STANDARD SUBLEASE
American Industrial Real Estate Association
[LOGO]
1. Parties. This Sublease, dated, for reference purposes only, August 10, 1998,
is made by and between Verticom, Inc. ("Sublessor") and Arterial Vascular
Engineering, Inc. ("Sublessee").
2. Premises. Sublessor hereby subleases to Sublessee and Sublessee hereby
subleases from Sublessor for the term, at the rental, and upon all of the
conditions set forth herein, that certain real property, including all
improvements therein, and commonly known by the street address of 0000 Xxxxxxxxx
Xxxxxx Xxxxxxx, Xxxxx Xxxx located in the County of Sonoma, State of California
and generally described as (describe briefly the nature of the property)
approximately 35,490 s.f. of a 47,938 s.f. building including both hazardous
material shed and tank farm known as building B in the complex A.P. #000-000-000
as shown on Exhibit A. Sublessor shall be allowed use and access to tank farm to
store nitrogen generator, bulk CO(2) storage tank, air compressor shared by
Sublessee and used and unused bottle gas and fluid storage bins.
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("Premises").
3. Term.
3.1 Term. The term of this Sublease shall be for forty-eight (48) months
commencing on November 1, 1998 and ending on October 31, 2002 unless sooner
terminated pursuant to any provision hereof.
3.21 [Paragraph omitted]
4. Rent.
4.1 Base Rent. Sublessee shall pay to Sublessor as base rent for the Premises
equal monthly payments of $28,392.00 in advance, on the first day of each month
of the term hereof. Sublessee shall pay Sublessor upon the execution hereof
$28,392.00 (Twenty Eight Thousand Three Hundred Ninety Two) as base rent for
November. See Xxxxxxxx Xx. 0, Xxxxxxxxx 7.
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Base Rent for any period during the term hereof which is for less than one month
shall be a prorata portion of the monthly installment.
4.2 Rent Defined. All monetary obligations of Sublessee to Sublessor under
the terms of this Sublease (except for the Security Deposit) are deemed to be
rent ("Rent"). Rent shall be payable in lawful money of the United States to
Sublessor at the address stated herein or to such other persons or at such other
places as Sublessor may designate in writing.
5. Security Deposit. Sublessee has deposited with Sublessor $12,500 as security
for Sublessee's faithful performance of Sublessee's obligations hereunder. The
rights and obligations of Sublessor and Sublessee as to said Security Deposit
shall be as set forth in Paragraph 5 of the Master Lease (as modified by
Paragraph 7.3 of this Sublease).
6. Use.
6.1 Agreed Use. The Premises shall be used and occupied only for research
and development, manufacturing, general office and for no other purpose.
6.2 Compliance. Sublessor warrants that the improvements on the Premises
comply with all applicable covenants or restrictions of record and applicable
building codes, regulations and ordinances ("Applicable Requirements") in effect
on the commencement date. Said warranty does not apply to the use to which
Sublessee will put the Premises or to any alterations or utility installations
made or to be made by Sublessee. NOTE: Sublessee is responsible for determining
whether or not the zoning is appropriate for its intended use, and acknowledges
that past uses of the Premises may no longer be allowed. If the Premises do not
comply with said warranty, or in the event that the Applicable Requirements are
hereafter changed, the rights and obligations of Sublessor and Sublessee shall
be as provided in Paragraph 6.2 of the Master Lease (See Addendum #1 Paragraph
7.).
6.3 Acceptance of Premises and Lessee. Sublessee acknowledges that:
(a) it has been advised by Brokers to satisfy itself with respect to
the condition of the Premises (including but not limited to the electrical, HVAC
and fire sprinkler systems, security, environmental aspects, and compliance with
Applicable Requirements), and their suitability for Sublessee's intended use,
(b) Sublessee has made such investigation as it deems necessary with
reference to such matters and assumes all responsibility therefor as the same
relate to its occupancy of the Premises, and
(c) neither Sublessor, Sublessor's agents, nor any Broker has made any
oral or written representations or warranties with respect to said matters other
than as set forth in this Sublease.
7. Master Lease
7.1 Sublessor is the lessee of the Premises by virtue of a lease,
hereinafter the "Master Lease", a copy of which is attached hereto marked
Exhibit 1, wherein Santa Xxxx Corporate Center Associates is the lessor,
hereinafter the "Master Lessor".
7.2 This Sublease is and shall be at all times subject and subordinate to
the Master Lease.
7.3 The terms, conditions and respective obligations of Sublessor and
Sublessee to each other under this Sublease shall be the terms and conditions of
the Master Lease except for those provisions of the Master Lease which are
directly contradicted by this Sublease in which event the terms of this Sublease
document shall control over the Master Lease. Therefore, for the purposes of
this Sublease, wherever in the Master Lease the word is used it shall be deemed
to mean the Sublessor herein all references to "this Lease" shall mean this
Sublease, and all references to the "Premises" shall mean the subleased
Premises, and wherever in the Master Lease the word "Tenant" is used it shall be
deemed to mean the Sublessee herein.
7.4 During the term of this Sublease and for all periods subsequent for
obligations which have arisen prior to the termination of this Sublease,
Sublessee does hereby expressly assume and agree to perform and comply with, for
the benefit of Sublessor and Master Lessor, each, and every obligation of
Sublessor under the Master Lease except for the following paragraphs which are
excluded therefrom: Paragraph 3.1 (Paragraph 4.1 rentable payment amount only is
deleted.*
7.5 The obligations that Sublessee has assumed under paragraph 7.4 hereof
are hereinafter referred to as the "Sublessee's Assumed Obligations". The
obligations that Sublessee has not assumed under paragraph 7.4 hereof are
hereinafter referred to as the "Sublessor's Remaining Obligations".
7.6 Sublessee shall hold Sublessor free and harmless from all liability,
judgments, costs, damages, claims or demands, including reasonable attorneys
fees, arising out of Sublessee's failure to comply with or perform Sublessee's
Assumed Obligations.
7.7 Sublessor agrees to maintain the Master Lease during the entire term of
this Sublease, subject, however, to any earlier termination of the Master Lease
without the fault of the Sublessor, and to comply with or perform Sublessor's
Remaining Obligations and to hold Sublessee free and harmless of and from all
liability, judgments, costs, damages, claims or demands arising out of
Sublessor's failure to comply with or perform Sublessor's Remaining Obligations.
7.8 Sublessor represents to Sublessee that the Master Lease is in full
force and effect and that no default exists on the part of any party to the
Master Lease. See Addendum #1 Paragraph 20.
8. Assignment of Sublease and Default.
8.1 Sublessor hereby assigns and transfers to Master Lessor the Sublessor's
interest in this Sublease, subject however to the provisions of Paragraph 8.2
hereof. Sublessor hereby authorizes and directs Sublessee to pay to Master
Lessor the Rent due and to become due under the Sublease.
8.2 [Paragraph Omitted}
8.3 [Paragraph Omitted]
8.4 No changes or modifications shall be made to this Sublease without the
consent of Master Lessor.
9. Consent of Master Lessor.
9.1 In the event that the Master Lease requires that Sublessor obtain the
consent of Master Lessor to any subletting by Sublessor then, this Sublease
shall not be effective unless, within ten days of the date hereof, Master Lessor
signs this Sublease thereby giving its consent to this Subletting.
9.2 [Paragraph omitted]
9.3 In the event that Master Lessor does give such consent then:
(a) Such consent will not release Sublessor of its obligations or alter
the primary liability of Sublessor to pay the Rent and perform and comply with
all of the obligations of Sublessor to be performed under the Master Lease.
(b) The acceptance of Rent by Master Lessor from Sublessee or anyone
else liable under the Master Lease shall not be deemed a waiver by Master Lessor
of any provisions of the Master Lease.
(c) The consent to this Sublease shall not constitute a consent to any
subsequent subletting or assignment.
(d) In the event of any Default of Sublessor under the Master Lease,
Master Lessor may proceed directly against Sublessor, any guarantors or anyone
else liable under the Master Lease or this Sublease without first exhausting
Master Lessor's remedies against any other person or entity liable thereon to
Master Lessor.
(e) Master Lessor may consent to subsequent sublettings and assignments
of the Master Lease or this Sublease or any amendments or modifications thereto
without notifying Sublessor or any one else liable under the Master Lease and
without obtaining their consent and such action shall not relieve such persons
from liability.
(f) In the event that Sublessor shall default in its obligations under
the Master Lease, then Sublessee shall attorn to Master Lessor in which event
Master Lessor shall undertake the obligations of Sublessor under this Sublease
from the time of the exercise of said option to termination of this Sublease but
Master Lessor shall not be liable for any prepaid Rent nor any Security Deposit
paid by Sublessee, nor shall Master Lessor be liable for any other Defaults of
the Sublessor under the Sublease. See Exhibit G.
9.4 The signatures of the Master Lessor and any Guarantors of Sublessor at
the end of this document shall constitute their consent to the terms of this
Sublease.
9.5 Master Lessor acknowledges that, to the best of Master Lessor's
knowledge, no default presently exists under the Master Lease of obligations to
be performed by Sublessor and that the Master Lease is in full force and effect.
9.6 In the event that Sublessor defaults under its obligations to be
performed under the Master Lease by Sublessor, Master Lessor agrees to deliver
to Sublessee a copy of any such notice of default. Sublessee shall have the
right to cure any default of Sublessor described in any notice of default within
ten days after service of such notice of default on Sublessee. If such default
is cured by Sublessee then Sublessee shall have the right of reimbursement and
offset from and against Sublessor.
10. Brokers Fee.
10.1 Upon execution hereof by all parties, Sublessor shall pay to Xxxxxx &
Xxxxxx Company Inc., a licensed real estate broker, ("Broker"), a fee as set
forth in a separate agreement between Sublessor and Broker, or in the event
there is no separate agreement the sum of $_____ per listing agreement for
brokerage services rendered by Broker to Sublessor in this transaction.
10.2 [Paragraph omitted]
10.3 [Paragraph omitted]
10.4 Any fee due from Sublessor hereunder shall be due and payable upon the
execution of any new lease.
10.5 Any transferee of Sublessor's interest in this Sublease, by accepting
an assignment thereof, shall be deemed to have assumed the respective
obligations of Sublessor under this Paragraph 10. Broker shall be deemed to be a
third-party beneficiary of this paragraph 10.
11. Attorney's fees. If any party or the Broker named herein brings an action to
enforce the terms hereof or to declare rights hereunder, the prevailing party in
any such action, on trial and appeal, shall be entitled to his reasonable
attorney's fees to be paid by the losing party as fixed by the Court.
l2. Additional Provisions. [If there are no additional provisions, draw a line
from this point to the next printed word after the space left here. If there are
additional provisions place the same here.]
Addendum #1
Exhibit A - Site Plan
Exhibit B - Floor Plan
Exhibit C - Standard Lease Disclosure
Exhibit D - Agency Disclosure
Exhibit E - Arbitration of Disputes
Exhibit F - Right of First Refusal
Exhibit G - Non-Disturbance and Attornment Agreement
Exhibit H - Option to Extend
Exhibit I -
ATTENTION: NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE AMERICAN
INDUSTRIAL REAL ESTATE ASSOCIATION OR BY ANY REAL ESTATE BROKER AS TO THE LEGAL
SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS SUBLEASE OR THE
TRANSACTION TO WHICH IT RELATES. THE PARTIES ARE URGED TO:
1. SEEK ADVICE OF COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS SUBLEASE.
2. RETAIN APPROPRIATE CONSULTANTS TO REVIEW AND INVESTIGATE THE CONDITION OF THE
PREMISES. SAID INVESTIGATION SHOULD INCLUDE BUT NOT BE LIMITED TO: THE POSSIBLE
PRESENCE OF HAZARDOUS SUBSTANCES, THE ZONING OF THE PROPERTY, THE STRUCTURAL
INTEGRITY, THE CONDITION OF THE ROOF AND OPERATING SYSTEMS, AND THE SUITABILITY
OF THE PREMISES FOR SUBLESSEE'S INTENDED USE.
WARNING: IF THE SUBJECT PROPERTY IS LOCATED IN A STATE OTHER THAN CALIFORNIA,
CERTAIN PROVISIONS OF THE SUBLEASE MAY NEED TO BE REVISED TO COMPLY WITH THE
LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED.
Executed at
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on August 20, 1998 By /s/ Xxxx Xxxx, V.P. Finance
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address By Verticom, Inc.
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-------------------------------------- "Sublessor" (Corporate Seal)
Executed at
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on August 21, 1998 By /s/ Xxxxx Xxxx
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address By AVE
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-------------------------------------- "Sublessee" (Corporate Seal)
Executed at
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on August 24, 1998
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address By /s/ Xxxx Xxxxxxx
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-------------------------------------- "Master Lessor" (Corporate Seal)
NOTE: These forms are often modified to meet changing requirements of law and
needs of the industry. Always write or call to make sure you are
utilizing the most current form: AMERICAN INDUSTRIAL REAL ESTATE
ASSOCIATION, 000 Xx. Xxxxxx Xx., Xxxxx 000, Xxx Xxxxxxx, XX 00000. (213)
687-8777.
ADDENDUM #1
To Lease dated August 10, 1998 by and between
Sublessor Verticom, Inc., and Sublessee Arterial Vascular Engineering, Inc.,
herein called AVE
1. Tenant Improvement Scope:
The plans and specifications for the tenant improvements to be constructed
in the Premises shall be subject to the prior approval of Master Lessor and
Sublessor, which approval shall not be unreasonably withheld. Master Lessor
and Sublessor to respond to Sublessee's request for approval of such plans
and specifications within ten (10) days after the date they are submitted
to them. Master Lessee and Sublessor approve items A & B below.
Sublessee shall complete the following tenant improvements at its sole
cost, with building permits.
A. Construct a full height demising wall as required to separate the
sublessee's premises from sublessor's. Said demising wall shall be
finished from floor to t-bar ceiling with sheetrock, texture and
painted on both sides with electrical service as shown on Exhibit B.
Sublessor shall reimburse Sublessee for 31'6" of full height demising
for storage area.
B. HVAC duct work modifications providing individual thermostatic zones
for Sublessee and Sublessor.
C. Any tenant improvements within the area to be occupied by Sublessee to
be installed by Sublessee. See Exhibit B Floor Plan.
Sublessee to use its best efforts to install Tenant Improvements in a
quality good workmanlike manner in accordance with approved plans and
specification within sixty (60) days of acceptance hereof, and in
accordance with all applicable laws, codes, regulations, statutes, and
ordinances (including, without limitation, the Americans with Disabilities
Act of 1990), free of defects and using new materials and equipment of good
quality. Except in the case of force majeure, Sublessee's failure to
complete the Tenant Improvements on or before November 1, 1998, shall not
delay the Commencement Date.
Sublessor shall inspect said premises within three (3) business days of
completion to ascertain that Tenant Improvements have been installed in
accordance with approved plans and specifications. Sublessor shall provide
a "punch list" of items not in accordance with plans and specifications or
not installed in a good workmanlike manner or not approved by the City.
Sublessee shall have thirty (30) days to correct said punch list items.
Sublessee shall remove all mechanic's liens, and will satisfy all claims
and meet all contract requirements with suppliers, contractors and
employees arising out of said installation of improvements. Sublessee to
have workers compensation and liability insurance with a minimum $1,000,000
per occurrence for said installation and to name Sublessor as an additional
insured on the liability policy. Sublessee shall indemnify and hold
harmless Sublessor for any claims, losses, damages, actions and causes of
action which may be incurred as a result of the work performed or materials
furnished in connection with the construction of the Tenant Improvements.
Sublessor shall complete at their sole cost the tenant improvements with
their own space, including double doors within storage area as shown on
Exhibit B.
2. Financial Information
Sublessor and Master Lessor has reviewed and approved financial statements
regarding Sublessee.
3. Permits
Sublessee will obtain a use permit and a wastewater discharge permit from
the appropriate municipality within thirty (30) days of acceptance hereof.
Sublessee shall use due diligence in pursuing such permits and pay all
costs associated with them. Sublessee shall have the responsibility to
maintain any use permits and to comply with all terms and conditions of
said use permits during the term of this Lease. If Sublessee's application
for a use permit is denied, Sublessor or Sublessee may declare this lease
void, in which event all deposits and prepaid rent shall be returned to
Sublessee. Throughout the sublease Term, Sublessee shall be responsible to
obtain and maintain any other permits, licenses or authorizations which may
be required by applicable laws, codes, regulations, statutes and ordinances
in order to operate Sublessee's business in the Premises.
4. Hazardous Waste
Sublessee has provided Sublessor with its MSDS information. All Sublessee's
chemicals shall be stored on site. Sublessor has reviewed and approved the
use of these materials in the premises. The use of such materials and any
other hazardous materials or substances shall be subject to the prior
written consent of Master Lessor.
Sublessor makes no representation or warranty regarding the physical
condition of the Premises, which Sublessee agrees it is subleasing in its
existing condition, "as is" except for the TRANE HVACC unit see Paragraph
18.
Sublessee shall indemnify, defend with counsel reasonably acceptable to
Sublessor and hold Sublessor harmless from and against any claim,
remediation obligation, investigation obligation, liability, cause of
action, penalty, attorneys' fees, consultant's costs, expense of damage
owing or alleged to be owing with respect to any hazardous materials or
substances present on or about the Premises or the soil, groundwater or
surface water thereof which are caused by Sublessee, its employees, agents,
contractors or invitees. Sublessee's representations, warranties and
indemnification under this Sublease shall survive the expiration or earlier
termination of this Sublease.
Sublessor shall indemnify, defend with counsel reasonably acceptable to
Sublessee and hold Sublessee harmless from and against any claim,
remediation obligation, investigation obligation, liability, cause of
action, penalty, attorneys' fees, counsultant's costs, expense of damage
owing or alleged to be owing with respect to any hazardous materials or
substances present on or about the Premises or the soil, groundwater or
surface water thereof which are caused by Sublessor, its employees, agents,
contractors or invitees. Sublessor's representations, warranties and
indemnification under this Sublease shall survive the expiration or earlier
termination of this Sublease.
Sublessor has provided Sublessee with its MSDS information. All Sublessor's
chemicals shall be stored within their space.
Sublessee shall have the exclusive use of both Hazardous Material Sheds as
identified in Exhibit A.
Sublessee and Sublessor are aware there is existing ground water
contamination in the vicinity.
5. Area Measurement:
Sublessee and Sublessor has reviewed and approved the systemn of
measurement, the useable and rentable square footage of the subject
premises.
6. Associations and Expenses:
Sublessee has reviewed and approved CC&R's, any common area association and
budget, rules, expenses, and use conditions pertaining thereto.
7. Rent:
Sublessee shall pay the monthly base rent for the Premises in advance upon
the Commencement Date and thereafter on the first day of each month of the
term hereof directly to Master Lessor. Base rent for any period which is
less than one month shall be a pro-rata portion of the monthly installment.
The monthly base rental amount shall be as follows:
Months 11/1/98 to 12/14/98 35,490 sf x $ .80 = $28,392
Months 12/15/98 to 12/14/2001 CPI adjustment per paragraph 4.3
of Master Lease
Months 12/15/2001 to 10/31/2002 CPI adjustment per paragraph 4.3
of Master Lease
Also, Sublessee shall pay for its prorata share of common area charges as
additional rent. Said payment shall be paid directly to Master Lessor.
Additional rent was $70,396.74 for the calendar year 1997, which is
estimated to be approximately 12 cents per square foot, payable on a
monthly basis. Aforementioned rental payments and additional rent payments
are subject to the terms stipulated in sections 4.1, 4.2, 4.3 and 4.4 of
the Master Lease.
8. Parking:
Sublessee shall be entitled to the use of one hundred forty four (144)
parking spaces on an unreserved basis free of charge in common.
9. Signage:
Sublessee and Sublessor agree Sublessee shall be entitled to install its
lettering on the monument sign and main entrance door subject to any sign
program regulations in the business park CC&R's and the City of Santa Xxxx.
10. Janitorial Services:
Sublessor and Sublessee shall contract directly for their own janitorial
service.
11. Utilities:
Sublessee shall contract for and pay directly the utility xxxx for gas and
electric service and sewer and water. Sublessor shall pay Sublessee for its
pro-rata share which shall be defined as 25% of the total amount. Sublessee
shall provide Sublessor with a copy of any prorated expenses when
submitting any invoice to Sublessor. If for any reason Sublessor's space is
not occupied that the contribution for electric and gas will be reduced to
5% of total amount.
12. Early Access:
Upon full execution of the Sublease Agreement, Sublessee shall have access
to portions of the sublet premises upon the schedule outlined on Exhibit I
for the purpose of designing, demolishing and constructing improvements as
well as for relocating existing operations. Accordingly, Sublessor shall
vacate said portions of the sublet premises on the same schedule.
In the event Sublessor fails to vacate portions of the sublet premises
within two weeks of the scheduled dates established in Exhibit I, Sublessor
shall pay Sublessee a penalty of $500.00 per day for each occurrence.
Nothwithstanding the above and in the event Sublessor fails to vacate the
entire sublet premises by October 31, 1998, then Sublessee's obligation to
pay rent shall remain at the current rental rate ($12,500/month) on a daily
basis until Sublessor vacates the sublet premises.
Sublessee shall endeavor to minimize the impact of the construction work on
Sublessor and shall install dust barriers around areas of demolition and
construction. Sublessee reserves the right to construct temporary demising
walls as indicated on Exhibit I.
13. Telephone Room:
Sublessee with reasonable notice shall allow Sublessor access and continued
use of the telephone equipment room for Sublessor's existing equipment and
alarm system.
14. Option to Expand:
With six (6) months prior written notice to Sublessor, Sublessee shall have
an option to expand its premises after the 36th month, for the balance of
the space presently occupied by Sublessor in the building at the same terms
and conditions of the Master Lease. Sublessee shall only have the option to
expand so long as Sublessee is not in default (beyond applicable cure
periods) either at the time of the exercise or at any time thereafter until
the commencement date with respect to the expansion space.
Included as part of exercising its right to expand, Sublessee would assume
the remaining term and conditions of the Master Lease. In addition,
Sublessee will pay Sublessor the cost of unamortized tenant improvements
that Sublessor has installed in the building at the start of this Sublease
dated August 10, 1998. However in no event shall the tenant improvement
cost exceed $150,000. Said costs shall be prorated over eighty six (86)
months at one eighty-sixth per month. For example, $150,000 for 86 months
is $1,744.19 each month. Sublessor will provide Sublessee with
documentation to support its representation of the costs expended for its
improvement work. The amount owing to Sublessor under this paragraph shall
be delivered to Sublessor in one lump sum by no later than 30 days prior to
the effective date of the expansion.
15. Assignment and Subletting:
Sublessee shall be allowed to sublease or assign this sublease without
Sublessor and/or Master Lessor's approval to any corporation which
controls, or is controlled by or is under common control with Sublessee, or
to any corporation resulting from the merger of or consolidation with
Sublessee. In this event Master Lessor will not have the option to
terminate the Master Lease under its paragraph 13.(d). In the event of a
sublease or assignment to a third party, Sublessee shall obtain Sublessor
and Master Lessor approval which shall not be unreasonably withheld. Master
Lessor agrees to the above provided that the substituted Sublessee has
equal or more net worth. By signing this Sublease, Master Lessor
specifically agrees as follows: In the event
worth. By signing this Sublease, Master Lessor specifically agrees as
follows: In the event Sublessee requests the consent of the Master Lessor
to a further subletting or assignment of the Premises, and if Master Lessor
elects to terminate the Master Lease, such termination shall only apply to
Sublessee's Premises. In such event the Master Lease would be terminated as
to Sublessee's Premises but not as to Sublessor's remaining Premises.
16. Existing Lease Agreement:
Upon commencement of this Sublease dated August 10, 1998, the existing
Sublease between Verticom, Inc., and Arterial Vascular Engineering, Inc.,
dated June 20, 1997 shall be mutually rescinded and become null and void,
provided that any indemnities set forth in the existing Sublease relating
to the period prior to the effective date of this Sublease shall survive
the termination hereof.
17. Maintenance, Repairs and Alterations:
Section 7 of the Master Lease shall be modified to incorporate the
following language. "Master Lessor shall be responsible for the costs
associated with a) replacement of the roof membrane unless caused by
negligence of Lessee or Sublessee, b) The Master Lessor will be responsible
for the replacement of the base HVAC equipment if replacement is determined
by a licensed mechanical engineering firm, c) Master Lessor shall not be
responsible for any replacement of the HVAC equipment due to Sublessor or
Sublessee's negligence.
18. HVAC:
Sublessee shall maintain and repair the HVAC, electrical systems, air
compressors and the boiler after the sublease commencement date. Sublessor
to repair the exterior TRANE HVAC unit (chiller) i.e., replace compressor,
prior to sublease commencement. Sublessor shall pay up to $5,000 toward
said cost to repair this unit. If the total cost exceeds $5,000, then both
parties shall pay according to their prorata basis.
19. Prorations:
Sublessor shall pay to Sublessee for its pro rata share (25%) of any repair
or maintenance costs to the base building including roof membrane or common
area. Maintenance of HVAC shall be primarily conducted by Sublessee's
employees; however, major servicing i.e., equipment failure will be
conducted by third party vendors. Sublessor shall pay for its pro rata
share of the cost of the services provided by said third party vendors.
Repairs over $2,000.00 of base building, common area, HVAC or roof
maintenance shall be approved by both Sublessor and Sublessee prior to
work. Sublessee shall provide Sublessor with a copy of any prorated
expenses, when submitting any invoice to Sublessor.
20. Notwithstanding anything herein to the contrary, Sublessor shall not be
deemed to have assumed any obligations of Master Lessor under the Master
Lease (including work, services, repairs, restorations, provision of
insurance or the performance of any other obligation of Master Lessor under
the Master Lease), none of which shall be the obligation of Sublessor. Such
obligations of the Master Lessor shall include, without limitation, the
obligations of "Landord" under Articles 7.1, 8.2, 9.2, 9.2, 9.3, and 15.
Exhibit A: Site Plan
Exhibit B: Floor Plan
Exhibit C: Standard Lease Disclosure Addendum
Exhibit D: Agency Disclosure
Exhibit E: Arbitration for Lease
Exhibit F: Right of First Refusal
Exhibit G: Non-Disturbance and Attornment Agreement
Exhibit H: Option to Extend
Exhibit I:
Agreed by: Sublessee: /s/ Xxxxx Xxxx Date: 8/21/88
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Agreed by: Sublessor: /s/ Xxxx Xxxx Date: 8/20/98
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Agreed by: Master Lessor: /s/ Xxxx Xxxxxxx Date: 8/24/98
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EXHIBIT A
SITE PLAN
[GRAPHIC OMITTED]
EXHIBIT B
FLOOR PLAN
[GRAPHIC OMITTED]
EXHIBIT C
STANDARD LEASE DISCLOSURE ADDENDUM
Notice to Owners, Buyers and Tenants Regarding Hazardous Waste or Substances
and Underground Storage Tanks
Comprehensive federal and state laws and regulations have been enacted in the
the last few years in an effort to develop controls over the use, storage,
handling, cleanup, removal and disposal of hazardous wastes or substances. Some
of these laws and regulations, such as, for example, the so-called "Super Fund
Act", provide for broad liability schemes wherein an owner, tenant or other user
of the property may be liable for cleanup costs and damages regardless of fault.
Other laws and regulations set standards for the handling of asbestos or
establish requirements for the use, modification, abandonment, or closing of
underground storage tanks.
It is not practical or possible to list all such laws and regulations in this
Notice. Therefore, lessors and lessees are urged to consult legal counsel to
determine their respective rights and liabilities with respect to the issues
described in this Notice as well as other aspects of the proposed transaction.
If various materials that have been or may be in the future determined to be
toxic, hazardous or undesirable, or are going to be used, stored, handled or
disposed of on the property, or if the property has or may have underground
storage tanks for storage of such hazardous materials, or that such materials
may be in the equipment, improvements or soil, it is essential that legal and
technical advice be obtained to determine, among other things, what permits and
approvals have been or may be required, if any, the estimated costs and expenses
associated with the use, storage, handling, cleanup, removal or disposal of the
hazardous wastes or substances and what contractual provisions and protection
are necessary or desirable. It may also be important to obtain expert assistance
for site investigations and building inspections. The past uses of the property
may provide valuable information as to the likelihood of hazardous wastes or
substances, or underground storage tanks being on the property.
The term "hazardous wastes or substances" is used in this Notice in its very
broadest sense and includes, but is not limited to, all those listed under
Proposition 65, petroleum base products, paints and solvents, lead, cyanide,
DDT, printing inks, acids, pesticides, ammmonium compounds, asbestos, PCBs and
other chemical products. Hazardous wastes or substances and underground storage
tanks may be present on all types of real property. This Notice is, therefore,
meant to apply to any transaction involving any type of real property, whether
improved or unimproved.
Although Xxxxxx & Coppin Co., Inc. or its salespeople, will disclose any
knowledge it actually possesses with respect to the existence of hazardous
wastes or substances, or underground storage tanks on the property, Xxxxxx &
Xxxxxx Co., Inc. has not made investigations or obtained reports regarding the
subject matter of this Notice, except as may be described in a separate written
document, studies or investigation by experts. Therefore, unless there are
additional documents or studies attached to this notice, lease or contract, this
will serve as notification that Xxxxxx & Coppin Co., Inc. or its salespeople
make no representation regarding the existence or non-existence of hazardous
wastes or substances, or underground storage tanks on the property. You should
contact a professional, such as a civil engineer, geologist, industrial
hygienist or other persons with experience in these matters to advise you
concerning the property.
Americans with Disabilities Act (ADA)
On July 26, 1991, the federal legislation known as the Americans with
Disabilities Act (ADA) was signed into law by Xxxxxxxxx Xxxx. The purpose of the
ADA is to integrate persons with disabilities into the economic and social
mainstream of American life. Title III of the ADA applies to Lessors and Lessees
of "places of public accommodation" and "commercial facilities", and requires
that places of public accommodation undertake "readily achievable" removal of
communication and access barriers to the disabled. This requirement of Title III
of the ADA is effective January 26, 1992.
It is important that building owners identify and undertake "readily achievable"
removal of any such barriers in the common areas, sidewalks, parking lots and
other areas of the building under their control.
The lessor and lessee is responsible for compliance with ADA relating to removal
of barriers within the workplace i.e., arrangement of interior furnishings and
access within the premises, and any improvements installed by lessor and lessee.
Xxxxxx & Xxxxxx Company, Inc. recommends that both parties seek expert advice
regarding the implications of the Act as it affects this agreement.
Xxxxxxx-Xxxxxx:
"The property which is the subject of this contract may be situated in a Special
Study Zone as designated under the Xxxxxxx-Xxxxxx Geologic Hazard Act, Sections
2621-2625, inclusive, of the Caifornia Public Resources Code; and, as such, the
construction or development on this property of any structure for human
occupancy may be subject to the findings of geologic report prepared by a
geologist registered in the State of California, unless such report is waived by
the City or County under the terms of that act. No representations on the
subject are made by the lessor or agent, and the lessee should make his own
inquiry or investigation".
Flood Hazard Area Disclosure:
The subject property may be situated in a "Special Flood Hazard Area" as set
forth on a Federal Emergency Management Agency (FEMA) "Flood Insurance Rate Map"
(FIRM) or "Flood Hazard Boundary Map" (FHBM). The law provides that, as a
condition of obtaining financing on most structures located in a "Special Floods
Hazard Area", lender requires flood insurance where the property or its
attachments are security for a loan. Lessee should consult with experts
concerning the possible risk of flooding.
Acknowledgment:
Lessee: /s/ Xxxxx Xxxx Date: 8/21/98
------------------------ ------------
Lessor: /s/ Xxxx Xxxx Date: 8/20/98
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EXHIBIT D
LEASING DISCLOSURE REGARDING
REAL ESTATE AGENCY RELATIONSHIP
When you enter into a discussion with a real estate agent regarding a real
estate transaction, you should from the outset understand what type of agency
relationship or representation you wish to have with the agent in the
transaction.
SUBLESSOR'S AGENT
A Sublessor's agent under a listing agreement with the Sublessor acts as the
agent for the Sublessor. A Sublessor's agent or a subagent of that agent has the
following affirmative obligations:
To the Sublessor:
(a) A fiduciary duty of utmost care, integrity, honesty and loyalty in dealing
with the Sublessor.
To the Sublessee and the Sublessor:
(a) Diligent exercise of reasonable skill and care in performance of the agent's
duties.
{b) A duty of honest and fair dealing and good faith.
(c) A duty to disclose all facts known to the agent materially affecting the
value or desirability of the property that are not known to, or within the
diligent attention and observation of, the parties.
An agent is not obligated to reveal to either party any confidential information
obtained from the other party which does not involve the affirmative duties set
forth above.
SUBLESSEE'S AGENT
A Sublessee's agent can, with a Sublessee's consent, agree to act as agent for
the Sublessee only. In these situations, the agent is not the Sublessor's agent,
even if by agreement the agent may receive compensation for services rendered,
either in full or in part from the Sublessor. An agent acting only for a
Sublessee has the following affirmative obligations.
To the Sublessee:
(a) A fiduciary duty of utmost care, integrity, honesty and loyalty in dealings
with the Sublessee.
To the Sublessee and the Sublessor:
(a) Diligent exercise of reasonable skill and care in performance of the agent's
duties.
(b) A duty of honest and fair dealing and good faith.
(c) A duty to disclose all facts known to the agent materially affecting the
value or desirability of the property that are not known to, or within the
diligent attention and observation of, the parties.
An agent is not obligated to reveal to either party any confidential information
obtained from the other party which does not involve the affirmative duties set
forth above.
AGENT REPRESENTING BOTH SUBLESSOR AND SUBLESSEE
A real estate agent, either acting directly or through one or more associate
licensees, can legally be the agent of both the Sublessor and the Sublessee in a
transaction, but only with the knowledge and consent of both the Sublessor and
the Sublessee.
In a dual agency situation, the agent has the following affirmative obligations
to both the Sublessor and the Sublessee.
(a) A fiduciary duty of utmost care, integrity, honest and loyalty in the
dealings with either Sublessor or Sublessee.
(b) Other duties to the Sublessor and the Sublessee as stated above in their
respective sections.
In representing both Sublessor and Sublessee, the agent may not, without the
express permission of the respective party, disclose to the other party that the
Sublessor will accept a rent less than the listed rent or that the Sublessee
will pay a rent greater than the rent offered.
The above duties of the agent in a real estate transaction do not relieve a
Sublessor or Sublessee from the responsibility to protect their own interests.
You should carefully read all agreements to assure that they adequately express
your understanding of the transaction. A real estate agent is a person qualified
to advise about real estate. If legal or tax advice is desired, consult a
competent professional.
You should read its contents each time it is presented to you, considering the
relationship between you and the real estate agent in your specific transaction.
We acknowledge receipt of a copy of this disclosure.
Sublessor /s/ Xxxx Xxxx Date 8/20/98
----------------------------- ---------------
Sublessee /s/ Xxxxx Xxxx Date 8/21/98
----------------------------- ---------------
================================================================================
SIGN BELOW TO AUTHORIZE TYPE OF AGENCY
Xxxxxx & Coppin Company, Inc., is the agent of (check one).
(Name of Listing Agent)
The Sublessor exclusively; or
-----
X Both the Sublessee and Sublessor
-----
CONFIRMED AND AUTHORIZED:
Sublessor /s/ Xxxx Xxxx Date 8/20/98
----------------------------- ---------------
Sublessor Date
----------------------------- ---------------
Agent By Date
----------------------------------------- -------- ---------------
--------------------------------------------------------------------------------
Xxxxxx & Coppin Company, Inc., is the agent of (check one):
(Name of Sublessee's agent)
The Sublessee exclusively; or
-----
The Sublessor exclusively; or
-----
X Both the Sublessee and Sublessor
-----
CONFIRMED AND AUTHORIZED:
Sublessee /s/ Xxxxx Xxxx Date 8/21/98
----------------------------- ---------------
Sublessee Date
----------------------------- ---------------
Agent By Date
----------------------------------------- -------- ---------------
EXHIBIT E
ARBITRATION OF DISPUTES
FOR LEASE
Any dispute or claim in law or equity arising out of this contract or any
resulting transaction shall be decided by neutral binding arbitration in
accordance with the rules of the American Arbitration Association, and not by
court action except as provided by California law for judicial review of
arbitration proceedings. Judgment upon the award rendered by the arbitrator(s)
may be entered in any court having jurisdiction thereof. The parties shall have
the right to discovery in accordance with Code of Civil Procedure Section
1283.05. The following matters are excluded from arbitration hereunder: (a) a
judicial or non-judicial foreclosure or other action or proceeding to enforce a
deed of trust, mortgage, or real property sales contract as defined in Civil
Code Section 2985, (b) an unlawful detainer action, (c) the filing or
enforcement of a mechanic's lien, (d) any matter which is within the
jurisdiction of a probate court, or small claims court, or an action for bodily
injury or wrongful death, or for latent or patent defects to which Code of Civil
Procedure Section 337.1 or Section 337.15 applies. The filing of a judicial
action to enable the recording of a notice of pending action, for order of
attachment, receivership, injunction, or other provisional remedies, shall not
constitute a waiver of the right to arbitrate under this provision.
Any dispute or claim by or against broker(s) and/or associate licensee(s)
participating in this transaction shall be submitted to arbitration consistent
with the provision above only if the broker(s) and/or associate licensee(s)
making the claim or against whom the claim is made shall have agreed to submit
it to arbitration consistent with this provision.
"NOTICE: BY INITIALLING IN THE SPACE BELOW, YOU ARE AGREEING TO HAVE ANY DISPUTE
ARISING OUT OF THE MATTERS INCLUDED IN THE 'ARBITRATION OF DISPUTES' PROVISION
DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW, AND YOU ARE GIVING
UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN COURT OR JURY
TRIAL. BY INITIALLING IN THE SPACE BELOW, YOU ARE GIVING UP YOUR JUDICIAL RIGHTS
TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE
'ARBITRATION OF DISPUTES' PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION
AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE
AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS
ARBITRATION PROVISION IS VOLUNTARY."
"WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING
OUT OF THE MATTERS INCLUDED IN THE 'ARBITRATION OF DISPUTES' PROVISION TO
NEUTRAL ARBITRATION."
( ) (/s/ SW) Lessee agrees ( ) ( ) Lessee does not agrees
---- ------- ---- ----
( ) (/s/ SM) Lessor agrees ( ) ( ) Lessor does not agrees
---- ------- ---- ----
( ) ( ) Lessee's Broker agrees
---- -------
( ) ( ) Lessor's Broker agrees
---- -------
