FIRST AMENDMENT TO LEASE
THIS AMENDMENT, dated this 6th day of March, 1998, between SIERRA
TRINITY INDUSTRIAL PARK, a property of RREEF PERFORMANCE PARTNERSHIP-I, L.P.,
an Illinois limited partnership ("Landlord") and BIEX, INC., a Delaware
corporation ("Tenant"), for the Premises located in the City of Dublin,
County of Alameda, State of California, commonly known as 0000 Xxxxxx Xxxx,
Xxxxx X.
1. RECITALS.
Landlord and Tenant, being parties to that certain Lease dated November 13,
1995, as amended by letter dated November 28, 1995 and attached hereto as
Exhibit "A", hereby express their mutual desire and intent to extend the
terms of the Lease and amend by this writing those terms, covenants and
conditions contained in MULTI-TENANT INDUSTRIAL GROSS LEASE REFERENCE PAGE
"LANDLORD'S ADDRESS:", MULTI-TENANT INDUSTRIAL GROSS LEASE REFERENCE PAGE
"PREMISES:", MULTI-TENANT INDUSTRIAL GROSS LEASE REFERENCE PAGE "RENTABLE
AREA:", MULTI-TENANT INDUSTRIAL GROSS LEASE REFERENCE PAGE "BASE YEAR (DIRECT
EXPENSES):", MULTI-TENANT INDUSTRIAL GROSS LEASE REFERENCE PAGE "BASE YEAR
(TAXES):", MULTI-TENANT INDUSTRIAL GROSS LEASE REFERENCE PAGE "TENANT'S
PROPORTIONATE SHARE:", Article 2, "TERM.", Article 3. "RENT.", Article 5.
"SECURITY DEPOSIT.", and add Article 42. "RENEWAL OPTION.", Article 43.
"LANDLORD'S AND TENANT'S IMPROVEMENTS.", and Article 44. "LANDLORD'S
CONDITIONAL AGREEMENT." as hereinafter provided.
2. AMENDMENTS.
MULTI-TENANT INDUSTRIAL GROSS LEASE REFERENCE PAGE "LANDLORD'S ADDRESS:"
shall hereafter additionally provide as follows:
RREEF Management Company
0000 Xxxxxx Xxxxx, Xxxxx X
Xxxxxx, Xxxxxxxxxx 00000
MULTI-TENANT INDUSTRIAL GROSS LEASE REFERENCE PAGE "PREMISES:" shall
hereafter additionally provide as follows:
Effective April 1, 1998, Tenant shall expand its Premises to include 0000
Xxxxxx Xxxx, Xxxxx X, Xxxxxx, Xxxxxxxxxx 00000 approximately 6,059 square
feet, hereafter known as "Expansion Premises" as shown on Exhibit "A"
attached hereto.
MULTI-TENANT INDUSTRIAL GROSS LEASE REFERENCE PAGE "RENTABLE AREA:" shall
hereafter additionally provide as follows:
Effective April 1, 1998, Tenant's square footage shall increase by
approximately 6,059 square feet from approximately 4,956 square feet to
approximately 11,015 square feet.
MULTI-TENANT INDUSTRIAL GROSS LEASE REFERENCE PAGE "BASE YEAR (DIRECT
EXPENSES):" shall hereafter additionally provide as follows:
Effective April 1, 1998 Tenant's Base Year (Direct Expenses) shall be
actual expenses incurred in calendar year 1998.
MULTI-TENANT INDUSTRIAL GROSS LEASE REFERENCE PAGE "BASE YEAR (TAXES):" shall
hereafter additionally provide as follows:
Effective April 1, 1998 Tenant's Base Year (Taxes) shall be actual expenses
incurred in tax year 1997/98.
1.
MULTI-TENANT INDUSTRIAL GROSS LEASE REFERENCE PAGE "TENANT'S PROPORTIONATE
SHARE:" shall hereafter additionally provide as follows:
Effective April 1, 1998, Tenant's Proportionate Share shall increase by
2.71% from 2.22% to 4.93% of Sierra Trinity Industrial Park.
ARTICLE 2. "TERM." shall hereafter additionally provide as follows:
The term of the Expansion Premises shall be for five (5) years commencing
on April 1, 1998 and ending on March 31, 2003.
The term of the Lease shall be extended for two (2) years and four (4)
months commencing on December 1, 2000 and ending on March 31, 2003.
ARTICLE 3. "RENT." shall hereafter additionally provide as follows:
Effective April 1, 1998 through March 31, 2003 the Minimum Monthly Rent for
the Expansion Premises shall be as follows:
April 1, 1998 - March 31, 1999: $8,179.65 per month or $98,155.80 per year;
April 1, 1999 - March 31, 2000: $8,603.78 per month or $103,245.36 per year;
April 1, 2000 - March 31, 2001: $9,027.91 per month or $108,334.92 per year;
April 1, 2001 - March 31, 2002: $9,452.04 per month or $113,424.48 per year;
April 1, 2002 - March 31, 2003: $9,936.76 per month or $119,241.12 per year.
Effective December 1, 2000 through March 31, 2003 the Minimum Monthly Rent
for the Leased Premises shall be as follows:
December 1, 2000 - March 31, 2001: $7,384.44 per month or $88,613.28 per year;
April 1, 2001 - March 31, 2002: $7,731.36 per month or $92,776.32 per year;
April 1, 2002 - March 31,2003: $8,127.84 per month or $97,534.08 per year.
ARTICLE 5. "SECURITY DEPOSIT." shall hereafter additionally provide as follows:
Landlord presently holds $4,800.00 as Security Deposit under the Lease
dated November 13, 1995, for the Premises located at 0000 Xxxxxx Xxxx,
Xxxxx X, Xxxxxx, Xxxxxxxxxx, leaving an amount due for the Expansion
Premises upon execution of this Amendment of $10,000.00 for a total
Security Deposit held under this Lease of $14,800.00.
ARTICLE 42. "RENEWAL OPTION." shall hereafter be added and provide as follows:
Tenant shall, provided the Lease is in full force and effect and Tenant is
not in default under any of the other terms and conditions of the Lease at
the time of notification or commencement, have one (1) option to renew this
Lease for a term of five (5) years, for the portion of the Premises being
leased by Tenant as of the date the renewal term is to commence, on the same
terms and conditions set forth in the Lease, except as modified by the terms,
covenants and conditions as set forth below:
(a) If Tenant elects to exercise said option, then Tenant shall provide
Landlord with written notice no earlier than the date which is one
hundred eighty (180) days prior to the expiration of the then current
term of the Lease but no later than the date which is one hundred
twenty (120) days prior to the expiration of the then current term of
this Lease. If Tenant fails to provide such notice, Tenant shall have
no further or additional right to extend or renew the term of the
Lease.
(b) The Annual Rent and Monthly Installment in effect at the expiration of
the then current term of the Lease shall be increased to reflect the
current fair market rental for comparable space in the Building and in
other similar buildings in the same rental market as of the date the
renewal term is to commence, taking into account the specific
provisions of the Lease which will remain constant. Landlord shall
2.
advise Tenant of the new Annual Rent and Monthly Installment for the
Premises no later than thirty (30) days after receipt of Tenant's
written request therefor. Said request shall be made no earlier than
thirty (30) days prior to the first date on which Tenant may exercise
its option under this Paragraph. Said notification of the new Annual
Rent may include a provision for its escalation to provide for a
change in fair market rental between the time of notification and the
commencement of the renewal term. In no event shall the Annual Rent
and Monthly Installment for any option period be less than the Annual
Rent and Monthly Installment in the preceding period.
(c) This option is not transferable; the parties hereto acknowledge and
agree that they intend that the aforesaid option to renew this Lease
shall be "personal" to Tenant as set forth above and that in no event
will any assignee or sublessee have any rights to exercise the
aforesaid option to renew.
ARTICLE 43. "LANDLORD'S AND TENANT'S IMPROVEMENTS." shall hereafter be added and
provide as follows:
Landlord hereby agrees to reimburse Tenant up to a maximum of $5.00 per
square foot (Fifty Thousand Five Hundred Seventy Five and 00/100 Dollars
($55,075.00) upon receipt of paid invoices and lien releases to be applied
toward all cost related to the general construction of Tenant's improvements
to the Leased Premises, as per the plans and specifications to be attached
hereto, including the following costs by way of illustration, but not
limitation: interior design, architectural, and engineering fees and
reimbursable expenses, general contractor's fees, permits and construction
costs as itemized in contractor's proposal and bid. In no event will Landlord
contribute to the cost of decorative items, i.e. wallpaper, decorative
lighting, desks, furniture, etc., or any business equipment, machinery or any
other business fixture. Any additional improvements or changes to the plans
that increase the total project cost above budget, shall be done at Tenant's
sole cost and expense, further the Commencement Date of this Amendment shall
not be altered, nor delayed, nor Rent be abated as a result of such
additional improvement work or changes.
Tenant shall be responsible for the performance and construction of its own
improvement work. Tenant accepts full responsibility that all work be
performed in a workmanlike manner by a licensed contractor in accordance with
Article 6 of this Lease and that no lien will be placed against Landlord
resulting from such work. If Tenant Improvements performed by Tenant trigger
governmental codes i.e. ADA or Title 24, etc., the cost of the compliance
with the respective code shall be paid out of the Improvement Allowance.
If Tenant has not substantially completed construction of the Improvements by
June 30, 1998, Tenant shall forfeit any uncommitted balance of the Fifty
Thousand Five Hundred Seventy Five and 00/100 ($55,075.00) Landlord
contributed to Tenant's cost. In that event, all other terms and conditions
of the Lease shall prevail.
ARTICLE 44. "LANDLORD'S CONDITIONAL AGREEMENT." shall hereafter be added and
provide as follows:
Landlord's acceptance of this First Amendment to Lease is contingent upon
successful execution of the Termination of Lease dated March 5, 1998 by and
between SIERRA TRINITY INDUSTRIAL PARK, a property of RREEF Performance
Partnership-I, L.P., an Illinois limited partnership and Pacific
Cyber/Metrix, Inc., a California corporation for the Premises located in
the city of Dublin, County of Alameda, State of California, commonly known
as 0000 Xxxxxx Xxxx, Xxxxx X, to be effective March 31, 1998.
3. INCORPORATION.
Except as modified herein, all other terms and conditions of the Lease between
the parties above described, as attached hereto, shall continue in full force
and effect.
3.
4. CORPORATE AUTHORITY.
If Tenant is a corporation, Tenant represents and warrants that this
Amendment and the undersigned's execution of this Amendment has been duly
authorized and approved by the corporation's Board of Directors. The
undersigned officers and representatives of the corporation executing this
Amendment on behalf of the corporation represent and warrant that they are
officers of the corporation with authority to execute this Amendment on
behalf of the corporation.
5. LIMITATION OF LANDLORD'S LIABILITY.
Redress for any claims against Landlord under this Amendment shall only be
made against Landlord to the extent of Landlord's interest in the property to
which the Leased Premises are a part. The obligations of Landlord under this
Amendment shall not be personally binding on, nor shall any resort be had to
the private properties of, any of its trustees or board of directors and
officers, as the case may be, the general partners thereof or any
beneficiaries, stockholders, employees or agents of Landlord, or the
investment manager.
The parties hereto have executed this Amendment on the dates specified
immediately below their respective signatures.
LANDLORD: TENANT:
SIERRA TRINITY INDUSTRIAL PARK, BIEX, INC.,
a property of RREEF Performance Partnership-I, a Delaware corporation
L.P., an Illinois limited partnership
By: RREEF MANAGEMENT COMPANY,
a California corporation
By: By:
----------------------------- -----------------------------
Xxxxx X. Xxxxxxx
Title:District Manager Title:
Dated: Dated:
-------------------------- --------------------------
4.
EXHIBIT "A"
Attached to and made a part of that certain First Amendment to Lease dated
March 6, 1998 by and between Sierra Trinity Industrial Park, a property of
RREEF Performance Partnership-I, L.P., an Illinois limited partnership and
Biex, Inc., a Delaware corporation.
PREMISES
Exhibit A is intended only to show the general layout of the Premises as of
the beginning of the Term of this Lease. It does not in any way supersede
any of Landlord's rights set forth in Section 17.2 with respect to
arrangements and/or locations of public parts of the Building and changes in
such arrangements and/or locations. It is not to scale; any measurements or
distances shown should be taken as approximate.
[GRAPHIC OMITTED]
Exhibit "A"
1
EXHIBIT "B"
Attached to and made a part of that certain First Amendment to Lease dated
March 6, 1998 by and between Sierra Trinity Industrial Park, a property of
RREEF Performance Partnership-I, L.P., an Illinois limited partnership and
Biex, Inc., a Delaware corporation.
ORIGINAL LEASE DOCUMENTS
(attached hereto)
Exhibit "B"
1
RREEF (Graphic)
The RREEF Funds
November 28, 1995
Xx. Xxxx Xxxx
BIEX, INC.
0000 Xxxxxx Xxxx, Xxxxx X
Xxxxxx, XX 00000
Re: Amendment to Lease for Biex, Inc., a Delaware corporation dated
November 13, 1995, for the Leased Premises at 0000 Xxxxxx Xxxxx, Xxxxx X,
Xxxxxx, Xxxxxxxxxx
Dear Xx. Xxxx:
This letter shall serve to amend the Multi-Tenant Industrial Gross Lease
Reference Page "PREMISES:" of the above referenced Lease as follows:
Sierra Court shall be deleted and replaced with Sierra Lane. The Premises
shall hereafter be known as 0000 Xxxxxx Xxxx, Xxxxx X, Xxxxxx, Xxxxxxxxxx,
00000.
All other terms and conditions of the lease will remain in full force and
effect.
Please indicate acceptance of the foregoing by signing each copy in the space
provided and return three (3) copies back to this office as time is of the
essence. Once they are received, one fully executed copy will be sent back
to you for your files.
Sincerely,
RREEF MANAGEMENT COMPANY
/s/ Xxxxxx Xxxx
Xxxxxx X. Xxxx
Vice President
Property Management
OWNER: AGREED AND ACCEPTED:
SIERRA TRINITY INDUSTRIAL PARK, BIEX, INC.,
a property of RREEF Performance Partnership-I, a Delaware corporation
L.P., an Illinois limited partnership
By: RREEF MANAGEMENT COMPANY,
a California corporation
By: /s/ Xxxxxx Xxxx By: /s/ H. Xxxx Xxxx
----------------------------- -----------------------------
Xxxxxx X. Xxxx
Title: Vice President, Property Management Title: VP R & D and Operations
--------------------------
Dated: 10/4/95 Dated: Dec. 6, 1995
-------------------------- --------------------------
TENANT'S ACCEPTANCE STATEMENT
Biex, Inc., a Delaware corporation, as Tenant, hereby acknowledges that
Sierra Trinity Industrial Park, a property of RREEF Performance
Partnership-I, L.P., an Illinois limited partnership, as Landlord has
provided the premises located in the city of Dublin, County of Alameda, State
of California, commonly known as 0000 Xxxxxx Xxxxx, Xxxxx X (the "Premises").
Landlord and Tenant mutually agree that Tenant Improvements specified on
Exhibit B of the lease Agreement dated November 13, 1995, between Landlord
and Tenant will be completed while Tenant is in possession of the Premises.
Any delay of completion of Tenant Improvements shall not alter the Lease
Commencement of November 16, 1995, or Commencement of rent on December 15,
1995.
The improvements on the Premises and the common areas and parking area in
connection therewith have been completed, or will be completed as specified
above, in accordance with the terms and conditions of the Lease and all have
been accepted by the undersigned.
Lease Commencement Date: November 16, 1995
Rent and Additional Rent Commencement: December 15, 1995
Lease Termination Date: November 30, 2000
COMMENTS:
Check hot water
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LANDLORD: TENANT:
SIERRA TRINITY INDUSTRIAL PARK, BIEX, INC.
A property of RREEF Performance a Delaware corporation
Partnership-I, L.P., an Illinois limited
Partnership
By: RREEF Management Company,
a California corporation
By: By: /s/ H. Xxxx Xxxx
----------------------------- -----------------------------
Title: Leasing Rep Title: VP R & D/Operations
-------------------------- --------------------------
Date: Nov. 16, 1995 Date: Nov. 16, 1995
--------------------------- ---------------------------
MULTI-TENANT INDUSTRIAL
GROSS LEASE REFERENCE PAGE
PROPERTY: Sierra Trinity Industrial Park
LANDLORD: SIERRA TRINITY INDUSTRIAL PARK, a property of RREEF
Performance Partnership-I, L.P., an Illinois limited
partnership
LANDLORD'S ADDRESS: 000-X Xxxxxxx Xxxx Xxxxx, #000, Xxxxxxxxx, Xxxxxxxxxx 00000
TENANT: Biex, Inc., a Delaware corporation
TENANT'S ADDRESS: 0000 Xxxxxx Xxxxx, Xxxxx X, Xxxxxx, Xxxxxxxxxx 00000
LEASE REFERENCE DATE: November 13, 1995
PREMISES: 0000 Xxxxxx Xxxxx, Xxxxx X, Xxxxxx, Xxxxxxxxxx, 00000 (see
Exhibit "A" for outline of Premises, attached hereto and
incorporated herein by reference.)
USE: Medical research and development
PREMISES RENTABLE AREA: approximately 4,956 square feet
COMMENCEMENT DATE: December 15, 1995
TERMINATION DATE: November 30, 2000
TERM OF LEASE: Five (5) years beginning on the Commencement Date and
ending on the Termination Date (unless sooner terminated
pursuant to the Lease.)
INITIAL ANNUAL RENT (Article 3): $53,520.00 (See also Article 40. "SCHEDULE OF RENTS.")
INITIAL MONTHLY INSTALLMENT OF
ANNUAL RENT (Article 3): $4,460.00 (See also Article 40. "SCHEDULE OF RENTS.")
BASE YEAR (DIRECT EXPENSES): 1995 = To be determined
BASE YEAR (TAXES): 1994/95 = $191,311.16
TENANT'S PROPORTIONATE SHARE: 2.22% of Sierra Trinity Industrial Park
SECURITY DEPOSIT: $4,800.00
ASSIGNMENT/SUBLETTING FEE: $1,000.00
REAL ESTATE BROKER DUE COMMISSION: Xxx & Associates
DECLARATION OF RESTRICTIONS: Date of Recordation FEBRUARY 29, 1968 Reel 2134 Image 548
Instrument Number BA21667
The Reference Page information is incorporated into and made a part of this
Lease. In the event of any conflict between any Reference Page information and
this Lease, this Lease shall control. This Lease includes Exhibits "A" through
"D", all of which are made a part hereof.
LANDLORD: TENANT:
SIERRA TRINITY INDUSTRIAL PARK, Biex, Inc.,
a property of RREEF Performance a Delaware corporation
Partnership-I, L.P.,
an Illinois limited partnership
By: RREEF MANAGEMENT COMPANY,
a California corporation
By: /s/ Xxxxxx Xxxx By: /s/ H. Xxxx Xxxx
----------------------------- -----------------------------
Xxxxxx X. Xxxx
Title: Vice President Title: VP Operations and R & D
Property Management -----------------------------
Dated: Dated:
----------------------------- -----------------------------
ii
LEASE
By this Lease Landlord leases to Tenant and Tenant leases from Landlord the
Premises in the Building as set forth and described on the Reference Page. The
Reference Page, including all terms defined thereon, is incorporated as part of
this Lease.
1. USE AND RESTRICTIONS ON USE.
1.1 The Premises are to be used solely for the purposes stated on the
Reference Page. 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
other tenants or occupants of the Building or injure, annoy, or disturb them or
allow the Premises to be used for any improper, immoral, unlawful, or
objectionable purpose. Tenant shall not do, permit or suffer in, on, or about
the Premises the sale of any alcoholic liquor without the written consent of
Landlord first obtained, or the commission of any waste. Tenant shall comply
with all governmental laws, ordinances and regulations applicable to the use of
the Premises and its occupancy and shall promptly comply with all governmental
orders and directions for the correction, prevention and abatement of any
violations in or upon, or in connection with, the Premises, all at Tenant's sole
expense. Tenant shall not do or permit anything to be done on or about the
Premises or bring or keep anything into the Premises which will in any way
increase the rate of, invalidate or prevent the procuring of any insurance
protecting against loss or damage to the Building or any of its contents by fire
or other casually or against liability for damage to property or injury to
persons in or about the Building or any part thereof.
2. TERM.
2.1 The Term of this Lease shall begin on the date ("Commencement Date")
which shall be the later of the Scheduled Commencement Date as shown on the
Reference Page and the date that Landlord shall tender possession of the
Premises to Tenant. Landlord shall tender possession of the Premises with all
the work, if any, to be performed by Landlord pursuant to Exhibit B to this
Lease substantially completed. Tenant shall deliver a punch list of items not
completed within 30 days after Landlord tenders possession of the Premises and
Landlord agrees to proceed with due diligence to perform its obligations
regarding such items. Landlord and Tenant shall execute a memorandum setting
forth the actual Commencement Date and Termination Date.
2.2 Tenant agrees that in the event of the inability of Landlord to
deliver possession of the Premises on the Scheduled Commencement Date, Landlord
shall not be liable for any damage resulting from such inability, but Tenant
shall not be liable for any rent until the time when Landlord can, after notice
to Tenant, deliver possession of the Premises to Tenant. No such failure to
give possession on the Scheduled Commencement Date shall affect the other
obligations of Tenant under this Lease, except that if Landlord is unable to
deliver possession of the Premises within one hundred twenty (120) days of the
Scheduled Commencement Date (other than as a result strikes, shortages of
materials or similar matters beyond the reasonable control of Landlord and
Tenant is notified by Landlord in writing as to such delay), Tenant shall have
the option to terminate
1
this Lease unless said delay is as a result of: (a) Tenant's failure to agree
to plans and specifications; (b) Tenant's request for materials, finishes or
installations other than the Landlord's stand except those, if any, that
Landlord shall have expressly agreed to furnish without extension of time agreed
by Landlord; (c) Tenant's change in any plans or specifications; or
(d) performance or completion by a party employed by Tenant. If any delay is
the result of any of the foregoing, the Commencement Date and the payment of
rent under this Lease shall be accelerated by the number of days of such delay.
2.3 In the event Landlord shall permit Tenant to occupy the Premises prior
to the Commencement Date, such occupancy shall be subject to all the provisions
of this Lease. Said early possession shall not advance the Termination Date.
3. RENT. (See also Article 40. "SCHEDULE OF RENTS.")
3.1 Tenant agrees to pay to Landlord the Annual Rent in effect from time
to time by paying the Monthly Installment of Rent then in effect on or before
the first day of each full calendar month during the Term, except that the first
month's rent shall be paid upon the execution of this Lease. The Monthly
Installment of Rent in effect at any time shall be one-twelfth of the Annual
Rent in effect at such time. Rent for any period during the Term which is less
than a full month shall be a prorated portion of the Monthly Installment of Rent
based upon a thirty (30) day month. Said rent shall be paid to Landlord,
without deduction or offset and without notice or demand, at the Landlord's
address, as set forth on the Reference Page, or to such other person or at such
other place as Landlord may from time to time designate in writing.
3.2 Tenant recognizes that late payment of any rent or other sum due under
this Lease will result in administrative expense to Landlord, the extent of
which additional expense is extremely difficult and economically impractical to
ascertain. Tenant therefore agrees that if rent or any other sum is not paid
when due and payable pursuant to this Lease, a late charge shall be imposed in
an amount equal to the greater of: (a) Fifty Dollars ($50.00), or (b) a sum
equal to five percent (5%) per month of the unpaid rent or other payment. The
amount of the late charge to be paid by Tenant shall be reassessed and added to
Tenant's obligation for each successive monthly period until paid. The
provisions of this Section 3.2 in no way relieve Tenant of the obligation to pay
rent or other payments on or before the date on which they are due, nor do the
terms of this Section 3.2 in any way affect Landlord's remedies pursuant to
Article 19 in the event said rent or other payment is unpaid after date due.
4. RENT ADJUSTMENTS.
4.1 For the purpose of this Article 4, the following terms are defined as
follows:
4.1.1 Lease Year: Each calendar year falling partly or wholly
within the Term.
4.1.2 Direct Expense: All direct costs of operation, maintenance,
repair and management of the Building (including the amount of any credits which
Landlord may grant to particular tenants of the Building in lieu of providing
any standard services or paying any standard costs described in this
Section 4.1.2 for similar tenants), as determined in accordance with generally
accepted principles, including the following costs by way of illustration, but
not limitation: water and sewer charges; insurance charges of or relating to
all insurance policies and endorsements deemed by Landlord to be reasonably
necessary or desirable and relating in any manner to the protection,
preservation, or operation of the Building or any part thereof; utility costs,
including, but not limited to, the cost of heat, light, power, steam, gas and
waste disposal; the cost of janitorial services; the cost of security and alarm
services (including any central station signalling system); window cleaning
costs, labor costs; costs and expenses of managing the Building including
management fees; air conditioning maintenance costs; elevator maintenance fees
and supplies; material costs; equipment costs of equipment other than capital
items, current rental and leasing costs of items which would be amortizable
capital items if purchased; tool costs; licenses; permits and inspection fees;
wages and salaries; employee benefits and payroll taxes; accounting and legal
fees; any sales, use or service taxes incurred in connection therewith. Direct
Expenses shall not include deprecation or amortization of the Building or
equipment in the Building except as provided herein, loan principal payments,
costs of alterations of tenants' premises, leasing commissions, interest
expenses on long-term borrowings, advertising costs or management salaries for
executive personnel other than personnel located at the Building. In addition,
Landlord shall be entitled to amortize and include as an additional rental
adjustment: (i) an allocable portion of the cost of capital improvement items
which are reasonably calculated to reduce operating expenses; (ii) fire
sprinklers and suppression systems and other life safety systems; and
(iii) other capital expenses which are required under any governmental laws,
regulations or ordinances which were not applicable to the Building at the time
it was constructed. All such costs shall be amortized over the reasonable life
of such improvements in accordance with such reasonable life and amortization
schedules as shall be determined by Landlord in accordance with generally
accepted accounting principles, with interest on the unamortized amount at one
percent (1%) in excess of the prime lending rate announced from time to time as
such by The Northern Trust Company of Chicago, Illinois.
2
4.1.3 Taxes: Real estate taxes and any other taxes, charges and
assessment which are levied with respect to the Building or the land appurtenant
to the Building, or with respect to any improvements, fixtures and equipment or
other property of Landlord, real or personal, located in the Building and used
in connection with the operation of the Building and said land, any payments to
any ground lessor in reimbursement of tax payments made by such lessor; and all
fees, expenses and costs incurred by Landlord in investigating, protesting,
contesting or in any way seeking to reduce or avoid increase in any assessments,
levies or the tax rate pertaining to any Taxes to be paid by Landlord in any
Lease Year. Taxes should not include any corporate franchise, or estate,
inheritance or net income tax, or tax imposed upon any transfer by Landlord of
its interest in this Lease or the Building.
4.2 If in any Lease Year, (i) Direct Expenses paid or incurred shall
exceed Direct Expenses paid or incurred in the Base Year (Direct Expenses)
and/or (ii) Taxes paid or incurred by Landlord in any Lease Year shall exceed
the amount of such Taxes which became due and payable in the Base Year (Taxes),
Tenant shall pay as additional rent for such Lease Year Tenant's Proportionate
Share of such excess.
4.3 The annual determination of Direct Expenses shall be made by Landlord
and, if certified by a nationally recognized firm of public accountants selected
by Landlord, shall be binding upon Landlord and Tenant. Tenant may review the
books and records supporting such determination in the office of Landlord, or
Landlord's agent, during normal business hours, upon giving Landlord five (5)
days advance written notice within sixty (60) days after receipt of such
determination, but in no event more often than once in any one period. In the
event that during all or any portion of any Lease Year, the Building is to fully
rented and occupied Landlord may make any appropriate adjustment in
occupancy-related Direct Expenses for such year for the purpose of avoiding
distortion of the amount of such Direct Expenses to be attributed to Tenant by
reason of variation in total occupancy of the Building, by employing sound
accounting and management principles to determine Direct Expenses that would
have been paid or incurred by Landlord had the Building been fully rented and
occupied, and the amounts so determined shall be deemed to have been Direct
Expenses for such Lease Year.
4.4 Prior to the actual determination thereof for a Lease Year, Landlord
may from time to time estimate Tenant's liability for Direct Expenses and/or
Taxes under Section 4.2, Article 6 and Article 29 for the Lease Year or portion
thereof. Landlord will give Tenant written notification of the amount of such
estimate and Tenant agrees that it will pay, by increase of its Monthly
Installments of Rent due in such Lease Year, additional rent in the amount of
such estimate. Any such increased rate of Monthly Installments of Rent pursuant
to this Section 4.4 shall remain in effect until further written notification to
Tenant pursuant hereto.
4.5 When the above mentioned actual determination of Tenant's liability
for Direct Expenses and/or Taxes is made for any Lease Year and when Tenant is
so notified in writing, then:
4.5.1 If the total additional rent Tenant actually paid pursuant
to Section 4.3 on account of Direct Expenses and/or Taxes for the Lease Year is
less than Tenant's liability for Direct Expenses and/or Taxes, then Tenant shall
pay such deficiency to Landlord as additional rent in one lump sum within thirty
(30) days of receipt of Landlord's xxxx therefor; and
4.5.2 If the total additional rent Tenant actually paid pursuant
to Section 4.3 on account of Direct Expenses and/or Taxes for the Lease Year is
more than Tenant's liability for Direct Expenses and/or Taxes, then Landlord
shall credit the difference against the then next due payments to be made by
Tenant under this Article 4. Tenant shall not be entitled to a credit by reason
of actual Direct Expenses and/or Taxes in any Lease year being less than Direct
Expenses and/or Taxes in the Base Year (Direct Expenses and/or Taxes).
4.6 If the Commencement Date is other than January 1 or if the Termination
Date is other than December 31, Tenant's liability for Direct Expenses and Taxes
for the Lease Year in which said Date occurs shall be prorated based upon a
three hundred sixty-five (365) day year.
5. SECURITY DEPOSIT.
Tenant shall deposit the Security Deposit with Landlord upon the execution of
this Lease. Said sum shall be held by Landlord as security for the faithful
performance by Tenant of all the terms, covenants and conditions of this Lease
to be kept and performed by Tenant and not as an advance rental deposit or as a
measure of Landlord's damage in case of Tenant's default. If Tenant defaults
with respect to any provision of this Lease, Landlord may use any part of the
Security Deposit for the payment of any rent or any other sum in default, or for
the payments of any amount which Landlord may spend or become obligated to spend
by reason of Tenant's default, or to compensate Landlord for any other loss or
damage which Landlord may suffer by
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reason of Tenant's default. If any portion is so used, Tenant shall within five
(5) days after written demand for, deposit with Landlord an amount sufficient to
restore the Security Deposit to its original amount and Tenant's failure to do
so shall be a material breach of this Lease. Except to such extent, if any, as
shall be required by law, Landlord shall not be required to keep the Security
Deposit separate from its general funds, and Tenant shall not be entitled to
interest on such deposit. If Tenant shall fully and faithfully perform every
provision of this Lease to be performed by it, the Security Deposit or any
balance thereof shall be returned to Tenant at such time after termination of
this Lease when Landlord shall have determined that all of Tenant's obligations
under this Lease have been fulfilled.
6. ALTERATIONS.
6.1 Except for those, if any, specifically provided for in Exhibit B to
this Lease, Tenant shall not make or suffer to be made any alterations,
additions, or improvements, including, but not limited to, the attachment of any
fixtures or equipment in, on, or to the Premises or any part thereof or the
making of any improvements as required by Article 7, without the prior written
consent of Landlord. When applying for such consent, Tenant shall, if requested
by Landlord, furnish complete plans and specifications for such alterations,
additions and improvements.
6.2 In the event Landlord consents to the making of any such alteration,
addition or improvement by Tenant, the same shall be made using Landlord's
contractor (unless Landlord agrees otherwise) at Tenant's sole cost and expense.
If Tenant shall employ any Contractor other than Landlord's Contractor and such
other Contractor or any Subcontractor of such other Contractor shall employ any
non-union labor or supplier, Tenant shall be responsible for any and all delays,
damages and extra costs suffered by Landlord as a result of any dispute with any
labor unions concerning the wage, hours, terms or conditions of the employment
of any such labor. In any event Landlord may charge Tenant a reasonable charge
to cover its overhead as it relates to such proposed work.
6.3 All alterations, additions or improvements proposed by Tenant shall be
constructed in accordance with all governmental laws, ordinances, rules and
regulations and Tenant shall, prior to construction, provide the additional
insurance required under Article 11 in such case, and also all such assurances
to Landlord, including but not limited to, waivers of lien, surety company
performance bonds and personal guaranties of individuals of substance as
Landlord shall require to assure payment of the costs thereof and to protect
Landlord and the Building and appurtenant land against any loss from any
mechanic's, materialmen's or other liens. Tenant shall pay in addition to any
sums due pursuant to Article 4, any increase in real estate or attributable to
any such alteration, addition or improvement for so long, during the Term, as
such increase is ascertainable; at Landlord's election said sums shall be paid
in the same way as sums due under Article 4.
6.4 All alterations, additions, and improvements in, on, or to the
Premises made or installed by Tenant, including carpeting, shall be and remain
the property of Tenant during the Term but, excepting furniture, furnishings,
movable partitions of less than full height from floor to ceiling and other
trade fixtures, shall become a party of the realty and belong to Landlord
without compensation to Tenant upon the expiration or sooner termination of the
Term, at which time shall pass to Landlord under this Lease as by a xxxx of
sale, unless Landlord elects otherwise. Upon such election by Landlord, Tenant
shall upon demand by Landlord, at Tenant's sole cost and expense, forthwith and
with all due diligence remove any such alterations, additions or improvements
which are designated by Landlord to be removed, and Tenant shall forthwith and
with all due diligence, at its sole cost and expense, repair and restore the
Premises to their original condition, reasonable wear and tear and damage by
fire or other casualty excepted.
7. REPAIR.
7.1 Landlord shall have no obligation to alter, remodel, improve, repair,
decorate or paint the Premises, except as specified in Exhibit B if attached to
this Lease and except that Landlord shall repair and maintain the structural
portions of the roof, walls and foundation of the Building. By taking
possession of the Premises, Tenant accepts them as being in good order,
condition and repair and in the condition in which Landlord is obligated to
deliver them. It is hereby understood and agreed that no representations
respecting the condition of the Premises or the Building have been made by
Landlord to Tenant, except as specifically set forth in this Lease. Landlord
shall not be liable for any failure to make any repairs or to perform any
maintenance unless such failure shall persist for an unreasonable time after
written notice of the need of such repairs or maintenance is given to Landlord
by Tenant.
7.2 Tenant hereby waives and releases tits right to make repairs at
Landlord's expense under Section 1941 and 1942 of the California Civil Code and
its right to terminate the Lease under Section 1932(1) of the California Civil
Code or under any similar law, statute or ordinance now or hereafter in effect.
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7.3 Tenant shall at its own costs and expense keep and maintain all parts
of the Premises and such portion of the Building and improvements as are within
the exclusive control of Tenant in good condition, promptly making all necessary
repairs and replacements, whether ordinary or extraordinary, with materials and
workmanship of the same character, kind and quality as the original (including,
but not limited to, repair and replacement of all fixtures installed by Tenant,
water heaters serving the Premises, windows, glass and plate glass, doors,
exterior stairs, skylights any special office entries, interior walls and finish
work, floors and floor coverings, heating and air conditioning systems serving
the Premises, electrical systems and fixtures, sprinkler systems, dock boards,
truck doors, dock bumpers, plumbing work and fixtures, and performance of
regular removal of trash and debris). Tenant as part of its obligations
hereunder shall keep the Premises in a clean and sanitary condition. Tenant
will, as far as possible keep all such parts of the Premises from deterioration
due to ordinary wear and from falling temporarily out of repair, and upon
termination of this Lease in any way Tenant will yield up the Premises to
Landlord in good condition and repair, loss by fire or other casualty excepted
(but not excepting any damage to glass). Tenant shall, at its own cost and
expense, repair any damage to the Premises or the Building resulting from and/or
caused in whole or in part by the negligence or misconduct of Tenant, its
agents, employees, invitees, or any other person entering upon the Premises
as a result of Tenant's business activities or caused by Tenant's default
hereunder.
7.4 Except as provided in Article 22, there shall be no abatement of
rent and no liability of Landlord by reason of any injury to or interference
with Tenant's business arising from the making of any repairs, alterations or
improvements in or to any portion of the Building or the Premises or to
fixtures, appurtenances and equipment in the Building. Except to the extent,
if any, prohibited by law, Tenant waives the right to make repairs at
Landlord's expense under any law, statute or ordinance now or hereafter in
effect.
7.5 Tenant shall, at its own cost and expense, enter into a regularly
scheduled preventive maintenance/service contract with a maintenance
contractor approved by Landlord for servicing all heating and air
conditioning systems and equipment serving the Premises (and a copy thereof
shall be furnished to Landlord). The service contract must include all
services suggested by the equipment manufacturer in the operation/maintenance
manual and must become effective within thirty (30) days of the date Tenant
takes possession of the Premises. Landlord may, upon notice to Tenant, enter
into such a maintenance/service contract on behalf of Tenant or perform the
work and in either case, charge Tenant the cost thereof along with a
reasonable amount for Landlord's overhead.
7.6 Landlord shall coordinate any repairs and other maintenance of any
railroad tracks serving the Building and, if Tenant uses such rail tracks,
Tenant shall reimburse Landlord or the railroad company from time to time
upon demand, as additional rent, for its share of the costs of such repair
and maintenance and for any other sums specified in any agreement to which
Landlord or Tenant is a party respecting such tracks, such costs to be borne
proportionately by all tenants in the Building using such rail tracks, based
upon the actual number of rail cars shipped and received by such tenant
during each calendar year during the Term.
8. LIENS.
Tenant shall keep the Premises, the Building and appurtenant land and
Tenant's leasehold interest in the Premises free from any liens arising out
of any services, work or materials performed, furnished, or contracted for by
Tenant, or obligations incurred by Tenant. In the event that Tenant shall
not, within ten (10) days following the imposition of any such lien, either
cause the same to be released of record or provide Landlord with insurance
against the same issued by a major title insurance company or such other
protection against the same as Landlord shall accept, Landlord shall have the
right to cause the same to be released by such means as it shall deem proper,
including payment of the claim giving rise to such lien. All such sums paid
by Landlord and all expenses incurred by it in connection therewith shall be
considered additional rent and shall be payable to it by Tenant on demand.
Landlord shall have the right at all times to post and keep posted on the
Premises any notices permitted or required by law, or that Landlord shall
deem proper, for the protection of Landlord, the Premises, the Building, and
any other party having an interest therein, from mechanics' and materialmen's
liens, and Tenant shall give to Landlord at least five business days' prior
notice of commencement of any construction on the Premises.
9. ASSIGNMENT AND SUBLETTING.
9.1 Tenant shall not have the right to assign or pledge this Lease or
to sublet the whole or any part of the Premises whether voluntarily or by
operation of law, or permit the use or occupancy of the Premises by anyone
other than Tenant, and shall not make, suffer or permit such assignment,
subleasing or occupancy, without the prior written consent of Landlord, and
said restrictions shall be binding upon any and all assignees of the Lease
and subtenants of the Premises. In the event Tenant desires to sublet, or
permit such occupancy of, the Premises, or any portion thereof, or assign
this Lease, Tenant shall give written notice thereof to Landlord at least
ninety (90) days but no more than one hundred eighty (180) days prior to the
proposed commencement date of such subletting or assignment, which notice
shall set forth the name of the proposed subtenant or assignee, the relevant
terms of any sublease or assignment and copies of financial reports and other
relevant financial reports and other relevant financial information of the
proposed subtenant or assignee.
9.2 Notwithstanding any assignment or subletting, permitted or
otherwise, Tenant shall at all times remain directly, primarily and fully
responsible and liable for the payment of the rent specified in this Lease
and for compliance with all of its other obligations under the terms,
provisions and covenants of this Lease. Upon the occurrence of an Event of
Default, if the Premises or any part of them are then assigned or sublet,
Landlord, in addition to any other remedies provided in this Lease or
provided by law, may, at its option, collect directly from such assignee or
subtenant all rents due and becoming due to Tenant under such assignment or
sublease and apply such rent against any sums due to Landlord from Tenant
under this Lease, and no such collection shall be construed to constitute a
novation or release of Tenant from the further performance of Tenant's
obligations under this Lease.
9.3 In addition to Landlord's right to approve of any subtenant or
assignee, Landlord shall have the option, in its sole discretion, in the
event of any proposed subletting or assignment, to terminate this Lease, or
in the case of a proposed subletting of less than the entire Premises, to
recapture the portion of the Premises to be sublet, as of the date the
subletting or assignment is to be effective. The option shall be exercised,
if at all, by Landlord giving Tenant written notice given by Landlord to
Tenant within sixty (60) days following Landlord's receipt of Tenant's
written notice as required above. If this Lease shall be terminated with
respect to the entire Premises pursuant to this Section, the Term of this
Lease shall end on the date stated in Tenant's notice as the effective date
of the sublease or assignment as if that date had been originally fixed in
this Lease for the expiration of the Term. If Landlord recaptures under this
Section only a portion of the Premises, the rent to be paid from time to time
during the unexpired Term shall xxxxx proportionately based on the proportion
by which the approximate square footage of the remaining portion of the
Premises shall be less than that of the Premises as of the date immediately
prior to such recapture. Tenant shall, at Tenant's own cost and expense,
discharge in full any outstanding commission obligation on the part of
Landlord with respect to this Lease, andy any commissions which may be due
and owing as a result of any proposed assignment or subletting, whether or
not the Premises are recaptured pursuant to this Section 9.3 and rented by
Landlord to the proposed tenant or any other tenant.
9.4 In the event that Tenant sells, sublets, assigns or transfers this
Lease, Tenant shall pay to Landlord as additional rent an amount equal to one
hundred percent (100%) of any Increased Rent (as defined below) when and as such
Increased Rent is received by Tenant. As used in this Section, "Increased Rent"
shall mean the excess of (i) all rent and other consideration which Tenant is
entitled to receive by reason of any sale, sublease, assignment or other
transfer of the Lease, over (ii) the rent otherwise payable by Tenant under this
Lease at such time. For purposes of the foregoing, any consideration received
by Tenant in form other than cash shall be valued at its fair market value as
determined by Landlord in good faith.
9.5 Notwithstanding any other provision hereof, Tenant shall have no right
to make (and Landlord shall have the absolute right to refuse to) any assignment
of this Lease or sublease of any portion of the Premises if at the time of
either Tenant's notice of the proposed assignment or sublease or the proposed
commencement date thereof, there shall exist any uncured default of Tenant or
matter which will become a default of Tenant with passage of time unless cured,
or if the proposed assignee or sublessee is an entity: (a) with which Landlord
is already in negotiation as evidenced by the issuance of a written proposal;
(b) is already an occupant of the Building unless Landlord is unable to provide
the amount of space required by such occupant; (c) is a governmental agency; (d)
is incompatible with the character of occupancy of the Building; or (e) would
subject the Premises to a use which would: (i) involve increased personnel or
wear upon the Building; (ii) violate any exclusive right granted to another
tenant of the Building; (iii) require any addition to or modification of the
Premises or the Building in order to comply with building code or other
governmental requirements; or, (iv) involve a violation of Section 1.2. Tenant
expressly agrees that Landlord shall have the absolute right to refuse consent
to any such assignment or sublease and that for the purposes of any statutory or
other requirement of reasonableness on the part of the Landlord such refusal
shall be reasonable.
9.6 Upon any request to assign or sublet, Tenant will pay to Landlord the
Assignment/Subletter Fee plus; on demand, a sum equal to all of Landlord's
costs, including attorney's fees, incurred in investigating and considering any
proposed or purported assignment or pledge of this Lease or sublease of any of
the Premises, regardless of whether Landlord shall consent to, refuse consent,
or determine that Landlord's consent is not required for, such assignment,
pledge or sublease. Any purported sale, assignment, mortgage, transfer of this
Lease or subletting which does not comply with the provisions of this Article 9
shall be void.
9.7 If Tenant is a corporation, partnership or trust, any transfer or
transfers of or change or changes within any twelve month period in the number
of the outstanding voting shares of the corporation, the general partnership
interests in the partnership or the identity of the persons or entities
controlling the activities of such partnership or trust resulting in the persons
or entities owning or controlling a majority of such shares, partnership
interests or activities of such partnership or trust at the beginning of such
period no longer having such ownership or control shall be regarded as
equivalent to an assignment of this
5
Lease to the persons or entities acquiring such ownership or control and shall
be subject to all the provisions of this Article 9 to the same extent and for
all intents and purposes as though such an assignment.
10. INDEMNIFICATION.
None of the Landlord entities shall be liable and Tenant hereby waives all
claims against them for any damage to any property or any injury to any person
in or about the Premises or the Building by or from any cause whatsoever
(including without limited the foregoing, rain or water leakage of any character
from the roof, windows, walls, basement, pipes, plumbing works or appliances,
the Building not being in good condition or repair, gas, fir, oil, electricity
or theft), except to the extent caused by or arising from the gross negligence
or willful misconduct of landlord or its agents, employees or contractors.
Tenant shall protect, indemnify and hold the Landlord Entities harmless from and
against any and all loss, claims, liability or costs (including court costs and
attorney's fees) incurred by reason of (a) any damage to any property (including
but not limited to property of any Landlord Entity) or any injury (including but
not limited to death) to any person occurring in, on or about the Premises or
the Building to the extent that such injury or damage shall be caused by or
arise from any actual or alleged act, neglect, fault, or omission by or of
Tenant, its agents, servants, employees, invitees, or visitors to meet any
standards imposed by any duty with respect to the injury or damage; (b) the
conduct or management of any work or thing whatsoever done by the Tenant in or
about the Premises or from transactions of the Tenant concerning the Premises;
(c) Tenant's failure to comply with any and all governmental laws, ordinances
and regulations applicable to the condition or use of the Premises or its
occupancy; or (d) any breach or default on the part of the Tenant in the
performance of any covenant or agreement on the part of the Tenant to be
performed pursuant to this Lease. The provision of this Article shall survive
the termination of this Lease with respect to any claims or liability accruing
prior to such termination.
11. INSURANCE.
11.1 Tenant shall keep in force throughout the Term: (a) a Commercial
General Liability insurance policy or policies to protect the Landlord Entities
against any liability to the public or to any invitee of Tenant or a Landlord
Entity incidental to the use of or resulting from any accident occurring in or
upon the Premises with a limit of not less than $1,000,000.00 per occurrence and
not less than $2,000,000.00 in the annual aggregate, or such larger amount as
Landlord may prudently require from time to time, covering bodily injury and
property damage liability and $1,000,000 products/completed operations
aggregate; (b) Business Auto Liability covering owned, non-owned and hired
vehicles with a limit of not less than $1,000,000 per accident; (c) insurance
protecting against liability under Worker's Compensation Laws with limits at
least as required by statute; (d) Employers Liability with limits of $500,000
each accident, $500,000 disease policy limit, $500,000 disease--each employee;
(e) All Risk or Special Form coverage protecting Tenant against loss of or
damage to Tenant's alterations, additions, improvements, carpeting, floor
coverings, paneling, decorations, fixtures, inventory and other business
personal property situated in or about the Premises to the full replacement
value of the property so insured; and (f) Business Interruption Insurance with
limit of liability representing loss of at least approximately six months of
income.
11.2 Each of the aforesaid policies shall (a) be provided at Tenant's
expense; (b) name the Landlord and the building management company, if any, as
additional insureds; (c) be used by an insurance company with a minimum Best's
ration of "A:VII" during the Term; and (d) provide that said insurance shall not
be cancelled unless thirty (30) days prior written notice (ten days for
non-payment of premium) shall have been given to Landlord; and said policy or
policies or certificates thereof shall be delivered to Landlord by Tenant upon
the Commencement Date and at least thirty (30) days prior to each renewal of
said insurance.
11.3 Whenever Tenant shall undertake any alterations, additions or
improvements in, to or about the Premises ("Work") the aforesaid insurance
protection must extend to and include injuries to persons and damage to property
arising in connection with such Work, without limitation including liability
under any applicable structural work act, and such other insurance as Landlord
shall require; and the policies of or certificates evidencing such insurance
must be delivered to Landlord prior to the commencement of any such Work.
12. WAIVER OF SUBROGATION.
So long as their respective insurers so permit, Tenant and Landlord hereby
mutually waive their respective rights of recovery against each other for any
loss insured by fire, extended coverage, All Risks or other insurance now or
hereafter existing for the benefit of the respective party but only to the
extent of the net insurance proceeds payable under such policies. Each party
shall obtain any special endorsements required by their insurer to evidence
compliance with the aforementioned waiver.
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13. SERVICES AND UTILITIES.
Tenant shall pay for all water, gas, heat, light, power, telephone, sewer,
sprinkler system charges and other utilities and services used on or from the
Premises, together with any taxes, penalties, and surcharges or the like
pertaining thereto and any maintenance charges for utilities. Tenant shall
furnish all electric light bulbs, tubes and ballasts, battery packs for
emergency lighting and fire extinguishers. If any such services are not
separately metered to Tenant, Tenant shall pay such proportion of all charges
jointly metered with other premises as determined by Landlord, in its sole
discretion, to be reasonable. Any such charges paid by Landlord and assessed
against Tenant shall be immediately payable to Landlord on demand and shall be
additional to rent hereunder. Landlord shall in no event be liable for any
interruption or failure of utility services on or to the Premises.
14. HOLDING OVER.
Tenant shall pay Landlord for each day Tenant retains possession of the Premises
or part of them after termination of this Lease by lapse of time or otherwise at
the rate ("Holdover Rate") which shall be 150% of the greater of: (a) the amount
of the Annual Rent for the last period prior to the date of such termination
plus all Rent Adjustments under Article 4; and, (b) the then market rental value
of the Premises as determined by Landlord assuming a new lease of the Premises
of the then usual duration and other terms, in either case prorated on a daily
basis, and also pay all damages sustained by Landlord by reason of such
retention. If Landlord gives notice to Tenant of Landlord's election to that
effect, such holding over shall constitute renewal of this Lease for a period
from month to month or one year, whichever shall be specified in such notice, in
either case at the Holdover Rate, but if the Landlord does not so elect, no such
renewal shall result notwithstanding acceptance by Landlord of any sums due
hereunder after such termination; and instead, a tenancy at sufferance at the
Holdover Rate shall be deemed to have been created. In any event, no provision
of this Article 14 shall be deemed to waive Landlord's right of reentry or any
other right under this Lease or at law.
15. SUBORDINATION.
Without the necessity of any additional document being executed by Tenant for
the purpose of effecting a subordination, this Lease shall be subject and
subordinate at all times to ground or underlying leases and to the lien of any
mortgages or deeds of trust now or hereafter placed on, against or affecting the
Building, Landlord's interest or estate in the Building, or any ground or
underlying lease; provide,d however, that if the lessor, mortgagee, trustee, or
holder of any such mortgage or deed of trust elects to have Tenant's interest in
this Lease be superior to any such instrument, then, by notice to Tenant, this
Lease shall be deemed superior, whether this Lease was executed before or after
said instrument. Notwithstanding the foregoing, Tenant covenants and agrees to
execute and delivery upon demand such further instruments evidencing such
subordination or superiority of this Lease as may be required by Landlord.
16. RULES AND REGULATIONS.
Tenant shall faithfully observe and comply with all the rules and regulations as
set forth in Exhibit C to this Lease and all reasonable modifications of an
additions to them from time to time put into effect by Landlord. Landlord shall
not be responsible to Tenant for the non-performance by any other tenant or
occupant of the Building of any such rules and regulations.
17. REENTRY BY LANDLORD.
17.1 Landlord reserves and hall at all times have the right to re-enter the
Premises to inspect the same, to show said Premises to prospective purchasers,
mortgagees, or tenants, and to alter, improve or repair the Premises and any
portion of the Building, without abatement of rent, and may for that purpose
erect, use and maintain scaffolding, pipes, conduits and other necessary
structures and open any wall, ceiling or floor in and through the Building and
Premises where reasonably required by the character of the work to be performed,
provided entrance to the Premises shall not be blocked thereby, and further
provided that the business of Tenant shall not be interfered with unreasonably.
NOTWITHSTANDING THE FOREGOING, LANDLORD SHALL BE (1) PERMITTED ONLY TO ENTER
UPON REASONABLE PRIOR NOTICE AND THE ONLY WHEN ACCOMPANIED BY A REPRESENTATIVE
OF TENANT, AND (2) PRECLUDED FROM SPECIFIC AREAS WHERE THERE IS RISK OF INJURY
OR CONTAMINATION OF LANDLORD OR CONTAMINATION OF TENANT'S WORK ENVIRONMENT.
17.2 Landlord shall have the right at any time to change the arrangement
and/or locations of entrances, or passageways, doors and doorways, and
corridors, windows, elevators, stairs, toilets or other public parts of the
Building and to change the name, number or designation by which the Building is
commonly known. In the event that Landlord damages any portion of any wall or
wall covering, ceiling, or floor or floor covering within the Premises, Landlord
shall repair or replace
7
the damaged portion to match the original as nearly as commercially reasonable
but shall not be required to repair or replace more than the portion actually
damaged.
17.3 Tenant hereby waives any claim for damages for any injury or
inconvenience to or interference with Tenant's business, any loss of occupancy
or quiet enjoyment of the Premises, and any other loss occasioned by any action
of Landlord authorized by this Article 17. Tenant agrees to reimburse Landlord,
on demand, as additional rent, for any expenses which Landlord may incur in thus
effecting compliance with Tenant's obligation under this Lease.
17.4 For each of the aforesaid purposes, Landlord shall at all times have
and retain a key with which to unlock all of the doors in the Premises,
excluding Tenant's vaults and safes or special security areas (designated in
advance), and Landlord shall have the right to use any and all means which
Landlord may deem property to open said doors in an emergency to obtain entry to
any portion of the Premises. As to any portion to which access cannot be had by
means of a key or keys in Landlord's possession, Landlord is authorized to gain
access by such means as Landlord shall elect and the cost of repairing any
damage occurring in doing so shall be borne by Tenant and paid to Landlord as
additional rent upon demand.
18. DEFAULT.
18.1 Except as otherwise provided in Article 20, the following events shall
be deemed to be Events of Default under this Lease:
18.1.1 Tenant shall fail to pay when due any sum of money becoming
due to be paid to Landlord under this Lease, whether such sum be any installment
of the rent reserved by this Lease, any other amount treated as additional rent
under this Lease, or any other payment or reimbursement to Landlord required by
this Lease, whether or not treated as additional rent under this Lease, and such
failure shall continue for a period of five days after written notice that such
payment was not made when due, but if any such notice shall be given, for the
twelve month period commencing with the date of such notice, the failure to pay
within five days after due any additional sum of money becoming due to be paid
to Landlord under this Lease during such period shall be an Event of Default,
without notice.
18.1.2 Tenant shall fail to comply with any term, provision or
covenant of this Lease which is not provided for in another Section of this
Article and shall not cure such failure within twenty (20) days (forthwith, if
the failure involves a hazardous condition) after written notice of such failure
to Tenant.
18.1.3 Tenant shall fail to vacate the Premises immediately upon
termination of this Lease, by lapse of time or otherwise, or upon termination of
Tenant's right to possession only.
18.1.4 Tenant shall become insolvent, admit in writing its
inability to pay its debts generally as they become due, file a petition in
bankruptcy or a petition to take advantage of any insolvency statute, make an
assignment for the benefit of creditors, make a transfer in fraud of creditors,
apply for or consent to the appointment of a receiver of itself or of the whole
or any substantial part of its property, or file a petition or answer seeking
reorganization or arrangement under the federal bankruptcy laws, as now in
effect or hereafter amended, or any other applicable law or statute of the
United States or any state thereof.
18.1.5 A court of competent jurisdiction shall enter an order,
judgment or decree adjudicating Tenant bankrupt, or appointing a receiver of
Tenant, or of the whole or any substantial part of its property, without the
consent of Tenant, or approving a petition filed against Tenant seeking
reorganization or arrangement of Tenant under the bankruptcy laws of the United
States, as now in effect or hereafter amended, or any state thereof, and such
order, judgment or decree shall not be vacated or set aside or stayed within
thirty (30) days from the date of entry thereof.
19. REMEDIES.
19.1 Upon the occurrence of any of such events of default described in
Article 18.1 or elsewhere in this Lease, Landlord shall have the following
rights and remedies in addition to all other rights or remedies available to
Landlord in law or equity:
19.1.1 The rights and remedies provided by California Civil Code
Section 1951.2, including, but not limited to, the right to terminate Tenant's
right to possession of the Premises and to recover the worth at the time of
award of the amount by which the unpaid rent for the balance of the Term after
the time of award exceeds the amount of rental loss for
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the same period that the Tenant proves could be reasonably avoided, as
computed pursuant to subsection (b) of said Section 1951.2;
19.1.2 The rights and remedies provided by California Civil Code
Section 1951.4, that allows Landlord to continue this Lease in effect and to
enforce all of its rights and remedies under this Lease, including the right to
recover rent as it becomes due, for so long as Landlord does not terminate
Tenant's right to possession; provided, however, if Landlord elects to exercise
its remedies described in this subsection and Landlord does not terminate this
Lease, and if Tenant requests Landlord's consent to an assignment of this Lease
or a sublease of the Premises at such time as Tenant is in default, Landlord
shall not unreasonably withhold its consent to such assignment or sublease.
Acts of maintenance or preservation, efforts to relet the Premises or the
appointment of a receiver upon Landlord's initiative to protect its interest
under this Lease shall not constitute a termination of Tenant's right to
possession;
19.1.3 The right to terminate this Lease by giving notice to Tenant
in accordance with applicable law;
19.1.4 The right and power, as attorney-in-fact for Tenant, to
enter the Premises and remove therefrom all persons and property, to store such
property in a public warehouse or elsewhere at the cost of and for the account
of Tenant, and to sell such property and apply the proceeds therefrom pursuant
to applicable California law. Landlord, as attorney-in-fact for Tenant, may
from time to time sublet the Premises or any part thereof for such term or terms
(which may extend beyond the Term) and at such rent and such other terms as
Landlord in its sole discretion may deem advisable, with the right to make
alterations and repairs to the Premises. Upon each such subletting, (i) Tenant
shall be immediately liable for payment to Landlord of, in addition indebtedness
other than rent due hereunder, the cost of such subletting and such alterations
and repairs incurred by Landlord and the amount, if any, by which the rent for
the period of such subletting (to the extent such period does not exceed the
Term) exceeds the amount to be paid as rent for the Premises for such period, or
(ii) at the option of Landlord, rents received from such subletting shall be
applied, first, to payment of any indebtedness other than rent due hereunder
from Tenant to Landlord; second, to the payment of any costs of such subletting
and of such alterations and repairs; third, to payment of rent due and unpaid
hereunder; and the residue, if any, shall be held by Landlord and applied in
payment of future rent as the same become due hereunder. If Tenant has been
credited with any rent to be received by such subletting under clause (i) and
such rent shall not be promptly paid to Landlord by the subtenant(s), of or such
rentals received from such subletting under clause (i) during any month are less
than those to be paid during that month by Tenant hereunder, Tenant shall pay
any such deficiency to Landlord. Such deficiency shall be calculated and paid
monthly. For all purposes set forth in this subparagraph, Landlord is hereby
irrevocably appointed attorney-in-fact for Tenant, with power of substitution.
No taking of possession of the Premises by Landlord, as attorney-in-fact for
Tenant, shall be construed as an election on its part to terminate this Lease
unless a written notice of such intention is given to Tenant. Notwithstanding
any such subletting without termination, Landlord may at any time thereafter
elect to terminate this Lease for such previous breach; and
19.1.5 The right to have a receiver appointed for Tenant upon
application by Landlord, to take possession of the Premises and to apply any
rental collected from the Premises and to exercise all other rights and remedies
granted to Landlord as attorney-in-fact for Tenant pursuant to subparagraph
19.1.4.
19.1.6 For purposes of this Article 19: "worth at the time of
award" shall be computed by allowing interest at a per annum rate of ten percent
and rent with respect to each month shall be deemed to be a monthly rental
arrived at by adding (i) one twelfth of the Annual Rent, plus (ii) an amount
equal to the monthly average of all the percentage rental received by or payable
to Landlord during the period that Tenant was conducting Tenant's business in
the Premises in the manner and to the extent required by this Lease, plus (iii)
one twelfth of any items of additional rent paid or payable by Tenant hereunder
during the 12 consecutive month period prior to the month in which Tenant's
default occurs or one twelfth of the annualized amount of additional rent paid
or payable and the last day of the calendar month prior to the month in which
such default occurs, if such default occurs during the first 12 calendar months
of the Term).
19.2 If on account of any breach or default by Tenant in Tenant's
obligations under the terms and conditions of this Lease, it shall become
necessary or appropriate for Landlord to employ or consult with an attorney
concerning or to enforce or defend any of Landlord's rights or remedies arising
under this Lease, Tenant agrees to pay all Landlord's attorney's fees so
incurred. Tenant expressly waives any right to: (a) trial by jury; and
(b) service of any notice required by an present or future law or ordinance
applicable to landlords or tenants but not required by the terms of this Lease.
19.3 Pursuit of any of the foregoing remedies shall not preclude pursuit of
any of the other remedies provided in this Lease or any other remedies provided
by law (all such remedies being cumulative), nor shall pursuit of any remedy
provided in this Lease constitute a forfeiture or waiver of any rent due to
Landlord under this Lease or of any damages accruing to Landlord by reason of
the violation of any of the terms, provisions and covenants contained in this
Lease.
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19.4 No act or thing done by Landlord or its agents during the Term
shall be deemed a termination of this Lease or an acceptance of the surrender
of the Premises, and no agreement to terminate this Lease or accept a
surrender of said Premises shall be valid, unless in writing signed by
Landlord. No waiver by Landlord or any violation or breach of any of the
terms, provisions and covenants contained in this Lease shall be deemed or
construed to constitute a waiver of any other violation or breach of any of
the terms, provisions and covenants contained in this Lease. Landlord's
acceptance of the payment of rental or other payments after the occurrence of
an Event of Default shall not be construed as a waiver of such Default,
unless Landlord so notifies Tenant in writing. Forbearance by Landlord in
enforcing one or more of the remedies provided in this Lease upon an Event of
Default shall not be deemed or construed to constitute a waiver of such
Default or of Landlord's right to enforce any such remedies with respect to
such Default or any subsequent Default.
19.5 To secure the payment of all rentals and other sums of money
becoming due from Tenant under this Lease, Landlord shall have and Tenant
grants to Landlord a first lien upon the leasehold interest of Tenant under
this Lease, which lien may be enforced in equity, and a continuing security
interest upon all goods, wares, equipment, fixtures, furniture, inventory,
accounts, contract rights, chattel paper and other personal property of
Tenant situated on the Premises, and such property shall not be removed
therefrom without the consent of Landlord until all arrearages in rent as
well as any and all other sums of money then due to Landlord under this Lease
shall first have been paid and discharged. In the event of a Default under
this Lease, Landlord shall have, in addition to any other remedies provided
in this Lease or by law, all rights and remedies under the Uniform Commercial
Code, including without limitation the right to sell the property described
in this Section 19.5 at public or private sale upon five (5) days' notice to
Tenant. Tenant shall execute all such financing statements and other
instruments as shall be deemed necessary or desirable in Landlord's
discretion to perfect the security interest hereby created.
20. TENANT'S BANKRUPTCY OR INSOLVENCY.
20.1 If at any time and for so long as Tenant shall be subjected to
the provisions of the United States Bankruptcy Code or other law of the
United States or any state thereof for the protection of debtors as in effect
at such time (each a "Debtor's Law"):
20.1.1 Tenant, Tenant as debtor-in-possession, and any trustee
or receiver of Tenant's assets (each a "Tenant's Representative") shall have
no greater right to assume or assign this Lease or any interest in this
Lease, or to sublease any of the Premises than accorded to Tenant in Article
9, except to the extent Landlord shall be required to permit such assumption,
assignment or sublease by the provisions of such Debtor's Law. Without
limitation of the generality of the foregoing, any right of any Tenant's
Representative to assume or assign this Lease or to sublease any of the
Premises shall be subject to the conditions that:
20.1.1.1 Such Debtor's Law shall provide to Tenant's
Representative a right of assumption of this Lease which Tenant's
Representative shall have timely exercised and Tenant's Representative shall
have fully cured any default of Tenant under this Lease.
20.1.1.2 Tenant's Representative or the proposed
assignee, as the case shall be, shall have deposited with Landlord as
security for the timely payment of rent an amount equal to the larger of:
(a) three months' rent and other monetary charges accruing under this Lease;
and (b) any sum specified in Article 5; and shall have provided Landlord with
adequate other assurance of the future performance of the obligations of the
Tenant under this Lease. Without limitation, such assurances shall include,
at least, in the case of assumption of this Lease, demonstration to the
satisfaction of the Landlord that Tenant's Representative has and will
continue to have sufficient unencumbered assets after the payment of all
secured obligations and administrative expenses to assure Landlord that
Tenant's Representative will have sufficient funds to fulfill the obligations
of Tenant under this Lease; and, in the case of assignment, submission of
current financial statements of the proposed assignee, audited by an
independent certified public accountant reasonably acceptable to Landlord and
showing a net worth and working capital in amounts determined by Landlord to
be sufficient to assure the future performance by such assignee of all of the
Tenant's obligations under this Lease.
20.1.1.3 The assumption or any contemplated
assignment of this Lease or subleasing any part of the Premises, as shall be
the case, will not breach any provision in any other lease, mortgage,
financing agreement or other agreement by which Landlord is bound.
20.1.1.4 Landlord shall have, or would have had
absent the Debtor's Law, no right under Article 9 to refuse consent to the
proposed assignment or sublease by reason of the identity or nature of the
proposed assignee or sublessee or the proposed use of the Premises concerned.
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21. QUIET ENJOYMENT.
Landlord represents and warrants that it has full right and authority to enter
into this Lease and that Tenant, while paying the rental and performing its
other covenants and agreements contained in this Lease, shall peaceably and
quietly have, hold and enjoy the Premises for the Term without hinderance or
molestation from Landlord subject to the terms and provisions of this Lease.
Landlord shall not be liable for any interference or disturbance by other
tenants or third parties, nor shall Tenant be released from any of the
obligations of this Lease because of such interference or disturbance.
22. DAMAGE BY FIRE, ETC.
22.1 In the event the Premises or the Building are damaged by fire or
other cause and in Landlord's reasonable estimation such damage can be
materially restored within two hundred fifth (250) days, Landlord shall
forthwith repair the same and this Lease shall remain in full force and
effect, except that Tenant shall be entitled to a proportionate abatement in
rent from the date of such damage. Such abatement of rent shall be made pro
rata in accordance with the extent to which the damage and the making of such
repairs shall interfere with the use and occupancy by Tenant of the Premises
from time to time. Within forty-five (45) days from the date of such damage,
Landlord shall notify Tenant, in writing, of Landlord's reasonable estimation
of the length of time within which material restoration can be made, and
Landlord's determination shall be binding on Tenant. For purposes of this
Lease, the Building or Premises shall be deemed "materially restored" if they
are in such condition as would not prevent or materially interfere with
Tenant's use of the Premises for the purpose for which it was being used
immediately before such damage.
22.2 If such repairs cannot, in Landlord's reasonably estimation, be made
within two hundred fifty (250) days, Landlord and Tenant shall each have the
option of giving the other, at any time within sixty (60) days after such
damage, notice terminating this Lease as of the date of such damage. In the
event of the giving of such notice, this Lease shall expire and all interest of
the Tenant in the Premises shall terminate as of the date of such damage as if
such date had been originally fixed in this Lease for the expiration of the
Term. In the event that neither Landlord nor Tenant exercises its option to
terminate this Lease, then Landlord shall repair or restore such damage, this
Lease continuing in full force and effect, and the rent hereunder shall be
proportionately abated as provided in Section 22.1.
22.3 Landlord shall not be required to repair or replace any damage or
loss by or from fire or other cause to any panelings, decorations,
partitions, additions, railings, ceilings, floor coverings, office fixtures
or any other property or improvements installed on the Premises or belonging
to Tenant. Any insurance which may be carried by Landlord or Tenant against
loss or damage to the Building or Premises shall be for the sole benefit of
the party carrying such insurance and under its sole control.
22.4 IN the event that Landlord should fail to complete such repairs and
material restoration within sixty (60) days after the date estimated by Landlord
therefor as extended by this Section 22.4, Tenant may at its option and as its
sole remedy terminate this Lease by delivering written notice to Landlord,
within fifteen (15) days after the expiration of said period of time, whereupon
the Lease shall end on the date of such notice or such later date fixed in such
notice as if the date of such notice was the date originally fixed in this Lease
for the expiration of the Term; provided, however, that if construction is
delayed because of changes, deletions or additions in construction requested by
Tenant, strikes, lockouts, casualties, Acts of God, war, material or labor
shortages, government regulation or control or other causes beyond the
reasonable control of Landlord, the period for restoration, repair or rebuilding
shall be extended for the amount of time Landlord is so delayed.
22.5 Notwithstanding anything to the contrary contained in this Article:
(a) Landlord shall not have any obligation whatsoever to repair, reconstruct, or
restore the Premises when the damages resulting from any casualty covered by the
provisions of this Article 22 occur during the last twelve (12) months of the
Term or any extension thereof, but if Landlord determines not to repair such
damages Landlord shall notify Tenant and if such damages shall render any
material portion of the Premises untenantable Tenant shall have the right to
terminate this Lease by notice to Landlord within fifteen (15) days after
receipt of Landlord's notice; and (b) in the event the holder of any
indebtedness secured by a mortgage or deed of trust covering the Premises or
Building requires that any insurance proceeds by applied to such indebtedness,
then Landlord shall have the right to terminate this Lease by delivering written
notice of termination to Tenant within fifteen (15) days after such requirement
is made by any such holder, whereupon this Lease shall end on the date of such
damage as if the date of such damage were the date originally fixed in this
Lease for the expiration of the Term.
22.6 In the event of any damage or destruction to the Building or
Premises by any peril covered by the provisions of this Article 22, it shall
be Tenant's responsibility to properly secure the Premises and upon notice
from Landlord to remove
11
forthwith, at its sole cost and expense, such portion of all of the
property belonging to Tenant or its licensees from such portion or all of the
Building or Premises as Landlord shall request.
22.7 The provisions of this Lease, including this Article, constitute an
express agreement between Landlord and Tenant with respect to any and all damage
to, or destruction of, all or any party of the Premises or the Building and any
statute or regulation of the State of California, including, without
limitation, Sections 1932(2) and 1934(4) of the California Civil Code, with
respect to any rights or obligations concerning damage or destruction in the
absence of an express agreement between the parties, and any other statute or
regulation, now or hereafter in effect, shall have no application to the Lease
or any damage or destruction to all or any part of the Premises or the Building.
23. EMINENT DOMAIN.
If all or any substantial part of the Premises shall be taken or appropriated by
any public or quasi-public authority under the power of eminent domain, or
conveyance in lieu of such appropriation, either party to this Lease shall have
the right, at its option, of giving the other, at any time within thirty (30)
days after such taking, notice terminating this Lease, except that Tenant may
only terminate this Lease by reason of taking or appropriation, if such taking
or appropriation shall be so substantial as to materially interfere with
Tenant's use and occupancy of the Premises. If neither party to this Lease
shall so elect to terminate this Lease, the rental thereafter to be paid shall
be adjusted on a fair and equitable basis under the circumstances. In addition
to the rights of Landlord above, if any substantial part of the Building shall
be taken or appropriated by andy public or quasi-public authority under the
power of eminent domain or conveyance in lieu thereof, and regardless of whether
the Premises or any part thereof are so taken or appropriated, Landlord shall
have the right, at its sole option, to terminate this Lease. Landlord shall be
entitled to any and all income, rent, award, or any interest whatsoever in or
upon any such sum, which may be paid or made in connection with any such public
or quasi-public use or purpose, and Tenant hereby assigns to Landlord any
interest it may have in or claim to all or any part of such sums, other than any
separate award which may be made with respect to Tenant's trade fixtures and
moving expenses; Tenant shall make no claim for the value of any unexpired Term.
24. SALE BY LANDLORD.
In event of a sale or conveyance by Landlord of the Building, the same shall
operate to release Landlord from any future liability upon any of the covenants
or conditions, expressed or implied, contained in this Lease in favor of Tenant,
and in such event Tenant agrees to look solely to the responsibility of the
successor in interest of Landlord in and to this Lease. Except as set forth in
this Article 24, this Lease shall not be affected by any such sale and Tenant
agrees to attorn to the purchaser or assignee. If any security has been given
by Tenant to secure the faithful performance of any of the covenants of this
Lease, Landlord may transfer or deliver said security, as such, to Landlord's
successor in interest and thereupon Landlord shall be discharged from any
further liability with regard to said security.
25. ESTOPPEL CERTIFICATES.
Within ten (10) days following any written request which Landlord may make from
time to time, Tenant shall execute and deliver to Landlord or mortgagee or
prospective mortgagee a sworn statement certifying: (a) the date of
commencement of this Lease; (b) the fact that this Lease is unmodified and in
full force and effect (or, if there have been modifications to this Lease, that
this Lease is in full force and effect, as modified, and stating the date and
nature of such modifications); (c) the date to which the rent and other sums
payable under this Lease have been paid; (d) the fact that there are no current
defaults under this Lease by either Landlord or Tenant except as specified in
Tenant's statement; and (e) such other matters as xxx be requested by Landlord.
Landlord and Tenant intend that any statement delivered pursuant to this
Article 25 may be relied upon by any mortgagee, beneficiary or purchaser and
Tenant shall be liable for all loss, cost or expense resulting from the failure
of any sale or funding of any loan caused by any material misstatement contained
in such estoppel certificate.
26. SURRENDER OF PREMISES.
26.1 Tenant shall, at least thirty (30) days before the last day of the
Term, arrange to meet Landlord for a joint inspection of the Premises. In the
event of Tenant's failure to arrange such joint inspection to be held prior to
vacating the Premises, Landlord's inspection at or after Tenant's vacating the
Premises shall be conclusively deemed correct for purposes of determining
Tenant's responsibility for repairs and restoration.
12
26.2 At the end of the Term or any renewal of the Term or other sooner
termination of this Lease, Tenant will peaceably deliver up to Landlord
possession of the Premises, together with all improvements or additions upon
or belonging to the same, by whomsoever made, in the same conditions received
or first installed, broom clean and free of all debris, excepting only
ordinary wear and tear and damage by fire or other casualty. Tenant may, and
at Landlord's request shall, at Tenant's sole cost, remove upon termination
of this Lease, any and all furniture, furnishings, movable partitions of less
than full height from floor to ceiling, trade fixtures and other property
installed by Tenant, title to which shall not be in or pass automatically to
Landlord upon such termination, repairing all damage caused by such removal.
Property not so removed shall, unless requested to be removed, be deemed
abandoned by the Tenant and title to the same shall thereupon pass to
Landlord under this Lease as by a xxxx of sale. All other alterations,
additions and improvements in, on or to the Premises shall be dealt with and
disposed of as provided in Article 6.
26.3 All obligations of Tenant under this Lease not fully performed as
of the expiration or earlier termination of the Term shall survive the
expiration or earlier termination of the Term. In the event that Tenant's
failure to perform prevents Landlord from releasing the Premises, Tenant
shall continue to pay rent pursuant to the provisions of Article 14 until
such performance is complete. Upon the expiration or earlier termination of
the Term, Tenant shall pay to Landlord the amount, as estimated by Landlord,
necessary to repair and restore the Premises as provided in this Lease and/or
to discharge Tenant's obligation for unpaid amounts due or to become due to
Landlord. All such amounts shall be used and held by Landlord, or with any
excess to be returned to Tenant after all such obligations have been
determined and satisfied. Any otherwise unused Security Deposit shall be
credited against the amount payable by Tenant under this Lease.
27. NOTICES.
Any notice or document required or permitted to be delivered under this Lease
shall be addressed to the intended recipient, shall be transmitted personally,
by fully prepaid registered or certified United States Mail return receipt
requested, or by reputable independent contract delivery service furnishing a
written record of attempted or actual delivery, and shall be deemed to be
delivered when tendered for delivery to the addressee at its address set forth
on the Reference Page, or at such other address as it has then last specified by
written notice delivered in accordance with this Article 27, or if to Tenant at
either its aforesaid address or its last known registered office or home of a
general partner or individual owner, whether or not actually accepted or
received by the addressee.
28. TAXES PAYABLE BY TENANT.
In addition to rent and other charges to be paid by Tenant under this Lease,
Tenant shall reimburse to Landlord, upon demand, any and all taxes payable to
Landlord (other than net income taxes) whether or not now customary or within
the contemplation of the parties to this Lease: (a) upon, allocable to, or
measured by or on the gross or net rent payable under this Lease, including
without limitation any gross income tax or excise tax levied by the State, any
political subdivision thereof, or the Federal Government with respect to the
receipt of such rent; (b) upon or with respect to the possession, leasing,
operation, management, maintenance, alteration, repair, use or occupancy of the
Premises or any portion thereof, including any sales, use or service tax imposed
as a result thereof; (c) upon or measured by the Tenant's gross receipts or
payroll or the value of Tenant's equipment, furniture, fixtures and other
personal property of Tenant or leasehold improvements, alterations or additions
located in the Premises; or (d) upon this transaction or any document to which
Tenant is a party creating or transferring any interest of Tenant in this Lease
or the Premises. In addition to the foregoing, Tenant agrees to pay, before
delinquency, any and all taxes levied or assessed against Tenant and which
become payable during the term hereof upon Tenant's equipment, furniture,
fixtures and other personal property of Tenant located in the Premises.
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30. DEFINED TERMS AND HEADINGS.
The Article headings shown in this Lease ar for convenience of reference and
shall in no way define, increase, limit or describe the scope or intent of any
provision of this Lease. Any indemnification or insurance of Landlord shall
apply to and inure to the benefit of all the following "Landlord Entities",
being Landlord, Landlord's investment manager, and the trustees, board of
directors, officers, general partners, beneficiaries, stockholders, employees
and agents of each of them. Any option granted to Landlord shall also include
or be exercisable by Landlord's trustee, beneficiary, agents and employees, as
the case may be. In any case where this Lease is signed by more than one
person, the obligations under this Lease shall be joint and several. The terms
"Tenant" and "Landlord" or any pronoun used in place thereof shall indicate and
include the masculine or feminine, the singular or plural number, individuals,
firms or corporations, and each of their respective successors, executors,
administrators and permitted assigns, according to the context hereof. The term
"rentable area" shall mean the rentable area of the Premises or the Building as
calculated by the Landlord on the basis of the plans and specifications of the
Building including a proportionate share of any common areas. Tenant hereby
accepts and agrees to be bound by the figures for the rentable space footage of
the Premises and Tenant's Proportionate Share shown on the Reference Page.
31. TENANT'S AUTHORITY.
If Tenant signs as a corporation each of the persons executing this Lease on
behalf of Tenant represents and warrants that Tenant has been and is qualified
to do business in the state in which the Building is located, that the
corporation has fully right and authority to enter into this Lease, and that all
persons signing on behalf of the corporation were authorized to do so by
appropriate corporate actions. If Tenant signs as a partnership, trust or other
legal entity, each of the persons executing this Lease on behalf of Tenant
represents and warrants that Tenant has complied with all applicable laws, rules
and governmental regulations relative to its right to do business in the state
and that such entity on behalf of the Tenant was authorized to do so my any and
all appropriate partnership, trust or other actions. Tenant agrees to furnish
promptly upon request a corporate resolution, proof of due authorization by
partners, or other appropriate documentation evidencing the due authorization of
Tenant to enter into this Lease.
32. COMMISSIONS.
Each of the parties represents and warrants to the other that it has not dealt
with any broker or finder in connection with this Lease, except as described on
the Reference page.
33. TIME AND APPLICABLE LAW.
Time is of the essence of this Lease and all of its provisions. This Lease
shall in all respects be governed by the laws of the state in which the Building
is located.
34. SUCCESSORS AND ASSIGNS.
Subject to the provisions of Article 9, the terms, covenants and conditions
contained in this Lease shall be binding upon and inure to the benefit of the
heirs, successors, executors, administrators and assigns of the parties to this
Lease.
35. ENTIRE AGREEMENT.
This Lease, together with its exhibits, contains all agreements of the parties
to this Lease and supersedes any previous negotiations. There have been no
representations made by the Landlord or understandings made between the parties
other than those set forth in this Lease and its exhibits. This Lease may not
be modified except by a written instrument duly executed by the parties to this
Lease.
36. EXAMINATION NOT OPTION.
Submission of this Lease shall not be deemed to be a reservation of the
Premises. Landlord shall not be bound by this Lease until it has received a
copy of this Lease duly executed by Tenant and has delivered to Tenant a copy of
this Lease duly executed by Landlord, and until such delivery Landlord reserves
the right to exhibit and lease the Premises to other prospective tenants.
Notwithstanding anything contained in this Lease to the contrary, Landlord may
withhold delivery of possession of the Premises from Tenant until such time as
Tenant has paid to Landlord any security deposit required by Article 5, the
first month's rent as set forth in Article 3 and any sum owed pursuant to this
Lease.
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37. RECORDATION.
Tenant shall not record or register this Lease or a short form memorandum hereof
without the prior written consent of Landlord, and then shall pay all charges
and taxes incident such recording or registration.
38. AUTHORIZATION OF FINANCIAL INFORMATION.
Tenant hereby authorizes Landlord to verify past and present business and
employment earning records, bank accounts, stock holdings, and any other asset
balances Landlord deems necessary to verify Tenant's financial and credit
situation. Tenant further authorized Landlord to order a consumer credit report
and to verify other credit information, including past and present loans,
extensions of credit, and landlord references. This authorization includes the
reverification of any of the information that the Landlord shall be originally
authorized to obtain and verify and such information may be obtained and
verified by Landlord's agents and/or affiliates and any investors and/or
assigns.
39. HAZARDOUS MATERIALS.
(a) Tenant agrees that Tenant, its agents and contractors, licensees,
or invitees shall not handle, use, manufacture, store or dispose of any
flammables, explosives, radioactive materials, hazardous wastes or materials,
toxic wastes or materials, or other similar substances, petroleum products or
derivatives (collectively "Hazardous Materials") on, under, or about the
Premises, without Landlord's prior written consent (which consent shall not
be unreasonably withheld as long as (i) such Hazardous Materials are
necessary or useful to Tenant's business and Tenant demonstrates and
documents to Landlord's reasonable satisfaction that such Hazardous Materials
will be used, kept, and stored in compliance with all laws relating to any
Hazardous Materials so brought or used or kept in or about the Premises; and
(ii) that Tenant will give all notices required by applicable governmental
agencies concerning the presence in or on the Premises or the release of such
Hazardous Materials from the Premises) provided that Tenant may handle,
store, use or dispose of products containing small quantities of Hazardous
Materials, which products are of a type customarily found in offices and
households (such as aerosol cans containing insecticides, toner for copiers,
paints, paint remover, and the like), provided further that Tenant shall
handle, store, use and dispose of any such Hazardous Materials in a safe and
lawful manner and shall not allow such Hazardous Materials to contaminate the
Premises or the environment.
(b) Tenant further agrees that Tenant will not permit any substance
suspected of causing cancer of reproductive toxicity to come into contact
with groundwater under the Premises. Any such substance coming into contact
with groundwater shall be considered a Hazardous Material for purposes of
this Rider.
(c) (i) Notwithstanding the provisions of Paragraph (a), Tenant may
handle, store, and use Hazardous Materials, limited to the types, amounts,
and use identified in the Hazardous Materials Exhibit attached hereto. If no
Hazardous Materials Exhibit is attached to this Lease, then this Paragraph
(c) shall be of no force and effect. Tenant hereby certifies to Landlord
that the information provided by Tenant pursuant to this Paragraph is true,
correct, and complete. Tenant covenants to comply with the use restrictions
shown on the attached Hazardous Materials Exhibit. Tenant's business and
operations, and more especially its handling, storage, use and disposal of
Hazardous Materials shall at all times comply with all applicable laws
pertaining to Hazardous Materials. Tenant shall secure and abide by all
permits necessary for Tenant's operations on the Premises. Tenant shall give
or post all notices required by all applicable laws pertaining to Hazardous
Materials. If Tenant shall at any time fail to comply with this Paragraph,
Tenant shall immediately notify Landlord in writing of such noncompliance.
(ii) Tenant shall maintain all records required by applicable
governmental agencies including any Material Safety Data Sheets (as required by
the Occupational Safety and Health Act) relating to any Hazardous Materials to
be used, kept, or stored at or on the Premises. Landlord shall be entitled to
view and copy such records upon reasonable advance notice. In addition Tenant
shall provide Landlord copies of any reports required to be made to applicable
governmental agencies at the time such reports are made.
(iii) Tenant shall not store hazardous wastes on the Premises for more
than 90 days; "hazardous waste" has the meaning given it by the Resource
Conservation and Recovery Act of 1976, as amended. Tenant shall not install any
underground or above ground storage tanks on the Premises. Tenant shall not
dispose of any Hazardous Material or sold waste on the Premises. In performing
any alterations of the Premises permitted by the Lease, Tenant shall not install
any Hazardous Material in the Premises without the specific consent of Landlord
attached as an exhibit to this Rider.
(iv) Any increase in the premiums for necessary insurance on the
Property which arises form Tenant's use and/or storage of Hazardous Materials
shall be solely at Tenant's expense. Tenant shall procure and maintain at its
sole
15
expense such additional insurance as may be necessary to comply with any
requirement of any Federal, State or local governmental agency with
jurisdiction.
(d) If Landlord, in its sole discretion, believes that the Premises or the
environment have become contaminated with Hazardous Materials that must be
removed under the laws of the state where the Premises are located, in breach by
Tenant of the provisions of this Lease, Landlord, in addition to its other
rights under this Lease, may enter upon the Premises and obtain samples from the
Premises, including without limitation the soil and groundwater under the
Premises, for the purposes of analyzing the same to determine whether and to
what extent the Premises or the environment have become so contaminated. Tenant
shall reimburse Landlord for the costs of any inspection, sampling and analysis
that discloses contamination for which Tenant is liable under the terms of this
Rider. Tenant may not perform any sampling, testing, or drilling to locate any
Hazardous Materials on the Premises without Landlord's prior written consent not
to be unreasonably withheld.
(e) Without limiting the above, Tenant shall reimburse, defend, indemnify
and hold Landlord harmless from and against any and all claims, losses,
liabilities, damages, costs and expenses, including without limitation, loss of
rental income, loss due to business interruption, and attorneys fees and costs,
arising out of or in any way connected with the use, manufacture, storage, or
disposal of Hazardous Materials by Tenant, its agents or contractors on, under
or about the Premises including, without limitation, the costs of any required
or necessary investigation, repair, cleanup or detoxification and the
preparation of any closure or other required plans in connection herewith,
whether voluntary or compelled by governmental authority. The indemnity
obligations of Tenant under this clause shall survive any termination of this
Lease. At Landlord's option, Tenant shall perform any required or necessary
investigation, repair, cleanup, or detoxification of the Premises. In such
case, Landlord shall have the right, in its sole discretion, to approve all
plans, consultants, and cleanup standards. Tenant shall provide Landlord on a
timely basis with (i) copies of all documents, reports, and communications with
governmental authorities; and (ii) notice and an opportunity to attend all
meetings with regulatory authorities. Tenant shall comply with all notice
requirements and Landlord and Tenant agree to cooperate with governmental
authorities seeking access to the Premises for purposes of sampling or
inspection. No disturbance of Tenant's use of the Premises resulting from
activities conducted pursuant to this Paragraph shall constitute an actual or
constructive eviction of Tenant from the Premises. In the event that such
cleanup extends beyond the termination of this Lease, Tenant's obligation to pay
rent (including additional rent and percentage rent, if any) shall continue
until such cleanup is completed and any certificate of clearance or similar
document has been delivered to Landlord. Rent during such holdover period shall
be at market rent; if the parties are unable to agree upon the amount of such
market rent, then Landlord shall have the option of (a) increasing the rent for
the period of such holdover based upon the increase in the cost-of-living from
the third month preceding the commencement date to the third month preceding the
start of the holdover period, using such indices and assumptions and
calculations as Landlord in its sole reasonable judgement shall determine are
necessary; or (b) having Landlord and Tenant each appoint a qualified MAI
appraiser doing business in the area; in turn, these two independent MAI
appraisers shall appoint a third MAI appraiser and the majority shall decide
upon the fair market rental for Premises as of the expiration of the then
current term. Landlord and Tenant shall equally share in the expense of this
appraisal except that in the event the rent is found to be within fifteen
percent of the original rate quoted by Landlord, then Tenant shall bear the full
cost of all the appraisal process. In no event shall the rent be subject to
determination or modification by any person, entity, court, or authority other
than as set forth expressly herein, and in no event shall the rent for any
holdover period be less than the rent due in the preceding period.
(f) Notwithstanding anything set forth in this Lease, Tenant shall only be
responsible for contamination of Hazardous Materials or any cleanup resulting
directly therefrom, resulting directly from matters occurring or Hazardous
Materials deposited (other than by contractors, agents or representatives
controlled by Landlord) during the Lease term, and any other period of time
during which Tenant is in actual or constructive occupancy of the Premises.
Tenant shall take reasonable precautions to prevent the contamination of the
Premises with Hazardous Materials by third parties.
(g) It shall not be unreasonable for Landlord to withhold its consent to
any proposed Assignment or Sublease if (i) the proposed Assignee's or
Sublessee's anticipated use of the Premises involves the generation, storage,
use, treatment or disposal of Hazardous Materials; (ii) the proposed Assignee or
Sublessee has been required by any prior landlord, lender, or governmental
authority to take remedial action in connection with Hazardous Materials
contaminating a property if the contamination resulted from such Assignee's or
Sublessee's actions or use of the property in question; or (iii) the proposed
Assignee or Sublessee is subject to an enforcement order issued by any
governmental authority in connection with the use, disposal, or storage of a
hazardous material.
(h) Any of Tenant's insurance insuring against claims of the type dealt
with in this Rider shall be considered primary coverage for claims against the
Property arising out of or under this Paragraph.
16
(i) In the event of (i) any transfer of Tenant's interest under this
Lease; or (ii) the termination of this Lease, by lapse of time or otherwise,
Tenant shall be solely responsible for compliance with any and all then
effective federal, state or local laws concerning (i) the physical condition of
the Premises, Building, or Property; or (ii) the presence of hazardous or toxic
materials in or on the Premises, Building, or Property (for example, the New
Jersey Environmental Cleanup Responsibility Act, the Illinois Responsible
Property Transfer Act, or similar applicable state laws), including but not
limited to any reporting or filing requirements imposed by such laws. Tenant's
duty to pay rent, additional rent, and percentage rent shall continue until the
obligations imposed by such laws are satisfied in full and any certificate of
clearance or similar document has been delivered to Landlord.
(j) All consents given by Landlord pursuant to this Article shall be in
writing and shall be attached as amendments to this Lease. If such consents are
not attached to this Lease, then such consents will be deemed withheld.
40. SCHEDULE OF RENTS.
In accordance with Article 3, the Annual Rent and Monthly Installment of Rent
shall increase per the schedule shown below:
December 1, 1995 - November 30, 1997: $4,460.00 per month or $53,520.00 per year;
December 1, 1997 - November 30, 1998: $4,638.40 per month or $55,660.80 per year;
December 1, 1998 - November 30, 1999: $4,824.24 per month or $57,890.88 per year;
December 1, 1999 - November 30, 2000: $5,017.21 per month or $60,206.52 per year;
41. LIMITATION OF LANDLORD'S LIABILITY.
Redress for any claim against Landlord under this Lease shall be limited to and
enforceable only against and to the extent of Landlord's interest in the
Building. The obligations of Landlord under this Lease are not intended to and
shall not be personally binding on, nor shall any resort be had to the private
properties of, any of its trustees or board of directors and officers, as the
case may be, its investment manager, the general partners thereof, or any
beneficiaries, stockholders, employees, or agents of Landlord or the investment
manager.
LANDLORD: TENANT:
SIERRA TRINITY INDUSTRIAL PARK, Biex, Inc.
a property of RREEF Performance Partnership-I, L.P., a Delaware corporation
an Illinois limited partnership
By: RREEF MANAGEMENT COMPANY,
a California corporation
By: /s/ Xxxxxx Xxxx By: /s/ H. Xxxx Xxxx
------------------------- ---------------------
Xxxxxx X. Xxxx
Title: Vice President Title: VP Operations
Property Management and R & D
------------------
Dated: Nov. 14, 1995
------------------
Dated: 11/15/95
------------------------
17
EXHIBIT "A"
attached to and made a part of that certain Lease Agreement dated November 13,
1995, by and between SIERRA TRINITY INDUSTRIAL PARK, a property of RREEF
Performance Partnership-I, L.P., an Illinois limited partnership, as Landlord,
and Biex, Inc., a Delaware corporation, as Tenant, for the Premises commonly
known as 0000 Xxxxxx Xxxxx, Xxxxx X, Xxxxxx, Xxxxxxxxxx.
PREMISES
Exhibit A is intended only to show the general layout of the Premises as of the
beginning of the Term of this Lease. It does not in any way supersede any of
Landlord's rights set forth in Section 17.2 with respect to arrangements and/or
locations of public parts of the Building and changes in such arrangements
and/or locations. It is not to scale; any measurements or distances shown
should be taken as approximate.
[GRAPHIC OMITTED]
EXHIBIT "A"
page one of one
EXHIBIT "B"
attached to and made a part of that certain Lease Agreement dated November 13,
1995, by and between SIERRA TRINITY INDUSTRIAL PARK, a property of RREEF
Performance Partnership-I, L.P., an Illinois limited partnership, as Landlord,
and Biex, Inc., a Delaware corporation, as Tenant.
INITIAL ALTERATIONS
Landlord shall, at its sole cost and expense, improve the Lease Premises per
plans and specifications by Xxxxxxx X. Xxxxx Construction dated October 17, 1995
as shown on the plan below in accordance with Tenant Work Letter attached
hereto.
Demolition - Xxxxx [GRAPHIC OMITTED]
Carpentry Framing & Material & Wall Bracing
Carpentry Finish
City Building Permits
Insulation R-11 & R-10
Drywall - Hang, Tape & Finish
Painting @ Walls, (4) Door Frames & (4) Doors-Except Walls & Ceil'g @ Bathrms'
Fire Sprinkler System- Add (1) hd., relocate (2) hds. & plug (1). (Does not
include engineered drawings or fire sprinkler permit or plan check fee or review
of building plans)
Electrical-Remove E. Receptacles, Safe-end & install 23 New Receptables, 18 New
Switches, excludes rough-in of phone outlets
T-Bar Ceiling - Patch @ removed walls & new ceil'g @ new office areas allows for
840 S.F.
(2) New 3'x7' S.C. Stain Grade Birch Doors & (4) New Hollow Metal Frames w/20
min. label
(3) Finish Door Hardware-Pasage Latches, (4) Doorstops
Floor Prep.
Carpet @ New Offices. w/ Atlas/Mayfair 20 oz.
Remove E. glue on floor in preparation of new V.C.T.
Vinyl Composition Tile w/ 4" Rubber base-Xxxxxxxxx Exceion in choice of
following colors: $ 51839, $51858, $51899, $51903, $519094.
4" Rubber base @ carpet & Existing V.C.T. areas
H.V.A.C. - (3) new returns & (1) new supplies
Debris Box
Overhead & Profit
Total Basebid
mates: Not included in above costs or scope of work.
Rough-in phone outlets, conduit & box, no wire - each
Add (3) New Fxtres @ Office "E" of Faxed Bid Plan
Add 3-way switches @ Office "E" of Faxed Bid Plan
Add For Engineered Drawings and Fire Sprinkler permit-but does not include plan
check fee for review of building plans for fire district.
__usions:
__ctural Engineering Fees, City, Fire Dept., municipality fees and permits
(other than those officially included), telephone and communications, computer,
security, signage, window _ring, moving or storage of tenants' supplies,
furniture, equipment, etc., and final janitorial services and any reconstructing
or repair or alteration of the building or systems not specified on budget
estimate. No architectural drawings for City permit.
Extinguisher w/ bracket (no cabinet) & mounting - unit price
EXHIBIT "B"
page one of three
EXHIBIT "B"
attached to and made a part of that certain Lease Agreement dated November 13,
1995, by and between SIERRA TRINITY INDUSTRIAL PARK, a property of RREEF
Performance Partnership-I, L.P., an Illinois limited partnership, as Landlord,
and Biex, Inc., a Delaware corporation, as Tenant.
TENANT WORK LETTER
The undersigned, a Landlord and Tenant respectively, are executing
simultaneously with this Work Agreement, a written Lease covering premises as
described in the Lease and hereby attach this Work Agreement to said Lease as
Exhibit B thereto.
1. (a) Except to the extent otherwise provided in Subparagraphs (b) and (c)
of this Paragraph, Landlord shall, up to a maximum of $24,780.00
($5.00 psf), perform improvements per the space plans provided by
Xxxxxxx X. Xxxxx Construction, dated October 17, 1995, required for
the performance of the work (hereinafter referred to as "Building
Standard Work") hereinafter described.
(b) Tenant may request work (hereinafter referred to as "Building
Non-Standard Work") not conforming with, or in addition to, Building
Standard Work. If Landlord approves such request, any architectural,
mechanical, and electrical plans and specifications required for such
Building Non-Standard Work shall be furnished, at Tenant's sole cost
and expense, by Landlord's architects and engineers.
(c) Any interior decorating services, such as selection of wall paint
colors and/or wall coverings, fixtures, non-building standard carpet,
and any or all other decorator items required by Tenant in the
performance of said work referred to hereinabove in Subparagraphs (a)
and (b) shall be at the Tenant's sole cost and expense.
(d) All plans and specifications referred to hereinabove in Subparagraphs
(a), (b) and (c) are subject to the Landlord's approval, which the
Landlord agrees shall not be unreasonably withheld.
(e) Landlord and Tenant shall diligently pursue the preparation of all
plans and specifications for the improvements provided for in
Paragraphs 2. and 3. All such plans shall be approved by both
Landlord and Tenant, which approval shall not be unreasonably withheld
by either party. Complete plans and specifications and a cost
estimate for the portion of the work covered thereby to be borne by
Tenant shall be approved by Tenant three weeks from Lease Execution.
2. Landlord will, at its sole cost and expense, furnish and install all of the
"Building Standard Work" (see attached schedule of Building Standards)
specified by Landlord and as indicated on Tenant's final approved plans:
Xxxxxxx X. Xxxxx Construction dated October 17, 1995.
3. Provided Tenant's plans and specifications are furnished by the date
provided hereinabove in Paragraph 1.(e) and approved by Landlord, Landlord
shall cause Tenant's "Building Non-Standard Work" to be installed by
Landlord's contractor, but at Tenant's sole cost and expense. Prior to
commencing any such work, Landlord, its contractor, or its architects and
engineers, shall submit to Tenant a written estimate of the cost thereof.
If Tenant shall fail to approve any such estimate within ten (10) days
after submission thereof, such failure shall be deemed a disapproval
thereof, and Landlord's contractor shall not proceed with such work.
Tenant agrees to pay Landlord within thirty (30) days upon being billed
therefor, the cost to Landlord of all such Building Non-Standard Work.
Such bills may be rendered during the progress of the performance of the
work and the furnishings and installation of the materials to which such
bills relate. Landlord may require Tenant to deposit the estimated costs
of such work with Landlord prior to the commencement of such work.
EXHIBIT "B"
page two of three
EXHIBIT "B"
attached to and made a part of that certain Lease Agreement dated November 13,
1995, by and between SIERRA TRINITY INDUSTRIAL PARK, a property of RREEF
Performance Partnership-I, L.P., an Illinois limited partnership, as Landlord,
and Biex, Inc., a Delaware corporation, as Tenant.
4. When Landlord's architect has furnished Landlord with a certificate that
the work to be done by Landlord pursuant to Paragraphs 2. and 3. above have
been substantially completed, the Premises completed and possession thereof
deemed delivered to Tenant, for all purposes of Lease, including, without
limitation Paragraph 2. thereof.
Agreed To and Accepted:
LANDLORD: TENANT:
SIERRA TRINITY INDUSTRIAL PARK, Biex, Inc.
a property of RREEF Performance a Delaware corporation
Partnership-I, L.P., an Illinois
limited partnership
By: RREEF MANAGEMENT COMPANY,
a California corporation
By: /s/ Xxxxxx Xxxx By: /s/ H. Xxxx Xxxx
--------------------------- -------------------------------
Xxxxxx X. Xxxx
Title: Vice President Title: VP R & D and Operations
Property Management -------------------------------
Dated: Nov. 14, 1995
Dated: 11/15/95 -------------------------------
---------------------------
EXHIBIT "B"
page three of three
EXHIBIT "C"
attached to and made a part of that certain Lease Agreement dated November 13,
1995, by and between SIERRA TRINITY INDUSTRIAL PARK, a property of RREEF
Performance Partnership-I, L.P., an Illinois limited partnership, as Landlord,
and Biex, Inc., a Delaware corporation, as Tenant.
EXHIBIT "C"
page one of three
EXHIBIT "C"
attached to and made a part of that certain Lease Agreement dated November 13,
1995, by and between SIERRA TRINITY INDUSTRIAL PARK, a property of RREEF
Performance Partnership-I, L.P., an Illinois limited partnership, as Landlord,
and Biex, Inc., a Delaware corporation, as Tenant.
RULES AND REGULATIONS
10. Tenant shall close and lock the doors of its Premises and entirely shut off
all water faucets or other water apparatus and electricity, gas or air outlets
before Tenant and its employees leave the Premises. Tenant shall be responsible
for any damage or injuries sustained by other tenants or occupants of the
Building or by Landlord for noncompliance with this rule.
11. The toilet rooms, toilets, urinals, wash bowls and other apparatus shall
not be used for any purpose other than that for which they were constructed, no
foreign substance of any kind whatsoever shall be thrown therein, and the
expense of any breakage, stoppage or damage resulting from the violation of this
rule shall be borne by the Tenant who, or whose employees or invitees, shall
have caused it.
12. Tenant shall not install any radio or television antenna, loudspeaker or
other device on the roof or exterior walls of the Building. Tenant shall not
interfere with radio or television broadcasting or reception from or in the
Building or elsewhere.
13. Except as approved by Landlord, Tenant shall not xxxx, drive nails, screw
or drill into the partitions, woodwork or plaster or in any way deface the
Premises. Tenant shall not cut or bore holes for wires. Tenant shall not affix
any floor covering to the floor of the Premises in any manner except as approved
by Landlord. Tenant shall repair any damage resulting from noncompliance with
this rule.
14. Tenant shall not install, maintain or operate upon the Premises any vending
machine.
15. Tenant shall store all its trash and garbage within its Premises. Tenant
shall not place into any trash box or receptacle any material which cannot be
disposed of in the ordinary and customary manner of trash and garbage disposal.
All garbage and refuse disposal shall be made in accordance with directions
issued from time to time by Landlord.
16. No cooking shall be done or permitted by any Tenant on the Premises, except
that use by the Tenant of Underwriters' Laboratory approved equipment for
brewing coffee, tea, hot chocolate and similar beverages shall be permitted,
provided that such equipment and use is in accordance with all applicable
federal, state and city laws, codes, ordinances, rules and regulations.
17. Tenant shall not use any space or in the public halls or the Building any
hand trucks except those equipped with the rubber tires and side guards or such
other material-handling equipment as Landlord may approve. Tenant shall not
bring any other vehicles of any kind into the Building.
18. Tenant shall not use the name of the Building in connection with or in
promoting or advertising the business of Tenant except as Tenant's address.
19. The requirements of Tenant will be attended to only upon appropriate
application to the office of the Building by an authorized individual.
Employees of Landlord shall not perform any work or do anything outside of their
regular duties unless under special instructions from Landlord, and no employee
of Landlord will admit any person (Tenant or otherwise) to any space without
specific instructions from Landlord.
20. Landlord may waive any one or more of these Rules and Regulations for the
benefit of any particular tenant or tenants, but no such waiver by Landlord
shall be construed as a waiver of such Rules and Regulations in favor of any
other tenant or tenants, nor prevent Landlord from thereafter enforcing any such
Rules and Regulations against any or all of the tenants of the Building.
21. These Rules and Regulations are in addition to, and shall not be construed
to in any way modify or amend, in whole or in part, the terms, covenants,
agreements and conditions of any lease of premises in the Building.
EXHIBIT "C"
page two of three
EXHIBIT "C"
attached to and made a part of that certain Lease Agreement dated November 13,
1995, by and between SIERRA TRINITY INDUSTRIAL PARK, a property of RREEF
Performance Partnership-I, L.P., an Illinois limited partnership, as Landlord,
and Biex, Inc., a Delaware corporation, as Tenant.
22. Landlord reserves the right to make such other and reasonable rules and
restrictions as in its judgement may from time to time be needed for safety and
security, for care and cleanliness of the Building and for the preservation of
good order therein. Tenant agrees to abide by all such rules and regulations
hereinabove stated and any additional rules and regulations which are adopted.
23. Tenant shall be responsible for the observance of all of the foregoing
rules by Tenant's employees, agents, clients, customers, invitees and guests.
EXHIBIT "C"
page three of three
EXHIBIT "D"
attached to and made a part of that certain Lease Agreement dated November 13,
1995, by and between SIERRA TRINITY INDUSTRIAL PARK, a property of RREEF
Performance Partnership-I, L.P., an Illinois limited partnership, as Landlord,
and Biex, Inc., a Delaware corporation, as Tenant.
HAZARDOUS MATERIALS EXHIBIT
The following chemicals are currently used by Tenant in the course of some
part of its laboratory effort. These chemicals appear in the California
Hazardous Substances List (The Director's List, included here for
information) and are provided as an Exhibit to the Lease between Biex, Inc.,
a Delaware corporation and SIERRA TRINITY INDUSTRIAL PARK, a property of
RREEF Performance Partnership-I, L.P., an Illinois limited partnership.
In addition, Tenant work may require that we obtain and utilize other chemical
compounds from time to time and that some of these other chemical compounds may
be on the Director's List. In no instance will Tenant have more than one (1)
Kilogram, in the case of dry chemicals, or one (1) gallon, in the case of liquid
chemicals, of any compound that appears on the Director's List. Tenant will be
in compliance with all City, State and Federal regulations regarding the
possession and handling of all of the materials that Tenant maintain in the
Premises.
Tenant will provide Landlord with an update to this list on a semi-annual basis.
Chemical Common Name Form
Dimethyl Sulfoxide DMSO Liquid
Dimethyl Formamide DMF Liquid
Ethyl Alcohol Ethanol Liquid
Sodium Azide ----- Powder
Sodium Phosphate Dibasic ----- Powder
Polyvinylpyrrolidone PVP Powder
EXHIBIT "D"
page one of one
TABLE OF CONTENTS
ARTICLE PAGE
REFERENCE PAGE. . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
1. USE AND RESTRICTIONS ON USE . . . . . . . . . . . . . . . . . . . . . 1
2. TERM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3. RENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
4. RENT ADJUSTMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
5. SECURITY DEPOSIT. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
6. ALTERATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
7. REPAIR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
8. LIENS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
9. ASSIGNMENT AND SUBLETTING . . . . . . . . . . . . . . . . . . . . . . 5
10. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
11. INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
12. WAIVER OF SUBROGATION . . . . . . . . . . . . . . . . . . . . . . . . 6
13. SERVICES AND UTILITIES. . . . . . . . . . . . . . . . . . . . . . . . 7
14. HOLDING OVER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
15. SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
16. RULES AND REGULATIONS . . . . . . . . . . . . . . . . . . . . . . . . 7
17. REENTRY BY LANDLORD . . . . . . . . . . . . . . . . . . . . . . . . . 7
18. DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
19. REMEDIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
20. TENANT'S BANKRUPTCY OR INSOLVENCY . . . . . . . . . . . . . . . . . . 10
21. QUIET ENJOYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
22. DAMAGE BY FIRE, ETC.. . . . . . . . . . . . . . . . . . . . . . . . . 11
23. EMINENT DOMAIN. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
24. SALE BY LANDLORD. . . . . . . . . . . . . . . . . . . . . . . . . . . 12
25. ESTOPPEL CERTIFICATES . . . . . . . . . . . . . . . . . . . . . . . . 12
26. SURRENDER OF PREMISES . . . . . . . . . . . . . . . . . . . . . . . . 12
27. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
28. TAXES PAYABLE BY TENANT . . . . . . . . . . . . . . . . . . . . . . . 13
30. DEFINED TERMS AND HEADINGS. . . . . . . . . . . . . . . . . . . . . . 14
31. TENANT'S AUTHORITY. . . . . . . . . . . . . . . . . . . . . . . . . . 14
32. COMMISSIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
33. TIME AND APPLICABLE LAW . . . . . . . . . . . . . . . . . . . . . . . 14
34. SUCCESSORS AND ASSIGNS. . . . . . . . . . . . . . . . . . . . . . . . 14
35. ENTIRE AGREEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . 14
36. EXAMINATION NOT OPTION. . . . . . . . . . . . . . . . . . . . . . . . 14
37. RECORDATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
38. AUTHORIZATION OF FINANCIAL INFORMATION. . . . . . . . . . . . . . . . 15
39. HAZARDOUS MATERIALS . . . . . . . . . . . . . . . . . . . . . . . . . 15
40. SCHEDULE OF RENTS . . . . . . . . . . . . . . . . . . . . . . . . . . 17
41. LIMITATION OF LANDLORD'S LIABILITY. . . . . . . . . . . . . . . . . . 17
EXHIBIT A - PREMISES
EXHIBIT B - INITIAL ALTERATIONS/TENANT WORK LETTER
EXHIBIT C - RULES AND REGULATIONS
EXHIBIT D - HAZARDOUS MATERIALS EXHIBIT
