LEASE
This Lease is entered into and made as of the 28th day of April, 2000
by and between Michael A. and Diane L. Edwards (hereinafter together referred to
as "Landlord"), and Adept Technology, INC., a(n) California corporation
(hereinafter referred to as "Tenant"), who, in consideration of the mutual
covenants and agreements set forth below, mutually covenant and agree as
follows:
1. Lease of Premises. In consideration of the rents and covenants
hereinafter set forth, Landlord hereby leases to Tenant, and Tenant hereby
accepts and leases from Landlord, the real property commonly known as 2575 N.
Dragoon, Tucson, Arizona 85745 together with all improvements thereon
(collectively, "Premises"), which are legally described on Exhibit A attached
hereto and made a part hereof.
2. Term. The term of this Lease ("Term") shall be for a period of five
(5) years commencing April 28, 2000 and expiring April 28, 2005 unless sooner
terminated as provided herein. Upon the termination or sooner expiration of the
Term, all improvements to the Premises made by Tenant during the Term shall
become Landlord's property. At any time up until 90 days prior to the expiration
of this Lease, the Landlord grants to Tenant one option to extend the Lease Term
for one period of five (5) years upon terms to be negotiated at the time of the
option request from the Tenant.
3. Rent. Tenant shall pay to Landlord at the office of Landlord, or to
such other person or at such other place as Landlord may from time to time
direct in writing, in lawful money of the United States of America, an annual
rental ("Base Rent") of One Hundred Thirty Six Thousand Nine Hundred Twenty
Dollars ($136,920) payable in equal monthly installments ("Monthly Base Rent")
of Eleven Thousand Four Hundred Ten Dollars ($11,410) in advance on or before
the first day of each and every calendar month of the term of this Lease. If the
Term of this Lease commences on a day other than the first day of a calendar
month, or ends on a day other than the last day of a calendar month, then the
Monthly Base Rent for such fractional month shall be prorated on the basis of a
365-day year. If default shall be made in the due and punctual payment of an
installment of rent, the amount of the installment due and payable shall bear
interest at the rate of eighteen percent (18%) per annum from the due date until
paid.
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Page 1
4. Rent Adjustment. For the lease period of April 28, 2000 to April 28,
2005, there shall be no annual rent adjustment made.
5. Condition of Premises. Tenant's entry and possession of all or any
part of the Premises shall be conclusive evidence as against Tenant that the
Premises are in good order and satisfactory condition when Tenant took
possession thereof. No promise of Landlord or its agents to alter, remodel or
improve the Premises or any improvements on or comprising the same, and no
representation respecting the condition of the Premises or the improvements on
or comprising the same, have been made by Landlord or its agents to Tenant, and
Tenant accepts the same "as is".
6. Use. Tenant shall use and occupy the Premises for the purpose of the
engineering, design, and fabrication of equipment only and for no other purpose
whatsoever. Tenant shall not allow the Premises or the equipment contained
therein to be used for any purpose which may materially increase the rate of
insurance thereon. Tenant shall not permit any transfer by operation of law or
otherwise of its interest in the Premises acquired through this Lease, and will
not permit the Premises to be used for any unlawful purpose, or for any purpose
which may injure the reputation of the Premises or increase the fire hazard of
the same or disturb other tenants or members of the neighborhood. Tenant shall
not allow any signs, cards or placards to be posted or placed on the Premises or
permit any alteration of or addition to any part thereof, without the prior
written consent of Landlord first had.
7. Alterations, Mechanics' Lien. Tenant may not perform any alterations
to or for the benefit of the Premises or any part thereof without the prior
written consent of Landlord first had which will not be unreasonably withheld.
Landlord's consent to any such alterations shall be conditioned upon such
requirements as Landlord deems appropriate including, without limitation, the
submission of detailed plans and specifications therefor and to require Tenant
to furnish to Landlord satisfactory security for the payment of all costs to be
incurred in connection with any such alterations. Furthermore, Tenant shall
furnish Landlord with contractors' affidavits and full and final waivers of lien
covering all labor and materials expended and used in connection with any such
alterations. Tenant shall not permit any mechanic's lien or liens to be placed
upon the Premises thereon during the Term hereof, and in the event of the filing
of such lien, Tenant shall promptly pay and remove the same. If default in the
payment and release of such lien shall continue for ten (10) days after written
notice thereof from Landlord to Tenant, Landlord
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shall have the right and privilege at Landlord's option of paying the same or
any portion thereof without inquiry as to the validity thereof, and any amounts
so paid, including expenses and interest, shall be additional rent hereunder due
from Tenant to Landlord and shall be repaid to Landlord immediately on rendition
of a statement therefor.
8. Indemnity. Tenant covenants and agrees that it will indemnify,
protect, defend and hold Landlord harmless against and from any penalty or
damages or charges imposed for any violation of any laws or ordinances, whether
occasioned by the act or neglect of Tenant or those holding under Tenant, and
that Tenant shall at all times protect, indemnify, defend and hold Landlord and
its officers, directors, shareholders, partners and beneficiaries harmless
against and from any and all claims, including workmen's compensation claims,
losses, costs, damages or expenses arising out of or from or relating to any
occurrence on or about the Premises causing injury to any person or damage to
property whomsoever or whatsoever; and shall protect, indemnify, defend and hold
all of them harmless against and from any and all claims and against and from
any and all losses, costs, damages and expenses arising out of any failure of
Tenant in any respect to comply with or perform all the requirements and
provisions hereof, and Tenant shall defend at its expense any such claims
against said persons and entities.
9. Non-Liability of Landlord. (a) Landlord shall be not liable for any
damage occasioned by failure to keep the Premises in repair, nor for any damage
done or occasioned by or from plumbing, gas, water, sprinkler, steam or other
pipes or sewerage or the bursting, leaking or running of any pipes, tank or
plumbing fixtures, in, above, upon or about Premises or any building or
improvement thereon, nor for any damage occasioned by water or ice being upon or
coming through the roof, skylights, trap doors or otherwise, nor for any damages
arising from act or neglect of any owners or occupants of adjacent or contiguous
property.
(b) The term "Landlord" as used herein shall mean only the owner or
owners at the time in question or at issue of the fee title to, or a lessee's
interest in a ground lease of, the Premises. Except as otherwise provided
herein, in the event of a transfer of such title or interest, Landlord herein
named (and in case of any subsequent transfers, the then grantor) shall be
relieved from and after the date of such transfer of all liability with respect
to Landlord's obligations thereafter to be observed or performed, provided that
any funds in the possession of Landlord, or the then grantor at the time of such
transfer, in which Tenant has an interest, shall be delivered or credited to
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the grantee. The obligations contained in this Lease to be performed or observed
by Landlord shall, subject to the foregoing, be binding on Landlord's successors
and assigns, but only during their respective periods of ownership.
10. Taxes, Utilities and Operating Expenses. (a) Tenant shall contract
for and pay to either Landlord on demand or the governmental entities and
utility companies directly, in addition to the Base Rent above specified, all
real estate taxes and assessments of every kind and nature whatsoever, water
rents, gas, electric, light and power bills taxed, consumed by Tenant or levied
or charged against the Premises during the Term of this Lease; and in the event
said real estate taxes and assessments, water rents and bills for gas, electric,
light and power and such other costs and expenses shall not be paid when due,
Landlord shall have the right, but not the obligation, to pay the same, which
amounts so paid, together with any sums paid by Landlord to keep the Premises in
a clean and healthy condition as required hereby, shall be so much additional
Base Rent and shall be payable with the installment of Monthly Base Rent next
due thereafter.
(b) Tenant shall pay to Landlord, or reimburse Landlord for, specific
or general taxes or excises on rents or other income from the Premises and
specific or general gross receipts taxes or excises on rents or other income
from the Premises.
(c) Tenant acknowledges and agrees that this Lease is intended to be a
so-called "net lease" in that it is to be completely carefree to Landlord,
except as expressly stated otherwise herein; and that Landlord is not
responsible during the Term for any costs, charges, expenses or outlays of any
nature whatsoever arising from or relating to the Premises, or the use or
occupancy thereof, or the contents thereof, or the business carried on therein;
and furthermore, Tenant shall pay all charges, expenses, costs, and outlays of
every nature and kind relating to the Premises, except as otherwise expressly
stated in this Lease.
(d) Prior to Tenant entering into any agreement with any third party
for any maintenance or repair of any part of the Premises, Tenant shall submit
the name thereof to Landlord for its prior written approval not to be
unreasonably withheld.
11. Access to Premises. Tenant shall allow Landlord access to the
Premises at all times during normal business hours for the purpose of examining
or exhibiting the same, or to make any
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repairs Landlord so elects or alterations thereto which Landlord may reasonably
see fit to make.
12. Holding Over. Tenant shall, at the expiration or sooner termination
of this Lease by lapse of time or otherwise, yield up immediate possession of
the Premises to Landlord, and failing to do so, shall pay as liquidated damages
for the whole time such possession is withheld, the sum of Five Hundred Dollars
($500) per calendar day; provided, however, the provisions of this paragraph
shall not be held as a waiver by Landlord of any right of re-entry as
hereinafter set forth; nor shall the receipt of said rent or any part thereof,
or any other act in apparent affirmance of tenancy, operate as a waiver of the
right to terminate this Lease and the Term hereby granted for the period still
unexpired for a breach of any of the covenants contained herein.
13. Fire and Casualty. In the event the Premises or any part thereof
shall be rendered untenantable during any portion of the Term of this Lease by
fire or other casualty, Landlord, at its option, may terminate this Lease or
require Tenant, at is cost and expense, to repair the same within 180 days
thereafter. If Tenant is required to repair the Premises, this Lease shall
remain in effect, provided such repairs are completed within said time. If
Tenant shall not repair the Premises within said time, then at the end of such
time, the Term hereby created shall terminate. If this Lease is terminated by
reason of fire or other casualty as herein specified, Base Rent shall be
apportioned and paid to the date of such fire or other casualty.
14. Signs. Tenant may place signs on or about the Premises and may
remove the same; provided, however, that Tenant receives any required
governmental approvals therefor and the placement of such signs shall in no way
impair or damage any structure of the Premises. All signs shall be removed by
Tenant, without damage to the Premises, and at its cost, upon the expiration of
the Term or the termination of this Lease. Tenant shall comply with all codes,
zoning and other applicable ordinances and all other laws and regulations with
respect to the size, placement and appearance of such signs prior to the
installation thereof.
15. Repairs. Except as otherwise provided herein, Landlord shall have
no obligation to perform any repairs or replacements to or of the Premises or to
incur any expense for replacing or repairing any improvements on or comprising
the Premises. Tenant shall keep the Premises, including all improvements,
fixtures and appurtenances thereon and therein, in good repair, replacing all
broken glass with glass of the same size and quality as that broken, and will
replace all damaged equipment and fixtures with
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others of equal quality, and shall keep the Premises, including adjoining
alleys, if any, in a clean and healthful condition and in compliance with all
conditions, covenants and restrictions affecting the Premises and all applicable
municipal zoning codes and ordinances, governmental regulations and laws, all at
Tenant's sole cost and expense. Upon the expiration of the Term or sooner
termination of this Lease, Tenant shall yield up the Premises to Landlord in
good condition and repair, loss by ordinary wear excepted, and shall deliver the
keys therefor at the place of payment of Monthly Base Rent. Except as otherwise
provided herein, Tenant hereby assumes the full and sole responsibility for all
repairs to, and for any condition, operation, maintenance and management of, the
Premises as of the date hereof and throughout the Term of this Lease. If Tenant
does not make repairs as required hereunder promptly and adequately, Landlord
may, but is not obligated to, make such repairs and pay the costs thereof, and
such costs shall be so much additional Base Rent immediately due from and
payable by Tenant to Landlord upon demand therefor.
16. Environmental Concerns. (a) As used herein, the term "Hazardous
Material" shall mean any substance or material which has been determined by any
state, federal or local governmental authority to be capable of posing a risk of
injury to health, safety or property, including all of those materials and
substances designated as hazardous or toxic by the county in which the Premises
are located, the U.S. Environmental Protection Agency, the Consumer Product
Safety Commission, the U.S. Food and Drug Administration, the Arizona Department
of Environmental Quality, or any other governmental agency now or hereafter
authorized to regulate materials and substances in the environment.
(b) Tenant agrees not to introduce any Hazardous Material in, on or
adjacent to the Premises without (i) obtaining Landlord's prior written
approval, (ii) providing Landlord with thirty (30) days prior written notice of
the exact amount, nature and manner of intended use of such Hazardous Material,
and (iii) complying with all applicable federal, state and local laws, rules,
regulations, policies and authorities relating to the storage, use, disposal and
clean up of Hazardous Material, including, but not limited to, the obtaining of
all proper permits.
(c) Tenant shall immediately notify Landlord of any inquiry, test,
investigation or enforcement proceeding by, against or directed at Tenant or the
Premises concerning any Hazardous Material. Tenant acknowledges that Landlord,
as the owner of the Premises, shall have the right, at its election, in
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its own name or as Tenant's agent, to negotiate, defend, approve, and appeal, at
Tenant's expense, any action taken or order issued with regard to a Hazardous
Material by any applicable governmental authority.
(d) If Tenant's storage, use or disposal of any Hazardous Material in,
on or adjacent to the Premises results in any contamination of the Premises, the
soil, surface or groundwater thereunder or the air above and around the Premises
(i) requiring remediation under federal, state or local statutes, ordinances,
regulations or policies, or (ii) at levels which are unacceptable to Landlord,
in Landlord's sole and absolute discretion, Tenant shall clean-up the
contamination immediately, at Tenant's sole cost and expense. Tenant further
agrees to indemnify, defend, protect and hold Landlord harmless from and against
any claims, suits, causes of action, fines, penalties, costs, damages, loss and
fees, including attorneys' fees and costs, arising out of or in connection with
(i) any clean-up work, inquiry or enforcement proceeding relating to Hazardous
Material currently or hereafter used, stored or disposed of by Tenant or its
agents, employees, contractors, licensees or invitees on or about the Premises,
and (ii) the use, storage, disposal or release by Tenant of its agents,
employees, contractors, licensees or invitees of any Hazardous Material on or
about the Premises.
(e) Notwithstanding any other right of entry granted to Landlord under
this Lease, Landlord shall have the right to enter the Premises or to have
consultants enter the Premises throughout the Term at reasonable times during
business hours for the purposes of determining: (1) whether the Premises are in
conformity with federal, state and local statutes, regulations, ordinances and
policies, including those pertaining to the environmental condition of the
Premises; (2) whether Tenant has complied with all of its obligations hereunder;
and (3) the corrective measures, if any, required of Tenant to ensure the safe
use, storage and disposal of Hazardous Material. Tenant shall provide access and
reasonable assistance for such inspections. Such inspections may include, but
are not limited to, entering the Premises with machinery for the purpose of
obtaining laboratory samples. Landlord shall not be limited in the number of
such inspections during the Term. If, during such inspections, it is found that
Tenant's use of Hazardous Material constitutes a violation of this Lease, Tenant
shall reimburse Landlord for the cost of such inspections within ten (10) days
of receipt of a written demand therefor. If such consultants determine that the
Premises are contaminated with Hazardous Material or in violation of any
applicable environmental law, Tenant shall, in a timely manner, at its expense,
remove such Hazardous Material or otherwise comply with the recommendation of
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such consultants to the reasonable satisfaction of Landlord and any applicable
governmental agencies. If Tenant fails to do so, Landlord, in its sole
discretion, may, in addition to all other remedies available to Landlord under
this Lease and at law and in equity, cause the violation or contamination to be
remedied at Tenant's sole cost and expense. The right granted to Landlord herein
to inspect the Premises shall not create a duty on Landlord's part to inspect
the Premises, or liability of Landlord for Tenant's use, storage or disposal of
Hazardous Material, it being agreed and acknowledged that Tenant shall be solely
responsible for all liability in connection therewith.
(f) Tenant shall surrender the Premises to Landlord upon the expiration
or earlier termination of this Lease free of Hazardous Material and in a
condition which complies with all governmental statutes, ordinances, regulations
and policies, recommendations of consultants hired by Landlord, and such other
reasonable requirements as may be imposed by Landlord.
(g) Tenant's obligations hereunder and all indemnification obligations
of Tenant under this Lease shall survive the expiration or earlier termination
of this Lease.
17. Insurance. (a) Tenant covenants and agrees that it shall at all
times during the Term of the Lease, at its own cost and expense, carry and
maintain general liability insurance, including contractual liability insurance,
and property damage insurance for personal injury, death or property damage, or
destruction of property, occurring in, on or about the Premises with limits not
less than One Million Dollars ($1,000,000.00) per occurrence or in such greater
amounts as Landlord may reasonably require from time to time. Tenant shall also
carry workmen's compensation insurance as required by law and such other
insurance in such amounts as Landlord may reasonably require from time to time.
(b) Tenant, at its expense, shall at all times during the Term of this
Lease keep the Premises and insured against loss by fire or any other casualty,
with extended coverage, for 100% of the full replacement cost therefor, and
vandalism and malicious mischief coverage, and shall keep all such insurance in
full force and effect during the entire Term of this Lease.
(c) The foregoing insurance shall be in companies authorized to do
business in the State of Arizona and in form, substance and amount (where not
stated above) satisfactory to Landlord and any mortgagee or beneficiary of
Landlord. The foregoing insurance shall specify Landlord, its successors,
mortgagee, trustee, beneficiary and assigns as additional
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insureds or payment of loss thereunder to Landlord, its successors, mortgagee,
trustee, beneficiary or assigns. Policies or certificates evidencing such
insurance shall be delivered to Landlord within thirty (30) days after the
execution of this Lease, and renewals thereof shall be delivered to the Landlord
at least thirty (30) days prior to the expiration dates of the respective
policies. In the event Landlord at any time shall cause a mortgage or deed of
trust to be placed against the Premises, Landlord shall be entitled to have all
appropriate insurance policies called for in this Lease endorsed with a standard
mortgagee loss payable clause, making losses, if any, payable to the mortgagee
or trustee or beneficiary as their interests may appear. Each of said policies
shall provide that Landlord be provided with thirty (30) days' advance notice of
intent to cancel the same.
(d) In the event Tenant shall at any time fail, neglect or refuse to
procure insurance required hereunder or pay the premium costs as hereinbefore
provided therefor, or to provide Landlord upon demand with evidence of insurance
as required herein, then Landlord may at its discretion procure or renew such
insurance, and any amounts paid therefor by Landlord shall be so much additional
rent due from Tenant to Landlord to be paid along with the next installment of
Monthly Base Rent hereunder, with interest at the rate of eighteen percent (18%)
per annum from the date of payment thereof by Landlord until the repayment
thereof to Landlord by Tenant.
(e) Notwithstanding the foregoing, Landlord may during the Term of this
Lease keep the improvements of the Premises insured against loss by fire or any
other casualty with such extended coverage and in such amounts as Landlord may
reasonably deem necessary from time to time. In such event, Tenant shall pay
Landlord upon demand the annual premium costs for such insurance.
18. Assignment or Subletting. Tenant shall not transfer, convey,
assign, encumber or hypothecate any interest in this Lease or in the Premises or
sublease all or any part thereof, or allow any other person or entity to occupy
or use all or any part of the Premises without first obtaining Landlord's prior
written consent, which may be withheld by Landlord in its sole discretion. Any
transfer or a series of transactions resulting in the transfer of control of
Tenant, other than by reason of death, shall be deemed to be an assignment and
transfer of Tenant's interest under this Lease for purposes of this Section 19.
The term "control", as used herein shall mean the power to directly or
indirectly direct, or cause a direction of, the management and policies of
Tenant.
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19. Condemnation. (a) If the whole of the Premises shall be taken or
condemned for a public or quasi-public use or purpose by a competent authority,
or if a portion of the Premises shall be so taken that as a result thereof the
balance of either cannot be used for the same purpose and with substantially the
same utility to Tenant as immediately prior to such taking, or if the taking is
material and substantial and Landlord elects to terminate this Lease (Landlord
is hereby given such right to terminate), which election shall be made by giving
written notice thereof to Tenant within thirty (30) days after delivery of
possession to the condemning authority, then in any of such events, the Term of
this Lease shall terminate upon delivery of possession to the condemning
authority, and any award, compensation or damages (hereinafter referred to as
the "Award") shall be paid to and be the sole property of Landlord, whether the
Award shall be made as compensation for diminution of the value of the leasehold
estate or the fee of the Premises or otherwise; and Tenant hereby assigns to
Landlord all of Tenant's right, title and interest, if any, in and to the Award.
Tenant shall continue to pay rents and other charges hereunder until the Lease
is terminated and any impositions and insurance premiums prepaid by Tenant or
any unpaid impositions or other rents and charges which accrue prior to the
termination, shall be adjusted between the parties hereto.
(b) Notwithstanding anything to the contrary set forth in this Lease,
in the event that one or more of the following are taken through condemnation,
Tenant may terminate this Lease upon thirty (30) days' prior written notice to
Landlord:
(i) ten percent (10%) or more of the usable square feet of the
Premises; or
(ii) a lesser portion of the Premises that, if taken, would materially
and adversely affect Tenant's use and occupancy of the Premises for the uses set
forth in Paragraph 6 hereof.
(c) Notwithstanding anything to the contrary set forth in this Lease,
if any part of the Premises is taken by condemnation and this Lease is not
terminated, Rent shall be proportionately reduced, Landlord shall, at Landlord's
sole expense, accomplish all necessary restoration to the Premises resulting
from the Condemnation and Rent shall be abated for the portion of the remaining
Premises not usable by Tenant until Landlord completes the restoration.
20. Default. (a) The following events are hereby defined as "Events of
Default":
(1) The failure of Tenant to pay an installment of rent or to
make any other payments or deposits of money as required hereunder when due if
the failure continues for five (5)
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Page 10
days after written notice of the failure from the Landlord to the Tenant; or
(2) The failure of Tenant to perform or observe any of the
other covenants, conditions and agreements of this Lease on the part of Tenant
to be performed or observed, and the continuance of such failure for a period of
twenty (20) days after notice in writing thereof (which notice shall specify the
respect in which Landlord contends that Tenant has failed to perform or observe
any of such covenants, conditions and agreements) from Landlord to Tenant; or
(3) (i) The filing of an application by Tenant for, or a
consent to, the appointment of a receiver, trustee or liquidator of itself or of
all its assets; or
(ii) The filing by Tenant of a voluntary petition in
bankruptcy or the filing of a pleading in any court
of record admitting in writing its inability to pay
its debts as they come due; or
(iii) The making by Tenant of a general assignment for the
benefit of creditors; or
(iv) The filing by Tenant of an answer admitting the
material allegations of, or its consenting to, or
defaulting in answering a petition against it in any
bankruptcy proceeding; or
(4) The entry of an order, judgment or decree by any court of
competent jurisdiction adjudicating Tenant a bankrupt, or appointing a receiver,
trustee, or liquidator of it or all of its assets; or
(5) The abandonment or vacation of the Premises by Tenant or
the failure of Tenant to carry on its business at the Premises for a period of
five (5) consecutive days.
(b) Landlord may treat any one or more Events of Default defined above
as a breach of this Lease and thereupon, at its option, Landlord may have and
exercise, in addition to all other remedies provided by law or in equity, any
one or more of the following remedies:
(1) Landlord may terminate this Lease and the Term
created hereby in which event Landlord may forthwith
repossess the Premises and be entitled
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Page 11
to recover forthwith as damages a sum of money equal
to the value of the rent and other sums provided to
be paid by Tenant due and owing prior to the date of
such termination, and any other sum of money and
damages due or to become due to Landlord from Tenant;
or
(2) Landlord may terminate Tenant's right of possession
only and may repossess the Premises by forcible entry
and detainer suit, or otherwise, without demand or
notice of any kind to Tenant (except as hereinabove
expressly provided) and without terminating this
Lease, in which event Landlord may, but shall be
under no obligation so to do, relet all or any part
of the Premises for such rent and upon such terms as
shall be satisfactory to Landlord (including the
right to relet the Premises for a term greater or
lesser than that remaining under the Term of this
Lease and the right to relet the Premises as a part
of a larger area and the right to change the
character or use made of the Premises). For the
purpose of such reletting, Landlord may make such
repairs, changes, alterations or additions in or to
the Premises which may be necessary or convenient. If
Landlord shall fail or refuse to relet the Premises,
then Tenant shall pay to Landlord as damages a sum
equal to the amount of the rent reserved in this
Lease for such period or periods. If the Premises are
relet and a sufficient sum shall not be realized from
such reletting after paying all of the costs and
expenses of repairs, changes, alterations and
additions and the expense of such reletting, and the
collection of the rent accruing therefrom, to satisfy
the rents and other charges above provided to be
paid, Tenant shall satisfy and pay any such
deficiency upon demand therefor from time to time;
and Tenant agrees that Landlord may file suit to
recover any sums falling due under the terms of this
paragraph and any other sums due under this Lease
from time to time, and that any suit or recovery of
any portion due Landlord hereunder shall be no
defense to any subsequent action brought for any
amount not theretofore reduced to judgment in favor
of Landlord.
(c) Each right, power and remedy of Landlord provided for in this Lease
shall be cumulative and concurrent and shall be in
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Page 12
addition to every other right, power or remedy now or hereafter existing at law
or in equity or by statute or otherwise, and the exercise or commencement of the
exercise by Landlord of any one or more of the rights, powers or remedies
provided for in this Lease or now or hereafter existing at law or in equity, or
by statute or otherwise, shall not preclude the simultaneous or later exercise
by Landlord of any or all such other rights, powers or remedies.
21. Subordination. (a) This Lease, at Landlord's option, shall be
subordinate to any ground lease, mortgage, deed of trust, or any other
hypothecation for security now or hereafter placed upon the Premises and to any
and all advances made on the security thereof and to all renewals,
modifications, consolidations, replacements and extensions thereof. If Landlord
or any mortgagee, trustee or ground lessor shall elect to have this Lease prior
to the lien of a mortgagee, deed of trust or ground lease, and shall give
written notice thereof to Tenant, this Lease shall be deemed prior to such
mortgage, deed of trust or ground lease, whether this Lease is dated prior or
subsequent to the date of said mortgage, deed of trust or ground lease or the
date of recording thereof.
(b) Tenant shall execute any documents required to effectuate such
subordination or to make this Lease prior to the lien of any mortgage, deed of
trust or ground lease, as the case may be (including, without limitation, a
Subordination, Non-Disturbance and Attornment Agreement in the standard form
used by Landlord's lender), and failing to do so within ten (10) days after
written demand therefor, does hereby make, constitute, and irrevocably appoint
Landlord as Tenant's attorney in fact and in Tenant's name, place and stead, to
do the same. Upon Tenant's written request to Landlord, Landlord shall request
that its lender issue to Tenant a non-disturbance agreement on such lender's
standard form; provided, however, the failure of such lender to issue a
non-disturbance agreement shall in no way affect Tenant's obligations under this
Lease.
22. Notices. Notices and demands required or desired to be given
hereunder shall be given by personal delivery or be sent by certified mail,
postage prepaid, return receipt requested, addressed, if to Landlord, at the
address at which the last rental payment was made or required to be made, and if
to Tenant, addressed to Tenant at the Premises, or such other address as was
last specified respectively by notice by Landlord or Tenant. Notices and demands
shall be deemed to have been given when mailed or, if made by personal delivery,
then upon such delivery.
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23. Estoppel Certificate by Tenant. Tenant agrees at any time and from
time to time, upon not less than five (5) days prior written request by
Landlord, to execute, acknowledge and deliver to Landlord a statement in writing
in form and content requested by Landlord or its lender or potential purchaser
of the Premises certifying that this Lease is unmodified and that no default
exists hereunder (except as shall be specified and which are known to Tenant),
and also certifying the dates to which the rents and other charges have been
paid in advance, if any, and such other matters so requested; it being intended
that any such statement delivered pursuant to this section may be relied upon by
any prospective purchaser of the fee or a mortgagee, trustee, beneficiary or
assignee of the Premises.
24. Mortgagee Protection. (a) If, in connection with obtaining
financing for the Premises or any portion thereof, Landlord's lender shall
request reasonable modifications to this Lease as a condition to such financing,
Tenant shall not unreasonably withhold, delay or defer its consent to such
modifications, provided such modifications, do not materially adversely affect
Tenant's rights under this Lease.
(b). Tenant shall give to any trust deed or mortgage holder ("Holder"),
by prepaid certified mail, return receipt requested, at the same time as it is
given to Landlord, a copy of any notice of default given to Landlord, provided
that prior to such notice Tenant has been notified, in writing, (by way of
notice of assignment of rents and leases, or otherwise) of the address of such
Holder. Tenant further agrees that if Landlord shall have failed to cure such
default within the time provided for in this Lease, then notwithstanding any
other terms or conditions hereof, the Holder shall have an additional thirty
(30) days after the expiration of such period, or after receipt of such notice
from Tenant (if such notice to the Holder is required by this Section 38),
whichever shall later occur, within which to cure such default, or if such
default cannot be cured within that time, then such additional time as may be
necessary if within such thirty (30) days, any Holder has commenced and is
diligently pursuing the remedies necessary to cure such default (including, but
not limited to, commencement of foreclosure proceedings, if necessary, to effect
such cure), in which event this Lease shall not be terminated.
25. Joint and Several Obligation. In the event more than one party or
person is the "Tenant" under this Lease, the obligation to pay rent and perform
and observe all of the other covenants, conditions and provisions of this Lease
shall be deemed to be the joint and several obligation of all of said parties.
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26. Captions and Headings. The captions and headings throughout this
Lease are for convenience and reference only, and shall in no way be held or
deemed to define, limit or construe any of the provisions of this Lease.
27. Entire Agreement. This Lease supersedes any and all agreements
between the parties hereto regarding the Premises and sets forth the entire
agreement between the parties hereto with respect to the same and shall be
binding upon and inure to the benefit of the parties hereto and their respective
legal representatives, heirs, successors and assigns.
28. Amendments. None of the provisions of this Lease shall in any
manner be altered, waived, modified, changed or abandoned except by a written
instrument executed by each of the parties hereto.
29. No Rent Deduction or Set Off. Tenant's covenant to pay Base Rent is
and shall be independent of each and every other covenant of this Lease. Tenant
agrees that any claim by Tenant against Landlord shall not be deducted from Base
Rent nor set off against any claim for Base Rent in any action.
30. Rent After Notice or Suit. It is further agreed by the parties
hereto that after the service of notice, or the commencement of a suit or after
final judgment for possession of the Premises, Landlord may receive and collect
any rent due, and the payment of said rent shall not waive or affect said
notice, suit, or judgment.
31. Plurals; Successors. The words "Landlord" and "Tenant" wherever
herein used shall be construed to mean "Landlords" and "Tenants" in the event
more than one person or entity constitutes either party to this Lease; and all
the covenants and agreements contained herein shall be binding upon, and inure
to the benefit of, their respective successors, heirs, executors, administrators
and assigns. In the event Landlord or any successor owner of the Premises or the
Project shall convey or otherwise dispose of all or any portion thereof to
another person or entity, such other person or entity shall in its own name
thereupon be and become the "Landlord" hereunder and shall assume fully and be
liable for all liabilities and obligations of this Lease to be performed by
Landlord that first arise after the date of conveyance, and such original
Landlord or successor owner shall, from and after the date of conveyance, be
free of all liabilities and obligations not then incurred.
32. Landlord's Lien. Landlord shall have a first lien upon any and all
rents from permitted subtenants or assignees of
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Tenant, if any, upon the interest of Tenant under this Lease, and upon all
personal property and fixtures of Tenant located in or upon the Premises, to
secure the payment of all rent and other obligations due under this Lease.
33. Rules and Regulations. Tenant shall observe all rules and
regulations reasonably promulgated by Landlord from time to time, and all
changes thereto upon notice thereof.
34. Landlord's Expenses. Tenant shall pay on demand Landlord's
expenses, including reasonable attorney's fees, expenses and administrative
hearing and court costs incurred either directly or indirectly in enforcing any
obligation of Tenant under this Lease, in curing any default by Tenant
hereunder, in connection with appearing, defending or otherwise participating in
any action or proceeding arising from the filing, imposition, contesting,
discharging or satisfaction of any lien or claim for lien, in defending or
otherwise participating in any legal proceedings initiated by or on behalf of
Tenant wherein Landlord is not adjudicated to be in default under this Lease, or
in connection with any investigation or review of any conditions or documents in
the event Tenant requests Landlord's approval or consent to any action of Tenant
which may be desired by Tenant or required of Tenant hereunder.
35: Ownership, Authority and Quiet Enjoyment. Notwithstanding anything
to the contrary set forth in this Lease, Landlord represents and warrants that
it is the true and lawful owner of the Building, the Premises and the real
property upon which the Building is located, that Landlord is lawfully empowered
to enter into this Lease and that so long as Tenant shall perform all of
Tenant's covenants and obligations hereunder, Tenant shall have and enjoy quiet
and peaceable possession of the Premises from and after Landlord's delivery of
the Premises to Tenant and until the end of the Lease Term.
36: Ownership of Alterations. Tenant may remove any alterations,
improvements, signs, fixtures or equipment that it installs or places in, on or
about the Premises from time to time. Tenant shall be entitled to all
depreciation, amortization and other tax benefits with respect thereto. Tenant
must repair any damage to the Premises caused by that removal. By written notice
to Tenant at least either sixty (60) days before expiration of the Lease Term or
fifteen (15) days after any earlier termination of this Lease, Landlord may
require Tenant, at Tenant's sole expense, to remove any alterations that cannot
be used for ordinary general office purposes and restore the Premises to their
configuration and condition before the alterations were made (unless Landlord
previously notified Tenant
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that such removal would not be required). If Tenant fails to complete that
restoration before expiration of the Lease Term or, in the case of earlier
termination, within fifteen (15) days after written notice from Landlord
requesting the restoration, Landlord may do so and charge the cost of the
restoration to Tenant. On the written request of Tenant, Landlord shall promptly
inform Tenant in writing whether Landlord considers a particular alteration or
proposed alteration to be usable for ordinary general office purposes.
37: Landlord Indemnity. Notwithstanding anything to the contrary set
forth in this Lease, Landlord shall (i) be liable for any and all injury,
interference, cost, expense, loss and/or damage caused to Tenant and/or any one
of Tenant's agents, employees, representatives or invitees as a result of
Landlord's (a) negligent acts or omissions, (b) willful misconduct or (c)
repairs, restorations or maintenance which materially and adversely interfere
with Tenant's use of the Premises and (ii) indemnify and hold harmless each of
Tenant and/or any one of Tenant's agents, employees, representatives or invitees
for all such injury, interference, cost, expense, loss and/or damage.
38. Hazardous Material. Notwithstanding anything to the contrary set
forth in this Lease, Landlord warrants and represents to Tenant that, to the
best of Landlord's actual knowledge without independent investigation or
inquiry, as of the effective date of the Lease:
(a) there has been no release onto or under the Premises of any
Hazardous Material;
(b) the Premises contain no PCBs, PCB-contaminated electrical equipment
or asbestos- containing materials; and
(c) Landlord has received no notice of any inquiry, investigation,
proceeding or claim by any government agency or other person regarding the
presence of Hazardous Material on, under or about the Premises.
Notwithstanding anything to the contrary set forth in this Lease, if, during the
Lease Term (including any extensions), either Landlord or Tenant becomes aware
of (a) any actual or threatened release of any Hazardous Material on, under or
about the Premises or (b) any inquiry, investigation1 proceeding or claim by any
government agency or other person regarding the presence of Hazardous Material
on, under or about the Premises, that party shall give the other party written
notice of the release or investigation within five (5) days after learning of it
and shall simultaneously furnish to the other party copies of any claims,
notices of violation, reports or other writings received by the party providing
notice that concerns the release or investigation.
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39. Hazardous Material. Notwithstanding anything to the contrary set
forth in this Lease, Landlord and Tenant shall, at that party's sole expense and
with counsel reasonably acceptable to the other party, indemnify, defend and
hold harmless the other party and the other party's shareholders, directors,
officers, employees, partners, affiliates, agents and successors with respect to
all losses arising out of or resulting from the release of any Hazardous
Material in or about the Premises by that party or that party's agents,
assignees, sublessees, contractors or invitees. This indemnification includes
all losses, costs of characterization, costs of removal, remedial actions,
repairs, liabilities, obligations, penalties, fines, claims, actions (including
remedial or enforcement actions of any kind and administrative or judicial
proceedings, orders or judgments), damages (including consequential and punitive
damages) and costs (including attorney, consultant and expert fees and expenses)
resulting from the release. This indemnification shall survive the expiration or
termination of this Lease.
40: Tenant Repairs.
Subject to anything else to the contrary set forth in this Lease, Tenant shall,
at Tenant's sole expense, repair and maintain in good order and condition
(reasonable wear and tear excepted):
(a) the nonstructural portions of the Premises but including parking
lot surfaces;
(b) all portions of the Premises, including those listed under the
responsibility of the Landlord that were damaged by the Tenant or Tenant's
employee, agent, or visitor.
(c) all Premises Systems (as below defined).
"Premises Systems" means all systems and equipment that serve only the Premises.
41: Landlord Repairs.
Subject to anything else to the contrary set forth in this Lease, Landlord
shall, at Landlord's sole expense, repair and maintain in good order and
condition (reasonably wear and tear excepted):
(a) the structural portions of the Premises except as those described
in Paragraph 40(b);
(c) the exterior portions of the real property and the improvements
collectively constituting the Premises except as those described in Paragraph
40.
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42. Governing Law. The laws of the State of Arizona shall govern and
control the validity, construction, performance and enforcement of this Lease.
43. Severability. Wherever possible each provision of this Lease shall
be interpreted in such manner as to be effective and valid under applicable law.
In the event any provision of this Lease shall be prohibited by or held invalid
or unenforceable under applicable law, such provision shall be ineffective to
the extent of such prohibition, invalidity or unenforceability, without
affecting the remainder of such provision or the remaining provisions of this
Lease.
44. Official Notice. Tenant shall promptly deliver to Landlord copies
of any and all notices received from any governmental authority or agency
relating to or affecting the Premises.
45. Termination of Prior Leases. Any and all prior leases by and
between Landlord and Tenant (or any predecessor thereof) relating to the
Premises are hereby terminated and are no longer of any force or effect.
IN WITNESS WHEREOF, the parties have executed this Lease as of the date
first above written.
"LANDLORD" "TENANT"
/s/ Michael A. Edwards
- ---------------------------- Adept Technology, Inc. a
Michael A. Edwards California corporation
/s/ Diane L. Edwards By: /s/ Michael W. Overby
- ---------------------------- -----------------------
Diane L. Edwards
Title: CFO
--------------------
Lease for 2575 N. Dragoon, Tucson, AZ
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EXHIBIT A
The premises is a free-standing building and grounds located at 2575 N. Dragoon,
Tucson, Pima County, Arizona with a legal description of: LOT 9 OF CENTER POINTE
COMMERCE CENTER ACCORDING TO THE MAP RECORDED IN BOOK 49 OF MAPS, PAGE 84,
RECORDS OF PIMA COUNTY, ARIZONA
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