Exhibit 10.43
Third Amendment to Lease Agreement
This Third Amendment to Lease Agreement (the "Amendment") is made and entered
into as of January 8, 1998, by and between AEtna Life Insurance Company, a
Connecticut corporation ("Landlord"), and Premisys Communications, Inc., a
Delaware corporation ("Tenant"), with reference to the following facts.
Recitals
A. Landlord and Premisys Communications Holdings, Inc., a California
corporation have entered into that certain Lease Agreement dated as of
October 4, 1993, and that certain First Amendment dated November 4, 1994
and that certain Second Amendment dated August 9, 1996 (hereinafter,
collectively the "Lease") for the leasing of certain premises consisting
of approximately 43,851 rentable square feet located at ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (the "Original Premises") as such Original
Premises are more fully described in the Lease.
B. Premisys Communications Holdings, Inc. assigned its interest in the Lease
to Tenant.
C. Landlord and Tenant now wish to amend the Lease to provide for, among
other things, the addition of certain space to the Original Premises, all
upon and subject to each of the terms, conditions, and provisions 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 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. Premises:
2.1 Addition of Additional Premises Subject to the provisions of
Section 2.3 below, commencing on April 1, 1998, (the "AP Commencement
Date"): there shall be added to the Original Premises those certain
premises consisting of approximately 24,590 rentable square feet located
at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (the "Additional Premises"),
which Additional Premises are depicted on the site plan attached hereto
and made a part hereof as Exhibit A.
2.2 Early Occupancy of Additional Premises On or about March 1,
1998, (the "Early Occupancy Commencement Date"), Landlord shall permit
Tenant to enter and occupy the Additional Premises prior to the AP
Commencement Date, for purposes of installing the Tenant Improvements (as
such term is defined in Exhibit B hereto). In no event may Tenant conduct
its business or operations from the Additional Premises until the AP
Commencement Date. Such limited purpose occupancy by Tenant shall be at
Tenant's sole risk and shall also be subject to all of the provisions of
this Lease other than the requirement to pay Rent (other than any Utility
Expenses incurred during the time period Tenant is constructing the Tenant
Improvements), including, but not limited to, the requirement to obtain
the insurance required pursuant to the Lease (including without
limitation, the
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provisions to Exhibit B hereto) and to deliver insurance certificates as
required herein, and to pay for all Utilities and Utility Expenses to the
extent incurred during the time period Tenant is constructing the Tenant
Improvements. In addition to the foregoing and the provisions of Exhibit B
hereto regarding such early occupancy, Landlord shall have the right to
impose such additional conditions on Tenant's early entry as Landlord
shall deem reasonably appropriate. If, at any time, Tenant is in default
of any term, condition or provision of the 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.
2.3 Delivery of the Additional Premises Tenant hereby acknowledges
that the Additional Premises are presently being occupied by Target
Therapeutics, Inc. a Delaware corporation (the "Existing Tenant").
Landlord's delivery to Tenant of possession of the Additional Premises on
the Early Occupancy Commencement Date is contingent upon the Existing
Tenant vacating the Additional Premises and surrendering possession
thereof to Landlord by February 28, 1998.
2.4 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 Additional Premises by the Early Occupancy
Commencement Date. Provided, however, Tenant's obligation to pay Rent on
the Additional Premises shall commence on the date which is one month
following the Early Occupancy Commencement Date. In the event the Early
Occupancy Commencement Date is other than the date specified in Section
2.2 above, Landlord and Tenant shall execute a written amendment to the
Lease, wherein the parties shall specify the actual Early Occupancy
Commencement Date and the AP Commencement Date and the date on which
Tenant is to commence paying Rent.
2.5 For purposes of the Lease, from and after the AP Commencement
Date, the "Premises" as defined in the Basic Lease Information and Section
2 of the Lease shall mean and refer to the aggregate of the Original
Premises and the Additional Premises consisting of a combined total of
approximately 68,441 rentable square feet located at 48664 and ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇. Accordingly, from and after the AP
Commencement Date, all references in this Amendment and in the Lease to
the term "Premises" shall mean and refer to the Original Premises and the
Additional Premises. Landlord and Tenant hereby agree that for purposes of
the Lease, from and after the AP Commencement Date, the rentable square
footage area of the Premises shall be conclusively deemed to be 68,441
rentable square feet. In addition to the foregoing, it is the parties
express intention that the balance of the Term of the Lease for the
Original Premises and the Additional Premises be coterminous with the
Expiration Date of the initial Term as specified in the Lease and that any
option or renewal term described in the Lease shall be applicable to both
the Premises and the Additional Premises.
3. Base Rent: The Basic Lease Information and Section 4 of the Lease are
hereby modified to provide that from and after the AP Commencement Date
the monthly Base Rent payable by Tenant to Landlord, in accordance with
the provisions of Section 4 of the Lease shall be as follows:
Original Premises Additional Premises Aggregate amount of
Period monthly Base Rent monthly Base Rent monthly Base Rent
------ ----------------- ----------------- -----------------
4/1/98 - 3/31/99 $28,503.15 $23,852.30 $52,355.45
4/1/99 - 5/31/99 $28,503.15 $24,590.00 $53,093.15
6/1/99 - 3/31/00 $35,519.31 $24,590.00 $60,109.31
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4/1/00 - 5/31/00 $35,519.31 $25,327.70 $60,847.01
6/1/00 - 3/31/01 $36,834.84 $25,327.70 $62,162.54
4/1/01 - 5/31/01 $36,834.84 $26,065.40 $62,900.24
6/1/01 - 3/31/02 $38,369.63 $26,065.40 $64,435.03
4/1/02 - 5/31/02 $38,369.63 $26,803.10 $65,172.73
6/1/02 - 3/31/03 $39,904.41 $26,803.10 $66,707.51
4/1/03 - 5/31/03 $39,904.41 $27,540.80 $67,445.21
6/1/03 - 3/31/04 $41,439.20 $27,540.80 $68,980.00
4/1/04 - 10/31/04 $41,439.20 $28,278.50 $69,717.70
In addition to the monthly Base Rent set forth above, Tenant shall
continue to pay $964.83 per month as the amortized amount for Excess
Tenant Improvements Costs for the Original Premises.
4. Condition of the Additional Premises: Subject to the provisions of
Section 2 above, on the Early Occupancy Commencement Date, Landlord shall
deliver to Tenant possession of the Additional Premises in its then
existing condition and state of repair, "AS IS", without any obligation of
Landlord to remodel, improve or alter the Additional Premises, or to
perform any other construction or work of improvement upon the Additional
Premises provided, however, Landlord shall deliver the Additional Premises
on the AP Commencement Date with the HVAC, mechanical, and electrical
systems (the "Systems"), and the roof in good condition and state of
repair. Tenant shall have up until the date which is sixty (60) days after
the AP Commencement Date to report any repairs required to the Systems
and/or the roof to Landlord, and Landlord shall make all such repairs as
soon as practicable. Tenant acknowledges that no representations or
warranties of any kind, express or implied, respecting the condition of
the Additional Premises, 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 Additional Premises for the conduct of
Tenant's business, including without limitation, any storage incidental
thereto, or for any other purpose. Any exception to the foregoing
provisions must be made by express written agreement signed by both
parties.
5. Tenant Improvements by Tenant: Tenant shall install and construct
Tenant Improvements (as such term is defined in Exhibit B hereto) in
accordance with the terms, conditions, criteria and provisions set forth
in Exhibit B. Landlord and Tenant hereby agree to and shall be bound by
the terms, conditions and provisions of Exhibit B.
6. Security Deposit: Concurrent with its execution of this Amendment,
Tenant shall deliver to Landlord the sum of Twenty eight thousand two
hundred seventy eight and 50/100 ($28,278.50 (the "AP Security Deposit").
The AP Security Deposit shall be added to the Security Deposit presently
being held by Landlord under the Lease in the amount of 26,000.00 (the
"Original Security Deposit"). The aggregate amount of the AP Security
Deposit and the Original Security Deposit is $54,278.50. From and after
the AP Commencement Date, the term "Security Deposit" shall mean and refer
to the aggregate of the AP Security Deposit and the Original Security
Deposit in the amount of $54,278.50. The AP Security Deposit shall be
subject to, and the use and application thereof governed by, Section 6 of
the Lease.
7. Tenant's Share of Additional Rent As of the AP Commencement Date, the
Lease shall be modified to provide that Tenant's Share of Additional Rent
(as defined in the Basic Lease Information and Section 4 of the Lease)
shall be increased to 100% of the Building.
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8. Unreserved Parking Spaces: As of the AP Commencement Date, Tenant
shall have the license to use 274 undesignated and nonexclusive parking
spaces.
9. Insurance: Tenant shall deliver to Landlord, upon execution of this
Amendment, a certificate of insurance evidencing that the Additional
Premises are included within and covered by Tenant's insurance policies
required to be carried by Tenant pursuant to the Lease.
10. Expansion: The parties hereby agree that Addendum 3 of the Lease,
entitled "Expansion" shall be deleted and of no further force or effect.
11. Right of First Refusal: The parties hereby agree that Addendum 2 of
the Lease, entitled "Right of First Refusal" shall be deleted and of no
further force or effect.
12. Right of First Negotiation:
12.1 Grant of Right of First Negotiation. Subject to the
provisions, limitations and conditions set forth in this Section
12, Tenant shall have a one time first right to negotiate ("Right
of First Negotiation") with Landlord for the leasing of the
premises located in the building adjacent to the Premises commonly
known as 48630-48634 Milmont Drive, Fremont, California (the
"Expansion Space"), as depicted on Exhibit A attached hereto.
12.2 Right of First Negotiation Notice. Subject to the conditions
set forth in Section 12.3 below, and upon the Expansion Space
becoming available for lease, Landlord will offer the Expansion
Space to Tenant in writing stating all material terms on which
Landlord proposes to lease such Expansion Space to Tenant and
Tenant shall have five (5) business days after delivery of such
notice to notify Landlord in writing ("Election Notice") of
Tenant's acceptance of Landlord's offer to lease the entirety of
the Expansion Space upon the terms specified in Landlord's notice.
If Tenant fails to notify Landlord if its election to lease the
Expansion Space within the time specified herein, or if Tenant
attempts to modify any of the material terms specified in
Landlord's notice, it shall be deemed that (i) Tenant has elected
not to lease the Expansion Space; (ii) Landlord may thereafter
enter into a lease agreement with a third party; and (iii) all
rights under this Right of First Negotiation shall automatically
terminate and be and be of no further force or effect. Upon receipt
of the Election Notice from Tenant, 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 this
Lease. Time is of the essence with respect to each and every time
period described herein. Tenant shall have no other first rights of
negotiation or expansion rights under the Lease unless Landlord and
Tenant otherwise agree in writing.
12.3 Limitations On, and Conditions To, Right of First Negotiation.
This Right of First Negotiation is personal to Tenant and may not
be assigned, voluntarily or involuntarily, separate from or as part
of the Lease, and shall be subject to the rights of the existing
tenant(s) currently occupying the Expansion Space pursuant to their
existing lease(s), as such lease(s) may be modified, amended or
extended. At Landlord's option, all rights of Tenant under this
Right of First Negotiation 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
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default at any time during the initial term of the Lease beyond any
applicable notice and cure periods, or is currently in default of
any provision of the Lease; 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
Right of First Negotiation is delivered to Tenant; and/or (4)
Tenant has failed to properly exercise this Right of First
Negotiation in a timely manner in strict accordance with the
provisions of this Section 12; and/or (5) the initial term of the
Lease has expired; and/or (6) 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 of the Lease.
13. Brokers: Tenant warrants that it has had no dealings with any real
estate broker or agent in connection with the negotiation of this
Amendment, other than ▇▇▇▇▇▇ ▇▇▇▇. 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 attorneys' fees and costs.
14. 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.
15. Definitions: Unless otherwise defined in this Amendment, all terms
not defined in this Amendment shall have the meanings assigned to such
terms in the Lease.
16. 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
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.
17. Incorporation: The terms and provisions of the Lease are hereby
incorporated in this Amendment.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date and year first above written.
TENANT:
Premisys Communications, Inc.,
a Delaware corporation
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
Its: Senior Vice President, Chief Financial Officer
-----------------------------------------------
Date: January 15, 1998
------------------
LANDLORD:
AEtna Life Insurance Company,
a Connecticut corporation
By: Allegis Realty Investors LLC,
Its investment advisor
By: /S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President
Date: January 27, 1998
-------------------
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Third Amendment to Lease Agreement
Exhibit B
Tenant Improvements
This exhibit, entitled "Tenant Improvements", is and shall constitute
Exhibit B to that certain Third Amendment to Lease Agreement, dated as of
December 11, 1997 (the "Amendment"), by and between AEtna Life Insurance
Company, a Connecticut corporation ("Landlord") and Premisys
Communications, Inc., a Delaware corporation ("Tenant"). The terms and
conditions 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 meanings ascribed to such terms in the
Amendment.
1. Tenant To Construct Tenant Improvements. Subject to the provisions
below, Tenant shall be solely responsible for the design, planning,
construction and completion of the interior tenant improvements ("Tenant
Improvements") to the Additional Premises in accordance with the terms
and conditions of this Exhibit B.
2. Definition. "Tenant Improvements" as used in the Amendment and this
Exhibit B shall include only those improvements within the interior
portions of the Additional Premises which are depicted on the Final Plans
and Specifications (hereafter defined in Paragraph 3 (b)) or described
here in below. "Tenant Improvements" shall expressly not include Tenant's
personal property, trade fixtures, furnishings, equipment or similar
items.
The Tenant Improvements may include:
a. Partitioning, doors, floor coverings, finishes, ceilings, wall
coverings and painting, millwork and similar items.
b. Electrical wiring, lighting fixtures, outlets and switches,
and other electrical work.
c. Duct work, terminal boxes, defusers and accessories required
for the completion of the heating, ventilation and air conditioning
systems serving the Additional Premises, including the cost of meter and
key control for after-hour air conditioning.
d. All fire and life safety control systems such as fire walls,
sprinklers, halon, fire alarms, including piping, wiring and accessories
installed within the Building and serving the Additional Premises.
e. All plumbing, fixtures, pipes, and accessories to be installed
within the Building and serving the Additional Premises.
3. Tenant Improvements Plans.
a. Preliminary Plans and Specifications. Tenant shall retain an
architect ("Architect") and/or engineer ("Engineer") to prepare
preliminary working architectural and engineering plans and
specifications ("Preliminary Plans and Specifications") for the Tenant
Improvements. 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 approve or disapprove the Preliminary
Plans and Specifications within five (5) business days after Landlord
receives the Preliminary Plans and Specifications, and if disapproved,
Landlord shall return the Preliminary
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Plans and Specifications to Tenant, who shall make all necessary
revisions. This procedure shall be repeated until Landlord approves the
Preliminary Plans and Specifications. Landlord shall not unreasonably
withhold its approval of the Preliminary Plans and Specifications. The
approved Preliminary Plans and Specifications, as modified, shall be
deemed the "Final Preliminary Plans and Specifications".
b. Final Preliminary Plans and Specifications. After the
Preliminary Plans and Specifications are approved by Landlord and are
deemed to be the Final Preliminary Plans and Specifications, Tenant shall
cause the Architect and/or the Engineer to prepare the final working
architectural and engineering plans and specifications ("Final Plans and
Specifications") for the Tenant Improvements. Upon preparation of the
Final Plans and Specifications Tenant shall deliver the Final Plans and
Specifications to Landlord. Landlord shall approve or disapprove the
Final Plans and Specifications within five (5) business 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. This procedure shall be repeated
until Landlord approves the Final Plans and Specifications. Landlord
shall not unreasonably withhold its approval of 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 Additional 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 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 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, or shall match the
existing materials installed within the Additional Premises.
4. Permits. Tenant at its sole cost and expense shall obtain all
governmental approvals of the Construction Documents to the full extent
necessary for the issuance of a building permit for the 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 Tenant
Improvements in accordance with the approved Construction Documents.
Landlord shall cooperate with Tenant at no cost or expense to Landlord in
the obtaining of such approvals and permits. Tenant at its sole cost and
expense shall undertake all steps necessary to ensure that the
construction of the Tenant Improvements is accomplished in strict
compliance with all statutes, laws, ordinances, rules, and regulations
applicable to the construction of the Tenant Improvements and the
requirements and standards of any insurance underwriting board,
inspection bureau or insurance carrier insuring the Additional Premises
and/or the Building.
5. Construction.
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a. Tenant shall be solely responsible for the construction,
installation and completion of the Tenant Improvements in accordance with
the Construction Documents approved by Landlord and 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 Tenant Improvement Allowance in accordance with the
provisions of Section 6 below. Once undertaken, Tenant shall diligently
proceed with the construction, installation and completion of the Tenant
Improvements in accordance with the Construction Documents. No material
changes shall be made to the Construction Documents 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 Section 6 below) shall employ a reputable licensed and bonded general
contractor ("Contractor") to construct the Tenant Improvements in
accordance with the Construction Documents. The Contractor selected by
Tenant shall be subject to the written approval of Landlord, which
approval shall not be unreasonably withheld or delayed. The construction
contract between Tenant and the Contractor shall be subject to Landlord's
prior written approval. Proof that the Contractor is licensed in
California, is bonded as required under California law, and has insurance
coverage typically carried by a reputable general contractor in the State
of California shall be provided to Landlord at the time that Tenant
requests approval of the Contractor from Landlord. Tenant shall ensure
that all subcontractors hired by the Contractor are licensed in
California and have insurance typically carried by reputable
subcontractors in the State of California.
c. Prior to the commencement of the construction and installation
of the Tenant Improvements, Tenant shall provide the following to the
Landlord, all of which shall be to the Landlord's reasonable
satisfaction:
i. An estimated completion schedule for the Tenant
Improvements.
ii. Copies of all required approvals and permits from
governmental agencies having jurisdiction or authority over the
construction and installation of the Tenant Improvements.
iii Evidence of Tenant's procurement of insurance required to
be obtained pursuant to the provisions of the Amendment and this Exhibit
B
d. Landlord shall at all times have the right to inspect the
Tenant Improvements and Tenant shall immediately cease work upon written notice
from the Landlord if the Tenant Improvements are not substantially in compliance
with the Construction Documents approved by the Landlord. If Landlord gives
notice of faulty construction or any other deviation from the Construction
Documents, Tenant shall cause Contractor to make corrections promptly. However,
neither the privilege herein granted to Landlord to make such inspection, 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 Section
6 below, Tenant shall pay and discharge promptly and fully, by payment or
appropriate bond satisfactory to Landlord in form and substance, all claims for
labor done and materials and services furnished in connection with the Tenant
Improvements. Tenant Improvements shall not be commenced until five (5) days
after Landlord has received notice from Tenant stating the date the construction
of the Tenant Improvements is to commence so that Landlord can post and record
any appropriate Notice of Non-responsibility.
f. Tenant shall maintain during the construction of the Tenant
Improvements, at its sole cost and expense, builders' risk insurance for the
amount of the completed value of the Tenant Improvements on an all-risk
non-reporting form covering all improvements under construction, including
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building materials, and other insurance in amounts and against such risks as the
Landlord shall reasonably require in connection with the Tenant Improvements.
g. No materials, equipment of fixtures shall be delivered to or
installed upon the Additional Premises pursuant to any agreement by which
another party has a security interest or right to remove or repossess such
items, without the prior written consent of Landlord.
h. Upon completion of the Tenant Improvements, Tenant shall
deliver to Landlord the following, all of which shall be to the Landlord's
reasonable satisfaction:
i. Any certificates required for occupancy, including a
permanent and complete Certificate of Occupancy issued by the City of Fremont or
a final signed-off building permit or its equivalent.
ii. A Certificate of Completion signed by the Architect
who prepared the Construction Documents approved by the Landlord.
iii. A cost breakdown itemizing all expenses for the
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 Tenant Improvements.
v. A true and complete copy of all as-built plans and
drawings for the Tenant Improvements.
6. Tenant Improvement Allowance.
a. Subject to Tenant's compliance with the provisions of this Exhibit
B, Landlord shall provide an allowance in the amount of thirty six
thousand eight hundred eighty five and 00/100 dollars ($36,885.00)
($1.50 per square foot of the Additional Premises), (the "Tenant
Improvement Allowance"). The Tenant Improvement Allowance shall be
the maximum contribution by Landlord for the Tenant Improvements
and shall be used to design, construct and install the Tenant
Improvements and for no other purpose. Except as otherwise
expressly provided herein, Landlord shall have no obligation to
disburse the Tenant Improvement Allowance or any portion thereof
unless and until the Tenant Improvements have been completed in a
lien-free and good and workmanlike manner and in accordance with
all statues, laws, ordinances, rules and regulations applicable
thereto, Tenant has made the deliveries required under Paragraph
5(h.) above, and the Lien Period (as hereinafter defined) has
expired and Landlord has been reasonably able to confirm that no
mechanics' or materialsmens' liens have been filed against the
Property during such Lien Period. As used herein, "Lien Period"
means the period during which the Contractor and any
subcontractors, labor suppliers and materialmen providing services
or materials for the Tenant Improvements may file a lien against
the Property of otherwise enforce lien rights.
b. Notwithstanding the foregoing to the contrary, Landlord shall not
be obligated to disburse any portion of the Tenant Improvement Allowance while
Tenant is in Default of this Lease.
c. Should the total cost of the Tenant Improvements be less than the
Tenant Improvement Allowance, the Tenant Improvement Allowance shall be
automatically reduced to the amount equal to said actual cost.
7. Excess Tenant Improvement Costs. The term "Excess Tenant Improvement
Costs" as used herein shall mean and refer to the sum equal to the aggregate of
the amount by which the actual Tenant
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Improvement costs exceed the Tenant Improvement Allowance. Tenant shall pay for
any and all Excess Tenant Improvement Costs; provided, however, that Tenant may
elect to have an amount of up to $36,885.00 of such Excess Tenant Improvements
Costs amortized over eighty (80) months of the Lease term at the interest rate
of twelve percent (12%) per annum, and the monthly Base Rent otherwise payable
by Tenant during the remainder of the Term of the Lease shall be increased by
the monthly amount resulting from such amortization.
8. Condition Precedent. Landlord shall have no obligation to approve or
review any plans or take any other actions required by Landlord pursuant to this
Exhibit B if at the time Tenant requests such approval, review or action or at
any time thereafter Tenant is in Default of this Lease.
9. Landlord's Consents. If Landlord does not respond to any request for
consent under this Exhibit A within the period set forth for such consent
herein, then such consent shall be deemed given.
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Exhibit B-2
Building Standards
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 AX 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 AX 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.
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B. 2' X 4' X 5/8" white, no-directional acoustical tile to be regular second
look as manufactured by ▇▇▇▇▇▇▇▇▇ or equal.
PAINTING:
A. Sheetrock walls within office to receive two (2) coats of interior latex
paint as manufactured by ▇▇▇▇▇ ▇▇▇▇▇ 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 L.P.C. (brushed aluminum or white).
B. Blinds to be sized to fit window module.
VCT:
A. VCT to be 1/8" x 12" x 12" as manufactured by ▇▇▇▇▇▇▇▇▇ -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 parabolic lens as manufactured by Lithonia or equal.
(Approximately 50 F.C.)
LIGHT SWITCHES
A. Switching as required by Title 24.
B. Switch 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.
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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 ▇▇▇▇▇ or equal, standard colors only.
B. 4" rubber base at VCT areas.
TOILET AREAS:
Wet walls to receive Duraboard or Wonder Board and ceramic tile up to 48".
Floors to receive ceramic tile with 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 ▇▇▇▇▇▇▇▇ Design Series
III 30 oz, Structure II 28 oz.
WOOD DOORS:
Shall be 3'0" x 9'0" x 1 3/4" (unless otherwise specified) solid core,
prefinished harmony (rotary ▇. ▇▇▇▇▇).
DOOR FRAMES:
Shall be ACI or equal, 3 3/4@ or 4 7/8@ throat, brushed, standard aluminum,
snap-on trim.
HARDWARE:
1 1/2 pr. butts F179 ▇▇▇▇▇▇▇, Latchset D10S ▇▇▇▇▇▇ Schlage, Lockset D53PD ▇▇▇▇▇▇
Schlage, Dome Type floor stop ▇▇▇▇▇ ▇▇▇▇▇▇▇ FB13, Closer 4110LCN (where
required) brushed chrome.
INSULATION:
By Title 24 insulation.
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PLUMBING:
A. Shall comply with all local codes and handicapped code requirements. Fixtures
shall be either American Standard, Kohler or ▇▇▇▇▇▇. 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 to
be white or ▇▇▇▇.
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 LPC 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 5-7 foot candles.
Note: All high pile storage requirements are excluded for standard building T.I.
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