FIFTH AMENDMENT TO LEASE
THIS FIFTH AMENDMENT TO LEASE (the "Fifth Amendment") is dated as of
December 5, 1996 by and between METROPOLITAN LIFE INSURANCE COMPANY, a New York
corporation ("Landlord") and ADEPT TECHNOLOGY, INC., a California corporation
("Tenant"), with reference to the following facts:
A. Landlord's predecessor in interest and Tenant entered into that certain
Lease dated July 18, 1986 as amended by a First Amendment dated January 14,
1987, a Second Amendment dated June 1, 1987, a Third Amendment dated September
13, 1991 and a Fourth Amendment dated November 7, 1994 (collectively, the
"Original Lease") with respect to certain premises (the "Premises") more
particularly described in the Original Lease.
B. Landlord and Tenant now desire to modify and amend the Original Lease to
reflect, among other provisions, the extension of the term, all as more
particularly set forth below.
NOW THEREFORE, in consideration of the mutual covenants set forth herein
and other good and valuable consideration, the receipt whereof and sufficiency
of which is hereby acknowledged, the parties hereto agree as follows:
1. Scope of Fifth Amendment. Except as expressly provided in this Fifth
Amendment, the Original Lease shall remain in full force and effect. Except as
expressly provided in this Fifth Amendment, the term "Lease" as used in the
Original Lease shall refer to the Original Lease as modified by this Fifth
Amendment. Capitalized terms used in this Fifth Amendment and not otherwise
defined herein shall have the respective meanings set forth in the Original
Lease.
2. Modifications to Original Lease. Effective as of January 1, 1997 (the
"Effective Date") the Original Lease is hereby modified as hereinafter set
forth:
(a) The monthly installment of Rent payable for the Premises from
January 1, 1998 to and including December 31, 1998 shall be Ninety Two Thousand
Four Hundred Forty Eight Dollars and No Cents ($92,448.00) per month; the
monthly installment of Rent payable for the Premises from January 1, 1999 to and
including December 31, 1999 shall be Ninety Seven Thousand Seventy Dollars and
Forty Cents ($97,070.40) per month; and One Hundred One Thousand Six Hundred
Ninety Two and Eighty Cents ($101,692.80) per month for the remaining term of
the Lease, as extended hereby.
(b) The termination date shall be December 31, 2000.
3. Acceptance by Tenant of Premises. Neither Landlord nor Landlord's
representatives have made any representations or promises with respect to the
Premises except as herein expressly set forth. Tenant acknowledges and agrees:
(a) that Tenant has been afforded ample opportunity to inspect the Premises, and
has investigated its condition to the extent Tenant desires to do so, and (b)
that Landlord
has no obligation to remodel or make any repairs, alterations or improvements to
the Premises or remediate any condition therein. The taking of possession of the
Premises by Tenant shall be conclusive evidence, as against Tenant, that Tenant
has accepted the same in its then "AS IS" condition and that the Premises is in
good and satisfactory condition at the time such possession was so taken.
4. Payment of Commission. In connection with this Fifth Amendment, Tenant
acknowledges that it has not used the services of a broker or other real estate
licensee other than Xxxxx & Xxxxx and CPS (the latter is hereinafter referred to
as "Landlord's Broker"). Landlord shall be responsible for the payment of the
commission or fee, if any, owed to the foregoing two brokers pursuant to an
agreement between Landlord and Landlord's Broker. In the event of a claim for
broker's fee, finder's fee, commission or other similar compensation in
connection herewith Tenant and Landlord hereby agree to protect, defend and
indemnify each other against and hold each other harmless from any and all
damages, liabilities, costs, expenses and losses (including, without limitation,
reasonable attorneys' fees and costs) which either may sustain or incur by
reason of such claim. The provisions of this Paragraph 4 shall survive the
termination of this Fifth Amendment.
5. Compliance with Law.
(a) Tenant acknowledges that the Americans with Disabilities Act of
1990 and the Fair Housing Act of 1968 (collectively, as amended and as
supplemented by further laws from time to time, the "Acts") imposes certain
requirements upon the owners, lessees and operators of commercial facilities and
places of public accommodation, including prohibitions on discrimination against
any individual on the basis of disability (which discrimination includes certain
failures to design and construct facilities for first occupancy that are readily
accessible to and usable by individuals with disabilities and certain failures,
when making alterations affecting the usability of a facility, to make the same
in such a manner that such altered portions are readily accessible to and usable
by individuals with disabilities). Accordingly Tenant agrees to take all proper
and necessary action to cause the Premises to be maintained, used and occupied
in compliance with the Acts and, further, to otherwise assume all responsibility
to ensure the Premises' continued compliance with all provisions of the Acts
throughout the Term. Tenant shall, at its sole cost and expense, make all
alterations and improvements necessary to make the Premises comply with the
Americans With disabilities Act (ADA"). Landlord shall, at its sole cost and
expense, make all alterations and improvements necessary to make the Building,
including all Common Areas thereof, comply with the ADA.
(b) Without limiting any of its obligations set forth elsewhere in the
Lease, Tenant covenants and agrees to comply with all laws, rules, regulations
and guidelines now or hereafter made applicable to the Premises by government or
other public authorities respecting the disposal of waste, trash, garbage and
other matter (liquid or solid), generated by Tenant, its employees, agents,
contractors, invitees, licensees, guests and visitors, the disposal of which is
not otherwise the express obligation of the Landlord under the Lease, including,
but not limited to, laws, rules, regulations and guidelines respecting recycling
and other forms of reclamation (all of which are herein collectively referred to
as "Waste Management Requirements"). Tenant covenants and agrees to comply with
all reasonable rules and regulations established by Landlord to enable Landlord
from time to time to comply with Waste
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Management Requirements applicable to Landlord (i) as owner of the Premises and
(ii) in performing Landlord's obligations under the Lease, if any.
6. Option to Extend.
(a) Landlord hereby grants Tenant one (1) option to extend the Term of
the Lease for an additional period of three (3) years (the "Option Term"), as to
all (but not part) of the Premises as such may then exist, upon and subject to
the terms and conditions set forth in this Section 6 (the "Option To Extend").
(b) The Option Term shall commence immediately after the expiration of
the Term of the Lease, as extended hereby. Tenant's hiring of the Premises
during the Option Term shall be upon and subject to the same terms and
conditions contained in the Lease except that (a) the Rent shall be equal to the
"Option Term Base Rent," defined and determined in the manner set forth below;
(b) Tenant shall accept the Premises, the Building and the Project in an "AS IS"
condition without any obligation of Landlord to repaint, remodel, improve or
alter the Premises, Building or Project or to provide Tenant any allowance for
any of the foregoing, and (c) there shall be no further option or right to
extend the Term of the Lease, or any right to renew this Lease during the Option
Term. If Tenant timely and properly exercises the Option To Extend, references
in the Lease to the Term shall be deemed to mean the Option Term unless the
context clearly requires otherwise.
(c) Tenant's election to exercise the Option To Extend must be given to
Landlord in writing no later than six (6) months prior to the expiration of the
Term of the Lease, as extended hereby.
(d) Notwithstanding anything to the contrary contained herein, all
rights of Tenant pursuant to the Option To Extend shall automatically terminate
without notice and shall be of no further force and effect, whether or not
Tenant has timely exercised the option granted herein, if (a) at the time of
exercise of the Option To Extend or at the time of commencement of the Option
Term, there exists a default hereunder, or any act or omission on the part of
Tenant which, with the passage of time or the giving of notice, or both, would
constitute a default under hereunder, or (b) Landlord has given Tenant two (2)
or more notices of the existence of a default hereunder, during the initial Term
of the Lease, as extended hereby, whether or not such default is subsequently
cured, or (c) a late charge has become payable pursuant to the Lease two (2) or
more times during the initial Term of the Lease, as extended hereby, or (d)
Tenant does not occupy all of the Premises at the time of exercise of the Option
To Extend or at the time of commencement of the Option Term. In the event of a
termination of the Option To Extend pursuant to this Section 6, Tenant shall
reimburse Landlord for all cost and expense Landlord incurs in connection with
Tenant's exercise of the Option, including, without limitation, with respect to
any brokerage commissions.
(e) The Option Term Rent for the Premises for the Option Term shall
mean the greater of (a) the Rent payable by Tenant under this Lease for the
twelve (12) month period immediately prior to the commencement of the applicable
Option Term (the "Preceding Base Rent"), or (b) the "Market Rent", which as used
herein shall mean the amount of Rent that Landlord could obtain from a third
party desiring to lease the Premises under a lease containing terms and
conditions substantially
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identical to those of this Lease, including with limitation additional rent
payable by Tenant with respect to Building Costs, Project Costs, Taxes and
Additional Taxes pursuant to the Lease, for the Option Term under market leasing
conditions then existing, and taking into account the following: the length of
term; the size, location, configuration and floor levels of the Premises; the
type and quality of improvements in or amenities available to the Premises,
Building and Project; age and location of the Building and Project; services to
be provided by Landlord or by tenant; the rent, all other monetary payments and
escalations then obtainable for new leases of space comparable to the Premises
in the locality of the Project; and other factors that would be relevant to a
prospective lease by a third party of the Premises for the Option Term in
determining what such party would be willing to pay therefore; but in each
instance disregarding "Tenant Concessions", if any, then being offered to
prospective new tenants of comparable space in the Project and in the locality
of the Project. For purposes of the preceding sentence, the term "Tenant
Concessions" shall include, without limitation, so-called free rent, tenant
improvement allowances, moving allowances and lease takeovers. The determination
of Market Base Rent based upon the foregoing criteria, shall be made by
Landlord, in Landlord's sole discretion. Within thirty (30) days after Tenant's
exercise of the applicable Option To Extend, Landlord shall notify Tenant of
Landlord's determination of Option Term Base Rent for the Premises. If
Landlord's determination of the Option Term Base Rent is greater than the
Preceding Base Rent for the applicable Option Term, and if Tenant, in Tenant's
sole discretion, disagrees with the amount of Option Term Base Rent determined
by Landlord, Tenant may elect to revoke and rescind the exercise of the option
by giving written notice thereof to Landlord within ten (10) days after notice
of Landlord's determination of Option Term Base Rent.
(f) The Option To Extend is personal to Adept Technology, Inc., a
California corporation in existence as of the date hereof and shall not be
transferrable or assignable, by operation of law or otherwise, either in
connection with an assignment of the Lease, or a sublease of all or part of the
Premises, or otherwise. Any purported assignment of the Option To Extend shall
be void and a material breach of this Lease shall constitute a default under
this Lease. Time is of the essence to each and every term and condition of this
Section 6.
7. Waiver. No failure or delay by a party to insist upon the strict
performance of any term, condition or covenant of this Fifth Amendment, or to
exercise any right, power or remedy hereunder shall constitute a waiver of the
same or any other term of this Fifth Amendment or preclude such party from
enforcing or exercising the same or any such other term, conditions, covenant,
right, power or remedy at any later time.
8. California Law. This Fifth Amendment shall be construed and governed by
the laws of the State of California.
9. Authority. This Fifth Amendment shall be binding upon and inure to the
benefit of the parties hereto, their respective heirs, legal representatives,
successors and assigns. Each party hereto and the persons signing below warrant
that the person signing below on such party's behalf is authorized to do so and
to bind such party to the terms of this Fifth Amendment.
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10. Attorney's Fees and Costs. In the event of any action at law or in
equity between the parties hereto to enforce any of the provisions hereof, any
unsuccessful party to such litigation shall pay to the successful party all
costs and expenses, including actual attorneys' fees (including costs and
expenses incurred in connection with all appeals) incurred therein by such
successful party, and such costs, expenses and attorneys' fees may be included
in and as part of such judgment. A successful party shall be any party who is
entitled to recover his costs of suit, whether or not the suit proceeds to final
judgment.
11. Entire Agreement; No Amendment. This Fifth Amendment constitutes the
entire agreement and understanding between the parties herein named with respect
to the subject of this Fifth Amendment and shall supersede all prior written and
oral agreements concerning the subject matter contained herein. This Fifth
Amendment may not be altered, amended, modified or otherwise changed in any
respect whatsoever except by a writing duly executed by authorized
representatives of the parties hereto. Each party acknowledges that it has read
this Fifth Amendment, fully understands all of the terms and conditions of this
Fifth Amendment and hereby executed this Fifth Amendment freely, voluntarily and
with full knowledge of its significance and with and upon advice of counsel.
12. Severability. If any provision of this Fifth Amendment or the
application thereof to any person or circumstances shall be invalid or
unenforceable to any extent, the remainder of this Fifth Amendment and the
application of such provision to other persons or circumstances, other than
those to which it is held invalid, shall not be affected thereby and shall be
enforced to the furthest extent permitted by law, provided that the invalidity
of such provision does not materially affect the benefits accruing to any party
hereto.
13. Counterparts. This Fifth Amendment may be executed in duplicates or
counterparts, or both, and such duplicates or counterparts together shall
constitute but one original of the Fifth Amendment. Each duplicate and
counterpart shall be equally admissible in evidence, and each original shall
fully bind each party who has executed it.
14. Agreement to Perform Necessary Acts. Each party agrees that upon demand
therefor, it shall promptly perform all further acts and execute, acknowledge
and deliver all further instructions, instruments and documents which may be
reasonably necessary or useful to carry out the provisions of this Fifth
Amendment or to evidence, perfect or otherwise effectuate the rights and
remedies relating to this Fifth Amendment.
15. Captions and Headings. The titles or headings of the various paragraphs
hereof are intended solely for convenience of reference and are not intended and
shall not be deemed to or in any way be used to modify, explain or place any
construction upon any of the provisions of this Fifth Amendment.
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IN WITNESS WHEREOF, the undersigned have duly executed this Fifth Amendment
as of the date first above written.
METROPOLITAN LIFE INSURANCE COMPANY,
a New York corporation
By: /s/ Xxxxxx X. Xxxxx
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Print Name: Xxxxxx X. Xxxxx
Its: Assistant Vice President
ADEPT TECHNOLOGY, INC.,
a California corporation
By: /s/ Xxxxx X. Xxxx
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Print Name: Xxxxx X. Xxxx
Its: Vice President, Operations
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SCHEDULE II
ADEPT TECHONOLOGY, INC.
VALUATION AND QUALIFYING ACCOUNTS
(in thousands)
Balance Additions
at Charged to Balance
Beginning Costs and at End
Description of Period Expenses Deductions(1) of Period
------------------------------------------ --------- -------- ------------- ---------
Year ended June 30, 1995:
Allowance for doubtful accounts $240 $305 $ 63 $482
Year ended June 30, 1996:
Allowance for doubtful accounts 482 277 294 465
Year ended June 30, 1997:
Allowance for doubtful accounts 465 129 145 449
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(1) Includes write offs net of recoveries.
