1
EXHIBIT 10.21
INDUSTRIAL REAL ESTATE LEASE
(Multi-Tenant Facility)
ARTICLE ONE: BASIC TERM
This Article One contains the Basic Terms of this Lease between the
Landlord and Tenant named below. Other Articles, Sections and Paragraphs of the
Lease referred to in this Article One explain and define the Basic Terms and are
to be read in conjunction with the Basic Terms.
Section 1.01. DATE OF LEASE: July 26, 1996
---------------------------------
Section 1.02. LANDLORD (INCLUDE LEGAL ENTITY): TCEP II Properties
Limited Partnership, a Texas limited partnership ----------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
ADDRESS OF LANDLORD: c/o Xxxxxxxx Xxxx Company, 0000 Xxxxxx xxx
Xxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000
Section 1.03. TENANT (INCLUDE LEGAL ENTITY): Biosite Diagnostics, Inc.,
a California Corporation
------------------------------------------------------------------------------
------------------------------------------------------------------------------
ADDRESS OF TENANT: 00000 Xxxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000
Section 1.04. PROPERTY: The Property is part of Landlord's multi-tenant
real property development known as Sorrento West Industrial Park and described
or depicted in Exhibit "A" (the "Project"). The Project includes the land, the
buildings and all other improvements located on the land, and the common areas
described in Paragraph 4.05(a). The Property is (include street address,
approximate square footage and description):
Suites A-E at that certain building located at 00000 Xxxxxxx Xxxxxx, Xxx Xxxxx,
Xxxxxxxxxx, containing approximately 17,471
square feet.
Section 1.05. LEASE TERM: Two (2) years 0 months beginning on October
1, 1996 or such other date as is specified in this Lease, and ending on
September 30, 1998.
0000 Xxxxxxxx Xxxxxxxxxx Chapter Initials ________
of the Society of Industrial
and Office Realtors, Inc.
(Multi-Tenant Gross Form)
-1-
2
Section 1.06. PERMITTED USES: (See Article Five) General administrative
offices, warehousing and ancillary functions.
Section 1.07. TENANT'S GUARANTOR: (If none, so state) None.
Section 1.08. BLANK
Section 1.09. BASE YEAR: The calendar year of 1997
Section 1.10. INITIAL SECURITY DEPOSIT: (See Section 3.03) $11,356.15
Section 1.11. VEHICLE PARKING SPACES ALLOCATED TO TENANT: (See Section
4.05) Thirty-two (32)
Section 1.12. RENT AND OTHER CHARGES PAYABLE BY TENANT:
(a) BASE RENT: Eleven Thousand Three Hundred Fifty-six and
15/100******************* Dollars ($11,356.15) per month for the first Twelve
(12) months, as provided in Section 3.01. and shall be increased on the first
day of the thirteenth (13th) month(s) after the Commencement Date, to Eleven
Thousand Seven Hundred Five and 57/100 ($11,705.57) per month for the next
twelve (12) months.
(b) OTHER PERIODIC PAYMENTS (i) Real Property Taxes above the "Base
Real Property Taxes" (See Section 4.02); (ii) Utilities (See Section 4.03);
(iii) increased Insurance Premiums above "Base Premiums" (See Section 4.04);
(iv) Tenant's Initial Pro Rata Share of Common Area Expenses 10.75 % (See
Section 4.05); (v) Impounds for Tenant's Share of Insurance Premiums and
Property Taxes (See Section 4.08); (vi) Maintenance Repairs and Alterations (See
Article Six).
Section 1.13. COSTS AND CHARGES PAYABLE BY LANDLORD: (a) Base Real
Property Taxes (See Section 4.02); (b) Base Insurance Premiums (See Section
4.04(c)); (c) Common Area costs during the Base Year (Section 4.05); (d)
Maintenance and Repair (See Article Six).
Section 1.14. LANDLORD'S SHARE OF PROFIT ON ASSIGNMENT OR SUBLEASE:
(See Section 9.05) One Hundred percent ( 100 %) of the Profit (the "Landlord's
Share").
Section 1.15. RIDERS: The following Riders are attached to and made a
part of this Lease: (If none, so state)_______________________________________
______________________________________________________________________________
______________________________________________________________________________
1988 Southern California Chapter Initials ________
of the Society of Industrial
and Office Realtors, Inc.
(Multi-Tenant Gross Form)
-2-
3
ARTICLE TWO. LEASE TERM
Section 2.01. LEASE OF PROPERTY FOR LEASE TERM. Landlord leases the
Property to Tenant and Tenant leases the Property from Landlord for the Lease
Term. The Lease Term is for the period stated in Section 1.05 above and shall
begin and end the date specified in Section 1.05 above, unless the beginning or
end of the Lease Term is changed under any provisions of this Lease. The
"Commencement Date" shall be the date specified in Section 1.05 above for the
beginning of the Lease Term unless advanced or delayed under any provision of
this Lease.
Section 2.02. DELAY IN COMMENCEMENT. Landlord shall not be liable to
Tenant if Landlord does not deliver possession of the Property to Tenant on the
Commencement Date. Landlord's non-delivery of the Property to Tenant on that
date shall not affect this Lease or the obligations of Tenant under this Lease
except that the Commencement Date shall be delayed unless Landlord delivers
possession of the Property to Tenant and the Lease Term shall be extended for a
period equal to the delay in delivery of possession of the Property to Tenant,
plus the number of days necessary to end the Lease Term on the last day of a
month. If Landlord does not deliver possession of the Property to Tenant within
sixty (60) days after the Commencement Date, Tenant may elect to cancel this
Lease by giving written notice to Landlord within ten (10) days after the sixty
(60) day period ends. If Tenant gives such notice, the Lease shall be cancelled
and neither Landlord nor Tenant shall have any further obligations to the other.
If Tenant does not give such notice, Tenant's right to cancel the Lease shall
expire and the Lease Term shall commence upon the delivery of possession of the
Property to Tenant. If delivery of possession of the Property to Tenant is
delayed, Landlord and Tenant shall, upon such delivery, execute an amendment to
this Lease setting forth the actual Commencement Date and expiration date of the
Lease. Failure to execute such amendment shall not affect the actual
Commencement Date and expiration date of the Lease.
Section 2.03. EARLY OCCUPANCY. If Tenant occupies the Property prior to
the Commencement Date, Tenant's occupancy of the Property shall be subject to
all of the provisions of this Lease. Early occupancy of the Property shall not
advance the expiration date of this Lease. Tenant shall pay Base Rent and all
other charges specified in this Lease for the early occupancy period.
Section 2.04. HOLDING OVER. Tenant shall vacate the Property upon the
expiration or earlier termination of this Lease. Tenant shall reimburse Landlord
for and indemnify
0000 Xxxxxxxx Xxxxxxxxxx Chapter Initials ________
of the Society of Industrial
and Office Realtors, Inc.
(Multi-Tenant Gross Form)
-3-
4
Landlord against all damages which Landlord incurs from Tenant's delay in
vacating the Property. If Tenant does not vacate the Property upon the
expiration or earlier termination of the Lease and Landlord thereafter accepts
rent from Tenant, Tenant's occupancy of the Property shall be a "month-to-month"
tenancy, subject to all of the terms of this Lease applicable to a
month-to-month tenancy, except that the Base Rent then in effect shall be
increased by twenty-five percent (25%).
ARTICLE THREE: BASE RENT
Section 3.01. TIME AND MANNER OF PAYMENT. Upon execution of this Lease,
Tenant shall pay Landlord the Base Rent in the amount stated in Paragraph
1.12(a) above for the first month of the Lease Term. On the first day of the
second month of the Lease Term and each month thereafter, Tenant shall pay
Landlord the Base Rent, in advance, without offset, deduction or prior demand.
The Base Rent shall the Payable at Landlord's address or at such other place as
Landlord may designate in writing.
Section 3.02
Section 3.03. SECURITY DEPOSIT:
(a) Upon the execution of this Lease, Tenant shall deposit with
Landlord a cash Security Deposit in the amount set forth in Section 1.10 above.
Landlord may apply all or part of the Security Deposit to any unpaid rent or
other charges dues from Tenant or to cure any other defaults of Tenant. If
Landlord uses any part of the Security Deposit, Tenant shall restore the
Security Deposit to its full amount within ten (10) days after Landlord's
written request. Tenant's failure to do so shall be a material default under
this Lease. No interest shall be paid on the Security Deposit. Landlord shall
not be required to keep the Security Deposit separate from its other accounts
and no trust relationship is created with respect to the Security Deposit.
Section 3.04. TERMINATION: ADVANCE PAYMENTS. Upon termination of this
Lease under Article Seven (Damages or Destruction), Article Eight (Condemnation)
or any other termination not resulting from Tenant's default, and after Tenant
has vacated the Property in the manner required by this Lease, Landlord shall
refund or credit to Tenant (or Tenant's successor) the unused portion of the
Security Deposit, any advance rent or other advance payments made by Tenant to
Landlord, and any amounts paid for real property taxes and other reserves which
apply to any time periods after termination of the Lease.
0000 Xxxxxxxx Xxxxxxxxxx Chapter Initials ________
of the Society of Industrial
and Office Realtors, Inc.
(Multi-Tenant Gross Form)
-4-
5
ARTICLE FOUR: OTHER CHARGES PAYABLE BY TENANT
Section 4.01. ADDITIONAL RENT. All charges payable by Tenant other than
Base Rent are called "Additional Rent." Unless this Lease provides otherwise,
Tenant shall pay all Additional Rent then due with the next monthly installment
of Base Rent. The term Rent shall mean Base Rent and Additional Rent.
Section 4.02. PROPERTY TAXES.
(a) REAL PROPERTY TAXES. Landlord shall pay the "Base Real Property
Taxes" on the Property during the Lease Term. Base Real Property Taxes are real
property taxes applicable to the Property as shown on the tax xxxx for the Base
Year. Tenant shall pay Landlord the amount, if any, by which the real property
taxes during the Lease Term exceed the Base Real Property Taxes. Subject to
Paragraph 4.02(c), Tenant shall make such payments within fifteen (15) days
after receipt of Landlord's statement showing the amount and computation of such
increase. Landlord shall reimburse Tenant for any real property taxes paid by
Tenant covering any period of time prior to or after the Lease Term.
(b) DEFINITION OF "REAL PROPERTY TAX." "Real property tax" means: (i)
any fee, license fee, license tax, business license fee, commercial rental tax,
levy, charge, assessment, penalty or tax imposed by any taxing authority against
the Property; (ii) any tax on the Landlord's right to receive, or the receipt
of, rent or income from the Property or against Landlord's business of leasing
the Property; (iii) any tax or charge for fire protection, streets, sidewalks,
road maintenance, refuse or other services provided to the Property by any
governmental agency; (iv) any tax imposed upon this transaction or based upon a
re-assessment of the Property due to a change of ownership, as defined by
applicable law, or other transfer of all or part of Landlord's interest in the
Property; and (v) any charge or fee replacing any tax previously included within
the definition of real property tax. "Real property tax" does not, however,
include Landlord's federal or state income, franchise, inheritance or estate
taxes.
(c) JOINT ASSESSMENT. If the Property is not separately assessed,
Landlord shall reasonably determine Tenant's share of the real property tax
payable by Tenant under Paragraph 4.02(a) from the assessor's worksheets or
other reasonably available information. Tenant shall pay such share to Landlord
within fifteen (15) days after receipt of Landlord's written statement.
1988 Southern California Chapter Initials ________
of the Society of Industrial
and Office Realtors, Inc.
(Multi-Tenant Gross Form)
-5-
6
(d) PERSONAL PROPERTY TAXES.
(i) Tenant shall pay all taxes charged against trade fixtures,
furnishings, equipment or any other personal property belonging to Tenant.
Tenant shall try to have personal property taxed separately from the Property.
(ii) If any of Tenant's personal property is taxed with the Property,
Tenant shall pay Landlord the taxes for the personal property within fifteen
(15) days after Tenant receives a written statement from Landlord for such
personal property taxes.
Section 4.03. UTILITIES. Tenant shall pay, directly to the appropriate
supplier, the cost of all natural gas, heat, light, power, telephone and other
utilities and services supplied to the Property. However, if any services or
utilities are jointly metered with other property, Landlord shall make a
reasonable determination of Tenant's proportionate share of the cost of such
utilities and services and Tenant shall pay such share to Landlord within
fifteen (15) days after receipt of Landlord's written statement.
Section 4.04. INSURANCE POLICIES.
(a) LIABILITY INSURANCE. During the Lease Term Tenant shall maintain a
policy of commercial general liability insurance sometimes known as broad form
comprehensive general liability insurance insuring Tenant against liability for
bodily injury, property damage (including loss of use of property) and personal
injury arising out of the operation, use or occupancy of the Property. Tenant
shall name Landlord as an additional insured under such policy. The initial
amount of such insurance shall be One Million Dollars ($1,000,000) per
occurrence and shall be subject to periodic increase based upon inflation,
increased liability awards, recommendation of Landlord's professional insurance
advisers and other relevant factors. The liability insurance obtained by Tenant
under this Paragraph 4.04(a) shall (i) be primary and noncontributing; (ii)
contain cross-liability endorsements; and (iii) insure Landlord against Tenant's
performance under Section 5.05, if the matters giving rise to the indemnity
under Section 5.05 result from the negligence of Tenant. The amount and coverage
of such insurance shall not limit Tenant's liability nor relieve Tenant of any
other obligation under this Lease. Landlord may also obtain comprehensive public
liability insurance in an amount and with coverage determined by Landlord
insuring Landlord against liability arising out of ownership, operation, use or
occupancy of the Property. The policy obtained by Landlord shall not be
contributory and shall not provide primary insurance. Owner and Xxxxxxxx Xxxx
Company and related interests shall be named as additional insureds.
0000 Xxxxxxxx Xxxxxxxxxx Chapter Initials ________
of the Society of Industrial
and Office Realtors, Inc.
(Multi-Tenant Gross Form)
-6-
7
(b) PROPERTY AND RENTAL INCOME INSURANCE. During the Lease Term,
Landlord shall maintain policies of insurance covering loss of or damage to the
Property in the full amount of its replacement value. Such policy shall contain
an Inflation Guard Endorsement and shall provide protection against all perils
included within the classification of fire, extended coverage, vandalism,
malicious mischief, special extended perils (all risk), sprinkler leakage and
any other perils which Landlord deems reasonably necessary. Landlord shall have
the right to obtain flood and earthquake insurance if required by any lender
holding a security interest in the Property. Landlord shall not obtain insurance
for Tenant's fixtures or equipment or building improvements installed by Tenant
on the Property. During the Lease Term, Landlord shall also maintain a rental
income insurance policy, with loss payable to Landlord, in an amount equal to
one year's Base Rent, plus estimated real property taxes and insurance premiums.
Tenant shall be liable for the payment of any deductible amount under Landlord's
or Tenant's insurance policies maintained pursuant to this Section 4.04, in an
amount not to exceed Ten Thousand Dollars ($10,000). Tenant shall not do or
permit anything to be done which invalidates any such insurance policies. Owner
and Xxxxxxxx Xxxx Company and related interests shall be named as additional
insureds.
(c) PAYMENT OF PREMIUMS.
(i) Landlord shall pay the "Base Premiums" for the insurance policies
maintained by Landlord under Paragraph 4.04(b). If the Property has been
previously fully occupied, the "Base Premiums" are the insurance premiums paid
during or applicable to the Base Year. If the Property has not been previously
fully occupied or has been occupied for less than twelve (12) months, the Base
Premiums are the lowest annual premiums reasonably obtainable for the required
insurance for the Property during the Base Year.
(ii) Tenant shall pay Landlord the amount, if any, by which the
insurance premiums for all policies maintained by Landlord under Paragraph
4.04(b) have increased over the Base Premiums, whether such increases result
from the nature of Tenant's occupancy, any act or omission of Tenant, the
requirement of any lender referred to in Article Eleven (Protection of Lenders),
the increased value of the Property or general rate increases. However, if
Landlord substantially increases the amount of insurance carried or the
percentage of insured value after the period during which the Base Premiums were
calculated, Tenant shall pay Landlord the amount of increased premiums which
would have been charged by the insurance carrier if the amount of insurance or
percentage of insured value had not been substantially increased by Landlord.
This adjustment in the amount due from Tenant shall be made only once during the
Lease Term.
1988 Southern California Chapter Initials ________
of the Society of Industrial
and Office Realtors, Inc.
(Multi-Tenant Gross Form)
-7-
8
Thereafter, Tenant shall be obligated to pay the full amount of any additional
increases in the insurance premiums, including increases resulting from any
further increases in the amount of insurance or percentage of insured value.
Subject to Section 4.05, Tenant shall pay Landlord the increases over the Base
Premiums within fifteen (15) days after receipt by Tenant of a copy of the
premium statement or other evidence of the amount due. If the insurance policies
maintained by Landlord cover improvements or real property other than the
Property, Landlord shall also deliver to Tenant a statement of the amount of the
premiums applicable to the Property showing, in reasonable detail, how such
amount was computed. If the Lease Term expires before the expiration of the
insurance period, Tenant's liability shall be pro rated on an annual basis.
(d) GENERAL INSURANCE PROVISIONS.
(i) Any insurance which Tenant is required to maintain under this Lease
shall include a provision which requires the insurance carrier to give Landlord
not less than thirty (30) days' written notice prior to any cancellation or
modification of such coverage.
(ii) If Tenant fails to deliver any policy, certificate or renewal to
Landlord required under this Lease within the prescribed time period or if any
such policy is cancelled or modified during the Lease Term without Landlord's
consent, Landlord may obtain such insurance, in which case Tenant shall
reimburse Landlord for the cost of such insurance within fifteen (15) days after
receipt of a statement that indicates the cost of such insurance.
(iii) Tenant shall maintain all insurance required under this Lease
with companies holding a "General Policy Rating" of A-12 or better, as set forth
in the most current issue of "Best Key Rating Guide." Landlord and Tenant
acknowledge the insurance markets are rapidly changing and that insurance in the
form and amounts described in this Section 4.04 may not be available in the
future. Tenant acknowledges that the insurance described in this Section 4.04 is
for the primary benefit of Landlord. If at any time during the Lease Term,
Tenant is unable to maintain the insurance required under the Lease, Tenant
shall nevertheless maintain insurance coverage which is customary and
commercially reasonable in the insurance industry for Tenant's type of business,
as that coverage may change from time to time. Landlord makes no representation
as to the adequacy of such insurance to protect Landlord's or Tenant's
interests. Therefore, Tenant shall obtain any such additional property or
liability insurance which Tenant deems necessary to protect Landlord and Tenant.
0000 Xxxxxxxx Xxxxxxxxxx Chapter Initials ________
of the Society of Industrial
and Office Realtors, Inc.
(Multi-Tenant Gross Form)
-8-
9
(iv) Unless prohibited under any applicable insurance policies
maintained, Landlord and Tenant each hereby waive any and all rights of recovery
against the other, or against the officers, employees, agents or representatives
of the other, for loss or damage to its property or the property of others under
its control, if such loss or damage is covered by any insurance policy in force
(whether or not described in this Lease) at the time of such loss or damage.
Upon obtaining the required policies of insurance, Landlord and Tenant shall
give notice to the insurance carriers of this mutual waiver of subrogation.
Section 4.05. COMMON AREAS: USE, MAINTENANCE AND COSTS.
(a) COMMON AREAS. As used in this Lease, "Common Areas" shall mean all
areas within the Project which are available for the common use of tenants of
the Project and which are not leased or held for the exclusive use of Tenant or
other tenants, including, but not limited to, parking areas, driveways,
sidewalks, loading areas, access roads, corridors, landscaping and tenanted
areas. Landlord, from time to time, may change the size, location, nature and
use of any of the Common Areas, convert Common Areas into leasable areas,
construct additional parking facilities (including parking structures) in the
Common Areas, to increase or decrease Common Area land and/or facilities. Tenant
acknowledges that such activities may result in convenience to Tenant. Such
activities and changes are permitted if they do not materially affect Tenant's
use of the Property.
(b) USE OF COMMON AREAS. Tenant shall have the nonexclusive right (in
common with other tenants and all others to whom Landlord has granted or may
grant such rights) to use the Common Areas for the purposes intended, subject to
such reasonable rules and regulations as Landlord may establish from time to
time. Tenant shall abide by such rules and regulations and shall use its best
effort to cause others who use the Common Areas with Tenant's express or implied
permission to abide by Landlord's rules and regulations. At any time, Landlord
may close any Common Areas to perform any acts in the Common Areas as, in
Landlord's judgment, are desirable to improve the Project. Tenant shall not
interfere with the rights of Landlord, Tenants or any other person entitled to
use the Common Areas.
(c) SPECIFIC PROVISION RE: VEHICLE PARKING. Tenant shall be entitled to
use the number of vehicle parking spaces in the Project allocated to Tenant in
Section 1.11 of the Lease without paying any additional rent. Tenant's parking
shall not be reserved and shall be limited to vehicles no larger than standard
size automobiles or pickup utility vehicles. Tenant shall not cause large trucks
or other large vehicles to be
0000 Xxxxxxxx Xxxxxxxxxx Chapter Initials ________
of the Society of Industrial
and Office Realtors, Inc.
(Multi-Tenant Gross Form)
-9-
10
parked within the Project or on the adjacent public streets.(1) Temporary
parking of large delivery vehicles in the Project may be permitted by the rules
and regulations established by Landlord. Vehicles shall be parked only in
striped parking spaces and not in driveways, loading areas or other locations
not specifically designated parking. Handicapped spaces shall only be used by
those legally permitted to use them. If Tenant parks more vehicles in
______________________________________ the number set forth in Section 1.11 of
this Lease, such conduct shall be a material breach of this Lease in addition to
Landlord's other remedies under the Lease. Tenant shall pay a daily charge
determined by Landlord for each such additional vehicle.
(d) MAINTENANCE OF COMMON AREAS. Landlord shall maintain the Common
Areas in good order, condition and repair and shall operate the Project, in
Landlord's sole discretion, as a first-class industrial/commercial real property
development. Common Area costs include, but are not limited to, costs and
expenses for the following: gardening and landscaping; utilities; water and
sewage charges; maintenance of signs (other than tenants' signs); premiums for
liability, property damage, fire and other types of casualty insurance on the
Common Areas and worker's compensation insurance, all property taxes and
assessments levied on or attributable to the Common Areas and all Common Area
improvements; all personal property taxes levied on or attributable to personal
property used in connection with the Common Areas; straight-line depreciation or
personal property owned by Landlord which is consumed in the operation or
maintenance of the Common Areas; rental or lease payments paid by Landlord for
rented or leased personal property used in the operation or maintenance of the
Common Areas; fees for required licenses and permits; repairing, resurfacing,
repaving, maintaining, painting, lighting, cleaning, refuse removal, security
and similar terms; reserves for roof replacement and exterior painting and other
appropriate reserves; and a reasonable allowance to Landlord for Landlord's
supervision of the Common Areas (not to exceed five percent (5%) of the gross
rents of the Project for the calendar year). Landlord may cause any or all of
such services to be provided to third parties and the cost of such services
shall be included in Common Area costs. Common Area costs shall not include
depreciation of real property which forms part of the Common Areas.
(e) TENANT'S SHARE AND PAYMENT. See Addendum "A."
(1) Tenant shall be permitted to park a Biosite delivery truck
in the parking area behind the building.
1988 Southern California Chapter Initials ________
of the Society of Industrial
and Office Realtors, Inc.
(Multi-Tenant Gross Form)
-10-
11
Section 4.06. LATE CHARGES. Tenant's failure to pay rent promptly may
cause Landlord to incur unanticipated costs. The exact amount of such costs are
impractical or extremely difficult to ascertain. Such costs may include, but are
not limited to, processing and accounting charges and late charges which may be
imposed on Landlord by any ground lease, mortgage or trust deed encumbering the
Property. Therefore, if Landlord does not receive any rent payment within ten
(10) days after it becomes due, Tenant shall pay Landlord a late charge equal to
ten percent (10%) of the overdue amount. The parties agree that such late charge
represents a fair and reasonable estimate of the costs Landlord will incur by
reach of such late payment.
Section 4.07. INTEREST ON PAST DUE OBLIGATIONS. Any amount owed by
Tenant to Landlord which is not paid when due shall bear interest at the rate of
fifteen percent (15%) per annum from the due date of such amount. However,
interest shall not be payable on late charges to be paid by Tenant under this
Lease. The payment of interest on such amounts shall not excuse or cure any
default by Tenant under this Lease. If the interest rate specified in this Lease
is higher than the rate permitted by law, the interest rate is hereby decreased
to the maximum legal interest rate permitted by law.
Section 4.08.
ARTICLE FIVE: USE OF PROPERTY
Section 5.01. PERMITTED USES. Tenant may use the Property
only for the Permitted Uses set forth in Section 1.06 above.
Section 5.02. MANNER OF USE. Tenant shall not cause or permit the
Property to be used in any way which constitutes a violation of any law,
ordinance, or governmental regulation or order, which annoys or interferes with
the rights of tenants of the Project, or which constitutes a nuisance or waste.
Tenant shall obtain and pay for all permits, including a Certificate of
Occupancy, required for Tenant's occupancy of the Property and shall promptly
take all actions necessary to comply with all applicable statutes, ordinances,
rules, regulations, orders and requirements regulating the use by Tenant of the
Property including the Occupational Safety and Health Act.
Section 5.03. HAZARDOUS MATERIALS. See Addendum "A"
Section 5.04. SIGNS. Tenant shall not place any signs on the Property
without Landlord's prior written consent, subject to Exhibit "B" Sign Criteria.
1988 Southern California Chapter Initials ________
of the Society of Industrial
and Office Realtors, Inc.
(Multi-Tenant Gross Form)
-11-
12
Section 5.05. INDEMNITY. Tenant shall indemnify Landlord against and
hold Landlord harmless from any and all costs, claims or liability arising from:
(a) Tenant's use of the Property; (b) the conduct of Tenant's business or
anything else done or permitted by Tenant to be done in or about the Property,
including any contamination of the Property or any other property resulting from
the presence or use of Hazardous Material caused or permitted by Tenant; (c) any
breach or default in the performance of Tenant's obligations under this Lease;
(d) any misrepresentation or breach of warranty by Tenant under this Lease; or
(e) other acts or omissions of Tenant. Tenant shall defend Landlord against any
such cost, claim or liability at Tenant's expense with counsel reasonably
acceptable to Landlord or, at Landlord's election, Tenant shall reimburse
Landlord for any legal fees or costs incurred by Landlord in connection with any
such claim. As a material part of the consideration to Landlord, Tenant assumes
all risk of damage to property or injury to persons in or about the Property
arising from any cause, and Tenant hereby waives all claims in respect thereof
against Landlord, except for any claim arising out of Landlord's gross
negligence or willful misconduct. As used in this Section , the term "Tenant"
shall include Tenant's employees, agents, contractors and invitees, if
applicable.
Section 5.06. LANDLORD'S ACCESS. Landlord or its agent may enter the
Property at all reasonable times to show the Property to potential buyers,
investors or tenants or other parties; to do any other act or to inspect and
conduct tests in order to monitor Tenant's compliance with all applicable
environmental laws and all laws governing the presence and use of Hazardous
Material; or for any other purpose Landlord deems necessary. Landlord shall give
Tenant prior notice of such entry, except in the case of an emergency. Landlord
may place customer "For Sale" or "For Lease" signs on the Property.
Section 5.07. QUIET POSSESSION. If Tenant pays the rent and complies
with all other terms of this Lease, Tenant may occupy and enjoy the Property for
the full Lease Term, subject to the provisions of this Lease.
ARTICLE SIX: CONDITION OF PROPERTY; MAINTENANCE, REPAIRS AND
ALTERATIONS
Section 6.01. EXISTING CONDITIONS. Tenant accepts the Property in its
condition as of the execution of the Lease, subject to all recorded matters,
laws, ordinances, and governmental regulations and orders. Except as provided
herein, Tenant acknowledges that neither Landlord nor any agent of Landlord has
made any representation as to the condition of the Property or the suitability
of the Property for Tenant's intended use. Tenant represents and warrants that
Tenant has
0000 Xxxxxxxx Xxxxxxxxxx Chapter Initials ________
of the Society of Industrial
and Office Realtors, Inc.
(Multi-Tenant Gross Form)
-12-
13
made its own inspection of and inquiry regarding the condition of the Property
and is not relying on any representations of Landlord or any Broker with respect
thereto. If Landlord or Landlord's Broker has provided a Property Information
Sheet or other Disclosure Statement regarding the Property, a copy is attached
as an exhibit to the Lease.
Section 6.02. EXEMPTION OF LANDLORD FROM LIABILITY. Landlord shall not
be liable for any damage or injury to the person, business (or any loss of
income therefrom), goods, wares, merchandise or other property of Tenant,
Tenant's employees, invitees, customers or any other person in or about the
property, whether such damage or injury is caused by or results from: (a) fire,
steam, electricity, water, gas or rain; (b) the breakage, leakage, obstruction
or other defects of pipes, sprinklers, wires, appliances, plumbing, air
conditioning or lighting fixtures or any other cause; (c) conditions arising in
or about the Property or upon other portions of the Project, or from other
sources of places; or (d) any act or omission of any other tenant of the
Project. Landlord shall not be liable for any such damage or injury even though
the cause of or the means of repairing such damage or injury are not accessible
to Tenant. The provisions of this Section 6.02 shall not, however, exempt
Landlord from liability for Landlord's gross negligence or willful misconduct.
Section 6.03. LANDLORD'S OBLIGATIONS. Subject to the provisions of
Article Seven (Damage or Destruction) and Article Eight (Condemnation),and
except for damage caused by any act or omission of Tenant, or Tenant's
employees, agents, contractors or invitees, Landlord shall keep the foundation,
roof and structural portions of exterior walls of the improvements on the
Property in good order, condition and repair. However, Landlord shall not be
obligated to maintain or repair windows, doors, plate glass or the surfaces of
walls. Landlord shall not be obligated to make any repairs under this Section
6.03 until a reasonable time after receipt of a written notice from Tenant of
the need for such repairs.(2) Tenant waives the benefit of any present or future
law which might give Tenant the right to repair the Property at Landlord's
expense or to terminate the lease because of the condition of the Property.
Section 6.04. TENANT'S OBLIGATIONS.
(a) Except as provided in Section 6.03, Article Seven (Damage or
Destruction) and Article Eight (Condemnation), Tenant shall keep all portions of
the Property (including structural, nonstructural, interior, systems and
equipment) in good order, condition and repair (including interior repainting
and
--------
(2) Including flood prevention measures.
0000 Xxxxxxxx Xxxxxxxxxx Chapter Initials ________
of the Society of Industrial
and Office Realtors, Inc.
(Multi-Tenant Gross Form)
-13-
14
refinishing, as needed). If any portion of the Property or any system or
equipment in the Property which Tenant is obligated to repair cannot be fully
repaired or restored, Tenant shall promptly replace such portion of the Property
or system or equipment in the Property, regardless of whether the benefit of
such replacement extends beyond the Lease Term; but if the benefit or useful
life of such replacement extends beyond the Lease Term (as such term may be
extended by exercise of any options), the useful life of such replacement shall
be prorated over the remaining portion of the Lease Term (as extended), and
Tenant shall be liable only for that portion of the cost which is applicable to
the Lease Term (as extended). Tenant shall maintain a preventive maintenance
contract providing for the regular inspection and maintenance of the heating and
air conditioning system by a licensed heating and air conditioning contractor.
Landlord shall have the right, upon written notice to Tenant, to undertake the
responsibility for preventive maintenance of the heating and air conditioning
system at Tenant's expense. In addition, Tenant shall, at Tenant's expense,
repair any damage to the roof, foundation or structural portions of walls caused
by Tenant's acts or omissions. It is the intention of Landlord and Tenant that,
at all times during the Lease Term, Tenant shall maintain the Property in an
attractive, first-class and fully operative condition.
(b) Tenant shall fulfill all of Tenant's obligations under this Section
6.04 at Tenant's sole expense. If Tenant fails to maintain, repair or replace
the Property as required by this Section 6.04, Landlord may, upon ten (10) days'
prior notice to Tenant (except that no notice shall be required in the case of
an emergency), enter the Property and perform such maintenance or repair
(including replacement, as needed) on behalf of Tenant. In such case, Tenant
shall reimburse Landlord for all costs incurred in performing such maintenance
or repair immediately upon demand.
Section 6.05. ALTERATIONS, ADDITIONS AND IMPROVEMENTS.
(a) Tenant shall not make any alterations, additions, or improvements
to the Property without Landlord's prior written consent,(3) except for
nonstructural alterations which do not exceed Ten Thousand Dollars ($10,000) in
cost cumulatively over the Lease Term and which are not visible from the outside
of any building of which the Property is part. Landlord may require Tenant to
provide demolition and/or lien and completion bonds in form and amount
satisfactory to Landlord. Tenant shall promptly remove any alterations,
additions, or improvements constructed in violation of this Paragraph 6.05(a)
upon Landlord's written
--------
(3) Which consent shall not be unreasonably withheld or delayed.
0000 Xxxxxxxx Xxxxxxxxxx Chapter Initials ________
of the Society of Industrial
and Office Realtors, Inc.
(Multi-Tenant Gross Form)
-14-
15
request. All alterations, additions, and improvements shall be done in a good
and workmanlike manner, in conformity with all applicable laws and regulations,
and by a contractor approved by Landlord. Upon completion of any such work,
Tenant shall provide Landlord with "as built" plans, copies of all construction
contracts, and proof of payment for all labor and materials.
(b) Tenant shall pay when due all claims for labor and material
furnished to the Property. Tenant shall give Landlord at least twenty (20) days'
prior written notice of the commencement of any work on the Property, regardless
of whether Landlord's consent to such work is required. Landlord may elect to
record and post notices of nonresponsibility on the Property.
Section 6.06. CONDITION UPON TERMINATION. Upon the termination of the
Lease, Tenant shall surrender the Property to Landlord, broom clean and in the
same condition as received except for ordinary wear and tear which Tenant was
not otherwise obligated to remedy under any provision of this Lease. However,
Tenant shall not be obligated to repair any damage which Landlord is required to
repair under Article Seven (Damage or Destruction). In addition, Landlord may
require Tenant to remove any alterations, additions or improvements (whether or
not made with Landlord's consent) prior to the expiration of the Lease and to
restore the Property to its prior condition, all at Tenant's expense. All
alterations, additions and improvements which Landlord has not required Tenant
to remove shall become Landlord's property and shall be surrendered to Landlord
upon the expiration or earlier termination of the Lease, except that Tenant may
remove any of Tenant's machinery or equipment which can be removed without
material damage to the Property. Tenant shall repair, at Tenant's expense, any
damage to the property caused by the removal of any such machinery or equipment.
In no event, however, shall Tenant remove any of the following materials or
equipment (which shall be deemed Landlord's property) without Landlord's prior
written consent; any power wiring or power panels; lighting or lighting
fixtures; wall coverings; drapes, blinds or other window coverings; carpets or
other floor coverings; heaters; air conditioners or any other heating or air
conditioning equipment; fencing or security gates; or other similar building
operating equipment and decorations.
Notwithstanding the provisions outlined in Section (s) 6.05 and 6.06, Landlord
shall notice Tenant at the time they provide consent which alterations and
improvements Tenant must remove from the Premises at Lease Termination.
1988 Southern California Chapter Initials ________
of the Society of Industrial
and Office Realtors, Inc.
(Multi-Tenant Gross Form)
-15-
16
ARTICLE SEVEN: DAMAGE OR DESTRUCTION
If the Premises are destroyed in whole or in part from any cause,
Landlord may elect either to restore the Premise or to terminate this Lease.
Landlord shall notify Tenant of its election within sixty (60) days after the
casualty.
(a) RESTORATION. If Landlord elects to restore, Landlord shall promptly
restore the Premises to their prior condition provided that such restoration can
be completed within one hundred eighty (180) days (which period shall be
extended one day for each day of delay resulting from causes beyond Landlord's
control) after Landlord's notice of election of tenant. Tenant hereby expressly
waives the provisions of Subdivision 2 of Section 1932 and Subdivision 4 of
Section 1933 of the California Civil Code. Rent shall xxxxx from the date of
casualty in the proportion that Tenant is actually deprived of use of the
Premises.
(b) TERMINATION. If Landlord elects to terminate, rent shall terminate
as of the date of the casualty, and from the date of the notice of election the
parties shall have no further obligation under this Lease except for obligation
which arose prior to the casualty.
ARTICLE EIGHT: CONDEMNATION
If all or any portion of the Property is taken under the power of
eminent domain or sold under the threat of that power [all of which are called
"Condemnation"), this Lease shall terminate as to the part taken or sold on the
date the condemning authority takes title or possession, whichever comes first.
If more than twenty percent (20%) of the floor area of the building in which the
Property is located, or which is located on the Property, is taken, either
Landlord or Tenant may terminate this Lease as of the date the condemning
authority takes title or possession, by delivering written notice to the other
within ten (10) days after receipt of written notice of such taking (or in the
absence of such notice, within ten (10) days after the condemning authority
takes title or possession). If neither Landlord nor Tenant terminates this
Lease, this Lease shall remain in effect as to the portion of the Property not
taken, except that the Base Rent and Additional Rent shall be reduced in
proportion to the reduction in the floor area of the Property. Any Condemnation
award or payment shall be distributed in the following order: (a) first, to any
ground lessor, mortgagee or beneficiary under a deed of trust encumbering the
Property, the amount of its interest in the Property; (b) second, to Tenant,
only the amount of any award specifically designated of such award, whether as
compensation for reduction in the value of the leasehold, the taking of the fee,
or otherwise. If this Lease is not terminated, Landlord
1988 Southern California Chapter Initials ________
of the Society of Industrial
and Office Realtors, Inc.
(Multi-Tenant Gross Form)
-16-
17
shall repair any damage to the Property caused by the Condemnation, except that
Landlord shall not be obligated to repair any damage for which Tenant has been
reimbursed by the condemning authority. If the severance damages received by
Landlord are not sufficient to pay for such repair, Landlord shall have the
right to either terminate this Lease or make such repair at Landlord's expense.
ARTICLE NINE: ASSIGNMENT AND SUBLETTING
Section 9.01. LANDLORD'S CONSENT REQUIRED. No portion of the Property
or of Tenant's interest in this Lease may be acquired by any other person or
entity, whether by sale, assignment, mortgage, sublease, transfer, operation of
law, or act of Tenant, without Landlord's prior written consent, except as
provided in Section 9.02 below. Landlord has the right to grant or withhold its
consent as provided in Section 9.05 below. Any attempted transfer without
consent shall be void and shall constitute a non-curable breach of this Lease.
If Tenant is a partnership, any cumulative transfer of more than twenty percent
(20%) of the partnership interests shall require Landlord's consent.
Section 9.02. TENANT AFFILIATE. Tenant may assign this Lease or
sublease the Property, without Landlord's consent, to any corporation which
controls, is controlled by or is under common control with Tenant, or to any
corporation resulting from the merger of or consolidation with Tenant ("Tenant's
Affiliate"). In such case, any Tenant's Affiliate shall assume in writing all of
Tenant's obligations under this Lease.
Section 9.03. NO RELEASE OF TENANT. No transfer permitted by this
Article Nine, whether with or without Landlord's consent, shall release Tenant
or change Tenant's primary liability to pay the rent and to perform all other
obligations of Tenant under this Lease. Landlord's acceptance of rent from any
other person is not a waiver of any provision of this Article Nine. Consent to
one transfer is not a consent to any subsequent transfer. If Tenant's transferee
defaults under this Lease, Landlord may proceed directly against Tenant without
pursuing remedies against the transferee. Landlord may consent to subsequent
assignments or modifications of this Lease by Tenant's transferee, without
notifying Tenant or obtaining its consent. Such action shall not relieve
Tenant's liability under this Lease.
Section 9.04. OFFER TO TERMINATE. If Tenant desires to assign the Lease
or sublease the Property, Tenant shall have the right to offer, in writing, to
terminate the Lease as of a date specified in the offer. If Landlord does not so
elect, the Lease shall continue in effect until otherwise terminated and
0000 Xxxxxxxx Xxxxxxxxxx Chapter Initials ________
of the Society of Industrial
and Office Realtors, Inc.
(Multi-Tenant Gross Form)
-17-
18
the provisions of Section 9.05 with respect to any proposed transfer shall
continue to apply.
Section 9.05. LANDLORD'S CONSENT.
(a) Tenant's request for consent to any transfer described in Section
9.01 shall set forth in writing the details of the proposed transfer, including
the name, business and financial condition of the prospective transferee,
financial details of the proposed transfer (e.g., the term of and the rent and
security and deposit payable under any proposed assignment or sublease), and any
other information Landlord deems relevant. Landlord shall have the right to
withhold consent, if reasonable, or to grant consent, based on the following
factors: (i) the business of the proposed assignee or subtenant and the proposed
use of the Property; (ii) the net worth and financial reputation of the proposed
assignee or subtenant; (iii) Tenant's compliance with all of its obligations
under the Lease; and (iv) such other factors as Landlord may reasonably deem
relevant. If Landlord objects to a proposed assignment solely because of the net
worth and/or financial reputation of the proposed assignee, Tenant may
nonetheless sublease (but not assign), all or a portion of the Property to the
proposed transferee, but only on the other terms of the proposed transfer.
(b) If Tenant assigns or subleases, the following shall apply:
(i) Tenant shall pay to Landlord as Additional Rent under the
Lease the Landlord's Share (stated in Section 1.14) of the Profit
(defined below) on such transaction as and when received by Tenant,
unless Landlord gives written notice to Tenant and the assignee or
subtenant that Landlord's Share shall be paid by the assignee or
subtenant to Landlord directly. The "Profit" means (A) all amounts paid
to Tenant for such assignment or sublease, including "key" money,
monthly rent in excess of the monthly rent payable under the Lease, and
all fees and other consideration paid for the assignment sublease,
including fees under any collateral agreements, less (B) costs and
expenses directly incurred by Tenant in connection with the execution
and performance of such assignment or sublease for real estate broker's
commissions and costs of renovation or construction of tenant
improvements required under such assignment or sublease. Tenant is
entitled to recover such costs and expenses before Tenant is obligated
to pay the Landlord's Share to Landlord. The Profit in the case of a
sublease of less than all the Property is the rent allocable to the
subleased space as a percentage on a square footage basis.
0000 Xxxxxxxx Xxxxxxxxxx Chapter Initials ________
of the Society of Industrial
and Office Realtors, Inc.
(Multi-Tenant Gross Form)
-18-
19
(ii) Tenant shall provide Landlord a written statement
certifying all amounts to be paid from any assignment of sublease of
the Property within thirty (30) days after the transaction
documentation is signed, and Landlord may inspect Tenant's books and
records to verify the accuracy of such statement. On written request,
Tenant shall promptly furnish to Landlord copies of all the transaction
documentation, all of which shall be certified by Tenant to be
complete, true and correct. Landlord's receipt of Landlord's Share
shall not be a consent to any further assignment or subletting. The
breach of Tenant's obligation under this Paragraph 9.05(b) shall be a
material default to the Lease.
Section 9.06. NO MERGER. No merger shall result from Tenant's sublease
of the Property under this Article Nine, Tenant's surrender of this Lease or the
termination of this Lease in any other manner. In any such event, Landlord may
terminate any or all subtenancies or succeed to the interest of Tenant as
sublandlord under any or all subtenancies.
ARTICLE TEN: DEFAULTS; REMEDIES
Section 10.01. COVENANTS AND CONDITIONS. Tenant's performance of each
of Tenant's obligations under this Lease is a condition as well as a covenant.
Tenant's right to continue in possession of the Property is conditioned upon
such performance. Time is of the essence in the performance of all covenants and
conditions.
Section 10.02. DEFAULTS. Tenant shall be in material
default under this Lease:
(a) If Tenant abandons the Property and if Tenant's
vacation of the Property results in the cancellation of any
insurance described in Section 4.04;
(b) If Tenant fails to pay rent or any other charge when
due;
(c) If Tenant fails to perform any of Tenant's non-monetary obligations
under this Lease for a period of thirty (30) days after written notice from
Landlord; provided that if more than thirty (30) days are required to complete
such performance, Tenant shall not be in default if Tenant commences such
performance within the thirty (30) day period and thereafter diligently pursues
its completion. However, Landlord shall not be required to give such notice if
Tenant's failure to perform constitutes a non-curable breach of this Lease. The
notice required by this Paragraph is intended to satisfy any and all notice
requirements imposed by law on Landlord and is not in addition to any such
requirement.
0000 Xxxxxxxx Xxxxxxxxxx Chapter Initials ________
of the Society of Industrial
and Office Realtors, Inc.
(Multi-Tenant Gross Form)
-19-
20
(d) (i) If Tenant makes a general assignment or general arrangement for
the benefit of creditors; (ii) if a petition for adjudication of bankruptcy or
for reorganization or rearrangement is filed by or against Tenant and is not
dismissed within thirty (30) days; (iii) if a trustee or receiver is appointed
to take possession of substantially all of Tenant's assets located at the
Property or of Tenant's interest in this Lease and possession is not restored to
Tenant within thirty (30) days; or (iv) if substantially all of Tenant's assets
located at the Property or of Tenant's interest in this Lease is subjected to
attachment, execution or other judicial seizure which is not discharged within
thirty (30) days. If a court of competent jurisdiction determines that any of
the acts described in this subparagraph (d) is not a default under this Lease,
and a trustee is appointed to take possession (or if Tenant remains a debtor in
possession) and such trustee or Tenant transfers Tenant's interest hereunder,
then Landlord shall receive, as Additional Rent, the excess, if any, of the rent
(or any other consideration) paid in connection with such assignment or sublease
over the rent payable by Tenant under this Lease.
(e) If any guarantor of the Lease revokes or otherwise terminates, or
purports to revoke or otherwise terminate, any guaranty of all or any portion of
Tenant's obligations under the Lease. Unless otherwise expressly provided, no
guaranty of the Lease is revocable.
Section 10.03. REMEDIES. On the occurrence of any material default by
Tenant, Landlord may, at any time thereafter with or without notice or demand
and without limiting Landlord in the exercise of any right or remedy which
Landlord may have:
(a) Terminate Tenant's right to possession of the Property by any
lawful means, in which case this Lease shall terminate and Tenant shall
immediately surrender possession of the Property to Landlord. In such event,
Landlord shall be entitled to recover from Tenant all damages incurred by
Landlord by reason of Tenant's default, including (i) the worth at the time of
the award of the unpaid Base Rent, Additional Rent and other charges which
Landlord has earned at the time of the termination; (ii) the worth at the time
of the award of the amount by which the unpaid Base Rent, Additional Rent and
other charges which Landlord would have earned after termination until the time
of the award exceeds the amount of such rental loss that Tenant proves Landlord
could have reasonably avoided; (iii) the worth at the time of the award of the
amount by which the unpaid Base Rent, Additional Rent and other charges which
Tenant would have paid for the balance of the Lease Term after the time of award
exceeds the amount of such rental loss that Tenant proves Landlord could have
reasonably avoided; and (iv) any other amount necessary to compensate Landlord
for all the detriment proximately caused by Tenant's failure to perform its
0000 Xxxxxxxx Xxxxxxxxxx Chapter Initials ________
of the Society of Industrial
and Office Realtors, Inc.
(Multi-Tenant Gross Form)
-20-
21
obligations under the Lease or which in the ordinary course of things would be
likely to result therefrom, including, but not limited to, any cost or expenses
Landlord incurs in maintaining or preserving the Property after such default,
the cost of recovering possession of the Property, expenses of reletting,
including necessary renovation or alteration of the Property, Landlord's
reasonable attorneys' fees incurred in connection therewith, and any real estate
commission paid or payable. As used in subparts (i) and (ii) above, the "worth
at the time of the award" is computed by allowing interest on unpaid amounts at
the rate of fifteen percent (15%) per annum, or such lesser amount as may then
be the maximum lawful rate. As used in subpart (iii) above, the worth at the
time of the award is computed by discounting such amount at the discount rate of
the Federal Reserve Bank of San Francisco at the time of the award, plus one
percent (1%). If Tenant has abandoned the Property, Landlord shall have the
option of (i) retaking possession of the Property and recovering from Tenant the
amount specified in this Paragraph 10.03(a), or (ii) proceeding under Paragraph
10.03(b);
(b) Maintain Tenant's right to possession, in which case this Lease
shall continue in effect whether or not Tenant has abandoned the Property. In
such event, Landlord shall be entitled to enforce all of Landlord's rights and
remedies under this Lease, including the right to recover the rent as it becomes
due.
(c) Pursue any other remedy now or hereafter available to Landlord
under the laws or judicial decisions of the state in which the Property is
located.
Section 10.04. REPAYMENT OF "FREE" RENT. If this Lease provides for a
postponement of any monthly rental payments, a period of "free" rent or other
rent concession, such postponed rent or "free" rent is called the "Abated Rent."
Tenant shall be credited with having paid all of the Abated Rent on the
expiration of the Lease Term only if Tenant has fully, faithfully and punctually
performed all of Tenant's obligations hereunder, including the payment of all
rent (other than the Abated Rent) and all other monetary obligations and the
surrender of the Property in the physical condition required by this Lease.
Tenant acknowledges that its right to receive credit for the Abated Rent is
absolutely conditioned upon Tenant's full, faithful and punctual performance of
its obligations under this Lease. If Tenant defaults and does not cure within
any applicable grace period, the Abated Rent shall immediately become due and
payable in full and this Lease shall be enforced as if there were no such rent
abatement or other rent concession. In such case Abated Rent shall be calculated
based on the full initial rent payable under this Lease.
1988 Southern California Chapter Initials ________
of the Society of Industrial
and Office Realtors, Inc.
(Multi-Tenant Gross Form)
-21-
22
Section 10.05. AUTOMATIC TERMINATION. Notwithstanding any other term or
provision hereof to the contrary, the Lease shall terminate on the occurrence of
any act which affirms the Landlord's intention to terminate the Lease as
provided in Section 10.03 hereof, including the filing of an unlawful detainer
action against Tenant. On such termination, Landlord's damages for default shall
include all cost and fees, including reasonable attorneys' fees that Landlord
incurs in connection with the filing, commencement, pursuing and/or defending of
any action in any bankruptcy court or other court with respect to the Lease; the
obtaining of relief from any stay in bankruptcy restraining any action to evict
Tenant; or the pursuing of any action with respect to Landlord's right to
possession of the Property. All such damages suffered (apart from Base Rent and
other rent payable hereunder) shall constitute pecuniary damages which must be
reimbursed to Landlord prior to assumption of the Lease by Tenant or any
successor to Tenant in any bankruptcy or other proceeding.
Section 10.06. CUMULATIVE REMEDIES. Landlord's exercise of any right or
remedy shall not prevent it from exercising any other right or remedy.
ARTICLE ELEVEN: PROTECTION OF LENDERS
Section 11.01. SUBORDINATION. Landlord shall have the right to
subordinate this Lease to any ground lease, deed of trust or mortgage
encumbering the Property, any advances made on the security thereof and any
renewals, modifications, consolidations, replacements or extensions thereof,
whenever made or recorded. Tenant shall cooperate with Landlord and any lender
which is acquiring a security interest in the Property or the Lease. Tenant
shall execute such further documents and assurances as such lender may require,
provided that Tenant's obligations under this Lease shall not be increased in
any material way (the performance of ministerial acts shall not be deemed
material), and Tenant shall not be deprived of its rights under this Lease.
Tenant's right to quiet possession of the Property during the Lease Term shall
not be disturbed if Tenant pays the rent and performs all of Tenant's
obligations under this Lease and is not otherwise in default. If any ground
lessor, beneficiary or mortgagee elects to have this Lease prior to the lien of
its ground lease, deed of trust or mortgage and gives written notice thereof to
Tenant, this Lease shall be deemed prior to such ground lease, deed of trust or
mortgage whether this Lease is dated prior or subsequent to the date of said
ground lease, deed of trust or mortgage or the date of recording thereof.
Section 11.02. ATTORNMENT. If Landlord's interest in the Property is
acquired by any ground lessor, beneficiary under a deed of trust, mortgagee or
purchase at a foreclosure sale,
1988 Southern California Chapter Initials ________
of the Society of Industrial
and Office Realtors, Inc.
(Multi-Tenant Gross Form)
-22-
23
Tenant shall attorn to the transferee of or successor to Landlord's interest in
the Property and recognize such transferee or successor as Landlord under this
Lease. Tenant waives the protection of any statute or rule of law which gives or
purports to give Tenant any right to terminate this Lease or surrender
possession of the Property upon the transfer of Landlord's interest.
Section 11.03. SIGNING OF DOCUMENTS. Tenant shall sign and deliver any
instrument or documents necessary or appropriate to evidence any such attornment
or subordination or agreement to do so. If Tenant fails to do so within ten (10)
days after written request, Tenant hereby makes, constitutes and irrevocably
appoints Landlord, or any transferee or successor of Landlord, the
attorney-in-fact of Tenant to execute and deliver any such instrument or
document.
Section 11.04. ESTOPPEL CERTIFICATES.
(a) Upon Landlord's written request, Tenant shall execute, acknowledge
and deliver to Landlord a written statement certifying: (i) that none of the
terms or provisions of this Lease has been changed (or if they have been
changed, stating how they have been changed); (ii) that this Lease has not been
cancelled or terminated, (iii) the last date of payment of the Base Rent and
other charges and the time period covered by such payment; (iv) that Landlord is
not in default under this Lease (or if Landlord is claimed to be in default,
stating why); and (v) such other representations or information with respect to
Tenant or the Lease as Landlord may reasonably request or which any prospective
purchaser or encumbrancer of the Property may require. Tenant shall deliver such
statement to Landlord within ten (10) days after Landlord's request. Landlord
may give any such statement by Tenant to any prospective purchaser or
encumbrancer of the Property. Such purchaser or encumbrancer may rely
conclusively upon such statement as true and correct.
(b) If Tenant does not deliver such statement to Landlord within such
ten (10) day period, Landlord, and any prospective purchaser or encumbrancer,
may conclusively presume and rely upon the following facts: (i) that the terms
and provisions of this Lease have not been changed except as otherwise
represented by Landlord; (ii) that this Lease has not been cancelled or
terminated except as otherwise represented by Landlord; (iii) that not more than
one month's Base Rent or other charges have been paid in advance; and (iv) that
Landlord is not in default under the Lease. In such event Tenant shall be
estopped from denying the truth of such facts.
Section 11.05. TENANT'S FINANCIAL CONDITION. Within ten
(10) says after written request from Landlord, Tenant shall
deliver to Landlord such financial statements as Landlord
1988 Southern California Chapter Initials ________
of the Society of Industrial
and Office Realtors, Inc.
(Multi-Tenant Gross Form)
-23-
24
reasonably requires to verify the net worth of Tenant or any assignee subtenant,
or guarantor of Tenant. In addition, Tenant shall deliver to any lender
designated by Landlord any financial statements required by such lender to
facilitate the financing or refinancing of the Property. Tenant represents and
warrants to Landlord that each such financial statement is a true and accurate
statement as of the date of such statement. All financial statements shall be
confidential and shall be used only for the purposes set forth in this Lease.
ARTICLE TWELVE. LEGAL COSTS
Section 12.01. LEGAL PROCEEDINGS. If Tenant or Landlord shall be in
breach or default under this Lease, such party (the "Defaulting Party") shall
reimburse the other party (the "Nondefaulting Party") upon demand for any costs
or expenses that the Nondefaulting Party incurs in connection with any breach or
default of the Defaulting Party under this Lease, whether or not suit is
commenced or judgment entered. Such costs shall include legal fees and costs
incurred for the negotiation of a settlement, enforcement of rights or
otherwise. Furthermore, if any action for breach of or to enforce the provisions
of this Lease is commenced, the court in such action shall award to the party in
whose favor a judgment is entered, a reasonable sum as attorneys' fees and
costs. The losing party in such action shall pay such attorneys' fees and costs.
Tenant shall also indemnify Landlord against and hold Landlord harmless from all
costs, expenses, demands and liability Landlord may incur if Landlord becomes or
is made a party to any claim or action (a) instituted by Tenant against any
third party, or by any third party against Tenant, or by or against any person
holding any interest under or using the Property by license of or agreement with
Tenant; (b) for foreclosure of any lien for labor or material furnished to or
for Tenant or such other person; (c) otherwise arising out of or resulting from
any act or transaction of Tenant or such other person; or (d) necessary to
protect Landlord's interest under this Lease in a bankruptcy proceeding, or
other proceeding under Title 11 of the United States Code, as amended. Tenant
shall defend Landlord against any such claim or action at Tenant's expense with
counsel reasonably acceptable to Landlord or, at Landlord's election, Tenant
shall reimburse Landlord for any legal fees or costs Landlord incurs in any such
claim or action.
Section 12.02. LANDLORD'S CONSENT. Tenant shall pay Landlord's
reasonable attorneys' fees incurred in connection with Tenant's request for
Landlord's consent under Article Nine (Assignment and Subletting), or in
connection with any other act which Tenant proposes to do and which required
Landlord's consent.
0000 Xxxxxxxx Xxxxxxxxxx Chapter Initials ________
of the Society of Industrial
and Office Realtors, Inc.
(Multi-Tenant Gross Form)
-24-
25
ARTICLE THIRTEEN. MISCELLANEOUS PROVISIONS.
Section 13.01. NON-DISCRIMINATION. Tenant promises, and it is a
condition to the continuance of this Lease, that there will be no discrimination
against, or segregation of, any person or group of persons on the basis of race,
color, sex, creed, national origin or ancestry in the leasing, transferring,
occupancy, tenure or use of the Property or any portion thereof.
Section 13.02. LANDLORD'S LIABILITY; CERTAIN DUTIES.
(a) As used in this Lease, the term "Landlord" means only the current
owner or owners of the fee title to the Property or Project or the leasehold
estate under a ground lease of the Property or Project at the time in question.
Each Landlord is obligated to perform the obligations of Landlord under this
Lease only during the time such Landlord owns such interest or title. Any
Landlord who transfers its title or interest is relieved of all liability with
respect to the obligations of Landlord under this Lease to be performed on or
after the date of transfer. However, each Landlord shall deliver to its
transferee all funds that Tenant previously paid if such funds have not yet been
applied under the terms of this Lease.
(b) Tenant shall give written notice of any failure by Landlord to
perform any of its obligations under this Lease to Landlord and to any ground
lessor, mortgagee or beneficiary under any deed of trust encumbering the
property whose name and address have been furnished to Tenant in writing.
Landlord shall not be in default under this Lease unless Landlord (or such
ground lessor, mortgagee or beneficiary) fails to cure such nonperformance
within thirty (30) days after receipt of Tenant's notice. However, if such
nonperformance reasonably requires more than thirty (30) days to cure, Landlord
shall not be in default if such cure is commenced within such thirty (30) day
period and thereafter diligently pursued to completion.
(c) Notwithstanding any term or provision herein to the contrary, the
liability of Landlord for the performance of its duties and obligations under
this Lease is limited to Landlord's interest in the Property and the Project,
and neither the Landlord nor its partners, shareholders, officers or other
principals shall have any personal liability under this Lease.
Section 13.03. SEVERABILITY. A determination by a court of competent
jurisdiction that any provision of this Lease or any part thereof is illegal or
unenforceable shall not cancel or invalidate the remainder of such provision of
this Lease, which shall remain in full force and effect.
Section 13.04. INTERPRETATION. The captions of the
Articles or Sections of this Lease are to assist the parties in
1988 Southern California Chapter Initials ________
of the Society of Industrial
and Office Realtors, Inc.
(Multi-Tenant Gross Form)
-25-
26
reading this Lease and are not a part of the terms or provisions of this Lease.
Whenever required by the context of this Lease, the singular shall include the
plural and the plural shall include the singular. The masculine, feminine and
neuter genders shall each include the other. In any provisions relating to the
conduct, acts or omissions of Tenant, the term "Tenant" shall include Tenant's
agents, employees, contractors, invitees, successors or others using the
Property with Tenant's expressed or implied permission.
Section 13.05. INCORPORATION OF PRIOR AGREEMENTS; MODIFICATIONS. This
Lease is the only agreement between the parties pertaining to the lease of the
Property and no other agreements are effective. All amendments to this Lease
shall be in writing and signed by all parties. Any other attempted amendment
shall be void.
Section 13.06. NOTICES. All notices required or permitted under this
Lease shall be in writing and shall be personally delivered or sent by certified
mail, return receipt requested, postage prepaid. Notices to Tenant shall be
delivered to the address specified in Section 1.03 above, except that upon
Tenant's taking possession of the property, the Property shall be Tenant's
address for notice purposes. Notices to Landlord shall be delivered to the
address specified in Section 1.02 above. All notices shall be effective upon
delivery. Either party may change its notice address upon written notice to the
other party.
Section 13.07. WAIVERS. All waivers must be in writing and signed by
the waiving party. Landlord's failure to enforce any provision of this Lease or
its acceptance of rent shall not be a waiver and shall not prevent Landlord from
enforcing that provision or any other provision of this Lease in the future. No
statement on a payment check from Tenant or in a letter accompanying a payment
check shall be binding on Landlord. Landlord may, with or without notice to
Tenant, negotiate such check without being bound to the conditions of such
statement.
Section 13.08. NO RECORDATION. Tenant shall not record this Lease
without prior written consent from Landlord. However, either Landlord or Tenant
may require that a "Short Form" memorandum of this Lease executed by both
parties be recorded. The party requiring such recording shall pay all transfer
taxes and recording fees.
Section 13.09. BINDING EFFECT: CHOICE OF LAW. This Lease
binds any party who legally acquires any rights or interest in
this Lease from Landlord or Tenant. However, Landlord shall
have no obligation to Tenant's successor unless the rights or
interest of Tenant's successor are acquired in accordance with
1988 Southern California Chapter Initials ________
of the Society of Industrial
and Office Realtors, Inc.
(Multi-Tenant Gross Form)
-26-
27
the terms of this Lease. The laws of the state in which the Property is located
shall govern this Lease.
Section 13.10. CORPORATE AUTHORITY; PARTNERSHIP AUTHORITY. If Tenant is
a corporation, each person signing this Lease on behalf of Tenant represents and
warrants that he has full authority to do so and that this Lease binds the
corporation. Within thirty (30) days after this Lease is signed, Tenant shall
deliver to Landlord a certified copy of a resolution of Tenant's Board of
Directors authorizing the execution of this Lease or other evidence of such
authority reasonably acceptable to Landlord. If Tenant is a partnership, each
person or entity signing this Lease for Tenant represents and warrants that he
or it is a general partner of the partnership, that he or it has full authority
to sign for the partnership and that this Lease binds the partnership and all
general partners of the partnership. Tenant shall give written notice to
Landlord of any general partner's withdrawal or addition. Within thirty (30)
days after this Lease is signed, Tenant shall deliver to Landlord a copy of
Tenant's recorded statement of partnership or certificate of limited
partnership.
Section 13.11. JOINT AND SEVERAL LIABILITY. All parties signing this
Lease as Tenant shall be jointly and severally liable for all obligations of
Tenant.
Section 13.12. FORCE MAJEURE. If Landlord cannot perform any of its
obligations due to events beyond Landlord's control, the time provided for
performing such obligations shall be extended by a period of time equal to the
duration of such events. Events beyond Landlord's control include, but are not
limited to, acts of God, war, civil commotion, labor disputes, strikes, fire,
floor or other casualty, shortages of labor or material, government regulation
or restriction and weather conditions.
Section 13.13. EXECUTION OF LEASE. This Lease may be executed in
counterparts and, when all counterpart documents are executed, the counterparts
shall constitute a single binding instrument. Landlord's delivery of this Lease
to Tenant shall not be deemed to be an offer to lease and shall not be binding
upon either party until executed and delivered by both parties.
Section 13.14. SURVIVAL. All representations and warranties of Landlord
and Tenant shall survive the termination of this Lease.
Landlord and Tenant have signed this Lease at the place and on the
dates specified adjacent to their signatures below and have initialled all
Riders which are attached to or incorporated by reference in this Lease.
1988 Southern California Chapter Initials ________
of the Society of Industrial
and Office Realtors, Inc.
(Multi-Tenant Gross Form)
-27-
28
"TENANT"
BIOSITE DIAGNOSTICS, INC.
a California corporation
By: /s/ Xxx Xxxxxxxxxxx
___________________
Xxx Xxxxxxxxxxx
Title: President
-------------------------
Date: _________________________
"LANDLORD"
TCEP II PROPERTIES LIMITED PARTNERSHIP, a Texas limited
partnership
By: TCEP II Holdings, L.L.C., a Texas liability company, its
General Partner
By: Xxxxxxxx Xxxx Equity Partners II, Ltd., a Texas
limited partnership, a Member
By: Xxxxxxxx Xxxx Ventures #2, Ltd., a Texas limited
partnership, its General Partner
By: Xxxxxxxx Xxxx Ventures #3, Ltd., a Texas limited
partnership, its General Partner
By: Xxxxxxxx Xxxx Ventures Management Company,
I Inc., a Texas corporation, its General
Partner
By: /s/ Xxxxxxx X. ?
_______________________________
Title: Vice President
_______________________________
Date: 8/12/96
_______________________________
1988 Southern California Chapter Initials ________
of the Society of Industrial
and Office Realtors, Inc.
(Multi-Tenant Gross Form)
-28-
29
Biosite Diagnostics
Addendum A
Page 1
ADDENDUM "A"
This Addendum is to that certain Lease dated July 26, 1996, by and
between Biosite Diagnostics, Inc., a California Corporation ("Tenant") and TCEP
II Properties Limited Partnership, A Texas Limited Partnership ("Landlord").
The printed portion of the Lease is hereby modified and supplemented as
follows. Wherever there is any conflict between this Addendum and the printed
portion of the Lease, the provisions of the Addendum are paramount and the Lease
shall be construed accordingly.
1. Insert the following as Section 4.05 (e) of the Lease:
Section 4.05(e) "TENANT'S SHARE AND PAYMENT.
In order that the Rent payable during the Term reflect any increase in
Common Area Costs, Tenant agrees to pay to Landlord as Rent, Tenant's
Proportionate Share of all increases in costs, expenses and obligations
attributable to the Project and its operation, all as provided below.
If, during any calendar year during the Term, Common Area Costs exceed
the Common Area Costs for the Base Year, Tenant shall pay to Landlord, in
addition to the Base Rent and all other payments due under this Lease, an amount
equal to Tenant's Proportionate Share of such excess Common Area Costs in
accordance with the provisions of this Section 4.05(e).
Tenant's Proportionate Share of Common Area Costs shall be payable by Tenant to
Landlord as follows:
(a) Beginning with the calendar year following the Base Year and for
each calendar year thereafter ("Comparison Year"), Tenant shall pay Landlord an
amount equal to Tenant's Proportionate Share of the Common Area Costs incurred
by Landlord in the Comparison Year which exceeds the total amount of Common Area
Costs payable by Landlord for the Base Year. This excess is referred to as the
"Excess Expense."
(b) To provide for current payments of Excess Expenses, Tenant shall,
at Landlord's request, pay as additional rent during each Comparison Year, an
amount equal to Tenant's Proportionate Share of the Excess Expense payable
during such Comparison Year, as estimated by Landlord from time to time.
Tenant's pro rata share shall be calculated by dividing the square foot area of
the Property, as set forth in Section 1.04
0000 Xxxxxxxx Xxxxxxxxxx Chapter Initials ________
of the Society of Industrial
and Office Realtors, Inc.
(Multi-Tenant Gross Form)
-1-
30
Biosite Diagnostics
Addendum A
Page 2
of the Lease, by the aggregated square foot area of the Project which is leased
or held for lease by tenants, as of the date on which the computation is made.
Tenant's initial pro rata share is set out in Paragraph 1.12(b). Any changes in
the Common Area costs and/or the aggregate area of the Project leased or held
for lease during the Lease Term shall be effective on the first day of the month
after such charge occurs. Landlord may, at Landlord's election, estimate in
advance and charge to Tenant as Common Area costs, all real property taxes for
which Tenant is liable under Section 4.02 of the Lease, all insurance premiums
for which Tenant is liable under Section 4.04 of the Lease, all maintenance and
repair costs for which Tenant is liable under Section 6.04 of the Lease, and all
other Common Area costs payable by Tenant hereunder. Such payments shall be made
in monthly installments, commencing on the first day of the month following the
month in which Landlord notifies Tenant of the amount it is to pay hereunder and
continuing until the first day of the month following the month in which
Landlord gives Tenant a new notice of estimated Excess Expenses. It is the
intention hereunder to estimate from time to time the amount of the Excess
Expenses for each Comparison Year and Tenant's Proportionate Share thereof, and
then to make an adjustment in the following year based on the actual Excess
Expenses incurred for that Comparison Year.
(c) On or before April 1 of each Comparison Year after the first
Comparison Year (or as soon thereafter as is practical), Landlord shall deliver
to Tenant a statement setting forth Tenant's Proportionate Share of the Excess
Expenses for the preceding Comparison Year. If Tenant's Proportionate Share of
the actual Excess Expenses for the previous Comparison Year exceeds the total of
the estimated monthly payments made by Tenant for such year, Tenant shall pay
Landlord the amount of the deficiency within ten (10) days of the receipt of the
statement. If such total exceeds Tenant's Proportionate Share of the actual
Excess Expenses for such Comparison Year, then Landlord shall credit against
Tenant's next ensuing monthly installment(s) of additional rent an amount equal
to the difference until the credit is exhausted. If a credit is due from
Landlord on the Expiration Date, Landlord shall pay Tenant the amount of the
credit. The obligations of Tenant and Landlord to make payments required under
this Section 4.05(e) shall survive the Expiration Date.
(d) Tenant's Proportionate Share of Excess Expenses in any Comparison
Year having less than 365 days shall be appropriately prorated.
0000 Xxxxxxxx Xxxxxxxxxx Chapter Initials ________
of the Society of Industrial
and Office Realtors, Inc.
(Multi-Tenant Gross Form)
-2-
31
Biosite Diagnostics
Addendum A
Page 3
(e) If any dispute arises as to the amount of any additional rent due
hereunder, Tenant shall have the right after reasonable notice and at reasonable
times to inspect Landlord's accounting records at Landlord's accounting office
and, if after such inspection Tenant still disputes the amount of additional
rent owed, a certification as to the proper amount shall be made by Landlord's
certified public accountant, which certification shall be final and conclusive.
Tenant agrees to pay the cost of such certification unless it is determined that
Landlord's original statement overstated Common Area Costs by more than five
percent (5%).
2. Insert the following language as Section S.03 (a) of the Lease:
Section 5.03(a) "HAZARDOUS MATERIALS
With respect to any release of toxic or hazardous substances or wastes
of the premises occurring on or after the date of this Lease and caused by or
resulting from the negligent acts or omissions or willful misconduct of Tenant,
its employees, authorized agents, or contractors, and which release or other
condition violates the provisions of, or necessitates any removal, treatment, or
other remedial action under, any past, present, or future federal, state or
local statute or ordinance or any regulation, directive, or requirement of any
governmental authority with jurisdiction relating to protection of the
environment, Tenant agrees to defend, indemnify, and hold harmless Landlord, its
partners. employees, from and against any and all losses, claims, liabilities,
damages, demands, fines, costs and expenses (including reasonable attorney's
fees and legal expenses) arising out of or resulting therefrom. The provisions
of this Paragraph shall survive the termination or expiration of this Lease and
the surrender of the premises by Tenant, with respect to releases, events, or
conditions occurring prior to such termination, expiration, or surrender. With
respect to any release of toxic or hazardous substances or wastes or other
condition of the premises occurring prior to or after the date of this Lease and
caused by or resulting from the negligent acts or omissions or willful
misconduct of Landlord, its employees, authorized agents, or contractors, and
which release or other condition violates the provisions of, or necessitates any
removal, treatment, or other remedial action under, any past present, or future
federal, state or local statute or ordinance or any regulation, directive, or
requirement of any governmental authority with jurisdiction relating to
protection of the environment, Landlord agrees to defend, indemnify, and hold
harmless Tenant and its employees from and
0000 Xxxxxxxx Xxxxxxxxxx Chapter Initials ________
of the Society of Industrial
and Office Realtors, Inc.
(Multi-Tenant Gross Form)
-3-
32
Biosite Diagnostics
Addendum A
Page 4
against any and all losses, claims, liabilities, damages, demands, fines, costs
and expenses (including reasonable attorneys' fees and legal expenses) arising
out of or resulting therefrom.
3. Insert the following language as Section 5.03 (b) of the Lease:
Section 5.03 (b) "RELEASE REPORTING REQUIREMENTS
This is to inform you of your obligations to properly report unauthorized
releases of hazardous substances to appropriate authorities. If you do not
report such releases, a recently enacted law imposes an independent obligation
on property owner's to report these releases to the proper authorities. Because
of this new law, the owners of the property from whom you lease space have asked
that all tenants be notified of this reporting obligation. This is not intended
to, nor does it imply, that a release of hazardous substances has recently
occurred in, on, under or about your leased premises.
Federal and California law require that an unauthorized release of hazardous
substances be reported to federal and state agencies within twenty four (24)
hours of the occurrence. Historically, this reporting obligation has been
limited to the party responsible for causing the release. Recently, California
enacted legislation which strengthens this reporting obligation (California
Health & Safety Code Section 25359.4). Under Section 25359.4, among other
things, new reporting requirements are imposed upon the owners of property on
which the release occurred. Thus the owners of the property can be held
responsible for not reporting a release, even though the owners did not cause
the release. Penalties for not reporting a release can be as high as $25,000 per
day per violation {Health & Safety Code Section 2539.4(d).} These penalties can
be assessed against the party responsible for the release or the property owner.
Your lease requires that you operate your business in accordance with applicable
laws. Accordingly, you are responsible for determining your reporting
obligations if an unauthorized release of hazardous substances occurs in, on,
under or about your leaved premises. Should you be required to report such a
release to a government agency, you should also immediately notify your Property
Manager. If Xxxxxxxx Xxxx, as manager of the property, becomes aware of an
unauthorized release and, in its sole judgment, determines that a reporting
obligation has been triggered, and if after consultation with you, or efforts
1988 Southern California Chapter Initials ________
of the Society of Industrial
and Office Realtors, Inc.
(Multi-Tenant Gross Form)
-4-
33
Biosite Diagnostics
Addendum A
Page 5
to consult with you, it is determined that no report has been made by you,
Xxxxxxxx Xxxx will report the release on behalf of the property owners warning
you as the sole responsible party. In addition to the foregoing, and as required
by your lease, any unauthorized release of a hazardous substance in, on, under
or about the property must be disclosed to Xxxxxxxx Xxxx, whether or not this
release must be reported to an outside government agency.
In any situation where a hazardous substance release may have impacted the soil
beneath or around your leased space, or may have impacted the interior of your
leased space, the following additional steps should be undertaken. These steps
are:
Contact one or more qualified environmental consultants and request a
COST PROPOSAL to assess the extent of the impact. A copy of this
proposal should be forwarded to Xxxxxxxx Xxxx for our review and
comments. New work will be authorized without our prior review and
approval. Once a consultant has been retained, a WORKPLAN should be
prepared detailing the actions to be taken to assess the extent of the
impact or the remediation method, as appropriate. A copy of this
WORKPLAN should be forwarded to Xxxxxxxx Xxxx for our review and
comments. No work, in particular no soil testing or other intrusive
work, will be authorized without our prior review and approval.
Notify Xxxxxxxx Xxxx when the work is scheduled to begin. A consultant
may be retained by the owners to oversee the work being conducted by
your consultant.
Conduct the work and provide to Xxxxxxxx Xxxx a copy of a DRAFT report
documenting the problem, the extent of the impact, the procedures used
to address the release, and a conclusion by the consultant on the
adequacy of the remediable action taken. Since the report will become a
component of the permanent records of the property, Xxxxxxxx Xxxx'x
comments and approval are an integral part of this process.
Provide to Xxxxxxxx Xxxx a copy of the FINAL report
We appreciate your attention to the contents in this Section 5.3. Xxxxxxxx Xxxx,
as Property Manager, will be pleased to answer any questions you may have, or to
assist you in any way we can in your efforts to comply with these requirements.
The obligation to comply, however, is yours. If you have any questions, please
contact J. Xxxxxxx Xxxxx at (000) 000-0000.
0000 Xxxxxxxx Xxxxxxxxxx Chapter Initials ________
of the Society of Industrial
and Office Realtors, Inc.
(Multi-Tenant Gross Form)
-5-
34
Biosite Diagnostics
Addendum A
Page 6
Xx. Xxxxx will be glad to discuss the contents of this Section
with you.
4. Insert the following language as Section 6.01(a) of the Lease:
Section 6.01(a). "EXISTING CONDITIONS.
Landlord shall warrant that the HVAC is in good working condition for
the first twelve (12) months of the Lease Term.
5. Insert the following language as Section 14 of the Lease:
Section 14. "OPTION TO RENEW.
Subject to Tenant's compliance and performance of its Lease
obligations, Tenant shall be granted two (2) one (1) year Option(s) to Renew.
Tenant shall notify Landlord in writing of its intent to exercise said Option(s)
at least one hundred twenty (120) days prior to the expiration of the initial
Lease Term or the first Option to Renew. All Terms and Conditions shall remain
the same with the exception of Base Rent which shall be as follows:
October 1, 1998 - September 30, 1999 (First one-year option) - $12,229.70 per
month. October 1, 1999 - September 30, 2000 (Second one-year option) -
$12,753.83 per month
6. Insert the following language as Section 15 of the Lease:
Section 15. "CONSTRUCTION OF LEASED PREMISES
A. Tenant Improvement Allowance. Landlord shall provide Tenant an
allowance (The 'Tenant Improvement Allowance') which shall be applied to the
cost of the construction of Tenant Improvements (the 'Tenant Improvements') in
the Premises (excluding Tenant's trade fixtures) and which shall be in an amount
of Thirty-Four Thousand Nine Hundred Forty-Two Dollars ($34,942) which is based
on 17,471 rentable square feet multiplied by $2.00 per rentable square foot.
Tenant shall be responsible for the cost of all Tenant Improvements in excess of
the Tenant Improvement Allowance. As used herein, the phrase 'cost of the
construction of Tenant Improvements' shall mean and refer to all costs expended
by Tenant relative to the construction of Tenant Improvements, which shall
include, but shall not be limited to, costs of equipment, material and labor;
contractor's field overhead and fees; cost of preparation of
1988 Southern California Chapter Initials ________
of the Society of Industrial
and Office Realtors, Inc.
(Multi-Tenant Gross Form)
-6-
35
Biosite Diagnostics
Addendum A
Page 7
preliminary space plans and specifications and working drawings; governmental
agency fees relating to said construction; costs of any requirements regarding
construction which are imposed by any federal, state or local governmental
entity or agency which are not reflected in the approved Plans and
Specifications for the Tenant Improvements; sales and use taxes (but not real
property taxes); permits; plan check fees; bonds; demolition; and other costs
directly related to the construction of the Tenant Improvements. Upon completion
of the Tenant Improvements, Tenant shall provide for Landlord a certification by
Tenant of the cost of such construction and a copy of the final unconditional
certificate of occupancy for the Premises issued by the city of San Diego and a
certification by Tenant's general contractor that the Tenant Improvements have
been constructed in a good and workmanlike manner in accordance with the Plans
and Specifications as defined in subparagraph B, below, and that all sums owing
to subcontractors, materialmen, laborers and other persons having mechanics'
lien rights have been paid (or, if any payment is in good faith disputed, have
been adequately bonded). Landlord shall reimburse Tenant the amount of the
construction costs, up to $34,942, within twenty (20) days of receipt and
approval of the items listed above. Landlord may withhold up to fifteen percent
(15%) of the Tenant Improvement Allowance until thirty-five (35) days after the
recordation of a notice of completion to help ensure that all mechanic's lien
claims have been paid or provided for. No part of the Tenant Improvement
Allowance may be expended for costs other than the costs of the construction of
Tenant Improvements which shall be deemed Leasehold Improvements. Tenant shall
be permitted to remove all trade fixtures that they install into the Premises.
B. Construction of Tenant Improvements. Subject to Section 6.01(a),
Tenant accepts the Premises in their present condition and shall be solely
responsible for the construction of the Tenant Improvements. Tenant shall
improve the Premises in accordance with the Plans and Specifications and such
requirements and upon such conditions as Landlord may impose in accordance with
normal standards currently in use by Landlord (the 'Work'). Tenant shall prepare
a preliminary layout with Landlord's cooperation and for Landlord's approval,
which approval shall not be unreasonably withheld or delayed. Landlord shall use
its best efforts to notify Tenant of Landlord's approval or disapproval of the
layout within five (5) days of Landlord's receipt. Upon approval of the layout,
Tenant shall prepare working drawings adequate in detail to perform the Work and
shall have necessary mechanical (sprinkler, air conditioning, heating,
electrical and plumbing) drawings prepared in consultation with a mechanical
engineer covering mechanical
1988 Southern California Chapter Initials ________
of the Society of Industrial
and Office Realtors, Inc.
(Multi-Tenant Gross Form)
-7-
36
Biosite Diagnostics
Addendum A
Page 8
elements of the Work. The drawings, together with the preliminary layout, are
referred to as the 'Plans and Specifications.' All costs of preparing the Plans
and Specifications and performing the Work in excess of the Tenant Improvement
Allowance shall be at Tenant's sole cost and expense. Any review or approval by
Landlord of the Plans and Specifications shall be done without any
representation or warranty whatsoever to Tenant with respect to the adequacy,
correctness or efficiency thereof or otherwise. The Work shall be performed
pursuant to a general contract with a reputable licensed contractor with
experience in constructing tenant improvements in similar buildings in San Diego
County. Tenant shall select the contractor subject to Landlord's approval, which
shall not be unreasonably withheld or delayed. Landlord shall have no liability
for any defects or deficiencies in the Work.
C. Entry To Perform Work. Landlord shall permit Tenant and Tenant's
agents to enter the Premises prior to the Commencement Date in order that Tenant
may do the Work. Tenant agrees that any such entry into and occupation of the
Premises shall be deemed to be under all of the terms, covenants, conditions and
provisions of this Lease except as to the covenant to pay the Rent, and further
agrees that Landlord shall not be liable in any way for any injury, loss or
damage which may occur to any of the Work and installations made in the Premises
or to any property placed therein prior to the Commencement of the Term, the
same being at Tenant's sole risk. During construction of Tenant's Work, Tenant
shall obtain and maintain standard 'course of construction' insurance in form
and content reasonably acceptable to Landlord naming Landlord (and, at
Landlord's request, any mortgagee of the Land and/or Building) as additional
insured.
D. Representatives. Landlord appoints Landlord's Representative to act
for Landlord and Tenant appoints Tenant's Representative to act for Tenant in
all matters covered by this Section 15. All inquiries, requests, instructions,
authorizations and other communications with respect to the matters covered by
this Section will be made to Landlord's Representative or Tenant's
Representative, as the case may be. Either party may change its Representative
at any time with three (3) days' prior written notice to the other party.
Tenant's Representative: Xxxxxxx Xxxxxx
Landlord's Representative: Xxxxxx Xxxxx
1988 Southern California Chapter Initials ________
of the Society of Industrial
and Office Realtors, Inc.
(Multi-Tenant Gross Form)
-8-
37
Biosite Diagnostics
Addendum A
Page 9
E. Landlord's Approval. The Plans and Specifications (including any
revisions requested by Tenant) shall be subject to Landlord's approval, which
shall not be unreasonably withheld and shall be given (or denied, with the
reasons therefor specified) within five (5) days after receipt of Tenant's
request therefor. Without limiting the foregoing, it shall not be unreasonable
for Landlord to disapprove the Plans and Specifications if they require work
which:
(a) exceeds or affects the structural integrity of the Building, or any
part of the heating, ventilating, air conditioning, plumbing, mechanical,
electrical, communication or other systems of the Building;
(b) is not approved by the holder of any mort&age or deed of trust
encumbering the Building at the time the work is proposed;
(c) would not be approved by a prudent owner of property similar to the
Building;
(d) violates any agreement which affects the Building or binds
Landlord;
(e) Landlord reasonably believes will increase the cost of operation or
maintenance of any of the systems of the Building;
(f) Landlord reasonably believes will reduce the market value of the
Premises or the Building at the end of the Term;
(g) does not conform to applicable building code or is not approved by
any governmental authority with jurisdiction over the Premises; or
(h) does not conform to a quality consistent with other tenant
improvements constructed using Building Standard materials within the Building.
G. Completion Of Improvements; Commencement Date. The Term shall
commence on the specified Commencement Date or such earlier date as the work has
been substantially completed and Tenant has occupied the Premises. (If the Term
commences before the specified Commencement Date, the Termination Date shall be
twenty-four (24) months following the actual Commencement Date and the parties
shall prepare and sign a memorandum setting forth such dates.)
1988 Southern California Chapter Initials ________
of the Society of Industrial
and Office Realtors, Inc.
(Multi-Tenant Gross Form)
-9-
38
Biosite Diagnostics
Addendum A
Page 10
F. Compliance with ADA. Landlord and Tenant are aware that a new
federal law, commonly known as the Americans With Disabilities Act ("ADA"), has
recently become effective. The parties agree that Landlord shall be responsible
for making any modifications to the Land and/or Building which are necessary to
comply with the ADA, and Tenant shall be responsible for ensuring that Tenant's
Work (and any alterations thereto made by Tenant) complies with the ADA. Each
party agrees to cooperate with the other in a reasonable manner to comply with
the ADA.
BIOSITE Diagnostics, Inc. a California corporation
By: /s/ Xxx X. Xxxxxxxxxxxx
__________________________
Xxx X. Xxxxxxxxxxxx
Title: President
Date: ___________________________
TCEP II PROPERTIES LIMITED PARTNERSHIP, a Texas limited
partnership
By: TCEP II Holdings, L.L.C., a Texas liability company, its
General Partner
By: Xxxxxxxx Xxxx Equity Partners II, Ltd., a Texas
limited partnership, a Member
By: Xxxxxxxx Xxxx Ventures #2, Ltd., a Texas limited
partnership, its General Partner
By: Xxxxxxxx Xxxx Ventures #3, Ltd., a Texas limited
partnership, its General Partner
By: Xxxxxxxx Xxxx Ventures Management Company,
Inc., a Texas corporation, its General
Partner
By: /s/ Xxxxxxx Xxxxxx
____________________________
Title: Vice President
____________________________
Date: 8/12/96
____________________________
1988 Southern California Chapter Initials ________
of the Society of Industrial
and Office Realtors, Inc.
(Multi-Tenant Gross Form)
-10-
39
Biosite Diagnostics
Addendum A
Page 11
EXHIBIT "A"
GRAPHICS OMITTED
0000 Xxxxxxxx Xxxxxxxxxx Chapter Initials ________
of the Society of Industrial
and Office Realtors, Inc.
(Multi-Tenant Gross Form)
-11-
40
Biosite Diagnostics
Addendum A
Page 12
EXHIBIT "B"
SIGN CRITERIA
Sign Criteria establishes the uniform policies for all lessee sign
identification. These criteria have been established for the purpose of
maintaining the overall appearance of the project. Conformance will be strictly
enforced. Any sign installed that does not conform to the sign criteria will be
brought into conformity at the expense of the Lessee.
A. GENERAL REQUIREMENTS
1. A drawing of all proposed Lessee's signs indicating copy,
sizes, color, and locations shall be submitted to the Xxxxxxxx
Xxxx Company, prior to fabrication of any sign.
2. Xxxxxxxx Xxxx Company shall approve all copy and/or logo
design and color prior to the fabrication of the sign, which
approval shall occur in a timely manner and shall not be
unreasonably withheld.
3. Xxxxxxxx Xxxx Company shall direct the placement of
all Lessee's signs and the method of attachment to the
building.
4. Lessee shall be responsible for the fulfillment of
requirements for this criteria.
5. Sign fabrication and installation shall be paid for by
the Lessee.
B. GENERAL SPECIFICATIONS
1. Lessee shall be allowed one (1) corporate name and
logo sign per building regardless of size of
occupancy.
2. Lessee shall be allowed to install signs identifying
non-reserved parking, shipping, receiving, and other areas of
the Premises which require proper identification for third
parties conducting business with Lessee, as well as other
signs that are required pursuant to Federal, State or Local
Municipal Laws and Regulations.
0000 Xxxxxxxx Xxxxxxxxxx Chapter Initials ________
of the Society of Industrial
and Office Realtors, Inc.
(Multi-Tenant Gross Form)
-12-
41
Biosite Diagnostics
Addendum A
Page 13
3. All signs to be of individual letters and logos
consistent with the style, color and size of all
others in the Industrial Park. No cans, frames or
panels are permitted.
4. No electrical or audible signs will be allowed.
5. Upon the removal of any sign, any damage to the building will
be prepared by the Lessee, except for any damage resulting
from negligent or otherwise improper removal of a sign by a
party acting under the direction of Lessor.
6. Except as provided herein, no advertising placards, banners,
pennants, names, insignia, trademarks, or other descriptive
material shall be affixed or maintained upon any external
automated machine, glass panes of the building, landscaped
areas, streets or parking areas, except for signs indicating
the Premises are protected by security services.
Please contact Xxxxxxxx Xxxx Company for approvals of your signs.
1988 Southern California Chapter Initials ________
of the Society of Industrial
and Office Realtors, Inc.
(Multi-Tenant Gross Form)
-13-
42
Biosite Diagnostics
Addendum A
Page 14
EXHIBIT "C"
ASBESTOS NOTIFICATION FOR
SORRENTO WEST INDUSTRIAL PARK
California law requires landlords to notify tenants regarding the presence of
construction materials containing asbestos in their workplace. This letter is to
inform you about asbestos-containing construction materials ("ACCM"), at
Sorrento West Industrial Park, located at 00000 Xxxxxxx Xxxxxx in the City of
Xxx Xxxxx, Xxxxxxxxxx 00000.
A survey of the building was conducted by an environmental consultant, H+GCL,
during August and September 1993 in order to determine whether
asbestos-containing construction materials were present. H+GCL took bulk samples
of all suspected ACCM in the building, which then were analyzed by the polarized
light microscopy method recommended by the U.S. Environmental Protection Agency.
The survey report indicated that in various areas throughout Sorrento West
Industrial Park, the following building materials were identified to contain
five to thirty percent chyrsotile asbestos: drywall mud/tape compound, floor
tile and mastic, linoleum sheeting, and mastic on the underside of sinks.
H+GCL's final assessment of the building indicated that the ACCM is non-friable
and in good condition. The portions of the survey report that deal with ACCM in
Sorrento West Industrial Park, including laboratory results with respect to bulk
samples of suspected ACCM, are available for your review from Xx. Xxx Xxxxx,
Environmental Project Manager at Environmental Asset Services, Inc, 0000 X.
Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000 from 8:00 to 5:00 p.m.
each business day.
EPA has found that as long as asbestos-containing construction materials remain
undisturbed, exposure is unlikely and building occupants are unlikely to be
subject to health hazards from these materials. Your assistance in avoiding any
disturbance of the ACCM in the building is requested. Xxx Xxxxx must authorize
any repair or renovation work in areas containing ACCM. Additionally, Xxx Xxxxx
has to authorize all work that may disturb or damage floor tile, sheeting,
drywall or sinks in the building. During any period when work is being done in
areas containing ACCM, the areas will be closed to all but those workers
involved in the project. Warning signs will be posted, and building occupants
and other users must comply with instructions regarding access to the area.
0000 Xxxxxxxx Xxxxxxxxxx Chapter Initials ________
of the Society of Industrial
and Office Realtors, Inc.
(Multi-Tenant Gross Form)
-14-
43
Biosite Diagnostics
Addendum A
Page 15
EXHIBIT "D"
DISCLOSURE NOTICE TO TENANTS
REGARDING SORRENTO WEST INDUSTRIAL PARK
In January of 1995, portions of the Sorrento West Industrial Park were flooded
as a result of inordinately heavy rains during that month. Any damage which may
have occurred to the property has since been repaired or is under repair. The
owner is currently working in conjunction with other property owners in the area
to finance and obtain approval for flood control improvements which will prevent
future flooding in the event of another series of heavy rains.
1988 Southern California Chapter Initials ________
of the Society of Industrial
and Office Realtors, Inc.
(Multi-Tenant Gross Form)
-15-
