Exhibit 10.7
INDUSTRIAL LEASE
by and between
AMB PROPERTY, L.P.
"LANDLORD"
and
CAPSTONE TURBINE CORPORATION
"TENANT"
Dated: September 25, 2000
TABLE OF CONTENTS
Page
1. BASIC PROVISIONS 1
1.1 PARTIES 1
1.2 PREMISES 1
1.3 TERM 1
1.4 BASE RENT 1
1.5 TENANT'S SHARE OF OPERATING EXPENSES 1
1.6 TENANT'S ESTIMATED MONTHLY RENT PAYMENT 1
1.7 SECURITY DEPOSIT 1
1.8 PERMITTED USE 1
1.9 GUARANTOR 1
1.10 ADDENDA I
1.11 EXHIBITS 1
1.12 ADDRESS FOR RENT PAYMENTS 2
2. PREMISES AND COMMON AREAS 3
2.1 LETTING 3
2.2 CONDITION OF PREMISES 3
3. TERM 3
3.1 TERM 3
3.2 DELAY IN POSSESSION 3
3.3 COMMENCEMENT DATE CERTIFICATE 3
4. RENT 3
4.1 BASE RENT 3
4.2 OPERATING EXPENSES 3
5. SECURITY DEPOSIT 4
6. USE 4
6.1 PERMITTED USE 4
6.2 HAZARDOUS SUBSTANCES 5
6.3 TENANT'S COMPLIANCE WITH REQUIREMENTS 6
6.4 INSPECTION; COMPLIANCE WITH LAW 6
7. MAINTENANCE, REPAIRS, TRADE FIXTURES AND ALTERATIONS 6
7.1 TENANT'S OBLIGATIONS 6
7.2 LANDLORD'S OBLIGATIONS 6
7.3 ALTERATIONS 6
7.4 SURRENDER/RESTORATION 6
8. INSURANCE; INDEMNITY 7
8.1 PAYMENT OF PREMIUMS 7
8.2 TENANT'S INSURANCE 7
8.3 LANDLORD'S INSURANCE 7
8.4 WAIVER OF SUBROGATION 7
8.5 INDEMNITY 7
8.6 EXEMPTION OF LANDLORD FROM LIABILITY 8
9. DAMAGE OR DESTRUCTION 8
9.1 TERMINATION RIGHT 8
9.2 DAMAGE CAUSED BY TENANT 8
10. REAL PROPERTY TAXES 8
10.1 PAYMENT OF REAL PROPERTY TAXES 8
10.2 REAL PROPERTY TAX DEFINITION 8
10.3 ADDITIONAL IMPROVEMENTS 9
10.4 JOINT ASSESSMENT 9
10.5 TENANT'S PROPERTY TAXES 9
11. UTILITIES 9
12. ASSIGNMENT AND SUBLETTING 9
12.1 LANDLORD'S CONSENT REQUIRED 9
13. DEFAULT;REMEDIES 10
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TABLE OF CONTENTS
Page
13.1 DEFAULT 10
13.2 REMEDIES 10
13.3 LATE CHARGES 12
14. CONDEMNATION 12
15. ESTOPPEL CERTIFICATE AND FINANCIAL STATEMENTS 12
15.1 ESTOPPEL CERTIFICATE 12
15.2 FINANCIAL STATEMENT 13
16. ADDITIONAL COVENANTS AND PROVISIONS 13
16.1 SEVERABILITY 13
16.2 INTEREST ON PAST-DUE OBLIGATIONS 13
16.3 TIME OF ESSENCE 13
16.4 LANDLORD LIABILITY 13
16.5 NO PRIOR OR OTHER AGREEMENTS 13
16.6 NOTICE REQUIREMENTS 13
16.7 DATE OF NOTICE 13
16.8 WAIVERS 13
16.9 HOLDOVER 13
16.10 CUMULATIVE REMEDIES 14
16.11 BINDING EFFECT: CHOICE OF LAW 14
16.12 LANDLORD 14
16.13 ATTORNEYS' FEES AND OTHER COSTS 14
16.14 LANDLORD'S ACCESS; SHOWING PREMISES; REPAIRS 14
16.15 SIGNS 14
16.16 TERMINATION; MERGER 14
16.17 QUIET POSSESSION 14
16.18 SUBORDINATION; ATTORNMENT; NON-DISTURBANCE 14
16.19 RULES AND REGULATIONS 15
16.20 SECURITY MEASURES 15
16.21 RESERVATIONS 15
16.22 CONFLICT 15
16.23 OFFER 15
16.24 AMENDMENTS 15
16.25 MULTIPLE PARTIES 15
16.26 AUTHORITY 16
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AMB PROPERTY CORPORATION
INDUSTRIAL LEASE
1. BASIC PROVISIONS ("Basic Provisions").
1.1 Parties: This Lease ("Lease") dated September 25, 2000, is made by
and between AMB Property, L.P., a Delaware limited partnership, ("Landlord") and
Capstone Turbine Corporation, a Delaware corporation, ("Tenant") (collectively,
the "Parties" or individually, a "Party").
1.2 Premises The premises ("Premises") consist of:
[ ] Approximately square feet of space as depicted on Exhibit A. This
space is a part of the building ("Building") which is also identified on Exhibit
A.
or
[X] All of the building ("Building") identified on Exhibit A, consisting
of approximately 78,711 square feet and commonly known as 00000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxxxxxxxxx.
If the Premises are all of the Building, there shall, for purposes of this
Lease, be no distinction between the words "Premises" or "Building."
1.3 Term: 10 years and 2 months ("Term") commencing October 1, 2000
("Commencement Date") and ending December 31, 2010 ("Expiration Date").
1.4 Base Rent: $44,078.00 per month ("Base Rent"). $51,495.00 is payable
on execution of this Lease for the period December 2000.
1.5 Tenant's Share of Operating Expenses ("Tenant's Share"):
(a) Building Operating Expenses 100%
1.6 Tenant's Estimated Monthly Rent Payment: Following is the estimated
monthly Rent payment to Landlord pursuant to the provisions of this Lease. This
estimate is made at the inception of the Lease and is subject to adjustment
pursuant to the provisions of this Lease:
(a) Base Rent (Paragraph 4.1) $44,078.00
(b) Operating Expenses (Paragraph 4.2,
excluding Real Property Taxes,
Landlord Insurance, and HVAC) $ 3,000.00
(c) Landlord Insurance (Paragraph 8.3) $ 415.00
(d) Real Property Taxes (Paragraph 10) $ 4,002.00
(e) HVAC maintenance (Paragraph 4.2) $ -0-
Estimated Monthly Payment $51,495.00
1.7 Security Deposit: $44,078.00 ("Security Deposit").
1.8 Permitted Use ("Permitted Use"): Office, assembly, product testing
(outside and inside), warehouse and distribution of micro-turbines, recuperators
and related parts and for other general office, assembly, warehouse and
distribution purposes provided they do not involve Hazardous Substances, as
defined in this Lease and for no other purpose.
1.9 Guarantor: None
1.10 Addenda: Attached hereto are the following Addenda, all of which
constitute a part of this Lease:
(a) Addenda: Rent Adjustment
(b) Addenda: Option to Extend
(c) Addenda: Addendum
(d) Addenda: Tenant Improvement Addendum
1.11 Exhibits: Attached hereto are the following Exhibits, all of which
constitute a part of this Lease:
Exhibit A: Description of Premises.
Exhibit B: Commencement Date Certificate.
Exhibit C: Estoppel Certificate
Exhibit D: Hazardous Substances Questionnaire
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1.12 Address for Rent Payments: All amounts payable by Tenant to
Landlord shall, until further notice from Landlord, be paid to AMB Property
Corporation at the following address:
AMB Property, L.P.
------------------------------------
X.X. Xxx 000000
------------------------------------
Xxxxxx, XX 00000-0000
------------------------------------
------------------------------------
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2. PREMISES AND COMMON AREAS.
2.1 Letting. Landlord hereby leases to Tenant and Tenant hereby leases
from Landlord the Premises upon all of the terms, covenants, and conditions, set
forth in this Lease. Any statement of square footage set forth in this Lease or
that may have been used in calculating Base Rent and/or Operating Expenses is an
approximation which Landlord and Tenant agree is reasonable, and the Base Rent
and Tenant's Share based thereon is not subject to revision whether or not the
actual square footage is more or less.
Intentionally Deleted Intentionally Deleted Intentionally Deleted
Intentionally Deleted
2.2 Condition of Premises. Landlord shall deliver the Premises to Tenant
clean and free of debris on the Commencement Date. Landlord represents and
warrants to Tenant that the roof shall be water-tight and the plumbing,
lighting, ceiling, interior and exterior walls, electrical, air conditioning,
fire-sprinklers, heating, ventilating and other mechanical systems and equipment
and fixtures in the Premises, and the loading doors shall be in good operating
condition on the Commencement Date. Without limitation to Landlord's obligations
as set forth in Paragraph 7.2, in the event that Tenant gives notice to Landlord
within 6 months following the Commencement Date of any defect or malfunction in
or repair reasonably needed to any of the aforementioned items or systems, as
long as not caused by Tenant, then it shall be the obligation of Landlord to
promptly, at Landlord's sole cost and expense, perform such work.
3. TERM.
3.1 Term. The Commencement Date, Expiration Date, and Term of this Lease
are as specified in Paragraph 1.3.
3.2 Delay in Possession. If for any reason Landlord cannot deliver
possession of the Premises to Tenant by the Commencement Date, except as
provided below, Landlord shall not be subject to any liability therefor, nor
shall such failure affect the validity of this Lease or the obligations of
Tenant hereunder. In such case, Tenant shall not, except as otherwise provided
herein, be obligated to pay Rent or perform any other obligation of Tenant under
the terms of this Lease until Landlord delivers possession of the Premises to
Tenant. The term of the Lease shall commence on the earlier of (a) the date
Tenant takes possession of the Premises or (b) 10 days following notice to
Tenant that Landlord is prepared to tender possession of the Premises to Tenant.
If possession of the Premises is not delivered to Tenant within 60 days after
the Commencement Date and such delay is not due to Tenant's acts, failure to
act, or omissions, Tenant shall have the option to either (i) by notice in
writing to Landlord within 10 days after the end of said 60-day period cancel
this Lease and the parties shall be discharged from all obligations hereunder;
or (ii) elect not to cancel this Lease, in which case Tenant shall receive rent
abatement, to be applied to the rent coming due when the term of the Lease
commences, equal to one day for each day following such sixtieth (60th) day that
Landlord fails to deliver the Premises to Tenant If such written notice of
Tenant's cancellation under (i) above is not received by Landlord within said
10-day period, Tenant's right to cancel this Lease shall terminate and Tenant
shall be deemed to have elected option (ii) above.
3.3 Commencement Date Certificate. At the request of Landlord, Tenant
shall execute and deliver to Landlord a completed certificate ("Commencement
Date Certificate") in the form attached hereto as Exhibit B.
4. RENT.
4.1 Base Rent. Tenant shall pay to Landlord Base Rent and other monetary
obligations of Tenant to Landlord under the terms of this Lease (such other
monetary obligations are herein referred to as "Additional Rent") in lawful
money of the United States, without offset or deduction, in advance on or before
the first day of each month. Base Rent and Additional Rent for any period during
the term hereof which is for less than one full month shall be prorated based
upon the actual number of days of the month involved. Payment of Base Rent and
Additional Rent shall be made to Landlord at its address stated herein or to
such other persons or at such other addresses as Landlord may from time to time
designate in writing to Tenant. Base Rent and Additional Rent are collectively
referred to as "Rent." All monetary obligations of Tenant to Landlord under the
terms of this Lease are deemed to be Rent.
4.2 Operating Expenses. Tenant shall pay to Landlord on the first day of
each month during the term hereof, in addition to the Base Rent, Tenant's Share
of all Operating Expenses in accordance with the following provisions:
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(a) "Operating Expenses" are all reasonable costs incurred by
Landlord relating to the ownership and operation of the Premises including, but
not limited to, the following:
(i) The operation, repair, maintenance, and replacement in
neat, clean, good order, and condition of the areas of the Premises Landlord is
obligated to maintain under this Lease.
(ii) Property management.
(iii) Reserves set aside for maintenance, repair, and
replacement of the Building.
(iv) Real Property Taxes.
(v) Premiums for the insurance policies maintained by
Landlord under Paragraph 8 hereof.
(vi) Environmental monitoring and insurance programs, but
only in the event that such monitoring is required by the acts or omissions of
Tenant or its agents.
(vii) Monthly amortization of capital improvements to the
Building. The monthly amortization of any given capital improvement shall be the
sum of the (a) quotient obtained by dividing the cost of the capital improvement
by Landlord's estimate of the number of months of useful life of such
improvement plus (b) an amount equal to the cost of the capital improvement
times 1/12 of the lesser of 12% or the maximum annual interest rate permitted by
law.
(viii) Maintenance of the Building including, but not
limited to, painting, caulking, and repair and replacement of Building
components, including, but not limited to, roof, elevators, and fire detection
and sprinkler systems.
(ix) Maintenance, repair and replacement of the heating,
ventilating, and air conditioning systems ("HVAC").
(b) Tenant's Share of Operating Expenses shall be 100%.
(c) Tenant shall pay monthly in advance, on the same day that the
Base Rent is due, Tenant's Share of estimated Operating Expenses and HVAC
maintenance costs in the amount set forth in Paragraph 1.6. Landlord shall
deliver to Tenant within 90 days after the expiration of each calendar year a
reasonably detailed statement showing Tenant's Share of the actual Operating
Expenses incurred during the preceding year. If Tenant's estimated payments
under this Paragraph 4(c) during the preceding year exceed Tenant's Share as
indicated on said statement, Tenant shall be credited the amount of such
overpayment against Tenant's Share of Operating Expenses next becoming due, or,
if such amount is owing at the end of Lease term, such amount shall be paid
within 30 days following the end of the Lease term. If Tenant's estimated
payments under this Paragraph 4.2(c) during said preceding year were less than
Tenant's Share as indicated on said statement, Tenant shall pay to Landlord the
amount of the deficiency within 30 days after delivery by Landlord to Tenant of
said statement. At any time Landlord may, in the exercise of its reasonable
judgment, adjust the amount of the estimated Tenant's Share of Operating
Expenses and HVAC maintenance costs to reflect Landlord's estimate of such
expenses for the year.
5. SECURITY DEPOSIT. Tenant shall deposit with Landlord upon Tenant's execution
hereof the Security Deposit set forth in Paragraph 1.7 as security for Tenant's
faithful performance of Tenant's obligations under this Lease. If Tenant fails
to pay Base Rent or Additional Rent or otherwise defaults under this Lease (as
defined in paragraph 13.1), landlord may use the security deposit for the
payment of any amount due Landlord or to reimburse or compensate Landlord for
any liability, cost, expense, loss, or damage (including attorneys' fees) which
Landlord may suffer or incur by reason thereof. Tenant shall on demand pay
Landlord the amount so used or applied so as to restore the Security Deposit to
the amount set forth in Paragraph 1.7. Landlord shall not be required to keep
all or any part of the Security Deposit separate from its general accounts.
Landlord shall, at the expiration or earlier termination of the term hereof and
after Tenant has vacated the Premises, return to Tenant that portion of the
Security Deposit not used or applied by Landlord. No part of the Security
Deposit shall be considered to be held in trust, to bear interest, or to be
prepayment for any monies to be paid by Tenant under this Lease.
6. USE.
6.1 Permitted Use. Tenant shall use and occupy the Premises only for the
Permitted Use set forth in Paragraph 1.8. Tenant shall not commit any nuisance,
permit the emission of any objectionable noise or odor, suffer any waste, make
any use of the Premises which is
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contrary to any law or ordinance, or which will invalidate or increase the
premiums for any of Landlord's insurance. Tenant shall not service, maintain, or
repair vehicles on the Premises. Tenant shall not store foods, pallets, drums,
or any other materials outside the Premises. Notwithstanding the foregoing,
Tenant shall be permitted, provided such use is not in violation of any law or
ordinance and such use is screened from view by screening reasonably acceptable
to Landlord, to use the exterior areas of the Premises for the purposes of
product testing and uses related to such product testing.
6.2 Hazardous Substances.
(a) Reportable Uses Require Consent. The term, "Hazardous
Substance," as used in this Lease, shall mean any product, substance, chemical,
material, or waste whose presence, nature, quantity, and/or intensity of
existence, use, manufacture, disposal, transportation, spill, release, or
effect, either by itself or in combination with other materials expected to be
on the Premises, is either: (i) potentially injurious to the public health,
safety or welfare, the environment, or the Premises; (ii) regulated or monitored
by any governmental authority; or (iii) a basis for potential liability of
Landlord to any governmental agency or third party under any applicable statute
or common law theory. Hazardous Substance shall include, but not be limited to,
hydrocarbons, petroleum, gasoline, crude oil, or any products or by-products
thereof. Tenant shall not engage in any activity in or about the Premises which
constitutes a Reportable Use (as hereinafter defined) of Hazardous Substances
without the express prior written consent of Landlord and compliance in a timely
manner (at Tenant's sole cost and expense) with all Applicable Requirements (as
defined in Paragraph 6.3). "Reportable Use" shall mean (i) the installation or
use of any above or below ground storage tank, (ii) the generation, possession,
storage, use, transportation, or disposal of a Hazardous Substance that requires
a permit from, or with respect to which a report, notice, registration, or
business plan is required to be filed with, any governmental authority, and
(iii) the presence in, on, or about the Premises of a Hazardous Substance with
respect to which any Applicable Requirements require that a notice be given to
persons entering or occupying the Premises or neighboring properties.
Notwithstanding the foregoing, Tenant may, without Landlord's prior consent, but
upon notice to Landlord and in compliance with all Applicable Requirements, use
any ordinary and customary materials reasonably required to be used by Tenant in
the normal course of the Permitted Use, so long as such use is not a Reportable
Use and does not expose the Premises or neighboring properties to any meaningful
risk of contamination or damage, or expose Landlord to any liability therefor.
In addition, Landlord may (but without any obligation to do so) condition its
consent to any Reportable Use of any Hazardous Substance by Tenant upon Tenant's
giving Landlord such additional assurances as Landlord, in its reasonable
discretion, deems necessary to protect itself, the public, the Premises, and the
environment against damage, contamination, injury, and/or liability therefor,
including but not limited to the installation (and, at Landlord's option,
removal on or before Lease expiration or earlier termination) of reasonably
necessary protective modifications to the Premises (such as concrete
encasements) and/or the deposit of an additional Security Deposit.
(b) Duty to Inform Landlord. If Tenant knows, or has reasonable
cause to believe, that a Hazardous Substance is located in, under, or about the
Premises or the Building, Tenant shall immediately give Landlord written notice
thereof, together with a copy of any statement, report, notice, registration,
application, permit, business plan, license, claim, action, or proceeding given
to, or received from, any governmental authority or private party concerning the
presence, spill, release, discharge of, or exposure to such Hazardous Substance.
Tenant shall not cause or permit any Hazardous Substance to be spilled or
released in, on, under, or about the Premises (including, without limitation,
through the plumbing or sanitary sewer system).
(c) Indemnification. Tenant shall indemnify, protect, defend, and
hold Landlord, Landlord's affiliates, Lenders, and the officers, directors,
shareholders, partners, employees, managers, independent contractors, attorneys,
and agents of the foregoing ("Landlord Entities") and the Premises harmless from
and against any and all damages, liabilities, judgments, costs, claims, liens,
expenses, penalties, loss of permits, and attorneys' and consultants' fees
arising out of or involving any Hazardous Substance on or brought onto the
Premises by or for Tenant or by any of Tenant's employees, agents, contractors,
servants, visitors, suppliers, or invitees (such employees, agents, contractors,
servants, visitors, suppliers, and invitees as herein collectively referred to
as "Tenant Entities"). Tenant's obligations under this Paragraph 6.2(c) shall
include, but not be limited to, the effects of any contamination or injury to
person, property, or the environment created or suffered by Tenant, and the cost
of investigation (including consultants' and attorneys' fees and testing),
removal, remediation,
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restoration and/or abatement thereof, or of any contamination therein involved.
Tenant's obligations under this Paragraph 6.2(c) shall survive the Expiration
Date or earlier termination of this Lease.
6.3 Tenant's Compliance with Requirements. Tenant shall, at Tenant's
sole cost and expense, fully, diligently, and in a timely manner comply with all
"Applicable Requirements," which term is used in this Lease to mean all laws,
rules, regulations, ordinances, directives, covenants, easements, and
restrictions of record, permits, the requirements of any applicable fire
insurance underwriter or rating bureau, and the reasonable recommendations of
Landlord's engineers and/or consultants, relating in any manner to the Premises
(including but not limited to matters pertaining to (a) industrial hygiene, (b)
environmental conditions on, in, under, or about the Premises, including soil
and groundwater conditions, and (c) the use, generation, manufacture,
production, installation, maintenance, removal, transportation, storage, spill,
or release of any Hazardous Substance), now in effect or which may hereafter
come into effect. Tenant shall, within 5 days after receipt of Landlord's
written request, provide Landlord with copies of all documents and information
evidencing Tenant's compliance with any Applicable Requirements, and shall
immediately upon receipt notify Landlord in writing (with copies of any
documents involved) of any claim, notice, citation, warning, complaint, or
report pertaining to or involving failure by Tenant or the Premises to comply
with any Applicable Requirements.
6.4 Inspection; Compliance with Law. In addition to Landlord's
environmental monitoring and insurance program, the cost of which is included in
Operating Expenses as provided in Xxxxxxxxx 0, Xxxxxxxx and the holders of any
mortgages, deeds of trust, or ground leases on the Premises ("Lenders") shall
have the right to enter the Premises at any time in the case of an emergency,
and otherwise at reasonable times, for the purpose of inspecting the condition
of the Premises and for verifying compliance by Tenant with this Lease and all
Applicable Requirements. Landlord shall be entitled to employ experts and/or
consultants in connection therewith to advise Landlord with respect to Tenant's
installation, operation, use, monitoring, maintenance, or removal of any
Hazardous Substance on or from the Premises. The cost and expenses of any such
inspections shall be paid by the party requesting same unless a violation of
Applicable Requirements exists or is imminent, or the inspection is requested or
ordered by a governmental authority. Tenant shall upon request reimburse
Landlord or Landlord's Lender, as the case may be, for the costs and expenses of
such inspections.
7. MAINTENANCE, REPAIRS, TRADE FIXTURES AND ALTERATIONS.
7.1 Tenant's Obligations. Subject to the provisions of Paragraph 2.6
(Condition of the Premises, Paragraph 7.2 (Landlord's Obligations), Paragraph 9
(Damage or Destruction), and Paragraph 14 (Condemnation), Tenant shall, at
Tenant's sole cost and expense and at all times, keep the Premises and every
part thereof in good order, condition, and repair (whether or not such portion
of the Premises requiring repair, or the means of repairing the same, are
reasonable or readily accessible to Tenant and whether or not the need for such
repairs occurs as a result of Tenant's use, any prior use, the elements, or the
age of such portion of the Premises) including, without limiting the generality
of the foregoing, all equipment or facilities specifically serving the Premises,
such as plumbing, heating, ventilating, electrical, lighting facilities,
boilers, fired or unfired pressure vessels, fire hose connectors if within the
Premises, fixtures, interior walls, interior surfaces of exterior walls,
ceilings, floors, windows, doors, plate glass, and skylights, but excluding any
items which are the responsibility of Landlord pursuant to Paragraph 7.2 below.
Tenant's obligations shall include restorations, replacements, or renewals when
necessary to keep the Premises and all improvements thereon or a part thereof in
good order, condition, and state of repair.
7.2 Landlord's Obligations. Subject to the provisions of Paragraph 6
(Use), Paragraph 7.1 (Tenant's Obligations), Paragraph 9 (Damage or
Destruction), and Paragraph 14 (Condemnation), Landlord, at its expense and not
subject to the reimbursement requirements of Paragraph 4.2, shall keep in good
order, condition, and repair the roof structure, foundations and exterior walls
of the Building. Landlord, subject to reimbursement pursuant to Paragraph 4.2,
shall keep in good order, condition, and repair the air conditioning systems
servicing the Premises, Building roof membrane, and Common Areas.
7.3 Alterations. Tenant shall not make nor cause to be made any
alterations or installations in, on, under, or about the Premises without the
prior written consent of Landlord which will not be unreasonably withheld or
delayed.
7.4 Surrender/Restoration. Tenant shall surrender the Premises by the
end of the last day of the Lease term or any earlier termination date, clean and
free of debris and in good operating order, condition, and state of repair,
ordinary wear and tear excepted. Without limiting
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the generality of the above, Tenant shall remove all Alterations designated by
Landlord in Landlord's sole discretion, personal property, trade fixtures, and
floor bolts, patch all floors, and cause all lights to be in good operating
condition. Notwithstanding the foregoing, Tenant by written notice to Landlord
may require, prior to the installation of any Alterations, that Landlord elect
whether such Alterations must be removed at the end of the Lease term or whether
Tenant shall have the option of removing such Alterations at the end of the
Lease term, and Landlord shall make such election within 20 days following
Landlord's receipt such written notice.
8. INSURANCE; INDEMNITY.
8.1 Payment of Premiums. The cost of the premiums for the insurance
policies maintained by Landlord under this Paragraph 8 shall be an Operating
Expense reimbursable pursuant to Paragraph 4.2 hereof. Premiums for policy
periods commencing prior to, or extending beyond, the term of this Lease shall
be prorated to coincide with the corresponding Commencement Date and Expiration
Date.
8.2 Tenant's Insurance.
(a) At its sole cost and expense, Tenant shall maintain in full
force and effect during the Term of the Lease the following insurance coverages
insuring against claims which may arise from or in connection with the Tenant's
operation and use of the Premises.
(i) Commercial General Liability insurance with minimum
limits of $1,000,000 per occurrence and $3,000,000 general aggregate for bodily
injury, personal injury, and property damage. If required by Landlord, liquor
liability coverage will be included. Such insurance shall be endorsed to include
Landlord and Landlord Entities as additional insureds, shall be primary and
noncontributory with any Landlord insurance, and shall provide severability of
interests between or among insureds.
(ii) Workers' Compensation insurance with statutory limits
and Employers Liability with a $1,000,000 per accident limit for bodily injury
or disease.
(iii) Automobile Liability insurance covering all owned,
nonowned, and hired vehicles with a $1,000,000 per accident limit for bodily
injury and property damage.
(iv) Property insurance against "all risks" at least as
broad as the current ISO Special Form policy, including earthquake and flood,
for loss to any tenant improvements or betterments, floor and wall coverings,
and business personal property (except for earthquake and flood coverage) on a
full insurable replacement cost basis with no coinsurance clause, and Business
Income insurance covering at least six months of loss of income and continuing
expense.
(b) Tenant shall deliver to AMB certificates of all insurance
reflecting evidence of required coverages prior to initial occupancy, and
annually thereafter.
(c) If, in the opinion of Landlord's insurance advisor, the
amount or scope of such coverage is deemed inadequate at any time during the
Term, Tenant shall increase such coverage to such reasonable amounts or scope as
Landlord's advisor deems adequate and which are customary for premises of the
size and location of the Premises.
(d) All insurance required under Paragraph 8.2 (i) shall be
issued by insurers licensed to do business in the state in which the Premises
are located and which are rated A:VII or better by Best's Key Rating Guide and
(ii) shall be endorsed to provide at least 30-days prior notification of
cancellation or material change in coverage to said additional insureds.
8.3 Landlord's Insurance. Landlord shall maintain "all risks" coverage
as broad as the current ISO Special Form policy, including earthquake and flood,
covering Building and such other insurance in such amounts and covering such
other liability or hazards as deemed appropriate by Landlord. The amount and
scope of coverage of Landlord's insurance shall be determined by Landlord from
time to time in its sole discretion and shall be subject to such reasonable
deductible amounts as Landlord may elect. Except as to the "all risks" coverage
for the Building, Landlord shall have the right to reduce or terminate any
insurance or coverage.
8.4 Waiver of Subrogation. To the extent permitted by law and with
permission of their insurance carriers, Landlord and Tenant each waive any right
to recover against the other on account of any and all claims Landlord or Tenant
may have against the other with respect to property insurance actually carried,
or required to be carried hereunder, to the extent of the proceeds realized from
such insurance coverage.
8.5 Indemnity. Tenant shall protect, defend, indemnify, and hold
Landlord and Landlord Entities harmless from and against any and all loss,
claims, liability, or costs (including court costs and attorneys' fees) incurred
by reason of:
(a) any damage to any property (including but not limited to
property of any Landlord Entity) or death, bodily, or personal injury to any
person occurring in or about the
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Premises, the Building, or the Industrial Center to the extent that such injury
or damage shall be caused by or arise from any actual or alleged act, neglect,
fault, or omission by or of Tenant, its agents, servants, employees, invitees,
contractors, suppliers, subtenants, or visitors;
(b) the conduct or management of any work or anything whatsoever
done by the Tenant on or about the Premises or from transactions of the Tenant
concerning the Premises;
(c) Tenant's failure to comply with any and all governmental
laws, ordinances, and regulations applicable to the condition or use of the
Premises or its occupancy; or
(d) any breach or default on the part of Tenant in the
performance of any covenant or agreement to be performed pursuant to this Lease.
The provisions of this Paragraph 8.5 shall, with respect to any claims
or liability accruing prior to such termination, survive the Expiration Date or
earlier termination of this Lease.
8.6 Exemption of Landlord from Liability. Except to the extent caused by
the gross negligence or willful misconduct of Landlord, Landlord shall not be
liable for and Tenant waives any claims against Landlord for injury or damage to
the person or the property of Tenant, Tenant Entities, or any other person in or
about the Premises, Building, or Industrial Center from any cause whatsoever,
including, but not limited to, damage or injury which is caused by or results
from (a) fire, steam, electricity, gas, water, or rain, or from the breakage,
leakage, seepage, back up of sewers or drains, obstruction, or other defects of
pipes, fire sprinklers, wires, appliances, plumbing, air conditioning, or
lighting fixtures or (b) from the condition of the Premises, other portions of
the Building, or Industrial Center. Landlord shall not be liable for any damages
arising from any act or neglect of any other tenant of Landlord nor from the
failure by Landlord to enforce the provisions of any other lease of which
Landlord is the landlord. Except with respect to Landlord's gross negligence or
willful misconduct, Landlord shall not be liable for injury to Tenant's
business, for any loss of income or profit therefrom, or any indirect,
consequential, or punitive damages.
9. DAMAGE OR DESTRUCTION.
9.1 Termination Right. Tenant shall give Landlord immediate written
notice of any damage to the Premises. Subject to the provisions of Paragraph
9.2, if the Premises or the Building shall be damaged to such an extent that
there is substantial interference for a period exceeding 90 consecutive days
with the conduct by Tenant of its business at the Premises, Tenant, at any time
prior to commencement of repair of the Premises and following 10 days written
notice to Landlord, may terminate this Lease effective 30 days after delivery of
such notice to Landlord. Such termination shall not excuse the performance by
Tenant of those covenants which under the terms hereof survive termination. Rent
shall be abated in proportion to the degree of interference during the period
that there is such substantial interference with the conduct of Tenant's
business at the Premises. Abatement of rent and Tenant's right of termination
pursuant to this provision shall be Tenant's sole remedy for Tenant's loss of
beneficial use of the Premises due to the failure of Landlord to keep in good
order, condition, and repair the foundations and exterior walls of the Building,
Building roof, utility systems outside the Building, the Common Areas, and HVAC.
9.2 Damage Caused by Tenant. Tenant's termination rights under Paragraph
9.1 shall not apply if the damage to the Premises or Building is the result of
any act or omission of Tenant or of any of Tenant's, agents, employees,
customers, invitees, or contractors ("Tenant Acts"). Any damage resulting from a
Tenant Act shall be promptly repaired by Tenant. Landlord at its option may at
tenant's expense repair any damage caused by tenant acts. Tenant shall continue
to pay all rent and other sums due hereunder and shall be liable to Landlord for
all damages that Landlord may sustain resulting from a Tenant Act. This section
shall not apply to any damage covered by Landlord's insurance pursuant to
Section 8.3.
10. REAL PROPERTY TAXES.
10.1 Payment of Real Property Taxes. Landlord shall pay the Real
Property Taxes due and payable during the term of this Lease and, except as
otherwise provided in Paragraph 10.3, such payments shall be a Common Area
Operating Expense reimbursable pursuant to Paragraph 4.2. Notwithstanding the
foregoing, there shall be excluded from Real Property Taxes: (i) all excess
profits taxes, franchise taxes, gift taxes, capital stock taxes, inheritance and
succession taxes, estate taxes, federal and state income taxes, and other taxes
to the extent applicable to Landlord's general or net income (as opposed to
rents, receipts, or income attributable to operations at the project), and (ii)
any items included as operating expenses.
10.2 Real Property Tax Definition. As used herein, the term "Real
Property Taxes" is any form of tax or assessment, general, special, ordinary, or
extraordinary, imposed or levied upon (a) the Industrial Center or Building, (b)
any interest of Landlord in the Industrial Center or
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Building, (c) Landlord's right to rent or other income from the Industrial
Center or Building, and/or (d) Landlord's business of leasing the Premises. Real
Property Taxes include (a) any licenses fee, commercial rental tax, excise tax,
improvement bond or bonds, levy, or tax; (b) any tax or charge which replaces
or is in addition to any of such above-described "Real Property Taxes," and (c)
any fees, expenses, or costs (including attorneys' fees, expert fees, and the
like) incurred by Landlord in protesting or contesting any assessments levied or
any tax rate. Real Property Taxes for tax years commencing prior to, or
extending beyond, the term of this Lease shall be prorated to coincide with the
corresponding Commencement Date and Expiration Date.
10.3 Additional Improvements. Operating Expenses shall not include Real
Property Taxes attributable to improvements placed upon the Building by Landlord
unless requested by Tenant. Tenant shall, however, pay to Landlord at the time
Operating Expenses are payable under Paragraph 4.2, the entirety of any increase
in Real Property Taxes if assessed by reason of improvements placed upon the
Premises by Tenant or at Tenant's request.
10.4 Joint Assessment. If the Building is not separately assessed, Real
Property Taxes allocated to the Building shall be an equitable proportion of the
Real Property Taxes for all of the land and improvements included within the tax
parcel assessed.
10.5 Tenant's Property Taxes. Tenant shall pay prior to delinquency all
taxes assessed against and levied upon Tenant's improvements, fixtures,
furnishings, equipment, and all personal property of Tenant contained in the
Premises.
11. UTILITIES. Tenant shall pay directly for all utilities and services supplied
to the Premises, including but not limited to electricity, telephone, security,
gas, and cleaning of the Premises, together with any taxes thereon.
12. ASSIGNMENT AND SUBLETTING
12.1 Landlord's Consent Required.
(a) Tenant shall not assign, transfer, mortgage, or otherwise
transfer or encumber (collectively, "assign") or sublet all or any part of
Tenant's interest in this Lease or in the Premises without Landlord's prior
written consent, which consent shall not be unreasonably withheld. Relevant
criteria in determining reasonability of consent include, but are not limited
to, credit history of a proposed assignee or sublessee, references from prior
landlords, any change or intensification of use of the Premises or the Common
Areas, and any limitations imposed by the Internal Revenue Code and the
Regulations promulgated thereunder relating to Real Estate Investment Trusts.
Assignment or sublet shall not release Tenant from its obligations hereunder.
Tenant shall not (i) sublet, assign, or enter into other arrangements in which
the amounts to be paid by the sublessee or assignee thereunder would be based,
in whole or in part, on the income or profits derived by the business activities
of the sublessee or assignee; (ii) sublet the Premises or assign this Lease to
any person or entity in which Landlord owns an interest, directly or indirectly
(by applying constructive ownership rules set forth in Section 856(d)(5) of the
Internal Revenue Code (the "Code"); or (iii) sublet the Premises or assign this
Lease in any other manner which could cause any portion of the amounts received
by Landlord pursuant to this Lease or any sublease to fail to qualify as "rents
from real property" within the meaning of Section 856(d) of the Code, or which
could cause any other income received by Landlord to fail to qualify as income
described in Section 856(c)(2) of the Code. The requirements of this Section
12.1 shall apply to any further subleasing by any subtenant. Notwithstanding the
foregoing, in the event of any assignment or subletting to which Landlord
consents, Landlord shall receive fifty percent (50%), in the event of a
sublease, of any rent received by Tenant above the rent then being paid by
Tenant to Landlord less: (i) rent obligations paid by Tenant hereunder during
any period when the Premises were vacant following the marketing of the Premises
for such sublease; (ii) the costs of any tenant improvements made or allowance
given to the subtenant for tenant improvements; (iii) any free rent or other
economic concessions given the subtenant; and (iv) any commissions or marketing
expense paid by Tenant for such sublease. In addition, Landlord shall receive
fifty percent (50%), in the event of an assignment, of any profit derived by
Tenant from such assignment less any commissions or marketing expense paid by
Tenant for such assignment. In the event of any assignment or subletting, Tenant
shall pay to Landlord or its authorized managing agent (as directed by Landlord)
a fee of $750.00 to cover Landlord's costs of review, negotiation, preparation
or execution of any documentation regarding such assignment or subletting.
Notwithstanding the foregoing, Tenant may sublease up to 50% of the Premises,
pursuant to this Section, and Landlord shall not receive any portion of the
profit derived from such sublease. Landlord shall approve or disapprove a
proposed sublease of up to 50% of the Premises within ten (10) days following
receipt of Tenant's written request.
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(b) A change in the control of Tenant shall constitute an
assignment requiring Landlord's consent. The transfer, on a cumulative basis, of
25% or more of the voting or management control of Tenant shall constitute a
change in control for this purpose, provided that changes resulting from the
sale of stock through a recognized stock exchange shall not constitute a change
of control hereunder.
12.2 Non-Transfers. The term "Affiliate" shall mean any entity which is
controlled by controls, or is under common control with, Tenant or which merges
with, is acquired by, or acquires all of Tenant's assets or stock. "Control," as
used in this Paragraph 12.2, shall mean the possession, direct or indirect, of
the power to direct or cause the direction of the management and policies of a
person or entity, whether through the ownership of voting securities, by
contract or otherwise. Notwithstanding anything to the contrary contained in
this Paragraph 12, an assignment or subletting of all or a portion of the
Premises to an "Affiliate" of Tenant shall not be deemed a Transfer under this
Paragraph 12, provided that Tenant notifies Landlord of any such assignment or
sublease and promptly supplies Landlord with any documents or information
reasonably required by Landlord regarding such assignment or sublease or such
Affiliate, and further provided that such assignment or sublease is not a
subterfuge by Tenant to avoid its obligations and Tenant remains liable under
this Lease.
13. DEFAULT; REMEDIES.
13.1 Default. The occurrence of any one of the following events shall
constitute an event of default on the part of Tenant ("Default"):
(a) The abandonment of the Premises by Tenant;
(b) Failure to pay any installment of Base Rent, Additional Rent,
or any other monies due and payable hereunder, said failure continuing for a
period of 5 days after Tenant receives notices that such payment was not
received when due, which notice shall be in lieu of and not in addition to any
notice required by statute;
(c) A general assignment by Tenant or any guarantor for the
benefit of creditors;
(d) The filing of a voluntary petition of bankruptcy by Tenant or
any guarantor; the filing of a voluntary petition for an arrangement; the filing
of a petition, voluntary or involuntary, for reorganization; or the filing of an
involuntary petition by Tenant's creditors or guarantors;
(e) Receivership, attachment, of other judicial seizure of the
Premises or all or substantially all of Tenant's assets on the Premises;
(f) Failure of Tenant to maintain insurance as required by
Paragraph 8.2;
(g) Any breach by Tenant of its covenants under Paragraph 6.2;
(h) Failure in the performance of any of Tenant's covenants,
agreements, or obligations hereunder (except those failures specified as events
of Default in other Paragraphs of this Paragraph 13.1 which shall be governed by
such other Paragraphs), which failure continues for 20 days after written notice
thereof from Landlord to Tenant; provided that, if Tenant has exercised
reasonable diligence to cure such failure and such failure cannot be cured
within such 20-day period despite reasonable diligence, tenant shall not be in
default under this subparagraph unless Tenant fails thereafter diligently and
continuously to prosecute the cure to completion;
13.2 Remedies. In the event of any Default by Tenant, Landlord shall
have any or all of the following remedies:
(a) Termination. In the event of any Default by Tenant, then in
addition to any other remedies available to Landlord at law or in equity and
under this Lease, Landlord shall have the immediate option to terminate this
Lease and all rights of Tenant hereunder by giving written notice of such
intention to terminate. In the event that Landlord shall elect to so terminate
this Lease then Landlord may recover from Tenant:
(1) the worth at the time of award of any unpaid Rent and
any other sums due and payable which have been earned at the time of such
termination; plus
(2) the worth at the time of award of the amount by which
the unpaid Rent and any other sums due and payable which would have been earned
after termination until the time of award exceeds the amount of such rental loss
Tenant proves could have been reasonably avoided; plus
(3) the worth at the time of award of the amount by which
the unpaid Rent and any other sums due and payable for the balance of the term
of this Lease after the time of award exceeds the amount of such rental loss
that Tenant proves could be reasonably avoided; plus
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(4) any other amount necessary to compensate Landlord for
all the detriment proximately caused by Tenant's failure to perform its
obligations under this Lease or which in the ordinary course would be likely to
result therefrom, including, without limitation, any costs or expenses incurred
by Landlord (i) in retaking possession of the Premises; (ii) in maintaining,
repairing, preserving, restoring, replacing, cleaning, the Premises or any
portion thereof, including such acts for reletting to a new lessee or lessees;
(iii) for leasing commissions; or (iv) for any other costs necessary or
appropriate to relet the Premises; plus
(5) such reasonable attorneys' fees incurred by Landlord
as a result of a Default, and costs in the event suit is filed by Landlord to
enforce such remedy; and plus
(6) at Landlord's election, such other amounts in addition
to or in lieu of the foregoing as may be permitted from time to time by
applicable law. As used in subparagraphs (1) and (2) above, the "worth at the
time of award" is computed by allowing interest at an annual rate equal to
twelve percent (12%) per annum or the maximum rate permitted by law, whichever
is less. As used in subparagraph (3) above, the "worth at the time of award" is
computed by discounting such amount at the discount rate of the Federal Reserve
Bank of San Francisco at the time of award, plus one percent (1 %). Tenant
waives redemption or relief from forfeiture under California Code of Civil
Procedure Sections 1174 and 1179, or under any other present or future law, in
the event Tenant is evicted or Landlord takes possession of the Premises by
reason of any Default of Tenant hereunder.
(b) Continuation of Lease. In the event of any Default by Tenant,
then in addition to any other remedies available to Landlord at law or in equity
and under this Lease, Landlord shall have the remedy described in California
Civil Code Section 1951.4 (Landlord may continue this Lease in effect after
Tenant's Default and abandonment and recover Rent as it becomes due, provided
tenant has the right to sublet or assign, subject only to reasonable
limitations).
(c) Re-entry. In the event of any Default by Tenant, Landlord
shall also have the right, with or without terminating this Lease, in compliance
with applicable law, to re-enter the Premises and remove all persons and
property from the Premises; such property may be removed and stored in a public
warehouse or elsewhere at the cost of and for the account of Tenant.
(d) Reletting. In the event of the abandonment of the Premises by
Tenant or in the event that Landlord shall elect to re-enter or shall take
possession of the Premises pursuant to legal proceeding or pursuant to any
notice provided by law, then if Landlord does not elect to terminate this Lease
as provided in Paragraph a, Landlord may from time to time, without terminating
this Lease, relet the Premises or any part thereof for such term or terms and at
such rental or rentals 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. In the event that Landlord shall elect to so relet,
then rentals received by Landlord from such reletting shall be applied in the
following order: (1) to reasonable attorneys' fees incurred by Landlord as a
result of a Default and costs in the event suit is filed by Landlord to enforce
such remedies; (2) to the payment of any indebtedness other than Rent due
hereunder from Tenant to Landlord; (3) to the payment of any costs of such
reletting; (4) to the payment of the costs of any alterations and repairs to the
Premises; (5) to the payment of Rent due and unpaid hereunder; and (6) the
residue, if any, shall be held by landlord and applied in payment of future Rent
and other sums payable by Tenant hereunder as the same may become due and
payable hereunder. Should that portion of such rentals received from such
reletting during any month, which is applied to the payment of Rent hereunder,
be less than the Rent payable during the month by Tenant hereunder, then Tenant
shall pay such deficiency to Landlord. Such deficiency shall be calculated and
paid monthly. Tenant shall also pay to Landlord, as soon as ascertained, any
costs and expenses incurred by Landlord in such reletting or in making such
alterations and repairs not covered by the rentals received from such reletting.
(e) Termination. No re-entry or taking of possession of the
Premises by Landlord pursuant to this Addendum shall be construed as an election
to terminate this Lease unless a written notice of such intention is given to
Tenant or unless the termination thereof is 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.
(f) Cumulative Remedies. The remedies herein provided are not
exclusive and Landlord shall have any and all other remedies provided herein or
by law or in equity.
(g) No Surrender. No act or conduct of Landlord, whether
consisting of the acceptance of the keys to the premises, or otherwise, shall be
deemed to be or constitute an acceptance of the surrender of the premises by
tenant prior to the expiration of the term, and such acceptance by Landlord of
surrender by tenant shall only flow from and must be evidenced by a written
acknowledgment of acceptance of surrender signed by landlord. The surrender of
this lease by tenant, voluntarily or otherwise, shall not work a merger unless
Landlord elects in writing that
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such merger take place, but shall operate as an assignment to Landlord of any
and all, existing subleases, or Landlord may, at its option, elect in writing to
treat such surrender as a merger terminating Tenant's estate under this Lease,
and thereupon Landlord may terminate any or all such subleases by notifying the
sublessee of its election so to do within five (5) days after such surrender.
(h) Notice Provisions. Tenant agrees that any notice given by
Landlord pursuant to Paragraph 13.1 of the Lease shall satisfy the requirements
for notice under California Code of Civil Procedure Section 1161, and Landlord
shall not be required to give any additional notice in order to be entitled to
commence an unlawful detainer proceeding. Should Landlord prepare any notice to
Tenant for failure to pay rent, additional rent or perform any other obligation
under the Lease, Tenant shall pay to Landlord, without any further notice from
Landlord, the additional sum of $75.00 which the parties hereby agree represents
a fair and reasonable estimate of the costs Landlord will incur by reason of
preparing such notice.
13.3 Late Charges. Tenant hereby acknowledges that late payment by
Tenant to Landlord of Rent and other sums due hereunder will cause Landlord to
incur costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges. Accordingly, if any installment of Rent or
other sum due from Tenant shall not be received by Landlord or Landlord's
designee within 4 days after such amount shall be due, then, without any
requirement for notice to Tenant, Tenant shall pay to Landlord a late charge
equal to 5% of such overdue amount. The parties hereby agree that such late
charge represents a fair and reasonable estimate of the costs Landlord will
incur by reason of late payment by Tenant. Acceptance of such late charge by
Landlord shall in no event constitute a waiver of Tenant's Default with respect
to such overdue amount, nor prevent Landlord from exercising any of the other
rights and remedies granted hereunder. In addition, should Landlord be unable to
negotiate any payment made by Tenant on the first attempt by Landlord and
without any notice to Tenant, Tenant shall pay to Landlord a fee of $50.00 per
item which the parties hereby agree represents a fair and reasonable estimate of
the costs Landlord will incur by reason of Landlord's inability to negotiate
such item(s). Notwithstanding the foregoing or anything to the contrary, Tenant
shall not be obligated to pay a late charge until each time after the fourth
time during the term or extended term of that Tenant fails to pay any amount due
under this Lease within 4 days after said amount shall be due.
14. CONDEMNATION. If the Premises or any portion thereof are taken under the
power of eminent domain or sold under the threat of exercise of said power (all
of which are herein called "condemnation"), this Lease shall terminate as to the
part so taken as of the date the condemning authority takes title or possession,
whichever first occurs. If more than 10% of the floor area of the Premises, or
more than 25% of the portion of the Common Areas designated for Tenant's,
parking, is taken by condemnation, Tenant may, at Tenant's option, to be
exercised in writing within 10 days after Landlord shall have given Tenant
written notice of such taking (or in the absence of such notice, within 10 days
after the condemning authority shall have taken possession), terminate this
Lease as of the date the condemning authority takes such possession. If Tenant
does not terminate this Lease in accordance with the foregoing, this Lease shall
remain in full force and effect as to the portion of the Premises remaining,
except that the Base Rent shall be reduced in the same proportion as the
rentable floor area of the Premises taken bears to the total rentable floor area
of the premises. No reduction of Base Rent shall occur if the condemnation does
not apply to any portion of the Premises. Any award for the taking of all or any
part of the Premises under the power of eminent domain or any payment made under
threat of the exercise of such power shall be the property of Landlord;
provided, however, that Tenant shall be entitled to any compensation, separately
awarded to Tenant, for Tenant's relocation expenses and/or loss of Tenant's
trade fixtures. In the event that this Lease is not terminated by reason of such
condemnation, Landlord shall to the extent of its net severance damages in the
condemnation matter, repair any damage to the Premises caused by such
condemnation authority. Tenant shall be responsible for the payment of any
amount in excess of such net severance damages required to complete such repair.
15. ESTOPPEL CERTIFICATE AND FINANCIAL STATEMENTS.
15.1 Estoppel Certificate. Each party (herein referred to as "Responding
Party") shall within 10 days after written notice from the other Party (the
"Requesting Party") execute, acknowledge, and deliver to the Requesting Party,
to the extent it can truthfully do so, an estoppel certificate in the form
attached hereto as Exhibit C, plus such additional information, confirmation,
and statements as be reasonably requested by the Requesting Party. Should Tenant
fail to deliver an executed and acknowledged estoppel certificate to Landlord
as prescribed herein, Tenant hereby authorizes Landlord to act as Tenant's
attorney-in-fact in executing such
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estoppel certificate or, at Landlord's option, Tenant shall pay a fee of $100.00
per day ("Estoppel Delay Fee") for each day after the 10 days' written notice in
which Tenant fails to comply with this requirement.
15.2 Financial Statement. If Landlord desires to finance, refinance, or
sell the Building, Industrial Center, or any part thereof, Tenant shall deliver
to any potential lender or purchaser designated by Landlord such financial
statements of Tenant as may be reasonably required by such lender or purchaser,
including but not limited to Tenant's financial statements for the past 3 years.
All such financial statements shall be received by Landlord and such lender or
purchaser in confidence and shall be used only for the purposes herein set
forth.
16. ADDITIONAL COVENANTS AND PROVISIONS.
16.1 Severability. The invalidity of any provision of this Lease, as
determined by a court of competent jurisdiction, shall not affect the validity
of any other provision hereof.
16.2 Interest on Past-Due Obligations. Any monetary payment due Landlord
hereunder not received by Landlord within 10 days following the date on which it
was due shall bear interest from the date due at 12% per annum, but not
exceeding the maximum rate allowed by law in addition to the late charge
provided for in Paragraph 13.3.
16.3 Time of Essence. Time is of the essence with respect to the
performance of all obligations to be performed or observed by the Parties under
this Lease.
16.4 Landlord Liability. Tenant, its successors, and assigns shall not
assert nor seek to enforce any claim for breach of this Lease against any of
Landlord's assets other than Landlord's interest in the Industrial Center.
Tenant agrees to look solely to such interest for the satisfaction of any
liability or claim against Landlord under this Lease. In no event whatsoever
shall Landlord (which term shall include, without limitation, any general or
limited partner, trustees, beneficiaries, officers, directors, or stockholders
of Landlord) ever be personally liable for any such liability.
16.5 No Prior or Other Agreements. This Lease contains all agreements
between the Parties with respect to any matter mentioned herein, and supersedes
all prior or contemporaneous oral or written agreements or understandings.
16.6 Notice Requirements. All notices required or permitted by this
Lease shall be in writing and may be delivered in person (by hand, messenger, or
courier service) or may be sent by regular, certified, or registered mail or
U.S. Postal Service Express Mail, with postage prepaid, or by facsimile
transmission during normal business hours, and shall be deemed sufficiently
given if served in a manner specified in this Paragraph 16.6. The addresses
noted adjacent to a Party's signature on this Lease shall be that Party's
address for delivery or mailing of notice purposes. Either Party may by written
notice to the other specify a different address for notice purposes, except that
upon Tenant's taking possessing of the Premises, the Premises shall constitute
Tenant's address for the purpose of mailing or delivering notices to Tenant. A
copy of all notices required or permitted to be given to Landlord hereunder
shall be concurrently transmitted to such party or parties at such addresses as
Landlord may from time to time hereafter designate by written notice to Tenant.
16.7 Date of Notice. Any notice sent by registered or certified mail,
return receipt requested, shall be deemed given on the date of delivery shown on
the receipt card, or if no delivery date is shown, the postmark thereon. If sent
by regular mail, the notice shall be deemed given 48 hours after the same is
addressed as required herein and mailed with postage prepaid. Notices delivered
by United States Express Mail or an overnight courier that guarantees next day
delivery shall be deemed given 24 hours after delivery of the same to the United
States Postal Service or courier. If any notice is transmitted by facsimile
transmission or similar means, the same shall be deemed served or delivered upon
telephone or facsimile confirmation of receipt of the transmission thereof,
provided a copy is also delivered via hand or overnight delivery or certified
mail. If notice is received on a Saturday, Sunday, or legal holiday, it shall be
deemed received on the next business day.
16.8 Waivers. No waiver by Landlord of a Default by Tenant shall be
deemed a waiver of any other town, covenant, or condition hereof, or of any
subsequent Default by Tenant of the same or any other term, covenant, or
condition hereof.
16.9 Holdover. Tenant has no right to retain possession of the Premises
or any part thereof beyond the expiration or earlier termination of this Lease.
If Tenant holds over with the consent of Landlord: (a) the Base Rent payable
shall be increased to 150% of the Base Rent applicable during the month
immediately preceding such expiration or earlier termination; (b) Tenant's right
to possession shall terminate on 30 days notice from Landlord; and (c) all other
terms and conditions of this Lease shall continue to apply. Nothing contained
herein shall be
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construed as a consent by Landlord to any holding over by Tenant. Tenant shall
indemnify, defend, and hold Landlord harmless from and against any and all
claims, demands, actions, losses, damages, obligations, costs, and expenses,
including, without limitation, attorneys' fees incurred or suffered by Landlord
by reason of Tenant's failure to surrender the Premises on the expiration or
earlier termination of this Lease in accordance with the provisions of this
Lease.
16.10 Cumulative Remedies. No remedy or election hereunder shall be
deemed exclusive but shall, wherever possible, be cumulative with all other
remedies in law or in equity.
16.11 Binding Effect: Choice of Law. This Lease shall be binding upon
the Parties, their personal representatives, successors, and assigns, and be
governed by the laws of the State in which the Premises are located. Any
litigation between the Parties hereto concerning this Lease shall be initiated
in the county in which the Premises are located.
16.12 Landlord. The covenants and obligations contained in this Lease on
the part of Landlord are binding on Landlord, its successors, and assigns only
during their respective period of ownership of an interest in the Building. In
the event of any transfer or transfers of such title to the Building, Landlord
(and, in the case of any subsequent transfers or conveyances, the then grantor)
shall be concurrently freed and relieved from and after the date of such
transfer or conveyance, without any further instrument or agreement, of all
liability with respect to the performance of any covenants or obligations on the
part of Landlord contained in this Lease thereafter to be performed.
16.13 Attorneys' Fees and Other Costs. If any Party brings an action or
proceeding to enforce the terms hereof or declare rights hereunder, the
Prevailing Party (as hereafter defined) in any such proceeding shall be entitled
to reasonable attorneys' fees. The term "Prevailing Party" shall include,
without limitation, a Party who substantially obtains or defeats the relief
sought. Landlord shall be entitled to attorneys' fees, costs, and expenses
incurred in the preparation and service of notices of Default and consultations
in connection therewith, whether or not a legal action is subsequently commenced
in connection with such Default or resulting breach. Tenant shall reimburse
Landlord on demand for all reasonable legal, engineering, and other professional
services expenses incurred by Landlord in connection with all requests by Tenant
or any lender of Tenant for consent, waiver or approval of any kind.
16.14 Landlord's Access; Showing Premises; Repairs. Landlord and
Landlord's agents shall have the right to enter the Premises at any time, in the
case of an emergency, and otherwise at reasonable times upon reasonable notice
for the purpose of showing the same to prospective purchasers, lenders, or
tenants, and making such alterations, repairs, improvements, or additions to the
Premises or to the Building, as Landlord may reasonably deem necessary. Landlord
may at any time place on or about the Premises or Building any ordinary "For
Sale" signs, and Landlord may at any time during the last 180 days of the term
hereof place on or about the Premises any ordinary "For Lease" signs. All such
activities of Landlord shall be without abatement of rent or liability to
Tenant.
16.15 Signs. Tenant shall not place any signs at or upon the exterior of
the Premises or the Building, except that Tenant may, with Landlord's prior
written consent, install (but not on the roof) such signs as are reasonably
required to advertise Tenant's own business so long as such signs are in a
location designated by Landlord and comply with sign ordinances and the signage
criteria established for the Industrial Center by Landlord.
16.16 Termination; Merger. Unless specifically stated otherwise in
writing by Landlord, the voluntary or other surrender of this Lease by Tenant,
the mutual termination or cancellation hereof, or a termination hereof by
Landlord for Default by Tenant, shall automatically terminate any sublease or
lesser estate in the Premises; provided, however, Landlord shall, in the event
of any such surrender, termination, or cancellation, have the option to continue
any one or all of any existing subtenancies. Landlord's failure within 10 days
following any such event to make a written election to the contrary by written
notice to the holder of any such lesser interest shall constitute Landlord's
election to have such event constitute the termination of such interest.
16.17 Quiet Possession. Upon payment by Tenant of the Base Rent and
Additional Rent for the Premises and the performance of all of the covenants,
conditions, and provisions on Tenant's part to be observed and performed under
this Lease, Tenant shall have quiet possession of the Premises for the entire
term hereof, subject to all of the provisions of this Lease.
16.18 Subordination; Attornment; Non-Disturbance.
(a) Subordination. This Lease shall be subject and subordinate to
any ground lease, mortgage, deed of trust, or other hypothecation or mortgage
(collectively, "Mortgage") now or hereafter placed by Landlord upon the real
property of which the Premises are a part, to
-14-
any and all advances made on the security thereof, and to all renewals,
modifications, consolidations, replacements, and extensions thereof. Tenant
agrees that any person holding any Mortgage shall have no duty, liability, or
obligation to perform any of the obligations of Landlord under this Lease. In
the event of Landlord's default with respect to any such obligation, Tenant will
give any Lender, whose name and address have previously been furnished in
writing to Tenant, notice of a default by Landlord. Tenant may not exercise any
remedies for default by Landlord unless and until Landlord and the Lender shall
have received written notice of such default and a reasonable time (not less
than 90 days) shall thereafter have elapsed without the default having been
cured. If any Lender shall elect to have this Lease superior to the lien of its
Mortgage and shall give written notice thereof to Tenant, this Lease shall be
deemed prior to such Mortgage. The provisions of a Mortgage relating to the
disposition of condemnation and insurance proceeds shall prevail over any
contrary provisions contained in this Lease.
(b) Attornment. Subject to the nondisturbance provisions of
subparagraph (c) of this Paragraph 16.18, Tenant agrees to attorn to a Lender or
any other party who acquires ownership of the Premises by reason of a
foreclosure of a Mortgage. In the event of such foreclosure, such new owner
shall not: (i) be liable for any act or omission of any prior landlord or with
respect to events occurring prior to acquisition of ownership, (ii) be subject
to any offsets or defenses which Tenant might have against any prior Landlord,
or (iii) be liable for security deposits or be bound by prepayment of more than
one month's rent.
(c) Non-Disturbance. With respect to a Mortgage entered into by
Landlord after the execution of this Lease, Tenant's subordination of this Lease
shall be subject to receiving assurance (a "nondisturbance agreement") from the
Mortgage holder that Tenant's possession and this Lease will not be disturbed so
long as Tenant is not in default and attorns to the record owner of the
Premises.
(d) Self-Executing. The agreements contained in this Paragraph
16.18 shall be effective without the execution of any further documents;
provided, however, that upon written request from Landlord or a Lender in
connection with a sale, financing, or refinancing of Premises, Tenant and
Landlord shall execute such further writings as may be reasonably required to
separately document any such subordination or nonsubordination, attornment,
and/or nondisturbance agreement, as is provided for herein. Landlord is hereby
irrevocably vested with full power to subordinate this Lease to a Mortgage.
16.19 Rules and Regulations. Tenant agrees that it will abide by, and to
cause its employees, suppliers, shippers, customers, tenants, contractors, and
invitees to abide by, all reasonable rules and regulations ("Rules and
Regulations") which Landlord may make from time to time for the management,
safety, care, and cleanliness of the Industrial Center, the parking and
unloading of vehicles, and the preservation of good order, as well as for the
convenience of other occupants or tenants of the Building and the Industrial
Center and their invitees. Landlord shall not be responsible to Tenant for the
noncompliance with said Rules and Regulations by other tenants of the Industrial
Center.
16.20 Security Measures. Tenant acknowledges that the rental payable to
Landlord hereunder does not include the cost of guard service or other security
measures. Landlord has no obligations to provide same. Except for the gross
negligence or intentional acts of Landlord and its agents, Tenant assumes all
responsibility for the protection of the Premises, Tenant, its agents, and
invitees and their property from the acts of third parties.
16.21 Reservations. Landlord reserves the right to grant such easements
that Landlord deems necessary and to cause the recordation of parcel maps, so
long as such easements and maps do not unreasonably interfere with the use of
the Premises by Tenant. Tenant agrees to sign any documents reasonably requested
by Landlord to effectuate any such easements or maps.
16.22 Conflict. Any conflict between the printed provisions of this
Lease and the typewritten or handwritten provisions shall be controlled by the
typewritten or handwritten provisions.
16.23 Offer. Preparation of this lease by either Landlord or Tenant or
Landlord's agent or Tenant's agent and submission of same to Tenant or Landlord
shall not be deemed an offer to lease. This Lease is not intended to be binding
until executed and delivered by all Parties hereto.
16.24 Amendments. This Lease may be modified only in writing, signed by
the parties in interest at the time of the modification.
16.25 Multiple Parties. Except as otherwise expressly provided herein,
if more than one person or entity is named herein as Tenant, the obligations of
such persons shall be the joint and several responsibility of all persons or
entities named herein as such Tenant.
-15-
16.26 Authority. Each person signing on behalf of Landlord or Tenant
warrants and represents that she or he is authorized to execute and deliver this
Lease and to make it a binding obligation of Landlord or Tenant.
[SIGNATURES ON FOLLOWING PAGE]
-16-
The parties hereto have executed this Lease at the place and on the
dates specified below their respective signatures.
LANDLORD: TENANT:
AMB PROPERTY, L.P. CAPSTONE TURBINE CORPORATION
a Delaware limited partnership A Delaware corporation
By: AMB Property Corporation,
a Maryland corporation
By: /s/ X. XXXXX 9/26/00
-------------------------------
By: /s/ XXXXXX X. XXXXX Its: CFO
------------------------------ ------------------------------
N/A
By: ------------------------------
Xxxxxx X. Xxxxx, Vice President Telephone: (000) 000-0000
------------------------
Telephone: (000) 000-0000 Facsimile: (000) 000-0000
Facsimile: (000) 000-0000 Executed at: Manhattan Beach, CA
Executed at: San Francisco, CA Executed at: 90266
on: 10/11/2000 ADDRESS --------------------------
ADDRESS ADDRESS
000 Xxxxxxxxxx Xxxxxx ----------------------------------
Xxx Xxxxxxxxx, XX 00000 ----------------------------------
Tax ID:
----------------------------------
-17-
GLOSSARY
The following terms in the Lease are defined in the paragraphs opposite
the terms.
TERM DEFINED IN PARAGRAPH
Assignment 12
Base Rent 1.4
Basic Provisions 1
Building 1.2
Building Operating Expenses 4.2
Commencement Date 1.3
Commencement Date Certificate 3.3
Condemnation 14
Default 13.1
Expiration Date 1.3
HVAC 4.2(a)(x)
Hazardous Substance 6.2
Indemnity 8.5
Landlord 1.1
Landlord Entities 6.2(c)
Lease 1.1
Mortgage 16.18
Operating Expenses 4.2
Party/Parties 1.1
Permitted Use 1.8
Premises 1.2
Real Property Taxes 10.2
Rent 4.1
Reportable Use 6.2
Requesting Party 15
Responding Party 15
Rules and Regulations 16.19
Security Deposit 1.7,5
Taxes 10.2
Tenant 1.1
Tenant Acts 9.2
Tenant's Entity 6.2(c)
Tenant's Share 1.5
Term 1.3
Use 6.1
-18-
AMB PROPERTY, L.P.,
A DELAWARE LIMITED PARTNERSHIP
INDUSTRIAL LEASE
RENT ADJUSTMENT ADDENDUM
This Rent Adjustment Addendum is a part of the Lease dated September 251, 2000,
by and between AMB PROPERTY, L.P. ("Landlord") and Capstone Turbine Corporation
("Tenant") for the premises commonly known as 00000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxxxxxxxxx.
Monthly Base Rent for the each of the periods designated in this Addendum
("Adjustment Periods") shall be the amount calculated in accordance with the
alternative selected below ("Rent Adjustment Alternative"), but in no event
shall the monthly Base Rent for an Adjustment Period be less than the highest
monthly rent payable during the term preceding the Adjustment Period.
1. ADJUSTMENT PERIODS:
October 1, 2000 to March 31, 2003 ("Period One")
April 1, 2003 to September 30, 2005 ("Period Two")
October 1, 2005 to March 31, 2008 ("Period Three")
April 1, 2008 to September 30, 2010 ("Period Four")
October 1, 2010 to November 30, 2010 ("Period Five")
2. RENT ADJUSTMENT ALTERNATIVES
[X] Fixed rent adjustment ("Fixed Rent Adjustment")
$44,078.00 shall be the monthly Base Rent for Period One.
$47,384.00 shall be the monthly Base Rent for Period Two.
$50,938.00 shall be the monthly Base Rent for Period Three.
$54;758.00 shall be the monthly Base Rent for Period Four.
$58,865.00 shall be the monthly Base Rent for Period Five.
[ ] Cost of living adjustment ("CPI Adjustment")
Monthly Base Rent shall be calculated using the following CPI
index ("Index"):
[ ] Urban Wage Earners and Clerical Workers
[ ] All Urban Consumers
[ ] ________________________________________
The Comparison Month is:
[ ] the first month of the term of this Lease; or
[ ] ________________________________________
[ ] Market rent ("Market Rent Adjustment")
3. CALCULATION OF RENT ADJUSTMENT
LANDLORD: TENANT:
AMB PROPERTY, L.P. CAPSTONE TURBINE CORPORATION
A DELAWARE LIMITED-PARTNERSHIP A DELAWARE CORPORATION
By: AMB Property Corporation,
a Maryland corporation, its
general partner
By: /s/ XXXXXX XXXXX
------------------------------
Xxxxxx Xxxxx, Vice President /s/ X. XXXXX
-----------------------------------
By: X. Xxxxx
Its: CFO
By: [ILLEGIBLE]
Its: [ILLEGIBLE]
-----------------------------------
1
AMB PROPERTY, L.P.,
A DELAWARE LIMITED PARTNERSHIP
INDUSTRIAL LEASE
OPTION TO EXTEND
This Option to Extend is a part of the Lease dated September 25, 2000, by and
between AMB PROPERTY, L.P. ("Landlord") and Capstone Turbine Corporation
("Tenant") for the premises commonly known as 00000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxxxxxxxxx.
1. OPTION TO EXTEND. Landlord hereby grants to Tenant the option to extend
the term of this Lease for the following periods ("Option Periods") commencing
when the prior term expires:
December 1, 2010 to November 30, 2015 ("Period One")
December 1, 2015 to November 30, 2020 ("Period Two")
2. EXERCISE DATES. For purposes of Paragraph 4 of this Addendum,
a. the Earliest Exercise Date is 12 months prior to the date that the
Option Period would commence, and
b. the Last Exercise Date is 4 months prior to the date that the Option
Period would commence.
3. MONTHLY BASE RENT. The monthly Base Rent for each month of an Option
Period shall be the amount calculated in accordance with the alternative
selected below ("Rent Adjustment Alternative"), but in no event shall the
monthly Base Rent for an Option Period be less than the highest monthly Base
Rent payable during the term immediately preceding the Option Period.
[X] Fixed rent adjustment ("Fixed Rent Adjustment")
7.5% increase at the 1st and 31st month of each option period.
[ ] Cost of living adjustment ("CPI Adjustment")
Monthly Base Rent shall be calculated using the following CPI index
("Index"):
[ ] Urban Wage Earners and Clerical Workers
[ ] All Urban Consumers
[ ]
----------------------------------------
The Comparison Month is:
[ ] the first month of the term of this Lease; or
[ ]
------------------------------
[ ] Market rent ("Market Rent Adjustment")
4. CONDITIONS TO EXERCISE OF OPTION. Tenant's right to extend is conditioned
upon and subject to each of the following:
a. In order to exercise an option to extend, Tenant must give written
notice of such election to Landlord and Landlord must receive the same by the
Last Exercise Date but not prior to the Earliest Exercise Date. If proper
notification of the exercise of an option is not given and/or received, such
option shall automatically expire. Options (if there are more than one) may only
be exercised consecutively. Failure to exercise an option terminates that option
and all subsequent options. Tenant acknowledges that because of the importance
to Landlord of knowing no later than the Last Exercise Date whether or not
Tenant will exercise the option, the failure of Tenant to notify Landlord by the
Last Exercise Date will conclusively be presumed an election by Tenant not to
exercise the option.
b. Tenant shall have no right to exercise an option (i) if Tenant is in
Default or (ii) in the event that Landlord has given to Tenant three or more
notices of separate Defaults during the 12-month period immediately preceding
the exercise of the option, whether or not the Defaults are cured. The period of
time within which an option may be exercised shall not be extended or enlarged
by reason of Tenant's inability to exercise an option because of the provisions
of this paragraph.
c. All of the terms and conditions of this Lease, except where
specifically modified by this Addendum, shall apply.
1
d. The options are personal to the Tenant, cannot be assigned or exercised
by anyone other than the Tenant, and only while the Tenant is in full possession
of the Premises and without the intention of thereafter assigning or subletting.
LANDLORD: TENANT:
AMB PROPERTY, L.P. Capstone Turbine Corporation
a Delaware limited partnership a California corporation
By: AMB Property Corporation,
a Maryland corporation
BY By: X. Xxxxx
Xxxxxx Xxxxx, Vice President Its: CFO 9/26/00
/s/ XXXXXX XXXXX By: /s/ X. XXXXX
---------------------------- -------------
Its: CFO
2
AMB PROPERTY, L.P.,
A DELAWARE LIMITED PARTNERSHIP
INDUSTRIAL LEASE
ADDENDUM
This Addendum to Industrial Lease ("Addendum") is made and entered into as
of the 25th day of September, 2000, by and between AMB Property, L.P., a
Delaware limited partnership ("Landlord"), and Capstone Turbine Corporation, a
Delaware corporation ("Tenant"), with reference to that certain Industrial Lease
dated as of September 25th, 2000, by and between Landlord and Tenant ("Lease").
The promises, covenants, agreements and declarations made and set forth herein
are intended to and shall have the same force and effect as if set forth at
length in the body of the Lease. To the extent that the provisions of this
Addendum are inconsistent with the terms and conditions of the Lease, the terms
of this Addendum shall prevail and control for all purposes. Unless otherwise
defined below, all terms used in this Addendum and defined in the Lease shall
have the same meaning as is ascribed to such terms in the Lease.
1. Delivery of Premises. Subject to Landlord performing the improvements
set forth on Attachment 2 and delivering the Premises pursuant to Section 2.6 of
the Lease, Tenant acknowledges that it has inspected and accepts the Premises in
their present "as-is" condition as suitable for the purpose for which the
Premises are leased. The taking of possession by Tenant shall be conclusive to
establish that the Premises are in good and satisfactory condition when
possession is taken, except as expressly set forth in this Lease. Tenant
further acknowledges that no representations or promises were made by Landlord
or any agent of Landlord to repair, alter, remodel or improve the Premises,
except as expressly set forth in this Lease.
2. Signage. Provided Tenant is not in default hereunder, Tenant shall have
the right to install (i) a monument sign, and (ii) exterior sign identification
of the Premises, at Tenant's sole cost and expense (collectively, "Tenant's
Signage"). Tenant's Signage shall be subject to Landlord's approval as to size,
design, location, graphics, materials, colors and similar specifications and
shall be consistent with the exterior design, materials and appearance of the
Industrial Center and the Industrial Center's signage program and shall be
further subject to and comply with all applicable local governmental laws,
rules, regulations, codes and other approvals. Landlord has the right, but not
the obligation, to oversee the installation of Tenant's Signage. The cost to
operate, if any, Tenant's Signage shall be paid for by Tenant, and Tenant shall
be separately metered for such expense (the cost of separately metering any
utility usage shall also be paid for by Tenant). Upon the expiration of the
Lease Term, or other earlier termination of this Lease, Tenant shall be
responsible for any and all costs associated with the removal of Tenant's
Signage, including, but not limited to, the cost to repair and restore the
Premises to its original condition, normal wear and tear excepted.
3. Rental Abatement. Landlord shall grant to Tenant base rental abatement
for the first 2 months of the Lease Term.
4. DWP Interconnect. Landlord shall allow Tenant the right to interconnect
with the DWP grid, subject to DWP final approval. There shall be no cost or
expense to Landlord.
5. Environmental Indemnification. Landlord shall indemnify, protect,
defend, and hold Tenant, Tenant's affiliates, and the officers, directors,
shareholders, partners, employees, managers, independent contractors, attorneys,
and agents of the foregoing ("Tenant Entities") and the Premises, harmless from
and against any and all damages, liabilities, judgments, costs, claims, liens,
expenses, penalties, loss of permits, and attorneys' and consultants' fees
arising out of or involving any Hazardous Substance that exists at or beneath
the Premises or that migrate to, beneath or from the Premises, unless directly
caused by Tenant or its agents. Landlord's obligations under this Paragraph 4
shall include, but not be limited to, the effects of any contamination or injury
to persons, property, or the environment and the cost of investigation
(including consultants' and attorneys' fees and testing), removal, remediation,
restoration and/or abatement thereof, or of any contamination therein involved.
Landlord's obligations under this Paragraph 4 shall survive the Expiration Date
or earlier termination of this Lease directly caused by Tenant.
1
6. Early Possession. Tenant shall be given early possession of the
premises (subject to all terms and conditions of the Lease with the exception of
Rent) upon full execution of Lease documents.
7. Roof Maintenance. Roof maintenance following the Commencement Date
shall be the responsibility of Tenant, subject to an annual maintenance cost cap
of $1,500.00. All costs in excess of $1,500 shall be paid by Landlord except
that Tenant shall bear the entire cost of any roof repair attributable to a
negligent or intentional act or omission of Tenant's Entities.
8. Tenant Improvements. Tenant shall have the right to construct canopies
over the east parking lot/yard portion of the Premises, subject to Landlord's
reasonable approval. Such canopies shall be removed at the end of the Lease
Term.
9. Subordination - Non-Disturbance from Existing Lender. Prior to the
Commencement Date, Landlord shall provide Tenant with a commercially reasonable
subordination and non-disturbance agreement from any existing lender to whose
interest, Tenant's interest in this Lease is subordinate.
IN WITNESS WHEREOF, the parties hereto have executed this Addendum
as of the date first written above.
LANDLORD:
AMB PROPERTY, L.P.,
a Delaware limited partnership
By: AMB Property Corporation,
a Maryland corporation, its general partner
By: /s/ XXXXXX X. XXXXX
-----------------------------------
Xxxxxx X. Xxxxx, Vice President
TENANT:
CAPSTONE TURBINE CORPORATION,
a Delaware corporation
By: /S/ X. XXXXX 9/26/00
----------------------------------
Its: CFO
---------------------------------
2
ATTACHMENT 1
PARKING DIAGRAM
[PARKING DIAGRAM]
Xxxx 0
00, 000 XX
00000 Xxxxx Xx.
3
Attachment 2
LANDLORD'S WORK
As part of Landlord's Work, Landlord will:
1. Carpet (in a mutually agreeable color/grade) the entire office space.
2. Once the cul-de-sac is completed, Landlord shall install a wrought iron
fence with gate similar to the existing entrance to the property (or a
mutually acceptable substitute).
3. Repair, clean, and seal the warehouse floor.
4. Assist in the installation of a 4" high pressure gas line; any repair work
necessitated by the installation shall be Landlord's sole cost and
expense.
5. Install traffic rated drain across the northeastern ground level door.
6. Landlord warrants that the parking lot shall drain properly with no
unreasonable puddling.
7. Term shall not commence until Landlord's work as described in Item 3
above, as well connection to permanent electrical power is completed.
4
AMB PROPERTY, L.P.,
DELAWARE LIMITED PARTNERSHIP
INDUSTRIAL LEASE
TENANT IMPROVEMENT ADDENDUM
This Tenant Improvement Addendum is a part of the Lease dated September 25,
2000, by and between AMB PROPERTY, L.P. "(Landlord") and Capstone Turbine
Corporation, a Delaware corporation ("Tenant") for the premises commonly known
as 00000 Xxxxx Xxxxxx, Xxx Xxxx, Xxxxxxxxxx.
Tenant may construct at its sole cost and expense the improvements
("Alterations") described on Exhibit 1 attached hereto. Prior to commencement of
construction, Tenant shall obtain and deliver to Landlord any building permit
required by applicable law and a copy of the executed construction contract(s).
Tenant shall reimburse Landlord within 10 days after the rendition of a xxxx for
all of Landlord's actual out-of-pocket costs incurred in connection with the
Alterations, including, without limitation, all management, engineering, outside
consulting, and construction fees incurred by or on behalf of Landlord for the
review and approval of Tenant's plans and specifications and for the monitoring
of construction of the Alterations. Tenant shall require its contractor to
maintain insurance in the amounts and in the forms described in Exhibit 2. The
Alterations shall be constructed by licensed contractors approved by Landlord
and in accordance with rules, such as hours of construction, imposed by
Landlord. The Alterations shall be completed lien free, in accordance with the
plans and specifications described in Exhibit 1, in a good, workmanlike, and
prompt manner, with new materials of first-class quality and comply with all
applicable local, state, and federal regulations. The competed Alterations shall
be the property of Landlord and shall, subject to the provisions of the next
sentence, be surrendered with the Premises upon the expiration or sooner
termination of this Lease.
Prior to commencing construction of the Improvements, Tenant shall obtain from
its contractors and deliver to Landlord a commercially reasonable waiver and
release of any and all claims against Landlord and liens against the Premises to
which such contractor might at any time be entitled and to provide such payment
and performance bonds as Landlord may require. The delivery of the waiver and
release of claims and liens and such bonds shall be a condition precedent to
Tenant's ability to begin its construction work at the Premises.
Tenant shall pay when due all claims for labor or materials furnished or alleged
to have been furnished to or for Tenant at or for use on the Premises. Tenant
shall give Landlord not less than 10 days' notice prior to the commencement of
any work in, on, or about the Premises, and Landlord shall have the right to
post notices of non-responsibility in or on the Premises as provided by law.
Tenant agrees to indemnify, protect, and defend Landlord and hold Landlord
harmless against any loss, liability, or damage resulting from construction of
the Alterations.
EXHIBITS
Exhibit 1: Description of Alterations and plans and specifications
Exhibit 2: Insurance requirements
1
EXHIBIT A
DESCRIPTION OF PREMISES
[DESCRIPTION OF PREMISES]
Xxxx 0
00, 000 XX
00000 Xxxxx Xx.
COMMENCEMENT DATE MEMORANDUM
LANDLORD: AMB PROPERTY, L.P.
TENANT: Capstone Turbine Corporation
------------------------------------
LEASE DATE: September 25, 2000
------------------------------------
PREMISES: 00000 Xxxxx Xxxxxx
------------------------------------
Xxx Xxxx, XX
------------------------------------
Tenant hereby accepts the Premises as being in the condition required
under the Lease.
The Commencement Date of the Lease is October 1, 2000.
The Expiration Date of the Lease is September 30, 2005.
LANDLORD: TENANT:
AMB PROPERTY, L.P., CAPSTONE TURBINE CORPORATION,
a Delaware limited partnership a Delaware corporation
By: AMB Property Corporation, By:
a Maryland corporation, ----------------------------
its general partner Its:
------------------------
Title:
--------------------------- -------------------------
By: Xxxxxx X. Xxxxx Telephone: ( )
Its: Vice President -------------------
Facsimile: ( )
Telephone: (000) 000-0000 -------------------
-----------------------
ADDRESS:
Facsimile: 000 000-0000
-----------------------
ADDRESS: -------------------------------
000 Xxxxxxxxxx Xxxxxx
----------------------------------- -------------------------------
Xxx Xxxxxxxxx, XX 00000 Tax ID:
----------------------------------- -------------------------------
EXHIBIT B
EXHIBIT "D"
TENANT MOVE-IN AND LEASE RENEWAL ENVIRONMENTAL QUESTIONNAIRE
FOR
COMMERCIAL AND INDUSTRIAL PROPERTIES
Property Name: Airport Business Park
Property Address: 00000 Xxxxx Xxxxxx, Xxx Xxxx, XX
Addendum to the Lease Dated September 25, 2000
Between
CAPSTONE TURBINE CORPORATION
a Delaware corporation
("Tenant")
and
AMB PROPERTY, L.P.
("Landlord")
Instructions: The following questionnaire is to be completed by the Tenant
Representative with knowledge of the planned/existing operations for the
specified building/location. A copy of the completed form must be attached to
all new leases and renewals, and forwarded to the Owner's Risk Management
Department.
1.0 PLANNED USE/OPERATIONS
1-1. Describe planned use (new Lease) or existing operations (lease renewal),
and include brief description of manufacturing processes employed.
THE MANUFACTURING PROCESSES INCLUDE: METAL FORMING, WELDING, MECHANICAL
ASSEMBLY AND PRODUCT PERFORMANCE TESTING.
2.0 HAZARDOUS MATERIALS
2-1. Are hazardous materials used or stored? If so, continue with the next
question. If not, go to Section 3.0.
YES
2-2. Are any of the following materials handled on the property? (A material is
handled if it is used, generated, processed, produced, packaged, treated,
stored, emitted, discharged, or disposed.) If so, complete this section.
If this section is not applicable, skip this section and go on to Section
5.0.
[ ] Explosives [X] Fuels [X] Oils
[ ] Solvents [ ] Oxidizers [X] Organics/Inorganics
[ ] Acids [ ] Bases [ ] Pesticides
[X] Gases [ ] PCBs [ ] Radioactive Materials
[ ] Other (please specify)
2-3. For the following groups of chemicals, please check the type(s), use(s),
and quantity of each chemical used or stored on the site. Attach either a
chemical inventory or list the chemicals in each category.
Solvents_________________ Gases __________________ SEE ATTACHMENT "A"
Type:____________________ Type:___________________
Use:_____________________ Use:____________________
Quantity:________________ Quantity:_______________
Inorganic________________ Acids___________________
Type: Type:
---------------------- ----------------------
Use: Use:
---------------------- ----------------------
Quantity: Quantity:
---------------------- ----------------------
Fuels Explosives
---------------------- ----------------------
Type: Type:
---------------------- ----------------------
Use: Use:
---------------------- ----------------------
Quantity: Quantity:
---------------------- ----------------------
Oils Bases
---------------------- ----------------------
Type: Type:
---------------------- ----------------------
Use: Use:
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Quantity: Quantity:
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Oxidizers Pesticides
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Type: Type:
---------------------- ----------------------
Use: Use:
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Quantity: Quantity:
---------------------- ----------------------
Organic Radioactive Materials
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Type: Type:
---------------------- ----------------------
Use: Use:
---------------------- ----------------------
Quantity: Quantity:
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Other
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Type:
----------------------
Use:
----------------------
Quantity:
----------------------
2
2-4. List and quantify the materials identified above. SEE ATTACHMENT "A"
================================================================================
MATERIAL PHYSICAL STATE CONTAINER SIZE NUMBER OF
CONTAINERS
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2-5. Describe the storage area location(s) for these materials.
3.0 HAZARDOUS WASTES
3-1. Are hazardous wastes generated? If so, continue with the next question.
If not, skip this section and go to section 4.0.
YES
3-2. Are any of the following wastes generated, handled, or disposed of
(where applicable) on the property?
[ ] Hazardous wastes [X] Industrial Wastewater
[X] Waste oils [ ] PCBs
[X] Air emissions [ ] Sludges
[ ] Other (please specify)
3-3. Identify and describe those wastes generated, handled or disposed of
(disposition). Specify any wastes known to be regulated under the
Resource Conservation and Recovery Act (RCRA) as "listed characteristic
or statutory" wastes. Include total amounts generated monthly. Please
include name, location, and permit number (e.g. EPA ID No.) for
transporter and disposal facility, if applicable. Attach separate pages
as necessary.
EPA ID # CAL 000131155
1) WASTE OILS FROM METAL WORKING WATER SOLUBLE
2) INDUSTRIAL WASTEWATER FROM WELDING OPERATIONS
3) AIR EMISSION FROM WELDING AND PRODUCT TESTING.
3
3-4. List and quantify the materials identified in Question 3-2 of this
section.
APPROXIMATE
WASTE MONTHLY WASTE
GENERATED SOURCE QUANTITY CHARACTERIZATION DISPOSITION
--------- ------ ----------- ---------------- -----------
INDUSTRIAL WELDING 60,000 BAY AREA COULD BE CONDITIONALLY
WASTEWATER GAL PER MO WASTEWATER BEING AUTHORIZED FOR NPORS
ANALYZED
WASTE OILS MACHINES 55 GAL HAZ WASTE LIQUID STORE FOR HAZ WASTE
WATER SOLUBLE METAL WORK PER MO NON-FLAM RCRA PICK-UP AND DISPOSAL
3-5. Are pollution controls or monitoring employed in the process to prevent or
minimize the release of wastes into the environment? If so, please
describe.
NO
4.0 USTS/ASTS
4-1. Are underground storage tanks (USTs), aboveground storage tanks (ASTs),
or associated pipelines present on site (lease renewals) or required for
planned operations (new tenants)? If not, continue with section 5.0. If
yes, please describe capacity, contents, age, design and construction of
USTs or ASTs.
YES
ONE AST 300 GALLON WITH SECONDARY CONTAINMENT, ONE YEAR OLD
4-2. Is the UST/AST registered and permitted with the appropriate regulatory
agencies? Please provide a copy of the required permits.
NOT PROCURED - TO BE DETERMINED
4-3. Indicate if any of the following leak prevention measures have been
provided for the USTs/ASTs and their associated piping. Additionally,
please indicate the number of tanks that are provided with the indicated
measure. Please provide copies of written test results and monitoring
documentation.
NOT YET DESIGNED OR PROCURED
____ Integrity testing ____ Inventory reconciliation
____ Leak detection system ____ Overfill spill protection
____ Secondary containment _________________ Other (please describe)
____ Cathodic protection
4-4. If this Questionnaire is being completed for a lease renewal, and if any
of the USTs/ASTs have leaked, please state the substance released, the
media(s) impacted (e.g., soil, water, asphalt, etc.), the actions taken,
and all remedial responses to the incident.
N/A
4
4-5. If this Questionnaire is being completed for a lease renewal, have
USTs/AST's been removed from the property? If so, please provide any
official closure letters or reports and supporting documentation (e.g.,
analytical test results, remediation report results, etc.)
N/A
4-6. For Lease renewals, are there any above or below ground pipelines on site
used to transfer chemicals or wastes? For new tenants, are installations
of this type required for the planned operations? If so, please describe.
To be determined.
4-7. If present or planned, have the chemical transfer pipelines been inspected
or tested for leaks? If so, please indicate the results and provide a copy
of the inspection or test results.
Not present - not planned.
5.0 ASBESTOS CONTAINING BUILDING MATERIALS
5-1. Please be advised that this property participates in an Asbestos
Operations and Maintenance Program, and that an asbestos survey may have
been performed at the Property. If provided, please review the information
that identifies the locations of known asbestos containing material or
presumed asbestos containing material. All personnel and appropriate
subcontractors should be notified of the presence of these materials, and
informed not to disturb these materials. Any activity that involves the
disturbance or removal of these materials must be done by an
appropriately trained individual/contractor.
6.0 REGULATORY
6-1. For lease Renewals, are there any past, current, or pending regulatory
actions by federal, state, or local environmental agencies alleging
noncompliance with regulations? If so, please describe.
Unknown
6-2. For lease renewals, are there any past, current, or pending lawsuits or
administrative proceedings for alleged environmental damages involving the
property, you, or any owner or tenant of the property? If so, please
describe.
Yes - previous tenants/current owner have remediation in process for
trichloroethylene. Should be complete in 4 months.
6-3. Does the operation have or require a National Pollutant Discharge
Elimination System (NPDES) or equivalent permit? If so, please provide a
copy of this permit.
No
6-4. For Lease renewals, have there been any complaints from the surrounding
community regarding facility operations? If so, please describe. Have
there been any worker complaints or regulatory investigations regarding
hazardous material exposure at the facility? If so, please describe status
and any corrective actions taken.
Unknown
6-5. Has a Hazardous Materials Business Plan been developed for the site? If
so, please provide a copy.
No
5
CERTIFICATION
I am familiar with the real property described in this questionnaire. By signing
below, I represent and warrant that the answers to the above questions are
complete and accurate to the best of my knowledge. I also understand that the
Owner will rely on the completeness and accuracy of my answers in assessing any
environmental liability risks associated with the property.
Signature: /s/ J XXXXX
-----------------------
Name: J Xxxxx
-----------------------
Title: CFO
-----------------------
Date: 10-9-00
-----------------------
Telephone: 000-000-0000
-----------------------
6
ATTACHMENT "A"
TENANT MOVE-IN AND LEASE RENEWAL ENVIRONMENTAL QUESTIONNAIRE
FOR
COMMERCIAL AND INDUSTRIAL PROPERTIES
Property Name: Airport Business Park
Property Address: 00000 Xxxxx Xxxxxx, Xxx Xxxx, XX
Addendum to the Lease Dated September 25, 2000
CAPSTONE TURBINE CORPORATION
A Delaware corporation
("Tenant")
and
AMB Property, L.P.
("Landlord")
Ref: EXHIBIT "D", Xxxxxxx 0-0 & 0-0
XXXXXXXX/XXXXXXXXX XXXXXXXXX
================================================================================================================
MATERIAL SUBSTANCE PHYSICAL CONTAINER
CATEGORY NAME STATE SIZE QTY USE
----------------------------------------------------------------------------------------------------------------
Oils Compressor Oil liquid 1 gallon 2 lubricant for equipment
Hydraulic xxxx oil liquid 1 gallon 2 hydraulic fluid - equip
LPS Tapmatic cutting fluid liquid 16 oz 4 metalworking lubricant
LPS LST Penetrant oil liquid 11 oz 2 penetrating oil
Rapid Tap cutting oil liquid 4 oz 4 metal cutting oil
Saf-T-Eze anti-seize liquid 8 oz 4 thread anti-seize
White multipurpose grease liquid 14 oz 4 lubricant
Xxxxx Graph multipurpose liquid 14 oz 4 lubricant
Gases Air - compressed gas "A" cylinder 2 calibration
Mixture: CO in air gas "A" cylinder 1 calibration
Mixture: CO2 in air gas "A" cylinder 1 calibration
Mixture: NO in air gas "A" cylinder calibration
Mixture: propane in air/
non-flammable gas "A" cylinder 1 calibration
Carbon Dioxide gas "A" cylinder 2 calibration
Nitrogen gas "A" cylinder 2 calibration
Methane gas "A" cylinder 1 calibration
Acetylene gas "A" cylinder 1 calibration
Argon gas 400 ltr 1 calibration/welding
Hydrogen gas 400 ltr 1 welding
Hydrogen/Helium mix gas "A" cylinder 1 calibration
Propane gas 498 gallons 1 fuel - product testing
Oxidizers Oxygen gas "A" cylinder 2 calibration
Organics &
Inorganics Isopropyl Alcohol liquid 1 gallon 4 cleaning-hand wipe
Acetone liquid 1 gallon 4 cleaning-hand wipe
Methyl Ethyl Keytone liquid 1 gallon 1 thinning
Fuels Diesel #2 liquid 300 gallons 1 fuel - product testing
Gasoline liquid 5 gallons 2 fuel - product testing
Kerosene liquid 5 gallons 4 fuel - product testing
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