AGREEMENT OF LEASE
THIS AGREEMENT OF LEASE (this "Lease"), made this 28th day of April,
1997, by and between TELEDYNE INDUSTRIES, INC., a California corporation
("Landlord"), and CLONTECH LABORATORIES, INC., a California corporation
("Tenant").
WITNESSETH
WHEREAS, Landlord desires to lease to Tenant and Tenant desires to lease
from Landlord the Premises (as defined below), under the terms and conditions
hereof; and
NOW THEREFORE, for good and valuable consideration, the parties agree as
follows:
1. PREMISES; POSSESSION; TERM.
(a) Landlord does hereby demise and lease to Tenant, and Tenant
does hereby hire and lease from Landlord, approximately 42,565 square feet of
the building consisting of approximately 113,000 square feet (the "Building"),
located at 1290 and 0000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx, more
fully described in Exhibit A attached hereto and made a part hereof, together
with a non-exclusive right to the land underlying the Building as shown in
Exhibit A (the "Land"), drives and sidewalks, and access to and egress from the
Premises, all in their present, "as is" condition (collectively, the
"Premises"), subject, however, to the rights of Landlord and other tenants of
the Building. A plot plan indicating available Tenant parking is set forth in
Exhibit A-1.
(b) The term of this Lease (the "Term" or "Lease Term") shall
commence on May 1, 1997 (the "Commencement Date") and shall expire on September
30, 2007, subject to the provisions of Paragraph 35 hereof.
(c) Notwithstanding anything to the contrary contained in this
Lease or the foregoing, if Tenant has, despite its diligent efforts, not been
able to secure all permits, approvals, licenses and authorizations necessary for
the operation by Tenant of its business at the Premises (collectively,
"Permits"), including, without limitation, any approvals relating to alterations
or improvements Tenant intends to make to the Premises and any building and
demolition permits necessary for the construction of the Tenant Improvements, or
if any of the foregoing are subject to unreasonably burdensome conditions, on or
prior to June 1, 1997 (the "Termination Cutoff Date"), Tenant shall have the
right to terminate this Lease by providing written notice to Landlord of its
intention to terminate. Such termination notice shall be effective upon
delivery thereof to Landlord. Upon such termination, (i) Landlord shall be
entitled to retain from the security deposit provided by Tenant hereunder the
sum of $27,667 ("Termination Fee"), and (ii) Tenant shall restore the Premises
to its original condition as of the Commencement Date and Tenant shall otherwise
be responsible under this Lease for the acts and omissions of Tenant and its
agents and contractors while Tenant was in possession of the Premises. However,
except for the Termination Fee, Tenant shall not be liable to Landlord for
damages arising solely on account of the termination of this Lease under this
Paragraph 1(c). From the Commencement Date through the Termination Cutoff Date,
Landlord shall have the right to solicit back-up third party offers from
prospective tenants to lease the Premises. If Landlord wishes to accept such an
1.
offer, it shall provide Tenant with ten days notice within which to accept or
reject the lease of the Premises on substantially the same terms as set forth in
such third party offer. If Tenant does not agree in writing to lease the
Premises on such terms within such ten day period, then Landlord shall have the
right (x) to enter into a lease with such third party on substantially such
terms, and (y) to terminate this Lease, whereupon Landlord shall promptly return
to Tenant's security deposit paid hereunder. With respect to any such
termination by Landlord, clause (ii) of this paragraph shall apply.
2. NET LEASE; RENT ABSOLUTE.
(a) This Lease shall be deemed and construed to be a "net
Lease" and it is intended that the rent provided for in Paragraph 3 shall be an
absolutely net return to the Landlord throughout the Term of this Lease, free of
any expense, charge or other deduction whatsoever, with respect to the Premises
and/or the ownership, leasing, operation, management, maintenance, repair,
rebuilding, use or occupation thereof, or of any portion thereof, or with
respect to any interest of the Landlord therein, except only as otherwise
expressly provided herein.
(b) The obligations of Tenant to pay Basic Rent and Additional
Rent (each hereinafter defined) and to perform and observe Tenant's other
covenants contained herein shall be absolute and unconditional, and without
deduction or right of offset by Tenant.
3. BASIC RENT. Upon execution of this Lease, Tenant shall pay to
Landlord, as basic rent for the Premises for the Term of this Lease, the
following ("Basic Rent"):
(a) From November 1, 1997 through the twelfth month thereafter
("Year 1"), the Basic Rent shall be $27,667.25 per month, based on a rental rate
of $.65 per square foot. The first month's (November, 1997) Basic Rent shall be
payable in advance upon execution and delivery of this Lease.
(b) For each year following Year 1, the Basic Rent, payable
monthly, shall be equal to the greater of (i) the Basic Rent payable for the
previous year, or (ii) the Basic Rent payable in the previous year plus the CPI
Adjustment.
(c) The CPI Adjustment shall be determined as follows:
Using the Consumer Price Index for all Urban Consumers
(1982 - 84 = 100), City Average, for the San Francisco-Bay
Area Region, All Items, published by the Bureau of Labor
Statistics of the United States Department of labor (the
"Index"):
(x) for the first month of the previous year, with
respect to the rental calculation for the current
year, as the denominator, and the Index for
(y) the last month of the previous year, with respect to
the rental calculation for the current year, as the
numerator
2.
(or, if the Index is not published for such respective month, then the Index
published for the month closest, but prior to, the respective month called for
in the above formula), multiply the resulting fraction times the monthly rent
for the last month of the lease year immediately preceding the year for which
the rental calculation is to be made. The resulting number minus the monthly
rent for the last month of the lease year immediately preceding the year for
which the rental calculation is to be made times 12 shall be the annual increase
that would result from the increase in the Index (the "CPI Adjustment"). For
example, if the index for the first month of Year 1 is 40 and for the last month
of Year 1 is 43, the resulting fraction, 43/40 = 1.075, times the monthly rent
for the last month of Year 1 ($27,667.25), less the monthly rent for the last
month of the lease year immediately preceding the year for which the rental
calculation is to be made, namely $27,667.25, equals $2,075.04, the CPI
Adjustment to monthly Basic Rent. The monthly Basic Rent for the second year,
therefore, would be the Basic Rent for Year 1 ($27,667.25) plus the CPI
Adjustment ($2,075.04) or $29,742.29. The parties agree that in the event that
the Index is no longer in effect at the time of a year, the parties shall, in
good faith, determine the rental for the next successive year based upon a
comparable index.
The Basic Rent shall be payable monthly, commencing on November 1,
1997("Rent Commencement Date") (with the Basic Rent for the first month
following the Rent Commencement Date being payable upon execution of this
Lease), and thereafter on the first day of each subsequent month during the Term
thereafter (with any Basic Rent for the partial calendar month, if any, existing
at the expiration of thirty days following the Rent Commencement Date, payable
on or before such thirtieth day). The Rent Commencement Date shall be extended
up to thirty days if Tenant's conditional certificate of occupancy is not
obtained by November 1, 1997, not due to delays caused by Tenant. Rental
payments hereunder shall be made by Tenant to Landlord each by a single check or
draft payable to the order of Landlord and delivered to Landlord either
personally or by mail c/o Landlord's address set forth in Paragraph 23, or such
other address as Landlord may provide to Tenant. Unless otherwise provided
herein, any statement of square footage of the Building set forth in this Lease,
or that may have been used in calculating rental, is an approximation which
Landlord and Tenant agree is reasonable and the rental based thereon is not
subject to revision whether or not the actual square footage is more or less.
4. ADDITIONAL RENT.
(a) Tenant shall make additional payments to Landlord
("Additional Rent", and together with Basic Rent, "Rent") as payment for or
reimbursement or prepayment of any and all costs, expenses and liabilities (i)
incurred or paid by Landlord in satisfaction of any obligations of Tenant
hereunder not performed by Tenant in accordance with the provisions hereof, (ii)
incurred in the defense of any action or proceeding with respect to the Premises
or this Lease with respect to which Tenant is liable to Landlord under this
Lease, or in enforcing this Lease, including without limitation those
liabilities described in Paragraph 19 hereof, and (iii) all other charges
required to be paid by Tenant pursuant to the terms of this Lease, including,
without limitation, the charges set forth in Paragraphs 5, 8, 10 and 11. Upon
the payment, prepayment, or incurrence of any such cost, expense, or liability
described in this Paragraph by Landlord, Landlord's notice of Additional Rent in
respect thereof shall be accompanied by invoices or other appropriate
documentation concerning the nature, amount and incurrence of such cost, expense
or liability. Subject to Subparagraph 4(b) if the Additional Rent payable
3.
under this Paragraph is not paid within ten (10) days of such demand, such
Additional Rent shall bear interest from the date such payment was due at the
Default Interest Rate (hereinafter defined) until the amount due shall have been
fully paid.
(b) Notwithstanding anything to the contrary herein contained,
the Landlord may estimate the Additional Rent or any category of Additional Rent
annually in advance by giving written notice thereof to Tenant at least thirty
(30) days prior to the beginning of each calendar year. Tenant shall pay to
Landlord each month, at the same time the Basic Rent is due, an amount equal to
1/12 of the estimated Additional Rent. If any item comprising Additional Rent
for which Tenant is paying monthly estimates in advance as herein provided,
increases during a calendar year, Landlord may increase the estimated Additional
Rent during such year by giving Tenant written notice to that effect, and
thereafter Tenant shall pay to Landlord in each of the remaining months of such
year an amount equal to the amount of such increase in the estimated Additional
Rent divided by the number of months remaining in such year.
(c) If Landlord requires the payment of estimated Additional
Rent hereunder, within ninety (90) days after each calendar year, Landlord shall
prepare and deliver to Tenant a statement showing the actual Additional Rent.
Within thirty (30) days after receipt of the aforementioned statement, Tenant
shall pay to Landlord, or Landlord shall credit against the next Basic Rent
payment or payments due from Tenant the difference between the actual Additional
Rent for the preceding calendar year and the estimated amount paid by Tenant
during such year. If this Lease shall expire or be terminated on any date other
than the last day of a calendar year, then the Additional Rent for such partial
calendar year shall be prorated on the basis of the number of days during the
year this Lease was in effect in relation to the total number of days in such
year.
(d) Tenant shall have the right to inspect, at reasonable times
and in a reasonable manner during the ninety (90) day period following the
delivery of Landlord's statement of the actual amount of the Additional Rent
such of Landlord's books of account and records as pertain to and contain
information concerning such Additional Rent in order to verify the amounts
thereof. Tenant's failure to exercise its rights hereunder within said ninety
(90) day period shall be deemed a waiver of its right to inspect or contest the
method, accuracy or amount of the Additional Rent. If as a result of such
inspection, Landlord and Tenant agree that Landlord has overcharged Tenant, the
amount overcharged shall be paid to Tenant within 30 days after such agreement
is reached.
5. TAXES, ASSESSMENTS AND OTHER CHARGES.
(a) Commencing on the earlier of (i) Tenant's substantial
completion of pre-occupancy tenant improvements or (ii) Rent Commencement Date
(such earlier date being the "Expense Commencement Date"), Tenant shall pay and
discharge promptly when due and payable all taxes, sewer rents, water charges,
assessments and other charges, imposts and levies of every kind and nature
whatsoever, whether general or special, ordinary or extraordinary, arising or
accruing during the Term of this Lease, which have been or may hereafter be
imposed, charged, assessed or levied upon or against, or which have or may
become due and payable with respect to the Premises (and Tenant's Proportionate
Share (as defined in Paragraph 24) for any of the foregoing that are not
separately identifiable to the Premises) or any part thereof or which
4.
may be imposed, assessed, charged, or levied upon the leasehold estate hereby
created or upon the reversionary estate in the Premises, under or by virtue of
any present or future law, rule, requirement, order, direction, ordinance or
regulation of any governmental or other lawful authority whatsoever, and for any
reason whatsoever, and which shall become due and payable during the Term of
this Lease (collectively, all of the foregoing, "Taxes"); provided that said
taxes, sewer rents, water charges, assessments and other charges shall, as to
the tax year or years in which this Lease shall commence and the tax year or
years in which this Lease shall be terminated, be apportioned according to the
part of such tax year within the Term, and if the tax rate for such tax year has
not been determined, it shall be presumed that the tax rate for such tax year
will be the same as for the previous tax year, subject to adjustment when actual
tax bills are available. Tenant shall have no obligation with respect to any
taxes, sewer rents, water charges or assessments which accrued for periods prior
to the Expense Commencement Date.
(b) Tenant shall promptly pay the amounts set forth in
Paragraph 5(a) as Additional Rent under Paragraph 4.
(c) If Tenant shall default in the payment of any taxes,
assessments or public charges required to be paid by Tenant, Landlord shall have
the right to pay the same together with any penalties and/or interest, in which
event the amount so paid by Landlord shall be deemed Additional Rent.
6. TENANT'S WORK. Prior to the Expense Commencement Date, Tenant
shall, at its sole cost and expense, perform pro-occupancy improvements in
accordance with Paragraph 7.3.
As soon as reasonably practicable after the execution of this
Lease, Tenant shall perform the asbestos abatement tasks identified in Exhibit
B, attached hereto, for which Landlord will credit Tenant with Tenant's actual
out-of-pocket expenses (whether such expenses are incurred directly or as a part
of improvements made to the Premises by Tenant, including, without limitation,
improvements of Tenant in upgrading or replacing HVAC systems that may require
removal of asbestos for installation (and in the case of the latter, the costs
attributed to such tasks shall be reasonably estimated by agreement of the
parties if not separately itemized)) up to a maximum of $20,000 towards the Base
Rent due for the thirteenth month of the Lease. Landlord shall not be
responsible for the condition or remediation of any other asbestos containing
materials at or on the Premises, all of which shall be Tenant's responsibility.
Tenant acknowledges receipt of a copy of the summary of asbestos containing
materials attached hereto in Exhibit C prepared by a consultant to Landlord,
which Landlord is providing to Tenant without representation or warranty.
Landlord hereby agrees that Landlord shall deliver the heating,
ventilating and air-conditioning ("HVAC"), electrical and plumbing systems,
electrical and plumbing fixtures and the roof in good working order, it being
acknowledged and agreed by Tenant that Landlord shall have no ongoing obligation
with respect to the maintenance, replacement or repair of said items from or
after the Commencement Date. By taking possession of the Premises, Tenant shall
be deemed to have accepted the condition of the HVAC, electrical and plumbing
systems, electrical and plumbing fixtures and the roof.
5.
7. ACCEPTANCE OF PREMISES; MAINTENANCE AND ALTERATION OF PREMISES; NO
MECHANIC'S LIENS.
7.1 ACCEPTANCE OF PREMISES.
(a) Tenant accepts the Premises, including the
improvements thereon, in the condition they are in as of the Commencement Date
of this Lease. Tenant hereby acknowledges: (a) that it has satisfied itself
with respect to the condition of the Premises (including, but not limited to the
electrical and fire sprinkler systems, environmental aspects, compliance with
Applicable Law, as defined in Paragraph 34) and the present and future
suitability of the Premises for Tenant's intended use, (b) that Tenant has made
such investigation as Tenant deems necessary with respect to such matters and
assumes all responsibility for such investigations as the same relate to
Tenant's occupancy of the Premises, and (c) that neither Tenant nor any of
Tenant's agents, has made any oral or written representations or warranties with
respect to such matters other than as set forth in this Lease.
(b) Tenant shall, at Tenant's sole cost and expense and
at all times, keep the Premises and every part thereof in as good operating
order, condition and state of repair, structural and non-structural (whether or
not such portion of the Premises requiring repair, or the means of repairing the
same, are reasonably or readily accessible to Tenant, and whether or not the
need for such repairs occurs as a result of Tenant's use, any prior use, the
elements or the age of such portion of the Premises) as when received,
including, without limiting the generality of the foregoing, all equipment or
facilities serving the Premises, such as plumbing, heating, air conditioning,
ventilating, electrical, lighting facilities, boilers, fired or unfired pressure
vessels, fire sprinkler and/or standpipe and hose or other automatic fire
extinguishing system, including fire alarm and/or smoke detection systems and
equipment, fire hydrants, fixtures, walls (interior and exterior), foundations,
ceilings, roofs, floors, windows, doors, plate glass, skylights, landscaping,
driveways, parking lots, fences, retaining walls, signs, sidewalks and parkways
located in, on, about, or adjacent to the Premises. Tenant, in keeping the
Premises in such good operating order, condition and state of repair, shall
exercise and perform good maintenance practices. Tenant's obligations shall
include restorations, replacements or renewals when necessary to keep the
Premises and all improvements thereon or a part thereof in such good operating
order, condition and state of repair. During the Term, Tenant shall keep the
Premises in a clean, safe and healthy condition so as to conform to all lawful
requirements, laws and ordinances and directions of the proper public
authorities (including, without limitation, compliance under the Americans with
Disabilities Act, with respect to which Landlord shall have no responsibility
hereunder, whether such compliance relates to conditions existing prior to or
following the Commencement Date) and the requirements of all policies of
insurance from time to time in force during the term of this Lease, all at
Tenant's own sole cost and expense, except for any Hazardous Substance to the
extent Tenant is not responsible therefor under Paragraph 34. Landlord shall be
under no obligation to make any repairs or replacements to the Premises or any
portion thereof.
(b) (i) Notwithstanding the foregoing or anything
contained in Paragraph 9, with respect to the Building and Land constituting the
Premises that are delivered to Tenant under this Lease, Landlord shall
effectuate seismic and structural alterations necessary to comply with
applicable laws, and the Americans With Disabilities Act and code compliance, in
6.
each case to the extent not arising from the use and occupancy of the Premises
by Tenant or Tenant's construction of improvements or alterations (and those so
arising shall be Tenant's responsibility). With respect to compliance resulting
from the actions of third parties, Landlord's responsibility shall only arise in
the event of unsolicited or unilateral action by such third parties, uninitiated
by Tenant. Landlord shall be entitled to charge and collect from Tenant
Tenant's Proportionate Share all expenses pertaining to Landlord's obligations
under this Paragraph, such expenses being payable 30 days following Landlord's
invoice; provided however, that if Tenant's Proportionate Share of such expenses
shall exceed $29,000 (on a project by project basis), Landlord shall amortize
such expenses over the useful life thereof (in accordance with generally
accepted accounting principles) and Tenant shall pay such amortized amount
monthly through the earlier of (x) the expiration or termination of this Lease
or (y) the expiration of such useful life. All amounts payable under this
Paragraph by Tenant shall be deemed Additional Rent under this Lease. Tenant
shall allow Landlord and its agents and contractors access to the Premises for
the purpose of Landlord satisfying its obligations under this Paragraph.
(c) Tenant shall, at Tenant's sole cost and expense,
procure and maintain contracts, with copies to Landlord, in customary form and
substance for, and with contractors specializing and experienced in, the
inspection, maintenance and service of the following equipment and improvements,
if any, located on the Premises: (i) heating, air conditioning and ventilation
equipment, (ii) boiler, fired or unfired pressure vessels, (iii) fire sprinkler
and/or standpipe and hose or other automatic fire extinguishing systems,
including fire alarm and/or smoke detection, (iv) landscaping and irrigation
systems, and (v) roof covering and drain maintenance. If Tenant fails to
procure and maintain such foregoing contracts, Landlord shall have the right to
procure and maintain such contracts at Tenant's expense.
7.2 LANDLORD'S OBLIGATIONS. It is intended by the Parties
hereto that Landlord have no obligation, in any manner whatsoever, to repair and
maintain the Premises, the improvements located thereon, or the equipment
therein, whether structural or non-structural, all of which obligations are
intended to be that of the Tenant. It is the intention of the Parties that the
terms of this Lease govern the respective obligations of the Parties as to
maintenance and repair of the Premises. Notwithstanding the foregoing, nothing
contained in this Paragraph shall supersede the obligations of Landlord under
Paragraph 7.1(b)(i). Tenant and Landlord expressly waive the benefit of any
statute now or hereafter in effect to the extent it is inconsistent with the
terms with respect to, or which affords Tenant the right to make repairs at the
expense of Landlord or to terminate this Lease by reason of, any needed repairs.
7.3 UTILITY INSTALLATIONS; TRADE FIXTURES; ALTERATIONS.
(a) The term "UTILITY INSTALLATIONS" is used in this
Lease to refer to all carpeting, window coverings, air lines, power panels,
electrical distribution, security, fire protection systems, communication
systems, lighting fixtures, heating, ventilating, and air conditioning
equipment, plumbing, and fencing in, on or about the Premises. The term
"Trade Fixtures" shall mean Tenant's machinery and equipment. The term
"Alterations" shall mean any modification of the improvements on the Premises
from that which are provided by Landlord under the terms of this Lease, other
than Utility Installations or Trade Fixtures, whether by addition or
deletion. "Tenant Owned Alterations and/or Utility Installations" are
defined as
7.
Alterations and/or Utility Installations made by Tenant during the Term that are
not yet owned by Landlord. Tenant shall not make any Alterations or Utility
Installations in, on, under or about the Premises without Landlord's prior
written consent which consent shall not be unreasonably withheld or delayed.
Tenant may, however, make non-structural Utility Installations to the interior
of the Premises (excluding the roof), as long as they are not visible from the
outside, do not involve puncturing, relocating or removing the roof or any
existing walls, the cost thereof for any single Utility Installation during the
Term does not exceed Twenty-Five Thousand Dollars ($25,000) and any such Utility
Installation does not adversely affect any existing Utility Installation (each a
"Permitted Utility Installation").
(b) Any Alterations or Utility Installations that Tenant
shall desire to make and which require the consent of the Landlord shall be
presented to Landlord in written form with proposed detailed plans. All
consents given by Landlord under this Paragraph 7 shall be deemed conditioned
upon: (i) Tenant's acquiring applicable permits required by governmental
authorities, (ii) the furnishing of copies of such permits together with a copy
of the plans and specifications for the Alteration or Utility Installation to
Landlord prior to commencement of the work thereon, and (iii) the compliance by
Tenant with all conditions of said permits in a prompt and expeditious manner.
Any Alterations or Utility Installations by Tenant during the Term shall be done
in a good and workmanlike manner, with good and sufficient materials, and in
compliance with all Applicable Law. Tenant shall promptly upon completion
thereof furnish Landlord with as-built plans and specifications therefor.
Landlord may (but without obligation to do so) condition its consent to any
requested Alteration or Utility Installation that costs Twenty-Five Thousand
Dollars ($25,000) or more upon Tenant's providing Landlord with a lien and
completion bond in any amount equal to one and one-half times the estimated cost
of such Alteration or Utility Installation and/or upon Tenant's posting an
additional Security Deposit with Landlord under Paragraph 38 hereof; PROVIDED,
HOWEVER, that Tenant shall have no obligation to provide such bond or Security
Deposit to Landlord with respect to Permitted Utility Installations.
(c) Tenant shall pay, when due, all claims for labor or
material furnished or alleged to have been furnished to or for Tenant at or for
use on the Premises, which claims are or may be secured by any mechanics' or
materialmen's lien against the Premises or any interest therein. Tenant shall
give Landlord not less than ten (10) days' notice prior to the commencement of
any work in, on or about the Premises, and Landlord shall have the right to post
notices of non-responsibility in or on the Premises as provided by law;
PROVIDED, HOWEVER, that Tenant shall have no obligation to provide such notice
to Landlord with respect to Permitted Utility Installations. Tenant shall not
permit mechanic's, laborer's, materialmen's or other liens to stand against the
Premises for any labor or material furnished to Tenant or claimed to have been
furnished to Tenant in connection with work of any character performed or
claimed to have been performed on the Premises by or at the direction or
sufferance of Tenant. If Tenant shall, in good faith, contest the validity of
any such lien, claim or demand, then Tenant shall, at its sole expense defend
and protect itself, Landlord and the Premises against the same and shall pay and
satisfy any such adverse judgment that may be rendered thereon before the
enforcement thereof against the Landlord or the Premises. If Landlord shall
require, Tenant shall furnish to Landlord a surety bond satisfactory to Landlord
in an amount equal to one and one-half times the amount of such contested lien,
claim or demand, indemnifying Landlord against liability for the same, as
required by law for the holding of the Premises free from the effect of such
lien or claim: On
8.
final determination of the lien or claim for lien, Tenant shall immediately pay
any judgment rendered with all proper costs and charges and shall have the lien
released or judgment satisfied at Tenant's own expense, and Landlord will
promptly return any security which Tenant may have furnished to Landlord.
Tenant's obligations hereunder shall survive any termination or expiration of
the Lease.
7.4 OWNERSHIP; REMOVAL; SURRENDER; AND RESTORATION
(a) Subject to Landlord's right to require their removal
or become the owner thereof as hereinafter provided in this Paragraph 7.4, all
Alterations and Utility Installations made to the Premises by Tenant shall be
the property of and owned by Tenant, but considered a part of the Premises.
Landlord may, at any time and at its option, elect in writing to Tenant to be
the owner of all or any specified part of the Tenant Owned Alterations and
Utility Installations. Unless otherwise instructed per subparagraph 7.4(b)
hereof, all Tenant Owned Alterations and Utility Installations shall, at the
expiration or earlier termination of this Lease, become the property of Landlord
and remain upon and be surrendered by Tenant with the Premises.
(b) At the time of Tenant's request for approval to make
Tenant Owned Alterations or Utility Installations, Tenant shall request and
Landlord shall advise Tenant in writing of Landlord's requirement as to whether
or which portion of such Owned Alterations or Utility Installations are to be
removed by Tenant upon termination of the Lease. Unless express written
approval to leave such Tenant Owned Alterations or Utility Installations is
provided by Landlord, the same shall be removed by Tenant upon termination of
the Lease. Landlord may require the removal at any time of all or any part of
any Tenant Owned Alterations or Utility Installations made without the written
consent of Landlord.
(c) Tenant shall surrender the Premises by the end of
the last day of the Term or any earlier termination date, with all of the
improvements, parts and surfaces thereof broom clean and free of debris and in
as good operating order, condition and state of repair as when received and
otherwise in conformity with Tenant's obligations under this Paragraphs 7 and 34
and Applicable Law, excepting ordinary wear and tear and damage caused by fire
or other casualty loss which Tenant is not obligated to repair, replace or
otherwise remedy (or bear the cost thereof) under any provision of this Lease.
"Ordinary wear and tear" shall not include any damage or deterioration that
would have been prevented by good maintenance practice or by Tenant performing
all of its obligations under this Lease. Except as otherwise agreed, designated
pursuant to the approval procedure set forth in Paragraph 7.3 or specified in
writing by Landlord, the Premises, as surrendered, shall include the Utility
Installations. The obligation of Tenant shall include without limitation the
repair of any damage occasioned by the installation, maintenance or removal of
Tenant's Trade Fixtures, furnishings, equipment, and Alterations and/or Utility
Installations, as well as the removal of any storage tank installed by or for
Tenant, and the removal, replacement, or remediation of any soil, material or
ground water to the extent contaminated by Tenant, all as may then be required
by Applicable Law and/or good practice. Tenant's Trade Fixtures shall remain
the property of Tenant and shall be removed by Tenant subject to its obligation
to repair and restore the Premises per this Lease. Notwithstanding the
foregoing, Landlord and Tenant agree that immediately prior to the surrender of
the Premises by
9.
Tenant, the obligations of Tenant to prepare for such surrender shall
specifically include, but shall not be limited to, the following:
(1) VAULTS, SUMPS, PITS AND CONTAINMENT
CHANNELS. Tenant represents to Landlord that Tenant shall not use any existing
vault(s), sump(s), pit(s) or containment channel(s) on the Premises. If (i) any
vault(s), sump(s), pit(s) or containment channel(s) are used or installed by
Tenant on the Premises, and (ii) after removal of any equipment, if one or more
vault(s), sump(s), pit(s) or containment channel(s) is exposed, Tenant shall:
A. Clear all debris and any free
standing liquids from such vault(s), sump(s), pit(s) or containment channel(s);
B. Clean interior walls and floors
of the vault(s), sump(s), pit(s) or containment channel(s) to the extent
necessary to permit a visual inspection by representatives of Landlord in order
that such representatives may determine the overall condition of the vault(s),
sump(s), pit(s) or containment channel(s);
C. Notify Landlord that such
vault(s), sump(s), pit(s) or containment channel(s) are available for inspection
and provide Landlord's representatives reasonable access to the Premises in
order to accomplish such inspection.
(2) UTILITIES. Upon removal of equipment
that requires the disconnection of utilities, Tenant shall:
A. With regard to electrical
overhead drops:
1. Remove electrical feeds
to ceiling height or
above; and
2. Terminate wiring in
junction boxes according
to local codes;
B. With regard to electrical wall
feeds:
1. Terminate wiring at
junction box or panel
according to local
codes;
C. With regard to electrical floor
feeds:
1. Terminate electrical
floor feeds at floor
level or below; and
2. Terminate wiring in
junction box according
to local codes;
D. With regard to gas, steam, air,
etc.:
10.
1. Terminate service as
close to ceiling, wall
or floor as practical;
and
2. Terminate service line
in accordance with local
building codes.
(3) WALLS. Tenant shall remove from all
walls any unnecessary and or unused brackets, piping, fixtures, etc.
(4) FLOORS. Tenant shall leave all floors
free of all trash and debris. Tenant shall also remove any process residue and
repair any damage to the floors (i) caused by Tenant in removal of equipment or
(ii) significantly caused, aggravated or contributed to by Tenant during the
Term.
8. UTILITY AND JANITOR SERVICE. Tenant shall pay for all water,
sewer, gas, steam, standby sprinkler service, electric current, and all other
utilities used or consumed in the Premises for which separate metering has been
provided, at the rates charged by the utility providing the same, as and when
the charges for the same shall become due and payable, and shall, at its own
expense, furnish all security systems, fuel and janitor and other services
required in connection with the operation of the Premises. Tenant shall pay
Tenant's Proportionate Share of all utilities used and consumed in the Building
for which separate metering is not available, as provided in Paragraph 4. The
parties acknowledge that as of the Commencement Date of the Lease certain
electrical utilities are not separately metered. If during the course of the
Lease Tenant makes improvements to the Premises that separately meter such
utilities for Premises, Landlord shall provide Tenant with a credit of $30,000
towards such improvements. Landlord shall be responsible for the cost of
utilizing an energy management and monitoring system if such is required while
the Premises are not separately metered.
9. COMPLIANCE WITH LAWS. Except with respect to such matters that
are Landlord's obligations under Paragraph 7.1 (b)(i), Tenant agrees that in the
conduct of its business and occupancy of the Premises it shall comply with all
laws, ordinances, rules and regulations of all public authorities having any
jurisdiction over Tenant, the Premises or any part thereof.
10. INSURANCE.
10.1 PAYMENT FOR INSURANCE. Regardless of whether the Landlord
or Tenant is the Insuring Party, Tenant shall pay for all insurance required
under this Paragraph 10 except to the extent of the cost attributable to
liability insurance carried by Landlord. Premiums for policy periods commencing
prior to or extending beyond the Lease Term shall be prorated to correspond to
the Lease Term. Payment shall be made by Tenant to Landlord within ten (10)
days following receipt of an invoice for any amount due.
10.2 LIABILITY INSURANCE. Irrespective of whether the Landlord
or Tenant is the Insuring Party, Tenant shall obtain and keep in force during
the Term of this Lease a Commercial General Liability policy of insurance
protecting Tenant and Landlord (as an additional insured) against claims for
bodily injury, personal injury and property damage, based upon, involving or
arising out of the ownership, use, occupancy or maintenance of the Premises
11.
and all areas appurtenant thereto. Such insurance shall be on an occurrence
basis providing single limit coverage in an amount not less than $1,000,000 per
occurrence with an "Additional Insured-Managers or Landlords of Premises"
Endorsement and contain the "Amendment of the Pollution Exclusion" for damage
caused by heat, smoke or fumes from a hostile fire. The policy shall not
contain any intra-insured exclusions as between insured persons or
organizations, but shall include coverage for liability assumed under this Lease
as an "insured contract" for the performance of Tenant's indemnity obligations
under this Lease. The limits of said insurance required by this Lease or as
carried by Tenant shall not, however, limit the liability of Tenant nor relieve
Tenant of any obligation hereunder. Tenant shall provide Landlord with written
evidence that such insurance is in force. All insurance to be carried by Tenant
shall be primary to and not contributory with any similar insurance carried by
Landlord, whose insurance shall be considered excess insurance only.
10.3 PROPERTY INSURANCE-BUILDING, IMPROVEMENTS AND RENTAL VALUE.
(a) BUILDING AND IMPROVEMENTS. The Insuring Party shall
obtain and keep in force during the Lease Term a policy or policies in the name
of Landlord, with loss payable to Landlord and to the holders of any mortgages,
deeds of trust or ground leases on the Premises ("Lender(s)"), insuring loss or
damage to the Premises. The amount of such insurance shall be equal to the full
replacement cost of the Premises, as the same shall exist from time to time, or
the amount required by Lenders, but in no event more than the commercially
reasonable and available insurable value thereof if, by reason of the unique
nature or age of the improvements involved, such latter amount is less than full
replacement cost. However, Tenant Owned Alterations and Utility Installations
shall be insured by Tenant under Paragraph 10.4 rather than by Landlord (unless
the item in question has become the property of Landlord under the terms of this
Lease). If the coverage is feasibly available and commercially appropriate,
such policy or policies shall insure against all risks of direct physical loss
or damage (except the perils of flood and/or earthquake unless required by a
Lender), including coverage for any additional costs resulting from debris
removal and reasonable amounts of coverage for the enforcement of any ordinance
or law regulating the reconstruction or replacement of any undamaged sections of
the Premises required to be demolished or removed by reason of the enforcement
of any building, zoning, safety or land use laws as the result of a covered
cause of loss. Said policy or policies shall also contain an agreed valuation
provision in lieu of any coinsurance clause, waiver of subrogation, and
inflation guard protection causing an increase in the annual property insurance
coverage amount by a factor of not less than the adjusted U.S. Department of
Labor Consumer Price Index for All Urban Consumers for the city nearest to where
the Premises are located. If such insurance coverage has a deductible clause,
the deductible amount shall not exceed $10,000 per occurrence, and Tenant shall
be liable for such deductible amount in the event of an Insured Loss, as defined
in Paragraph 12.1(c).
(b) ADJACENT PREMISES. If the Premises are part of a
larger building, or if the Premises are part of a group of buildings owned by
Landlord which are adjacent to the Premises, Tenant shall pay for any increase
in the premiums for the property insurance of such building or buildings to the
extent said increase is caused by Tenant's acts, omissions, use or occupancy of
the Premises.
12.
10.4 TENANT'S PROPERTY INSURANCE. Subject to the requirements
of Paragraph 10.5, Tenant at its cost shall either by separate policy or, at
Landlord's option, by endorsement to a policy already carried, maintain
insurance coverage on all of Tenant's personal property, Tenant Owned
Alterations and Utility Installations in, on, or about the Premises similar in
coverage to that carried by the Insuring Party under Paragraph 10.3. Such
insurance shall be full replacement cost coverage with a deductible of not to
exceed $1,000 per occurrence. The proceeds from any such insurance shall be
used by Tenant for the replacement of personal property or the restoration of
Tenant Owned Alterations and Utility Installations. Tenant shall be the
Insuring Party with respect to the insurance required by this Paragraph 10.4 and
shall provide Landlord with written evidence that such insurance is in force.
10.5 INSURANCE POLICIES. Insurance required hereunder shall be
in companies duly licensed to transact business in California, and maintaining
during the policy term a "General Policyholders Rating" of at least B+, V, or
such other rating as may be required by a Lender, as set forth in the most
current issue of "Best's Insurance Guide." Tenant shall not do or permit to be
done anything which shall invalidate the insurance policies referred to in this
Paragraph 10. Tenant shall cause to be delivered to Landlord certified copies
of policies of such insurance or certificates evidencing the existence and
amounts of such insurance with the insured and loss payable clauses as required
by this Lease. No such policy shall be cancelable or subject to modification
except after thirty (30) days prior written notice to Landlord. Tenant shall at
least thirty (30) days prior to the expiration of such policies, furnish
Landlord with evidence of renewals or "insurance binders" evidencing renewal
thereof, or Landlord may order such insurance and charge the cost thereof to
Tenant, which amount shall be payable by Tenant to Landlord upon demand. If the
Insuring Party shall fail to procure and maintain the insurance required to be
carried by the Insuring Party under this Paragraph 10, the other party may, but
shall not be required to, procure and maintain the same, but at Tenant's
expense.
10.6 WAIVER OF SUBROGATION. Notwithstanding anything to the
contrary in this Lease, Tenant and Landlord (each a "Waiving Party") hereby
release and relieve the other, and waive their entire right to recover damages
(whether in contract or in tort) against the other, for loss of or damage to the
Waiving Party's property arising out of or incident to the perils actually
insured against under any such insurance policies carried by the parties in
force at the time of any such loss or damage and benefiting such Waiving Party.
The effect of such releases and waivers of the right to recover damages shall
not be limited by the amount of insurance carried or required, or by any
deductibles applicable thereto. The parties shall inform their respective
insurers of the foregoing waiver and shall cause their respective insurance
policies to provide that the insurer thereunder waives all rights of recovery by
way of subrogation as required herein in connection with any property damage
covered by the policy.
10.7 INDEMNITY. Except to the extent attributable to Landlord's
breach of express warranties or default under this Lease (including, without
limitation, Landlord's obligations under Paragraph 34 of this Lease), and/or the
gross negligence or willful misconduct of Landlord or its agents, Tenant shall
indemnify, protect, defend and hold harmless the Premises, Landlord and its
agents, Landlord's master or ground landlord, partners and Lenders, from and
against any and all claims, loss of rents and/or damages, costs, liens,
judgments, penalties, permits, attorney's and consultant's fees, expenses and/or
liabilities directly or indirectly arising out of or involving in any way the
occupancy of the Premises by Tenant, the
13.
conduct of Tenant's business, any act, omission or neglect of Tenant, its
agents, contractors, employees, or out of any default or breach by Tenant in the
performance in a timely manner of any obligation on Tenant's part to be
performed under this Lease. The foregoing shall include, but not be limited to,
the defense or pursuit of any claim or any action or proceeding involved
therein, and whether or not (in the case of claims made against Landlord)
litigated and/or reduced to judgment, and whether well founded or not. In case
any action or proceeding be brought against Landlord by reason of any of the
foregoing matters, Tenant upon notice from Landlord shall defend the same at
Tenant's expense by counsel reasonably satisfactory to Landlord and Landlord
shall cooperate with Tenant in such defense. Landlord need not have first paid
any such claim in order to be so indemnified.
10.8 EXEMPTION OF LANDLORD FROM LIABILITY. Except to the extent
attributable to Landlord's default under this Lease (including, without
limitation, Landlord's obligations under Paragraph 34 of this Lease), and/or the
gross negligence or willful misconduct of Landlord or its agents, Landlord shall
not be liable for injury or damage to the person or goods, wares, merchandise or
other property of Tenant, Tenant's employees, contractors, invitees, customers,
or any other person in or about the Premises, whether such damage or injury is
caused by or results from fire, steam, electricity, gas, water or rain, or from
the breakage, leakage, obstruction or other defects of pipes, fire sprinklers,
wires, appliances, plumbing, air conditioning or lighting fixtures, or from any
other cause, whether the said injury or damage results from conditions arising
upon the Premises or upon other portions of the building of which the Premises
are a part, or from other sources or places, and regardless of whether the cause
of such damage or injury or the means of repairing the same is accessible or
not. Landlord shall not be liable for any damages arising from any act or
neglect of any other tenant of Landlord.
10.9 INSURING PARTY. If the Premises are part of a larger
building, or if the portion of Building contained in the Premises is part of a
group of buildings which are adjacent to each other, then Landlord shall be the
Insuring Party for the property damage/casualty insurance under Paragraph
10.3(a) to be carried with respect to the Building only, and Tenant shall be the
Insuring Party for all other purposes of this Lease and in all other
circumstances.
11. COMMON AREA MAINTENANCE COSTS. Commencing with the Expense
Commencement Date (except for utilities which shall be payable from and after
the Commencement Date under Paragraph 8), to the extent not reimbursed to
Landlord by another tenant, Tenant shall pay Tenant's Proportionate Share of any
and all charges and expenses incurred by Landlord in connection with its
operation and maintenance of the Building and Land for a particular calendar
year, including, without limitation, plumbing systems, electrical systems,
heating, ventilation and air conditioning systems; license, permit and
inspection fees; maintenance, operation and repair of the Building; amortization
of capital improvements or replacements for the Building together with interest
at the rate of the lesser of 12% per annum or the maximum rate allowable under
law on the unamortized balance thereof; and in general all other costs and
expenses which would, under generally accepted accounting principals be regarded
as operating and maintenance costs and expenses. The preceding list of common
area maintenance costs is for definitional purposes only and shall not impose
any obligations upon Landlord to incur such expenses or provide such services,
except as herein specifically provided.
14.
Tenant shall promptly pay Tenant's Proportionate Share of such common
area maintenance costs as provided in Paragraph 4.
Notwithstanding anything to the contrary in the definition of common area
maintenance costs set forth in this Lease, common area maintenance costs shall
not include the following:
(i) depreciation on the Building;
(ii) interest, principal, points and fees on debt or
amortization on any mortgages and deeds of trust or other debt instruments
secured by the Building or the Land or any underlying ground lease;
(iii) costs of special services rendered to individual tenants
(including Tenant) for which a special charge is made to such tenant;
(iv) all costs, expenses, penalties, damages, fines and
judgments as a result of or in connection with the presence of any Hazardous
Substances at the Premises or a Hazardous Substance Condition;
(v) Landlord's general corporate overhead and general and
administrative expenses; and
(vi) marketing costs, including, without limitation, leasing
commissions, attorneys' fees, space planning costs and other costs and expenses
incurred in connection with the leasing of the Building to a tenant.
12. DAMAGE OR DESTRUCTION OF PREMISES AND USE OF INSURANCE PROCEEDS.
12.1 DEFINITIONS.
(a) "PREMISES PARTIAL DAMAGE" shall mean damage or
destruction to the improvements on the Premises, other than Tenant Owned
Alterations and Utility Installations, the repair cost of which damage or
destruction is less than 50% of the then Replacement Cost of the Premises
immediately prior to such damage or destruction, excluding from such calculation
the value of the land and Tenant Owned Alterations and Utility Installations.
(b) "PREMISES TOTAL DESTRUCTION" shall mean damage or
destruction to the Premises, other than Tenant Owned Alterations and Utility
Installations the repair cost of which damage or destruction is 50% or more of
the then Replacement Cost of the Premises immediately prior to such damage or
destruction, excluding from such calculation the value of the Land and Tenant
Owned Alterations and Utility Installations.
(c) "INSURED LOSS" shall mean damage or destruction to
improvements on the Premises, other than Tenant Owned Alterations and Utility
Installations, which was caused by an event required to be covered by the
insurance described in Paragraph 10.3(a), irrespective of any deductible amounts
or coverage limits involved.
15.
(d) "REPLACEMENT COST" shall mean the cost to repair or
rebuild the improvements owned by Landlord at the time of the occurrence to
their condition existing immediately prior thereto, including demolition, debris
removal and upgrading required by the operation of applicable building codes,
ordinances or laws, and without deduction for depreciation.
(e) "HAZARDOUS SUBSTANCE CONDITION" shall mean the
occurrence or discovery of a condition involving the presence of, or a
contamination by, a Hazardous Substance as defined in Paragraph 34, in, on, or
under the Premises.
12.2 PARTIAL DAMAGE-INSURED LOSS. If a Premises Partial Damage
that is an Insured Loss occurs, then Landlord shall, at Landlord's expense,
repair such damage (but not Tenant's Trade Fixtures or Tenant Owned Alterations
and Utility Installations) as soon as reasonably possible and this Lease shall
continue in full force and effect; PROVIDED, HOWEVER, that Tenant shall, at
Landlord's election, make the repair of any damage or destruction the total cost
to repair of which is $10,000 or less, and, in such event, Landlord shall make
the insurance proceeds available to Tenant on a reasonable basis for that
purpose. Notwithstanding the foregoing, if the required insurance was not in
force or the insurance proceeds are not sufficient to effect such repair, the
Insuring Party shall promptly contribute the shortage in proceeds (except as to
the deductible which is Tenant's responsibility) as and when required to
complete said repairs. In the event, however, the shortage in proceeds was due
to the fact that, by reason of the unique nature of the improvements, full
replacement cost insurance coverage was not commercially reasonable and
available, Landlord shall have no obligation to pay for the shortage in
insurance proceeds or to fully restore the unique aspects of the Premises unless
Tenant provides Landlord with the funds to cover same, or adequate assurance
thereof, within ten (10) days following receipt of written notice of such
shortage and request therefor. If Landlord receives said funds or adequate
assurance thereof within said ten (10) day period, the party responsible for
making the repairs shall complete them as soon as reasonably possible and this
Lease shall remain in full force and effect. If Landlord does not receive such
funds or assurance within said period, Landlord may nevertheless elect by
written notice to Tenant within ten (10) days thereafter to make such
restoration and repair as is commercially reasonable with Landlord paying any
shortage in proceeds, in which case this Lease shall remain in full force and
effect. If in such case Landlord does not so elect, then this Lease shall
terminate sixty (60) days following the occurrence of the damage or destruction.
Unless otherwise agreed, Tenant shall in no event have any right to
reimbursement from Landlord for any funds contributed by Tenant to repair any
such damage or destruction. Premises Partial Damage due to flood or earthquake
shall be subject to Paragraph 12.3 rather than Paragraph 12.2, notwithstanding
that there may be some insurance coverage, but the net proceeds of any such
insurance shall be made available for the repairs if made by either party.
12.3 PARTIAL DAMAGE-UNINSURED LOSS. If a Premises Partial
Damage that is not an Insured Loss occurs, unless caused by a negligent or
willful act of Tenant (in which event Tenant shall make the repairs at Tenant's
expense and this Lease shall continue in full force and effect, but subject to
Landlord's rights under Paragraph 15), Landlord may at Landlord's option,
either: (i) repair such damage as soon as reasonably possible at Landlord's
expense, in which event this Lease shall continue in full force and effect, or
(ii) give written notice to Tenant within thirty (30) days after receipt by
Landlord of knowledge of the occurrence of such damage of
16.
Landlord's desire to terminate this Lease as of the date sixty (60) days
following the giving of such notice. In the event Landlord elects to give such
notice of Landlord's intention to terminate this Lease, Tenant shall have the
right within ten (10) days after the receipt of such notice to give written
notice to Landlord of Tenant's commitment to pay for the repair of such damage
totally at Tenant's expense and without reimbursement from Landlord. Tenant
shall provide Landlord with the required funds or satisfactory assurance thereof
within thirty (30) days following Tenant's said commitment. In such event this
Lease shall continue in full force and effect, and Landlord shall proceed to
make such repairs as soon as reasonably possible and the required funds are
available. If Tenant does not give such notice and provide the funds or
assurance thereof within the times specified above, this Lease shall terminate
as of the date specified in Landlord's notice of termination.
12.4 TOTAL DESTRUCTION. Notwithstanding any other provision
hereof, if a Premises Total Destruction occurs (including any destruction
required by any authorized public authority), this Lease shall terminate as of
the date of such Premises Total Destruction, whether or not the damage or
destruction is an Insured Loss or was caused by a negligent or willful act of
Tenant. In the event, however, that the damage or destruction was caused by
Tenant, Landlord shall have the right to recover Landlord's damages from Tenant
except as released and waived in Paragraph 10.6.
12.5 DAMAGE NEAR END OF TERM. If at any time during the last
six (6) months of the Lease Term there is damage for which the cost to repair
exceeds three (3) month's Basic Rent, whether or not an Insured Loss, Landlord
or Tenant may, at such party's option, terminate this Lease effective sixty (60)
days following the date of occurrence of such damage by giving written notice to
the other party of the notifying party's election to do so within thirty (30)
days after the date of occurrence of such damage, PROVIDED, HOWEVER, if Tenant
at that time has an exercisable option to extend this Lease which has not
expired, then Tenant may preserve this Lease by, within twenty (20) days
following the occurrence of the damage, or before the expiration of the time
provided in such option for its exercise, whichever is earlier ("Exercise
Period"), (i) exercising such option and (ii) providing Landlord with any
shortage in insurance proceeds (or adequate assurance thereof) needed to make
the repairs. If Tenant duly exercises such option during said Exercise Period
and provides Landlord with funds (or adequate assurance thereof) to cover any
shortage in insurance proceeds, Landlord shall, at Landlord's expense repair
such damage as soon as reasonably possible and this Lease shall continue in full
force and effect. If Tenant fails to exercise such option and provide such
funds or assurance during said Exercise Period, then Landlord may at Landlord's
option terminate this Lease as of the expiration of said sixty (60) day period
following the occurrence of such damage by giving written notice to Tenant of
Landlord's election to do so within ten (10) days after the expiration of the
Exercise Period, notwithstanding any term or provision in the grant of option to
the contrary.
12.6 ABATEMENT OF RENT; TENANT'S REMEDIES. If Landlord shall be
obligated to repair or restore the Premises under the provisions of this
Paragraph 12 and shall not commence, in a substantial and meaningful way, the
repair or restoration of the Premises within ninety (90) days after such
obligation shall accrue, Tenant may, at any time prior to the commencement of
such repair or restoration, give written notice to Landlord and to any Lenders
of which Tenant has actual notice of Tenant's election to terminate this Lease
on a date not less
17.
than thirty (30) days following the giving of such notice. If Tenant gives such
notice to Landlord and such Lenders and such repair or restoration is not
commenced within thirty (30) days after receipt of such notice, this Lease shall
terminate as of the date specified in said notice. If Landlord or a Lender
commences the repair or restoration of the Premises within thirty (30) days
after receipt of such notice, this Lease shall continue in full force and
effect. "Commence" as used in this Paragraph shall mean either the
unconditional authorization of the preparation of the required plans, or the
beginning of the actual work on the Premises, whichever first occurs.
12.7 HAZARDOUS SUBSTANCE CONDITIONS. Except as otherwise set
forth in this Lease, to the extent any Hazardous Substance Condition is caused
or materially contributed to by Tenant, or pertains to or involves any Hazardous
Substance for which Tenant is responsible under this Lease, Tenant or, at
Landlord's option Landlord, shall make the investigation and remediation as
required by Applicable Law and Paragraphs 7.1 and 34 of the Lease at Tenant's
expense, and this Lease shall continue in full force and effect, but subject to
Landlord's rights under Paragraphs 7 and 34 of this Lease.
12.8 TERMINATION-ADVANCE PAYMENTS. Upon termination of this
Lease pursuant to this Paragraph 12, an equitable adjustment shall be made
concerning advance Basic Rent and any other advance payments made by Tenant to
Landlord. Landlord shall, in addition, return to Tenant so much of Tenant's
Security Deposit as has not been, or is not then required to be, used by
Landlord under the terms of this Lease.
12.9 WAIVE STATUTES. Landlord and Tenant agree that the terms
of this Lease shall govern the effect of any damage to or destruction of the
Premises with respect to the termination of this Lease and hereby waive the
provisions of any present or future statute to the extent inconsistent herewith.
13. CONDEMNATION. If the Premises or any portion thereof are taken
under the power of eminent domain or sold under the threat of the exercise of
such power (all of which are herein called "condemnation"), this Lease shall
terminate as to the part so taken as of the date the condemning authority takes
title or possession, whichever occurs first. If more than ten percent of the
rentable floor area of the Building within the Premises is taken by
condemnation, Tenant may, at Tenant's option, to be exercised in writing within
ten days after Landlord shall have given Tenant written notice of such taking
(or in the absence of such notice, within ten days after the condemning
authority shall have taken possession) terminate this Lease as of the date the
condemning authority takes such possession. If Tenant does not terminate this
Lease in accordance with the foregoing, this Lease shall remain in full force
and effect as to the portion of the Premises remaining, except that the Basic
Rent shall be reduced in the same proportion as the rentable floor area of the
Building within the Premises taken bears to the total rental floor area of the
Building located in the Premises. No reduction in Basic Rent shall occur if the
only portion of the Premises taken is land on which there is no building;
however, if such taking materially interferes with Tenant's access to and egress
from the Premises, Landlord and Tenant shall cooperate to establish reasonable
access and egress in view of such taking. Any award for the taking of all or
any part of the Premises under the power of eminent domain or any payment made
under the threat of exercise of such power shall be the property of Landlord,
whether such award shall be made as compensation or diminution in value of the
leasehold or for the taking of the fee, or as severance damages; provided
however, that Tenant shall be entitled to any
18.
compensation, separately awarded to Tenant for Tenant's relocation expenses
and/or loss of Trade Fixtures. In the event that this Lease is not terminated
by reason of such condemnation, Landlord shall, to the extent of its net
severance damages received, over and above the legal and other expenses incurred
by Landlord in the condemnation matter, repair any damage to the Premises
caused by such condemnation, except to the extent that Tenant has been
reimbursed therefor by the condemning authority. Tenant shall be responsible
for the payment of any amount in excess of such net severance damages required
to complete such repair.
14. ASSIGNMENT AND SUBLETTING.
(a) TENANT MAY NOT ASSIGN EXCEPT AS PROVIDED HEREIN/LANDLORD'S
CONSENT REQUIRED.
(i) Tenant shall not voluntarily or by operation of law
or merger assign, transfer, mortgage or otherwise transfer, encumber or sublet
all or any part of Tenant's interest in this Lease or in the Premises (an
"assignment"), without first obtaining Landlord's prior written consent, which
consent shall not be unreasonably withheld. In connection with any such request
by Tenant for Landlord's consent hereunder, Tenant shall provide to Landlord all
financial and other information (including information as to the prospective
assignee's intended use of the Premises with regard to the generation, storage,
use, treatment or disposal of Hazardous Substances) reasonably requested by
Landlord concerning the prospective assignee or sublessee. Landlord shall
respond within thirty (30) days to a request by Tenant for Landlord's consent as
provided herein following Landlord's receipt of such information.
(ii) A change in the control of Tenant (as defined
herein) shall constitute an assignment for the purposes hereunder. The
transfer, on a cumulative basis, in one or more transactions (including any
merger or consolidation) occurring from the Commencement Date through the date
of the last transfer to occur, of fifty percent (50%) or more of the voting
control of Tenant shall constitute a change of control and an assignment for
purposes hereunder; however, the mere dilution in such control resulting from
the issuance of common stock of Tenant in connection with a public offering of
such stock that is registered under the Securities Act of 1933, as amended,
shall not be deemed a change in control so long as there is no material change
in the management of Tenant in connection with such offering.
(A) Notwithstanding anything to the contrary
contained in Paragraphs 14 (i) and 14 (ii), Landlord agrees that Landlord's
prior written consent shall not be required under such Paragraphs 14 (i) and
(ii) for an assignment or subletting to any entity ("Transferee") (x) which
controls, is controlled by, or is under common control with Tenant for the
purpose of such entity conducting all or part of the business conducted by
Tenant, (y) which results from a reincorporation, merger, or consolidation with
Tenant, where such entity shall conduct the business previously conducted by
Tenant, or (z) which acquires substantially all of the stock or assets of
Tenant; provided: (1) such Transferee, except in the case of clause (x), above,
has a net worth (calculated on the same basis as Net Worth of Tenant, below)
equal to Tenant's as of the Commencement Date, (2) Landlord is provided written
notice within ten days of such transaction and a copy of the applicable
documents representing the transaction, and (3) any such transaction shall not
be, in whole or in part, part of a series of transaction which are a subterfuge
or attempt to avoid the restrictions of this Paragraph 14 (the foregoing,
hereinafter, a
19.
"Permitted Transfer"). Nothing herein shall relieve Tenant of any liability
under this Lease in the event of any assignment, subletting or other transfer,
whether pursuant to a Permitted Transfer or otherwise.
(iii) The involvement of Tenant or its assets in any
transaction, or series of transactions (by way of sale, acquisition, financing,
refinancing, merger, transfer, leveraged buy-out or otherwise), whether or not a
formal assignment or hypothecation of this Lease or Tenant's assets occurs,
which results or will result (at the time immediately after the transaction or
series of transactions) in a reduction of the Net Worth of Tenant as hereinafter
defined, by an amount equal to or greater than twenty-five percent (25%) of such
Net Worth of Tenant as it was represented to Landlord at the time of the
execution by Landlord of this Lease or at the time of the most recent assignment
to which Landlord has consented, or as it exists immediately prior to said
transaction or transactions constituting such reduction, at whichever time said
Net Worth of Tenant was or is greater, shall be considered an assignment of this
Lease by Tenant to which Landlord may reasonably withhold its consent. "Net
Worth of Tenant" for purposes of this Lease shall be the net worth of Tenant
(excluding any guarantors) established under generally accepted accounting
principles consistently applied.
(b) TERMS AND CONDITIONS APPLICABLE TO ASSIGNMENT AND
SUBLETTING.
(i) Any assignment or subletting shall not: (i) be
effective without the express written assumption by such assignee or sublessee
of the obligations of Tenant under this Lease (which, in the case of a sublease,
as such obligations pertain to the portion of the Premises and Term as pertain
to such sublease), (ii) release Tenant of any obligations hereunder, or (iii)
alter the primary liability of Tenant for the payment of Basic Rent and other
sums due Landlord hereunder or for the performance of any other obligations to
be performed by Tenant under this Lease.
(ii) Landlord may accept any rent or performance of
Tenant's obligations from any person other than Tenant pending approval or
disapproval of an assignment. Neither a delay in the approval or disapproval of
such assignment nor the acceptance of any rent or performance shall constitute a
waiver or estoppel of Landlord's right to exercise its remedies for the default
or breach by Tenant of any of the terms, covenants or conditions of this Lease.
(iii) The consent of Landlord to any assignment or
subletting shall not constitute a consent to any subsequent assignment or
subletting by Tenant or to any subsequent or successive assignment or subletting
by the sublessee. However, Landlord may consent to subsequent sublettings and
assignments of the sublease or any amendments or modifications thereto without
notifying Tenant or anyone else liable on this Lease or sublease and without
obtaining their consent, and such action shall not relieve such persons from
liability under this Lease or any sublease.
(iv) In the event of any default or breach of Tenant's
obligations under this Lease, Landlord may proceed directly against Tenant or
any one else responsible for the performance of the Tenant's obligations under
this Lease, including the sublessee, without first
20.
exhausting Landlord's remedies against any other person or entity responsible
therefor to Landlord, or any security held by Landlord or Tenant.
(v) Each request for consent to an assignment or
subletting shall be in writing, accompanied by information relevant to
Landlord's determination as to the financial and operational responsibility and
appropriateness of the proposed assignee or sublessee, including but not limited
to the intended use and/or required modification of the Premises, if any,
together with a non-refundable deposit of Five Hundred Dollars ($500) as
reasonable consideration for Landlord's considering and processing the request
for consent. Tenant agrees to provide Landlord with such other or additional
information and/or documentation as may be reasonably requested by Landlord.
(vi) Any assignee of, or sublessee under, this Lease
shall, by reason of accepting such assignment or entering into such sublease, be
deemed, for the benefit of Landlord, to have assumed and agreed to conform and
comply with each and every term, covenant, condition and obligation herein to be
observed or performed by Tenant during the term of said assignment or sublease
other than such obligations as are contrary to or inconsistent with provisions
of any assignment or sublease to which Landlord has specifically consented in
writing.
(vii) The occurrence of a transaction described in
Paragraph 14(a)(iii) shall give Landlord the right (but not the obligation) to
require that the Security Deposit be increased to an amount equal to three (3)
times the then monthly Basic Rent, and Landlord may make the actual receipt by
Landlord of the amount required to establish such Security Deposit a condition
to Landlord's consent to such transaction.
(c) ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO SUBLETTING.
The following terms and conditions shall apply to any subletting by Tenant of
all or any part of the Premises and shall be deemed included in all subleases
under this Lease whether or not expressly incorporated therein:
(i) Tenant hereby assigns and transfers to Landlord all
of Tenant's interest in all rentals and income arising from any sublease of all
or a portion of the Premises heretofore or hereafter made by Tenant, and
Landlord may collect such rent and income and apply same toward Tenant's
obligations under this Lease; PROVIDED, HOWEVER, that until a Default (as
defined herein) shall occur in the performance of Tenant's obligations under
this Lease, Tenant may, except as otherwise provided in this Lease, receive,
collect and enjoy the rents accruing under such sublease. Landlord shall not,
by reason of this or any other assignment of such sublease to Landlord, nor by
reason of the collection of the rents from a sublessee, be deemed liable to the
sublessee for any failure of Tenant to perform and comply with any of Tenant's
obligations to such sublessee under such sublease. Tenant hereby irrevocably
authorizes and directs any such sublessee, upon receipt of a written notice from
Landlord stating that a breach exists in the performance of Tenant's obligations
under this Lease, to pay to Landlord the rents and other charges due and to
become due under the sublease. Sublessee shall rely upon any such statement and
request from Landlord and shall pay such rents and other charges to Landlord
without any obligation or right to inquire as to whether such breach exists and
notwithstanding any notice from or claim from Tenant to the contrary. Tenant
shall have no
21.
right or claim against said sublessee, or, until the breach has been cured,
against Landlord, for any such rents and other charges so paid by said sublessee
to Landlord.
(ii) In the event of a breach by Tenant in the
performance of its obligations under this Lease, Landlord, at its option and
without any obligation to do so, may require any sublessee to attorn to
Landlord, in which event Landlord shall undertake the obligations of the
sublessor under such sublease from the time of the exercise of said option to
the expiration of such sublease; PROVIDED, HOWEVER, Landlord shall not be liable
for any prepaid rents or security deposit paid by such sublessee to such
sublessor or for any other prior defaults or breaches of such sublessor under
such sublease.
(iii) Any matter or thing requiring the consent of the
sublessor under a sublease shall also require the consent of Landlord herein.
(iv) No sublessee shall further assign or sublet all or
any part of the Premises without Landlord's prior written consent in accordance
with Paragraph 14(a) of this Lease.
(d) RECAPTURE OF THE LEASE; EXCESS RENT. In addition to the
Rent and all monetary sums normally payable to Landlord by Tenant hereunder,
Tenant agrees to further pay to Landlord, fifty percent (50%) of all rents and
moneys received by Tenant from its permitted sublease or assignment in excess of
the rent and moneys Tenant is obligated to pay to Landlord. Landlord further
has the right to recapture the Lease and the Premises (except in the case of a
Permitted Transfer made in accordance with Paragraph 14) upon the consummation
of a sublease or assignment of 100% of the then remaining estate provided that
Landlord elects such right to recapture by providing written notice to Tenant
with 30 days following written notice from Tenant of such sublease or
assignment. Except as to a Permitted Transfer made in accordance with Paragraph
14, any sublease or assignment permitted herein shall automatically terminate
Tenant's option(s), if any, to extend the term of this Lease and Tenant's
options under Paragraphs 35.1 and 35.2, and no such options shall not be
available to any such assignee, sublessees or other transferee.
15. TERMINATION/DEFAULT.
(a) Tenant agrees that if, at any time during the Term, (i)
Tenant shall be in default in the payment of any Basic Rent or Additional Rent
or other sums due under this Lease when the same are due and payable, where such
default continues for a period of three business days following written notice
thereof by or on behalf of Landlord; or (ii) Tenant shall neglect or fail to
perform or observe any of the other covenants contained in this Lease on
Tenant's part to be performed or shall have violated or breached any other
provision of this Lease, and shall not have remedied the same within fifteen
(15) days after written notice thereof given by Landlord PROVIDED, HOWEVER,
(except with respect to an unauthorized assignment or subletting that is not a
Permitted Transfer, or the failure by Tenant to provide (a) a Tenancy Statement,
(b) a requested subordination, or (c) any document requested under Paragraph 47
or any other documentation which Landlord may reasonably require of Tenant under
the terms of this Lease, including written evidence of Tenant's compliance with
Applicable Law) if the nature of the event is such that more than 15 days are
reasonably required for its cure, then it shall not be deemed a Default
22.
if Tenant commences such cure within such 15 days period and thereafter
diligently prosecutes such cure to completion; or (iii) any execution or
attachment shall be issued against Tenant and such execution or attachment shall
not be discharged within 60 days after levy or seizure thereunder; or (iv)
Tenant shall violate any provision of any of the insurance policies referred to
herein so that such policy shall be void or unenforceable in whole or in part
and Tenant shall not either xxxxx such violation and cause such policy to be
reinstated or procure other insurance in the same amount, which shall conform to
the provisions of Paragraph 10 hereof, and shall be enforceable; or (v) Tenant
shall in any way fail to perform and satisfy the requirements of any insurance
policy referred to herein; or (vi) there shall be filed against Tenant in any
court, pursuant to any statute either of the United States or of any state
thereof, a petition alleging bankruptcy or insolvency of Tenant, or for
reorganization of Tenant, or for the appointment of a receiver or trustee of all
or a portion of Tenant's property, and any such petition is not dismissed within
60 days after such filing, or any receiver or trustee so appointed is not
discharged within 60 days after such appointment, or any petition is filed by
Tenant, or Tenant makes an assignment for the benefit of creditors, or
substantially all of Tenant's assets located at the Premises or Tenant's
interest in this Lease are attached, executed on or otherwise judicially seized
where such seizure is not discharged within 30 days, or (vii) the abandonment of
the Premises; then, and in any one or more such events (each, a "Default"), then
without any further notice or demand, and without limiting the remedies of
Landlord hereunder, Landlord shall have the right to terminate the Lease, with
the same force and effect as though the date so specified were the date
hereinabove set forth as the date of the expiration of this Lease, and neither
Tenant nor any person claiming through or under Tenant by virtue of any statute
or order of any court or otherwise, shall be entitled to possession or to remain
in possession of the Premises, but shall forthwith quit and surrender the same.
In the event of such termination, Landlord may reenter the Premises and take
possession of the same by summary proceedings, reentry or otherwise, and remove
all persons and/or any property from the Premises without being liable to
indictment, prosecution or damages therefor, and without prejudice to any other
rights which it may have by reason of such breach, default, matter or condition.
(b) If Tenant fails to perform any of its affirmative
duties or obligations, within ten (10) days after written notice (or in case of
an emergency, without notice), Landlord may, at its option, perform such duty or
obligation on Tenant's behalf, including but not limited to the obtaining of
reasonably required bonds, insurance policies, or governmental licenses, permits
or approvals. The costs and expenses of any such performance by Landlord shall
be due and payable by Tenant upon receipt of invoice therefor. If any check
given to Landlord by Tenant shall not be honored by the bank upon which it is
drawn, Landlord, at its option, may require all future payments to be made by
Tenant to be by cashier's check. In the event of a Default, Landlord may, with
or without notice or demand, and without limiting Landlord in the exercise of
any right or remedy which Landlord may have by reason of such Default:
(i) Terminate Tenant's right to possession of the
Premises by any lawful means, in which case this Lease shall terminate and
Tenant shall immediately surrender possession to Landlord. In such event
Landlord shall be entitled to recover from Tenant: (i) the unpaid Rent which had
been earned at the time of termination; (ii) the worth at time of award of the
amount by which the unpaid rent which would have been earned after the
termination until the time of award exceeds the amount of such rental loss that
the Tenant proves
23.
could have been reasonably avoided; (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
the award exceeds the amount of such rental loss that the Tenant proves could be
reasonably avoided; and (iv) any other amount necessary to compensate Landlord
for all the detriment proximately caused by the Tenant's failure to perform its
obligations under this Lease or which in the ordinary course of things would be
likely to result therefrom, including but not limited to the cost of recovering
possession of the Premises, expenses of reletting, including necessary
renovation and alteration of the Premises, reasonable attorney's fees, and that
portion of any leasing commission paid by Landlord in connection with this Lease
applicable to the unexpired term of this Lease. The worth at the time of award
of the amount referred to in provision (iii) of the immediately preceding
sentence shall be computed by discounting such amount at the discount rate of
the Federal Reserve Bank of the District within which the Premises are located
at the time of the award plus one percent (1%). Efforts by Landlord to mitigate
damages caused by Tenant's Breach of this Lease shall not waive Landlord's right
to recover damages hereunder. If termination of this Lease is obtained through
the provisional remedy of unlawful detainer, Landlord shall have the right to
recover such proceeding unpaid Rent and damages as are recoverable herein, or
Landlord may reserve the right to recover all or any part thereof in a separate
suit. If a notice and grace period under the Paragraph 15(a) was not previously
given, a notice to pay rent or quit, or to perform or quit given to Tenant under
the unlawful detainer statute shall also constitute the notice required by
Paragraph 15. In such case, the applicable grace period required by Paragraph
15(a) and the unlawful detainer statute shall run concurrently, and the failure
of Tenant to cure any breach within the greater of the two such grace periods
shall constitute both an unlawful detainer and Default of this Lease entitling
Landlord to the remedies provided for in this Lease and/or by said statute.
(c) Continue the Lease and Tenant's right to possession
and recover the Rent as it becomes due, in which event Tenant may sublet or
assign, subject only to reasonable limitations. Acts of maintenance, efforts to
relet, and/or the appointment of a receiver to protect the Landlord's interests,
shall not constitute a termination of the Tenant's right to possession.
(d) Pursue any other remedy now or hereafter available
under the laws or judicial decisions of California. The expiration or
termination of this Lease and/or the termination of Tenant's right to possession
shall not relieve Tenant from liability under any indemnity provisions of this
Lease as to matters occurring or accruing during the term hereof or by reason of
Tenant's occupancy of the Premises. Mention in this Lease of any particular
remedy shall not preclude Landlord from any other remedy, in law or in equity
(including without limitation any remedy available under California Civil Code
Section 1951.4) and shall be cumulative with respect to all other available
remedies. Tenant hereby expressly waives any and all rights of redemption,
granted by or under any present or future laws in the event of Tenant being
evicted or dispossessed, or in the event of Landlord obtaining possession of the
Premises, by reason of the violation by Tenant of any of the covenants and
conditions of this Lease. Tenant hereby waives service of notice of intention
to reenter or to institute legal proceedings or dispossession proceedings.
Any sums which are not paid by Landlord or Tenant when same
shall become due and payable shall be paid to the other party with interest at a
rate per annum equal to
24.
the lesser of (i) two (2) percent over the rate per annum announced from time to
time by CHASE MANHATTAN BANK, N.A. of New York as its prime or base lending rate
or other equivalent rate (the "Default Interest Rate") or (ii) the maximum rate
allowable under applicable law.
(e) Landlord shall not be deemed to be in breach of this
Lease unless Landlord fails within a reasonable time to perform an obligation
required to be performed by Landlord. For purposes of this paragraph, a
reasonable time shall in no event be less than 30 days after receipt by Landlord
of written notice specifying such obligation of Landlord that has not been
performed: PROVIDED; HOWEVER, that if the nature of such obligation is such that
more than 30 days are reasonably required for its performance, then Landlord
shall not be in breach if performance is commenced within such 30 day period and
thereafter diligently pursued to completion.
16. INSPECTION BY LANDLORD. Subject to governmental or other security
regulations, Landlord by any duly authorized agent or representative shall have
access to the Premises and each and every part thereof at any and all reasonable
time or times during business hours to inspect the same for any purpose
including, without limitation of the foregoing, the determination of the
condition of the Premises or any part thereof, the progress of any work
undertaken by Tenant, and generally Tenant's performance of and compliance with
the terms and provisions of this Lease.
17. HOLD-OVER. Tenant shall, at the termination of this Lease by
lapse of time or otherwise yield up immediate possession to Landlord, and
failing so to do, it shall be deemed a tenant from month to month only, at a
monthly rental equal to 150% the rental paid by Tenant for the last preceding
month. In such event the rights, duties and obligations of Landlord and Tenant
shall be governed, except as to rent and duration of the term, by the provisions
of this Lease.
18. SUBORDINATION.
(a) This Lease is made subject to restrictions, covenants,
easements, encumbrances, reservations and rights of way, which may now or
hereafter affect the Premises. Tenant agrees, without the necessity of any
further consideration or action, to subordinate all of its right, title and
interest in and to this Lease to the lien of any mortgage or deed of trust now
or hereafter encumbering the Premises or any portion thereof, and to all
advances made or hereafter to be made upon the security thereof, PROVIDED,
HOWEVER, (i) that the beneficiary or beneficiaries of any such mortgages and/or
deeds of trust provide a written agreement delivered to Tenant to recognize all
of Tenant's right, title and interest in and to this Lease and not disturb
Tenant's possession or quiet enjoyment of the Premises as provided in this Lease
so long as Tenant is not in Default or breach of this Lease, (ii) that all terms
of such indebtedness, including, without limitation, the precise amount thereof
and the interest rate with respect thereto, shall be as determined solely by
Landlord and such beneficiary or beneficiaries, and (iii) Tenant within ten (10)
days after Landlord or such beneficiary or beneficiaries provides Tenant with
written notice to do so, or as soon thereafter as practicably possible, shall
execute and deliver to Landlord such documents and take such further action as
Landlord or such beneficiary or beneficiaries may deem necessary or advisable to
effect or maintain such subordination. Tenant also agrees that any mortgagee or
beneficiary may elect to have this Lease constitute a lien prior to its mortgage
25.
or deed of trust, and in the event of such election and upon notification by
such mortgagee or beneficiary to Tenant to that effect, this Lease shall be
deemed prior lien to such mortgage or deed of trust, whether this Lease is dated
prior to or subsequent to the date of said mortgage or deed of trust. In the
event any of Landlord's lenders require, as a condition to financing,
modifications to this Lease, then, provided such modifications do not materially
change Tenant's obligations hereunder, Tenant agrees to make reasonable
non-monetary modifications to this Lease as may be reasonably required by any
such lenders, and Landlord shall submit to Tenant a written amendment with such
required modifications which Tenant shall execute and return to Landlord within
ten (10) days after Tenant's receipt thereof; PROVIDED, HOWEVER, any
modification of any provision of this Lease directly relating to environmental
matters or Hazardous Substances or the rights and obligations of the Parties
directly relating thereto may not be made without Tenant's prior written
consent, which consent shall not be unreasonably withheld. If Tenant fails to
execute and return the same or object stating a reasonable basis for such
objection within said ten (10) day period, Tenant shall be deemed to have
consented for the purposes herein.
(b) Tenant agrees that (i) upon delivery to Landlord of the
written election of the beneficiary or beneficiaries of any encumbrance
affecting the Premises which is superior to this Lease, that such encumbrance
shall be deemed subordinate to this Lease, (a) this Lease shall, without the
necessity of any further consideration or action whatsoever, be deemed superior
to such encumbrance, whether this Lease was executed before or after the
execution of such encumbrance, and (b) the beneficiary or beneficiaries of such
encumbrance shall have the same rights with respect to this Lease as if this
Lease had been executed and delivered prior to execution and delivery of such
encumbrance and had thereafter been assigned to such beneficiary or
beneficiaries and (ii) if, by reason of Landlord's default under any encumbrance
now or hereafter affecting the Premises in any way, any or all of Landlord's
interest in and to the Premises is terminated, Tenant (a) shall waive all rights
at law or in equity now or hereafter in effect to terminate this Lease and
surrender possession of the Premises, shall attorn to the transferee (whether by
foreclose, judicial or trustees' sale deed in lieu of foreclosure or otherwise)
of any or all of Landlord's interest in or to the Premises, and shall recognize
such transferee and its transferees as the Landlord under this Lease, provided
and only if such transferee and any and all of its transferees, in writing to be
delivered to Tenant, recognize Tenant under all of the terms of this Lease and
agree in writing not to disturb Tenant's possession or quiet enjoyment of the
Premises as provided in this Lease so long as Tenant is not in default or breach
of this Lease, and (b) shall execute and deliver to Landlord and to such
transferee and its transferees within ten (10) days after Landlord, such
transferee or its transferees, provides Tenant with written notice to do so, or
as soon thereafter as practicably possible, such documents and take such further
action as Landlord, such transferee and its transferees may deem necessary or
advisable to effect or maintain such attornment.
(c) Effective as the Commencement Date of this Lease, Landlord
represents and warrants to Tenant that Landlord has fee title to the Premises,
the improvements thereon and the land of which the Premises are a part.
(d) The agreements contained in this Paragraph 18 shall be
effective without the execution of any further documents; PROVIDED, HOWEVER,
that, upon written request from Landlord or a lender in connection with a sale,
financing or refinancing of the Premises, Tenant
26.
and Landlord shall execute such further writings as may be reasonably required
to separately document any such subordination or non-subordination, attornment
and/or non-disturbance agreement as is provided for herein.
19. INDEMNIFICATION. Except to the extent attributable to Landlord's
default under this Lease and/or the gross negligence or willful misconduct of
Landlord or its agents, Tenant agrees to indemnify, defend and save harmless
Landlord against and from any and all claims by or on behalf of any person, firm
or corporation arising from the use, occupancy, conduct or management of or from
any work or thing whatsoever done in or about the Premises, arising or accruing
from and after the Commencement Date (but excluding these matters which are (i)
Landlord's responsibility under Paragraph 34 (ix)(B) and (ii) those matters
excluded from Tenant's indemnity under clause z of Paragraph 34 (ix)(A)) and
will further indemnify, defend and save Landlord harmless against and from any
and all claims arising or accruing during the Term of this Lease from any
condition of the Premises or any street, curb or sidewalk adjoining the
Premises, or of passageways or spaces therein or appurtenant thereto, or arising
from any act of Tenant, or any of its agents, contractors, servants, employees
or licensees, or arising from any accident, injury or damage whatsoever to any
person, firm or corporation occurring during the Term of this Lease, in or about
the Premises, or upon the sidewalks and land adjacent thereto, and from any
breach or default on the part of Tenant in the performance of any covenant or
agreement on the part of Tenant to be performed, pursuant to the terms of this
Lease; and from and against all costs, counsel fees, expenses, liabilities
incurred in or related to any of the foregoing; and in case any action or
proceeding be brought against Landlord by reason of any such claim, Tenant upon
notice from Landlord covenants to resist or defend such action or proceeding by
counsel reasonably satisfactory to Landlord.
Tenant is fully familiar with the physical condition of the
Premises, the buildings, improvements, fixtures and equipment thereof. Landlord
has made no representations of whatever nature in connection with the condition
of the Premises or of the buildings, improvements, fixtures or equipment thereof
and the Landlord shall not be liable for any latent or patent defects therein.
Tenant covenants and agrees to pay, and to indemnify Landlord
against, all legal costs and charges, including counsel fees, lawfully and
reasonably incurred in obtaining possession of the Premises after default of
Tenant or upon expiration or earlier termination of the term of this Lease, or
in enforcing any covenant or agreement of Tenant herein contained. Tenant's
obligations under this paragraph 19 shall survive any expiration or termination
of this Lease.
20. QUIET ENJOYMENT. Landlord for itself and Landlord's successors
and assigns covenants with Tenant that upon performing the covenants hereunder
on its part to be performed and subject to the provisions of this Lease, Tenant
shall and may peaceably and quietly have, hold and enjoy the Premises without
let or hindrance of any person claiming by, through or under Landlord.
21. REMEDIES CUMULATIVE. No remedy or election given by any provision
in this Lease shall be deemed exclusive unless so indicated, but each shall
wherever possible be cumulative with all other remedies in law or equity, except
as otherwise specifically provided.
27.
22. WAIVER: AMENDMENT. A waiver by Landlord or Tenant of any default
or breach by the other party of any covenant or covenants of this Lease shall be
limited to the particular instance and shall not operate or be deemed as a
waiver of any future defaults or breaches of said covenant or covenants. This
Lease may be modified only in writing, signed by the parties in interest at the
time of modification.
23. NOTICES. All notices and formal requests or demands required or
appropriate hereunder shall be in writing and personally delivered or sent by
registered or certified mail and shall be deemed to have been served or given
when personally delivered or enclosed in a properly sealed and addressed
envelope or wrapper, and deposited postage prepaid in a post office, branch post
office, or post office box regularly maintained by the United States Government.
Notices to Landlord shall be delivered or addressed to it at Teledyne
Industries, Inc., 0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx
00000, Attention: Corporate Real Estate Director or to such other person and
place as Landlord may from time to time designate in writing, and notices to
Tenant shall be delivered or addressed to Tenant at CLONTECH Laboratories, Inc.,
0000 Xxxx Xxxxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx 00000, Attention: President, or
to such other person or place as Tenant may from time to time designate in
writing.
24. DEFINITION OF TENANT'S PROPORTIONATE SHARE. Whenever used in this
Lease, the term "Tenant's Proportionate Share" shall mean Landlord's total costs
for such item or items multiplied by a fraction, the numerator of which shall be
the floor area of the Building within the Premises and the denominator of which
shall be the floor area of the Building, whether within or without the Premises.
25. SUCCESSORS AND ASSIGNS. Subject to the provisions of Paragraph 14
hereof, this Lease shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns.
26. SIGNS. Tenant shall not place any signs upon the Premises, except
that Tenant may, with Landlord's prior written consent, install (but not on the
roof) such signs as are reasonably necessary to advertise Tenant's own business.
The installation of any sign on the Premises by or for Tenant shall be subject
to the provisions of Paragraph 7. Unless otherwise expressly agreed herein,
Landlord expressly reserves all rights to the use of the roof and the right to
install (and all revenues therefrom) such advertising signs on the Premises,
including the roof, as do not unreasonably interfere with the conduct of
Tenant's business.
27. PARAGRAPH HEADINGS. The paragraph headings inserted in this Lease
are for convenience only and are not intended to and shall not be considered to
limit, enlarge or affect the scope or intent of this Lease nor the meaning of
any provision hereof.
28. USE. Tenant is hereby given the privilege of using the Premises
for general office, research, development and production (including temporary
storage of raw material inventory), shipping and receiving of biological and
medical products and supplies for molecular biologists and related uses thereto,
and for no other purpose. At all times during the Term, Tenant's use of the
Premises shall be as permitted by and in conformity with all applicable zoning,
building and other ordinances and laws, including, without limitation, all
environmental
28.
laws (and all rules, orders and regulations issued pursuant thereto) and in
conformity with all applicable restrictions and conditions of record and for no
other purpose or purposes.
29. FURTHER ASSURANCES. The parties shall execute such further
documents and instruments and shall take or cause to be taken such further
action as either party shall reasonably request from time to time in order to
effectuate the terms and conditions of this Lease.
30. LIMITATION OF LANDLORD'S LIABILITY. If Landlord shall fail to
perform or observe any term, covenant, condition or obligation required to be
performed or observed by it under this Lease and if Tenant shall, as a
consequence thereof, recover a money judgment against Landlord, Tenant agrees
that it shall look solely to Landlord's right, title and interest in and to the
Building and Land for the collection of such judgment and Tenant further agrees
that no other assets of Landlord shall be subject to execution, levy or other
process for the satisfaction of Tenant's judgment, and that in no event shall
Landlord be liable for any deficiency or punitive, consequential or incidental
damages of any type or nature.
31. LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS. Tenant covenants
and agrees that if it shall at any time fail to make any payment or perform any
other act on its part to be made or performed as in this Lease provided, then
Landlord may, but shall not be obligated so to do, and with due notice to or
demand upon Tenant, and without waiving or releasing Tenant from any obligations
of Tenant in this Lease contained, may make any such payment or perform any
other act on the part of Tenant to be made and performed as in this Lease
provided, in such manner and to such extent as Landlord may reasonably deem
desirable, and in exercising any such rights to pay necessary and incidental
costs and expenses, employ counsel and incur and pay reasonable attorney's fees.
All sums so paid by Landlord and all necessary and incidental costs and expenses
in connection with the performance of any such act by Landlord, together with
interest thereon at the Default Interest Rate from the date of the making of
such expenditure by Landlord, shall be deemed Additional Rent hereunder and,
except as otherwise in this Lease expressly provided, shall be payable to
Landlord on demand or at the option of Landlord may be added to any rent then
due or thereafter becoming due under this Lease, and Tenant covenants to pay any
such sum or sums with interest as aforesaid and Landlord shall have (in addition
to any other right or remedy of Landlord) the same rights and remedies in the
event of the non-payment thereof by Tenant as in the case of default by Tenant
in the payment of Rent. Whenever reasonably practicable, Landlord, before
proceeding as provided in this Paragraph, shall give Tenant notice in writing of
the failure of Tenant that Landlord proposes to remedy, and shall allow to
Tenant such length of time as may be reasonable in the circumstances, not
exceeding fifteen (15) days from the giving of the notice (unless such default
cannot be reasonably cured within said fifteen (15) day period, in which event,
if Tenant shall commence within said fifteen (15) day period and thereafter
prosecute with diligence the curing of such default, said fifteen (15) day
period shall be extended for such reasonable length of time as may be required
to enable Tenant to cure such default) to remedy the failure itself and if the
Tenant shall not remedy the failure in the time so allowed, the Landlord may
proceed as provided in this Paragraph; PROVIDED, HOWEVER, that nothing in this
sentence shall prevent the Landlord's effecting forthwith any insurance coverage
required to be and not effected by Tenant or Landlord's paying any premiums
therefor in time to prevent the cancellation or lapse of any such coverage in
force, or any actions of Landlord in connection with any emergency or immediate
threat to persons or property. Nothing contained in this
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Paragraph shall impose upon Landlord a duty to take action under any
circumstances, or liability for any such action taken.
32. ENTIRE AGREEMENT: SEVERABILITY. This Lease, and the schedules and
exhibits attached hereto shall be deemed to contain all of the terms and
conditions agreed upon between the parties with respect to the subject matter
hereof, it being understood that there are no outside representations or
agreements. The invalidity of any provision in this Lease, as determined by a
court of competent jurisdiction, shall in no way affect the validity of any
other provision hereof.
33. DISCLAIMER OF WARRANTIES. EXCEPT AS SPECIFICALLY SET FORTH IN
THIS LEASE, LANDLORD SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY OR
REPRESENTATION, ORAL OR WRITTEN, PAST OR PRESENT, EXPRESS OR IMPLIED, INCLUDING,
BUT NOT LIMITED TO, ANY WARRANTY OR REPRESENTATIONS AS TO THE CONDITION,
QUALITY, SAFETY, FREEDOM FROM DEFECTS (WHETHER OR NOT DETECTABLE BY INSPECTION),
MERCHANTABILITY, FITNESS FOR TENANTS INTENDED USE OR ANY OTHER PARTICULAR
PURPOSES OR AS TO THE AVAILABILITY OR EXISTENCE OF ANY UTILITY OR OTHER
GOVERNMENTAL OR PRIVATE SERVICES OR AS TO THE AMOUNT OF TAXES ASSESSED TO THE
PROPERTY. TENANT ACKNOWLEDGES THAT TENANT HAS HAD AN OPPORTUNITY TO EXAMINE THE
PROPERTY AND IS LEASING THE PROPERTY BASED SOLELY ON ITS OWN INDEPENDENT
INVESTIGATIONS AND FINDINGS AND NOT IN RELIANCE ON ANY INFORMATION PROVIDED BY
LANDLORD OR LANDLORD'S AGENTS OR CONTRACTORS. THE PREMISES ARE BEING LEASED "AS
IS", "WHERE IS" AND "WITH ALL FAULTS" AS OF THE COMMENCEMENT DATE, WITHOUT ANY
REPRESENTATION OR WARRANTY WHATSOEVER AS TO CONDITION, FITNESS FOR ANY
PARTICULAR PURPOSE, FREEDOM FROM CONTAMINATION BY HAZARDOUS SUBSTANCES,
COMPLIANCE WITH ZONING OR OTHER LEGAL REQUIREMENTS OF ALL OR ANY PART OF THE
PREMISES, MERCHANTABILITY OR ANY OTHER WARRANTY, EXPRESS OR IMPLIED. TENANT AND
LANDLORD AGREE THAT LANDLORD HAS ONLY LIMITED KNOWLEDGE OF THE CONDITION OF THE
PREMISES. LANDLORD HAS MADE NO AGREEMENT TO ALTER, REPAIR OR IMPROVE ANY OF THE
PREMISES.
34. ENVIRONMENTAL CONDITION OF PROPERTY.
(a) CERTAIN ENVIRONMENTAL DISCLOSURES. Tenant hereby
acknowledges that it has reviewed the disclosures contained on Exhibit C,
attached hereto, with respect to certain conditions on the Premises and certain
surrounding areas.
(b) CERTAIN OBLIGATIONS REGARDING HAZARDOUS SUBSTANCES.
(i) CERTAIN DEFINITIONS.
(A) The term "HAZARDOUS SUBSTANCES" shall mean
any product, substance, chemical, material or waste whose presence, nature,
quantity and/or intensity of existence, use, manufacture, disposal,
transportation, spill, release or effect, either by itself or
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in combination with other materials expected to be on the Premises, is either:
(i) potentially injurious to the public health, safety or welfare, the
environment or the Premises, (ii) regulated or monitored by any governmental
authority, or (iii) a basis for liability of Landlord to any governmental agency
or third party under any applicable statute or common law theory. Hazardous
Substance shall include, but not be limited to, hydrocarbons, petroleum,
gasoline, crude oil or any products or fractions thereof.
(B) The term "APPLICABLE LAW" shall mean all
laws, rules, regulations, ordinances, directives, covenants, easements and
restrictions of record, permits, the requirements of any applicable fire
insurance underwriter or rating bureau, and the recommendations of Landlord's
engineers and/or consultants, relating to in any manner to the Premises
(including but not limited to matters pertaining to (i) industrial hygiene, (ii)
environmental conditions on, in, under or about the Premises, including soil and
groundwater conditions, and (iii) the use, generation manufacture, production,
installation, maintenance, removal, transportation, storage, spill or release of
any Hazardous Substance or storage tank), now in effect or which may hereafter
come into effect, and whether or not reflecting a change in policy from any
previously existing policy. Tenant shall, within five (5) business days after
receipt of Landlord's written request, provide Landlord with copies of all
documents and information, including, but not limited to, permits,
registrations, manifests, applications, reports, and certificates, evidencing
Tenant's compliance with any Applicable Law specified by Landlord, and shall
immediately upon receipt, notify Landlord in writing (with copies of any
documents involved) of any threatened or actual claim, notice, citation,
warning, complaint or report pertaining to or involving failure by Tenant or the
Premises to comply with any Applicable Law.
(C) The term "LOSSES" shall mean any and all
costs and expenses (including, but not limited to, reasonable attorneys' fees),
damages and other losses actually incurred by the party seeking indemnification.
(D) The term "CLAIM OF LIABILITY" shall mean any
and all claims, liabilities, obligations, injuries, Losses or damages suffered
or incurred as a result of (i) any suit, action, legal or administrative
proceeding (including any investigation), or demand asserted, threatened or
instituted by any party, and including but not limited to any governmental
agency or authority, (ii) failure to comply with requirements imposed by all
federal, state and local environmental laws and regulations, including but not
limited to all costs of investigation, remediation or costs otherwise incurred
in complying with applicable laws and regulations and (iii) any and all
judgments, liens, court costs, legal fees, expert witness fees, consultants'
fees, and other costs of discovery and defense, all net of any insurance
proceeds to which the party seeking indemnification is entitled by virtue of
such claim, liability, obligation, loss or damage.
(E) The term "REPORTABLE USE" shall mean (i) the
installation of use of any above or below ground storage tank, (ii) the
generation, possession, storage, use, transportation, or disposal of a Hazardous
Substance that requires a permit from, or with respect to which a report,
notice, registration or business plan is required to be filed with, any
governmental authority. Reportable Use shall also include Tenant's being
responsible for the presence in, or about the Premises of a Hazardous Substance
with respect to which any
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Applicable Law requires that a notice be given to persons entering or occupying
the Premises or neighboring properties.
(ii) HAZARDOUS SUBSTANCES USED BY TENANT. The parties
acknowledge that, during the Term of the Lease, Tenant may use, but may not
generate, produce, treat or dispose of, certain limited types and quantities of
Hazardous Substances on the Premises in accordance with the provisions of this
Paragraph 34; PROVIDED, HOWEVER, that in no event shall Tenant install any
chemical storage tanks on the Premises. These Hazardous Substances, along with
their quantitative limits, as of the Commencement Date are listed in Exhibit D
hereto. Tenant shall provide Landlord no less frequently than every year
(commencing with the Commencement Date) written notification of the ordinary and
customary Hazardous Substances and quantities which Tenant uses, generates,
produces, treats or disposes of on or from the Premises, which notice shall, so
long as the nature of Tenant's business has not changed from that conducted at
the Commencement Date, constitute an amended Exhibit D for the purposes of this
Lease, from and after the date of such notification. So long as Tenant complies
with all other provisions of this Lease and notifies Landlord of Tenant's use in
Tenant's annual amended Exhibit D hereunder, Tenant shall be entitled to use
Hazardous Substances described in and subject to the limitations of clause (ii)
of Paragraph 34(b)(ii), below. Promptly following receipt by Tenant, Tenant
shall provide Landlord with copies of periodic agency hazardous materials, fire
department and water quality inspection reports, and Tenant shall promptly
provide Landlord with copies of hazardous materials collection reports that are
reported to the California Environmental Protection Agency, notwithstanding the
foregoing in this paragraph 34(b)(ii).
(iii) OTHER HAZARDOUS SUBSTANCES. Except as to those
Hazardous Substances listed in Exhibit D in the limited quantities set forth in
Exhibit D, and such Hazardous Substances as are (i) intended for and used for
normal building cleaning, maintenance and repair, and (ii) ordinary and
customary Hazardous Substances and quantities for the nature of business
conducted by Tenant at the Commencement Date (with the parties' acknowledgment
that the specific kinds of Hazardous Substances Tenant uses in the conduct of
its business may change from time to time), Tenant shall not use, generate,
produce, store, bring upon, treat or dispose of any Hazardous Substance on the
Premises without the prior written consent of the Landlord. With regard to
other Hazardous Substances, whether in type or quantity limits, that Tenant
proposes to use on the Premises, Landlord shall, taking into account such
factors as relevant, promptly grant or withhold consent to the proposed use of
such Hazardous Substances in the quantities proposed. In addition, Landlord may
condition its consent to the use or presence of any Hazardous Substance by
Tenant upon Tenant's giving Landlord such additional assurances as Landlord, in
its sole discretion, deems necessary to protect itself, the public, the
Premises, and the environment against damage, contamination or injury and/or
liability therefrom or therefor, including, but not limited to, the installation
(and removal on or before Lease expiration or earlier termination) of reasonably
necessary protective modifications to the Premises and/or the deposit of a
reasonable additional Security Deposit (as defined in Paragraph 38 of the
Lease).
(iv) APPLICABLE LAWS. Any handling, use, containment, or
storage by Tenant of Hazardous Substances on the Premises (whether or not such
use is identified on Exhibit D or is otherwise consented to by Landlord), and
Tenant's conduct of its business at the
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Premises, shall be conducted in compliance with all Applicable Laws and the best
industry practice.
(v) RELEASE OF SUBSTANCES. Tenant shall not cause any
Hazardous Substance to be spilled, discharged or released in, on, under or about
the Premises or allow any Hazardous Substance to be spilled, discharged or
released in, on or under the Premises; PROVIDED, HOWEVER, that Tenant shall not
be responsible pursuant to this provision (A) for conditions on or about the
Premises with respect to the Hazardous Substances conditions disclosed in
Exhibit C pertaining to the Superfund remediation described therein (the
"Superfund Remediation"), except to the extent conditions are caused, aggravated
or contributed to by Tenant, or (B) for Hazardous Substances spilled, discharged
or released by Landlord.
(vi) OTHER RESTRICTIONS. Tenant shall not engage in any
activity in, on or about the Premises which constitutes a Reportable Use of
Hazardous Substances without prior written notification to Landlord and
compliance in a timely manner (at Tenant's sole cost and expense) with all
Applicable Law. Tenant shall not cause or allow on the Premises: (A) any
concrete vaults, sumps or containment channels to be used as primary containment
for any liquid containing Hazardous Substances or as secondary containment for
any volatile organic compounds; (B) installation of any underground storage
tanks; or (C) any activity requiring a hazardous waste treatment, storage or
disposal permit under the federal Resource Conservation and Recovery Act or the
California Health and Safety Code Div. 20, Chapter 6.5 (Hazardous Waste
Control).
(vii) DUTY TO INFORM LANDLORD: DUTY TO MONITOR.
(A) If Tenant knows, or has reasonable cause to
believe that a Hazardous Substance, or a condition involving or resulting from
same ("Hazardous Substances Condition"), has come to be located in, on, under or
about the Premises, other than as previously consented to by Landlord, Tenant
shall immediately give written notice of such fact to Landlord. Tenant shall
also immediately give Landlord a copy of any statement, report, notice,
registration, application, permit, business plan, license, claim, action or
proceeding given to, or received from, any governmental authority or private
party, or persons entering or occupying the Premises, concerning the presence,
spill, release, discharge of or exposure to, any Hazardous Substance or
contamination in, on, or about the Premises, including, but not limited to all
such documents as may be involved in any Reportable Uses involving the Premises.
Tenant shall immediately upon receipt notify Landlord in writing of the
existence of any matter that constitutes a Claim of Liability. In addition,
Tenant shall immediately notify Landlord of and provide a copy of the following
environmental reports or inquiries relating to the Premises: citations,
environmental inquiries, reports filed pursuant to any environmental reporting
requirements imposed by any Applicable Law, including reports filed pursuant to
any Applicable Law relating to underground tanks. Tenant will furnish to
Landlord a copy of any and all environmental reports, correspondence or
inquiries relating to the Premises, including but not limited to all permit
applications, permits and reports, as well as reports concerning conditions on
the Premises, including those which may be characterized as confidential.
(B) Tenant covenants that it shall actively and
diligently monitor all aspects of its operations and activities (and those of
its agents, contractors,
33.
subcontractors, employees or invitees) which involve in any way the use,
production, generation or other handling of Hazardous Substances on the
Premises. Tenant shall advise Landlord's designated in-house technical
representative of any material changes in operations involving Hazardous
Substances.
(viii) TERMINATION. In addition to its rights under
Paragraph 15 of the Lease:
(A) Landlord shall have the option of terminating
this Lease if at any time Tenant has failed to comply with any of its
obligations under this Paragraph 34; PROVIDED, HOWEVER, that Tenant's
obligations under this Paragraph 34(b)(ix), below, shall survive such
termination of this Lease.
(B) Intentionally omitted.
(ix) INDEMNIFICATION.
(A) TENANT'S INDEMNIFICATION. Tenant shall
indemnify, defend and hold Landlord, its directors, officers, employees, agents,
lenders, successors and assigns harmless from and against any Claim Of Liability
asserted against Landlord or any of the foregoing indemnified parties which
results from, relates to, or arises out of (i) a breach by Tenant of its
obligations under this Paragraph 34, or (ii) the presence of Hazardous
Substances at or on the Premises (whether or not that substance is listed on
Exhibit D or Landlord's consent was given to the use of such substance at the
Premises) during the Term of the Lease (except for (x) such Hazardous Substances
(excluding asbestos) present at or on the Premises at the Commencement Date; (y)
underground migration of any Hazardous Substances to the Premises from adjacent
properties; and (z) Hazardous Substances Conditions at or on the Premises
arising from the activities of Telcom Universal, Inc. in crossing the Premises
or common areas to its premises adjacent to the Premises (PROVIDED HOWEVER,
Tenant shall provide Landlord with immediate notice of any such activity of
which Tenant becomes aware that results in the presence of Hazardous Substances
or a Hazardous Substances Condition at or on the Premises)), or (iii) which
results from, relates to, or arises out of any adverse environmental conditions
or Hazardous Substance Conditions that were caused, aggravated or contributed to
by Tenant or Tenant's agents, employees, invitees, contractors or
subcontractors.
(B) LANDLORD INDEMNITY/SUPERFUND REMEDIATION. As
between, Landlord and Tenant, Landlord shall be responsible for remediation in
accordance with Applicable Laws for the Superfund Remediation as such Superfund
Remediation affects the Premises, except to the extent of any adverse
environmental conditions or Hazardous Substance Conditions that were caused,
aggravated or contributed to by Tenant or Tenant's, agents, employees, invitees,
contractors or subcontractors. Landlord shall indemnify, defend and hold
Tenant, its directors, officers, employees, agents, lenders, successors and
assigns harmless from and against any Claim Of Liability asserted against Tenant
or any of the foregoing indemnified parties which results from, relates to, or
arises out of the presence of Hazardous Substances (excluding asbestos) at or on
the Premises on the Commencement Date.
34.
(C) SURVIVAL OF INDEMNITIES. The provisions of
this Paragraph 34(b)(ix) shall survive the earlier termination or expiration of
this Lease. No termination, cancellation or release agreement entered into by
Landlord and Tenant shall release Tenant from its obligations under this Lease
with respect to Hazardous Substances, unless specifically so agreed by Landlord
in writing at the time of such agreement.
(D) DAMAGES. Notwithstanding anything to the
contrary elsewhere in this Lease, no party (or its affiliates) shall, in any
event, be liable to any other party or other indemnified person for
consequential damages, including, but not limited to, loss of revenue or income,
cost of capital, or loss of business reputation or opportunity; PROVIDED,
HOWEVER, Landlord shall in any event be entitled to recover lost rents which
shall not be deemed consequential damages for the purposes herein. Without
limitation, the preceding sentence (other than the proviso) shall not apply to
damages sought to be recovered by a third party (other than an indemnified
person) against such other party or such other indemnified person.
(E) LEGAL PROCEEDINGS AND REMEDIAL ACTIONS. If a
Claim Of Liability:
(i) involves or requires legal defense,
Landlord shall, subject to Tenant's approval, which approval shall not be
unreasonably withheld, designate the person or persons who shall negotiate with
the appropriate government agencies or other third-parties to settle any related
claim; if no settlement is reached, Landlord shall, at its option, control such
legal defense as it deems necessary and appropriate and Tenant shall not
undertake to separately defend any such related claim.
(ii) involves or requires remedial action,
Landlord shall, at its option, determine and control any and all such actions,
of whatever kind and nature, Landlord shall deem necessary or appropriate to
comply with Applicable Laws and to correct any adverse environmental conditions
caused by the presence of Hazardous Substances on the Premises; PROVIDED,
HOWEVER, that to the extent reasonably practicable, Landlord shall control such
remedial action in such a way as to be cost-effective and to minimize
interference with Tenant's operations.
(x) Landlord, at its option, may
require Tenant, at Tenant's sole expense, to retain a qualified environmental
consultant, selected by Tenant and approved by Landlord, which approval shall
not be unreasonably withheld, to perform an environmental audit and assessment
of the premises at the end of the Lease Term or upon early termination of the
Lease. If such environmental audit and assessment indicates the presence of an
adverse environmental condition or Hazardous Substance Condition that was caused
or created by Tenant or that was caused by the presence of Hazardous Substances
during the Lease Term, Landlord at Tenant's sole expense, may retain a
consultant(s), selected by Landlord and approved by Tenant, which approval shall
not be unreasonably withheld, to identify and undertake, in a cost-effective
manner, the remedial action necessary and appropriate to correct such adverse
environmental condition or Hazardous Substance Condition; PROVIDED, HOWEVER,
that if such adverse environmental or Hazardous Substance Condition was caused
or created by the Landlord or was caused by the presence of Hazardous Substances
prior to the Lease Term, the Tenant shall not be required to pay the expenses
for the identification or undertaking of any
35.
remedial action that the Landlord, at its option, may determine is necessary or
appropriate to correct such adverse environmental condition or Hazardous
Substance Condition.
(xi) Landlord and Landlord's lender
shall have the right to enter the Premises at any time, in the case of an
emergency, and otherwise at reasonable times, for the purpose of inspecting the
condition of the Premises and for verifying compliance by Tenant with this Lease
and all Applicable Laws, and to employ experts and/or consultants in connection
therewith and/or to advise Landlord with respect to Tenant's activities,
including but not limited to the installation, operation, use, monitoring,
maintenance or removal of any Hazardous Substance or storage tank on or from the
Premises. The costs and expenses of any such inspections shall be paid by the
party requesting same, unless a default or breach of this Lease, violation of
Applicable Law, or a contamination, caused or materially contributed to by
Tenant is found to exist or be imminent, or unless the inspection is requested
or ordered by a governmental authority as the result of any such existing or
imminent violation or contamination. In any such case, Tenant shall upon
request reimburse Landlord or Landlord's lender, as the case may be, for the
costs and expenses of such inspections.
35. OPTION TO RENEW.
(a) GRANT OF OPTION. In the event that Tenant is not in
Default and not in breach (unless such breach is cured within the applicable
cure period under this Lease and in no event later than the Option Expiration
Date) hereunder, Tenant shall have two, successive options (the "Renewal
Options"), the first commencing on the expiration of the Term and the second
commencing on the expiration of the Term as extended by the first Renewal
Option, to renew the Term of this Lease for an additional five (5) years each
upon the same terms, covenants and conditions provided herein, with the
exception of Basic Rent which shall be deemed to be the fair market rental value
of the Premises, on the terms and conditions set forth in below. Upon valid
exercise of a Renewal Option and renewal hereunder, "Term" as used in this Lease
shall include the Renewal Term (as defined below) pertaining to such Renewal
Option.
The Renewal Options granted to Tenant are personal to the original
Tenant named herein and cannot be voluntarily or involuntarily assigned or
exercised by any person or entity other than said original Tenant. The Renewal
Options herein granted to Tenant are not assignable, either as part of an
assignment of this Lease or separately or apart therefrom, and the Renewal
Option may not be separated from this Lease in any manner, by reservation or
otherwise.
(b) OPTION PROCEDURE. The following procedure shall be
followed with respect to any Renewal Option:
(i) If after exercising a Renewal Option and before the
commencement of the five-year renewal term of Lease ("Renewal Term"), Tenant is
in material default under this Lease, Landlord (without prejudice to any of its
other rights and remedies) may, at Landlord's option, nullify such Renewal
Option by exercise of its right to terminate this Lease. Tenant shall exercise
a Renewal Option by written notice to Landlord not later than twelve (12) months
prior to the expiration of the initial Term ("Option Expiration Date").
Exercise of the Renewal Option shall not be valid if this Lease shall otherwise
have terminated
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on or before the exercise of the Renewal Option. Also, any Renewal Option must
be exercised as to the entirety of the Premises, and the second Renewal Option
expires and is invalid if the first Renewal Option has not been duly executed
and Tenant is not in possession of the Premises at the conclusion of first
Renewal Term.
(ii) "Fair market rental value" shall mean the projected
going market rent of the Premises as of the commencement of the applicable
Renewal Term, taking into account the best and highest use of the Premises for a
non-renewing tenant permitted for its then current zoning classification and
location of the Premises.
Tenant shall notify Landlord in writing not later
than nine (9) months prior to the expiration of the initial Term if it desires
to negotiate the fair market rental value. The parties shall thereupon
negotiate in good faith in order to reach agreement; and in the event the
parties are unable to reach an agreement during the period that is not more than
nine (9) months and not less than six (6) months prior to the expiration date of
the initial Term, as the case may be, (the "Negotiation Period"), the
determination of fair market rental value shall be made by appraisal as provided
herein.
(iii) If the Landlord and the Tenant do not reach an
agreement as hereinabove provided, the fair market rental value shall be
determined pursuant to the procedure set forth herein and both parties will be
bound by such determination. The parties shall use their best efforts to
complete the appraisal process within sixty (60) days after the expiration of
the Negotiation Period and shall instruct their appraisers to do likewise.
(A) Each party shall within ten (10) days
following the expiration of the Negotiation Period, appoint a licensed,
disinterested M.A.I. Appraiser having substantial experience with comparable
buildings in the county where the Premises are located (a "Qualified Appraiser")
and give written notice of such appointment to the other. If either party fails
to notify the other of the appointment of its Qualified Appraiser within the
time period specified above, then the Qualified Appraiser appointed shall be the
sole appraiser to determine fair market rental value.
(B) It shall be a condition precedent to the
appointment of the Qualified Appraisers for the parties, that such Qualified
Appraisers shall have agreed on a third Qualified Appraiser with qualifications
similar to those required of the first two (2) Qualified Appraisers to act as
the third appraiser hereunder (and such third appraiser shall have agreed to act
in such capacity).
(C) In the event two (2) Qualified Appraisers are
chosen as herein provided, the Qualified Appraisers so chosen shall meet within
ten (10) business days after they are appointed as aforesaid, and, if within ten
(10) business days after such first meeting, the two (2) Qualified Appraisers
fail to come to a mutual determination as to the appropriate fair market rental
value, they themselves shall notify the third Qualified Appraiser. If such two
Qualified Appraisers agree, such agreement shall be the fair market rental
value.
(D) Within ten (10) days after said notice to the
third Qualified Appraiser, each of the three (3) Qualified Appraisers selected
shall state in writing his or her
37.
respective opinion as to the appropriate fair market rental value, supported by
the reasons therefor with counterpart copies to each party;
(E) The Qualified Appraisers shall arrange for a
simultaneous exchange of such determinations promptly in writing. The opinion
as to the fair market rental value which is the furthest from the middle value
shall be excluded and the fair market rental value for purposes hereof shall be
the average of the remaining two (2) opinions and shall constitute the decision
of the Qualified Appraisers; PROVIDED, HOWEVER, that if both other opinions are
equally distant in opposite directions from the middle value, the middle value
shall constitute the fair market rental value.
(F) In the event of a failure, refusal or
inability of any Qualified Appraiser to act, a successor shall be appointed by
the party who originally appointed the Qualified Appraiser, but in the case of
the third Qualified Appraiser, the third Qualified Appraiser's successor shall
be appointed in the same manner as provided for appointment of the third
Qualified Appraiser. Each party shall pay the fees and expenses of the party's
own Qualified Appraiser and shall share equally the fees and expenses of the
third Qualified Appraiser and all other expenses of the appraisal.
35.1 FIRST RIGHT TO NEGOTIATE FOR ADDITIONAL SPACE. If during
the Term of this Lease, additional space (with respect to the Premises) is
anticipated to become available for lease, which space is currently being leased
by another tenant of Landlord and not subject to any additional rights of such
tenant, Tenant shall have the first right to negotiate an expansion of the space
leased hereunder to include such additional space as set forth in this
paragraph. Landlord shall provide Tenant with notice of the existence of such
potentially leasable space at least 30 days prior to its availability. The
notice shall specify the terms on which Landlord shall be willing to lease such
space to Tenant. Tenant shall have the right to negotiate exclusively with
Landlord on such terms and conditions for such additional space during the 30
day period following Landlord's delivery of such notice. If written agreement
to lease such additional space is not reached between Landlord and Tenant within
such 30 day period, Landlord shall have the right to lease, use or otherwise
dispose of such additional space without any obligation to Tenant hereunder on
monetary terms not substantially more beneficial than that offered to Tenant.
Nothing hereunder shall supersede Landlord's right to retain such available
space and not to lease any such space to a third party.
35.2 RIGHT TO NEGOTIATE PURCHASE OF THE PREMISES.
(a) For so long as the Premises are part of a larger
undivided parcel of property, for the purposes of this Paragraph 35.2,
"Premises" shall refer solely to such entire parcel of property. Landlord will
not sell the Premises to any third person until Tenant has been given written
notice of Landlord's intent to sell the Premises. The notice given to Tenant
shall specify the price and terms of the contemplated sale; and Tenant shall
upon receipt of said notice have the exclusive right to negotiate to purchase
the Premises during the thirty (30) days next ensuing after receipt of said
notice, at the price and upon the terms contained in the notice. If Tenant
neglects or fails to take advantage of this right to negotiate to purchase the
Premises within said thirty (30) day period, then Landlord shall be at liberty
to sell the Premises to any third person upon any terms that Landlord so
desires, provided that the price is at or below
38.
fifteen (15%) of the price set forth in the aforementioned written notice, for
a period of up to one (1) year without any further obligation under this
Paragraph 35.2.
(b) If during the Term Landlord receives from any third
party an unsolicited bona fide offer to purchase the Premises at a price and
upon terms acceptable to Landlord, Landlord shall give written notice thereof to
Tenant, which notice shall include a copy of the offer to purchase; and Tenant
shall have fifteen (15) days thereafter in which to notify Landlord in writing
that it will purchase the Premises upon the same terms set forth in the notice
from Landlord. Failure of Tenant to so notify Landlord within fifteen (15) days
shall authorize Landlord to sell the Premises to said third party making the
offer on substantially the same terms and conditions as provided in said offer;
PROVIDED, HOWEVER, that Landlord may reduce the sale price for the Premises to
said third party by up to fifteen percent (15%) of the amount set forth in said
offer or increase such price. If the Premises is not sold to the party making
the offer, then Landlord shall give Tenant the same right to purchase the
Premises upon receiving any subsequent unsolicited bona fide offer from any
third party that is acceptable to Landlord. Notwithstanding anything to the
contrary provided herein, the rights granted to Tenant under this paragraph (b)
shall not apply to a sale with respect to which Landlord has given Tenant a
notice under paragraph (a) hereof, both Landlord and Tenant agreeing that
Tenant's rights with respect to such sale shall be governed solely by said
paragraph (a).
(c) Paragraph 35.2 shall not be applicable to a sale or
transfer of the Premises pursuant to a judicial or non-judicial foreclosure
sale, or pursuant to a deed-in-lieu of foreclosure sale. Moreover, Paragraph
35.2 shall be applicable solely to a sale by the party that is the Landlord as
of the Commencement Date.
36. BROKERS. The parties acknowledge that the real estate brokers for
this transaction are Renault & Xxxxxxx, representing Landlord, Xxxxx Xxxxxx
Associates, who is representing Tenant. Landlord shall pay the real estate
commission for this transaction as agreed upon between Landlord and Renault &
Xxxxxxx, with the understanding that Renault & Xxxxxxx will split the real
estate commission as agreed upon by Landlord and Renault & Xxxxxxx with Xxxxx
Xxxxxx Associates on a 50%/50% basis. Except as herein expressly set forth, the
parties acknowledge and agree that neither party has had any dealings with any
other broker or real estate agent so as to entitle such broker or real estate
agent to a commission due under this Lease and each party shall indemnify,
defend and hold harmless the other party from and against any such real estate
commission.
37. SEVERABILITY. The provisions of this Lease shall be severable.
The invalidity of any provision of this Lease as determined by a court of
competent jurisdiction shall in no way affect the validity of any other
provision hereof and this Lease shall be enforceable to the maximum extent under
law.
38. SECURITY DEPOSIT. Tenant shall deposit with Landlord on the
execution of this Lease a security deposit in the amount of $55,334.50 Dollars
(the "Security Deposit") as security for Tenant's faithful performance of
Tenant's obligations under this Lease. If Tenant fails to pay Basic Rent or
Additional Rent due hereunder, or otherwise defaults under this Lease, Landlord
may use, apply or retain all or any portion of said Security Deposit for the
payment of any amount due Landlord or to reimburse or compensate Landlord for
any liability, cost, expense,
39.
loss or damage (including attorneys' fees) which Landlord may suffer or incur by
reason thereof. If Landlord uses or applies all or any portion of said Security
Deposit, Tenant shall within ten (10) days after written request therefor
deposit moneys with Landlord sufficient to restore said Security Deposit to the
full amount required by this Lease. Landlord shall not be required to keep all
or any part of the Security Deposit separate from its general accounts.
Landlord shall, at the expiration or earlier termination of the Term and after
Tenant has vacated the Premises, return to Tenant (or, at Landlord's option, to
the last assignee, if any, of Tenant's interest herein) within fifteen (15)
days, that portion of the Security Deposit not used or applied by Landlord.
Unless otherwise expressly agreed in writing by Landlord, no part of the
Security Deposit shall be considered to be held in trust, to bear interest or
other increment for its use, or to be prepayment for any moneys to be paid by
Tenant under this Lease.
39. HAZARDOUS SUBSTANCE CONDITIONS. Except as otherwise set forth in
this Lease, to the extent any Hazardous Substance Condition is caused or
materially contributed to by Tenant, or pertains to or involves any Hazardous
Substance for which Tenant is responsible under this Lease, Tenant or, at
Landlord's option Landlord, shall make the investigation and remediation as
required by Applicable Law and Paragraph 34 of the Lease at Tenant's expense,
and this Lease shall continue in full force and effect, but subject to
Landlord's rights under Paragraph 34 of this Lease; PROVIDED, HOWEVER, that
Tenant shall not hereby become responsible for any Hazardous Substance to the
extent Tenant is not otherwise responsible therefor under Paragraph 34.
40. LANDLORD'S ACCESS; SHOWING PREMISES; REPAIRS. Landlord and
Landlord's agents shall have the right to enter the Premises at any time, in the
case of an emergency, at reasonable times upon twenty-four (24) hours' notice to
Tenant for the purpose of showing the same to prospective purchasers, lenders,
or lessees (but for potential lessees, only during the last nine months of the
Term or the extended Term, or if Tenant is otherwise in Default under the
Lease), and making such alterations, repairs, improvements or additions to the
Premises or the building of which they are a part, as Landlord may reasonably
deem necessary. Landlord may at any time place on or about the Premises or
building any ordinary "For Sale" signs and Landlord may at any time during the
last one hundred twenty (120) days of the term hereof place on or about the
Premises any ordinary "For Lease" signs. All such activities of Landlord shall
be without abatement of rent or liability to Tenant.
41. TENANCY STATEMENT. Tenant shall within ten (10) days after
written notice from Landlord execute, acknowledge and deliver to Landlord a
statement in writing in form similar to the then most current "Tenancy
Statement" form published by the American Industrial Real Estate Association,
plus such additional information, confirmation and/or statements as may be
reasonably requested by Landlord.
If Landlord desires to finance, refinance, or sell the Premises,
any part thereof, or the Building of which the Premises are a part, Tenant shall
deliver to any potential lender or purchaser designated by Landlord such
financial statements of Tenant as may be reasonably required by such lender or
purchaser, including but not limited to Tenant's financial statements for the
past three (3) years. All such financial statements shall be received by
Landlord and such lender or purchaser in confidence and shall be used only for
the purposes herein set forth.
40.
42. TIME OF ESSENCE. Time is of the essence.
43. CUMULATIVE REMEDIES. No remedy or election hereunder shall be
deemed exclusive but shall, wherever possible, be cumulative with all other
remedies at law or in equity.
44. CHOICE OF LAW. This Lease shall be governed and interpreted by
the laws of the State of California.
45. MERGER. The voluntary or other surrender of this Lease by Tenant,
or a mutual cancellation thereof, or a termination by Landlord, shall not work a
merger, and shall, at the option of Landlord, terminate all or any existing
subtenancies or may, at the option of Landlord, operate as an assignment to
Landlord of any or all of such subtenancies.
46. MULTIPLE TENANT PROPERTY. The Premises are part of a larger group
of buildings and land herein referred as to the "Property". Tenant agrees to
the rules and regulations attached hereto as Exhibit A-2. Tenant agrees that it
will abide by, keep and observe all reasonable rules and regulations which
Landlord may make from time to time for the management, safety, care and
cleanliness of the building and grounds, the parking of vehicles and the
preservation of good order therein as well as for the convenience of other
occupants and tenants of the Property; PROVIDED, HOWEVER, that such rules and
regulations do not conflict with the terms of this Lease (or materially
interferes with the permitted uses of the Premises under Paragraph 28), and in
the event of such a conflict the terms of this Lease shall govern.
47. EASEMENTS. Landlord reserves to itself the right, from time to
time, to grant such easements, rights and dedications that Landlord deems
necessary or desirable, and to cause the recordation of parcel maps and
restrictions, so long as such easements, rights, dedications, maps and
restrictions do not unreasonably interfere with the use of the Premises by
Tenant and taking into account Tenant's security requirements. Tenant shall
sign any of the aforementioned documents upon request of Landlord and failure to
do so shall constitute a material breach of this Lease.
41.
IN WITNESS WHEREOF, this Lease has been duly executed by Landlord and
Tenant as of the date first above written.
WITNESSES: LANDLORD:
TELEDYNE INDUSTRIES, INC.
By: By:
-------------------------------- --------------------------------
Print Name: Print Name:
------------------------ ------------------------
By: Its:
-------------------------------- -------------------------------
Print Name:
------------------------
WITNESSES: TENANT:
CLONTECH LABORATORIES, INC.
By: By: /s/ Xxx Xxxx
-------------------------------- --------------------------------
Print Name: Print Name: Xxxxxxx Xxxx, CEO
------------------------ ------------------------
By: Its: 4/30/97
-------------------------------- -------------------------------
Print Name:
------------------------
42.
EXHIBIT A-2
RULES AND REGULATIONS
At the Commencement Date, Landlord has not promulgated rules and regulations
under Paragraph 46. Landlord reserves the right to promulgate such rules and
regulations at a later date in accordance with such Paragraph 46.
1.
EXHIBIT B
ASBESTOS REMEDIATION TASKS
The items shown with "**" on the attached chart are incorporated by reference.
1.
TABLE I - SUMMARY OF KNOWN AND ASSUMED
ASBESTOS-CONTAINING MATERIALS AT
TELEDYNE, INC., 0000 XXXXX XXXXX XXXXXX
XXXXXXXX XXXX, XXXXXXXXXX
-------------------------------------------------------------------------------------------------
ESTIMATED
ACM TYPE ACM APPLICATIONS/LOCATIONS PERCENT ASBESTOS QUANTITY
(SQ. FT.)
-------------------------------------------------------------------------------------------------
1" by 1" Xxxx Women's Restroom West Side Tile: ND; Mastic: 2% Chrysotile 585
Ceramic Tile w/
Xxxxx Mastic
-------------------------------------------------------------------------------------------------
4" by 4" Men's Restroom, West Side Tile: ND; Mastic; 3% Chrysotile 140
Ceramic Tile
w/Dark Xxxxx
Mastic
-------------------------------------------------------------------------------------------------
Cement Panels Around Perimeter of Roof 15% Chrysotile 2,816
-------------------------------------------------------------------------------------------------
Flashing Shed Roof, Entrance Overhang 5-15% Chrysotile 2,700
Roofs and Main Roof
-------------------------------------------------------------------------------------------------
** White/Xxxx tape Roof Top-HVAC Units 2% Chrysotile; Assumed* 220
-------------------------------------------------------------------------------------------------
Joint Compound Telephone Room, East Side Joint compound: < 1% 150
-------------------------------------------------------------------------------------------------
Joint Compound Stairwell to Roof 2% Chrysotile 200
-------------------------------------------------------------------------------------------------
** Pipe Elbow Mudded Elbow on Domestic 15% Chrysotile 36 Elbows(1)
Insulation Water Lines, Attic and
Chiller Room
-------------------------------------------------------------------------------------------------
** Pipe Elbow On Chilled Water Lines, 3% Chrysotile 24 Elbows
Insulation Chiller Room
-------------------------------------------------------------------------------------------------
** Pipe Fitting Chilled Water Lines West and 2% Chrysotile 12 Fittings
Insulation East Attics
-------------------------------------------------------------------------------------------------
** Pipe Fitting Heating Hot Water Lines in Assumed 2 Fittings
Insulation Chiller Room
-------------------------------------------------------------------------------------------------
** White 9" by 9" Throughout East Side Building Tile: 2% Chrysotile; Mastic: ND 10,000
Floor Tile
w/Black Mastic
-------------------------------------------------------------------------------------------------
White Roof-Top Vent Covers 20% Chrysotile; Assumed 12 XX
Xxxxx/Tape
-------------------------------------------------------------------------------------------------
(1) Additional insulated domestic fittings may be located within restroom
walls.
* All flashing materials, caulking and white/xxxx tape on roof are assumed
to contain asbestos.
1.
EXHIBIT C
CERTAIN ENVIRONMENTAL DISCLOSURES; ASBESTOS DISCLOSURE
In 1982, soil and groundwater contamination was detected at the 1290 and
0000 Xxxxx Xxxxx Xxxxxx facility, which facility includes the Premises under
this Lease. A comprehensive investigation of the soil and groundwater at the
facility was conducted under the supervision and direction of the California
Regional Water Quality Control Board, San Francisco Bay Region (the "RWQCB").
The investigation detected releases of volatile organic compounds ("VOCs"),
including the hazardous substances trichloroethylene, 1,2-dichloroethylene,
1,1-dichloroethylene, trichloroethane, 1,1-dichloroethane, freon 113,
perchloroethylene, and vinyl chloride. The investigation was conducted by
Teledyne Semiconductor, Inc. In June 1986, the U.S. Environmental Protection
Agency listed the Teledyne Semiconductor, Inc. facility site on the National
Priorities List of the Comprehensive Environmental Response, Compensation and
Liability Act (commonly referred to as Superfund).
Based on the results of Remedial Investigation/Feasibility Study, the
RWQCB issued Site Cleanup Requirements Order on February 21, 1991 (Order No.
91-025), and as amended on December 14, 1994 (Order No. 94-184). Pursuant to an
approved Remedial Action Plan, Teledyne has installed and at present operates 29
groundwater monitoring xxxxx and two extraction xxxxx at the property. The
extraction xxxxx remove groundwater which is then treated at an onsite treatment
system to remove the VOCs. The treated groundwater is then discharged into the
storm sewer pursuant to a RWQCB permit.
For your reference, California Health & Safety Code Section 25359.7(a)
provides:
Any owner of nonresidential real property who knows, or has reasonable
cause to believe, that any release of hazardous substance has come to be located
on or beneath that real property shall, prior to the sale, lease, or rental of
the real property by that owner, give written notice of that condition to the
buyer, lessee, or renter of the real property. Failure of the owner to provide
written notice when required by this subdivision to the buyer, lessee, or renter
shall subject the owner to actual damages and any other remedies provided by the
law. In addition, where the owner has actual knowledge of the presence of any
release of a material amount of a hazardous substance and knowingly and
willfully fails to provide written notice to the buyer, lessee, or renter, as
required by this subdivision, the owner is liable for a civil penalty not to
exceed five thousand dollars ($5,000) for each separate violation.
Tenant acknowledges receipt of a copy of the Final Report - Asbestos
Management Services dated February 21, 1997 and Final Operations and Maintenance
Plan for Asbestos Management dated March 25, 1997 of Pinnacle Environmental,
Inc., which are incorporated herein.
1.
EXHIBIT D
HAZARDOUS SUBSTANCES LIMITATIONS
[TO BE APPENDED]
1.
EXHIBIT D
CHEMICAL INVENTORY FOR TABLE 9-A, 1991 UNIFORM BUILDING CODE 1.1
COMBUSTIBLE LIQUID / 3.3 FLAMMABLE LIQUID
----------------------------------------------------------------------------------------------------------------------------------
COMBUSTIBLE LIQUID 1.1 FLAMMABLE LIQUID 3.3
STORAGE BLDG LAB -----------------------------------------------------------------
XXXXXXXX XXXXXX # # XX(X) XXX-X(x) XXX-X(x) X-X(x) I-B(g) I-C(g)
----------------------------------------------------------------------------------------------------------------------------------
1,4 Dioxane 200 ml 2 10 200
----------------------------------------------------------------------------------------------------------------------------------
1-Methylimidazole 1 L 2 10 1,000
----------------------------------------------------------------------------------------------------------------------------------
2,4 Dinitro-fluorobenzene 80 g 2 10
----------------------------------------------------------------------------------------------------------------------------------
2-Butanol 1 L 2 10 1,000
----------------------------------------------------------------------------------------------------------------------------------
3,3' Xxxxxxx-X-xxxxxx- 00 x 0 00 00
dipropylamine
----------------------------------------------------------------------------------------------------------------------------------
3-Amino-1,2 Methozyacridine 100 g 2 10 100
----------------------------------------------------------------------------------------------------------------------------------
4-Dimethylaminopyridine 10 g 2 10 10
(DMAP)
----------------------------------------------------------------------------------------------------------------------------------
6,9-Dichloro-2- 30 g 2 10
methoxyacridine
----------------------------------------------------------------------------------------------------------------------------------
6-Amino-1-hexanol 100 g 2 10
----------------------------------------------------------------------------------------------------------------------------------
6-Chloro-1-hexanol 25 g 2 10
----------------------------------------------------------------------------------------------------------------------------------
Acetic Anhydride 3 kg 2 10
----------------------------------------------------------------------------------------------------------------------------------
Acryloyl chloride 10 g 2 10 10
----------------------------------------------------------------------------------------------------------------------------------
Adenosine* 300 g 2 10
----------------------------------------------------------------------------------------------------------------------------------
Agarose 1 kg 2 14
----------------------------------------------------------------------------------------------------------------------------------
Aminocaproic acid 200 g 2 10
----------------------------------------------------------------------------------------------------------------------------------
?? 25 g 2 10
----------------------------------------------------------------------------------------------------------------------------------
BORANE-THL complex 100 ml 2 10
----------------------------------------------------------------------------------------------------------------------------------
Bromobutrylnitrile 700 g 2 10 700
----------------------------------------------------------------------------------------------------------------------------------
Carbonyldiimidazole 100 g 2 10
----------------------------------------------------------------------------------------------------------------------------------
CE-tretraisopropyl- 200 g 2 10
phosphorodiamidite
----------------------------------------------------------------------------------------------------------------------------------
Cholesteryl chloroformate 100 g 2 10
----------------------------------------------------------------------------------------------------------------------------------
Citric Acid 450 g 2 10
----------------------------------------------------------------------------------------------------------------------------------
Cytidine 300 g 2 10 300
----------------------------------------------------------------------------------------------------------------------------------
d-Biotin* 100 g 2 10
----------------------------------------------------------------------------------------------------------------------------------
Diamino-octane 30 g 2 10
----------------------------------------------------------------------------------------------------------------------------------
Dichloroethane 500 ml 2 10
----------------------------------------------------------------------------------------------------------------------------------
Dicyclohexylcarbodiimide 200 g 2 10 200
----------------------------------------------------------------------------------------------------------------------------------
Diethylmalonate 2 kg 2 10 2,000
----------------------------------------------------------------------------------------------------------------------------------
Diisopropylethyl amine 500 ml 2 10 500
----------------------------------------------------------------------------------------------------------------------------------
Dimethoxytrityl Chloride 400 g 2 10
(DMTCL) (3)
----------------------------------------------------------------------------------------------------------------------------------
Dithiolthreitol (3) 15 g 2 10
----------------------------------------------------------------------------------------------------------------------------------
diUTP* 1 g 2 10
----------------------------------------------------------------------------------------------------------------------------------
Ethyl trifluoracetate (1) 1 kg 2 10
----------------------------------------------------------------------------------------------------------------------------------
Ethyelene diamine 300 g 2 10
----------------------------------------------------------------------------------------------------------------------------------
Fluorescein isothiocyanate 60 g 2 10
(FITC) (3)
----------------------------------------------------------------------------------------------------------------------------------
???oc-CI (1) (5) 500 g 2 10
----------------------------------------------------------------------------------------------------------------------------------
Fmoc-glycine* 10 g 2 10
----------------------------------------------------------------------------------------------------------------------------------
Formaldehyde** 5.8 L 2 14
----------------------------------------------------------------------------------------------------------------------------------
Glacial Acetic Acid 5 L 2 10 5,000
----------------------------------------------------------------------------------------------------------------------------------
Guanosine 300 g 2 10
----------------------------------------------------------------------------------------------------------------------------------
Hexxamethylsilazane (1) 1.5 L 2 10 1,500
----------------------------------------------------------------------------------------------------------------------------------
Hydrazine (anhydrous) (2) (5) 200 g 2 10
----------------------------------------------------------------------------------------------------------------------------------
Iodine (1) 600 g 2 10
----------------------------------------------------------------------------------------------------------------------------------
Levulnic acid (1) 200 g 2 10
----------------------------------------------------------------------------------------------------------------------------------
1.
----------------------------------------------------------------------------------------------------------------------------------
COMBUSTIBLE LIQUID 1.1 FLAMMABLE LIQUID 3.3
STORAGE BLDG LAB -----------------------------------------------------------------
XXXXXXXX XXXXXX # # XX(X) XXX-X(x) XXX-X(x) X-X(x) I-B(g) I-C(g)
----------------------------------------------------------------------------------------------------------------------------------
Lithium aluminum hydride (1) 125 g 2 10
----------------------------------------------------------------------------------------------------------------------------------
Lithium chloride* 50 g 2 10
----------------------------------------------------------------------------------------------------------------------------------
Lithium chloride* (3) 50 g 2 10
----------------------------------------------------------------------------------------------------------------------------------
Mercuric acetate (1) (2) 100 g 2 10
----------------------------------------------------------------------------------------------------------------------------------
N-hydroxysuccinimide (3) 200 g 2 10
----------------------------------------------------------------------------------------------------------------------------------
p- Toluoyl Chloride (1) (5) 250 ml 2 10 250
----------------------------------------------------------------------------------------------------------------------------------
p-Anisylchlorodiphenyl 100 g 2 10
methane
----------------------------------------------------------------------------------------------------------------------------------
p-Nitrophenol (3) 10 g 2 10
----------------------------------------------------------------------------------------------------------------------------------
Phenoxyacethyl chloride (1) 250 g 2 10 250
(5)
----------------------------------------------------------------------------------------------------------------------------------
???dine (6) 100 ml 2 10
----------------------------------------------------------------------------------------------------------------------------------
Potasium bicarbonate 500 g 2 10 500
----------------------------------------------------------------------------------------------------------------------------------
Potasium Tetrachloropalladate 1 g 2 10 1
(1)
----------------------------------------------------------------------------------------------------------------------------------
Sodium Acetate (anhydrous)* 100 g 2 10
----------------------------------------------------------------------------------------------------------------------------------
BUILDING 2 TOTAL (GRAMS) 5,000 2,750 3,670 0 2,101 50
----------------------------------------------------------------------------------------------------------------------------------
BUILDING 2 TOTAL (GALLONS) 1.32 0.73 0.97 0.00 0.56 0.01
----------------------------------------------------------------------------------------------------------------------------------
NOTES:
1. The above quantities were checked as of 3/17/97 Inventory.
2. Building 4 on Fabian Way and Double Starred (**) items in Building 2 will
relocate to 1290 Tera Bella in Mountain View (Building 6).
3. Starred Items (*) = Non-Hazardous Materials (Per Dr. Xxx Xxxxx, 1/95)
4. All Storage Amounts are converted to Grams (g).
5. Abbreviations:
CB = Combustible OX = Oxidizer WR - Water Reactive
FS = Flammable Solid PY = Pyrophoric NH = Non-Hazardous
FL = Flammable Liquid RE = Reactive
2.
EXHIBIT D
(CONTINUED)
CHEMICAL INVENTORY FOR TABLE 9-A, 1991 UNIFORM BUILDING CODE 1.1
COMBUSTIBLE LIQUID / 3.3 FLAMMABLE LIQUID
----------------------------------------------------------------------------------------------------------------------------------
COMBUSTIBLE LIQUID 1.1 FLAMMABLE LIQUID 3.3
STORAGE BLDG LAB -----------------------------------------------------------------
XXXXXXXX XXXXXX # # XX(x) XXX-X(x) XXX-X(x) X-X(x) I-B(g) I-C(g)
----------------------------------------------------------------------------------------------------------------------------------
Acetic Acid 500 g 4 16 500
----------------------------------------------------------------------------------------------------------------------------------
Acetic Acid, Glacial (1) 23 g 4 19 23
----------------------------------------------------------------------------------------------------------------------------------
Acetonitrile 65 L 4 19 65,000
----------------------------------------------------------------------------------------------------------------------------------
Acrylamide (5) (6) 6.6 kg 4 19
----------------------------------------------------------------------------------------------------------------------------------
Agarose 378 g 4 16
----------------------------------------------------------------------------------------------------------------------------------
Agarose 468 g 4 16 468
----------------------------------------------------------------------------------------------------------------------------------
Agarose 930 g 4 18
----------------------------------------------------------------------------------------------------------------------------------
Ammonium Persulfate (1) 162 g 4 19
----------------------------------------------------------------------------------------------------------------------------------
Bis-Acrylamide 915 g 4 19
----------------------------------------------------------------------------------------------------------------------------------
Bromophenol 16 g 4 19
----------------------------------------------------------------------------------------------------------------------------------
Bromophenol Blue* 40 g 4 16
----------------------------------------------------------------------------------------------------------------------------------
Cacodylic Acid 77 g 4 16
----------------------------------------------------------------------------------------------------------------------------------
Chloroform (6) 170 ml 4 17
----------------------------------------------------------------------------------------------------------------------------------
Chloroform (6) 19.4 g 4 19
----------------------------------------------------------------------------------------------------------------------------------
Diathol Amine (1) 32 kg 4 19
----------------------------------------------------------------------------------------------------------------------------------
Dichloromethane 9 L 4 19 9,000
----------------------------------------------------------------------------------------------------------------------------------
Diethanol 737 g 4 20
----------------------------------------------------------------------------------------------------------------------------------
Diethanolamine (6) 434 g 4 17
----------------------------------------------------------------------------------------------------------------------------------
EDTA 0.5M 1 L 4 16
----------------------------------------------------------------------------------------------------------------------------------
Ethanol 1 L 4 20 1,000
----------------------------------------------------------------------------------------------------------------------------------
Ethidium Bromide (3) (5) 11 g 4 18
----------------------------------------------------------------------------------------------------------------------------------
Formaldehyde 8.4 g 4 20
----------------------------------------------------------------------------------------------------------------------------------
Formaldehyde (3) 2 L 4 18 2,000
----------------------------------------------------------------------------------------------------------------------------------
Formamide 25 ml 4 16
----------------------------------------------------------------------------------------------------------------------------------
Formamide 912 ml 4 18 912
----------------------------------------------------------------------------------------------------------------------------------
Formamide 950 ml 4 20 950
----------------------------------------------------------------------------------------------------------------------------------
Glycerol* 38 ml 4 20
----------------------------------------------------------------------------------------------------------------------------------
Guanadine Thiocyanate* 3.6 kg 4 17
----------------------------------------------------------------------------------------------------------------------------------
Guanadine Thiocyanate* 200 g 4 19
----------------------------------------------------------------------------------------------------------------------------------
Guanidine 400 g 4 16
----------------------------------------------------------------------------------------------------------------------------------
Guanidine Thiocyanate* 30 kg 4 16
----------------------------------------------------------------------------------------------------------------------------------
Hydrochloric Acid (3) 3.5 L 4 18
----------------------------------------------------------------------------------------------------------------------------------
Iso-Prophyl Alcohol 2 L 4 16
----------------------------------------------------------------------------------------------------------------------------------
Isoamyl Alcohol 500 ml 4 18
----------------------------------------------------------------------------------------------------------------------------------
Kanamycin Sulfate 2 g 4 18
----------------------------------------------------------------------------------------------------------------------------------
L-Arginine, HCL* 28.9 g 4 18
----------------------------------------------------------------------------------------------------------------------------------
L-Histidine HCL* 2.4 g 4 18
----------------------------------------------------------------------------------------------------------------------------------
L-Leucine* 2.6 g 4 18
----------------------------------------------------------------------------------------------------------------------------------
L-Lycine* 27.4 g 4 18
----------------------------------------------------------------------------------------------------------------------------------
L-Methionine* 9 g 4 18
----------------------------------------------------------------------------------------------------------------------------------
L-Phenylalanine* 22.4 g 4 18
----------------------------------------------------------------------------------------------------------------------------------
L-Threonine* 31 g 4 18
----------------------------------------------------------------------------------------------------------------------------------
L-Trytophan* 14 mg 4 18
----------------------------------------------------------------------------------------------------------------------------------
L-Tyrosisne* 77 g 4 18
----------------------------------------------------------------------------------------------------------------------------------
L-Valine* 43 g 4 18
----------------------------------------------------------------------------------------------------------------------------------
Lauroyl Sarcosine 530 g 4 18
----------------------------------------------------------------------------------------------------------------------------------
Lauryl Sulfate* 700 g 4 16
----------------------------------------------------------------------------------------------------------------------------------
Magnesium Chloride* (3) 1.7 kg 4 18
----------------------------------------------------------------------------------------------------------------------------------
Magnesium Chloride* (3) 100 ml 4 19 100 100
----------------------------------------------------------------------------------------------------------------------------------
Methanol 14 L 4 19
----------------------------------------------------------------------------------------------------------------------------------
3.
----------------------------------------------------------------------------------------------------------------------------------
COMBUSTIBLE LIQUID 1.1 FLAMMABLE LIQUID 3.3
STORAGE BLDG LAB -----------------------------------------------------------------
XXXXXXXX XXXXXX # # XX(x) XXX-X(x) XXX-X(x) X-X(x) I-B(g) I-C(g)
----------------------------------------------------------------------------------------------------------------------------------
Phenol 375 g 4 16
----------------------------------------------------------------------------------------------------------------------------------
Polyethelyne Glycol 21 kg 4 18
----------------------------------------------------------------------------------------------------------------------------------
Potasium Phospate, Monobasic* 4.3 kg 4 18
----------------------------------------------------------------------------------------------------------------------------------
Pyridine 21 L 4 19 21,000
----------------------------------------------------------------------------------------------------------------------------------
Silica (6) 1173 g 4 20
----------------------------------------------------------------------------------------------------------------------------------
Sodium Acetate* 4 kg 4 16
----------------------------------------------------------------------------------------------------------------------------------
Sodium Acetate* 2064 g 4 18
----------------------------------------------------------------------------------------------------------------------------------
Sodium Acetate* 333 g 4 20
----------------------------------------------------------------------------------------------------------------------------------
Sodium Azide* 8.8 g 4 18
----------------------------------------------------------------------------------------------------------------------------------
Sodium Azide* 93.5 kg 4 20
----------------------------------------------------------------------------------------------------------------------------------
Sodium Bicarbonate* 6.3 g 4 18
----------------------------------------------------------------------------------------------------------------------------------
Sodium Carbonate* 4.7 kg 4 18
----------------------------------------------------------------------------------------------------------------------------------
Sodium Carbonate* (3) 4.7 kg 4 18
----------------------------------------------------------------------------------------------------------------------------------
Sodium Chloride* 200 g 4 16
----------------------------------------------------------------------------------------------------------------------------------
Sodium Chloride* (3) 3.8 kg 4 18
----------------------------------------------------------------------------------------------------------------------------------
Sodium Citrate* 300 g 4 16
----------------------------------------------------------------------------------------------------------------------------------
Sodium Citrate* 1.6 kg 4 18
----------------------------------------------------------------------------------------------------------------------------------
Sodium Hydroxide (1) 11.3 kg 4 18
----------------------------------------------------------------------------------------------------------------------------------
Sodium Hydroxide (1) 400 g 4 16
----------------------------------------------------------------------------------------------------------------------------------
Sodium Iodide 1.8 kg 4 18
----------------------------------------------------------------------------------------------------------------------------------
Sodium Phosphate (3) 5.8 kg 4 16
----------------------------------------------------------------------------------------------------------------------------------
Sodium Phosphate (3) 15.4 kg 4 20
----------------------------------------------------------------------------------------------------------------------------------
Sodium Phosphate, Dibasic* (3) 2.6 kg 4 18
----------------------------------------------------------------------------------------------------------------------------------
Sodium Phosphate, Monobasic* (3) 167 g 4 18
----------------------------------------------------------------------------------------------------------------------------------
Sucrose 190 g 4 18
----------------------------------------------------------------------------------------------------------------------------------
Tetracyline HCL* 93.6 g 4 18
----------------------------------------------------------------------------------------------------------------------------------
Triethylamine 2 L 4 19 2,000
----------------------------------------------------------------------------------------------------------------------------------
Tris* 18.7 kg 4 18
----------------------------------------------------------------------------------------------------------------------------------
Tryptone* 7.8 kg 4 18
----------------------------------------------------------------------------------------------------------------------------------
Urea 12.2 kg 4 19
----------------------------------------------------------------------------------------------------------------------------------
Urea (1) 504 g 4 16
----------------------------------------------------------------------------------------------------------------------------------
Yeast Nitrogen Base (No Amino 3.1 kg 4 18
Acid)*
----------------------------------------------------------------------------------------------------------------------------------
BUILDING 4 TOTAL (GRAMS) 2,523 2,862 0 100 97,468 100
----------------------------------------------------------------------------------------------------------------------------------
BUILDING 4 TOTAL (GALLONS) 0.67 0.76 0.00 0.03 25.75 0.03
----------------------------------------------------------------------------------------------------------------------------------
NOTES:
1. The above quantities were checked as of 3/17/97 Inventory
2. Building 4 on Fabian Way and Double Starred (**) items in Building 2 will
relocate to 1290 Tera Bella in Mountain View (Building 6).
3. Starred Items (*) = Non-Hazardous Materials (Per Dr. Xxx Xxxxx, 1/95)
4. All Storage Amounts are converted to Grams (g).
5. Abbreviations:
CB = Combustible OX = Oxidizer WR - Water Reactive
FS = Flammable Solid PY = Pyrophoric NH = Non-Hazardous
FL = Flammable Liquid RE = Reactive
4.
EXHIBIT D
(CONTINUED)
CHEMICAL INVENTORY FOR TABLE 9-A, 1991 UNIFORM BUILDING CODE 1.1
COMBUSTIBLE LIQUID / 3.3 FLAMMABLE LIQUID
----------------------------------------------------------------------------------------------------------------------------------
COMBUSTIBLE LIQUID 1.1 FLAMMABLE LIQUID 3.3
CHEMICAL STORAGE BLDG LAB -----------------------------------------------------------------
AMOUNT # # II(g) III-A(g) III-B(g) I-A(g) I-B(g) I-C(g)
----------------------------------------------------------------------------------------------------------------------------------
2-Mercaptoethanol 100 ml 5 204
----------------------------------------------------------------------------------------------------------------------------------
2-Naphthol 100 g 5 204 100
----------------------------------------------------------------------------------------------------------------------------------
3-Methyl-1 Buthanol 2 L 5 201 2,000
----------------------------------------------------------------------------------------------------------------------------------
8-Hydroxy-guinoline 300 ml 5 183
----------------------------------------------------------------------------------------------------------------------------------
8-Methyoxypsoralen 3 g 5 181
----------------------------------------------------------------------------------------------------------------------------------
Acetone 4 L 5 184 4,000
----------------------------------------------------------------------------------------------------------------------------------
Acrylamide 250 g 5 181
----------------------------------------------------------------------------------------------------------------------------------
Acrylamide 100 g 5 204
----------------------------------------------------------------------------------------------------------------------------------
Agar 500 g 5 204
----------------------------------------------------------------------------------------------------------------------------------
Agarose 245 g 5 181
----------------------------------------------------------------------------------------------------------------------------------
Agarose 2.5 kg 5 204
----------------------------------------------------------------------------------------------------------------------------------
Ambalite XAD-16 900 g 5 204
----------------------------------------------------------------------------------------------------------------------------------
Ammonium Persulfate 100 g 5 204
----------------------------------------------------------------------------------------------------------------------------------
Bis-Acrylamide 10 g 5 181
----------------------------------------------------------------------------------------------------------------------------------
BSA 200 g 5 181
----------------------------------------------------------------------------------------------------------------------------------
???? Alcohol 1 L 5 201 1,000
----------------------------------------------------------------------------------------------------------------------------------
Caffeine 500 g 5 204
----------------------------------------------------------------------------------------------------------------------------------
DEAE Cellulose 50 g 5 181
----------------------------------------------------------------------------------------------------------------------------------
Dextran So4 50 g 5 181
----------------------------------------------------------------------------------------------------------------------------------
Dextrose 200 g 5 204
----------------------------------------------------------------------------------------------------------------------------------
Dimethyl Sulfoxide 500 ml 5 184
----------------------------------------------------------------------------------------------------------------------------------
DTT 100 g 5 204
----------------------------------------------------------------------------------------------------------------------------------
E+OH 500 ml 5 204
----------------------------------------------------------------------------------------------------------------------------------
EDTA 3 kg 5 204
----------------------------------------------------------------------------------------------------------------------------------
EGTA 60 g 5 181
----------------------------------------------------------------------------------------------------------------------------------
Ethanol 95% 4 L 5 204
----------------------------------------------------------------------------------------------------------------------------------
Ethidium Bromide 1 g 5 204
----------------------------------------------------------------------------------------------------------------------------------
Ethyl Ether 1 L 5 201
----------------------------------------------------------------------------------------------------------------------------------
Fformic Acid 100 ml 5 204
----------------------------------------------------------------------------------------------------------------------------------
FiColl* 25 g 5 181
----------------------------------------------------------------------------------------------------------------------------------
Formaldehyde 500 ml 5 181
----------------------------------------------------------------------------------------------------------------------------------
Formaldehyde 200 ml 5 184
----------------------------------------------------------------------------------------------------------------------------------
Formamide* 500 ml 5 181
----------------------------------------------------------------------------------------------------------------------------------
Formamide, Ultra Pure* 300 ml 5 201
----------------------------------------------------------------------------------------------------------------------------------
Formic Acid 500 ml 5 203
----------------------------------------------------------------------------------------------------------------------------------
????midine Thiocyanete 20 g 5 204
----------------------------------------------------------------------------------------------------------------------------------
Hexadecyl Tri-methylammonium 50 gm 5 201
Bromide
----------------------------------------------------------------------------------------------------------------------------------
Hydrochloric Acid 200 ml 5 184
----------------------------------------------------------------------------------------------------------------------------------
Hydrochloric Acid 300 ml 5 203
----------------------------------------------------------------------------------------------------------------------------------
Iso-Prophyl Alcohol 3 L 5 184
----------------------------------------------------------------------------------------------------------------------------------
Isoamyla Alcohol 500 ml 5 181 500
----------------------------------------------------------------------------------------------------------------------------------
Isopropanol 500 ml 5 181 500
----------------------------------------------------------------------------------------------------------------------------------
Isopropanol 2.5 L 5 204 2,500
----------------------------------------------------------------------------------------------------------------------------------
Isoprophyl Alcohol 10 L 5 201 10,000
----------------------------------------------------------------------------------------------------------------------------------
Kilorose* 300 g 5 204
----------------------------------------------------------------------------------------------------------------------------------
Kilorose* 400 g 5 204
----------------------------------------------------------------------------------------------------------------------------------
Magesium Sulfate* 500 g 5 204
----------------------------------------------------------------------------------------------------------------------------------
Magnesium Chloride* (3) 600 g 5 204
----------------------------------------------------------------------------------------------------------------------------------
Methanol 100 ml 5 184 100 100
5.
----------------------------------------------------------------------------------------------------------------------------------
COMBUSTIBLE LIQUID 1.1 FLAMMABLE LIQUID 3.3
CHEMICAL STORAGE BLDG LAB -----------------------------------------------------------------
AMOUNT # # II(g) III-A(g) III-B(g) I-A(g) I-B(g) I-C(g)
----------------------------------------------------------------------------------------------------------------------------------
Mineral Oil 1 L 5 204
----------------------------------------------------------------------------------------------------------------------------------
Mineral Oil 500 mls 1 L 5 204
----------------------------------------------------------------------------------------------------------------------------------
N Lauryol Sarcosine 50 g 5 181
----------------------------------------------------------------------------------------------------------------------------------
N-Buthanol 500 ml 5 181 500
----------------------------------------------------------------------------------------------------------------------------------
N-Buthanol 500 ml 5 204 500
----------------------------------------------------------------------------------------------------------------------------------
???13 Persulfate 20 g 5 181
----------------------------------------------------------------------------------------------------------------------------------
Para Formaldehyde 500 g 5 204
----------------------------------------------------------------------------------------------------------------------------------
PEG 8000 900 g 5 201
----------------------------------------------------------------------------------------------------------------------------------
PEG 8000 300 g 5 204
----------------------------------------------------------------------------------------------------------------------------------
Peptone 1.5 kg 5 204
----------------------------------------------------------------------------------------------------------------------------------
Phosphoric Acid GR 500 ml 5 203
----------------------------------------------------------------------------------------------------------------------------------
Piperidine 500 g 5 201 500
----------------------------------------------------------------------------------------------------------------------------------
Polyethylene Glycole (PEG) 450 g 5 181
----------------------------------------------------------------------------------------------------------------------------------
Polyvinyl-Pyrrolidone (PVP) 300 gm 5 201
----------------------------------------------------------------------------------------------------------------------------------
Potassium Hydroxide 400 g 5 204
----------------------------------------------------------------------------------------------------------------------------------
Reagent Alcohol 20 L 5 184 20,000
----------------------------------------------------------------------------------------------------------------------------------
Reagent Alcohol 4.5 gal 5 201 17,033
----------------------------------------------------------------------------------------------------------------------------------
Repel Silane 500 ml 5 181
----------------------------------------------------------------------------------------------------------------------------------
SDS 500 g 5 181
----------------------------------------------------------------------------------------------------------------------------------
Sec-Butyl Alcohol (2- 4 L 5 201 4,000
Buthanol)
----------------------------------------------------------------------------------------------------------------------------------
Sephadex G-25 50 ml 5 204
----------------------------------------------------------------------------------------------------------------------------------
Sephadex G-50 20 g 5 204
----------------------------------------------------------------------------------------------------------------------------------
Silver Nitrate 50 g 5 184
----------------------------------------------------------------------------------------------------------------------------------
Sodium Acetate* 1 kg 5 204
----------------------------------------------------------------------------------------------------------------------------------
Sodium Flouride (6) 100 g 5 204
----------------------------------------------------------------------------------------------------------------------------------
Sodium Hydroxide 300 g 5 184
----------------------------------------------------------------------------------------------------------------------------------
Sodium Hydroxide 300 g 5 204
----------------------------------------------------------------------------------------------------------------------------------
Sorbitol 100 g 5 201
----------------------------------------------------------------------------------------------------------------------------------
Sorbitol 100 g 5 204
----------------------------------------------------------------------------------------------------------------------------------
Sucrose 500 g 5 181
----------------------------------------------------------------------------------------------------------------------------------
Sucrose 200 g 5 204
----------------------------------------------------------------------------------------------------------------------------------
Sucrose 40 g 5 204
----------------------------------------------------------------------------------------------------------------------------------
Sucrose 100 g 5 204
----------------------------------------------------------------------------------------------------------------------------------
Trichloro-Acedic Acid 25 g 5 204
----------------------------------------------------------------------------------------------------------------------------------
Trizma Base 5 kg 5 181
----------------------------------------------------------------------------------------------------------------------------------
Urea 4 kg 5 181
----------------------------------------------------------------------------------------------------------------------------------
Urea 2 kg 5 204
----------------------------------------------------------------------------------------------------------------------------------
BUILDING 5 TOTAL (GRAMS) 2,500 100 0 41,133 500 19,100
----------------------------------------------------------------------------------------------------------------------------------
BUILDING 5 TOTAL (GALLONS) 0.66 0.03 0.00 10.87 0.13 5.05
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
COMBUSTIBLE LIQUID 1.1 FLAMMABLE LIQUID 3.3
CHEMICAL STORAGE BLDG LAB -----------------------------------------------------------------
AMOUNT # # II(g) III-A(g) III-B(g) I-A(g) I-B(g) I-C(g)
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
COMPANY TOTAL (GRAMS) 10,023 5,712 3,670 41,233 100,069 19,250
----------------------------------------------------------------------------------------------------------------------------------
COMPANY TOTAL (GALLONS) 2.65 1.51 0.97 10.89 26.44 5.09
----------------------------------------------------------------------------------------------------------------------------------
NOTES:
1. The above quantities were checked as of 3/17/97 Inventory
2. Building 4 on Fabian Way and Double Starred (**) items in Building 2 will
relocate to 1290 Tera Bella in Mountain View (Building 6).
3. Starred Items (*) = Non-Hazardous Materials (Per Dr. Xxx Xxxxx, 1/95)
4. All Storage Amounts are converted to Grams (g).
5. Abbreviations:
CB = Combustible OX = Oxidizer WR - Water Reactive
FS = Flammable Solid PY = Pyrophoric NH = Non-Hazardous
FL = Flammable Liquid RE = Reactive
6.
