EXHIBIT 10.7
LEASE AGREEMENT
(NNN)
BASIC LEASE INFORMATION
LEASE DATE: June 4, 1998
LANDLORD: MILPITAS INDUSTRIAL PROPERTIES, INC.,
a Delaware corporation
LANDLORD'S ADDRESS: c/o LPC MS, Inc.
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxx Xxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000-0000
TENANT: Viko Technology Inc.,
A California corporation, dba Adaptive Electronics
TENANT'S ADDRESS: 0000 Xxxxxx Xxxx, Units A and B
Xxx Xxxx, Xxxxxxxxxx 00000
PREMISES: Approximately 25,200 rentable square feet as shown on
Exhibit A
PREMISES ADDRESS: 0000 Xxxxxx Xxxx, Xxxxx X and B
Xxx Xxxx, Xxxxxxxxxx 00000
BUILDING B: Approximately 62,400 rentable square feet
LOT
(BUILDING'S TAX PARCEL): APN 254-17-075-00
MABURY INDUSTRIAL PARK: Approximately 217,777 rentable square feet
TERM: April 1, 1998 ("Commencement Date"), through
March 31, 2003 ("Expiration Date")
BASE RENT (3): Seventeen Thousand Four Hundred Thirty and 00/100
Dollars ($17,430.00) per month commencing on April 1,
1998 through March 31, 1999
ADJUSTMENTS TO BASE RENT: April 1, 1999 - December 31, 1999 the Base Rent shall
increase to $18,102.00 per month
January 1, 2000 - March 31, 2000 the Base Rent shall
increase to $18,522.00 per month
April 1, 2000 - March 31, 2001 the Base Rent shall
increase to $19,026.00 per month
April 1, 2001 - 12/31/2001 the Base Rent shall
increase to $19,530.00 per month
January 1, 2002 - March 31, 2002 the Base Rent shall
increase to $20,916.00 per month
April 1, 2002 - March 31, 2003 the Base Rent shall
increase to $21,924.00 per month
SECURITY DEPOSIT (4): Thirteen Thousand Four Hundred Eighty-Two and 00/100
Dollars ($13,482.00) presently being held by
Landlord.
*TENANT'S SHARE OF OPERATING EXPENSES (6.1): 11.57% of the Park
*TENANT'S SHARE OF TAX EXPENSES (6.2): 40.38% of Building B
*TENANT'S SHARE OF COMMON AREA UTILITY COSTS (7): 11.57% of the Park
*TENANT'S SHARE OF UTILITY EXPENSES (7): 11.57% of the Park
*The amount of Tenant's Share of the expenses as referenced above shall be
subject to modification as set forth in this Lease.
PERMITTED USES (9): PC Board assembly, general office and other legally
related uses, but only to the extent permitted by the
City of San Xxxx and all agencies and governmental
authorities having jurisdiction thereof
UNRESERVED PARKING
SPACES: Twenty-five (25) non-exclusive and non-designated
spaces
BROKER (38): None for Tenant
LPC MS, Inc. for Landlord
EXHIBITS: Exhibit A - Premises, Building, Lot and/or Park
Exhibit B - Tenant Improvements
Exhibit C - Rules and Regulations
Exhibit D - Covenants, Conditions and Restrictions
(Intentionally omitted)
Exhibit E - Hazardous Materials Disclosure Certificate
- Example
Exhibit F - Change of Commencement Date - Example
Exhibit G - Tenant's Initial Hazardous Materials
Disclosure Certificate
Exhibit H - Sign Criteria (Intentionally omitted)
TABLE OF CONTENTS
SECTION PAGE
------- ----
1. PREMISES........................................................................ 3
2. ADJUSTMENT OF COMMENCEMENT DATE; CONDITION OF THE PREMISES...................... 3
3. RENT............................................................................ 3
4. SECURITY DEPOSIT................................................................ 4
5. TENANT IMPROVEMENTS............................................................. 4
6. ADDITIONAL RENT................................................................. 4
7. UTILITIES....................................................................... 6
8. LATE CHARGES.................................................................... 7
9. USE OF PREMISES................................................................. 7
10. ALTERATIONS AND ADDITIONS; AND SURRENDER OF PREMISES............................ 8
11. REPAIRS AND MAINTENANCE......................................................... 9
12. INSURANCE....................................................................... 10
13. WAIVER OF SUBROGATION........................................................... 11
14. LIMITATION OF LIABILITY AND INDEMNITY........................................... 11
15. ASSIGNMENT AND SUBLEASING....................................................... 12
16. AD VALOREM TAXES................................................................ 13
17. SUBORDINATION................................................................... 13
18. RIGHT OF ENTRY.................................................................. 13
19. ESTOPPEL CERTIFICATE............................................................ 14
20. TENANT'S DEFAULT................................................................ 14
21. REMEDIES FOR TENANT'S DEFAULT................................................... 14
22. HOLDING OVER.................................................................... 15
23. LANDLORD'S DEFAULT.............................................................. 16
24. PARKING......................................................................... 16
25. SALE OF PREMISES................................................................ 16
26. WAIVER.......................................................................... 16
27. CASUALTY DAMAGE................................................................. 16
28. CONDEMNATION.................................................................... 17
29. ENVIRONMENTAL MATTERS / HAZARDOUS MATERIALS..................................... 17
30. FINANCIAL STATEMENTS............................................................ 19
31. GENERAL PROVISIONS.............................................................. 19
32. SIGNS........................................................................... 21
33. MORTGAGEE PROTECTION............................................................ 21
34. QUITCLAIM....................................................................... 21
35. MODIFICATIONS FOR LENDER........................................................ 21
36. WARRANTIES OF TENANT............................................................ 21
37. COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT................................. 22
38. BROKERAGE COMMISSION............................................................ 22
39. QUIET ENJOYMENT................................................................. 22
40. LANDLORD'S ABILITY TO PERFORM TENANT'S UNPERFORMED OBLIGATIONS.................. 22
LEASE AGREEMENT
DATE: This Lease is made and entered into as of the Lease Date set forth on Page
1. The Basic Lease Information set forth on Page 1 and this Lease are and
shall be construed as a single instrument.
1. PREMISES: Landlord hereby leases the Premises to Tenant upon the terms and
conditions contained herein. Landlord hereby grants to Tenant a license for the
right to use, on a non-exclusive basis, parking areas and ancillary facilities
located within the Common Areas of the Park, subject to the terms of this Lease.
Landlord and Tenant hereby agree that for purposes of this Lease, as of the
Lease Date, the rentable square footage area of the Premises, the Building, the
Lot and the Park shall be deemed to be the number of rentable square feet as set
forth in the Basic Lease Information on Page 1. Tenant hereby acknowledges that
the rentable square footage of the Premises may include a proportionate share of
certain areas used in common by all occupants of the Building and/or the Park
(for example an electrical room or telephone room). Tenant further agrees that
the number of rentable square feet of the Building, the Lot and the Park may
subsequently change after the Lease Date commensurate with any modifications to
any of the foregoing by Landlord, and Tenant's Share shall accordingly change.
2. ADJUSTMENT OF COMMENCEMENT DATE: CONDITION OF THE PREMISES:
2.1 If Landlord cannot deliver possession of the Premises on the
Commencement Date, Landlord shall not be subject to any liability nor shall the
validity of the Lease be affected; provided, the Lease Term and the obligation
to pay Rent shall commence on the date possession is tendered and the Expiration
Date shall be extended commensurately. In the event the commencement date and/or
the expiration date of this Lease is other than the Commencement Date specified
in the Basic Lease Information, as the case may be, Landlord and Tenant shall
execute a written amendment to this Lease, substantially in the form of Exhibit
F hereto, wherein the parties shall specify the actual commencement date,
expiration date and the date on which Tenant is to commence paying Rent. The
word "Term" whenever used herein refers to the initial term of this Lease and
any extension thereof. By taking possession of the Premises, Tenant shall be
deemed to have accepted the Premises in good condition and state of repair.
Tenant hereby acknowledges and agrees that neither Landlord nor Landlord's
agents or representatives has made any representations or warranties as to the
suitability, safety or fitness of the Premises for the conduct of Tenant's
business, Tenant's intended use of the Premises or for any other purpose. Tenant
agrees that at any time before or during the Term of this Lease, Landlord shall
have the right to relocate Tenant from the Premises described herein to other
space within the Park on substantially the same terms and conditions of this
Lease provided the other space is of comparable size.
2.2 In the event Landlord permits Tenant to occupy the Premises prior to
the Commencement Date, such occupancy shall be at Tenant's sole risk and subject
to all the provisions of this Lease, including, but not limited to, the
requirement to pay Rent and the Security Deposit, and to obtain the insurance
required pursuant to this Lease and to deliver insurance certificates as
required herein. In addition to the foregoing, Landlord shall have the right to
impose such additional conditions on Tenant's early entry as Landlord shall deem
appropriate. If, at any time, Tenant is in default of any term, condition or
provision of this Lease, any such waiver by Landlord of Tenant's requirement to
pay rental payments shall be null and void and Tenant shall immediately pay to
Landlord all rental payments so waived by Landlord.
3. RENT: On the date that Tenant executes this Lease, Tenant shall deliver to
Landlord the original executed Lease, the Base Rent (which shall be applied
against the Rent payable for the first month Tenant is required to pay Base
Rent), the Security Deposit, and all insurance certificates evidencing the
insurance required to be obtained by Tenant under Section 12 of this Lease.
Tenant agrees to pay Landlord, without prior notice or demand, or abatement,
offset, deduction or claim, the Base Rent described in the Basic Lease
Information, payable in advance at Landlord's address specified in the Basic
Lease Information on the Commencement Date and thereafter on the first (1st) day
of each month throughout the balance of the Term of the Lease. In addition to
the Base Rent set forth in the Basic Lease Information, Tenant shall pay
Landlord in advance on the Commencement Date and thereafter on the first (1st)
day of each month throughout the balance of the Term of the Lease, as Additional
Rent, Tenant's Share of Operating Expenses, Tax Expenses, Common Area Utility
Costs, and Utility Expenses, as well as the Administrative Expenses. Tenant
shall also pay to Landlord as Additional Rent hereunder, immediately on
Landlord's demand therefor, any and all costs and expenses incurred by Landlord
to enforce the provisions of this Lease, including, but not limited to, costs
associated with the delivery of notices, delivery and recordation of notice(s)
of default, attorneys' fees, expert fees, court costs and filing fees
(collectively, the "Enforcement Expenses"). The term "Rent" whenever used herein
refers to the aggregate of all of these amounts. If Landlord permits Tenant to
occupy the Premises without requiring Tenant
to pay rental for a period of time, the waiver of the requirement to pay rental
payments shall only apply to waiver of the Base Rent and Tenant shall otherwise
perform all other obligations of Tenant required hereunder. The Rent for any
fractional part of a calendar month at the commencement or termination of the
Lease term shall be a prorated amount of the Rent for a full calendar month
based upon a thirty (30) day month. The prorated Rent shall be paid on the
Commencement Date and the first day of the calendar month in which the date of
termination occurs, as the case maybe.
4. SECURITY DEPOSIT: Upon Tenant's execution of this Lease, Tenant shall deliver
to Landlord, as a Security Deposit for the performance by Tenant of its
obligation under this Lease, the amount specified in the Basic Lease
Information. If Tenant is in default, Landlord may, but without obligation to do
so, use the Security Deposit, or any portion thereof, to cure the default or to
compensate Landlord for all damages sustained by Landlord resulting from
Tenant's default, including, but not limited to the Enforcement Expenses. Tenant
shall immediately on demand, pay to Landlord a sum equal to the portion of the
Security Deposit so applied or used so as to replenish the amount of the
Security Deposit held to increase such deposit to the amount initially deposited
with Landlord. At any time after Tenant has defaulted hereunder, Landlord may
require an increase in the amount of the Security Deposit required hereunder for
the then balance of the Lease Term and Tenant shall, immediately on demand, pay
to Landlord additional sums in the amount of such increase. As soon as
practicable after the termination of this Lease, Landlord shall return the
Security Deposit to Tenant, less such amounts as are reasonably necessary, as
determined solely by Landlord, to remedy Tenant's default(s) hereunder or to
otherwise restore the Premises to a clean and safe condition, reasonable wear
and tear expected. If the cost to restore the Premises exceeds the amount of the
Security Deposit, Tenant shall promptly deliver to Landlord any and all of such
excess sums as reasonably determined by Landlord. Landlord shall not be required
to keep the Security Deposit separate from other funds, and, unless otherwise
required by law, Tenant shall not be entitled to interest on the Security
Deposit. In no event or circumstance shall Tenant have the right to any use of
the Security Deposit and, specifically, Tenant may not use the Security Deposit
as a credit or to otherwise offset any payments required hereunder, including,
but not limited to, Rent or any portion thereof.
5. TENANT IMPROVEMENTS: Tenant hereby accepts the Premises as suitable for
Tenant's intended use and as being in good operating order, condition and
repair, "AS IS". Tenant acknowledges and agrees that neither Landlord nor any of
Landlord's agents, representatives or employees has made any representations as
to the suitability, fitness or condition of the Premises for the conduct of
Tenant's business or for any other purpose, including without limitation, any
storage incidental thereto. Tenant further acknowledges and agrees that neither
Landlord nor any of Landlord's agents, representatives or employees has agreed
to perform or undertake (i) any alterations to the Premises, or (ii) construct
any improvements in or to the Premises (collectively, "Tenant Improvements").
Any exception to the foregoing provisions must be made by express written
agreement by both parties.
6. ADDITIONAL RENT: It is intended by Landlord and Tenant that this Lease be a
"triple net lease." The costs and expenses described in this Section 6 and all
other sums, charges, costs and expenses specified in this Lease other than Base
Rent are to be paid by Tenant to Landlord as additional rent (collectively,
"Additional Rent").
6.1 OPERATING EXPENSES: In addition to the Base Rent set forth in
Section 3, Tenant shall pay Tenant's Share, which is specified in the Basic
Lease Information, of all Operating Expenses as Additional Rent. The term
"Operating Expenses" as used herein shall mean the total amounts paid or payable
by Landlord in connection with the ownership, maintenance, repair and operation
of the Premises, the Building and the Lot, and where applicable, of the Park
referred to in the Basic Lease Information. The amount of Tenant's Share of
Operating Expenses shall be reviewed from time to time by Landlord and shall be
subject to modification by Landlord if there is a change in the rentable square
footage of the Premises, the Building and/or the Park.. These Operating Expenses
may include, but are not limited to:
6.1.1 Landlord's cost of repairs to, and maintenance of, the
roof, the roof membrane and the exterior walls of the Building;
6.1.2 Landlord's cost of maintaining the outside paved area,
landscaping and other common areas for the Park. The term "Common
Areas" shall mean all areas and facilities within the Park exclusive of
the Premises and the other portions of the Park leasable exclusively to
other tenants. The Common Areas include, but are not limited to,
interior lobbies, mezzanines, parking areas, access and perimeter
roads, sidewalks, rail spurs, landscaped areas and similar areas and
facilities;
6.1.3 Landlord's annual cost of insurance insuring against
fire and extended coverage (including, if Landlord elects, "all risk"
or "special purpose" coverage) and all other
insurance, including, but not limited to, earthquake, flood and/or
surface water endorsements for the Building, the Lot and the Park
(including the Common Areas), rental value insurance against loss of
Rent in an amount equal to the amount of Rent for a period of at least
six (6) months commencing on the date of loss, and subject to the
provisions of Section 27 below, any deductible;
6.1.4 Landlord's cost of: (i) modifications and/or new
improvements to the Building, the Common Areas and/or the Park
occasioned by any rules, laws or regulations effective subsequent to
the date on which the Building was originally constructed, (ii)
reasonably necessary replacement improvements to the Building, the
Common Areas and the Park after the Lease Date; and (iii) new
improvements to the Building, the Common Areas and/or the Park that
reduce operating costs or improve life/safety conditions, all as
reasonably determined by Landlord, in it's sole discretion;
6.1.5 If Landlord elects to so procure, Landlord's cost of
preventive maintenance, and repair contracts including, but not limited
to, contracts for heating, ventilation and air conditioning systems,
lifts for disabled persons, and trash or refuse collection;
6.1.6 Landlord's cost of security and fire protection services
for the Building and/or the Park, as the case may be, if in Landlord's
sole discretion such services are provided;
6.1.7 Landlord's cost for maintenance and repair of any rail
spur and rail crossing, and for the creation and negotiation of, and
pursuant to, any rail spur or track agreements, licenses, easements or
other similar undertakings;
6.1.8 Landlord's cost of supplies, equipment, rental equipment
and other similar items used in the operation and/or maintenance of the
Park; and
6.1.9 Landlord's cost for the repairs and maintenance items
set forth in Section 11.2 below.
6.2 TAX EXPENSES: In addition to the Base Rent set forth in Section 3,
Tenant shall pay its share, which is specified in the Basic Lease Information,
of all real property taxes applicable to the land and improvements included
within the Lot on which the Premises are situated and one hundred percent (100%)
of all personal property taxes now or hereafter assessed or levied against the
Premises or Tenant's personal property. The amount of Tenant's share of Tax
Expenses shall be reviewed from time to time by Landlord and shall be subject to
modification by Landlord if there is a change in the rentable square footage of
the Premises, the Building and/or the Park. Tenant shall also pay one hundred
percent (100%) of any increase in real property taxes attributable, in
Landlord's sole discretion, to any and all alterations or other improvements of
any kind, which are above standard improvements customarily installed for
similar buildings located within the Building or the Park (as applicable),
whatsoever placed in, on or about the Premises for the benefit of, at the
request of, or by Tenant. The term "Tax Expenses" shall mean and include,
without limitation, any form of tax and assessment (general, special,
supplemental, ordinary or extraordinary), commercial rental tax, payments under
any improvement bond or bonds, license fees, license tax, business license fee,
rental tax, transaction tax, levy, or penalty imposed by authority having the
direct or indirect power of tax (including any city, country, state or federal
government, or any school, agricultural, lighting, drainage or other improvement
district thereof) as against any legal or equitable interest of Landlord in the
Premises, the Building, the Lot or the Park, as against Landlord's right to rent
or as against Landlord's business of leasing the Premises or the occupancy of
Tenant or any other tax, fee or excise, however described, including, but not
limited to, any value added tax, or any tax imposed in substitution (partially
or totally) of any tax previously included within the definition of real
property taxes, or any additional tax the nature of which was previously
included within the definition of real property taxes. The term "Tax Expenses"
shall not include any franchise, estate, inheritance, net income, or excess
profits tax imposed upon Landlord.
6.4 PAYMENT OF EXPENSES: Landlord shall estimate Tenant's Share of the Operating
Expenses and Tax Expenses for the calendar year in which the Lease commences.
Commencing on the Commencement Date, one twelfth (1/12th) of this estimated
amount shall be paid by Tenant to Landlord, as Additional Rent, and thereafter
on the first (1st) day of each month throughout the remaining months of such
calendar year. Thereafter, Landlord may estimate such expenses as of the
beginning of each calendar year during the Term of this Lease and Tenant shall
pay one-twelfth (1/12th) of such estimated amount as Additional Rent hereunder
on the first (1st) day of each month during such calendar year and for each
ensuing calendar year throughout the Term of this Lease. Tenant's obligation to
pay Tenant's Share of Operating Expenses and Tax Expenses shall survive the
expiration or earlier termination of this Lease.
6.5 ANNUAL RECONCILIATION: By June 30th of each calendar year, or as soon
thereafter as reasonably possible Landlord shall endeavor to furnish Tenant with
an accounting of actual Operating Expenses and Tax Expenses. Within thirty (30)
days of Landlord's delivery of such accounting, Tenant shall pay to Landlord the
amount of any underpayment. Notwithstanding the foregoing, failure by Landlord
to give such accounting by such date shall not constitute a waiver by Landlord
of its right to collect any of Tenant's underpayment at any time. Landlord shall
credit the amount of any overpayment by Tenant toward the next estimated monthly
installment(s) falling due, or where the Term of the Lease has expired, refund
the amount of overpayment to Tenant. If the term of the Lease expires prior to
the annual reconciliation of expenses, Landlord shall have the right to
reasonably estimate Tenant's Share of such expenses, and if Landlord determines
that an underpayment is due, Tenant hereby agrees that Landlord shall be
entitled to deduct such underpayment from Tenant's Security Deposit. If Landlord
reasonably determines that an overpayment has been made by Tenant, Landlord
shall refund such overpayment to Tenant as soon as practicable thereafter.
Notwithstanding the foregoing, failure of Landlord to accurately estimate
Tenant's Share of such expenses or to otherwise perform such reconciliation of
expenses, including without limitation, Landlord's failure to deduct any portion
of any underpayment from Tenant's Security Deposit, shall not constitute a
waiver of Landlord's right to collect any of Tenant's underpayment at any time
during the Term of the Lease or at any time after the expiration or earlier
termination of this Lease.
6.6 AUDIT: After delivery to Landlord of at least thirty (30) days prior written
notice, Tenant, at its sole cost and expense through any accountant designated
by it, shall have the right to examine and/or audit the books and records
evidencing such costs and expenses for the previous one (1) calendar year,
during Landlord's reasonable business hours but not more frequently than once
during any calendar year. Any such accounting firm designated by Tenant may not
be compensated on a contingency fee basis. The results of any such audit (and
any negotiations between the parties related thereto) shall be maintained
strictly confidential by Tenant and its accounting firm and shall not be
disclosed, published or otherwise disseminated to any other party other than to
Landlord and its authorized agents. Landlord and Tenant shall use their best
efforts to cooperate in such negotiations and to promptly resolve any
discrepancies between Landlord and Tenant in the accounting of such costs and
expenses.
7. UTILITIES: Utility Expenses, Common Area Utility Costs and all other sums or
charges set forth in this Section 7 are considered part of Additional Rent. In
addition to the Base Rent set forth in Section 3 hereof, Tenant shall pay the
cost of all water, sewer use, sewer discharge fees and sewer connection fees,
gas, heat, electricity, refuse pickup, janitorial service, telephone and other
utilities billed or metered separately to the Premises and/or Tenant. Tenant
shall also pay Tenant's Share of any assessments or charges for utility or
similar purposes included within any tax xxxx for the Lot on which the Premises
are situated, including, without limitation, entitlement fees, allocation unit
fees, and/or any similar fees or charges, and any penalties related thereto. For
any such utility fees or use charges that are not billed or metered separately
to Tenant, including without limitation, water and refuse pick up charges,
Tenant shall pay to Landlord, as Additional Rent, without prior notice or
demand, on the Commencement Date and thereafter on the first (1st) day of each
month throughout the balance of the Term of this Lease the amount which is
attributable to Tenant's use of the utilities or similar services, as reasonably
estimated and determined by Landlord based upon factors such as size of the
Premises and intensity of use of such utilities by Tenant such that Tenant shall
pay the portion of such charges reasonably consistent with Tenant's use of such
utilities and similar service ("Utility Expenses"). If Tenant disputes any such
estimate or determination, then Tenant shall either pay the estimated amount or
cause the Premises to be separately metered at Tenant's sole expense. In
addition, Tenant shall pay to Landlord Tenant's Share of any Common Area utility
costs, fees, charges or expenses ("Common Area Utility Costs"). Tenant shall pay
to Landlord one-twelfth (1/12th) of the estimated amount of Tenant's Share of
the Common Area Utility Costs on the Commencement Date and thereafter on the
first (1st) day of each month throughout the balance of the Term of this Lease
and any reconciliation thereof shall be substantially in the same manner as
specified in Section 6.5 above. The amount of Tenant's Share of Common Area
Utility Costs shall be reviewed from time to time by Landlord and shall be
subject to modification by Landlord if there is a change in the rentable square
foot of the Premises, the Building and/or the Park. Tenant acknowledges that the
Premises may become subject to the rationing of utility services or restrictions
on utility use as required by a public utility
company, governmental agency or other similar entity having jurisdiction
thereof. Notwithstanding any such rationing or restriction on use of any such
utility services, Tenant acknowledges and agrees that its tenancy and occupancy
hereunder shall be subject to such rationing restrictions as may be imposed upon
Landlord, Tenant, the Premises, the Building or the Park, and Tenant shall in no
event be excused or relieved from any covenant or obligation to be kept or
performed by Tenant by reason of any such rationing or restrictions. Tenant
further agrees to timely and faithfully pay, prior to delinquency, any amount,
tax, charge, surcharge, assessment or imposition levied, assessed or imposed
upon the Premises, or Tenant's use and occupancy thereof. Notwithstanding
anything to the contrary contained herein, if permitted by applicable Laws,
Landlord shall have the right at any time and from time to time during the Term
of this Lease to either contract for service from a different company or
companies (each such company shall be referred to herein as an "Alternate
Service Provider") other than the company or companies presently providing
electricity service for the Building or the Park (the "Electric Service
Provider") or continue to contract for service from the Electric Service
Provider, at Landlord's sole discretion. Tenant hereby agrees to cooperate with
Landlord, the Electric Service Provider, and any Alternate Service Provider at
all times and, as reasonably necessary, shall allow Landlord, the Electric
Service Provider, and any Alternate Service Provider reasonable access to the
Building's electric lines, feeders, risers, wiring, and any other machinery
within the Premises.
8. LATE CHARGES: Any and all sums of charges set forth in this Section 8 are
considered part of Additional Rent. Tenant acknowledges that late payment (the
fifteenth day of each month or any time thereafter) by Tenant to Landlord of
Base Rent, Tenant's Share of Operating Expenses, Tax Expenses, Common Area
Utility Costs, and Utility Expenses, Administrative Expenses, or the other sums
due hereunder, will cause Landlord to incur cost not contemplated by this Lease,
the exact amount of such costs being extremely difficult and impracticable to
fix. Such cost include, without limitation, processing and accounting charges,
and late charges that may be imposed on Landlord by the terms of any note
secured by any encumbrance against the Premises, and late charges and penalties
due to late payment of real property taxes on the Premises. Therefore, if any
installment of Rent or any other sum due from Tenant is not received by Landlord
when due, Tenant shall promptly pay to Landlord all of the following, as
applicable: (a) an additional sum equal to five percent (5%) such delinquent
amount plus interest on such delinquent amount at the rate equal to the prime
rate plus three percent (3%) for the time period such payments are delinquent as
a late charge for every month or portion thereof that such sums remain unpaid,
(b) the amount of seventy five dollars ($75) for each three-day notice prepared
for or served on, Tenant, (c) the amount of fifty dollars ($50) relating to
checks for which there are not sufficient funds. If Tenants delivers to Landlord
a check for which there are not sufficient funds, Landlord may, at its sole
option, require Tenant to replace such check with a cashier' s check for the
amount of such check and all other charges payable hereunder. The parties agree
that this late charge and the other charges referenced above represent a fair
and reasonable estimate of the costs that Landlord will incur by reason of late
payment by Tenant. Acceptance of any late charge or other charges shall not
constitute a waiver by Landlord of Tenant's default with respect to the
delinquent amount, nor prevent Landlord from exercising any of the other rights
and remedies available to Landlord for any other breach of Tenant under this
Lease. If a late charge or other charge becomes payable for any three (3)
installments of Rent within any twelve (12) month period, then Landlord, at
Landlord's sole option, can either require the Rent be paid quarterly in
advance, or be paid monthly in advance by cashier's check or by electronic funds
transfer.
9. USE OF PREMISES:
9.1 COMPLIANCE WITH LAWS, RECORDED MATTERS, AND RULES AND REGULATIONS:
The Premises are to be used solely for the purposes and uses specified in the
Basic Lease Information and for no other uses or purposes without Landlord's
prior written consent, which consent shall not be unreasonably withheld or
delayed so long as proposed used (i) does not involve the used of Hazardous
Materials other than as expressly permitted under the provisions of Xxxxxxx 00
xxxxx, (xx) does not require any additional parking in excess of the parking
spaces already licensed to Tenant pursuant to the provisions of Section 24 of
this Lease, and (iii) is compatible and consistent with the other uses then
being made in the Park and in other similar types of buildings in the vicinity
of the Park, as reasonably determined by Landlord. The uses of the Premises by
Tenant and its employees, representative, agents, invitees, licensees,
subtenants, customers or contractors (collectively, "Tenant's Representative")
shall be subject to, and at all times in compliance with, (a) any and all
applicable laws, ordinances, statutes, orders, and regulations as same exist
from time to time (collectively the "Laws"), (b) any and all documents, matters
or instruments, including without limitation, any declarations of covenants,
conditions and restrictions, and any supplements thereto, each of which has been
or hereafter is recorded in any official or public records with respect to the
Premises, the Building, the Lot and/or the Park, or any portion thereof
(collectively, the "Recorded Matters"), and (c) any and all rules and
regulations set forth in Exhibit C, attached to and made a part of this Lease,
and any other reasonable rules and regulations promulgated by Landlord now or
hereafter enacted relating to parking and the operation of the Premises, the
Building and the Park (collectively, the "Rules and Regulations"). Tenants
agrees to, and does hereby, assume full and complete responsibility to ensure
that the Premises are adequate to fully meet the needs and requirements of
Tenant's intended operations of its business within the Premises, and Tenant's
use of the Premises and that same are in
compliance with all applicable Laws throughout the Term of this Lease.
Additionally, Tenant shall be solely responsible for the payment of all costs,
fees and expenses associated with any modifications, improvements or alterations
to the Premises, Building, the Common Areas and/or the Park occasioned by the
enactment of, or changes to, any Laws arising form Tenant's particular use of
the Premises or alterations, improvements or additions made to the Premises
regardless of when such Laws became effective.
9.2 PROHIBITION ON USE: Tenant shall not use the Premises or permit
anything to be done in or about the Premises nor keep or bring anything therein
which will in any way conflict with any of the requirements of the Board of Fire
Underwriters or similar body now or hereafter constituted or in any way increase
the existing rate of or affect any policy of fire or other insurance upon the
Building or any of its content, or cause a cancellation of any insurance policy.
No auctions may be held or otherwise conducted in, or about the Premises, the
Building, the Lot or the Park without Landlord's written consent thereto, which
consent may be given or withheld in Landlord's sole discretion. Tenants shall
not do or permit anything to be done in or about the Premises which will any way
obstruct or interfere with the rights of Landlord, other tenants or occupants of
the Building, other buildings in the Park, or other persons or business in the
area, or injure or annoy other tenants or use or allow the Premises to be used
for any unlawful or objectionable purpose, as determined by Landlord, in its
reasonable discretion, for the benefit quite enjoyment and use by Landlord and
all other tenants or occupants of the Building or other buildings in the Park;
nor shall Tenant cause, maintain or permit any private or public nuisance in, on
or about the Premises, Building, Park and/or the Common Areas, including, but
not limited to, any offensive odors, noises, fumes or vibrations. Tenant shall
not damage or deface or otherwise commit or suffer to be committed any waste in,
upon or about the Premises. Tenant shall not place or store, nor permit any
other person or entity to place or store, any property, equipment materials,
supplies, personal property or any other items or good outside of the Premises
for any period of time. Tenant shall not permit any animals, including, but not
limited to, any household pets, to be brought or kept in or about the Premises.
Tenant shall place no loads upon the floors, walls, or ceilings in excess of the
maximum designed load permitted by the applicable Uniform Building Code or which
may damage the Building or outside areas; nor place any harmful liquids in the
drainage systems; nor dump or store waste materials, refuse or other such
materials, or allow such to remain outside the Building area, except for any
non-hazardous or non-harmful materials which may be stored in refuse dumpsters
or in any enclosed trash areas provided. Tenant shall honor the terms of all
Record Matters relating to the Premises, the Building, the Lot and/or the Park.
Tenant shall honor the Rules and Regulations. If Tenant fails to comply with
such Laws, Recorded Matters, Rules and Regulations or the provisions of this
Lease, Landlord shall have the right to collect from Tenant a reasonable sum as
a penalty, in addition to all rights and remedies of Landlord hereunder
including, but not limited to, the payment by Tenant to Landlord of all
Enforcement Expenses and Landlord's costs and expenses, if any to cure any such
failures of Tenant, if Landlord, at its sole option, elects to undertake such
cure.
10. ALTERATIONS AND ADDITIONS; AND SURRENDER OF PREMISES:
10.1 ALTERATIONS AND ADDITIONS: Tenants shall not install any signs,
fixtures, improvements nor make or permit any other alterations or additions to
the Premises in excess of $5,000.00 without the prior written consent of
Landlord. If any such alternation or addition is expressly permitted by
Landlord, Tenant shall deliver at least twenty (20) days prior notice to
Landlord, from the date Tenant intends to commence construction, sufficient to
enable Landlord to post a Notice of Non-Responsibility. In all events, Tenants
shall obtain all permits or other governmental approvals prior to commencing any
of such work and deliver a copy of same to Landlord. All alterations and
additions shall be installed by a licensed contractor approved by Landlord, at
Tenant's sole expense in compliance with all applicable Laws (including, but not
limited to, the ADA as defined herein), Recorded Matters, and Rules and
Regulations. Tenant shall keep the Premises and the property on which the
Premises are situated free from any liens arising out of any work performed,
materials furnished or obligations incurred by or on behalf of Tenant. As a
condition to Landlord's consent to the installation of any fixtures, additions
or other improvements, Landlord may require Tenant to post and obtain a
completion and indemnity bond for up to one hundred fifty percent (150%) of the
cost of the work.
10.2 SURRENDER OF PREMISES: Upon the termination of this Lease, whether
by forfeiture, lapse of the time or otherwise, or upon the termination of
Tenant's right to possession of the Premises, Tenant will at once surrender and
deliver up the Premises, together with the fixtures (other than trade fixtures),
additions and improvements which Landlord has notified Tenant, in writing, that
Landlord will require Tenant not to remove, to Landlord in good condition and
repair (including, but not limited to, replacing all light bulbs and ballasts
not in good working condition) and in the condition in which the Premises
existed as of the Commencement Date, except for reasonable wear and tear.
Reasonable wear and tear shall not include any damage or deterioration to the
floors of the Premises arising from the use of the forklifts in, on or about the
Premises (including, without limitation, any marks or stains of any portion of
the floors), and any damage or deterioration that would have been prevented by
proper maintenance by Tenant or Tenant otherwise performing all of its
obligations under this Lease. Upon such termination of this Lease, Tenant shall
remove all tenant signage, trade fixtures, furniture, furnishings, personal
property, additions and other improvements unless Landlord request, in writing,
that
Tenant not remove some or all of such fixtures (other than trade fixtures),
additions or improvements installed by, or on behalf of Tenant or situated in or
about the Premises. By the date which is twenty (20) days prior to such
termination of this Lease, Landlord shall notify Tenant in writing of those
fixtures (other than trade fixtures), alterations, additions, and other
improvements which Landlord shall require Tenant not to remove the Premises.
Tenant shall repair any damage caused by the installation or removal of such
signs, trade fixtures, furnishings, additions and improvements which are to be
removed from the Premises by the Tenant hereunder. If Landlord fails to so
notify Tenant at least twenty (20) days prior to such termination of this Lease,
then Tenant shall remove all tenant signage, alterations, furniture,
furnishings, trade fixtures, additions and other improvements installed in or
about the Premises by, or on behalf of Tenant. Tenant shall ensure that the
removal of such items and the repair of the Premises will be completed prior to
such termination of this Lease.
11. REPAIRS AND MAINTENANCE:
11.1 TENANT'S REPAIRS AND MAINTENANCE OBLIGATIONS: Except for those
portions of the Building to be maintained by Landlord, as provide in Sections
11.2 and 11.3 below, Tenant shall, at Tenant's sole cost and expense, keep and
maintain the Premises and the adjacent dock and staging areas in good, clean and
safe conditions and repair to the satisfaction of Landlord including, but not
limited to repairing any damage caused by Tenant or Tenant's Representatives and
replacing any property so damaged by Tenant or Tenant's Representatives. Without
limiting the generality of the foregoing, Tenant shall be solely responsible for
maintaining, repairing and replacing (a) all mechanical systems, heating,
ventilation and air conditioning systems exclusively serving the Premises not to
exceed $650 per each single repair, (b) all plumbing, electrical wiring and
equipment serving the Premises, (c) all interior lighting (including, without
limitation, light bulbs and/or ballasts) and exterior lighting serving the
Premises or adjacent to the Premises, (d) all glass, windows, window frames,
window casements, skylights, interior and exterior doors, door frames and door
closers, (e) all roll-up doors, ramps and dock equipment, including without
limitation, dock bumpers, dock plates, dock seals, dock levelers and dock lights
(f) all tenants signage, (g) lifts for disabled persons serving the Premises,
(h) sprinkler systems fire protection systems and security systems. (i) all
partitions, fixtures, equipment, interior painting, and interior walls and
floors of the Premises and every part thereof (including, without limitation,
any demising walls contiguous to any portion of the Premises).
11.2 REIMBURSABLE REPAIRS AND MAINTENANCE OBLIGATIONS: Subject to the
provisions of Section 6 and 9 of this Lease and except for (i) the obligations
of Tenants set forth in Section 11.1 above, (ii) the obligations of Landlord set
forth in Section 11.3 below, and (iii) the repairs rendered necessary by the
intentional or negligent acts or omissions of Tenant or any Tenant's
Representatives, Landlord agrees, at Landlord's expense, subject to
reimbursement pursuant to Section 6 above, to keep in good repair the plumbing
and mechanical systems exterior to the Premises, any rail spur and rail
crossing, the roof, roof membranes, exterior walls of the Building, signage
(exclusive of tenant signage), and exterior electrical wiring and equipment,
exterior lighting, exterior glass, exterior doors/entrances and door closers
exterior window casements, exterior painting of the Building (exclusive of the
Premises), and underground utility and sewer pipes outside the exterior walls of
the Building. For purpose of this Section 11.2 the term "exterior" shall mean
outside of and not exclusively serving the Premises. Unless otherwise notified
by Landlord, in writing, that Landlord has elected to procure and maintain the
following described contract(s), Tenant shall procure and maintain (a) the
heating, ventilation and air conditioning systems preventative maintenance and
repair contract(s); such contract(s) to be on a bi-monthly or quarterly basis,
as reasonably determined by Landlord, and (b) the fire and sprinkler protection
services and preventative maintenance and repair contract(s), (including,
without limitation, monitoring services); such contract(s) to be on a bi-monthly
or quarterly basis, as reasonably determined by Landlord. Landlord reserves the
right, but without the obligations to do so, to procure and maintain (i) the
heating, ventilation and air conditioning systems preventative maintenance and
repair contract(s).and/or (ii) the fire and sprinkler protection services and
preventative maintenance and repair contract(s)(including, without limitation,
monitoring services). If Landlord so elects to procure and maintain any such
contract(s), Tenant will reimburse Landlord for the cost thereof in accordance
with the provisions of Section 6 above. If Tenant procures and maintains any
such contract(s), Tenant will promptly deliver to Landlord a true and complete
copy each such contract and any all renewals or extensions thereof, and each
service report or other summary received by Tenant pursuant to or in connection
with such contract(s).
11.3 LANDLORD'S REPAIR AND MAINTENANCE OBLIGATIONS: Except for repairs
rendered necessary by the intentional or negligent acts or omissions of Tenant
or any Tenant's Representatives. Landlord agrees, at Landlord's sole cost and
expense, to (a) keep in good repair the structural portions of the floors,
foundations and exterior perimeter walls of the Building (exclusive of glass and
exterior doors), and (b) replace the structural portions of the roof of the
Building (excluding the roof membrane) as, and when, Landlord determines such
replacements to be necessary in Landlord's sole discretion.
11.4 TENANT'S FAILURE TO PERFORM REPAIRS AND MAINTENANCE OBLIGATIONS:
Except for normal maintenance and repair of the items described above, Tenant
shall have no right of access to or right to install
any device on the roof of the Building nor make any penetrations of the roof of
the Building without the express prior written consent of Landlord. If Tenant
refuses or neglects to repair and maintain the Premises and the adjacent areas
properly as required herein and to the reasonable satisfaction of Landlord,
Landlord may, but without obligation to do so at any time make such repairs
and/or maintenance without Landlord having any liability to Tenant for any loss
or damage that may accrue to Tenant's merchandise, fixtures or other property,
or to Tenant's business by reason thereof, except to the extent any damage is
caused by the willful misconduct or gross negligence of Landlord or its
authorized agents and representatives. In the event Landlord makes such repairs
and/or maintenance, upon completion thereof Tenant shall pay to Landlord, as
additional rent, the Landlord's cost for making such repairs and/or maintenance,
plus twenty percent (20%) for overhead, upon presentation of a xxxx thereof,
plus any Enforcement Expenses. The obligations of Tenant hereunder shall survive
the expiration of the Term of this Lease or the earlier termination thereof.
Tenants hereby waives any right to repair at the expenses of Landlord under any
applicable Laws now or hereafter in effect respecting the Premises.
12. INSURANCE:
12.1 TYPES OF INSURANCE: Tenant shall maintain in full force and effect
at all times during the Term of this Lease, at Tenant's sole cost and expense,
for the protection of Tenant and Landlord, as their interest may appear,
policies of insurance issued by a carrier or carriers reasonably acceptable to
Landlord and its lender(s) which afford the following coverage (i) worker's
compensation: statutory limits; (ii) employer's liability, as required by law,
with a minimum limit of $100,000 per employee and $500,000 per occurrence; (iii)
commercial general liability insurance (occurrence form) providing coverage
against any and all claims for bodily injury and property damage occurring in,
on or about the Premises arising out of Tenant's and Tenant's Representatives'
use and/or occupancy of the Premises. Such insurance shall include coverage for
blanket contractual liability, fire damage, premises, personal injury, completed
operations, products liability, personal and advertising, and a plate-glass
rider to provide coverage for all glass in, on or about the Premises including,
without limitation, skylights. Such insurance shall have combined single limit
of not less than One Million Dollars ($1,000,000) per occurrence with a Two
Million Dollar ($2,000,000) aggregate limit and excess/umbrella insurance in the
amount of Two Million Dollars ($2,000,000). If Tenants has other locations which
it owns or leases, the policy shall include an aggregate limit per location
endorsement. If necessary, as reasonably determined by Landlord, Tenant shall
provide for restoration of the aggregate limit; (iv) comprehensive automobile
liability insurance: a combined single limit of not less than $2,000,000 per
occurrence and insuring Tenant against liability for claims arising out of the
ownership, maintenance, or use of any owned, hired or non-owned automobiles; (v)
"all risk" or "special purpose" property assurance, including without limitation
, sprinkle leakage, boiler and machinery comprehensive form, if applicable,
covering damage to or loss of any personal property, trade fixtures, inventory,
fixtures and equipment located in on or about the Premises, and in addition,
coverage for flood, earthquake, and business interruption of Tenant, together
with , if the property of Tenant's invitees is to be kept in the Premises,
warehouser's legal liability or bailee customer insurance for the full
replacement cost of the property belonging to invitees and located in the
Premises. Such insurance shall be written on a replacement cost basis (without
deduction for depreciation) in an amount equal to one hundred percent (100%) of
the full replacement value of the aggregate of the items referred to in this
subparagraph (v); and (vi) such other insurance as Landlord deems necessary and
prudent or as may otherwise be required by any of Landlord's lenders or joint
venture partners.
12.2 INSURANCE POLICIES: Insurance required to be maintained by Tenant
shall be written by companies (i) licensed to do business in the State of
California (ii) domiciled in the United States of America, and (iii) having a
"General Policyholders Rating" of at least A:X (or such higher rating as may be
required by a lender having a lien on the Premises) as a set forth in the most
current issue of "A.M. Best's Rating Guides." Any deductible amounts under any
of the insurance policies required hereunder shall not exceed One Thousand
Dollars ($1,000). Tenant shall deliver to Landlord certificates of insurance and
true and complete copies of any and all endorsements required herein for all
insurance required to be maintained by Tenant hereunder at the time of execution
of this Lease by Tenant. Tenant shall, at least thirty (30) days prior to
expiration of each policy, furnish Landlord with certificates of renewal or
"binders" thereof. Each certificate shall expressly provide that such policies
shall not be cancelable or otherwise subject to modification except after thirty
(30) days prior written notice to the parties named as additional insured as
required in this Lease (except for cancellation for nonpayment of premium, in
which event cancellation shall not take effect until at least ten (10) days'
notice has been given to Landlord). Tenant shall have the right to provide
insurance coverage which it is obligated to carry pursuant to the terms of this
Lease under a blanket policy expressly affords coverage for the Premises and for
Landlord as required by this Lease.
12.3 ADDITIONAL INSUREDS AND COVERAGE: Landlord, any property management
company and/or agent of Landlord for the Premises, the Building, the Lot or the
Park, and any lender(s) of Landlord having a lien against the Premises, the
Building, the Lot or the Park shall be named as additional insureds under all of
the policies required in Section 12.1 (iii) above. Additionally, such policies
shall provide for severability of interest.
All insurance to be maintained by Tenant shall, except for workers compensation
and employer's liability, be primary, without right of contribution from
insurance maintained by Landlord. Any umbrella/excess liability policy (which
shall be in "following form") shall provide that if the underlying aggregate is
exhausted, the excess coverage will drop down as primary insurance. The limits
of insurance maintained by Tenant shall not limit Tenant's liability under this
Lease. It is the parties' intention that the insurance to be procured and
maintained by Tenant as required herein shall provide coverage for any and all
damage or injury arising from or related to Tenant's operations of its business
and/or Tenant's or Tenant's Representatives' use of the Premises and/or any of
the areas within the Park, whether such events occur within the Premises (as
described in Exhibit A hereto) or in any other areas of the Park. It is not
contemplated or anticipated by the parties that the aforementioned risks of loss
be borne by Landlord's insurance carriers, rather it is contemplated and
anticipated by Landlord and Tenant that such risks of loss be borne by Tenant's
insurance carriers pursuant to the insurance policies procured and maintained by
Tenant as required herein.
12.4 FAILURE OF TENANT TO PURCHASE AND MAINTAIN INSURANCE: In the event
Tenant does not purchased the insurance required in this Lease or keep the same
in full force and effect throughout the Term of this Lease (including any
renewals or extension), Landlord may, but without obligation to do so, purchased
the necessary insurance and pay the premiums therefor. If Landlord so elects to
purchase such insurance, Tenant shall promptly pay to Landlord as Additional
Rent, the amount so paid by Landlord, upon Landlord demand therefor. In
addition, Landlord may recover from Tenant and Tenant agrees to pay, as
Additional Rent, any and all Enforcement Expenses and damages which Landlord may
sustain by reason of Tenant's failure to obtain and maintain such insurance. If
Tenant fails to maintain any insurance required in this Lease, Tenant shall be
liable for all losses, damages and costs resulting from such failure.
13. WAIVER OF SUBROGATION: Landlord and Tenant hereby mutually waive their
respective rights of recovery against each other for any loss of, or damage to,
either parties' property to the extend that such loss or damage is insured by
insurance policy required to be in effect at the time of such loss or damage.
Each party shall obtain any special endorsements, if required by its insurer
whereby the insurer waives its right of subrogation against the other party.
This provision is intended to waive fully, and for the benefit of the parties
hereto, any rights and/or claims which might give rise to a right of subrogation
in favor of any insurance carrier. The coverage obtained by Tenant pursuant to
Section 12 of this Lease shall include, without limitation, a waiver of
subrogation endorsement attached to the certificate of insurance. The provisions
of this Section 13 shall not apply in those instances in which such waiver of
subrogation would invalidate such insurance coverage or would cause either
party's insurance coverage to be voided or otherwise uncollectible.
14. LIMITATION OF LIABILITY AND INDEMNITY: Except to the extent of damage
resulting from the sole active gross negligence or willful misconduct of
Landlord or its authorized representatives, Tenant agrees to protect, defend
(with counsel acceptable to Landlord) and hold Landlord and Landlord's lenders,
partners, members, property management company (if other than Landlord), agents,
directors, officers, employees, representatives, contractors, shareholder,
successors and assigns and each of their respective partner, members, directors,
employees, representatives, agents, contractors, shareholders, successors, and
assigns (collectively, the "Indemnities") harmless and indemnify the Indemnities
from and against all liabilities, damages, claims, losses, judgments, charges
and expenses (including reasonable attorneys' fees, cost of court and expenses
necessary in the prosecution or defense of any litigation including the
enforcement of this provision) arising from or in any way related to, directly
or indirectly, (i) Tenant's or Tenant's Representatives use of the Premises,
Building and /or the Park, (ii) the conduct of Tenant's business, (iii) from any
activity, work or thing done, permitted to suffered by Tenant in or about the
Premises, (iv) in any way connected with the Premises or with the improvements
or personal property therein, including, but not limited to, any liability for
injury to person or property of Tenant, Tenant's Representative, or third party
person, and/or (v) Tenant's failure to perform any covenant or obligation of
Tenant under this Lease. Tenant agrees that the obligations of Tenants herein
shall survive the expiration or earlier termination of this Lease.
Except to the extent of damage resulting from the sole active gross
negligence or willful misconduct of Landlord or its authorized representatives,
to the fullest extent permitted by law, Tenants agrees that neither Landlord nor
any of Landlord's lender(s), partner, members, employees, representatives, legal
representatives, successors or assigns shall at any time or to any extent
whatsoever be liable, responsible or in any way accountable for any loss,
liability, injury, death or damage to persons or property which at any time may
be suffered or sustained by Tenant or by any person(s) whomsoever, who may at
any time be using, occupying or visiting the Premises, the Building or the Park,
including, but not limited to, any acts, errors or omissions by or on behalf of
any other tenants or occupants of the Building and/or the Park. Tenants shall
not in any event or circumstance, be permitted to offset or otherwise credit
against any payments of Rent required herein for matters for which Landlord may
be liable hereunder. Landlord and its authorized representatives shall not be
liable for any interference with light or air, or for any latent defect in the
Premises or the Building.
15. ASSIGNMENT AND SUBLEASING:
15.1 PROHIBITION: Tenant shall not assign, mortgage, hypothecate,
encumber, grant any license or concession, pledge or otherwise transfer this
Lease (collectively, "assignment"), in whole or in part whether voluntarily or
involuntarily or by operation of law, nor sublet or permit occupancy by any
person other than tenant of all or any portion of the Premises without first
obtaining the prior written consent of Landlord, which consent shall not be
unreasonably withheld. Tenant hereby agrees that Landlord may withhold its
consent to any proposed sublease or assignment if the proposed sublease or
assignment if the proposed sublessee or assignee or its business is subject to
compliance with additional requirements of the ADA (defined below) and/or
Environmental Laws (defined below) beyond those requirements which are
applicable to Tenant, unless the proposed sublessee or assignee shall (a) first
deliver plans and specifications for complying with such additional requirements
and obtain Landlord's written consent thereto, and (b) comply with all the
Landlord's conditions for or contained in such consent, including without
limitation, requirements for security to assure the lien-free completion of such
improvements. If Tenants seeks to sublet or assign all or any portion of the
Premises, Tenants shall deliver to Landlord at least thirty (30) days prior to
the proposed commencement of the sublease or assignment (the "Proposed Effective
Date") the following: (i) the name of the proposed assignee or sublessee; (ii)
such information as to such assignee's or sublessee's financial responsibility
and standing as Landlord may reasonably require; and (iii) the aforementioned
plans and specifications, if any. Within ten (10) days after Landlord's receipt
of a written request from Tenant that Tenant seeks to sublet or assign all or
any portion of the premises, Landlord shall deliver to Tenant a copy of
Landlord's standard form of sublease of assignment agreement (as applicable),
which instrument shall be utilized for each proposed sublease or assignment (as
applicable), and such instrument shall include a provision whereby the assignee
or sublessee assumes all of Tenant's obligations hereunder and agrees to be
bound by the terms hereof. As Additional Rent hereunder, Tenant shall pay to
Landlord a fee in the amount of one hundred dollars ($100) plus Tenant shall
reimburse Landlord for actual legal and other expenses incurred by Landlord in
connection with any actual or proposed assignment or subletting. In the event
the sublease or assignment (1) by itself or taken together with prior
sublease(s) or partial assignment(s) covers or totals, as the case may be, more
than twenty-five percent (25%) of the rentable square feet of the Premises or
(2) is for a term which by itself or taken together with prior or other
subleases or partial assignment is greater than fifty percent (50%) of the
period remaining in the Term of this Lease as of the time of the Proposed
Effective Date, then Landlord shall have the right, to be exercised by giving
written notice to Tenant, to recapture the space described in the sublease or
assignment. If such recapture notice is given, it shall serve to terminate this
Lease with respect to the proposed sublease or assignment space, or, if the
proposed sublease or assignment space covers all the Premises, it shall serve to
terminate the entire term of this Lease in either case, as of the Proposed
Effective Date. However, no termination of this Lease with respect to part or
all of the Premises shall become effective without the prior written consent,
where necessary, of the holder of each deed of trust encumbering the Premises or
any part thereof. If this Lease is terminated pursuant to the foregoing with
respect to less than the entire Premises, the Rent shall be adjusted on the
basis of the proportion of square feet retained by Tenant to the square feet
originally demised and this Lease as so amended shall continue thereafter in
full force and effect. Each permitted assignee or sublessee shall assume and be
deemed to assume this Lease and shall be and remain liable jointly and severally
with Tenant for payment of Rent and for the due performance of, and compliance
with all the terms, covenants, conditions, and agreements herein contained on
Tenant's part to be performed or complied with, for the term of this Lease. No
assignment or subletting shall affect the continuing primary liability of Tenant
(which, following assignment, shall be joint and several with the assignee), and
Tenant shall not be released from performing any of the terms, covenants and
conditions of this Lease. Tenant hereby acknowledges and agrees that it
understands that Landlord's accounting department may process and accept Rent
payments without verifying that such payments are being made by Tenant, a
permitted sublessee or a permitted assignee in accordance with the provisions of
this Lease. Although such payments may be processed and accepted by such
accounting department personnel, any and all actions or omissions by the
personnel of Landlord's accounting department shall not be considered as
acceptance by Landlord of any proposed assignee or sublessee nor shall such
actions or omissions be deemed to be a substitute for the requirement that
Tenant obtain Landlord's prior written consent to any such subletting or
assignment, and any such actions or omissions by the personnel of Landlord's
accounting department shall not be considered as a voluntary relinquishment by
Landlord of any of its rights hereunder nor shall any voluntary relinquishment
of such rights be inferred therefrom. For purposes hereof, in the event Tenant
is a corporation, partnership, joint venture, trust or other entity other than a
natural person, any change in the direct or indirect ownership of Tenant
(whether pursuant to one or more transfers) which results in a change of more
than fifty percent (50%) in the direct or indirect ownership of Tenant shall be
deemed to be an assignment within the meaning of this Section 15 and shall be
subject to all the provisions hereof. Any and all options, first rights of
refusal, tenant improvement allowances and other similar rights granted to
Tenant in this Lease, if any, shall not be assignable by Tenant unless expressly
authorized in writing by Landlord.
15.2 EXCESS SUBLEASE RENTAL OR ASSIGNMENT CONSIDERATION: In the event of
any sublease or assignment of all or any portion of the Premises where the rent
or other consideration provided for in the sublease or assignment either
initially or over the term of the sublease or assignment exceeds the Rent or pro
rata portion of the Rent, as the case may be, for such space reserved in the
lease, Tenant shall pay the Landlord monthly, as Additional Rent, at the same
time as the monthly installments of Rent are payable hereunder, fifty percent
(50%) of the excess of each such payment of rent or other consideration in
excess of the Rent called for hereunder.
15.3 WAIVER: Notwithstanding any assignment or sublease, or any
indulgences, waivers or extensions of time granted by Landlord to any assignee
or sublessee, or failure by Landlord to take action against any assignee or
sublessee, Tenant waives notice of any default of any assignee or sublessee and
agrees that Landlord may, at its option, proceed against Tenant without having
taken action against or joined such assignee or sublessee, except that Tenant
shall have the benefit of any indulgences, waivers and extensions of the time
granted to any such assignee or sublessee.
16. AD VALOREM TAXES: Prior to delinquency, Tenant shall pay all taxes and
assessments levied upon trade fixtures, alterations, additions, improvements,
inventories and personal property located and/or installed on or in the Premises
by, or on behalf of, Tenant; and if requested by Landlord, Tenant shall promptly
deliver to Landlord copies of receipts for payment of all such taxes and
assessments. To the extent any such taxes are not separately assessed or billed
to Tenant, Tenant shall pay the amount thereof as invoiced by Landlord.
17. SUBORDINATION: Without the necessity of any additional document being
executed by Tenant for the purpose of effecting a subordination, and at the
election of Landlord or any bona fide mortgagee or deed of trust beneficiary
with a lien on all or any portion of the Premises or any ground lessor with
respect to the land of which the Premises are a part, the rights of Tenant under
this Lease and this Lease shall be subject and subordinate at all times to: (i)
all ground leases or underlying leases which may now exist or hereafter be
executed affecting the Building or the land upon which the Building is situated
or both, and (ii) the lien of any mortgage or deed or trust which may now exist
or hereafter be executed in any amount for which the Building, the Lot, ground
leases or underlying leases, or Landlord's interest or estate in any of said
items is specified as security. Notwithstanding the foregoing, Landlord or any
such ground lessor, mortgagee, or any beneficiary shall have the right to
subordinate or cause to be subordinated any such ground leases or underlying
leases or any such liens to this Lease. If any ground lease or underlying lease
terminates for any reason or any mortgage or deed of trust is foreclosed or a
conveyance in lieu of foreclosure is made for any reason, Tenant shall,
notwithstanding any subordination and upon the request of such successor to
Landlord, attorn to and become the Tenant of the successor in interest to
Landlord, provided such successor in interest will not disturb Tenant's use,
occupancy or quiet enjoyment of the Premises so long as Tenant is not in default
of the terms and provisions of this Lease. The successor in interest to Landlord
following foreclosure, sale or deed in lieu thereof shall not be (a) liable for
any act or omission of any prior lessor or with respect to events occurring
prior to acquisition of ownership; (b) subject to any offsets or defenses which
Tenant might have against any prior lessor; (c) bound by prepayment of more than
one (1) month's Rent, except in those instances when Tenant pays Rent quarterly
in advance pursuant to Section 8 hereof, then not more than three months' Rent;
(d) liable to Tenant for any Security Deposit not actually received by such
successor in interest to the extent any portion or all of such Security Deposit
has not already been forfeited by, or refunded to, Tenant. Landlord shall be
liable to Tenant for all or any portion of the Security Deposit not forfeited
by, or refunded to Tenant, until and unless Landlord transfers such Security
Deposit too the successor in interest. Tenant covenants and agrees to execute
(and acknowledge if required by Landlord, any lender or ground lessor) and
deliver, within five (5) days of a demand or request by Landlord and in the form
requested by Landlord, ground lessor, mortgagee or beneficiary, any additional
documents evidencing the priority or subordination of this Lease with respect to
any such ground leases or underlying leases or the lien of any mortgage or deed
of trust. Tenant's failure to timely execute and deliver such additional
documents shall, at Landlord's option, constitute a material default hereunder.
It is further agreed that Tenant shall be liable to Landlord, and shall
indemnify Landlord from and against any loss , cost, damage or expense,
incidental, consequential, or otherwise, arising or accruing directly or
indirectly, from any failure of Tenant to execute or deliver to Landlord any
such additional documents, together with any and all Enforcement Expenses.
18. RIGHT OF ENTRY: Tenant grants Landlord or its agents the right to enter
the Premises at all reasonable times for purposes of inspection, exhibition,
posting of notices, repair or alteration. At Landlord's option, Landlord shall
at all times have and retain a key with which to unlock all the doors in, upon
and about the Premises, excluding Tenant's vaults and safes. It is further
agreed that Landlord shall have the right to use any and all means Landlord
deems necessary to enter the Premises in an emergency. Landlord shall have the
right to place "for rent" or "for lease" signs on the outside of the Premises,
the Building and in the Common Areas. Landlord shall also have the right to
place "for sale" signs on the outside of the Building and in the Common Areas.
Tenant hereby waives any claim from damages or for any injury or inconvenience
to or interference with
Tenant's business, or any other loss occasioned thereby except for any claim for
any of the foregoing arising out of the sole active gross negligence or willful
misconduct of Landlord or its authorized representatives.
19. ESTOPPEL CERTIFICATE: Tenant shall execute (and acknowledge if required by
any lender or ground lessor) and deliver to Landlord, within five (5) days after
Landlord provides such to Tenant, a statement in writing certifying that this
Lease is unmodified and in full force and effect (or, if modified, stating the
nature of such modification), the date to which the Rent and other charges are
paid in advance, if any, acknowledging that there are not, to Tenant's
knowledge, any uncured defaults on the part of Landlord hereunder or specifying
such defaults as are claimed, and such other matters as Landlord may reasonably
require. Any such statement may be conclusively relied upon by Landlord and any
prospective purchaser or encumbrancer of the Premises. Tenant's failure to
deliver such statement within such time shall be conclusive upon the Tenant that
(a) this Lease is in full force and effect, without modification except as may
be represented by Landlord; (b) there are no uncured defaults in Landlord's
performance; and (c) not more than one month's Rent has been paid in advance,
except in those instances when Tenant pays Rent quarterly in advance pursuant to
Section 8 hereof, then not more than three month's Rent has been paid in
advance. Failure by Tenant to so deliver such certified estoppel certificate
shall be a material default of the provisions of this Lease. Tenant shall be
liable to Landlord, and shall indemnify Landlord from and against any loss,
cost, damage or expense, incidental, consequential, or otherwise, arising or
accruing directly or indirectly, from any failure of Tenant to execute or
deliver to Landlord any such certified estoppel certificate, together with any
and all Enforcement Expenses.
20. TENANT'S DEFAULT: The occurrence of any one or more of the following
events shall, at Landlord's option, constitute a material default by Tenant of
the provisions of this Lease:
20.1 The abandonment of the Premises by Tenant of the vacation of the
Premises by Tenant which would cause any insurance policy to be invalidated or
otherwise lapse. Tenant agrees to notice and service of notice as provided for
in this Lease and waives any right to any other or further notice or service of
notice which Tenant may have under any stature or law now or hereafter in
effect;
20.2 The failure by Tenant to make any payment of Rent, Additional Rent
or any other payment required hereunder on the date said payment is due. Tenant
agrees to notice and service of notice as provided for in this Lease and waives
any right to any other or further notice or service of notice which Tenant may
under any stature or law now or hereafter in effect;
20.3 The failure by Tenant to observe, perform or comply with any of the
conditions, covenants or provisions of this Lease (except failure to make any
payment of Rent and/or Additional Rent) and such failure is not cured within the
time period required under the provisions of this Lease. If such failure is
susceptible of cure but cannot reasonably be cured within the aforementioned
time period (if any), as determined solely by Landlord, Tenant shall promptly
commence the cure of such failure and thereafter diligently prosecute such cure
to completion within the time period specified by Landlord in any written notice
regarding such failure as may be delivered to Tenant by Landlord. In no event or
circumstance shall Tenant have more than fifteen (15) days to complete any such
cure, unless otherwise expressly agree to in writing Landlord (in Landlord's
sole discretion);
20.4 The making of a general assignment by Tenant for the benefit of
creditors, the filing of a voluntary petition by Tenant or the filing of an
involuntary petition by any of Tenant's creditors seeking the rehabilitation,
liquidation, or reorganization of Tenant under any law relating to bankruptcy,
insolvency or other relief of debtors and, in the case of an involuntary action,
the failure to remove or discharge the same within sixty (60) days of such
filing, the appointment of a receiver or other custodian to take possession of
substantially all of Tenant's assets or this leasehold, Tenant's insolvency or
inability to pay Tenant's debts or failure generally to pay Tenant's debts when
due, any court entering a decree or order directing the winding up or
liquidation of Tenant or of substantially all of Tenant's assets, Tenant taking
any action toward the dissolution or winding up of Tenant's affairs, the
cessation or suspension of Tenant's use of the Premises, or the attachment,
execution or other judicial seizure of substantially all of Tenant's assets or
this leasehold;
20.5 Tenant's use or storage of Hazardous Materials in, on or about the
Premises, the Building, the Lot and/or the Park other than as expressly
permitted by the provisions of Section 29 below; or
20.6 The making of any material misrepresentation of omission by Tenant
in any materials delivered by or on behalf of Tenant to Landlord pursuant to
this Lease.
21. REMEDIES FOR TENANT'S DEFAULT:
21.1 LANDLORD' RIGHTS: In the event or Tenant's material default under
this Lease, Landlord may terminate Tenant's right to possession of the Premises
by any lawful means in which case upon delivery of written notice by Landlord
this Lease shall terminate on the date specified by Landlord in such notice and
Tenant shall immediately surrender possession of the Premises to Landlord. In
addition, the Landlord shall have the immediate right of re-entry whether or not
this Lease is terminated, and if this right of re-entry is exercised following
abandonment of the Premises by Tenant, Landlord may consider any personal
property belonging to Tenant and left on the Premises to also have been
abandoned. No re-entry or taking possession of the Premises by Landlord pursuant
to this Section 21 shall be construed as an election to terminate this Lease
unless a written notice of such intention is given to Tenant. If Landlord relets
the Premises or any portion thereof, (i) Tenant shall be liable immediately to
Landlord for all costs Landlord incurs in reletting Premises or any part
thereof, including, without limitation, broker's commissions, expenses of
cleaning, redecorating, and further improving the Premises and other similar
costs (collectively, the "Reletting Costs"), and (ii) the rent received by
Landlord from such reletting shall be applied to the payment of, first, any
indebtedness from Tenant to Landlord other than Base Rent, Operating Expenses,
Tax Expenses, Administrative Expenses, Common Area Utility Costs, and Utility
Expenses; second, all costs including maintenance, incurred by Landlord in
reletting; and, third, Base Rent, Operating Expenses, Tax Expenses,
Administrative Expenses, Common Area Utility Costs, Utility Expenses, and all
other sums due under this Lease. Any and all of the Reletting Costs shall be
fully chargeable to Tenant and shall not be prorated or otherwise amortized in
relation to any new lease for the Premises or any portion thereof. After
deducting the payments referred to above, any sum remaining from the rental
Landlord receives from reletting shall be held by Landlord and applied in
payment of future Rent as Rent becomes due under this Lease. In no event shall
Tenant be entitled to any excess rent received by Landlord. Reletting may be for
a period shorter or longer than the remaining term of this Lease. No act by
Landlord other than giving written notice to Tenant shall terminate this Lease.
Acts of maintenance, efforts to relet the Premises or the appointment of a
receiver on Landlord's initiative to protect Landlord's interest under this
Lease shall not constitute a termination of Tenant's right to possession. So
long as this Lease is not terminated, Landlord shall have the right to remedy
any default of Tenant, to maintain or improve the Premises, to cause a receiver
to be appointed to administer the Premises and new or existing subleases and to
add to the Rent payable hereunder all of Landlord's reasonable costs in so
doing, with interest at the maximum rate permitted by law from the date of such
expenditure.
21.2 DAMAGES RECOVERABLE: If Tenant breaches this Lease and abandons the
Premises before the end of the Term, or if Tenant's right to possession is
terminated by Landlord because of a breach or default under this Lease, then in
either such case, Landlord may recover from Tenant all damages suffered by
Landlord as a result of Tenant's failure to perform its obligations hereunder,
including, but not limited to, the portion of any broker's or leasing agent's
commission incurred with respect to the leasing of the Premises to Tenant for
the balance of the Term of the Lease remaining after the date on which Tenant is
in default of its obligations hereunder, and all Reletting Costs and the worth
at the time of the award (computed in accordance with paragraph (3) of
Subdivision (a) of Section 1951.2 of the California Civil Code) of the amount by
which the Rent then unpaid hereunder for the balance of the Lease Term exceeds
the amount of such loss of Rent for the same period which Tenant proves could be
reasonably avoided by Landlord and in such case, Landlord prior to the award,
may relet the Premises for the purpose of mitigating damages suffered by
Landlord because of Tenant's failure to perform its obligations hereunder;
provided, however that even though Tenant has abandoned the Premises following
such breach, this Lease shall nevertheless continue in full force and effect for
as long as Landlord does not terminate Tenant's right of possession, and until
such termination, Landlord shall have the remedy described in Section 1951.4 of
the California Civil Code (Landlord may continue this Lease in effect after
Tenant's breach and abandonment and recover Rent as it becomes due, if Tenant
has the right to sublet or assign, subject only to reasonable limitations) and
may enforce all its rights and remedies under this Lease, including the right to
recover the Rent from Tenant as it becomes due hereunder. The "worth at the time
of the award" within the meaning of Subparagraphs (a)(1) and (a)(2) of Section
1951.2 of the California Civil Code shall be computed by allowing interest at
the rate of ten percent (10%) per annum. Tenant waives redemption or relief from
forfeiture under California Code of Civil Procedure Sections 1174 and 1179, or
under any other present or future law, in the event Tenant is evicted or
Landlord takes possession of the Premises by reason of any default of Tenant
hereunder.
21.3 RIGHTS AND REMEDIES CUMULATIVE: The foregoing right and remedies of
Landlord are not exclusive; they are cumulative in addition to any rights and
remedies now or hereafter existing at law, in equity by statute or otherwise, or
to any equitable remedies Landlord may have, and to any remedies Landlord may
have under bankruptcy laws or laws affecting creditor's rights generally. In
addition to all remedies set forth above, if Tenant materially defaults under
this Lease, any and all Base Rent waived by Landlord under Section 3 above shall
be immediately due and payable to Landlord and all options granted to Tenant
hereunder shall automatically terminate, unless otherwise expressly agreed to in
writing by Landlord.
21.4 WAIVER OF A DEFAULT: The waiver by Landlord of any default of any
provision of this Lease shall not be deemed or construed a waiver of any other
default by Tenant hereunder of any subsequent default of this Lease, except for
the default specified in the waiver.
22. HOLDING OVER: If Tenant holds possession of the Premises after the
expiration of the Term of this Lease with Landlord's consent, Tenant shall
become a tenant from month-to-month upon the terms and provisions of this Lease,
provided the monthly Base Rent during such hold over period shall be 150% of the
Base Rent due on the last month of the Lease Term, payable in advance on or
before the first day of each month. Acceptance by Landlord of the monthly Base
Rent without the additional fifty percent (50%) increase of Base Rent shall not
be deemed or construed as a waiver by Landlord of any of its rights to collect
the increased amount of the Base Rent as provided herein at any time. Such
month-to-month tenancy shall not constitute renewal or extension for any further
term. All options, if any, granted under the terms of this Lease shall be deemed
automatically terminated and be of no force or effect during said month-to-month
tenancy. Tenant shall continue in possession until such tenancy shall be
terminated by either Landlord or Tenant giving written notice of termination to
the other party at least thirty (30) days prior to the effective date of
termination. This paragraph shall not be construed as Landlord's permission for
Tenant to hold over. Acceptance of Base Rent by Landlord following expiration or
termination of this Lease shall not constitute a renewal of this Lease.
23. LANDLORD'S DEFAULT: Landlord shall not be deemed in breach or default of
this Lease unless Landlord fails within a reasonable time to perform an
obligation required to be performed by Landlord hereunder. For purposes of this
provision, a reasonable time shall not be less than thirty (30) days after
receipt by Landlord of written notice specifying the nature of the obligation
Landlord has not performed; provided, however, that if the nature of Landlord's
obligation is such that more than thirty (30) days, after receipt of written
notice, is reasonably necessary for its performance, then Landlord shall not be
in breach or default of this Lease if performance of such obligation is
commenced within such thirty (30) day period and thereafter diligently pursued
to completion.
24. PARKING: Tenant shall have a license to use the number of non-designated
and non-exclusive parking spaces specified in the Basic Lease Information.
Landlord shall exercise reasonable efforts to insure that such spaces are
available to Tenant for its use, but Landlord shall not be required to enforce
Tenant's right to use the same.
25. SALE OF PREMISES: In the event of any sale of the Premises by Landlord or
the cessation otherwise of Landlord's interest therein. Landlord shall be and is
hereby entirely released from any and all of its obligations to perform or
further perform under this Lease and from all liability hereunder accruing from
or after the date of such sale; and the purchaser, at such sale or any
subsequent sale of the Premises shall be deemed, without any further agreement
between the parties of their successors in interest or between the parties and
any such purchaser, to have assumed and agreed to carry out any and all of the
covenants and obligations of the Landlord under this Lease. For purposes of this
Section 25, the term "Landlord" means only the owner and/or agent of the owner
as such parties exist as of the date on which Tenant executes this Lease. A
ground lease or similar long term lease by Landlord of the entire Building, of
which the premises are a part, shall be deemed a sale within the meaning of this
Section 25. Tenant agrees to attorn to such new owner provided such new owner
does not disturb Tenant's use, occupancy or quiet enjoyment of the Premises so
long as Tenant is not in default of any of the provisions of this Lease.
26. WAIVER: No delay or omission in the exercise of any right or remedy of
Landlord on any default by Tenant shall impair such a right or remedy or be
construed as a waiver. The subsequent acceptance of Rent by Landlord after
default by Tenant of any covenant or term of this Lease shall not deemed a
waiver of such default, other than a waiver of timely payment of the particular
Rent payment involved, and shall not prevent Landlord from maintaining an
unlawful detainer or other action based on such breach. No payment by Tenant or
receipt by Landlord of a lesser amount than the monthly Rent and other sums due
hereunder shall be deemed to be other than on account of the earliest Rent of
other sums due, nor shall any endorsement or statement on any check or
accompanying any check or payment be deemed an accord and satisfaction; and
Landlord may accept such check or payment without prejudice to Landlord's right
to recover the balance of such Rent or other sum or pursue any other remedy
provided in this Lease. No failure, partial exercise or delay on the part of the
Landlord in exercising any right, power or privilege hereunder shall operate as
a waiver thereof.
27. CASUALTY DAMAGE: If the Premises or any part thereof shall be damaged by
fire or other casualty, Tenant shall give prompt written notice thereof to
Landlord. In case the Building shall be so damaged by fire or other casualty
that substantial alteration or reconstruction of the Building shall, in
Landlord's sole opinion, be required (whether or not the Premises shall have
been damaged by such fire or other casualty), Landlord may, at its option,
terminate this Lease by notifying Tenant in writing of such termination within
ninety (90) days after the date of such damage, in which event the Rent shall be
abated as of the date of such damage. If Landlord does not elect to terminate
this Lease, and provided insurance proceeds and any contributions from Tenant,
if
necessary, are available to fully repair the damage, Landlord shall within one
hundred twenty (120) days after the date of such damage commence to repair and
restore the Building and shall proceed with reasonable diligence to restore the
Building (except that Landlord shall not be responsible for delays outside its
control) to substantially the same condition in which it was immediately prior
to the happening of the casualty; provided, Landlord shall not be required to
rebuild, repair, or replace any part of Tenant's furniture, furnishings,
fixtures and/or equipment removable by Tenant or any improvements, alterations
or additions installed by or for the benefit of Tenant under the provisions of
this Lease. Landlord shall not in any event be required to spend for such work
an amount in excess of the insurance proceeds (excluding any deductible) and any
contributions from Tenant, if necessary, actually received by Landlord as a
result of the fire or other casualty. Landlord shall not be liable for any
inconvenience or annoyance to Tenant, injury to the business of Tenant, loss of
use of any part of the Premises by the Tenant or loss of Tenant's personal
property resulting in any way from such damage or the repair thereof, except
that, subject to the provisions of the next sentence, Landlord shall allow
Tenant a fair diminution of Rent during the time and to the extent the Premises
are unfit for occupancy. Notwithstanding anything to the contrary contained
herein, if the Premises or any other portion of the Building be damaged by fire
or other casualty resulting from the intentional or negligent acts or omissions
of Tenant or any of Tenant's Representatives, (i) the Rent shall not be
diminished during the repair of such damage, (ii) Tenant shall not have any
right to terminate this Lease due to the occurrence of such casualty or damage,
and (iii) Tenant shall be liable to Landlord for the cost and expense of the
repair and restoration of all or any portion of the Building caused thereby
(including, without limitation, any deductible) to the extent such cost and
expense is not covered by insurance proceeds. In the event the holder of any
indebtedness secured by the Premises requires that the insurance proceeds be
applied to such indebtedness, then Landlord shall have the right to terminate
this Lease by delivering written notice of termination to Tenant within thirty
(30) days after the date of notice to Tenant of any such event, whereupon all
rights and obligations shall cease and terminate hereunder except for those
obligations expressly intended to survive any such termination of this Lease.
Except as otherwise provided in this Section 27, Tenant hereby waives the
provisions of Sections 1932(2.), 1933(4.), 1941 and 1942 of the California Civil
Code.
28. CONDEMNATION: If twenty-five percent (25%) or more of the Premises is
condemned by eminent domain, inversely condemned or sold in lieu of condemnation
for any public or quasi-public use or purpose ("Condemned"), then Tenant or
Landlord may terminate this Lease as of the date when physical possession of the
Premises is taken and title vests in such condemning authority, and Rent shall
be adjusted to the date of termination. Tenant shall not because of such
condemnation assert any claim against Landlord or the condemning authority for
any compensation because of such condemnation, and Landlord shall be entitled to
receive the entire amount of any award without deduction for any estate of
interest or other interest of Tenant. If neither party elects to terminate this
Lease, Landlord shall, if necessary, promptly proceed to restore the Premises or
the Building to substantially its same condition prior to such partial
condemnation, allowing for the reasonable effects of such partial condemnation,
and a proportionate allowance shall be made to Tenant, as solely determined by
Landlord, for the Rent corresponding to the time during which, and to the part
of the Premises of which, Tenant is deprived on account of such partial
condemnation and restoration. Landlord shall not be required to spend funds for
restoration in excess of the amount received by Landlord as compensation
awarded.
29. ENVIRONMENTAL MATTERS/HAZARDOUS MATERIALS:
29.1 HAZARDOUS MATERIALS DISCLOSURE CERTIFICATE: Prior to executing this
Lease, Tenant has completed, executed and delivered to Landlord Tenant's initial
Hazardous Materials Disclosure Certificate (the "Initial HazMat Certificate"), a
copy of which is attached hereto as Exhibit G and incorporated herein by this
reference. Tenant covenants, represents and warrants to Landlord that the
information on the Initial HazMat Certificate is true and correct and accurately
describes the use(s) of Hazardous Materials which will be made and/or used on
the Premises by Tenant. Tenant shall commencing with the date which is one year
from the Commencement Date and continuing every year thereafter, complete,
execute, and deliver to Landlord, a Hazardous Materials Disclosure Certificate (
"the HazMat Certificate" ) describing Tenant's present use of Hazardous
Materials on the Premises, and any other reasonably necessary documents as
requested by Landlord. The HazMat Certificate required hereunder shall be in
substantially the form as that which is attached hereto as Exhibit E.
29.2 DEFINITION OF HAZARDOUS MATERIALS: As used in this Lease, the term
Hazardous Materials shall mean and include (a) any hazardous or toxic wastes,
materials or substances, and other pollutants or contaminants, which are or
become regulated by any Environmental Laws; (b) petroleum, petroleum by
products, gasoline, diesel fuel, crude oil or any fraction thereof; (c) asbestos
and asbestos containing material, in any form, whether friable or non-friable;
(d) polychlorinated biphenyls, (e) radioactive materials; (f) lead and
lead-containing materials; (g) any other material, waste or substance displaying
toxic, reactive, ignitable or corrosive characteristics, as all such terms are
used in their broadest sense, and are defined or become defined by any
Environmental Law (defined below); or (h) any materials which cause or threatens
to cause a nuisance
upon or waste to any portion of the Premises, the Building, the Lot, the Park or
any surrounding property; or poses or threatens to pose a hazard to the health
and safety of persons on the Premises or any surrounding property.
29.3 PROHIBITION; ENVIRONMENTAL LAWS: Tenant shall not be entitled to use
nor store any Hazardous Materials on, in, or about the Premises, the Building,
the Lot and the Park, or any portion of the foregoing, without, in each
instance, obtaining Landlord's prior written consent thereto. If Landlord
consents to any such usage or storage, then Tenant shall be permitted to use
and/or store only those Hazardous Materials that are necessary for Tenant's
business and to the extent disclosed in the HazMat Certificate and as expressly
approved by Landlord in writing, provided that such usage and storage is only to
the extent of the quantities of Hazardous Materials as specified in the then
applicable HazMat Certificate as expressly approved by Landlord and provided
further that such usage and storage is in full compliance with any and all
local, state and federal environmental, health and/or safety-related laws,
statutes, orders, standards, courts' decisions, ordinances, rules and
regulations (as interpreted by judicial and administrative decisions), decrees,
directives, guidelines, permits or permit conditions, currently existing and as
amended, enacted, issued or adopted in the future which are or become applicable
to Tenant or all or any portion of the Premises (collectively, the
"Environmental Laws"). Tenant agrees that any changes to the type and/or
quantities of Hazardous Materials specified in the most recent HazMat
Certificate may be implemented only with the Prior written consent of Landlord,
which consent may be given or withheld in Landlord's sole discretion. Tenant
shall not be entitled nor permitted to install any tanks under, on or about the
Premises for the storage of Hazardous Materials without the express written
consent of Landlord, which may be given or withheld in Landlord's sole
discretion. Landlord shall have the right at all times during the Term of this
Lease to (i) inspect the Premises, (ii) conduct tests and investigations to
determine whether Tenant is in compliance with the provisions of this Section
29, and (iii) request lists of all Hazardous Materials used, stored or otherwise
located on, under or about any portion of the Premises and/or the Common Areas.
The cost of all such inspections, tests and investigations shall be borne solely
by Tenant, if Landlord reasonably determines that Tenant or any of Tenant's
Representatives are directly or indirectly responsible in any manner for any
contamination revealed by such inspections, tests and investigations. The
aforementioned rights granted herein to Landlord and its representatives shall
not create (a) a duty on Landlord's part to inspect, test, investigate, monitor
or otherwise observe the Premises or the activities of Tenant and Tenant's
Representatives with respect to Hazardous Materials, including without
limitation, Tenant's operation, use and any remediation related thereto, or (b)
liability on the part of Landlord and its representatives for Tenant's use,
storage, disposal or remediation of Hazardous Materials, it being understood
that Tenant shall be solely responsible for all liability in connection
therewith.
29.4 TENANT'S ENVIRONMENTAL OBLIGATIONS: Tenant shall give to Landlord
immediate verbal and follow-up written notice of any spills, releases,
discharges, disposals, emissions, migrations, removals or transportation of
Hazardous Materials on, under or about any portion of the Premises or in any
Common Areas. Tenant, at its sole cost and expense, covenants and warrants to
promptly investigate, clean up, remove, restore and otherwise remediate
(including, without limitation, preparation of any feasibility studies or
reports and the performance of any and all closures) any spill, release,
discharge, disposal, emission, migration or transportation of Hazardous
Materials arising from or related to the intentional or negligent acts or
omissions of Tenant or Tenant's Representatives such that the affected portions
of the Park and any adjacent property are returned to the condition existing
prior to the appearance of such Hazardous Materials. Any such investigation,
clean up, removal, restoration and other remediation shall only be performed
after Tenant has obtained Landlord's prior written consent, which consent shall
not be unreasonably withheld so long as such actions would not potentially have
a material adverse long-term or short-term effect on any portion of the
Premises, the Building, the Lot or the Park. Notwithstanding the foregoing,
Tenant shall be entitled to respond immediately to an emergency without first
obtaining Landlord's prior written consent. Tenant, at its sole cost and
expense, shall conduct and perform, or cause to be conducted and performed, all
closures as required by any Environmental Laws or any agencies or other
governmental authorities having jurisdiction thereof. If Tenant fails to so
promptly investigate, clean up, remove, restore, provide closure or otherwise so
remediate, Landlord may, but without obligation to do so, take any and all steps
necessary to rectify the same and Tenant shall promptly reimburse Landlord, upon
demand, for all costs and expenses to Landlord of performing investigation,
clean up, removal, restoration, closure and remediation work. All such work
undertaken by Tenant, as required herein, shall be performed in such a manner so
as to enable Landlord to make full economic use of the Premises, the Building,
the Lot and the Park after the satisfaction completion of such work.
29.5 ENVIRONMENTAL INDEMNITY: In addition to Tenant's obligations as set
forth hereinabove, Tenant and Tenant's officers and directors agree to, and
shall, protect, indemnify, defend (with counsel acceptable to Landlord) and hold
Landlord and the other Indemnitees harmless from and against any and all claims,
judgments, damages, penalties, fines, liabilities, losses (including, without
limitation, diminution in value of any portion of the Premises, the Building,
the Lot or the Park, damages for the loss of or restriction on the use of
rentable or usable space, and from any adverse impact of Landlord's marketing of
any space within the building and/or Park), suits, administrative proceedings
and costs (including, but not limited to attorneys'
and consultant fees and court costs) arising at any time during or after the
Term of this Lease in connection with or related to, directly or indirectly, the
use, presence, transportation, storage, disposal, migration, removal, spill,
release or discharge of Hazardous Materials on, in or about any portion of the
Premises, the Common Areas, the Building, the Lot or the Park as a result
(directly or indirectly) of the intentional or negligent acts or omissions of
Tenant or any of Tenant's Representatives. Neither the written consent of
Landlord to the presence, use or storage of Hazardous Materials in, on, under or
about any portion of the Premises, the Building, the Lot and/or the Park, nor
the strict compliance by Tenant with all Environmental Laws shall excuse Tenant
and Tenant's officers and directors from its obligations of indemnification
pursuant hereto. Tenant shall not be relieved of its indemnification obligations
under the provisions of this Section 29.5 due to Landlord's status as either an
"owner" or "operator" under any Environmental Laws.
29.6 SURVIVAL: Tenant's obligations and liabilities pursuant to the
provisions of this Section 29 shall survive the expiration or earlier
termination of this Lease. If it is determined by Landlord that the condition of
all or any portion of the Premises, the Building, the Lot and/or the Park is not
in compliance with the provisions of this Lease with respect to Hazardous
Materials, including without limitation all Environmental Laws at the expiration
or earlier termination of this Lease, then in Landlord's sole discretion,
Landlord may require Tenant to hold over possession of the Premises until Tenant
can surrender the Premises to Landlord in the condition in which the Premises
existed as of the Commencement Date and prior to the appearance of such
Hazardous Materials, except for reasonable wear and tear, including without
limitation, the conduct or performance of any closures as required by any
Environmental Laws. The burden of proof hereunder shall be upon Tenant. For
purposes hereof, the term "reasonable wear and tear" shall not include any
deterioration in the condition or diminution of the value of any portion of the
Premises, the Building, the Lot and/ or the Park in any manner whatsoever
related to directly, or indirectly, Hazardous materials. Any such holdover by
Tenant will be with Landlord's consent, will not be terminable by Tenant in any
event or circumstance and will otherwise be subjected to the provisions of
Section 22 of this Lease.
30. FINANCIAL STATEMENTS: Tenant, for the reliance of Landlord, any lender
holding or anticipated to acquire a lien upon the Premises, the Building or the
Park or any portion thereof, or any prospective purchaser of the Building or the
Park or any portion thereof, within ten (10) days after Landlord's request
therefor, but not more often than once annually so long as Tenant is not in
default of this Lease, shall deliver to Landlord then current audited financial
statements of Tenant (including interim periods following the end of last fiscal
year for which annual statements are available) which statements shall be
prepared or compiled by a certified public accountant and shall present fairly
the financial condition of Tenant at such dates and the results of its
operations and changes in its financial positions for the periods ended on such
dates. If an audited financial statement has not been prepared, Tenant shall
provide Landlord with an unaudited financial statement and/or such other
information, the type and form of which are acceptable to Landlord in Landlord's
reasonable discretion, which reflects the financial condition of Tenant. If
Landlord so requests, Tenant shall deliver to Landlord an opinion of certified
public accountant, including a balance sheet and profit and loss statement for
the most recent prior year, all prepared in accordance with generally accepted
accounting principles consistently applied. Any and all options granted to
Tenant's financial condition at the time of Tenant's exercise of any such
option.
31. GENERAL PROVISIONS
31.1 TIME. Time is of the essence in this Lease and with respect to each
and all of its provisions with performance is a factor.
31.2 SUCCESSORS AND ASSIGNS. The covenants and conditions herein
contained, subject to the provisions as assignment, apply to the bind the heirs,
successors, executors, administrators and assigns of the parties hereto.
31.3 RECORDATION. Tenant shall not record this Lease or a short form
memorandum hereof without the prior written consent of the Landlord.
31.4 LANDLORD'S PERSONAL LIABILITY. The liability of Landlord (which, for
purposes of this Lease, shall include landlord and the owner of the Building if
other than Landlord) to Tenant for any default by Landlord under the terms of
this Lease shall be limited to the actual interest of Landlord and its present
or future partners or members in the Premises or the Building and Tenant agrees
to look solely to the Premises for satisfaction of any liability and shall not
look to other assets of Landlord nor seek any recourse against the assets of the
individual partners, members, directors, officers, shareholders, agents or
employees of Landlord (including without limitation, any property management
company of Landlord); it being intended that Landlord and the individual
partners, members, directors, officers, shareholders, agents and employees of
Landlord
(including without limitaion, and property management company of Landlord) shall
not be personally liable in any manner whatsoever for any judgment or
deficiency. The liability of Landlord under this Lease is limited to its actual
period of ownership of title to the Building, and Landlord shall be
automatically released from further performance under this Lease upon transfer
of landlord's interest in the Premises or the Building.
31.5 SEPARABILITY. Any provisions of this Lease which shall prove to be
invalid, void or illegal shall in no way affect, impair or invalidate any other
provisions hereof and such other provision shall remain in full force and
effect.
31.6 CHOICE OF LAW. This Lease shall be governed by, and construed in
accordance with, the laws of the State of California.
31.7 ATTORNEYS' FEES. In the event any dispute between the parties
results in litigation or other proceeding, the prevailing party shall be
reimbursed by the party not prevailing for all reasonable costs and expenses,
including, without limitation, reasonable attorneys' and experts' fees and costs
incurred by the prevailing party in connection with such litigation or other
proceeding, and any appeal thereof. Such costs, expenses and fees shall be
included in and made a part of the judgment recovered by the prevailing party,
if any.
31.8 ENTIRE AGREEMENT. This Lease supersedes any prior agreements,
representations, negotiations or correspondence between the parties, and
contains the entire agreement of the parties on matters covered. No other
agreement, statement or promise made by any party, that is not in writing and
signed by all parties to this Lease, shall be binding.
31.9 WARRANTY OF AUTHORITY. On the date that Tenant executes this Lease,
Tenant shall deliver to Landlord an original certificate of status for Tenant
issued by the California Secretary of State or statement of partnership for
Tenant recorded in the country in which the Premises are located, as applicable,
and such other documents as Landlord may reasonably request with regard to the
lawful existence of Tenant. Each person executing this Lease on behalf of a
party represents and warrants that (1) such person is duly and validly
authorized to do so on behalf of the entity it purports to so bind, and (2) if
such party is a partnership, corporation or trustee, that such partnership,
corporation or trustee has full right and authority to enter into this Lease and
perform all of its obligations hereunder. Tenant herby warrants that this Lease
is valid and binding upon Tenant and enforceable against Tenant in accordance
with its terms.
31.10 NOTICES. Any and all notices and demands required or permitted to be
given hereunder to Landlord shall be in writing and shall be sent: (a) by United
States mail, certified and postage prepaid; or (b) by personal delivery; or (c)
by overnight courier, addressed to Landlord at 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxx
Xxxxx, Xxxxxx Xxxx, Xxxxxxxxxx 00000-0000. Any and all notices and demands
required or permitted to be given hereunder to Tenant shall be in writing and
shall be sent: (i) by United States mail, certified and postage prepaid; or (ii)
by personal delivery to any employee or agent of Tenant over the age of eighteen
(18) years of age; or (iii) by overnight courier, all of which shall be
addressed to Tenant at the Premises. Notice and/or demand shall be deemed given
upon the earlier of actual receipt of the third day following deposit in the
United States mail. Any notice or requirement of service required by any statute
or law now or hereafter in effect, including, but not limited to, California
Code of Civil Procedure Sections 1161, 1161.1, and 1162 (including any
amendments, supplements or substitutions thereof), is hereby waived by Tenant.
31.11 JOINT AND SEVERAL. If Tenant consists of more than one person or
entity, the obligations of all such persons or entities shall be joint and
several.
31.12 COVENANTS AND CONDITIONS. Each provision to be performed by Tenant
hereunder shall be deemed to be both a covenant and a condition.
31.13 WAIVER OF JURY TRIAL. The parties hereto shall and they hereby do
waive trial by jury in any action, proceeding or counterclaim brought by either
of the parties hereto against the other on any matters whatsoever arising out of
or in any way related to this Lease, the relationship of Landlord and Tenant,
Tenant's use or occupancy of the Premises, the Building of the Park, and/or any
claim of injury, loss or damage.
31.14 COUNTERCLAIMS. In the event Landlord commences any proceedings for
nonpayment of Rent, Additional Rent, or any other sums or amounts due hereunder,
Tenant shall not interpose any counterclaim or whatever nature or description in
any such proceedings, provided, however, nothing contained herein shall be
deemed or construed as a waiver of the Tenant's right to assert such claims in
any separate action brought by Tenant or the right to offset the amount of any
final judgment owed by Landlord to Tenant.
31.15 UNDERLINING. The use of underlining within the Lease is for
Landlord's reference purposes only and no other meaning or emphasis is intended
by this use, not should any be inferred.
31.16 MERGER. The voluntary or other surrender of this Lease by Tenant,
the mutual termination or cancellation hereof by Landlord and Tenant, or a
termination of this Lease by Landlord for a material default by Tenant
hereunder, shall not work a merger, and, at the sole option of Landlord, (i)
shall terminate all or any existing subleases or subtenancies, or (ii) may
operate as an assignment to Landlord of any of all of such subleases or
subtenancies. Landlord's election of either or both of the foregoing option
shall be exercised by delivery by Landlord of written notice thereof to Tenant
and all known subtenants under any sublease.
32. SIGNS: All signs and graphics of every kind visible in or from public view
or corridors or the exterior of the Premises shall be subject to Landlord's
prior written approval and shall be subject to any applicable governmental laws,
ordinances and regulations and in compliance with Landlord's sign criteria as
same may exist from time to time or as set forth in Exhibit H hereto and made a
part hereof. Tenant shall remove all such signs and graphics prior to the
termination of this Lease. Such installations and removals shall be made in a
manner as to avoid damage or defacement of the Premises; and Tenant shall repair
any damage or defacement, including without limitation, discoloration caused by
such installation or removal. Landlord shall have the right, at its option, to
deduct from the Security Deposit such sums as are reasonably necessary to remove
such signs, including, but not limited to, the costs and expenses associated
with any repairs necessitated by such removal. Notwithstanding the foregoing, in
no event shall any: (a) neon, flashing or moving sign(s) or (b) sign(s) which
shall interfere with the visibility of any sign, awning, canopy, advertising
matter, or decoration of any kind of any other business or occupant of the
Building of the Park be permitted hereunder. Tenant further agrees to maintain
any such sign, awning, canopy, advertising matter, lettering, decoration or
other thing as may be approved in good condition and repair at all times.
33. MORTGAGEE PROTECTION: Upon any default on the part of Landlord, Tenant
will give written notice by registered or certified mail to any beneficiary of a
deed of trust or mortgagee of a mortgage covering the Premises who has provided
Tenant with notice of their interest together with an address for receiving
notice, and shall offer such beneficiary or mortgagee a reasonable opportunity
to cure the default (which, in no event shall be less than ninety (90) days),
including time to obtain possession of the Premises by power of sale or a
judicial foreclosure, if such should prove necessary to effect a cure. If such
default cannot be cured within such time period, then such additional time as
may be necessary will be given to such beneficiary or mortgagee to effect such
cure so long as such beneficiary or mortgagee has commenced the cure within the
original time period and thereafter diligently pursues such cure to completion,
in which event this Lease shall be terminated while such cure is being
diligently pursued. Tenant agrees that each lender to whom this Lease has been
assigned by Landlord is an express third party beneficiary hereof. Tenant shall
not make any prepayment of Rent more than one (1) month in advance without the
prior written consent of each such lender, except if Tenant is required to make
quarterly payments of Rent in advance pursuant to the provisions of Section 8
above. Tenant waives the collection of any deposit from such lender(s) or any
purchaser at a foreclosure sale of such lender(s)' deed of trust unless the
lender(s) or such purchaser shall have actually received and not refunded the
deposit. Tenant agrees to make all payments under this Lease to the lender with
the most senior encumbrance upon receiving a direction, in writing, to pay said
amounts to such lender. Tenant shall comply with such written direction to pay
without determining whether an event of default exists under such lender's loan
to Landlord.
34. QUITCLAIM: Upon any termination of this Lease, Tenant shall, at Landlord's
request, execute, have acknowledged and deliver to Landlord a quitclaim deed of
Tenant's interest in and to the Premises. If Tenant fails to so deliver to
Landlord such a quitclaim deed, Tenant hereby agrees that Landlord shall have
the full authority and right to record such a quitclaim deed signed only by
Landlord and such quitclaim deed shall be deemed conclusive and binding upon
Tenant.
35. MODIFICATIONS FOR LENDER: If, in connection with obtaining financing for
the Premises or any portion thereof, Landlord's lender shall request reasonable
modifications(s) to this Lease as a condition to such financing, Tenant shall
not unreasonably withhold, delay or defer its consent thereto, provided such
modifications do not materially adversely affect Tenant's rights hereunder or
the use, occupancy or quiet enjoyment of Tenant hereunder.
36. WARRANTIES OF TENANT: Tenant hereby warrants and represents to Landlord,
for the express benefit of Landlord, that Tenant has undertaken a complete and
independent evaluation of the risks inherent in the execution of this Lease and
the operation of the Premises for the use permitted hereby, and that, based upon
said independent evaluation, Tenant has elected to enter into this Lease and
hereby assumes all risks with respect thereto. Tenant hereby further warrants
and represents to Landlord, for the express benefit of Landlord, that in
entering into this Lease, Tenant has not relied upon any statement, fact,
promise or representation (whether express or implied, written or oral) not
specifically set forth herein in writing and that any statement, fact,
promise or representation (whether express or implied, written or oral) made at
any time to Tenant, which is not expressly incorporated herein in writing, is
hereby waived by Tenant.
37. COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT: Landlord and Tenant
hereby agree and acknowledge that the Premises, the Building and/or the Park may
be subject to the requirements of the Americans with Disabilities Act, a federal
law codified at 42 U.S.C. 12101 et seq, including, but not limited to Title III
thereof, all regulations and guidelines related thereto, together with any and
all laws, rules, regulations, ordinances, codes and statures now or hereafter
enacted by local or state agencies having jurisdiction thereof, including all
requirements of Title 24 of the State of California, as the same may be in
effect on the date of this Lease and may be hereafter modified, amended or
supplemented (collectively, the "ADA"). Tenant shall be solely responsible for
conducting its own independent investigation of this matter and for ensuring
that the design of all improvements or alterations to be made to the Premises
by, or on behalf of, Tenant strictly comply with all requirements of the ADA.
Subject to reimbursement pursuant to Section 6 of the Lease, if any barrier
removal work or other work is required to the Building, the Common Areas or the
Park under the ADA, then such work shall be the responsibility of Landlord;
provided, if such work is required under the ADA as a result of Tenant's use of
the Premises or any work or alteration made to the Premises by or on behalf of
Tenant, then such work shall be performed by Landlord at the sole cost and
expense of Tenant. Except as otherwise expressly provided in this provision,
Tenant shall be responsible at its sole cost and expense for fully and
faithfully complying with all applicable requirements of the ADA, including
without limitation, not discriminating against any disabled persons in the
operation of Tenant's business in or about the Premises, and offering or
otherwise providing auxiliary aids and services as, and when, required by the
ADA. Within ten (10) days after receipt, Landlord and Tenant shall advise the
other party in writing, and provide the other with copies of (as applicable),
any notices alleging violation of the ADA relating to any portion of the
Premises or the Building; any claims made or threatened in writing regarding
noncompliance with the ADA and relating to any portion of the Premises or the
Building; or any governmental or regulatory actions or investigations instituted
or threatened regarding noncompliance with the ADA and relating to any portion
of the Premises or the Building. Tenant shall and hereby agrees to protect,
defend (with counsel acceptable to Landlord) and hold Landlord and the other
Indemnitees harmless and indemnify the Indemnitees from and against all
liabilities, damages, claims, losses, penalties, judgments, charges and expenses
(including reasonable attorneys' fees, costs of court and expenses necessary in
the prosecution or defense of any litigation including the enforcement of this
provision) arising from or in any way related to, directly or indirectly,
Tenant's or Tenant's Representatives' violation or alleged violation of the ADA.
Tenant agrees that the obligations of Tenant herein shall survive the expiration
or earlier termination of this Lease.
38. BROKERAGE COMMISSION: Landlord and Tenant each represents and warrants for
the benefit of the other that it has had no dealings with any real estate
broker, agent or finder in connection with the Premises and/or the negotiation
of this Lease, except for the Broker(s) (as set forth on Page 1), and that it
knows of no other real estate broker, agent or finder who is or might be
entitled to a real estate brokerage commission or finder's fee in connection
with this Lease or otherwise based upon contacts between the claimant and
Tenant. Each party shall indemnify and hold harmless the other from and against
any and all liabilities or expenses arising out of claims made for a fee or
commission by any real estate broker, agent of finder in connection with the
Premises and this Lease other than Broker(s), if any, resulting from the actions
of the indemnifying party. Any real estate brokerage commission of finder's fee
payable to the Broker(s) in connection with this Lease shall only be payable and
applicable to the extent of the initial Term of the Lease and to the extent of
the Premises as same exist as of the date on which Tenant executes this Lease.
Unless expressly agreed to in writing by Landlord and Broker(s), no real estate
brokerage commission or finder's fee shall be owed to, or otherwise payable to,
the Broker(s) for any renewals or other extensions of the initial Term of this
Lease or for any additional space leased by Tenant other than the Premises as
same exists as of the date on which Tenant executes this Lease. Tenant further
represents and warrants to Landlord that Tenant will not receive (i) any portion
of any brokerage commission or finder's fee payable to the Broker(s) in
connection with this Lease or (ii) any other form of compensation or incentive
from the Broker(s) with respect to this Lease.
39. QUIET ENJOYMENT: Landlord covenants with Tenant, upon the paying of Rent
and observing and keeping the covenant, agreements and conditions of this Lease
on its part to be kept, and during the periods that Tenant is not otherwise in
default of any of the terms or provisions of this Lease, and subject to the
rights of any of Landlord's lenders, (i) that Tenant shall and may peaceably and
quietly hold, occupy and enjoy the Premises and the Common areas during the Term
of this Lease, and (ii) neither Landlord, nor any successor or assign of
Landlord, shall disturb Tenant's occupancy or enjoyment of the Premises and the
Common Areas.
40. LANDLORD'S ABILITY TO PERFORM TENANT'S UNPERFORMED OBLIGATIONS:
Notwithstanding anything to the contrary contained in this Lease, if Tenant
shall fail to perform any of the terms, provisions, covenants or conditions to
be performed or complied with by Tenant pursuant to this Lease, and/or if the
failure of Tenant relates to a matter which in Landlord's judgment reasonably
exercised is of an emergency nature and such failure shall remain uncured for a
period of time commensurate with such emergency, then Landlord may, at
Landlord's option without any obligation to do so, and in its sole discretion as
to necessity therefor, perform any such term, provision, covenant, or condition,
or make any such payment and landlord by reason of so doing shall not be liable
or responsible for any loss or damage thereby sustained by Tenant or anyone
holding under or through Tenant. If Landlord so performs any of Tenant's
obligations hereunder, the full amount of the cost and expense entailed or the
payment so made or the amount of the loss so sustained shall immediately be
owing by Tenant to Landlord, and Tenant shall promptly pay to Landlord upon
demand, as Additional Rent, the full amount thereof with interest thereon from
the date of payment at the greater of (i) ten percent (10%) per annum, or (ii)
the highest rate permitted by applicable law and Enforcement Expenses.
IN WITNESS WHEREOF, this Lease is executed by the parties as of the Lease
Date referenced on Page 1 of this Lease.
TENANT:
Viko Technology , Inc.,
a California corporation,
dba Adaptive Electronics
By: /s/ Xxxx xx Xxxxxxxx
----------------------------
Its: Vice President
Date: 6/17/98
By: ----------------------------
Its: ---------------------------
Date: --------------------------
LANDLORD:
MILPITAS INDUSTRIAL PROPERTIES, INC.,
A Delaware Corporation
By: LPS MS, Inc.,
as manager and agent for MILPITAS INDUSTRIAL PROPERTIES, INC.
By: /s/ Senior Vice President
--------------------------
Senior Vice President
Date: ------------------------
EXHIBIT A- PREMISES
This exhibit, entitled "Premises", is and shall constitute EXHIBIT A to that
certain Lease Agreement dated June 4, 1998 ("the Lease"), by and between
MILPITAS INDUSTRIAL PROPERTIES, INC., a Delaware corporation ("Landlord") and
Viko Technology, Inc., a California corporation, dba Adaptive Electronics
("Tenant") for the leasing of certain premises located in the Mabury Industrial
Park at Building B, 1605 Malbury Road, Units A and B, San Jose, California (the
"Premises")
The Premises consist of the rentable square footage of space specified in the
Basic Lease Information and has the address specified in the Basic Lease
Information. The Premises are a part of and are contained in the Building
specified in the Basic Lease Information. The cross-hatched area depicts the
Premises within the Building.
EXHIBIT B- TENANT IMPROVEMENTS
This exhibit, entitled "Tenant Improvements", is and shall constitute EXHIBIT B
to that certain Lease agreement dated June 4, 1998 (the "Lease"), by and between
MILPITAS INDUSTRIAL PROPERTIES, INC., a Delaware corporation ("Landlord") and
Viko Technology, Inc., a California corporation, dba Adaptive Electronics
("Tenant") for the leasing of certain premises located in the Malbury Industrial
Park at Building B, 1605 Malbury Road, Units A and B, San Jose, California (the
"Premise"). The terms, conditions and provisions of this EXHIBIT B are hereby
incorporated into and are made a part of the Lease. Any capitalized terms used
herein and not otherwise defined herein shall have the meaning ascribed to such
terms as set forth in the Lease:
TENANT IMPROVEMENTS, AS-IS CONDITION: Tenant hereby accepts the Premises as
suitable for Tenant's intended use and as being good operating order, condition
and repair, "AS-IS", and without representation or warranty by Landlord nor any
of Landlord's agents, representatives or employees as to the suitability,
fitness, condition, use or occupancy which may be made thereof. Tenant further
acknowledges and agrees that neither Landlord nor any of Landlord's agents,
representatives or employees has agreed to undertake any alterations or
construct any improvements ("Tenants Improvements") to the Premises. Any
expectations to the foregoing must be by written agreement executed by Landlord
and Tenant.
EXHIBIT C TO LEASE AGREEMENT
RULES & REGULATIONS
This exhibit, entitled "Rules & Regulations", is and shall constitute EXHIBIT C
to that certain Lease Agreement dated June 4, 1998 (the" Lease"), by and between
MILPITAS INDUSTRIAL PROPERTIES INC., a Delaware corporation ("Landlord") and
Viko Technology, Inc., a California corporation, dba Adaptive Electronics
(`'Tenant") for leasing of certain premises located in the Mabury Industrial
Park at Building B, 1605 Mabury Road, Units A and B, San Jose , California (the
"Premises"). The terms, conditions and provisions of this EXHIBIT C are hereby
incorporated into and are made a part of the Lease. Any capitalized terms used
herein and not otherwise defined herein shall have the meaning ascribed to such
terms as set forth in the Lease:
1. No advertisement, picture or sign of any shall be displayed on or
outside the Premises or the Building without the prior written
consent of Landlord. Landlord shall have the right to remove any
such unapproved item without notice and at the Tenant's expense.
2. Tenant shall not regularly park motor vehicles in designated parking
areas after the conclusion of normal daily business activity, except
for company vehicles that may be parked periodically overnight.
3. Tenant shall not use any method of heating the air conditioning the
prior other than the supplied by Landlord without the prior written
consent of Landlord.
4. All window coverings installed by Tenant and visible from the
outside of the Building require the prior written approval of
Landlord.
5. Tenant shall not use, keep or permit to be used or kept any foul or
noxious gas or substance or any flammable or combustible materials
on or around the Premises, the building or the Park.
6. Tenant shall not alter any lock or install any new locks or bolts on
any door at the Premises without the prior consent of Landlord.
7. Tenants agree not to make any duplicate keys without the prior
consent of Landlord.
8. Tenant shall park motor vehicles in those general parking areas as
designated by Landlord except for loading and unloading. During
those periods of loading and unloading, Tenant shall not
unreasonably interfere with traffic flow within the Park and loading
and unloading areas of other tenants.
9. Tenant shall not disturb, solicit or canvas any occupant of the
Building or Park and shall cooperate to prevent same.
10. No person shall go on the roof without Landlord's permission.
11. Business machines and mechanical equipment belonging to Tenant which
cause noise or vibration that may be transmitted to the structure of
the Building, to such as a degree as to be objectionable to Landlord
or other Tenants, shall be placed and maintained by Tenant, at
Tenant's expense, on vibration eliminators or other devices
sufficient to eliminate noise or vibration.
12. All goods, including material used to store goods, delivered to the
Premises of Tenant shall be immediately moved into the Premises and
shall not be left in parking or receiving areas overnight.
13. Tractor trailers which must be unhooked or parked with dolly wheels
beyond the concrete loading areas must use steel plates or wood
blocks under the dolly wheels to prevent damage to the asphalt
paving surfaces. No parking or storing of such trailers will be
permitted in the auto parking areas of the Park or on streets
adjacent thereto.
14. Forklifts which operate on asphalt paving areas shall not have solid
rubber tires and shall not only use tires that do not damage the
asphalt.
15. Tenant is responsible for the storage and removal of all trash and
refuse. All such trash and refuse shall be contained in suitable
receptacles stored behind screened enclosures at locations approved
by Landlord.
16. Tenant shall not store or permit the storage or placement of goods,
or merchandise or pallets or equipment of any sort in or around the
Premises, the Building, the Park or any of the Common Area of the
foregoing. No displays or sales of merchandise shall be allowed in
the parking lots or other Common Areas.
17. Tenant shall not permit any animals, including, but not limited to,
any household pets, to be brought or kept in or about the Premises,
the Building, the Park or any of the Common Areas of the foregoing.
18. Tenant shall not permit any permit any motor vehicles to be washed
on any portion of the Premises or in the Common Areas of the Park,
nor shall Tenant permit mechanical work or maintenance of motor
vehicles to be performed on any portion of the Premises or in the
Common Areas of the Park.
EXHIBIT E
HAZARDOUS MATERIALS DISCLOSURE CERTIFICATE
Your cooperation in this matter is appreciated. Initially, the information
provided by you in this Hazardous Materials Disclosure Certificate is necessary
for the Landlord (identified below) to evaluate and finalized a lease agreement
with you as tenant. After a lease agreement is signed by you and the Landlord
(the "Lease Agreement"), on an annual basis in accordance with the provisions of
Section 29 of the signed Lease Agreement, you are to provide an update to the
information initially provided by you in this certificate. The information
contained in the initial Hazardous Materials Disclosure Certificate and each
annual certificate provided by you thereafter will be maintained in
confidentiality by Landlord subject to release and disclosure as required by (i)
any lenders and owners and their respective environmental consultants, (ii) any
prospective purchaser(s) of all or any portion of the property on which the
Premises are located, (iii) Landlord to defend itself or its lenders, partners
or representatives against any claim or demand, and (iv) any laws, rules,
regulations, orders, decrees, or ordinances, including, without limitation,
court orders or subpoenas. Any and all capitalized terms used herein, which are
not otherwise defined herein, shall have the same meaning ascribed to such term
in the signed Lease Agreement. Any questions regarding this certificate should
be directed to, and when completed, the certificate should be delivered to:
Landlord
_____________________________________________________________
_____________________________________________________________
c/o LPC MS, INC.
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxx Xxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
Attn: ______________________________________________________
Phone: (000) 000-0000
Name of (Prospective) Tenant : _________________________________________________
Mailing Address: ______________________________________________________________
________________________________________________________________________________
Contact Person, Title and Telephone Number (s): ________________________________
Contact Person for Hazardous Waste Materials Management and Manifest and
Telephone Number(s):
________________________________________________________________________________
________________________________________________________________________________
Address of (Prospective) Premises : ____________________________________________
Length of (Prospective) initial Term : ________________________________________
________________________________________________________________________________
1. GENERAL INFORMATION:
Describe the initial proposed operations to take place in, on, or about
the Premises, including, without limitation, principal products processed,
manufactured or assembled services and activities to be provided or otherwise
conducted. Existing tenants should describe any proposed changes to on-going
operations.
_______________________________________________________________________________
_______________________________________________________________________________
2. USE STORAGE AND DISPOSAL OF HAZARDOUS MATERIAL
2.1 Will any Hazardous Materials be used, generated, stored or disposed
of in, on or about the Premises ? Existing tenants should describe
any Hazardous Materials which continue to be used, generated, stored
or disposed of in, on or about the Premises.
Wastes Yes [ ] No [ ]
Chemical Products Yes [ ] No [ ]
Other Yes [ ] No [ ]
If Yes is marked, please explain: __________________________________
____________________________________________________________________
____________________________________________________________________
2.2 If Yes is marked in Section 2.1, attach a list of any Hazardous
Materials to be used, generated, stored or disposed of in, on or
about the Premises, including the applicable hazard class and an
estimate of the quantities of such Hazardous Materials at any given
time; estimated annual throughput; the proposed location(s) and
method of storage (excluding nominal amounts of ordinary household
cleaners and janitorial supplies which are not regulated by any
Environmental Laws); and the proposed location(s) and method of
disposal for each Hazardous Material, including, the estimated
frequency, and the proposed contractors or subcontractors. Existing
tenants should attach a list setting forth the information requested
above and such list should include actual data from on going
operations and identification of any variations in such information
from the prior year's certificate.
3. STORAGE TANKS AND SUMPS
3.1 Is any above or below grounds storage of gasoline, diesel,
petroleum, or other Hazardous Materials in tanks or sumps proposed
in, on or about the Premises? Existing tenants should described any
such actual or proposed activities.
Yes [ ] No [ ]
If yes, please explain: ____________________________________________
____________________________________________________________________
____________________________________________________________________
4. WASTE MANAGEMENT
4.1 Has your company been issued an EPA Hazardous Waste Generator I.D.
Number? Existing tenants should describe any additional
identification numbers issued since the previous certificate.
Yes [ ] No [ ]
4.2 Has your company field a biennial or quarterly reports as a
hazardous waste generator? Existing tenants should describe any new
reports field.
Yes [ ] No [ ]
If yes, attach a copy of the most recent report field..
5. WASTEWATER TREATMENT AND DISCHARGE
5.1 Will your company discharge wastewater or other wastes to;
__________ storm drain? ________ sewer?
__________ surface water? ________ no wastewater or other wastes
discharged.
Existing tenants should indicate any actual discharges. If so,
describe the nature of any proposed or actual discharge(s).
____________________________________________________________________
____________________________________________________________________
5.2 Will any such wastewater or waste be treated before discharge?
Yes [ ] No [ ]
If yes, describe the type of treatment proposed to be conducted.
Existing tenants should describe the actual treatment conducted.
____________________________________________________________________
____________________________________________________________________
6. AIR DISCHARGES
6.1 Do you plan for air filtration systems or stacks to be used in your
company's operations in, on or about the Premises that will
discharge into the air; and will such air emissions be monitored?
Existing tenants should indicate whether or not there are any such
air filtration systems or stacks in use in, on or about the Premises
which discharge into the air and whether such air emissions are
being monitored.
Yes [ ] No [ ]
If yes, please describe: ___________________________________________
____________________________________________________________________
____________________________________________________________________
6.2 Do you propose to operate any of the following types of equipment,
or any other equip- ment requiring an air emissions permit? Existing
tenants should specify any such equipment being operated in, or
about the Premises.
___________ Spray booth(s) ___________ Incinerator(s)
___________ Dip tank(s) ___________ Other (Please describe)
___________ Drying oven(s) ___________ No Equipment Requiring Air
Permits
If yes, please describe: ___________________________________________
____________________________________________________________________
____________________________________________________________________
7. HAZARDOUS MATERIALS DISCLOSURES
7.1 Has your company prepared or will it be required to prepare a
Hazardous Materials management plan ("Management Plan") pursuant to
Fire Department or other governmental or regulatory agencies'
requirements? Existing tenants should indicate whether or not a
Management Plan is required and has been prepared.
Yes [ ] No [ ]
If yes, attach a copy of the Management Plan. Existing tenants
should attach a copy of any required updates to the Management Plan.
7.2 Are any of the Hazardous Materials, and in particular chemicals,
proposed to be used in your operations in, on or about the Premises
regulated under Proposition 65? Existing tenants should indicate
whether or not there are any new Hazardous Materials being so used
which are regulated under Proposition 65.
Yes [ ] No [ ]
If yes, Please explain: ____________________________________________
____________________________________________________________________
____________________________________________________________________
8. ENFORCEMENT ACTIONS AND COMPLAINTS
8.1 With respect to Hazardous Materials or Environmental Laws, has your
company ever been Subject to any agency enforcement actions,
administrative orders, or consent decrees or has your company
received request for information, notice or demand letters, or any
other inquiries regarding its operations? Existing tenants should
indicate whether or not any such actions, orders or decrees have
been, or are in the process of being, undertaken or if any such
request have been received.
Yes [ ] No [ ]
If yes, describe the actions, orders or decrees and any continuing
compliance obligations imposed as a result of these actions, orders
or decrees and also describe any requests, notices or demands, and
attach a copy of all such documents. Existing tenants should
describe and attach a copy of any new actions, orders, decrees,
requests, notices or demands not already delivered to Landlord
pursuant to the provisions of section 29 of the signed Lease Agree-
ment.
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
8.2 Have there ever been, or are there now pending, any lawsuits against
your company regar- ding any environmental or health and safety
concerns?
Yes [ ] No [ ]
If yes, describe any such lawsuits and attach copies of the
complaint(s), cross complaints(s), pleadings and all other documents
related thereto as requested by Landlord. Existing tenants should
describe and attach a copy of any new complaint(s),
cross-complaint(s), pleadings and other related documents not
already delivered to Landlord pursuant to the provisions Section 29
of the signed Lease Agreement.
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
8.3 Have there been any problems or complaints from the adjacent
tenants, owners or other neighbors at your company's current
facility with regard to environmental or health and safety concerns?
Existing tenants should indicate whether or not there have been any
such problems or complaints from adjacent tenants, owners or other
neighbors at, about or near the Premises.
Yes [ ] No [ ]
If yes, please describe. Existing tenants should describe any
such problems or complaints not already disclosed to Landlord under
the provisions of the signed Lease Agreement
____________________________________________________________________
____________________________________________________________________
________________________
9. PERMITS AND LICENCES
9.1 Attach copies of all Hazardous Materials permits licenses including
a Transporter Permit number issued to your company with respect to
its proposed operations in, on or about the Premises, including
without limitation, any wastewater discharge permits, air emissions
permits, and use permits or approvals. Existing tenants should
attach copies of any new permits and licenses as well as any
renewals of permits or licenses previously issued.
The undersigned hereby acknowledges and agrees that (A) this Hazardous Materials
Disclosure Certificate is being delivered in connection with, and as required
by, Landlord in connection with the evaluation and finalization of a Lease
Agreement and will be attach thereto as an exhibit; (B) that this Hazardous
Materials Disclosure Certificate is being delivered in accordance with, and as
required by, the provisions of Section 29 of the Lease Agreement; and (C) that
tenant shall have and retain full and complete responsibility and liability with
respect to any of the Hazardous Materials disclosed in the HazMat Certificate
notwithstanding Landlord's/Tenant's receipt and/or approval of such certificate.
Tenant further agrees that none of the following described acts or events shall
be construed or otherwise interpreted as either (a) excusing, diminishing or
otherwise limiting Tenant from the requirement to fully and faithfully perform
its obligations under the Lease with respect to Hazardous Materials , including
without limitation, Tenant's indemnification of the Indemnitees and compliance
with all Environmental Laws, or (b) imposing upon Landlord, directly or
indirectly, any duty or liability with respect to any such Hazardous Materials,
including, without limitation, any duty on Landlord to investigate or verify
otherwise the accuracy of the representations and statements made therein or to
ensure that Tenant is in compliance with all Environmental Laws; (i) the
delivery of such certificate to Landlord and/or Landlord's acceptance of such
certificate, (ii) Landlord's review and approval of such certificate, (iii)
Landlord's failure to obtain such certificate from Tenant at any time, or (iv)
Landlord's actual or constructive knowledge of the types and quantities of
Hazardous Materials being used, stored, generated, disposed of or transported on
or about the Premises by Tenant or Tenant's Representatives. Notwithstanding the
foregoing or anything to the contrary contained herein, the undersigned
acknowledges and agrees that Landlord and its partners, lenders and
representatives may, and will, rely upon the statements, representations,
warranties and certifications made herein and the truthfulness thereof in
entering into the Lease Agreement and the continuance thereof throughout the
term, and any renewals thereof, of the Lease Agreement.
I (print name)___________________ , acting with full authority to bind the
(proposed) Tenant and on behalf of the (proposed) Tenant, certify, represent and
warrant that the information contained in this certificate is true and correct.
(PROSPECTIVE) TENANT:
By:_______________________________________
Title: ___________________________________
Date: ____________________________________
EXHIBIT F
FIRST AMENDMENT TO LEASE AGREEMENT
CHANGE OF COMMENCEMENT DATE
The first Amendment to Lease Agreement (the "Amendment") is made and entered
into to be effective as of ____________________________, by and between
_____________________________ ( "LANDLORD"), AND __________________________
("TENANT"), with reference to the following facts:
RECITALS
A. Landlord and Tenant have entered into that certain Lease Agreement dated
_________ (the "Lease "), for the leasing of certain premises containing
approximately ________ rentable square feet of space located at
____________________ , California (the "Premises") as such Premises are more
fully described in the Lease.
B. Landlord and Tenant wish to amend the Commencement date of the Lease.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Landlord and Tenant hereby agree as follows:
1. Recitals: Landlord and Tenant agree that the above recitals
are true and correct.
2. The commencement Date of the Lease shall be
___________________________.
3. The last day of the Term of the Lease (the "Expiration Date")
shall be ________________.
4. The dates on which the Base Rent will be adjusted are:
For the period _________to________the monthly Base Rent shall
be $__________;
For the period _________to________the monthly Base Rent shall
be $__________;and
For the period _________to________the monthly Base Rent shall
be $__________;.
5. Effect of Amendment: Except as modified herein, the terms and
conditions of the Lease shall remain unmodified and continue
in full force and effect. In the event of any conflict between
the terms and conditions of the Lease and this Amendment, the
terms and conditions of this Amendment shall prevail.
6. Definitions: Unless otherwise defined in this Amendment, all
terms not defined in this Amendment shall have the meaning set
forth in the Lease.
7. Authority: Subject to the provisions of the Lease, this
Amendment shall be binding upon and inure to the benefit of
the parties hereto, their respective heirs, legal
representatives, successors and assigns. Each party hereto and
the persons signing below warrant that the person signing
below on such party's behalf is authorized to do so and to
bind such party to the terms of this Amendment.
8. The terms and provisions of the Lease are hereby incorporated
in this Amendment.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date and
year first above written.
(PROPERTY MANAGER: PLEASE PROVIDE TENANT INFORMATION AND WORD PROCESSING WILL
COMPLETE THE SIGNATURE BLOCK).
EXHIBIT G (TENANT / LANDLORD )
TENANT'S INITIAL HAZARDOUS MATERIALS DISCLOSURE CERTIFICATE
Your cooperation in this matter is appreciated. Initially, the information
provided by you in this Hazardous Materials Disclosure Certificate is necessary
for the Landlord (identified below) to evaluate and finalize a lease agreement
with you as tenant. After a lease agreement is signed by you and the Landlord
(the "Lease Agreement"), on an annual basis in accordance with the provisions of
Section 29 of the signed Lease Agreement, you are to provide an update to the
information initially provided by you in this certificate. The information
contained in the initial Hazardous Materials Disclosure Certificate and each
annual certificate provided by you thereafter will be maintained in
confidentially by Landlord subject to release and disclosure as required by (i)
any lenders and owners and their respective environmental consultants, (ii) any
prospective purchaser(s) of all or any portion of the property on which the
Premises are located , (iii) Landlord to defend itself or its lenders, partners
or representatives against any claim or demand, and (iv) any laws, rules,
regulations, orders, decrees, or ordinances, including, without limitation,
court orders or subpoenas. Any and all capitalized terms used herein, which are
not otherwise defined herein, shall have the same meaning ascribed to such term
in the signed Lease Agreement. Any questions regarding this certificate should
be directed to, and when completed, the certificate should be delivered to :
Landlord: MILPITAS INDUSTRIAL PROPERTIES, INC.,
a Delaware corporation
c/o LPS MS, Inc.
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxx Xxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Portfolio Manager
Phone: (000) 000-0000
Name of (Prospective) Tenant: Viko Technology, Inc., a California corporation,
dba Adaptive Electronics
Mailing Address: 0000 Xxxxxx Xxxx, Units A & B
Xxx Xxxx, Xxxxxxxxxx 00000
Contact Person, Title and Telephone Number(s):__________________________________
Contact Person for Hazardous Waste Materials Management and Manifests and
Telephone Number(s): ___________________________________________________________
________________________________________________________________________________
_______________________________________________________________
Address of (Prospective) Premises : 0000 Xxxxxx Xxxx Xxxxx X & X, Xxx Xxxx,
Xxxxxxxxxx 00000
Length of (Prospective) initial Term: Sixty (60) months
________________________________________________________________________________
1. GENERAL INFORMATION:
Describe the initial proposed operations to take place in, on, or about
the Premises, including , without limitation, principal products
processed, manufactured or assembled services and acti- vities to be
provided or otherwise conducted. Existing tenants should describe any
proposed changes to on-going operations.
2. USE, STORAGE AND DISPOSAL OF HAZARDOUS MATERIALS
2.1 Will any Hazardous Materials be used, generated , stored or disposed
of in, on or about the Premises? Existing tenants should describe
any Hazardous Materials which continue to be used, generated, stored
or disposed of in, on or about the Premises.
Wastes Yes [ ] No [ ]
Chemical Products Yes [ ] No [ ]
Other Yes [ ] No [ ]
If Yes is marked, please explain ___________________________________
____________________________________________________________________
____________________________________________________________________
2.2 If Yes is marked in Section 2.1, attach a list of any Hazardous
Materials to be used, generated, stored or disposed of in, or about
the Premises, including the applicable hazard class and an estimate
of the quantities of such Hazardous Materials at any given time;
estimated annual throughput; the proposed location(s) and method of
storage (excluding nominal amounts of ordinary household cleaners
and janitorial supplies which are not regulated by any Environmental
Laws); and the proposed location(s) and method of disposal for each
Hazardous Material, including, the estimated frequency, and the
proposed contractors or subcontractors. Existing tenants should
attach a list setting forth the information requested above and such
list should include actual data from on-going operations and the
identification of any variations in such information from the prior
year's certificate.
3. STORAGE TANKS AND SUMPS
3.1 Is any above or below ground storage of gasoline, diesel, petroleum,
or other Hazardous Materials in tanks or sumps proposed in, on or
about the Premises? Existing tenants should describe any such actual
or proposed activities.
Yes [ ] No [ ]
If yes, please explain: __________________________________________________
____________________________________________________________________
____________________________________________________________________
4. WASTE MANAGEMENT
4.1 Has your company been issued an EPA Hazardous Waste Generator I.D.
Number? Existing tenants should describe any additional
identification numbers issued since the previous certificate.
Yes [ ] No [ ]
4.2 Has your company filed a biennial or quarterly reports as a
hazardous waste generator? Existing tenants should describe any new
reports field.
Yes [ ] No [ ]
If yes, attach a copy of the most recent report filed.
5. WASTEWATER TREATMENT AND DISCHARGE
5.1 Will your company discharge wastewater or other wastes to:
_________ storm drain? ________ sewer?
_________ surface water? ________ no wastewater or other wastes
discharged?
Existing tenants should indicate any actual discharges. If so,
describe the nature of any proposed or actual discharge(s).
____________________________________________________________________
____________________________________________________________________
5.2 Will any such wastewater or waste be treated before discharge?
Yes [ ] No [ ]
If yes, describe the type of treatment proposed to be conducted.
Existing tenants should describe the actual treatment conducted.
____________________________________________________________________
____________________________________________________________________
6. AIR DISCHARGES
6.1 Do you plan for any air filtration systems or stacks to be used in
your company's operations in, on or about the Premises that will
discharge into the air; and will such air emissions be monitored?
Existing tenants should indicate whether or not there are any such
air filtration systems or stacks in use in, on or about the Premises
which discharge into the air and whether such air emissions are
being monitored.
Yes [ ] No [ ]
If yes, please describe:____________________________________________
____________________________________________________________________
____________________________________________________________________
6.2 Do you propose to operate any of the following types of equipment,
or any other equip- ment requiring an air emissions permit? Existing
tenants should specify any such equipment b being operated in, on or
about the Premises.
___________ Spray booth(s) ___________ Incinerator(s)
___________ Dip tank(s) ___________ Other (Please describe)
___________ Drying oven(s) ___________ No Equipment Requiring Air
Permits
If yes, please describe:____________________________________________
____________________________________________________________________
____________________________________________________________________
7. HAZARDOUS MATERIALS DISCLOSURES
7.1 Has your company prepared or will it be required to prepare a
Hazardous Materials management plan ("Management Plan") pursuant to
Fire Department or other governmental or regulatory agencies'
requirements? Existing tenants should indicate whether or not a
Management Plan is required and has been prepared.
Yes [ ] No [ ]
If yes, attach a copy of the Management Plan. Existing tenants
should attach a copy of any required updates to the Management Plan.
7.2 Are any of the Hazardous Materials, and in particular chemicals,
proposed to be used in your operations in, on or about the Premises
regulated under Proposition 65? Existing tenants should indicate
whether or not there are any new Hazardous Materials being so used
which are regulated under Proposition 65.
Yes [ ] No [ ]
If yes, Please explain: ____________________________________________
____________________________________________________________________
____________________________________________________________________
8. ENFORCEMENT ACTIONS AND COMPLAINTS
8.1 With respect to Hazardous Materials or Environmental Laws, has your
company ever been Subject to any agency enforcement actions,
administrative orders, or consent decrees or has your company
received request for information, notice or demand letters, or any
other inquiries regarding its operations? Existing tenants should
indicate whether or not any such actions, orders or decrees have
been, or are in the process of being, undertaken or if any such
request have been received.
Yes [ ] No [ ]
If yes, describe the actions, orders or decrees and any continuing
compliance obligations imposed as a result of these actions, orders
or decrees and also describe any requests, notices or demands, and
attach a copy of all such documents. Existing tenants should
describe and attach a copy of any new actions, orders, decrees,
requests, notices or demands not already delivered to Landlord
pursuant to the provisions of section 29 of the signed Lease Agree-
ment .
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
8.2 Have there ever been, or are there now pending, any lawsuits against
your company regar- ding any environmental or health and safety
concerns?
Yes [ ] No [ ]
If yes, describe any such lawsuits and attach copies of the
complaint(s), cross complaints(s), pleadings and all other documents
related thereto as requested by Landlord. Existing tenants should
describe and attach a copy of any new complaint(s),
cross-complaint(s), pleadings and other related documents not
already delivered to Landlord pursuant to the Provisions of Section
29 of the signed Lease Agreement.
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
8.3 Have there been any problems or complaints from adjacent tenants,
owners or other neighbors at your company's current facility with
regard to environmental or health and safety concerns?
Existing tenants should indicate whether or not there have been any
such problems or complaints from adjacent tenants, owners or other
neighbors at, about or near the premises.
Yes [ ] No [ ]
If yes, please describe. Existing tenants should describe any such
problems or complaints not already disclosed to Landlord under the
provisions of the signed Lease Agreement.
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
9. PERMITS AND LICENSES
9.1 Attach copies of all Hazardous Materials permits and licenses
including a Transporter Permit number issued to your company with
respect to its proposed operations in, on or about the Premises,
including, without limitation, any wastewater discharge permits, air
emissions permits, and use permits or approvals. Existing tenants
should attach copies of any new permits and licenses as well as any
renewals of permits or licenses previously issued.
The undersigned hereby acknowledges and agrees that (A) this Hazardous
Materials Disclosure Certificate is being delivered in connection with, and as
required by, Landlord in connection with the evaluation and finalization of a
Lease Agreement and will be attach thereto as an exhibit; (B) that this
Hazardous Materials Disclosure Certificate is being delivered in accordance
with, and as required by, the provisions of Section 29 of the Lease Agreement;
and (C) that tenant shall have and retain full and complete responsibility and
liability with respect to any of the Hazardous Materials disclosed in the HazMat
Certificate notwithstanding Landlord's/Tenant's receipt and/or approval of such
certificate. Tenant further agrees that none of the following described acts or
events shall be construed or otherwise interpreted as either (a) excusing,
diminishing or otherwise limiting Tenant from the requirement to fully and
faithfully perform its obligations under the Lease with respect to Hazardous
Materials, including, without limitation, Tenant's indemnification of the
Indemnitees and compliance with all Environmental Laws, or (b) imposing upon
Landlord, directly or indirectly, any duty or liability with respect to any such
Hazardous Materials, including, without limitation, any duty on Landlord to
investigate or otherwise verify the accuracy of the representations and
statements made therein or to ensure that Tenant is in compliance with all
Environmental Laws; (i) the delivery of such certificate to Landlord and/or
Landlord's acceptance of such certificate, (ii) Landlord's review and approval
of such certificate, (iii) Landlord's failure to obtain such certificate from
Tenant at any time, or (iv) Landlord's actual or constructive knowledge of the
types and quantities of Hazardous Materials being used, stored, generated,
disposed of or transported on or about the Premises by Tenant or Tenant's
Representatives. Notwithstanding the foregoing or anything to the contrary
contained herein, the undersigned acknowledges and agrees that Landlord and its
partners, lenders and representatives may, and will, rely upon the statements,
representations, warranties and certifications made herein and the undersigned
acknowledges and agrees that Landlord and its partners, lenders and
representatives, may, and will rely upon the statements, representations,
warranties, and certifications made herein and the truthfulness thereof in
entering into the Lease Agreement and the continuance thereof throughout the
term, and any renewals thereof, of the Lease Agreement.
I (print name)____________________________, acting with full authority to
bind the (proposed) Tenant and on behalf of the (proposed) Tenant, certify,
represent and warrant that the information contained in this certificate is true
and correct.
(PROSPECTIVE) TENANT:
By:_____________________________________
Title: _________________________________
Date: _________________________________
FIRST AMENDMENT TO LEASE AGREEMENT
This First Amendment to Lease Agreement (the "Amendment") is made to be
effective as of October 1, 2002 (the "Amendment Effective Date"), by and between
MILPITAS INDUSTRIAL PROPERTIES, INC., A DELAWARE CORPORATION ("Landlord"), and
VIKO TECHNOLOGY INC., A CALIFORNIA CORPORATION, DBA ADAPTIVE ELECTRONICS
("Tenant"), with reference to the following facts.
RECITALS
A. Landlord and Tenant have entered into that certain Lease Agreement,
dated as of June 4, 1998 (the "Lease"), for the Leasing of those certain
premises consisting of approximately 25,200 rentable square feet located at 0000
Xxxxxx Xxxx, Xxxxx X xxx X, Xxx Xxxx, Xxxxxxxxxx (the "Original Premises"), as
such Original Premises are more fully described in the Lease.
B. Landlord and Tenant now wish to amend the Lease to provide for,
among other things (I) the extension of the Term of the Lease, and (II) the
expansion of the Original Premises to include those certain premises consisting
of approximately 12,296 rentable square feet located at 0000 Xxxxxx Xxxx, Xxxx X
(the "Expansion Premises"). The Expansion Premises are depicted on the site plan
attached hereto as Exhibit A and made a part hereof. The foregoing modifications
of the Lease shall be upon, and shall be subject to, each of the terms,
conditions, and provision set forth herein.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Landlord and Tenant hereby agree as follows:
1. RECITALS: Landlord and Tenant agree that the above recitals are true
and correct and are hereby incorporated herein as though set forth in full.
2. TERM: The Expiration Date of the Lease which was originally
scheduled to expire on March 31, 2003, is hereby extended until that date (the
"Revised Expiration Date") which is sixty (60) months after the EP Commencement
Date (defined below), unless sooner terminated in accordance with the provision
of the Lease. Accordingly, the Revised Expiration Date is September 30, 2007.
The 60-month period from and after the EP Commencement Date through the Revised
Expiration Date shall hereinafter be referred to as the "Term" and any and all
references thereto in the Lease shall be modified accordingly. From and after
the Amendment Effective Date, any and all references to the "Expiration Date" in
the Lease shall mean and refer to the Revised Expiration Date referred to
herein.
3. ADDITION OF EXPANSION PREMISES:
3.1 Commencing on October 1, 2002 (the "EP Commencement Date"),
the Original Premises shall be expanded to include the Expansion Premises leased
on all of the same terms and conditions as set forth in the Lease, except as
otherwise expressly set forth in this Amendment. From and after the EP
Commencement Date, the "Premises" as defined in the Basic Lease Information and
in Section 1 of the Lease, shall mean and refer to both the Original Premises
and the Expansion Premises which, in the aggregate, consist of approximately
37,496 rentable square feet located at 0000 Xxxxxx Xxxx, Xxxxx X, X and C, San
Jose, California. Accordingly, from and after the EP Commencement Date, all
references in this Amendment and in the Lease to the term "Premises" shall mean
and refer to the aggregate of the Original Premises and the Expansion Premises.
Landlord and Tenant hereby agree that for purposes of the Lease, from and after
the EP Commencement Date, the rentable square footage area of the Premises shall
be conclusively deemed to be 37,496 rentable square feet.
3.2 Notwithstanding anything to the contrary contained herein or
in the Lease. Landlord shall neither be subject to any liability, nor shall the
validity of the Lease be affected if Landlord is not able to deliver to Tenant
possession of the Expansion Premises by the EP Commencement Date. The Base Rent
for both the Original Premises and the Expansion Premises shall be as set forth
in Paragraph 4 below.
4. BASE RENT; ADDITIONAL RENT:
4.1 The Basic Lease Information and Section 3 of the Lease are
hereby modified to provide that as of the EP Commencement Date the monthly Base
Rent payable by Tenant to Landlord, in accordance with the provisions of Section
3 of the Lease, shall be as follows:
ORIGINAL PREMISES EXPANSION PREMISES TOTAL AMOUNT OF
PERIOD MONTHLY BASE RENT MONTHLY BASE RENT MONTHLY BASE RENT
------ ----------------- ----------------- -----------------
10/1/02-11/20/02 $ 0.00 $ 0.00 $ 0.00
11/21/02-2/18/03 $16,128.00 $ 0.00 $16,128.00
2/19/03-9/30/03 $16,128.00 $7,869.44 $23,997.44
10/1/03-9/30-04 $16,632.00 $8,115.36 $24,747.36
10/1/04-9/30/05 $17,136.00 $8,361.28 $25,497.28
10/1/05-9/30/06 $17,640.00 $8,607.20 $26,247.20
10/1/06-9/30/07 $18,144.00 $8,853.12 $26,997.12
4.2 ADDITIONAL RENT Commencing on the Amendment Effective Date and
continuing throughout the Term of the Lease, Tenant is responsible for the
timely payment of all Additional Rent, including without limitation, Operating
Expenses, Tax Expenses, Common Area Utility Costs and Utility Expenses for both
the Original Premises and the Expansion Premises as required by Sections 3 and 6
of the Lease.
5. ADVANCE RENT: Concurrently with Tenant's execution of this
Amendment, Tenant shall pay to Landlord the amount of Sixteen Thousand One
Hundred Twenty-Eight Dollars ($16,128.00) which shall represent Tenant's first
monthly installment of Base Rent payable for both the Original Premises and the
Expansion Premises.
6. CONDITION OF THE EXPANSION PREMISES: Subject to the provisions of
Paragraph 3 above, on the EP Commencement Date Landlord shall deliver to Tenant
possession of the Expansion Premises in its then existing "AS IS", condition and
state of repair, and Landlord shall not be obligated to provide or pay for any
improvement, remodeling or refurbishment work or services related to the
improvement, remodeling or refurbishment of the Expansion Premises except for
Landlord's provision of the EP Tenant Improvement Allowance, subject to, and as
expressly set forth in Exhibit B attached hereto and made a part hereof. The EP
Tenant Improvements (as defined in Exhibit B) shall be installed by Tenant in
accordance with the terms, conditions, criteria and provisions set forth in
Exhibit B hereto, and not pursuant to Exhibit B attached to the Lease which is
not applicable to the Expansion Premises. The EP Tenant Improvements constructed
hereunder shall comply with the requirements of the Americans with Disabilities
Act, a federal law codified at 42 U.S.C. 12101 et seq., including, but not
limited to Title III thereof, all regulations and guidelines related thereto and
all requirements of Title 24 of the State of California, and all costs incurred
for purposes of compliance therewith shall be a part of and included in the
costs of the EP Tenant Improvements. By taking possession of the Expansion
Premises, Tenant is deemed to have accepted the Expansion Premises in good
condition and state of repair. Any exception to the foregoing provisions must be
made by express written agreement signed by both parties. Tenant acknowledges
that no representations or warranties of any kind, express or implied,
respecting the condition of the Expansion Premises, Building, or Park or have
been made by Landlord or any agent of Landlord to Tenant, except as expressly
set forth herein. Tenant further acknowledges and agrees that the EP Tenant
Improvements described in Exhibit B attached hereto will be installed and
constructed by Tenant in the Expansion Premises and the completion of such EP
Tenant Improvements therein shall not affect Tenant's obligation to pay Rent and
to perform all of Tenant's covenants and obligations under the Lease and this
Amendment. Tenant hereby expressly (I) agrees that Tenant shall have no right or
claim to any abatement, offset or other deduction of the amount of Rent payable
by Tenant for the Original Premises and/or the Expansion Premises due to the
installation and construction of any EP Tenant Improvements, (II) grants
Landlord access to any and all of the Original Premises and Expansion Premises
to inspect Tenant's construction of the EP Tenant Improvements and to exercise
all other rights conferred upon Landlord under the Lease, including the
Amendment and Exhibit B hereto, (III) agrees to not interfere, and to not allow
any of Tenant's Representatives to interfere, with the other tenants in the
Building and the Park, (IV) agrees that Tenant's employees, agents, contractors,
consultants, workmen, mechanics, suppliers and invitees shall fully cooperate,
work in harmony and not, in any manner, unreasonably interfere with Landlord's
work in other areas of the Building or the Park, or the general operation of the
Building, and (V) assumes any and all liability and responsibility for any
damage to the Original Premises, the Expansion Premises and Tenant's personal
property, trade fixtures, furnishings, equipment and goods located therein or
thereabout arising in any manner or related to Tenant's installation and
construction of the EP Tenant Improvements.
7. SECURITY DEPOSIT: Concurrently with Tenant's execution of this
Amendment, Tenant shall deposit with Landlord the sum of Five Thousand Seventy
Three and 12/100ths Dollars ($5073.12) (the "EP Security Deposit") . The EP
Security Deposit shall be subject to, and the use and application thereof
governed by, Section 4 of the Lease. The EP Security Deposit shall be added to
the Security Deposit presently being held by Landlord under the lease in the
amount of Twenty One Thousand, Nine Hundred Twenty Four Dollars ($21,924.00)
(the "Original Security Deposit"). From and after the Amendment Effective Date,
the term "Security Deposit" as used in the Lease shall mean and refer to both
the EP Security Deposit and the Original Security Deposit in the aggregate
amount of Twenty-Six Thousand Nine Hundred Ninety-Seven and 12/100ths Dollars
($26,997.12).
8. TENANT'S SHARE OF OPERATING EXPENSES: Effective as of the EP
Commencement Date, Tenant's Share of Operating Expenses (as defined in the Basic
Lease Information and Section 6 of the Lease) shall be increased to 17.21% of
the Park.
9. TENANT'S SHARE OF TAX EXPENSES: Effective as of the EP Commencement
Date, Tenant's Share of Tax Expenses (as defined in the Basic Lease Information
and Section 6 of the Lease) shall be increased to 60.09% of Building B.
10. TENANT'S SHARE OF UTILITY EXPENSES: Effective as of the EP
Commencement Date, Tenant's Share of Utility Expenses (as defined in the Basic
Lease Information and Section 6 of the Lease) shall be increased to 17.21% of
the Park.
11. TENANT'S SHARE OF COMMON AREA UTILITY COSTS: Effective as of the EP
Commencement Date, Tenant's Share of Common Area Utility Costs (as defined in
the Basic Lease Information and Section 6 of the Lease) shall be increased to
17.21% of the Park.
12. UNRESERVED PARKING SPACES: Effective as of the EP Commencement Date,
the number of parking spaces available to Tenant (As specified in the Basic
Lease Information) shall be increased to 35 non-exclusive and non-designated
parking spaces.
13. INSURANCE: Concurrently with Tenant's execution of this Amendment,
Tenant shall deliver to Landlord those certificates of insurance evidencing that
the Expansion Premises are included within and covered by Tenant's insurance
policies required to be carried by Tenant pursuant to the Lease, including
without limitation, those insurance policies specified in Exhibit B hereto.
14. BROKERS: Tenant warrants that, with the exception of BT Commercial,
it has had no dealings with any real estate broker or agent in connection with
the negotiation of this Amendment whose commission shall be payable by Landlord.
If Tenant has dealt with any person, real estate broker or agent with respect to
this Amendment, Tenant shall be solely responsible for the payment of any fee
due to said person or firm, and tenant shall indemnify, defend and hold Landlord
free and harmless against any claims, judgments, damages, costs, expenses, and
liabilities with respect thereto, including attorney's fee and costs.
15. BUILDING OPERATING SYSTEMS: Landlord shall deliver the Expansion
Premises with the existing building operating systems serving the Expansion
Premises, including electrical, mechanical and plumbing systems, in good working
condition as of the EP Commencement Date and Tenant shall have a period of
ninety (90) days after the EP Commencement Date to notify Landlord, in writing,
if any of such building operating systems are not in good working condition (the
"BOS Notice"). After receipt by Landlord of the BOS Notice from Tenant (which
notice shall specify in reasonable detail the nature and extent of such problems
and items of disrepair), Landlord shall use commercially reasonable efforts to
cause the prompt correction and/or repair of such problems and items of
disrepair. If Tenant fails to timely deliver to Landlord such BOS Notice within
said ninety (90) day period, Landlord shall have no obligation to perform any
such work thereafter, except as otherwise specifically provided in Section 11.2
of the Lease.
16. EFFECT OF AMENDMENT : Except as modified herein, the terms and
conditions of the Lease shall remain unmodified and continue in full force and
effect. In the event of any conflict between the terms and conditions of the
Lease and this Amendment, the terms and conditions of this Amendment shall
prevail and control.
17. DEFINITIONS: Unless otherwise defined in this Amendment, all terms
not defined in this Amendment shall have the meanings ascribed to such terms in
the Lease.
18. AUTHORITY: Subject to the assignment and subletting provisions of
the Lease, this Amendment shall be binding upon and inure to the benefit of the
parties hereto, their respective heirs, legal representatives, successors and
assigns. Each party hereto and the persons signing below warramt that the person
signing below on such party's behalf is authorized to do so and to bind such
party to the terms of this Amendment.
19. INCORPORATION: The terms and provisions of the Lease are hereby
incorporated in this Amendment.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date and
year first above written.
TENANT:
VIKO TECHNOLOGY, INC.,
A CALIFORNIA CORPORATION
DBA ADAPTIVE ELECTRONICS
By: /s/ Xxxx xx Xxxxxxxx
------------------------------------
Name: Xxxx xx Xxxxxxxx
Title: V.P.
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
LANDLORD:
MILPITAS INDUSTRIAL PROPERTIES, INC..
A DELAWARE CORPORATION
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
EXHIBIT A
EXPANSION PREMISES
This exhibit, entitled "Premises", is and shall constitute Exhibit A to that
certain First Amendment to Lease Agreement dated September 26, 2002 (the
"Amendment"), by and between MILPITAS INDUSTRIAL PROPERTIES, INC., a Delaware
corporation ("Landlord") and VIKO TECHNOLOGY INC., a California corporation, dba
Adaptive Electronics ("Tenant") for the leasing of certain premises located in
the 0000 Xxxxxx Xxxx, Xxxx X, Xxx Xxxx, Xxxxxxxxxx (the "Expansion Premises").
The Expansion Premises consist of the rentable square footage of space specified
in the Basic Lease Information and has the address specified in the Basic Lease
Information. The Premises are a part of and are contained in the Building
specified in the Basic Lease Information. The cross-hatched area depicts the
Premises within the Building:
[FLOOR PLAN]
EXHIBIT B TO FIRST AMENDMENT TO LEASE AGREEMENT
EP TENANT IMPROVEMENTS
This exhibit, entitled "EP Tenant Improvements", is and shall constitute Exhibit
B to that certain First Amendment to Lease Agreement made to be effective as of
October 1, 2002 (the "Amendment"), by and between Milpitas Industrial
Properties, Inc., a Delaware corporation ("Landlord"), and Viko Technology,
Inc., a California corporation, dba Adaptive Electronics ("Tenant"), for the
leasing of, among other premises, the Expansion Premises, located at 0000 Xxxxxx
Xxxx, Xxxx X, Xxx Xxxx, Xxxxxxxxxx. The terms, conditions and provisions of this
Exhibit B are hereby incorporated into and are made a part of the Amendment. Any
capitalized terms used herein and not otherwise defined herein shall have the
meaning ascribed to such terms as set forth in the Lease or the Amendment, as
applicable.
1. TENANT TO CONSTRUCT EP TENANT IMPROVEMENTS. Subject to the provisions
below,Tenant shall be solely responsible for the planning, construction and
completion of the interior tenant improvements ("EP Tenant Improvements") to the
Expansion Premises, in accordance with the terms, conditions and provisions of
this Exhibit B. The EP Tenant Improvements shall not include any of Tenant's
personal property, trade fixtures, furnishings, equipment or similar items.
Additionally, the EP Tenant Improvements shall not include any alterations,
additions or improvements to any portion of the Original Premises.
2. TENANT IMPROVEMENT PLANS.
A. PRELIMINARY PLANS AND SPECIFICATIONS. Promptly after execution of
the Amendment, Tenant shall retain a licensed and insured architect
("Architect") to prepare preliminary working architectural and engineering plans
and specifications ("Preliminary Plans and Specifications") for the EP Tenant
Improvements. Tenant shall deliver the Preliminary Plans and Specifications to
Landlord. The Preliminary Plans and Specifications shall be in sufficient detail
to show locations, types and requirements for all heat loads, people loads,
floor loads, power and plumbing, regular and special HVAC needs, telephone
communications, telephone and electrical outlets, lighting, lighting fixtures
and related power, and electrical and telephone switches. Landlord shall
reasonably approve or disapprove the Preliminary Plans and Specifications within
five (5) days after Landlord receives the Preliminary Plans and Specifications
and, if disapproved, Landlord shall return the Preliminary Plans and
Specifications to Tenant, who shall make all necessary revisions within ten (10)
days after Tenant's receipt thereof. This procedure shall be repeated until
Landlord approves the Preliminary Plans and Specifications. The approved
Preliminary Plans and Specifications, as modified, shall be deemed the "Final
Preliminary Plans and Specifications".
B. FINAL PLANS AND SPECIFICATIONS. After the Final Preliminary Plans
and Specifications are approved by Landlord and are deemed to be the Final
Preliminary Plans and Specifications, within twenty (20) days following
Landlord's approval of the Final Preliminary Plans and Specifications, Tenant
shall cause the Architect to prepare the final working architectural and
engineering plans, specifications and drawings, ("Final Plans and
Specifications") for the EP Tenant Improvements. Tenant shall then deliver the
Final Plans and Specifications to Landlord. Landlord shall reasonably approve or
disapprove the Final Plans and Specifications within five (5) days after
Landlord receives the Final Plans and Specifications and, if disapproved,
Landlord shall return the Final Plans and Specifications to Tenant who shall
make all necessary revisions within ten (10) days after Tenant's receipt
thereof. This procedure shall be repeated until Landlord approves, in writing,
the Final Plans and Specifications. The approved Final Plans and Specifications,
as modified, shall be deemed the "Construction Documents".
C. MISCELLANEOUS. All deliveries of the Preliminary Plans and
Specifications, the Final Preliminary Plans and Specifications, the Final Plans
and Specifications, and the Construction Documents shall be delivered by
messenger service, by personal hand delivery or by overnight parcel service.
While Landlord has the right to approve the Preliminary Plans and
Specifications, the Final Preliminary Plans and Specifications, the Final Plans
and Specifications, and the Construction Documents, Landlord's interest in doing
so is to protect the Expansion Premises, the Original Premises, the Building and
Landlord's interest therein. Accordingly, Tenant shall not rely upon Landlord's
approvals and Landlord shall not be the guarantor of, nor responsible for, the
adequacy and correctness or accuracy of the Preliminary Plans and
Specifications, the Final Preliminary Plans and Specifications, the Final Plans
and Specifications, and the Construction Documents, or the compliance thereof
with applicable laws, and Landlord shall incur no liability of any kind by
reason of granting such approvals.
D. BUILDING STANDARD WORK. The Construction Documents shall provide
that the EP Tenant Improvements to be constructed in accordance therewith must
be at least equal, in quality, to Landlord's building standard materials,
quantities and procedures then in use by Landlord ("Building Standards")
attached hereto as Exhibit B-2, and shall consist of improvements which are
generic in nature.
E. CONSTRUCTION AGREEMENTS. Tenant hereby covenants and agrees that a
provision shall be included in each and every agreement made with the Architect
and the Contractor with respect to the EP Tenant Improvements specifying that
Landlord shall be a third party beneficiary thereof, including without
limitation, a third party beneficiary of all covenants, representations,
indemnities and warranties made by the Architect and/or Contractor.
3. PERMITS. Tenant, at its sole cost and expense (subject to the provisions
of Paragraph 5 below), shall obtain all governmental approvals of the
Construction Documents to the full extent necessary for the issuance of a
building permit for the EP Tenant Improvements based upon such Construction
Documents. Tenant, at its sole cost and expense, shall also cause to be obtained
all other necessary approvals and permits from all governmental agencies having
jurisdiction or authority for the construction and installation of the EP Tenant
Improvements in accordance with the approved Construction Documents. Tenant at
its sole cost and expense (subject to the provisions of Paragraph 5 below) shall
undertake all steps necessary to ensure that the construction of the EP Tenant
Improvements is accomplished in strict compliance with all statutes, laws,
ordinances, codes, rules, and regulations applicable to the construction of the
EP Tenant Improvements and the requirements and standards of any insurance
underwriting board, inspection bureau or insurance carrier insuring the
Expansion Premises and/or the Building.
4. CONSTRUCTION.
A. Tenant shall be solely responsible for the construction,
installation and completion of the EP Tenant Improvements in accordance with the
Construction Documents approved by Landlord. Tenant is solely responsible for
the payment of all amounts when payable in connection therewith without any cost
or expense to Landlord, except for Landlord's obligation to contribute the EP
Tenant Improvement Allowance (defined below) in accordance with the provisions
of Paragraph 5 below. Tenant shall diligently proceed with the construction,
installation and completion of the EP Tenant Improvements in accordance with the
Construction Documents and the completion schedule reasonably approved by
Landlord. No material changes shall be made to the Construction Documents and
the Completion schedule approved by Landlord without Landlord's Prior written
consent, which consent shall not be unreasonably withheld or delayed.
B. Tenant, at its sole cost and expense (subject to the provisions of
Paragraph 5 below), shall employ a licensed, insured and bonded general
contractor ("Contractor") to construct the EP Tenant Improvements in accordance
with the Construction Documents. The construction contracts between Tenant and
the Contractor and between the Contractor and subcontractors shall be subject to
Landlord's prior written approval, which approval shall not be unreasonably
withheld or delayed. Proof that the contractor is licensed in California, is
bonded as required under California law, and has the insurance specified in
Exhibit B-1, attached hereto and incorporated herein by this reference, shall be
provided to Landlord at the time that Tenant requests approval of the Contractor
from Landlord. Tenant shall comply with or cause the Contractor to comply with
all other terms and provisions of Exhibit B-1.
C. Prior to the commencement of the construction and installation of
the EP Tenant Improvements, Tenant shall provide the following to Landlord, all
of which shall be to Landlord's reasonable satisfaction;
(i) An estimated budget and cost breakdown for the EP Tenant
Improvements;
(ii) Estimated completion schedule for the EP Tenant Improvements;
(iii) Copies of all required approvals and permits from governmental
agencies having jurisdiction or authority for the construction and
installation of the EP Tenant Improvements; provided, however, if prior to
commencement of the construction and installation of EP Tenant
Improvements, Tenant has not received the electrical, plumbing or
mechanical permits, Tenant shall only be required to provide Landlord with
evidence that Tenant has made application therefor, and, upon receipt by
Tenant of such permits, Tenant shall promptly provide Landlord with copies
thereof; and
(iv) Evidence of Tenant's procurement of insurance required to be
obtained pursuant to the provisions of Paragraphs 4.B and 4.G.
D. Landlord shall, at all reasonable times, have a right to inspect the
Expansion Premises and the EP Tenant Improvements (provided Landlord does not
materially interfere with the work being performed by the Contractor or its
subcontractors) and Tenant shall immediately cease work upon written notice from
Landlord if the EP Tenant Improvements are not in compliance with the
Construction Documents approved by Landlord. If Landlord shall give notice of
faulty construction or any other deviation from the Construction Documents,
Tenant shall cause the Contractor to make corrections promptly. However, neither
the privilege herein granted to Landlord to make such inspections, nor the
making of such inspections by Landlord, shall operate as a waiver of any rights
of Landlord to require good and workmanlike construction and improvements
constructed in accordance with the Construction Documents.
E. Subject to Landlord complying with its obligations in Paragraph 5
below, Tenant shall pay and discharge promptly and fully all claims for labor
done and materials and services furnished in connection with the EP Tenant
Improvements. The EP Tenant Improvements shall not be commenced until five(5)
business days after Landlord has received notice from Tenant stating the date
the construction of the EP Tenant improvements is to commence so that Landlord
can post and record any appropriate Notice of Non-responsibility.
F. Tenant acknowledges and agrees that the agreements and covenants of
Tenant made in the Lease and the Amendment shall be fully applicable to Tenant's
construction of the EP Tenant Improvements.
G. Tenant shall maintain, and cause to be maintained, during the
construction of the EP Tenant Improvements, at its sole cost and expense,
insurance of the types and in the amounts specified in Exhibit B-1 and in
Section 12 of the Lease, together with builders' risk insurance for the amount
of the completed value of the EP Tenant Improvements on an all-risk
non-reporting form covering all improvements under construction, including
building materials, and other insurance in amounts and against such risks as the
landlord shall reasonably require in connection with the EP Tenant Improvements.
H. No materials, equipment or fixtures shall be delivered to or
installed upon the Expansion Premises pursuant to any agreement by which another
party has a security interest or rights to remove or repossess such items,
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld.
I. Landlord reserves the right to establish reasonable rules and
regulations for the use of the Building during the course of construction of the
EP Tenant Improvements, including, but not limited to, construction parking,
storage of materials, hours of work, use of elevators, and clean-up of
construction related debris.
J. Upon completion of the EP Tenant Improvements, Tenant shall deliver
to Landlord the following, all of which shall be to Landlord's reasonable
satisfaction:
(i) Any certificates required for occupancy, including a permanent
and complete Certificate of Occupancy issued by the City of San Xxxx.
(ii) A Certificate of Completion signed by the Architect who
prepared the Construction Documents, reasonably approved by Landlord.
(iii) A cost breakdown itemizing all expenses for the EP Tenant
Improvements, together with invoices and receipts for the same or other
evidence of payment.
(iv) Final and unconditional mechanic's lien waivers for all the EP
Tenant Improvements.
(v) A Notice of Completion for execution by Landlord, which
certificate once executed by Landlord shall be recorded by Tenant in the
official records of the Country of Santa Xxxxx, and Tenant shall then
deliver to Landlord a true and correct copy of the recorded Notice of
Completion.
(vi) A true and complete copy of all as-built plans and drawings
for the EP Tenant Improvements.
K. Tenant shall keep the Expansion Premises, the Original Premises, the
Building and the Park free from all liens and shall indemnify, defend (with
counsel reasonably satisfactory to Landlord), protect, and hold Landlord and the
other Indemnities, harmless from and against any and all claims, demands,
liabilities, judgments, penalties, losses, costs, damages, and expenses
(including, without limitation, attorneys' and experts' fees and costs) relating
to or arising in any manner whatsoever from the EP Tenant Improvements, Tenant's
construction work in the Building or the Premises, or any damage to the Park,
Building or Premises or injury to any personal property or person therein in
connection therewith. Notwithstanding any provision to the contrary in this
Amendment, the indemnity obligations of Tenant under this Amendment shall
survive any termination of this Amendment or the Lease. In addition to the
foregoing indemnity, if there is any damage to the Park, Building or Premises
caused by Tenant's or any of Tenant's Representatives' entry in or on the Park,
Building or Premises in connection with Tenants installation and construction of
the EP Tenant Improvements, Tenant shall immediately restore the Park, Building
or Premises substantially to the same condition existing prior to Tenants and
Tenant's Representatives' entry in, on or about the Park, Building or Premises
for such purpose. Nothing herein shall diminish or excuse Tenant from its
indemnity obligations in Section 14 of the Lease.
5. EP TENANT IMPROVEMENT ALLOWANCE.
A. Subject to Tenant's compliance with the provisions of the Lease and
this Exhibit B, Landlord shall provide to Tenant an allowance in the amount of
One Hundred Twelve Thousand Four Hundred Eight-eight Dollars ($112,488.00) (the
"EP Tenant Improvement Allowance"). The EP Tenant Improvement Allowance shall be
used to design, prepare, plan, obtain the approval of, construct and install the
EP Tenant Improvements and for no other purpose. Except as otherwise expressly
provided herein, Landlord shall have no obligation to contribute the EP Tenant
Improvements Allowance unless and until the Construction Documents have been
approved by Landlord and Tenant has complied with all requirements set forth in
Paragraph 4.C. of this Exhibit B. In addition to the foregoing, Landlord shall
have no obligation to disburse all or any portion of the EP Tenant Improvement
Allowance to Tenant unless Tenant makes a progress payment request pursuant to
the terms and conditions of Paragraph 5.B. below prior to that date which is six
(6) months after the EP Commencement Date. The costs to be paid out of the EP
Tenant Improvement Allowance shall include all reasonable costs and expenses
associated with the design, preparation, approval, planning, construction and
installation of the EP Tenant Improvements (collectively, the "EP Tenant
Improvement Costs"), including all of the following:
(i) All costs of the Preliminary Plans and Specifications, the
Final Plans and Specifications, and the Construction Documents, and
engineering costs associated with completion of the State of California
energy utilization calculations under Title 24 legislation;
(ii) All costs of obtaining building permits and other necessary
authorizations from local governmental authorities;
(iii) All costs of interior design and finish schedule plans and
specifications including as-built drawings, if applicable;
(iv) All direct and indirect costs of procuring, constructing and
installing the EP Tenant Improvements in the Expansion Premises,
including, but not limited to, the construction fee for overhead and
profit and the cost of all on-site supervisory and administrative staff,
office, equipment and temporary services rendered by the Contractor in
connection with the construction of the EP Tenant Improvements; provided,
however, that the construction fee for overhead and profit, the cost of
all on-site supervisory and administrative staff, office, equipment and
temporary services shall not exceed amounts which are reasonable and
customary for such items in the local construction industry;
(v) All fees payable to the Architect and any engineer if they are
required to redesign any portion of the EP Tenant Improvements following
Tenant's and Landlord's approval of the Construction Documents;
(vi) Utility connection fees;
(vii) Inspection fees and filing fees payable to local governmental
authorities, if any;
(viii) All costs of all permanently affixed equipment and non-trade
fixtures provided for in the Construction Documents, including the cost of
installation; and,
(ix) A construction management fee payable to Landlord in the
amount of five percent (5%) of the aggregate of the Excess EP Tenant
Improvement Costs (defined below) and the EP Tenant Improvement Allowance
(the "CM Fee").
The EP Tenant Improvement Allowance shall be the maximum contribution by
Landlord for the EP Tenant Improvement Costs, and the disbursement of the EP
Tenant Improvement Allowance is subject to the terms contained hereinbelow.
B. Except for payment of the CM Fee, and subject to the provisions of
Paragraph 5.A. above, Landlord will make payments to Tenant from the EP Tenant
Improvement Allowance to reimburse Tenant for EP Tenant Improvement Costs paid
or incurred by Tenant in accordance with the provisions of this Exhibit B.
Payment of the CM Fee shall be the first payment from the EP Tenant Improvement
Allowance and shall be made by means of a deduction or credit against the EP
Tenant Improvement Allowance. All other payments of the EP Tenant Improvement
Allowance shall be by progress payments not more frequently than once per month
and only after satisfaction of the following conditions precedent: (a) receipt
by Landlord of conditional mechanics' lien releases for the work completed and
to be paid by said progress payment, conditioned only on the payment of the sums
set forth in the mechanics' lien release, executed by the Contractor and all
subcontractors, labor suppliers and material men; (b) receipt by Landlord of
unconditional mechanics' lien releases from the Contractor and all
subcontractors, labor suppliers and materialmen for all work other than that
being paid by the current progress payment previously completed by the
Contractor, subcontractors, labor suppliers and materialmen and for which Tenant
has received funds from the EP Tenant Improvement Allowance to pay for such
work; (c) receipt by Landlord of any and all documentation reasonably required
by Landlord detailing the work that has been completed and the materials and
supplies used as of the date of Tenant's request for the progress payment,
including, without limitation, invoices, bills or statements for the work
completed and the materials and supplies used; and (d) completion by Landlord or
Landlord's agents of any inspections of the work completed and materials and
supplies used as deemed reasonably necessary by Landlord. Except for the CM Fee
payment (credit), the EP Tenant Improvement Allowance progress payments shall be
paid to Tenant within thirty (30) days from the satisfaction of the conditions
set forth in the immediately preceding sentence. The preceding notwithstanding,
all EP Tenant Improvement Costs paid or incurred by Tenant prior to Landlord's
approval of the Construction Documents in connection with the design and
planning of the EP Tenant Improvements by Architect shall be paid from the EP
Tenant Improvement Allowance, without any retention, within thirty (30) days
following Landlord's receipt of invoices, bills or statements from Architect
evidencing such costs. Notwithstanding the foregoing to the contrary, Landlord
shall be entitled to withhold and retain five percent (5%) of the EP Tenant
Improvement Allowance or of any EP Tenant Improvement Allowance progress payment
until the lien-free expiration of the time for filing of any mechanics' liens
claimed or which might be filed on account of any work ordered by Tenant or the
Contractor or any subcontractor in connection with the construction and
installation of the EP Tenant Improvements.
C. Landlord shall not be obligated to pay any EP Tenant Improvement
Allowance progress payment or the EP Tenant Improvement Allowance retention if
on the date Tenant is entitled to receive the EP Tenant Improvement Allowance
progress payment or the EP Tenant Improvement Allowance retention Tenant is in
default of the Lease. Such payments shall resume upon Tenant curing any such
default within the time periods which may be provided for in the Lease.
D. Should the total cost of constructing the EP Tenant Improvements be
less than the EP Tenant Improvement Allowance, the EP Tenant Improvement
Allowance shall be automatically reduced to the amount equal to said actual
cost.
E. The term "Excess EP Tenant Improvement Costs" as used herein shall
mean and refer to the aggregate of the amount by which the actual EP Tenant
Improvement Costs exceed the EP Tenant Improvement Allowance. Tenant shall pay
all Excess EP Tenant Improvement Costs at the time said costs are incurred.
6. TERMINATION. If the Lease is terminated prior the date on which the EP
Tenant Improvements are completed, for any reason due to the default of Tenant
hereunder, in addition to any other remedies available to Landlord under the
Lease , Tenant shall pay to Landlord as Additional Rent under the Lease, within
five (5) days of receipt of a statement therefor, any and all costs incurred by
Landlord and not reimbursed or otherwise paid by Tenant through the date of
termination in connection with the EP Tenant Improvements to the extent planned,
installed and/or constructed as of such date of termination, including, but not
limited to, any costs related to the removal of all or any portion of the EP
Tenant Improvements and restoration costs related thereto. Subject to the
provisions of Section 10.2 of the Lease, upon the expiration or earlier
termination of the Lease, Tenant shall not be required to remove the EP Tenant
Improvements it being the intention of the parties that the EP Tenant
Improvements are to be considered incorporated into the Building.
7. LEASE PROVISIONS; CONFLICT. The terms and provisions of the Lease and the
Amendment, insofar as they are applicable, in whole or in part, to this Exhibit
B, are hereby incorporated herein by reference, and specifically including all
of the provisions of Section 31 of the Lease. In the event of any conflict
between the terms of the Lease or the Amendment and this Exhibit B, the terms of
this Exhibit B shall prevail and control. Any amounts payable by Tenant to
Landlord hereunder shall be deemed to be Additional Rent under the Lease, as
amended, and, upon any default in the payment of same, Landlord shall have all
rights and remedies available to it as provided for in the Lease, as amended.
EXHIBIT B-1
CONSTRUCTION INSURANCE REQUIREMENTS
Before commencing work, the contractor shall procure and maintain at its sole
cost and expense until completion and final acceptance of the work, at least the
following minimum levels of insurance.
A. Workers' Compensation in statutory amounts and Employers Liability
Insurance in the minimum amounts of $100,000 each accident for bodily
injury by accident and $100,000 each employee for bodily injury by disease
with a $500,000 policy limit, covering each and every worker used in
connection with the contract work.
B. Comprehensive General Liability Insurance on an occurrence basis
including, but not limited to, protection for Premises/Operations
Liability, Broad Form Contractual Liability, Owner's and Contractor's
Protective, and Products/ Completed Operations Liability*, in the
following minimum limits of liability.
Bodily Injury, Property Damage, and
Personal Injury Liability $2,000,000/each occurrence
$3,000,000/aggregate
*Products/Completed Operations Liability Insurance is to be provided for a
period of at least one (1) year after completion of work.
Coverage should include protection for Explosion, Collapse and Underground
Damage.
C. Comprehensive Automobile Liability Insurance with the following minimum
limits of liability.
Bodily Injury and Property $1,000,000/each occurrence
Damage Liability $2,000,000/aggregate
This insurance will apply to all owned, non-owned or hired automobiles to
be used by the Contractor in the completion of the work.
D. Umbrella Liability Insurance in a minimum amount of five million dollars
($5,000,000), providing excess coverage on a following-form basis over the
Employer's Liability limit in Paragraph A and the liability coverages
outlined in Paragraphs B and C.
E. Equipment and Installation coverages in the broadest form available
covering Contractor's tools and equipment and material not
accepted by Tenant. Tenant will provide Builders Risk Insurance on all
accepted and installed materials.
All policies of insurance, duplicates thereof or certificates evidencing
coverage shall be delivered to Landlord prior to commencement of any work and
shall name Landlord, and its partners and lenders as additional insureds as
their interests may appear. All insurance policies shall (1) be issued by a
company or companies licensed to be business in the state of California, (2)
provide that no cancellation, non-renewal or material modification shall be
effective without thirty (30) days prior written notice provided to Landlord,
(3) provide no deductible greater than $15,000 per occurrence, (4) contain a
waiver to subrogation clause in favor of Landlord, and its partners and lenders,
and (5) comply with the requirements of Sections 12.2, 12.3 and 12.4 of the
Lease to the extent such requirements are applicable.
EXHIBIT B-2
BUILDING STANDARDS
OUTLINE SPECIFICATION FOR
NEW OFFICE BUILD-OUT IN INDUSTRIAL BUILDINGS
OFFICE AREA
DEMISING PARTITION AND CORRIDOR WALLS:
Note: One hr. rated walls where required based on occupancy group.
A. 6" 20-gage metal studs at 24" O.C. (or as required by code based on roof
height) framed full height from finish floor to surface above.
B. One (1) layer 5/8" drywall Type "X" both sides of wall, fire taped only.
INTERIOR PARTITIONS:
A. 3-5/8" 25-gage metal studs at 24" O.C. to bottom of T-Bar ceiling grid
approximately 9' 0" high.
B. One (1) layer 5/8" drywall both sides of wall, smooth ready for paint.
C. 3-5/8" metal studs including all lateral bracing as required by code.
PERIMETER DRYWALL (AT OFFICE AREAS):
A. 3-5/8" metal studs @ 24" O.C. to 12' 0" above finished floor. (or as
required by Title-24 for full height envelope then use demising wall
spec.)
B. One (1) layer 5/8" Type "X" drywall taped smooth and ready for paint.
COLUMN FURRING:
A. Furring channel all sides of 2-1/2" metal studs per details.
B. One (1) layer 5/8" drywall taped smooth and ready for paint.
C. Columns within walls shall be furred-out.
ACOUSTICAL CEILINGS:
Note: Gyp. Bd. ceiling at all restrooms Typ.
A. 2' x 4' standard white T-Bar grid system as manufactured by Chicago
Metallic of equal.
B. 2' x 4' x 5/8" white, fissured, no-directional acoustical tile to be
Cortega as manufactured by Xxxxxxxxx or equal.
PAINTING:
A. Sheetrock walls within office to receive two (2) coats of interior latex
paint as manufactured by Xxxxx Xxxxx or equal. Some portions of second
coat to be single accent color.
B. Semigloss paint all restrooms and lunch rooms.
WINDOW COVERING:
A. 1" aluminum mini-blinds as manufactured by Levelor, Bali or equal, color
to be selected by Legacy Partners Commercial, Inc.
B. Blinds to be sized to fit window module.
VCT:
A. VCT to be 1/8" x 12" x 12" as manufactured by Xxxxxxxxx-Excelon Series or
equal.
B. Slabs shall be water proofed per manufacturer recommendations, at sheet
vinyl or VCT areas.
LIGHT FIXTURES:
A. 2" x 4" T-bar lay in 3-tube energy efficient fixture with cool white
fluorescent tubes with prismatic acrylic lens as manufactured by Lithonia
or equal. (Approximately 50 F.C.)
LIGHT SWITCHES:
A. Switching as required by Title 24.
B. Switching assembly to be Levinton or equal, color - White
ELECTRICAL OUTLET:
A. 110V duplex outlet in demising or interior partitions only, as
manufactured by Leviton or equal color to be White.
B. Maximum eight (8) outlets per circuit, spacing to meet code or minimum 2
per office, conference room, reception and 2 dedicated over cabinet at
lunch room junction boxes above ceiling for large open area with furniture
partitions.
C. Transformers to be a minimum of 20% or over required capacity.
D. Contractors to inspect electric room and to include all necessary metering
cost.
E. No aluminum wiring is acceptable.
TELEPHONE/DATA OUTLET:
A. One (1) single outlet box in wall with pullwire from outlet box to area
above T-bar ceiling per office.
B. Cover plate for phone outlets by telephone/data vendors.
FIRE SPRINKLERS:
As required by fire codes.
TOPSET BASE:
A. 4" rubber base as manufactured by Xxxxx or equal, standard colors only.
B. 4" rubber base at VCT areas.
TOILET AREAS:
Wet walls to receive duraboard or wondslboard and marlite up to 48". Floor to
receive sheetvinyl and self coved base as required by code.
CARPET:
Note any of the following carpets are acceptable
Designweave: Alumni 28 oz., Windswept Classic 30 oz. or Xxxxxxxx Design Series
III 30 oz, Structure II 28 oz.
WOOD DOORS:
Shall be 3' 0" x 7' 0" x 1-3/4" (unless otherwise specified) solid core,
prefinished harmony (rotary X. xxxxx).
DOOR FRAMES:
Shall be ACI or equal, 3-3/4" or 4-7/8" throat, aluminum, standard black,
snap-on trim.
HARDWARE:
1-1/2 pr. butts F179 Xxxxxxx, Latchset D10S Xxxxxx Schlage, Lockset D53PD Xxxxxx
Schlage, Dome Type floor stop Xxxxx Xxxxxxx FB13, Closer 4110LCN (where
required)
INSULATION:
By Title 24 insulation.
PLUMBING:
A. Shall comply with all local codes and handicapped code requirements.
Fixtures shall be either "American Standard", "Kohler" or "Xxxxxx". All
toilet accessories and grab bars shall be "Bobrick" or equal and approved
by owner.
B. Plumbing bid shall include 5 gallon minimum hot water heater, or insta hot
with mixer valve including all connections.
TOILET PARTITIONS:
Shall be as manufactured by Fiat, global or equal if approved by owner. Color
shall be chosen by tenant.
HVAC:
HVAC units per specifications.
Five (5) year warranty provided on all HVAC compressor units. All penetrations
including curbs and sleepers to be hot moped to Legacy Partners Commercial, Inc.
standard.
WAREHOUSE AREAS:
Floor - seal concrete with water base clear acrylic sealer.
Fire Extinguishers - 2A 10 BC surface mount by code x by S. F.
400 W metal halide lighting at warehouse minimum 5 to 7 foot candles.
Note: All high pile storage requirements are excluded for standard building T.
I.
Note: When remodeling, all materials and finishes within remodeled or expansion
areas to match existing. If code upgrades are required for hardware, fixtures,
etc. use new specifications.
ADDENDUM 1
RIGHT OF FIRST OFFER
This Addendum 1 (the "Addendum") is incorporated as a part of that certain First
Amendment to Lease Agreement (the "Amendment"), made to be effective as of
October 1, 2002, by and between VIKO TECHNOLOGY, INC., a California corporation,
dba Adaptive Electronics ("Tenant"), and MILPITAS INDUSTRIAL PROPERTIES, INC., a
Delaware corporation ("Landlord"), for the leasing of those certain premises
located at 0000 Xxxxxx Xxxx, Xxxxx X, X and C, San Jose, California (the
"Premises"). Any capitalized terms used herein and not otherwise defined herein
shall have the meaning ascribed to such terms as set forth in the Lease and the
Amendment, as applicable.
1. RIGHT OF FIRST OFFER. During the first six (6) months after the EP
Commencement Date, Tenant shall have a one-time right of first offer ("First
Offer Right") to lease that certain contiguous space within the Building
containing approximately 12,454 rentable square feet, located at 0000 Xxxxxx
Xxxx, Xxxx X, Xxx Xxxx, Xxxxxxxxxx (the "First Offer Space") which may become
available for lease, as provided herein below, as determined by Landlord. For
purposes hereof, the First Offer Space shall become available for lease to
Tenant immediately prior to the first time Landlord intends to submit to a third
party a bona fide proposal or letter of intent to lease all or any portion of
the First Offer Space. Notwithstanding anything herein to the contrary, Tenant's
First Offer Right as set forth herein shall be subject and subordinate to all
expansion, first offer and similar rights currently set forth in any lease which
has been executed as of the EP Commencement Date, as such leases may be
subsequently modified, amended or extended (collectively, the "Superior
Rights").
2. TERMS AND CONDITIONS. Landlord shall give Tenant written notice (the
"First Offer Notice") that the First Offer Space will or has become available
for lease by Tenant as provided above (as such availability is determined by
Landlord) pursuant to the terms of Tenant's First Offer Right, as set forth in
this Addendum, provided that no holder of Superior Rights desires to lease all
or any portion of the First Offer Space. Any such First Offer Notice delivered
by Landlord in accordance with the provisions of Section 1 above shall set forth
the terms upon which Landlord would lease the First Offer Space to Tenant,
including, without limitation (i) the anticipated date upon which the First
Offer Space will be available for lease by Tenant and the commencement date
therefor, (ii) the Base Rent payable for the First Offer Space, which shall be
equal to the Base Rent then being paid by Tenant under the Lease for the
Premises and adjusted to provide an effective rate at $0.63 per rentable
squarefoot, NNN, for the First Offer Space over the then remaining term of the
Lease, (iii) the tenant improvement allowance for such First Offer Space, if
any, to be provided by Landlord which, in no event shall exceed Thirty-Seven
Thousand Three Hundred Sixty-Two Dollars ($37,362.00), and (iv) the term of the
lease for the First Offer Space shall be coterminous with the Lease. On the
commencement date of the First Offer Space term, Landlord shall deliver to
Tenant possession of the First Offer Space in its then existing condition and
state of repair, "AS IS", without any obligation of Landlord to remodel, improve
or alter the First Offer Space, to perform any other construction or work of
improvement upon the First Offer Space, or to provide Tenant with any
construction or refurbishment allowance, except as otherwise set forth in clause
(iii) above. Tenant acknowledges that no representations or warranties of any
kind, express or implied, respecting the condition of the First Offer Space have
been made by Landlord or any agent of Landlord to Tenant, except as expressly
set forth herein. Tenant further acknowledges that neither Landlord nor any of
Landlord's agents, representatives or employees have made any representations as
to the suitability or fitness of the First Offer Space for the conduct of
Tenant's business, or for any other purpose. Any exception to the foregoing
provisions must be made by express written agreement signed by both parties.
3. PROCEDURE FOR ACCEPTANCE. On or before the date which is ten (10)
days after Tenant's receipt of Landlord's First Offer Notice (the "Election
Date"), Tenant shall deliver written notice to Landlord ("Tenant's Election
Notice") pursuant to which Tenant shall have the one-time right to elect either
to: (i) lease the entire First Offer Space described in the First Offer Notice
upon the terms set forth in the First Offer Notice (without variation or
deviation); or (ii) refuse to lease the First Offer Space upon the terms set
forth in the First Offer Notice. If Tenant does not respond, in writing, to
Landlord's First Offer Notice by the Election Date, Tenant shall be conclusively
deemed to have elected not to lease the First Offer Space. If Tenant elects or
is deemed to have elected not to lease the First Offer Space, then Tenant's
First Offer Right set forth in this Addendum shall terminate and Landlord shall
thereafter have the right to lease all or any portion of such First Offer Space
to anyone to whom Landlord desires on any terms Landlord desires.
4. LEASE OF FIRST OFFER SPACE. If Tenant timely exercises this First
Offer Right as set forth herein, Tenant shall simultaneously therewith provide
Landlord a non-refundable deposit, equivalent to the last month's Base Rent for
the First Offer Space and the parties shall have ten (10) business days after
Landlord receives Tenant's Election Notice and deposit from Tenant in which to
execute an amendment to the Lease adding such First Offer Space to the Premises
on all of the terms and conditions as applicable to the Premises, as modified to
reflect the terms and conditions as set forth in Landlord's First Offer Notice.
Upon full execution of an amendment for the First Offer Space, the
non-refundable deposit shall be credited toward Base Rent or the security
deposit for the First Offer Space, as agreed between the parties.
Notwithstanding anything to the contrary contained herein, Tenant must elect to
exercise its First Offer Right provided herein, if at all, with respect to all
of the space offered by Landlord to Tenant in Landlord's First Offer Notice, and
Tenant may not elect to lease only a portion thereof.
5. LIMITATIONS ON, AND CONDITIONS TO, FIRST OFFER RIGHT.
Notwithstanding anything in the foregoing to the contrary, at Landlord's option,
and in addition to all of Landlord's remedies under the Lease, at law or in
equity, the First Offer Right hereinabove granted to Tenant shall not be deemed
to be properly exercised if any of the following individual events occur or any
combination thereof occur: (i) at any time Tenant is, or has been, in default of
the performance of any of the covenants, conditions or agreements to be
performed under the Lease beyond applicable notice and cure periods; and/or (ii)
on the scheduled commencement date for Tenant's lease of the First Offer Space,
Tenant is in default under the Lease; and/or (iii) Tenant has assigned its
rights and obligations under all or part of the Lease or Tenant has subleased
all or part of the Premises; and/or (iv) Tenant's financial condition is
unacceptable to Landlord at the time Tenant's Election Notice is delivered to
Landlord; and/or (v) Tenant has failed to exercise properly this First Offer
Right in a timely
manner in strict accordance with the provisions of this Addendum; and/or (vi)
Tenant no longer has possession of all or any part of the Premises under the
Lease, or if the Lease has been terminated earlier, pursuant to the terms and
provisions of the Lease. Tenant's First Offer Right to Lease the First Offer
Space is personal to the original Tenant executing the Lease, and may not be
assigned or exercised, voluntarily or involuntarily, by or to, any person or
entity other than the original Tenant, and shall only be available to and
exercisable by the Tenant when the original Tenant is in actual and physical
possession of the entire Premises.
6. BROKERS. Tenant hereby agrees that it will solely be responsible for
any and all brokerage commissions and finder's fees payable to any broker in
connection with any of the First Offer Space described herein and Tenant shall
indemnify, defend and hold Landlord free from, and harmless against, any
liability, claim, judgment, cost, expense, loss, or damages with respect
thereto, including without limitation, attorneys' fees and costs.
ADDENDUM 2
OPTION TO EXTEND THE LEASE TERM
This Addendum 2 (the "Addendum") is incorporated as a part of that certain First
Amendment to Lease Agreement (the "Amendment"), made to be effective as of
October 1, 2002, by and between VIKO TECHNOLOGY, INC., a California corporation,
dba Adaptive Electronics ("Tenant"), and MILPITAS INDUSTRIAL PROPERTIES, INC., a
Delaware corporation ("Landlord"), for the leasing of those certain premises
located at 0000 Xxxxxx Xxxx, Xxxxxx X, X, xxx X, Xxx Xxxx, Xxxxxxxxxx (the
"Premises"). Any capitalized terms used herein and not otherwise defined herein
shall have the meaning ascribed to such terms as set forth in the Lease and the
Amendment, as applicable.
1. GRANT OF EXTENSION OPTION. Subject to the provisions, limitations and
conditions set forth in Paragraph 5 below, Tenant shall have an option (the
"Option") to extend the Term of the Lease expiring on September 30, 2007 (the
"Initial lease Term") for five (5) years (the "Extended Term").
2. TENANT'S OPTION NOTICE. Tenant shall have the right to deliver written
notice to Landlord of its intent to exercise this Option (the "Option Notice").
If Landlord does not receive the Option Notice from Tenant by that date which is
neither more than three hundred sixty-five (365) days nor less than two hundred
forty (240) days prior to the end of Initial Lease Term, all rights under this
Option shall automatically terminate and shall be of no further force or effect.
Upon Tenant's proper exercise of this Option and, subject to the provisions,
limitations and conditions set forth in Paragraph 5 below, the Initial Lease
Term shall be extended for the Extended Term.
3. ESTABLISHING THE INITIAL MONTHLY BASE RENT FOR THE EXTENDED TERM. The
Initial Monthly Base Rent for the Extended Term shall be equal to the then Fair
Market Rental Rate, as hereinafter defined. As used herein, the "Fair Market
Rental Rate" payable by Tenant for the Extended Term shall mean the Base Rent
for the highest and best use for comparable space at which non-equity tenants,
as of the commencement of the Extended Term, will be leasing non-sublease,
non-equity, unencumbered space comparable in size, location and quality to the
Premises for a comparable term, which comparable space is located in the
Building and in other comparable first-class buildings in the vicinity of the
Building, taking into consideration all out-of-pocket concessions generally
being granted at such time for such comparable space, including the condition
and value of existing tenant improvements in the Premises. The Fair Market
Rental Rate shall include the periodic rental increases that would be included
for space leased for the period of the Extended Term.
Neither Landlord nor Tenant shall have the right to have a court or any other
third party entity establish the Fair Market Rental Rate. If Landlord and Tenant
are unable to agree on the Fair Market Rental Rate for the Extended Term within
ten (10) after Landlord's receipt of the Option Notice, Landlord and Tenant
being obligated only to act in good faith, this Option shall automatically
terminate and the Lease shall terminate at the end of the Initial Lease Term,
unless earlier terminated as provided in the Lease.
In no event shall the monthly Base Rent for any period of the Extended Term be
less than the highest monthly Base Rent charged during the Initial Lease Term.
Upon determination of the initial monthly Base Rent for the Extended Term in
accordance with the terms outlined above, Landlord and Tenant shall immediately
execute, at Landlord's sole option, either the standard lease agreement then in
use by Landlord, or an amendment to the Lease. Such new lease agreement or
amendment, as the case may be, shall set forth among other things, the initial
monthly Base Rent for the Extended Term, and the actual commencement date and
expiration date of the Extended Term. Tenant shall have no other right to extend
the term of the Lease under this Addendum unless Landlord and Tenant otherwise
agree in writing.
4. CONDITION OF PREMISES AND BROKERAGE COMMISSIONS FOR THE EXTENDED TERM. If
Tenant timely and properly exercises this Option, in strict accordance with the
terms contained herein: (1) Tenant shall accept the Premises in its then "As-Is"
condition and, accordingly, Landlord shall not be required to perform any
additional improvements to the Premises; and (2) Tenant hereby agrees that it
will be solely responsible for any and all brokerage commissions and finder's
fees payable to any broker now or hereafter procured or hired by Tenant or who
otherwise claims a commission based on any act or statement of Tenant ("Tenant's
Broker") in connection with the Option. Tenant hereby further agrees that
Landlord shall in no event or circumstance be responsible for the payment of any
such commissions and fees to Tenant's Broker, and Tenant shall indemnify, defend
and hold Landlord free from, and harmless against, any liability, claim,
judgment, cost, expense, loss, or damages with respect thereto, including
without limitation, attorneys' fees and costs.
5. LIMITATIONS ON, AND CONDITIONS TO, EXTENSION OPTION. This option is
personal to Tenant and may not be assigned, voluntarily or involuntarily,
separate from or as part of the Lease. At Landlord's option, all rights of
Tenant under this Option shall terminate and be of no force or effect if any of
the following individual events occur or any combination thereof occur: (1)
Tenant has been in default at any time during the Initial Lease Term beyond
applicable notice or cure periods, or is in default of any provision of the
Lease on the date Landlord receives the Option Notice; and/or (2) Tenant has
assigned its rights and obligations under all or part of the Lease or Tenant has
subleased all or part of the Premises; and/or (3) Tenant's financial condition
is unacceptable to Landlord at the time the Option Notice is delivered to
Landlord; and/or (4) Tenant has failed to exercise properly this Option in a
timely manner in strict accordance with the provisions of this Addendum; and/or
(5) Tenant no longer has possession of all or any part of the Premises under the
Lease, or if the Lease has been terminated earlier, pursuant to the terms and
provisions of the Lease.
6. TIME IS OF THE ESSENCE. Time is of the essence with respect to each and
every time period described in this Addendum.
