INDUSTRIAL SPACE LEASE (SINGLE TENANT NET)
Exhibit 10.62
File No. __
(SINGLE TENANT NET)
THIS LEASE (the “Lease”) dated November 29, 2005 for reference purposes only, is made
by and between JER Bayside, LLC, a Delaware limited liability company (“Landlord”), and
Asyst Technologies, Inc., a California corporation (“Tenant”), to be effective and binding
upon the parties as of the date the last of the designated signatories to this Lease shall have
executed this Lease (the “Effective Date of this Lease”).
ARTICLE 1
REFERENCES
REFERENCES: All references in this Lease (subject to any further clarifications contained in this
Lease) to the following terms shall have the following meaning or refer to the respective address,
person, date, time period, amount, percentage, calendar year or fiscal year as below set forth:
A. | Tenant’s Address for Notice Prior to March 16, 2006: | Asyst Technologies, Inc. 00000 Xxxx Xxxx Xxxxxxx, XX 00000 Attention: General Counsel with a copy to: |
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Asyst Technologies, Inc. 00000 Xxxx Xxxx Xxxxxxx, XX 00000 Attention: CFO |
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Tenant’s Address for Notices subsequent to March 16, 2006: | Asyst Technologies, Inc. 00000 Xxxxxxx Xxxxxxx Xxxxxxx, XX 00000 Attention: General Counsel with a copy to: |
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Asyst Technologies, Inc. 00000 Xxxxxxx Xxxxxxx Xxxxxxx, XX 00000 Attention: CFO |
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B. | Tenant’s Representative: | Xxxxx Xxxxxxxx, Esq. Vice President, General Counsel |
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Phone Number: | (000) 000-0000 |
C. | Landlord’s Address for Notices: | 000 Xxxx Xxxxxx, 00xx Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 |
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D. | Landlord’s Representative: Phone Number: |
Xxxx Xxxxx (000) 000-0000 |
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E. | Intended Term: | 7 years | ||||
F. | Lease Expiration Date: | March 15, 2013 | ||||
G. | First Month’s Prepaid Rent: | $98,769.90 | ||||
H. | *Tenant’s Security Deposit: | $750,000 letter of credit (months
1 – 14 beginning on the Lease
Commencement Date) Reducing to $500,000 letter of credit (beginning month 15 through the remainder of the Lease Term) * Subject to the provisions of Section 3.7 |
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I. | Late Charge Amount: | 5% of current Monthly Base Rent | ||||
J. | Tenant’s Required Liability Coverage: |
$5,000,000 | ||||
K. | Brokers: | Xxxxxxx Xxxxxxxxx Commercial, Inc. – Tenant | ||||
Cornish & Xxxxx Commercial – Landlord |
L. Property or Project: That certain real property, situated in the City of Fremont, County
of Alameda, State of California, as presently improved with one building together with all
amenities serving the Property or for the benefit of the Property, which real property is shown on
the Site Plan attached hereto as Exhibit “A” and is commonly known as or otherwise
described as follows: 00000 Xxxxxxx Xxxxxxx.
M. Building: That certain Building within the Property in which the Leased Premises are
located, which Building is shown outlined in red on Exhibit “A” hereto.
N. Outside Areas: The “Outside Areas” shall mean all areas within the Property which
are located outside the Building, including without limitation, pedestrian walkways, parking areas,
landscaped areas, open areas and enclosed trash disposal areas.
O. Leased Premises or Premises: All the space which is the Building, consisting of 94,429
square feet of gross leasable area. The Leased Premises are commonly known as or otherwise
described as follows: Building 48.
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P. Base Monthly Rent: The term “Base Monthly Rent” shall mean the following:
Month | Base Monthly Rent | |||
Lease Commencement Date – May 15, 2007 |
$ | 0 | ||
May 16, 2007 – March 15, 2008 |
$ | 98,769.90 | ||
March 16, 2008 – March 15, 2009 |
$ | 103,491.35 | ||
March 16, 2009 – March 15, 2010 |
$ | 108,212.80 | ||
March 16, 2010 - March 15, 2011 |
$ | 112,934.25 | ||
March 16, 2011 - March 15, 2012 |
$ | 117,655.70 | ||
March 16, 2012 - March 15, 2013 |
$ | 122,377.15 |
Q. Permitted Use: The term “Permitted Use” shall mean the following: general office
use, assembly, light manufacturing, product service and warehousing functions, all in accordance
with the “I-R Restricted Industrial” zoning status of the Property.
R. Exhibits: The term “Exhibits” shall mean the Exhibits to this Lease which are
described as follows:
Exhibit “A”
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Site Plan showing the Property and delineating the Building in which the Leased Premises are located. | |
Exhibit “B”
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Floor Plan outlining the Leased Premise | |
Exhibit “C”
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Subordination Agreement | |
Exhibit “D”
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Tenant Improvement Agreement | |
Schedule 1
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Designation of Outside Area “For Lease” Sign Placement | |
Schedule 2
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Personal Property |
ARTICLE 2
LEASED PREMISES, TERM AND POSSESSION
2.1 DEMISE OF LEASED PREMISES: Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord for Tenant’s own use in the conduct of Tenant’s business and not for purposes of
speculating in real estate, for the Lease Term and upon the terms and subject to the conditions of
this Lease, that certain space described in Article 1 as the Leased Premises. Tenant’s lease of the
Leased Premises, together with the appurtenant right to use the Outside Areas as described in
Section 2.2 below, shall be conditioned upon and be subject to the continuing compliance by Tenant
with (i) all the terms and conditions of this Lease, (ii) all Laws governing the use of the Leased
Premises and the Property, (iii) all Private Restrictions, easements and other matters respecting
the use of the Leased Premises and the Property and
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disclosed in that certain Title Report No. NCS-161260-SC dated September 16, 2005 and issued
by First American Title Insurance Company, and (iv) all reasonable rules and regulations from time
to time established by Landlord.
2.2 RIGHT TO USE OUTSIDE AREAS: As an appurtenant right to Tenant’s right to the use and
occupancy of the Leased Premises, Tenant shall have the right to use the Outside Areas in
conjunction with its use of the Leased Premises solely for the purposes for which they were
designed and intended and for no other purposes whatsoever. Tenant’s right to so use the Outside
Areas shall be subject to the limitations on such use as set forth in Article 4 and shall terminate
concurrently with any termination of this Lease.
2.3 LEASE COMMENCEMENT DATE AND LEASE TERM: The term of this Lease shall begin, and the Lease
Commencement Date shall be deemed to have occurred, on the Delivery Date (as set forth in Section
2.4) unless Landlord is unable to deliver the Leased Premises to Tenant on the Delivery Date, in
which case the Lease Commencement Date shall be as determined pursuant to Section 2.4 below (the
“Lease Commencement Date”). Promptly following the Lease Commencement Date, Landlord shall
deliver to Tenant written confirmation thereof (“Commencement Date Confirmation Notice”)
which Tenant shall countersign and return to Landlord within ten (10) days following Tenant’s
receipt of same. In the event Landlord does not receive the Commencement Date Confirmation Notice
countersigned by Tenant within such ten (10) day period, the date set forth in such notice shall be
conclusively deemed the Lease Commencement Date for all purposes under this Lease. The term of the
Lease shall end on the Lease Expiration Date (as set forth in Article 1), irrespective of whatever
date the Lease Commencement Date is determined to be pursuant to the foregoing sentence. Subject to
exercise of the Extension Option pursuant to Section 2.8 hereof, the Lease Term shall be that
period of time commencing on the Lease Commencement Date and ending on the Lease Expiration Date
(the “Lease Term”).
2.4 DELIVERY OF THE LEASED PREMISES: Landlord shall deliver the Leased Premises to Tenant upon
the Effective Date of this Lease (the “Delivery Date”). The Leased Premises shall be
delivered to Tenant broom clean and otherwise in its presently existing condition. If Landlord is
unable to so deliver the Leased Premises to Tenant in the agreed condition on or before the
Delivery Date, for whatever reason, Landlord shall not be in default under this Lease, nor shall
this Lease be void, voidable or cancelable by Tenant until the lapse of thirty (30) days after the
Delivery Date (the “delivery grace period”); however, the Lease Commencement Date shall not be
deemed to have occurred until the Landlord has delivered the Leased Premises to Tenant.
Additionally, the delivery grace period above set forth shall be extended for such number of days
as Landlord may be delayed in delivering the Leased Premises to Tenant by reason of Force Majeure
or the actions of Tenant. If Landlord is unable to deliver the Leased Premises in the agreed
condition to Tenant within the described delivery grace period (including any extensions thereof by
reason of Force Majeure or the actions of Tenant), then Tenant’s sole remedy shall be to cancel and
terminate this Lease within thirty (30) days following the delivery grace period by providing at
least five (5) days prior written notice to Landlord, and in no event shall Landlord be liable in
damages to Tenant for such delay. If Tenant does not deliver to Landlord five (5) days prior
written notice to cancel and terminate this Lease within such thirty (30) day period following the
delivery grace period, Tenant shall have no further right to cancel and terminate this Lease.
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2.5 ACCEPTANCE OF POSSESSION: Tenant acknowledges that it has inspected the Leased Premises
and is willing to accept it in its existing broom-clean condition subject to the Leased Premises
containing at least 2000 amps power (277-480b; 3-phase power) in the main electrical room, and
subject to Landlord removing all paint, vehicles and other personal property prior to the Delivery
Date. Tenant shall confirm to Landlord in writing prior to the Delivery Date that the Leased
Premises contain at least 2000 amps power pursuant to this Section 2.5. Landlord agrees to place
in good working order prior to the Delivery Date all existing plumbing, lighting, heating,
ventilating and air conditioning systems related to the Building, all man doors and roll-up truck
doors serving the Leased Premises, all building systems and site improvements, including fire
sprinklers and elevators, all to the extent that such systems and/or items are not in good
operating condition as of the Delivery Date. In addition, Landlord agrees that to the extent that
such systems and/or items or the Leased Premises are not in compliance with the ADA (as defined in
Section 5.1(C) below) on the Delivery Date, Landlord, at its sole cost and expense, shall be
responsible for making all necessary modifications or alterations to the Leased Premise so that all
such systems and/or items and the Leased Premises shall be in compliance with the ADA on the
Delivery Date or within the delivery grace period.
2.6 SURRENDER OF POSSESSION: Immediately prior to the expiration or upon the sooner
termination of this Lease, Tenant shall remove all of Tenant’s signs from the exterior of the
Building and shall remove all of Tenant’s equipment, trade fixtures, furniture, supplies, wall
decorations and other personal property from the Leased Premises, and shall vacate and surrender
the Leased Premises to Landlord in broom-clean condition. Notwithstanding the foregoing, Tenant
shall have no obligation or liability to remove any and all Tenant Improvements (as defined in the
Tenant Improvement Agreement attached hereto as Exhibit “D”) or any and all Alterations (as
defined in Section 6.1 below) which have been approved in writing by Landlord during the Term and
which, at the time of giving its approval, Landlord does not designate in writing for removal.
Tenant shall repair all damage to the Leased Premises caused by Tenant’s removal of Tenant’s
property and all damage to the exterior of the Building caused by Tenant’s removal of Tenant’s
signs. Tenant shall patch and refinish, to Landlord’s reasonable satisfaction, all penetrations
made by Tenant or its employees to the floor, walls or ceiling of the Leased Premises, whether such
penetrations were made with Landlord’s approval or not. Tenant shall clean, repair or replace all
stained or damaged ceiling tiles, wall coverings and clean the floor coverings to the reasonable
satisfaction of Landlord. Tenant shall replace all burned out light bulbs and damaged light lenses,
and clean all painted walls. Tenant shall retain a mechanical contractor at Tenant’s expense to
inspect all heating, ventilating, and air-conditioning equipment and such mechanical contractor
shall deliver to Landlord a certificate certifying that all such equipment is in good working order
and in good condition and repair, or else Tenant shall pay the cost for such mechanical contractor
to service and restore (or replace as required) said equipment to good condition and repair and
thereafter provide Landlord with written documentation thereof prior to the expiration or sooner
termination of this Lease subject to Section 5.1A below.
Tenant shall repair all damage caused by Tenant to the exterior surface of the Building and
the paved surfaces of the outside areas adjoining the Leased Premises and, where necessary, replace
or resurface same, to the extent such damage is beyond normal wear and tear as determined by
Landlord in its reasonable discretion. Additionally, Tenant shall, prior to the expiration or
sooner termination of this Lease, remove all Alterations constructed or installed by Tenant which
Landlord, at the time of providing its consent to the construction or installation thereof,
requests in writing be so removed by Tenant and Tenant shall repair all damage caused
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by
such removal; provided however, at such time as Landlord provides to Tenant its written approval of
any Alterations or modifications of the Leased Premises pursuant to Section 6.1, Landlord will
indicate to Tenant whether such Alterations will be required to be removed upon the expiration or
sooner termination of this Lease. If the Leased Premises are not surrendered to Landlord in the
condition required by this Article 2 at the expiration or sooner termination of this Lease,
Landlord may, at Tenant’s expense, so remove Tenant’s signs, property and/or Alterations not so
removed and make such repairs and replacements not so made or hire, at Tenant’s expense,
independent contractors to perform such work. Tenant shall be liable to Landlord for all reasonable
costs incurred by Landlord in returning the Leased Premises to the required condition, plus
interest on all costs incurred from the date paid by Landlord at the then maximum rate of interest
not prohibited by Law until paid, payable by Tenant to Landlord within ten (10) days after receipt
of a statement therefore from Landlord. Tenant shall indemnify Landlord against loss or liability
resulting from delay by Tenant in so surrendering the Leased Premises, including, without
limitation, any claims made by any succeeding tenant or any losses to Landlord due to lost
opportunities to lease to succeeding tenants. Landlord shall, beginning 100 days before expiration
of this Lease, work with Tenant in good faith to develop a mutually agreeable list of Tenant’s
surrender responsibilities.
2.7 EARLY OCCUPANCY: If Tenant enters into (or permits its contractors to enter into) the
Leased Premises prior to the date Landlord shall deliver the Leased Premises to Tenant in the
agreed condition required by Section 2.4, unless otherwise agreed to in writing by Landlord, Tenant
shall be obligated to perform all its obligations under this Lease from that sooner date (which
date shall be deemed to be the Lease Commencement Date), excluding only the obligation to pay Base
Monthly Rent and Additional Rent, if any.
2.8 OPTION TO EXTEND: If (i) Tenant has not defaulted beyond any applicable cure period
during the one (1) year period preceding the date that Tenant exercises its Extension Option (as
defined below), and (ii) at the time Tenant exercises the Extension Option, Tenant is not in
default with respect to any monetary obligation due under this Lease, and (iii) Tenant has not
defaulted beyond the applicable cure period during the period beginning on the date that Tenant
exercises its Extension Option and continuing until the day which precedes the commencement of the
Extended Term, then Tenant shall have one (1) option (the “Extension Option”) to extend the
initial Lease Term for an additional period of five (5) years (the “Extended Term”). To
exercise Tenant’s option with respect to the Extended Term, Tenant shall give written notice to
Landlord not more than nine (9) months and not less than six (6) months prior to the expiration of
the initial Lease Term (“Election Notice”).
A. If Tenant properly and timely exercises Tenant’s Extension Option pursuant to this Section
2.8, the Extended Term shall be upon all of the same terms, covenants and conditions of this Lease;
provided, however, that the Base Monthly Rent applicable to the Leased Premises for the Extended
Term shall be one hundred percent (100%) of the “Fair Market Rent” for space comparable to the
Leased Premises as of the commencement of the Extended Term. “Fair Market Rent” shall mean
the annual rental being charged for space comparable to the Leased Premises in buildings comparable
to the Building located in the Cities of Fremont and Milpitas, California, taking into account
location, condition, existing improvements to the space, any improvements to be made to the Leased
Premises in connection with the Extended Term, and adjustments for leasing commissions and tenant
improvement allowances. Tenant shall pay all leasing commissions and consulting fees payable in
connection with such extension, unless such
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leasing
commissions or consulting fees arise solely out of a contractual relationship between Landlord
and a broker or consultant.
B. Within forty-five (45) days after the date of the Election Notice, Landlord and Tenant
shall negotiate in good faith in an attempt to determine Fair Market Rent for the Extended Term.
If within said forty-five (45) day period, Landlord and Tenant are unable to agree on the Fair
Market Rent for the Extended Term, then the Fair Market Rent shall be determined as provided in
Section 2.8(C) below.
C. If it becomes necessary to determine the Fair Market Rent for the Leased Premises by
appraisal, the real estate appraiser(s) indicated in this Section 2.8(C), shall be members of the
American Institute of Real Estate Appraisers, shall have at least five (5) years experience
appraising general office and industrial space located in the vicinity of the Premises and shall be
appointed and shall act in accordance with the following procedures:
(1) If the parties are unable to agree on the Fair Market Rent within the allowed time, either
party may demand an appraisal by giving written notice to the other party, which demand, to be
effective, must state the name, address and qualifications of an appraiser selected by the party
demanding the appraisal (“Notifying Party”). Within ten (10) days following the Notifying
Party’s appraisal demand, the other party (“Non-Notifying Party”) shall either approve the
appraiser selected by the Notifying Party or select a second properly qualified appraiser by giving
written notice of the name, address and qualification of said appraiser to the Notifying Party. If
the Non-Notifying Party fails to select an appraiser within the ten (10) day period, the appraiser
selected by the Notifying Party shall be deemed selected by both parties and no other appraiser
shall be selected. If two (2) appraisers are selected, they shall select a third appropriately
qualified appraiser within ten (10) days of selection of the second appraiser. If the two (2)
appraisers fail to select a third qualified appraiser, the third appraiser shall be appointed by
the then presiding judge of the county where the Leased Premises are located upon application by
either party.
(2) If only one (1) appraiser is selected, that appraiser shall notify the parties in simple
letter form of its determination of the Fair Market Rent for the Premises within fifteen (15) days
following his or her selection, which appraisal shall be conclusively determinative and binding on
the parties as the appraised Fair Market Rent.
(3) If multiple appraisers are selected, the appraisers shall meet not later than ten (10)
days following the selection of the last appraiser. At such meeting, the appraisers shall attempt
to determine the Fair Market Rent for the Premises as of the commencement date of the Extended Term
by the agreement of at least two (2) of the appraisers.
(4) If two (2) or more of the appraisers agree on the Fair Market Rent for the Leased Premises
at the initial meeting, such agreement shall be determinative and binding upon the parties hereto
and the agreeing appraisers shall forthwith notify both Landlord and Tenant of the amount set by
such agreement. If multiple appraisers are selected and two (2) appraisers are unable to agree on
the Fair Market Rent for the Leased Premises, each appraiser shall submit to Landlord and Tenant
his or her respective independent appraisal of the Fair Market Rent for the Leased Premises, in
simple letter form, within fifteen (15) days following appointment of the final appraiser. The
parties shall then determine the Fair Market Rent for the Leased Premises by
averaging the appraisals; provided that any high or low appraisal, differing from the middle
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appraisal by more than ten percent (10%) of the middle appraisal, shall be disregarded in
calculating the average.
(5) If only one (1) appraiser is selected, then each party shall pay one-half (1/2) of the
fees and expenses of that appraiser. If three (3) appraisers are selected, each party shall bear
the fees and expenses of the appraiser it selects and one-half (1/2) of the fees and expenses of
the third appraiser.
D. The Extension Option shall be personal to Asyst Technologies, Inc., a California
corporation, or a Tenant Affiliate or Tenant Successor (as defined in Section 7.10), and shall
terminate upon any assignment of this Lease or any sublease of the Leased Premises.
E. Immediately after the Fair Market Rent has been determined, the parties shall enter into an
amendment to this Lease setting forth the Base Monthly Rent for the Extended Term and the new
expiration date of the Lease Term. All other terms and conditions of the Lease shall remain in
full force and effect and shall apply during the Extended Term, except that: (i) there shall be no
further option to extend the Lease Term beyond a date five (5) years after the expiration of the
initial Lease Term, (ii) there shall be no rent concessions, and (iii) there shall be no
construction allowance, tenant improvement allowance or similar provisions.
ARTICLE 3
RENT, LATE CHARGES AND SECURITY DEPOSITS
3.1 BASE MONTHLY RENT: Commencing on the Lease Commencement Date (as determined pursuant to
Section 2.3 above) and continuing throughout the Lease Term, Tenant shall pay to Landlord, without
prior demand therefore or offset, in advance on the first day of each calendar month, as base
monthly rent, the amount set forth as “Base Monthly Rent” in Article 1 (the “Base Monthly
Rent”).
3.2 ADDITIONAL RENT: Subject to the provisions of Section 5.2 below, commencing on the first
day of the seventh (7th) month following the Lease Commencement Date (as determined pursuant to
Section 2.3 above) and continuing throughout the Lease Term, in addition to the Base Monthly Rent,
Tenant shall pay to Landlord without offset as additional rent (the “Additional Rent”) the
following amounts:
A. An amount equal to all Property Operating Expenses (as defined in Article 13) incurred by
Landlord (calculated as if Rent had been paid from and after the Delivery Date at the rate
applicable when Tenant first pays rent hereunder not counting any free rent period); provided
however, in no event shall the Property Maintenance Costs increase by more than four percent (4%)
in any calendar year (the “Maintenance Costs Cap”), which shall be cumulative and
compounding. Payment shall be made by whichever of the following methods (or combination of
methods) is (are) from time to time designated by Landlord:
(1) Landlord may xxxx to Tenant, on a periodic basis not more frequently than monthly, the
amount of such expenses (or group of expenses) as paid or incurred by Landlord, and Tenant shall
pay to Landlord the amount of such expenses within thirty (30) days after receipt of a written xxxx
therefore from Landlord; and/or
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(2) Landlord may deliver to Tenant Landlord’s reasonable estimate of any given expense (such
as Landlord’s Insurance Costs or Real Property Taxes), or group of expenses, which it anticipates
will be paid or incurred for the ensuing calendar or fiscal year, as Landlord may determine, and
Tenant shall pay to Landlord an amount equal to the estimated amount of such expenses for such year
in equal monthly installments during such year with the installments of Base Monthly Rent.
B. Landlord’s share of the consideration received by Tenant upon certain assignments and
sublettings as required by Article 7;
C. Any legal fees and costs that Tenant is obligated to pay or reimburse to Landlord pursuant
to Article 13; and
D. Any other charges or reimbursements due Landlord from Tenant pursuant to the terms of this
Lease other than late charges and interest on defaulted rent.
3.3 YEAR-END ADJUSTMENTS AND REVIEW RIGHTS: If Landlord shall have elected to xxxx Tenant for
the Property Operating Expenses (or any group of such expenses) on an estimated basis in accordance
with the provisions of Section 3.2(A)(2) above, Landlord shall furnish to Tenant within three (3)
months following the end of the applicable calendar or fiscal year, as the case may be, a statement
setting forth (i) the amount of such expenses paid or incurred during the just ended calendar or
fiscal year, as appropriate, and (ii) the amount that Tenant has paid to Landlord for credit
against such expenses for such period. If Tenant shall have paid more than its obligation for such
expenses for the stated period, Landlord shall, at its election, either (i) credit the amount of
such overpayment toward the next ensuing payment or payments of Additional Rent that would
otherwise be due or (ii) refund in cash to Tenant the amount of such overpayment within thirty (30)
days following Landlord’s delivery of such year-end statement. If such year-end statement shall
show that Tenant did not pay its obligation for such expenses in full, then Tenant shall pay to
Landlord the amount of such underpayment within thirty (30) days from Landlord’s billing of same to
Tenant. The provisions of this Article 3 shall survive the expiration or sooner termination of this
Lease.
Landlord agrees to maintain accurate books and records of the Property Operating Expenses for
each calendar or fiscal year or partial year throughout the Term and for a period of two (2) years
thereafter. Tenant shall have sixty (60) days after receipt of any statement for Property
Operating Expenses within which to raise any questions or objections to the items or calculations
contained in such statement, which questions or objections must be delivered to Landlord in writing
and, as to any objections, must set out with particularity the nature of such objections. If
Tenant requests, within such sixty (60) days following receipt of a statement, to review Landlord’s
records (limited to such records relevant to the information in the statement), Landlord shall
permit Tenant (through a reputable and duly licensed certified public accounting firm reasonably
approved by Landlord) to review such records in the offices of Landlord or Landlord’s property
manager, during normal business hours, within thirty (30) days after such request. Tenant shall
provide Landlord with a written report of the findings of Tenant’s review within thirty (30) days
after such review. If, following Tenant’s review, Tenant continues to dispute any items or any
calculations contained in any statement, Tenant shall continue to pay all amounts due hereunder,
without any deduction or offset whatsoever, but nothing in this Lease
shall prohibit or impair Tenant’s right to bring suit against Landlord to resolve any of
Tenant’s claims against Landlord arising out of such a dispute.
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3.4 LATE CHARGE AND INTEREST ON RENT IN DEFAULT: Tenant acknowledges that the late payment by
Tenant of any monthly installment of Base Monthly Rent or any Additional Rent will cause Landlord
to incur certain costs and expenses not contemplated under this Lease, the exact amounts of which
are extremely difficult or impractical to fix. Such costs and expenses will include, without
limitation, administration and collection costs and processing and accounting expenses. Therefore,
if any installment of Base Monthly Rent is not received by Landlord from Tenant within six (6)
calendar days after the same becomes due, Tenant shall immediately pay to Landlord a late charge in
an amount equal to the amount set forth in Article 1 as the “Late Charge Amount”, and if
any Additional Rent is not received by Landlord within six (6) calendar days after same becomes
due, Tenant shall immediately pay to Landlord a late charge in an amount equal to five percent (5%)
of the Additional Rent not so paid. Landlord and Tenant agree that this late charge represents a
reasonable estimate of such costs and expenses and is fair compensation to Landlord for the
anticipated loss Landlord would suffer by reason of Tenant’s failure to make timely payment.
Notwithstanding the foregoing, not more than one (1) time in any twelve (12) month period, Landlord
shall provide Tenant a three (3) day written notice to pay any late payment of Base Monthly Rent or
Additional Rent before any late charge shall accrue therefor. In no event shall this provision for
a late charge be deemed to grant to Tenant a grace period or extension of time within which to pay
any rental installment or prevent Landlord from exercising any right or remedy available to
Landlord upon Tenant’s failure to pay each rental installment due under this Lease when due,
including the right to terminate this Lease. If any rent remains delinquent for a period in excess
of five (5) calendar days, then, in addition to such late charge, Tenant shall pay to Landlord
interest on any rent that is not so paid from said fifth (5th) day at the then maximum
rate of interest not prohibited or made usurious by Law until paid.
3.5 PAYMENT OF RENT: All rent shall be paid in lawful money of the United States, without any
abatement, reduction or offset for any reason whatsoever, to Landlord at such address as Landlord
may designate from time to time. Tenant’s obligation to pay Base Monthly Rent and all Additional
Rent shall be appropriately prorated at the commencement and expiration of the Lease Term. The
failure by Tenant to pay any Additional Rent as required pursuant to this Lease when due shall be
treated the same as a failure by Tenant to pay Base Monthly Rent when due, and Landlord shall have
the same rights and remedies against Tenant as Landlord would have if Tenant failed to pay the Base
Monthly Rent when due.
3.6 PREPAID RENT: Concurrent with the execution of this Lease, Tenant shall pay to Landlord
the amount set forth in Article 1 as “First Month’s Prepaid Rent” as prepayment of rent for
credit against the first installment of Base Monthly Rent due hereunder.
3.7 SECURITY DEPOSIT: Tenant shall deposit with Landlord upon the execution of this Lease by
Landlord and Tenant, an irrevocable standby letter of credit (the “Letter of Credit”) in
the amount set forth in the Basic Lease Information as the “Security Deposit” under this
Lease. If Tenant has not defaulted beyond any applicable cure period during the one (1) year
period preceding the first day of the fifteenth (15th) month following the Lease Commencement Date,
then commencing on the first day of the fifteenth (15th) month following the Lease Commencement
Date, the Security Deposit shall be reduced to Five Hundred Thousand Dollars
($500,000). The Security Deposit shall be held by Landlord as security for the performance by
Tenant of all its obligations under this Lease. If Tenant fails to pay any Rent due hereunder, or
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otherwise commits a default with respect to any provision of this Lease, Landlord may use, apply or
retain all or any portion of the Security Deposit for the payment of any such Rent or for the
payment of any other amounts expended or incurred by Landlord by reason of Tenant’s default, or to
compensate Landlord for any loss or damage which Landlord may incur thereby (and in this regard
Tenant hereby waives the provisions of California Civil Code Section 1950.7 and any similar or
successor statute providing that Landlord may claim from a security deposit only those sums
reasonably necessary to remedy defaults in the payment of Rent, to repair damage caused by Tenant,
or to clean the Premises, it being agreed that Landlord may, in addition, claim those sums
reasonably necessary to compensate Landlord for any other loss or damage, foreseeable or
unforeseeable, caused by the act or omission of Tenant or any officer, employee, agent or invitee
of Tenant). Exercise by Landlord of its rights hereunder shall not constitute a waiver of, or
relieve Tenant from any liability for, any default. If any portion of the Letter of Credit posted
as the Security Deposit is drawn upon by Landlord for such purposes, Tenant shall, within ten (10)
days after written demand therefore, deposit a replacement Letter of Credit with Landlord in the
amount of the original Letter of Credit and within ten (10) days after Landlord’s receipt of such
replacement Letter of Credit, Landlord shall return the previous Letter of Credit to Tenant to the
extent the same has not been drawn upon. If Tenant performs all of Tenant’s obligations hereunder,
the Letter of Credit shall be returned to Tenant (or, at Landlord’s option, to the last assignee,
if any, of Tenant’s interest under this Lease) within thirty (30) days after the later of (i) the
date of expiration or earlier termination of this Lease, or (ii) vacation of the Premises by Tenant
if the Premises has been left in the condition specified by this Lease. Upon termination of the
original Landlord’s (or any successor owner’s) interest in the Premises, the original Landlord (or
such successor) shall be released from further liability with respect to the Security Deposit upon
the original Landlord’s (or such successor’s) delivery of the Letter of Credit to the successor
landlord and compliance with California Civil Code Section 1950.7(d), or successor statute.
A. The Letter of Credit deposited as a Security Deposit shall be issued by a money-center bank
(a bank which accepts deposits, which maintains accounts, which has a local Bay Area office that
will negotiate a letter of credit and whose deposits are insured by the FDIC) whose financial
strength shall be sufficient to meet liquidity demands with respect to issued letters of credit and
which is otherwise reasonably acceptable to Landlord. The Letter of Credit shall be issued for a
term of at least twelve (12) months and shall be in a form and with such content reasonably
acceptable to Landlord. The Letter of Credit shall specify that the issuer thereof shall notify
the beneficiary of the Letter of Credit in writing at least sixty (60) days in advance of the
expiration date of such Letter of Credit if the Letter of Credit shall not be renewed as of such
expiration date. Tenant shall either replace the expiring Letter of Credit with another Letter of
Credit in an amount equal to the original Letter of Credit or renew the expiring Letter of Credit,
in any event no later than thirty (30) days prior to the expiration of the term of the Letter of
Credit then in effect. If Tenant fails to deposit a replacement Letter of Credit or renew the
expiring Letter of Credit, Landlord shall have the right immediately to draw upon the expiring
Letter of Credit for the full amount thereof and hold the funds drawn as the Security Deposit. Any
Letter of Credit deposited with Landlord during the final lease year of the Term must have an
expiry date no earlier than the date which is thirty (30) days after the Lease Expiration Date.
If, at any time during the Lease Term, Landlord notifies Tenant in writing that the bank which
issued the Letter of Credit has become financially unacceptable (e.g., the bank is under
investigation by
governmental authorities, the bank no longer has the financial strength equivalent to the
current financial strength of Comerica or has filed bankruptcy or reorganization
11
proceedings), then
Tenant shall have thirty (30) days to provide Landlord with a substitute Letter of Credit complying
with all of the requirements hereof. If Tenant does not so provide Landlord with a substitute
Letter of Credit within such time period, then Landlord shall have the right to draw upon the
current Letter of Credit and hold the funds drawn as the Security Deposit. The premium or purchase
price of, or any other bank fees (including transfer or assignment fees) associated with, such
Letter of Credit shall be paid by Tenant. The Letter of Credit shall be transferable (and must
permit multiple transfers), irrevocable and unconditional, so that Landlord, or its successor(s) in
interest, may at any time draw on the Letter of Credit against sight drafts presented by Landlord,
accompanied by Landlord’s statement, made under penalty of perjury, that said drawing is in
accordance with the terms and conditions of this Lease; no other document or certification from
Landlord shall be required to negotiate the Letter of Credit and the Landlord may draw on any
portion of the then uncalled upon amount thereof without regard to and without the issuing bank
inquiring as to the right or lack of right of the holder of said Letter of Credit to effect such
draws or the existence or lack of existence of any defenses by Tenant with respect thereto. The
Letter of Credit shall not be mortgaged, assigned or encumbered in any manner whatsoever by Tenant
without the prior written consent of Landlord. The use, application or retention of the Letter of
Credit, or any portion thereof, by Landlord shall not prevent Landlord from exercising any other
right or remedy provided by this Lease or by law, it being intended that Landlord shall not first
be required to proceed against the Letter of Credit, and such use, application or retention shall
not operate as a limitation on any recovery to which Landlord may otherwise be entitled.
B. Tenant acknowledges and agrees that the Letter of Credit constitutes a separate and
independent contract between Landlord and the issuing bank, that Tenant is not a third party
beneficiary of such contract, and that Landlord’s claim under the Letter of Credit for the full
amount due and owing thereunder shall not be, in any way, restricted, limited, altered or impaired
by virtue of any provision of the Bankruptcy Code, including, but not limited to, Section 502(b)(6)
of the Bankruptcy Code.
C. The Letter of Credit shall be transferable to any of the following parties: (i) any secured
or unsecured lender of Landlord, (ii) any assignee, successor, transferee or other purchaser of all
or any portion of the Building, or any interest in the Building, (iii) any partner, shareholder,
member or other direct or indirect beneficial owner in Landlord (to the extent of their interest in
the Lease). Further, in the event of any sale, assignment or transfer by the Landlord of its
interest in the Premises or the Lease, Landlord shall have the right to assign or transfer the
Letter of Credit to its grantee, assignee or transferee; and in the event of any sale, assignment
or transfer, the landlord so assigning or transferring the Letter of Credit shall have no liability
to Tenant for the return of the Letter of Credit, and Tenant shall look solely to such grantee,
assignee or transferee for such return, so long as such grantee, assignee or transferee assumes in
writing all of Landlord’s obligations with respect to the Letter of Credit. The terms of the
Letter of Credit shall permit multiple transfers of the Letter of Credit. Tenant shall use its
best efforts to cooperate with Landlord and the bank to effect the transfer(s) of the Letter of
Credit and Tenant shall be responsible for all costs of the bank associated therewith.
ARTICLE 4
USE OF LEASED PREMISES AND OUTSIDE AREA
USE OF LEASED PREMISES AND OUTSIDE AREA
4.1 PERMITTED USE: Tenant shall be entitled to use the Leased Premises solely for the
“Permitted Use” as set forth in Article 1 and for no other purpose whatsoever. Tenant shall
12
have the right to use the Outside Areas in conjunction with its Permitted Use of the Leased
Premises solely for the purposes for which they were designed and intended and for no other purpose
whatsoever.
4.2 GENERAL LIMITATIONS ON USE: Tenant shall not do or permit anything to be done in or about
the Leased Premises, the Building, the Outside Areas or the Property which does or could (i)
jeopardize the structural integrity of the Building or (ii) cause damage to any part of the Leased
Premises, the Building, the Outside Areas or the Property. Tenant shall not operate any equipment
within the Leased Premises which does or could (i) injure, vibrate or shake the Leased Premises or
the Building, (ii) damage, overload, corrode, or impair the efficient operation of any electrical,
plumbing, sewer, heating, ventilating or air conditioning systems within or servicing the Leased
Premises or the Building, or (iii) damage or impair the efficient operation of the sprinkler system
(if any) within or servicing the Leased Premises or the Building. Tenant shall not install any
equipment or antennas on or make any penetrations of the exterior walls or roof of the Building.
Tenant shall not affix any equipment to or make any penetrations or cuts in the floor or ceiling of
the Leased Premises, except for bolts, tie-downs or similar attachment devices so long as the use
thereof does not affect the structural components or integrity of the Building, including without
limitation, the structural elements and integrity of the floors and foundation of the Building.
Tenant shall not place any loads upon the floors, walls, ceiling or roof systems which could
endanger the structural integrity of the Building or damage its floors, foundations or supporting
structural components. Tenant shall not place any explosive, flammable or harmful fluids or other
waste materials including Hazardous Materials in the drainage systems of the Leased Premises, the
Building, the Outside Areas or the Property. Tenant shall not drain or discharge any fluids in the
landscaped areas or across the paved areas of the Property. Tenant shall not commit nor permit to
be committed any waste in or about the Leased Premises, the Building, the Outside Areas or the
Property. Notwithstanding anything to the contrary contained herein, Tenant shall at all times
comply, at its sole cost and expense, with the terms and conditions of the Private Restrictions
relating to the use and occupancy of the Leased Premises, the Building, Outside Areas and the
Property.
4.3 NOISE AND EMISSIONS: All noise generated by Tenant in its use of the Leased Premises shall
be confined or muffled so that it does not interfere with the businesses of or annoy the occupants
and/or users of adjacent properties. All dust, fumes, odors and other emissions generated by
Tenant’s use of the Leased Premises shall be sufficiently dissipated in accordance with sound
environmental practices and exhausted from the Leased Premises in such a manner so as not to
interfere with the businesses of or annoy the occupants and/or users of adjacent properties, or
cause any damage to the Leased Premises, the Building, the Outside Areas or the Property or any
component part thereof or the property of adjacent property owners.
4.4 TRASH DISPOSAL: Tenant shall provide trash bins (or other adequate garbage disposal
facilities) within the trash enclosure areas provided or permitted by Landlord outside the Leased
Premises sufficient for the interim disposal of all of its trash, garbage and waste. All such
trash, garbage and waste temporarily stored in such areas shall be stored in such a manner so that
it is not visible from outside of such areas, and Tenant shall cause such trash, garbage and
waste to be regularly removed from the Property at Tenant’s sole cost. Tenant shall at all times
keep the Leased Premises, the Building, the Outside Areas and the Property in a clean, safe and
neat condition free and clear of all trash, garbage, waste and/or boxes, pallets and containers
containing same at all times.
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4.5 PARKING: Tenant, its employees and invitees shall have the right at all times to use the
331 parking spaces available for use by Tenant in the Outside Areas. Tenant may designate up to 10
spaces for use exclusively by Tenant or Tenant’s visitors, which parking spaces shall be located in
the closest proximity to the main entrance to the Leased Premises (the “Visitor Spaces”). Tenant
shall not, at any time, park or permit to be parked any recreational vehicles, inoperative vehicles
or equipment in the Outside Areas or on any portion of the Property. Tenant agrees to assume
responsibility for compliance by its employees and invitees with the parking provisions contained
herein.
4.6 SIGNS: Other than monument, building signs and business identification signs which are
first approved by Landlord in writing, which approval shall not be unreasonably withheld, Tenant
shall have the exclusive right to place or install on or within any portion of the Leased Premises,
the exterior of the Building, the Outside Areas or the Property any sign, advertisement, banner,
placard, or picture which may be visible from the exterior of the Leased Premises. All required
governmental approvals shall be obtained by Tenant (at it’s sole cost and expense) in connection
with any monument or sign placed or installed on the Property. Landlord hereby agrees to reasonably
cooperate with Tenant in securing any such required governmental approvals; provided however,
Landlord shall not be required to pay any amount in connection with obtaining such approvals. Any
monument or sign installed by Tenant must at all times comply with all Laws and the Private
Restrictions and other reasonable requirements of Landlord. Tenant shall remove all of Tenant’s
monuments and signs, repair any damage caused thereby, and restore the surface upon which the
monument or sign was affixed to its original condition, all to Landlord’s reasonable satisfaction,
upon the termination of this Lease. Tenant shall have a right to place or install signs next to
the Visitor Spaces indicating that such Visitor Spaces are designated for Tenant’s visitor parking.
Such signs shall comply with each of the provisions of this Section 4.6.
4.7 COMPLIANCE WITH LAWS AND PRIVATE RESTRICTIONS: Tenant shall abide by and shall promptly
observe and comply with, at its sole cost and expense, all Laws and Private Restrictions respecting
the use and occupancy of the Leased Premises, the Building, the Outside Areas or the Property
including, without limitation, all Laws governing the use and/or disposal of hazardous materials,
and shall defend with competent counsel, indemnify and hold Landlord harmless from any claims,
damages or liability resulting from Tenant’s failure to do so. The indemnity provision of this
Article 4 shall survive the expiration or sooner termination of this Lease, with respect to any
activities of Tenant occurring on or about the Property from and after the Delivery Date.
4.8 COMPLIANCE WITH INSURANCE REQUIREMENTS: With respect to any insurance policies required or
permitted to be carried by Landlord in accordance with the provisions of this Lease, Tenant shall
not conduct (or permit any other person to conduct) any activities nor keep, store or use (or allow
any other person to keep, store or use) any item or thing within the Leased Premises, the Building,
the Outside Areas or the Property which (i) is
prohibited under the terms of any of such policies, (ii) could result in the termination of
the coverage afforded under any of such policies, (iii) could give to the insurance carrier the
right to cancel any of such policies, or (iv) could cause an increase in the rates (over standard
rates) charged for the coverage afforded under any of such policies. Tenant shall comply with all
requirements of any insurance company, insurance underwriter, or Board of Fire Underwriters
14
which
are necessary to maintain, at standard rates, the insurance coverages carried by either Landlord or
Tenant pursuant to this Lease.
4.9 LANDLORD’S RIGHT TO ENTER: Landlord and its agents shall have the right to enter the
Leased Premises during normal business hours after giving Tenant reasonable notice and subject to
Tenant’s reasonable security measures for the purpose of (i) inspecting the same; (ii) showing the
Leased Premises to prospective purchasers, mortgagees or tenants; (iii) making necessary
alterations, additions or repairs; and (iv) performing any of Tenant’s obligations when Tenant has
failed to do so. Landlord shall have the right to enter the Leased Premises during normal business
hours (or as otherwise agreed), subject to Tenant’s reasonable security measures, for purposes of
supplying any maintenance or services agreed to be supplied by Landlord. Landlord shall have the
right to enter the Outside Areas during normal business hours for purposes of (i) inspecting the
exterior of the Building and the Outside Areas, (ii) posting notices of non-responsibility, (iii)
supplying any services to be provided by Landlord, and (iv) provided Tenant (or any Tenant
Affiliate or Tenant Successor) has not exercised the Extension Option, placing “For Lease” signs in
the Outside Areas designated on the attached Schedule 1 within the last six (6) months of
the Term. Any entry into the Leased Premises or the Outside Areas obtained by Landlord in
accordance with this Article 4 shall not under any circumstances be construed or deemed to be a
forcible or unlawful entry into, or a detainer of, the Leased Premises, or an eviction, actual or
constructive of Tenant from the Leased Premises or any portion thereof.
4.10 Intentionally Deleted.
4.11 RULES AND REGULATIONS: Landlord shall have the right from time to time to establish
reasonable rules and regulations and/or amendments or additions thereto resulting from the use of
the Leased Premises and the Outside Areas for the care and orderly management of the Property. Upon
delivery to Tenant of a copy of such rules and regulations or any amendments or additions thereto,
Tenant shall comply with such rules and regulations. A violation by Tenant of any of such rules and
regulations shall constitute a default by Tenant under this Lease. If there is a conflict between
the rules and regulations and any of the provisions of this Lease, the provisions of this Lease
shall prevail. Landlord shall not be responsible or liable to Tenant for the violation of such
rules and regulations by any other tenant of the Property.
4.12 ENVIRONMENTAL PROTECTION: Landlord may voluntarily cooperate in a reasonable manner with
the efforts of all governmental agencies in reducing actual or potential environmental damage.
Tenant shall not be entitled to terminate this Lease or to any reduction in or abatement of rent by
reason of such compliance or cooperation. Tenant agrees at all times to cooperate fully with
Landlord and to abide by all rules and regulations and requirements which Landlord may reasonably
prescribe in order to comply with the requirements and recommendations of governmental agencies
regulating, or otherwise involved in, the protection of the environment.
4.13 OUTSIDE AREAS: Tenant, in its use of the Outside Areas, shall at all times keep the
Outside Areas in a safe condition free and clear of all debris and trash (except within existing
enclosed trash areas). If unauthorized persons are using any of the Outside Areas by reason of, or
under claim of, the express or implied authority or consent of Tenant, then Tenant, upon demand of
Landlord, shall restrain, to the fullest extent then allowed by Law, such unauthorized use
(including, without limitation any unauthorized use pursuant to the terms of the Private
Restrictions), and shall initiate such appropriate proceedings as may be required to so restrain
15
such use. No tanks or fuel containers whether above or below ground level, or inoperable vehicles
shall be stored upon or permitted to remain outside the Leased Premises except as approved by the
applicable governmental authority and in fully fenced and screened areas outside the Building which
have been designed for such purpose and have been approved in writing by Landlord for such use by
Tenant. Without limiting the foregoing, Tenant’s use of the Outside Areas shall at all times
comply with the Private Restrictions relating to the use and occupancy of such Outside Areas.
4.14 HAZARDOUS MATERIALS: Landlord and Tenant agree as follows with respect to the existence
or use of Hazardous Materials on the Property:
A. Any handling, transportation, storage, treatment, disposal or use of Hazardous Materials by
Tenant, Tenant’s agents, or any other party after the Effective Date of this Lease in or about the
Property shall strictly comply with all applicable Hazardous Materials Laws. Tenant shall
indemnify, defend upon demand with counsel reasonably acceptable to Landlord, and hold harmless
Landlord from and against any and all liabilities, losses, claims, damages, lost profits,
consequential damages, interest, penalties, fines, court costs, remediation costs, investigation
costs, and other expenses which result from or arise in any manner whatsoever out of the use,
storage, treatment, transportation, release, or disposal of Hazardous Materials on or about the
Property by Tenant, Tenant’s agents, permitees, or invitees after the Effective Date. Tenant shall
not be responsible for any Hazardous Materials handling, transportation, storage, treatment,
disposal or use on or about the Property prior to the Effective Date.
B. If the presence of Hazardous Materials on the Property caused or permitted by Tenant,
Tenant’s agents, permitees, or invitees after the Effective Date of this Lease results in
contamination or deterioration of water or soil on any other part of the Property, then Tenant
shall promptly take any and all action necessary to investigate and remediate such contamination.
Tenant shall further be solely responsible for, and shall defend, indemnify and hold Landlord and
its agents harmless from and against, all claims, costs and liabilities, including attorney’s fees
and costs, arising out of or in connection with any investigation and remediation (including
investigative analysis, removal, cleanup, and/or restoration work) resulting from the presence of
Hazardous Materials on the Property caused or permitted by Tenant, Tenant’s agents, permitees,
invitees or assigns, which may be required hereunder to return the Leased Premises, Building,
Outside Areas, and/or Property and any other property of whatever nature to their condition
existing prior to the appearance of such Hazardous Materials.
C. Landlord and Tenant shall each give written notice to the other as soon as reasonably
practicable of (i) any communication received from any governmental authority concerning Hazardous
Materials which relates to the Property, and (ii) any contamination of the Property by Hazardous
Materials which constitutes a violation of any Hazardous Materials Law. Tenant acknowledges that
Landlord, as the owner of the Property, at Landlord’s election, shall have the
sole right at Tenant’s expense to negotiate, defend, approve, and/or appeal any action taken
or order issued with regard to Hazardous Materials by any applicable governmental authority. Tenant
may use small quantities of household chemicals such as adhesives, lubricants, and cleaning fluids
in order to conduct its business at the Leased Premises and such other Hazardous Materials as are
necessary to the operation of Tenant’s business of which Landlord receives notice prior to such
Hazardous Materials being brought onto the Property (or any portion thereof) and which Landlord
consents in writing may be brought onto the Property. Landlord’s consent shall in no way relieve
Tenant from any of its obligations as contained herein; provided,
16
however, that if Landlord shall
consent in writing to Tenant bringing certain Hazardous Materials onto the Property, Tenant shall
not subsequently be required to obtain Landlord’s written consent to bring the same Hazardous
Materials on the Property unless there is a material change in any matter relating to such
Hazardous Materials, including, without limitation, a material change in the quantity thereof or a
material change in the use thereof, from the time that Landlord granted its initial approval
thereof. Tenant shall notify Landlord in writing at least ten (10) days prior to the first
appearance of any Hazardous Material on the Leased Premises, Building, Outside Areas, and/or
Property. Tenant shall provide Landlord with a list of all Hazardous Materials and the quantities
of each Hazardous Material to be stored on any portion of the Property, and upon Landlord’s request
Tenant shall provide Landlord with copies of any and all Hazardous Materials Management Plans,
Material Safety Data Sheets, Hazardous Waste Manifests, and other documentation maintained or
received by Tenant pertaining to the Hazardous Materials used, stored, or transported or to be
used, stored, or transported on any portion of the Property. At any time during the Lease Term,
Tenant shall, within five (5) days after written request therefor received from Landlord, disclose
in writing all Hazardous Materials that are being used by Tenant on the Property (or have been used
on the Property), the nature of such use, and the manner of storage and disposal.
D. Landlord may cause testing xxxxx to be installed on the Property, and may cause the ground
water to be tested to detect the presence of Hazardous Material by the use of such tests as are
then customarily used for such purposes. If Tenant so requests, Landlord shall supply Tenant with
copies of such test results. The cost of such tests and of the installation, maintenance, repair
and replacement of such xxxxx shall be paid by Tenant if such tests disclose the existence of facts
which give rise to liability of Tenant pursuant to its indemnity given in A and or B above.
Landlord may retain consultants to inspect the Property, conduct periodic environmental audits, and
review any information provided by Tenant. Tenant shall pay the reasonable cost of fees charged by
Landlord and/or Landlord’s consultants as a Property Maintenance Cost.
E. Upon the expiration or earlier termination of the Lease, Tenant, at its sole cost, shall
remove all Hazardous Materials from the Property caused or permitted by Tenant, its invitees,
agents or assigns and shall provide to Landlord from a registered environmental consultant selected
by Tenant and reasonably acceptable to Landlord (or if Tenant shall not select a registered
environmental consultant, an environmental consultant chosen by Landlord, whose fees shall be paid
directly by Tenant) the request for closure that will be provided to the local governmental agency,
which request will indicate the closure plan, the test results, and the conclusion that the test
results indicate that the site is ready to be closed as to Tenant’s use of hazardous materials on
site. Tenant will also provide to Landlord a site closure letter or site approval letter from the
fire department or any other applicable governmental authority indicating that the property has
been inspected and based on the request for closure and the data and representations attached
thereto, that the site may be closed. Landlord may retain, at Landlord’s
sole cost, its own environmental consultant to oversee Tenant’s request for closure and the
closure letter procedures described above, which environmental consultant shall reasonably approve
Tenant’s closure of the site for such closure to be deemed acceptable pursuant to this Section
4.14(E). If Tenant fails to so surrender the Property upon the expiration or earlier termination of
this Lease, Tenant shall indemnify and hold Landlord harmless from all damages resulting from
Tenant’s failure to surrender the Property as required hereby, including, without limitation, any
claims or damages in connection with the condition of the Property including, without limitation,
damages occasioned by the inability to release the Property (or any portion
17
thereof) or a
reduction in the fair market and/or rental value of the Property, Building, Outside Areas, and/or
Property by reason of the existence of any Hazardous Materials in or around the Leased Premises,
Building, Outside Areas, and/or Property.
F. As used herein, the term “Hazardous Materials(s)” means any hazardous or toxic
substance, material or waste, which is or becomes regulated by any federal, state, regional or
local governmental authority because it is in any way hazardous, toxic, carcinogenic, mutagenic or
otherwise adversely affects any part of the environment or creates risks of any such hazards or
effects, including, but not limited to, petroleum; asbestos, and polychlorinated bipheyls and any
material, substance, or waste (a) defined as a “hazardous waste,” “extremely hazardous waste” or
“restricted hazardous waste” under Sections 25115, 25117 or 25122.7, or listed pursuant to Section
25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control
Law); (b) defined as a “hazardous substance” under Section 25316 of the California Health and
Safety Code, Division 20, Chapter 6.8 (Xxxxxxxxx-Xxxxxxx Xxxxxx Hazardous Substance Account Act);
(c) defined as a “hazardous material,” “hazardous substance” or “hazardous waste” under Section
25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials
Release Response Plans and Inventory); (d) defined as a “hazardous substance” under Section 25281
of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of
Hazardous Substances); (e) defined as a “hazardous substance” pursuant to Section 311 of the Clean
Xxxxx Xxx, 00 Xxxxxx Xxxxxx Code Sections 1251 et seq. (33 U.S.C. 1321) or listed
pursuant to Section 307 of the Clean Water Act (33 U.S.C. 1317); (f) defined as a “hazardous waste”
pursuant to Section 1004 of the Resource Conservation and Xxxxxxxx Xxx, 00 Xxxxxx Xxxxxx Code
Sections 6901 et seq. (42 U.S.C. 6903); or (g) defined as a “hazardous substance” pursuant
to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42
United States Code Section 9601 et seq. (42 U.S.C. 9601) or (h) defined as a “hazardous
substance” pursuant to Section 311 of the Federal Water Pollution Control Act, 33 U.S.C. 1251
et seq. or (i) listed pursuant to Section 307 of the Federal Water Pollution
Control Act (33 U.S.C. 1317 ) or ( j ) regulated under the Toxic Substances Control Act (15 U.S.C.
2601 et seq.) or (k) defined as a “hazardous material “under Section 66680 or 66084 of
Title 22 of the California Code of Regulations (Administrative Code) (l) listed in the United
States Department of Transportation Hazardous Materials Table (49 C. F.R. 172.101) or (m) listed by
the Environmental Protection Agency as “hazardous substances” ( 4 0 C.F.R. Part 302 ) and
amendments thereto . The term “Hazardous Material Laws” shall mean (i) all of the foregoing
laws as amended from time to time and (ii) any other federal, state, or local law, ordinance,
regulation, or order regulating Hazardous Materials.
G. Tenant’s failure to comply with any of the requirements of this Article 4 regarding the
storage, use, disposal, or transportation of Hazardous Materials, or the appearance of any
Hazardous Materials on the Leased Premises, Building, Common Area, Outside Area, and/or the
Property without Landlord’s consent shall be an Event of Default as defined in this Lease. The
obligations of Landlord and Tenant under this Article 4 shall survive the expiration or
earlier termination of the Lease Term. The rights and obligations of Landlord and Tenant with
respect to issues relating to Hazardous Materials are exclusively established by this Article 4. In
the event of any inconsistency between any other part of this Lease and this Article 4, the terms
of this article shall control.
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ARTICLE 5
REPAIRS, MAINTENANCE, SERVICES AND UTILITIES
5.1 REPAIR AND MAINTENANCE: Except in the case of damage to or destruction of the Leased
Premises, the Building, the Outside Areas or the Property caused by an act of God or other peril,
in which case the provisions of Article 10 shall control, the parties shall have the following
obligations and responsibilities with respect to the repair and maintenance of the Leased Premises,
the Building and the Outside Areas.
A. Tenant’s Obligation: Tenant shall, at all times during the Lease Term and at its sole cost
and expense, regularly clean and continuously keep and maintain in good order, condition and repair
the Leased Premises and every part thereof including, without limiting the generality of the
foregoing, (i) the roof membrane, all interior walls, floors and ceilings, (ii) all windows, doors
and skylights, (iii) all electrical wiring, conduits and connectors (except those electrical
wiring, conduits and connectors existing as of the Delivery Date which shall be a Landlord
obligation pursuant to Section 5.1(B) below), (iv) all fixtures, (v) all plumbing, pipes, sinks,
toilets, faucets and drains, (vi) all lighting fixtures, bulbs and lamps, (vii) all heating,
ventilating and air conditioning equipment, and (viii) all entranceways to the Leased Premises.
Tenant shall hire, at Tenant’s sole cost and expense, a licensed heating, ventilating and air
conditioning contractor to regularly and periodically (not less frequently than every three months)
inspect and perform required maintenance on the heating, ventilating and air conditioning equipment
and systems serving the Leased Premises. The HVAC contractor engaged for such purpose shall be
reasonably approved by Landlord. Tenant shall provide Landlord with copies of all HVAC maintenance
reports on a quarterly basis, including copies of contractor recommendations for repairs and/or
replacement. If any repairs and/or replacements are recommended by the contractor, Tenant shall
perform such repairs and/or replacements and shall provide Landlord with evidence that such repairs
and/or replacements have been completed in accordance with the contractor’s recommendations.
Tenant shall, at all times during the Lease Term, keep in a clean and safe condition the Outside
Areas. Tenant shall regularly and periodically sweep and clean the driveways and parking areas.
Tenant shall, at its sole cost and expense, repair all damage to the Leased Premises, the Building,
the Outside Areas or the Property caused by the activities of Tenant, its employees, invitees or
contractors promptly following written notice from Landlord to so repair such damage. Landlord (or
its agent) shall have the right at any time during the Term, upon providing prior notice to Tenant,
to enter and inspect the Property for the purpose of verifying the performance of the required
maintenance and repairs by Tenant. If Tenant shall fail to hire a contractor as required pursuant
to this Section 5.1(A) or fail to perform the required maintenance or fail to make repairs required
of it pursuant to this Article 5 within ten (10) days following notice from Landlord to do so, then
Landlord may, at its election and without waiving any other remedy it may otherwise have under this
Lease or at Law, hire such contractor, perform such maintenance or make such repairs and charge to
Tenant, as Additional Rent pursuant to Section 3.2(D) not subject to the Maintenance Costs Cap, the
costs so incurred by Landlord for same. All glass within or a part of the Leased Premises, both
interior and exterior, is at the sole
risk of Tenant and any broken glass shall promptly be replaced by Tenant at Tenant’s expense
with glass of the same kind, size and quality. During the last three (3) years of the Lease Term,
to the extent any of Tenant’s maintenance responsibilities set forth herein cause the need for the
replacement of a capital item which has a useful life of over five (5) years and the cost of
replacement of such item exceeds Twenty Five Thousand Dollars ($25,000)), Tenant shall obtain
Landlord’s reasonable approval for the replacement of such capital item (which approval shall be
19
conditioned upon Tenant not being in default beyond any applicable cure period), and, if approved,
Landlord shall pay for the cost of replacing such item, provided that upon completion of the
replacement, Tenant shall reimburse Landlord for the amortized cost portion of the replacement cost
that is attributed to the period of useful life prior to the expiration of Lease Term (as such term
may be extended pursuant to the terms hereof), which useful life shall be reasonably determined by
Landlord. Notwithstanding anything to the contrary contained herein, any replacement of a capital
item to be charged to Tenant pursuant to this Section 5.1A shall be considered a Property
Maintenance Cost and charged to Tenant as Additional Rent pursuant to Section 3.2(D) above and
shall not be subject to the Maintenance Costs Cap. Notwithstanding the foregoing, if during the
original Lease Term Landlord shall pay for any portion of a capital item pursuant to this Section
5.1.A and Tenant shall thereafter exercise its Extension Option, Tenant shall upon its exercise of
such Extension Option pay for the remaining portion of the amortized cost portion of the
replacement cost that is attributable to the number of years in the Extended Term, and Tenant shall
pay to Landlord concurrently with the exercise of such Extension Option and as a condition to the
effectiveness thereof, such amount as a lump sum payment together with interest thereon from the
date paid by Landlord at the rate of eight percent (8%) per annum compounded annually. By way of
illustration, if Tenant has only three (3) years of the Lease Year remaining and at such time
Landlord incurs a cost to replace a capital item of $100,000 with respect to a capital item that
has a useful life of ten (10) years, then Tenant shall reimburse Landlord for $30,000 of the
replacement cost of such capital item at the time such cost is incurred and if Tenant then
exercises its Extension Option and the Lease Term is thereby extended for five (5) years, then
Tenant shall also pay Landlord 5/7 of the remaining $70,000 replacement cost with respect to such
item plus interest accrued on such cost from the date the cost was incurred at eight percent (8%)
per annum compounded annually in the total amount of $62,986. In the event Tenant remains in the
Premises after the Extended Term then Tenant shall continue to pay the unamortized portion of the
replacement cost of the capital item at eight percent (8%) per annum compounded annually through
the end of its useful life.
B. Landlord’s Obligation: Landlord shall, at all times during the Lease Term, maintain in good
condition and repair: (i) the exterior and structural parts of the Building (including the
foundation, subflooring, load-bearing and exterior walls, and structural elements of the roof),
(ii) the building shell and any cracking due to settling, (iii) major building systems and
underground utilities, (iv) all electrical wiring, conduits and connectors existing on the Leased
Premises as of the Delivery Date, and (v) the landscaped areas located outside the Building. The
provisions of this Section 5.1(B) shall in no way limit the right of Landlord to charge to Tenant,
as Additional Rent pursuant to Article 3 (to the extent permitted pursuant to Article 3), the costs
incurred by Landlord in performing such maintenance and/or making such repairs.
C. Americans With Disabilities Act (“ADA”) and Similar Acts: During the Lease Term,
Landlord, at its sole cost and expense, shall be responsible for compliance with the ADA, Title 24
of the California Administrative Code, and other similar federal, state, and local laws and
regulations, with respect to the structural walls, foundations, electrical and structural systems,
concrete sub-flooring, structural elements of the roof, major building systems, and
underground utilities, including the Building shell and Landlord shall have no other liability or
obligations with respect to compliance with the ADA. Notwithstanding anything to the contrary
contained herein, during the Lease Term, Tenant, at its sole cost and expense, shall cause all
alterations, additions, improvements and repairs made by Tenant to the Leased Premises to comply
with the provisions of the ADA, Title 24 of the California Administrative Code, and
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other similar
federal, state and local laws and regulations required by Tenant’s use or occupation of the Leased
Premises.
5.2 UTILITIES: Tenant shall arrange, at its sole cost and expense and in its own name, for the
supply of gas and electricity to the Leased Premises. In the event that such services are not
separately metered, Tenant shall, at its sole expense, cause such meters to be installed. Landlord
shall maintain the water meter(s) in its own name; provided, however, that if at any time during
the Lease Term Landlord shall require Tenant to put the water service in Tenant’s name, Tenant
shall do so at Tenant’s sole cost. Tenant shall be responsible for determining if the local
supplier of water, gas and electricity can supply the needs of Tenant and whether or not the
existing water, gas and electrical distribution systems within the Building and the Leased Premises
are adequate for Tenant’s needs. Tenant shall be responsible for determining if the existing
sanitary sewer system now servicing the Leased Premises and the Property is adequate for Tenant’s
needs. Notwithstanding the provisions of Section 3.2 regarding payment of Additional Rent,
commencing on the Lease Commencement Date and continuing throughout the Lease Term, Tenant shall
pay all charges for water, gas, electricity, and storm and sanitary sewer services as so supplied
to the Leased Premises, irrespective of whether or not the services are maintained in Landlord’s or
Tenant’s name.
5.3 SECURITY: Tenant acknowledges that Landlord has not undertaken any duty whatsoever to
provide security for the Leased Premises, the Building, the Outside Areas or the Property and,
accordingly, Landlord is not responsible for the security of same or the protection of Tenant’s
property or Tenant’s employees, invitees or contractors. To the extent Tenant determines that such
security or protection services are advisable or necessary, Tenant shall arrange for and pay the
costs of providing same.
5.4 ENERGY AND RESOURCE CONSUMPTION: Landlord may voluntarily cooperate in a reasonable manner
with the efforts of governmental agencies and/or utility suppliers in reducing energy or other
resource consumption within the Property. Tenant shall not be entitled to terminate this Lease or
to any reduction in or abatement of rent by reason of such compliance or cooperation. Tenant agrees
at all times to cooperate fully with Landlord and to abide by all reasonable rules established by
Landlord (i) in order to maximize the efficient operation of the electrical, heating, ventilating
and air conditioning systems and all other energy or other resource consumption systems within the
Property and/or (ii) in order to comply with the requirements and recommendations of utility
suppliers and governmental agencies regulating the consumption of energy and/or other resources.
5.5 LIMITATION OF LANDLORD’S LIABILITY: Landlord shall not be liable to Tenant for injury to
Tenant, its employees, agents, invitees or contractors, damage to Tenant’s property or loss of
Tenant’s business or profits, nor shall Tenant be entitled to terminate this Lease or to any
reduction in or abatement of rent by reason of any matter relating to this Lease or the Leased
Premises unless the same is caused by Landlord’s gross negligence or willful misconduct. Without
limiting the foregoing, Landlord shall not be liable to Tenant as a result of (i)
Landlord’s failure to provide security services or systems within the Property for the
protection of the Leased Premises, the Building or the Outside Areas, or the protection of Tenant’s
property or Tenant’s employees, invitees, agents or contractors, or (ii) Landlord’s failure to
perform any maintenance or repairs to the Leased Premises, the Building, the Outside Areas or the
Property until Tenant shall have first notified Landlord, in writing, of the need for such
maintenance or repairs, and then only after Landlord shall have had a reasonable period of
21
time
following its receipt of such notice within which to perform such maintenance or repairs, or (iii)
any failure, interruption, rationing or other curtailment in the supply of water, electric current,
gas or other utility service to the Leased Premises, the Building, the Outside Areas or the
Property from whatever cause (other than Landlord’s active gross negligence or willful misconduct),
or (iv) the unauthorized intrusion or entry into the Leased Premises by third parties (other than
Landlord).
ARTICLE 6
ALTERATIONS AND IMPROVEMENTS
6.1 BY TENANT: Tenant shall not make any alterations to or modifications of the Leased
Premises or construct any improvements to or within the Leased Premises without Landlord’s prior
written approval, which approval shall not be unreasonably withheld, and then not until Landlord
shall have first approved, in writing, the plans and specifications therefore, which approval shall
not be unreasonably withheld, conditioned or delayed (the “Alterations”). Notwithstanding
the foregoing, Landlord approval shall not be required with respect to non-structural Alterations
to the Leased Premises, which non-structural Alterations do not exceed, in the aggregate, Fifty
Thousand Dollars ($50,000). All work undertaken by Tenant shall be done in accordance with all
Laws and in a good and workmanlike manner using new materials of good quality that match or
complement the original improvements existing as of the Lease Commencement Date. Tenant shall not
commence the making of any such Alterations or the construction of any such Alterations until (i)
all required governmental approvals and permits shall have been obtained, (ii) all requirements
regarding insurance imposed by this Lease have been satisfied, (iii) Tenant shall have given
Landlord at least five (5) business days prior written notice of its intention to commence such
work so that Landlord may post and file notices of non-responsibility, and (iv) if requested by
Landlord, Tenant shall have obtained broad form builder’s risk insurance in an amount satisfactory
to Landlord to cover any perils relating to the proposed work not covered by insurance carried by
Tenant pursuant to Article 9. In no event shall Tenant make any modifications, alterations or
improvements to any areas outside of the Leased Premises. As used in this Article, the term
“modifications, alterations and/or improvements” shall include, without limitation, the
installation of additional electrical outlets, overhead lighting fixtures, drains, sinks,
partitions, doorways, or the like.
6.2 INITIAL ALTERATIONS: Subject to payment of the Tenant Improvement Allowance and otherwise
in accordance with the terms and provisions of the Tenant Improvement Agreement attached hereto as
Exhibit “D”, all modifications, alterations or improvements, once approved in accordance
with this Section 6.1, shall be made, constructed or installed by Tenant at Tenant’s expense, using
a licensed contractor first approved by Landlord, in substantial compliance with the Landlord
approved plans and specifications therefore. To the extent Tenant does not use the entire Tenant
Improvement Allowance, any excess may be credited toward Base Monthly Rent owed during the initial
twenty-four (24) months of the Lease Term.
6.3 OWNERSHIP OF ALTERATIONS: All Alterations made or added to the Leased Premises by Tenant
(which does not include Tenant’s inventory, equipment, movable furniture, wall decorations and
trade fixtures) shall be deemed real property and a part of the Leased Premises, but shall remain
the property of Tenant during the Lease Term. Any such Alterations, once completed, shall not be
altered or removed from the Leased Premises during the Lease Term without Landlord’s written
approval first obtained in accordance with the provisions of
22
Section 6.1 above. At the expiration
or sooner termination of this Lease, all such Alterations shall automatically become the property
of Landlord and shall be surrendered to Landlord as a part of the Leased Premises as required
pursuant to Article 2, unless Landlord shall require Tenant to remove any of such Alterations in
accordance with the provisions of Article 2, in which case Tenant shall so remove same. Landlord
shall have no obligation to reimburse to Tenant all or any portion of the cost or value of any
Alterations so surrendered to Landlord. All modifications, alterations or improvements which are
installed or constructed on or attached to the Leased Premises by Landlord at Landlord’s expense
shall be deemed real property and a part of the Leased Premises and shall be the property of
Landlord. All lighting, plumbing, electrical, heating, ventilating and air conditioning fixtures,
partitioning, window coverings, wall coverings and floor coverings installed by Tenant shall be
deemed Alterations to the Leased Premises and not trade fixtures of Tenant.
6.4 ALTERATIONS: Tenant shall, at its sole cost make all modifications, alterations and
improvements to the Property that are required by any Law because of (i) Tenant’s use or occupancy
of the Leased Premises, the Building, the Outside Areas, or the Property, (ii) Tenant’s application
for any permit or governmental approval, or (iii) Tenant’s making of any Alterations to or within
the Leased Premises. Except as provided for in the preceding sentence, if Landlord shall, at any
time during the Lease Term, (i) be required by any governmental authority to make any
modifications, alterations or improvements to the Building or the Project, (ii) modify the existing
(or construct additional) capital improvements or provide building service equipment for the
purpose of reducing the consumption of utility services or project maintenance costs for the
Property, the cost incurred by Landlord in making such modifications, alterations or improvements,
including an eight percent (8%) per annum cost of money factor, shall be amortized by Landlord over
the useful life of such modifications, alterations or improvements, as determined in accordance
with generally accepted accounting standards, and the monthly amortized cost of such modifications,
alterations and improvements as so amortized shall be considered a Property Maintenance Cost and
charged to Tenant as Additional Rent pursuant to Section 3.2(D) above and shall not be subject to
the Maintenance Costs Cap.
6.5 LIENS: Tenant shall keep the Property and every part thereof free from any liens and shall
pay when due all bills arising out of any work performed, materials furnished, or obligations
incurred by Tenant, its agents, employees or contractors relating to the Property. If any such
claim of lien is recorded against Tenant’s interest in this Lease, the Property or any part
thereof, Tenant shall promptly notify Landlord in writing of such lien, bond against, discharge or
otherwise cause such lien to be entirely released within the earlier of fifteen (15) days after
Tenant’s actual knowledge thereof or fifteen (15) days after receipt of written demand from
Landlord to release or bond the lien. Tenant’s failure to do so shall be conclusively deemed a
material default under the terms of this Lease.
ARTICLE 7
ASSIGNMENT AND SUBLETTING BY TENANT
ASSIGNMENT AND SUBLETTING BY TENANT
7.1 BY TENANT: Except as set forth in Section 7.10 below, Tenant shall not sublet the Leased
Premises (or any portion thereof) or assign or encumber its interest in this Lease, whether
voluntarily or by operation of Law, without Landlord’s prior written consent first obtained in
accordance with the provisions of this Article 7, which consent shall not be unreasonably withheld.
Any attempted subletting, assignment or encumbrance without Landlord’s prior written consent, at
Landlord’s election, shall constitute a default by Tenant under the terms of this Lease.
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The
acceptance of rent by Landlord from any person or entity other than Tenant, or the acceptance of
rent by Landlord from Tenant with knowledge of a violation of the provisions of this Article, shall
not be deemed to be a waiver by Landlord of any provision of this Article 7 or this Lease or to be
a consent to any subletting by Tenant or any assignment or encumbrance of Tenant’s interest in this
Lease.
7.2 MERGER OR REORGANIZATION: If Tenant is a corporation, any dissolution, merger,
consolidation or other reorganization of Tenant, or the sale or other transfer in the aggregate
over the Lease Term of a controlling percentage of the capital stock of Tenant, shall be deemed a
voluntary assignment of Tenant’s interest in this Lease. The phrase “controlling percentage” means
the ownership of and the right to vote stock possessing more than fifty percent (50%) of the total
combined voting power of all classes of Tenant’s capital stock issued, outstanding and entitled to
vote for the election of directors. If Tenant is a partnership, a withdrawal or change, whether
voluntary, involuntary or by operation of Law, of any general partner, or the dissolution of the
partnership, shall be deemed a voluntary assignment of Tenant’s interest in this Lease.
7.3 LANDLORD’S ELECTION: If Tenant or Tenant’s successors shall desire to assign its interest
under this Lease or to sublet the Leased Premises, Tenant and Tenant’s successors must first notify
Landlord, in writing, of its intent to so assign or sublet, at least fifteen (15) days in advance
of the date it intends to so assign its interest in this Lease or sublet the Leased Premises but
not sooner than sixty (60) days in advance of such date, specifying in detail the terms of such
proposed assignment or subletting, including the name of the proposed assignee or sublessee, the
proposed assignee’s or sublessee’s intended use of the Leased Premises, a current financial
statement of such proposed assignee or sublessee and the form of documents to be used in
effectuating such assignment or subletting. Landlord shall have a period of ten (10) business days
following receipt of such notice and receipt of all information requested by Landlord regarding the
proposed assignee or sublessee within which to either (i) consent to such requested assignment or
subletting subject to Tenant’s and Tenant’s successors’ compliance with the conditions set forth in
Section 7.4 below or (ii) refuse to so consent to such requested assignment or subletting, provided
that such consent shall not be unreasonably withheld, conditioned or delayed. Landlord’s failure
to respond within thirty (30) calendar days of Tenant’s request shall be deemed a consent to the
assignment or subletting.
Without limiting the other reasons for which Landlord may reasonably withhold its consent to
any proposed assignment or subletting, it shall not be unreasonable for Landlord to withhold its
consent to any proposed assignment or subletting if (i) the proposed assignee’s or subtenant’s
anticipated use of the Premises involves the storage, use or disposal of a Hazardous Material that
materially differs from the storage, use or disposal of Hazardous Materials engaged
in by Tenant and consented to by Landlord pursuant to the terms hereof; (ii) if the proposed
assignee or subtenant has been required by any prior landlord, lender or governmental authority to
clean up Hazardous Materials unlawfully discharged by the proposed assignee or subtenant; or (iii)
if the proposed assignee or subtenant is subject to investigation or enforcement order or
proceeding by any governmental authority in connection with the use, disposal or storage of a
Hazardous Material. Tenant and Tenant’s successors covenant and agree to supply to Landlord, upon
request, all necessary or relevant information which Landlord may reasonably request respecting
such proposed assignment or subletting and/or the proposed assignee or sublessee. Landlord’s review
period shall not commence until Landlord has received all information requested by Landlord.
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7.4 CONDITIONS TO LANDLORD’S CONSENT: If Landlord elects to consent to such requested
assignment, subletting or encumbrance, such consent shall be expressly conditioned upon the
occurrence of each of the conditions below set forth, and any purported assignment, subletting or
encumbrance made or ordered prior to the full and complete satisfaction of each of the following
conditions shall be void and, at the election of Landlord, which election may be exercised at any
time following such a purported assignment, subletting or encumbrance shall constitute a material
default by Tenant under this Lease giving Landlord the absolute right to terminate this Lease. The
conditions are as follows:
A. Landlord having approved in form and substance the assignment or sublease agreement (or the
encumbrance agreement), which approval shall not be unreasonably withheld by Landlord if the
requirements of this Article 7 are otherwise complied with. Without limiting the foregoing, such
agreement shall contain a provision that it may not be amended or modified without the Landlord’s
prior written consent, the absence of which will cause any such amendment or modification to be
null and void.
B. Each such sublessee or assignee having agreed, in writing satisfactory to Landlord and its
counsel and for the benefit of Landlord, to assume, to be bound by, and to perform the obligations
of this Lease to be performed by Tenant (or, in the case of an encumbrance, each such encumbrancer
having similarly agreed to assume, be bound by and to perform Tenant’s obligations upon a
foreclosure or transfer in lieu thereof).
C. Tenant having fully and completely performed all of its obligations under the terms of this
Lease through and including the date of the requested consent, as well as through and including the
date such assignment or subletting is to become effective.
D. Tenant having reimbursed to Landlord all reasonable costs and attorneys fees incurred by
Landlord in conjunction with the processing and documentation of any such requested subletting,
assignment or encumbrance.
E. Tenant having delivered to Landlord a complete and fully-executed duplicate original of
such sublease agreement, assignment agreement or encumbrance (as applicable) and all related
agreements
F. After deduction of any costs associated with such sublease, assignment or encumbrance,
including any broker commissions, reasonable attorneys’ fees and tenant improvement expenses with
respect to any sublease, Tenant having paid, or having agreed in
writing to pay as to future payments, to Landlord fifty percent (50%) of all Assignment
Consideration or Excess Rentals (both as defined in Section 7.5 below) to be paid to Tenant or to
any other on Tenant’s behalf or for Tenant’s benefit for such assignment or subletting, as follows:
(1) If Tenant assigns its interest under the Lease and if all or a portion of the
consideration for such assignment is to be paid by the assignee at the time of the assignment, that
Tenant shall have paid to Landlord and Landlord shall have received an amount equal to fifty
percent (50%) of the Assignment Consideration so paid or to be paid whichever is the greater) at
the time of the assignment by the assignee; or
25
(2) If Tenant assigns its interest under this Lease and if Tenant is to receive all or a
portion of the consideration for such assignment in future installments, that Tenant and Tenant’s
assignee shall have entered into a written agreement with and for the benefit of Landlord
satisfactory to Landlord and its counsel whereby Tenant and Tenant’s assignee jointly agree to pay
to Landlord an amount equal to fifty percent (50%) of all such future Assignment Consideration
installments to be paid by such assignee as and when such Assignment Consideration is so paid.
(3) If Tenant subleases the Leased Premises, that Tenant and Tenant’s sublessee shall have
entered into a written agreement with and for the benefit of Landlord satisfactory to Landlord and
its counsel whereby Tenant and Tenant’s sublessee jointly agree to pay to Landlord fifty percent
(50%) of all Excess Rentals to be paid by such sublessee as and when such Excess Rentals are so
paid and fifty percent (50%) of any payment upon termination or modification of a sublease.
7.5 ASSIGNMENT CONSIDERATION AND EXCESS RENTALS DEFINED: For purposes of this article, the
term “Assignment Consideration” shall mean all consideration to be paid by the Assignee as
consideration for such assignment, and the term “Excess Rentals” shall mean all
consideration to be paid by the Sublessee in excess of the rent to be paid by said
Sublessee/Sublessor for the premises subleased for the same period. Assignment Considerations
and/or Excess Rentals shall include all payments made or to be made by any Assignee or Sublessee
relating in any way to any transfer of an interest in the Lease or the Leased Premises including,
but not limited to, any payment made with respect to property which would or shall become
Landlord’s property upon the expiration or earlier termination of the Lease, whether such property
was installed or paid for by Landlord or by Tenant or Tenant’s successors. In the event Tenant or
Tenant’s successors sublease a portion of the Leased Premises, Excess Rentals shall be calculated
by subtracting the rent payable by the Sublessor for the portion of the Leased Premises so sublet
from all consideration to be paid by such Sublessee. Rent payable by the Sublessor for the portion
of the Leased Premises so sublet shall be calculated by multiplying the Base Monthly Rent payable
by the Sublessor for the Leased Premises leased by such Sublessor by a fraction, the numerator of
which is the area in square feet subleased and the denominator of which is the total floor area of
the Leased Premises leased by such Sublessor also in square feet.
7.6 PAYMENTS: All payments required by this Article to be made to Landlord shall be made in
cash in full as and when they become due. At the time Tenant, Tenant’s assignee or sublessee makes
each such payment to Landlord, Tenant or Tenant’s assignee or sublessee, as the case may be, shall
deliver to Landlord an itemized statement in reasonable detail showing the method by which the
amount due Landlord was calculated and certified by the party making such
payment as true and correct. Upon the occurrence and continuation of an Event of Default,
Landlord may require that all payments of Excess Rentals and/or Assignment Consideration to be made
hereunder be made directly to Landlord by such Transferee.
7.7 GOOD FAITH: The rights granted to Tenant by this Article are granted in consideration of
Tenant’s express covenant that all pertinent allocations which are made by Tenant between the
rental value of the Leased Premises and the value of any of Tenant’s personal property which may be
conveyed or leased concurrently with and which may reasonably be considered a part of the same
transaction as the permitted assignment or subletting shall be made fairly, honestly and in good
faith. If Tenant shall breach this covenant of good faith, Landlord may immediately declare Tenant
to be in default under the terms of this Lease and terminate this
26
Lease and/or exercise any other
rights and remedies Landlord would have under the terms of this Lease in the case of a material
default by Tenant under this Lease.
7.8 EFFECT OF LANDLORD’S CONSENT: No subletting, assignment or encumbrance, even with the
consent of Landlord, shall relieve Tenant of its personal and primary obligation to pay rent and to
perform all of the obligations to be performed by Tenant hereunder. Consent by Landlord to one or
more assignments or encumbrances of Tenant’s interest in this Lease or to one or more sublettings
of the Leased Premises shall not be deemed to be a consent to any subsequent assignment,
encumbrance or subletting. If Landlord shall have been ordered by a court of competent jurisdiction
to consent to a requested assignment or subletting, or such an assignment or subletting shall have
been ordered over the objection of Landlord, such assignment or subletting shall not be binding
between the assignee (or sublessee) and Landlord until such time as all conditions set forth in
Section 7.4 above have been fully satisfied (to the extent not then satisfied) by the assignee or
sublessee, including, without limitation, the payment to Landlord of all agreed Assignment
Consideration and/or Excess Rentals then due Landlord.
7.9 Intentionally Omitted.
7.10 PERMITTED TRANSFERS: Notwithstanding any other provision of this Lease, no consent shall
be required for a subletting or assignment of the Leased Premises to a Tenant Affiliate or Tenant
Successor; provided however, within ten (10) days following any such subletting or assignment,
Tenant provides Landlord with written documentation, satisfactory to Landlord in its sole
discretion, evidencing that such entity is a Tenant Affiliate or Tenant Successor. For purposes
hereof, (i) “Tenant Affiliate” shall mean any corporation, partnership or other entity
which controls, is controlled by or is under common control with Asyst Technologies, Inc.
(provided, that, Asyst Technologies, Inc. is then a wholly owned subsidiary of such entity or the
relationship between Asyst Technologies, Inc. and such entity otherwise complies with the foregoing
definition), and (ii) “Tenant Successor” shall mean any entity which acquires all or
substantially all of the stock or assets of Asyst Technologies, Inc. or any entity into which Asyst
Technologies, Inc. may become merged or consolidated and which has a net worth equal to or greater
than that of Asyst Technologies, Inc. at the transfer date. “Control” in this context
shall mean the right directly or indirectly to exercise in excess of fifty percent (50%) of the
voting or governing power of an entity.
ARTICLE 8
LIMITATION ON LANDLORD’S LIABILITY AND INDEMNITY
LIMITATION ON LANDLORD’S LIABILITY AND INDEMNITY
8.1 LIMITATION ON LANDLORD’S LIABILITY AND RELEASE: Landlord shall not be liable to Tenant
for, and Tenant hereby releases Landlord and its partners, principals, officers, agents and
employees from, any and all liability, whether in contract, tort or on any other basis, for any
injury to or any damage sustained by Tenant, Tenant’s agents, employees, contractors or invitees;
any damage to Tenant’s property; or any loss to Tenant’s business, loss of Tenant’s profits or
other financial loss of Tenant resulting from or attributable to the condition of, the management
of, the repair or maintenance of, the protection of, the supply of services or utilities to, the
damage to or destruction of the Leased Premises, the Building or the Project, including without
limitation (i) the failure, interruption, rationing or other curtailment or cessation in the supply
of electricity, water, gas or other utility service to the Project, the Building or the Leased
Premises; (ii) the vandalism or forcible entry into the Building or the Leased Premises; (iii) the
penetration of water into or onto any portion of the Leased Premises through
27
roof leaks or
otherwise; (iv) the failure to provide security and/or adequate lighting in or about the Project,
the Building or the Leased Premises; (v) the existence of any design or construction defects
within the Project, the Building or the Leased Premises; (vi) the failure of any mechanical systems
to function properly (such as the HVAC systems); or (vii) the blockage of access to any portion of
the Project, the Building or the Leased Premises, except that Tenant does not so release Landlord
from such liability to the extent such damage was proximately caused by Landlord’s gross
negligence, willful misconduct, or Landlord’s intentional failure to perform an obligation
expressly undertaken pursuant to this Lease after a reasonable period of time shall have lapsed
following receipt of written notice from Tenant to so perform such obligation. With regard to the
matters released above and without limiting such matters released above, Tenant acknowledges that
it is fully apprised of the provisions of Law relating to releases, and particularly to those
provisions contained in Section 1542 of the California Civil Code which reads as follows:
A general release does not extend to claims which the creditor does
not know or suspect to exist in his or her favor at the time of
executing the release, which if known by him or her must have
materially affected his or her settlement with the debtor.
Notwithstanding such statutory provision, and for the purpose of implementing a full and complete
release and discharge, Tenant hereby (i) waives the benefit of such statutory provision and (ii)
acknowledges that, subject to the exceptions specifically set forth herein, the release and
discharge set forth in this Article 8 is a full and complete settlement and release and discharge
of all claims and is intended to include in its effect, without limitation, all claims which
Tenant, as of the date hereof, does not know of or suspect to exist in its favor.
8.2 TENANT’S INDEMNIFICATION OF LANDLORD: Tenant shall defend with competent counsel
satisfactory to Landlord any claims made or legal actions filed or threatened against Landlord with
respect to the violation of any law, or the death, bodily injury, personal injury, property damage,
or interference with contractual or property rights suffered by any third party (including other
tenants within the Project) occurring within the Leased Premises or resulting from Tenant’s use or
occupancy of the Leased Premises, the Building or the Outside Areas, or resulting from Tenant’s
activities in or about the Leased Premises, the Building, the Outside Areas or the Property, and
Tenant shall indemnify and hold Landlord, Landlord’s
principals, employees, agents and contractors harmless from any loss, liability, penalties, or
expense whatsoever (including any loss attributable to vacant space which otherwise would have been
leased, but for such activities) resulting therefrom, except to the extent proximately caused by
the active negligence or willful misconduct of Landlord. This indemnity agreement shall survive the
expiration or sooner termination of this Lease, provided that Tenant shall not be required to
indemnify Landlord under this Section 8.2 with respect to events that first occur after the later
of (a) the date of the expiration, or sooner termination, of this Lease, or (b) the date Tenant
actually vacates the Premises, provided that Landlord has actual notice of such vacation.
ARTICLE 9
INSURANCE
9.1 TENANT’S INSURANCE: Tenant shall maintain insurance complying with all of the
following:
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A. Tenant shall procure, pay for and keep in full force and effect, at all times during the
Lease Term, the following:
(1) Commercial General Liability insurance insuring Tenant against liability for bodily
injury, death, property damage and personal injury occurring at the Leased Premises, or resulting
from Tenant’s use or occupancy of the Leased Premises or the Building, Outside Areas or Property,
or resulting from Tenant’s activities in or about the Leased Premises. Such insurance shall be on
an occurrence basis with a limit of liability of not less than the amount of Tenant’s Required
Liability Coverage (as set forth in Article 1). The policy or policies shall be endorsed to name
Landlord and such others as are designated by Landlord as additional insureds in the form
equivalent to CG20111185 or successor and shall contain the following additional endorsement: “The
insurance afforded to the additional insureds is primary insurance. If the additional insureds have
other insurance which is applicable to the loss on a contributing, excess or contingent basis, the
amount of this insurance company’s liability under this policy shall not be reduced by the
existence of such other insurance. Any insurance carried by the additional insureds shall be excess
and non contributing with the insurance provided by the tenant.” The policy shall not be canceled
or reduced without at least 30 days written notice to additional insureds. If the policy insures
more than one location, it shall be endorsed to show that the limits and aggregate apply per
location using endorsement CG25041185 or successor. Tenant’s policy shall also contain the
severability of interest and cross-liability endorsement or clauses.
(2) Fire and property damage insurance in so-called Special Form plus flood insuring Tenant
against loss from physical damage to Tenant’s personal property, inventory, stock, trade fixtures
and improvements within the Leased Premises with coverage for the full actual replacement cost
thereof;
(3) Plate-glass insurance, at actual replacement cost;
(4) Boiler and machinery insurance, if applicable;
(5) Workers’ compensation insurance and any other employee benefit insurance sufficient to
comply with all Laws;
(6) With respect to making of alterations or the construction of improvements or the like
undertaken by Tenant, contingent liability and builder’s risk insurance, in an amount and with
coverage satisfactory to Landlord;
(7) Business Income Insurance at a minimum of 50% coinsurance including coverage for loss of
business income due to damage to equipment from perils covered under the so called Special Form
plus the perils of flood; and
(8) Auto Liability insurance with a combined single limit coverage of not less than the amount
of Tenant’s Required Liability Coverage (as set forth in Article 1) for bodily injury and/or
property damage liability for: a) Owned autos b) Hired or borrowed autos and c) Non-owned autos.
B. Each policy of liability insurance required to be carried by Tenant pursuant to this
Article 9 or actually carried by Tenant with respect to the Leased Premises or the Property (i)
shall be in a form reasonably satisfactory to Landlord, (ii) shall be provided by carriers admitted
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to do business in the state of California, with a Best rating of “A-/VII”. Property insurance shall
contain a waiver and/or a permission to waive by the insurer any right of subrogation against
Landlord, its principal, employees, agents and contractors which might arise by reason of any
payment under such policy or by reason of any act or omission of Landlord, its principals,
employees, agents or contractors.
C. Prior to the time Tenant or any of its contractors enters the Leased Premises, Tenant shall
deliver to the Landlord with respect to each policy of insurance required to be carried by Tenant
pursuant to this article, (i) a certificate of the insurance or insurance binder certifying that
the policy has been issued providing the coverage required by this Article 9 and containing the
provisions herein, which certificate shall be in a form reasonably satisfactory to the Landlord,
and (ii) evidence that the premium for such policy has been paid. Attached to such a certificate
shall be endorsements naming Landlord as additional insured, and including the wording under
primary insurance above. With respect to each renewal or replacement of any such insurance, the
requirements of this Article 9 must be complied with not less than 10 days prior to the expiration
or cancellation of the policy being renewed or replaced. Landlord may at any time and from
time-to-time inspect and/or copy any and all insurance policies required to be carried by Tenant
pursuant to this article. If Landlord’s lender, insurance broker or advisor or counsel reasonably
determines at any time that the form or amount of coverage set forth in Section 9.1.(A) for any
policy of insurance Tenant is required to carry pursuant to this Article 9 is not adequate, then
Tenant shall increase the amount of coverage for such insurance to such greater amount or change
the form as Landlord’s lender, insurance broker or advisor or counsel reasonably deems adequate
(provided however such increase level of coverage may not exceed the level of coverage for such
insurance commonly carried by comparable businesses similarly situated and operating under similar
circumstances).
D. To the extent Tenant can obtain such coverage on a commercially reasonable basis, the
Commercial General Liability insurance carried by Tenant shall specifically insure the performance
by Tenant of the indemnification provisions set forth in Section 8.2 of this lease provided,
however, nothing contained in this Article 9 shall be construed to limit the liability of Tenant
under the indemnification provisions set forth in said Section 8.2.
9.2 LANDLORD’S INSURANCE: With respect to insurance maintained by Landlord:
A. Landlord shall maintain, as the minimum coverage required of it by this Lease, property
insurance in so-called “Special” form insuring Landlord (and such others as Landlord may designate)
against loss from physical damage to the Building with coverage of not less than one hundred
percent of the full actual replacement cost thereof and against loss of rents for a period of not
less than twelve months. Such property damage insurance, at Landlord’s election but without any
requirement on Landlord’s behalf to do so, (i) may be written in so-called Special Form, excluding
only those perils commonly excluded from such coverage by Landlord’s then property damage insurer;
(ii) may provide coverage for physical damage to the Building so insured for up to the entire full
actual replacement cost thereof; (iii) may be endorsed to include (or separate policies may be
carried to cover) loss or damage caused by any additional perils against which Landlord may elect
to insure, including earthquake and/or flood; (iv) may provide coverage for loss of rents for a
period of up to twelve months; and/or (v) may contain “deductibles” per occurrence in an amount
reasonably acceptable to Landlord. Landlord shall not be required to cause such insurance to cover
any of Tenant’s personal property, inventory and
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trade fixtures, or any modifications, alterations
or improvements made or constructed by Tenant to or within the Leased Premises.
B. Landlord shall maintain Commercial General Liability insurance insuring Landlord (and such
others as are designated by Landlord) against liability for personal injury, bodily injury, death,
and damage to property occurring in, on or about, or resulting from the use or occupancy of the
Property, or any portion thereof, with combined single limit coverage of at least Two Million
Dollars ($2,000,000) or more. Landlord may carry such greater coverage as Landlord or Landlord’s
Lender, insurance broker or advisor or counsel may from time to time determine is reasonably
necessary for the adequate protection of Landlord and the Property.
C. Landlord may maintain any other insurance which in the opinion of its lender, insurance
broker or advisor, or legal counsel is prudent to carry under the given circumstances.
9.3 MUTUAL WAIVER OF SUBROGATION: Landlord hereby releases Tenant, and Tenant hereby releases
Landlord and its respective principals, officers, agents, employees and servants, from any and all
liability for loss, damage or injury to the property of the other in or about the Leased Premises
or the Property which is caused by or results from a peril or event or happening which would be
covered by insurance required to be carried by the party sustaining such loss under the terms of
this Lease, or is covered by insurance actually carried and in force at the time of the loss, by
the party sustaining such loss; provided, however, that such waiver shall be effective only to the
extent permitted by the insurance covering such loss and to the extent such insurance is not
prejudiced thereby.
ARTICLE 10
DAMAGE TO LEASED PREMISES
10.1 LANDLORD’S DUTY TO RESTORE: If the Leased Premises, the Building or the Outside Areas are
damaged by any insured peril after the Effective Date of this Lease, Landlord shall restore the
same, as and when required by this Article, unless this Lease is terminated by Landlord pursuant to
Section 10.3 or by Tenant pursuant to Section 10.4. If this Lease is not so terminated, then upon
availability, of the insurance proceeds to Landlord (if the loss is covered by
insurance) and the issuance of all necessary governmental permits, Landlord shall commence and
diligently prosecute to completion the restoration of the Leased Premises, the Building or the
Outside Areas, as the case may be, to the extent then allowed by Law, to substantially the same
condition in which it existed as of the Lease Commencement Date. Landlord’s obligation to restore
shall be limited to the improvements constructed by Landlord. Landlord shall have no obligation to
restore any Alterations made by Tenant to the Leased Premises or any of Tenant’s personal property,
inventory or trade fixtures. Upon completion of the restoration by Landlord, Tenant shall forthwith
replace or fully repair all of Tenant’s personal property, inventory, trade fixtures and
Alterations constructed by Tenant to like or similar condition as existed at the time of such
damage or destruction.
10.2 INSURANCE PROCEEDS: All insurance proceeds available from the fire and property damage
insurance carried by Landlord shall be paid to and become the property of Landlord. If this Lease
is terminated pursuant to either Section 10.3 or 10.4, all insurance proceeds available from
insurance carried by Tenant which cover loss of property that is Landlord’s property or would
become Landlord’s property on termination of this Lease shall be paid to and become the property of
Landlord, and the remainder of such proceeds shall be paid to
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and become the property of Tenant. If
this Lease is not terminated pursuant to either Section 10.3 or 10.4, all insurance proceeds
available from insurance carried by Tenant which cover loss to property that is Landlord’s property
shall be paid to and become the property of Landlord, and all proceeds available from such
insurance which cover loss to property which would only become the property of Landlord upon the
termination of this Lease shall be paid to and remain the property of Tenant.
10.3 LANDLORD’S RIGHT TO TERMINATE: Landlord shall have the option to terminate this Lease in
the event any of the following occurs, which option may be exercised only by delivery to Tenant of
a written notice of election to terminate within thirty (30) days after the date of such damage or
destruction:
A. The Building is damaged by any peril covered by valid and collectible insurance actually
carried by Landlord and in force at the time of such damage or destruction (an “insured peril”) to
such an extent that the estimated cost to restore the Building exceeds the lesser of (i) the
insurance proceeds available from insurance actually carried by Landlord plus any deductibles, or
(ii) seventy-five percent (75%) of the then actual replacement cost thereof;
B. The Building is damaged by an uninsured peril, which peril Landlord was required to insure
against pursuant to the provisions of Article 9 of this Lease, to such an extent that the estimated
cost to restore the Building exceeds the lesser of (i) the insurance proceeds which would have been
available had Landlord carried such required insurance, or (ii) seventy-five percent (75%) of the
then actual replacement cost thereof;
C. The Building is damaged by an uninsured peril, which peril Landlord was not required to
insure against pursuant to the provisions of Article 9 of this Lease to any extent and (i) the
estimated cost to restore the Building exceeds One Hundred Thousand Dollars ($100,000) and (ii)
Tenant has not agreed in writing to pay all costs to restore the Building in excess of One Hundred
Thousand Dollars ($100,000). In the event Tenant has agreed in writing to pay all costs to restore
the Building in excess of One Hundred Thousand Dollars ($100,000), Tenant shall provide to
Landlord, within ten (10) business days following any such damage, a cash deposit or
letter of credit for such work, which deposit or letter of credit shall be an amount to cover
the estimated cost to restore the Building as determined in Landlord’s sole discretion. Any letter
of credit so delivered to Landlord shall meet the requirements of Section 3.7(A) above.
D. The Building is damaged by any peril and, because of the Laws then in force, the Building
(i) can not be restored at reasonable cost or (ii) if restored, can not be used for the same use
being made thereof before such damage.
10.4 TENANT’S RIGHT TO TERMINATE: If the Leased Premises, the Building or the Outside Areas
are damaged by any peril and Landlord does not elect to terminate this Lease or is not entitled to
terminate this Lease pursuant to this Article, then as soon as reasonably practicable, Landlord
shall furnish Tenant with the written opinion of Landlord’s architect or construction consultant as
to when the restoration work required of Landlord may be complete. Tenant shall have the option to
terminate this Lease in the event any of the following occurs, which option may be exercised in the
case of A or B below only by delivery to Landlord of a written notice of election to terminate
within seven days after Tenant receives from Landlord the estimate of the time needed to complete
such restoration:
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A. The Leased Premises are damaged by any peril and, in the reasonable opinion of Landlord’s
architect or construction consultant, the restoration of the Leased Premises cannot be
substantially completed within nine (9) months after the date of such notice from Landlord; or
B. The Leased Premises are damaged by any peril within twelve (12) months of the last day of
the Lease Term and, in the reasonable opinion of Landlord’s architect or construction consultant,
the restoration of the Leased Premises cannot be substantially completed within ninety (90) days
after the date such restoration is commenced.
10.5 TENANT’S WAIVER: Landlord and Tenant agree that the provisions of Section 10.4 above,
captioned “Tenant’s Right to Terminate”, are intended to supersede and replace the provisions
contained in California Civil Code, Section 1932, Subdivision 2, and California Civil Code, Section
1934, and accordingly, Tenant hereby waives the provisions of said Civil Code Sections and the
provisions of any successor Code Sections or similar laws hereinafter enacted.
10.6 ABATEMENT OF RENT: In the event of damage to the Leased Premises which does not result in
the termination of this Lease, the Base Monthly Rent (and any Additional Rent) shall be temporarily
abated during the period of restoration in proportion to the degree to which Tenant’s use of the
Leased Premises is impaired by such damage.
ARTICLE 11
CONDEMNATION
CONDEMNATION
11.1 TENANT’S RIGHT TO TERMINATE: Except as otherwise provided in Section 11.4 below regarding
temporary takings, Tenant shall have the option to terminate this Lease if, as a result of any
taking, (i) all of the Leased Premises is taken, (ii) thirty-three and one-third percent (33.33%)or
more of the Leased Premises is taken and the part of the Leased Premises that remains cannot,
within a reasonable period of time, be made reasonably suitable for the continued operation of
Tenant’s business, or (iii) there is a taking of a portion of the Outside Areas and, as a result of
such taking, Landlord cannot provide parking spaces within the Property
(or within a reasonable distance therefrom) equal in number to at least sixty-six and
two-thirds (66.66%) percent of the number of parking spaces existing within the Outside Areas
immediately prior to such taking, whether by rearrangement of the remaining parking areas in the
Outside Areas (including, if Landlord elects, construction of multi-deck parking structures or
restriping for compact cars where permitted by Law). Tenant must exercise such option within a
reasonable period of time, to be effective on the later to occur of (i) the date that possession of
that portion of the Leased Premises or the Outside Areas that is condemned is taken by the
condemner or (ii) the date Tenant vacated the Leased Premises.
11.2 LANDLORD’S RIGHT TO TERMINATE: Except as otherwise provided in Section 11.4 below
regarding temporary takings, Landlord shall have the option to terminate this Lease if, as a result
of any taking, (i) all or a substantial part of the Leased Premises is taken, (ii) more than
thirty-three and one-third percent (33.33%) of the Outside Areas is taken, or (iii) because of the
Laws then in force, the Leased Premises may not be used for the same use being made thereof before
such taking, whether or not restored as required by Section 11.3 below. Any, such option to
terminate by Landlord must be exercisable within a reasonable period of time, to be effective as of
the date possession is taken by the condemner.
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11.3 RESTORATION: If any part of the Leased Premises, the Building or the Outside Areas is
taken and this Lease is not terminated, then Landlord shall repair any damage occasioned thereby to
the remainder thereof to a condition reasonably suitable for Tenant’s continued operations and
otherwise, to the extent practicable, in the manner and to the extent provided in Section 10.1.
11.4 TEMPORARY TAKING: If any portion of the Leased Premises is temporarily taken for a period
of six (6) months or less and such period does not extend beyond the Lease Expiration Date, this
Lease shall remain in effect. If any portion of the Leased Premises is temporarily taken for a
period which either exceeds six (6) months or which extends beyond the Lease Expiration Date, then
Landlord and Tenant shall each independently have the option to terminate this Lease, effective on
the date possession is taken by the condemner.
11.5 DIVISION OF CONDEMNATION AWARD: Any award made for any taking of the Property, the
Building, the Outside Areas or the Leased Premises, or any portion thereof, shall belong to and be
paid to Landlord, and Tenant hereby assigns to Landlord all of its right, title and interest in any
such award; provided, however, that Tenant shall be entitled to receive any portion of the award
that is made specifically (i) for the taking of personal property, inventory or trade fixtures
belong to Tenant, (ii) for the interruption of Tenant’s business or its moving costs, (iii) for
loss of Tenant’s goodwill, or (iv) for any temporary taking where this Lease is not terminated as a
result of such taking. The rights of Landlord and Tenant regarding any condemnation shall be
determined as provided in this Article, and each party hereby waives the provisions of Section
1265.130 of the California Code of Civil Procedure, and the provisions of any similar law
hereinafter enacted, allowing either party to petition the Superior Court to terminate this Lease
and/or otherwise allocate condemnation awards between Landlord and Tenant in the event of a taking
of the Leased Premises.
11.6 ABATEMENT OF RENT: In the event of a taking of the Leased Premises which does not result
in a termination of this Lease (other than a temporary taking), then, as of the date possession is
taken by the condemning authority, the Base Monthly Rent shall be reduced in the
same proportion that the area of that part of the Leased Premises so taken (less any addition
to the area of the Leased Premises by reason of any reconstruction) bears to the area of the Leased
Premises immediately prior to such taking.
11.7 TAKING DEFINED: The term “taking” or “taken” as used in this Article 11 shall mean any
transfer or conveyance of all or any portion of the Property to a public or quasi-public agency or
other entity having the power of eminent domain pursuant to or as a result of the exercise of such
power by such an agency, including any inverse condemnation and/or any sale or transfer by Landlord
of all or any portion of the Property to such an agency under threat of condemnation or the
exercise of such power.
ARTICLE 12
DEFAULT AND REMEDIES
12.1 EVENTS OF TENANT’S DEFAULT: Tenant shall be in default of its obligations under this
Lease if any of the following events occur:
A. Tenant shall have failed to pay Base Monthly Rent or any Additional Rent when due; provided
however, Landlord shall provide Tenant three (3) days’ written notice to pay any late
34
payment of
Base Monthly Rent or Additional Rent before such failure to pay shall be deemed a default
hereunder; or
B. Tenant shall have failed to renew any letter of credit Security Deposit within thirty (30)
days before the expiration thereof; or
C. Tenant shall have done or permitted to have been done any act, use or thing in its use,
occupancy or possession of the Leased Premises or the Building or the Outside Areas which is
prohibited by the terms of this Lease; or
D. Tenant shall have failed to perform any other term, covenant or condition of this Lease,
within ten (10) days after written notice from Landlord to Tenant specifying the nature of such
failure and requesting Tenant to perform same; provided however, in the event such term, covenant
or condition can not, by its nature, be completed within such ten (10) day period, so long as
Tenant is diligently pursuing the cure thereof, Tenant shall not be in default under this Section
12(C) until forty-five (45) days following Tenant’s receipt of the original notice from Landlord.
Notwithstanding anything to the contrary set forth herein, the provisions of this Section 12(C)
shall not apply to the payment of Base Monthly Rent or Additional Rent, the failure to renew any
letter of credit Security Deposit or with respect to (D) below.
E. Tenant shall have sublet the Leased Premises or assigned or encumbered its interest in this
Lease in violation of the provisions contained in Article 7, whether voluntarily or by operation of
Law; or
F. Tenant shall have failed to continuously occupy the Leased Premises for a period of ten
(10) consecutive days and Tenant is in default with respect to any of its obligations hereunder,
beyond any applicable cure period; or
G. Tenant or any Guarantor of this Lease shall have permitted or suffered the sequestration or
attachment of, or execution on, or the appointment of a custodian or receiver
with respect to, all or any substantial part of the property or assets of Tenant (or such
Guarantor) or any property or asset essential to the conduct of Tenant’s (or such Guarantors)
business, and Tenant (or such Guarantor) shall have failed to obtain a return or release of the
same within thirty (30) days thereafter, or prior to sale pursuant to such sequestration,
attachment or levy, whichever is earlier; or
H. Tenant or any Guarantor of this Lease shall have made a general assignment of all or a
substantial part of its assets for the benefit of its creditors; or
I. Tenant or any Guarantor of this Lease shall have allowed (or sought) to have entered
against it a decree or order which: (i) grants or constitutes an order for relief, appointment of a
trustee, or confirmation or a reorganization plan under the bankruptcy laws of the United States;
(ii) approves as properly filed a petition seeking liquidation or reorganization under said
bankruptcy laws or any other debtor’s relief law or similar statute of the United States or any
state thereof; or (iii) otherwise directs the winding up or liquidation of Tenant; provided,
however, if any decree or order was entered without Tenant’s consent or over Tenant’s objection,
Landlord may not terminate this Lease pursuant to this Section if such decree or order is rescinded
or reversed within thirty (30) days after its original entry.
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J. Tenant or any Guarantor of this Lease shall have availed itself of the protection of any
debtor’s relief law, moratorium law or other similar Law which does not require the prior entry of
a decree or order.
Tenant agrees that any notice given by Landlord pursuant to Paragraph 12.1 of the Lease shall
satisfy the requirements for notice under California Code of Civil Procedure Section 1161, and
Landlord shall not be required to give any additional notice in order to be entitled to commence an
unlawful detainer proceeding.
12.2 LANDLORD’S REMEDIES: In the event of any default by Tenant, and without limiting
Landlord’s right to indemnification as provided in Section 8.2, Landlord shall have the following
remedies, in addition to all other rights and remedies provided by Law or otherwise provided in
this Lease, to which Landlord may resort cumulatively, or in the alternative:
A. Landlord may, at Landlord’s election, keep this Lease in effect and enforce, by an action
at law or in equity, all of its rights and remedies under this Lease including, without limitation,
(i) the right to recover the rent and other sums as they become due by appropriate legal action,
(ii) the right to make payments required by Tenant, or perform Tenant’s obligations and be
reimbursed by Tenant for the cost thereof with interest at the then maximum rate of interest not
prohibited by Law from the date the sum is paid by Landlord until Landlord is reimbursed by Tenant,
and (iii) the remedies of injunctive relief and specific performance to prevent Tenant from
violating the terms of this Lease and/or to compel Tenant to perform its obligations under this
Lease, as the case may be.
B. Landlord may, at Landlord’s election, terminate this Lease by giving Tenant written notice
of termination, in which event this Lease shall terminate on the date set forth for termination in
such notice. Any termination under this Section shall not relieve Tenant from its obligation to pay
to Landlord all Base Monthly Rent and Additional Rent then or thereafter due, or any other sums due
or thereafter accruing to Landlord, or from any claim against Tenant for
damages previously accrued or then or thereafter accruing. In no event shall any one or more
of the following actions by Landlord, in the absence of a written election by Landlord to terminate
the Lease, constitute a termination of the Lease:
(1) Appointment of a receiver or keeper in order to protect Landlord’s interest hereunder;
(2) Consent to any subletting of the Leased Premises or assignment of this Lease by Tenant,
whether pursuant to the provisions hereof or otherwise; or
(3) Any other action by Landlord or Landlord’s agents intended to mitigate the adverse effects
of any breach of this Lease by Tenant, including, without limitation, any action taken to maintain
and preserve the Leased Premises or any action taken to relet the Leased Premises, or any portion
thereof, for the account of Tenant and in the name of Tenant.
C. In the event Tenant breaches this Lease and abandons the Leased Premises, Landlord may
terminate this Lease, but this Lease shall not terminate unless Landlord gives Tenant written
notice of termination. If Landlord does not terminate this Lease by giving written notice of
termination, Landlord may enforce all its rights and remedies under this Lease, including the
36
right
to recover rent as it becomes due under this Lease as provided in California Civil Code Section
1951.4, as in effect on the Effective Date of this Lease.
D. In the event Landlord terminates this Lease, Landlord shall be entitled, at Landlord’s
election, to damages in an amount as set forth in California Civil Code Section 1951.2, as in
effect on the Effective Date of this Lease. For purposes of computing damages pursuant to Section
1951.2, an interest rate equal to the maximum rate of interest then not prohibited by Law shall be
used where permitted. Such damages shall include, without limitation:
(1) 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 such rental loss that Tenant proves could be
reasonably avoided, computed by discounting such amount at the discount rate of the Federal Reserve
Bank of San Francisco, at the time of award plus one percent; and
(2) Any other amount necessary to compensate Landlord for all detriment proximately caused by
Tenant’s failure to perform Tenant’s obligations under this Lease, or which in the ordinary course
of things would be likely to result therefrom, including without limitation, the following: (i)
expenses for cleaning, repairing or restoring the Leased Premises; (ii) expenses for altering,
remodeling or otherwise improving the Leased Premises for the purpose of reletting, including
removal of existing leasehold improvements and/or installation of additional leasehold improvements
(regardless of how the same is funded, including reduction of rent, a direct payment or allowance
to a new tenant, or otherwise); (iii) broker’s fees, advertising costs and other expenses of
reletting the Leased Premises; (iv) costs of carrying and maintaining the Leased Premises which
costs would have been billed to Tenant as Additional Rent had Tenant not defaulted and which
include but are not limited to taxes, insurance premiums, utility charges, landscape maintenance
costs, costs of maintaining electrical, plumbing and HVAC equipment and costs for providing
security; (v) expenses incurred in removing, disposing of and/or storing any of Tenant’s personal
property, inventory or trade fixtures remaining therein; (vi) attorneys’ fees, expert witness fees,
court costs and other reasonable expenses incurred by Landlord but not
limited to taxable costs) in retaking possession of the Leased Premises, establishing damages
hereunder, and re-leasing the Leased Premises; and (vii) any other expenses, costs or damages
otherwise incurred or suffered as a result of Tenant’s default.
12.3 LANDLORD’S DEFAULT AND TENANT’S REMEDIES: In the event Landlord fails to perform any of
its obligations under this Lease, Landlord shall nevertheless not be in default under the terms of
this Lease until such time as Tenant shall have first given Landlord written notice specifying the
nature of such failure to perform its obligations, and then only after Landlord shall have had a
reasonable period of time following its receipt of such notice within which to perform such
obligations. In the event of Landlord’s default as above set forth, then, and only then, Tenant
shall have the following remedies only:
A. Tenant may then proceed in equity or at law to compel Landlord to perform its obligations
and/or to recover damages proximately caused by such failure to perform (except as and to the
extent Tenant has waived its right to damages as provided in this Lease).
B. Tenant, at its option, may then cure any default of Landlord at Landlord’s cost. If,
pursuant to this Subarticle, Tenant reasonably pays any sum to any third party or does any act that
requires the payment of any sum to any third party at any time by reason of Landlord’s default, the
sum paid by, Tenant shall be immediately due from Landlord to Tenant at the time Tenant
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supplies
Landlord with an invoice therefor (provided such invoice sets forth and is accompanied by a written
statement of Tenant setting forth in reasonable detail the amount paid, the party to whom it was
paid, the date it was paid, and the reasons giving rise to such payment), together with interest
at twelve percent (12%) per annum from the date of such invoice until Tenant is reimbursed by
Landlord. Tenant may not offset such sums against any installment of rent due Landlord under the
terms of this Lease.
12.4 LIMITATION ON TENANT’S RECOURSE: If Landlord is a corporation, trust, partnership, joint
venture, unincorporated association, or other form of business entity, Tenant agrees that (i) the
obligations of Landlord under this Lease shall not constitute personal obligations of the officers,
directors, trustees, partners, joint venturers, members, owners, stockholders, or other principals
of such business entity and (ii) Tenant shall have recourse only to Landlord’s then equity
interest, if any, in the Property for the satisfaction of such obligations and not against the
assets of such officers, directors, trustees, partners, joint venturers, members, owners,
stockholders or principals (other than to the extent of their interest in the Property). Tenant
shall look exclusively to such equity interest of Landlord, if any, in the Property for payment and
discharge of any obligations imposed upon Landlord hereunder, and Landlord is hereby released and
relieved of any other obligations hereunder. Additionally, if Landlord is a partnership, then
Tenant covenants and agrees:
A. No partner of Landlord shall be sued or named as a party in any suit or action brought by
Tenant with respect to any alleged breach of this Lease (except to the extent necessary to secure
jurisdiction over the partnership and then only for that sole purpose);
B. No service of process shall be made against any partner of Landlord except for the sole
purpose of securing jurisdiction over the partnership; and
C. No writ of execution shall be levied against the assets of any partner of Landlord other
than to the extent of his interest in Property.
Tenant further agrees that each of the foregoing covenants and agreements shall be enforceable by
Landlord and by any partner of Landlord and shall be applicable to any actual or alleged
misrepresentation or non-disclosure made respecting this Lease or the Leased Premises or any actual
or alleged failure, default or breach of any covenant or agreement either expressly or implicitly
contained in this Lease or imposed by statute or at common law.
12.5 TENANT’S WAIVER: Landlord and Tenant agree that the provisions of Section 12.3 above are
intended to supersede and replace the provisions of California Civil Code Sections 1932(l), 1941
and 1942, and accordingly, Tenant hereby waives the provisions of California Civil Code Sections
1932(l), 1941 and 1942 and/or any similar or successor Law regarding Tenant’s right to terminate
this Lease or to make repairs and deduct the expenses of such repairs from the rent due under this
Lease. Tenant hereby waives any right of redemption or relief from forfeiture under the Laws of the
State of California, or under any other present or future Law, in the event Tenant is evicted or
Landlord takes possession of the Leased Premises by reason of any default by Tenant.
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ARTICLE 13
GENERAL PROVISIONS
13.1 TAXES ON TENANT’S PROPERTY: Tenant shall pay before delinquency any and all taxes,
assessments, license fees, use fees, permit fees and public charges of whatever nature or
description levied, assessed or imposed against Tenant or Landlord by a governmental agency arising
out of, caused by reason of or based upon Tenant’s estate in this Lease, Tenant’s ownership of
property, improvements made by Tenant to the Leased Premises or the Outside Areas, improvements
made by Landlord for Tenant’s use within the Leased Premises or the Outside Areas, Tenant’s use (or
estimated use) of public facilities or services or Tenant’s consumption (or estimated consumption)
of public utilities, energy, water or other resources. Upon demand by Landlord, Tenant shall
furnish Landlord with satisfactory evidence of these payments. If any such taxes, assessments, fees
or public charges are levied against Landlord, Landlord’s property, the Building or the Property,
or if the assessed value of the Building or the Property is increased by the inclusion therein of a
value placed upon same, then Landlord, after giving written notice to Tenant, shall have the right,
regardless of the validity thereof, to pay such taxes, assessment, fee or public charge and xxxx
Tenant, as Additional Rent, the amount of such taxes, assessment, fee or public charge so paid on
Tenant’s behalf. Tenant shall, within ten (10) days from the date it receives an invoice from
Landlord setting forth the amount of such taxes, assessment, fee or public charge so levied, pay to
Landlord, as Additional Rent, the amount set forth in said invoice. Failure by Tenant to pay the
amount so invoiced within said ten (10) day period shall be conclusively deemed a default by Tenant
under this Lease. Tenant shall have the right, and the Landlord’s full cooperation if Tenant is not
then in default under the terms of this Lease, to bring suit in any court of competent jurisdiction
to recover from the taxing authority the amount of any such taxes, assessment, fee or public charge
so paid.
13.2 HOLDING OVER: This Lease shall terminate without further notice on the Lease Expiration
Date (as set forth in Article 1). Any holding over by Tenant after expiration of the Lease Term
shall neither constitute a renewal nor extension of this Lease nor give Tenant any
rights in or to the Leased Premises except as expressly provided in this Article. Any such
holding over shall be deemed an unlawful detainer of the Leased Premises unless Landlord has
consented to same. Any such holding over to which Landlord has consented shall be construed to be a
tenancy from month to month, on the same terms and conditions herein specified insofar as
applicable, except that the Base Monthly Rent shall be increased to an amount equal to one hundred
fifty percent (150%) of the Base Monthly Rent payable during the last full month immediately
preceding such holding over.
13.3 SUBORDINATION TO MORTGAGES: This Lease is subject to and subordinate to all underlying
ground leases, mortgages and deeds of trust which affect the Building or the Property and which are
of public record as of the Effective Date of this Lease, and to all renewals, modifications,
consolidations, replacements and extensions thereof. However, if the lessor under any such ground
lease or any lender holding any such mortgage or deed of trust shall advise Landlord that it
desires or requires this Lease to be made prior and superior thereto, then, upon written request of
Landlord to Tenant, Tenant shall promptly execute, acknowledge and deliver any and all documents or
instruments which Landlord and such lessor or lender deem necessary or desirable to make this Lease
prior thereto. Tenant hereby consents to Landlord’s ground leasing the land underlying the Building
or the Property and/or encumbering the Building or the Property as security for future loans on
such terms as Landlord shall desire, all of which future ground leases, mortgages or deeds of trust
shall be subject to and subordinate to this Lease.
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However, if any lessor under any such future
ground lease or any lender holding such future mortgage or deed of trust shall desire or require
that this Lease be made subject to and subordinate to such future ground lease, mortgage or deed of
trust, then Tenant agrees, within ten (10) business days after Landlord’s written request therefor,
to execute, acknowledge and deliver to Landlord any and all documents or instruments requested by
Landlord or by such lessor or lender as may be necessary or proper to assure the subordination of
this Lease to such future ground lease, mortgage or deed of trust, but only if such lessor or
lender agrees to recognize Tenant’s rights under this Lease and agrees not to disturb Tenant’s
quiet possession of the Leased Premises so long as Tenant is not in default under this Lease. On
or before the Lease Commencement Date, Tenant shall execute the Subordination Agreement attached
hereto as Exhibit “C” with respect to Landlord’s current lender.
13.4 TENANT’S ATTORNMENT UPON FORECLOSURE: Tenant shall, upon request, attorn (i) to any
purchaser of the Building or the Property at any foreclosure sale or private sale conducted
pursuant to any security instrument encumbering the Building or the Property, (ii) to any grantee
or transferee designated in any deed given in lieu of foreclosure of any security interest
encumbering the Building or the Property, or (iii) to the lessor under any underlying ground lease
of the land underlying the Building or the Property, should such ground lease be terminated;
provided that such purchaser, grantee or lessor recognizes Tenant’s rights under this Lease.
13.5 MORTGAGEE PROTECTION: In the event of any default on the part of Landlord, Tenant will
give notice by registered mail to any Lender or lessor under any underlying ground lease who shall
have requested, in writing, to Tenant that it be provided with such notice, and Tenant shall offer
such Lender or lessor a reasonable opportunity to cure the default, including time to obtain
possession of the Leased Premises by power of sale or judicial foreclosure or other appropriate
legal proceedings if reasonably necessary to effect a cure.
13.6 ESTOPPEL CERTIFICATES: Tenant will, within ten (10) business days following any request
by Landlord, execute and deliver to Landlord an estoppel certificate (i) certifying that this Lease
is unmodified and in full force and effect, or, if modified, stating the nature of such
modification and certifying that this Lease, as so modified, is in full force and effect, (ii)
stating the date to which the rent and other charges are paid in advance, if any, (iii)
acknowledging that there are not, to Tenant’s knowledge, any uncured defaults on the part of
Landlord hereunder, or specifying such defaults if any are claimed, and (iv) certifying such other
information about this Lease as may be reasonably requested by Landlord, its Lender or prospective
lenders, investor or purchaser of the Building or the Property. Tenant’s failure to execute and
deliver such estoppel certificate within ten (10) days after Landlord’s request therefor shall be a
material default by Tenant under this Lease, and Landlord shall have all of the rights and remedies
available to Landlord as Landlord would otherwise have in the case of any other material default by
Tenant, including the right to terminate this Lease and xxx for damages proximately caused thereby,
it being agreed and understood by Tenant that Tenant’s failure to so deliver such estoppel
certificate in a timely manner could result in Landlord being unable to perform committed
obligations to other third parties which were made by Landlord in reliance upon this covenant of
Tenant. Landlord and Tenant intend that any statement delivered pursuant to this Article 13 may be
relied upon by any Lender or purchaser or prospective Lender or purchaser of the Building, the
Property, or any interest herein.
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13.7 TENANT’S FINANCIAL INFORMATION: If Tenant is not a publicly traded company, then Tenant
shall, within five (5) business days after Landlord’s request therefor deliver to Landlord a copy
of a current financial statement including an income statement for the most recent twelve (12)
month period and a balance sheet and any such other information reasonably requested by Landlord
regarding Tenant’s financial condition. Tenant acknowledges that Landlord is relying upon the
financial information provided to Landlord by Tenant prior to entering into this lease and the
information to be provided to Landlord by Tenant during the term of this Lease. Landlord shall be
entitled to disclose such financial statements or other information to its Lender, to any present
or prospective principal of or investor in Landlord, or to any prospective Lender or purchaser of
the Building, the Property or any portion thereof or interest therein. Any such financial statement
or other information which is marked “confidential” or company secrets” (or is otherwise similarly
marked by Tenant) shall be confidential and shall not be disclosed by Landlord to any third party
except as specifically provided in this Article, unless the same becomes a part of the public
domain without the fault of Landlord.
13.8 TRANSFER BY LANDLORD: Landlord and its successors in interest shall have the right to
transfer their interest in the Building, the Property, or any portion thereof at any time and to
any person or entity, provided such person or entity assume in writing the obligations of Landlord
under the Lease arising from and after the transfer date. In the event of any such transfer, the
Landlord originally named herein (and in the case of any subsequent transfer, the transferor), from
the date of such transfer, (i) shall be automatically relieved, without any further act by any
person or entity, of all liability for the performance of the obligations of the Landlord hereunder
which may accrue after the date of such transfer and (ii) shall be relieved of all liability for
the performance of the obligations of the Landlord hereunder which have accrued before the date of
transfer if its transferee agrees to assume and perform all such prior obligations of the Landlord
hereunder. Tenant shall attorn to any such transferee. After the date of any such transfer, the
term “Landlord” as used herein shall mean the transferee of such interest in the Building or the
Property.
13.9 FORCE MAJEURE: The obligations of each of the parties under this Lease (other than the
obligations to pay money) shall be temporarily excused if such party is prevented or delayed in
performing such obligation by reason of any strikes, lockouts or labor disputes; inability to
obtain labor, materials, fuels or reasonable substitutes therefor; governmental restrictions,
regulations, controls, action or inaction; civil commotion; inclement weather, fire or other acts
of God; or other causes (except financial inability) beyond the reasonable control of the party
obligated to perform (including acts or omissions of the other party) for a period equal to the
period of any such prevention, delay or stoppage.
13.10 NOTICES: Any notice required or desired to be given by a party regarding this Lease
shall be in writing and shall be personally served, or in lieu of personal service may be given by
(i) delivery by Federal Express, United Parcel Service or similar commercial carrier, (ii)
electronic fax transmission, or (iii) depositing such notice in the United States mail, postage
prepaid, addressed to the other party as follows:
A. If addressed to Landlord, to Landlord at its Address for Notices (as set forth in Article
1).
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B. If addressed to Tenant, to Tenant at its Address for Notices (as set forth in Article 1).
Any notice given by registered mail shall be deemed to have been given on the third (3rd) business
day after its deposit in the United States mail.
Any notice given by registered mail shall be deemed given on the date receipt was acknowledged to
the postal authorities. Any notice given by mail other than registered or certified mail shall be
deemed given only if received by the other party, and then on the date of receipt. Any notice
delivered by commercial carrier or by fax shall be deemed given on the date of confirmation of
delivery by the carrier or by electronic confirmation. Each party may, by written notice to the
other in the manner aforesaid, change the address to which notices addressed to it shall thereafter
be mailed.
13.11 ATTORNEYS FEES: In the event any party shall bring any action, arbitration proceeding or
legal proceeding alleging a breach of any provision of this Lease, to recover rent, to terminate
this Lease, or to enforce, protect, determine or establish any term or covenant of this Lease or
rights or duties hereunder of either party, the prevailing party shall be entitled to recover from
the non-prevailing party as a part of such action or proceeding, or in a separate action for that
purpose brought within one year from the determination of such proceeding, reasonable attorneys’
fees, expert witness fees, court costs and other reasonable expenses incurred by the prevailing
party. In the event that either party shall be required to retain counsel to enforce any provision
of this Lease as a result of the other party’s default in the performance of its obligations
hereunder, and if the defaulting party shall thereafter cure (or desire to cure) such default, the
non-defaulting party shall be conclusively deemed the prevailing party and the defaulting party
shall pay to the other party all attorneys’ fees, expert witness fees, court costs and other
reasonable expenses so incurred by the non-defaulting party promptly upon demand. Either party may
enforce this provision by either (i) requiring the defaulting party to pay such fees and costs as a
condition to curing its default or (ii) bringing a separate action to enforce such payment, it
being agreed by and between Landlord and Tenant that the defaulting party’s failure to pay such
fees and costs upon demand shall constitute a breach of this Lease.
13.12 DEFINITIONS: Any term that is given a special meaning by any provision in this Lease
shall, unless otherwise specifically stated, have such meaning whenever used in this Lease or in
any amendment hereto. In addition to the terms defined in Article 1, the following terms shall have
the following meanings:
A. REAL PROPERTY TAXES: The term “Real Property Tax” or “Real Property Taxes”
shall each mean (i) all taxes, assessments, levies and other charges of any kind or nature
whatsoever, general and special, foreseen and unforeseen (including all installments of principal
and interest required to pay any general or special assessments for public improvements and any
increases resulting from reassessments caused by any change in ownership or new construction), now
or hereafter imposed by any governmental or quasi-governmental authority or special district having
the direct or indirect power or tax or levy assessments, which are levied or assessed for whatever
reason against the Project or any portion thereof, or Landlord’s interest herein, or the fixtures,
equipment and other property of Landlord that is an integral part of the Project and located
thereon, or Landlord’s business of owning, leasing or managing the Project or the gross receipts,
income or rentals from the Project; (ii) all charges, levies or fees imposed by any governmental
authority against Landlord by reason of or based upon the use of or number of parking spaces within
the Project, the amount of public services or public utilities used or consumed (e.g. water, gas,
electricity, sewage or surface water disposal) at the Project, the
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number of persons employed by
tenants of the Project, the size (whether measured in area, volume, number of tenants or whatever)
or the value of the Project, or the type of use or uses conducted within the Project; and (iii) all
costs and fees (including attorneys’ fees) incurred by Landlord in contesting any Real Property Tax
and in negotiating with public authorities as to any Real Property Tax. If, at any time during the
Lease Term, the taxation or assessment of the Project prevailing as of the Effective Date of this
Lease shall be altered so that in lieu of or in addition to any Real Property Tax described above
there shall be levied, or imposed (whether by reason of a change in the method of taxation or
assessment, creation of a new tax or charge, or any other cause) an alternate, substitute, or
additional tax or charge (i) on the value, size, use or occupancy of the Project or Landlord’s
interest therein or (ii) on or measured by the gross receipts, income or rentals from the Project,
or on Landlord’s business of owning, leasing or managing the Project or (iii) computed in any
manner with respect to the operation of the Project, then any such tax or charge, however
designated, shall be included within the meaning of the terms “Real Property Tax” or ”Real Property
Taxes” for purposes of this Lease. If any Real Property Tax is partly based upon property or rents
unrelated to the Project, then only that part of such Real Property Tax that is fairly allocable to
the Project shall be included within the meaning of the terms “Real Property Tax” or “Real Property
Taxes.” Notwithstanding the foregoing, the terms “Real Property Tax” or “Real Property Taxes” shall
not include estate, inheritance, transfer, gift or franchise taxes of Landlord or the federal or
state income tax imposed on Landlord’s income from all sources.
B. LANDLORD’S INSURANCE COSTS: The term “Landlord’s Insurance Costs” shall mean the
costs to Landlord to carry and maintain the policies of fire and property damage insurance
including earthquake and flood for the Building and the Property and general liability insurance
required, or permitted, to be carried by Landlord pursuant to Article 9, together with any
deductible amounts paid by Landlord upon the occurrence of any insured casualty or loss; provided
however, that the deductible for earthquake insurance, if any, shall not exceed the deductibles for
Landlord’s fire and casualty policies.
C. PROPERTY MAINTENANCE COSTS: The term “Property Maintenance Costs” shall mean all
costs and expenses (except Landlord’s Insurance Costs and Real Property Taxes) paid or incurred by
Landlord in protecting, operating, maintaining, repairing and preserving the Property and all parts
thereof, including without limitation, (i) professional management fees (equal to three percent
(3%) of the annualized Base Monthly Rent), (ii) the amortizing portion of any costs incurred by
Landlord in the making of any modifications, alterations or improvements as set forth in Article 6,
which are so amortized during the Lease Term, (iii) costs of complying with governmental
regulations governing Tenant’s use of Hazardous Materials, and Landlord’s costs of monitoring
Tenant’s use of Hazardous Materials including fees charged by Landlord’s consultants to
periodically inspect the Premises and the Property, (iv) fees or other costs and expenses incurred
with respect to any Private Restrictions affecting the Property, to the extent such fees, costs and
expenses are not charged directly to Tenant, and (v) such other costs as may be paid or incurred
with respect to operating, maintaining and preserving the Property, such as repairing, replacing,
and resurfacing the exterior surfaces of the buildings (including roofs), repairing, replacing, and
resurfacing paved areas, repairing structural parts of the buildings, cleaning, maintaining,
restoring and/or replacing the interior of the Leased Premises both during the term of the Lease
and upon its termination, and maintaining, repairing, installing or replacing, electrical,
plumbing, sewer, drainage, heating, ventilating and air conditioning systems serving the buildings,
maintenance, repair, replacement or installation of lighting fixtures, directional or
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other signs
and signals, irrigation or drainage systems, trees, shrubs, materials, maintenance of all
landscaped areas, and depreciation and financing costs on maintenance and operating machinery and
equipment (if owned) and rental paid for such machinery and equipment (if leased). Notwithstanding
anything to the contrary contained herein, all Property Maintenance Costs that are capital in
nature (as reasonably determined by Landlord), including, without limitation, an eight percent (8%)
per annum, compounded annually, cost of money factor, shall be amortized by Landlord over the
useful life of such Property Maintenance Costs, as determined in accordance with generally accepted
accounting standards, and the monthly amortized cost of such modifications, alterations and
improvements as so amortized shall be considered a Property Maintenance Cost and charged to Tenant
as Additional Rent pursuant to Section 3.2(D) above and shall not be subject to the Maintenance
Costs Cap.
D. PROPERTY OPERATING EXPENSES: The term “Property Operating Expenses” shall mean and
include the all Real Property Taxes, plus all Landlord’s Insurance Costs, plus all the Property
Maintenance Costs.
E. LAW: The term “Law” shall mean any judicial decision and any statute, constitution,
ordinance, resolution, regulation, rule, administrative order, or other requirement of any
municipal, county, state, federal, or other governmental agency or authority having jurisdiction
over the parties to this Lease, the Leased Premises, the Building or the Property, or any of them
in effect either at the Effective Date of this Lease or at any time during the Lease Term,
including, without limitation, any regulation, order, or policy of any quasi-official entity or
body (e.g. a board of fire examiners or a public utility or special district).
F. LENDER: The term “Lender” shall mean the holder of any Note or other evidence of
indebtedness secured by the Property or any portion thereof.
G. PRIVATE RESTRICTIONS: The term “Private Restrictions” shall mean all recorded
covenants, conditions and restrictions, private agreements, easements, and any other recorded
instruments affecting the use of the Property, as they may exist from time to time.
H. RENT: The terms “rent” or “Rent” shall mean collectively Base Monthly Rent and all
Additional Rent.
13.13 GENERAL WAIVERS: One party’s consent to or approval of any act by the other party
requiring the first party’s consent or approval shall not be deemed to waive or render unnecessary
the first party’s consent to or approval of any subsequent similar act by the other party. No
waiver of any provision hereof or any breach of any provision hereof shall be effective unless in
writing and signed by the waiving party. The receipt by Landlord of any rent or payment with or
without knowledge of the breach of any other provision hereof shall not be deemed a waiver of any
such breach. No waiver of any provision of this Lease shall be deemed a continuing waiver unless
such waiver specifically states so in writing and is signed by both Landlord and Tenant. No delay
or omission in the exercise of any right or remedy accruing to either party upon any breach by the
other party under this Lease shall impair such right or remedy or be construed as a waiver of any
such breach theretofore or thereafter occurring. The waiver by either party of any breach of any
provision of this Lease shall not be deemed to be a waiver of any subsequent breach of the same or
any other provisions herein contained.
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13.14 ACCESS: Tenant shall have the right to access the Leased Premises and the Building
twenty-four (24) hours a day, seven (7) days a week.
13.15 Upon commencement of the Lease Term, Landlord shall convey to Tenant, at no additional
cost to Tenant, the personal property listed on Schedule 2 attached hereto (the “Personal
Property”), which Personal Property is currently located at the Premises. Such Personal Property
shall be conveyed to Tenant pursuant to a xxxx of sale and without warranty of title or use and
without warranty expressed or implied, as to merchantability and fitness for any purpose. Tenant
accepts the Personal Property in its as-is condition with all faults, without representation or
warranty by Landlord of any kind.
13.16 MISCELLANEOUS: Should any provision of this Lease prove to be invalid or illegal, such
invalidity or illegality shall in no way affect, impair or invalidate any other provision hereof,
and such remaining provisions shall remain in full force and effect. Time is of the essence with
respect to the performance of every provision of this Lease in which time of performance is a
factor. Any copy of this Lease which is executed by the parties shall be deemed an original for all
purposes. This Lease shall, subject to the provisions regarding assignment, apply to and bind the
respective heirs, successors, executors, administrators and assigns of Landlord and Tenant. The
term “party” shall mean Landlord or Tenant as the context implies. If Tenant consists of more than
one person or entity, then all members of Tenant shall be jointly and severally liable hereunder.
This Lease shall be construed and enforced in accordance with the Laws of the State in which the
Leased Premises are located. The language in all parts of this Lease shall in all cases be
construed as a whole according to its fair meaning, and not strictly for or against either Landlord
or Tenant. The captions used in this Lease are for convenience only and shall not be considered in
the construction or interpretation of any provision hereof. When the context of this Lease
requires, the neuter gender includes the masculine, the feminine, a partnership or corporation or
joint venture, and the singular includes the plural. The terms “must”, shall”, will”, and “agree”
are
mandatory. The term “may” is permissive. When a party is required to do something by this
Lease, it shall do so at its sole cost and expense without right of reimbursement from the other
party unless specific provision is made therefor. Where Tenant is obligated not to perform any act
or is not permitted to perform any act, Tenant is also obligated to restrain any others reasonably
within its control, including agents, invitees, contractors, subcontractors and employees, from
performing said act. Landlord shall not become or be deemed a partner or a join venture with Tenant
by reason of any of the provisions of this Lease.
ARTICLE 14
CORPORATE AUTHORITY,
BROKERS AND ENTIRE AGREEMENT
14.1 CORPORATE AUTHORITY: If Tenant is a corporation, each individual executing this Lease on
behalf of said corporation represents and warrants that Tenant is validly formed and duly
authorized and existing, that Tenant is qualified to do business in the State in which the Leased
Premises are located, that Tenant has the full right and legal authority to enter into this Lease,
that he or she is duly authorized to execute and deliver this Lease on behalf of Tenant in
accordance with the bylaws and/or a board of directors’ resolution of Tenant, and that this Lease
is binding upon Tenant in accordance with its terms. Tenant shall, within thirty (30) days after
execution of this Lease, deliver to Landlord a certified copy of the resolution of its board of
directors authorizing or ratifying the execution of this Lease, and if Tenant fails to do so,
Landlord at its sole election may elect to (i) extend the Lease Commencement Date by such
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number of
days that Tenant shall have delayed in so delivering such corporate resolution to Landlord or (ii)
terminate this Lease.
14.2 BROKERAGE COMMISSIONS: Tenant warrants that it has not had any dealings with any real
estate broker(s), leasing agent(s), finder(s) or salesmen, other than the Brokers (as named in
Article 1) with respect to the lease by it of the Leased Premises pursuant to this Lease, and that
it will indemnify, defend with competent counsel, and hold Landlord harmless from any liability for
the payment of any real estate brokerage commissions, leasing commissions or finder’s fees claimed
by any other real estate broker(s), leasing agent(s), finder(s), or salesmen to be earned or due
and payable by reason of Tenant’s agreement or promise implied or otherwise) to pay (or to have
Landlord pay) such a commission or finder’s fee by reason of its leasing the Leased Premises
pursuant to this Lease.
14.3 ENTIRE AGREEMENT: This Lease and the Exhibits (as described in Article 1), which Exhibits
are by this reference incorporated herein, constitute the entire agreement between the parties, and
there are no other agreements, understandings or representations between the parties relating to
the lease by Landlord of the Leased Premises to Tenant, except as expressed herein. No subsequent
changes, modifications or additions to this Lease shall be binding upon the parties unless in
writing and signed by both Landlord and Tenant.
14.4 LANDLORD’S REPRESENTATIONS: Tenant acknowledges that neither Landlord nor any of its
agents made any representation or warranties respecting the Project, the Building or the Leased
Premises, upon which Tenant relied in entering into this Lease, which are not expressly set forth
in this Lease. Tenant further acknowledges that neither Landlord nor any of its agents made any
representations as to (i) whether the Leased Premises may be used for Tenant’s intended use under
existing Law, or (ii) the suitability of the Leased Premises for the
conduct of Tenant’s business, or (iii) the exact square footage of the Leased Premises, and
that Tenant relied solely upon its own investigations respecting said matters. Tenant expressly
waives any and all claims for damage by reason of any statement, management, representation,
warranty, promise or other agreement of Landlord or Landlord’s agent(s), if any, not contained in
this Lease.
[signature page follows]
46
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the respective dates
below set forth with the intent to be legally bound thereby as of the Effective Date of this Lease
first above set forth.
AS LANDLORD: | AS TENANT: | |||||||||||
JER BAYSIDE, LLC,
a Delaware limited liability company |
0ASYST TECHNOLOGIES, INC., a California corporation | |||||||||||
By: | JER Bayside Member, LLC, | |||||||||||
a Delaware limited liability company | By: | /s/ Xxxxxxx X. Xxxxxxxx | ||||||||||
Its: |
Sole Member | Xxxxxxx X. Xxxxxxxx | ||||||||||
Chairman, Chief Executive Officer, and | ||||||||||||
President | ||||||||||||
By: | JER Bayside Investor, LLC, | |||||||||||
a Delaware limited liability company | ||||||||||||
Its: | Member /s/ Xxxxx Xxxxx | By: | /s/ Xxxxxx X. Xxxx | |||||||||
By: | Xxxxx Xxxxx | Xxxxxx X. Xxxx | ||||||||||
Its: | Vice President | Chief Financial Officer | ||||||||||
By: | TMG Bayside, LLC, a Delaware limited liability company |
|||||||||||
Its: | Administrative Member | |||||||||||
By: | TMG Partners, a California corporation | |||||||||||
Its: | Managing Member | |||||||||||
By: | /s/ Xxxx Xxxxx | |||||||||||
Its: | Xxxx Xxxxx SVP |
If Tenant is a CORPORATION, the authorized officers must sign on behalf of the corporation and
indicate the capacity in which they are signing. This Lease must be executed by the chairman of the
board, president or vice-president, and the secretary, assistant secretary, the chief financial
officer or assistant treasurer, unless the bylaws or a resolution of the board of directors shall
otherwise provide, in which event a certified copy, of the bylaws or a certified copy of the
resolution, as the case may be, must be attached to this Lease.
47
Exhibit “A” Site Plan
![(SITE PLAN)](https://www.sec.gov/Archives/edgar/data/909326/000089161806000057/f16776f1677601.gif)
Page 1 of 1
Exhibit
“B” Floor Plan
![(FLOOR PLAN)](https://www.sec.gov/Archives/edgar/data/909326/000089161806000057/f16776f1677602.gif)
Page 1 of 1
EXHIBIT C
RECORDING REQUESTED BY AND
AFTER RECORDING, RETURN TO:
Xxxxxxx Xxxxxxxx & Wood LLP
00 Xxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
00 Xxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
SPACE ABOVE THIS LINE RESERVED FOR RECORDER’S USE
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
This Subordination, Non-Disturbance and Attornment Agreement (“Agreement”), is made as
of this ___day of ___, 200___among BARCLAYS CAPITAL REAL ESTATE INC., a Delaware
corporation (together with its successors, assigns and/or affiliates, “Lender”),
___, a ___(“Landlord”), and ___, a
___(“Tenant”).
Background
A. Lender has agreed to make a loan to Landlord (such loan may be made by Lender or one of its
affiliates which is a designee of Lender) in the original principal amount $___
(“Loan”), which will be secured by a mortgage, deed of trust or similar security instrument
(either, “Security Instrument”) on Landlord’s property described more particularly on
Exhibit A attached hereto (“Property”).
B. Tenant is the present lessee under that certain lease agreement between Landlord and Tenant
dated ___, as thereafter modified and supplemented (“Lease”), demising a
portion of the Property described more particularly in the Lease (“Leased Space”).
C. A requirement of the Loan is that Tenant’s Lease be subordinated to the Security
Instrument. Landlord has requested Tenant to so subordinate the Lease in exchange for Lender’s
agreement not to disturb Tenant’s possession of the Leased Space upon the conditions set forth in
this Agreement.
NOW, THEREFORE, in consideration of the mutual promises of this Agreement, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. Subordination. Tenant agrees that the Lease and all of the terms, covenants and
provisions thereof, and all estates, options and rights created under the Lease, hereby are
subordinated and made subject to the lien and effect of the Security Instrument (including,
Loan Number:
without limitation, all renewals, increases, modifications, spreaders, consolidations,
replacements and extensions thereof), as if the Security Instrument had been executed and recorded
prior to the Lease.
2. Nondisturbance. Lender agrees that no foreclosure (whether judicial or
nonjudicial), deed-in-lieu of foreclosure, or other sale of the Property in connection with
enforcement of the Security Instrument or otherwise in satisfaction of the Loan shall operate to
terminate the Lease or Tenant’s rights thereunder to possess and use the Leased Space provided,
however, that (a) the term of the Lease has commenced, (b) Tenant is in possession of the Leased
Space, and (c) the Lease is in full force and effect and no uncured default exists under the Lease.
3. Attornment. Tenant agrees to attorn to and recognize as its landlord under the
Lease each party acquiring legal title to the Property by foreclosure (whether judicial or
nonjudicial) of the Security Instrument, deed-in-lieu of foreclosure, or other sale in connection
with enforcement of the Security Instrument or otherwise in satisfaction of the Loan
(“Successor Owner”). Provided that the conditions set forth in Section 2 above are met at
the time Successor Owner becomes owner of the Property, Successor Owner shall perform all
obligations of the landlord under the Lease arising from and after the date title to the Property
is transferred to Successor Owner. In no event, however, will any Successor Owner be: (a) liable
for any default, act or omission of any prior landlord under the Lease; (b) subject to any offset
or defense which Tenant may have against any prior landlord under the Lease; (c) bound by any
payment of rent or additional rent made by Tenant to Landlord more than 30 days in advance; (d)
bound by any modification or supplement to the Lease, or waiver of Lease terms, made without
Lender’s written consent thereto; (e) liable for the return of any security deposit or other
prepaid charge paid by Tenant under the Lease, except to the extent such amounts were actually
received by Lender; (f) liable or bound by any right of first refusal or option to purchase all or
any portion of the Property; or (g) liable for construction or completion of any improvements to
the Property or as required under the Lease for Tenant’s use and occupancy (whenever arising).
Although the foregoing provisions of this Agreement are self-operative, Tenant agrees to execute
and deliver to Lender or any Successor Owner such further instruments as Lender or a Successor
Owner may from time to time request in order to confirm this Agreement. If any liability of
Successor Owner does arise pursuant to this Agreement, such liability shall be limited to Successor
Owner’s interest in the Property.
4. Prior Assignment; Rent Payments; Notice to Tenant Regarding Rent Payments. Tenant
has no knowledge of any prior assignment or pledge of the rents accruing under the Lease by
Landlord. Tenant hereby consents to that certain Assignment of Leases and Rents from Landlord to
Lender executed in connection with the Loan. Tenant acknowledges that the interest of the Landlord
under the Lease is to be assigned to Lender solely as security for the purposes specified in said
assignment, and Lender shall have no duty, liability or obligation whatsoever under the Lease or
any extension or renewal thereof, either by virtue of said assignments or by any subsequent receipt
or collection of rents thereunder, unless Lender shall specifically undertake such liability in
writing. Tenant agrees not to pay rent more than one (1) month in advance unless otherwise
specified in the Lease. After notice is given to Tenant by Lender that Landlord is in default
under the Security Instrument and that the rentals under the Lease are to be paid to Lender
directly pursuant to the assignment of leases and rents granted by Landlord to Lender in connection
therewith, Tenant shall thereafter pay to Lender all rent and all
2
Loan Number:
other amounts due or to become due to Landlord under the Lease. Landlord hereby expressly
authorizes Tenant to make such payments to Lender upon reliance on Lender’s written notice (without
any inquiry into the factual basis for such notice or any prior notice to or consent from Landlord)
and hereby releases Tenant from all liability to Landlord in connection with Tenant’s compliance
with Lender’s written instructions.
5. Lender Opportunity to Cure Landlord Defaults. Tenant agrees that, until the
Security Instrument is released by Lender, it will not exercise any remedies under the Lease
following a Landlord default without having first given to Lender (a) written notice of the alleged
Landlord default and (b) the opportunity to cure such default within the longer of (i) 30 days
after the cure period provided under the Lease to Landlord, (ii) 30 days from Landlord’s receipt of
Tenant’s notice to Lender of a Landlord default, or (iii) if the cure of such default requires
possession of the Property, 30 days after Lender has obtained possession of the Property; provided
that, in each case, if such default cannot reasonably be cured within such 30-day period and Lender
has diligently commenced to cure such default promptly within the time contemplated by this
Agreement, such 30-day period shall be extended for so long as it shall require Lender, in the
exercise of due diligence, to cure such default, but, unless the parties otherwise agree, in no
event shall the entire cure period be more than 120 days. Tenant acknowledges that Lender is not
obligated to cure any Landlord default, but if Lender elects to do so, Tenant agrees to accept cure
by Lender as that of Landlord under the Lease and will not exercise any right or remedy under the
Lease for a Landlord default. Performance rendered by Lender on Landlord’s behalf is without
prejudice to Lender’s rights against Landlord under the Security Instrument or any other documents
executed by Landlord in favor of Lender in connection with the Loan.
6. Right to Purchase. Tenant covenants and acknowledges that it has no right or
option of any nature whatsoever, whether pursuant to the Lease or otherwise, to purchase the
Property or the real property of which the Property is a part, or any portion thereof or any
interest therein and to the extent that Tenant has had, or hereafter acquires any such right or
option, the same is hereby acknowledged to be subject and subordinate to the Security Instrument
and is hereby waived and released as against Lender.
7. Miscellaneous.
(a) Notices. All notices and other communications under this Agreement are to be in
writing and addressed as set forth below such party’s signature hereto. Default or demand notices
shall be deemed to have been duly given upon the earlier of: (i) actual receipt; (ii) one (1)
business day after having been timely deposited for overnight delivery, fee prepaid, with a
reputable overnight courier service, having a reliable tracking system; (iii) one (1) business day
after having been sent by telecopier (with answer back acknowledged) provided an additional notice
is given pursuant to (ii); or (iv) three (3) business days after having been deposited in any post
office or mail depository regularly maintained by the U.S. Postal Service and sent by certified
mail, postage prepaid, return receipt requested, and in the case of clause (ii) and (iv)
irrespective of whether delivery is accepted. A new address for notice may be established by
written notice to the other parties; provided, however, that no address change will be effective
until written notice thereof actually is received by the party to whom such address change is sent.
3
Loan Number:
(b) Entire Agreement; Modification. This Agreement is the entire agreement between
the parties hereto with respect to the subject matter hereof, and supersedes and replaces all prior
discussions, representations, communications and agreements (oral or written). This Agreement
shall not be modified, supplemented, or terminated, nor any provision hereof waived, except by a
written instrument signed by the party against whom enforcement thereof is sought, and then only to
the extent expressly set forth in such writing.
(c) Binding Effect; Joint and Several Obligations. This Agreement is binding upon and
inures to the benefit of the parties hereto and their respective heirs, executors, legal
representatives, successors, and assigns, whether by voluntary action of the parties or by
operation of law. No Indemnitor may delegate or transfer its obligations under this Agreement.
(d) Unenforceable Provisions. Any provision of this Agreement which is determined by
a court of competent jurisdiction or government body to be invalid, unenforceable or illegal shall
be ineffective only to the extent of such determination and shall not affect the validity,
enforceability or legality of any other provision, nor shall such determination apply in any
circumstance or to any party not controlled by such determination.
(e) Duplicate Originals; Counterparts. This Agreement may be executed in any number
of duplicate originals, and each duplicate original shall be deemed to be an original. This
Agreement (and each duplicate original) also may be executed in any number of counterparts, each of
which shall be deemed an original and all of which together constitute a fully executed Agreement
even though all signatures do not appear on the same document.
(f) Construction of Certain Terms. Defined terms used in this Agreement may be used
interchangeably in singular or plural form, and pronouns shall be construed to cover all genders.
Article and section headings are for convenience only and shall not be used in interpretation of
this Agreement. The words “herein,” “hereof” and “hereunder” and other words of similar import
refer to this Agreement as a whole and not to any particular section, paragraph or other
subdivision; and the word “section” refers to the entire section and not to any particular
subsection, paragraph of other subdivision; and “Agreement” and each of the Loan Documents referred
to herein mean the agreement as originally executed and as hereafter modified, supplemented,
extended, consolidated, or restated from time to time.
(g) Governing Law. This Agreement shall be interpreted and enforced according to the
laws of the State where the Property is located (without giving effect to its rules governing
conflict of laws).
(h) Consent to Jurisdiction. Each party hereto irrevocably consents and submits to the
exclusive jurisdiction and venue of any state or federal court sitting in the county and state
where the Property is located with respect to any legal action arising with respect to this
Agreement and waives all objections which it may have to such jurisdiction and venue.
(i)
WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY HERETO
WAIVES AND AGREES NOT TO ELECT A TRIAL BY JURY WITH RESPECT TO ANY ISSUE ARISING OUT OF THIS
AGREEMENT.
[Remainder of page is blank; signatures appear on next page.]
4
IN WITNESS WHEREOF, this Agreement is executed this ___day of ___, 200___.
TENANT: |
|
[insert Tenant’s name] |
By:
|
||||
Name: | ||||
Title: |
Tenant Notice Address: | ||||
Attn: |
[Signatures continue on next page.]
LANDLORD: |
[insert Landlord’s name] |
By: |
||||
Name: | ||||
Title: |
Tenant Notice Address: | ||||||
Attn: |
[Signatures continue on next page.]
LENDER:
BARCLAYS CAPITAL REAL ESTATE INC.
By: |
||||
Name: | ||||
Title: |
Lender Notice Address:
Barclays Capital Real Estate Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: CMBS Servicing
Barclays Capital Real Estate Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: CMBS Servicing
Notary Acknowledgement for Tenant:
STATE OF
|
) | |||||
) | ss.: | |||||
COUNTY OF
|
) |
On this, the ___day of ___, 20___, before me, the undersigned Notary Public,
personally appeared ___known to me (or satisfactorily proven) to be
the person whose name is subscribed to the within instrument and who acknowledged to me that he/she
is an officer of ___in the capacity stated and that he/she executed the within
instrument in such capacity for the purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
Notary Public |
Notary Acknowledgement for Landlord:
STATE OF
|
) | |||||
) | ss.: | |||||
COUNTY OF
|
) |
On this, the ___day of ___, 20___, before me, the undersigned Notary Public,
personally appeared ___known to me (or satisfactorily proven) to be
the person whose name is subscribed to the within instrument and who acknowledged to me that he/she
is an officer of ___in the capacity stated and that he/she executed the within
instrument in such capacity for the purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
Notary Public
Notary Public |
Notary Acknowledgement for Lender:
STATE OF
|
) | |||||
) ss.: | ||||||
COUNTY OF
|
) |
On this, the ___day of ___, 20___, before me, the undersigned Notary Public,
personally appeared ___known to me (or satisfactorily proven) to be
the person whose name is subscribed to the within instrument, and who acknowledged to me that
he/she is an officer of Barclays Capital Real Estate Inc. in the capacity stated and that he/she
executed the within instrument in such capacity for the purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
Notary Public |
Attach: Exhibit A — Legal Description of the Property
EXHIBIT D
TENANT IMPROVEMENT AGREEMENT
(also referred to as the “Work Letter”)
(also referred to as the “Work Letter”)
The undersigned, Landlord and Tenant, respectively, are executing simultaneously with this
Work Letter a written Industrial Space Lease covering premises as described in Exhibit A
thereto (hereinafter referred to as the “Leased Premises” or the “Premises”)
comprising a portion of a Building commonly known as Building 48 and located at 00000 Xxxxxxx
Xxxxxxx, Xxxxxxx, Xxxxxxxxxx (the “Lease”), and hereby attach this Work Letter to the Lease
as Exhibit D thereto. Except as otherwise defined in this Exhibit D, all
capitalized terms used herein shall have meanings as defined in the Lease.
The purpose of this Work Letter is to delineate the responsibilities of Landlord and Tenant
with respect to the costs and construction of the initial interior improvements to the Leased
Premises (hereinafter referred to as the “Improvements”).
Section 1. Definitions.
1.1 For purposes of this Work Letter, the parties agree that the following terms shall have
the following meanings:
(a) “Tenant’s Architect” shall mean TDS Architects, Attention: Xxxxx Xxx, which
architect is duly licensed in California and approved by Landlord. Tenant’s Architect shall
contract directly with and be paid by Tenant, unless Tenant requests direct payment by
Landlord to Tenant’s Architect pursuant to Section 6.3 below.
(b) “Tenant’s Engineer” shall mean Q5 Engineering, Attention Xxxxx Xxxxxxxx,
or, an engineer selected by Tenant which is duly licensed in California and approved by
Landlord. Tenant’s Engineer shall contract with Tenant’s Architect.
(d) “General Contractor” shall mean Devcon Construction, which is duly licensed
in California and approved by Landlord. General Contractor shall contract with Tenant and
be paid by Tenant, unless Tenant requests direct payment by Landlord to General Contractor
pursuant to Section 6.3 below.
(f) “Design Development Drawings” shall mean the preliminary architectural
plans, drawings and specifications in sufficient detail to be used for the purpose of the
development of MEP Drawings and for review and approval by Landlord. The Design Development
Drawings shall in any event include partition and door location drawings, telephone and
electric drawings, and reflected ceiling drawings.
(g) “MEP Drawings” shall mean the sprinkler, air conditioning, heating,
electrical and plumbing drawings for the Premises.
(h) “Construction Drawings” shall mean the final architectural plans, drawings
and specifications along with fully coordinated MEP Drawings which are
1
suitable in all respects for submission to the Building Department of the City of
Fremont in order to obtain all necessary building permits. The Construction Drawings shall
indicate that such work will not exceed the design load capacities and performance criteria
of the Building, including, without limitation, its electrical, HVAC and weight capacities,
and shall include construction means and methods.
(i) “Construction Schedule” is attached hereto as Schedule 1.
Section 2. Plans and Specifications.
2.1. No work shall commence in the Leased Premises until: (i) the Lease is duly signed by
Tenant and Landlord, and (ii) Landlord gives written approval, which shall not be unreasonably
withheld, to Tenant’s Plans (as defined below) for the Improvements.
2.2. Subject to the provisions of Section 6 of this Work Letter, Tenant may engage, at
Tenant’s sole expense, Tenant’s Architect, which firm is hereby approved by Landlord. Tenant’s
Architect will promptly prepare the Design Development Drawings. Tenant will be responsible for
delivery of the Design Development Drawings to Landlord in accordance with the Construction
Schedule.
2.3. From the Design Development Drawings, Tenant will, through either Tenant’s Engineer or
the engineers from the appropriate design/build subcontractor, provide Landlord with mechanical and
electrical plans and related specifications which collectively comprise the MEP Drawings. Tenant
shall direct Tenant’s Engineer to provide to Landlord the MEP Drawings in accordance with the
Construction Schedule.
2.4. From the Design Development Drawings and the MEP Drawings, Tenant’s Architect shall
prepare the Construction Drawings. Tenant shall be responsible for delivery of the Construction
Drawings in accordance with the Construction Schedule. The Construction Drawings shall include
mechanical and electrical drawings and decorating plans showing the location of partitions,
reflected ceiling plans including light fixtures, electrical outlets, telephone outlets,
sprinklers, doors, wall finishes, floor coverings, and all other Improvements to be installed by
Tenant. The Design Development Drawings and Construction Drawings are referred to herein as
“Tenant’s Plans” and shall be approved by Landlord at Lease execution.
2.5. Tenant’s Plans shall be subject to Landlord’s approval, which approval shall not be
unreasonably withheld. Tenant shall provide Tenant’s Plans to Landlord and Landlord’s architect (as
specified by Landlord in writing to Tenant). Landlord shall approve Tenant’s Plans no later than
five (5) business days after receipt thereof by Landlord and Landlord’s architect. Should Landlord
have any reasonable revisions to Tenant’s Plans following Landlord’s review, such revisions shall
be requested in writing with Landlord’s preliminary approval of Tenant’s Plans. Five (5) business
days following Landlord’s preliminary approval, Tenant shall provide a response to Landlord’s
requested revisions. Landlord and Tenant shall use their best efforts to reach mutually agreeable
solutions to Landlord’s requested revisions no later than (5) business days following Landlord’s
receipt of Tenant’s response to Landlord’s requested revisions. If Landlord shall not respond
within ten (10) business days after receipt of any set of
2
Tenant’s Plans, such Plans shall be deemed approved by Landlord. The final plans and
specifications approved by Landlord shall be referred to as the “Final Plans”.
2.6. If Tenant shall require any material change, addition or alteration to the Final Plans,
Tenant’s Architect shall prepare and deliver to Landlord and Landlord’s architect, plans with
respect to such material change, addition or alteration. Within five (5) business days after
receipt thereof by Landlord and Landlord’s architect, Landlord shall notify Tenant if it approves
the revised Final Plans which set forth the requested material change, addition or alteration.
Landlord’s approval of the revised Final Plans shall not be unreasonably withheld, conditioned or
delayed. If Landlord approves the revised Final Plans, then Tenant shall instruct the General
Contractor to proceed as soon as reasonably practical thereafter. If Landlord does not approve
such additional plans, construction of the Premises shall proceed in accordance with the previously
approved Final Plans.
2.7. Although Landlord has the right to review, request revisions to and approve the Final
Plans, Landlord’s sole interest in doing so is to protect the Building and Landlord’s interest in
the Building, and Landlord is not in any way warranting or representing that Tenant’s Final Plans
are suitable for their intended use or comply with applicable laws and regulations. Landlord shall
have no liability whatsoever in connection with Tenant’s Final Plans, nor any responsibility for
any omissions or errors contained therein. Accordingly, Tenant shall not rely upon Landlord’s
approval for any purpose other than for the purpose of acknowledging the consent of Landlord to
proceed with the requested action, and Landlord shall incur no liability of any kind by reason of
the granting of such approvals.
Section 3. Removal of Improvements.
Upon the expiration or sooner termination of the Lease, Tenant shall not be required to remove
any of the Improvements.
Section 4. Construction of Improvements.
4.1 Provided that the Final Plans are approved by Landlord, Tenant shall cause the
Improvements to be installed by the General Contractor in accordance with the Construction
Schedule. Tenant shall substantially complete any and all Improvements to the Leased Premises in
accordance with the Final Plans. The Improvements shall be made and performed in a safe and
workmanlike manner, using only first-class materials, in accordance with the following provisions:
(a) No work with respect to the Improvements shall proceed without certificates of
insurance furnished to Landlord from a company or companies reasonably approved by Landlord
(i) by Tenant’s General Contractor, evidencing commercial general
liability insurance (with contractual liability and products and completed
operations coverages) with a minimum combined single limit for bodily injury
and property damage in an amount not less than Five Million Dollars
($5,000,000) per occurrence, endorsed to name Landlord, Landlord’s managing
agent and any other party designated by
3
Landlord as an additional insured, and workers’ compensation insurance,
as required by law; and
(ii) by Tenant evidencing builder’s risk insurance with respect to the
Improvements, in such amounts to cover the Improvements, and workers’
compensation insurance, as required by law.
(b) Except as otherwise expressly provided in Section 6 below, the Improvements shall
be undertaken at Tenant’s sole cost and expense and in strict conformance with all
applicable laws, regulations, building codes and the requirements of any building permit and
all other applicable permits or licenses issued with respect to such work. Tenant shall be
solely responsible for obtaining all such permits and licenses from the appropriate
governmental authorities, and any delay in obtaining such permits or licenses shall not be
deemed to extend the commencement date or the expiration date of the term of the Lease or to
waive or toll Tenant’s rental and other obligations with respect to the Premises. Copies of
all permits and licenses shall be furnished to Landlord before any work is commenced, and
any work not acceptable to any governmental authority or agency having or exercising
jurisdiction over such work, or not reasonably satisfactory to Landlord, shall be promptly
replaced and corrected at Tenant’s expense. Notwithstanding the foregoing, so long as
Tenant is diligently pursuing the issuance of any and all applicable permits and licenses
from the appropriate governmental authorities, Tenant may commence the following work before
the applicable permit or licenses shall have been obtained: rough framing, rough electrical,
HVAC, fire sprinkler and plumbing. In the event a permit or license is not secured from the
appropriate governmental authority for such work, Tenant, at it’s sole cost and expense,
shall remove such work and restore the Premises to the condition existing prior to such work
being performed. Tenant hereby assumes all risk and liability with respect to any work
performed prior to the issuance of the applicable permits and/or licenses from the
appropriate governmental authorities.
(c) All work by Tenant shall be performed pursuant to the Construction Schedule
provided to Landlord and shall be diligently and continuously pursued from the date of its
commencement through its completion. Landlord hereby agrees to use its reasonable efforts
to facilitate such work, subject, however, to the rules and regulations established by
Landlord for construction work in the Building. All work shall be conducted in a manner
that maintains harmonious labor relations. Landlord or Landlord’s agent shall have the
right to enter the Premises and inspect the Premises and the Improvements at all reasonable
times during the construction of the Improvements.
(d) All payments by Tenant for work done shall be conditioned upon Tenant’s and
Landlord’s receipt of (1) conditional lien waivers and releases upon progress payments,
executed by the General Contractor and relevant subcontractors, covering the full amount
disbursed through the date of the disbursement, (2) a conditional lien waiver and release
upon final payment covering the final payment amount, executed by the General Contractor and
such subcontractors and (3) delivery to Landlord of 2 copies of the final as-build plans
upon payment of the final payment.
4
Section 5. Completion of Improvements.
No delay in the completion of construction of the work described in this Work Letter shall be
considered in the determination of the Lease Commencement Date.
Section 6. Tenant Improvement Allowance.
6.1. As soon as reasonably feasible during the design period, but in no event later than
submission of Final Plans for Landlord, Tenant shall submit to Landlord for its review and approval
which shall not be unreasonably withheld a detailed cost breakdown of design and construction costs
for the Improvements (the “Construction Budget”). In the event that the Tenant requests
any changes to the Final Plans, Tenant shall submit a revised Construction Budget for Landlord’s
review and approval.
6.2. Subject to the terms and conditions of this Section 6, Landlord shall reimburse Tenant or
pay as set forth herein, up to a maximum amount of Four Million Five Hundred Seventy Nine Thousand
Eight Hundred Six and 50/100 Dollars ($4,579,806.50) (the “Tenant Improvement Allowance”)
for the construction of the Improvements, including without limitation, all architectural and
engineering fees incurred in connection therewith, permits and other fees payable to governmental
agencies, cabling, moving costs, signage, FF&E and consulting fees, and sums payable to Landlord in
connection herewith. To the extent Tenant does not use the entire Tenant Improvement Allowance,
any excess may be credited toward Base Monthly Rent owed during the initial twenty-four (24) months
of the Lease Term, which twenty-four (24) month period shall expire on March 15, 2008. Tenant
shall bear the cost of all Improvements in excess of the Tenant Improvement Allowance
(“Tenant’s Excess Costs”) and shall pay such excess as and when incurred; provided however,
if such Tenant’s Excess Costs are part of the Construction Budget submitted to Landlord with the
Final Plans, then the Tenant’s Excess Costs may be prorated with each payment of the Tenant
Improvement Allowance.
Landlord shall pay a share of each progress billing from the General Contractor, Tenant’s
Architect and Tenant’s Engineers determined by multiplying the amount of such billing by a
fraction, the numerator of which is the amount of the Tenant Improvement Allowance, and the
denominator of which is the sum of the estimated cost of all the Improvements as set forth on the
Construction Budget (as may be revised from time to time); provided however, Landlord will retain
an amount equal to ten percent (10%) of any such payment (the “Retained Amount”). The
Retained Amount shall be paid by Landlord to the General Contractor upon completion of the
Improvements and satisfaction of the conditions set forth in Section 6.3 below. Tenant shall pay
the balance of such progress billing as and when due, provided that at such time as Landlord has
paid the entire Tenant Improvement Allowance on account of the Improvements, all further xxxxxxxx
shall be paid entirely by Tenant as and when due. If upon completion of the Improvements in the
Leased Premises and payment in full of the Tenant Work, the portion of the costs theretofore paid
by Landlord is less than the Tenant Improvement Allowance, Landlord shall reimburse Tenant for its
pro-rata costs expended pursuant to this Section 6 by Tenant up to the amount by which the Tenant
Improvement Allowance exceeds the portion of such cost theretofore paid by Landlord, with any
remaining balance applied as set forth in Section 6.2 of the Lease. Except as expressly provided
herein, Landlord shall have no further obligation to disburse any additional monies to Tenant, with
respect to the Tenant Improvement Allowance,
5
the Improvements or the reimbursement under this Section 6.
6.3. Provided no default shall then exist under the Lease from and after the date hereof,
Landlord shall make advances to Tenant of the Tenant Improvement Allowance or, at the direction of
Tenant, shall pay the Tenant Improvement Allowance directly to the General Contractor, any
subcontractor, Tenant’s Architect or Tenant’s Engineer or other service provider, upon presentation
of invoices from Tenant or the person performing the work or rendering the service and such
reasonable supporting documentation as Landlord may reasonably require, including, without
limitation, mechanics’ lien releases and certificates of payment issued by the Tenant’s Architect.
Invoices that are submitted and approved by Landlord as of the fifteenth (15th) day of each month
shall be paid on or before the day which is thirty (30) days thereafter.
Section 7. Tenant’s Indemnity.
7.1. Tenant shall indemnify, defend and hold Landlord harmless from and against any and all
claims, liens, expenses, costs, losses, fines, liabilities and/or damages (including, without
limitation, attorneys’ fees and costs) arising out of or in any way connected with the construction
by Tenant of the Improvements, except caused by the gross negligence or willful misconduct of
Landlord.
6
IN WITNESS WHEREOF, the undersigned have executed this Exhibit D concurrently with the
execution of the Lease.
LANDLORD: | JER BAYSIDE, LLC, | |||||||||
a Delaware limited liability company | ||||||||||
By: | JER Bayside Member, LLC, | |||||||||
a Delaware limited liability company |
||||||||||
Its: | Sole Member | |||||||||
By: | JER Bayside Investor, LLC, a Delaware limited liability company |
|||||||||
Its: | Member | |||||||||
/s/ Xxxxx Xxxxx | ||||||||||
By: | Xxxxx Xxxxx | |||||||||
Its: | Vice President | |||||||||
By: | TMG Bayside, LLC, | |||||||||
a Delaware limited liability company | ||||||||||
Its: | Administrative Member | |||||||||
By: TMG Partners, | ||||||||||
a California corporation | ||||||||||
Its: | Managing Member | |||||||||
By: | /s/ Xxxx Xxxxx | |||||||||
Its: | Xxxx Xxxxx SVP | |||||||||
TENANT: | ASYST TECHNOLOGIES, INC. | |||||||||
a California corporation | ||||||||||
By: | /s/ Xxxxxx X. Xxxx | |||||||||
Xxxxxx X. Xxxx | ||||||||||
Chief Financial Officer | ||||||||||
By: | /s/ Xxxxxx Xxxxxx | |||||||||
Xxxxxx Xxxxxx Assistant Secretary |
7
SCHEDULE 1
DATE | ITEM | |
Design Development Drawings will be completed and delivered by Tenant’s Architect. | ||
Landlord will give Tenant its approval of the Design Development Drawings or its comments and revisions necessary | ||
for its approval to be granted. | ||
MEP Drawings will be completed and delivered by Tenant’s Engineer. | ||
Construction Drawings are completed and delivered by Tenant’s Architect | ||
Tenant will issue Construction Drawings for bidding and apply for permits. | ||
Bids will be due back. | ||
Final budget and construction schedule will be established. | ||
Construction commences. | ||
Substantial completion of the Tenant Improvements. Furniture, fixtures equipment and cabling installation begins. | ||
Occupancy of the Leased Premises by Tenant. |
8
Schedule 1
“For Lease” signs
![(PROJECT AREA PLAN)](https://www.sec.gov/Archives/edgar/data/909326/000089161806000057/f16776f1677603.gif)
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Schedule 2
Personal Property
HVAC Equipment
(1) 14”x14” fire damper
(1) 22” VAV box
(49) return air registers
(40) supply air registers
(1) 14” reheat coil
(1) 8” reheat coil
Various sizes galvanized pipe
Electrical Equipment
(200) | fluorescent lay-in light fixtures | |
(1) | 1200 amp free-standing meter main | |
(47) | recessed can lights |
Miscellaneous
(18) | exit lights | |
(18) | boxes of misc. ceiling grid wires, etc. | |
(1) | pallet (56) boxes of mini blinds: black, 116.25”x45.75”x1” |
(1) | eye wash station |