Exhibit 10.10
SUBLEASE
BETWEEN
XXXXX & XXXXXXXXXX GRAPHICS CORPORATION, A UTAH CORPORATION
AS LANDLORD
AND
ADESSO HEALTHCARE TECHNOLOGY SERVICES, INC., A CALIFORNIA CORPORATION
AS TENANT
0000 Xxxxxx Xxxx
Xxx Xxxx, Xxxxxxxxxx 00000 (Project 701C)
Dated: February 1, 2000
TABLE OF CONTENTS
Page
1. PREMISES ..............................................................................1
1.1 Description and Lease of Premises ............................................1
1.2 Delivery of Premises .........................................................1
1.3 Early Occupancy ..............................................................2
2. MASTER LEASE ..........................................................................2
2.1 Tenancy Subject to Master Lease ..............................................2
2.2 Assumption of Certain Obligations ............................................2
2.3 Receipt of Master Lease ......................................................3
3. SECURITY DEPOSIT ......................................................................3
4. TERM ..............................................................................4
4.1 Commencement Date ............................................................4
4.2 Expiration of Term ...........................................................4
5. RENT...................................................................................4
6. ADDITIONAL RENT .......................................................................5
7. PAYMENT OF RENT .......................................................................5
8. USE CLAUSE ............................................................................5
9. DISCLOSURE OF HAZARDOUS MATERIALS .....................................................5
9.1 Landlord's knowledge of Hazardous Materials ..................................5
9.2 Environmental Indemnity ......................................................5
9.3 Survival .....................................................................6
10. PROHIBITED USES; HAZARDOUS MATERIALS ..................................................6
10.1 Prohibited Uses ..............................................................6
10.2 Hazardous Wastes .............................................................6
10.3 Remediation ..................................................................7
10.4 Environmental Indemnity ......................................................7
10.5 Survival .....................................................................8
11. COMPLIANCE WITH LAW ...................................................................8
11.1 Premises and Building ........................................................8
11.2 Tenant's Compliance ..........................................................8
-i-
TABLE OF CONTENTS
(CONTINUED)
Page
11.3 CONDITION OF THE PREMISES ........................................................8
12. ALTERATIONS ...........................................................................9
13. MAINTENANCE AND REPAIR ................................................................9
13.1 Tenant's Obligations .........................................................9
13.2 Landlord's Obligations ......................................................10
13.3 Tenant's ACM Obligations ....................................................10
14. ADA COMPLIANCE .......................................................................10
15. LIENS ................................................................................10
16. OPERATION ............................................................................11
17. UTILITIES ............................................................................11
17.1 Transition Period ...........................................................11
17.2 Remaining Term ..............................................................11
18. RULES AND REGULATIONS ................................................................11
19. ENTRY BY LANDLORD ....................................................................11
20. COMMON AREA; ASSESSMENTS .............................................................12
20.1 Common Area of Project ......................................................12
20.2 Common Area of Premises During Transition Period ............................12
21. PARKING .............................................................................12
22. TAXES .............................................................................12
23. INSURANCE; INDEMNIFICATION ...........................................................12
23.1 Indemnification .............................................................12
23.2 Waiver of Certain Rights ....................................................13
23.3 Liability Insurance Coverage and Limits .....................................13
23.4 Other Insurance .............................................................13
23.5 Policy Requirements .........................................................14
23.6 Contractor's Insurance ......................................................14
23.7 Workers' Compensation Insurance .............................................15
24. DAMAGE AND DESTRUCTION ...............................................................15
24.1 Master Landlord's Duty to Repair ............................................15
-ii-
TABLE OF CONTENTS
(CONTINUED)
Page
24.2 Termination by Master Landlord ..............................................15
24.3 Termination by Tenant .......................................................15
24.4 Abatement of Rent ...........................................................15
25. CONDEMNATION .........................................................................15
25.1 Termination by Master Landlord ..............................................15
25.2 Termination by Tenant .......................................................15
25.3 Restoration .................................................................15
25.4 Abatement of Rent ...........................................................15
26. SIGNS ................................................................................16
26.1 Generally ...................................................................16
26.2 Existing Monument Sign ......................................................16
27. ASSIGNMENT, SUBLETTING, AND ENCUMBRANCES .............................................16
27.1 Landlord's Consent Required .................................................16
27.2 Tenant's Application to Assign or Sublease ..................................16
27.3 Landlord's Option to Terminate ..............................................17
27.4 Assignment or Sublease Profit ...............................................17
27.5 Fees for Review .............................................................17
27.6 No Release of Tenant or Guarantor ...........................................18
27.7 Assumption of Obligations ...................................................18
27.8 Assignment ..................................................................18
27.9 Vesting .....................................................................18
28. HOLDING OVER .........................................................................18
29. QUIET ENJOYMENT ......................................................................19
30. SUBORDINATION & ATTORNMENT; ESTOPPEL CERTIFICATES.....................................19
31. DEFAULT BY TENANT ....................................................................20
32. REMEDIES .............................................................................21
32.1 Rights and Remedies .........................................................21
32.2 Cumulative Nature of Rights .................................................22
32.3 Abandonment of Personal Property ............................................22
-iii-
TABLE OF CONTENTS
(CONTINUED)
Page
32.4 Bankruptcy Provisions ...........................................................23
33. WAIVER OF NOTICE .....................................................................24
34. LATE CHARGES .........................................................................24
35. QUARTERLY ADVANCE PAYMENTS ...........................................................24
36. INTEREST .............................................................................24
37. LANDLORD'S DEFAULT; NOTICE TO LENDER .................................................25
37.1 Landlord's Default ..........................................................25
37.2 Notice to Lender ............................................................25
38. BROKER'S COMMISSION ..................................................................25
39. ADDITIONAL SECURITY ..................................................................26
40. WAIVER OF DEFAULT ....................................................................26
41. EFFECT OF LANDLORD'S ASSIGNMENT ......................................................26
42. NOTICES AND PLACE FOR PAYMENT OF RENT ................................................26
43. MISCELLANEOUS ........................................................................27
43.1 Consent .....................................................................27
43.2 Interpretation ..............................................................27
43.3 Entire Agreement ............................................................27
43.4 Corporate Resolutions .......................................................27
43.5 Severability ................................................................28
43.6 Choice of Law ...............................................................28
43.7 Recording ...................................................................28
43.8 Remedies Cumulative .........................................................28
43.9 Legal Costs .................................................................28
43.10 No Partnership ..............................................................28
43.11 Subtenancies ................................................................28
43.12 Successors ..................................................................28
43.13 Independent Covenants .......................................................28
43.14 Assignment of Rents and Profits .............................................29
43.15 Injunctive Relief ...........................................................29
-iv-
TABLE OF CONTENTS
(CONTINUED)
Page
43.16 Waiver of Jury Trial ........................................................29
43.17 Confidentiality of Disputes .................................................29
-v-
SUBLEASE
THIS SUBLEASE (hereinafter "LEASE") is made and entered into as of the
1st day of February, 2000, by and between XXXXX & XXXXXXXXXX GRAPHICS
CORPORATION, a Utah corporation ("LANDLORD"), and ADESSO HEALTHCARE TECHNOLOGY
SERVICES, INC., a California corporation ("TENANT"), sometimes collectively
referred to herein as the "PARTIES" or individually as a "PARTY".
1. PREMISES.
1.1 DESCRIPTION AND LEASE OF PREMISES. For good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, and subject to the provisions of this Lease, Landlord
hereby subleases to Tenant, and Tenant hereby subleases from Landlord,
those certain premises outlined on EXHIBIT A attached hereto and
incorporated herein by reference ("PREMISES") The Premises contains
approximately 19,999 square feet of floor area. The address of the
Premises is 0000 Xxxxxx Xxxx, Xxx Xxxx, Xxxxxxxxxx 00000 (Project
701C). The Premises are a part of a larger project containing eight (8)
buildings, the aggregate gross leasable area of which is 360,216 square
feet (the "PROJECT"). Notwithstanding the foregoing, Landlord shall
retain for a period of twelve (12) months from the Commencement Date,
unless earlier terminated as provided below (the "TRANSITION PERIOD"),
a portion of the Premises consisting of approximately 5,968.75 square
feet of floor area as outlined on EXHIBIT A (the "TRANSITION SPACE").
Landlord may, in its sole discretion, and upon at least ninety (90)
days prior written notice to Tenant, terminate the Transition Period
and turn over to Tenant the Transition Space. Notwithstanding any other
provisions of this Lease to the contrary, during the Transition Period
the cost of utilities (SECTION 17), common area maintenance charges
(SECTION 20) and insurance (SECTION 23.4) attributed to the Premises
shall be allocated between Landlord and Tenant on a pro rata basis.
Landlord's share of such expenses during the Transition Period
("LANDLORD'S ALLOCATED SHARE") shall be calculated on the basis of a
fraction, the numerator of which is the square footage of the
Transition Space and the denominator of which is the square footage of
floor area of the Premises. Tenant's share of such expenses ("TENANT'S
ALLOCATED SHARE") shall be calculated by subtracting Landlord's
Allocated Share from one hundred percent (100%). During the Transition
Period, Tenant shall not pay rent as required by SECTION 5 of this
Lease with respect to the Transition Space. During the Transition
Period, each Party grants to the other Party a nonexclusive license to
use such common areas of the Premises as may be mutually designated by
the Parties (see SECTION 20.2).
1.2 DELIVERY OF PREMISES. Except as expressly set forth herein
to the contrary, Landlord agrees to deliver the Premises to Tenant in
their current state, "AS IS" and "WHERE IS", in a broom clean
condition, and free and clear of any tenancies or encumbrances placed
on the Premises by Landlord, other than the Master Lease. Landlord
agrees to cause the roof, electrical, plumbing, and heating,
ventilation and air conditioning system ("HVAC") (collectively the
"BUILDING SYSTEMS") serving the Premises to be in good working order as
of the date of delivery of the Premises to Tenant. For a period
expiring forty five (45) days from the Commencement Date, Tenant may
notify Landlord in writing of any material problems with respect to the
Building Systems.
Upon receiving such written notice, Landlord agrees to repair the
Building Systems within 30 days (unless a longer period of time is
reasonably required) from the date notice is received from Tenant.
Landlord further agrees at Landlord's expense to, (i) paint (touch-up),
where necessary, the interior walls of the Premises prior to the
Commencement Date, and (ii) at the written request of Tenant, clean the
carpet by extraction (at a cost to Landlord not to exceed One Thousand
Five Hundred and no/100 Dollars ($1,500.00)).
1.3 EARLY OCCUPANCY. If Tenant enters or permits its
contractors to enter the Premises prior to the Commencement Date (as
defined in SECTION 4.1) to prepare the Premises for occupancy, it shall
do so upon all of the terms of this Lease (including its obligations
regarding indemnity and insurance) except those regarding the
obligation to pay rent, which shall commence on the Commencement Date.
2. MASTER LEASE.
2.1 TENANCY SUBJECT TO MASTER LEASE. The Premises and this
Lease are subject to the terms of a lease between Xxxxx & Xxxxxxxxxx
Graphics Corporation, a Utah corporation, as tenant, and Silicon Valley
Properties, LLC, a Delaware Limited liability company, as landlord
("MASTER LANDLORD"), dated March 8, 1999 (such lease, together with all
amendments and supplement agreements thereto are hereinafter
collectively referred to as the "MASTER LEASE"). Tenant acknowledges
and agrees to be bound by every covenant, condition and restriction set
forth in the Master Lease. If the Master Lease is for any reason
terminated before the expiration of this Lease, then this Lease and all
of the rights and obligations of the Parties hereunder shall also
terminate as of the date of termination of the Master Lease, except
with respect to the duties and obligations of Landlord and Tenant,
actual or contingent, which have accrued prior to the date of such
termination. It is expressly understood and agreed that Landlord does
not assume and shall not have any of the obligations or liabilities of
Master Landlord under the Master Lease and that Landlord is not making
the representations or warranties, if any, made by Master Landlord in
the Master Lease. With respect to work, services, repairs and
restoration or the performance of other obligations required of Master
Landlord under the Master Lease, Landlord's sole obligation with
respect to such obligations shall be to request the same from Master
Landlord upon written request from Tenant and to use reasonable efforts
to obtain the same from Master Landlord. Landlord shall not be liable
in damages, nor shall rent xxxxx under this Lease, for or on account of
any failure by Master Landlord to perform the obligations and duties
imposed on it under the Master Lease. Nothing contained in this Lease
shall be construed to create privity of estate or contract between
Tenant and Master Landlord.
2.2 ASSUMPTION OF CERTAIN OBLIGATIONS. As between Landlord and
Tenant and notwithstanding any other provision in this Lease, Tenant
hereby assumes and agrees to be bound by and to perform all of the
covenants, obligations, and agreements of the Landlord, as set forth in
the Master Lease (other than the obligations of Landlord expressly set
forth in this Lease, and the obligation to pay rent under the Master
Lease) and by any terms and limitations imposed upon Landlord as the
tenant thereunder. Tenant shall indemnify, defend (with counsel
acceptable to Landlord), and hold Landlord and its Related Parties (as
hereafter defined) harmless for, from and against any
2
and all claims, demands, liabilities, obligations, damages, penalties,
causes of action, costs and expenses, including attorneys' fees and
expenses, imposed upon, incurred by or asserted against Landlord or any
of Landlord's Related Parties which arise out of any violations under
the Master Lease occurring as a result of the acts or omissions of
Tenant or any of Tenant's Related Parties or any violations by Tenant
or any of Tenant's Related Parties of this Lease or which may arise out
of or are in any manner connected with Tenant's or any of Tenant's
Related Parties' use and occupancy of the Premises pursuant to this
Lease, a breach by Tenant of this Lease or a breach by Tenant of the
provisions of the Master Lease. Notwithstanding any contrary term or
provision contained in this Lease or in the Master Lease, it is
expressly agreed that (a) the terms of this Lease do not grant Tenant
any rights of first refusal, any options to purchase, or any extensions
or renewal rights with respect to the Master Lease; and (b) Tenant
shall not use or occupy the Premises in a manner contrary to or
inconsistent with any of the provisions of the Master Lease. Tenant
agrees that Landlord may deliver to Master Landlord any and all
submissions, notices, or other information received by Landlord from
Tenant under this Lease. As used in this Lease, "RELATED PARTIES" means
the officers, directors, shareholders, partners, managers, members,
employees, agents, parent company, subsidiaries, affiliates,
successors, assigns, contractors, and invitees of a particular person
or entity.
2.3 RECEIPT OF MASTER LEASE. Tenant acknowledges that Tenant
has received and read a copy of the Master Lease.
3. SECURITY DEPOSIT. Contemporaneously with the execution of this
Lease, Tenant has deposited with Landlord the sum of One Hundred Sixty Seven
Thousand Nine Hundred Ninety One and 60/100 Dollars ($167,991.60) (the "SECURITY
DEPOSIT"), receipt of which is hereby acknowledged by Landlord, such deposit
being given to secure the faithful performance by Tenant of all the terms,
covenants, and conditions of this Lease by Tenant to be kept and performed
during the Term hereof. Tenant agrees that if Tenant shall fail to pay the rent
herein reserved promptly when due, such deposit may, at the option of Landlord
(but Landlord shall not be required to), be applied to any rent due and unpaid,
and if Tenant violates any of the other terms, covenants or conditions of this
Lease, such deposit may be applied to any damage suffered by Landlord as a
result of Tenant's default, to the extent of the amount of the damages suffered.
Such deposit is not intended as and shall not be considered a first or last
month's rent payment. Notwithstanding the foregoing, if Tenant complies with all
of the terms, covenants and conditions of this Lease, including but not limited
to the prompt payment of all rent and additional rent due under this Lease on or
before the applicable due date, Tenant may request in writing that one-half
(1/2) of the Security Deposit be applied to the last two months rent, and such
request shall be granted by Landlord. Nothing contained in this SECTION 3 shall
in any way diminish or be construed as waiving any of Landlord's other remedies
as provided herein, or by law or in equity. Should the entire security deposit,
or any portion thereof, be appropriated or applied by Landlord for the payment
of overdue rent or other sums due and payable to Landlord by Tenant hereunder,
then Tenant shall, immediately on written demand from Landlord, remit to
Landlord a sufficient amount in cash to restore such security deposit to its
original amount, and Tenant's failure to do so within ten (10) days after
receipt of such demand shall constitute a breach of this Lease. Should Tenant
comply with all of the terms, covenants and conditions of this Lease and
promptly pay all of the rent herein provided for when
3
and as it falls due, and pay all other sums payable by Tenant to Landlord
hereunder, such security deposit shall be returned in full to Tenant, without
interest, at the end of the Term, or upon the earlier termination of this Lease
pursuant to the provisions hereof. Landlord shall have the right to commingle
the security deposit with other funds of Landlord. Landlord may deliver the
funds deposited herein by Tenant to the purchaser of Landlord's interest in the
Premises if such interest be sold, and thereupon Landlord shall be discharged
from any further liability with respect to such security deposit. No trust
relationship is created herein between Landlord and Tenant because of, or
relating to, the security deposit. If the laws of the state in which the
Premises are located do not allow Landlord to use the security deposit for the
purposes set forth herein, then this provision shall be deemed to allow Landlord
to use the security deposit to the maximum extent allowed by such law.
4. TERM.
4.1 COMMENCEMENT DATE. The term of this Lease (the "TERM")
shall commence on March 1, 2000, or such earlier date as the Parties
may mutually agree in writing (the "COMMENCEMENT DATE"). The intent of
the Parties is to permit the Tenant to enter the Premises as early as
possible after obtaining the written consent of Master Landlord. Within
thirty (30) days following the Commencement Date, Landlord and Tenant
will execute a written supplement to this Lease ("LEASE SUPPLEMENT")
confirming the Commencement Date.
4.2 EXPIRATION OF TERM. Subject to the terms and conditions of
the Master Lease, the Term shall expire on April 30, 2004, unless
terminated pursuant to the terms of this Lease. Landlord agrees to
provide notice to Tenant on or prior to April 15, 2002 if Landlord
intends to exercise its right to terminate the Master Lease as
permitted in Addendum No. 1 of the Master Lease.
5. RENT. Tenant shall pay directly to Landlord, in advance, without
right of offset or demand, on or before the first day of each calendar month of
the Term, commencing on the Commencement Date, "RENT" as follows:
5.1 From the Commencement Date through February 28, 2001:
$1.95 per square foot per month. Upon mutual execution of this
Agreement, Tenant shall pay to Landlord the first full month's rent.
The amount of the first full month's rent shall be calculated based on
the square footage of the Premises less the Transition Space (assuming
the square footage of the Premises less the Transition Space is equal
to 14,026.78 square feet, the first month's full rent amount would be
$27,352.23).
5.2 For the period commencing on March 1, 2001 through
February 28, 2002: $2.00 per square foot per month.
5.3 For the period commencing on March 1, 2002 through
February 28, 2003: $2.05 per square foot per month.
5.4 For the period commencing on March 1, 2003 through the
expiration of the Term on April 30, 2004: $2.10 per square foot per
month.
4
If the Term of this Lease commences or ends on a day other
than the first or last day of a calendar month, the rent for such
partial month shall be prorated in the proportion that the number of
days this Lease is in effect during such partial period bears to the
number of days in that calendar month, and such rent shall be paid at
the commencement of such partial month.
6. ADDITIONAL RENT. All amounts which Tenant is required to pay or
discharge pursuant to this Lease in addition to the rent described in SECTION 5,
including, but not limited to all sums owed by Tenant to Landlord or paid to
third parties by Landlord on behalf of Tenant, together with every fine,
penalty, interest and cost which may be added for non-payment or late payment,
shall constitute additional rent. Additional rent shall be paid directly to
Landlord at the address specified herein, or at such other place as Landlord may
designate in writing. If Tenant fails to pay or discharge any additional rent,
Landlord shall have all rights, powers and remedies provided herein or by law as
in the case of non-payment of rent.
7. PAYMENT OF RENT. All rent and additional rent (sometimes
collectively referred to herein as "RENT" or "RENTAL") shall be paid by Tenant
to Landlord prior to notice or demand, at the address stated in the SECTION 42
(notices) or to such other person or place as Landlord may designate in writing.
8. USE CLAUSE. Subject to the Permitted Use as defined in the Master
Lease, the Premises may be used for the purpose of the development, sale,
storage, distribution and marketing of medical insurance software, for general
office purposes and for no other purpose. Tenant shall obtain at its expense all
necessary permits and approvals which may be required by any governmental entity
or Master Landlord for Tenant's intended use of the Premises.
9. DISCLOSURE OF HAZARDOUS MATERIALS.
9.1 LANDLORD'S KNOWLEDGE OF HAZARDOUS MATERIALS. Landlord
hereby discloses to Tenant that to Landlord's actual knowledge without
further investigation or inquiry, the list attached hereto as EXHIBIT B
contains known Hazardous Materials (defined in SECTION 10.2) that are
located in or about the Premises, the parking area that benefits the
Premises, and the Project. Landlord has further set forth on EXHIBIT B
those Hazardous Materials that are used in Landlord's business
operations and that are located in or about the Premises. During the
Transition Period, Landlord shall be permitted to maintain such
Hazardous Materials that are reasonably necessary for Landlord's
business operations ("LANDLORD'S HAZARDOUS MATERIALS"), so long as
Landlord complies with applicable federal, state, and local government
laws and regulations. Upon termination of the Transition Period,
Landlord, at its sole cost and expense, shall remove Landlord's
Hazardous Materials. Except with the respect to Landlord's Hazardous
Materials, the Landlord shall have no obligation to remediate or remove
any Hazardous Materials located in the Project. As used in this Lease,
the term "LANDLORD'S ACTUAL KNOWLEDGE" shall mean to the actual
knowledge of Xxxxx Xxxxx.
9.2 ENVIRONMENTAL INDEMNITY. Landlord hereby releases,
indemnifies, holds harmless and agrees to defend Tenant from and
against any and all claims, causes of action, damages (including,
without limitation, all foreseeable and unforeseeable consequential
damages, injunction and other relief), fines, judgments, penalties,
costs,
5
liabilities, losses or expenses (including, without limitation,
attorneys' fees and reasonable investigative and discovery costs)
arising prior to, during or after the Term on account of or in
connection with, or directly or indirectly arising from: (a) the
violation of any Environmental Laws by Landlord or anyone acting by,
though, or under Landlord, including but not limited to Landlord's
concessionaires, licensees, agents, employees or invitees (collectively
"LANDLORD'S AGENTS"); (b) the presence, use, generation, storage,
remediation, disposal or Release of Landlord's Hazardous Materials in,
on, under, or above the Project attributable to the acts or omissions
of Landlord or Landlord's Agents; (c) any breach of the representations
and warranties of Landlord contained in this SECTION 9; (d) any
violation of the obligations of Landlord contained in this SECTION 9;
and (e) any violation by Landlord or Landlord's Agents of the
obligations set forth in Sections 7.1 (Waste Disposal) and 7.2
(Hazardous Materials) of the Master Lease. Without limitation of the
foregoing, this indemnification shall include any and all costs
incurred due to any investigations of the Project or any cleanup,
removal, repair, remediation, detoxification or restoration and the
preparation of any closure or other plans required or permitted by any
governmental authority, to the extent caused by any act by Landlord or
Landlord's Agents. Notwithstanding any other provision in this Lease to
the contrary, Landlord's indemnities described in this SECTION 9.2
shall not apply to any claims, causes of action, damages, fines,
judgments, penalties, costs, liabilities, losses or expenses arising
from or connected with any act or failure to act of Master Landlord,
Tenant, or any other unrelated third party.
9.3 SURVIVAL. Landlord's representations, warranties,
indemnifications and obligations under this SECTION 9 shall survive the
expiration or termination of this Lease.
10. PROHIBITED USES; HAZARDOUS MATERIALS.
10.1 PROHIBITED USES. The Premises shall not be used for any
use which conflicts with the Master Lease, any existing declaration of
restrictions or covenants recorded against or binding upon the
Premises, the Project, or any existing mortgage or deed of trust.
Tenant shall not do or permit anything to be done in or about the
Premises which will obstruct or interfere with the rights of other
tenants or occupants of the Project, or injure or annoy them or use or
allow the Premises to be used for any improper, immoral, unlawful or
objectionable purpose, nor shall Tenant cause, maintain or permit any
nuisance in, on or about the Premises. Tenant shall not install,
maintain or use an underground storage tank. Tenant shall not do or
permit anything to be done which will invalidate or increase the cost
of any fire, extended coverage or any other insurance policy covering
the Premises, the Project and/or property located therein. Tenant shall
promptly reimburse Landlord, as additional rent, the full amount of any
additional premium charged Landlord or Master Landlord for any
insurance policy by reason of Tenant's failure to comply with this
Section and/or SECTION 11 (Compliance with Law); provided, such
reimbursement shall not be Landlord's exclusive remedy, nor shall it
limit or compromise any other rights granted Landlord by this Lease or
by law or equity.
10.2 HAZARDOUS WASTES. Additionally, Tenant covenants that
Tenant or anyone acting by, through, or under Tenant, including but not
limited to Tenant's assignees, subtenants, concessionaires, licensees,
agents, employees or invitees (collectively "TENANT'S AGENTS") will
not, through its acts or omissions, cause or permit
6
any Hazardous Materials (defined below) to be placed, held, located,
Released (defined below) or disposed of on, under or at the Premises.
The term "HAZARDOUS MATERIALS" shall mean any substance or material
which is defined as or included in the definition of "hazardous
substances", "hazardous wastes", "hazardous materials", "extremely
hazardous waste", "acutely hazardous wastes", "restricted hazardous
waste", "toxic substances", or "known to cause cancer or reproductive
toxicity" (as such phrase is defined by Proposition Sixty-Five in the
State of California, or words of similar import), petroleum products
(including crude oil or any fraction thereof) or any other chemical,
substance or material which is prohibited, limited or regulated under
any federal, state or local law, ordinance, regulation, order, permit,
license, decree, common law or treaty now or hereafter in force
regulating, relating to or imposing liability or standards concerning
materials or substances known or suspected to be toxic or hazardous to
health and safety, the environment or natural resources ("ENVIRONMENTAL
LAWS"). "RELEASE" or "RELEASED" means any actual or threatened
spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, presence, dumping, migrating on or from
the Project or adjacent property, or disposing of Hazardous Materials
into the environment.
10.3 REMEDIATION. Notwithstanding anything else to the
contrary herein, in the event any Hazardous Materials are discovered
on, under or at the Premises (whether or not caused by an act or
omission of Tenant or Tenant's Agents), Tenant shall immediately notify
Landlord of any such discovery. If the Hazardous Materials have been
placed, held, located, Released or disposed of by the acts or omissions
of Tenant or Tenant's Agents (whether such Hazardous Materials are
discovered by Landlord during the Term of this Lease or following the
termination of the Lease), Tenant shall, at its sole cost and expense,
comply with all Environmental Laws to remedy the situation, including,
without limitation, promptly conducting a site assessment, taking
immediate action required for containment of the Hazardous Materials,
and preparing and implementing a plan for the clean-up of the Hazardous
Materials. Landlord may at any time during the Term and within sixty
(60) days thereafter, inspect the Premises for the existence of
Hazardous Materials on the Premises placed, held, located, Released or
disposed of by the acts or omissions of Tenant or Tenant's Agents. In
the event Landlord discovers Hazardous Materials on the Premises
placed, held, located, Released or disposed of by the acts or omissions
of Tenant or Tenant's Agents, Tenant shall, at its sole cost and
expense and upon demand of Landlord, reimburse Landlord for its costs
to inspect the Premises and comply with Environmental Laws for the
removal or remediation of the Hazardous Materials.
10.4 ENVIRONMENTAL INDEMNITY. Tenant hereby releases,
indemnifies, holds harmless and agrees to defend Landlord and its
Related Parties from and against any and all claims, causes of action,
damages (including, without limitation, all foreseeable and
unforeseeable consequential damages, injunction and other relief),
fines, judgments, penalties, costs, liabilities, losses or expenses
(including, without limitation, attorneys' fees and reasonable
investigative and discovery costs) arising prior to, during or after
the Term on account of or in connection with, or directly or indirectly
arising from: (a) the violation of any Environmental Laws by Tenant or
Tenant's Agents; (b) the presence, use, generation, storage,
remediation, disposal or Release of Hazardous Materials in, on,
7
under, or above the Project attributable to the acts or omissions of
Tenant or Tenant's Agents; (c) any breach of the representations and
warranties of Tenant contained in this SECTION 10; (d) any violation of
the obligations of Tenant contained in this SECTION 10; (e) any
violation by Tenant or Tenant's Agents of the obligations set forth in
Sections 7.1 (Waste Disposal) and 7.2 (Hazardous Materials) of the
Master Lease; and (f) any violation of the obligations of Tenant
contained in this Lease regarding asbestos containing material ("ACM").
Without limitation of the foregoing, this indemnification shall include
any and all costs incurred due to any investigations of the Project or
any cleanup, removal, repair, remediation, detoxification or
restoration and the preparation of any closure or other plans required
or permitted by any governmental authority, if caused by any act by
Tenant or Tenant's Agents.
10.5 SURVIVAL. Tenant's representations, warranties,
indemnifications and obligations under this SECTION 10 shall survive
the expiration or termination of this Lease.
11. COMPLIANCE WITH LAW.
11.1 PREMISES AND BUILDING. Landlord represents and warrants
that to Landlord's actual knowledge without further investigation or
inquiry, neither the Premises nor the building in which the Premises
are located are in any material violation of any ordinance, rule, code,
or regulation of any governmental agency. If applicable, Landlord will
pursue its available remedies under the Master Lease in the event of
any such material violation.
11.2 TENANT'S COMPLIANCE. Tenant shall obtain at its expense
all necessary permits and approvals which may be required by any
governmental entity for Tenant's use and occupancy of the Premises.
Tenant shall not use the Premises or permit anything to be done in or
about the Premises which will in any way conflict with any Legal
Requirements. "LEGAL REQUIREMENTS" means all laws, statutes, codes,
acts, ordinances, orders, judgments, decrees, injunctions, rules,
regulations, permits, licenses, authorizations, directions and
requirements of and agreements with all governments, departments,
commissions, boards, courts, authorities, agencies, officials and
officers, foreseen or unforeseen, ordinary or extraordinary, including,
without limitation, any Environmental Laws, which now or at any time
hereafter may be applicable to the Premises or any part thereof. Tenant
shall, at its sole cost and expense, promptly comply with all Legal
Requirements and requirements of any board of fire underwriters or
other similar body now or hereafter constituted in relation to or
affecting the condition, use or occupancy of the Premises, excluding
structural changes not related to or affected by Tenant's improvements
or acts.
11.3 CONDITION OF THE PREMISES. Tenant represents to Landlord
that Tenant has inspected the Premises, (including an inspection to
determine the existence of Hazardous Materials) and Landlord's title
thereto prior to the execution and delivery of this Lease and has found
the same to be satisfactory for all purposes hereunder and except as
set forth in SECTION 1.2, TENANT ACCEPTS THEM IN THEIR "AS IS", "WHERE
IS" CONDITION, SUBJECT TO ALL LEGAL REQUIREMENTS, ANY STATE OF FACTS
WHICH AN ACCURATE SURVEY OR PHYSICAL INSPECTION OF THE PREMISES MIGHT
SHOW, WITHOUT WARRANTIES,
8
EITHER EXPRESS OR IMPLIED, "WITH ALL FAULTS", INCLUDING BUT NOT LIMITED
TO BOTH LATENT AND PATENT DEFECTS, AND THE EXISTENCE OF HAZARDOUS
MATERIALS, IF ANY. TENANT HEREBY WAIVES ALL WARRANTIES, EXPRESS OR
IMPLIED, REGARDING THE TITLE, CONDITION AND USE OF THE PREMISES,
INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
Landlord's Initials: /s/ Xxxxx Xxxxx
-------------------------
Tenant's Initials: /s/ Xxxxx Xxxxxxx
---------------------------
12. ALTERATIONS. Tenant shall not make or allow to be made any
alterations, additions or improvements (sometimes referred to herein as
"ALTERATIONS") to or of the Premises, or any part thereof, without first (a)
complying with the provisions of SECTION 11 of this Lease with respect to such
Alterations, (b) complying with the provisions of Section 5.2 (Tenant's
Alterations) of the Master Lease, and (c) obtaining the written consent of
Master Landlord and Landlord, which consent may be conditioned upon the
requirement that upon demand by Master Landlord or Landlord on any expiration or
earlier termination of this Lease, Tenant shall remove immediately, at Tenant's
sole cost and expense, any Alterations and repair and restore the portion of the
Premises so altered to its original condition, reasonable wear and tear
excepted. Tenant shall not make any Alterations which reduce the value of the
Premises, which shall be determined in Landlord's sole discretion. For the
purposes of making or having made Alterations to the Premises, Tenant shall only
use a contractor that (x) has met the requirements set forth in SECTION 15 of
this Lease, and (y) has been approved in writing by Landlord. Unless Landlord
requires otherwise, all Alterations shall become the property of Landlord and
shall be surrendered with the Premises as a part thereof, at the expiration or
earlier termination of the Term. Plans setting forth in reasonable detail
Tenant's proposed Alterations must first be approved in writing by Landlord,
which approval shall not unreasonably be withheld. Notwithstanding anything in
this Lease to the contrary, as a condition to granting consent to any
alterations, improvements or additions to the Premises proposed by Tenant or
required by law or regulation, Landlord may require that Landlord or Landlord's
designee make such alterations, improvements or additions and/or remove any
friable ACM or ACM that may become friable as a result of such alterations,
improvements or additions, at Tenant's cost and expense. Tenant shall reimburse
Landlord upon demand for any costs and expenses incurred by Landlord in
connection with such alterations, improvements or additions, and/or the removal
of ACM. Tenant shall cooperate fully in accomplishing any ACM survey and removal
procedures required by this Lease or Environmental Laws. Tenant shall, if and as
necessary, and without abatement of rent, close for occupancy and use all or
part of the Premises, as reasonably required, pending the completion of ACM
removal.
13. MAINTENANCE AND REPAIR.
13.1 TENANT'S OBLIGATIONS. Tenant shall, at Tenant's sole cost
and expense, assume Landlord's maintenance obligations under the Master
Lease. Without limiting the generality of the foregoing, Tenant will
keep all the Premises and every part thereof in good condition and
repair, including without limitation, the maintenance and repair of any
entrances, vestibules, window casements and glass, showcases,
skylights, glazing, HVAC system (both within or dedicated for the
exclusive use of the Premises), plumbing pipes, electrical, wiring and
conduits; damage thereto by fire, earthquake or other insured
9
casualty, act of God, or the elements excepted. If Landlord requests,
Tenant shall continuously maintain a service contract on the HVAC
system and provide Landlord with a copy of the same. Such contract
shall be with a reputable licensed heating and air conditioning
company. If Tenant does not maintain the Premises as required under
this SECTION 13.1 promptly and adequately, Landlord may, but need not,
do so and Tenant shall immediately upon demand pay Landlord's cost
therefor. Tenant hereby waives all right to make repairs at the expense
of Landlord as provided under any law, statute, ordinance now or
hereafter in effect. Tenant shall, upon the expiration or sooner
termination of this Lease, surrender the Premises to Landlord in the
same condition as when received, broom clean, ordinary wear and tear
and damage by casualty excepted.
13.2 LANDLORD'S OBLIGATIONS. Notwithstanding the foregoing,
Landlord shall cooperate with Tenant in reasonably enforcing the Master
Landlord's maintenance obligations as set forth in Sections 6.2 and 6.3
of the Master Lease with respect to the Premises, the buildings, and
the common area of the Project. Upon expiration of the Transition
Period, Tenant may directly contact the Master Landlord in writing with
respect to maintenance and repairs required to be performed by the
Master Landlord under the Master Lease. Tenant agrees to provide
Landlord a copy of all notices and written correspondence with the
Master Landlord. Except as expressly provided to the contrary herein,
in no event shall Landlord be required to make any repairs to the roof,
exterior and structural parts of the building, HVAC or other building
service equipment and/or utility facilities serving any portion of the
common areas of the Project, or any other obligations of the Master
Landlord under the Master Lease.
13.3 TENANT'S ACM OBLIGATIONS. Notwithstanding anything to the
contrary contained in this Lease, Tenant, at its sole cost and expense,
shall survey the ACM, if any, within the Premises from time to time,
though no less often than annually. Such survey shall be conducted by
an asbestos consultant selected by Landlord and certified by the
Environmental Protection Agency ("EPA CONTRACTOR") pursuant to the
procedures set forth in the Asbestos Hazard Emergency Response Act, and
regulations promulgated thereunder and the National Emissions Standards
for Hazardous Air Pollutants. Evidence of such survey, reasonably
satisfactory to Landlord, shall be submitted to Landlord upon
completion. If the survey shows the presence of any ACM which is
friable or which may become friable during the ordinary course of
Tenant's business, Tenant shall cause such ACM to be removed at
Tenant's expense by an EPA Contractor.
14. ADA COMPLIANCE. Landlord represents that to Landlord's actual
knowledge without further investigation or inquiry, the Premises comply with the
provisions of the Americans with Disabilities Act ("ADA") in effect as of the
date this Lease is executed by Landlord. The cost of compliance with the ADA
shall be the obligation of Master Landlord and Tenant.
15. LIENS. Tenant shall keep the Premises free from any liens arising
out of any work performed, materials furnished, or obligations incurred by or
for Tenant. Tenant shall require any contractor or other person performing work
on the Premises, including, without limitation, in connection with any
Alterations, to be licensed by the state in which the Premises are located and
to obtain a performance, completion and payment bond naming Landlord as an
additional obligee and releasing the Premises from any lien claimed, which bond
shall be in an
10
amount equal to one and one-fourth (1-1/4) times the estimated cost of such
work. If Tenant shall be in default in paying any charge for which a bond or
other lien claim has been filed and shall not have given Landlord security to
protect the Premises, the Project and Landlord, then Landlord may, but shall not
be obligated to, pay the claim. Any costs and attorneys' fees incurred by
Landlord in connection therewith, shall be immediately due and owing from Tenant
to Landlord. Tenant may contest the validity and/or amount of any lien imposed
on the Premises, provided Tenant has caused such lien to be released of record
by payment or posting of a proper bond.
16. OPERATION. Tenant will install fixtures, initially open and operate
the Premises in a manner consistent with the other tenants in the Project.
Nothing in this Lease shall be interpreted as a requirement to continuously
operate in the Premises. Tenant agrees to give Landlord at least thirty (30)
days notice of the date that Tenant anticipates ceasing operations on the
Premises.
17. UTILITIES.
17.1 TRANSITION PERIOD. During the Transition Period, all
utilities shared by Landlord and Tenant shall remain in the name of the
Landlord, with the cost of such utilities ratably allocated between
Landlord and Tenant based upon Landlord's Allocated Share and Tenant's
Allocated Share. Landlord shall provide Tenant with a monthly statement
for such utilities. Tenant agrees to pay as additional rent Tenant's
Allocated Share of such utilities within ten (10) days after being
invoiced by Landlord.
17.2 REMAINING TERM. Immediately after expiration of the
Transition Period, Tenant shall pay directly to the Master Landlord,
before delinquency, all utility deposits and fees including any present
or future installation, hook-up and/or service charges, together with
any taxes thereon, for water, electricity, sewage, gas, telephone and
any other utility services supplied to the Premises. Tenant shall not
install any equipment which will exceed or overload the capacity of
existing utility facilities. If any equipment installed by Tenant shall
require additional utility facilities, Tenant shall first obtain
Landlord's written consent to such installation and such installation
shall be at Tenant's expense. If any utility charges are not paid when
due, Landlord may pay the same and any amount so paid by Landlord shall
be immediately due and owing from Tenant to Landlord as additional
rent.
18. RULES AND REGULATIONS. Tenant shall comply with all rules and
regulations from time to time promulgated by Master Landlord or Landlord.
Neither Master Landlord nor Landlord shall be responsible to Tenant for the
non-performance by any other tenant or occupant of the Project of any of such
rules and regulations.
19. ENTRY BY LANDLORD. Landlord reserves for itself and the Master
Landlord and shall at any reasonable time have the right to enter the Premises
in a commercially reasonable manner to inspect the same, to remediate Hazardous
Materials, to perform ACM surveys, to submit the Premises to prospective
purchasers or tenants, to post notices of non-responsibility, and to repair the
Premises.
11
20. COMMON AREA; ASSESSMENTS.
20.1 COMMON AREA OF PROJECT. Tenant shall have the right to
use and enjoy the common areas that are designated as such in the
Master Lease, on the terms and conditions set forth in the Master
Lease. As additional rent, Tenant shall pay Tenant's Share (as such
term is defined in the Master Lease) with respect to the common areas
of the Project and the building in which the Premises are located.
During the Transition Period, the Common Operating Expenses (as such
term is defined in the Master Lease) shall be allocated between
Landlord and Tenant in accordance with SECTION 1.2. During the
Transition Period, Tenant agrees to pay as additional rent Tenant's
Allocated Share of the Common Operating Expenses within ten (10) days
after being invoiced by Landlord. After expiration of the Transition
Period, Tenant shall pay directly to Master Landlord Tenant's Share of
Common Operating Expenses on or prior to the date payment is required
therefor by Master Landlord.
20.2 COMMON AREA OF PREMISES DURING TRANSITION PERIOD. During
the Transition Period, the Parties shall cooperate in good faith in
maintaining and operating the common areas of the Premises as outlined
in EXHIBIT A (the "TRANSITION PERIOD COMMON AREA") in a first class and
business like manner (including but not limited to maintaining a
minimum noise level). The Parties further agree that with respect to
the IT lab shared by the Parties during the Transition Period, neither
Party (including officer, directors, employees, agents and invitees)
shall use, disturb or interfere with the other Parties phone switches,
servers, or other equipment or property located in or about the IT lab.
Moreover, the Parties and their respective employees, agents and
invitees shall not enter into any office area or other prohibited area
of the other Party as outlined on EXHIBIT A (and as may be designated
from time to time in writing by the Parties) without the prior consent
of the other Party. The Parties shall cause their officers, directors,
employees, agents and invitees to comply with that certain
Non-Disclosure Agreement between Landlord and Tenant dated the 1st day
of February, 2000 (the "NON-DISCLOSURE AGREEMENT").
21. PARKING. Subject to the Master Lease, Tenant shall be entitled to
3.8 parking stalls per 1,000 square feet of the Premises leased to Tenant
hereunder. Tenant shall also have the non-exclusive right to use Landlord's
designated visitor parking area.
22. TAXES. All taxes allocated to Landlord under the Master Lease shall
be paid, when due, by Tenant. Tenant agrees to pay all taxes connected with
Tenant's equipment and trade fixtures located upon the Premises. Notwithstanding
the foregoing, real property taxes associated with the Premises shall be
allocated ratably between Landlord and Tenant during the Transition Period based
upon their respective Allocated Shares.
23. INSURANCE; INDEMNIFICATION.
23.1 INDEMNIFICATION. Tenant hereby indemnifies, holds
harmless and agrees to defend Landlord and Master Landlord and their
Related Parties from and against all claims, damages, expenses
(including, without limitation, attorneys' fees and reasonable
investigative and discovery costs), liabilities and judgments on
account of injury to persons, loss of life, or damage to property
occurring on the Premises, the Project, the
12
common areas, and the ways immediately adjoining the Premises and the
Project, caused by the active or passive negligence or willful
misconduct of Tenant, its agents, servants, or employees; provided,
Tenant does not indemnify Landlord against any injury, loss of life, or
damage which is caused by the active or passive negligence or willful
misconduct of Landlord, its agents, servants or employees. Landlord
hereby indemnifies, holds harmless and agrees to defend Tenant and its
Related Parties from and against all claims, damages, expenses
(including, without limitation, attorneys' fees and reasonable
investigative and discovery costs), liabilities and judgments, on
account of injury to persons, loss of life, or damage to property
occurring in the Premises, the Project, the common areas, and the ways
immediately adjoining the Premises and the Project caused by the active
or passive negligence or willful misconduct of Landlord, its agents,
servants or employees; provided, Landlord does not indemnify Tenant
against any injury, loss of life or damage which is caused by the
active or passive negligence or willful misconduct of Tenant, or
Tenant's agents, servants or employees. The Parties' obligations with
respect to indemnification hereunder shall remain effective
notwithstanding the expiration or termination of this Lease, as to
claims or liability arising or accruing prior to the expiration or
termination of this Lease.
23.2 WAIVER OF CERTAIN RIGHTS. With respect to any loss or
damage that may occur to the Premises (or any improvements thereon) or
the respective property of the Parties therein, arising from any peril
customarily insured under a special form (all risk) insurance policy,
regardless of the cause or origin, excluding willful acts but including
negligence of the Parties, their agents, servants or employees, the
Party required to carry such insurance and suffering such loss hereby
releases the other Party from all claims with respect to such loss
except as specifically provided in SECTIONS 12 (alterations), 13
(maintenance and repair), and 24 (damage and destruction); and Landlord
and Tenant mutually agree that their respective insurance companies
shall have no right of subrogation against the other Party or the
Master Landlord on account of any such loss, and each Party shall
procure from its respective insurers under all policies of insurance a
waiver of all rights of subrogation against the other Party and the
Master Landlord which the insurance might otherwise have under such
policies.
23.3 LIABILITY INSURANCE COVERAGE AND LIMITS. During the
Transition Period, Tenant and Landlord each agrees to maintain and/or
cause to be maintained, at no cost to the other Party, liability
insurance insuring its interests against claims for personal injury,
bodily injury, death and property damage occurring on, in or about the
Premises and the ways immediately adjoining the Premises, with a
"Combined Single Limit" (covering personal injury, bodily injury
liability and property damage liability) of not less than Five Million
Dollars ($5,000,000) for total claims for any one occurrence. Any
insurance required to be provided under this Section may be in the form
of blanket liability coverage so long as the blanket policy does not
reduce the limits nor diminish the coverage required herein. After
expiration of the Transition Period, Landlord shall not be required to
maintain liability insurance as described in this SECTION 23.3.
23.4 OTHER INSURANCE. During the Transition Period, Landlord
shall maintain such other policies of insurance as may be required
under the Master Lease. Unless otherwise agreed to by the Parties, the
cost of such other policies of insurance shall be ratably allocated
between Landlord and Tenant based upon Landlord's Allocated Share
13
and Tenant's Allocated Share. Landlord shall provide Tenant with a
monthly statement of the cost of such other policies of insurance.
Tenant agrees to pay as additional rent Tenant's Allocated Share of
such cost of insurance within ten (10) days after being invoiced by
Landlord. After expiration of the Transition Period, Tenant shall be
solely responsible to maintain all policies of insurance as required
(or may be required) under Section 9.1 of the Master Lease.
23.5 POLICY REQUIREMENTS. All policies of insurance shall (a)
comply with the requirements of Sections 9.1 and 9.3 of the Master
Lease, (b) insure the performance by Landlord or Tenant, as the case
may be, of the indemnity agreements contained herein and in the Master
Lease, and (c) contain a provision that the insurance company will
furnish Master Landlord, Landlord and Tenant thirty (30) days advance
written notice of any cancellation or lapse, or the effective date of
any reduction in the amounts or scope of coverage. Each Party shall
promptly notify the other Party and the Master Landlord of any asserted
claim with respect to which such Party is or may be indemnified against
hereunder and shall deliver to such Party and Master Landlord copies of
process and pleadings.
23.6 CONTRACTOR'S INSURANCE. During the period of any
construction on the Premises by or at the request of any Party, such
Party agrees to obtain or require its contractor to obtain and
thereafter maintain so long as such construction activity is occurring,
at least the following minimum insurance coverage:
(a) Workers' compensation - statutory limits;
(b) Employer's liability - One Hundred Thousand
Dollars ($100,000);
(c) Comprehensive general liability and commercial
automobile liability with both Parties named as an additional
insureds, as their interests may appear, in accordance with
the following:
(i) "Combined Single Limit" (covering
personal injury liability, bodily injury liability,
and property damage liability) of not less than Five
Million Dollars ($5,000,000) for total claims for any
one occurrence;
(ii) Independent Contractor's Liability or
Owner's Protective Liability with the same coverage
as set forth in (i) above;
(iii) Products/Completed Operations Coverage
which shall be kept in effect for two (2) years after
completion of work;
(iv) "XCU" Hazard Coverage, if applicable;
(v) "Broad Form" Property Damage
Endorsements;
(vi) "Personal Injury" Endorsements; and
(vii) "Blanket Contractual Liability"
Endorsement.
14
23.7 WORKERS' COMPENSATION INSURANCE. Tenant agrees to
maintain and keep in force, during the Term all Workers' Compensation
and Employers' Liability Insurance required under applicable Workers'
Compensation Acts.
24. DAMAGE AND DESTRUCTION.
24.1 MASTER LANDLORD'S DUTY TO REPAIR. If the Premises or
access to it is wholly or partially destroyed by fire or other casualty
("CASUALTY EVENT"), the Master Landlord shall be obligated to restore
the Premises, unless the Master Lease is terminated by Landlord or
Master Landlord under the Master Lease. Tenant hereby acknowledges that
Landlord shall not in any event be required to repair or restore the
Premises.
24.2 TERMINATION BY MASTER LANDLORD. Tenant hereby
acknowledges that the Master Lease may be terminated by Master Landlord
after a Casualty Event in accordance with Section 11.2 of the Master
Lease. If Master Landlord elects to so terminate the Master Lease, this
Lease shall automatically terminate.
24.3 TERMINATION BY TENANT. Landlord hereby agrees that
Landlord will not terminate the Master Lease in accordance with Section
11.3 of the Master Lease after a Casualty Event without the prior
written consent of Tenant.
24.4 ABATEMENT OF RENT. If Landlord's rent under the Master
Lease abates after a Casualty Event in accordance with Section 11.4 of
the Master Lease, rent hereunder shall xxxxx in the same manner and to
the same extent as provided in Section 11.4 of the Master Lease.
25. CONDEMNATION.
25.1 TERMINATION BY MASTER LANDLORD. Tenant hereby
acknowledges that if all or any material part of the Premises shall be
condemned or taken by any public authority or by any other person or
corporation under any statute, by eminent domain or by any transfer in
lieu thereof ("TAKING"), the Master Lease is subject to termination by
Master Landlord in accordance with Section 12.1 of the Master Lease. If
Master Landlord so elects to terminate the Master Lease as a result of
a Taking, this Lease shall automatically terminate.
25.2 TERMINATION BY TENANT. In the event of a Taking, Landlord
hereby agrees that Landlord will not terminate the Master Lease
pursuant to Sections 12.2 and 12.4 of the Master Lease without the
prior written consent of Tenant.
25.3 RESTORATION. If the Master Lease is not terminated after
a Taking, Master Landlord shall be solely obligated to restore the
remaining portion of the Premises.
25.4 ABATEMENT OF RENT. If Landlord's rent under the Master
Lease abates as a result of a Taking in accordance with Section 12.3 or
Section 12.4 of the Master Lease, rent hereunder shall xxxxx in the
same manner and to the same extent as provided in Section 12.3 and
Section 12.4 of the Master Lease.
15
26. SIGNS.
26.1 GENERALLY. Tenant may place signs on the Premises upon
the terms and conditions specified in the Sign Criteria, Declaration of
Covenants, Conditions, and Restrictions of Montague Park (the "SIGN
DECLARATION") attached to the Master Lease as Exhibit D, as the same
may be amended from time to time, so long as Tenant first obtains the
approval of Master Landlord (if required by the Master Lease ) and the
Approving Agent (as defined in the Sign Declaration) for the location
and design of any lobby door signs, exterior signs and window display
signs on the Premises, PROVIDED, HOWEVER, that during the Transition
Period, and with such approval as may be required as described above,
Landlord and Tenant may, at their sole expense respectively, place
their logos on the lobby doors and/or on the lobby walls. Landlord and
Tenant agree to cooperate in good faith in the placement of any
approved lobby signage or lobby door decals. Any permitted sign shall
be of a neat character and design, and shall advertise or refer only to
the kind and character of business which Tenant is permitted to conduct
on the Premises. No signs shall be displayed by Tenant and no
showcases, merchandise, obstructions, or any advertising device of any
kind whatsoever shall be placed by Tenant in or on the sidewalks, or
other Common Area of the Project, and Tenant shall not install any
awnings on the Premises without Landlord's prior written consent.
26.2 EXISTING MONUMENT SIGN. During the Term, Tenant shall
have the right, at its sole cost and expense and subject to any
required approvals under the Master Lease, to display its logo or
design in the position to which Landlord is entitled on the existing
Project monument sign, PROVIDED, HOWEVER, that during the Transition
Period, subject to any approvals required under the Master Lease, both
Landlord and Tenant may display their respective logo or design in
Landlord's position on the existing Project monument with each Party
responsible for the expense of its respective logo or design. The
Parties agree to cooperate in good faith in the design and display of
such logos and designs during the Transition Period.
27. ASSIGNMENT, SUBLETTING, AND ENCUMBRANCES.
27.1 LANDLORD'S CONSENT REQUIRED. Tenant shall not voluntarily
or involuntarily assign, transfer, mortgage, pledge or encumber this
Lease or any interest therein, and shall not sublet the Premises or any
part thereof without the prior written consent of Master Landlord and
Landlord. Master Landlord's consent shall be obtained in accordance
with the Master Lease. Landlord's consent (i) may be withheld in the
sole discretion of Landlord during the Transition Period, and (ii) may
not be unreasonably withheld by Landlord after expiration of the
Transition Period. Any attempt by Tenant to assign its interest in this
Lease or sublet the Premises without such consent shall be null and
void and shall be deemed a breach of this Lease by Tenant. Any such
assignment or sublease to which Master Landlord and Landlord consent
shall comply with the terms of this Lease and the Master Lease.
27.2 TENANT'S APPLICATION TO ASSIGN OR SUBLEASE. If Tenant
desires at any time to assign this Lease or sublet the Premises or any
portion thereof, Tenant shall submit to Landlord, at least sixty (60)
days prior to the proposed effective date of the assignment or sublease
("PROPOSED EFFECTIVE DATE"), in writing: (a) a notice of intention
16
to assign or sublease setting forth the Proposed Effective Date, which
shall be not less than sixty (60) days after Landlord's receipt of such
notice; (b) the name of the proposed subtenant or assignee and resume
setting forth the business experience of the proposed subtenant or
assignee; (c) the nature of the proposed subtenant's or assignee's
business to be carried on in the Premises; (d) the terms and provisions
of the proposed sublease or assignment; (e) such financial information
as Landlord or Master Landlord may require concerning the proposed
subtenant or assignee, including, without limitation, a financial
statement of the proposed subtenant or assignee compiled by a certified
public accountant; (f) references Landlord may call upon to verify any
representations made with respect to the proposed subtenant or
assignee, as well as its reputation for timely payment of obligations;
and (g) such other information as may be required by the Master
Landlord under the Master Lease. Landlord will notify Tenant of its
approval or disapproval of the proposed sublease or assignment prior to
the Proposed Effective Date.
27.3 LANDLORD'S OPTION TO TERMINATE. If Landlord does not
consent to Tenant's proposed sublease or assignment pursuant to SECTION
27.1 of this Lease, then by written notice to Tenant at any time within
thirty (30) days after Landlord's receipt of the information specified
in SECTION 27.2 of this Lease, Landlord may, but shall not be required
to elect:
(a) to sublease the Premises or such portion thereof
to be subleased by Tenant, or to take an assignment of
Tenant's leasehold estate hereunder or such part thereof as
shall be specified in such notice, upon the same terms as
those offered to the proposed subtenant or assignee, as the
case may be; or
(b) to terminate this Lease as to the portion of the
Premises so proposed to be subleased or assigned, with a
proportionate abatement in the rent payable hereunder.
No termination of this Lease shall become effective
without the prior written consent of the holder of any first
deed of trust to which this Lease is subject.
27.4 ASSIGNMENT OR SUBLEASE PROFIT. Unless otherwise agreed to
by the Parties in writing, for any approved assignment or sublease of
all or a portion of the Premises where the rent reserved in the
assignment or sublease exceeds the rent or pro rata portion of the
rent, as the case may be, for such space reserved in this Lease, Tenant
shall pay Landlord monthly, as additional rent, at the same time as the
payment of rent required hereunder, the excess of the rent reserved in
the assignment or sublease over the rent reserved in this Lease
applicable to the assigned or subleased space. For any approved
assignment or sublease of this Lease or the Premises, Tenant shall pay
Landlord, immediately upon receipt, all consideration received by
tenant as a result of such assignment or sublease.
27.5 FEES FOR REVIEW. If Tenant shall apply for an assignment,
sublease, or encumbrance under this SECTION 27, Tenant shall pay to
Landlord an application fee equal to the greater of (a) the sum of Five
Hundred Dollars ($500.00) as a non-refundable fee for Landlord's time
and processing incurred in connection with reviewing such
17
application and (b) such fee and costs that may assessed against
Landlord by the Master Landlord to review such proposed assignment. In
addition to such fee, Tenant shall pay to Landlord, if Landlord retains
the services of an attorney to review such application, all reasonable
attorneys' fees incurred by Landlord in connection with such review, in
an amount not to exceed One Thousand and no/100 Dollars ($1,000) in
each instance, unless otherwise agreed to by the Parties in writing.
Tenant's obligation to pay Landlord such amounts as described in this
SECTION 27.5 shall be payable regardless of whether consent to the
proposed transfer is granted by Landlord and/or Master Landlord.
27.6 NO RELEASE OF TENANT OR GUARANTOR. No assignment or
subletting by Tenant shall relieve Tenant or any guarantor of any
obligation to be performed by Tenant under this Lease, whether
occurring before or after such assignment or subletting. The acceptance
of rent by Landlord from any other person shall not be deemed to be a
waiver by Landlord of any provision, or other transfer or be a release
of Tenant or any guarantor from any obligation under this Lease or
under any guaranty documents, as the case may be.
27.7 ASSUMPTION OF OBLIGATIONS. Each permitted assignee or
sublessee shall assume all obligations of Tenant under this Lease and
shall be and remain liable jointly and severally with Tenant for the
payment of rent, and for the due performance of all the terms,
covenants, conditions and agreements herein contained on Tenant's part
to be performed for the term of this Lease, including payment of the
full amount of rent set forth in the assignment or sublease. No
assignment or sublease shall be binding on Landlord unless Landlord
shall have given its written consent thereto and such assignee or
sublessee shall deliver to Landlord a fully executed original of such
assignment or sublease and an instrument in recordable form which
contains a covenant of assumption by the assignee or sublessee
satisfactory in substance and form to Landlord consistent with the
above requirements (but the failure or refusal of the assignee to
execute such instrument of assumption shall not release or discharge
the assignee from its liability).
27.8 ASSIGNMENT. For purposes of this SECTION 27, each of the
following shall constitute an "ASSIGNMENT": (a) if Tenant is a
partnership, a withdrawal or change, voluntarily, involuntarily, or by
operation of law, of any partner or the dissolution of the partnership;
(b) if Tenant consists of more than one person, a purported assignment,
voluntarily, involuntarily, or by operation of law, from one person to
another; (c) if Tenant is a corporation (whose stock is not traded
through an exchange or over the counter) any liquidation, dissolution,
merger, consolidation or other reorganization of Tenant, or the sale,
exchange, trade, assignment, hypothecation or other transfer of an
aggregate of twenty five percent (25%) or more of the capital stock of
Tenant, or the sale of an aggregate of twenty five percent (25%) or
more of the value of the assets of Tenant; and (d) such event or events
that are deemed to be an assignment under the Master Lease.
27.9 VESTING. Landlord's rights under this SECTION 27
irrevocably vest upon receipt of Tenant's notice of intent to assign,
encumber or sublease, and no attempted withdrawal of such notice by
Tenant shall affect such rights.
28. HOLDING OVER. This Lease shall terminate without further notice at
the expiration of the Term. Any holding over by Tenant after expiration of the
Term shall not
18
constitute a renewal or extension of the Lease or give Tenant any rights in or
to the Premises except as expressly provided in this Lease. Any holding over
after such expiration with the written consent of Landlord and Master Landlord
shall be construed to be a tenancy from month to month on the same terms and
conditions herein specified insofar as applicable except that rent payable
hereunder shall be increased to an amount equal to 150% of the monthly rent
payable during the last full calendar month of the Term.
If Tenant holds over after the expiration or earlier termination of the
Lease term without the written consent of Landlord and Master Landlord, Tenant
shall become a tenant at sufferance only, at a rental rate equal to 175% of the
monthly rent payable during the last full calendar month of the Term, and
otherwise upon the terms, covenants and conditions of this Lease. Acceptance by
Landlord of rent after such expiration or earlier termination shall not
constitute a consent to a holdover hereunder or result in a renewal. The
provisions of this SECTION 28 are in addition to and do not affect Landlord's or
Master Landlord's right of reentry or any other rights of Landlord hereunder or
of Master Landlord under the Master Lease or as otherwise provided by law.
If Tenant fails to surrender the Premises upon the termination of this
Lease, Tenant shall indemnify and hold Landlord and Master Landlord harmless
from any loss or liability resulting from such failure to surrender, including,
without limitation, any claims made by any succeeding tenant arising out of such
failure.
29. QUIET ENJOYMENT. Subject to the provisions of this Lease and the
Master Lease, and conditioned upon performance of all of the provisions to be
performed by Tenant hereunder, Landlord shall secure to Tenant during the Term
the quiet and peaceful possession of the Premises and all rights and privileges
appurtenant thereto.
30. SUBORDINATION & ATTORNMENT; ESTOPPEL CERTIFICATES. This Lease is
junior, subject, and subordinate to all ground leases, the Master Lease,
mortgages, deeds of trust, and other security instruments of any kind now or in
the future encumbering the Premises, the Project, or any portion thereof. Tenant
covenants and agrees to execute and deliver upon demand such further instruments
evidencing such subordination of this Lease as may be requested by Landlord. In
the event of the foreclosure of any such lien or encumbrance, or the transfer of
title to or Landlord's leasehold interest in the Premises or the Project, Tenant
shall attorn to the transferee, and will recognize such transferee as Landlord
under this Lease provided Tenant's right to quiet possession of the Premises is
not affected as a result of such foreclosure or transfer and that Tenant
receives a notice from Landlord informing Tenant of such change. Tenant shall at
any time and from time to time upon not less than fifteen (15) days prior notice
from Landlord, execute, acknowledge and deliver to Landlord, Master Landlord or
any proposed mortgagee, purchaser or successor in interest, a statement in
writing certifying that this Lease is unmodified and in full force and effect
(or if there have been modifications, that the same are in full force and effect
as modified and stating the modifications) and the dates to which the rent and
other charges have been paid in advance, if any, and stating whether or not to
the best knowledge of Tenant, Landlord is in default in the performance of any
covenant, agreement or condition contained in this Lease and, if so, specifying
each such default of which Tenant may have knowledge, and stating such other
reasonable matters as Landlord may request. Tenant acknowledges that any such
statement delivered pursuant to this Section may be relied upon by
19
Landlord, any prospective mortgagee, ground lessor, Master Landlord or other
like encumbrance thereof or any assignee of any such encumbrance upon the
Premises or the Project.
31. DEFAULT BY TENANT. The occurrence of any one or more of the
following events shall be deemed a default ("DEFAULT"):
31.1 Tenant shall fail to pay any rent to Landlord when the
same is due, and such failure continues for three (3) days after
Landlord has given Tenant written notice specifying the amount due (it
being agreed, however, Landlord shall have no obligation to give Tenant
more than three (3) of such notices in any calendar year); provided,
any such notice shall be in lieu of, and not in addition to, any
statutory unlawful detainer notice provided for in the state in which
the Premises are located.
31.2 Tenant shall fail to observe and perform any other
provision of this Lease to be observed or performed by Tenant, where
such failure continues for twenty (20) days (except where a different
period of time is specified in this Lease) after written notice by
Landlord to Tenant; provided, that any such notice shall be in lieu of,
and not in addition to, any statutory unlawful detainer notice provided
for in the state in which the Premises are located. If the nature of
such default is such that the same cannot be cured within such twenty
(20) day period, Tenant shall not be deemed to be in default if Tenant
shall within such period commence such cure and thereafter diligently
prosecute the same to completion.
31.3 Tenant shall file a voluntary petition in bankruptcy or a
petition or answer seeking a reorganization, arrangement, composition,
readjustment, liquidation, dissolution or other relief of the same or
different kind under any provision of the bankruptcy laws, or Tenant
shall make an assignment for the benefit of creditors;
31.4 An involuntary petition in bankruptcy against Tenant or
petition or answer made by a person other than Tenant seeking a
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or other relief against Tenant of the same or different
kind under any provision of the bankruptcy laws is filed or if a
receiver is appointed having jurisdiction of the business property or
assets of Tenant on the Premises, and, in any of such events, if Tenant
shall not properly commence and expeditiously pursue action to dismiss
any such involuntary petition or answer or to vacate such receivership
and, if after diligently exhausting Tenant's remedies, such petition
shall not be dismissed or the receivership vacated;
31.5 Tenant makes or has made or furnishes any warranty,
representation or statement to Landlord in connection with this Lease,
or any other agreement to which tenant and Landlord are parties, which
is or was false or misleading in any material respect when made or
furnished;
31.6 Tenant fails to cause a release, within ten (10) days
after receipt by Tenant of a notice informing Tenant of the filing of
any lien arising out of any work performed, materials furnished, or
obligations incurred by or for Tenant, which has been filed against the
Premises;
20
31.7 Tenant attempts to transfer, assign, sublet or permit the
occupancy of the Premises in contravention of SECTION 27 of this Lease;
31.8 Tenant vacates or abandons the Premises; or
31.9 Tenant's act or failure to act that results in a default
under the Master Lease.
31.10 Tenant's default under the Non-Disclosure Agreement
described in SECTION 20.2.
32. REMEDIES.
32.1 RIGHTS AND REMEDIES. Upon the occurrence of a Default,
Landlord shall have, in addition to any other rights or remedies
provided in this Lease or otherwise available at law or in equity, the
following rights and remedies:
(a) Landlord shall have the immediate right to
re-enter the Premises and expel Tenant or any person or
persons occupying the same, with or without legal process, and
in any such event, Tenant agrees to peacefully and quietly
yield-up and surrender the Premises to Landlord.
(b) Landlord may elect to either terminate this Lease
by giving written notice to Tenant or from time to time and
without terminating this Lease (or Tenant's right to
possession of the Premises), attempt to relet the Premises or
any part thereof for such term or terms (which may be for a
term extending beyond the Term of this Lease) and at such
rental and upon such other terms and conditions as Landlord
deems advisable; provided, Landlord shall use its good faith
efforts to obtain the best terms and conditions available
thereon using reasonable business judgment under the
circumstances. Upon any such reletting, Tenant shall
immediately vacate the Premises and Tenant shall be
immediately liable to pay to Landlord the cost and expense of
such reletting, the cost of any alterations and repairs
reasonably deemed necessary by Landlord to affect such
reletting and the amount, if any, by which the rent reserved
in this Lease for the period of such reletting (but not beyond
the Term of this Lease then in effect) exceeds the amount
agreed to be paid as rent for the Premises for such period of
reletting.
(c) If Landlord elects to terminate this Lease,
Landlord may recover from Tenant:
(i) The worth at the time of award of the
unpaid rent which had been earned at the time of
termination;
(ii) The worth at the time of award of the
amount by which the unpaid rent which would have been
earned after termination until the time of award
exceeds the amount of such rental loss that Tenant
proves could have been reasonably avoided;
21
(iii) The worth at the time of award of the
amount by which the unpaid rent for the balance of
the term then in effect after the time of award
exceeds the amount of such rental loss that Tenant
proves could be reasonably avoided;
(iv) Any other amounts necessary to
compensate Landlord for all the detriment proximately
caused by Tenant's failure to perform its obligations
under this Lease or which in the ordinary course of
things would be likely to result therefrom; and
(v) At Landlord's election, such other
amounts in addition to or in lieu of the foregoing as
may be permitted from time to time by applicable law
of the State of which the Premises are located.
The "WORTH AT THE TIME OF AWARD" of the amounts referred to in
SUBSECTIONS (i), (ii) and (iii) shall be computed by
discounting such amount at a rate equal to one percent (1%)
plus the discount rate then in effect at the Federal Reserve
Bank of San Francisco. If any loss shall limit the amount of
such liquidated final damages to less than the amount above
agreed upon, Landlord shall be entitled to the maximum amount
allowable under such law.
(d) If a Default occurs and Landlord elects not to
terminate the Lease, as provided above, this Lease shall
continue in effect for so long as Landlord does not terminate
Tenant's right to possession, and Landlord may enforce all its
rights and remedies under this Lease, including the right to
recover the rent as it becomes due under this Lease.
(e) Notwithstanding any reletting without termination
by Landlord because of any Default, Landlord may at any time
after such reletting elect to terminate this Lease for any
such Default. No acceptance by Landlord of a lesser sum than
that due by Tenant nor any endorsement or statement or any
check or letter accompanying any check shall be deemed an
accord and satisfaction.
(f) If Tenant's act or failure to act results in a
default under the Master Lease, Landlord may exercise the same
remedies against Tenant as the Master Landlord may assess from
time to time against Landlord.
32.2 CUMULATIVE NATURE OF RIGHTS. The rights of Landlord
hereunder are cumulative and non-exclusive and Landlord may pursue any
and all rights and remedies permitted under the law of the State in
which the Premises are located.
32.3 ABANDONMENT OF PERSONAL PROPERTY. Whenever Landlord shall
re-enter the Premises pursuant to this Lease, any personal property,
not the property of Landlord, which remains in or about the Premises
upon the expiration of the Term (or within forty eight (48) hours after
a termination by reason of Tenant's default or abandonment), shall be
considered abandoned and Landlord may retain and use the same as its
own property in every respect, or at its option may remove any or all
of such items and dispose of the same in any manner or respect or store
the same in a public warehouse or elsewhere for
22
the account and at the expense and risk of Tenant. If Tenant shall fail
to pay the cost of storing any such property after it has been stored
for a period of ten (10) days or more, Landlord at its option may sell
any or all such property at public or private sale in such manner and
at such times and places as Landlord in its sole discretion may deem
proper without notice to or demand upon Tenant for the payment of all
or any part of such charges, or the removal of any such property.
Landlord shall apply the proceeds of such sale first to the cost and
expense of such sale, including reasonable attorneys' fees actually
incurred; second, to the payment of the costs of or charges for storing
any such property; third, to the payment of any sums of money which may
then or thereafter be due to Landlord from Tenant under any of the
terms hereof; and fourth, the balance, if any, to Tenant. Tenant hereby
waives all claims for damages that may be caused by Landlord's
re-entering and taking possession of the Premises or removing, storing,
releasing or disposing of the property belonging to Tenant or to any
other person or firm as herein provided, and Tenant shall indemnify and
hold harmless Landlord and its Related Parties therefrom and no such
reentry shall be considered or construed to be a forcible entry.
Notwithstanding anything herein to the contrary, Landlord shall be
under no obligation to release any personal property remaining upon the
Premises to Tenant or any other person unless and until Tenant delivers
to Landlord a cash security deposit in an amount equal to the fair
market value of such personal property to secure performance of
Tenant's obligations hereunder.
32.4 BANKRUPTCY PROVISIONS. The following provisions shall
apply if Tenant shall file a voluntary petition in bankruptcy or a
petition or answer seeking a reorganization, arrangement, composition,
readjustment, liquidation, dissolution or other relief of the same or
different kind under any provision of the bankruptcy laws, or if an
involuntary petition in bankruptcy against Tenant, or petition or
answer made by a person other than Tenant seeking a reorganization,
arrangement, composition, readjustment, liquidation, dissolution or
other relief against Tenant of the same or different kind under any
provision of the bankruptcy laws, is filed:
(a) "Adequate Assurance," as used in 11 U.S.C.
Section 365(b)(1)(A) and (B), or in any amendments thereto,
shall mean, in addition to any other requirements under
federal or state law and applicable case law, at least:
(i) segregating a sufficient amount of cash,
in an account at an independent domestic financial
institution, to pay the amount which Landlord claims
to be due under this Lease;
(ii) granting to Landlord a valid first lien
and security interest (in form acceptable to
Landlord) in property of the Tenant having a value,
as established by a current independent appraisal, of
at least twice the amount which Landlord claims to be
due under this Lease; or
(iii) granting to Landlord an irrevocable
letter or credit, bond or other guarantee of payment
(in form acceptable to Landlord) from an independent
third party for the amount which Landlord claims to
be due under this Lease.
23
(b) "Adequate Assurance of Future Performance," as
used in 11 U.S.C. Section 365(b)(1)(C), or in any amendments
thereto, shall mean, in addition to any other requirements
under federal or state law and applicable case law, at least:
(i) depositing with Landlord, as security
for the timely performance of rent and other monetary
obligations, in addition to any other security
deposits required of Tenant under this Lease, an
amount equal to the sum of three (3) months' rent and
three (3) months' of Tenant's annual obligation under
this Lease for the immediately preceding twelve (12)
months for Tenant's Share of Common Operating
Expenses (see SECTION 20), taxes, and similar
charges; and
(ii) identifying adequate sources, to
Landlord's reasonable satisfaction, from which the
rent and other consideration due under this Lease
will be paid or satisfied, in light of Tenant's other
obligations which arise out of or relate to Tenant's
bankruptcy case.
33. WAIVER OF NOTICE. Notwithstanding any other provision contained in
this Lease relating to notice: (a) if the Tenant is required to comply with any
governmental regulation or order within a period less than that to which Tenant
would otherwise be entitled to notice hereunder, Tenant shall not be entitled to
notice from Landlord beyond the period within which compliance may be required
by such regulation or order; or (b) if the Premises require emergency repairs
which Tenant would otherwise be obligated to make under this Lease, but which
Tenant is then unable or unwilling to make, Landlord may, without notice, elect
to make such repairs for the account and at the expense of Tenant. Any amount so
paid shall be immediately due and owing from Tenant to Landlord as additional
rent.
34. LATE CHARGES. Tenant acknowledges that late payment by Tenant to
Landlord of any amount due hereunder will cause Landlord to incur costs not
contemplated by this Lease, the exact amount of such costs being extremely
difficult and impractical to fix. Therefore, if any amount due hereunder from
Tenant is not received by Landlord when any such amount is due, Tenant shall pay
to Landlord an additional sum of six percent (6%) of the overdue amount as a
late charge. The Parties agree that this late charge represents a fair and
reasonable estimate of the costs that Landlord will incur by reason of late
payment by Tenant. Acceptance of any late charge shall not constitute a waiver
of Tenant's default with respect to the overdue amount nor prevent Landlord from
exercising any of the other rights and remedies of the Landlord under this
Lease.
35. QUARTERLY ADVANCE PAYMENTS. If Tenant during any six (6) month
period shall be more than five (5) days delinquent in the payment of any rent or
other payable amount by Tenant hereunder on three (3) or more occasions, then,
notwithstanding anything herein to the contrary, Landlord may, by written notice
to Tenant, elect to require Tenant to pay all rent and additional rent amounts
quarterly in advance. Such right shall be in addition to and not in lieu of any
other right or remedy available to Landlord hereunder or at law on account of
Tenant's default hereunder.
36. INTEREST. Except as expressly provided otherwise in this Lease, any
sum owing to Landlord under the terms and provisions of this Lease which shall
not be paid when
24
due shall bear interest at eighteen (18%) (or the maximum interest permitted by
law, whichever is less) per annum from the date the same becomes due and payable
by the terms and provisions of this Lease until paid (the "INTEREST RATE");
provided, any amounts paid by Landlord to third parties on behalf of Tenant or
to cure any default of Tenant hereunder shall bear interest at the Interest Rate
from the date Landlord paid such amounts; and further provided, any obligation
of Tenant to pay shall continue to bear interest at the Interest Rate after any
breach of this Lease.
37. LANDLORD'S DEFAULT; NOTICE TO LENDER.
37.1 LANDLORD'S DEFAULT. In the case of a monetary default,
Landlord shall have a period of thirty (30) days after notice thereof
from Tenant to cure such monetary default. In the case of a
non-monetary default, Landlord shall commence promptly to cure such
default immediately after receipt of written notice from Tenant
specifying the nature of such default and shall complete such cure
within sixty (60) days thereafter, provided that if the nature of the
non-monetary default is such that it cannot be cured within such sixty
(60) day period, Landlord shall have such additional time as may be
reasonably necessary to complete its performance so long as Landlord
has proceeded with diligence since its receipt of Tenant's notice and
is then proceeding with diligence to cure such default.
37.2 NOTICE TO LENDER. Whenever Tenant is required to serve
notice of Landlord's default, written notice shall also be served at
the same time upon any mortgagee under any mortgage or any beneficiary
under any deed of trust. Such mortgagee or beneficiary shall have the
periods of time within which Landlord has to cure its default under
this SECTION 37. Any representative of the mortgagee or beneficiary
shall have the right to enter upon the Premises for the purpose of
curing Landlord's default. Such mortgagee or beneficiary shall notify
Landlord and Tenant in the manner provided herein of the address of
such mortgagee or beneficiary to which such notice shall be sent, and
the agreements of Tenant hereunder are subject to prior receipt of such
notice from such mortgagee or beneficiary.
38. BROKER'S COMMISSION. Landlord represents and warrants that it has
not entered into any contracts with any brokers or finders nor has Landlord
obligated itself to pay any real estate commissions or finders' fees on account
of the execution of this Lease, except the following: Xxxxxx/Xxxxx General
Partnership, d.b.a. CRESA Partners ("LANDLORD'S BROKER"). Tenant represents and
warrants that it has not entered into any contracts with any brokers or finders,
nor obligated itself to pay any brokers' commission or finders' fee on account
of the execution of this Lease, other than Cornish & Xxxxx Commercial and San
Diego Commercial (collectively "TENANT'S BROKER"). Based on such representations
and warranties, each Party indemnifies and holds the other Party harmless from
any claims, damages, expenses, liabilities, liens or judgments (including
costs, expenses and attorneys' fees in defending the same) which arise on
account of any claim that real estate commissions or finders' fees (including
those identified above) are payable and have not been discharged in their
entirety. Upon execution of this Lease, Landlord shall pay a commission in the
aggregate total of 4.0% of the total rental value of the Lease to Tenant's
Broker. Landlord shall pay a commission to Landlord's Broker pursuant to a
separate written agreement between Landlord and Landlord's Broker.
25
39. ADDITIONAL SECURITY. In addition to the security deposit set forth
in SECTION 3 of this Lease, as additional security for Tenant's prompt and
faithful performance of its obligations hereunder, Landlord shall have a
security interest in Tenant's furniture, fixtures, equipment and other personal
property located upon the Premises. If Landlord requests, Tenant shall provide
Landlord a UCC-1 which may be filed with the appropriate state agency and in the
county records of the county in which the Premises are located. Tenant further
agrees to execute such further documentation as may be necessary to allow
Landlord to perfect its security interest in such items.
40. WAIVER OF DEFAULT. The waiver by either Party of any default in the
performance by the other of any covenant contained herein shall not be construed
to be a waiver of any preceding or subsequent default of the same or any other
covenant contained herein. The subsequent acceptance of rent or other sums
hereunder by Landlord shall not be deemed a waiver of any preceding default
other than the failure of Tenant to pay the particular rent or other sum or
portion thereof so accepted, regardless of Landlord's knowledge of such
preceding default at the time of acceptance of such rent or other sum.
41. EFFECT OF LANDLORD'S ASSIGNMENT. If during the Term Landlord
assigns or otherwise transfers its interest in the Premises or this Lease, then
from and after the effective date of such assignment, Landlord shall be released
and discharged from any and all further obligations and responsibilities under
this Lease, except those accrued of which Landlord has notice at the time of the
assignment. Landlord shall provide Tenant with written notice of the assignment
of its interest in the Premises; provided, failure to provide such notice shall
not defeat the release and discharge contained in this SECTION 41.
42. NOTICES AND PLACE FOR PAYMENT OF RENT. All notices, requests,
demands, and other communications hereunder shall be in writing and shall be
given by (a) established express delivery service which maintains delivery
records, (b) hand delivery, or (c) certified or registered mail, postage
prepaid, return receipt requested, to the Parties at the following addresses, or
at such other address as the Parties may designate by written notice in the
above manner:
To Landlord: Xxxxx & Xxxxxxxxxx Computer Corporation
000 Xxxxx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attn: Xxxxx Xxxxx
Fax: (000) 000-0000
With a copy to: Xxxxx & Xxxxxx
000 Xxxx Xxxxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Attn: W. Xxxxx Xxxxx
Fax: (000) 000-0000
26
To Tenant: Adesso Healthcare Technology Services, Inc.
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
Fax: (000) 000-0000
Communications may also be given by fax, provided the communication is
concurrently given by one of the above methods. Notices are effective upon
receipt, or upon attempted delivery if delivery is refused or if delivery is
impossible because of failure to provide a reasonable means for accomplishing
delivery. Rent shall be paid to Landlord at the address set forth in this
Section.
43. MISCELLANEOUS.
43.1 CONSENT. In consideration of each covenant made elsewhere
under this Lease, wherein one of the Parties agrees not to unreasonably
withhold consent or approval, the requesting Party hereby releases the
other and waives all claims for damages arising out of or connected
with any alleged or claimed unreasonable withholding of consent or
approval.
43.2 INTERPRETATION. The captions by which the Sections of
this Lease are identified are for convenience only and shall have no
effect upon the interpretation of this Lease. Whenever the context so
requires, the singular shall include the plural, the plural shall refer
to the singular, the neuter gender shall include the masculine and
feminine genders, and the words "Landlord", "Tenant", and "person"
shall include corporations, partnerships, associations, other legal
entities, and individuals. If either Party consists of more than one
person, each person shall be jointly and severally liable hereunder. If
any provision of this Lease shall be held invalid by a court, the
remaining provisions shall remain in full force and effect and shall in
no way be impaired thereby.
43.3 ENTIRE AGREEMENT. Subject to the Master Lease, all of the
agreements made by the Parties are contained in this Lease, and this
Lease supersedes and cancels any and all negotiations, arrangements,
brochures, agreements, representations, and understandings, if any,
between the Parties with respect to the subject matter thereof and
shall not be used to interpret or construe this Lease. Landlord has
made no representation to Tenant other than those contained herein, and
Tenant's reliance in entering into this Lease is based solely upon the
terms, covenants and conditions contained herein. This Lease shall be
interpreted and construed only by the content hereof, there shall be no
presumption or standard of construction in favor of or against either
Party, and this Lease cannot be modified in any respect except by a
writing executed by Landlord and Tenant.
43.4 CORPORATE RESOLUTIONS. The individuals who execute this
Lease represent and warrant that they are duly authorized to execute
this Lease on behalf of Landlord or Tenant, as the case may be, that
the Parties named are all the necessary and proper Parties, and that no
other signature, act or authorization is necessary to bind such entity
to the provisions of this Lease.
27
43.5 SEVERABILITY. The invalidity or unenforceability of any
provision of this Lease, as determined by a court, shall in no way
affect the validity and enforceability of any of the remaining
provisions hereof.
43.6 CHOICE OF LAW. This Lease shall be construed according to
and governed by the laws of the State in which the Premises are
located.
43.7 RECORDING. This Lease shall not be recorded; but, at
Landlord's request, Landlord and Tenant shall execute a memorandum of
lease which shall be recorded.
43.8 REMEDIES CUMULATIVE. The various rights, elections, and
remedies of Landlord and Tenant contained in this Lease shall be
cumulative and no one of them shall be construed as exclusive of any of
the others or of any right, priority, or remedy allowed or provided for
by law.
43.9 LEGAL COSTS. In the event that either Party brings or
commences a legal proceeding to enforce any of the terms of the Lease,
the prevailing Party in such action shall have the right to recover
reasonable attorneys' fees and costs from the other Party to be fixed
by the court in the same action. The term "legal proceedings" shall
include appeals from a lower court judgment as well as proceedings in
the Federal Bankruptcy Court ("BANKRUPTCY COURT"), whether or not they
are adversary proceedings or contested matters. The "PREVAILING PARTY"
(a) as used in the context of proceedings in the Bankruptcy Court means
the prevailing Party in an adversary proceeding or contested matter, or
any other actions taken by the non-bankruptcy Party which are
reasonably necessary to protect its rights under this Lease, and (b) as
used in the context of proceedings in any court other than the
Bankruptcy Court shall mean the Party that prevails in obtaining a
remedy or relief which most nearly reflects the remedy or relief which
the Party sought; so that, for example, the prevailing Party may be a
Party which is ordered to pay $100 where the obligation to pay $80 was
undisputed and the claiming Party claimed that it was entitled to
$1,000.
43.10 NO PARTNERSHIP. Landlord shall not in any way or for any
purpose be deemed a partner, joint venturer, or member of any joint
enterprise with Tenant.
43.11 SUBTENANCIES. The voluntary or other surrender of this
Lease by Tenant or a mutual cancellation of this Lease shall not affect
a merger and shall, at Landlord's option, terminate all existing
subtenancies or operate as an assignment to Landlord of any or all of
such subtenancies.
43.12 SUCCESSORS. Each and every covenant and condition of
this Lease shall bind and shall inure to the benefit of the Parties and
their successors. Every covenant and condition of this Lease shall be
binding upon all assignees, subtenants, licensees, and concessionaires
of Tenant.
43.13 INDEPENDENT COVENANTS. Each provision set forth herein,
pursuant to which Tenant is required to pay rent shall be and is a
covenant of Tenant independent of any other term, condition or covenant
contained in this Lease. In the event Tenant shall claim any breach of
any covenant, representation, warranty, promise, condition or term of
28
this Lease, Tenant shall not be entitled to offset the claimed amount
of damages against any rental or other payments due hereunder, it
being expressly agreed that such covenant to pay such amount shall be
independent of any obligation of Landlord hereunder.
43.14 ASSIGNMENT OF RENTS AND PROFITS. If Tenant defaults
hereunder, including, without limitation, a default regarding rent or
other charges due hereunder, Tenant hereby grants to and confers upon
Landlord the right, power and authority to collect all rents and
profits received by Tenant as a result of the possession by Tenant of
the Premises. Such amounts shall include, without limitation, amounts
due under sublease, license or concessionaire agreements. Upon any such
default, Landlord shall have the right to collect such rents and
profits, including those past due and unpaid. Landlord's collection of
such rents and profits shall not cure, waive or satisfy any default or
notice of default hereunder.
43.15 INJUNCTIVE RELIEF. SECTION 8 of this Lease defines the
sole and only use of the Premises allowed under the terms of this
Lease. In the event Tenant, any assignee, subtenant, licensee or
concessionaire of Tenant utilizes the Premises or a portion of the
Premises in any other manner, Landlord shall be entitled to injunctive
relief enjoining such utilization of the Premises in addition to any
other remedy. The Parties expressly agree that utilizing the Premises
in a manner inconsistent with, in excess of, or different from the use
permitted by this Lease would cause severe, material and irreparable
damage to Landlord and that injunctive relief is necessary and
appropriate to provide an adequate remedy. As a result, in addition to
all other legal or equitable remedies to which the Landlord is
entitled, Landlord shall also be entitled to the foregoing injunctive
relief.
43.16 WAIVER OF JURY TRIAL. Landlord and Tenant each
acknowledges that it is aware of and has had the advice of counsel of
its choice with respect to its rights to trial by jury under the
constitutions of the United States and the State in which the Premises
are located, and each Party hereby expressly and knowingly waives and
releases all such rights to trial by jury in any action, proceeding or
counterclaim brought by either Party against the other (or against
their officers, directors, employees, agents or subsidiary or
affiliated entities) on any matters whatsoever arising out of or in any
way connected with this Lease and any dispute arising from or connected
with such matter shall not be tried by jury.
43.17 CONFIDENTIALITY OF DISPUTES. If a dispute arises under
this Lease, Landlord and Tenant agree to keep both the substance and
the existence of such dispute confidential, except as such disclosure
to third persons or entities is: (a) reasonably required to defend or
prosecute such dispute; or (b) required by law.
29
IN WITNESS WHEREOF, the Parties have executed this Lease as of the day
and year first above written.
LANDLORD:
XXXXX & XXXXXXXXXX
GRAPHICS CORPORATION,
a Utah corporation
By /s/ Xxxxx Xxxxx
------------------------------------
Its Vice President
-----------------------------------
TENANT ACKNOWLEDGES THAT BEFORE SIGNING THIS LEASE IT HAS THOROUGHLY REVIEWED
THIS LEASE, REVIEWED THIS LEASE WITH COUNSEL, UNDERSTANDS IT MAY BE WAIVING
CERTAIN RIGHTS, AND AGREES TO ABIDE BY ALL TERMS AND PROVISIONS OF THIS LEASE
(INCLUDING, WITHOUT LIMITATION, THE PROVISIONS OF THE SECTIONS ENTITLED
"ASSIGNMENT, SUBLETTING, AND ENCUMBRANCES", "CONDITION OF THE PREMISES", AND
"WAIVER OF JURY TRIAL").
TENANT:
ADESSO HEALTHCARE
TECHNOLOGY SERVICES, INC.,
a California corporation
By /s/ Xxxxx Xxxxxxx
------------------------------------
Its President and CEO
-----------------------------------
By
------------------------------------
Its
-----------------------------------
30
EXHIBIT A
PREMISES
[MAP]
EXHIBIT B
HAZARDOUS MATERIALS
EXHIBIT "H"
Hazardous Materials Questionnaire
ACKNOWLEDGEMENT
THE UNDERSIGNED HEREBY ACKNOWLEDGES THAT IT (Xxxx One):
X Does not use any hazardous materials other than minor amounts of
------ reproduction and janitorial chemicals consistent with routine office
uses.
(NO NEED TO FILL OUT THE ATTACHED HAZARDOUS MATERIAL QUESTIONNAIRE.)
Does not use hazardous materials in a manner or in a quantity
------ requiring the preparation of a hazardous material management plan or
any other documents under California Health and Safety Code Section
25503.5.
(PLEASE FILL OUT THE ATTACHED HAZARDOUS MATERIAL QUESTIONNAIRE.)
Uses only those chemicals identified in the attached questionnaire in
------ accordance with the provisions of the attached hazardous materials
management plan, which has been approved by the Fire Department of the
City of ___________________ and is in full forces and effect.
(PLEASE FILL OUT THE ATTACHED HAZARDOUS MATERIAL QUESTIONNAIRE AND
ATTACH A COPY OF YOUR HAZARDOUS MATERIALS MANAGEMENT PLAN.)
THE UNDERSIGNED FURTHER ACKNOWLEDGES THAT IT HAS COMPLIED IN ALL RESPECTS TO THE
PROVISIONS OF LOCAL, STATE AND FEDERAL LAW AND THE HAZARDOUS MATERIALS
MANAGEMENT PLAN ATTACHED HERETO IN CONNECTION WITH ITS STORAGE, USE AND DISPOSAL
OF HAZARDOUS MATERIALS AND THAT IT HAS DISPOSED OF HAZARDOUS MATERIALS ONLY BY
(1) DISCHARGE TO APPROPRIATELY TREATED WASTE TO A PUBLICLY OWNED TREATMENT WORK
IN ACCORDANCE WITH A VALID AND ENFORCEABLE WASTE DISCHARGE PERMIT AND (2)
DELIVERY OF HAZARDOUS WASTES TO A PROPERLY LICENSED WASTE DISPOSAL AGENT.
IN WITNESS WHEREOF, the undersigned, an authorized officer of the aforementioned
company has executed this acknowledgement as of the date written below.
Adesso Healthcare Technology Services, Inc.
----------------------------------
Company
a California Corporation
--------------------------------
By:/s/ Xxxxx Xxxxxxx
-------------------------------
Xxxxx Xxxxxxx, President and CEO
----------------------------------
(Print Name and Title)
SILICON VALLEY PROPERTIES, L.L.C.
PRE-LEASE HAZARDOUS MATERIALS QUESTIONNAIRE
General Instructions: Please provide all requested information, based on review
of the Company's records and interviews with Company personnel likely to possess
the information requested. If there is insufficient space to respond to a
question, please attach a separate page referring to the question number. Use
"N/A" if the question is not applicable to your facility, or write "Unknown" if
the information is not available in the Company's files and is not known by the
person completing this questionnaire.
As used herein, the term "Government Agency" shall mean any local, state, or
federal governmental or quasi-governmental agency, authority, entity,
subdivision or court. The term "Hazardous Material" shall mean any chemical,
substance, vapor, smoke, radiation, or material which is listed as "hazardous"
or "toxic" under any Law or which is otherwise regulated or prohibited under any
Law, including petroleum hydrocarbons and substances regulated under Proposition
65. The term "Law" shall mean any local, state, or federal regulation, statute,
law, order, or ordinance.
TENANT/COMPANY NAME Adesso Healthcare Technology Services
-------------------------------------
ADDRESS OF FORMER/CURRENT FACILITY:
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
---------------------------------
Xxx Xxxx, XX 00000
---------------------------------
MAIN ADDRESS OF NEW PREMISES LEASED FROM SILICON VALLEY PROPERTIES, L.L.C:
0000 Xxxxxx Xxxx
----------------------------------
Xxx Xxxx, XX 00000
----------------------------------
(This questionnaire should address all activities to be conducted at the New
Premises including multiple buildings leased by Tenant within the same Project)
DESCRIPTION OF PRODUCTS MANUFACTURED AND/OR ACTIVITIES TO BE CONDUCTED ON THE
PROPERTY:
Adesso is an application services provider (ASP). We write
-----------------------------------------------------------
software and perform standard office work.
-----------------------------------------------------------
The undersigned acknowledges that the information contained within this
Hazardous Materials Questionnaire is true and correct to the best of his/her
knowledge and belief. The undersigned further acknowledges that the Company has
complied in all respects to the provisions of local, state and federal law and
the Hazardous Materials Management Plan attached (if applicable) in connection
with his storage, use, and disposal of hazardous materials and that it has
disposed of hazardous materials only by (1) discharge of appropriately treated
waste in accordance with a valid and enforceable waste discharge permit and (2)
delivery of hazardous wastes to a properly licensed waste disposal agent.
By: /s/ Xxxxx X. Roots Xxxxx X. Roots, Contracts Manager
---------------------------------- ----------------------------------
Signature of individual completing Print Name and Title
questionnaire
Date: 2/1/2000 Phone Number: (000) 000-0000
-------------------------------- ---------------------
Address (if different from above):
----------------------------------------------
1. BUSINESS ACTIVITY
Type of Business Activity(ies): Hazardous Materials Activities
------------------------------- ------------------------------
(check all that apply) (check all that apply)
machine shop degreasing
------------------ ------------------
light assembly chemical etching
------------------ ------------------
research and development wastewater treatment
------------------ ------------------
product service or repair painting
------------------ ------------------
photographic processing stripping
------------------ ------------------
vehicle maintenance or repair metal treatment or finishing
------------------ ------------------
auto/body printing:
------------------ ------------------
engine/drive train type:
------------------ --------------------------
manufacturing: warehouse
------------------ ------------------
product: analytical wet chemistry lab
------------------ ------------------
integrated circuit: plating
------------------ ------------------
manufacturing chemical mixing/synthesis
------------------ ------------------
assembly lathe/mill machining
------------------ ------------------
chemical/pharmaceutical products
------------------
manufacturing
---------
distribution
---------
printed circuit: manufacturing
------------------ ---------
assembly
---------
X other: Professional Office Work X other: Routine janitorial,
----- ----- dish soap, etc.
2. HAZARDOUS MATERIALS USAGE/STORAGE AND PRODUCTION
What chemicals, if any, are involved in your operations (please list the types
of products, the maximum quantity stored on-site, and the annual quantity used).
None
===============================================================================================================
MATERIAL MAX. QUANTITY ON-SITE ANNUAL QTY. USED
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
===============================================================================================================
If this table provides insufficient space, please use additional pages as
necessary.
2
2.1 Is it intended that operations at the proposed facility would involve
Hazardous Materials manufacturing? Do not include hazardous wastes -
see Section 5.
Yes No X
------ ------
2.2 Is it intended that operations at the proposed facility would include
Hazardous Materials use and/or storage that would require completion of
a Hazardous Materials Business Plan?
Yes No X
------ ------
IF YES, PLEASE ATTACH COPIES OF HMMP/HMBP IN
PROCESS OR PLAN FOR CURRENT/FORMER FACILITY.
2.3 Is it intended that operations at the proposed facility would include
installation of any aboveground or underground storage tanks (including
fuel tanks)?
Yes No X
------ ------
3. WASTEWATER DISCHARGES
3.1 Is it intended that operations at the proposed facility would discharge
wastes to any sanitation systems or body of water, or that the facility
would otherwise be required to obtain a wastewater discharge Permit, a
NPDES Permit, or any other permit or approval from a Governmental
Agency concerning wastewater discharges?
Yes No X
------ ------
IF YES, PLEASE ATTACH COPIES OF EACH SUCH
PERMIT AND COMPLETE SCHEDULE 3.
4. AIR EMISSIONS
4.1 Is it intended that operations at the proposed facility would emit any
air contaminant (including, but not limited to volatile organic
compounds, sulfur oxides, carbon monoxide, nitrogen oxides, lead,
particulate matter, toxic air contaminants regulated by the California
Air Resources Board, or hazardous air pollutants listed under Section
112 of the federal Clean Air Act)?
Yes No X
------ ------
IF YES, PLEASE COMPLETE SCHEDULE 4 FOR EACH
EMISSION AND EACH SOURCE.
4.2 Is it intended that operations at the proposed facility would require
obtaining an air emissions permit or other permit or approval from a
Governmental Agency concerning air emissions in order to conduct its
business?
Yes No X
------ ------
IF YES, PLEASE ATTACH COPIES OF EACH SUCH
PERMIT AND COMPLETE SCHEDULE 4.
5. HAZARDOUS WASTE
5.1 Is it intended that operations at the proposed facility would generate
any "hazardous waste" as defined in RCRA, California Code of
Regulations, Title 22, or other government regulations?
Yes No X IF YES, PLEASE COMPLETE SCHEDULE 5.
------ ------
5.2 Is it intended that operations at the proposed facility would file with
any local, state or federal environmental agency a generator's
notification of hazardous waste (e.g. an RCRA 3010 notification) and
hazardous waste generator's reports?
Yes No X
------ -------
IF YES, PLEASE ATTACH A COPY OF SUCH
NOTIFICATION.
5.3 Is it intended that operations at the proposed facility would require
obtaining an EPA hazardous waste generator's identification number?
Yes No X
------ -------
5.4 Is it intended that operations at the proposed facility would require
retention of copies of hazardous waste manifests for hazardous waste
transported off-site?
Yes No X
------ -------
5.5 Is it intended that operations at the proposed facility would require
obtaining a "Part A" or "Part B" Application for a hazardous waste
treatment, storage or disposal facility ("TSD") permit with any
Governmental Agency under RCRA or any similar state or local Law for
the proposed Facility?
Yes No X
------ -------
IF YES, PLEASE ATTACH A COPY OF EACH
APPLICATION IN PROGRESS.
5.6 Is it intended that operations at the proposed facility would require a
permit under California Code of Regulations Title 22 Tiered Permitting
Program, including a standardized permit conditional authorization,
conditional exemption, or variance?
Yes No X
------ -------
IF YES, PLEASE ATTACH A COPY OF THE
DISCLOSURE OR APPLICATION IN PROGRESS
4
6. GOVERNMENT COMPLIANCE AND HAZARDOUS MATERIAL RELEASES AND SPILLS AT
EXISTING FACILIT(IES)
6.1 Has the Company ever received from any Governmental Agency any notice
of violation of any environmental law?
Yes No X IF YES, DESCRIBE FULLY:
------ -------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
6.2 Has there ever been an occasion in any of the existing facilities when
a liquid or solid waste material, fuel or other Hazardous Material was
accidentally or intentionally spilled or released:
Outside of the building?
Yes No X
------ -------
Within the building?
Yes No X
------ -------
If you have answered "yes" to any of the foregoing, please describe the
event(s) in detail, including the Hazardous Materials involved, whether
the event was reported to any Governmental Agency, the responsive
action taken, any claim(s) that have resulted from the event, and all
other relevant information concerning the spill or release. Attach
additional sheets, as necessary.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
5
SCHEDULE 2.1
ON-SITE HAZARDOUS MATERIALS STORAGE AREAS
INSTRUCTIONS: LIST ALL LOCATIONS FOR HAZARDOUS MATERIALS STORAGE AT THE FACILITY
IN THE TABLE BELOW. LIST WASTE STREAMS OF SCHEDULE 5.
====================================================================================================================================
HAZARDOUS
MATERIALS
STORED/MAXIMUM
CONTAINER QTY. INSIDE (1) OR OUTSIDE (0) AND FLOOR MEASURES FOR
STORAGE (GALLONS OR DESCRIBE SECURITY MATERIALS OF SECONDARY
LOCATION POUNDS) MEASURES CONSTRUCTION CONTAINMENT
--------------------------- ------------------------- -------------------------------- ---------------- ---------------------------
EXAMPLE:
--------------------------- ------------------------- -------------------------------- ---------------- ---------------------------
Lab B - see Up to 15-gallon O - flammable storage cabinet Asphalt Built into cabinet
attached plot plan containers of inside fenced area; cabinet
flammables locked
--------------------------- ------------------------- -------------------------------- ---------------- ---------------------------
--------------------------- ------------------------- -------------------------------- ---------------- ---------------------------
--------------------------- ------------------------- -------------------------------- ---------------- ---------------------------
--------------------------- ------------------------- -------------------------------- ---------------- ---------------------------
====================================================================================================================================
===========================
NUMBER OF STORM DRAIN
(SD) OR SANITARY
SEWER (SS) DRAINS AT
STORAGE LOCATION
---------------------------
EXAMPLE:
---------------------------
3 storm drains in
adjacent parking lot
---------------------------
---------------------------
---------------------------
---------------------------
===========================
NOTE: SUBMIT HAZARDOUS MATERIALS MANAGEMENT/BUSINESS PLAN IF IT CONTAINS ALL
REQUESTED INFORMATION.
Facility:___________________________
SCHEDULE 2.2
STORAGE TANKS
INSTRUCTIONS: LIST ALL STORAGE TANKS FOR THE FACILITY OPERATIONS IN THE TABLE
BELOW. ATTACH ADDITIONAL SHEETS AS NECESSARY.
==================================================================================================================
UNDERGROUND
(UST)
OR
ABOVEGROUND CONTENTS:
LOCATION (AST) AND TANK CHEMICAL AND
WITHIN CAPACITY CAPACITY MATERIAL (M) OR METHOD OF
FACILITY (GALLONS) (GALLONS) WASTE (W) SECONDARY CONTAINMENT
------------------------ --------------------- --------------------- --------------------- -----------------------
EXAMPLE:
------------------------ --------------------- --------------------- --------------------- -----------------------
Lab A - see 500 g AST 500 g Sulfuric Acid (M) Epoxy-coated
attached plot reinforced concrete
plan beam
------------------------ --------------------- --------------------- --------------------- -----------------------
------------------------ --------------------- --------------------- --------------------- -----------------------
------------------------ --------------------- --------------------- --------------------- -----------------------
------------------------ --------------------- --------------------- --------------------- -----------------------
==================================================================================================================
===============================================
TYPE AND
METHOD OF LEAK FREQUENCY OF
DETECTION INSPECTION
----------------------- -----------------------
EXAMPLE:
----------------------- -----------------------
Sensor with visual Daily visual
and audible alarm at
security station
----------------------- -----------------------
----------------------- -----------------------
----------------------- -----------------------
----------------------- -----------------------
===============================================
Facility:___________________________________
SCHEDULE 3
DISCHARGES TO SEWERS OR WATER BODIES
INSTRUCTIONS: LIST IN THE TABLE BELOW ALL WASTE STREAMS THAT ARE GENERATED BY
THE FACILITY OPERATIONS THAT MAY BE DISCHARGED TO WATER.
==================================================================================================================
DISCHARGED TO:
SS - SANITARY SEWER APPROXIMATE
CONSTITUENTS OF PS - POINT SOURCE VOLUME/DAY APPLICABLE
DESCRIPTION OF SOURCE WASTE STREAM SD - STORM DRAIN (GALLONS) PERMITS
------------------------ --------------------- -------------------------- ---------------- -----------------------
EXAMPLE:
------------------------ --------------------- -------------------------- ---------------- -----------------------
Bottle wash rinse Dilute acids SS - floor drain in 400g City of Palo Alto
system bottle wash room Industrial Waste
Discharge Permit
------------------------ --------------------- -------------------------- ---------------- -----------------------
------------------------ --------------------- -------------------------- ---------------- -----------------------
------------------------ --------------------- -------------------------- ---------------- -----------------------
==================================================================================================================
==========================
BEST MANAGEMENT PRACTICES
THAT WILL BE IMPLEMENTED
--------------------------
EXAMPLE:
--------------------------
Batch discharge from
hauling tank - test pH
prior to discharge; tank
equipped with secondary
containment
--------------------------
--------------------------
--------------------------
==========================
Facility:___________________________________
SCHEDULE 4
AIR EMISSIONS
INSTRUCTIONS: LIST IN THE TABLE BELOW ALL POLLUTANTS POTENTIALLY EMITTED TO THE
AIR BY THE FACILITY OPERATIONS.
=====================================================================================================================
VOLUME
EMITTED EMITTED CONTROL DEVICES
SOURCE POLLUTANTS (TONS PER YEAR) IN USE PERMITS HELD
-------------------------- ----------------------- ----------------- --------------------------- --------------------
EXAMPLE:
-------------------------- ----------------------- ----------------- --------------------------- --------------------
Burn box - fumes Metals including lead 400 0.002 micron particulate UAAQMD -
generated by painting and volatiles filter Authority in
operations Construct and
Permit to Operate
-------------------------- ----------------------- ----------------- --------------------------- --------------------
-------------------------- ----------------------- ----------------- --------------------------- --------------------
-------------------------- ----------------------- ----------------- --------------------------- --------------------
-------------------------- ----------------------- ----------------- --------------------------- --------------------
=====================================================================================================================
================================
INSPECTION AND
MONITORING PRACTICES
---------------------------------
EXAMPLE:
---------------------------------
Annual source testing; monthly
visual inspections
---------------------------------
---------------------------------
---------------------------------
---------------------------------
=================================
Facility:____________________________________________
SCHEDULE 5
HAZARDOUS WASTE GENERATION
INSTRUCTIONS: LIST IN THE TABLE BELOW ALL CALIFORNIA AND FEDERAL HAZARDOUS
WASTES GENERATED BY THE FACILITY OPERATIONS. DO NOT INCLUDE WASTE STREAMS
REPORTED ON SCHEDULE 3.
================================================================================================================
APPROXIMATE ON-SITE
DESCRIPTION RCRA (R) OR VOLUME STORAGE
OF CALIFORNIA (C) HOW GENERATED PER METHOD AND
WASTE STREAM WASTE? CREATED? MONTH LOCATION
------------------------ --------------------- --------------------- --------------------- ---------------------
EXAMPLE:
------------------------ --------------------- --------------------- --------------------- ---------------------
Spent solvents RCRA Degreasing 30 gallons Drummed
for disposal
------------------------ --------------------- --------------------- --------------------- ---------------------
------------------------ --------------------- --------------------- --------------------- ---------------------
------------------------ --------------------- --------------------- --------------------- ---------------------
------------------------ --------------------- --------------------- --------------------- ---------------------
================================================================================================================
============================================
ULTIMATE
AVERAGE DISPOSAL
STORAGE DESTINATION
DURATION OFFSITE?
(DAYS) YES OR NO
---------------------- ---------------------
EXAMPLE:
---------------------- ---------------------
65 days Yes
---------------------- ---------------------
---------------------- ---------------------
---------------------- ---------------------
---------------------- ---------------------
============================================
Facility:____________________________________________
