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EXHIBIT 10.13
LEASE AGREEMENT
(NNN R&D)
BASIC LEASE INFORMATION
LEASE DATE: May 12, 1998
LANDLORD: Lincoln-RECP Great Oaks OPCO, LLC,
a Delaware limited liability company
LANDLORD'S ADDRESS: c/o LPC MS, Inc.
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxx Xxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000-0000
TENANT: Jabil Circuit, Inc., a Delaware corporation
TENANT'S ADDRESS: 00000 Xxxxxxxxx Xxxx.
Xx. Xxxxxxxxxx, XX 337]6
PREMISES: The Premises consists of (i) certain real property
located on Great Oaks Boulevard, San Jose,
California ("Land") and (ii) certain improvements
consisting of a building ("Building") containing
approximately 181,736 rentable square feet as shown
on Exhibit A
PREMISES ADDRESS: 00-00 Xxxxx Xxxx Xxxx.
Xxx Xxxx, Xxxxxxxxxx 00000
BUILDING: Approximately 181,736 rentable square feet
BUILDING'S TAX PARCEL: APN 000-00-00
TERM: August 15, 1998 ("Commencement Date"), through
August 14, 2008 ("Expiration Date")
BASE RENT (3): One Hundred Sixty Four Thousand Nine Hundred Twenty
Five and 42/100 Dollars ($164,925.42) per month
commencing August 15, 1998 through August 14, 1999.
ADJUSTMENTS TO BASE RENT: Effective August 15, 1999, the Base Rent shall increase to
$187,642.40 per month through August 14, 2003
Effective August 15, 2003, the Base Rent shall
increase to $228,533.02 per month through August 14,
2008
SECURITY DEPOSIT (4): Intentionally omitted.
PERMITTED USES (9): The Premises shall be used for the engineering,
research and development, light manufacturing and
associated production of circuit board and systems, but
only to the extent permitted by the city of San Xxxx
and all agencies and governmental authorities having
jurisdiction thereof.
PARKING SPACES: Five hundred forty (540) spaces
BROKER (38): Xxxxxx Hawk for Tenant
CPS for Landlord
EXHIBITS: Exhibit A - Premises and Building
Exhibit B - Tenant Improvements
Exhibit C - Rules and Regulations
Exhibit D - Covenants Conditions and Restrictions (Intentionally Omitted)
Exhibit E - Hazardous Materials Disclosure Certificate - Example
Exhibit F - Change of Commencement Date - Example
Exhibit G - Tenant's Initial Hazardous Materials Disclosure Certificate
Addenda: Addendum 1: Right of First Offer to Purchase
Addendum 2: Purchase and Sale Agreement
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TABLE OF CONTENTS
SECTION PAGE
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1. PREMISES ............................................................ 4
2. ADJUSTMENT OF COMMENCEMENT DATE; CONDITION OF THE PREMISES .......... 4
3. RENT ................................................................ 4
4. COLLATERAL FOR PERFORMANCE OF LEASE OBLIGATIONS ..................... 5
5. TENANT IMPROVEMENTS ................................................. 5
6. ADDITIONAL RENT ..................................................... 6
7. UTILITIES ........................................................... 7
8. LATE CHARGES ........................................................ 8
9. USE OF PREMISES ..................................................... 8
10. ALTERATIONS AND ADDITIONS; AND SURRENDER OF PREMISES ................ 9
11. REPAIRS AND MAINTENANCE ............................................. 10
12. INSURANCE ........................................................... 1l
13. WAIVER OF SUBROGATION ............................................... 12
14. LIMITATION OF LIABILITY AND INDEMNITY ............................... 12
15. ASSIGNMENT AND SUBLEASING ........................................... 13
16. AD VALOREM TAXES .................................................... 14
17. SUBORDINATION ....................................................... 14
18. RIGHT OF ENTRY ...................................................... 15
19. ESTOPPEL CERTIFICATE ................................................ 15
20. TENANT'S DEFAULT .................................................... 15
21. REMEDIES FOR TENANT'S DEFAULT ....................................... 16
22. HOLDING OVER ........................................................ 17
23. LANDLORD'S DEFAULT .................................................. 17
24. PARKING ............................................................. 17
25. SALE OF PREMISES .................................................... 17
26. WAIVER .............................................................. 18
27. CASUALTY DAMAGE ..................................................... 18
28. CONDEMNATION ........................................................ 18
29. ENVIRONMENTAL MATTERS/HAZARDOUS MATERIALS ........................... 19
30. FINANCIAL STATEMENTS ................................................ 21
31. GENERAL PROVISIONS .................................................. 21
32. SIGNS ............................................................... 22
33. MORTGAGEE PROTECTION ................................................ 23
34. QUITCLAIM ........................................................... 23
35. MODIFICATIONS FOR LENDER ............................................ 23
36. WARRANTIES OF TENANT ................................................ 23
37. COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT ..................... 23
38. BROKERAGE COMMISSION ................................................ 24
39. QUIET ENJOYMENT ..................................................... 24
40. LANDLORD'S ABILITY TO PERFORM TENANT'S UNPERFORMED OBLIGATIONS ...... 24
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LEASE AGREEMENT
DATE: This Lease is made and entered into as of the Lease Date set
forth on Page 1. The Basic Lease Information set forth on Page 1
and this Lease are and shall be construed as a single
instrument.
1. PREMISES: Subject to the terms of this Lease, Landlord hereby leases
the Premises to Tenant upon the terms and conditions contained herein. The term
"Premises" as used herein shall mean and refer to the Building and the Land.
Landlord and Tenant hereby agree that for purposes of this Lease, as of the
Lease Date, the rentable square footage area of the Premises and the Building
shall be deemed to be the number of rentable square feet as set forth in the
Basic Lease Information on Page 1.
2. ADJUSTMENT OF COMMENCEMENT DATE; CONDITION OF THE PREMISES:
If Landlord cannot deliver possession of the Premises on the Commencement Date,
Landlord shall not be subject to any liability nor shall the validity of the
Lease be affected; provided, the Lease Term and the obligation to pay Rent shall
commence on the date possession is tendered and the Expiration Date shall be
extended commensurately. In the event the commencement date and/or the
expiration date of this Lease is other than the Commencement Date and/or
Expiration Date specified in the Basic Lease Information, as the case may be,
Landlord and Tenant shall execute a written amendment to this Lease,
substantially in the form of Exhibit F hereto, wherein the parties shall specify
the actual commencement date, expiration date and the date on which Tenant is to
commence paying Rent. The word "Term" whenever used herein refers to the initial
term of this Lease and any extension thereof. By taking possession of the
Premises, Tenant shall be deemed to have accepted the Premises in good condition
and state of repair. Tenant hereby acknowledges and agrees that neither Landlord
nor Landlord's agents or representatives has made any representations or
warranties as to the suitability, safety or fitness of the Premises for the
conduct of Tenant's business, Tenant's intended use of the Premises or for any
other purpose. If, at any time, Tenant is in default of any term, condition or
provision of this Lease, any such waiver by Landlord of Tenant's requirement to
pay rental payments shall be null and void and Tenant shall immediately pay to
Landlord all rental payments so waived by Landlord.
3. RENT: On the date that Tenant executes this Lease, Tenant shall deliver
to Landlord the original executed Lease, one (1) month's Base Rent and Operating
Expenses (which shall be applied against the Rent payable for the first month
Tenant is required to pay Rent), and all insurance certificates evidencing the
insurance required to be obtained by Tenant under Section 12 of this Lease.
Tenant agrees to pay Landlord, without prior notice or demand, or abatement,
offset, deduction or claim, the Base Rent as and when specified in the Basic
Lease Information payable in advance at Landlord's address specified in the
Basic Lease Information on the first (1st) day of each month of the Term of the
Lease. In addition to the Base Rent set forth in the Basic Lease Information,
Tenant shall pay Landlord in advance on the Commencement Date and thereafter on
the first (1st) day of each month throughout the balance of the Term of this
Lease, as Additional Rent, Operating Expenses, Tax Expenses, and Utility
Expenses. Tenant shall also pay to Landlord as Additional Rent hereunder,
immediately on Landlord's demand therefor, any and all costs and expenses
incurred by Landlord to enforce the provisions of this Lease, including, but not
limited to, costs associated with the delivery of notices, delivery and
recordation of notice(s) of default, attorneys' fees, expert fees, court costs
and filing fees (collectively, the "Enforcement Expenses"). The term "Rent"
whenever used herein refers to the aggregate of all these amounts. If Landlord
permits Tenant to occupy the Premises without requiring Tenant to pay rental
payments for a period of time, the waiver of the requirement to pay rental
payments shall only apply to waiver of the Base Rent and Tenant shall otherwise
perform all other obligations of Tenant required hereunder. The Rent for any
fractional part of a calendar month shall be a prorated amount of the Rent for a
full calendar month based upon a thirty (30) day month. The prorated Rent shall
be paid on the Commencement Date (and applied to the Rent due and owing for the
second month of the Term) and the first day of the calendar month in which the
date of termination occurs, as the case may be.
4. SECURITY DEPOSIT: Intentionally omitted.
5. TENANT IMPROVEMENTS: Tenant hereby accepts the Premises as suitable for
Tenant's intended use and as being in good operating order, condition and
repair, "AS IS", except as specified in Section 2 and in Exhibit B attached
hereto. Tenant shall install and construct the Tenant Improvements (as such term
is defined in Exhibit B hereto) in accordance with the terms, conditions,
criteria and provisions set forth in Exhibit B. Landlord and Tenant hereby agree
to and shall be bound by the terms, conditions and provisions of Exhibit B.
Tenant acknowledges and agrees that neither Landlord nor any of Landlord's
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agents, representatives or employees has made any representations as to the
suitability, fitness or condition of the Premises for conduct of Tenant's
business or for any other purpose, including without limitation, any storage
incidental thereto. Any exception to the foregoing provisions must be made by
express written agreement by both parties.
6. ADDITIONAL RENT: It is intended by Landlord and Tenant that this Lease
be a "triple net lease." The costs and expenses described in this Section 6 and
all other sums, charges, costs and expenses specified in this Lease other than
Base Rent are to be paid by Tenant to Landlord as additional rent
(collectively, "Additional Rent").
6.1 OPERATING EXPENSES: In addition to the Base Rent set forth in
Section 3, Tenant shall pay all Operating Expenses as Additional Rent. The term
"Operating Expenses" as used herein shall mean the total amounts paid or
payable by Landlord in connection with the ownership, maintenance, repair and
operation of the Premises and the Building. These Operating Expenses may
include, but are not limited to:
6.1.1 Landlord's cost of repairs to, and maintenance of,
the non-structural portion of the roof, the roof membrane and the
non-structural portions of the exterior walls of the Building:
6.1.2 Landlord s cost of maintaining the outside paved area
and landscaping.
6.1.3 Landlord's annual cost of insurance insuring against
fire and extended coverage (including, if Landlord elects, "all risk"
or "special purpose" coverage) and all other insurance, including,
but not limited to, earthquake, flood and/or surface water
endorsements for the Building, rental value insurance against loss of
Rent in an amount equal to the amount of Rent for a period of at
least six (6) months commencing on the date of loss, and subject to
the provisions of Section 27 below, any deductible;
6.1.4 Landlord's cost of: (i) modifications and/or new
improvements to the Building or Premises occasioned by any rules,
laws or regulations effective subsequent to the date on which the
Building was originally constructed; (ii) reasonably necessary
replacement improvements to the Building or Premises after the Lease
Date; and (iii) new improvements to the Building or the Premises that
reduce operating costs or improve life/safety conditions, all as
reasonably determined by Landlord, in its sole discretion;
6.1.5 If Landlord elects to so procure, Landlord's cost of
preventative maintenance, and repair contracts including, but not
limited to, contracts for elevator systems and heating, ventilation
and air conditioning systems, lifts for disabled persons, and trash
or refuse collection;
6.1.6 Landlord's cost of security and fire protection
services for the Building and/or Premises, as the case may be, if in
Landlord's sole discretion such services are provided;
6.1.7 Landlord's cost of supplies, equipment, rental
equipment and other similar items used in the operation and/or
maintenance of the Premises;
6.1.8 Landlord's cost for the repairs and maintenance items
set forth in Section 11.2 below; and
6.1.9 Landlord's cost for the management and administration
of the Premises and the Building, including without limitation, a
property management fee, accounting, auditing, billing, salaries for
clerical sad supervisory employees and all fees, licenses and permits
related to the ownership. operation and management of say portion of
the Premises in an amount not to exceed three percent (3 %) of the
Rent, excluding for purposes of calculating this sum, the costs
described in this Section 6.1.9.
6.2 TAX EXPENSES: In addition to the Base Rent set forth in
Section 3, Tenant shall pay all real property taxes applicable to the Premises
and one hundred percent (100%) of all personal property taxes now or hereafter
assessed or levied against the Premises or Tenant's personal property. Tenant
shall also pay one hundred percent (100%) of any increase in real property
taxes attributable, in Landlord's sole discretion, to any and all alterations,
Tenant Improvements or other improvements of any kind, which are above standard
improvements customarily installed for similar buildings whatsoever placed in,
on or about the Premises for the benefit of, at the request of, or by Tenant.
The term "Tax Expenses" shall mean and include, without limitation, any form of
tax and assessment (general. special, supplemental, ordinary or extraordinary),
commercial rental tax, payments under any improvement bond or bonds, license
fees, license tax, business license fee, rental tax, transaction tax, levy, or
penalty imposed by authority having the direct or indirect power of tax
(including any city, county. state or
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federal government, or any school, agricultural, lighting, drainage or other
improvement district thereof) as against any legal or equitable interest of
Landlord in the Premises or the Building, as against Landlord's right to rent,
or as against Landlord's business of leasing the Premises or the occupancy of
Tenant or any other tax, fee, or excise, however described, including, but not
limited to, any value added tax, or any tax imposed in substitution (partially
or totally) of any tax previously included within the definition of real
property taxes, or any additional tax the nature of which was previously
included within the definition of real property taxes. The term "Tax Expenses"
shall not include any franchise. estate, inheritance, net income, or excess
profits tax imposed upon Landlord.
6.3 PAYMENT OF EXPENSES: Landlord shall estimate Operating
Expenses and Tax Expenses for the calendar year in which the Lease commences.
Commencing on the Commencement Date, one-twelfth (1/12th) of this estimated
amount shall be paid by Tenant to Landlord, as Additional Rent, and thereafter
on the first (1st) day of each month throughout the remaining months of such
calendar year. Thereafter, Landlord may estimate such expenses as of the
beginning of each calendar year during the Term of this Lease and Tenant shall
pay one-twelfth (1/12th) of such estimated amount as Additional Rent hereunder
on the first (1st) day of each month during such calendar year and for each
ensuing calendar year throughout the Term of this Lease. Tenant's obligation to
pay Operating Expenses and Tax Expenses shall survive the expiration or earlier
termination of this Lease.
6.4 ANNUAL RECONCILIATION: By June 30th of each calendar year, or
as soon thereafter as reasonably possible, Landlord shall furnish Tenant with
an accounting of actual Operating Expenses and Tax Expenses. Within thirty (30)
days of Landlord's delivery of such accounting, Tenant shall pay to Landlord
the amount of any underpayment. Notwithstanding the foregoing, failure by
Landlord to give such accounting by such date shall not constitute a waiver by
Landlord of its right to collect any of Tenant's underpayment at any time.
Landlord shall credit the amount of any overpayment by Tenant toward the next
estimated monthly installment(s) falling due, or where the Term of the Lease
has expired, refund the amount of overpayment to Tenant. If the Term of the
Lease expires prior to the annual reconciliation of expenses Landlord shall
have the right to reasonably estimate such expenses, and if Landlord determines
that an underpayment is due, Tenant hereby agrees that Landlord shall be
entitled to deduct such underpayment from Tenant's Security Deposit. If
Landlord reasonably determines that an overpayment has been made by Tenant,
Landlord shall refund said overpayment to Tenant as soon as practicable
thereafter; however, in no event later than ninety (90) days. Notwithstanding
the foregoing, failure of Landlord to accurately estimate such expenses or to
otherwise perform such reconciliation of expenses, including without
limitation, Landlord's failure to deduct any portion of any underpayment from
Tenant's Security Deposit, shall not constitute a waiver of Landlord's right to
collect any of Tenant's underpayment at any time during the Term of the Lease
or at any time after the expiration or earlier termination of this Lease.
6.5 AUDIT: After delivery to Landlord of at least thirty (30) days
prior written notice, Tenant, at its sole cost and expense through any
accountant designated by it, shall have the right to examine and/or audit the
books and records evidencing such costs and expenses for the previous one (1)
calendar year, during Landlord's reasonable business hours but not more
frequently than once during any calendar year. Any such accounting firm
designated by Tenant may not be compensated on a contingency fee basis. The
results of any such audit (and any negotiations between the parties related
thereto) shall be maintained strictly confidential by Tenant and its accounting
firm and shall not be disclosed, published or otherwise disseminated to any
other party other than to Landlord and its authorized agents. Landlord and
Tenant shall use their best efforts to cooperate in such negotiations and to
promptly resolve any discrepancies between Landlord and Tenant in the
accounting of such costs and expenses.
7. UTILITIES: Utility Expenses and all other sums or charges set
forth in this Section 7 are considered part of Additional Rent. In addition to
the Base Rent set forth in Section 3 hereof, Tenant shall pay directly the cost
of all water, sewer use, sewer discharge fees and sewer connection fees, gas,
heat, electricity, refuse pickup, janitorial service, telephone and other
utilities billed or metered separately to the Premises and/or Tenant. Tenant
shall also pay any assessments or charges for utility or similar purposes
included within any tax xxxx for the Premises, including, without limitation,
entitlement fees, allocation unit fees, and/or any similar fees or charges, and
any penalties related thereto. For any such utility fees or use charges that
are not billed or metered separately to Tenant, including without limitation,
water and refuse pick up charges, Tenant shall pay to Landlord, as Additional
Rent, without prior notice or demand, on the Commencement Date and thereafter
on the first (1st) day of each month throughout the balance of the Term of this
Lease the amount which is attributable to Tenant's use of the utilities or
similar services ("Utility Expenses"). Tenant acknowledges that the Premises
may become subject to the rationing of utility services or restrictions on
utility use as required by a public utility company, governmental agency or
other similar entity having jurisdiction thereof. Notwithstanding any such
rationing or restrictions on use of any such utility services, Tenant
acknowledges and agrees that its tenancy and occupancy hereunder shall be
subject to such rationing restrictions as may be imposed upon Landlord, Tenant,
the Premises or the Building, and Tenant shall in no event be excused or
relieved from
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any covenant or obligation to be kept or performed by Tenant by reason of any
such rationing or restrictions. Tenant further agrees to timely and faithfully
pay, prior to delinquency, any amount, tax, charge, surcharge, assessment or
imposition levied, assessed or imposed upon the Premises, or Tenant's use and
occupancy thereof. Notwithstanding anything to the contrary contained herein,
if permitted by applicable Laws, Landlord shall have the right at any time and
from time to time during the Term of this Lease to either contract for service
from a different company or companies (each such company shall be referred to
herein as an "Alternate Service Provider") other than the company or companies
presently providing electricity service for the Building (the "Electric Service
Provider.) or continue to contract for service from the Electric Service
Provider, at Landlord's sole discretion. Tenant hereby agrees to cooperate with
Landlord, the Electric Service Provider, and any Alternate Service Provider at
all times and, as reasonably necessary, shall allow Landlord, the Electric
Service Provider, and any Alternate Service Provider reasonable access to the
Building's electric lines, feeders, risers, wiring, and any other machinery
within the Premises.
8. LATE CHARGES: Any and all sums or charges set forth in this Section 8
are considered part of Additional Rent. Tenant acknowledges that late payment
(the fifth day of each month or any time thereafter) by Tenant to Landlord of
Base Rent, Operating Expenses, Tax Expenses and Utility Expenses or other sums
due hereunder, will cause Landlord to incur costs not contemplated by this
Lease, the exact amount of such costs being extremely difficult and
impracticable to fix. Such costs include, without limitation, processing and
accounting charges, and late charges that may be imposed on Landlord by the
terms of any note secured by any encumbrance against the Premises, and late
charges and penalties due to the late payment of real property taxes on the
Premises. Therefore, if any installment of Rent or any other sum due from
Tenant is not received by Landlord within four (4) days of when due, Tenant
shall promptly pay to Landlord all of the following, as applicable: (a) an
additional sum equal to ten percent (10%) of such delinquent amount, (b) the
amount of seventy-five dollars ($75) for each three-day notice prepared for, or
served on, Tenant, (c) the amount of fifty dollars ($50) relating to checks for
which there are not sufficient funds. If Tenant delivers to Landlord a check
for which there are not sufficient funds, Landlord may, at its sole option,
require Tenant to replace such check with a cashier's check for the amount of
such check and all other charges payable hereunder. The parties agree that this
late charge and the other charges referenced above represent a fair and
reasonable estimate of the costs that Landlord will incur by reason of late
payment by Tenant. Acceptance of any late charge or other charges shall not
constitute a waiver by Landlord of Tenant's default with respect to the
delinquent amount, nor prevent Landlord from exercising any of the other rights
and remedies available to Landlord for any other breach of Tenant under this
Lease. If a late charge or other charge becomes payable for any three (3)
installments of Rent within any twelve (12) month period, then Landlord, at
Landlord's sole option, can either require the Rent be paid quarterly in
advance, or be paid monthly in advance by cashier's check or by electronic
funds transfer.
9. USE OF PREMISES:
9.1 COMPLIANCE WITH LAWS, RECORDED MATTERS, AND RULES AND
REGULATIONS: The Premises are to be used solely for the purposes and uses
specified in the Basic Lease Information and for no other uses or purposes
without Landlord's prior written consent, which consent shall not be
unreasonably withheld or delayed so long as the proposed use (i) does not
involve the use of Hazardous Materials other than as expressly permitted under
the provisions of Xxxxxxx 00 xxxxx, (xx) does not require any additional
parking in excess of the parking spaces already licensed to Tenant pursuant to
the provisions of Section 24 of this Lease, and (iii) is compatible and
consistent with the other uses then being made in other similar types of
buildings in the vicinity of the Building, as reasonably determined by
Landlord. The use of the Premises by Tenant and its employees, representatives,
agents, invitees, licensees, subtenants, customers or contractors
(collectively, "Tenant's Representatives") shall be subject to, and at all
times in compliance with, (a) any and all applicable laws, ordinances,
statutes, orders and regulations as same exist from time to time (collectively,
the "Laws"). (b) any and all documents, matters or instruments, including
without limitation, any declarations of covenants, conditions sad restrictions,
ant any supplements thereto, each of which has been or hereafter is recorded in
any official or public records with respect to the Premises and/or the
Building, or any portion thereof (collectively, the "Recorded Matters"), and
(c) any and all rules and regulations set forth in Exhibit C, attached to and
made a part of this lease and any other reasonable rules and regulations
promulgated by Landlord now or hereafter enacted relating to parking and the
operation of the Premises and the Building (collectively, the "Rules and
Regulations"). Tenant agrees to, and does hereby, assume full and complete
responsibility to ensure that the Premises are adequate to fully meet the needs
and requirements of Tenant's intended operations of its business within the
Premises, and Tenant's use of the Premises and that same are in compliance with
all applicable Laws throughout the Term of this Lease. Additionally, Tenant
shall be solely responsible for the payment of all costs, fees and expenses
associated with any modifications, improvements or alterations to the Premises
and the Building occasioned by the enactment of, or changes to, any Laws
arising from
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Tenant's particular use of the Premises or alterations, improvements or
additions made to the Premises regardless of when such Laws became effective.
9.2 PROHIBITION ON USE: Tenant shall not use the Premises or
permit anything to be done in or about the Premises nor keep or bring anything
therein which will in any way conflict with any of the requirements of the
Board of Fire Underwriters or similar body now or hereafter constituted or in
any way increase the existing rate of or affect any policy of fire or other
insurance upon the Building or any of its contents, or cause a cancellation of
any insurance policy. No auctions may be held or otherwise conducted in, on or
about the Premises or the Building without Landlord's written consent thereto.
which consent may be given or withheld in Landlord's sole discretion. Tenant
shall not do or permit anything to be done in or about the Premises which will
in any way obstruct or interfere with the rights of Landlord, other persons or
businesses in the area, or use or allow the Premises to be used for any
unlawful or objectionable purpose, as determined by Landlord; nor shall Tenant
cause, maintain or permit any private or public nuisance in, on or about the
Premises and/or the Building, including, but not limited to, any offensive
odors, noises, fumes or vibrations. Tenant shall not damage or deface or
otherwise commit or suffer to be committed any waste in, upon or about the
Premises. Tenant shall not place or store, nor permit any other person or
entity to place or store, any property, equipment, materials, supplies,
personal property or any other items or goods outside of the Premises for any
period of time. Tenant shall not permit any animals, including, but not limited
to, any household pets, to be brought or kept in or about the Premises. Tenant
shall place no loads upon the floors, walls, or ceilings in excess of the
maximum designed load permitted by the applicable Uniform Building Code or
which may damage the Building or outside areas; nor place any harmful liquids
in the drainage systems; nor dump or store waste materials, refuse or other
such materials, or allow such to remain outside the Building area, except for
any non-hazardous or non-harmful materials which may be stored in refuse
dumpsters or in any enclosed trash areas provided. Tenant shall honor the terms
of all Recorded Matters relating to the Premises and/or the Building. Tenant
shall honor the Rules and Regulations. If Tenant fails to comply with such
Laws, Recorded Matters, Rules and Regulations or the provisions of this Lease,
Landlord shall have the right to collect from Tenant a reasonable sum as a
penalty, in addition to all rights and remedies of Landlord hereunder
including, but not limited to, the payment by Tenant to Landlord of all
Enforcement Expenses and Landlord's costs and expenses, if any, to cure any of
such failures of Tenant, if Landlord, at its sole option, elects to undertake
such cure.
10. ALTERATIONS AND ADDITIONS; AND SURRENDER OF PREMISES:
10.1 Alterations and Additions: Tenant shall not install any signs,
fixtures, improvements, nor make or permit any other alterations or additions
to the Premises without the prior written consent of Landlord. If any such
alteration or addition is expressly permitted by Landlord, Tenant shall deliver
at least twenty (20) days prior notice to Landlord, from the date Tenant
intends to commence construction, sufficient to enable Landlord to post a
Notice of Non-Responsibility. In all events, Tenant shall obtain all permits or
other governmental approvals prior to commencing any of such work and deliver a
copy of same to Landlord. All alterations and additions shall be installed by a
licensed contractor approved by Landlord, at Tenant's sob expense in compliance
with all applicable Laws (including, but not limited to, the ADA as defined
herein), Recorded Matters, and Rules and Regulations. Tenant shall keep the
Premises and the property on which the Premises are situated free from any
liens arising out of any work performed, materials furnished or obligations
incurred by or on behalf of Tenant. As a condition to Landlord's consent to the
installation of any fixtures, additions or other improvements, Landlord may
require Tenant to post and obtain a completion and indemnity bond for up to one
hundred fifty percent (150%) of the cost of the work.
10.2 SURRENDER OF PREMISES: Upon the termination of this Lease,
whether by forfeiture, lapse of time or otherwise, or upon the termination of
Tenant's right to possession of the Premises, Tenant will at once surrender and
deliver up the Premises, together with the fixtures (other than trade
fixtures), additions and improvements which Landlord has notified Tenant, in
writing, that Landlord will require Tenant not to remove, to Landlord in good
condition and repair (including, but not limited to, replacing all light bulbs
and ballasts not in good working condition) and in the condition in which the
Premises existed as of the Commencement Date, except for reasonable wear and
tear. Reasonable wear and tear shall not include any damage or deterioration to
the floors of the Premises arising from the use of forklifts in, on or about
the Premises (including, without limitation, any marks or stains of any portion
of the floors), and any damage or deterioration that would have been prevented
by proper maintenance by Tenant or Tenant otherwise performing all of its
obligations under this Lease. Upon such termination of this Lease, Tenant shall
remove all tenant signage, trade fixtures, furniture, furnishings, personal
property, additions, and other improvements unless Landlord requests, in
writing, that Tenant not remove some or all of such fixtures (other than trade
fixtures), additions or improvements installed by, or on behalf of Tenant or
situated in or about the Premises. By the date which is one hundred eighty
(180) days prior to such termination of this Lease, Landlord shall notify
Tenant in writing of those fixtures (other than trade fixtures), alterations,
additions and other improvements which Landlord shall require
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Tenant not to remove from the Premises. Tenant shall repair any damage caused
by the installation or removal of such signs, trade fixtures, furniture,
furnishings, fixtures, additions and improvements are to be removed from the
Premises by Tenant hereunder. If Landlord fails to so notify Tenant at least
twenty (20) days prior to such termination of this Lease, then Tenant shall
remove all tenant signage, alterations, furniture, furnishings, trade fixtures,
additions and other improvements (other than the Tenant Improvements) installed
in or about the Premises by, or on behalf of Tenant. Tenant shall ensure that
the removal of such items and the repair of the Premises will be completed
prior to such termination of this Lease.
11. REPAIRS AND MAINTENANCE:
11.1 TENANT'S REPAIRS AND MAINTENANCE OBLIGATIONS: Except for those
portions of the Building to be maintained by Landlord, as provided in Sections
11.2 and 11.3 below, Tenant shall, at Tenant's sole cost and expense, keep and
maintain the Premises and the adjacent dock and staging areas in good, clean
and safe condition and repair to the reasonable satisfaction of Landlord
including, but not limited to, repairing any damage caused by Tenant or
Tenant's Representatives and replacing any property so damaged by Tenant or
Tenant's Representatives. Without limiting the generality of the foregoing,
Tenant shall be solely responsible for maintaining, repairing and replacing (a)
all mechanical systems, heating, ventilation and air conditioning systems
exclusively serving the Premises, (b) all plumbing, electrical wiring and
equipment serving the Premises, (c) all interior lighting (including, without
limitation, light bulbs and/or ballasts) and exterior lighting serving the
Premises or adjacent to the Premises, (d) all glass, windows, window frames,
window casements, skylights, interior and exterior doors, door frames and door
closers, (e) all roll-up doors, ramps and dock equipment, including without
limitation, dock bumpers, dock plates, dock seals, dock levelers and dock
lights, (f) all tenant signage, (g) lifts for disabled persons serving the
Premises, (h) sprinkler systems, fire protection systems and security systems,
(i) all partitions, fixtures, equipment, interior painting, and interior walls
and non-structural portions of the floors of the Premises and every part
thereof (including, without limitation, any demising walls contiguous to any
portion of the Premises).
11.2 REIMBURSABLE REPAIRS AND MAINTENANCE OBLIGATIONS: Subject to
the provisions of Sections 6 and 9 of this Lease and except for (i) the
obligations of Tenant set forth in Section 11.1 above, (ii) the obligations of
Landlord set forth in Section 11.3 below, and (iii) the repairs rendered
necessary by the intentional or negligent acts or omissions of Tenant or any of
Tenant's Representatives, Landlord agrees, at Landlord's expense, subject to
reimbursement pursuant to Section 6 above, to keep in good repair the plumbing
and mechanical systems exterior to the Premises, the non-structural portions of
the roof, roof membranes, the non-structural portion of the exterior walls of
the Building, signage (exclusive of tenant signage), and exterior electrical
wiring and equipment, exterior lighting, exterior glass, exterior
doors/entrances and door closers, exterior window casements, exterior painting
of the Building (exclusive of the Premises), and underground utility and sewer
pipes outside the exterior walls of the Building. For purposes of this Section
11.2, the term "exterior" shall mean outside of and not exclusively serving the
Premises. Unless otherwise notified by Landlord, in writing, that Landlord has
elected to procure and maintain the following described contract(s), Tenant
shall procure and maintain (a) the heating, ventilation and air conditioning
systems preventative maintenance and repair contract(s); such contract(s) to be
on a bi-monthly or quarterly basis, as reasonably determined by Landlord, and
(b) the fire and sprinkler protection services and preventative maintenance and
repair contract(s) (including, without limitation, monitoring services); such
contract(s) to be on a bi-monthly or quarterly basis, as reasonably determined
by Landlord. Landlord reserves the right, but without the obligation to do so,
to procure and maintain (i) the heating, ventilation and air conditioning
systems preventative maintenance and repair contract(s), and/or (ii) the fire
and sprinkler protection services and preventative maintenance and repair
contract(s) (including, without limitation, monitoring services). If Landlord
so elects to procure and maintain any such contract(s), Tenant will reimburse
Landlord for the cost thereof in accordance with the provisions of Section 6
above. If Tenant procures and maintains any of such contract(s), Tenant will
promptly deliver to Landlord a true and complete copy of each such contract and
any and all renewals or extensions thereof, and each service report or other
summary received by Tenant pursuant to or in connection with such contract(s).
11.3 LANDLORD'S REPAIRS AND MAINTENANCE OBLIGATIONS: Except for
repairs rendered necessary by the intentional or negligent acts or omissions of
Tenant or any of Tenant's Representatives, Landlord agrees, at Landlord's sole
cost and expense, to (a) keep in good repair the structural portions of the
floors, foundations and exterior perimeter walls of the Building (exclusive of
glass and exterior doors), and (b) replace the structural portions of the roof
of the Building (excluding the roof membrane) as, and when, Landlord determines
such replacement to be necessary in Landlord's reasonable discretion.
11.4 TENANT'S FAILURE TO PERFORM REPAIRS AND MAINTENANCE
OBLIGATIONS: Except for normal maintenance and repair of the items described
above Tenant shall have no right of access to or right to install any device on
the roof of the Building nor make any penetrations of the roof of the Building
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without the express prior written consent of Landlord. If Tenant refuses or
neglects to repair and maintain the Premises and the adjacent areas properly as
required herein and to the reasonable satisfaction of Landlord, Landlord may,
but without obligation to do so, at any time make such repairs and/or
maintenance without Landlord having any liability to Tenant for any loss or
damage that may accrue to Tenant's merchandise, fixtures or other property, or
to Tenant's business by reason thereof, except to the extent any damage is
caused by the willful misconduct or gross negligence of Landlord or its
authorized agents and representatives. In the event Landlord makes such repairs
and/or maintenance, upon completion thereof Tenant shall pay to Landlord, as
additional rent, the Landlord's costs for making such repairs and/or
maintenance, plus twenty percent (20%) for overhead, upon presentation of a
xxxx therefor, plus any Enforcement Expenses. The obligations of Tenant
hereunder shall survive the expiration of the Term of this Lease or the earlier
termination thereof. Tenant hereby waives any right to repair at the expense of
Landlord under any applicable Laws now or hereafter in effect respecting the
Premises.
12. INSURANCE:
12.1 TYPES OF INSURANCE: Tenant shall maintain in full force and
effect at all times during the Term of this Lease, at Tenant's sole cost and
expense, for the protection of Tenant and Landlord, as their interests may
appear, policies of insurance issued by a carrier or carriers reasonably
acceptable to Landlord and its lender(s) which afford the following coverages:
(I) worker's compensation: statutory limits; (ii) employer's liability, as
required by law, with a minimum limit of $100,000 per employee and $500,000 per
occurrence; (iii) commercial general liability insurance (occurrence form)
providing coverage against any and all claims for bodily injury and property
damage occurring in, on or about the Premises arising out of Tenant's and
Tenant's Representatives' use and/or occupancy of the Premises. Such insurance
shall include coverage for blanket contractual liability, fire damage,
premises, personal injury, completed operations, products liability, personal
and advertising. Such insurance shall have a combined single limit of not less
than One Million Dollars ($1,000,000) per occurrence with a Two Million Dollar
($2,000,000) aggregate limit and excess/umbrella insurance in the amount of Two
Million Dollars ($2,000,000). If Tenant has other locations which it owns or
leases, the policy shall include an aggregate limit per location endorsement.
If necessary, as reasonably determined by Landlord, Tenant shall provide for
restoration of the aggregate limit; (iv) comprehensive automobile liability
insurance: a combined single limit of not less than $2,000,000 per occurrence
and insuring Tenant against liability for claims arising out of the ownership,
maintenance, or use of any owned, hired or non-owned automobiles; (v) "all
risk" or "special purpose" property insurance, including without limitation,
sprinkler leakage, boiler and machinery comprehensive form, if applicable,
covering damage to or loss of any personal property, trade fixtures, inventory,
fixtures and equipment located in, on or about the Premises, and in addition,
coverage for flood, earthquake, and business interruption of Tenant, together
with, if the property of Tenant's invitees is to be kept in the Premises,
warehouser's legal liability or bailee customers insurance for the full
replacement cost of the property belonging to invitees and located in the
Premises. Such insurance shall be written on a replacement cost basis (without
deduction for depreciation) in an amount equal to one hundred percent (100%) of
the full replacement value of the aggregate of the items referred to in this
subparagraph (v); and (vi) such other insurance as Landlord deems necessary and
prudent or as may otherwise be required by any of Landlord's lenders or joint
venture partners.
12.2 INSURANCE POLICIES: Insurance required to be maintained by
Tenant shall be written by companies (i) licensed to do business in the State
of California, (ii) domiciled in the United States of America, and (iii) having
a "General Policyholders Rating" of at least A:X (or such higher rating as may
be required by a lender having a lien on the Premises) as set forth in the most
current issue of "A.M. Best's Rating Guides." Any deductible amounts under any
of the insurance policies required hereunder shall not exceed Twenty-Five
Thousand ($25,000). Tenant shall deliver to Landlord certificates of-
insurance and true and complete copies of any and all endorsements required
herein for all insurance required to be maintained by Tenant hereunder at the
time of execution of this Lease by Tenant. Tenant shall, at least thirty (30)
days prior to expiration of each policy, furnish Landlord with certificates of
renewal or "binders" thereof. Each certificate shall expressly provide that
such policies shall not be cancelable or otherwise subject to modification
except after thirty (30) days prior written notice to the parties named as
additional insureds as required in this Lease (except for cancellation for
nonpayment of premium, in which event cancellation shall not take effect until
at least ten (10) days' notice has been given to Landlord). Tenant shall have
the right to provide insurance coverage which it is obligated to carry pursuant
to the terms of this Lease under a blanket insurance policy, provided such
blanket policy expressly affords coverage for the Premises and for Landlord as
required by this Lease.
12.3 ADDITIONAL INSUREDS AND COVERAGE: Landlord, any property
management company and/or agent of Landlord for the Premises or the Building,
and any lender(s) of Landlord having a lien against the Premises or the
Building shall be named as additional insureds under all of the policies
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required in Section 12.1 (iii) above. Additionally, such policies shall provide
for severability of interest. All insurance to be maintained by Tenant shall,
except for workers' compensation and employer's liability insurance, be
primary, without right of contribution from insurance maintained by Landlord.
Any umbrella/excess liability policy (which shall be in "following form") shall
provide that if the underlying aggregate is exhausted, the excess coverage will
drop down as primary insurance. The limits of insurance maintained by Tenant
shall not limit Tenant's liability under this Lease. It is the parties'
intention that the insurance to be procured and maintained by Tenant as
required herein shall provide coverage for any and all damage or injury arising
from or related to Tenant's operations of its business and/or Tenant's or
Tenant's Representatives' use of the Premises and/or the Building, whether such
events occur within the Building or in any other areas of the Premises. It is
not contemplated or anticipated by the parties that the aforementioned risks of
loss be borne by Landlord's insurance carriers, rather it is contemplated and
anticipated by Landlord and Tenant that such risks of loss be borne by Tenant's
insurance carriers pursuant to the insurance policies procured and maintained
by Tenant as required herein.
12.4 FAILURE OF TENANT TO PURCHASE AND MAINTAIN INSURANCE: In the
event Tenant does not purchase the insurance required in this Lease or keep the
same in kill force and effect throughout the Term of this lease (including any
renewals or extensions), Landlord may, but without obligation to do so,
purchase the necessary insurance and pay the premiums therefor. If Landlord so
elects to purchase such insurance, Tenant shall promptly pay to Landlord as
Additional Rent, the amount so paid by Landlord, upon Landlord's demand
therefor. In addition, Landlord may recover from Tenant and Tenant agrees to
pay, as Additional Rent, any and all Enforcement Expenses and damages which
Landlord may sustain by reason of Tenant's failure to obtain and maintain such
insurance. If Tenant fails to maintain any insurance required in this Lease,
Tenant shall be liable for all losses, damages and costs resulting from such
failure.
13. WAIVER OF SUBROGATION: Landlord and Tenant hereby mutually waive their
respective rights of recovery against each other for any loss of, or damage to,
either parties' property to the extent that such loss or damage is insured by
an insurance policy required to be in effect at the time of such loss or
damage. Each party shall obtain any special endorsements, if required by its
insurer whereby the insurer waives its rights of subrogation against the other
party. This provision is intended to waive fully, and for the benefit of the
parties hereto, any rights and/or claims which might give rise to a right of
subrogation in favor of any insurance carrier. The coverage obtained by Tenant
pursuant to Section 12 of this Lease shall include, without limitation, a
waiver of subrogation endorsement attached to the certificate of insurance. The
provisions of this Section 13 shall not apply in those instances in which such
waiver of subrogation would invalidate such insurance coverage or would cause
either party's insurance coverage to be voided or otherwise uncollectible.
14. LIMITATION OF LIABILITY AND INDEMNITY: Except to the extent of damage
resulting from the active gross negligence or willful misconduct of Landlord or
its authorized representatives, Tenant agrees to protect, defend (with counsel
acceptable to Landlord) and hold Landlord and Landlord's lenders, partners,
members, property management company (if other than Landlord), agents,
directors, officers, employees, representatives, contractors, shareholders,
successors and assigns and each of their respective partners, members,
directors, employees, representatives, agents, contractors, shareholders,
successors and assigns (collectively, the "Indemnitees") harmless and indemnity
the Indemnitees from and against all liabilities, damages, claims, losses,
judgments, charges and expenses (including reasonable attorneys' fees, costs of
court and expenses necessary in the prosecution or defense of any litigation
including the enforcement of this provision) arising from or in any way related
to, directly or indirectly, (i) Tenant's or Tenant's Representatives' use of
the Premises and/or the Building, (ii) the conduct of Tenant's business, (iii)
from any activity, work or thing done, permitted or suffered by Tenant in or
about the Premises, (iv) in any way connected with the Premises or with the
improvements or personal property therein, including' but not limited to, any
liability for injury to person or property of Tenant, Tenant's Representatives,
or third party persons, and/or (v) Tenant's failure to perform any covenant or
obligation of Tenant under this Lease. Tenant agrees that the obligations of
Tenant herein shall survive the expiration or earlier termination of this
Lease.
Except to the extent of damage resulting from the active gross
negligence or willful misconduct of Landlord or its authorized representatives,
to the fullest extent permitted by law, Tenant agrees that neither Landlord nor
any of Landlord's lender(s), partners, members, employees, representatives,
legal representatives, successors or assigns shall at any time or to any extent
whatsoever be liable, responsible or in any way accountable for any loss,
liability, injury, death or damage to persons or property which at any time may
be suffered or sustained by Tenant or by any person(s) whomsoever who may at
any time be using, occupying or visiting the Premises or the Building. Tenant
shall not, in any event or circumstance, be permitted to offset or otherwise
credit against any payments of Rent required herein for matters for which
Landlord may be liable hereunder.
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15. ASSIGNMENT SUBLEASING:
15.1 PROHIBITION: Tenant shall not assign, mortgage, hypothecate,
encumber, grant any license or concession, pledge or otherwise transfer this
Lease (collectively, "assignment"), in whole or in part, whether voluntarily or
involuntarily or by operation of law, nor sublet or permit occupancy by any
person other than Tenant of all or any portion of the Premises without first
obtaining the prior written consent of Landlord, which consent shall not be
unreasonably withheld. Tenant hereby agrees that Landlord may withhold its
consent to any proposed sublease or assignee if the proposed sublessee or
assignee or its business is subject to compliance with additional requirements
of the ADA (defined below) and/or Environmental Laws (defined below) beyond
those requirements which are applicable to Tenant, unless the proposed
sublessee or assignee shall (a) first deliver plans and specifications for
complying with such additional requirements ant obtain Landlord's written
consent thereto, and (b) comply with all Landlord's conditions for or contained
in such consent, including without limitation, requirements for security to
assure the lien-free completion of such improvements. If Tenant seeks to sublet
or assign all or any portion of the Premises, Tenant shall deliver to Landlord
at least thirty (30) days prior to the proposed commencement of the sublease or
assignment (the "Proposed Effective Date") the following: (i) the name of the
proposed assignee or sublessee; (ii) such information as to such assignee's or
sublessee's financial responsibility and standing as Landlord may reasonably
require; and (iii) the aforementioned plans and specifications, if any. Within
ten (10) days after Landlord's receipt of a written request from Tenant that
Tenant seeks to sublet or assign all or any portion of the Premises, Landlord
shall deliver to Tenant a copy of Landlord's standard form of sublease or
assignment agreement (as applicable), which instrument shall be utilized for
each proposed sublease or assignment (as applicable), and such instrument shall
include a provision whereby the assignee or sublessee assumes all of Tenant's
obligations hereunder and agrees to be bound by the terms hereof. As Additional
Rent hereunder, Tenant shall pay to Landlord a fee in the amount of five
hundred dollars ($500) plus Tenant shall reimburse Landlord for actual legal
and other expenses incurred by Landlord in connection with any actual or
proposed assignment or subletting. In the event the sublease or assignment (1)
by itself or taken together with prior sublease(s) or partial assignment(s)
covers or totals, as the case may be, more than twenty-five percent (25%) of
the rentable square feet of the Premises or (2) is for a term which by itself
or taken together with prior or other subleases or partial assignments is
greater than fifty percent (50%) of the period remaining in the Term of this
Lease as of the time of the Proposed Effective Date, then Landlord shall have
the right, to be exercised by giving written notice to Tenant, to recapture the
space described in the sublease or assignment. If such recapture notice is
given, it shall serve to terminate this Lease with respect to the proposed
sublease or assignment space, or, if the proposed sublease or assignment space
covers all the Premises, it shall serve to terminate the entire term of this
Lease in either case, as of the Proposed Effective Date. However, no
termination of this Lease with respect to part or all of the Premises shall
become effective without the prior written consent, where necessary, of the
holder of each deed of trust encumbering the Premises or any part thereof. If
this Lease is terminated pursuant to the foregoing with respect to less than
the entire Premises, the Rent shall be adjusted on the basis of the proportion
of square feet retained by Tenant to the square feet originally demised and
this Lease as so amended shall continue thereafter in full force and effect.
Each permitted assignee or sublessee shall assume and be deemed to assume this
Lease and shall be and remain liable jointly and severally with Tenant for
payment of Rent and for the due performance of, and compliance with all the
terms, covenants, conditions and agreements herein contained on Tenant's part
to be performed or complied with, for the term of this Lease. No assignment or
subletting shall affect the continuing primary liability of Tenant (which,
following assignment, shall be joint and several with the assignee), and Tenant
shall not be released from performing any of the terms, covenants and
conditions of this Lease. Tenant hereby acknowledges and agrees that it
understands that Landlord's accounting department may process and accept Rent
payments without verifying that such payments are being made by Tenant, a
permitted sublessee or a permitted assignee in accordance with the provisions
of this Lease. Although such payments may be processed and accepted by such
accounting department personnel, any and ail actions or omissions by the
personnel of Landlord's accounting department shall not be considered as
acceptance by Landlord of any proposed assignee or sublessee nor shall such
actions or omissions be deemed to be a substitute for the requirement that
Tenant obtain Landlord's prior written consent to any such subletting or
assignment, and any such actions or omissions by the personnel of Landlord's
accounting department shall not be considered as a voluntary relinquishment by
Landlord of any of its rights hereunder nor shall any voluntary relinquishment
of such rights to be inferred therefrom. For purposes hereof, in the event
Tenant is a corporation, partnership, joint venture, trust or other entity other
than a natural person, any change in the direct or indirect ownership of Tenant
(whether pursuant to one or more transfers) which results in a change of more
than fifty percent (50%) except for sales of shares through a regulated public
exchange in the direct or indirect ownership of Tenant shall be deemed to be an
assignment within the meaning of this Section 15 and shall be subject to all
the provisions hereof. Except for a permissible assignment to a Related Entity,
any and all options, first rights of refusal, tenant improvement allowances and
other similar rights granted to Tenant in this Lease, if any, shall not be
assignable by Tenant unless expressly authorized in writing by Land Lord.
Notwithstanding anything to the contrary contained herein, so long as Tenant
delivers to Landlord (1) at least thirty (30) days prior written notice of its
intention to assign or sublease the Premises to any Related Entity, which
notice shall set forth the name of the Related
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Entity, (2) a copy of the proposed agreement pursuant to which such assignment
or sublease shall be effectuated, and (3) such other information concerning the
Related Entity as Landlord may reasonably require, including without limitation,
information regarding any change in the proposed use of any portion of the
Premises and any financial information with respect to such Related Entity, and
so long as Landlord approves, in writing, of any change in the proposed use of
the subject portion of the Premises, then Tenant may assign this Lease or
sublease any portion of the Premises (X) to any Related Entity, or (Y) in
connection with any merger, consolidation or sale of substantially all of the
assets of Tenant, without having to obtain the prior written consent of Landlord
thereto. For purposes of this Lease the term "Related Entity" shall mean and
refer to any corporation or entity which controls, is controlled by or is under
common control with Tenant, as all of such terms are customarily used in the
industry, and with a financial condition, in Landlord's reasonable judgement, is
reasonably adequate and sufficient in relation to the then remaining obligation
of Tenant under the Lease as of the proposed transfer date. Any assignment to a
Related Entity shall in no way relieve Tenant of any liability Tenant may have
under this Lease and such assignee or sublessee shall be jointly and severally
liable with Tenant hereunder.
15.2 EXCESS SUBLEASE RENTAL OR ASSIGNMENT CONSIDERATION: In the event of
any sublease or assignment of all or any portion of the Premises where the rent
or other consideration provided for in the sublease or assignment either
initially or over the term of the sublease or assignment exceeds the Rent or pro
rata portion of the Rent, as the case may be, for such space reserved in the
Lease, Tenant shall pay the Landlord monthly, as Additional Rent, at the same
time as the monthly installments of Rent are payable hereunder, seventy-five
percent (75%) of the excess of each such payment of rent or other consideration
in excess of the Rent called for hereunder less reasonable actual commissions
for such sublease.
15.3 WAIVER: Notwithstanding any assignment or sublease, or any
indulgences, waivers or extensions of time granted by Landlord to any assignee
or sublessee, or failure by Landlord to take action against any assignee or
sublessee, Tenant waives notice of any default of any assignee or sublessee and
agrees that Landlord may, at its option, proceed against Tenant without having
taken action against or joined such assignee or sublessee, except that Tenant
shall have the benefit of any indulgences, waivers and extensions of time
granted to any such assignee or sublessee.
16. AD VALOREM TAXES: Prior to delinquency, Tenant shall pay all taxes and
assessments levied upon trade fixtures, alterations, additions, improvements,
inventories and personal property located and/or installed on or in the Premises
by, or on behalf of, Tenant; and if requested by Landlord, Tenant shall promptly
deliver to Landlord copies of receipts for payment of all such taxes and
assessments. To the extent any such taxes are not separately assessed or billed
to Tenant, Tenant shall pay the amount thereof as invoiced by Landlord.
17. SUBORDINATION: Without the necessity of any additional document being
executed by Tenant for the purpose of effecting a subordination, and at the
election of Landlord or any bona fide mortgagee or deed of trust beneficiary
with a lien on all or any portion of the Premises or any ground lessor with
respect to the land of which the Premises are a part, the rights of Tenant under
this Lease and this Lease shall be subject and subordinate at all times to: (i)
all ground leases or underlying leases which may now exist or hereafter be
executed affecting the Building or the Land or both, and (ii) the lien of any
mortgage or deed of trust which may now exist or hereafter be executed in any
amount for which the Building, ground leases or underlying leases, or Landlord's
interest or estate in any of said items is specified as security.
Notwithstanding the foregoing, Landlord or any such ground lessor, mortgagee, or
any beneficiary shall have the right to subordinate or cause to be subordinated
any such ground leases or underlying leases or any such liens to this Lease. If
any ground lease or underlying lease terminates for any reason or any mortgage
or deed of trust is foreclosed or a conveyance in lieu of foreclosure is made
for any reason, Tenant shall, notwithstanding any subordination and upon the
request of such successor to Landlord, attorn to and become the Tenant of the
successor in interest to Landlord, provided such successor in interest will not
disturb Tenant's use, occupancy or quiet enjoyment of the Premises so long as
Tenant is not in default of the terms and provisions of this Lease. The
successor in interest to Landlord following foreclosure, sale or deed in lieu
thereof shall not be (a) liable for any act or omission of any prior lessor or
with respect to events occurring prior to acquisition of ownership; (b) subject
to any offsets or defenses which Tenant might have against any prior lessor; (c)
bound by prepayment of more than one (1) month's Rent; or (d) liable to Tenant
for any Security Deposit not actually received by such successor in interest to
the extent any portion or all of such Security Deposit has not already been
forfeited by, or refunded to, Tenant. Landlord shall be liable to Tenant for all
or any portion of the Security Deposit not forfeited by, or refunded to Tenant,
until and unless Landlord transfers such Security Deposit to the successor in
interest. Tenant covenants and agrees to execute (and acknowledge if required by
Landlord, any lender or ground lessor) and deliver, within five (5) days of a
demand or request by Landlord and in the form requested by Landlord, ground
lessor, mortgagee or beneficiary, and additional
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documents evidencing the priority or subordination of this Lease with respect
to any such ground leases or underlying leases or the lien of any such mortgage
or deed of trust. Tenant's failure to timely execute and deliver such
additional documents shall, at Landlords's option, constitute a material default
hereunder. It is further agreed that Tenant shall be liable to Landlord, and
shall indemnify Landlord from and against any loss, cost, damage or expense,
incidental, consequential, or otherwise, arising or accruing directly or
indirectly, from any failure of Tenant to execute or deliver to Landlord any
such additional documents, together with any and all Enforcement Expenses.
18. RIGHT OF ENTRY: Tenant grants Landlord or its agents the right to enter
the Premises with 24 hours prior notice (except in the event of an emergency)
at all reasonable times for purposes of inspection, exhibition, posting of
notices, repair or alteration. It is further agreed that Landlord shall have
the right to use any and all means Landlord deems necessary to enter the
Premises in an emergency. Landlord shall have the right to place "for rent" or
"for lease" signs on the outside of the Premises and the Building. Landlord
shall also have the right to place "for sale" signs on the outside of the
Building. Tenant hereby waives any claim from damages or for any injury or
inconvenience to or interference with Tenant's business, or any other loss
occasioned thereby except for any claim for any of the foregoing arising out of
the sole active gross negligence or willful misconduct of Landlord or its
authorized representatives.
19. ESTOPPEL CERTIFICATE: Tenant shall execute (and acknowledge if required by
any lender or ground lessor) and deliver to Landlord, within (5) business days
after Landlord provides such to Tenant, a statement in writing certifying that
this Lease is unmodified and in full force and effect (or, if modified, stating
the nature of such modification), the date to which the Rent and other charges
are paid in advance, if any, acknowledging that there are not, to Tenant's
knowledge, any uncured defaults on the part of Landlord hereunder or specifying
such defaults as are claimed, and such other matters as Landlord may
reasonably require. Any such statement may be conclusively relied upon by
Landlord and any prospective purchaser or encumbrancer of the Premises.
Tenant's failure to deliver such statement within such time shall be conclusive
upon the Tenant that (a) this Lease is in full force and effect, without
modification except as may be represented by Landlord; (b) there are no uncured
defaults in Landlord's performance; and (c) not more than one month's Rent has
been paid in advance, except in those instances when Tenant pays Rent quarterly
in advance pursuant to Section 8 hereof, then not more than three month's Rent
has been paid in advance. Failure by Tenant to so deliver such certified
estoppel certificate shall be a material default of the provisions of this
Lease. Tenant shall be liable to Landlord, and shall indemnify Landlord from
and against any loss, cost, damage or expense, incidental, consequential, or
otherwise, arising or accruing directly or indirectly, from any failure of
Tenant to execute or deliver to Landlord any such certified estoppel
certificate; together with any and all Enforcement Expenses.
20. TENANT'S DEFAULT: The occurrence of any one or more of the following
events shall, at Landlord's option, constitute a material default by Tenant of
the provisions of this Lease:
20.1 The abandonment of the Premises by Tenant or the vacation of the
Premises by Tenant which would cause any insurance policy to be invalidated or
otherwise lapse. Tenant agrees to notice and service of notice as provided for
in this Lease and waives any right to any other or further notice or service of
notice which Tenant may have under any statute or law now or hereafter in
effect;
20.2 The failure by Tenant to make any payment of Rent, Additional Rent
or any other payment required hereunder within three (3) days of the date said
payment is due. Tenant agrees to notice and service of notice as provided for
in this Lease and waives any right to any other or further notice or service of
notice which Tenant may have under any statute or law now or hereafter in
effect;
20.3 The failure by Tenant to observe, perform or comply with any of the
conditions, covenants or provisions of this Lease (except failure to make any
payment of Rent and/or Additional Rent) and such failure is not cured within
(i) thirty (30) days of the date on which Landlord delivers written notice of
such failure to Tenant, complying with the notice requirements of Section 31.10
hereof, for all failures other than with respect to Hazardous Materials, and
(ii) ten (10) days of the date on which Landlord delivers written notice of
such failure to Tenant for all failures in any way related to Hazardous
Materials. However, Tenant shall not be in default of its obligations hereunder
if such failure cannot reasonably be cured within such thirty (30) or ten (10)
day period as applicable, and Tenant promptly commences, and thereafter
diligently proceeds with same to completion, all actions necessary to cure such
failure as soon as is reasonably possible, but in no event shall the completion
of such cure be later than forty five (45) days after the date on which
Landlord delivers to Tenant written notice of such failure, unless Landlord,
acting reasonably and in good faith, otherwise expressly agrees in writing to a
longer
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period of time based upon the circumstances relating to such failure as well as
the nature of the failure and the nature of the actions necessary to cure such
failure;
20.4 The making of a general assignment by Tenant for the benefit of
creditors, the filing of a voluntary petition by Tenant or the filing of an
involuntary petition by any of Tenant's creditors seeking the rehabilitation,
liquidation, or reorganization of Tenant under any law relating to bankruptcy,
insolvency or other relief of debtors and, in the case of an involuntary action,
the failure to remove or discharge the same within sixty (60) days of such
filing, the appointment of a receiver or other custodian to take possession of
substantially all of Tenant's assets or this leasehold, Tenant's insolvency or
inability to pay Tenant's debts or failure generally to pay Tenant's debt when
due, any court entering a decree or order directing the winding up or
liquidation of Tenant or of substantially all of Tenant's assets, Tenant taking
any action toward the dissolution or winding up of Tenant's affairs, the
cessation or suspension of Tenant's use of the Premises, or the attachment,
execution or other judicial seizure of substantially all of Tenant's assets or
this leasehold;
20.5 Tenant's use of storage of Hazardous Materials in, on or about the
Premises and/or the Building, other than as expressly permitted by the
provisions of Section 29 below; or
20.6 The making of any material misrepresentation or omission by Tenant in
any materials delivered by or on behalf of Tenant to Landlord pursuant to this
Lease.
21. REMEDIES FOR TENANT'S DEFAULT:
21.1 LANDLORD'S RIGHTS: In the event of Tenant's material default under
this Lease, Landlord may terminate Tenant's right to possession of the Premises
by any lawful means in which case upon delivery of written notice by Landlord
this Lease shall terminate on the date specified by Landlord in such notice and
Tenant shall immediately surrender possession of the Premises to Landlord. In
addition, the Landlord shall have the immediate right of re-entry whether or not
this Lease is terminated, and if this right of re-entry is exercised following
abandonment of the Premises by Tenant, Landlord may consider any personal
property belonging to Tenant and left on the Premises to also have
been abandoned. No re-entry or taking possession of the Premises by Landlord
pursuant to this Section 21 shall be construed as an election to terminate this
Lease unless a written notice of such intention is given to Tenant. If Landlord
relets the Premises or any portion thereof, (i) Tenant shall be liable
immediately to Landlord for all costs Landlord incurs in reletting the Premises
or any part thereof, including, without limitation, broker's commissions,
expenses of cleaning, redecorating, and further improving the Premises and other
similar costs (collectively, the "Reletting Costs"), and (ii) the rent received
by Landlord from such reletting shall be applied to the payment of, first, any
indebtedness from Tenant to Landlord other than Base Rent, Operating Expenses,
Tax Expenses and Utility Expenses; second all costs including maintenance,
incurred by Landlord in reletting; and, third, Base Rent, Operating Expenses,
Tax Expenses, Utility Expenses, and all other sums due
under this Lease. Any and all of the Reletting Costs shall be fully chargeable
to Tenant and shall not be prorated or otherwise amortized in relation to any
new lease for the Premises or any portion thereof. After deducting the payments
referred to above, any sum remaining from the rental Landlord receives from
reletting shall be held by Landlord and applied in payment of future Rent as
Rent becomes due under this Lease. In no event shall Tenant be entitled to any
excess rent received by Landlord. Reletting may be for a period shorter or
longer than the remaining term of this Lease. No act by Landlord other than
giving written notice to Tenant shall terminate this Lease. Acts of maintenance,
efforts to relet the Premises or the appointment of a receiver on Landlord's
initiative to protect Landlord's interest under this Lease shall not constitute
a termination of Tenant's right to possession. So long as this Lease is not
terminated, Landlord shall have the right to remedy any default of Tenant, to
maintain or improve the Premises, to cause a receiver to be appointed to
administer the Premises and new or existing subleases and to add to the Rent
payable hereunder all of Landlord's reasonable costs in so doing, with interest
at the maximum rate permitted by law from the date of such expenditure.
21.2 DAMAGES RECOVERABLE: If Tenant breaches this Lease and abandons the
Premises before the end of the Term, or if Tenant's right to possession is
terminated by Landlord because of a breach or default under this Lease, then in
either such case, Landlord may recover from Tenant all damages suffered by
Landlord as a result of Tenant's failure to perform its obligations hereunder,
including, but not limited to, the cost of any Tenant Improvements constructed
by or on behalf of Tenant pursuant to Exhibit B hereto, the portion of any
broker's or leasing agent's commission incurred with respect to the leasing of
the Premises to Tenant for the balance of the Term of the Lease remaining after
the date on which Tenant is in default of its obligations hereunder, and all
Reletting Costs, and the worth at the time of the award (computed in accordance
with paragraph (3) of Subdivision (a) of Section 1951.2 of the California Civil
Code) of the amount by which the Rent then unpaid hereunder for the balance of
the Lease Term exceeds the amount of such loss of Rent for the same period which
Tenant proves could be
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reasonably avoided by Landlord and in such case, Landlord prior to the award,
may relet the Premises for the purpose of mitigating damages suffered by
Landlord because of Tenant's failure to perform its obligations hereunder;
provided, however, that even though Tenant has abandoned the Premises following
such breach, this Lease shall nevertheless continue in full force and effect
for as long as Landlord does not terminate Tenant's right of possession, and
until such termination, Landlord shall have the remedy described in Section
1951.4 of the California Civil Code (Landlord may continue this Lease in effect
after Tenant's breach and abandonment and recover Rent as it becomes due, if
Tenant has the right to sublet or assign, subject only to reasonable
limitations) and may enforce all its rights and remedies under this Lease,
including the right to recover the Rent from Tenant as it becomes due
hereunder. The "worth at the time of the award" within the meaning of
Subparagraphs (a)(1) and (a)(2) of Section 1951.2 of the California Civil Code
shall be computed by allowing interest at the rate of ten percent (10%) per
annum. Tenant waives redemption or relief from forfeiture under California
Civil Code of Civil Procedure Sections 1174 and 1179, or under any other
present or future law, in the event Tenant is evicted or Landlord takes
possession of the Premises by reason of any default of Tenant hereunder.
21.3 RIGHTS AND REMEDIES CUMULATIVE: The foregoing rights and remedies of
Landlord are not exclusive; they are cumulative in addition to any rights and
remedies now or hereafter existing at law, in equity by statute or otherwise, or
to any equitable remedies Landlord may have, and to any remedies Landlord may
have under bankruptcy laws or laws affecting creditor's rights generally. In
addition to all remedies set forth above, if Tenant materially defaults under
this Lease, any and all Base Rent waived by Landlord under Section 3 above shall
be immediately due and payable to Landlord and all options granted to Tenant
hereunder shall automatically terminate, unless otherwise expressly agreed to in
writing by Landlord.
21.4 WAIVER OF A DEFAULT: The waiver by Landlord of any default of any
provision of this Lease shall not be deemed or construed a waiver of any other
default by Tenant hereunder or of any subsequent default of this Lease, except
for the default specified in the waiver.
22. HOLDING OVER: If Tenant holds possession of the Premises after the
expiration of the Term of this Lease with Landlord's consent, Tenant shall
become a tenant from month-to-month upon the terms and provisions of this
Lease, provided the monthly Base Rent during such hold over period shall be
150% of the Base Rent due on the last month of the Lease Term, payable in
advance on or before the first day of each month. Acceptance by Landlord of the
monthly Base Rent without the additional fifty percent (50%) increase of Base
Rent shall not be deemed or construed as a waiver by Landlord of any of its
rights to collect the increased amount of the Base Rent as provided herein at
any time. Such month-to-month tenancy shall not constitute a renewal or
extension for any further term. All options, if any, granted under the terms of
this Lease shall be deemed automatically terminated and be of no force or
effect during said month-to-month tenancy. Tenant shall continue in possession
until such tenancy shall be terminated by either Landlord or Tenant giving
written notice of termination to the other party at least thirty (30) days
prior to the effective date of termination. This paragraph shall not be
construed as Landlord's permission for Tenant to hold over. Acceptance of Base
Rent by Landlord following expiration or termination of this Lease shall not
constitute a renewal of this Lease.
23. LANDLORD'S DEFAULT: Landlord shall not be deemed in breach or default of
this Lease unless Landlord fails within a reasonable time to perform an
obligation required to be performed by Landlord hereunder. For purposes of this
provision, a reasonable time shall not be less than thirty (30) days after
receipt by Landlord of written notice specifying the nature of the obligation
Landlord has not performed; provided, however, that if the nature of Landlord's
obligation is such that more than thirty (30) days, after receipt of written
notice, is reasonably necessary for its performance, then Landlord shall not be
in breach or default of this Lease if performance of such obligation is
commenced within such thirty (30) day period and thereafter diligently pursued
to completion.
24. PARKING: Tenant shall have a license to the exclusive use the number of
non-designated and non-exclusive parking spaces specified in the Basic Lease
Information (subject to Tenant's assignment or subletting of the Premises).
25. SALE OF PREMISES: In the event of any sale of the Premises by Landlord or
the cessation otherwise of Landlord's interest therein, Landlord shall be and
is hereby entirely released from any and all of its obligations to perform or
further perform under this Lease and from all liability hereunder accruing from
or after the date of such sale; and the purchaser, at such sale or any
subsequent sale of the Premises shall be deemed, without any further agreement
between the parties or their successors in interest or between the parties and
any such purchaser, to have assumed and agreed to carry out any and all of the
covenants and obligations of the Landlord under this Lease. For purposes of
this Section 25, the term "Landlord"
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means only the owner and/or agent of the owner as such parties exist as of the
date on which Tenant executes this Lease. A ground lease or similar long term
lease by Landlord of the entire Building, of which the Premises are a part,
shall be deemed a sale within the meaning of this Section 25. Tenant agrees to
attorn to such new owner provided such new owner does not disturb Tenant's use,
occupancy or quiet enjoyment of the Premises so long as Tenant is not in default
of any of the provisions of this Lease.
26. WAIVER: No delay or omission in the exercise of any right or remedy of
Landlord on any default by Tenant shall impair such a right or remedy or be
construed as a waiver. The subsequent acceptance of Rent by Landlord after
default by Tenant of any covenant or term of this Lease shall not be deemed a
waiver of such default, other than a waiver of timely payment for the particular
Rent payment involved, and shall not prevent Landlord from maintaining an
unlawful detainer or other action based on such breach. No payment by Tenant or
receipt by Landlord of a lesser amount than the monthly Rent and other sums due
hereunder shall be deemed to be other than on account of the earliest Rent or
other sums due, nor shall any endorsement or statement on any check or
accompanying any check or payment be deemed an accord and satisfaction; and
Landlord may accept such check or payment without prejudice to Landlord's right
to recover the balance of such Rent or other sum or pursue any other remedy
provided in this Lease. No failure, partial exercise or delay on the part of the
Landlord in exercising any right, power or privilege hereunder shall operate as
a waiver thereof.
27. CASUALTY DAMAGE: If the Premises or any part thereof shall be damaged by
fire or other casualty, Tenant shall give prompt written notice thereof to
Landlord. In case the Building shall be so damaged by fire or other casualty
that substantial alteration or reconstruction of the Building shall, in
Landlord's sole opinion, be required (whether or not the Premises shall have
been damaged by such fire or other casualty), Landlord may, at its option,
terminate this Lease by notifying Tenant in writing of such termination within
ninety (90) days after the date of such damage, in which event the Rent shall be
abated as of the date of such damage. If Landlord does not elect to terminate
this Lease, and provided insurance proceeds and any contributions from Tenant,
if necessary, are available to fully repair the damage, Landlord shall within
one hundred twenty (120) days after the date of such damage commence to repair
and restore the Building and shall proceed with reasonable diligence to restore
the Building (except that Landlord shall not be responsible for delays outside
its control) to substantially the same condition in which it was immediately
prior to the happening of the casualty; provided, Landlord shall not be required
to rebuild, repair, or replace any part of Tenant's furniture, furnishings,
fixtures and/or equipment removable by Tenant or any improvements, alterations
or additions installed by or for the benefit of Tenant under the provisions of
this Lease. Landlord shall not in any event be required to spend for such work
an amount in excess of the insurance proceeds (excluding any deductible) and
any contributions from Tenant, if necessary, actually received by Landlord as a
result of the fire or other casualty. Landlord shall not be liable for any
inconvenience or annoyance to Tenant, injury to the business of Tenant, loss of
use of any part of the Premises by the Tenant or loss of Tenant's personal
property resulting in any way from such damage or the repair thereof, except
that, subject to the provisions of the next sentence, Landlord shall allow
Tenant a fair diminution of Rent during the time and to the extent the Premises
are unfit for occupancy. Notwithstanding anything to the contrary contained
herein, if the Premises or any other portion of the Building be damaged by fire
or other casualty resulting from the intentional or negligent acts or omissions
of Tenant or any of Tenant's Representatives, (i) the Rent shall not be
diminished during the repair of such damage, (ii) Tenant shall not have any
right to terminate this Lease due to the occurrence of such casualty or damage,
and (iii) Tenant shall be liable to Landlord for the cost and expense of the
repair and restoration of all or any portion of the Building caused thereby
(including, without limitation, any deductible) to the extent such cost and
expense is not covered by insurance proceeds. In the event the holder of any
indebtedness secured by the Premises requires that the insurance proceeds be
applied to such indebtedness, then Landlord shall have the right to terminate
this Lease by delivering written notice of termination to Tenant within thirty
(30) days after the date of notice to Tenant of any such event, whereupon all
rights and obligations shall cease and terminate hereunder except for those
obligations expressly intended to survive any such termination of this Lease.
Except as otherwise provided in this Section 27, Tenant hereby waives the
provisions of Sections 1932(2.), 1933(4.), 1941 and 1942 of the California Civil
Code.
28. CONDEMNATION: If twenty-five percent (25%) or more of the Premises is
condemned by eminent domain, inversely condemned or sold in lieu of condemnation
for any public or quasi-public use or purpose ("Condemned"), then Tenant or
Landlord may terminate this Lease as of the date when physical possession of the
Premises is taken and title vests in such condemning authority, and Rent shall
be adjusted to the date of termination. Tenant shall not because of such
condemnation assert any claim against Landlord or the condemning authority for
any compensation because of such condemnation, and Landlord shall be entitled to
receive the entire amount of any award without deduction for any estate of
interest or other interest of Tenant. If neither party elects to terminate this
Lease, Landlord shall, if
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necessary, promptly proceed to restore the Premises or the Building to
substantially its same condition prior to such partial condemnation, allowing
for the reasonable effects of such partial condemnation, and a proportionate
allowance shall be made to Tenant, as solely determined by Landlord, for the
Rent corresponding to the time during which, and to the part of the Premises of
which, Tenant is deprived on account of such partial and
restoration in excess of the amount received by Landlord as compensation
awarded.
29. ENVIRONMENTAL MATTERS/HAZARDOUS MATERIALS:
29.1 HAZARDOUS MATERIALS DISCLOSURE CERTIFICATE: Prior to executing
this lease, Tenant has completed, executed and delivered to Landlord Tenant's
initial Hazardous Materials Certificate (the "Initial HazMat
Certificate"), a copy of which is attached hereto as Exhibit G and incorporated
herein by this reference. Tenant covenants, represents and warrants to
Landlord that the information on the Initial HazMat Certificate is true and
correct and accurately describes the use(s) of Hazardous Materials which will
be made and/or used on the Premises by Tenant. Tenant shall commencing with
the date which is one year from the Commencement Date and continuing every year
thereafter, complete, execute, and deliver to Landlord, a Hazardous Materials
Disclosure Certificate ("the "HazMat Certificate") describing Tenant's present
use of Hazardous Materials on the Premises, and any other reasonably necessary
documents as requested by Landlord. The HazMat Certificate required hereunder
shall be in substantially the form as that which is attached hereto as Exhibit
E.
29.2 DEFINITION OF HAZARDOUS MATERIALS: As used in this Lease, the
term Hazardous Materials shall mean and include (a) any hazardous or toxic
wastes, materials or substances, and other pollutants or contaminants,
which are or become regulated by any Environmental Laws; (b) petroleum,
petroleum by products, gasoline, diesel fuel, crude oil or any fraction
thereof; (c) asbestos and asbestos containing material, in any form, whether
friable or non-friable; (d) polychlorinated biphenyls; (e) radioactive
materials, (f) lead and lead-containing materials; (g) any other material,
waste or substance displaying toxic, reactive, ignitable or corrosive
characteristics, as all such terms are used in their broadcast sense, and are
defined or become defined by any Environmental Law (defined below); or (h) any
materials which cause or threatens to cause a nuisance upon or waste to any
portion of the Premises, the Building, or any surrounding property; or poses or
threatens to pose a hazard to the health and safety of persons on the Premises
or any surrounding property.
29.3 PROHIBITION; ENVIRONMENTAL LAWS: Tenant shall not be entitled
to use nor store any Hazardous Materials on, in, or about the Premises and the
Building, or any portion of the foregoing, without, in each instance, obtaining
Landlord's prior written consent thereto. If Landlord consents to any such
usage or storage, then Tenant shall be permitted to use and/or store only those
Hazardous Materials that are necessary for Tenant's business and to the extent
disclosed in the HazMat Certificate and as expressly approved by Landlord in
writing, provided that such usage and storage is only to the extent of the
quantities of Hazardous Materials as specified in the then applicable HazMat
Certificate and as expressly approved by Landlord and provided further that such
usage and storage is in full compliance with any and all local, state and
federal environmental, health and/or safety-related laws, statutes, orders,
standards, courts' decision, ordinances, rules and regulations (as interpreted
by judicial and administrative decisions), decrees, directives, guidelines,
permits or permit condition, currently existing and as amended, enacted, issued
or adopted in the future which are or become applicable to Tenant or all or any
portion of the Premises (collectively, the "Environmental Laws"). Tenant agrees
that any changes to the type and/or quantities of Hazardous Materials specified
in the most recent HazMat Certificate may be implemented only with the prior
written consent of Landlord, which consent may be given or withheld in
Landlord's sole discretion. Tenant shall not be entitled nor permitted to
install any tanks under, on or about the Premises for the storage of Hazardous
Materials without the express written consent of the Landlord, which may be
given or withheld in Landlord's sole discretion. Landlord shall have the right
at all times during the Term of this Lease to (i) inspect the Premises, (ii)
conduct tests and investigations to determine whether Tenant is in compliance
with the provisions of this Section 29, and (iii) request lists of all Hazardous
Materials used, stored or otherwise located on, under or about any portion of
the Premises. The cost of all such inspections, tests and investigations shall
be borne solely by Tenant, if Landlord reasonably determines that Tenant or any
of Tenant's Representatives are directly or indirectly responsible in any manner
for any contamination revealed by such inspections, tests and investigations.
The aforementioned rights granted herein to Landlord and its representatives
shall not create (a) a duty on Landlord's part to inspect, test, investigate,
monitor or otherwise observe the Premises or the activities of Tenant and
Tenant's Representatives with respect to Hazardous Materials, including without
limitation, Tenant's operation, use and any remediation related thereto, or (b)
liability on the part of Landlord and its representatives for Tenant's use,
storage, disposal or remediation of Hazardous Materials, it being understood
that Tenant shall be solely responsible for all liability in connection
therewith.
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29.4 TENANT'S ENVIRONMENTAL OBLIGATIONS: Tenant shall give to Landlord
immediate verbal and follow-up written notice of any spills, releases,
discharges, disposals, emissions, migrations, removals or transportation of
Hazardous Materials on, under or about any portion of the Premises. Tenant, at
its sole cost and expense, covenants and warrants to promptly investigate,
clean up, remove, restore and otherwise remediate (including, without
limitation, preparation of any feasibility studies or reports and the
performance of any and all closures) any spill, release, discharge, disposal,
emission, migration or transportation of Hazardous Materials arising from or
related to the intentional or negligent acts or omissions of Tenant or Tenant's
Representatives such that the affected portions of the Premises and any
adjacent property are returned to the condition existing prior to the
appearance of such Hazardous Materials. Any such investigation, clean up,
removal, restoration and other remediation shall only be performed after Tenant
has obtained Landlord's prior written consent, which consent shall not be
unreasonably withheld so long as such actions would not potentially have a
material adverse long-term or short-term effect on any portion of the Premises
or the Building. Notwithstanding the foregoing, Tenant shall be entitled to
respond immediately to an emergency without first obtaining Landlord's prior
written consent. Tenant, at its sole cost and expense, shall conduct and
perform, or cause to be conducted and performed, all closures as required by
any Environmental Laws or any agencies or other governmental authorities having
jurisdiction thereof. If Tenant fails to so promptly investigate, clean up,
remove, restore, provide closure or otherwise so remediate, Landlord may, but
without obligation to do so, take any and all steps necessary to rectify the
same and Tenant shall promptly reimburse Landlord, upon demand, for all costs
and expenses to Landlord of performing investigation, clean up, removal,
restoration, closure and remediation work. All such work undertaken by Tenant,
as required herein, shall be performed in such a manner so as to enable
Landlord to make full economic use of the Premises and the Building after the
satisfactory completion of such work.
29.5 ENVIRONMENTAL INDEMNITY: In addition to Tenant's obligations as set
forth hereinabove, Tenant agrees to, and shall, protect, indemnify, defend
(with counsel acceptable to Landlord) and hold Landlord and the other
indemnitees harmless from and against any and all claims, judgments, damages,
penalties, fines, liabilities, losses (including, without limitation,
diminution in value of any portion of the Premises or the Building, damages for
the loss of or restriction on the use of rentable or usable space, and from any
adverse impact of Landlord's marketing of any space within the Building),
suits, administrative proceedings and costs (including, but not limited to,
attorneys' and consultant fees and court costs) arising at any time during or
after the Term of this Lease in connection with or related to, directly or
indirectly, the use, presence, transportation, storage, disposal, migration,
removal, spill, release or discharge of Hazardous Materials on, in or about any
portion of the Premises or the Building as a result (directly or indirectly) of
the intentional or negligent acts or omissions of Tenant or any of Tenant's
Representatives. Neither the written consent of Landlord to the presence, use
or storage of Hazardous Materials in, on, under or about any portion of the
Premises, and/or the Building, nor the strict compliance by Tenant with all
Environmental Laws shall excuse Tenant and Tenant's officers and directors from
its obligations of indemnification pursuant hereto. Tenant shall not be
relieved of its indemnification obligations under the provisions of this
Section 29.5 due to Landlord's status as either an "owner" or "operator" under
any Environmental Laws.
29.6 SURVIVAL: Tenant's obligations and liabilities pursuant to the
provisions of this Section 29 shall survive the expiration or earlier
termination of this Lease. If it is determined by Landlord that the condition
of all or any portion of the Premises and/or the Building is not in compliance
with the provisions of this Lease with respect to Hazardous Materials,
including without limitation all Environmental Laws at the expiration or
earlier termination of this Lease, then in Landlord's sole discretion, Landlord
may require Tenant to hold over possession of the Premises until Tenant can
surrender the Premises to Landlord in the condition in which the Premises
existed as of the Commencement Date and prior to the appearance of such
Hazardous Materials except for reasonable wear and tear, including without
limitation, the conduct or performance of any closures as required by any
Environmental Laws. The burden of proof hereunder shall be upon Tenant. For
purposes hereof, the term "reasonable wear and tear" shall not include any
deterioration in the condition or diminution of the value of any portion of the
Premises and/or the Building in any manner whatsoever related to directly, or
indirectly, Hazardous Materials. Any such holdover by Tenant will be with
Landlord's consent, will not be terminable by Tenant in any event or
circumstance and will otherwise be subject to the provisions of Section 22 of
this Lease.
29.7 EXCULPATION OF TENANT: Tenant shall not be liable to landlord for
nor otherwise obligated to Landlord under any provision of the Lease with
respect to the following: (i) any claim, remediation, obligation,
investigation, obligation, liability, cause of action, attorney's fees,
consultants' costs, expense or damage resulting from any Hazardous Materials
present in, on or about the Premises to the extent not caused or otherwise
permitted, directly or indirectly, by Tenant or Tenant's Representatives; or
(ii) the removal, investigation, monitoring or remediation of any Hazardous
Material present in, on or about the Premises caused by any source, including
third parties, other than Tenant or Tenant's Representatives; provided,
however, Tenant shall be fully liable for and otherwise obligated to Landlord
under the provisions of this Lease for all liabilities, costs, damages,
penalties, claims,
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judgements, expenses (including without limitation, attorneys' and experts' fees
and costs) and losses to the extent (a) Tenant or any of Tenant's
Representatives contributes to the presence of such Hazardous Materials, or
Tenant and/or any of Tenant's Representatives exacerbates the conditions caused
by such Hazardous Materials, or (b) Tenant and/or Tenant's Representatives
allows or permits persons over which Tenant or any of Tenant's Representatives
has control, and/or for which Tenant or any of Tenant's Representatives are
legally responsible for, to cause such Hazardous Materials to be present in, on,
under through or about any portion of the Premises, or (c) Tenant and/or any of
Tenant's Representatives does not take all reasonably appropriate actions to
prevent such persons over which Tenant or any of Tenant's Representatives has
control and/or for which Tenant or any of Tenant's Representatives are legally
responsible from causing the presence of hazardous Materials in, on, under,
through or about any portion of the Premises.
29.8 ACKNOWLEDGMENT OF ENVIRONMENTAL REPORT: Tenant hereby
acknowledges that Landlord has delivered and Tenant has received, reviewed and
approved of that certain Phase I Environmental Site Assessment Report prepared
by Xxxxx & Xxxxxxxx, dated September, 1997.
30. FINANCIAL STATEMENTS: Tenant, for the reliance of Landlord, any
lender holding or anticipated to acquire a lien upon the Premises or the
Building or any portion thereof, or any prospective purchaser of the Building or
the Premises or any portion thereof, within ten (10) days after Landlord's
request therefor, but not more often than once annually so long as Tenant is not
in default of this Lease, shall deliver to Landlord the then current audited
financial statements of Tenant (including interim periods following the end of
the last fiscal year for which annual statements are available) which statements
shall be prepared or compiled by a certified public accountant and shall present
fairly the financial condition of Tenant at such dates and the result of its
operations and changes in its financial positions for the periods ended on such
dates. If an audited financial statement has not been prepared, Tenant shall
provide Landlord with an unaudited financial statement and/or such other
information, the type and form of which are acceptable to Landlord in Landlord's
reasonable discretion, which reflects the financial condition of Tenant. If
Landlord so requests, Tenant shall deliver to Landlord an opinion of a certified
public accountant, including a balance sheet and profit and loss statement for
the most recent prior year, all prepared in accordance with generally accepted
accounting principles consistently applied. Any and all options granted to
Tenant hereunder shall be subject to and conditioned upon Landlord's reasonable
approval of Tenant's financial condition at the time of Tenant's exercise of any
such option.
31. GENERAL PROVISIONS:
31.1 TIME. Time is of the essence in this Lease and with respect to each
and all of its provisions in which performance is a factor.
31.2 SUCCESSORS AND ASSIGNS. The covenants and conditions herein
contained, subject to the provisions as to assignment, apply to and bind the
heirs, successors, executors, administrators and assigns of the parties hereto.
31.3 RECORDATION. Tenant shall not record this Lease or a short form
memorandum hereof without the prior written consent of the Landlord.
31.4 LANDLORD'S PERSONAL LIABILITY. The liability of Landlord (which,
for purposes of this Lease, shall include Landlord and the owner of the
Building if other than the Landlord) to Tenant for any default by Landlord
under the terms of this Lease shall be limited to the actual interest of
Landlord and its present or future partners or members in the Premises or the
Building, and Tenant agrees to look solely to the Premises for satisfaction of
any liability and shall not look to other assets of Landlord nor seek any
recourse against the assets of the individual partners, members, directors,
officers, shareholders, agents or employees of Landlord (including without
limitation, any property management company of Landlord); it being intended
that Landlord and the individual partners, members, directors, officers,
shareholders, agents and employees of Landlord (including without limitation,
any property management company of Landlord) shall not be personally liable in
any manner whatsoever for any judgement or deficiency. The liability of
Landlord under this Lease is limited to its actual period of ownership of title
to the Building, and Landlord shall be automatically released from further
performance under this Lease upon transfer of Landlord's interest in the
Premises or the Building.
31.5 SEPARABILITY. Any provisions of this Lease which shall prove to be
invalid, void or illegal shall in no way affect, impair or invalidate any other
provisions hereof and such other provision shall remain in full force and
effect.
31.6 CHOICE OF LAW. This Lease shall be governed by, and construed in
accordance with, the laws of the State of California.
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EXHIBIT A TO PURCHASE AND SALE AGREEMENT
LEGAL DESCRIPTION OF THE LAND
All that certain real property situated in the City of San Xxxx, County of
Santa Xxxxx, State of California, described as follows:
Parcel A, as shown on that Parcel Map filed for record in the office of the
Recorder of the County of Santa Xxxxx, State of California on February 24,
1984, in Book 525 of Maps, pages(s) 4.
APN No: 000-00-000
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EXHIBIT B TO PURCHASE AND SALE AGREEMENT
ASSIGNMENT AND ASSUMPTION OF LEASES
This Assignment and Assumption of Leases (the "Assignment") is made and
entered into as of this day of , 199 ("Assignment Date"), by and between
Lincoln-RECP Great Oaks OPCO, LLC, a Delaware limited liability company
("Assignor"), and Jabil Circuit, Inc., a Delaware corporation ("Assignee"), with
reference to the following facts.
RECITALS
A. Assignor and Assignee are parties to that certain Purchase and Sale
Agreement, made and entered into as of , 199 (the "Purchase Agreement"),
pursuant to which Assignor agreed to sell to Assignee, and Assignee agreed to
purchase from Assignor that certain improved real property located at 00-00
Xxxxx Xxxx Xxxx., Xxx Xxxx, Xxxxxxxxxx, as legally described in Exhibit A
attached hereto and made a part hereof (the "Land") together with all (i)
improvements and fixtures, including that certain office building (collectively,
the "Improvements") and personal property (the "Personal Property") owned by
Assignor (if any) located on the Land, and (ii) easements, appurtenances, rights
and privileges belonging thereto. The Land, the Improvements, the Personal
Property and the interests described in (ii) above are collectively referred to
herein as the "Property."
B. Assignor has previously entered into certain leases of the Property, as
more particularly described in Schedule 1 attached hereto and made a part hereof
(collectively, the "Leases").
C. Assignor has accepted rent prepaid more than one (1) month in advance
and security deposits from the tenants under the Leases in the amounts set forth
in Schedule 2 attached hereto and made a part hereof (collectively, the
"Security Deposits").
D. Assignee has acquired fee title to the Property from Assignor on the
Assignment Date. Assignor now desires to assign and transfer to Assignee all of
Assignor's rights, title and interests in and to, and obligations under the
Leases and the Security Deposits, and Assignee desires to assume all of
Assignor's rights, title, interests and obligations in, to and under the Leases
and the Security Deposits, as set forth herein.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which is hereby acknowledged, the parties hereto agree as follows:
1. Assignment and Assumption. Effective as of the Assignment Date,
Assignor hereby grants, transfers, conveys, bargains, assigns and delegates to
Assignee all of its rights, title, interests and obligations of Assignor in, to
and under the Leases and the Security Deposits. Assignee hereby accepts such
assignment and delegation by Assignor and agrees to assume all the obligations
of Assignor under the Leases and with respect to the Security Deposits accruing
on or after the Assignment Date. Notwithstanding the foregoing or anything to
the contrary contained herein, Assignor shall retain all rights, title and
interest in and to all rentals and other amounts payable by the tenants under
the Leases for the period of time prior to the Assignment Date.
2. Assignee's Indemnity. Assignee agrees to, and shall, indemnify, defend
(with counsel reasonably acceptable to Assignor), and hold each of the parties
comprising Assignor and each of their partners, trustees, employees,
representatives, successors and assigns (collectively, the "Assignor
Indemnitees") harmless from and against any and all claims, damages,
liabilities, judgments, demands, costs and expenses, including, without
limitation, reasonable attorneys' fees and costs (collectively, the "Claims"),
under the Leases and with respect to the Security Deposits transferred to
Assignee which accrue on or after the Assignment Date in connection with the
obligations assumed by Assignee hereunder.
3. Attorneys' Fees. If Assignor or Assignee bring any action against the
other for the enforcement or interpretation of this Assignment, the losing party
shall pay to the prevailing party a reasonable sum for attorneys' fees and
costs.
4. Counterparts. This Assignment may be executed in counterparts, each of
which shall be deemed an original, and all of which shall taken together be
deemed one document.
5. Survival. This Assignment and the provisions hereof shall inure to the
benefit of and be binding upon the parties to this Assignment and their
respective successors, heirs and permitted assigns. There shall be no third
party beneficiaries of, in, to or under this Assignment.
6. Limited Liability. Assignee on behalf of itself and its agents,
employees, representatives, successors and assigns hereby agrees that in no
event or circumstance shall any of the employees, representatives, officers,
directors, agents, property management company, affiliated or related entities
of Assignor or Assignor's property management company, namely Lincoln Property
Company Management Company, Inc., have any personal liability under this
Assignment, or to any of Assignee's creditors, or to any other party in
connection with the Property.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment as of
the Assignment Date.
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ASSIGNOR:
LINCOLN-RECAP GREAT OAKS OPCO, LLC,
a Delaware limited liability company
By: RECP LINCOLN GREAT OAKS HOLDCO, LLC,
a Delaware limited liability company
Its Managing Member
By: CF REALTY, INC.,
a Delaware corporation
Its Managing Member
By: ---------------------------------
Its: ---------------------------------
By: ---------------------------------
Its: ---------------------------------
ASSIGNEE:
Jabil Circuit, Inc.,
a Delaware corporation
By: ---------------------------------
Its: ---------------------------------
By: ---------------------------------
Its: ---------------------------------
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EXHIBIT B-1
CONSTRUCTION INSURANCE REQUIREMENTS
Before commencing work, the contractor shall procure and maintain at its sole
cost and expense until completion and final acceptance of the work, at least
the following minimum levels of insurance.
A. Workers' Compensation in statutory amounts and Employers Liability Insurance
in the minimum amounts of $100,000 each accident for bodily injury by
accident and $100,000 each employee for bodily injury by disease with a
$500,000 policy limit, covering each and every worker used in connection
with the contract work.
B. Comprehensive General Liability Insurance on an occurrence basis including,
but not limited to, protection for Premises/Operations Liability, Broad Form
Contractual Liability, Owner's and Contractor's Protective, and
Products/Completed Operations Liability*, in the following minimum limits of
liability.
Bodily Injury, Property Damage, and
Personal Injury Liability $2,000,000/each occurrence
$2,000,000/aggregate
* Products/Completed Operations Liability Insurance is to be provided for a
period of at least one (1) year after completion of work.
Coverage should include protection for Explosion, Collapse and Underground
Damage.
C. Comprehensive Automobile Liability Insurance with the following minimum
limits of liability.
Bodily Injury and Property $1,000,000/limits
Damage Liability $1,000,000/limits
This insurance will apply to all owned, non-owned or hired automobiles to
be used by the Contractor in the completion of the work.
D. Umbrella Liability Insurance in a minimum amount of five million dollars
($5,000,000), providing excess coverage on a following-form basis over the
Employer's Liability limit in Paragraph A and the liability coverages
outlined in Paragraphs B and C.
E. Equipment and Installation coverages in the broadest form available covering
Contractor's tools and equipment and material not accepted by Tenant. Tenant
will provide Builders Risk Insurance on all accepted and installed
materials.
All policies of insurance, duplicates thereof or certificates evidencing
coverage shall be delivered to Landlord prior to commencement of any work and
shall name Landlord, and its partners and lenders as additional insureds as
their interests may appear. All insurance policies shall (1) be issued by a
company or companies licensed to be business in the state of California, (2)
provide that no cancellation, non-renewal or material modification shall be
effective without thirty (30) days prior written notice provided to Landlord,
(3) provide no deductible greater than $15,000 per occurrence, (4) contain a
waiver to subrogation clause in favor of Landlord, and its partners and
lenders, and (5) comply with the requirements of Sections 12.2, 12.3 and 12.4
of the Lease to the extent such requirements are applicable.
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EXHIBIT B-2
BUILDING STANDARDS
OUTLINE SPECIFICATION FOR
NEW OFFICE BUILD-OUT IN R & D BUILDINGS
Office Area
DEMISING PARTITION AND CORRIDOR WALLS:
Note: One hr. rated walls where required based on occupancy group.
A. 6" 20-gage metal studs at 24" O.C. (or as required by code based on roof
height ) framed full height from finish floor to surface above.
B. One (1) LAYER 5/8" drywall Type "X" both sides of wall, fire taped only.
INTERIOR PARTITIONS:
A. 3 5/8" 25 gage metal studs at 24" O.C. to bottom of T-Bar ceiling grid
approximately 9'0' high.
B. One (1) layer 5/8" drywall both sides of wall, smooth ready for paint.
C. 3 5/8" metal studs including all lateral bracing as required by code.
PERIMETER DRYWALL (AT OFFICE AREAS):
A. 3 5/8" metal studs @ 24" O.C. to 12'0" above finished floor. (or as
required by Title-24 for full height envelope then use demising wall spec.)
B. One (1) layer 5/8" Type "X" drywall taped smooth and ready for paint.
COLUMN FURRING:
A. Furring channel all sides of 2 1/2" metal studs per details.
B. One (1) layer 5/8" drywall taped smooth and ready for paint.
C. Columns within walls shall be furred-out.
ACOUSTICAL CEILING:
Note: Gyp. Bd. ceiling at all restrooms Typ.
A. 2' X 4" standard white T-Bar grid system as manufactured by Chicago
Metallic of equal.
B. 2' X 4' X 5/8" white, no-directional acoustical tile to be regular second
look as manufactured by Xxxxxxxxx or equal.
PAINTING:
A. Sheetrock walls within office to receive two (2) coats of interior latex
paint as manufactured by Xxxxx Xxxxx or equal. Some portions of second coat
to be single accent color.
B. Semigloss paint all restrooms and lunch rooms.
WINDOW COVERING:
A. 1" aluminum mini-binds as manufactured by Levelor, Bali or equal, color to
be selected by L.P.C. (brushed aluminum or white).
B. Blinds to be sized to fit window module.
VCT:
A. VCT to be 1/8" X 12" X 12" as manufactured by Xxxxxxxxx-Excelon Series or
equal.
B. Slabs shall be water proofed per manufacturer recommendation, at sheet
vinyl or VCT areas.
LIGHT FIXTURES:
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A. 2" X 4" T-bar lay in 3-tube energy efficient fixture with cool white tubes
with parabolic lens as manufactured by Lithonia or equal. (Approximately 50
F.C.)
LIGHT SWITCHES:
A. Switching as required by Title 24.
B. Switch assembly to be Levinton or equal, color - White
ELECTRICAL OUTLET:
A. 110V duplex outlet in demising or interior partitions only, as manufactured
by Leviton or equal, color to be White.
B. Maximum eight (8) outlets per circuit, spacing to meet code or minimum 2 per
office, conference room, reception and 2 dedicated over cabinet at lunch room
junction boxes above ceiling for large open Area with furniture partitions.
C. Transformers to be a minimum of 20% or over required capacity.
D. Contractors to inspect electric room and to include an rotary metering cost.
E. No aluminum wiring is acceptable.
TELEPHONE/DATA OUTLET:
A. One(l) single outlet box in wall with pullwire from outlet box to area above
T-bar ceiling per office.
B. Cover plate for phone outlets by telephone/data vendors.
FIRE SPRINKLERS:
As required by fire codes.
TOPSET BASE:
A. 4" rubber base as manufactured by Xxxxx or equal, standard colors only.
B. 4" rubber ban at VCT areas.
TOILET AREAS:
Wet walls to receive Duraboard or Wonder Board and ceramic tile up to 48".
Floors to receive ceramic tile with self coved base as required by code.
CARPET:
Note any of the following carpets are acceptable
Designweave: Alumni 28 oz., Windswept Classic 30 oz. or Xxxxxxxx Design Series
III 30 oz, Structure II 28 oz.
WOOD DOORS:
Shall be 3'0 x 9'0" x 1 3/4" (unless otherwise specified) solid core,
prefinished harmony (rotary X. xxxxx).
DOOR FRAMES:
Shall be ACI or equal, 3 3/4" or 4 7/8" throat, brushed, standard aluminum,
snap-on trim.
HARDWARE:
1 1/2 pr. butts F179 Xxxxxxx, Latchset DlOS Xxxxxx Schlage, Lockset D53PD
Xxxxxx Schlage, Dome Type floor stop Xxxxx Xxxxxxx FBl3, Closer 4110LCN (where
required) brushed chrome.
INSULATION:
By Title 24 insulation.
PLUMBING:
A. Shall comply with all local codes and handicapped code requirements. Fixtures
shall be either "American Standard", "Kohler" or "Xxxxxx". All toilet
accessories and grab bars shall be "Bobrick" or equal and approved by owner.
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B. Plumbing bid shall include 5 gallon minimum hot water heater, or insta hot
with mixer valve including all connections.
TOILET PARTITIONS:
Shall be as manufactured by Fiat, global or equal if approved by owner. Color
to be white or xxxx.
HVAC:
HVAC units per specifications.
Five (5) year warranty provided on all HVAC compressor units. All penetrations
including curbs and sleepers to be hot moped to LPC standard.
WAREHOUSE AREAS:
Floor - seal concrete with water base clear acrylic sealer.
Fire Extinguishers - 2A 10 BC surface mount by code x by S.F.
400 W metal halide lighting at warehouse minimum 5-7 foot candles.
Note: All high pile storage requirements are excluded for standard building
T.I.
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EXHIBIT C TO LEASE AGREEMENT
RULES & REGULATIONS
This exhibit, entitled "Rules & Regulations", is and shall constitute EXHIBIT C
to that certain Lease Agreement dated May 12, 1998 (the "Lease"), by and between
Lincoln-RECP Great Oaks OPCO, LLC, a Delaware limited liability company
("Landlord") and Jabil Circuit, Inc., a Delaware corporation ("Tenant") for the
leasing of certain premises located at 00-00 Xxxxx Xxxx Xxxx., Xxx Xxxx,
Xxxxxxxxxx (the "Premises"). The terms, conditions and provisions of this
EXHIBIT C are hereby incorporated into and are made a part of the Lease. Any
capitalized terms used herein and not otherwise defined herein shall have the
meaning ascribed to such terms as set forth in the Lease:
1. No advertisement, picture or sign of any sort shall be displayed on or
outside the Premises or the Building without the prior written consent of
Landlord. Landlord shall have the right to remove any such unapproved
item without notice and at Tenant's expense.
2. Tenant shall not regularly store motor vehicles in designated parking
areas after the conclusion of normal daily business activity.
3. Tenant shall not use any method of heating or air conditioning other than
that supplied by Landlord without the prior written consent of Landlord.
4. All window coverings installed by Tenant and visible from the outside of
the Building require the prior written approval of Landlord.
5. Tenant shall not use, keep or permit to be used or kept any foul or
noxious gas or substance or any flammable or combustible materials on or
around the Premises or the Building.
6. Tenant shall not alter any lock or install any new locks or bolts on any
door at the Premises without the prior consent of Landlord.
7. Tenant agrees not to make any duplicate keys without the prior consent of
Landlord.
8. Tenant shall park motor vehicles in those general parking areas as
designated by Landlord except for loading and unloading. During those
periods of loading and unloading, Tenant shall not unreasonably
interfere with traffic flow.
9. Intentionally omitted.
10. No person shall go on the roof without Landlord's permission.
11. Business machines and mechanical equipment belonging to Tenant which cause
noise or vibration that may be transmitted to the structure of the
Building shall be placed and maintained by Tenant, at Tenant's expense,
on vibration eliminators or other devices sufficient to eliminate noise
or vibration, if such noise or vibration will cause damage to the
structure of the Building, as reasonable determined by Landlord.
12. All goods, including material used to store goods, delivered to the
Premises of Tenant shall be immediately moved into the Premises and shall
not be left in parking or receiving areas overnight.
13. Tractor trailers which must be unhooked or parked with dolly wheels beyond
the concrete loading areas must use steel plates or wood blocks under the
dolly wheels to prevent damage to the asphalt paving surfaces. No parking
or storing of such trailers will be permitted in the auto parking areas
or on streets adjacent thereto.
14. Forklifts which operate on asphalt paving areas shall not have solid
rubber tires and shall only use tires that do not damage the asphalt.
15. Tenant is responsible for the storage and removal of all trash and refuse.
All such trash and refuse shall be contained in suitable receptacles
stored behind screened enclosures at locations approved by Landlord.
16. Tenant shall not store or permit the storage or placement of goods, or
merchandise or pallets or equipment of any sort in or around the Premises
or the Building. No displays or sales of merchandise shall be allowed in
the parking lots.
17. Tenant shall not permit any animals, including, but not limited to, any
household pets, to be brought or kept in or about the Premises or the
Building.
18. Tenant shall not permit any motor vehicles to be washed on any portion of
the Premises, nor shall Tenant permit mechanical work or maintenance of
motor vehicles to be performed on any portion of the Premises.
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31.7 ATTORNEYS' FEES. In the event any dispute between the parties results
in litigation or proceeding, the prevailing party shall be reimbursed by the
party not prevailing for all reasonable and expenses, including, without
limitation, reasonable attorneys' and experts' fees and costs incurred by the
prevailing party in connection with such litigation or other proceeding, and any
appeal thereof. Such costs, expenses and fees shall be included in and made a
part of the judgment recovered by the prevailing party, if any.
31.8 ENTIRE AGREEMENT. This Lease supersedes any prior agreements,
representations, negotiations or correspondence between the parties, and
contains the entire agreement of the parties on matters covered. No other
agreement, statement or promise made by any party, that is not in writing and
signed by all parties to this Lease, shall be binding.
31.9 WARRANTY OF AUTHORITY. On the date that Tenant executes this Lease,
Tenant shall deliver to Landlord an original certificate of status for Tenant
issued by the California Secretary of State or statement of partnership for
Tenant recorded in the county in which the Premises are located, as applicable,
and such other documents as Landlord may reasonably request with regard lo the
lawful existence of Tenant. Each person executing this Lease on behalf of a
party represents and warrants that (1) such person is duly and validly
authorized to do so on behalf of the entity it purports to so bind, and (2) if
such party is a partnership, corporation or trustee, that such partnership,
corporation or trustee has full right and authority to enter into this Lease and
perform all of its obligations hereunder. Tenant hereby warrants that this Lease
is valid and binding upon Tenant and enforceable against Tenant in accordance
with its terms.
31.10 NOTICES. Any and all notices and demands required or permitted to be
given hereunder to Landlord shall be in writing and shall be sent: (a) by United
States mail, certified and postage prepaid; or (b) by personal delivery; or (c)
by overnight courier, addressed to Landlord at 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxx
Xxxxx, Xxxxxx Xxxx, Xxxxxxxxxx 00000-0000. Any and all notices and demands
required or permitted to be given hereunder to Tenant shall be in writing and
shall be sent: (i) by United States mail, certified and postage prepaid; or (ii)
by personal delivery to any employee or agent of Tenant over the age of eighteen
(18) years of age; or (iii) by overnight courier, all of which shall be
addressed to Tenant at the Premises. Notice and/or demand shall be deemed given
upon the earlier of actual receipt or the third day following deposit in the
United States mail. Any notice or requirement of service required by any statute
or law now or hereafter in effect, including, but not limited to, California
Code of Civil Procedure Sections 1161, 1161.1, and 1162 (including any
amendments, supplements or substitutions thereof), is hereby waived by Tenant.
31.11 JOINT AND SEVERAL. If Tenant consists of more than one person or
entity, the obligations of all such persons or entities shall be joint and
several.
31.12 COVENANTS AND CONDITIONS. Each provision to be performed by Tenant
hereunder shall be deemed to be both a covenant and a condition.
31.13 WAIVER OF JURY TRIAL. The parties hereto shall and they hereby do
waive trial by jury in any action, proceeding or counterclaim brought by either
of the parties hereto against the other on any matters whatsoever arising out of
or in any way related to this Lease, the relationship of Landlord and Tenant,
Tenant's use or occupancy of the Premises or the Building, and/or any claim of
injury, loss or damage.
31.14 COUNTERCLAIMS. In the event Landlord commences any proceedings for
nonpayment of Rent, Additional Rent, or any other sums or amounts due hereunder,
Tenant shall not interpose any counterclaim of whatever nature or description in
any such proceedings, provided, however, nothing contained herein shall be
deemed or construed as a waiver of the Tenant's right to assert such claims in
any separate action brought by Tenant or the right to offset the amount of any
final judgment owed by Landlord to Tenant.
31.15 UNDERLINING. The use of underlining within the Lease is for
Landlord's reference purposes only and no other meaning or emphasis is intended
by this use, nor should any be inferred.
31.16 MERGER. The voluntary or other surrender of this Lease by Tenant,
the mutual termination or cancellation hereof by Landlord and Tenant, or a
termination of this Lease by Landlord for a material default by Tenant
hereunder, shall not work a merger, and, at the sole option of Landlord, (i)
shall terminate all or any existing subleases or subtenancies, or (ii) may
operate as an assignment to Landlord of any or all of such subleases or
subtenancies. Landlord's election of either or both of the foregoing options
shall be exercised by delivery by Landlord of written notice thereof to Tenant
and all known subtenants under any sublease.
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(v) All fees payable to the Architect and any engineer if they are required
to redesign any portion of the Tenant Improvements following Tenant's and
Landlord's approval of the Construction Documents;
(vi) Utility connection fees;
(vii) Inspection fees and filing fees payable to local governmental
authorities, if any;
(viii) All costs of all permanently affixed equipment and non-trade
fixtures provided for in the Construction Documents, including the cost of
installation; and,
(ix) A construction management fee ("CM Fee") payable to Landlord in the
amount of seventy five thousand and 00/100 dollars ($75,000.00) Tenant
Improvement Allowance.
The Tenant Improvement Allowance shall be the maximum contribution by Landlord
for the Tenant Improvement Costs, and the disbursement of the Tenant
Improvement Allowance is subject to the terms contained hereinbelow.
Except for payment of the CM Fee, Landlord will make payments to Tenant from the
Tenant Improvement Allowance to reimburse Tenant for Tenant Improvement Costs
paid or incurred by Tenant. Payment of the CM Fee shall be the first payment
from the Tenant Improvement Allowance and shall be made by means of a deduction
or credit against the Tenant Improvement Allowance. All other payments of the
Tenant Improvement Allowance shall be by progress payments not more frequently
than once per month and only after satisfaction of the following conditions
precedent: (a) receipt by Landlord of conditional mechanics' lien releases for
the work completed and to be paid by said progress payment, conditioned only on
the payment of the sums set forth in the mechanics' lien release, executed by
the Contractor and all subcontractors, labor suppliers and materialmen; (b)
receipt by Landlord of unconditional mechanics' lien releases from the
Contractor and all subcontractors, labor suppliers and materialmen for all work
other than that being paid by the current progress payment previously completed
by the Contractor, subcontractors, labor suppliers and materialmen and for which
Tenant has received funds from the Tenant Improvement Allowance to pay for such
work; (c) receipt by Landlord of any and all documentation reasonably required
by Landlord detailing the work that has been completed and the materials and
supplies used as of the date of Tenant's request for the progress payment,
including, without limitation, invoices, bills, or statements for the work
completed and the materials and supplies used; and (d) completion by Landlord or
Landlord's agents of any inspections of the work completed and materials and
supplies used as deemed reasonably necessary by Landlord. Except for the CM Fee
payment (credit), Tenant Improvement Allowance progress payments shall be paid
to Tenant within fourteen (14) days from the satisfaction of the conditions set
forth in the immediately preceding sentence. The preceding notwithstanding, all
Tenant Improvement Costs paid or incurred by Tenant prior to Landlord's approval
of the Construction Documents in connection with the design and planning of the
Tenant Improvements by Architect shall be paid from the Tenant Improvement
Allowance, without any retention, within fourteen (14) days following Landlord's
receipt of invoices, bills or statements from Architect evidencing such costs.
Notwithstanding the foregoing to the contrary, Landlord shall be entitled to
withhold and retain five percent (5%) of the Tenant Improvement Allowance or of
any Tenant Improvement Allowance progress payment until the lien-free expiration
of the time for filing of any mechanics' liens claimed or which might be filed
on account of any work ordered by Tenant or the Contractor or any subcontractor
in connection with the construction and installation of the Tenant Improvements.
B. Landlord shall not be obligated to pay any Tenant Improvement Allowance
progress payment or the Tenant Improvement Allowance retention if on the date
Tenant is entitled to receive the Tenant Improvement Allowance progress payment
or the Tenant Improvement Allowance retention Tenant is in default of this
Lease. Such payments shall resume upon Tenant curing any such default within the
time periods which may be provided for in the Lease.
C. Should the total cost of constructing the Tenant Improvements be less
than the Tenant Improvement Allowance, the Tenant Improvement Allowance shall be
automatically reduced to the amount equal to said actual cost.
6. Termination. If the Lease is terminated prior to the date on which the Tenant
Improvements are completed, for any reason due to the default of Tenant
hereunder, in addition to any other remedies available to Landlord under the
Lease, Tenant shall pay to Landlord as Additional Rent under the Lease, within
five (5) days of receipt of a statement therefor, any and all costs incurred by
Landlord and not reimbursed or otherwise paid by Tenant through the date of
termination in connection with the Tenant improvements to the extent planned,
installed and/or constructed as of such date of termination, including, but not
limited to, any costs related to the removal of all or any portion of the Tenant
Improvements and restoration costs related thereto. Subject to the provisions of
Section 10.2 of the Lease, upon the expiration or earlier termination of the
Lease, Tenant shall not be required to remove the Tenant Improvements it being
the intention of the parties that the Tenant Improvements are to be considered
incorporated into the Building.
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30
7. Lease Provisions; Conflict. The terms and provisions of the Lease, insofar as
they are applicable, in whole or in part, to this EXHIBIT B, are hereby
incorporated herein by reference, and specifically including all of the
provisions of Section 31 of the Lease. In the event of any conflict between the
terms of the Lease and this EXHIBIT B, the terms of this EXHIBIT B shall
prevail. Any amounts payable by Tenant to Landlord hereunder shall be deemed to
be Additional Rent under the Lease and, upon any default in the payment of same,
Landlord shall have all rights and remedies available to it as provided for in
the Lease.
5
31
EXHIBIT C TO PURCHASE AND SALE AGREEMENT
ASSIGNMENT AND ASSUMPTION OF CONTRACTS, WARRANTIES AND PERMITS
This Assignment and Assumption of Contracts, Warranties and Permits (the
"Assignment") is made and entered into as of this ______ day of ________,1998
("Assignment Date"), by and between Lincoln-RECP Great Oaks OPCO, LLC, a
Delaware limited liability company ("Assignor"), and Jabil Circuit, Inc., a
Delaware corporation ("Assignee"), with reference to the following facts.
RECITALS
A. Assignor and Assignee are parties to that certain Purchase and Sale
Agreement, made and entered into as of _________, 1998 (the "Purchase
Agreement"), pursuant to which Assignor agreed to sell to Assignee, and Assignee
agreed to purchase from Assignor that certain improved real property located at
00-00 Xxxxx Xxxx Xxxx., Xxx Xxxx, Xxxxxxxxxx, as legally described in Exhibit A
attached hereto and made a part hereof (the "Land") together with all (i)
improvements and fixtures, including that certain office building (collectively,
the "Improvements") and personal property (the "Personal Property") owned by
Assignor (if any) located on the Land, and (ii) easements, appurtenances, rights
and privileges belonging thereto. The Land, the Improvements, the Personal
Property and the interests described in (ii) above are collectively referred to
herein as the "Property."
B. Assignee has acquired fee title to the Property from Assignor on the
Assignment Date. Assignor now desires to assign and transfer to Assignee all of
Assignor's rights, title and interests in, to and under the Contracts,
Warranties and Permits, as hereinafter defined.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which is hereby acknowledged, the parties hereto agree as follows:
1. Assignment and Assumption. Effective as of the Assignment Date, Assignor
hereby grants, transfers, conveys, bargains, assigns and delegates to Assignee
all of its rights, title, and interests of Assignor in, to and under (i) those
warranties and guaranties that are set forth in Schedule 1 attached hereto and
made a part hereof (collectively, the "Warranties"); (ii) all intangible
property now owned by Assignor in connection with any portion of the Property,
including without limitation, all governmental permits, approvals and licenses
(to the extent assignable) (collectively, the "Permits"); and (iii) those
agreements, utility contracts, service contracts, maintenance contracts,
operating contracts and other rights relating to the ownership, use or operation
of the Property that are set forth in Schedule 2 attached hereto and made a part
hereof (collectively, the "Contracts"). Assignee hereby accepts such assignment
and delegation by Assignor and agrees to assume all the obligations of Assignor
under the Warranties, Permits and Contracts accruing on or after the Assignment
Date.
2. No Warranties. Assignee does hereby covenant with Assignor, and
represents and warrants to Assignor, that Assignor is transferring each of the
Warranties, Permits and Contracts to Assignee (to the extent the terms of any of
the Contracts do not limit or restrict such right) without any warranty of any
kind or nature.
3. Attorneys' Fees. If Assignor or Assignee bring any action against the
other for the enforcement or interpretation of this Assignment, the losing party
shall pay to the prevailing party a reasonable sum for attorneys' fees and
costs.
4. Counterparts. This Assignment may be executed in counterparts, each of
which shall be deemed an original, and all of which shall taken together be
deemed one document.
5. Survival. This Assignment and the provisions hereof shall inure to the
benefit of and be binding upon the parties to this Assignment and their
respective successors, heirs and permitted assigns. There shall be no third
party beneficiaries of, in, to or under this Assignment.
6. Limited Liability. Assignee on behalf of itself and its agents,
employees, representatives, successors and assigns hereby agrees that in no
event or circumstance shall any of the employees, representatives, officers,
directors, agents, property management company, affiliated or related entities
of Assignor or Assignor's property management company, namely Lincoln Property
Company
14
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Management Company, Inc., have any personal liability under this Assignment, or
to any of Assignee's creditors, or to any other party in connection with the
Property.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
as of the Assignment Date.
ASSIGNOR:
LINCOLN-RECP GREAT OAKS OPCO, LLC,
a Delaware limited liability company
By: RECP LINCOLN GREAT OAKS HOLDCO, LLC,
a Delaware limited liability company
Its Managing Member
By: CF REALTY, INC.
a Delaware corporation
Its Managing Member
By:
--------------------------------------------
Its:
--------------------------------------------
By:
--------------------------------------------
Its:
--------------------------------------------
ASSIGNEE:
Jabil Circuit, Inc.,
a Delaware corporation
By:
--------------------------------------------
Its:
--------------------------------------------
By:
--------------------------------------------
Its:
--------------------------------------------
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33
EXHIBIT D TO PURCHASE AND SALE AGREEMENT
GRANT DEED
Recording Requested by and
When Recorded Mail to,
and Mail Tax Statements to:
___________________________________
___________________________________
___________________________________
___________________________________
Attention: __________________________
--------------------------------------------------------------------
Space Above This Line for Recorder's Use
GRANT DEED
The undersigned Grantor declared that Documentary Transfer Tax is not
part of the public records.
For valuable consideration, receipt of which is acknowledged,
Lincoln-RECP Great Oaks OPCO, LLC, a Delaware limited liability company
("Grantor"), hereby grants to Jabil Circuit, Inc., a Delaware corporation
("Grantee"), that certain real property located in the City of San Xxxx, County
of Santa Xxxxx, State of California, as legally described in Exhibit A attached
hereto and made a part hereof, and referred to as Assessor's Parcel Number
________________ (the "Property") together with all of Grantor's right title
and interest in and to all improvements located thereon and all easements,
appurtenances, rights and privileges of Grantor appertaining to the Property.
The Property is conveyed subject to:
(a) The lien of supplemental taxes, if any, assessed pursuant to
the provisions of Chapter 3.5 (commencing with Section 75) of the Revenue and
Taxation Code of the State of California;
(b) The liens for real property taxes for the fiscal year
199_-199_ not yet due and payable;
(c) All liens, encumbrances, easements, leases, covenants,
conditions and restrictions of record;
(d) All matters which would be disclosed by an inspection of the
Property; and
(e) Zoning ordinances and regulations and any other laws,
ordinances, regulations or orders of any governmental agency having or claiming
jurisdiction over the use, occupancy or enjoyment of the Property.
IN WITNESS WHEREOF, Grantor has caused its duly authorized
representative to execute this instrument as of the date hereinafter written.
DATED:__________________, 199_
GRANTOR:
LINCOLN-RECP GREAT OAKS OPCO, LLC,
a Delaware limited liability company
By: RECP LINCOLN GREAT OAKS HOLDCO, LLC,
a Delaware limited liability company
Its Managing Member
By: CF REALTY, INC.,
a Delaware corporation
Its Managing Member
By:
----------------------------------------
Its:
----------------------------------------
By:
----------------------------------------
Its:
----------------------------------------
16
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EXHIBIT E TO PURCHASE AND SALE AGREEMENT
XXXX OF SALE
NO WARRANTY XXXX OF SALE
For good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Lincoln-RECP Great Oaks OPCO, LLC, a Delaware
limited liability company ("Seller"), does hereby GRANT, SELL, CONVEY, TRANSFER
AND DELIVER to Jabil Circuit, Inc., a Delaware corporation ("Buyer"), without
any warranty of any kind, any and all of Seller's rights, title and interests
in and to the personal property described in Schedule 1 attached hereto and
made a part hereof (the "Personal Property"), utilized by Seller in connection
with the operation and management of the realty described in Exhibit A attached
hereto and made a part hereof (the "Property").
From and after the date of this Xxxx of Sale, it is intended by the
parties that Buyer and its successors and assigns shall have the right to use,
have, hold and own the Personal Property forever. This Xxxx of Sale may be
executed in counterparts, each of which shall be deemed an original, and all of
which shall taken together be deemed one document.
Buyer hereby acknowledges, covenants, represents and warrants that
Seller has made absolutely no warranties or representations of any kind or
nature regarding title to the Personal Property or the condition of the
Personal Property. Buyer on behalf of itself and its officers, directors,
employees, partners, agents, representatives, successors and assigns hereby
agrees that in no event or circumstance shall any of the parties comprising
Seller or their partners, trustees, employees, representatives, officers,
successors or assigns have any personal liability under this Xxxx of Sale, or
to any of Buyer's creditors, or to any other party in connection with the
Personal Property or the Property.
IN WITNESS WHEREOF, the parties have executed this Xxxx of Sale as of
this ____ day of _________, 199_.
SELLER:
LINCOLN-RECP GREAT OAKS OPCO, LLC,
a Delaware limited liability company
By: RECP LINCOLN GREAT OAKS HOLDCO, LLC,
a Delaware limited liability company
Its Managing Member
By: CF REALTY, INC.,
a Delaware corporation
Its Managing Member
By:
----------------------------------
Its:
----------------------------------
By:
----------------------------------
Its:
----------------------------------
BUYER:
Jabil Circuit, Inc.,
a Delaware corporation
By:
----------------------------------
Its:
----------------------------------
By:
----------------------------------
Its:
----------------------------------
17
35
EXHIBIT E
HAZARDOUS MATERIALS DISCLOSURE CERTIFICATE
Your cooperation in this matter is appreciated. Initially, the information
provided by you in this Hazardous Materials Disclosure Certificate is necessary
for the Landlord (identified below) to evaluate and finalize a lease agreement
with you as tenant. After a lease agreement is signed by you and the Landlord
(the "Lease Agreement"), on an annual basis in accordance with the provisions
of Section 29 of the signed Lease Agreement, you are to provide an update to the
information initially provided by you in this certificate. The information
contained in the initial Hazardous Materials Disclosure Certificate and each
annual certificate provided by you thereafter will be maintained in
confidentiality by Landlord subject to release and disclosure as required by (i)
any lenders and owners and their respective environmental consultants, (ii) any
prospective purchaser(s) of all or any portion of the property on which the
Premises are located, (iii) Landlord to defend itself or its lenders, partners
or representatives against any claim or demand, and (iv) any laws, rules,
regulations, orders, decrees, or ordinances, including, without limitation,
court orders or subpoenas. Any and all capitalized terms used herein, which are
not otherwise defined herein, shall have the same meaning ascribed to such term
in the signed Lease Agreement. Any questions regarding this certificate should
be directed to, and when completed, the certificate should be delivered to:
Landlord:
---------------------------------------------------------------------
---------------------------------------------------------------------
c/o LPC MS, Inc.
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxx Xxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxx Xxxxxxx
Phone: (000) 000-0000
Name of (Prospective) Tenant:
-------------------------------------------------
Mailing Address:
--------------------------------------------------------------
-------------------------------------------------------------------------------
Contact Person, Title and Telephone Number(s):
--------------------------------
Contact Person for Hazardous Waste Materials Management and Manifests and
Telephone Number(s):
----------------------------------------------------------
-------------------------------------------------------------------------------
Address of (Prospective) Premises:
--------------------------------------------
Length of (Prospective) initial Term:
-----------------------------------------
-------------------------------------------------------------------------------
1. GENERAL INFORMATION:
Describe the initial proposed operations to take place in, on, or about the
Premises, including, without limitation, principal products processed,
manufactured or assembled services and activities to be provided or
otherwise conducted. Existing tenants should describe any proposed changes
to on-going operations.
--------------------------------------------------------------------------
--------------------------------------------------------------------------
2. USE, STORAGE AND DISPOSAL OF HAZARDOUS MATERIALS
2.1 Will any Hazardous Materials be used, generated, stored or disposed of
in, on or about the Premises? Existing tenants should describe any
Hazardous Materials which continue to be used, generated, stored or
disposed of in, on or about the Premises.
Wastes Yes [ ] No [ ]
Chemical Products Yes [ ] No [ ]
Other Yes [ ] No [ ]
If Yes is marked, please explain:
-----------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
2.2 If Yes is marked in Section 2.1, attach a list of any Hazardous
Materials to be used, generated, stored or disposed of in, on or about
the Premises, including the applicable hazard class and an estimate of
the quantities of such Hazardous Materials at any given time;
estimated annual throughput; the proposed location(s) and method of
storage (excluding nominal amounts of ordinary household cleaners and
janitorial supplies which are not regulated by any Environmental
Laws); and the proposed location(s) and method
1
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of disposal for each Hazardous Material, including, the
estimated frequency, and the proposed contractors or
subcontractors. Existing tenants should attach a list setting
forth the information requested above and such list should
include actual data from on-going operations and the
identification of any variations in such information from the
prior year's certificate.
3. STORAGE TANKS AND SUMPS
3.1 Is any above or below ground storage of gasoline, diesel,
petroleum, or other Hazardous Materials in tanks or sumps
proposed in, on or about the Premises? Existing tenants
should describe any such actual or proposed activities.
Yes [ ] No [ ]
If yes, please explain: ______________________________________
______________________________________________________________
______________________________________________________________
4. WASTE MANAGEMENT
4.1 Has your company been issued an EPA Hazardous Waste Generator
I.D. Number? Existing tenants should describe any additional
identification numbers issued since the previous certificate.
Yes [ ] No [ ]
4.2 Has your company filed a biennial or quarterly reports as a
hazardous waste generator? Existing tenants should describe
any new reports filed.
Yes [ ] No [ ]
If yes, attach a copy of the most recent report filed.
5. WASTEWATER TREATMENT AND DISCHARGE
5.1 Will your company discharge wastewater or other wastes to:
_____ storm drain? _____ sewer?
_____ surface water? _____ no wastewater or other wastes
discharged.
Existing tenants should indicate any actual discharges. If
so, describe the nature of any proposed or actual
discharge(s).
______________________________________________________________
______________________________________________________________
5.2 Will any such wastewater or waste be treated before discharge?
Yes [ ] No [ ]
If yes, describe the type of treatment proposed to be
conducted. Existing tenants should describe the actual
treatment conducted.
_____________________________________________________________
_____________________________________________________________
6. AIR DISCHARGES
6.1 Do you plan for any air filtration systems or stacks to be
used in your company's operations in, on or about the
Premises that will discharge into the air; and will such air
emissions be monitored? Existing tenants should indicate
whether or not there are any such air filtration systems or
stacks in use in, on or about the Premises which discharge
into the air and whether such air emissions are being
monitored.
Yes [ ] No [ ]
If yes, please describe: _____________________________________
______________________________________________________________
______________________________________________________________
6.2 Do you propose to operate any of the following types of
equipment, or any other equipment requiring an air emissions
permit? Existing tenants should specify any such equipment
being operated in, on or about the Premises.
2
37
____ Spray booth(s) ____ Incinerator(s)
____ Dip tank(s) ____ Other (Please describe)
____ Drying oven(s) ____ No Equipment Requiring Air Permits
If yes, please describe:______________________________________
______________________________________________________________
______________________________________________________________
7. HAZARDOUS MATERIALS DISCLOSURES
7.1 Has your company prepared or will it be required to prepare a
Hazardous Materials management plan ("Management Plan")
pursuant to Fire Department or other governmental or
regulatory agencies' requirements? Existing tenants should
indicate whether or not a Management Plan is required and has
been prepared.
Yes [ ] No [ ]
If yes, attach a copy of the Management Plan. Existing
tenants should attach a copy of any required updates to the
Management Plan.
7.2 Are any of the Hazardous Materials, and in particular
chemicals, proposed to be used in your operations in, on or
about the Premises regulated under Proposition 65? Existing
tenants should indicate whether or not there are any new
Hazardous Materials being so used which are regulated under
Proposition 65.
Yes [ ] No [ ]
If yes, please explain: ______________________________________
______________________________________________________________
______________________________________________________________
8. ENFORCEMENT ACTIONS AND COMPLAINTS
8.1 With respect to Hazardous Materials or Environmental Laws,
has your company ever been subject to any agency enforcement
actions, administrative orders, or consent decrees or has
your company received requests for information, notice or
demand letters, or any other inquiries regarding its
operations? Existing tenants should indicate whether or not
any such actions, orders or decrees have been, or are in the
process of being, undertaken or if any such requests have
been received.
Yes [ ] No [ ]
If yes, describe the actions, orders or decrees and any
continuing compliance obligations imposed as a result of
these actions, orders or decrees and also describe any
requests, notices or demands, and attach a copy of all such
documents. Existing tenants should describe and attach a copy
of any new actions, orders, decrees, requests, notices or
demands not already delivered to Landlord pursuant to the
provisions of Section 29 of the signed Lease Agreement.
______________________________________________________________
______________________________________________________________
______________________________________________________________
8.2 Have there ever been, or are there now pending, any lawsuits
against your company regarding any environmental or health
and safety concerns?
Yes [ ] No [ ]
If yes, describe any such lawsuits and attach copies of the
complaint(s), cross-complaint(s), pleadings and all other
documents related thereto as requested by Landlord. Existing
tenants should describe and attach a copy of any new
complaint(s), cross-complaint(s), pleadings and other related
documents not already delivered to Landlord pursuant to the
provisions of Section 29 of the signed Lease Agreement.
______________________________________________________________
______________________________________________________________
______________________________________________________________
8.3 Have there been any problems or complaints from adjacent
tenants, owners or other neighbors at your company's current
facility with regard to environmental or health and safety
concerns? Existing tenants should indicate whether or not
there have been any such problems or complaints from adjacent
tenants, owners or other neighbors at, about or near the
Premises.
3
38
Yes [] No []
If yes, please describe. Existing tenants should describe any such
problems or complaints not already disclosed to Landlord under the
provisions of the signed Lease Agreement.
9. PERMITS AND LICENSES
9.1 Attach copies of all Hazardous Materials permits and licenses
including a Transporter Permit number issued to your company with
respect to its proposed operations in, on or about the Premises,
including, without limitation, any wastewater discharge permits, air
emission permits, and use permits or approvals. Existing tenants
should attach copies of any new permits and licenses as well as any
renewals of permits or licenses previously issued.
The undersigned hereby acknowledges and agrees that (A) this Hazardous Materials
Disclosure Certificate is being delivered in connection with, and as required
by, Landlord in connection with the evaluation and finalization of a Lease
Agreement and will be attached thereto as an exhibit; (B) that this Hazardous
Materials Disclosure Certificate is being delivered in accordance with, and as
required by, the provisions of Section 29 of the Lease Agreement; and (C) that
Tenant shall have and retain full and complete responsibility and liability with
respect to any of the Hazardous Materials disclosed in the HazMat Certificate
notwithstanding Landlord's/Tenant's receipt and/or approval of such certificate.
Tenant further agrees that none of the following described acts or events shall
be construed or otherwise interpreted as either (a) excusing, diminishing or
otherwise limiting Tenant from the requirement to fully and faithfully perform
its obligations under the Lease with respect to Hazardous Materials, including,
without limitation, Tenant's indemnification of the Indemnitees and compliance
with all Environmental Laws, or (b) imposing upon Landlord, directly or
indirectly, any duty or liability with respect to any such Hazardous Materials,
including, without limitation, any duty on Landlord to investigate or otherwise
verify the accuracy of the representations and statements made therein or to
ensure that Tenant is in compliance with all Environmental Laws; (i) the
delivery of such certificate to Landlord and/or Landlord's acceptance of such
certificate, (ii) Landlord's review and approval of such certificate, (iii)
Landlord's failure to obtain such certificate from Tenant at any time, or (iv)
Landlord's actual or constructive knowledge of the types and quantities of
Hazardous Materials being used, stored, generated, disposed of or transported on
or about the Premises by Tenant or Tenant's Representatives. Notwithstanding the
foregoing or anything to the contrary contained herein, the undersigned
acknowledges and agrees that Landlord and its partners, lenders and
representatives may, and will, rely upon the statements, representations,
warranties, and certifications made herein and the truthfulness thereof in
entering into the Lease Agreement and the continuance thereof throughout the
term, and any renewals thereof, of the Lease Agreement.
I (print name)_________________, acting with full authority to bind the
(proposed) Tenant and on behalf of the (proposed) Tenant, certify, represent
and warrant that the information contained in this certificate is true and
correct.
(PROSPECTIVE) TENANT:
By: _________________________
Title: _________________________
Date: _________________________
4
39
EXHIBIT F
FIRST AMENDMENT TO LEASE AGREEMENT
CHANGE OF COMMENCEMENT DATE
This first Amendment to Lease Agreement (the "Amendment") is made and entered
into to be effective as of ____________, by and between _____________________
("LANDLORD"), and _____________ ("TENANT"), with reference to the following
facts:
RECITALS
A. Landlord and Tenant have entered into that certain Lease Agreement dated
______ (the "Lease"), for the leasing of certain premises containing
approximately __________ rentable square feet of space located at __________,
California (the "Premises") as such Premises are more fully described in the
Lease.
B. Landlord and Tenant wish to amend the commencement Date of the Lease.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Landlord and Tenant hereby agree as follows:
1. Recitals: Landlord and Tenant agree that the above recitals are true
and correct.
2. The Commencement Date of the Lease shall be _________.
3. The last day of the Term of the Lease (the "Expiration Date") shall be
_______.
4. The dates on which the Base Rent will be adjusted are:
for the period ______ to _____ the monthly Base Rent shall be $_____;
for the period ______ to _____ the monthly Base Rent shall be $_____;and
for the period ______ to _____ the monthly Base Rent shall be $_____.
5. Effect of Amendment: Except as modified herein, the terms and
conditions of the Lease shall remain unmodified and continue in full
force and effect. In the event of any conflict between the terms and
conditions of the Lease and this Amendment, the terms and conditions
of this Amendment shall prevail.
6. Definitions: Unless otherwise defined in this Amendment, all terms not
defined in this amendment shall have the meaning set forth in the
Lease.
7. Authority: Subject to the provisions of the Lease, this Amendment shall
be binding upon and inure to the benefit of the parties hereto, their
respective heirs, legal representatives, successors and assigns. Each
party hereto and the persons signing below warrant that the person
singing below on such party's behalf is authorized to do so and to
bind such party to the terms of this Amendment.
8. The terms and provisions of the Lease are hereby incorporated in this
Amendment.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
and year first above written.
[PROPERTY MANAGER: PLEASE PROVIDE TENANT INFORMATION AND WORD PROCESSING WILL
COMPLETE THE SIGNATURE BLOCK]
40
ADDENDUM 1
RIGHT OF FIRST OFFER TO PURCHASE
This Addendum 1 is incorporated as a part of that certain Lease Agreement dated
May 12, 1998 by and between Jabil Circuit, Inc., a Delaware corporation
(Tenant), and Lincoln-RECP Great Oaks OPCO, LLC, a Delaware limited liability
company ("Landlord"), for the leasing of the Premises. Any capitalized terms
used herein and not otherwise defined herein shall have the meaning ascribed to
such terms as set forth in the Lease.
As set forth in this Addendum I, Tenant shall have two (2) rights of first offer
(individually, the "First Right of First Offer" and "Second Right of First
Offer," and collectively, "Right of First Offer") to purchase the Premises upon
the terms and conditions contained in this Addendum 1. Tenant's Right of First
Offer, as granted herein, shall be void if (i) Tenant has been in default beyond
any applicable cure period per the Terms of the Lease in the performance of any
of Tenant's obligations under the Lease, or (ii) on the date of Landlord's First
Availability Notice (defined below) or Landlord's Second Availability Notice
(defined below), as applicable, Tenant is then in default in the performance of
any of its obligations under the Lease, or (iii) the Premises or a portion
thereof have been assigned or are being subleased at the time of the delivery to
Tenant of Landlord's First Availability Notice or Landlord's Second Availability
Notice, as applicable.
Provided the above conditions are satisfied, in the event Landlord shall decide
to sell the Premises during the Term of this Lease, Landlord shall give written
notice to Tenant that Landlord intends to sell the Premises and that Tenant has
the right to exercise Tenant's First Right of First Offer to purchase the
Premises; provided, however, Landlord covenants with Tenant that Landlord shall
give to Tenant, once during the initial forty-eight (48) months of the Term,
such written notice to Tenant ("Landlord's First Availability Notice") so that
Tenant may exercise Tenant's First Right of First Offer. Tenant shall have a
period of ten (10) days following receipt of Landlord's First Availability
Notice to notify Landlord in writing of Tenant's election to purchase the
Premises ("Tenant's Acceptances"), which purchase of the Premises pursuant to
Tenant's First Right of First Offer shall be upon the exact terms and
conditions contained in the Purchase and Sale Agreement attached to this Lease
as Addendum 2 ("Purchase Agreement"). Within three (3) business days after
Tenant timely and properly delivers Tenant's Acceptance to Landlord, Landlord
and Tenant shall execute and deliver to the other and to Title Company (as
defined in the Purchase Agreement) two (2) originals of the Purchase Agreement
and the parties shall proceed under the terns of the Purchase Agreement. If
Tenant declines Landlord's First Availability Notice, or if Tenant fails to
deliver to Landlord Tenant's Acceptance within the time specified herein or if
Tenant requests modifications, changes or amendments to the Purchase Agreement,
it shall be deemed that (i) Tenant has elected not to purchase the Premises; and
(ii) Landlord may thereafter enter into negotiations with any person or entity
and/or negotiate with an consummate an agreement to sell the Premises to any
person or entity on any terms and conditions Landlord, in its sole and absolute
discretion, shall deem desirable. Time is of the essence herein.
In the event Tenant shall not purchase the Premises pursuant to Tenant's First
Right of First Offer and in the event Landlord shall thereafter not consummate
the sale of the Premises to such other entity or person described in subsection
(i) of the immediately preceding paragraph, Tenant shall have a Second Right of
First Offer during the balance of the initial Term in the event Landlord shall
decide to sell the Premises during such time period. Such Second Right of First
Offer shall be upon and subject to the same terms and conditions set forth above
with respect to Tenant's First Right of First Offer except (i) with respect to
this Second Right of First Offer, the purchase price for the Premises shall no
longer be the Purchase Price (as defined in the Purchase Agreement) set forth in
the Purchase Agreement and Landlord shall no longer be bound by such Purchase
Price but rather, the purchase price for the Premises shall be determined solely
by Landlord in Landlord's business judgment; (ii) with respect to this Second
Right of First Offer, Landlord shall only give Tenant written notice that
Landlord intends to sell the Premises (Landlord's Second Availability Notice")
in the event Landlord decides to sell the Premises during the balance of the
initial Term and, in the event Landlord shall not desire or decide to sell the
Premises during the balance of the initial Term, Landlord shall be under no
obligation whatsoever to deliver to Tenant Landlord's Second Availability
Notice; and (ii) that, upon Tenant's failure to deliver Tenant's Acceptance to
landlord within the ten (10) day period following delivery by Landlord (if at
all) to Tenant of Landlord's Second Availability Notice or upon Tenant's
declining this Second Right of First Offer or upon Tenant requesting
modifications, change or amendments to the Purchase Agreement, this Second Right
of First Offer (and all rights of Tenant under this Addendum 1) shall terminate
and be of no further force or effect and it shall be deemed that (a) Tenant has
elected not to purchase the Premises; and (b) Landlord may thereafter enter into
negotiations with any person or entity and/or negotiate with and consummate an
agreement to sell the Premises to any person or entity on any terms and
conditions Landlord, in its sole and absolute discretion, shall deem desirable.
Time is of the essence herein.
This Right of First Offer is personal to Tenant and may not be assigned,
voluntarily or involuntarily, separate from or as a part of the Lease.
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Until the consummation of the purchase and sale of the Premises to Tenant, this
Lease shall remain in full force and effect.
Upon consummation of the purchase and sale of the Premises to Tenant, this Lease
shall terminate and be of no further force or effect. In the event the Premises
are sold to any person or entity other than Tenant during the term this Lease or
in the event Landlord and Tenant fail to consummate the purchase and sale of
the Premises pursuant to the terms and conditions of the Purchase Agreement,
Tenant shall remain in possession of the Premises subject to the terms,
covenants, conditions and provisions of this Lease.
Landlord and Tenant represent and warrant to the other that no person or entity
shall be entitled to a brokerage or real estate commission of any kind in
connection with the subject matter of this Addendum 1.
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ADDENDUM 2
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "Agreement") is made and entered into as
of this day of _________, _______ (the "Agreement Date"), by and between
Lincoln-RECP Great Oaks OPCO, LLC, a Delaware limited liability company
("Seller"), and Jabil Circuit, Inc., a Delaware corporation ("Buyer"), with
reference to the following facts.
RECITALS
A. Seller is the owner of that certain improved real property located at
00-00 Xxxxx Xxxx Xxxxxxxxx, Xxx Xxxx, Xxxxxxxxxx, as legally described in
Exhibit A attached hereto and made a part hereof (the "Land") together with all
(i) improvements and fixtures, including that certain office building
(collectively, the "Improvements") and personal property (the "Personal
Property") owned by Seller (if any) located on the Land, and (ii) easements,
appurtenances, rights and privileges belonging thereto. The Land, the
Improvements, the Personal Property and the interests described in (ii) above
are collectively referred to herein as the "Property".
B. Seller desires to sell to Buyer and Buyer desires to purchase from
Seller the Property, in accordance with the terms and provisions hereinafter
contained in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Sale of the Property. Seller shall sell to Buyer and Buyer shall
purchase from Seller the Property at the Closing (hereinafter defined in Section
6 below), on the terms and conditions contained herein.
2. Deposits.
2.1 Initial Deposit. Within one (1) business day after the Agreement
Date, Buyer shall place on deposit into the escrow account (the "Escrow
Account") to be opened with Fidelity National Title Company located at 00
Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, Xxxxxxxxxx (Attention: Xxxx Xxxxx)
("Title Company" or "Escrow Holders") the amount of Two Hundred Fifty Thousand
Dollars ($250,000.00) as an initial deposit (the "Initial Deposit"). The Title
Company shall cause the Initial Deposit to be placed into an interest bearing
bank account acceptable to Buyer and Seller. Any interest earned on the Initial
Deposit shall be included as part of the Initial Deposit. The Initial Deposit
and interest earned thereon, shall be fully refundable to Buyer until the
earlier of (a) the removal or waiver by Buyer of all Pre-Closing Conditions
(hereafter defined), or (b) thirty (30) days after the Agreement Date (the
"Conditions Period"). If Buyer fails to deliver the Initial Deposit into the
Escrow Account strictly as and when contemplated herein, Seller shall have the
right to terminate this Agreement by delivering written notice thereof to Buyer
at any time and thereafter neither party shall have any further rights or
obligations hereunder except for the indemnities contained in Sections 4.4 ant
15 below and Buyer's obligations under Section 4.3 below to deliver to Seller
the Due Diligence Materials (defined below).
2.2 Additional Deposit. Provided that Buyer has not earlier terminated
this Agreement, within one (1) business day after the expiration of the
Conditions Period Buyer shall place on deposit into the Escrow Account, the
amount of Two Hundred Fifty Thousand Dollars ($250,000.00) as an additional
deposit (the "Additional Deposit"). The Escrow Holder shall cause the Additional
Deposit to be placed into an interest bearing bank account acceptable to Seller.
Any interest earned on the Additional Deposit shall be included as part of the
Additional Deposit. The Additional Deposit shall be retained in the Escrow
Account until the Closing (defined below). Subject to the satisfaction of all of
the Closing Conditions (defined below) in accordance with the provisions of this
Agreement, the Additional Deposit shall be non-refundable to Buyer. If Buyer
fails to deliver the Additional Deposit into the Escrow Account strictly as and
when contemplated herein, Seller shall have the right to terminate this
Agreement by delivering written notice thereof to Buyer at any time and
thereafter neither party shall have any further rights or obligations hereunder
except for the indemnities contained in Sections 4.4 and 15 below and Buyer's
obligations under Section 4.3 below to deliver to Seller the Due Diligence
Materials (defined below). The Initial Deposit and Additional Deposit are
collectively referred to herein as "Deposits".
3. Purchase Price. The purchase price for the Property shall be Twenty Five
Million One Hundred Forty Three Thousand Seven Hundred Ten Dollars
($25,143,710.00) (the "Purchase Price"), adjusted for prorations in accordance
with the provisions of Section 13 below. The Deposits, to the extent actually
made by Buyer, shall be applied to the Purchase Price at the Closing. At the
Closing, the balance of the Purchase Price remaining after deduction for the
Deposits actually made by Buyer hereunder, shall be paid by Buyer to Seller in
cash, in immediately available funds via wire transfer, adjusted for
prorations in accordance with the provisions of Section 13 below.
4. Conditions to Buyer's Obligations.
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4.1 Pre-Closing Conditions. Buyer's obligations under this Agreement shall
be subject to the satisfaction of or waiver by Buyer in its sole discretion of
the following described matters (collectively, the "Pre-Closing Conditions") on
or before the earlier of (i) the time periods specified in each subsection
below, or (ii)the expiration of the Conditions Period" (provided, Seller shall
not be obligated to provide to Buyer and Buyer shall not have access to any of
the following which are legally privileged or confidential in nature):
4.1.1 Title. Within five (5) days following the Agreement Date, Seller
shall cause to be issued and delivered to Buyer a preliminary title report for
the Property, together with all documents evidencing exceptions to title
referred to therein issued by the Title Company (the "Title Report"). Buyer
shall have until the expiration of the Conditions Period to either approve of
the exceptions (if any) contained therein, or to notify Seller in writing,
specifying any exceptions to which Buyer objects. Seller shall have until two
(2) business days prior to the expiration of the Conditions Period (a) to
remove, or agree to remove prior to the Closing, those exceptions to which Buyer
has objected, and to inform Buyer of the same, or (b) to advise Buyer, in
writing, that Seller does not agree to remove some or all of those exceptions to
which Buyer has objected; the foregoing election by Seller being at Seller's
sole option and discretion. Failure by Seller or Sellers refusal to remove those
specified exceptions which Seller has expressly agreed to remove within the
specified period shall be deemed to be a failure of this condition, in which
event the Agreement shall terminate, and the Initial Deposit and the Additional
Deposit (to the extent then made) shall be returned to Buyer, and the partial
shall have no further obligations hereunder except for the indemnities contained
in Sections 4.4 and 15 below and Buyer's obligations under Section 4.3 below to
deliver to Seller the Due Diligence Materials (defined below), unless Buyer
withdraws its objections in writing, prior to the expiration of the Conditions
Period.
4.1.2 Physical Inspections. Within five (5) days following the
Agreement Date, but only to the extent same is in Seller's possession or
reasonably accessible to Seller shall deliver to Buyer, without any warranty or
representation as to the accuracy thereof or to the ability of Buyer to rely
thereon, a copy of the most recent environmental site assessment report with
respect to an evaluation of Hazardous Materials (hereafter defined) in, on or
under the Property. After Buyer has provided to Seller a certificate of
insurance evidencing Buyer's procurement of a commercial general liability
insurance policy with a combined single limit for property damage and bodily
injury in the amount of Two Million Dollars ($2,000,000.00) under which Seller
is named as an additional insured. Buyer and its authorized agents shall have a
license to make and perform such environmental evaluations, and other
inspections and investigations of the physical condition of the Property. The
aforementioned insurance coverage may be obtained under a blanket policy carried
by Buyer.
Notwithstanding the foregoing, Buyer shall not be permitted to undertake any
intrusive or destructive testing of the Property, including without limitation a
"Phase II" environmental assessment, without in each instance first obtaining
Seller's written consent thereto, which consent Seller may give or withhold in
Seller's sole and absolute discretion. Prior to conducting any inspections or
tests (on each occasion), Buyer shall deliver to Seller prior notice thereof and
shall afford Seller a reasonable opportunity to have a representative present to
accompany Buyer while Buyer performs its evaluations, inspections and other
investigations of the physical condition of the Property. Buyer shall have until
the expiration of the Conditions Period to notify Seller in writing, of its
approval or disapproval of such evaluations, inspections and investigations.
4.1.3 Plans, Permits, Reports and Related Information. Within five (5)
days following the Agreement Date, but only to the extent same is in Seller's
possession or reasonably accessible to Seller. Seller shall deliver to Buyer a
true and complete copy of (a) property tax bills for the three (3) most recent
tax fiscal year; (b) without any warranty or representation as to the accuracy
thereof or to the ability of Buyer to rely thereon soils reports, ADA reports,
as-built plans and specifications, and structural or engineering studies or
reports; and (c) without any warranty or representation as to the accuracy
thereof or to the ability of Buyer to rely thereon, a copy of any existing
survey of the Property. Buyer shall have until the expiration of the Conditions
Period to notify Seller in writing, of its approval or disapproval of such
matters.
4.1.4 Leases and Income and Expense Statements. Within five (5) days
following the Agreement Date, but only to the extent same is in Seller's
possession or reasonably accessible to Seller shall deliver to Buyer or
otherwise make available to Buyer at Seller's offices during normal business
hours for inspection by Buyer the following described document and information:
(a) a copy of all existing and pending leases and if subleases together with any
amendments or modifications thereof affecting any portion of the Property
(collectively, the "Leases"). Seller shall assign its rights, title and interest
in and to the Leases and all security deposits to Buyer at the Closing pursuant
to the Assignment and Assumption of Leases in substantially the form attached
hereto as Exhibit B, and made a part hereof.
4.1.5 Contracts. Within five (5) days following the Agreement Date,
but only to the extent same is in Seller's possession or reasonably accessible
to Seller shall deliver to Buyer a true and complete copy of all contracts,
service agreements, commission agreements, maintenance agreements, reciprocal
easement agreements, and other agreements related to the Property, except for
any management agreement between Seller and the management company presently
managing the Property (collectively, the "Contracts"). Buyer shall have until
the expiration of the Conditions Period to either approve of any such Contracts,
or to notify Seller in writing, specifying any Contracts which Buyer desires he
terminated on or before the Closing the ("Disapproved Contracts"). Seller shall
have until one (1) business day prior to the expiration of the Conditions Period
to agree, in Seller's sole and absolute discretion, to terminate such
Disapproved Contracts prior to the Closing; provided, however, in no event shall
Seller be required to terminate any Contracts which by their terms are not
terminable prior to the Closing or otherwise not terminable without payment by
Seller of a penalty or premium. Those contracts not expressly disapproved by
Buyer and those contracts which by their terms are not terminable prior to the
Closing or are otherwise not terminable without payment by Seller of a penalty
or premium shall be deemed approved by Buyer (collectively, the "Approved
Contracts") and Seller shall assign its rights under the Approved Contracts to
Buyer at the Closing pursuant to the Assignment
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and Assumption of Contracts, Warranties and Permits in substantially the form
attached hereto as Exhibit C, and made a part hereof. Failure by Seller to agree
to so terminate the Disapproved Contracts within the specified period shall be
deemed to be a failure of this condition, in which event the Agreement shall
terminate, and the Initial Deposit and the Additional Deposit (to the extent
then made) shall be returned to Buyer, and the parties shall have no further
obligations hereunder except for the indemnities contained in Sections 4.4 and
15 below and Buyer's obligations under Section 4.3 below to deliver to Seller
the Due Diligence Materials (defined below), unless Buyer withdraws its
disapproval or rejection in writing, prior to the expiration of the Conditions
Period.
4.2 Closing Conditions. Following the expiration of the Conditions Period,
Buyer's obligation to consummate the purchase of the Property shall be subject
to the satisfaction of the following condition (the "Closing Conditions"):
4.2.1 Seller's Delivery of Closing Documents. Seller shall have
delivered to Escrow Holder or Buyer, as appropriate, all of the documents
referred to in Section 6.4.1 below.
4.2.2 Delivery of CLTA Title Policy. At the Closing the Title Company
shall be irrevocably committed to issue to Buyer the CLTA Title Policy
(hereafter defined).
4.3 Failure of Conditions. In the event that any or all of the
Pre-Closing Conditions are not satisfied or waived within the applicable time
periods specified in Section 4.1 above, then Buyer may terminate this Agreement
by delivering written notice thereof to Seller on or before the expiration of
said time periods. If Buyer so elects to terminate this Agreement, the Initial
Deposit and the Additional Deposit (to the extent then made) shall be returned
to Buyer and neither Buyer nor Seller shall have any further liability or
obligation to each other, except for the indemnities contained in Sections 4.4
and 15; provided, notwithstanding anything to the contrary contained herein if
Buyer terminates this Agreement for failure of a Pre-Closing Condition or for
any other reason other than a default on the part of Seller, Buyer shall deliver
to Seller a copy of all materials, tests, audits, surveys, reports, studies and
the results of any and all investigations and inspections conducted by Buyer
(excluding any proprietary materials but including any materials given to Buyer
by or on behalf of Seller) (collectively, the "Due Diligence Materials") as a
condition precedent to Buyer's right to obtain the return of the Initial Deposit
and the Additional Deposit (to the extent then made). If Buyer does not elect to
terminate this Agreement due to a failure of any of the Pre-Closing Conditions
(i) the Initial Deposit shall become non-refundable to Buyer, and (ii) within
one (1) business day after the expiration of the Conditions Period, Buyer shall
deposit into the Escrow Account, the Additional Deposit which shall also become
non-refundable to Buyer subject to the satisfaction or waiver of the Closing
Conditions. If the Pre-Closing Conditions are satisfied or waived by Buyer but
any Closing Condition is not satisfied or waived by Buyer on or before the date
established for the Closing, then Buyer may terminate this Agreement by
delivering written notice thereof to Seller on or before such date and the
Deposits shall be returned to Buyer concurrently with Buyer's delivery to Seller
of the Due Diligence Materials, and neither Buyer nor Seller shall have any
further liability or obligation to each other, except for the indemnities
contained in Sections 4.4 and 15. Failure by Buyer to notify Seller within the
specified time periods set forth herein, shall be deemed an approval by Buyer of
each such matter, in which event all such conditions and contingencies shall be
deemed to be satisfied and approved. In the event Buyer terminates this
Agreement pursuant to the provisions hereof, Buyer shall be solely responsible
for the payment of any and all escrow cancellation charges or fees payable to
the Title Company.
4.4 Investigations Indemnity. Buyer shall indemnify, defend
(with counsel reasonably satisfactory to Seller), protect, and hold Seller and
each of the parties comprising Seller and each of their partners, members,
officers, trustees, employees, representatives, agents, successors and assigns
harmless from and against any and all claims, liabilities, losses, costs,
damages, and expenses (including, without limitation, attorneys' and experts'
fees and costs) arising in any manner whatsoever from any studies, evaluations,
inspections, investigations or tests made by Buyer or Buyer's representatives
relating to or in connection with the Property (exclusive of the financial
effects of the discovery of the presence of any Hazardous Materials (defined
below)), or entries by Buyer's representatives onto the Property.
Notwithstanding any provision to the contrary in this Agreement, the indemnity
obligations of Buyer under this Agreement shall survive any termination of this
Agreement or the delivery of the Grant Deed and the transfer of title. In
addition to the foregoing indemnity, if there is any damage to the Property
caused by Buyer's agents' entry in or on the Property, Buyer shall immediately
restore the Property substantially to the same condition existing prior to
Buyer's entry onto the Property. "Hazardous Materials" shall mean and include
(a) any hazardous or toxic wastes, materials or substances, and other pollutants
or contaminants, which are or become regulated by any Environmental Laws; (b)
petroleum, petroleum by products, gasoline, diesel fuel, crude oil or any
fraction thereof; (c) asbestos and asbestos containing material, in any form,
whether friable or non-friable; (d) polychlorinated biphenyls; (e) radioactive
materials; (f) lead and lead-containing materials; (g) any other material, waste
or substance displaying toxic, reactive, ignitable or corrosive characteristics,
as all such terms are used in their broadest sense, and are defined or become
defined by any Environmental Law (defined below); or (h) any materials which
cause or threatens to cause a nuisance upon or waste to any portion of the
Property or any surrounding property; or poses or threatens to pose a hazard to
the health and safety of persons on the Property or any surrounding property.
"Environmental Laws" means any and all local, state and federal environmental,
health and/or safety related laws, rules, regulations, orders and ordinances
applicable to the Property.
5. LIQUIDATED DAMAGES.
5.1 BUYER'S DEFAULT. IF BUYER FAILS TO COMPLETE THE PURCHASE OF THE
PROPERTY AS PROVIDED IN THIS AGREEMENT BY REASON OF ANY DEFAULT OF BUYER, SELLER
SHALL BE RELEASED
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FROM ITS OBLIGATION TO SELL THE PROPERTY TO BUYER, AND MAY PROCEED AGAINST BUYER
UPON ANY CLAIM OR REMEDY WHICH IT MAY HAVE AT LAW OR IN EQUITY; PROVIDED,
HOWEVER, THAT BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE
IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE
SUSTAINED BY SELLER AS A RESULT OF SUCH DEFAULT BY BUYER, AND AGREE THAT THE
AGGREGATE AMOUNT OF THE DEPOSITS (INCLUDING ALL INTEREST), THE PAYMENT BY BUYER
OF ALL ESCROW CANCELLATION ON CHARGES AND FEES, AND THE DELIVERY TO SELLER BY
BUYER OF THE DUE DILIGENCE MATERIALS IS A REASONABLE APPROXIMATION THEREOF.
ACCORDINGLY, IN THE EVENT THAT BUYER BREACHES THIS AGREEMENT BY DEFAULTING IN
THE COMPLETION OF THE PURCHASE, THE AGGREGATE AMOUNT OF THE DEPOSITS (INCLUDING
ALL INTEREST), THE PAYMENT BY BUYER OF ALL ESCROW CANCELLATION CHARGES AND FEES,
AND THE DELIVERY TO SELLER BY BUYER OF THE DUE DILIGENCE MATERIALS SHALL
CONSTITUTE AND BE DEEMED TO BE THE AGREED AND LIQUIDATED DAMAGES OF SELLER, AND
SHALL BE PAID BY BUYER TO SELLER AND THE TITLE COMPANY AS SELLER'S SOLE REMEDY.
SELLER AGREES TO WAIVE ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT
OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED,
HOWEVER, THE FOREGOING SHALL NOT LIMIT (I) BUYER'S OBLIGATIONS TO PAY TO SELLER
ALL ATTORNEYS' FEES AND COSTS OF SELLER TO ENFORCE THE PROVISIONS OF THIS
SECTION 5.1 AND/OR BUYER'S INDEMNITY OBLIGATIONS UNDER SECTIONS 4.4 AND 15
HEREOF, (II) BUYER'S INDEMNITY OBLIGATIONS UNDER SECTIONS 4.4 AND 15 HEREOF, OR
(III) THE ABILITY AND RIGHT OF SELLER TO ENFORCE SUCH INDEMNITIES.
SELLER'S INITIALS____ BUYER'S INITIALS____
5.2 SELLER'S DEFAULT. IF SELLER FAILS TO COMPLETE THE SALE OF THE
PROPERTY AS PROVIDED IN THIS AGREEMENT BY REASON OF ANY MATERIAL DEFAULT OF
SELLER, BUYER SHALL BE RELEASED FROM ITS OBLIGATION TO PURCHASE THE PROPERTY
FROM SELLER, AND BUYER MAY EITHER (I) PROCEED AGAINST SELLER BY BRINGING AN
ACTION FOR SPECIFIC PERFORMANCE UNDER THIS AGREEMENT, OR (II) TERMINATE THIS
AGREEMENT IN WHICH EVENT THE DEPOSITS (TO THE EXTENT MADE BUT INCLUDING ALL
INTEREST) SHALL BE RETURNED TO BUYER WITHOUT THE NECESSITY OF DELIVERING TO
SELLER THE DUE DILIGENCE MATERIALS AND SELLER SHALL PAY ALL ESCROW CANCELLATION
FEES AND CHARGES. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE
IMPRACTICAL AND/OR EXTREMELY DIFFICULT To FIX OR ESTABLISH THE ACTUAL DAMAGE
SUSTAINED BY BUYER AS A RESULT OF SUCH MATERIAL DEFAULT BY SELLER, AND AGREE
THAT THE REMEDY SET FORTH IN (II) ABOVE IS A REASONABLE APPROXIMATION THEREOF.
ACCORDINGLY, IN THE EVENT THAT SELLER BREACHES THIS AGREEMENT BY MATERIALLY
DEFAULTING IN THE COMPLETION OF THE SALE, AND BUYER ELECTS NOT TO EXERCISE THE
REMEDY SET FORTH IN (I) ABOVE BUT INSTEAD ELECTS THE REMEDY SET FORTH IN (II)
ABOVE, SUCH SUMS SHALL CONSTITUTE AND BE DEEMED TO BE THE AGREED AND LIQUIDATED
DAMAGES OF BUYER. BUYER AGREES TO, AND DOES HEREBY, WAIVE ALL OTHER REMEDIES
AGAINST SELLER WHICH BUYER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF
SUCH DEFAULT BY SELLER.
SELLER'S INITIALS____ BUYER'S INITIALS____
6. Closing and Escrow.
6.1 Escrow Instructions. Upon execution of this Agreement, the
parties hereto shall deposit a copy of an executed counterpart of this Agreement
with Escrow Holder and this instrument shall serve as the instructions to Escrow
Holder for consummation of the purchase and sale contemplated hereby. Seller and
Buyer agree to execute such additional and supplementary escrow instructions as
may be appropriate to enable the Escrow Holder to comply with the terms of this
Agreement; provided, however, that in the event of any conflict between the
provisions of this Agreement and any supplementary escrow instructions, the
terms of this Agreement shall control.
6.2 Date of Closing. Unless otherwise agreed to in writing by the
parties, escrow shell close on or before the fifteenth (15th) day following the
expiration of the Conditions Period (the "Closing Date"). Such Closing Date may
not be further extended without the prior written approval of both Seller and
Buyer, except as otherwise expressly provided in this Agreement. In the event
the Closing does not occur on or before the Closing Date, the Escrow Holder
shall, unless it is notified by both parties to the contrary within three (3)
days prior to the actual date on which the Closing occurs, return to the
depositor thereof items which may have been deposited hereunder. Any such return
shall not, however, relieve either party hereto of any liability it may have for
its wrongful failure to close. For purposes of this Agreement, all references in
this Agreement (other than in this Section 6.2) to the term "Closing Date" shall
mean and refer to the actual date on which the Closing occurs.
6.3 Conveyance. At Closing, Seller shall convey to Buyer fee
simple title to the Property (excluding the Personal Property), by means of a
duly executed and acknowledged grant deed in substantially the form of Exhibit D
attached hereto and made a part hereof (the "Grant Deed"), subject to all
applicable laws, rules, regulations, codes, ordinances and orders, those
exceptions and survey matters approved by Buyer in accordance with the
provisions of Section 4.1.1, rights of tenants and subtenants in possession of
any portion of the Property, general real estate taxes and assessments for the
then applicable tax fiscal year in which the Closing occurs, and general real
estate taxes and assessments for subsequent years not yet due and payable. The
Closing shall mean the date that the Grant Deed is recorded in the official
records of Santa Xxxxx County, possession of the Property is delivered to Buyer
(subject to tenants' and subtenants' rights to possession), and Buyer fulfills
its obligations hereunder. If Seller cannot so deliver title to the Property to
Buyer, Buyer may, at its option, take title to the Property in such condition as
Seller can convey, without
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abatement the Purchase Price or, at Buyer's option, Buyer may exercise its
remedies in accordance with the provisions of Section 5.2 above.
6.4 Closing Documents.
6.4.1 Seller's Closing Documents. At Closing, in addition
to the Grant Deed, Seller shall deliver to Buyer, or Escrow Holder for release
to Buyer, all of the following documents: (i) originals or true and complete
copies of the Approved Contracts, if any; (ii) two (2) counterparts of the
Assignment and Assumption of Leases in substantially the form attached hereto as
Exhibit B, executed by Seller; (iii) two (2) counterparts of the Assignment and
Assumption of Contracts, Warranties and Permits in substantially the form
attached hereto as Exhibit C, executed by Seller, (iv) two (2) counterparts of a
no warranty xxxx of sale (the "Xxxx of Sale") for all of Seller's Personal
Property, if any, in substantially the form attached hereto as Exhibit E and
made a part hereof, executed by Seller; and (v) a certificate of non-foreign
status in accordance with the requirements of Internal Revenue Code Section
1445, as amended ("FIRPTA Certificate") and a California Form 590-RE.
6.4.2 Buyer's Closing Payments and Documents. At Closing,
in addition to Buyer's payment to Seller of the Purchase Price, Buyer shall
deliver to Seller and/or Escrow Holder for delivery to Seller, as applicable,
the following: (i) two (2) counterparts of the Assignment and Assumption of
Leases in substantially the form attached hereto as Exhibit B, executed by
Buyer; (ii) two (2) counterparts of the Assignment and Assumption of Contracts,
Warranties and Permits in substantially the form attached hereto as Exhibit C,
executed by Buyer; (iii) two (2) counterparts of the Xxxx of Sale, executed by
Buyer; and (iv) such other documents and instruments as may be reasonably
required by Seller, Buyer's lender or the Title Company to consummate the
transaction contemplated herein.
7. Maintenance of the Property; Casualty and Condemnation. Between
the Agreement Date and the date of the Closing, Seller shall maintain the
Property in substantially the same manner as at present, except for reasonable
wear and tear and any casualty. In the event that, prior to Closing, the
Property, or any part thereof, is destroyed or materially damaged, or if
condemnation proceedings are commenced against the Property, Buyer shall have
the right, exercisable by giving written notice of such decision to Seller
within fifteen (15) days after receiving written notice of such damage,
destruction or condemnation proceedings or threat thereof, to terminate this
Agreement (provided that Buyer shall not have the right to terminate this
Agreement if Buyer or any affiliate of Buyer which is a tenant under any one of
the Leases caused, directly or indirectly, any damage or destruction to the
Property), in which case, Seller shall cause the return to Buyer of the Deposits
(to the extent made), and neither Buyer nor Seller shall have any further
liability or obligation to each other hereunder except for the indemnities
contained in Sections 4.4 and 15 hereof, but subject to the provisions of
Section 4.3 above regarding Buyer's delivery to Seller of the Due Diligence
Materials. For purposes of this Agreement, material damage shall mean any damage
or loss which would (a) cost in excess of One Million Dollars ($1,000,000.00) to
repair or restore, as determined in good faith by Seller and Buyer, (b) require
more than ninety (90) days to repair or restore, as determined in good faith by
Seller and Buyer, or (c) reduce the total square footage of the Property by more
than twenty percent (20%). If Buyer elects to accept the Property in its then
existing condition, all proceeds of insurance or condemnation awards paid or
payable to Seller (subject to any of the tenants' rights thereto) by reason of
such damage, destruction or condemnation shall be paid or assigned to Buyer and
there shall not be any reduction or abatement of the Purchase Price. In the
event of non-material damage to the Property, Buyer shall accept the Property in
its then existing condition and proceed with the purchase, in which case all
proceeds of insurance or condemnation awards paid or payable to Seller (subject
to any of the tenants' rights thereto) by reason of such damage, destruction or
condemnation shall be paid or assigned to Buyer and there shall not be any
reduction or abatement of the Purchase Price.
8. Buyer's Consent to New Contracts Affecting the Property; Seller's
Cooperation. Seller shall not, after the expiration of the Conditions Period,
(a) enter into any lease, or any contract or agreement pertaining to the
Property which would survive the Closing or create any lien or obligation on the
Property that could survive the Closing, or (b) substantially modify any lease,
contract or agreement pertaining to the Property or waive any rights of Seller
thereunder, without in each case obtaining Buyer's prior written consent
thereto, which consent shall not be unreasonably withheld, conditioned or
delayed. Notwithstanding anything to the contrary contained herein, if Seller
proposes to enter into any lease, contract or agreement or any modification of
any of the foregoing affecting or pertaining to the Property, Seller shall
deliver to Buyer a true and complete copy of such document or instrument for
Buyer's written approval, which approval shall not be unreasonably withheld,
conditioned or delayed. Within five (5) days after Buyer's receipt of any such
proposed document or instrument, Buyer shall advise Seller of whether or not
Buyer reasonably approves of such proposed document or instrument. If Buyer
fails to notify Seller of its decision within such five (5) day period, then
such proposed document or instrument shall be deemed approved by Buyer. Seller
shall reasonably cooperate with Buyer in its acquisition of the Property. No
agreement executed by Buyer with respect to the Property shall be binding upon
Seller or the Property unless Buyer first obtains Seller's written consent
thereto.
9. Limited Liability. Buyer on behalf of itself and its agents,
employees, representatives, successors and assigns hereby agrees that in no
event or circumstance shall any of the employees, representatives, members,
partners, officers, directors, agents, property management company, affiliated
or related entities of Seller or Seller's property management company, namely
Lincoln Property Company Management Company, Inc., have any personal liability
under this Agreement, or to any of Buyer's creditors, or to any other party in
connection with the Property.
10. Intentionally omitted
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11. RELEASE. BUYER HEREBY AGREES THAT EACH OF SELLER AND LINCOLN PROPERTY
COMPANY MANAGEMENT COMPANY, INC., AND EACH OF THEIR PARTNERS, MEMBERS,
DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, AFFILIATED AND RELATED
ENTITIES, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE "RELEASEES") SHALL BE
RELEASED AND DISCHARGED FROM ANY AND ALL LIABILITIES, LOSSES, CLAIMS (INCLUDING
THIRD PARTY CLAIMS), DAMAGES (OF ANY NATURE WHATSOEVER), CAUSES OF ACTION,
COSTS, PENALTIES, FINES, JUDGMENTS, ATTORNEYS' FEES, CONSULTANTS' FEES AND
COSTS AND EXPERTS' FEES (COLLECTIVELY, THE "CLAIMS") DUE TO OR ARISING FROM (I)
THE PRESENCE OF ANY ENVIRONMENTAL PROBLEMS, OR THE USE, PRESENCE, STORAGE,
RELEASE, DISCHARGE, OR MIGRATION OF HAZARDOUS MATERIALS ON, IN, UNDER OR AROUND
THE PROPERTY REGARDLESS OF WHEN SUCH HAZARDOUS MATERIALS WERE FIRST INTRODUCED
IN, ON OR ABOUT THE PROPERTY, (II) ANY PATENT OR LATENT DEFECTS OR DEFICIENCIES
WITH RESPECT TO THE PROPERTY, (III) ANY AND ALL MATTERS RELATED TO THE
PROPERTY OR ANY PORTION THEREOF, INCLUDING, WITHOUT LIMITATION, THE CONDITION
AND/OR OPERATION OF THE PROPERTY AND EACH PART THEREOF, AND (IV) THE PRESENCE,
RELEASE AND/OR REMEDIATION OF ASBESTOS AND ASBESTOS CONTAINING MATERIALS IN, ON
OR ABOUT THE PROPERTY REGARDLESS OF WHEN SUCH ASBESTOS AND ASBESTOS CONTAINING
MATERIALS WERE FIRST INTRODUCED IN, ON OR ABOUT THE PROPERTY. BUYER SHALL BEAR
THE BURDEN OF PROOF UNDER THIS SECTION 11. BUYER HEREBY WAIVES AND AGREES NOT
TO COMMENCE ANY ACTION, LEGAL PROCEEDING, CAUSE OF ACTION OR SUITS IN LAW OR
EQUITY, OF WHATEVER KIND OR NATURE, INCLUDING, BUT NOT LIMITED TO, A PRIVATE
RIGHT OF ACTION UNDER THE FEDERAL SUPERFUND LAWS, 42 U.S.C. SECTION 9601 ET
SEQ. AND CALIFORNIA HEALTH AND SAFETY CODE SECTIONS 25300 ET SEQ., DIRECTLY OR
INDIRECTLY, AGAINST THE RELEASEES OR THEIR AGENTS IN CONNECTION WITH THE COSTS
OR LIABILITIES DESCRIBED ABOVE AND EXPRESSLY WAIVES THE PROVISIONS OF SECTION
1542 OF THE CALIFORNIA CIVIL CODE WHICH PROVIDES:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR
AND ALL SIMILAR PROVISIONS OR RULES OF LAW. BUYER ELECTS TO AND DOES ASSUME ALL
RISK FOR SUCH CLAIMS HERETOFORE AND HEREAFTER ARISING, WHETHER NOW KNOWN OR
UNKNOWN BY BUYER. THE AFOREMENTIONED RELEASE SHALL NOT INCLUDE ANY CLAIMS
ARISING OUT OF THE ENTRY INTO OR PERFORMANCE OF THIS AGREEMENT BY SELLER. IN
THIS CONNECTION AND TO THE EXTENT PERMITTED BY LAW, BUYER HEREBY AGREES,
REPRESENTS AND WARRANTS THAT BUYER REALIZES AND ACKNOWLEDGES THAT FACTUAL
MATTERS NOW UNKNOWN TO IT MAY HAVE GIVEN OR MAY HEREAFTER GIVE RISE TO CAUSES
OF ACTION, CLAIMS, DEMANDS, DEBTS, CONTROVERSIES, DAMAGES, COSTS, LOSSES AND
EXPENSES WHICH ARE PRESENTLY UNKNOWN, UNANTICIPATED AND UNSUSPECTED, AND BUYER
FURTHER AGREES, REPRESENTS AND WARRANTS THAT THE WAIVERS AND RELEASES HEREIN
HAVE BEEN NEGOTIATED AND AGREED UPON IN LIGHT OF THAT REALIZATION AND THAT
BUYER NEVERTHELESS HEREBY INTENDS TO RELEASE, DISCHARGE AND ACQUIT SELLER FROM
ANY SUCH UNKNOWN CAUSES OF ACTION, CLAIMS, DEMANDS, DEBTS, CONTROVERSIES,
DAMAGES, COSTS, LOSSES AND EXPENSES WHICH MIGHT IN ANY WAY BE INCLUDED AS A
MATERIAL PORTION OF THE CONSIDERATION GIVEN TO SELLER BY BUYER IN EXCHANGE FOR
SELLER'S PERFORMANCE HEREUNDER.
SELLER HAS GIVEN BUYER MATERIAL CONCESSIONS REGARDING THIS TRANSACTION IN
EXCHANGE FOR BUYER AGREEING TO THE PROVISIONS OF THIS SECTION 11. SELLER AND
BUYER HAVE EACH INITIALED THIS SECTION 11 TO FURTHER INDICATE THEIR AWARENESS
AND ACCEPTANCE OF EACH AND EVERY PROVISION HEREOF. THE PROVISIONS OF THIS
SECTION 11 SHALL SURVIVE THE CLOSING AND SHALL NOT BE DEEMED MERGED INTO ANY
INSTRUMENT OR CONVEYANCE DELIVERED AT THE CLOSING.
INITIALS: BUYER: SELLER:
-------- --------
12. AS-IS Condition of Property. Buyer acknowledges, represents and
warrants that prior to Closing, it or its agents will have inspected the
Property and observed the physical characteristics and condition of the
Property. Buyer hereby waives any and all deficiencies or defects in the
physical characteristics and condition of the Property which would be disclosed
by such inspection. Buyer further acknowledges that except for any
representations made by Seller in this Agreement neither Seller or any of
Seller's employees, agents or representatives have made any representations,
warranties or agreements by or on behalf of Seller as to any matters concerning
the Property, the size of the Land, the size of the Improvements (including
without limitation, any discrepancies in the actual rentable square footage of
any leased premises within the Improvements), the present use of the Property or
the suitability of Buyer's intended use of the Property, including without
limitation, the suitability of the topography; the availability of water rights
or utilities; the present and future zoning, subdivision and any and all other
land use matters; the condition of the soil, subsoil or groundwater of the
Property and any and all other environmental matters; the purpose(s) to which
the Property is suited; drainage; flooding; access to public roads; or proposed
routes or roads or extensions thereof other than explicitly disclosed in this
Agreement. Buyer hereby acknowledges and agrees that the Property is to be
purchased, conveyed and accepted by Buyer in its present condition, "AS IS",
"WHERE IS" AND WITH ALL FAULTS, and that no patent or latent defect in the
condition of the Property whether or not known or discovered, shall affect the
rights of either Seller or Buyer hereunder. Any and all information and
documents furnished to Buyer by or on behalf of Seller relating to the Property
shall be deemed furnished as a courtesy to Buyer but without any warranty of any
kind from Seller. Buyer hereby represents and warrants to Seller that Buyer has
performed an independent inspection and investigation of the Property and has
also investigated and has knowledge of operative or proposed governmental laws
and regulations including without limitation, land use laws and regulations to
which the Property may be subject, and Buyer further represents that it shall
acquire the Property solely upon the basis of its independent
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inspection and investigation of the Property, including without limitation,
Buyer's review and determination of the applicability and effect of such laws
and regulations. Except for any representations expressly made by Seller in this
Agreement, Buyer has neither received nor relied upon any representations
concerning such laws and regulations from Seller, Seller's employees, agents or
any other person acting on or in behalf of Seller. The provisions of this
Section 12 shall survive the Closing and shall not be deemed merged into any
instrument or conveyance delivered at the Closing.
13. Prorations and Rent Arrearages. At Closing, all prepaid rents, rents
actually paid and collected, and any other charges owing and which have been
collected by Seller for or in respect of the month in which the Closing occurs
shall be prorated as of and through the Closing Date on the basis of a 365-day
year, and the prorated amount attributable to the period following the Closing
shall either be paid to Buyer at the Closing or credited against the Purchase
Price, at Seller's option. Any CAM charges payable by tenants on an estimated
basis shall be reconciled against actual expenses as of and at the Closing and
Seller shall provide a proposed reconciliation for Buyer's approval. There shall
not be any further reconciliation of such CAM expenses after the Closing, the
proration of such CAM expenses at the Closing being conclusively presumed to be
accurate. In addition, to the extent not paid directly by any tenants of the
Property, real property taxes and assessments, water, sewer and utility charges
and amounts payable under the Approved Contracts (calculated on the basis of the
period covered), and other expenses normal to the operation and maintenance of
the Property shall be prorated as of and through the Closing Date on the basis
of a 365-day year. At the Closing Seller shall credit against the Purchase Price
the amount equal to the aggregate of all security deposits being held by Seller
in connection with the Leases. Buyer shall promptly account to Seller and shall
immediately reimburse Seller for all expense reimbursements and other charges
received by Buyer after the Closing which apply to any period prior to the
Closing to the extent Seller has not already been paid for or credited with such
sums.
14. Closing Costs. Except as expressly set forth herein, all costs
associated with the transfer of title and the associated escrow shall be in
accordance with the customary practices in Santa Xxxxx County. Seller shall pay
one-half of any applicable city transfer tax, the documentary county transfer
taxes, the escrow fee, the premium charged by the Title Company for the CLTA
Title Policy (excluding any endorsements thereto), and the recording costs with
respect to the Grant Deed. At Closing, Buyer shall obtain from the Title Company
a CLTA Owner's Policy of Title Insurance in the amount of the Purchase Price
insuring fee simple title to the Property in Buyer (the "CLTA Title Policy").
Buyer may elect to cause the Title Company to issue an ALTA Owner's Policy of
Title Insurance (Form 1992) and if Buyer so elects in writing, Buyer shall
provide the Title Company with an ALTA Survey of the Property, at its sole cost
and expense the "ALTA Policy"). At Closing Buyer shall pay the escrow fees,
one-half of the applicable city transfer tax and the incremental premiums or
other charges related to the ALTA Policy (including all endorsements thereto).
15. Broker. Seller and Buyer respectively represent that there are no
brokers or other intermediaries entitled to receive brokerage commissions or
fees or other compensation out of or with respect to the sale of the Property.
Seller and Buyer shall indemnify and save and hold each other harmless from and
against all claims, suits, damages and costs incurred or resulting from the
claim of any person that a commission, fee or remuneration is due in connection
with this transaction.
16. Notices. Any notice or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been given when delivered by
U.S. mail, registered or certified, return receipt requested, postage prepaid,
or by overnight delivery service showing receipt of delivery, or by personal
delivery, or by facsimile transmission. Such notices shall be sent to the
parties at the following addresses, or such other address as may otherwise be
indicated by any such party in writing.
If to Seller: Lincoln Property Company N.C., Inc.
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxx Xxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxx XxXxxxxxxx
AND Xx. Xxxxxxx Xxxxxx
Phone number: 000-000-0000
Facsimile number: 000-000-0000
with a copy to: Real Estate Law Group, LLP
Marina Office Plaza
0000 Xxxxxxxxx Xxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esquire
Phone number: 000-000-0000
Facsimile number: 000-000-0000
If to Buyer: Jabil Circuit, Inc.
00000 Xxxxxxxxx Xxxx.
Xx. Xxxxxxxxxx, XX 00000
Attention: Xx. Xxx Xxxxx
Phone number: ______________
Facsimile number: ______________
with a copy to: ________________________________
________________________________
________________________________
Attention: _____________________
Phone number: ______________
Facsimile number: ______________
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Notices as aforesaid shall be effective upon the earlier of actual receipt, or
twenty-four (24) hours after deposit with the messenger or delivery service, or
the next business day after delivery to an overnight delivery service, or
within three (3) days after the deposit in the U.S. mail, or upon confirmation
of transmission by facsimile, or when receipt is refused.
17. Entire Agreement. This Agreement constitutes the entire understanding
of the parties and all prior agreements, representations, and understandings
between the parties, whether oral or written, are deemed null and void, all of
the foregoing having been merged into this Agreement. The parties acknowledge
that each party and/or its counsel have reviewed and revised this Agreement and
that no rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall be employed in the interpretation of
this Agreement or any amendments or exhibits to this Agreement or any document
executed and delivered by either party in connection with this Agreement.
18. Assignment. Buyer may not assign its rights, obligations and interest
in this Agreement to any other person or entity, without first obtaining
Seller's prior written consent thereto, which consent may be given or withheld
in Seller's sole and absolute discretion. If Seller expressly consents to any
assignment requested by Buyer then any such assignment shall not relieve Buyer
from any liability or its obligations under or in connection with this
Agreement. Any attempted assignment not in compliance with the provisions of
this Section 18 shall be null and void. This Agreement shall inure to the
benefit of and be binding upon the parties to this Agreement and their
respective successors and permitted assigns.
19. Severability. If for any reason, any provision of this Agreement
shall be held to be unenforceable, it shall not affect the validity or
enforceability of any other provision of this Agreement and to the extent any
provision of this Agreement is not determined to be unenforceable, such
provision, or portion thereof, shall be, and remain, in full force and effect.
20. California Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
21. Modifications. Any and all exhibits attached hereto shall be deemed
part hereof. This Agreement, including exhibits, if any, expresses the entire
agreement of the parties with respect to the purchase and sale of the Property
and supersedes any and all previous agreements between the parties with regard
to the purchase and sale of the Property. There are no other understandings,
oral or written, which in any way alter or enlarge the terms of this Agreement,
and there are not warranties or representations of any nature whatsoever with
respect to the purchase and sale of the Property, either expressed or implied,
except as may expressly be set forth herein. Any and all future modifications of
this Agreement will be effective only if it is in writing and signed by the
parties hereto. The terms and conditions of such future modifications of this
Agreement shall supersede and replace any inconsistent provisions in this
Agreement.
22. Confidentiality. Buyer agrees that, (a) except as otherwise provided
or required by valid law, (b) except to the extent Buyer considers such
documents or information reasonably necessary to prosecute and/or defend any
claim made with respect to the Property or this Agreement, and (c) except to the
extent reasonably necessary to deliver such documents or information to Buyer's
employees, paralegals, attorneys and/or consultants in connection with Buyer's
evaluation of this transaction, (i) Buyer, including without limitation, Buyer's
agents, consultants, representatives and employees, shall use diligent efforts
to keep the contents of this Agreement (including without limitation, the amount
of consideration being paid by Buyer hereunder) and any materials, reports,
documents, data, test results, and other information related to the transaction
contemplated hereby confidential, including without limitation, the contents of
this Agreement, and all information regarding Buyer's agents, consultants,
representatives and employees, shall refrain from generating or participating in
any publicity or press release regarding this transaction without the prior
written consent of Seller. The provisions of this Section 22 shall survive the
Closing and shall not be deemed merged into any instrument or conveyance
delivered at the Closing.
23. Counterparts. This Agreement may be executed in counterparts. All
executed counterparts shall constitute one agreement, and each counterpart shall
be deemed an original. Buyer and Seller agree that the delivery of an executed
copy of this Agreement by facsimile shall be legal and binding and shall have
the same full force and effect as if an original executed copy of this Agreement
had been delivered.
24. Dispute Costs. In the event any dispute between the parties with
respect to this Agreement results in litigation or other proceeding, the
prevailing party shall be reimbursed by the party not prevailing in such
proceeding for all reasonable costs and expenses, including, without limitation,
reasonable attorneys' and experts' fees and costs incurred by the prevailing
party in connection with such litigation or other proceeding and any appeal
thereof. Such costs, expenses and fees shall be included in and made a part of
the judgment recovered by the prevailing party, if any.
25. Seller's Representations. Seller hereby represents to Buyer that, as
of the date hereof, the following are true and accurate:
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25.1 Due Authorization. The execution of this Agreement by Seller, the
deliveries by Seller to Buyer, Seller's performance hereof and the transactions
contemplated hereby have been duly authorized by the requisite action on the
part of Seller and no other authorization or consent is required for the
execution and performance hereof. Seller hereby further represents and warrants
that the parties signing this Agreement on behalf of Seller have full power and
authority to do so and to fully bind Seller hereunder.
25.2 Sole Owner. Seller is the sole owner of (and Buyer will acquire
hereunder) the entire right, title and interest in and to the Property.
The foregoing representations and warranties of Seller made hereinabove
shall not survive the Closing and shall be deemed merged into the Grant Deed
at the Closing, it being the intention of the parties that Buyer acquire the
Property at the Closing "AS IS", "WHERE IS" and "WITH ALL FAULTS".
26. Buyer's Representations. Buyer hereby represents and warrants to
Seller that the execution of this Agreement by Buyer, the deliveries by Buyer
to Seller, Buyer's performance hereof and the transactions contemplated hereby
have been duly authorized by the requisite action on the part of Buyer and no
other authorization or consent is required for the execution and performance
hereof. Buyer hereby further represents and warrants that the parties signing
this Agreement on behalf of Buyer have full power and authority to do so and to
fully bind Buyer hereunder. Buyer hereby further represents and warrants to
Seller that (i) Buyer is not presently the subject of a bankruptcy, insolvency
or probate proceedings and Buyer neither anticipates nor intends to file or
cause to be filed any bankruptcy or insolvency proceeding involving Buyer or
Buyer's assets during the pendency of this Agreement, (ii) Buyer is a
sophisticated real estate company with numerous investments and extensive
experience in real estate matters, and (iii) prior to Closing, Buyer and its
agents will have inspected the Property, fully observed the physical
characteristics and condition of the Property, and performed a thorough
investigation of the suitability of Buyer's intended use of the Property,
including without limitation, the suitability of the topography; the
availability of water rights or utilities; the present and future zoning,
subdivision and any and all other land use matters; the condition of the soil,
subsoil or groundwater of the Property and any and all other environmental
matters; the purpose(s) to which the Property is suited; drainage; flooding;
access to public roads; and proposed routes or roads or extensions relative to
the Property.
27. Seller's Exchange. Seller shall have the right (provided Seller has
notified Buyer in writing at least five (5) days prior to the date set for the
Closing) to either (a) assign its rights, interest and obligations under this
Agreement to an accommodator, pursuant to an agreement reasonably acceptable
to both Seller and Buyer, which will enable Seller to accomplish a deferred
exchange in accordance with the provisions of Section 1031 of the Internal
Revenue Code, as amended (the "Code"), or (b) designate a parcel or parcels of
other real property (the "Exchange Property") which Seller desires to exchange
for the Property. The parties shall cooperate with one another in effecting
each such exchange provided that: (i) Buyer shall not incur any additional
liability of financial obligation as a consequence of Seller's exchange; (ii)
any such exchange shall in no way increase the amount of monies for which Buyer
is obligated to pay under the provisions of this Agreement; (iii) Buyer shall
have no obligation to close on the Exchange Property other than
contemporaneously with the Closing contemplated by this Agreement; (iv) Buyer
shall not be required to accept title (beneficial or legal) to the Exchange
Property; and (v) Seller shall defend and hold Buyer harmless from any and all
liabilities, claims, losses, or expenses which Buyer incurs, or to which Buyer
may be exposed (but to the extent actually incurred), as a result of Buyer's
participation in the exchange contemplated herein, including, but not limited
to, reasonable attorneys' fees and other costs of defense. The performance by
the parties of their obligations under this Agreement shall not be contingent
upon Seller's ability to effectuate an exchange, provided that Buyer does not
take any acts or fail to take any acts which materially and adversely affects
Seller's ability to effectuate such an exchange.
28. Time of the Essence; and Business Days. Time is of the essence of this
Agreement. Unless the context otherwise requires, all periods terminating on a
given day, period of days, or date shall terminate at 5:00 p.m. (Pacific Time)
on such date or dates and references to "days" shall refer to calendar days
except if such references are to "business days" which shall refer to days
which are not a Saturday, Sunday or legal holiday. Notwithstanding the
foregoing, if any period terminates on a Saturday, Sunday or legal holiday,
under the laws of the State of California, the termination of such period
shall be on the next succeeding business day. The time in which any act
provided under this Agreement is to be done, shall be computed by excluding
the first day and including the last day, unless the last day is a Saturday,
Sunday or legal holiday under the laws of the State of California, and then it
is also so excluded.
29. Agreement Date. The parties hereby covenant and agree that the
"Agreement Date" shall be the date on which the Escrow Holder confirms in
writing to both Seller and Buyer that the Escrow Holder has actually received
from both parties two (2) signed and initialled original counterparts of this
Agreement and the Escrow Holder is in a position to release to each of the
parties a fully executed original of this Agreement signed and initialled in
counterparts. The Escrow Holder shall insert such date in each original
counterpart of this Agreement on Page 1 hereof. If either party fails to
submit two (2) signed and initialled original counterparts of this Agreement to
Escrow Holder within five (5) business days after the delivery to Escrow Holder
by the other party of two (2) signed and initialled original counterparts of
this Agreement, then the party which delivered to Escrow Holder said signed and
initialled counterparts of this Agreement may, at its option, withdraw such
signed and initialled counterparts therefrom without any obligation to resubmit
same to Escrow Holder thereafter.
IN WITNESS WHEREOF the parties have caused this Agreement to be executed
as of the day and year first above written.
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SELLER:
LINCOLN-RECP GREAT OAKS OPCO, LLC,
a Delaware limited liability company
By: RECP LINCOLN GREAT OAKS HOLDCO, LLC,
a Delaware limited liability company
Its Managing Member
By: CF REALTY, INC.,
a Delaware corporation
Its Managing Member
By:
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Its:
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By:
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Its:
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BUYER:
Jabil Circuit, Inc.,
a Delaware corporation
By:
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Its:
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By:
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Its:
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