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EXHIBIT 10.14
SINGLE TENANT INDUSTRIAL LEASE
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Effective Date:
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(The date set forth below Landlord's signature.)
BASIC LEASE INFORMATION
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Landlord: CATELLUS DEVELOPMENT CORPORATION, a Delaware
corporation
Landlord's Address 0000 X. XxxxxxXxxxxx Xxxxx, Xxxxx 000
For Notice: Xxxxxxx, XX 00000
Attn: Asset Management
Telephone: (000) 000-0000
Fax: (000) 000-0000
Landlord's Address
For Payment of Rent: File #53694
Xxx Xxxxxxx, XX 00000-0000
Tenant: XXXXXXXX MICRO SCIENCE, INC., a Delaware corporation
Tenant's Address:
For Notice: 0000 Xxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, XX 00000-0000
Attn: Xxxxx Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
Project: 0000 Xxxx 00xx Xxxxxx, Xxxxxx
Building: Approximately 48,315 rentable square feet as shown in
Exhibit A.
Building Address:
Street: 0000 Xxxx 00xx Xxxxxx
Xxxx xxx Xxxxx: Xxxxxx, XX 00000
Lot: The tax parcel on which the Building is located.
Term: Sixty (60) months
Commencement Date: March 1, 1997
Base Rent Per Month: Fourteen Thousand Dollars ($14,000.00) for the first
30 months and Fifteen Thousand Four Hundred Dollars
($15,400.00) for the next 30 months.
Security Deposit: Fourteen Thousand Six Hundred Seventy-Four Dollars
($14,674.00)
Broker: None
Lease Year: Shall refer to each three hundred sixty-five (365)
day period during the Term commencing on the
Commencement Date and on each anniversary thereof.
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Permitted Uses: Pre and/or post sterilization warehousing and/or
sterilization processing of cosmetic, medical, and food
products, and for all ancillary uses and no other uses
shall be permitted without the prior written consent of
Landlord which shall not be unreasonably withheld.
EXHIBITS
A - Building/Lot - Premises
B - Work Letter - Not Applicable
C - Commencement Date Memorandum - Not Applicable
D - Insurance Certificate
E - Prohibited Uses
F - Rules and Regulations
G - Estoppel Certificate
The Basic Lease Information set forth above and the Exhibits attached
hereto are incorporated into and made a part of the following Lease. Each
reference in this Lease to any of the Basic Lease Information shall mean the
respective information above and shall be construed to incorporate all of the
terms provided under the particular Lease paragraph pertaining to such
information. In the event of any conflict between the Basic Lease Information
and the provisions of the Lease, the latter shall control.
LANDLORD ( ) AND TENANT ( ) AGREE.
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initial initial
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Table of Contents
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1. PREMISES.......................................................... 1
1.1 Premises..................................................... 1
1.2 Reserved Rights.............................................. 1
2. TERM.............................................................. 1
2.1 Commencement Date............................................ 1
3. RENT.............................................................. 1
3.1 Rent......................................................... 1
3.2 Late Charge and Interest..................................... 1
3.3 Security Deposit............................................. 2
4. UTILITIES......................................................... 2
5. TAXES............................................................. 2
5.1 Real Property Taxes.......................................... 2
5.2 Personal Property Taxes...................................... 3
6. TRIPLE NET LEASE.................................................. 3
7. INSURANCE......................................................... 4
7.1 Landlord.......................................................... 4
7.2 Tenant....................................................... 4
7.3 General...................................................... 5
7.4 Indemnity.................................................... 6
7.5 Exemption of Landlord from Liability......................... 6
8. REPAIRS AND MAINTENANCE........................................... 6
8.1 Landlord..................................................... 6
8.2 Tenant....................................................... 7
9. ALTERATIONS....................................................... 7
9.1 Trade Fixtures; Alterations.................................. 7
9.2 Damage; Removal.............................................. 7
9.3 Liens........................................................ 8
10. USE............................................................... 8
11. ENVIRONMENTAL MATTERS............................................. 8
11.1 Hazardous Materials......................................... 8
11.2 Indemnification............................................. 9
11.3 Landlord's Representation................................... 9
12. DAMAGE AND DESTRUCTION...................................... 10
12.1 Casualty.................................................... 10
12.2 Tenant's Fault.............................................. 11
12.3 Uninsured Casualty.......................................... 11
12.4 Waiver...................................................... 11
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13. EMINENT DOMAIN...................................................... 11
13.1 Total Condemnation............................................ 11
13.2 Partial Condemnation.......................................... 11
13.3 Award......................................................... 11
13.4 Temporary Condemnation........................................ 12
14. DEFAULT............................................................. 12
14.1 Events of Defaults........................................... 12
14.2 Remedies..................................................... 12
14.3 Cumulative................................................... 14
15. ASSIGNMENT AND SUBLETTING........................................... 14
16. ESTOPPEL, ATTORNMENT AND SUBORDINATION.............................. 14
16.1 Estoppel..................................................... 14
16.2 Subordination................................................ 15
16.3 Attornment................................................... 15
17. MISCELLANEOUS....................................................... 15
17.1 General...................................................... 15
17.2 Signs........................................................ 16
17.3 Waiver....................................................... 16
17.4 Financial Statements......................................... 16
17.5 Limitation of Liability...................................... 16
17.6 Notices...................................................... 17
17.7 Brokerage Commission......................................... 17
17.8 Authorization................................................ 17
17.9 Holding Over; Surrender...................................... 17
17.10 Joint and Several............................................ 17
17.11 Covenants and Conditions..................................... 18
17.12 Addenda...................................................... 18
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1. PREMISES.
1.1 Premises. Landlord hereby leases to Tenant the Building and that
portion of the Lot (or all thereof if the Building constitutes the material
improvement thereon) upon which the same is situated (hereinafter collectively
referred to as the "Premises") as shown on Exhibit A attached hereto.
1.2 Reserved Rights. Landlord reserves the right to enter the Premises
upon reasonable prior notice to Tenant (except in case of an emergency) and/or
to undertake the following: inspect the Premises and/or the performance by
Tenant of the terms and conditions hereof; grant easements on the Project,
dedicate for public use portions thereof and record covenants, conditions and
restrictions ("CC&R's") affecting the Project and/or amendments to existing
CC&R's which do not unreasonably interfere with Tenant's use of the Premises;
change the name of the Project; and, during the last nine (9) months of the
Term, show the Premises to prospective tenants. Except in emergency
situations, Tenant shall have the right to accompany Landlord, its agents, or
representatives upon any such entry upon the Premises.
2. TERM.
2.1 Commencement Date. The Term of the Lease shall commence on the
Commencement Date set forth in the Basic Lease Information ("Commencement
Date"), and the Lease shall continue in full force and effect for the period of
time specified as the Term or until this Lease is terminated as otherwise
provided herein.
3. RENT.
3.1 Rent. Tenant shall pay to Landlord, at Landlord's Address for Payment
of Rent designated in the Basic Lease Information, or at such other address as
Landlord may from time to time designate in writing to Tenant for the payment
of Rent, the Base Rent, without notice, demand, offset or deduction, in
advance, on the first day of each calendar month. Upon the execution of this
Lease, Tenant shall pay to Landlord the first month's Base Rent. If the Term
commences (or ends) on a date other than the first (or last) day of a month,
Base Rent shall be prorated on a per diem basis with respect to the portion of
the first month and/or last month within the Term. All sums other than Base
Rent which Tenant is obligated to pay under this Lease shall be deemed to be
additional rent due hereunder, whether or not such sums are designated
"additional rent." The term "Rent" means the Base Rent and all additional rent
payable hereunder.
3.2 Late Charge and Interest. The late payment of any Rent will cause
Landlord to incur additional costs, including administration and collection
costs and processing and accounting expenses and increased debt service
("Delinquency Costs"). If Landlord has not received any installment of Rent
within five (5) days after such amount is due, Tenant shall pay a late charge
of ten percent (10%) of the delinquent amount, which is agreed to represent a
reasonable estimate of the Delinquency Costs incurred by Landlord. In
addition, all such delinquent amounts shall bear interest from the date such
amount was due until paid in full at a rate per annum ("Applicable Interest
Rate") equal to the lesser of (a) the maximum interest rate permitted by law or
(b) five percent (5%) above the rate publicly announced by Bank of America,
N.A. (or if Bank of America, N.A. ceases to exist, the largest bank then
headquartered in the State of California ("Bank") as its "Reference Rate." If
the use of the announced Reference Rate is discontinued by the Bank, then the
term Reference Rate shall mean the announced rate charged by the Bank which is,
from time to time, substituted for the Reference Rate. Landlord and Tenant
recognize that the damage which Landlord shall suffer as a result of Tenant's
failure to pay such amounts is difficult to ascertain and said late charge and
interest are the best estimate of the damage which Landlord shall suffer in the
event of late payment. If a
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late charge becomes payable for any three (3) installments of Rent within any
twelve (12) month period, then the Rent shall automatically become due and
payable quarterly in advance.
3.3 Security Deposit. Upon the execution of this Lease, Tenant shall pay
to Landlord the Security Deposit. The Security Deposit shall secure the full
and faithful performance of each provision of this Lease to be performed by
Tenant. Landlord shall not be required to pay interest on the Security Deposit
or to keep the Security Deposit separate from Landlord's own funds. If Tenant
fails to perform fully and timely all or any of Tenant's covenants and
obligations hereunder, Landlord may, but without obligation, apply all or any
portion of the Security Deposit toward fulfillment of Tenant's unperformed
covenants and/or obligations. If Landlord does so apply any portion of the
Security Deposit, Tenant shall immediately pay Landlord sufficient cash to
restore the Security Deposit to the amount of the then current Base Rent per
month. Upon any increase in Base Rent, Landlord may require the Security
Deposit to be increased by the amount of the increase in Base Rent per month.
After Tenant vacates the Premises, upon the expiration or sooner termination of
this Lease, if Tenant is not then in default, Landlord shall return to Tenant
any unapplied balance of the Security Deposit. SEE ADDENDUM
4. UTILITIES. Tenant shall make all arrangements for and shall pay all
charges for heat, water, gas, electricity, telephone and any other utilities
used on or provided to the Premises including, without limitation, paying any
deposits and "hook up charges." Landlord shall not be liable to Tenant for
interruption in or curtailment of any utility service, nor shall any such
interruption or curtailment constitute constructive eviction or grounds for
rental abatement.
5. TAXES.
5.1 Real Property Taxes. Landlord shall pay to the proper taxing
authorities as the same become due all Real Property Taxes applicable to the
Premises, subject to reimbursement by Tenant as provided below. The term "Real
Property Taxes" shall be the sum of the following: all real property taxes,
possessory-interest taxes, business or license taxes or fees, service payments
in lieu of such taxes or fees, annual or periodic license or use fees, excises,
transit and traffic charges, housing fund assessments, open space charges,
child care fees, school, sewer and parking fees or any other assessments,
levies, fees, exactions or charges, general and special, ordinary and
extraordinary, unforeseen as well as foreseen (including fees "in-lieu" of any
such tax or assessment) which are assessed, levied, charged, conferred or
imposed by any public authority upon the Premises (or any real property
comprising any portion thereof) or its operations, together with all taxes,
assessments or other fees imposed by any public authority upon or measured by
any Rent or other charges payable hereunder, including any gross receipts tax
or excise tax levied by any governmental authority with respect to receipt of
rental income, or upon, with respect to or by reason of the development,
possession, leasing, operation, management, maintenance, alteration, repair,
use or occupancy by Tenant of the Premises or any portion thereof, or
documentary transfer taxes upon this transaction or any document to which
Tenant is a party creating or transferring an interest in the Premises,
together with any tax imposed in substitution, partially or totally, of any tax
previously included within the aforesaid definition or any additional tax the
nature of which was previously included within the aforesaid definition,
together with the costs and expenses (including attorneys and expert witness
fees and costs) of challenging any of the foregoing or seeking the reduction in
or abatement, redemption or return of any of the foregoing, but only to the
extent of any such reduction, abatement, redemption or return. Nothing
contained in this Lease shall require Tenant to pay any franchise, corporate,
estate or inheritance tax of Landlord, or any income, profits or revenue tax or
charge upon the net income of Landlord.
5.1.1 Reimbursement By Tenant. Tenant shall pay to Landlord an amount
equal to the Real Property Taxes then due within fifteen (15) days after
delivery to Tenant by Landlord of an invoice for the same. Landlord may, at
Landlord's option, deliver statements from
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different taxing authorities at different times or deliver all such statements
at one time. In addition, Landlord may elect to collect such Real Property
Taxes from Tenant in advance, on a monthly or quarterly basis, based upon
Landlord's reasonable estimate of such Real Property Taxes. If the amount of
monthly or quarterly payments for estimated Real Property Taxes received by
Landlord from Tenant is more or less than the actual Real Property Taxes due, an
appropriate adjustment shall be made by Landlord and Tenant within thirty (30)
days after determination of such adjustment.
5.1.2 Partial Years. Real Property Taxes for partial tax fiscal
years, if any, falling within the Term, shall be prorated. Tenant's obligations
for Real Property Taxes for the last full or partial year of the Term shall
survive the expiration or earlier termination of this Lease.
5.2 Personal Property Taxes. Prior to delinquency, Tenant shall pay all
taxes and assessments levied upon the trade fixtures, alterations, additions,
improvements, inventories and other personal property located and/or installed
on the Premises by Tenant; and Tenant shall provide Landlord copies of receipts
for payments of all such taxes and assessments. To the extent any such taxes
are not separately assessed or billed to Tenant, Tenant shall pay the amount
thereof as invoiced by Landlord.
6. TRIPLE NET LEASE. It is intended that this Lease be a "triple net lease,"
and that the Rent to be paid hereunder by Tenant will be received by Landlord
without any deduction or offset whatsoever by Tenant, foreseeable or
unforeseeable, unless otherwise specifically and expressly provided for in this
Lease. Except as expressly provided to the contrary in this Lease, Landlord
shall not be required to make any expenditure, incur any obligation, or incur
any liability of any kind whatsoever in connection with this Lease or the
ownership, construction, maintenance, operation or repair of the Premises.
Notwithstanding the foregoing, Tenant shall reimburse Landlord monthly, as
additional rent, for all costs and fees reasonably incurred by Landlord in
connection with the management of this Lease and the Premises including the
cost of those services which are customarily performed by a property management
services company. Management expenses shall not include the following:
6.1 Any cost or expense to the extent to which Landlord is paid
or reimbursed and/or is entitled to payment or reimbursement from
any other person;
6.2 Salaries and bonuses of officers and executives of Landlord;
6.3 The cost of any work or services performed for any facility
other than the Building;
6.4 Interest on debt or principal amortization payments or any
other payments on mortgage and rental or any other payments under
any ground lease or other underlying lease;
6.5 Any fees, costs, and commissions incurred in procuring or
attempting to procure other tenants including, but not necessarily
limited to, brokerage commissions, finders fees, attorney's fees and
expenses, entertainment costs and travel expenses;
6.6 Any costs of painting or decorating of any interior parts of
the Building other than common areas;
6.7 Landlord's general overhead except as it relates specifically
to the actual management of the Building;
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6.8 Taxes and insurance on tenant improvements in locations other than
the Premises and/or for the primary benefit and/or use by Tenant;
6.9 Capital improvements made to or capital assets acquired for the
Project after the Commencement Date unless such improvements reduce
operating expenses or are reasonably necessary for the health and
safety of the occupants of the Project or are required under any
governmental law or regulation, in which event, said capital costs,
or an allocable portion thereof, shall be amortized over the life of
the improvements as reasonably determined by Landlord, together with
interest on the unamortized balance at the Applicable Interest Rate.
7. INSURANCE.
7.1 Landlord. Landlord shall maintain insurance insuring the Building
against fire and extended coverage (including, if Landlord elects, "all risk"
coverage, earthquake/volcanic action, flood and/or surface water insurance) for
the full replacement cost of the Building, with deductibles and the form and
endorsements of such coverage as selected by Landlord, together with rental
abatement insurance against loss of Rent in an amount equal to the amount of
Rent for a period of at least twelve (12) months commencing on the date of
loss. Landlord may also carry such other insurance as Landlord may reasonably
deem prudent or advisable, including, without limitation, liability insurance
in such amounts and on such terms as Landlord shall determine (provided,
however, that Tenant shall not be required to reimburse Landlord for such
additional insurance if the additional coverage Landlord elects to carry
amounts to double coverage for risks already insured as required of Tenant in
accordance with Section 7.2 below). Tenant shall pay to Landlord an amount
equal to the premiums then due within fifteen (15) days after delivery to
Tenant by Landlord of an invoice for any such premiums. Landlord may, at
Landlord's option, elect to collect such premiums from Tenant in advance, on a
monthly or quarterly basis, based upon Landlord's reasonable estimate of such
premiums. If the amount of monthly or quarterly payments for estimated
premiums received by Landlord from Tenant are more or less than the actual
premiums due, an appropriate adjustment shall be made by Landlord and Tenant
within ninety (90) days of determination of such adjustment.
7.2 Tenant. Tenant shall, at Tenant's expense, obtain and keep in force
at all times the following insurance:
7.2.1 Commercial General Liability Insurance (Occurrence Form). A
policy of commercial general liability insurance (occurrence form) having a
combined single limit of not less than Two Million Dollars ($2,000,000) per
occurrence and Two Million Dollars ($2,000,000) aggregate per location if Tenant
has multiple locations (alternatively, Tenant may satisfy such per location
requirement by demonstrating in writing that it carries umbrella and excess
coverage of not less than Five Million Dollars ($5,000,000), providing coverage
for, among other things, blanket contractual liability, premises,
products/completed operations and personal and advertising injury coverage, with
deletion of (a) the exclusion for operations within fifty (50) feet of a
railroad track (railroad protective liability), if applicable, and (b) the
exclusion for explosion, collapse or underground hazard, if applicable, and, if
necessary, Tenant shall provide for restoration of the aggregate limit.
7.2.2 Workers' Compensation and Employer's Liability Insurance.
Workers' compensation insurance having limits not less than those required by
state statute and federal statute, if applicable, and covering all persons
employed by Tenant in the conduct of its operations on the Premises )including,
if applicable, the volunteers endorsement), together with employer's liability
insurance coverage in the amount of at lease One Million Dollars ($1,000,000);
and
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7.2.3 Property Insurance. "All risk" property insurance including
boiler and machinery comprehensive form, if applicable, covering damage to or
loss of any of Tenant's personal property, fixtures, equipment and alterations,
including electronic data processing equipment (collectively "Tenant's
Property") (and coverage for the full replacement cost thereof including
business interruption of Tenant), together with, if the property of Tenant's
invitee's is to be kept in the Premises, warehouser's legal liability or bailee
customers insurance for the full replacement cost of the property belonging to
invitee's and located in the Premises or such other amount as otherwise agreed
to by Tenant and its invitees. In the event Tenant does not carry the
warehouser's legal liability or bailee customers insurance for the full
replacement cost of the property belonging to invitees, Tenant shall, and hereby
does agree to indemnify, protect, defend by counsel acceptable to Landlord, and
hold harmless Landlord and its partners, directors, officers, employees,
shareholders, lenders, agents, contractors and each of their successors and
assigns from and against any and all claims, judgments, causes of action,
damages, penalties, costs, liabilities, and expenses, including all costs,
attorneys' fees, expenses and liabilities incurred in the defense of any such
claim or any action or proceeding brought thereon, arising at any time during or
after the Term as a result (directly or indirectly) of or in connection with
claims or causes of action brought in connection with such property belonging to
others.
7.3 General.
7.3.1 Insurance Companies. Insurance required to be maintained by
Tenant and Landlord shall be written by companies licensed to do business in the
state in which the Premises are located and having a "General Policyholders
Rating" of at least A 8 (or such higher rating as may be required by a lender
having a lien on the Premises) as set forth in the most current issue of "Best's
Insurance Guide."
7.3.2 Certificates of Insurance. Tenant shall deliver to Landlord
certificates of insurance for all insurance required to be maintained by Tenant
in the form of Exhibit D, attached hereto, no later than seven (7) days prior to
the date of possession of the Premises. Tenant shall, at least ten (10) days
prior to expiration of the policy, furnish Landlord with certificates of renewal
or "binders" thereof. Each certificate shall expressly provide that such
policies shall not be cancelable or otherwise subject to modification except
after thirty (30) days prior written notice to the parties named as additional
insured in this Lease (except in the case of cancellation for nonpayment of
premium in which case cancellation shall not take effect until at least (10)
days' notice has been given to Landlord). If Tenant fails to maintain any
insurance required in this Lease, Tenant shall be liable for all losses and cost
resulting from said failure.
7.3.3 Additional Insured. Landlord and any property management
company of Landlord for the Premises shall be named as additional insured under
all of the policies required by Section 7.2.1. The policies required under
Section 7.2.1 shall provide for severability of interest.
7.3.4 Primary Coverage. All insurance to be maintained by Tenant
shall, except for workers' compensation and employer's liability insurance, be
primary, without right of contribution from insurance of Landlord. Any umbrella
liability policy or excess liability policy (which shall be in "following form")
shall provide that if the underlying aggregate is exhausted, the excess coverage
will drop down as primary insurance. The limits of insurance maintained by
Tenant shall not limit Tenant's liability under this Lease.
7.3.5 Waiver of Subrogation. Tenant waives any right to recover
against Landlord for claims for damages to Tenant's property to the extent
covered (or required by this Lease to be covered) by insurance. Landlord waives
any right to recover against Tenant for damages to Landlord's property to the
extent covered, or required by this Lease to be covered, by property insurance.
This provision is intended to waive fully, and for the benefit of Landlord and
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Tenant, any rights and/or claims which might give rise to a right of subrogation
in favor of any insurance carrier. The coverage obtained by Landlord and Tenant
pursuant to this Lease shall include, without limitation, a waiver of
subrogation endorsement attached to the certificate of insurance.
7.3.6 Notification of Incidents. Tenant shall notify Landlord within
twenty-four (24) hours after the occurrence of any accidents or incidents in the
Premises which could give rise to a claim under any of the insurance policies
required under this Section 7.
7.4 Indemnity. Tenant shall indemnify, protect, defend (by counsel
acceptable to Landlord) and hold harmless Landlord and its partners, directors,
officers, employees, shareholders, lenders, agents, contractors and each of
their successors and assigns from and against any and all claims, judgments,
causes of action, damages, penalties, costs, liabilities, and expenses,
including all costs, attorneys' fees, expenses and liabilities incurred in the
defense of any such claim or any action or proceeding brought thereon, arising
at any time during or after the Term as a result (directly or indirectly) of or
in connection with (i) any default in the performance of any obligation on
Tenant's part to be performed under the terms of this Lease, or (ii) Tenant's
use of the Premises, the conduct of Tenant's business or any activity, work or
things done, permitted or suffered by Tenant in or about the Premises or other
portions of the Project, except for and limited to the extent that claims are
caused by Landlord's negligence or wilful misconduct. Tenant shall in any
event undertake and pay for the cost of defense for Landlord (with counsel
reasonably acceptable to Landlord), and in the event that it is determined by a
court of competent jurisdiction that the plaintiff(s) in such action(s) is
entitled to an award based upon the comparative negligence of Landlord, any
award and the cost of defending such suit shall be allocated between Tenant and
Landlord in the proportion of the comparative negligence so determined. The
obligations of Tenant under this Section 7.4 shall survive the termination of
this Lease with respect to any claims or liability arising prior to such
termination.
7.5 Exemption of Landlord from Liability. Tenant, as a material part of
the consideration to Landlord, hereby assumes all risk of damage to property
including, but not limited to, Tenant's fixtures, equipment, furniture and
alterations or injury to persons in, upon or about the Premises or other
portions of the Project arising from any cause, and Tenant hereby waives all
claims in respect thereof against Landlord, except to the extent such claims
are caused by Landlord's gross negligence or wilful misconduct. Tenant hereby
agrees that Landlord shall not be liable for injury to Tenant's business or any
loss of income therefrom or for damage to the property of Tenant, or injury to
or death of Tenant, Tenant's employees, invitee's, customers, agents or
contractors or any other person in or about the Premises or the Project,
whether such damage or injury is caused by fire, steam, electricity, gas, water
or rain, or from the breakage, leakage or other defects of sprinklers, wires,
appliances, plumbing, air conditioning or lighting fixtures, or from any other
cause, whether said damage or injury results from conditions arising upon the
Premises, or from other sources or places, and regardless of whether the cause
of such damage or injury or the means of repairing the same is inaccessible to
Tenant, except to the extent caused by Landlord's gross negligence or wilful
misconduct.
8. REPAIRS AND MAINTENANCE.
8.1 Landlord. Landlord shall, subject to the following sentence, maintain
the structural portions of the roof, foundation, and load-bearing portions of
walls (excluding wall coverings, painting, glass and doors) of the Premises.
Landlord shall not be required to make any repair resulting from (i) any
alteration or modification to the Premises or to mechanical equipment within
the Premises performed by, for or because of Tenant or to special equipment or
systems installed by, for or because of Tenant, (ii) the installation, use or
operation of Tenant's property, fixtures and equipment, (iii) the moving of
Tenant's property in or out of the Premises, (iv) Tenant's use or occupancy of
the Premises in violation of Section 10 of this Lease or in the
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manner not contemplated by the parties at the time of the execution of this
Lease, (v) the acts or omissions of Tenant and Tenant's employees, agents,
invitees, subtenants, licensees or contractors, (vi) fire and other casualty,
except as provided by Section 12 of this Lease or (vii) condemnation, except as
provided in Section 13 of this Lease. Landlord shall have no obligation to make
repairs under this Section 8.1 until a reasonable time after receipt of written
notice from Tenant of the need for such repairs. Tenant waives any right to
repair the Premises at the expense of Landlord under any applicable governmental
laws, ordinances, statutes, orders or regulations now or hereafter in effect
which might otherwise apply.
8.2 Tenant. Except for the portions of the Premises expressly required to
be maintained by Landlord under Section 8.1, Tenant, at Tenant's expense, shall
maintain the Premises in good order, condition and repair, including, without
limitation, subfloors and floor coverings, walls and wall coverings,
mechanical, electrical, and plumbing systems, doors, windows, truck aprons,
gutters and downspouts, landscaping and any signage. Tenant shall enter into
regularly scheduled preventive maintenance/service contracts with maintenance
contractors reasonably acceptable to Landlord for servicing all hot water and
heating and air conditioning systems and equipment in the Premises. In the
event Tenant fails, in the reasonable judgment of Landlord, to maintain the
Premises in good order, condition and repair, Landlord shall have the right to
perform such maintenance, repairs or refurbishing at Tenant's expense.
9. ALTERATIONS.
9.1 Trade Fixtures; Alterations. Tenant may install necessary trade
fixtures, equipment and furniture in the Premises, provided that such items are
installed and are removable without structural or material damage to the
Premises or the Project. Tenant shall not construct, nor allow to be
constructed, any alterations or physical additions in, about or to the Premises
without obtaining the prior written consent of Landlord, which consent shall be
conditioned upon Tenant's compliance with Landlord's reasonable requirements
regarding construction of improvements and alterations but such consent
otherwise shall not be unreasonably withheld. Tenant shall submit plans and
specifications to Landlord with Tenant's request for approval and shall
reimburse Landlord for all costs which Landlord may incur in connection with
granting approval to Tenant for any such alterations and additions, including
any costs or expenses which Landlord may incur in electing to have outside
architects and engineers review said matters. Tenant shall file a notice of
completion after completion of such work and provide Landlord with a copy
thereof. Tenant shall provide Landlord with a set of "as-built" drawings for
any such work.
SEE ADDENDUM
9.2 Damage; Removal. Tenant shall repair all damage to the Premises
caused by the installation or removal of Tenant's fixtures, equipment,
furniture and alterations. Upon the termination of this Lease, Tenant shall
remove any or all alterations, additions, improvements and partitions made or
installed by Tenant and restore the Premises to its condition existing prior to
the construction of any such items; provided, and upon condition that Tenant
requests in writing the prior approval of Landlord to the construction or
installation of such items together with notice of whether or not such items
are intended to be removed or be left upon termination, Landlord shall notify
Tenant prior to installation of any improvements or alterations that Tenant
must remove such items at the end of the Lease term. In the event of the
construction of other alterations, additions, improvements and partitions not
covered by the foregoing, Landlord may permit, upon written notice to Tenant,
any such items designated by Landlord to remain on the Premises, in which event
they shall be and become the property of Landlord upon termination of this
Lease. All such removals and restoration shall be accomplished in a good and
workmanlike manner and so as not to cause any damage to the Premises or the
Project whatsoever.
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9.3 Liens. Tenant shall promptly pay and discharge all claims for labor
performed, supplies furnished and services rendered at the request of Tenant
and shall keep the Premises free of all mechanics' and materialmen's liens in
connection therewith. Tenant shall provide at least ten (10) days prior
written notice to Landlord before any labor is performed, supplies furnished or
services rendered on or at the Premises and Landlord shall have the right to
post on the Premises notices of non-responsibility. If any lien is filed,
Tenant shall cause such lien to be released and removed within ten (10) days
after the date of filing, and if Tenant fails to do so, Landlord may take such
action as may be necessary to remove such lien and Tenant shall pay Landlord
such amounts expended by Landlord together with interest thereon at the
Applicable Interest Rate from the date of expenditure. Notwithstanding the
foregoing, Tenant shall have the right to contest in good faith and with
reasonable diligence the validity of such lien provided that Tenant posts with
Landlord a bond or provides other adequate assurance of financial
responsibility, all in Landlord's sole discretion, to protect against damage or
loss to Landlord as a result of such lien.
10. USE. The Premises shall be used only for the Permitted Uses set forth in
the Basic Lease Information and for no other uses. Tenant's use of the
Premises shall be in compliance with and subject to all applicable governmental
laws, ordinances, statutes, orders and regulations and any CC&R's or any
supplement thereto recorded in any official or public records with respect to
the Project or any portion thereof. In no event shall the Premises be used for
any of the Prohibited Uses set forth on Exhibit E attached hereto. Tenant
shall comply with the rules and regulations attached hereto as Exhibit F,
together with such additional rules and regulations as Landlord may from time
to time prescribe. Tenant shall not commit waste, overload the floors or
structure of the Premises, subject the Premises or the Project to any use which
would damage the same or increase the risk of loss or violate any insurance
coverage, permit any unreasonable odors, smoke, dust, gas, substances, noise or
vibrations to emanate from the Premises, take any action which would constitute
a nuisance or would disturb, obstruct or endanger any other tenants of the
Project, take any action which would abrogate any warranties, or use or allow
the Premises to be used for any unlawful purpose. Tenant shall have the right
to use for its employees and invitees, the parking areas on the Premises.
Landlord shall not be responsible for non-compliance by any other tenant or
occupant of the Project with, or Landlord's failure to enforce, any of the
rules or regulations or any other terms or provisions of such tenant's or
occupant's lease. Tenant shall promptly comply with the reasonable
requirements of any board of fire insurance underwriters or other similar body
now or hereafter constituted. Tenant shall not do any act which shall in any
way encumber the title of Landlord in and to the Premises or the Project.
11. ENVIRONMENTAL MATTERS.
11.1 Hazardous Materials. Tenant shall not cause nor permit, nor allow
any of Tenant's employees, agents, customers, visitors, invitee's, licensees,
contractors, assignees or subtenants (collectively, "Tenant's Parties") to
cause or permit, any Hazardous Materials to be brought upon, stored,
manufactured, generated, blended, handled, recycled, treated, disposed or used
on, under or about the Premises or the Project, except for routine office and
janitorial supplies, and those substances customarily used in connection with
the practice of laboratory testing consistent with the Permitted Uses, in usual
and customary quantities stored, used and disposed of in accordance with all
applicable Environmental Laws. As used herein, "Hazardous Materials" means any
chemical, substance, material, controlled substance, object, condition, waste,
living organism or combination thereof which is or may be hazardous to human
health or safety or to the environment due to its radioactivity, ignitability,
corrosivity, reactivity, explosivity, toxicity, carcinogenicity, mutagenicity,
phytotoxicity, infectiousness or other harmful or potentially harmful
properties or effects, including, without limitation, petroleum and petroleum
products, asbestos, radon, polychlorinated biphenyls (PCBs) and all of those
chemicals, substances, materials, controlled substances, objects, conditions,
wastes, living organisms or combinations thereof which are now or become in the
future listed, defined or
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regulated in any manner by any Environmental Law based upon, directly or
indirectly, such properties or effects. As used herein, "Environmental Laws"
means any and all federal, state or local environmental, health and/or
safety-related laws, regulations, standards, decisions of courts, ordinances,
rules, codes, orders, decrees, directives, guidelines, permits or permit
conditions, currently existing and as amended, enacted, issued or adopted in the
future which are or become applicable to Tenant, the Premises, the Building or
the Project. Tenant and Tenant's Parties shall comply with all Environmental
Laws and promptly notify Landlord of the violation of any Environmental Law or
presence of any Hazardous Materials, other than office and janitorial supplies
as permitted above, on the Premises. Upon twenty-four (24) hours prior notice,
Landlord shall have the right to enter upon and inspect the Premises and to
conduct tests, monitoring and investigations. If such tests indicate the
presence of any environmental condition which occurred during the Term of this
Lease and Tenant or Tenant's Parties caused or are likely to have caused, in
whole or in any material part, the presence of an environmental condition or a
release of Hazardous Materials on, under or about the Premises or the Project,
Tenant shall reimburse Landlord for the cost of conducting such tests. The
phrase "environmental condition" shall mean any adverse condition relating to
any Hazardous Materials or the environment, including surface water,
groundwater, drinking water supply, land, surface or subsurface strata or the
ambient air and includes air, land and water pollutants, noise, vibration, light
and odors. In the event of any such environmental condition, Tenant shall
promptly take any and all steps necessary to rectify the same to Landlord's
reasonable satisfaction or shall, at Landlord's election, reimburse Landlord,
upon demand, for the cost of Landlord of performing rectifying work. The
reimbursement shall be paid to Landlord in advance of Landlord's performing such
work, based upon Landlord's reasonable estimate of the cost thereof; and upon
completion of such work by Landlord, Tenant shall pay to Landlord any shortfall
within forty-five (45) days after Landlord bills Tenant therefore or Landlord
shall within thirty (30) days refund to Tenant any excess deposit, as the case
may be.
11.2 Indemnification. Tenant shall indemnify, protect, defend (by counsel
acceptable to Landlord) and hold harmless Landlord and its partners, directors,
officers, employees, shareholders, lenders, agents, contractors and each of
their respective successors and assigns (individually and collectively,
"Indemnitees") from and against any and all claims, judgments, causes of
action, damages, penalties, fines, taxes, costs, liabilities, losses and
expenses arising at any time during or after the Term as a result (directly or
indirectly) of or in connection with (a) Tenant and/or Tenant's Parties' breach
of any prohibition or provision of the preceding section, or (b) the presence
of Hazardous Materials on, under or about the Premises or other property as a
result (directly or indirectly) of Tenant's and/or Tenant's Parties'
activities, or failure to act, in connection with the Premises. This indemnity
shall include the cost of any required or necessary repair, cleanup or
detoxification, and the preparation and implementation of any closure,
monitoring or other required plans, whether such action is required or
necessary prior to or following the termination of this Lease. Neither the
written consent by Landlord to the presence of Hazardous Materials on, under or
about the Premises, nor the strict compliance by Tenant with all Environmental
Laws, shall excuse Tenant from Tenant's obligation of indemnification pursuant
hereto. Tenant's obligations pursuant to the foregoing indemnity shall survive
the termination of this Lease.
11.3 Landlord's Representation. Landlord hereby represents to Tenant
that, to the best of its current actual knowledge (but without any
investigation or inquiry or duty to do so), no Environmental Condition (as
defined in paragraph 11.1) presently exists as of the Effective Date on, under,
or about the Premises or the Project (a "Pre-existing Condition") except as
disclosed in the Phase I Environmental Site Assessment dated June 1993 and the
Phase II Environmental Site Assessment Report dated November 1993, as prepared
by Xxx X. Xxxxxx, Inc. and Dames & Xxxxx respectively, copies of which Tenant
acknowledges that it has received, reviewed, and approved.
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12. DAMAGE AND DESTRUCTION.
12.1 Casualty. If the Premises should be damaged or destroyed by fire or
other casualty, Tenant shall give immediate written notice to Landlord. Within
thirty (30) days after receipt thereof, Landlord shall notify Tenant whether
the necessary repairs can reasonably be made: (a) within ninety (90) days; (b)
in more than ninety (90) days but in less than one hundred eighty (180) days;
or (c) in more than one hundred eighty (180) days from the date of such notice.
12.1.1 Less Than 90 Days. If the Premises should be damaged only to
such extent that rebuilding or repairs can reasonably be completed within ninety
(90) days, this Lease shall not terminate and, provided that insurance proceeds
are available to fully repair the damage, Landlord shall repair the Premises,
except that Landlord shall not be required to rebuild, repair or replace any
alterations, partitions, fixtures, additions and other improvements
(collectively, "Improvements") which may have been placed in, on or about the
Premises by or for the benefit of Tenant. If Tenant is required to vacate all
or a portion of the Premises during Landlord's repair thereof, the Base Rent
payable hereunder shall be abated proportionately from the date Tenant vacates
all or a portion of the Premises and only during the period the Premises are
unfit for occupancy.
12.1.2 Greater Than 90 Days. If the Premises should be damaged only
to such extent that rebuilding or repairs can reasonably be completed in more
than ninety (90) days but in less than one hundred eighty (180) days, then
Landlord shall have the option of: (a) terminating the Lease effective upon the
occurrence of such damage, in which event the Rent shall be abated from the date
Tenant vacates the Premises; or (b) electing to repair the Premises, provided
insurance proceeds are available to fully repair the damage (except that
Landlord shall not be required to rebuild, repair or replace any part of the
Improvements which may have been placed in, on or about the Premises by or for
the benefit of Tenant). If Tenant is required to vacate all or a portion of the
Premises during Landlord's repair thereof, the Base Rent payable hereunder shall
be abated proportionately from the date Tenant vacates all or a portion of the
Premises and only during the period the Premises are unfit for occupancy. In
the event that Landlord should fail to substantially complete such repairs
within one hundred eighty (180) days after the date upon which Landlord is
notified by Tenant of the casualty (such period to be extended for delays caused
by Tenant or because of any items of Force Majeure, as hereinafter defined) and
Tenant has not re-occupied the Premises, Tenant shall have the right, as
Tenant's exclusive remedy, within ten (10) days after the expiration of such one
hundred eighty (180) day period, to terminate this Lease by delivering written
notice to Landlord as Tenant's exclusive remedy, whereupon all rights hereunder
shall cease and terminate thirty (30) days after Landlord's receipt of such
notice.
12.1.3 Greater Than 180 Days. If the Premises should be so damaged
that rebuilding or repairs cannot be completed within one hundred eighty (180)
days, either Landlord or Tenant may terminate this Lease by giving written
notice within ten (10) days after notice from Landlord specifying such time
period of repair; and this Lease shall terminate and the Rent shall be abated
from the date Tenant vacates the Premises. In the event that neither party
elects to terminate this Lease, Landlord shall promptly commence and diligently
prosecute to completion the repairs to the Premises, provided insurance proceeds
are available to repair the damage (except that Landlord shall not be required
to rebuild, repair or replace any improvements which may have been placed in, on
or about the Premises by or for the benefit of Tenant). If Tenant is required
to vacate all or a portion of the Premises during Landlord's repair thereof, the
Base Rent payable hereunder shall be abated proportionately from the date Tenant
vacates all or a portion of the Premises and only during the period that the
Premises are unfit for occupancy.
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12.2 Tenant's Fault. If the Premises or any portion of the Premises is
damaged resulting from the negligence or breach of this Lease by Tenant or any
of Tenant's Parties, Rent shall not be reduced during the repair of such damage
and Tenant shall be liable to Landlord for the cost of the repair caused
thereby to the extent such cost is not covered by insurance proceeds.
12.3 Uninsured Casualty. In the event that the Premises or any portion of
the Premises is damaged to the extent Tenant is unable to use the Premises and
such damage is not covered by insurance proceeds received by Landlord or in the
event that the holder of any indebtedness secured by the Premises requires that
the insurance proceeds be applied to such indebtedness, then Landlord shall
have the right at Landlord's option either (i) to repair such damage as soon as
reasonably possible at Landlord's expense, or (ii) to give written notice to
Tenant within thirty (30) days after the date of the occurrence of such damage
of Landlord's intention to terminate this Lease as of the date of the
occurrence of such damage. In the event Landlord elects to terminate this
Lease, Tenant shall have the right within ten (10) days after receipt of such
notice to give written notice to Landlord of Tenant's intention to pay the cost
of repair of such damage, in which event this Lease shall continue in full
force and effect, Landlord shall make such repairs as soon as reasonably
possible and Tenant shall reimburse Landlord for such repairs within fifteen
(15) days after receipt of an invoice from Landlord. If Tenant does not give
such notice within the ten (10) day period, this Lease shall terminate
automatically as of the date of the occurrence of the damage.
12.4 Waiver. With respect to any damage or destruction which Landlord is
obligated to repair or may elect to repair, Tenant waives all rights to
terminate this Lease pursuant to rights otherwise presently or hereafter
accorded by law.
13. EMINENT DOMAIN.
13.1 Total Condemnation. If all of the Premises is condemned by eminent
domain, inversely condemned or sold under threat of condemnation for any public
or quasi-public use or purpose ("Condemned"), this Lease shall terminate as of
the earlier of the date the condemning authority takes title to or possession
of the Premises, and Rent shall be adjusted to the date of termination.
13.2 Partial Condemnation. If any portion of the Premises is Condemned
and such partial condemnation materially impairs Tenant's ability to use the
Premises for Tenant's business as reasonably determined by Landlord, either
Landlord or Tenant shall have the option of terminating this Lease as of the
earlier of the date title vests in the condemning authority or as of the date
an order of immediate possession is issued and Rent shall be adjusted and/or
abated to the date of termination. If such partial condemnation does not
materially impair Tenant's ability to use the Premises for the business of
Tenant, Landlord shall promptly restore the Premises to the extent of any
condemnation proceeds recovered by Landlord, excluding the portion thereof lost
in such condemnation, and this Lease shall continue in full force and effect
except that after the date of such title vesting Rent shall be adjusted and/or
abated as reasonably determined by Landlord.
13.3 Award. If the Premises are wholly or partially Condemned, Landlord
shall be entitled to the entire award paid for such condemnation, and Tenant
waives any claim to any part of the award from Landlord or the condemning
authority; provided, however, Tenant shall have the right to recover from the
condemning authority such compensation as may be separately awarded to Tenant
in connection with costs in removing Tenant's merchandise, furniture, fixtures,
leasehold improvements and equipment to a new location. No condemnation of any
kind shall be construed to constitute an actual or constructive eviction of
Tenant or a breach of any express or implied covenant of quiet enjoyment.
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13.4 Temporary Condemnation. In the event of a temporary condemnation not
extending beyond the Term, this Lease shall remain in effect, Tenant shall
continue to pay Rent and Tenant shall receive any award made for such
condemnation except damages to any of Landlord's property. If a temporary
condemnation is for a period which extends beyond the Term, this Lease shall
terminate as of the date of initial occupancy by the condemning authority and
any such award shall be distributed in accordance with the preceding section.
If a temporary condemnation remains in effect at the expiration or earlier
termination of this Lease, Tenant shall pay Landlord the reasonable cost of
performing any obligations required of Tenant with respect to the surrender of
the Premises.
14. DEFAULT.
14.1 Events of Defaults. The occurrence of any of the following events
shall, at Landlord's option, constitute an "Event of Default":
14.1.1 Vacation or abandonment of the Premises without payment of Rent
for a period of thirty (30) consecutive days;
14.1.2 Failure to pay Rent on the date when due and the failure
continuing for a period of five (5) days after such payment is due;
14.1.3 Failure to perform Tenant's covenants and obligations hereunder
(except default in the payment of Rent) where such failure continues for a
period of thirty (30) days after written notice from Landlord; provided,
however, if the nature of the default is such that more than thirty (30) days
are reasonably required for its cure, Tenant shall not be deemed to be in
default if Tenant commences the cure within the thirty (30) day period and
diligently prosecutes such cure to completion;
14.1.4 The making of a general assignment by Tenant for the benefit of
creditors; the filing of a voluntary petition by Tenant or the filing of an
involuntary petition by any of Tenant's creditors seeking the rehabilitation,
liquidation or reorganization of Tenant under any law relating to bankruptcy,
insolvency or other relief of debtors and, in the case of an involuntary action,
the failure to remove or discharge the same within sixty (60) days of such
filing; the appointment of a receiver or other custodian to take possession of
substantially all of Tenant's assets or this leasehold; Tenant's insolvency or
inability to pay Tenant's debts or failure generally to pay Tenant's debts when
due; any court entering a decree or order directing the winding up or
liquidation of Tenant or of substantially all of Tenant's assets; Tenant taking
any action toward the dissolution or winding up of Tenant's affairs; the
cessation or suspension of Tenant's use of the Premises; or the attachment,
execution or other judicial seizure of substantially all of Tenant's assets or
this leasehold;
14.1.5 The making of any material misrepresentation or omission by
Tenant or any successor in interest of Tenant in any materials delivered by or
on behalf of Tenant to Landlord or Landlord's lender pursuant to this Lease; or
14.2 Remedies.
14.2.1 Termination. In the event of the occurrence of any Event of
Default, Landlord shall have the right to give a written termination notice to
Tenant and, on the date specified in such notice, this Lease shall terminate
unless on or before such date all arrears of Rent and all other sums payable by
Tenant under this Lease and all costs and expenses incurred by or on behalf of
Landlord hereunder shall have been paid by Tenant and all other Events of
Default at the time existing shall have been fully remedied to the satisfaction
of Landlord.
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14.2.1.1 Repossession. Following termination, without prejudice
to other remedies Landlord may have, Landlord may (i) peaceably re-enter the
Premises in accordance with applicable laws upon voluntary surrender by Tenant
or remove Tenant therefrom and any other persons occupying the Premises, using
such legal proceedings as may be available; (ii) repossess the Premises in
accordance with applicable laws or relet the Premises or any part thereof for
such term (which may be for a term extending beyond the Term), at such rental
and upon such other terms and conditions as Landlord in Landlord's sole but
reasonable discretion shall determine, with the right to make reasonable
alterations and repairs to the Premises; and (iii) remove all personal property
therefrom.
14.2.1.2 Unpaid Rent. Landlord shall have all the rights and
remedies of a landlord provided by applicable law, including the right to
recover from Tenant: (a) the worth, at the time of award, of the unpaid Rent
that had been earned at the time of termination, (b) the worth, at the time of
award, of the amount by which the unpaid Rent that would have been earned after
the date of termination until the time of award exceeds the amount of loss of
rent that Tenant proves could have been reasonably avoided, (c) the worth, at
the time of award, of the amount by which the unpaid Rent for the balance of the
Term after the time of award exceeds the amount of the loss of rent that Tenant
proves could have been reasonably avoided, and (d) any other amount, and court
costs, necessary to compensate Landlord for all detriment proximately caused by
Tenant's default. The phrase "worth, at the time of award," as used in (a) and
(b) above, shall be computed at the Applicable Interest Rate, and as used in (c)
above, shall be computed by discounting such amount at the discount rate of the
Federal Reserve Bank of San Francisco at the time of award plus one percent
(1%).
14.2.2 Continuation. Even though an Event of Default may have
occurred, this Lease shall continue in effect for so long as Landlord does not
terminate Tenant's right to possession; and Landlord may enforce all of
Landlord's rights and remedies under this Lease, including the right to recover
Rent as it becomes due. Landlord, without terminating this Lease, may, during
the period Tenant is in default, enter the Premises in accordance with legal
procedures and relet the same, or any portion thereof, to third parties for
Tenant's account and Tenant shall be liable to Landlord for all costs Landlord
incurs in reletting the Premises, including, without limitation, brokers'
commissions, expenses of remodeling the Premises to the extent not recovered
from reletting and reasonable like costs. Reletting may be for a period shorter
or longer than the remaining Term. Tenant shall continue to pay the Rent on the
date the same is due. No act by Landlord hereunder, including acts of
maintenance, preservation or efforts to lease the Premises or the appointment of
a receiver upon application of Landlord to protect Landlord's interest under
this Lease, shall terminate this Lease unless Landlord notifies Tenant that
Landlord elects to terminate this Lease. In the event that Landlord elects to
relet the Premises, the rent that Landlord receives from reletting shall be
applied to the payment of, first, any indebtedness from Tenant to Landlord other
than Base Rent and Real Property Taxes; second, all costs, including
maintenance, incurred by Landlord in reletting; and, third, Base Rent and Real
Property Taxes under this Lease. After deducting the payments referred to
above, any sum remaining from the rental Landlord receives from reletting shall
be held by Landlord and applied in payment of future Rent as Rent becomes due
under this Lease. In no event, and notwithstanding anything in Section 15 to
the contrary, shall Tenant be entitled to any excess rent received by Landlord.
If, on the date Rent is due under this Lease, the rent received from the
reletting is less than the Rent due on that date, Tenant shall pay to Landlord,
in addition to the remaining Rent due, all costs, including maintenance, which
Landlord incurred in reletting the Premises that remain after applying the rent
received from reletting as provided hereinabove. So long as this Lease is not
terminated, Landlord shall have the right to remedy any default of Tenant, to
maintain or improve the Premises, to cause a receiver to be appointed to
administer the Premises and new or existing subleases and to add to the Rent
payable hereunder all of Landlord's reasonable costs in so doing, with interest
at the Applicable Interest Rate from the date of such expenditure.
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14.3 Cumulative. Each right and remedy of Landlord provided for herein or
now or hereafter existing at law, in equity, by statute or otherwise shall be
cumulative and shall not preclude Landlord from exercising any other rights or
remedies provided for in this Lease or now or hereafter existing at law or in
equity, by statute or otherwise. No payment by Tenant of a lesser amount than
the Rent nor any endorsement on any check or letter accompanying any check or
payment as Rent shall be deemed an accord and satisfaction of full payment of
Rent; and Landlord may accept such payment without prejudice to Landlord's
right to recover the balance of such Rent or to pursue other remedies.
15. ASSIGNMENT AND SUBLETTING. Tenant shall not assign, sublet or otherwise
transfer, whether voluntarily or involuntarily or by operation of law, the
Premises or any part thereof without Landlord's prior written approval, which
shall not be unreasonably withheld. The merger of Tenant with any other entity
or the transfer of any controlling or managing ownership or beneficial interest
in Tenant, or the assignment of a substantial portion of the assets of Tenant,
whether or not located at the Premises, shall constitute an assignment
hereunder. If Tenant desires to assign this Lease or sublet any or all of the
Premises, Tenant shall give Landlord written notice thereof with copies of all
related documents and agreements associated with the assignment or sublease,
including without limitation, the financial statements of any proposed assignee
or subtenant, forty-five (45) days prior to the anticipated effective date of
the assignment or sublease. Tenant shall pay Landlord's reasonable attorneys'
fees incurred in the review of such documentation plus an administrative fee of
Three Hundred Fifty Dollars ($350.00) for each proposed transfer. Landlord
shall have a period of thirty (30) days following receipt of such notice and
all related documents and agreements to notify Tenant in writing of Landlord's
approval or disapproval of the proposed assignment or sublease. If Landlord
fails to notify Tenant in writing of such election, Landlord shall be deemed to
have disapproved such assignment or subletting. This Lease may not be assigned
by operation of law. Any purported assignment or subletting contrary to the
provisions hereof shall be void and shall constitute an Event of Default
hereunder. If Tenant receives rent or other consideration for any such
transfer in excess of the Rent, or in case of the sublease of a portion of the
Premises, in excess of such Rent that is fairly allocable to such portion,
after appropriate adjustments to assure that all other payments required
hereunder are appropriately taken into account, Tenant shall pay Landlord fifty
percent (50%) of the difference between each such payment of rent or other
consideration and the Rent required hereunder. Landlord may, without waiving
any rights or remedies, collect rent from the assignee, subtenant or occupant
and apply the net amount collected to the Rent herein reserved and apportion
any excess rent so collected in accordance with the terms of the preceding
sentence. Tenant shall continue to be liable as a principal and not as a
guarantor or surety to the same extent as though no assignment or subletting
had been made. Landlord may consent to subsequent assignments or subletting of
this Lease or amendments or modifications to the Lease by assignees of Tenant
without notifying Tenant or any successor of Tenant and without obtaining their
consent. No permitted transfer shall be effective until there has been
delivered to Landlord a counterpart of the transfer instrument in which the
transferee agrees to be and remain jointly and severally liable with Tenant for
the payment of Rent pertaining to the Premises and for the performance of all
the terms and provisions of this Lease relating thereto arising on or after the
date of the transfer.
16. ESTOPPEL, ATTORNMENT AND SUBORDINATION.
16.1 Estoppel. Within ten (10) days after request by Landlord, Tenant
shall deliver an estoppel certificate duly executed (and acknowledged if
required by any lender), in the form attached hereto as Exhibit G, or in such
other form as may be acceptable to the lender and Tenant, which form may
include some or all of the provisions contained in Exhibit G, to any proposed
mortgagee, purchaser or Landlord. Tenant's failure to deliver said statement
in such time period shall be an Event of Default hereunder and shall be
conclusive upon Tenant that (a) this Lease is in full force and effect, without
modification except as may be represented by
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Landlord; (b) there are no uncured defaults in Landlord's performance and Tenant
has no right of offset, counterclaim or deduction against Rent hereunder, and
(c) no more than one month's Base Rent has been paid in advance. If any
financier should require that this Lease be amended (other than in the
description of the Premises, the Term, the Permitted Use, the Rent or as will
substantially, materially and adversely affect the rights of Tenant), Landlord
shall give written notice thereof to Tenant, which notice shall be accompanied
by a Lease supplement embodying such amendments. Tenant shall, within ten (10)
days after the receipt of Landlord's notice, execute and deliver to Landlord the
tendered Lease supplement.
16.2 Subordination. This Lease shall be subject and subordinate to all
ground leases and the lien of all mortgages and deeds of trust which now or
hereafter affect the Premises or the Project or Landlord's interest therein,
and all amendments thereto, all without the necessity of Tenant's executing
further instruments to effect such subordination provided that Tenant receives
a non-disturbance agreement in a form reasonably acceptable to Tenant. If
requested, Tenant shall execute and deliver to Landlord within ten (10) days
after Landlord's request whatever documentation that may reasonably be required
to further effect the provisions of this paragraph.
16.3 Attornment. In the event of a foreclosure proceeding, the exercise
of the power of sale under any mortgage or deed of trust or the termination of
a ground lease, Tenant shall, if requested, attorn to the purchaser thereupon
and recognize such purchaser as Landlord under this Lease; provided, however,
Tenant's obligation to attorn to such purchaser shall be conditioned upon
Tenant's receipt of a non-disturbance agreement in a form reasonably acceptable
to Tenant.
17. MISCELLANEOUS.
17.1 General.
17.1.1 Entire Agreement. This Lease sets forth all the agreements
between Landlord and Tenant concerning the Premises; and there are no agreements
either oral or written other than as set forth herein.
17.1.2 Time of Essence. Time is of the essence of this Lease.
17.1.3 Attorneys' Fees. In any action or proceeding which either
party brings against the other to enforce its rights hereunder, the unsuccessful
party shall pay all costs incurred by the prevailing party, including reasonable
attorneys' fees, which amounts shall be a part of the judgment in said action or
proceeding.
17.1.4 Severability. If any provision of this Lease or the
application of any such provision shall be held by a court of competent
jurisdiction to be invalid, void or unenforceable to any extent, the remaining
provisions of this Lease and the application thereof shall remain in full force
and effect and shall not be affected, impaired or invalidated.
17.1.5 Law. This Lease shall be construed and enforced in accordance
with the laws of the state in which the Premises are located.
17.1.6 No Option. Submission of this Lease to Tenant for examination
or negotiation does not constitute an option to lease, offer to lease or a
reservation of, or option for, the Premises; and this document shall become
effective and binding only upon the execution and delivery hereof by Landlord
and Tenant.
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17.1.7 Successors and Assigns. This Lease shall be binding upon and
inure to the benefit of the successors and assigns of Landlord and, subject to
compliance with the terms of Section 15, Tenant.
17.1.8 Third Party Beneficiaries. Nothing herein is intended to
create any third party benefit.
17.1.9 Memorandum of Lease. Tenant shall not record this Lease or a
short form memorandum hereof without Landlord's prior written consent.
17.1.10 Agency, Partnership or Joint Venture. Nothing contained
herein nor any acts of the parties hereto shall be deemed or construed by the
parties hereto, nor by any third party, as creating the relationship of
principal and agent or of partnership or of joint venture by the parties hereto
or any relationship other than the relationship of landlord and tenant.
17.1.11 Merger. The voluntary or other surrender of this Lease by
Tenant or a mutual cancellation thereof or a termination by Landlord shall not
work a merger and shall, at the option of Landlord, terminate all or any
existing subtenancies or may, at the option of Landlord, operate as an
assignment to Landlord of any or all of such subtenancies.
17.1.12 Headings. Section headings have been inserted solely as a
matter of convenience and are not intended to define or limit the scope of any
of the provisions contained therein.
17.2 Signs. All signs and graphics of every kind visible in or from
public view or the exterior of the Premises shall be subject to Landlord's
prior written approval and shall be subject to any applicable governmental
laws, ordinances, and regulations and in compliance with Landlord's signage
program. Tenant shall remove all such signs and graphics prior to the
termination of this Lease. Such installations and removals shall be made in
such manner as to avoid injury or defacement of the Premises; and Tenant shall
repair any injury or defacement, including without limitation, discoloration
caused by such installation or removal.
17.3 Waiver. No waiver of any default or breach hereunder shall be
implied from any omission to take action on account thereof, notwithstanding
any custom and practice or course of dealing. No waiver by either party of any
provision under this Lease shall be effective unless in writing and signed by
such party. No waiver shall affect any default other than the default
specified in the waiver and then such waiver shall be operative only for the
time and to the extent therein stated. Waivers of any covenant shall not be
construed as a waiver of any subsequent breach of the same.
17.4 Financial Statements. Tenant shall provide to any lender, purchaser
or Landlord, within ten (10) days after request, a current, accurate, certified
financial statement for Tenant and Tenant's business prepared under generally
accepted accounting principles consistently applied and such other certified
financial information or tax returns as may be reasonably required by Landlord,
purchaser or any lender of either, provided, however, that Tenant may require
as a condition to providing such financial statements a reasonable agreement by
such lender, purchaser, or Landlord that it will treat and hold the financial
statements as confidential (except as may be necessary to comply with
applicable law) for their own internal use for legitimate purposes directly
related to the ownership of financing of the Building or Project.
17.5 Limitation of Liability. The obligations of Landlord under this
Lease are not personal obligations of the individual partners, directors,
officers, shareholders, agents or employees of Landlord; and Tenant shall look
solely to the Premises for satisfaction of any liability of Landlord and shall
not look to other assets of Landlord nor seek recourse against the
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assets of the individual partners, directors, officers, shareholders, agents or
employees of Landlord. Whenever Landlord transfers its interest, Landlord shall
be automatically released from further performance under this Lease and from all
further liabilities and expenses hereunder and the transferee of Landlord's
interest shall assume all liabilities and obligations of Landlord hereunder from
the date of such transfer.
17.6 Notices. All notices to be given hereunder shall be in writing and
mailed postage prepaid by certified or registered mail, return receipt
requested, or delivered by personal or courier delivery, or sent by facsimile
(immediately followed by one of the preceding methods), to Landlord's Address
and Tenant's Address, or to such other place as Landlord or Tenant may
designate in a written notice given to the other party. Notices shall be
deemed served upon the earlier of receipt or three (3) days after the date of
mailing.
17.7 Brokerage Commission. Landlord shall pay a brokerage commission to
Broker in accordance with a separate agreement between Landlord and Broker.
Tenant warrants that Tenant's sole contact with Landlord or with the Premises
in connection with this transaction has been directly with Landlord and Broker
and that no other broker or finder can properly claim a right to a commission
or a finder's fee based upon contacts between the claimant and Tenant. Tenant
agrees to indemnify and hold Landlord harmless from any claims or liability,
including reasonable attorneys' fees, in connection with a claim by any person
for a real estate broker's commission, finder's fee or other compensation based
upon any statement, representation or agreement of Tenant, and Landlord agrees
to indemnify and hold Tenant harmless from any such claims or liability,
including reasonable attorneys' fees, based upon any statement, representation
or agreement of Landlord. Landlord similarity warrants that it has not used
any other broker, real estate agent, or finder except as set forth in the Basic
Lease Information.
17.8 Authorization. Each individual executing this Lease on behalf of
Tenant represents and warrants that he or she is duly authorized to execute and
deliver this Lease on behalf of Tenant and that such execution is binding upon
Tenant.
17.9 Holding Over; Surrender.
17.9.1 Holding Over. If Tenant holds over the Premises or any part
thereof after expiration of the Term, such holding over shall constitute a
month-to-month tenancy, at a rent equal to one hundred fifty percent (150%) of
the Base Rent in effect immediately prior to such holding over and shall
otherwise be on all the other terms and conditions of this Lease. This
paragraph shall not be construed as Landlord's permission for Tenant to hold
over. Acceptance of Rent by Landlord following expiration or termination shall
not constitute a renewal of this Lease or extension of the Term except as
specifically set forth above. If Tenant fails to surrender the Premises upon
expiration or earlier termination of this Lease, Tenant shall indemnify and hold
Landlord harmless from and against all loss or liability resulting from or
arising out of Tenant's failure to surrender the Premises, including, but not
limited to, any amounts required to be paid to any tenant or prospective tenant
who was to have occupied the Premises after the expiration or earlier
termination of this Lease and any related attorneys' fees and brokerage
commissions.
17.9.2 Surrender. Upon the termination of this Lease or Tenant's
right to possession of the Premises, Tenant will surrender the Premises,
together with all keys, in good condition and repair, reasonable wear and tear
excepted. Conditions existing because of Tenant's failure to perform
maintenance, repairs or replacements shall not be deemed "reasonable wear and
tear."
17.10 Joint and Several. If Tenant consists of more than one person, the
obligation of all such persons shall be joint and several.
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17.11 Covenants and Conditions. Each provision to be performed by Tenant
hereunder shall be deemed to be both a covenant and a condition.
17.12 Addenda. The Addenda attached hereto, if any, and identified with
this Lease are incorporated herein by this reference as if fully set forth
herein.
IN WITNESS WHEREOF, the parties have executed this Lease as of the date set
forth above.
"Landlord" "Tenant"
CATELLUS DEVELOPMENT CORPORATION, XXXXXXXX MICRO SCIENCE, INC.,
a Delaware corporation a Delaware corporation
By: [illegible] By: /s/ [Xxxxx X. Xxxxx]
-------------------------- --------------------------
Its: Vice President Its: V.P. Operations
---------------------- --------------------------
Date: 3/3/97 Date: 2/15/97
-------------------------- --------------------------
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ADDENDUM TO LEASE
THIS ADDENDUM TO LEASE ("Addendum") is attached to and constitutes an
integral part of the Lease between CATELLUS DEVELOPMENT CORPORATION, as
Landlord, and XXXXXXXX MICRO SCIENCE, INC., as Tenant. The terms of this
Addendum shall be incorporated in the Lease for all purposes. In the event of
a conflict between the provisions of the Lease and the provisions of this
Addendum, this Addendum shall control.
ADDITION TO SECTION 9.1 - TRADE FIXTURES; ALTERATIONS. THE FOLLOWING IS HEREBY
ADDED TO THE END OF SECTION 9.1:
Notwithstanding the foregoing, Tenant shall have the right, without
Landlord's consent, to make alterations to the Premises, provided such
alteration does not include penetration of the roof, which, for any single
proposed project (or any series of related projects), does not cost more
than Ten Thousand Dollars ($10,000.00) in the aggregate; provided, that
Tenant shall provide Landlord with fifteen (15) days prior written notice
of the commencement of any such alteration and shall furnish to Landlord a
copy of Tenant's proposed plans for such alteration. Upon expiration of
earlier termination of this Lease, Tenant shall, subject to the provisions
of Section 9 of the Lease, remove all alterations made by Tenant and
restore the Premises to the condition existing prior to construction of
the alterations. In addition, Tenant may install and operate in and upon
the Premises such trade fixtures, equipment, and machinery and appliances
as it shall consider necessary for the conduct of its business without the
requirement of Landlord's prior consent, and shall retain ownership of
such items, and shall remove such items at Tenant's expense, upon the
expiration or the termination of this Lease.
THE FOLLOWING NEW SECTIONS ARE HEREBY ADDED TO THE LEASE WHICH STATE IN THEIR
ENTIRETY AS FOLLOWS:
18. Force Majeure Event. For purposes of this Lease, the term "Force Majeure
Event" shall mean and include the following: any delay caused by any action,
inaction, order, ruling, moratorium, regulation, statute, condition or other
decision of any governmental agency having jurisdiction over any portion of the
Project, over the construction anticipated to occur thereon or over any uses
thereof, or by fire, flood, inclement weather, strikes, lockouts or other labor
or industrial disturbance (whether or not on the part of agents or employees of
either party hereto engaged in the construction of the Premises), civil
disturbance, order of any government, court or regulatory body claiming
jurisdiction or otherwise, act of public enemy, war, riot, sabotage, blockade,
embargo, failure or inability to secure materials, supplies or labor through
ordinary sources by reason of shortages or priority, discovery of hazardous or
toxic materials, earthquake, or other natural disaster, or any cause whatsoever
beyond the reasonable control (excluding financial inability) of the party
whose performance is required, or any of its contractors or other
representatives, whether or not similar to any of the causes hereinabove
stated.
19. Condition of Premises.
19.1 Tenant has determined that the Premises are acceptable for Tenant's
use and Tenant acknowledges that neither Landlord nor any broker or agent has
made any representations or
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warranties in connection with the physical condition of the Premises or their
fitness for Tenant's use upon which Tenant has relied directly or indirectly for
any purpose.
19.2 Tenant acknowledges that Tenant has inspected the Premises and that
Tenant accepts the Premises in an "AS-IS" condition. Any tenant improvements
which Tenant requires in and to t he Premises shall be provided by Tenant, at
Tenant's sole expense; provided, however, all tenant improvements shall be
subject to Landlord's prior written approval and shall comply with the
provisions of Section 9.
20. Free Rent Period. Tenant's obligation to pay Base Rent shall be
conditionally abated during months two (2) and four (4) of the Term ("Free Rent
Period"). Such abatement shall apply to Base Rent only and shall not apply to
any other sums payable under this Lease. The abatement of Base Rent described
above is expressly conditioned on Tenant's performance of its obligations under
the Lease throughout the Term; and the amount of the abated Base Rent is based
in part on the amount of Base Rent due under the Lease for the full Term. If
Tenant defaults under the Lease and such default results in a termination of
the Lease prior to the expiration of the Term, then Tenant shall pay to
Landlord on the date of such termination, in addition to all other amounts and
damages to which Landlord is entitled, the amount of Base Rent which would
otherwise have been due and payable during the Free Rent Period.
21. Scheduled Base Rent Increase. Effective as of the first (1st) day of the
thirty-first (31st) month of the Term, the monthly Base Rent shall
automatically and without prior notice be increased to the amount of Fifteen
Thousand Four Hundred Dollars ($15,400.00).
22. Cancellation of Previous Lease; Transfer of Security Deposit.
22.1 This Lease supersedes and terminates, effective as of the
Commencement Date (the "Termination Date"), that certain SFLI Term Lease Land
and Improvements, Contract No. CTDC-3757, dated June 17, 1986, (together with
all amendments thereto, the "Original Lease"), by and between Landlord, as
landlord, and Tenant, as tenant. The termination of the Original Lease shall
not release Tenant from any liability or obligation under the Original Lease,
whether of indemnity or otherwise, resulting from any acts, omissions or events
occurring prior to the Termination Date, or any obligation which must
necessarily be performed after the Termination Date. Such obligations, to be
performed after the Termination Date, include, without limitation, Tenant's
obligations to remove improvements and alterations to the Premises installed by
Tenant, as set forth in Article 17 of the Original Lease and the amendments
thereto dated as of April 7, 1989, October 31, 1991, and January 16, 1992.
Nothing herein contained shall constitute a waiver by Landlord of any default
of Tenant now existing or which may arise prior to the Termination Date under
or in connection with the Original Lease, or prevent Landlord from exercising
any of its lawful remedies with respect thereto under the Original Lease or
according to law.
22.2 The security deposit held by Landlord under the Original Lease shall
be credited toward the Security Deposit required to be deposited by Tenant
pursuant to Section 3.3 of this Lease.
23. Noise From Train Operation. Lessee hereby recognizes and acknowledges that
the Premises is adjacent to the tracks of the Los Angeles Junction Railway
Company (hereinafter called "Railway") and that the operation of trains over
said tracks does and will produce vibrations and noise levels which may be
considered objectionable by the employees, agents, tenants or invitees of
Lessee. Therefore, Lessee agrees that no legal action or complaint of any kind
whatsoever shall be instituted against Lessor or Railway on Lessee's behalf as
a result of such vibrations or noise levels and to indemnify and save Lessor
and/or Railway harmless from
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and against any loss, damage, liability or expense either might incur as a
result of such action being taken by Lessee's employees, agents, tenants or
invitees.
24. Quiet Enjoyment. Lessor hereby covenants and agrees that Lessee, its
successors and assigns, upon paying the rents and performing and fulfilling the
conditions and provisions herein upon Lessee's part to be paid or fulfilled,
shall and may peaceably and quietly hold, occupy and enjoy the Premises during
the term of this Lease from any hindrance or molestation by Lessor, or any
person or persons claiming through or under Lessor.
25. Track Clearance. Lessee shall at all times keep a space of SIX (6) feet
from the nearest rail of any railroad track entirely clear of structures,
material and obstructions of every sort and shall observe an overhead clearance
of not less than twenty-five (25) feet above the top of rail. Notwithstanding
the foregoing, Lessee may erect landing platforms which shall not be higher
than FOUR (4) feet above the top of the rails and which at no point shall be
nearer than FIVE (5) feet from the nearest rail of such track; provided,
however, if by statute or order of competent public authority greater
clearances are required, Lessee shall comply with such statute or order. In
case of a breach of these obligations, or any of them, Lessee agrees to defend
and indemnify Lessor and the Los Angeles Junction Railway Company against all
liability for loss, damage, injury and death arising therefrom whether or not
contributed to by the negligence of the Lessor or said Railway Company.
LANDLORD'S INITIALS ____ TENANT'S INITIALS _____
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EXHIBIT A
[Survey]
1
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EXHIBIT B
WORK LETTER
(Not Applicable to Lease)
28
EXHIBIT C
COMMENCEMENT DATE MEMORANDUM
(Not Applicable to Lease)
29
EXHIBIT D
[Sample Insurance Form]
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EXHIBIT E
PROHIBITED USES
The following types of operations and activities are expressly prohibited on
the Premises:
1. automobile/truck maintenance, repair or fueling;
2. battery manufacturing or reclamation;
3. ceramics and jewelry manufacturing or finishing;
4. chemical (organic or inorganic) storage, use or manufacturing
except Ethylene Oxide for permitted uses;
5. drum recycling;
6. dry cleaning;
7. electronic components manufacturing;
8. electroplating and metal finishing;
9. explosives manufacturing, use or storage;
10. hazardous waste treatment, storage, or disposal;
11. leather production, tanning or finishing;
12. machinery and tool manufacturing;
13. medical equipment manufacturing and hospitals;
14. metal shredding, recycling or reclamation;
15. metal smelting and refining;
16. mining;
17. paint, pigment and coating operations;
18. petroleum refining;
19. plastic and synthetic materials manufacturing;
20. solvent reclamation;
21. tire and rubber manufacturing;
22. above - and/or underground storage tanks; and
23. residential use or occupancy.
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EXHIBIT F
RULES AND REGULATIONS
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EXHIBIT G
TENANT ESTOPPEL CERTIFICATE
To: Bank of America National Trust
and Savings Association ("Bank")
Real Estate Industries Division No.__________
_____________________________________
_____________________________________
Attn: _______________________________
Re: Lease Dated: _________________________
Current Landlord: _________________________
Current Tenant: _________________________
Square Feet: Approximately ___________
Floor(s): _________________________
Located at: _________________________
_________________ ("Tenant") hereby certifies that as of __________ , 199_:
1. Tenant is the present owner and holder of the tenant's interest under
the lease described above, as it may be amended to date (the "Lease") with ____
as Landlord (who is called "Borrower" for the purposes of this Certificate).
(USE THE NEXT SENTENCE IF THE LANDLORD OR TENANT NAMED IN THE LEASE IS A
PREDECESSOR TO THE CURRENT LANDLORD OR TENANT.) [The original landlord under
the Lease was ______, and the original tenant under the Lease was _____.] The
Lease covers the premises commonly known as _____ (the "Premises") in the
building (the "Building") at the address set forth above.
(CHOOSE ONE OF THE FOLLOWING SECTION 2(a)s BELOW)
[2. (a) A true, correct and complete copy of the Lease (including all
modifications, amendments, supplements, side letters, addenda and riders of and
to it) is attached to this Certificate as Exhibit A.]
[2. (a) The attached Exhibit A accurately identifies the Lease and all
modifications, amendments, supplements, side letters, addenda and riders of and
to it.]
(b) (IF APPLICABLE) [The Lease provides that in addition to the
Premises, Tenant has the right to use or rent _____ [assigned/unassigned]
parking spaces near the Building or in the garage portion of the building
during the term of the Lease.]
(c) The term of the Lease commenced on _____, 199__ and will expire on
_____, _____, including any presently exercised option or renewal term. (CHOOSE
ONE OF THE FOLLOWING TWO SENTENCES.) [Tenant has no option or right to renew,
extend or cancel the Lease, or to lease additional space in the Premises or
Building, or to use any parking (IF APPLICABLE) [other than that specified in
Section 2(b) above].] [Except as specified in Paragraph(s) ____ of the Lease
(copy attached), Tenant has no option or right to renew, extend or cancel the
Lease, or to lease additional space in the Premises or
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Building, or to use any parking (IF APPLICABLE) [other than that specified in
Section 2(b) above].]
(CHOOSE ONE OF THE FOLLOWING SECTION 2(d)s)
[(d) Tenant has no option or preferential right to purchase all or any
part of the Premises (or the land of which the Premises are a part). Tenant has
no right or interest with respect to the Premises or the Building other than as
Tenant under the Lease.]
[(d) Except as specified in Paragraph(s) ____ of the Lease (copy
attached), Tenant has no option or preferential right to purchase all or any
part of the Premises (or the land of which the Premises are a part). Except
for the foregoing, Tenant has no right or interest with respect to the Premises
or the Building other than as Tenant under the Lease.]
(e) The annual minimum rent currently payable under the Lease is $____
and such rent has been paid through ____, 199__. (IF APPLICABLE). [The annual
percentage rent currently payable under the Lease is at the rate of ____ and
such rent has been paid through ____, 199__.]
(f) (IF APPLICABLE) [Additional rent is payable under the Lease for
(i) operating, maintenance or repair expenses, (ii) property taxes, (iii)
consumer price index cost of living adjustment, or (iv) percentage of gross
sales adjustments (i.e., adjustments made based on underpayments of percentage
rent). Such additional rent has been paid in accordance with Borrower's rendered
bills through ____199__. The base year amounts for additional rental items are
as follows: (1) operating, maintenance or repair expenses $____, (2) property
taxes $____, and (3) consumer price index ____ (please indicate base year CPI
level).]
(g) Tenant has made no agreement with Borrower or any agent,
representative or employee of Borrower concerning free rent, partial rent,
rebate of rental payments or any other similar rent concession (IF APPLICABLE)
[except as expressly set forth in Paragraph(s) ____ of the Lease (copy
attached)].
(h) Borrower currently holds a security deposit in the amount of $____
which is to be applied by Borrower or returned to Tenant in accordance with
paragraph(s) ____ of the Lease. Tenant acknowledges and agrees that Bank shall
have no responsibility or liability for any security deposit, except to the
extent that any security deposit shall have been actually received by Bank.
3. (a) The Lease constitutes the entire agreement between Tenant and
Borrower with respect to the Premises, has not been modified changed, altered
or amended and is in full force and effect in the form (CHOOSE ONE) [attached
as/described in] Exhibit A. There are not other agreements, written or oral,
which affect Tenant's occupancy of the Premises.
(b) All insurance required of Tenant under the Lease has been provided
by Tenant and all premiums have been paid.
(c) To the best knowledge of Tenant, no party is in default under the
Lease. To the best knowledge of Tenant, no event has occurred which, with the
giving of notice or passage of time, or both, would constitute such a default.
(d) The interest of Tenant in the Lease has not been assigned or
encumbered. Tenant is not entitled to any credit against any rent or other
charge or rent concession under the
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Lease except as set forth in the Lease. No rental payments have been made more
than one month in advance.
4. All contributions required to be paid by Borrower to date for
improvements to the Premises have been paid in full and all of Borrower's
obligations with respect to tenant improvements have been fully performed.
Tenant has accepted the Premises, subject to no conditions other than those set
forth in the Lease.
5. Neither Tenant nor any guarantor of Tenant's obligations under the
Lease is the subject of any bankruptcy or other voluntary or involuntary
proceeding, in or out of court, for the adjustment of debtor-creditor
relationships.
6. (a) As used here, "Hazardous Substance" means any substance, material
or waste (including petroleum and petroleum products) which is designated,
classified or regulated as being "toxic" or "hazardous" or a "pollutant" or
which is similarly designated, classified or regulated, under any federal,
state or local law, regulation or ordinance.
(b) Tenant represents and warrants that it has not used, generated,
released, discharged, stored or disposed of any Hazardous Substances on, under,
in or about the Building or the land on which the Building is located (IF
APPLICABLE) [, OTHER THAN Hazardous Substances used in the ordinary and
commercially reasonable course of Tenant's business in compliance with all
applicable laws]. (IF APPLICABLE) [Except for such commercially reasonable use
by Tenant,] Tenant has no actual knowledge that any Hazardous Substance is
present, or has been used, generated, released, discharged, stored or disposed
of by any party, on, under, in or about such Building or land.
7. Tenant hereby acknowledges that borrower (CHOOSE ONE) intends to
encumber/has encumbered] the property containing the premises with a Deed of
Trust in favor of Bank. Tenant acknowledges the right of Borrower, Bank and
any and all of Borrower's present and future lenders to rely upon the
statements and representations of Tenant contained in this Certificate and
further acknowledges that any loan secured by any such Deed of Trust or further
deeds of trust will be made and entered into in material reliance on this
Certificate.
8. Tenant hereby agrees to furnish Bank with such other and further
estoppel as Bank may reasonably request.
------------------------------
By:
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Name:
-------------------------
Title:
------------------------
