EXHIBIT 10.25
BUSINESS PARK NET LEASE
000 XXXXXX XXXXX
XXXXXXX, XXXXXXXXXX
BY AND BETWEEN
BEDFORD PROPERTY INVESTORS INC.,
A MARYLAND CORPORATION
(LANDLORD)
AND
PINE PHOTONICS COMMUNICATIONS, INC.,
A DELAWARE CORPORATION
(TENANT)
BUSINESS PARK NET LEASE
This Business Park Net Lease ("LEASE") is entered into by and between "LANDLORD"
and "TENANT" (defined below and collectively the "PARTIES") and dated for
reference purposes only as of JUNE 30, 2000.
ARTICLE 1. SALIENT LEASE TERMS
In addition to the terms defined throughout this Lease, the terms set forth
below shall have the following meanings when referred to in this Lease:
1.1 RENT PAYMENT ADDRESS: BEDFORD PROPERTY INVESTORS
Xxxxxxx Xx, 00000 - "AUBURN COURT"
X.X. Xxx 00000
Xxx Xxxxxxxxx, XX 00000-0000.
1.2 LANDLORD & NOTICE ADDRESS: BEDFORD PROPERTY INVESTORS, INC., a
Maryland corporation
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile number (000) 000-0000
1.3 TENANT & NOTICE ADDRESS: PINE PHOTONICS COMMUNICATIONS, INC., a
Delaware corporation
000 Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Facsimile number: ( ) __________
1.4 PREMISES: 000 XXXXXX XXXXX, XXXXXXX, XX, containing
approximately 12,060 square feet (the
"RENTABLE AREA"), as outlined in Exhibit
B.
1.5 BUILDING: BUILDING 2: 000-000 XXXXXX XXXXX,
XXXXXXX, XXXXXXXXXX in which the Premises
are located.
1.6 COMPLEX: AUBURN COURT, located at 000-000 XXXXXX
XXXXX. (BUILDING 1) AND 000-000 XXXXXX
XXXXX (XXXXXXXX 0), XXXXXXX, XXXXXXXXXX,
in the State of California ("STATE"),
consisting of: (i) that parcel of real
property on which the Premises are
located, (ii) the Common Area, and (iii)
any contiguous parcels owned by Landlord,
us more particularly described in Exhibit
A.
1.7 TERM: (A) AUGUST 1, 2000 (the "COMMENCEMENT
DATE").
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(B) SIXTY (60) months.
1.8 MINIMUM MONTHLY RENT: (A) Minimum Monthly
8/1/00 -- 7/31/01: $ 21,105.00
8/1/01 -- 7/31/02: $ 22,160.25
8/1/02 -- 7/31/03: $ 23,268.26
8/1/03 -- 7/31/04: $ 24,431.68
8/1/04 -- 7/31/05: $ 25,653.26
(B) Advance Rent: $ 21,105.00
1.9 SECURITY DEPOSIT: $307,839.12 (SEE ADDENDUM #1 -- "LETTER OF
CREDIT AS SECURITY DEPOSIT")
1.10 PERMITTED USE: Administrative office, warehouse and
distribution, and engineering uses for
optical communication component business.
1.11 INITIAL PRO RATA %: 17.73% Percent - CAM and Insurance Pro
Rata (12,060 SF + 68,030 SF)
33.33% Percent - Property Tax Pro Rata
(12,060 SF + 36,180 SF)
COMPLEX RENTABLE AREA: 68,030 Square Feet (850-940 Auburn Court)
BUILDING 2 RENTABLE AREA: 36,180 Square Feet (910-940 Auburn Court)
1.12 LANDLORD'S ALLOWANCE: Not to Exceed: $ 24,120.00
1.13 CC&RS: Date of Recordation AUGUST 30, 1979
Book 112, Page 85
Document Number
1.14 MANAGEMENT FEE: 3% percent of gross rental revenue
1.15 BROKER: LANDLORD: CPS REALTY
TENANT: SHORELINE COMMERCIAL REAL ESTATE
1.16 CONTENTS: This Lease consists of Pages 1 through 15;
Articles 1 through 34; and Addenda 1; as
well as the following Exhibits:
Exhibit A - Legal Description of Complex
Exhibit B - Plan of the Complex and Floor
Plan of the Premises
Exhibit C - Work Letter for Construction
Obligations
Exhibit D - Acknowledgment of Commencement
of Term
Exhibit E - Rules and Regulations
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ARTICLE 2. PREMISES
2.1 Demising Clause. Landlord leases to Tenant and Tenant leases from
Landlord the Premises upon the terms and conditions set forth in this Lease.
Landlord reserves the area beneath and above the Building and the exterior
thereof together with the right to install, maintain, use, repair and replace
pipes, ducts, conduits, wires, and structural elements leading through the
Premises serving other parts of the Complex, so long as such items are concealed
by walls, flooring or ceilings. Such reservation in no way affects the
maintenance obligations imposed herein. Landlord may change the shape, size,
location, number and extent of the improvements to any portion of the Complex,
including the Building, without the consent of Tenant and without affecting
Tenant's obligations hereunder if such changes do not have a material adverse
impact on Tenant's use of the Premises. In this Lease "LANDLORD PARTIES" means
Landlord's directors, officers, employees, shareholders, contractors, property
managers, agents, Lenders, successors, assignees, nominees and other lien
holders, but excluding other tenants in the Complex, and "TENANT PARTIES" means
Tenant's directors, officers, employees, partners, shareholders, invitees,
agents, contractors, assigns, subtenants or occupants.
2.2 Covenants, Conditions and Restrictions. The Parties agree that this
Lease is subject and subordinate to the effect of: (a) any covenants,
conditions, restrictions, easements, Security Instruments, and any other matters
or documents of record, including the CC&Rs, and all amendments or modification
thereto (collectively, the "RESTRICTIONS"); (b) zoning and other laws of the
city, county and state where the Complex is situated; and (c) general and
special taxes not delinquent. Tenant agrees that as to its leasehold estate,
Tenant and all persons in possession or holding under Tenant will conform to and
will not violate the terms of any Restrictions.
ARTICLE 3. TERM AND POSSESSION
3.1 Commencement Date. The Commencement Date specified in Section 1.7 (A)
is the date the Parties agree that the Lease shall commence, whether or not
Tenant has completed construction of the Tenant Improvements by such date.
Following the Commencement Date, Tenant shall execute a written acknowledgment
of that date as the actual Commencement Date in the form of Exhibit D.
3.2 Term. The Term of this Lease shall start on the Commencement Date and
shall be for the term specified in Section 1.7 (B) hereof, plus any partial
month at the commencement of the Term.
3.3 Pre-Term Possession. Following delivery of the Premises by Landlord,
Tenant may enter the Premises at its own risk to construct the Tenant
Improvements pursuant to Exhibit C hereto. During any period prior to the
Commencement Date that Tenant is in possession of the Premises, all terms and
conditions of the Lease shall apply, including Tenant indemnities under the
Lease and Tenant's payment of utilities, but excluding the payment of other
Rent.
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3.4 Landlord Delay. Landlord shall use reasonable efforts to deliver the
Premises to Tenant on or before the Commencement Date specified in Section 1.7
(A). If Landlord cannot deliver possession of the Premises on or before the
Commencement Date, the Lease shall not be void or voidable, nor shall Landlord
be liable for any loss or damage resulting therefrom. If Landlord cannot deliver
possession of the Premises within six months following the Commencement Date for
any reason other than as may be caused by Tenant or any of the Tenant Parties,
Tenant shall have the right to cancel this Lease upon Notice to Landlord given
within ten days after the expiration of the six-month period. In the event of
any such delay in delivery of possession of the Premises to Tenant by Landlord
(the "LANDLORD DELAY"), the proposed Commencement Date of August 1, 2000, shall
be extended by an period equal to the Landlord Delay.
ARTICLE 4. RENT
4.1 Payment. Tenant shall pay to Landlord the Minimum Monthly Rent
specified in Section 1.8 (A) and the Additional Rent as set forth in Articles 5
through 8 and elsewhere in this Lease (the Minimum Monthly Rent and the
Additional Rent are collectively referred to as "RENT"). Minimum Monthly Rent is
payable in advance on the first day of each month of the Term at the Rent
Payment Address or such other address specified by Landlord. If the Term
commences on other than the first day of the month, the Rent for the first
partial month shall be prorated accordingly. All Rent is payable in lawful money
of the United States.
4.2 No Set Off. Rent shall be paid without prior notice, demand,
deduction, setoff, offset, counterclaim, recoupment, suspension or abatement
except as expressly provided in Articles 12 and 20.
4.3 Advance Rent. The amount specified in Section 1.8 (B) is paid to
Landlord upon execution of this Lease as advance Rent; provided, however, that
such amount shall be held by Landlord as a Security Deposit pursuant to the
Lease until it is applied by Landlord to the Minimum Monthly Rent.
4.4 Late Charges; Interest. Tenant acknowledges that late payment of Rent
or other sums due under the Lease will cause Landlord to incur costs not
contemplated by this Lease, the exact amount being extremely difficult and
impractical to fix. Such costs include processing and accounting charges, late
charges that may be imposed on Landlord by the terms of any encumbrance covering
the Premises, and interest costs. If Landlord does not receive any Rent or other
sums due from Tenant on the due date, Tenant shall pay to Landlord an additional
sum of ten percent of such Rent or other sum as a late charge. The Parties agree
that this late charge represents a fair and reasonable estimate of the cost
Landlord will incur by reason of Tenant's late payment. Accepting any late
charge does not waive Tenant's default with respect to the overdue amount or
prevent Landlord from exercising any other rights or remedies available to
Landlord. In addition to the late charge, Tenant shall pay interest at the rate
of 10 percent per annum on any Rent or other sum not paid within 30 days of the
date due.
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ARTICLE 5. TAXES
5.1 Definition. The terms "REAL PROPERTY TAXES" or "TAXES" as used in this
Lease include all of the following, but do not include any tax levied upon the
net income or profits of Landlord:
(a) Present and future Real Property Taxes on the Building, the
Complex, the land on which the Building is situated and the various estates in
the Building and the land, including this Lease, as well as all personal
property taxes levied on the property used in the operation of the Building or
land;
(b) The cost to Landlord of contesting the amount, validity, or
applicability of any Taxes;
(c) General or special assessments, improvement or other bonds,
commercial and gross rental tax, levy, or tax imposed by any authority having
the direct or indirect power to tax, as against any legal or equitable interest
of Landlord in the Premises or in the real properly of which the Premises are a
part, as against Landlord's right to Rent or other income therefrom, or as
against Landlord's business of leasing the Premises;
(d) Any tax, fee, or charge with respect to the possession, leasing,
transfer of interest, operation, management, maintenance, alteration, repair,
use, or occupancy by Tenant, of any part of the Premises, Building, or Complex;
and
(e) Any tax imposed in substitution, partially or totally, for any
tax previously included within the definition of Taxes herein, or any additional
tax, the nature of which may or may not have been previously included within the
definition of Taxes.
5.2 Assessments. Only the current amount of any general or special
assessments and statutory interest (prorated for any partial year) that comprise
a part of the Taxes and are paid in annual or semi-annual installments shall be
included within the computation of Taxes for which Tenant is responsible.
5.3 Separate Assessment. If the Premises are assessed separately by the
taxing agency, Tenant shall pay to such agency all Taxes applicable to the
Premises. Such payment is due ten days prior to such Taxes becoming delinquent.
If the Premises share parking or Common Area with other premises, Section 5.4
below shall apply to Taxes thereon.
5.4 Proration. If the Premises are not separately assessed, Tenant shall
pay as Additional Rent to Landlord, within ten days after Notice, Tenant's share
of all Real Property Taxes stated in the tax xxxx in which the Premises are
included, including the parking and Common Area, as well as the improvements on
all of said land, or otherwise arising under the provisions of this Article. As
used in this Section, "Tenant's share" is a fraction in which the numerator is
the Rentable Area of the Premises and the denominator is the sum of all rentable
areas included within the tax xxxx. The term "tax xxxx" means the tax xxxx that
includes the Premises, or a group of tax bills aggregated at the option of
Landlord, as long as all tax bills relate to the Complex.
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5.5 Estimated Payments. Landlord, at its option, may estimate the Taxes
next due and collect front Tenant on a monthly basis, along with Tenant's
payment of Minimum Monthly Rent, the amount of Tenant's estimated Tax
obligation. About May 1 of each year during the Term (or as soon thereafter as
is reasonably practicable), Landlord will provide Tenant with a reconciliation
of Tenant's account with respect to such estimated Tax payments. If it is
established upon such reconciliation that Tenant has not paid enough estimated
Taxes to cover Tenant's share for the year in question, Tenant shall pay to
Landlord the full amount of such shortage within ten days of billing. If it is
established that Tenant has overpaid its Tax obligation, Tenant will receive a
credit applicable to the next ensuing estimated Tax payments or a refund of the
amount if the Term has expired.
5.6 Personal Property Taxes. Tenant shall pay prior to delinquency all
taxes assessed against and levied upon trade fixtures, furnishings, equipment
and all other personal property of Tenant contained in the Premises or
elsewhere. When possible, Tenant shall cause such trade fixtures, furnishings,
equipment and all other personal property to be assessed and billed separately
from the real property of Landlord. If any of Tenant's personal property shall
be assessed with Landlord's reel property, or if any other Taxes or taxes which
are payable by Tenant pursuant to this Lease or otherwise are assessed against
Landlord or Landlord's real property, Tenant shall pay Landlord the Taxes and
other taxes attributable to Tenant within ten days after receipt of a written
statement setting forth the amount owed.
5.7 Net Rent. It is the intention of the Parties that the Rent received by
Landlord be net of any Taxes of any sort to be paid by Landlord. If it is not
lawful for Tenant to reimburse Landlord for any of the Taxes, the Minimum
Monthly Rent shall be increased by the amount equal to the Taxes allocable to
Tenant so as to net to Landlord the amount that it would have received if such
Tax had not been imposed.
ARTICLE 6. COMMON AREAS AND COMMON AREA COSTS
6.1 Definitions
(a) "COMMON AREA" include all areas and facilities outside the
Premises, within the exterior boundaries of the Complex, that are provided by
Landlord for the general use and convenience of Tenant and of other Complex
tenants and their authorized representatives and invitees. Common Area includes
driveways, parking areas, sidewalks, and landscaped areas, all as generally
described or shown on Exhibit B attached hereto. Exhibit B is tentative, and
Landlord reserves the right to make alterations to it from time to time. Common
Area also includes systems within the Premises that also serve other tenants
such as plumbing, fire sprinkler or non-exclusive HVAC.
(b) "COMMON AREA COSTS" are all costs incurred by Landlord for (i)
maintenance, repair, replacement, improvement, or operation of the Complex,
except for Landlord's maintenance obligation under Section 19.1; (ii) refuse
disposal; (iii) property owner's association dues or assessments imposed upon
Landlord by any Restrictions; (iv) liability and other insurance for the Complex
not covered in Section 8.4; (v) security services for the Complex; (vi)
upgrading the utility, efficiency or capacity of any utility or
telecommunication
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system serving tenants of the Complex; (vii) the Management Fee set forth in
Section 1.14; (viii) any other costs or fees reasonably related to the use,
operation or enjoyment of any part of the Complex; (ix) any insurance
deductibles for repairs under Article 12 or elsewhere in the Lease; and (x)
amortized Capital Costs.
(c) "PRO RATA %" is a fraction where the numerator is the Rentable
Area of the Premises and the denominator is the sum of the rentable areas of the
buildings in the Complex using the Common Area or for whose benefit the Common
Area Cost in incurred. Tenant's Initial Pro Rata % is stated in Section 1.11.
The Pro Rata % may change from time to time.
(d) "CAPITAL COSTS" are any (i) expenditures that do not recur more
frequently than at five year intervals in the normal course of operation and
maintenance of the Complex; (ii) costs of capital improvements made by Landlord
to the Complex for the purpose of reducing recurring expenses or utility costs;
and/or (iii) costs of capital improvements made by Landlord that are required by
governmental law, ordinance, regulation or mandate now or hereafter in effect,
that was not applicable to the Complex at the time of the original construction.
The portion of Capital Costs to be included each year in Common Area Costs is
that fraction allocable to the calendar year in question calculated by
amortizing the cost over the useful life of such improvement, as reasonably
determined by Landlord, with interest on the unamortized balance at ten per cent
per annum.
6.2 Rights and Duties of Landlord. Landlord shall maintain the Common
Area, establish and enforce reasonable rules and regulations therefor, close any
of the Common Area to whatever extent required in Landlord's opinion to prevent
a dedication of or the accrual of any rights of any person or of the public to
the Common Area, close temporarily any of the Common Area for maintenance
purposes, and make changes to the Common Area including changes in the location
of driveways, entrances, exits, vehicular parking spaces, parking area, the
designation of area for the exclusive use of others, the direction of the flow
of traffic or construction of additional buildings thereupon, in a manner
Landlord deems proper in its opinion,. Tenant hereby acknowledges that Landlord
is under no obligation to provide security for the Common Area but may do so at
its option as a Common Area Cost.
6.3 Payments by Tenant. As Additional Rent, Tenant shall pay Landlord its
"PRO RATA SHARE", being the product of the Pro Rata % times Common Area Costs,
within ten days of receiving a xxxx from Landlord, but no more frequently than
monthly. Landlord shall have the right to estimate Tenant's future Pro Rata
Share and to collect it from Tenant on a monthly basis along with Tenant's
payment of Minimum Monthly Rent. Landlord will provide a reconciliation of
Tenant's account at least annually. If the reconciliation allows Tenant's
account does not cover Tenant's Pro Rata Share for the period estimated, Tenant
shall immediately pay Landlord any deficiency. Any excess indicated by to
reconciliation shall be credited to Tenant's account to reduce the estimated
payments for the next ensuing period, or if excess is determined at the end of
the Term, it shall be refunded to Tenant.
6.4 Adjustments. Notwithstanding the foregoing provisions, Tenant's Pro
Rata % as to certain expenses included in Common Area Costs may be calculated
differently to yield a
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higher percentage share for Tenant as to those expenses if Landlord permits
other tenants or occupants in the Complex to incur such expenses directly rather
than have Landlord incur the expense in common for the Complex. In such case,
Tenant's Pro Rata % of the applicable expense shall be calculated as having as
its denominator the sum of the rentable areas of all premises in the Complex
less the rentable areas of tenants who have incurred such expense directly. In
any case where Tenant, with Landlord's consent, incurs such expenses directly,
Tenant's Pro Rata Share of such costs will be calculated specially so that
expenses of the same character which are incurred by Landlord solely for the
benefit of other tenants in the Complex will not be prorated to Tenant. Nothing
herein shall imply that Landlord will permit Tenant or any other tenant of the
Complex to incur Common Area Costs. Any such permission shall be in the sole
discretion of Landlord.
6.5 Refuse Disposal. Tenant shall pay Landlord, within ten days of being
billed therefore, for the removal from the Common Area, the Complex, or the
Building of any amounts of refuse or rubbish that Tenant has generated in excess
of amounts typically generated by other tenants of the Complex.
ARTICLE 7. _ASSIGNMENT AND SUBLETTING
7.1 Restriction on Transfer. Except as expressly provided in Article 7,
Tenant will not, either voluntarily or by operation of law, assign, mortgage,
hypothecate, encumber or otherwise transfer this Lease or any interest herein or
sublet or license the Premises or any part thereof, or permit the use or
occupancy of the Premises by any party other than Tenant (any of which are
referred to as a "TRANSFER"), without the prior written consent of Landlord. For
purposes of this Article, if Tenant is a corporation, limited liability company,
partnership or other entity any transfer, assignment, encumbrance or
hypothecation of fifty percent or more (individually or in the aggregate) of any
stock or other ownership or beneficial interest in such entity, and/or any
transfer, assignment, hypothecation or encumbrance of any controlling ownership,
beneficial or voting interest in such entity, will be deemed a Transfer and will
be subject to all of the restrictions and provisions contained in this Article.
The immediately preceding sentence will not apply to public corporations, the
stock of which is traded through a public exchange or over the counter system.
7.2 Transfer Notice. If Tenant desires to affect a Transfer, at least 30
days prior to the date when Tenant desires the Transfer to be effective (the
"TRANSFER DATE"), Tenant will give Notice (the "TRANSFER NOTICE"), stating the
name, address and business of the proposed assignee, subtenant or other
transferee (the "TRANSFEREE"). The Notice must contain information in such
detail as Landlord may reasonably require concerning the character, ownership,
and financial condition of Transferee (including references), the Transfer Date,
any relationship between Tenant and Transferee, and a draft of the "TRANSFER
AGREEMENT" showing the consideration and other terms of the proposed Transfer.
7.3 Landlord's Options. Within fifteen days of receipt of a Transfer
Notice, and any additional information reasonably requested by Landlord
concerning the Transferee's financial responsibility, Landlord will notify
Tenant of its election to do one of the following: (i) consent to the proposed
Transfer subject to such reasonable conditions as Landlord may impose in
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providing such consent; (ii) refuse such consent, which refusal shall be on
reasonable grounds; or (iii) terminate this Lease as to the portion of the
Premises which is the subject of the proposed Transfer and recapture that
portion of the Premises for reletting by Landlord. Tenant agrees that it is
reasonable for Landlord to deny consent to a proposed Transfer under (ii),
above, on any of the following grounds, which list is not exclusive:
(a) The financial strength of the proposed Transferee is not
comparable to that of Tenant at the time of execution of this Lease;
(b) A proposed Transferee whose occupation of the Premises would
cause a diminution in the reputation of the Complex or the other businesses
located therein;
(c) A proposed Transferee whose impact on the common facilities or
the efficiency or effectiveness of any utility or telecommunication system
serving the Building or the Complex or other tenants of the Complex would be
adverse, disadvantageous or require improvements or changes in any utility or
telecommunication capacity currently serving the Building or the Complex;
(d) A proposed Transferee whose use presents any risk of violation
of Article 16;
(e) A proposed Transferee whose occupancy will require a variation
in the terms of this Lease (e.g., a variation in the use clause) or which
otherwise adversely affects any interest of Landlord;
(f) The existence of any default by Tenant under any provision of
this Lease;
(g) A proposed Transferee who is or is likely to be, or whose
business is or is likely to be, subject to compliance with additional laws or
other governmental requirements beyond those to which Tenant or Tenant's
business is subject; or
(h) The proposed Transfer, or Landlord's consent thereto, would
result in Landlord's breach of an existing agreement with a third party.
7.4 Additional Conditions. A condition precedent to any Transfer will be
the delivery to Landlord of a true copy of the fully executed Transfer Agreement
that does not differ materially from that provided pursuant to Section 7.2.
Tenant undertaking the transfer ("TRANSFEROR") agrees to pay Landlord, as
Additional Rent, 80 percent of all sums and other consideration payable to and
for the benefit of Tenant by the Transferee in excess of the Rent payable under
the Lease for the same period and portion of the Premises. In calculating excess
Rent or other consideration which may be payable to Landlord under this
paragraph, Tenant will be entitled to deduct a monthly amortization of
commercially reasonable third party brokerage commissions and attorney's fees
and other amounts reasonably and actually expended by Tenant in connection with
the Transfer if acceptable written evidence of such expenditures is provided to
Landlord. No Transfer will release Transferor (or any prior Transferor) of
Tenant's obligations under this Lease or alter the primary liability of
Transferor (or any prior Transferor) to perform all obligations to be performed
by Tenant hereunder. Landlord may require that
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Transferee remit directly to Landlord on a monthly basis, all monies clue
Transferor by said Transferee. Consent by Landlord to one Transfer will not be
deemed consent to any subsequent Transfer. In the event of default by
Transferee, Tenant or any successor of Tenant in the performance of any other
terms hereof, Landlord may proceed directly against Transferor (or any prior
Transferor) without the necessity of exhausting remedies against Transferee or
successor. If Tenant requests the consent of Landlord to a Transfer, Tenant will
pay Landlord an administrative fee of Two Hundred Fifty Dollars ($250.00)
concurrent with the request, plus Landlord's reasonable attorney's fees.
7.5 Recapture. By Notice to Tenant (the "TERMINATION NOTICE") within
thirty days after Landlord receives the information specified in Section 7.2,
Landlord may terminate this Lease in the event of a Transfer of the Lease as to
the entire Premises, or terminate this Lease as to the portion of the Premises
to be transferred, if the Transfer is for less than the entire Premises. If
Landlord elects to terminate this Lease to the portion of the Premises to be
Transferred, an amendment to this Lease shall be executed restating the
description of the Premises and reducing Tenant's obligations for Rent and other
charges in proportion to the reduction in rentable area of the Premises caused
thereby. If Landlord elects a whole or partial termination hereunder, Landlord
may enter into a new lease covering the Premises or the affected portion thereof
with the intended Transferee on such terms as Landlord and such person may agree
or enter into a new lease covering the Premises with any other person. In such
event, Tenant shall not be entitled to any portion of the profit that Landlord
may realize on account of such termination and reletting. Upon the termination
of this Lease, the Parties shall have no further obligations to each other under
this Lease except for matters occurring or obligations arising prior to the date
of such termination.
7.6 Reasonable Restriction. Tenant acknowledges and agrees that the
restrictions on transfer in this Article are reasonable for all purposes,
including the provisions of Code Section 1951.4(b)(2). Tenant expressly waives
any rights which it might otherwise be deemed to possess pursuant to applicable
law, including Code Section 1997.040, which would limit any remedy of Landlord
pursuant to Sections 1951.2 or 1951.4 of the Code by means of proof that
enforcement of a restriction on use or Transfer of the Premises would be
unreasonable.
ARTICLE 8. PROPERTY INSURANCE
8.1 Landlord's Insurance. In addition to any other insurance Landlord
elects to maintain, Landlord agrees to maintain commercial property insurance
covering the Building against broad form causes of loss. Such insurance shall be
issued in the names of Landlord and its lender, as their interests appear, and
shall be for the sole benefit of such parties and under their sole control.
8.2 Use of Premises. No use shall be made or permitted to be made an the
Premises, nor acts done, by Tenant or any of its invitees, contractors or agents
which will increase the existing rate of insurance upon the Building in which
the Premises are located or upon any other building or improvement in the
Complex or cause the cancellation of any insurance policy covering the Building,
or any other building or improvement in the Complex, or any part thereof. Tenant
or Tenant Parties shall not sell, or permit to be kept, used or sold, in or
about the
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Premises, any article that may be prohibited by commercial property insurance,
special form policies. At its sole cost and expense, Tenant shall comply with
all requirements of any insurance company, necessary to maintain reasonable
property damage and commercial general liability insurance covering the
Premises, Building, or Complex.
8.3 Increase in Premiums. Tenant agrees to pay to Landlord, as Additional
Rent, any increase in premiums on policies which may be carried by Landlord on
to Premises, the Building or the Complex, or any blanket policies which include
the Building or Complex, covering damage thereto and loss of Rent caused by fire
and other perils resulting from the nature of Tenant's occupancy or any act or
omission of Tenant. All payments of Additional Rent by Tenant to Landlord
pursuant to this Section shall be made within ten days after receipt by Tenant
of Landlord's billing therefor.
8.4 Pro Rata Share of Premiums. Tenant shall pay to Landlord, as
Additional Rent, its pro rata share of the insurance premiums for any property
insurance carried by Landlord covering the Complex (the "COMPLEX INSURANCE
PREMIUM") of the nature or cause of such increase. Tenant will pay such costs as
stet forth in Section 8.5. Such pro rata share is defined as a fraction of the
insurance premiums in which the numerator is the Rentable Area of the Premises
and the denominator is the total rentable areas in all premises to which the
Complex Insurance Premium is applicable. If the property insurance carried by
Landlord for the Complex is a blanket policy covering other properties not
related to the Complex, the Complex Insurance Premium shall be calculated as
that portion of such blanket policy insurance premium which, in Landlord's good
faith judgment, is properly allocable to the Complex. These sums due shall be in
addition to sums due under the previous Section of this Lease.
8.5 Estimated Payments. Landlord may, at its option, estimate the amount
of insurance premiums for property insurance to be due in the future from Tenant
and collect from Tenant on a monthly basis, along with payment of Tenant's
Minimum Monthly Rent, the amount of Tenant's estimated insurance premium
obligation. Prior to May 1 of each year (or as soon thereafter as reasonably
practicable), Landlord shall provide Tenant with a reconciliation of Tenant's
account along with a billing for any shortage in the event of a deficiency or
statement for credit applicable to the next ensuing insurance premium payments,
if an overpayment has been made by Tenant.
ARTICLE 9. TENANT'S INSURANCE
At its expense, Tenant shall obtain and keep in force during the Term, and
provide coverage after expiration of the Term for events occurring during the
Term, the following insurance, on an occurrence basis, against claims for
injuries to persons or damages to property that may arise from or in connection
with the Tenant's operation and use of the Premises:
(a) Commercial Property policy with Special Form causes of loss
covering: (i) business personal property, leasehold improvements on a
replacement cost basis, subject to a deductible no greater than $1,000; (ii)
business income and extra expense equal to at least one year's gross revenue
from Tenant's operations on the Premises; which policy shall include waiver of
subrogation rights of insurer against Landlord consistent with Section 11.2.
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(b) Commercial General Liability policy for bodily injury, personal
injury an property damage with limits of not less than $1,000,000 per occurrence
and $2,000,000 annual aggregates on a per location basis. Endorsements
satisfying the following requirements shall be affixed: (i) Landlord, Lender and
any other party designated by Landlord (including Landlord's property manager)
shall be named as additional insureds; (ii) Tenant's policy shall be primary,
not contributing with, and not in excess of any other applicable insurance
carried by Landlord; (iii) Tenant's policy shall extend to and include injuries
to persons and damage to property arising in connection with any alterations or
improvements to or about the Premises performed by or on behalf of Tenant; and
(iv) Tenant's policy shall include contractual liability coverage.
(c) Business Auto Liability covering all owned, non-owned and hired
vehicles with a limit of $1,000,000 per accident.
(d) Workers' Compensation on a statutory basis and Employers'
Liability with $1,000,000 per accident for bodily injury and diseases.
(e) Umbrella Liability with a $3,000,000 per occurrence/annual
aggregate limit.
ARTICLE 10. INSURANCE POLICY REQUIREMENTS
All insurance policies to be carried by Tenant hereunder shall conform to the
following requirements:
(a) The insurer in each case shall carry a designation in "Best's
Insurance Reports" as issued from time to time throughout the Term as follows:
Policyholders' rating of A; financial rating of not less than VII;
(b) The insurer shall be qualified to do business in the State;
(c) The policy shall be in a form and include such endorsements as
are acceptable to Landlord;
(d) Certificates of insurance shall be delivered to Landlord at
commencement of the term and certificates of renewal at least 30 days prior to
the expiration of each policy; and
(e) Each policy shall require that Landlord be notified in writing
by the insurer at least 30 days prior to any cancellation or expiration of such
policy, or any reduction in the amounts of insurance carried.
ARTICLE 11. INDEMNIFICATION, WAIVER OF CLAIMS AND SUBROGATION
11.1 Intent and Purpose. The Parties intend to completely assign the risk
of loss, whether resulting from negligence of the Parties or otherwise, to the
party who the Lease obligates to cover the risk of such loss with insurance. The
object of the indemnity and waiver of claims provisions of this Lease is to
assign the risk for a particular casualty to the party
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obligated to carry the insurance for such risk (which is not a limitation of the
assignment of the risk), without respect to the causation thereof.
11.2 Waiver of Subrogation. The Parties release each other from any claims
for damage to the Premises, Building and Complex, and to the furniture,
fixtures, and other business personal property, Tenant's improvements and
alterations of either Landlord or Tenant, in or on the Premises, Building and
Complex, and for loss of income, to the extent such damages or loss are actually
covered by insurance policies maintained by the Parties or that would have been
covered by insurance policies required of the Parties under this Lease.
11.3 Tenant's Indemnity. Tenant shall indemnify, defend, protect and hold
harmless Landlord from and against all actions, claims, demands, damages,
liabilities, losses, penalties, or expenses of any kind ("CLAIMS") which may be
brought or imposed upon Landlord or which Landlord may pay or incur by reason of
injury to person or property, from whatever cause including the negligence of
the Parties hereto, in any way connected with the condition or use of the
Premises, or Alterations, improvements or personal property therein or thereon,
including any liability or injury to the person or property of Tenant or Tenant
Parties, except to the extent caused by Landlord's gross negligence or willful
acts.
11.4 Waiver of Claims. Except as arising from the gross negligence or
willful misconduct of Landlord, Tenant releases and waives all claims against
Landlord for damages or injury from any cause arising at any time, including the
negligence of the Parties, for damages to goods, wares, merchandise and loss of
business in, upon or about the Premises or Complex and injury to Tenant, its
agents, employees, invitees or third persons, in, upon, or about the Premises or
Complex. It is understood and agreed that the release set forth herein extends
to all claims of every nature and kind whatsoever, known or unknown, suspected
or unsuspected, and Tenant expressly waives all rights under Section 1542 of the
Code which reads as follows:
"A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor."
11.5 References. Wherever the term Landlord, Tenant or the Parties is used
in this Article, and such party is to receive the benefit of a provision of this
Article, such term shall also refer also to the Party's officers, directors,
shareholders, employees, partners, agents, mortgagees and other lienholders.
ARTICLE 12. DESTRUCTION
12.1 Rights of Termination. If the Premises suffers an Uninsured Property
Loss or a property loss which cannot be repaired within 195 days from the date
of destruction, as determined by Landlord, Landlord may terminate this Lease as
of the date of the damage (the "LOSS DATE") upon Notice to Tenant. If the
Premises cannot be repaired within 195 days of the Loss Date, as determined by
Landlord and stated in Landlord's Notice to Tenant, Tenant may elect to
terminate this Lease by Notice to Landlord given within 20 days of Landlord's
Notice that the restoration time will exceed 195 days. Landlord's Notice shall
be given within 45 days
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of the Loss Date or as soon thereafter as the restoration time can be
determined. "UNINSURED PROPERTY LOSS" is any damage or destruction for which the
insurance proceeds available to Landlord are insufficient to pay for the repair
or reconstruction of the Premises.
12.2 Repairs. In the event of a casualty that may be repaired within 195
days from the Loss Date, or if the Parties do not elect to terminate this Lease
under Section 12.1, this Lease shall continue in full force and effect and
Landlord shall promptly undertake to make repairs to reconstitute the Premises
to as near as practicable to the condition as existed prior to the Loss Date.
The partial destruction shall in no way void this Lease except, to the extent of
Landlord's recovery under its rent abatement insurance for the Premises, Tenant
shall be entitled to a proportionate reduction of Minimum Monthly Rent and any
Additional Rent following the property loss until the time the Premises are
restored. The reduction amount will reflect the degree of interference with
Tenant's business. As long as Tenant conducts business in the Premises, there
shall be no abatement until the Parties agree on the amount thereof if the
Parties cannot agree within 45 days of the Loss Date, the matter shall be
submitted to arbitration under the rules of the American Arbitration
Association. Upon the resolution of the dispute, the settlement shall be
retroactive and Landlord shall within ten days thereafter refund to Tenant any
sums due in respect of the reduced Rent from the date of the property loss.
Landlord's obligations to restore shall in no way include any construction
originally performed by Tenant or subsequently undertaken by Tenant, but shall
include solely that property constructed by Landlord prior to commencement of
the Term.
12.3 Repair Costs. The cost of any repairs to be made by Landlord pursuant
to Section 12.2 shall be paid by Landlord using available insurance proceeds.
12.4 Waiver. Tenant hereby waives all statutory or common law rights of
termination in respect to any partial destruction or property loss which
Landlord is obligated to repair or may elect to repair under the terms of this
Article. Further, in event of a property loss occurring during the last two
years of the original term hereof or of any extension, Landlord need not
undertake any repairs and may cancel this Lease unless Tenant has the right
under the terms of this Lease to extend the term for an additional period of at
least five years and does so within 30 days of the date of the property loss.
12.5 Landlord's Election. If the Complex or Building is destroyed by more
than 35 percent of the replacement cost, Landlord may elect to terminate this
Lease, whether the Premises are damaged or not, as set forth in Section 12.1. A
total destruction of the Complex or the Premises terminates this Lease.
ARTICLE 13. ACCORD AND SATISFACTION
No payment by Tenant or receipt by Landlord of less than the full Rent due
hereunder shall be deemed to be other than on account of the earliest due Rent.
No endorsement or statement on any check or any letter accompanying any such
check or payment will be deemed an accord and satisfaction, and Landlord may
accept such check or payment without prejudice to Landlord's right to recover
the balance of such Rent or pursue any other remedy available in this Lease, at
law or in equity. Landlord may accept partial payment from Tenant without
invalidation of any
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contractual notice required to be given herein (to the extent such contractual
notice is required) and without invalidation of any notice required to be given
pursuant to California Code of Civil Procedure ("CCP") Section 116), et seq., or
any successor statute.
ARTICLE 14. SECURITY DEPOSIT
14.1 Payment on Lease Execution. On execution of the Lease Tenant shall
pay Landlord the Security Deposit. This sum is a deposit securing Tenant's
performance of the Lease and shall remain the sole and separate property of
Landlord until actually repaid to Tenant (or at Landlord's option the last
assignee, if any, of Tenant's interest hereunder). Tenant does not earn said sum
until all conditions precedent for its payment to Tenant have been fulfilled. As
this sum both in equity and at law is Landlord's separate property, Landlord is
not be required to keep it separate from its general accounts or pay interest
for its use. If Tenant fails to pay Rent or other charges when due hereunder, or
otherwise defaults with respect to any provision of this Lease, including and
not limited to Tenant's obligation to restore or clean the Premises following
vacation thereof, at Landlord's election, Tenant shall be deemed not to have
earned the right to repayment of the Security Deposit, except those portions not
used by Landlord for the payment of any Rent or other charges in default, or for
the payment of any other sum to which Landlord may become obligated by reason of
Tenant's default, or to compensate Landlord for any loss or damage which
Landlord may suffer thereby. Landlord may retain such portion of the Security
Deposit as it reasonably deems necessary to restore or clean the Premises
following vacation by Tenant. The Security Deposit is not to be characterized as
Rent until and unless so applied to a default by Tenant.
14.2 Restoration of Deposit. If Landlord elects to use or apply all or any
portion of the Security Deposit as provided in Section 14.1, Tenant shall within
ten days after written demand therefor pay to Landlord in cash, an amount equal
to that portion of the Security Deposit used or applied by Landlord, and
Tenant's failure to do so shall be a material breach of this Lease. The ten day
notice specified in the preceding sentence shall insofar as not prohibited by
law, constitute full satisfaction of notice of default provisions required by
law or ordinance.
ARTICLE I5. USE
The Premises may be used and occupied only for the purposes specified in Section
1.10 and for no other purpose. Tenant shall not use or permit the use of the
Premises in any manner that will disturb any other tenant in the Building or
Complex, or obstruct or interfere with the rights of other tenant or occupants
of the Building or Complex, or injure or annoy them or create any unreasonable
smells, noise or vibrations (taking into account the nature and tenant-mix of
the Building). Tenant shall not allow the Premises to be used for any unlawful
or objectionable purpose, nor shall Tenant cause, maintain, or permit any
nuisance or waste in, on or about the Premises, Building or Complex.
ARTICLE 16. COMPLIANCE WITH LAWS AND REGULATIONS
16.1 Tenant's Obligations. At its sole cost and expense, Tenant shall
comply with all of the requirements of all municipal, state, federal, and
quasi-governmental authorities and utility
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providers now in force, or which may hereafter be in force, affecting the
Premises and/or Tenant's use thereof including those pertaining to Tenant
Parties, and faithfully observe in the use or occupancy of the Premises all
municipal ordinances and state and federal statutes, laws and regulations now or
hereafter in force, including the Environmental Laws and the Americans with
Disabilities Act, 42 U.S.C. Sections 12101-12213 (collectively the "LAWS AND
REGULATIONS"). Tenant's obligation to comply with and observe the Laws and
Regulations shall apply regardless of whether such Laws and Regulations regulate
or relate to Tenant's particular use of the Premises or relate to the use of
premises in general, and regardless of the cost thereof. A judgment of any court
of competent jurisdiction, or the admission of Tenant in any action or
proceeding against Tenant, whether Landlord be a party thereto or not, that any
Laws and Regulations pertaining to the Premises have been violated, is
conclusive of that fact as between Landlord and Tenant.
16.2 Condition of Premises. Subject to performance of Landlord's work, if
any, as stated in Exhibit C, Tenant hereby accepts the Premises in "AS IS"
condition as of the date of occupancy, subject to all applicable Laws and
Regulations, Restrictions, and requirements in effect during any part of the
Term regulating the Premises, and without representation, warranty or covenant
by Landlord, express or implied, as to the condition, habitability or safety of
the Premises, the suitability or fitness thereof for their intended purposes.
Tenant acknowledges that the Premises in such condition are in good and sanitary
order, condition and repair.
16.3 Hazardous Materials.
(a) Definitions
(i) "ENVIRONMENTAL LAWS" mean any federal, State, local or
administrative agency ordinance, law, rule or regulation, order or requirement
relating to Hazardous Materials, radioactive materials, medical wastes, or which
deal with air or water quality, air emissions, soil or ground conditions or
other environmental matters of any kind.
(ii) "HAZARDOUS MATERIALS" means any substance, chemical,
waste or materiel which is listed, defined or otherwise identified as
"hazardous" or "toxic" under any of the Environmental Laws, including
formaldehyde, urea, polychlorinated biphenyls, petroleum, petroleum products,
crude oil, natural gas, radioactive materials, radon, asbestos or any by-product
of same.
(iii) "LEASES" mean claims, liability, damages (whether
consequential, direct or indirect, known or unknown, foreseen or unforeseen),
penalties, fines, liabilities, losses (including property damage, diminution in
value of Landlord's interest in the Premises, Building or Complex, damages for
the loss of use of any space or amenity within the Premises, Building, or
Complex, damages arising from any adverse impact on marketing space in the
Complex, sums paid in settlement of claims and any costs and expenses associated
with injury, illness or death to or of any person), suits, administrative
proceedings, costs and fees, including Professional Fees and expenses.
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(iv) "RELEASE" means generation, discharge, disposal, release,
deposit, transport, or storage of Hazardous Materials
(b) Use of Hazardous Materials. Tenant shall use and store in the
Premises and Complex only ordinary and general office and cleaning supplies in
normal and customary amounts, and such other Hazardous Materials as have been
previously approved by Landlord in writing (which approval may be withheld in
Landlord's sole and absolute discretion) and which are reasonably necessary for
Tenant's business. All such Hazardous Materials shall be limited to quantities
consistent with the approved use of the Premises and shall be used, stored and
disposed of in full compliance with all Environmental Laws. Tenant shall not
install any tanks under or on the Premises for the storage of Hazardous
Materials without the written consent of Landlord, which may be given or
withheld in Landlord's sole discretion. Upon the expiration or earlier
termination of this Lease, Tenant shall promptly remove from the Premises,
Building and Complex all Hazardous Materials brought on, stored, used, generated
or Released on the Premises, Building or Complex by Tenant or any Tenant
Parties.
(c) Release of Hazardous Materials. Tenant shall promptly give
Landlord Notice of any Release of Hazardous Materials in the Premises, Building
or Complex of which Tenant becomes aware during the Term whether caused by
Tenant or others. At its sole cost and expense, Tenant shall investigate, clean
up and remediate any Release of Hazardous Materials that were caused or created
by Tenant or any of Tenant Parties. Investigation, clean up and remediation may
be performed only after Tenant has Landlord's written approval of the
remediation plan Tenant may respond immediately to an emergency without first
obtaining Landlord's written consent. All clean up and remediation shall be done
in compliance with Environmental Laws and to the reasonable satisfaction of
Landlord.
(d) Inspection and Testing by Landlord. At reasonable times during
the term of this Lease, Landlord may inspect the Premises and conduct tests to
determine whether Tenant is in compliance with the provisions of this Article
16. Except in case of emergency, Landlord shall give reasonable notice to Tenant
before conducting any inspections or tests. Tenant shall pay the cost of any
inspections or tests that discloses any violation by Tenant or Tenant Parties of
the terms and provisions of Article 16.
(e) Liability. It is the express intention of the Parties that
Tenant shall be liable under Section 16.3 for any and all conditions which were
caused or created by Tenant or any Tenant Parties, whenever created or caused.
Tenant shall not enter into any settlement agreement, consent decree or other
compromise with respect to any claims relating to any Hazardous Materials in any
way connected to the Premises without first (i) notifying Landlord of Tenant's
intention to do so and affording Landlord the opportunity to participate in any
such proceedings, and (ii) obtaining Landlord's written consent.
16.4 Indemnity. Tenant shall indemnify and hold harmless Landlord and
Landlord Parties, from and against all Losses arising from or related to (a) any
violation or alleged violation by Tenant or any Tenant Parties of any Laws and
Regulations or the Environmental Laws; (b) any liability under any Laws and
Regulations or the Environmental Laws arising out of Hazardous Materials that
were "Released" or otherwise brought onto the Complex by Tenant
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or any Tenant Parties; (c) any breach of the provisions of Article 16 by Tenant
or any Tenant Parties; or (d) any Release of Hazardous Materials on the
Premises, Building or Complex by Tenant or Tenant Parties. Tenant shall also
reimburse Landlord costs of cleanup, remediation, removal and restoration that
are in any way related to any matter covered by the foregoing indemnity.
Tenant's obligations under this Section survive the expiration or termination of
the Lease.
ARTICLE 17. UTILITIES
17.1 Payment by Tenant. Tenant, from the earlier of the time it first
enters the Premises for the purpose of setting fixtures, or from the
commencement of this Lease, and throughout the Term, shall pay all charges
including connection fees for water, gas, heat, sewer, power, cable, telephone
cabling and services and any other utility supplied to or consumed in or on the
Premises. Tenant shall not allow refuse, garbage or trash to accumulate outside
of the Premises except on the day of scheduled scavenger pick-up services, and
then only in areas designated for that purpose by Landlord. Landlord shall not
be responsible or liable for any interruption or failure in utility, refuse or
telecommunication services, nor shall such interruption or failure affect the
continuation or validity of this Lease.
17.2 Separate Meters. Landlord reserves the right to install separate
meters for any utility servicing the Premises for which a meter is not presently
installed, in which event Tenant shall make payments, when due, directly to the
utility involved.
17.3 Joint Meters. For any utility services not separately metered to
Tenant, Tenant shall pay a proportion to be determined by Landlord of all
charges jointly metered with other leased premises or occupants in the Complex.
All payments to Landlord in respect thereof shall be due within ten days after
receipt of the billing by Tenant as Additional Rent.
ARTICLE 18. ALTERATIONS
18.1 Consent of Landlord; Ownership. Tenant shall not make or allow
alterations, additions or improvements, including any that result in increased
telecommunication demands or require the addition of new conduit, communication
or computer wires, cables or related devises or expand the number of telephone
or communication lines dedicated to the Premises by the Building's
telecommunication design, ("ALTERATIONS") to the Premises without the prior
written consent of Landlord. Tenant may not make any Alterations that affect
structural elements of the Building. Upon expiration or termination of this
Lease, any Alterations except trade fixtures shall become a part of the realty
and belong to Landlord. Except as otherwise provided in this Lease, Tenant shall
have the right to remove its trade fixtures placed upon the Premises provided
that Tenant restores the Premises as indicated below.
18.2 Requirements. Landlord may condition its consent for any Alterations
upon Tenant complying at its sole coat and expense with reasonable conditions
and requirements, including the preparation of all construction plans, drawings
and specifications for approval by Landlord; the use of contractors and
subcontractors approved by Landlord; the delivery of performance and payment
bonds showing Landlord as a beneficiary; and the delivery to
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Landlord of duplicate originals of all as-built drawings. Tenant shall obtain
all necessary permits as its sole obligation and expense, and strictly comply
with the following requirements:
(a) Following approval by Landlord of Alterations, Tenant shall give
Landlord at least ten days' prior Notice or commencement of work in the Premises
so that Landlord may post notices of non-responsibility in or upon the Premises
as provided by law;
(b) The Alterations must use materials of at least equal quality to
Tenant Improvements at the Commencement Date, and must be performed in
compliance with all laws, ordinances, rules and regulation now or hereafter in
effect and in a manner such that they will not interfere with the quiet
enjoyment of the other tenants in the Complex; and
(c) All costs and expenses incurred by Landlord in altering,
repairing or replacing any portion of the Premises, Building or Complex in
connection with approving any Alterations shall be paid solely by Tenant to
Landlord prior to commencing any Alterations.
18.3 Liens. Tenant will keep the Premises and the Complex free from any
liens arising out of any Alterations done by Tenant. If a mechanic's or other
lien is filed against the Premises, Building or Complex through Tenant, Landlord
may demand that Tenant furnish a satisfactory lien release bond of one hundred
fifty percent of the amount of the contested lien claim. Such bond must be
posted ten days after Notice from Landlord. In addition, Landlord may require
Tenant to pay Landlord's attorneys' fees and costs in participating in any
action contesting such lien, or the foreclosure thereof, if Landlord elects to
do so. Landlord may pay the claim prior to the enforcement thereof, in which
event Tenant shall reimburse Landlord in full, including attorneys' fees, for
any such expense, as Additional Rent, with the next due Rent payment.
ARTICLE 19. MAINTENANCE AND REPAIRS
19.1 Obligations of Landlord and Tenant. At its cost and expense, Tenant
shall maintain the Premises in good condition and repair including all necessary
replacements. Tenant shall maintain the appearance of the Premises in a manner
consistent with the character, use and appearance of the Complex. Subject to the
obligations of Tenant under this Article and Article 16, Landlord will perform
all necessary repairs, maintenance and replacement of the foundation, roof and
structural parts of the Building. The cost thereof will be paid by Landlord and
reimbursed by Tenant on a pro rata basis in the manner provided in this Lease
with respect to Common Area Costs, including amortization of Capital Costs. At
its expense, Tenant shall maintain all utilities, fixtures and mechanical
equipment within, or otherwise serving, the Premises in good order, condition
and repair. In the case of equipment installed by Landlord for Tenant, or
installed by Tenant to be the property of Landlord, such as heating, ventilating
and air conditioning equipment, or other mechanical equipment, at its expense,
Tenant shall maintain a service contract for its regular maintenance with a
service company acceptable to Landlord. Tenant shall not place anything on the
roof or penetrate the roof without the consent of Landlord, which consent may be
withheld in Landlord's sole discretion.
19.2 HVAC System. Notwithstanding the provisions of Section 19.1, Landlord
may elect at any time upon Notice to Tenant to perform the maintenance of the
heating, ventilating
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and air conditioning system (hereinafter "HVAC") for the account of Tenant. In
such event, Tenant shall pay as Additional Rent the full cost of the maintenance
contract for the Premises HVAC within ten days of receipt of billing from
Landlord, as well as for costs of necessary repair or replacement of parts, in
the reasonable judgment of Landlord. Landlord may, at its option, elect to have
the HVAC in the Premises maintained in common with other equipment in the
Complex. If so, Tenant shall pay its Pro Rata Share of the maintenance costs.
The maintenance contract on the HVAC, extended warranties and any repairs
and replacements not covered by the maintenance contract or warranty shall be
included in the charges allocated to Tenant. Landlord may elect to replace the
HVAC system, if necessary, and in such event the cost thereof shall be treated
as provided in Article 6. Tenant shall pay as Additional Rent to Landlord,
within ten days after receipt of billing, its pro rats share of such
amortization, established on an equitable basis as set forth in the prior
paragraph.
19.3 Waiver. Tenant waives all rights it may have under law or at equity
to make repairs or to perform any obligation of Landlord arising under this
Lease at Landlord's expense.
ARTICLE 20. CONDEMNATION
20.1 Definitions.
(a) "CONDEMNATION" means (i) the exercise of any governmental power,
whether by legal proceedings or otherwise, by a Condemnor and/or (ii) a
voluntary sale by Landlord to a Condemnor, under threat of Condemnation or while
legal proceedings for Condemnation are pending.
(b) "DATE OF TAKING" means the date the condemnor has the right to
possession of the property being condemned.
(c) "AWARD" means all compensation, sums or anything of value
awarded, paid or received on a total or partial condemnation.
(d) "CONDEMNOR" means any person or entity having the power of
condemnation.
20.2 Total Taking. If the Premises are totally taken by condemnation, this
Lease shall terminate on the Date of Taking.
20.3 Partial Taking; Common Area.
(a) If a portion of the Premises is taken by condemnation, this
Lease shall remain in effect, except that Tenant can elect to terminate this
Lease if 20 percent or more of the total number of square feet in the Premises
is taken.
(b) If any part of the Common Area of the Complex is taken by
condemnation, this Lease shall remain in full force and effect so long as there
is no material interference with the recess to the Premises, except that if 35
percent or more of the Common
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Area is taken by condemnation, either party shrill have the election to
terminate this Lease pursuant to this Section.
(c) If 30 percent or more of the Building in which the Premises are
located is taken, Landlord shall have the election to terminate this Lease in
the manner prescribed herein.
20.4 Termination or Abatement. If either party elects to terminate this
Lease under the provisions of Section 20.3 (such party is hereinafter referred
to as the "TERMINATING PARTY"), it must terminate by giving Notice to the other
party (the "NONTERMINATING PARTY") within 30 days after the nature and extent of
the taking have been determined (the "DECISION PERIOD"). The Terminating Party
shall notify the Nonterminating Party of the date of termination, which date
shall not be earlier than sixty days after the Terminating Party given Notice of
its election to terminate nor later than the date of taking. If Notice of
Termination is not given within the Decision Period, the Lease shall continue in
full force and effect. The Minimum Monthly Rent shall be computed as the Minimum
Monthly Rent in effect prior to the taking times a fraction of which the
numerator is the number of square feet remaining in the Premises and the
denominator is the number of square feet in the Premises prior to the taking.
20.5 Restoration. If there is a partial taking of the Premises and this
Lease remains in full force and effect, Landlord shall make all necessary
restoration so that the Premises is returned as near as practical to its
condition immediately prior to the taking, but in no event shall Landlord be
obligated to expend more for such restoration than the extent of funds actually
paid to Landlord by the condemnor.
20.6 Award. Any award arising from the condemnation or the settlement
thereof shall belong and be paid to Landlord, including any award for the
leasehold value. Tenant may seek a separate award for Tenant's trade fixtures,
tangible personal property and relocation expenses, if specified in the award by
the condemning authority and so long as it does not reduce Landlord's award.
ARTICLE 21. PARKING
Landlord shall have the right by Notice to Tenant, to specify areas of the
Complex for employee parking. If Landlord so designates an employee parking
area, then automobiles of Tenant, its employees and agents must park within the
parking areas specified by Landlord as employee parking. Tenant shall be
entitled to park in common with other tenants of Landlord. Tenant agrees not to
overburden the parking facilities and agrees to cooperate with Landlord and
other tenants in the use of parking facilities. Landlord reserves the right in
its sole discretion to determine if parking facilities are becoming crowded and
to allocate and assign parking spaces among Tenant and other tenants. Upon
request, Tenant shall provide Landlord with the license plate numbers of its
employees. Tenant shall not at any time park its trucks or other delivery
vehicles in the Common Area, except in such areas designated by Landlord.
Landlord hereby agrees that Tenant shall have the non-exclusive use of not less
than thirty-seven (37) parking spaces in the Complex.
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ARTICLE 22. ENTRY BY LANDLORD
Tenant shall permit Landlord and any mortgagee under a mortgage or beneficiary
under a deed of trust encumbering the Building and their agents (each a
"LENDER") to enter the Premises at all reasonable times for the purpose of (a)
inspecting them, (b) maintaining the Building, (c) making repairs, replacements,
alterations or additions to any portion of the Building, including the erection
and maintenance of such scaffolding, canopies, fences and props as may be
required, (d) posting notices of non-responsibility for alterations, additions
or repairs, (e) placing upon the Building any usual or ordinary "for sale" signs
and showing the space to prospective purchasers, investors and lenders, or (f)
placing on the Premises "to lease" signs or marketing and showing the Premises
to prospective tenants at any time Tenant is in uncured default hereunder or
otherwise within 180 days prior to the expiration of this Lease, without any
rebate of Rent and without any liability to Tenant for any loss of occupation or
quiet enjoyment of the Premises thereby occasioned.
ARTICLE 23. SIGNS
Tenant shall not place on the Premises or Complex any exterior signs or
advertisements nor any interior signs or advertisements that are visible from
the exterior of the Premises, without Landlord's prior written consent, which
Landlord may withhold in its sole discretion. The cost of installation and
maintenance of any approved signs shall be at the sole expense of Tenant. At the
end of the Term, Tenant shall remove all its signs and damage caused by the
removal shall be repaired at Tenant's expense.
ARTICLE 24. DEFAULT
24.1 Tenant Default. The occurrence of any of the following shall
constitute a default and breach of this Lease by Tenant:
(a) Any failure by Tenant to pay when due the Rent or any other
required payment;
(b) Tenant's failure to observe or perform any Lease provision where
such failure continues for ten days after Notice thereof to Tenant; provided, if
the nature of the default is such that it cannot reasonably be cured within the
ten-day period, Tenant shall not be deemed in default if, in the ten-day period,
Tenant commences to cure and thereafter diligently prosecute the cure to
completion;
(c) If at any time during the Term there shall be filed by or
against Tenant a petition in bankruptcy or insolvency or for reorganization or
for the appointment of a receiver or trustee of all or a portion of Tenant's
property, or if a receiver or trustee takes possession of any of the assets of
Tenant, or if the leasehold interest herein passes to a receiver, or if Tenant
makes an assignment for the benefit of creditors or petitions for or enters into
an arrangement;
(d) Any attempted Transfer in violation of Article 7; or
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(e) Tenant fails to take possession of the Premises on the
Commencement Date or Tenant vacates or abandons the Premises.
24.2 Landlord Default. Landlord shall be in default if it fails to observe
or perform any of the covenants, conditions or provisions of this Lease for a
period longer than 30 days after Notice from Tenant; provided, however, that if
more than 30 days is required for performance, Landlord shall not be in default
if it commences performance within 30 days of Tenant's Notice and thereafter
completes such performance diligently and within a reasonable time.
ARTICLE 25. REMEDIES UPON DEFAULT
25.1 Termination and Damages. In the event of any Tenant default, in
addition to any other remedies available to Landlord herein or at law or in
equity, Landlord shall have the immediate option to terminate this Lease and all
rights of Tenant hereunder by giving Notice of such intention to terminate. If
Landlord shall elect to so terminate this Lease, then Landlord may recover from
Tenant:
(a) The worth at the time of award of any unpaid Rent which had been
earned at the time of such termination; plus
(b) The worth at the time of award of the amount by which the unpaid Rent
which would have been earned after termination until the time of award exceeds
the amount of such Rent loss Tenant proves could have been reasonably avoided.
As used in subsections 25.1(a) and (b) the "worth at the time of award" is
computed by including interest at ten percent per annum; plus
(c) The worth at the time of award (computed by discounting such amount at
the discount rate at the time of award of the Federal Reserve Bank for the State
plus one percent) of the amount by which the unpaid Rent for the balance of the
term after the time of award exceeds the amount of such Rent loss that Tenant
proves could be reasonably avoided; plus
(d) Any other amount necessary to compensate Landlord for the detriment
proximately caused by Tenant's failure to perform its obligations under this
Lease; and
(e) At Landlord's election, such other amounts in addition to or in lieu
of the foregoing as may be permitted by applicable State law.
25.2 Personal Property. In the event of default by Tenant, Landlord shall
have the right, with or without terminating this Lease, to reenter the Premises
and remove all persons and property from the Premises. Such properly may be
stored in a public warehouse at the cost of and for the account of Tenant.
25.3 Recovery of Rent; Reletting.
(a) In the event of the abandonment of the Premises by Tenant or if
Landlord elects to either reenter as provided in Section 25.2 or take possession
of the Premises pursuant to legal proceeding or pursuant to any notice provided
by law, then if Landlord does not elect to
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terminate this Lease as provided in Section 25.1, this Lease shall continue in
effect, and Landlord may enforce all its rights and remedies under this Lease,
including Landlord's right from time to time, without terminating this Lease, to
either recover all Rent as it becomes due or relet the Premises or any part
thereof for such term or terms and at such Rent and upon such other terms and
conditions as Landlord, in its sole discretion may deem advisable with the right
to make alterations and repairs to the Premises. Acts of maintenance or
preservation or efforts to relet the Premises or the appointment of a receiver
upon initiation of Landlord or other legal proceeding granting Landlord or its
agent possession in protect Landlord's interest under this Lease shall not
constitute a termination of Tenant's right to possession.
(b) If landlord elects to relet, the Rent received by Landlord from
reletting shall be applied in the following order: (1) to the payment of any
indebtedness other than Rent due hereunder from Tenant; (2) to the payment of
any cost of reletting, including brokerage fees; (3) to the payment of the cost
of any alterations and repairs to the Premises; (4) to the payment of Rent due
and unpaid hereunder; and (5) any residue shall be held by Landlord and applied
in payment of future Rent as the same may become due and payable hereunder. If
the portion of Rent received under clause (b) (4) is less than the Rent payable
during that month by Tenant hereunder, Tenant shall pay such deficiency to
Landlord immediately upon demand. Tenant shall also pay to Landlord when
ascertained, any costs and expenses incurred by Landlord in such reletting or in
making such alterations and repairs not covered by the Rents received from such
reletting.
(c) No reentry or taking possession of the Premises or any other
action under this Section shall be construed as an election to terminate this
Lease unless a Notice of such intention be given to Tenant or unless the
termination thereof be decreed by a court of competent jurisdiction.
Notwithstanding any reletting without termination by landlord because of any
default by Tenant, Landlord may at any time after such reletting elect to
terminate this Lease for any such default.
(d) Landlord has the remedy described in California Civil Code
("CODE") Section 1951.4 (Landlord may continue Lease in effect after Tenant's
breach and abandonment and recover Rent as it becomes due, if Tenant has right
to sublet or assign, subject only to reasonable limitations).
25.4 No Waiver. Efforts by Landlord to mitigate the damages caused by
Tenant's default in this Lease shall not constitute a waiver of Landlord's right
to recover damages hereunder.
25.5 Curing Defaults. If Tenant fails to repair, maintain, keep clean, or
service any of the Premises or fails to perform any other Lease obligation, then
alter having given Tenant reasonable Notice of any failure and a reasonable
opportunity to remedy the failure, which in no case shall exceed ten days,
Landlord may enter upon the Premises and perform or contract for the performance
of the repair, maintenance, or other Tenant obligation, and Tenant shall pay
Landlord as Additional Rent all direct and indirect costs incurred in connection
therewith within ten days of receiving a xxxx therefor from Landlord.
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25.6 Cumulative Remedies. The various rights, options, election
powers, and remedies of Landlord contained in this Article and elsewhere in this
Lease are cumulative. None of them is exclusive of any others or of any legal or
equitable remedy that Landlord might otherwise have in the event of breach or
default, and the exercise of one right or remedy by Landlord will not in any way
impair its right to any other right or remedy.
ARTICLE 26 FORFEITURE OF PROPERTY
Tenant agrees that as of the date of termination of this Lease or repossession
of the Premises by Landlord, by way of default or otherwise, Tenant shall remove
all personal property in accordance with applicable law. The Parties agree that
any property of Tenant not removed by such date shall, at the option of
Landlord, be deemed abandoned by Tenant.
ARTICLE 27. SURRENDER OF LEASE
The voluntary or other surrender of this Lease by Tenant, or a mutual
cancellation thereof, shall not work as a merger. At the election of Landlord,
it shall either terminate all or any existing subleases or subtenancies or
operate as an assignment to Landlord of any or all such subleases or
subtenancies. Tenant shall return the Premises to Landlord at the expiration or
earlier termination of this Lease in good and sanitary order, condition and
repair, free of rubble and debris, broom clean, reasonable wear and tear
excepted. Tenant shall ascertain from Landlord at least 30 days prior to the
termination of this lease, whether Landlord desires the Premises, or any part
thereof, restored to its condition prior to the making of Alterations,
installations and improvements, and if Landlord shall so desire, then Tenant
shall forthwith restore said Premises or the designated portions thereof, as the
case may be, to its original condition, entirely at its own expense, excepting
normal wear and tear. All damage to the Premises caused by the removal of trade
fixtures and personal property that Tenant is permitted to remove under the
terms of this Lease shall be promptly repaired by Tenant at its sole cost and
expense.
ARTICLE 28. LANDLORD'S EXCULPATION
In the event of default, breach, or violation by Landlord or Landlord Parties of
any of Landlord's obligations under this Lease, Landlord's liability to Tenant
shall be limited to its ownership interest in the Building or the proceeds of a
public sale of such interest pursuant to foreclosure of a judgment against
Landlord. Landlord shall not be personally liable for any deficiency beyond its
interest in the Building.
ARTICLE 29. NOTICES
All notices required or permitted to be given under this Lease ("NOTICE"), shall
be in writing and shall be given or made to the respective party at the address
or number set forth in Sections 1.2 and 1.3 of this Lease by (i) personal
service; (ii) mailing by registered or certified mail, return receipt requested,
postage prepaid; (iii) reputable courier which provides written evidence of
delivery; or (iv) facsimile with the date and time imprinted during
transmission. Either Party may change its address for Notice by a Notice sent to
the other. Each Notice shall be deemed given or made upon receipt or refusal to
receive.
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ARTICLE 30. SUBORDINATION
30.1 Priority of Encumbrances. This Lease shall be subordinate to any
ground lease, first mortgage, or first deed of trust upon the real property of
which the Premises are a part (each a "SECURITY INSTRUMENT") and to any and all
advances made on the security thereof and to all renewals, modifications,
consolidations, replacements and extensions thereof. Notwithstanding such
subordination, Tenant's right to quiet possession of the Premises shall not be
disturbed if Tenant is not in default and so long as Tenant shall pay the Rent
and observe and perform all the provisions of this Lease, unless this Lease is
otherwise terminated pursuant to its terms. If a Lender or ground lessor gives
Tenant Notice of its election to have this Lease prior to the lien of its
Security Instrument, this Lease shall be deemed prior to such Security
Instrument, whether this Lease is dated prior or subsequent to the date of said
Security Instrument or the date of recording thereof.
30.2 Execution of Documents. Tenant agrees that no documentation other
than this Lease is required to evidence such subordination, however, Tenant
agrees to execute any documents required to effectuate such subordination and
any attornment or to make this Lease prior to the lien of any Security
Instrument, as the case may be. Tenant agrees that its failure to execute these
documents may cause Landlord serious financial damage by causing the failure of
a financing or sale transaction.
30.3 Attornment. If a Lender or ground lessor enforces its remedies
provided by law or under the pertinent Security Instrument and succeeds to
Landlord's interest in the Premises (a "SUCCESSOR-IN-INTEREST"), Tenant shall,
upon request of any Successor-in-Interest, automatically become the tenant of
said Successor-in-Interest without change in the terms or other provisions of
this Lease. The Successor-in-Interest shall not be (i) bound by any payment of
Rent for more than 30 days in advance; (ii) bound by any modification or
amendment of this Lease to shorten the term or decrease the Minimum Monthly Rent
without the consent of the Lender or ground lessor; (iii) liable for any act or
omission of Landlord or any previous landlord; (iv) bound by any obligation of
Landlord under the Lease that is not reasonably susceptible to performance by
the Successor-in-Interest; (v) subject to any offset, defense, recoupment or
counterclaim that Tenant may have given to Landlord or any previous landlord; or
(vi) liable for any deposit that Tenant may have with respect to Landlord or
previous landlord that has not been transferred to the Successor-in-Interest.
Within ten days after Notice of a request by Successor-in-Interest, Tenant shall
deliver an executed attornment agreement in a form required by such
Successor-in-Interest.
ARTICLE 31. ESTOPPEL CERTIFICATES
31.1 Execution by Tenant. Within ten days after receipt of Notice by
Landlord, Tenant shall execute and deliver to Landlord an estoppel certificate
acknowledging such facts regarding this Lease as Landlord may reasonably
require, including that (i) this Lease is in full force and effect, binding and
enforceable in accordance with its terms and unmodified (or if modified,
specifying the written modification documents); (ii) no default exists on the
part of Landlord or Tenant under this Lease; (iii) there are no events which
with the passage of time, or the giving of notice, or both, would create a
default under this Lease; (iv) no Rent in excess of one month's
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Rent has been paid in advance; (v) Tenant has not sold, assigned, transferred,
mortgaged or pledged this Lease or the Rent nor has it received notice of same;
(vi) Tenant has no defense, setoff, recoupment or counterclaim against Landlord,
and (vi) such other matters as Landlord may reasonably request. Landlord, any
Lender, or any prospective purchaser of the Building or Complex may rely upon
such estoppel certificate. Failure to comply with this Article shall be a breach
of this Lease by Tenant giving Landlord all rights and remedies under Article 25
hereof, as well as a right to damages caused by the loss of a loan or sale which
may result from such failure by Tenant.
31.2 Financing, Sale or Transfer. If Landlord desires to finance,
refinance, sell, ground lease or otherwise transfer the Premises, Building or
Complex, or any part thereof, Tenant agrees, within ten days of request therefor
by Landlord, to deliver to Landlord and to any lender or to any prospective
buyer, ground lessor or other transferee designated by Landlord financial
statements of Tenant and any parent company as may be reasonably required by
such party. Such statements shall include the past three years' financial
statements of Tenant. All such financial statements shall be received by
Landlord in confidence and shall be used only for the purposes herein set forth.
ARTICLE 32. LENDER PROTECTION
Tenant agrees to give any Lender, by registered mail, a copy of any notice of
default served upon Landlord, provided that prior to such notice Tenant has been
given Notice of the address of such Lender. Tenant agrees that if Landlord fails
to cure the default within the time provided for in this Lease, Lender shall
have an additional 30 days within which to cure the default or, if the default
cannot be cured within that time, then such additional time as may be necessary
if, within the 30 days, Lender has commenced and is diligently pursuing the
remedies necessary to cure the default (including commencement of foreclosure
proceedings, if necessary). This Lease shall not be terminated while such
remedies are being pursued.
ARTICLE 33. BANKRUPTCY
If at any time during the Term (1) there shall be filed by or against Tenant, in
any court, pleadings to initiate a bankruptcy petition of any kind, or the
appointment of a receiver or trustee of all or a portion of Tenant's assets, or
(2) if a receiver or trustee takes possession of any of the assets of Tenant, or
if the leasehold interest herein passes to a receiver or trustee, or (3) if
Tenant makes an assignment for the benefit of creditors or petitions for or
enters into an arrangement with creditors (any of which are referred to herein
as a "BANKRUPTCY EVENT"), then the following provisions shall apply:
(a) Any receiver, assignee for the benefit of creditors
("assignee"), trustee of any kind, or Tenant as debtor-in-possession ("debtor")
shall either expressly assume or reject this Lease within sixty days following
the assignment to the Assignee or the filing of the pleading initiating the
receivership or bankruptcy ease. All such parties agree that they will not seek
Court permission to extend such time for assumption or rejection. Failure to
assume or reject in the time set forth herein shall mean that the Lease may be
terminated at Landlord's option.
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(b) if the Lease is assumed by a debtor, receiver, assignee or
trustee, such party shall immediately after such assumption (i) cure any default
or provide adequate assurances that defaults will be promptly cured; (2) pay
Landlord for actual pecuniary less or provide adequate assurances that
compensation will be made for such loss; and (3) provide adequate assurance of
future performance.
(c) Where a default exists under the Lease, the party assuming the
Lease may not require Landlord to provide services or supplies incidental to the
Lease before its assumption by such trustee or debtor, unless Landlord is
compensated under the terms of the Lease for such services and supplies provided
before the assumption of such Lease.
(d) Landlord reserves all remedies available to Landlord in Article
26 or at law or in equity in respect of a Bankruptcy Event by Tenant, to the
extent such remedies are permitted by law.
ARTICLE 34. MISCELLANEOUS PROVISIONS
34.1 Captions. The captions of this Lease are for convenience only and are
not a part of this Lease and do not in any way limit or amplify the terms and
provisions of this Lease.
34.2 Construction. Whenever the singular number is used in this Lease and
when required by the context, the same shall include the plural, the plural
shall include the singular. Items following the terms "include" or "including"
are descriptive only and not by way of limitation. All approvals to be given by
any party to the Lease are not to be unreasonably withheld, conditioned or
delayed unless specifically indicated to the contrary in the Lease.
34.3 Modifications. This instrument contains all the agreements,
conditions and representations made between the Parties and may only be modified
by a written agreement signed by all of the Parties.
34.4 Severability. The invalidity of any provision of this Lease, as
determined by a court of competent jurisdiction, shall in no way affect the
validity of any other provision hereof.
34.5 No Offer. The preparation and submission of a draft of this Lease by
either party to the other shall not constitute an offer, nor shall either party
be bound to any terms of this Lease or the entirety of the Lease itself until
the Parties have fully executed a final document and an original signature
document has been received by the Parties. Until such time as described in the
previous sentence, either party is free to terminate negotiations with no
obligation to the other.
34.6 Light, Air and View. No diminution of light, air, or view by any
structure, whether or not erected by Landlord, shall entitle Tenant to any
reduction of Rent, result in any liability of Landlord to Tenant, or in any
other way affect this Lease or Tenant's obligations hereunder.
34.7 Public Transportation Information. If required by law, Tenant shall
establish and maintain a program to encourage maximum use of public
transportation by Tenant personnel
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employed on the Premises. Tenant shall comply with all requirements of any local
transportation management ordinance.
34.8 Rules and Regulations. Tenant will comply with all reasonable Rules
and Regulations adopted and promulgated by Landlord and applicable to all
tenants in the Building or Complex. The "RULES AND REGULATIONS" concerning the
Complex are attached hereto as Exhibit E. Landlord reserves the right to change
the Rules and Regulations affecting the Complex. Landlord shall have no
liability for violation of any Rules or Regulations by any other tenant in the
Complex nor shall such violation or waiver thereof excuse Tenant's compliance.
All delivery and dispatch of supplies, fixtures, equipment and furniture shall
be by means and during hours established by Landlord.
34.9 Joint and Several Liability. Should Tenant consist of more than one
person or entity, they shall be jointly and severally liable on this Lease.
34.10 Survival. All obligations of Tenant which may accrue or arise during
the Term of this Lease or as a result of any act or omission of Tenant during
the Term shall, to the extent they have not been fully performed, satisfied or
discharged, survive the expiration or termination of this Lease.
34.11 Brokers. Landlord and Tenant each represent and warrant to the other
party that it has not authorized or employed, or acted by implication to
authorize or employ, any real estate broker or salesmen to act for it in
connection with this Lease, except for the Broker identified in Article 1.
Landlord and Tenant shall each indemnify, defend and hold the other party
harmless from and against any and all claims by any real estate broker or
salesman whom the indemnifying party authorized or employed, or acted by
implication to authorize or employ, to act for the indemnifying party in
connection with this Lease.
34.12 Non-liability of Landlord. Except as otherwise expressly stated in
this Lease, and only to the extent so stated, the consent or approval, whether
express or implied, or the act, failure to act or failure to object, by Landlord
in connection with any plan, specification, drawing, proposal, request, act,
omission, notice or communication (collectively "act") by or for, or prepared by
or for, Tenant, shall not create any responsibility or liability on the part of
Landlord, and shall not constitute a representation by Landlord, with respect to
the completeness, sufficiency, efficacy, propriety, quality or legality of such
act. Notwithstanding anything to the contrary contained in this Lease, if any
provision of this Lease expressly or impliedly obligates Landlord not to
unreasonably withhold its consent or approval, an action for declaratory
judgment or specific performance will be Tenant's sole right and remedy in any
dispute as to whether Landlord has breached such obligation.
34.13 Attorneys' Fees. In the event of litigation or arbitration between
the Parties with respect to this Lease, then all costs and expenses, including
all reasonable fees of appraisers, accountants, experts, consultants and
attorneys (collectively "PROFESSIONAL FEES") incurred by the prevailing party
shall be paid by the other party. If Landlord is named as a defendant, or
requested or required to appear as a witness or produce any documents in any
suit brought by Tenant against a third party or a third party suit against
Tenant arising out of Tenant's occupancy
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hereunder, Tenant shall pay Landlord its costs and expenses incurred in such
suit, including its actual Professional Fees.
34.14 Effect of Waiver. Landlord's waiver of any breach of a Lease
provision is not a waiver of such Lease provision or any subsequent breach of
the same or any other term, covenant or condition of the Lease. Subsequent
acceptance of Rent by Landlord is not a waiver of any preceding breach by Tenant
of any provision of this Lease, other than the failure of Tenant to pay the
particular Rent so accepted, regardless of Landlord's knowledge the preceding
breach at the time of acceptance of Rent.
34.15 Holding-Over. If Tenant remains in possession of the Promises after
the expiration of the Term, with Landlord's written consent, then such holding
over shall be construed as a month-to-month tenancy, subject to all the
conditions, provisions and obligations of this Lease (as applicable to a
month-to-month tenancy) as existed during the last month of the Term, except the
Minimum Monthly Rent shall be equal to twice the Minimum Monthly Rent then
payable. Such tenancy may be terminated by either party upon ten days' Notice
prior to the end of any monthly period. Any option or right to extend, renew or
expand shall not be applicable. Landlord's acceptance of Rent after such
expiration or termination shall not constitute a holdover hereunder or result in
a renewal of this Lease.
34.16 Binding Effect. The covenants and conditions of this Lease, subject
to the provisions as to assignment, apply to and bind the heirs, successors,
executors, administrators and assigns the Parties.
34.17 Time of the Essence. Time is of the essence of this Lease.
34.18 Release of Landlord. If Landlord sells its interest in the Building
or Complex, then from and after the effective date of the sale or conveyance,
Landlord shall be released and discharged from any and all obligations and
responsibilities under this Lease except those already accrued.
34.19 Transfer to Purchaser. If Tenant provides security fm the faithful
performance of any of its covenants of the Lease, Landlord may transfer the
security to a purchaser of the reversion, if the reversion be sold, and
thereupon Landlord shall be discharged from any further liability in reference
thereto.
34.20 Waiver by Tenant. The Parties have negotiated numerous provisions of
this Lease, some of which are covered by statute. Whenever a provision of this
Lease and a provision of any statute or other law cover the same matter, the
provisions of this Lease shall control. Therefore, Tenant waives (for itself and
all persons claiming under Tenant) the provisions of Code Sections 1932(2) and
1933(4) with respect to the destruction of the Premises; Code Sections 1941 and
1942 with respect to Landlord's repair duties and Tenant's right to repair, Code
Section 1995.310 with respect to remedies for breach of contract; Code Section
3275 and CCP Section 1179 relating to rights of redemption; and CCP Section
1265.130, allowing either party a Court petition to terminate this Lease in the
event of a partial taking of the
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Premises by condemnation. This waiver applies to future statutes enacted in
addition to or in substitution for the statutes specified.
34.21 Waiver of Jury Trial. Landlord and Tenant hereby waive trial by jury
in any action, proceeding or counterclaim brought by either of the Parties
against the other on any matters whatsoever arising out of this Lease, or any
other claims.
34.22 Authorization. If Tenant is a corporation, partnership or limited
liability company, each person executing this Lease on behalf of such entity
represents and warrants (i) that he or she is duly authorized to execute this
Lease on behalf of such entity, (a) if a corporation, in accordance with either
a duty adopted resolution of its Board of Directors or its Bylaws; (b) if a
partnership, in accordance with its partnership agreement; or (c) if a limited
liability company, in accordance with its limited liability company agreement
and (ii) that this Lease is binding upon Tenant in accordance with its terms.
34.23 Conversion to a Limited Liability Entity. If Tenant is a partnership
(either general or limited), joint venture, cotenancy, joint tenancy or an
individual, Tenant may not convert (the "CONVERSION") the Tenant entity or
person into any type of entity which possesses the characteristic of limited
liability such as, by way of example only, a corporation, a limited liability
company, limited liability partnership or limited liability limited partnership
(a "LIMITED ENTITY") without the consent of Landlord, subject to fulfillment of
the conditions below. The following are conditions precedent to Landlord's
obligation to act reasonably with respect to a Conversion to a Limited Entity:
(i) the Limited Entity assumes all of Tenant's liabilities and is assigned all
of Tenant's assets as of the effective date of the Conversion; (ii) as of the
effective date of the Conversion, the Limited Entity shall have a net worth
("NET WORTH"), which is not less than either (a) Tenant's Net Worth on the date
of execution of the Lease or (b) Tenant's Net Worth as of the date Tenant
requests consent to the Conversion; (iii) Tenant is not in default under the
Lease; (iv) Tenant delivers to Landlord a satisfactory agreement, executed by
each equity interest holder of Tenant, wherein each agrees to remain personally
liable for all of the terms, covenants and conditions of the Lease; and (v)
Tenant reimburses Landlord within ten days of Landlord's written demand for any
and all reasonable costs and expenses that may be incurred by Landlord in
connection with the Conversion including, without limitation, reasonable
attorneys' fees.
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In Witness Whereof, the Parties have executed this Lease as of the date
first written above.
"LANDLORD" "TENANT"
BEDFORD PROPERTY INVESTORS, INC., A PINE PHOTONICS COMMUNICATIONS, INC., A
MARYLAND CORPORATION DELAWARE CORPORATION
By: By: /s/ Hsing Kung
-------------------------------- -----------------------------------
Name: Name: Hsing Kung
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Title: Title: CEO & President
-----------------------------
Date: Date: 7/10/00
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FOR OFFICE USE ONLY:
PREPARED BY: ___
REVIEWED BY: ___
APPROVED BY: ___
/s/
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ADDENDUM NO. 1
LETTER OF CREDIT AS DEPOSIT SECURITY
This ADDENDUM NO. 1 (this "ADDENDUM") is made in connection with and is a
part of that certain Lease, dated as of June 30, 2000, by and between Bedford
Property Investors, Inc., a Maryland corporation, as Landlord, and Pine
Photonics Communications, Inc., as Tenant, (the "LEASE").
1. Definitions and Conflict. All capitalized terms referred to in this
Addendum shall have the same meaning as provided in the Lease, except as
expressly provided to the contrary in this Addendum. In case of any conflict
between any term or provision of the Lease and any exhibits attached thereto and
this Addendum, this Addendum shall control.
2. Letter of Credit Security Deposit. Pursuant to the terms of the Lease,
a Security Deposit of $307,839.11 is required from Tenant. In lieu of depositing
cash for the full amount of the Security Deposit, Tenant shall deposit a letter
of credit for $$307,839.11 (the "MAXIMUM LETTER OF CREDIT AMOUNT"), with the
balance of the Security Deposit in the form of cash. Said letter of credit shall
be in the form of an irrevocable, unconditional and clean standby letter of
credit and otherwise in the form set forth below (the "LETTER OF CREDIT"). The
term Security Deposit shall mean the cash portion of the Security Deposit and
the Letter of Credit.
2.1 Form of Letter of Credit. The Letter of Credit shall be issued
by a national bank acceptable to Landlord in its reasonable discretion, with
offices in the San Francisco Bay Area that will accept and pay on any draw on
the Letter of Credit. The Letter of Credit shall be issued for a term of at
least twelve months (with a term during the last year of the Lease Term of at
least one full month following the expiration of the Lease Term) and shall be in
a form and with such content acceptable to Landlord in its sole and absolute
discretion. Any Letter of Credit that Tenant delivers to Landlord in replacement
of an existing Letter of Credit shall be in an amount equal to the replaced
Letter of Credit (prior to any draws) so that the cash and Letter of Credit
together equal the amount of the Security Deposit specified in the Lease. Any
such replacement Letter of Credit shall be delivered to and received by Landlord
no later than thirty days prior to the expiration of the term of the letter of
Credit then in effect. If Tenant fails to deposit a replacement Letter of Credit
or renew the expiring Letter of Credit, Landlord shall have the right to draw
upon the expiring Letter of Credit for the full amount thereof and hold the same
as Security Deposit; provided, however, that if Tenant provides a replacement
Letter of Credit that meets the requirements of this section, Landlord shall
promptly return to Tenant in cash that amount of the Letter of Credit that had
been drawn upon by Landlord. The Letter of Credit shall expressly permit full
and partial draws. If for any reason the Letter of Credit does not permit
partial draws, then Landlord shall have the right to make a full draw on the
Letter of Credit, notwithstanding that the full amount may not be required to
cure any default by Tenant. The Letter of Credit shall designate Landlord as
beneficiary and shall be transferable by beneficiary to any transferee,
successor, and assign (including any lender of Landlord) at no cost or expense
to beneficiary. The Letter of Credit shall provide that it may be drawn by
Landlord (or its assignee) upon presentation by Landlord to the issuing bank (at
its offices in the San Francisco Bay Area) of a sight draft(s), together with a
written statement executed by Landlord stating that
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the amount requested is due Landlord under the Lease. The amount of the draw
requested by Landlord shall be payable by the bank without further inquiry or
any other documentation or further action required of the bank, landlord, or
Tenant. All costs and expenses to obtain the Letter of Credit and all renewals
shall be borne by Tenant.
2.2 Landlord's Draw. If the Letter of Credit is drawn upon by
Landlord, Tenant shall, within ten days after written demand therefor, deposit
cash with Landlord in an amount sufficient to restore the Security Deposit to
amount required under the Lease and this Addendum. At all times the Security
Deposit, whether in the form of cash and/or Letter of Credit, shall be in the
amount specified in the Lease. The use, application or retention of the Letter
of Credit, or any portion thereof, by Landlord shall not prevent Landlord from
exercising any other right or remedy provided by this Lease or by law, it being
intended that Landlord shall not first be required to use all or any part of the
Letter of Credit or cash portion of the Security Deposit, and such use shall not
operate as a limitation on any recovery to which Landlord may otherwise be
entitled. Tenant shall not be entitled to any interest on the cash portion of
the Security Deposit. The exercise of any rights of Landlord to the Security
Deposit shall not constitute a waiver of nor relieve Tenant from any liability
or obligation for any default by Tenant. If Landlord draws upon the entire
amount of the Letter of Credit, Tenant may deliver a replacement Letter of
Credit to Landlord, instead of depositing cash with Landlord, equal to the
original amount of the Letter of Credit.
2.3 Return or Transfer of Letter of Credit. Within thirty days after
the expiration or earlier termination of the Lease and provided Tenant has
complied with all of its obligations under the Lease, Landlord shall promptly
return the refundable portion of the Security Deposit, including the Letter of
Credit, to Tenant. In the event of a transfer of the Premises, Building or
Project by Landlord, Landlord or any subsequent transferor shall deliver the
refundable portion of the Security Deposit, including both the cash portion and
the Letter of Credit, to the successor landlord or transferee.
/s/
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EXHIBIT A
LEGAL DESCRIPTION
REAL PROPERTY in the City of Fremont, County of Alameda, State of California,
described as follows:
Xxxx 0, 0, xxx 0, Xxxxx 0000, filed August 30, 1979 in Book 112 of Maps, Page
85, Alameda County Records.
APN Nos.: 000-0000-000 and 000-0000-000-00
/s/
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EXHIBIT B
PLAN OF THE COMPLEX
(PLAN OF THE COMPLEX GRAPHIC)
/s/
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EXHIBIT B-1
FLOOR PLAN OF THE PREMISES
(NOT AVAILABLE)
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EXHIBIT C
CONSTRUCTION OBLIGATIONS
1. DEFINED TERMS. All capitalized terms referred to in this Exhibit C
(this "Agreement") not defined below shall have the same meaning as defined in
the Lease of which this Agreement forms a part.
2. CONSTRUCTION OF TENANT IMPROVEMENTS. Tenant shall construct the Tenant
Improvements in accordance with this Agreement and due approved Construction
Plans.
3. DEFINITIONS. Each of the following terms shall have the following
meaning:
"ARCHITECT" shall mean ____________________. Architect shall be employed
by Tenant and all costs of Architect will be the responsibility of Tenant as
part of the Tenant Improvement Cost.
"LANDLORD'S ALLOWANCE" shall mean the amount to be contributed by
Landlord toward Tenant Improvement Cost as stated in Section 1.12 of the Lease.
Notwithstanding anything to the contrary contained herein or in the Lease, in no
event shall Landlord have any obligation to pay any costs or expenses incurred
in connection with or arising out of the Tenant Improvements in excess of the
Landlord's Allowance specified herein.
"BUILDING" shall mean the Building Shell and the Tenant
Improvements.
"BUILDING SHELL" shall mean the basic minimum enclosure of the
Building consisting of the foundation and floors, structural framework, roof
coverings, exterior walls and exterior doors and windows, basic fire sprinkler
systems, plumbing system stubs, underground electrical power stubs, the parking
lots and landscaping appurtenant to the Common Areas, but excluding all Tenant
Improvements.
"CONSTRUCTION PLANS" shall mean the complete plans and
specifications for the construction of the Tenant Improvements, which shall be
in substantial compliance with the Approved Preliminary Plans, consisting of all
architectural, engineering mechanical and electrical drawings and specifications
which are required to obtain all building permits, licenses and certificates
from the applicable governmental authority(ies) for the construction of the
Tenant Improvements. The Construction Plans shall be prepared by Architect, and
in all respects shall be in compliance with all applicable laws, rules,
regulations, and building codes for the City of Fremont, California.
"CONTRACTOR" shall mean a California licensed general contractor
with experience and expertise in constructing projects similar to the Tenant
Improvements as mutually agreed to by Landlord and Tenant pursuant to Section 6,
below. Contractor shall be responsible for construction of the Tenant
Improvements.
"PREMISES" shall mean the portion of the Building Shell wherein the
Tenant Improvements are to be constructed. Landlord shall deliver the Premises
to Tenant in broom clean condition, with all building systems existing as of the
date of execution of this Lease in
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good working order and repair, and otherwise in "AS-IS WHERE-IS" condition.
Tenant acknowledges that the Base Tenant Improvement Allowance is provided to
Tenant by Landlord for the purpose of remodeling and/or rehabilitating the
Premises, and other than providing the Base Tenant Improvement Allowance in the
time and manner provided for herein, Landlord shall have no responsibility for
the condition of the Premises or the improvements located therein.
"TENANT'S PERSONAL PROPERTY" shall mean all personal property
constructed or installed in the Promises by Tenant at Tenant's expense,
including furniture, fixtures, equipment and all data and telephone cabling to
be constructed or installed in the Premises by Tenant, but excluding the Tenant
improvements.
"TENANT IMPROVEMENTS" shall mean all interior portions of the
Building to be constructed by Tenant pursuant to this Agreement and the Approved
Construction Plans, including but not limited to, electrical systems, heating,
ventilating and air conditioning systems ("HVAC"), plumbing and fire sprinkler
systems (to the extent such electrical, HVAC, plumbing and fire sprinkler
systems are not included in the Building Shell), interior partitions, millwork,
floor coverings, acoustical ceilings, interior painting, and similar items.
"TENANT IMPROVEMENT COST" shall mean the costs for construction and
installation of the Tenant Improvements, inclusive of the fees charged by
Architect. The costs for construction and installation shall include, but not be
limited to, the following:
(a) architectural / space planning fees and costs charged by
Architect in the preparation of the Preliminary Plans, Construction Plans and/or
any Change Requests;
(b) any and all other fees and costs charged by architects,
engineers and consultants in the preparation of the Construction Plans,
including mechanical, electrical, plumbing and structural drawings and of all
other aspects of the Construction Plans, and for processing governmental
applications and applications for payment, observing construction of the work,
and other customary engineering, architectural, interior design and space
planning services;
(c) surveys, reports, environmental and other tests and
inspections of the site and any improvements thereon necessary for the
construction of the Tenant Improvements;
(d) labor, materials, equipment and fixtures supplied by the
Contractor, its subcontractors and/or materialmen;
(e) the furnishing and installation of all HVAC duct work,
terminal boxes, distributing diffusers and accessories required for completing
the heating, ventilating and air conditioning system in the Premises, including
costs of meter and key control for after-hour usage;
(f) all electrical circuits, wiring, lighting fixtures, and
tube outlets furnished and installed throughout the Premises, including costs of
meter and key control for after-hour electrical power usage;
/s/
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(g) all window and floor coverings in the Premises:
(h) all fire and life safety control systems, such as fire
walls, sprinklers and fire alarms, including piping, wiring and accessories
installed within the Premises;
(i) all plumbing, fixtures, pipes and accessories installed
within the Premises;
(j) fees charged by the city and/or county where the Building
is located (including, without limitation, fees for building permits and plan
checks) required for the construction of the Tenant Improvements in the
Premises;
(k) all taxes, fees, charges and levies by governmental and
quasi-governmental agencies for authorization, approvals, licenses and permits;
and all sales, use and excise taxes for the materials supplied and services
rendered in connection with the installation and construction of the Tenant
Improvements;
(l) all costs and expenses incurred to comply with all Laws
and Regulations, as well as all rules, regulations or ordinances of any
governmental authority in connection with the construction of the Tenant
Improvements including, without limitation, any costs of complying with the ADA
in the Complex required as a condition to approving the construction of the
Tenant Improvements.
Tenant improvement Costs shall not include the cost of any of
Tenant's Personal Property or the installation thereof, which shall be performed
by Tenant at its sole cost and expense. Subject to the payment by Landlord of
the Base Tenant Improvement Allowance in the time and manner specified in
Section 12, below, Tenant shall be solely responsible for paying all Tenant
Improvement Costs.
4. SPACE PLAN FOR TENANT IMPROVEMENTS.
4.1 APPROVED PRELIMINARY PLAN. As soon as reasonably possible following
the full execution of this Agreement, the space plan ("Preliminary Plan") for
the Tenant Improvements shall be prepared by the Architect, and shall be
reviewed and approved by Landlord and Tenant (the "Approved Preliminary Plan").
The Approved Preliminary Plan shall be used by Architect to develop the
Construction Plans.
5. CONSTRUCTION PLANS FAR TENANT IMPROVEMENTS.
5.1 PREPARATION BY ARCHITECT. Within 20 days following completion of the
Approved Preliminary Plan, Architect shall provide Tenant and Landlord with
completed Construction Plans showing (i) Tenant's partition layout and the
location and details; (ii) the location of telephone and electrical outlets;
(iii) the location, style and dimension of any desired special lighting; (iv)
the location, design and style of all doors, floor coverings and wall coverings;
(v) the location, design, style and dimensions of cabinets and casework; and
(vi) all details, including "cut sheets," for the Tenant Improvements, which
shall be in conformity with the Approved Preliminary Plans. The Construction
Plans shall be in a form satisfactory to
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appropriate governmental authorities responsible for issuing permits and
licenses required for construction of the Tenant Improvements.
5.2 LANDLORD'S REVIEW OF CONSTRUCTION PLANS FOR TENANT Improvements.
Within ten (10) business days after receipt of the Construction Plans, Landlord
shall notify Tenant in writing of any changes necessary to bring the
Construction Plans into substantial conformity with the Approved Preliminary
Plans. If any changes requested by Landlord are reasonably necessary to bring
the Construction Plans into substantial conformity with the Approved Preliminary
Plans, Architect shall make such changes and provide the revised Construction
Plans to Landlord for its review and approval, such approval not to be
unreasonably withheld or delayed. Within ten (10) business days thereafter,
Landlord shall either (i) notify Tenant in writing of any changes necessary to
bring the Construction Plans into substantial conformity with the Approved
Preliminary Plans, or (ii) approve such revised Construction Plans. Architect
shall continue to revise the Construction Plans as required by Landlord and
Tenant until Landlord's and Tenant's written approval is received. The
Construction Plans approved in writing by both Landlord and Tenant shall be
deemed the "Approved Construction Plans."
6. CONTRACTOR. Tenant shall, as soon as reasonably possible, provide
Landlord with the names of not less than three (3) California licensed general
contractors with expertise and experience in constructing projects similar to
the Tenant Improvements. Upon request of Landlord, Tenant shall provide Landlord
with references for such contractors so that Landlord may verify such
contractors' expertise and ability to construct the Tenant Improvements.
Landlord shall have no obligation to approve any contractor proposed by Tenant
that either (i) does not possess sufficient experience and expertise in
constructing projects similar to the Tenant Improvements, or (ii) to which
Landlord otherwise makes reasonable objection. Following Landlord's written
approval of a Contractor, Tenant shall enter into a contract with the Contractor
for the construction of the Tenant Improvements (the "Construction Contract"),
for a bid price acceptable to Tenant in its sole discretion (the "Approved
Bid.") The Construction Contract between Tenant and Contractor shall provide
that all Tenant Improvements shall be warranted by Contractor for a period not
less than one (1) year, and shall provide that all such warranties are
assignable to, and enforceable by, Landlord. Landlord must approve the
Construction Contract before Tenant and Contractor execute the same, such
approval not to be unreasonably withheld.
7. BUILDING PERMIT. Tenant shall be responsible for obtaining a building
permit ("Building Permit") for the Tenant Improvements. To the extent requested
by Tenant, Landlord shall, at no cost or expense to Landlord, assist Landlord in
obtaining the Building Permit. Tenant, the Architect or the Contractor shall
submit the Approved Construction Plans to the appropriate governmental body for
plan checking and a Building Permit.
8. CHANGE REQUESTS. No changes to the Approved Construction Plans
requested by Tenant (each, a "Change Request") shall be made without Landlord's
prior written approval, which approval shall not be unreasonably withheld or
delayed, subject to the following:
(i) No Change Request shall affect the structure or operating
systems of the Building;
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(ii) A Change Request shall constitute an agreement by Tenant
to any delay in completion of the Tenant Improvements caused by reviewing,
processing and implementing the Change Request;
(iii) Any delays in completion of the Tenant Improvements
caused as a result of a Change Request shall not delay the commencement of the
term of the Lease from the Commencement Date specified in Section 1.7 of the
Lease. Tenant agrees that the Lease and all obligations of Tenant thereunder
(including without limitation the obligation to pay Rent) shall commence on the
Commencement Date specified in Section 1.7 of the Lease, notwithstanding any
delay in construction of the Tenant Improvements caused by any Change Request.
Any and all costs incurred in connection with a Change Request approved by
Landlord shall be paid for solely by Tenant, including, without limitation,
increased architectural or engineering fees and costs, permit re-submittal fees
and costs, increased construction costs, costs incurred as a result of any delay
in constructing the Tenant Improvements caused by the Change Request, costs
incurred by Landlord in having the proposed Change Request reviewed by third
parties, and any other costs and expenses incurred in connection with or arising
out of such Change Request.
9. PAYMENT OF ADDITIONAL COSTS. Following substantial completion of the
Tenant Improvements and determination of the total Tenant Improvement Cost, to
the extent the Tenant Improvement Cost exceeds the Landlord's Allowance (the
"Additional Costs"), and such Additional Costs have not previously been paid by
Tenant pursuant to Section 10, below, Tenant shall be solely responsible for
payment of such Additional Costs.
10. PAYMENT OF CONTRACTOR. Once Tenant and Contractor have mutually
executed the Construction Contract, Tenant shall be responsible for making
monthly progress payments to Contractor in accordance with the Construction
Contract, subject to reimbursement by Landlord pursuant to the following
procedure. Landlord shall reimburse Tenant each month, within twenty (20) days
of receipt of bills or invoices from Tenant representing the current months'
payment obligation to the Contractor (the "Monthly Payment"), for that portion
of the Monthly Payment determined by taking a fraction, the numerator of which
is the Landlord's Allowance, and the denominator of which is the Approved Bid,
and multiplying the Monthly Payment by such fraction. Tenant shall be solely
responsible for paying the balance of any Monthly Payment as Additional Costs.
If the total Approved Bid is in equal to or less than the sum of the Landlord's
Allowance, Landlord shall reimburse Tenant each month, within twenty (20) days
of receipt of bills or invoices from Tenant representing the current Monthly
Payment, for the entire Monthly Payment. It shall be a condition precedent to
Landlord's obligation to reimburse Tenant for any Monthly Payment that Tenant
shall have provided Landlord with unconditional lien releases and waivers from
the Contractor, any subcontractors and/or any material suppliers providing goods
or services for the Tenant Improvements, in the form required by California law,
whereby such Contractor, any subcontractors and/or any material suppliers
unconditionally waive any mechanics' or other statutory lien rights with respect
to the current and/or any prior Monthly Payment made or to be made by Landlord
to Tenant.
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11. REQUIREMENTS. All construction and installation of the Tenant
Improvements shall be subject to strict conformity with the following
requirements:
(a) Tenant shall give Landlord at least ten (10) days' prior written
notice of commencement of the construction of the Tenant Improvements so that
Landlord may post notices of non-responsibility in or upon the Premises as
provided by law;
(b) All Tenant improvements shall be constructed in a skillful and
workmanlike manner, consistent with the best practices and standards of the
construction industry, and pursued with diligence in accordance with the
Approved Construction Plans and in full accord with all applicable laws,
regulations and ordinances, including without limitation, the ADA. All material,
equipment, and articles incorporated in the Tenant Improvements are to be new,
and of recent manufacture, and of the most suitable grade for the purpose
intended;
(c) The Contractor shall maintain all of the insurance reasonably
required by Landlord, including, without limitation, commercial general
liability and workers' compensation insurance in the amounts specified in
Article 9 of the Lease, and builder's risk and course of construction insurance
in an amount not less than the total Tenant Improvement Costs. Tenant shall
provide Landlord with certificates of insurance evidencing such insurance
coverage by Contractor prior to commencing the construction of the Tenant
Improvements. Landlord and any other party in interest designated by Landlord
shall be named as an additional insured on the commercial general liability
policy, and Landlord shall be named as the loss payee on the builder's risk and
course of construction insurance.
(d) Landlord may require performance and labor and materialmen's
payment bonds issued by a surety approved by Landlord, in a sum equal to the
Tenant Improvement Costs, guarantying the completion of the Tenant Improvements
free and clear of all liens and other charges in accordance with the Approved
Construction Plans. Such bonds shall name Landlord as beneficiary;
(e) Construction of the Tenant Improvements must be performed in a
manner such that it will not interfere with the quiet enjoyment of the other
tenants in the Complex;
(f) Construction of the Tenant Improvements must be completed during
calendar year 2000.
12. LIENS. Tenant shall keep the Premises and the Complex in which the
Premises are situated free from any liens arising out of any work performed,
materials furnished or obligations incurred by Tenant in connection with the
construction of the Tenant Improvements. In the event a mechanic's or other lien
is filed against the Premises or the Complex as a result of a claim arising
through Tenant or the Tenant Improvements, Landlord may demand that Tenant
furnish to Landlord a surety bond satisfactory to Landlord in an amount equal to
at least one hundred fifty percent (150%) of the amount of the contested lien
claim or demand, indemnifying Landlord against liability for the same and
holding the Premises and Complex free from the effect of such lien or claim.
Such bond must be posted within ten (10) days following notice from Landlord. In
addition, Landlord may require Tenant to pay Landlord's attorneys' fees and
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costs in participating in any action to foreclose such lien if Landlord shall
decide it is to its best interest to do so. In any event, Tenant shall
indemnify, defend, protect and hold harmless Landlord from and against any and
all claims, demands, expenses, actions, judgments, damages, penalties, fines,
liabilities, losses, suits, costs and fees, including, but not limited to,
reasonable attorneys' fees and expenses, incurred in connection with or related
to a claim arising through Tenant or the Tenant Improvements.
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EXHIBIT D
ACKNOWLEDGEMENT OF COMMENCEMENT
This Acknowledgement is made as of __________ with reference to that certain
Lease Agreement (hereinafter referred to as the "Lease") dated, June 30, 2000,
by and between BEDFORD PROPERTY INVESTORS, INC., a Maryland corporation
"Landlord" therein, and PINE PHOTONICS COMMUNICATIONS, INC., a Delaware
corporation "Tenant", for the Premises situated at 000 XXXXXX XXXXX, XXXXXXX,
XXXXXXXXXX 00000.
The undersigned hereby confirms the following:
1. That the Tenant accepted possession of the Premises (as described in said
Lease) on__________, and acknowledges that the Premises are as represented by
the Landlord and in good order, condition and repair, and that the improvements,
if any, required to be constructed for Tenant by Landlord under this Lease have
been so constructed and are satisfactorily completed in all respects.
2. That all conditions of said Lease to be performed by Landlord prerequisite to
the full effectiveness of said Lease have been satisfied and that Landlord has
fulfilled all of its duties of an inducement nature.
3. That in accordance with the provisions of said Lease the commencement date of
the term is __________, and that, unless sooner terminated, the original term
thereof expires on __________.
4. That said Lease is in full force and effect and that the same represents the
entire agreement between Landlord and Tenant concerning said Lease.
5. That there are no existing defenses which Tenant has against the enforcement
of said Lease by Landlord, and no offsets or credits against rentals.
6. That the minimum rental obligations of said Lease is presently in effect and
that all rentals, charges and other obligations on the part of Tenant under said
Lease commenced to accrue on __________.
7. That the undersigned has not made any prior assignment, hypothecation or
pledge of said Lease or of the rents hereunder.
TENANT:
PINE PHOTONICS COMMUNICATIONS, INC.
A DELAWARE CORPORATION
BY:
-------------------------------
(PRINT):
--------------------------
ITS:
------------------------------
DATE:
-----------------------------
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EXHIBIT E
RULES AND REGULATIONS ATTACHED TO AND MADE
A PART OF THIS LEASE
1. No sign, placard, picture, advertisement, name of notice shall be
inscribed, displayed or printed or affixed on the Building or to any part
thereof, or which is visible from the outside of the Building, without the
written consent of Landlord, first had and obtained and Landlord shall
have the right to remove any such sign, placard, picture, advertisement,
name or notice without notice and at the expense of Tenant.
All approved signs or lettering on doors shall be printed, affixed or
inscribed at the expense of Tenant by a person approved by Landlord.
Tenant shall not place anything or allow anything to be placed near the
glass of any window, door, partition or wall which may appear unsightly
from outside the Premises.
2. If a directory is located at the Building, it is provided exclusively for
the display of the name and location of Tenant only and Landlord reserves
the right to exclude any other names therefrom.
3. The sidewalks, passages, exits, entrances, and stairways in and around
the Building shall not be obstructed by Tenant or used by it for any
purpose other than for ingress to and egress from the Premises. The
passages, exits, entrances, stairways, and roof are not for the use of
the general public and Landlord shall in all cases retain the right to
control and prevent access thereto by all persons whose presence in the
judgment of Landlord shall be prejudicial to the safety, character,
reputation and interests of the Building and its Tenants, provided that
nothing herein contained shall be construed to prevent such access to
person with whom Tenant normally deals in the ordinary course of
Tenant's business unless such persons are engaged in illegal
activities. Neither Tenant nor any employees or invitees of Tenant
shall go upon the roof of the Building.
4. Tenant shall not be permitted to install any additional lock or locks on
any door in the Building unless written consent of Landlord shall have
first been obtained. Two keys will be furnished by Landlord for every
room.
5. The toilets and urinals shall not be used for any purpose other than those
for which they were constructed, and no rubbish, newspapers or other
substances of any kind shall be thrown into them. Wastes and excessive or
unusual use of water shall not be allowed. Tenant shall be responsible for
any breakage, stoppage or damage resulting from the violation of this rule
by Tenant or its employees or invitees.
6. Tenant shall not overload the floor of the Premises or xxxx, drive nails,
screw or drill into the partitions, woodwork or plaster or in any way
deface the Premises or any part thereof.
7. Tenant shall not use, keep or permit to be used or kept any foul or
noxious gas or substance in the Premises, or permit or suffer the Premises
to be occupied or used in a manner offensive or objectionable to Landlord
or other occupants of the Building by
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reason of noise, odors and/or vibrations, or interfere in any way with
other Tenants or those having business therein.
8. The Premises shall not be used for the storage of merchandise, for washing
clothes, for lodging, or for any improper objectionable or immoral
purposes.
9. Tenant shall not use or keep in the Premises or the Building any kerosene,
gasoline, or inflammable or combustible fluid or material, or use any
method of heating or air conditioning other than that supplied by
Landlord.
10. Landlord will direct electricians as to the manner and location in which
telephone and telegraph wires are to be introduced. No boring or cutting
for wires will be allowed without the consent of Landlord. The location of
telephones, call boxes and other office equipment affixed to the Premises
shall be subject to the approval of Landlord.
11. Tenant shall not lay linoleum, tile, carpet or other similar floor
covering so that the same shall be affixed to the floor of the Premises in
any manner except as approved by Landlord. The expense of repairing any
damage resulting from a violation of this rule or removal of any floor
covering shall be borne by Tenant.
12. Exterior blinds are furnished for each window by Landlord. Any
additional window covering desired by Tenant shall be approved by
Landlord.
13. Landlord reserves the right to exclude or expel from the Building any
person who, in the judgment of Landlord, is intoxicated or under the
influence of liquor or drugs, or who shall in any manner do any act in
violation of any of the rules and regulations of the Building.
14. Tenant shall not disturb, solicit, or canvass any occupant of the
Building.
15. Without the written consent of Landlord, Tenant shall not use the name of
the Building in connection with or in promoting or advertising the
business of Tenant except as Tenant's address.
16. Tenant shall not permit any contractor or other person making any
alterations, additions or installations within the Premises to use the
hallways, lobby or corridors as storage or work areas without the prior
consent of Landlord. Tenant shall be liable for and shall pay the expense
of any additional cleaning or other maintenance required to be performed
by Landlord as a result of the transportation or storage of materials or
work performed within the Building by or for Tenant.
17. Tenant shall be entitled to use parking spaces as mutually agreed upon
between Tenant and Landlord subject to such reasonable conditions and
regulations as may be imposed from time to time by Landlord Tenant
agrees that vehicles of Tenant or its employees or agents shall not
park in driveways nor occupy parking spaces or other areas reserved for
any use such as Visitors, Delivery, Loading, or other tenants.
Landlord or its agents shall save the right to cause or be removed any
car or Tenant, its employees or agents, that
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may be parked in unauthorized areas, and Tenant agrees to save and hold
harmless Landlord, its agents and employees from any and all claims,
losses, damages and demands asserted or arising in respect to or in
connection with the removal of any such vehicle. Tenant, its employees, or
agents shall not park campers, trucks or cars on the Building parking
areas overnight or over weekends. Tenant will from time to time, upon
request of Landlord, supply Landlord with a list of license plate numbers
of vehicles owned or operated by its employees and agents.
18. Landlord reserves the right to make modifications hereto and such other
and further rules and regulations as in its sole judgment may be required
for the safety, care and cleanliness of the premises and the Building and
for the preservation of good order therein. Tenant agrees to abide by all
such rules and regulations.
19. Canvassing, soliciting and peddling is prohibited in the Building and
each Tenant shall cooperate to prevent the same.
20. Landlord is not responsible for the violation of any rule contained
herein by any other Tenant.
21. Landlord may waive any one or more of these rules for the benefit of any
particular Tenant, but no such waiver shall be construed as a waiver of
Landlord's right to enforce these rules against any or all Tenants
occupying the Building.
22. Tenant is responsible for purchasing and installing a security system if
required by the City of FREMONT. The cost of purchasing and installation
of any such system is the sole costs and expense of the Tenant.
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APPENDIX
INDEX TO DEFINED TERMS
Term Section No.
---- -----------
Advance Rent Section 1.8 (B)
Alterations Section 18.1
Award Section 20.1 (c)
Bankruptcy Event Article 33
Broker Section 1.15
Building Section 1.5
Capital Costs Section 6.1 (d)
& CP Article 13
CC&Rs Section 1.13
Claims Section 11.3
Commencement Date Section 3.1
Common Area Section 6.1 (a)
Common Area Costs Section 6.1 (b)
Complex Section 1.6
Complex Insurance Premium Section 8.4
Condemnation Section 20.1 (a)
Condemnor Section 20.1 (d)
Construction Budget Section 3 of Exhibit C
Construction Costs Section 3 of Exhibit C
Construction Plans Section 3 of Exhibit C
Conversion Section 34.23
Code Section 25.4 (d)
Date of Taking Section 20.1 (b)
Decision Period Section 20.4
Environmental Laws Section 16.3 (a) (i)
Estimated Commencement Date Section 1.7 (A)
Force Majeure Delay Section 3 of Exhibit C
Hazardous Materials Section 16.3 (a) (ii)
HVAC Section 19.2
Initial Pro Rata % Section 1.11
Landlord Section 1.2
Landlord's Allowance Section 1.12
Landlord Parties Section 2.1
Laws and Regulations Section 16.1
Lease Introduction
Lender Article 22
Limited Entity Section 34.23
Loss Date Section 12.1
Losses Section 16.3 (a) (iii)
Management Fee Section 1.14
Minimum Monthly Rent Section 1.8 (A)
Net Worth Section 34.23
Nonterminating Party Section 20.4
Notice Article 29
Parties Introduction
Permitted Use Section 1.11
Premises Section 1.4
Pro Rata % Section 6.1 (c)
Pro Rata Share Section 6.3
Professional Fees Section 34.13
Real Property Taxes Section 5.1
Release Section 16.3 (a) (iv)
Rent Section 4.1
Rent Payment Address Section 1.1
Rentable Area Section 1.4
Restrictions Section 2.2
Rules and Regulations Section 34.8
Security Deposit Section 1.9
Security Instrument Section 30.1
Space Plan Section 3 of Exhibit C
State Section 1.6
Substantial Completion Section 3 of Exhibit C
Substantially Completed Section 3 of Exhibit C
Successor-in-Interest Section 30.3
Taxes Section 5.1
Tenant Section 1.3
Tenant Delay Section 3 of Exhibit C
Tenant Improvements Section 3 of Exhibit C
Tenant Parties Section 2.1
Tenant's Participation Section 3 of Exhibit C
Term Section 1.7
Terminating Party Section 20.4
Termination Notice Section 7.5
Transfer Section 7.1
Transfer Agreement Section 7.2
Transfer Date Section 7.2
Transfer Notice Section 7.2
Transferee Section 7.2
Transferor Section 7.4
Uninsured Property Loss Section 12.1
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FIRST AMENDMENT TO BUSINESS PARK NET LEASE
THIS FIRST AMENDMENT TO BUSINESS PARK NET LEASE (this "Amendment") is entered
into this 1ST day of September, 2000, by and between BEDFORD PROPERTY INVESTORS,
INC., A MARYLAND CORPORATION, ("Landlord") and PINE PHOTONICS COMMUNICATIONS,
INC., A DELAWARE CORPORATION, ("Tenant").
RECITALS
A. Landlord and Tenant previously entered into that certain Lease dated June 30,
2000 (the "Lease"), whereby Landlord leased to Tenant and Tenant leased from
Landlord approximately 12,060 rentable square feet of space located at 000
XXXXXX XXXXX, XXXXXXX, XXXXXXXXXX (the "Premises").
B. The parties hereto wish to amend the Lease to (i) expand the size of the
Premises by approximately Six Thousand One Hundred (6,100) rentable square feet,
known as 000 Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxx as shown on Exhibit "A" attached
hereto and incorporated herein by this reference (the "Expansion Premises"),
(ii) revise the Minimum Rent for the Premises after inclusion of the Expansion
Premises, (iii) revise Tenant's Initial Pro Rata % specified in Section 1.11 of
the Lease after inclusion of the Expansion Premises, (iv) revise the Letter of
Credit as Security Deposit for the Premises after inclusion of the Expansion
Premises, and to otherwise amend the terms and conditions of the Lease as
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
contained, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
AGREEMENT
1. RECITALS. The foregoing recitals are true and correct and are incorporated
herein by this reference.
2. DEFINED TERMS. All capitalized terms used in this Amendment that are not
defined herein shall have the meanings as defined in the Lease.
3. COMMENCEMENT DATE. The Commencement Date for the Expansion Premises shall be
September 15, 2000, and shall expire July 31, 2005.
4. EXPANSION OF PREMISES. Upon the Commencement Date, Tenant hereby hires from
Landlord, and Landlord hereby leases to Tenant, the Expansion Premises. From and
after the Commencement Date, the Expansion Premises shall be deemed to be a part
of the Premises for all purpose under the Lease, and Landlord and Tenant hereby
agree that the Premises shall consist of approximately Eighteen Thousand One
Hundred Sixty (18,160) rentable square feet. The Lease is hereby amended
accordingly.
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5. MINIMUM MONTHLY RENT. From and after the Commencement Date, Tenant shall pay
to Landlord as Minimum Rent for the Premises (including the Expansion Premises)
the following amounts:
9/1/00 - 9/14/00: $ 9,849.00 (Existing Premises partial month)
9/15/00 - 9/30/00: $16,949.33 (partial month)
10/1/00 - 7/31/01: $31.780.00 (per month)
8/1/01 - 7/31/02: $33,369.00 (per month)
8/1/02 - 7/31/03: $35,037.45 (per month)
8/1/03 - 7/31/04: $36,789.32 (per month)
8/1/04 - 7/31/05: $38,628.79 (per month)
6. TENANT'S PRO RATA %. As of the Commencement Date, Tenant's Pro Rata %
specified in Section 1.11 of the Lease is deleted in its entirety and the
following is substituted therefore:
"26.69%" - CAM and Insurance Pro Rata (18,160 SF + 68,030 SF)
"50.19%" - Property Tax Pro Rata (18,160 SF + 36,180 SF)
7. TENANT IMPROVEMENTS. From and after the Commencement Date, Landlord shall
provide Tenant with an improvement allowance of up to Twelve Thousand Two
Hundred Dollars ($12,200.00) (the "Allowance"), for Tenant to make certain
improvements to the Expansion Premises (the "Tenant Improvements.") All Tenant
improvements proposed to be performed by Tenant shall be performed in accordance
with Article 18 and Exhibit "C" of the Lease, will otherwise in accordance with
all applicable laws and regulations pertaining thereto. Tenant shall provide
Landlord with bills, invoices or other evidence reasonably satisfactory to
Landlord of sums expended by Tenant on the Tenant Improvements, and Landlord
shall reimburse Tenant within thirty (30) days following receipt of such bills,
invoices or such other evidence. In no event shall Landlord be required to
reimburse Tenant for any amounts in excess of the Allowance. Any part of the
Allowance not spent by Tenant on the Tenant Improvements shall be the sole
property of Landlord and Tenant shall have no right thereto.
8. LETTER OF CREDIT AS SECURITY DEPOSIT. Prior to the Commencement Date of this
Amendment, Tenant shall deposit to Landlord (i) a revised letter of credit in
the amount of $463,545.45 inclusive of the Expansion Premises, or (ii) a letter
of credit in the amount of $155,706.34, which shall be separate and in addition
to the letter of credit in the amount of $307,839.11 for the premises located at
000 Xxxxxx Xxxxx in Fremont, California. Said letter of credit shall be in the
form of an irrevocable, unconditional and clean standby letter of credit and
otherwise in the form set forth below (the "Letter of Credit"). The term
Security Deposit shall mean the cash portion of the Security Deposit and the
Letter of Credit,
8.1 FORM OF LETTER OF CREDIT. The Letter of Credit shall be issued by a
national bank acceptable to Landlord in its reasonable discretion, with offices
in the San Francisco Bay Area that will accept and pay on any draw on the Letter
of Credit. The Letter of Credit shall be issued for a term of at least twelve
months (with a term during the last year of the Lease Term of at least one full
month following the expiration of the Lease Term) and shall be in a form and
with such content acceptable to Landlord in its sole and absolute discretion.
Any Letter of Credit that
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Tenant delivers to Landlord in replacement of an existing Letter of Credit shall
be in an amount equal to the replaced Letter of Credit (prior to any draws) so
that the cash and Letter of Credit together equal the amount of the Security
Deposit specified in the Lease. Any such replacement Letter of Credit shall be
delivered to and received by Landlord no later than thirty days prior to the
expiration of the term of the Letter of Credit then in effect. If Tenant fails
to deposit a replacement Letter of Credit or renew the expiring Letter of
Credit, Landlord shall have the right to draw upon the expiring Letter of Credit
for the full amount thereof and hold the same as Security Deposit; provided,
however, that if Tenant provides a replacement Letter of Credit that meets the
requirements of this section, Landlord shall promptly return to Tenant in cash
that amount of the Letter of Credit that had been drawn upon by Landlord. The
Letter of Credit shall expressly permit full and partial draws. If for any
reason the Letter of Credit does not permit partial draws, then Landlord shall
have the right to make a full draw on the Letter of Credit, notwithstanding that
the full amount may not be required to cure any default by Tenant. The Letter of
Credit shall designate Landlord as beneficiary and shall be transferable by
beneficiary to any transferee, successor, and assign (including any lender of
Landlord) at no cost or expense to beneficiary. The Letter of Credit shall
provide that it may be drawn by Landlord (or its assignee) upon presentation by
Landlord to the issuing bank (at its offices in the San Francisco Bay Area) of a
sight draft(s), together with a written statement executed by Landlord stating
that the amount requested is due Landlord under the Lease. The amount of the
draw requested by Landlord shall be payable by the bank without further inquiry
or any other documentation or further action required of the bank, Landlord, or
Tenant. All costs and expenses to obtain the Letter of Credit and all renewals
shall be borne by Tenant.
8.2 LANDLORD'S DRAW. If the Letter of Credit is drawn upon by Landlord,
Tenant shall, within ten days after written demand therefor, deposit cash with
Landlord in an amount sufficient to restore the Security Deposit to amount
required under the Lease and this Addendum. At all times the Security Deposit,
whether in the form of cash and/or Letter of Credit, shall be in the amount
specified in the Lease. The use, application or retention of the Letter of
Credit, or any portion thereof, by Landlord shall not prevent Landlord from
exercising any other right or remedy provided by this Lease or by law, it being
intended that Landlord shall not first be required to use all or any part of the
Letter of Credit or cash portion of the Security Deposit, and such use shall not
operate as a limitation on any recovery to which Landlord may otherwise be
entitled. Tenant shall not be entitled to any interest on the cash portion of
the Security Deposit. The exercise of any rights of Landlord to the Security
Deposit shall not constitute a waiver of nor relieve Tenant from any liability
or obligation for any default by Tenant. If Landlord draws upon the entire
amount of the Letter of Credit, Tenant may deliver a replacement Letter of
Credit to Landlord, instead of depositing cash with Landlord, equal to the
original amount of the Letter of Credit
8.3 RETURN OR TRANSFER OF LETTER OF CREDIT. Within thirty days after the
expiration or earlier termination of the Lease and provided Tenant has complied
with all of its obligations under the Lease, Landlord shall promptly return the
refundable portion of the Security Deposit, including the Letter of Credit, to
Tenant. In the event of a transfer of the Premises, Building or Project by
Landlord, Landlord or any subsequent transferor shall deliver the refundable
portion of the Security Deposit, including both the cash portion and the Letter
of Credit, to the successor landlord or transferee.
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9. REAL ESTATE BROKERS. Tenant hereby represents and warrants to Landlord that
Tenant has not authorized or employed, or acted by implication to authorize or
employ, any real estate broker or salesman to act for it in connection with this
First Amendment and the expansion of the Premises contemplated herein. Tenant
shall indemnify, defend and hold the Landlord harmless from and against any and
all claims by any real estate broker or salesman whom Tenant authorized or
employed, or acted by implication to authorize or employ, to act for Tenant in
connection with this First Amendment.
10. NO CHANGE. Except as set forth herein, all of the terms and conditions of
the Lease remain unchanged and in full force and effect.
IN WITNESS WHEREOF, Landlord and Tenant have executed this First Amendment as of
the day and date first written above.
LANDLORD: TENANT:
BEDFORD PROPERTY INVESTORS, INC., A PINE PHOTONICS COMMUNICATIONS, INC., A
MARYLAND CORPORATION DELAWARE CORPORATION
BY: /s/ Xxxxx X. Xxxxx BY: /s/ Hsing Kung
------------------------------- ---------------------------------
XXXXX X. XXXXX (PRINT): Hsing Kung
ITS: SR. VICE PRESIDENT/COO ITS: President/CEO
DATE: 9/19/00 DATE: 9/11/00
/s/ /s/
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EXHIBIT A
FLOOR PLAN OF EXPANSION SPACE
[FLOOR PLAN]
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SECOND AMENDMENT TO BUSINESS PARK
NET LEASE
This SECOND AMENDMENT TO BUSINESS PARK NET LEASE ("Second Amendment") is made as
of this 23RD day of JUNE, 2005, by and between BEDFORD PROPERTY INVESTORS, INC.,
A MARYLAND CORPORATION, ("Landlord") and OPNEXT, INC., A DELAWARE CORPORATION,
successor in interest to Pine Photonics, Inc., a Delaware corporation
("Tenant").
R E C I T A L S
A. The Tenant and Landlord entered into that certain lease dated, June 30,
2000, as amended by the First Amendment dated September 1, 2000 (collectively
the "LEASE"), under the terms of which Tenant leased certain space (the "Leased
Premises") commonly known as 000 XXXXXX XXXXX, XXXXXXX, XXXXXXXXXX containing
approximately 18,160 rentable square feet, as fully described in the Lease.
B. Landlord and Tenant desire to amend and modify the Lease as more
particularly set forth in this Second Amendment.
In consideration of the foregoing and the covenants and obligations
contained herein, the parties agree to amend the Lease in the following
particulars only.
1. RATIFICATION. Except as otherwise stated in this Second Amendment, the
terms of the Lease remain in full force and effect and the Lease, as hereby
amended shall bind, and inure to the benefit of, the successors of the parties
hereto.
2. TERM. The Salient Lease Terms are hereby amended such that the Term
will be extended for a period of thirty six (36) months commencing August 1,
2005 and terminating July 31, 2008.
3. MINIMUM MONTHLY RENT. The Salient Lease Terms are hereby amended such
that the Minimum Monthly Rent payable during the Term of the Lease shall be as
follows:
August 1, 2005 - July 31, 2006: $12,530.00 per month, NNN
August 1, 2006 - July 31, 2007: $13,075.00 per month, NNN
August 1, 2007 - July 31, 2008: $13,620.00 per month, NNN
4. LANDLORD'S ALLOWANCE. The Landlord agrees to contribute an amount of
$72,640.00 (i.e. $4.00 per square foot of the rentable area of the Premises) to
be paid by Landlord for the Tenant Improvement Cost for the Tenant Improvements
to be mutually agreed upon by Landlord and Tenant. This sum shall be paid
directly to the contracting parties entitled to payment. Any unused portion of
Landlord's Allowance for the Tenant Improvements shall remain the property of
Landlord, and Tenant shall have no interest in said funds. Tenant acknowledges
and agrees that it shall be responsible for payment of all Construction Costs in
excess of Landlord's Allowance and shall pay to Landlord within ten (10) days
after request from Landlord the amount of such excess Construction Costs.
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5. NO BROKERS. Tenant represents and warrants that it has not authorized
or employed, or acted by implication to authorize or employ, any real estate
broker or salesman to act for it in connection with this Second Amendment.
Tenant shall indemnify, defend and hold Landlord harmless from and against any
and all claims by any real estate broker or salesman Tenant authorized or
employed, or acted by implication to authorize or employ, to act for Tenant in
connection with this Second Amendment to Lease.
6. CONFIRMATION. Tenant acknowledges that as of the date of this Second
Amendment it has no claims against Landlord or its agent which may serve as the
basis of any set-off against Rent or any other remedy at law or equity. Each
party represents and warrants to the other that it is duly authorized to enter
into this Second Amendment and perform its obligations without the consent or
approval of any other party and that the person signing on its behalf is duly
authorized to sign on behalf of such party.
7. COUNTERPARTS. This Second Amendment may be executed in any number of
counterparts, which together shall constitute a final Second Amendment.
[the balance of this page has been intentionally left blank;
signature page follows]
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IN WITNESS WHEREOF, this Second Amendment has been executed as of the date
first set forth above.
LANDLORD: TENANT:
BEDFORD PROPERTY INVESTORS, INC., A OPNEXT, INC.
MARYLAND CORPORATION A DELAWARE CORPORATION
/s/ Xxxxxxx X. Xxxxx BY: /s/ Xxxxx X. Xxxxx
----------------------------------- ----------------------------------
By: Xxxxxxx X. Xxxxx (Print): XX XXXXX
ITS: Exec VP & COO ITS: PRESIDENT & CEO
7/11/05 DATE: 7-7-05
------------------------------------
DATE:
FOR OFFICE USE ONLY
PREPARED BY: /S/
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REVIEWED BY: /S/
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APPROVED BY: /S/
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