlord, as their interests may
appear, policies of insurance issued by a carrier or carriers reasonably
acceptable to Landlord and its lender(s) which afford the following
coverages: (i) worker's compensation: statutory limits; (ii) employer's
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liability, as required by law, with a minimum limit of $100,000 per employee
and $500,000 per claim; (iii) primary commercial general liability insurance
(occurrence form) providing coverage against any and all claims for bodily
injury and property damage occurring in, on or about the Premises arising out
of Tenant's and Tenant's Representatives' use and/or occupancy of the
Premises. Such insurance shall include coverage for blanket contractual
liability, fire damage, premises, personal injury, completed operations,
products liability, personal and advertising. Such insurance shall have a
combined single limit of not less than One Million Dollars ($1,000,000) per
occurrence with a Two Million Dollar ($2,000,000) aggregate limit and excess
umbrella insurance in the amount of Two Million Dollars ($2,000,000). If
Tenant has other locations which it owns or leases, the policy shall include
an aggregate limit per location endorsement. If necessary, as reasonably
determined by Landlord, Tenant shall provide for restoration of the aggregate
limit; (iv) comprehensive automobile liability insurance: a combined single
limit of not less than $2,000,000 per occurrence and insuring Tenant against
liability for claims arising out of the ownership, maintenance, or use of any
owned, hired or non-owned automobiles; (v) "all risk" property insurance,
including without limitation, sprinkler leakage, boiler and machinery
comprehensive form, if applicable, covering damage to or loss of any personal
property, trade fixtures, inventory, fixtures and equipment located in, on or
about the Premises, and in addition, coverage for flood, earthquake if
available at commercially reasonable rates, and business interruption of
Tenant, together with, if the property of Tenant's invitees is to be kept in
the Premises, warehouser's legal liability or bailee customers insurance for
the full replacement cost of the property belonging to invitees and located
in the Premises to the extent required by such customers pursuant to the
terms of the contract of carriage. Such insurance shall be written on a
replacement cost basis (without deduction for depreciation) in an amount
equal to one hundred percent (100%) of the full replacement value of the
aggregate of the items referred to in this subparagraph (v); and (vi) such
other insurance as Landlord deems reasonably necessary and prudent or as may
otherwise be required by any of Landlord's lenders or joint venture partners.
12.2 INSURANCE POLICIES: Insurance required to be maintained by Tenant
shall be written by companies (i) licensed to do business in the State of
California, (ii) domiciled in the United States of America, and (iii) having
a "General Policyholders Rating" of at least A:X (or such higher rating as
may be required by a lender having a lien on the Premises) as set forth in
the most current issue of "Best's Insurance Reports." Any deductible amounts
under any of the insurance policies required hereunder shall not exceed
commercially reasonable deductible amounts and shall be subject to Landlord's
reasonable approval, except that the deductible amounts for Tenant's property
damage insurance for Tenant's personal property, trade fixtures and inventory
described in Section 12.1(v) above shall be in such amounts as Tenant shall
determine in accordance with its standard corporate policies, it being
acknowledged, however, by Tenant that all such deductible amounts and self
insurance shall be deemed self-insured with full waiver of subrogation as set
forth below in Section 12.3. Tenant shall deliver to Landlord certificates of
insurance and true and complete copies of any and all endorsements required
herein for all insurance required to be maintained by Tenant hereunder at the
time of execution of this Lease by Tenant. Tenant shall, at least thirty (30)
days prior to expiration of each policy, furnish Landlord with certificates
of renewal or "binders" thereof. Each certificate shall expressly provide
that such policies shall not be cancelable or otherwise subject to
modification except after thirty (30) days prior written notice to the
parties named as additional insureds as required in this Lease (except for
cancellation for nonpayment of premium, in which event cancellation shall not
take effect until at least ten (10) days' notice has been given to Landlord).
Tenant shall have the right to provide insurance coverage which it is
obligated to carry pursuant to the terms of this Lease under a blanket
insurance policy, provided such blanket policy expressly affords coverage for
the Premises and for Landlord as required by this Lease.
12.3 ADDITIONAL INSUREDS AND COVERAGE: Landlord, any property
management company and/or agent of Landlord for the Premises, the Building,
the Lot or the Park, any lender(s) of Landlord having a lien against the
Premises, the Building, the Lot or the Park, and any joint venture partners
of Landlord shall be named as additional insureds under all of the policies
required in Section 12. l(iii) above. Additionally, such policies shall
provide for severability of interest. All insurance to be maintained by
Tenant shall, except for workers' compensation and employer's liability
insurance, be Primary, without right of contribution from insurance
maintained by Landlord. Any umbrella liability policy or excess liability
policy (which shall be in "following form") shall provide that if the
underlying aggregate is exhausted, the excess coverage will drop down as
primary insurance. The limits of insurance maintained by Tenant shall not
limit Tenant's liability under this Lease. It is the parties' intention that
the insurance to be procured and maintained by Tenant as required herein
shall provide coverage for any and all damage or injury arising from or
related to Tenant's operations of its business and/or Tenant's or Tenant's
Representatives' use of the Premises and/or any of the areas within the Park,
whether such events occur within the Premises (as described in Exhibit A
hereto) or in any other areas of the Park. It is not contemplated or
anticipated by the parties that the aforementioned risks of loss be borne by
Landlord's insurance carriers, rather it is contemplated and anticipated by
Landlord and Tenant that such risks of loss be borne by Tenant's insurance
carriers pursuant to the insurance policies procured and maintained by Tenant
as required herein.
12.4 FAILURE OF TENANT TO PURCHASE AND MAINTAIN INSURANCE: In the
event Tenant does not purchase the insurance required in this Lease or keep
the same in full force and effect throughout the Term of this Lease
(including any renewals or extensions), Landlord may, but without obligation
to do so, purchase the necessary insurance and pay the premiums therefor. If
Landlord so elects to purchase such insurance, Tenant shall promptly pay to
Landlord as Additional Rent, the amount so paid by Landlord, upon Landlord's
demand therefor. In addition, Landlord may recover from Tenant and Tenant
agrees to pay, as Additional Rent, any and all Enforcement Expenses and
damages which Landlord may sustain by reason of Tenant's failure to obtain
and maintain such insurance. If Tenant fails to maintain any insurance
required in this Lease, Tenant shall be liable for all losses, damages and
costs resulting from such failure.
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12.5 LANDLORD'S INSURANCE: The initial Landlord shall obtain and keep
in force during the term of this Lease a policy of combined single limit
bodily injury and property damage insurance, insuring Landlord, against
liability for bodily injury and property damage. Landlord shall obtain and
keep in force during the term of this Lease a policy or policies of insurance
covering loss or damage to the Building, and the Tenant Improvements to the
extent of Landlord's actual interest therein, but not including Tenant's
Property or alterations or improvements made to the Premises by or on behalf
of Tenant (excluding the Tenant Improvements as limited above), in an amount
of eighty percent (80%) of the full replacement value thereof excluding land
costs, excavation costs, footings and foundations. The foregoing insurance
shall provide protection against all perils within the classification of
fire, extended coverage (as such term is used in the insurance industry),
vandalism, malicious mischief, and to the extent available at commercially
reasonable rates (as solely determined by Landlord), flood and/or earthquake
insurance. The foregoing insurance policies may be procured and carried
pursuant to a blanket policy of insurance covering additional properties
other than the Building. Landlord's cost of obtaining and maintaining such
insurance policies are included as one of the items comprising the Operating
Expenses.
13. WAIVER OF SUBROGATION: Landlord and Tenant hereby mutually waive their
respective rights of recovery against each other for any loss of, or damage
to, either parties' property to the extent that such loss or damage is
insured by an insurance policy required to be in effect at the time of such
loss or damage. Each party,shall obtain any special endorsements, if
required by its insurer whereby the insurer waives its rights of subrogation
against the other party. This provision is intended to waive fully, and for
the benefit of the parties hereto, any rights and/or claims which might give
rise to a right of subrogation in favor of any insurance carrier. The
coverage obtained by Tenant pursuant to Section 12 of this Lease shall
include, without limitation, a waiver of subrogation endorsement attached to
the certificate of insurance. The provisions of this Section 13 shall not
apply in those instances in which such waiver of subrogation would invalidate
such insurance coverage or would cause either party's insurance coverage to
be voided or otherwise uncollectible.
14. LIMITATION OF LIABILITY AND INDEMNITY: Except for damage resulting from
the sole gross negligence or willful misconduct of Landlord or its authorized
representatives, Tenant agrees to protect, defend (with counsel reasonably
acceptable to Landlord) and hold Landlord and Landlord's lender(s), partners,
employees, representatives, legal representatives, successors and assigns
(collectively, the "Indemnitees") harmless and indemnify the Indemnitees from
and against all liabilities, damages, claims, losses, judgments, charges and
expenses (including reasonable attorneys' fees, costs of court and expenses
necessary in the prosecution or defense of any litigation including the
enforcement of this provision) arising from or in any way related to,
directly or indirectly, Tenant's or Tenant's Representatives' use of the
Premises, Building and/or the Park, or the conduct of Tenant's business, or
from any activity, work or thing done, permitted or suffered by Tenant in or
about the Premises, or in any way connected with the Premises or with the
improvements or personal property therein, including, but not limited to, any
liability for injury to person or property of Tenant, Tenant's
Representatives, or third party persons. Tenant agrees that the obligations
of Tenant herein shall survive the expiration or earlier termination of this
Lease.
Except for damage resulting from the sole active gross negligence or
willful misconduct of Landlord or its authorized representatives, Landlord
shall not be liable to Tenant for any loss or damage to Tenant or Tenant's
property, for any injury to or loss of Tenant's business or for any damage or
injury to any person from any cause whatsoever, including, but not limited
to, any acts, errors or omissions by or on behalf of any other tenants or
occupants of the Building and/or the Park. Tenant shall not, in any event or
circumstance, be permitted to offset or otherwise credit against any payments
of Rent required herein for matters for which Landlord may be liable
hereunder. Landlord and its authorized representatives shall not be liable
for any interference with light or air, or for any latent defect in the
Premises or the Building. To the fullest extent permitted by law except for
damage resulting from the sole active gross negligence or willful misconduct
of Landlord or its authorized representatives, Tenant agrees that neither
Landlord nor any of Landlord's lender(s), partners, employees,
representatives, legal representatives, successors and assigns shall at any
time or to any extent whatsoever be liable, responsible or in any way
accountable for any loss, liability, injury, death or damage to persons or
property which at any time may be suffered or sustained by Tenant or by any
person(s) whomsoever who may at any time be using, occupying or visiting the
Premises, the Building or the Park.
15. ASSIGNMENT AND SUBLEASING:
15.1 PROHIBITION: Except as expressly set forth herein with respect to
a Permitted Transferee, Tenant shall not assign, mortgage, hypothecate,
encumber, grant any license or concession, pledge or otherwise transfer this
Lease (collectively, "assignment"), in whole or in part, whether voluntarily
or involuntarily or by operation of law, nor sublet or permit occupancy by
any person other than Tenant of all or any portion of the Premises without
first obtaining the prior written consent of Landlord, which consent shall
not be unreasonably withheld or delayed. Tenant hereby agrees that Landlord
may withhold its consent to any proposed sublease or assignment if the
proposed sublessee or assignee or its business is subject to compliance with
additional requirements of the ADA (defined below) beyond those requirements
which are applicable to Tenant, unless the proposed sublessee or assignee
shall (a) first deliver plans and specifications for complying with such
additional requirements and obtain Landlord's written consent thereto, which
consent shall not be unreasonably withheld or delayed and (b) comply with all
Landlord's conditions for or contained in such consent, including without
limitation, requirements for security to assure the lien-free completion of
such improvements. If Tenant seeks to sublet or assign all or any portion of
the Premises, Tenant shall deliver to Landlord at least twenty (20) days
prior to the proposed commencement of the sublease or assignment (the
"Proposed Effective Date") the following: (i) the name of the proposed
assignee or sublessee; (ii) such information as to such assignee's or
sublessee's financial responsibility and standing as Landlord may reasonably
require; and (iii) the aforementioned plans and specifications, if any.
Within ten (10) days after Landlord's receipt of a written
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request from Tenant that Tenant seeks to sublet or assign all or any portion
of the Premises, Landlord shall deliver to Tenant a copy of Landlord's
standard form of sublease or assignment agreement (as applicable), which
instrument shall be utilized for each proposed sublease or assignment (as
applicable) or another form acceptable to Landlord, and such instrument shall
include a provision whereby the assignee or sublessee assumes all of Tenant's
obligations hereunder and agrees to be bound by the terms hereof. As
Additional Rent hereunder, Tenant shall pay to Landlord a fee in the amount
of five hundred dollars ($500) plus Tenant shall reimburse Landlord for
actual legal and other expenses incurred by Landlord in connection with any
actual or proposed assignment or subletting. In the event the sublease (1)
by itself or taken together with prior sublease(s) except with respect to a
Permitted Transferee is for a term which by itself or taken together with
prior or other subleases is for the period remaining in the term of this
Lease as of the time of the Proposed Effective Date, then Landlord shall have
the right, to be exercised by giving written notice to Tenant, to recapture
the space described in the sublease. If such recapture notice is given, it
shall serve to terminate this Lease with respect to the proposed sublease
space, or, if the proposed sublease space covers all the Premises, it shall
serve to terminate the entire term of this Lease in either case, as of the
Proposed Effective Date. However, no termination of this Lease with respect
to part or all of the Premises shall become effective without the prior
written consent, where necessary, of the holder of each deed of trust
encumbering the Premises or any part thereof. If this Lease is terminated
pursuant to the foregoing with respect to less than the entire Premises, the
Rent shall be adjusted on the basis of the proportion of square feet retained
by Tenant to the square feet originally demised and this Lease as so amended
shall continue thereafter in full force and effect. Each permitted assignee
or sublessee, including without limitation, a Permitted Transferee shall
assume and be deemed to assume this Lease and shall be and remain liable
jointly and severally with Tenant for payment of Rent and for the due
performance of, and compliance with all the terms, covenants, conditions and
agreements 'herein contained on Tenant's part to be performed or complied
with, for the term of this Lease. Notwithstanding the preceding sentence, in
the event only a portion of the Premises is subleased, each sublessee shall
assume the Lease and shall be and remain liable, jointly and severally with
Tenant for the payment of Rent on that portion of the Premises subleased. No
assignment or subletting shall affect the continuing primary liability of
Tenant (which, following assignment, shall be joint and several with the
assignee), and Tenant shall not be released from performing any of the terms,
covenants and conditions of this Lease. Tenant hereby acknowledges and
agrees that it understands that Landlord's accounting department may process
and accept Rent payments without verifying that such payments are being made
by Tenant, a permitted sublessee or a permitted assignee in accordance with
the provisions of this Lease. Although such payments may be processed and
accepted by such accounting department personnel, any and all actions or
omissions by the personnel of Landlord's accounting department shall not be
considered as acceptance by Landlord of any proposed assignee or sublessee
nor shall such actions or omissions be deemed to be a substitute for the
requirement that Tenant obtain Landlords prior written consent to any such
subletting or assignment, and any such actions or omissions by the personnel
of Landlord's accounting department shall not be considered as a voluntary
relinquishment by Landlord of any of its rights hereunder nor shall any
voluntary relinquishment of such rights be inferred therefrom. For purposes
hereof, in the event Tenant is a corporation, partnership, joint venture,
trust or other entity other than a natural person, any change in the direct
or indirect ownership of Tenant (whether pursuant to one or more transfers
other than any public trading of the outstanding shares (stock) of Tenant
which does not result in a change of the management and control of Tenant)
which results in a change of more than fifty percent (50%) in the direct or
indirect ownership of Tenant shall be deemed to be an assignment within the
meaning of this Section 15 and shall be subject to all the provisions hereof.
Except for a permissible assignment to a Permitted Transferee, any and all
options, first rights of refusal, tenant improvement allowances and other
similar rights granted to Tenant in this Lease, if any, shall not be
assignable by Tenant unless expressly authorized in writing by Landlord.
Notwithstanding anything to the contrary contained herein, so long as Tenant
delivers to Landlord (1) at least fifteen (15) business days after written
notice of its intention to assign or sublease the Premises to any Permitted
Transferee, which notice shall set forth the name of the Permitted
Transferee, (2) a copy of the proposed agreement pursuant to which such
assignment or sublease shall be effectuated, and (3) such other information
concerning the Permitted Transferee as Landlord may reasonably require,
including without limitation, information regarding any change in the
proposed use of any portion of the Premises and any financial information
with respect to such Permitted Transferee, and so long as Landlord approves,
in writing, of any change in the proposed use of the subject portion of the
Premises, then Tenant may assign this Lease or sublease any portion of the
Premises (X) to any Permitted Transferee, or (Y) in connection with any
merger, consolidation or sale of substantially all of the assets of Tenant,
(collectively "Permitted Transferee") without having to obtain the prior
written consent of Landlord thereto. For purposes of this Lease the term
"Permitted Transferee" shall mean and refer to any corporation or entity
which controls, is controlled by or is under common control with Tenant, the
event of any transfer of more than 50% of the stock of Tenant over a publicly
traded stock exchange since Tenant is a publicly traded company, as all of
such terms are customarily used in the industry, and with an equal or greater
net worth as Tenant has as of the proposed transfer date. Any assignment to
a Permitted Transferee shall in no way relieve Tenant of any liability Tenant
may have under this Lease and such assignee or sublessee shall be jointly and
severally liable with Tenant hereunder.
15.2 EXCESS SUBLEASE RENTAL OR ASSIGNMENT CONSIDERATION: In the event
of any sublease or assignment of all or any portion of the Premises, except
for Permitted Transferee, where the rent or other consideration provided for
in the sublease or assignment either initially or over the term of the
sublease or assignment exceeds the Rent or pro rata portion of the Rent, as
the case may be, for such space reserved in the Lease, Tenant shall pay the
Landlord monthly, as Additional Rent, at the same time as the monthly
installments of Rent are payable hereunder, fifty percent (50%) of the excess
of each such payment of rent or other consideration in excess of the Rent
called for hereunder, after deducting all cost incurred by Tenant in
obtaining such assignee or sublessee, including, without limitation,
brokerage commission, attorney's fees, advertising expenses and rental
concessions.
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15.3 WAIVER: Notwithstanding any assignment or sublease, or any
indulgences, waivers or extensions of time granted by Landlord to any
assignee or sublessee, or failure by Landlord to take action against any
assignee or sublessee, Tenant waives notice of any default of any assignee or
sublessee and agrees that Landlord may, at its option, proceed against Tenant
without having taken action against or joined such assignee or sublessee,
except that Tenant shall have the benefit of any indulgences, waivers and
extensions of time granted to any such assignee or sublessee.
16. AD VALOREM TAXES: Prior to delinquency, Tenant shall pay all taxes and
assessments levied upon trade fixtures, alterations, additions, improvements,
inventories and personal property located and/or installed on or in the
Premises by, or on behalf of, Tenant; and if requested by Landlord, Tenant
shall promptly deliver to Landlord copies of receipts for payment of all such
taxes and assessments. To the extent any such taxes are not separately
assessed or billed to Tenant, Tenant shall pay the amount thereof as invoiced
by Landlord.
17. SUBORDINATION: Without the necessity of any additional document being
executed by Tenant for the purpose of effecting a subordination, and at the
election of Landlord or any bona fide mortgagee or deed of trust beneficiary
with a lien on all or any portion of the Premises or any ground lessor with
respect to the land of which the Premises are a part, the rights of Tenant
under this Lease and this Lease shall be subject and subordinate at all times
to: (i) all ground leases or underlying leases which may now exist or
hereafter be executed affecting the Building or the land upon which the
Building is situated or both, and (ii) the lien of any mortgage or deed of
trust which may now exist or hereafter be executed in any amount for which
the Building, the Lot, ground leases or underlying leases, or Landlord's
interest or estate in any of said items is specified as security.
Notwithstanding the foregoing, Landlord or any such ground lessor, mortgagee,
or any beneficiary shall have the right to subordinate or cause to be
subordinated any such ground leases or underlying leases or any such liens to
this Lease. If any ground lease or underlying lease terminates for any
reason or any mortgage or deed of trust is foreclosed or a conveyance in lieu
of foreclosure is made for any reason, Tenant shall, notwithstanding any
subordination and upon the request of such successor to Landlord, attorn to
and become the Tenant of the successor in interest to Landlord, provided such
successor in interest will not disturb Tenant's use, occupancy or quiet
enjoyment of the Premises so long as Tenant is not in default of the terms
and provisions of this Lease. The successor in interest to Landlord
following foreclosure, sale or deed in lieu thereof shall not be (a) liable
for any act or omission of any prior lessor or with respect to events
occurring prior to acquisition of ownership; (b) subject to any offsets or
defenses which Tenant might have against any prior lessor; (c) bound by
prepayment of more than one (1) month's Rent; or (d) liable to Tenant for any
Security Deposit not actually received by such successor in interest to the
extent any portion or all of such Security Deposit has not already been
forfeited by, or refunded to, Tenant. Landlord shall be liable to Tenant for
all or any portion of the Security Deposit not forfeited by, or refunded to
Tenant, until and unless Landlord transfers such Security Deposit to the
successor in interest. Tenant covenants and agrees to execute (and
acknowledge if required by Landlord, any lender or ground lessor) and
deliver, within ten (10) days of a demand or request by Landlord and in the
form requested by Landlord, ground lessor, mortgagee or beneficiary, any
additional documents evidencing the priority or subordination of this Lease
with respect to any such ground leases or underlying leases or the lien of
any such mortgage or deed of trust. Tenant's failure to timely execute and
deliver such additional documents shall, at Landlord's option, constitute a
material default hereunder. It is further agreed that Tenant shall indemnify
Landlord from and against any loss, cost, damage or expense, arising
directly, from any failure of Tenant to execute or deliver to Landlord any
such additional documents, together with any and all Enforcement Expenses.
Tenant's agreement to subordinate this Lease to any future ground or
underlying lease or any future deed of trust or mortgage pursuant to the
foregoing provisions of the Section 17 is conditioned upon Landlord
delivering to Tenant from the lessor under such future ground or underlying
lease or the holder of any such mortgage or deed of trust, a non-disturbance
agreement agreeing, among other things, that Tenant's right to possession of
the Premises pursuant to the terms and conditions of this Lease shall not be
disturbed provided Tenant is not in default under this Lease beyond the
applicable notice and cure periods hereunder. Landlord has advised Tenant
that at sometime after the date on which this Lease is executed by the
parties Landlord will obtain a permanent loan which will be secured by a lien
of a deed of trust against the Premises, the Building and/or the Lot.
Landlord and Tenant agree that if Landlord at any time during the term of the
Lease causes the Premises, the Building and/or the Lot to be encumbered by a
mortgage, deed of trust or similar security instrument and the Lease is
subordinate to such encumbrance or the beneficiary thereof requires this
Lease and Tenant's rights and interest in this Lease to be subordinate to
such encumbrance or lien, Landlord will provide to Tenant a subordination,
nondisturbance and_attornment agreement from such beneficiary or lien-holder
in form reasonably acceptable to Landlord, the subject beneficiary and Tenant.
18. RIGHT OF ENTRY: Tenant grants Landlord or its agents the right to enter
the Premises at all reasonable times with forty-eight (48) hours prior
written notice, if possible, for purposes of inspection, exhibition, posting
of notices, repair or alteration. At Landlord's option, Landlord shall at
all times have and retain a key with which to unlock all the doors in, upon
and about the Premises, excluding Tenant's vaults and safes. It is further
agreed that Landlord shall have the right to use any and all means Landlord
deems necessary to enter the Premises in an emergency. Landlord shall also
have the right to,place "for rent" and/or "for sale" signs on the outside of
the Premises during the last twelve (12) months of the lease term. Tenant
hereby waives any claim from damages or for any injury or inconvenience to or
interference with Tenant's business, or any other loss occasioned thereby
except for any claim for any of the foregoing arising out of the sole gross
negligence or willful misconduct of Landlord or its authorized
representatives.
19. ESTOPPEL CERTIFICATE: Landlord and Tenant shall execute (and
acknowledge if required by any lender, ground lessor, or Other third party)
and deliver to the other party, within not less than ten (10) days after
Landlord or Tenant, as applicable, provides such to the other party, a
statement in writing certifying that this Lease is unmodified and in full
force and effect (or, if modified, stating the nature of such modification),
the
16
date to which the Rent and other charges are paid in advance, if any,
acknowledging that there are not, to such party's knowledge, any uncured
defaults on the part of the other party hereunder or specifying such defaults
as are claimed, and such other matters as Landlord or Tenant, as applicable,
may reasonably require. Any such statement may be conclusively relied upon
by the party requesting such statement and any prospective purchaser or
encumbrancer of the Premises or other third party. Landlord or Tenant's, as
applicable, failure to deliver such statement within such time shall be
conclusive upon the party which failed to deliver the certificate that (a)
this Lease is in full force and effect, without modification except as may be
represented by such party; (b) there are no uncured defaults in the other
party's performance; and (c) not more than one month's Rent has been paid in
advance. Failure by Tenant to so deliver such certified estoppel certificate
shall be a default of the provisions of this Lease. Tenant shall indemnify
Landlord from and against any loss, cost, damage or expense, arising
directly, from any failure of Tenant to execute or deliver to Landlord any
such certified estoppel certificate, together with any and all Enforcement
Expenses.
20. TENANT'S DEFAULT: The occurrence of any one or more of the following
events shall, at Landlord's option, constitute a default and breach of this
Lease by Tenant:
20.1 The vacation or abandonment of the Premises by Tenant for a
period of ten (10) consecutive days in combination with Tenant's failure to
pay Rent or any other sum due to Landlord, or the vacation of the Premises by
Tenant which would cause any insurance policy to be invalidated or otherwise
lapse. Tenant agrees to notice and service of notice as provided for in this
Lease and waives any right to any other or further notice or service of
notice which Tenant. may have under any statute or law now or hereafter in
effect;
20.2 The failure by Tenant to make any payment of Rent, Additional
Rent or any other payment required hereunder within five (5) days after the
delivery by Landlord of written notice that such payment is past due. Tenant
agrees that such written notice by Landlord shall serve as the statutorily
required notice under the Law (including without limitation, any unlawful
detainer statutes), and Tenant further agrees to notice and service of notice
as provided for in this Lease and waives any right to any other or further
notice or service of notice which Tenant may have under any statute or law
now or hereafter in effect;
20.3 The failure by Tenant to observe, perform or comply with any of
the conditions, covenants or provisions of this Lease (except failure to make
any payment of Rent and/or Additional Rent) and such failure is not cured
within the time period required under the provisions of this Lease. If such
failure is susceptible of cure but cannot reasonably be cured within the
aforementioned time period (if any), as determined solely but reasonably by
Landlord, Tenant shall promptly commence the cure of such failure and
thereafter diligently prosecute such cure to completion within the time
period specified by Landlord in any written notice regarding such failure as
may be delivered to Tenant by Landlord. In no event or circumstance shall
Tenant have more than fifteen (15) days to complete any such cure, unless
otherwise expressly agreed to in writing by Landlord (in Landlord's sole
discretion), or the nature of such default shall require more than fifteen
(15) days to cure;
20.4 The making of a general assignment by Tenant for the benefit of
creditors, the filing of a voluntary petition by Tenant or the filing of an
involuntary petition by any of Tenant's creditors seeking the rehabilitation,
liquidation, or reorganization of Tenant under any law relating to
bankruptcy, insolvency or other relief of debtors and, in the case of an
involuntary action, the failure to remove or discharge the same within sixty
(60) days of such filing, the appointment of a receiver or other custodian to
take possession of substantially all of Tenant's assets or this leasehold,
Tenant's insolvency or inability to pay Tenant's debts or failure generally
to pay Tenant's debts when due, any court entering a decree or order
directing the winding up or liquidation of Tenant or of substantially all of
Tenant's assets, Tenant taking any action toward the dissolution or winding
up of Tenant's affairs, the cessation or suspension of Tenant's use of the
Premises, or the attachment, execution or other judicial seizure of
substantially all of Tenant's assets or this leasehold (or any involuntary
action against Tenant, Tenant shall have sixty (60) days to discharge such
action);
20.5 Tenant's use or storage of Hazardous Materials in, on or about
the Premises, the Building, the Lot and/or the Park other than as expressly
permitted by the provisions of Section 29 below;
20.6 The making of any material misrepresentation or omission by
Tenant in any materials delivered by or on behalf of Tenant to Landlord
pursuant to this Lease; or
21. REMEDIES FOR TENANT'S DEFAULT:
21.1 LANDLORD'S RIGHTS: In the event of Tenant's default or breach of
the Lease, which default or breach is not cured within the applicable cure
period, Landlord may terminate Tenant's right to possession of the Premises
by any lawful means in which case upon delivery of written notice by Landlord
this Lease shall terminate on the date specified by Landlord in such notice
and Tenant shall immediately surrender possession of the Premises to
Landlord. In addition, the Landlord shall have the immediate right of
re-entry whether or not this Lease is terminated, and if this right of
re-entry is exercised following abandonment of the Premises by Tenant,
Landlord may consider any personal property belonging to Tenant and left on
the Premises to also have been abandoned. No re-entry or taking possession
of the Premises by Landlord pursuant to this Section 21 shall be construed as
an election to terminate this Lease unless a written notice of such intention
is given to Tenant. If Landlord relets the Premises or any portion thereof,
(i) Tenant shall be liable immediately to Landlord for all reasonable costs
Landlord incurs in reletting the Premises or any part thereof, including,
without limitation, broker's commissions, expenses of cleaning, and repairing
the Premises and other similar costs (collectively, the "Reletting Costs"),
and (ii) the rent received by Landlord from such reletting shall be applied
to the payment of, first, any indebtedness from Tenant to Landlord other than
Base Rent, Operating
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Expenses, Tax Expenses, Common Area Utility Costs, and Utility Expenses;
second, all reasonable costs including maintenance, incurred by Landlord in
reletting; and, third, Base Rent, Operating Expenses, Tax Expenses, Common
Area Utility Costs, Utility Expenses, and all other sums due under this
Lease. Any and all of the Reletting Costs shall be fully chargeable to
Tenant and shall not be prorated or otherwise amortized in relation to any
new lease for the Premises or any portion thereof. After deducting the
payments referred to above, any sum remaining from the rental Landlord
receives from reletting shall be held by Landlord and applied in payment of
future Rent as Rent becomes due under this Lease. In no event shall Tenant
be entitled to any excess rent received by Landlord. Reletting may be for a
period shorter or longer than the remaining term of this Lease. No act by
Landlord other than giving written notice to Tenant shall terminate this
Lease. Acts of maintenance, efforts to relet the Premises or the appointment
of a receiver on Landlord's initiative to protect Landlord's interest under
this Lease shall not constitute a termination of Tenant's right to
possession. So long as this Lease is not terminated, Landlord shall have the
right to remedy any default of Tenant, to maintain or repair the Premises, to
cause a receiver to be appointed to administer the Premises and new or
existing subleases and to add to the Rent payable hereunder all of Landlord's
reasonable costs in so doing, with interest at the maximum rate permitted by
law from the date of such expenditure.
21.2 DAMAGES RECOVERABLE: If Tenant breaches this Lease and abandons
the Premises before the end of the Term, or if Tenant's right to possession
is terminated by Landlord because of a breach or default of the Lease, then
in either such case, Landlord may recover from Tenant all damages suffered by
Landlord as a result of Tenant's failure to perform its obligations
hereunder, including, but not limited to, the cost of any unamortized Tenant
Improvements constructed by or on behalf of Tenant pursuant to Exhibit B
hereto, the portion of any broker's or leasing agent's commission incurred
with respect to the leasing of the Premises to Tenant for the balance of the
Term of the Lease remaining after the date on which Tenant is in default of
its obligations hereunder, and all Reletting Costs, and the worth at the time
of the award (computed in accordance with paragraph (3) of Subdivision (a) of
Section 1951.2 of the California Civil Code) of the amount by which the Rent
then unpaid hereunder for the balance of the Lease Term exceeds the amount of
such loss of Rent for the same period which Tenant proves could be reasonably
avoided by Landlord and in such case, Landlord prior to the award, may relet
the Premises for the purpose of mitigating damages suffered by Landlord
because of Tenant's failure to perform its obligations hereunder; provided,
however, that even though Tenant has abandoned the Premises following such
breach, this Lease shall nevertheless continue in full force and effect for
as long as Landlord does not terminate Tenant's right of possession, and
until such termination, Landlord shall have the remedy described in Section
1951.4 of the California Civil Code (Landlord may continue this Lease in
effect after Tenant's breach and abandonment and recover Rent as it becomes
due, if Tenant has the right to sublet or assign, subject only to reasonable
limitations) and may enforce all its rights and remedies under this Lease,
including the right to recover the Rent from Tenant as it becomes due
hereunder. The "worth at the time of the award" within the meaning of
Subparagraphs (a)(1) and (a)(2) of Section 1951.2 of the California Civil
Code shall be computed by allowing interest at the rate of ten percent (10%)
per annum. Tenant waives redemption or relief from forfeiture under
California Code of Civil Procedure Sections 1174 and 1179, or under any other
present or future law, in the event Tenant is evicted or Landlord takes
possession of the Premises by reason of any default of Tenant hereunder.
21.3 RIGHTS AND REMEDIES CUMULATIVE: The foregoing rights and remedies
of Landlord are not exclusive; they are cumulative in addition to any rights
and remedies now or hereafter existing at law, in equity by statute or
otherwise, or to any equitable remedies Landlord may have, and to any
remedies Landlord may have under bankruptcy laws or laws affecting creditor's
rights generally. In addition to all remedies set forth above, if Tenant
defaults or otherwise breaches this Lease, any and all Base Rent waived by
Landlord under Section 3 above, prorated for the remaining portion of the
Lease shall be immediately due and payable to Landlord and all options
granted to Tenant hereunder shall automatically terminate, unless otherwise
expressly agreed to in writing by Landlord.
21.4 WAIVER OF A DEFAULT: The waiver by Landlord or Tenant of any
default or breach of any provision of this Lease shall not be deemed or
construed a waiver of any other breach or default by Tenant or Landlord
respectively, hereunder or of any subsequent breach or default of this Lease,
except for the default specified in the waiver.
22. HOLDING OVER: If Tenant holds possession of the Premises after the
expiration of the Term of this Lease with Landlord's consent, Tenant shall
become a tenant from month-to-month upon the terms and provisions of this
Lease, provided the monthly Base Rent during such hold over period shall be
150% of the Base Rent due on the last month of the Lease Term, payable in
advance on or before the first day of each month. Acceptance by Landlord of
the monthly Base Rent without the additional .fifty percent (50%) increase of
Base Rent shall not be deemed or construed as a waiver by Landlord of any of
its rights to collect the increased amount of the Base Rent as provided
herein at any time. Such month-to-month tenancy shall not constitute a
renewal or extension for any further term. All options, if any, granted
under the terms of this Lease shall be deemed automatically terminated and be
of no force or effect during said month-to-month tenancy. Tenant shall
continue in possession until such tenancy shall be terminated by either
Landlord or Tenant giving written notice of termination to the other party at
least thirty (30) days prior to the effective date of termination. This
paragraph shall not be construed as Landlord's permission for Tenant to hold
over. Acceptance of Base Rent by Landlord following expiration or termination
of this Lease shall not constitute a renewal of this Lease.
23. LANDLORD'S DEFAULT: Landlord shall not be deemed in breach or default
of this Lease unless Landlord fails within a reasonable time to perform an
obligation required to be performed by Landlord hereunder. For purposes of
this provision, a reasonable time shall not be less than thirty (30) days
after receipt by Landlord of written notice specifying the nature of the
obligation Landlord has not performed; provided, however, that
18
if the nature of Landlord's obligation is such that more than thirty (30)
days, after receipt of written notice, is reasonably necessary for its
performance, then Landlord shall not be in breach or default of this Lease if
performance of such obligation is commenced within such thirty (30) day
period and thereafter diligently pursued to completion.
24. PARKING: Tenant shall have a license to use the number of undesignated
and nonexclusive parking spaces set forth on Page 1. Landlord shall exercise
reasonable efforts to insure that such spaces are available to Tenant for its
use, but Landlord shall not be required to enforce Tenant's right to use the
same. So long as Tenant does not disrupt other tenants' conduct of their
business within the Park and Tenant does not otherwise breach the quiet
enjoyment of such other tenants. Tenant may take such reasonable measures to
enforce its license to use such undesignated parking spaces.
25. SALE OF PREMISES: In the event of any sale of the Premises by Landlord
or the cessation otherwise of Landlord's interest therein, Landlord shall be
and is hereby entirely released from any and all of its obligations to
perform or further perform under this Lease and from all liability hereunder
as of the date of such sale except for obligations of Landlord under this
Lease arising prior to any such sale or transfer or the Premises;
and.the.purchaser, at such sale or any subsequent sale of the Premises shall
be deemed, without any further agreement between the parties or their
successors in interest or between the parties and any such purchaser, to have
assumed and agreed to carry out any and all of the covenants and obligations
of the Landlord under this Lease. For purposes of this Section 25, the term
"Landlord" means only the owner and/or agent of the owner as such parties
exist as of the date on which Tenant executes this Lease. A ground lease or
similar long term lease by Landlord of the entire Building, of which the
Premises are a part, shall be deemed a sale within the meaning of this
Section 25. Tenant agrees to attorn to such new owner provided such new
owner does not disturb Tenant's use, occupancy or quiet enjoyment of the
Premises so long as Tenant is not in default of any of the provisions of this
Lease.
26. WAIVER: No delay or omission in the exercise of any right or remedy of
either party hereto on any default by the other party shall impair such a
right or remedy or be construed as a waiver. The subsequent acceptance of
Rent by Landlord after breach by Tenant of any covenant or term of this Lease
shall not be deemed a waiver of such breach, other than a waiver of timely
payment for the particular Rent payment involved, and shall not prevent
Landlord from maintaining an unlawful detainer or other action based on such
breach. No payment by Tenant or receipt by Landlord of a lesser amount than
the monthly Rent and other sums due hereunder shall be deemed to be other
than on account of the earliest Rent or other sums due, nor shall any
endorsement or statement on any check or accompanying any check or payment be
deemed an accord and satisfaction; and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance of such
Rent or other sum or pursue any other remedy provided in this Lease. No
failure, partial exercise or delay on the part of the either party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof.
27. CASUALTY DAMAGE:
27.1 CASUALTY. If the Premises or any part thereof (excluding any
alterations or improvements installed by or for the benefit of Tenant) shall
be damaged or destroyed by fire or other casualty, Tenant shall give
immediate written notice thereof to Landlord. Within thirty (30) days after
receipt by Landlord of such notice, Landlord shall notify Tenant, in writing,
whether the necessary repairs can reasonably be made: (a) within one hundred
eighty (180) days; or (b) in more than one hundred eighty (180) days, from
the date of destruction.
27.1.1 MINOR INSURED DAMAGE. If the Premises are damaged only to
such extent that repairs, rebuilding and/or restoration can be reasonably
completed within one hundred eighty (180) days from the date of destruction,
this Lease shall not terminate and, provided that insurance proceeds are
available to fully repair the damage, Landlord shall repair the Premises to
substantially the same condition that existed prior to the occurrence of such
casualty, except Landlord shall not be required to rebuild, repair, or
replace any alterations or improvements installed by or for the benefit of
Tenant or any part of Tenant's furniture, furnishings or fixtures and
equipment removable by Tenant. The Rent payable hereunder, from the date of
destruction until the Premises are fully restored, shall be abated
proportionately to the extent that Tenant's use of the Premises is impaired.
27.1.2 MAJOR INSURED DAMAGE. If the Premises are damaged to such
extent that repairs, rebuilding and/or restoration cannot be reasonably
completed within one hundred eighty (180) days, then either Landlord or
Tenant may terminate this Lease by giving written notice within twenty (20)
days after notice from Landlord regarding the time period of repair. If
either party notifies the other of its intention to so terminate the Lease,
then this Lease shall terminate and the Rent shall be abated from the date
Tenant vacates the Premises. If neither party elects to terminate this
Lease, Landlord shall promptly commence and diligently prosecute to
completion the repairs to the Premises, provided insurance proceeds are
available '_o fully repair the damage (except that Landlord shall not be
required to rebuild, repair, or replace any alterations or improvements
installed by or for the benefit of Tenant or any part of Tenant's furniture,
furnishings or fixtures and equipment removable by Tenant). During the time
when Landlord is prosecuting such repairs to completion, the Rent payable
hereunder, from the date of destruction until the Premises are fully
restored, shall be abated proportionately to the extent that Tenant's use of
the Premises is impaired.
27.1.3 DAMAGE NEAR END OF TERM. Notwithstanding anything to the
contrary contained in this Lease except for the provisions of Section 27.2
below, if the Premises are damaged or destroyed during the last year of then
applicable term of this Lease, Landlord or Tenant may, at its option, cancel
and terminate
19
this Lease by giving written notice to the other party of its election to do
so within thirty (30) days after receipt by Landlord of notice from Tenant of
the occurrence of such casualty. If Landlord or Tenant so elects to
terminate this Lease, all rights of Tenant hereunder shall cease and
terminate ten (10) days after the other party's receipt of such notice.
27.2 TENANT'S OR TENANT'S REPRESENTATIVE'S FAULT. If any portion of
the Premises is damaged or destroyed due to the fault, negligence (active or
passive) or breach of this Lease by Tenant or any of Tenant's
Representatives, Rent shall not be diminished during the repair of such
damage and Tenant shall be liable to Landlord for the cost of the repair
caused thereby to the extent such cost is not covered by Tenant's insurance
proceeds.
27.3 UNINSURED CASUALTY. Tenant shall be responsible for and shall
pay to Landlord, as Additional Rent, any of Tenant's deductibles amount under
the property insurance for the Premises and/or the Building. If any portion
of the Premises is damaged and is not fully covered by insurance proceeds
received by Landlord (and Tenant elects not to pay any such difference) or if
the holder of any indebtedness secured by the Premises requires that the
insurance proceeds be applied to such indebtedness, then Landlord shall have
the right to terminate this Lease by delivering written notice of termination
to the other party within thirty (30) days after the date of notice to Tenant
of any such event, whereupon all rights and obligations shall cease and
terminate hereunder, except for those obligations expressly provided for in
this Lease to survive such termination of the Lease.
27.4 TENANT'S WAIVER. Landlord shall not be liable for any
inconvenience or annoyance to Tenant, injury to the business of Tenant, loss
of use of any part of the Premises by Tenant or loss of Tenant's personal
property', resulting in any way from such damage, destruction or the repair
thereof, except that, Rent shall abate in proportion to the damage to the
Premises as specifically provided above in this Section 27. With respect to
any damage or destruction which Landlord is obligated to repair or may elect
to repair, Tenant hereby waives all rights to terminate this Lease or offset
any amounts against Rent pursuant to rights accorded Tenant by any law
currently existing or hereafter enacted, including but not limited to, all
rights pursuant to the provisions of Sections 1932(2.), 1933(4.), 1941 and
1942 of the California Civil Code, as the same may be amended or supplemented
from time to time."
28. CONDEMNATION: If the Premises or twenty-five percent (25%) or more of
Tenant's portion of parking spaces is condemned by eminent domain, inversely
condemned or sold in lieu of condemnation for any public or quasi-public use
or purpose ("Condemned"), then Tenant or Landlord may terminate this Lease as
of the date when physical possession of the Premises is taken and title vests
in such condemning authority, and Rent shall be adjusted to the date of
termination. Tenant shall not because of such condemnation assert any claim
against Landlord or the condemning authority for any compensation because of
such condemnation, and Landlord shall be entitled to receive the entire
amount of any award without deduction for any estate of interest or other
interest of Tenant except for any award for Tenant's relocation expenses,
loss of personal property and fixtures installed by Tenant or unamortized
tenant improvements paid by Tenant. If a substantial portion of the
Premises, Building or the Lot is so Condemned, Landlord at its option may
terminate this Lease. If Landlord does not elect to terminate this Lease,
Landlord shall, if necessary, promptly proceed to restore the Premises or the
Building to substantially its same condition prior to such partial
condemnation, allowing for the reasonable effects of such partial
condemnation, and a proportionate allowance shall be made to Tenant, as
reasonably determined by Landlord, for the Rent corresponding to the time
during which, and to the part of the Premises of which, Tenant is deprived on
account of such partial condemnation and restoration. Landlord shall not be
required to spend funds for restoration in excess of the amount received by
Landlord as compensation awarded.
29. ENVIRONMENTAL MATTERS/HAZARDOUS MATERIALS:
29.1 HAZARDOUS MATERIALS DISCLOSURE CERTIFICATE: Prior to executing
this Lease, Tenant has completed, executed and delivered to Landlord Tenant's
initial Hazardous Materials Disclosure Certificate (the "Initial HazMat
Certificate"), a copy of which is attached hereto as Exhibit G and
incorporated herein by this reference. Tenant covenants, represents and
warrants to Landlord that the information on the Initial HazMat Certificate
is true and correct and accurately describes the use(s) of Hazardous
Materials which will be made and/or used on the Premises by Tenant. Tenant
shall commencing with the date which is one year from the Commencement Date
and continuing every year thereafter, complete, execute, and deliver to
Landlord, a Hazardous Materials Disclosure Certificate ("the "HazMat
Certificate") describing Tenant's present use of Hazardous Materials on the
Premises, and any other reasonably necessary documents as requested by
Landlord. The HazMat Certificate required hereunder shall be in substantially
the form as that which is attached hereto as Exhibit E.
29.2 DEFINITION OF HAZARDOUS MATERIALS: As used in this Lease, the
term Hazardous Materials shall mean and include (a) any hazardous or toxic
wastes, materials or substances, and other pollutants by products, gasoline,
diesel fuel, crude oil or any fraction thereof; (c) asbestos and asbestos
containing material, in any form, whether friable or non-friable; (d)
polychlorinated biphenyls; (e) radioactive materials; (f) lead and
lead-containing materials; (g) any other material, waste or substance
displaying toxic, reactive, ignitable or corrosive characteristics, as all
such terms are used in their broadest sense, and are defined or become
defined by any Environmental Law (defined below); or (h) any materials which
cause or threatens to cause a nuisance upon or waste to any portion of the
Premises, the Building, the Lot, tile Park or any surrounding property; or
poses or threatens to pose a hazard to the health and safety of persons on
the Premises or any surrounding property. Hazardous Materials shall not
include typical household cleaning products or typical office supplies.
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29.3 PROHIBITION; ENVIRONMENTAL LAWS: Tenant shall not be entitled to
use nor store any Hazardous Materials on, in, or about the Premises, the
Building, the Lot and the Park, or any portion of tile foregoing, without, in
each instance, obtaining Landlord's prior written consent thereto. If
Landlord consents to any such usage or storage, then Tenant shall be
permitted to use and/or store only those Hazardous Materials that are
necessary for Tenant's business and to the extent disclosed in the HazMat
Certificate and as expressly approved by Landlord in writing, provided that
such usage and storage is only to the extent of the quantities of Hazardous
Materials as specified in the then applicable HazMat Certificate as expressly
approved by Landlord and provided further that such usage and storage is in
full compliance with any and all local, state and federal environmental,
health and/or safety-related laws, statutes, orders, standards, courts'
decisions, ordinances, rules and regulations (as interpreted by judicial and
administrative decisions), decrees, directives, guidelines, permits or permit
conditions, currently existing and as 'amended, enacted, issued or adopted in
the future which are or become applicable to Tenant or all or any portion of
the Premises (collectively, the "Environmental Laws"). Tenant agrees that
any changes to the type and/or quantities of Hazardous Materials specified in
the most recent HazMat Certificate may be implemented only with the prior
written consent of Landlord, which consent may be given or withheld in
Landlord's sole but reasonable discretion. Tenant shall not be entitled nor
permitted to install any tanks under, on or about the Premises for the
storage of Hazardous Materials without the express written consent of
Landlord, which may be given or withheld in Landlord's sole but reasonable
discretion. Landlord shall have the right at all times during the Term of
this Lease to (i) with forty-eight (48) hours prior notice, if possible,
inspect the Premises, (ii) conduct tests and investigations to determine
whether Tenant is in compliance with the provisions of this Section 29, and
(iii) request lists of all Hazardous Materials used, stored or otherwise
located on, under or about the Premises, the Common Areas and/or the parking
lots (to the extent the Common Areas and/or the parking lots are not
considered part of the Premises). The cost of all such inspections, tests
and investigations shall be borne solely by Tenant, if Landlord reasonably
believes they are necessary. The aforementioned rights granted herein to
Landlord and its representatives shall not create (a) a duty on Landlord's
part to inspect, test, investigate, monitor or otherwise observe the Premises
or the activities of Tenant and Tenant's Representatives with respect to
Hazardous Materials, including without limitation, Tenant's operation, use
and any remediation related thereto, or (b) liability on the part of Landlord
and its representatives for Tenant's use, storage, disposal or remediation of
Hazardous Materials, it being understood that Tenant shall be solely
responsible for all liability in connection therewith.
29.4 TENANT'S ENVIRONMENTAL OBLIGATIONS: Tenant shall give to Landlord
immediate verbal and follow-up written notice of any spills, releases,
discharges, disposals, emissions, migrations, removals or transportation of
Hazardous Materials on, under or about the Premises, or in any Common Areas
or parking lots (to the extent such areas are not considered part of the
Premises). Tenant, at its sole cost and expense, covenants and warrants to
promptly investigate, clean up, remove, restore and otherwise remediate
(including, without limitation, preparation of any required feasibility
studies or reports and the performance of any and all closures) any spill,
release, discharge, disposal, emission, migration or transportation of
Hazardous Materials arising from or related to the intentional or negligent
acts or omissions of Tenant or Tenant's Representatives such that the
affected portions of the Park and any adjacent property are returned to the
condition existing prior to the appearance of such Hazardous Materials. Any
such investigation, clean up, removal, restoration and other remediation
shall only be performed after Tenant has obtained Landlord's prior written
consent, which consent shall not be unreasonably withheld so long as such
actions would not potentially have a material adverse long-term or short-term
effect on the Premises, the Building, the Lot or the Park, or any portion of
any of the foregoing. Notwithstanding the foregoing, Tenant shall be
entitled to respond immediately to an emergency without first obtaining
Landlord's prior written consent. Tenant, at its sole cost and expense,
shall conduct and perform, or cause to be conducted and performed, in
connection with any of tile foregoing, all closures as required by any
Environmental Laws or any agencies or other governmental authorities having
jurisdiction thereof. If Tenant fails to so promptly investigate, clean up,
remove, restore, provide closure or otherwise so remediate, Landlord may, but
without obligation to do so, take any and all steps necessary to rectify the
same and Tenant shall promptly reimburse Landlord, upon demand, for all
reasonable costs and expenses to Landlord of performing investigation, clean
up, removal, restoration, closure and remediation work. All such work
undertaken by Tenant, as required herein, shall be performed in such a manner
so as to enable Landlord to make full economic use of the Premises, the
Building, the Lot and the Park after the satisfactory completion of such work.
29.5 ENVIRONMENTAL INDEMNITY: In addition to Tenant's obligations as
set forth hereinabove, Tenant and Tenant's officers and directors agree to,
and shall, protect, indemnify, defend (with counsel reasonably acceptable to
Landlord) and hold Landlord and Landlord's lenders, partners, property
management company (if other than Landlord), agents, directors, officers,
employees, representatives, contractors, shareholders, successors and assigns
and each of their respective partners, directors, employees, representatives,
agents, contractors, shareholders, successors and assigns harmless from and
against any and all claims, judgments, damages, penalties, fines,
liabilities, losses (including, without limitation, diminution in value of
the Premises, the Building, the Lot, the Park, or any portion of any of the
foregoing, damages for the loss of or restriction on the use of rentable or
usable space, and from any adverse impact of Landlord's marketing of any
space within the Building and/or Park), suits, administrative proceedings and
costs (including, but not limited to, reasonable attorneys' and consultant
fees and court costs) arising at any time during or after the Term of this
Lease in connection with or related to, directly or indirectly, the use,
presence, transportation, storage, disposal, migration, removal, spill,
release or discharge of Hazardous Materials on, in or about the Premises, or
in any Common Areas or parking lots (to the extent such areas are not
considered part of the Premises) as a result (directly or indirectly) of the
intentional or negligent acts or omissions of Tenant or Tenant's
Representatives. Neither the written consent of Landlord to the presence,
use or storage of Hazardous Materials in, on, under or about any portion of
the Premises, the Building, the Lot and the Park, nor the strict compliance
by Tenant with all Environmental Laws shall excuse Tenant and Tenant's
officers and directors
21
from its obligations of indemnification pursuant hereto. To the extent
Landlord is strictly liable under any Environmental Laws, Tenant's
obligations to Landlord under this Section 29 and the indemnity contained
herein shall likewise be without regard to fault on Tenant's part with
respect to the violation of any Environmental Law which results in liability
to any of the aforementioned indemnitees.
29.6 SURVIVAL: Tenant's obligations and liabilities pursuant to the
provisions of this Section 29 shall survive the expiration or earlier
termination of this Lease. If it is reasonably determined by Landlord that
the condition of all or any portion of the Premises, the Building, the Lot
and/or the Park is not in compliance with the provisions of this Lease with
respect to Hazardous Materials, including without limitation all
Environmental Laws at the expiration or earlier termination of this Lease,
then at Landlord's sole option, Landlord may require Tenant to hold over
possession of the Premises until Tenant can surrender the Premises to
Landlord in the condition in which the Premises existed as of the
Commencement Date and prior to the appearance of such Hazardous Materials
except for reasonable wear and tear,-including without limitation, the
conduct or performance of any closures as required by any Environmental Laws.
The burden of proof hereunder shall be upon Tenant. For purposes hereof,
the term "reasonable wear and tear" shall not include any deterioration in
the condition or diminution of the value of any portion of the Premises, the
Building, the Lot and/or the Park in any manner whatsoever related to
directly, or indirectly, Hazardous Materials. Any such holdover by Tenant
will be with Landlord's consent, will not be terminable by Tenant in any
event or circumstance and will otherwise be subject to the provisions of
Section 22 of this Lease.
29.7 DISCLOSURE: Landlord has provided to Tenant a copy of that
certain report prepared by ACT Environmental Inc., regarding the results of a
preliminary site assessment at the Lot, dated November 27, 1996 (the
"Environmental Report"). Tenant hereby acknowledges and agrees that Landlord
has delivered to Tenant a copy of the Environmental Report prior to Tenant
entering into this Lease. Landlord hereby represents to Tenant that as of the
Lease Date and based solely upon the Environmental Report, Landlord does not
have actual (not constructive) knowledge of the presence of Hazardous
Materials in, on or about the Premises, the Building, the Lot or the Park.
Landlord has received no written notice, claim, warning, enforcement,
cleanup, removal or other regulatory or judicial action by any governmental
agency, court or other person with respect to the Premises that relates to
Hazardous Materials.
30. FINANCIAL STATEMENTS: Tenant, for the reliance of Landlord, any lender
holding or anticipated to acquire a lien upon the Premises, the Building or
the Park or any portion thereof, or any prospective purchaser of the Building
or the Park or any portion thereof, within ten (10) days after Landlord's
request therefor, but not more often than once annually so long as Tenant is
not in default of this Lease, shall deliver to Landlord the then current
audited financial statements of Tenant (including interim periods following
the end of the last fiscal year for which annual statements are available)
which statements shall be prepared or compiled by a certified public
accountant and shall present fairly the financial condition of Tenant at such
dates and the result of its operations and changes in its financial positions
for the periods ended on such dates. If an audited financial statement has
not been prepared, Tenant shall provide Landlord with an unaudited financial
statement and/or such other information, the type and form of which are
acceptable to Landlord in Landlord's reasonable discretion, which reflects
the financial condition of Tenant. If Landlord so requests, but not more
often than once annually Tenant shall deliver to Landlord an opinion of a
certified public accountant, including a balance sheet and profit and loss
statement for the most recent prior year, all prepared in accordance with
generally accepted accounting principles consistently applied. Any and all
options granted to Tenant hereunder shall be subject to and conditioned upon
Landlord's reasonable approval of Tenant's financial condition at the time of
Tenant's exercise of any such-option.
31. GENERAL PROVISIONS:
31.1 TIME. Time is of the essence in this Lease and with respect to
each and all of its provisions in which performance is a factor.
31.2 SUCCESSORS AND ASSIGNS. The covenants and conditions herein
contained, subject to the provisions as to assignment, apply to and bind the
heirs, successors, executors, administrators and assigns of the parties
hereto.
31.3 RECORDATION. Tenant shall not record this Lease or a short form
memorandum hereof without the prior written consent of the Landlord, which
consent shall not be unreasonably withheld or delayed.
31.4 LANDLORD'S PERSONAL LIABILITY. The liability of Landlord (which,
for purposes of this Lease, shall include Landlord and the owner of the
Building if other than Landlord) to Tenant for any default by Landlord under
the terms of this Lease shall be limited to the actual interest of Landlord
arid its present or future panners in the Premises or the Building and/or the
Park, and Tenant agrees to look solely to the Premises for satisfaction of
any liability and shall not look to other assets of Landlord nor seek any
recourse against the assets of the individual partners, directors, officers,
shareholders, agents or employees of Landlord; it being intended that
Landlord and the individual partners, directors, officers, shareholders,
agents or employees of Landlord shall not be personally liable in any manner
whatsoever for any judgment or deficiency. The liability of Landlord under
this Lease is limited to its actual period of ownership of title to the
Building, and Landlord shall be automatically released from further
performance under this Lease and from all further liabilities and expenses
hereunder upon transfer of Landlord's interest in the Premises or the
Building, except for liabilities and expenses arising prior to such transfer.
22
31.5 SEPARABILITY. Any provisions of this Lease which shall prove to
be invalid, void or illegal shall in no way affect, impair or invalidate any
other provisions hereof and such other provision shall remain in full force
and effect.
31.6 CHOICE OF LAW. This Lease shall be governed by the laws of the
State of California.
31.7 ATTORNEYS' FEES. In the event any dispute between the parties
results in litigation or other proceeding, the prevailing party shall be
reimbursed by the party not prevailing for all reasonable costs and expenses,
including, without limitation, reasonable attorneys' and experts' fees and
costs incurred by the prevailing party in connection with such litigation or
other proceeding, and any appeal thereof. Such costs, expenses and fees
shall be included in and made a part of the judgment recovered by the
prevailing party, if any.
31.8 ENTIRE AGREEMENT. This Lease supersedes any prior agreements,
representations, negotiations or correspondence between the parties, and
contains the entire agreement of the parties on matters covered. No other
agreement, statement or promise made by any party, that is not in writing and
signed by all parties to this Lease, shall be binding.
31.9 WARRANTY OF AUTHORITY. On the date that Tenant executes this
Lease, Tenant shall deliver to Landlord an original certificate of status for
Tenant issued by the California Secretary of State or statement of
partnership for Tenant recorded in the county in which the Premises are
located, as applicable, and such other documents as Landlord may reasonably
request with regard to the lawful existence of Tenant. Each person executing
this Lease on behalf of a party represents and warrants that (1) such person
is duly and validly authorized to do so on behalf of the entity it purports
to so bind, and (2) if such party is a partnership, corporation or trustee,
that such partnership, corporation or trustee has full right and authority to
enter into this Lease and perform all of its obligations hereunder. In
addition to any other remedies available to Landlord under this Lease, if
there is any breach of the foregoing warranty, the person(s) executing this
Lease on behalf of Tenant shall be personally liable for all of Tenant's
obligations under this Lease, including, but not limited to, the payment by
such person(s) to Landlord of any and all losses, liabilities, costs,
expenses and damages incurred by Landlord hereunder.
31.10 NOTICES. Any and all notices and demands required or permitted
to be given hereunder to Landlord shall be in writing and shall be sent: (a)
by United States mail, certified and postage prepaid; or (b) by personal
delivery; or (c) by overnight courier, addressed to Landlord at 101 Lincoln
Centre Drive, Fourth Floor, Foster City, California 94404-1167, facsimile
#(415) 571-2211. Any and all notices and demands required or permitted to be
given hereunder to Tenant shall be in writing and shall be sent: (i) by
United States mail, certified and postage prepaid; or (ii) by personal
delivery to any employee or agent of Tenant over-the age of eighteen (18)
years of age; or (iii) by overnight courier, all of which shall be addressed
to Tenant at the Premises; or (iv) by facsimile at the facsimile number at
the Premises, if any, as provided by Tenant on Page 1 of this Lease or
otherwise provided to Landlord, with a hardcopy to follow by another means
listed above, deposited with the appropriate carrier within one business day
of forwarding by facsimile. Notice and/or demand shall be deemed given upon
the earlier of actual receipt or the third day following deposit in the
United States mail. Notice and/or demand by facsimile shall be complete upon
transmission over the telephone line. Any notice or requirement of service
required by any statute or law now or hereafter in effect, including, but not
limited to, California Code of Civil Procedure Sections 1161, 1161.1, and
1162, is hereby waived by Tenant.
31.11 JOINT AND SEVERAL. If Tenant consists of more than one person or
entity, the obligations of all such persons or entities shall be joint and
several.
31.12 COVENANTS AND CONDITIONS. Each provision to be performed by
Tenant hereunder shall be deemed to be both a covenant and a condition.
31.13 WAIVER OF JURY TRIAL. The parties hereto shall and they hereby
do waive trial by jury in any action, proceeding or counterclaim brought by
either of the parties hereto against the other on any matters whatsoever
arising out of or in any way related to this Lease, the relationship of
Landlord and Tenant, Tenant's use or occupancy of the Premises, the Building
or the Park, and/or any claim of injury, loss or damage.
31.14 COUNTERCLAIMS. In the event Landlord commences any proceedings
for nonpayment of Rent, Additional Rent, or any other sums or amounts due
hereunder, Tenant shall not interpose any counterclaim of whatever nature or
description in any such proceedings, provided, however, nothing contained
herein shall be deemed or construed as a waiver of the Tenant's right to
assert such claims in any separate action brought by Tenant or the right to
offset the amount of any final judgment owed by Landlord to Tenant.
31.15 UNDERLINING. The use of underlining within the Lease is for
Landlord's reference purposes only and no other meaning or emphasis is
intended by this use, nor should any be inferred.
32. SIGNS: All signs and graphics of every kind visible in or from public
view or corridors or the exterior of the Premises shall be subject to
Landlord's prior written approval, which shall not be unreasonably withheld
or delayed, and shall be subject to any applicable governmental laws,
ordinances, and regulations and in compliance with Landlord's sign criteria
as same may exist from time to time or as set forth in Exhibit H hereto and
made a part hereof. Tenant shall remove all such signs and graphics prior to
the termination of this Lease. Such installations and removals shall be made
in a manner as to avoid damage or defacement of the Premises; and Tenant
shall repair any damage or defacement, including without limitation,
discoloration caused by such
23
installation or removal. In the event that Tenant fails to remove such signs
and graphics as requested hereunder, Landlord shall have the right, at its
option, to deduct from the Security Deposit such sums as are reasonably
necessary to remove such signs, including, but not limited to, the costs and
expenses associated with any repairs necessitated by such removal.
Notwithstanding the foregoing, in no event shall any: (a) neon, flashing or
moving sign(s) or (b) sign(s) which shall interfere with the visibility of
any sign, awning, canopy, advertising matter, or decoration of any kind of
any other business or occupant of the Building or the Park be permitted
hereunder. Tenant further agrees to maintain any such sign, awning, canopy,
advertising matter, lettering, decoration or other thing as may be approved
in good condition and repair at all times.
33. MORTGAGEE PROTECTION: Upon any breach or default on the part of
Landlord, Tenant will give written notice by registered or certified mail to
any beneficiary of a deed of trust or mortgagee of a mortgage covering the
Premises who has provided Tenant with notice of their interest together with
an address for receiving notice, and shall offer such beneficiary or
mortgagee a reasonable opportunity to cure the default (which, in no event
shall be less than ninety (90) days), including time to obtain possession of
the Premises by power of sale or a judicial foreclosure, if such should prove
necessary to effect a cure. If such breach or default cannot be cured within
such time period, then such additional time as may be necessary will be given
to such beneficiary or mortgagee to effect such cure so long as such
beneficiary or mortgagee has commenced the cure within the original time
period and thereafter diligently pursues such cure to completion, in which
event this Lease shall not be terminated while such cure is being diligently
pursued. Tenant agrees that each lender to whom this Lease has been assigned
by Landlord is an express third party beneficiary hereof. Tenant shall not
make any prepayment of Rent more than one (1) month in advance without the
prior written consent of each such lender, except if Tenant is required to
make quarterly payments of Rent in advance pursuant to the provisions of
Section 8 above. Tenant waives the collection of any deposit from such
lender(s) or any purchaser at a foreclosure sale of such lender(s)' deed of
trust unless the lender(s) or such purchaser shall have actually received and
not refunded the deposit. Tenant agrees to make all payments under this
Lease to the lender with the most senior encumbrance upon receiving a
direction, in writing, to pay said amounts to such lender. Tenant shall
comply with such written direction to pay without determining whether an
event of default exists under such lender's loan to Landlord. Landlord
agrees that (i) Tenant may conclusively rely upon any written notice Tenant
receives from such beneficiary of any mortgage or deed of trust ("Lender"),
encumbering the Building and/or the land upon which the Building is situated,
notwithstanding any claim by Landlord contesting the validity of any term or
condition of such notice, including, but not limited to, any default claimed
by Lender and (ii) that Landlord shall not make any claim of any kind against
Tenant or Tenant's leasehold interest with respect to amounts paid to Lender
by Tenant or any acts performed by Tenant which are made or done in strict
accordance with such written notice.
34. QUITCLAIM: Upon any termination of this Lease, Tenant shall, at
Landlord's request, execute, have acknowledged and deliver to Landlord a
quitclaim deed of Tenant's interest in and to the Premises. If Tenant fails
to so deliver to Landlord such a quitclaim deed, Tenant hereby agrees that
Landlord shall have the full authority and right to record such a quitclaim
deed signed only by Landlord and such quitclaim deed shall be deemed
conclusive and binding upon Tenant.
35. MODIFICATIONS FOR LENDER: If, in connection with obtaining financing
for the Premises or any portion thereof, Landlord's lender shall request
reasonable modification(s) to this Lease as a condition to such financing,
Tenant shall not unreasonably withhold, delay or defer its consent thereto,
provided such modifications do not materially adversely affect Tenant's
rights hereunder or the use, occupancy or quiet enjoyment of Tenant hereunder.
36. WARRANTIES OF TENANT: Tenant hereby warrants and represents to
Landlord, for the express benefit of Landlord, that Tenant has undertaken a
complete and independent evaluation of the risks inherent in the execution of
this Lease and the operation of the Premises for the use permitted hereby,
and that, based upon said independent evaluation, Tenant has elected to enter
into this Lease and hereby assumes all risks with respect thereto. Tenant
hereby further warrants and represents to Landlord, for the express benefit
of Landlord, that in entering into this Lease, Tenant has not relied upon any
statement, fact, promise or representation (whether express or implied,
written or oral) not specifically set forth herein in writing and that any
statement, fact, promise or representation (whether express or implied,
written or oral) made at any time to Tenant, which is not expressly
incorporated herein in writing, is hereby waived by Tenant.
37. COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT: As of the Commencement
Date the Premises and the Building are in compliance with the applicable
requirements of the City of Newark with respect to matters governed by the
ADA. Landlord and Tenant hereby agree and acknowledge that the Premises, the
Building and/or the Park may be subject to the requirements of the Americans
with Disabilities Act, a federal law codified at 42 U.S.C. 12101 et seq,
including, but not limited to Title III thereof, all regulations and
guidelines related thereto, together with any and all laws, rules,
regulations, ordinances, codes and statutes now or hereafter enacted by local
or state agencies having jurisdiction thereof, including all requirements of
Title 24 of the State of California, as the same may be in effect on the date
of this Lease and may be hereafter modified, amended or supplemented
(collectively, the "ADA"). Any Tenant Improvements to be constructed
hereunder shall be in compliance with the requirements of the ADA, and all
costs incurred for purposes of compliance therewith shall be a part of and
included in the costs of the Tenant Improvements. Tenant shall be solely
responsible for conducting its own independent investigation of this matter
with respect to the condition of the Building, Tenant's use of the Premises
and for all improvements to be made to the Premises after the actual
Commencement Date (other than the Tenant Improvements); provided, however,
with respect to the Tenant Improvements Landlord shall be solely responsible
for ensuring that the design of all Tenant Improvements are not in violation
of the then applicable requirements of the ADA. Subject to reimbursement
pursuant to Section 6 of the Lease, if any barrier removal work or other work
is required to the Building, the Common Areas or
24
the Park under the ADA, then such work shall be the responsibility of
Landlord; provided, if such work is required under the ADA as a result of
Tenant's use of the Premises or any work or alteration made to the Premises
by or on behalf of Tenant, then such work shall be performed by Landlord at
the sole cost and expense of Tenant. Except as otherwise expressly provided
in this provision, Tenant shall be responsible at its sole cost and expense
for fully and faithfully complying with all applicable requirements of the
ADA, including without limitation, not discriminating against any disabled
persons in the operation of Tenant's business in or about the Premises, and
offering or otherwise providing auxiliary aids and services as, and when,
required by the ADA. Within ten (10) days after receipt, Landlord and Tenant
shall advise the other party in writing, and provide the other with copies of
(as applicable), any notices alleging violation of the ADA relating to any
portion of the Premises or the Building; any claims made or threatened in
writing regarding noncompliance with the ADA and relating to any portion of
the Premises or the Building; or any governmental or regulatory actions or
investigations instituted or threatened regarding noncompliance with the ADA
and relating to any portion of the Premises or the Building. Tenant shall
and hereby agrees to protect, defend (with counsel reasonably acceptable to
Landlord) and hold Landlord and Landlord's lender(s), partners, employees,
representatives, legal representatives, successors and assigns (collectively,
the "Indemnitees") harmless and indemnify the Indemnitees from and against
all liabilities, damages, claims, losses, penalties, judgments, charges and
expenses (including reasonable attorneys' fees, costs of court and expenses
necessary in the prosecution or defense of any litigation including the
enforcement of this provision) arising from or in any way related to,
directly or indirectly, Tenant's or Tenant's Representatives' violation or
alleged violation of the ADA. Tenant agrees that the obligations of Tenant
herein shall survive the expiration or earlier termination of this Lease.
38. BROKERAGE COMMISSION: Landlord and Tenant each represents and warrants
for the benefit of the other that it has had no dealings with any real estate
broker, agent or finder in connection with the Premises and/or the
negotiation of this Lease, except for the Broker(s) (as set forth on Page 1),
and that it knows of no other real estate broker, agent or finder who is or
might be entitled to a real estate brokerage commission or finder's fee. in
connection with this Lease or otherwise based upon contacts between the
claimant and Tenant. Each party shall indemnify and hold harmless the other
from and against any and all liabilities or expenses arising out of claims
made for a fee or commission by any real estate broker, agent or finder in
connection with the Premises and this Lease other than Broker(s), if any,
resulting from the actions of the indemnifying party. Any real estate
brokerage commission or finder's fee payable to the Broker(s) in connection
with this Lease shall be payable by Landlord and only be payable and
applicable to the extent of the initial Term of the Lease and to the extent
of the Premises as same exist as of the date on which Tenant executes this
Lease. Unless expressly agreed to in writing by Landlord and Broker(s), no
real estate brokerage commission or finder's fee shall be owed to, or
otherwise payable to, the Broker(s) for any renewals or other extensions of
the initial Term of this Lease or for any additional space leased by Tenant
other than the Premises as same exists as of the date on which Tenant
executes this Lease. Tenant further represents and warrants to Landlord that
Tenant will not receive (i) any portion of any brokerage commission or
finder's fee payable to the Broker(s) in connection with this Lease or (ii)
any other form of compensation or incentive from the Broker(s) with respect
to this Lease.
39. QUIET ENJOYMENT: Landlord covenants with Tenant, upon the paying of
Rent and observing and keeping the covenants, agreements and conditions of
this Lease on its part to be kept, and during the periods that Tenant is not
otherwise in default of any of the terms or provisions of this Lease, and
subject to the rights of any of Landlord's lenders, (i) that Tenant shall and
may peaceably and quietly hold, occupy and enjoy the Premises and the Common
Areas during the Term of this Lease, and (ii) neither Landlord, nor any
successor or assign of Landlord, shall disturb Tenant's occupancy or
enjoyment of the Premises and the Common Areas.
40. LANDLORD'S ABILITY TO PERFORM TENANT'S UNPERFORMED OBLIGATIONS:
Notwithstanding anything to the contrary contained in this Lease, if Tenant
shall fail to perform any of the terms, provisions, covenants or conditions
to be performed or complied with by Tenant pursuant to this Lease, and/or if
the failure of Tenant relates to a matter which in Landlord's judgment
reasonably exercised is of an emergency nature and such failure shall remain
uncured for a period of time commensurate with such emergency, then Landlord
may, at Landlord's option without any obligation to do so, and in its sole
discretion as to the necessity therefor, perform any such term, provision,
covenant, or condition, or make any such payment and Landlord by reason of so
doing shall not be liable or responsible for any loss or damage thereby
sustained by Tenant or anyone holding under or through Tenant. If Landlord
so performs any of Tenant's obligations hereunder, the full amount of the
cost and expense entailed or the payment so made or the amount of the loss so
sustained shall immediately be owing by Tenant to Landlord, and Tenant shall
promptly pay to Landlord upon demand, as Additional Rent, the full amount
thereof with interest thereon from the date of payment at the greater of (i)
ten percent (10%) per annum, or (ii) the highest rate permitted by applicable
law and Enforcement Expenses.
41. Landlord agrees that Tenant shall have the right, at its discretion,
and after giving Landlord at least twenty (20) days prior written notice of
the terms, conditions and identifying the mortgagee or beneficiary of such
security interest, to mortgage, hypothecate or convey a security interest in
tenant's equipment and personal property (but not any fixtures attached to
the Premises) within the Premises as security for its obligations under any
equipment lease or other financing arrangement related to the conduct of
Tenant's business, provided that any such lender shall have no right to
occupy the Premises or any portion thereof to hold an auction or other
proceeding at the Premises, any such lender and Tenant would agree to repair
and restore, within ten (10) days of written demand by Landlord, any and all
damage caused by such mortgagee, beneficiary, its agents and/or employees,
and lender and Tenant shall indemnify, protect, defend (by counsel acceptable
to Landlord) and hold Landlord harmless from any and all loss, cost, damage,
liability, claim, cause of action and expense (including, without limitation,
reasonable attorney's fees and costs) arising out of or related to the
granting by Tenant of any such security interest, hypothecation, mortgage
and/or conveyance.
25
IN WITNESS WHEREOF, this Lease is executed by the parties as of the
Lease Date referenced on page I of this Lease.
TENANT:
InVision Technologies, Inc.,
a Delaware corporation
By:
-------------------------------------
Its:
------------------------------------
Date:
-----------------------------------
LANDLORD:
WHLNF REAL ESTATE LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Lincoln Property Company Management Services, Inc.,
as manager and agent for Landlord
By:
--------------------------------------
Vice President
26
EXHIBIT A - PREMISES
This exhibit, entitled "Premises", is and shall constitute EXHIBIT A to that
certain Lease Agreement dated December 4, 1996 (the "Lease"), by and between
WHLNF REAL ESTATE LIMITED PARTNERSHIP, a-Delaware limited partnership
("Landlord") and InVision Technologies, Inc., a Delaware corporation
("Tenant") for the leasing of certain premises located in the Lincoln
Bridgeway Technology Center at 7151 Gateway Boulevard, Newark, California
(the "Premises").
The Premises consist of the rentable square footage of space specified in the
Base Lease Information and has the address specified in the Base Lease
Information. The Premises are a part of and are contained in the Building
specified in the Base Lease Information. The cross-hatched area depicts the
Premises within the Project:
INITIALS:
TENANTS:
------------------
LANDLORD:
------------------
EXHIBIT B TO LEASE AGREEMENT
TENANT IMPROVEMENTS
This exhibit, entitled' "Tenant Improvements", is and shall constitute
EXHIBIT B to that certain Lease Agreement dated February 11, 1997 (the
"Lease"), by and between WHLNF REAL ESTATE LIMITED PARTNERSHIP, a Delaware
limited partnership ("Landlord") and InVision Technologies, Inc., a Delaware
corporation ("Tenant") for the leasing of certain premises located in the
Lincoln Bridgeway Technology Center at 7151 Gateway Boulevard, Newark,
California (the "Premises"). The terms, conditions and provisions of this
EXHIBIT B are hereby incorporated into and are made a part of the Lease. Any
capitalized terms used herein and not otherwise defined herein shall have the
meaning ascribed to such terms as set forth in the Lease:
1. TENANT IMPROVEMENTS. Subject to the conditions set forth below,
Landlord agrees to construct and install certain improvements ("Tenant
Improvements") in the Building of which the Premises*are a part in accordance
with the Final Drawings (defined below) and pursuant to the terms of this
EXHIBIT B.
2. DEFINITION. "Tenant Improvements" as used in this Lease shall include
only those interior portions of the Building which are described below.
"Tenant Improvements" shall specifically not include any alterations,
additions or improvements installed or constructed by Tenant, and any of
Tenant's trade fixtures, equipment, furniture, furnishings, telephone
equipment or other personal property (collectively, "Personal Property").
The Tenant Improvements shall include any and all interior improvements to be
made to the Premises as specified in the Final Drawings (defined below), as
specified and agreed to by Tenant and Landlord.
3. TENANT'S INITIAL PLANS; THE WORK. Tenant desires Landlord to perform
certain Tenant Improvements in the Premises. Within three (3) days of the
execution of the Lease by Landlord and Tenant, Tenant shall notify Landlord,
in writing, that it desires Landlord to plan, install and construct the
Tenant Improvements in the Building (the "Initial Notice"). The Tenant
Improvements shall be in substantial accordance with the plan(s) or scope of
work (collectively, the "Initial Plans") which will be prepared by Lincoln
Property Company after Tenant delivers to Landlord the Initial Notice and the
parties meet and confer to agree on a scope of work. Within seven (7) days
from the date Landlord and Tenant meet to discuss the scope of work, Landlord
shall deliver to Tenant the Initial Plans. A copy of the Initial Plans shall
be attached hereto as Schedule 1 as soon as practicable. Such work, as shown
in the Initial Plans and as more fully detailed in the Final Drawings (as
defined and described in Section 4 below), shall be hereinafter referred to
as the "Work". Not later than five (5) days after the Initial Plans are
prepared and delivered to Tenant, Tenant and/or Tenant's Representatives
shall furnish to Landlord such additional plans, drawings, specifications and
finish details as Landlord may reasonably request to enable Landlord's
architects and engineers, as applicable, to prepare mechanical, electrical
and plumbing plans and to prepare the Final Drawings, including, but not
limited to, a final telephone layout and special electrical connections, if
any. All plans, drawings, specifications and other details describing the
Work which have been, or are hereafter, furnished by or on behalf of Tenant
shall be subject to Landlord's approval, which approval shall not be
unreasonably withheld. Landlord shall not be deemed to have acted
unreasonably if it withholds its approval of any plans, specifications,
drawings or other details or of any Change Request (hereafter defined in
Section 11 below) because, in Landlord's reasonable opinion, the work as
described in any such item, or any Change Request, as the case may be: (a) is
likely to adversely affect Building systems, the structure of the Building or
the safety of the Building and/or its occupants; (b) might impair Landlord's
ability to furnish services to Tenant or other tenants in the Building; (c)
would increase the cost of operating the Building or the Park; (d) would
violate any applicable governmental, administrative body's or agencies' laws,
rules, regulations, ordinances, codes or similar requirements (or
interpretations thereof); (e) contains or uses Hazardous Materials; (f) would
adversely affect the appearance of the Building or the Park; (g) might
adversely affect another tenant's premises or such other tenant's use and
enjoyment of such premises; (h) is prohibited by any ground lease affecting
the Building, the Lot and/or the Park, any Recorded Matters or any mortgage,
trust deed or other instrument encumbering the Building, the Lot and/or the
Park; (i) is likely to be substantially delayed because of unavailability or
shortage of labor or materials necessary to perform such work or the
difficulties or unusual nature of such work; (j) is not, at a minimum, in
accordance with Landlord's Building Standards (defined below), or (k) would
increase the Tenant Improvement Costs (defined in Section 9 below) by more
than ten percent (10%) from the cost originally estimated and anticipated by
the parties. The foregoing reasons, however, shall not be the only reasons
for which Landlord may withhold its approval, whether or not such other
reasons are similar or dissimilar to the foregoing. Neither the approval by
Landlord of the Work or the Initial Plans or any other plans, specifications,
drawings or other items associated with the Work nor Landlord's performance,
supervision or monitoring of the Work shall constitute any warranty or
covenant by Landlord to Tenant of the adequacy of the design for Tenant's
intended use of the Premises. Tenant agrees to, and does hereby, assume full
and complete responsibility to ensure that the Work and the Final Drawings
are adequate to fully meet the needs and requirements of Tenant's intended
operations of its business within the Premises and Tenant's use of the
Premises.
4. FINAL DRAWINGS. If necessary for the performance of the Work and to
the extent not already included as part of the Initial Plans attached hereto,
Landlord shall prepare or cause to be prepared final working drawings and
specifications for the Work (the "Final Drawings") based on and consistent
with the Initial Plans and the other plans, specifications, drawings, finish
details or other information furnished by Tenant or Tenant's Representatives
to Landlord and approved by Landlord pursuant to Section 3 above. Tenant
shall cooperate diligently with Landlord and Landlord's architect, engineer
and other representatives and Tenant shall furnish within five (5) days after
any request therefor, all information required by Landlord or Landlord's
architect, engineer or other representatives for completion of the Final
Drawings. So long as the Final Drawings are substantially consistent with
the Initial Plans, Tenant shall approve the Final Drawings within three (3)
business days after receipt of same from Landlord. Landlord and Tenant shall
indicate their approval of the Final
1
Drawings by initialing each sheet of the Final Drawings and delivering to one
another a true and complete copy of such initialed Final Drawings. A true
and complete copy of the approved and initialed Final Drawings shall be
attached to the Lease as EXHIBIT B-1 and shall be made a part thereof.
Tenant's failure to approve or disapprove such Final Drawings within the
foregoing three (3) business day time period, shall be conclusively deemed to
be approval of same by Tenant. If Tenant reasonably disapproves of any
matters included in the Final Drawings because such items are not
substantially consistent with the Initial Plans, Tenant shall, within the
aforementioned three (3) business day period, deliver to Landlord written
notice of its disapproval and Tenant shall specify in such written notice, in
sufficient detail as Landlord may reasonably require, the matters
disapproved, the reasons for such disapproval, and the specific changes or
revisions necessary to be made to the Final Drawings to cause such drawings
to substantially conform to the Initial Plans. Any additional costs
associated with such requested changes or revisions shall be paid for solely
by Tenant, as the Excess Tenant Improvement Costs (defined in Section 10
below), in cash upon written demand therefor by Landlord. Any changes or
revisions requested by Tenant must first be approved by Landlord, which
approval shall not be unreasonably withheld, subject to the provisions of
Section 3 above. If Landlord approves such requested changes or revisions or
delayed, Landlord shall cause the Final Drawings to be revised accordingly
and Landlord and Tenant shall initial each sheet of the Final Drawings as
revised and attach a true and complete copy thereof to the Lease as EXHIBIT
B-1. Landlord and Tenant hereby covenant to each other to cooperate with
each other and to act reasonably in the preparation and approval of the Final
Drawings.
5. PERFORMANCE OF WORK. As soon as practicable after Tenant and Landlord
initial and attach to the Lease as EXHIBIT B-1 a true and complete copy of
the Final Drawings, Landlord shall submit the Final Drawings to the
governmental authorities having rights of approval over the Work and shall
apply for the necessary approvals and building permits. Subject to the
satisfaction of all conditions precedent and subsequent to its obligations
under this EXHIBIT B, and further subject to the provisions of Section I0
hereof, as soon as practicable after Landlord or its representatives have
received all necessary approvals and building permits, Landlord will put the
Final Drawings out for bid to several, but in no event less than three (3),
licensed, bonded and insured general contractors. The Tenant Improvements
shall be constructed by a general contractor selected by Landlord (the
"General Contractor"). Landlord shall commence construction, or cause the
commencement of construction by the General Contractor, of the Tenant
Improvements, as soon as practicable after selection of the General
Contractor. Except as hereinafter expressly provided to the contrary,
Landlord shall cause the performance of the Work using (except as may be
stated or otherwise shown in the Final Drawings) building standard materials,
quantities and procedures then in use by Landlord ("Building Standards").
6. SUBSTANTIAL COMPLETION. Landlord and Tenant shall cause the General
Contractor to Substantially Complete (defined below) the Tenant Improvements
in accordance with the Final Drawings by the Commencement Date of the Lease
as set forth in Section 2 of the Lease (the "Completion Date"), subject to
delays due to (a) acts or events beyond its control including, but not
limited to, acts of God, earthquakes, strikes, lockouts, boycotts,
casualties, discontinuance of any utility or other service required for
performance of the Work, moratoriums, governmental agencies and weather, (b)
the lack of availability or shortage of specialized materials used in the
construction of the Tenant Improvements, (c) any matters beyond the
reasonable control of Landlord, the General Contractor or any subcontractors,
(d) any changes required by the fire department, building and/or planning
department, building inspectors or any other agency having jurisdiction over
the Building, the Work and/or the Tenant Improvements (except to the extent
such changes are directly attributable to Tenant's use or Tenant's
specialized tenant improvements, in which event such delays are considered
Tenant Delays) (the events and matters set forth in Subsections (a), (b), (c)
and (d) are collectively referred to as "Force Majeure Delays"), or (e) any
Tenant Delays (defined in Section 7 below). The Tenant Improvements shall be
deemed substantially complete on the date that the building officials of the
applicable governmental agency(s) issues its final approval of the
construction of the Tenant Improvements whether in the form of the issuance
of a final permit, certificate of occupancy or the written approval
evidencing its final inspection on the building permit(s), or the date on
which Tenant first takes occupancy of the Premises, whichever first occurs
("Substantial Completion", or "Substantially Completed, or "Substantially
Complete"). Except as otherwise set forth in Section 2.1. hereof, if the
Work is not deemed to be Substantially Completed on or before the scheduled
Completion Date, (i) Landlord agrees to use reasonable efforts to
Substantially Complete the Work as soon as practicable thereafter, (ii) the
Lease shall remain in full force and effect, (iii) Landlord shall not be
deemed to be in breach or default of the Lease or this EXHIBIT B as a result
thereof and Landlord shall have no liability to Tenant as a result of any
delay in occupancy (whether for damages, abatement of all or any portion of
the Rent, or otherwise), and (iv) except to the extent of any Tenant Delays,
which will not affect the Commencement Date but will extend the Completion
Date without any penalty or liability to Landlord, and notwithstanding
anything to the contrary contained in the Lease, the Commencement Date and
the Expiration Date of the term of the Lease (as defined in Section 2 of the
Lease) shall be extended commensurately by the amount of time attributable to
such Force Majeure Delays, and Landlord and Tenant shall execute a written
amendment to the Lease evidencing such extensions of time, substantially in
the form of Exhibit F to the Lease. Subject to the provisions of Section
10.2 of the Lease, the Tenant Improvements shall belong to Landlord and shall
be deemed to be incorporated into the Premises for all purposes of the Lease,
unless Landlord, in writing, indicates otherwise to Tenant.
Upon substantial completion of the Tenant Improvements, Landlord and
Tenant shall inspect the Premises and the Tenant Improvements and develop a
list of "punch list" items. Such list shall be subject to the reasonable
approval of Landlord and Tenant. Upon such approval, Landlord shall promptly
commence the correction of all punch list items and diligently pursue such
work to completion within thirty (30) days of the Commencement Date.
Landlord agrees to complete such items in a manner so as to minimize
interference with Tenant's business. Landlord also agrees, after substantial
completion of the Tenant Improvements, to cause the Premises to be bloom
cleaned.
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7. TENANT DELAYS. There shall be no extension of the scheduled
Commencement Date or Expiration Date of the term of the Lease (as otherwise
permissibly extended in accordance with the provisions of Section 6 above) if
the Work has not been Substantially Completed by the scheduled Commencement
Date due to any delay attributable to Tenant and/or Tenant's Representatives
or Tenant's intended use of the Premises (collectively, "Tenant Delays"),
including, but not limited to, any of the following described events or
occurrences: (a) delays related to changes made or requested by Tenant to the
Work and/or the Final Drawings; (b) the failure of Tenant to furnish all or
any plans, drawings, specifications, finish details or other information
required under Sections 3 and 4 above; (c) the failure of Tenant to comply
with the requirements of Section 10 below; (d) Tenant's requirements for
special work or materials, finishes, or installations other than the Building
Standards or Tenant's requirements for special construction or phasing; (e)
any changes required by the fire department, building or planning department,
building inspectors or any other agency having jurisdiction over the
Building, the Work and/or the Tenant Improvements if such changes are
directly attributable to Tenant's use or Tenant's specialized tenant
improvements; (f) the performance of any additional work pursuant to a Change
Request (defined below in Section 11) which is requested by Tenant; (g) the
performance of work in or about the Premises by any person, firm or
corporation employed by or on behalf of Tenant, including, without
limitation, any failure to complete or any delay in the completion of such
work; or (h) any an.d all delays caused by or arising from acts or omissions
of Tenant and/or Tenant's Representatives, in any manner whatsoever,
including, but not limited to, any and all revisions to the Final Drawings.
Any delays in the construction of the Tenant Improvements due to any of the
events described above, shall in no way extend or affect the date on which
Tenant is required to commence paying Rent under the terms of the Lease. It
is the intention of the parties that all of such delays will be considered
Tenant Delays for which Tenant shall be wholly and completely responsible for
any and all consequences related to such delays, including, without
limitation, any costs and expenses attributable to increases in labor or
materials.
8. TENANT IMPROVEMENT ALLOWANCE. Landlord and Tenant hereby acknowledge
and agree that the Tenant Improvement Costs (defined in Section 9 below) for
the Tenant Improvements, shall be based upon the Final Drawings approved by
Landlord and Tenant in accordance with the provisions of Section 4 above. If
the actual Tenant Improvement Costs varies from the Tenant Improvement
Allowance (hereinafter defined) by more than twenty-five percent (25%), then
Landlord may require any of the following, in its sole discretion: (a)
changes be made to the Final Drawings to reduce the cost of the Tenant
Improvements and Landlord may refuse to sign any construction contract or
Change Orders to the construction contract, as the case may be, until such
changes are made to the sole satisfaction of Landlord; (b) Tenant to deposit
into a separate escrow account cash in an amount equal to the Excess Tenant
Improvement Costs (defined in Section 10 below); (c) Tenant to provide to
Landlord evidence satisfactory to Landlord, in its sole discretion, that
Tenant has adequate financial resources to pay for the Excess Tenant
Improvement Costs, as solely determined by Landlord; and/or (d) Tenant to pay
all of the Excess Tenant Improvement Costs before Landlord's contribution of
the Tenant Improvement Allowance (defined in Section 10 below); provided,
however, in no event or circumstance shall the Tenant Improvement Costs
exceed the maximum amount of two million eight hundred fifty-seven thousand
three hundred fifty and 00/100 Dollars ($2,857,350.00), which amount is based
on the amount of thirty and 00/100 Dollars ($30.00) per rentable square foot
for 95,245 square feet of the Premises which is to be improved, as described
in the Initial Plans. SUBJECT TO THE FOREGOING, LANDLORD SHALL PROVIDE AN
ALLOWANCE FOR THE PLANNING AND CONSTRUCTION OF THE TENANT IMPROVEMENTS FOR
THE WORK TO BE PERFORMED IN THE PREMISES, AS DESCRIBED IN THE INITIAL PLANS
AND THE FINAL DRAWINGS, IN THE AMOUNT OF ONE MILLION FOUR HUNDRED
TWENTY-EIGHT THOUSAND SIX HUNDRED SEVENTY-FIVE AND 00/100 DOLLARS
($1,428,675.00) (THE "TENANT IMPROVEMENT ALLOWANCE") BASED UPON AN ALLOWANCE
OF FIFTEEN AND 00/100 DOLLARS ($15.00) PER RENTABLE SQUARE FOOT FOR 95,245
SQUARE FEET OF THE PREMISES WHICH IS TO BE IMPROVED, AS DESCRIBED IN THE
INITIAL PLANS AND THE FINAL DRAWINGS. Tenant shall not be entitled to any
credit, abatement or payment from Landlord in the event that the amount of
the Tenant Improvement Allowance specified above exceeds the actual Tenant
Improvement Costs. The Tenant Improvement Allowance shall only be used for
tenant improvements typically installed by Landlord in R&D buildings. The
Tenant Improvement Allowance shall be the maximum contribution by Landlord
for the Tenant Improvement Costs and shall be subject to the provisions of
Section 10 below.
9. TENANT IMPROVEMENT COSTS. The Tenant Improvements' cost (Tenant
Improvement Costs") shall mean and include any and all costs and expenses of
the Work, including, without limitation, all of the following:
(a) All costs of preliminary space planning and final architectural
and engineering plans and specifications (including, without limitation, the
scope of work, all plans and specifications, the Initial Plans and the Final
Drawings) for the Tenant Improvements, and architectural fees, engineering
costs and fees, and other costs associated with completion of said plans;
(b) All costs of obtaining building permits and other necessary
authorizations and approvals from the City of Newark and other applicable
jurisdictions;
(c) All costs of interior design and finish schedule plans and
specifications including as-built drawings;
(d) All direct and indirect costs of procuring, constructing and
installing the Tenant Improvements in the Premises, including, but not
limited to, the construction fee for overhead and profit, the cost of all
on-site supervisory and administrative staff, office, equipment and temporary
services rendered by Landlord's consultants and the General Contractor in
connection with construction of the Tenant Improvements, and all labor
(including overtime) and materials constituting the Work;
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(e) All fees payable to the General Contractor, architect and
Landlord's engineering firm if they are required by Tenant to redesign any
portion of the Tenant Improvements following Tenant's approval of the Final
Drawings; and
(f) A construction management fee payable to Landlord in the amount of
four percent (4%) of all direct and indirect costs of procuring, constructing
and installing the Tenant Improvements in the Premises and the Building.
10. EXCESS TENANT IMPROVEMENT COSTS. Prior to commencing the Work,
Landlord shall submit to Tenant a written statement of the actual Tenant
Improvement Costs (the "Actual TI Costs") (which shall include the amount of
any overtime projected as necessary to Substantially Complete the Work by the
Completion Date) as then known by Landlord, and such statement shall indicate
the amount, if any, by which the Actual TI Costs exceeds the Tenant
Improvement Allowance (the "Excess Tenant Improvement Costs"). The term
"Excess Tenant Improvement Costs" shall also include the costs related to any
and all Change Orders. Tenant agrees, within three (3) days after submission
to it of such statement, to execute and deliver to Landlord, in the form then
in use by Landlord, an authorization to proceed with the Work and notice of
its election to either amortize the.Excess Tenant Improvement Costs over the
initial term of the Lease or to pay to Landlord such Excess Tenant
Improvement Costs in cash in one of the following described manners: (a) A
portion of the Excess Tenant Improvement Costs up to a maximum amount of four
hundred seventy-six thousand two hundred twenty-five and 00/100 Dollars
($476,225.00), based on five and 00/100 Dollars ($5.00) per rentable square
foot for 95,245 square feet of the Premises, shall be amortized over the
initial term of the Lease at the rate of ten percent (10%) per annum and such
amortized amount shall be paid by Tenant with, and as part of, the Rent for
the Premises in accordance with the provisions and requirements of Section 3
of the Lease (the "Amortized Excess TI Costs"). The portion of the Excess
Tenant Improvement Costs in excess of the Amortized Excess TI Costs shall be
paid by Tenant, in cash, to Landlord concurrently with Tenant's delivery to
Landlord of the aforementioned signed written authorization to proceed. No
Work shall be commenced until Tenant has fully complied with the preceding
provisions of this Section 10. If Tenant fails to remit the sums so demanded
by Landlord pursuant to Section 8 above and this Section 10 within the time
periods required, Landlord may, at its option, declare Tenant in default
under the Lease; or (b) Tenant shall faithfully pay all of the Excess Tenant
Improvement Costs to Landlord in cash, concurrently with Tenant's delivery to
Landlord of the aforementioned signed written authorization to proceed. No
Work shall be commenced until Tenant has fully complied with the preceding
provisions of this Section 10. If Tenant fails to remit the sums so demanded
by Landlord pursuant to Section 8 above and this Section 10 within the time
periods required, Landlord may, at its option, declare Tenant in default
under the Lease.
11. CHANGE REQUESTS. No changes or revisions to the approved Final
Drawings shall be made by either Landlord or Tenant unless approved in
writing by both parties. Upon Tenant's request and submission by Tenant (at
Tenant's sole cost and expense) of the necessary information and/or plans and
specifications for any changes or revisions to the approved Final Drawings
and/or for any work other than the Work described in the approved Final
Drawings ("Change Requests") and the approval by Landlord of such Change
Request(s), which approval Landlord agrees shall not be unreasonably withheld
or delayed, Landlord shall perform the additional work associated with the
approved Change Request(s), at Tenant's sole cost and expense, subject,
however, to the following provisions of this Section 11. Prior to commencing
any additional work related to the approved Change Request(s), Landlord shall
submit to Tenant a written statement of the cost of such additional work and
a proposed tenant change order therefor ("Change Order") in the standard form
then in use by Landlord. Tenant shall execute and deliver to Landlord such
Change Order and shall pay the entire cost of such additional work in the
following described manner. Any costs related to such approved Change
Request(s), Change Order and any delays associated therewith, shall be added
to the Tenant Improvement Costs and, if the total of such Tenant Improvement
Costs exceed the Tenant Improvement Allowance, shall be paid for by Tenant as
and with any Excess Tenant Improvement Costs as set forth in Section 10
above. The billing for such additional costs to Tenant shall be accompanied
by evidence of the amounts billed as is customarily used in the business.
Costs related to approved Change Requests and Change Orders shall include,
without limitation, any architectural or design fees, Landlord's construction
fee for overhead and profit, the cost of all on-site supervisory and
administrative staff, office, equipment and temporary services rendered by
Landlord and/or Landlord's consultants in connection with such Change
Request, and the General Contractor's price for effecting the change. If
Tenant fails to execute or deliver such Change Order, or to pay the costs
related thereto, then Landlord shall not be obligated to do any additional
work related to such approved Change Request(s) and/or Change Orders, and
Landlord may proceed to perform only the Work, as specified in the Final
Drawings.
12. TERMINATION. If the Lease is terminated prior to the Completion Date,
for any reason due to the default of Tenant hereunder, in addition to any
other remedies available to Landlord under the Lease, Tenant shall pay to
Landlord as Additional Rent under the Lease, within five (5) days of receipt
of a statement therefor, any and all costs incurred by Landlord and not
reimbursed or otherwise paid by Tenant through the date of termination in
connection with the Tenant Improvements to the extent planned, installed
and/or constructed as of such date of termination, including, but not limited
to, any costs related to the removal of all or any portion of the Tenant
Improvements and restoration costs related thereto. Subject to the
provisions of Section 10.2 of the Lease, upon the expiration or earlier
termination of the Lease, Tenant shall not be required to remove the Tenant
Improvements it being the intention of the parties that the Tenant
Improvements are to be considered incorporated into the Building.
Notwithstanding anything to the contrary contained herein, Landlord shall
have the right to terminate the Lease, upon written notice to Tenant, if
Landlord is unable to obtain a building permit for the Tenant Improvements
within ninety (90) days from the date the Lease is signed by Tenant, despite
Landlord's diligent efforts to do so.
4
13. TENANT ACCESS. Landlord, hereby grants Tenant the right to have access
to the Premises prior to the Completion Date to allow Tenant to do other work
required by Tenant to make the Premises ready for Tenant's use and occupancy
(the "Tenant's Pre-Occupancy Work"). It shall be a condition to the grant by
Landlord and continued effectiveness of such right that:
(a) Tenant shall give to Landlord a written request to have such
access not less than five (5) business days prior to the date on which such
proposed access will commence (the "Access Notice"). The Access Notice shall
contain or be accompanied by each of the following items, all in form and
substance reasonably acceptable to Landlord: (i) a detailed description of
and schedule for Tenant's Pre-Occupancy Work; (ii) the names and addresses of
all contractors, subcontractors and material suppliers and all other
representatives of Tenant who or which will be entering the Premises on
behalf of Tenant to perform Tenant's Pre-Occupancy Work or will be supplying
materials for such work, and the approximate number of individuals, itemized
by trade, who will be present in the Premises; (iii) copies of all contracts,
subcontracts, material purchase orders, plans and specifications pertaining
to Tenant's Pre-Occupancy Work; (iv) copies of all licenses and permits
required in connection with the performance of Tenant's Pre-Occupancy Work;
(v) certificates of insurance (in amounts satisfactory to Landlord and with
the parties identified in, or required by, the Lease named as additional
insureds) and instruments of indemnification against all claims, costs,
expenses, penalties, fines, and damages which may arise in connection with
Tenant's Pre-Occupancy Work; and (vi) assurances of the ability of Tenant to
pay for all of Tenant's Pre-Occupancy Work and/or a letter of credit or other
security deemed appropriate by Landlord securing Tenant's lien-free
completion of Tenant's Pre-Occupancy Work.
(b) Such pre-term access by Tenant and Tenant's employees, agents,
contractors, consultants, workmen, mechanics, suppliers and invitees shall be
subject to scheduling by Landlord.
(c) Tenant's employees, agents, contractors, consultants, workmen,
mechanics, suppliers and invitees shall fully cooperate, work in harmony and
not, in any manner, interfere with Landlord or Landlord's agents or
representatives in performing the Work and any additional work pursuant to
approved Change Orders, Landlord's work in other areas of the Building or the
Park, or the general operation. of the Building. If at any time any such
person representing Tenant shall not be cooperative or shall otherwise cause
or threaten to cause any such disharmony or interference, including, without
limitation, labor disharmony, and Tenant fails to immediately institute and
maintain corrective actions as directed by Landlord, then Landlord may revoke
access to such party upon twenty-four (24) hours' prior written notice to
Tenant.
(d) Any such entry into and occupancy of the Premises or any portion
thereof by Tenant or any person or entity working for or on behalf of Tenant
shall be deemed to be subject to all of the terms, covenants, conditions and
provisions of the Lease, excluding only the covenant to pay Rent. Landlord
shall not be liable for any injury, loss or damage which may occur to any of
Tenant's Pre-Occupancy Work made in or about the Premises or to any property
placed therein prior to the commencement of the term of the Lease, the same
being at Tenant's sole risk and liability. Tenant shall be liable to
Landlord for any damage to any portion of the Premises, the Work or the
additional work related to any approved Change Orders caused by Tenant or any
of Tenant's employees, agents, contractors, consultants, workmen, mechanics,
suppliers and invitees. In the event that the performance of Tenant's
Pre-Occupancy Work causes extra costs to be incurred by Landlord or requires
the use of other Building services, Tenant shall promptly reimburse Landlord
for such extra costs and/or shall pay Landlord for such other Building
services at Landlord's standard rates then in effect.
14. LEASE PROVISIONS; CONFLICT. The terms and provisions of the Lease,
insofar as they are applicable, in whole or in part, to this EXHIBIT B, are
hereby incorporated herein by reference, and specifically including all of
the provisions of Section 31 of the Lease. In the event of any conflict
between the terms of the Lease and this EXHIBIT B, the terms of this EXHIBIT
B shall prevail. Any amounts payable by Tenant to Landlord hereunder shall
be deemed to be Additional Rent under the Lease and, upon any default in the
payment of same, Landlord shall have all rights and remedies available to it
as provided for in the Lease.
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EXHIBIT B-1 TO LEASE AGREEMENT
LINCOLN BRIDGEWAY TECHNOLOGY CENTER
BUILDING SHELL
* High quality, painted tilt-up concrete construction
* 5" reinforced, sealed concrete slab
* 6" concrete truck dock aprons (reinforced with 6" gravel base)
* 8 - 9' x 10' dock height truck doors per building
* 2 - 10' x 12' drive through truck doors per building
* 20' - 24' clear height, 12.5 lbs./sf rated roof
* 2000A, 480v, 3 phase electrical service per building
* 0.60 GPM on 3,000 sf fire sprinklers
INITIALS:
TENANTS:
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LANDLORD:
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EXHIBIT C TO LEASE AGREEMENT
RULES & REGULATIONS
This exhibit, entitled "Rules & Regulations", is and shall constitute EXHIBIT
C to that certain Lease Agreement dated February 11, 1997 (the "Lease"), by
and between WHLNF REAL ESTATE LIMITED PARTNERSHIP, a Delaware limited
partnership ("Landlord") and InVision Technologies, Inc., a Delaware
corporation ("Tenant") for the leasing of certain premises located in the
Lincoln Bridgeway Technology Center Park at 7151 Gateway Boulevard, Newark,
California (the "Premises"). The terms, conditions and provisions of this
EXHIBIT C are hereby incorporated into and are made a part of the Lease. Any
capitalized terms used herein and not otherwise defined herein shall have the
meaning ascribed to such terms as set forth in the Lease:
1. No advertisement, picture or sign of any sort shall be displayed on or
outside the Premises or the Building without the prior written consent
of Landlord. Landlord shall have the right to remove any such
unapproved item without notice and at Tenant's expense.
2. Tenant shall not regularly park motor vehicles in designated parking
areas after the conclusion of normal daily business activity.
3. Tenant shall not use any method of heating or air conditioning other
than that supplied by Landlord without the prior written consent of
Landlord, which shall not be unreasonably withheld or delayed.
4. All window coverings installed by Tenant and visible from the outside
of the Building require the prior written approval of Landlord.
5. Tenant shall not use, keep or permit to be used or kept any foul or
noxious gas or substance or any flammable or combustible materials on
or around the Premises, the Building or the Park, except as otherwise
permitted in this Lease.
6. Tenant shall not alter any lock or install any new locks or bolts on
any door at the Premises without giving Landlord prior notice.
7. Tenant agrees not to make any duplicate keys without the prior consent
of Landlord.
8. Tenant shall park motor vehicles in those general parking areas as
designated by Landlord except for loading and unloading. During those
periods of loading and unloading, Tenant shall not unreasonably
interfere with traffic flow within the Park and loading and unloading
areas of other tenants.
9. Tenant shall not disturb, solicit or canvas any occupant of the
Building or Park and shall cooperate to prevent same.
10. No person shall go on the roof without Landlord's permission.
11. Business machines and mechanical equipment belonging to Tenant which
cause noise or vibration that may be transmitted to the structure of
the Building, to such a degree as to be objectionable to Landlord or
other Tenants, shall be placed and maintained by Tenant, at Tenant's
expense, on vibration eliminators or other devices sufficient to
eliminate noise or vibration.
12. All goods, including material used to store goods, delivered to the
Premises of Tenant shall be immediately moved into the Premises and
shall not be left in parking or receiving areas overnight.
13. Tractor trailers which must be unhooked or parked with dolly wheels
beyond the concrete loading areas must use steel plates or wood blocks
under the dolly wheels to prevent damage to the asphalt paving
surfaces. No parking or storing of such trailers will be permitted in
the auto parking areas of the Park or on streets adjacent thereto.
14. Forklifts which operate on asphalt paving areas shall not have solid
rubber tires and shall only use tires that do not damage the asphalt.
15. Tenant is responsible for the storage and removal of all trash and
refuse. All such trash and refuse shall be contained in suitable
receptacles stored behind screened enclosures at locations approved by
Landlord.
16. Tenant shall not store or permit the storage or placement of goods, or
merchandise or pallets or equipment of any sort in or around the
Premises, the Building, the Park or any of the Common Areas of the
foregoing. No displays or sales of merchandise shall be allowed in the
parking lots or other Common Areas.
17. Tenant shall not permit any animals, including, but not limited to, any
household pets, to be brought or kept in or about the Premises, the
Building, the Park or any of the Common Areas of the foregoing.
18. Tenant shall not permit any motor vehicles to be washed on any portion
of the Premises or in the Common Areas of the Park, nor shall Tenant
permit mechanical work or maintenance of motor vehicles to be performed
on any portion of the Premises or in the Common Areas of the Park.
INITIALS:
TENANTS: ------------------
LANDLORD: ------------------
EXHIBIT E
HAZARDOUS MATERIALS DISCLOSURE CERTIFICATE
Your cooperation in this matter is appreciated. Initially, the information
provided by you in this Hazardous Materials Disclosure Certificate is
necessary for the Landlord (identified below) to evaluate and finalize a
lease agreement with you as tenant. After a lease agreement is signed by you
and the Landlord (the "Lease Agreement"), on an annual basis in accordance
with the provisions of Section 29 of the signed Lease Agreement, you are to
provide an update to the information initially provided by you in this
certificate. The information contained in the initial Hazardous Materials
Disclosure Certificate and each annual certificate provided by you thereafter
will be maintained in confidentiality by Landlord subject to release and
disclosure as required by (i) any lenders and owners and their respective
environmental consultants, (ii) any prospective purchaser(s) of all or any
portion of the property on which the Premises are located, (iii) Landlord to
defend itself or its lenders, partners or representatives against any claim
or demand, and (iv) any laws, rules, regulations, orders, decrees, or
ordinances, including, without limitation, court orders or subpoenas. Any
and all capitalized terms used herein, which are not otherwise defined
herein, shall have the same meaning ascribed to such term in the signed Lease
Agreement. Any questions regarding this certificate should be directed to,
and when completed, the certificate should be delivered to:
Landlord:
---------------------------------------------------------------------
---------------------------------------------------------------------
c/o Lincoln Property Company Management Services, Inc.
101 Lincoln Centre Drive, Fourth Floor
Foster City, California 94404
Attn:
Phone: (415) 571-2200
Name of (Prospective) Tenant:
---------------------------------------------------
Mailing Address:
----------------------------------------------------------------
--------------------------------------------------------------------------------
Contact Person, Title and Telephone Number(s):
----------------------------------
Contact Person for Hazardous Waste Materials Management and Manifests and
Telephone Number(s):
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Address of (Prospective) Premises:
----------------------------------------------
Length of (Prospective) initial Term:
-------------------------------------------
1. GENERAL INFORMATION:
Describe the initial proposed operations to take place in, on, or about
the Premises, including, without limitation, principal products
processed, manufactured or assembled services and activities to be
provided or otherwise conducted. Existing tenants should describe any
proposed changes to on-going operations.
--------------------------------------------------------------------------
--------------------------------------------------------------------------
2. USE, STORAGE AND DISPOSAL OF HAZARDOUS MATERIALS
2.1 Will any Hazardous Materials be used, generated, stored or
disposed of in, on or about the Premises? Existing tenants should
describe any Hazardous Materials which continue to be used,
generated, stored or disposed of in, on or about the Premises.
Wastes Yes / / No / /
Chemical Products Yes / / No / /
Other Yes / / No / /
If Yes is marked, please explain:
-----------------------------------
--------------------------------------------------------------------
--------------------------------------------------------------------
2.2 If Yes is marked in Section 2.1, attach a list of any Hazardous
Materials to be used, generated, stored or disposed of in, on or
about the Premises, including the applicable hazard class and an
estimate of the quantities of such Hazardous Materials at any
given time; estimated annual throughput; the proposed location(s)
and method of storage (excluding nominal amounts of ordinary
household cleaners and janitorial supplies which are not
regulated by any Environmental Laws); and the proposed
location(s) and method of disposal for each Hazardous Material,
including, the estimated frequency, and the proposed contractors
or subcontractors. Existing tenants should attach a list setting
forth the information requested
1
above and such list should 'include actual data from on-going
operations and the identification of any variations in such
information from the prior year's certificate.
3. STORAGE TANKS AND SUMPS
3.1 Is any above or below ground storage of gasoline, diesel,
petroleum, or other Hazardous Materials in tanks or sumps
proposed in, on or about the Premises? Existing tenants should
describe any such actual or proposed activities.
Yes / / No / /
If Yes, please explain:
---------------------------------------------
--------------------------------------------------------------------
--------------------------------------------------------------------
4. WASTE MANAGEMENT
4.1 Has your company been issued an EPA Hazardous Waste Generator
I.D. Number? Existing tenants should describe any additional
identification numbers issued since the previous certificate.
Yes / / No / /
4.2 Has your company filed a biennial or quarterly reports as a
hazardous waste generator? Existing tenants should describe any
new reports filed.
Yes / / No / /
If Yes, attach a copy of the most recent report filed.
If yes, attach a copy of the most recent report filed.
5. WASTEWATER TREATMENT AND DISCHARGE
5.1 Will your company discharge wastewater or other wastes to:
storm drain? sewer?
-------- --------
surface water? no wastewater or other wastes
-------- -------- discharged.
Existing tenants should indicate any actual discharges. If so,
describe the nature of any proposed or actual discharge(s).
--------------------------------------------------------------------
--------------------------------------------------------------------
5.2 Will any such wastewater or waste be treated before discharge?
Yes / / No / /
If Yes, describe the type of treatment proposed to be conducted.
Existing tenants should describe the actual treatment conducted.
--------------------------------------------------------------------
--------------------------------------------------------------------
6. AIR DISCHARGES
6.1 Do you plan for any air filtration systems or stacks to be used
in your company's operations in, on or about the Premises that
will discharge into the air; and will such air emissions be
monitored? Existing tenants should indicate whether or not there
are any such air filtration systems or stacks in use in, on or
about the Premises which discharge into the air and whether such
air emissions are being monitored.
Yes / / No / /
If Yes, please describe.
--------------------------------------------
--------------------------------------------------------------------
--------------------------------------------------------------------
6.2 Do you propose to operate any of the following types of
equipment, or any other equipment requiring an air emissions
permit? Existing tenants should specify any such equipment being
operated in, on or about the Premises.
Spray booth(s) Incinerator(s)
-------- --------
Dip tank(s) Other (please describe)
-------- --------
2
Drying oven(s) No Equipment Requiring air Permits
-------- --------
If Yes, please describe.
--------------------------------------------
--------------------------------------------------------------------
--------------------------------------------------------------------
7. HAZARDOUS MATERIALS DISCLOSURES
7.1 Has your company prepared or will it be required to prepare a
Hazardous, Materials management plan ("Management Plan") pursuant
to Fire Department or other governmental or regulatory agencies'
requirements? Existing tenants should indicate whether or not a
Management Plan is required and has been prepared.
Yes / / No / /
If yes, attach a copy of the Management Plan. Existing tenants
should attach a copy of any required updates to the Management
Plan.
7.2 Are any of the Hazardous Materials, and in particular chemicals,
proposed to be used in your operations in, on or about the
Premises regulated under Proposition 65? Existing tenants should
indicate whether or not there are any new Hazardous Materials
being so used which are regulated under Proposition 65.
Yes / / No / /
If Yes, please explain:
---------------------------------------------
--------------------------------------------------------------------
--------------------------------------------------------------------
8. ENFORCEMENT ACTIONS AND COMPLAINTS
8.1 With respect to Hazardous Materials or Environmental Laws, has
your company ever been subject to any agency enforcement actions,
administrative orders, or consent decrees or has your company
received requests for information, notice or demand letters, or
any other inquiries regarding its operations? Existing tenants
should indicate whether or not any such actions, orders or
decrees have been, or are in the process of being, undertaken or
if any such requests have been received.
Yes / / No / /
If yes, describe the actions, orders or decrees and any
continuing compliance obligations imposed as a result of these
actions, orders or decrees and also describe any requests,
notices or demands, and attach a copy of all such documents.
Existing tenants should describe and attach a copy of any new
actions, orders, decrees, requests, notices or demands not
already delivered to Landlord pursuant to the provisions of
Section 29 of the signed Lease Agreement.
8.2 Have there ever been, or are there now pending, any lawsuits
against your company regarding any environmental or health and
safety concerns?
Yes / / No / /
If yes, describe any such lawsuits and attach copies of the
complaint(s), cross-complaint(s), pleadings and all other
documents related thereto as requested by Landlord. Existing
tenants should describe and attach a copy of any new
complaint(s), cross-complaint(s), pleadings and other related
documents not already delivered to Landlord pursuant to the
provisions of Section 29 of the signed Lease Agreement.
--------------------------------------------------------------------
--------------------------------------------------------------------
--------------------------------------------------------------------
8.3 Have there been any problems or complaints from adjacent tenants,
owners or other neighbors at your company's current facility with
regard to environmental or health and safety concerns? Existing
tenants should indicate whether or not there have been any such
problems or complaints from adjacent tenants, owners or other
neighbors at, about or near the Premises.
Yes / / No / /
If yes, please describe. Existing tenants should describe any
such problems or complaints not already disclosed to Landlord
under the provisions of the signed Lease Agreement.
--------------------------------------------------------------------
--------------------------------------------------------------------
3
9. PERMITS AND LICENSES
9.1 Attach copies of all Hazardous Materials permits and licenses
including a Transporter Permit number issued to your company with
respect to its proposed operations in, on or about the Premises,
including, without limitation, any wastewater discharge permits,
air emissions permits, and use permits or approvals. Existing
tenants should attach copies of any new permits and licenses as
well as any renewals of permits or licenses previously issued.
The undersigned hereby acknowledges and agrees that (A) this Hazardous
Materials Disclosure Certificate is being delivered in connection with, and
as required by, Landlord in connection with the evaluation and finalization
of a Lease Agreement and will be attached thereto as an exhibit; (B) that
this Hazardous Materials Disclosure Certificate is being delivered in
accordance with, and as required by, the provisions of Section 29 of the
Lease Agreement; and (c) that Tenant shall have and retain full and complete
responsibility and liability with respect to any of the Hazardous Materials
disclosed in the HazMat Certificate notwithstanding Landlord's/Tenant's
receipt and/or approval of such certificate. Tenant further agrees that none
of the following described acts or events shall be construed or otherwise
interpreted as either (a) excusing, diminishing or otherwise limiting Tenant
from the requirement to fully and faithfully perform its obligations under
the Lease with respect to Hazardous Materials, including, without limitation,
Tenant's indemnification of the Indemnitees and compliance with all
Environmental Laws, or (b) imposing upon Landlord, directly or indirectly,
any duty or liability with respect to any such Hazardous Materials,
including, without limitation, any duty on Landlord to investigate or
otherwise verify the accuracy of the representations and statements made
therein or to ensure that Tenant is in compliance with all Environmental
Laws; (i) the delivery of such certificate to Landlord and/or Landlord's
acceptance of such certificate, (ii) Landlord's review and approval of such
certificate, (iii) Landlord's failure to obtain such certificate from Tenant
at any time, or (iv) Landlord's actual or constructive knowledge of the types
and quantities of Hazardous Materials being used, stored, generated, disposed
of or transported on or about the Premises by Tenant or Tenant's
Representatives. Notwithstanding the foregoing or anything to the contrary
contained herein, the undersigned acknowledges and agrees that Landlord and
its partners, lenders and representatives may, and will, rely upon the
statements, representations, warranties, and certifications made herein and
the truthfulness thereof in entering into the Lease Agreement and the
continuance thereof throughout the term, and any renewals thereof, of the
Lease Agreement.
I (print name) , acting with full authority to bind the
(proposed) Tenant and on behalf of the (proposed) Tenant, certify, represent
and warrant that the information contained in this certificate is true and
correct.
(PROSPECTIVE) TENANT:
By:
----------------------------------------------------
Title:
-------------------------------------------------
Date:
--------------------------------------------------
INITIALS:
TENANT:
----------------
LANDLORD:
----------------
4
EXHIBIT F
FIRST AMENDMENT TO LEASE AGREEMENT
CHANGE OF COMMENCEMENT DATE
This First Amendment to Lease Agreement (the "Amendment") is made and entered
into as of ____________________, by and between ___________________
("Landlord"), and ("Tenant"), with reference to the following facts:
RECITALS
A. Landlord and Tenant have entered into that certain Lease Agreement
dated ______________ (the "Lease"), for the leasing of certain
premises containing approximately _____________ rentable square feet of
space located at , California (the "Premises") as such Premises are
more fully described in the Lease.
B. Landlord and Tenant wish to amend the Commencement Date of the Lease.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Landlord and Tenant hereby agree as follows:
1. RECITALS: Landlord and Tenant agree that the above recitals are
true and correct.
2. The Commencement Date of the Lease shall be The last day of the
Term of the Lease (the "Expiration Date") shall be The dates on
which the Base Rent will be adjusted are:
3. The last day of the Term of the Lease (the "Expiration Date") shall
be __________.
4. The date on which the Base Rent will be adjusted are:
for the period _______ to ________ the monthly Base Rent shall be
$_____________;
for the period _______ to ________ the monthly Base Rent shall be
$_____________; and
for the period _______ to ________ the monthly Base Rent shall be
$_____________
5. EFFECT OF AMENDMENT: Except as modified herein, the terms and
conditions of the Lease shall remain unmodified and continue in
full force and effect. In the event of any conflict between the
terms and conditions of the Lease and this Amendment, the terms
and conditions of this Amendment shall prevail.
6. DEFINITIONS: Unless otherwise defined in this Amendment, all
terms not defined in this Amendment shall have the meaning set
forth in the Lease.
7. AUTHORITY: Subject to the provisions of the Lease, this Amendment
shall be binding upon and inure to the benefit of the parties
hereto, their respective heirs, legal representatives, successors
and assigns. Each party hereto and the persons signing below
warrant that the person signing below on such party's behalf is
authorized to do so and to bind such party to the terms of this
Amendment.
8. The terms and provisions of the Lease are hereby incorporated in
this Amendment.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
and year first above written.
INITIALS:
TENANTS:
------------------
LANDLORD:
------------------
EXHIBIT G
TENANT'S INITIAL HAZARDOUS MATERIALS DISCLOSURE CERTIFICATE
Your cooperation in this matter is appreciated. Initially, the information
provided by you in this Hazardous Materials Disclosure Certificate is
necessary for the Landlord (identified below) to evaluate and finalize a
lease agreement with you as tenant. After a lease agreement is signed by you
and the Landlord (the "Lease Agreement"), on an annual basis in accordance
with the provisions of Section 29 of the signed Lease Agreement, you are to
provide an update to the information initially provided by you in this
certificate. The information contained in the initial Hazardous Materials
Disclosure Certificate and each annual certificate provided by you thereafter
will be maintained in confidentiality by Landlord subject to release and
disclosure as required by (i) any lenders and owners and their respective
environmental consultants, (ii) any prospective purchaser(s) of all or any
portion of the property on which the Premises are located, (iii) Landlord to
defend itself or its lenders, partners or representatives against any claim
or demand, and (iv) any laws, rules, regulations, orders, decrees, or
ordinances, including, without limitation, court orders or subpoenas. Any
and all capitalized terms used herein, which are not otherwise defined
herein, shall have the same meaning ascribed to such term in the signed Lease
Agreement. Any questions regarding this certificate should be directed to,
and when completed, the certificate should be delivered to:
Landlord:
--------------------------------------------------------------------
--------------------------------------------------------------------
c/o Lincoln Property Company Management Services, Inc.
101 Lincoln Centre Drive, Fourth Floor
Foster City, California 94404
Attn:
Phone: (415) 571-2200
Name of (Prospective) Tenant:
---------------------------------------------------
Mailing Address:
----------------------------------------------------------------
--------------------------------------------------------------------------------
Contact Person, Title and Telephone Number(s):
----------------------------------
Contact Person for Hazardous Waste Materials Management and Manifests and
Telephone Number(s):
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Address of (Prospective) Premises:
----------------------------------------------
Length of (Prospective) initial Term:
-------------------------------------------
1. GENERAL INFORMATION:
Describe the initial proposed operations to take place in, on, or about
the Premises, including, without limitation, principal products
processed, manufactured or assembled services and activities to be
provided or otherwise conducted. Existing tenants should describe any
proposed changes to on-going operations.
--------------------------------------------------------------------------
--------------------------------------------------------------------------
2. USE, STORAGE AND DISPOSAL OF HAZARDOUS MATERIALS
2.1 Will any Hazardous Materials be used, generated, stored or
disposed of in, on or about the Premises? Existing tenants should
describe any Hazardous Materials which continue to be used,
generated, stored or disposed of in, on or about the Premises.
Wastes Yes / / No / /
Chemical Products Yes / / No / /
Other Yes / / No / /
If Yes is marked, please explain:
-----------------------------------
--------------------------------------------------------------------
--------------------------------------------------------------------
2.2 If Yes is marked in Section 2.1, attach a list of any Hazardous
Materials to be used, generated, stored or disposed of in, on or
about the Premises, including the applicable hazard class and an
estimate of the quantities of such Hazardous Materials at any
given time; estimated annual throughput; the proposed
location(s) and method of storage (excluding nominal amounts of
ordinary household cleaners and janitorial supplies which are not
regulated by any Environmental Laws); and the proposed
location(s) and method of disposal for each Hazardous Material,
including, the estimated frequency, and the proposed contractors
or subcontractors. Existing tenants should attach a list setting
forth the information requested
1
above and such list should 'include actual data from on-going
operations and the identification of any variations in such
information from the prior year's certificate.
3. STORAGE TANKS AND SUMPS
3.1 Is any above or below ground storage of gasoline, diesel,
petroleum, or other Hazardous Materials in tanks or sumps
proposed in, on or about the Premises? Existing tenants should
describe any such actual or proposed activities.
Yes / / No / /
If Yes, please explain:
---------------------------------------------
--------------------------------------------------------------------
--------------------------------------------------------------------
4. WASTE MANAGEMENT
4.1 Has your company been issued an EPA Hazardous Waste Generator
I.D. Number? Existing tenants should describe any additional
identification numbers issued since the previous certificate.
Yes / / No / /
4.2 Has your company filed a biennial or quarterly reports as a
hazardous waste generator? Existing tenants should describe any
new reports filed.
Yes / / No / /
If Yes, attach a copy of the most recent report filed.
If yes, attach a copy of the most recent report filed.
5. WASTEWATER TREATMENT AND DISCHARGE
5.1 Will your company discharge wastewater or other wastes to:
storm drain? sewer?
-------- --------
surface water? no wastewater or other wastes
-------- -------- discharged.
Existing tenants should indicate any actual discharges. If so,
describe the nature of any proposed or actual discharge(s).
--------------------------------------------------------------------
--------------------------------------------------------------------
5.2 Will any such wastewater or waste be treated before discharge?
Yes / / No / /
If Yes, describe the type of treatment proposed to be conducted.
Existing tenants should describe the actual treatment conducted.
--------------------------------------------------------------------
--------------------------------------------------------------------
6. AIR DISCHARGES
6.1 Do you plan for any air filtration systems or stacks to be used
in your company's operations in, on or about the Premises that
will discharge into the air; and will such air emissions be
monitored? Existing tenants should indicate whether or not there
are any such air filtration systems or stacks in use in, on or
about the Premises which discharge into the air and whether such
air emissions are being monitored.
Yes / / No / /
If Yes, please describe.
--------------------------------------------
--------------------------------------------------------------------
--------------------------------------------------------------------
6.2 Do you propose to operate any of the following types of
equipment, or any other equipment requiring an air emissions
permit? Existing tenants should specify any such equipment being
operated in, on or about the Premises.
Spray booth(s) Incinerator(s)
-------- --------
Dip tank(s) Other (please describe)
-------- --------
2
Drying oven(s) No Equipment Requiring air Permits
-------- --------
If Yes, please describe.
--------------------------------------------
--------------------------------------------------------------------
--------------------------------------------------------------------
7. HAZARDOUS MATERIALS DISCLOSURES
7.1 Has your company prepared or will it be required to prepare a
Hazardous, Materials management plan ("Management Plan") pursuant
to Fire Department or other governmental or regulatory agencies'
requirements? Existing tenants should indicate whether or not a
Management Plan is required and has been prepared.
Yes / / No / /
If yes, attach a copy of the Management Plan. Existing tenants
should attach a copy of any required updates to the Management
Plan.
7.2 Are any of the Hazardous Materials, and in particular chemicals,
proposed to be used in your operations in, on or about the
Premises regulated under Proposition 65? Existing tenants should
indicate whether or not there are any new Hazardous Materials
being so used which are regulated under Proposition 65.
Yes / / No / /
If Yes, please explain:
--------------------------------------------------------------------
--------------------------------------------------------------------
8. ENFORCEMENT ACTIONS AND COMPLAINTS
8.1 With respect to Hazardous Materials or Environmental Laws, has
your company ever been subject to any agency enforcement actions,
administrative orders, or consent decrees or has your company
received requests for information, notice or demand letters, or
any other inquiries regarding its operations? Existing tenants
should indicate whether or not any such actions, orders or
decrees have been, or are in the process of being, undertaken or
if any such requests have been received.
Yes / / No / /
If yes, describe the actions, orders or decrees and any
continuing compliance obligations imposed as a result of these
actions, orders or decrees and also describe any requests,
notices or demands, and attach a copy of all such documents.
Existing tenants should describe andattach a copy of any new
actions, orders, decrees, requests, notices or demands not
already delivered to Landlord pursuant to the provisions of
Section 29 of the signed Lease Agreement.
8.2 Have there ever been, or are there now pending, any lawsuits
against your company regarding any environmental or health and
safety concerns?
Yes / / No / /
If yes, describe any such lawsuits and attach copies of the
complaint(s), cross-complaint(s), pleadings and all other
documents related thereto as requested by Landlord. Existing
tenants should describe and attach a copy of any new
complaint(s), cross-complaint(s), pleadings and other related
documents not already delivered to Landlord pursuant to the
provisions of Section 29 of the signed Lease Agreement.
--------------------------------------------------------------------
--------------------------------------------------------------------
--------------------------------------------------------------------
8.3 Have there been any problems or complaints from adjacent tenants,
owners or other neighbors at your company's current facility with
regard to environmental or health and safety concerns? Existing
tenants should indicate whether or not there have been any such
problems or complaints from adjacent tenants, owners or other
neighbors at, about or near the Premises.
Yes / / No / /
If yes, please describe. Existing tenants should describe any
such problems or complaints not already disclosed to Landlord
under the provisions of the signed Lease Agreement.
--------------------------------------------------------------------
--------------------------------------------------------------------
3
9. PERMITS AND LICENSES
9.1 Attach copies of all Hazardous Materials permits and licenses
including a Transporter Permit number issued to your company with
respect to its proposed operations in, on or about the Premises,
including, without limitation, any wastewater discharge permits,
air emissions permits, and use permits or approvals. Existing
tenants should attach copies of any new permits and licenses as
well as any renewals of permits or licenses previously issued.
The undersigned hereby acknowledges and agrees that (A) this Hazardous
Materials Disclosure Certificate is being delivered in connection with, and
as required by, Landlord in connection with the evaluation and finalization
of a Lease Agreement and will be attached thereto as an exhibit; (B) that
this Hazardous Materials Disclosure Certificate is being delivered in
accordance with, and as required by, the provisions of Section 29 of the
Lease Agreement; and (c) that Tenant shall have and retain full and complete
responsibility and liability with respect to any of the Hazardous Materials
disclosed in the HazMat Certificate notwithstanding Landlord's/Tenant's
receipt and/or approval of such certificate. Tenant further agrees that none
of the following described acts or events shall be construed or otherwise
interpreted as either (a) excusing, diminishing or otherwise limiting Tenant
from the requirement to fully and faithfully perform its obligations under
the Lease with respect to Hazardous Materials, including, without limitation,
Tenant's indemnification of the Indemnitees and compliance with all
Environmental Laws, or (b) imposing upon Landlord, directly or indirectly,
any duty or liability with respect to any such Hazardous Materials,
including, without limitation, any duty on Landlord to investigate or
otherwise verify the accuracy of the representations and statements made
therein or to ensure that Tenant is in compliance with all Environmental
Laws; (i) the delivery of such certificate to Landlord and/or Landlord's
acceptance of such certificate, (ii) Landlord's review and approval of such
certificate, (iii) Landlord's failure to obtain such certificate from Tenant
at any time, or (iv) Landlord's actual or constructive knowledge of the types
and quantities of Hazardous Materials being used, stored, generated, disposed
of or transported on or about the Premises by Tenant or Tenant's
Representatives. Notwithstanding the foregoing or anything to the contrary
contained herein, the undersigned acknowledges and agrees that Landlord and
its partners, lenders and representatives may, and will, rely upon the
statements, representations, warranties, and certifications made herein and
the truthfulness thereof in entering into the Lease Agreement and the
continuance thereof throughout the term, and any renewals thereof, of the
Lease Agreement.
I (print name) , acting with full authority to bind the
(proposed) Tenant and on behalf of the (proposed) Tenant, certify, represent
and warrant that the information contained in this certificate is true and
correct.
(PROSPECTIVE) TENANT:
By:
----------------------------------------------------
Title:
-------------------------------------------------
Date:
--------------------------------------------------
INITIALS:
TENANT:
----------------
LANDLORD:
----------------
4
ADDENDUM 1
OPTION TO EXTEND THE LEASE
This Addendum 1 (:'Addendum") is incorporated as a part of that certain Lease
Agreement dated February 11, 1997 (the "Lease"), by and between INVISION
TECHNOLOGIES, INC., A DELAWARE CORPORATION ("TENANT"), AND WHLNF REAL ESTATE
LIMITED PARTNERSHIP, A DELAWARE LIMITED PARTNERSHIP ("LANDLORD"), of the
premises located at 7151 Gateway Boulevard, Newark, California (the
"Premises"). Any capitalized terms used herein and not otherwise defined
herein shall have the meaning ascribed to such terms as set forth in the
Lease.
1. GRANT OF EXTENSION OPTION. So long as Tenant has not at any time
been, or the time of Tenant's exercise of this Option, is currently not, in
default in the performance of any of its obligations under this Lease beyond
and applicable cure period set forth in the Lease, and contingent upon review
and approval of Tenant's then current financial condition by Landlord, Tenant
shall have the right, at its option, to extend the term of the Lease for five
(5) years (the "Extended Term").
2. TENANT'S OPTION NOTICE. If Landlord does not receive written notice
from Tenant of its exercise of this option on a date which is not more than
three hundred sixty (360) days nor less than two hundred forty (240) days
prior to the end of the initial term of the Lease (the "Option Notice"), all
rights under this option shall automatically lapse and terminate and shall be
of no further force and effect. Time is of the essence herein.
3. ESTABLISHING THE MONTHLY BASE RENT FOR THE EXTENDED TERM. The
monthly Base Rent for the Extended Term shall be the then current market rent
for the highest and best use for similar space within the area of the
Premises in Newark, California (the "Fair Rental Value") agreed upon solely
by and between Landlord and Tenant and their agents appointed for this
purpose. If Landlord and Tenant are unable to agree on the Fair Rental Value
for either the Extended Term. within ten (10) days of receipt by Landlord of
the Option Notice for the Extended Term, Landlord and Tenant each, at its
cost and by giving notice to the other party, shall appoint a competent and
disinterested commercial real estate broker (hereinafter "broker") with at
least five (5) years' full-time commercial real estate brokerage experience
in the geographical area of the Premises to set the Fair Rental Value for the
Extended Term. If either Landlord or Tenant does not appoint a broker within
ten (10) days after the other party has given notice of the name of its
broker, the single broker appointed shall be the sole broker and shall set
the Fair Rental Value for the Extended Term. If two (2) brokers are
appointed by Landlord and Tenant as stated in this paragraph, they shall meet
promptly and attempt to set the Fair Rental Value. If the two (2) brokers
are unable to agree within ten (10) days after the second broker has been
appointed, they shall attempt to select a third broker, meeting the
qualifications stated in this paragraph within ten (10) days after the last
day the two (2) brokers are given to set the Fair Rental Value. Landlord and
Tenant each shall bear one-half (A) of the cost of appointing the third
broker and of paying the third broker's fee. The third broker, however
selected, shall be a person who has not previously acted in any capacity for
either Landlord or Tenant. Within fifteen (15) days after the selection of
the third broker, the third broker shall select one of the two Fair Rental
Values submitted by the first two brokers as the Fair Rental Value for the
Extended Term. If either of the first two brokers fails to submit their
opinion of the Fair Rental Value, then the single Fair Rental Value submitted
shall automatically be the monthly Base Rent for the Extended Term. The
"Fair Rental Value" of the Premises shall be defined to mean the fair market
rental value of the Premises as of the commencement of the Extended Term,
taking into consideration all relevant factors, including length of term, the
uses permitted under the Lease, the quality, size, design and location of the
Premises, including the condition and value of existing tenant improvements,
and the monthly base rent paid by tenants for premises comparable to the
Premises, and located in Newark, California. In no event shall the monthly
Base Rent for any period of the Extended Term be less than the highest
monthly Base Rent charged during the initial term of this Lease.
4. ADDITIONAL LEASE PROVISIONS FOR EXTENDED TERM. Upon determination of
the monthly Base Rent for the Extended Term, in accordance with the terms
outlined above, the parties shall immediately execute either the standard
lease agreement then in use by Landlord or an amendment to this Lease, at
Landlord's sole option. Such new lease agreement or amendment, as the case
may be, shall set forth among other things, the minimum monthly Base Rent for
the Extended Term and the actual commencement date and expiration date of the
Extended Term. Tenant shall have no other right to extend the term of the
Lease under this Addendum unless Landlord and Tenant otherwise agree in
writing. If Tenant duly exercises this option, in accordance with the terms
contained herein: (1) Tenant shall accept the Premises in its then "As-Is"
condition and, accordingly, Landlord shall not be required to perform any
additional improvements to the Premises; and (2) Tenant hereby agrees that it
will solely be responsible for any and all brokerage commissions and finder's
fees payable to any broker in connection with the option described herein,
and Tenant hereby further agrees that Landlord shall in no event or
circumstance be responsible for the payment of any such commissions and fees.
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5. LIMITATIONS ON, AND CONDITIONS TO, EXTENSIONS OPTIONS. This option
is personal to Tenant and may not be assigned, voluntarily or involuntarily,
separate from or as part of the Lease. At Landlord's option, all rights of
Tenant under this option shall terminate and be of no force and effect if any
of the following individual events occur or any combination thereof occur:
(I) Tenant has been in default at any time during the initial term of the
Lease, or is currently in default of any provision of the Lease; and/or (2)
Tenant has assigned its rights and obligations under all or part of the Lease
or Tenant has subleased all or part of the Premises, except for a Permitted
Transferee; and/or (3) Tenant's financial condition is unacceptable to
Landlord at the time the Option Notice is delivered to Landlord; and/or (4)
Tenant has failed to exercise this option in a timely manner in accordance
with the provisions of this Addendum; and/or ($) Tenant no longer has
possession of all or any part of the Premises under the Lease, except in the
case of a Permitted Transferee, or if Lease has been terminated earlier,
pursuant to the terms of the Lease.
INITIALS:
TENANT:
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LANDLORD:
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