Xxxxxxxx 00
XXXXXXXXX XX. 0
TO LEASE
THIS AMENDMENT NO. 2 is made and entered into this 6th day of July, 1998,
by and between XXXX XXXXXXXXX, Trustee, or his Successor Trustee UTA dated
7/20/77 (XXXX XXXXXXXXX SURVIVOR'S TRUST) (previously known as the "Xxxx
Xxxxxxxxx Separate Property Trust") as amended, and XXXXXXX X. XXXXX, Trustee,
or his Successor Trustee UTA dated 7/20/77 (XXXXXXX X. XXXXX SEPARATE PROPERTY
TRUST) as amended, collectively as LANDLORD, and ADAC LABORATORIES, a California
corporation, as TENANT.
RECITALS
A. WHEREAS, by Lease Agreement dated September 21, 1992 Landlord
leased to Tenant approximately 8,045 PLUS OR MINUS square feet of that
certain 43,401 PLUS OR MINUS square foot building located at 000 Xxxxx Xxxxx,
Xxxxxxxx, Xxxxxxxxxx, the details of which are more particularly set forth in
said September 21, 1992 Lease Agreement, and
B. WHEREAS, said Lease was amended by the Commencement Letter dated
November 23, 1992 which changed the Commencement Date of the Lease from November
1, 1992 to November 23, 1992, and changed the Termination Date from October 31,
1995 to November 30, 1995, and,
C. WHEREAS, said Lease was amended by Amendment No. 1 dated August 1,
1993 which amended the Lease by (i) increasing the square footage of the Leased
Premises by 13,720 square feet (for a total of 21,765 square feet) effective
November 15, 1993, (ii) extended the Term for three years and three months and
(iii) amended the Basic Rent schedule, Aggregate Rent and Security Deposit
accordingly, and,
D. WHEREAS, it is now the desire of the parties hereto to amend the Lease
by (i) extending the Term for seven years, changing the Termination Date from
February 28, 1999 to February 28, 2006, (ii) amending the Basic Rent schedule
and Aggregate Rent accordingly, (iii) increasing the Security Deposit required
under the Lease, (iv) amending the Management Fee charged to Tenant, (vii)
amending Lease Paragraphs 15 ("Property Insurance") and 19 ("Assignment and
Subletting"), (viii) replacing Lease Paragraphs 13 ("Liability Insurance"), 39
("Limitation of Liability") and 49 ("Hazardous Materials"), and (ix) adding a
paragraph ("Authority to Execute") to said Lease Agreement as hereinafter set
forth.
AGREEMENT
NOW THEREFORE, for valuable consideration, receipt of which is hereby
acknowledged, and in consideration of the hereinafter mutual promises, the
parties hereto do agree as follows:
1. TERM OF LEASE: It is agreed between the parties that the Term of said
Lease Agreement shall be extended for an additional seven (7) year period, and
the Lease Termination Date shall be changed from February 28, 1999 to February
28, 2006.
2. BASIC RENTAL FOR EXTENDED TERM OF LEASE: The monthly Basic Rental for
the Extended Term of Lease shall be as follows:
On March 1, 1999, the sum of FORTY THREE THOUSAND FIVE HUNDRED THIRTY AND
NO/100 DOLLARS ($43,530.00) shall be due, and a like sum due on the first day of
each month thereafter through and including February 1, 2000.
On March 1, 2000, the sum of FORTY FIVE THOUSAND SEVEN HUNDRED SIX AND
50/100 DOLLARS ($45,706.50) shall be due, and a like sum due on the first day of
each month thereafter through and including February 1, 2001.
On March 1, 2001, the sum of FORTY SEVEN THOUSAND EIGHT HUNDRED EIGHTY
THREE AND NO/100 DOLLARS ($47,883.00) shall be due, and a like sum due on the
first day of each month thereafter through and including February 1, 2002.
Initial: ______
On March 1, 2002, the sum of FIFTY THOUSAND FIFTY NINE AND 50/100 DOLLARS
($50,059.50) shall be due, and a like sum due on the first day of each month
thereafter through and including February 1, 2003.
On March 1, 2003, the sum of FIFTY TWO THOUSAND TWO HUNDRED THIRTY SIX AND
NO/100 DOLLARS ($52,236.00) shall be due, and a like sum due on the first day of
each month thereafter through and including February 1, 2004.
On March 1, 2004, the sum of FIFTY FOUR THOUSAND FOUR HUNDRED TWELVE AND
50/100 DOLLARS ($54,412.50) shall be due, and a like sum due on the first day of
each month thereafter, through and including February 1, 2005.
On March 1, 2005, the sum of FIFTY SIX THOUSAND FIVE HUNDRED EIGHTY NINE
AND NO/100 DOLLARS ($56,589.00) shall be due, and a like sum due on the first
day of each month thereafter, through and including February 1, 2006.
The Aggregate Basic Rent for the Lease shall be increased by $4,204,998.00
or from $1,580,415.22 to $5,785,413.22.
3. SECURITY DEPOSIT: Tenant's Security Deposit shall be increased by
$86,657.75, or from $26,520.25 to $113,178.00. Tenant shall pay $43,328.88 of
said $86,657.75 increase upon Tenant's execution of this Amendment No. 2. The
remaining $43,328.87 shall be in the form of a Promissory Note due September 1,
1999.
4. MANAGEMENT FEE: Beginning March 1, 1999, Tenant shall pay to Landlord,
in addition to the Basic Rent and Additional Rent, a FIXED monthly management
fee ("Management Fee") equal to three percent (3%) of the Basic Rent due for
each month throughout the remaining Lease Term. Tenant shall remain liable for
the five percent (5%) management fee previously charged against Additional Rent
through February 28, 1999.
5. PROPERTY INSURANCE: Lease Paragraph 15 ("Property Insurance") is
hereby amended to include the following: "Tenant acknowledges that as part of
the cost of insurance policies for the Premises, Tenant is responsible for the
payment of insurance deductibles on insurance claims as they relate to the
Premises".
6. ASSIGNMENT AND SUBLETTING: Lease Paragraph 19 ("Assignment and
Subletting") shall be amended to include the following language:
"A. Notwithstanding the foregoing, Landlord and Tenant agree that it shall
not be unreasonable for Landlord to refuse to consent to a proposed assignment,
sublease or other transfer ("Proposed Transfer") if the Premises or ant other
portion of the Property would become subject to additional or different
Government Requirements as a direct or indirect consequence of the Proposed
Transfer and/or the Proposed Transferee's use and occupancy of the Premises and
the Property. However, Landlord may, in its sole discretion, consent to such a
Proposed Transfer where Landlord is indemnified by Tenant and (i) Subtenant or
(ii) Assignee, in form and substance satisfactory to Landlord's counsel, by
Tenant and/or the Proposed Transferee from and against any and all costs,
expenses, obligations and liability arising out of the Proposed Transfer and/or
the Proposed Transferee's use and occupancy of the Premises and the Property.
B. Any and all sublease agreement(s) between Tenant and any and all
subtenant(s) (which agreements must be consented to by Landlord, pursuant to the
requirements of this Lease) shall contain the following language:
"If Landlord and Tenant jointly and voluntarily elect, for any
reason whatsoever, to terminate the Master Lease prior to the
scheduled Master Lease termination date, then this Sublease (if then
still in effect) shall terminate concurrently with the termination of
the Master Lease. Subtenant expressly acknowledges and agrees that
(1) the voluntary termination of the Master Lease by Landlord and
Tenant and the resulting termination of this Sublease shall not give
Subtenant any right or power to make any legal or equitable claim
against Landlord, including without limitation any claim for
interference with contract or interference with prospective
Initial: ______
economic advantage, and (2) Subtenant hereby waives any and all rights
it may have under law or at equity against Landlord to challenge such
an early termination of the Sublease, and unconditionally releases and
relieves Landlord, and its officers, directors, employees and agents,
from any and all claims, demands, and/or causes of action whatsoever
(collectively, "Claims"), whether such matters are known or unknown,
latent or apparent, suspected or unsuspected, foreseeable or
unforeseeable, which Subtenant may have arising out of or in
connection with any such early termination of this Sublease.
Subtenant knowingly and intentionally waives any and all protection
which is or may be given by Section 1542 of the California Civil Code
which provides as follows: "A general release does not extend to
claims which the creditor does not know or suspect to exist in his
favor at the time of executing the release, which if known by him must
have materially affected his settlement with debtor.
The term of this Sublease is therefore subject to early
termination. Subtenant's initials here below evidence (a) Subtenant's
consideration of and agreement to this early termination provision,
(b) Subtenant's acknowledgment that, in determining the net benefits
to be derived by Subtenant under the terms of this Sublease, Subtenant
has anticipated the potential for early termination, and (c)
Subtenant's agreement to the general waiver and release of Claims
above.
Initials: __________ Initials:__________"
Subtenant Tenant
7. LIABILITY INSURANCE: Lease Paragraph 13 ("Liability Insurance") shall
be deleted and replaced in its entirety by the following:
"13. LIABILITY INSURANCE: Tenant, at Tenant's expense, agrees to
keep in force during the Term of this Lease a policy of commercial general
liability insurance with combined single limit coverage of not less than
Two Million Dollars ($2,000,000) per occurrence for bodily injury and
property damage occurring in, on or about the Premises, including parking
and landscaped areas. Such insurance shall be primary and noncontributory
as respects any insurance carried by Landlord. The policy or polices
effecting such insurance shall name Landlord as additional insureds, and
shall insure any liability of Landlord, contingent or otherwise, as
respects acts or omissions of Tenant, its agents, employees or invitees or
otherwise by any conduct or transactions of any of said persons in or about
or concerning the Premises, including any failure of Tenant to observe or
perform any of its obligations hereunder; shall be issued by an insurance
company admitted to transact business in the State of California; and shall
provide that the insurance effected thereby shall not be canceled, except
upon thirty (30) days' prior written notice to Landlord. A certificate of
insurance of said policy shall be delivered to Landlord. If, during the
Term of this Lease, in the considered opinion of Landlord's Lender,
insurance advisor, or counsel, the amount of insurance described in this
Paragraph 13 is not adequate, Tenant agrees to increase said coverage to
such reasonable amount as Landlord's Lender, insurance advisor, or counsel
shall deem adequate."
8. LIMITATION OF LIABILITY: Lease Paragraph 39 ("Limitation of
Liability") shall be deleted and replaced in its entirety by the following:
"39. LIMITATION OF LIABILITY In consideration of the benefits
accruing hereunder, Tenant and all successors and assigns covenant and
agree that, in the event of any actual or alleged failure, breach or
default hereunder by Landlord:
(i) the sole and exclusive remedy shall be against Landlord's interest in
the Premises leased herein;
(ii) no partner of Landlord shall be sued or named as a party in any suit
or action (except as may be necessary to secure jurisdiction of the
partnership);
Initial: ______
(iii) no service of process shall be made against any partner of Landlord
(except as may be necessary to secure jurisdiction of the partnership);
(iv) no partner of Landlord shall be required to answer or otherwise plead
to any service of process;
(v) no judgment will be taken against any partner of Landlord;
(vi) any judgment taken against any partner of Landlord may be vacated and
set aside at any time without hearing;
(vii) no writ of execution will ever be levied against the assets of any
partner of Landlord;
(viii) these covenants and agreements are enforceable both by Landlord and
also by any partner of Landlord.
Tenant agrees that each of the foregoing covenants and agreements
shall be applicable to any covenant or agreement either expressly contained
in this Lease or imposed by statute or at common law."
9. HAZARDOUS MATERIALS: Lease Paragraph 49 ("Hazardous Materials")
shall be deleted in its entirety and replaced with the following:
"49. HAZARDOUS MATERIALS: Landlord and Tenant agree as follows with
respect to the existence or use of "Hazardous Materials" (as defined
herein) on, in, under or about the Premises and real property located
beneath said Premises and the common areas of the Complex (hereinafter
collectively referred to as the "Property"):
A. As used herein, the term "Hazardous Materials" shall mean
any material, waste, chemical, mixture or byproduct which is or
hereafter is defined, listed or designated under Environmental Laws
(defined below) as a pollutant, or as a contaminant, or as a toxic or
hazardous substance, waste or material, or any other unwholesome,
hazardous, toxic, biohazardous, or radioactive material, waste,
chemical, mixture or byproduct, or which is listed, regulated or
restricted by any Environmental Law (including, without limitation,
petroleum hydrocarbons or any distillates or derivatives or fractions
thereof, polychlorinated biphenyls, or asbestos). As used herein, the
term "Environmental Laws" shall mean any applicable Federal, State of
California or local government law (including common law), statute,
regulation, rule, ordinance, permit, license, order, requirement,
agreement, or approval, or any determination, judgment, directive, or
order of any executive or judicial authority at any level of Federal,
State of California or local government (whether now existing or
subsequently adopted or promulgated) relating to pollution or the
protection of the environment, ecology, natural resources, or public
health and safety.
B. Tenant shall obtain Landlord's written consent, which may be
withheld in Landlord's discretion, prior to the occurrence of any Tenant's
Hazardous Materials Activities (defined below); provided, however, that
Landlord's consent shall not be required for normal use in compliance with
applicable Environmental Laws of customary household and office supplies
(Tenant shall first provide Landlord with a list of said materials use),
such as mild cleaners, lubricants and copier toner. As used herein, the
term "Tenant's Hazardous Materials Activities" shall mean any and all use,
handling, generation, storage, disposal, treatment, transportation,
discharge, or emission of any Hazardous Materials on, in, beneath, to,
from, at or about the Property, in connection with Tenant's use of the
Property, or by Tenant or by any of Tenant's agents, employees,
contractors, vendors, invitees, visitors or its future subtenants or
assignees. Tenant agrees that any and all Tenant's Hazardous Materials
Activities shall be conducted in strict, full compliance with applicable
Environmental Laws at Tenant's expense, and shall not result in any
contamination of the Property or the environment. Tenant agrees to provide
Landlord with prompt written notice of any spill or release of Hazardous
Materials at the Property during the term of the Lease of which Tenant
becomes aware, and further agrees to provide Landlord with prompt written
notice of any violation of Environmental Laws in connection with Tenant's
Hazardous Materials Activities of which Tenant becomes aware. If Tenant's
Hazardous Materials Activities involve Hazardous Materials other than
normal use of customary household and office supplies, Tenant also agrees
at Tenant's expense: (i) to install such Hazardous Materials
Initial: ______
monitoring, storage and containment devices as Landlord reasonably deems
necessary (Landlord shall have no obligation to evaluate the need for any
such installation or to require any such installation); (ii) provide
Landlord with a written inventory of such HazardousMaterials, including an
update of same each year upon the anniversary date of the Commencement Date
of the Lease ("Anniversary Date"); and (iii) on each Anniversary Date, to
retain a qualified environmental consultant, acceptable to Landlord, to
evaluate whether Tenant is in compliance with all applicable Environmental
Laws with respect to Tenant's Hazardous Materials Activities. Tenant, at
its expense, shall submit to Landlord a report from such environmental
consultant which discusses the environmental consultant's findings within
two (2) months of each Anniversary Date. Tenant, at its expense, shall
promptly undertake and complete any and all steps necessary, and in full
compliance with applicable Environmental Laws, to fully correct any and all
problems or deficiencies identified by the environmental consultant, and
promptly provide Landlord with documentation of all such corrections.
C. Prior to termination or expiration of the Lease, Tenant, at its
expense, shall (i) properly remove from the Property all Hazardous
Materials which come to be located at the Property in connection with
Tenant's Hazardous Materials Activities, and (ii) fully comply with and
complete all facility closure requirements of applicable Environmental Laws
regarding Tenant's Hazardous Materials Activities, including but not
limited to (x) properly restoring and repairing the Property to the extent
damaged by such closure activities, and (y) obtaining from the local Fire
Department or other appropriate governmental authority with jurisdiction a
written concurrence that closure has been completed in compliance with
applicable Environmental Laws. Tenant shall promptly provide Landlord with
copies of any claims, notices, work plans, data and reports prepared,
received or submitted in connection with any such closure activities.
D. If Landlord, in its sole discretion, believes that the Property
has become contaminated as a result of Tenant's Hazardous Materials
Activities, Landlord in addition to any other rights it may have under this
Lease or under Environmental Laws or other laws, may enter upon the
Property and conduct inspection, sampling and analysis, including but not
limited to obtaining and analyzing samples of soil and groundwater, for the
purpose of determining the nature and extent of such contamination. Tenant
shall promptly reimburse Landlord for the costs of such an investigation,
including but not limited to reasonable attorneys' fees Landlord incurs
with respect to such investigation, that discloses Hazardous Materials
contamination for which Tenant is liable under this Lease. Notwithstanding
the above, Landlord may, at its option and in its sole and absolute
discretion, choose to perform remediation and obtain reimbursement for
cleanup costs as set forth herein from Tenant. Any cleanup costs incurred
by Landlord as the result of Tenant's Hazardous Materials Activities shall
be reimbursed by Tenant within thirty (30) days of presentation of written
documentation of the expense to Tenant by Landlord. Such reimbursable
costs shall include, but not be limited to, any reasonable consultant and
attorney fees incurred by Landlord. Tenant shall take all actions
necessary to preserve any claims it has against third parties, including,
but not limited to, its insurers, for claims related to its operation,
management of Hazardous Materials or contamination of the Property. Except
as may be required of Tenant by applicable Environmental Laws, Tenant shall
not perform any sampling, testing, or drilling to identify the presence of
any Hazardous Materials at the Property, without Landlord's prior written
consent which may be withheld in Landlord's discretion. Tenant shall
promptly provide Landlord with copies of any claims, notices, work plans,
data and reports prepared, received or submitted in connection with any
sampling, testing or drilling performed pursuant to the preceding
sentence.
E. Tenant shall indemnify, defend (with legal counsel acceptable to
Landlord, whose consent shall not unreasonably be withheld) and hold
harmless Landlord, its employees, assigns, successors,
successors-in-interest, agents and representatives from and against any and
all claims (including but not limited to third party claims from a private
party or a government authority), liabilities, obligations, losses, causes
of action, demands, governmental proceedings or directives, fines,
penalties, expenses, costs (including but not limited to reasonable
attorneys', consultants' and other experts' fees and costs), and damages,
which arise from or relate to: (i) Tenant's Hazardous Materials
Activities; (ii) releases or discharges of Hazardous Materials at the
Property, which occur
Initial: ______
during the Term of this Lease, (iii) any Hazardous Materials contamination
caused by Tenant prior to the Commencement Date of the Lease; or (iv) the
breach of any obligation of Tenant under this Paragraph 49 (collectively,
"Tenant's Environmental Indemnification"). Tenant's Environmental
Indemnification shall include but is not limited to the obligation to
promptly and fully reimburse Landlord for losses in or reductions to rental
income, and diminution in fair market value of the Property. Tenant's
Environmental Indemnification shall further include but is not limited to
the obligation to diligently and properly implement to completion, at
Tenant's expense, any and all environmental investigation, removal,
remediation, monitoring, reporting, closure activities, or other
environmental response action (collectively, "Response Actions"). Tenant
shall promptly provide Landlord with copies of any claims, notices, work
plans, data and reports prepared, received or submitted in connection with
any Response Actions.
It is agreed that the Tenant's responsibilities related to Hazardous
Materials will survive the expiration or termination of this Lease and that
Landlord may obtain specific performance of Tenant's responsibilities under
this Paragraph 49."
10. AUTHORITY TO EXECUTE. The parties executing this Agreement hereby
warrant and represent that they are properly authorized to execute this
Agreement and bind the parties on behalf of whom they execute this Agreement
and to all of the terms, covenants and conditions of this Agreement as they
relate to the respective parties hereto.
EXCEPT AS MODIFIED HEREIN, all other terms, covenants, and conditions of
said September 21, 1992 Lease Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment No. 2
to Lease as of the day and year last written below.
LANDLORD: TENANT:
XXXX XXXXXXXXX SURVIVOR'S TRUST ADAC LABORATORIES
a California corporation
By By
--------------------------------- ----------------------------------
Xxxx Xxxxxxxxx, Trustee
Date: ------------------------------------
----------------------- Print or Type Name
XXXXXXX X. XXXXX SEPARATE Title:
PROPERTY TRUST -----------------------------
By Date:
-------------------------------- -----------------------------
Xxxxxxx X. Xxxxx, Trustee
Date:
------------------------
Initial: ______
Xxxxxxxx 00
XXXXXXXXX XX. 0
TO LEASE
THIS AMENDMENT NO. 1 is made and entered into this 6th day of July, 1998,
by and between XXXX XXXXXXXXX, Trustee, or his Successor Trustee UTA dated
7/20/77 (XXXX XXXXXXXXX SURVIVOR'S TRUST) (previously known as the "Xxxx
Xxxxxxxxx Separate Property Trust") as amended, and XXXXXXX X. XXXXX, Trustee,
or his Successor Trustee UTA dated 7/20/77 (XXXXXXX X. XXXXX SEPARATE PROPERTY
TRUST) as amended, collectively as LANDLORD, and ADAC LABORATORIES, a California
corporation, as TENANT.
RECITALS
A. WHEREAS, by Lease Agreement dated December 6, 1993 Landlord leased
to Tenant approximately 13,786 PLUS OR MINUS square feet of that certain
52,812 PLUS OR MINUS square foot building located at 000 Xxxxx Xxxxx,
Xxxxxxxx, Xxxxxxxxxx, the details of which are more particularly set forth in
said December 6, 1993 Lease Agreement, and
B. WHEREAS, it is now the desire of the parties hereto to amend the Lease
by (i) extending the Term for seven years, changing the Termination Date from
February 28, 1999 to February 28, 2006, (ii) amending the Basic Rent schedule
and Aggregate Rent accordingly, (iii) increasing the Security Deposit required
under the Lease, (iv) amending the Management Fee charged to Tenant, (vii)
amending Lease Paragraphs 15 ("Property Insurance") and 19 ("Assignment and
Subletting"), (viii) replacing Lease Paragraphs 13 ("Liability Insurance"), 39
("Limitation of Liability") and 49 ("Hazardous Materials"), (ix) deleting Lease
Paragraph 48 ("Option to Lease Additional Space") and (x) adding a paragraph
("Authority to Execute") to said Lease Agreement as hereinafter set forth.
AGREEMENT
NOW THEREFORE, for valuable consideration, receipt of which is hereby
acknowledged, and in consideration of the hereinafter mutual promises, the
parties hereto do agree as follows:
1. TERM OF LEASE: It is agreed between the parties that the Term of said
Lease Agreement shall be extended for an additional seven (7) year period, and
the Lease Termination Date shall be changed from February 28, 1999 to February
28, 2006.
2. BASIC RENTAL FOR EXTENDED TERM OF LEASE: The monthly Basic Rental for
the Extended Term of Lease shall be as follows:
On March 1, 1999, the sum of TWENTY SEVEN THOUSAND FIVE HUNDRED SEVENTY TWO
AND NO/100 DOLLARS ($27,572.00) shall be due, and a like sum due on the first
day of each month thereafter through and including February 1, 2000.
On March 1, 2000, the sum of TWENTY EIGHT THOUSAND NINE HUNDRED FIFTY AND
60/100 DOLLARS ($28,950.60) shall be due, and a like sum due on the first day of
each month thereafter through and including February 1, 2001.
On March 1, 2001, the sum of THIRTY THOUSAND THREE HUNDRED TWENTY NINE AND
20/100 DOLLARS ($30,329.20) shall be due, and a like sum due on the first day of
each month thereafter through and including February 1, 2002.
On March 1, 2002, the sum of THIRTY ONE THOUSAND SEVEN HUNDRED SEVEN AND
80/100 DOLLARS ($31,707.80) shall be due, and a like sum due on the first day of
each month thereafter through and including February 1, 2003.
On March 1, 2003, the sum of THIRTY THREE THOUSAND EIGHTY SIX AND 40/100
DOLLARS ($33,086.40) shall be due, and a like sum due on the first day of each
month thereafter through and including February 1, 2004.
On March 1, 2004, the sum of THIRTY FOUR THOUSAND FOUR HUNDRED SIXTY
Initial: _________
FIVE AND NO/100 DOLLARS ($34,465.00) shall be due, and a like sum due on the
first day of each month thereafter, through and including February 1, 2005.
On March 1, 2005, the sum of THIRTY FIVE THOUSAND EIGHT HUNDRED FORTY THREE
AND 60/100 DOLLARS ($35,843.60) shall be due, and a like sum due on the first
day of each month thereafter, through and including February 1, 2006.
The Aggregate Basic Rent for the Lease shall be increased by $2,663,455.20
or from $894,133.28 to $3,557,588.48.
3. SECURITY DEPOSIT: Tenant's Security Deposit shall be increased by
$38,600.80, or from $33,086.40 to $71,687.20. Tenant shall pay $19,300.40 of
said $38,600.80 increase upon Tenant's execution of this Amendment No. 1. The
remaining $19,300.40 shall be in the form of a Promissory Note due September 1,
1999.
4. MANAGEMENT FEE: Beginning March 1, 1999, Tenant shall pay to Landlord,
in addition to the Basic Rent and Additional Rent, a FIXED monthly management
fee ("Management Fee") equal to two percent (2%) of the Basic Rent due for each
month throughout the remaining Lease Term. Tenant shall remain liable for the
five percent (5%) management fee previously charged against Additional Rent
through February 28, 1999.
5. PROPERTY INSURANCE: Lease Paragraph 15 ("Property Insurance") is
hereby amended to include the following: "Tenant acknowledges that as part of
the cost of insurance policies for the Premises, Tenant is responsible for the
payment of insurance deductibles on insurance claims as they relate to the
Premises".
6. ASSIGNMENT AND SUBLETTING: Lease Paragraph 19 ("Assignment and
Subletting") shall be amended to include the following language:
"A. Notwithstanding the foregoing, Landlord and Tenant agree that it shall
not be unreasonable for Landlord to refuse to consent to a proposed assignment,
sublease or other transfer ("Proposed Transfer") if the Premises or ant other
portion of the Property would become subject to additional or different
Government Requirements as a direct or indirect consequence of the Proposed
Transfer and/or the Proposed Transferee's use and occupancy of the Premises and
the Property. However, Landlord may, in its sole discretion, consent to such a
Proposed Transfer where Landlord is indemnified by Tenant and (i) Subtenant or
(ii) Assignee, in form and substance satisfactory to Landlord's counsel, by
Tenant and/or the Proposed Transferee from and against any and all costs,
expenses, obligations and liability arising out of the Proposed Transfer and/or
the Proposed Transferee's use and occupancy of the Premises and the Property.
B. Any and all sublease agreement(s) between Tenant and any and all
subtenant(s) (which agreements must be consented to by Landlord, pursuant to the
requirements of this Lease) shall contain the following language:
"If Landlord and Tenant jointly and voluntarily elect, for any reason
whatsoever, to terminate the Master Lease prior to the scheduled Master
Lease termination date, then this Sublease (if then still in effect) shall
terminate concurrently with the termination of the Master Lease. Subtenant
expressly acknowledges and agrees that (1) the voluntary termination of the
Master Lease by Landlord and Tenant and the resulting termination of this
Sublease shall not give Subtenant any right or power to make any legal or
equitable claim against Landlord, including without limitation any claim
for interference with contract or interference with prospective economic
advantage, and (2) Subtenant hereby waives any and all rights it may have
under law or at equity against Landlord to challenge such an early
termination of the Sublease, and unconditionally releases and relieves
Landlord, and its officers, directors, employees and agents, from any and
all claims, demands, and/or causes of action whatsoever (collectively,
"Claims"), whether such matters are known or unknown, latent or apparent,
suspected or unsuspected, foreseeable or unforeseeable, which Subtenant may
have arising out of or in connection with any such early termination of
this Sublease. Subtenant knowingly and intentionally waives any and all
protection which is or may be given by Section 1542 of the California Civil
Code
Initial: _________
which provides as follows: "A general release does not extend to claims
which the creditor does not know or suspect to exist in his favor at the
time of executing the release, which if known by him must have materially
affected his settlement with debtor.
The term of this Sublease is therefore subject to early termination.
Subtenant's initials here below evidence (a) Subtenant's consideration of
and agreement to this early termination provision, (b) Subtenant's
acknowledgment that, in determining the net benefits to be derived by
Subtenant under the terms of this Sublease, Subtenant has anticipated the
potential for early termination, and (c) Subtenant's agreement to the
general waiver and release of Claims above.
Initials: __________ Initials:__________"
Subtenant Tenant
7. LIABILITY INSURANCE: Lease Paragraph 13 ("Liability Insurance") shall
be deleted and replaced in its entirety by the following:
"13. LIABILITY INSURANCE: Tenant, at Tenant's expense, agrees to
keep in force during the Term of this Lease a policy of commercial general
liability insurance with combined single limit coverage of not less than
Two Million Dollars ($2,000,000) per occurrence for bodily injury and
property damage occurring in, on or about the Premises, including parking
and landscaped areas. Such insurance shall be primary and noncontributory
as respects any insurance carried by Landlord. The policy or polices
effecting such insurance shall name Landlord as additional insureds, and
shall insure any liability of Landlord, contingent or otherwise, as
respects acts or omissions of Tenant, its agents, employees or invitees or
otherwise by any conduct or transactions of any of said persons in or about
or concerning the Premises, including any failure of Tenant to observe or
perform any of its obligations hereunder; shall be issued by an insurance
company admitted to transact business in the State of California; and shall
provide that the insurance effected thereby shall not be canceled, except
upon thirty (30) days' prior written notice to Landlord. A certificate of
insurance of said policy shall be delivered to Landlord. If, during the
Term of this Lease, in the considered opinion of Landlord's Lender,
insurance advisor, or counsel, the amount of insurance described in this
Paragraph 13 is not adequate, Tenant agrees to increase said coverage to
such reasonable amount as Landlord's Lender, insurance advisor, or counsel
shall deem adequate."
8. LIMITATION OF LIABILITY: Lease Paragraph 39 ("Limitation of
Liability") shall be deleted and replaced in its entirety by the following:
"39. LIMITATION OF LIABILITY In consideration of the benefits
accruing hereunder, Tenant and all successors and assigns covenant and
agree that, in the event of any actual or alleged failure, breach or
default hereunder by Landlord:
(i) the sole and exclusive remedy shall be against Landlord's interest in
the Premises leased herein;
(ii) no partner of Landlord shall be sued or named as a party in any suit
or action (except as may be necessary to secure jurisdiction of the
partnership);
(iii) no service of process shall be made against any partner of Landlord
(except as may be necessary to secure jurisdiction of the partnership);
(iv) no partner of Landlord shall be required to answer or otherwise plead
to any service of process;
(v) no judgment will be taken against any partner of Landlord;
(vi) any judgment taken against any partner of Landlord may be vacated and
set aside at any time without hearing;
(vii) no writ of execution will ever be levied against the assets of any
partner of Landlord;
(viii) these covenants and agreements are enforceable both by Landlord and
also by any partner of Landlord.
Initial: _________
partner of Landlord.
Tenant agrees that each of the foregoing covenants and agreements shall be
applicable to any covenant or agreement either expressly contained in this Lease
or imposed by statute or at common law."
9. HAZARDOUS MATERIALS: Lease Paragraph 49 ("Hazardous Materials") shall
be deleted in its entirety and replaced with the following:
"49. HAZARDOUS MATERIALS: Landlord and Tenant agree as follows
with respect to the existence or use of "Hazardous Materials" (as
defined herein) on, in, under or about the Premises and real property
located beneath said Premises and the common areas of the Complex
(hereinafter collectively referred to as the "Property"):
A. As used herein, the term "Hazardous Materials" shall mean
any material, waste, chemical, mixture or byproduct which is or
hereafter is defined, listed or designated under Environmental Laws
(defined below) as a pollutant, or as a contaminant, or as a toxic or
hazardous substance, waste or material, or any other unwholesome,
hazardous, toxic, biohazardous, or radioactive material, waste,
chemical, mixture or byproduct, or which is listed, regulated or
restricted by any Environmental Law (including, without limitation,
petroleum hydrocarbons or any distillates or derivatives or fractions
thereof, polychlorinated biphenyls, or asbestos). As used herein, the
term "Environmental Laws" shall mean any applicable Federal, State of
California or local government law (including common law), statute,
regulation, rule, ordinance, permit, license, order, requirement,
agreement, or approval, or any determination, judgment, directive, or
order of any executive or judicial authority at any level of Federal,
State of California or local government (whether now existing or
subsequently adopted or promulgated) relating to pollution or the
protection of the environment, ecology, natural resources, or public
health and safety.
B. Tenant shall obtain Landlord's written consent, which may be withheld
in Landlord's discretion, prior to the occurrence of any Tenant's Hazardous
Materials Activities (defined below); provided, however, that Landlord's consent
shall not be required for normal use in compliance with applicable Environmental
Laws of customary household and office supplies (Tenant shall first provide
Landlord with a list of said materials use), such as mild cleaners, lubricants
and copier toner. As used herein, the term "Tenant's Hazardous Materials
Activities" shall mean any and all use, handling, generation, storage, disposal,
treatment, transportation, discharge, or emission of any Hazardous Materials on,
in, beneath, to, from, at or about the Property, in connection with Tenant's use
of the Property, or by Tenant or by any of Tenant's agents, employees,
contractors, vendors, invitees, visitors or its future subtenants or assignees.
Tenant agrees that any and all Tenant's Hazardous Materials Activities shall be
conducted in strict, full compliance with applicable Environmental Laws at
Tenant's expense, and shall not result in any contamination of the Property or
the environment. Tenant agrees to provide Landlord with prompt written notice
of any spill or release of Hazardous Materials at the Property during the term
of the Lease of which Tenant becomes aware, and further agrees to provide
Landlord with prompt written notice of any violation of Environmental Laws in
connection with Tenant's Hazardous Materials Activities of which Tenant becomes
aware. If Tenant's Hazardous Materials Activities involve Hazardous Materials
other than normal use of customary household and office supplies, Tenant also
agrees at Tenant's expense: (i) to install such Hazardous Materials monitoring,
storage and containment devices as Landlord reasonably deems necessary (Landlord
shall have no obligation to evaluate the need for any such installation or to
require any such installation); (ii) provide Landlord with a written inventory
of such HazardousMaterials, including an update of same each year upon the
anniversary date of the Commencement Date of the Lease ("Anniversary Date"); and
(iii) on each Anniversary Date, to retain a qualified environmental consultant,
acceptable to Landlord, to evaluate whether Tenant is in compliance with all
applicable Environmental Laws with respect to Tenant's Hazardous Materials
Activities. Tenant, at its expense, shall submit to Landlord a report from such
environmental consultant which discusses the environmental consultant's findings
within two (2) months of each Anniversary Date.
Initial: _________
Tenant, at its expense, shall promptly undertake and complete any and all
steps necessary, and in full compliance with applicable Environmental Laws,
to fully correct any and all problems or deficiencies identified by the
environmental consultant, and promptly provide Landlord with documentation
of all such corrections.
C. Prior to termination or expiration of the Lease, Tenant, at its
expense, shall (i) properly remove from the Property all Hazardous
Materials which come to be located at the Property in connection with
Tenant's Hazardous Materials Activities, and (ii) fully comply with and
complete all facility closure requirements of applicable Environmental Laws
regarding Tenant's Hazardous Materials Activities, including but not
limited to (x) properly restoring and repairing the Property to the extent
damaged by such closure activities, and (y) obtaining from the local Fire
Department or other appropriate governmental authority with jurisdiction a
written concurrence that closure has been completed in compliance with
applicable Environmental Laws. Tenant shall promptly provide Landlord with
copies of any claims, notices, work plans, data and reports prepared,
received or submitted in connection with any such closure activities.
D. If Landlord, in its sole discretion, believes that the Property
has become contaminated as a result of Tenant's Hazardous Materials
Activities, Landlord in addition to any other rights it may have under this
Lease or under Environmental Laws or other laws, may enter upon the
Property and conduct inspection, sampling and analysis, including but not
limited to obtaining and analyzing samples of soil and groundwater, for the
purpose of determining the nature and extent of such contamination. Tenant
shall promptly reimburse Landlord for the costs of such an investigation,
including but not limited to reasonable attorneys' fees Landlord incurs
with respect to such investigation, that discloses Hazardous Materials
contamination for which Tenant is liable under this Lease. Notwithstanding
the above, Landlord may, at its option and in its sole and absolute
discretion, choose to perform remediation and obtain reimbursement for
cleanup costs as set forth herein from Tenant. Any cleanup costs incurred
by Landlord as the result of Tenant's Hazardous Materials Activities shall
be reimbursed by Tenant within thirty (30) days of presentation of written
documentation of the expense to Tenant by Landlord. Such reimbursable
costs shall include, but not be limited to, any reasonable consultant and
attorney fees incurred by Landlord. Tenant shall take all actions
necessary to preserve any claims it has against third parties, including,
but not limited to, its insurers, for claims related to its operation,
management of Hazardous Materials or contamination of the Property. Except
as may be required of Tenant by applicable Environmental Laws, Tenant shall
not perform any sampling, testing, or drilling to identify the presence of
any Hazardous Materials at the Property, without Landlord's prior written
consent which may be withheld in Landlord's discretion. Tenant shall
promptly provide Landlord with copies of any claims, notices, work plans,
data and reports prepared, received or submitted in connection with any
sampling, testin or drilling performed pursuant to the preceding sentence.
E. Tenant shall indemnify, defend (with legal counsel acceptable to
Landlord, whose consent shall not unreasonably be withheld) and hold
harmless Landlord, its employees, assigns, successors,
successors-in-interest, agents and representatives from and against any and
all claims (including but not limited to third party claims from a private
party or a government authority), liabilities, obligations, losses, causes
of action, demands, governmental proceedings or directives, fines,
penalties, expenses, costs (including but not limited to reasonable
attorneys', consultants' and other experts' fees and costs), and damages,
which arise from or relate to: (i) Tenant's Hazardous Materials
Activities; (ii) releases or discharges of Hazardous Materials at the
Property, which occur during the Term of this Lease, (iii) any Hazardous
Materials contamination caused by Tenant prior to the Commencement Date of
the Lease; or (iv) the breach of any obligation of Tenant under this
Paragraph 49 (collectively, "Tenant's Environmental Indemnification").
Tenant's Environmental Indemnification shall include but is not limited to
the obligation to promptly and fully reimburse Landlord for losses in or
reductions to rental income, and diminution in fair market value of the
Property. Tenant's Environmental Indemnification shall further include but
is not limited to the obligation to diligently and properly implement to
completion, at Tenant's expense, any and all environmental investigation,
removal, remediation, monitoring, reporting, closure activities, or other
environmental response action (collectively, "Response Actions").
Initial: _________
Tenant shall promptly provide Landlord with copies of any claims, notices,
work plans, data and reports prepared, received or submitted in connection
with any Response Actions.
It is agreed that the Tenant's responsibilities related to Hazardous
Materials will survive the expiration or termination of this Lease and that
Landlord may obtain specific performance of Tenant's responsibilities under
this Paragraph 49."
10. OPTION TO LEASE ADDITIONAL SPACE: Tenant's Option to Lease an
additional 9,483 square feet under Lease Paragraph 48 ("Option to Lease
Additional Space") expired on April 1, 1994; therefore it is agreed between the
parties that said Lease Paragraph 48 is hereby deleted in its entirety and of no
further force or effect.
11. AUTHORITY TO EXECUTE. The parties executing this Agreement hereby
warrant and represent that they are properly authorized to execute this
Agreement and bind the parties on behalf of whom they execute this Agreement and
to all of the terms, covenants and conditions of this Agreement as they relate
to the respective parties hereto.
EXCEPT AS MODIFIED HEREIN, all other terms, covenants, and conditions of
said December 6, 1993 Lease Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment No. 1
to Lease as of the day and year last written below.
LANDLORD: TENANT:
XXXX XXXXXXXXX SURVIVOR'S TRUST ADAC LABORATORIES
a California corporation
By By
-------------------------------- --------------------------------
Xxxx Xxxxxxxxx, Trustee
-----------------------------------
Date: Print or Type Name
------------------------------
XXXXXXX X. XXXXX SEPARATE Title:
PROPERTY TRUST ----------------------------
By Date:
-------------------------------- ------------------------------
Xxxxxxx X. Xxxxx, Trustee
Date:
-----------------------------
Initial: _________
