EXHIBIT 10.19
[California Net Lease]
LEASE AGREEMENT
THIS LEASE AGREEMENT is made this 7 day of November, 1995, between SCI
Limited Partnership - I ("Landlord"), and the Tenant named below.
Tenant: CVC Holdings, Inc., a Delaware
Corporation
Tenant's representative, Xxxxxx Xxxxxxx
address, and phone no.: CVC Holdings, Inc.
00000 Xxxx Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Premises: An approximately 14,400 square foot
portion of a 48,400 square foot
building located at 0000 Xxxxxxxxxx
Xxxxx, Xxxxxxx, XX, as shown on
Exhibit A.
Project: Gateway Corporation Center II
Building: H
Tenant's Proportionate Share
of Project: 7.96%
Tenant's Proportionate Share
of Building: 29.75%
Lease Term: Beginning on the Commencement Date
and ending on the last day of the 60th
full calendar month thereafter,
subject to possible extension in
accordance with .
Commencement Date: Estimated to be November 15, 1995,
contingent upon substantial completion
by Landlord of Initial Improvement as
set forth in Addendum 3.
Initial Monthly Base Rent: $10,368.00 as adjusted pursuant to
Addendum 1.
Initial Estimated Monthly 1. Utilities: N/A
Operating Expense Payments:
(estimates only and subject 2. Common Area Charges: $576.00
to adjustment to actual
costs and expenses according 3. Taxes: $1,540.80
to the provisions of this
Lease) 4. Insurance: $43.20
5. Others: N/A
Initial Estimated Monthly
Operating Expense Payments: $2,160.00
Initial Monthly Base Rent and
Operating Expense Payments: $12,528.00
Security Deposit: $10,656.00
Broker: Xxxx Xxxx, Spectrum Interests
Addenda: Addendum 1,2,3,4, and 5; Exhibits A,
B, and C
1. Granting Clause. In consideration of the obligation of Tenant to pay
rent as herein provided and in consideration of the other terms, covenants, and
conditions hereof, Landlord leases to Tenant, and Tenant takes from Landlord,
the Premises, to have and to hold for the Lease Term, subject to the terms,
covenants and conditions of this Lease.
2. Acceptance of Premises. Tenant shall accept the Premises in its
condition as of the Commencement Date, subject to Addendum 3 and to all
applicable laws, ordinances, regulations, covenants and
restrictions. Landlord has made no representation or warranty as to the
suitability of the Premises for the conduct of Tenant's business, and Tenant
waives any implied warranty that the Premises are suitable for Tenant's intended
purposes. Except as provided in Xxxxxxxxx 00, Xxxxxxxxx 3 (as to Landlord's
construction and delivery of the Initial Improvements in compliance with all
Legal Requirements), and Addendum 3 (as to latent defects only), in no event
shall Landlord have any obligation to repair any defects in the Premises or
remedy any limitation on its use. The taking of possession of the Premises shall
be conclusive evidence that Tenant accepts the Premises and that the Premises
were in good condition at the time possession was taken except for items that
are Landlord's responsibility under Paragraph 10 and any punchlist items agreed
to in writing by Landlord and Tenant.
3. Use. The Premises shall be used only for the purpose of receiving,
storing, shipping and selling (but limited to wholesale sales) products,
materials and merchandise made and/or distributed by Tenant, and, subject to
local law, for administrative offices, and for such other lawful purposes as may
be incidental thereto, and for product and process demonstration, light
applications development, and moderate manufacturing uses which will be
permitted to Tenant upon Tenant's receipt from the City of Fremont of a Class
H-6 Hazardous Materials permit, in each case, in connection with its business of
manufacturing and selling semiconductor processing equipment and other
technology product, and for such other uses as shall be both permitted by law
and agreed to in writing by Landlord. Tenant shall not conduct or give notice of
any auction, liquidation, or going out of business sale on the Premises. Tenant
will use the Premises in a careful, safe and proper manner and will not commit
waste thereon. Tenant shall not permit any objectionable or unpleasant odors,
smoke, dust, gas, noise, or vibrations to emanate from the Premises, or take any
other action that would constitute a nuisance or would disturb, unreasonably
interfere with, or endanger Landlord or any tenants of the Project. Outside
storage, including without limitation, storage of trucks and other vehicles, is
prohibited without Landlord's prior written consent. Tenant, at its sole
expense, shall use and occupy the Premises in compliance with all laws,
including, without limitation, the Americans With Disabilities Act, orders,
judgments, ordinances, regulations, codes, directive permits, licenses,
covenants and restrictions now or hereafter applicable to the Premises
(collectively, "Legal Requirements"). The Premises shall not be used as a place
of public accommodation under the Americans With Disabilities Act or similar
state statutes or local ordinances or any regulations promulgated thereunder,
all as may be amended from time to time. Landlord shall construct the Initial
Improvements and deliver the Premises to Tenant in compliance with all Legal
Requirements; provided, however, that Landlord shall have no such obligation
with respect to Tenant's "clean-room," the construction of which shall be
Tenant's responsibility; and provided further, that, subject to the immediately
following sentence, should any portion of the Premises or the Initial
Improvements constructed by Landlord fail to comply with all Legal Requirements,
Tenant's sole remedy shall be to have Landlord correct such non-complying
portions at Landlord's sole cost and expense, Tenant shall, at its expense, make
any alterations or modifications, within or without the Premises, that are
required by Legal Requirements related to Tenant's use or occupation of the
Premises. Tenant will not use or permit the Premises to be used for any purpose
or in any manner that would void Tenant's or Landlord's insurance, increase the
insurance risk, or cause the disallowance of any sprinkler credits. If any
increase in the cost of any insurance on the Premises or the Project is caused
by Tenant's use or occupation of the Premises, or because Tenant vacates the
premises, then Tenant shall pay the amount of such increase to Landlord.
Landlord acknowledges that Tenant intends to construct a "clean-room" on the
Premises, and agrees to be reasonable in exercising its approval authority,
subject to the requirements of this Lease Agreement, including without
limitation in Paragraphs 12 and 21; Landlord need not be reasonable, however,
regarding whether Tenant shall be obligated to remove the "clean-room"
improvements at the end of the Lease Term.
4. Base Rent. Tenant shall pay Base Rent in the amount set forth above.
The first month's Base Rent, the Security Deposit, and the first monthly
installment of estimated Operating Expenses (as hereafter defined) shall be due
and payable on the date hereof, and Tenant promises to pay to Landlord in
advance, without demand, deduction or set-off, monthly installments of Base Rent
on or before the first day of each calendar month succeeding the Commencement
Date. Payments of Base Rent for any fractional calendar month shall be prorated.
All payments required to be made by Tenant to Landlord hereunder shall be
payable at such address as Landlord may specify from time to time by written
notice delivered in accordance herewith. the obligation of Tenant to pay Base
Rent and other sums to Landlord and the obligations of Landlord under this Lease
are independent obligations. Tenant shall have no right at any time to xxxxx,
reduce, or set-off any rent due hereunder except as may be expressly provided in
this Lease. Tenant waives and releases all statutory liens and offset rights as
to rent. If Tenant is delinquent in any monthly installment of Base Rent or of
estimated Operating Expenses beyond 5 days after the due date thereof, Tenant
shall pay to Landlord on demand a late charge equal to 5 percent of such
delinquent sum. Tenant shall not be required to pay the late charge until
Landlord has given Tenant 5 days written notice of the delinquent payment (which
may be given at any time during the delinquency); provided, however, that such
notice shall not be required more than once in any 12-month period or 3 times
over the term of the Lease. The provisions for such late charge shall be in
addition to all of Landlord's other rights and remedies hereunder or at law and
shall not be construed as a penalty.
5. Security Deposit. The Security Deposit shall be held by Landlord as
security for the performance of Tenant's obligations under this Lease. The
Security Deposit is not an advance rental deposit or a measure of Landlord's
damages in case of Tenant's default. Upon each occurrence of an Event of Default
(hereinafter defined), Landlord may use all or part of the Security Deposit to
pay delinquent payments due under this Lease, and the cost of any damage,
injury, expense or liability caused by such Event of Default, without prejudice
to any other remedy provided herein or provided by law. Tenant shall pay
Landlord on demand the amount that will restore the Security Deposit to its
original amount. Landlord's obligation respecting the Security Deposit is that
of a debtor, not a trustee; no interest shall accrue thereon. The Security
Deposit shall be the property of Landlord, but shall be paid
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to Tenant when Tenant's obligations under this Lease have been completely
fulfilled. Landlord shall be released from any obligation with respect to the
Security Deposit upon transfer of this Lease and the Premises and the Security
Deposit to a person or entity assuming Landlord's obligations under this
Paragraph 5.
6. Operating Expense Payments. During each month of the Lease Term, on the
same date that Base Rent is due, Tenant shall pay Landlord an amount equal to
1/12 of the annual cost, as estimated by Landlord from time to time, of Tenant's
Proportionate Share (hereinafter defined) of Operating Expenses for the Project.
Payments thereof for any fractional calendar month shall be prorated. The term
"Operating Expenses" means all costs and expenses incurred by Landlord with
respect to the ownership, maintenance, and operation of the Project including,
but not limited to costs of: Taxes (hereinafter defined) and reasonable fees
payable to tax consultants and attorneys for consultation and contesting taxes;
insurance; utilities; maintenance, repair and replacement of all portions of the
Project, including without limitation, paving and parking areas, roads, alleys,
and driveways, mowing, landscaping, exterior painting, utility lines, heating,
ventilation and air conditioning systems, lighting, electrical systems and other
mechanical and building systems; amounts paid to contractors and subcontractors
for work or services performed in connection with any of the foregoing; charges
or assessments of any association to which the Project is subject; property
management fees payable to a property manager, including any affiliate of
Landlord, or if there is no property manager, an administration fee of 10
percent of Operating Expenses payable to Landlord; security services, if any;
trash collection, sweeping and removal; and additions or alterations made by
Landlord to the Project or the Building in order to comply with Legal
Requirements (other than those expressly required herein to be made by Tenant)
or that are appropriate to the continued operation of the Project or the
Building as a bulk warehouse, administrative and light manufacturing facility in
the market area, provided that the cost of additions or alterations that are
required to be capitalized for federal income tax purposes shall be amortized on
a straight line basis over a period equal to the lesser of the useful life
thereof for federal income tax purposes or 10 years. Operating Expenses do not
include costs, or expenses, depreciation or amortization for capital repairs and
capital replacements required to be made by Landlord under Paragraph 10 of this
Lease, debt service (including principal and interest payments and refinancing
and other costs and fees) under mortgages or ground rent under ground leases,
costs of restoration to the extent of net insurance proceeds received by
Landlord with respect thereto, leasing commissions, the costs of renovating
space for tenants, depreciation of the Project or any portion thereof, legal
fees incurred in leasing to other tenants or in enforcing leases of other
tenants, the cost of any special services furnished to other tenants to the
extent Landlord does not make such services available to Tenant, expenses
incurred as the result of the default of any other tenant of the Project,
salaries of Landlord's executives except such portion of such salaries
attributable to work directly performed for the benefit of the Project, and
costs to the extent Landlord is reimbursed therefor from other non-tenant
sources.
If Tenant's total payments of Operating Expenses for any year are less
than Tenant's Proportionate Share of actual Operating Expenses for such year,
then Tenant shall pay the difference to Landlord within 30 days after demand,
and if more, then Landlord shall retain such excess and credit it against
Tenant's next payments. For purposes of calculating Tenant's Proportionate share
of Operating Expenses, a year shall mean a calendar year except the first year,
which shall begin on the Commencement Date, and the last year, which shall end
on the expiration of this Lease. With respect to Operating Expenses which
Landlord allocates to the entire Project, Tenant's "Proportionate Share" shall
be the percentage set forth on the first page of this Lease as Tenant's
Proportionate Share of the Project as reasonably adjusted by Landlord in the
future for changes in the physical size of the Premises or the Project; and,
with respect to Operating Expenses which Landlord allocates only to the
Building, Tenant's "Proportionate Share" shall be the percentage set forth on
the first page of this Lease as Tenant's Proportionate Share of the of the
Building as reasonably adjusted by Landlord in the future for changes in the
physical size of the Premises or the Building. Landlord may equitably increase
Tenant's Proportionate Share for any item of expense or cost reimbursable by
Tenant that relates to a repair, replacement, or service that benefits only the
Premises or only a portion of the Project or Building that includes the Premises
or that varies with occupancy or use. The estimated Operating Expenses for the
Premises set forth on the first page of this Lease are only estimates, and
Landlord makes no guaranty or warranty that such estimates will be accurate.
7. Utilities. Tenant shall pay for all water, gas, electricity, heat,
light, power, telephone, sewer, sprinkler services, refuse and trash collection,
and other utilities and services used on the Premises, all maintenance charges
for utilities, and any storm sewer charges or other similar charges for
utilities imposed by any governmental entity or utility provider, together with
any taxes, penalties, surcharges or the like pertaining to Tenant's use of the
Premises. Landlord shall have the right to cause at Tenant's expense any of said
services to be separately metered or charged directly to Tenant by the provider.
Tenant shall pay its share of all charges for jointly metered utilities based
upon consumption, as reasonably determined by Landlord. Landlord shall not be
liable for any interruption or failure of utilities or any other service to the
Premises and no such interruption or failure shall result in the abatement of
rent hereunder, except that Tenant shall receive an abatement of rent to the
extent any such interruption is caused by the negligence of Landlord or its
agents or employees. Tenant agrees to limit use of water and sewer for normal
restroom and office use.
8. Taxes. Landlord shall pay all taxes, assessments and governmental
charges (collectively referred to as "Taxes") that accrue against the Project
during the Lease Term, which shall be included as part of the Operating Expenses
charged to Tenant. Landlord may contest by appropriate legal proceedings the
amount, validity, or application of any Taxes or liens thereof. All capital
levies or other taxes assessed or imposed on Landlord upon the rents payable to
Landlord under this Lease and any franchise tax, any excise, transaction, sales
or privilege tax, assessment, levy or charge measured by or based, in whole or
in part, upon such rents from the Premises and/or the Project or any portion
thereof shall be paid by Tenant to Landlord monthly in estimated installments or
upon
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demand, at the option of Landlord, as additional rent; provided, however, in no
event shall Tenant be liable for any net income taxes imposed on Landlord unless
such net income taxes are in substitution for any Taxes payable hereunder. If
any such tax or excise is levied or assessed directly against Tenant, then
Tenant shall be responsible for and shall pay the same at such times and in such
manner as the taxing authority shall require. Tenant shall be liable for all
taxes levied or assessed against any personal property or fixtures placed in the
Premises, whether levied or assessed against Landlord or Tenant.
9. Insurance. Landlord shall maintain all risk property insurance covering
the full replacement cost of the Building. Landlord may, but is not obligated
to, maintain such other insurance and additional coverages as it may deem
necessary, including, but not limited to, commercial liability insurance and
rent loss insurance. All such insurance shall be included as part of the
Operating Expenses charged to Tenant. The Project or Building may be included in
a blanket policy (in which case the cost of such insurance allocable to the
Project or Building will be determined by Landlord based upon the insurer's cost
calculations). Tenant shall also reimburse Landlord for any increased premiums
or additional insurance which Landlord reasonably deems necessary as a result of
Tenant's use of the Premises.
Tenant, at its expense, shall maintain during the Lease Term; all
risk property insurance covering the full replacement cost of all property and
improvements installed or placed in the Premises by Tenant at Tenant's expense;
worker's compensation insurance with no less than the minimum limits required by
law; employer's liability insurance with such limits as required by law; and
commercial liability insurance, with a minimum limit of $1,000,000 per
occurrence and a minimum umbrella limit of $1,000,000, for a total minimum
combined general liability and umbrella limit of $2,000,000 (together with such
additional umbrella coverage as Landlord may reasonably require) for property
damage, personal injuries, or deaths or persons occurring in or about the
Premises. Landlord may from time to time require reasonable increases in any
such limits. The commercial liability policies shall name Landlord as an
additional insured, insure on an occurrence and not a claims-made basis, be
issued by insurance companies which are reasonably acceptable to Landlord, not
be cancelable unless 30 days prior written notice shall have been given to
Landlord, contain a hostile fire endorsement and a contractual liability
endorsement and provide primary coverage to Landlord (any policy issued to
Landlord providing duplicate or similar coverage shall be deemed excess over
Tenant's policies). Such policies or certificates thereof shall be delivered to
Landlord by Tenant upon commencement of the Lease Term and upon each renewal of
said insurance.
The all risk property insurance obtained by Landlord and Tenant
shall include a waiver of subrogation by the insurers and all rights based upon
an assignment from its insured, against Landlord or Tenant, their officers,
directors, employees, managers, agents, invitees and contractors, in connection
with any loss damage thereby insured against. Neither party nor its officers,
directors, employees, managers, agents, invitees or contractors shall be liable
to the other for loss or damage caused by any risk coverable by all risk
property insurance, and each party waives any claims against the other party,
and its officers, directors, employees, managers, agents, invitees and
contractors for such loss or damage. The failure of a party to insure its
property shall not void this waiver. Landlord and its agents, employees and
contractors shall not be liable for, and Tenant hereby waives all claims against
such parties for, business interruption and losses occasioned thereby sustained
by Tenant or any person claiming through Tenant with respect to Tenant's
property, resulting from any accident or occurrence in or upon the Premises or
the Project from any cause whatsoever, including without limitation, damage
caused in whole or in part, directly or indirectly, by the negligence of
Landlord or its agents, employees or contractors. The prior sentence shall not
address liability for third party death or personal injury, which is addressed
elsewhere in this Agreement.
10. Landlord's Repairs. Landlord shall maintain, at its expense, the
structural soundness of the roof, foundation, load bearing walls (except to the
extent modified by Tenant) and exterior walls of the Building in good repair,
reasonable wear and tear and uninsured losses and damages caused by Tenant, its
agents and contractors excluded. The term "walls" as used in this Paragraph 10
shall not include windows, glass or plate glass, doors or overhead doors,
special store fronts, dock bumpers, dock plates or levelers, or office entries.
Tenant shall not be charged, in the form of Operating Expenses, for the cost of
Landlord's maintenance, for other tenants in the Project, of the items set forth
in the first sentence of the Paragraph 10. Tenant shall promptly give Landlord
written notice of any repair by Landlord pursuant to this Paragraph 10, after
which Landlord shall have a reasonable opportunity to repair.
11. Tenant's Repairs. Landlord, at Tenant's expense as provided in
Paragraph 6, shall maintain in good repair and condition the parking area and
other common areas of the Project and the Building, including, but not limited
to driveways, alleys, landscape and grounds surrounding the Premises. Subject to
Landlord's obligation in Paragraph 10 Tenant, at its expense, shall maintain in
good repair and condition all portions of the Premises. If Tenant fails to
perform any repair for which it is responsible within 30 days of written notice
from Landlord (except for emergency situations, for which no notice shall be
required), Landlord may perform the repair and be reimbursed by Tenant within 10
days after demand therefor. Subject to Paragraphs 9 and 15, Tenant shall bear
the full cost of any repair to any part of the Building or Project that results
from damage caused by Tenant, its agents, contractors, or invitees and any
repair that benefits only the Premises. Heating, ventilation and air
conditioning systems and other mechanical and building systems serving the
Premises shall be maintained at Tenant's expense pursuant to maintenance service
contracts entered into by Tenant or, at Landlord's election, by Landlord. The
scope of services and contractors under such maintenance contracts shall be
reasonably approved by Landlord. At Landlord's request, Tenant shall enter into
a joint maintenance agreement with any railroad that services the Premises.
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12. Tenant-Made Alterations and Trade Fixtures. Any alterations,
additions, or improvements made by or on behalf of Tenant to the Premises which
cost in excess of $2,500 or modify in any manner the building exterior
("Tenant-Made Alterations") shall be subject to Landlord's prior written
consent. The previous sentence notwithstanding, Landlord hereby consents to the
Plans and Specifications set forth as Part II of the Work Letter Agreement
between Landlord and Tenant attached hereto as Exhibit B. Tenant shall cause, at
its expense, all Tenant-Made Alterations to comply with insurance requirements
and with Legal Requirements and shall construct at its expense any alteration or
modification required by Legal Requirements as a result of any Tenant-Made
Alterations. All Tenant-Made Alterations shall be constructed in a good and
workmanlike manner by contractors reasonably acceptable to Landlord and only
good grades of materials shall be used. All plans and specifications for any
Tenant-Made Alterations shall be submitted to Landlord for its approval, and
Landlord may monitor construction of the Tenant-Made Alterations and Tenant
shall reimburse Landlord for its reasonable costs in reviewing plans and
documents and in monitoring construction. Tenant shall provide Landlord with the
identities and mailing addresses of all persons performing work or supplying
materials, prior to beginning such construction, and Landlord may post on and
about the Premises notices of non-responsibility pursuant to applicable law.
Landlord's right to review plans and specifications and monitor construction
shall be solely for its own benefit, and Landlord shall have no duty to see that
such plans and specifications or construction comply with applicable laws,
codes, rules, or regulations. At Landlord's request, Tenant shall obtain payment
and performance bonds for any Tenant-Made Alterations which bonds shall be
delivered to Landlord prior to commencement of work on the Tenant-Made
Alterations and shall be in form and substance satisfactory to Landlord. Upon
completion of any Tenant-Made Alterations and payment therefor, Tenant shall
deliver to Landlord statements setting forth the names of all contractors and
subcontractors who did work on the Tenant-Made Alterations and final lien
waivers from all such contractors and subcontractors.
Tenant, at its own cost and expense, may erect such shelves, bind,
machinery and trade fixtures (collectively "Trade Fixtures") in the ordinary
course of its business provided that such items do not alter the basic character
of the Premises, do not overload or damage the Premises, and may be removed
without injury to the Premises, and provided that the construction, erection,
and installation thereof complies with all Legal Requirements and with
Landlord's requirements. Subject to Paragraphs 21 and 38 below, upon the
expiration of the Lease Term Tenant shall remove its Trade Fixtures and shall
repair any damage caused by such removal, by the last day of the Lease Term.
13. Signs. Tenant shall not make any changes to the exterior of the
Premises, install any exterior lights, decorations, balloons, flags, pennants,
banners, or painting, or erect or install any signs, windows or door lettering,
placards, decorations, or advertising media of any type which can be viewed from
the exterior of the Premises, without Landlord's prior written consent. Upon
vacation of the Premises, Tenant shall remove all signs and repair, paint,
and/or replace the building facia surface to which its signs are attached.
Tenant shall obtain all applicable governmental permits and approvals for sign
and exterior treatments. All signs, decorations, advertising media, blinds,
draperies and other window treatment or bars or other security installations
visible from outside the Premises shall be subject to Landlord's approval and
conform in all respects to Landlord's requirements.
14. Parking. Tenant shall be entitled to park in common with other tenants
of the Project in those areas designated for nonreserved parking. Landlord may
allocate parking spaces among Tenant and other tenants in the Project if
Landlord determines that such parking facilities are becoming crowded. Landlord
shall not be responsible for enforcing Tenant's parking rights against any third
parties.
15. Restoration. If at any time during the Lease Term the Premises or any
substantial portion thereof are damaged by a fire or other casualty, Landlord
shall notify Tenant within 60 days after such damage as to the amount of time
Landlord reasonably estimates it will take to restore the Premises. If the
restoration time is estimated to exceed 6 months, either Landlord or Tenant may
elect to terminate this Lease upon notice to the other party given no later than
30 days after Landlord's notice. If neither party elects to terminate this Lease
or if Landlord estimates that restoration will xxxx 0 months or less, then,
subject to receipt of sufficient insurance proceeds, Landlord shall promptly
restore the Premises excluding the improvements installed by Tenant or by
Landlord and paid by Tenant, subject to delays arising from the collection of
insurance proceeds or from Force Majeure events. Tenant at Tenant's expense
shall promptly perform, subject to delays arising from the collection of
insurance proceeds, or from Force Majeure events, all repairs or restoration not
required to be done by Landlord and shall promptly re-enter the Premises and
commence doing business in accordance with this Lease. Notwithstanding the
foregoing, either party may terminate this Lease if the Premises are damaged
during the last year of the Lease Term and Landlord reasonably estimates that it
will take more than one month to repair such damage. Tenant shall pay to
Landlord with respect to any damage to the Premises the amount of the
commercially reasonably deductible under Landlord's insurance policy (currently
$10,000) within 10 days after presentment of Landlord's invoice. Tenant's
obligation to pay an applicable deductible referenced in the previous sentence
shall in no event exceed $15,000. If the damage involves the premises of other
tenants, Tenant shall pay the portion of the deductible that the cost of the
restoration of the Premises bears to the total cost of restoration, as
reasonably determined by Landlord. Base Rent and Operating Expenses shall be
abated for the period of repair and restoration in the proportion which the area
of the Premises, if any, which is not usable by Tenant bears to the total area
of the Premises. Such abatement shall be the sole remedy of Tenant, and except
as provided herein, Tenant waives any right to terminate the Lease by reason of
damage or casualty loss.
16. Condemnation. If any part of the Premises or the Project should be
taken for any public or quasi-public use under governmental law, ordinance, or
regulation, or by right of eminent domain, or by private purchase
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in lieu thereof (a "Taking" or "Taken"), and the Taking would prevent or
materially interfere with Tenant's use of the Premises or in Landlord's
reasonable judgment would materially interfere with or impair its ownership or
operation of the Project, then upon written notice by Landlord or Tenant, as
applicable, this Lease shall terminate and Base Rent shall be apportioned as of
said date. If part of the Premises shall be Taken, and this Lease is not
terminated as provided above, the Base Rent payable hereunder during the
unexpired Lease Term shall be reduced to such extent as may be fair and
reasonable under the circumstances. In the event of any such Taking, Landlord
shall be entitled to receive the entire price or award from any such Taking
without any payment to Tenant, and Tenant hereby assigns to Landlord Tenant's
interest, if any, in such award, except to the extent that any portion of such
award is for the express purpose of Tenant relocation or compensation for damage
to Tenant's Trade Fixtures and leasehold improvements made by Tenant at its sole
expense. Tenant shall have the right, to the extent that same shall not diminish
Landlord's award, to make a separate claim against the condemning authority (but
not Landlord) for such compensation as may be separately awarded or recoverable
by Tenant for moving expenses and damage to Tenant's Trade Fixtures, if a
separate award for such items is made to Tenant.
17. Assignment and Subletting. Without Landlord's prior written consent,
which Landlord shall not unreasonably withhold, Tenant shall not assign this
Lease or sublease the Premises or any part thereof or mortgage, pledge, or
hypothecate its leasehold interest or grant any concession or license within the
Premises and any attempt to do any of the foregoing shall be void and of no
effect. For purposes of this paragraph, a transfer of the ownership interests
controlling Tenant shall be deemed an assignment of this Lease unless such
ownership interests are publicly traded. Notwithstanding the above, Tenant may
without the prior written consent of Landlord, assign or sublet the Premises, or
any part thereof, to (a) any entity controlling Tenant, controlled by Tenant or
under common control with Tenant (a "Tenant Affiliate"), or (b) to any person or
entity which shall acquire not less than 51% of the stock or assets of Tenant as
a result of a consolidation, merger or sale, provided that in the case of this
Subparagraph 18(b), (x) such consolidation, merger or sale is for a good
business purpose and not principally for the purpose of transferring Tenant's
leasehold estate, and (y) the assignee or successor entity has a net worth at
least equal to the net worth of Tenant immediately prior to such consolidating
merger or sale. Tenant shall reimburse Landlord for all of Landlord's reasonable
out-of-pocket expenses in connection with any assignment or sublease. Upon
Landlord's receipt of Tenant's written notice of a desire to assign or sublet
50% or more of the Premises (other than to a Tenant Affiliate or other person or
entity for which Landlord's consent is not required), Landlord may, by giving
written notice to Tenant within 30 days after receipt of Tenant's notice,
terminate this Lease with respect to the space described in Tenant's notice, as
of the date specified in Tenant's notice for the commencement of the proposed
assignment or sublease. If Landlord so terminates the Lease, Landlord may enter
into a lease directly with the proposed sublessee or assignee. Tenant may
withdraw its notice to sublease or assign by notifying Landlord within 10 days
after Landlord has given Tenant notice of such termination, in which case the
Lease shall not terminate but shall continue.
It shall be reasonable for the Landlord to withhold its consent to
any assignment or sublease in any of the following instances: (i) an Event of
Default has occurred and is continuing that would not be cured upon the proposed
sublease or assignment; (ii) the assignee or sublessee does not have a net worth
calculated according to generally accepted accounting principles at least equal
to the greater of the net worth of Tenant immediately prior to such assignment
or sublease or the net worth of the Tenant at the time it executed the Lease;
(iii) the intended use of the Premises by the assignee or sublessee is not
reasonably satisfactory to Landlord; (iv) the intended use of the Premises by
the assignee or sublessee would materially increase the pedestrian or vehicular
traffic to the Premises or the Project; (v) occupancy of the Premises by the
assignee or sublessee would, in Landlord's opinion, violate an agreement binding
upon Landlord or the Project with regard to the identity of tenants, usage in
the Project, or similar matters; (vi) the identity or business reputation of the
assignee or sublessee will, in the good faith judgment of Landlord, tend to
damage the goodwill or reputation of the Project; (vii) the assignment or sublet
is to another existing tenant in the Project and is at rates which are below
those charged by Landlord for comparable space in the Project; (viii) in the
case of a sublease, the subtenant has not acknowledged that the Lease controls
over any inconsistent provision in the sublease; or (ix) the proposed assignee
or sublessee is a governmental agency, Tenant and Landlord acknowledge that each
of the foregoing criterion are reasonable as of the date of execution of this
Lease. The foregoing criteria shall not exclude any other reasonable basis for
Landlord to refuse its consent to such assignment or sublease. Any approved
assignment or sublease shall be expressly subject to the terms and conditions of
this Lease. Tenant shall provide to Landlord all information concerning the
assignee or sublessee as Landlord may reasonably request.
Notwithstanding any assignment or subletting, Tenant and any
guarantor or surety of Tenant's obligations under this Lease shall at all times
remain fully responsible and liable for the payment of the rent and for
compliance with all of Tenant's other obligations under this Lease (regardless
of whether Landlord's approval has been obtained for any such assignments or
sublettings). In the event that the rent due and payable by a subleases or
assignee for which Landlord's consent is required (or a combination of the
rental payable under such sublease or assignment plus any bonus or other
consideration therefor or incident thereto), less expenses and costs incurred by
Tenant with respect to brokerage fees and tenant improvements made for the
benefit of such assignee or sublessee as amortized on a straight-line basis over
the remaining term of the Lease, exceeds the rental payable under this Lease,
then Tenant shall be bound and obligated to pay Landlord as additional rent
hereunder 50% of such excess rental and other excess consideration within 10
days following receipt thereof by Tenant.
If this Lease be assigned or if the Premises be subleased (whether
in whole or in part) or in the event of the mortgage, pledge, or hypothecation
of Tenant's leasehold interest or grant of any concession or license within the
Premises or if the Premises be occupied in whole or in part by anyone other than
Tenant, then upon a
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default by Tenant hereunder Landlord may collect rent from the assignee,
sublessee, mortgagee, pledgee, party to whom the leasehold interest was
hypothecated, concessionee or licensee or other occupant and, except to the
extent set forth in the preceding paragraph, apply the amount collected to the
next rent payable hereunder; and all such rentals collected by Tenant shall be
held in trust for Landlord and immediately forwarded to Landlord. No such
transaction or collection of rent or application thereof by Landlord, however,
shall be deemed a waiver of these provisions or a release of Tenant from the
further performance by Tenant of its covenants, duties, or obligations
hereunder.
18. Indemnification. Except for the negligence of Landlord, its agents,
employees or contractors, and to the extent permitted by law, Tenant agrees to
indemnify, defend and hold harmless Landlord, and Landlord's agents, employees
and contractors, from and against any and all losses, liabilities, damages,
costs and expenses (including attorneys' fees) resulting from claims by third
parties for injuries to any person and damage to or theft or misappropriation
or loss of property occurring in or about the Project and arising from the use
and occupancy of the Premises or from any activity, work, or thing done,
permitted or suffered by Tenant in or about the Premises or due to any other
act or omission of Tenant, its subtenants, assignees, invitees, employees,
contractors and agents. The furnishing of insurance required hereunder shall
not be deemed to limit Tenant's obligations under this Paragraph 18.
19. Inspection and Access. Landlord and its agents, representatives,
and contractors may enter the Premises at any reasonable time upon reasonable
notice to inspect the Premises and to make such repairs as may be required or
permitted pursuant to this Lease and for any other business purpose. Landlord
and Landlord's representatives may enter the Premises during business hours
upon reasonable notice for the purpose of showing the Premises to prospective
purchasers and, during the last year of the Lease Term, to prospective
tenants. Landlord may erect a suitable sign on the Premises stating the
Premises are available to let or that the Project is available for sale.
20. Quiet Enjoyment. If Tenant shall perform all of the covenants and
agreements herein required to be performed by Tenant, Tenant shall, subject to
the terms of this Lease, at all times during the Lease Term, have peaceful and
quiet enjoyment of the Premises against any person claiming by, through or
under Landlord.
21. Surrender. Upon termination of the Lease Term or earlier
termination of Tenant's right of possession, all Tenant-Made Alterations and
any improvements constructed by Landlord pursuant to the Construction Addendum,
if any, attached hereto ("Initial Improvements") shall remain in the Premises
as the property of Landlord. Alternatively, upon any such termination,
Landlord may, by notice to Tenant, require Tenant at Tenant's expense to remove
any or all Trade Fixtures and/or any or all Tenant-Made Alterations, and to
repair any damage caused by such removal; provided that Tenant shall not be
required to remove any of the Initial Improvements. In addition, when
consenting to any Tenant-Made Alterations, Landlord shall indicate whether
Landlord shall require Tenant to remove such Tenant-Made Alterations at the end
of the Lease Term. Any Trade Fixtures, Tenant-Made Alterations or Initial
Improvements not so removed by Tenant as permitted or required herein shall be
deemed abandoned and may be stored, removed, and disposed of by Landlord at
Tenant's expense, and Tenant waives all claims against Landlord for any damages
resulting from Landlord's retention and disposition of such property. All
obligations of Tenant hereunder not fully performed as of the termination of
the Lease Term shall survive the termination of the Lease Term, including
without limitation, indemnity obligations, payment obligations with respect to
Operating Expenses and obligations concerning the condition and repair of the
Premises.
22. Holding Over. If Tenant retains possession of the Premises after the
termination of the Lease Term, unless otherwise agreed in writing, such
possession shall be subject to immediate termination by Landlord at any time,
and all of the other terms and provisions of this Lease (excluding any
expansion or renewal option or other similar right or option) shall be
applicable during such holdover period, except that Tenant shall pay Landlord
from time to time, upon demand, as Base Rent for the holdover period, an amount
equal to 150% of the Base Rent in effect on the termination date, computed on a
monthly basis for each month or part thereof during such holding over. All
other payments shall continue under the terms of this Lease. In addition,
Tenant shall be liable for all damages incurred by Landlord as a result of such
holding over. No holding over by Tenant, whether with or without consent of
Landlord, shall operate to extend this Lease except as otherwise expressly
provided, and this Paragraph 22 shall not be construed as consent for Tenant to
retain possession of the Premises.
23. Events of Default. Each of the following events shall be an event
of default ("Event of Default") by Tenant under this Lease:
(i) Tenant shall fail to pay any installment of Base Rent or any
other payment required herein when due, and such failure shall continue
for a period of 5 days from receipt of notice therefor from Landlord
(provided, that if Landlord shall have provided notice of Tenant's failure
to pay Base Rent once during any calendar year or three times during the
Lease Term, thereafter, as the case may be, Tenant's failure to pay Base
Rent within 5 days after the due date thereof shall constitute an Event of
Default without any requirement of notice from Landlord.
(ii) Tenant or any guarantor surety of Tenant's obligations
hereunder shall (A) make a general assignment for the benefit of
creditors; (B) commence any case, proceeding or other action seeking to
have an order for relief entered on its behalf as a debtor or to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, liquidation, dissolution or composition of it or
its debts
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or seeking appointment of a receiver, trustee, custodian or other similar
official for it or for all or of any substantial part of its property
(collectively a "proceeding for relief"); (C) become the subject of any
proceeding for relief which is not dismissed within 60 days of its filing
or entry; or (D) die or suffer a legal disability (if Tenant, guarantor,
or surety is an individual) or be dissolved or otherwise fail to maintain
its legal existence (if Tenant, guarantor or surety is a corporation,
partnership or other entity).
(iii) Any insurance required to be maintained by Tenant pursuant to
this Lease shall be cancelled or terminated or shall expire or shall be
reduced or materially changed, except, in each case, as permitted in this
Lease.
(iv) Tenant shall not occupy or shall vacate the Premises or shall
fail to continuously operate its business at the Premises for the
permitted use set forth herein, whether or not Tenant is in monetary or
other default under this Lease. The prior sentence notwithstanding,
Tenant's vacating of the Premises shall not constitute an Event of Default
if, prior to vacating the Premises, Tenant has made arrangements
reasonably acceptable to Landlord to (a) insure that Tenant's insurance
for the Premises will not be voided or cancelled with respect to the
Premises as a result of such vacancy, (b) insure that the Premises are
secured and not subject to vandalism, and (c) insure that the Premises
will be properly maintained after such vacation. Tenant shall inspect the
Premises at least once each month and report monthly in writing to
Landlord on the condition of the Premises.
(v) Tenant shall assign, sublease or transfer Tenant's interest in
or with respect to this Lease except as otherwise permitted in this Lease.
(vi) Tenant shall fail to discharge any lien placed upon the
Premises in violation of this Lease within 30 days after any such lien or
encumbrance is filed against the Premises.
(vii) Tenant shall fail to comply with any provision of this Lease
other than those specifically referred to in this Paragraph 23, and except
as otherwise expressly provided herein, such default shall continue for
more than 30 days after Landlord shall have given Tenant written notice of
such default (unless the curing of such default will, due to the nature of
the obligation, require a period of time in excess of 30 days, then after
such period of time as is reasonably necessary to cure such default).
24. Landlord's Remedies. Upon each occurrence of an Event of Default and
so long as such Event of Default shall be continuing, Landlord may at any time
thereafter at its election: terminate this Lease or Tenant's right of
possession, (but Tenant shall remain liable as hereinafter provided) and/or
pursue any other remedies at law or in equity. Upon the termination of this
Lease or termination of Tenant's right of possession, it shall be lawful for
Landlord, without formal demand or notice of any kind, to re-enter the Premises
by summary dispossession proceedings or any other action or proceeding
authorized by law and to remove Tenants and all persons and property therefrom.
If Landlord re-enters the Premises, Landlord shall have the right to keep in
place and use, or remove and store, all of the furniture, fixtures and equipment
at the Premises.
Except as otherwise provided in the next paragraph, if Tenant breaches
this Lease and abandons the Premises prior to the end of the term hereof, or if
Tenant's right to possession is terminated by Landlord because of an Event of
Default by Tenant under this Lease, this Lease shall terminate. Upon such
termination, Landlord may recover from Tenant the following, as provided in
Section 1951.2 of the Civil Code of California: (i) the worth at the time of
award of the unpaid Base Rent and other charges under this Lease that had been
earned at the time of termination; (ii) the worth at the time of award of the
amount by which the reasonable value of the unpaid Base Rent and other charges
under this Lease which would have been earned after termination until the time
of award exceeds the amount of such rental loss that Tenant proves could have
been reasonably avoided; (iii) the worth at the time of award by which the
reasonable value of the unpaid Base Rent and other charges under this Lease for
the balance of the term of this Lease after the time of award exceeds the amount
of such rental loss that Tenant proves could have been reasonably avoided; and
(iv) any other amount necessary to compensate Landlord for all the detriment
proximately caused by Tenant's failure to perform its obligations under this
Lease or that in the ordinary course of things would be likely to result
therefrom. As used herein, the following terms are defined: (a) the "worth at
the time of award" of the amounts referred to in Sections (i) and (ii) is
computed by allowing interest at the lesser of 18 percent per annum or the
maximum lawful rate. The "worth at the time of award" of the amount referred to
in Section (iii) is computed by discounting such amount at the discount rate of
the Federal Reserve Bank of San Francisco at the time of award plus one percent;
(b) The "time of award" as used in clauses (i), (ii), and (iii) above is the
date on which judgment is entered by a court of competent jurisdiction; (c) The
"reasonable value" of the amount referred to in clause (ii) above is computed by
determining the mathematical product of (1) the "reasonable annual rental value"
(as defined herein) and (2) the number of years, including fractional parts
thereof, between the date of termination and the time of award. The "reasonable
value" of the amount referred to in clause (iii) computed by determining the
mathematical product of (1) the annual Base Rent and other charges under this
Lease and (2) the number of years including fractional parts thereof remaining
in the balance of the term of this Lease after the time of award.
Even though Tenant has breached this Lease and abandoned the
Premises, this Lease shall continue in effect for so long as Landlord doe not
terminate Tenant's right to possession, and Landlord may enforce all its right
and remedies under this Lease, including the right to recover rent as it becomes
due. This remedy is intended to be the remedy described in California Civil Code
Section 1951.4, and the following provision from such Civil
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Code Section is hereby repeated: "The Lessor has the remedy described in
California Civil Code Section 1951.4 (lessor may continue lease in effect after
leasee's breach and abandonment and recover rent as it becomes due, if leasee
has right to sublet or assign, subject only to reasonable limitations)." Any
such payments due Landlord shall be made upon demand therefor from time to time
and Tenant agrees that Landlord may file suit to recover any sums falling due
from time to time. Notwithstanding any such reletting without termination,
Landlord may at any time thereafter elect in writing to terminate this Lease for
such previous breach.
Exercise by Landlord of any one or more remedies hereunder granted
or otherwise available shall not be deemed to be an acceptance of surrender of
the Premises and/or a termination of this Lease by Landlord, whether by
agreement or by operation of law, it being understood that such surrender and/or
termination can be effected only by the written agreement of Landlord and
Tenant. Any law, usage, or custom to the contrary notwithstanding, Landlord
shall have the right at all times to enforce the provisions of this Lease in
strict accordance with the terms hereof; and the failure of Landlord at any time
to enforce its rights under this Lease strictly in accordance with same shall
not be construed as having created a custom in any way or manner contrary to the
specific terms, provisions, and covenants of this Lease or as having modified
the same. Tenant and Landlord further agree that forbearance or waiver by
Landlord to enforce its rights pursuant to this Lease or at law or in equity,
shall not be a waiver of Landlord's right to enforce one or more of its rights
in connection with any subsequent default. A receipt by Landlord of rent or
other payment with knowledge of the breach of any covenant hereof shall not be
deemed a waiver of such breach, and no waiver by Landlord of any provision of
this Lease shall be deemed to have been made unless expressed in writing and
signed by Landlord. To the greatest extent permitted by law, Tenant waives the
service of notice of Landlord's intention to re-enter as provided for in any
statute, or to institute legal proceedings to that end, and also waives all
right of redemption in case Tenant shall be dispossessed by a judgment or by
warrant of any court or judge. The terms "enter," "re-enter," "entry" or
"re-entry," as used in this Lease, are not restricted to their technical legal
meanings. Any reletting of the Premises shall be on such terms and conditions as
Landlord in its sole discretion may determine (including without limitation a
term different than the remaining Lease Term, rental concessions, alterations
and repair of the Premises, lease of less than the entire Premises to any tenant
and leasing any or all other portions of the Project before reletting the
Premises). Landlord shall not be liable, nor shall Tenant's obligations
hereunder be diminished because of, Landlord's failure to relet the Premises or
collect rent due in respect of such reletting. The foregoing shall not affect
Landlord's obligation under law to use reasonable efforts to mitigate Tenant's
damages; provided, however, (a) Landlord shall not be obligated to accept any
tenant proposed by Tenant, (b) Landlord shall have the right to lease any other
space controlled by Landlord first, and (c) any proposed tenant shall meet all
of Landlord's leasing criteria.
25. Tenant's Remedies/Limitation of Liability. Landlord shall not be in
default hereunder and Tenant shall not have any remedy or cause of action unless
Landlord fails to perform any of its obligations hereunder within 30 days after
written notice from Tenant specifying such failure (unless such performance
will, due to the nature of the obligation, require a period of time in excess of
30 days, then after such period of time as is reasonably necessary). All
obligations of Landlord hereunder shall be construed as covenants, not
conditions; and, except as may be otherwise expressly provided in this Lease,
Tenant may not terminate this Lease for breach of Landlord's obligations
hereunder. All obligations of Landlord under this Lease will be binding upon
Landlord only during the period of its ownership of the Premises and not
thereafter. The term "Landlord" in this Lease shall mean only the owner, for the
time being of the Premises, and in the event of the transfer by such owner of
its interest in the Premises, such owner shall thereupon be released and
discharged from all obligations of Landlord thereafter accruing, but such
obligations shall be binding during the Lease Term upon each new owner for the
duration of such owner's ownership. Any liability of Landlord under this Lease
shall be limited solely to its interest in the Project, and in no event shall
any personal liability be asserted against Landlord in connection with this
Lease nor shall any recourse be had to any other property or assets of Landlord.
26. Waiver of Jury Trial TENANT AND LANDLORD WAIVE ANY RIGHT TO TRIAL BY
JURY OR TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT, OR OTHERWISE, BETWEEN LANDLORD AND TENANT ARISING OUT OF THIS
LEASE OR ANY OTHER INSTRUMENT, DOCUMENT, OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH OR THE TRANSACTIONS RELATED HERETO.
27. Subordination. This Lease and Tenant's interest and rights hereunder
are and shall be subject and subordinate at all times to the lien of any first
mortgage, now existing or hereafter created on or against the Project or the
Premises, and all amendments, restatements, renewals, modifications,
consolidations, refinancing, assignments and extensions thereof, without the
necessity of any further instrument or act on the part of Tenant. Tenant agrees,
at the election of the holder of any such mortgage, to attorn to any such
holder, provided that such holder agrees to execute the non-disturbance
agreement in which such holder agrees not to disturb Tenant's possession of the
Premises under the terms of the Lease in the event such holder or ground lessor
acquires title to the Premises through foreclosure, deed in lieu of foreclosure
or otherwise. Tenant agrees upon demand to execute, acknowledge and deliver such
instruments, confirming such subordination and such instruments of attornment as
shall be requested by any such holder. Tenant hereby appoints Landlord attorney
in fact for Tenant irrevocably (such power of attorney being coupled with an
interest) to execute, acknowledge and deliver any such instrument and
instruments for and in the name of the Tenant and to cause any such instrument
to be recorded. Notwithstanding the foregoing, any such holder may at any time
subordinate its mortgage to this Lease, without Tenant's consent, by notice in
writing to Tenant, and thereupon this Lease shall be deemed prior to such
mortgage without regard to their respective dates of execution, delivery or
recording and in that event such holder shall have the same rights with respect
to this Lease as though this Lease had been executed prior to the execution,
delivery and recording of
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such mortgage and had been assigned to such holder. The term "mortgage" whenever
used in this Lease shall be deemed to include deeds of trust, security
assignments and any other encumbrances, and any reference to the "holder" of a
mortgage shall be deemed to include the beneficiary under a deed of trust.
28. Mechanic's Liens. Tenant has no express or implied authority to create
or place any lien or encumbrance of any kind upon, or in manner to bind the
interest of Landlord or Tenant in, the Premises or to charge the rentals payable
hereunder for any claim in favor of any person dealing with Tenant, including
those who may furnish materials or perform labor for any construction or
repairs. Tenant covenants and agrees that it will pay or cause to be paid all
sums legally due and payable by it on account of any labor performed or
materials furnished in connection with any work performed on the Premises and
that it will save and hold Landlord harmless from all loss, cost or expense
based on or arising out of asserted claims or liens against the leasehold estate
or against the interest of Landlord in the Premises or under this Lease. Tenant
shall give Landlord immediate written notice of the placing of any lien or
encumbrance against the Premises and cause such lien or encumbrance to be
discharged within 30 days of the filing or recording thereof; provided, however,
Tenant may contest such liens or encumbrances as long as such contest prevents
foreclosure of the lien or encumbrance and Tenant causes such lien or
encumbrance to be bonded or insured over in a manner satisfactory to Landlord
within such 30 day period.
29. Estoppel Certificates. Tenant agrees, from time to time, within 10
days after request of Landlord, to execute and deliver to Landlord, or
Landlord's designee, any estoppel certificate requested by Landlord, stating
that this Lease in full force and effect, the date to which rent has been paid,
that, to Tenant's knowledge, Landlord is not in default hereunder (or specifying
in detail the nature of Landlord's default), the termination date of this Lease
and such other matters pertaining to this Lease as may be requested by Landlord.
Tenant's obligation to furnish each estoppel certificate in a timely fashion is
a material inducement for Landlord's execution of this Lease. No cure or grace
period provided in this lease shall apply to Tenant's obligations to timely
deliver an estoppel certificate. Tenant hereby irrevocably appoints Landlord as
its attorney in fact to execute on its behalf and in its name any such estoppel
certificate if Tenant fails to execute and deliver the estoppel certificate
within 10 days after Landlord's written request thereof.
30. Environment Requirements. Except for Hazardous Material contained in
products used by Tenant in de minimis quantities for ordinary cleaning and
office purposes, Tenant shall not permit or cause any party to bring any
Hazardous Material upon the Premises or store or use any Hazardous Material in
or about the Premises without Landlord's prior written consent. Notwithstanding
the foregoing, Landlord hereby acknowledges that Tenant intends to apply to the
City of Fremont for a Class H-6 Hazardous Materials permit to utilize certain
chemicals in its business operations, and Landlord agrees that Tenant's use of
the Hazardous Materials set forth in Exhibit C attached hereto shall be
permitted by Landlord, subject to Tenant's full compliance with all requirements
of this Paragraph 30. Landlord hereby agrees to permit such use subject to
Tenant's following good engineering practice, subject to Tenant's full
compliance with all Environment Laws and all storage, handling and other
requirements of the City of Fremont under said Class H-6 Hazardous Materials
permit, subject to the use restrictions set forth in Paragraph 3 hereof, and
subject to the requirement that Landlord's approval shall be obtained by Tenant
for Tenant's use of any Hazardous Materials not previously specifically approved
by Landlord (which approval shall not be unreasonably withheld). If Landlord
does not provide a response within 5 days of Tenant's written request for
approval of any additional Hazardous Materials as set forth in the last
clause of the immediately preceding sentence, then Landlord shall be deemed to
have approved the use of such Hazardous Materials, subject to Tenant's
compliance with the remaining provisions of the immediately preceding sentence.
Tenant, at its sole cost and expense, shall operate its business in the Premises
in compliance with all Environmental Requirements and shall immediately
remediate any Hazardous Materials released on or from the project by Tenant, its
agents, employees, contractors, subtenants or invitees. The term "Environmental
Requirements" means all applicable present and future statutes, regulations,
ordinances, rules, codes, judgments, orders or other similar enactments of any
governmental authority or agency regulating or relating to health, safety, or
environmental conditions on, under, or about the Premises or the environment,
including without limitation, the following: the Comprehensive Environmental
Response, Compensation and Liability Act ("CERCLA"); the Resource Conservation
and Recovery Act; and all state and local counterparts thereto, and any
regulations or policies promulgated or issued thereunder. The term "Hazardous
Materials" means and includes petroleum (as defined in CERCLA) and any
substance, material, waste, pollutant, or contaminant listed or defined as
hazardous or toxic, under any Environmental Requirements, asbestos and
petroleum, including crude oil or any fraction thereof, natural gas, or
synthetic gas usable for fuel (or mixtures of natural gas and such synthetic
gas). As defined in Environmental Requirements, Tenant is and shall be deemed to
be the "operator" of Tenant's "facility" and the "owner" of all Hazardous
Materials brought on the Premises by Tenant, its agents, employees, contractors
or invitees, and the wastes, by-products, or residues generated, resulting, or
produced therefrom.
Tenant represents and warrants that it is not currently subject to
an inquiry, regulatory investigation, enforcement order, or any other proceeding
regarding the generation, use, treatment, storage, or disposal of a Hazardous
Material.
Tenant immediately shall notify Landlord in writing of any spill,
release, discharge, or disposal of any Hazardous Material in, on or under the
Premises or the Project. All reporting obligations imposed by Environmental
Requirements are strictly the responsibility of Tenant. Tenant shall supply to
Landlord within 5 business days after Tenant first receives or sends the same,
copies of all claims, reports, complaints, notices, warnings or asserted
violations relating in any way to Tenant's use of the Premises.
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Tenant shall indemnify, defend, and and hold harmless from and
against any and all losses (including, without limitation, diminution in value
of the Premises or the Project and loss of rental income from the Project),
claims, demands, actions, suits, damages (including, without limitation,
punitive damages), expenses (including, without limitations, remediation,
corrective action, or cleanup expenses), and costs (including, without
limitation, actual attorneys' fees, consultant fees or expert fees) which are
brought or recoverable against, or suffered or incurred by Landlord as a result
of any release of Hazardous Materials for which Tenant is obligated to remediate
as provided above or any other breach of the requirements under this Paragraph
30 by Tenant, its agents, employees, contractors, subtenants, assignees or
invitees, regardless of whether Tenant had knowledge of such noncompliance. The
obligations of Tenant under this Paragraph 30 shall survive any termination of
this Lease.
Landlord shall have access to, and a right to perform inspections
and tests of, the Premises to determine Tenant's compliance with environmental
Requirements and the Class H-6 Hazardous Materials permit, its obligations under
this Paragraph 30, or the environmental condition of the Premises. Access shall
be granted to Landlord upon Landlord's prior notice to Tenant and at such times
so as to minimize, so far as may be reasonable under the circumstances, any
disturbance to Tenant's operations. Such inspections and tests shall be
conducted at Landlord's expense, unless such inspections or tests reveal that
Tenant has not complied with any environmental Requirement, in which case Tenant
shall reimburse Landlord for the reasonable cost of such inspection and tests.
Landlord's receipt of or satisfaction with any environmental assessment in no
way waives any rights that Landlord holds against Tenant.
At the expiration or earlier termination of the Lease, Tenant, at
its sole cost and expense, shall: (i) remove and dispose off-site any drums,
containers, receptacles, structures, or tanks storing or containing Hazardous
Materials (or which have stores or contained Hazardous Materials) and the
contents thereas; and (ii) remove, empty, and purge all underground and above
ground storage tank systems, including connected piping, of all vapors, liquids,
sludge and residues, in each case, which have been brought to or installed on
the Project or Premises by Tenant. Such activities shall be performed in
compliance with all environmental Requirements and the Class H-6 Hazardous
Materials permit and to the satisfaction of Landlord. Landlord's satisfaction
with such activities or the condition of the Premises does not waive, or release
Tenant from, any obligations hereunder.
31. Rules and Regulations. Tenant shall, at all times during the Lease
Term and any extension thereof, comply with all reasonable rules and regulations
at any time or from time to time established by Landlord covering use of the
Premises and the Project. The current rules and regulations are attached hereto.
In the event of any conflict between said rules and regulations and other
provisions of this Lease, the other terms and provisions of this Lease shall
control. Landlord shall not have any liability or obligation for the breach of
any rules or regulations by other tenants in the Project. Notwithstanding
Paragraph 1 of the Rules and Regulations to the contrary, Tenant shall have full
use of the loading docks for normal business purposes to the extent consistent
with access rights of other tenants. Notwithstanding Paragraph 5 of the Rules
and Regulations to the contrary, Tenant may use its own electrician subject to
Landlord's reasonable approval rights. Notwithstanding the second sentence of
Paragraph 6 of the Rules and Regulations to the contrary, Tenant may use those
materials that are consistent with its rights under Paragraphs 3 and 30 of this
Agreement.
32. Security Service. Tenant acknowledges and agrees that, while Landlord
may patrol the Project, Landlord is not providing any security services with
respect to the Premises and that Landlord shall not be liable to Tenant for, and
Tenant waives any claim against Landlord with respect to, any loss by theft or
any other damage suffered or incurred by Tenant in conjunction with any
unauthorized entry into the Premises or any other breach of security with
respect to the Premises.
33. Force Majeure. Each of Landlord and Tenant shall not be held
responsible for delays in the performance of its obligations hereunder when
caused by strikes, lockouts, labor disputes, acts of God, inability to obtain
labor or materials or reasonable substitutes therefor, governmental
restrictions, governmental regulations, governmental controls, delay in issuance
of permits, enemy or hostile governmental action, civil commotion, fire or other
casualty, and other causes beyond their respective reasonable control ("Force
Majeure"), provided, however, that Tenant's obligation to pay rent shall survive
any such Force Majeure occurrence.
34. Entire Agreement. This Lease constitutes the complete agreement of
Landlord and Tenant with respect to the subject matter hereof. No
representations, inducements, promises or agreements, oral or written, have been
made by Landlord or Tenant, or anyone acting on behalf of Landlord or Tenant,
which are not contained herein, and any prior agreements, promises,
negotiations, or representations are superseded by this Lease. This Lease may
not be amended except by an instrument in writing signed by both parties hereto.
35. Severability. If any clause or provision of this Lease is illegal,
invalid or unenforceable under present or future laws, then and in that event,
it is the intention of the parties hereto that the remainder of this Lease shall
not be affected thereby. It is also the intention of the parties to this Lease
that in lieu of each clause or provision of this Lease that is illegal, invalid
or unenforceable, there be added, as a part of this Lease, a clause or provision
as similar in terms to such illegal, invalid or unenforceable clause or
provision as may be possible and be legal, valid and enforceable.
36. Brokers. Landlord shall be responsible for the payment of any
commission due to Broker, in accordance with a separate agreement between
Landlord and Broker. Landlord and Tenant each represents and warrants that it
has has dealt with no broker, agent or other person in connection with this
transaction and that no
-11-
broker, agent or other person brought about this transaction, other than the
Broker, if any, set forth on the first page of this Lease, and landlord and
Tenant each agrees to indemnify and hold the other party harmless from and
against any claims by any other broker, agent or other person claiming a
commission or other form of compensation by virtue of having dealt with Landlord
or Tenant, as as the case may be, with regard to this leasing transaction.
37. Miscellaneous.
(a) Any payments or charges dues from Tenant to Landlord hereunder shall
be considered rent for all purposes of this Lease.
(b) If and when included within the term "Tenant," as used in this
instrument, there is more than one person, firm or corporation, each shall be
jointly and severally liable for the obligations of Tenant.
(c) All notices required or permitted to be given under this Lease shall
be in writing and shall be sent by registered or certified mail, return receipt
requested, or by a reputable national overnight courier service, postage
prepaid, or by hand delivery addressed to the parties at their addresses below,
and with a copy sent to Landlord at 00000 Xxxx 00xx Xxxxx, Xxxxxx, Xxxxxxxx
00000. Either party may by notice given aforesaid change its address for all
subsequent notices. Except where otherwise expressly provided to the contrary,
notice shall be deemed given upon delivery.
(d) Except as expressly provided in this Lease, Landlord retains the
absolute right to withhold any consent or approval.
(e) To the extent required under Addendum 2 of this Lease, Tenant shall,
upon Landlord's request, furnish landlord with true and complete copies of its
most recent annual and quarterly financial statements prepared by Tenant or
Tenant's accountants and any other financial information or summaries that
Tenant typically provides to its lenders or shareholders. Landlord will maintain
the confidentiality of the above-referenced financial information, except as
otherwise required by law.
(f) Neither this Lease nor a memorandum of lease shall be filed by or on
behalf of Tenant in any public record. Landlord may prepare and file, and upon
request by Landlord Tenant will execute, a memorandum of lease.
(g) The normal rule of construction to the effect that any ambiguities are
to be resolved against the drafting party shall not be employed in the
interpretation of this Lease or any exhibits or amendments hereto.
(h) The submission by Landlord to Tenants of this Lease shall have no
binding force or effect, shall not constitute an option for the leasing of the
Premises, nor confer any right or impose any obligations upon either party until
execution of this Lease by both parties.
(i) Words of any gender used in this Lease shall be held and construed to
include any other gender, and words in the singular number shall be held to
include the plural, unless the context otherwise requires. The captions inserted
in this Lease are for convenience only and in no way define, limit or otherwise
describe the scope or intent of this Lease, or any provision hereof, or in any
way affect the interpretations of this Lease.
(j) Any amount not paid by Tenant within 5 days after its due date in
accordance with the terms of this Lease shall bear interest from such due date
until paid in full at the lesser of the highest rate permitted by applicable law
or 15 percent per year. It is expressly the intent of Landlord and Tenant at all
times to comply with applicable law governing the maximum rate or amount of any
interest payable on or in connection with this Lease. If applicable law is ever
judicially interpreted so as to render usurious any interest called for under
this Lease, or contracted for, charged, taken, reserved, or received with
respect to this Lease, then it is Landlord's and Tenant's express intent that
all excess amounts theretofore collected by Landlord be credited on the
applicable obligation (or, if the obligation has been or would thereby be paid
in full, refunded to Tenant), and the provisions of this Lease immediately shall
be deemed reformed and the amounts thereafter collectible hereunder reduced,
without the necessity of the execution of any new document, as as to comply with
the applicable law, but so as to permit the recovery of the fullest amount
otherwise called for hereunder.
(k) Construction and interpretation of this Lease shall be governed by the
laws of the state in which the Project is located, excluding any principles of
conflicts of laws.
(l) Time is of the essence as to the performance of Tenant's obligations
under this Lease.
(m) All exhibits and addenda attached hereto are hereby incorporated into
this Lease and made a part hereof. In the event of any conflict between such
exhibits or addenda and the terms of this Lease, such exhibits or addenda shall
control.
38. Intentionally deleted.
39. Limitation of Liability of Trustees, Shareholders, and Officers of
Security Capital Industrial Trust. Any obligation or liability whatsoever of
Security Capital Industrial Trust, a Maryland real estate investment
-12-
trust, which may arise at any time under this Lease or any obligation or
liability which may be incurred by it pursuant to any other instrument,
transaction, or undertaking contemplated hereby shall not be personally binding
upon, nor shall resort for the enforcement thereof be had to the property of,
its trustees, directors, shareholders, officers, employees or agents, regardless
of whether such obligation or liability is in the nature of contract, tort, or
otherwise.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the
day and year first above written.
TENANT: LANDLORD:
CVC HOLDINGS, INC., SCI LIMITED PARTNERSHIP-1,
A DELAWARE CORPORATION A DELAWARE LIMITED PARTNERSHIP
By: /s/ [Illegible] By: Security Capital Industrial Trust,
------------------ a Maryland real estate investment trust,
General Partner
Title: /s/ [Illegible]
---------------
Address:
By: /s/ [Illegible]
----------------------
000 Xxx Xxxx Name: /s/ [Illegible]
---------------------- --------------------
Rochester New York Title: /s/ [Illegible]
---------------------- -------------------
14603 Address:
----------------------
00000 X. 00xx Xxxxx
Xxxxxx, XX 00000
CC: 00000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
-13-
Rules and Regulations
1. The sidewalk, entries, and driveways of the project shall not be
obstructed by Tenant, or its agents, or used by them for any purpose other
than ingress and egress to and from the Premises.
2. Tenant shall not place any objects, including antennas, outdoor furniture,
etc., in the parking areas, landscaped areas or other areas outside of its
Premises, or on the roof of the Project.
3. Except for seeing-eye dogs, no animals shall be allowed in the offices,
halls, or corridors in the Project.
4. Tenant shall not disturb the occupants of the Project or adjoining
buildings by the use of any radio or musical instrument or by the making
of loud or improper noises.
5. If Tenant desires telegraphic, telephonic or other electric connections in
the Premises, Landlord or its agent will direct the electrician as to
where and how the wires may be introduced; and, without such direction, no
boring or cutting of wires will be permitted. Any such installation or
connection shall be made at Tenant's expense.
6. Tenant shall not install or operate any steam or gas engine or boiler, or
other mechanical apparatus in the Premises, except as specifically
approved in the Lease. The use of oil gas or inflammable liquids for
heating, lighting or any other purpose is expressly prohibited. Explosives
or other articles deemed extra hazardous shall not be brought into the
Project.
7. Parking any type of recreational vehicles is specifically prohibited on or
about the Project. Except for the overnight parking of operative vehicles,
no vehicle of any type shall be stored in the parking areas at any time.
In the event that a vehicle is disabled, it shall be removed within 48
hours. There shall be no "For Sale" or other advertising signs on or about
any parked vehicle. All vehicles shall be parked in the designated parking
areas in conformity with all signs and other markings. All parking will be
open parking, and no reserved parking, numbering or lettering of
individual spaces will be permitted except as specified by Landlord.
8. Tenant shall maintain the Premises free from rodents, insects and other
pests.
9. Landlord reserves the right to exclude or expel from the Project any
person who, in the judgment of Landlord, is intoxicated or under the
influence of liquor or drugs or who shall in any manner do any act in
violation of the Rules and Regulations of the Project.
10. Tenant shall not cause any unnecessary labor by reason of Tenant's
carelessness of indifference in the preservation of good order and
cleanliness. Landlord shall not be responsible to Tenant for any loss of
property on the Premises, however occurring, or for any damage done to the
effects of Tenant by the janitors or any other employee or person.
11. Tenant shall give Landlord prompt notice of any defects in the water, lawn
sprinkler, sewage, gas pipes, electrical lights and fixtures, heating
apparatus, or any other service equipment affecting the Premises.
12. Tenant shall not permit storage outside the Premises, including without
limitation, outside storage of trucks and other vehicles, or dumping of
waste or refuse or permit any harmful materials to be placed in any
drainage system or sanitary system in or about the Premises.
13. All moveable trash receptacles provided by the trash disposal firm for the
Premises must be kept in the trash enclosure areas, if any, provided for
that purpose.
14. No auction, public or private, will be permitted on the Premises or the
Project.
15. No awnings shall be placed over the windows in the Premises except with
the prior written consent of Landlord.
16. The Premises shall not be used for lodging, sleeping or cooking or for any
illegal purposes or for any purpose other than that specified in the
Lease. No gaming devices shall be operated in the Premises.
17. Tenant shall ascertain from Landlord the maximum amount of electrical
current which can safely be used in the Premises, taking into account the
capacity of the electrical wiring in the Project and the Premises and the
needs of other tenants, and shall not use more than such safe capacity.
Landlord's consent to the installation of electric equipment shall not
relieve Tenant from the obligation not to use more electricity than such
safe capacity.
18. Tenant assumes full responsibility for protecting the Premises from theft,
robbery and pilferage.
19. Tenant shall not install or operate on the Premises any machinery or
mechanical devices of a nature not directly related to Tenant's ordinary
use of the Premises and shall keep all such machinery free of vibration,
noise and air waves which may be transmitted beyond the Premises.
-14-
ADDENDUM I
BASE RENT ADJUSTMENTS
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED NOVEMBER 11, 1995, BETWEEN
SCI LIMITED PARTNERSHIP-I
and
CVC HOLDINGS, INC.
Base rent shall equal the following amounts for the respective periods set forth
below:
Period Monthly Base Rent
------ -----------------
Months 1-30 $10,368
Months 31-60 $10,656
-15-
ADDENDUM 2
LETTER OF CREDIT
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED 11-7, 1995, BETWEEN
SCI LIMITED PARTNERSHIP-I
and
CVC HOLDINGS, INC.
The Letter of Credit shall be in the form of an unconditional, irrevocable
letter of credit from a bank reasonably acceptable to Landlord. The primary
purpose of the Letter of Credit is to reimburse Landlord for the cost of Broker
fees paid and the Initial Improvements constructed by Landlord in the event
Tenant defaults under this Lease. As such, the Letter of Credit is separate and
distinct from the Security Deposit set forth in Paragraph 5. The Letter of
Credit may only be drawn upon the occurrence of an Event of Default under the
Lease, and only to reimburse Landlord for the cost of Broker fees paid and the
Initial Improvements constructed by Landlord to the extent Landlord is entitled
to reimbursement therefor. The approved form of Letter of Credit is attached
hereto as Item 1. If Landlord sells or conveys the Premises. Tenants shall, at
Landlord's request, corporate in having the Letter of Credit transferred to the
purchaser. If the Letter of Credit does not automatically renew as provided
therein, and Tenant does not provide an acceptable replacement Letter of Credit
at least 20 days prior to expiration of the existing Letter of Credit, Landlord
may submit a Drawing Request (as defined in the Letter of Credit) for the full
amount of the Letter of Credit than in effect.
The Letter of Credit shall be in the amount of $250,000 and shall decline
annually during the Lease Term as set forth below:
Amount of
Period Letter of Credit
------ ----------------
Months 1-12 $250,000
Months 13-24 $210,250
Months 25-36 $166,000
Months 37-48 $116,000
Month 49-60 $ 61,500
This Letter of Credit shall be in place for a minimum of two years from
the Commencement Date. Landlord shall release the Letter of Credit at any time
after two years if the following conditions have been met for the fiscal year
prior to the date of contemplated release of such Letter of Credit. Tenant shall
have a tangible net worth in excess of $5,000,000 as of the end of such prior
fiscal year and annual net income shall exceed $1,000,000. In addition, the
average annual net income for such fiscal year and the fiscal year prior to that
shall be a minimum of $750,000. The above financial milestones shall be
documented by audited financial statements.
-16-
Item 1
FORM OF LETTER OF CREDIT
[LETTERHEAD OF LETTER OF CREDIT BANK]
[DATE]
SCI-Limited Partnership-I
Attention:___________
Re: Irrevocable Transferrable Letter of Credit
No._______________________________________
Beneficiary:
By order of our client, ______________(the "Applicant"), we hereby
establish this Irrevocable Transferrable Letter of Credit No._________ in your
favor for an amount up to but not exceeding the aggregate sum of ______and
No/100 Dollars ($___________) (as reduced from time to time in accordance with
the terms hereof, the "Letter of Credit Amount"), effective immediately, and
expiring on the close of business at our office at the address set forth above
one year from the date hereof unless renewed as hereinafter provided.
Funds under this Letter of Credit are available to you on or prior to the
expiry date against presentation by you of your (i) sight drafts drawn on us in
the form of Annex 1 hereto, indicating this Letter of Credit number and (ii)
request in the form of Annex 2 hereto (such sight draft and request, together
referred to as a "Drawing Request"), sight drafts(s), completed and signed by
one of your officers. Presentation of your Drawing Requests may be made by you
to us at the address set forth above or may be made by facsimile transmission,
to the following facsimile number_____________. You may present to us one or
more Drawing Requests from time to time prior to the expiry date in an aggregate
amount not to exceed the Letter of Credit Amount then in effect (it being
understood that the honoring by us of each Drawing Request shall reduce the
Letter of Credit Amount then in effect.).
This Letter of Credit will be automatically renewed for a one-year period
upon the expiration date set forth above and upon each anniversary of such date,
unless at least sixty (60) days prior to such expiration date, or prior to any
anniversary of such date, we notify both you and the Applicant in writing by
certified mail that we elect not to so renew the Letter of Credit.
This Letter of Credit sets forth in full the terms of our undertaking and
such undertaking shall not in any way be modified, amended or amplified by
reference to any document or instrument referred to herein or in which this
Letter of Credit is referred to or to which this Letter of Credit relates, and
no such reference shall be deemed to incorporate herein by reference any
document or instrument.
All bank charges and commissions incurred in this transaction are for the
Applicant's account.
This Letter of Credit is transferrable by you and your successors and
assigns any number of times in its entirety and not in part, but only by
delivery to us of a Notice of Assignment in the form of Annex 3 hereto.
We hereby agree with the drawers, endorsers, and bona fide holders of
drafts drawn under and in compliance with the terms of this Letter of Credit
that such drafts will be duly honored upon presentation to the drawee from our
own funds and not the funds of the Applicant and shall be available to such
drawers, endorsers, and bona fide holders, as the case may be, on or before
noon, New York time, on the Business Day (defined below) next following the date
on which such drafts are received by us. "Business Day" shall mean any day which
is not a Saturday, Sunday or day on which we are required or authorized by law
to be closed in New York, New York.
To the extent not inconsistent with the express terms hereof, this Letter
of Credit shall be governed by, and construed in accordance with, the terms of
the Uniform Customs and Practice for
-17-
Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the
"UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit
shall be governed by and construed in accordance with the laws of the State of
New York
Very truly yours,
[NAME OF LETTER OF CREDIT BANK]
By: ______________________________
Name:
Title:
-18-
ANNEX 1
SIGHT DRAFT
________, 199__
For value received, at sight pay to the order of SCI-LIMITED PARTNERSHIP,
the sum of [Amount in words] [Amount in Figures] United States Dollars drawn
under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit
No. _________ dated ________________, 199_____.
SCI-LIMITED PARTNERSHIP-I,
a Delaware limited partnership
By: Security Capital Industrial Trust,
a Maryland real estate investment trust,
General Partner
By:_____________________________
Name:___________________________
Title:__________________________
-19-
ANNEX 2
DRAWING REQUEST
________________, 199___
[NAME AND ADDRESS OF LETTER
OF CREDIT BANK]
Re: Irrevocable Transferrable Letter of Credit No.---(the "Letter of
Credit")
The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter
of Credit Bank} (the "issuer") that:
(a) The Beneficiary is making a request for payment in lawful currency of
the United States of America under Irrevocable Transferrable Letter of Credit
No._________(the "Letter of Credit") in the amount of $________..
(b) The Letter of Credit Amount (as defined in the Letter of Credit) as of
the date hereof and prior to payment of the amount demanded in this Drawing
Request is $_________. The amount requested by this Drawing Request does not
exceed the Letter of Credit Amount.
(c) Demand is made for payment under the Letter of Credit as a result of
the occurrence and continuation of an Event of Default (as defined in the Lease
Agreement).
Please wire transfer the proceeds of the drawing to the following account
of the Beneficiary at the financial institution indicated below:
_________________________
_________________________
_________________________
Unless otherwise defined, all capitalized terms used herein have the
meanings provided in, or by reference in, the Letter of Credit.
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this
Drawing Request as of the ___ day of __________, 199___.
SCI-LIMITED PARTNERSHIP-I
a Delaware limited partnership
By: Security Capital Industrial Trust
a Maryland real estate investment trust,
General Partner
By:________________________________________
Name:______________________________________
Title:_____________________________________
-20-
ANNEX 3
NOTICE OF ASSIGNMENT
_______, 199___
[NAME AND ADDRESS OF
LETTER OF CREDIT BANK]
Re: Irrevocable Transferable Letter of Credit No.____
The undersigned (the "Beneficiary"), hereby notifies [Name of Letter of
Credit Bank] (the "Issuer") that it has irrevocably assigned the
above-referenced Letter of Credit to ________(the "Assignee") with an address at
________________________effective as of the date the Issuer receives this Notice
of Assignment. The assignee acknowledges and agrees that the Letter of Credit
Amount may have been reduced pursuant to the terms thereof, and that the
Assignee is bound by any such reduction.
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this
Notice of Assignment as of this ___day of_____, 199__.
SCI-LIMITED PARTNERSHIP-I
a Delaware limited partnership
By: Security Capital Industrial Trust,
a Maryland real estate investment
trust, General Partner
By:___________________________________
Name:_________________________________
Title:________________________________
Agreed:
[Assignee]
______________________
-00-
XXXXXXXX 0
XXXXXXXXXXXX - XXXXX XXXX
(ALLOWANCE)
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED 11-7, 1995, BETWEEN
SCI LIMITED PARTNERSHIP-I
and
CVC HOLDINGS, INC.
(a) Landlord agrees to furnish or perform those items of construction and
those improvements (the "Initial Improvements") as described to Exhibit B.
Landlord shall pay for the Initial Improvements up to a maximum amount of
$216,000, and Tenant shall pay for the costs of the Initial Improvements in
excess of such amount. If the cost of the Initial Improvements is estimated to
exceed $216,000, 50% of such estimated overage shall be paid in advance by
Tenant to Landlord before Landlord commences construction, with the remaining
estimated overage to be placed by Tenant in a joint escrow account for the
benefit of the Tenant and Landlord. A final accounting and adjusting payment
based upon the actual costs of the Initial Improvements minus $216,000 minus
Tenant's initial 50% advance payment shall be made by Tenant when the Initial
Improvements are complete.
(b) If Tenant shall desire any changes to the final Approved Plans and
Specifications, Tenant shall so advice Landlord in writing and Landlord shall
determine whether such changes can be made in a reasonable and feasible manner.
Any and all costs of reviewing any requested changes, and any and all net costs
attributed to making any changes to the Initial Improvements which Tenant may
request and which Landlord may agree to shall be at Tenant's sole cost and
expense and shall be paid to Landlord upon demand and before execution of the
change order.
(c) Landlord shall proceed with and complete the construction of the
Initial Improvements. As soon as such improvements have been substantially
completed, Landlord shall notify Tenant in writing of the date that the Initial
Improvements were Substantially Completed. Such date, unless otherwise agreed to
in writing between Landlord and Tenant, shall be the "Commencement Date" unless
the completion of such improvements was delayed due to Tenant's fault, including
as a result of changes made to such improvements by Tenant or development of
Tenant's "clean-room" or processing of Tenant's Class H-6 Hazardous Materials
permit, in which case the Commencement Date shall be the date such improvements
would have been completed but for the delays caused by Tenant . The Initial
Improvements shall be deemed substantially completed ("Substantially Completed")
upon the later of (A) when in the opinion of the construction manager (whether
an employee or agent of Landlord or a third party construction manager), the
Premises are substantially completed except for punch list items which do not
prevent in any material way the use of the Premises for the purposes for which
they were intended; or (B) when a final inspection is received and acceptance is
indicated by the City of Fremont building inspector ("Inspection Approval"),
provided that Tenant's "clean-room" or Class H-6 Hazardous Materials permit
shall not be part of such Inspection Approval requirement and shall not delay
the date of Substantial Completion if such "clean-room" or Class H-6 Hazardous
Materials permit application delay the issuance of such Inspections Approval.
After the Commencement Date Tenant shall, upon demand, execute and deliver to
Landlord a letter of acceptance of delivery of the Premises.
(d) The failure of Tenant to take possession of or to occupy the Premises
upon satisfaction of the conditions set forth in the previous paragraph shall
not serve to relieve Tenant of obligations arising on the Commencement Date or
delay the payment of rent by Tenant. Subject to applicable ordinances and
building codes governing Tenant's right to occupy or perform in the Premises and
subject to the provisions of Paragraph 12 of the Lease, Tenant shall be allowed
to install its tenant improvements, machinery, equipment, fixtures, or other
property on the Premises during the final stages of completion of construction
provided that Tenant does not thereby interfere with the completion of
construction or cause any labor dispute as a result of such installation, and
provided further that Tenant does hereby agree to assume all risk of loss or
damage to such improvements, machinery, equipment, fixtures, and other property
and to indemnify, defend and hold Landlord harmless from (i) any loss or damage
to such property, and all liability, loss, or damage arising from any injury to
the Project or the property of the Landlord, its contractors, subcontractors, or
materialmen arising out of such installations, whether or not
-22-
any such loss, damage or liability was caused by Landlord's negligence, and {ii}
any death or personal injury to any person or persons arising out of such
installations, except to the extent such death or personal injury was caused by
Landlord's negligence. Delay in putting Tenant in possession of the Premises
shall not serve to extend the term of this Lease or to make Landlord liable for
any damages arising therefrom.
(e) Except for incomplete punch list items, Tenant upon the Commencement
Date shall have and hold the Premises as the same shall then be without any
liability or obligation on the part of the Landlord for making any further
alterations or improvements of any kind in or about the Premises except as
otherwise provided in the Lease.
(f) If Landlord does not complete the Initial Improvements within 6 months
of the date this Lease is executed, subject to an extension for any force
majeure delays or delays caused by tenant (including without limitation, change
orders, clean room construction and approvals, and H-6 Hazardous Materials
permit processing and compliance), then Tenant may terminate this Lease
Agreement.
-23-
ADDENDUM 4
SIGN CRITERIA
GATEWAY CORPORATION CENTER II
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED 11-7, 1995, BETWEEN
SCI LIMITED PARTNERSHIP-1
and
CVC HOLDINGS, INC.
WINDOW IDENTIFICATION SIGNS:
Each Tenant will be allowed one window sign placed either to the left or the
right of the entrance door, whichever provides the best visibility.
Company names, logos or symbols will be allowed in this area-color and size to
be determined by the Tenant. All other copy in this area except for logos or
symbols will be mat white vinyl pressure sensitive letters.
Copy must state at 5' from grade, working down to no more than 3 1/2' from
grade. Sign layout including copy, sizes and color must be approved by the
building management. Management reserves the right to deny any copy or color it
considers unsuitable.
Once security decal only may be applied to the front door glass in the lower
corner if the Tenant so desires. All exterior alarm bells are to be mounted to
the rear of the building only.
DIRECTORY SIGN IDENTIFICATION
Tenant shall be allowed to utilize the entire directory sign located near the
entrance to the Premises, and is required to use pressure sensitive matte, Xxxxx
Xxxx vinyl letters with a letter height suitable for the area allowed, and logo
if so desired, also in Xxxxx Xxxx.
REAR LOADING SIGNS
Each Tenant will be allowed to identify its rear door for shipping and receiving
purposes. The company name shall be placed on a 36"x24" aluminum panel adjacent
to the rear doors. The aluminum panel shall be painted xxxx to match the
building.
Copy shall consist of 3" white vinyl capital letters only in Futura Bold style.
Company name and logos only are allowed.
Management reserves the right to deny any copy it considers unsuitable. Layout
to be approved by building management. The cost of all lettering and logos will
be he responsibility of the Tenant. No other signs are allowed in the windows or
doors.
-24-
ADDENDUM 5
RENEWAL OPTION
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED NOVEMBER 7, 1995, BETWEEN
SCI LIMITED PAPRTNERSHIP-I
and
CVC HOLDINGS, INC.
(a) Provided that as of the time of the giving of the Extension Notice and
the Commencement Date of the Extension Term (as such terms are defined below),
(x) Tenant is the Tenant originally named herrein, (y) Tenant actually occupies
all of the Premises initially demised under this Lease and any space added to
the Premises, and (z) no Event of Default exists, or would exist but for the
passage of time or the giving of notice, or both; then Tenant shall have the
right to extend the Lease Term for an additinal term of 3 years (such additional
term is hereinafter called the "Extension Term") commencing Date of the day
following the expiration of the Lease Term (hereinafter referred to as the
"Commencement Date of the Extension Term"). Tenant must give Landllord notice
(hereinafter called the "Extension Notice") of its election to extend the term
of the Lease Term at least 6 months, but not more than 9 months, prior to the
scheduled expiration date of the Lease Term.
(b) The Base Rent payable by Tenant to Landlord during the Extension Term
shall be the greater of:
(i) the Base Rent in effect on the expiration of the Lease Term (if
the Base Rent is stated as an annual or other periodic rate, adjusted for the
length of the Lease Term), and
(ii) the Fair Market Rent, as defined and determined pursuant to
Paragraphs (c), (d), and (e) below.
(c) The term "Fair Market Rent" shall mean the Base Rent, expressed as an
annual rent per square foot of floor area, which Landlord would have received
from leasing the Premises for the Extension Term to an unaffiliated person which
is not then a tenant in the Project, assuming that such space were to be
delivered in "as-is" condition, and taking into account the rental which such
other tenant would most likely have paid for such premises (excluding the clean
room buildout, but including the space occupied by the clean room and assuming a
level of buildout for the space occupied by the clean room which is comparable
to the remaineder of the Premises), including market escalations, provided that
Fair Market Rent shall not in any event be less than the Base Rent for the
Premises as of the expiration of the Lease Term. Fair Market Rent shall not be
reduced by reason of any costs or expenses saved by Landlord by reason of
Landlord's not having to find a new tenant for the Premises (including without
limitation brokerage commissions, cost of improvements necessary to prepare the
space for such tenant's occupancy, rent concession, or lost rental income during
any vacancy period). Fair Market Rent means only the rent component defined as
Base Rent in the Lease and does not include reimbursements and payments by
Tenant to Landlord with respect to operating expenses and other items payable or
reimbursable by Tenant under the Lease. In addition to its obligation to pay
Base Rent (as determined herein), Tenant shall continue to pay and reimburse
Landlord as set forth in the Lease with respect to such operating expenses and
other items with respect to the Premises during the Extension Term. The
arbitration process described below shall be limited to the determination of the
Base Rent and shall not affect or otherwise reduce or modify the Tenant's
obligation to pay or reimburse Landlord for such operating expenses and other
reimbursable items.
(d) Within 10 days after receipt of the Extension Notice, Landlord shall
notify Tenant of its determination of the Fair Market Rent (which shall be made
in Landlord's sole discretion and shall in any event be not less than the Base
Rent in effect as of the expiration of the Lease Term) for the Extension Term,
and Tenant shall advise Landlord of any objection within 10 days of receipt of
Landlord's notice. Failure to respond within the 10-day period shall constitute
Tenant's acceptance of such Fair Market Rent. If Tenant objects, Landlord and
Tenant shall commence negotiations to attempt to agree upon the Fair Market Rent
within 10 days of Landlord's receipt of Tenant's notice. If the parties cannot
agree upon such rental rate and execute an amendment (defined below) at least 5
months prior to the expiration of the Lease, each acting in good faith but
without any obligation to agree, then the Lease Term shall not be extended and
shall terminate on its scheduled termination date and Tenant shall have no
further right
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hereunder or any remedy by reason of the parties' failure to agree unless Tenant
or Landlord invokes the arbitration procedure provided below to determine the
Fair Market Rent.
(e) Arbitration to determine the Fair Market Rent shall be in accordance
with the Real Estate Valuation Arbitration Rules of the American Arbitration
Association. Unless otherwise required by state law, arbitration shall be
conducted in the metropolitan area where the Project is located by a single
arbitrator unaffiliated with either party. Either party may elect to arbitrate
by sending written notice to the other party and the Regional Office of the
American Arbitration Association within 5 days after the 10-day negotiating
period provided in Paragraph (d), invoking the binding arbitration provisions of
this paragraph. Landlord and Tenant shall each submit to the arbitrator their
respective proposal of Fair Market Rent. The arbitrator must choose between the
Landlord's proposal and the Tenant's proposal and may not compromise between the
two or select some other amount. Notwithstanding any other provision herein, the
Fair Market Rent determined by the arbitrator shall not be less than, and the
arbitrator shall have no authority to determine a Fair Market Rent less than,
the Base Rent in effect as of the scheduled expiration of the Lease Term. The
cost of the arbitration shall be paid by Landlord if the Fair Market Rent is
that proposed by Landlord and by Tenant if the Fair Market Rent is that proposed
by Tenant; and shall be borne equally otherwise. If the arbitrator has not
determined the Fair Market Rent as of the end of the Lease Term, Tenant shall
pay 105 percent of the Base Rent in effect under the Lease as of the end of the
Lease Term until the Fair Market Rent is determined as provided herein. Upon
such determination, Landlord and Tenant shall make the appropriate adjustments
to the payments between them.
(f) The parties consent to the jurisdiction of any appropriate court to
enforce the arbitration provisions of this Addendum and to enter judgment upon
the decision of the arbitrator.
(g) Except for the Base Rent as determined above, Tenant's occupancy of
the Premises during the Extension Term shall be on the same terms and condition
as are in effect immediately prior to the expiration of the initial Lease Term;
provided, however, Tenant shall have no further right to extend the Lease Term
pursuant to this addendum or to any allowances, credits or abatements or options
to expand, contract, renew or extend the Lease.
(h) If Tenant does not sent the Extension Notice within the period set
forth in Paragraph (a), Tenant's right to extend the Lease Term shall
automatically terminate. Time is of the essence as to the giving of the
Extension Notice and the notice of Tenant's objection under Paragraph (d).
(i) Landlord shall have no obligation to refurbish or otherwise improve
the Premises for the Extension Term. The Premises shall be tendered on the
Commencement Date of the Extension Term in "as-is" condition.
(j) If the Lease is extended for the Extension Term, then Landlord shall
prepare and Tenant shall execute an amendment to the Lease confirming the
extension of the Lease Term and the other provisions applicable thereto.
(k) If Tenant exercises its right to extend the term of the Lease for the
Extension Term pursuant to this Addendum, the term "Lease Term" as used in the
Lease, shall be construed to include, when practicable, the Extension Term
except as provided in (g) above.
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[GRAPHIC OMITTED]
[Printed copy has a map of Gateway Corporate Center with "EXHIBIT A"
stamped at the top]
EXHIBIT B
WORK LETTER AGREEMENT
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED 11-7, 1995, BETWEEN
SCI LIMITED PARTNERSHIP-1
and
CVC HOLDINGS, INC.
I. Initial Improvements: Plans and Specifications. Landlord and Tenant
shall prepare plans and specifications including fully detailed working drawings
(the "Plan and Specifications") for the Tenant Improvements that Tenant desires
Landlord to construct for Tenant's use in the Building. The Plans and
Specifications must be acceptable to both Landlord and Tenant, and shall be
consistent with Initial Improvements: Tenant Improvement Standards set forth
below, except as otherwise mutually agreed to in writing by Landlord and Tenant.
The Plans and Specifications shall also be consistent with and include those
items shown on the space plan attached hereto as Exhibit II and the additional
tenant improvement standards as outlined herein. Tenant shall cooperate
diligently with the Landlord's architect (the "Architect") and shall furnish all
information required by the Architect for completion of the Plans and
Specifications. Landlord and Tenant shall indicate their approval of the Plans
and Specifications (the "Approved Plans") by initialling them and attaching them
hereto as Exhibit III. All third party costs and expenses relative to creating
the Plans and Specifications shall be included within the definition of "Initial
Improvements" payable by Tenant.
II. Initial Improvements: Tenant Improvement Standards.
A. Office and Warehouse
Please refer to Exhibit I attached hereto.
B. Exclusions
The Initial Improvements do not include the following items, which shall
be paid for separately by Tenant:
1. Electrical data gathering lines or security equipment.
2. Telephonic or other communications equipment and cabling.
3. Construction of Tenant's "clean-room."
III. Changes to Plans for Initial Improvements. Once the Approved Plans
have been finally approved by Tenant as provided above, thereafter neither party
shall have the right to order extra work or change orders with respect to the
construction of the Initial Improvements without the prior written consent of
the other, which consent shall not be unreasonably withheld or delayed. All
extra work or change order requests by Tenant shall be made in writing, shall
specify the amount of delay or the time saved resulting therefrom, shall specify
any added or reduced cost resulting therefrom and shall become effective and a
part of the Approved Plans once approved in writing by both parties.
IV. Commencement and Completion of the Initial Improvements. As soon as
(a) the Approved Plans have been developed as provided above, and (b) all
necessary governmental approvals have been obtained, Landlord shall thereafter
commence construction of such improvements and shall complete such construction
in a good and workmanlike manner.
X. Xxxxx in Completion Caused by Tenant. The parties hereto acknowledge
that the date on which tenant's obligations to pay all rent payable under this
Lease would otherwise commence, may be delayed because of, among other things:
A. Tenant's request for special materials, finishes, or
installations which are not readily available and not specifically set forth in
the Plans and Specifications;
B. Change orders requested by Tenant and approved by Landlord;
-27-
C. Tenant's failure to promptly review and approve the Plans and
Specifications, promptly provide information to the City regarding Tenant's
business and/or use of the premises, or to complete any of its own improvement
work to the extent Tenant delays completion by appropriate governmental
authorities of their final inspection and approval of Landlord's improvements;
or
D. Interference with Landlord's work caused by Tenant or by Tenant's
contractor or subcontractors.
It is the intent of the parties hereto that Tenant's obligations to pay
all rent payable under this Lease may not be delayed by any of such causes or by
any other act of Tenant, and in the event it is so delayed, then Tenant's
obligation to pay such rent shall commence as of the date it would otherwise
have commenced absent said delay caused by Tenant.
VI. Tenant's Requirements. Tenant acknowledges that it shall provide
Landlord with certain information regarding its specific needs relating to the
Premises which shall be incorporated into the Plans and Specifications to
address those needs. Tenant also acknowledges that it may provide some of its
own equipment for installation in the Premises. Tenant understands and agrees
that Landlord will take no independent review of any such information, designs,
specifications or equipment to determine if same adequately addresses Tenant's
needs or are suitable for the Premises, and anything in this Lease to the
contrary notwithstanding, Landlord does not warrant, either expressly or
implied, the adequacy of any such designs, specifications or equipment or the
Initial Improvements, for Tenant's intended purpose.
-28-
EXHIBIT I
CVC PRODUCTS
SECURITY CAPITAL INDUSTRIAL TRUST
TENANT IMPROVEMENT STANDARDS
OFFICE AREA
1. CABINETS: Coffee bar and/or lunch room base cabinet(s) shall be 6'0" long
grey melamine with chrome wire pulls.
2. COUNTERTOPS: The coffee bar top shall have a square front edge with a 4"
splash in plastic laminate.
3. LAVATORY COUNTERTOPS: In all tenants spaces the toilet room lavatories
shall be installed in a plastic laminated countertop with a bullnosed
front edge and a 4" backsplash.
4. ROOF INSULATION: The insulation above conditioned office area ceilings
shall be minimum R-11 fiberglass xxxxx.
5. THERMAL WALL INSULATION: Walls between conditioned and unconditioned
spaces shall receive minimum R-11 unfaced fiberglass batt insulation.
6. ACOUSTIC INSULATION: All toilet room walls and ceilings shall receive 3
1/2" unfaced fiberglass batt acoustic insulation.
7. DOORS AND FRAMES: 3"-0" x 9-0" x1-3/4", solid core, birch, 8-3 stain
prefinished with clear anodized aluminum frames.
8. INTERIOR DOOR HARDWARE: Schlage "S" series Saturn in a brushed chrome 626
finish.
9. INTERIOR WINDOWS: 2090 tempered glass sidelights at office doors.
10. MIRRORS: toilet rooms shall have mirrors the length of the lavatory top.
11. DRYWALL PARTITIONS: office walls shall be undergrid 3-5/8" x 25 Ga. metal
studs at 24" o.c. with 5/8" gypsum board.
12. DRYWALL FINISH: All drywall and exposed concrete walls within the office
and toilet rooms shall receive a skip trowel textured.
13. WAINSCOT: Toilet room wet walls shall have 4' -6" high white Pionite
wainscot.
14. ACOUSTIC CEILING TILE: Office areas shall have an exposed grid acoustic
ceiling with 24" x 48" non-directional fissured tile, installed at 10"-0"
15. OFFICE CARPET: Designweave or Xxxx direct glue-down. 26 oz. face weight
level loop or 30 oz cut pile carpet without pad.
16. LUNCH ROOM: shall have vinyl composition tile (vct) flooring 1/8" gauge,
standard grade, as manufactured by Tarkett or Xxxxxxxxx.
17. RUBBER BASE: The office area shall have a 4" high topset rubber base as
manufactured by Burke, Roppe, or Tarkett, installed in all areas receiving
floor covering except the toilet rooms.
18. TOILET ROOM: The flooring shall be sheet vinyl by Xxxxxxxxx "Suffield",
"Best of Both Worlds" or "Seagate" with a 6" coved base.
19. PAINT: One (1) coat of paint in a standard light color interior flat
latex, except in the toilet rooms and at the coffee bar which shall
receive one (1) coat of latex semi-gloss enamel over one (1) coat of PVA
sealer.
20. TOILET ACCESSORIES: Napkin Disposals: Bobrick B-270 sanitary napkin
disposals in each women's toilet stall. Paper Towel Dispenser: Bobrick
B-369 (for single accommodation toilet rooms) or a Bobrick B-3944 (for
multiple accommodation toilet rooms) recessed paper towel dispenser with a
waste receptacle. Seat Cover Dispenser: Bobrick B-221 seat cover dispenser
in each toilet stall. Toilet Paper Holder: Bobrick B-685 double toilet
paper holder. Grab Bars: Bobrick No. B6806-36 and B6806-42 stainless steel
handicap grab bars per code.
21. TOILET PARTITIONS: Metal, floor mounted, overhead braced toilet partitions
with a backed enamel finish by Global Steel, Xxxxxxxxxxxxx or equal in
manufactures standard color.
22. BLINDS: All exterior windows, except storefront doors, shall receive
vertical blinds in a building standard color with a valance.
23 PLUMBING FIXTURES AND TRIM: Lavatory for vanity: American Standard or
equal. "Oval Horizon" model 3303.013, white, self-rimming with a Delta
Model 523 WF HDF single lever type faucet assembly with a grid strainer
and bright chrome finish.
EXHIBIT I (Continued)
Water closet: American Standard or equal. "Cadet Aquameter" elongated. 1.5
SPF, model 3042.12, white, with an Olsonite #95 seat and a Xxxxx #111
flush valve. Urinal: American Standard or equal. "Allbrook", model
6540.017, white, with a Xxxxx 180-1.5 flush valve. Coffee bar sink: Elkay
or equal, ""Peacemaker Starlite", model PSR-1918, stainless steel, with a
Delta # 100 faucet. Water heater: sized to meet demand installed in a
smitty pan draining into a hub drain with a trap primer.
24. Fire sprinkler heads shall be chrome with white escutcheons, semirecessed,
not centered, on the ceiling tiles.
25. The HVAC systems shall maintain 75 degrees indoors, on a 100 degree
outdoor day
26. The HVAC systems shall be connected to a 7-day skip-a-day time clock and
include a bypass timer at each thermostat.
27. All thermostats shall have an automatic change-over feature and a locking
cover.
28. Toilet rooms and any shower rooms shall have an exhaust fan.
29. All conditioned areas shall have supply register and a ducted return
register. Supply and return air registers shall be white baked enamel 2"
x2" with a perforated face, flush mounted. Supply air registers shall have
a 4-way blow.
30. Office lighting: shall be 2' x4" three lamp lay-in flourescent light
fixtures with standard acrylic lens and T-12 low watt type lamps, 75 foot
candles at 3" A.F.F. or as permitted by code but not less than two (2)
fixtures per office.
31. Furnish and install two (2) 110V duplex receptacles in each office
32. Furnish and install a dedicated 110 volt fourplex outlet at the telephone
board and two dedicated 110V outlets at the coffee bar.
33. Furnish and install a 2" diameter P.V.C. or steel (where required by code)
conduit for phone system from the building telephone service entrance to a
telephone board within the tenant space.
WAREHOUSE
34. FULL HEIGHT DRYWALL PARTITIONS @ tenant [ILLEGIBLE] walls: Metal studs
with one layer of 5/8" type "X" gypsum board on each side from the floor
to the roof deck.
35. OFFICE/WAREHOUSE WALL: Metal studs with two layers of 5/8" type "X" gypsum
board on each side to 6" A.F.F.
36. WAREHOUSE WALL FINISH: All drywall shall be fire taped only. Spot nails in
firetaped areas.
37. CONCRETE FLOOR SEALER: Exposed concrete floors shall receive one coat of
acrylic concrete sealer.
38. WAREHOUSE LIGHTING: Provide 16' high output flourescent strip light
fixtures or metal halide fixtures to achieve 15 foot candles of light
measured at the floor in the warehouse space.
EXHIBIT II
SPACE PLAN
[GRAPHIC OMITTED]
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EXHIBIT III
APPROVED PLANS
[Landlord and Tenant to mutually agree]
-30-
