MASTER LESSOR'S CONSENT TO SUBLEASE
1. North American Resort Properties, Inc., as landlord ("Master Lessor"),
hereby consents to that certain sublease ("Sublease") between Spectrian
Corporation, a Delaware corporation, as sublessor ("Sublessor"), and GPS
Management Services, Inc., a California corporation, as sublessee ("Sublessee"),
a copy of which Sublease is attached hereto as Exhibit "A" and incorporated
herein by this reference, concerning that certain real property comprised of an
approximately 40,000 square foot single story building located at 3900 Atherton
Road, Rocklin, California, which is currently leased by Master Lessor to
Sublessor pursuant to that certain lease dated December 19, 1997, as amended by
that certain First Amendment to Lease dated February 19, 1998 (collectively, the
"Master Lease").
2. Master Lessor hereby acknowledges receipt of a copy of the Sublease, and
consents to the terms and conditions of the Sublease. Master Lessor, Sublessor
and Sublessee each acknowledge and agree that Master Lessor is not a party to
the Sublease, and Master Lessor is not obligated to perform any term, provision,
covenant, condition or obligation under the Sublease.
3. Sublessor hereby acknowledges and agrees that neither its entry into the
Sublease, nor Master Lessor's consent thereto, shall in any manner or way
release, diminish, impair, affect or alter Sublessor's primary and direct
obligations to Master Lessor under the Master Lease.
4. Sublessor and Sublessee acknowledge and agree that the Sublease may not
be amended, extended, modified, renewed or cancelled in any manner or way
without the prior written consent of Master Lessor, which consent shall not be
unreasonably withheld and shall be granted or denied within ten (10) business
days after written request therefor; provided, however, that notwithstanding the
foregoing, Sublessor may cancel or terminate the Sublease without Master
Lessor's or Sublessee's consent in the event of a default by Sublessee under the
Sublease or in the event of a casualty or condemnation which would otherwise
give Sublessor termination rights under the Sublease.
5. From and after the receipt by Sublessee of any written notice from
Master Lessor alleging that an "event of default" (as defined in the Master
Lease) by Sublessor (as "Tenant" under the Master Lease) has occurred under the
Master Lease, and notwithstanding any contrary contention or subsequent
instruction by Sublessor, Sublessor hereby irrevocably authorizes and instructs
Sublessee to pay all rents due under the Sublease directly to Master Lessor (and
otherwise to attorn and perform its obligations under the Sublease directly to
Master Lessor). If Master Lessor provides written notice to Sublessee and
Sublessor that an "event of default" (as defined in the Master Lease) by
Sublessor (as "Tenant" under the Master Lease) has occurred under the Master
Lease and said alleged event of default continues for ten (10) business days
after written notice from Master Lessor to Sublessee of such event of default,
then Sublessee shall perform or pay, as appropriate, such obligation on behalf
of Sublessor and may deduct the costs incurred in performing or paying such
obligations from the Rents next due and
-1-
owing to Sublessor under the Sublease but no such payment shall relieve
Sublessee from any of its obligations to Master Lessor.
6. To the extent that Sublessee pays its rent under the Sublease, and/or
otherwise attorns directly, to Master Lessor pursuant to the foregoing paragraph
5, Sublessor hereby acknowledges and agrees that Sublessee's obligations under
the Sublease shall thereby be satisfied to the extent of Sublessee's direct
payment and/or performance to Master Lessor, and Master Lessor shall apply
and/or credit all Rent and other monetary payments Master Lessor receives from
Sublessee to any amounts owed by Sublessor as "Tenant" under the Master Lease.
To the extent that Sublessee pays its rent under the Sublease, and/or otherwise
attorns directly, to Master Lessor and/or performs Sublessor's obligations under
the Master Lease pursuant to the foregoing paragraph 5, Master Lessor hereby
acknowledges and agrees that Sublessor's obligations as "Tenant" under the
Master Lease shall thereby be satisfied to the extent of Sublessee's direct
payment and/or performance to Master Lessor. Notwithstanding any such receipt by
Master Lessor of such direct payment(s) and/or performance(s) by Sublessee,
however, Sublessor shall not be released from its liability under the Master
Lease, nor shall Master Lessor thereby become a party to the Sublease nor in any
way obligated thereunder. Except to the extent of the grossly negligent or
intentional misconduct of Master Lessor, or its agents or employees, Sublessor
agrees to release Sublessee and Master Lessor from any and all liabilities,
claims or causes of action arising out of Sublessee's direct payment(s) and/or
performance(s) to Master Lessor as provided herein.
7. In any action or dispute between the parties arising out of or in any
way connected with this Master Lessor's Consent, the prevailing party in such
action or dispute (whether by way of judgment, arbitration award, mediation,
settlement or otherwise, and whether or not suit is commenced), shall be
entitled to collect from the other party the prevailing party's costs and
expenses incurred in connection with such dispute, including, without
limitation, all litigation costs and reasonable attorneys' fees.
8. Notwithstanding any provision of the Sublease or the Master Lease to the
contrary, if the Master Lease terminates for any reason (other than as a result
of (a) a default caused by Sublessee under the Sublease or (b) the exercise by
Master Lessor or the exercise by Sublessor, in its capacity as "Tenant" under
the Master Lease, of its rights to terminate because of eminent domain and/or
damage and destruction), the Sublease shall be automatically deemed terminated,
but the Master Lessor shall recognize the Sublease as a direct Lease between
Master Lessor and Sublessee except that to the extent any provision of the
Sublease is less favorable to Master Lessor than the provision of the Master
Lease, the provision of the Master Lease shall be deemed incorporated into the
Sublease and supersede any such contrary or inconsistent provision.
9. Notwithstanding anything to the contrary in the Master Lease, if
Sublessee requests the consent of Sublessor and Master Lessor to install or
construct any alterations or improvements in the Subleased Premises, Master
Lessor shall notify Sublessee within twenty (20) days after Master Lessor
receives Sublessee's request for consent (provided, Sublessee's notice contains
all required information relating to the proposed alterations and improvements
as
-2-
required under the Master Lease), as to whether any such alterations or
improvements will need to be removed from the Subleased Premises by Sublessee on
or prior to the Expiration Date or any sooner termination of this Sublease.
Master Lessor hereby agrees that both Sublessor and Sublessee shall be entitled
to rely on Master Lessor's notice with respect thereto.
10. Notwithstanding anything to the contrary in the Sublease or Section 21
of the Master Lease:
(a) Sublessee shall have the right, without Master Lessor's consent,
to assign the Sublease or sublet the Subleased Premises to any entity which
controls or is under common control with Sublessee (each a ?Gap Affiliate?)
provided that (i) The Gap, Inc. owns 100% of the Gap Affiliate, (ii) Sublessee
delivers written notice thereof to Master Lessor at least thirty (30) days prior
to the proposed transfer with all documentation necessary to determine whether
the transfer meets the requirements of this subsection 10(a), certified by
Sublessee, (iii) the Gap Affiliate has a net worth of at least Ten Million
Dollars ($10,000,000), (iv) in the event of assignment(s), the assignor and
assignee shall be and remain jointly and severally liable to Master Lessor for
any and all obligations of Sublessee, and (v) Sublessee otherwise complies with
Section 21 of the Master Lease, including without limitation subsection 21.B
thereof, as incorporated into the Sublease;
(b) if GPS Management Services, Inc., the original Sublessee, assigns
this Sublease to a Gap Affiliate, a subsequent change in control of such Gap
Affiliate shall not be deemed a Transfer under the Master Lease, provided that
(i) The Gap, Inc. still owns 100% of the ?Sublessee? under the Sublease, (ii)
the Sublessee delivers written notice thereof to Master Lessor at least thirty
(30) days prior to the proposed transfer with all documentation necessary to
determine whether the transfer meets the requirements of this subsection 10(b),
certified by Sublessee, (iii) the Gap Affiliate has a net worth of at least Ten
Million Dollars ($10,000,000), and (iv) Sublessee otherwise complies with
Section 21 of the Master Lease, including without limitation subsection 21.B
thereof, as incorporated into the Sublease;
(c) nothing herein shall be deemed to prohibit, or require Master
Lessor's consent to, the sale of Sublessee?s stock publicly over a recognized
securities exchange or over-the-counter market;
(d) occupancy of portions of the Subleased Premises (but not the
entire Subleased Premises) from time to time by one or more Gap Affiliates that
are wholly-owned by The Gap, Inc. shall not be deemed a Transfer under the
Master Lease; provided that (i) Sublessee delivers written notice thereof to
Master Lessor at least thirty (30) days prior to the proposed transfer with all
documentation necessary to determine whether the transfer meets the requirements
of this subsection 10(d), certified by Sublessee and (ii) Sublessee otherwise
complies with Section 21 of the Master Lease, including without limitation,
subsection 21.B thereof, as incorporated into the Sublease; and
(e) Sublessee may allow any person or company (i) which is a client or
customer of GPS Management Services, Inc. or (ii) which is providing services to
GPS
-3-
Management Services, Inc. and/or The Gap, Inc., to occupy certain portions of
the Subleased Premises (but not the entire Subleased Premises) without such
occupancy being deemed a Transfer under the Master Lease and without Master
Lessor's consent; provided that (aa) Sublessee otherwise complies with Section
21 of the Master Lease, including without limitation, subsection 21.B thereof,
as incorporated into the Sublease; and (bb) Sublessee shall be required, within
thirty (30) days after request from Master Lessor, to deliver to Master Lessor a
written list of the current occupants of the Subleased Premises, which list
shall describe the relationship of such occupants to Sublessee.
(f) Master Lessor hereby agrees that Master Lessor's consent to the
foregoing provisions of this Section 10 shall constitute Master Lessor's consent
thereto under the Master Lease and Sublessor shall not be required to obtain
Master Lessor's consent thereto under the Master Lease.
11. Notwithstanding anything to the contrary in the Sublease, Sublessee
shall indemnify, defend, protect and hold Master Lessor harmless from and
against any and all claims, actions, suits, proceedings, judgements, losses,
costs, personal injuries, damages, liabilities, attorneys' fees and expenses of
every type and nature, arising from or in any way related to (a) the presence,
use or occupancy of the Subleased Premises or the Project by any Gap Affiliate
or occupant of all or any portion of the Subleased Premises and their agents,
contractors, occupants, invitees, subtenants, assignees, or employees, or (b)
any act or omission of any Gap Affiliate or occupant of all or any portion of
the Subleased Premises and their agents, contractors, occupants, invitees,
subtenants, assignees, or employees; provided, however, that the foregoing
indemnity, defense and hold harmless obligations shall not apply to the extent
of Master Lessor's grossly negligent or intentional misconduct nor to the extent
of property damage covered by insurance carried by Master Lessor and paid for as
part of Basic Operating Costs.
-4-
12. Master Lessor's address for notices shall be North American Resort
Properties, Inc., 100 Bayview Circle, Suite 4500, Newport Beach, California
92660.
Dated: July 27, 1999.
"Master Lessor"
NORTH AMERICAN RESORT PROPERTIES, INC.
By /s/ ????
----------------------------------------
Its Vice President & Secretary
----------------------------------------
By
----------------------------------------
Its
----------------------------------------
"Sublessee"
GPS MANAGEMENT SERVICES, INC.
By /s/ ????
----------------------------------------
Its Sr. Vice President, Real Estate
----------------------------------------
By
----------------------------------------
Its
----------------------------------------
"Sublessor"
SPECTRIAN CORPORATION
By /s/ Henry Montgomery
----------------------------------------
Its Chief Financial Officer
----------------------------------------
By
----------------------------------------
Its
----------------------------------------
-5-
SUBLEASE
THIS SUBLEASE (this "Sublease") is dated as of July ______, 1999 and is
made by and between Spectrian Corporation, a Delaware corporation ("Sublessor"),
and GPS Management Services, Inc., a California corporation ("Sublessee").
Sublessor and Sublessee hereby agree as follows:
1. Recitals: This Sublease is made with reference to the fact that
North American Resort Properties, Inc., the successor-in-interest to Stanford
Ranch I, LLC, as landlord ("Master Lessor"), and Sublessor, as tenant, entered
into that certain lease, dated as of December 19, 1997, as amended by that
certain First Amendment to Lease dated February 19, 1998 (collectively, the
"Master Lease"), with respect to those certain premises located at 3900 Atherton
Road, Rocklin, California (the "Premises"). A copy of the Master Lease is
attached hereto as Exhibit A. Capitalized terms used in this Sublease which are
not otherwise defined in this Sublease shall have the meaning set forth in the
Master Lease.
2. Premises: Sublessor hereby subleases to Sublessee, and Sublessee
hereby subleases from Sublessor, the Premises consisting of an approximately
40,000 square foot single story building located at 3900 Atherton Road, Rocklin,
California (hereinafter, the "Subleased Premises"). The Subleased Premises are
outlined in yellow on Exhibit B attached hereto.
3. Term:
A. Term. The term (the "Term") of this Sublease shall commence on
the date on which both of the following have occurred: (i) this Sublease has
been fully executed by both Sublessor and Sublessee, and (ii) Sublessor has
delivered the Subleased Premises to Sublessee in broom-clean condition with all
of Sublessor's personal property (if any) removed from the Subleased Premises
(the "Commencement Date"), and shall expire on June 28, 2003 (the "Expiration
Date"), unless this Sublease is sooner terminated pursuant to its terms or the
Master Lease is sooner terminated pursuant to its terms. Notwithstanding
anything to the contrary in this Sublease, Sublessor shall have no obligation to
deliver possession of the Subleased Premises to Sublessee until Master Lessor
has delivered to Sublessor its written consent to this Sublease in a form
reasonably acceptable to Sublessor. Notwithstanding anything to the contrary in
this Sublease, Sublessor shall not be required to make or complete the Minor
Repairs (as defined in Section 5 of this Sublease) prior to the Commencement
Date and Sublessor's failure to make or complete said Minor Repairs on or prior
to the Commencement Date shall not delay or extend the Commencement Date in any
way.
B. Delivery and Acceptance. If Sublessor fails to deliver
possession of the Subleased Premises to Sublessee in accordance with Paragraph
3.A hereof for any reason whatsoever, then this Sublease shall not be void or
voidable, nor shall Sublessor be liable to Sublessee for any loss or damage;
provided, however, that if the Subleased Premises are not delivered to Sublessee
by October 1, 1999, Sublessee shall have the right, at Sublessee's sole option.
to terminate this Sublease by delivery to Sublessor of a written notice thereof
within thirty (30) days after October 1, 1999 (the "Termination Notice"), which
termination shall be effective thirty (30) days after Sublessee's delivery of
the Termination Notice to Sublessor, unless within such thirty (30) day period
the Subleased Premises are delivered to Sublessee. In the event Sublessee elects
to terminate this Sublease pursuant to the foregoing sentence, Sublessee must
deliver to Sublessor the Termination Notice prior to the date the Subleased
Premises are delivered to Sublessee. By taking possession of the Subleased
Premises, Sublessee conclusively shall be deemed to have accepted the Subleased
Premises in its as-is, then-existing condition, without any representation or
warranty whatsoever of Sublessor with respect thereto.
C. No Option to Extend. The parties hereby acknowledge that the
expiration date of the Master Lease is June 29, 2003, and, notwithstanding
anything to the contrary in the Master Lease or this Sublease, Sublessee hereby
acknowledges and agrees that Sublessee has no option to extend the Term of this
Sublease.
4. Rent:
A. Base Rent. Commencing on the Commencement Date and continuing
throughout the Term, Sublessee shall pay to Sublessor base rent ("Base Rent")
for the Subleased Premises in monthly installments as follows:
Portion of Term Base Rent
Commencement
Date12/1999 $34,080.75 per month
01/2000 06/2001 $35,283.60 per month
07/2001 11/2002 $36,421.65 per month
12/2002 06/2003 $37,696.41 per month
Base Rent and Additional Rent (as defined in Paragraph 4.B of this
Sublease below) shall be paid at least three (3) business days prior to the
first (1st) day of each month during the Term of this Sublease. By way of
example only, if the next installment of Rent is due on August 1, 1999,
Sublessee would be required to deliver payment of the Rent to Sublessor by July
27, 1999. Base Rent and Additional Rent for any period during the Term hereof
which is for less than one (1) month of the Term shall be a pro rata portion of
the monthly installment due based on the actual number of days in such month.
Base Rent and Additional Rent shall be payable without notice or demand and
without any deduction, offset, or abatement (except as provided in this
Sublease), in lawful money of the United States of America. Base Rent and
Additional Rent shall be paid directly to Sublessor at Spectrian Corporation,
350 West Java Drive, Sunnyvale, California, 94089, Attention: Accounts
Receivable, or such other address as may be designated in writing by Sublessor.
Sublessee shall reference this Sublease and the address of the Subleased
Premises with each payment delivered to Sublessor.
2
B. Additional Rent. All monies other than Base Rent required to be
paid by Sublessee under this Sublease, including, without limitation, all
amounts payable by Sublessor in connection with the Master Lease or the
Subleased Premises (including, without limitation, all "Basic Operating Cost",
"Estimated Basic Operating Cost" and any "Basic Operating Cost Adjustment" under
Section 7 of the Master Lease), shall be deemed additional rent ("Additional
Rent"). Base Rent and Additional Rent shall sometimes be referred to herein
collectively as "Rent". Sublessor hereby acknowledges that "Tenant's
Proportionate Share" (as defined in the Master Lease) of Basic Operating Cost is
100% and that Sublessee shall be required to pay for all of the Basic Operating
Cost required to be paid by the "Tenant" under the Master Lease. Sublessee and
Sublessor agree, as a material part of the consideration given by Sublessee to
Sublessor for this Sublease, that Sublessee shall pay all costs, expenses,
taxes, insurance, maintenance and other charges of every kind and nature arising
in connection with this Sublease, the Master Lease or the Subleased Premises,
such that Sublessor shall receive, as net consideration for this Sublease, all
Rent due under the Master Lease.
5. Repairs: The parties acknowledge and agree that Sublessee is
subleasing the Subleased Premises on an "as is" basis (except for those minor
repairs ("Minor Repairs") to be made to the Subleased Premises, a comprehensive
list of which are attached hereto as Exhibit C, which Minor Repairs Sublessor
shall, or cause Master Lessor to, repair as soon as practicable following the
Commencement Date), and that Sublessor has made no representations or
warranties, express or implied, whatsoever, with respect to the Subleased
Premises or the Project. Sublessee acknowledges that it has inspected the
Subleased Premises and accepts the Subleased Premises in its existing "as is"
condition as suitable for the purposes for which the Subleased Premises are to
be leased. Sublessor shall have no obligation whatsoever to make or pay the cost
of any alterations, improvements or repairs to the Subleased Premises,
including, without limitation, any improvement or repair required to comply with
any law, regulation, building code or ordinance (including the Americans with
Disabilities Act of 1990). Sublessor agrees that Sublessee shall be entitled to
receive all services and repairs that Master Lessor is required to provide to
the "Tenant" under the Master Lease to the extent such obligations of the Master
Lessor are incorporated herein, provided, however, that Sublessee shall look
solely to Master Lessor for performance of any services and/or repairs required
to be performed by Master Lessor under the terms of the Master Lease (including,
without limitation, Master Lessor's obligations under Sections 7, 10, 23 and 24
of the Master Lease and Master Lessor's obligation to comply with laws) and
Sublessee hereby agrees that Sublessor's only obligations with respect thereto
shall be to (i) request performance of the same in writing from Master Lessor
promptly after being requested to do so by Sublessee, and (ii) use Sublessor's
commercially reasonable efforts (not including the payment of money, the
incurring of any liabilities, or the institution of any legal proceedings) to
obtain Master Lessor's performance. Sublessee expressly waives the provisions of
Section 1932, subsection 1, and Sections 1941 and 1942 of the Civil Code of
California and all rights to make repairs at the expense of Sublessor as
provided in Section 1942 of said Civil Code.
3
6. Assignment and Subletting:
A. Sublessee may not assign this Sublease, sublet the Subleased
Premises, transfer any interest of Sublessee therein or permit any use of the
Subleased Premises by any other person or entity (collectively, "Transfer"),
without the prior written consent of Sublessor (which shall not be unreasonably
withheld) and Master Lessor. A consent to one Transfer shall not be deemed to be
a consent to any subsequent Transfer. Any Transfer without such consent shall be
void. Sublessor's waiver or consent to any assignment or subletting shall be
ineffective unless set forth in writing, and Sublessee shall not be relieved
from any of its obligations under this Sublease unless the written consent
expressly so provides. Any Transfer shall be subject to the terms of Section 21
of the Master Lease.
B. Provided Master Lessor consents in writing to the following,
then notwithstanding anything to the contrary in this Sublease or Section 21 of
the Master Lease:
(i) Sublessee shall have the right, without Sublessor's
consent, to assign this Sublease or sublet the Subleased Premises to any entity
which controls or is under common control with Sublessee (each a "Gap
Affiliate") provided that (a) The Gap, Inc. owns 100% of the Gap Affiliate, (b)
Sublessee delivers written notice thereof to Sublessor and Master Lessor at
least thirty (30) days prior to the proposed transfer with all documentation
necessary to determine whether the transfer meets the requirements of this
subsection 6.B(ii), certified by Sublessee and (c) Sublessee otherwise complies
with Section 21 of the Master Lease, including without limitation subsection 21
.B thereof, as incorporated into this Sublease;
(ii) if GPS Management Services, Inc., the original Sublessee,
assigns this Sublease to a Gap Affiliate, a subsequent change in control of such
Gap Affiliate shall not be deemed a Transfer hereunder, provided that (a) The
Gap, Inc. still owns 100% of the "Sublessee" under this Sublease, (b) the
Sublessee delivers written notice thereof to Master Lessor and Sublessor at
least thirty (30) days prior to the proposed transfer with all documentation
necessary to determine whether the transfer meets the requirements of this
subsection 6.B(i), certified by Sublessee and (c) Sublessee otherwise complies
with Section 21 of the Master Lease, including without limitation subsection
21.B thereof, as incorporated into this Sublease;
(iii) nothing herein shall be deemed to prohibit, or require
Sublessor's consent to, the sale of Sublessee's stock publicly over a recognized
securities exchange or over-the-counter market;
(iv) occupancy of portions of the Subleased Premises (but not
the entire Subleased Premises) from time to time by one or more Gap Affiliates
that are wholly-owned by The Gap, Inc. shall not be deemed a Transfer under this
Sublease; provided that (a) Sublessee delivers written notice thereof to
Sublessor and Master Lessor at least thirty (30) days prior to the proposed
transfer with all documentation necessary to determine whether the transfer
meets the requirements of this subsection 6.B(iv), certified by Sublessee and
(b) Sublessee otherwise complies with Section 21 of the Master Lease, including
without limitation, subsection 21.B thereof, as incorporated into this Sublease;
and
4
(v) Sublessee may allow any person or company (a) which is a
client or customer of GPS Management Services, Inc. or (b) which is providing
services to GPS Management Services, Inc. and/or The Gap, Inc., to occupy
certain portions of the Subleased Premises (but not the entire Subleased
Premises) without such occupancy being deemed a Transfer and without Sublessor's
consent; provided that (i) Sublessee otherwise complies with Section 21 of the
Master Lease, including without limitation, subsection 21.B thereof, as
incorporated into this Sublease; and (ii) Sublessee shall be required, within
thirty (30) days after request from Sublessor, to deliver to Sublessor a written
list of the current occupants of the Subleased Premises, which list shall
describe the relationship of such occupants to Sublessee.
C. Notwithstanding anything to the contrary in this Sublease,
Sublessee shall indemnify, defend, protect and hold Sublessor and Master Lessor
harmless from and against any and all claims, actions, suits, proceedings,
judgements, losses, costs, personal injuries, damages, liabilities, attorneys'
fees and expenses of every type and nature, arising from or in any way related
to (i) the presence, use or occupancy of the Subleased Premises or the Project
by any Gap Affiliate or occupant of all or any portion of the Subleased Premises
and their agents, contractors, occupants, invitees, subtenants, assignees, or
employees or (ii) any act or omission of any Gap Affiliate or occupant of all or
any portion of the Subleased Premises and their agents, contractors, occupants,
invitees, subtenants, assignees, or employees.
D. Notwithstanding anything to the contrary in this Sublease, the
original Sublessee under this Sublease and any assignee of Sublessee permitted
under this Sublease shall be and remain jointly and severally liable under this
Sublease.
7. Use:
A. Sublessee may use the Subleased Premises only for the Permitted
Use as defined in the Master Lease. Sublessee shall not use, store, transport or
dispose of any Hazardous Materials in, on, under or about the Subleased Premises
or the Project except that Sublessee may use small quantities of Hazardous
Materials that are customarily used for general business office purposes
provided that the use, storage, handling and disposal thereof is in strict
compliance with all applicable Laws. Sublessee shall indemnify, defend with.
counsel reasonably acceptable to Sublessor and hold Sublessor harmiess from and
against any and all claims, actions, suits, proceedings, judgements, losses,
costs, personal injuries, damages, liabilities, deficiencies, fines, penalties,
attorneys' fees, consultants' fees, investigations, detoxifications,
remediations, removals, and expenses of every type and nature, resulting from or
caused by the use, storage, transportation, release, disposal, discharge or
emission of Hazardous Materials in, on, under or about the Subleased Premises or
the Project during the Term of this Sublease by Sublessee or its agents,
contractors, occupants, invitees, subtenants, assignees, or employees. For
purposes of this Sublease, the term "Hazardous Materials" shall have the meaning
set forth in the Master Lease
B. Sublessee shall not do or permit anything to be done in or about
the Subleased Premises which would (i) injure the Subleased Premises or Project;
or (ii) vibrate, shake, overload, or impair the efficient operation of the
Subleased Premises or the sprinkler systems, heating, ventilating or air
conditioning equipment, or utilities systems located therein. Sublessee shall
not store any materials, supplies, finished or unfinished products or articles
of any nature outside of the Subleased
5
Premises. Sublessee shall comply with all reasonable rules and regulations
promulgated from time to time by Sublessor and Master Lessor.
8. Effect of Conveyance: As used in this Sublease, the term "Sublessor"
means the holder of the Tenant's interest under the Master Lease. In the event
of any assignment or transfer of the Tenants s interest under the Master Lease,
which assignment or transfer may occur at any time during the Term hereof in
Sublessor's sole discretion, Sublessor shall, on and after the date of transfer,
be and hereby is entirely relieved of all covenants and obligations of Sublessor
hereunder, and it shall be deemed and construed, without further agreement
between the parties, that any transferee has assumed and shall carry out all
covenants and obligations on and after the date of transfer to be performed by
Sublessor under this Sublease.
9. Improvements: No alteration or improvements shall be made to the
Subleased Premises, except in accordance with the Master Lease, and with the
prior written consent of both Sublessor (which consent shall not be unreasonably
withheld, conditioned or delayed) and Master Lessor. If Sublessee requests the
consent of Sublessor and Master Lessor to install or construct any alterations
or improvements in the Subleased Premises, Sublessor shall notify Sublessee
within twenty (20) days after Sublessor receives Sublessee's request for consent
(or such longer period of time required in order to obtain Master Lessor's
directions with respect thereto) as to whether any such alterations or
improvements will need to be removed from the Subleased Premises by Sublessee on
or prior to the Expiration Date or any sooner termination of this Sublease.
10. Janitorial Services: Sublessee hereby acknowledges that neither
Master Lessor nor Sublessor are required to provide any janitorial services to
the Subleased Premises. Accordingly, Sublessee shall pay for, and contract
directly with, a janitorial service to provide janitorial services to the
Subleased Premises.
11. Interruption: Except as otherwise set forth in this Sublease,
Sublessor shall not be liable to Sublessee, nor shall Sublessee be entitled to
terminate this Sublease or to abate Rent for any of the following: (i) failure
or interruption of any utility system or service; (ii) failure of Master Lessor
to maintain the Subleased Premises as may be required under the Master Lease; or
(iii) penetration of water into or onto any portion of the Subleased Premises.
The obligations of Sublessor shall not constitute the personal obligations of
the officers, directors, trustees, partners, joint venturers, members, owners,
stockholders or other principals or representatives of the business entity.
12. Insurance: Sublessee shall obtain and keep in full force and
effect, at Sublessee's sole cost and expense, during the Term the insurance
required to be carried by the "Tenant" under the Master Lease. Sublessee shall
include Sublessor and Master Lessor as an additional insured in any policy of
insurance carried by Sublessee in connection with this Sublease and shall
provide Sublessor with certificates of insurance upon Sublessor's request.
13. Default: Sublessee's failure to perform each of its obligations
under this Sublease (beyond any notice and cure period, if any; provided,
however, that Sublessor hereby acknowledges that, pursuant to Section 1 8.A of
this Sublease, Sublessee shall be entitled to the notice and cure period set
forth in Section 26.A(3) of the Master Lease with respect to non-monetary
defaults described therein, subject, however, to Section 18.A(v) of this
Sublease) shall be deemed a material
6
default under this Sublease. In addition, Sublessee shall be in material default
of its obligations under this Sublease if Sublessee is responsible for the
occurrence of any of the events of default set forth in Section 26 of the Master
Lease, incorporated herein, as modified by this Sublease, or if Sublessee
commits any other act or omission which constitutes a default under the Master
Lease and Sublessee fails to cure said default with any notice and cure period,
if any),
14. Remedies: In the event of any default by Sublessee, Sublessor shall
have all of the remedies provided to the "Landlord" in the Master Lease as if an
event of default had occurred thereunder and all other rights and remedies
otherwise available at law and in equity. Without limiting the generality of the
foregoing, Sublessor shall have the remedy described in California Civil Code
Section 1951.4 (Sublessor may continue the Subleas& in effect after Sublessee's
breach and abandonment and recover rent as it becomes due, if Sublessee has the
right to sublet or assign, subject only to reasonable limitations). Sublessor
may resort to its remedies cumulatively or in the alternative.
15. Surrender: On or before the Expiration Date or any sooner
termination of this Sublease, Sublessee shall remove all of its trade fixtures,
personal property and all alterations, or improvements installed or constructed
by Sublessee in the Subleased Premises which are required to be removed under
the terms of this Sublease or the Master Lease and shall surrender the Subleased
Premises to Sublessor in (a) good condition, order and repair, reasonable wear
and tear and damage by casualty excepted and (b) free of Hazardous Materials
used, stored, handled, manufactured, transported, released, discharged, emitted
or disposed of by Sublessee or it agents, employees, contractors, occupants,
subtenants, assignees,, or invitees. Sublessee shall repair any damage to the
Subleased Premises caused by such removal and in order to comply with this
Section 15 and the surrender provisions of the Master Lease incorporated herein.
If the Subleased Premises are not so surrendered, then Sublessee shall be liable
to Sublessor for all reasonable and documented costs incurred by Sublessor in
returning the Subleased Premises to the required condition, plus interest
thereon at the Applicable Interest Rate.
16. Broker: Sublessor and Sublessee each represent to the other that
they have dealt with no real estate brokers, finders, agents or salesmen other
than Cornish & Carey Commercial, representing Sublessor, and TM Commercial Real
Estate Services, representing Sublessee, in connection with this transaction.
Each party agrees to hold the other party harmiess from and against all claims
for brokerage commissions, finder's fees or other compensation due to any other
agent, broker, salesman or finder as a consequence of said party's actions or
dealings with such agent, broker, salesman, or finder.
17. Notices: Unless at least five (5) days' prior written notice of a
different address is given in the manner set forth in this paragraph, the
address of each party for all purposes connected with this Sublease shall be
that address set forth below their signatures at the end of this Sublease. All
notices, demands or communications in connection with this Sublease shall be (a)
personally delivered; or (b) properly addressed and (i) submitted to an
overnight courier service, charges prepaid, or (ii) deposited in the U.S. mail
(registered or certified, return receipt requested, and postage prepaid).
Notices shall be deemed delivered upon receipt, if personally delivered, the
next business day after being submitted to an overnight courier service and
three (3) business days after
7
deposit in the U.S. mail, if mailed as set forth above. All notices given to
Master Lessor under the Master Lease shall be considered received only when
delivered in accordance with the Master Lease.
18. Other Sublease Terms:
A. Incorporation By Reference. Except as set forth below and except
as otherwise provided in this Sublease, the terms and conditions of this
Sublease shall include all of the terms of the Master Lease and such terms are
incorporated into this Sublease as if fully set forth herein, except that: (i)
each reference in such incorporated sections to "Lease" shall be deemed a
reference to this "Sublease"; (ii) each reference to the "Premises" shall be
deemed a reference to the "Subleased Premises" herein; (iii) each reference to
"Landlord" and "Tenant" shall be deemed a reference to "Sublessor" and
"Sublessee", respectively, except as otherwise expressly set forth herein' (iv)
with respect to work, services, utilities, electricity, repairs (or damage
caused by Master Lessor), restoration, insurance, indemnities, reimbursements,
representations, warranties or the performance of any other obligation of Master
Lessor under the Master Lease, whether or not incorporated herein, the sole
obligation of Sublessor shall be to request the same in writing from Master
Lessor as and when requested to do so by Sublessee, and to use Sublessor's
commercially reasonable efforts (not including the payment of money, the
incurring of any liabilities, or the institution of legal proceedings) to obtain
Master Lessor's performance; (v) with respect to any obligation of Sublessee to
be performed under this Sublease, wherever the Master Lease grants to "Tenant" a
specified number of days to perform its obligations under the Master Lease,
except as otherwise provided herein, Sublessee shall have three (3) fewer days
to perform the obligation, including, without limitation, curing any defaults
(but in no event shall Sublessee have less than two (2) business days, unless
(a) there is no cure period under this Sublease or the Master Lease, as
incorporated herein, applicable thereto, or (b) the cure period is less than two
(2) business days, in which event, the cure period shall be the cure period set
forth in this Sublease or the Master Lease, as incorporated herein, as
applicable thereto); (vi) with respect to any approval required to be obtained
from the "Landlord" under the Master Lease, such approval must be obtained from
both Master Lessor and Sublessor, and Sublessor's withholding of approval shall
in all events be deemed reasonable if for any reason Master Lessor's approval is
not obtained; (vii) in any case where the "Landlord" reserves or is granted the
right to conduct test, investigate, manage, supervise, control, repair, alter,
regulate the use of, enter or use the Subleased Premises or any areas beneath,
above or adjacent thereto, such reservation or grant of right of entry shall be
deemed to be for the benefit of both Master Lessor and Sublessor; (viii) in any
case where "Tenant" is to indemnify, release or waive claims against "Landlord",
such indemnlty, release or waiver shall be deemed to run from Sublessee to both
Master Lessor and Sublessor; (ix) in any case where "Tenant" is to execute and
deliver certain documents or notices to "Landlord", such obligation shall be
deemed to run from Sublessee to both Master Lessor and Sublessor; and (x) the
following modifications shall be made to the Master Lease as incorporated
herein:
(1) the following provisions of the Master Lease are not
incorporated herein: Basic Lease Information (Tenant, Tenant's Address,
Landlord, Landlord's Address, Estimated Term Commencement Date, Length of Term,
Base Rent, Tenant's Proportionate Share, and Broker, only), Sections 2.A, 2.B,
3, 4.D (phrase "except for those Hazardous Materials listed on Exhibit "F" ...
all laws.", only), 6.A, 8.B(3) (the phrase "provided, however, that the original
Tenant ... up to Fifty Thousand Dollars ($50,000.00)" in the fifth sentence
thereof, only), 32.A (first sentence, only), 36,
8
37.D, 37.L (as to Exhibit A, B, C and F, only), 38 (reference to Exhibits A, B,
C and F, only), Exhibit A, Exhibit B, Exhibit C, Exhibit F, First Addendum to
Lease (paragraphs 1, 2, 3, 4, 5 and 7, only) and First Amendment to Lease
(paragraphs 1 (a, b, c, f, g, and h, only), 2,3, 4, 5, 6 and 7, only);
(2) references in the following provisions to "Landlord" shall
mean Master Lessor only (subject, however, to clauses (iv) through (ix) of the
introductory language to this Paragraph 18): Sections 4.B (last sentence only),
5 (last sentence only), 7.E (third sentence, only), 8.A, 10 (first, second and
third sentences, only), 15 (second sentence, only), and 24 (except first
reference to "Landlord" and except 24.E);
(3) any right to abate rent provided to Sublessee through
incorporation `of the provisions of the Master Lease shall not exceed the rent
actually abated under the Master Lease;
(4) references to "thirty (30) days" in Section 7.E shall be
changed to "fifteen (15) days";
(5) references to "Landlord' in the sixth (6th) sentence of
Section 12 shall be deemed to refer to Sublessor and Master Lessor; and
(6) references to "fifteen (15) days" in Section 18 shall be
deemed to refer to "ten (10) days".
B. Assumption of Obligations. This Sublease is and at all times
shall be subject and subordinate to the Master Lease and the rights of Master
Lessor thereunder. Sublessee hereby expressly assumes and agrees: (i) to comply
with all provisions of the Master Lease which are incorporated hereunder; and
(ii) to perform all the obligations on the part of the "Tenant" to be performed
under the terms of the Master Lease. In the event the Master Lease is terminated
for any reason whatsoever, this Sublease shall terminate simultaneously with
such termination and Sublessor shall have no liability to Sublessee with respect
thereto (unless (i) said termination shall have been caused by the default of
Sublessor under the Master Lease, and (ii) said Sublessor default was not as a
result of or due to (a) any act or omission of Sublessee or its agents,
employees, contractors, invitees, occupants, subtenants or assigns or (b)
Sublessee's default under this Sublease). In the event of a conflict between the
provisions of this Sublease and the Master Lease, as between Sublessor and
Sublessee, the provisions of this Sublease shall control.
19. Right to Cure Defaults: If Sublessee fails to pay any sum of money
to Sublessor, or fails to perform any other act on its part to be performed
hereunder, then Sublessor may, but shall not be obligated to, make such payment
or perform such act. All such sums paid, and all reasonable costs and expenses
of performing any such act, shall be deemed Additional Rent payable by Sublessee
to Sublessor upon demand, together with interest thereon at the Applicable
Interest Rate.
20. Conditions Precedent: This Sublease and Sublessor's and Sublessee's
obligations hereunder are conditioned upon Sublessor's receipt of the written
consent of Master Lessor to this Sublease in a form and substance acceptable to
Sublessor. If Sublessor fails to obtain said Master Lessor's written consent to
this Sublease within thirty (30) days after execution of this Sublease by
Sublessor, then Sublessor may terminate this Sublease by giving Sublessee
written notice thereof If Sublessor fails to obtain said Master Lessor's written
consent to this Sublease within sixty (60) days
9
after execution of this Sublease by Sublessor, then Sublessee may terminate this
Sublease by giving Sublessor written notice thereof
21. Entire Agreement: This Sublease, including the terms of the
Master Lease which are
incorporated herein by reference, contains the entire agreement
between the parties concerning the
subject matter of this Sublease and supersedes all prior
agreements and understandings between the
parties concerning the subject matter of this Sublease.
22. Counterparts: This Sublease may be executed in one (1) or more
counterparts each of
which shall be deemed an original but all of which together shall
constitute one (1) and the same
instrument. Signature copies may be detached from the
counterparts and attached to a single copy of
this Sublease physically to form one (1) document.
23. Sublessor's Obligations: Sublessor covenants and agrees that
Sublessor will pay all Base Rent and Additional Rent required to be paid by the
"Tenant" under the Master Lease (which Sublessee shall reimburse Sublessor for
in accordance with the terms of this Sublease) and fulfill its other
non-monetary obligations under the Master Lease to the extent that the failure
to perform the same would adversely affect Sublessee's use or occupancy of the
Subleased Premises.
10
IN WITNESS WHEREOF, the parties have executed this Sublease as of the
day and year first above written.
SUBLESSEE: SUBLESSOR:
GPS Management Services, Inc., Spectrian Corporation
a California corporation a Delaware corporation
By: /s/ John B. Wilson By: /s/ Henry Montgomery
----------------------------------- -----------------------------------
Name: John B. Wilson Name: Henry Montgomery
-------------------------------- ---------------------------------
Its: Executive Vice President & C.O.O. Its: Cheif Financial Officer
--------------------------------- ----------------------------------
By: By:
----------------------------------- -----------------------------------
Name: Name:
--------------------------------- ---------------------------------
Its: Its:
---------------------------------- ----------------------------------
Address: Address:
c/o The Gap, Inc. 350 West Java Drive
900 Cherry Avenue Sunnyvale, California 94089
San Bruno, California 94066 ATTN: Chief Financial Officer
ATTN: Senior Vice President, Real Estate
with a copy to: with a copy to:
c/o The Gap, Inc. Spectrian Corporation
One Harrison Street 350 West Java Drive
San Francisco, California 94105 Sunnyvale, California 94089
ATTN: General Counsel ATTN: Director of Facilities
11
BASIC LEASE INFORMATION
LEASE DATE: December 19, 1997
TENANT: Spectrian Corporation
a Delaware corporation
TENANT'S ADDRESS: 350 West Java Drive
Sunnyvale, CA 94089
LANDLORD: Stanford Ranch I, LLC
a Delaware Limited Liability company
LANDLORDS ADDRESS: P.O. Box 1200
Rocklin, CA 95677-1200
Project: Atherton Tech Center, Lot 10
Rocklin, CA 95765
Building Description: An approximate 40,000 SF single-story concrete
tilt-up building.
Premises: Approximately 20,858 square feet per office, tech,
and warehouse space situated on the western side of
the building commonly referred to as Suite 500
located within Atherton Tech Center on ??? ?? and
outlined on the floor plan attached hereto as
Exhibit A.
Permitted Use: General office, manufacturing storage and shipping
Parking Density: Tenant shall have the right to 8.3 parking spaces.
Estimated Term
Commencement Date: June 1, 1998
Length of Term: Five (5) years.
Base Rent: Shall be $17,729.30 per month or $2.85 per SF NNN
Landlord's Expense: Net, Net, Net
Security Deposit: None
Tenant's Proportionate
Share: 52.1%
Broker: Cornish & Carey Commercial
1601 Response Road, Suite 160
Sacramento, CA 95815
The foregoing Basic Lease Information is incorporated into and made a part of
this Lease. Each reference in this Lease to any of the Basic Lease Information
shall mean the respective information above and shall be construed to
incorporate all of the terms provided under the particular Lease paragraph
pertaining to such information. In the event of any conflict between the Basic
Lease Information and the Lease, the latter shall control.
EXHIBIT A
TABLE OF CONTENTS
Page
Basic Lease Information ...................... i
Table of Contents ............................ ii
1 Premises ..................................... 1
2 Possession and Lease Commencement ............ 1
3 Term ......................................... 1
4 Use .......................................... 1
5 Rules and Regulations ........................ 2
6 Rent ......................................... 2
7 Basic Operating Cost ......................... 3
8 Insurance end Indemnification ................ 4
9 Waiver of Subrogation ........................ 6
10 Landlord's Repairs and Services .............. 6
11 Tenants Repairs .............................. 6
12 Alterations .................................. 6
13 Signs ........................................ 7
14 Inspection/Posting Notices ................... 7
15 Utilities .................................... 7
16 Subordination ................................ 7
17 Financial Statements ......................... 8
18 Estoppel Certificate ......................... 8
19 Security Deposit ............................. 8
20 Tenant's Remedies ............................ 8
21 Assignment and Subletting .................... 8
22 Authority of Parties ......................... 9
23 Condemnation ................................. 9
24 Casualty Damage .............................. 9
25 Holding Over ................................. 10
26 Default ...................................... 10
27 Liens ........................................ 12
28 Substitution ................................. 12
29 Transfers by Landlord ........................ 12
30 Right of Landlord to Perform Tenants Covenants 12
31 Waiver ....................................... 12
32 Notices ...................................... 12
33 Attorney's Fees .............................. 13
34 Successors and Assigns ....................... 13
35 Force Majeure ................................ 13
36 Brokerage Commission ......................... 13
37 Miscellaneous ................................ 13
38 Additional Provisions ........................ 14
Signatures ................................... 14
First Addendum to Lease
Exhibits
Exhibit A .................................. Site Plan
Exhibit B ................................. Work Letter
Exhibit C ..................... Standard Specifications
Exhibit D ................................. Sign Policy
Exhibit E ....................... Rules and Regulations
Exhibit F .............. Permitted Hazardous Materials
LEASE
THIS LEASE is made as of this 19th day of December, 1997, by and between
STANFORD RANCH I, LLC (hereinafter called "Landlord") and SPECTRIAN CORPORATION
(hereinafter called "Tenant").
1. PREMISES.
Landlord leases to Tenant and Tenant leases from Landlord upon the terms
and conditions hereinafter set forth, those premises (the "Premises") depicted
on the floor plan dated November 6, 1997, attached hereto as Exhibit A and
described in the Basic Lease Information. The Premises may be all or part of the
building (the "Building") or of the project (the "Project") which may consist of
more than one building. The Building and Project are depicted respectively on
Exhibit A.
2. POSSESSION AND LEASE COMMENCEMENT.
A. Intentionally Omitted.
B. Construction of Improvements. The term commencement date ("Term
Commencement Date") shall be the earlier of the date on which (1) Tenant takes
possession of some or all of the Premises, or (2) the improvements constructed
or to be constructed in the Premises shall have been substantially completed in
accordance with the plans and specifications described on Exhibits A, B and C
attached hereto, whether or not substantial completion of the Building itself
shall have occurred, and Landlord has delivered to Tenant a copy of a temporary
or permanent occupancy permit. In no event shall the Term Commencement Data
occur sooner than June 1, 1998, unless Tenant agrees to the earlier date in
writing. If for any reason Landlord cannot deliver possession of the Premises to
Tenant on the Estimated Term Commencement Date, Landlord shall not be subject to
any liability therefor, nor shall Landlord be in default hereunder. In the event
of any dispute as to substantial completion of work performed or required to be
performed by Landlord, the certificate of Landlord's architect or general
contractor shall be conclusive. Substantial completion shall have occurred
notwithstanding Tenant's submission of a punchlist to Landlord, which Tenant
shall submit, if at all, within thirty (30) days after the Term Commencement
Date. As of the Term Commencement Date, Tenant acknowledges that Tenant shall
have inspected the Premises and will accept the Premises in their then existing
"as is" condition, broom clean, as suitable for the purpose for which the
Premises are leased, and Tenant agrees that said Premises and other improvements
are in good and satisfactory condition as of when possession was taken, subject
only to the punchlist. Tenant further acknowledges that no representations as to
the condition or repair of the Premises nor promises to alter, remodel or
improve the Premises have been made by Landlord unless such are expressly set
forth in this Lease. Tenant shall, upon demand, execute and deliver to Landlord
a letter of acceptance of delivery of the Premises. In no event, subject to
Paragraph 35, shall the Term Commencement Date be later than December 31, 1998.
3. TERM The Term of this Lease shall commence on the Term Commencement Date and
continue in full force and effect for the number of months specified as the
Length of Term in the Basic Lease Information or until this Lease is terminated
as otherwise provided herein. If the Term Commencement Date is a date other than
the first day of the calendar month, the Term shall be the number of months of
the Length of Term in addition to the remainder of the calendar month following
the Term Commencement Date.
4. USE
A. General Tenant shall use the Premises for the Permitted Use and for no
other use or purpose. Tenant shall control Tenant's employees, agents, customers
visitors, invitees, licensees, contractors, assignees and subtenants
(collectively, "Tenant's Parties") in such a manner that Tenant and Tenant's
Parties cumulatively do not exceed the Parking Density at any time. Tenant and
Tenant's Parties shall have the nonexclusive right to use, in common with other
parties occupying the Building or Project, the parking areas and driveways of
the Project, subject to such rules and regulations as Landlord may from time to
time prescribe.
B. Limitations. Tenant shall not permit any odors, smoke, dust, gas,
substances, noise or vibrations to emanate from the Premises, nor take any
action which would constitute a nuisance or would disturb, obstruct or endanger
any other tenants of the Building or Project in which the Premises are situated
or interfere with their use of their respective premises. Storage outside the
Premises of materials, vehicles or any other items is prohibited, unless
Landlord approves thereof in writing, which approval may be withheld by Landlord
in its sole end absolute discretion. Tenant shall not use or allow the Premises
to be used for any improper, immoral, unlawful or objectionable purpose, nor
shall Tenant cause or maintain or permit any nuisance in, on or about the
Premises. Tenant shall not commit or suffer the commission of any waste in, on
or about the Premises, Tenant shall not allow any sale by auction upon the
Premises, or place any loads upon the floors, walls or ceilings which endanger
the structure, or place any harmful liquids in the drainage system of the
Building or Project. No waste, materials or refuse shall be dumped upon or
permitted to remain outside the Premises except in trash containers placed
inside exterior enclosures designated for that purpose by Landlord. Landlord
shall not be responsible to Tenant for the non-compliance by any other tenant or
occupant of the Building or
Project with any of the above-referenced rules or any other terms or provisions
of such tenant's or occupant's lease or other contract. Landlord agrees to use
reasonable efforts to cause other tenants and occupants of the Building to
comply with the above-referenced rules; however, Landlord shall not be obligated
to litigate in connection therewith.
C. Compliance with Regulations. By entering the Premises, Tenant accepts the
Premises in the condition existing as of the date of such entry, subject to all
existing or future applicable municipal, state and federal and other
governmental statutes, regulations, laws and ordinances, including zoning
ordinances and regulations governing and relating to the use, occupancy and
possession of the Premises and the use, storage, generation and disposal of
Hazardous Materials (hereinafter defined) in, on and under the Premises
(collectively "Regulations"). Except for pre-existing violations, Tenant shall,
at Tenant's sole expense, strictly comply with all Regulations now in force or
which may hereafter be in force relating to the Premises and the use of the
Premises and/or the use, storage, generation of Hazardous Materials in, on and
under the Premises. Tenant shall, at its sole cost and expense obtain any and
all licenses or permits necessary for Tenant's use of the Premises. Tenant shall
promptly comply with the requirements of any board of fire underwriters or other
similar body now or hereafter constituted. Tenant shall not do or permit
anything to be done in, on, or about the Premises or bring or keep anything
which will in any way increase the rate of any insurance upon the Premises,
Building or Project, or upon any contents therein or cause a cancellation of
said insurance or otherwise affect said insurance in any manner. Tenant shall
indemnify, defend, protect and hold Landlord harmless from and against any loss,
cost, expense, damage, attorneys' fees or liability arising out of the failure
of Tenant to comply with any applicable law or comply with the requirements as
set forth herein.
D. Hazardous Wastes. Tenant shall not cause, or allow any of Tenant's Parties to
cause, any Hazardous Materials to be used, generated, stored or disposed of on
or about the Premises, the Building or the Project, except for those Hazardous
Materials listed on Exhibit "F" attached hereto, which shall be permitted so
long as Tenant uses, stores and handles the same in compliance with all laws. As
used in this Lease, "Hazardous Materials" shall include, but not be limited to,
hazardous, toxic and radioactive materials and those substances defined as
"hazardous substances," "hazardous materials," "hazardous wastes," "toxic
substances," or other similar designations in any federal, state or local law,
regulation or ordinance. Landlord shall have the right at all reasonable times
to inspect the Premises and to conduct tests and investigations to determine
whether Tenant is in compliance with the foregoing provisions, and if same
indicate Tenant has violated any laws, breached this Lease or contaminated the
Premises, Building or Project in any way, in addition to any and all rights and
remedies of Landlord, the costs of all inspections, tests and investigations to
be borne by Tenant. Tenant shall indemnify, defend, protect and hold Landlord
harmless from and against all liabilities, losses, costs and expenses, demands,
causes of action, claims or judgments directly or indirectly arising out of the
use, generation, storage or disposal of Hazardous Materials by Tenant or any of
Tenant's parties, which indemnity shall include without limitation, the cost of
any required or necessary repair, cleanup or detoxification, and the preparation
of any closure or other required plans, whether such action is required or
necessary prior to or following the termination of this Lease. Neither the
written consent by Landlord to the use, generation, storage or disposal of
Hazardous Materials nor the strict compliance by Tenant with all laws pertaining
to Hazardous Materials shall excuse Tenant from Tenant's obligation of
indemnification pursuant to this Paragraph 4.D. Tenant's obligations pursuant to
the foregoing indemnity shall survive the termination of this Lease.
5. RULES AND REGULATIONS. Tenant shall faithfully observe and comply with any
rules and regulations Landlord may from time to time prescribe in writing for
the purpose of maintaining the proper care, cleanliness safety traffic flow and
general order of the Premises or Project. Tenant shall cause Tenant's Parties to
comply with such rules and regulations. Landlord shall not be reasponsible to
Tenant for the non-compliance by any other tenant or occupant of the Building or
Project with any of the rules and regulations. Landlord agrees to use reasonable
efforts to cause other tenants and occupants of the Building to comply with the
above-referenced rules; however, Landlord shall not be obligated to litigate in
connection therewith.
6. RENT
A. Base Rent. Tenant shall pay to Landlord, without demand throughout the
Term, Base Rent as specified in the Basic Lease Information, payable in monthly
installments in advance on or before the first day of each calendar month, in
lawful money of the United States, without deduction or offset whatsoever as the
address specified in the Basic Lease information or to such other place as
Landlord may from time to time designate in writing. If the obligation for
payment of Base Rent commences on other than the first day of a month, then Base
Rent shall be prorated and the prorated installment shall be paid on the first
day of the calendar month succeeding the Term Commencement Date.
B. Additional Rent. All monies other than Base Rent required to be paid
by Tenant hereunder, including but not limited to, the interest and late charge
described in Paragraph 26.D., any monies spent by Landlord pursuant to Paragraph
30, and Tenant's Proportionate Share of Basic Operating Cost, as specified in
Paragraph 7 of this Lease, shall be considered additional rent ("Additional
Rent"). "Rent" shall mean Base Rent and Additional Rent.
7. BASIC OPERATING COSTS.
A. Basic Operating Cost. In addition to the Base Rent required to be paid
hereunder, Tenant shall pay as Additional Rent, Tenant's Proportionate Share, as
defined in the Basic Lease Information of Basic Operating Cost in the manner set
forth below. Landlord shall account for each item of Basic Operating Cost as
either a cost attributable to the Building or to the Project, as determined by
Landlord in Landlord's sole discretion, and unless provided to the contrary in
this Lease. Tenant shall pay the applicable Tenant's Proportionate Share of each
such Basic Operating Cost, as set forth in the Basic Lease Information. Basic
Operating Cost shall mean all expenses and costs of every kind and nature which
Landlord shall pay or become obligated to paid, because of or in connection with
the management, maintenance, preservation and operation of the Project and its
supporting facilities (determined in accordance with generally accepted
accounting principles, consistently applied) including but not limited to the
following:
(1) Taxes. All real property taxes, possessory interest taxes,
business or license taxes or fees, service payments in lieu of such taxes or
fees, annual or periodic license or use fees, excises, transit charges, housing
fund assessments, open space charges, assessments, levies, fees or charges,
general and special, ordinary and extraordinary, unforeseen as well as foreseen,
of any kind (including fees "in-lieu" of any such tax or assessment) which are
assessed, levied, charged, confirmed, or imposed by any public authority upon
the Project, its operations or the Rent (or any portion or component thereof)
(all of the foregoing being hereinafter collectively referred to as "real
property taxes"), 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, except (a) inheritance or estate taxes imposed upon or
assessed against the Project, or any part thereof or interest therein, and (b)
taxes computed upon the basis of net income of Landlord or the owner of any
interest therein, except as otherwise provided in the following sentence. Basic
Operating Cost shall also include any taxes, assessments, or any other fees
imposed by any public authority upon or measured by the monthly rental or other
charges payable hereunder, including, without limitation, any gross income tax
or excise tax levied by the local governmental authority in which the Project is
located, the federal government, or any other governmental body with respect to
receipt of such rental, or upon, with respect to or by reason of the
development, possession, leasing, operation, management, maintenance,
alteration, repair, use or occupancy by Tenant of the Premises or any portion
thereof, or upon this transaction of any document to which Tenant is a party
creating or transferring an interest or an estate in the Premises. In the event
that it shall not be lawful for Tenant to reimburse Landlord for all or any part
of such taxes, the monthly rental payable to Landlord under this Lease shall be
revised to net to Landlord the same net rental after imposition of any such
taxes by Landlord as would have been payable to Landlord prior to the Payment of
such taxes.
(2) Insurance. All insurance premiums and costs including but not
limited to, any deductible amounts, premiums and cost of insurance incurred by
Landlord, as more fully set forth in Paragraph 8.A. herein.
(3) Repairs and Improvements. Repairs, replacements and general
maintenance for the Premises, Building and Project (except for those repairs
expressly made the financial responsibility of Landlord pursuant to the terms of
this Lease, repairs to the extent paid for by proceeds of insurance or by Tenant
or other third parties, and alterations attributable solely to tenants of the
Project other than Tenant). Such repairs, replacements, and general maintenance
shall include the cost of any capital improvements made to or capital assets
acquired for the Project, Building, or Premises after the Term Commencement Date
that reduce any other Basic Operating Cost, are reasonably necessary for the
health and safety of the occupants of the Project or are made to the Building by
Landlord after the date of this Lease and are required under any governmental
law or regulation, such costs or allocable portions thereof to be amortized over
such reasonable period as Landlord shall determine together with interest on the
unamortized balance at the "prime rate" charged at the time such improvements or
capital assets are constructed or acquired by Wells Fargo Bank, N.A. (San
Francisco), plus two (2) percentage points, but in no event more than the
maximum rate permitted by law.
(4) Services. All expenses relating to maintenance, janitorial and
service agreements and services, and costs of supplies and equipment used in
maintaining the Premises, Building and Project and the equipment therein and the
adjacent sidewalks, driveways, parking and service areas, including, without
limitation, alarm service, window cleaning, elevator maintenance, Building
exterior maintenance and landscaping.
(5) Utilities. Utilities which benefit all or a portion of the
Premises, Building or Project.
(6) Management Fee. A management and accounting cost recovery fee
equal to three percent (3%) of the sum of Base Rent and Basic Operating Cost
(7) Legal and Accounting. Legal and accounting expenses relating to
the Project, including the cost of audits by certified public accountants.
In the event that the Building is not fully occupied during any fiscal year of
the Term as determined by Landlord, an adjustment shall be made in computing the
Basic Operating Cost for such year so that Tenant pays Tenant's Proportionate
Share of Basic Operating Cost with variable costs increased on an
extrapolated basis to what they would be if the Building was fully occupied, as
reasonably determined by Landlord; provided, however, that in no event shall
Landlord be entitled to collect in excess of one hundred percent (100%) of the
total Basic Operating Cost from all of the tenants in the Building including
Tenant.
Basic Operating Cost shall not include specific costs incurred for the account
of, separately billed to and paid by specific tenants.
B. Payment of Estimated Basic Operating Costs. "Estimated Basic Operating
Cost" for any particular year shall mean Landlord's estimated of the Basic
Operating Cost for such fiscal year made prior to commencement of such fiscal
year as hereinafter provided. Landlord shall have the right from time to time to
revise its fiscal year and interim accounting periods so long as the periods as
so revised are reconciled with prior periods in accordance with generally
accepted accounting principles applied in a consistent manner. During the last
month of each fiscal year during the Term, or as soon thereafter as practicable,
Landlord shall give Tenant written notice of the Estimated Basic Operating Cost
for the Cost with installments of Base Rent for the fiscal year to which the
Estimated Basic Operating Cost applies in monthly installments on the first day
of each calendar month during such year, in advance. If at any time during the
course of the fiscal year, Landlord determines that Basic Operating Cost is
projected to vary from the then Estimated Basic Operating Cost by more than ten
percent (10%), Landlord may, by written notice to Tenant, revise the Estimated
Basic Operating Cost for the balance of such fiscal year, and Tenant's monthly
installments for the remainder of such year shall be adjusted so that by the end
of such fiscal year Tenant has paid to Landlord Tenant's Proportionate Share of
the revised Estimated Basic Operating Cost for such year.
C. Computation of Basic Operating Cost Adjustment. "Basic Operating Cost
Adjustment" shall mean the difference between Estimated Basic Operating Cost and
Basic Operating Cost for any fiscal year determined as hereinafter provided.
Within one hundred twenty (120) days after the end of each fiscal year Landlord
shall deliver to Tenant a statement of Basic Operating Cost for the fiscal year
just ended accompanied by computation of Basic Operating Cost Adjustment. If
such statement shows that Tenant's payment based upon Estimated Basic Operating
Cost is less than Tenant's Proportionate Share of Basic Operating Cost, then
Tenant shall pay to Landlord the difference within thirty (30) days after
receipt of such statement. If such statement shows that Tenant's payments of
Estimated Basic Operating Cost exceed Tenant's Proportionate Share of Basic
Operating Cost, then (provided that Tenant's not in default under this Lease)
Landlord shall pay to Tenant the difference within thirty (30) days after
delivery of such statement to Tenant. If this Lease has been terminated or the
Team hereof has expired prior to the date of such statement, then the Basic
Operating Cost Adjustment shall be paid by the appropriate party within thirty
(30) days after the date of delivery of the statement. Should this Lease
commence or terminate at any time other than the first day of the fiscal year.
Tenant's Proportionate Share of the Basic Operating Cost adjustment shall be
prorated by reference to the exact number of calendar days during such fiscal
year that this Lease is in effect.
D. Net Lease. This shall be a net Lease and Base Rent shall be paid to
Landlord absolutely net of at costs and expenses, except as specifically
provided to the contrary in this Lease. The provisions for payment of Basic
Operating Cost and the Basic Operating Cost Adjustment are intended to pass on
to Tenant and reimburse Landlord for all costs and expenses of the nature
described in Paragraph 7A incurred in connection with the ownership, maintenance
and operation of the Building or Project and such additional facilities now and
in subsequent years as may be determined by Landlord to be necessary to the
Building or Project.
E. Tenant Audit. In the event that Tenant shall dispute the amount set
forth in any statement provided by Landlord under Paragraph 7.B. or 7.C. above.
Tenant shall have the right, not later than thirty (30) days following the
receipt of such statement and upon the condition that Tenant shall first deposit
with Landlord the full amount in dispute, to cause Landlord's books and records
with respect to Basic Operating Cost for such fiscal year to be audited by
certified public accountants selected by Tenant and subject to Landlord's
reasonable right of approval. The Basic Operating Cost Adjustment shall be
appropriately adjusted on the basis of such audit. If such audit discloses a
liability for a refund in excess of ten percent 10% of Tenant's Proportionate
Share of the Basic Operating Cost Adjustment previously reported the cost of
such audit shall be borne by Landlord otherwise the cost of such audit shall be
paid by Tenant. If Tenant shall not request an audit in accordance with the
provisions of this Paragraph, i.e., within thirty (30) days after receipt of
Landlord's statement provided pursuant to Paragraph 7.B. or 7.C. such statement
shall be final and binding for all purposes hereof.
8. INSURANCE AND INDEMNIFICATION.
A. Landlord's Insurance. Landlord agrees to maintain insurance insuring
the Building against fire, lightning, vandalism and malicious mischief
(including, if Landlord elects, "All Risks" coverage, earthquake, and/or flood
insurance). In an amount not less than eighty percent (80%) of the replacement
cost thereof, with deductibles and the form and endorsements of such coverage as
selected by Landlord. Such insurance may also include, at Landlord's option,
insurance against loss of Base Rent and Additional Rent, in an amount equal to
the amount of Base Rent and Additional Rent payable by Tenant for a period of at
least twelve (12) months commencing on the date of loss. Such insurance shall be
for the sole benefit of Landlord and under Landlord's sole control. Landlord
shall not be obligated to insure any furniture equipment machinery, goods or
supplies which Tenant may keep or maintain in the
Premises, or any leasehold improvements, additions or alterations within the
Premises. Landlord may also carry such other insurance as Landlord may deem
prudent or advisable, including, without limitation, liability insurance in such
amounts and on such terms as Landlord shall determine.
B. Tenant's Insurance.
(1) Property Insurance. Tenant shall procure ad Tenant's sole cost and
expense and keep it effect from the date of this Lease and at all times until
the end of the Term, insurance on all personal property and fixtures of Tenant
and all improvements made by or for Tenant to the Premises, insuring such
property for the full replacement value of such property.
(2) Liability Insurance. Tenant shall procure at Tenant's sole cost
and expense and keep it effect from the date of this Lease and at all times
until the end of the Term either Comprehensive General Liability Insurance or
Commercial General Liability Insurance applying to the use and occupancy of the
Premises and the Building, and any part of either and any areas adjacent
thereto, and the business operated by Tenant, or by any other occupant on the
Premises. Such insurance shall include Broad Form Contractual Liability
Insurance coverage insuring all of Tenant's indemnity obligations under this
Lease. Such coverage shall have a minimum combined single limit of at least Two
Million Dollars ($2,000,000.00), and a general aggregate limit of Three Million
Dollars ($3,000,000.00). All such policies shall be written to apply to all
bodily injury, property damage or loss, personal injury and other covered loss,
however occasioned, occurring during the policy term, shall be endorsed to add
Landlord and any party holding an interest to which this Lease may be
subordinated as an additional insured, and shall provide that such coverage
shall be primary and that any insurance maintained by Landlord shall be excess
insurance only. Such coverage shall also contain endorsements: (i) deleting any
employee excursion on personal injury coverage; (ii) including employees as
additional insureds; (iii) deleting any liquor liability exclusion; and (iv)
providing for coverage of employer's automobile non-ownership liability. All
such insurance shall provide for severability of interests; shall provide that
an act or omission of one of the named insured shall not reduce or avoid
coverage to the other named insureds and shall afford coverage for all claims
based on acts, omissions, injury and damage, which claims occurred or arose (or
the onset of which occurred or arose) in whole or in part during the policy
period. Said coverage shall be written on an "occurrence" basis, if available.
If an "occurrence" basis form is not available. Tenant must purchase "tail"
coverage for the most number of years available, and Tenant must also purchase
"tail" coverage if the retroactive date of an "occurrence" basis form is changed
so as to leave a gap in coverage for occurrences that might have occurred in
prior years. If a "claims make" policy is ever used, the policy must be endorsed
so that Landlord is given the right to purchase "tail" coverage should Tenant
for any reason not do so or if the policy is to be canceled for nonpayment of
premium.
(3) General Insurance Requirements. All coverages described in this
Paragraph 8.B. shall be endorsed to provide Landlord with thirty (30) days'
notice of cancellation or change in terms. If at any time during the Term the
amount of coverage of insurance which Tenant is required to carry under this
Paragraph 8.B, is, in Landlord's reasonable judgment, materially less than the
amount or type of insurance coverage typically carried by owners or tenants of
properties located in the general area in which the Premises are located which
are similar to and operated for similar purposes as the Premises. Landlord shall
have the right to require Tenant to increase the amount or change the types of
insurance coverage required under this Paragraph 8.B. All insurance policies
required to be carried under this Lease shall be written by companies rated A +
XII or better "Best's Insurance Guide" and authorized to do business in
California. Any deductible amounts under any insurance policies required
hereunder shall be subject to Landlord's prior written approval in any event
deductible amounts shall not exceed Ten Thousand Dollars ($10,000.00), provided,
however, that the original Tenant may have a deductible if up to Fifty Thousand
Dollars ($50,000.00). Tenant shall deliver to Landlord on or before the Term
Commencement Date, and thereafter at least thirty (30) days before the
expiration dates of the expiring policies certified copies of Tenant's insurance
policies, or a certificate evidencing the same issued by the insurer thereunder,
showing that all premiums have been paid for the full policy period: and, in the
event Tenant shall fail to procure such insurance, or to deliver such policies
or certificates. Landlord may at Landlord's option and in addition to Landlord's
other remedies in the event of a default by Tenant hereunder procure the same
for the account of Tenant, and the cost thereof shall be paid to Landlord as
Additional Rent.
C. Indemnification. Landlord shall not be liable to Tenant for any loss
or damage to person or property caused by theft, fire, acts of God, acts of a
public enemy, nor strike, insurrection, war, court order, requisition or order
of governmental body or authority or for any damage or inconvenience which may
arise through repair or alteration of any part of the Building or Project or
failure to make any such repair, except as expressly otherwise provided in
Paragraph 10. Tenant shall indemnify, defend by counsel acceptable to Landlord,
protect and hold Landlord harmless from and against any and all liabilities,
losses, costs, damages, injuries or expenses, including reasonable attorney's
fees and court costs, arising out of or related to: (1) claims of injury to or
death of persons or damage to property occurring or resulting directly or
indirectly from the use of occupancy of the Premises, or from activities of
Tenant. Tenant's Parties or anyone in or about the Premises or Project, or from
any cause whatsoever (2) claims for work or labor performed, or for materials or
supplies furnished to or at the request of Tenant in connection with performance
of any work done for the account of Tenant within the Premises of Project and
(3) claims arising from any breach or default on the part of Tenant in the
performance or any covenant contained in this Lease. The foregoing indemnity
shall not be applicable to claims arising from the active negligence or willful
misconduct of Landlord. The provisions of this
Paragraph shall survive the expiration or termination of this Lease with respect
to any claims or liability occurring prior to such expiration or termination.
9. WAIVER OF SUBROGATION. To the extent permitted by law and without affecting
the coverage provided by insurance to be maintained hereunder. Landlord and
Tenant each waiver any right to recover against the other for: (a) damages for
injury to or death of persons; (b) damages to property; (c) damages to the
Premises or any part thereof; and (d) claims arising by reason of the foregoing
due to hazards covered by insurance to the extent of proceeds recovered
therefrom. This provision is intended to waive fully, and for the benefit of
each party, any rights and/or claims which might give rise to a right of
subrogation in favor of any insurance carrier. The coverage obtained by each
party pursuant to this lease shall include, without limitation, a waiver of
subrogation by the carrier which conforms to the provisions of this paragraph.
10. LANDLORD'S REPAIRS AND SERVICES. Landlord shall, at Landlord's expense,
maintain the structural soundness of the structural beams of the roof,
foundations and exterior walls of the Building in good repair, reasonable wear
and tear excepted. The term "exterior walls" as used herein shall not include
windows, glass or plate glass, doors, special store fronts or office entries.
Landlord shall perform on behalf of Tenant and other tenants of the Project, as
an item of Basic Operating Cost, the maintenance of the Building, Project and
public and common areas of the Project, including but not limited to the roof,
pest extermination, the landscaped areas, parking areas, driveways, the truck
staging areas, rail spur areas, fire sprinker systems, sanitary and storm sewer
lines, utility services, electric and telephone equipment servicing the
Building(s), exterior lighting, and anything which affects the operation and
exterior appearance of the Project, which determination shall be at Landlord's
sole discretion. Except for the expenses directly involving the items
specifically described in the first sentence of this Paragraph 10. Tenant shall
reimburse Landlord for all such costs in accordance with Paragraph 7. Any damage
caused by or repairs necessitated by any act of Tenant may be repaired by
Landlord at Landlord's option and at Tenant's expense. Tenant shall immediately
give Landlord written notice of any defect or need of repairs after which
Landlord shall have a reasonable opportunity to repair same. Landlord's
liability with respect to any defects, repairs, or maintenance for which
Landlord is responsible under any of the provisions of this Lease shall be
limited to the cost of such repairs or maintenance.
11. TENANT'S REPAIRS. Tenant shall at Tenant's expense maintain all parts of the
Premises in a good, clean and secure condition and promptly make all necessary
repairs and replacements, including but not limited to all windows, glass,
doors, walls and wall finishes, floor covering, heating, ventilating and air
conditioning systems, truck doors, dock bumpers, dock plates and levelers,
plumbing work and fixtures, downspouts, electrical and lighting systems, and
fire sprinklers. Tenant shall, at Tenant's expense, also perform regular removal
of trash and debris. If required by the railroad company, Tenant shall at
Tenant's own expense, enter into a regularly scheduled preventive
maintenance/service contract with a maintenance contractor for servicing all hot
water, heating and air conditioning systems and equipment within or serving the
Premises. The maintenance contractor and the contract must be approved by
Landlord. The service contract must include all services suggested by the
equipment manufacturer within the operation/maintenance manual and must become
effective and a copy thereof delivered to Landlord within thirty (30) days after
the Term Commencement Date. Tenant shall not damage any demising wall or disturb
the integrity and support provided by any demising wall and shall, at its sole
expense, immediately repair any damage to any demising wall caused by Tenant or
Tenant's Parties.
12. ALTERATIONS. Tenant shall not make, or allow to be made, any alterations or
physical additional in, about or to the Premises without obtaining the prior
written consent of Landlord, which consent shall not be unreasonably withheld
with respect to proposed alterations and additions which: (a) comply with all
applicable laws, ordinances, rules and regulations; (b) are in Landlord' opinion
compatible with the Project and its mechanical, plumbing, electrical,
heating/ventilation/air conditioning systems; and (c) will not interfere with
the use and occupancy of any other portion of the Building or Project by any
other tenant or its invitees. Notwithstanding the foregoing, Tenant shall have
the right to make interior nonstructural alterations or additions to the
Premises that do not exceed in the aggregate Ten Thousand Dollars ($10,000.00)
per occurrence without Landlord's prior written consent, so long as same do not
affect utilities. HVAC or other building systems or equipment. Tenant shall
however, provide Landlord with advance written notice of such interior,
nonstructural alterations or additions as required in this lease. If Landlord's
consent is required for any alterations or additions, then, without limiting the
generality of the foregoing, Landlord shall have the right of written consent
for all plans and specifications for the proposed alterations or additions,
construction means and methods, all appropriate permits and licenses, any
contractor or subcontractor to be employed on the work of alteration or
additions and the time for performance of such work. Tenant shall also supply to
Landlord any documents and information reasonably requested by Landlord in
connection with Landlord's consideration of a request for approval hereunder.
Tenant shall reimburse Landlord for all costs which Landlord may incur in
connection with granting approval to Tenant for any such alterations and
additions, including any costs or expenses which Landlord may incur in electing
to have outside architects and engineers review said plans and specifications.
All such alterations, physical additions or improvements shall remain the
property of Tenant until termination of this Lease, at which time they shall be
and become the property of Landlord if Landlord so elects; provided, however,
that Landlord may, at Landlord's option, require that Tenant, at Tenant's
expense, remove any or all alterations, additions, improvements and partitions
made by Tenant and restore the Premises by the termination of this Lease,
whether by lapse of time or otherwise, to their condition existing prior to the
construction of any such alterations, additions, partitions or leasehold
improvements. All such removals and restoration shall be
accomplished in a good and workmanlike manner so as not to cause any damage to
the Premises or Project whatsoever. If Tenant fails to so remove such
alterations, additions, improvements and partitions or Tenant's fixtures or
furniture. Landlord may keep and use them or remove any of them and cause them
to be stored or sold in accordance with applicable law, at Tenant's sole
expense. In addition to and wholly apart from Tenant's obligation to pay
Tenant's Proportionate Share of Basic Operating Cost, Tenant shall be
responsible for and shall pay prior to delinquency any taxes or governmental
service fees, possessory interest taxes, fees or charges in lieu of any such
taxes, capital levies, or other charges imposed upon, levied with respect to or
assessed against its personal property, on the value of the alterations,
additions or improvements within the Premises, and on Tenant's interest pursuant
to this Lease. To the extent that any such taxes are not assessed or billed to
Tenant, Tenant shall pay the amount thereof as invoced to Tenant by Landlord.
13. SIGNS. All signs, notices and graphics of every kind or character, visible
in or from public view or corridors, the common areas or the exterior of the
premises, shall be subject to Landlord's prior written approval. Tenant shall
not place or maintain any banners whatsoever or any window decor in or on any
exterior window or window fronting upon any common areas or service area or upon
any truck doors or man doors without Landlord's prior written approval. Any
installation of signs or graphics on or about the Premises and Project shall be
subject to any applicable governmental laws, ordinances, regulations and to any
other requirements imposed by Landlord. Tenant shall remove all such signs and
graphics prior to the termination of this Lease. Such installations and removals
shall be made in such manner as to avoid injury or defacement of the Premises,
Building or Project and any other improvements contained therein, and Tenant
shall repair any injury or defacement, including without limitation,
discoloration caused by such installation or removal.
14. INSPECTION/POSTING NOTICES. After reasonable notice, except in emergencies
where no such notice shall be required, Landlord, and Landlord's agents and
representatives, shall have the right to enter the Premises to inspect the same,
to clean, to perform such work as may be permitted or required hereunder, to
make repairs or alterations to the Premises or Project or to other tenant spaces
therein, to deal with emergencies to post such notices as may be permitted or
required by law to prevent the perfection of liens against Landlord's interest
in the project or to exhibit the premises to prospective tenants, purchasers,
encumbrancers or others, or for any other purpose as Landlord may deem necessary
or desirable; provided, however, that Landlord shall use reasonable efforts not
to unreasonably interfere with Tenant's business operations. Tenant shall not be
entitled to any abatement of Rent by reason of the exercise of any such right of
entry. At any time within six (6) months prior to the end of the Term, Landlord
shall have the right to erect on the Premises and/or Project a suitable sign
indicating that the Premises are available for lease. Tenant shall give written
notice to Landlord at least thirty (30) days prior to vacating the Premises and
shall meet with Landlord for a joint inspection of the premises at the time of
vacating for purposes of determining Landlord's and Tenant's responsibility for
repairs and restorations. Upon completion and/or payment, as applicable of
repair and restoration items by Tenant which are approved of by Landlord in
writing, Tenant shall be relived of all further repair and restoration
obligations, except those subsequently caused by Tenant or Tenant's agents,
employees, contractors, subtenants or assigns. In the event of Tenant's failure
to give such notice or participate in such joint inspection, Landlord's
inspection at or after Tenant's vacating the premises shall conclusively be
deemed correct for purposes of determining Tenant's responsibility to repairs
and restoration.
15. UTILITIES. Tenant shall pay directly for all water, gas, heat, air
conditioning, light, power, telephone, sewers, sprinkler charges and other
utilities and services ???? on or from the Premises, together with any taxes,
penalties, surcharges or the like pertaining thereto, and maintenance charges
for utilities and shall furnish all electric light bulbs, ballasts and tubes.
Landlord shall at Landlord's sole cost and expense separately meter gas and
electricity for the Premises. If any such services are not separately metered to
Tenant, Tenant shall pay a reasonable proportion as determined by landlord of
all charges jointly serving other premises. Landlord shall not be liable for any
damages directly or indirectly resulting from nor shall the Rent or any monies
owned Landlord under this Lease herein reserved be coated by reason of (a) the
installation, use or interruption of use of any equipment used in connection
with the furnishing of any such utilities or services; (b) the failure to
furnish or delay in furnishing any such utilities or services when such failure
or delay is caused by acts of God or the elements, labor disturbances of any
character, or any other accidents or other conditions beyond the reasonable
control of Landlord; or (c) the limitation, curtailment, rationing or
restriction on use of water, electricity, gas or any other form of energy or an
other service or utility whatsoever serving the Premises or Project. Landlord
shall be entitled to cooperate voluntarily and in a reasonable manner with the
efforts of national, state or local governmental agencies or utility suppliers
in reducing energy or other resource consumption. The obligation to make
services available hereunder shall be subject to the limitations of any such
voluntary, reasonable program.
16. SUBROGATION. Without the necessity of any additional document being executed
by Tenant for the purpose of effecting a subordination, the Lease shall be
subject and subordinate at all times to: (a) all ground leases or underlying
leases which may now exist or hereafter be executed affecting the Premises
and/or the land upon which the Premises and Project are situated, or both; and
(b) any mortgage or deed of trust which may now exist or be placed upon said
project and, ground leases or underlying leases, or Landlord's interest or
estate in any of said items which is specified as security. Notwithstanding the
foregoing, Landlord 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. In the event that any ground lease or underlying lease terminates
for any reason or any mortgage or deed of trust is foreclosed or a conveyance in
??? foreclosure is made for any reason Tenant shall, notwithstanding,
any subordination, attorn to and become the Tenant of the successor in interest
to Landlord at the option of such successor in interest. Within ten (10) days
after request by Landlord, Tenant shall execute and deliver any additional
documents evidencing Tenant's attornment or the subordination of this Lease with
respect to any such ground leases or underlying leases or any such mortgage or
deed of trust, in the form requested by Landlord or by any ground landlord,
mortgages, or beneficiary under a deed of trust.
17. FINANCIAL STATEMENTS. At the request of Landlord, Tenant shall provide to
Landlord Tenant's current financial statement or other information discussing
financial worth of Tenant, which Landlord shall use solely for purposes of this
Lease and in connection with the ownership, management and disposition of the
Project.
18. ESTOPPEL CERTIFICATE. Tenant agrees from time to time, within fifteen (15)
days after request of Landlord, to deliver to Landlord, or Landlord's designee,
an estoppel certificate stating that this Lease is in full force and effect, the
date to which Rent has been paid, the unexpired portion of this lease and such
other matters pertaining to this Lease as may reasonably requested by Landlord.
Failure by Tenant to execute and deliver such certificate shall constitute an
acceptance of the Premises and acknowledgment by Tenant that the statements
included are true and correct without exception. Landlord and Tenant intend that
any statement delivered pursuant to this Paragraph may be relied upon by any
mortgagee, beneficiary, purchaser or prospective purchaser of the Project or any
interest therein. The parties agree that Tenant's obligation to furnish such
estoppel certificates in a timely fashion is a material inducement for
Landlord's execution of the Lease, and shall be an event of default if Tenant
fails to fully comply.
19. SECURITY DEPOSIT. Intentionally Omitted.
20. TENANT'S REMEDIES. The liability of landlord to Tenant for any default by
Landlord under the terms of this Lease are not personal obligations of the
individual or other partners, directors, officers and shareholders of Landlord,
and Tenant agrees to look solely to Landlord's interest in the Project for the
recovery of any amount from landlord, and shall not look to other assets of
Landlord, nor seek recourse against the assets of the individual or other
partners, directors, officers and shareholders of Landlord. Any lien obtained to
enforce any such judgment and any levy of execution thereon shall be subject to
subordinate to any lien, mortgage or deed of trust on the Project.
21. ASSIGNMENT AND SUBLETTING
A. General. Tenant shall not assign or sublet the Premises or any part
thereof without Landlord's prior written approval except as provided herein. If
Tenant desires to assign this Lease or sublet any or all of the Premises, Tenant
shall give Landlord written notice forty-five (45) days prior to the anticipated
effective date of the assignment or sublease. Landlord shall then have a period
of thirty (30) days following receipt of such notice to notify Tenant in writing
landlord elects either: (1) to terminate this Lease as to the space so affected
as of the date so requested by Tenant; or (2) to permit Tenant to assign this
Lease or sublet such space, subject, however, to Landlord's prior written
approval of the proposed assignee or subtenant and of any related documents or
agreements associated with the assignment or sublease. If Landlord should fail
to notify Tenant in writing of such election within said period, Landlord shall
be deemed to have waived option (1) above, but written approval by Landlord of
the proposed assignee or subtenant shall be required. If Landlord does not
exercise the option provided in subitem (1) above, Landlord's consent to a
proposed assignment or sublet shall not be unreasonably withheld. Without
limiting the other instances in which it may be reasonable for Landlord to
withhold Landlord's consent to an assignment or subletting, landlord and Tenant
acknowledge that it shall be reasonable for landlord to withhold Landlord's
consent in the following instances: The use of the Premises by such proposed
assignee or subtenant would not be permitted use or would increase the Parking
Density of the Project. The proposed assignee or subtenant is not of sound
financial condition; the proposed assignee or subtenant is a governmental
agency; the proposed assignee or subtenant does not have a good reputation as a
tenant of property; the proposed assignee or subtenant would entail any
alterations which would lessen the value of the leasehold improvements in the
premises or if Tenant is in default of any obligation of Tenant under this
Lease, or Tenant has defaulted under this Lease on three (3) or more occasions
during any twelve (12) months preceding the date that Tenant shall request
consent. Failure by Landlord to approve a proposed assignee or subtenant shall
not cause a termination of this Lease. Upon a termination under this Paragraph
21.A, Landlord may lease the Premises to any party, including parties with whom
Tenant has negotiated an assignment or sublease, without incurring any liability
to Tenant.
B. Bonus Rent. Any Rent or other consideration realized by Tenant under
any such sublease or assignment in excess of the Rent payable hereunder, after
amortization of a reasonable brokerage commission, shall be divided and paid,
fifty percent (50%) to Tenant, fifty percent (50%) to Landlord. In any
subletting or assignment undertaken by Tenant. Tenant shall diligently seek to
obtain the maximum rental amount available in the marketplace for such
subletting or assignment.
C. Corporation. If Tenant is a corporation, a transfer of corporate
shares by sale, assignment, bequest, inheritance, operation of law or other
disposition (including such a transfer to or by a receiver or trustee in federal
or state bankruptcy, insolvency or cover proceedings), so as to result on a
change in the present control of such corporation or any of its ????????????.
persons owning a majority of said corporate shares, shall constitute an
assignment for purposes of this Lease.
D. Partnership. If Tenant is a partnership, joint venture or other
incorporated business form, a transfer of the interest of persons, firms or
entities responsible for managerial control of Tenant by sale, assignment,
bequest, inheritance, operation of law or other disposition, so as to result in
a change in the present control of said entity and/or change in the identity of
the persons responsible for the general credit obligations of said entity, shall
constitute an assignment for all purposes of this Lease.
E. Liability. No assignment or subletting by Tenant shall relieve Tenant
of any obligation under this Lease. Any assignment of subletting which conflicts
with the provisions hereof shall be void.
22. AUTHORITY OF PARTIES. Landlord represents and warrants that it has full
right and authority to enter into this lease and to perform all of Landlord's
obligations hereunder. Tenant represents and warrants that it has full right and
authority to enter into this Lease and to perform all of Tenant's obligations
hereunder.
23. CONDEMNATION.
A. Condemnation Resulting in Termination. If the whole or any substantial
part of the project of which the Premises are a part should be taken or
condemned for any public use under governmental law, ordinance or regulation, or
by right of eminent domain, or by private purchase in lieu thereof, and the
taking would prevent or materially interfere with the Permitted Use of the
Premises, this Lease shall terminate and the Rent shall be abated during the
unexpired portion of this Lease, effective when the physical taking of said
Premises shall have occurred. If more than five percent (5%) of the floor area
of the Premises or thirty percent (30%) of the land area of the Project which is
not occupied by any building is taken by condemnation, Tenant may, at Tenant's
option, terminate this lease as of the date the condemning authority takes such
possession, which option is to be exercised, if at all, by written notice
thereof to Landlord within ten (10) days after Landlord has given Tenant written
notice of such taking (or in the absence of such notice, within ten (10) days
after the condemning authority shall have taken possession).
B. Condemnation Not Resulting in Termination. If a portion of the Project
of which the Premises are a part should be taken or condemned for any public use
under governmental law, ordinance, or regulation, or by right of eminent domain,
or by private purchase in lieu thereof, and this Lease is not terminated as
provided in paragraph 23.A. above, this Lease shall not terminate, but the Rent
payable hereunder during the unexpired portion of the Lease shall be reduced,
beginning on the date when the physical taking shall have occurred, to such
amount as may be fair and reasonable under all of the circumstances.
C. Award. Landlord shall be entitled to any and all payment, income,
rent, award, or any interest therein whatsoever which may be paid or made in
connection with such taking or conveyance, and Tenant shall have no claim
against Landlord or otherwise for the value of any unexpired portion of this
Lease. Notwithstanding the foregoing any compensation specifically awarded
Tenant for loss of business. Tenant's personal property, moving costs or loss of
goodwill shall be and remain the property of Tenant.
24. CASUALTY DAMAGE
A. General. If the Premises or Building should be damaged or destroyed by
fire, tornado or other casualty, Tenant shall give immediate written notice
thereof to Landlord. Within thirty (30) days after Landlord's receipt of such
notice Landlord shall notify Tenant whether in Landlord's opinion such repairs
can reasonably be made either (1) within ninety (90) days; (2) in more than
ninety (90) days but in less than one hundred eighty (180) days or (3) in more
than one hundred eighty (180) days from the date of such notice. Landlord's
determination shall be binding on Tenant.
B. Less Than 90 Days. If the Premises or Building should be damaged by
fire, tornado or other casualty, but only to such extent that rebuilding or
repairs can in Landlord's estimation be reasonably completed within ninety (90)
days after the date of such damage, this Lease shall not terminate and provided
that insurance proceeds are available to fully repair the damage, Landlord shall
not be required to rebuild, repair or replace any part of the partitions,
fixtures, additions and other leasehold improvements which may have been placed
in, on or about the Premises. If the Premises and untenantable in whole or in
part following such damage, the Rent payable hereunder during the period in
which they are untenantable shall be abated proportionately, to the extent the
Premises are unfit for occupancy.
C. Greater Than 90 Days. If the Premises or Building should be damaged by
fire, tornado or other casualty, but only to such extent that rebuilding or
repairs can in landlord's estimation be reasonably completed in more than ninety
(90) days but in less than one hundred eighty (180) days, then Landlord shall
have the option of either (1) terminating the Lease effective upon the date of
the occurrence of such damage, in which event the Rent shall be abated during
the unexpected portion of the Lease; or (2) electing to rebuild or repair the
Premises to substantially the condition in which they existed
prior to such damage, provided that insurance proceeds are available, to fully
repair the damage, except that Landlord shall not be required to rebuild, repair
or replace any part of the partitions, fixtures, additions and other
improvements which may have been placed in, on or about the Premises. If the
Premises are untenantable in whole or in part following such damage, the Rent
payable hereunder during the period in which they are untenantable shall be
abated proportionately, to the extent the PRemises are unfit for occupancy. In
the event that Landlord should fail to complete such repairs and rebuilding
within one hundred eighty days (180) days after the date upon which landlord is
notified by Tenant of such damage, such period of time to be extended for delays
caused by the fault or neglect of Tenant or because of acts of God, acts of
public agencies, labor disputes, strikes, fires, freight embargoes, rainy or
stormy weather, inability to obtain materials, supplies or fuels, or delays of
the contractors or subcontractors or any other causes or contingencies beyond
the reasonable control of Landlord, Tenant may at Tenant's option within ten
(10) days after the expiration of such one hundred eighty (180) day period 9as
such may be extended), terminate this Lease by delivering written notice of
terminate thirty (30) days after Landlord's receipt of such termination notice.
D. Greater Than 180 Days. If the Premises or Building should be so
damaged by fire, tornado or other casualty that rebuilding or repairs cannot on
Landlord's estimation be completed within one hundred eighty (180) days after
such damaged, this Lease shall terminate and the Rent shall be abated during the
unexpired portion of this Lease, effective upon the date of the occurrence of
such damage.
E. Tenant's Fault. If the Premises or any other portion of the Building
are damaged by fire or other casualty resulting from the fault, negligence, or
beach of this Lease by Tenant or any of Tenant's Parties, Base Rent and
Additional Rent shall not be diminished during the repair of such damage and
Tenant shall be liable to Landlord for the cost and expense of the repair and
restriction of the Building caused thereby to the extent such cost and expense
is not covered by insurance proceeds.
F. Uninsured Casualty. Notwithstanding anything to the contrary, in the
event that the premises or Building are damaged or destroyed and are not fully
covered by the insurance proceeds received by Landlord or in the event that the
holder of any indebtedness secured by a mortgage or deed of trust covering the
Premises requires that the insurance proceeds be applied to such indebtedness,
then in either case Landlord shall have the right to terminate the Lease by
delivering written notice of termination to Tenant within thirty (30) days after
the date of notice to Landlord that said damage or destruction is not fully
covered by insurance or such requirement is made by any such holder as the case
may be, whereupon all rights and obligations hereunder shall cease and
terminate.
G. Waiver. Except as otherwise provided in this Paragraph 24, Tenant
hereby waives the provisions of Sections 1932(a), 1933(4), 1941 and 1942 of the
Civil Code of California.
25. HOLDING OVER. If Tenant shall retain possession of the Premises or any
portion thereof without Landlord's consent following the expiration of the Lease
or sooner termination for any reason, then Tenant shall pay to Landlord for each
day of such retention double he amount of the daily rental as of the last month
prior to the date of expiration or termination. Tenant shall also indemnity
defend, protect and hold Landlord harmless from any loss, liability or cost,
including reasonable attorney's fees, resulting from delay by Tenant in
surrendering the Premises, including, within limitation, any claims made by the
succeeding tenant founded on such delay. Acceptance of Rent by Landlord
following expiration or termination shall not constitute a renewal of this
Lease, and nothing container in this Paragraph 25 shall waive Landlord's right
of re-entry or nay other right. Unless landlord consents in writing to Tenant's
holding over. Tenant shall be only a Tenant at sufferance, whether or not
Landlord accepts any Rent from Tenant is holding over without Landlord's written
consent. Additionally, in the event that upon termination of the Lease, Tenant
has not fulfilled its obligation with respect to repairs and cleanup of the
Premises or any of the Tenant obligations as set forth in this Lease, then
Landlord shall have the right to perform any such obligation as it deems
necessary at Tenant's sole cost and expense, and Tenant shall be liable for all
damages caused thereby, including without limitation, liability to any new
Tenant or occupant of the Premises or any part thereof and lost rent which
landlord will suffer due to delay in making the Premises available for
alterations and/or occupancy by the next tenant or occupant.
25 DEFAULT.
A. Events of Default. The occurrence of any of the following shall
constitute an event of default on the part of Tenant:
(1) Abandonment. Abandonment of the Premises for a continuous period
in excess of five (5) days, unless Tenant is paying all Rent when due hereunder.
Tenant waives any right to notice Tenant may have under Section 1951.3 of the
Civil Code of the State of California, the Terms of this paragraph 26.A. being
deemed such notice to Tenant as required by said Section 1951.3
(2) Nonpayment of Rent. Failure to pay any installment of Rent or any
other amount due payable hereunder upon the date when said payment is due.
(3) Other Obligations. Failure to perform any agreement or convenant
under this Lease other than those matters specified in subparagraphs (1) and (2)
of this Paragraph 26.A. such failure continuing for thirty 930) days after
written notice of such failure.
(4) General Assignment. A general assignment by Tenant for the
benefits of creditors.
(5) Bankruptcy. The filing of any voluntary petition in bankruptcy by
Tenant, or the filing of an involuntary petition by Tenant's creditors, which
involuntary petition remains undischarged for a period of thirty (30) days. In
the event that under applicable law the trustee in bankruptcy or Tenant has the
right to affirm this Lease and continue to perform the obligations of Tenant
hereunder, such trustee or Tenant shall, in such time period as may be permitted
by the bankruptcy court having jurisdiction, cure all defaults of Tenant
hereunder outstanding as of the affirmation of this Lease and provide to
LAndlord such adequate under this Lease.
(6) Receivership. The employment of a receiver to take possession of
substantially all of Tenant's assets or the Premises, if such appointment
remains undismissed or undischarged for a period of ten (10) days after the
order therefor.
(7) Attachment. The attachment execution or other judicial seizure of
all or substantially all of Tenant's assets or the Premises if such attachment
or other seizure remains undismissed or undischarged for a period of ten 910)
days after the levy thereof.
B. Remedies Upon Default.
(1) Termination. In the event of the occurence of any event of
default, Landlord shall have the right to give a written termination notice to
Tenant, and on the date specified in such notice, Tenant's right to possession
shall terminate, and this Lease shall terminate unless on or before such date
all arrears of rental and all other sums payable by Tenant under this Lease and
all costs and expenses incurred by or on behalf of Landlord hereunder shall have
been fully remedied to the satisfaction of Landlord. At any time after such
termination, Landlord may recover possession of the Premises or any part thereof
and expel and reserve therefrom Tenant and any other person occupying the same,
by any lawful means, and again repossess and enjoy the Premises without
prejudice to any of the remedies that Landlord may have under this Lease, or at
law or equity by reason of Tenant's default or of such termination.
(2) Continuation After Default. Even though an event of default may
have occured, this Lease shall continue in effect for so long as Landlord does
not terminate Tenant's right to possession under Paragraph 26.B(1) hereof and
Landlord may enforce all of Landlord's rights and remedies under this Lease,
including without terminating this Lease, may exercise all of the rights and
remedies of a landlord under Section 1951.4 of the Civil Code of the State of
California or any successor code section. Acts of maintenance, preservation of
efforts to lease shall not constitute an election to terminate Tenant's right to
possession.
C. Damages After Default. Should Landlord Terminate this Lease pursuant
to the provisions of Paragraph 26.B.(1) hereof, Landlord shall have the rights
and remedies of a Landlord provided by Section 1951.2 of the Civil Code of the
State of California, or Successor code sections. Upon such termination, in
addition to any other rights and remedies to which Landlord may be entitled
under applicable law, Landlord shall be entitled to recover for Tenant: (1) the
worth at the time of award of the unpaid Rent and other amounts which ha? ????
earned at the time of termination, (2) the worth at the time of award of the
amount by which ?? unpaid Rent which would have been earned after termination
until the time of award exceeds the amount of such Rent loss that the Tenant
proves could have been reasonably avoided: (3) the worth at the time of award of
the amount by which the unpaid Rent for the balance of the Term after the time
of award exceeds the amount of such Rent loss that the Tenant proves could be
reasonably avoided, and (4) any other amount necessary to compensate Landlord
for all the detriment approximately caused by Tenant's failure to perform,
Tenant's obligations under this Lease or which, in the ordinary course of
things, would be likely to result therefrom. The "worth at the time of award" of
the amounts from time to time by Wells Fargo Bank, N.A. (San Francisco), plus
five (5) percentage points, or the maximum interest rate allowed by law
("Applicable Interest Rate"). The "worth at the time of award" of the amount
referred to in (3) above shall be computed by discounting such amount at the
Federal Discount Rate of the Federal Reserve Bank of San Francisco at the time
of the award. If this Lease provides for any periods during the Term during
which Tenant is not required to pay Base Rent if Tenant otherwise receives a
rent concession, then upon the occurence of an event of default, Tenant shall
owe to Landlord the full amount of such Base Rent or value of such Rent or Rent
concession would have been payable
D. Late Charge. If any installments of Rent is not paid within five (5)
working days after same is due, such amount shall bear interest at the
Applicable Interest Rate from the date on which said
payment shall be due until the date on which Landlord shall receive said
payment. In addition, Tenant shall pay Landlord a late charge equal to five
percent (5%) of the delinquency, to compensate Landlord for the loss of the use
of the amount not paid and the administrative costs caused by the delinquency,
the parties agreeing that Landlord's damage by virtue of such delinquencies
would be difficult to compute and the amount stated herein represents a
reasonably estimate thereof. This provision shall not relieve Tenant of Tenant's
obligation to pay Rent at the time and in the manner herein specified.
E. Remedies Cumulative. All rights, priviledges and elections or remedies
of the parties are cumulative and not alternative, to the extent permitted by
law and except as otherwise provided herein.
27. LIENS. Tenant shall keep the Premises free from liens arising out of or
related to work performed, materials or supplies furnished or obligations
incurred by Tenant or in connection with work made, suffered or done by or on
behalf of Tenant in or on the Premises or Project. In the event that Tenant
shall not, within ten (10) days following the imposition of any such lien, cause
the same to be released of record by payment or posting of a proper bond,
Landlord shall have, in addition to all other remedies provided herein and by
law, the right, but not the obligation, to cause the same to be released by such
means as Landlord shall deem proper, including payment of the claim giving rise
to such lien. All sums paid by Landlord on behalf of Tenant and all expenses
incurred by Landlord in connection therewith shall be payable to Landlord by
Tenant on demand with interest at the Applicable Interest Rate. Landlord shall
have the right at all times to and keep posted on the Premises any notices
permitted or required by law, or which Landlord shall deem proper, for the
protection of Landlord, the Premises, the Project and any other party having an
interest therein, from mechanics' and materialmen's liens, and Tenant shall give
Landlord not less than ten (10) business days prior written notice of the
commencement of any work in the Premises or Project which could lawfully give
rise to a claim for mechanics' or materialmen's liens.
28. SUBSTITUTION. Intentionally Omitted.
29. TRANSFERS BY LANDLORD. In the event of a sale or conveyance by Landlord of
the Building or a foreclosure by any creditor of Landlord, the same shall
operate to release Landlord from any liability upon and obligate Landlord's
successor-in-interest to any of the covenants or conditions, express or implied,
herein contained in favor of Tenant, to the extent required to be performed
after the passing of title to Landlord's successor-in-interest during their
respective period of ownership. In such event, Tenant agrees to look solely to
the responsibility of the sucessor-in-interest of Landlord under this Lease with
respect to the performance of the covenants and duties of "Landlord" to be
performed after the passing of title to Landlord's successor-in-interest. This
Lease shall not be affected by any such sale and Tenant agrees to attorn to the
purchaser or assignee. Landlord's successor(s)-in-interest shall not have
liability to Tenant with respect to the failure to perform all of the
obligations of "Landlord", to the extent required to be performed prior to the
date such successor(s)-in-interest became the owner of the Building.
30. RIGHT OF LANDLORD TO PERFORM TENANT'S COVENANTS. All covenants and
agreements to be performed by Tenant under any of the terms of this Lease shall
be performed by Tenant at Tenant's sole cost and expense and without any
abatement of Rent. If Tenant shall fail to pay any sum of money, other than Base
Rent and Basic Operating Cost, required to be paid by Tenant hereunder or shall
fail to perform any other act on Tenant's part to be performed hereunder, and
such failure shall continue for five (5) days after notice thereof by Landlord,
Landlord may, but shall not be obligated to do so, and without waiving or
releasing Tenant from any obligations of Tenant, make any such payment or
perform any such act on Tenant's part to be made or performed. All sums so paid
by Landlord and all necessary incidental costs, together with interest thereon
at the Applicable Interest Rate from the date of such payment by Landlord, shall
be payable to Landlord on demand, and Tenant covenants to pay such sums, and
Landlord shall have, in addition to any other right or remedy of Landlord, the
same rights and remedies in the event of the non-payment thereof by Tenant, as
in the case of default by Tenant in the payment of Base Rent and Basic Operating
Cost.
31. WAIVER. If either Landlord or Tenant waives the performance of any term,
covenant or condition contained in this Lease, such waiver shall not be deemed
to be a waiver of any subsequent breach of the same or any other term, covenant
or condition contained herein. The acceptance of Rent by Landlord shall not
constitute a waiver of any preceding breach by Tenant of any term, covenant of
condition of this Lease for any length of time shall not be deemed to waive or
to decrease the right of Landlord to insist thereafter upon strict performance
by Tenant. Waiver by Landlord or Tenant of any term, covenant or condition
contained in this Lease may only be made by a written document signed by
Landlord or Tenant, respectively.
32. NOTICES. Each provision of this Lease or of any applicable governmental
laws, ordinances, regulations and other requirements with reference to sending,
mailing or delivery of any notice or the making of any payment by Landlord or
Tenant to the other shall be deemed to be complied with when and if the
following steps are taken.
A. RENT. All Rent and other payments required to be made by Tenant to
Landlord hereunder shall be payable to Landlord at the address set forth in the
Basic Lease Information, or at
such other address as Landlord may specify from time to time by written notice
delivered in accordance herewith. Tenant's obligation to pay Rent and any other
amounts to Landlord under the terms of this Lease shall not be deemed satisfied
until such Rent and other amounts have been actually received by Landlord.
B. Other. All notices, demands, consents and approvals which may or are
required to be given by either party to the other hereunder shall be in writing
and either personally delivered, sent by commercial overnight courier, or
mailed, certified or registered, postage prepaid, and addressed to the party to
be notified at the address for such party as specified in the Basic Lease
Information or to such other place as the party to be notified may from time to
time designate by at least fifteen (15) days notice to the notifying party.
Notices shall be deemed served upon receipt or refusal to accept delivery.
Tenant appoints as its agent to receive the service of all default notices and
notice of commencement of unlawful detainer proceedings the person in charge of
or apparently in charge of occupying the Premises at the time, and, if there is
no such person, then such service may be made by attaching the same on the main
entrance of the Premises.
33. ATTORNEYS' FEES. In the event that Landlord places the enforcement of this
Lease, or any part thereof, or the collection
34. SUCCESSORS AND ASSIGNS. This Lease shall be binding upon and inure to the
benefit of Landlord, its succesors and assigns, and shall be binding upon and
inure to the benefit of Tenant, its successors, and to the extent assignment is
approved by Landlord hereunder, Tenant's assigns.
35. FORCE MAJEURE. Whenever a period of time is herein prescribed for action to
be taken by Landlord or Tenant, such party shall not be liable or responsible
for, and there shall be excluded from the computation for any such period of
time, any delays due to strikes, riots, acts of God, shortages of labor or
materials, war, governmental laws, regulations or restrictions or any other
causes of any kind whatsoever which are beyond the control of such party
(financial inability to perform excepted); provided, however, that nothing
contained in this Section 35 shall excuse or delay the proper and timely payment
of Rent by Tenant to Landlord.
36. BROKERAGE COMMISSION. Landlord shall pay a brokerage commission to Broker in
accordance with a separate agreement between Landlord and Broker. Tenant
warrants to Landlord that Tenant's sole contact with Landlord or with the
Premises in connection with this transaction has been directly with Landlord and
Broker, and that no other broker or finder can properly claim a right to a
commission or a finder's fee based upon contacts between the claimant and Tenant
with respect to Landlord and Premises. Tenant shall indemnify defend by counsel
acceptable to Landlord, protect and hold Landlord harmless from and against any
loss, cost or expense, including, but not limited to, attorneys' fees and costs,
resulting from any claim for a fee or commission by any broker or finder which
claims it has dealt with or has a relationship with Tenant in connection with
the Premises and this Lease other than Broker.
37. MISCELLANEOUS.
A. General. The term "Tenant" or any pronoun used in place thereof shall
indicate and include the masculine or feminine the singular or plural number,
individuals, firms or corporations, and their respective successors, executors
administrators and permitted assigns, according to the context thereof.
B. Time. Time is of the essence regarding this Lease and all of its
provisions.
C. Choice of Law. The Lease shall ???? all respects be governed by the
laws of the State of California.
D. Entiro Agreement. This Lease together with its Exhibits, supersedes in
its entirety the Lease between Landlord and Tenant also dated December 19, 1997,
containing typewritten and handwritten inserts and cross-outs. The purpose of
this Lease is to restate said Lease in its entirety, and this Lease contains all
the agreements of the parties hereto and supersedes any previous negotiations.
There have been no representations made by the Landlord or understandings made
between the parties other than those set forth in this Lease and its Exhibits.
E. Modification. This Lease may not be modified except by a written
instrument by the parties hereto.
F. Severability. If, for any reason whatsoever, any of the provisions
hereof shall be unenforceable or ineffective, all of the other provisions shall
be and remain in full force and effect.
G. Recordation. Tenant shall not record this Lease or a short form
memorandum hereof.
H. Examination of Lease. Submission of this Lease to Tenant does not
constitute an option or offer to lease and this Lease is not effective otherwise
until execution and delivery by both Landlord and Tenant.
I. Accord and Satisfaction. No payment by Tenant of a lesser amount than
the Rent nor any endorsement on any check or letter accompanying any check or
payment of Rent shall be deemed an accord and satisfaction of full payment of
Rent, and Landlord may accept such payment without predjudice to Landlord's
right to recover the balance of such Rent or to pursue other remedies.
J. Easements. Landlord may grant easements on the Project and dedicate
for public use portions of the Project without Tenant's consent, provided that
no such grant or decision shall substantially interfere with Tenant's use of the
Premises. Upon Landlord's demand, Tenant shall execute, acknowledge and deliver
to Landlord documents, instruments, maps and placs necessary to effectuate
Tenant's covenants hereunder.
K. Drafting and Determination Presumption. The parties acknowledge that
this Lease has been agreed to by both parties, that both Landlord and Tenant
have constituted with or had the opportunity to consult with attorneys with
respect to the terms of this Lease and that no presumption shall be created
against Landlord because Landlord drafted this Lease. Except as otherwise
specifically set forth in this Lease, with respect to any consent, determination
or estimation of Landlord required in this Lease or requested of Landlord.
Landlord's consent, determination or estimation shall be made in Landlord's good
faith opinion, whether objectively reasonable or unreasonable.
L. Exhibits. Exhibits A, B, C, D, E and F attached hereto are hereby
incorporated herein by this reference.
M. No Light, Air or View Easement. Any diminution or shutting off of
light, air or view by any structure which may be erected on lands adjacent to or
in the vicinity of the Building shall in no way affect this Lease or impose any
liability on Landlord.
N. No Third Party Benefit. this Lease is a contract between Landlord and
Tenant and nothing herein is intended to create any third party benefit.
38. ADDITIONAL PROVISIONS.
First Addendum to Lease
Exhibit "A" Floor Plan
Exhibit "B" Work Letter
Exhibit "C" Standard Specifications
Exhibit "D" Atherton Center Sign Policy
Exhibit "E" Rules and Regulations
Exhibit "F" Hazardous Materials/Wastes
IN WITNESS WHEREOF, the parties hereto have executed this Lease the day and year
first above written.
"Landlord"
STANFORD RANCH I, LLC
By: /s/ Larry D. Kelley
----------------------------------------------
Name: Larry D. Kelley
----------------------------------------
Title: President
----------------------------------------
"Tenant"
SPECTRIAN CORPORATION
By: /s/ Stephen B. Greenspan
---------------------------------------------
Stephen B. Greenspan, Chief Operating Officer
By:
---------------------------------------------
Name:
----------------------------------------
Title:
----------------------------------------
EXHIBIT A - SITE PLAN
MAP OF
PROPOSE OFFICE/INDUSTRIAL BLDG.
SITE PLAN
STANFORD RANCH DEVELOPMENT
LOT #10
EXHIBIT A
FLOOR PLAN
(TO BE ATTACHED)
EXHIBIT B
WORK LETTER
This Work Letter shall set forth the terms and conditions relating to
the construction of the tenant improvements in the Premises. This Work Letter is
essentially organized chronologically and addresses the issues of the
construction of the Premises, in sequence, as such issues will arise during the
actual construction of the Premises.
SECTION 1
CONSTRUCTION DRAWINGS FOR THE PREMISES
Landlord shall cause the improvements in the Premises (the "Tenant
Improvements") to be constructed, at Landlord's sole cost and expense, pursuant
to the specifications outlined in the preliminary drawings as prepared by CHMD
dated November 6, 1997, as shown on Exhibit "A". Tenant shall make no changes or
modifications to the Approved Working drawings without the prior written consent
of Landlord, which consent may be withheld in Landlord's sole discretion if such
change or modification would directly or indirectly delay the Substantial
Completion, as that term is defined in Section 2.1 of this Work Letter, of the
Premises or increase the cost of designing or constructing the Tenant
Improvements. In the event Tenant makes changes to Exhibit "A" causing
allowances to exceed that in Paragraph 5 of the First Addendum Lease, such
excess shall be amortized as noted in Paragraph 5 of the First Addendum Lease
contained herein.
SECTION 2
COMPLETION OF THE TENANT IMPROVEMENTS:
COMMENCEMENT DATE
2.1 Ready for Occupancy. The Premises shall be deemed "Ready for
Occupancy" upon the Substantial Completion of the Premises. For purposes of this
Lease "Substantial Completion" of the Premises shall occur upon the completion
of construction of the Tenant Improvements in the Premises pursuant to the
Approval Working Drawings, with the exception of any punch list items and any
tenant fixtures, work-stations, built-in furniture, or equipment to be installed
by Tenant or under the supervision of the Contractor.
2.2 Delay of the Substantial Completion of the Premises. Except as
provided in this Section 2.2, the Commencement Date shall occur by June 1, 1998.
If there shall be a delay or there are delays in the Substantial Completion of
the Premises or in the occurrence of any of the other conditions precedent to
the Commencement Date, as set forth in the Base Lease Information of the Lease,
as a direct, indirect, partial, or total result of the following (collectively,
"Tenant Delays")
2.2.1 Tenant's failure to timely approve any matter requiring
Tenant's approval;
2.2.2 A breach by Tenant of the terms of this Work Letter or
the Lease.
2.2.3 Tenant's request for changes in the Approved Working
Drawings;
2.2.4 Changes in any of the Approved Working Drawings because
the same do not comply with applicable laws;
2.2.5 Tenant's requirement for materials, components, finishes
or improvements which are not available in a commercially reasonable time given
the anticipated Commencement Date, as set forth in the Lease, or which are
different from, or not included in Landlord's standard improvement package items
for the Building.
2.2.6 Changes to the base, shell and core work of the Building
required by the Approved Working Drawings or any changes thereto; or
2.2.7 Any other acts or omissions of Tenant or its agents, or
employees;
then, notwithstanding anything to the contrary set forth in the Lease or this
Work Letter and regardless of the actual date of the Substantial Completion of
the Premises, the Commencement Date shall be deemed to be the date the
Commencement Date would have occurred if no Tenant Delay or Delays, as set forth
above, had occurred, subject to receiving a Temporary Certificate of Occupancy.
SECTION 3
MISCELLANEOUS
3.1 Tenant's Entry into the Premises Prior to Substantial Completion.
Provided that Tenant and its agents do not interfere with Contractor's work in
the Building and the Premises Contractor shall
allow Tenant access to the Premises prior to the Substantial Completion of the
Premises for the purposes of Tenant installing equipment or fixtures (including
Tenant's data and telephone and other items) in the Premises. Prior to Tenant's
entry into the Premises as permitted by the terms of this Section, Tenant shall
submit a schedule to Landlord and Contractor, for their approval, which schedule
shall detail the timing and purpose of Tenant's entry. Tenant shall hold
Landlord harmless from and indemnify, protect and defend Landlord against any
loss or damage to the Building or Premises and against injury to any persons
caused by Tenant's actions pursuant to this Section.
3.2 Tenant's Agents. All subcontractors, laborers, materialmen, and
suppliers retained directly by Tenant shall conduct their activities in and
around the Premises. Building and Property in a harmonious relationship with all
other subconstractors, laborers, materialmen and suppliers at the Premises,
Building and Property.
3.3 Time of the Essence in This Work Letter. Unless otherwise
indicated, all references herein to a "number of days" shall mean and refer to
calendar days. In all instances where Tenant is required to approve or deliver
an item, if no written notice of approval is given or the item is not delivered
within the stated time period, at Landlord's sole option, at the end of such
period the item shall automatically be deemed approved or delivered by Tenant
and the next succeeding time period shall commence.
3.4 Tenant's Lease Default. Notwithstanding any provision to the
contrary contained in the Lease, if a Default by Tenant as described in Section
26 of this Lease, or a default by Tenant under this Work Letter, has occurred at
any time on or before the Substantial Completion of the Premises, then (i) in
addition to all other rights and remedies granted to Landlord pursuant to this
Lease. Landlord shall have the right to cause Contractor to cease the
construction of the Premises (in which case Tenant shall be responsible for any
delay in the Substantial Completion of the Premises caused by such work stoppage
as set forth in Section 5 of this Work Letter), and (ii) all other obligations
of Landlord under the terms of this Work Letter shall be forgiven until such
time as such default is cured pursuant to the terms of the Lease.
Agreed and Acknowledged:
LANDLORD: STANFORD RANCH I, LLC
BY: /s/ ??????????????????????? DATE:
------------------------------- -------------------------
ITS: President
------------------------------
TENANT: SPECTRIAN INC.
BY: /s/ ??????????????????????? DATE: 1/23/98
------------------------------- -------------------------
ITS: Chief Operating Officer
------------------------------
BY: DATE:
------------------------------- -------------------------
ITS:
------------------------------
Exhibit C
Stanford Business Park
Standard Specifications
I. Walls
A. Demising Walls
1. Framing
a. Demising wall shall be framed from finished floor to the
underside of the roof deck. All demising walls shall be
attached at top to the roof deck and to the floor.
b. All demising walls shall be framed with a stud of sufficient
size, gauge and at a spacing such that diagonal bracing is
not required. Walls to a height of 16'0" shall be framed
with 3-5/8" 20 GA. metal studs at 2'-0" on center. Walls to
heights from 16'0" to 25'-4" shall be framed with 6" 18 GA.
metal studs at 16" on center. Walls above 25'-4" shall be
framed with 6" 20 GA. metal studs at 16" and/or ??" as
required per the Table For Non-bearing Screwable Steel Studs
and Joists contained in the ICBO Report #2274.
2. Gypsum Wall Board
a. All shall be 5/8" Type "X" gypsum board. Fire side finish.
U.O.N. Gypsum wall board shall be placed on the opposite
side U.O.N.
b. Insulate walls for sound absorption R-11.
B. Interior Office Walls
1. Framing
a. Interior walls shall be framed to either 6" above the
finished ceiling or to the ceiling grid. If to the grid, all
walls to receive edging for conformity of appearance.
b. Perimeter office walls shall be framed full ???? to roof
deck. Sheetrock applied both sides to 6" above grid and to
warehouse side only balance of the frame. See Demising Walls
above for requirements.
c. Insulate walls for sound absorption R-11.
2. Gypsum Wall Board
a. All shall be 5/8" Type "X" gypsum board.
3. Furred Walls
a. Furred walls to be insulated with R-13.
C. Wall Finishes
1. All office walls shall be textured with a light spray texture.
Walls shall be scaled and painted with two coats of latex flat.
Paint to be Kelly-Moore, Product #555. Verify color with Tenant
and Owner.
2. Restroom walls shall be textured with a light spray texture.
Wainscot at 4'-0" shall be flat white "Marlite," with brushed
aluminum trim. All restroom ceilings shall be 8' U.O.N. All
restroom walls and ceilings shall receive two coats semi-gloss
enamel finish paint with light spray texture. Verify color with
Owner. All restroom walls to be sound insulated with P.
D. All door openings shall use 16-gauge king stud.
II. CEILINGS
A. Restrooms
1. Framing shall be 4" 25 GA. metal joist at 1'-4" on center.
Maximum span 8"-9". For spans in excess of 8"-9" refer to the
tables shown on the plans.
2. Ceilings shall be covered with 5/8" type "X" gypsum board.
3. Finish shall be light spray texture with two coats semi-gloss
latex paint.
4. Insulate wall with R-11 insulation. Insulate ceiling with R-19
insulation.
5. Ceiling height shall be 8'-0" above finished floor.
B. Office
1. Ceilings shall be 2' x 4' T-bar white suspended ceiling system.
10' above finished floor.
2. Ceiling tiles
a. Standard shall be Second Look II Acoustical ceiling tile by
Armstrong at 9'-0" above fininshed floor in office area and
10' in tech area or at top of storefront if higher. Provide
shims, routered edges and detailing per manufacturer's
specs.
b. Alternate shall be Standard Fissured tiles for large work
areas. This title shall be used only when indicated on the
plans.
3. Provide R-19 unfaced fiberglass insulation above all lay-in
ceilings. Cut in insulation around light fixtures. If roof
insulation is existing or specified on the plans, consult with
Lincoln Property Company representatives to determine if lay-in
ceiling insulation above grid is required.
4. Provided Seismic Compression Posts as required by code. All
ceiling fixtures shall be supported per U.B.C. standards.
III. FLOOR COVERINGS
A. Office
1. Carpet shall be either "Shaw" or "Designweave" 26 oz. yarn weight
textured loop or 32 oz. yarn weight cut pile in lobby area only.
Verify color and choice with Owner. All carpet shall receive
2-1/2" rubber top set base U.O.N.
2. Sheet Vinyl shall be Armstrong "Classic Corlon Commercial Sheet
Flooring" or approved equivalent with 6" coving or approved
equal. Verify color with Owner.
3. Vinyl Composition Tile shall be Armstrong "Standard Exoclon" or
approved equivalent with 2-1/2" Rubber base or approved equal.
Verify color with Owner.
B. Warehouse
1. Warehouse floors shall be sealed with a chlorinated rubber
sealer. Contractor shall verify the condition of the existing
floors prior to submitting proposals.
IV. DOORS
A. Door Frames
1. All door frames to be Timely pre-finished frames. Finish to match
storefronts unless otherwise noted. All frames shall be provided
with a one (1) hour fire
rating. Frames shall have a standard certificate plate indicated
the one (1) hour rating.
B. Interior Doors
1. Interior doors shall be 3'-0" x 7'0". Doors shall be paint grade
plair by CalWood. All doors shall be supplied with 20-minute
label.
C. Hardware
1. Latchsets (no lock) to be Schlage "Levon" "A" series (626) satin
bronze finish.
2. Hinges to match hardware finish. Provide 1-1/2 pair for each
door.
3. Doors to be installed in a rated condition (1-hour condition
required by code) shall be installed with a closer. Closer shall
be 1.CN#1-160#1 aluminum finish to match door hardware unless
otherwise noted.
4. All private offices shall receive coat hook on back of door,
Ameruck EP 3460-26.
V. RESTROOM ACCESSORIES
A. All restrooms to include the following accessories:
1. Towel Dispenser shall be surface mounted stainless steel. Provide
Bobrich #B262, McKinney Parker #610 or approved equal.
2. Seat Cover Dispenser shall be surface mounted stainless steel.
Provide Bobrich #B221, McKinney Parker #610 or approved equal.
3. Toilet Paper Dispenser shall be Bobrich #B-2740 or approved
equal.
4. Mirror. Bobrich #B165 or approved equal. Size shall be 24" x 36".
5. Grab bars. Bobrich #B6806, 36" and 42" or approved equal.
6. Feminine Napkin Disposal shall be surface mounted stainless
steel. Provide McKinney Parker #610 or approved equal. (Woman's
restroom only.)
VI. PLUMBING
A. All water piping shall be copper U.O.N. All hot water piping shall be
insulated with Armaflex form insulation.
B. Water closets to be American Standard elongated water saver Cadet
#2108418 and Olsonite #95 or approved equal.
C. Urinals to be American Standard - water saver Allbrook Urinal
#65-40.017 w/Sloart Royal #180-15 flush valve or approved equal.
D. Lavatories to be American Standard Lucern lavatory #0355.012 wall hung
with 2103.620 faucet with 4" wrist blade handles or approved equal.
Lavatories in counter top shall be American Standard "Horizon
Lavatory: #?????.025 with 2103.1459 faucet with 4" wrist blade handles
and pop-up drain. Verify color of counter with Owner.
E. Hospitality sink when called for shall be Elkay #1.R-1918 19" x 18" x
7-12" D stainless steel bar sink with LK-2223 deluxe two handle bar
faucet with 9" high traditional swing spount and LK-367 small basket
strainer. Sink shall be installed in plastic laminate counter unless
otherwise noted.
F. Drinking fountain when called for shall be Haws barrier free water
cooler model #11CBF7.
G. Service sink when called for shall be American Standard "Lakewell"
#7692.023 with 8769.018 rim board and 8340.242 faucet.
H. All hot water heaters to be National Steel Construction or approved
equal.
I. Showers where called for. Handicapped, prefabricated Kimstock
Southwest, Inc. Verify model number with Owner.
J. All toilet partitions where called for shall be Sony Metal Normandie
or Knicherbocker New Yorker, baked enamel floor-braced with coat hook
and bumper. Verify color with owner.
K. Breakroom sink to have 1/2 HP (min.) garbage disposal.
L. Water main and branch lines to have valve shutoffs.
VII. ELECTRICAL
A. Designed and installed in accordance with the California Energy Act -
title 24, 225 amp, 208 volt service typical, 42 circuit distribution
panel.
B. Power distributed as required by Tenant for warehouse, assembly and
manufacturing equipment, appliance operating and special office
machinery shall be ceiling hung U.O.N. Subpanels and transformers
shall be located in the tenant space per code.
C. Warehouse. Flush mounted ('296 strip fluorescent light fixtures by
Lithonia or) approved equal in areas with open ceiling per Exhibit
"A".
D. Ceiling mounted fixture at restroom-Lithonia Wallens, #1.B240 120A
E. Other lighting as required by Tenant or code. Same light fixtures to
be used as called out in C. above except provided on 8' x 8' centers
for shipping/receiving area will be provided.
F. Provide ivory plates and covers for all power outlets, switches or
plates. Provide rings and pull wires at all telephone, computer and
cable (C.R.T.) outlets as indicated on plan. All switches to be at 46"
on center, all outlets to be at 18" on center, all warehouse outlets
at 26" on center. Provide stainless steel covers in manufacturing and
warehouse area.
G. Illuminated exit signs as required by Tenant or code.
H. Office lighting is by 2' x 4' recessed mounted fluorescent ceiling
fixtures, Lithonia 2GT340A12-277V or equal, approved by Owner, with
acrylic prism lens. Lighting to comply to T-24 Energy Standards.
Pattern shall by 8' x 8'.
I. 2-4" PVC chase and pull line for telephone from T.B.B. to T.1. space.
Provide 4' x 8' x 3/4' backboard at location shown on drawings.
J. Any switch gear used in Electric room that will impede future T.1.
additions is not permissible without prior written permission from
Landlord.
K. 1500 Amps/480 Volt/3-Phase power to be allocated to Spectrian. Of the
remaining 500 Amps/480 Volt/3-Phase power, Spectrian shall be entitled
to a pro rata share basis of this power should Spectrian expand into
the adjacent space in the future.
VIII. FINISHES/SPECIALTIES
A. Special office wall or floor finishes. See T.I. drawings for
specifications.
B. Lunch room, conference room, coffee or wet bar cabinetry and plumbing
and appliances as required by Tenant.
C. Refer to tenant improvement plans for locations and specifications.
D. All exterior windows to receive 1" mini-blinds to be outside mounted
on the window mullion. Each mullion to receive one (1) mini-blind from
ceiling height to floor. Verify color and brand with Owner.
IX. FIRE SPRINKLERS
A. Designed in accordance with local coda. Sprinkler pipe drops ate extended
from existing fire lines is the roof structure Sprinkler beds are
semi-recessed dame with chrome color to finish. Fire bases, extinguisher
and detectors are provided as required by rode or tenant Sprinkler beads
shall be centered in 2 x 2 section of Z x 4 Second Look 11 ceiling tile.
HVAC PERFORMANCE Criteria
1. Load calculations for standard office space/manufacturing space/warehouse
space:
A. Use ASHRAE fundamentals summer design dry bulb temperature at 0.5%
B. Indoor design conditions art: to be 72 degree Fahrenheit 5O% R.H. for
summa and 70 degrees Fahrenheit for winter.
C. Lighting internal load allowance: 1.5 watts per square foot.
D. Miscellaneous equipment internal load allowance: 3.0 watts per square
foot.
E. People load allowance 120 square foot per person or actual covet.
whichever is greater
F. Minimum ventilation allowance: 20 CFM per person.
2. HVAC systems shall be fully zoned for exposure, usage and occupancy
3. All roof mounted HVAC units to be mounted above a glue-lam unless otherwise
approved structurally designed to accommodate load.
4. Toilet roams to be exhausted a 12 air changes per hour, exhausted to
exterior
5. Air conditioning equipment to be Carrier or Trane
6. Exhaust fans to be sized properly
7. Supply diffusers to be modular air core type; Thus, Metal-Air or equal.
8. HVAC ductwork to be metallic
9. Discharge and intake ductwork at air conditioning unit shall be internally
lined with 1" - 1-1/2 lb. per cubic foot vinyl face, black mark insulation
for sound attenuation (designed for proper acoustical attenuation).
10. Wrap all unlined concealed supply and return due with 2" 314 lb. per cubic
foot insulation and foil vapor carrier
11. Wire flexible duct is ONLY to be used at the supply/return outlet (maximum
length 10').
12. Rectangular elbows to be installed with directional vanes.
13. Rectangular taps to be constructed with a 45 degree upstream side.
14. All supply branches to have a manual volume dumper.
15. Support for all piping as duct-work shall be in accordance with SMACNA
"Guidelines for Seismic Restraints of Mechanical Systems."
16. Intentionally omitted.
17. Basic HVAC control system shall be Honeywell programmable time
clock-thermostat configuration.
18. Each thermostat is to be installed with a 3-hour by-pass timer for overtime
usage.
19. Air balance shall be done by the installing contractor and to provide
balance report to Tenant.
20. Mechanical contractor is b comply with all ASHRAE, SMACNA, UBC and local
code requirements.
21. All material and workmanship provided by mechanical contractor is to be
warranted to be free from defects for a period of one (I) year.
22. All gas meters to be approved by Landlord prior to selection.
23. All duct joints shall be sealed airtight.
24. Submit Title 24 plans, calls for permit.
25. Provide slot diffusers in lobby.
26. Fire/smoke dampers and detectors to be provided and installed by mechanical
contractor. To be constructed as per code.
27. Condensate drain to be approved receptacle/location
EXHIBIT D
ATHERTON CENTER SIGN POLICY
Tenant Suite Identification-- Window Graphics
Height:
Tenant: Copy - 4".
General Placement:
All copy centered onto glass area to the left or right of entrance door,
whichever appropriate.
Copy Placement:
5'0' from floor to middle of sign. Copy not to exceed a 3" margin on right
and left sides.
Material:
Vinyl
Color:
Matte white
Typeface:
Tenant copy - Century Bold, upper and lower cast. .
Copy:
Signage shall be limited to the name of the tenant, as detailed in the
lease, or the publicly recorded assumed business name of the tenant, and
shall not include a descriptive advertisement.
Responsibility:
Tenant: signage shall be paid by the tenant
EXHIBIT "E"
RULES AND REGULATIONS
1. Lessee shall not obstruct or interfere with the rights of other lessees of
the Project, or of persons having business in the Project, or in any way injure
or annoy such lees or persons.
2. Lessee shall not commit any as or permit anything in or about the Project
which shall or might subject Lessor to any liability or responsibility for
injury to any Pam or property by town of any business or operation being carried
on, in or about the Project or for any other reason.
3. Lessee shall not use the Project for lodging, sleeping, cooking, or for any
immoral or illegal purpose or for any purpose that will damage the Project, a
the reputation thereof, or for any purposes other than those specified in the
Lease.
4. Canvassing, soliciting and peddling in the Project are prohibited, and Lessor
shall cooperate to prevent such activities.
5. Lessee shall not bring or keep within the Project any animal, bicycle or
motorcycle
6. Except as expressly provided in this Lease, Lessee shall not cook or prepare
food, or place or use any inflammable, combustible, explosive or hazardous
fluid, chemical device, substance or material in or about the Project without
the prior written consent of Lessor. Lessee shall comply with all statutes,
ordinances, rules, orders, regulations and requirements imposed by governmental
or quasi-governmental authorities in connection with fire and panic safety and
fire prevention and shall not commit any act, or permit any object to be brought
or kept in the Project, which shall result in a change of the rating of the
Project. by the Insurance Services Office or any similar person or entity.
Lessee shall not commit any act or permit any object to be brought or kept in
the Project which :ball increase the rate of fire insurance on the Project or on
property located therein. Notwithstanding the fort-going, Lessee may cook with a
microwave oven for personal use of its employees
7. Lessee shall not conduct in or about the Project any suction, public or
private without the prior written approval of Lessor.
8. Lessee shall not install or use in the Project any air conditioning unit,
engine, boiler, generator, machinery, heating unit, stove, water cooler,
ventilator, radiator or any other similar apparatus without the express prior
written consent of Lessor, and then only is Lessor may direct.
9. All equipment and any other device of any electrical or mechanical nature
shall be placed by Lessee in the Premises in settings approved by Lessor, so is
to absorb or Prevent any vibration, noise or annoyance. Lessee shall not cause
improper noises, vibrations or odors within the Project.
10. Lessee shall not move or install such objects in or about the Project in
such to fashion as to unreasonably obstruct the activities of other lessees, and
all such moving shall be at the sole expense, risk and responsibility of Lessee.
11. Lessee shall not place within the Project any safes, copying machines,
computer equipment or other objects of unusual size or weight, nor shall Lessee
place within :e Project any objects which exceed the floor weight specifications
of the Profit without the express prior written consent of Lessor. The placement
and positioning of all such objects within the Project shall be prescribed by
Lessor and such objects shall, in all cases. :e placed upon plates or footings
of such size as shall be prescribed by Lessor.
12. Lessee shall not deposit trash, refuse, cigarettes, or other substances of
any kind within or out of the Project, except in the refuse. containers provided
therefore. Lessee shall not introduce into the Project any substance which might
add an undue burden to the cleaning or maintenance of the Premises or the
Project. Lessee shall exercise its best efforts to keep the sidewalks, entrances
passages courts, lobby areas, garages or parking areas, elevators, escalators,
stairways, vestibules, public corridors and halls in and about the Project
(hereinafter "Common Areas') dean and free from rubbish.
13. Lessee shall use the Common Areas only as a means of ingress and egress, and
Lessee shall permit no loitering by any persons upon Common Areas or elsewhere
within the Project. The Common Areas and roof of the Project are not for the use
of the general public, and Lessor shall in all cases retain the right to control
or prevent access thereto bur all persons whose presence, in the judgment of
Lessor, stall be prejudicial to the safety, character, reputation or interests
of the Project and its lessees. Lessee shall not eater the mechanical rooms, air
conditioning aroma, electrical closets, janitorial closets, or similar areas or
go upon the roof of the Project without the express prior written consent of
Lessor.
14. Lessor reserves the right to exclude or expel from the Project any person
who, in the opinion of Lessor, is intoxicated or trader the influence of liquor
or drugs or who shall in any manner act in violation of the rules and
regulations of the Project.
15. Lessor shall have the right to designate the area or areas, if any, in which
Lessee and Lessee's servants, employees, contractors, jobbers, agents,
licensees, invitees, guests ad visitors may park vehicles, and Lessee and its
servants, employees, contractors, jobber, agents, licensees, invitees, guests
and visitors and shall observe and comply with all driving and parking signs and
markers within and about the Project. All parking ramps and areas and any
pedestrian walkways, plazas o- other public areas forming a part of the Project
or the land upon which the Project is situated shall be under the sole and
absolute control o: Lessor who shall have the exclusive right to regulate and
control those areas.
16. Lessee shall not use the washrooms restrooms, and plumbing fixtures of the
Project and appurtenances thereto, for any other purpose than the purposes for
which they were constructed, and Lessee shall not waste water by interfering or
tampering with the faucets or otherwise. If Lessee or Lessee's servants,
employees, contractors, jobbers, agents, licensees, invitees, guests or visitors
case any damage to such washrooms, restrooms, plumbing fixtures or
appurtenances, such damage shall be repaired at Lessee's expense, and Lessor
shall not be responsible therefore.
17. Lessee shall not mark, paint, drill into, cut, string wires within, or in
any way defers any part of the Project, without the express prior written
consent of Lessor, and as Lessor may direct. Upon removal of any wall
decorations or installations or floor coverings by Lessee any damage to the
walls or floors shall be repaired by Lessee at Lessee's sole Cost and expense.
Without limitation upon any of the provisions of the Lease, Lessee shall refer
all contractor's representatives. installation technicians, janitorial workers
and other mechanics, artisans and laborers rendering any service in connection
with the repair, maintenance or improvement of the Premises to Lessor for
Lessor's supervision, approval and control before performance of any such
service. This Paragraph 17 shall apply to all work performed in the Project,
including attachments and installations of any nature affecting floors, walls,
woodwork, trim, windows, ceilings, equipment or any other portion of the
Project. Plans and specifications for such work, prepared at Lessee's sole
expense sail be submitted to Lessor and shall b subject to Lessor's express
prior written approve: in each instance before the commencement of work. All
installations, alterations and additions shall be constructed by Lessee in a
good and workmanlike manner and only good grades of material shall be used in
connection therewith. The means by which telephone. telegraph and similar wires
are to be introduced to the Premises and the location of telephones, call boxes
and other office equipment affixed to the Premises shall be subject u the
express prior written approval of Lessor. The use of cement or other similar
adhesive material is expressly prohibited.
18. No signs, awnings, showcases, advertising devices or other projections or
obstructions shall be attached to the o=de walls of the Project or attached or
placed upon any Common Areas without the express prior written consent of
Lessor. No window shades blinds, drapes or other window coverings shall be
installed in the Project without the express prior written consent of Lessor No
sign, picture, advertisement, window display or other public display or notice
shall to inscribed, exhibited, painted or affixed by Lessee upon or within any
part of the Premises in such a fashion as to be seen from the outside of the
Premises or the Project without the express prior written consent of Lessor. In
the event of the violation of any of the foregoing by Lessee, Lessor tray remove
the articles constituting the violation without any liability and Lessee shall
reimburse Lessor for the expense incurred in such removal upon demand as
additional rent under the Lease. Interior signs on doors and-upon the Project
directory shall be subject to the express prior written approval of Lessor and
shall be inscribed, painted or affixed by Lessor at the expense of Lessee.
19. Lessee shall not use the name of the Project or of Lessor in its business
time, trademarks, signs, advertisements, descriptive material, letterhead,
insignia or any otter similar item without Lessor's express prior written
consent.
20. Lessee shall be entitled to have its name entered upon the directory of the
Project. In the event that Lessee wishes to have additional entries made upon
the Project directory for the names of employees of Lessee who occupy office
space within the Pry, such entries may be allowed by Lessor in its reasonable
discretion, and Lessor may require that I .GS pay a reasonable fee for each such
additional entry. All entries upon the Project directory shall be in uniform
prim of a size, style and format selected by Lessor.
21. The sashes, sash doors, skylights, windows and doors that reflect or admit
lips or air into the Common Areas shall not be covered or obstructed by Lessee,
through placement of objects upon window sills or otherwise. Lessee shall
cooperate with Lessor in obtaining maximum effectiveness of the cooling system
of the Project by closing drapes and over widow coverings when the sun's rays
fall upon windows of the Premises. Lessee shall not obstruct, alter, or in any
way impair the efficient operation of Lessor's heating, ventilating, air
conditioning, electrical, fire, safety or lighting systems, nor shall Lessee
tamper with or change the setting of any thermostat or temperature control
valves in the Project.
22. Subject to applicable fire or other safety regulations, all doors opening
onto Common Areas and all doors upon the perimeter of the Premises shall be kept
close:. and, during non-business (tours, locked, except when in use for ingress
or egress. If Lessor uses the Premises after regular business hours or on
non-business days, Lessee shall lock my entrance doors to the Project or to the
Premises cued by Lessee immediately after using such doors.
23. Employees of Lessor shall not receive or carry messages for or to Lessee or
oz.! other person, nor contract with nor render free or paid services to Lessee
or Lessee's servants, employees, contractors, jobbers, agents, invitees,
licensees, guests or visitors In the event that any of Lessor's employees
perform any such services, such employees stall be deemed to be the agents of
Lessee regardless of whether or how payment is arranged for such services and
Lessee hereby indemnifies and holds Lessor harmless from any ant: ill liability
in connection with any such services and any associated injury or damage to
property or injury or death to persons resulting therefrom.
24. All keys to the exterior doors of the Premises shall be obtained by Lessee
from Lessor, and Lessee shall pay to Lessor a reasonable deposit determined by
Lessor fro= tine to time for such keys. Lessee shall not make duplicate copies
of such keys. Lessee =all not install additional locks or bolts of any kind-upon
any of the doors or windows of, :r wit-tin, the Project, nor shall Lessee make
any changes in existing locks or the mechanisms thereof. Lessee shall, upon the
termination of its tenancy, provide Lessor with the combinations to all
combination locks on safes, safe cabinets and vaults and deliver to: Lessor all
keys to the Project, the Premises, and all interior doors, cabinets, and other
key- mechanisms therein, whether or not such keys were furnished to Less by
Lessor. In the event of the loss of any key furnished to Lessee by Lessor.
Lessee shall pay to Lessor the cost of replacing the same or of changing the
lock or locks opened by such last key if Lessor shall deem it necessary to make
such a change.
25. Access may be had by Lessee to the Common Areas and to the Premises at m
time. At other times access to the Project may be refused unless the person
seeking admission is known to the watchman in charge, if any, and/or has a pass
or is property identified. Lessee shall be responsible for all persons for whom
Lessee requests passes and sirs".1 be liable to Lessor for all acts of such
persons. Lessor shall in no case be liable :or damages for the admission or
exclusion of any person from the Project. In case of invasion, mob, riot, public
excitement, or other commotion, Lessor reserves the right to prevent access to
the project for the safari of knees and protection of property in the Project.
26. Lessor shall not be responsible for. and Lessee hereby indemnifies and holds
Lessor harmless from any liability in connection with, the loss, theft,
misappropriation or other disappearance of furniture, furnishings, fixtures,
machinery, equipment, money, jewelry or other items of personal property from
the ?remises or other parts of the Project, regardless of whether the Premises
or Project are located at the time of such loss.
27. For purposes hereof, the terns "Lessor", "Lessee", "Project" and "Premises"
am defined as those terms are defined in the Lease to which these Rules and
Regulations are attached. Wherever Lessee is obligated eider these Rules and
Regulations to do or refrain from doing an act or thing. such obligation shay
include the exercise by Lessee of its best efforts to secure compliance with
such obligation by the servants, employees, contractors, jobbers, agents,
invitees, licensees, guests tad visitors of Lessee. The term "Project" shall
include the Premises, and any obligations of Lessee hereunder with regard to the
Project shall apply with equal force to the Premiers and to other parts of the
Project.
EXHIBIT "F"
Storage and Use of
Permitted Hazardous Material/Wastes
Landlord will allow the use and storage of the following hazardous
materials/wastes a the Premises, so long as Tenant complies with all teens of
the Lease regarding Hazardous Materials:
Isopropyl Alcohol
Solder Flux
Wipes
Tips
Gloves
Finger Cots
and such other Hazardous Material required and used in the production of
Tenant's Products, provided their use and disposal adheres to federal and state
laws.
FIRST ADDENDUM TO LEASE
THIS FIRST ADDENDUM TO LEASE ("Addendum") is entered into as of the 19th
day of December, 1997, by and between STANFORD RANCH 1, LLC, a Delaware limited
liability company ("Landlord") and SPECTRIAN CORPORATION, a Delaware Corporation
("Tenant"), in connection with the following:
A. Landlord and Team entered into that certain lease dated December 19.
1997 (the 'Lease) for space commonly known as Suite 500 located at Atherton Tees
Center on Lot 10, and more particularly described in the Lease (the "Premises').
B. Landlord and Team wish to modify the Lease as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
1. Base rent. The initial Base Rent as sec forte in the Basic Lease
Information of the Lease shall be 517,729.30 per month, subject to increase to
the extent the Tenant Improvement Allowance (as defined herein) is greater than
the Fixed Allowance (as defied herein). On the first day of the 19th, 37th and
54th months of the term of the Lease the Monthly Bas: Rent: then in effect
(without taking into account any temporary abatements or reductions to Monthly
Base Kent) stall be increased by three and one-half percent (31125:). The
Monthly Base Rent for the first two (2) calendar months of the Term (totaling
$35,158.60) shall be fully abated.
2. Options to Extend Term.
(a) Grant of Option. Tenant is hereby granted two (2) options
(sometimes individually called a "Renewal Option" and collectively called the
'Renewal Options") to extend the Term of the Lease with respect to all of the
space then constituting the Premises (including, without limitation, any space
acquired through Tenant's First Refusal Right) upon all of the envisions
contained in the Lease, except for Monthly Base Rental, for a period of three
(3) years per Renewal Option (ea=t referred to herein as the 'Option Tam'). Such
Renewal Options shall be exercised, if at all, by Tenant delivering written
notice to Landlord of Tenant's exercise of such Renewal Option ('Option Notice')
it least one hundred eighty (180) days. but not more than two hundred sixty-five
(265) days before (i) the expiration of the initial Term (with respect to the
first Renewal Option) and (ii) the expiration of the fast Option Tens twilit
respect to the second Renewal Option). Reference to the 'Tam" of the Lease as
user in the Lease shall include each Option Term for which a Renewal Option is
exercised in accordance herewith- Tenant shall have no timer right to extend the
Term of the Lease except as set forth in this section.
(b) Portion of Premises Subject to Renewal Options. Tenant's Renewal
Options shall pertain to all or a portion of the Premises, provided, however,
that in no event shall the portion of the Premises to which Renewal Options are
applicable be less that. :0,500 usable square feet, in a configuration
acceptable to Landlord in its sole discretion. Tenant exercises a Renewal Option
for less titan else entire Premises as it exists at the time of the exercise of
such Renewal Option theta the calculation of the Monthly Base Rent which is to
be effective at the commencement of the Option Term shall be increased to take
into account the cost which Landlord will incur to separate the portion of re
Premises to which the Renewal Option pertains from the balance of the Premises,
amortized ova the tem. of said Renewal Option al an interest rate of I t% per
annum. If Tenant exercises its firs Renew l Option for less than the entire
Premises as it exists at the time of the exorcise of such Renewal Option (as
allowed above), then Tenant shall only have the right to exercise its second
Renewal Option for the space which was the subject of the first Renewal Option.
(c) Monthly Base Rental During Option Term(s). In the event Tenant
exercises either of its Renewal Options as provided above, then the Monthly Base
Rental for the applicable Option Term (including periodic increase: to the
Monthly Base Rental during the applicable Option Term) shall be determined as
hereinafter provided. 'The Monthly Base Rental for the applicable Option Term
shall be determined as follows:
(1) Within fifteen (15) days of receipt by Landlord of Tenant's
Option Notice, Landlord shall deliver written notice (the 'landlord Notice") to
Tenant advising Tenant of Landlord's opinion of ninety-five percent (95%) of the
air marker rental value (the "Value) of the Premises;
(2) If Landlord's opinion elf 60 Value of the Premises is
acceptable to Tenant the, Tenant shall so notify Landlord in writing within
fifteen (IS) days of receipt by Tenant of Landlord's Notice, end the Lease
shall, thereafter, be extended for the Option Term,
(3) M the event Taunt challenges Landlord's opinion of the Value
of the Premises Tenant shall deliver written notice thereof (the "Tenant's
Notice) to Landlord within fifteen (I S) days of receipt by Taunt of Landlord's
Notice. In such Tenant's Notice; Tenant shall also advise Landlord of Tenant's
opinion of the Value of the Premises. If Tenant fails to deliver Tenant's Notice
to Landlord containing the tired information within such fifteen (IS) day time
period, that saran shall be considered as Tenant's acceptance of Landlord's
Opinion of the Value of the Premises. If Taunt timely deliver the Tenant's
Notice, and if Landlord and Taunt cannot agree upon the Value of the Premises
within fifteen (15) days after Landlord's receipt of Taunt's Notice, then the
Value of the Premises shall be determined by appraisal in accordance wits this
Addendum. All costs of suds appraisal shall be paid by Tenant: provided,
however, that Landlord dull ban sod pay far its own broker as provided in this
subparagraph 3. and the costs incurred by Landlord therefore dad be paid by
Landlord.
(d) Determination of Value By Broker(:). In the even the Landlord's
asst! Team's opinions of the Value of the Premises, as set forth in the
Landlord's Notice and Tenant's Notice, respectively, are different and the
parties cannot agree upon such Value as provided in Paragraph 2(c) above, then.
within thirty (30) days thereafter, Landlord and Tenant shall each appoint a
licensed real estate broker with at least five (5) yet-s experience in
commercial office building transactions within the Roseville/Rocklin area, tend
shall give written notice of the nacre and address of such broker to the other
party. Not later than five (5) days aft-- both brokers are appointed, each party
shall separately, but simultaneously, submit in a sealed envelope to each broker
their separate opinion of the Value of the Premises (which Value may be
different than their respective opinions of the Value of the Premises as
referenced above), and shall provide a copy of such submission to the other
party. If the higher opinion of the Value of the Premises of the two (2)
separate opinions thereof submitted to each such broker does rot exceed the
lower opinion of the Value by more than five percent (5%) of the owes opinion,
then the two Values shall be added and then divided by two (thus splitting the
difference :rid evading additional arbitration costs) with the resulting dollar
amount becoming the Value of the Premises for purposes hereof. The failure by
either party to timely appoint a broker and notify the other party thereof, as
provided above, shall be deemed a waiver by the failing party of the right to
have the Value of the Premises determined by more than one broker. The brokers)
so appointed scull meet at the earliest time practicable, but in no event more
than ten (10) days after the appointment of both of the required broker(s), for
the purpose of determining whether Landlord's or Tenant's opinion of the Value
of the Premises as put forth in the separate notices to each party, as provided
in this subparagraph, is the more: accurate Value of the Premises, taking into
account the requirements of this Addendum.
(e) Determination of Value By Appraiser. If the broker(s) cannot agree
upon whether Landlord's or Tenant's opinion is more accurate, then cite
broker(s) shall appoint an M.A.I. appraiser wit at least fns (5) years
experience in valuing office buildings within the Roseville/Rocklin area to also
determine whether Landlord's or Tenant's opinion of the Value a more accurate.
The decision of the majority of said broker(:) and appraiser shall constitute
the vote of suds persons and shall be binding on both of the paves hereto. The
Value of the Promises as determined herein shall be the Monthly Base Rental for
the applicable Option Term. Notwithstanding anything to the contrary contained
herein, in no event shall the Monthly Bate Rental for each applicable Option
Term be less than the Monthly Base Rental for the year preceding the applicable
Option Term (without regard to temporary abatements or reductions in such
Monthly Base Rental).
(f) Definition of Value of the Premises. The Value of the Premises
shall be dorm-read based coon rentals then being charged for other space
similarly situated and within Class A buildings located within the
Roseville/Rocklin area of equivalent condition and amenities as the Building and
the Project, Losing into account the size. location. floor level, the length of
the term of the Option Term, the extent of service to be provided, and any other
relevant terms and conditions, including, without limitation, periodic increases
in rent. All Monthly Base Rental payable during the Option Term shall be payable
in the same manner and order the same terms and conditions as Monthly Base
Rental is paid during the initial Term. In no event :tail Landlord be obligated
to construct any additional improvements within or about the Premises in
connection with Tenant's exercise of sins Renewal Options.
(g) Arbitration. In the event of a dispute regarding the Value of the
Premises Or the Monthly Base Rental during the applicable Option Term, the
matter shall be submitted to arbitration m the county where the Project is
looted, with and pursuant to the then applicable commercial rules and
regulations of the American Arbitration Association or any successor
organization ("AAA"). The parties hereby incorporate by reference as though
fully ax forth herein California Code of Civil Procedure Sections 1283, 1213.1
and 1283.05, relating to discovery during an arbitration. The parties hereby
agree that either or any party to the arbitration may seek any and all
provisional remedies, including, but not limited to, temporary restraining
Careers. preliminary injunctions, permanent injunctions, writs of attachment,
temporary protective orders, obtain receivers, utilize claims and deliveries and
obtain writs of possession, sod that by doing so, it is specifically agreed that
the moving party has not waived the right to arbitrate err continue to
arbitrate. Each party shall, within thirty (30) days after either party files a
request for arbitration, same one arbitrator from among the arbitrators
acceptable to the AAA and the two arbitrators stall appoint a third arbitrator;
the failure of a party to tamely appoint an arbitrator shall be deemed a waiver
of the tight by such party to appoint an arbitrator and to lave the matter heard
by moat than one arbitrator. In suck proceeding, the arbitrator(:) shall
determine who is a substantially prevailing party and award to such parry its
reasonable attorneys', accountants' and other professionals' fees and other
costs incurred in connects= with such proceeding. The award of the arbitrator(:)
shall be Real, binding upon the parties, non-appealable and may be entered in
and enforced by any court of competent jurisdiction. Such court may add to the
await of the arbitrator(:) all additional reasonable attorneys' fees and costs
incurred by the prevailing party is attempting to enforce such award.
(h) Payment of Base Rental During the period of time the parties are
determining the Value of the Premise; if such period extends beyond tae
scheduled expiration of the Term (before taking into account the subject Option
Term), Tenant shall pay Landlord a Monthly Base Rental, the amount which was
paid as Monthly Base Rental immediately prior to the commencement of the Option
Term. If the Monthly Base Rental for the Option Term, a determined herein, is
different than the amount paid by Tenant as Monthly Base Rental during tire
period of time following the previously scheduled end of the Term of the Lease.
Um an adjustment shall be made effective a of the commencement of the applicable
Option Term, and one party shall pay the other party, within ten (l0) days
following rte determination of the Monthly Base Rental for the applicable Option
Term, an amount sufficient to reconcile the amount so paid by Tenant a Monthly
Base Rental u compared with the actual amount of Monthly Base Rental due.
(i) Renewal Options Personal The Renewal Options granted to Tenant
herein arc personal to Tenant and may not be exercised or "signed voluntarily or
involuntarily, by or to any person or entity other than the original Tenant. The
Renewal Options herein ;ranted to Tenant is not assignable separate and apart
from the Lease. In the event that at the time either of tan Renewal Options are
exercisable by Tenant, the Lease has been assigned, or a sublease exists a to
twenty percent (20%.) or more of the Premises, all unexercised Renewal Options
shall be deemed null and void and Tenant, any assignee, or any sub lessee, shall
not have the right to exercise said Renewal Option(s).
(j) Effect of Default on Renewal Options.
(i) Tenant shall have no rig" to exercise any Renewal Option,
notwithstanding any provision herein to the contrary, (i) during the time
commencing from the date Landlord gives to Tenant a notice of default under the
Lease and continuing until the default alleged in said notice of default is
cured, (ii) during the period of time commencing on the date after a monetary
obligation to Landlord is due from Tenant and unpaid (without any necessity for
notice thereof to Tenant) and continuing until the obligation is paid, or (iii)
in the event that Landlord has given to Tenant three or more notices of default
during the twelve (12) month period prior to the time that Tenant exercises such
Renewal Option.
(1) The period of title within which any Renewal Option may
be exercised shall not be extended or enlarged by reason of Tenant's inability
to exercise such Renewal Option because of the provisions of subparagraph
2(j)(i).
(2) All rights of Tenant under the provisions of such
Renewal Option shall terminate and be of no further force or effect,
notwithstanding Tenant's due and timely exercise of such option, if, after such
exercise, (i) Tenant fails to pay to Landlord a monetary obligation of Tenant
for a period of ten (10) days after such obligation becomes due (without am
necessity for notice thereof to Tenant), (ii) Tenant fails to cure a
non-monetary default within thirty (30) days after the sate that Landlord gives
notice to Tenant of such default, or (iii) Landlord gives to Tenant three a more
notices of default for the same type of default during the period commencing
twelve (12) months prior to the exercise of the Renewal Option and continuing
through the date of the commencement of the Option Temp, whether cc not the
defaults are cured.
3. Right of First Refusal.
(a) Tenant is hereby granted a right of firs: refusal (the "First
Refusal Right") to lease any and all space in the Building pursuant to the term
of ass Paragraph 3. Landlord shall deliver written notice to Tenant (the "First
Refusal Notice") prior to the time Landlord intends to offer the space which is
the subject of a lease within the Building (the "First Refusal Space") to a bona
fide third party or prior to the time Landlord intends to accept an offer from a
third party to lease such First Refusal Space (in either rise a 'Third Party
Offer'). The Third Party Offer may be in the form of & non-binding later of
intent or deal point memorandum Landlord shall set forth in the First Refusal
Notice the essential business terms of the Third Party Offer, except that the
term of the lease for the First Refusal Spars mall be co-terminus with the Term
of this Lease. and except that there shall be an appropriate adjustment of tae
rental rate for the First Refusal Space as set forth in the Third Party Offer to
take into account the difference in the leasehold improvements to the First
Refusal Spate desired by Tenant, such adjustment m the rental note to be
established as follows
(i) The monthly renal for the First Refusal Space shall be
reduced by the amounts of the monthly amortization of the- cost to Landlord to
construct and install the improvements needed pursuant to the Third Party Offer,
plus interest at 10% per annum, ova the proposed term of the lease which is the
subject of the Third Party Offer, and
(ii) The monthly rental for the First Refusal Space shall be
increased by the amount of the monthly amortization of the cost to Landlord to
construct and install the improvements needed to cause the First Refusal Space
to be improved consistent with the remaining Premises and integrated within the
remainder of the Premises (collectively the 'First Refusal Space Improvements'),
plus interest at 10% per annum, over the remaining term of this Lose (sot to
exceed five years); provided, however, that the cost to Landlord for the First
Refusal Space Improvements shall not exceed $21.21 per usable square foot of the
Pest Refusal Space provided further, that if the term of the lease for the First
Refusal Spar is less than five (5) years, they such amount shall be further
reduced by a fraction, the numerator of which is the number of saints: in the
tam of the lease for the First Refusal Space (after commencement of the term
thereof) through die expiration date of this Lease, and the denominator of which
is sixty (60) months.
(b) Tenant shall exercise its First Refusal Right. if at all, by
delivering written notice of the exercise thereof to Landlord within five (5)
business days, following Tenant's receipt of the First Refusal Notice. If Tenant
does not exercise its First Refusal Right as provided above, then Landlord shall
have the right to lose, the First Refusal Space to any third party or parties on
terms and conditions substantially similar to those so forth in the First
Refusal Notice or on suds terms as am more beneficial to Landlord.
(c) If Tenant exercises is First Refusal Right, then same shall
automatically cause Tenant's Cancellation Option (as defined below) to be
terminated and thereafter to be null and void.
(d) The First Refusal Rights granted to Tenant herein am personal to
Tenant and ma) lot be exercised or assigned voluntarily or involuntarily. by or
to any person or entity other than the original Tenant. The First Refusal Rights
herein granted to Tenant am not assignable separate and span from the Lease. In
the event that at the time any First Refusal Rights am exercisable by Tenant,
the Lease has been assigned, or a sublease exists as to twenty percent (20%) x
more of the Premises, such First Refusal Rights of Tenant call be deemed null
and void and Tenant, any assignee, or any sublessee, shall not have the right to
exercise aid First Refusal Rights.
(e) Tenant shall have to right to exercise its First Refusal Rights,
notwithstanding my provision herein to the contrary, (i) during the time
commencing from the date Landlord gives to Tenant a races of default under the
Lease and continuing until the default alleged in said notice of default is
cured, (ii) d-g the period of time commencing on the date after a monetary
obligation to Landlord is due from Tenant and unpaid (without any necessity for
notice thereof to Tenant) and continuing until the obligation is paid. of (ii:
in the event that Landlord has given to Tenant three or more notices of default
during the twelve (12) month pond prior to the time that Tenant exercises such
First Refusal Rights.
(1) The period of time within which any First Refusal Rights mad
be exercised shall not be extended or enlarged by reason of Tenant's inability
to exercise such First Refusal Rights because of the provisions of subparagraph
3(e).
(2) All rights of Tenant under the provisions of such First
Refusal Rights shall terminate and be of no further force or effect.
notwithstanding Tenant's due and timely exercise of 51411 First Refusal Rights,
if, after such exercise, (i) Tenant fails to pay to Landlord a monetary
obligation of Tenant for a period of ten (10) days after such obligation becomes
due (without any necessity for notice thereof to Tenant), (ii) Tenant fails to
cure a non-monetary default within thirty (30) days after the date that Landlord
gives notice to Tenant of such default, or (iii) Landlord gives to Tenant three
or more notices of default for the same type of default during the period
commencing twelve (12) months prior to the exercise of the First Refusal Rights
and continuing through the date of the commencement of the tern for the First
Refusal Space, whether or not the defaults are cured. If Tenant exercises its
First Refusal Rights and subsequently such exercise is caused to be null and
void as provided herein. Tenant stall reimburse Landlord for all reasonable
costs end expenses incurred by Landlord in connection with Tenant's exercise of
its First Refusal Rights (including, without limitation, the brokerage
commissions, design std architectural fees, construction eats, repair and
renovation, and any and all other costs and expenses; incurred by Landlord in
connection therewith). Under such circumstances, this Lease shall continue in
full force and effect as to the remainder of late Premises excluding the First
Refusal Space.
4. Cancellation Option.
(a) landlord hereby grants Tenant the right to cancel and terminate
the Lease (the "Cancellation Option') on the terms and conditions contained
herein. Said Cancellation Option shall, if properly exercised as provided below,
be effective as of the last day of the 24th month of the Term of the Lease or at
the end of the 36th month of the Term of the Lease. Tenant shall exorcise its
Cancellation Option, if at all, by delivering written notice of the cancellation
of this Lease (the "Cancellation Notice") to Landlord no later than 180 days
prior to the applicable Cancellation Due, whim Cancellation Notice shall net
forth whether the tease is to be cancelled on the last day of the 24th month of
the Less Tam a the last day of the 36th month of the Lease Term (whichever of
such dates is specified in the Cancellation Notice shall be deemed to be and
shall be referred to herein as the "Cancellation Date").
(b) If Tenant exercises its Cancellation Option, Tenant shall fully
perform all obligations of Tenant under the Lease through and including the
Cancellation Date (including, without limitation, the payment of all Monthly
Base Rental and other charges under the Lease in addition to the Cancellation
Consideration), and Tenant shall vacate and surrender possession of the Premises
to landlord in the condition required by the Lease with respect to surrender of
the Premises upon expiration of the Lease Term. Tenant's performance of such
obligations shall be a condition subsequent to the effectiveness of the exercise
of the Cancellation Option.
(c) As a condition precedent to the effectiveness of Tenant's exercise
of its Cancellation Option. Tenant shall deliver to Landlord the Cancellation
Consideration (defined below) concurrently with the deliver. of the Cancellation
Notice. The term 'Cancellation Consideration" shall mean:
(i) If the Cancellation Date :r the tan day of the 24th month of
the lease Tern, the aggregate of the following:
(1) A sum equal to nine (9) times the Monthly Base Rent
which would be in effect on the Cancellation Date, plus
(2) The unamortized :amt incurred by Landlord for Landlord's
Construction Allowance (including any increases thereof as allowed :y the Lease,
but excluding the cost of the dropped ceiling. T-bar, lighting and HVAC), free
rent, brokerage commissions, attorneys' fees and other costs incurred by
Landlord in connection with the Lease; provide:. however, that in no event shall
the Cancellation: Consideration exceed 5381,971.00 if the Cancellation Date is
the last day of the 24th month of the Lease Tern (subject to increase pursuant
to Paragraph 5 of this Addendum).
(ii) If the Cancellation Date is the last day of the 36th month
of the Lease Term, the aggregate of the following:
(1) A sum equal to six (6) times the Monthly Base Rent which
would be in effect on. the Cancellation Date, plus
(2) The unamortized cost incurred by Landlord for Landlord's
Construction Allowance (including any increases thereof as allowed by the Lease,
but excluding the cost of the dropped ceiling. T-bar, lighting and HVAC), free
rent, brokerage commissions, attorneys' fees and other costs incurred by
Landlord in connection with the Lease; provided, however, that in no event shall
the Cancellation Consideration exceed 5201,610.00 if the Cancellation Date is
:he last day of the 36th month of the Lease Term (subject to increase pursuant
to Paragraph 5 of this Addendum).
(iii) The amount of the unamortized casts described in
subparagraphs (i) and (ii) above stall be determined by multiplying the total of
such costs incurred by Landlord by a fraction, the numerator of which is the
number of months from the Cancellation Date until the date the Term of the Lease
would :aye otherwise expired, but for said cancellation. and the denominator of
which shall be sixty (60) months
(iv) Notwithstanding the forting, if, concurrently with Tenant's
delivery of the Cancellation Notice to Landlord, Tenant delivers to Landlord am
irrevocable letter of credit to secure payment of the Cancellation Consideration
to Landlord on the Cancellation Date, which letter of credit is in a form
acceptable to Landlord issued by an institutional lender acceptable to Landlord,
in an amount equal to the Cancellation Consideration (the "Letter of Credit"),
with a term that extends for at least thirty (30) days after the Cancellation
Date, then Tenant's obligation to deliver the Cancellation Consideration to
Landlord concurrently with delivery of the Cancellation Notice shall be deferred
until the Cancellation Date. Hoes, in such event, the Cancellation Consideration
shall be delivered to Landlord on the Cancellation Date.
(d) The Cancellation Option granted to Tenant herein is personal to
Tenant and may no at exercised or assigned voluntarily or involuntarily, by a to
any person or entity other than the original Texas. The Cancellation Option
herein granted to Tenant is not assignable separate and apart from the lease. In
ere event that at the time the Cancellation Option is exercisable by Tenant, the
Lease has been assigned, or a sublease exists as to twenty percent (20%a) or
more of the Promises, the Cancellation Option shall be denoted null and void and
Tenant, any assignee, or any sublessee, shall slot have the right to exercise
said Cancellation Option.
(e) Tenant shall have no right to exercise the Cancellation Option,
notwithstanding ay provision herein to the contrary, (i) during the time
commencing tom the date Landlord gives to Tenant a notice of default tender the
Lease and continuing until the default alleged in said notice of default is
cured, (H) during the period of time commenting on the date after a monetary
obligation to Landlord is due from Tenant and unpaid (without any necessity for
notice thereof to Tenant) and continuing until the obligation is paid, or CHI)
am the even dun Landlord has given to Tenant three or more notices of default
during the twelve (12) month period prior to the time that Tenant exercises such
Cancellation Option.
(1) The period of time within which the Cancellation Option -lay
x exercised shall not be extended or enlarged by reason of Tenant's inability to
exercise such Cancellation Option because of the provisions of subparagraph
4(e).
(2) All rights of Tenant antler the provisions of such
Cancellation Op= shall terminate and be of no further force or effect,
notwithstanding Tenant's due and timely exercise of etch option, if, after' such
exercise, (i) Tenant fails to pay to landlord a monetary obligation of Tenant
for a period of ten (10) days after such obligation becomes due (without any
necessity for notice thereof to Tenant). (ii) Tenant fails to cure a
non-monetary default within fifteen (15) days after the date that Landlord gives
notice to Tenant of such default, or (iii) Landlord gives to Tenant three or
more notices of default for the same type of default during the period
commencing twelve (12) months prior to the exercise of the Cancellation Option
and continuing through the effective Cancellation Date, whether or not the
defaults are cured.
5. Tenant Improvement Allowance. As provided in the Construction Work
Letter attached is Exhibits '8' and "C" to the Lease, Landlord's Construction
Allowance shall be $442,479.44 (based upon construction costs of $425,461.00
plus a construction fee to Landlord of 4o/a of such costs) pertaining to no
Tenant Improvements (which Tenant improvements shall not include the Landlord's
Work as defined in tie Construe= Work Letter, but shall include the
architectural fees and costs of Calpo Horn Macaulay & Doug for the Project). In
the event the actual Construction Costs of the Tenant Improvements is less than
to Landlord's Construction Allowance, then the shortfall shall be a credit
against the first installments of Monthly Base Rent wising under the Lease until
such shortfall has bon exhausted. In the event the actual Construction Costs for
the Tenant Improvements exceeds the Landlord's Construction Allowance due to
Tenant's changes in the Tenant Improvements from those depicted in the November
6, 1997 floor plan of the Premises, then such excess, up to $104,290.00
(calculated at $5.00 per usable square foot of the Premises) (the "Overage
Allowance") shall also be paid by Landlord as though same were included in the
Landlord's Construct Allowance, subject to the provisions below. In the event
Landlord incurs any costs which fall within no Overage Allowance, then the
Monthly Base Rent shall be increased effective as of the commencement of the
Term of the Lease by an amount equal to the amortization of the Overage Amount
at an interest rate of IC" 1 per annum over the initial sixty (60) month Term of
tile Lease. In such event, the increases in Monthly Rent effective at the
beginning of the 19th, 37th and 54th months of the Lease Term shall be based
upon tic already increased Monthly Base Rent as a result of Landlord incurring
the Overage Amount. If the SCU21 Construction Costs of the Tenant Improvements
exceeds the Landlord's Construction Allowance and the Overage Allowance, then
the excess Construction Costs shall be considered the Tenant's Construction
Costs and shall be paid by Tenant to Landlord pursuant to the terms of the
Construction Work Letter. (t is intended that are !Monthly Base Rental shall not
be increased by the amortization of the Overage Amount if the increase in ere
Construction Costs is simply because construction costs for the Tenant
Improvements shown on the November 6, 1997 floor plan were higher than expected.
If the Monthly Base Rent increases pursuant to this Paragraph 5, then the
maximum Cancellation Consideration described at the end of Paragraph 4(c)(i) of
this Addendum shall be increased by the amount which is nine (9) times the
increase in Monthly Base Rent as a result thereof, and the maximum Cancellation
Consideration described a the end of Paragraph 4(c)(ii) of this Addendum Stall
be increased by the amount which is six (6) times the increase m Monthly Base
Rent as a result thereof.
6. Signage. Tenant shall have the right to include its sign on the monument
sign for Athens Center Lot 810 constructed by Landlord, subject to Tenant prying
any costs associated with such sign e established by Landlord. Tenant's sign
shall be subject to the prior written approval of Landlord (which shall not be
unreasonably withheld) and shall comply with any and all laws pertaining
thereto.
7. Terms. The capitalized tam used in this Addendum that are defined in the
Lease shall have the same meaning as set forth in the Lave, unless expressly
redefined herein. In the event of a conflict between the provision: of this
Addendum and those of the Lease. the provisions of this Addendum shall control.
Except as set forth in this Addendum, the Lean shall remain in full forge and
effect.
IN WITNESS WHEREOF, the patties hereto have entered into this Addendum as
of the date fast hereinabove mentioned.
"LANDLORD" "TENANT"
STANFORD RANCH I, LLC, a SPECTRIAN, Inc.
Delaware limited liability company a Delaware Corporation
By: /s/ Larry D. Kelley By: /s/ Stephen B. Greenspan
------------------------------ ------------------------------------
Name: Larry D. Kelley Name: Stephen B. Greenspan
Title: President Title: Chief Operating Officer
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT To LEASE (the "Amendment"), dated as of February 19,
1998, is entered into lay and between Stanford Ranch I, LLC, a Delaware limited
liability company ("Landlord") latdiord1, and Spectrian Corporation. a Delaware
corporation ("Tenant"), and is made with reference cc to the following recitals
of fact
RECITALS
A. Landlord end Tenant entered Into wet certain lease dated December 19,
1997 (the "Lease"), !or certain office apace commonly ft" as Suite 500 (referred
to in the Lease as the "Premises" and referred to hereto as the "Original
Premises") in a building (the "Building") containing approximately <0,000 square
feet to be constructed within Atherton Tech Center, Let 10. Rocklin, California
95785 (the "Project"). The lease Includes the Flit Addendum to Lease dated
December 19, 1997 (the 'Flat Addendum').
B. Tenant agrees to lean from Landlord additional space within the Building
and otherwise modify the lease on all of the terms and conditions set forth
herein.
AGREEMENT
NOW. THEREFORE, n consideration of the mutual covenants contained herein
and for other valuable consideration. the receipt and sufficiency of which is
hereby acknowledged, the parties hereto do hereby apse as follows:
1. Lease of Additional Space
(a) Additional Space. As of the Term Commencement Date, Landlord
hereby leases to Tenant, and Tenant hereby leases from Landlord, that certain
space n the Building depicted on the Amended Exhibit 'A' attached hereto and
incorporated herein by this reference (ft *Additional Space, on ail of the
terms, provisions and conditions of the Lease as modified hereby. The Minded
Exhibit "A" also depicts Me Original Premises, and the Amended Exhibit "A' shall
supersede and replace Exhibit: 'A' attached to the Lease. The Additional Space
contains approximately 19,142 square feet, and such Additional Space and the
Original Premises together constitute the entire Building. As d the Term
Commencement Date, the term "Premises." as used in the Lease and this Amendment
shall be modified to mean the Original Premises and the Additional Space.
(b) Teen for Additional Space. The Term of the Lease with respect to
the Additional Space shall commence on the date on which the conditions act
forth in Section 29 of the Lease have been satisfied as they relate to the Add
:tonal Space. The parties hereto anticipate that the Tam of the Lease relating
to the Additional Space will occur on the Term Commencement Date. As such, the
provisions of this Amendment pertaining to the Additional Space reflect
commencement of obligations thereto occurring on the Term Commencement Date.
However, if the Tenant improvements (or the Additional Space are not
substantially completed by the Term Commencement Date, then, notwithstanding
anything contained herein to the contrary, the Term of the Lease as t reams to
the Additional Space shall commence upon substantial completion of the Tenant
Improvements for the Additional Space and delivery to Tenant of a copy of a
temporary or permanent occupancy permit for the Additional Space (sometimes
referred to herein as the "Additional Space Commencement Date"). The term
'Tenant Improvements for the Additional Space' shall mean the improvements
depicted on the Schematic Drawing prepared by Calpo/Horn/Macaulay/Dong. dated
February 12, 1398, a copy of which is attached hereto as the Amended Exhibit 'A'
(sometimes also referred to herein as the 'Schematic Drawing"). The Lease (or
the entire Premises (i.e., the Original Premises and the Additions Space) shall
be coterminous, such that the Term of the Lease with respect to the Additional
Space shall end on the expiration or earlier termination of the Term of tree
Lease wow respect to the Original Premises. as it may be extended x renewed.
(c) Base Rent for Additional Space As of the Term Commencement Date,
the Base Rent for the Additional Space shall be as follows
(i) he ease Rent for the first two (2) months -after the Term
Commencement Date shall be fully abated. For the period following the first two
(2) Months of the abated Base Rent through the next v months of the Term (the
day after the last day of the lest of such months is referred to herein as the
'Additional Space Base Rent Increase Date, subject to the provisions of Section
1(c)(iii) below, Base Rent for the Additional Space shall be $8,613.90 per month
($0.45 per square foot of the Additional Space per month) (it is understood
that, if the Additional Space Commencement Date occurs after the Term
Commencement Date, the first two months after the Additional Space Commencement
Date shall be free of Base Rent for the Additional Space):
(ii) From the Additional Space Base Rent Increase Oats through
the end of to Tern, Base Rent for the Additional space shall be $16,270.70 per
month (0.86 per square foot and the Additional space per month) (sometimes
referred b herein as the Increased Bass Red for ft Additional sate:
(iii) The Additional Space Base Rent Increase Date shall be
lengthened or shortened to the extant the Construction Costs for the Additional
Space are less or greater, respectively, than Landlord's Additional Construction
Allowance (as defined in Section 1(g) below):
(iv) Base Rent for the Additional Space (i.e. the initial Base
Rent and the increased Base Rent for the Additional Space) anal be added to the
Base Rent for the Original Premises; (as the Base Rent for the Original Premises
may be Increased to the extent the Tenant Improvement Allowance 's greater than
the Fixed Allowance, as provided in Section 6 of the First Addendum), and the
combined Base Rent for the Additional Space and the Original Premises shall be
the Race Rent for the entire Premises under the Law;
(v) The combined Base Rant for the entire Premises shall be
increased on the 19111, 37th and 64th months of the Team of the lease (as
calculated from the Term Commencement Data) by three and one-half percent (3
1/2%) of the then existing combined Base Rent (as it may have been previously
increased). If the Increased Base Rent for the Additional Space Is not effective
on the in month of the Tent pert the Increased Base Rent for the Additional
Space shah be deemed to be effective for purpose of calculating the Increase in
Base Rent for the 19th month of the Term if the Additional Space Commencement
Date cram more than sixty (60) days after the Term Commencement Data, That the
three and one-half percent (3 1/2%) Increases h One Rent for the Additional
Space shall be delayed by the number of days following the Term Commencement
Oats until the Additional Space Commencement Oath however, this delay shad not
affect the occurrence of the three and one-half percent (3 1/2%) increases in
Base Rent for the Original Premises as described above.
(d) Tenant's Proportionate 8h an. As of the Tens Commencement Date,
Ten Tenant's Proportionate Share, as set forth h the Basic Lease Information of
the Lease, shall be Increased to 100%, circa, as of the Tam Commencement Date.
Tenant shag be leasing the entire Building.
(e) Parking Density. As of the Term Commencement Date, the number of
parking spaces available for use by Tenant shall be modified to be ell of the
parking spaces located on the Project
(f) Tenant Improvements for Additional Specs. Landlord shall alter and
improve the Additional Space with the Tenant Improvements as depicted in the
Schematic Drawing and in accordance with the terms and conditions of the Lease
(including, without limitation, all attachments thereto); provided, however,
that for purposes of determining the scope of the portico' obligations with
respell to the Tenant Improvements for the Additional Space, the following shall
apply:
(i) Landlord shall act reasonably and diligently in the
commencement end substantial completion of the Tenant Improvements for the
Additional Space, and Tenant shall act reasonably and cooperatively with
Landlord to enable the substantial completion of the Tenant Improvements for the
Additional Space to occur at the earliest date practicable. The first sentence
of Section 2.2 of the Work Letter attached as Exhibit 'B' to the Lease (i.e.,
the Commencement Date shall occur by June t, 1998) shall, subject to Section 35
of the Lease, be applicable to the Tenant Improvements for the Original Premises
end the Additional Space. In no event, subject to Section 35 of the Lease, shall
the Additional Space Commencement Date occur later than December 31, 1998.
(ii) The following provisions of the Lease chef) not be
applicable to the construction of the Tenant Improvements for the Additional
Space: (i) the fast sentence of Section 1 of the Work Letter and (ii) Section 5
of the First Addendum.
(iii) References m the Lease (including, without limitation, the
Work Letter) to the Tenant Improvements shay mean the Tenant Improvements for
the Additional Space, and references to the Commencement Date shall mean the
Term Commencement Date.
If Tenant wishes to make any changes to the Tenant Improvements for the
Additional Space from those depicted on the Schematic Drawing, and such changes
are approved In writing by Land= (Landlord's approval shall not be unreasonably
withheld, except that Landlord's approval may be withheld in Landlord's sole
discretion as to any changes which materially diminish the construction costs of
the Tenant Improvements for the Additional Space below $17.00 co per square
foot), then Tenant shall bear the ensue tort of cur, changes (inducting, without
limitation, all architectural fees and costs, permit fees end cost and all
additional costs to construct and install the Tenant Improvements for the
Additional Space (including the 4% construction fee to Landlord) related to such
changes), and the date of substantial completion of the Tenant Improvements for
the Additional Space shall be deemed to have occurred on the date same would
have occurred but for such changes. The costs of such changes that are to be
home by Tenant shall be paid by shortening the Additional Space Base Rent
Increase Date as described in Section 1(g) below.
(g) Payment of Construction Costs. Landlord's construction allowance
for the Tenant Improvements for the Additional space shall be $339,210.00 too
(super square foot of the Additional Space) ("Landlord's Additional Construction
Allowance) Tenant Improvements for the Additional Space (which Tenant
Improvements shag rot Include the Landlord's Warts (Landlord's wont shall be a
worst for the building that is not Tenant improvements, whether such Tenant
Improvements are to ft Original Pa the Additional Space], but shall include ft
architectural fees and acts of Calpo/Horn/Macaulay/Doug for the Project). It is
Intended that the monthly Base Rent shad rat be increased ( the Increase in t
construction costs Is simply bemuse construction coats for the Tenant
Improvements for the Additional Space were higher than expected, and f monthly
Base Rent shag not be decreased if there is a decease in the construction costs
aft* because construction costs for the Tenant Improvements for the Additional
Space were lower titan expected. In the event the actual construction costs of
the Tenant Improvements for the Additional Spew exceeds or is less than
Landlord's Additional Construction Allowance solely due to Tenant changes h ft
Tenant Improvement for the Additional Space, Landlord shall pay such actual
construction cuts; provided, however, that there shall be an adjustment in the
occurrence of the Additional Space Base Rent increase Date (either to lengthen
or shortest the time period before which the Increased Base Rent for the
Additional Space becomes effective and payable) as follows:
(i) If the actual Construction Costs for the Tenant Improvements
for the Additional Space are greater titan Landlord's Additional Construction
Allowance due solely to Tenant's changes, then the amount of such excess shag be
paid try Tenant to Landlord in the form of a shortening of the time period
before which the Additional Space Base Rent Increase Date oars. For example, If
such excess Is $30,000.00, then the Additional Space Base Rent Increase Date
shag occur sooner by four (4) months (and the $627.20 remainder shall be paid by
Tenant to Landlord as additional Base Rent for the Additional Space in the month
preceding the Additional Space Base Rent Increase Dot:).
(ii) Alternatively, if the actual Construction Costs fix the
Tenant Improvements for the Additional Space ass less than Landlord's Additional
Construction Allowance due solely to Tenant's changes, then the shortfall shall
be recaptured by Tenant in tile form of a lengthening of the time period betas
which the Additional Space Base Rent Increase Dale occurs, For example, If tile
shortfall is $30,000.00, then the Additional Space Base Rent Increase Date shad
occur low by four (4) months (and the $627.20 remainder shall be a credit
against the Base Rent for the Additional Space in the month in which the
Additional Space Base Rent Increase Date occurs).
(iii) Notwithstanding anything to the contrary contained in this
Section t (g), N as a result of Tenant changes in the Tenant Improvements for
the Additional Space, the construction costs for the Tenant Improvements for the
Additional Space exceed $406,001.82 ($21.21 per square foot of the Additional
Space), then Tenant shall pay the excess costs to Landlord within ten (10) days
air written request therefore from Landlord. and in arty event prior to the date
Landlord Incurs such costs.
(h) Evidence of insurance Coverage. On the Term Commencement Date.
Tenant shag cause the insurance which Tenant is obligated to obtain under the
Lease to be revised such that R shall also be applicable to and cover the
Original Premises and the Additional Space, and Tenant shall deliver a
Certificate of Insurance therefore to Landlord on the Term Commencement Date.
2. Exercise of Right of First Refusal. The execution of this Amendment shag
be considered as Tenant's exercise of its First Refusal Right contained in
Paragraph 3 of the First Addendum. Therefore, said Paragraph 3 of the First
Addendum is hereby deleted in its entirety and shall have no further force or
effect. Furthermore, as a result of the exercise by Tenant of its post Refusal
Right, same automatically terminated Tenant's Cancellation Option, and as such,
Paragraph 4 of the First Addendum is also hereby deleted in its entirety and
shah have no further force or effect
3. Tenant Estoppel Statement. Tenant hereby certifies and agrees that the
Lease is in full force and effect. Landlord is not currently in default under
the Lease, and, to the best of Tenant's knowledge, no event has occurred which,
with the giving of notice or the passage of time, or both would ripen into
Landlord's default under the Lease. Tenant further acknowledges that the Lease
has rot teen modified or amended in-any way prior to the date of this Amendment.
4. Defined Terms; Captions. All terms in this Amendment not otherwise
define: herein shall have the same definitions as are provided therefore in the
Lease. The captions use: In this Amendment are for convenience of reference only
and shall have no effect upon the interpretation of thus Amendment.
5. Authorization to Sight. Landlord and Tenant hereby warrant and represent
to each other that the persons signing the Lease and this Amendment have the
authority to sign such documents on behalf of such party and that such documents
art binding upon such party in accordance wit their terms. Upon request by
either party hereto, the other parry shall provide reasonable evidence of the
authority of the signatories on its behalf to the Lease and this Amendment.
6. Ratification of Lease. Except as expressly amended and modified herein.
the lease shat remain h full force and effect and, as hereby amended, Is
ratified and confirmed by the panties hereto. !n the event of a conflict between
the provisions of this Amendment and thane of the lease, the provision of this
Amendment shall control,
7. Brokers. The provisions of Paragraph 36 of the lease dealing with the
brokerage commission payable to Comish 6 Carey Commercial and the representation
warranty and indemnity by Tenant contained therein shall also be applicable to
the lease of the Additional Space.
IN WITNESS WHEREOF. the parties hereto have executed this Amendment as of
the date first set forth above.
"LANDLORD" "TENANT"
STANFORD RANCH I, LLC, SPECTRIAN, Inc.
a Delaware limited liability company a Delaware Corporation
By: /s/ Larry D. Kelley By: /s/ Stephen B. Greenspan
------------------------------ ------------------------------------
Name: Larry D. Kelley Name: Stephen B. Greenspan
Title: President Title: Chief Operating Officer
AMENDED EXHIBIT "A"
SCHEMATIC DRAWING SHOWING ORIGINAL PREMISES AND ADDITIONAL SPACE
[TO BE ATTACHED)
SITE PLAN
[GRAPHIC]
STANFORD RANCH DEVELOPMENT
EXHIBIT B
1. One stained ceiling tile at Double Doors
2. Plastic wrap or taps is Supply Air Diffuser
3. Two drywall crack at Office and Lunchroom
4. One toilet tank leaking in Men's Restroom
5. Install Women's Bathroom sign
6. Rolling Door-Requites seal or removal
7. Sprinkler Head leaking
8. Three water stained ceiling tiles
9. One light (2x4) out at end of building
10. Severs discolored light: (lenses, tube: or ballast)
11. Outside door not closing properly (near three stained tile:)
12. Electrical Room - Drywall crack above door
13. Electrical Room - Fine tape outside corner
14. Install Escutcheon at Exit Sigh by restrooms
15. Drywall cracks in back room a Receiving
16. Exterior Dears sticking at T.I. Suite and exterior side
EXHIBIT C