LEASE
0000 Xxx Xxxxx Xxx
Xxxxxxxx, Xxxxxxxxxx
Landlord
CalWest Industrial Properties, LLC
Tenant
Invitrogen Corporation
SINGLE TENANT INDUSTRIAL LEASE
REFERENCE PAGE
BUILDING: 0000 Xxx Xxxxx Xxx
Xxxxxxxx, Xxxxxxxxxx 00000-0000
LANDLORD: CalWest Industrial Properties, LLC
LANDLORD'S ADDRESS: 0000 Xxxxxxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
LEASE REFERENCE DATE: May 31, 2001
TENANT: Invitrogen Corporation
TENANT'S ADDRESS: 0000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
BUILDING RENTABLE AREA: Approximately 320,025 sq. ft.
USE: General office (including an
information/computer room),
manufacturing, research and development,
warehousing, distribution and any
ancillary uses related to such purposes,
as permitted under existing zoning and
applicable laws, regulations,
ordinances and recorded covenants
COMMENCEMENT DATE: November 1, 2001
TERMINATION DATE: October 31, 2011
TERM OF LEASE: 10 years, beginning on the Commencement
Date and ending on the
Termination Date (unless sooner
terminated or extended pursuant to the
Lease)
INITIAL ANNUAL RENT (Arcicle 3): $1,403,109.12; See Addendum
INITIAL MONTHLY INSTALLMENT OF
ANNUAL RENT (Article 3): $116,925.76; See Addendum
ASSIGNMENT/SUBLETTING FEE: $500.00
SECURITY DEPOSIT: $0.00
REAL ESTATE BROKERS
DUE COMMISSION: CB Xxxxxxx Xxxxx, Inc. (Landlord's
Broker) and
San Diego Commercial Real Estate
Services (Xxxxxx's Broker)
The Reference Page information is incorporated into and made a part of the
Lease. In the event of any conflict between any Reference Page information and
the Lease, the Lease shall control. This Lease includes Exhibits A, B, C, D-1
and D-2, and each of which are made a part of this Lease.
LANDLORD: TENANT:
CalWest Industrial Properties, LLC,
Invitrogen Corporation,
a California limited liability company a Delaware corporation
By: RREEF America, L.L.C., By: /s/ [ILLEGIBLE]
-----------------------
a Delaware limited liability company Title: Vice President
--------------------
By: /s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
--------------------------------- --------------------
Title: VP - Authorized Representative Title: [ILLEGIBLE]
------------------------------ -------------------
Dated: 6/11/01 Dated: June 6, 2001
--------------------- --------------------
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TABLE OF CONTENTS
Article Page
1. USE AND RESTRICTIONS ON USE ............................................ 1
2. TERM ................................................................... 1
3. RENT ................................................................... 2
4. TAXES .................................................................. 2
5. SECURITY DEPOSIT ....................................................... 3
6. ALTERATIONS ............................................................ 3
7. REPAIR ................................................................. 3
8. LIENS .................................................................. 4
9. ASSIGNMENT AND SUBLETTING .............................................. 4
10. INDEMNIFICATION ....................................................... 5
11. INSURANCE ............................................................. 6
12. WAIVER OF SUBROGATION ................................................. 6
13. SERVICES AND UTILITIES ................................................ 6
14. HOLDING OVER .......................................................... 6
15. SUBORDINATION ......................................................... 7
16. REENTRY BY LANDLORD ................................................... 7
17. DEFAULT ............................................................... 7
18. REMEDIES .............................................................. 8
19. TENANT'S BANKRUPTCY OR INSOLVENCY ..................................... 9
20. QUIET ENJOYMENT ....................................................... 10
21. DAMAGE BY FIRE, ETC ................................................... 10
22. EMINENT DOMAIN ........................................................ 11
23. SALE BY LANDLORD ...................................................... 11
24. ESTOPPEL CERTIFICATES ................................................. 12
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25. SURRENDER OF PREMISES ................................................. 12
26. NOTICES ............................................................... 12
27. TAXES PAYABLE BY TENANT ............................................... 13
28. DEFINED TERMS AND HEADINGS ............................................ 13
29. AUTHORITY ............................................................. 13
30. COMMISSIONS ........................................................... 13
31. TIME AND APPLICABLE LAW ............................................... 14
32. SUCCESSORS AND ASSIGNS ................................................ 14
33. ENTIRE AGREEMENT ...................................................... 14
34. EXAMINATION NOT OPTION ................................................ 14
35. RECORDATION ........................................................... 14
36. LIMITATION OF LANDLORD'S LIABILITY .................................... 14
EXHIBIT A - PREMISES
EXHIBIT B - INITIAL ALTERATIONS
EXHIBIT C - ADDENDUM TO LEASE
EXHIBITS D-1 AND D-2 - CONFIDENTIALITY AGREEMENTS
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LEASE
By this Lease Landlord Leases to Tenant and Tenant leases from
Landlord the Building, together with parking areas, walkways, driveways and
landscaped areas related thereto, as set forth and described on the
References Page (the "Premises"). The Reference Page, including all terms
defined thereon, is incorporated as part of this Lease.
1. USE AND RESTRICTIONS ON USE.
1.1 The Premises are to be used solely for the purposes stated on the
Reference Page. Tenant shall not do or permit anything to be done in or
about the Premises which will in any way obstruct or interfere with the
rights of other tenants or occupants of the Building or injure, annoy, or
disturb them or allow the Premises to be used for any improper, immoral,
unlawful, or objectionable purpose.* Tenant shall not do, permit or suffer
in, on, or about the Premises the sale of any alcoholic liquor without the
written consent of Landlord first obtained, or the commission of any waste
to the Premises. Tenant shall comply with all governmental laws, ordinances
and regulations (collectively, "Laws") applicable to the use of the
Premises and its occupancy and shall promptly comply with all governmental
orders and directions for the correction, prevention and abatement of any
violations in or upon, or in connection with, the Premises, all at Tenant's
sole expense. See Addendum.
----------
* See Section 1.3 regarding the Roof Lease.
1.2 Except as otherwise specifically provided in this Lease, Tenant shall
not, and shall not direct, suffer or permit any of its agents, contractors,
employees, licensees or invitees to at any time handle, use, manufacture,
store or dispose of in or about the Premises or the Building any
(collectively "Hazardous Materials") flammables, explosives, radioactive
materials, hazardous wastes or materials, toxic wastes or materials, or
other similar substances, petroleum products or derivatives or any
substance subject to regulation by or under any federal, state and local
laws and ordinances relating to the protection of the environment or the
keeping, use or disposition of environmentally hazardous materials,
substances, or wastes, presently in effect or hereafter adopted, all
amendments to any of them, and all rules and regulations issued pursuant to
any of such laws or ordinances (collectively "Environmental Laws"), nor
shall Tenant suffer or permit any Hazardous Materials to be used in any
manner not fully in compliance with all Environmental Laws, in the Premises
or the Building and appurtenant land or allow the environment to become
contaminated with any Hazardous Materials. Notwithstanding the foregoing,
Tenant may handle, store, use or dispose of products containing small
quantities of Hazardous Materials (such as aerosol cans containing
insecticides, toner for copiers, paints, paint remover and the like) to the
extent customary and necessary for the use of the Premises for general
office purposes; provided that Tenant shall always handle, store, use, and
dispose of any such Hazardous Materials in a safe and lawful manner and
never allow such Hazardous Materials to contaminate the Premises, Building
and appurtenant land or the environment. Tenant shall protect, defend,
indemnify and hold each and all of the Landlord Entities (as defined in
Article 28) harmless from and against any and all loss, claims, liability
or costs (including court costs and attorney's fees) incurred by reason of
any actual or asserted failure of Tenant to fully comply with all
applicable Environmental Laws, or the presence, handling, use or
disposition in or from the Premises of any Hazardous Materials (even though
permissible under all applicable Environmental Laws or the provisions of
this Lease caused by Tenant or its employees, agents, contractors or
invitees ), or by reason of any actual or asserted failure of Tenant to
keep, observe, or perform any provision of this Section 1.2.
See Addendum
2. TERM
2.1 The Term of this Lease shall begin on the date ("Commencement
Date") which shall be the later of the Commencement Date as shown on the
Reference Page and the date that Landlord shall tender possession of the
Premises to Tenant. If requested in writing by either Landlord or Tenant,
Landlord and Tenant shall execute a memorandum setting forth the actual
Commencement Date and Termination Date.
2.1.1 Xxxxxx agrees that in the event of the inability of
Landlord to deliver possession of the Premises on the Commencement Date,
Landlord shall not be liable for any damage resulting from such inability.
See Addendum
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2.2 In the event Landlord shall permit Tenant to occupy the Premises prior
to the Commencement Date, such occupancy shall be subject to all the provisions
of this Lease. Said early possession shall not advance the Termination Date.
3. RENT.
3.1 Xxxxxx agrees to pay Landlord the Annual Rent in effect from time to
time by paying the Monthly Installment of Rent then in effect on or before the
first day of each full calendar month during the Term, except that the rent for
November 2001 shall be paid upon the execution of this Lease. The Monthly
Installment of Rent in effect at any time shall be one-twelfth of the Annual
Rent in effect at such time. Rent for any period during the Term which is less
than a full month shall be a prorated portion of the Monthly Installment of Rent
based upon a thirty (30) day month. Said rent shall be paid to Landlord, without
deduction or offset and without notice or demand, at the Landlord's address, as
set forth on the Reference Page, or to such other person or at such other place
as Landlord may from time to time designate in writing.
3.2 Tenant recognizes that the late payment of any rent or other sum due
under this Lease will result in administrative expense to Landlord, the extent
of which additional expense is extremely difficult and economically impractical
to ascertain. Tenant therefore agrees that if rent or any other sum is not paid
within 3 days after Xxxxxx receives notice that rent or such sum is due and
payable pursuant to this Lease, a late charge shall be imposed in an amount
equal to the greater of: (a) Fifty Dollars($50.00), or (b) a sum equal to three
percent (3%) per month of the unpaid rent or other payment. The amount of the
late charge to be paid by Tenant shall be reassessed and added to Xxxxxx's
obligation for each successive monthly period until paid. The provisions of this
Section 3.2 in no way relieve Tenant of the obligation to pay rent or other
payments on or before the date on which they are due, nor do the terms of this
Section 3.2 in any way affect Landlord's remedies pursuant to Article 18 in the
event said rent or other payment is unpaid after date due.
4. TAXES
4.1 Tenant shall pay as additional rent all Taxes incurred on the Building
during the Term. Taxes shall be defined as real estate taxes and any other
taxes, charges and assessments which are levied with respect to the Building or
the land appurtenant to the Building, or with respect to any improvements,
fixtures and equipment or other property of Landlord, real or personal, located
in the Building and used in connection with the operation of the Building and
said land, any payments to any ground lessor in reimbursement of tax payments
made by such lessor; and all fees, expenses and costs incurred by Landlord in
investigating, protesting, contesting or in any way seeking to reduce or avoid
increase in any assessments, levies or the tax rate pertaining to any Taxes to
be paid by Landlord in any Lease Year during the Term. Taxes shall not include
any corporate franchise, or estate, inheritance or net income tax, or tax
imposed upon any transfer by Landlord of its interest in this Lease or the
Building.
4.2 Prior to the actual determination thereof, Landlord may from time to
time estimate Tenant's liability for Taxes under Section 4.1, Article 6 and
Article 27 for the lease year or portion thereof. Landlord will give Tenant
written notification of the amount of such estimate and Xxxxxx agrees that it
will pay, by increase of its Monthly Installments of Rent due in such lease
year, additional rent in the amount of such estimate. Any such increased rate of
Monthly Installments of Rent pursuant to this Section 4.2 shall remain in effect
until further written notification to Tenant pursuant hereto.
4.3 When the above mentioned actual determination of Tenant's liability for
Taxes is made in any lease year and when Tenant is so notified in writing, then:
4.3.1 If the total additional rent Tenant actually paid pursuant to
Section 4.2 is more than Tenant's liability for Taxes, then Landlord shall
refund the difference within 30 days.
4.4 If the Commencement Date is other than January 1 or if the Termination
Date is other than December 31, Xxxxxx's liability for Taxes for the year in
which said Date occurs shall be prorated based upon a three hundred sixty-five
(365) day year.
4.5 Even though the Term has expired and Xxxxxx has vacated the premises,
when the final determination is made of Tenant's liability for Taxes for the
year in which the Lease terminated, Tenant shall pay any difference due over the
estimated taxes paid; and conversely any overpayment, less any amounts due
Landlord under this Lease, shall be rebated to Tenant.
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6. ALTERATIONS.
6.1 Except for those, if any, specifically provided for in Exhibit B to
this Lease, Tenant shall not make or suffer to be made any alterations,
additions, or improvements, including, but not limited to, the attachment of any
fixtures or equipment in, on, or to the Premises or any part thereof or the
making of any improvements as required by Article 7, without the prior written
consent of Landlord which consent shall not be unreasonably withheld,
conditioned or delayed. When applying for such consent, Tenant shall, if
requested by Landlord, furnish complete plans and specifications for such
alterations, additions and improvements.
See Addendum.
6.2 In the event Landlord consents to the making of any such alteration,
addition or improvement by Tenant, the same shall be made using Tenant's
contractor.
6.4
See Addendum.
6.5 Tenant shall pay in addition to any sums due pursuant to Article 4, any
increase in real estate taxes attributable to any such alteration, addition or
improvement for so long, during the Term, as such increase is ascertainable; at
Xxxxxxxx's election said sums shall be paid in the same way as sums due under
Article 4.
7. REPAIR
See Addendum.
7.1 By taking possession of the Premises, Xxxxxx accepts them as being in
good order, condition and repair and in the condition in which Landlord is
obligated to deliver them. It is hereby understood and agreed that no
representations respecting the condition of the Premises or the Building have
been made by Landlord to Tenant, except as specifically set forth in this Lease.
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7.2 Subject to Xxxxxxxx's duties set forth in Section 7.1 above, Tenant
shall at its own cost and expense keep and maintain all parts of the Premises in
good condition, promptly making all necessary repairs and replacements, whether
ordinary or extraordinary, with materials and workmanship of the same character,
kind and quality as the original (including, but not limited to, repair and
replacement of all fixtures installed by Tenant, water heaters serving the
Premises, windows, glass and plate glass, doors, exterior stairs, skylights, any
special office entries, interior walls and finish work, floors and floor
coverings, heating and air conditioning systems, electrical systems and
fixtures, sprinkler systems, dock boards, truck doors, dock bumpers, driveways,
rail tracks serving the Premises, plumbing work and fixtures, and performance of
regular removal of trash and debris). Tenant as part of its obligations
hereunder shall keep the Premises in a clean and sanitary condition. Tenant
will, as far as possible keep all such parts of the Premises from deterioration
due to ordinary wear and from falling temporarily out of repair, and upon
termination of this Lease in any way Tenant will yield up the Premises to
Landlord in good condition and repair, loss by fire or other casualty excepted
(but not excepting any damage to glass). See Section 25.
7.3 Except as set forth in this Section 7.3 and as provided in Article 21,
there shall be no abatement of rent and no liability of Landlord by reason of
any injury to or interference with Xxxxxx's business arising from the making of
any repairs, alterations or improvements in or to any portion of the Building or
the Premises or to fixtures, appurtenances and equipment in the Building.
See Addendum.
7.4 Tenant shall, at its own cost and expense, enter into a regularly
scheduled preventive maintenance/service contract with a maintenance contractor
approved by Landlord for servicing all heating and air conditioning systems and
equipment serving the Premises (and a copy thereof shall be furnished to
Landlord). The service contract must include all services suggested by the
equipment manufacturer in the operation/maintenance manual and must become
effective within thirty (30) days of the date Tenant takes possession of the
Premises. Landlord may, upon notice to Tenant, enter into such a maintenance/
service contract on behalf of Tenant, or perform the work and in either case,
charge Tenant the cost thereof along with a reasonable amount for Landlord's
overhead.
7.5 Tenant hereby waives and releases its right to make repairs at
Landlord's expense under Section 1941 and 1942 of the California Civil Code or
under any similar law, statute or ordinance now or hereafter in effect.
See Section 7.1.
See Addendum.
8. LIENS.
Tenant shall keep the Premises, the Building and appurtenant land and Tenant's
leasehold interest in the Premises free from any liens arising out of any
services, work or materials performed, furnished, or contracted for by Tenant,
or obligations incurred by Tenant. In the event that Tenant shall not, within
(30) days following the imposition of any such lien, either cause the same to be
released of record or provide Landlord with insurance against the same issued by
a major title insurance company or such other protection against the same as
Landlord shall accept, Landlord shall have the right to cause the same to be
released by such means as it shall deem proper, including payment of the claim
giving rise to such lien. All such sums paid by Xxxxxxxx and all expenses
incurred by it in connection therewith shall be considered additional rent and
shall be payable to it by Tenant on demand. Landlord shall have the right at all
times to post and keep posted on the Premises any notices permitted or required
by law, or that Landlord shall deem proper, for the protection of Landlord, the
Premises, the Building, and any other party having an interest therein, from
mechanics' and materialmen's liens, and Tenant shall give to Landlord at least
five business days' prior notice of commencement of any construction on the
Premises.
9. ASSIGNMENT AND SUBLETTING
9.1 Tenant shall not have the right to assign or pledge this Lease or to
sublet the whole or any part of the Premises whether voluntarily or by operation
of law, or permit the use or occupancy of the Premises by anyone other than
Tenant, and shall not make, suffer or permit such assignment, subleasing or
occupancy without the prior written consent of Landlord (such consent shall not
be unreasonably withheld, conditioned or delayed) and said restrictions shall be
binding upon any and all assignees of the Lease and subtenants of the Premises.
In the event Tenant desires to sublet, or permit such occupancy of, the
Premises, or any portion thereof, or assign this Lease, Tenant shall give
written notice thereof to Landlord at lease thirty (30) days but no more than
one hundred eighty (180) days prior to the proposed subtenant or assignee, the
relevant terms of any sublease or assignment and copies of financial reports and
other relevant financial reports and other relevant financial information of the
proposed subtenant or assignee.
See Addendum.
9.2 Notwithstanding any assignment or subletting, permitted or otherwise,
Tenant shall at all times remain directly, primarily and fully responsible and
liable for the payment of the rent specified in this Lease and for compliance
with all of its other obligations under the terms, provisions and covenants of
this Lease. Upon the occurrence of an Event of Default, if the Premises or any
part of them are then assigned or sublet, Landlord, in addition to any other
remedies provided in this Lease or provided by law, may, at its option, collect
directly from
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such assignee or subtenant all rents due and becoming due to Tenant under such
assignment or sublease and apply such rent against any sums due to Landlord from
Tenant under this Lease, and no such collection shall be construed to constitute
a novation or release of Tenant from the further performance of Tenant's
obligations under this Lease.
9.3
9.4
9.5 Notwithstanding any other provision hereof, Tenant shall have no right
to make (and Landlord shall have the absolute right to refuse consent to) any
assignment of this Lease or sublease of any portion of the Premises if at the
time of either Xxxxxx's notice of the proposed assignment or sublease or the
proposed commencement date thereof, there shall exist any uncured default of
Tenant or matter which will become a default of Tenant with passage of time
unless cured; or if the proposed assignee or sublessee is a governmental agency;
(d) is incompatible with the character of occupancy of the Building; or (e)
would subject the Premises to a use which would; involve a violation of Section
1.2.
9.6 Upon any request to assign or sublet, Tenant will pay to Landlord the
Assignment/Subletting Fee regardless of whether Landlord shall consent to,
refuse consent, or determine that Xxxxxxxx's consent is not required for, such
assignment, pledge or sublease. Any purported sale, assignment, mortgage,
transfer of this Lease of subletting which does not comply with the provisions
of this Article 9 shall be void.
9.7
See Addendum.
10. INDEMNIFICATION.
None of the Landlord Entities shall be liable and Tenant hereby waives all
claims against them for any damage to any property or any injury to any person
in or about the Premises by or from any cause whatsoever (including without
limiting the foregoing, rain or water leakage of any character from the roof,
windows, walls, basement, pipes, plumbing works or appliances, the Premises not
being in good condition or repair, gas, fire, oil electricity or
5
theft), except to the extent caused by or arising from the negligence or willful
misconduct of Landlord or its agents, employees or contractors. Tenant shall
protect, indemnify and hold the Landlord Entities harmless from and against any
and all loss, claims, liability or costs (including court costs and attorney's
fees) incurred by reason of (a) any damage to any property (including but not
limited to property of any Landlord Entity) or any injury (including but not
limited to death) to any person occurring in, on or about the Premises to the
extent that such injury or damage shall be caused by or arise from any actual or
alleged act, neglect, fault, or omission by or of Tenant, its agents, servants,
employees, invitees, or visitors to meet any standards imposed by any duty with
respect to the injury or damage; (b) the conduct or management of any work or
thing whatsoever done by the Tenant in or about the Premises or from
transactions of the Tenant concerning the Premises; (c) Tenant's failure to
comply with any and all governmental laws, ordinances and regulations applicable
to the condition or use of the Premises or its occupancy; or (d) any breach or
default on the part of Tenant in the performance of any covenant or agreement on
the part of the Tenant to be performed pursuant to this Lease. The provisions of
this Article shall survive the termination of this Lease with respect to any
claims or liability accruing prior to such termination.
See Addendum.
11. INSURANCE
11.1 Tenant shall keep in force throughout the Term: (a) a Commercial
General Liability insurance policy or policies to protect the Landlord Entities
against any liability to the public or to any invitee of Tenant or a Landlord
Entity incidental to the use of or resulting from any accident occurring in or
upon the Premises with a limit of not less than $ 1,000,000 per occurrence and
not less than $2,000,000 in the annual aggregate, covering bodily injury and
property damage liability and $1,000,000 products/completed operations
aggregate; (b) Business Auto Liability covering owned, non-owned and hired
vehicles with a limit of not less than $1,000,000 per accident; (c) insurance
protecting against liability under Worker's Compensation Laws with limits at
least as required by statute; (d) Employers Liability with limits of $1,000,000
each accident, $1,000,000 disease policy limit, $1,000,000 disease--each
employee; (e) All Risk or Special Form coverage protecting Tenant against loss
of or damage to tenant's alterations, additions, improvements, carpeting, floor
coverings, panelings, decorations, fixtures, inventory and other business
personal property situated in or about the Premises to the full replacement
value of the property so insured, (f) Business Interruption Insurance for 100%
of the 12 month actual loss sustained, and, (d) Excess Liability in the amount
of $5,000,000.
See Addendum.
11.2 Each of the aforesaid policies shall (a) be provided at Tenant's
expense; (b) name the Landlord and the building management company, if any, as
additional insureds; (c) be issued by an insurance company with a minimum Best's
rating of "A:VII" during the Term; and (d) provide that said insurance shall not
be cancelled unless thirty (30) days prior written notice (ten days for
non-payment of premium) shall have been given to Landlord; and said policy or
policies or certificates thereof shall be delivered to Landlord by Tenant upon
the Commencement Date and at lease thirty (30) days prior to each renewal of
said insurance.
11.3 Whenever Tenant shall undertake any alterations, additions or
improvements in, to or about the Premises ("Work") the aforesaid insurance
protection must extend to and include injuries to persons and damage to property
arising in connection with such Work, without limitation including liability
under any applicable structural work act, and such other insurance as Landlord
shall require; and the policies of or certificates evidencing such insurance
must be delivered to Landlord prior to the commencement of any such Work.
See Addendum.
12. WAIVER OF SUBROGATION.
So long as their respective insurers so permit, Tenant and Landlord hereby
mutually waive their respective rights of recovery against each other for any
loss insured by fire, extended coverage, All Risks or other insurance now or
hereafter existing for the benefit of the respective party but only to the
extent of the net insurance proceeds payable under such policies. Each party
shall obtain any special endorsements required by their insurer to evidence
compliance with the aforementioned waiver.
13. SERVICES AND UTILITIES.
Tenant shall pay for all water, gas, heat, light, power, telephone, sewer,
sprinkler system charges and other utilities and services used on or from the
Premises, including without limitation, the cost of any central station
signaling system installed in the Premises together with any taxes, penalties
(unless due to Landlord's delay) and surcharges or the like pertaining thereto
and any maintenance charges for utilities. Any such charges paid by Xxxxxxxx and
assessed against Tenant Shall be payable to Landlord within 30 days after
receipt of an invoice and shall be additional rent hereunder. Except as set
forth in Section 7.3 Landlord shall in no event be liable for any interruption
or failure of utility services on or to the Premises.
See Addendum.
14. HOLDING OVER.
Tenant shall pay Landlord for each day tenant retains possession of the Premises
or part of them after termination of this Lease by lapse of time or otherwise at
the rate ("Holdover Rate") which shall be 150% of the amount of the Annual Rent
for the last period prior to the date of such termination plus all
6
additional rent due under this Lease and If Tenant holds over without XxxxXxxx's
consent also pay all damages sustained by LandLord by reason of such retention.
If XxxxXxxx gives notice to Tenant of LandLord's election to that effect, such
holding over shall constitute renewal of this Lease for a period from month to
month at the Holdover Rate, but if the Landlord does not so elect, no such
renewal shall result notwithstanding acceptance by Landlord of any sums due
hereunder after such termination; and instead, a tenancy at sufferance at the
Holdover Rate shall be deemed to have been created. In any event, no provision
of this Article 14 shall be deemed to waive Landlord's right of reentry or any
other right under this Lease or at Law.
15. SUBORDINATION.
This Lease shall be subject and subordinate at all times to ground leases and to
the lien of any mortgages or deeds of trust now or hereafter placed on, against
or affecting the Building, Xxxxxxxx's interest or estate in the Building, or any
ground or underlying lease; provided, however, that if the lessor, mortgage,
trustee, or holder of any such mortgage or deed of trust elects to have Tenant's
interest in this Lease be superior to any such instrument, then, by notice to
Tenant, this Lease shall be deemed superior, whether this Lease was executed
before or after said instrument. Notwithstanding the foregoing, Tenant covenants
and agrees to execute and deliver upon demand such further instruments
evidencing such subordination or superiority of this Lease as any be required by
Landlord.
See Addendum
16. REENTRY BY LANDLORD.
16.1 Landlord reserves and shall at all times have the right to re-enter
the Premises to inspect the same, to show said Premises to prospective
purchasers, mortgagees or tenants, to conduct environmental audits and/or
inspections and to alter, improve or repair the Premises and any portion of the
Building, without abatement of rent,* except as set forth in Section 7.3 and may
for that purpose erect, use and maintain scaffolding, pipes, conduits and other
necessary structures and open any wall, ceiling or floor in and through the
Building and Premises where reasonably required by the character of the work to
be performed, provided entrance to the Premises shall not be blocked thereby,
and further provided that the business of Tenant shall not be interfered with
unreasonably.
See Addendum
16.2 Tenant hereby waives any claim for damages for any injury or
inconvenience to or interference with Xxxxxx's business, any loss of occupancy
or quiet enjoyment of the Premises, and any other loss occasioned by any action
of Landlord authorized by this Article 16. except to the extent caused by or
arising from the negligence or willful misconduct of Landlord or its agents,
employees or contractors. Xxxxxx agrees to reimburse Landlord, on demand, as
additional rent, for any expenses which Landlord may incur in thus effecting
compliance with Tenant's obligations under this Lease.
16.3
17. DEFAULT.
17.1 Except as otherwise provided in Article 19, the following events shall
be deemed to be Events of Default under this Lease:
17.1.1 Tenant shall fail to pay when due any sum of money becoming due
to be paid to Landlord under this Lease, whether such sum be any installment of
the rent reserved by this Lease, any other amount treated as additional rent
under this Lease, or any other payment or reimbursement to Landlord required by
this Lease, whether or not treated as additional rent under this Lease, and such
failure shall continue for a period of five days after written notice that such
payment was not made when due.
17.1.2 Tenant shall fail to comply with any term, provision or covenant
of this Lease which is not provided for in another Section of this Article and
shall not cure such failure within 30 days (forthwith, if the failure involves a
hazardous condition caused by Tenant or its employees, agents, contractors or
invitees) after written notice of such failure to Tenant.
* except as set forth in section 7.3
7
17.1.3 Tenant shall fail to vacate the Premises immediately upon
termination of this Lease, by lapse of time or otherwise, or upon termination of
Tenant's right to possession only.
17.1.4 Tenant shall become insolvent, admit in writing its inability to
pay its debts generally as they become due, file a petition in bankruptcy or a
petition to take advantage of any insolvency statute, make an assignment for the
benefit of creditors, make a transfer in fraud of creditors, apply for or
consent to the appointment of a receiver of itself or of the whole or any
substantial part of its property, or file a petition or answer seeking
reorganization or arrangement under the federal bankruptcy laws, as now in
effect or hereafter amended, or any other applicable law or statute of the
United States or any state thereof.
17.1.5 A court of competent jurisdiction shall enter an order, judgment
or decree adjudicating Tenant bankrupt, or appointing a receiver of Tenant, or
of the whole or any substantial part of its property, without the consent of
Tenant, or approving a petition filed against Tenant seeking reorganization or
arrangement or Tenant under the bankruptcy laws of the United States, as now in
effect or hereafter amended, or any state thereof, and such order, judgment or
decree shall not be vacated or set aside or stayed within thirty(30) days from
the date of entry thereof.
18.REMEDIES.
18.1 Upon the occurrence of any of such events of default described in
Article 18.1 or elsewhere in this Lease, Landlord shall have the following
rights and remedies in addition to all other rights or remedies available to
Landlord in law or equity:
18.1.1 The rights and remedies provided by California Civil Code Section
1951.2, including, but not limited to, the right to terminate Tenants's right to
possession of the Premises and to recover the worth at the time of award of the
amount by which the unpaid rent for the balance of the Term after the time of
award exceeds the amount of rental loss for the same period that the Tenant
proves could be reasonably avoided, as computed pursuant to subsection (b) of
said Section 1951.2;
18.1.2 The rights and remedies provided by California Civil Code Section
1951.4, that allows Landlord to continue this Lease in effect and to enforce all
of its rights and remedies under this Lease, including the right to recover rent
as it becomes due, for so long as Landlord does not terminate Xxxxxx's right to
possession; provided, however, if Landlord elects to exercise its remedies
described in this subsection and Landlord does not terminate this Lease, and if
Tenant requests Xxxxxxxx's consent to an assignment of this Lease or a sublease
of the Premises at such time as Tenant is in default, Landlord shall not
unreasonably withhold its consent to such assignment or sublease. Acts of
maintenance or preservation, efforts to relet the Premises or the appointment of
a receiver upon Xxxxxxxx's initiative to protect its interest under this Lease
shall not constitute a termination of Tenants's right to possession;
18.1.3 The right to terminate this Lease by giving notice to Tenant in
accordance with applicable law;
18.1.4 The right and power, as attorney-in-fact for Tenant, to enter the
Premises and remove therefrom all persons and property, to store such property
in a public warehouse or elsewhere at the cost of and for the account of Tenant,
and to sell such property and apply the proceeds therefrom pursuant to
applicable California law. Xxxxxxxx, as attorney-in-fact for Tenant, may from
time to time sublet the Premises or any part thereof for such term or terms
(which may extend beyond the Term) and at such rent and such other terms as
Landlord in its sole discretion may deem advisable, with the right to make
alterations and repairs to the Premises. Upon each such subletting, (i) Tenant
shall be immediately liable for payment to Landlord of, in addition to
indebtedness other than rent due hereunder, the cost of such subletting and such
alterations and repairs incurred by Landlord and the amount, if any, by which
the rent for the period of such subletting (to the extent such period does not
exceed the Term) exceeds the amount to be paid as rent for the Premises for such
period, or (ii) at the option of Landlord, rents received from such subletting
shall be applied, first, to payment of any indebtedness other than rent due
hereunder from Tenant to Landlord; second, to the payment of any costs of such
subletting and of such alterations and repairs; third, to payment of rent due
and unpaid hereunder; and the residue, if any, shall be held by Landlord and
applied in payment of future rent as the same become due hereunder. If Xxxxxx
has been credited with any rent to be received by such subletting under clause
(i) and such rent shall not be promptly paid to Landlord by the subtenant(s), or
if such rentals received from such subletting under clause (ii) during any month
are less than those to be paid during that month by Tenant hereunder, Tenant
shall pay any such deficiency to Landlord. Such deficiency shall be calculated
and paid monthly. For all purposes set forth in this subparagraph, Landlord is
hereby irrevocably appointed attorney-in-fact for Xxxxxx, with power of
substitution. No taking of possession of the Premises by Landlord, as
attorney-in-fact for Tenant, shall be construed as an election on its part to
terminate this Lease unless a written notice of such intention is given to
Tenant. Notwithstanding any such subletting without termination, Landlord may at
any time thereafter elect to terminate this Lease for such previous breach; and
8
18.1.5 The right to have a receiver appointed for Tenant upon application
by Landlord, to take possession of the Premises and to apply any rental
collected from the Premises and to exercise all other rights and remedies
available.
18.1.6 For purpose of this Article 18: "worth at the time of award" shall
be computed by allowing interest at a per annum rate of ten percent and rent
with respect to each month shall be deemed to be a monthly rental arrived at by
adding (i) one twelfth of the Annual Rent, plus (iii) one twelfth of any items
of additional rent paid or payable by Tenant hereunder during the 12 consecutive
month period prior to the month in which Tenant's default occurs or one twelfth
of the annualized amount of the additional rent paid or payable and the last day
of the calender month prior to the month in which such default occurs, if such
default occurs during the first 12 calender months of the Term).
18.2 See Addendum
18.3 Pursuit of any of the foregoing remedies shall not preclude pursuit of
any of other remedies provided in this Lease or any other remedies provided by
law (all such remedies being cumulative), nor shall pursuit of any remedy
provided in this Lease constitute a forfeiture or waiver of any rent due to
Landlord under this Lease or of any damages accruing to Landlord by reason of
the violation of any of the terms, provisions and covenants contained in this
Lease.
18.4 No act or thing done by Landlord or its agents during the Term shall
be deemed a termination of this Lease or an acceptance of the surrender of the
Premises, and no agreement to terminate this Lease or accept a surrender of said
Premises shall be valid, unless in writing signed by Landlord. No waiver by
Landlord of any violation or breach of any of the terms, provisions and
covenants contained in this Lease shall be deemed or construed to constitute a
waiver of any other violation or breach of any of the terms, provisions and
covenants contained in this Lease. Xxxxxxxx's acceptance of the payment of
rental or other payments after the occurrence of an Event of Default shall not
be construed as a waiver of such Default, unless Landlord so notifies Tenant in
writing. Forbearance by Landlord in enforcing one or more of the remedies
provided in this Lease upon an Event of Default shall not be deemed or construed
to constitute a waiver of such Default or of Landlord's right to enforce any
such remedies with respect to such Default or any subsequent Default.
19. TENANTS BANKRUPTCY OR INSOLVENCY
19.1.1
9
20. QUIET ENJOYMENT.
Landlord represents and warrants that it has full right and authority to enter
into this Lease and that Tenant, while paying the rental and performing its
other covenants and agreements contained in this Lease, shall peaceably and
quietly have, hold and enjoy the Premises for the Term without hindrance or
molestation from Landlord subject to the terms and provisions of this Lease.
Landlord shall not be liable for any interference or disturbance by other
tenants or third persons, nor shall Tenant be released from any of the
obligations of this Lease because of such interference or disturbance. See
Section 1.3 and Section 2.1.1.
21. DAMAGE BY FIRE, ETC.
21.1 Landlord shall maintain all insurance policies deemed by Landlord to
be reasonably necessary or desirable and relating in any manner to protection,
preservation or operation of the Premises, including by not limited to standard
fire and extended coverage insurance covering the Premises in an amount not less
than ninety percent (90%) of the replacement cost thereof insuring against the
perils of fire and lightning and including extended coverage or, at Landlord's
option, all risk coverage and, if Landlord so elects, earthquake, flood and wind
coverages and Tenant Shall pay, as additional rent, the cost of such policies
upon demand by Landlord. Such insurance shall be for the sole benefit of
Landlord and under its sole control. Tenant shall not take out separate
insurance concurrent in form or contributing in the event of loss with that
required to be maintained by Landlord hereunder unless Landlord is included as a
loss payee thereon. Tenant shall immediately notify Landlord whenever any such
separate insurance is taken out and shall promptly deliver to Landlord the
policy or policies of such insurance.
21.2 In the event the Premises or the Building are damaged by fire or other
cause and in Landlord's reasonable estimation such damage can be materially
restored within 365 days, Landlord shall forthwith repair the same and this
Lease shall remain in full force and effect, except that Tenant shall be
entitled to a proportionate abatement in rent from the date of such damage. Such
abatement of rent shall be made pro rata in accordance with the extent to which
the damage and the making of such repairs shall interfere with the use and
occupancy by Tenant of the Premises from time to time. Within forty-five (45)
days from the date of such damage, Landlord shall notify Tenant, in writing, of
Landlord's reasonable estimation of the length of time within which material
restoration can be made, and Landlord's determination shall be binding on
Tenant. For purposes of this Lease, the Building or Premises shall be deemed
"materially restored" if they are in substantially the same condition as existed
at the time of delivery of the Premises to Tenant.
21.3 If such repairs cannot, in Landlord's reasonable estimation, be made
within 365 days, Landlord and Tenant shall each have the option of giving the
other, at any time within sixty (60) days after such damage, notice terminating
this Lease as of the date of such damage. In the event of the giving of such
notice, this Lease shall expire and all interest of the Tenant in the Premises
shall terminate as of the date of such damage as if such date had been
originally fixed in this Lease for the expiration of the Term. In the event that
neither Landlord nor Tenant exercises its option to terminate this Lease, then
Landlord shall repair or restore such damage, this Lease
10
continuing in full force and effect, and the rent he
See Addendum.
21.4 Landlord shall not be required to repair or replace any damage or loss
by or from fire or other cause to any panelings, decorations, partitions,
additions, railings, ceilings, floor coverings, office fixtures or any other
property or improvements installed on the Premises by or belonging to Tenant.
Any insurance which may be carried by Landlord or Tenant against loss or damage
to the Building or Premises shall be for the sole benefit of the party carrying
such insurance and under its sole control.
21.5 In the event that Landlord should fail to complete such repairs and
material restoration within sixty (60) days after the date estimated by Landlord
therefor as extended by this Section 21.5, Tenant may at its option and as its
sole remedy terminate this Lease by delivering written notice to Landlord,
within fifteen (15) days after the expiration of said period of time, whereupon
the Lease shall end on the date of such notice or such later date the fixed in
such notice as if the date of such notice was the date originally fixed in this
Lease for the expiration of the Term; provided, however, that if construction is
delayed because of changes, deletions or additions in construction requested by
Tenant, strikes, lockouts, casualties, Acts of God war, material or labor
shortages, government regulation or control or other causes beyond the
reasonable control of Landlord, the period for restoration, repair or rebuilding
shall be extended for the amount of time Landlord is so delayed.
21.6 See Addendum.
21.7 In the event of any damage or destruction to the Building or Premises
by any peril covered by the provisions of this Article 21, it shall be Tenant's
responsibility to properly secure the Premises and upon notice from Landlord to
remove forthwith, at its sole cost and expense, such portion of all of the
property belonging to Tenant or its licensees from such portion or all of the
Building or Premises as Landlord shall request.
21.8 The provisions of this Lease, including this Article, constitute an
express agreement between Landlord and Tenant with respect to any and all damage
to, or destruction of, all or part of the Premises or the Building and any
statute or regulation of the State of California, including, without
limitation, Section 1932(2) and 1934(4) of the California Civil Code, with
respect to any rights or obligations concerning damage or destruction in the
absence of an express agreement between the parties, and any other statute or
regulation, now or hereafter in effect, shall have no application to the Lease
or any damage or destruction to all or any part to the Premises or the Building.
22. EMINENT DOMAIN.
If all or any substantial part of the Premises shall be taken or appropriated by
any public or quasi-public authority under the power of eminent domain, or
conveyance in lieu of such appropriation, either party to this Lease shall have
the right, at its option, of giving the other, at any time within thirty (30)
days after such taking, notice terminating this Lease, except that Tenant may
only terminate this Lease by reason of taking or appropriation, if such taking
or appropriation shall be so substantial as to materially interfere with
Xxxxxx's use and occupancy of the Premises. If neither party to this Lease shall
so elect to terminate this Lease, the rental thereafter to be paid shall be
adjusted on a fair and equitable basis under the circumstances. Landlord shall
be entitled to any and all income, rent, award, or any interest whatsoever in or
upon any such sum, which may be paid or made in connection with any such public
or quasi-public use or purpose, and Tenant hereby assigns to Landlord any
interest if may have in or claim to all or any part of such sums, other than any
separate award which may be made with respect to Tenant's trade fixtures and the
value of improvements installed and paid for by Tenant and moving relocation and
business interruption losses & expenses; Tenant shall make no claim for the
value of any unexpired Term.
23. SALE BY LANDLORD.
In event of a sale or conveyance by Landlord of the Building, the same shall
operate to release Landlord from any liability accruing thereafter upon any of
the covenants or conditions, expressed or implied, contained in this Lease in
favor of
11
Tenant, and in such event Xxxxxx agrees to look solely to responsibility of the
successor in interest of Landlord in and to this Lease. Except as set forth in
this Article 23, this Lease shall not be affected by any such sale and Xxxxxx
agrees to attorn to the purchaser of assignee, provided that Xxxxxx's right to
possession continues unabated and Xxxxxx's other rights under this Lease
continue undiminished, subject to the terms and conditions of this Lease. If any
security has been given by Xxxxxx to secure the faithful performance of any of
the covenants of this Lease, Landlord may transfer of deliver said security,
as such, to Xxxxxxxx's successor in interest and thereupon Landlord shall be
discharged from any further liability with regard to said security.
24. ESTOPPEL CERTIFICATES.
Within ten (10) days following any written request which Landlord may make from
time to time, Tenant shall execute and deliver to Landlord or mortgagee or
prospective mortgagee a sworn statement certifying: (a) the date of commencement
of this Lease; (b) the fact that this Lease is unmodified and in full force and
effect (or, if there have been modifications to this Lease, that this Lease is
in full force and effect, as modified, and stating the date and nature of such
modifications); (c) the date to which the rent and other sums payable under this
Lease have been paid; (d) the fact that there are no current defaults under this
Lease by either Landlord or Tenant except as specified in Tenant's statement;
and (e) such other matters as may be reasonably request by Landlord. Landlord
and Tenant intend that any statement delivered pursuant to this Article 24 may
be relied upon by any mortgagee, beneficiary or purchaser and Tenant shall be
liable for all loss, cost or expense resulting from the failure of any sale or
funding of any loan caused by any material misstatement contained in such
estoppel certificate. Tenant irrevocably agrees that is Xxxxxx fails to execute
and deliver such certificate within such ten (10) day period Landlord or
Landlord's beneficiary or agent may execute and deliver such certificate on
Tenant's behalf, and such certificate shall be fully binding on Tenant.
See Addendum
25. SURRENDER OF PREMISES.
See Addendum
25.1 In the event of Xxxxxx's failure to arrange such joint inspection to
be held prior to vacating the Premises, Landlord's inspection at or after
Xxxxxx's vacating the Premises shall be conclusively deemed correct for purposes
of determining Tenant's responsibility for repairs and restoration.
25.2 At the end of the Term or any renewal of the Term or any renewal of
the Term of other sooner termination of this Lease, Tenant will peaceably
deliver up to Landlord Possession of the Premises, together with all
improvements or additions upon or belonging to the same, by whomsoever made, in
the same conditions first installed, broom clean and free of all debris,
excepting only condemnation or Xxxxxxxx's failure to make repairs required by it
to make, ordinary wear and tear and damage by fire or other casualty. Tenant
may, and at Xxxxxxxx's request shall, at tenant's sole cost, remove upon
termination of this Lease, any and all furniture, furnishings, movable
partitions of less than full height from floor to ceiling, trade fixtures and
other property installed by Tenant, title to which shall not be in or pass
automatically to Landlord upon such termination, repairing all damage caused by
such removal. Property not so removed shall, unless requested to the removed, be
deemed abandoned by the Tenant and title to the same shall thereupon pass to
Landlord under this Lease under this Lease as by a bill of sale. All other
alterations, additions and improvements in, on or to the Premises shall be dealt
with and disposed of as provided in Article 6. See Section 6.4
25.3 All obligations of Tenant under this Lease not fully performed as of
the expiration or earlier termination of the Term shall survive the expiration
or earlier termination of the Term. In the event that Xxxxxx's failure to
perform prevents Landlord from releasing the Premises, Tenant shall continue to
pay rent pursuant to the provisions of Article 14 until such performance is
complete.
See Addendum
26. NOTICES.
Any notice or document required or permitted to be delivered under this Lease
shall be addressed to the intended recipient, shall be transmitted personally,
by fully prepaid registered or certified United States Mail return receipt
request, or by reputable independent contract delivery service furnishing a
written record of attempted or actual delivery, and shall be deemed to be
delivered when tendered for delivery to the addressee at its address set forth
on the Reference Page, or at such other address as it has then last specified by
written notice delivered in accordance with this Article 26, or if to Tenant at
either its aforesaid address of its last known registered office or home of a
general partner or individual owner, whether or not actually accepted or
received by the addressee.
12
27. TAXES PAYABLE BY TENANT.
28. DEFINED TERMS AND HEADINGS.
The Article headings shown in this Lease are for convenience of reference and
shall in no way define, increase, limit or describe the scope or intent of any
provision of this Lease. Any indemnification or insurance of Landlord shall
apply to and inure to the benefit of all the following "Landlord Entities",
being Landlord, Landlord's investment manager, and the trustees, board of
directors, officers, general partners, beneficiaries, stockholders, employees
and agents of each of them. Any option granted to Landlord shall also include or
to be exercisable by Xxxxxxxx's trustee, beneficiary, agents and employees, as
the case may be, provided such individual is designated in writing by Landlord.
In any case where this Lease is signed by more than one person, the obligations
under this Lease shall be joint and several. The terms "Tenant" and "Landlord"
or any pronoun used in place thereof shall indicate and include the masculine or
feminine, the singular or plural number, individuals, firms or corporations, and
each of their respective successors, executors, administrators and permitted
assigns, according to the context hereof. The term "rentable area" shall mean
the rentable area of the Premises or the Building as calculated by the Landlord
on the basis of the plans and specifications of the Building including a
proportionate share of any common areas. Tenant hereby accepts and agrees to be
bound by the figures for the rentable square footage of the Premises shown on
the Reference Page.
See Addendum
29. TENANTS AUTHORITY.
If Tenant signs as a corporation each of the persons executing this Lease on
behalf of Tenant represents and warrants that Tenant has been and is qualified
to do business in the state in which the Building is located, that the
corporation has full right and authority to enter into this Lease, and that
all persons signing on behalf of the corporation were authorized to do so by
appropriate corporate actions. If Tenant signs as a partnership, trust or other
legal entity, each of the persons executing this Lease on behalf of Tenant
represents and warrants that Tenant has compiled with all applicable laws, rules
and governmental regulations relative to its right to do business in the state
and that such entity on behalf of the Tenant was authorized to do so by any and
all appropriate partnership, trust or other actions. Xxxxxx agrees to furnish
promptly upon request a corporate resolution, proof of due authorization by
partners, or other appropriate documentation evidencing the due authorization of
Tenant to enter into this Lease.
See Addendum
30. COMMISSIONS.
Each of the parties represents and warrants to the other that it has not dealt
with any broker or finder in connection with this Lease, except as described on
the Reference Page. Landlord shall pay the Real Estate Brokers described on the
Reference Page a commission pursuant to separate agreement.
13
31. TIME AND APPLICABLE LAW.
Time is of the essence of this Lease and all of its provisions. This Lease shall
in all respects be governed by the laws of the state in which the Building is
located, without reference to the choice of law and conflicts of laws rules and
principles of such state.
32. SUCCESSORS AND ASSIGNS
Subject to the provisions of Article 9, the terms, covenants and conditions
contained in this Lease shall be binding upon and inure to the benefit of the
heirs, successors, executors, administrators and assigns of the parties to this
Lease.
33. ENTIRE AGREEMENT.
This Lease, together with its exhibits, contains all agreements of the parties
to this Lease and supersedes any previous negotiations. There have been no
representations made by the Landlord or understandings made between the parties
other than those set forth in this Lease and its exhibits. This Lease may not be
modified except by a written instrument duly executed by the parties to this
Lease.
34. EXAMINATION NOT OPTION.
Submission of this Lease shall not be deemed to be a reservation of the
Premises. Landlord shall not be bound by this Lease until it has received a copy
of this Lease duly executed by Xxxxxx and had delivered to Tenant a copy of this
Lease duly executed by Landlord, and until such delivery Landlord reserves the
right to exhibit and lease the Premises to other prospective tenants.
Notwithstanding anything contained in this Lease to the contrary, Landlord may
withhold delivery of possession of the Premises from Tenant until such time as
Xxxxxx has paid to Landlord, the first month's rent as set forth in Article 3
and any sum owed pursuant to this Lease.
35. RECORDATION.
Tenant shall not record or register this Lease or a short form memorandum hereof
without the prior written consent of Landlord, and then shall pay all charges
and taxes incident such recording or registration.
36. LIMITATION OF LANDLORD'S LIABILITY.
Redress for any claim against Landlord under this Lease shall be limited to and
enforceable only against and to the extent of Xxxxxxxx's interest in the
Building. The obligations of Landlord under this Lease are not intended to and
shall not be personally binding on, nor shall any resort be had to the private
properties of, any of its trustees or board of directors and officers, as the
case may be, its investment manager, the general partners thereof, or any
beneficiaries, stockholders, employees, or agents of Landlord or the investment
manager.
See Addendum
LANDLORD: TENANT:
CalWest Industrial Properties, LLC,
Invitrogen Corporation,
--------------------------------------- -----------------------------------
a California limited liability company a Delaware corporation
BY: RREEF America, L.L.C., a
--------------------------------------- -----------------------------------
Delaware limited liability company
By: /s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
------------------------------------ --------------------------------
Title: VP - authorized Representative Title: Vice President
--------------------------------- -----------------------------
Dated: 6/11, 2001 Dated: June 6, 2001
------ --- -------- ---
By: /s/ [ILLEGIBLE]
--------------------------------
Title: Vice President, Gen. Counsel
-----------------------------
& Secretary
-----------------------------
14
EXHIBIT A
attached to and made a part of Lease bearing the
Lease Reference Date of MAY 31, 2001 between
CALWEST INDUSTRIAL PROPERTIES, LLC, as Landlord and
INVITROGEN CORPORATION, as Tenant
PREMISES
Exhibit A is intended only to show the general layout of the Premises as of the
beginning of the Term of this Lease. It does not in any way supersede any of
Landlord's rights set forth in Section 16.1 with respect to arrangements and/or
locations of public parts of the Building and changes in such arrangements
and/or locations. It is not to be scaled; any measurements or distances shown
should be taken as approximate.
EXHIBIT A
[GRAPHIC]
EXHIBIT "B"
INITIAL ALTERATIONS BY TENANT
Tenant shall construct its tenant improvements to the Premises, in
accordance with this EXHIBIT B, together with applicable provisions of the
Lease.
1. TENANT'S PLAN APPROVAL. Tenant shall cause detailed plans and
specifications (the "PLANS") to be prepared and delivered to Landlord. The Plans
shall reflect the work to be performed within the Premises by Tenant to suitably
prepare the Premises for Tenant's use (the "TENANT'S WORK"). Landlord shall,
within seven (7) days (which shall be deemed a reasonable amount of time)
following its receipt of the Plans, either approve such Plans or provide Tenant
with the reasons that Landlord is withholding such approval. Landlord shall not
unreasonably withhold or delay its approval. If Landlord does not approve the
Plans, Tenant shall cause the Plans to be revised, consistent with Landlord's
comments, and then resubmit the Plans to Landlord for review. On such subsequent
review, Xxxxxxxx's review shall be limited to those aspects of the Plans revised
or added in response to Xxxxxxxx's prior review. Tenant shall undertake no work
until Xxxxxxxx has finally approved the Plans.
If the parties do not agree on the Plans within thirty (30) days after the
Plans are submitted to Landlord, the approval, conditional approval or
disapproval of the Plans shall be determined in the following manner: Landlord
and Tenant shall each appoint one (1) arbitrator who shall by profession be a
qualified licensed architect specializing in industrial buildings in Southern
California who shall have been active in such profession over the ten (10) year
period ending on the expiration of such thirty (30) day period. Each arbitrator
shall be appointed within fifteen (15) days after the expiration of such thirty
(30) day period. If within thirty (30) days after the arbitrators are appointed,
the arbitrators are unable to agree upon whether the Plans should be approved,
then the two (2) arbitrators so appointed shall, within fifteen (15) days after
expiration of said thirty (30) day period, agree upon and appoint a third
arbitrator who shall be qualified under the same criteria set forth hereinabove
for qualification of the initial two (2) arbitrators and who shall render a
decision, within fifteen (15) days following his or her appointment, regarding
whether the Plans should be approved, conditionally approved or disapproved. The
decision of the third arbitrator shall be binding upon Landlord and Tenant. If
the two (2) arbitrators fail to agree upon and appoint a third arbitrator, the
matter shall be decided forthwith by the American Arbitration Association
pursuant to its Commercial Arbitration Rules. The cost of the arbitration shall
be paid equally by Landlord and Tenant. The arbitrators shall consider only the
following factors in determining whether or not to approve the Plans: whether
the alterations, additions or improvements contemplated by the Plans will: (w)
adversely affect or adversely impact the structural integrity of the Building,
including but not limited to the roof of the Building, (x) void or limit the
roof warranty currently existing for the Building, (y) adversely affect or
adversely impact the watertightness of the Building, including but not limited
to the roof of the Building or (z) violate the CC&Rs or any governmental laws,
ordinances or regulations. Notwithstanding the foregoing, the arbitrators shall
nonetheless approve the Plans if the arbitrators determine that Tenant has
adequately addressed in the Plans all of the criteria set forth in (w), (x), (y)
and (z) above.
It is contemplated that Tenant will make alterations, additions and
improvements to the Premises in order to address environment and safety aspects
and requirements in connection with Tenant's use of the Premises, including,
without limitation, laboratory exhaust hoods and other exhaust ventilation and
equipment requiring roof penetration, alterations to the Premises and facilities
within the Premises to address fire code compliance, life safety concerns,
product process containment and such other alterations to the Premises as are
required by applicable codes and regulations and/or deemed necessary or
appropriate in the judgment of professionals employed or retained by Tenant for
the purpose of determining appropriate facility design for employee safety and
compliance with applicable laws and regulations. Tenant shall have the right to
make such alterations, either as part of Tenant's Work or as an alteration,
addition or improvement pursuant to Section 6.1, and Landlord shall not
disapprove such alteration, addition or improvement, provided such alterations
comply with, or Tenant has adequately addressed, the
criteria set forth in clauses (w), (x), (y) and (z) above.
2. CONSTRUCTION OF TENANT IMPROVEMENTS BY TENANT'S CONTRACTOR.
Performance of the Tenant's Work shall strictly conform to the approved Plans
and any deviation will require Landlord's prior approval, except for minor
deviations that do not affect any structural components of the Building.
Following Landlord's approval of the Plans, Tenant shall cause Tenant's Work to
be completed in accordance with sound construction practices and in a manner
consistent with this EXHIBIT B. After the Plans for the Tenant's Work have been
approved by Landlord, Tenant, and the local governing agencies, Tenant shall
submit to Landlord the name, address, license number, evidence of insurance and
any other information required by Landlord of Tenant's proposed contractor(s)
("CONTRACTOR") for Landlord's review and approval. Landlord shall not
unreasonably withhold its consent. If Landlord deems, in Xxxxxxxx's reasonable
discretion, that Xxxxxx's proposed Contractor is unacceptable, Tenant shall
resubmit information on a replacement contractor until a mutually approved
Contractor is selected. Upon said selection, Tenant shall enter into a
construction contract with the Contractor which shall include a provision for
compliance with provisions of this EXHIBIT B of this lease applicable to the
construction of Tenant's Work. Violations of this EXHIBIT B of the Lease shall
constitute a default of this Lease if not corrected by Tenant and/or Tenant's
Contractor within three (3) days after notice, either written or oral, by
Landlord to Tenant; provided, however, if the nature of such violation is such
that more than three (3) days are reasonably required for its performance, then
Tenant shall not be in breach if performance is commenced within such three (3)
day period and thereafter diligently pursued to completion. Landlord shall have
the right to post notices of non-responsibility at prominent locations at the
Premises.
It shall be the responsibility of Tenant to enforce the following
requirements of Tenant's Contractor, and all subcontractors of Tenant's
Contractor, at every level:
2.1 Tenant's Contractor shall be responsible for the repair,
replacement and clean up of any damage by Contractor to the Building and the
Premises, including but not limited to access ways to the Premises, which may be
concurrently used by others.
2.2 All work shall be done in accordance with sound construction
practices and, as required, in compliance with specifications of a soils
engineer or consultant as approved by Landlord.
2.3 All trash, debris and surplus construction materials shall be
promptly removed from the Premises. All excess soil shall be removed from the
Premises within a reasonable amount of time, but, in any event, no later than
the completion of Tenant's Work.
2.4 Tenant's Contractor shall provide temporary utilities, portable
toilet facilities and potable drinking water as required for the completion of
Tenant's Work.
2.5 Noise shall be kept to a reasonable level at all times.
2.6 Tenant and Xxxxxx's Contractor are responsible for compliance with
all applicable codes and regulations of duly constituted authorities having
jurisdiction as far as the performance of the Tenant's Work is concerned and for
all applicable safety regulations established by the Landlord, OSHA or other
regulatory agencies. Prior to commencement of construction, Tenant shall submit
to Landlord evidence of insurance for Tenant's Contractor satisfactory to
Landlord.
2.7 Tenant shall be responsible for and shall obtain and record a
Notice of Completion promptly following completion of Tenant's Work.
2.8 Tenant shall provide to Landlord a copy of the fully executed
construction contract, including all addenda and a line item breakdown by trade
thereto, between Tenant and its Contractor for the Tenant's Work (the
"CONSTRUCTION CONTRACT").
2.9 All required permits and approvals, including but not limited to
Planning,
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Building, Fire, and Health department permits, must be obtained and all
necessary calculations, including, but not limited to, those required under
Title 24, must be submitted to the local governing agencies for all work to be
performed by Tenant or Tenant's Contractor in the Premises. Notwithstanding the
foregoing, Landlord shall deliver the Premises in compliance with Title 24.
2.10 Any modifications to the Building exterior shall be subject to
Landlord's prior approval. No romex wiring shall be allowed, nor shall water
lines be placed in slabs. All equipment placed upon the roof as a result of the
Tenant's Work, and all roof penetrations, shall be approved by Landlord prior to
the commencement of work.
2.11 Landlord, at Xxxxxxxx's reasonable discretion, may from time to
time establish such other rules and regulations for protection of property and
the general safety of occupants and invitees of the Premises. Such rules and
regulations shall apply to Tenant and Xxxxxx's Contractor as though established
upon the execution of this EXHIBIT B. Notwithstanding the foregoing, such rules
and regulations shall not conflict with the terms of this Lease.
2.13 Tenant shall provide to Landlord: (i) a complete set of "as
built" plans and specifications and (ii) copies of all construction warranties
and guarantees in connection with the construction of the Tenant's Work to the
extent obtained. Upon any termination of this Lease, Tenant will assign all
construction warranties and guarantees to Landlord.
3. NO LANDLORD LIABILITY. Landlord shall not be liable for any loss,
cost, damage or expense incurred or claimed by Tenant or any other person or
party on account of the construction or installation of the Tenant's Work or any
other person or party on account of the construction or installation of the
Tenant's Work or any other improvements to the Premises made by Tenant, except
to the extent of Landlord's negligence or willful misconduct. Tenant hereby
acknowledges and agrees that the compliance of the Tenant's Work, or other
alterations made to the Premises by Tenant and any plans therefore, with all
applicable governmental laws, codes and regulations shall be solely Tenant's
responsibility. Landlord assumes no liability or responsibility resulting from
the failure of the Tenant to comply with all applicable governmental laws, codes
and regulations or for any defect in any of the Tenant's Work or other
alteration to the Premises made by Tenant. Xxxxxx further agrees to indemnify,
defend and hold harmless Landlord from any loss, cost, damage or expense
incurred, claimed, asserted or arising in connection with any of Tenant's Work,
except to the extent of Xxxxxxxx's negligence or willful misconduct.
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Premises. Without limiting the generality of the foregoing, the
indemnifications shall also specifically cover costs in connection with
Hazardous Materials that migrate, flow, percolate, diffuse or in any way
move onto, under or off of the Premises after date of this Lease.
If, during the Term of this Lease, Xxxxxx discovers any Hazardous
Materials at the Premises which are not the result of acts or omissions of
Tenant or its employees, agents, contractors or invitees, Landlord shall
remediate such Hazardous Materials to a level as required by governmental
authorities.
Tenant shall not be required to comply with any Environmental Laws as
a result of a violation thereof by anyone other than Tenant, its agents,
contractors, invitees or employees. In connection with Tenant's permitted
use of the Premises, Tenant may use biological materials and Hazardous
Materials including but not limited to the following materials: Acrylamide,
Bis-Acrylamide, Chloroform, Dichloromethane, Formaldehyde, Hexamine Cobalt
III, Lead Solder, Nickel(II) Chloride Hexahydrate, Penicillin/Streptomycin
Sulfate, Potassium Bromate, Trichloroacetic Acid/Dichloromethane and Trypan
Blue (Landlord acknowledges that the foregoing is not an all inclusive
list), provided Tenant always handles, stores, uses and disposes of such
biological materials and Hazardous Materials in compliance with all
applicable Laws and Environmental Laws and never allows such biological
materials or Hazardous Materials to contaminate the Premises, the Building
and appurtenant land or allow the environment to become contaminated with
any biological materials or Hazardous Materials. The parties acknowledge
that biological materials may in some cases constitute a Hazardous Material
as defined in this Lease, and in such case, provisions of this Lease
relating to Hazardous Materials apply to any and all such Hazardous
Materials, including but not limited to biological materials, whether or
not such provision makes specific mention to biological materials.
Tenant shall provide Landlord with copies of any Hazardous Material
Inventories (as required by the San Diego County Department of
Environmental Health, Hazardous Materials Division) relating to any
Hazardous Materials to be used, kept or stored at or on the Premises. In
the event that San Diego County no longer requires Hazardous Material
Inventories, Xxxxxx agrees to continue to provided such an inventory to
Landlord in the same format and on the same conditions as provided
previously. Tenant shall promptly send to Landlord a copy of any notices
delivered to any government entities in connection with any release of
Hazardous Materials relating to or concerning the Premises. Information
contained on such Hazardous Materials Inventories shall be considered
confidential information, and in regards thereto, Xxxxxxxx agrees to comply
with the terms of the Confidentiality Agreement attached hereto as Exhibit
"D-2" and by this reference incorporated herein.
Any increase in the premiums for necessary insurance on the Premises
which arises from Tenant's use and/or storage of Hazardous Materials shall
be solely at Tenant's expense."
3. COVENANTS, CONDITIONS AND RESTRICTIONS: ROOF LEASE. Section 1.3 is
hereby added to the Lease and shall read as follows:
"Tenant accepts the Premises subject to: (i) the Third Amended and
Restated Declaration of Covenants, Conditions and Restrictions of Carlsbad
Research Center dated March 10, 1988 and recorded June 29, 1988 as Instrument
No. 88-313420 with the San Diego County Recorder as the same may be amended from
time to time (the 'CC&RS') and (ii) the existing Roof Lease dated as of
September 25, 2000 (the 'ROOF LEASE') with Edison Development Corporation
('EDISON'). Landlord shall not enter in any future roof leases concerning the
Premises. Pursuant to the Roof Lease, Edison has installed a solar photovoltaic
system (the 'SYSTEM') on the roof of the Building. RealEnergy, Inc.
('REALENERGY') leases the System from Edison and operates the System. Tenant
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agrees to use commercially reasonable efforts to place its roof equipment
in locations that will not interfere with the System and will not cast
shadows upon the System. Xxxxxxxx agrees to use reasonable efforts to
obtain the written agreement from Edison and RealEneregy that Tenant may go
onto the Roof of the Building without prior notification to, or consent
from, either Edison or RealEnergy; provided, however, Xxxxxx agrees to
notify RealEnergy prior to going onto the portion of the Roof occupied by
Edison for the System. Notwithstanding anything contained herein, if
Landlord fails to obtain such written agreement (and provide a copy to
Tenant) by June 30, 2001, Tenant shall have the right to terminate this
Lease by notifying Landlord on or before July 15, 2001, and, in such event,
both parties shall be relieved of any further liability hereunder. Any time
after the first three (3) years of the term of the Roof Lease, Landlord
agrees within five (5) days after notice from Tenant to notify Edison that
Landlord is terminating the Roof Lease pursuant to Section 16.3 thereof,
and Xxxxxxxx agrees to pay any termination fee in connection therewith."
4. EARLY OCCUPANCY; RENT. The following sentences are hereby added to the
end of Section 2.1.1:
"Except for the Roof Lease, Landlord shall deliver the Premises to
Tenant free of all tenancies; provided, however, Tenant acknowledges that
a month to month tenant ('XXXXXX MADE') currently occupies a portion of
the Premises at the north end of the Building. Notwithstanding anything
contained herein, if Landlord fails to provide early occupancy of the
Xxxxxx Made portion of the Premises to Tenant within ninety (90) days
after Xxxxxx has executed and delivered this Lease to Landlord along with
the first month's rent (the 'EARLY OCCUPANCY DATE'), then, for every day
after the Early Occupancy Date that Landlord so delays, Tenant shall be
entitled to one (1) day of free rent. Notwithstanding anything contained
herein, if Landlord fails to provide occupancy of the Premises to Tenant
by November 1, 2001, Tenant shall have the right to terminate this Lease
by notifying Landlord on or before November 15, 2001, and, in such event,
both parties shall be relieved of any further liability hereunder. Except
for the portion of the Premises currently occupied by Taylor Made, Tenant
shall be granted early occupancy of the Premises as of the mutual
execution of this Lease and delivery by Tenant of the first month's rent
for the purpose of constructing its tenant improvements. Tenant shall be
exclusively responsible for all utility costs during the construction of
the tenant improvements; however, such early occupancy period shall be on
a rent-free and expense-free basis. Until delivery of possession of the
portion of the Premises occupied by Taylor Made, Tenant may have access to
such portion of the Premises during normal business hours for purposes of
making inspections and measurements, provided that Tenant gives Landlord
at least twenty-four (24) hours notice and that Landlord accompanies
Tenant. Landlord agrees, at its cost, to repair any damage to the Premises
caused by Taylor Made."
5. OPTIONS TO EXTEND LEASE TERM. The following Section 2.3 is hereby
added to the Lease and shall read as follows:
"2.3.1 EXTENDED TERM. Subject to the earlier termination of this Lease
in accordance with the provisions of this Lease, Tenant shall have the
options (the 'OPTIONS') to renew and extend the Term of the Lease for two
(2) additional five (5) year periods (the 'EXTENDED TERM'). Any references
in this Lease to 'Term' shall include the Extended Term, where applicable.
Tenant shall notify Landlord of Tenant's intention to renew and extend by
notice delivered to Landlord no later than one hundred eighty (180) days
nor more than two hundred and seventy (270) days prior to the expiration of
the then applicable Term of the Lease.
2.3.2 ADJUSTMENT IN MONTHLY INSTALLMENT OF ANNUAL RENT. In the event
this Lease is renewed and extended on the basis of the foregoing, the Lease
shall continue to be governed by the terms and conditions hereof (except
that there shall be no further options besides the Options described
herein); provided,
3
however, that the Monthly Installment of Annual Rent shall be adjusted to
the then fair market rental value of the Premises as of the time of the
expiration of the then applicable Term of the Lease, for rental space with
a similar percentage of office space of the Premises and a similar number
of parking spaces per 1,000 square feet of space in the Building, and not
including any improvements made to portions of the Premises not usable for
office purposes. Such fair market rental value shall be determined by
agreement between the parties within thirty (30) days following delivery of
Tenant's notice of renewal and extension. However, if the parties cannot
reach such agreement within said thirty (30) day period, such fair market
rental value shall be determined in the following manner: Landlord and
Tenant shall each appoint one (1) arbitrator who shall by profession be a
qualified licensed real estate broker who shall have been active over the
five (5) year period ending on the date the applicable Option is exercised
in the leasing of industrial and commercial real property in San Diego
County. Each arbitrator shall be appointed within ten (10) days after the
expiration of the thirty (30) day mutual agreement period described
hereinabove. If within thirty (30) days after the arbitrators are
appointed, the arbitrators are unable to agree upon the fair market value,
then the two(2) arbitrators so appointed shall, within fifteen (15) days
after expiration of said thirty (30) day period, agree upon and appoint a
third arbitrator who shall be qualified under the same criteria set forth
hereinabove for qualification of the initial two arbitrators and who shall
render a decision regarding fair market rental value within fifteen (15)
days following his or her appointment. The decision of the third arbitrator
shall be binding upon Landlord and Tenant. If the two (2) arbitrators fail
to agree upon and appoint a third arbitrator, the matter shall be decided
forthwith by the American Arbitration Association pursuant to its
Commercial Arbitration Rules. The cost of the arbitration shall be paid
equally by Landlord and Tenant. The determination of fair market rental
value by the arbitrators under this Section 2.3.2 shall include
determinations for the increases to the Monthly Installment of Annual Rent
each year during the Extended Term.
2.3.3 LIMITATIONS. Tenant may not exercise either of the Options
during any period of time when an Event of Default is continuing. The
period of time within which an Option may be exercised shall not be
extended or enlarged by reason of Tenant's inability to exercise an Option
due to the occurrence of an Event of Default."
6. RENT. The following sentences are hereby added to the end of Section
3.1:
"The Monthly Installment of Annual Rent payable under the Lease shall
commence November 1, 2001 and thereafter shall be calculated and
increased as follows:
Subject to the rent abatement described in Section 2.1.1 above,
effective November 1, 2001 the Initial Monthly Installment of Annual
Rent shall be $116,925.76;
Subject to the rent abatement described in Section 2.1.1 above,
effective May 1, 2002 the Monthly Installment of Annual Rent shall be
$179,214.00; Commencing on November 1, 2002 the thereafter every
November 1st during the Term of the Lease the Monthly Installment of
Annual Rent shall be increased by three percent (3%).
The Annual Rent shall be correspondingly adjusted to conform with the
above described increases and/or abatement of Monthly Installment of Annual
Rent."
7. ADDITIONAL RENT. Section 3.3 is hereby added to the Lease and shall read
as follows:
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"All monetary obligations of Tenant under this Lease are deemed to be
rent."
8. TAXES. The following sentence is hereby added to the end of
Section 4.1:
"The term 'Taxes' shall also include any tax, fee, levy, assessment or
charge or any increase therein imposed by reason of events occurring during
the Term of this Lease, including but not limited to a change in the
ownership of the Premises; provided, however, the term 'Taxes' shall
exclude any tax or assessment arising out of more than two (2) sales or
changes in ownership of the Premises occurring during the first five (5)
years of the Term (except insofar as such tax or assessment relates to
Tenant's alterations or improvements to the Premises). The term 'Taxes'
shall not include documentary transfer taxes assessed in connection with a
sale or transfer by Landlord of the Premises."
9. ALTERATIONS. The following sentence is hereby added to the end of
Section 6.1:
"Landlord's consent shall not be required for Tenant to make
nonstructural alterations, additions or improvements which do not impact,
involve or affect the roof of the Building. Landlord shall not disapprove
alterations, additions or improvements affecting the structural components
or the Building or the roof of the Building unless Landlord reasonably
determines that such alterations, additions or improvements will: (i)
adversely affect or adversely impact the structural integrity of the
Building, including but not limited to the roof of the Building, (ii) void
or limit the roof warranty currently existing for the Building, (iii)
adversely affect or adversely impact the watertightness of the Building,
including but not limited to the roof of the Building or (iv) violate the
CC&Rs or any governmental laws, ordinances or regulations. Notwithstanding
the foregoing, Landlord shall approve any alterations, additions or
improvements affecting the structural components of the Building or the
roof of the Building if Landlord determines that Tenant has adequately
addressed the matters set forth in (i), (ii), (iii) and (iv) above."
10. ALTERATIONS: TENANT'S CONTRACTOR. The following sentences are hereby
added to the end of Section 6.2:
"Tenant shall use licensed and bonded contractor, subject to Landlord's
approval, which shall not be unreasonably withheld. Landlord shall have the
right to post notices of non-responsibility at prominent locations at the
Premises."
11. REMOVAL OF ALTERATIONS: TENANT'S PROPERTY. Section 6.4 is hereby
restated to read as follows:
"All alterations, additions and improvements in, on or to the Premises
made or installed by Tenant, including carpeting, shall be and remain the
property of Tenant during the Term but, except as set forth below, shall
become a part of the realty and belong to Landlord without compensation to
Tenant upon the expiration or sooner termination of the Term, at which time
title shall pass to Landlord under this Lease as by a bill of sale, unless
Landlord elects otherwise. Upon such election by Landlord, Tenant shall (on
or before the termination of the Term) upon demand by Landlord, at Tenant's
sole cost and expense, forthwith and with all due diligence remove any such
alterations, additions or improvements which are designated by Landlord to
be removed, provided that Landlord notified Tenant when it consented to
such alterations, additions or improvements that Landlord may require their
removal upon termination of this Lease, and provided further that during
the first or second Option period of the Extended Term, the cost of such
removal shall be split equally between the parties. Notwithstanding
anything to the contrary above, Tenant shall not be required to remove such
alterations, additions or improvements if this Lease is terminated by
Landlord pursuant to Section 21.3 below. In connection with such removal,
Tenant shall forthwith and with all due diligence, at its sole cost and
expense, repair and
5
restore the Premises to their original condition, ordinary wear and tear
and damage by fire or other casualty, condemnation, acts of God, or
Landlord's failure to make required repairs excepted. Any trade fixtures,
business equipment, inventory, signs, counters, movable partitions of less
than full height from floor to ceiling, shelving, furniture and other
removable personal property installed in or on the Premises by Tenant at
its expense ('TENANT'S PROPERTY'), shall remain the property of Tenant.
Xxxxxxxx agrees that Tenant shall have the right, at any time or from time
to time, to remove any and all of Tenant's Property, provided Tenant
repairs any damage caused to the Premises from such removal".
12. LANDLORD'S MAINTENANCE OBLIGATIONS. The first sentence of Section 7.1
is hereby deleted and replaced with the following sentences:
"Subject to the provisions of Sections 21 (Damage) and 22 (Eminent
Domain), and subject to reimbursement pursuant to Article 7, Landlord shall
keep in good order, condition and repair the foundations, exterior walls,
structural condition of interior bearing walls, exterior roof, fire
sprinkler system, fire alarm and/or smoke detection systems, fire hydrants,
parking lots, walkways, parkways, driveways, landscaping fences, signs and
utility systems serving the Premises (including the main sewer line) and
all parts thereof. Landlord shall not be obligated to paint the interior of
the Building, including, but not limited to, the interior surfaces of
exterior walls, not shall Landlord be obligated to maintain, repair or
replace windows, doors or glass of the Premises. Tenant accepts the
Premises in its current 'as is' condition, provided, Landlord shall ensure
that all building systems, power, roof, existing heating and air
conditioning systems, windows and seals, mechanical systems, and electrical
and plumbing systems and equipment are in good condition as of the date
Landlord delivers the Building to Tenant. Xxxxxxxx makes no representation
as to the suitability of the Premises for Xxxxxx's intended use. In
addition, Landlord shall deliver the Building in a condition that complies
with all codes and regulations, including, but not limited to, the
Americans With Disabilities Act and Title 24 requirements.
To the best of Landlord's actual knowledge, Landlord represents and
warrants that there are no latent defects in the Building. If Xxxxxx
notifies Landlord of a latent defect in the Building prior to two hundred
and seventy (270) days after mutual execution and delivery of this Lease,
Landlord shall correct and repair such defect at its sole cost and expense.
If Tenant does not notify Landlord of a latent defect in the Building prior
to such date, correction of any such defect shall be the obligation of the
party otherwise responsible therefor pursuant to the terms of this Lease.
Landlord shall not be liable for any failure to make any repairs or to
perform any maintenance unless Landlord fails within a reasonable time to
perform such obligation required to be performed by Landlord. For purposes
of this Section, a reasonable time shall in no event be less than thirty
(30) days after receipt by Landlord of written notice; provided, however,
if the nature of Landlord's obligation is such that more than thirty (30)
days are reasonably required for its performance, then Landlord shall not
be in breach if performance is commenced within such thirty (30) day period
and thereafter diligently pursued to completion. Performance shall be
deemed to have commenced if: (i) repair work has actually commenced or (ii)
Landlord is in the process of obtaining bids from contractors or having
plans and specifications prepared in connection with such repair work. If
Landlord breaches its obligation to make any repairs or to perform any
maintenance required to be performed by Landlord, or in the event of an
emergency roof leak that is not repaired by Landlord within three (3) days
after notice to Landlord, Tenant may repair the same itself where the cost
of such repairs does not require an expenditure of more than Fifty Thousand
Dollars ($50,000) and deduct the expenses of such repairs from the rent
when due.
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Landlord shall only be obligated to paint the exterior of the Building
as reasonably needed, but in no event more than once every five (5) years.
Landlord shall also be responsible for repairing the interior ceiling
of the Building at its sole cost if materially damaged by roof leaks,
unless such leaks result from: (i) the actions or willful misconduct of
Tenant or its employees, agents, contractors or invitees or (ii) equipment,
machinery or other improvements installed on the roof of the Building by or
for Tenant.
In no event shall Tenant be required to make any structural repairs to
the Building or be responsible for any direct or indirect costs arising
from or relating to the Roof Lease (including but not limited to repair,
maintenance or replacement of the roof) unless such repairs are necessary
due to the negligence, willful misconduct or other actions or use of the
Premises by Tenants or its employees, agents, contractors or invitees.
Tenant shall be responsible for any increased or additional costs for
replacement or repair of the roof of the Building arising out of or due to
Tenant's roof penetrations or roof equipment.
Regarding the roof of the Building, during the initial Term, any
decision as to whether the roof needs to be replaced shall be made by
Landlord in its sole and absolute discretion. During the Extended Term,
Tenant shall notify Landlord if it feels that the roof of the Building
needs to be replaced. If the parties cannot reach a mutual agreement within
thirty (30) days after Xxxxxxxx's receipt of such notice from Tenant
concerning the roof, the decision of whether the roof should be replaced
shall be determined in the following manner: Landlord and Tenant shall each
appoint one (1) arbitrator who shall by profession be a qualified licensed
consultant specializing in roofs and roofing systems in Southern California
who shall have been active in such business over the ten (10) year period
ending on the date of Tenant's notice to Landlord. Each arbitrator shall be
appointed within ten (10) days after the expiration of the thirty (30) day
mutual agreement period described hereinabove. If within thirty (30)days
after the arbitrators are appointed, the arbitrators are unable to agree
upon whether the roof should be replaced, then the two(2) arbitrators so
appointed shall, within fifteen (15) days after expiration of said thirty
(30) day period, agree upon and appoint a third arbitrator who shall be
qualified under the same criteria set forth hereinabove for qualification
of the initial two (2) arbitrators and who shall render a decision, within
fifteen (15) days following his or her appointment, regarding whether the
roof should be replaced. The decision of the third arbitrator shall be
binding upon Landlord and Tenant. If the two (2) arbitrators fail to agree
upon and appoint a third arbitrator, the matter shall be decided forthwith
by the American Arbitration Association pursuant to its Commercial
Arbitration Rules. The cost of the arbitration shall be paid equally by
Landlord and Tenant."
13. ABATEMENT. The following sentences are hereby added to the end of
Section 7.3 and shall read as follows:
"In the event Tenant is prevented from using the Premises for five (5)
consecutive days or seven (7) days in any twelve (12) month period: (i) as
a result of any repair, maintenance, inspection, audit or alteration
performed by Landlord which materially interferes with Tenant's use of the
Premises or (ii) if due to Landlord's negligence or willful misconduct
there is any interruption or termination of utilities or access to the
Premises, then rent and all other charges payable by Xxxxxx (except charges
payable pursuant to Section 10 of this Lease) shall be abated or reduced,
as the case may be, for such time exceeding the five (5) and seven (7) day
time periods. Any reduction in rent shall be based upon the proportion of
the rentable area of the Premises that Tenant is prevented from using bears
to the total rentable area of the Premises. In the event that Tenant is
prevented from conducting its business in any portion of the Premises, and
the remaining portion of the Premises is not sufficient to allow Tenant to
effectively conduct its business therein, then for such time exceeding the
five (5) and seven (7) day time periods described above, the rent for the
entire Premises and all other
7
charges payable by Xxxxxx (except charges payable pursuant to Section 10 of
this Lease) shall be abated."
14. PAYMENT OF OPERATING EXPENSES. Sections 7.6 through 7.12 are hereby
added to the Lease and shall read as follows:
"7.6 Except for sums expended by Landlord for the payment of repairs,
maintenance or capital improvements concerning the foundations, main sewer
line, exterior walls and structural condition of interior bearing walls,
all sums expended by Landlord for operation, maintenance, repair and
management of the Premises including, but not limited to, roof repairs and
maintenance; parking lot resurfacing; painting; re-striping; sewer
maintenance; cleaning; window cleaning; supplies and material costs;
licenses, permits and inspection fees; owners' association assessments;
sweeping; replacement of exterior light bulbs; pest control;
planting, replanting, replacing foliage, tree trimming and landscaping;
lighting and other utilities; directional signs and other markers and
bumpers; alarm services (including any central station signaling system);
and $1,000 per month for Landlord's supervision of the Premises
(collectively 'OPERATING EXPENSES') shall be payable by Tenant to Landlord.
Landlord may cause any or all services to be provided by an independent
contractor. No other management fee shall be payable by Tenant to Landlord.
Landlord currently estimates that the Operating Expenses are five cents
($.05) per square foot per month, the Taxes are six cents ($.06) per square
foot per month and insurance is one cent ($.01) per square foot per month.
7.7 The annual determination of Operating Expenses shall be made by
Landlord and shall be certified by a nationally recognized firm of public
accountants selected by Landlord ('LANDLORD'S ACCOUNTANTS').
7.8 Prior to the actual determination thereof for each calendar year
falling partly or wholly within the Term (each a 'LEASE YEAR'), Landlord
may from time to time estimate Tenant's liability for Operating Expenses
for a Lease Year or portion thereof. Landlord will give Tenant written
notification of the amount of such estimate and Xxxxxx agrees that it will
pay, by increase of its Monthly Installment of Rent due in such Lease Year,
additional rent in the amount of such estimate. Any such increased rate of
Monthly Installment of Rent pursuant to this Section 7.8 shall remain in
effect until further written notification to Tenant pursuant hereto.
7.9 When the above mentioned actual determination of Tenant's
liability for Operating Expenses is made for any Lease Year and when Tenant
is so notified in writing, then:
7.9.1 If the total additional rent Tenant actually paid pursuant
to Section 7.8 on account of Operating Expenses for the Lease Year is
less than Tenant's liability for Operating Expenses, then Tenant shall
pay such deficiency to Landlord as additional rent in one lump sum
within thirty (30) days of receipt of Landlord's bill therefor;
7.9.2 If the total additional rent Tenant actually paid pursuant
to Section 7.8 on account of Operating Expenses for the Lease Year is
more than Tenant's liability for Operating Expenses, then Landlord
shall credit the difference against the then next due payments to be
made by Tenant under this Article 7.
7.10 If the Commencement Date is other than January 1 or if the
Termination Date is other than December 31, Tenant's liability for
Operating Expenses for the Lease Year in which such date occurs shall be
prorated based upon a three hundred sixty-five (365) day year.
8
7.11 Provided an Event of Default is not continuing, Tenant shall have
the right to audit Landlord's books during normal business hours upon at
least fifteen (15) days advance notice given within two hundred seventy
(270) days after certification by Xxxxxxxx's Accountant. In addition, in
the event that such audit discloses an overstatement by Landlord of five
percent (5%) or more for an accounting period, Landlord shall promptly pay
the cost of such audit, provided Landlord agrees with the results of such
audit or there is a final determination concerning the results of such
audit, as set forth below. Should Landlord disagree with the results of
Xxxxxx's audit, then Xxxxxxxx's Accountant and Xxxxxx's accountant shall
promptly mutually agree upon a nationally recognized firm of public
accountants, who shall be engaged to review the information prepared by
Xxxxxxxx's Accountant, Tenants audit and such other information as such
accounting firm may reasonably request. Such third accounting firm's
determination of the Operating Expenses shall be conclusive upon Landlord
and Tenant. Should Tenant fail to object in writing to Landlord's
determination of operating Expenses within two hundred and seventy (270)
days after certification by Landlord's Accountant, Landlord's determination
of Operating Expenses for the applicable period shall be conclusive and
binding on the parties. If either Landlord or Tenant is owed money based
upon the final determination of Operating Expenses, such party shall be
paid by the other party within thirty (30) days after the final
determination of Operating Expenses.
7.12 Notwithstanding any provision of this Lease to the contrary,
Landlord and Tenant acknowledge and agree that the following items shall be
excluded from Operating Expenses:
7.12.1 Repairs or other work occasioned by fire, windstorm or
other casualty covered by insurance or by the exercise of eminent domain or
any expenditures for which Landlord is entitled to reimbursement from any
source, including without limitation insurance and condemnation proceeds;
7.12.2 All costs and expenses associated with leasing to other
tenants, including tenant improvement allowances, attorney's fees,
brokerage commissions and architectural fees, if any:
7.12.3 Renovating or otherwise improving or decorating, painting
or redecorating space for other tenants;
7.12.4 Landlord's cost of electricity and any other services that
are sold to other tenants and for which Landlord is entitled to
reimbursement by such other tenants as an additional charge or rental over
and above the base rent payable under the leases with such other tenants,
if any;
7.12.5 Costs incurred by Landlord for alterations, repairs,
replacements or improvements which are considered capital alterations,
repairs, replacements or improvements under generally accepted accounting
principles, unless required by law or if anticipated to lower Operating
Expenses;
7.12.6 Expenses in connection with services or other benefits of
a type which are not provided Tenant, but which are provided to another
tenant or occupant, if any;
7.12.7 Costs, fines or penalties incurred due to violation by
Landlord or any other tenant of the terms and conditions of any lease, laws
or regulations, if any;
7.12.8 All items and services for which Tenant reimburses
Landlord or pays third parties directly;
7.12.9 Depreciation;
9
7.12.10 Ground lease rental payments and principal or interest
payments on loans secured by mortgages encumbering the Premises, or any
costs incurred by Landlord in connection with such ground lease or loans,
except as otherwise specifically permitted pursuant to this Section 7.12;
7.12.11 Capital taxes, income taxes, corporate taxes, corporation
capital taxes, excise taxes, profits taxes or other taxes personal to
Landlord;
7.12.12 Costs for investigating, monitoring, remediating or
indemnifying for Hazardous Materials;
7.12.13 Costs for repairing or maintaining the roof of the
Building that: (i) constitute a capital improvement under generally
accepted accounting principles or (ii) due to or a result of the Roof Lease
or the System in connection with the Roof Lease;
7.12.14 Any termination fee payable pursuant to Section 16.3 of
the Roof Lease; and
7.12.15 Costs for painting the exterior of the Building, except
for painting as part of normal maintenance or as a result of actions or use
of the Premises by Tenant or its employees, agents, contractors or
invitees."
15. TIMING FOR LANDLORD'S CONSENT TO SUBLEASE OR ASSIGNMENT. The following
sentence is hereby added to the end of Section 9.1 and shall read as follows:
"If Landlord fails to respond to a request for Xxxxxxxx's consent to a
sublease or assignment within thirty (30) days after receipt of a notice
from Tenant requesting such consent from Landlord, then in such event
Landlord shall be deemed to have given its consent."
16. SUBLEASE AND ASSIGNMENT RIGHTS. Section 9.8 is hereby added to the
Lease and shall read as follows:
"Notwithstanding any other provisions hereof, Tenant (without
obtaining Landlord's consent) shall have the right to freely transfer or
assign the Lease and sublease all or part of the Premises: (i) to any
entity which controls, is controlled by or is under common control with
Tenant, (ii) to the surviving corporation in a merger or other corporate
reorganization in which Tenant is involved or (iii) to any entity which
acquires a majority of all the assets or capital stock of Tenant, provided
that Tenant notifies Landlord of such transfer no later than thirty (30)
days after such transfer."
17. INDEMNITY. The following sentence is hereby added to the end of
Section 10:
"Landlord will protect, indemnify and hold Tenant harmless from and
against any and all loss, claims, liability or costs (including court costs
and attorney's fees) incurred by reason of or arising out of: (a) any
negligent act or omission of Landlord, its agents, employees, invitees or
contractors, (b) any breach or default on the part of Landlord in the
performance of any covenant or agreement on the part of Landlord to be
performed pursuant to this Lease or (c) the Roof Lease, unless caused by
Tenant or its employees, agents, contractors or invitees."
18. INSURANCE. The following sentence is hereby added to the end of
Section 11.1:
"Landlord may require a larger amount of insurance required above, in
Landlord's reasonable judgment, two (2) times during the Extended Term,
once for each of the Options."
10
19. LANDLORD INSURANCE. The following Section 11.4 is hereby to the Lease
and shall read as follows:
"11.4.1 Landlord shall maintain All Risk Property Insurance upon the
Building and other improvements to the Premises with coverage for perils as
set forth on the Cause of Loss-Special Form, in an amount equal to full
replacement cost. Such insurance shall contain an agreed valuation
provision in lieu of any co-insurance clause, an increased cost of
construction endorsement, debris removal coverage and a waiver of
subrogation endorsement in favor of Tenant.
11.4.2 Landlord shall maintain Commercial General Liability Insurance,
including Contractual Liability Insurance coverage, covering Landlord's
operations on the Premises, with combined single limits of
not less than Two Million Dollars ($2,000,000) per occurrence for bodily
injury or property damage, naming Tenant as an additional insured. Such
insurance shall be endorsed to provide that the insurance shall be primary
to and contributory to any similar insurance carried by Tenant, and shall
contain a severability of interest clause.
11.4.3 Landlord shall maintain Workers' Compensation Insurance
providing statutory benefits to employees of Landlord in the State of
California with a waiver of subrogation in favor of Tenant and Employer's
Liability Insurance with limits of not less than One Hundred Thousand
Dollars ($,100,000) per accident or disease and Five Hundred Thousand
Dollars($500,000) aggregate by disease.
11.4.4 Notwithstanding anything to the contrary above, in lieu of
maintaining the insurance required under this Section 11.4: (i) the
original Landlord, CalWest Industrial Properties, LLC, and (ii) any
subsequent Landlord of the Premises, who has and maintains during the Term
a net worth in excess of Fifty Million Dollars ($50,000,000) (as evidenced
by Landlord's most recent financial statement) initially and increase three
percent (3%) each year during the Term, may self insure for any of the
insurance required to be carried by Landlord under this Lease. Xxxxxx
agrees not to disclose any financial statements received from Landlord and
to keep such financial statements confidential. The carrying of any
insurance by Landlord shall in no way be interpreted as relieving Tenant of
any liability or responsibility under this Lease."
20. ELECTRICITY. The following sentence is hereby added to the end of
Section 13:
"Tenant shall be obligated to purchase energy generated by the System;
provided, however: (i) in no event shall Tenant be obligated to pay more
for such System energy than it would have otherwise had to pay for such
energy if it had been purchased from San Diego Gas and Electric Company and
(ii) Landlord pays for any writing, connections and /or hook up charges to
the System at its sole cost and expense."
21. SUBORDINATION. The following sentences are hereby added to the end of
Section 15:
"Tenant hereby agrees to subordinate its rights hereunder to the
interest of any ground lessor of the land upon which the Premises are
situated and/or the lieu of any mortgage or deed of trust, hereafter in
force, against the land and/or Building of which the Premises is a part;
provided, however, that the ground lessor, or the mortgagee or trustee, as
applicable, named in such mortgage or trust deed shall agree that Tenant's
peaceable possession of the Premises will not be diminished on account
thereof. In the event (i) any proceedings are brought for foreclosure, or
(ii) of the exercise of the power of sale under any mortgage or deeds of
trust, then, upon any such foreclosure or sale, Tenant agrees to recognize
and attorn to such beneficiary or purchaser as Landlord under this Lease,
provided that Xxxxxx's right to possession under this Lease continues
undiminished, subject to the terms and conditions of this Lease. Xxxxxxxx
agrees to attempt to obtain a
11
commercially reasonable Subordination Non-Disturbance and Attornment
Agreement ('SNDA') that does not conflict with the terms of this Lease from
any future lender with a mortgage or deed of trust encumbering the Premises
within thirty (30) days after Landlord obtains financing from such lender;
provided that if such SNDA is not so delivered, Tenant shall not be
required to subordinate its rights under this Lease to such future lender's
mortgage or deed of trust."
22. RE-ENTRY BY LANDLORD: CONFIDENTIALITY. The following sentences are
hereby added to the end of Section 16.1:
"Landlord agrees to use commercially reasonable efforts to coordinate
with Tenant the timing of inspections, alterations, improvements or repairs
by Landlord concerning the Premises, so that such inspections, alterations,
improvements or repairs are performed at a time that is reasonably
satisfactory to Tenant. Xxxxxxxx's right to re-enter the Premises as
provided for in this Lease shall be conditioned upon Landlord giving to the
Tenant reasonable advance notice, except in the case of emergencies. For
purposes of this Lease reasonable advance notice shall mean that Tenant is
entitled to at least twenty-four (24) hours notice, and Tenant may require
additional time not to exceed five (5) business days as tenant deems
necessary, provided Tenant acts in good faith to allow such re-entry
promptly.
Landlord agrees that environmental audits or inspections of the
Premises shall be limited to Tenant's handling, transportation, storage,
treatment and use of Hazardous Materials, together with its compliance with
Environments Laws in connection therewith, and shall not be conducted more
often than once a year, unless a problem has been identified that
reasonably requires further inspections or in the event Landlord is
notified of or has reasonable cause to believe that a release of Hazardous
Materials at the Premises has occurred. Landlord acknowledges that the
annual environmental audit that it performs normally: (i) does not result
in a shutdown of a tenant's operations and (ii) does not last more than
eight (8) hours.
Xxxxxxxx agrees, concurrently upon the execution of the Lease, to
execute a confidentiality agreement in the form attached hereto as Exhibit
D-1. Landlord further agrees that any persons conducting any inspections of
the premises or otherwise entering the Premises shall be required, as a
condition to entering the Premises, upon Xxxxxx's request, to execute a
confidentiality agreement in the form attached hereto as Exhibit D-2."
23. ATTORNEYS FEES. The following sentences are hereby added to the end of
Section 18.2:
"In the event of any controversy, claim or dispute between the parties
hereto arising out of or relating to this Lease, including but not limited
to a controversy settled by arbitration, the prevailing party shall be
entitled to recover from the losing party reasonable expenses, attorneys'
fees and costs. Any attorneys' fees of the prevailing party incurred in
enforcing any judgment are recoverable as a separate item. This right to
recover post-judgment attorneys' fees is intended to be severable from the
other provisions of this Lease, to survive any judgment that may be entered
in connection with or arising Lease, and is not to be deemed merged into
any such judgment."
24. DAMAGE: ELECTION BY TENANT. The following sentences are hereby added to
the end of Section 21.3 of the Lease and shall read as follows:
"Notwithstanding anything to the contrary contained in this Section
21.3, in the event that Land lord notifies Tenant of its election to
terminate this Lease pursuant to this Section 21.3, Tenant may nevertheless
elect to keep this Lease in full force and effect subject to the following
terms and conditions: (i) Tenant so notifies Landlord of its election to
keep this Lease in full force and effect within
12
thirty (30) days after receiving Xxxxxxxx's termination notice and (ii)
Tenant covenants to repair such damage to the Premises or the Building in
accordance with the terms and provisions of this Lease at its sole cost and
expense, provided however, Landlord shall in such event make available to
Tenant insurance proceeds, it any, received by Landlord as set forth below.
Landlord shall disburse insurance proceeds, if any, to Tenant or
Tenant's contractor based upon the percentage of completion of such repairs
within thirty (30) days after receipt from Tenant or Tenant's contractor of
a request for payment, together with copies of submitted invoices,
certification from Tenant's architect concerning the appropriate percentage
of work completed and all unconditional waiver and release upon progress
payment for material and labor from Tenant's contractor, subcontractors and
suppliers, subject to Landlord's reasonable verification concerning
satisfaction of quality and the percentage of work completed as reasonably
determined by the parties. The final ten percent (10%) of insurance
proceeds held by Landlord, if any, shall be paid to Tenant or Tenant's
contractor within sixty (60) days following proper recordation of a Notice
of Completion for the repair work, and subject to satisfaction of the
following conditions:
21.3.1 Such repair work must have been completed in accordance
with the Landlord approved final plans and specifications.
21.3.2 Tenant has submitted a complete set of "as built" plans
and specifications to Landlord.
21.3.3 A final, unconditional certificate of occupancy for the
Premises has been issued by the appropriate governmental agency, and a copy
thereof provided to Landlord.
21.3.4 Tenant has provided Landlord with properly executed
mechanics lien releases in compliance with California Civil Code Section
3262(d)(4) from Tenant's contractor, subcontractors and suppliers
performing work in the Premises.
21.3.5 Tenant has provided Landlord all construction warranties
and guarantees in connection with the construction of the Tenant's Work to
the extent obtained.
21.3.6 Landlord has inspected and approved the Tenant's repair
work and is reasonably satisfied that the Tenant's repair work has been
performed in a good and workmanlike manner in accordance with the approved
plans; provided, however, no such inspection shall impose any liability
upon Landlord, nor absolve Tenant or Xxxxxx's contractor from liability for
any defect or failure to comply with the requirements hereof."
25. DELAY IN REBUILDING. The following sentence is hereby added to the end
of Section 21.5:
"However, in the event that such delay continues for more than three
hundred and sixty-five (365) days (not counting those days of delay caused
by Tenant or changes, deletions or additions in construction requested by
Tenant), Tenant may terminate this Lease by written notice to Landlord
prior to substantial completion of such repairs to the Premises."
26. DAMAGE DURING LAST TWELVE MONTHS. Section 21.6 of the Lease is hereby
restated to read as follows:
"Notwithstanding anything to the contrary contained in this Article 21
Landlord shall not have any obligation whatsoever to repair, reconstruct,
or restore the Premises when the damages resulting from any casualty
covered by the
13
provisions of this Article 21 occur during the last twelve (12) months of
the Term or any extension thereof. If such damage to the Premises during
the last twelve months of the Term or any extension thereof materially
interferes with Xxxxxx's use and occupancy of the Premises, in such event
either party shall have the right to terminate this Lease by delivering
written notice of termination to the other party within fifteen (15) days
after such damage."
27. ESTOPPEL CERTIFICATES. The following sentence is hereby added to the
end of Section 24:
"Any statements by Tenant under Sections 24(d) or (e) above shall be
limited to the best of Tenant's actual knowledge after reasonable inquiry
and investigation, and Tenant shall have no liability for inaccuracies in
such statements made under Sections 24(d) or (e) above unless Tenant knew
such statements were inaccurate or, with reasonable inquiry and
investigation, should have known such statement were inaccurate."
28. JOINT INSPECTION. The first sentence of Section 25.1 is hereby restated
to read as follows:
"At least thirty (30) days before the last day of the Term, each of
the parties agrees to use diligent efforts to arrange a meeting with the
other party at the Premises for a joint inspection of the Premises."
29. SURRENDER OF PREMISES. The following sentence is hereby added to the
end of Section 25.3:
"Tenant shall pay to Landlord within thirty (30) days after receipt of
an invoice from Landlord the amount incurred by Landlord necessary to
restore and repair the Premises as provided in the Lease and/or to
discharge Tenant's obligation for unpaid amounts due or to become due to
Landlord."
30. AUTHORITY. The following sentences are hereby added to the end of
Section 29:
"Landlord represents and warrants that Landlord has complied with all
applicable laws, rules and governmental regulations relative to its right
to do business in California and that Landlord is authorized to enter into
this Lease. Xxxxxxxx agrees to furnish promptly upon request appropriate
documentation evidencing the due authorization of Landlord to enter into
this Lease."
31. ADDITIONAL PROVISIONS. The following provisions are hereby added to the
Lease:
"37. SECURITY. Tenant hereby acknowledges that the rental payable to
Landlord hereunder does not include the cost of guard service or other
security measures, and that Landlord shall have no obligation whatsoever to
provide same. Tenant assumes all responsibility for the protection of the
Premises, Tenant, its agents and invitees and their property from the acts
of third parties.
38. SIGNAGE. Tenant may erect, maintain, and replace from time to time
upon the Premises and the exterior of the Building including prominent
building signage and signage at the front entrance to the project in the
form of a directional sign to the Premises (subject to and in compliance
with all applicable laws, ordinances, government rules or regulations and
the CC&Rs), at Tenant's sole cost and expense, signs that Tenant deems
appropriate to the conduct of its business and approved by Landlord, which
approval will not be unreasonably withheld. Tenant shall maintain such
signs in good order, condition and repair, and in compliance with all
applicable laws, ordinances, government rules or regulations and the CC&Rs.
14
39. PARKING
39.1 Tenant, at no additional expense, shall be entitled to use
the parking spaces associated with the Premises. All responsibility for
damage and theft to vehicles is assumed by Tenant and Tenant's employees,
visitors and customers. Tenant shall repair or cause to be repaired, at
Tenant's sole cost and expense, any and all damage to the Premises caused
by Tenant, or Tenant's employees', visitors' or customers' use of such
parking areas. Any governmental charges or surcharges or other monetary
obligations imposed relative to parking rights with respect to the Premises
shall be payable by Xxxxxx.
39.2 Landlord reserves the right to change the entrances, exits,
traffic lanes and boundaries and locations of the parking area for the
Premises, provided such change is required by a government entity. Tenant,
in the use of such parking areas, agrees to comply with reasonable rules
and regulations for parking as Landlord may adopt form time to time for the
orderly and proper operation of said parking areas, provided that such
rules and regulations do not conflict with the terms of this Lease.
40. FINANCIAL STATEMENTS. Tenant acknowledges that it has provided
Landlord with its financial statements as a material inducement to
Landlord's agreement to lease the Premises to Tenant, and that Landlord has
relied on the accuracy of said financial statements in entering into this
Lease. Tenant represents and warrants that the information contained in
said financial statements is true, complete and correct in all material
aspects, and agrees that the foregoing representation and warranty shall be
precondition to this Lease. At any time during the term of this Lease,
within ten (10) days of Landlord's request, Tenant shall furnish to
Landlord (if Tenant is not a publicly traded entity) financial statements
of a similar nature for Tenant's most recent fiscal year available and
shall represent and warrant the accuracy of such information.
41. EARLY TERMINATION. Tenant in its sole and absolute discretion may
terminate this Lease by providing written notice to Landlord on or before
July 31, 2001, which notice shall be accompanied by a termination fee equal
to Four Hundred Thousand Dollars ($400,000) less the first month's rent
paid to Landlord upon execution of this Lease. Additionally, Tenant may
terminate this Lease by delivering to Landlord between August 1, 2001 and
September 15, 2001 written notice of such termination, together with a
termination fee equal to One Million Dollars ($1,000,000) less the first
month's rent paid to Landlord upon execution of this Lease. In the even
this Lease is terminated pursuant to Article 21 or Section 1.3 of this
Lease, no termination fee shall be payable by Tenant.
42. SQUARE FOOTAGE. Tenant has the right, at its sole cost, to measure
the square footage of the Building. The parties agree that such measurement
will be calculated based upon measurements taken from the exterior side of
the outermost vertical surface of the exterior walls of the Building and as
to the mezzanine, the measurements shall be taken of the actual deck
surface area and for stairways, the entire area of the stairwell less that
part of the stairs attached to the ground floor. Tenant shall have until
May 30, 2001, to notify Landlord if it disagrees with Landlord's
calculation of the square footage of the Building, set forth on the
Reference Page of this Lease as the Building Rentable Area. If the parties
agree on a Building Rentable Area different than that set forth on the
Reference Page of this Lease, the parties shall recalculate the Initial
Annual Rent and the Initial Monthly Installment of Annual Rent and execute
an amendment to this Lease to memorialize such agreement and recalculation
of rent. If the parties do not agree on the Building Rentable Area on or
before June 8, 2001 the Building Rentable Area shall be determined in the
following manner: Landlord and Tenant shall each appoint one (1) arbitrator
who shall by profession by a
15
qualified licensed architect or space planner specializing in industrial
buildings in Southern California who shall have been active in such
profession over the ten (10) year period ending on June 8, 2001. Each
arbitrator shall be appointed by June 18, 2001. If within thirty (30) days
after the arbitrators are appointed, the arbitrators are unable to agree
upon the Building Rentable Area, then the two (2) arbitrators so appointed
shall, within fifteen (15) days after expiration of said thirty (30) day
period, agree upon and appoint a third arbitrator who shall be qualified
under the same criteria set forth hereinabove for qualification of the
initial two (2) arbitrators and who shall render a decision, within fifteen
(15) days following his or her appointment, regarding the determination of
the Building Rentable Area. The decision of the third arbitrator shall be
binding upon Landlord and Tenant. If the two (2) arbitrators fail to agree
upon and appoint a third arbitrator, the matter shall be decided forthwith
by the American Arbitration Association pursuant to its Commercial
Arbitration Rules. The cost of the arbitration shall be paid equally by
Landlord and Tenant. If Xxxxxx fails to notify Landlord on or before May
30, 2001 that it disagrees with Landlord's calculation of the Building
Rentable Area, then the Building Rentable Area set forth on the Reference
Page of this Lease shall be conclusive and binding upon the parties. The
Building Rentable Area shall not be increased in the event that Tenant
enlarges the mezzanine of the Building or otherwise adds second story
space in the Building."
IN WITNESS WHEREOF, the parties have executed this Addendum as of the date
first above written.
LANDLORD TENANT
CalWest Industrial Properties, LLC,
Invitrogen Corporation, a Delaware corporation
a California Limited liability company
By: /s/ Xxxx X. Xxxxxxxx
By: RREEF AMERICA, L.L.C., a Delaware ----------------------------------------
limited liability company, its Manager Name: Xxxx X. Xxxxxxxx
----------------------------------------
Title: Vice President
----------------------------------------
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxx By: /s/ Xxxx Xxxxxxxxxx
------------------------------- ----------------------------------------
Name: Xxxx Xxxxxxxxxx
Title: VP - Authorized Representative ----------------------------------------
------------------------------- Title: Vice President, Gen. Counsel & Secretary
----------------------------------------
16
EXHIBIT "D-1"
SITE
VISIT CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement (the "Agreement") is entered into by and
between
Invitrogen Corporation ("Invitrogen") and CalWest Industrial
Properties, LLC ("Participant"). In consideration of the mutual agreements
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties, intending to be
legally bound, agree that:
1. The discloser of Information is Invitrogen. The receiver of Information is
Participant.
2. The parties' representatives for disclosing or receiving Information,
respectively, are: for Invitrogen: Xxxx Xxxxxxx or his/her designee; for
Participant: Xxxx Xxxxxxxx or his/her designee.
3. Information disclosed under this agreement includes, but is not limited to,
the complete capability of the plants located on the site visited, including but
not limited to the facilities, the processes, the scale of operations both
individually and collectively, the technologies employed, the equipment
employed, including its scale and source, information relating to employee
training in quality and assurance, procedures for and record keeping of batch
records, and Invitrogen's plans for changing any or all of the foregoing.
4. The burdens of nonuse and confidentiality on Participant will continue until
terminated by mutual agreement between the parties hereto.
5. Participant will not use the Information except as is necessary or disclose
the Information to any person except its employees, consultants or
subcontractors, as is necessary in connection with Participant's maintenance,
repairs and inspections of the premises located at 0000 Xxx Xxxxx Xxx, Xxxxxxxx,
Xxxxxxxxxx in conjunction with and in accordance with that certain Lease dated
as of May 31, 2001 between Invitrogen and Participant, and any such disclosures
to consultants or subcontractors shall be under a written agreement with terms
at least as restrictive as those specified herein. Any of the persons mentioned
above who are given access to the Information shall be informed by the
Participant of this Agreement. Participant shall protect the Information by
using the same degree of care as Participant uses to protect its own
confidential Information, but in any event no less than a reasonable degree of
care.
6. Participant's duties under this Agreement shall apply to any Information
received from Invitrogen by Participant, whether disclosed (i) orally, (ii)
visually, (iii) in a written document, memorandum, report, correspondence,
drawing or other material, computer-readable media, or (iv) in the form of
tangible products or materials.
7. Notwithstanding any other provisions of this Agreement, Information
shall not include any item of information which: (a) is within the public domain
prior to the time of the disclosure by Invitrogen to Participant or thereafter
becomes within the public domain other than as a result of disclosure by
Participant or any of its representatives in violation of this Agreement; (b)
was, on or before the date of disclosure in the possession of Participant, as
evidenced by records, however maintained; (c) is acquired by Participant from a
third party not under an obligation of confidentiality; or (d) is hereafter
independently developed by Participant, as evidenced by records, however
maintained.
8. In the event that Participant or anyone to whom it transmits the Information
pursuant to this agreement becomes legally required to disclose any such
Information, Participant shall provide Invitrogen with prompt notice so that
Invitrogen may seek a protective order or other appropriate remedy and/or waive
compliance with the provisions of this Agreement. In the event that such
protective order or other remedy is not obtained, Participant shall furnish only
that portion of the Information which is legally required to be furnished in the
opinion of Participant's counsel.
9. This Agreement is made under and shall be construed in accordance with the
laws of the State of California and constitutes the entire understanding between
the parties hereto with respect to the subject matter hereof and merges any and
all prior agreements, understandings and representations related to such subject
matter. This Agreement may not be superseded, amended or modified except by
written agreement between the parties hereto.
10. Each of the parties hereto has caused this Agreement to be executed on its
behalf by its authorized representative.
CALWEST INDUSTRIAL PROPERTIES,
INVITROGEN CORPORATION
LLC 0000 XXXXXXX XXXXXX
XXXXXXXX, XXXXXXXXXX 00000
/s/ Xxxxxxx X. Xxxxxxxx 6/11/01 /s/ Xxxx X. Xxxxxxxx June 6, 2001
----------------------------------- -------------------------------------
AUTHORIZED SIGNATURE DATE AUTHORIZED SIGNATURE DATE
XXXXXXX X. XXXXXXXX V.P. Xxxx X. Xxxxxxxx Vice President
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NAME TITLE NAME TITLE
2
EXHIBIT "D-2"
SITE
VISIT CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement (the "Agreement") is entered into by and
between
Invitrogen Corporation ("Invitrogen") and ______________________________
("Participant"). In consideration of the mutual agreements contained herein and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties, intending to be legally bound, agree that:
1. The Discloser of Information is Invitrogen. The Receiver of Information is
Participant.
2. The parties' representatives for disclosing or receiving Information,
respectively, are: for Invitrogen: ___________________________ or his/her
designee; for Participant: _______________________ or his/her designee.
3. Information disclosed under this Agreement includes, but is not limited to,
the complete capability of the plants located on the site visited, including but
not limited to the facilities, the processes, the scale of operations both
individually and collectively, the technologies employed, the equipment
employed, including its scale and source, information relating to employee
training in quality and assurance, procedures for and record keeping of batch
records, and Invitrogen's plans for changing any or all of the foregoing.
4. The burdens of nonuse and confidentiality on Participant will continue
until terminated by mutual agreement between the parties hereto.
5. Participant will not use the Information except as is necessary or
disclose the Information to any person except its employees, consultants
or subcontractors, as is necessary in connection with _________________________
_____________________________ Participant's __________________________________
_________________________________________________________________
___________________________________________________________ [e.g. conducting, or
having ________________ conduct, an environmental audit of the premises;
evaluating the premises as a prospective tenant/purchaser of the premises], and
any such disclosures to consultants or subcontractors shall be under a written
agreement with terms at least as restrictive as those specified herein. Any of
the persons mentioned above who are given access to the Information shall be
informed by the Participant of this Agreement. Participant shall protect its own
confidential Information, but in any event no less than a reasonable degree of
care.
6. Participant's duties under this Agreement shall apply to any Information
received from Invitrogen by Participant, whether disclosed (i) orally, (ii)
visually, (iii) in a written document, memorandum, report, correspondence,
drawing or other material, computer-readable media, or (iv) in the form of
tangible products or materials.
7. Notwithstanding any other provisions of this Agreement, Information
shall not include any item of information which: (a) is within the public domain
prior to the time of the disclosure by Invitrogen to Participant or thereafter
becomes within the public domain other than as a result of disclosure by
Participant or any of its representatives in violation of this Agreement; (b)
was, on or before the date of disclosure in the possession of Participant, as
evidenced by records, however maintained; (c) is acquired by Participant from a
third party not under an obligation of confidentiality; or (d) is hereafter
independently developed by Participant, as evidenced by records, however
maintained.
8. In the event that Participant or anyone to whom it transmits the
Information pursuant to this Agreement becomes legally required to disclose any
such Information, Participant shall provide Invitrogen with prompt notice so
that Invitrogen may seek a protective order or other appropriate remedy and/or
waive compliance with the provisions of this Agreement. In the event that such
protective order or other remedy is not obtained, Participant shall furnish only
that
portion of the Information which is legally required to be furnished in the
opinion of Participant's counsel.
9. This Agreement is made under and shall be construed in accordance with the
laws of the State of California and constitutes the entire understanding between
the parties hereto with respect to the subject matter hereof and merges any and
all prior agreements, understandings and representations related to such subject
matter. This Agreement may not be superseded, amended or modified except by
written agreement between the parties hereto.
10. Each of the parties hereto has caused this Agreement to be executed on its
behalf by its authorized representative.
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INVITROGEN CORPORATION
----------------------------------- 1600 FARADAY AVENUE
----------------------------------- CARLSBAD, CALIFORNIA 92008
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AUTHORIZED SIGNATURE DATE AUTHORIZED SIGNATURE DATE
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NAME TITLE NAME TITLE
2
