STANDARD INDUSTRIAL/COMMERCIAL SINGLE-TENANT LEASE — NET
Exhibit 10.37
STANDARD INDUSTRIAL/COMMERCIAL SINGLE-TENANT LEASE — NET
1. Basic Provisions (“Basic Provisions”)
1.1 Parties: This Lease (“Lease”), dated for reference purposes only January 16, 2008, is
made by and between DS-VARIEL AVENUE, LLC, a California limited liability company (“Lessor”), and
OPTICAL COMMUNICATION PRODUCTS, INC., a Delaware corporation (“Lessee”) (collectively the
“Parties” and each, individually a “Party”).
1.2 Premises: That certain real property, including all improvements thereon (including, but
not limited to that certain approximately 148,671 square foot industrial building (the “Building”)
and all parking areas located thereon), commonly known as 0000 Xxxxxx Xxxxxx located in the City
of Los Angeles, State of California, as more particularly described on Exhibit “A”,
attached hereto, (the “Premises”). (See also Section 2)
1.3 Term: Subject to Section 3.2. eighteen (18) months (the “Term”) commencing on
the Closing Date (the “Commencement Date”) and
ending on the day that is eighteen (18) months
after the Closing Date. (“Expiration Date”). (See also Section 3)
1.4 Base Rent: $100,000.00 per month (“Base Rent”), payable on the first (1st) day of each
month commencing on the Commencement Date and continuing on the first (1st) day of each
month thereafter through the Term of the Lease (See also Section 4)
1.5 Agreed Use: General office use and manufacturing and warehousing of products related to
Lessee’s business and any other reasonably incidental use permitted by law. (See also Section
6)
1.6 Insuring Party. Lessor is the “Insuring Party” unless otherwise stated herein. (See also
Section 8)
1.7 Real Estate Brokers: (See also Section 15)
(a) Representation: The following real estate brokers (collectively, the “Brokers”) and
brokerage relationships exist in this transaction (check applicable boxes):
brokerage relationships exist in this transaction (check applicable boxes):
(i) Lessor’s Broker: Xxxxx Xxxx of Cresa Partners,
representing Lessor exclusively.
(ii) Lessees’ Broker: Xxxxx Xxxxxxxxxxxx and Xxxxx Xxxxxxxxxx of Cresa
Partners,
representing Lessee exclusively.
(b) Payment of Broker’s Fees
(i) Upon execution and delivery of this Lease by both Parties, Lessor shall
pay to
the Lessor’s Broker the fee, if any) agreed to in their separate written agreement.
(ii) Upon execution and delivery of this Lease by both Parties, Lessee shall pay to
die Lessee’s Broker the fee, if any) agreed to in their separate written agreement.
1.8 Lessee’s Address: At the Premises, Attention: Xxxxx Xxxxxx, Controller. A copy of all
notices shall be sent to: Oplink Communications, Inc., 00000 Xxxxxxx Xxxxxxx, Xxxxxxx, XX 00000,
Attention: Xxxxxx X. Xxxxxx, General Counsel and Vice President, Business Development.
1.9 Lessor’s Address: 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxxxxxx Xxxxx, XX 00000, Attention
Xxxxx Xxxxxxxxxxx.
1.10 Closing Date: The date on which the transactions contemplated under the Purchase and
Sale Agreement shall close.
1.11 Purchase and Sale Agreement: That certain Agreement of Purchase and Sale and Joint
Escrow Instructions dated on or about the date hereof between Lessee, as seller, and DS Ventures,
LLC, predecessor-in-interest to Lessor, as buyer (as amended from time to time, the “Purchase and
Sale Agreement”).
1.12 Exhibits. Exhibits “A” and “B” attached hereto constitute a part of this Lease.
2. Premises.
2.1 Letting. Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, the
Premises, for the term, at the rental, and upon all of the terms, covenants and conditions set
forth in this Lease.
2.2 Condition. Lessee acknowledges that Lessee has been and is currently in possession of the
Premises and, subject to Lessor’s obligations under this Lease, hereby accepts the Premises in its
existing, “as is” condition,
2.3 Acknowledgements. Lessee acknowledges that: (a) it is and has been in possession of the
Premises, (b) Lessee has made such investigation as it deems necessary with respect to the
condition of the Premises and their suitability for Lessee’s intended use, and (c) neither Lessor,
nor any of its agents, have made any oral or written representations or warranties with respect to
said matters other than as set forth in this Lease. Each of the Parties acknowledges and agrees
that nothing in the Lease (including, but not limited to, in
Section 4.2) is intended to or shall
expand or limit (i) the rights and potential liabilities of Lessee as the “Seller” under the
Purchase and Sale Agreement or (ii) the rights and potential liabilities of Lessor as the “Buyer”
under the Purchase and Sale Agreement. For the avoidance of doubt, the Parties further acknowledge
and agree that, pursuant to Section 23 of the Purchase and Sale Agreement, Lessor, as the “Buyer”
thereunder, is purchasing the Property (as defined in the Purchase and Sale Agreement) in its
“As-Is” condition as of the Closing Date, and that nothing in the Lease (including, but not limited
to in Section 6.3, Section 7.1 or Section 7.4) is intended to or shall in any way alter the “As-Is”
nature on which Lessee is purchasing the Property or impose upon the Lessee any obligation to make
any modifications to any portion of the Property to correct or improve (for any reason) any
condition present in, on, under or about the Property or the condition or any portion of the
Property as of the Closing Date.
2.4 Recapture.
(a) Lessor
shall have the right, exercisable by delivery of not less man 60 days written
notice to Lessee (the “Recapture Notice”), to recapture all or any portion of the portion of the
Premises described on Exhibit “D” attached hereto (the “Non-Office Premises”) effective as
of the date (the “Recapture Date”) set forth therefor in the Recapture Notice, which Recapture
Date shall not occur before March 1, 2008.
(b) If Lessor elects to so recapture the Non-Office Premises, all references to the Premises
herein shall be deemed amended so as to not refer to any portion of the Non-Office Premises
recaptured by Lessor. Lessor’s recapture of all or any portion of the Non-Office Premises shall
not affect the amount of Rent or Lessee’s other obligations to pay Base Rent to Lessor hereunder;
but Lessee’s Percentage Share (defined below) shall be adjusted to an amount equal to a fraction
having as its numerator, the number of square feet of Rentable Area contained in the Premises
following such recapture, and having as its denominator, the number of square feet of rentable
area contained in the Building. Fifty percent (50%) of any Base Rent received by Lessor (or that
would have been received but for any abatement of base rent or other rent concessions granted in
connection with the applicable lease) from re-letting the Non-Office Premises to a third-party,
less the amortized portion of Lessor’s reasonable out of pocket costs and expenses plus the cost
of any any abatement of base rent or other rent concessions that are incurred in connection with
such re-letting and that are allocable to the Term of this Lease, shall be delivered to Lessee,
but only for the period of time during the Term hereof.
3. Term.
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3.1 Term; Condition Precedent. The Commencement Date, Expiration Date and Original Term of
this Lease are as specified in Section 1.3. Notwithstanding anything to the contrary in
this Lease, the closing of all of the transactions contemplated under the Purchase and Sale
Agreement shall be a condition precedent to the effectiveness of this Lease, and any and all time
periods will be adjusted accordingly (based on the date that the Closing Date actually occurs).
3.2 Early Termination. Lessee shall have the right, exercisable by delivery of not less than
90 days written notice to Lessor (the “Termination Notice”), to terminate this Lease effective as
of the date (the “Termination Date”) set forth therefor in the Termination Notice, which
Termination Date shall not occur before the six (6) month anniversary of the Commencement Date. In
the event that Lessee shall elect to terminate this Lease under this Section 2.3,
effective as of the Termination Date, neither Lessor not Lessee shall have any further rights or
obligations under this Lease (other than any rights or obligations that by their express terms
survive the expiration or earlier termination of this Lease).
4. Rent.
4.1 Rent Defined. All monetary obligations of Lessee to Lessor under the terms of this Lease
(except for the Security Deposit) are deemed to be rent (“Rent”).
4.2 Operating Expenses. Lessee shall pay to Lessor during the term hereof, in addition to the
Base Rent, Lessee’s Percentage Share (defined below) of all Operating Expenses, as hereinafter
defined attributable to each calendar year during which any portion of the term of this Lease
occurs, in accordance with the following provisions:
(a) “Operating Expenses” means, subject to Section 4.2(b), below, and taking into
consideration the limited obligations of Lessor under this Lease, all costs incurred by Lessor
relating to the ownership and operation of the Property, including, but not limited to, the
following: (i) the cost of any utilities not separately metered to the Premises, (ii) trash
disposal, pest control services, and the costs of any environmental
inspections, (iii) Real
Property Taxes (as defined in Section 10), (iv) the cost of the premiums for the insurance
required under this Lease to be maintained by Lessor hereunder with respect to the Property, (v)
any costs incurred by Lessor under Section 7.2 hereinbelow, and (vi) any and all costs and/or
expenses including in Operating Expenses in any provision contained in this Lease.
(b) Notwithstanding anything to the contrary in this Lease, Operating Expenses shall not
include: (i) amounts paid or payable for insurance deductibles or for premiums for any insurance
that is in addition to the insurance Lessor is required to carry under this Lease; (ii) except for
Permitted Capital Costs (defined below), any and all amounts paid or payable for items which
constitute a capital item, addition, repair or improvement under generally accepted accounting
principles (“Capital Items”); (iii) any and all costs and expenses for leasing space to
new tenants and/or in connection with any financing or sale of the Premises; (iv) any
and all costs and expenses borne directly by Lessee under this Lease; (v) any and all costs for
ground rent, if any; (vi) any and all costs for interest or amortization; (vii) any costs and
expenses for any items excluded from the definition of Real Property Taxes; (viii) any and all
costs and/or expenses incurred by Lessor for which Lessor is entitled to reimbursement; (ix) any
and all costs and expenses relating to bad debts or similar losses or for penalties unless
incurred as a result of any act, omission or breach of this Lease of Lessee; (x) any and all costs
and/or expenses associated with the operation of the business of the partnership or entity which
constitutes the Lessor (or of which Lessor is a direct or indirect subsidiary, parent or
affiliate), including, without limitation, for general corporate overhead and general and
administrative expenses; (xi) any and all costs and expenses relating to administration or
management of the Premises and any and all wages, benefits or related expenses of any employee who
does not devote substantially all of his or her employed time to the operation or maintenance of
the Premises unless such wages, benefits and expenses are reasonably and equitably prorated; (xii)
any management or administrative fees; (xiii) any and all payments paid to Lessor (or any member,
manager, partner or other constituents thereof) or to subsidiaries or affiliates thereof, for
goods or services (including utility services) to the extent (and only to the extent) the same
exceed the cost of such goods or services if rendered on a competitive basis by unaffiliated third
parties; (xiv) any and all cost and expenses for rentals and other related expenses incurred in
leasing any Capital Items; (xv) any and all costs and/or expenses incurred as a result of, and to
the extent caused by, the active negligence or willful misconduct of Lessor or any of its
affiliates; (xvi) any and all costs and expenses relating to the
presence and/or
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investigation, remediation, removal or abatement of Hazardous Substances in, on under or about the
Premises; (xvii) any and all costs and/or expenses relating to any charitable or political
contributions, for advertising, for fees, dues, contributions or similar expenses for industry
associations or similar organizations, or for entertainment and travel for Lessor, its affiliates
or any management agent of Lessor and their respective employees, agents, partners and affiliates;
(xviii) any and all cost and expenses for reserves of any kind; (xix) any and all costs and/or
expenses related to any program or plan for waste, traffic, hazardous waste, environmental or
handicapped access management, mitigation, enhancement; (xx) any and all costs and/or expenses
arising from claims, disputes or potential disputes in connection with potential or actual claims,
litigation or arbitrations pertaining to the business of Lessor or the ownership or title to the
Premises or any portion thereof or to disputes between Lessor and its partners and/or affiliates,
between Lessor and its employees, between Lessor and any other owner or interest holder in the
Premises, between Lessor or any adjacent landowner, between constituent partners of Lessor, and/or
between Lessor and Premises management or their respective employees; (xxi) any and all any costs
and expenses of any utility services for which Lessee directly contracts with the local public
service or utility company or other provider (including, but not limited to, pursuant to Section
11, below); and (xxii) any and all costs and/or expenses excluded from Operating Expenses in any
provision contained in this Lease. “Permitted Capital Costs” means costs incurred by Landlord for
Capital Items (in an aggregate amount not to exceed $100,000.00) in connection with its performance
of its obligations under Sections 6.3 or 7.2, below, provided, however, that the cost of any such
items that may be included in Operating Expenses shall be amortized over the useful life of such
items (as determined under generally accepted accounting principles consistently applied) using an
annual rate of interest equal to the Prime Rate (defined below) plus two percent (2%).
(c) Operating Expenses shall be payable by Lessee within 30 days after a reasonably detailed
statement of actual Operating Expenses for any calendar month is presented to Lessee. At Lessor’s
option, however, an amount may be estimated by Lessor from time to time, of annual Operating
Expenses for any calendar year and the same shall be payable monthly, on the same day as the Base
Rent is due hereunder. Lessor shall deliver to Lessee within 90 days after the expiration of each
calendar year, a reasonably detailed statement showing the actual Operating Expenses incurred
during the preceding calendar year on a line item by line item basis. If Lessee’s payments under
this Section 4.2(c) during the preceding year exceed the amount of Operating Expenses as
indicated on such statement, Lessor shall credit the amount of such over-payment against any
amount for Operating Expenses next becoming due (or if the Term of this Lease shall have expired
or terminated, shall promptly pay to Lessee in cash the amount of such over-payment). If Lessee’s
payments under this Section 4.2(c) during the preceding year were less than Operating
Expenses as indicated on such statement, Lessee shall pay to Lessor the amount of the deficiency
within 30 days after delivery by Lessor to Lessee of the statement.
(d) If Lessee disputes the year-end statement provided under Section 4.2(c), above,
provided a Breach (defined below) does not then exist, Lessee may, by written notice to Lessor
within twelve (12) months after receipt of Lessor’s statement for a particular calendar year,
cause an audit of the Operating Expenses for such calendar year to be conducted by an auditor
mutually selected by Tenant and Landlord at Lessee’s sole expense (except as provided below), to
verify if such statement was accurate. Lessee agrees to keep the results of any audit hereunder
confidential. Such audit shall be final and binding on Landlord and Tenant and (i) if such audit
reveals an overpayment of Operating Expenses for the calendar year covered by such statement,
Lessor shall credit the next monthly rent payment of Lessee, or if the Term has expired, and, in
any event, with respect to any amount of the credit due Lessee in excess of the next monthly rent
payment, Lessor shall refund the overpayment or such excess, as applicable, within thirty (30)
days after determination of the amount due Lessee and (ii) if such audit reveals an underpayment
of Operating Expenses for the calendar year covered by the most recent statement, then Lessee
shall pay the same with its next monthly Base Rent payment, or if the Term has expired, within
thirty (30) days after receipt of the audit results. Lessee agrees to pay the cost of any audit
hereunder by Lessee; provided that if the audit reveals, with respect to any calendar year, that
Lessor has billed Lessee for Operating Expenses more than four percent (4%) in excess of the
Operating Expenses that Lessee should pay for such calendar year pursuant to the terms of the
Lease, then Lessor shall pay the cost of such audit.
(e) “Lessee’s Percentage Share” means, subject to Section 2.4, above,
100%.
4.3 Payment.
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(a) Lessee shall cause payment of Rent to be received by Lessor in lawful money of the United
States, without offset or deduction (except as specifically permitted by this Lease or applicable
law), on or before the day on which it is due. Rent for any period during the Term hereof which is
for less than one (1) full calendar month shall be prorated based upon the actual number of days of
said month, and Rent payable under Section 4.2, above for any period during the Term hereof
which is for less than one (1) full calendar year shall be prorated based upon the actual number of
days of said year. Payment of Rent shall be made to Lessor at its address stated herein or to such
other persons or place as Lessor may from time to time designate in writing. Acceptance of a
payment which is less than the amount then due shall not be a waiver of Lessor’s rights to the
balance of such Rent, regardless of Lessor’s endorsement of any check so stating.
(b) [Intentionally Omitted]
5. [Intentionally Omitted]
6. Use.
6.1 Use. Lessee shall use and occupy the Premises only for the Agreed Use, or any other legal
uses related thereto, and for no other purpose. Lessee shall not use or permit the use of the
Premises in a manner that is unlawful, or creates damage, waste or a nuisance.
6.2 Hazardous Substances.
(a) Reportable Uses Require Consent. The term “Hazardous Substance” as used in this Lease
means any material or substance which is defined or becomes defined as a “hazardous substance”,
“hazardous waste,” “infectious waste,” “chemical mixture or substance,” or “air pollutant” under
Environmental Laws (defined below) or otherwise is a material or substance whose presence, use,
manufacture, disposal, transportation or release, either by itself or in combination with other
materials expected to be on the Premises, is hazardous to human health, safety or to the
environment due to its radioactivity, ignitability, corrosiveness, reactivity, explosiveness,
toxicity, carcinogenicity, infectiousness or other harmful properties or effects. The term
“Environmental Laws” means all now and hereafter existing Applicable Requirements regulating,
relating to, or imposing liability or standards of conduct concerning public health and safety or
the environment. Hazardous Substances shall include, but not be limited to, hydrocarbons,
petroleum, gasoline, and/or crude oil or any products, by-products or fractions thereof. Except as
described in Exhibit “B”, attached hereto (the “Existing HazMat Activities”),Lessee shall
not engage in or permit any activity in or on the Premises which constitutes a Reportable Use
(defined below) of Hazardous Substances without the prior written consent of Lessor (which consent
shall not be unreasonably withheld, conditioned or delayed) and timely compliance (at Lessee’s
expense) with all Environmental Laws. “Reportable Use” means (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/or (iii) the presence at the Premises of a Hazardous Substance with respect to
which any Environmental Laws requires that a notice be given to persons entering or occupying the
Premises or neighboring properties. Notwithstanding the foregoing, Lessee may use any ordinary and
customary materials reasonably required to be used in the normal course of the Agreed Use, so long
as such use is in compliance with all Environmental Laws and is not a Reportable Use and does not
expose the Premises or neighboring property to any meaningful risk of contamination. In addition,
Lessor may condition its consent to any Reportable Use upon receiving such additional assurances
as Lessor reasonably deems necessary to protect itself, the public, the Premises and/or the
environment against damage, contamination, injury and/or liability, including, but not limited to,
the installation (and removal on or before Lease expiration or termination) of protective
modifications (such as concrete encasements)
(b) Duty to Inform Lessor. Lessee shall submit to Lessor, within ten (10) business days
following its receipt of the same (or if prepared by Lessee, within ten (10) business days
following its preparation of the same), a full and complete copy of any written communication,
demand, complaint, pleading, threat, notice or inquiry received or communicated by Lessee from or
delivered to any governmental agency, any adjacent landowner, or any other third party relating in
any way to (a) the actual or alleged presence and/or release of any Hazardous Substances in, on,
under, about or about the Premises or (b) any actual or alleged violation of any Environmental Law
by Lessee relating to, or occurring in, under, on or about the Premises.
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(c) Lessee Remediation. Lessee shall not cause or permit any Hazardous Substance
to be
spilled or released in, on, under, or about the Premises (including through the plumbing or
sanitary sewer system) in any manner that is not permitted by the Applicable Requirements, and
shall promptly, at Lessee’s expense, take all investigatory and/or remedial action reasonably
ordered or required, for the cleanup of any contamination of, and for the maintenance, security
and/or monitoring of the Premises or neighboring properties (and to the extent required to allow
Lessor to make full economic use of the Premises under its then existing zoning), that was caused
by Lessee, or pertaining to or involving any Hazardous Substance brought onto the Premises during
the term of this Lease, by or for Lessee.
(d) Lessee Indemnification. Lessee shall indemnify, defend and hold the Lessor Indemnified
Parties (defined below), harmless from and against any and all loss of rents and/or damages,
liabilities, judgments, claims, expenses, penalties, and attorneys’ and consultants’ fees arising
out of or involving any Hazardous Substance brought onto the Premises during the Term by or for
Lessee. Lessee’s obligations shall include, but not be limited to, the effects of any contamination
or injury to person, property or the environment created or suffered by Lessee, and the cost of
investigation, removal, remediation, restoration and/or abatement, and shall survive the expiration
or termination of this Lease.
(e) Lessor Indemnification. Lessor shall indemnify, defend, reimburse and hold the Lessee
Indemnified Parties (defined below), harmless from and against any and all environmental damages,
including the cost of remediation, which existed as a result of Hazardous Substances becoming
present in, on, under or about the Premises at any time after the Commencement date as a result of
any act or negligent omission of Lessor, its agents or employees. Lessor’s obligations, as and
when required by the Applicable Requirements, shall include, but not be limited to, the cost of
investigation, removal, remediation, restoration and/or abatement, and shall survive the
expiration or termination of this Lease.
(f) Investigation and Remediation. Lessor shall retain the responsibility and pay for any
investigations or remediation measures required by governmental entities having jurisdiction with
respect to the existence of Hazardous Substances in, on, under or about the Premises prior to the
Commencement Date. Lessee shall reasonably cooperate in any such activities at the request of
Lessor, including allowing Lessor and Lessor’s agents to have reasonable access to the Premises at
reasonable times in order to carry out Lessor’s investigative and remedial responsibilities.
6.3 Compliance with Applicable Requirements.
(a) Lessor’s Obligations. Lessor shall comply with all laws, covenants or restrictions of
record, building codes, regulations and ordinances (“Applicable Requirements”) relating to the Base
Building (defined below), if and to the extent (i) each such compliance is not required as the
result of the misconduct, breach, fault or negligence of Lessee and/or of any Lessee Party, and
(ii) Section, 6.3(b), below, does not expressly require Lessee to comply with such Applicable
Requirements relating to the Base Building. “Base Building” means (a) all of the structural
portions of the Premises, including, without limitation, the foundation, floor/ceiling slabs, roof
(including the roof membrane), curtain wall, exterior glass and mullions, columns, beams, shafts,
stairs, and parking areas (the “Building Structure”) and (b) the primary electrical, plumbing, fire
sprinkler, lighting, heating, ventilating and air conditioning systems (“HVAC”), loading doors, if
any, and all other such elements in the Premises (the “Building Systems”). Lessor shall be
permitted to include in Operating Expenses (defined below) any costs or expenses incurred by Lessor
under this Section 6.3 (a) to the extent consistent with the terms of Section
4.2. above.
(b) Lessee’s Obligations. Lessee shall not do anything in or about the Premises which will in
any way conflict with any Applicable Requirements. Subject to Lessor’s obligations under this
Lease, Lessee shall comply with all Applicable Requirements (i) applicable to the Premises and
that relate to (A) Lessee’s specific use of the Premises, and/or (B) any Alterations or Utility
Installations (as defined in Section 7.3(a)) made or to be made by Lessee; provided,
however, that Lessee shall have no obligations under this Section 6.3(b) to cause any
portion of the Base Building to comply with any Applicable Requirements unless such compliance
obligations are triggered by Lessee’s specific use of the Premises or any Alterations or Utility
Installations made or to be made by Lessee after the date hereof.
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6.4 Inspection; Compliance. Lessor and its consultants and mortgage lenders shall have the
right to
enter into Premises at any time, in the case of an emergency, and otherwise at reasonable times
upon not less that 2 business days notice, for the purpose of inspecting the condition of the
Premises and for verifying compliance by Lessee with this Lease; provided, however, that Lessee
shall have the right to cause a representative of Lessee to accompany Lessor or its consultants
during any such entry into the Premises.
7. Maintenance; Repairs, Utility Installations; Trade Fixtures and Alterations.
7.1
Lessee’s Obligations. Subject to the provisions of
Section 2.2 (Condition), 2.3
(Compliance), 6.3 (Compliance with Applicable Requirements),
7.2 (Lessor’s Obligations), and 9
(Damage or Destruction; Eminent Domain), Lessee shall, at Lessee’s sole expense, keep the Premises
(including the exterior of the Premises), Utility Installations, and Alterations in good order,
condition and repair. In addition, Lessee shall, during the Term and at its sole cost, purchase and
keep in full force and effect (a) a heating, ventilation and air conditioning maintenance contract
providing for regular and preventative maintenance and servicing of
the existing fire protection
systems HVAC system(s) in the Premises with a contractor specializing and experienced in the
maintenance of HVAC systems in the Premises and (b) a service contract providing for regular
servicing, inspection and maintenance of existing fire protection systems in the Premises.
Notwithstanding anything to the contrary in this Lease, Lessee shall have no obligation under this
Section 7.1 to incur any costs for any Capital Items or to paint or repaint any portion of the
Building.
7.2
Lessor’s Obligations. Subject to the provisions of
Sections 2.2 (Condition), 7.1
(Lessee’s Obligations) and 9 (Damage or Destruction; Eminent Domain), Lessor shall operate and
maintain in good order, condition and repair the Base Building. Lessor shall be permitted to
include in Operating Expenses (defined below) any costs or expenses incurred by Lessor under this
Section 7.2 to the extent consistent with the terms of Section 4.2. above.
7.3
Utility Installations; Trade Fixtures; Alterations.
(a) Definitions.
(i) “Utility Installations” means all floor and window coverings, air lines,
power
panels, electrical distribution, security and fire protection systems, communication systems,
lighting fixtures, HVAC equipment, plumbing, and fencing in or on the Premises.
(ii) “Trade Fixtures” means Lessee’s machinery and equipment that can be
removed without doing material damage to the Premises.
(iii) “Alterations” means any modification of the improvements, other than Utility
Installations or Trade Fixtures, whether by addition or deletion.
(iv) “Lessee Owned Alterations and/or Utility Installations” are defined as
Alterations and/or Utility Installations made by Lessee that are not yet owned by Lessor pursuant
to Section 7.4(a).
(v) “Lessee Retained Utility Installations” means the Utility Installations
described on Exhibit “C”, attached hereto.
(b) Consent Required. Lessee shall not make any Alterations or Utility Installations to the
Premises without Lessor’s prior written consent. Lessee may, however, make non-structural Utility
Installations and Alterations to the interior of the Premises without such consent but upon prior
notice to Lessor, as long as they are not visible from the outside, do not involve puncturing,
relocating or removing the roof or any existing walls and do not cost more than $50,000 in any one
instance or $150,000 in the aggregate during the Term.
(c) Consent. Any Alterations or Utility Installations that Lessee shall desire to make and
which require the consent of the Lessor shall be presented to Lessor in written form with
reasonably detailed plans. Consent shall be deemed conditioned upon Lessee’s: (i)
acquiring all applicable governmental permits,
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(ii) furnishing Lessor with copies of both the permits and the plans and specifications prior to
commencement of the work, and (iii) compliance with all conditions of said permits and other
Applicable Requirements in a prompt and expeditious manner. Any Alterations or Utility
Installations shall be performed in a workmanlike manner with good and sufficient materials by
licensed contractors. Lessee shall promptly upon completion furnish Lessor with as-built plans and
specifications (if any).
(d) No Liens. Lessee shall pay, when due, all claims for labor or materials
furnished or
alleged to have been furnished to or for Lessee at or for use on the Premises, which claims are or
may be secured by any mechanic’s or materialmen’s lien against the Premises or any interest
therein. Lessee shall give Lessor not less than ten (10) days’ notice prior to the commencement of
any work in, on or about the Premises, and Lessor shall have the right to post notices of
non-responsibility. Lessee shall not allow any mechanic’s or materialmen’s liens to be filed
against the Premises, and if any such mechanic’s or materialmen’s lien is filed against the
Premises, Lessee shall satisfy or otherwise discharge or bond over all liens within fifteen (15)
business days after Lessor notifies Lessee in writing that any such lien has been filed. If Lessee
fails to pay and remove or bond over such lien within such fifteen (15) business day period, Lessor,
at its election, may pay and satisfy the same and in such event the sums so paid by Lessor shall be
deemed to be Rent due and payable by Lessee within thirty (30) days following Lessor’s written
demand together with reasonable supporting documentation.
7.4 Ownership; Removal; Surrender.
(a) All Alterations and Utility Installations (other than Lessee Retained Utility
Installations) made by Lessee shall be the property of Lessee, but considered a part of the
Premises. All Alterations and Utility Installations shall, at die expiration or termination of
this Lease, become the property of Lessor and be surrendered by Lessee with the Premises. On or
before the date on which the Term of this Lease shall expire or shall be earlier terminated,
Lessee shall remove, at its own expense, all office furniture, business and Trade Fixtures, Lessee
Retained Utility Installations, equipment, furniture system and other personal property from time
to time situated in the Premises (collectively, “Lessee’s Personal Property”). In the event that
Lessee shall fail to remove any such items after the expiration or earlier termination of this
Lease, and if such failure continues for five (5) business days after Lessor’s delivery of notice
thereof to Lessee, Lessee shall be deemed to have abandoned the same, in which case Lessor may, at
Lessee’s expense, remove such items and store the same at Lessee’s expense, or appropriate the
same for itself, and/or sell or otherwise dispose of the same in its discretion, with no liability
to Lessee
(b) By delivery to Lessee of written notice from Lessor at the time it approves any Lessee
Owned Alterations or Utility Installations, Lessor may require that such Lessee Owned Alterations
or Utility Installations be removed by the expiration or termination of this Lease. In addition,
Lessor may require the removal at any time of all or any part of any Lessee Owned Alterations or
Utility Installations made without the required consent of Lessor. Notwithstanding anything to the
contrary in this Lease, Lessee shall not be obligated to remove or restore upon the expiration or
termination of the Term of this Lease any Alterations or Utility Installations that are present
in, on or about the Premises as of the Closing Date.
(c) Lessee
shall surrender the Premises by the Expiration Date or any earlier termination
date, with all of the improvements, parts and surfaces thereof broom clean and free of debris, and
in good operating order, condition and state of repair, ordinary wear and tear excepted; provided,
however, that Lessee shall have no obligation under this Section 7.4(c) to cause the Premises (or
any portion thereof or any improvements located therein) to be in any better condition than the
same were as of the Closing Date.
8. Insurance; Indemnity.
8.1 [Intentionally Omitted]
8.2 Liability Insurance.
(a) Carried by Lessee. Lessee shall obtain and keep in force a Commercial General
Liability Policy of Insurance protecting Lessee and Lessor against claims for bodily injury,
personal injury and property damage based upon or arising out of the ownership, use, occupancy or
maintenance of the Premises and all
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areas appurtenant thereto. Such insurance shall be on an occurrence basis providing single limit
coverage in an amount not less than $2,000,000 per occurrence with an “Additional Insured-Managers
or Lessors of Premises Endorsement” and contain the “Amendment of the Pollution Exclusion
Endorsement” for damage caused by heat, smoke or fumes from a hostile fire. The Policy shall not
contain any intra-insured exclusions as between insured persons or organizations, but shall
include coverage for liability assumed under this Lease as an “insured contract” for the
performance of Lessee’s indemnity obligations under this Lease. The limits of said insurance shall
not, however, limit the liability of Lessee nor relieve Lessee of any obligation hereunder. All
insurance carried by Lessee shall be primary to and not contributory with any similar insurance
carried by Lessor, whose insurance shall be considered excess insurance only.
(b) Carried by Lessor. Lessor shall maintain liability insurance as described in
Section
8.2(a), in addition to, and not in lieu of, the insurance required to be maintained by
Lessee. Lessee shall not be named as an additional insured therein.
8.3 Property Insurance — Building and Improvements. The Insuring Party shall obtain and keep
in force a policy or policies in the name of Lessor, with loss payable to Lessor, any ground
lessor, and to any Lender(s) insuring loss or damage to the Premises (including, in all cases,
earthquake insurance and, if (and only if) required by any Lender, flood or terrorism insurance).
The amount of such insurance shall be equal to the full replacement cost of the Premises, as the
same shall exist from time to time, or the amount required by any Lenders, but in no event more
than the commercially reasonable and available insurable value thereof. If Lessor is the Insuring
Party, however, Trade Fixtures, and all other Lessee’s Personal Property shall be insured by
Lessee under Section 8.4 rather than by Lessor. If the coverage is available and
commercially appropriate, such policy or policies shall insure against all risks of direct
physical loss or damage (including earthquake, and if (and only if) required by any Lender, flood
or terrorism), including coverage for debris removal and the enforcement of any Applicable
Requirements requiring the upgrading, demolition, reconstruction or replacement of any portion of
the Premises as the result of a covered loss. Said policy or policies shall also contain an agreed
valuation provision in lieu of any coinsurance clause, waiver of subrogation, and inflation guard
protection causing an increase in the annual property insurance coverage amount by a factor of not
less than the adjusted U.S. Department of Labor Consumer Price Index
for All Urban Consumers for
the city nearest to where the Premises are located. If such insurance coverage has a deductible
clause, the deductible amount shall be commercially reasonable, subject to Lessor’s reasonable
approval.
8.4 Lessee’s Property Insurance. Lessee shall obtain and maintain insurance coverage on all of
Lessee’s Personal Property and Trade Fixtures. Such insurance shall be full replacement cost
coverage with a deductible of not to exceed a commercially reasonable amount.
8.5 Insurance Policies. Insurance required herein shall be by companies duly licensed or
admitted to transact business in the state where the Premises are located, and maintaining during
the policy term a “General Policyholders Rating” of at least B+, V, as set forth in the most
current issue of “Best’s Insurance Guide”, or such other rating as may be required by a Lender.
Lessee shall not do or permit to be done anything which invalidates the required insurance
policies. Lessee shall, prior to the Commencement Date, deliver to Lessor certificates evidencing
the existence and amounts of the required insurance. Should any of the above described policies be
cancelled before the expiration date of such policies, the insurer shall endeavor to mail thirty
(30) days’ prior written notice of such cancellation to Lessor and to any additional insureds
under such policies. Lessee shall, at least ten (10) days prior to the expiration of such
policies, furnish Lessor with evidence of renewals or “insurance binders” evidencing renewal
thereof. If either Party shall fail to procure and maintain the insurance required to be carried
by it, and such failure shall continue for five (5) business days after notice thereof, the other
Party may, but shall not be required to, procure and maintain the same at the expense of the Party
that is required to maintain such insurance under this Lease, and if Lessor or Lessee so procures
any insurance required to be procured and maintained by the other, Lessee or Lessor, as
applicable, shall reimburse the other for the costs incurred in connection with procuring such
insurance within thirty (30) days following demand therefor together with reasonable supporting
documentation.
8.6 Waiver of Subrogation. Without affecting any other rights or remedies, Lessee and Lessor
each hereby release and relieve the other, and waive their entire right to recover damages against
the other, for loss of or damage to its property arising out of or incident to the perils required
to be insured against herein. The effect of such releases and waivers is not limited by the amount
of insurance carried or required or by any deductibles applicable hereto. The Parties agree to
have their respective property damage insurance carriers waive any right to
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subrogation
that such companies may have against Lessor or Lessee, as the case may be, so long as
the insurance is not invalidated thereby.
8.7 Indemnity.
(a) Except for Lessor’s active negligence or willful misconduct, Lessee shall indemnify,
protect, defend and hold harmless the Premises, Lessor and its partners, members, advisors,
mortgagees and ground lessors and each of their respective officers, managers, directors,
employees, contractors, agents, successors and assigns (collectively,
the “Lessor Indemnified
Parties”), from and against any and all claims, actions, suits, proceedings, losses, damages,
obligations, liabilities, penalties, fines, costs and expenses
(including but not limited to
reasonable attorneys’ fees and legal costs) (collectively,
“Claims”) arising out of, involving, or
in connection with, (i) the use and/or occupancy of the Premises by Lessee (in each instance, to
the extent covered by Lessee’s insurance policies carried pursuant to the provisions of
Section 8.2(a), above) or (ii) any negligent acts or omissions or willful misconduct of
Lessee or any of its agents or employees. If any action or proceeding is brought against any
Lessor Indemnified Parties by reason of any of the foregoing matters, Lessee shall upon notice
defend the same at Lessee’s expense by counsel reasonably satisfactory to such Lessor Indemnified
Parties and such Lessor Indemnified Parties shall cooperate with Lessee in such defense. Such
Lessor Indemnified Parties need not have first paid any such claim in order to be defended or
indemnified.
(b) Except for Lessee’s negligence or willful misconduct, Lessor shall indemnify, protect,
defend and hold harmless Lessee and its partners, members and advisors, and each of their
respective officers, managers, directors, employees, contractors, agents, successors and assigns
(collectively, the “Lessee Indemnified Parties”), from and against any and all Claims arising out
of, involving, or in connection with, (i) any acts or negligent omissions of Lessor or its agents
or employees (in each instance, to the extent covered by Lessor’s insurance policies carried
pursuant to the provisions of Section 8.2(b), above) or (ii) the active negligence or
willful misconduct of Lessor or any of its agents or employees. If any action or proceeding is
brought against any Lessee Indemnified Parties by reason of any of the foregoing matters, Lessor
shall upon notice defend the same at Lessor’s expense by counsel reasonably satisfactory to such
Lessee Indemnified Parties and such Lessee Indemnified Parties shall cooperate with Lessor in such
defense. Such Lessee Indemnified Parties need not have first paid any such claim in order to be
defended or indemnified.
8.8 Exemption of Lessor from Liability. Except for Lessor’s active negligence or willful
misconduct, Lessor shall not be liable for injury or damage to the person or goods, wares,
merchandise or other property of Lessee, Lessee’s employees, contractors, invitees, customers, or
any other person in or about the Premises, whether such damage or injury is caused by or results
from fire, steam, electricity, gas, water or rain, or from the breakage, leakage, obstruction or
other defects of pipes, fire sprinklers, wires, appliances, plumbing, HVAC or lighting fixtures,
or from any other cause, whether the said injury or damage results from conditions arising upon
the Premises or upon other portions of the Building of which the Premises are a part, or from
other sources or places.
8.9 Waiver of Consequential Damages. Notwithstanding any provision to the contrary contained
in this Lease, at no time and under no circumstances shall either Lessor or Lessee be responsible
or liable to the other for any lost profits, lost economic opportunities or any other form of
consequential or punitive damages (collectively, “Consequential Damages”) as the result of any
actual or alleged breach by either Lessor or Lessee of its obligations under this Lease; provided,
however, that notwithstanding the above, this Section 8.9 shall not limit or otherwise affect
either party’s liability with respect to claims of fraud, willful misconduct, or bad faith.
9. Damage or Destruction; Eminent Domain.
9.1 Casualty.
(a) If at any time during the Term of this Lease, the entire Premises shall be
destroyed by fire
or other casualty (a “Casualty”), this Lease shall automatically terminate. In addition, if (i) at
any time during the Term of this Lease, a Material Portion of the Premises shall be damaged or
destroyed by any Casualty, then Lessor and Lessee shall each have the right to elect to terminate
this Lease by delivery of written notice thereof to the other within ninety (90) days after the
occurrence of such Casualty or (ii) any portion of the Premises is damaged or
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destroyed in a material manner as a result of any Casualty that is not an Insured Loss (defined
below), then Lessor shall have the right to elect to terminate this Lease by delivery of written
notice thereof to Lessee within ninety (90) days after the occurrence of such Casualty. In
addition, if Lessor does not commence the repair of such damage within thirty (30) days after the
damage occurs or does not complete the repair of such damage within
one hundred eighty (180) days
after the damage occurs, then Lessee may elect to terminate this Lease upon written notice to
Lessor. In the event that this Lease is terminated as permitted in this Section 9, Lessor shall
refund to Lessee any prepaid Rent less any sum then owed to Lessor by Lessee and such termination
shall be effective upon delivery of such notice of termination (or if Tenant has not vacated the
Premises, effective on the date that is sixty (60) days after the date of its receipt of such
notice). “Material Portion” means (A) a portion of the Premises which cannot reasonably be
repaired (as reasonably determined by a qualified general contractor ) in six (6) months or less
from the date of the damage or destruction or (B) a portion of the Premises, the loss of which
materially interferes with Lessee’s use of the Premises for the conduct of its business, which
cannot reasonably be repaired (as reasonably determined by a qualified general contractor) in one
(1) month or less from the date of the damage or destruction (provided, however, that Lessor shall
have no right under this Section 9.1(a) to elect to terminate this Lease except where a Material
Portion (as defined under clause (A) above (and not only under
clause (B), above) is damaged).
(b) If
this Lease is not terminated pursuant to Section 9.1(a), above (or Section
9.1(c), below), and such Casualty is an Insured Loss (as defined below), then (i) Lessor shall,
promptly following the occurrence of the applicable Casualty repair and restore (the
“Restoration”) the damage to the Premises resulting from such Casualty and shall proceed with
reasonable diligence to restore the Premises to substantially the same condition as existed
immediately before such Casualty (provided, however, that Lessor shall not be required to repair
or replace any Trade Fixtures or any of Lessee’s Personal Property) as soon as reasonably possible
after such Casualty and (ii) in the event that and to the extent that, Lessee is prevented from
using and does not use the Premises or any portion thereof as a result of a Casualty (because such
Casualty damages the Premises required and essential for access to the Premises and as a result
thereof, renders any material portion of the Premises that, but for the occurrence of the
Casualty, Lessee would have used, unfit for occupancy), Lessee’s Rent (including Base Rent,
Additional Rent, Parking Fees and Parking Taxes) shall be abated or reduced, as the case may be
(in the proportion that the Rentable Area of the portion of the Premises that Lessee is prevented
from using, would have used and does not use, bears to the total Rentable Area of the Premises),
during the period required for Lessor to complete such Restoration. “Insured Loss” means damage or
destruction of the Premises (excluding Trade Fixtures and all other Lessee’s Personal Property)
that is caused by an event required to be covered by the insurance required to be carried by the
Insuring Party, irrespective of any deductible amounts or coverage limits involved.
(c) Notwithstanding anything to the contrary in this Section 9.1, if any Casualty occurs at
any time after the first (1st) anniversary of the Commencement Date, Lessor shall have the right
(whether or not such Casualty was an Insured Loss) to elect not to perform the Restoration by
delivering to Lessee written notice (the “Non-Restoration Notice”) that Lessor is electing not to
perform such Restoration within thirty (30) days after the occurrence of such Casualty. If Lessor
delivers a Non-Restoration Notice, Lessee shall have the right, exercisable at any time thereafter
by delivery of written notice to Lessor, to elect to terminate this Lease, and if Lessee so elects
to terminate this Lease under this Section 9.1(c), then unless such Casualty was caused by the
willful misconduct of Lessee, Lessor shall promptly pay to Lessee an amount equal to the Additional
Rent previously paid by Lessee under Section 4.2, above, that is allocable to premiums paid for the
insurance carried by Lessor pursuant to Section 8.3, above for a period of time equal to the
portion of the Term remaining at the time that the applicable Casualty occurred (such that, by way
of example only, if the Lease were terminated under this Section 9.1(c) as a result of a Casualty
that occurred on the last day of the fifteenth (15th) month of the Term, Lessor would be required
to promptly pay to Lessee an amount equal to the Additional Rent previously paid by Lessee under
Section 4.2, above, that is allocable to premiums paid for the insurance carried by Lessor pursuant
to Section 8.3, above for a period of three (3) months).
9.2 Eminent Domain. If the Premises or any material portion thereof are taken under the
power of
eminent domain or sold under the threat of the exercise of said power (collectively
“Condemnation”), this Lease shall terminate as to
the part taken as of the date the condemning
authority takes title or possession, whichever first occurs. If more than five percent (5%) of any
building portion of the Premises, or more than ten percent (10%) of the land area portion of the
Premises not occupied by any building, is taken by Condemnation, Lessee may, at Lessee’s option,
to be exercised in writing within sixty (60) days after Lessor shall have given Lessee written
notice of such Condemnation (or in the absence of such notice, within sixty (60) days after the
condemning authority shall
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have taken possession) terminate this Lease as of the date the condemning authority takes such
possession. If Lessee 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
Rent shall be reduced in proportion to the reduction in utility of the Premises caused by such
Condemnation. Condemnation awards and/or payments shall be the property of Lessor, whether such
award shall be made as compensation for diminution in value of the leasehold, the value of the part
taken, or for severance damages; provided, however, that Lessee shall be entitled to any
compensation for Lessee’s relocation expenses, loss of business goodwill and/or Personal Property,
without regard to whether or not this Lease is terminated pursuant to the provisions of this
Paragraph. All Alterations and Utility Installations made to the Premises by Lessee, for purposes
of Condemnation only, shall be considered the property of the Lessee and Lessee shall be entitled
to any and all compensation which is payable therefor. In the event that this Lease is not
terminated by reason of the Condemnation, Lessor shall repair any damage to the Premises caused by
such Condemnation
9.3 Lessor and Lessee agree that the provisions of this Section 9 shall exclusively
govern the rights
and obligations of the parties with respect to any and all damage to, or destruction of, all or
any portion of the Lessee Space, the Building or the Property, and/or any Condemnation thereof,
and each Lessor and Lessee hereby waive and release each and all of their respective common law
and statutory rights inconsistent herewith, whether now or hereinafter in effect, including,
without limitation, (i) the provisions of Sections 1932(2) and 1933(4) of the California Civil
Code, as amended from time to time, and the provisions of any successor or other law of like
import and (ii) the provisions of Sections 1265.130 and 1265.150 of the California Code of Civil
Procedure, as amended from time to time, and the provisions of any successor or other law of like
import.
10. Real Property Taxes.
10.1 Definition of “Real Property Taxes.” As used herein, the term “Real Property Taxes”
shall include any form of assessment; real estate, general, special, ordinary or extraordinary, or
rental levy or tax (other than inheritance, personal income or estate taxes); improvement bond;
and/or license fee imposed upon or levied against any legal or equitable interest of Lessor in the
Premises and/or Lessor’s right to other income therefrom by any authority having the direct or
indirect power to tax and where the funds are generated with reference to the Building address and
where the proceeds so generated are to be applied by the city, county or other local taxing
authority of a jurisdiction within which the Premises are located. The term “Real Property Taxes”
shall also include any tax, fee, levy, assessment or charge, or any increase therein, imposed by
reason of events occurring during the term of this Lease, including but not limited to, a change
in the ownership of the Premises. Notwithstanding the foregoing, the following shall be excluded
from Real Property Taxes, (a) any assessments incurred by Lessor on a voluntary basis, (b) all
income taxes (including both state and federal income taxes), capital stock, inheritance, estate,
gift, or any other taxes imposed upon or measured by Lessor’s gross income or profits.
10.2 Payment of Taxes. Lessor shall pay the Real Property Taxes applicable to the Premises,
and except as otherwise provided in Section 10.3, any such amounts shall be included in
the calculation of Operating Expenses in accordance with the provisions of Section 4.2.
10.3
Personal Property Taxes. Lessee shall pay, prior to delinquency, all taxes assessed
against and levied upon Trade Fixtures and Lessee’s Personal Property. If any Trade Fixtures or
Lessee’s Personal Property shall be assessed with Lessor’s real property, Lessee shall pay Lessor
the taxes attributable to Lessee’s property within thirty (30) days after receipt of a written
statement.
11. Utilities. Lessee shall pay for all water, gas, heat, light, power, telephone, trash disposal
and other utilities and services supplied to the Premises, together with any taxes thereon. If any
such services are not separately metered to Lessee, Lessee shall pay a reasonable proportion, to
be determined by Lessor, of all charges jointly metered.
12. Assignment and Subletting.
12.1 Lessor’s Consent Required; Permitted Transfers.
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(a) Subject to Section 12.1(b), below, Lessee shall not voluntarily or by operation of law
assign, transfer, mortgage or encumber (collectively, “assign or assignment”) or sublet all or any
part of Lessee’s interest in this Lease or in the Premises without Lessor’s prior written consent.
(b) Notwithstanding anything to the contrary set forth in this Lease, this Lease may be
assigned or all or any portion of the Premises may be sublet or otherwise transferred, in fact or
by operation of law, by Lessee to (i) any Affiliate (defined below) of Lessee or (ii) to any
Successor (defined below) of Lessee without the consent of Lessor (i.e., such Transfers shall be
exempt from such Lessor consent requirements) and without being subject to any of the provisions
of this Section 12 other than this Section 12.1(b); provided, however, that Lessor may not make
any such assignment or sublease to an Affiliate or Successor at a rental rate that exceeds the
rental rate to be paid by Lessee hereunder. An “Affiliate” means, as to any designated person or
entity, any other person or entity which controls, is controlled by or is under common control
with, such designated person or entity, A “Successor” means any person or entity which acquires in
a single transaction or in a series of related transactions (by merger, consolidation, transfer of
assets or otherwise) this Lease and all or substantially all of the other property and assets of
Lessee, and assumes by written instrument all of Lessee’s liabilities hereunder. “Control,” as
used in this Section 12.1(b), means the possession, direct or indirect, of the power to direct or
cause the direction of the management and policies of a person or entity, or ownership of any
sort, whether through the ownership of voting securities, by contract or otherwise.
12.2 Terms and Conditions Applicable to Assignment and Subletting.
(a) Regardless of Lessor’s consent, any assignment or subletting shall not: (i) be effective
without the express written assumption by such assignee or sublessee of the obligations of Lessee
under this Lease, (ii) release Lessee of any obligations hereunder, or (iii) alter the primary
liability of Lessee for the payment of Rent or for the performance of any other obligations to be
performed by Lessee. Lessor may accept Rent or performance of Lessee’s obligations from any person
other than Lessee pending approval or disapproval of an assignment. Neither a delay in the
approval or disapproval of such assignment, nor the acceptance of Rent or performance shall
constitute a waiver or estoppel of Lessor’s right to exercise its remedies for Lessee’s Default or
Breach. Lessor’s consent to any assignment or subletting shall not constitute its consent to any
subsequent assignment or subletting.
(b) Each request for consent to an assignment or subletting shall be in writing, accompanied
by information relevant to Lessor’s determination as to the financial and operational
responsibility and appropriateness of the proposed assignee or sublessee, including but not
limited to the intended use and/or required modification of the Premises, if any. Lessee agrees to
provide Lessor with such other or additional information and/or documentation as may be reasonably
requested and shall further pay Lessor’s costs (not to exceed $1,500.00), including reasonable
attorneys’ fees, incurred in considering and processing such request for consent.
(c) Any assignee of, or sublessee under, this Lease shall, by reason of accepting such
assignment or entering into such sublease, be deemed to have assumed and agreed to conform and
comply with each and every term, covenant, condition and obligation herein to be observed or
performed by Lessee during the term of said assignment or sublease, other than such obligations as
are contrary to or inconsistent with provisions of an assignment or sublease to which Lessor has
specifically consented to in writing.
12.3 Additional Terms and Conditions Applicable to Subletting.
(a) If Lessee requests Lessor’s consent to a sublet of the Premises, or any portion thereof,
for a term consisting of substantially all of the then remaining portion of the Term, Lessor may
recapture the portion of the Premises Lessee desires to sublet. If Landlord exercises it option to
recapture as provided herein, Landlord may, if it so elects, enter into a new lease for the
Premises or any portion thereof with the proposed sublessee or other third party on such terms as
Landlord and the proposed sublessee or other third party may agree and the terms of Section
2.4(b), above shall apply (as if such recaptured space were Non-Office Premises Space recaptured by
Lessor pursuant to Section 2.4(a), above).
(b) If Lessee requests Lessor’s consent to a sublet of the Premises, or any portion thereof,
for a term consisting of less than substantially all of the then remaining portion of the Term,
and Lessor consents thereto, then Lessee shall pay to Lessor as Additional Rent, an amount equal
to fifty percent (50%) of any sublet rent
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received by Lessee in excess of the Base Rent hereunder (after recovery by Lessee of all of its
reasonable out of pocket costs and expenses incurred in connection with such subletting).
13. Default; Breach; Remedies.
13.1 Default; Breach. A “Default” is defined as a failure by the Lessee to comply with or
perform
any of the terms, covenants, conditions or rules under this Lease. A “Breach” is defined as
the occurrence of one or
more of the following Defaults, and the failure of Lessee to cure such Default within any
applicable grace period:
(a) The failure of Lessee to make any payment of Rent required to be made by Lessee hereunder
when due where such failure continues for a period of five (5) business days following written
notice to Lessee.
(b) The failure by Lessee to execute and deliver any statement or document required to be
executed and delivered by Lessee pursuant to Section 16 or Section 30 within the
time periods specified therefor, where such failure continues for ten (10) business days after
delivery of written notice of such failure by Lessor to Lessee, which notice shall reference this
Section 13.1(b) and state that a Breach will be deemed to occur if Lessee shall continue
to fail to execute and deliver such statement or document.
(c) A Default by Lessee, other than those described in Sections 13.1(a),
13.1(b), 13.1(d) or 13.1(e), if such Default continues for thirty (30)
days after written notice thereof by Lessor to Lessee; provided, however, that if the nature of
such Default is such that it cannot reasonably be cured within a thirty (30) day period, no Breach
by Lessee shall exist if Lessee commences the curing of such Default within such thirty (30) day
period and thereafter diligently prosecutes such cure to completion.
(d) The abandonment of the Premises.
(e) The occurrence of any of the following events: (i) the making of any general arrangement
or assignment for the benefit of creditors; (ii) becoming a “debtor” as defined in 11 U.S.C. § 101
or any successor statute thereto (unless, in the case of a petition filed against Lessee, the same
is dismissed within ninety (90) days); (iii) the appointment of a trustee or receiver to take
possession of substantially all of Lessee’s assets located at the Premises or of Lessee’s interest
in this Lease, where possession is not restored to Lessee within sixty (60) days; or (iv) the
attachment, execution or other judicial seizure of substantially all of Lessee’s assets located at
the Premises or of Lessee’s interest in this Lease, where such seizure is not discharged within
sixty (60) days; provided, however, in the event that any provision of this subparagraph (e) is
contrary to any applicable law, such provision shall be of no force or effect, and not affect the
validity of the remaining provisions.
13.2 Remedies.
(a) If Lessee fails to perform any of its affirmative duties or obligations, within the
notice and cure period described in Section 13.1, above, (or in case of an emergency,
without notice), Lessor may, at its option, perform such duty or obligation on Lessee’s behalf,
and the reasonable out of pocket costs and expenses of any such performance by Lessor shall be due
and payable by Lessee within 30 days following receipt of a reasonably detailed invoice therefor,
with interest thereon from the date incurred at a rate of interest equal to the Default Rate
(defined below).
(b) In the event of a Breach, Lessor may, with or without further notice or demand, and
without limiting Lessor in the exercise of any right or remedy which Lessor may have by reason of
such Breach, Terminate Lessee’s right to possession of the Premises by any lawful means, in which
case this Lease shall terminate and Lessee shall immediately surrender possession to Lessor, and
Lessor shall be entitled to recover from Lessee:
(i) the unpaid Rent which had been earned at the time of termination;
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(ii) the worth at the time of award of the amount by which the unpaid rent
which
would have been earned after termination until the time of award exceeds the amount of such rental
loss that the Lessee proves could have been reasonably avoided;
(iii) the worth at the time of award of the amount by which the unpaid rent
for the
balance of the term after the time of award exceeds the amount of such rental loss that the Lessee
proves could be reasonably avoided; and
(iv) Subject to Section 13.6, any other amount reasonably necessary to
compensate
Lessor for all the detriment proximately caused by Lessee’s failure to perform its obligations
under this Lease or which in the ordinary course of things would be likely to result therefrom.
The worth at the time of award of the amount referred to (A) in provision (iii) above shall
be computed by discounting such amount at the Default Rate and (B) in provision (iii) above shall
be computed by discounting such amount at the discount rate of the Federal Reserve Bank of the
District within which the Premises are located (the “Reference Rate”) at the time of award plus
one percent (1%).
(c) Continue the Lease and Lessee’s right to possession and recover the Rent as it becomes
due, in which event Lessee may sublet or assign, subject only to reasonable limitations. Acts of
maintenance, efforts to relet, and/or the appointment of a receiver to protect the Lessor’s
interests, shall not constitute a termination of the Lessee’s right to possession.
(d) Pursue any other remedy now or hereafter available under the laws or judicial decisions of
the state wherein the Premises are located. The expiration or termination of this Lease and/or the
termination of Lessee’s right to possession shall not relieve Lessee from liability under any
indemnity provisions of this Lease as to matters occurring or accruing during the term hereof or by
reason of Lessee’s occupancy of the Premises.
13.3 Late Charges. Lessee hereby acknowledges that late payment by Lessee of Rent will cause
Lessor 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, and late charges which may be imposed upon Lessor by any Lender. Accordingly, if any Rent
shall not be received by Lessor within five (5) business days after such amount shall be due (a
“Late Payment Delinquency”), then Lessee shall pay to Lessor a one-time late charge equal to six
percent (6%) of each such overdue amount; provided, however that, notwithstanding the foregoing,
Lessor shall waive the imposition of any late charge on account of the occurrence of a Late Payment
Delinquency if (a) the Late Payment Delinquency is cured within five (5) business days Lessee’s
receipt of written notice thereof and (b) there has not occurred more than one (1) Late Payment
Delinquency during the Term. The parties hereby agree that such late charge represents a fair and
reasonable estimate of the costs Lessor will incur by reason of such late payment. Acceptance of
such late charge by Lessor shall in no event constitute a waiver of Lessee’s Default or Breach with
respect to such overdue amount, nor prevent the exercise of any of the other rights and remedies
granted hereunder.
13.4 Interest. Any monetary payment due Lessor hereunder, other than late charges, not
received by Lessor, within five (5) business days after such amount shall be due (such that a Late
Payment Delinquency shall exist), shall bear interest from the date when due, at an annual rate of
interest (the “Default Rate”) equal to the prime rate reported in the Wall Street Journal as
published closest prior to the date when due (the “Prime Rate”) plus seven percent (7%), but shall
not exceed the maximum rate allowed by law; provided, however, that Lessor shall waive the
imposition of interest on any past due amounts on account of the occurrence of a Late Payment
Delinquency if (a) the Late Payment Delinquency is cured within five (5) business days Lessee’s
receipt of written notice thereof and (b) there has not occurred more than one (1) Late Payment
Delinquency during the Term. Interest is payable in addition to the potential late charge provided
for in Section 13.3.
13.5 Breach by Lessor.
(a) Notice of Breach. Lessor shall not be deemed in breach of this Lease unless
Lessor fails
within a reasonable time to perform an obligation required to be performed by Lessor. For purposes
of this Section
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13.5(a). a reasonable time shall in no event be less than thirty (30) days after receipt
by Lessor, and any Lender whose name and address shall have been furnished Lessee in writing for
such purpose, of written notice specifying wherein such obligation of Lessor has not been
performed; provided, however, that if the nature of Lessor’s obligation is such that more than
thirty (30) days are reasonably required for its performance, then Lessor shall not be in breach
if performance is commenced within such thirty (30) day period and thereafter diligently pursued
to completion.
(b) Performance by Lessee on Behalf of Lessor. In the event that neither Lessor nor Lender
cures said breach within thirty (30) days after receipt of said notice, or if having commenced
said cure they do not diligently pursue it to completion, then Lessee may elect to cure said
breach at Lessee’s expense and offset from Rent an amount equal to the reasonable expenses
incurred by Lessee in curing such breach. Lessee shall document the cost of said cure and supply
said documentation to Lessor.
(c) Limits on Lessor’s Obligations Under Sections 6.3 and 7.2. Notwithstanding anything to
the contrary in this Lease, Lessor shall have no obligation under Section 6.3 and/or Section 7.2
to incur (a) any costs for Capital Items in excess of $100,000 (in the aggregate) or (b) any costs
for Capital Items to the extent the need therefore arises at any time after the first anniversary
of the Commencement Date; provided, however, that if, but for the operation of the limitations set
forth in this Section 13.5(c), Lessor would be obligated to perform any obligations under Section
6.3 or Section 7.2 that would require it to incur any costs for Capital Items and Lessor elects
not to perform such obligations, Lessor shall deliver written notice that it does not intend to
perform such obligations, and Lessee shall thereafter have the right to terminate this Lease upon
delivery of not less than thirty (30) days written notice to Lessor.
13.6 Waiver of Consequential Damages. Notwithstanding any provision to the contrary contained
in this Lease, at no time and under no circumstances shall either Lessor or Lessee be responsible
or liable to the other for any lost profits, lost economic opportunities or any other form of
consequential or punitive damages (collectively, “Consequential Damages”) as the result of any
actual or alleged breach by either Lessor or Lessee of its obligations under this Lease; provided,
however, that notwithstanding the above, this Section 13.6 shall not limit or otherwise
affect either party’s liability with respect to claims of fraud, willful misconduct, or bad faith.
14. [Intentionally Omitted]
15. Brokers’ Fee. Lessor and Lessee each represent and warrant to each other that it has not
engaged any broker, finder or other person who would be entitled to any commission or fees in
respect of the negotiation, execution or delivery of this Lease other
than the brokers described in
Section 1.7(a)(i) and 1.7(a)(ii), above, and shall indemnify and hold harmless each
other against any loss, cost, liability or expense incurred by the other party as a result of any
claim asserted by any such broker, finder or other person (i.e., other than Lessor’s Broker) on
the basis of any arrangements or agreements made or alleged to have been made in variance with
this representation.
16. Estoppel Certificates. Each Party (as “Responding Party”) shall within ten (10) business days
after written notice from the other Party (the “Requesting Party”) execute, acknowledge and
deliver to the Requesting Party a commercially reasonable statement in writing in form similar to
the then most current “Estoppel Certificate” form published by the American Industrial Real Estate
Association, plus such additional information, confirmation and/or statements as may be reasonably
requested by the Requesting Party.
17. Definition of Lessor. The term “Lessor” as used herein means the owner or owners at the time
in question of the fee title to the Premises. In the event of a transfer of Lessor’s title or
interest in the Premises or this Lease, the prior Lessor shall be relieved of all liability with
respect to the obligations and/or covenants under this Lease thereafter to be performed by the
Lessor.
18. Severability. The invalidity of any provision of this Lease, as determined by a court of
competent jurisdiction, shall in no way affect the validity of any other provision hereof.
19. Days. Unless otherwise specifically indicated to the contrary, the word “days” as used in this
Lease means and refers to calendar days.
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20. Limitation on Liability. Subject to the provisions of Section 17, above, the
obligations of Lessor under this Lease shall not constitute personal obligations of Lessor, the
individual partners of Lessor or its or their individual partners, directors, officers or
shareholders, and Lessee shall look to the Premises, and to no other assets of Lessor, for the
satisfaction of any liability of Lessor with respect to this Lease, and shall not seek recourse
against the individual partners of Lessor, or its or their individual partners, directors,
officers or shareholders, or any of their personal assets for such satisfaction.
21. 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.
22. No Prior or Other Agreements. This Lease contains all agreements between the Parties with
respect to any matter mentioned herein, and no other prior or contemporaneous agreement or
understanding shall be effective. Lessor and Lessee each represents and warrants to the Brokers
that it has made, and is relying solely upon, its own investigation as to the nature, quality,
character and financial responsibility of the other Party to this Lease and as to the nature,
quality and character of the Premises.
23. Notices. All notices and communications to any party hereunder shall be in writing and shall be
deemed properly given if delivered personally, sent by registered or certified mail, postage
prepaid, or by a reputable overnight commercial messenger providing proof of delivery, to Lessor’s
address for notice or Lessee’s address for Notice, as applicable, as set forth herein. Any notice
so given shall be deemed to have been given as of the date of (a) personal delivery (whether
accepted or refused), (b) delivery (whether accepted or refused) established by U.S. Post Office
return receipt, or (c) the overnight carrier’s proof of delivery as the case may be. Any such
notice not so given shall be deemed given upon receipt of the same by the party to whom the same is
to be given.
24. Waivers. No waiver by Lessor or Lessee of the Default or Breach of any term, covenant or
condition hereof by Lessee or Lessor, as applicable, shall be deemed a waiver of any other term,
covenant or condition hereof, or of any subsequent Default or Breach by Lessee or Lessor, as
applicable, of the same or of any other term, covenant or condition hereof. Lessor’s consent to, or
approval of, any act shall not be deemed to render unnecessary the obtaining of Lessor’s consent
to, or approval of, any subsequent or similar act by Lessee, or be construed as the basis of an
estoppel to enforce the provision or provisions of this Lease requiring such consent. The
acceptance of Rent by Lessor shall not be a waiver of any Default or Breach by Lessee (except with
respect to the payment of the Rent so accepted, provided that such accepted Rent fully cures the
Default or Breach by Lessee with respect to such payment). Any payment by Lessee may be accepted by
Lessor on account of moneys or damages due Lessor, notwithstanding any qualifying statements or
conditions made by Lessee in connection therewith, which such statements and/or conditions shall be
of no force or effect whatsoever unless specifically agreed to in writing by Lessor at or before
the time of deposit of such payment.
25. [Intentionally Omitted]
26. No Right To Holdover. Lessee has no right to retain possession of the Premises or any part
thereof beyond the expiration or termination of this Lease. In the event that Lessee holds over,
then the Base Rent shall be increased to one hundred fifty percent (150%) of the FMV (as defined
below) for the Premises. “FMV” means the then fair market value, on a per square foot of rentable
area basis, for comparable premises in comparable properties located in the same sub-market as the
Building, multiplied by the number of square feet of rentable area contained in the Premises.
Nothing contained herein shall be construed as consent by Lessor to any holding over by Lessee.
27. Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall,
wherever possible, be cumulative with all other remedies at law or in equity.
28. Construction of Agreement. In construing this Lease, all headings and titles are for the
convenience of the parties only and shall not be considered a part of this Lease. Whenever
required by the context, the singular shall include the plural and vice versa. This Lease shall
not be construed as if prepared by one of the parties, but rather according to its fair meaning as
a whole, as if both parties had prepared it.
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29. 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 (without regard to its conflicts of laws rules or principles). Any litigation
between the Parties hereto concerning this Lease shall be initiated in the county in which the
Premises are located.
30.
Subordination; Attornment; Non-Disturbance.
30.1
Subordination; Attornment. Subject to Section 30.2, below, this Lease shall be
subject and subordinate to any ground lease, mortgage, deed of trust, or other hypothecation or
security device (collectively, “Security Device”), now or hereafter placed upon the Premises, to
any and all advances made on the security thereof, and to all renewals, modifications, and
extensions thereof. Any holders of any such Security Devices (each, a “Lender”) may elect to have
this Lease and/or any Option granted hereby superior to the lien of its Security Device by giving
written notice thereof to Lessee, whereupon this Lease and such Options shall be deemed prior to
such Security Device, notwithstanding the relative dates of the documentation or recordation
thereof. Subject to Section 30.2, below, Lessee agrees to attorn to a Lender or any other
party who acquires ownership of the Premises by reason of a foreclosure of a Security Device.
30.2 Non-Disturbance. Notwithstanding anything to the contrary in this Lease, Lessee’s
agreement in Section 30.1, above to, (a) subordinate its interest
hereunder and (b) to attorn to and recognize as the landlord hereunder any Lender is expressly
conditioned upon the delivery by such Lender of a commercially reasonable non-disturbance
agreement (a “Non-Disturbance Agreement”) in favor of Lessee, which Non-Disturbance Agreement
shall provide that Lessee’s possession of the Premises, and this Lease, including any options to
extend the term hereof, will not be disturbed so long as Lessee is not in Breach hereof and
attorns to the record owner of the Premises and shall also provide that in such case, such Lender
shall agree to perform Lessor’s obligations hereunder.
30.3
Self-Executing. The agreements contained in this Section 30 shall be effective without
the execution of any further documents; provided, however, that, upon written request from Lessor
or a Lender in connection with a sale, financing or refinancing of the Premises, Lessee and Lessor
shall execute such further commercially reasonable writings as may be reasonably required to
separately document any subordination, attornment and/or Non-Disturbance Agreement provided for
herein
31. Attorneys’ Fees. If any Party or Broker brings an action or proceeding involving the Premises
to enforce the terms hereof or to declare rights hereunder, the Prevailing Party (as hereafter
defined) in any such proceeding, action, or appeal thereon, shall be entitled to reasonable
attorneys’ fees. Such fees may be awarded in the same suit or recovered in a separate suit,
whether or not such action or proceeding is pursued to decision or judgment. The term, “Prevailing
Party” shall include, without limitation, a Party or Broker who substantially obtains or defeats
the relief sought, as the case may be, whether by compromise, settlement, judgment, or the
abandonment by the other Party or Broker of its claim or defense. The attorneys’ fees award shall
not be computed in accordance with any court fee schedule, but shall be such as to fully reimburse
all attorneys’ fees reasonably incurred.
32. Lessor’s Access; Showing Premises; Repairs. Lessor and Lessor’s agents shall have the right to
enter the Premises at any time in the case of an emergency, and otherwise at reasonable times and
upon not less than two (2) business days notice, for the purpose of showing the same to
prospective purchasers, lenders, or lessees, and making such alterations, repairs, improvements or
additions to the Premises as Lessor may deem necessary. All such activities shall be without
abatement of rent or liability to Lessee. Lessor may place on the Premises at any time any
ordinary “For Sale” signs and Lessor may during the last six (6) months of the term hereof place
on the Premises any ordinary “For Lease” signs. Lessee may place on or about the Premises at any
time any ordinary “For Sublease” sign. Lessee shall have the right to cause a representative of
Lessee to accompany Lessor or Lessor’s agents during any such entrance upon the Premises.
33.
Auctions. Lessee shall not conduct, nor permit to be conducted,
any auction upon the Premises
without Lessor’s prior written consent. Lessor shall not be obligated to exercise any standard of
reasonableness in determining whether to permit an auction.
34. Consents. Except as otherwise provided herein, wherever in this Lease the consent of a Party
is required to an act by or for the other Party, such consent shall not be unreasonably withheld,
conditioned or delayed. In the
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event that either Party disagrees with any determination made by the other hereunder and
reasonably requests the reasons for such determination, the determining party shall furnish its
reasons in writing and in reasonable detail within ten (10) business days following such request.
35. Quiet Possession. Subject to payment by Lessee of the Rent and performance of all of the
covenants, conditions and provisions on Lessee’s part to be observed and performed under this
Lease, Lessee shall have quiet possession and quiet enjoyment of the Premises during the term
hereof.
36. Security Measures. Lessee hereby acknowledges that the rental payable to Lessor hereunder does
not include the cost of guard service or other security measures, and that Lessor shall have no
obligation whatsoever to provide same. Lessee assumes all responsibility for the protection of the
Premises, Lessee, its agents and invitees and their property from the acts of third parties.
37. Reservations. Lessor reserves to itself the right, from time to time, to grant, without the
consent or joinder of Lessee, such easements, rights and dedications that Lessor deems necessary,
and to cause the recordation of parcel maps and restrictions, so long as such easements, rights,
dedications, maps and restrictions do not unreasonably interfere with the use of the Premises by
Lessee. Lessee agrees to sign any commercially reasonable documents reasonably requested by Lessor
to effectuate any such easement rights, dedication, map or
restrictions.
38. Performance Under Protest. If at any time a dispute shall arise as to any amount or sum of
money to be paid by one Party to the other under the provisions hereof, the Party against whom the
obligation to pay the money is asserted shall have the right to make payment “under protest” and
such payment shall not be regarded as a voluntary payment and there shall survive the right on the
part of said Party to institute suit for recovery of such sum. If it shall be adjudged that there
was no legal obligation on the part of said Party to pay such sum or any part thereof, said Party
shall be entitled to recover such sum or so much thereof as it was not legally required to pay
together with interest thereon at the Prime Rate plus two percent (2%).
39. Authority. If either Party hereto is a corporation, trust, limited liability company,
partnership, or similar entity, each individual executing this Lease on behalf of such entity
represents and warrants that he or she is duly authorized to execute and deliver this Lease on its
behalf.
40. 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.
41. Offer. Preparation of this Lease by either Party or their agent and submission of same to the
other Party shall not be deemed an offer to lease to the other Party. This Lease is not intended to be binding
until executed and delivered by all Parties hereto.
42. Amendments. This Lease may be modified only in writing, signed by the Parties in interest at
the time of the modification. As long as they do not materially change Lessee’s obligations
hereunder, Lessee agrees to make such reasonable non-monetary modifications to this Lease as may
be reasonably required by a Lender in connection with the obtaining of normal financing or
refinancing of the Premises.
43. Multiple Parties. If more than one person or entity is named herein as either Lessor or
Lessee, such multiple Parties shall have joint and several responsibility to comply with the terms
of this Lease.
[Signature Page Follows]
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IN WITNESS WHEREOF, this Lease is hereby executed as of the Effective Date.
LESSEE: OPTICAL COMMUNICATION PRODUCTS, INC. a Delaware Corporation |
||||
By: | /s/ Xxxxxxxx X. Buyer | |||
Name Printed: Xxxxxxxx X. Buyer | ||||
Title: | Senior Vice President & CFO | |||
By: | /s/ Xxxxx X. Xxxxxx | |||
Name Printed: Xxxxx X. Xxxxxx | ||||
Title: | Controller |
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LESSOR: DS-VARIEL AVENUE, LLC a California limited liability company |
||||||
By: | /s/ | |||||
Name Printed: | ||||||
Title: | ||||||
By: | ||||||
Name Printed: | ||||||
Title: | ||||||
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EXHIBIT A
LEGAL DESCRIPTION
XXXX 0 XXX 0 XX XXXXX XX. 00000, XX THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, STATE OF
CALIFORNIA, AS PER MAP RECORDED IN BOOK 790 PAGES 98 AND 99 OF MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY.
EXHIBIT B
EXISTING
HAZMAT ACTIVITIES
The following materials are used, generated,
possessed, stored and/or transported to and from the Premises:
1. | Fluorinet FC- 40 | |
2. | Isopropyl Alcohol | |
3. | Acetone | |
4. | Tech Spray G-3 flux remover | |
5. | Chemtronic electro — wash | |
6. | Rosin 1544 solder flux | |
7. | Mechanical vacuum pump fluid | |
8. | Xxxxxxx XX | |
9. | Formula 815 G-D. | |
10. | Helium (compressed gas cylinders stored on site) | |
11. | Argon (compressed gas cylinders stored on site) |
EXHIBIT C
LESSEE RETAINED UTILITY INSTALLATIONS
1. | Liquid Nitrogen System. | |
2. | Three Compressed Air Systems located on the Premises |
EXHIBIT D
NON-OFFICE SPACE
[attached]