EXHIBIT 10.10
INDUSTRIAL LEASE
THIS INDUSTRIAL LEASE ("LEASE") is made between XXXXXXX PROPERTIES, L.P., a
California limited partnership ("LANDLORD"), and SiteBrigade, Inc., a Delaware
corporation ("TENANT"), as of September 15, 1999 (the "DATE OF THIS LEASE").
BASIC LEASE INFORMATION
PROJECT: A one-story building commonly known as 0000-0000 Xxxxx Xxxxxxxxx, Xxxxx
Xxxxx, Xxxxxxxxxx
BUILDING: A one-story building commonly known as 0000-0000 Xxxxx Xxxxxxxxx,
Xxxxx Xxxxx, Xxxxxxxxxx
DESCRIPTION OF PREMISES: The Premises is located in the middle section of the
building commonly known as 0000 Xxxxx Xxxxxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx
(the Premises is as outlined in red on EXHIBIT B)
RENTABLE AREA OF PREMISES: Approximately 11,200 square feet
PERMITTED USE: A business engaged in the Internet managing service providing
turnkey solutions to the Internet enterprise market.
SCHEDULED TERM COMMENCEMENT DATE: October 15, 1999
SCHEDULED INITIAL TERM: Sixty (60) months SCHEDULED EXPIRATION DATE:
October 31, 2004
BASE RENT:
(a) Initial Annual Base Rent $ 235,200.00 (c) Subject to increase
--------------------- pursuant to Paragraph
3.1(b) as follows:
(b) Initial Monthly Installment of Base Rent: $19.600.0
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________ MONTHS 01 - 12 $19,600.00 PER MONTH
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MONTHS 12 - 24 $20,384.00 PER MONTH
MONTHS 25 - 36 $21,199.00 PER MONTH
MONTHS 37 - 48 $22,047.00 PER MONTH
MONTHS 49 - 60 $22,929.00 PER MONTH
SECURITY DEPOSIT: Fifty Eight Thousand Eight Hundred Dollars and no/100ths
($58,800.00)
ESTIMATED FIRST YEAR OPERATING EXPENSES: $1,904.00 per month
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TENANT'S PROPORTIONATE SHARE OF BUILDING: 23.33 % OF PROJECT: 23.33%
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PARKING DENSITY: FOUR (4) spaces per 1,000 rentable square feet of the Premises
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TENANT'S NAICS CODE: 51331
TENANT CONTACT: Name: XX. XXXXXX XXXX
Telephone Number: (000) 000-0000 (CELL PHONE) (000) 000-0000
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FAX: (000) 000-0000
ADDRESSES FOR NOTICES: To: Tenant To: Landlord
0000 XXXXX XXXX. 0000 XXXXXX XXXXXX
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XXXXX XXXXX, XX 00000 XXXXX XXXXX, XX 00000
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ATTN: XX. XXXXXX XXXX ATTN: XXXXXX XXXXXX
---------------------- -----------------------------
FAX: FAX (000) 000-0000
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TENANT'S BILLING ADDRESS [IF DIFFERENT FROM NOTICE ADDRESS]:
--------------------
-----------------------------------
LANDLORD'S REMITTANCE ADDRESS: X.X. Xxx 00000, Xxxx 00000, Xxx Xxxxxxxxx, XX
00000-0000
GUARANTOR: N/A
IN WITNESS WHEREOF, the parties hereto have executed this Lease, consisting
of the foregoing Basic Lease Information, the following Standard Lease
Provisions consisting of PARAGRAPHS 1 THROUGH 22 (the "STANDARD LEASE
PROVISIONS") and Exhibits A, B, C, D AND E all of which are incorporated herein
by this reference (collectively, this "LEASE"). In the event of any conflict
between the provisions of the Basic Lease Information and the provisions of the
Standard Lease Provisions, the Standard Lease Provisions shall control.
"LANDLORD" "TENANT"
SPLEKER PROPERTIES, LP., SITEBRIGADE, INC.
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a California limited partnership, a Delaware corporation
BY: XXXXXXX PROPERTIES, INC.
a Maryland corporation, its general partner
By:/S/ XXXXXX X. XXXXXXX, XX. By: /S/ XXXXXX XXXX
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Its: Xxxxxx X. Xxxxxxx, Xx. Its: Xxxxxx Xxxx
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Regional Senior Vice President Chief Executive Officer
Date: 9/22/99 Date: 9/16/99
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STANDARD LEASE PROVISIONS
1. PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord, subject to all of the terms and conditions set forth herein, those
certain premises (the "PREMISES") described in the Basic Lease Information and
as outlined in red as EXHIBIT B. The parties agree that for all purposes
hereunder the Premises shall be stipulated to contain the number of square feet
of rentable area described in the Basic Lease Information. The Premises are
located in that certain industrial building (the "BUILDING") whose street
address is as shown in the Basic Lease Information. The Building is located on
that certain land which is also improved with landscaping, parking facilities
and other improvements and appurtenances. Such land, together with all such
improvements and appurtenances and the Building, are all or part of a project
which may consist of more than one building and additional facilities, as
described in the Basic Lease Information (collectively referred to herein as the
"PROJECT"). However, Landlord reserves the right to make such changes, additions
and/or deletions to such land, the Building and the Project and/or the common
areas and parking or other facilities thereof as it shall determine from time to
time.
2. TERM.
(a) Unless earlier terminated in accordance with the provisions hereof, the
term of this Lease (the "TERM") shall be as set forth in the Basic Lease
Information; provided, however, in the event the Term Commencement Date (defined
below) occurs on a date other than the first day of a calendar month, there
shall be added to the Term the partial month ("PARTIAL LEASE MONTH") from the
Term Commencement Date to (but not including) the first day of the calendar
month following the Term Commencement Date.
(b) Subject to the provisions of this Paragraph 2, the Term shall commence
on the date (the "TERM COMMENCEMENT DATE") which is the earlier of the date
Landlord delivers the Premises to Tenant or the date Tenant takes possession or
commences use of any portion of the Premises for any business purpose (including
moving in). If this Lease contemplates the construction of tenant improvements
in the Premises by Landlord, Landlord shall be deemed to have delivered the
Premises to Tenant on the date determined by Landlord's space planner to be the
date of substantial completion of the work to be performed by Landlord (as
described in the Improvement Agreement, if any, attached hereto as EXHIBIT C)
(the "IMPROVEMENT AGREEMENT"). Notwithstanding the foregoing, in the event that
Landlord is delayed in delivering the Premises by reason of any act or omission
of Tenant, the Term Commencement Date shall be (unless Tenant takes possession
or commences use of the Premises prior thereto) the date the Premises would have
been delivered by Landlord had such Tenant caused delay(s) not occurred. This
Lease shall be a binding contractual obligation effective upon execution hereof
by Landlord and Tenant, notwithstanding the later commencement of the Term.
Tenant acknowledges that Tenant has inspected and accepts the Premises in their
present condition, "AS-IS" (WITH ALL FAULTS), except for tenant improvements (if
any) to be constructed by Landlord in the Premises pursuant to the Improvement
Agreement, if any.
(c) In the event the Term Commencement Date is delayed or otherwise does
not occur on the Scheduled Term Commencement Date specified in the Basic Lease
Information, this Lease shall not be void or voidable, the Term shall not be
extended (except as provided in Paragraph 2(a)), and Landlord shall not be
liable to Tenant for any loss or damage resulting therefrom; provided that
Tenant shall not be liable for any Rent (defined below) for any period prior to
the Term Commencement Date except as may otherwise be provided in this Lease.
Landlord may deliver to Tenant Landlord's standard form "START-UP LETTER" for
Tenant's acknowledgment and confirmation of the Term Commencement Date. Tenant
shall execute and deliver such Start-Up Letter to Landlord within five (5) days
after receipt thereof, but Tenant's failure or refusal to do so shall not negate
Tenant's acceptance of the Premises or affect determination of the Term
Commencement Date.
(D) UPON FULL EXECUTION OF THIS LEASE AGREEMENT, TENANT SHALL HAVE THE
RIGHT TO ENTER THE PREMISES PRIOR TO THE COMMENCEMENT DATE FOR THE PURPOSE OF
CABLING, PARTITION INSTALLATION. ETC. ALL TERMS AND CONDITIONS OF THIS LEASE,
EXCEPT FOR THE PAYMENT OF RENT SHALL HE IN FULL FORCE AND EFFECT FROM THE DATE
OF SUCH EARLY OCCUPANCY.
3. RENT AND OPERATION EXPENSES.
3.1 BASE RENT.
(a) Subject to the provisions of this Paragraph 3.1, Tenant agrees to
pay during the Term as Base Rent for the Premises the sums specified in the
Basic lease Information (as increased from time to time as provided in the Basic
Lease Information or as may otherwise be provided in this Lease) ("BASE RENT").
(b) Base Rent shall increase as set forth in the Basic Lease
Information or as may otherwise be provided in this Lease.
(c) Except as expressly provided to the contrary herein, Base Rent
shall be payable in equal consecutive monthly installments, in advance, without
deduction or offset, commencing on the Term Commencement Date and continuing on
the first day of each calendar month thereafter. However, the first full monthly
installment of Base Rent shall be payable upon Tenant's execution of this Lease.
If the Term Commencement Date is a day other than the first day of a calendar
month, then the Rent for the Partial Lease Month (the "PARTIAL LEASE MONTH
RENT") shall be prorated based on a month of 30 days. The Partial Lease Month
Rent shall be payable by Tenant on the first day of the calendar month next
succeeding the Term Commencement Date. Base Rent, all forms of additional rent
payable hereunder by Tenant and all other amounts, fees, payments or charges
payable hereunder by Tenant (collectively, "ADDITIONAL RENT") shall (i) each
constitute payable hereunder (and shall sometimes collectively be referred to
herein as "RENT"), (ii) be payable to Landlord in lawful money of the United
States when due without any prior demand therefor, except as may be expressly
provided to the contrary herein, and (iii) be payable to Landlord at Landlord's
Remittance Address set forth in the Basic Lease Information or to such other
person or to such other place as Landlord may from time to time designate in
writing to Tenant. Any Rent or other amounts payable to Landlord by Tenant
hereunder for any fractional month shall be prorated based on a month of 30
days.
3.2 OPERATING EXPENSES.
(a) Subject to the provisions of this Lease, Tenant shall pay to
Landlord pursuant to this Paragraph 3.2 as Additional Rent an amount equal to
Tenant's Proportionate Share (defined below) of Operating Expenses (defined
below) allocable to each Expense Year (defined below). "TENANT'S PROPORTIONATE
SHARE" is, subject to the provisions of this Paragraph 3.2, the percentage
number (representing the Premises' share of the Building and the Project) set
forth in the Basic Lease Information. An "EXPENSE YEAR" is any calendar year any
portion of which falls within the Term.
(b) "OPERATING EXPENSES" means all costs, expenses and obligations
incurred or payable by Landlord because of or in connection with the operation,
ownership, repair, replacement, restoration, management or maintenance of the
Project during or allocable to an Expense Year during the Term (other than
costs, expenses or obligations specifically attributable to Tenant or other
tenants of the Building or Project), all as determined by sound accounting
principles reasonably selected by Landlord and consistently applied, including
without limitation the following:
(i) All property taxes, assessments, charges or impositions and
other similar governmental ad valorem or other charges levied on or attributable
to the Project (including personal and real property contained therein) or its
ownership, operation or transfer, and all taxes, charges, assessments or similar
impositions imposed in lieu or substitution (partially or totally) of the same
(collectively, "TAXES"). "TAXES" shall also include (A) all taxes, assessments,
levies, charges or impositions on any interest of Landlord in the Project, the
Premises or in this Lease, or on the occupancy or use of space in the Project or
the Premises; or on the gross or net rentals or income from the Project,
including, without limitation, any gross income tax, excise tax, sales tax or
gross receipts tax levied by any federal, state or local governmental entity
with respect to the receipt of Rent; (HOWEVER, TENANT SHALL ONLY PAY FOR TAXES
ATTRIBUTABLE TO THE PROJECT AND, IN NO EVENT, SHALL TENANT PAY LANDLORD'S
CORPORATE INCOME TAX THAT IS TIED TO THE REVENUE FROM THE PROJECT); OR (B) any
possessory taxes charged or levied in lieu of real estate taxes; and
(ii) The cost of all insurance carried by Landlord with respect
to the Premises, including, without limitation, commercial general liability
insurance, "all-risk" or other property damage insurance, earthquake insurance
(if and to the extent Landlord elects to carry the same) and rental interruption
insurance (with the nature and extent of such insurance to be determined by
Landlord in its sole and absolute discretion), any deductibles under any such
insurance, and costs and fees for administration and management of the Premises
(not to exceed THREE PERCENT (3%) of Project revenues in any Expense Year),
whether by Landlord or by an independent contractor, and payments under any
covenant, condition and restriction, common area maintenance agreement,
operating, easement agreement or similar instrument allocable to the Premises as
determined in good faith by Landlord.
(c) Variable items of Operating Expenses (E.G., expenses that are
affected by variations in occupancy levels) for each Expense Year during which
actual occupancy of the Project is less than ninety-five percent (95%) of the
rentable area of the Project shall be appropriately adjusted, in accordance with
sound
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accounting principles, to reflect ninety-five percent (95%) occupancy of the
existing rentable area of the Project during such period.
(d) Prior to or shortly following the commencement of (and from time
to time during) each calendar year of the Term following the Term Commencement
Date, Landlord shall have the right to give to Tenant a written estimate of
Tenant's Proportionate Share of the projected Operating Expenses for the Project
for such year. Commencing with the first day of the calendar month following the
month in which such estimate was delivered to Tenant, Tenant shall pay such
estimated amount (less amounts, if any, previously paid toward such excess for
such year) to Landlord in equal monthly installments over the remainder of such
calendar year, in advance on the first day of each month during such year (or
remaining months, if less than all of the year remains). Subject to the
provisions of this Lease, Landlord shall endeavor to furnish to Tenant within a
reasonable period after the end of each Expense Year, a statement (a
"RECONCILIATION STATEMENT") indicating in reasonable detail Tenant's
Proportionate Share of Operating Expenses allocable to such Expense Year and the
parties shall, within thirty (30) days thereafter, make any payment or allowance
necessary to adjust Tenant's estimated payments to Tenant's actual share of
Operating Expenses as indicated by such annual Reconciliation Statement.
(e) Tenant shall pay ten (10) days before delinquency all taxes and
assessments levied against any personal property or trade fixtures of Tenant in
or about the Premises. If any such taxes or assessments are levied against
Landlord or Landlord's property or if the assessed value of the Project is
increased by the inclusion therein of a value placed upon such personal property
or trade fixtures, Tenant shall, within ten (10) days of demand, reimburse
Landlord for the taxes and assessments so levied against Landlord, or any such
taxes, levies and assessments resulting from such increase in assessed value.
(f) Any delay or failure of Landlord in (i) delivering any estimate or
statement described in this Paragraph 3.2, or (ii) computing or billing Tenant's
Proportionate Share of Operating Expenses shall not (A) constitute a waiver of
its right to subsequently deliver such estimate or statement or require any
increase in Rent contemplated by this Paragraph 3.2, or (B) in any way waive or
impair the continuing obligations of Tenant under this Paragraph 3.2. Provided
that Tenant is not then in default under this Lease, subject to compliance with
Landlord's standard procedures for the same, Tenant shall have the right, upon
the condition that Tenant shall first pay to Landlord the amount in dispute, to
have independent certified public accountants of national standing (who are not
compensated on a contingency basis) of Tenant's selection (and subject to
Landlord's reasonable approval) review Landlord's Operating Expense books and
records relating to the Expense Year subject to a particular Reconciliation
Statement during the sixty-day period following delivery to Tenant of the
Reconciliation Statement for such Expense Year. If such review discloses a
liability for a refund in excess often percent (10%) of Tenant's Proportionate
Share of Operating Expenses previously reported, the cost of such review shall
be borne by Tenant. Tenant waives the right to dispute or contest, and shall
have no right to dispute or contest, any matter relating to the calculation of
Operating Expenses or other forms of Rent under this Paragraph 3.2 with respect
to each Expense Year for which a Reconciliation Statement is given to Tenant if
no claim or dispute with respect thereto is asserted by Tenant in writing to
Landlord within sixty (60) days of delivery to Tenant of the original or most
recent Reconciliation Statement with respect thereto.
(g) This shall be a triple net Lease and Base Rent shall be paid to
Landlord absolutely net of all costs and expenses, except as specifically
provided to the contrary in this Lease. The provisions for payment of Operating
Expenses and the Operating Expense adjustment are intended to pass on to Tenant
and reimburse Landlord for all costs and expenses of the nature described in
Paragraph 3.2(b) incurred in connection with the operation, ownership, repair,
replacement, restoration, management or maintenance of the Building and/or
Project.
4. DELINQUENT PAYMENT; HANDLING CHARGES. In the event Tenant is more than FIVE
(5) days late in paying any amount of Rent or any other payment due under this
Lease, Tenant shall pay Landlord, within ten (10) days of Landlord's written
demand therefor, a late charge equal to five percent (5%) of the delinquent
amount, or $150.00, whichever amount is greater. In addition, any amount due
from Tenant to Landlord hereunder which is not paid within ten (10) days of the
date due shall bear interest at an annual rate (the "DEFAULT Rate") equal to
twelve percent (12%).
5. SECURITY DEPOSIT. Contemporaneously with the execution of this Lease, Tenant
shall pay to Landlord the amount of Security Deposit (the "SECURITY DEPOSIT")
specified in the Basic Lease Information, which shall be held by Landlord to
secure Tenant's performance of its obligations under this Lease. The Security
Deposit is not an advance payment of Rent or a measure or limit of Landlord's
damages upon a default by Tenant or an Event of Default (defined below). If
Tenant defaults with respect to any provision of this Lease, Landlord may, but
shall not be required to, use, apply or retain all or any part of the Security
Deposit (a) for the payment of any Rent or any
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other sum in default, (b) for the payment of any other amount which Landlord may
spend or become obligated to spend by reason of such default by Tenant, and (c)
to compensate Landlord for any other loss or damage which Landlord may suffer by
reason of such default by Tenant. If any portion of the Security Deposit is so
used or applied, Tenant shall, within ten (10) days after demand therefor by
Landlord, deposit with Landlord cash in an amount sufficient to restore the
Security Deposit to the amount required to be maintained by Tenant hereunder.
Within a reasonable period following expiration or the sooner termination of
this Lease, provided that Tenant has performed all of its obligations hereunder,
Landlord shall return to Tenant the remaining portion of the Security Deposit.
The Security Deposit may be commingled by Landlord with Landlord's other funds,
and no interest shall be paid thereon. If Landlord transfers its interest in the
Premises, then Landlord may assign the Security Deposit to the transferee and
thereafter Landlord shall have no further liability or obligation for the return
of the Security Deposit. Tenant hereby waives the provisions of Section 1950.7
of the California Civil Code, and all other provisions of any Regulations, now
or hereinafter in force, which restricts the amount or types of claim that a
landlord may make upon a security deposit or imposes upon a landlord (or its
successors) any obligation with respect to the handling or return of security
deposits.
6. LANDLORD'S OBLIGATIONS.
6.1 SERVICES AND UTILITIES. Tenant shall (where practicable) contract for
and pay directly when due for all water, gas, heat, air conditioning, light,
power, telephone, sewer, sprinkler charges, cleaning, waste disposal, and other
utilities and services (the "SERVICES") used on or from the Premises, together
with any taxes, penalties, surcharges or the like pertaining thereto. If any
such Services are not separately billed or metered to Tenant, Tenant shall pay
an equitable share, as determined in good faith by Landlord, of all charges
jointly billed or metered with other premises. In no case shall the
unavailability of any Service (or any diminution in the quality or quantity
thereof) or any interference in Tenant's business operations within the Premises
render Landlord liable to Tenant or any person using or occupying the Premises
under or through Tenant (including, without limitation, any contractor,
employee, agent, invitee or visitor of Tenant) (each, a "TENANT PARTY") for any
damages of any nature whatsoever caused thereby, constitute a constructive
eviction of Tenant, constitute a breach of any implied warranty by Landlord, or
entitle Tenant to any abatement of Tenant's rental obligations hereunder.
Landlord reserves the right (but shall not be obligated) to contract directly
for any such Service or to change the supplier or provider of any such Service
from time to time.
7. IMPROVEMENTS, ALTERATIONS, REPAIRS AND MAINTENANCE.
7.1 IMPROVEMENTS; ALTERATIONS. Any alterations, additions, deletions,
modifications or utility installations in, of or to the improvements contained
within the Premises (collectively, "ALTERATIONS") shall be installed at Tenant's
expense and only in accordance with detailed plans and specifications,
construction methods, and all appropriate permits and licenses, all of which
have been previously submitted to and approved in writing by Landlord, and by a
professionally qualified and licensed contractor and subcontractors approved by
Landlord. No Alterations in or to the Premises may be made without (a)
Landlord's prior written consent and (b) compliance with such nondiscriminatory
requirements and construction regulations concerning such Alterations as
Landlord may impose from time to time. Landlord will not be deemed to
unreasonably withhold its consent to any Alteration that violates Regulations
(hereinafter defined), may affect or be incompatible with the Building's
structure or its HVAC, plumbing, life-safety, electrical, mechanical or other
basic systems, or the appearance of the Building. All Alterations made in or
upon the Premises shall, (i) at Landlord's option, either be removed by Tenant
prior to the end of the Term (and Tenant shall restore the portion of the
Premises affected to its condition existing immediately prior to such
Alteration), or shall remain on the Premises at the end of the Term, (ii) be
constructed, maintained, insured and used by Tenant, at its risk and expense, in
a first-class, good and workmanlike manner, and in accordance with all
Regulations (hereinafter defined), and (iii) shall be subject to payment of
Landlord's standard alterations supervision fee. At least ten (10) days before
beginning construction of any Alteration, Tenant shall give Landlord written
notice of the expected commencement date of that construction to permit Landlord
to post and record a notice of non-responsibility. Upon substantial completion
of construction, if the law so provides, Tenant shall causes timely notice of
completion to be recorded in the office of the recorder of the county in which
the Building is located.
7.2 REPAIRS AND MAINTENANCE. Tenant shall maintain at all times during the
Term the Premises and all portions and components of the improvements and
systems contained therein in a first-class, good, clean, safe, and operable
condition, and shall not permit or allow to remain any waste or damage to any
portion of the Premises. Tenant shall repair or replace, as needed, subject to
Landlord's direction and supervision, any damage to the Building or the Project
caused by Tenant or any Tenant Party. If any such damage occurs outside of the
Premises or relates to any Building system, or if Tenant fails to perform
Tenant's obligations under this Paragraph 7.2 or under any other paragraph of
this Lease within ten (10) days' after written notice from Landlord (except in
the case of an
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emergency, in which case no notice shall be required), then Landlord may elect
to perform such obligations and repair such damage itself at Tenant's expense.
The cost of all repair or replacement work performed by Landlord under this
Paragraph 7.2, plus an administrative charge of fifteen percent (15%) of such
cost, shall be paid by Tenant to Landlord within ten (10) days of receipt of
Landlord's invoice therefor as Additional Rent. Tenant hereby waives all common
law and statutory rights or provisions inconsistent herewith, whether now or
hereinafter in effect (including, without limitation, Sections 1941, 1941.1, and
1941.2 of the California Civil Code, as amended from time to time). Landlord
shall use reasonable efforts to maintain the common areas of the Project at all
times during the Term with the cost thereof constituting an Operating Expense
under Paragraph 3.2. Tenant shall, at Tenant's own expense, enter into a
regularly scheduled preventative maintenance/service contract with a maintenance
contractor for servicing all hot water, heating and air conditioning systems and
equipment within or serving the Premises. The maintenance contractor and the
contract must be approved by Landlord. The service contract must include all
services suggested by the equipment manufacturer within the
operation/maintenance manual and must become effective and a copy thereof
delivered to Landlord within thirty (30) days after the Term Commencement Date,
Landlord may, upon notice to Tenant, enter into such a service contract on
behalf of Tenant or perform the work and in either case charge Tenant the cost
thereof along with a reasonable amount for Landlord's overhead.
7.3 MECHANIC'S LIENS. Tenant shall not cause, suffer or permit any
mechanic's or materialman's lien, claim, or stop notice to be filed or asserted
against the Premises, the Building or any funds of Landlord for any work
performed, materials furnished, or obligation incurred by or at the request of
Tenant or any Tenant Party. If any such lien, claim or notice is filed or
asserted, then Tenant shall, within ten (10) days after Landlord has delivered
notice of the same to Tenant, either (a) pay and satisfy in full the amount of
(and eliminate of record) the lien, claim or notice or (b) diligently contest
the same and deliver to Landlord a bond or other security therefor in substance
and amount (and issued by an issuer) satisfactory to Landlord.
8. USE.
8.1 PERMITTED USE. Tenant shall continuously occupy and use the Premises
only for the Permitted Use stated in the Basic Lease Information, in a manner
consistent with the standards of a first class light industrial/warehouse
project (the "PERMITTED USE") and shall not create or permit any nuisance or
unreasonable interference with or disturbance of any other tenants of Landlord,
or create any parking density with respect to Tenant or any Tenant Party at the
Project greater than that specified in the Basic Lease Information. Tenant shall
at its sole cost and expense strictly comply with all existing or future
applicable municipal, state and federal and other governmental statutes, rules,
requirements, regulations, laws and ordinances, including zoning ordinances and
regulations, and covenants, easements and restrictions of record governing and
relating to the use, occupancy or possession of the Premises, to Tenant's use of
the common areas, or to the use, storage, generation or disposal of Hazardous
Materials (hereinafter defined) (collectively "REGULATIONS"). Should any
Regulation now or hereafter be imposed on Tenant or Landlord by any governmental
body relating to the use or occupancy of the Premises by Tenant or any Tenant
Party or concerning occupational, health or safety standards for employers,
employees, or tenants, then Tenant agrees, at its sole cost and expense, to
comply promptly with such Regulations.
8.2 HAZARDOUS MATERIALS.
8.2.1 GENERAL RESTRICTIONS. Tenant shall conduct its business and
shall cause each Tenant Xxxxx to act in such a manner as to (a) not release or
permit the release of any Hazardous Material in, under, on or about the Premises
or Project, or (b) not use, store, generate, treat, dispose, disperse, handle,
manufacture, transport or dispose of (collectively, "HANDLE") any Hazardous
Materials (other than incidental amounts of customary cleaning and office
supplies) in or about the Premises or Project without the prior written consent
of Landlord, which consent Landlord may withhold in its sole and absolute
discretion ("HAZARDOUS MATERIALS CONSENT REQUIREMENTS"). "HAZARDOUS MATERIAL"
means any hazardous, explosive, radioactive or toxic substance, material or
waste which is or becomes regulated by any local, state or federal governmental
authority or agency, including, without limitation, any material or substance
which is (i) defined or listed as a "hazardous waste," "extremely hazardous
waste," "restricted hazardous waste," "hazardous substance," "hazardous
material," "pollutant" or "contaminant" under any Regulation, (ii) petroleum or
petroleum derivative, (iii) a flammable explosive, (iv) a radioactive material
or waste, (v) a polychlorinated biphenyl, (vi) asbestos or asbestos containing
material, (vii) infectious waste, or (viii) a carcinogen.
8.2.2 REQUIRED DISCLOSURES. Prior to Tenant (and at least five (5)
days prior to any assignee or any subtenant of Tenant) taking possession of any
part of the Premises, and on each anniversary of the Term Commencement Date
(each such date is hereinafter referred to as a "DISCLOSURE DATE"), until and
including the first Disclosure Date occurring after the expiration or sooner
termination of this Lease, Tenant shall disclose to Landlord
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in writing the names and amounts of all Hazardous Materials, or any combination
thereof, which were Handled on, in, under or about the Premises or Project for
the twelve (12) month period prior to such Disclosure Date, or which Tenant
intends to Handle on, under or about the Premises or Project during the twelve
(12) month period following the Disclosure Date by executing and delivering to
Landlord a "HAZARDOUS MATERIALS QUESTIONNAIRE," in the form attached hereto as
EXHIBIT E (as updated and modified by Landlord, from time to time). Tenants
disclosure obligations under this Paragraph 8.2.2 shall include a requirement
that, to the extent any information contained in a Hazardous Materials
Questionnaire previously delivered by Tenant shall become inaccurate in any
material respect, Tenant shall immediately delivery to Landlord a new updated
Hazardous Materials Questionnaire.
8.3 ADDITIONAL OBLIGATIONS. If any Hazardous Materials shall be released
into the environment comprising or surrounding the Project in connection with
the acts, omissions or operations of Tenant or any Tenant Party, Tenant shall at
its sole expense promptly prepare a remediation plan therefor consistent with
applicable Regulations and recommended industry practices (and approved by
Landlord and all governmental agencies having jurisdiction) to fully remediate
such release, and thereafter shall prosecute the remediation plan so approved to
completion with all reasonable diligence and to the satisfaction of Landlord and
applicable governmental agencies. If any Hazardous Materials are Handled in,
under, on or about the Premises or Project during the Term, or if Landlord
determines in good faith that any release of any Hazardous Material or violation
of Hazardous Materials Regulations may have occurred in, on, under or about the
Premises during the Term, Landlord may require Tenant to at Tenant's sole
expense, (i) retain a qualified environmental consultant reasonably satisfactory
to Landlord to conduct a reasonable investigation (an "ENVIRONMENTAL
ASSESSMENT") of a nature and scope reasonably approved in writing in advance by
Landlord with respect to the existence of any Hazardous Materials in, on, under
or about the Premises and providing a review of all Hazardous Materials
activities of Tenant and the Tenant Parties, and (ii) provide to Landlord a
reasonably detailed, written report, prepared in accordance with the
institutional real estate standards, of the Environmental Assessment.
9. ASSIGNMENT AND SUBLETTING.
9.1 TRANSFERS; CONSENT. Tenant shall not, without the prior written consent
of Landlord, (a) assign, transfer, mortgage, hypothecate, or encumber this Lease
or any estate or interest herein, whether directly, indirectly or by operation
of law, (b) permit any other entity to become a Tenant hereunder by merger,
consolidation, or other reorganization, (c) if Tenant is a corporation,
partnership, limited liability company. limited liability partnership, trust,
association or other business entity (other than a corporation whose stock is
publicly traded), permit, directly or indirectly, the transfer of any ownership
interest in Tenant so as to result in (i) a change in the current control of
Tenant, (ii) a transfer of twenty-five percent (25%) or more in the aggregate in
any twelve (12) month period in the beneficial ownership of such entity or (iii)
a transfer of all or substantially all of the assets of Tenant, (d) sublet any
portion of the Premises, or (e) grant any license, concession, or other right of
occupancy of or with respect to any portion of the Premises, or (f) permit the
use of the Premises by any party other than Tenant or a Tenant Party (each of
the events listed in this Paragraph 9.1 being referred to herein as a
"TRANSFER"). If Tenant requests Landlord's consent to any Transfer, then at
least twenty (20) business days prior to the effective date of the proposed
Transfer, Tenant shall provide Landlord with a written description of all terms
and conditions of the proposed Transfer and all consideration therefor
(including a calculation of the Transfer Profits described below), copies of the
proposed documentation, and the following information relating to the proposed
transferee: name and address; information reasonably satisfactory to Landlord
concerning the proposed transferee's business and business history; its proposed
use of the Premises (including, without limitation, any proposed use of
Hazardous Materials); banking, financial, and other credit information; and
general references sufficient to enable Landlord to determine the proposed
transferee's creditworthiness and character. Landlord shall not unreasonably
withhold its consent to any assignment or subletting of the Premises, provided
that the parties agree that it shall be reasonable for Landlord to withhold any
such consent if, without limitation, Landlord determines in good faith that (A)
the proposed transferee is not of a reasonable financial standing or is not
creditworthy, (B) the proposed transferee is a governmental agency, (C) the
proposed transferee, or any affiliate thereof, is then an occupant in the
Project or has engaged in discussions with Landlord concerning a lease of direct
space in the Project, (D) the proposed Transfer would result in a breach of any
obligation of Landlord or permit any other tenant in the Project to terminate or
modify its lease, (E) there is then in effect an uncured Event of Default, (F)
the business or operations of the proposed transferee would involve the Handling
of Hazardous Materials in, on, or about the Premises, (G) the proposed
transferee does not enjoy a good reputation, as a business or as a tenant; or
(H) any guarantor of the Lease does not consent to such Transfer in a form
satisfactory to Landlord. Any Transfer made without Landlord's consent shall be
void and, at Landlord's election, shall constitute an Event of Default by
Tenant. Tenant shall also, within ten (10) days of written demand therefor, pay
to Landlord $500 as a review fee for each Transfer request, and reimburse
Landlord for its reasonable attorneys' fees and all other costs incurred in
connection with considering any request for consent to a proposed Transfer. If
Landlord consents to a proposed Transfer, then the proposed transferee shall
deliver to Landlord Landlord's standard
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form transfer consent and agreement whereby the proposed transferee expressly
assumes the Tenant's obligations hereunder. Landlord's consent to a Transfer
shall not release Tenant from its obligations under this Lease (or any guarantor
of this Lease of its obligations with respect thereto), but rather Tenant and
its transferee shall be jointly and severally liable for all obligations under
this Lease allocable to the space subject to such Transfer. Landlord's consent
to any Transfer shall not waive Landlord's rights as to any subsequent
Transfers. In the event of any claim by Tenant that Landlord has breached its
obligations under this Paragraph 9.1, Tenant's remedies shall be limited to
recovery of its out-of-pocket damages and injunctive relief.
9.2 CANCELLATION AND RECAPTURE. Notwithstanding Paragraph 9.1, Landlord may
(but shall not be obligated to), within ten (10) business days after submission
of Tenant's written request for Landlord's consent to an assignment or
subletting, cancel this Lease as to the portion of the Premises proposed to be
sublet or subject to an assignment of this Lease ("TRANSFER SPACE") as of the
date such proposed Transfer is proposed to be effective and, thereafter,
Landlord may lease such portion of the Premises to the prospective transferee
(or to any other person or entity or not at all) without liability to Tenant. If
Landlord shall not cancel this Lease within such ten (10) business day period
and notwithstanding any Landlord consent to the proposed Transfer, Tenant shall
pay to Landlord, immediately upon receipt thereof, the entire excess ("TRANSFER
PROFITS") of all compensation and other consideration paid to or for the benefit
of Tenant (or any affiliate thereof) for the Transfer in excess of Base Rent and
Additional Rent payable by Tenant hereunder (with respect to the Transfer Space)
during the remainder of the Term (after straight-line amortization of any
reasonable brokerage commissions and tenant improvement costs paid by Tenant in
connection with the Transfer over the term of the Transfer). In any assignment
or subletting undertaken by Tenant, Tenant shall diligently seek to obtain the
maximum rental amount available in the marketplace for comparable space
available for primary leasing.
10. INSURANCE, WAIVERS, SUBROGATION AND INDEMNITY.
10.1 INSURANCE. Tenant shall maintain throughout the Term each of the
insurance policies described on EXHIBIT D attached hereto and shall otherwise
comply with the obligations and requirements provided on EXHIBIT D.
10.2 WAIVER OF SUBROGATION. Landlord and Tenant each waives any claim, loss
or cost it might have against the other for any injury to or death of any person
or persons, or damage to or theft, destruction, loss, or loss of use of any
property (a "LOSS"), to the extent the same is insured against (or is required
to be insured against under the terms hereof) under any "all risk" property
damage insurance policy covering the Building, the Premises, Landlord's or
Tenant's fixtures. personal property, leasehold improvements, or business,
regardless of whether the negligence of the other party caused such Loss.
10.3 INDEMNITY. Subject to Paragraph 10.2, Tenant shall indemnify, defend
and hold Landlord, Xxxxxxx Properties, Inc., and each of their respective
directors, shareholders, partners, lenders, members, managers, contractors,
affiliates and employees (collectively, "LANDLORD INDEMNITEES") from and against
all claims, demands, proceedings, losses, obligations, liabilities, causes of
action, suits, judgments, damages, penalties, costs and expenses (including,
without limitation, reasonable attorneys' fees and court costs) arising from or
asserted in connection with the use or occupancy of the Premises by Tenant or
any Tenant Party, including, without limitation, by reason of any release (or
any Handling) of any Hazardous Materials by Tenant or any Tenant Party in,
under, on, or about the Project, or any negligence or misconduct of Tenant or of
any Tenant Party in or about the Premises, or Tenant's breach of any of its
covenants under this Lease, except in each case to the extent arising from the
gross negligence or willful misconduct of Landlord or any Landlord Indemnitee.
Except to the extent expressly provided in this Lease, Tenant hereby waives all
claims against and releases Landlord and each Landlord Indemnitee for any injury
to or death of persons, damage to property or business loss in any manner
related to (i) Tenant's use and occupancy of the Premises, (ii) acts of God,
(iii) acts of third parties, or (iv) any matter outside of the reasonable
control of Landlord. This Paragraph 10.3 shall survive termination of expiration
of this Lease.
11. SUBORDINATION; ATTORNMENT.
11.1 SUBORDINATION. This Lease is subject and subordinate to all present
and future ground or master leases of the Project and to the lien of all
mortgages or deeds of trust (collectively, "SECURITY INSTRUMENTS") now or
hereafter encumbering the Project, if any, and to all renewals, extensions,
modifications, consolidations and replacements thereof, and to all advances made
or hereafter to be made upon the security of any such Security Instruments,
unless the holders of any such mortgages or deeds of trust, or the lessors under
such ground or master leases (such holders and lessors are sometimes
collectively referred to herein as "HOLDERS") require in writing that this Lease
be superior thereto. Notwithstanding any provision of this Paragraph 11 to the
contrary, any Holder of any Security Instrument may at any time subordinate the
lien of its Security Instrument to this Lease without obtaining
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Tenant's consent by giving Tenant written notice of such subordination, in which
event this Lease shall be deemed to be senior to the Security Instrument in
question. Tenant shall, within fifteen (15) days of request to do so by
Landlord, execute, acknowledge and deliver to Landlord such further instruments
or assurances as Landlord may deem necessary or appropriate to evidence or
confirm the subordination or superiority of this Lease to any such Security
Instrument; provided, however, that at the request of Tenant made within five
(5) days of any such Landlord request, Landlord shall use commercially
reasonable efforts to obtain for the benefit of Tenant such Holder's standard
nondisturbance agreement. Tenant hereby irrevocably authorizes Landlord to
execute and deliver in the name of Tenant any such instrument or instruments if
Tenant fails to do so within said fifteen (15) day period.
11.2 ATTORNMENT. Tenant covenants and agrees that in the event that any
proceedings are brought for the foreclosure of any mortgage or deed of trust, or
if any ground or master lease is terminated, it shall attorn, without any
deductions or set-offs whatsoever, to the purchaser upon any such foreclosure
sale, or to the lessor of such ground or master lease, as the case may be, if so
requested to do so by such purchaser or lessor, and to recognize such purchaser
or lessor as "Landlord" under this Lease. If requested, Tenant shall enter into
a new lease with that successor on the same terms and conditions as are
contained in this Lease (for the unexpired portion of the Term then remaining).
12. RULES AND REGULATIONS. Tenant shall comply, and shall cause each Tenant
Party to comply, with the Rules and Regulations of the Building which are
attached hereto as EXHIBIT A, and all such nondiscriminatory modifications,
additions, deletions and amendments thereto as Landlord shall adopt in good
faith from time to time.
13. CONDEMNATION. If the entire Project or Premises are taken by right of
eminent domain or conveyed by Landlord in lieu thereof (a "TAKING"), this Lease
shall terminate as of the date of the Taking. If any part of the Project becomes
subject to a Taking and such Taking will prevent Tenant from conducting its
business in the Premises in a manner reasonably comparable to that conducted
immediately before such Taking for a period of more than one hundred eighty
(180) days, then Tenant may terminate this Lease as of the date of such Taking
by giving written notice to Landlord within thirty (30) days after the Taking,
and all Rent paid or payable hereunder shall be apportioned between Landlord and
Tenant as of the date of such Taking. If any material portion, but less than
all, of the Project, Building or the Premises becomes subject to a Taking, or if
Landlord is required to pay any of the proceeds received for a Taking to any
Holder of any Security Instrument, then landlord may terminate this Lease by
delivering written notice thereof to Tenant within thirty (30) days after such
Taking, and all Rent paid or payable hereunder shall be apportioned between
Landlord and Tenant as of the date of such Taking. If this Lease is not so
terminated, then Base Rent thereafter payable hereunder shall be abated for the
duration of the Taking in proportion to that portion of the Premises rendered
untenantable by such Taking. If any Taking occurs, then Landlord shall receive
the entire award or other compensation for the land on which the Project is
situated, the Project, and other improvements taken, and Tenant may separately
pursue a claim (to the extent it will not reduce Landlord's award) against the
condemnor for the value of Tenant's personal property which Tenant is entitled
to remove under this Lease and moving and relocation costs. Landlord and Tenant
agree that the provisions of this Paragraph 13 and the remaining provisions of
this Lease shall exclusively govern the rights and obligations of the parties
with respect to any Taking of any portion of the Premises, the Building, the
Project or the land on which the Building is located, and Landlord and Tenant
hereby waive and release each and all of their respective common law and
statutory rights inconsistent herewith, whether now or hereinafter in effect
(including, without limitation, Section 1265.130 of the California Code of Civil
Procedure, as amended from time to time).
14. FIRE OR OTHER CASUALTY.
14.1 REPAIR ESTIMATE; RIGHT TO TERMINATE. If all or any portion of the
Premises, the Building or the Project is damaged by fire or other casualty (a
"CASUALTY"), Landlord shall, within ninety (90) days after Landlord's discovery
of such damage, deliver to Tenant its good faith estimate (the "DAMAGE NOTICE")
of the time period following such notice needed to repair the damage caused by
such Casualty. Landlord may elect to terminate this Lease in any case where (a)
any portion of the Premises or any material portion of the Project are damaged
and (b) either (i) Landlord estimates in good faith that the repair and
restoration of such damage under Paragraph 14.2 ("RESTORATION") cannot
reasonably be completed (without the payment of overtime) within two hundred
(200) days of Landlord's actual discovery of such damage, (ii) the Holder of any
Security Instrument requires the application of any insurance proceeds with
respect to such Casualty to be applied to the outstanding balance of the
obligation secured by such Security Instrument, (iii) the cost of such
Restoration is not fully covered by insurance proceeds available to Landlord
and/or payments received by Landlord from tenants, or (iv) Tenant shall be
entitled to an abatement of rent under this Paragraph 14 for any period of time
in excess of thirty-three percent (33%) of the remainder of the Term. Such right
of termination shall be exercisable by Landlord by delivery of written notice to
Tenant at any time following the Casualty until forty-five (45) days following
the later of (A) delivery of the Damage
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Notice or (B) Landlord's discovery or determination of any of the events
described in clauses (i) through (iv) of the preceding sentence, and shall be
effective upon delivery of such notice of termination (or if Tenant has not
vacated the Premises, upon the expiration of thirty (30) days thereafter).
14.2 REPAIR OBLIGATION; ABATEMENT OF RENT. Subject to the provisions of
Paragraph 14.1, Landlord shall, within a reasonable time after the discovery by
Landlord of any damage resulting from a Casualty, begin to repair the damage to
the Building and the Premises resulting from such Casualty and shall proceed
with reasonable diligence to restore the Building and Premises to substantially
the same condition as existed immediately before such Casualty, except for
modifications required by Regulations, and modifications to the Building or the
Project reasonably deemed desirable by Landlord; provided, however, that
Landlord shall not be required as part of the Restoration to repair or replace
any of the Alterations, furniture, equipment, fixtures, and other improvements
which may have been placed by, or at the request of, Tenant or other occupants
in the Building or the Premises. Landlord shall have no liability for any
inconvenience or annoyance to Tenant or injury to Tenant's business as a result
of any Casualty, regardless of the cause therefor. Base Rent, and Additional
Rent payable under Paragraph 3.2, shall xxxxx if and to the extent a Casualty
damages the Premises or common areas in the Project required and essential for
access thereto and as a result thereof all or a material portion of the Premises
are rendered unfit for occupancy, and are not occupied by Tenant, for the period
of time commencing on the date Tenant vacates the portion of the Premises
affected on account thereof and continuing until the date the Restoration to be
performed by Landlord with respect to the Premises (and/or required common
areas) is substantially complete, as determined by Landlord's architect.
Landlord and Tenant agree that the provisions of this Paragraph 14 and the
remaining provisions of this Lease shall exclusively govern the rights and
obligations of the parties with respect to any and all damage to, or destruction
of, all or any portion of the Premises or the Project by Casualty, and Landlord
and Tenant hereby waive and release each and all of their respective common law
and statutory rights inconsistent herewith, whether now or hereinafter in effect
(including, without limitation, Sections 1932(2) and 1933(4) of the California
Civil Code, as amended from time to time).
15. PARKING. Tenant shall have the right to the nonexclusive use of the parking
facilities of the Project for the parking of motor vehicles used by Tenant and
Tenant Parties only; such rights arc not transferable without Landlord's
approval. The use of such parking facilities shall be subject to such rules and
regulations as are adopted by Landlord from time to time for the use of such
facilities.
16. EVENTS OF DEFAULT. Each of the following occurrences shall be an "EVENT OF
DEFAULT" and shall constitute a material default and breach of this Lease by
Tenant: (a) any failure by Tenant to pay any installment of Base Rent,
Additional Rent or to make any other payment required to be made by Tenant
hereunder when due; (b) the abandonment or vacation of the Premises by Tenant,
provided, however, that abandonment or vacation of the Premises shall not be an
Event of Default so long as no other Event of Default has occurred hereunder and
provided Tenant has given Landlord five (5) days' prior written notice of its
intent to vacate the Premises; (c) any failure by Tenant to execute and deliver
any estoppel certificate or other document or instrument described in Paragraphs
10 (insurance), II (subordination) or 21.2 (estoppel certificates) requested by
Landlord, where such failure continues for five(5) days after delivery of
written notice of such failure by Landlord to Tenant; (d) any failure by Tenant
to fully perform any other obligation of Tenant under this Lease, where such
failure continues for thirty (30) days (except where a shorter period of time is
specified in this Lease, in which case such shorter time period shall apply)
after delivery of written notice of such failure by Landlord to Tenant; (e) the
voluntary or involuntary filing of a petition by or against Tenant or any
general partner of Tenant (i) in any bankruptcy or other insolvency proceeding,
(ii) seeking any relief under any state or federal debtor relief law, (iii) for
the appointment of a liquidator or receiver for all or substantially all of
Tenant's property or for Tenant's interest in this Lease, or (iv) for the
reorganization or modification of Tenant's capital structure (provided, however,
that if such a petition is filed against Tenant, then such filing shall not be
an Event of Default unless Tenant fails to have the proceedings initiated by
such petition dismissed within sixty (60) days after the filing thereof); (f)
the default of any guarantor of Tenant's obligations hereunder under any
guaranty of this Lease, the attempted repudiation or revocation of any such
guaranty, or the participation by any such guarantor in any other event
described in this Paragraph 16 (as if this Paragraph 16 referred to such
guarantor in place of Tenant); (g) any release of any Hazardous Material in
violation of Regulations by reason of the acts or omissions of Tenant or any
Tenant Party, or any violation of the Hazardous Material Consent Requirements;
or (h) any other event, act or omission which any other provision of this Lease
identifies as an Event of Default. Any notice of any failure of Tenant required
under this Paragraph 16 shall be in lieu of, and not in addition to, any notice
required under Section 1161 ET SEQ. of the California Code of Civil Procedure.
17. REMEDIES. Upon the occurrence of any Event of Default by Tenant, Landlord
shall have, in addition to any other remedies available to Landlord at law or in
equity (all of which remedies shall be distinct, separate, and
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cumulative), the option to pursue any one (1) or more of the following remedies,
each and all of which shall be cumulative and nonexclusive, without any notice
or demand whatsoever:
(a) Terminate this Lease, and Landlord may recover from Tenant the
following: (i) the worth at the time of any unpaid rent which has been earned at
the time of such termination; plus (ii) the worth at the time of award of the
amount by which the unpaid rent which would have been earned alter termination
until the time of award exceeds the amount of such rental loss that Tenant
proves could have been reasonably avoided; plus (iii) the worth at the time of
award of the amount by which the unpaid rent for the balance of the term after
the time of award exceeds the amount of such rental loss that Tenant proves
could have been reasonably avoided; plus (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 which in the ordinary course of
things would be likely to result therefrom (specifically including, without
limitation, brokerage commissions and advertising expenses incurred, expenses of
remodeling the Premises or any portion thereof for a new tenant, whether for the
same or a different use, and any special concessions made to obtain a new
tenant); and (v) at Landlord's election, such other amounts in addition to or in
lieu of the foregoing as may be permitted from time to time by applicable law.
The term "RENT" as used in this Paragraph 17(a) shall be deemed to be and to
mean all sums of every nature required to be paid by Tenant pursuant to the
terms of this Lease, whether to Landlord or to others. As used in Paragraphs
17(a)(i) and (ii), above, the "WORTH AT THE TIME OF AWARD" shall be computed by
allowing interest at the Default Rate, but in no case greater than the maximum
amount of such interest permitted by law. As used in Paragraph 17(a)(iii) above,
the "WORTH AT THE TIME OF AWARD" shall be 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 (1%).
(b) Landlord shall have the remedy described in California Civil Code
Section 1951.4 (lessor may continue lease in effect after lessee's breach and
abandonment and recover rent as it becomes due, if lessee has the right to
sublet or assign, subject only to reasonable limitations). Accordingly, if
Landlord does not elect to terminate this Lease on account of any Event of
Default by Tenant, Landlord may, from time to time, without terminating this
Lease, enforce all of its rights and remedies under this Lease, including the
right to recover all Rent as it becomes due.
(c) Landlord shall at all times have the rights and remedies (which shall
be cumulative with each other and cumulative and in addition to those rights and
remedies available under Paragraphs 17(a) and 17(b) above, or any law or other
provision of this Lease), without prior demand or notice except as required by
applicable law, to seek any declaratory, injunctive, or other equitable relief,
and specifically enforce this Lease, or restrain or enjoin a violation or breach
of any provision hereof.
(d) Following the occurrence of three instances of payment of Rent more
than ten (10) days late in any twelve (12) month period, the late charge set
forth in Paragraph 4 shall apply from the date payment was due and Landlord may,
without prejudice to any other rights or remedies available to it, upon written
notice to Tenant, require that all remaining monthly installments of Rent
payable under this Lease shall be payable by cashier's check or electronic funds
transfer three (3) months in advance, and may require that Tenant increase the
Security Deposit to an amount equal to three times the current month's Rent at
the time of the most recent default. In addition, (i) upon the occurrence of an
Event of Default by Tenant, if the Premises or any portion thereof are sublet,
Landlord may, at its option and in addition and without prejudice to any other
remedies herein provided or provided by law, collect directly from the
sublessee(s) all rentals becoming due to the Tenant and apply such rentals
against other sums due hereunder to Landlord; (ii) without prejudice to any
other right or remedy of Landlord, if Tenant shall be in default under this
Lease, Landlord may cure the same at the expense of Tenant (A) immediately and
without notice in the case (1) of emergency, (2) where such default unreasonably
interferes with any other tenant in the Building, or (3) where such default will
result in the violation of any Regulation or the cancellation of any insurance
policy maintained by Landlord, and (B) in any other case if such default
continues for ten (10) days following the receipt by Tenant of notice of such
default from Landlord and all costs incurred by Landlord in curing such
default(s), including, without limitation, attorneys' fees, shall be
reimbursable by Tenant as Rent hereunder upon demand, together with interest
thereon, from the date such costs were incurred by Landlord, at the Default
Rate; and (iii) Tenant hereby waives for Tenant and for all those claiming under
Tenant all rights now and hereafter existing to redeem by order or judgment of
any court or by any legal process or writ, Tenant's right of occupancy of the
Premises after any termination of this Lease.
18. SURRENDER OF PREMISES. No act by Landlord shall be deemed an acceptance of a
surrender of the Premises, and no agreement to accept a surrender of the
Premises shall be valid unless it is in writing and signed by Landlord. At the
expiration or earlier termination of this Lease, Tenant shall deliver to
landlord all keys (including any electronic access devices and the like) to the
Premises, and Tenant shall deliver to Landlord the Premises in the same
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condition as existed on the date Tenant originally took possession thereof,
ordinary wear and tear excepted, provided that ordinary wear and tear shall not
include repair and clean up items. By way of example, but without limitation,
repair and clean up items shall include cleaning of all interior walls and
floors, replacement of damaged or missing ceiling or floor tiles, window
coverings or cover plates, removal of any Tenant-introduced markings, repair of
all holes and gaps and repainting required thereby, the removal of any storage
tanks installed by Tenant or any Tenant Party, the removal and full remediation
of any soil, material or ground water contamination by Tenant or any Tenant
Party in accordance with all Regulations and all requirements hereunder, as well
as the removal requirements below. In addition, prior to the expiration of the
Term or any sooner termination thereof, (a) Tenant shall remove such Alterations
as Landlord shall request and shall restore the portion of the Premises affected
by such Alterations and such removal to its condition existing immediately prior
to the making of such Alterations, (b) Tenant shall remove from the Premises all
unattached trade fixtures, furniture, equipment and personal property located in
the Premises, including, without limitation, phone equipment, wiring, cabling
and all garbage, waste and debris, and (c) Tenant shall repair all damage to the
Premises or the Project caused by any such removal including, without
limitation, full restoration of all holes and gaps resulting from any such
removal and repainting required thereby. All personal property and fixtures of
Tenant not so removed shall, to the extent permitted under applicable
Regulations, be deemed to have been abandoned by Tenant and may be appropriated,
sold, stored, destroyed, or otherwise disposed of by Landlord without notice to
Tenant and without any obligation to account for such items.
19. HOLDING OVER. If Tenant holds over after the expiration or earlier
termination of the Term hereof, with or without the express or implied consent
of Landlord, Tenant shall become and be only a tenant at sufferance at a daily
rent equal to one-thirtieth of the greater of (a) the then prevailing monthly
fair market rental rate as determined by Landlord in its sole and absolute
discretion, or (b) two hundred percent (200%) of the monthly installment of Base
Rent (and estimated Additional Rent payable under Paragraph 3.2) payable by
Tenant immediately prior to such expiration or termination, and otherwise upon
the terms, covenants and conditions herein specified, so far as applicable, as
reasonably determined by Landlord. Neither any provision hereof nor any
acceptance by Landlord of any Rent after any such expiration or earlier
termination (including, without limitation, through any "lockbox") shall be
deemed a consent to any holdover hereunder or result in a renewal of this Lease
or an extension of the Term, or any waiver of any of Landlord's rights or
remedies with respect to such holdover. Notwithstanding any provision to the
contrary contained herein, (i) Landlord expressly reserves the right to require
Tenant to surrender possession of the Premises upon the expiration of the Term
or upon the earlier termination hereof or at any time during any holdover, and
the right to assert any remedy at law or in equity to evict Tenant and collect
damages in connection with any such holdover, and (ii) Tenant shall indemnity,
defend and hold Landlord harmless from and against any and all claims, demands,
actions, proceedings, losses, damages, liabilities, obligations, penalties,
costs and expenses, including, without limitation, all lost profits and other
consequential damages, attorneys' fees, consultants' fees and court costs
incurred or suffered by or asserted against Landlord by reason of Tenant's
failure to surrender the Premises on the expiration or earlier termination of
this Lease in accordance with the provisions of this Lease.
20. SUBSTITUTION SPACE. Upon at least sixty (60) days' prior written notice,
Landlord may relocate Tenant within the Project (or to any other facility owned
by Landlord within the vicinity of the Project) to space which is comparable in
size, utility and condition to the Premises. If Landlord relocates Tenant,
Landlord shall (a) reimburse Tenant for Tenant's reasonable out-of-pocket
expenses for moving Tenant's furniture, equipment and supplies from the Premises
to the relocation space and for reprinting Tenant's stationery of the same
quality and quantity as Tenant's stationery supply on hand immediately before
Landlord's notice to Tenant of the exercise of this relocation right, and (b)
improve the relocation space with improvements substantially similar to those
Landlord is committed to provide or has provided in the Premises under this
Lease. Upon such relocation, the relocation space shall be deemed to be the
Premises and the terms of this Lease shall remain in full force and shall apply
to the relocation space; provided, however, that (i) if the rentable area of the
relocation space is smaller than rentable area of the Premises, then Tenant
shall be entitled (from and after the relocation date) to a reduction in Base
Rent in proportion to the reduction in the rentable area of the Premises, with a
corresponding reduction in Tenant's Proportionate Share and (ii) if the rentable
area of the relocation space is larger than the rentable area of the Premises,
then the Base Rent and Tenant's Proportionate Share shall not be modified in any
way.
21. MISCELLANEOUS.
21.1 LANDLORD TRANSFERS AND LIABILITY. Landlord may, without restriction,
sell, assign or transfer in any manner all or any portion of the Project, any
interest therein or any of Landlord's rights under this Lease. If Landlord
assigns its rights under this Lease, then Landlord shall automatically be
released from any further obligations hereunder, provided that the assignee
thereof assumes in writing all of the Landlord's obligations hereunder accruing
after such assignment. The liability of Landlord to Tenant for any default by
Landlord under the terms of this Lease or with respect to any obligation or
liability related to the Premises or the Project shall be
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recoverable only from the interest of Landlord in the Project, and neither
Landlord nor any affiliate thereof shall have any personal liability with
respect thereto and in no case shall Landlord be liable to Tenant for any lost
profits, damage to business, or any form of special, indirect or consequential
damage on account of any breach of this Lease.
21.2 ESTOPPEL CERTIFICATES; FINANCIAL STATEMENTS. At any time and from time
to time during the Term, Tenant shall, without charge, execute, acknowledge and
deliver to Landlord within ten (10) days after Landlord's request therefor, an
estoppel certificate in recordable form containing such factual certifications
and other provisions as are found in the estoppel certificate forms requested by
institutional tenders and purchasers. Tenant agrees in any case that (a) the
foregoing certificate may be retied on by anyone holding or proposing to acquire
any interest in the Project from or through Landlord or by any mortgagee or
lessor or prospective mortgagee or lessor of the Project or of any interest
therein and (b) the form of estoppel certificate shall be in the form of, at
Landlord's election, the standard form of such present or prospective lender,
lessor or purchaser (or any form substantially similar thereto), or any other
form that Landlord shall reasonably select. At the request of Landlord from time
to time, Tenant shall provide to Landlord within ten (10) days of Landlord's
request therefor Tenant's and any guarantor's current financial statements.
21.3 NOTICES. Notices, requests, consents or other communications desired
or required to be given by or on behalf of Landlord or Tenant under this Lease
shall be effective only if given in writing and sent by (a) registered or
certified United States mail, postage prepaid, (b) nationally recognized express
mail courier that provides written evidence of delivery, fees prepaid, or (c)
facsimile and United States mail, postage prepaid, and addressed as set forth in
the Basic Lease Information, or at such other address in the State of California
as may be specified from time to time, in writing, or, if to Tenant, at the
Premises. Any such notice, request, consent, or other communication shall only
be deemed given (i) if sent by registered or certified United States mail, on
the day it is officially delivered to or refused by the intended recipient, (ii)
if sent by nationally recognized express mail courier, on the date it is
officially recorded by such courier, (iii) if delivered by facsimile, on the
date the sender obtains written telephonic confirmation that the electronic
transmission was received, or (iv) if delivered personally, upon delivery or, if
refused by the intended recipient, upon attempted delivery.
21.4 PAYMENT BY TENANT; NON-WAIVER. Landlord's acceptance of Rent
(including, without limitation, through any "LOCKBOX") following an Event of
Default shall not waive Landlord's rights regarding such Event of Default. No
waiver by Landlord of any violation or breach of any of the terms contained
herein shall waive Landlord's rights regarding any future violation of such
terms. Landlord's acceptance of any partial payment of Rent shall not waive
Landlord's rights with regard to the remaining portion of the Rent that is due,
regardless of any endorsement or other statement on any instrument delivered in
payment of Rent or any writing delivered in connection therewith; accordingly,
Landlord's acceptance of a partial payment of Rent shall not constitute an
accord and satisfaction of the full amount of the Rent that is due.
21.5 CERTAIN RIGHTS RESERVED BY LANDLORD. Landlord hereby reserves and
shall have the following rights with respect to the Premises and the Project:
(a) to make inspections, repairs, or improvements, whether structural or
otherwise, in and about the Premises or any part thereof; and (b) to enter the
Premises at reasonable hours (or at any time in an emergency) to perform
repairs, to take any action authorized hereunder, or to show the Premises to
prospective purchasers or lenders, or, during the last six (6) months of the
Term, prospective tenants.
21.6 MISCELLANEOUS. If any clause or provision of this Lease is illegal,
invalid, or unenforceable under present or future laws, then the remainder of
this Lease shall not be affected thereby. This Lease may not be amended except
by instrument in writing signed by Landlord and Tenant. No provision of this
Lease shall be deemed to have been waived by Landlord unless such waiver is in
writing signed by Landlord. The terms and conditions contained in this Lease
shall inure to the benefit of and be binding upon the parties hereto, and upon
their respective successors in interest and legal representatives, except as
otherwise herein expressly provided. This Lease constitutes the entire agreement
between Landlord and Tenant regarding the subject matter hereof and supersedes
all oral statements and prior writings relating thereto. Tenant and the person
or persons signing on behalf of Tenant represent and warrant that Tenant has
full right and authority to enter into this Lease, and that all persons signing
this Lease on its behalf are authorized to do so. If Tenant is comprised of more
than one party, each such party shall be jointly and severally liable for
Tenant's obligations under this Lease. All exhibits and attachments attached
hereto are incorporated herein by this reference. This Lease shall be governed
by and construed in accordance with the laws of the State of California. In any
action which Landlord or Tenant brings to enforce its respective rights
hereunder, the unsuccessful party shall pay all costs incurred by the prevailing
party, including without limitation, reasonable attorneys' fees and court costs.
Tenant shall not record this Lease or any memorandum hereof. TO THE MAXIMUM
EXTENT PERMITTED BY LAW, LANDLORD AND TENANT EACH WAIVE RIGHT TO TRIAL BY JURY
IN ANY LITIGATION ARISING OUT OF OR WITH RESPECT TO THIS LEASE. Submission of
this Lease to
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Tenant does not constitute an option or offer to lease and this Lease is not
effective otherwise until execution and delivery by both Landlord and Tenant.
This Lease may be executed in any number of counterparts, each of which shall be
deemed an original. Time is of the essence as to the performance of each
covenant hereunder in which time of performance is a factor.
22. ADDENDA/ADDITIONAL PROVISIONS.
SIGNAGE. TENANT SHALL BE ENTITLED TO ONE BUILDING SIGN TO BE LOCATED IN
FRONT OF TENANT'S PREMISES APPROXIMATELY AS INDICATED IN BLUE ON THE
ATTACHED FLOOR PLAN (EXHIBIT B). SUCH SIGN WILL BE DESIGNED AND
CONSTRUCTED AT TENANT'S SOLE COST AND EXPENSE. ALL SIGNS SHALL BE SUBJECT
TO LANDLORD'S APPROVAL, WHICH SHALL NOT BE UNREASONABLY WITHHELD OR
DELAYED, AND APPROVAL OF ANY PUBLIC AUTHORITIES HAVING JURISDICTION.
TENANT SHALL BE RESPONSIBLE FOR ELECTRICAL ENERGY USED IN CONNECTION WITH
ITS SIGNS, REPAIRS AND MAINTENANCE NECESSARY TO MAINTAIN THE SIGNS IN
THEIR ORIGINAL CONDITION. ALL OF TENANT'S SIGNS SHALL AT ALL TIMES REMAIN
THE PROPERTY OF TENANT AND TENANT MUST REMOVE ITS SIGNS AT THE EXPIRATION
OR EARLIER TERMINATION OF THIS LEASE. TENANT SHALL REPAIR ANY DAMAGE
CAUSED IN THE REMOVAL OF ITS SIGN.
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EXHIBIT A
INDUSTRIAL LEASE
RULES AND REGULATIONS
1. Driveways, sidewalks, halls, passages, exits, entrances, elevators,
escalators and stairways shall not be obstructed by tenants or used by
tenants for any purpose other than for ingress to and egress from their
respective premises. The driveways, sidewalks, halls, passages, exits,
entrances, elevators and stairways are not for the use of the general
public and Landlord shall in all cases retain the right to control and
prevent access thereto by all persons whose presence, in the judgment of
Landlord, shall be prejudicial to the safety, character, reputation and
interests of the Building, the Project and its tenants, provided that
nothing herein contained shall be construed to prevent such access to
persons with whom any tenant normally deals in the ordinary course of such
tenant's business unless such persons are engaged in illegal activities. No
tenant, and no employees or invitees of any tenant, shall go upon the roof
of any Building, except as authorized by Landlord.
2. No sign, placard, banner, picture, name, advertisement or notice, visible
from the exterior of the Premises or the Building or the common areas of
the Building shall be inscribed, painted, affixed, installed or otherwise
displayed by Tenant either on its Premises or any part of the Building or
Project without the prior written consent of Landlord in Landlord's sole
and absolute discretion. Landlord shall have the right to remove any such
sign, placard, banner, picture, name, advertisement, or notice without
notice to and at the expense of Tenant, which were installed or displayed
in violation of this rule. If Landlord shall have given such consent to
Tenant at any time, whether before or after the execution of Tenant's
Lease, such consent shall in no way operate as a waiver or release of any
of the provisions hereof or of the Lease, and shall be deemed to relate
only to the particular sign, placard, banner, picture, name, advertisement
or notice so consented to by Landlord and shall not be construed as
dispensing with the necessity of obtaining the specific written consent of
Landlord with respect to any other such sign, placard, banner, picture,
name, advertisement or notice.
All approved signs or lettering on doors and walls shall be printed,
painted, affixed or inscribed at the expense of Tenant by a person or
vendor approved by Landlord and shall be removed by Tenant at the time of
vacancy at Tenant's expense.
3. The directory of the Building or Project will be provided exclusively for
the display of the name and location of tenants only and Landlord reserves
the right to charge for the use thereof and to exclude any other names
therefrom.
4. No curtains, draperies, blinds, shutters, shades, screens or other
coverings, awnings, hangings or decorations shall be attached to, hung or
placed in, or used in connection with, any window or door on the Premises
without the prior written consent of Landlord. In any event with the prior
written consent of Landlord, all such items shall be installed inboard of
Landlord's standard window covering and shall in no way be visible from the
exterior of the Building. All electrical ceiling fixtures hung in offices
or spaces along the perimeter of the Building must be fluorescent or of a
quality, type, design, and bulb color approved by Landlord. No articles
shall be placed or kept on the window xxxxx so as to be visible from the
exterior of the Building. No articles shall be placed against glass
partitions or doors which Landlord considers unsightly from outside
Tenant's Premises.
5. Each tenant shall be responsible for all persons for whom it allows to
enter the Building or the Project and shall be liable to Landlord for all
acts of such persons.
Landlord and its agents shall not be liable for damages for any error
concerning the admission to, or exclusion from, the Building or the Project
of any person.
During the continuance of any invasion, mob, riot, public excitement or
other circumstance rendering such action advisable in Landlord's opinion,
Landlord reserves the right (but shall not be obligated) to prevent access
to the Building and the Project during the continuance of that event by any
means it considers appropriate for the safety of tenants and protection of
the Building, property in the Building and the Project.
6. Tenant shall not alter any lock or access device or install a new or
additional lock or access device or bolt on any door of its Premises,
without the prior written consent of Landlord. If Landlord shall give its
consent, Tenant shall in each case furnish Landlord with a key for any such
lock. Tenant, upon the termination of its tenancy, shall deliver to
Landlord the keys for all doors which have been furnished to Tenant, and in
the event of loss of any keys so furnished, shall pay Landlord therefor.
7. The restrooms, toilets, urinals, wash bowls and other apparatus shall not
be used for any purpose other than that for which they were constructed and
no foreign substance of any kind whatsoever shall be thrown into them. The
expense of any breakage, stoppage, or damage resulting from violation of
this rule shall be borne by the tenant who, or whose employees or invitees,
shall have caused the breakage, stoppage, or damage.
8. Tenant shall not use or keep in or on the Premises, the Building or the
Project any kerosene, gasoline, or inflammable or combustible fluid or
material except in strict accordance with the terms of the Lease.
9. Tenant shall not use, keep or permit to be used or kept in its Premises any
foul or noxious gas or substance. Tenant shall not allow the Premises to be
occupied or used in a manner offensive or objectionable to Landlord or
other occupants of the Building by reason of noise, odors and/or vibrations
or interfere in any way with other tenants or those having business
therein, nor shall any animals or birds be brought or kept in or about the
Premises, the Building, or the Project.
10. Except with the prior written consent of Landlord, Tenant shall not sell,
or permit the sale, at retail, of newspapers, magazines, periodicals,
theater tickets or any other goods or merchandise in or on the Premises,
nor shall Tenant carry on, or permit or allow any employee or other person
to carry on, the business of stenography, typewriting or any similar
business in or from the Premises for the service or accommodation of
occupants of any other portion of the Building, or the business of a public
xxxxxx shop, beauty parlor, nor shall the Premises be used for any illegal,
improper, immoral or objectionable purpose, or any business or activity
other than that specifically provided for in such Tenant's Lease. Tenant
shall not accept hairstyling, barbering, shoeshine, nail, massage or
similar services in the Premises or common areas except as authorized by
Landlord.
11. If Tenant requires telegraphic, telephonic, telecommunications, data
processing, burglar alarm or similar services, it shall first obtain, and
comply with, Landlord's instructions in their installation. The cost of
purchasing, installation and maintenance of such services shall be borne
solely by Tenant.
12. Landlord will direct electricians as to where and how telephone, telegraph
and electrical wires are to be introduced or installed. No boring or
cutting for wires will be allowed without the prior written consent of
Landlord. The location of burglar alarms, telephones, call boxes and other
office equipment affixed to the Premises shall be subject to the prior
written approval of Landlord.
13. Tenant shall not install any radio or television antenna, satellite dish,
loudspeaker or any other device on the exterior walls or the roof of the
Building, without Landlord's consent. Tenant shall not interfere with radio
or television broadcasting or reception from or in the Building, the
Project or elsewhere.
14. Tenant shall not xxxx, or drive nails, screws or drill into the partitions,
woodwork or drywall or in any way deface the Premises or any part thereof.
Tenant shall not lay linoleum, tile, carpet or any other floor covering so
that the same shall be affixed to the floor of its Premises in any manner
except as approved in writing by Landlord. The expense of repairing any
damage resulting from a violation of this rule or the removal of any floor
covering shall be borne by the tenant by whom, or by whose contractors,
employees or invitees, the damage shall have been caused.
15. Tenant shall not place a load upon any floor of its Premises which exceeds
the load per square foot which such floor was designed to carry or which is
allowed by law.
Business machines and mechanical equipment belonging to Tenant which cause
noise or vibration that may be transmitted to the structure of the Building
or to any space therein to such a degree as to be objectionable to Landlord
or to any tenants in the Building shall be placed and maintained by Tenant,
at Tenant's
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expense, on vibration eliminators or other devices sufficient to eliminate
noise or vibration. The persons employed to move such equipment in or out
of the Building must be acceptable to Landlord.
16. Each tenant shall store all its trash and garbage within the interior of
the Premises or as otherwise directed by Landlord from time to time. Tenant
shall not place in the trash boxes or receptacles any personal trash or any
material that may not or cannot be disposed of in the ordinary and
customary manner of removing and disposing of trash and garbage in the
city, without violation of any law or ordinance governing such disposal.
17. Canvassing, soliciting, distribution of handbills or any other written
material and peddling in the Building and the Project are prohibited and
each tenant shall cooperate to prevent the same. No tenant shall make
room-to-room solicitation of business from other tenants in the Building or
the Project, without the written consent of Landlord.
18. Landlord shall have the right, exercisable without notice and without
liability to any tenant, to change the name and address of the Building and
the Project.
19. Landlord reserves the right to exclude or expel from the Project any person
who, in Landlord's judgment, is under the influence of alcohol or drugs or
who commits any act in violation of any of these Rules and Regulations.
20. Without the prior written consent of Landlord, Tenant shall not use the
name of the Building or the Project or any photograph or other likeness of
the Building or the Project in connection with, or in promoting or
advertising, Tenant's business except that Tenant may include the
Building's or Project's name in Tenant's address.
21. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental
agency.
22. Tenant assumes any and all responsibility for protecting its Premises from
theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed.
23. Landlord reserves the right to designate the use of the parking spaces on
the Project. Tenant or Tenant's guests shall park between designated
parking lines only, and shall not occupy two parking spaces with one car.
No trucks, truck tractors, trailers or fifth wheel are allowed to be parked
anywhere at any time within the Project other than in Tenant's own truck
dock well. Vehicles in violation of the above shall be subject to tow-away,
at vehicle owner's expense. Vehicles parked on the Project overnight
without prior written consent of the Landlord shall be deemed abandoned and
shall be subject to tow-away at vehicle owner's expense. No tenant of the
Building shall park in visitor or reserved parking areas or loading areas.
Any tenant found parking in such designated visitor or reserved parking
areas or loading areas or unauthorized areas shall be subject to tow-away
at vehicle owner's expense. The parking areas shall not be used to provide
car wash, oil changes, detailing, automotive repair or other services
unless otherwise approved or furnished by Landlord. Tenant will from time
to time, upon the request of Landlord, supply Landlord with a list of
license plate numbers of vehicles owned or operated by its employees or
agents.
24. No Tenant is allowed to unload, unpack, pack or in any way manipulate any
products, materials or goods in the common areas of the Project including
the parking and driveway areas of the Project. All products, goods and
materials must be manipulated, handled, kept, and stored within the
Tenant's Premises and not in any exterior areas, including, but not limited
to, exterior dock platforms, against the exterior of the Building, parking
areas and driveway areas of the Project. Tenant also agrees to keep the
exterior of the Premises clean and free of nails, wood, pallets, packing
materials, barrels and any other debris produced from their operation. All
products, materials and goods are to enter and exit the Premises by being
loaded or unloaded through dock high doors into trucks and or trailers,
over dock high loading platforms into trucks and or trailers or loaded or
unloaded into trucks and or trailers within the Premises through grade
level door access.
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25. Tenant shall be responsible for the observance of all of the foregoing
Rules and Regulations by Tenant's employees, agents, clients, customers,
invitees and guests.
26. These Rules and Regulations are in addition to, and shall not be construed
to in any way modify, alter or amend, in whole or in part, the terms,
covenants, agreements and conditions of any lease of any premises in the
Project.
27. Landlord may waive any one or more of these Rules and Regulations for the
benefit of any particular tenant or tenants, but no such waiver by Landlord
shall be construed as a waiver of such Rules and Regulations in favor of
any other tenant or tenants, nor prevent Landlord from thereafter enforcing
any such Rules and Regulations against any or all tenants of the Building.
Landlord reserves the right to make such other and reasonable rules and
regulations as in its judgment may from time to time be needed for safety and
security, for care and cleanliness of the Building and the Project and for the
preservation of good order therein. Tenant agrees to abide by all such Rules and
Regulations herein stated and any additional rules and regulations which are
adopted.
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[FLOOR PLAN DRAWING HERE]
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EXHIBIT C
LEASE IMPROVEMENT AGREEMENT
THIS LEASE IMPROVEMENT AGREEMENT ("IMPROVEMENT AGREEMENT") SETS FORTH
THE TERMS AND CONDITIONS RELATING TO CONSTRUCTION OF THE INITIAL TENANT
IMPROVEMENTS DESCRIBED IN THE PLANS REFERRED TO BELOW (THE "TENANT
IMPROVEMENTS") IN THE PREMISES. CAPITALIZED TERMS USED BUT NOT OTHERWISE DEFINED
HEREIN SHALL HAVE THE MEANINGS SET FORTH IN THE LEASE (THE "LEASE") TO WHICH
THIS IMPROVEMENT AGREEMENT IS ATTACHED AND FORMS A PART.
1. PLANS AND SPECIFICATIONS.
1.1. LANDLORD SHALL CONSTRUCT THE TENANT IMPROVEMENTS IN THE PREMISES
PURSUANT TO THE PRELIMINARY DRAWINGS BY HPC ARCHITECTURE DATED 8/17/99
(COLLECTIVELY, THE "PLANS"). FINAL APPROVED DRAWINGS SHALL BE ATTACHED AS
EXHIBIT C-1. TENANT SHALL MAKE NO CHANGES OR MODIFICATIONS TO THE PLANS OR
SUBMIT ANY CHANGE ORDERS WITHOUT THE PRIOR WRITTEN APPROVAL OF LANDLORD.
1.2 LANDLORD SHALL ASSIGN TO TENANT ALL WARRANTIES AND GUARANTEES BY THE
CONTRACTOR WHO CONSTRUCTS THE TENANT IMPROVEMENTS RELATING TO THE TENANT
IMPROVEMENTS, AND TENANT HEREBY WAIVES ALL CLAIMS AGAINST LANDLORD RELATING TO,
OR ARISING OUT OF THE CONSTRUCTION OF, THE TENANT IMPROVEMENTS.
2. SPECIFICATIONS FOR STANDARD TENANT IMPROVEMENTS.
2.1. SPECIFICATIONS AND QUANTITIES OF STANDARD BUILDING COMPONENTS WHICH
WILL COMPRISE AND BE USED IN THE CONSTRUCTION OF THE TENANT IMPROVEMENTS
("STANDARDS") ARE SET FORTH IN SCHEDULE 1 TO THIS EXHIBIT C. AS USED HEREIN,
"STANDARDS" OR "BUILDING STANDARDS" SHALL MEAN THE STANDARDS FOR A PARTICULAR
ITEM SELECTED FROM TIME TO TIME BY LANDLORD FOR THE BUILDING, OR SUCH OTHER
STANDARDS OF EQUAL OR BETTER QUALITY AS MAY BE MUTUALLY AGREED BETWEEN LANDLORD
AND TENANT IN WRITING.
2.2. NO DEVIATIONS FROM THE STANDARDS ARE PERMITTED.
3. CONSTRUCTION OF TENANT IMPROVEMENTS.
3.1. PROMPTLY UPON THE EXECUTION OF THIS IMPROVEMENT AGREEMENT. LANDLORD
SHALL SECURE A BUILDING PERMIT AND COMMENCE CONSTRUCTION OF THE TENANT
IMPROVEMENTS PROVIDED THAT TENANT SHALL COOPERATE WITH LANDLORD IN EXECUTING
PERMIT APPLICATIONS AND PERFORMING OTHER ACTIONS REASONABLY NECESSARY TO ENABLE
LANDLORD TO OBTAIN ANY REQUIRED PERMITS OR CERTIFICATES OF OCCUPANCY. LANDLORD
SHALL NOT BE LIABLE FOR ANY DIRECT OR INDIRECT DAMAGES SUFFERED BY TENANT AS A
RESULT OF DELAYS IN CONSTRUCTION BEYOND LANDLORD'S REASONABLE CONTROL,
INCLUDING, BUT NOT LIMITED TO, DELAYS DUE TO STRIKES OR UNAVAILABILITY OF
MATERIALS OR LABOR, OR DELAYS CAUSED BY TENANT (INCLUDING DELAYS BY THE
CONTRACTOR OR ANYONE ELSE PERFORMING SERVICES ON BEHALF OF LANDLORD OR TENANT).
3.2. IF ANY WORK IS TO BE PERFORMED ON THE PREMISES BY TENANT OR TENANT'S
CONTRACTOR OR AGENTS:
(a) SUCH WORK SHALL PROCEED UPON LANDLORD'S WRITTEN APPROVAL OF
TENANT'S CONTRACTOR, PUBLIC LIABILITY AND PROPERTY DAMAGE INSURANCE CARRIED BY
TENANT'S CONTRACTOR, AND DETAILED PLANS AND SPECIFICATIONS FOR SUCH WORK SHALL
BE AT TENANT'S SOLE COST AND EXPENSE, AND SHALL FURTHER BE SUBJECT TO THE
PROVISIONS OF PARAGRAPHS 7.1 AND 7.3 OF THE LEASE.
(b) ALL WORK SHALL BE DONE IN CONFORMITY WITH A VALID BUILDING PERMIT
WHEN REQUIRED, A COPY OF WHICH SHALL BE FURNISHED TO LANDLORD BEFORE SUCH WORK
IS COMMENCED, AND IN ANY CASE, ALL SUCH WORK SHALL BE PERFORMED IN ACCORDANCE
WITH ALL APPLICABLE REGULATIONS. NOTWITHSTANDING ANY FAILURE BY LANDLORD TO
OBJECT TO ANY SUCH WORK. LANDLORD SHALL HAVE NO RESPONSIBILITY FOR TENANT'S
FAILURE TO COMPLY WITH ALL APPLICABLE REGULATIONS.
(c) IF REQUIRED BY LANDLORD OR ANY LENDER OF LANDLORD. ALL WORK BY
TENANT OR TENANT'S CONTRACTOR OR AGENTS SHALL BE DONE WITH UNION LABOR IN
ACCORDANCE WITH ALL UNION LABOR AGREEMENTS APPLICABLE TO THE TRADES BEING
EMPLOYED.
(d) ALL WORK BY TENANT OR TENANT'S CONTRACTOR OR AGENTS SHALL BE
SCHEDULED THROUGH LANDLORD.
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(e) TENANT OR TENANT'S CONTRACTOR OR AGENTS SHALL ARRANGE FOR
NECESSARY UTILITY, HOISTING AND ELEVATOR SERVICE WITH LANDLORD'S CONTRACTOR AND
SHALL PAY SUCH REASONABLE CHARGES FOR SUCH SERVICES AS MAY BE CHARGED BY
TENANT'S OR LANDLORD'S CONTRACTOR.
(f) TENANT'S ENTRY TO THE PREMISES FOR ANY PURPOSE, INCLUDING, WITHOUT
LIMITATION. INSPECTION OR PERFORMANCE OF TENANT CONSTRUCTION BY TENANT'S AGENTS,
PRIOR TO THE DATE TENANT'S OBLIGATION TO PAY RENT COMMENCES SHALL BE SUBJECT TO
ALL THE TERMS AND CONDITIONS OF THE LEASE EXCEPT THE PAYMENT OF RENT. TENANT'S
ENTRY SHALL MEAN ENTRY BY TENANT. ITS OFFICERS, CONTRACTORS, LICENSEES, AGENTS,
SERVANTS, EMPLOYEES, GUESTS, INVITEES, OR VISITORS.
(g) TENANT SHALL PROMPTLY REIMBURSE LANDLORD UPON DEMAND FOR ANY
REASONABLE EXPENSE ACTUALLY INCURRED BY THE LANDLORD BY REASON OF FAULTY WORK
DONE BY TENANT OR ITS CONTRACTORS OR BY REASON OF ANY DELAYS CAUSED BY SUCH
WORK, OR BY REASON OF INADEQUATE CLEAN-UP.
4. COMPLETION AND RENTAL COMMENCEMENT DATE.
4.1 TENANT'S OBLIGATION TO PAY RENT UNDER THE LEASE SHALL COMMENCE ON THE
APPLICABLE DATE DESCRIBED IN PARAGRAPH 3 OF THE LEASE. HOWEVER:
(a) IF TENANT DELAYS IN APPROVING ANY MATTER REQUIRING TENANT'S
APPROVAL WITHIN THE TIME LIMITS SPECIFIED HEREIN; OR
(b) IF THE CONSTRUCTION PERIOD IS EXTENDED BECAUSE TENANT REQUESTS ANY
CHANGES IN CONSTRUCTION OR MODIFIES THE PLANS OR IF THE SAME DO NOT COMPLY WITH
THE APPLICABLE REGULATIONS; OR
(c) IF LANDLORD IS OTHERWISE DELAYED IN THE CONSTRUCTION OF THE TENANT
IMPROVEMENTS FOR ANY ACT OR OMISSION OF OR BREACH BY TENANT OR ANYONE PERFORMING
SERVICES ON BEHALF OF TENANT OR ON ACCOUNT OF ANY WORK PERFORMED ON THE PREMISES
BY TENANT OR TENANT'S CONTRACTORS OR AGENTS, THEN THE DATE DESCRIBED IN
PARAGRAPH 2 OF THE LEASE SHALL BE DEEMED TO BE ACCELERATED BY THE TOTAL NUMBER
OF DAYS OF TENANT DELAYS DESCRIBED IN (A) THROUGH (C) ABOVE (EACH, A "TENANT
DELAY"), CALCULATED IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH 4.2 BELOW.
4.2. IF THE TERM OF THE LEASE HAS NOT ALREADY COMMENCED PURSUANT TO THE
PROVISIONS OF PARAGRAPH 2 OF THE LEASE AND SUBSTANTIAL COMPLETION OF THE TENANT
IMPROVEMENTS HAS BEEN DELAYED ON ACCOUNT OF ANY TENANT DELAYS, THEN UPON ACTUAL
SUBSTANTIAL COMPLETION OF THE TENANT IMPROVEMENTS (AS DEFINED IN PARAGRAPH 2 OF
THE LEASE), LANDLORD SHALL NOTIFY TENANT IN WRITING OF THE DATE SUBSTANTIAL
COMPLETION OF THE TENANT IMPROVEMENTS WOULD HAVE OCCURRED BUT FOR SUCH TENANT
DELAYS, AND SUCH DATE SHALL THEREAFTER BE DEEMED TO BE THE TERM COMMENCEMENT
DATE FOR ALL PURPOSES UNDER THE LEASE. TENANT SHALL PAY TO LANDLORD. WITHIN
THREE (3) BUSINESS DAYS AFTER RECEIPT OF SUCH WRITTEN NOTICE (WHICH NOTICE SHALL
INCLUDE A SUMMARY OF TENANT DELAYS). THE PER DIEM BASE RENT TIMES THE NUMBER OF
DAYS BETWEEN THE DATE THE TERM COMMENCEMENT DATE WOULD HAVE OTHERWISE OCCURRED
BUT FOR THE TENANT DELAYS (AS DETERMINED BY LANDLORD'S CONTRACTOR), AND THE DATE
OF ACTUAL SUBSTANTIAL COMPLETION OF THE TENANT IMPROVEMENTS.
4.3. PROMPTLY AFTER SUBSTANTIAL COMPLETION OF THE TENANT IMPROVEMENTS.
LANDLORD SHALL GIVE NOTICE TO TENANT AND TENANT SHALL CONDUCT AN INSPECTION OF
THE PREMISES WITH A REPRESENTATIVE OF LANDLORD AND DEVELOP WITH SUCH
REPRESENTATIVE OF LANDLORD A PUNCHLIST OF ITEMS, IF ANY, OF THE TENANT
IMPROVEMENTS THAT ARE NOT COMPLETE OR THAT REQUIRE CORRECTION. UPON RECEIPT OF
SUCH PUNCHLIST, LANDLORD SHALL PROCEED DILIGENTLY TO REMEDY SUCH ITEMS AT
LANDLORD'S COST AND EXPENSE PROVIDED SUCH ITEMS ARE PART OF THE TENANT
IMPROVEMENTS TO BE CONSTRUCTED BY LANDLORD HEREUNDER AND ARE OTHERWISE
CONSISTENT WITH LANDLORD'S OBLIGATIONS UNDER THIS IMPROVEMENT AGREEMENT (WITH
ANY DISPUTE BETWEEN LANDLORD AND TENANT PERTAINING THERETO TO BE RESOLVED BY
LANDLORD'S ARCHITECT OR GENERAL CONTRACTOR). SUBSTANTIAL COMPLETION SHALL OCCUR
NOTWITHSTANDING DELIVERY OF ANY SUCH PUNCHLIST.
4.4. A DEFAULT UNDER THIS IMPROVEMENT AGREEMENT SHALL CONSTITUTE A DEFAULT
UNDER THE LEASE, AND THE PARTIES SHALL BE ENTITLED TO ALL RIGHTS AND REMEDIES
UNDER THE LEASE IN THE EVENT OF A DEFAULT HEREUNDER BY THE OTHER PARTY
(NOTWITHSTANDING THAT THE TERM THEREOF HAS NOT COMMENCED).
4.5. WITHOUT LIMITING THE "AS-IS" PROVISIONS OF THE LEASE, EXCEPT FOR THE
TENANT IMPROVEMENTS TO BE CONSTRUCTED BY LANDLORD PURSUANT TO THIS IMPROVEMENT
AGREEMENT, TENANT ACCEPTS THE PREMISES IN ITS "AS-IS" CONDITION AND ACKNOWLEDGES
THAT IT HAS HAD AN OPPORTUNITY TO INSPECT THE PREMISES PRIOR TO SIGNING THE
LEASE.
-7-
EXHIBIT C-I
FINAL CONSTRUCTION DRAWINGS SHALL BE ATTACHED AS EXHIBIT C-1.
EXHIBIT D
TENANT'S INSURANCE
Tenant shall, at Tenant's sole cost and expense, procure and keep in effect from
the date of this Lease and at all times until the end of the Term, the following
insurance coverage:
1. PROPERTY INSURANCE. Insurance on all personal property and fixtures of
Tenant and all improvements made by or for Tenant to the Premises on an
"All Risk" or "Special Form" basis, for the full replacement value of such
property. Such insurance shall be endorsed to name Landlord, any Holder of
a Security Instrument and any other party specified by Landlord as a loss
payee.
2. LIABILITY INSURANCE. Commercial General Liability insurance written on an
ISO CG 00 0l 10 93 or equivalent form, on an occurrence basis, with a per
occurrence limit of at least $2,000,000, and a minimum general aggregate
limit of at least $3,000,000, covering bodily injury and property damage
liability occurring in or about the Premises or arising out of the use and
occupancy of the Premises or the Project by Tenant or any Tenant Party.
Such insurance shall include contractual liability coverage insuring
Tenant's indemnity obligations under this Lease, and shall be endorsed to
name Landlord, any Holder of a Security Instrument and any other party
specified by Landlord as an additional insured with regard to liability
arising out of the ownership, maintenance or use of the Premises.
3. WORKER'S COMPENSATION AND EMPLOYER'S LIABILITY INSURANCE. (a) Worker's
Compensation Insurance as required by any Regulation, and (b) Employer's
Liability Insurance in amounts not less than $1,000,000 each accident for
bodily injury by accident and for bodily injury by disease, and for each
employee for bodily injury by disease.
4. COMMERCIAL AUTO LIABILITY INSURANCE. Commercial auto liability insurance
with a combined limit of not less than One Million Dollars ($1,000,000) for
bodily injury and property damage for each accident. Such insurance shall
cover liability relating to any auto (including owned, hired and non-owned
autos).
5. ALTERATIONS REQUIREMENTS. In the event Tenant shall desire to perform any
Alterations, Tenant shall deliver to Landlord, prior to commencing such
Alterations (i) evidence satisfactory to Landlord that Tenant carries
"Builder's Risk" insurance covering construction of such Alterations in an
amount and form approved by Landlord, (ii) such other insurance as Landlord
shall nondiscriminatorily require, and (iii) a lien and completion bond or
other security in form and amount satisfactory to Landlord.
6. GENERAL INSURANCE REQUIREMENTS. All coverages described in this EXHIBIT D
shall be endorsed to (i) provide Landlord with thirty (30) days' notice of
cancellation or change in terms; (ii) waive all rights of subrogation by
the insurance carrier against Landlord; and (iii) be primary and
non-contributing with Landlord's insurance. If at any time during the Term
the amount or coverage of insurance which Tenant is required to carry under
this EXHIBIT D is, in Landlord's reasonable judgment, materially less than
the amount or type of insurance coverage typically carried by owners or
tenants of properties located in the general area in which the Premises are
located which are similar to and operated for similar purposes as the
Premises or if Tenant's use of the Premises should change with or without
Landlord's consent, Landlord shall have the right to require Tenant to
increase the amount or change the types of insurance coverage required
under this EXHIBIT D. All insurance policies required to be carried by
Tenant under this Lease shall be written by companies rated AVII or better
in "Best's Insurance Guide" and authorized to do business in the State of
California. Deductible amounts under all insurance policies required to be
carried by Tenant under this Lease shall not exceed $10,000 per occurrence.
Tenant shall deliver to Landlord on or before the Term Commencement Date,
and thereafter at least thirty (30) days before the expiration dates of the
expired policies, certified copies of Tenant's insurance policies, or a
certificate evidencing the same issued by the insurer thereunder, and, if
Tenant shall fail to procure such insurance, or to deliver such policies or
certificates, Landlord may, at Landlord's option and in addition to
Landlord's other remedies in the event of a default by Tenant under the
Lease, procure the same for the account of Tenant, and the cost thereof
(with interest thereon at the Default Rate) shall be paid to Landlord as
Additional Rent.
EXHIBIT E
HAZARDOUS MATERIALS QUESTIONNAIRE
This questionnaire is designed to solicit information regarding Tenant's
proposed use, generation, treatment, storage, transfer or disposal of hazardous
or toxic materials, substances or wastes. If this Questionnaire is attached to
or provided in connection with a lease, the reference herein to any such items
shall include all items defined as "Hazardous Materials," "Hazardous
Substances," "Hazardous Wastes," "Toxic Materials," "Toxic Substances, "Toxic
Wastes," or such similar definitions contained in the lease. Please complete the
questionnaire and return it to Landlord for evaluation. If your use of materials
or substances, or generation of wastes is considered to be significant, further
information may be requested regarding your plans for hazardous and toxic
materials management. Your cooperation in this matter is appreciated. If you
have any questions, do not hesitate to call us for assistance.
1. PROPOSED TENANT
Name (Corporation, Individual, Corporate or Individual DBA, or
Public Agency): SITEBRIGADE, INC.
------------------------------------------------------------
--------------------------------------------------------------------------------
Standard Industrial Classification
Code (SIC):
----------------------------------------------------------------
Street Address: 0000 XXXXX XXXX.
------------------------------------------------------------
City, Slate, Zip Code: XXXXX XXXXX, XX 00000
-----------------------------------------------------
Contact Person & Title: XXXX XXXX, CEO
----------------------------------------------------
Telephone Number: (000)000-0000 Facsimile Number: (000)000-0000
--------------------- -------------------
2. LOCATION AND ADDRESS OF PROPOSED LEASE
Street Address: 0000 XXXXX XXXX.
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City, State, Zip Code: XXXXX XXXXX, XX 00000
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Bordering Streets: XXXXXX AVENUE
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Streets to which Premises has Access: XXXXX BLVD.
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3. DESCRIPTION OF PREMISES
Floor Area: 11,200 S.F.
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Number of Parking Spaces: 4/1000
--------------------------------------------------
Date of Original Construction: 1980
---------------------------------------------
Past Uses of Premises: UNKNOWN
-----------------------------------------------------
Dates and Descriptions of Significant Additions or Improvements: NONE KNOWN
-----------
Proposed Additions, Alterations or Improvements, if any: NONE KNOWN
-------------------
4. DESCRIPTION OF PROPOSED PREMISES USE
Describe proposed use and operation of Premises including (i) services to
be performed, (ii) nature and types of manufacturing or assembly processes,
if any, and (iii) the materials or products to be stored at the Premises.
DESIGN AND MANAGEMENT OF LARGE COMPLEXT INTERNET SITES FOR E-BUSINESS
---------------------------------------------------------------------------
CORPORATIONS ON AN OUTSOURCED BASIS.
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---------------------------------------------------------------------------
Will the operation of your business at the Premises involve the use,
generation, treatment, storage, transfer or disposal of hazardous wastes or
materials? Do they now? Yes No X If the answer is
--- ---
"yes," or if your SIC code number is between 2000 to 4000, please complete
Section V.
5. PERMIT DISCLOSURE
Does or will the operation of any facet of your business at the Premises
require any permits, licenses or plan approvals from any of the following
agencies?
U.S. Environmental Protection Agency Yes No X
---- ----
City or County Sanitation District Yes No X
---- ----
State Department of Health Services Yes No X
---- ----
U.S. Nuclear Regulatory Commission Yes No X
---- ----
Air Quality Management District Yes No X
---- ----
Bureau of Alcohol, Firearms and Tobacco Yes No X
---- ----
City or County Fire Department Yes No X
---- ----
Regional Water Quality Control Board Yes No X
---- ----
Other Governmental Agencies (if yes, Yes No X
---- ----
identify: ______________________)
If the answer to any of the above is "yes," please indicate permit or
license numbers, issuing agency and expiration date or renewal date, if
applicable.
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If your answer to any of the above is "yes," please complete Sections VI
and VII.
6. HAZARDOUS MATERIALS DISCLOSURE
Will any hazardous or toxic materials or substances be stored on the
Premises? Yes No X . If the answer is "yes," please describe the materials
---- ---
or substances to be stored, the quantities thereof and the proposed
-2-
method of storage of the same (i.e., drums, aboveground or underground storage
tanks, cylinders, other), and whether the material is a Solid (S), Liquid (L) or
Gas (G):
Material/ Quantity to be Amount to be Maximum Period of
Substance Stored on Storage Method Stored Premises Storage
Premises on a Monthly Basis
------------- ------------------ ---------------- ------------------- ------------------
------------- ------------------ ---------------- ------------------- ------------------
------------- ------------------ ---------------- ------------------- ------------------
------------- ------------------ ---------------- ------------------- ------------------
Attach additional sheets if necessary.
Is any modification of the Premises improvements required or planned to
mitigate the release of toxic or hazardous materials substance or wastes
into the environment? Yes No X If the answer is "yes," please
---- ---
describe the proposed Premises modifications:
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
7. HAZARDOUS WASTE DISCLOSURE
Will any hazardous waste, including recyclable waste, be generated by the
operation of your business at the Premises? Yes No X
--- ---
If the answer is "yes," please list the hazardous waste which is expected
to be generated (or potentially will be generated) at the Premises, its
hazard class and volume/frequency of generation on a monthly basis.
Maximum Period of
Waste Name Hazard Class Volume/Month Premises Storage
------------------- ------------- --------------- --------------------
------------------- ------------- --------------- --------------------
------------------- ------------- --------------- --------------------
Attach additional sheets if necessary.
If the answer is "yes," please also indicate if any such wastes are to be
stored within the Premises and the proposed method of storage (i.e., drums,
aboveground or underground storage tanks, cylinders, other).
Waste Name Storage Method
--------------------- --------------
--------------------- --------------
Attach additional sheets if necessary.
-3-
If the answer is "yes," please also describe the method(s) of disposal for
each waste. Indicate where disposal will take place including the methods,
equipment and companies to be used to transport the waste:
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
Is any treatment or processing of hazardous wastes to be conducted at the
Premises? Yes No X If the answer is "yes," please describe proposed
--- ----
treatment/processing methods.
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---------------------------------------------------------------------------
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Which agencies arc responsible for monitoring and evaluating compliance
with respect to the storage and disposal of hazardous materials or wastes
at or from the Premises? (Please list all agencies):
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
Have there been any agency enforcement actions regarding Tenant (or any
affiliate thereof), or any existing Tenant's (or any affiliate's)
facilities, or any past, pending or outstanding administrative orders or
consent decrees with respect to Tenant or any affiliate thereof? Yes
-----
No X If the answer is "yes," have there been any continuing compliance
---
obligations imposed on Tenant or its affiliates as a result of the decrees
or orders? Yes No If the answer is "yes," please describe:
--- ---
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
Has Tenant or any of its affiliates been the recipient of requests for
information, notice and demand letters, cleanup and abatement orders, or
cease and desist orders or other administrative inquiries? Yes
----
No X If the answer is "yes," please describe:
---
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---------------------------------------------------------------------------
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-4-
Are there any pending citizen lawsuits, or have any notices of violations
been provided to Tenant or its affiliates or with respect to any existing
facilities pursuant to the citizens suit provisions of any statute? Yes
----
No X If the answer is "yes," please describe:
---
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---------------------------------------------------------------------------
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Have there been any previous lawsuits against the company regarding
environmental concerns? Yes No X If the answer is
---- ----
"yes," please describe how these lawsuits were resolved:
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
Has an environmental audit ever been conducted at any of your company's
existing facilities? Yes No X If the answer is "yes,"
--- ---
please describe:
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
Does your company carry environmental impairment insurance? Yes
----
No X If the answer is "yes," what is the name of the carrier and
----
what are the effective periods and monetary limits of such coverage?
---------------------------------------------------------------------------
---------------------------------------------------------------------------
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8. EQUIPMENT LOCATED OR TO BE LOCATED AT THE PREMISES
Is (or will there be) any electrical transformer or other equipment
containing polychlorinated biphenyls located at the Premises? Yes
----
No X If the answer is "yes," please specify the size, number and
----
location (or proposed location):
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
Is (or will there be) any tank for storage of a petroleum product located
at the Premises? Yes No X If the answer is "yes,"
--- ---
please specify capacity and contents of tank; permits, licenses and/or
approvals received or to be received therefor and any spill prevention
control or conformance plan to be taken in connection therewith:
-5-
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
9. ONGOING ACTIVITIES (APPLICABLE TO TENANTS IN POSSESSION)
Has any hazardous material, substance or waste spilled, leaked, discharged,
leached, escaped or otherwise been released into the environment at the
Premises? Yes No X If the answer is "yes," please describe
--- ---
including (i) the date and duration of each such release, (ii) the
material, substance or waste released, (iii) the extent of the spread of
such release into or onto the air, soil and/or water, (iv) any action to
clean up the release, (v) any reports or notifications made of filed with
any federal, state, or local agency, or any quasi-governmental agency
(please provide copies of such reports or notifications) and (vi) describe
any legal, administrative or other action taken by any of the foregoing
agencies or by any other person as a result of the release:
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
This Hazardous Materials Questionnaire is certified as being true and accurate
and has been completed by the party whose signature appears below on behalf of
Tenant as of the date set forth below.
DATED: 9/16/99
-----------------------
Signature /S/ XXXXXX XXXX
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Print Name XXXXXX XXXX
----------------------------------------
Title CEO
------------------------------------------
-6-
