EXHIBIT 10.25
LEASE AGREEMENT
BASIC LEASE INFORMATION
LEASE DATE: October 1, 2000
LANDLORD: AMB PROPERTY, L.P.,
a Delaware limited partnership
LANDLORD'S ADDRESS: c/o Legacy Partners Commercial, Inc.
101 Lincoln Centre Drive, Fourth Floor
Foster City, California 94404-1167
TENANT: Deltagen, Inc.
a California corporation
TENANT'S ADDRESS: 1003 Hamilton Court
Menlo Park, California 94025
PREMISES: Approximately 24,636 rentable square feet as shown on EXHIBIT A
PREMISES ADDRESS: 1210 Hamilton Court
Menlo Park, California 94025
BUILDING B: Approximately 109,139 rentable square feet
LOT (BUILDING'S TAX PARCEL): APN 055-044-020
WILLOW PARK: Approximately 984,954 rentable square feet
PHASE II OF THE PARK: Approximately 253,939 rentable square feet
TERM: December 1, 2000 ("Commencement Date"), through November 30, 2005
("Expiration Date")
BASE RENT (Section 3): Twenty-Four Thousand Six Hundred Thirty-Six and 00/100 Dollars
($24,636.00) per month
ADJUSTMENTS TO BASE RENT: December 1, 2001 - November 30, 2002 $25,621.44
December 1, 2002 - November 30, 2003 $26,646.30
December 1, 2003 - November 30, 2004 $27,712.15
December 1, 2004 - November 30, 2005 $28,820.64
LETTER OF CREDIT (Section 4): One Hundred Forty-Seven Thousand Eight Hundred Sixteen and 00/100
Dollars ($147,816.00)
*TENANT'S SHARE OF OPERATING EXPENSES (Section 6.1): 10.44% of the Phase
*TENANT'S SHARE OF TAX EXPENSES (Section 6.2): 22.57% of the Building
*TENANT'S SHARE OF COMMON AREA UTILITY
COSTS (Section 7): 10.44% of the Phase
*TENANT'S SHARE OF UTILITY EXPENSES (Section 7): 10.44% of the Phase
*The amount of Tenant's Share of the expenses as referenced above shall be
subject to modification as set forth in this Lease.
PERMITTED USES (Section 9): Office, research and development for gene data technology, but only
to the extent permitted by the City of Menlo Park and all agencies and
governmental authorities having jurisdiction thereof.
UNRESERVED PARKING SPACES: Twenty-five (25) non-exclusive and non-designated spaces
BROKER (Section 38): Legacy Partners Commercial, Inc. for Landlord
EXHIBITS: EXHIBIT A - PREMISES, BUILDING, LOT AND/OR PARK
EXHIBIT B - INTENTIONALLY OMITTED
EXHIBIT C - RULES AND REGULATIONS
EXHIBIT D - COVENANTS, CONDITIONS AND RESTRICTIONS
EXHIBIT E - HAZARDOUS MATERIALS DISCLOSURE CERTIFICATE - EXAMPLE
EXHIBIT F - CHANGE OF COMMENCEMENT DATE - EXAMPLE
EXHIBIT G - TENANT'S INITIAL HAZARDOUS MATERIALS DISCLOSURE
CERTIFICATE
EXHIBIT H - SIGN CRITERIA (INTENTIONALLY OMITTED)
EXHIBIT I - TENANT'S TRADE FIXTURES
TABLE OF CONTENTS
PAGE
1. PREMISES ...............................................................1
2. ADJUSTMENT OF COMMENCEMENT DATE; CONDITION OF THE PREMISES .............1
3. RENT ...................................................................2
4. LETTER OF CREDIT .......................................................2
5. TENANT IMPROVEMENTS ....................................................5
6. ADDITIONAL RENT ........................................................5
7. UTILITIES ..............................................................8
8. LATE CHARGES ...........................................................9
9. USE OF PREMISES .......................................................10
10. ALTERATIONS AND ADDITIONS; AND SURRENDER OF PREMISES ..................11
11. REPAIRS AND MAINTENANCE ...............................................12
12. INSURANCE .............................................................13
13. WAIVER OF SUBROGATION .................................................15
14. LIMITATION OF LIABILITY AND INDEMNITY .................................15
15. ASSIGNMENT AND SUBLEASING .............................................16
16. AD VALOREM TAXES ......................................................18
17. SUBORDINATION .........................................................18
18. RIGHT OF ENTRY ........................................................19
19. ESTOPPEL CERTIFICATE ..................................................19
20. TENANT'S DEFAULT ......................................................20
21. REMEDIES FOR TENANT'S DEFAULT .........................................21
22. HOLDING OVER ..........................................................22
23. LANDLORD'S DEFAULT ....................................................23
24. PARKING ...............................................................23
25. SALE OF PREMISES ......................................................23
26. WAIVER ................................................................23
27. CASUALTY DAMAGE .......................................................24
28. CONDEMNATION ..........................................................25
29. ENVIRONMENTAL MATTERS/HAZARDOUS MATERIALS .............................25
30. FINANCIAL STATEMENTS ..................................................28
31. GENERAL PROVISIONS ....................................................28
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TABLE OF CONTENTS
(CONTINUED)
32. SIGNS .................................................................30
33. MORTGAGEE PROTECTION ..................................................31
34. QUITCLAIM .............................................................31
35. MODIFICATIONS FOR LENDER ..............................................31
36. WARRANTIES OF TENANT ..................................................32
37. COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT .......................32
38. BROKERAGE COMMISSION ..................................................33
39. QUIET ENJOYMENT .......................................................33
40. LANDLORD'S ABILITY TO PERFORM TENANT'S UNPERFORMED OBLIGATIONS ........33
41. TENANT'S EARLY TERMINATION OPTION .....................................34
EXHIBIT A PREMISES........................................................A-1
EXHIBIT B TENANT IMPROVEMENTS.............................................B-1
EXHIBIT C RULES AND REGULATIONS...........................................C-1
EXHIBIT D WILLOW PARK DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS.....................................D-1
EXHIBIT E HAZARDOUS MATERIALS DISCLOSURE CERTIFICATE......................E-1
EXHIBIT F FIRST AMENDMENT TO LEASE AGREEMENT CHANGE
OF COMMENCEMENT DATE............................................F-1
EXHIBIT I TENANT'S TRADE FIXTURES.........................................I-1
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LEASE AGREEMENT
DATE: This Lease is made and entered into as of the Lease Date set forth on
Page 1. The Basic Lease Information set forth on Page 1 and this Lease
are and shall be construed as a single instrument.
1. PREMISES
Landlord hereby leases the Premises to Tenant upon the terms and conditions
contained herein. Landlord hereby grants to Tenant a license for the right to
use, on a non-exclusive basis, parking areas and ancillary facilities located
within the Common Areas of the Park, subject to the terms of this Lease.
Landlord and Tenant hereby agree that for purposes of this Lease, as of the
Lease Date the rentable square footage area of the Premises, the Building, the
Lot and the Park shall be deemed to be the number of rentable square feet as set
forth in the Basic Lease Information on Page 1. Tenant hereby acknowledges that
the rentable square footage of the Premises may include a proportionate share of
certain areas used in common by all occupants of the Building and/or the Park
(for example an electrical room or telephone room). Tenant further agrees that
the number of rentable square feet of the Building, the Lot and the Park may
subsequently change after the Lease Date commensurate with any modifications to
any of the foregoing by Landlord, and Tenant's Share shall accordingly change.
2. ADJUSTMENT OF COMMENCEMENT DATE; CONDITION OF THE PREMISES
2.1 If Landlord cannot deliver possession of the Premises on the
Commencement Date, Landlord shall not be subject to any liability nor shall the
validity of the lease be affected; provided, the Lease Term and the obligation
to pay Rent shall commence on the date possession is tendered and the Expiration
Date shall be extended commensurately. In the event the commencement date,
and/or the expiration date of this Lease is other than the Commencement Date
and/or Expiration Date specified in the Basic Lease Information, as the case may
be, Landlord and Tenant shall execute a written amendment to this Lease,
substantially in the form of EXHIBIT F hereto, wherein the parties shall specify
the actual commencement date, expiration date and the date on which Tenant is to
commence paying Rent. The word "Term" whenever used herein refers to the initial
term of this Lease and any extension thereof. By taking possession of the
Premises, Tenant shall be deemed to have accepted the Premises in good condition
and state of repair. Landlord shall repair, at its sole cost and expense, after
receipt of Tenant's written notice thereof, which notice must be delivered to
Landlord within the first ninety (90) days of the term of this Lease, any (i)
mechanical and electrical systems serving the Premises which are not in good
working order to the extent Tenant has not caused such systems to not be in good
working order. Prior to Lease execution, Tenant shall conduct an inspection of
the premises and provide Landlord a copy of such inspection with a list of items
Landlord shall repair. Upon Lease execution Landlord shall commence to complete
all repairs as diligently as possible. If Tenant fails to timely deliver to
Landlord any such written notice of the aforementioned defects or deficiencies
within said 90-day period, Landlord shall have no obligation to perform any such
work thereafter, except as specifically provided in this Lease. Tenant hereby
acknowledges and agrees that neither Landlord nor Landlord's agents or
representatives has made any representations or warranties as to the
suitability, safety or fitness of the Premises for the conduct of Tenant's
business, Tenant's intended use of the Premises or for any other purpose.
2.2 In the event Landlord permits Tenant to occupy the Premises prior to
the Commencement Date, such occupancy shall be at Tenant's sole risk and subject
to all the provisions of this Lease, including, but not limited to, the
requirement to pay Rent and the security Deposit, and to obtain the insurance
required pursuant to this Lease and to deliver insurance certificates as
required herein. In addition to the foregoing, Landlord shall have the right to
impose such additional conditions on Tenant's early entry as Landlord shall deem
appropriate. If, at any time, Tenant is in default of any term, condition or
provision of this Lease, any such waiver by Landlord of Tenant's requirement to
pay rental payments shall be null and void and Tenant shall immediately pay to
Landlord all rental payments so waived by Landlord.
3. RENT
On the date that Tenant executes this Lease, Tenant shall deliver to
Landlord the original executed Lease, the Base Rent (which shall be applied
against the Rent payable for the first month Tenant is required to pay Base
Rent), the Security Deposit, and all insurance certificates evidencing the
insurance required to be obtained by Tenant under Section 12 of this Lease.
Tenant agrees to pay Landlord, without prior notice or demand, or abatement;
offset, deduction or claim, the Base Rent specified in the Basic Lease
Information, payable in advance at Landlord's address specified in the Basic
Lease Information on the Commencement Date and thereafter on the first (1st) day
of each month throughout the balance of the Term of the Lease. In addition to
the Base Rent set forth in the Basic Lease Information, Tenant shall pay
Landlord in advance on the Commencement Date and thereafter on the first (1st)
day of each month throughout the balance of the Term of this Lease, as
Additional Rent, Tenant's Share of Operating Expenses, Tax Expenses, Common Area
Utility Costs, and Utility Expenses. Tenant shall also pay to Landlord as
Additional Rent hereunder, immediately on Landlord's demand therefor, any and
all costs and expenses incurred by Landlord to enforce the provisions of this
Lease, including, but not limited to, costs associated with the delivery of
notices, delivery and recordation of notice(s) of default, attorneys' fees,
expert fees, court costs and filing fees (collectively, the "Enforcement
Expenses"). The term "Rent" whenever used herein refers to the aggregate of all
these amounts. If Landlord permits Tenant to occupy the Premises without
requiring Tenant to pay rental payments for a period of time, the waiver of the
requirement to pay rental payments shall only apply to waiver of the Base Rent
and Tenant shall otherwise perform all other obligations of Tenant required
hereunder. The Rent for any fractional part of a calendar month at the
commencement or termination of the Lease term shall be a prorated amount of the
Rent for a full calendar month based upon a thirty (30) day month. The prorated
Rent shall be paid on the Commencement Date and the first day of the calendar
month in which the date of termination occurs, as the case may be.
4. LETTER OF CREDIT
4.1 Simultaneously with Tenant's execution and delivery to Landlord of this
Lease and the first month's Base Rent in accordance with the provisions of
Section 3 above, Tenant shall deliver to Landlord, as collateral for the full
and faithful performance by Tenant of all of its obligations under this Lease
and for all losses and damages Landlord may suffer as a result of any default by
Tenant under this Lease, an irrevocable and unconditional negotiable letter of
credit (the "Letter of Credit"), in the form and containing the terms required
herein, payable in the City of Foster City, California (or in addition you may
state "payable in the County of San Mateo") running in favor of Landlord issued
by a solvent nationally recognized bank or financial institution with a long
term rating of BBB or higher, under the supervision of the Superintendent of
Banks of the
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State of California, or a National Banking Association, in the amount of One
Hundred Forty-Seven Thousand Eight Hundred Sixteen and 00/100 Dollars
($147,816.00) (the "LC Amount"). The Letter of Credit shall be (i) at sight and
irrevocable and unconditional, (ii) subject to the terms of this Section 4,
maintained in effect, whether through replacement, renewal or extension, for the
period from the Commencement Date of the Lease and continuing until the date
which is sixty (60) days after the Expiration Date of the Lease (the "Letter of
Credit Expiration Date") and Tenant shall deliver a new Letter of Credit or
certificate of renewal or extension to Landlord at least thirty (30) days prior
to the expiration of the Letter of Credit, without any action whatsoever on the
part of Landlord, (iii) subject to the Uniform Customs and Practices for
Documentary Credits (1993-Rev) International Chamber of Commerce Publication
#500, (iv) fully assignable by Landlord and permit partial draws. In addition to
the foregoing, the form and terms of the Letter of Credit (and the bank issuing
the same) shall be acceptable to Landlord, in Landlord's sole discretion, and
shall provide, among other things, in effect that: (A) Landlord, or its then
managing agent, shall have the right to draw down an amount up to the face
amount of the Letter of Credit upon the presentation to the issuing bank of
Landlord's (or Landlord's then managing agent's) statement that such amount is
due to Landlord under the terms and conditions of this Lease, it being
understood that if Landlord or its managing agent be a limited liability
company, corporation, partnership or other entity, then such statement shall be
signed by a managing member (if a limited liability company) an officer (if a
corporation), a general partner (if a partnership); or any authorized party (if
another entity); (B) the Letter of Credit will be honored by the issuing bank
without inquiry as to the accuracy thereof and regardless of whether the Tenant
disputes the content of such statement; and (C) in the event of a transfer of
Landlord's interest in the Building, Landlord shall transfer the Letter of
Credit, in whole or in part (or cause a substitute letter of credit to be
delivered, as applicable), to the transferee and thereupon the Landlord shall,
without any further agreement between the parties, be released by Tenant from
all liability therefor, and it is agreed that the provisions hereof shall apply
to every transfer or assignment of the whole or any portion of said Letter of
Credit to a new landlord.
4.2 Tenant hereby acknowledges and agrees that landlord is entering into
this Lease in material reliance upon the ability of Landlord to draw upon the
Letter of Credit upon the occurrence of any default on the part of Tenant
hereunder which continues beyond any applicable notice and cure periods. Tenant
further acknowledges and agrees that if Landlord cannot draw upon the Letter of
Credit within the times and in the manner as anticipated by Landlord herein,
Landlord shall suffer irreparable damage, harm and injury. From time to time
during the Term of this Lease it is anticipated by the parties that the Letter
of Credit will need to be amended, modified and, possibly reissued. Landlord and
Tenant hereby covenant and agree to cooperate with one another to promptly
effectuate any such amendments, modifications and new issuances, including
without limitation, executing and submitting to the Issuer any and all documents
or instruments as may be reasonably required to effectuate same. Each and every
time during the Term of this Lease there is a change in the identity or address
of the parties, including without limitation, any change in the identity of
Landlord due to the sale, transfer or other conveyance by Landlord of its rights
and interests in, to and under this Lease to any other party, person or entity,
the Letter of Credit shall immediately be amended or reissued to reflect such
changes and the parties hereby agree to execute and submit to the Issuer such
further applications, documents and instruments as may be necessary to
effectuate same. It is the intention of the parties that each and every
successor and assign of both Landlord and Tenant be bound by and subject to the
terms and provisions of this Section 4. Landlord may, at any time and without
notice to Tenant and without first obtaining Tenant's consent thereto, assign
all or any portion of its interest in and to the Letter of Credit to another
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party, person or entity, regardless of whether or not such assignment is
separate from or as a part of the assignment by Landlord of its rights and
interests in and to this Lease.
4.3 If, as a result of any such application or use of all or any part of
the Letter of Credit, the amount of the Letter of Credit shall be less than the
LC Amount, Tenant shall, within five (5) days thereafter, provide Landlord with
additional letter(s) of credit in an amount equal to the deficiency (or a
replacement letter of credit in the total amount of the LC Amount) and any such
additional (or replacement) letter of credit shall comply with all of the
provisions of this Section 4, and if Tenant fails to comply with the foregoing,
notwithstanding anything to the contrary contained in Section 20 (reference the
Tenant Default Section of the Lease) hereof, the same shall constitute an
incurable default by Tenant. Tenant further covenants and warrants that it will
neither assign nor encumber the Letter of Credit or any part thereof and that
neither Landlord nor its successors or assigns will be bound by any such
assignment, encumbrance, attempted assignment or attempted encumbrance. Without
limiting the generality of the foregoing, if the Letter of Credit expires
earlier than the Letter of Credit Expiration Date, Landlord will accept a
renewal letter of credit or substitute letter of credit (such renewal or
substitute letter of credit to be in effect not later than thirty (30) days
prior to the expiration of the Letter of Credit), which shall be irrevocable and
automatically renewable as above provided through the Letter of Credit
Expiration Date upon the same terms as the expiring Letter of Credit or such
other terms as may be acceptable to Landlord in its sole discretion. However, if
the Letter of Credit is not timely renewed or a substitute letter of credit is
not timely received, or if Tenant fails to maintain the Letter of Credit in the
amount and in accordance with the terms set forth in this Section 4, Landlord
shall have the right to present such Letter of Credit to the bank in accordance
with the terms of this Section 4, and the entire sum evidenced thereby shall be
paid to and held by Landlord as collateral for performance of all of Tenant's
obligations under this Lease and for all losses and damages Landlord may suffer
as a result of any default by Tenant under this Lease.
4.4 If there shall occur a default under this Lease as set forth in Section
20 (reference Tenant Default Section of the Lease) of this Lease, Landlord may,
but without obligation to do so, draw upon the Letter of Credit, in part or in
whole, to cure any default of Tenant and/or to compensate Landlord for any and
all damages of any kind or nature sustained or which may be sustained by
Landlord resulting from Tenant's default. Tenant agrees not to interfere in any
way with payment to Landlord of the proceeds of the Letter of Credit, either
prior to or following a "draw" by Landlord of any portion of the Letter of
Credit, regardless of whether any dispute exists between Tenant and Landlord as
to Landlord's right to draw from the Letter of Credit. No condition or term of
this Lease shall be deemed to render the Letter of Credit conditional to justify
the issuer of the Letter of Credit in failing to honor a drawing upon such
Letter of Credit in a timely manner.
4.5 Landlord and Tenant acknowledge and agree that in no event or
circumstance shall the Letter of Credit or any renewal thereof or substitute
therefor be (x) deemed to be or treated as a "security deposit" within the
meaning of California Civil Code Section 1950.7 (as supplemented, amended,
replaced and substituted from time to time), (y) subject to the terms of such
Section 1950.7 (as supplemented, amended, replaced and substituted from time to
time), or (z) intended to serve as a "security deposit" within the meaning of
such Section 1950.7 (as supplemented, amended, replaced and substituted from
time to time). The parties hereto (a) recite that the Letter of Credit is not
intended to serve as a security deposit and such Section 1950.7 (as
supplemented, amended, replaced and substituted from time to time), and any and
all other laws,
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roles and regulations applicable to security deposits in the commercial context
("Security Deposit Laws") shall have no applicability or relevancy thereto and
(b) waive any and all rights, duties and obligations either party may now or, in
the future, will have relating to or arising from the Security Deposit Laws.
5. TENANT IMPROVEMENTS
Tenant hereby accepts the Premises as suitable for Tenant's intended use
and as being in good operating order, condition and repair, "AS IS" subject to
the provisions in Section 2.1. Tenant acknowledges and agrees that neither
Landlord nor any of Landlord's agents, representatives or employees has made any
representations as to the suitability, fitness or condition of the Premises for
the conduct of Tenant's business or for any other purpose, including without
limitation, any storage incidents thereto. Tenant further acknowledges and
agrees that neither Landlord nor any of Landlord's agents, representatives or
employees has agreed to perform or undertake (i) any alterations to the
Premises, or (ii) construct any improvements in or to the Premises
(collectively, "Tenant Improvements"). Any exception to the foregoing provisions
must be made by express written agreement by both parties.
6. ADDITIONAL RENT
It is intended by Landlord and Tenant that this Lease be a "triple net
lease." The costs and expenses described in this Section 6 and all other sums,
charges, costs and expenses specified in this Lease other than Base Rent are to
be paid by Tenant to Landlord as additional rent (collectively, "Additional
Rent").
6.1 OPERATING EXPENSES: In addition to the Base Rent set forth in Section
3, Tenant shall pay Tenant's Share, which is specified in the Basic Lease
Information, of all Operating Expenses as Additional Rent. The term "Operating
Expenses" as used herein shall mean the total amounts paid or payable by
Landlord in connection with the ownership, maintenance, repair and operation of
the Premises, the Building and the Lot, and where applicable, of the Park
referred to in the Basic Lease Information. The amount of Tenant's Share of
Operating Expenses shall be reviewed from time to time by Landlord and shall be
subject to modification by Landlord if there is a change in the rentable square
footage of the Premises, the Building and/or the Park. These Operating Expenses
may include, but are not limited to:
6.1.1 Landlord's cost of repairs to, and maintenance of, the roof, the
roof membrane and the exterior walls of the Building;
6.1.2 Landlord's cost of maintaining the outside paved area,
landscaping and other common areas for the Park. The farm "Common Areas"
shall mean all areas and facilities within the Park exclusive of the
Premises and the other portions of the Park leasable exclusively to other
tenants. The Common Areas include, but are not limited to, interior
lobbies, mezzanines, parking areas, access and perimeter roads, sidewalks,
rail spurs, landscaped areas and similar areas and facilities;
6.1.3 Landlord's annual cost of insurance insuring against fire and
extended coverage (including, if Landlord elects, "all risk" or "special
purpose" coverage) and all other insurance, including, but not limited to,
earthquake, flood and/or surface water endorsements for
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the Building, the Lot and the Park (including the Common Areas), rental
value insurance against loss of Rent in an amount equal to the amount of
Rent for a period of at least six (6) months commencing on the date of
loss, and subject to the provisions of Section 27 below, any deductible;
6.1.4 Landlord's cost of (i) modifications and/or new improvements to
the Building, the Common Areas and/or the Park occasioned by any rules,
laws or regulations effective subsequent to the date on which the Building
was originally constructed provided, if there are modifications
necessitated by such rules, laws or regulations and required to be made to
the structural portions of the Premises required to be maintained by
Landlord pursuant to Section 11.3 below, then the cost of such
modifications shall be amortized over a reasonable period which shall not
be less than the lesser of fifteen (15) years or the reasonably estimated
useful life of such modification and Tenant shall pay the monthly amortized
portion of such costs as part of the operating expenses; (ii) reasonably
necessary replacement improvements to the Building, the Common Areas and
the Park after the Lease Date; and (iii) new improvements to the Building,
the Common Areas and/or the Park that reduce operating costs or improve
life/safety conditions, all as reasonably determined by Landlord, in its
sole discretion;
6.1.5 If Landlord elects to so procure, Landlord's cost of
preventative maintenance, and repair contracts including, but not limited
to, contracts for elevator systems and heating, ventilation and air
conditioning systems, lifts for disabled persons, and trash or refuse
collection;
6.1.6 Landlord's cost of security and fire protection services for the
Building and/or the Park, as the case may be, if in Landlord's sole
discretion such services are provided;
6.1.7 Landlord's cost of supplies, equipment, rental equipment and
other similar items used in the operation and/or maintenance of the Park;
6.1.8 Landlord's cost for the repairs and maintenance items set forth
in Section 11.2 below;
6.1.9 Landlord's cost for the management and administration of the
Premises, the Building and/or Park or any part thereof, including, without
limitation, a property management fee, accounting, auditing, billing,
postage, salaries and benefits for clerical and supervisory employees,
whether located on the Park or off-site, payroll taxes and legal and
accounting costs and all fees, licenses and permits related to the
ownership, operation and management of the Park. Such costs, excluding the
cost of on-site management office expenses and employees, shall not exceed
3% of Rent; and
6.1.10 Notwithstanding the forgoing, Tenant shall be responsible for
the cost of replacement of capital expenditures described in this
subparagraph 6.1 only on a pro rata basis corresponding to the useful life
of the capital expenditure, based on typical commercial real estate
practices, that will be exhausted during the remainder of the term.
6.2 TAX EXPENSES: In addition to the Base Rent set forth in Section 3,
Tenant shall pay its share, which is specified in the Basic Lease Information,
of all real property taxes applicable to the land and improvements included
within the Lot on which the Premises are situated and one hundred percent (100%)
of all personal property taxes now or hereafter assessed or levied against
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the Premises or Tenant's personal property. The amount of Tenant's Share of Tax
Expenses shall be reviewed from time to time by Landlord and shall be subject to
modification by Landlord if there is a change in the rentable square footage of
the Premises, the Building and/or the Park. Tenant shall also pay one hundred
percent (100%) of any increase in real property taxes attributable, in
Landlord's sole discretion, to any and all alterations or other improvements of
any kind, which are above standard improvements customarily installed for
similar buildings located within the Building or the Park (as applicable),
whatsoever placed in, on or about the Premises for the benefit of, at the
request of, or by Tenant. The term "Tax Expenses" shall mean and include,
without limitation, any form of tax and assessment (general, special,
supplemental, ordinary or extraordinary), commercial rental tax, payments under
any improvement bond or bonds, license fees, license tax, business license fee,
rental tax, transaction tax, levy, or penalty imposed by authority having the
direct or indirect power of tax (including any city, county, state or federal
government, or any school, agricultural, lighting, drainage or other improvement
district thereof) as against any legal or equitable interest of Landlord in the
Premises, the Building, the Lot or the Park, as against Landlord's right to
rent, or as against Landlord's business of leasing the Premises or the occupancy
of Tenant or any other tax, fee, or excise, however described, including, but
not limited to, any value added tax, or any tax imposed in substitution
(partially or totally) of any tax previously included within the definition of
real property taxes, or any additional tax the nature of which was previously
included within the definition of real property taxes. The term "Tax Expenses"
shall not include any franchise, estate, inheritance, net income, or excess
profits tax imposed upon Landlord.
6.3 PAYMENT OF EXPENSES: Landlord shall estimate Tenant's Share of the
Operating Expenses and Tax Expenses for the calendar year in which the Lease
commences. Commencing on the Commencement Date, one-twelfth (1/12th) of this
estimated amount shall be paid by Tenant to Landlord, as Additional Rent, and
thereafter on the first (1st) day of each month throughout the remaining months
of such calendar year. Thereafter, Landlord may estimate such expenses as of the
beginning of each calendar year during the Term of this Lease and Tenant shall
pay one-twelfth (1/12th) of such estimated amount as Additional Rent hereunder
on the first (1st) day of each month during such calendar year and for each
ensuing calendar year throughout the Term of this Lease. Tenant's obligation to
pay Tenant's Share of Operating Expenses and Tax Expenses shall survive the
expiration or earlier termination of this Lease.
6.4 ANNUAL RECONCILIATION: By June 30th of each calendar year, or as soon
thereafter as reasonably possible, Landlord shall endeavor to furnish Tenant
with an accounting of actual Operating Expenses and Tax Expenses. Within thirty
(30) days of Landlord's delivery of such accounting, Tenant shall pay to
Landlord the amount of any underpayment. Notwithstanding the foregoing, failure
by Landlord to give such accounting by such date shall not constitute a waiver
by Landlord of its right to collect any of Tenant's underpayment at any time.
Landlord shall credit the amount of any overpayment by Tenant toward the next
estimated monthly installment(s) falling due, or where the Term of the Lease has
expired, refund the amount of overpayment to Tenant. If the Term of the Lease
expires prior to the annual reconciliation of expenses Landlord shall have the
right to reasonably estimate Tenant's Share of such expenses, and if Landlord
determines that an underpayment is due, Tenant hereby agrees that Landlord shall
be entitled to deduct such underpayment from Tenant's Security Deposit. If
Landlord reasonably determines that an overpayment has been made by Tenant,
Landlord shall refund said overpayment to Tenant as soon as practicable
thereafter. Notwithstanding the foregoing, failure of Landlord to accurately
estimate Tenant's Share of such expenses or to otherwise perform such
reconciliation of expenses, including without limitation, Landlord's failure to
deduct any portion of any underpayment from Tenant's
7
Security Deposit, shall not constitute a waiver of Landlord's right to collect
any of Tenant's underpayment at any time during the Term of the Lease or at
anytime after the expiration or earlier termination of this Lease.
6.5 AUDIT: After delivery to Landlord of at least thirty (30) days prior
written notice, Tenant, at its sole cost and expense through any accountant
designated by it, shall have the right to examine and/or audit the books and
records evidencing such costs and expenses for the previous one (1) calendar
year, during Landlord's reasonable business hours but not more frequently than
once during any calendar year. Any such accounting firm designated by Tenant may
not be compensated on a contingency fee basis. The results of any such audit
(and any negotiations between the parties related thereto) shall be maintained
strictly confidential by Tenant and its accounting firm and shall not be
disclosed, published or otherwise disseminated to any other party other than to
Landlord and its authorized agents. Landlord and Tenant shall use their best
efforts to cooperate in such negotiations and to promptly resolve any
discrepancies between Landlord and Tenant in the accounting of such costs and
expenses.
7. UTILITIES
Utility Expenses, Common Area Utility Costs and all other sums or charges
set forth in this Section 7 are considered part of Additional Rent. In addition
to the Base Rent set forth in Section 3 hereof, Tenant shall pay the cost of all
water, sewer use, sewer discharge fees and sewer connection fees, gas, heat,
electricity, refuse pickup, janitorial service, telephone and other utilities
billed or metered separately to the Premises and/or Tenant. Tenant shall also
pay Tenant's Share of any assessments or charges for utility or similar purposes
included within any tax bill for the Lot on which the Premises are situated,
including, without limitation, entitlement fees, allocation unit fees, and/or
any similar fees or charges, and any penalties related thereto. For any such
utility fees or use charges that are not billed or metered separately to Tenant,
including without limitation, water and refuse pick up charges, Tenant shall pay
to Landlord, as Additional Rent, without prior notice or demand, on the
Commencement Date and thereafter on the first (1st) day of each month throughout
the balance of the Term of this Lease the amount which is attributable to
Tenant's use of the utilities or similar services, as reasonably estimated and
determined by Landlord based upon factors such as size of the Premises and
intensity of use of such utilities by Tenant such that Tenant shall pay the
portion of such charges reasonably consistent with Tenant's use of such
utilities and similar services ("Utility Expenses"). If Tenant disputes any such
estimate or determination, then Tenant shall either pay the estimated amount or
cause the Premises to be separately metered at Tenant's sole expense. In
addition, Tenant shall pay to Landlord Tenant's Share of any Common Area utility
costs, fees, charges or expenses ("Common Area Utility Costs"). Tenant shall pay
to Landlord one-twelfth (1/12th) of the estimated amount of Tenant's Share of
the Common Area Utility Costs on the Commencement Date and thereafter on the
first (1st) day of each month throughout the balance of the Term of this Lease
and any reconciliation thereof shall be substantially in the same manner as
specified :in Section 6.4 above. The amount of Tenant's Share of Common Area
Utility Costs shall be reviewed from time to time by Landlord and shall be
subject to modification by Landlord if there is a change in the rentable square
footage of the Premises, the Building and/or the Park. Tenant acknowledges that
the Premises may become subject to the rationing of utility services or
restrictions on utility use as required by a public utility company,
governmental agency or other similar entity having jurisdiction thereof.
Notwithstanding any such rationing or restrictions on use of any such utility
services, Tenant acknowledges and agrees that its tenancy and occupancy
hereunder shall be subject to such rationing restrictions as may be imposed
8
upon Landlord, Tenant, the Premises, the Building or the Park, and Tenant shall
in no event be excused or relieved from any covenant or obligation to be kept or
performed by Tenant by reason of any such rationing or restrictions. Tenant
further agrees to timely and faithfully pay, prior to delinquency, any amount,
tax, charge, surcharge, assessment or imposition levied, assessed or imposed
upon the Premises, or Tenant's use and occupancy thereof. Notwithstanding
anything to the contrary contained herein, if permitted by applicable Laws,
Landlord shall have the right at any time and from time to time during the Term
of this Lease to either contract for service from a different company or
companies (each such company shall be referred to herein as an "Alternate
Service Provider") other than the company or companies presently providing
electricity service for the Building or the Park (the "Electric Service
Provider") or continue to contract for service from the Electric Service
Provider, at Landlord's sole discretion. Tenant hereby agrees to cooperate with
Landlord, the Electric Service Provider, and any Alternate Service Provider at
all times and, as reasonably necessary, shall allow Landlord, the Electric
Service Provider, and any Alternate Service Provider reasonable access to the
Building's electric lines, feeders, risers, wiring, and any other machinery
within the Premises.
8. LATE CHARGES
Any and all sums or charges set forth in this Section 8 are considered part
of Additional Rent. Tenant acknowledges that late payment (the fifth day of each
month or any time thereafter) by Tenant to Landlord of Base Rent, Tenant's Share
of Operating Expenses, Tax Expenses, Common Area Utility Costs, and Utility
Expenses or other sums due hereunder, will cause Landlord to incur costs not
contemplated by this Lease, the exact amount of such costs being extremely
difficult and impracticable to fix. Such costs include, without limitation,
processing and accounting charges, and late charges that may be imposed on
Landlord by the terms of any note secured by any encumbrance against the
Premises, and late charges and penalties due to the late payment of real
property taxes on the Premises. Therefore, if any installment of Rent or any
other sum due from Tenant is not received by Landlord when due (not including
the first occurrence that such payment is not received by Landlord when due, in
such case no late charge shall be incurred), Tenant shall promptly pay to
Landlord all of the following, as applicable: (a) an additional sum equal to ten
percent (10%) of such delinquent amount plus interest on such delinquent amount
at the rate equal to the prime rate plus three percent (3%) for the time period
such payments are delinquent as a late charge for every month or portion thereof
that such sums remain unpaid, (b) the amount of seventy-five dollars ($75) for
each three-day notice prepared for, or served on, Tenant, (c) the amount of
fifty dollars ($50) relating to checks for which there are not sufficient funds.
If Tenant delivers to Landlord a check for which there are not sufficient funds,
Landlord may, at its sole option, require Tenant to replace such check with a
cashier's check for the amount of such check and all other charges payable
hereunder. The parties agree that this late charge and the other charges
referenced above represent a fair and reasonable estimate of the costs that
Landlord will incur by reason of late payment by Tenant. Acceptance of any late
charge or other charges shall not constitute a waiver by Landlord of Tenant's
default with respect to the delinquent amount, nor prevent Landlord from
exercising any of the other rights and remedies available to Landlord for any
other breach of Tenant under this Lease. If a late charge or other charge
becomes payable for any three (3) installments of Rent within any twelve (12)
month period, then Landlord, at Landlord's sole option, can either require the
Rent be paid quarterly in advance, or be paid monthly in advance by cashier's
check or by electronic funds transfer.
9
9. USE OF PREMISES
9.1 COMPLIANCE WITH LAWS, RECORDED MATTERS, AND RULES AND REGULATIONS: The
Premises are to be used solely for the purposes and uses specified in the Basic
Lease Information and for no other uses or purposes without Landlord's prior
written consent, which consent shall not be unreasonably withheld or delayed so
long as the proposed use (i) does not involve the use of Hazardous Materials
other than as expressly permitted under the provisions of Section 29 below, (ii)
does not require any additional parking in excess of the parking spaces already
licensed to Tenant pursuant to the provisions of Section 24 of this Lease, and
(iii) is compatible and consistent with the other uses then being made in the
Park and in other similar types of buildings in the vicinity of the Park, as
reasonably determined by Landlord. The use of the Premises by Tenant and its
employees, representatives, agents, invitees, licensees, subtenants, customers
or contractors (collectively, "Tenant's Representatives") shall be subject to,
and at all times in compliance with, (a) any and all applicable laws,
ordinances, statutes, orders and regulations as same exist from time to time
(collectively, the "Laws"), (b) any and all documents, matters or instruments,
including without limitation, any declarations of covenants, conditions and
restrictions, and any supplements thereto, each of which has been or hereafter
is recorded in any official or public records with respect to the Premises, the
Building, the Lot and/or the Park, or any portion thereof (collectively, the
"Recorded Matters"), and (c) any and all rules and regulations set forth in
EXHIBIT C, attached to and made a part of this Lease, and any other reasonable
rules and regulations promulgated by Landlord now or hereafter enacted relating
to parking and the operation of the Premises, the Building and the Park
(collectively, the "Rules and Regulations"). Tenant agrees to, and does hereby,
assume full and complete responsibility to ensure that the Premises are adequate
to fully meet the needs and requirements of Tenant's intended operations of its
business within the Premises, and Tenant's use of the Premises and that same are
in compliance with all applicable Laws throughout the Term of this Lease.
Additionally, Tenant shall be solely responsible for the payment of all costs,
fees and expenses associated with any modifications, improvements or alterations
to the Premises, Building, the Common Areas and/or the Park occasioned by the
enactment of, or changes to, any Laws arising from Tenant's particular use of
the Premises or alterations, improvements or additions made to the Premises
regardless of when such Laws became effective.
9.2 PROHIBITION ON USE: Tenant shall not use the Premises or permit
anything to be done in or about the Premises nor keep or bring anything therein
which will in any way conflict with any of the requirements of the Board of Fire
Underwriters or similar body now or hereafter constituted or in any way increase
the existing rate of or affect any policy of fire or other insurance upon the
Building or any of its contents, or cause a cancellation of any insurance
policy. No auctions may be held or otherwise conducted in, on or about the
Premises, the Building, the Lot or the Park without Landlord's written consent
thereto, which consent may be given or withheld in Landlord's sole discretion.
Tenant shall not do or permit anything to be done in or about the Premises which
will in any way obstruct or interfere with the rights of Landlord, other tenants
or occupants of the Building, other buildings in the Park, or other persons or
businesses in the area, or injure or annoy other tenants or use or allow the
Premises to be used for any unlawful or objectionable purpose, as determined by
Landlord, in its reasonable discretion, for the benefit, quiet enjoyment and use
by Landlord and all other tenants or occupants of the Building or other
buildings in the Park; nor shall Tenant cause, maintain or permit any private or
public nuisance in, on or about the Premises, Building, Park and/or the Common
Areas, including, but not limited to, any offensive odors, noises, fumes or
vibrations. Tenant shall not damage or deface or otherwise commit or suffer to
be committed any waste in, upon or about the Premises. Tenant shall not place or
store,
10
nor permit any other person or entity to place or store, any property,
equipment, materials, supplies, personal property or any other items or goods
outside of the Premises for any period of time. Tenant shall not permit any live
animals, including, but not limited to, any household pets, to be brought or
kept in or about the Premises. Tenant shall place no loads upon the floors,
walls, or ceilings in excess of the maximum designed load permitted by the
applicable Uniform Building Code or which may damage the Building or outside
areas; nor place any harmful liquids in the drainage systems; nor dump or store
waste materials, refuse or other such materials, or allow such to remain outside
the Building area, except for any non-hazardous or non-harmful materials which
may be stored in refuse dumpsters or in any enclosed trash areas provided.
Tenant shall honor the terms of all Recorded Matters relating to the Premises,
the Building, the Lot and/or the Park. Tenant shall honor the Rules and
Regulations. If Tenant fails to comply with such Laws, Recorded Matters, Rules
and Regulations or the provisions of this Lease, Landlord shall have the right
to collect from Tenant a reasonable sum as a penalty, in addition to all rights
and remedies of Landlord hereunder including, but not limited to, the payment by
Tenant to Landlord of all Enforcement Expenses and Landlord's costs and
expenses, if any, to cure any of such failures of Tenant, if Landlord, at its
sole option, elects to undertake such cure.
10. ALTERATIONS AND ADDITIONS; AND SURRENDER OF PREMISES
10.1 ALTERATIONS AND ADDITIONS: Tenant shall not install any signs,
fixtures, improvements, nor make or permit any other alterations or additions to
the Premises without the prior written consent of Landlord. If any such
alteration or addition is expressly permitted by Landlord, Tenant shall deliver
at least twenty (20) days prior notice to Landlord, from the date Tenant intends
to commence construction, sufficient to enable Landlord to post a Notice of
Non-Responsibility. In all events, Tenant shall obtain all permits or other
governmental approvals prior to commencing any of such work and deliver a copy
of same to Landlord. All alterations and additions shall be installed by a
licensed contractor approved by Landlord, at Tenant's sole expense in compliance
with all applicable Laws (including, but not limited to, the ADA as defined
herein), Recorded Matters, and Rules and Regulations. Tenant shall keep the
Premises and the property on which the Premises are situated free from any liens
arising out of any work performed, materials furnished or obligations incurred
by or on behalf of Tenant. As a condition to Landlord's consent to the
installation of any fixtures, additions or other improvements, if Tenant has
been continually late in payment of rent, or prior to making the application to
install improvements Landlord has requested Tenant to make payments of rent on
cashiers check, pursuant to Section 8 of the Lease or Tenant is in material
default and has not cured such default within the cure periods defined in the
Lease, Landlord may require Tenant to post and obtain a completion and indemnity
bond for up to one hundred percent (100%) of the cost of the work.
10.2 SURRENDER OF PREMISES: Upon the termination of this Lease, whether by
forfeiture, lapse of time or otherwise, or upon the termination of Tenant's
right to possession of the Premises, Tenant will at once surrender and deliver
up the Premises, together with the fixtures (other than trade fixtures),
additions and improvements which Landlord has notified Tenant, in writing, that
Landlord will require Tenant not to remove, to Landlord in good condition and
repair (including, but not limited to, replacing all light bulbs and ballasts
not in good working condition) and in the condition in which the Premises
existed as of the Commencement Date, except for reasonable wear and tear.
Reasonable wear and tear shall not include any damage or deterioration to the
floors of the Premises arising from the use of forklifts in, on or about the
Premises (including, without limitation, any marks or stains of any portion of
the floors), and any damage or deterioration that would have
11
been prevented by proper maintenance by Tenant or Tenant otherwise performing
all of its obligations under this Lease. Upon such termination of this Lease,
Tenant shall remove all tenant signage, trade fixtures, furniture, furnishings,
personal properly, additions, and other improvements unless Landlord requests,
in writing, that Tenant not remove some or all of such fixtures (other than
trade fixtures itemized or similar to those itemized in EXHIBIT I), additions or
improvements installed by, or on behalf of Tenant or situated in or about the
Premises. By the date which is twenty (20) days prior to such termination of
this Lease, Landlord shall notify Tenant in writing of those fixtures (other
than trade fixtures), alterations, additions and other improvements which
Landlord shall require Tenant not to remove from the Premises. Tenant shall
repair any damage caused by the installation or removal of such signs, trade
fixtures, furniture, furnishings, fixtures, additions and improvements which are
to be removed from the Premises by Tenant hereunder. If Landlord fails to so
notify Tenant at least twenty (20) days prior to such termination of this Lease,
then Tenant shall remove all tenant signage, alterations, furniture,
furnishings, trade fixtures, additions and other improvements installed in or
about the Premises by, or on behalf of Tenant. Tenant shall ensure that the
removal of such items and the repair of the Premises will be completed prior to
such termination of this Lease.
11. REPAIRS AND MAINTENANCE
11.1 TENANT'S REPAIRS AND MAINTENANCE OBLIGATIONS: Except for those
portions of the Building to be maintained by Landlord, as provided in Sections
11.2 and 11.3 below, Tenant shall, at Tenant's sole cost and expense, keep and
maintain the Premises and the adjacent dock and staging areas in good, clean and
safe condition and repair to the reasonable satisfaction of Landlord including,
but not limited to, repairing any damage caused by Tenant or Tenant's
Representatives and replacing any property so damaged by Tenant or Tenant's
Representatives. Without limiting the generality of the foregoing, Tenant shall
be solely responsible for maintaining, repairing and replacing (a) all
mechanical systems, heating, ventilation and air conditioning systems
exclusively serving the Premises, (b) all plumbing, electrical wiring and
equipment serving the Premises, (c) all interior lighting (including, without
limitation, light bulbs and/or ballasts) and exterior lighting serving the
Premises or adjacent to the Premises, (d) all glass, windows, window frames,
window casements, skylights, interior and exterior doors, door frames and door
closers, (e) all roll-up doors, ramps and dock equipment, including without
limitation, dock bumpers, dock plates, dock seals, dock levelers and dock
lights, (f) all tenant signage, (g) lifts for disabled persons serving the
Premises, (h) sprinkler systems, fire protection systems and security systems,
(i) all partitions, fixtures, equipment, interior painting, and interior walls
and floors of the Premises and every part thereof (including, without
limitation, any demising walls contiguous to any portion of the Premises).
11.2 REIMBURSABLE REPAIRS AND MAINTENANCE OBLIGATIONS: Subject to the
provisions of Sections 6 and 9 of this Lease and except for (i) the obligations
of Tenant set forth in Section 11.1 above, (ii) the obligations of Landlord set
forth in Section 11.3 below, and (iii) the repairs rendered necessary by the
intentional or negligent acts or omissions of Tenant or any of Tenant's
Representatives, Landlord agrees, at Landlord's expense, subject to
reimbursement pursuant to Section 6 above, to keep in good repair the plumbing
and mechanical systems exterior to the Premises, any rail spur and rail
crossing, the roof, roof membranes, exterior walls of the Building, signage
(exclusive of tenant signage), and exterior electrical wiring and equipment,
exterior lighting, exterior glass, exterior doors/entrances and door closets,
exterior window casements, exterior painting of the Building (exclusive of the
Premises), and underground utility and sewer
12
pipes outside the exterior walls of the Building. For purposes of this
Section 11.2, the term "exterior" shall mean outside of and not exclusively
serving the Premises. Unless otherwise notified by Landlord, in writing, that
Landlord has elected to procure and maintain the following described
contract(s), Tenant shall procure and maintain (a) the heating, ventilation
and air conditioning systems preventative maintenance and repair contract(s);
such contract(s) to be on a bi-monthly or quarterly basis, as reasonably
determined by Landlord, and (b) the fire and sprinkler protection services
and preventative maintenance and repair contract(s) (including, without
limitation, monitoring services); such contract(s) to be on a bi-monthly or
quarterly basis, as reasonably determined by Landlord. Landlord reserves the
right, but without the obligation to do so, to procure and maintain (i) the
heating, ventilation and air conditioning systems preventative maintenance
and repair contract(s), and/or (ii) the fire and sprinkler protection
services and preventative maintenance and repair contracts) (including,
without limitation, monitoring services). If Landlord so elects to procure
and maintain any such contract(s), Tenant will reimburse Landlord for the
cost thereof in accordance with the provisions of Section 6 above. If Tenant
procures and maintains any of such contract(s), Tenant will promptly deliver
to Landlord a true and complete copy of each such contract and any and all
renewals or extensions thereof, and each service report or other summary
received by Tenant pursuant to or in connection with such contract(s).
11.3 LANDLORD'S REPAIRS AND MAINTENANCE OBLIGATIONS: Except for repairs
rendered necessary by the intentional or negligent acts or omissions of Tenant
or any of Tenant's Representatives, Landlord agrees, at Landlord's sole cost and
expense, to (a) keep in good repair the structural portions of the floors,
foundations and exterior perimeter walls of the Building (exclusive of glass and
exterior doors), and (b) replace the structural portions of the roof of the
Building (excluding the roof membrane) as, and when, Landlord determines such
replacement to be necessary in Landlord's sole discretion.
11.4 TENANT'S FAILURE TO PERFORM REPAIRS AND MAINTENANCE OBLIGATIONS:
Except for normal maintenance and repair of the items described above, Tenant
shall have no right of access to or right to install any device on the roof of
the Building nor make any penetrations of the roof of the Building without the
express prior written consent of Landlord. If Tenant refuses or neglects to
repair and maintain the Premises and the adjacent areas properly as required
herein and to the reasonable satisfaction of Landlord, Landlord may, but without
obligation to do so, at any time make such repairs and/or Maintenance without
Landlord having any liability to Tenant for any loss or damage that may accrue
to Tenant's merchandise, fixtures or other property, or to Tenant's business by
reason thereof, except to the extent any damage is caused by the willful
misconduct or gross negligence of Landlord or its authorized agents and
representatives. In the event Landlord makes such repairs and/or maintenance,
upon completion thereof Tenant shall pay to Landlord, as additional rent, the
Landlord's costs for making such repairs and/or maintenance, plus twenty percent
(20%) for overhead, upon presentation of a bill therefor, plus any Enforcement
Expenses. The obligations of Tenant hereunder shall survive the expiration of
the Term of this Lease or the earlier termination thereof. Tenant hereby waives
any right to repair at the expense of Landlord under any applicable Laws now or
hereafter in effect respecting the Premises.
12. INSURANCE
12.1 TYPES OF INSURANCE: Tenant shall maintain in full force and effect at
all times during the Term of this Lease, at Tenant's sole cost and expense, for
the protection of Tenant and Landlord, as their interests may appear, policies
of insurance issued by a carrier or carriers
13
reasonably acceptable to Landlord and its lender(s) which afford the following
coverages: (i) worker's compensation: statutory limits; (ii) employer's
liability, as required by law, with a minimum limit of $100,000 per employee and
$500,000 per occurrence; (iii) commercial general liability insurance
(occurrence form) providing coverage against any and all claims for bodily
injury and property damage occurring in, on or about the Premises arising out of
Tenant's and Tenant's Representatives' use and/or occupancy of the Premises.
Such insurance shall include coverage for blanket contractual liability, fire
damage, premises, personal injury, completed operations, products liability,
personal and advertising, and a plate-glass rider to provide coverage for all
glass in, on or about the Premises including, without limitation, skylights.
Such insurance shall have a combined single limit of not less than One Million
Dollars ($1,000,000) per occurrence with a Two Million Dollar ($2,000,000)
aggregate limit and excess/umbrella insurance in the amount of Two Million
Dollars ($2,000,000). If Tenant has other locations which it owns or leases, the
policy shall include an aggregate limit per location endorsement. If necessary,
as reasonably determined by Landlord, Tenant shall provide for restoration of
the aggregate limit; (iv) comprehensive automobile liability insurance: a
combined single limit of not less than $2,000,000 per occurrence and insuring
Tenant against liability for claims arising out of the ownership, maintenance,
or use of any owned, hired or non-owned automobiles; (v) "all risk" or "special
purpose" property insurance, including without limitation, sprinkler leakage,
boiler and machinery comprehensive form, if applicable, covering damage to or
loss of any personal property, trade fixtures, inventory, fixtures and equipment
located in, on or about the Premises, and in addition, coverage for flood,
earthquake, and business interruption of Tenant, together with, if the property
of Tenant's invitees is to be kept in the Premises, warehouser's legal liability
or bailee customers insurance for the full replacement cost of the property
belonging to invitees and located in the Premises. Such insurance shall be
written on a replacement cost basis (without deduction for depreciation) in an
amount equal to one hundred percent (100%) of the full replacement value of the
aggregate of the items referred to in this subparagraph (v); and (vi) such other
insurance as Landlord deems necessary and prudent or as may otherwise be
required by any of Landlord's lenders or joint venture partners.
12.2 INSURANCE POLICIES: Insurance required to be maintained by Tenant
shall be written by companies (i) licensed to do business in the State of
California, (ii) domiciled in the United States of America, and (iii) having a
"General Policyholders Rating" of at least A:X (or such higher rating as may be
required by a lender having a lien on the Premises) as set forth in the most
current issue of "A.M. Best's Rating Guides." Any deductible amounts under any
of the insurance policies required hereunder shall not exceed One Thousand
Dollars ($1,000). Tenant shall deliver to Landlord certificates of insurance and
true and complete copies of any and all endorsements required herein for all
insurance required to be maintained by Tenant hereunder at the time of execution
of this Lease by Tenant. Tenant shall, at least thirty (30) days prior to
expiration of each policy, furnish Landlord with certificates of renewal or
"binders" thereof. Each certificate shall expressly provide that such policies
shall not be cancelable or otherwise subject to modification except after thirty
(30) days prior written notice to the parties named as additional insureds as
required in this Lease (except for cancellation for nonpayment of premium, in
which event cancellation shall not take effect until at least ten (10) days'
notice has been given to Landlord). Tenant shall have the right to provide
insurance coverage which it is obligated to carry pursuant to the terms of this
Lease under a blanket insurance policy, provided such blanket policy expressly
affords coverage for the Premises and for Landlord as required by this Lease.
12.3 ADDITIONAL INSUREDS AND COVERAGE: Landlord, any property management
company and/or agent of Landlord for the Premises, the Building, the Lot or the
Park, and any
14
lender(s) of Landlord having a lien against the Premises, the Building, the Lot
or the Park shall be named as additional insureds under all of the policies
required in Section 12.1(iii) above. Additionally, such policies shall provide
for severability of interest. All insurance to be maintained by Tenant shall,
except for workers' compensation and employer's liability insurance, be primary,
without right of contribution from insurance maintained by Landlord. Any
umbrella/excess liability policy (which shall be in "following form") shall
provide that if the underlying aggregate is exhausted, the excess coverage will
drop down as primary insurance. The limits of insurance maintained by Tenant
shall not limit Tenant's liability under this Lease. It is the parties'
intention that the insurance to be procured and maintained by Tenant as required
herein shall provide coverage for any and all damage or injury arising from or
related to Tenant's operations of its business and/or Tenant's or Tenant's
Representatives' use of the Premises and/or any of the areas within the Park,
whether such events occur within the Premises (as described in EXHIBIT A hereto)
or in any other areas of the Park. It is not contemplated or anticipated by the
parties that the aforementioned risks of loss be borne by Landlord's insurance
carriers, rather it is contemplated and anticipated by Landlord and Tenant that
such risks of loss be borne by Tenant's insurance carriers pursuant to the
insurance policies procured and maintained by Tenant as required herein.
12.4 FAILURE OF TENANT TO PURCHASE AND MAINTAIN INSURANCE: In the event
Tenant does not purchase the insurance required in this Lease or keep the same
in full force and effect throughout the Term of this Lease (including any
renewals or extensions) Landlord may, but without obligation to do so, purchase
the necessary insurance and pay the premiums therefor. If Landlord so elects to
purchase such insurance, Tenant shall promptly pay to Landlord as Additional
Rent the amount so paid by Landlord, upon Landlord's demand therefor. In
addition, Landlord may recover from Tenant and Tenant agrees to pay, as
Additional Rent, any and all Enforcement Expenses and damages which Landlord may
sustain by reason of Tenant's failure to obtain and maintain such insurance.
Tenant fails to maintain any insurance required in this Lease, Tenant shall be
liable for all losses, damage and costs resulting from such failure.
13. WAIVER OF SUBROGATION
Landlord and Tenant hereby mutually waive their respective rights of
recovery against each other for any loss of, or damage to, either parties'
property to the extent that such loss or damage is insured by an insurance
policy required to be in effect at the time of such loss or damage. Each party
shall obtain any special endorsements, if required by its insurer whereby the
insurer waives its rights of subrogation against the other party. This provision
is intended to waive fully, and for the benefit of the parties hereto, any
rights and/or claims which might give rise to a right of subrogation in favor of
any insurance carrier. The coverage obtained by Tenant pursuant to Section 12 of
this Lease shall include, without limitation, a waiver of subrogation
endorsement attached to the certificate of insurance. The provisions of this
Section 13 shall not apply in those instances in which such waiver of
subrogation would invalidate such insurance coverage or would cause either
party's insurance coverage to be voided or otherwise uncollectible.
14. LIMITATION OF LIABILITY AND INDEMNITY
Except to the extent of damage resulting from the sole active negligence or
willful misconduct of Landlord or its authorized representatives, Tenant agrees
to protect, defend (with counsel acceptable to Landlord) and hold Landlord and
Landlord's lenders, partners, members, property management company (if other
than Landlord), agents, directors, officers, employees,
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representatives, contractors, shareholders, successors and assigns and each of
their respective partners, members, directors, employees, representatives,
agents, contractors, shareholders, successors and assigns (collectively, the
"Indemnitees") harmless and indemnify the Indemnitees from and against all
liabilities, damages, claims, losses, judgments, charges and expenses (including
reasonable attorneys' fees, costs of court and expenses necessary in the
prosecution or defense of any litigation including the enforcement of this
provision) arising from or in any way related to, directly or indirectly, (i)
Tenant's or Tenant's Representatives' use of the Premises, Building and/or the
Park, (ii) the conduct of Tenant's business, (iii) from any activity, work or
thing done, permitted or suffered by Tenant in or about the Premises, (iv) in
any way connected with the Premises or with the improvements or personal
property therein, including, but not limited to, any liability for injury to
person or property of Tenant, Tenant's Representatives, or third party persons,
and/or (v) Tenant's failure to perform any covenant or obligation of Tenant
under this Lease. Tenant agrees that the obligations of Tenant herein shall
survive the expiration or earlier termination of this Lease.
Except to the extent of damage resulting from the sole active negligence or
willful misconduct of Landlord or its authorized representatives, to the fullest
extent permitted by law, Tenant agrees that neither Landlord nor any of
Landlord's lender(s), partners, members, employees, representatives, legal
representatives, successors or assigns shall at any time or to any extent
whatsoever be liable, responsible or in any way accountable for any loss,
liability, injury, death or damage to persons or property which at any time may
be suffered or sustained by Tenant or by any person(s) whomsoever who may at any
time be using, occupying or visiting the Premises, the Building or the Park,
including, but not limited to, any acts, errors or omissions by or on behalf of
any other tenants or occupants of the Building and/or the Park. Tenant shall
not, in any event or circumstance, be permitted to offset or otherwise credit
against any payments of Rent required herein for matters for which Landlord may
be liable hereunder. Landlord and its authorized representatives shall not be
liable for any interference with light or air, or for any latent defect in the
Premises or the Building.
15. ASSIGNMENT AND SUBLEASING
15.1 PROHIBITION: Tenant shall not assign, mortgage, hypothecate, encumber,
grant any license or concession, pledge or otherwise transfer this Lease
(collectively, "assignment"), in whole or in part, whether voluntarily or
involuntarily or by operation of law, nor sublet or permit occupancy by any
person other than Tenant of all or any portion of the Premises without first
obtaining the prior written consent of Landlord, which consent shall not be
unreasonably withheld. Tenant hereby agrees that Landlord may withhold its
consent to any proposed sublease or assignment if the proposed sublessee or
assignee or its business is subject to compliance with additional requirements
of the ADA (defined below) and/or Environmental Laws (defined below) beyond
those requirements which are applicable to Tenant, unless the proposed sublessee
or assignee shall (a) first deliver plans and specifications for complying with
such additional requirements and obtain Landlord's written consent thereto, and
(b) comply with all Landlord's conditions for or contained in such consent,
including without limitation, requirements for security to assure the lien-free
completion of such improvements. If Tenant seeks to sublet or assign all or any
portion of the Premises, Tenant shall deliver to Landlord at least thirty (30)
days prior to the proposed commencement of the sublease or assignment (the
"Proposed Effective Date") the following: (i) the name of the proposed assignee
or sublessee; (ii) such information as to such assignee's or sublessee's
financial responsibility and standing as Landlord may reasonably require;
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and (iii) the aforementioned plans and specifications, if any. Within ten (10)
days after Landlord's receipt of a written request from Tenant that Tenant seeks
to sublet or assign all or any portion of Premises, Landlord shall deliver to
Tenant a copy of Landlord's standard form of sublease or assignment agreement
(as applicable), which instrument shall be utilized for each proposed sublease
or assignment (as applicable), and such instrument shall include a provision
whereby the assignee or sublessee assumes all of Tenant's obligations hereunder
and agrees to be bound by the terms hereof. As Additional Rent hereunder, Tenant
shall pay to Landlord a fee in the amount of five hundred dollars ($500) plus
Tenant shall reimburse Landlord for actual legal and other expenses incurred by
Landlord in connection with any actual or proposed assignment or subletting. In
the event the sublease or assignment (1) by itself or taken together with prior
sublease(s) or partial assignment(s) covers or totals, as the case may be, more
than twenty-five percent (25%) of the rentable square feet of the Premises or
(2) is for a term which by itself or taken together with prior or other
subleases or partial assignments is greater than fifty percent (50%) of the
period remaining in the Term of this Lease as of the time of the Proposed
Effective Date, then Landlord shall have the right, to be exercised by giving
written notice to Tenant, to recapture the space described in the sublease or
assignment. If such recapture notice is given, it shall serve to terminate this
Lease with respect to the proposed sublease or assignment space, or, if the
proposed sublease or assignment space covers all the Premises, it shall serve to
terminate the entire term of this Lease in either case, as of the Proposed
Effective Date. However, no termination of this Lease with respect to part or
all of the Premises shall become effective without the prior written consent,
where necessary, of the holder of each deed of trust encumbering the Premises or
any part thereof. If this Lease is terminated pursuant to the foregoing with
respect to less than the entire Premises, the Rent shall be adjusted on the
basis of the proportion of square feet retained by Tenant to the square feet
originally demised and this Lease as so amended shall continue thereafter in
full force and effect. Each permitted assignee or sublessee shall assume and be
deemed to assume this Lease and shall be and remain liable jointly and severally
with Tenant for payment of Rent and for the due performance of, and compliance
with all the terms, covenants, conditions and agreements herein contained on
Tenant's part to be performed or complied with, for the term of this Lease. No
assignment or subletting shall affect the continuing primary liability of Tenant
(which, following assignment, shall be joint and several with the assignee), and
Tenant shall not be released from performing any of the terms, covenants and
conditions of this Lease. Tenant hereby acknowledges and agrees that it
understands that Landlord's accounting department may process and accept Rent
payments without verifying that such payments are being made by Tenant, a
permitted sublessee or a permitted assignee in accordance with the provisions of
this Lease. Although such payments may be processed and accepted by such
accounting department personnel, any and all actions or omissions by the
personnel of Landlord's accounting department shall not be considered as
acceptance by Landlord of any proposed assignee or sublessee nor shall such
actions or omissions be deemed to be a substitute for the requirement that
Tenant obtain Landlord's prior written consent to any such subletting or
assignment, and any such actions or omissions by the personnel of Landlord's
accounting department shall not be considered as a voluntary relinquishment by
Landlord of any of its rights hereunder nor shall any voluntary relinquishment
of such rights be inferred therefrom. For purposes hereof, in the event Tenant
is a corporation, partnership, joint venture, trust or other entity other than a
natural person, any change in the direct or indirect ownership of Tenant
(whether pursuant to one or more transfers) which results in a change of more
than fifty percent (50%) in the direct or indirect ownership of Tenant shall be
deemed to be an assignment within the meaning of this Section 15 and shall be
subject to all the provisions hereof. Any and all options, first rights of
refusal, tenant improvement allowances and other similar rights granted to
Tenant in this Lease, if any, shall not be assignable by Tenant unless expressly
authorized in writing by Landlord.
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15.2 EXCESS SUBLEASE RENTAL OR ASSIGNMENT CONSIDERATION: In the event of
any sublease or assignment of all or any portion of the Premises where the rent
or other consideration provided for in the sublease or assignment either
initially or over the term of the sublease or assignment exceeds the Rent or pro
rata portion of the Rent, as the case may be, for such space reserved in the
Lease, Tenant shall pay the Landlord monthly, as Additional Rent, at the same
time as the monthly installments of Rent are payable hereunder, seventy-five
percent (75%) of the excess of each such payment of rent or other consideration
in excess of the Rent called for hereunder, less Tenant's cost to effect such
sublease.
15.3 WAIVER: Notwithstanding any assignment or sublease, or any
indulgences, waivers or extensions of time granted by Landlord to any assignee
or sublessee, or failure by Landlord to take action against any assignee or
sublessee, Tenant waives notice of any default of any assignee or sublessee and
agrees that Landlord may, at its option, proceed against Tenant without having
taken action against or joined such assignee or sublessee, except that Tenant
shall have the benefit of any indulgences, waivers and extensions of time
granted to any such assignee or sublessee.
16. AD VALOREM TAXES
Prior to delinquency, Tenant shall pay all taxes and assessments levied
upon trade fixtures, alterations, additions, improvements, inventories and
personal property located and/or installed on or in the Premises by; or on
behalf of, Tenant; and if requested by Landlord, Tenant shall promptly deliver
to Landlord copies of receipts for payment of all such taxes and assessments. To
the extent any such taxes are not separately assessed or billed to Tenant,
Tenant shall pay the amount thereof as invoiced by Landlord.
17. SUBORDINATION
Without the necessity of any additional document being executed by Tenant
for the purpose of effecting a subordination, and at the election of Landlord or
any bona fide mortgagee or deed of trust beneficiary with a lien on all or any
portion of the Premises or any ground lessor with respect to the land of which
the Premises are a part, the rights of Tenant under this Lease and this Lease
shall be subject and subordinate at all times to: (i) all ground leases or
underlying leases which may now exist or hereafter be executed affecting the
Building or the land upon which the Building is situated or both, and (ii) the
lien of any mortgage or deed of trust which may now exist or hereafter be
executed in any amount for which the Building, the Lot, ground leases or
underlying leases, or Landlord's interest or estate in any of said items is
specified as security. Notwithstanding the foregoing, Landlord or any such
ground lessor, mortgagee, or any beneficiary shall have the right to subordinate
or cause to be subordinated any such ground leases or underlying leases or any
such liens to this Lease. If any ground lease or underlying lease terminates for
any reason or any mortgage or deed of trust is foreclosed or a conveyance in
lieu of foreclosure is made for any reason, Tenant shall, notwithstanding any
subordination and upon the request of such successor to Landlord, attorn to and
become the Tenant of the successor in interest to Landlord, provided such
successor in interest will not disturb Tenant's use, occupancy or quiet
enjoyment of the Premises so long as Tenant is not in default of the terms and
provisions of this Lease. The successor in interest to Landlord following
foreclosure, sale or deed in lieu thereof shall not be (a) liable for any act or
omission of any prior lessor or with respect to events occurring prior to
acquisition of ownership; (b) subject to any offsets or defenses which Tenant
might have against any prior lessor; (c) bound by prepayment of more than one
(1) month's Rent, except in those instances when Tenant pays Rent
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quarterly in, advance pursuant to Section 8 hereof, then not more than three
months' Rent; or (d) liable to Tenant for any Security Deposit not actually
received by such successor in interest to the extent any portion or all of such
Security Deposit has not already been forfeited by, or refunded to, Tenant.
Landlord shall be liable to Tenant for all or any portion of the Security
Deposit not forfeited by, or refunded to Tenant, until and unless Landlord
transfers such Security Deposit to the successor in interest. Tenant covenants
and agrees to execute (and acknowledge if required by Landlord, any lender or
ground lessor) and deliver, within five (5) business days of a demand or request
by Landlord and in the form requested by Landlord, ground lessor, mortgagee or
beneficiary, any additional documents evidencing the priority or subordination
of this Lease with respect to any such ground leases or underlying leases or the
lien of any such mortgage or deed of trust. Tenant's failure to timely execute
and deliver such additional documents shall, at Landlord's option, constitute a
material default hereunder. It is further agreed that Tenant shall be liable to
Landlord, and shall indemnify Landlord from and against any loss, cost, damage
or expense, incidental, consequential, or otherwise, arising or accruing
directly or indirectly, from any failure of Tenant to execute or deliver to
Landlord any such additional documents, together with any and all Enforcement
Expenses. Notwithstanding anything to the contrary contained in this Lease, (a)
promptly following the execution of this Lease, Landlord shall use reasonable
efforts to obtain from the beneficiary under the existing deed of trust
encumbering the Premises, a subordination, non-disturbance and attornment
agreement for the benefit of Tenant in commercially reasonable form; and (b)
until Landlord has obtained such non-disturbance agreement, the amount of the
Letter of Credit to be obtained by Tenant pursuant to Section 4 above shall be
One Hundred Fifty Thousand Dollars ($150,000.00), rather than Three Hundred
Thousand Dollars ($300,00.00).
18. RIGHT OF ENTRY
Tenant grants Landlord or its agents the right to enter the Premises at all
reasonable times for purposes of inspection, exhibition, posting of notices,
repair or alteration. At Landlord's option, Landlord shall at all times have and
retain a key with which to unlock all the doors in, upon and about the Premises,
excluding Tenant's vaults and safes. It is further agreed that Landlord shall
have the right to use any and all means Landlord deems necessary to enter the
Premises in an emergency. Landlord shall have the right to place "for rent" or
"for lease" signs on the outside of the Premises, the Building and in the Common
Areas. Landlord shall also have the right to place "for sale" signs on the
outside of the Building and in the Common Areas. Tenant hereby waives any claim
from damages or for any injury or inconvenience to or interference with Tenant's
business, or any other loss occasioned thereby except for any claim for any of
the foregoing arising out of the sole active negligence or willful misconduct of
Landlord or its authorized representatives.
19. ESTOPPEL CERTIFICATE
Tenant shall execute (and acknowledge if required by any lender, or ground
lessor) and deliver to Landlord, within five (3) business days after Landlord
provides such to Tenant, a statement in writing certifying that this Lease is
unmodified and in full force and effect (or, if modified, stating the nature of
such modification), the date to which the Rent and other charges are paid in
advance, if any, acknowledging that there are not, to Tenant's knowledge, any
uncured defaults on the part of Landlord hereunder or specifying such defaults
as are claimed, and such other matters as Landlord may reasonably require. Any
such statement may be conclusively relied upon by landlord and any prospective
purchaser or encumbrancer of the Premises. Tenant's failure to deliver such
statement within such time shall be conclusive upon the Tenant that (a) this
Lease is
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in full force an effect, without modification except as may be represented by
Landlord; (b) there are no uncured default in Landlord's performance; and (c)
not more than one month's Rent has been paid in advance, except in those
instances when Tenant pays Rent quarterly in advance pursuant to Section 8
hereof, then not more than three month's Rent has been paid in advance. Failure
by Tenant to so deliver such certified estoppel certificate shall be a material
default of the provisions of this Lease. Tenant shall be liable to Landlord, and
shall indemnify Landlord from and against any loss, cost, damage or expense,
incidental, consequential, or otherwise, arising or accruing directly or
indirectly, from any failure of Tenant to execute or deliver to Landlord any
such certified estoppel certificate, together with any and all Enforcement
Expenses.
20. TENANT'S DEFAULT
The occurrence of any one or more of the following events shall, at
Landlord's option, constitute a material default by Tenant of the provisions of
this Lease:
20.1 The abandonment of the Premises by Tenant or the vacation of the
Premises by Tenant which would cause any insurance policy to be invalidated or
otherwise lapse. Tenant agrees to notice and service of notice as provided for
in this Lease and waives any right to any other or further notice or service of
notice which Tenant may have under any statute or law now or hereafter in
effect;
20.2 The failure by Tenant to make any payment of Rent, Additional Rent or
any other payment required hereunder on the date said payment is due. Tenant
agrees to notice and service of notice as provided for in this Lease and waives
any right to any other or further notice or service of notice which Tenant may
have under any statute or law now or hereafter in effect;
20.3 The failure by Tenant to observe, perform or comply with any of the
conditions, covenants or provisions of this Lease (except failure to make any
payment of Rent and/or Additional Rent) and such failure is not cured within the
time period required under the provisions of this Lease. If such failure is
susceptible of cure but cannot reasonably be cured within the aforementioned
time period (if any), as determined solely by Landlord, Tenant shall promptly
commence the cure of such failure and thereafter diligently prosecute such cure
to completion within the time period specified by Landlord in any written notice
regarding such failure as may be delivered to Tenant by Landlord. In no event or
circumstance shall Tenant have more than fifteen (15) days to complete any such
cure, unless otherwise expressly agreed to in writing by Landlord (in Landlord's
sole discretion);
20.4 The making of a general assignment by Tenant for the benefit of
creditors, the filing of a voluntary petition by Tenant or the filing of an
involuntary petition by any of Tenant's creditors seeking the rehabilitation,
liquidation, or reorganization of Tenant under any law relating to bankruptcy,
insolvency or other relief of debtors and, in the case of an involuntary action,
the failure to remove or discharge the same within sixty (60) days of such
filing, the appointment of a receiver or other custodian to take possession of
substantially all of Tenant's assets or this leasehold, Tenant's insolvency or
inability to pay Tenant's debts or failure generally to pay Tenant's debts when
due, any court entering a decree or order directing the winding up or
liquidation of Tenant or of substantially all of Tenant's assets, Tenant taking
any action toward the dissolution or winding up of Tenant's affairs, the
cessation or suspension of Tenant's use of the Premises, or the attachment,
execution or other judicial seizure of substantially all of Tenant's assets or
this leasehold;
20
20.5 Tenant's use or storage of Hazardous Materials in, on or about the
Premises, the Building, the Lot and/or the Park other than as expressly
permitted by the provisions of Section 29 below; or
20.6 The making of any material misrepresentation or omission by Tenant in
any materials delivered by or on behalf of Tenant to Landlord pursuant to this
Lease.
21. REMEDIES FOR TENANT'S DEFAULT
21.1 LANDLORD'S RIGHTS: In the event of Tenant's material default under
this Lease, Landlord may terminate Tenant's right to possession of the Premises
by any lawful means in which case upon delivery of written notice by Landlord
this Lease shall terminate on the date specified by Landlord in such notice and
Tenant shall immediately surrender possession of the Premises to Landlord. In
addition, the Landlord shall have the immediate right of re-entry whether or not
this Lease is terminated, and if this right of re-entry is exercised following
abandonment of the Premises by Tenant, Landlord may consider any personal
property belonging to Tenant and left on the Premises to also have been
abandoned. No re-entry or taking possession of the Premises by Landlord pursuant
to this Section 21 shall be construed as an election to terminate this Lease
unless a written notice of such intention is given to Tenant. If Landlord relets
the Premises or any portion thereof, (i) Tenant shall be liable immediately to
Landlord for all costs Landlord incurs in reletting the Premises or any part
hereof, including, without limitation, broker's commissions, expenses of
cleaning, redecorating, and further improving the Premises and other similar
costs (collectively, the "Reletting Costs"), and (ii) the rent received by
Landlord from such reletting shall be applied to the payment of, first, any
indebtedness from Tenant to Landlord other than Base Rent, Operating Expenses,
Tax Expenses, Common Area Utility Costs, and Utility Expenses; second, all costs
including maintenance, incurred by Landlord in reletting; and, third, Base Rent,
Operating Expenses, Tax Expenses, Common Area Utility Costs, Utility Expenses,
and all other sums due under this Lease. Any and all of the Reletting Costs
shall be fully chargeable to Tenant and shall not be prorated or otherwise
amortized in relation to any new lease for the Premises or any portion thereof.
After deducting the payments referred to above, any sum remaining from the
rental Landlord receives from reletting shall be held by Landlord and applied in
payment of future Rent as Rent becomes due under this Lease. In no event shall
Tenant be entitled to any excess rent received by Landlord. Reletting may be for
a period shorter or longer than the remaining term of this Lease. No act by
Landlord other than giving written notice to Tenant shall terminate this Lease.
Acts of maintenance, efforts to relet the Premises or the appointment of a
receiver on Landlord's initiative to protect Landlord's interest under this
Lease shall not constitute a termination of Tenant's right to possession. So
long as this Lease is not terminated, Landlord shall have the right to remedy
any default of Tenant, to maintain or improve the Premises, to cause a receiver
to be appointed to administer the Premises and new or existing subleases and to
add to the Rent payable hereunder all of Landlord's reasonable costs in so
doing, with interest at the maximum rate permitted by law from the date of such
expenditure.
21.2 DAMAGES RECOVERABLE: If Tenant breaches this Lease and abandons the
Premises before the end of the Term, or if Tenant's right to possession is
terminated by Landlord because of a breach or default under this Lease, then in
either such case, Landlord may recover from Tenant all damages suffered by
Landlord as a result of Tenant's failure to perform its obligations hereunder,
including, but not limited to, the portion of any broker's or leasing agent's
commission incurred with respect to the leasing of the Premises to Tenant for
the balance of the Term of the Lease remaining
21
after the date on which Tenant is in default of its obligations hereunder, and
all Reletting Costs, and the worth at the time of the award (computed in
accordance with paragraph (3) of Subdivision (a) of Section 1951.2 of the
California Civil Code) of the amount by which the Rent then unpaid hereunder for
the balance of the Lease Term exceeds the amount of such loss of Rent for the
same period which Tenant proves could be reasonably avoided by Landlord and in
such case, Landlord prior to the award, may relet the Premises for the purpose
of mitigating damages suffered by Landlord because of Tenant's failure to
perform its obligations hereunder; provided, however, that even though Tenant
has abandoned the Premises following such breach, this Lease shall nevertheless
continue in full force and effect for as long as Landlord does not terminate
Tenant's right of possession, and until such termination, Landlord shall have
the remedy described in Section 1951.4 of the California Civil Code (Landlord
may continue this Lease in effect after Tenant's breach and abandonment and
recover Rent as it becomes due, if Tenant has the right to sublet or assign,
subject only to reasonable limitations) and may enforce all its rights and
remedies under this Lease, including the right to recover the Rent from Tenant
as it becomes due hereunder. The "worth at the time of the award" within the
meaning of Subparagraphs (a)(1) and (a)(2) of Section 1951.2 of the California
Civil Code shall be computed by allowing interest at the rate of ten percent
(10%) per annum. Tenant waives redemption or relief from forfeiture under
California Code of Civil Procedure Sections 1174 and 1179, or under any other
present or future law, in the event Tenant is evicted or Landlord takes
possession of the Premises by reason of any default of Tenant hereunder.
21.3 RIGHTS AND REMEDIES CUMULATIVE: The foregoing rights and remedies of
Landlord are not exclusive; they are cumulative in addition to any rights and
remedies now or hereafter existing at law, in equity by statute or otherwise, or
to any equitable remedies Landlord may have, and to any remedies Landlord may
have under bankruptcy laws or laws affecting creditor's rights generally. In
addition to all remedies set forth above, if Tenant materially defaults under
this Lease, any and all Base Rent waived by Landlord under Section 3 above shall
be immediately due and payable to Landlord and all options granted to Tenant
hereunder shall automatically terminate, unless otherwise expressly agreed to in
writing by Landlord.
21.4 WAIVER OF A DEFAULT: The waiver by Landlord of any default of any
provision of this Lease shall not be deemed or construed a waiver of any other
default by Tenant hereunder or of any subsequent default of this Lease, except
for the default specified in the waiver.
22. HOLDING OVER
If Tenant holds possession of the Premises after the expiration of the Term
of this Lease with Landlord's consent, Tenant shall become a tenant from
month-to-month upon the terms and provisions of this Lease, provided the monthly
Base Rent during such hold over period shall be 150% of the Base Rent due on the
last month of the Lease Term, payable in advance on or before the first day of
each month. Acceptance by Landlord of the monthly Base Rent without the
additional fifty percent (50%) increase of Base Rent shall not be deemed or
construed as a waiver by Landlord of any of its rights to collect the increased
amount of the Base Rent as provided herein at any time. Such month-to-month
tenancy shall not constitute a renewal or extension for any further term. All
options, if any, granted under the terms of this Lease shall be deemed
automatically terminated and be of no force or effect during said month-to-month
tenancy. Tenant shall continue in possession until such tenancy shall be
terminated by either Landlord or Tenant giving written notice of termination to
the other party at least thirty (30) days prior to the effective date of
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termination. This paragraph shall not be construed as Landlord's permission for
Tenant to hold over. Acceptance of Base Rent by Landlord following expiration or
termination of this Lease shall not constitute a renewal of this Lease.
23. LANDLORD'S DEFAULT
Landlord shall not be deemed in breach or default of this Lease unless
Landlord fails within a reasonable time to perform an obligation required to be
performed by Landlord hereunder. For purposes of this provision, a reasonable
time shall not be less than thirty (30) days after receipt by Landlord of
written notice specifying the nature of the obligation Landlord has not
performed; provided, however, that if the nature of Landlord's obligation is
such that more than thirty (30) days, after receipt of written notice, is
reasonably necessary for its performance, then Landlord shall not be in breach
or default of this Lease if performance of such obligation is commenced within
such thirty (30) day period and thereafter diligently pursued to completion.
24. PARKING
Tenant shall have a license to use the number of non-designated and
non-exclusive parking spaces specified in the Basic Lease Information. Landlord
shall exercise reasonable efforts to insure that such spaces are available to
Tenant for its use, but Landlord shall not be required to enforce Tenant's right
to use the same.
25. SALE OF PREMISES
In the event of any sale of the Premises by Landlord or the cessation
otherwise of Landlord's interest therein, Landlord shall be and is hereby
entirely released from any and all of its obligations to perform or further
perform under this Lease and from all liability hereunder accruing from or after
the date of such sale; and the purchaser, at such sale or any subsequent sale of
the Premises shall be deemed, without any further agreement between the parties
or their successors in interest or between the parties and any such purchaser,
to have assumed and agreed to carry out any and all of the covenants and
obligations of the Landlord under this Lease. For purposes of this Section 25,
the term "Landlord" means only the owner and/or agent of the owner as such
parties exist as of the date on which Tenant executes this Lease. A ground lease
or similar long term lease by Landlord of the entire Building, of which the
Premises are a part, shall be deemed a sale within the meaning of this Section
25. Tenant agrees to attorn to such new owner provided such new owner does not
disturb Tenant's use, occupancy or quiet enjoyment of the Premises so long as
Tenant is not in default of any of the provisions of this Lease.
26. WAIVER
No delay or omission in the exercise of any right or remedy of Landlord on
any default by Tenant shall impair such a right or remedy or be construed as a
waiver. The subsequent acceptance of Rent by Landlord after default by Tenant of
any covenant or term of this Lease shall not be deemed a waiver of such default,
other than a waiver of timely payment for the particular Rent payment involved,
and shall not prevent Landlord from maintaining an unlawful detainer or other
action based on such breach. No payment by Tenant or receipt by Landlord of a
lesser amount than the monthly Rent and other sums due hereunder shall be deemed
to be other than on account of the earliest Rent or other sums due, nor shall
any endorsement or statement on any check or
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accompanying any check or payment be deemed an accord and satisfaction; and
Landlord may accept such check or payment without prejudice to Landlord's
right to recover the balance of such Rent or other sum or pursue any other
remedy provided in this Lease. No failure, partial exercise or delay on the
part of the Landlord in exercising any right, power or privilege hereunder
shall operate as a waiver thereof.
27. CASUALTY DAMAGE
If the Premises or any part thereof shall be damaged by fire or other
casualty, Tenant shall give prompt written notice thereof to Landlord. In case
the Building shall be so damaged by fire or other casualty that substantial
alteration or reconstruction of the Building shall, in Landlord's sole opinion,
be required (whether or not the Premises shall have been damaged by such fire or
other casualty), Landlord may, at its option, terminate this Lease by notifying
Tenant in writing of such termination within ninety (90) days after the date of
such damage, in which event the Rent shall be abated as of the date of such
damage. If Landlord does not elect to terminate this Lease, and provided
insurance proceeds and any contributions from Tenant, if necessary, are
available to fully repair the damage, Landlord shall within one hundred twenty
(120) days after the date of such damage commence to repair and restore the
Building and shall proceed with reasonable diligence to restore the Building
(except that Landlord shall not be responsible for delays outside its control)
to substantially the condition in which it was immediately prior to the
happening of the casualty; provided, Landlord shall not be required to rebuild,
repair, or replace any part of Tenant's furniture, furnishings, fixtures and/or
equipment removable by Tenant or any improvements, alterations or additions
installed by or for the benefit of Tenant under the provisions of this Lease.
Landlord shall not in any event be required to spend or such work an amount in
excess of the insurance proceeds (excluding any deductible) and any
contributions from Tenant, if necessary, actually received by Landlord as a
result of the fire or other casualty. Landlord shall not be liable for any
inconvenience or annoyance to Tenant, injury to the business of Tenant, loss of
use of any part of the Premises by the Tenant or loss of Tenant's personal
property resulting in any way from such damage or the repair thereof, except
that, subject to the provisions of the next sentence, Landlord shall allow
Tenant a fair diminution of Rent during the time and to the extent the Premises
are unfit for occupancy. Notwithstanding anything to the contrary contained
herein, if the Premises or any other portion of the Building be damaged by fire
or other casualty resulting from the intentional or negligent acts or omissions
of Tenant or any of Tenant's Representatives, (i) the Rent shall not be
diminished during the repair of such damage, (ii) Tenant shall not have any
right to terminate this Lease due to the occurrence of such casualty or damage,
and (iii) Tenant shall be liable to Landlord for the cost and expense of the
repair and restoration of all or any portion of the Building caused thereby
(including, without limitation, any deductible) to the extent such cost and
expense is not covered by insurance proceeds. In the event the holder of any
indebtedness secured by the Premises requires that the insurance proceeds be
applied to such indebtedness, then Landlord shall have the right to terminate
this Lease by delivering written notice of termination to Tenant within thirty
(30) days after the date of notice to Tenant of any such event, whereupon all
rights and obligations shall cease and terminate hereunder except for those
obligations expressly intended to survive any such termination of this Lease.
Except as otherwise provided in this Section 27, Tenant hereby waives the
provisions of Sections 1932(2.), 1933(4.), 1941 and 1942 of the California Civil
Code.
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28. CONDEMNATION
If twenty-five percent (25%) or more of the Premises is condemned by
eminent domain, inversely condemned or sold in lieu of condemnation for any
public or quasi-public use or purpose ("Condemned"), then Tenant or Landlord may
terminate this Lease as of the date when physical possession of the Premises is
taken and title vests in such condemning authority, and Rent shall be adjusted
to the date of termination. Tenant shall not because of such condemnation assert
any claim against Landlord or the condemning authority for any compensation
because of such condemnation, and Landlord shall be entitled to receive the
entire amount of any award without deduction for any estate of interest or other
interest of Tenant. If neither party elects to terminate this Lease, Landlord
shall, if necessary, promptly proceed to restore the Premises or the Building to
substantially its same condition prior to such partial condemnation, allowing
for the reasonable effects of such partial condemnation, and a proportionate
allowance shall be made to Tenant, as solely determined by Landlord, for the
Rent corresponding to the time during which, and to the part of the Premises of
which, Tenant is deprived on account of such partial condemnation and
restoration. Landlord shall not be required to spend funds for restoration in
excess of the amount received by Landlord as compensation awarded.
29. ENVIRONMENTAL MATTERS/HAZARDOUS MATERIALS
29.1 HAZARDOUS MATERIALS DISCLOSURE CERTIFICATE: Prior to executing this
Lease; Tenant has completed, executed and delivered to Landlord Tenant's initial
Hazardous Materials Disclosure Certificate (the "Initial HazMat Certificate"), a
copy of which is attached hereto as EXHIBIT G and incorporated herein by this
reference. Tenant covenants, represents and warrants to Landlord that the
information on the Initial HazMat Certificate is true and correct and accurately
describes the use(s) of Hazardous Materials which will be made and/or used on
the Premises by Tenant. Tenant shall commencing with the date which is one year
from the Commencement Date and continuing every year thereafter, complete,
execute, and deliver to Landlord, a Hazardous Materials Disclosure Certificate
(the "HazMat Certificate") describing Tenant's present use of Hazardous
Materials on the Premises, and any other reasonably necessary documents as
requested by Landlord. The HazMat Certificate required hereunder shall be in
substantially the form as that which is attached hereto as EXHIBIT E.
29.2 DEFINITION OF HAZARDOUS MATERIALS: As used in this Lease, the term
Hazardous Materials shall mean and include (a) any hazardous or toxic wastes,
materials or substances, and other pollutants or contaminants, which are or
become regulated by any Environmental Laws; (b) petroleum, petroleum by
products, gasoline, diesel fuel, crude oil or any fraction thereof; (c) asbestos
and asbestos containing material, in any form, whether friable or non-friable;
(d) polychlorinated biphenyls; (e) radioactive materials; (f) lead and
lead-containing materials; (g) any other material, waste or substance displaying
toxic, reactive, ignitable or corrosive characteristics, as all such terms are
used in their broadest sense, and are defined or become defined by any
Environmental Law (defined below); or (h) any materials which cause or threatens
to cause a nuisance upon or waste to any portion of the Premises, the Building,
the Lot, the Park or any surrounding property; or poses or threatens to pose a
hazard to the health and safety of persons on the Premises or any surrounding
property.
29.3 PROHIBITION; ENVIRONMENTAL LAWS: Tenant shall not be entitled to use
nor store any Hazardous Materials on, in, or about the Premises, the Building,
the Lot and the Park, or any
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portion of the foregoing, without, in each instance, obtaining Landlord's prior
written consent thereto. If Landlord consents to any such usage or storage, then
Tenant shall be permitted to use and/or store only those Hazardous Materials
that are necessary for Tenant's business and to the extent disclosed in the
HazMat Certificate and as expressly approved by Landlord in writing, provided
that such usage and storage is only to the extent of the quantities of Hazardous
Materials as specified in the then applicable HazMat Certificate as expressly
approved by Landlord and provided further that such usage and storage is in full
compliance with any and all local, state and federal environmental, health
and/or safety-related laws, statutes, orders, standards, courts' decisions,
ordinances, rules and regulations (as interpreted by judicial and administrative
decisions), decrees, directives, guidelines, permits or permit conditions,
currently existing and as amended, enacted, issued or adopted in the future
which are or become applicable to Tenant or all or any portion of the Premises
(collectively, the "Environmental Laws"). Tenant agrees that any changes to the
type and/or quantities of Hazardous Materials specified in the most recent
HazMat Certificate may be implemented only with the prior written consent of
Landlord, which consent may be given or withheld in Landlord's sole discretion.
Tenant shall not be entitled nor permitted to install any tanks under; on or
about the Premises for the storage of Hazardous Materials without the express
written consent of Landlord, which may be given or withheld in Landlord's sole
discretion. Landlord shall have the right at all times during the Term of this
Lease to (i) inspect the Premises, (ii) conduct tests and investigations to
determine whether Tenant is in compliance with the provisions of this Section
29, and (iii) request lists of all Hazardous Materials used, stored or otherwise
located on, under or about any portion of the Premises and/or the Common Areas.
The cost of all such inspections, tests and investigations shall be borne solely
by Tenant, if Landlord reasonably determines that Tenant or any of Tenant's
Representatives are directly or indirectly responsible in any manner for any
contamination revealed by such inspections, tests and investigations. The
aforementioned rights granted herein to Landlord and its representatives shall
not create (a) a duty on Landlord's part to inspect, test, investigate, monitor
or otherwise observe the Premises or the activities of Tenant and Tenant's
Representatives with respect to Hazardous Materials, including without
limitation, Tenant's operation, use and any remediation related thereto, or (b)
liability on the part of Landlord and its representatives for Tenant's use,
storage, disposal or remediation of Hazardous Materials, it being understood
that Tenant shall be solely responsible for all liability in connection
therewith.
29.4 TENANT'S ENVIRONMENTAL OBLIGATIONS: Tenant shall give to Landlord
immediate verbal and follow-up written notice of any spills, releases,
discharges, disposals, emissions, migrations, removals or transportation of
Hazardous Materials on, under or about any portion of the Premises or in any
Common Areas. Tenant, at its sole cost and expense, covenants and warrants to
promptly investigate, clean up, remove, restore and otherwise remediate
(including, without limitation, preparation of any feasibility studies or
reports and the performance of any and all closures) any spill, release,
discharge, disposal, emission, migration or transportation of Hazardous
Materials arising from or related to the intentional or negligent acts or
omissions of Tenant or Tenant's Representatives such that the affected portions
of the Park and any adjacent property are returned to the condition existing
prior to the appearance of such Hazardous Materials. Any such investigation,
cleanup, removal, restoration and other remediation shall only be performed
after Tenant has obtained Landlord's prior written consent, which consent shall
not be unreasonably withheld so long as such actions would not potentially have
a material adverse long-term or short-term effect on any portion of the
Premises, the Building; the Lot or the Park. Notwithstanding the foregoing,
Tenant shall be entitled to respond immediately to an emergency without first
obtaining Landlord's prior written consent. Tenant, at its sole cost and
expense, shall conduct and perform, or
26
cause to be conducted and performed, all closures as required by any
Environmental Laws or any agencies or other governmental authorities having
jurisdiction thereof. If Tenant fails to so promptly investigate, clean up,
remove, restore, provide closure or otherwise so remediate, Landlord may, but
without obligation to do so, take any and all steps necessary to rectify the
same and Tenant shall promptly reimburse Landlord, upon demand, for all costs
and expenses to Landlord of performing investigation, clean up, removal,
restoration, closure and remediation work. All such work undertaken by Tenant,
as required herein, shall be performed in such a manner so as to enable Landlord
to make full economic use of the Premises, the Building, the Lot and the Park
after the satisfactory completion of such work.
29.5 ENVIRONMENTAL INDEMNITY: In addition to Tenant's obligations as set
forth hereinabove, Tenant and Tenant's officers and directors agree to, and
shall, protect, indemnify, defend (with counsel acceptable to Landlord) and hold
Landlord and the other Indemnitees harmless from and against any and all claims,
judgments, damages, penalties, fines, liabilities, losses (including, without
limitation, diminution in value of any portion of the Premises, the Building,
the Lot or the Park, damages for the loss of or restriction on the use of
rentable or usable space, and from any adverse impact of Landlord's marketing of
any space within the Building and/or Park), suits, administrative proceedings
and costs (including, but not limited to, attorneys' and consultant fees and
court costs) arising at any time during or after the Term of this Lease in
connection with or related to, directly or indirectly, the use, presence,
transportation, storage, disposal, migration, removal, spill, release or
discharge of Hazardous Materials on, in or about any portion of the Premises,
the Common Areas, Building, the Lot or the Park as a result (directly or
indirectly) of the intentional or negligent acts or omissions of Tenant or any
of Tenant's Representatives. Neither the written consent of Landlord to the
release, use or storage of Hazardous Materials in, on, under or about any
portion of the Premises, the Building, the Lot and/or the Park, nor the strict
compliance by Tenant with all Environmental Laws shall excuse Tenant and
Tenant's officers and directors from its obligations of indemnification pursuant
hereto. Tenant shall not be relieved of its indemnification obligations under
the provisions of this Section 29.5 due to Landlord's status as either an
"owner" or "operator" under any Environmental Laws.
29.6 SURVIVAL: Tenant's obligations and liabilities pursuant to the
provisions of this Section 29 shall survive the expiration or earlier
termination of this Lease. If it is determined by Landlord that the condition of
all or any portion of the Premises, the Building, the Lot and/or the Park is not
in compliance with the provisions of this Lease with respect to Hazardous
Materials, including without limitation all Environmental Laws at the expiration
or earlier termination of this Lease, then in Landlord's sole discretion,
Landlord may require Tenant to hold over possession of the Premises until Tenant
can surrender the Premises to Landlord in the condition in which the Premises
existed as of the Commencement Date and prior to the appearance of such
Hazardous Materials except for reasonable wear and tear, including without
limitation, the conduct or performance of any closures as required by any
Environmental Laws. The burden of proof hereunder shall be upon Tenant. For
purposes hereof, the term "reasonable wear and tear" shall not include any
deterioration in the condition or diminution of the value of any portion of the
Premises, the Building, the Lot and/or the Park in any manner whatsoever related
to directly, or indirectly, Hazardous Materials. Any such holdover by Tenant
will be with Landlord's consent, will not be terminable by Tenant in any event
or circumstance and will otherwise be subject to the provisions of Section 22 of
this Lease.
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29.7 DISCLOSURE: The land described herein contains residual hazardous
substances. Such condition renders the land and the owner, Tenant or other
possessor of the land subject to requirements, restrictions, provisions, and
liabilities contained in chapter 6.5 and chapter 6.8 of division 20 of the
Health and Safety Code as same may be amended from time to time, and any
successor statutes thereof. This statement is not a declaration that a hazard to
public health, safety and welfare exists. Notwithstanding anything to the
contrary contained herein, nothing contained in this Section 29 shall be deemed
to make Tenant responsible for any Hazardous Materials existing at the Premises
as of the date of Landlord's delivery of possession of the Premises.
30. FINANCIAL STATEMENTS
Tenant, for the reliance of Landlord, any lender holding or anticipated to
acquire a lien upon the Premises, the Building or the Park or any portion
thereof, or any prospective purchaser of the Building or the Park or any portion
thereof, within ten (10) days after Landlord's request therefor, but not more
often than once annually so long as Tenant is not in default of this Lease,
shall deliver to Landlord the then current audited financial statements of
Tenant (including interim periods following the end of the last fiscal year for
which annual statements are available) which statements shall be prepared or
compiled by a certified public accountant and shall present fairly the financial
condition of Tenant at such dates and the result of its operations and changes
in its financial positions for the periods ended on such dates. If an audited
financial statement has not been prepared, Tenant shall provide Landlord with an
unaudited financial statement and/or such other information, the type and form
of which are acceptable to Landlord in Landlord's reasonable discretion, which
reflects the financial condition of Tenant. If Landlord so requests, Tenant
shall deliver to Landlord an opinion of a certified public accountant, including
a balance sheet and profit and loss statement for the most recent prior year,
all prepared in accordance with generally accepted accounting principles
consistently applied. Any and all options granted to Tenant hereunder shall be
subject to and conditioned upon Landlord's reasonable approval of Tenant's
financial condition at the time of Tenant's exercise of any such option, if
Tenant is not yet profitable.
31. GENERAL PROVISIONS
31.1 TIME: Time is of the essence in this Lease and with respect to each
and all of its provisions in which performance is a factor.
31.2 SUCCESSORS AND ASSIGNS: The covenants and conditions herein contained,
subject to the provisions as to assignment, apply to and bind the heirs,
successors, executors, administrators and assigns of the parties hereto.
31.3 RECORDATION: Tenant shall not record this Lease or a short form
memorandum hereof without the prior written consent of the Landlord.
31.4 LANDLORD'S PERSONAL LIABILITY: The liability of Landlord (which, for
purposes of this Lease, shall include Landlord and the owner of the Building if
other than Landlord) to Tenant for any default by Landlord under the terms of
this Lease shall be limited to the actual interest of Landlord and its present
or future partners or members in the Premises or the Building, and Tenant agrees
to look solely to the Premises for satisfaction of any liability and shall not
look to other assets of Landlord nor seek any recourse against the assets of the
individual partners, members, directors, officers, shareholders, agents or
employees of Landlord (including without limitation, any property
28
management company of Landlord); it being intended that Landlord and the
individual partners, members, directors, officers, shareholders, agents and
employees of Landlord (including without limitation, any property management
company of Landlord) shall not be personally liable in any manner whatsoever for
any judgment or deficiency. The liability of Landlord under this Lease is
limited to its actual period of ownership of title to the Building, and Landlord
shall be automatically released from further performance under this Lease upon
transfer of Landlord's interest in the Premises or the Building.
31.5 SEPARABILITY: Any provisions of this Lease which shall prove to be
invalid, void or illegal shall in no way affect, impair or invalidate any other
provisions hereof and such other provision shall remain in full force and
effect.
31.6 CHOICE OF LAW: This Lease shall be governed by, and construed in
accordance with, the laws of the State of California.
31.7 ATTORNEYS' FEES: In the event any dispute between the parties results
in litigation or other proceeding, the prevailing party shall be reimbursed by
the party not prevailing for all reasonable costs and expenses, including,
without limitation, reasonable attorneys' and experts' fees and costs incurred
by the prevailing party in connection with such litigation or other proceeding,
and any appeal thereof. Such costs, expenses and fees shall be included in and
made a part of the judgment recovered by the prevailing party, if any.
31.8 ENTIRE AGREEMENT: This Lease supersedes any prior agreements,
representations, negotiations or correspondence between the parties, and
contains the entire agreement of the parties on matters covered. No other
agreement, statement or promise made by any party, that is not in writing and
signed by all parties to this Lease, shall be binding.
31.9 WARRANTY OF AUTHORITY: On the date that Tenant executes this Lease,
Tenant shall deliver to Landlord an original certificate of status for Tenant
issued by the California Secretary of State or statement of partnership for
Tenant recorded in the county in which the Premises are located, as applicable,
and such other documents as Landlord may reasonably request with regard to the
lawful existence of Tenant. Each person executing this Lease on behalf of a
party represents and warrants that (1) such person is duly and validly
authorized to do so on behalf of the entity it purports to so bind, and (2) if
such party is a partnership, corporation or trustee, that such partnership,
corporation or trustee has full right and authority to enter into this Lease and
perform all of its obligations hereunder, Tenant hereby warrants that this Lease
is valid and binding upon Tenant and enforceable against Tenant in accordance
with its terms.
31.10 NOTICES: Any and all notices and demands required or permitted to be
given hereunder to Landlord shall be in writing and shall be sent: (a) by United
States mail, certified and postage prepaid; or (b) by personal delivery; or (c)
by overnight courier, addressed to Landlord at 101 Lincoln Centre Drive, Fourth
Floor, Foster City, California 94404-1167, with a copy to AMB Property L.P., c/o
AMB Property Corporation at 505 Montgomery Street, San Francisco, California
94111. Any and all notices and demands required or permitted to be given
hereunder to Tenant shall be in writing and shall be sent: (i) by United States
mail, certified and postage prepaid; or (ii) by personal delivery to any
employee or agent of Tenant over the age of eighteen (18) years of age; or (iii)
by overnight courier, all of which shall be addressed to Tenant at the Premises.
Notice and/or demand shall be deemed given upon the earlier of actual receipt or
the third day following deposit in
29
the United States mail. Any notice or requirement of service required by any
statute or law now or hereafter in effect, including, but not limited to,
California Code of Civil Procedure Sections 1161, 1161.1, and 1162 (including
any amendments, supplements or substitutions thereof), is hereby waived by
Tenant.
31.11 JOINT AND SEVERAL: If Tenant consists of more than one person or
entity, the obligations of all such persons or entities shall be joint and
several.
31.12 COVENANTS AND CONDITIONS: Each provision to be performed by Tenant
hereunder shall be deemed to be both a covenant and a condition.
31.13 WAIVER OF JURY TRIAL: The parties hereto shall and they hereby do
waive trial by jury in any action, proceeding or counterclaim brought by either
of the parties hereto against the other on any matters whatsoever arising out of
or in any way related to this Lease, the relationship of Landlord and Tenant,
Tenant's use or occupancy of the Premises, the Building or the Park, and/or any
claim of injury, loss or damage.
31.14 COUNTERCLAIMS: In the event Landlord commence any proceedings for
nonpayment of Rent, Additional Rent, or any other sums or amounts due hereunder,
Tenant shall not interpose any counterclaim of whatever nature or description in
any such proceedings, provided, however, nothing contained herein shall be
deemed or construed as a waiver of the Tenant's right to assert such claims in
any separate action brought by Tenant or the right to offset the amount of any
final judgment owed by Landlord to Tenant.
31.15 UNDERLINING: The use of underlining within the Lease is for
Landlord's reference purposes only and no other meaning or emphasis is intended
by this use, nor should any be inferred.
31.16 MERGER: The voluntary or other surrender of this Lease by Tenant, the
mutual termination or cancellation hereof by Landlord and Tenant, or a
termination of this Lease by Landlord for a material default by Tenant
hereunder, shall not work a merger, and, at the sole option of Landlord, (i)
shall terminate all or any existing subleases or subtenancies, or (ii) may
operate as an assignment to Landlord of any or all of such subleases or
subtenancies. Landlord's election of either or both of the foregoing options
shall be exercised by delivery by Landlord of written notice thereof to Tenant
and all known subtenants under any sublease.
32. SIGNS
All signs and graphics of every kind visible in or from public view or
corridors or the exterior of the Premises shall be subject to Landlord's prior
written approval and shall be subject to any applicable governmental laws,
ordinances, and regulations and in compliance with Landlord's sign criteria as
same may exist from time to time or as set forth in EXHIBIT H hereto and made a
part hereof. Tenant shall remove all such signs and graphics prior to the
termination of this Lease. Such installations and removals shall be made in a
manner as to avoid damage or defacement of the Premises; and Tenant shall repair
any damage or defacement, including without limitation, discoloration caused by
such installation or removal. Landlord shall have the right, at its option, to
deduct from the Security Deposit such sums as are reasonably necessary to remove
such signs, including, but not limited to, the costs and expenses associated
with any repairs necessitated by such removal. Notwithstanding the foregoing, in
no event shall any: (a) neon, flashing or moving sign(s)
30
or (b) sign(s) which shall interfere with the visibility of any sign, awning,
canopy, advertising matter, or decoration of any kind of any other business or
occupant of the Building or the Park be permitted hereunder. Tenant further
agrees to maintain any such sign, awning, canopy, advertising matter, lettering,
decoration or other thing as may be approved in good condition and repair at all
times.
33. MORTGAGEE PROTECTION
Upon any default on the part of Landlord, Tenant will give written notice
by registered or certified mail to any beneficiary of a deed of trust or
mortgagee of a mortgage covering the Premises who has provided Tenant with
notice of their interest together with an address for receiving notice, and
shall offer such beneficiary or mortgagee a reasonable opportunity to cure the
default (which, in no event shall be less than ninety (90) days), including time
to obtain possession of the Premises by power of sale or a judicial foreclosure,
if such should prove necessary to effect a cure. If such default cannot be cured
within such time period, then such additional time as may be necessary will be
given to such beneficiary or mortgagee to effect such cure so long as such
beneficiary or mortgagee has commenced the cure within the original time period
and thereafter diligently pursues such cure to completion, in which event this
Lease shall not be terminated while such cure is being diligently pursued.
Tenant agrees that each lender to whom this Lease has been assigned by Landlord
is an express third party beneficiary hereof. Tenant shall not make any
prepayment of Rent more than one (1) month in advance without the prior written
consent of each such lender, except if Tenant is required to make quarterly
payments of Rent in advance pursuant to the provisions of Section 8 above.
Tenant waives the collection of any deposit from such lender(s) or any purchaser
at a foreclosure sale of such lender(s)' deed of trust unless the lender(s) or
such purchaser shall have actually received and not refunded the deposit. Tenant
agrees to make all payments under this Lease to the lender with the most senior
encumbrance upon receiving a direction, in writing, to pay said amounts to such
lender. Tenant shall comply with such written direction to pay without
determining whether an event of default exists under such lender's loan to
Landlord.
34. QUITCLAIM
Upon any termination of this Lease, Tenant shall, at Landlord's request,
execute, have acknowledged and deliver to Landlord a quitclaim deed of Tenant's
interest in and to the Premises. If Tenant fails to so deliver to Landlord such
a quitclaim deed, Tenant hereby agrees that Landlord shall have the full
authority and right to record such a quitclaim deed signed only by Landlord and
such quitclaim deed shall be deemed conclusive and binding upon Tenant.
35. MODIFICATIONS FOR LENDER
If, in connection with obtaining financing for the Premises or any portion
thereof, Landlord's lender shall request reasonable modification(s) to this
Lease as a condition to such financing, Tenant shall not unreasonably withhold,
delay or defer its consent thereto, provided such modifications do not
materially adversely affect Tenant's rights hereunder or the use, occupancy or
quiet enjoyment of Tenant hereunder.
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36. WARRANTIES OF TENANT
Tenant hereby warrants and represents to Landlord, for the express benefit
of Landlord, that Tenant has undertaken a complete and independent evaluation of
the risks inherent in the execution of this Lease and the operation of the
Premises for the use permitted hereby, and that, based upon said independent
evaluation, Tenant has elected to enter into this Lease and hereby assumes all
risks with respect thereto. Tenant hereby further warrants and represents to
Landlord, for the express benefit of Landlord, that in entering into this Lease,
Tenant has not relied upon any statement, fact, promise or representation
(whether express or implied, written or oral) not specifically set forth herein
in writing and that any statement, fact, promise or representation (whether
express or implied, written or oral) made at any time to Tenant, which is not
expressly incorporated herein in writing, is hereby waived by Tenant.
37. COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT
Landlord and Tenant hereby agree and acknowledge that the Premises, the
Building and/or the Park may be subject to the requirements of the Americans
with Disabilities Act, a federal law codified at 42 U.S.C. 12101 ET SEQ.,
including, but not limited to Title III thereof, all regulations and guidelines
related thereto, together with any and all laws, rules, regulations, ordinances,
codes and statutes now or hereafter enacted by local or state agencies having
jurisdiction thereof, including all requirements of Title 24 of the State of
California, as the same may be in effect on the date of this Lease and may be
hereafter modified, amended or supplemented (collectively, the "ADA"). Tenant
shall be solely responsible for conducting its own independent investigation of
this matter and for ensuring that the design of all improvements or alterations
to be made to the Premises by, or on behalf of, Tenant strictly comply with all
requirements of the ADA. Subject to reimbursement pursuant to Section 6 of the
Lease, if any barrier removal work or other work is required to the Building,
the Common Areas or the Park under the ADA, then such work shall be the
responsibility of Landlord; provided, if such work is required under the ADA as
a result of Tenant's use of the Premises or any work or alteration made to the
Premises by or on behalf of Tenant, then such work shall be performed by
Landlord at the sole cost and expense of Tenant. Except as otherwise expressly
provided in this provision, Tenant shall be responsible at its sole cost and
expense for fully and faithfully complying with all applicable requirements of
the ADA, including without limitation, not discriminating against any disabled
persons in the operation of Tenant's business in or about the Premises, and
offering or otherwise providing auxiliary aids and services as, and when,
required by the ADA. Within ten (10) days after receipt, Landlord and Tenant
shall advise the other party in writing, and provide the other with copies of
(as applicable), any notices alleging violation of the ADA relating to any
portion of the Premises or the Building; any claims made or threatened in
writing regarding noncompliance with the ADA and relating to any portion of the
Premises or the Building; or any governmental or regulatory actions or
investigations instituted or threatened regarding noncompliance with the ADA and
relating to any portion of the Premises or the Building. Tenant shall and hereby
agrees to protect, defend (with counsel acceptable to Landlord) and hold
Landlord and the other Indemnitees harmless and indemnify the Indemnitees from
and against all liabilities, damages, claims, losses, penalties, judgments,
charges and expenses (including reasonable attorneys' fees, costs of court and
expenses necessary in the prosecution or defense of any litigation including the
enforcement of this provision) arising from or in any way related to, directly
or indirectly, Tenant's or Tenant's Representatives' violation or alleged
violation of the ADA. Tenant agrees that the obligations of Tenant herein shall
survive the expiration or earlier termination of this Lease.
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38. BROKERAGE COMMISSION
Landlord and Tenant each represents and warrants for the benefit of the
other that it has had no dealings with any real estate broker, agent or finder
in connection with the Premises and/or the negotiation of this Lease, except for
the Broker(s) (as set forth on Page 1), and that it knows of no other real
estate broker, agent or finder who is or might be entitled to a real estate
brokerage commission or finder's fee in connection with this Lease or otherwise
based upon contacts between the claimant and Tenant. Each party shall indemnify
and hold harmless the other from and against any and all liabilities or expenses
arising out of claims made for a fee or commission by any real estate broker,
agent or finder in connection with the Premises and this Lease other than
Broker(s), if any, resulting from the actions of the indemnifying party. Any
real estate brokerage commission or finder's fee payable to the Broker(s) in
connection with this Lease shall only be payable and applicable to the extent of
the initial Term of the Lease and to the extent of the Premises as same exist as
of the date on which Tenant executes this Lease. Unless expressly agreed to in
writing by Landlord and Broker(s), no real estate brokerage commission of
finder's fee shall be owed to, or otherwise payable to, the Brokers) or any
renewals or other extensions of the initial Term of this Lease or for any
additional space leased by Tenant other than the Premises as same exists as of
the date on which Tenant executes this Lease. Tenant further represents and
warrants to Landlord that Tenant will not receive (i) any portion of any
brokerage commission or finder's fee payable to the Broker(s) in connection with
this Lease or (ii) any other form of compensation or incentive from the
Broker(s) with respect to this Lease.
39. QUIET ENJOYMENT
Landlord covenants with Tenant, upon the paying of Rent and observing and
keeping the covenants, agreements and conditions of this Lease on its part to be
kept, and during the periods that Tenant is not otherwise in default of any of
the terms or provisions of this Lease, and subject to the rights of any of
Landlord's lenders, (i) that Tenant shall and may peaceably and quietly hold,
occupy and enjoy the Premises and the Common Areas during the Term of this
Lease, and (ii) neither Landlord, nor any successor or assign of Landlord, shall
disturb Tenant's occupancy or enjoyment of the Premises and the Common Areas.
40. LANDLORD'S ABILITY TO PERFORM TENANT'S UNPERFORMED OBLIGATIONS
Notwithstanding anything to the contrary contained in this Lease, if Tenant
shall fail to perform any of the terms, provisions, covenants or conditions to
be performed or complied with by Tenant pursuant to this Lease, and/or if the
failure of Tenant relates to a matter which in Landlord's judgment reasonably
exercised is of an emergency nature and such failure shall remain uncured for a
period of time commensurate with such emergency, then Landlord may, at
Landlord's option without any obligation to do so, and in its sole discretion as
to the necessity therefor, perform any such term, provision, covenant, or
condition, or make any such payment and Landlord by reason of so doing shall not
be liable or responsible for any loss or damage thereby sustained by Tenant or
anyone holding under or through Tenant. If Landlord so performs any of Tenant's
obligations hereunder, the full amount of the cost and expense entailed or the
payment so made or the amount of the loss so sustained shall immediately be
owing by Tenant to Landlord, and Tenant shall promptly pay to Landlord upon
demand, as Additional Rent, the full amount thereof with interest thereon from
the date of payment at the greater of (i) ten percent (10%) per annum, or (ii)
the highest rate permitted by applicable law and Enforcement Expenses.
33
41. TENANT'S EARLY TERMINATION OPTION
41.1 TERMINATION DATE: Tenant shall have a one-time option (the
"Termination Option") to terminate this Lease, effective as of the April 15,
2001 (the "Termination Date"). The Termination Option is granted subject to the
following terms and conditions:
41.1.1 PERMIT APPROVAL: So long as Tenant has submitted its plans for Plan
Check and Conditional Use Permit Approval by December 15th, 2000, and, despite
the exercise of Tenant's best efforts to obtain such Plan Check and Conditional
Use Permit Approval, by or before March 15, 2001, Tenant has not received
approval of a Conditional Use Permit and/or Building Permit by the City of Menlo
Park for Tenant's Alterations to the Premises (i) to accommodate Tenant's use of
the Premises as an R&D Lab for research on lab animals, and (ii) with an
employee count of no more than twenty-five employees at the Premises; and
41.1.2 NOTICE: Tenant delivers to Landlord written notice of Tenant's
election to exercise the Termination Option, which notice is given no later than
March 15, 2001 (the "Termination Notice"); and
41.1.3 NO DEFAULT: Tenant is not then in default under this Lease beyond
any applicable cure periods either on the date that Tenant exercises the
Termination Option, or unless waived in writing by Landlord, on the Termination
Date; and
41.1.4 TERMINATION FEE: Tenant pays to Landlord concurrently with delivery
of the Termination Notice, a cash lease termination fee (the "Fee") equal to one
hundred twenty-three thousand one hundred eighty and 00/100 dollars
($123,180.00).
41.2 TERMS: If Tenant timely and properly exercises the Termination Option,
(i) all rent payable under this Lease shall be paid through and apportioned as
of the Termination Date (in addition to payment by Tenant of the Fee); (ii)
neither party shall have any rights, estates, liabilities, or obligations under
this Lease for the period accruing after the Termination Date, except those
which by the provisions of this Lease, expressly survive the expiration or
termination of the Term of this Lease; (iii) Tenant shall surrender and vacate
the Premises and deliver possession thereof to Landlord on or before the
Termination Date in the condition required under this Lease for surrender of the
Premises; and (iv) Landlord and Tenant shall enter into a written agreement
reflecting the termination of this Lease upon the terms provided for herein,
which agreement shall be executed within thirty (30) days after Tenant exercises
the termination Option and delivers to Landlord the written notice required
above. It is the parties' intention that nothing contained herein shall impair,
diminish or otherwise prevent Landlord from recovering from Tenant such
additional sums as maybe necessary for payment of Tenant's Share of the
Operating Expenses, Tax Expenses, Common Area Utility Cos., Utility Expenses,
Administrative Charges and any other sums due and payable under this Lease
allocated to any period prior to the Termination Date, including, any sums
required to repair any damage to the Premises and/or restore the Premises to the
condition required under the provisions of this Lease.
TERMINATION: The Termination Option shall automatically terminate and
become null and void upon the earlier to occur of (i) the breach or default by
Tenant of any of the terms of this Lease beyond any applicable cure periods
either on the date that tenant exercises the Termination Option, or unless
waived in writing by Landlord, on the Termination Date; (ii) the termination of
Tenant's
34
right to possession of the Premises under the provisions of this Lease;
or (iii) the failure of Tenant to timely or properly exercise the Termination
option as contemplated herein. This Termination Option is personal to Tenant and
may not be assigned voluntarily, separate from or as part of the Lease.
IN WITNESS WHEREOF, this Lease is executed by the parties as of the Lease
Date referenced on Page 1 of this Lease.
TENANT:
DELTAGEN, INC.,
a California corporation
By:
--------------------------------------
Its:
--------------------------------------
Date:
--------------------------------------
By:
----------------------------------------
Its:
----------------------------------------
Date:
----------------------------------------
LANDLORD:
AMB PROPERTY, L.P.,
a Delaware limited partnership
By: AMB PROPERTY CORPORATION,
a Maryland corporation, its general partner
By:
--------------------------------
Name
Its:
--------------------------------
Date:
-----------------------------------------
If Tenant is a CORPORATION, the authorized officers must sign on behalf of the
corporation and indicate the capacity in which they are signing. The Lease must
be executed by the president or vice-president AND the secretary or assistant
secretary, UNLESS the bylaws or a resolution of the board of directors shall
otherwise provide, in which event, the bylaws or a certified copy of the
resolution, as the case may be, must be attached to this Lease.
35
EXHIBIT A
PREMISES
This exhibit, entitled "Premises", is and shall constitute EXHIBIT A to
that certain Lease Agreement dated October 1, 2000 (the "Lease"), by and between
AMB PROPERTY, L.P., a Delaware limited partnership ("Landlord") and Deltagen,
Inc., a California corporation ("Tenant") for the leasing of certain premises
located in the Willow Park at Building B, 1210 Hamilton Court, Menlo Park,
California (the "Premises").
The Premises consist of the rentable square footage of space specified in
the Basic Lease Information and has the address specified in the Basic Lease
Information. The Premises are a part of and are contained in the Building
specified in the Basic Lease Information. The area below depicts the Premises
within the Building:
[MAP GOES HERE]
A-1
EXHIBIT B
TENANT IMPROVEMENTS
This exhibit, entitled "Tenant Improvements", is and shall constitute
EXHIBIT B to that certain Lease Agreement dated October 1, 2000 (the "Lease"),
by and between AMB PROPERTY, L.P., a Delaware limited partnership ("Landlord")
and Deltagen, Inc., a California corporation ("Tenant") for the leasing of
certain premises located in the Willow Park at Building B, 1210 Hamilton Court,
Menlo Park, California (the "Premises"). The terms, conditions and provisions of
this EXHIBIT B are hereby incorporated into and are made a part of the Lease.
Any capitalized terms used herein and not otherwise defined herein shall have
the meaning ascribed to such terms as set forth in the Lease:
TENANT IMPROVEMENTS, AS-IS CONDITION: Tenant hereby accepts the Premises as
suitable for Tenant's intended use and as being in good operating order,
condition and repair, "AS-IS", and without representation or warranty by
Landlord nor any of Landlord's agents, representatives or employees as to the
suitability, fitness, condition, use or occupancy which may be made thereof.
Tenant further acknowledges and agrees that neither Landlord nor any of
Landlord's agents, representatives or employees has agreed to undertake any
alterations or construct any improvements ("Tenant Improvements") to the
Premises. Any exceptions to the foregoing must be by written agreement executed
by Landlord and Tenant.
B-1
EXHIBIT C
RULES AND REGULATIONS
This exhibit, entitled "Rules & Regulations", is and shall constitute
EXHIBIT C to that certain Lease Agreement dated October 1, 2000 (the "Lease"),
by and between AMB PROPERTY, L.P., a Delaware limited partnership ("Landlord")
and Deltagen, Inc., a California corporation ("Tenant") for the leasing of
certain premises located in the Willow Park at Building B, 1210 Hamilton Court,
Menlo Park, California (the "Premises"). The terms, conditions and provisions of
this EXHIBIT C are hereby incorporated into and are made a part of the Lease.
Any capitalized terms used herein and not otherwise defined herein shall have
the meaning ascribed to such terms as set forth in the Lease:
1. No advertisement, picture or sign of any sort shall be displayed on or
outside the Premises or the Building without the prior written consent of
Landlord. Landlord shall have the right to remove any such unapproved item
without notice and at Tenant's expense.
2. Tenant shall not regularly park motor vehicles in designated parking areas
after the conclusion of normal daily business activity.
3. Tenant shall not use any method of heating or air conditioning other than
that supplied by Landlord without the prior written consent of Landlord.
4. All window coverings installed by Tenant and visible from the outside of
the Building require the prior written approval of Landlord.
5. Tenant shall not use, keep or permit to be used or kept any foul or noxious
gas or substance or any flammable or combustible materials on or around the
Premises, the Building or the Park.
6. Tenant shall not alter any lock or install any new locks or bolts on any
door at the Premises without the prior consent of Landlord.
7. Tenant agrees not to make any duplicate keys without the prior consent of
Landlord.
8. Tenant shall park motor vehicles in those general parking areas as
designated by Landlord except for loading and unloading. During those
periods of loading and unloading, Tenant shall not unreasonably interfere
with traffic flow within the Park and loading and unloading areas of other
Tenants.
9. Tenant shall not disturb, solicit or canvas any occupant of the Building or
Park and shall cooperate to prevent same.
10. No person shall go on the roof without Landlord's permission.
11. Business machines and mechanical equipment belonging to Tenant which cause
noise or vibration that may be transmitted to the structure of the
Building, to such, a degree as to be objectionable to Landlord or other
Tenants, shall be placed and maintained by Tenant, at Tenant's expense, on
vibration eliminators or other devices sufficient to eliminate noise or
vibration.
C-1
12. All goods, including material used to store goods, delivered to the
Premises of Tenant shall be immediately moved into the Premises and shall
not be left in parking or receiving areas overnight.
13. Tractor trailers which must be unhooked or parked with dolly wheels beyond
the concrete loading areas must use steel plates or wood blocks under the
dolly wheels prevent damage to the asphalt paving surfaces. No parking or
storing of such trailers will be permitted in the auto parking areas of the
Park or on streets adjacent thereto.
14. Forklifts which operate on asphalt paving areas shall not have solid rubber
tires and shall only use tires that do not damage the asphalt.
15. Tenant is responsible for the storage and removal of all trash and refuse.
All such trash and refuse shall be contained in suitable receptacles stored
behind screened enclosures at locations approved by Landlord.
16. Tenant shall not store or permit the storage or placement of goods, or
merchandise or pallets or equipment of any sort in or around the Premises,
the Building, the Park or any of the Common Areas of the foregoing. No
displays or sales of merchandise shall be allowed in the parking lots or
other Common Areas.
17. Tenant shall not permit any animals, including, but not limited to, any
household pets, to be brought or kept in or about the Premises, the
Building, the Park or any of the Common Areas of the foregoing; provided,
however, that Tenant shall be allowed to bring into and keep live mice on
the Premises for the purpose of research and development.
18. Tenant shall not permit any motor vehicles to be washed on any portion of
the Premises or in the Common Areas of the Park, nor shall Tenant permit
mechanical work or maintenance of motor vehicles to be performed on any
portion of the Premises or in the Common Areas of the Park.
C-2
EXHIBIT D
WILLOW PARK
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
This Declaration of Covenants, Conditions and Restrictions (hereinafter
called "Declaration") is made this twenty-fifth day of August 1979, by LINCOLN
PROPERTY COMPANY NO. 238, A CALIFORNIA LIMITED PARTNERSHIP (PHASES 1 & 2);
LINCOLN PROPERTY COMPANY NO. 287, LTD., A CALIFORNIA LIMITED PARTNERSHIP (PHASE
3); LINCOLN PROPERTY COMPANY NO. 355, LTD., A CALIFORNIA LIMITED PARTNERSHIP
(PHASE 4); LINCOLN PROPERTY COMPANY NO. 440, LTD., A CALIFORNIA LIMITED
PARTNERSHIP (PHASE 5); LINCOLN PROPERTY COMPANY NO. 1179, A CALIFORNIA LIMITED
PARTNERSHIP (PHASE 6); LINCOLN PROPERTY COMPANY NO. 2036 LIMITED PARTNERSHIP, A
CALIFORNIA LIMITED PARTNERSHIP (PHASE 7) (hereinafter called "Lincoln Property
Company").
RECITALS
1. Declarant is, or at the time of recording this Declaration will be, the
Owner in fee of all that certain real property which is situated in the City of
Menlo Park, County of San Mateo, State of California, described on the map
(hereinafter called "Map") entitled "Memo Industrial Center, Menlo Park,
California" which Map is filed in the office of the Recorder of the County of
San Mateo, State of California, on October 1, 1979, in Book No. 99 of Maps, at
pages 81, 82 and 83.
2. As Owner of the real property described in Paragraph 1 of these
Recitals, Declarant has executed this Declaration for the purpose of imposing
upon all portions of said real property (other than Parcel E as shown on the
Map) a general plan of improvement for the benefit of said real property (other
than said Parcel E) and its present and future owners. Said real property (other
than Parcel E) is hereinafter called the "Property."
NOW, THEREFORE, Declarant hereby declares that the Property is now held,
and shall hereafter be held, developed, encumbered, hypothecated, transferred,
sold, leased, conveyed, improved, used and occupied subject to the covenants,
conditions, restrictions and limitations hereinafter set forth, all of which are
declared to be in furtherance of a plan for the development and operation of a
landscaped business and industrial park and are established for the purpose of
enhancing and protecting the value, attractiveness and desirability of the
Property and every part thereof. Each of the covenants, conditions, restrictions
and limitations set forth herein shall run with the land, and every part
thereof, and shall burden as well as inure to the benefit of and pass with each
and every portion of the Property hereinafter developed, encumbered,
hypothecated, transferred, sold, leased, conveyed, improved, used or occupied
and shall apply to and bind any and all parties having or acquiring any right,
title, license or interest in the Property or any part thereof.
ARTICLE I
DEFINITIONS
Unless the context otherwise specifies or requires, the terms defined in
this Article I shall, for all purposes of this Declaration, have the meanings
herein specified.
1.1 BUILDING. "Building" shall mean the principal structure or structures
on any Site, including all garages, outside platforms, outbuildings, docks and
the like.
D-1
1.2 DECLARANT. "Declarant" shall mean Lincoln Property Company, its
successors and assigns. Declarant's assigns shall be deemed to include any party
whom Declarant designates, by means of a notice recorded in the Official Records
of San Mateo County, as the party who, from and after the date such notice is
recorded, will perform Declarant's functions under his Declaration.
1.3 DEED OF TRUST. "Deed of Trust" shall mean, with respect to any portion
of the property, a duly recorded Deed of Trust, mortgage or other instrument
which created a lien on the portion of the Property is describes.
1.4 IMPROVEMENTS. "Improvements" shall mean and include without limitation
buildings, outbuildings, pedestrian and vehicle access facilities, parking
areas, loading areas, fences, walls, hedged mass plantings, landscaping, poles,
signs and any structures of any type or kind.
1.5 OWNER. "Owner" shall mean any person, firm, corporation or other legal
entity (including Declarant) which owns fee title to a Site, as shown by the
Official Records of the County of San Mateo; provided, however, that the term
"Owner" shall not include a mortgage or beneficiary under a deed of trust
holding a security interest in a Site unless such mortgagee or beneficiary is in
actual physical possession of the Site.
Whenever this Declaration creates or imposes an obligation with respect
to a Site, the Owner of the Site shall be responsible for the timely and
proper performance of the obligation, notwithstanding any delegation of such
responsibility by lease, contract, or otherwise to another party.
1.6 PROPERTY. "Property" shall mean that certain real property subject to
the covenants, conditions and restrictions set forth herein, namely, that real
property described on EXHIBIT A attached hereto and incorporated herein.
1.7 SITE. "Site" shall mean a continuous area of land within the Property
which is owned of record by the same Owner, whether shown as one parcel on any
recorded map or as a combination of parcels or of portions thereof.
ARTICLE II
REGULATION OF USES
2.1 PERMITTED USES. Unless otherwise specifically prohibited herein, or by
applicable law, any business/industrial use will be permissible if it does not
constitute a nuisance to adjacent Sites. Permitted uses will include, but not be
limited to, manufacturing, warehousing, distribution, cartage, processing,
storage, wholesaling, office, laboratory, professional and research and
development.
2.2 NUISANCE. No noxious or offensive activity shall be carried on nor
shall anything be done on any Site which may be or become an annoyance or
nuisance to the Owners or occupants of other Sites, or which will be offensive
to the Owners or occupants of other Sites by reason of odor, fumes, discharge of
any chemical or industrial waste above or below ground, dust, dirt, fly-ash,
smoke, noise, glare or which will be hazardous by reason of danger of fire or
explosion or any other hazard.
D-2
2.3 RIGHT OF ENTRY. During reasonable hours and subject to reasonable
security requirements, Declarant or its authorized representative shall have the
right to enter upon and inspect any Building and/or Site and the Improvements
thereon for the purpose of ascertaining whether or not the provisions of this
Declaration have been or are being complied with and shall not be deemed guilty
of trespass by reason of such entry.
ARTICLE III
REGULATION OF IMPROVEMENTS
3.1 MINIMUM SETBACK LINES.
(a) General. No Improvement and no part thereof shall be placed on any
Site closer to a property line than herein provided. The following
Improvements are specifically excluded from these setback provisions:
(1) Roof overhang, subject to the specific approval of Declarant
in writing.
(2) Steps and walks.
(3) Paving and associated curbing, except that vehicle parking
areas shall not be permitted within ten (10) feet of the street
property line or lines.
(4) Fences, except that no fence shall be placed within the
street setback area unless specific approval is given by Declarant in
writing.
(5) Landscaping.
(6) Planters, not to exceed three (3) feet in height.
(7) Railroad spur tracks, switches and bumpers, provided that the
location of such tracks, switches and bumpers is specifically approved
by Declarant in writing.
(8) Displays identifying the Owner, Lessee or occupant, subject
to the specific approval of Declarant in writing.
(b) Setback from interior property lines. No setback is established
from a rear or side interior property line. The interior lot lines for a
corner lot shall be considered to have a real property line.
(c) Setback Street Property Lines. The setback line is established as
twenty (20) feet from property line on all streets on the property.
3.2 COMPLETION OF CONSTRUCTION. After commencement of construction of any
Improvement, the Owner shall diligently prosecute the work thereon to the end
that the Improvement shall not remain in a partly finished condition any longer
than reasonably necessary for the completion thereof.
D-3
3.3 No excavation shall be made except in connection with construction of
an Improvement, and upon completion thereof, exposed openings shall be
backfilled and disturbed ground shall be graded and leveled.
3.4 LANDSCAPING.
(a) Every Site on which a Building shall have been placed shall be
landscaped according to plans approved as specified herein and maintained
thereafter in a sightly and well-kept condition.
(b) An Owner, Lessee or occupant shall landscape and maintain unpaved
areas between the property lines and the setback lines.
(c) An Owner, Lessee or occupant shall provide hose bibs and
maintenance facilities in the vicinity of the landscaped areas.
(d) Landscape as approved by Declarant shall be installed within
ninety (90) days of occupancy or completion of the Building, whichever
occurs first.
3.5 SITE MAINTENANCE. All Improvements on each Site including, without
limitation, all walks, driveways, fences, parking areas, landscaping and the
exterior of all structures on each Site, shall be maintained free of litter and
debris and in good condition, order and repair. Landscaping shall be kept in
thriving condition, weed-free and neatly trimmed. All undeveloped Sites shall be
kept clean, mowed and in a condition so as not to be a dust or weed problem.
3.6 SIGNS AND LIGHTING. No signs or displays shall be created on any
Site, other than the following:
(a) Signs identifying the name, building and business of any
person or firm occupying a Site, the size, design and color of which
has been specifically approved by Declarant in writing; and
(b) Offering a Site for sale or lease if Declarant has
specifically approved said signs in writing.
All signs and displays shall be located below the roof line of
the building and shall comply with all applicable laws and ordinances.
Lighting shall be restricted to parking and security lights, fire
lighting and low-level sign illumination and floodlighting of
buildings or landscaping. All lighting shall be shielded and contained
within property lines.
3.7 PARKING AREAS. Adequate parking on a Site shall be provided to
accommodate all parking needs for employees, visitors and company vehicles.
There shall also be adequate areas provided for truck loading and unloading. The
intent of this provision is to eliminate the need for any on-street parking. If
parking or loading requirements increase as a result of a change in use or
number of employees, additional off-street parking shall be provided to satisfy
the intent of this section.
D-4
3.8 BUILDING REGULATIONS. Any building erected on a Site shall conform to
the following construction practices:
(a) Exterior walls of sheet or corrugated iron, steel, aluminum or
asbestos will be permitted only upon specific approval in writing by
Declarant.
(b) Exterior walls shall be painted or suitably treated in a manner
acceptable to Declarant.
ARTICLE IV
APPROVAL OF PLANS
4.1 No Improvement shall be erected, placed, altered, maintained or
permitted to remain on any land subject to these restrictions until plans and
specifications showing plot layout, including parking and all exterior
elevations, with materials and colors, have been submitted to and approved in
writing by Declarant. Said approval shall be in addition to any approvals and/or
permits required by the City of Menlo Park or any other legal entity having
jurisdiction. Such plans and specifications shall be submitted in writing over
the signature of the Owner of Lessee of the Site or his authorized agent.
4.2 Approval shall be based, among other things, on adequacy of Site
dimensions, adequacy of structural design, conformity and harmony of external
design with neighboring Improvements, effect of location and use of Improvements
on neighboring Sites; proper facing of main elevation with respect to nearby
streets; and conformity of the plans and specifications to the purpose and
general plan and intent of these restrictions. Declarant shall not arbitrarily
or unreasonably withhold its approval of such plans and specifications.
4.3 If Declarant fails either to approve or to disapprove such plans and
specifications within thirty (30) days after the same have been submitted to it,
it shall be conclusively presumed that Declarant has approved said plans and
specifications, subject, however, to the restrictions contained in ARTICLE III
hereof.
4.4 Notwithstanding anything to the contrary herein contained, after the
expiration of one year from the date of issuance of a building permit by
municipal or other governmental authority for any Improvement, said Improvement
shall, in favor of purchasers and encumbrancers in good faith and for value, be
deemed to be in compliance with all provisions of this ARTICLE IV, unless actual
notice of such non-compliance or non-completion executed by Declarant shall
appear of record in the office of the County Recorder of San Mateo County,
California, or unless legal proceedings shall have been instituted to enforce
compliance or completion.
4.5 FEE. An architectural review fee shall be paid to Declarant at the time
plans are submitted for approval based upon the following schedule:
(a) When the plans submitted are prepared by an architect licensed to
practice in the State of California, the architectural review fee shall be
$100.00.
(b) In all other cases, the architectural review fee shall be $200.00.
D-5
ARTICLE V
DURATION AND MODIFICATION AND REPEAL
5.1 TERM. This Declaration, every provision hereof and every covenant,
conditions and restriction contained herein shall continue in full force and
effect for a period of sixty (60) years from the date hereof.
5.2 TERMINATION AND MODIFICATION. This Declaration or any provisions
thereof or any covenant, condition or restriction contained herein may be
terminated, extended, modified or amended as to the whole of said property
or any portion thereof, with the written consent of the Owners of sixty-five
percent (65%) in area of the Property; provided that so long as Declarant
owns at least twenty percent (20%) in area of the Property, no such
termination, extension, modification or amendment shall be effective without
Declarant's written approval. No termination, extension, modification or
amendment hereof shall be effective until a written instrument embodying the
same has been executed and recorded in the Official Records of San Mateo
County.
ARTICLE VI
ENFORCEMENT
6.1 ABATEMENT AND SUIT. Violation or breach of any restriction herein
contained shall give to Declarant the right to enter upon the Property upon
or as to which said violation or breach exists and summarily to abate and
remove at the expense of the Owner, Lessee or occupant thereof any structure,
thing or condition that may be or exist thereon contrary to the intent and
meaning of the provisions hereof, or to prosecute a proceeding at law or in
equity against the person or persons who have violated or are attempting to
violate any of these restrictions to enjoin or prevent them from doing so, to
cause said violation to be remedied or to recover damages for said violation.
In addition, every Owner of a Site shall have the right, in the event of
violation or breach of any restriction herein contained, to prosecute a
proceeding at law or in equity against the person or persons who have
violated or are attempting to violate any of these restrictions to enjoin or
to recover damages for said violation. All remedies provided herein or at law
or inequity shall be cumulative and not exclusive.
6.2 DEEMED TO CONSTITUTE A NUISANCE. The result of every action or
omission whereby any restriction herein contained is violated in whole or in
part is hereby declared to be and to constitute a nuisance. Every remedy
allowed by law or equity against an Owner, either public or private, shall be
applicable against every such result and may be exercised by Declarant or by
any Owner of property subject hereto. Any costs or expenses paid or incurred
by Declarant or an Owner (collectively referred to as "Declarant" in this
Section 6.2) in abating such nuisance or prosecuting any such remedy
(including all reasonable attorneys' fees and costs of collection), together
with interest thereon at the rate of ten percent (10%) per annum, shall be a
charge against the Site on which the nuisance has occurred or is occurring,
shall be a continuing lien thereon until paid, and shall also be the personal
obligation of the Owner of such Site when such charges became due and who
committed such breach or violation. In addition to any other rights or
remedies hereunder, Declarant may deliver to the Owner of the Site on which
the nuisance has occurred or is occurring and record with the San Mateo
County Recorder a certificate of notice of claim of lien. If the violation
recited in such lien claim has not been cured to Declarant's satisfaction and
any recited amounts so charged have not been paid within thirty (30) days
thereafter, Declarant or its authorized representative may foreclose such
lien by a sale conducted pursuant to Sections 2924, 2924b and
D-6
2924c of the California Civil Code, as amended from time to time, or other
statues applicable to the exercise of powers of sales in mortgages or Deeds
of Trust, or in any other manner permitted by law. Declarant, through its
authorized representatives, may bid on and acquire any land subject to such
lien at any such foreclosure sale. If the violations recited in such lien
claim are timely cured and any recited amounts timely paid as provided above,
Declarant shall forthwith record an appropriate release of such lien at
Declarant's sole expense.
6.3 ATTORNEYS' FEES. In any legal or equitable proceeding for the
enforcement or to restrain the violation of this Declaration or any provision
hereof, the losing party or parties shall pay the attorneys' fees of the
prevailing party or parties, in such amount as may be fixed by the court in such
proceedings.
6.4 FAILURE TO ENFORCE NOT A WAIVER OF RIGHTS. The failure of Declarant or
any Owner to enforce any restriction herein contained shall in no event be
deemed to be a waiver of the right to do so thereafter nor of the right to
enforce any other restriction.
ARTICLE VII
MISCELLANEOUS PROVISIONS
7.1 ASSIGNMENT OF DECLARANT'S RIGHTS AND DUTIES. Declarant may assign any
and all of its rights, powers, reservations and obligations hereunder to any
person, corporation or association. To be effective, any such assignments must
be accepted in writing by the assignee and the acceptance must be recorded in
the Official Records of San Mateo County. To the extent of the assignment, the
assignee shall have the same rights, obligations, duties and powers and be
subject to the same obligations and duties as given to and assumed by Declarant
herein. The term Declarant as used herein includes all such assignees and their
heirs, successors and assigns. Declarant may also resign as Declarant by
recording a written notice of resignation in the Official Records of San Mateo
County and mailing a copy thereof to each then Owner. The resignation shall be
effective on the date it is recorded and Declarant shall thereafter have no
further rights, powers, reservations, obligation or liabilities hereunder. If at
any time Declarant either resigns or ceases to exist without making an
assignment of its authority as Declarant, a successor Declarant may be appointed
in the same manner as this Declaration, may be terminated, extended, modified or
amended under Section 2 of ARTICLE IV.
7.2 CONSTRUCTIVE NOTICE AND ACCEPTANCE. Every person or other entity who
now or hereafter owns or acquires any right, title or interest in or to any
portion of the Property is and shall be conclusively deemed to have consented
and agreed to every covenant, condition and restriction contained herein,
whether or not any reference to this Declaration is contained in the instrument
by which such person or entity acquired an interest in said property.
7.3 WAIVER. Neither Declarant nor its successors or assigns shall be liable
to any Owner, Lessee, licensee or occupant of land subject to his Declarant by
reason of any mistake in judgment, negligence, nonfeasance, action or inaction
and/or for the enforcement or failure to enforce any provision of this
Declaration. Every Owner, Lessee, licensee or occupant of any of said property
by acquiring his interest therein agrees that he will not bring any action or
suit against Declarant to recover any damages or to seek equitable relief
because of any mistake in judgment, negligence, nonfeasance, action or inaction
and/or the enforcement or failure to enforce any provision of this Declaration.
D-7
7.4 MUTUALITY, RECIPROCITY, RUNS WITH LAND. All covenants, conditions,
restrictions and agreements contained herein are made for the direct, mutual and
reciprocal benefit of each and every part and parcel of the property now or
hereafter made subject to this Declaration, shall create reciprocal rights and
obligations between the respective Owners of all parcels and privity of contract
and estate between all grantees of said parcels, their heirs, successors and
assigns, and shall as to the Owner of each parcel, his heirs, successors and
assigns, operate as covenants running with the land for the benefit of all other
parcels.
7.5 RIGHTS OF BENEFICIARIES. No breach of the restrictions and other
provisions contained herein shall defeat or render invalid the lien of any Deed
of Trust now or hereafter executed upon land subject to these restrictions;
provided, however, that if any portion of said property is sold under a
foreclosure of any mortgage or under the provisions of any deed of trust, any
purchaser at such sale and his successors and assigns shall hold any and all
property so purchased subject to all of the restrictions and other provisions of
this Declaration.
7.6 PARAGRAPH HEADINGS. Paragraph headings, where used herein, are inserted
for convenience only and are not intended to be a part of this Declaration or in
any way to define, limit or describe the scope and intent to the particular
paragraphs to which they refer.
7.7 EFFECT OF INVALIDATION. If any provision of this Declaration is held to
be invalid by any court, the invalidity of such provision shall not affect the
validity of the remaining provisions hereof.
7.8 EXISTING IMPROVEMENTS. Improvements which are completely constructed on
the date this Declaration is recorded are deemed to satisfy all the requirements
hereof.
7.9 ESTOPPEL CERTIFICATE. At the request of an Owner, Declarant shall
supply to such Owner or any actual or potential encumbrancer or purchaser of a
Site a written certificate stating that there are no violations hereof, or if
there are any such violations, the nature of such violations. Such certificate
shall be delivered within ten (10) working days after such request by an Owner.
D-8
EXHIBIT E
HAZARDOUS MATERIALS DISCLOSURE CERTIFICATE
Your cooperation in this matter is appreciated. Initially, the information
provided by you in this Hazardous Materials Disclosure Certificate is necessary
for the Landlord (identified below) to evaluate and finalize a lease agreement
with you as Tenant. After a lease agreement is signed by you and the Landlord
(the "Lease Agreement"), on an annual basis in accordance with the provisions of
Section 29 of the signed Lease Agreement, you are to provide an update to the
information initially provided by you in this certificate. The information
contained in the initial Hazardous Materials Disclosure Certificate and each
annual certificate provided by you thereafter will be maintained in
confidentiality by Landlord subject to release and disclosure as required by (i)
any lenders and owners and their respective environmental consultants, (ii) any
prospective purchaser(s) of all or any portion of the property on which the
Premises are located, (iii) Landlord to defend itself or its lenders, partners
or representatives against any claim or demand, and (iv) any laws, rules,
regulations, orders, decrees, or ordinances, including, without limitation,
court orders or subpoenas. Any and all capitalized terms used herein, which are
not otherwise defined herein, shall have the same meaning ascribed to such term
in the signed Lease Agreement. Any questions regarding this certificate should
be directed to, and when completed, the certificate should be delivered to:
Landlord:
---------------------------------------
---------------------------------------
c/o Legacy Partners Commercial, Inc.
101 Lincoln Centre Drive, Fourth Floor
Foster City, California 94404
Attn: ---------------------------------
Phone: (650) 571-2200
Name of (Prospective) Tenant:
--------------------------------------------
Mailing Address:
--------------------------------------------------------------
- --------------------------------------------------------------------------------
Contact Person, Title and Telephone Number(s):
---------------------------------
Contact Person for Hazardous Waste Materials Management and Manifests and
Telephone Number(s):
------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Address of (Prospective) Premises:
--------------------------------------------
Length of (Prospective) Initial Term:
------------------------------------------
1. GENERAL INFORMATION
Describe the initial proposed operations to take place in, on, or about the
Premises, including, without limitation, principal products processed,
manufactured or assembled
E-1
services and activities to be provided or otherwise conducted. Existing
Tenants should describe any proposed changes to on-going operations.
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----------------------------------------------------------------------
2. USE, STORAGE AND DISPOSAL OF HAZARDOUS MATERIALS
2.1 Will any Hazardous Materials be used, generated, stored or disposed of
in, on or about the Premises? Existing Tenants should describe any
Hazardous Materials which continue to be used, generated, stored or
disposed of in, on or about the Premises.
Wastes Yes [ ] No [ ]
Chemical Products Yes [ ] No [ ]
Other Yes [ ] No [ ]
If Yes is marked, please explain:
-----------------------------------
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----------------------------------------------------------------------
2.2 If Yes is marked in Section 2.1, attach a list of any Hazardous
Materials to be used, generated, stored or disposed of in, on or about
the Premises, including the applicable hazard class and an estimate of
the quantities of such Hazardous Materials at any given time;
estimated annual throughput; the proposed location(s) and method of
storage (excluding nominal amounts of ordinary household cleaners and
janitorial supplies which are not regulated by any Environmental
Laws); and the proposed location(s) and method of disposal for each
Hazardous Material, including, the estimated frequency, and the
proposed contractors or subcontractors. Existing Tenants should attach
a list setting forth the information requested above and such list
should include actual data from on-going operations and the
identification of any variations in such information from the prior
year's certificate.
3. STORAGE TANKS AND SUMPS
3.1 Is any above or below ground storage of gasoline, diesel, petroleum,
or other Hazardous Materials in tanks or sumps proposed in, on or
about the Premises? Existing Tenants should describe any such actual
or proposed activities.
Yes [ ] No [ ]
If Yes is marked, please explain:
-----------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
E-2
4. WASTE MANAGEMENT
4.1 Has your company been issued an EPA Hazardous Waste Generator I.D.
Number? Existing Tenants should describe any additional identification
numbers issued since the previous certificate.
Yes [ ] No [ ]
4.2 Has your company filed a biennial or quarterly reports as a hazardous
waste generator? Existing Tenants should describe any new reports
filed.
Yes [ ] No [ ]
If yes, attach a copy of the most recent report filed.
5. WASTEWATER TREATMENT AND DISCHARGE
5.1 Will your company discharge wastewater or other wastes to:
_____ storm drain? _____ sewer?
_____ surface water? _____ no wastewater or other wastes discharged.
Existing Tenants should indicate any actual discharges. If so,
describe the nature of any proposed or actual discharge(s).
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----------------------------------------------------------------------
5.2 Will any such wastewater or waste be treated before discharge?
Yes [ ] No [ ]
If yes, describe the type of treatment proposed to be conducted.
Existing Tenants should describe the actual treatment conducted.
----------------------------------------------------------------------
----------------------------------------------------------------------
6. AIR DISCHARGES
6.1 Do you plan for any air filtration systems or stacks to be used in
your company's operations in, on or about the Premises that will
discharge into the air; and will such air emissions be monitored?
Existing Tenants should indicate whether or not there are any such air
filtration systems or stacks in use in, on or about the Premises which
discharge into the air and whether such air emissions are being
monitored.
Yes [ ] No [ ]
E-3
If yes, please describe:
---------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
6.2 Do you propose to operate any of the following types of equipment, or
any other equipment requiring an air emissions permit? Existing
Tenants should specify any such equipment being operated in, on or
about the Premises.
_____ spray booth(s) _____ incinerator(s)
_____ dip tank(s) _____ other (please describe)
_____ drying oven(s) _____ no equipment requiring air permits
If yes, please describe:
---------------------------------------------
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----------------------------------------------------------------------
7. HAZARDOUS MATERIALS DISCLOSURES
7.1 Has your company prepared or will it be required to prepare a
Hazardous Materials management plan ("Management Plan") pursuant to
Fire Department or other governmental or regulatory agencies'
requirements? Existing Tenants should indicate whether or not a
Management Plan is required and has been prepared.
Yes [ ] No [ ]
If yes, attach a copy of the Management Plan. Existing Tenants
should attach a copy of any required updates to the Management Plan.
7.2 Are any of the Hazardous Materials, and in particular chemicals,
proposed to be used in your operations in, on or about the Premises
regulated under Proposition 65? Existing Tenants should indicate
whether or not there are any new Hazardous Materials being so used
which are regulated under Proposition 65.
Yes [ ] No [ ]
If yes, please explain:
---------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
8. ENFORCEMENT ACTIONS AND COMPLAINTS
8.1 With respect to Hazardous Materials or Environmental Laws, has your
company ever been subject to any agency enforcement actions,
administrative orders, or consent decrees or has your company received
requests for information, notice or demand letters, or any other
inquiries regarding its operations? Existing Tenants should indicate
whether or not any such actions, orders or decrees have been, or are
in the process of being, undertaken or if any such requests have been
received.
E-4
Yes [ ] No [ ]
If yes, describe the actions, orders or decrees and any continuing
compliance obligations imposed as a result of these actions, orders or
decrees and also describe any requests, notices or demands, and attach
a copy of all such documents. Existing Tenants should describe and
attach a copy of any new actions, orders, decrees, requests, notices
or demands not already delivered to Landlord pursuant to the
provisions of Section 29 of the signed Lease Agreement.
----------------------------------------------------------------------
----------------------------------------------------------------------
8.2 Have there ever been, or are there now pending, any lawsuits against
your company regarding any environmental or health and safety
concerns?
Yes [ ] No [ ]
If yes, describe any such lawsuits and attach copies of the
complaint(s), cross-complaint(s), pleadings and all other documents
related thereto as requested by Landlord. Existing Tenants should
describe and attach a copy of any new complaint(s),
cross-complaint(s), pleadings and other related documents not already
delivered to Landlord pursuant to the provisions of Section 29 of the
signed Lease Agreement.
----------------------------------------------------------------------
----------------------------------------------------------------------
8.3 Have there been any problems or complaints from adjacent Tenants,
owners or other neighbors at your company's current facility with
regard to environmental or health and safety concerns? Existing
Tenants should indicate whether or not there have been any such
problems or complaints from adjacent Tenants, owners or other
neighbors at, about or near the Premises.
Yes [ ] No [ ]
If yes, please describe. Existing Tenants should describe any such
problems or complaints not already disclosed to Landlord under the
provisions of the signed Lease Agreement.
----------------------------------------------------------------------
----------------------------------------------------------------------
9. PERMITS AND LICENSES
9.1 Attach copies of all Hazardous Materials permits and licenses
including a Transporter Permit number issued to your company with
respect to its proposed operations in, on or about the Premises,
including, without limitation, any wastewater discharge permits, air
emissions permits, and use permits or approvals.
E-5
Existing Tenants should attach copies of any new permits and licenses
as well as any renewals of permits or licenses previously issued.
The undersigned hereby acknowledges and agrees that (A) this Hazardous Materials
Disclosure Certificate is being delivered in connection with, and as required
by, Landlord in connection with the evaluation and finalization of a Lease
Agreement and will be attached thereto as an exhibit; (B) that this Hazardous
Materials Disclosure Certificate is being delivered in accordance with, and as
required by, the provisions of Section 29 of the Lease Agreement; and (C) that
Tenant shall have and retain full and complete responsibility and liability with
respect to any of the Hazardous Materials disclosed in the HazMat Certificate
notwithstanding Landlord's/Tenant's receipt and/or approval of such certificate.
Tenant further agrees that none of the following described acts or events shall
be construed or otherwise interpreted as either (a) excusing, diminishing or
otherwise limiting Tenant from the requirement to fully and faithfully perform
its obligations under the Lease with respect to Hazardous Materials, including,
without limitation, Tenant's indemnification of the Indemnitees and compliance
with all Environmental Laws, or (b) imposing upon Landlord, directly or
indirectly, any duty or liability with respect to any such Hazardous Materials,
including, without limitation, any duty on Landlord to investigate or otherwise
verify the accuracy of the representations and statements made therein or to
ensure that Tenant is in compliance with all Environmental Laws; (i) the
delivery of such certificate to Landlord and/or Landlord's acceptance of such
certificate, (ii) Landlord's review and approval of such certificate, (iii)
Landlord's failure to obtain such certificate from Tenant at any time, or (iv)
Landlord's actual or constructive knowledge of the types and quantities of
Hazardous Materials being used, stored, generated, disposed of or transported on
or about the Premises by Tenant or Tenant's Representatives. Notwithstanding the
foregoing or anything to the contrary contained herein, the undersigned
acknowledges and agrees that Landlord and its partners, lenders and
representatives may, and will, rely upon the statements, representations,
warranties, and certifications made herein and the truthfulness thereof in
entering into the Lease Agreement and the continuance thereof throughout the
term, and any renewals thereof, of the Lease Agreement.
I (print name) _________________, acting with full authority to bind the
(proposed) Tenant and on behalf of the (proposed) Tenant, certify, represent and
warrant that the information contained in this certificate is true and correct.
(Prospective) Tenant:
By:
-----------------------------------
Title:
--------------------------------
Date:
---------------------------------
E-6
EXHIBIT F
FIRST AMENDMENT TO LEASE AGREEMENT
CHANGE OF COMMENCEMENT DATE
This First Amendment to Lease Agreement (the "Amendment") is made and
entered into to be effective as of _______________, by and between
______________________ ("LANDLORD"), and ________________ ("TENANT"), with
reference to the following facts:
RECITALS
A. Landlord and Tenant have entered into that certain Lease Agreement dated
_________ (the "Lease"), for the leasing of certain premises containing
approximately rentable square feet of space located at California (the
"Premises") as such Premises are more fully described in the Lease.
B. Landlord and Tenant wish to amend the Commencement Date of the Lease.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Landlord and Tenant hereby agree as follows:
1. RECITALS: Landlord and Tenant agree that the above recitals are true
and correct.
2. The Commencement Date of the Lease shall be _________________________.
3. The last day of the Term of the Lease (the "Expiration Date") shall be
__________.
4. The dates on which the Base Rent will be adjusted are:
for the period ______ to ______ the monthly Base Rent shall be
$__________;
for the period ______ to ______ the monthly Base Rent shall be
$__________; and
for the period ______ to ______ the monthly Base Rent shall be
$__________.
5. EFFECT OF AMENDMENT: Except as modified herein, the terms and
conditions of the Lease shall remain unmodified and continue in full
force and effect. In the event of any conflict between the terms and
conditions of the Lease and this Amendment, the terms and conditions
of this Amendment shall prevail.
6. DEFINITIONS: Unless otherwise defined in this Amendment, all terms not
defined in this Amendment shall have the meaning set forth in the
Lease.
7. AUTHORITY: Subject to the provisions of the Lease, this Amendment
shall be binding upon and inure to the benefit of the parties hereto,
their respective heirs, legal representatives, successors and assigns.
Each party hereto and the persons signing below warrant that the
person signing below on such party's behalf is authorized to do so and
to bind such party to the terms of this Amendment.
8. The terms and provisions of the Lease are hereby incorporated in this
Amendment.
F-1
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date and
year first above written.
[PROPERTY MANAGER: Please provide Tenant information and Word Processing will
complete the signature block]
F-2
EXHIBIT I
TENANT'S TRADE FIXTURES
I-1
LEASE AGREEMENT
BASIC LEASE INFORMATION
LEASE DATE: October 1, 2000
LANDLORD: AMB PROPERTY, L.P.,
a Delaware limited partnership
LANDLORD'S ADDRESS: c/o Legacy Partners Commercial, Inc.
101 Lincoln Centre Drive, Fourth Floor
Foster City, California 94404-1167
TENANT: Deltagen, Inc.
a California corporation
TENANT'S ADDRESS: 1003 Hamilton Court
Menlo Park, California 94025
PREMISES: Approximately 22,237 rentable square feet as
shown on EXHIBIT A
PREMISES ADDRESS: 1255 Hamilton Court
Menlo Park, California 94025
BUILDING A: Approximately 144,800 rentable square feet
LOT (BUILDING'S TAX PARCEL): APN 055-044-010
WILLOW PARK: Approximately 984,954 rentable square feet
PHASE II OF THE PARK: Approximately 253,939 rentable square feet
TERM: December 1, 2000 ("Commencement Date"), through
November 30, 2005 ("Expiration Date")
BASE RENT (Section 3): Twenty Two Thousand Two Hundred Thirty-Seven
and 00/100 Dollars ($22,237.00) per month
ADJUSTMENTS TO BASE RENT: December 1, 2001 - November 30, 2002 $23,126.48
December 1, 2002 - November 30, 2003 $24,051.54
December 1, 2003 - November 30, 2004 $25,013.60
December 1, 2004 - November 30, 2005 $26,014.14
LETTER OF CREDIT (Section 4): One Hundred Thirty Three Thousand Four Hundred
Twenty-Two and 00/100 Dollars ($133,422.00)
*TENANT'S SHARE OF OPERATING EXPENSES (Section 6.1): 9.43% of the Phase
*TENANT'S SHARE OF TAX EXPENSES (Section 6.2): 15.36% of the Building
*TENANT'S SHARE OF COMMON AREA UTILITY COSTS (Section 7): 9.43% of the Phase
*TENANT'S SHARE OF UTILITY EXPENSES (Section 7): 9.43% of the Phase
*The amount of Tenant's Share of the expenses as referenced above shall be
subject to modification as set forth in this Lease.
PERMITTED USES (Section 9): Office, research and
development for gene data technology, but
only to the extent permitted by the City of
Menlo Park and all agencies and governmental
authorities having jurisdiction thereof.
UNRESERVED
PARKING SPACES: Twenty-two (22) non-exclusive/and non-designated spaces
BROKER (Section 38): Legacy Partners Commercial, Inc. for Landlord
EXHIBITS: EXHIBIT A - PREMISES, BUILDING LOT AND/OR PARK
EXHIBIT B - INTENTIONALLY OMITTED
EXHIBIT C - RULES AND REGULATIONS
EXHIBIT D - COVENANTS, CONDITIONS AND RESTRICTIONS
EXHIBIT E - HAZARDOUS MATERIALS DISCLOSURE CERTIFICATE
- EXAMPLE
EXHIBIT F - CHANGE OF COMMENCEMENT DATE - EXAMPLE
EXHIBIT G - TENANT'S INITIAL HAZARDOUS MATERIALS
DISCLOSURE CERTIFICATE
EXHIBIT H - SIGN CRITERIA (INTENTIONALLY OMITTED)
EXHIBIT I - TENANT'S TRADE FIXTURES
TABLE OF CONTENTS
SECTION PAGE
1. Premises...............................................................1
2. Adjustment of Commencement Date; Condition of the Premises.............1
3. Rent...................................................................2
4. Letter of Credit.......................................................2
5. Tenant Improvements....................................................5
6. Additional Rent........................................................5
7. Utilities..............................................................8
8. Late Charges...........................................................9
9. Use of Premises.......................................................10
10. Alterations and Additions and Surrender of Premises...................11
11. Repairs and Maintenance...............................................12
12. Insurance.............................................................13
13. Waiver of Subrogation.................................................15
14. Limitation of Liability and Indemnity.................................15
15. Assignment and Subleasing.............................................16
16. Ad Valorem Taxes......................................................18
17. Subordination.........................................................18
18. Right of Entry........................................................19
19. Estoppel Certificate..................................................19
20. Tenant's Default......................................................20
21. Remedies for Tenant's Default.........................................21
22. Holding Over..........................................................22
23. Landlord's Default....................................................23
24. Parking...............................................................23
25. Sale of Premises......................................................23
26. Waiver................................................................23
27. Casualty Damage.......................................................24
28. Condemnation..........................................................24
29. Environmental Matters/Hazardous Materials.............................25
30. Financial Statements..................................................28
31. General Provisions....................................................28
32. Signs.................................................................30
i
TABLE OF CONTENTS
(continued)
SECTION PAGE
33. Mortgagee Protection..................................................31
34. Quitclaim.............................................................31
35. Modifications for Lender..............................................31
36. Warranties of Tenant..................................................31
37. Compliance with Americans with Disabilities Act.......................32
38. Brokerage Commission..................................................32
39. Quiet Enjoyment.......................................................33
40. Landlord's Ability to Perform Tenant's Unperformed Obligations........33
41. Tenant's Early Termination Option.....................................33
Exhibit A Premises...........................................................A-1
Exhibit B Tenant Improvements................................................B-1
Exhibit C Rules & Regulations................................................C-1
Exhibit D Willow Park - Declaration of Covenants, Conditions and
Restrictions.......................................................D-1
Exhibit E Hazardous Materials Disclosure Certificate.........................E-1
Exhibit F First Amendment to Lease Agreement - Change of Commencement Date...F-1
Exhibit G Tenant's Initial Hazardous Materials Disclosure Certificate........G-1
Exhibit I Tenant's Trade Fixtures............................................I-1
ii
LEASE AGREEMENT
DATE:This Lease is made and entered into as of the Lease Date set forth on Page
I. The Basic Lease Information set forth on Page 1 and this Lease are and
shall be construed as a single instrument.
1. PREMISES
Landlord hereby leases the Premises to Tenant upon the terms and conditions
contained herein. Landlord hereby grants to Tenant a license for the right to
use, on a non-exclusive basis, parking areas and ancillary facilities located
within the Common Areas of the Park, subject to the terms of this Lease.
Landlord and Tenant hereby agree that for purposes of this Lease, as of the
Lease Date, the rentable square footage area of the Premises, the Building, the
Lot and the Park shall be deemed to be the number of rentable square feet as set
forth in the Basic Lease Information on Page 1. Tenant hereby acknowledges that
the rentable square footage of the Premises may include a proportionate share of
certain areas used in common by all occupants of the Building and/or the Park
(for example an electrical room or telephone room). Tenant further agrees that
the number of rentable square feet of the Building, the Lot and the Park may
subsequently change after the Lease Date commensurate with any modifications to
any of the foregoing by Landlord, and Tenant's Share shall accordingly change.
2. ADJUSTMENT OF COMMENCEMENT DATE; CONDITION OF THE PREMISES
2.1 If Landlord cannot deliver possession of the Premises-on the
Commencement Date, Landlord shall not be subject to any liability nor shall the
validity of the Lease be affected; provided, the Lease Term and the obligation
to pay Rent shall commence on the date possession is tendered and the Expiration
Date shall be extended commensurately. In the event the commencement date and/or
the expiration date of this Lease is other than the Commencement Date and/or
Expiration Date specified in the Basic Lease Information, as the case may be,
Landlord and Tenant shall execute a written amendment to this Lease,
substantially in the form of Exhibit F hereto, wherein the parties shall specify
the actual commencement date, expiration date and the date on which Tenant is to
commence paying Rent. The word "Term" whenever used herein refers to the initial
term of this Lease and any extension thereof. By taking possession of the
Premises, Tenant shall be deemed to have accepted the Premises in good condition
and state of repair. Landlord shall repair, at its sole cost and expense, after
receipt of Tenant's written notice thereof, which notice must be delivered to
Landlord within the first ninety (90) days of the term of this Lease, any (i)
mechanical and electrical systems serving the Premises which are not in good
working order to the extent Tenant has not caused such systems to not be in good
working order. Prior to Lease execution, Tenant shall conduct an inspection of
the premises and provide Landlord a copy of such inspection with a list of items
Landlord shall repair. Upon Lease execution Landlord shall commence to complete
all repairs as diligently as possible. If Tenant fails to timely deliver to
Landlord any such written notice of the aforementioned defects or deficiencies
within said 90-day period, Landlord shall have no obligation to perform any such
work thereafter, except as specifically provided in this Lease. Tenant hereby
acknowledges and agrees that neither Landlord nor Landlord's agents or
representatives has made any representations or warranties as to the
suitability, safety or fitness of the Premises for the conduct of Tenant's
business, Tenant's intended use of the Premises or for any other purpose.
2.2 In the event Landlord permits Tenant to occupy the Premises prior to
the Commencement Date, such occupancy shall be at Tenant's sole risk and subject
to all the provisions of this Lease, including, but not limited to, the
requirement to pay Rent and the Security Deposit, and to obtain the insurance
required pursuant to this Lease and to deliver insurance certificates as
required herein. In addition to the foregoing, Landlord shall have the right to
impose such additional conditions on Tenant's early entry as Landlord shall deem
appropriate. If, at any time, Tenant is in default of any term, condition or
provision of this Lease, any such waiver by Landlord of Tenant's requirement to
pay rental payments shall be null and void and Tenant shall immediately pay to
Landlord all rental payments so waived by Landlord.
3. RENT
On the date that Tenant executes this Lease, Tenant shall deliver to
Landlord the original executed Lease, the Base Rent (which shall be applied
against the Rent payable for the first month Tenant is required to pay Base
Rent), the Security Deposit, and all insurance certificates evidencing the
insurance required to be obtained by Tenant under Section 12 of this Lease.
Tenant agrees to pay Landlord, without prior notice or demand, or abatement,
offset deduction or claim the Base Rent specified in the Basic Lease
Information, payable in advance at Landlord's address specified in the Basic
Lease Information on the Commencement Date and thereafter on the first (1st) day
of each month throughout the balance of the Term of the Lease. In addition to
the Base Rent set forth in the Basic Lease Information, Tenant shall pay
Landlord in advance on the Commencement Date and thereafter on the first (1st)
day of each month throughout the balance of the Term of this Lease, as
Additional Rent, Tenant's Share of Operating Expenses, Tax Expenses, Common Area
Utility Costs, and Utility Expenses. Tenant shall also pay to Landlord as
Additional Rent hereunder, immediately on Landlord's demand therefor, any and
all costs and expenses incurred by Landlord to enforce the provisions of this
Lease, including, but not limited to, costs associated with the delivery of
notices, delivery and recordation of notices) of default, attorneys' fees,
expert fees, court costs and filing fees (collectively, the "Enforcement
Expenses"). The term "Rent" whenever used herein refers to the aggregate of all
these amounts. If Landlord permits Tenant to occupy the Premises without
requiring Tenant to pay rental payments for a period of time, the waiver of the
requirement to pay rental payments shall only apply to waiver of the Base Rent
and Tenant shall otherwise perform all other obligations of Tenant required
hereunder. The Rent for any fractional part of a calendar month at the
commencement or termination of the Lease term shall be a prorated amount of the
Rent for a full calendar month based upon a thirty (30) day month. The prorated
Rent shall be paid on the Commencement Date and the first day of the calendar
month in which the date of termination occurs, as the case may be.
4. LETTER OF CREDIT
4.1 Simultaneously with Tenant's execution and delivery to Landlord of this
Lease and the first month's Base Rent in accordance with the provisions of
Section 3 above, Tenant shall deliver to Landlord, as collateral for the full
and faithful performance by Tenant of all of its obligations under this Lease
and for all losses and damages Landlord may suffer as a result of any default by
Tenant under this Lease, an irrevocable and unconditional negotiable letter of
credit (the "Letter of Credit"), in the form and containing the terms required
herein, payable in the City of Foster City, California (or in addition you may
state "payable in the County of San Mateo") running in favor of Landlord issued
by a solvent nationally recognized bank or financial institution with a long
term rating of BBB or higher, under the supervision of the Superintendent of
Banks of the
2
State of California, or a National Banking Association, in the amount of One
Hundred Thirty Three Thousand Four Hundred Twenty-Two and 00/100 Dollars
($133,422.00) (the "LC Amount"). The Letter of Credit shall be (i) at sight and
irrevocable and unconditional, (ii) subject to the terms of this Section 4,
maintained in effect, whether through replacement, renewal or extension, for the
period from the Commencement Date of the Lease and continuing until the date
which is sixty (60) days after the Expiration Date of the Lease (the "Letter of
Credit Expiration Date's and Tenant shall deliver a new Letter of Credit or
certificate of renewal or extension to Landlord at least thirty (30) days prior
to the expiration of the Letter of Credit, without any action whatsoever on the
part of Landlord, (iii) subject to the Uniform Customs and Practices for
Documentary Credits (1993-Rev) International Chamber of Commerce Publication
#500, (iv) fully assignable by Landlord and permit partial draws. In addition to
the foregoing, the form and terms of the Letter of Credit (and the bank issuing
the same) shall be acceptable to Landlord, in Landlord's sole discretion, and
shall provide, among other things, in effect that: (A) Landlord, or its then
managing agent, shall have the right to draw down an amount up to the face
amount of the Letter of Credit upon the presentation to the issuing bank of
Landlord's (or Landlord's then managing agent's) statement that such amount is
due to Landlord under the terms and conditions of this Lease, it being
understood that if Landlord or its managing agent be a limited liability
company, corporation, partnership or other entity, then such statement shall be
signed by a managing member (if a limited liability company) an officer (if a
corporation), a general partner (if a partnership), or any authorized party (if
another entity); (B) the Letter of Credit will be honored by the issuing bank
without inquiry as to the accuracy thereof and regardless of whether the Tenant
disputes the content of such statement; and (C) in the event of a transfer of
Landlord's interest in the Building, Landlord shall transfer the Letter of
Credit, in whole or in part (or cause a substitute letter of credit to be
delivered, as applicable), to the transferee and thereupon the Landlord shall,
without any further agreement between the parties, be released b Tenant from all
liability therefor, and it is agreed that the provisions hereof shall apply to
every transferor assignment of the whole or any portion of said Letter of Credit
to a new landlord.
4.2 Tenant hereby acknowledges and agrees that Landlord is entering into
this Lease in material reliance upon the ability of Landlord to draw upon, the
Letter of Credit upon the occurrence of any default on the part of Tenant
hereunder which continues beyond any applicable notice and cure periods. Tenant
further acknowledges and agrees that if Landlord cannot draw upon the Letter of
Credit within the times and in the manner as anticipated by Landlord herein,
Landlord shall suffer irreparable damage, harm and injury. From time to time
during the Term of this Lease it is anticipated by the parties that the Letter
of Credit will need to be amended, modified and, possibly reissued. Landlord and
Tenant hereby covenant and agree to cooperate with one another to promptly
effectuate any such amendments, modifications and new issuances, including
without limitation, executing and submitting to the Issuer any and all documents
or instruments as may be reasonably required to effectuate same. Each and every
time during the Term of this Lease there is a change in the identity or address
of the parties, including without limitation, any change in the identity of
Landlord due to the sale, transfer or other conveyance by Landlord of its rights
and interests in, to and under this Lease to any other party, person or entity,
the Letter of Credit shall immediately be amended or reissued to reflect such
changes and the parties hereby agree to execute and submit to the Issuer such
further applications, documents and instruments as may be necessary to
effectuate same. It is the intention of the parties that each and every
successor and assign of both Landlord and Tenant be bound by and subject to the
terms and provisions of this Section 4. Landlord may, at any time and without
notice to Tenant and without first obtaining Tenant's consent thereto, assign
all or any portion of its interest in and to the Letter of Credit to another
3
party, person or entity, regardless of whether or not such assignment is
separate from or as a part of the assignment by Landlord of its rights and
interests in and to this Lease.
4.3 If, as a result of any such application or use of all or any part of
the Letter of Credit, the amount of the Letter of Credit shall be less than the
LC Amount, Tenant shall, within five (5) days thereafter, provide Landlord with
additional letters) of credit in an amount equal to the deficiency (or a
replacement letter of credit in the total amount of the LC Amount) and any such
additional (or replacement) letter of credit shall comply with all of the
provisions of this Section 4, and if Tenant fails to comply with the foregoing,
notwithstanding anything to the contrary contained in Section 20 (reference the
Tenant Default Section of the Lease) hereof, the same shall constitute an
incurable default by Tenant. Tenant further covenants and warrants that it will
neither assign nor encumber the Letter of Credit or any part thereof and that
neither Landlord nor its successors or assigns will be bound by any such
assignment, encumbrance, attempted assignment or attempted encumbrance. Without
limiting the generality of the foregoing, if the Letter of Credit expires
earlier than the Letter of Credit Expiration Date, Landlord will accept a
renewal letter of credit or substitute letter of credit (such renewal or
substitute letter of credit to be in effect not later than thirty (30) days
prior to the expiration of the Letter of Credit), which shall be irrevocable and
automatically renewable as above provided through the Letter of Credit
Expiration Date upon the namo terms as the expiring Letter of Credit or such
other terms as may be acceptable to Landlord in its sole discretion. However, if
the Letter of Credit is not timely renewed or a substitute letter of credit is
not timely received, or if Tenant fails to maintain the Letter of Credit in the
amount and in accordance with the terms set forth in this Section 4, Landlord
shall have the right to present such Letter of Credit to the bank in accordance
with the terms of this Section 4, and the entire sum evidenced thereby shall be
paid to and held by Landlord as collateral for performance of all of Tenant's
obligations under this Lease and for all losses and damages Landlord may suffer
as a result of any default by Tenant under this Lease.
4.4 If there shall occur a default under this Lease as set forth in Section
20 (reference Tenant Default Section of the Lease) of this Lease, Landlord may,
but without obligation to do so, draw upon the Letter of Credit, in part or in
whole, to cure any default of Tenant and/or to compensate Landlord for any and
all damages of any kind or nature sustained or which may be sustained by
Landlord resulting from Tenant's default. Tenant agrees not to interfere in any
way with payment to Landlord of the proceeds of the Letter of Credit, either
prior to or following a "draw" by Landlord of any portion of the Letter of
Credit, regardless of whether any dispute exists between Tenant and Landlord as
to Landlord's right to draw from the Letter of Credit. No condition or term of
this Lease shall be deemed to render the Letter of Credit conditional to justify
the issuer of the Letter of Credit in failing to honor a drawing upon such
Letter of Credit in a timely manner.
4.5 Landlord and Tenant acknowledge and agree that in no event or
circumstance shall the Letter of Credit or any renewal thereof or substitute
therefor be (x) deemed to be or treated as a "security deposit" within the
meaning of California Civil Code Section 1950.7 (as supplemented, amended,
replaced and substituted from time to time), (y) subject to the terms of such
Section 1950.7 (as supplemented, amended, replaced and substituted from time to
time), or (z) intended to serve as a "security deposit" within the meaning of
such Section 1950.7 (as supplemented, amended, replaced and substituted from
time to time). The parties hereto (a) recite that the Letter of Credit is not
intended to serve as a security deposit and such Section 1950.7 (as
supplemented, amended, replaced and substituted from time to time), and any and
all other laws, rules and regulations
4
applicable to security deposits in the commercial context ("Security Deposit
Laws") shad have no applicability or relevancy thereto and (b) waive any and all
rights, duties and obligations either party may now or, in the future, will have
relating to or arising from the Security Deposit Laws.
5. TENANT IMPROVEMENTS
Tenant hereby accepts the Premises as suitable for Tenant's intended use
and as being in good operating order, condition and repair, "AS IS" subject to
the provisions in Section 2.1. Tenant acknowledges and agrees that neither
Landlord nor any of Landlord's agents, representatives or employees has made any
representations as to the suitability, fitness or condition of the Premises for
the conduct of Tenant's business or for any other purpose, including without
limitation, any storage incidental thereto. Tenant further acknowledges and
agrees that neither Landlord nor any of Landlord's agents, representatives or
employees has agreed to perform or undertake (i) any alterations to the
Premises, or (ii) construct any improvements in or to the Premises
(collectively, "Tenant Improvements"). Any exception to the foregoing provisions
must be made by express written agreement by both parties.
6. ADDITIONAL RENT
It is intended by Landlord and Tenant that this Lease be a "triple net
lease." The costs and expenses described in this Section 6 and alt other sums,
charges costs and expenses specified in this Lease other than Base Rent are to
be paid by Tenant to Landlord as additional rent (collectively, "Additional
Rent").
6.1 Operating Expenses: In addition to the Base Rent set forth in Section
3, Tenant shall pay Tenant's Share, which is specified in the Basic Lease
Information, of all Operating Expenses as Additional Rent. The term "Operating
Expenses" as used herein shall mean the total amounts paid or payable by
Landlord in connection with the ownership, maintenance, repair and operation of
the Premises, the Building and the Lot, and where applicable, of the Park
referred to in the Basic Lease Information. The amount of Tenant's Share of
Operating Expenses shall be reviewed from time to time by Landlord and shall be
subject to modification by Landlord if there is a change in the rentable square
footage of the Premises, the Building and/or the Park. These Operating Expenses
max include, but are not limited to:
6.1.1 Landlord's cost of repairs to, and maintenance of, the roof, the
roof membrane and the exterior walls of the Building;
6.1.2 Landlord's cost of maintaining the outside paved area,
landscaping and other common areas for the Park. The term "Common Areas"
shall mean all areas and facilities within the Park exclusive of the
Premises and the other portions of the Park leasable exclusively to other
tenants. The Common Areas include, but are not limited to, interior
lobbies, mezzanines, parking areas, access and perimeter roads, sidewalks,
rail spurs, landscaped areas and similar areas and facilities;
6.1.3 Landlord's annual cost of insurance insuring against fire and
extended coverage (including, if Landlord elects, "all risk" or "special
purpose" coverage) and all other insurance, including, but not limited to,
earthquake, flood and/or surface water endorsements for the Building, the
Lot and the Park (including the Common Areas), rental value insurance
against loss
5
of Rent in an amount equal to the amount of Rent for a period of at least
six (6) months commencing on the date of loss, and subject to the
provisions of Section 27 below, any deductible;
6.1.4 Landlord's cost of (i) modifications and/or new improvements to
the Building, the Common Areas and/or the Park occasioned by any rules,
laws or regulations effective subsequent to the date on which the Building
was originally constructed provided, if there are modifications
necessitated by such rules, laws or regulations and required to be made to
the structural portions of the Premises required to be maintained by
Landlord pursuant to Section 11.3 below, then the cost of such
modifications shall be amortized over a reasonable period which shall not
be less than the lesser of fifteen (15) years or the reasonably estimated
useful life of such modification and Tenant shall pay the monthly amortized
portion of such costs as part of the operating expenses; (ii) reasonably
necessary replacement improvements to the Building, the Common Areas and
the Park after the Lease Date; and (iii) new improvements to the Building,
the Common Areas and/or the Park that reduce operating costs or improve
life/safety conditions, all as reasonably determined by Landlord, in its
sole discretion;
6.1.5 If Landlord elects to so procure, Landlord's cost of
preventative maintenance, and repair contracts including, but not limited
to, contracts for elevator systems and heating, ventilation and , air
conditioning systems, lifts for disabled persons, and trash or refuse
collection;
6.1.6 Landlord's cost of security and fire protection services for the
Building and/or the Park, as the case may be, if in Landlord's sole
discretion such services are provided;
6.1.7 Landlord's cost of supplies, equipment, rental equipment and
other similar items used in the operation and/or maintenance of the Park;
6.1.8 Landlord's cost for the repairs and maintenance items set forth
in Section 11.2 below;
6.1.9 Landlord's cost for the management and administration of the
Premises, the Building and/or Park or any part thereof, including, without
limitation, a property management fee, accounting, auditing, billing,
postage, salaries and benefits for clerical and supervisory employees,
whether located on the Park or off-site, payroll taxes and legal and
accounting costs and all fees, licenses and permits related to the
ownership, operation and management of the Park. Such costs, excluding the
cost of on-site management office expenses and employees, shall not exceed
3% of Rent; and
6.1.10 Notwithstanding the forgoing, Tenant shall be responsible for
the cost of replacement of capital expenditures described in this
subparagraph 6.1 only on a prorata basis corresponding to the useful life
of the capital expenditure, based on typical commercial real estate
practices, that will be exhausted during the remainder of the term.
6.2 TAX EXPENSES: In addition to the Base Rent set forth in Section 3,
Tenant shall pay its share, which is specified in the Basic Lease Information,
of all real property taxes applicable to the land and improvements included
within the Lot on which the Premises are situated and one hundred percent (100%)
of all personal property taxes now or hereafter assessed or levied against the
Premises or Tenant's personal property. The amount of Tenant's Share of Tax
Expenses shall
6
be reviewed from time to time by Landlord and shall be subject to modification
by Landlord if there is a change in the rentable square footage of the Premises,
the Building and/or the Park. Tenant shall also pay one hundred percent (100%)
of any increase in real property taxes attributable, in Landlord's sole
discretion, to any and all alterations or other improvements of any kind, which
are above standard improvements customarily installed for similar buildings
located within the Building or the Park (as applicable), whatsoever placed in,
on or about the Premises for the benefit of, at the request of, or by Tenant.
The term "Tax Expenses" shall mean and include, without limitation, any form of
tax and assessment (general, special, supplemental, ordinary or extraordinary),
commercial rental tax, payments under any improvement bond or bonds, license
fees, license tax, business license fee, rental tax, transaction tax, levy, or
penalty imposed by authority having the direct or indirect power of tax
(including any city, county, state or federal government, or any school,
agricultural, lighting, drainage or other improvement district thereof) as
against any legal or equitable interest of Landlord in the Premises, the
Building, the Lot or the Park, as against Landlord's right to rent, or as
against Landlord's business of leasing the Premises or the occupancy of Tenant
or any other tax, fee, or excise, however described, including, but not limited
to, any value added -tax, or any tax imposed in substitution (partially or
totally) of any tax previously included within the definition of real property
taxes, or any additional tax the nature of which was previously included within
the definition of real property taxes. The term "Tax Expenses" shall not include
any franchise, estate, inheritance, net income, or excess profits tax imposed
upon Landlord.
6.3 PAYMENT OF EXPENSES: Landlord shall estimate Tenant's Share of the
Operating Expenses and Tax Expenses for the calendar year in which the Lease
commences. Commencing on the Commencement Date, one-twelfth (1/12th) of this
estimated amount shall be paid by Tenant to Landlord, as Additional Rent, and
thereafter on the first (1st) day of each month throughout the remaining months
of such calendar year. Thereafter, Landlord may estimate such expenses as of the
beginning of each calendar year during the Term of this Lease and Tenant shall
pay one-twelfth (1/12th) of such estimated amount as Additional Rent hereunder
on the first (1st) day of each month during such calendar year and for each
ensuing calendar year throughout the Term of this Lease. Tenant's obligation to
pay Tenant's Share of Operating Expenses and Tax Expenses shall survive the
expiration or earlier termination of this Lease.
6.4 ANNUAL RECONCILIATION: By June 30th of each calendar year, or as soon
thereafter as reasonably possible, Landlord shall endeavor to furnish Tenant
with an accounting of actual Operating Expenses and Tax Expenses. Within thirty
(30) days of Landlord's delivery of such accounting, Tenant shall pay to
Landlord the amount of any underpayment. Notwithstanding the foregoing, failure
by Landlord to give such accounting by such date shall not constitute a waiver
by Landlord of its right to collect any of Tenant's underpayment at any time.
Landlord shall credit the amount of any overpayment by Tenant toward the next
estimated monthly installment(s) falling due, or where the Term of the Lease has
expired, refund the amount of overpayment to Tenant. If the Term of the Lease
expires prior to the annual reconciliation of expenses Landlord shall have the
right to reasonably estimate Tenant's Share of such expenses, and if Landlord
determines that an underpayment is due, Tenant hereby agrees that Landlord shall
be entitled to deduct such underpayment from Tenant's Security Deposit. If
Landlord reasonably determines that an overpayment has been made by Tenant,
Landlord shall refund said overpayment to Tenant as soon as practicable
thereafter. Notwithstanding the foregoing, failure of Landlord to accurately
estimate Tenant's Share of such expenses or to otherwise perform such
reconciliation of expenses, including without limitation, Landlord's failure to
deduct any portion of any underpayment from Tenant's Security Deposit, shall not
constitute a waiver of Landlord's right to collect any of Tenant's
7
underpayment at any time during the Term of the Lease or at any time after the
expiration or earlier termination of this Lease.
6.5 AUDIT: After delivery to Landlord of at least thirty (30) days prior
written notice, Tenant, at its sole cost and expense through any accountant
designated by it, shall have the right to examine and/or audit the books and
records evidencing such costs and expenses for the previous one (I) calendar
year, during Landlord's reasonable business hours but not more frequently than
once during any calendar year. Any such accounting firm designated by Tenant may
not be compensated on a contingency fee basis. The results of any such audit
(and any negotiations between the parties related thereto) shall be maintained
strictly confidential by Tenant and its accounting firm and shall not be
disclosed, published or otherwise disseminated to any other party other than to
Landlord and its authorized agents. Landlord and Tenant shall use their best
efforts to cooperate in such negotiations and to promptly resolve any
discrepancies between Landlord and Tenant in the accounting of such costs and
expenses.
7. UTILITIES
Utility Expenses, Common Area Utility Costs and all other sums or charges
set forth in this Section 7 are considered part of Additional Rent. In addition
to the Base Rent set forth in Section 3 hereof, Tenant shall pay the cost of all
water, sewer use, sewer discharge fees and sewer connection fees, gas, heat,
electricity, refuse pickup, janitorial service, telephone and other utilities
billed or metered separately to the Premises and/or Tenant. Tenant shall also
pay Tenant's Share of any assessments or charges for utility or similar purposes
included within any tax bill for the Lot on which the Premises are situated,
including, without limitation, entitlement fees, allocation unit fees, and/or
any similar fees or charges, and any penalties related thereto. For any such
utility fees or use charges that are not billed or metered separately to Tenant,
including without limitation, water and refuse pick up charges, Tenant shall pay
to Landlord, as Additional Rent, without prior notice or demand, on the
Commencement Date and thereafter on the first (1st) day of each month throughout
the balance of the Term of this Lease the amount which is attributable to
Tenant's use of the utilities or similar services, as reasonably estimated and
determined by Landlord based upon factors such as size of the Premises and
intensity of use of such utilities by Tenant such that Tenant shall pay the
portion of such charges reasonably consistent with Tenant's use of such
utilities and similar services ("Utility Expenses"). If Tenant disputes any such
estimate or determination, then Tenant shall either pay the estimated amount or
cause the Premises to be separately metered at Tenant's sole expense. In
addition, Tenant shall pay to Landlord Tenant's Share of any Common Area utility
costs, fees, charges or expenses ("Common Area Utility Costs"). Tenant shall pay
to Landlord one-twelfth (I/12th) of the estimated amount of Tenant's Share of
the Common Area Utility Costs on the Commencement Date and thereafter on the
first (1st) day of each month throughout the balance of the Term of this Lease
and any reconciliation thereof shall be substantially in4he same manner as
specified in Section 6.4 above. The amount of Tenant's Share of Common Area
Utility Costs shall be reviewed from time to time by Landlord and shall be
subject to modification by Landlord if there is a change in the rentable square
footage of the Premises, the Building and/or the Park. Tenant acknowledges that
the Premises may become subject to the rationing of utility services or
restrictions on utility use as required by a public utility company,
governmental agency or other similar entity having jurisdiction thereof.
Notwithstanding any such rationing or restrictions on use of any such utility
services, Tenant acknowledges and agrees that its tenancy and occupancy
hereunder shall be subject to such rationing restrictions as may be imposed upon
Landlord, Tenant, the Premises, the Building or the Park, and Tenant shall in no
event be
8
excused or relieved from any covenant or obligation to be kept or performed by
Tenant by reason of any such rationing or restrictions. Tenant further agrees to
timely and faithfully pay, prior to delinquency, any amount, tax, charge,
surcharge, assessment or imposition levied, assessed or imposed upon the
Premises, or Tenant's use and occupancy thereof. Notwithstanding anything to the
contrary contained herein, if permitted by applicable Laws, Landlord shall have
the right at any time and from time to time during the Term of this Lease to
either contract for service from a different company or companies (each such
company shall be referred to herein as an "Alternate Service Provider") other
than the company or companies presently providing electricity service for the
Building or the Park (the "Electric Service Provider") or continue to contract
for service from the Electric Service Provider, at Landlord's sole discretion.
Tenant hereby agrees to cooperate with Landlord, the Electric Service Provider,
and any Alternate Service Provider at all times and, as reasonably necessary,
shall allow Landlord, the Electric Service Provider, and any Alternate Service
Provider reasonable access to the Building's electric lines, feeders, risers,
wiring, and any other machinery within the Premises.
8. LATE CHARGES
Any and all sums or charges set forth in this Section 8 are considered part
of Additional Rent. Tenant acknowledges that late payment (the fifth day of each
month or any time thereafter) by Tenant to Landlord of Base Rent, Tenant's Share
of Operating Expenses, Tax Expenses, Common Area Utility Costs, and Utility
Expenses or other sums due hereunder, will cause Landlord to incur costs not
contemplated by this Lease, the exact amount of such costs being extremely
difficult and impracticable to fix. Such costs include, without limitation,
processing and accounting charges, and late charges that may be imposed on
Landlord by the terms of any note secured by any encumbrance against the
Premises, and late charges and penalties due to the late payment of real
property taxes on the Premises. Therefore, if any installment of Rent or any
other sum due from Tenant is not received by Landlord when due (not including
the first occurrence that such payment is not received by Landlord when due, in
such case no late charge shall be incurred), Tenant shall promptly pay to
Landlord all of the following, as applicable: (a) an additional sum equal to ten
percent (10%) of such delinquent amount plus interest on such delinquent amount
at the rate equal to the prime rate plus three percent (3%) for the time period
such payments are delinquent as a late charge for every month or portion thereof
that such sums remain unpaid, (b) the amount of seventy-five dollars ($75) for
each three-day notice prepared for, or served on, Tenant, (c) the amount of
fifty dollars ($50) relating to checks for which there are not sufficient funds.
If Tenant delivers to Landlord a check for which there are not sufficient funds,
Landlord may, at its sole option, require Tenant to replace such check with a
cashier's check for the amount of such check and all other charges payable
hereunder. The parties agree that this late charge and the other charges
referenced above represent a fair and reasonable estimate of the costs that
Landlord will incur by reason of late payment by Tenant. Acceptance of any late
charge or other charges shall not constitute a waiver by Landlord of Tenant's
default with respect to the delinquent amount, nor prevent Landlord from
exercising any of the other rights and remedies available to Landlord for any
other breach of Tenant under this Lease. If a late charge or other charge
becomes payable for any three (3) installments of Rent within any twelve (12)
month period, then Landlord, at Landlord's sole option, can either require the
Rent be paid quarterly in advance, or be paid monthly in advance by cashier's
check or by electronic funds transfer.
9
9. USE OF PREMISES
9.1 COMPLIANCE WITH LAWS, RECORDED MATTERS, AND RULES AND REGULATIONS: The
Premises are to be used solely for the purposes and uses specified in the Basic
Lease Information and for no other uses or purposes without Landlord's prior
written consent, which consent shall not be unreasonably withheld or delayed so
long as the proposed use (i) does not involve the use of Hazardous Materials
other than as expressly permitted under the provisions of Section 29 below, (ii)
does not require any additional parking in excess of the parking spaces already
licensed to Tenant pursuant to the provisions of Section 24 of this Lease, and
(iii) is compatible and consistent with the other uses then being made in the
Park and in other similar types of buildings in the vicinity of the Park, as
reasonably determined by Landlord. The use of the Premises by Tenant and its
employees, representatives, agents, invitees, licensees, subtenants, customers
or contractors (collectively, "Tenant's Representatives") shall be subject to,
and at all times in compliance with, (a) any and all applicable laws,
ordinances, statutes, orders and regulations as same exist from time to time
(collectively, the "Laws"), (b) any and all documents, matters or instruments,
including without limitation, any declarations of covenants, conditions and
restrictions, and any supplements thereto, each of which has been or hereafter
is recorded in any official or public records with respect to the Premises, the
Building, the Lot and/or the Park, or and portion thereof (collectively, the
"Recorded Matters"), and (c) any and all rules and regulations set forth in
Exhibit C, attached to and made a part of this Lease, and any other reasonable
rules and regulations promulgated by Landlord now or hereafter enacted relating
to parking and the operation of the Premises, the Building and the Park
(collectively, the "Rules and Regulations"). Tenant agrees to, and does hereby,
assume full and complete responsibility to ensure that the Premises are adequate
to fully meet the needs and requirements of Tenant's intended operations of its
business within the Premises, and Tenant's use of the Premises and that same are
in compliance with all applicable Laws throughout the Term of this Lease.
Additionally, Tenant shall be solely responsible for the payment of all costs,
fees and expenses associated with any modifications, improvements or alterations
to the Premises, Building, the Common Areas and/or the Park occasioned by the
enactment of, or changes to, any Laws arising from Tenant's particular use of
the Premises or alterations, improvements or additions made to the Premises
regardless of when such Laws became effective.
9.2 PROHIBITION ON USE: Tenant shall not use the Premises or permit
anything to be done in or about the Premises nor keep or bring anything therein
which will in any way conflict with any of the requirements of the Board of Fire
Underwriters or similar body now or hereafter constituted or in any way increase
the existing rate of or affect any policy of fire or other insurance upon the
Building or any of its contents, or cause a cancellation of any insurance
policy. No auctions may be held or otherwise conducted in, on or about the
Premises, the Building, the Lot or the Park without Landlord's written consent
thereto, which consent may be given or withheld in Landlord's sole discretion.
Tenant shall not do or permit anything to be done in or about the Premises which
will in any way obstruct or interfere with the rights of Landlord, other tenants
or occupants of the Building, other buildings in the Park, or other persons or
businesses in the area, or injure or annoy other tenants or use or allow the
Premises to be used for any unlawful or objectionable purpose, as determined by
Landlord, in its reasonable discretion, for the benefit, quiet enjoyment and use
by Landlord and all other tenants or occupants of the Building or other
buildings in the Park; nor shall Tenant cause, maintain or permit any private or
public nuisance in, on or about the Premises, Building, Park and/or the Common
Areas, including, but not limited to, any offensive odors, noises, fumes or
vibrations. Tenant shall not damage or deface or otherwise commit or suffer to
be committed any waste in, upon or about the Premises. Tenant shall not place or
store,
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nor permit any other person or entity to place or store, any property,
equipment, materials, supplies, personal property or any other items or goods
outside of the Premises for any period of time. Tenant shall not permit any live
animals, including, but not limited to, any household pets, to be brought or
kept in or about the Premises. Tenant shall place no loads upon the floors,
walls, or ceilings it excess of the maximum designed load permitted by the
applicable Uniform Building Code or which may damage the Building or outside
areas; nor place any harmful liquids in the drainage systems; nor dump or store
waste materials, refuse or other such materials, or allow such to remain outside
the Building area, except for any non-hazardous or non- harmful materials which
may be stored in refuse dumpsters or in any enclosed trash areas provided.
Tenant shall honor the terms of all Recorded Matters relating to the Premises,
the Building, the Lot and/or the Park. Tenant shall honor the Rules and
Regulations. If Tenant fails to comply with such Laws, Recorded Matters, Rules
and Regulations or the provisions of this Lease, Landlord shall have the right
to collect from Tenant a reasonable sum as a penalty, in addition to all rights
and remedies of Landlord hereunder including, but not limited to, the payment by
Tenant to Landlord of all Enforcement Expenses and Landlord's costs and
expenses, if any, to cure any of such failures of Tenant, if Landlord, at its
sole option, elects to undertake such cure.
10. ALTERATIONS AND ADDITIONS AND SURRENDER OF PREMISES
10.1 ALTERATIONS AND ADDITIONS: Tenant shall not install any signs,
fixtures, improvements, nor make or permit any other alterations or additions to
the Premises without the prior written consent of Landlord. If any such
alteration or addition is expressly permitted by Landlord, Tenant shall deliver
at least twenty (20) days prior notice to Landlord, from the date Tenant intends
to commence construction, sufficient to enable Landlord to post a Notice of
Non-Responsibility. In all events, Tenant shall obtain all permits or other
governmental approvals prior to commencing any of such work and deliver a copy
of same to Landlord. All alterations and additions shall be installed by a
licensed contractor approved by Landlord, at Tenant's sole expense in compliance
with all applicable Laws (including, but not limited to, the ADA as defined
herein), Recorded Matters, and Rules and Regulations. Tenant shall keep the
Premises and the property on which the Premises are situated free from any liens
arising out of any work performed, materials furnished or obligations incurred
by or on behalf of Tenant. As a condition to Landlord's consent to the
installation of any fixtures, additions or other improvements, if Tenant has
been continually late in payment of rent, or prior to making the application to
install improvements Landlord has requested Tenant to make payments of rent on
cashiers check, pursuant to Section 8 of the Lease or Tenant is in material
default and has not cured such default with in the cure periods defined in the
lease, Landlord may require Tenant to post and obtain a completion and indemnity
bond for up to one hundred percent (100%) of the cost of the work.
10.2 SURRENDER OF PREMISES: Upon the termination of this Lease, whether by
forfeiture, lapse of time or otherwise, or upon the termination of Tenant's
right to possession of the Premises, Tenant will at once surrender and deliver
up the Premises, together with the fixtures (other than trade fixtures),
additions and improvements which Landlord has notified Tenant, in writing, that
Landlord will require Tenant not to remove, to Landlord in good condition and
repair (including, but not limited to, replacing all light bulbs and ballasts
not in good working condition) and in the condition in which the Premises
existed as of the Commencement Date, except for reasonable wear and tear.
Reasonable wear and tear shall not include any damage or deterioration to the
floors of the Premises arising from the use of forklifts in, on or about the
Premises (including, without limitation, any marks or stains of any portion of
the floors), and any damage or deterioration that would have
11
been prevented by proper maintenance by Tenant or Tenant otherwise performing
all of its obligations under this Lease. Upon such termination of this Lease,
`tenant shall remove all tenant signage, trade fixtures, furniture, furnishings,
personal property, additions, and other improvements unless Landlord requests,
in writing, that Tenant not remove some or all of such fixtures (other than
trade fixtures itemized or similar to those itemized in Exhibit I), additions or
improvements installed by, or on behalf of Tenant or situated in or about the
Premises. By the date which is twenty (20) days prior to such termination of
this Lease, Landlord shall notify Tenant in writing of those fixtures (other
than trade futures), alterations, additions and other improvements which
Landlord shall require Tenant not to remove from the Premises. Tenant shall
repair any damage caused by the installation or removal of such signs, trade
fixtures, furniture, furnishings, fixtures, additions and improvements which are
to be removed from the Premises by Tenant hereunder. If Landlord fails to so
notify Tenant at least twenty (20) days prior to such termination of this Lease,
then Tenant shall remove al) tenant signage, alterations, furniture,
furnishings, trade fixtures, additions and other improvements installed in or
about the Premises by, or on behalf of Tenant. Tenant shall ensure that the
removal of such items and the repair of tine Premises will be completed prior to
such termination of this Lease.
11. REPAIRS AND MAINTENANCE
11.1 TENANT'S REPAIRS AND MAINTENANCE OBLIGATIONS: Except for those
portions of the Building to be maintained by Landlord, as provided in Sections
11.2, and 11.3 below, Tenant shall, at Tenant's sole cost and expense, keep and
maintain the Premises and the adjacent dock and staging areas in good, clean and
safe condition and repair to the reasonable satisfaction of Landlord including,
but not limited to, repairing any damage caused by Tenant or Tenant's
Representatives and replacing any property so damaged by Tenant or Tenant's
Representatives. Without limiting the generality of the foregoing, Tenant shall
be solely responsible for maintaining, repairing and replacing (a) all
mechanical systems, heating, ventilation and air conditioning systems
exclusively serving the Premises, (b) all plumbing, electrical wiring and
equipment serving the Premises, (c) all interior lighting (including, without
limitation, light bulbs and/or ballasts) and exterior lighting serving the
Premises or adjacent to the Premises, (d) all glass, windows, window frames,
window casements, skylights, interior and exterior doors, door frames and door
closers, (e) all roll-up doors, ramps and dock equipment, including without
limitation, dock bumpers, dock plates, dock seals, dock levelers and dock
lights, (f) all tenant signage, (g) lifts for disabled persons serving the
Premises, (h) sprinkler systems, fire protection systems and security systems,
(i) all partitions, fixtures, equipment, interior painting, and interior walls
and floors of the Premises and every part thereof (including, without
limitation, any demising walls contiguous to any portion of the Premises).
11.2 REIMBURSABLE REPAIRS AND MAINTENANCE OBLIGATIONS: Subject to the
provisions of Sections 6 and 9 of this Lease and except for (i) the obligations
of Tenant set forth in Section 11.1 above, (ii) the obligations of Landlord set
forth in Section 11.3 below, and (iii) the repairs rendered necessary by the
intentional or negligent acts or omissions of Tenant or any of Tenant's
Representatives, Landlord agrees, at Landlord's expense, subject to
reimbursement pursuant to Section 6 above, to keep in good repair the plumbing
and mechanical systems exterior to the Premises, any rail spur and rail
crossing, the roof, roof membranes, exterior walls of the Building, signage
(exclusive of tenant signage), and exterior electrical wiring and equipment,
exterior lighting, exterior glass, exterior doors/entrances and door closers,
exterior window casements, exterior painting of the Building (exclusive of the
premises),and underground utility and sewer pipes outside
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the exterior walls of the Building. For purposes of this Section 11.2, the term
"exterior" shall mean outside of and not exclusively serving the Premises.
Unless otherwise notifiedby Landlord, in writing, that Landlord has elected to
procure and maintain the following described contract(s), Tenant shall procure
and maintain (a) the heating, ventilation and air conditioning systems
preventative maintenance and repair contract(s); such contract(s) to be on a
bi-monthly or quarterly basis, as reasonably determined by Landlord, and (b) the
fire and sprinkler protection services and preventative maintenance and repair
contracts) (including, without limitation, monitoring services); such
contract(s) to be on a bi-monthly or quarterly basis, as reasonably determined
by Landlord. Landlord reserves the right, but without the obligation to do so,
to procure and maintain (i) the heating, ventilation and air conditioning
systems preventative maintenance and repair contract(s), and/or (ii) the fire
and sprinkler protection services and preventative maintenance and repair
contract(s) (including, without limitation, monitoring services). If Landlord so
elects to procure and maintain any such contract(s), Tenant will reimburse
Landlord for the cost thereof in accordance with the provisions of Section 6
above. If Tenant procures and maintains any of such contract(s), Tenant will
promptly deliver to Landlord a true and complete copy of each such contract and
any and all renewals or extensions thereof, and each service report or other
summary received by Tenant pursuant to or in connection with such contract(s).
11.3 LANDLORD'S REPAIRS AND MAINTENANCE OBLIGATIONS: Except for repairs
rendered necessary by the intentional or negligent acts or omissions of Tenant
or any of Tenant's Representatives, Landlord agrees, at Landlord's sole cost and
expense, to (a) keep in good repair the structural portions of the floors,
foundations and exterior perimeter walls of the Building (exclusive of glass and
exterior doors), and (b) replace the structural portions of the roof of the
Building (excluding the roof membrane) as, and when, Landlord determines such
replacement to be necessary in Landlord's sole discretion.
11.4 TENANT'S FAILURE TO PERFORM REPAIRS AND MAINTENANCE OBLIGATIONS:
Except for normal maintenance and repair of the items described above, Tenant
shall have no right of access to or right to install any device on the roof of
the Building nor make any penetrations of the roof of the Building without the
express prior written consent of Landlord. If Tenant refuses or neglects to
repair and maintain the Premises and the adjacent areas properly as required
herein and to the reasonable satisfaction of Landlord, Landlord may, but without
obligation to do so, at any time make such repairs and/or maintenance without
Landlord having any liability to Tenant for any loss or damage that may accrue
to Tenant's merchandise, fixtures or other property, or to Tenant's business by
reason thereof, except to the extent any damage is caused by the willful
misconduct or gross negligence of Landlord or its authorized agents and
representatives. In the event Landlord makes such repairs and/or maintenance,
upon completion thereof Tenant shall pay to Landlord, as additional rent, the
Landlord's costs for making such repairs and/or maintenance, plus twenty percent
(20%) for overhead, upon presentation of a bill therefor, plus any Enforcement
Expenses. The obligations of Tenant hereunder shall survive the expiration of
the Term of this Lease or the earlier termination thereof. Tenant hereby waives
any right to repair at the expense of Landlord under any applicable Laws now or
hereafter in effect respecting the Premises.
12. INSURANCE
12.1 TYPES OF INSURANCE: Tenant shall maintain in full force and effect at
all times during the Term of this Lease, at Tenant's sole cost and expense, for
the protection of Tenant and Landlord, as their interests may appear, policies
of insurance issued by a carrier or carriers
13
reasonably acceptable to Landlord and its lenders) which afford the following
coverages: (i) worker's compensation: statutory limits; (ii) employer's
liability, as required by law, with a minimum limit of $100,000 per employee and
$500,000 per occurrence; (iii) commercial general liability insurance
(occurrence form) providing coverage against any and all claims for bodily
injury and property damage occurring in, on or about the Premises arising out of
Tenant's and Tenant's Representatives' use and/or occupancy of the Premises.
Such insurance shall include coverage for blanket contractual liability, fire
damage, premises, personal injury, completed operations, products liability,
personal and advertising, and a plate-glass rider to provide coverage for all
glass in, on or about the Premises including, without limitation, skylights.
Such insurance shall have a combined single limit of not less than One Million
Dollars ($1,000,000) per occurrence with a Two Million Dollar ($2,000,000)
aggregate limit and excess/umbrella insurance in the amount of Two Million
Dollars ($2,000,000). If Tenant has other locations which it owns or leases, the
policy shall include an aggregate limit per location endorsement. If necessary,
as reasonably determined by Landlord, Tenant shall provide for restoration of
the aggregate limit; (iv) comprehensive automobile liability insurance: a
combined single limit of not less than $2,000,000 per occurrence and insuring
Tenant against liability for claims arising out of the ownership, maintenance,
or use of any owned, hired or non-owned automobiles; (v) "all risk" or "special
purpose" property insurance, including without limitation, sprinkler leakage,
boiler and machinery comprehensive form, if applicable, covering damage to or
loss of any personal property, trade fixtures, inventory, fixtures and equipment
located in, on or about the Premises, and in addition, coverage for flood,
earthquake, and business interruption of Tenant, together with, if the property
of Tenant's invitees is to be kept in the Premises, warehouser's legal liability
or bailee customers insurance for the full replacement cost of the property
belonging to invitees and located in the Premises. Such insurance shall be
written on a replacement cost basis (without deduction for depreciation) in an
amount equal to one hundred percent (100%) of the full replacement value of the
aggregate of the items referred to in this subparagraph (v); and (vi) such other
insurance as Landlord deems necessary and prudent or as may otherwise be
required by any of Landlord's lenders or joint venture partners.
12.2 INSURANCE POLICIES: Insurance required to be maintained by Tenant
shall be written by companies (i) licensed to do business in the State of
California, (ii) domiciled in the United States of America, and (iii) having a
"General Policyholders Rating" of at least A:X (or such higher rating as may be
required by a lender having a lien on the Premises) as set forth in the most
current issue of "A.M. Best's Rating Guides." Any deductible amounts under any
of the insurance policies required hereunder shall not exceed One Thousand
Dollars ($1,000). Tenant shall deliver to Landlord certificates of insurance and
true and complete copies of any and all endorsements required herein for all
insurance required to be maintained by Tenant hereunder at the time of execution
of this Lease by Tenant. Tenant shall, at least thirty (30) days prior to
expiration of each policy, furnish Landlord with certificates of renewal or
"binders" thereof. Each certificate shall expressly provide that such policies
shall not be cancelable or otherwise subject to modification except after thirty
(30) days prior written notice to the parties named as additional insureds as
required in this Lease (except for cancellation for nonpayment of premium, in
which event cancellation shall not take effect until at least ten (10) days'
notice has been given to Landlord), Tenant shall have the right to provide
insurance coverage which it is obligated to carry pursuant to the terms of this
Lease under a blanket insurance policy, provided such blanket policy expressly
affords coverage for the Premises and for Landlord as required by this Lease.
12.3 ADDITIONAL INSUREDS AND COVERAGE: Landlord, any property management
ompany and/or agent of Landlord for the Premises, the Building, the Lot or the
Park, and any
14
lenders) of Landlord having a lien against the Premises, the Building, the Lot
or the Park shall be named as additional insureds under all of the policies
required in Section 12.1(iii) above. Additionally, such policies shall provide
for severability of interest. All insurance to be maintained by Tenant shall,
except for workers' compensation and employer's liability insurance, be primary,
without right of contribution from insurance maintained by Landlord. Any
umbrella/excess liability policy (which shall be in "following form") shall
provide that if the underlying aggregate is exhausted, the excess coverage will
drop down as primary insurance. The limits of insurance maintained by Tenant
shall not limit Tenant's liability under this Lease. It is the parties'
intention that the insurance to be procured and maintained by Tenant as required
herein shall provide coverage for any and all damage or injury arising from or
related to Tenant's operations of its business and/or Tenant's or Tenant's
Representatives' use of the Premises and/or any of the areas within the Park,
whether such events occur within the Premises (as described in Exhibit A hereto)
or in any other areas of the Park. It is not contemplated or anticipated by the
parties that the aforementioned risks of loss be borne by Landlord's insurance
carriers, rather it is contemplated and anticipated by Landlord and Tenant that
such risks of loss be borne by Tenant's insurance carriers pursuant to the
insurance policies procured and maintained by Tenant as required herein.
12.4 FAILURE OF TENANT TO PURCHASE AND MAINTAIN INSURANCE: In the event
Tenant does not purchase the insurance required in this Lease or keep the same
in full force and effect throughout the Term of this Lease (including any
renewals or extensions), Landlord may, but without obligation to do so, purchase
the necessary insurance and pay the premiums therefor. If Landlord so elects to
purchase such insurance, Tenant shall promptly pay to Landlord as Additional R4
the amount so paid by Landlord, upon Landlord's demand therefor. In addition,
Landlord may recover from Tenant and Tenant agrees to pay, as Additional Rent,
any and all Enforcement Expenses and damages which Landlord may sustain by
reason of Tenant's failure to obtain and maintain such insurance. If Tenant
fails to maintain any insurance required in this Lease, Tenant shall be liable
for all losses, damages and costs resulting from such failure.
13. WAIVER OF SUBROGATION
Landlord and Tenant hereby mutually waive their respective rights of
recovery against each other for any loss of, or damage to, either parties'
property to the extent that such loss or damage is insured by an insurance
policy required to be in effect at the time of such loss or damage. Each party
shall obtain any special endorsements, if required by its insurer whereby the
insurer waives its rights of subrogation against the other party. This provision
is intended to waive fully, and for the benefit of the parties hereto, any
rights and/or claims which might give rise to a right of subrogation in favor of
any insurance carrier. The coverage obtained by Tenant pursuant to Section 12 of
this Lease shall include, without limitation, a waiver of subrogation
endorsement attached to the certificate of insurance. The provisions of this
Section 13 shall not apply in those instances in which such waiver of
subrogation would invalidate such insurance coverage or would cause either
party's insurance coverage to be voided or otherwise uncollectible.
14. LIMITATION OF LIABILITY AND INDEMNITY
Except to the extent of damage resulting from the sole active negligence or
willful misconduct of Landlord or its authorized representatives, Tenant agrees
to protect, defend (with counsel acceptable to Landlord) and hold Landlord and
Landlord's lenders, partners, members, property management company (if other
than Landlords agents, directors, officers, employees,
representatives, contractors, shareholders, successors and assigns and each of
their respective partners, members, directors, employees, representatives,
agents, contractors, shareholders, successors and assigns (collectively, the
"Indemnitees") harmless and indemnify the Indemnitees from and against all
liabilities, damages, claims, losses, judgments, charges and expenses (including
reasonable attorneys' fees, costs of court and expenses necessary in the
prosecution or defense of any litigation including the enforcement of this
provision) arising from or in any way related to, directly or indirectly, (i)
Tenant's or Tenant's Representatives' use of the Premises, Building and/or the
Park, (ii) the conduct of Tenant's business, (iii) from any activity, work or
thing done, permitted or suffered by Tenant in or about the Premises, (iv) in
any way connected with the Premises or with the improvements or personal
property therein, including, but not limited to, any liability for injury to
person or property of Tenant, Tenant's Representatives, or third party persons,
and/or (v) Tenants failure to perform any covenant or obligation of Tenant under
this Lease. Tenant agrees that the obligations of Tenant herein shall survive
the expiration or earlier termination of this Lease.
Except to the extant of damage resulting from the sole active negligence or
willful misconduct of Landlord or its authorized representatives, to the fullest
extent permitted by law, Tenant agrees that neither Landlord nor any of
Landlord's lender(s), partners, members, employees, representatives, legal
representatives, successors or assigns shall at any time or to any extent
whatsoever be liable, responsible or in any way accountable for any loss,
liability, injury, death or damage to persons or properly which at anytime may
be suffered or sustained by Tenant or by any persons) whomsoever who may at any
time be using, occupying or visiting the Premises, the Building or the Park,
including, but not limited to, any acts, errors or omissions by or on behalf of
any other tenants or occupants of the Building and/or the Park. Tenant shall
not, in any event or circumstance, be permitted to offset or otherwise credit
against any payments of Rent required herein for matters for which Landlord may
be liable hereunder. Landlord and its authorized representatives shall not be
liable for any interference with light or air, or for any latent defect in the
Premises or the Building.
15. ASSIGNMENT AND SUBLEASING
15.1 PROHIBITION: Tenant shall not assign, mortgage, hypothecate, encumber,
grant any license or concession, pledge or otherwise transfer this Lease
(collectively, "assignment"), in whole or in part, whether voluntarily or
involuntarily or by operation of law, nor sublet or permit occupancy by any
person other than Tenant of all or any portion of the Premises without first
obtaining the prior written consent of Landlord, which consent shall not be
unreasonably withheld. Tenant hereby agrees that Landlord may withhold its
consent to any proposed sublease or assignment if the proposed sublessee or
assignee or its business is subject to compliance with additional requirements
of the ADA (defined below) and/or Environmental Laws (defined below) beyond
those requirements which are applicable to Tenant, unless the proposed sublessee
or assignee shall (a) first deliver plans and specifications for complying with
such additional requirements and obtain Landlord's written consent thereto, and
(b) comply with all Landlord's conditions for or contained in such consent,
including without limitation, requirements for security to assure the lien-free
completion of such improvements. If Tenant seeks to sublet or assign all or any
portion of the Premises, Tenant shall deliver to Landlord at least thirty (30)
days prior to the proposed commencement of the sublease or assignment (the
"Proposed Effective Date") the following: (i) the name of the proposed assignee
or sublessee; (ii) such information as to such assignee's or sublessee's
financial responsibility and standing as Landlord may reasonably require; and
(iii) the aforementioned plans and specifications, if any. Within ten (10) days
after Landlord's
16
receipt of a written request from Tenant that Tenant seeks to sublet or assign
all or any portion of the Premises, Landlord shall deliver to Tenant a copy of
Landlord's standard form of sublease or assignment agreement (as applicable),
which instrument shall be utilized for each proposed sublease or assignment (as
applicable), and such instrument shall include a provision whereby the assignee
or sublessee assumes all of Tenant's obligations hereunder and agrees to be
bound by the terms hereof. As Additional Rent hereunder, Tenant shall pay to
Landlord a fee in the amount of five hundred dollars ($500) plus Tenant shall
reimburse Landlord for actual legal and other expenses incurred by Landlord in
connection with any actual or proposed assignment or subletting. In the event
the sublease or assignment (1) by itself or taken together with prior subleases)
or partial assignments) covers or totals, as the case may be, more than
twenty-five percent (25%) of the rentable square feet of the Premises or (2) is
for a term which by itself or taken together with prior or other subleases or
partial assignments is greater than fifty percent (50%)of the period remaining
in the Term of this Lease as of the time of the Proposed Effective Date, then
Landlord shall have the right, to be exercised by giving written notice to
Tenant, to recapture the space described in the sublease or assignment. If such
recapture notice is given, it shall serve to terminate this Lease with respect
to the proposed sublease or assignment space, or, if the proposed sublease or
assignment space covers all the Premises, it shall serve to terminate the entire
term of this Lease in either case, as of the Proposed Effective Date. However,
no termination of this Lease with respect to part or all of the Premises shall
become effective without the prior written consent, where necessary, of the
holder of each deed of trust encumbering the Premises or any part thereof. If
this Lease is terminated pursuant to the foregoing with respect to less than the
entire Premises, the Rent shall be adjusted on the basis of the proportion of
square feet retained by Tenant to the square feet originally demised and this
Lease as so amended shall continue thereafter in full force and effect. Each
permitted assignee or sublessee shall assume and be deemed to assume this Lease
and shall be and remain liable jointly and severally with Tenant for payment of
Rent and for the due performance of, and compliance with all the terms,
covenants, conditions and agreements herein contained on Tenant's part to be
performed or complied with, for the term of this Lease. No assignment or
subletting shall affect the continuing primary liability of Tenant (which,
following assignment, shall be joint and several with the assignees and Tenant
shall not be released from performing any of the terms, covenants and conditions
of this Lease. Tenant hereby acknowledges and agrees that it understands that
Landlord's accounting department may process and accept Rent payments without
verifying that such payments are being made by Tenant, a permitted sublessee or
a permitted assignee in accordance with the provisions of this Lease. Although
such payments may be processed and accepted by such accounting department
personnel, any and all actions or omissions by the personnel of Landlord's
accounting department shall not be considered as acceptance by Landlord of any
proposed assignee or sublessee nor shall such actions or omissions be deemed to
be a substitute for the requirement that Tenant obtain Landlord's prior written
consent to any such subletting or assignment, and any such actions or omissions
by the personnel of Landlord's accounting department shall not be considered as
a voluntary relinquishment by Landlord of any of its rights hereunder nor shall
any voluntary relinquishment of such rights be inferred therefrom. For purposes
hereof, in the event Tenant is a corporation, partnership, joint venture, trust
or other entity other than a natural person, any change in the direct or
indirect ownership of Tenant (whether pursuant to one or more transfers) which
results in a change of more than fifty percent (50%) in the direct or indirect
ownership of Tenant shall be deemed to be an assignment within the meaning of
this Section 15 and shall be subject to all the provisions hereof. Any and all
options, first rights of refusal, tenant improvement allowances and other
similar rights granted to Tenant in this Lease, if any, shall not be assignable
by Tenant unless expressly authorized in writing by Landlord.
17
15.2 EXCESS SUBLEASE RENTAL OR ASSIGNMENT CONSIDERATION: In the event of
any sublease or assignment of all or any portion of the Premises where the rent
or other consideration provided for in the sublease or assignment either
initially or over the term of the sublease or assignment exceeds the Rent or pro
rata portion of the Rent, as the case may be, for such space reserved in the
Lease, Tenant shall pay the Landlord monthly, as Additional Rent, at the same
time as the monthly installments of Rent are payable hereunder, seventy-five
percent (75%) of the excess of each such payment of rent or other consideration
in excess of the Rent called for hereunder, less Tenant's cost to effect such
sublease.
15.3 WAIVER: Notwithstanding any assignment or sublease, or any
indulgences, waivers or extensions of time granted by Landlord to any assignee
or sublessee, or failure by Landlord to take action against any assignee or
sublessee, Tenant waives notice of any default of any assignee or sublessee and
agrees that Landlord may, at its option, proceed against Tenant without having
taken action against or joined such assignee or sublessee, except that Tenant
shall have the benefit of any indulgences, waivers and extensions of time
granted to any such assignee or sublessee.
16. AD VALOREM TAXES
Prior to delinquency, Tenant shall pay all taxes and assessments levied
upon trade fixtures, alterations, additions, improvements, inventories and
personal property located and/or installed on or in the Premises by, or on
behalf of, Tenant; and if requested by Landlord, Tenant shall promptly deliver
to Landlord copies of receipts for payment of all such taxes and assessments. To
the extent any such taxes are not separately assessed or billed to Tenant,
Tenant shall pay the amount thereof as invoiced by Landlord.
17. SUBORDINATION
Without the necessity of any additional document being executed by Tenant
for the purpose of effecting a subordination, and at the election of Landlord or
any bona fide mortgagee or deed of trust beneficiary with a lien on all or any
portion of the Premises or any ground lessor with respect to the land of which
the Premises are a part, the rights of Tenant under this Lease and this Lease
shall be subject and subordinate at all times to: (i) all ground leases or
underlying leases which may now exist or hereafter be executed affecting the
Building or the land upon which the Building is situated or both, and (ii) the
lien of any mortgage or deed of trust which may now exist or hereafter be
executed in any amount for which the Building, the Lot, ground leases or
underlying leases, or Landlord's interest or estate in any of said items is
specified as security. Notwithstanding the foregoing, Landlord or any such
ground lessor, mortgagee, or any beneficiary shall have the right to subordinate
or cause to be subordinated any such ground leases or underlying leases or any
such liens to this Lease. If any ground lease or underlying lease terminates for
any reason or any mortgage or deed of trust is foreclosed or a conveyance in
lieu of foreclosure is made for any reason, Tenant shall, notwithstanding any
subordination and upon the request of such successor to Landlord, attorn to and
become the Tenant of the successor in interest to Landlord, provided such
successor in interest will not disturb Tenant's use, occupancy or quiet
enjoyment of the Premises so long as Tenant is not in default of the terms and
provisions of this Lease. The successor in interest to Landlord following
foreclosure, sale or deed in lieu thereof shall not be (a) liable for any act or
omission of any prior lessor or with respect to events occurring prior to
acquisition of ownership; (b) subject to any offsets or defenses which Tenant
might have against any prior lessor; (c) bound by prepayment of more than one
(1) month's Rent, except in those instances when Tenant pays Rent
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quarterly in advance pursuant to Section 8 hereof, then not more than three
months' Rent; or (d) liable to Tenant for any Security Deposit not actually
received by such successor in interest to the extent any portion or all of such
Security Deposit has not already been forfeited by, or refunded to, Tenant.
Landlord shall be liable to Tenant for all or any portion of the Security
Deposit not forfeited by, or refunded to Tenant, until and unless Landlord
transfers such Security Deposit to the successor in interest. Tenant covenants
and agrees to execute (and acknowledge if required by Landlord, any lender or
ground lessor) and deliver, within five (5) business days of a demand or request
by Landlord and in the form requested by Landlord, ground lessor, mortgagee or
beneficiary, any additional documents evidencing the priority or subordination
of this Lease with respect to any such ground leases or underlying leases or the
lien of any such mortgage or deed of trust. Tenant's failure to timely execute
and deliver such additional documents shall, at Landlord's option, constitute a
material default hereunder. It is further agreed that Tenant shall be liable to
Landlord, and shall indemnify Landlord from and against any loss, cost, damage
or expense, incidental, consequential, or otherwise, arising or accruing
directly or indirectly, from any failure of Tenant to execute or deliver to
Landlord any such additional documents, together with any and all Enforcement
Expenses. Notwithstanding anything to the contrary contained in this Lease, (a)
promptly following the execution of this Lease, Landlord shall use reasonable
efforts to obtain from the beneficiary under the existing deed of trust
encumbering the Premises, a subordination, non-disturbance and attornment
agreement for the benefit of Tenant in commercially reasonable form; and (b)
until Landlord has obtained such non-disturbance agreement, the amount of the
Letter of Credit to be obtained by Tenant pursuant to Section 4 above shall be
One Hundred Fifty Thousand Dollars (($150,000.00), rather than Three Hundred
Thousand Dollars ($300,00.00).
18. RIGHT OF ENTRY
Tenant grants Landlord or its agents the right to enter the Premises at all
reasonable times for purposes of inspection, exhibition, posting of notices,
repair or alteration. At Landlord's option, Landlord shall at all times have and
retain a key with which to unlock all the doors in, upon and about the Premises,
excluding Tenant's vaults and safes. It is further agreed that Landlord shall
have the right to use any and all means Landlord deems necessary to enter the
Premises in an emergency. Landlord shall have the right to place "for rent" or
"for lease" signs on the outside of the Premises, the Building and in the Common
Areas. Landlord shall also have the right to place "for sale" signs on the
outside of the Building and in the Common Areas. Tenant hereby waives any claim
from damages or for any injury or inconvenience to or interference with Tenant's
business, or any other loss occasioned thereby except for any claim for any of
the foregoing arising out of the sole active negligence or willful misconduct of
Landlord or its authorized representatives.
19. ESTOPPEL CERTIFICATE
Tenant shall execute (and acknowledge if required by any lender or ground
lessor) and deliver to Landlord, within five (5) business days after Landlord
provides such to Tenant, a statement in writing certifying that this Lease is
unmodified and in full force and effect (or, if modified, stating the nature of
such modification), the date to which the Rent and other charges are paid in
advance, if any, acknowledging that there are not, to Tenant's knowledge, any
uncured defaults on the part of Landlord hereunder or specifying such defaults
as are claimed and such other matters as Landlord may reasonably require. Any
such statement may be conclusively relied upon by Landlord and any prospective
purchaser or encumbrancer of the Premises. Tenant's failure to deliver such
statement within such time shall be conclusive upon the Tenant that (a) this
Lease is in
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full force and effect, without modification except as may be represented by
Landlord; (b) there are no uncured defaults in Landlord's performance; and (c)
not more than one month's Rent has been paid in advance, except in those
instances when Tenant pays Rent quarterly in advance pursuant to Section 8
hereof, then not more than three month's Rent has been paid in advance. Failure
by Tenant to so deliver such certified estoppel certificate shall be a material
default of the provisions of this Lease. Tenant shall be liable to Landlord, and
shall indemnify Landlord from and against any loss, cost, damage or expense,
incidental, consequential, or otherwise, arising or accruing directly or
indirectly, from any failure of Tenant to execute or deliver to Landlord any
such certified estoppel certificate, together with any and all Enforcement
Expenses.
20. TENANT'S DEFAULT
The occurrence of any one or more of the following events shall, at
Landlord's option, constitute a material default by Tenant of the provisions of
this Lease:
20.1 The abandonment of the Premises by Tenant or the vacation of the
Premises by Tenant which would cause any insurance policy to be invalidated or
otherwise lapse. Tenant agrees to notice and service of notice as provided for
in this Lease and waives any right to any other or further notice or service of
notice which Tenant may have under any statute or law now or hereafter in
effect;
20.2 The failure by Tenant to make any payment of Rent, Additional Rent or
any other payment required hereunder on the date said payment is due. Tenant
agrees to notice and service of notice as provided for in this Lease and waives
any right to any other or further notice or service of notice which Tenant may
have under any statute or law now or hereafter in effect;
20.3 The failure by Tenant to observe, perform or comply with any of the
conditions, covenants or provisions of this Lease (except failure to make any
payment of Rent and/or Additional Rent) and such failure is not cured within the
time period required under the provisions of this Lease. If such failure is
susceptible of cure but cannot reasonably be cured within the aforementioned
time period (if any), as determined solely by Landlord, Tenant shall promptly
commence the cure of such failure and thereafter diligently prosecute such cure
to completion within the time period specified by Landlord in any written notice
regarding such failure as may be delivered to Tenant by Landlord. In no event or
circumstance shall Tenant have more than fifteen (15) days to complete any such
cure, unless otherwise expressly agreed to in writing by Landlord (in Landlord's
sole discretion);
20.4 The making of a general assignment by Tenant for the benefit of
creditors, the filing of a voluntary petition by Tenant or the filing of an
involuntary petition by any of Tenant's creditors seeking the rehabilitation,
liquidation, or reorganization of Tenant under any law relating to bankruptcy,
insolvency or other relief of debtors and, in the case of an involuntary action,
the failure to remove or discharge the same within sixty (f0) days of such
filing, the appointment of a receiver or other custodian to take possession of
substantially all of Tenant's assets or this leasehold, Tenant's insolvency or
inability to pay Tenant's debts or failure generally to pay Tenant's debts when
due, any court entering a decree or order directing the winding up or
liquidation of Tenant or of substantially all of Tenant's assets, Tenant taking
any action toward the dissolution or winding up of Tenant's affairs, the
cessation or suspension of Tenant's use of the Premises, or the attachment,
execution or other judicial seizure of substantially all of Tenant's assets or
this leasehold;
20
20.5 Tenant's use or storage of Hazardous Materials in, on or about the
Premises, the Building, the Lot and/or the Park other than as expressly
permitted by the provisions of Section 29 below; or
20.6 The making of any material misrepresentation or omission by Tenant in
any materials delivered by or on behalf of Tenant to Landlord pursuant to this
Lease.
21. REMEDIES FOR TENANT'S DEFAULT
21.1 LANDLORD'S RIGHTS: In the event of Tenant's material default under
this Lease, Landlord may terminate Tenant's right to possession of the Premises
by any lawful means in which ease upon delivery of written notice by Landlord
this Lease shall terminate on the date specified by Landlord in such notice and
Tenant shall immediately surrender possession of the Premises to Landlord. In
addition, the Landlord shall have the immediate right of re-entry whether or not
this Lease is terminated, and if this t right of re-entry is exercised following
abandonment of the Premises by Tenant, Landlord may consider any personal
property belonging to Tenant and left on the Premises to also have been
abandoned. No re-entry or taking possession of the Premises by Landlord pursuant
to this Section 21 shall be construed as an election to terminate this Lease
unless a written notice of such intention is given to Tenant. If Landlord relets
the Premises or any portion thereof, (i) Tenant shall be liable immediately to
Landlord for all costs Landlord incurs in reletting the Premises or any part
thereof, including, without limitation, broker's commissions, expenses of
cleaning, redecorating, and further improving the Premises and other similar
costs (collectively, the "Reletting Costs"), and (ii) the rent received by
Landlord from such reletting shall be applied to the payment of, first, any
indebtedness from Tenant to Landlord other than Base Rent, Operating Expenses,
Tax Expenses, Common Area Utility Costs, and Utility Expenses; second, all costs
including maintenance, incurred by Landlord in reletting; and, third, Base Rent,
Operating Expenses, Tax Expenses, Common Area Utility Costs, Utility Expenses,
and all other sums due under this Lease. Any and all of the Reletting Costs
shall be fully chargeable to Tenant and shall not be prorated or otherwise
amortized in relation to any new lease for the Premises or any portion thereof.
After deducting the payments referred to above, any sum remaining from the
rental Landlord receives from reletting shall be held by Landlord and applied in
payment of future Rent as Rent becomes due under this Lease. In no event shall
Tenant be entitled to any excess rent received by Landlord. Reletting may be for
a period shorter or longer than the remaining term of this Lease. No act by
Landlord other than giving written notice to Tenant shall terminate this Lease.
Acts of maintenance, efforts to relet the Premises or the appointment of a
receiver on Landlord's initiative to protect Landlord's interest under this
Lease shall not constitute a termination of Tenant's right to possession. So
long as this Lease is not terminated, Landlord shall have the right to remedy
any default of Tenant, to maintain or improve the Premises, to cause a receiver
to be appointed to administer the Premises and new or existing subleases and to
add to the Rent payable hereunder all of Landlord's reasonable costs in so
doing, with interest at the maximum rate permitted by law from the date of such
expenditure.
21.2 DAMAGES RECOVERABLE: If Tenant breaches this Lease and abandons the
Premises before the end of the Term, or if Tenant's right to possession is
terminated by Landlord because of a breach or default under this Lease, then in
either such case, Landlord may recover from Tenant all damages suffered by
Landlord as a result of Tenant's failure to perform its obligations hereunder,
including, but not limited to, the portion of any broker's or leasing agent's
commission incurred with respect to the leasing of the Premises to Tenant for
the balance of the Term of the Lease remaining
21
after the date on which Tenant is in default of its obligations hereunder, and
all Reletting Costs, and the worth at the time of the award (computed in
accordance with paragraph (3) of Subdivision (a) of Section 1951.2 of the
California Civil Code) of the amount by which the Rent then unpaid hereunder for
the balance of the Lease Term exceeds the amount of such loss of Rent for the
same period which Tenant proves could be reasonably avoided by Landlord and in
such case, Landlord prior to the award, may relet the Premises for the purpose
of mitigating damages suffered by Landlord because of Tenant's failure to
perform its obligations hereunder; provided, however, that even though Tenant
has abandoned the Premises following such breach, this Lease shall nevertheless
continue in full force and effect for as long as Landlord does not terminate
Tenant's right of possession, and until such termination, Landlord shall have
the remedy described in Section 1951.4 of the California Gail Code (Landlord may
continue this Lease in effect after Tenant's breach and abandonment and recover
Rent as it becomes due, if Tenant has the right to sublet or assign, subject
only to reasonable limitations) and may enforce all its rights and remedies
under its Lease, including the right to recover the Rent from Tenant as it
becomes due hereunder. The "worth at the time of the award" within the meaning
of Subparagraphs (a)(1) and (a)(2) of Section 1951.2 of the California Civil
Code shall be computed by allowing interest at the rate of ten percent (10%) per
annum. Tenant waives redemption or relief from forfeiture under California Code
of Civil Procedure Sections 1174 and 1179, or under any other present or future
law, in the event Tenant is evicted or Landlord takes possession of the Premises
by reason of any default of Tenant hereunder.
21.3 RIGHTS AND REMEDIES CUMULATIVE: The foregoing rights and remedies of
Landlord are not exclusive; they are cumulative in addition to any rights and
remedies now or hereafter existing at law, in equity by statute or otherwise, or
to any equitable remedies Landlord may have, and to any remedies Landlord may
have under bankruptcy laws or laws affecting creditors rights generally. In
addition to all remedies set forth above, if Tenant materially defaults under
this Lease, any and all Base Rent waived by Landlord under Section 3 above shall
be immediately due and payable to Landlord and all options granted to Tenant
hereunder shall automatically terminate, unless otherwise expressly agreed to in
writing by Landlord.
21.4 WAIVER OF A DEFAULT: The waiver by Landlord of any default of any
provision of this Lease shall not be deemed or construed a waiver of any other
default by Tenant hereunder or of any subsequent default of this Lease, except
for the default specified in the waiver.
22. HOLDING OVER
If Tenant holds possession of the Premises after the expiration of the Term
of this Lease with Landlord's consent, Tenant shall become a tenant from
month-to-month upon the terms and provisions of this Lease, provided the monthly
Base Rent during such hold over period shall be 150% of the Base Rent due on the
last month of the Lease Term, payable in advance on or before the first day of
each month. Acceptance by Landlord of the monthly Base Rent without the
additional fifty percent (50%) increase of Base Rent shall not be deemed or
construed as a waiver by Landlord of any of its rights to collect the increased
amount of the Base Rent as provided herein at any time. Such month-to-month
tenancy shall not constitute a renewal or extension for any further term. All
options, if any, granted under the terms of this Lease shall be deemed
automatically terminated and be of no force or effect during said month-to-month
tenancy. Tenant shall continue in possession until such tenancy shall be
terminated by either Landlord or Tenant giving written notice of termination to
the other party at least thirty (30) days prior to the effective date of
termination. This paragraph shall not be construed as Landlord's permission for
Tenant to hold
22
over. Acceptance of Base Rent by Landlord following expiration or termination of
this Lease shall not constitute a renewal of this Lease.
23. LANDLORD'S DEFAULT
Landlord shall not be deemed in breach or default of this Lease unless
Landlord fails within a reasonable time to perform an obligation required to be
performed by Landlord hereunder. For purposes of this provision, a reasonable
time shall not be less than thirty (30) days after receipt by Landlord of
written notice specifying the nature of the obligation Landlord has not
performed; provided, however, that if the nature of Landlord's obligation is
such that move than thirty (30) days, after receipt of written notice, is
reasonably necessary for its performance, then Landlord shall not be in breach
or default of this Lease if performance of such obligation is commenced within
such thirty (30) day period and thereafter diligently pursued to completion.
24. PARKING
Tenant shall have a license to use the number of non-designated and
non-exclusive parking spaces specified in the Basic Lease Information. Landlord
shall exercise reasonable efforts to insure that such spaces are available to
Tenant for its use, but Landlord shall not be required to enforce Tenant's right
to use the same.
25. SALE OF PREMISES
In the event of any sale of the Premises by Landlord or the cessation
otherwise of Landlord's interest therein, Landlord shall be and is hereby
entirely released from any and all of its obligations to perform or further
perform under this Lease and from all liability hereunder accruing from or after
the date of such sale; and the purchaser, at such sale or any subsequent sale of
the Premises shall be deemed, without any further agreement between the parties
or their successors in interest or between the parties and any such purchaser,
to have assumed and agreed to carry out any and all of the covenants and
obligations of the Landlord under this Lease. For purposes of this Section 25,
the term "Landlord" means only the owner and/or agent of the owner as such
parties exist as of the date on which Tenant executes this Lease. A ground lease
or similar long term lease by Landlord of the entire Building, of which the
Premises are a part, shall be deemed a sale within the meaning of this Section
25. Tenant agrees to attorn to such new owner provided such new owner does not
disturb Tenant's use, occupancy or quiet enjoyment of the Premises so long as
Tenant is not in default of any of the provisions of this Lease.
26. WAIVER
No delay or omission in the exercise of any right or remedy of Landlord on
any default by Tenant shall impair such a right or remedy or be construed as a
waiver. The subsequent acceptance of Rent by Landlord after default by Tenant of
any covenant or term of this Lease shall not be deemed a waiver of such default,
other than a waiver of timely payment for the particular Rent payment involved,
and shall not prevent Landlord from maintaining an unlawful detainer or other
action based on such breach. No payment by Tenant or receipt by Landlord of a
lesser amount than the monthly Rent and other sums due hereunder shall be deemed
to be other than on account of the earliest Rent or other sums due, nor shall
any endorsement or statement on any check or accompanying any check or payment
be deemed an accord and satisfaction; and Landlord may
23
accept such check or payment without prejudice to Landlord's right to OF recover
the balance of such Rent or other sum or pursue any other remedy provided in
this Lease. No failure, partial exercise or delay on the part of the Landlord in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof.
27. CASUALTY DAMAGE
If the Premises or any part thereof shall be damaged by fire or other
casualty, Tenant shall give prompt written notice thereof to Landlord. In case
the Building shall be so damaged by fire or other casualty that substantial
alteration or reconstruction of the Building shall, in Landlord's sole opinion,
be required (whether or not the Premises shall have been damaged by such fire or
other casualty), Landlord may, at its option, terminate this Lease by notifying
Tenant in writing of such termination within ninety (90) days after the date of
such damage, in which event the Rent shall be abated as of the date of such
damage. If Landlord does not elect to terminate this Lease, and provided
insurance proceeds and any contributions from Tenant, if necessary, are
available to fully repair the damage, Landlord shall within one hundred twenty
(120) days after the date of such damage commence to repair and restore the
Building and shall proceed with reasonable diligence to restore the Building
(except that Landlord shall not be responsible for delays outside its control)
to substantially the same condition in which it was immediately prior to the
happening of the casualty; provided, Landlord shall not be required to rebuild,
repair, or replace any part of Tenant's furniture, furnishings, fixtures and/or
equipment removable by Tenant or any improvements, alterations or additions
installed by or for the benefit of Tenant under the provisions of this Lease.
Landlord shall not in any event be required to spend for such work an amount in
excess of the insurance proceeds (excluding any deductible) and any
contributions from Tenant, if necessary, actually received by Landlord as a
result of the fire or other casualty. Landlord shall not be liable for any
inconvenience or annoyance to Tenant, injury to the business of Tenant, loss of
use of any part of the Premises by the Tenant or loss of Tenant's personal
property resulting in any way from such damage or the repair thereof, except
that, subject to the provisions of the next sentence, Landlord shall allow
Tenant a fair diminution of Rent during the time and to the extent the Premises
are unfit for occupancy. Notwithstanding anything to the contrary contained
herein, if the Premises or any other portion of the Building be damaged by fire
or other casualty resulting from the intentional or negligent acts or omissions
of Tenant or any of Tenant's Representatives, (i) the Rent shall not be
diminished during the repair of such damage, (ii) Tenant shall not have any
right to terminate this Lease due to the occurrence of such casualty or damage,
and (iii) Tenant shall be liable to Landlord for the cost and expense of the
repair and restoration of all or any portion of the Building caused thereby
(including, without limitation, any deductible) to the extent such cost and
expense is not covered by insurance proceeds. In the event the holder of any
indebtedness secured by the Premises requires that the insurance proceeds be
applied to such indebtedness, then Landlord shall have the right to terminate
this Lease by delivering written notice of termination to Tenant within thirty
(30) days after the date of notice to Tenant of any such event, whereupon all
rights and obligations shall cease and terminate hereunder except for those
obligations expressly intended to survive any such termination of this Lease.
Except as otherwise provided in this Section 27, Tenant hereby waives the
provisions of Sections 1932(2.), 1933(4.), 1941 and 1942 of the California Civil
Code.
28. CONDEMNATION
If twenty-five percent (25%) or more of the Premises is condemned by
eminent domain, inversely condemned or sold in lieu of condemnation for any
public or quasi-public use or purpose
24
("Condemned"), then Tenant or Landlord may terminate this Lease as of the date
when physical possession of the Premises is taken and title vests in such
condemning authority, and Rent shall be adjusted to the date of termination.
Tenant shall not because of such condemnation assert any claim against Landlord
or the condemning authority for any compensation because of such condemnation,
and Landlord shall be entitled to receive the entire amount of any award without
deduction for any estate of interest or other interest of Tenant. If neither
party elects to terminate this Lease, Landlord shall, if necessary, promptly
proceed to restore the Premises or the Building to substantially its same
condition prior to such partial condemnation, allowing for the reasonable
effects of such partial condemnation, and a proportionate allowance shall be
made to Tenant, as solely determined by Landlord, for the Rent corresponding to
the time during which, and to the part of the Premises of which, Tenant is
deprived on account of such partial condemnation and restoration. Landlord shall
not be required to spend funds for restoration in excess of the amount received
by Landlord as compensation awarded.
29. ENVIRONMENTAL MATTERS/HAZARDOUS MATERIALS
29.1 HAZARDOUS MATERIALS DISCLOSURE CERTIFICATE: Prior to executing this
Lease, Tenant has completed, executed and delivered to Landlord Tenant's initial
Hazardous Materials Disclosure Certificate (the "Initial HazMat Certificate"), a
copy of which is attached hereto as EXHIBIT G and incorporated herein by this
reference. Tenant covenants, represents and warrants to Landlord that the
information on the Initial HazMat Certificate is true and correct and accurately
describes the uses) of Hazardous Materials which will be made and/or used on the
Premises by Tenant. Tenant shall commencing with the date which is one year from
the Commencement Date and continuing every year thereafter, complete, execute,
and deliver to Landlord, a Hazardous Materials Disclosure Certificate ("the
"HazMat Certificate") describing Tenant's present use of Hazardous Materials on
the Premises, and any other reasonably necessary documents as requested by
Landlord. The HazMat Certificate required hereunder shall be in substantially
the form as that which is attached hereto as EXHIBIT E.
29.2 DEFINITION OF HAZARDOUS MATERIALS: As used in this Lease, the term
Hazardous Materials shall mean and include (a) any hazardous or toxic wastes,
materials or substances, and other pollutants or contaminants, which are or
become regulated by any Environmental Laws; (b) petroleum, petroleum by
products, gasoline, diesel fuel, crude oil or any fraction thereof; (c) asbestos
and asbestos containing material, in any form, whether friable or non-friable;
(d) polychlorinated biphenyls; (e) radioactive materials; (f) lead and
lead-containing materials; (g) any other material, waste or substance displaying
toxic, reactive, ignitable or corrosive characteristics, as all such terms are
used in their broadest sense, and are defined or become defined by any
Environmental Law (defined below); or (h) any materials which cause or threatens
to cause a nuisance upon or waste, to any portion of the Premises, the Building,
the Lot, the Park or any surrounding properly; or poses or threatens to pose a
hazard to the health and safety of persons on the Premises or any surrounding
property.
29.3 PROHIBITION; ENVIRONMENTAL LAWS: Tenant shall not be entitled to use
nor store any Hazardous Materials on, in, or about the Premises, the Building,
the Lot and the Park, or any portion of the foregoing, without, in each
instance, obtaining Landlord's prior written consent thereto. If Landlord
consents to any such usage or storage, then Tenant shall be permitted to use
and/or store only those Hazardous Materials that are necessary for Tenant's
business and to the extent disclosed in the HazMat Certificate and as expressly
approved by Landlord in writing,
25
provided that such usage and storage is only to the extent of the quantities of
Hazardous Materials as specified in the then applicable HazMat Certificate as
expressly approved by Landlord and provided further that such usage and storage
is in full compliance with any and all local, state and federal environmental,
health and/or safety-related laws, statutes, orders, standards, courts'
decisions, ordinances, rules and regulations (as interpreted by judicial and
administrative decisions), decrees, directives, guidelines, permits or permit
conditions, currently existing d as amended, enacted, issued or adopted in the
future which are or become applicable to Tenant or all or any portion of the
Premises (collectively, the "Environmental Laws"). Tenant agrees that any
changes to the type and/or quantities of Hazardous Materials specified in the
most recent HazMat Certificate may be implemented only with the prior written
consent of Landlord, which consent may be given or withheld in Landlord's sole
discretion. Tenant shall not be entitled nor permitted to install any tanks
under, on or about the Premises for the storage of Hazardous Materials without
the express written consent of Landlord, which may be given or withheld in
Landlord's sole discretion. Landlord shall have the right at all times during
the Term of this Lease to (i) inspect the Premises, (ii) conduct tests and
investigations to determine whether Tenant is in compliance with the provisions
of this Section 29, and (iii) request lists of all Hazardous Materials used,
stored or otherwise located on, under or about any portion of the Premises
and/or the Common Areas. The cost of all such inspections, tests and
investigations shall be borne solely by Tenant, if Landlord reasonably
determines that Tenant or any of Tenant's Representatives are directly or
indirectly responsible in any manner for any contamination revealed by such
inspections, tests and investigations. The aforementioned rights granted herein
to Landlord and its representatives shall not create (a) a duty on Landlord's
part to inspect, test, investigate, monitor or otherwise observe the Premises or
the activities of Tenant and Tenant's Representatives with respect to Hazardous
Materials, including without limitation, Tenant's operation, use and any
remediation related thereto, or (b) liability on the part of Landlord and its
representatives for Tenant's use, storage, disposal or remediation of Hazardous
Materials, it being understood that Tenant shall be solely responsible for all
liability in connection therewith.
29.4 TENANT'S ENVIRONMENTAL OBLIGATIONS: Tenant shall give to Landlord
immediate verbal and follow-up written notice of any spills, releases,
discharges, disposals, emissions, migrations, removals or transportation of
Hazardous Materials on, under or about any portion of the Premises or in any
Common Areas. Tenant, at its sole cost and expense, covenants and warrants to
promptly investigate, clean up, remove, restore and otherwise remediate
(including, without limitation, preparation of any feasibility studies or
reports and the performance of any and all closures) any spilt, release,
discharge, disposal, emission, migration or transportation of Hazardous
Materials arising from or related to the intentional or negligent acts or
omissions of Tenant or Tenant's Representatives such that the affected portions
of the Park and any adjacent property are returned to the condition existing
prior to the appearance of such Hazardous Materials. Any such investigation,
clean up, removal, restoration and other remediation shall only be performed
after Tenant has obtained Landlord's prior written consent, which consent shall
not be unreasonably withheld so long as such actions would not potentially have
a material adverse long-term or short-term effect on any portion of the
Premises, the Building, the Lot or the Park. Notwithstanding the foregoing,
Tenant shall be entitled to respond immediately to an emergency without first
obtaining Landlord's prior written consent. Tenant, at its sole cost and
expense, shall conduct and perform, or cause to be conducted and performed, all
closures as required by any Environmental Laws or any agencies or other
governmental authorities having jurisdiction thereof. If Tenant fails to so
promptly investigate, clean up, remove, restore, provide closure or otherwise so
remediate, Landlord may, but without obligation to do so, take any and all steps
necessary to rectify the same and Tenant
26
shall promptly reimburse Landlord, upon demand, for all costs and expenses to
Landlord of performing investigation, clean up, removal, restoration, closure
and remediation work. All such work undertaken by Tenant, as required herein,
shall be performed in such a manner so as to enable Landlord to make full
economic use of the Premises, the Building, the Lot and the Park after the
satisfactory completion of such work.
29.5 ENVIRONMENTAL INDEMNITY: In addition to Tenant's obligations as set
forth hereinabove, Tenant and Tenant's officers and directors agree to, and
shall, protect, indemnify, defend (with counsel acceptable to Landlord) and hold
Landlord and tie other Indemnitees harmless from and against any and all claims,
judgments, damages, penalties, floes, liabilities, losses (including, without
limitation, diminution in value of any portion of the Premises, the Building,
the Lot or the Park, damages for the loss of or restriction on the use of
rentable or usable space, and from any adverse impact of Landlord's marketing of
any space within the Building and/or Park), suits, administrative proceedings
and costs (including, but not limited to, attorneys' and consultant fees and
court costs) arising at any time during or after the Term of this Lease in
connection with or related to, directly or indirectly, the use, presence,
transportation, storage, disposal, migration, removal, spill, release or
discharge of Hazardous Materials on, in or about any portion of the Premises,
the Common Areas, the Building, the Lot or the Park as a result (directly or
indirectly) of the intentional or negligent acts or omissions of Tenant or any
of Tenant's Representatives. Neither the written consent of Landlord to the
presence, use or storage of Hazardous Materials in, on, under or about any
portion of the Premises, the Building, the Lot and/or the Park, nor the strict
compliance by Tenant with all Environmental Laws shall excuse Tenant and
Tenant's officers and directors from its obligations of indemnification pursuant
hereto. Tenant shall not be relieved of its indemnification obligations under
the provisions of this Section 29.5 due to Landlord's status as either an
"owner" or "operator" under any Environmental Laws.
29.6 SURVIVAL: Tenant's obligations and liabilities pursuant to the
provisions of this Section 29 shall survive the expiration or earlier
termination of this Lease. If it is determined by Landlord that the condition of
all or any portion of the Premises, the Building, the Lot and/or the Park is not
in compliance with the provisions of this Lease with respect to Hazardous
Materials, including without limitation all Environmental Laws at the expiration
or earlier termination of this Lease, then in Landlord's sole discretion,
Landlord may require Tenant to hold over possession of the Premises until Tenant
can surrender the Premises to Landlord in the condition in which the Premises
existed as of the Commencement Date and prior to the appearance of such
Hazardous Materials except for reasonable wear and tear, including without
limitation, the conduct or performance of any closures as required by any
Environmental Laws. The burden of proof hereunder shall be upon Tenant. For
purposes hereof, the term "reasonable wear and tear" shall not include any
deterioration in the condition or diminution of the value of any portion of the
Premises, the Building, the Lot and/or the Park in any manner whatsoever related
to directly, or indirectly, Hazardous Materials. Any such holdover by Tenant
will be with Landlord's consent, will not be terminable by Tenant in any event
or circumstance and will otherwise be subject to the provisions of Section 22 of
this Lease.
29.7 DISCLOSURE: The land described herein contains residual hazardous
substances. Such condition renders the land and the owner, Tenant or other
possessor of the land subject to requirements, restrictions, provisions, and
liabilities contained in chapter 6.5 and chapter 6.8 of division 20 of the
Health and Safety Code as same may be amended from time, and any successor
statutes thereof. This statement is not a declaration that a hazard to public
health, safety and welfare
27
exists. Notwithstanding anything to the contrary contained herein, nothing
contained in this Section 29 shall be deemed to make Tenant responsible for any
Hazardous Materials existing at the Premises as of the date of Landlord's
delivery of possession of the Premises.
30. FINANCIAL STATEMENTS
Tenant, for the reliance of Landlord, any lender holding or anticipated to
acquire a lien upon the Premises, the Building or the Park or any portion
thereof, or any prospective purchaser of the Building or the Park or any portion
thereof, within ten (10) days after Landlord's request therefor, but not more
often than once annually so long as Tenant is not in default of this Lease,
shall deliver to Landlord the then current audited financial statements of
Tenant (including interim periods following the end of the last fiscal year for
which annual statements are available) which statements shall be prepared or
compiled by a certified public accountant and shall present fairly the financial
condition of Tenant at such dates and the result of its operations and changes
in its financial positions for the periods ended on such dates. If an audited
financial statement has not been prepared, Tenant shall provide Landlord with an
unaudited financial statement and/or such other information, the type and form
of which are acceptable to Landlord in Landlord's reasonable discretion, which
reflects the financial condition of Tenant. If Landlord so requests, Tenant
shall deliver to Landlord an opinion of a certified public accountant, including
a balance sheet and profit and loss statement for the most recent prior year,
all prepared in accordance with generally accepted accounting principles
consistently applied. Any and all options granted to Tenant hereunder shall be
subject to and conditioned upon Landlord's reasonable approval of Tenant's
financial condition at the time of Tenant's exercise of any such option, if
Tenant is not yet profitable.
31. GENERAL PROVISIONS
31.1 TIME. Time is of the essence in this Lease and with respect to each
and all of its provisions in which performance is a factor.
31.2 SUCCESSORS AND ASSIGNS. The covenants and conditions herein contained,
subject to the provisions as to assignment, apply to and bind the heirs,
successors, executors, administrators and assigns of the parties hereto.
31.3 RECORDATION. Tenant shall not record this Lease or a short form
memorandum hereof t without the prior written consent of the Landlord.
31.4 LANDLORD'S PERSONAL LIABILITY. The liability of Landlord (which, for
purposes of this Lease, shall include Landlord and the owner of the Building if
other than Landlord) to Tenant for any default by Landlord under the terms of
this Lease shall be limited to the actual interest of Landlord and its present
or future partners or members in the Premises or the Building, and Tenant agrees
to look solely to the Premises for satisfaction of any liability and shall not
look to other assets of Landlord nor seek any recourse against the assets of the
individual partners, members, directors, officers, shareholders, agents or
employees of Landlord (including without limitation, any property management
company of Landlord); it being intended that Landlord and the individual
partners, members, directors, officers, shareholders, agents and employees of
Landlord (including without limitation, any property management company of
Landlord) shall not be personally liable in any manner whatsoever for any
judgment or deficiency. The liability of Landlord under this Lease is limited to
its actual period of ownership of title to the Building, and Landlord shall be
automatically
28
released from further performance under this Lease upon transfer of Landlord's
interest in the Premises or the Building.
31.5 SEPARABILITY. Any provisions of this Lease which shall prove to be
invalid, void or illegal shall in no way affect, impair or invalidate any other
provisions hereof and such other provision shall remain in full force and
effect.
31.6 CHOICE OF LAW. This Lease shall be governed by, and construed in
accordance with, the laws of the State of California.
31.7 ATTORNEYS' FEES. In the event any dispute between the parties results
in litigation or other proceeding, the prevailing party shall be reimbursed by
the party not prevailing for all reasonable costs and expenses, including,
without limitation, reasonable attorneys' and experts' fees and costs incurred
by the prevailing party in connection with such litigation or other proceeding,
and any appeal thereof. Such costs, expenses and fees shall be included in and
made a part of the judgment recovered by the prevailing party, if any.
31.8 ENTIRE AGREEMENT. This Lease supersedes any prior agreements,
representations, negotiations or correspondence between the parties, and
contains the entire agreement of the parties on matters covered. No other
agreement, statement or promise made by any party, that is not in writing and
signed by all parties to this Lease, shall be binding.
31.9 WARRANTY OF AUTHORITY. On the date that Tenant executes this Lease,
Tenant shall deliver to Landlord an original certificate of status for Tenant
issued by the California Secretary of State or statement of partnership for
Tenant recorded in the county in which the Premises are located, as applicable,
and such other documents as Landlord may reasonably request with regard to the
lawful existence of Tenant. Each person executing this Lease on behalf of a
party represents and warrants that (1) such person is duly and validly
authorized to do so on behalf of the entity it purports to so bind, and (2) if
such party is a partnership, corporation or trustee, that such partnership,
corporation or trustee has full right and authority to enter into this Lease and
perform all of its obligations hereunder. Tenant hereby warrants that this Lease
is valid and binding upon Tenant and enforceable against Tenant in accordance
with its terms.
31.10 NOTICES. Any and all notices and demands required or permitted to be
given hereunder to Landlord shall be in writing and shall be sent: (a) by United
States mail, certified and postage prepaid; or (b) by personal delivery; or (c)
by overnight courier, addressed to Landlord at 101 Lincoln Centre Drive, Fourth
Floor, Foster City, California 94404-1167, with a copy to AMB Property L.P., c/o
AMB Property Corporation at 505 Montgomery Street, San Francisco, California
94111. Any and all notices and demands required or permitted to be given
hereunder to Tenant shall be in writing and shall be sent: (i) by United States
mail, certified and postage prepaid; or (ii) by personal delivery to any
employee or agent of Tenant over the age of eighteen (18) years of age; or (iii)
by overnight courier, all of which shall be addressed to Tenant at the Premises.
Notice and/or demand shall be deemed given upon the earlier of actual receipt or
the third day following deposit in the United States mail. Any notice or
requirement of service required by any statute or law now or hereafter in
effect, including, but not limited to, California Code of Civil Procedure
Sections 1161, 1161.1, and 1162 (including any amendments, supplements or
substitutions thereof), is hereby waived by Tenant.
29
31.11 JOINT AND SEVERAL. If Tenant consists of more than one person or
entity, the obligations of all such persons or entities shall be joint and
several.
31.12 Covenants and Conditions. Each provision to be performed by Tenant
hereunder shall be deemed to be both a covenant and a condition.
31.13 WAIVER OF JURY TRIAL. The parties hereto shall and they hereby do
waive trial by jury in any action, proceeding or counterclaim brought by either
of the parties hereto against the other on any matters whatsoever arising out of
or in any way related to this Lease; the relationship of Landlord and Tenant,
Tenant's use or occupancy of the Premises, the Building or the Park, and/or any
claim of injury, loss or damage.
31.14 COUNTERCLAIMS. In the event Landlord commences any proceedings for
nonpayment of Rent, Additional Rent, or any other sums or amounts due hereunder,
Tenant shall not interpose any counterclaim of whatever nature or description in
any such proceedings, provided, however, nothing contained herein shall be
deemed or construed as a waiver of the Tenant's right to assert such claims in
any separate action brought by Tenant or the right to offset the amount of any
final judgment owed by Landlord to Tenant.
31.15 UNDERLINING. The use of underlining within the Lease is for
Landlord's reference purposes only and no other meaning or emphasis is intended
by this use, nor should any be inferred.
31.16 MERGER. The voluntary or other surrender of this Lease by Tenant, the
mutual termination or cancellation hereof by Landlord and Tenant, or a
termination of this Lease by Landlord for a material default by Tenant
hereunder, shall not work a merger, and, at the sole option of Landlord, (i)
shall terminate all or any existing subleases or subtenancies, or (ii) may
operate as an assignment to Landlord of any or all of such subleases or
subtenancies. Landlord's election of either or both of the foregoing options
shall be exercised by delivery by Landlord of written notice thereof to Tenant
and all known subtenants under any sublease.
32. SIGNS
Ail signs and graphics of every kind visible in or from public view or
corridors or the exterior of the Premises shall be subject to Landlord's prior
written approval and shall be subject to any applicable governmental laws,
ordinances, and regulations and in compliance with Landlord's sign criteria as
same may exist from time to time or as set forth in Exhibit H hereto and made a
part hereof. Tenant shall remove all such signs and graphics prior to the
termination of this Lease. Such installations and removals shall be made in a
manner as to avoid damage or defacement of the Premises; and Tenant shall repair
any damage or defacement, including without limitation, discoloration caused by
such installation or removal. Landlord shall have the right, at its option, to
deduct from the Security Deposit such sums as are reasonably necessary to remove
such signs, including, but not limited to, the costs and expenses associated
with any repairs necessitated by such removal. Notwithstanding the foregoing, in
no event shall any: (a) neon, flashing or moving sign(s) or (b) sign(s) which
shall interfere with the visibility of any sign, awning, canopy, advertising
matter, or decoration of any kind of any other business or occupant of the
Building or the Park be permitted hereunder. Tenant further agrees to maintain
any such sign, awning, canopy, advertising matter, lettering, decoration or
other thing as may be approved in good condition and repair at all times.
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33. MORTGAGEE PROTECTION
Upon any default on the part of Landlord, Tenant will give written notice
by registered or certified mail to any beneficiary of a deed of trust or
mortgagee of a mortgage covering the Premises who has provided Tenant with
notice of their interest together with an address, for receiving notice, and
shall offer such beneficiary or mortgagee a reasonable opportunity to cure the
default (which, in no event shall be less than ninety (90) days), including time
to obtain possession of the Premises by power of sale or a judicial foreclosure,
if such should prove necessary to effect a cure. If such default cannot be cured
within such time period, then such additional time as may be necessary will be
given to such beneficiary or mortgagee to effect such cure so long as such
beneficiary or mortgagee has commenced the cure within the original time period
and thereafter diligently pursues such cure to completion, in which event this
Lease shall not be terminated while such cure is being diligently pursued.
Tenant agrees that each lender to whom this Lease has been assigned by Landlord
is an express third party beneficiary hereof. Tenant shall not make any
prepayment of Rent more than one (1) month in advance without the prior written
consent of each such lender, except if Tenant is required to make quarterly
payments of Rent in advance pursuant to the provisions of Section 8 above.
Tenant waives the collection of any deposit from such lenders) or any purchaser
at a foreclosure sale of such lender(s)' deed of trust unless the lender(s) or
such purchaser shall have actually received and not refunded the deposit. Tenant
agrees to make all payments under this Lease to the lender with the most senior
encumbrance upon receiving a direction, in writing, to pay said amounts to such
lender. Tenant shall comply with such written direction to pay without
determining whether an event of default exists under such lender's loan to
Landlord.
34. QUITCLAIM
Upon any termination of this Lease, Tenant shall, at Landlord's request,
execute, have acknowledged and deliver to Landlord a quitclaim deed of Tenant's
interest in arid to the Premises. If Tenant fails to so deliver to Landlord such
a quitclaim deed, Tenant hereby agrees that Landlord shall have the full
authority and right to record such a quitclaim deed signed only by Landlord and
such quitclaim deed shall be deemed conclusive and binding upon Tenant.
35. MODIFICATIONS FOR LENDER
If, in connection with obtaining financing for the Premises or any portion
thereof, Landlord's lender shall request reasonable modifications) to this Lease
as a condition to such financing, Tenant shall not unreasonably withhold, delay
or defer its consent thereto provided such modifications do not materially
adversely affect Tenant's rights hereunder or the use, occupancy or quiet
enjoyment of Tenant hereunder.
36. WARRANTIES OF TENANT
Tenant hereby warrants and represents to Landlord, for the express benefit
of Landlord, that Tenant has undertaken a complete and independent evaluation of
the risks inherent in the execution of this Lease and the operation of the
Premises for the use permitted hereby, and that, based upon said independent
evaluation, Tenant has elected to enter into this Lease and hereby assumes all
risks with respect thereto. Tenant hereby further warrants and represents to
Landlord, for the express benefit of Landlord, that in entering into this Lease,
Tenant has not relied upon any statement, fact,
31
promise or representation (whether express or implied, written or oral) not
specifically set forth herein in writing and that any statement, fact, promise
or representation (whether express or implied, written or oral) made at any time
to Tenant, which is not expressly incorporated herein in writing, is hereby
waived by Tenant.
37. COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT
Landlord and Tenant hereby agree and acknowledge that the Premises, the
Building and/or the Park may be subject to the requirements of the Americans
with Disabilities Act, a federal law codified at 42 U.S.C. 12101 et seq.,
including, but not limited to Title III thereof, all regulations and guidelines
related thereto, together with any and all laws, rules, regulations, ordinances,
codes and statutes now or hereafter enacted by local or state agencies having
jurisdiction thereof, including all requirements of Title 24 of the State of
California, as the same may be in effect on the date of this Lease and may be
hereafter modified, amended or supplemented (collectively, the "ADA"). Tenant
shall be solely responsible for conducting its own independent investigation of
this matter and for ensuring that the design of all improvements or alterations
to be made to the Premises by, or on behalf of, Tenant strictly comply with all
requirements of the ADA. Subject to reimbursement pursuant to Section 6 of the
Lease, if any barrier removal work or other work is required to the Building,
the Common Areas or the Park under the ADA, then such work shall be the
responsibility of Landlord; provided, if such work is required under the ADA as
a result of Tenant's use of the Premises or any work or alteration made to the
Premises by or on behalf of Tenant, then such work shall be performed by
Landlord at the sole cost and expense of Tenant. Except as otherwise expressly
provided in this provision, Tenant shall be responsible at its sole cost and
expense for fully and faithfully complying with all applicable requirements of
the ADA, including without limitation, not discriminating against any disabled
persons in the operation of Tenant's business in or about the Premises, and
offering or otherwise providing auxiliary aids and services as, and when
required by the ADA. Within ten (10) days after receipt, Landlord and Tenant
shall advise the other partly in writing, and provide the other with copies of
(as applicable), any notices alleging violation of the ADA relating to any
portion of the Premises or the Building; any claims made or threatened in
writing regarding noncompliance with the ADA and relating to any portion of the
Premises or the Building; or any governmental or regulatory actions or
investigations instituted or threatened regarding noncompliance with the ADA and
relating to any portion of the Premises or the Building. Tenant shall and hereby
agrees to protect, defend (with counsel acceptable to Landlord) and hold
Landlord and the other Indemnitees harmless and indemnify the Indemnitees from
and against all liabilities, damages, claims, losses, penalties, judgments,
charges and expenses (including reasonable attorneys' fees, costs of court and
expenses necessary in the prosecution or defense of any litigation including the
enforcement of this provision) arising from or in any way related to, directly
or indirectly, Tenant's or Tenant's Representatives' violation or alleged
violation of the ADA. Tenant agrees that the obligations of Tenant herein shall
survive the expiration or earlier termination of this Lease.
38. BROKERAGE COMMISSION
Landlord and Tenant each represents and warrants for the benefit of the
other that it has had no dealings with any real estate broker, agent or finder
in connection with the Premises and/or the negotiation of this Lease, except for
the Brokers) (as set forth on Page I), and that it knows of no other real estate
broker, agent or finder who is or might be entitled to a real estate brokerage
commission or finder's fee in connection with this Lease or otherwise based upon
contacts between
32
the claimant and Tenant. Each party shall indemnify and hold harmless the other
from and against any and all liabilities or expenses arising out of claims made
for a fee or commission by any real estate broker, agent or finder in connection
with the Premises and this Lease other than Broker(s), if any, resulting from
the actions of the indemnifying party. Any real estate brokerage commission or
finder's fee payable to the Broker(s) in connection with this Lease shall only
be payable and applicable to the extent of the initial Term of the Lease and to
the extent of the Premises as same exist as of the date on which Tenant executes
this Lease. Unless expressly agreed to in writing by Landlord and Broker(s), no
real estate brokerage commission or finder's fee shall be owed to, or otherwise
payable to, the Broker(s) for any renewals or other extensions of the initial
Term of this Lease or for any additional space leased by Tenant other than the
Premises as same exists as of the date on which Tenant executes this Lease.
Tenant further represents and warrants to Landlord that Tenant will not receive
(i) any portion of any brokerage commission or finder's fee payable to the
Brokers) in connection with this Lease or (ii) any other form of compensation or
incentive from the Brokers) with respect to this Lease.
39. QUIET ENJOYMENT
Landlord covenants with Tenant, upon the paying of Rent and observing and
keeping the covenants, agreements and conditions of this Lease on its part to be
kept, and during the periods that Tenant is not otherwise in default of any of
the terms or provisions of this Lease, and subject to the rights of any of
Landlord's lenders, (i) that Tenant shall and may peaceably and quietly hold,
occupy and enjoy the Premises and the Common Areas during the Term of this
Lease, and (ii) neither Landlord, nor any successor or assign of Landlord, shall
disturb Tenant's occupancy or enjoyment of the Premises and the Common Areas.
40. LANDLORD'S ABILITY TO PERFORM TENANT'S UNPERFORMED OBLIGATIONS
Notwithstanding anything to the contrary contained in this Lease, if Tenant
shall fail to perform any of the terms, provisions, covenants or conditions to
be performed or complied with by Tenant pursuant to this Lease, and/or if the
failure of Tenant relates to a matter which in -Landlord's judgment reasonably
exercised is of an emergency nature and such failure shall remain uncured for a
period of time commensurate with such emergency, then Landlord may, at
Landlord's option without any obligation to do so, and in its sole discretion as
to the necessity therefor, perform any such term, provision, covenant, or
condition, or make any such payment and Landlord by reason of so doing shall not
be liable or responsible for any loss or damage thereby sustained by Tenant or
anyone holding under or through Tenant. If Landlord so performs any of Tenant's
obligations hereunder, the full amount of the cost and expense entailed or the
payment so made or the amount of the loss so sustained shall immediately be
owing by Tenant to Landlord, and Tenant shall promptly pay to Landlord upon
demand, as Additional Rent, the full amount thereof with interest thereon from
the date of payment at the greater of (i) ten percent (10%) per annum, or (ii)
the highest rate permitted by applicable law and Enforcement Expenses.
41. TENANT'S EARLY TERMINATION OPTION
41.1 TERMINATION DATE: Tenant shall have a one-time option (the
"Termination Option") to terminate this Lease, effective as of the April 15,
2001 (the "Termination Date"). The Termination Option is granted subject to the
following terms and conditions:
33
41.1.1 PERMIT APPROVAL: So long as Tenant has submitted its plans for
Plan Check and Conditional Use Permit Approval by December 15th, 2000, and,
despite, the exercise of Tenant's best efforts to obtain such Plan Check
and Conditional Use Permit Approval, by or before March 15, 2001, Tenant
has not received approval of a Conditional Use Permit and/or Building
Permit by the City of Menlo Park for Tenant's Alterations to the Premises
(i) to accommodate Tenant's use of the Premises as an R&D Lab for research
on lab animals, and (ii) with an employee count of no more than twenty-five
employees at the Premises; and
41.1.2 NOTICE: Tenant delivers to Landlord written notice of Tenant's
election to exercise the Termination Option, which notice is given no later
than March 15, 2001 (the "Termination Notice"); and
41.1.3 NO DEFAULT: Tenant is not then in default under this Lease
beyond any applicable cure periods either on the date that Tenant exercises
the Termination Option, or unless waived in writing by Landlord, on the
Termination Date; and
41.1.4 TERMINATION FEE: Tenant pays to Landlord concurrently with
delivery of the Termination Notice, a cash lease termination fee (the
"Fee") equal to one hundred eleven thousand one hundred eighty five and
00/100 dollars ($111,185.00).
41.2 TERMS: If Tenant timely and properly exercises the Termination Option,
(i) all rent payable under this Lease shall be paid through and apportioned as
of the Termination Date (in addition to payment by Tenant of the Fee); (ii)
neither party shall have any rights, estates, liabilities, or obligations under
this Lease for the period accruing after the Termination Date, except those
which by the provisions of this Lease, expressly survive the expiration or
termination of the Term of this Lease; (iii) Tenant shall surrender and, vacate
the Premises and deliver possession thereof to Landlord on or before the
Termination Date in the condition required under this Lease for surrender of the
Premises; and (iv) Landlord and Tenant shall enter into a written agreement
reflecting the termination of this Lease upon the terms provided for herein,
which agreement shall be executed within thirty (30) days after Tenant exercises
the Termination Option and delivers to Landlord the written notice required
above. It is the parties' intention that nothing contained herein shall impair,
diminish or otherwise prevent Landlord from recovering from Tenant such
additional sums as may be necessary for payment of Tenant's Share of the
Operating Expenses, Tax Expenses, Common Area Utility Costs, Utility Expenses,
Administrative Charges and any other sums due and payable under this Lease
allocated to any period prior to the Termination Date, including, any sums
required to repair any damage to the Premises and/or restore the Premises to the
condition required under the provisions of this Lease.
41.3 TERMINATION: The Termination Option shall automatically terminate and
become null and void upon the earlier to occur of (i) the breach or default by
Tenant of any of the terms of this Lease beyond any applicable cure periods
either on the date that tenant exercises the Termination Option, or unless
waived in writing by Landlord, on the Termination Date; (ii) the termination of
Tenant's right to possession of the Premises under the provisions of this Lease;
or (iii) the failure of Tenant to timely or properly exercise the Termination
option as contemplated herein. This Termination Option is personal to Tenant and
may not be assigned voluntarily, separate from or as part of the Lease.
34
IN WITNESS WHEREOF, this Lease is executed by the parties as of the Lease
Date referenced on Page I of this Lease.
TENANT:
DELTAGEN, INC.,
a California corporation
By:
-----------------------------------------
Its:
-----------------------------------------
Date:
-----------------------------------------
By:
-----------------------------------------
Its:
-----------------------------------------
Date:
-----------------------------------------
LANDLORD:
AMB PROPERTY, L.P.,
a Delaware limited partnership
By: AMB PROPERTY CORPORATION,
a Maryland corporation, its general partner
By:
--------------------------------------
Its: Executive Vice President
Date: __________________
If Tenant is a CORPORATION, the authorized officers must sign on behalf of the
corporation and indicate the capacity in which they are signing. The Lease must
be executed by the president or vice-president AND the secretary or assistant
secretary, UNLESS the bylaws or a resolution of the board of directors shall
otherwise provide, in which event, the bylaws or a certified copy of the
resolution, as the case may be, must be attached to this Lease.
35
EXHIBIT A
PREMISES
This exhibit, entitled "Premises", is and shall constitute EXHIBIT A to that
certain Lease Agreement dated October 1, 2000 (the "Lease"), by and between AMB
PROPERTY, L.P., a Delaware limited partnership ("Landlord") and Deltagen, Inc.,
a California corporation ("Tenant") for the leasing of certain premises located
in the Willow Park at Building A, 1255 Hamilton Court, Menlo Park, California
(the "Premises").
The Premises consist of the rentable square footage of space specified in the
Basic Lease Information and has the address specified in the Basic Lease
Information. The Premises are a part of and are contained in the Building
specified in the Basic Lease Information. The area below depicts the Premises
within the Building.
A-1
EXHIBIT B
TENANT IMPROVEMENTS
This exhibit, entitled "Tenant Improvements", is and shall constitute EXHIBIT B
to that certain Lease Agreement dated October 1, 2000 (the "Lease"), by and
between AMB PROPERTY, L.P., a Delaware limited partnership ("Landlord") and
Deltagen, Inc., a California corporation ("Tenant") for the leasing of certain
premises located in the Willow Park at Building A, 1255 Hamilton Court, Memo
Park, California (the "Premises"). The terms, conditions and provisions of this
EXHIBIT B are hereby incorporated into and are made a part of the Lease. Any
capitalized terms used herein and not otherwise defined herein shall have the
meaning ascribed to such terms as set forth in the Lease:
TENANT IMPROVEMENTS, AS-IS CONDITION: Tenant hereby accepts the Premises as
suitable for Tenant's intended use and as being in good operating order,
condition and repair, "AS-IS", and without representation or warranty by
Landlord nor any of Landlord's agents, representatives or employees as to the
suitability, fitness, condition, use or occupancy which may be made thereof.
Tenant further acknowledges and agrees that neither Landlord nor any of
Landlord's agents, representatives or employees has agreed to undertake any
alterations or construct any improvements ("Tenant Improvements") to the
Premises. Any exceptions to the foregoing must be by written agreement executed
by Landlord and Tenant.
B-1
EXHIBIT C TO LEASE AGREEMENT
RULES & REGULATIONS
This exhibit, entitled "Rules & Regulations", is and shall constitute EXHIBIT C
to that certain Lease Agreement dated October 1, 2000 (the "Lease"), by and
between AMB PROPERTY, L.P., a Delaware limited partnership ("Landlord") and
Deltagen, Inc., a California corporation ("Tenant") for the leasing of certain
premises located in the Willow Park at Building A, 1255 Hamilton Court, Memo
Park, California (the "Premises"). The terms, conditions and provisions of this
EXHIBIT C are hereby incorporated into and are made a part of the Lease. Any
capitalized terms used herein and not otherwise defined herein shall have the
meaning ascribed to such terms as set forth in the Lease:
1. No advertisement, picture or sign of any sort shall be displayed on or
outside the Premises or the Building without the prior written consent of
Landlord. Landlord shall have the right to remove any such unapproved item
without notice and at Tenant's expense.
2. Tenant shall not regularly park motor vehicles in designated parking areas
after the conclusion of normal daily business activity.
3. Tenant shall not use any method of heating or air conditioning other than
that supplied by Landlord without the prior written consent of Landlord.
4. All window coverings installed by Tenant and visible from the outside of the
Building require the prior written approval of Landlord.
5. Tenant shall not use, keep or permit to be used or kept any foul or noxious
gas or substance or any flammable or combustible materials on or around the
Premises, the Building or the Park.
6. Tenant shall not alter any lock of install any new locks or bolts on any door
at the Premises without the prior consent of Landlord.
7. Tenant agrees not to make any duplicate keys without the prior consent of
Landlord.
8. Tenant shall park motor vehicles in those general parking areas as designated
by Landlord except for loading and unloading. During those periods of loading
and unloading, Tenant shall not unreasonably interfere with traffic flow within
the Park and loading and unloading areas of other Tenants.
9. Tenant shall not disturb, solicit or canvas any occupant of the Building or
Park and shall cooperate to prevent same.
10. No person shall go on the roof without Landlord's permission.
11. Business machines and mechanical equipment belonging to Tenant which cause
noise or vibration that may be transmitted to the structure of the Building, to
such a degree as to be objectionable to Landlord or other Tenants, shall be
placed and maintained by Tenant, at Tenant's expense, on vibration eliminators
or other devices sufficient to eliminate noise or vibration.
C-1
12. All goods, including material used to store goods, delivered to the Premises
of Tenant shall be immediately moved into the Premises and shall not be left in
parking or receiving areas overnight.
13. Tractor trailers which must be unhooked or parked with dolly wheels beyond
the concrete loading areas must use steel plates or wood blocks under the dolly
wheels to prevent damage to the asphalt paving surfaces. No parking or storing
of such trailers will be permitted in the auto parking areas of the Park or on
streets adjacent thereto.
14. Forklifts which operate on asphalt paving areas shall not have solid rubber
tires and shall only use tires that do not damage the asphalt.
15. Tenant is responsible for the storage and removal of all trash and refuse.
All such trash and refuse shall be contained in suitable receptacles stored
behind screened enclosures at locations approved by Landlord.
16. Tenant shall not store or permit the storage or placement of goods, or
merchandise or pallets or equipment of any sort in or around the Premises, the
Building, the Park or any of the Common Areas of the foregoing. No displays or
sales of merchandise shall be allowed in the parking lots or other Common Areas.
17. Tenant shall not permit any animals, including, but not limited to, any
household pets, to be brought or kept in or about the Premises, the Building,
the Park or any of the Common Areas of the foregoing; provided, however, that
Tenant shall be allowed to bring into and keep live mice on the Premises for the
purpose of research and development.
18. Tenant shall not permit any motor vehicles to be washed on any portion of
the Premises or in the Common Areas of the Park, nor shall Tenant permit
mechanical work or maintenance of motor vehicles to be performed on any portion
of the Premises or in the Common Areas of the Park.
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EXHIBIT D
WILLOW PARK
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
This Declaration of Covenants, Conditions and Restrictions (hereinafter
called "Declaration") is made this twenty-fifth day of August 1979, by LINCOLN
PROPERTY COMPANY NO. 238, A CALIFORNIA LIMITED PARTNERSHIP (PHASES 1 & 2);
LINCOLN PROPERTY COMPANY NO. 287, LTD., A CALIFORNIA LIMITED PARTNERSHIP (PHASE
3); LINCOLN PROPERTY COMPANY NO. 355, LTD., A CALIFORNIA LIMITED PARTNERSHIP
(PHASE 4); LINCOLN PROPERTY COMPANY NO. 440, LTD., A CALIFORNIA LIMITED
PARTNERSHIP (PHASE 5); LINCOLN PROPERTY COMPANY NO. 1179, A CALIFORNIA LIMITED
PARTNERSHIP (PHASE 6); LINCOLN PROPERTY COMPANY NO. 2036 LIMITED PARTNERSHIP, A
CALIFORNIA LIMITED PARTNERSHIP (PHASE 7) (hereinafter called "Lincoln Property
Company").
RECITALS
1. Declarant is, or at the time of recording this Declaration will be, the
Owner in fee of all that certain real property which is situated in the City of
Menlo Park, County of San Mateo; State of California, described on the map
(hereinafter called "Map") entitled "Menlo Industrial Center, Menlo Park,
California" which Map is tiled in the office of the Recorder of the County of
San Mateo, State of California, on October I, 1979, in Book No. 99 of Maps, at
pages 81, 82 and 83.
2. As Owner of the real property described in Paragraph 1 of these
Recitals, Declarant has executed this Declaration for the purpose of imposing
upon all portions of said real property (outer than Parcel E as shown on the
Map) a general plan of improvement for the benefit of said real property (other
than said Parcel E) and its present and future owners. Said real property (other
than Parcel E) is hereinafter called the "Property."
NOW, THEREFORE, Declarant hereby declares that the Property is now held,
and shall hereafter be held, developed, encumbered, hypothecated, transferred,
sold, leased, conveyed, improved, used and occupied subject to the covenants,
conditions, restrictions and limitations hereinafter set forth, all of which are
declared to be in furtherance of a plan for the development and operation of a
landscaped business and industrial park and are established for the purpose of
enhancing and protecting the value, attractiveness and desirability of the
Property and every part thereof. Each of the covenants, conditions restrictions
and limitations set forth herein shall run with the land, and every part
thereof, and shall burden as well as inure to the benefit of and pass with each
and every portion of the Property hereinafter developed, encumbered,
hypothecated, transferred, sold, leased, conveyed, improved, used or occupied
and shall apply to and bind any and all parties having or acquiring any right,
title, license or interest in the Property or any part thereof.
ARTICLE I
DEFINITIONS
Unless the context otherwise specifies or requires, the terms defined in
this Article I shall, for all purposes of this Declaration, have the meanings
herein specified.
1.1 BUILDING. "Building" shall mean the principal structure or structures
on any Site, including all garages, outside platforms, outbuildings, docks and
the like.
D-1
1.2 DECLARANT. "Declarant shall mean Lincoln Property Company, its
successors and assigns. Declarant's assigns shall be deemed to include any party
whom Declarant designates by means of a notice recorded in the Official Records
of San Mateo County, as the party who, from and after the date such notice is
recorded, will perform Declarant's functions under this Declaration.
1.3 DEED OF TRUST. "Deed of Trust" shall mean, with respect to any portion
of the properly, a duly recorded Deed of Trust, mortgage or other instrument
which created a lien on the portion of the Property it describes.
1.4 IMPROVEMENTS. "Improvements" shall mean and include without limitation
buildings, outbuildings, pedestrian and vehicle access facilities, parking
areas, loading areas, fences, walls, hedged mass plantings, landscaping, poles,
signs and any structures of any type or kind.
1.5 OWNER. "Owner" shall mean any person, firm, corporation or other legal
entity (including Declarant) which owns fee title to a Site, as shown by the
Official Records of the County of San Mateo; provided, however, that the term
"Owner" shall not include a mortgage or beneficiary under a deed of trust
holding a security interest in a Site unless such mortgagee or beneficiary is in
actual physical possession of the Site.
Whenever this Declaration creates or imposes an obligation with respect to
a Site, the Owner of the Site shall be responsible for the timely and proper
performance of the obligation, notwithstanding any delegation of such
responsibility by lease, contract, or otherwise to another party.
1.6 PROPERTY. "Property" shall mean that certain real property subject to
the covenants, conditions and restrictions set forth herein, namely, that real
property described on Exhibit A attached hereto and incorporated herein.
1.7 SITE. "Site" shall mean a continuous area of land within the Property
which is owned of record by the same Owner, whether shown as one parcel on any
recorded map or as a combination of parcels or of portions thereof.
ARTICLE II
REGULATION OF USES
2.1 PERMITTED USES. Unless otherwise specifically prohibited herein, or by
applicable law, any business/industrial use will be permissible if it does not
constitute a nuisance to adjacent Sites. Permitted uses will include, but not be
limited to, manufacturing, warehousing, distribution, cartage, processing,
storage, wholesaling, office, laboratory, professional and research and
development.
2.2 NUISANCE. No noxious or offensive activity shall be carried on nor
shall anything be done on any Site which may be or become an annoyance or
nuisance to the Owners or occupants of other Sites, or which will be offensive
to the Owners or occupants of other Sites by reason of odor, fumes, discharge of
any chemical or industrial waste above or below ground, dust, dirt, fly-ash,
smoke, noise, glare or which will be hazardous by reason of danger of fire or
explosion or any other hazard.
D-2
2.3 RIGHT OF ENTRY. During reasonable hours and subject to reasonable,
security requirements, Dec1arant or its authorized representative shall have the
right to enter upon and inspect any Building and/or Site and the Improvements
thereon for the purpose of ascertaining whether or not the provisions of this
Declaration have been or are being complied with and shall not be deemed guilty
of trespass by reason of such entry.
ARTICLE III
REGULATION OF IMPROVEMENTS
3.1 MINIMUM SETBACK LINES.
(a) General. No Improvement and no part thereof shall be placed on any
Site closer to a property line than herein provided. The following
Improvements are specifically excluded from these setback provisions:
(1) Roof overhang, subject to the specific approval of Declarant
in writing.
(2) Steps and walks.
(3) Paving and associated curbing, except that vehicle parking
areas shall not be permitted within ten (10) feet of the street
property line or lines.
(4) Fences, except that no fence shall be placed within the
street setback area unless specific approval is given by Declarant in
writing.
(5) Landscaping.
(6) Planters, not to exceed three (3) feet in height.
(7) Railroad spur tracks, switches and bumpers, provided that the
location of such tracks, switches and bumpers is specifically approved
by Declarant in writing.
(8) Displays identifying the Owner, lessee or occupant, subject
to the specific approval of Declarant in writing.
(b) Setback from interior property lines. No setback is established
from a rear or side interior property line. The interior lot lines for a
corner lot shall be considered to have a real property line.
(c) SETBACK STREET PROPERTY LINES. The setback line is established as
twenty (20) feet from property line on all streets on the property.
3.2 COMPLETION OF CONSTRUCTION. After commencement of construction of any
Improvement, the Owner shall diligently prosecute the work thereon to the end
that the Improvement shall not remain in a partly finished condition any longer
than reasonably necessary for the completion thereof.
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3.3 No excavation shall be made except in connection with construction of
an Improvement, and upon completion thereof, exposed openings shall be
backfilled and disturbed ground shall be graded and leveled.
3.4 LANDSCAPING.
(a) Every Site on which a Building shall have been placed shall be
landscaped according to plans approved as specified herein and maintained
thereafter in a lightly and well-kept condition.
(b) An Owner, Lessee or occupant shall landscape and maintain unpaved
areas between the property lines and the setback tines.
(c) An Owner, Lessee or occupant shall provide hose bibs and
maintenance facilities in the vicinity of the landscaped areas.
(d) Landscape as approved by Declarant shall be installed within
ninety (90) days of occupancy or completion of the Building, whichever
occurs first.
3.5 SITE MAINTENANCE. All Improvements on each Site including, without
limitation, all walks, driveways, fences, parking areas, landscaping and the
exterior of all structures on each Site, shall be maintained free of titter and
debris and in good condition, order and repair. Landscaping shall be kept in
thriving condition, weed-free and neatly trimmed. All undeveloped Sites shall be
kept clean, mowed and in a condition so as not to be a dust or weed problem.
3.6 SIGNS AND LIGHTING. No signs or displays shall be created on any Site,
other than the following:
(a) Signs identifying the name, building and business of any person or
firm occupying a Site, the size, design and color of which has been
specifically approved by Declarant in writing; and
(b) Offering a Site for sale or lease if Declarant has specifically
approved said signs in writing.
All signs and displays shall be located below the roof line of the
building and shall comply with all applicable laws and ordinances.
Lighting shall be restricted to parking and security lights, fire
lighting and low-level sign illumination and floodlighting of buildings or
landscaping. All lighting shall be shielded and contained within property
lines.
3.7 PARKING AREAS. Adequate parking on a Site shall be provided to
accommodate alt parking needs for employees, visitors and company vehicles.
There shall also be adequate areas provided for truck loading and unloading. The
intent of this provision is to eliminate the need for any on-street parking. If
parking or loading requirements increase as a result of a change in use or
number of employees, additional off-street parking shall be provided to satisfy
the intent of this section.
D-4
3.8 BUILDING REGULATIONS. Any building erected on a Site shall conform to
the following construction practices:
(a) Exterior walls of sheet or corrugated iron, steel, aluminum
or asbestos will be permitted only upon specific approval in writing
by Declarant.
(b) Exterior walls shall be painted or suitably treated in a
manner acceptable to Declarant.
ARTICLE IV
APPROVAL OF PLANS
4.1 No Improvement shall be erected, placed, altered, maintained or
permitted to remain on any land subject to these restrictions until plans and
specifications showing plot layout, including parking and al) exterior
elevations, with materials and colors, have been submitted to and approved in
writing by Declarant. Said approval shall be in addition to any approvals and/or
permits required by the City of Menlo Park or any other legal entity having
jurisdiction. Such plans and specifications shall be submitted in writing over
the signature of the Owner of Lessee of the Site or his authorized agent.
4.2 Approval shall be based, among other things, on adequacy of Site
dimensions, adequacy of structural design, conformity and harmony of external
design with neighboring Improvements, effect of location and use of Improvements
on neighboring Sites; proper facing of main elevation with respect to nearby
streets; and conformity of the plans and specifications to the purpose and
general plan and intent of these restrictions. Declarant shall not arbitrarily
or unreasonably withhold its approval of such plans and specifications.
4.3 If Declarant fails either to approve or to disapprove such plans and
specifications within thirty (30) days after the same have been submitted to it,
it shall be conclusively presumed that Declarant has approved said plans and
specifications, subject, however, to the restrictions contained in ARTICLE III
hereof.
4.4 Notwithstanding anything to the contrary herein contained, after the
expiration of one year from the date of issuance of a building permit by
municipal or other governmental authority for any Improvement, said Improvement
shall, in favor of purchasers and encumbrancers in good faith and for value, be
deemed to be in compliance with all provisions of this ARTICLE IV, unless actual
notice of such non-compliance or non-completion executed by Declarant shall
appear of record in the office of the County Recorder of San Mateo County,
California, or unless legal proceedings shall have been instituted to enforce
compliance or completion.
4.5 FEE. An architectural review fee shall be paid to Declarant at the time
plans are submitted for approval based upon the following schedule:
(a) When the plans submitted are prepared by an architect
licensed to practice in the State of California, the architectural
review fee shall be $100.00.
(b) In all other cases, the architectural review fee shall be
$200.00.
D-5
ARTICLE V
DURATION AND MODIFICATION AND REPEAL
5.1 TERM. This Declaration, every provision hereof and every covenant,
conditions and restriction contained herein shall continue in full force and
effect for a period of sixty (60) years from the date hereof.
5.2 TERMINATION AND MODIFICATION. This Declaration or any provisions
thereof or any covenant, condition or restriction contained herein may be
terminated, extended, modified or amended as to the whole of said property or
any portion thereof, with the written consent of the Owners of sixty-five
percent (65%) in area of the Property; provided that so long as Declarant owns
at least twenty percent (20%) in area of the Property, no such termination,
extension, modification or amendment shall be effective without Declarant's
written approval. No termination, extension, modification or amendment hereof
shall be effective until a written instrument embodying the same has been
executed and recorded in the Official Records of San Mateo County.
ARTICLE VI
ENFORCEMENT
6.1 ABATEMENT AND SUIT. Violation or breach of any restriction herein
contained shall give to Declarant the right to enter upon the Property upon or
as to which said violation or breach exists and summarily to abate and remove at
the expense of the Owner, Lessee or occupant thereof any structure, thing or
condition that may be or exist thereon contrary to the intent and meaning of the
provisions hereof; or to prosecute a proceeding at law or in equity against the
person or persons who have violated or are attempting to violate any of these
restrictions to enjoin or prevent them from doing so, to cause said violation to
be remedied or to recover damages for said violation. In addition, every Owner
of a Site shall have the right, in the event of violation or breach of any
restriction herein contained, to prosecute a proceeding at law or in equity
against the person or persons who have violated or are attempting to violate any
of these restrictions to enjoin or to recover damages for said violation. All
remedies provided herein or at law or in equity shall be cumulative and not
exclusive.
6.2 DEEMED TO CONSTITUTE A NUISANCE. The result of every action or omission
whereby any restriction herein contained is violated in whole or in part is
hereby declared to be and to constitute a nuisance. Every remedy allowed by law
or equity against an Owner, either public or private, shall be applicable
against every such result and may be exercised by Declarant or by any Owner of
property subject hereto. Any costs or expenses paid or incurred by Declarant or
an Owner (collectively referred to as "Declarant" in this Section 6.2) in
abating such nuisance or prosecuting any such remedy (including all reasonable
attorneys' fees and costs of collection), together with interest thereon at the
rate of ten percent (10%) per annum, shall be a charge against the Site on which
the nuisance has occurred or is occurring, shall be a continuing lien thereon
until paid, and shall also be the personal obligation of the Owner of such Site
when such charges became due and who committed such breach or violation. In
addition to any other rights or remedies hereunder, Declarant may deliver to the
Owner of the Site on which the nuisance has occurred or is occurring and record
with the San Mateo County Recorder a certificate of notice of claim of lien. If
the violation recited in such lien claim has not been cured to Declarant's
satisfaction and any recited amounts so charged have not been paid within thirty
(30) days thereafter, Declarant or its authorized representative may foreclose
such lien by a sale conducted pursuant to Sections 2924, 2924b and
D-6
2924c of the California Civil Code, as amended from time to time, or other
statues applicable to the exercise of powers of sales in mortgages or Deeds of
Trust, or in any other manner permitted by law. Declarant, through its
authorized representatives, may bid on and acquire any land subject to such lien
at any such foreclosure sale. If the violations recited in such lien claim are
timely cured and any recited amounts timely paid as provided above, Declarant
shall forthwith record an appropriate release of such lien at Declarant's sole
expense.
6.3 ATTORNEYS' FEES. In any legal or equitable proceeding for the
enforcement or to restrain the violation of this Declaration or any provision
hereof, the losing party or parties shall pay the attorneys' fees of the
prevailing party or parties, in such amount as may be fixed by the court in such
proceedings.
6.4 FAILURE TO ENFORCE NOT A WAIVER OF RIGHTS. The failure of Declarant or
any Owner to enforce any restriction herein contained shall in no event be
deemed to be a waiver of the right to do so thereafter nor of the right to
enforce any other restriction.
ARTICLE VII
MISCELLANEOUS PROVISIONS
7.1 ASSIGNMENT OF DECLARANT'S RIGHTS AND DUTIES. Declarant may assign any
and ail of its rights, powers, reservations and obligations hereunder to any
person, corporation or association. To be effective, any such assignments must
be accepted in writing by the assignee and the acceptance must be recorded in
the Official Records of San Mateo County. To the extent of the assignment, the
assignee shall have the same rights, obligations, duties and powers and be
subject to the same obligations and duties as given to and assumed by Declarant
herein. The term Declarant as used herein includes ail such assignees and their
heirs, successors and assigns. Declarant may also resign as Declarant by
recording a written notice of resignation in the Official Records of San Mateo
County and mailing a copy thereof to each then Owner. The resignation shall be
effective on the date it is recorded and Declarant shall thereafter have no
further rights, powers, reservations, obligation or liabilities hereunder. If at
any time Declarant either resigns or ceases to exist without making an
assignment of its authority as Declarant, a successor Declarant may be appointed
in the same manner as this Declaration may be terminated, extended, modified or
amended under Section 2 of ARTICLE IV.
7.2 CONSTRUCTIVE NOTICE AND ACCEPTANCE. Every person or other entity who
now or hereafter owns or acquires any right, title or interest in or to any
portion of the Property is, and shall be conclusively deemed to have consented
and agreed to every covenant, condition and restriction contained herein,
whether or not any reference to this Declaration is contained in the instrument
by which such person or entity acquired an interest in said property.
7.3 WAIVER. Neither Declarant nor its successors or assigns shall be liable
to any Owner, Lessee, licensee or occupant of land subject to his Declarant by
reason of any mistake in judgment, negligence, nonfeasance, action or inaction
and/or for the enforcement or failure to enforce any provision of this
Declaration. Every Owner, Lessee, licensee or occupant of any of said property
by acquiring his interest therein agrees that he will not bring any action or
suit against Declarant to recover any damages or to seek equitable relief
because of any mistake in judgment, negligence, nonfeasance, action or inaction
and/or the enforcement or failure to enforce any provision of this Declaration.
D-7
7.4 MUTUALITY, RECIPROCITY, RUNS WITH LAND. All covenants, conditions,
restrictions and agreements contained herein are made for the direct, mutual and
reciprocal benefit of each and every part and parcel of the property now or
hereafter made subject to this Declaration, shall create reciprocal rights and
obligations between the respective Owners of all parcels and privity of contract
and estate between all grantees of said parcels, their heirs, successors and
assigns, and shall, as to the Owner of each parcel, his heirs, successors and
assigns, operate as covenants running with the land for the benefit of alt other
parcels.
7.5 RIGHTS OF BENEFICIARIES. No breach of the restrictions and other
provisions contained herein shall defeat or render invalid the lien of any Deed
of Trust now or hereafter executed upon land subject to these restrictions;
provided, however, that if any portion of said property is sold under a
foreclosure of any mortgage or under the provisions of any deed of trust, any
purchaser at such sale and his successors and assigns shall hold any and all
property so purchased subject to all of the restrictions and other provisions of
this Declaration.
7.6 PARAGRAPH HEADING. Paragraph headings, where used herein, are inserted
for convenience only and are not intended to be a part of this Declaration or in
any way to define, limit or describe the scope and intent to the particular
paragraphs to which they refer.
7.7 EFFECT OF INVALIDATION. If any provision of this Declaration is held to
be invalid by any court, the invalidity of such provision shall not affect the
validity of the remaining provisions hereof.
7.8 EXISTING IMPROVEMENTS. Improvements which are completely constructed on
the date this Declaration is recorded are deemed to satisfy all the requirements
hereof.
7.9 ESTOPPEL CERTIFICATE. At the request of an Owner, Declarant shall
supply to such Owner or any actual or potential encumbrancer or purchaser of a
Site a written certificate stating that there are no violations hereof, or if
there are any such violations, the nature of such violations. Such certificate
shall be delivered within ten (10) working days after such request by an Owner.
D-8
EXHIBIT E
HAZARDOUS MATERIALS DISCLOSURE CERTIFICATE
Your cooperation in this matter is appreciated. Initially, the information
provided by you in this Hazardous Materials Disclosure Certificate is necessary
for the Landlord (identified below) to evaluate and finalize a lease agreement
with you as Tenant- After a lease agreement is signed by you and the Landlord
(the "Lease Agreement"), on an annual basis in accordance with the provisions of
Section 29 of the signed Lease Agreement, you are to provide an update to the
information initially provided by you in this certificate. The information
contained in the initial Hazardous Materials Disclosure Certificate and each
annual certificate provided by you thereafter will be maintained in
confidentiality by Landlord subject to release and disclosure as required by (i)
any lenders and owners and their respective environmental consultants, (ii) any
prospective purchasers) of all or any portion of the property on which the
Premises are located, (iii) Landlord to defend itself or its lenders, partners
or representatives against any claim or demand, and (iv) any laws, rules,
regulations, orders, decrees, or ordinances, including, without limitation,
court orders or subpoenas. Any and all capitalized terms used herein, which are
not otherwise defined herein, shall have the same meaning ascribed to such term
in the signed Lease Agreement. Any questions regarding this certificate should
be directed to, and when completed, the certificate should be delivered to:
Landlord:
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c/o Legacy Partners Commercial, Inc.
101 Lincoln Centre Drive, Fourth Floor
Foster City, California 94404
Attn:
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Phone: (650) 571-2200
Name of (Prospective) Tenant:
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Mailing Address:
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Contact Person, Title and Telephone Number(s):
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Contact Person for Hazardous Waste Materials Management and Manifests and
Telephone Number(s):
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Address of (Prospective) Premises:
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Length of (Prospective) Initial Term:
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E-1
1. GENERAL INFORMATION:
Describe the initial proposed operations to take place in, on, or about the
Premises, including, without limitation, principal products processed,
manufactured or assembled services and activities to be provided or
otherwise conducted. Existing Tenants should describe any proposed changes
to on-going operations.
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2. USE, STORAGE AND DISPOSAL OF HAZARDOUS MATERIALS
2.1 Will any Hazardous Materials be used, generated toyed or disposed of
in, on or about the Premises? Existing Tenants should describe a
Hazardous Materials which continue to be used, generated, stored or
disposed of in, on or about the Premises.
Wastes Yes [ ] No [ ]
Chemical Products Yes [ ] No [ ]
Other Yes [ ] No [ ]
If Yes is marked, please explain:
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2.2 If Yes is marked in Section 2 1, attach a list of any Hazardous
Materials to be used, generated, stored or disposed of in, on or about
the Premises, including the applicable hazard class and an estimate of
the quantities of such Hazardous Materials at any given time;
estimated annual throughput; the proposed locations) and method of
storage (excluding nominal amounts of ordinary household cleaners and
janitorial supplies which are not regulated by any Environmental
Laws); and the proposed locations) and method of disposal for each
Hazardous Material, including, the estimated frequency, and the
proposed contractors or subcontractors. Existing Tenants should attach
a list setting forth the information requested above and such list
should include actual data from on-going operations and the
identification of any variations in such information from the prior
year's certificate.
3. STORAGE TANKS AND SUMPS
3.1 Is any above or below ground storage of gasoline, diesel, petroleum,
or other Hazardous Materials in tanks or sumps proposed in, on or
about the Premises? Existing Tenants should describe any such actual
or proposed activities.
Yes [ ] No [ ]
If yes, please explain:
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E-2
4. WASTE MANAGEMENT
4.1 Has your company been issued an EPA Hazardous Waste Generator I.D.
Number? Existing Tenants should describe any additional identification
numbers issued since the previous certificate.
Yes [ ] No [ ]
4.2 Has your company filed a biennial or quarterly reports as a hazardous
waste generator? Existing Tenants should describe any new reports
filed.
Yes [ ] No [ ]
If yes, attach a copy of the most recent report filed.
5. WASTEWATER TREATMENT AND DISCHARGE
5.1 Will your company discharge wastewater or other wastes to:
_____ storm drain? _____ sewer?
_____ surface water? _____ no wastewater or other wastes discharged.
Existing Tenants should indicate any actual discharges. If so,
describe the nature of any proposed or actual discharge(s).
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5.2 Will any such wastewater or waste be treated before discharge?
Yes [ ] No [ ]
If yes, describe the type of treatment proposed to conducted. Existing
Tenants should describe the actual treatment conducted.
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6. AIR DISCHARGES
6.1 Do you plan for any air filtration systems or stacks to be used in
your company's operations in, on or about the Premises that will
discharge into the air, and will such air emissions be monitored?
Existing Tenants should indicate whether or not there are any such sir
filtration systems or stacks in use in, on or about the Premises which
discharge into the air and whether such air emissions are being
monitored.
Yes [ ] No [ ]
If yes, please describe:
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E-3
6.2 Do you propose to operate any of the following types of equipment, or
any other equipment requiring an air emissions permit? Existing
Tenants should specify any such equipment being operated in, on or
about the Premises.
_____ Spray booth(s) _____ Incinerator(s)
_____ Dip tank(s) _____ Other (Please describe)
_____ Drying oven(s) _____ No Equipment Requiring Air Permits
If yes, please describe:
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7. HAZARDOUS MATERIALS DISCLOSURES
7.1 Has your company prepared or will it be required to prepare a
Hazardous Materials management plan ("Management Plan") pursuant to
Fire Department or other governmental or regulatory agencies'
requirements? Existing Tenants should, indicate whether or not a
Management Plan is required and has been prepared.
Yes [ ] No [ ]
If yes, attach a copy of the Management Plan. Existing Tenants should
attach a copy of any required updates to the Management Plan.
7.2 Are any of the Hazardous Materials, and in particular chemicals,
proposed to be used in your operations in, on or about the Premises
regulated under Proposition 65? Existing Tenants should indicate
whether or not there are any new Hazardous Materials being so used
which are regulated under Proposition 65.
Yes [ ] No [ ]
If yes, please explain:
----------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
8. ENFORCEMENT ACTIONS AND COMPLAINTS
8.1 With respect to Hazardous Materials or Environmental Laws, has your
company ever been subject to any agency enforcement actions,
administrative orders, or consent decrees or has your company received
requests for information, notice or demand letters, or any other
inquiries regarding its operations? Existing Tenants should indicate
whether or not any such actions, orders or decrees have been, or are
in the process of being, undertaken or if any such requests have been
received.
Yes [ ] No [ ]
If yes, describe the actions, orders or decrees and any continuing
compliance obligations imposed as a result of these actions, orders or
decrees and also describe any requests, notices or demands, and attach
a copy of all such documents. Existing
E-4
Tenants should describe and attach a copy of any new actions, orders,
decrees, requests, notices or demands not already delivered to
Landlord pursuant to the provisions of Section 29 of the signed Lease
Agreement.
----------------------------------------------------------------------
----------------------------------------------------------------------
8.2 Have there ever been, or are there now pending, any lawsuits against
your company regarding any environmental or health and safety
concerns?
Yes [ ] No [ ]
If yes, describe any such lawsuits and attach copies of the
complaint(s), cross-complaint(s), pleadings and all other documents
related thereto as requested by Landlord. Existing Tenants should
describe and attach a copy of any new complaint(s),
cross-complaint(s), pleadings and other related documents not already
delivered to Landlord pursuant to the provisions of Section 29 of the
signed Lease Agreement.
----------------------------------------------------------------------
----------------------------------------------------------------------
8.3 Have there been any problems or complaints from adjacent Tenants,
owners or other neighbors at your company's current facility with
regard to environmental or health and safety concerns? Existing
Tenants should indicate whether or not there have been any such
problems or complaints from adjacent Tenants, owners or other
neighbors at, about or near the Premises.
Yes [ ] No [ ]
If yes, please describe. Existing Tenants should describe any such
problems or complaints not already disclosed to Landlord under the
provisions of the signed Lease Agreement.
----------------------------------------------------------------------
----------------------------------------------------------------------
9. PERMITS AND LICENSES
9.1 Attach copies of all Hazardous Materials permits and licenses
including a Transporter Permit number issued to your company with
respect to its proposed operations in, on or about the Premises,
including, without limitation, any wastewater discharge permits, air
emissions permits, and use permits or approvals. Existing Tenants
should attach copies of any new permits and licenses as well as any
renewals of permits or licenses previously issued.
The undersigned hereby acknowledges and agrees that (A) this Hazardous Materials
Disclosure Certificate is being delivered in connection with, and as required
by, Landlord in connection with the evaluation and finalization of a Lease
Agreement and will be attached thereto as an exhibit; (B) that this Hazardous
Materials Disclosure Certificate is being delivered in accordance with, and as
required by, the provisions of Section 29 of the Lease Agreement; and (C) that
Tenant shall have and retain full and complete responsibility and liability with
respect to any of the Hazardous
E-5
Materials disclosed in the HazMat Certificate notwithstanding
Landlord's/Tenant's receipt and/or approval of such certificate. Tenant further
agrees that none of the following described acts or events shall be construed or
otherwise interpreted as either (a) excusing, diminishing or otherwise limiting
Tenant from the requirement to fully and faithfully perform its obligations
under the Lease with respect to Hazardous Materials, including, without
limitation, Tenant's indemnification of the Indemnitees and compliance with all
Environmental Laws, or (b) imposing upon Landlord, directly or indirectly, any
duty or liability with respect to any such Hazardous Materials, including,
without limitation, any duty on Landlord to investigate or otherwise verify the
accuracy of the representations and statements made therein or to ensure that
Tenant is in compliance with all Environmental Laws; (i) the delivery of such
certificate to Landlord and/or Landlord's acceptance of such certificate, (ii)
Landlord's review and approval of such certificate, (iii) Landlord's failure to
obtain such certificate from Tenant at any time, or (iv) Landlord's actual or
constructive knowledge of the types and quantities of Hazardous Materials being
used, stored, generated, f disposed of or transported on or about the Premises
by Tenant or Tenant's Representatives. Notwithstanding the foregoing or anything
to the contrary contained herein, the undersigned acknowledges and agrees that
Landlord and its partners, lenders and representatives may, and will, rely upon
the statements, representations, warranties, and certifications made herein and
the truthfulness thereof in entering into the Lease Agreement and the
continuance thereof throughout the term, and any renewals thereof, of the Lease
Agreement.
I (print name) ______________________________, acting with full authority to
bind the (proposed) Tenant and on behalf of the (proposed) Tenant, certify,
represent and warrant that the information contained in this certificate is true
and correct.
(Prospective) Tenant:
By:
--------------------------------------------------
Title:
--------------------------------------------------
Date:
--------------------------------------------------
E-6
EXHIBIT F
FIRST AMENDMENT TO LEASE AGREEMENT
CHANGE OF COMMENCEMENT DATE
This First Amendment to Lease Agreement (the "Amendment") is made and entered
into to be effective as of __________________, by and between
___________________________________ ("LANDLORD"), and
___________________________________ ("TENANT"), with reference to the following
facts:
RECITALS
A. Landlord and Tenant have entered into that certain Lease Agreement dated
__________________ (the "Lease"), for the leasing of certain premises containing
approximately __________ rentable square feet of space located at
______________________________, California (the "Premises") as such Premises are
more fully described in the Lease.
B. Landlord and Tenant wish to amend the Commencement Date of the Lease.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Landlord and Tenant hereby agree as follows:
1. RECITALS: Landlord and Tenant agree that the above recitals are true
and correct.
2. The Commencement Date of the Lease shall be __________________.
3. The fast day of the Term of the Lease (the "Expiration Date") shall be
__________________.
4. The dates on which the Base Rent will be adjusted are:
for the period __________________ to __________________ the monthly
Base Rent shall be $__________
for the period __________________ to __________________ the monthly
Base Rent shall be $__________; and
for the period __________________ to __________________ the monthly
Base Rent shall be $__________.
5. EFFECT OF AMENDMENT: Except as modified herein, the terms and
conditions of the Lease shall remain unmodified and continue in full
force and effect. In the event of any conflict between the terms and
conditions of the Lease and this Amendment, the terms and conditions
of this Amendment shall prevail.
6. DEFINITIONS: Unless otherwise defined in this Amendment, all terms not
defined in this Amendment shall have the meaning set forth in the
Lease.
7. AUTHORITY: Subject to the provisions of the Lease, this Amendment
shall be binding upon and inure to the benefit of the parties hereto,
their respective heirs, legal representatives, successors and assigns.
Each party hereto and the persons signing below warrant that the
person signing
F-1
below on such party's behalf is authorized to do so and to bind such
party to the terms of this Amendment.
8. The terms and provisions of the Lease are hereby incorporated in this
Amendment.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date and
year first above written.
[PROPERTY MANAGER: Please provide Tenant information and Word Processing will
complete the signature block]
F-2
EXHIBIT G
TENANT'S INITIAL HAZARDOUS MATERIALS DISCLOSURE CERTIFICATE
Your cooperation in this matter is appreciated. Initially, the information
provided by you in this Hazardous Materials Disclosure Certificate is necessary
for the Landlord (identified below) to evaluate and finalize a lease agreement
with you as Tenant. After a lease agreement is signed by you and the Landlord
(the "Lease Agreement"), on an annual basis in accordance with the provisions of
Section 29 of the signed Lease Agreement, you are to provide an update to the
information initially provided by you in this certificate. The information
contained in the initial Hazardous Materials Disclosure Certificate and each
annual certificate provided by you thereafter will be maintained in
confidentiality by Landlord subject to release and disclosure as required by (i)
any lenders and owners and their respective environmental consultants, (ii) any
prospective purchasers) of all or any portion of the property on which the
Premises are located, (iii) Landlord to defend itself or its lenders, partners
or representatives against any claim or demand, and (iv) any laws, rules,
regulations, orders, decrees, or ordinances, including, without limitation,
court orders or subpoenas. Any and all capitalized terms used herein, which are
not otherwise defined herein, shall have the same meaning ascribed to such term
in the signed Lease Agreement. Any questions regarding this certificate should
be directed to, and when completed, the certificate should be delivered to:
Landlord:
-----------------------------------------
c/o Legacy Partners Commercial, Inc.
101 Lincoln Centre Drive, Fourth Floor
Foster City, California 94404
Attn:
----------------------------------
Phone: (650) 571-2200
Name of (Prospective) Tenant:
---------------------------------
Mailing Address:
--------------------------------------------------------------
- --------------------------------------------------------------------------------
Contact Person, Title and Telephone Number(s):
--------------------------------
Contact Person for Hazardous Waste Materials Management and Manifests and
Telephone Number(s):
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Address of (Prospective) Premises:
--------------------------------------------
Length of (Prospective) Initial Term:
-----------------------------------------
- --------------------------------------------------------------------------------
G-1
1. GENERAL INFORMATION:
Describe the initial proposed operations to take place in, on, or about the
Premises, including, without limitation, principal products processed,
manufactured or assembled services and activities to be provided or
otherwise conducted. Existing Tenants should describe any proposed changes
to on-going operations.
---------------------------------------------------------------------------
---------------------------------------------------------------------------
2. USE, STORAGE AND DISPOSAL OF HAZARDOUS MATERIALS
2.1 Will any Hazardous Materials be used, generated toyed or disposed of
in, on or about the Premises? Existing Tenants should describe a
Hazardous Materials which continue to be used, generated, stored or
disposed of in, on or about the Premises.
Wastes Yes [ ] No[ ]
Chemical Products Yes [ ] No [ ]
Other Yes [ ] No [ ]
If Yes is marked, please explain:
-----------------------------
--------------------------------------------------------------
--------------------------------------------------------------
2.2 If Yes is marked in Section 2.1, attach a list of any
Hazardous Materials to be used, generated, stored or disposed
of in, on or about the Premises, including the applicable
hazard class and an estimate of the quantities of such
Hazardous Materials at any given time; estimated annual
throughput; the proposed locations) and method of storage
(excluding nominal amounts of ordinary household cleaners and
janitorial supplies which are not regulated by any
Environmental Laws); and the proposed locations) and method of
disposal for each Hazardous Material, including, the estimated
frequency, and the proposed contractors or subcontractors.
Existing Tenants should attach a list setting forth the
information requested above and such list should include
actual data from on-going operations and the identification of
any variations in such information from the prior year's
certificate.
3. STORAGE TANKS AND SUMPS
3.1 Is any above or below ground storage of gasoline, diesel,
petroleum, or other Hazardous Materials in tanks or sumps
proposed in, on or about the Premises? Existing Tenants should
describe any such actual or proposed activities.
Yes [ ] No [ ]
If yes, please explain:
---------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
G-2
4. WASTE MANAGEMENT
4.1 Has your company been issued an EPA Hazardous Waste Generator
I.D. Number? Existing Tenants should describe any additional
identification numbers issued since the previous certificate.
Yes [ ] No [ ]
4.2 Has your company filed a biennial or quarterly reports as a
hazardous waste generator? Existing Tenants should describe
any new reports filed.
Yes [ ] No [ ]
If yes, attach a copy of the most recent report filed.
5. WASTEWATER TREATMENT AND DISCHARGE
5.1 Will your company discharge wastewater or other wastes to:
_____ storm drain? _____ sewer?
_____ surface water? _____ no wastewater or other
wastes discharged.
--------------------------------------------------------------
--------------------------------------------------------------
Existing Tenants should indicate any actual discharges. If so,
describe the nature of any proposed or actual discharge(s).
5.2 Will any such wastewater or waste be treated before discharge?
Yes [ ] No [ ]
If yes, describe the type of treatment proposed to conducted.
Existing Tenants should describe the actual treatment
conducted.
--------------------------------------------------------------
--------------------------------------------------------------
6. AIR DISCHARGES
6.1 Do you plan for any air filtration systems or stacks to be
used in your company's operations in, on or about the Premises
that will discharge into the air, and will such air emissions
be monitored? Existing Tenants should indicate whether or not
there are any such sir filtration systems or stacks in use in,
on or about the Premises which discharge into the air and
whether such air emissions are being monitored.
Yes [ ] No [ ]
If yes, please describe:
--------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
G-3
6.2 Do you propose to operate any of the following types of
equipment, or any other equipment requiring an air emissions
permit? Existing Tenants should specify any such equipment
being operated in, on or about the Premises.
_____ Spray booth(s) _____ Incinerator(s)
_____ Dip tank(s) _____ Other (Please describe)
_____ Drying oven(s) _____ No Equipment Requiring
Air Permits
If yes, please describe:
--------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
7. HAZARDOUS MATERIALS DISCLOSURES
7.1 Has your company prepared or will it be required to prepare a
Hazardous Materials management plan ("Management Plan")
pursuant to Fire Department or other governmental or
regulatory agencies' requirements? Existing Tenants should,
indicate whether or not a Management Plan is required and has
been prepared.
Yes [ ] No [ ]
If yes, attach a copy of the Management Plan. Existing Tenants
should attach a copy of any required updates to the Management
Plan.
7.2 Are any of the Hazardous Materials, and in particular
chemicals, proposed to be used in your operations in, on or
about the Premises regulated under Proposition 65? Existing
Tenants should indicate whether or not there are any new
Hazardous Materials being so used which are regulated under
Proposition 65.
Yes [ ] No [ ]
If yes, please explain:
---------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
8. ENFORCEMENT ACTIONS AND COMPLAINTS
8.1 With respect to Hazardous Materials or Environmental Laws, has
your company ever been subject to any agency enforcement
actions, administrative orders, or consent decrees or has your
company received requests for information, notice or demand
letters, or any other inquiries regarding its operations?
Existing Tenants should indicate whether or not any such
actions, orders or decrees have been, or are in the process of
being, undertaken or if any such requests have been received.
Yes [ ] No [ ]
If yes, describe the actions, orders or decrees and any
continuing compliance obligations imposed as a result of these
actions, orders or decrees and also describe any requests,
notices or demands, and attach a copy of all such documents.
Existing
G-4
Tenants should describe and attach a copy of any new
actions, orders, decrees, requests, notices or demands not
already delivered to Landlord pursuant to the provisions of
Section 29 of the signed Lease Agreement.
--------------------------------------------------------------
--------------------------------------------------------------
8.2 Have there ever been, or are there now pending, any lawsuits
against your company regarding any environmental or health and
safety concerns?
Yes [ ] No [ ]
If yes, describe any such lawsuits and attach copies of the
complaint(s), cross-complaint(s), pleadings and all other
documents related thereto as requested by Landlord. Existing
Tenants should describe and attach a copy of any new
complaint(s), cross-complaint(s), pleadings and other related
documents not already delivered to Landlord pursuant to the
provisions of Section 29 of the signed Lease Agreement.
--------------------------------------------------------------
--------------------------------------------------------------
8.3 Have there been any problems or complaints from adjacent
Tenants, owners or other neighbors at your company's current
facility with regard to environmental or health and safety
concerns? Existing Tenants should indicate whether or not
there have been any such problems or complaints from adjacent
Tenants, owners or other neighbors at, about or near the
Premises.
Yes [ ] No [ ]
If yes, please describe. Existing Tenants should describe any
such problems or complaints not already disclosed to Landlord
under the provisions of the signed Lease Agreement.
--------------------------------------------------------------
--------------------------------------------------------------
9. PERMITS AND LICENSES
9.1 Attach copies of all Hazardous Materials permits and licenses
including a Transporter Permit number issued to your company
with respect to its proposed operations in, on or about the
Premises, including, without limitation, any wastewater
discharge permits, air emissions permits, and use permits or
approvals. Existing Tenants should attach copies of any new
permits and licenses as well as any renewals of permits or
licenses previously issued.
The undersigned hereby acknowledges and agrees that (A) this Hazardous Materials
Disclosure Certificate is being delivered in connection with, and as required
by, Landlord in connection with the evaluation and finalization of a Lease
Agreement and will be attached thereto as an exhibit; (B) that this Hazardous
Materials Disclosure Certificate is being delivered in accordance with, and as
required by, the provisions of Section 29 of the Lease Agreement; and (C) that
Tenant shall have and retain full and complete responsibility and liability with
respect to any of the Hazardous
G-5
Materials disclosed in the HazMat Certificate notwithstanding
Landlord's/Tenant's receipt and/or approval of such certificate. Tenant further
agrees that none of the following described acts or events shall be construed or
otherwise interpreted as either (a) excusing, diminishing or otherwise limiting
Tenant from the requirement to fully and faithfully perform its obligations
under the Lease with respect to Hazardous Materials, including, without
limitation, Tenant's indemnification of the Indemnitees and compliance with all
Environmental Laws, or (b) imposing upon Landlord, directly or indirectly, any
duty or liability with respect to any such Hazardous Materials, including,
without limitation, any duty on Landlord to investigate or otherwise verify the
accuracy of the representations and statements made therein or to ensure that
Tenant is in compliance with all Environmental Laws; (i) the delivery of such
certificate to Landlord and/or Landlord's acceptance of such certificate, (ii)
Landlord's review and approval of such certificate, (iii) Landlord's failure to
obtain such certificate from Tenant at any time, or (iv) Landlord's actual or
constructive knowledge of the types and quantities of Hazardous Materials being
used, stored, generated, f disposed of or transported on or about the Premises
by Tenant or Tenant's Representatives. Notwithstanding the foregoing or anything
to the contrary contained herein, the undersigned acknowledges and agrees that
Landlord and its partners, lenders and representatives may, and will, rely upon
the statements, representations, warranties, and certifications made herein and
the truthfulness thereof in entering into the Lease Agreement and the
continuance thereof throughout the term, and any renewals thereof, of the Lease
Agreement.
I (print name) ______________________________, acting with full authority to
bind the (proposed) Tenant and on behalf of the (proposed) Tenant, certify,
represent and warrant that the information contained in this certificate is true
and correct.
(Prospective) Tenant:
By:
--------------------------------------------------
Title:
--------------------------------------------------
Date:
--------------------------------------------------
G-6
EXHIBIT I
TENANT'S TRADE FIXTURES
I-1