California Net Lease] LEASE AGREEMENT
[California
Net Lease]
THIS
LEASE AGREEMENT is made this 19th
day of
January, 2007, between CATELLUS
OPERATING LIMITED PARTNERSHIP
("Landlord"), and the Tenant named below.
Tenant:
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ViewSonic
Corporation, a Delaware corporation
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Tenant’s
Representative,
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Address,
and Telephone:
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000
X. Xxxx Xxxxxx Xxxx
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Xxxx
xx Xxxxxxxx,
XX 00000
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000-000-0000
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Premises:
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The
entire Building, containing approximately 298,050
rentable square feet, as determined by Landlord, as shown on
Exhibit A.
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Project:
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Industry
Distribution Center #4-10
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Building:
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Industry
Distribution Center #9
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381
S. Brea Canyon Road
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City
of Industry ,
CA 91789
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Tenant's
Proportionate Share of Project:
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19.030%
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Tenant's
Proportionate Share of Building:
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100.000%
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Lease
Term:
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Beginning
on the Commencement Date and ending on the last day of the 85th full
calendar month thereafter.
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Commencement
Date:
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July
1, 2007
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Initial
Monthly Base Rent:
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See
Addendum 1
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Initial
Estimated Monthly
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1.
Utilities:
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$1,445.00
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Operating
Expense Payments:
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(estimates
only and subject to
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2.
Common Area Charges:
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$4,567.00*
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adjustment
to actual costs and
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expenses
according to the
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3.
Taxes:
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$30,578.00
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provisions
of this Lease)
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4.
Insurance:
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$4,918.00
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5.
Others:
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Prop
Mgmt Fee
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$3,378.00*
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*Property
Management Fee not to exceed 2% of gross receipts (as defined
in Paragraph
6), inclusive of any Property Management overhead reimbursement
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Initial
Estimated Monthly Operating Expense Payments:
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$44,886.00
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Initial
Monthly Base Rent and Operating Expense Payments:
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$44,886.00
(includes free rent for this initial month)
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Security
Deposit:
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$0.00
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Broker:
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Xxxxxxx
& Xxxxxxxxx of California, Inc.
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Addenda:
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1.
Base Rent Adjustments 2. Cap on Controllable Operating Expenses
3. Renewal
Option (Baseball Arbitration) 4. Construction (Turnkey) 5.
HVAC
Maintenance Contract 6. Move Out Conditions
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Exhibits:
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A.
Site Plan
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1. Granting
Clause.
In
consideration of the obligation of Tenant to pay rent as herein provided
and in
consideration of the other terms, covenants, and conditions hereof, Landlord
leases to Tenant, and Tenant takes from Landlord, the Premises, to have and
to
hold for the Lease Term, subject to the terms, covenants and conditions of
this
Lease.
-1-
2. Acceptance
of Premises.
Tenant
shall accept the Premises in its condition as of the Commencement Date, subject
to all applicable laws, ordinances, regulations, covenants and restrictions.
Landlord has made no representation or warranty as to the suitability of
the
Premises for the conduct of Tenant's business, and Tenant waives any implied
warranty that the Premises are suitable for Tenant's intended purposes. Except
as provided in Paragraph 10, in no event shall Landlord have any obligation
for
any defects in the Premises or any limitation on its use. The taking of
possession of the Premises shall be conclusive evidence that Tenant accepts
the
Premises and that the Premises were in good condition at the time possession
was
taken except for items that are Landlord's responsibility under Paragraph
10 and
any punchlist items agreed to in writing by Landlord and Tenant.
3. Use.
The
Premises shall be used only for the purpose of receiving, storing, shipping
and
selling (but limited to wholesale sales) products, materials and merchandise
made and/or distributed by Tenant and for such other lawful purposes as may
be
incidental thereto; provided, however, with Landlord's prior written consent,
Tenant may also use the Premises for light manufacturing. Tenant shall not
conduct or give notice of any auction, liquidation, or going out of business
sale on the Premises. Tenant will use the Premises in a careful, safe and
proper
manner and will not commit waste, overload the floor or structure of the
Premises or subject the Premises to use that would damage the Premises. Tenant
shall not permit any objectionable or unpleasant odors, smoke, dust, gas,
noise,
or vibrations to emanate from the Premises, or take any other action that
would
constitute a nuisance or would disturb, unreasonably interfere with, or endanger
Landlord or any tenants of the Project. Outside storage, including without
limitation, storage of trucks and other vehicles, is prohibited without
Landlord's prior written consent. Tenant, at its sole expense, shall use
and
occupy the Premises in compliance with all laws, including, without limitation,
the Americans With Disabilities Act, orders, judgments, ordinances, regulations,
codes, directives, permits, licenses, covenants and restrictions now or
hereafter applicable to the Premises (collectively, "Legal Requirements")
unless
such Legal Requirements are met due to their “grandfathered” nature. The
Premises shall not be used as a place of public accommodation under the
Americans With Disabilities Act or similar state statutes or local ordinances
or
any regulations promulgated thereunder, all as may be amended from time to
time.
Tenant shall, at its expense, make any alterations or modifications, within
or
without the Premises, that are required by Legal Requirements related to
Tenant's use or occupation of the Premises unless such Legal Requirements
are
met due to their “grandfathered” nature. Tenant will not use or permit the
Premises to be used for any purpose or in any manner that would void Tenant's
or
Landlord's insurance, increase the insurance risk, or cause the disallowance
of
any sprinkler credits. If any increase in the cost of any insurance on the
Premises or the Project is caused by Tenant's use or occupation of the Premises,
or because Tenant vacates the Premises, then Tenant shall pay the amount
of such
increase to Landlord. Any occupation of the Premises by Tenant prior to the
Commencement Date shall be subject to all obligations of Tenant under this
Lease.
4. Base
Rent.
Tenant
shall pay Base Rent in the amount set forth above. The first month's Base
Rent,
the Security Deposit, and the first monthly installment of estimated Operating
Expenses (as hereafter defined) shall be due and payable on the date hereof,
and
Tenant promises to pay to Landlord in advance, without demand, deduction
or
set-off, monthly installments of Base Rent on or before the first day of
each
calendar month succeeding the Commencement Date. Payments of Base Rent for
any
fractional calendar month shall be prorated. All payments required to be
made by
Tenant to Landlord hereunder (or
to
such other party as Landlord may from time to time specify in writing) shall
be
made by Electronic Fund Transfer (“EFT”) or by check of immediately available
federal funds before 11:00 a.m., Eastern Time, at such place, within the
continental United States, as Landlord may from time to time designate to
Tenant
in writing.
The
obligation of Tenant to pay Base Rent and other sums to Landlord and the
obligations of Landlord under this Lease are independent obligations. Tenant
shall have no right at any time to xxxxx, reduce, or set-off any rent due
hereunder except as may be expressly provided in this Lease. If Tenant is
delinquent in any monthly installment of Base Rent or of estimated Operating
Expenses for more than 5 business days, Tenant shall pay to Landlord on demand
a
late charge equal to 8 percent of such delinquent sum. The provision for
such
late charge shall be in addition to all of Landlord's other rights and remedies
hereunder or at law and shall not be construed as a penalty.
5. Security
Deposit.
Intentionally Omitted.
6. Operating
Expense Payments.
During
each month of the Lease Term, on the same date that Base Rent is due, Tenant
shall pay Landlord an amount equal to 1/12 of the annual cost, as estimated
by
Landlord from time to time, of Tenant's Proportionate Share (hereinafter
defined) of Operating Expenses for the Project. Payments thereof for any
fractional calendar month shall be prorated. The term "Operating Expenses"
means
all costs and expenses incurred by Landlord with respect to the ownership,
maintenance, and operation of the Project including, but not limited to costs
of: Taxes (hereinafter defined) and fees payable to tax consultants and
attorneys for consultation and contesting taxes; insurance; utilities;
maintenance, repair and replacement of all portions of the Project, including
without limitation, paving and parking areas, roads, roofs (including
the roof membrane),
alleys,
and driveways, mowing, landscaping, exterior painting, utility lines, heating,
ventilation and air conditioning systems, lighting, electrical systems and
other
mechanical and building systems; amounts paid to contractors and subcontractors
for work or services performed in connection with any of the foregoing; charges
or assessments of any association to which the Project is subject; property
management fees (not
to
exceed 2% of gross receipts payable by Tenant to Landlord per the terms of
this
Lease which shall include the sum of Base Rent and Operating
Expenses)
payable
to a property manager, including any affiliate of Landlord, or if there is
no
property manager, an administration fee of 15 percent of Operating Expenses
payable to Landlord; security services, if any; trash collection, sweeping
and
removal; and additions or alterations made by Landlord to the Project or
the
Building in order to comply with Legal Requirements (other than those expressly
required herein to be made by Tenant) or that are appropriate to the continued
operation of the Project or the Building as a bulk warehouse facility in
the
market area, provided that the cost of additions or alterations that are
required to be capitalized for federal income tax purposes shall be amortized
on
a straight line basis over a period equal to the lesser of the useful life
(in
accordance with generally
accepted accounting principles
(“GAAP”)) thereof for federal income tax purposes or 10 years, whichever is
longer. Operating Expenses do not include:
(a)
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costs,
expenses, depreciation or amortization for capital repairs and
capital
replacements required to be made by Landlord under Paragraph 10
of this
Lease;
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-2-
(b)
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debt
service under mortgages or ground rent under ground leases, costs
of
restoration to the extent of net insurance proceeds received by
Landlord
with respect thereto;
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(c)
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marketing
costs for the Project, including without limitation, leasing commissions,
attorneys’ fees in connection with the negotiation and preparation of
letters, deal memos, letters of intent, leases, subleases and/or
assignments, space planning costs, and other costs and expenses
incurred
in connection with lease, sublease and/or assignment negotiations
and
transactions with Tenant or present or prospective tenants or other
occupants of the Building;
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(d)
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the
costs of renovating space for
tenants;
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(e)
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costs
incurred in connection with any environmental clean-up, response
action,
or remediation on, in, under or about the Premises or the Building
which
are Landlord’s obligations per Paragraph 30 of this Lease (specifically
excluding any such costs which were incurred as a result of the
actions or
omissions of Tenant, or Tenant’s employees, agents or
contractors);
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(f)
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“In-house”
legal and/or accounting fees.
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If
Tenant's total payments of Operating Expenses for any year are less than
Tenant's Proportionate Share of actual Operating Expenses for such year,
then
Tenant shall pay the difference to Landlord within 30 days after demand,
and if
more, then Landlord shall retain such excess and credit it against Tenant's
next
payments. For purposes of calculating Tenant's Proportionate Share of Operating
Expenses, a year shall mean a calendar year except the first year, which
shall
begin on the Commencement Date, and the last year, which shall end on the
expiration of this Lease. With respect to Operating Expenses which Landlord
allocates to the entire Project, Tenant's "Proportionate Share" shall be
the
percentage set forth on the first page of this Lease as Tenant's Proportionate
Share of the Project as reasonably adjusted by Landlord in the future for
changes in the physical size of the Premises or the Project; and, with respect
to Operating Expenses which Landlord allocates only to the Building, Tenant's
"Proportionate Share" shall be the percentage set forth on the first page
of
this Lease as Tenant's Proportionate Share of the Building as reasonably
adjusted by Landlord in the future for changes in the physical size of the
Premises or the Building. Landlord may equitably increase Tenant's Proportionate
Share for any item of expense or cost reimbursable by Tenant that relates
to a
repair, replacement, or service that benefits only the Premises or only a
portion of the Project or Building that includes the Premises or that varies
with occupancy or use. The estimated Operating Expenses for the Premises
set
forth on the first page of this Lease are only estimates, and Landlord makes
no
guaranty or warranty that such estimates will be accurate.
7. Utilities.
Tenant
shall pay for all water, gas, electricity, heat, light, power, telephone,
sewer,
sprinkler services, refuse and trash collection, and other utilities and
services used on the Premises, all maintenance charges for utilities, and
any
storm sewer charges or other similar charges for utilities imposed by any
governmental entity or utility provider, together with any taxes, penalties,
surcharges or the like pertaining to Tenant's use of the Premises. Landlord
may
cause at Tenant's expense any utilities to be separately metered or charged
directly to Tenant by the provider. Tenant shall pay its share of all charges
for jointly metered utilities based upon consumption, as reasonably determined
by Landlord. No interruption or failure of utilities shall result in the
termination of this Lease or the abatement of rent. Tenant agrees to limit
use
of water and sewer for normal restroom use.
8. Taxes.
Landlord shall pay all taxes, assessments and governmental charges (collectively
referred to as "Taxes") that accrue against the Project during the Lease
Term,
which shall be included as part of the Operating Expenses charged to Tenant.
Landlord may contest by appropriate legal proceedings the amount, validity,
or
application of any Taxes or liens thereof. All capital levies or other taxes
assessed or imposed on Landlord upon the rents payable to Landlord under
this
Lease and any franchise tax, any excise, transaction, sales or privilege
tax,
assessment, levy or charge measured by or based, in whole or in part, upon
such
rents from the Premises and/or the Project or any portion thereof shall be
paid
by Tenant to Landlord monthly in estimated installments or upon demand, at
the
option of Landlord, as additional rent; provided, however, in no event shall
Tenant be liable for any net income taxes imposed on Landlord unless such
net
income taxes are in substitution for any Taxes payable hereunder. If any
such
tax or excise is levied or assessed directly against Tenant, then Tenant
shall
be responsible for and shall pay the same at such times and in such manner
as
the taxing authority shall require. Tenant shall be liable for all taxes
levied
or assessed against any personal property or fixtures placed in the Premises,
whether levied or assessed against Landlord or Tenant.
9. Insurance.
Landlord shall maintain all risk property insurance covering the full
replacement cost of the Building. Landlord may, but is not obligated to,
maintain such other insurance and additional coverages as it may deem necessary,
including, but not limited to, commercial liability insurance and rent loss
insurance. All such insurance shall be included as part of the Operating
Expenses charged to Tenant. The Project or Building may be included in a
blanket
policy (in which case the cost of such insurance allocable to the Project
or
Building will be determined by Landlord based upon the insurer's cost
calculations). Tenant shall also reimburse Landlord for any increased premiums
or additional insurance which Landlord reasonably deems necessary as a result
of
Tenant's use of the Premises.
Tenant,
at its expense, shall maintain during the Lease Term: all risk property
insurance covering the full replacement cost of all property and improvements
installed or placed in the Premises by Tenant at Tenant's expense; worker's
compensation insurance with no less than the minimum limits required by law;
employer's liability insurance with such limits as required by law; and
commercial liability insurance, with a minimum limit of $1,000,000 per
occurrence and a minimum umbrella limit of $1,000,000, for a total minimum
combined general liability and umbrella limit of $2,000,000 (together with
such
additional umbrella coverage as Landlord may reasonably require) for property
damage, personal injuries, or deaths of persons occurring in or about the
Premises. Landlord may from time to time require reasonable increases in
any
such limits. The commercial liability policies shall name Landlord as an
additional insured, insure on an occurrence and not a claims-made basis,
be
issued by insurance companies which are reasonably acceptable to Landlord,
not
be cancelable unless 30 days' prior written notice shall have been given
to
Landlord, contain a hostile fire endorsement and a contractual liability
endorsement and provide primary coverage to Landlord (any policy issued to
Landlord providing duplicate or similar coverage shall be deemed excess over
Tenant's policies). Such policies or certificates thereof shall be delivered
to
Landlord by Tenant upon commencement of the Lease Term and upon each renewal
of
said insurance.
-3-
The
all
risk property insurance obtained by Landlord and Tenant shall include a waiver
of subrogation by the insurers and all rights based upon an assignment from
its
insured, against Landlord or Tenant, their officers, directors, employees,
managers, agents, invitees and contractors, in connection with any loss or
damage thereby insured against. Neither party nor its officers, directors,
employees, managers, agents, invitees or contractors shall be liable to the
other for loss or damage caused by any risk coverable by all risk property
insurance, and each party waives any claims against the other party, and
its
officers, directors, employees, managers, agents, invitees and contractors
for
such loss or damage. The failure of a party to insure its property shall
not
void this waiver. Landlord and its agents, employees and contractors shall
not
be liable for, and Tenant hereby waives all claims against such parties for,
business interruption and losses occasioned thereby sustained by Tenant or
any
person claiming through Tenant resulting from any accident or occurrence
in or
upon the Premises or the Project from any cause whatsoever, including without
limitation, damage caused in whole or in part, directly or indirectly, by
the
negligence of Landlord or its agents, employees or contractors.
10. Landlord's
Repairs.
Landlord shall maintain, at its expense, the structural soundness of the
roof,
foundation, and exterior walls of the Building in good repair, reasonable
wear
and tear and uninsured losses and damages caused by Tenant, its agents and
contractors excluded. The term "walls" as used in this Paragraph 10 shall
not
include windows, glass or plate glass, doors or overhead doors, special store
fronts, dock bumpers, dock plates or levelers, or office entries. Tenant
shall
promptly give Landlord written notice of any repair required by Landlord
pursuant to this Paragraph 10, after which Landlord shall have a reasonable
opportunity to repair.
11. Tenant's
Repairs.
Landlord, at Tenant's expense as provided in Paragraph 6, shall maintain
in good
repair and condition the parking areas and other common areas of the Building,
including, but not limited to driveways, alleys, landscape and grounds
surrounding the Premises. Subject to Landlord's obligation in Paragraph 10
and
subject to Paragraphs 9 and 15, Tenant, at its expense, shall repair, replace
and maintain in good condition all portions of the Premises and all areas,
improvements and systems exclusively serving the Premises including, without
limitation, dock and loading areas, truck doors, plumbing, water and sewer
lines
up to points of common connection, fire sprinklers and fire protection systems,
entries, doors, ceilings, windows, interior walls, and the interior side
of
demising walls, and heating, ventilation and air conditioning systems. Such
repair and replacements include capital expenditures and repairs whose benefit
may extend beyond the Term. Heating, ventilation and air conditioning systems
and other mechanical and building systems serving the Premises shall be
maintained at Tenant's expense pursuant to maintenance service contracts
entered
into by Tenant or, at Landlord's election, by Landlord. The scope of services
and contractors under such maintenance contracts shall be reasonably approved
by
Landlord. If Tenant fails to perform any repair or replacement for which
it is
responsible, Landlord may perform such work and be reimbursed by Tenant within
10 days after demand therefor. Subject to Paragraphs 9 and 15, Tenant shall
bear
the full cost of any repair or replacement to any part of the Building or
Project that results from damage caused by Tenant, its agents, contractors,
or
invitees and any repair that benefits only the Premises.
12. Tenant-Made
Alterations and Trade Fixtures.
Any
alterations, additions, or improvements made by or on behalf of Tenant to
the
Premises ("Tenant-Made Alterations") shall be subject to Landlord's prior
written consent. Tenant shall cause, at its expense, all Tenant-Made Alterations
to comply with insurance requirements and with Legal Requirements and shall
construct at its expense any alteration or modification required by Legal
Requirements as a result of any Tenant-Made Alterations. All Tenant-Made
Alterations shall be constructed in a good and workmanlike manner by contractors
reasonably acceptable to Landlord and only good grades of materials shall
be
used. All plans and specifications for any Tenant-Made Alterations shall
be
submitted to Landlord for its approval. Landlord may monitor construction
of the
Tenant-Made Alterations. Tenant shall reimburse Landlord for its costs in
reviewing plans and specifications and in monitoring construction. Landlord's
right to review plans and specifications and to monitor construction shall
be
solely for its own benefit, and Landlord shall have no duty to see that such
plans and specifications or construction comply with applicable laws, codes,
rules and regulations. Tenant shall provide Landlord with the identities
and
mailing addresses of all persons performing work or supplying materials,
prior
to beginning such construction, and Landlord may post on and about the Premises
notices of non-responsibility pursuant to applicable law. Tenant shall furnish
security or make other arrangements satisfactory to Landlord to assure payment
for the completion of all work free and clear of liens and shall provide
certificates of insurance for worker's compensation and other coverage in
amounts and from an insurance company satisfactory to Landlord protecting
Landlord against liability for personal injury or property damage during
construction. Upon completion of any Tenant-Made Alterations, Tenant shall
deliver to Landlord sworn statements setting forth the names of all contractors
and subcontractors who did work on the Tenant-Made Alterations and final
lien
waivers from all such contractors and subcontractors. Upon surrender of the
Premises, all Tenant-Made Alterations and any leasehold improvements constructed
by Landlord or Tenant shall remain on the Premises as Landlord's property,
except to the extent Landlord requires removal at Tenant's expense of any
such
items or Landlord and Tenant have otherwise agreed in writing in connection
with
Landlord's consent to any Tenant-Made Alterations. Tenant shall repair any
damage caused by such removal.
Tenant,
at its own cost and expense and without Landlord's prior approval, may erect
such shelves, bins, machinery and trade fixtures (collectively "Trade Fixtures")
in the ordinary course of its business provided that such items do not alter
the
basic character of the Premises, do not overload or damage the Premises,
and may
be removed without injury to the Premises, and the construction, erection,
and
installation thereof complies with all Legal Requirements and with Landlord's
requirements set forth above. Tenant shall remove its Trade Fixtures and
shall
repair any damage caused by such removal.
-4-
13. Signs.
Tenant
shall not make any changes to the exterior of the Premises, install any exterior
lights, decorations, balloons, flags, pennants, banners, or painting, or
erect
or install any signs, windows or door lettering, placards, decorations, or
advertising media of any type which can be viewed from the exterior of the
Premises, without Landlord's prior written consent. Upon surrender or vacation
of the Premises, Tenant shall have removed all signs and repair, paint, and/or
replace the building facia surface to which its signs are attached. Tenant
shall
obtain all applicable governmental permits and approvals for sign and exterior
treatments. All signs, decorations, advertising media, blinds, draperies
and
other window treatment or bars or other security installations visible from
outside the Premises shall be subject to Landlord's approval and conform
in all
respects to Landlord's requirements.
14. Parking.
Tenant
shall be entitled to park in common with other tenants of the Project in
those
areas designated for nonreserved parking. Landlord may allocate parking spaces
among Tenant and other tenants in the Project if Landlord determines that
such
parking facilities are becoming crowded. Landlord shall not be responsible
for
enforcing Tenant's parking rights against any third parties.
15. Restoration.
If at
any time during the Lease Term the Premises are damaged by a fire or other
casualty, Landlord shall notify Tenant within 60 days after such damage as
to
the amount of time Landlord reasonably estimates it will take to restore
the
Premises. If the restoration time is estimated to exceed 6 months, either
Landlord or Tenant may elect to terminate this Lease upon notice to the other
party given no later than 30 days after Landlord's notice. If neither party
elects to terminate this Lease or if Landlord estimates that restoration
will
xxxx 0 months or less, then, subject to receipt of sufficient insurance
proceeds, Landlord shall promptly restore the Premises excluding the
improvements installed by Tenant or by Landlord and paid by Tenant, subject
to
delays arising from the collection of insurance proceeds or from Force Majeure
events. Tenant at Tenant's expense shall promptly perform, subject to delays
arising from the collection of insurance proceeds, or from Force Majeure
events,
all repairs or restoration not required to be done by Landlord and shall
promptly re-enter the Premises and commence doing business in accordance
with
this Lease. Notwithstanding the foregoing, either party may terminate this
Lease
if the Premises are damaged during the last year of the Lease Term and Landlord
reasonably estimates that it will take more than one month to repair such
damage. Base Rent and Operating Expenses shall be abated for the period of
repair and restoration in the proportion which the area of the Premises,
if any,
which is not usable by Tenant bears to the total area of the Premises. Such
abatement shall be the sole remedy of Tenant, and except as provided herein,
Tenant waives any right to terminate the Lease by reason of damage or casualty
loss.
16. Condemnation.
If any
part of the Premises or the Project should be taken for any public or
quasi-public use under governmental law, ordinance, or regulation, or by
right
of eminent domain, or by private purchase in lieu thereof (a "Taking" or
"Taken"), and the Taking would prevent or materially interfere with Tenant's
use
of the Premises or in Landlord's judgment would materially interfere with
or
impair its ownership or operation of the Project, then upon written notice
by
Landlord this Lease shall terminate and Base Rent shall be apportioned as
of
said date. If part of the Premises shall be Taken, and this Lease is not
terminated as provided above, the Base Rent payable hereunder during the
unexpired Lease Term shall be reduced to such extent as may be fair and
reasonable under the circumstances. In the event of any such Taking, Landlord
shall be entitled to receive the entire price or award from any such Taking
without any payment to Tenant, and Tenant hereby assigns to Landlord Tenant's
interest, if any, in such award. Tenant shall have the right, to the extent
that
same shall not diminish Landlord's award, to make a separate claim against
the
condemning authority (but not Landlord) for such compensation as may be
separately awarded or recoverable by Tenant for moving expenses and damage
to
Tenant's Trade Fixtures, if a separate award for such items is made to
Tenant.
17. Assignment
and Subletting.
Without
Landlord's prior written consent, which Landlord shall not unreasonably
withhold, Tenant shall not assign this Lease or sublease the Premises or
any
part thereof or mortgage, pledge, or hypothecate its leasehold interest or
grant
any concession or license within the Premises and any attempt to do any of
the
foregoing shall be void and of no effect. For purposes of this paragraph,
a
transfer of the ownership interests resulting in a change of control of Tenant
shall be deemed an assignment of this Lease unless such ownership interests
are
publicly traded or if the transfer is caused by an initial public offering.
Notwithstanding the above, occupancy
of all or part of the Premises by parent, subsidiary, or affiliated companies
of
Tenant or of Tenant’s parent or of Tenant’s subsidiary shall not be deemed an
assignment or subletting provided that such parent, subsidiary or affiliated
companies were not formed as a subterfuge to avoid the obligations of this
Article 17. Furthermore, without limiting the generality of the foregoing,
Tenant may assign the Lease at any time, or sublease all or part of the
Premises, without receipt of Landlord’s consent, to any entity which is
con-trolled directly or indirectly by Tenant, or which entity con-trols,
directly or indirectly, Tenant (“Tenant Affiliate”), or which owns or is owned
by the Tenant Affiliate, so long as such transaction was not entered into
as a
subterfuge to avoid the obligations and restrictions of the Lease.
Tenant
shall reimburse Landlord for all of Landlord's reasonable out-of-pocket expenses
in connection with any assignment or sublease in an amount not to exceed
$1,500.
Upon Landlord's receipt of Tenant's written notice of a desire to assign
or
sublet the Premises, or any part thereof (other than to a Tenant Affiliate),
Landlord may, by giving written notice to Tenant within 15 days after receipt
of
Tenant's notice, terminate this Lease with respect to the space described
in
Tenant's notice, as of the date specified in Tenant's notice for the
commencement of the proposed assignment or sublease. If Landlord so terminates
the Lease, Landlord may enter into a lease directly with the proposed sublessee
or assignee. Tenant may withdraw its notice to sublease or assign by notifying
Landlord within 10 days after Landlord has given Tenant notice of such
termination, in which case the Lease shall not terminate but shall
continue.
-5-
It
shall
be reasonable for the Landlord to withhold its consent to any assignment
or
sublease in any of the following instances: (i) an Event of Default has occurred
and is continuing that would not be cured upon the proposed sublease or
assignment; (ii) the assignee or sublessee does not have a net worth which
is
consistent with net worth of other tenant’s which Landlord is entering into
leases with in the Project; (iii) the intended use of the Premises by the
assignee or sublessee is not consistent with the use provision herein; (iv)
the
intended use of the Premises by the assignee or sublessee would materially
increase the pedestrian or vehicular traffic to the Premises or the Project;
(v)
occupancy of the Premises by the assignee or sublessee would, in Landlord’s
opinion, violate an agreement binding upon Landlord or the Project with regard
to the identity of tenants, usage in the Project, or similar matters; (vi)
the
identity or business reputation of the assignee or sublessee will, in the
good
faith judgment of Landlord, tend to damage the goodwill or reputation of
the
Project; (vii) the assignment or sublet is to another tenant in the Project
and
is at rates which are below those charged by Landlord for comparable space
in
the Project and Landlord has space available in the Project to accommodate
the
tenant’s needs; (viii) in the case of a sublease, the subtenant has not
acknowledged that the Lease controls over any inconsistent provision in the
sublease; (ix) the proposed assignee or sublessee is a governmental agency;
or
(x) there is vacant space in the Project suitable for lease to the proposed
sublessee or assignee. Tenant and Landlord acknowledge that each of the
foregoing criteria are reasonable as of the date of execution of this Lease.
The
foregoing criteria shall not exclude any other reasonable basis for Landlord
to
refuse its consent to such assignment or sublease. Any approved assignment
or
sublease shall be expressly subject to the terms and conditions of this Lease.
Tenant shall provide to Landlord all information concerning the assignee
or
sublessee as Landlord may request.
Notwithstanding
any assignment or subletting, Tenant shall at all times remain fully responsible
and liable for the payment of the rent and for compliance with all of Tenant's
other obligations under this Lease (regardless of whether Landlord's approval
has been obtained for any such assignments or sublettings). In the event
that
the rent due and payable by a sublessee or assignee (or a combination of
the
rental payable under such sublease or assignment plus any bonus or other
consideration therefor or incident thereto) exceeds the rental payable under
this Lease, then Tenant shall be bound and obligated to pay Landlord as
additional rent hereunder fifty (50%) percent of such excess rental and other
excess consideration (“Profit”) within 10 days following receipt of each month’s
Profit thereof by Tenant. Profit shall be further defined to take into
consideration all of Tenant’s costs in any assignment of subletting including
but not limited to real estate commissions, legal fees, marketing costs,
any
improvement allowance or other economic concession (planning allowance, moving
expenses, etc.), paid by Tenant to sublessee or assignee.
If
this
Lease be assigned or if the Premises be subleased (whether in whole or in
part)
or in the event of the mortgage, pledge, or hypothecation of Tenant's leasehold
interest or grant of any concession or license within the Premises or if
the
Premises be occupied in whole or in part by anyone other than Tenant, then
upon
a default by Tenant hereunder Landlord may collect rent from the assignee,
sublessee, mortgagee, pledgee, party to whom the leasehold interest was
hypothecated, concessionee or licensee or other occupant and, except to the
extent set forth in the preceding paragraph, apply the amount collected to
the
next rent payable hereunder; and all such rentals collected by Tenant shall
be
held in trust for Landlord and immediately forwarded to Landlord. No such
transaction or collection of rent or application thereof by Landlord, however,
shall be deemed a waiver of these provisions or a release of Tenant from
the
further performance by Tenant of its covenants, duties, or obligations
hereunder.
18. Indemnification. Except
for the negligence of Landlord, its agents, employees or contractors, and
to the
extent permitted by law, Tenant agrees to indemnify, defend and hold harmless
Landlord, and Landlord's agents, employees and contractors, from and against
any
and all losses, liabilities, damages, costs and expenses (including attorneys'
fees) resulting from claims by third parties for injuries to any person and
damage to or theft or misappropriation or loss of property occurring in or
about
the Project and arising from the use and occupancy of the Premises or from
any
activity, work, or thing done, permitted or suffered by Tenant in or about
the
Premises or due to any other act or omission of Tenant, its subtenants,
assignees, invitees, employees, contractors and agents. The furnishing of
insurance required hereunder shall not be deemed to limit Tenant's obligations
under this Paragraph 18.
19. Inspection
and Access.
Landlord and its agents, representatives, and contractors may enter the Premises
with prior notice at any reasonable time to inspect the Premises and to make
such repairs as may be required or permitted pursuant to this Lease and for
any
other business purpose. Landlord and Landlord's representatives may enter
the
Premises during business hours for the purpose of showing the Premises to
prospective purchasers and, during the last nine (9) months of the Lease
Term,
to prospective tenants. Landlord may erect a suitable sign on the Premises
stating the Premises are available to let or that the Project is available
for
sale. Landlord may grant easements, make public dedications, designate common
areas and create restrictions on or about the Premises, provided that no
such
easement, dedication, designation or restriction materially interferes with
Tenant's use or occupancy of the Premises. At Landlord's request, Tenant
shall
execute such instruments as may be necessary for such easements, dedications
or
restrictions.
20. Quiet
Enjoyment.
If
Tenant shall perform all of the covenants and agreements herein required
to be
performed by Tenant, Tenant shall, subject to the terms of this Lease, at
all
times during the Lease Term, have peaceful and quiet enjoyment of the Premises
against any person claiming by, through or under Landlord.
21. Surrender.
Upon
termination of the Lease Term or earlier termination of Tenant's right of
possession, Tenant shall surrender the Premises to Landlord in the same
condition as received, broom clean, ordinary wear and tear and casualty loss
and
condemnation covered by Paragraphs 15 and 16 excepted. Any Trade Fixtures,
Tenant-Made Alterations and property not so removed by Tenant as permitted
or
required herein shall be deemed abandoned and may be stored, removed, and
disposed of by Landlord at Tenant's expense, and Tenant waives all claims
against Landlord for any damages resulting from Landlord's retention and
disposition of such property. All obligations of Tenant hereunder not fully
performed as of the termination of the Lease Term shall survive the termination
of the Lease Term, including without limitation, indemnity obligations, payment
obligations with respect to Operating Expenses and obligations concerning
the
condition and repair of the Premises.
-6-
22. Holding
Over.
If
Tenant retains possession of the Premises after the termination of the Lease
Term, unless otherwise agreed in writing, such possession shall be subject
to
immediate termination by Landlord at any time, and all of the other terms
and
provisions of this Lease (excluding any expansion or renewal option or other
similar right or option) shall be applicable during such holdover period,
except
that Tenant shall pay Landlord from time to time, upon demand, as Base Rent
for
the holdover period, an amount equal to 150% the Base Rent in effect on the
termination date, computed on a monthly basis for each month or part thereof
during such holding over. All other payments shall continue under the terms
of
this Lease. In addition, Tenant shall be liable for all damages incurred
by
Landlord as a result of such holding over. No holding over by Tenant, whether
with or without consent of Landlord, shall operate to extend this Lease except
as otherwise expressly provided, and this Paragraph 22 shall not be construed
as
consent for Tenant to retain possession of the Premises. For
purposes of this Paragraph 22, “possession of the Premises” shall continue
until, among other things, Tenant has delivered all keys to the Premises
to
Landlord, Landlord has complete and total dominion and control over the
Premises, and Tenant has completely fulfilled all obligations required of
it
upon termination of the Lease as set forth in this Lease, including, without
limitation, those concerning the condition and repair of the
Premises.
23. Events
of Default.
Each of
the following events shall be an event of default ("Event of Default") by
Tenant
under this Lease:
(i) Tenant
shall fail to pay any installment of Base Rent or any other payment required
herein when due, and such failure shall continue for a period of 5 business
days
from the date such payment was due.
(ii) Tenant
or
any guarantor or surety of Tenant's obligations hereunder shall (A) make
a
general assignment for the benefit of creditors; (B) commence any case,
proceeding or other action seeking to have an order for relief entered on
its
behalf as a debtor or to adjudicate it as bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, liquidation, dissolution or composition
of it or its debts or seeking appointment of a receiver, trustee, custodian
or
other similar official for it or for all or of any substantial part of its
property (collectively a "proceeding for relief"); (C) become the subject
of any
proceeding for relief which is not dismissed within 60 days of its filing
or
entry; or (D) die or suffer a legal disability (if Tenant, guarantor, or
surety
is an individual) or be dissolved or otherwise fail to maintain its legal
existence (if Tenant, guarantor or surety is a corporation, partnership or
other
entity).
(iii) Any
insurance required to be maintained by Tenant pursuant to this Lease shall
be
cancelled or terminated or shall expire or shall be reduced or materially
changed, except, in each case, as permitted in this Lease.
(iv) Tenant
shall not occupy or shall vacate the Premises or shall fail to continuously
operate its business at the Premises for the permitted use set forth herein,
whether or not Tenant is in monetary or other default under this Lease. Tenant's
vacating of the Premises shall not constitute an Event of Default if, prior
to
vacating the Premises, Tenant has made arrangements reasonably acceptable
to
Landlord to (a) insure that Tenant's insurance for the Premises will not
be
voided or cancelled with respect to the Premises as a result of such vacancy,
(b) insure that the Premises are secured and not subject to vandalism, and
(c)
insure that the Premises will be properly maintained after such vacation.
Tenant
shall inspect the Premises at least once each month and report monthly in
writing to Landlord on the condition of the Premises.
(v) There
shall occur any assignment, subleasing or other transfer of Tenant's interest
in
or with respect to this Lease except as otherwise permitted in this
Lease.
(vi) Tenant
shall fail to discharge any lien placed upon the Premises in violation of
this
Lease within 30 days after Tenant’s receipt of notice of any such lien or
encumbrance is filed against the Premises.
(vii) Tenant
shall fail to comply with any provision of this Lease other than those
specifically referred to in this Paragraph 23, and except as otherwise expressly
provided herein, such default shall continue for more than 30 days after
Landlord shall have given Tenant written notice of such default.
24. Landlord's
Remedies.
Upon
each occurrence of an Event of Default and so long as such Event of Default
shall be continuing, Landlord may at any time thereafter at its election:
terminate this Lease or Tenant's right of possession, (but Tenant shall remain
liable as hereinafter provided) and/or pursue any other remedies at law or
in
equity. Upon the termination of this Lease or termination of Tenant's right
of
possession, it shall be lawful for Landlord, without formal demand or notice
of
any kind, to re-enter the Premises by summary dispossession proceedings or
any
other action or proceeding authorized by law and to remove Tenant and all
persons and property therefrom. If Landlord re-enters the Premises, Landlord
shall have the right to keep in place and use, or remove and store, all of
the
furniture, fixtures and equipment at the Premises.
-7-
Except
as
otherwise provided in the next paragraph, if Tenant breaches this Lease and
abandons the Premises prior to the end of the term hereof, or if Tenant’s right
to possession is terminated by Landlord because of an Event of Default by
Tenant
under this Lease, this Lease shall terminate. Upon such termination, Landlord
may recover from Tenant the following, as provided in Section 1951.2 of the
Civil Code of California: (i) the worth at the time of award of the unpaid
Base
Rent and other charges under this Lease that had been earned at the time
of
termination; (ii) the worth at the time of award of the amount by which the
reasonable value of the unpaid Base Rent and other charges under this Lease
which would have been earned after termination until the time of award exceeds
the amount of such rental loss that Tenant proves could have been reasonably
avoided; (iii) the worth at the time of the award by which the reasonable
value
of the unpaid Base Rent and other charges under this Lease for the balance
of
the term of this Lease after the time of award exceeds the amount of such
rental
loss that Tenant proves could have been reasonably avoided; and (iv) any
other
amount necessary to compensate Landlord for all the detriment proximately
caused
by Tenant’s failure to perform its obligations under this Lease or that in the
ordinary course of things would be likely to result therefrom. As used herein,
the following terms are defined: (a) the “worth at the time of award” of the
amounts referred to in Sections (i) and (ii) is computed by allowing interest
at
the lesser of 18 percent per annum or the maximum lawful rate. The “worth at the
time of award” of the amount referred to in Section (iii) is computed by
discounting such amount at the discount rate of the Federal Reserve Bank
of San
Francisco at the time of award plus one percent; (b) the “time of award” as used
in clauses (i), (ii), and (iii) above is the date on which judgment is entered
by a court of competent jurisdiction; (c) The “reasonable value” of the amount
referred to in clause (ii) above is computed by determining the mathematical
product of (1) the “reasonable annual rental value” (as defined herein) and (2)
the number of years, including fractional parts thereof, between the date
of
termination and the time of award. The “reasonable value” of the amount referred
to in clause (iii) is computed by determining the mathematical product of
(1)
the annual Base Rent and other charges under this Lease and (2) the number
of
years including fractional parts thereof remaining in the balance of the
term of
this Lease after the time of award.
Even
though Tenant has breached this Lease and abandoned the Premises, this Lease
shall continue in effect for so long as Landlord does not terminate Tenant’s
right to possession, and Landlord may enforce all its rights and remedies
under
this Lease, including the right to recover rent as it becomes due. This remedy
is intended to be the remedy described in California Civil Code Section 1951.4
and the following provision from such Civil Code Section is hereby repeated:
“The Lessor has the remedy described in California Civil Code Section 1951.4
(lessor may continue lease in effect after lessee’s breach and abandonment and
recover rent as it becomes due, if lessee has right to sublet or assign,
subject
only to reasonable limitations).” Any such payments due Landlord shall be made
upon demand therefor from time to time and Tenant agrees that Landlord may
file
suit to recover any sums falling due from time to time. Notwithstanding any
such
reletting without termination, Landlord may at any time thereafter elect
in
writing to terminate this Lease for such previous breach.
Exercise
by Landlord of any one or more remedies hereunder granted or otherwise available
shall not be deemed to be an acceptance of surrender of the Premises and/or
a
termination of this Lease by Landlord, whether by agreement or by operation
of
law, it being understood that such surrender and/or termination can be effected
only by the written agreement of Landlord and Tenant. Any law, usage, or
custom
to the contrary notwithstanding, Landlord shall have the right at all times
to
enforce the provisions of this Lease in strict accordance with the terms
hereof;
and the failure of Landlord at any time to enforce its rights under this
Lease
strictly in accordance with same shall not be construed as having created
a
custom in any way or manner contrary to the specific terms, provisions, and
covenants of this Lease or as having modified the same. Tenant and Landlord
further agree that forbearance or waiver by Landlord to enforce its rights
pursuant to this Lease or at law or in equity, shall not be a waiver of
Landlord's right to enforce one or more of its rights in connection with
any
subsequent default. A receipt by Landlord of rent or other payment with
knowledge of the breach of any covenant hereof shall not be deemed a waiver
of
such breach, and no waiver by Landlord of any provision of this Lease shall
be
deemed to have been made unless expressed in writing and signed by Landlord.
To
the greatest extent permitted by law, Tenant waives the service of notice
of
Landlord's intention to re-enter as provided for in any statute, or to institute
legal proceedings to that end, and also waives all right of redemption in
case
Tenant shall be dispossessed by a judgment or by warrant of any court or
judge.
The terms "enter," "re-enter," "entry" or "re-entry," as used in this Lease,
are
not restricted to their technical legal meanings. Any reletting of the Premises
shall be on such terms and conditions as Landlord in its sole discretion
may
determine (including without limitation a term different than the remaining
Lease Term, rental concessions, alterations and repair of the Premises, lease
of
less than the entire Premises to any tenant and leasing any or all other
portions of the Project before reletting the Premises). Landlord shall not
be
liable, nor shall Tenant's obligations hereunder be diminished because of,
Landlord's failure to relet the Premises or collect rent due in respect of
such
reletting.
25. Tenant's
Remedies/Limitation of Liability.
Landlord shall not be in default hereunder unless Landlord fails to perform
any
of its obligations hereunder within 30 days after written notice from Tenant
specifying such failure (unless such performance will, due to the nature
of the
obligation, require a period of time in excess of 30 days, then after such
period of time as is reasonably necessary). All obligations of Landlord
hereunder shall be construed as covenants, not conditions; and, except as
may be
otherwise expressly provided in this Lease, Tenant may not terminate this
Lease
for breach of Landlord's obligations hereunder. All obligations of Landlord
under this Lease will be binding upon Landlord only during the period of
its
ownership of the Premises and not thereafter. The term "Landlord" in this
Lease
shall mean only the owner, for the time being of the Premises, and in the
event
of the transfer by such owner of its interest in the Premises, such owner
shall
thereupon be released and discharged from all obligations of Landlord thereafter
accruing, but such obligations shall be binding during the Lease Term upon
each
new owner for the duration of such owner's ownership. Any liability of Landlord
under this Lease shall be limited solely to its interest in the Project,
and in
no event shall any personal liability be asserted against Landlord in connection
with this Lease nor shall any recourse be had to any other property or assets
of
Landlord.
26. Waiver
of Jury Trial.
TENANT
AND LANDLORD WAIVE ANY RIGHT TO TRIAL BY JURY OR TO HAVE A JURY PARTICIPATE
IN
RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE,
BETWEEN
LANDLORD AND TENANT ARISING OUT OF THIS LEASE OR ANY OTHER INSTRUMENT, DOCUMENT,
OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS
RELATED HERETO.
-8-
27. Subordination.
This
Lease and Tenant's interest and rights hereunder are and shall be subject
and
subordinate at all times to the lien of any mortgage, now existing or hereafter
created on or against the Project or the Premises, and all amendments,
restatements, renewals, modifications, consolidations, refinancing, assignments
and extensions thereof, without the necessity of any further instrument or
act
on the part of Tenant. Tenant agrees, at the election of the holder of any
such
mortgage, to attorn to any such holder. Tenant agrees upon demand to execute,
acknowledge and deliver such instruments, confirming such subordination and
such
instruments of attornment as shall be requested by any such holder.
Notwithstanding the foregoing, any such holder may at any time subordinate
its
mortgage to this Lease, without Tenant's consent, by notice in writing to
Tenant, and thereupon this Lease shall be deemed prior to such mortgage without
regard to their respective dates of execution, delivery or recording and
in that
event such holder shall have the same rights with respect to this Lease as
though this Lease had been executed prior to the execution, delivery and
recording of such mortgage and had been assigned to such holder. The term
"mortgage" whenever used in this Lease shall be deemed to include deeds of
trust, security assignments and any other encumbrances, and any reference
to the
"holder" of a mortgage shall be deemed to include the beneficiary under a
deed
of trust.
28. Mechanic's
Liens.
Tenant
has no express or implied authority to create or place any lien or encumbrance
of any kind upon, or in any manner to bind the interest of Landlord or Tenant
in, the Premises or to charge the rentals payable hereunder for any claim
in
favor of any person dealing with Tenant, including those who may furnish
materials or perform labor for any construction or repairs. Tenant covenants
and
agrees that it will pay or cause to be paid all sums legally due and payable
by
it on account of any labor performed or materials furnished in connection
with
any work performed on the Premises and that it will save and hold Landlord
harmless from all loss, cost or expense based on or arising out of asserted
claims or liens against the leasehold estate or against the interest of Landlord
in the Premises or under this Lease. Tenant shall give Landlord immediate
written notice of the placing of any lien or encumbrance against the Premises
and cause such lien or encumbrance to be discharged within 30 days of the
filing
or recording thereof; provided, however, Tenant may contest such liens or
encumbrances as long as such contest prevents foreclosure of the lien or
encumbrance and Tenant causes such lien or encumbrance to be bonded or insured
over in a manner satisfactory to Landlord within such 30 day
period.
29. Estoppel
Certificates.
Tenant
agrees, from time to time, within 10 days after request of Landlord, to execute
and deliver to Landlord, or Landlord's designee, any estoppel certificate
requested by Landlord, stating that this Lease is in full force and effect,
the
date to which rent has been paid, that Landlord is not in default hereunder
(or
specifying in detail the nature of Landlord's default), the termination date
of
this Lease and such other matters pertaining to this Lease as may be requested
by Landlord. Tenant's obligation to furnish each estoppel certificate in
a
timely fashion is a material inducement for Landlord's execution of this
Lease.
No cure or grace period provided in this Lease shall apply to Tenant's
obligations to timely deliver an estoppel certificate.
30. Environmental
Requirements.
Except
for Hazardous Material contained in products used by Tenant in de minimis
quantities for ordinary cleaning and office purposes, Tenant shall not permit
or
cause any party to bring any Hazardous Material upon the Premises or transport,
store, use, generate, manufacture or release any Hazardous Material in or
about
the Premises without Landlord's prior written consent. Tenant, at its sole
cost
and expense, shall operate its business in the Premises in strict compliance
with all Environmental Requirements and shall remediate in a manner satisfactory
to Landlord any Hazardous Materials released on or from the Project by Tenant,
its agents, employees, contractors, subtenants or invitees. Tenant shall
complete and certify to disclosure statements as requested by Landlord from
time
to time relating to Tenant's transportation, storage, use, generation,
manufacture or release of Hazardous Materials on the Premises. The term
"Environmental Requirements" means all applicable present and future statutes,
regulations, ordinances, rules, codes, judgments, orders or other similar
enactments of any governmental authority or agency regulating or relating
to
health, safety, or environmental conditions on, under, or about the Premises
or
the environment, including without limitation, the following: the Comprehensive
Environmental Response, Compensation and Liability Act; the Resource
Conservation and Recovery Act; and all state and local counterparts thereto,
and
any regulations or policies promulgated or issued thereunder. The term
"Hazardous Materials" means and includes any substance, material, waste,
pollutant, or contaminant listed or defined as hazardous or toxic, under
any
Environmental Requirements, asbestos and petroleum, including crude oil or
any
fraction thereof, natural gas liquids, liquified natural gas, or synthetic
gas
usable for fuel (or mixtures of natural gas and such synthetic gas). As defined
in Environmental Requirements, Tenant is and shall be deemed to be the
"operator" of Tenant's "facility" and the "owner" of all Hazardous Materials
brought on the Premises by Tenant, its agents, employees, contractors or
invitees, and the wastes, by-products, or residues generated, resulting,
or
produced therefrom.
Tenant
shall indemnify, defend, and hold Landlord harmless from and against any
and all
losses (including, without limitation, diminution in value of the Premises
or
the Project and loss of rental income from the Project), claims, demands,
actions, suits, damages (including, without limitation, punitive damages),
expenses (including, without limitation, remediation, removal, repair,
corrective action, or cleanup expenses), and costs (including, without
limitation, actual attorneys' fees, consultant fees or expert fees and
including, without limitation, removal or management of any asbestos brought
into the property or disturbed in breach of the requirements of this Paragraph
30, regardless of whether such removal or management is required by law)
which
are brought or recoverable against, or suffered or incurred by Landlord as
a
result of any release of Hazardous Materials for which Tenant is obligated
to
remediate as provided above or any other breach of the requirements under
this
Paragraph 30 by Tenant, its agents, employees, contractors, subtenants,
assignees or invitees, regardless of whether Tenant had knowledge of such
noncompliance. The obligations of Tenant under this Paragraph 30 shall survive
any termination of this Lease.
-9-
Landlord
shall have access to, and a right to perform inspections and tests of, the
Premises to determine Tenant's compliance with Environmental Requirements,
its
obligations under this Paragraph 30, or the environmental condition of the
Premises. Access shall be granted to Landlord upon Landlord's prior notice
to
Tenant and at such times so as to minimize, so far as may be reasonable under
the circumstances, any disturbance to Tenant's operations. Such inspections
and
tests shall be conducted at Landlord's expense, unless such inspections or
tests
reveal that Tenant has not complied with any Environmental Requirement, in
which
case Tenant shall reimburse Landlord for the reasonable cost of such inspection
and tests. Landlord's receipt of or satisfaction with any environmental
assessment in no way waives any rights that Landlord holds against
Tenant.
31. Rules
and Regulations.
Tenant
shall, at all times during the Lease Term and any extension thereof, comply
with
all reasonable rules and regulations at any time or from time to time
established by Landlord covering use of the Premises and the Project. The
current rules and regulations are attached hereto. In the event of any conflict
between said rules and regulations and other provisions of this Lease, the
other
terms and provisions of this Lease shall control. Landlord shall not have
any
liability or obligation for the breach of any rules or regulations by other
tenants in the Project.
32. Security
Service.
Tenant
acknowledges and agrees that, while Landlord may patrol the Project, Landlord
is
not providing any security services with respect to the Premises and that
Landlord shall not be liable to Tenant for, and Tenant waives any claim against
Landlord with respect to, any loss by theft or any other damage suffered
or
incurred by Tenant in connection with any unauthorized entry into the Premises
or any other breach of security with respect to the Premises.
33. Force
Majeure.
Landlord shall not be held responsible for delays in the performance of its
obligations hereunder when caused by strikes, lockouts, labor disputes, acts
of
God, inability to obtain labor or materials or reasonable substitutes therefor,
governmental restrictions, governmental regulations, governmental controls,
delay in issuance of permits, enemy or hostile governmental action, civil
commotion, fire or other casualty, and other causes beyond the reasonable
control of Landlord ("Force Majeure").
34. Entire
Agreement.
This
Lease constitutes the complete agreement of Landlord and Tenant with respect
to
the subject matter hereof. No representations, inducements, promises or
agreements, oral or written, have been made by Landlord or Tenant, or anyone
acting on behalf of Landlord or Tenant, which are not contained herein, and
any
prior agreements, promises, negotiations, or representations are superseded
by
this Lease. This Lease may not be amended except by an instrument in writing
signed by both parties hereto.
35. Severability.
If any
clause or provision of this Lease is illegal, invalid or unenforceable under
present or future laws, then and in that event, it is the intention of the
parties hereto that the remainder of this Lease shall not be affected thereby.
It is also the intention of the parties to this Lease that in lieu of each
clause or provision of this Lease that is illegal, invalid or unenforceable,
there be added, as a part of this Lease, a clause or provision as similar
in
terms to such illegal, invalid or unenforceable clause or provision as may
be
possible and be legal, valid and enforceable.
36. Brokers.
Tenant
represents and warrants that it has dealt with no broker, agent or other
person
in connection with this transaction and that no broker, agent or other person
brought about this transaction, other than the broker, if any, set forth
on the
first page of this Lease, and Tenant agrees to indemnify and hold Landlord
harmless from and against any claims by any other broker, agent or other
person
claiming a commission or other form of compensation by virtue of having dealt
with Tenant with regard to this leasing transaction.
37. Miscellaneous. (a) Any
payments or charges due from Tenant to Landlord hereunder shall be considered
rent for all purposes of this Lease.
(b) If
and
when included within the term "Tenant," as used in this instrument, there
is
more than one person, firm or corporation, each shall be jointly and severally
liable for the obligations of Tenant.
(c) All
notices required or permitted to be given under this Lease shall be in writing
and shall be sent by registered or certified mail, return receipt requested,
or
by a reputable national overnight courier service, postage prepaid, or by
hand
delivery addressed to the parties at their addresses below, and with a copy
sent
to Landlord at 0000
Xxxxxxx Xxx, Xxxxxx, Xxxxxxxx 00000.
Either
party may by notice given aforesaid change its address for all subsequent
notices. Except where otherwise expressly provided to the contrary, notice
shall
be deemed given upon delivery.
(d) Except
as
otherwise expressly provided in this Lease or as otherwise required by law,
Landlord retains the absolute right to withhold any consent or
approval.
(e) At
Landlord's request from time to time Tenant shall furnish Landlord with true
and
complete copies of its most recent annual and quarterly financial statements
prepared by Tenant or Tenant's accountants and any other financial information
or summaries that Tenant typically provides to its lenders or
shareholders.
(f) Unless
required by law, neither this Lease nor a memorandum of lease shall be filed
by
or on behalf of Tenant in any public record. Landlord may prepare and file,
and
upon request by Landlord Tenant will execute, a memorandum of
lease.
(g) The
normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation
of this Lease or any exhibits or amendments hereto.
(h) The
submission by Landlord to Tenant of this Lease shall have no binding force
or
effect, shall not constitute an option for the leasing of the Premises, nor
confer any right or impose any obligations upon either party until execution
of
this Lease by both parties.
-10-
(i) Words
of
any gender used in this Lease shall be held and construed to include any
other
gender, and words in the singular number shall be held to include the plural,
unless the context otherwise requires. The captions inserted in this Lease
are
for convenience only and in no way define, limit or otherwise describe the
scope
or intent of this Lease, or any provision hereof, or in any way affect the
interpretation of this Lease.
(j) Any
amount not paid by Tenant within 5 days after its due date in accordance
with
the terms of this Lease shall bear interest from such due date until paid
in
full at the lesser of the highest rate permitted by applicable law or 15
percent
per year. It is expressly the intent of Landlord and Tenant at all times
to
comply with applicable law governing the maximum rate or amount of any interest
payable on or in connection with this Lease. If applicable law is ever
judicially interpreted so as to render usurious any interest called for under
this Lease, or contracted for, charged, taken, reserved, or received with
respect to this Lease, then it is Landlord's and Tenant's express intent
that
all excess amounts theretofore collected by Landlord be credited on the
applicable obligation (or, if the obligation has been or would thereby be
paid
in full, refunded to Tenant), and the provisions of this Lease immediately
shall
be deemed reformed and the amounts thereafter collectible hereunder reduced,
without the necessity of the execution of any new document, so as to comply
with
the applicable law, but so as to permit the recovery of the fullest amount
otherwise called for hereunder.
(k) Construction
and interpretation of this Lease shall be governed by the laws of the state
in
which the Project is located, excluding any principles of conflicts of
laws.
(l) Time
is
of the essence as to the performance of Tenant's obligations under this
Lease.
(m) All
exhibits and addenda attached hereto are hereby incorporated into this Lease
and
made a part hereof. In the event of any conflict between such exhibits or
addenda and the terms of this Lease, such exhibits or addenda shall
control.
(n) In
the
event either party hereto initiates litigation to enforce the terms and
provisions of this Lease, the non-prevailing party in such action shall
reimburse the prevailing party for its reasonable attorney's fees, filing
fees,
and court costs.
38. Landlord's
Lien/Security Interest.
Tenant
hereby grants Landlord a security interest, and this Lease constitutes a
security agreement, within the meaning of and pursuant to the Uniform Commercial
Code of the state in which the Premises are situated as to all of Tenant's
property situated in, or upon, or used in connection with the Premises (except
merchandise sold in the ordinary course of business) as security for all
of
Tenant's obligations hereunder, including, without limitation, the obligation
to
pay rent. Such personalty thus encumbered includes specifically all trade
and
other fixtures for the purpose of this Paragraph and inventory, equipment,
contract rights, accounts receivable and the proceeds thereof. In order to
perfect such security interest, Tenant shall execute such financing statements
and file the same at Tenant's expense at the state and county Uniform Commercial
Code filing offices as often as Landlord in its discretion shall require;
and
Tenant hereby irrevocably appoints Landlord its agent for the purpose of
executing and filing such financing statements on Tenant's behalf as Landlord
shall deem necessary.
39. Limitation
of Liability of Trustees, Shareholders, and Officers of
ProLogis.
Any
obligation or liability whatsoever of ProLogis, a Maryland real estate
investment trust, which may arise at any time under this Lease or any obligation
or liability which may be incurred by it pursuant to any other instrument,
transaction, or undertaking contemplated hereby shall not be personally binding
upon, nor shall resort for the enforcement thereof be had to the property
of,
its trustees, directors, shareholders, officers, employees or agents, regardless
of whether such obligation or liability is in the nature of contract, tort,
or
otherwise.
IN
WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the day
and
year first above written.
TENANT:
|
LANDLORD:
|
||||||
ViewSonic
Corporation, a Delaware corporation
|
CATELLUS
OPERATING LIMITED PARTNERSHIP, a Delaware limited
partnership
|
||||||
By:
|
Palmtree
Acquisition Corporation, a Delaware corporation, its general partner
successor in interest to Catellus Development
Corporation
|
||||||
|
|
|
|
|
|||
By:
|
/s/
Xxxxx X.
Xxxxxx
|
By:
|
/s/
W. Xxxxx
Xxxxxx
|
||||
Name:
|
Xxxxx
X. Xxxxxx
|
Name:
|
W.
Xxxxx Xxxxxx
|
||||
Title:
|
Chief
Financial Officer
|
Title:
|
Senior
Vice President
|
||||
Address:
|
Address:
|
||||||
000
X. Xxxx Xxxxxx Xxxx
|
00000
Xxxxxxx Xxxxxxxxx
|
||||||
|
|
||||||
Xxxx
xx Xxxxxxxx,
XX 00000
|
Xxxxxxx
,XX 00000
|
-11-
Rules
and Regulations
1.
|
The
sidewalk, entries, and driveways of the Project shall not be obstructed
by
Tenant, or its agents, or used by them for any purpose other than
ingress
and egress to and from the
Premises.
|
2.
|
Tenant
shall not place any objects, including antennas, outdoor furniture,
etc.,
in the parking areas, landscaped areas or other areas outside of
its
Premises, or on the roof of the
Project.
|
3.
|
Except
for seeing-eye dogs and small pet birds contained in cages, no
animals
shall be allowed in the offices, halls, or corridors in the
Project.
|
4.
|
Tenant
shall not disturb the occupants of the Project or adjoining buildings
by
the use of any radio or musical instrument or by the making of
loud or
improper noises.
|
5.
|
If
Tenant desires telegraphic, telephonic or other electric connections
in
the Premises, Landlord or its agent will direct the electrician
as to
where and how the wires may be introduced; and, without such direction,
no
boring or cutting of wires will be permitted. Any such installation
or
connection shall be made at Tenant's
expense.
|
6.
|
Tenant
shall not install or operate any steam or gas engine or boiler,
or other
mechanical apparatus in the Premises, except as specifically approved
in
the Lease. The use of oil, gas or inflammable liquids for heating,
lighting or any other purpose is expressly prohibited. Explosives
or other
articles deemed extra hazardous shall not be brought into the Project.
Landlord acknowledges and approves Tenant’s current use of a xxxxxx,
diesel generator and propane tank outside the building and reserves
the
right for Tenant to remove, at Tenant’s sole cost and expense, such
equipment upon termination of lease or vacating of premises, whichever
is
first.
|
7.
|
Parking
any type of recreational vehicles is specifically prohibited on
or about
the Project. Further, parking any type of trucks, trailers or other
vehicles in the Premises is specifically prohibited. Except for
the
overnight parking of operative vehicles, no vehicle of any type
shall be
stored in the parking areas at any time. In the event that a vehicle
is
disabled, it shall be removed within 48 hours. There shall be no
"For
Sale" or other advertising signs on or about any parked vehicle.
All
vehicles shall be parked in the designated parking areas in conformity
with all signs and other markings. All parking will be open parking,
and
no reserved parking, numbering or lettering of individual spaces
will be
permitted except as specified by
Landlord.
|
8.
|
Tenant
shall maintain the Premises free from rodents, insects and other
pests.
|
9.
|
Landlord
reserves the right to exclude or expel from the Project any person
who, in
the judgment of Landlord, is intoxicated or under the influence
of liquor
or drugs or who shall in any manner do any act in violation of
the Rules
and Regulations of the Project.
|
10.
|
Tenant
shall not cause any unnecessary labor by reason of Tenant's carelessness
or indifference in the preservation of good order and cleanliness.
Landlord shall not be responsible to Tenant for any loss of property
on
the Premises, however occurring, or for any damage done to the
effects of
Tenant by the janitors or any other employee or
person.
|
11.
|
Tenant
shall give Landlord prompt notice of any defects in the water,
lawn
sprinkler, sewage, gas pipes, electrical lights and fixtures, heating
apparatus, or any other service equipment affecting the
Premises.
|
12.
|
Tenant
shall not permit storage outside the Premises, including without
limitation, outside storage of trucks and other vehicles, or dumping
of
waste or refuse or permit any harmful materials to be placed in
any
drainage system or sanitary system in or about the
Premises.
|
13.
|
All
moveable trash receptacles provided by the trash disposal firm
for the
Premises must be kept in the trash enclosure areas, if any, provided
for
that purpose.
|
14.
|
No
auction, public or private, will be permitted on the Premises or
the
Project.
|
15.
|
No
awnings shall be placed over the windows in the Premises except
with the
prior written consent of Landlord.
|
16.
|
The
Premises shall not be used for lodging, sleeping or cooking or
for any
immoral or illegal purposes or for any purpose other than that
specified
in the Lease. No gaming devices shall be operated in the
Premises.
|
17.
|
Tenant
shall ascertain from Landlord the maximum amount of electrical
current
which can safely be used in the Premises, taking into account the
capacity
of the electrical wiring in the Project and the Premises and the
needs of
other tenants, and shall not use more than such safe capacity.
Landlord's
consent to the installation of electric equipment shall not relieve
Tenant
from the obligation not to use more electricity than such safe
capacity.
|
-12-
18. |
Tenant
assumes full responsibility for protecting the Premises from theft,
robbery and pilferage.
|
19.
|
Tenant
shall not install or operate on the Premises any machinery or mechanical
devices of a nature not directly related to Tenant's ordinary use
of the
Premises and shall keep all such machinery free of vibration, noise
and
air waves which may be transmitted beyond the
Premises.
|
-13-
ADDENDUM
1
BASE
RENT ADJUSTMENTS
ATTACHED
TO AND A PART OF THE LEASE AGREEMENT
DATED
JANUARY 19, 2007, BETWEEN
CATELLUS
OPERATING LIMITED PARTNERSHIP
and
ViewSonic
Corporation, a Delaware corporation
Base
Rent
shall equal the following amounts for the respective periods set forth
below:
Period
|
Monthly
Base Rent
|
|||
July
1, 2007
|
to
|
August
31, 2007
|
$0.00*
|
|
September
1, 2007
|
to
|
September
30, 2007
|
$29,832.00*
|
|
October
1, 2007
|
to
|
June
30, 2009
|
$127,416.00
|
|
July
1, 2009
|
to
|
June
30, 2011
|
$136,358.00
|
|
July
1, 2011
|
to
|
June
30, 2013
|
$145,299.00
|
|
July
1, 2013
|
to
|
July
31, 2014
|
$154,241.00
|
*
Tenant
shall be responsible for the payment of Operating Expenses for these
periods.
-00-
XXXXXXXX
0
XXX
XX CONTROLLABLE OPERATING EXPENSES
ATTACHED
TO AND A PART OF THE LEASE AGREEMENT
DATED
JANUARY 19, 2007, BETWEEN
CATELLUS
OPERATING LIMITED PARTNERSHIP
and
ViewSonic
Corporation, a Delaware corporation
Tenant
shall not be obligated to pay for Controllable Operating Expenses in any
year to
the extent they have increased by more than Five
percent
(5.000%)
per
annum, compounded annually on a cumulative basis from the first calendar
year
during the Lease term. For purposes of this Addendum, Controllable Operating
Expenses shall mean the following Operating Expenses:
Common
Area Maintenance Fees (CAM) and Property Management Fees
Taxes,
insurance premiums and utility costs shall not be deemed Controllable Operating
Expenses. Controllable Operating Expenses shall be determined on an aggregate
basis and not on an individual basis, and the cap on Controllable Operating
Expenses shall be determined on Operating Expenses as they have been adjusted
for vacancy or usage pursuant to the terms of the Lease.
-15-
ADDENDUM
3
RENEWAL
OPTION
(BASEBALL
ARBITRATION)
ATTACHED
TO AND A PART OF THE LEASE AGREEMENT
DATED
JANUARY 19, 2007, BETWEEN
CATELLUS
OPERATING LIMITED PARTNERSHIP
and
ViewSonic
Corporation, a Delaware corporation
(a) Provided
that as of the time of the giving of the Extension Notice and the Commencement
Date of the Extension Term (as such terms are defined below), (x) Tenant
is the
Tenant originally named herein, (y) Tenant actually occupies all of the
Premises initially demised under this Lease and any space added to the Premises,
and (z) no Event of Default exists, or would exist but for the passage of
time or the giving of notice, or both; then Tenant shall have the right to
extend the Lease Term for an additional term of five (5)
years
(such additional term is hereinafter called the "Extension Term") commencing
on
the day following the expiration of the Lease Term (hereinafter referred
to as
the "Commencement Date of the Extension Term"). Tenant must give Landlord
notice
(hereinafter called the "Extension Notice") of its election to extend the
term
of the Lease Term at least nine (9) months, but not more than twelve (12)
months, prior to the scheduled expiration date of the Lease Term.
(b) The
Base
Rent payable by Tenant to Landlord during the Extension Term shall be the
greater of:
(i) the
Base
Rent in effect on the expiration of the Lease Term (if the Base Rent is stated
as an annual or other periodic rate, adjusted for the length of the Lease
Term),
and
(ii) the
Fair
Market Rent, as defined and determined pursuant to Paragraphs (c), (d), and
(e)
below.
(c) The
term
"Fair Market Rent" shall mean the Base Rent, expressed as an annual rent
per
square foot of floor area, which Landlord would have received from leasing
the
Premises for the Extension Term to an unaffiliated person which is not then
a
tenant in the Project, assuming that such space were to be delivered in "as-is"
condition, and taking into account the rental which such other tenant would
most
likely have paid for such premises, including market escalations, provided
that
Fair Market Rent shall not in any event be less than the Base Rent for the
Premises as of the expiration of the Lease Term. Fair Market Rent shall not
be
reduced by reason of any costs or expenses saved by Landlord by reason of
Landlord's not having to find a new tenant for the Premises (including without
limitation brokerage commissions, cost of improvements necessary to prepare
the
space for such tenant's occupancy, rent concession, or lost rental income
during
any vacancy period). Fair Market Rent means only the rent component defined
as
Base Rent in the Lease and does not include reimbursements and payments by
Tenant to Landlord with respect to operating expenses and other items payable
or
reimbursable by Tenant under the Lease. In addition to its obligation to
pay
Base Rent (as determined herein), Tenant shall continue to pay and reimburse
Landlord as set forth in the Lease with respect to such operating expenses
and
other items with respect to the Premises during the Extension Term. The
arbitration process described below shall be limited to the determination
of the
Base Rent and shall not affect or otherwise reduce or modify the Tenant's
obligation to pay or reimburse Landlord for such operating expenses and other
reimbursable items.
(d) Landlord
shall notify Tenant of its determination of the Fair Market Rent (which shall
be
made in Landlord's sole discretion and shall in any event be not less than
the
Base Rent in effect as of the expiration of the Lease Term) for the Extension
Term, and Tenant shall advise Landlord of any objection within ten (10) days
of
receipt of Landlord's notice. Failure to respond within the ten (10)-day
period
shall constitute Tenant's acceptance of such Fair Market Rent. If Tenant
objects, Landlord and Tenant shall commence negotiations to attempt to agree
upon the Fair Market Rent within thirty (30) days of Landlord's receipt of
Tenant's notice. If the parties cannot agree, each acting in good faith but
without any obligation to agree, then the Lease Term shall not be extended
and
shall terminate on its scheduled termination date and Tenant shall have no
further right hereunder or any remedy by reason of the parties' failure to
agree
unless Tenant or Landlord invokes the arbitration procedure provided below
to
determine the Fair Market Rent.
(e) Arbitration
to determine the Fair Market Rent shall be in accordance with the Real Estate
Valuation Arbitration Rules of the American Arbitration Association. Unless
otherwise required by state law, arbitration shall be conducted in the
metropolitan area where the Project is located by a single arbitrator
unaffiliated with either party. Either party may elect to arbitrate by sending
written notice to the other party and the Regional Office of the American
Arbitration Association within 5 business days after the thirty (30)-day
negotiating period provided in Paragraph (d), invoking the binding arbitration
provisions of this paragraph. Landlord and Tenant shall each submit to the
arbitrator their respective proposal of Fair Market Rent. The arbitrator
must
choose between the Landlord's proposal and the Tenant's proposal and may
not
compromise between the two or select some other amount. Notwithstanding any
other provision herein, the Fair Market Rent determined by the arbitrator
shall
not be less than, and the arbitrator shall have no authority to determine
a Fair
Market Rent less than, the Base Rent in effect as of the scheduled expiration
of
the Lease Term. The cost of the arbitration shall be paid by Landlord if
the
Fair Market Rent is that proposed by Landlord and by Tenant if the Fair Market
Rent is that proposed by Tenant; and shall be borne equally otherwise. If
the
arbitrator has not determined the Fair Market Rent as of the end of the Lease
Term, Tenant shall pay 105 percent of the Base Rent in effect under the Lease
as
of the end of the Lease Term until the Fair Market Rent is determined as
provided herein. Upon such determination, Landlord and Tenant shall make
the
appropriate adjustments to the payments between them.
-16-
(f) The
parties consent to the jurisdiction of any appropriate court to enforce the
arbitration provisions of this Addendum and to enter judgment upon the decision
of the arbitrator.
(g) Except
for the Base Rent as determined above, Tenant's occupancy of the Premises
during
the Extension Term shall be on the same terms and conditions as are in effect
immediately prior to the expiration of the initial Lease Term; provided,
however, Tenant shall have no further right to extend the Lease Term pursuant
to
this addendum or to any allowances, credits or abatements or options to expand,
contract, renew or extend the Lease.
(h) If
Tenant
does not send the Extension Notice within the period set forth in Paragraph
(a),
Tenant's right to extend the Lease Term shall automatically terminate. Time
is
of the essence as to the giving of the Extension Notice and the notice of
Tenant's objection under Paragraph (d).
(i) Landlord
shall have no obligation to refurbish or otherwise improve the Premises for
the
Extension Term. The Premises shall be tendered on the Commencement Date of
the
Extension Term in "as-is" condition.
(j) If
the
Lease is extended for the Extension Term, then Landlord shall prepare and
Tenant
shall execute an amendment to the Lease confirming the extension of the Lease
Term and the other provisions applicable thereto.
(k) If
Tenant
exercises its right to extend the term of the Lease for the Extension Term
pursuant to this Addendum, the term "Lease Term" as used in the Lease, shall
be
construed to include, when practicable, the Extension Term except as provided
in
(g) above.
-17-
ADDENDUM
4
CONSTRUCTION
(TURNKEY)
ATTACHED
TO AND A PART OF THE LEASE AGREEMENT
DATED
JANUARY 19, 2007, BETWEEN
CATELLUS
OPERATING LIMITED PARTNERSHIP
and
ViewSonic
Corporation, a Delaware corporation
(a) Landlord
agrees to furnish or perform at Landlord's sole cost and expense those items
of
construction and those improvements (the "Initial Improvements") specified
below:
1.
The reslurry and restriping and curb painting of the parking lot
2.
The replacement of the fabric awning over the patio area
(b) If
Tenant
shall desire any changes, Tenant shall so advise Landlord in writing and
Landlord shall determine whether such changes can be made in a reasonable
and
feasible manner. Any and all costs of reviewing any requested changes, and
any
and all costs of making any changes to the Initial Improvements which Tenant
may
request and which Landlord may agree to shall be at Tenant's sole cost and
expense and shall be paid to Landlord upon demand and before execution of
the
change order.
(c) Landlord
and Tenant shall meet prior to the construction of the Initial Improvements
and
mutually agree on the striping of the parking lot and aesthetics and quality
of
the awning.
-18-
ADDENDUM
5
HVAC
MAINTENANCE CONTRACT
ATTACHED
TO AND A PART OF THE LEASE AGREEMENT
DATED
JANUARY 19, 2007, BETWEEN
______
CATELLUS
OPERATING LIMITED PARTNERSHIP
and
ViewSonic
Corporation, a Delaware corporation
Paragraph
11, captioned "TENANT REPAIRS," is revised to include the
following:
Tenant
agrees to enter into and maintain through the term of the Lease, a regularly
scheduled preventative maintenance/service contract for servicing all hot
water,
heating and air conditioning systems and equipment within the Premises. Landlord
requires a qualified HVAC contractor perform this work. A certificate must
be
provided to the Landlord upon occupancy of the leased Premises.
The
service contract must become effective within thirty (30) days of occupancy,
and
service visits should be performed on a quarterly basis. Landlord suggests
that
Tenant send the following list to a qualified HVAC contractor to be assured
that
these items are included in the maintenance contract:
1.
|
Adjust
belt tension
|
2.
|
Lubricate
all moving parts, as necessary;
|
3.
|
Inspect
and adjust all temperature and safety
controls;
|
4.
|
Check
refrigeration system for leaks and
operation;
|
5.
|
Check
refrigeration system for moisture;
|
6.
|
Inspect
compressor oil level and crank case
heaters;
|
7.
|
Check
head pressure, suction pressure and oil
pressure;
|
8.
|
Inspect
air filters and replace when
necessary;
|
9.
|
Check
space conditions;
|
10.
|
Check
condensate drains and drain pans and clean, if
necessary;
|
11.
|
Inspect
and adjust all valves;
|
12.
|
Check
and adjust dampers;
|
13.
|
Run
machine through complete cycle.
|
-19-
ADDENDUM
6
MOVE-OUT
CONDITIONS
ATTACHED
TO AND A PART OF THE LEASE AGREEMENT
DATED
JANUARY 19, 2007, BETWEEN
______
CATELLUS
OPERATING LIMITED PARTNERSHIP
and
ViewSonic
Corporation, a Delaware corporation
Per
Paragraph 21, Tenant is obligated to check and address prior to move-out
of the
Premises the following items. Landlord expects to receive the Premises in
a well
maintained condition, with normal wear and tear of certain areas acceptable.
The
following list is designed to assist Tenant in the move-out procedures but
is
not intended to be all inclusive.
1.
|
All
lighting is to be placed into good working order. This includes
replacement of bulbs, ballasts, and lenses as
needed.
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2.
|
All
truck doors and dock levelers should be serviced and placed in
good
operating order. This would include the necessary replacement of
any
dented truck door panels and adjustment of door tension to insure
proper
operation. All door panels which are replaced need to be painted
to match
the Building standard.
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3.
|
All
structural steel columns in the warehouse and office should be
inspected
for damage. Repairs of this nature should be pre-approved by the
Landlord
prior to implementation.
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4.
|
Heating/air-conditioning
systems should be placed in good working order, including the necessary
replacement of any parts to return the unit to a well maintained
condition. This includes warehouse heaters and exhaust fans. Upon
move-out, Landlord will have an exit inspection performed by a
certified
mechanical contractor to determine the
condition.
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5.
|
All
holes in the sheet rock walls should be repaired prior to
move-out.
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6.
|
Facilities
should be returned in a clean condition which would include cleaning
of
the coffee bar, restroom areas, windows, and other portions of
the
space.
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7.
|
The
warehouse should be in broom clean condition with all inventory
and
racking removed. There should be no protrusion of anchors from
the
warehouse floor and all holes should be appropriately patched.
If
machinery/equipment is removed, the electrical lines should be
properly
terminated at the nearest junction
box.
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8.
|
All
exterior windows with cracks or breakage should be
replaced.
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9.
|
The
Tenant shall provide keys for all locks on the Premises, including
front
doors, rear doors, and interior
doors.
|
10.
|
Items
that have been added by the Tenant and affixed to the Building
will remain
the property of Landlord, unless agreed otherwise. This would include
but
is not limited to mini-blinds, air conditioners, electrical, water
heaters, cabinets, flooring, etc. If Landlord notifies Tenant during
its
approval process for Alterations that such Alterations will have
to be
removed at the end of the term, then Landlord retains the right
to have
the Tenant remove these at Tenant’s
expense.
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11.
|
All
electrical systems should be left in a safe condition that conforms
to
code. Bare wires and dangerous installations should be corrected
prior to
move-out.
|
12.
|
All
plumbing fixtures should be in good working order, including the
water
heater. Faucets and toilets should not
leak.
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13.
|
All
dock bumpers must be left in place and well
secured.
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