INDUSTRIAL REAL ESTATE LEASE
(MULTI-TENANT FACILITY)
ARTICLE ONE: BASIC TERMS
This Article One contains the Basic Terms of this Industrial Real Estate
Lease (this "Lease") between Landlord and Tenant named below. Other Articles,
Sections and Paragraphs of this Lease referred to in this Article One explain
and define the Basic Terms and are to be read in conjunction with the Basic
Terms.
Section 1.01. Date of Lease: November 28, 2000
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Section 1.02. Landlord (include legal entity): BUCKHEAD INDUSTRIAL
PROPERTIES, INC., a Maryland corporation
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Address of Landlord: c/o Lend Lease Real Estate Investments, Inc., 19800
MacArthur Boulevard, Suite 1000, Irvine, CA 92812
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Section 1.03. Tenant (include legal entity): GISH BIOMEDICAL, INC.,
a California corporation
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Address of Tenant:
2681 Kelvin Ave., Irvine, CA
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Section 1.04. Tenant's Guarantor: (If none, so state) None.
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Section 1.05. Property: The Property is part of Landlord's multi-tenant
real property development known as the Phoenix Business Center and described or
depicted on Exhibit "A" (the "Project"). The Project includes the land, the
buildings and all other improvements located on the land, and the common areas
described in Paragraph 4.05(a). The Property is an approximately Twenty-Three
Thousand Forty (23,040) square foot portion of that certain industrial building
commonly known as 15041 Bake Parkway, Suite F, Irvine, California, as depicted
on the site plan attached hereto as Exhibit "A". Landlord and Tenant hereby
acknowledge and agree that the foregoing statement of square footage is not a
representation or warranty of the exact number of square feet but rather is only
a reasonable approximation and that the Base Rent payable below is not subject
to revision whether or not the actual square footage is more or less than the
approximation.
Section 1.06. Permitted Use: (See Article Five) The light manufacturing,
assembly and storage of medical products and general office use related thereto
and for no other use or purpose.
Section 1.07. Lease Term: Five (5) years zero (0) months beginning on the
date that is thirty-five (35) days after the date Tenant executes and delivers
this Lease to Landlord or such other date as is specified in Section 2.01 of
this Lease (the "Commencement Date"), and ending on the day before the fifth
(5th) anniversary of the Commencement Date. Tenant shall have one (1) option to
extend the Lease Term for a period of five (5) years pursuant to and in
accordance with Article 17 of this Lease.
Section 1.08. Rent and Other Charges Payable by Tenant:
(a) BASE RENT: Twelve Thousand Two Hundred Eleven and 20/100 Dollars
($12,211.20) per month for the first twelve (12) months, as provided in Section
3.01, and shall be increased on the first day of the thirteenth (13th) month
after the Commencement Date, as provided in Section 3.02.
(b) OTHER PERIODIC PAYMENTS: (i) Real Property Taxes (See Section 4.02,
4.08); (ii) Utilities (See Section 4.03); (iii) Insurance Premiums (See Section
4.04, 4.08); (iv) Tenant's initial Pro Rata Share of Common Area Expenses 6.47%
(See ----- Section 4.05); (v) Impounds for Insurance Premiums and Property Taxes
(See Section 4.08); and (vi) Maintenance, Repairs and Alterations (See Article
Six).
Section 1.09. Brokers: (See Article Fourteen) (If none, so state)
Landlord's Broker: CB Richard Ellis, Inc.
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Tenant's Broker: Colliers Seeley
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Section 1.10. Initial Security Deposit: (See Section 3.03) $30,000.00
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Section 1.11. Vehicle Parking Spaces Allocated to Tenant: (See Section
4.05) Approximately twenty-three (23) unreserved parking spaces in common with
other tenants of the Project.
Section 1.12. Commission Payable to Landlord's Broker: (See Article
Fourteen) Per Separate Agreement.
Section 1.13. Landlord's Share of Profit on Assignment or Sublease: (See
Section 9.05) Fifty percent (50%) of the Profit (the "Landlord's Share").
Section 1.14. Riders and Exhibits: The following Riders and Exhibits are
attached to and made a part of this Lease: (If none, so state)
Exhibit "A" - Site Plan
Exhibit "B" - Hazardous Materials Questionnaire
Exhibit "C" - Tenant's Moveout Responsibilities
Exhibit "D" - Memorandum of Term Commencement
Tenant shall comply at all times with all terms and provisions of all Riders and
Exhibits to this Lease attached hereto and incorporated herein by this
reference.
ARTICLE TWO: LEASE TERM
Section 2.01. Lease of Property For Lease Term. Landlord leases the
Property to Tenant and Tenant leases the Property from Landlord for the Lease
Term. The Lease Term is for the period stated in Section 1.07 above and shall
begin and end on the dates specified in Section 1.07 above, unless the beginning
or end of the Lease Term is changed under any provision of this Lease. The
Commencement Date shall be the date specified in Section 1.07 above for the
beginning of the Lease Term, unless advanced or delayed under any provision of
this Lease. Within fifteen (15) days after the Commencement Date, Landlord and
Tenant shall execute a Memorandum of Term Commencement in the form attached
hereto as Exhibit "D".
Section 2.02. Delay in Commencement. Landlord shall not be liable to Tenant
if Landlord does not deliver possession of the Property to Tenant on the
Commencement Date. Landlord's non-delivery of the Property to Tenant on that
date shall not affect this Lease or the obligations of Tenant under this Lease
except that the Commencement Date shall be delayed until Landlord delivers
possession of the Property to Tenant and the Lease Term shall be extended for a
period equal to the delay in delivery of possession of the Property to Tenant,
plus the number of days necessary to end the Lease Term on the last day of a
month. If Landlord does not deliver possession of the Property to Tenant within
ninety (90) days after the Commencement Date, Tenant may elect to cancel this
Lease by giving written notice to Landlord within ten (10) days after the ninety
(90) day period ends. If Tenant gives such notice, this Lease shall be cancelled
and neither Landlord nor Tenant shall have any further obligations to the other;
provided, however, that Landlord shall return the Security Deposit to Tenant not
more than thirty (30) days after receipt of Tenant's written termination notice.
If Tenant does not give such notice, Tenant's right to cancel this Lease shall
expire and the Lease Term shall commence upon the delivery of possession of the
Property to Tenant. If delivery of possession of the Property to Tenant is
delayed, Landlord and Tenant shall, upon such delivery, execute an amendment to
this Lease setting forth the actual Commencement Date and expiration date of
this Lease. Failure to execute such amendment shall not affect the actual
Commencement Date and expiration date of this Lease.
Section 2.03. Early Occupancy. If Tenant occupies the Property prior to the
Commencement Date, Tenant's occupancy of the Property shall be subject to all of
the provisions of this Lease. Early occupancy of the Property shall not advance
the expiration date of this Lease. Tenant shall pay Base Rent and all other
charges specified in this Lease for the early occupancy period.
Section 2.04. Holding Over. Tenant shall vacate the Property upon the
expiration or earlier termination of this Lease. Tenant shall reimburse Landlord
for and indemnify Landlord against all damages which Landlord incurs from
Tenant's delay in vacating the Property through no fault of Landlord. If Tenant
does not vacate the Property upon the expiration or earlier termination of this
Lease and Landlord thereafter accepts rents from Tenant, Tenant's occupancy of
the Property shall be a "month-to-month" tenancy, subject to all of the terms of
this Lease applicable to a month-to-month tenancy, except that the Base Rent
then in effect shall be increased by fifty percent (50%).
Section 2.05 Condition of Property Upon Delivery. Landlord shall deliver
the Property to Tenant clean and free of debris on the Commencement Date and
represents to Tenant that the existing plumbing, fire sprinkler system,
lighting, air conditioning, heating and ventilation system and loading doors, if
any, in the Property, other than those constructed by Tenant, shall be in good
operating condition as of the Commencement Date. If a non-compliance with said
representation exists as of the Commencement Date, Landlord shall, except as
otherwise provided in this Lease, promptly after receipt of written notice from
Tenant setting forth with specificity the nature and extent of such
non-compliance, rectify the same at Landlord's expense. If Tenant does not give
Landlord written notice of a non-compliance with this representation within
thirty (30) days after the Commencement Date, correction of that non-compliance
shall be the obligation of Tenant at Tenant's sole cost and expense.
ARTICLE THREE: BASE RENT
Section 3.01. Time and Manner of Payment. Upon execution of this Lease,
Tenant shall pay Landlord the sum of Thirty-Seven Thousand Seven Hundred
Forty-Three and 61/100 Dollars ($37,743.61) which sum represents the Base Rent
due under this Lease for the first (1st), thirteenth (133h) and twenty-fifth
(25th) months of the Lease Term. On the first day of the second (2nd) month of
the Lease Term and each month thereafter, with the exception of the thirteenth
(13th) and the twenty-fifth (25th) months of the Lease Term which Tenant shall
prepay upon the execution of this Lease, Tenant shall pay Landlord the Base
Rent, in advance, without offset, deduction or prior demand. The Base Rent shall
be payable without notice or demand at Landlord's address or at such other place
as Landlord may designate in writing.
Section 3.02. Base Rent Increases. On the first day of the thirteenth
(13th) month following the Commencement Date, Base Rent, as specified in Section
1.08 above, shall be increased to Twelve Thousand Five Hundred Seventy-Seven and
54/100 Dollars ($12,577.54) per month and such amount shall be the Base Rent due
under this Lease through and including the twenty-fourth (24th) month following
the Commencement Date, and on the first day of the twenty-fifth (25th) month
following the Commencement Date, Base Rent shall be increased to Twelve Thousand
Nine Hundred Fifty-Four and 87/100 Dollars ($12,954.87) per month and such
amount shall be the Base Rent due under this Lease through and including the
thirty-sixth (36th) month following the Commencement Date, and on the first day
of the thirty-seventh (37th) month following the Commencement Date, Base Rent
shall be increased to Thirteen Thousand Three Hundred Forty-Three and 52/100
Dollars ($13,343.52) per month and such amount shall be the Base Rent due under
this Lease through and including the forty-eighth (48th) month following the
Commencement Date, and on the first day of the forty-ninth (49th) month
following the Commencement Date, Base Rent shall be increased to Thirteen
Thousand Seven Hundred Forty-Three and 83/100 Dollars ($13,743.83) and such
amount shall be the Base Rent due under this Lease through and including the
sixtieth (60th) month following the Lease Commencement Date.
Section 3.03. Security Deposit.
(a) Upon the execution of this Lease, Tenant shall deposit with Landlord a
cash Security Deposit in the amount set forth in Section 1.10 above. Landlord
may apply all or part of the Security Deposit to any unpaid rent or other
charges due from Tenant or to cure any other defaults of Tenant. If Landlord
uses any part of the Security Deposit, Tenant shall restore the Security Deposit
to its full amount within ten (10) days after Landlord's written request.
Tenant's failure to do so shall be a material default under Section 10.02(b) of
this Lease. No interest shall be paid on the Security Deposit. Landlord shall
not be required to keep the Security Deposit separate from its other accounts
and no trust relationship is created with respect to the Security Deposit.
(b) Intentionally Deleted.
Section 3.04. Termination; Advance Payments. Not more than thirty (30) days
after the termination of this Lease under Article Seven (Damage or Destruction),
Article Eight (Condemnation) or any other termination not resulting from
Tenant's default, and after Tenant has vacated the Property in the manner
required by this Lease, Landlord shall refund or credit to Tenant (or Tenant's
successor) the unused portion of the Security Deposit, any advance rent or other
advance payments made by Tenant to Landlord, and any amounts paid for real
property taxes and other reserves which apply to any time periods after
termination of this Lease.
ARTICLE FOUR: OTHER CHARGES PAYABLE BY TENANT
Section 4.01. Additional Rent. All charges payable by Tenant other than
Base Rent are referred to herein as "Additional Rent." Unless this Lease
provides otherwise, Tenant shall pay all Additional Rent then due with the next
monthly installment of Base Rent. The term "rent" shall mean Base Rent and
Additional Rent.
Section 4.02. Property Taxes.
(a) Definition of "Real Property Tax." "Real Property Tax" means: (i) any
fee, license tax, business license fee, commercial rental levy, charge,
assessment, penalty or tax imposed by any taxing authority against the Property;
(ii) any tax on the Landlord's right to receive, or the receipt of, rent or
income from the Property or against Landlord's business of leasing the Property;
(iii) any tax or charge for fire protection, streets, sidewalks, road
maintenance, refuse or other services provided to the Property by any
governmental agency, (iv) any tax imposed upon this transaction or based upon a
re-assessment of the Property due to a change of ownership, as defined by
applicable law, or other transfer of all or part of Landlord's interest in the
Property; and (v) any charge or fee replacing any tax previously included within
the definition of Real Property Tax. "Real Property Tax" does not, however,
include Landlord's federal or state income, franchise, inheritance or estate
taxes. Notwithstanding the foregoing, "Real Property Taxes" shall not include
tax penalties or interest incurred as a result of Landlord's negligence,
inability, unwillingness or failure to make payments when due. Landlord shall
provide Tenant with a copy of the most recent tax bill covering the Property and
any other tax information in Landlord's possession relating to the Property.
(b) Real Property Taxes. Tenant shall pay all Real Property Taxes on the
Property (including any fees, taxes or assessments against, or as a result of,
any tenant improvements installed on the Property by or for the benefit of
Tenant) during the Lease Term in accordance with Section 4.05(e) and, if
applicable, Section 4.08 below. Landlord shall reimburse Tenant for any Real
Property Taxes paid by Tenant covering any period of time prior to or after the
Lease Term. If Tenant fails to pay the Real Property Taxes when due, in
accordance with Section 4.05(e), Landlord may pay the taxes and Tenant shall
reimburse Landlord for the amount of such tax payment as Additional Rent.
(c) Joint Assessment. If the Property is not separately assessed, Landlord
shall reasonably determine Tenant's share of Real Property Taxes payable by
Tenant under Paragraph 4.02(a) from the assessor's worksheets or other
reasonably available information. Tenant shall pay such share to Landlord in
accordance with Section 4.05(e) below. Upon Tenant's request, Landlord shall
provide Tenant the supporting documentation regarding Tenant's share of Real
Property Taxes.
(d) Personal Property Taxes.
(i) Tenant shall pay all taxes charged against trade fixtures,
furnishings, equipment or any other personal property belonging to Tenant.
Tenant shall use its best efforts to have personal property taxed
separately from the Property.
(ii) If any of Tenant's personal property is taxed with the Property,
Tenant shall pay Landlord the taxes for the personal property within
fifteen (15) days after Tenant receives a written statement from
Landlord for such personal property taxes.
Section 4.03. Utilities. Tenant shall pay, directly to the appropriate
supplier, the cost of all natural gas, heat, light, power, sewer service,
telephone, water, refuse disposal and other utilities and services supplied to
the Property. However, if any services or utilities are jointly metered with
other property, Landlord shall make a reasonable determination of Tenant's
proportionate share of the cost of such utilities and services and Tenant shall
pay such share to Landlord within fifteen (15) days after receipt of Landlord's
written statement.
Section 4.04. Insurance Policies.
(a) Liability Insurance. During the Lease Term, Tenant shall maintain a
policy of commercial general liability insurance (sometimes known as broad form
comprehensive general liability insurance) insuring Tenant against liability for
bodily injury, property damage (including loss of use of property) and personal
injury arising out of the operation, use or occupancy of the Property. Landlord
and Landlord's agents, whose names shall be provided to Tenant by Landlord,
shall be named as an additional insured under such policy. The initial amount of
such insurance shall be Two Million and No/100 Dollars ($2,000,000.00) per
occurrence and shall be subject to periodic increase based upon inflation,
increased liability awards, recommendation of Landlord's professional insurance
advisers and other relevant factors. The liability insurance obtained by Tenant
under this Paragraph 4.04(a) shall (i) be primary and noncontributing; (ii)
contain cross-liability endorsements; and (iii) insure Landlord against Tenant's
performance under Section 5.05 resulting from the negligence of Tenant. The
amount and coverage of such insurance shall not limit Tenant's liability nor
relieve Tenant of any other obligation under this Lease. Landlord may also
obtain comprehensive public liability insurance in an amount and with coverage
determined by Landlord insuring Landlord against liability arising out of
ownership, operation, use or occupancy of the Property. The policy obtained by
Landlord shall not be contributory and shall not provide primary insurance.
Tenant shall secure an appropriate clause in, or an endorsement upon, each
insurance policy required by this Lease, pursuant to which the insurance company
waives subrogation or permits the insured, prior to any loss, to agree with a
third party to waive any claim it might have against said third party without
invalidating the coverage under the insurance policy. Such waiver of subrogation
or permission for waiver of any claim shall extend to the agents and employees
of Landlord and Tenant, respectively.
(b) Property and Rental Income Insurance. During the Lease Term, Landlord
shall maintain policies of insurance covering loss of or damage to the Property
in the full amount of its replacement value and Landlord shall provide Tenant
with written evidence of the same. Such policy shall contain an Inflation Guard
Endorsement and shall provide protection against all perils included within the
classification of fire, extended coverage, vandalism, malicious mischief,
special extended perils (all risk), sprinkler leakage and any other perils which
Landlord deems reasonably necessary and which are customarily carried by
landlords of projects comparable to the Project. Landlord shall have the right
to obtain flood and earthquake insurance, and may, upon Tenant's request, obtain
insurance on building improvements installed on the Property. Landlord shall not
obtain insurance for Tenant's fixtures or equipment. During the Lease Term,
Landlord shall also maintain a rental income insurance policy, with loss payable
to Landlord, in an amount equal to one year's Base Rent, plus estimated real
property taxes and insurance premiums. Tenant shall not do or permit anything to
be done which invalidates any such insurance policies. Tenant shall be liable
for the payment of any deductible amount under Landlord's or Tenant's insurance
policies maintained pursuant to this Section 4.04. Notwithstanding anything to
the contrary contained in this Lease, in the event that the Property is the only
portion of the Project that is damaged or that suffers a loss, Tenant shall be
liable for the payment of the entire deductible amount under Landlord's
insurance policies maintained pursuant to this Lease. In the event that the
entire building in which the Property is located (the "Building") is damaged or
suffers a loss, Tenant shall be liable only for Tenant's pro rata share
("Tenant's Pro Rata Share of the Building") of any deductible amount under
Landlord's insurance policies maintained pursuant to this Lease. Tenant's Pro
Rata Share of the Building shall be calculated by dividing the square foot area
of the Property, as set forth in Section 1.04 of this Lease, by the aggregate
square foot area of the Building. In the event that a portion of the Project
that is greater than the Building is damaged or suffers a loss, Tenant shall be
liable only for Tenant's pro rata share ("Tenant's Pro Rata Share of the
Project") of any deductible amount under Landlord's insurance policies
maintained pursuant to this Lease. For the purposes of this Section 4.04(b),
Tenant's Pro Rata Share of the Project shall be calculated by dividing the
square foot area of the Property that is damaged by the aggregate square foot
area of the portion of the Project that is damaged.
(c) Payment of Premiums. Subject to Section 4.08, Tenant shall pay all
premiums for the insurance policies described in Paragraphs 4.04(a) and (b)
(whether obtained by Landlord or Tenant) within fifteen (15) days after Tenant's
receipt of a copy of the premium statement or other evidence of the amount due.
For insurance policies maintained by Landlord which cover improvements on the
entire project, Tenant shall pay Tenant's prorated share of the premiums, in
accordance with the formula in Paragraph 4.05(e) for determining Tenant's Pro
Rata Share of Common Area Expenses. In addition, any premiums paid by Landlord
for commercial general liability insurance, including umbrella or excess
liability relating to the Project and/or the Property, shall be included as a
Common Area Expense, and Tenant shall pay its Pro Rata Share of any such
premiums. If insurance policies maintained by Landlord cover improvements on
real property other than the Project, Landlord shall deliver to Tenant a
statement of the premium applicable to the Property showing in reasonable detail
how Tenant's share of the premium was computed. If the Lease Term expires before
the expiration of an insurance policy maintained by Landlord, Tenant shall be
liable for Tenant's prorated share of the insurance premiums. Before the
Commencement Date, Tenant shall deliver to Landlord a copy of any policy of
insurance which Tenant is required to maintain under this Section 4.04. At least
thirty (30) days prior to the expiration of any such policy, Tenant shall
deliver to Landlord a renewal of such policy. As an alternative to providing a
policy of insurance, Tenant shall have the right to provide Landlord a
certificate of insurance, executed by an authorized officer of the insurance
company, showing that the insurance which Tenant is required to maintain under
this Section 4.04 is in full force and effect and containing such other
information as Landlord reasonably requires.
(d) General Insurance Provisions.
(i) Any insurance which Tenant is required to maintain under this Lease
shall include a provision which requires the insurance carrier to give
Landlord not less than thirty (30) days' written notice prior to any
cancellation or modification of such coverage.
(ii) If Tenant fails to deliver any policy, certificate or renewal to
Landlord required under this Lease within the prescribed time period or if
any such policy is cancelled or modified during the Lease Term without
Landlord's consent, Landlord may obtain such insurance, in which case
Tenant shall reimburse Landlord for the cost of such insurance within
fifteen (15) days after receipt of a statement that indicates the cost
of such insurance.
(iii) Tenant shall maintain all insurance required under this Lease
with companies holding a "General Policy Rating" of A-12 or better,
as set forth in the most current issue of "Best Key Rating Guide".
Landlord and Tenant acknowledge the insurance markets are rapidly changing
and that insurance in the form and amounts described in this Section 4.04
may not be available in the future. Tenant acknowledges that the insurance
described in this Section is for the primary benefit of Landlord. If at any
time during the Lease Term, any portion of the insurance required to be
maintained by Tenant under this Lease is not available in the jurisdiction
in which the Property is located, Tenant shall nevertheless maintain
insurance coverage which Landlord deems customary and commercially
reasonable in the insurance industry for Tenant's type of business.Landlord
makes no representation as to the adequacy of such insurance to protect
Landlord's or Tenant's interests. Therefore, Tenant shall obtain any such
additional property or liability insurance which Tenant deems necessary to
protect Landlord and Tenant; provided, that if Tenant maintains any
insurance in addition to the insurance required under this Section 4.04,
Landlord shall be named as an additional insured thereon, and with respect
to any property insurance, Tenant shall make the proceeds thereof available
for restoration of the Property after any casualty.
(iv) Unless prohibited under any applicable insurance policies
maintained, Landlord and Tenant each hereby waives any and all rights of
recovery against the other, or against the officers, employees, agents or
representatives of the other, for loss of or damage to its property or the
property of others under its control, if such loss or damage is covered
by any insurance policy in force (whether or not described in this
Lease) at the time of such loss or damage. Upon obtaining the required
policies of insurance, Landlord and Tenant shall give notice to the
insurance carriers of this mutual waiver of subrogation.
Section 4.05. Common Areas; Use, Maintenance and Costs.
(a) Common Areas. As used in this Lease, "Common Areas" shall mean all
areas within the Project which are available for the common use of tenants of
the Project and which are not leased or held for the exclusive use of Tenant or
other tenants, including, but not limited to, parking areas, driveways,
sidewalks, loading areas, access roads, corridors, landscaping and planted
areas. Landlord, from time to time, may change the size, location, nature and
use of any of the Common Areas, convert Common Areas into leasable areas,
construct additional parking facilities (including parking structures) in the
Common Areas, and increase or decrease Common Area land and/or facilities.
Tenant acknowledges that although such activities and changes may result in
inconvenience to Tenant, Tenant consents to such activities and changes and
agrees that the same shall not constitute a breach of this Lease or an eviction
of Tenant, constructive or otherwise. Notwithstanding the foregoing, Landlord
shall not change the size, location, nature or use of the Common Areas so as to
materially adversely impact Tenant's business, operations, parking or access to
the Property
(b) Use of Common Areas. Tenant shall have the nonexclusive right (in
common with other tenants and all others to whom Landlord has granted or may
grant such rights) to use the Common Areas for the purposes intended, subject to
such reasonable rules and regulations as Landlord may establish from time to
time. Tenant shall abide by such rules and regulations and shall use its best
efforts to cause others who use the Common Areas with Tenant's express or
implied permission to abide by Landlord's rules and regulations. At any time,
Landlord may close any Common Areas to perform any acts in the Common Areas as,
in Landlord's judgment, are desirable to improve the Project and Tenant agrees
that the same shall not constitute a breach of this Lease or an eviction of
Tenant, constructive or otherwise. Tenant shall not interfere with the rights of
Landlord, other tenants or any other person entitled to use the Common Areas.
(c) Specific Provision re: Vehicle Parking. Tenant shall be entitled to use
the number of vehicle parking spaces in the Project allocated to Tenant in
Section 1.11 of this Lease, if any, without paying any additional rent. Tenant's
parking shall not be reserved and shall be limited to vehicles no larger than
standard size automobiles or pickup utility, suburban or like-sized vehicles.
Tenant shall not cause large trucks or other large vehicles to be parked within
the Project or on the adjacent public streets. Temporary parking of large
delivery vehicles in the Project may only be permitted by the rules and
regulations established by Landlord. Vehicles shall be parked only in striped
parking spaces and not in driveways, loading areas or other locations not
specifically designated for parking. Handicapped spaces shall only be used by
those legally permitted to use them. If Tenant parks more vehicles in the
parking area than the number set forth in Section 1.11 of this Lease, such
conduct shall be a material breach of this Lease. In addition to Landlord's
other remedies under this Lease, Tenant shall pay a daily charge determined by
Landlord for each such additional vehicle.
(d) Maintenance of Common Areas. Landlord shall maintain the Common Areas
in good order, condition and repair and shall operate the Project, in Landlord's
sole discretion, as a first-class industrial/commercial real property
development. Tenant shall pay Tenant's Pro Rata Share (as determined below) of
all costs incurred by Landlord for the operation and maintenance of the Common
Areas ("Common Area Expenses"). Common Area Expenses include, but are not
limited to, costs and expenses for the following: gardening and landscaping;
utilities, water and sewage charges; maintenance of signs (other than tenants'
signs); premiums for liability, property damage, fire insurance and other types
of casualty insurance on the Common Areas and worker's compensation insurance;
all property taxes levied on or attributable to personal property used in
connection with the Common Areas; straight-line depreciation on personal
property owned by Landlord which is consumed in the operation or maintenance of
the Common Areas; rental or lease payments paid by Landlord for rented or leased
personal property used in the operation or maintenance of the Common Areas; fees
for required licenses and permits; repairing, resurfacing, repaving,
maintaining, painting, lighting, cleaning, refuse removal, security and similar
items; reserves for roof replacement and exterior painting and other appropriate
reserves; and a reasonable allowance to Landlord for Landlord's supervision of
the Common Areas (not to exceed five percent (5%) of the gross rents of the
Project for the calendar year). Landlord may cause any or all of such services
to be provided by third parties and the cost of such services shall be included
in Common Area Expenses. Common Area Expenses shall not include depreciation of
real property which forms part of the Common Areas.
(e) Tenant's Share and Payment. Tenant shall pay Tenant's annual Pro Rata
Share of all Common Area Expenses (prorated for any fractional month) upon
written notice from Landlord that such costs are due and payable, and in any
event prior to delinquency. Tenant's Pro Rata Share shall be calculated by
dividing the square foot area of the Property, as set forth in Section 1.05 of
this Lease, by the aggregate square foot area of the Project which is leased or
held for lease by tenants, as of the date on which the computation is made.
Tenant's initial Pro Rata Share is set out in Paragraph 1.08(b). Any changes in
the Common Area Expenses and/or the aggregate area of the Project leased or held
for lease during the Lease Term shall be effective on the first day of the month
after such change occurs. Landlord may, at Landlord's election, estimate in
advance and charge to Tenant monthly, all Real Property Taxes for which Tenant
is liable under Section 4.02 of this Lease, all insurance premiums for which
Tenant is liable under Section 4.04 of this Lease, all maintenance and repair
costs for which Tenant is liable under Section 6.04 of this Lease, and all other
Common Area Expenses payable by Tenant hereunder. Tenant shall pay such
estimated amounts monthly along with Tenant's payment of Base Rent. Landlord may
adjust such estimates at any time based upon Landlord's experience and
anticipation of costs. Such adjustments shall be effective as of the next rent
payment date after notice to Tenant. At Landlord's election, such estimated
Common Area Expenses shall be paid quarterly or at any other periodic intervals
to be designated by Landlord. Within ninety (90) days after the end of each
calendar year of the Lease Term, Landlord shall deliver to Tenant a statement
setting forth, in reasonable detail, the Common Area Expenses paid or incurred
by Landlord during the preceding calendar year and Tenant's Pro Rata Share. Upon
receipt of such statement, there shall be an adjustment between Landlord and
Tenant, with payment to or credit given by Landlord (as the case may be) so that
Landlord shall receive the entire amount of Tenant's share of such costs and
expenses for such period. Notwithstanding anything to the contrary contained
herein, Landlord shall have the right, from time to time, to equitably allocate
some or all of the Common Area Expenses for the Project among different portions
or tenants of the Project ("Cost Pools"), in Landlord's reasonable discretion.
The Common Area Expenses within each such Cost Pool shall be allocated and
charged to the tenants within such Cost Pool in an equitable manner. Throughout
the Lease Term, Landlord shall provide Tenant with reasonable supporting
documentation regarding Tenant's Share of Common Area Expenses within thirty
(30) days of receipt of Tenant's written request therefor.
(f) Tenant Audit Right. Tenant shall have a period of thirty (30) days
after receipt of any annual statement of Common Area Expenses to question or
challenge the amount shown thereon as being the annual Common Area Expenses or
Tenant's Pro Rata Share thereof by giving written notice to Landlord specifying
the items which are challenged. Tenant waives and relinquishes the right to
challenge or object to the amounts shown at any time after expiration of such
thirty (30) day period. If Tenant timely challenges any item shown on the annual
statement, Tenant or Tenant's representative shall then have a period of thirty
(30) days in which to inspect and, at Tenant's cost, copy during business hours
upon reasonable written notice to Landlord at Landlord's office Landlord's
records relating to the challenged item or items. Tenant shall give written
notice to Landlord prior to expiration of such thirty (30) day of whether Tenant
continues to challenge any of the items originally objected to, in which case an
independent certified public accountant (which accountant is a member of a
nationally recognized accounting firm), designated by Tenant and approved by
Landlord (which approval shall not be unreasonably withheld) (the "Independent
CPA") shall inspect Landlord's records at Landlord's offices at Tenant's
expense. If the Independent CPA determines an error was made in the calculation
of Common Area Expenses from the annual statement, the parties shall make such
appropriate payments or reimbursements, as the case may be, to each other as are
determined to be owing. Any reimbursement amounts determined to be owing by
Landlord to Tenant or by Tenant to Landlord shall be (i) in the case of amounts
owing from Tenant to Landlord paid within thirty (30) days following such
determination, and (ii) in the case of amounts owing from Landlord to Tenant,
credited against the next payment of Base Rent due Landlord under this terms of
this Lease, or if the Lease Term, as the same may be extended, has expired,
within thirty (30) days of such determination. If the audit performed the
Independent CPA reveals that Landlord's determination of Tenant's Pro Rata Share
of Common Area Expenses as set forth in any statement sent to Tenant was in
error in Landlord's favor by more than five percent (5%), Landlord shall pay to
Tenant the reasonable cost of such audit, not to exceed $2,500. If Tenant fails
to review the records or fails to give timely written notice to Landlord that it
continues to object, then Tenant shall be deemed to have waived its objection
and shall have no further right to challenge or object thereto. Notwithstanding
any objection or challenge of Tenant, Tenant shall pay the amount claimed by
Landlord to be due as and when provided for herein, pending the resolution of
Tenant's objection.
Section 4.06. Late Charges. Tenant's failure to pay rent promptly may cause
Landlord to incur unanticipated costs. The exact amount of such costs are
impractical or extremely difficult to ascertain. Such costs may include, but are
not limited to, processing and accounting charges and late charges which may be
imposed on Landlord by any ground lease, mortgage or trust deed encumbering the
Property. Therefore, if Landlord does not receive any rent payment within three
(3) days after it becomes due, Tenant shall pay Landlord a late charge equal to
ten percent (10%) of the overdue amount. The parties agree that such late charge
represents a fair and reasonable estimate of the costs Landlord will incur by
reason of such late payment.
Section 4.07. Interest on Past Due Obligations. Any amount owed by Tenant
to Landlord which is not paid when due shall bear interest at the rate of
fifteen percent (15%) per annum from the due date of such amount. However,
interest shall not be payable on late charges to be paid by Tenant under this
Lease. The payment of interest on such amounts shall not excuse or cure any
default by Tenant under this Lease. If the interest rate specified in this Lease
is higher than the rate permitted by law, the interest rate shall be decreased
to the maximum legal interest rate permitted by law.
Section 4.08. Impounds for Insurance Premiums and Real Property Taxes. In
addition to and without limiting Tenant's obligations with respect to payment of
Landlord's estimate pursuant to Section 4.05(e) above, if requested by any
ground lessor or lender to whom Landlord has granted a security interest in the
Property, or if Tenant is more than ten (10) days late in the payment of rent
more than once in any consecutive twelve (12) month period, Tenant shall pay
Landlord a sum equal to one-twelfth (1/12) of the annual real property taxes and
insurance premiums payable by Tenant under this Lease, together with each
payment of Base Rent. Landlord shall hold such payments in a non-interest
bearing impound account. If unknown, Landlord shall reasonably estimate the
amount of real property taxes and insurance premiums when due. Tenant shall pay
any deficiency of funds in the impound account to Landlord upon written request.
If Tenant defaults under this Lease, Landlord may apply any funds in the impound
account to any obligation then due under this Lease.
ARTICLE FIVE: USE OF PROPERTY
Section 5.01. Permitted Use. Tenant may use the Property only for the
Permitted Use set forth in Section 1.06 above.
Section 5.02. Manner of Use. Tenant shall not cause or permit the Property
to be used in any way which constitutes a violation of any law, ordinance, or
governmental regulation or order, which annoys or interferes with the rights of
tenants of the Project, or which constitutes a nuisance or waste.
Notwithstanding anything contained in this Lease to the contrary, Tenant shall
at its sole cost and expense, faithfully observe and promptly comply and cause
the Property to comply with all local, state or federal laws, statutes,
ordinances and governmental rules, regulations or requirements now or hereafter
in force including, but not limited to, the Occupational Safety and Health Act,
laws or regulations relating to the accessibility or useability of the Property
by disabled persons, and the requirements of any board of fire underwriters or
other similar bodies now or hereafter constituted relating to or affecting the
condition, use or occupancy of the Property, regardless of (a) the relationship
of the cost of compliance to the Base Rent reserved in this Lease; (b) the
length of the Lease Term; (c) the degree to which compliance would benefit
Landlord or Tenant; (d) whether compliance relates or pertains to structural or
non-structural matters; (e) the degree to which Tenant's use and enjoyment of
the Property will be interfered with while work to comply is taking place; and,
(f) whether the parties contemplated application of the particular applicable
law in question. Tenant acknowledges that Landlord makes no representation or
warranty in this Lease that the Property or any portion thereof is in compliance
with any governmental statutes, ordinances, rules or regulations relating to the
accessibility or useability of the Property or any portion thereof by disabled
persons. Tenant shall obtain and pay for all licenses and permits, including a
Certificate of Occupancy, required for Tenant's occupancy or use of the
Property. Notwithstanding the foregoing, if any structural alteration or
modification ("Structural Modification") is required under any law, statute,
code, rule or regulation ("Laws"), (i) with respect to Laws in effect prior to
the Commencement Date, Landlord shall, at Landlord's sole cost and expense, and
not as an Common Area Expense, make such Structural Modification to the Property
and Common Areas, if and when required by any governmental agency, pursuant to
such Laws; provided, however, that if such Structural Modification is triggered
by or required as a result of Tenant's specific use of or improvements to the
Property, Tenant shall solely bear the cost of such Structural Modification, and
(ii) with respect to new Laws taking effect after the Commencement Date (for
this purpose, a change in the interpretation of or a change in the procedures
for enforcing an existing Law will be the equivalent of a new Law), Landlord
shall, subject to reimbursement by Tenant as a Common Area Expense in accordance
with Section 4.05(e) of this Lease, make such Structural Modification to the
Property and Common Areas, if and when required by any governmental agency,
pursuant to such new Laws; provided, however, that the cost of such Structural
Modifications shall be amortized over the useful life of such items; and
provided further, that if such Structural Modification is triggered by or
required as a result of Tenant's specific use of or improvements to the
Property, Tenant shall solely bear the cost of such Structural Modification.
Section 5.03. Extraordinary Use. In the event Tenant's use of the Property
causes extraordinary wear and tear on the Property or on all or any portion of
the Common Area or requires maintenance in excess of that ordinarily required
for tenants of the Project, as reasonably determined by Landlord, Landlord may,
at Landlord's election, charge to Tenant any costs relating to or arising out of
such extraordinary use, including, but not limited to, additional maintenance
and repair costs and Tenant shall reimburse Landlord on demand therefor.
Section 5.04. Hazardous Materials.
(a) Definition. As used in this Lease, the term "Hazardous Materials" means
any flammable items, explosives, radioactive materials, hazardous or toxic
substances, material or waste or related materials, including any substances
defined as or included in the definition of "hazardous substances", "hazardous
wastes", "infectious wastes", "hazardous materials" or "toxic substances" now or
subsequently regulated under any federal, state or local laws, regulations or
ordinances including, without limitation, oil, petroleum-based products, paints,
solvents, lead, cyanide, DDT, printing inks, acids, pesticides, ammonia
compounds and other chemical products, asbestos, PCBs and similar compounds, and
including any different products and materials which are subsequently found to
have adverse effects on the environment or the health and safety of persons.
(b) General Prohibition. Tenant shall not cause or permit any Hazardous
Materials to be generated, produced, brought upon, used, stored, treated,
discharged, released, spilled or disposed of on, in, under or about the Property
by Tenant, its affiliates, agents, employees, contractors, sublessees, assignees
or invitees (collectively, "Tenant Parties") without the prior written consent
of Landlord, which consent shall be granted or denied in Landlord's good faith
business judgment; provided, however, Landlord's consent shall not be required
to use or store (i) small quantities of standard office supplies standard for
offices of the size of the office space contained in the Property or (ii) small
quantities of common household cleaning supplies standard for the size of the
Property (such supplies, together with any other hazardous materials for which
Landlord's written consent is given, are hereinafter referred to as the
"Permitted Materials"). In no event, however, shall Landlord be required to
consent to the use of asbestos-containing materials, PCBs or the installation or
use of any storage tanks in, on or under the Property. Tenant shall indemnify,
defend and hold Landlord, and each of Landlord's partners, shareholders,
officers, directors, employees, agents, attorneys, investment advisors,
portfolio managers, property managers, trustees, ancillary trustees,
beneficiaries and their affiliates (including, without limitation, Equitable
Real Estate Investment Management, Inc.), harmless from and against any and all
actions (including, without limitation, remedial or enforcement actions of any
kind, administrative or judicial proceedings, and orders or judgments arising
out of or resulting therefrom), costs, claims, damages (including, without
limitation, punitive damages), expenses (including, without limitation,
attorneys', consultants' and experts' fees, court costs and amounts paid in
settlement of any claims or actions), fines, forfeitures or other civil,
administrative or criminal penalties, injunctive or other relief (whether or not
based upon personal injury, property damage, or contamination of, or adverse
effects upon, the environment, water tables or natural resources), liabilities
or losses ("Environmental Claims") arising from (a) a breach of this prohibition
by Tenant or any of the Tenant Parties or (b) the presence, generation,
production, use, storage, treatment, discharge, release, spill or disposal of
the Permitted Materials.
(c) In the event that Hazardous Materials are discovered upon, in, or under
the Property, or any governmental agency or entity having jurisdiction over the
Property requires the removal of such Hazardous Materials, Tenant shall be
responsible for removing those Hazardous Materials arising out of or related to
the use or occupancy of the Property by Tenant or any of the Tenant Parties;
Tenant shall not be responsible for removing Hazardous Materials arising out of
or related to the use or occupancy of the Property by prior tenants or owners of
the Property except to the extent that Tenant or any of the Tenant Parties have
exacerbated such preexisting condition. Notwithstanding the foregoing, Tenant
shall not take any remedial action in or about the Property, nor enter into any
settlement agreement, consent decree or other compromise with respect to any
claims relating to any Hazardous Materials in any way connected with the
Property without first notifying Landlord of Tenant's intention to do so and
affording Landlord the opportunity to appear, intervene or otherwise
appropriately assert and protect Landlord's interest with respect thereto.
Tenant immediately shall notify Landlord in writing of: (i) any spill, release,
discharge or disposal of any Hazardous Material in, on or under the Property, or
any portion thereof of which Tenant has knowledge, (ii) any enforcement,
cleanup, removal or other governmental or regulatory action instituted,
contemplated, or threatened (if Tenant has notice thereof) pursuant to any
Hazardous Materials Laws of which Tenant has knowledge; (iii) any claim made or
threatened by any person against Tenant, any of the Tenant Parties or the
Property, relating to damage, contribution, cost recovery, compensation, loss or
injury resulting from or claimed to result from any Hazardous Materials of which
Tenant has knowledge; and (iv) any reports made to any governmental agency or
entity arising out of or in connection with any Hazardous Materials in, on,
under or about or removed from the Property of which Tenant has knowledge,
including any complaints, notices, warnings, reports or asserted violations in
connection therewith. Tenant also shall supply to Landlord as promptly as
possible, and in any event within five (5) business days after Tenant first
receives or sends the same, copies of all claims, reports, complaints, notices,
warnings or asserted violations relating in any way to the Property or the use
or occupancy thereof by Tenant or any of the Tenant Parties.
(d) The respective rights and obligations of Landlord and Tenant under this
Section 5.04 shall survive the expiration or earlier termination of this Lease.
(e) Attached hereto as Exhibit "B" is a true and correct copy of the
Industrial Lease Hazardous Material Questionnaire completed by Tenant and
submitted to Landlord as a material inducement relied upon by Landlord in
entering into this Lease.
Section 5.05. Signs and Auctions. Tenant shall be permitted, at Tenant's
sole cost and expense, to install identification signage on the exterior of the
Property. Such signage shall conform to Landlord's sign criteria and plans
approved by Landlord (which shall be consistent with current sign criteria
utilized by Landlord), and which approval shall not be unreasonably withheld or
delayed, and comply with all applicable laws, statutes, regulations, ordinances
and restrictions, including but not limited to, any permit requirements. Tenant
shall install and maintain said signage in good condition and repair at its sole
cost and expense during the entire Lease Term, as the same may be extended for
any Option Term in accordance herewith. Except as hereinabove mentioned, Tenant
shall not place, erect or maintain or cause to be placed, erected or maintained
on or to the roof or any exterior door, wall or window of the Property or any
other location in the Project. Any modifications to Tenant's signage, including
without limitation, the location, quality, design, style, lighting and size of
such sign, shall be consistent with applicable laws, rules and permits and shall
be subject to Landlord's prior written approval, in its reasonable discretion,
and at Tenant's sole cost and expense. Upon the expiration or earlier
termination of this Lease, Tenant shall be responsible, at its sole cost and
expense, for the removal of such signage and the repair of all damage to the
Property caused by such removal. Any signs, notices, logos, pictures, names or
advertisements which are installed and that have not been individually approved
by Landlord may be removed without notice by Landlord at the sole expense of
Tenant. Tenant shall not place any signs on the Property without Landlord's
prior written consent. Tenant shall not conduct or permit any auctions or
sheriff's sales at the Property.
Section 5.06. Indemnity. Tenant shall indemnify Landlord against and hold
Landlord harmless from any and all costs, claims or liability arising from: (a)
Tenant's use of the Property; (b) the conduct of Tenant's business or anything
else done or permitted by Tenant to be done in or about the Property, including
any contamination of the Property or any other property resulting from the
presence or use of Hazardous Materials caused or permitted by Tenant; (c) any
breach or default in the performance of Tenant's obligations under this Lease;
(d) any misrepresentation or breach of warranty by Tenant under this Lease; or
(e) other acts or omissions of Tenant. Tenant shall defend Landlord against any
such cost, claim or liability at Tenant's expense with counsel reasonably
acceptable to Landlord or, at Landlord's election, Tenant shall reimburse
Landlord for any legal fees or costs incurred by Landlord in connection with any
such claim. As a material part of the consideration to Landlord, Tenant assumes
all risk of damage to property or injury to persons in or about the Property
arising from any cause, and Tenant hereby waives all claims in respect thereof
against Landlord, except for any claim arising out of Landlord's gross
negligence or willful misconduct. As used in this Section, the term "Tenant"
shall include Tenant's employees, agents, contractors and invitees, if
applicable. Landlord shall indemnify Tenant and hold Tenant harmless from any
and all costs, claims or liability arising from Landlord's negligence or willful
misconduct.
Section 5.07. Landlord's Access. Landlord or its agents may enter the
Property at all reasonable times to show the Property to potential buyers,
investors or Tenants or other parties; to do any other act or to inspect and
conduct tests in order to monitor Tenant's compliance with all applicable
environmental laws and all laws governing the presence and use of Hazardous
Materials; or for any other purpose Landlord deems necessary. Landlord shall
give Tenant prior notice of such entry, except in the case of an emergency.
Landlord may place customary "For Sale" or "For Lease" signs on the Property.
Section 5.08. Quiet Possession. If Tenant pays the rent and complies with
all other terms of this Lease, Tenant may occupy and enjoy the Property for the
full Lease Term, subject to the provisions of this Lease.
ARTICLE SIX: CONDITION OF PROPERTY; MAINTENANCE, REPAIRS AND ALTERATIONS
Section 6.01. Existing Conditions. Tenant accepts the Property in its
condition as of the execution of this Lease, subject to all recorded matters,
laws, ordinances, and governmental regulations and orders. Except as provided
herein, Tenant acknowledges that neither Landlord nor any agent or employee of
Landlord has made any representation as to the condition of the Property or the
suitability of the Property for Tenant's intended use. Tenant represents and
warrants that Tenant has made its own inspection of and inquiry regarding the
condition of the Property and is not relying on any representations of Landlord,
its agents or employees, or any Broker with respect thereto. If Landlord or
Landlord's Broker has provided a Property Information Sheet or other Disclosure
Statement regarding the Property, a copy is attached as an exhibit to this
Lease. Notwithstanding anything herein contained to the contrary, Landlord
represents to Tenant that the HVAC, electrical and plumbing systems are in
working order as of the date the Lease Term commences. In the event it is
determined that this representation has been violated, then, after written
notice from Tenant, Landlord shall have the option within ten (10) business days
after receiving such notice to either (a) elect to promptly, at Landlord's sole
cost and expense, rectify any such violation, or (b) terminate this Lease by
written notice to Tenant. In the event Tenant does not give to Landlord written
notice of the violation of the foregoing representations within thirty (30) days
from the date that the Lease Term commences, the correction of same shall be the
obligation of the Tenant at Tenant's sole cost and expense (provided, that any
work in connection with such correction shall be done at the direction and with
the approval of Landlord). Notwithstanding the foregoing, Landlord shall, at
Landlord's sole cost and expense, and not as a Common Area Expense, make any
structural alterations or modifications to the Property and Common Areas, if and
when required by any governmental agency pursuant any law, statute, rule or
regulation in effect on the date of this Lease; provided, however, that if such
alteration or modification is required as a result of Tenant's specific use of
or improvements to the Property, Tenant shall solely bear the cost of such
alteration or modification.
Section 6.02. Exemption of Landlord from Liability. Landlord shall not be
liable for any damage or injury to the person, business (or any loss of income
therefrom), goods, wares, merchandise or other property of Tenant, Tenant's
employees, invitees, customers or any other person in or about the Property,
whether such damage or injury is caused by or results from: (a) fire, steam,
electricity, water, gas or rain; (b) the breakage, leakage, obstruction or other
defects of pipes, sprinklers, wires, appliances, plumbing, air conditioning or
lighting fixtures or any other cause; (c) conditions arising in or about the
Property or upon other portions of the Project, or from other sources or places;
or (d) any act or omission of any other tenant of the Project. Landlord shall
not be liable for any such damage of injury even though the cause of or the
means of repairing such damage or injury are not accessible to Tenant. The
provisions of this Section 6.02 shall not, however, exempt Landlord from
liability for Landlord's gross negligence of willful misconduct.
Section 6.03. Landlord's Obligations. Subject to the provisions of Article
Seven (Damage or Destruction) and Article Eight (Condemnation), and except for
damage caused by any act or omission of Tenant, or Tenant's employees, agent,
contractors or invitees, Landlord, at its cost, shall be responsible for
structural repairs to the foundation, roof and structural portions of the
improvements on the Property; provided, that Tenant agrees to reimburse
Landlord, within thirty (30) days after request, for all costs paid by Landlord
for roof maintenance. Landlord shall not be obligated to make any repairs under
this Section 6.03 until a reasonable time after receipt of a written notice from
Tenant of the need for such repairs. Tenant waives the benefit of any present or
future law which might give Tenant the right to repair the Property at
Landlord's expense or to terminate this Lease because of the condition of the
Property or Landlord's failure to keep the Property in good order, condition or
repair.
Section 6.04. Tenant's Obligations.
(a) Except as provided in Section 6.03, Article Seven (Damage or
Destruction) and Article Eight (Condemnation), Tenant, at its sole cost, shall
keep all portions of the Property (including nonstructural, interior, and, if
not otherwise maintained by Landlord at its election, any and all components of
electrical, mechanical, plumbing, heating, ventilating and air conditioning
systems and facilities (individually, a "System", collectively, the "Systems")
located on the Property) in good order, condition and repair (including interior
repainting and refinishing, as needed). If Landlord elects to maintain the
Systems or the roof at the Property, Tenant shall pay or reimburse Landlord for
all costs Landlord incurs in connection with such maintenance as Common Area
Expenses as provided for in Section 4.05 above provided that Landlord may
utilize any reserves collected from Tenant under Section 4.05 and specifically
allocated to such costs. If any portion of the Property or any System or
equipment in the Property which Tenant is obligated to maintain (or reimburse
Landlord for the cost of maintenance in accordance herewith) cannot be fully
repaired or restored, Tenant shall promptly replace such portion of the Property
or System or equipment in the Property, regardless of whether the benefit of
such replacement extends beyond the Lease Term; but if the benefit or useful
life of such replacement, as determined by Landlord, extends beyond the Lease
Term (as the same may be extended in accordance herewith) the cost of such
replacement shall be prorated over such useful life, and Tenant shall be liable
only for that portion of the cost which is applicable to the Lease Term (as the
same may be extended). If requested by Landlord, Tenant shall maintain a
preventive maintenance contract acceptable to Landlord providing for the regular
inspection and maintenance of the heating and air conditioning system by a
licensed heating and air conditioning contractor. Upon Landlord's request,
Tenant shall provide Landlord with a copy of the preventive maintenance
contract, if applicable. If any part of the Property or the Project is damaged
by any act or omission of Tenant, Tenant shall pay Landlord the cost of
repairing or replacing such damaged property, whether or not Landlord would
otherwise be obligated to pay Landlord the cost of maintaining or repairing or
replacing such property. It is the intention of Landlord and Tenant that at all
times Tenant shall maintain the portions of the Property which Tenant is
obligated to maintain in an attractive, first-class and fully operative
condition.
(b) Tenant shall fulfill all of Tenant's obligations under this Section
6.04 at Tenant's sole expense. If Tenant fails to maintain, repair or replace
the Property as required by this Section 6.04, Landlord may, upon ten (10) days'
prior notice to Tenant (except that no notice shall be required in the case of
an emergency), enter the Property and perform such maintenance or repair
(including replacement, as needed) on behalf of Tenant. In such case, Tenant
shall reimburse Landlord for all costs incurred in performing such maintenance
or repair immediately upon demand.
Section 6.05. Alterations, Additions, and Improvements.
(a) Tenant shall not make any alterations, additions, or improvements to
the Property without Landlord's prior written consent, except for non-structural
alterations which do not exceed Ten Thousand and No/100 Dollars ($10,000.00) in
cost per Lease Term year and which are not visible from the outside of and which
do not affect any System in the building of which the Property is a part.
Landlord may require Tenant to provide demolition and/or lien and completion
bonds in form and amount satisfactory to Landlord. Tenant shall promptly remove
any alterations, additions or improvements constructed in violation of this
Paragraph 6.05(a) upon Landlord's written request. All alterations, additions,
and improvements shall be done in a good and workmanlike manner, in conformity
with all applicable laws and regulations, and by a contractor approved by
Landlord. Upon completion of any such work, Tenant shall provide Landlord with
"as built" plans, copies of all construction contracts, and proof of payment for
all labor and materials.
(b) Tenant shall pay when due all claims for labor and materials furnished
to the Property. Tenant shall give Landlord at least twenty (20) days' prior
written notice of the commencement of any work on the Property, regardless of
whether Landlord's consent to such work is required. Landlord may elect to
record and post notices of non-responsibility on the Property.
Section 6.06. Condition Upon Termination. Upon the termination of this
Lease, Tenant shall surrender the Property to Landlord, broom clean and in the
same condition as received except for ordinary wear and tear which Tenant was
not otherwise obligated to remedy under any provision of this Lease; provided,
however, that Tenant shall not be obligated to repair any damage which Landlord
is required to repair under Article Seven (Damage or Destruction). In addition,
Tenant shall complete the moveout responsibilities ("Tenant's Moveout
Responsibilities") set forth on Exhibit "C" attached hereto, and Landlord may
require Tenant to remove any alterations, additions or improvements (whether or
not made with Landlord's consent) prior to the expiration of this Lease and to
restore the Property to its prior condition, all at Tenant's expense. All
alterations, additions and improvements which Landlord has not required Tenant
to remove shall become Landlord's property and shall be surrendered to Landlord
upon the expiration or earlier termination of this Lease, except that Tenant may
remove any of Tenant's machinery or equipment which can be removed without
damage to the Property. Tenant shall repair, at Tenant's expense, any damage to
the Property caused by the removal of any such machinery or equipment. In no
event, however, shall Tenant remove any of the following materials or equipment
(which shall be deemed Landlord's property) without Landlord's prior written
consent: any power wiring or power panels; lighting or lighting fixtures; wall
coverings; drapes, blinds or other window coverings; carpets or other floor
coverings; heaters, air conditioners or any other heating or air conditioning
equipment; fencing or security gates; or other similar building operating
equipment and decorations. If Tenant requests in writing that Landlord do so,
Landlord shall notify Tenant at the time Landlord approves any alteration,
addition or improvement whether or not Tenant shall be required to remove the
same upon termination and such notice shall be binding upon the parties.
ARTICLE SEVEN: DAMAGE OR DESTRUCTION
Section 7.01. Partial Damage to Property.
(a) Tenant shall notify Landlord in writing immediately upon the occurrence
of any damage to the Property. If the Property is only partially damaged (i.e.,
less than fifty percent (50%) of the Property is untenantable as a result of
such damage or less than fifty percent (50%) of Tenant's operations are
materially impaired) and if the proceeds received by Landlord from the insurance
policies described in Paragraph 4.04(b) are sufficient to pay for the necessary
repairs, this Lease shall remain in effect and Landlord shall repair the damage
as soon as reasonably possible. Landlord may elect (but is not required) to
repair any damage to Tenant's fixtures, equipment, or improvements (unless
Landlord obtained insurance for such improvements pursuant to Section 4.04(b)
above and sufficient proceeds are available therefrom for such repair), and
Tenant shall pay Landlord the "deductible" amount under Landlord's insurance
policies as provided in Section 4.04(b).
(b) If the insurance proceeds received by Landlord are not sufficient to
pay the entire cost of repair, or if the cause of the damage is not covered by
the insurance policies which Landlord maintains under Paragraph 4.04(b),
Landlord may elect either to (i) repair the damage as soon as reasonably
possible, in which case this Lease shall remain in full force and effect, or
(ii) terminate this Lease as of the date the damage occurred. Landlord shall
notify Tenant within thirty (30) days after receipt of notice of the occurrence
of the damage whether Landlord elects to repair the damage or terminate this
Lease. If Landlord elects to repair the damage, Tenant shall pay Landlord the
"deductible amount" (if any) under Landlord's insurance policies as provided in
Section 4.04(b) and, if the damage was due to an act or omission of Tenant, or
Tenant's employees, agents, contractors or invitees, the difference between the
actual cost of repair and any insurance proceeds received by Landlord. If
Landlord elects to terminate this Lease, Tenant may elect to continue this Lease
in full force and effect, in which case Tenant shall repair any damage to the
Property and any building in which the Property is located. Tenant shall pay the
cost of such repairs, except that, subject to the terms of any deed of trust
encumbering the Property, upon satisfactory completion of such repairs, Landlord
shall deliver to Tenant any insurance proceeds received by Landlord for the
damage repaired by Tenant. Tenant shall give Landlord written notice of such
election within ten (10) days after receiving Landlord's termination notice.
(c) If the damage to the Property occurs during the last six (6) months of
this Lease Term and such damage will require more than thirty (30) days to
repair, either Landlord or Tenant may elect to terminate this Lease as of the
date the damage occurred, regardless of the sufficiency of any insurance
proceeds. The party electing to terminate this Lease shall give written
notification to the other party of such election within thirty (30) days after
Tenant's notice to Landlord of the occurrence of the damage.
Section 7.02. Substantial or Total Destruction. If the Property is
substantially or totally destroyed by any cause whatsoever (i.e., the damage to
the Property is greater than partial damage as described in Section 7.01), and
regardless of whether Landlord receives any insurance proceeds, this Lease shall
terminate as of the date the destruction occurred. Notwithstanding the preceding
sentence, if the Property can be rebuilt within twelve (12) months after the
date of destruction, Landlord may elect to rebuild the Property at Landlord's
own expense, in which case this Lease shall remain in full force and effect.
Landlord shall notify Tenant of such election within thirty (30) days after
Tenant's notice of the occurrence of total or substantial destruction. If
Landlord so elects, Landlord shall rebuild the Property at Landlord's sole
expense, except that if the destruction was caused by an act or omission of
Tenant, Tenant shall pay Landlord the difference between the actual cost of
rebuilding and any insurance proceeds received by Landlord, including the
"deductible" amount (if any) under Landlord's insurance policies as provided in
Section 4.04(b).
Section 7.03. Temporary Reduction of Rent. If the Property is destroyed or
damaged and Landlord or Tenant repairs or restores the Property pursuant to the
provisions of this Article Seven, any rent payable during the period of such
damage, repair and/or restoration shall be reduced according to the degree, if
any, to which Tenant's use of the Property is impaired. However, the reduction
shall not exceed the sum of one year's payment of rent. Except for such possible
reduction in rent, Tenant shall not be entitled to any compensation, reduction,
or reimbursement from Landlord as a result of any damage, destruction, repair,
or restoration of or to the Property.
Section 7.04. Waiver. Tenant waives the protection of any statute, code or
judicial decision which grants a tenant the right to terminate a lease in the
event of the substantial or total destruction of the leased property. Tenant
agrees that the provisions of Section 7.02 above shall govern the rights and
obligations of Landlord and Tenant in the event of any substantial or total
destruction of the Property.
ARTICLE EIGHT: CONDEMNATION
If all or any portion of the Property is taken under the power of eminent
domain or sold under the threat of that power (all of which are called
"Condemnation"), this Lease shall terminate as to the part taken or sold on the
date the condemning authority takes title or possession, whichever occurs first.
If more than twenty percent (20%) of the floor area of the building in which the
Property is located, or which is located on the Property, is taken, either
Landlord or Tenant may terminate this Lease as of the date the condemning
authority takes title or possession, by delivering written notice to the other
within ten (10) days after receipt of written notice of such taking (or in the
absence of such notice, within ten (10) days after the condemning authority
takes title or possession). If neither Landlord nor Tenant terminates this
Lease, this Lease shall remain in effect as to the portion of the Property not
taken, except that the Base Rent and Additional Rent shall be reduced in
proportion to the reduction in the floor area of the Property. Any Condemnation
award of payment shall be distributed in the following order: (a) first, to any
ground lessor, mortgagee or beneficiary under a dead of trust encumbering the
Property, the amount of its interest in the Property; (b) second, to Tenant,
only the amount of any award specifically designated for loss of or damage to
Tenant's trade fixtures or removable personal property; and (c) third, to
Landlord, the remainder of such award, whether as compensation for reduction in
the value of the leasehold, the taking of the fee, or otherwise. If this Lease
is not terminated, Landlord shall repair any damage to the Property caused by
the Condemnation, except that Landlord shall not be obligated to repair any
damage for which Tenant has been reimbursed by the condemning authority. If the
severance damages received by Landlord are not sufficient to pay for such
repair, Landlord shall have the right to either terminate this Lease or make
such repair at Landlord's expense. Landlord and Tenant waive the protection of
California Code of Civil Procedure Section 1265.130 allowing either party to
petition the Superior Court to terminate this Lease in the event of a partial
taking of the Property by Condemnation.
ARTICLE NINE: ASSIGNMENT AND SUBLETTING
Section 9.01. Landlord's Consent Required. No portion of the Property or of
Tenant's interest in this Lease may be acquired by any other person or entity,
whether by sale, assignment, mortgage, sublease, transfer, operation of law, or
act of Tenant, without Landlord's prior written consent (which consent shall not
be unreasonably withheld or delayed), except as provided in Section 9.02 below.
In connection with any request for consent to a sublease or assignment, Landlord
shall not unreasonably withhold its consent to a change in the use permitted
under this Lease. Landlord has the right to grant or withhold its consent as
provided in Section 9.05 below. Any attempted transfer without consent shall be
void and shall constitute a material breach of this Lease under Section
10.02(c). If Tenant is a partnership or limited liability company, any
cumulative transfer of more than forty percent (40%) of the partnership or
membership interests shall constitute a transfer of Tenant's interest under this
Lease requiring Landlord's consent under Article 9 of this Lease. If Tenant is a
corporation, any change in the ownership of a controlling interest of the voting
stock of the corporation shall constitute a transfer of Tenant's interest under
this Lease requiring Landlord's consent under Article 9 of this Lease.
Section 9.02. Tenant Affiliate. Tenant may assign this Lease or sublease
the Property, without Landlord's consent, to any corporation which controls, is
controlled by or is under common control with Tenant, or to any corporation
resulting from the merger of or consolidation with Tenant, provided that the
successor entity's then applicable net worth is equal to or greater than that of
Tenant as of the date hereof ("Tenant's Affiliate"). In such case, any Tenant's
Affiliate shall assume in writing all of Tenant's obligations under this Lease.
Section 9.03. No Release of Tenant. No transfer permitted by this Article
Nine, whether with or without Landlord's consent, shall release Tenant or change
Tenant's primary liability to pay the rent and to perform all other obligations
of Tenant under this Lease. Landlord's acceptance of rent from any other person
is not a waiver of any provision of this Article Nine. Consent to one transfer
is not a consent to any subsequent transfer. If Tenant's transferee defaults
under this Lease, Landlord may proceed directly against Tenant without pursuing
remedies against the transferee. Landlord may consent to subsequent assignments
or modifications of this Lease by Tenant's transferee, without notifying Tenant
or obtaining its consent. Such action shall not relieve Tenant's liability under
this Lease.
Section 9.04. Right to Recapture. Notwithstanding anything to the contrary
contained in this Article 9, Landlord shall have the option, by giving written
notice to Tenant within thirty (30) days after receipt of any request for
consent to an assignment or sublease to recapture the subject space from Tenant.
Such recapture notice shall cancel and terminate this Lease with respect to the
subject space as of the effective date of the proposed assignment or sublease as
stated in the Tenant's request for consent. In the event of a recapture by
Landlord, if this Lease shall be canceled with respect to less than the entire
Property, the Base Rent reserved herein shall be prorated on the basis of the
number of rentable square feet retained by Tenant in proportion to the number of
rentable square feet contained in the Property, and this Lease as so amended
shall continue thereafter in full force and effect, and upon request of either
party, the parties shall execute written confirmation of the same. If Landlord
declines, or fails to elect in a timely manner to recapture the subject space
under this Section 9.04, then, provided Landlord has consented to the proposed
assignment or sublease, Tenant shall be entitled to proceed with the assignment
of this Lease or sublease of the subject space to the proposed transferee,
subject to provisions of Sections 9.03, 9.05 and 9.06 of this Lease.
Section 9.05. Landlord's Consent.
(a) Tenant's request for consent to any such sublease, assignment or other
transfer shall set forth in writing the details of the proposed sublease,
assignment or other transfer, including the name, business and financial
condition of the prospective transferee (including copies of current financial
statements of the prospective transferee), financial details of the proposed
transaction (e.g., the term of and the rent, security deposit and any other
consideration payable under such proposed assignment, sublease or transfer), and
any other information Landlord reasonably may request. Tenant shall reimburse
Landlord for all expenses, including reasonable attorneys' fees in accordance
with Section 12.02 below, incurred in connection with any proposed assignment or
subletting hereunder. Landlord and Tenant hereby agree that, in determining
whether to grant or withhold consent to such proposed sublease, assignment or
other transfer, Landlord may consider, without limitation, the following
factors, which Landlord and Tenant acknowledge and agree are reasonable: (i) the
business of the proposed assignee, sublessee or transferee and the proposed use
of the Property; (ii) the financial strength and the business reputation of the
proposed assignee, sublessee or transferee; (iii) the proposed use, storage,
treatment, generation or production of any Hazardous Materials by the proposed
assignee, sublessee or transferee; and (iv) Tenant's compliance with all of its
obligations under this Lease. Notwithstanding any provisions of this Lease, or
any present or future statute, law, rule or ordinance, to the contrary, Landlord
and Tenant hereby expressly agree that if a court of competent jurisdiction
determines that Landlord unreasonably withheld consent to a proposed sublease,
assignment or other transfer by Tenant, then Tenant's sole and exclusive remedy
for such breach by Landlord shall be limited to termination of this Lease as of
the date of such court determination, and Tenant hereby expressly waives the
right to recover any monetary damages of whatever kind for such breach except to
the extent provided in Section 12.01 of this Lease.
(b) If Tenant assigns or subleases, the following shall apply:
(i) Tenant shall pay to Landlord as Additional Rent under this Lease
the Landlord's Share (stated in Section 1.13) of the Profit (defined below)
on such transaction as and when received by Tenant, unless Landlord
gives written notice to Tenant and the assignee or subtenant that
Landlord's Share shall be paid by the assignee or subtenant to Landlord
directly. The "Profit" means (A) all amounts paid to Tenant for such
assignment or sublease, including "key" money, monthly rent in excess of
the monthly rent payable under this Lease, and all fees and other
consideration paid for the assignment or sublease, including fees under any
collateral agreements, less (B) reasonable costs and expenses directly
incurred by Tenant in connection with the execution and performance of such
assignment or sublease including reasonable attorneys' fees (not to exceed
$1,500), real estate broker's commissions and renovation or construction of
tenant improvements required under such assignment or sublease. Tenant is
entitled to recover such reasonable costs and expenses before Tenant is
obligated to pay the Landlord's Share to Landlord. The Profit in the case
of a sublease of less than all the Property is the rent allocable to the
subleased space as a percentage on a square footage basis.
(ii) Tenant shall provide Landlord a written statement certifying
all amounts to be paid from any assignment or sublease of the Property
within thirty (30) days after the transaction documentation is signed,
and Landlord may inspect Tenant's books and records to verify the accuracy
of such statement. On written request, Tenant shall promptly furnish to
Landlord copies of all the transaction documentation, all of which shall
be certified by Tenant to be complete, true and correct. Landlord's receipt
of Landlord's Share shall not be a consent to any further assignment or
subletting. The breach of Tenant's obligations under this Paragraph
9.05(b) shall be a material default of this Lease.
Section 9.06. No Merger. No merger shall result from Tenant's sublease of
the Property under this Article Nine, Tenant's surrender of this Lease or the
termination of this Lease in any other manner. In any such event, Landlord may
terminate any or all subtenancies or succeed to the interest of Tenant as
sublandlord under any or all subtenancies.
ARTICLE TEN: DEFAULTS; REMEDIES
Section 10.01. Covenants and Conditions. Tenant's performance of each of
Tenant's obligations under this Lease is a condition as well as a covenant.
Tenant's right to continue in possession of the Property is conditioned upon
such performance. Time is of the essence in the performance of all covenants and
conditions.
Section 10.02. Defaults. Tenant shall be in material default under this
Lease:
(a) If Tenant abandons the Property or if Tenant's vacation of the Property
results in the cancellation of any insurance described in Section 4.04;
(b) If Tenant fails to pay rent or any other charge within three (3) days
after the date due;
(c) If Tenant fails to perform any of Tenant's non-monetary obligations
under this Lease for a period of thirty (30) days after written notice from
Landlord; provided that if more than five (5) days are required to complete such
performance, Tenant shall not be in default if Tenant commences such performance
within the five (5) day period and thereafter diligently pursues its completion.
However, Landlord shall not be required to give such notice if Tenant's failure
to perform constitutes a non-curable breach of this Lease. The notice required
by this Paragraph is intended to satisfy any and all notice requirements imposed
by law on Landlord and is not in addition to any such requirement.
(d) (i) If Tenant makes a general assignment or general arrangement for the
benefit of creditors; (ii) if a petition for adjudication of bankruptcy or for
reorganization or rearrangement is filed by or against Tenant and is not
dismissed within thirty (30) days; (iii) if a trustee or receiver is appointed
to take possession of substantially all of Tenant's assets located at the
Property or of Tenant's interest in this Lease and possession is not restored to
Tenant within thirty (30) days; or (iv) if substantially all of Tenant's assets
located at the Property or of Tenant's interest in this Lease is subjected to
attachment, execution or other judicial seizure which is not discharged within
thirty (30) days. If a court of competent jurisdiction determines that any of
the acts described in this subparagraph (d) is not a default under this Lease,
and a trustee is appointed to take possession (or if Tenant remains a debtor in
possession) and such trustee or Tenant transfers Tenant's interest hereunder,
then Landlord shall receive, as Additional Rent, the excess, if any, of the rent
(or any other consideration) paid in connection with such assignment or sublease
over the rent payable by Tenant under this Lease.
(e) If any guarantor of this Lease revokes or otherwise terminates, or
purports to revoke or otherwise terminate, any guaranty of all or any portion of
Tenant's obligations under this Lease. Unless otherwise expressly provided, no
guaranty of this Lease is revocable.
Section 10.03. Remedies. On the occurrence of any material default by
Tenant, Landlord may, at any time thereafter, with or without notice or demand
and without limiting Landlord in the exercise of any right or remedy which
Landlord may have:
(a) Terminate Tenant's right to possession of the Property by any lawful
means, in which case this Lease shall terminate and Tenant shall immediately
surrender possession of the Property to Landlord. In such event, Landlord shall
be entitled to recover from Tenant all damages incurred by Landlord by reason of
Tenant's default, including (i) the worth at the time of the award of the unpaid
Base Rent, Additional Rent and other charges which Landlord had earned at the
time of the termination, (ii) the worth at the time of the award of the amount
by which the unpaid Base Rent, Additional Rent and other charges which Landlord
would have earned after termination until the time of the award exceeds the
amount of such rental loss that Tenant proves Landlord could have reasonably
avoided; (iii) the worth at the time of the award of the amount by which the
unpaid Base Rent, Additional Rent and other charges which Tenant would have paid
for the balance of the Lease Term after the time of award exceeds the amount of
such rental loss that Tenant proves Landlord could have 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 which in the ordinary course of things would be likely to result
therefrom, including, but not limited to, any costs or expenses Landlord incurs
in maintaining or preserving the Property after such default, the cost of
recovering possession of the Property, expenses of reletting, including
necessary renovation or alteration of the Property. Landlord's reasonable
attorneys' fees incurred in connection therewith, and any real estate commission
paid or payable. As used in subparts (i) and (ii) above, the "worth at the time
of the award" is computed by allowing interest on unpaid amounts at the rate of
fifteen percent (15%) per annum, or such lesser amount as may then be the
maximum lawful rate. As used in subpart (iii) above, the "worth at the time of
the award" is computed by discounting such amount at the discount rate of the
Federal Reserve Bank of San Francisco at the time of the award, plus one percent
(1%). If Tenant has abandoned the Property, Landlord shall have the option of
(i) retaking possession of the Property and recovering from Tenant the amount
specified in this Paragraph 10.03(a), or (ii) proceeding under Paragraph
10.03(b);
(b) Maintain Tenant's right to possession, in which case this Lease shall
continue in effect whether or not Tenant has abandoned the Property. In such
event, Landlord shall be entitled to enforce all Landlord's rights and remedies
under this Lease, including the right to recover the rent as it becomes due;
(c) Pursue any other remedy now or hereafter available to Landlord under
the laws or judicial decisions of the state in which the Property is located.
Section 10.04. Repayment of "Free" Rent. If this Lease provides for a
postponement of any monthly rental payments, a period of "free" rent or other
rent concession, such postponed rent or "free" rent is called the "Abated Rent".
Tenant shall be credited with having paid all of the Abated Rent on the
expiration of the Lease Term only if Tenant has fully, faithfully, and
punctually performed all of Tenant's obligations hereunder, including the
payment of all rent (other than the Abated Rent) and all other monetary
obligations and the surrender of the Property in the physical condition required
by this Lease. Tenant acknowledges that its right to receive credit for the
Abated Rent is absolutely conditioned upon Tenant's full, faithful and punctual
performance of its obligations under this Lease. If Tenant defaults and does not
cure within any applicable grace period, the Abated Rent shall immediately
become due and payable in full and this Lease shall be enforced as if there were
no such rent abatement or other rent concession. In such case Abated Rent shall
be calculated based on the full rent payable under this Lease at the time the
abatement applied.
Section 10.05. Cumulative Remedies. Landlord's exercise of any right or
remedy shall not prevent it from exercising any other right or remedy.
ARTICLE ELEVEN: PROTECTION OF LENDERS
Section 11.01. Subordination. This Lease shall be subordinate to any
existing ground lease, deed of trust or mortgage, and Landlord shall have the
right to subordinate this Lease to any ground lease, deed of trust or mortgage
hereafter encumbering the Property, any advances made on the security thereof
and any renewals, modifications, consolidations, replacements or extensions
thereof, whenever made or recorded. Tenant shall cooperate with Landlord and any
lender which is acquiring a security interest in the Property or this Lease.
Tenant shall execute such further documents and assurances as such lender may
require, provided that Tenant's obligations under this Lease shall not be
increased in any material way (the performance of ministerial acts shall not be
deemed material), and Tenant shall not be deprived of its rights under this
Lease. Tenant's right to quiet possession of the Property during the Lease Term
shall not be disturbed by any future beneficiary under a deed of trust or
mortgagee under a mortgage if Tenant pays the rent and performs all of Tenant's
obligations under this Lease and is not otherwise in default. If any ground
lessor, beneficiary or mortgagee elects to have this Lease prior to the lien of
its ground lease, deed of trust or mortgage and gives written notice thereof to
Tenant, this Lease shall be deemed prior to such ground lease, deed of trust or
mortgage whether this Lease is dated prior or subsequent to the date of said
ground lease, deed of trust or mortgage or the date of recording thereof.
Landlord shall use commercially reasonably efforts to obtain and deliver to
Tenant a commercially reasonably non-disturbance agreement from Landlord's
mortagee(s), if any, for the benefit of Tenant.
Section 11.02. Attornment. If Landlord's interest in the Property is
acquired by any ground lessor, beneficiary under a deed of trust, mortgagee, or
purchaser at a foreclosure sale, then at such person's or entity's election,
Tenant shall attorn to the transferee of or successor to Landlord's interest in
the Property and recognize such transferee or successor as Landlord under this
Lease. Tenant waives the protection of any statute or rule of law which gives or
purports to give Tenant any right to terminate this Lease or surrender
possession of the Property upon the transfer of Landlord's interest.
Section 11.03. Signing of Documents. Tenant shall sign and deliver any
instrument or documents necessary or appropriate to evidence any such attornment
or subordination or agreement to do so. If Tenant fails to do so within ten (10)
days after written request, Tenant hereby makes, constitutes and irrevocably
appoints Landlord, or any transferee or successor of Landlord, the
attorney-in-fact of Tenant to execute and deliver any such instrument or
document.
Section 11.04. Estoppel Certificates.
(a) Upon Landlord's written request, Tenant shall execute, acknowledge and
deliver to Landlord a written statement certifying: (i) that none of the terms
or provisions of this Lease have been changed (or if they have been changed,
stating how they have been changed); (ii) that this Lease has not been cancelled
or terminated; (iii) the last date of payment of the Base Rent and other charges
and the time period covered by such payment; (iv) that Landlord is not in
default under this Lease (or, if Landlord is claimed to be in default, stating
why); and (v) such other representations or information with respect to Tenant
or this Lease as Landlord may reasonably request or which any prospective
purchaser or encumbrancer of the Property may require. Tenant shall deliver such
statement to Landlord within ten (10) days after Landlord's request. Landlord
may give any such statement by Tenant to any prospective purchaser or
encumbrancer of the Property. Such purchaser or encumbrancer may rely
conclusively upon such statement as true and correct.
(b) If Tenant does not deliver such statement to Landlord within such ten
(10) day period, Landlord, and any prospective purchaser or encumbrancer, may
conclusively presume and rely upon the following facts: (i) that the terms and
provisions of this Lease have not been changed except as otherwise represented
by Landlord; (ii) that this Lease has not been cancelled or terminated except as
otherwise represented by Landlord; (iii) that not more than one month's Base
Rent or other charges have been paid in advance; and (iv) that Landlord is not
in default under this Lease. In such event, Tenant shall be estopped from
denying the truth of such facts.
Section 11.05. Tenant's Financial Condition. Within ten (10) days after
written request from Landlord, Tenant shall deliver to Landlord such financial
statements as Landlord reasonably requires to verify the net worth of Tenant or
any assignee, subtenant, or guarantor of Tenant. In addition, Tenant shall
deliver to any lender designated by Landlord any financial statements required
by such lender to facilitate the financing or refinancing of the Property.
Tenant represents and warrants to Landlord that each financial statement is a
true and accurate statement as of the date of such statement. All financial
statements shall be confidential and shall be used only for the purposes set
forth in this Lease.
ARTICLE TWELVE: LEGAL COSTS
Section 12.01. Legal Proceedings. If Tenant or Landlord shall be in breach
or default under this Lease, such party (the "Defaulting Party") shall reimburse
the other party (the "Nondefaulting Party") upon demand for any costs or
expenses that the Nondefaulting Party incurs in connection with any breach or
default of the Defaulting Party under this Lease, whether or not suit is
commenced or judgment entered. Such costs shall include legal fees and costs
incurred for the negotiation of a settlement, enforcement of rights or
otherwise. Furthermore, if any action for breach of or to enforce the provisions
of this Lease is commenced, the court in such action shall award to the party in
whose favor a judgment is entered, a reasonable sum as attorneys' fees and
costs. The losing party in such action shall pay such attorneys' fees and costs.
Tenant shall also indemnify Landlord against and hold Landlord harmless from all
costs, expenses, demands and liability Landlord may incur if Landlord becomes or
is made a party to any claim or action (a) instituted by Tenant against any
third party, or by any third party against Tenant (unless such claim or action
is a direct result of Landlord's negligence or willful misconduct), or by or
against any person holding any interest under or using the Property by license
of or agreement with Tenant; (b) for foreclosure of any lien for labor or
material furnished to or for Tenant or such other person; (c) otherwise arising
out of or resulting from any act or transaction of Tenant or such other person;
or (d) necessary to protect Landlord's interest under this Lease in a bankruptcy
proceeding, or other proceeding under Title 11 of the United States Code, as
amended. Tenant shall defend Landlord against any such claim or action at
Tenant's expense with counsel reasonably acceptable to Landlord or, at
Landlord's election, Tenant shall reimburse Landlord for any legal fees or costs
Landlord incurs in any such claim or action.
Section 12.02. Landlord's Consent. Tenant shall pay Landlord's reasonable
attorneys' fees incurred in connection with Tenant's request for Landlord's
consent under Article Nine (Assignment and Subletting), or in connection with
any other act which Tenant proposes to do and which requires Landlord's consent.
ARTICLE THIRTEEN: MISCELLANEOUS PROVISIONS
Section 13.01. Non-Discrimination. Tenant promises, and it is a condition
to the continuance of this Lease, that there will be no discrimination against,
or segregation of, any person of group of persons on the basis of race, color,
sex, creed, national origin or ancestry in the leasing, subleasing, transferring
occupancy, tenure or use of the Property or any portion thereof.
Section 13.02. Landlord's Liability; Certain Duties.
(a) As used in this Lease, the term "Landlord" means only the current owner
or owners of the fee title to the Property or Project or the leasehold estate
under a ground lease of the Property or Project at the time in question. Each
Landlord is obligated to perform the obligations of Landlord under this Lease
only during the time such Landlord owns such interest or title. Any Landlord who
transfers its title or interest is relieved of all liability with respect to the
obligations of Landlord under this Lease to be performed on or after the date of
transfer. However, each Landlord shall deliver to its transferee all funds that
Tenant previously paid if such funds have not yet been applied under the terms
of this Lease.
(b) Tenant shall give written notice of any failure by Landlord to perform
any of its obligations under this Lease to Landlord and to any ground lessor,
mortgagee or beneficiary under any deed of trust encumbering the Property whose
name and address have been furnished to Tenant in writing. Landlord shall not be
in default under this Lease unless Landlord (or such ground lessor, mortgagee or
beneficiary) fails to cure such non-performance within thirty (30) days after
receipt of Tenant's notice. However, if such non-performance reasonably requires
more than thirty (30) days to cure, Landlord shall not be in default if such
cure is commenced within such thirty (30) day period and thereafter diligently
pursued to completion.
(c) Notwithstanding any term or provision herein to the contrary, the
liability of Landlord for the performance of its duties and obligations under
this Lease is limited to Landlord's interest in the Property and the Project,
and neither the Landlord nor its partners, shareholders, officers or other
principals shall have any personal liability under this Lease.
Section 13.03. Severability. A determination by a court of competent
jurisdiction that any provision of this Lease or any part thereof is illegal or
unenforceable shall not cancel or invalidate the remainder of such provision or
this Lease, which shall remain in full force and effect.
Section 13.04. Interpretation. The captions of the Articles or Sections of
this Lease are to assist the parties in reading this Lease and are not a part of
the terms or provisions of this Lease. Whenever required by the context of this
Lease, the singular shall include the plural and the plural shall include the
singular. The masculine, feminine and neuter genders shall each include the
other. In any provision relating to the conduct, acts or omissions of Tenant,
the term "Tenant" shall include Tenant's agents, employees, contractors,
invitees, successors or others using the Property with Tenant's expressed or
implied permission.
Section 13.05. Incorporation of Prior Agreements; Modifications. This Lease
is the only agreement between the parties pertaining to the lease of the
Property and no other agreements are effective. All amendments to this Lease
shall be in writing and signed by all parties. Any other attempted amendment
shall be void.
Section 13.06. Notices. All notices required or permitted under this Lease
shall be in writing and shall be personally delivered or sent by certified mail,
return receipt requested, postage prepaid. Notices to Tenant shall be delivered
to the address specified in Section 1.03 above, except that upon Tenant's taking
possession of the Property, the Property shall be Tenant's address for notice
purposes. Notices to Landlord shall be delivered to the address specified in
Section 1.02 above. All notices shall be effective upon delivery. Either party
may change its notice address upon written notice to the other party.
Section 13 07. Waivers. All waivers must be in writing and signed by the
waiving party. Landlord's failure to enforce any provision of this Lease or its
acceptance of rent shall not be a waiver and shall not prevent Landlord from
enforcing that provision or any other provision of this Lease in the future. No
statement on a payment check from Tenant or in a letter accompanying a payment
check shall be binding on Landlord. Landlord may, with or without notice to
Tenant, negotiate such check without being bound to the conditions of such
statement.
Section 13.08. No Recordation. Tenant shall not record this Lease without
prior written consent from Landlord. If Landlord consents to such recording,
Tenant shall pay all taxes and recording fees in connection therewith.
Section 13.09. Binding Effect; Choice of Law. This Lease binds any party
who legally acquires any rights or interest in this Lease from Landlord or
Tenant. However, Landlord shall have no obligation to Tenant's successor unless
the rights or interests of Tenant's successor are acquired in accordance with
the terms of this Lease. The laws of the state in which the Property is located
shall govern this Lease.
Section 13.10. Corporate Authority; Partnership or Limited Liability
Company Authority. If Tenant is a corporation, each person signing this Lease on
behalf of Tenant represents and warrants that he or she has full authority to do
so and that this Lease binds the corporation. Upon Landlord's request, Tenant
shall deliver to Landlord a certified copy of a resolution of Tenant's Board of
Directors authorizing the execution of this Lease or other evidence of such
authority reasonably acceptable to Landlord. If Tenant is a partnership or
limited liability company, each person or entity signing this Lease for Tenant
represents and warrants that he, she or it is a general partner of the
partnership or member of the limited liability company, as applicable, that he,
she or it has full authority to sign for the partnership or limited liability
company, as applicable, and that this Lease binds the partnership and all
general partners of the partnership or limited liability company, as applicable.
Tenant shall given written notice to Landlord of any general partner's or
member's withdrawal or addition. Within thirty (30) days after this Lease is
signed, Tenant shall deliver to Landlord a copy of Tenant's recorded statement
of partnership or certificate of limited partnership or articles of
organization, as applicable.
Section 13.11. Joint and Several Liability. All parties signing this Lease
as Tenant shall be jointly and severally liable for all obligations of Tenant.
The parties acknowledge that so long as Gish Biomedical, Inc., a California
corporation ("Gish"), is the sole tenant under this Lease, the foregoing joint
and several liability provision does not apply. However, in the event that
another entity or individual is joined with Gish as a tenant under this Lease or
in the event that Gish assigns its interest under this Lease to more than one
party, than the joint and several liability provisions of this Section shall
apply.
Section 13.12. Force Majeure. If either party cannot perform any of its
obligations due to events beyond its control, the time provided for performing
such obligations shall be extended by a period of time equal to the duration of
such events; provided, however, that nothing in this Section shall excuse Tenant
from the payment of rent and any other charges required to be paid hereunder,
except as otherwise expressly provided in this Lease. Events beyond the parties'
control include, but are not limited to, acts of God, war, civil commotion,
labor disputes, strikes, fire, flood or other casualty, shortages of labor or
material, government regulation or restriction and weather conditions.
Section 13.13. Execution of Lease. This Lease may be executed in
counterparts and, when all counterpart documents are executed, the counterparts
shall constitute a single binding instrument. Landlord's delivery of this Lease
to Tenant shall not be deemed to be an offer to lease and shall not be binding
upon either party until executed and delivered by both parties.
Section 13.14. Survival. All representations and warranties of Landlord and
Tenant shall survive the termination of this Lease.
ARTICLE FOURTEEN: BROKERS
Except with respect to the brokers named in Section 1.09 of this Lease,
Tenant hereby represents and warrants to Landlord that it has not entered into
any agreement or incurred any obligation which might result in the obligation to
pay any brokerage commission, finder's fee or other compensation with respect to
this Lease, and Tenant agrees to indemnify and hold Landlord harmless from and
against any losses, damages, costs or expenses (including, without limitation,
attorney's fees) incurred by the other by reason of any breach or inaccuracy of
such representation or warranty.
ARTICLE FIFTEEN: OTHER PROVISIONS
Section 15.01. Confidentiality. Tenant agrees that except as required by
law, it shall keep confidential, and shall not disclose to any third party, the
terms, provisions and contents of this Lease, or any information relating to
this Lease except as reasonably necessary in the course of judicial proceedings
or as required by any governmental entity.
Section 15.02. Landlord's Liability. Notwithstanding anything to the
contrary contained in the Lease, Tenant agrees that its sole and exclusive
remedy shall be against Landlord's interest in the Project and that the
obligations of Landlord under the Lease do not constitute personal obligations
of the individual partners, whether general or limited, directors, officers,
shareholders or trustees of Landlord, and Tenant shall not seek recourse against
the individual partners, directors, officers, shareholders or trustees of
Landlord or any of their personal assets for satisfaction of any liability with
respect to the Lease. Notwithstanding anything to the contrary contained in this
Lease, in no event shall Landlord be liable under any circumstances for any
consequential damages, including without limitation, lost profits.
ARTICLE SIXTEEN: TENANT IMPROVEMENTS Prior to the Commencement Date, Landlord
shall, at Landlord's sole cost and expense, using building standard materials,
(i) install new carpet in the office are of the Property, and (ii) paint the
interior walls of the office area of the Property.
ARTICLE SEVENTEEN: OPTION TO EXTEND
Section 17.01. Landlord hereby grants to Tenant one (1) option (the
"Option") to extend the term of this Lease for five (5) years (the "Extension
Period"), on the same terms and conditions as set forth in this Lease (except
that there shall be no further tenant improvements or additional option to
extend the Extension Period) but at an increased rent as set forth in Section
17.03 below. The Option shall be exercised only by written notice delivered to
Landlord no more than two hundred forty (240) days and no later than one hundred
and eighty (180) days prior to the expiration of the Lease Term. If Tenant fails
to deliver to Landlord written notice of the exercise of the Option on or before
such date, the Option shall lapse, and there shall be no further right to extend
the term of this Lease. The Option shall be exercisable by Tenant only on the
express condition that (i) at the time of the exercise, and at all times prior
to the commencement of the Extension Period, Tenant shall not be in material
default under any of the provisions of this Lease, and (ii) Tenant shall not
have been ten (10) or more days late in the payment of Base Rent more than once
during any twelve (12) consecutive month period during the Lease Term.
Section 17.02. If Tenant subleases any portion of the Property or assigns
or otherwise transfers any interest under this Lease to an entity other than a
Tenant Affiliate prior to the exercise of the Option, the Option shall lapse. If
Tenant subleases any portion of the Property or assigns or otherwise transfers
any interest of Tenant under this Lease to any person or entity after the
exercise of the Option but prior to the commencement of the Extension Period
(whether with or without Landlord's consent), the Option shall lapse and the
term of this Lease shall expire as if such Option were not exercised.
Notwithstanding anything to the contrary set forth in this Section 17.02, the
Option shall not lapse if any such sublease, assignment or other transfer is to
an entity which controls, is controlled by or is under common control with
Tenant.
Section 17.03. Base Rent for the Property shall be increased on the first
day of the Extension Period to an amount equal to the "fair rental value" of the
Property as of the first day of the Extension Period (which fair rental value
determination may include increases in rent during the Extension Period and
percentage rent amounts), which fair rental value shall be determined by
Landlord in its sole but reasonable discretion, after evaluating, among other
things, the rents at similar buildings in the same general geographic area, but
in no event shall the Base Rent be less than the then current Base Rent being
paid by Tenant. Landlord shall notify Tenant in writing of such determination of
fair rental value within thirty (30) days after Landlord's receipt of Tenant's
notice exercising the Option. If Tenant shall dispute Landlord's determination
of fair rental value for the Property, then Landlord and Tenant shall negotiate
in good faith to arrive at a mutually agreeable Base Rent within thirty (30)
days after Tenant's receipt of Landlord's statement. If the parties cannot agree
within such thirty (30) day period, then Tenant shall have the right to submit
the issue of Landlord's reasonableness (but not the fair rental value) for
neutral binding arbitration (and not by court action) to the American
Arbitration Association in accordance with the rules of such Association then in
effect. Tenant shall exercise such right of arbitration by delivering written
notice of such election within thirty (30) days after receipt of Landlord's
notice of fair rental value. If the arbitrators shall decide that Landlord's
determination of fair rental value was reasonable, then fair rental value shall
be the amount previously determined by Landlord. If the arbitrators shall
determine that Landlord acted unreasonably, then Landlord shall redetermine the
fair rental value in its sole but reasonable discretion, provided that Tenant
shall again have the right to challenge Landlord's reasonableness in the manner
set forth above. In no event shall the arbitrators be permitted to determine
rental value under this Lease. The decision of the arbitrators shall be binding
upon both parties. Each party shall share equally the cost of the arbitration
process.
Landlord and Tenant have signed this Lease at the place and on the dates
specified adjacent to their signatures below and have initialed all Riders which
are attached to or incorporated by reference in this Lease.
"LANDLORD"
Signed on December 4, 2000 BUCKHEAD INDUSTRIAL PROPERTIES, INC.,
----------------
a Maryland corporation
By: /s/ John Powell
--------------------------
Its: Investment Officer
--------------------------
By:
--------------------------
Its:
--------------------------
"TENANT"
Signed on November 28, 2000 GISH BIOMEDICAL, INC.
-----------------
a California corporation
By: /s/ Kelly D. Scott
--------------------------
Its: President
--------------------------
By: /s/ Les Taeger
--------------------------
Its: /s/Chief Financial Officer
--------------------------
IN ANY REAL ESTATE TRANSACTION, IT IS RECOMMENDED THAT YOU CONSULT WITH A
PROFESSIONAL, SUCH AS A CIVIL ENGINEER, INDUSTRIAL HYGIENIST OR OTHER PERSON
WITH EXPERIENCE IN EVALUATING THE CONDITION OF THE PROPERTY, INCLUDING THE
POSSIBLE PRESENCE OF ASBESTOS, HAZARDOUS MATERIALS AND UNDERGROUND STORAGE
TANKS.
ADDENDUM
This Addendum to Industrial Real Estate Lease (Multi-Tenant Facility)
(this "Addendum") is hereby incorporated into the Industrial Real
Estate Lease (Multi-Tenant Facility) dated as of November 28, 2000 (the
"Lease"), by and between Buckhead Industrial Properties, Inc., a
Maryland corporation, as Landlord, and Gish Biomedical, Inc., a
California corporation, as Tenant, and made a part thereof as though
fully set forth at length therein. To the extent any of the provisions
of this Addendum conflict with any other provisions of the Lease, the
provisions of this Addendum shall control.
1. Square Footage of Property. Tenant may, at Tenant's option and expense,
within thirty (30) days after execution of this Lease, have its
architect remeasure the square footage of the Property. Tenant shall
submit such remeasurement to Landlord for Landlord's approval, which
shall not be unreasonably withheld, delayed or conditioned, and the Base
Rent and all additional charges based on the area of the Property shall
be adjusted accordingly to reflect the actual square footage of the
Property.
2. Expansion. Landlord shall use commercially reasonable efforts to
accommodate Tenant's expansion needs.
3. Limitations on Tenant's Liability. Unless caused by Tenant, Tenant shall
not have any responsibility or liability for (i) existing violations of
any laws relating to any part of the Property as of the date Tenant
takes possession of the Property, including, but not limited to,
violations of any building codes, laws relating to Hazardous Substances,
and the Americans with Disabilities Act of 1990, 42 U.S.C.ss.ss. 12101
et seq. and 47 U.S.C.ss.ss. 225 et seq. as amended from time to time,
and any similar or successor federal,state, or local laws (collectively,
the "ADA"), or (ii) any Hazardous Substances present in, on, under or
about any part of the Property as of the date Tenant takes possession
of the Property.
4. Amortization of Costs. The cost of any item included in Common Area
Operating Expenses that is considered a capital repair, replacement or
improvement under generally accepted accounting principles consistently
applied ("Capital Item") shall be amortized over the useful life of such
Capital Item and Tenant's Share of Common Area Operating Expenses with
respect to such Capital Item in any given year shall include only that
year's annual amortization.
EXHIBIT A
Site Plan
[Drawing of site plan.]
EXHIBIT B
Hazardous Materials Questionnaire
(Company Name): Gish Biomedical, Inc., a California corporation
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"Premises": 15041 Bake Parkway, Suite F, Irvine, California
---------------------------------------------------------------------
This Hazardous Materials Questionnaire is designed to solicit information
concerning your proposed use of Hazardous Materials at 15041 Bake Parkway, Suite
F, Irvine, California . The term "Hazardous Materials" means any flammable
items, explosives, radioactive materials, hazardous or toxic substances,
material or waste or related materials, including any substances defined as or
included in the definition of "hazardous substances", "hazardous wastes",
"infectious wastes", "hazardous materials" or "toxic substances" now or
subsequently regulated under any federal, state or local laws, regulations or
ordinances, including without limitation, oil, petroleum-based products, paints,
solvents, lead, cyanide, DDT, printing inks, acids, pesticides, ammonia
compounds and other chemical products, asbestos, PCBs and similar compounds, and
including any different products and materials which are subsequently found to
have adverse effects on the environment or the health and safety of persons.
1. BACKGROUND INFORMATION
----------------------
Gish Biomedical, Inc., a California corporation
----------------------------------------------------------------------------
Name (Corporation, General/Limited Partnership, Public Agency or Individual)
2681 Kelvin Avenue
----------------------------------------------------------------------------
Street Address
Irvine, CA 92614-5821
----------------------------------------------------------------------------
City, State, Zip Code
Contact Person and Title: Jose Cedeno - Manufacturing Manager
------------------------------------
Telephone Number: (949) 553-7351
---------------
2. If you have conducted the specific business or activity planned for the
"Premises" at any other site, please provide the following information:
a. Address of other site:
2681 Kelvin Avenue, Irvine, CA 922614-5821
--------------------------------------------------------------------
b. Period of operation at such site:
Since 1991 to present.
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c. Name under which operations were conducted:
Gish Biomedical, Inc.
--------------------------------------------------------------------
d. Type of activity or manufacturing process conducted at other site:
Disposable medical devices manufacturer.
--------------------------------------------------------------------
--------------------------------------------------------------------
3. Have you ever been the subject of any investigation, inquiry, notice of
violation, order or proceeding regarding your use of Hazardous Materials?
If so, please explain.
No.
--------------------------------------------------------------------
--------------------------------------------------------------------
--------------------------------------------------------------------
4. With respect to the proposed operation at the "Premises", please provide the
following information:
a. Type of activity or manufacturing process proposed for "Premises" if
different from 2(d).
Storage of Vorite and Polycin - "Not Regulated"
--------------------------------------------------------------------
b. Do you intend to store or use any Hazardous Materials on the
Premises? No.
--------------------------------------
If yes, the information below is to be incorporated on the
attached table which will be incorporated into the lease.
c. Please list on the attached exhibit all hazardous materials to
be used in the proposed operation or manufacturing process or
stored at the site. Described the use of the material, the
quantity to be used on a weekly or monthly basis, the quantity
to be stored at the site at any one time, the method of storage,
volume of wastewaters or solid and hazardous material wastes
generated and the method of disposal of such wastes (including
disposal company and disposal site).
d. Please provide a list of the permits and/or filings that have
been obtained or will be necessary to obtain in connection with
the use and/or storage of hazardous materials at the Premises.
Permit/Filing Obtained/To Be Obtained
N/A N/A
-----------------------------
-----------------------------
-----------------------------
-----------------------------
-----------------------------
-----------------------------
e. Please include MSDS sheets for any hazardous material to be used at
the Premises and listed in the enclosed table.
5. As an officer, a general partner, or duly authorized representative of
the company, I am familiar with all of the company and the operations to
be conducted on the Premises. I have made due inquiry in answering the
foregoing questions and hereby certify that to the best of my knowledge,
the information disclosed above is true, correct and complete.
Signature /s/ Les Taeger
------------------------------------------
Print Name Les Taeger
------------------------------------------
Title CFO
------------------------------------------
Date 11/28/00
------------------------------------------
HAZARDOUS MATERIAL INVENTORY
ADDRESS:15041 Bake Parkway, Suite F, Irvine, California
-------------------------------------------------
Quantity Quantity Wastes Disposal Method
Material1 Use Used2 Stored3 Method of Storage Generated4 Of Wastes Generated5
- --------- --- --------------------- ----------------- ---------- --------------------
Vorite Production at different N/A +/- 40,000 lbs. Drums (55 gal ea.) N/A N/A
Polycin facility location +/- 40,000 lbs. " N/A N/A
1. Please attached Material Safety Data Sheets (MSDS).
2. Quantity used in 30 day period.
3. Quantity stored in 30 day period.
4. Estimated volume of Hazardous Material wastewaters or other Hazardous
Material liquids generated; estimated volume of Solid Hazardous
Materials waste generated.
5. Describe the treatment, recycling, storage or disposal activities for
all Hazardous Materials Waste including name of disposal company.
EXHIBIT C
Tenant Moveout Responsibilities
1. Repair all holes in walls and paint over repaired areas with matching
paint.
2. Repair all damaged walls, cinderblock demising walls and sheetrock
demising walls.
3. Steam clean all stained areas of carpet, vacuum all carpet and clean,
mop and wax all tile floors.
4. Insure there are no plumbing leaks and all fixtures are operational in
restrooms and kitchen areas.
5. Clean all bathroom and kitchen fixtures, and make certain that all
bathroom and kitchen fixtures are intact.
6. Replace all damaged restroom fixtures.
7. Replace all broken and/or stained ceiling tiles and repair any damaged
ceiling grid not the result of ordinary wear and tear.
8. Repair all light fixtures and bulbs to proper operating order. If
the bulbs are burned out,replace the bulb. If the ballasts are defective
or burned out, replace the ballast.
9. Replace all damaged light fixtures.
10. Replace all broken or damaged light lenses.
11. Clean all dirty light lenses.
12. All electrical outlets, telephone jacks and switches must be in proper
operating order with cover plates intact. If the cover plates are
damaged or missing, replace the cover plates.
13. Cap any dangling or loose electrical wires.
14. Replace and/or repair damaged column poles.
15. Replace any missing dock bumpers and repair damage to grade beam.
16. All overhead doors and dock levelers must operate properly, replace all
damaged panels or doors.
17. Clean warehouse floor from any tars, paints greases or other residue.
Sweep, power scrub, or mop and seal, if necessary. If floor is extremely
dirty, floor must be cleaned using a scrubber.
18. Clean out and dispose of all trash in the facility.
19. Replace damaged interior downspout/drains.
20. Repair all rails spurs if necessary.
21. Have the HVAC system inspected/repaired and get a written report on
condition. Forward report to Property Manager.
22. Clean all HVAC vent returns.
23. Remove all warehouse racking systems, fences, etc. If racking,
fencing, etc. are bolted to the floor, cut bolts to floor level and fill
cracked areas around bolts with epoxy cement filler.
The Tenant Moveout Responsibilities set forth in this Exhibit C are in
addition to (a) Tenant's moveout responsibilities set forth in Section 6.06 of
this Lease, and (b) Landlord's punch list to be provided to Tenant at the time
of Landlord's walk through upon expiration or earlier termination of this Lease.
EXHIBIT D
[Exhibit left blank.]
Memorandum of Term Commencement
To: Gish Biomedical, Inc.
Re: Industrial Real Estate Lease (Multi-Tenant Facility) dated
November 28, 2000 (the "Lease"), between BUCKHEAD INDUSTRIAL
PROPERTIES, INC., a Maryland corporation ("Landlord"), and GISH
BIOMEDICAL, INC., a California corporation ("Tenant"),
concerning 15041 Bake Parkway, Suite F, Irvine, California
Gentlemen:
In accordance with the Lease, we wish to advise you and/or confirm as
follows:
1. The Lease Term shall commence on or has commenced on _____________
for a term of _____________ months ending on _____________.
2. Base Rent commenced to accrue on ______________________ , in
the amount of $_________________________.
3. If the Commencement Date is other than the first day of the month, the
first billing will contain a pro rata adjustment. Each billing
thereafter, with the exception of the final billing, shall be for the
full amount of the monthly installment as provided for in the Lease.
4. Your rent checks should be made payable to __________________
and mailed to ______________________________________________________.
The parties acknowledge and agree that this Memorandum of Term Commencement
hereby replaces and supercedes any previously executed Memorandum of Term
Commencement.
"Landlord":
BUCKHEAD INDUSTRIAL PROPERTIES,
INC., a Maryland corporation
By:
Its:
Agreed to and Accepted:
"Tenant":
GISH BIOMEDICAL, INC.,
a California corporation
By:
Its: