EXHIBIT 10.8
FORM OF
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
STANDARD INDUSTRIAL/COMMERCIAL SINGLE-TENANT LEASE - NET
(DO NOT USE THIS FORM FOR MULTI-TENANT BUILDINGS)
1. Basic Provisions ("Basic Provisions")
1.1 Parties: This Lease ("Lease"), dated for reference purposes only,
August 11, 1997, is made by and between ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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("Lessor") and The SMT Centre, Inc., a California Corporation ("Lessee"),
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(collectively the "Parties," or individually a "Party").
1.2 Premises: That certain real property, including all improvements
therein or to be provided by Lessor under the terms of this Lease, and commonly
known as 2302 Trade Zone Boulevard, located in the County of Santa ▇▇▇▇▇, State
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of California, and generally described as (describe briefly the nature of the
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property and, if applicable, the "Project", it the property is located within a
Project) 64,800 square foot industrial building ("Premises"). (See also
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Paragraph 2)
1.3 Term: 5 years and 0 months ("Original Term") commencing see Work
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Letter ("Commencement Date") and ending on the 5th anniversary of the
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Commencement Date ("Expiration Date"). (See also Paragraph 3)
1.4 Early Possession: _____________________ ("Early Possession Date").
(See also Paragraphs 3.2 and 3.3)
1.5 Base Rent: $ 58,320.00 per month ("Base Rent"), payable on the first
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day of each month commencing on the Commencement Date. (See also Paragraph, 4)
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[X] If this box is checked, there are provisions In this Lease for the Base Rent
to be adjusted. See addendum
1.6 Base Rent Paid Upon Execution: $ 58,320.00 as Base Rent for the period
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commencing on the Commencement Date.
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1.7 Security Deposit: $ 71,280.00 ("Security Deposit"). (See also
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Paragraph 5)
1.8 Agreed Use: Contract assembly, outsource manufacturing and storage
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(See also Paragraph 6)
1.9 Insuring Party. Lessor is the "Insuring Party" unless otherwise stated
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herein. (See also Paragraph 8)
1.10 Real Estate Brokers: (See also Paragraph 15)
(a) Representation: The following real estate brokers (collectively,
the "Brokers") and brokerage relationships exist in this transaction (check
applicable boxes):
[X] Cornish & ▇▇▇▇▇ Commercial represents Lessor exclusively ("Lessor's
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Broker");
[X] Colliers ▇▇▇▇▇▇▇, Inc. represents Lessee exclusively ("Lessee's
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Broker"); or
[_] represents both Lessor and Lessee ("Dual
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Agency").
(b) Payment to Brokers: Upon execution and delivery of this Lease by
both Parties, Lessor shall pay to the Broker the fee agreed to in their separate
written agreement (or if there is no such agreement, the sum of N/A % of the
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Total Base Rent for the brokerage services rendered by said Broker).
1.11 Guarantor. The obligations of the Lessee under this Lease are to be
guaranteed by Surface Mount Technology Centre, Inc. a Canadian (Ontario)
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Corporation (See Guarantee of Lease ("Guarantor"). (See also Paragraph 37)
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1.12 Addenda and Exhibits. Attached hereto Is an Addendum or Addenda
consisting of Paragraphs 50 through 57 and Exhibits A and Guarantee of Lease,
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all of which 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. Unless otherwise
provided herein, any statement of size set forth in this Lease, or that may have
been used in calculating rental, is an approximation which the Parties agree is
reasonable and the rental based thereon is not subject to revision whether or
not the actual size is more or less.
2.2 Condition. Lessor shall deliver the Premises to Lessee broom clean
and free of debris on the Commencement Date ("Start Date"), and, so long as the
required service contracts described in Paragraph 7.l(b) below are obtained by
Lessee within thirty (30) days following the Start Date, warrants that the
existing electrical, plumbing, fire sprinkler, lighting, heating, ventilating
and air conditioning systems ("HVAC"), loading doors, if any, and all other such
elements in the Premises, other than those constructed by Lessee, shall be in
good operating condition on said date and that the structural elements of the
roof, bearing walls and foundation of any buildings on the Premises (the
"Building") shall be free of material defects. If a non-compliance with said
warranty exists as of the Start Date, Lessor shall, as Lessor's sole obligation
with respect to such matter, except as otherwise provided in this Lease,
promptly after receipt of written notice from Lessee setting forth with
specificity the nature and extent of such non-compliance, rectify same at
Lessor's expense.
2.3 Compliance. Lessor warrants that the improvements on the Premises
comply with all applicable laws, covenants or restrictions of record, building
codes, regulations and ordinances ("Applicable Requirements") in effect on the
Start Date. Said warranty does not apply to the use to which Lessee will put the
Premises or to any Alterations or Utility Installations (as defined in Paragraph
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7.3(a)) made or to be made by Lessee. If the Premises do not comply with said
warranty, Lessor shall, except as otherwise provided, promptly after receipt of
written notice from Lessee setting forth with specificity the nature and extent
of such non-compliance, rectify the same at Lessor's expense. If the Applicable
Requirements are hereafter changed (as opposed to being in existence at the
Start Date, which is addressed in Paragraph 6.2(e) below) so as to require
during the term of this Lease the construction of an addition to or an
alteration of the Building, the remediation of any Hazardous Substance, or the
reinforcement or other physical modification of the Building ("Capital
Expenditure"), Lessor and Lessee shall allocate the cost of such work as
follows:
(a) Subject to Paragraph 2.3(c), if such Capital Expenditures are
required as a result of the specific and unique use of the Premises by Lessee as
compared with uses by tenants in general, Lessee shall be fully responsible for
the cost thereof, provided, however that if such Capital Expenditure is required
during the last two (2) years of this Lease and the cost thereof exceeds six (6)
months' Base Rent, Lessee may instead terminate this Lease unless Lessor
notifies Lessee, in writing, within ten (10) days after receipt of Lessee's
termination notice that Lessor has elected to pay the difference between the
actual cost thereof and the amount equal to six (6) months' Base Rent. If Lessee
elects termination, Lessee shall immediately cease the use of the Premises,
which requires such Capital Expenditure and deliver to Lessor written notice
specifying a termination date at least ninety (90) days thereafter. Such
termination date shall, however, in no event be earlier than the last day that
Lessee could legally utilize the Premises without commencing such Capital
Expenditure.
(b) If such Capital Expenditure is not the result of the specific and
unique use of the Premises by Lessee (such as, governmentally mandated seismic
modifications), then Lessor and Lessee shall allocate the obligation to pay for
such costs pursuant to the provisions of Paragraph 7.1(c); provided, however,
that if such Capital Expenditure is required during the last two years of this
Lease or if Lessor reasonably determines that it is not economically feasible to
pay its share thereof, Lessor shall have the option to terminate this Lease upon
ninety (90) days prior written notice to Lessee unless Lessee notifies Lessor,
in writing, within ten (10) days after receipt of Lessor's termination notice
that Lessee will pay for such Capital Expenditure. If Lessor does not elect to
terminate, and fails to tender its share of any such Capital Expenditure, Lessee
may advance such funds and deduct same with Interest, from Rent until Lessor's
share of such costs have been fully paid. It Lessee is unable to finance
Lessor's share, or it the balance of the Rent due and payable for the remainder
of this Lease is not sufficient to fully reimburse Lessee on an offset basis,
Lessee shall have the right to terminate this Lease upon thirty (30) days
written notice to Lessor. See addendum
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(c) Notwithstanding the above, the provisions concerning Capital
Expenditures are intended to apply only to non-voluntary, unexpected, and new
Applicable Requirements. If the Capital Expenditures are instead triggered by
Lessee as a result of an actual or proposed change in use, change in intensity
of use, or modification to the Premises then, and in that event, Lessee shall be
fully responsible for the cost thereof, and Lessee shall not have any right to
terminate this Lease.
2.4 Acknowledgments. Lessee acknowledges that: (a) it has been advised by
Lessor and/or Brokers to satisfy itself with respect to the condition of the
Premises (including but not limited to the electrical, HVAC and fire sprinkler
systems, security, environmental aspects, and compliance with Applicable
Requirements), and their suitability for Lessee's intended use, (b) Lessee has
made such investigation as it deems necessary with reference to such matters and
assumes all responsibility therefor as the same relate to its occupancy of the
Premises, and (c) neither Lessor, Lessor's agents, nor any Broker has made any
oral or written representations or warranties with respect to said matters,
other than as set forth in this Lease. In addition, Lessor acknowledges that:
(a) Broker has made no representations, promises or warranties concerning
Lessee's ability to honor the Lease or suitability to occupy the Premises, and
(b) it is Lessor's sole responsibility to investigate the financial capability
and/or suitability of all proposed tenants.
2.5 Lessee as Prior Owner/Occupant. The warranties made by Lessor in
Paragraph 2 shall be of no force or effect if immediately prior to the Start
Date Lessee was the owner or occupant of the Premises. In such event, Lessee
shall be responsible for any necessary corrective work.
3. Term
3.1 Term. The Commencement Date, Expiration Date and Original Term of this
Lease are as specified In Paragraph 1.3.
3.2 Early Possession. It Lessee totally or partially occupies the Premises
prior to the Commencement Date, the obligation to pay Base Rent and all other
sums hereunder shall be abated for the period of such early possession. Any such
early possession shall not affect the Expiration Date.
3.3 Delay in Possession. Lessor agrees to use its best commercially
reasonable efforts to deliver the Premises to Lessee by the Target Commencement
Date. If, despite said efforts, Lessor is unable to deliver possession as
agreed, Lessor shall not be subject to any liability therefor, nor shall such
failure affect the validity of this Lease. Lessee shall not, however, be
obligated to pay Rent or
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perform its other obligations until it receives possession of the Premises. If
possession is not delivered within sixty (60) days after the Target Commencement
Date, Lessee may, at its option, by notice in writing within ten (10) days after
the end of such sixty (60) day period, cancel this Lease, in which event the
Parties shall be discharged from all obligations hereunder. If such written
notice is not received by Lessor within said ten (10) day period, Lessee's right
to cancel shall terminate. Except as otherwise provided, if possession is not
tendered to Lessee when required and Lessee does not terminate this Lease, as
aforesaid, any period of rent abatement that Lessee would otherwise have enjoyed
shall run from the date of delivery of possession and continue for a period
equal to what Lessee would otherwise have enjoyed under the terms hereof, but
minus any days of delay caused by the acts or omissions of Lessee. If possession
of the Premises is not delivered within four (4) months after the Target
Commencement Date, this Lease shall terminate unless other agreements are
reached between Lessor and Lessee, in writing.
3.4 Lessee Compliance. Lessor shall not be required to tender possession
of the Premises to Lessee until Lessee complies with its obligation to provide
evidence of insurance (Paragraph 8.5). Pending delivery of such evidence, Lessee
shall be required to perform all of its obligations under this Lease from and
after the Start Date, including the payment of Rent, notwithstanding Lessor's
election to withhold possession pending receipt of such evidence of insurance.
Further, if Lessee is required to perform any other conditions prior to or
concurrent with the Start Date, the Start Date shall occur but Lessor may elect
to withhold possession until such conditions are satisfied.
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 Payment. Lessee shall cause payment of Rent to be received by Lessor
in lawful money of the United States, without offset or deduction, 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. 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.
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5. Security Deposit. Lessee shall deposit with Lessor upon execution hereof
the Security Deposit as security for Lessee's faithful performance of its
obligations under this Lease. If Lessee fails to pay Rent, or otherwise Defaults
under this Lease, Lessor may use, apply or retain all or any portion of said
Security Deposit for the payment of any amount due Lessor or to reimburse or
compensate Lessor for any liability, expense, loss or damage which Lessor may
suffer or incur by reason thereof. If Lessor uses or applies all or any portion
of said Security Deposit, Lessee shall within ten (10) days after written
request therefor deposit monies with Lessor sufficient to restore said Security
Deposit to the full amount required by this Lease. If the Base Rent increases
during the term of this Lease, Lessee shall, upon written request from Lessor,
deposit additional moneys with Lessor so that the total amount of the Security
Deposit shall at all times bear the same proportion to the increased Base Rent
as the initial Security Deposit bore to the initial Base Rent. Should the Agreed
Use be amended to accommodate a material change in the business of Lessee or to
accommodate a sublessee or assignee, Lessor shall have the right to increase the
Security Deposit to the extent necessary, in Lessor's reasonable judgment, to
account for any increased wear and tear that the Premises may suffer as a result
thereof. Lessor shall not be required to keep the Security Deposit separate from
its general accounts. Within fourteen (14) days after the expiration or
termination of this Lease, if Lessor elects to apply the Security Deposit only
to unpaid Rent, and otherwise within thirty (30) days after the Premises have
been vacated pursuant to Paragraph 7.4(c) below, Lessor shall return that
portion of the Security Deposit not used or applied by Lessor. 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 Lessee under this Lease.
6. Use.
6.1 Use. Lessee shall use and occupy the Premises only for the Agreed Use,
or any other legal use which is reasonable comparable thereto, and for no other
purpose. Lessee shall not use or permit the use of the Premises in a manner that
is unlawful, creates damage, waste or a nuisance, or that disturbs owners and/or
occupants of, or causes damage to neighboring properties. Lessor shall not
unreasonably withhold attorneys' and consultants' fees or delay its consent to
any written request for a modification of the Agreed Use, so long as the same
will not impair the structural integrity of the improvements on the Premises or
the mechanical or electrical systems therein, is not significantly more
burdensome to the Premises. If Lessor elects to withhold consent, Lessor shall
within five (5) business days after such request give written notification of
same, which notice shall include an explanation of Lessor's objections to the
change in use.
6.2 Hazardous Substances.
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(a) Reportable Uses Require Consent. The term "Hazardous Substance" as
used in this Lease shall mean any product, substance, or waste whose presence,
use, manufacture, disposal, transportation, or release, 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, (6) regulated or monitored by any governmental authority or
(iii) a basis for potential liability of Lessor to any governmental agency or
third party under any applicable statute or common law theory. Hazardous
Substances shall include, but not be limited to, hydrocarbons, petroleum,
gasoline. and/or crude oil or any products, by-products or fractions thereof.
Lessee shall not engage in any activity in or on the Premises which constitutes
a Reportable Use of Hazardous Substances without the express prior written
consent of Lessor and timely compliance (at Lessee's expense) with all
Applicable Requirements. "Reportable Use"shall mean (i) the installation or use
of any above or below ground storage lank, (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 Applicable Requirements 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 Applicable Requirements, is not a Reportable Use, and
does not expose the Premises or neighboring property to any meaningful risk of
contamination or damage or expose Lessor to any liability therefor. 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) and/or increasing the Security
Deposit. see addendum
(b) Duty to Inform. If Lessee knows, or has reasonable cause to
believe, that a Hazardous Substance has come to be located in, on, under or
about the Premises, other than as previously consented to by Lessor, Lessee
shall immediately give written notice of such fact to Lessor, and provide Lessor
with a copy of any report, notice, claim or other documentation which it has
concerning the presence of such Hazardous Substance. see addendum
(c) Lessee Remediation. Lessee shall not cause or permit any
Hazardous Substance to be spilled or released in, on, under, or about the
Premises
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(including through the plumbing or sanitary sewer system) and shall promptly, at
Lessee's expense, take all investigatory and/or remedial action reasonably
recommended, whether or not formally ordered or required, for the cleanup of any
contamination of and for the maintenance, security and/or monitoring of the
Premises or neighboring properties', that was caused or materially contributed
to by Lessee, or pertaining to or involving any Hazardous Substance brought onto
the Premises during the term of this Lease, by or for Lessee, or any third
party. see addendum
(d) Lessee Indemnification. Lessee shall indemnify, defend and hold
Lessor, its agents, employees, lenders and ground lessor, if any, 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 by or for Lessee,
or subsequent to the Commencement Date any third party (provided, however, that
Lessee shall have no liability under this Lease with respect to underground
migration of any Hazardous Substance under the Premises from adjacent
properties). 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. No termination, cancellation or release agreement
entered into by Lessor and Lessee shall release Lessee from its obligations
under this Lease with respect to Hazardous Substances, unless specifically so
agreed by Lessor in writing at the time of such agreement.
(e) Lessor Indemnification. Lessor and its successors and assigns
shall indemnify, defend, reimburse and hold Lessee, its employees and lenders,
harmless from and against any and all environmental damages, liabilities,
judgments, claims, expenses, penalties and attorneys' and consultants' fees
which existed as a result of Hazardous Substances on the Premises prior to the
Start Date or which migrate in, on or under the Premises from outside the
Premises or which are caused by the gross negligence, or intentional acts 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) Investigations and Remediations. 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 on the Premises prior to the Start Date. Lessee shall
cooperate fully in any such activities at the request of Lessor, including
allowing Lessor and ▇▇▇▇▇▇'▇ agents to have reasonable access to the Premises at
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reasonable times in order to carry out Lessors investigative and remedial
responsibilities. see addendum
6.3 Lessee's Compliance with Applicable Requirements. Except as otherwise
provided in this Lease, Lessee, shall, at Lessee's sole expense, fully,
diligently and in a timely manner, materially comply with all Applicable
Requirements, the reasonable requirements of any applicable fire insurance
underwriter or rating bureau, and the reasonable recommendations of Lessor's
engineers and/or consultants which relate in any manner to the Premises, without
regard to whether said requirements are now in effect or become effective after
the Start Date. Lessee shall, within ten (10) days after receipt of Lessor's
written request, provide Lessor with copies of all permits and other documents,
and other information evidencing Lessee's compliance with any Applicable
Requirements specified by Lessor, and shall immediately upon receipt, notify
Lessor in writing (with copies of any documents involved) of any threatened or
actual claim, notice, citation, warning, complaint or report pertaining to or
involving the failure of Lessee or the Premises to comply with any Applicable
Requirements. see adden.
6.4 Inspection; Compliance. Lessor and Lessor's Lender and consultants
shall have the right to enter the Premises at any time, in the case of an
emergency, and otherwise at reasonable times, for he purpose of inspecting the
condition of the Premises and for verifying compliance by Lessee with this
Lease. The cost of any such inspections shall be paid by Lessor, unless a
violation by Lessee of Applicable Requirements, or a contamination is found to
exist or be imminent, or the inspection is requested or ordered by a
governmental authority. In such case, Lessee shall upon request reimburse
Lessor for the cost of such inspections, so long as such inspection is
reasonably related to the violation or contamination.
7. Maintenance; Repairs, Utility Installations; Trade Fixtures and
Alterations.
7.1 Lessee's Obligations.
(a) In General. Subject to the provisions of Paragraph 2.2
(Condition), 2.3 (Compliance), 6.3 (Lessee's Compliance with Applicable
Requirements), 7.2 (Lessors Obligations), 9 (Damage or Destruction), and 14
(Condemnation), and the Addendum and Work Letter, Lessee's shall, at Lessee's
sole expense, keep the Premises, Utility Installations and Alterations in good
order, condition and repair (whether or not the portion of the Premises requires
repairs, or the means of repairing the same, are reasonably or readily
accessible to Lessee, and whether or not the need for such repairs occurs as a
result of Lessee's use, any prior use, the elements or the age of such portion
of the Premises), including, but not limited to, all equipment or facilities,
such as plumbing, HVAC, electrical, lighting facilities, boilers, pressure
vessels, fire protection system, fixtures, walls (interior and exterior),
ceilings, floors, windows,
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doors, plate glass, skylights, landscaping, driveways, parking lots, fences,
retaining walls, signs, sidewalks and parkways located in, on, or adjacent to
the Premises. Lessee, in keeping the Premises in good order, condition and
repair, shall exercise and perform good maintenance practices, specifically
including the procurement and maintenance of the service contracts required by
Paragraph 7.1(b) below. Lessee'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. Lessee shall, during the term of this Lease, keep the exterior
appearance of the Building in a first-class condition consistent with the
exterior appearance of other similar facilities of comparable age and size in
the vicinity, including, when necessary, the exterior repainting of the
Building.
(b) Service Contracts. Lessee shall, at Lessee's sole expense,
procure and maintain contracts, with copies to Lessor, in customary form and
substance for, and with Contractors specializing and experienced in the
maintenance of the following equipment and improvements. ("Basic Elements"), if
any, as and when installed on the Premises: (i) HVAC equipment, (ii) boiler, and
pressure vessels, (iii) life protection systems, (iv) landscaping and irrigation
systems, (v) tool covering and drains, and (vi) asphalt and parking lots, (vii)
clarifiers and (viii) any other equipment, if reasonably required by Lessor.
(c) Replacement. Subject to Lessee's indemnification of Lessor as set
forth in Paragraph 8.7 below, and without relieving Lessee of liability
resulting from Lessee's failure to exercise and perform good maintenance
practices, if the Basic Elements described in Paragraph 7.1(b) cannot be
repaired other than at a cost which is in excess of 50% of the cost of replacing
such Basic Elements, then such Basic Elements shall be replaced by Lessor, and
the cost thereof shall be prorated between the Parties and Lessee shall only be
obligated to pay, each month during the remainder of the term of this Lease, on
the date on which Base Rent is due, an amount equal to the product of
multiplying the cost of such replacement by a fraction, the numerator of which
is one, and the denominator of which is the number of months of the useful life
of such replacement as such useful life is specified pursuant to Federal income
tax regulations or guidelines for depreciation thereof (including interest on
the unamortized balance as is then commercially reasonable in the judgment of
Lessor's accountants), with Lessee reserving the right to prepay its obligation
at any time. see addendum
7.2 Lessor's Obligations. Subject to the provisions of Paragraphs 2.2
(Condition), 2.3 (Compliance), 9 (Damage or Destruction), 7.1 (Lessee's
Obligations and 55 and 14 (Condemnation), it is intended by the Parties hereto
that Lessor have no other obligation, in any manner whatsoever, to repair and
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maintain the Premises, or the equipment therein, all of which obligations are
intended to be that of the Lessee. It is the intention of the Parties that the
terms of this Lease govern the respective obligations of the Parties as to
maintenance and repair of the Premises, and they expressly waive the benefit of
any statute now or hereafter in effect to the extent it is inconsistent with the
terms of this Lease.
7.3. Utility Installations; Trade Fixtures; Alterations.
(a) Definitions; Consent Required. The term "Utility Installations"
refers to 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.
The term "Trade Fixtures" shall mean Lessee's machinery and equipment that can
be removed without doing material damage to the Premises. The term "Alterations"
shall mean any modification of the improvements, other than Utility
Installations of Trade Fixtures, whether by addition or deletion. "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 Paragraph 7.4(a). 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 to the interior of the
Premises (excluding the roof) without such consent but upon 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 the cumulative cost
thereof during this Lease as extended does not exceed $50,000 in any one year.
see addendum.
(b) 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 detailed plans. Consent shall be
deemed conditioned upon Lessee's: (i) acquiring all applicable governmental
permits, (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. Lessee shall
promptly upon completion furnish Lessor with as-built plans and specifications.
For work which costs an amount equal to the greater of one month's Base Rent,
Lessor may condition its consent upon Lessee providing a lien and completion
bond in an amount equal to one and one-half times the estimated cost of such
Alteration or Utility Installation and/or upon Lessee's posting an additional
Security Deposit with Lessor.
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(c) Indemnification. 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. If Lessee shall contest the validity of any such
lien, claim or demand, then Lessee shall, at its sole expense defend and protect
itself, Lessor and the Premises against the same and shall pay and satisfy any
such adverse judgment that may be rendered thereon before the enforcement
thereof. If Lessor shall require, Lessee shall furnish a surety bond in an
amount equal to one and one-half times the amount of such contested lien, claim
or demand, indemnifying Lessor against liability for the same. If Lessor elects
to participate in any such action, Lessee shall pay Lessor's attorneys' fees and
costs.
7.4. Ownership; Removal; Surrender; and Restoration.
(a) Ownership. Subject to Lessor's right to require removal or elect
ownership as hereinafter provided, all Alterations and Utility Installations
made by Lessee shall be the property of Lessee, but considered a part of the
Premises. Unless otherwise instructed per Paragraph 7.4(b) hereof, all Lessee
Owned Alterations and Utility Installations shall, at the expiration or
termination of this Lease, become the property of Lessor and be surrendered by
Lessee with the Premises.
(b) Removal. By delivery to Lessee of written notice from Lessor not
later than ninety (90) days prior to the end of the term of this Lease, Lessor
may require that any or all Lessee Owned Alterations or Utility lnstallations
for which Lessee has not obtained Lessor's prior consent be removed by the
expiration or termination of this Lease. 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. see addendum
(c) Surrender/Restoration. 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.
"Ordinary wear and tear" shall not include any damage or deterioration that
would have been prevented by good maintenance practice. Lessee shall repair any
damage occasioned by the installation, maintenance or removal of Trade Fixtures,
furnishings, and equipment as well as the removal of any storage tank installed
by or for Lessee, and the removal, replacement, or remediation of any soil,
material or groundwater contaminated by Lessee. Trade Fixtures shall remain the
property of
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Lessee and shall be removed by Lessee. The failure by Lessee to timely vacate
the Premises pursuant to this Paragraph 7.4(c) without the express written
consent of Lessor shall constitute a holdover under the provisions of Paragraph
26 below.
8. Insurance; Indemnity.
8.1. Payment For Insurance. Lessee shall pay for all insurance required
under Paragraph 8 except to the extent of the cost attributable to liability
insurance carried by Lessor under Paragraph 8.2(b) in excess of $2,000,000 per
occurrence. Premiums for policy periods commencing prior to or extending beyond
the Lease term shall be prorated to correspond to the Lease term. Payment shall
be made by Lessee to Lessor within ten (10) days following receipt of an
invoice.
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 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 Paragraph 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, Improvements and Rental Value.
(a) 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 and to any Lender insuring loss or damage to the Premises. The amount of
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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, Lessee Owned
Alterations and Utility Installations, Trade Fixtures, and Lessee's personal
property shall be insured by Lessee under Paragraph 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
(except the perils of flood and/or earthquake unless required by a Lender),
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 not
exceed $1,000 per occurrence, and Lessee shall be liable for such deductible
amount in the event of an Insured Loss.
(b) Rental Value. The Insuring Party shall obtain and keep in force a
policy or policies in the name of Lessor with loss payable to Lessor and any
Lender, insuring the loss of the full Rent for one (1) year. Said insurance
shall provide that in the event the Lease is terminated by reason of an insured
loss, the period of indemnity for such coverage shall be extended beyond the
date of the completion of repairs or replacement of the Premises, to provide
for, one full year's loss of Rent from the date of any such loss. Said insurance
shall contain an agreed valuation provision in lieu of any coinsurance clause,
and the amount of coverage shall be adjusted annually to reflect the projected
Rent otherwise payable by Lessee, for the next twelve (12) month period. Lessee
shall be liable for any deductible amount in the event of such loss.
8.4. Lessee's Property/Business Interruption Insurance.
(a) Property Damage. Lessee shall obtain and maintain insurance
coverage on all of Lessee's personal property, Trade Fixtures, and Lessee Owned
Alterations and Utility Installations. Such insurance shall be full replacement
cost coverage with a deductible of not to exceed $1,000 per occurrence. The
proceeds from any such insurance shall be used by Lessee for the replacement of
personal property, Trade Fixtures and Lessee Owned Alterations and Utility
Installations. Lessee shall provide Lessor with written evidence that such
insurance is in force.
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(b) Business Interruption. If reasonably available, and if Lessor
requests Lessee to do so in writing, Lessee shall obtain and maintain loss of
income and extra expense insurance in amounts as will reimburse Lessee for
direct or indirect loss of earnings attributable to all perils commonly insured
against by prudent lessees in the business of Lessee or attributable to
prevention of access to the Premises as a result of such perils.
(c) No Representation of Adequate Coverage. Lessor makes no
representation that the limits or forms of coverage of insurance specified
herein are adequate to cover Lessee's property, business operations or
obligations under this Lease.
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 Start Date, deliver to Lessor
certified copies of policies of such insurance or certificates evidencing the
existence and amounts of the required insurance. No such policy shall be
cancelable or subject to modification except after thirty (30) days prior
written notice to Lessor. Lessee shall, at least thirty (30) days prior to the
expiration of such policies, furnish Lessor with evidence of renewals or
"insurance binders" evidencing renewal thereof, or Lessor may order such
insurance and charge the cost thereof to Lessee, which amount shall be payable
by Lessee to Lessor upon demand. Such policies shall be for a term of at least
one year, or the length of the remaining term of this Lease, whichever is less.
If either Party shall fail to procure and maintain the insurance required to be
carried by it, the other Party may, but shall not be required to, procure and
maintain the same.
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 subrogation that such companies may have against Lessor or Lessee,
as the case may be.
8.7. Indemnity. Except for Lessees sole negligence, Lessee shall indemnify,
protect, defend and hold harmless the Premises, Lessor and its agents, Lessors
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master or ground lessor, partners and Lenders, from and against any and all
claims, loss of rents and/or damages, liens, judgments, penalties, attorneys'
and consultants' fees, expenses and/or liabilities arising out of, involving, or
in connection with, the use and/or occupancy of the Premises by Lessee. If any
action or proceeding is brought against Lessor by reason of any of the foregoing
matters, Lessee shall upon notice defend the same at Lessee's expense by counsel
reasonably satisfactory to Lessor and Lessor shall cooperate with Lessee in such
defense. Lessor need not have first paid any such claim in order to be defended
or indemnified.
8.8. Exemption of Lessor from Liability. 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. Lessor shall not be liable for any
damages arising from any act or neglect of any other tenant of Lessor.
Notwithstanding Lessor's negligence or breach of this Lease, Lessor shall under
no circumstances be liable for injury to Lessee's business or for any loss of
income or profit therefrom.
9. Damage or Destruction.
9.1. Definitions.
(a) "Premises Partial Damage" shall mean damage or destruction to the
improvements on the Premises, other than Lessee Owned Alterations and Utility
Installations, which can reasonably be repaired in six (6) months or less from
the date of the damage or destruction. Lessor shall notify Lessee in writing
within thirty (30) days from the date of the damage or destruction as to whether
or not damage is Partial or Total.
(b) "Premises Total Destruction" shall mean damage or destruction to
the Premises, other than Lessee Owned Alterations and Utility Installations,
which cannot reasonably be repaired in six (6) months or less from the date of
the damage or destruction. Lessor shall notify Lessee in writing within thirty
(30) days from the date of the damage or destruction as to whether or not the
damage is Partial or Total.
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(c) "Insured Loss" shall mean damage or destruction to improvements on
the Premises, other than Lessee Owned Alterations and Utility Installations and
Trade Fixtures, which was caused by an event required to be covered by the
insurance described in Paragraph 8.3(a), irrespective of any deductible amounts
or coverage limits involved.
(d) "Replacement Cost" shall mean the cost to repair or rebuild the
improvements owned by Lessor at the time of the occurrence to their condition
existing immediately prior thereto, including demolition, debris removal and
upgrading required by the operation of Applicable Requirements, and without
deduction for depreciation.
(e) "Hazardous Substance Condition" shall mean the occurrence or
discovery of a condition involving the presence of, or a contamination by, a
Hazardous Substance as defined in Paragraph 6.2(a), in, on, or under the
Premises.
9.2. Partial Damage - Insured Loss. If a Premises Partial Damage that is an
Insured Loss occurs, then Lessor shall, at Lessor's expense, repair such damage
(but not Lessee's Trade Fixtures or Lessee Owned Alterations and Utility
Installations) as soon as reasonably possible and this Lease shall continue in
full force and effect; provided, however, that Lessee shall, at Lessor's
election, make the repair of any damage or destruction the total cost to repair
of which is $10,000 or less, and, in such event, Lessor shall make any
applicable insurance proceeds available to Lessee on a reasonable basis for that
purpose. Notwithstanding the foregoing, if the required insurance was not in
force or the insurance proceeds are not sufficient to effect such repair, the
Insuring Party shall promptly contribute the shortage in proceeds (except as to
the deductible which is Lessee's responsibility) as and when required to
complete said repairs. In the event, however, such shortage was due to the fact
that, by reason of the unique nature of the improvements, full replacement cost
insurance coverage was not commercially reasonable and available, Lessor shall
have no obligation to pay for the shortage in insurance proceeds or to fully
restore the unique aspects of the Premises unless Lessee provides Lessor with
the funds to cover same, or adequate assurance thereof, within ten (10) days
following receipt of written notice of such shortage and request therefor. If
Lessor receives said funds or adequate assurance thereof within said ten (10)
day period, the party responsible for making the repairs shall complete them as
soon as reasonably possible and this Lease shall remain in full force and
effect. If such funds or assurance are not received, Lessor may nevertheless
elect by written notice to Lessee within ten (10) days thereafter to: (i) make
such restoration and repair as is commercially reasonable with Lessor paying any
shortage in proceeds, in which case this Lease shall remain in full force and
effect, or have this Lease terminate thirty (30) days thereafter.
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Lessee shall not be entitled to reimbursement of any funds contributed by Lessee
to repair any such damage or destruction. Premises Partial Damage due to flood
or earthquake shall be subject to Paragraph 9.3, notwithstanding that there may
be some insurance coverage, but the net proceeds of any such insurance shall be
made available for the repairs if made by either Party.
9.3. Partial Damage - Uninsured Loss. If a Premises Partial Damage that is
not an Insured Loss occurs, unless caused by a negligent willful act of Lessee
(in which event Lessee shall make the repairs at Lessee's expense), Lessor may
either: (i) repair such damage as soon as reasonably possible at Lessor's
expense, in which event this Lease shall continue in full force and effect, or
(ii) terminate this Lease by giving written notice to Lessee within thirty (30)
days after receipt by Lessor of knowledge of the occurrence of such damage. Such
termination shall be effective sixty (60) days following the date of such
notice. In the event Lessor elects to terminate this Lease. Lessee shall have
the right within ten (10) days after receipt of the termination notice to give
written notice to Lessor of Lessee's commitment to pay for the repair of such
damage without reimbursement from Lessor. Lessee shall provide Lessor with said
funds or satisfactory assurance thereof within thirty (30) days after making
such commitment. In such event this Lease shall continue in full force and
effect, and Lessor shall proceed to make such repairs as, soon as reasonably
possible after the required funds are available. It Lessee does not make the
required commitment, this Lease shall terminate as of the date specified in the
termination notice.
9.4. Total Destruction. Notwithstanding any other provision hereof, if a
Premises Total Destruction occurs, this Lease shall terminate sixty (60) days
following such Destruction.
9.5. Damage Near End of Term. It at any time during the last six (6) months
of this Lease there is damage for which the cost to repair exceeds one (1)
month's Base Rent, whether or not an Insured Loss, Lessor may terminate this
Lease effective sixty (60) days following the date of occurrence of such damage
by giving a written termination notice to Lessee within thirty (30) days after
the date of occurrence of such damage. Notwithstanding the foregoing, if Lessee
at that time has an exercisable option to extend this Lease or to purchase the
Premises, then Lessee may preserve this Lease by, (a) exercising such option and
(b) providing Lessor with any shortage in insurance proceeds (or adequate
assurance thereof) needed to make the repairs on or before the earlier of (i)
the date which is ten days after Lessee's receipt of Lessor's written notice
purporting to terminate this Lease, or (ii) the day prior to the date upon which
such option expires. If Lessee duly exercises such option during such period and
provides Lessor with funds (or adequate assurance thereof) to cover any shortage
in insurance proceeds, Lessor shall, at Lessor's commercially reasonable
expense,
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repair such damage as soon as reasonably possible and this Lease shall continue
in full force and effect. If Lessee fails to exercise such option and provide
such funds or assurance during such period, then this Lease shall terminate on
the date specified in the termination notice and Lessee's option shall be
extinguished.
9.6. Abatement of Rent; Lessee's Remedies.
(a) Abatement. See addendum.
(b) Remedies. If Lessor shall be obligated to repair or restore the
Premises and does not commence, in a substantial and meaningful way, such repair
or restoration within ninety (90) days after such obligation shall accrue,
Lessee may, at any time prior to the commencement of such repair or restoration,
give written notice to Lessor and to any Lenders of which Lessee has actual
notice, of Lessee's election to terminate this Lease on a date not less than
sixty (60) days following the giving of such notice. If Lessee gives such notice
and such repair or restoration is not commenced within thirty (30) days
thereafter, this Lease shall terminate as of the date specified in said notice.
If the repair or restoration is commenced within said thirty (30) days, this
Lease shall continue in full force and effect. "Commence" shall mean either the
unconditional authorization of the preparation of the required plans, or the
beginning of the actual work on the Premises, whichever first occurs.
9.7. Termination-Advance Payments. Upon termination of this Lease pursuant
to Paragraph 6.2(g) or Paragraph 9. an equitable adjustment shall be made
concerning advance Base Rent and any other advance payments made by Lessee to
Lessor. Lessor shall, in addition, return to Lessee so much of Lessee's Security
Deposit as has not been, or is not then required to be, used by Lessor.
9.8. Waive Statutes. Lessor and Lessee agree that the terms of this Lease
shall govern the effect of any damage to or destruction of the Premises with
respect to the termination of this Lease and hereby waive the provisions of any
present or future statute to the extent inconsistent herewith.
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. Lessor's right to other income therefrom, and/or Lessor's business
of leasing, by-any authority having the direct or Indirect power to tax and
where the funds are
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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.
see addendum
10.2.
(a) Payment of Taxes. Lessee shall pay the Real Property Taxes
applicable to the Premises during the term of this Lease. Subject to Paragraph
10.2(b), all such payments shall be made at least ten (10) days prior to any
delinquency date. Lessee shall promptly furnish Lessor with satisfactory
evidence that such taxes have been paid. If any such taxes shall cover any
period of time prior to or after the expiration or termination of this Lease,
Lessee's share of such taxes shall be prorated to cover only that portion of the
tax ▇▇▇▇ applicable to the period that this Lease is in effect, and Lessor shall
reimburse Lessee for any overpayment. If Lessee shall fail to pay any required
Real Property Taxes, Lessor shall have the right to pay the same, and Lessee
shall reimburse Lessor therefor upon demand.
(b) Advance Payment. In the event Lessee incurs a late charge on any
Rent payment, Lessor may, at Lessors option, estimate the current Real Property
Taxes, and require that such taxes be paid in advance to Lessor by Lessee,
either: (i) in a lump sum amount equal to the installment due, at least twenty
(20) days prior to the applicable delinquency date, or (ii) monthly in advance
with the payment of the Base Rent. If Lessor elects to require payment monthly
in advance, the monthly payment shall be an amount equal to the amount of the
estimated installment of taxes divided by the number of months remaining before
the month in which said installment becomes delinquent. When the actual amount
of the applicable tax ▇▇▇▇ is known, the amount of such equal monthly advance
payments shall be adjusted as required to provide the funds needed to pay the
applicable taxes. If the amount collected by Lessor is insufficient to pay such
Real Property Taxes when due, Lessee shall pay Lessor, upon demand, such
additional sums as are necessary to pay such obligations. All moneys paid to
Lessor under this Paragraph may be intermingled with other moneys of Lessor and
shall not bear interest. In the event of a Breach by Lessee in the performance
of its obligations under this Lease, then any balance of funds paid to Lessor
under the provisions of this Paragraph may at the option of Lessor, be treated
as an additional Security Deposit.
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10.3. Joint Assessment. If the Premises are not separately assessed,
Lessee's liability shall be an equitable proportion of the Real Property Taxes
for all of the land and improvements included within the tax parcel assessed,
such proportion to be conclusively determined by Lessor from the respective
valuations assigned in the assessor's work sheets or such other information as
may be reasonably available.
10.4. Personal Property Taxes. Lessee shall pay, prior to delinquency, all
taxes assessed against and levied upon Lessee Owned Alterations, Utility
Installations, Trade Fixtures, furnishings, equipment and all personal property
of Lessee. When possible, Lessee shall cause such property to be assessed and
billed separately from the real property of Lessor. If any of Lessee's said
personal property shall be assessed with Lessor's real property, Lessee shall
pay Lessor the taxes attributable to Lessee's property within ten (10) 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.
(a) 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.
(e) Lessee's remedy for any breach of Paragraph 12.1 by Lessor shall
be limited to compensatory damages and/or injunctive relief. see addendum
12.2. Terms and Conditions Applicable to Assignment and Subletting.
(a) Regardless of Lessors 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, unless (see Paragraph 57)
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(b) 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 Lessees Default or Breach.
(c) Lessor's consent to any assignment or subletting shall not
constitute a consent to any subsequent assignment or subletting.
(d) In the event of any Default or Breach by Lessee, Lessor may
proceed directly against Lessee, any Guarantors or anyone else responsible for
the performance of Lessee's obligations under this Lease, including any assignee
or sublessee, without first exhausting Lessor's remedies against any other
person or entity responsible therefore to Lessor, or any security held by
Lessor.
(e) 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, together with a fee of $1,000 as
consideration for Lessor's considering and processing said request. Lessee
agrees to provide Lessor with such other or additional information and/or
documentation as may be reasonably requested.
(f) Any assignee of, or sublessee under, this Lease shall, by reason
of accepting such assignment or entering in 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. see addendum
12.3. Additional Terms and Conditions Applicable to Subletting. The
following terms and conditions shall apply to any subletting by Lessee of all or
any part of the Premises and shall be deemed included in all subleases under
this Lease whether or not expressly incorporated therein:
(a) Lessee hereby assigns and transfers to Lessor all of Lessee's
interest in all Rent payable on any sublease, and Lessor may collect such Rent
and apply same toward Lessee's obligations under this Lease; provided, however,
that until a Breach shall occur in the performance of Lessee's obligations,
Lessee may collect said Rent. Lessor shall not, by reason of the foregoing or
any assignment of such sublease, nor by reason of the collection of Rent, be
deemed liable to the
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sublessee for any failure of Lessee to perform and comply with any of Lessee's
obligations to such sublessee. Lessee hereby irrevocably authorizes and directs
any such sublessee, upon receipt of a written notice from Lessor stating that a
Breach exists in the performance of Lessee's obligations under this Lease, to
pay to Lessor all Rent due and to become due under the sublease. Sublessee shall
rely upon any such notice from Lessor and shall pay all Rents to Lessor without
any obligation or right to inquire as to whether such Breach exists,
notwithstanding any claim from Lessee to the contrary.
(b) In the event of a Breach by Lessee, Lessor may, at its option,
require sublessee to attorn to Lessor, in which event Lessor shall undertake the
obligations of the sublessor under such sublease from the time of the exercise
of said option to the expiration of such sublease; provided, however, Lessor
shall not be liable for any prepaid rents or security deposit paid by such
sublessee to such sublessor or for any prior Defaults or Breaches of such
sublessor.
(c) Any matter requiring the consent of the sublessor under a
sublease shall also require the consent of Lessor.
(d) No sublessee shall further assign or sublet all or any part of
the Premises without Lessor's prior written consent.
(e) Lessor shall deliver a copy of any notice of Default or Breach by
Lessee to the sublessee, who shall have the right to cure the Default of Lessee
within the grace period, if any, specified in such notice. The sublessee shall
have a right of reimbursement and offset from and against Lessee for any such
Defaults cured by the sublessee. see addendum
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 abandonment of the Premises: or the vacating of the Premises
without providing a commercially reasonable level of security, or where the
coverage of the property insurance described in Paragraph 8.3 is jeopardized as
a result thereof, or without providing reasonable assurances to minimize
potential vandalism.
(b) The failure of Lessee to make any payment of Rent or any other
monetary payment required to be made by Lessee hereunder, whether to Lessor or
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to a third party, when due, to provide reasonable evidence of insurance or
surety bond, or to fulfill any obligation under this Lease which endangers or
threatens life or property where such failure continues for a period of three
(3) business days following written notice to Lessee.
(c) The failure by Lessee to provide (i) reasonable written evidence
of compliance with Applicable Requirements, (ii) the service contracts, (iii)
the rescission of an unauthorized assignment or subletting, (iv) a Tenancy
Statement, (v) a requested subordination, (vi) evidence concerning any guaranty
and/or Guarantor, (vii) any document requested under Paragraph 42 (easements),
or (viii) any other documentation or information which Lessor may reasonably
require of Lessee under the terms of, this Lease, where any such failure
continues for a period of ten (10) days following written notice to Lessee.
(d) A Default by Lessee as to the terms, covenants, conditions or
provisions of this Lease, or of the rules adopted under Paragraph 40 hereof,
other than those described in subparagraphs 13.1(a), (b) or (c), above, where
such Default continues for a period of thirty (30) days after written notice;
provided, however, that if the nature of Lessee's Default is such that more than
thirty (30) days are reasonably required for its cure, then it shall not be
deemed to be a Breach if Lessee commences such cure within said thirty (30) day
period and thereafter diligently prosecutes such cure to completion.
(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. (S) 101 or any successor statute
thereto (unless, in the case of a petition filed against Lessee, the same is
dismissed within sixty (60) 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 thirty (30) 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 thirty (30) days; provided, however, in the event that any
provision of this subparagraph (a) is contrary to any applicable law, such
provision shall be of no force or effect, and not affect the validity of the
remaining provisions.
(f) The discovery that any financial statement of Lessee of any
Guarantor given to Lessor was materially false.
(g) Upon a default by Lessee, if any of the following are in effect,
if the performance of Lessee's obligations under this Lease is guaranteed: (i)
the death of a Guarantor, (ii) the termination of a Guarantor's liability with
respect to
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this Leesee other than in accordance with the terms of such guaranty, (iii) a
Guarantor's becoming insolvent or the subject of a bankruptcy filing, (iv) a
Guarantor's refusal to honor the guaranty, or (v) a Guarantor's breach of its
guaranty obligation on an anticipatory basis, and Lessee's failure, within sixty
(60) days following written notice of any such event, to provide written
alternative assurance or security, which, when coupled with the then existing
resources of Lessee, equals or exceeds the combined financial resources of
Lessee and the Guarantors that existed at the time of execution of this Lease.
13.2. Remedies. If Lessee fails to perform any of its affirmative duties or
obligations, within ten (10) days after written notice (or in case of an
emergency, without notice), Lessor may, at its option, perform such duty or
obligation on Lessee's behalf, including but not limited to the obtaining of
reasonably required bonds, insurance policies, or governmental licenses, permits
or approvals. The costs and expenses of any such performance by Lessor shall be
due and payable by Lessee upon receipt of invoice therefor. If any check given
to Lessor by Lessee shall not be honored by the bank upon which it is drawn,
Lessor, at its option, may require all future payments to be made by Lessee to
be by cashier's check. 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:
(a) 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. In such event Lessor shall be
entitled to recover from Lessee: (i) the unpaid Rent which had been earned at
the time of termination; (ii) the worth at the time of award of the amount by
which the unpaid rent which would have been earned after termination until the
time of award exceeds the amount of such rental loss that 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) any other amount necessary to compensate Lessor for
all the detriment proximately caused by the Lessee's failure to perform its
obligations under this Lease or which in the ordinary course of things would be
likely to result therefrom, including but not limited to the cost of recovering
possession of the Premises, expenses of reletting, including necessary
renovation and alteration of the Premises, reasonable attorneys' fees, and that
portion of any leasing commission paid by Lessor in connection with this Lease
applicable to the unexpired term of this Lease. The worth at the time of award
of the amount referred to in provision (iii) of the immediately preceding
sentence shall be computed by discounting such amount at the discount rate of
the Federal Reserve Bank of the District within which the
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Premises are located at the time of award plus one percent (1%). Efforts by
Lessor to mitigate damages caused by Lessee's Breach of this Lease shall not
waive Lessor's right to recover damages under Paragraph 12. If termination of
this Lease is obtained through the provisional remedy of unlawful detainer,
Lessor shall have the right to recover in such proceeding any unpaid Rent and
damages as are recoverable therein, or Lessor may reserve the right to recover
all or any part thereof in a separate suit. If a notice and grace period
required under Paragraph 13.1 was not previously given, a notice to pay rent or
quit, or to perform or quit given to Lessee under the unlawful detainer statute
shall also constitute the notice required by Paragraph 13.1. In such case, the
applicable grace period required by Paragraph 13.1 and the unlawful detainer
statute shall run concurrently, and the failure of Lessee to cure the Default
within the greater of the two such grace periods shall constitute both an
unlawful detainer and a Breach of this Lease entitling Lessor to the remedies
provided for in this Lease and/or by said statute.
(b) 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.
(c) 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. Inducement Recapture. Any agreement for free or abated rent or other
charges, or for the giving or paying by Lessor to or for Lessee of any cash or
other bonus, inducement or consideration for Lessee's entering into this Lease,
all of which concessions are hereinafter referred to as "Inducement Provisions,"
shall be deemed conditioned upon Lessee's full and faithful performance of all
of the terms, covenants and conditions of this Lease. Upon Breach of this Lease
by Lessee, any such Inducement Provision shall automatically be deemed deleted
from this Lease and of no further force or effect, and any rent, other charge,
bonus, Inducement or consideration theretofore abated, given or paid by Lessor
under such an Inducement Provision shall be immediately due and payable by
Lessee to Lessor, notwithstanding any subsequent cure of said Breach by Lessee.
The acceptance by Lessor of rent or the cure of the Breach which initiated the
operation of this paragraph shall not be deemed a waiver by Lessor of the
provisions of this paragraph unless specifically so stated in writing by Lessor
at the time of such acceptance.
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13.4 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) days after such amount shall be
due, then without any requirement for notice to Lessee, Lessee shall pay to
Lessor a one-time late charge equal to six percent (6%) of each such overdue
amount. 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.
In the event that a late charge is payable hereunder, whether or not collected,
for three (3) consecutive installments of Base Rent, then notwithstanding any
provision of this Lease, to the contrary, Base Rent shall, at Lessor's option,
become due and payable quarterly in advance.
13.5 Interest. Any monetary payment due Lessor hereunder, other than late
charges, not received by Lessor within thirty (30) days following the date on
which it was due, shall bear interest from the thirty-first (31st) day after it
was due. The interest ("Interest") charged shall be equal to the prime rate
charged by the largest state chartered bank in the state in which the Premises
are located plus 4%, but shall not exceed the maximum rate allowed by law.
Interest is payable in addition to the potential late charge provided for in
Paragraph 13.4.
13.6 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 Paragraph, 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 it having commenced said cure they do not diligently
pursue it to
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completion, then Lessee may elect to cure said breach at Lessee's expense and
offset from Rent an amount equal to the greater of one month's Base Rent or the
Security Deposit, and to pay an excess of such expense under protest, reserving
Lessee's right to reimbursement from Lessor. Lessee shall document the cost of
said cure and supply said documentation to Lessor.
14. Condemnation. If the Premises or any 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, it more than ten percent (10%) of any building, or more than
twenty-five percent (25%) of the land area not occupied by any building, is
taken by Condemnation, Lessee may, at Lessee's option, to be exercised in
writing within ten (10) days after Lessor shall have given Lessee written notice
of such taking (or in the absence of such notice, within ten (10) days after the
condemning authority shall 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 Base 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 household, the value of the part
taken, or for severance damages; provided, however, that Lessee shall be
entitled to any compensation for Lessor's relocation expenses, loss of business
goodwill and/or Trade Fixtures, 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.
15. Brokers' Fee.
15.1 Additional Commission. In addition to the payments owed pursuant to
Paragraph 1.10 above, and unless Lessor and the Brokers otherwise agree in
writing, Lessor agrees that: (a) if Lessee exercises any Option, (b) if Lessee
acquires any rights to the Premises or other premises owned try Lessor and
located within the same Project, if any, within which the Premises is located,
(c) if Lessee remains in possession of the Premises, with the consent of Lessor,
after the expiration of this Lease, or (d) if Base Rent is increased, whether by
agreement or operation of an escalation clause herein, then, Lessor shall pay
Brokers a fee in
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accordance with the schedule of said Brokers in effect at the time of the
execution of this Lease.
15.2 Assumption of Obligations. Any buyer or transferee of Lessor's
interest in this Lease shall be deemed to have assumed Lessor's obligation
hereunder. Each Broker shall be a third party beneficiary of the provisions of
Paragraphs 1.10, 15, 22 and 31. If Lessor fails to pay to a Broker any amounts
due as and for commissions pertaining to this Lease when due, than such amounts
shall accrue Interest. In addition, if Lessor fails to pay any amounts to
Lessee's Broker when due, Lessee's Broker may send written notice to Lessor and
Lessee of such failure and if Lessor fails to pay such amounts within ten (10)
days after said-notice, Lessee shall pay said monies to its Broker and offset
such amounts against Rent. In addition, Lessee's Broker shall be deemed to be a
third party beneficiary of any commission agreement entered into by and/or
between Lessor and Lessor's Broker.
15.3 Representations and Indemnities of Broker Relationships. Lessee and
Lessor each represent and warrant to the other that it has had no dealings with
any person, firm, broker or finder (other than the Brokers, if any) in
connection with this Lease, and that no one other than said named Brokers is
entitled to any commission or finder's fee in connection herewith. Lessee and
Lessor do each hereby agree to indemnify, protect, defend and hold the other
harmless from and against liability for compensation or charges which may be
claimed by any such unnamed broker, finder or other similar party by reason of
any dealings or actions of the indemnifying Party, including any costs,
expenses, attorneys' fees reasonably incurred with respect thereto.
16. Tenancy Statement/Estoppel Certificate.
16.1 Each Party (as "Responding Party") shall within ten (10) days after
written notice from the other Party (the "Requesting Party") execute,
acknowledge and deliver to the Requesting Party an estoppel certificate in
writing, in form similar to the then most current "Tenancy Statement" 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.
16.2 If Lessor desires to finance, refinance, or sell the Premises, or any
part thereof, Lessee and all Guarantors shall deliver to any potential lender or
purchaser designated by Lessor such financial statements as may be reasonably
required by such lender or purchaser, including but not limited to Lessee's
financial statements for the past three (3) years. All such financial statements
shall be
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received by Lessor and such lender or purchaser in confidence and shall be used
only for the purposes herein set forth.
17. Definition of Lessor. The term "Lessor" as used herein shall mean the owner
or owners at the time in question of the fee title to the Premises, or, if this
is a sublease, of the Lessee's interest in the prior lease. In the event of a
transfer of Lessor's title or interest in the Premises or this Lease, Lessor
shall deliver to the transferee or assignee (in cash or by credit) any unused
Security Deposit held by Lessor. Except as provided in Paragraph 15, upon such
transfer or assignment and delivery of the Security Deposit, as aforesaid, 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.
Subject to the foregoing, the obligations and/or covenants in this Lease to be
performed by the Lessor shall be binding only upon the Lessor as hereinabove
defined. Notwithstanding the above, the original Lessor under this Lease, and
all subsequent holders of the Lessors interest in this Lease shall remain liable
and responsible with regard to the potential duties and liabilities of Lessor
pertaining to Hazardous Substances as outlined in Paragraph 6 above.
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 shall mean and refer to calendar days.
20. Limitation on Liability. Except with respect to Lessor's fraud, gross
negligence or willful misconduct, 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; Broker Disclaimer. This Lease contains all
agreements between the Parties with respect to any mailer 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
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and financial responsibility of the other Party to this Lease and as to the
nature, quality and character of the Premises. Brokers have no responsibility
with respect thereto or with respect to any default or breach hereof by either
Party. The liability (including court costs and Attorneys' fees), of any Broker
with respect to negotiation, execution, delivery or performance by either Lessor
or Lessee under this Lease or any amendment or modification hereto shall be
limited to an amount up to the fee received by such Broker pursuant to this
Lease; provided, however, that the foregoing limitation on each Broker's
liability shall not be applicable to any gross negligence or willful misconduct
of such Broker.
23. Notices.
23.1 Notice Requirements. All notices required or permitted by this Lease
shall be in writing and may be delivered in person (by hand or by courier) or
may be sent by regular, certified or registered mail or U.S. Postal Service
Express Mail, with postage prepaid, or by facsimile transmission, and shall be
deemed sufficiently given if served in a manner specified in this Paragraph 23.
The addresses noted adjacent to a Party's signature on this Lease shall be that
Party's address for delivery or mailing of notices. Either Party may by written
notice to the other specify a different address for notice, except that upon
Lessee's taking possession of the Premises, the Premises shall constitute
Lessee's address for notice. A copy of all notices to Lessor shall be
concurrently transmitted to such party or parties at such addresses as Lessor
may from time to lime hereafter designate in writing.
23.2 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 forty-eight (48) hours after
the same is addressed as required herein and mailed with postage prepaid.
Notices delivered by United States Express Mail or overnight courier that
guarantee next day delivery shall be deemed given twenty-four (24) hours after
delivery of the same to the Postal Service or courier. Notices transmitted by
facsimile transmission or similar means shall be deemed delivered upon telephone
confirmation of receipt, provided a copy is also delivered via delivery or mail.
If notice is received on a Saturday, Sunday or legal holiday, it shall be deemed
received on the next business day.
24. Waivers. No waiver by Lessor of the Default or Breach of any term, covenant
or condition hereof by Lessee, shall be deemed a waiver of any other term,
covenant or condition hereof, or of any subsequent Default or Breach by Lessee
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 tender unnecessary
the obtaining of
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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. 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 condition 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. Recording. Either Lessor or Lessee shall, upon request of the other,
execute, acknowledge and deliver to the other a short form memorandum of this
Lease for recording purposes. The Party requesting remediation shall be
responsible for payment of any fees applicable thereto.
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 twenty five percent (125%) of the Base Rent applicable during the
month immediately preceding the expiration or termination. 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. Covenants and Conditions; Construction of Agreement. All provisions of
this Lease to be observed or performed by Lessee are both covenants and
conditions. 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.
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. 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:
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30.1 Subordination. This Lease and any Option granted hereby 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. Lessee
agrees that the holders of any such Security Devices shall have no liability or
obligation to perform any of the obligations of Lessor under this Lease. Any
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, this
Lease and such Options shall be deemed prior to such Security Device,
notwithstanding the relative dates of the documentation or recordation thereof.
30.2 Attornment. Subject to the non-disturbance provisions of
Paragraph 30.3, 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, and that in the event of such foreclosure, such new owner shall not: (i)
be liable for any act or omission of any prior lessor or with respect to events
occurring prior to acquisition of ownership; (ii) be subject to any offsets or
defenses which Lessee might have against any prior lessor, or (iii) be bound by
prepayment of more than one (1) month's rent.
30.3 Non-Disturbance. With respect to Security Devices entered into by
Lessor after the execution of this Lease, Lessee's subordination of this Lease
shall be subject to receiving a commercially reasonable non-disturbance
agreement (a "Non-Disturbance Agreement") from the Lender which Non-Disturbance
Agreement provides 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. Further, within sixty (60) days after the execution of this Lease,
Lessor shall use its commercially reasonable efforts to obtain a Non-Disturbance
Agreement from the holder of any pre-existing Security Device which is secured
by the Premises. In the event that Lessor is unable to provide the Non-
Disturbance Agreement within said sixty (60) days, then Lessee may, at Lessee's
option, directly contact Lessor's lender and attempt to negotiate for the
execution and delivery of a Non-Disturbance Agreement.
30.4 Self-Executing. The agreements contained in this Paragraph 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 writings as may be reasonably required to separately document any
subordination, attornment and/or Non-Disturbance Agreement provided for herein.
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31. Attorneys' Fees. It any Party or Broker brings an action or proceeding to
enforce the terms hereof or 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. In addition, Lessor 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.
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 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 at any time place on the Premises 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 at any time place on or
about the Premises any ordinary "For Sublease" sign. see addendum
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. Signs. Except for ordinary "For Sublease" signs, Lessee shall not place any
sign upon the Premises without Lessor's prior written consent. All signs must
comply with all Applicable Requirements.
35. Termination; Merger. Unless specifically stated otherwise in writing by
Lessor, the voluntary or other surrender of this Lease by Lessee, the mutual
termination or cancellation hereof, or a termination hereof by Lessor for Breach
by Lessee, shall automatically terminate any sublease or lesser estate in the
Premises; provided, however, that Lessor may elect to continue any one or all
existing subtenancies. Lessor's failure within ten (10) days following any such
event to elect to the
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contrary by written notice to the holder of any such lesser interest, shall
constitute Lessor's election to have such event constitute the termination of
such interest.
36. 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 withhold or delayed. Lessor's actual reasonable costs
and expenses (including but not limited to architects', attorneys', engineers'
and other consultants' fees) incurred in the consideration of, or response to, a
request by Lessee for any Lessor consent, including but not limited to consents
to an assignment, a subletting or the presence or use of a Hazardous Substance,
shall be paid by Lessee upon receipt of an invoice and supporting documentation
therefor. Lessor's consent to any act, assignment or subletting shall not
constitute an acknowledgment that no Default or Breach by Lessee of this Lease
exists, nor shall such consent be deemed a waiver of any then existing Default
or Breach, except as may be otherwise specifically stated in writing by Lessor
at the time of such consent. The failure to specify herein any particular
condition to Lessor's consent shall not preclude the imposition by Lessor at the
time of consent of such further or other conditions as are then reasonable with
reference to the particular matter for which consent is being given. In the
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.
37. Guarantor.
37.1 Execution. The Guarantors, if any, shall each execute a guaranty in
the form most recently published by the American Industrial Real Estate
Association, and each such Guarantor shall have the same obligations as Lessee
under this Lease.
37.2 Default. It shall constitute a Default of the Lessee it any Guarantor
fails or refuses, upon request to provide: (a) evidence of the execution of the
guaranty, including the authority of the party signing on Guarantees behalf to
obligate Guarantor, and in the case of a corporate Guarantor, a certified copy
of a resolution of its board of directors authorizing the making of such
guaranty, (b) current financial statements, (c) a Tenancy Statement, or (d)
written confirmation that the guaranty is still in effect.
38. 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.
-35-
39. Options.
39.1 Definition. "Option" shall mean: (a) the right to extend the term of
or renew this Lease or to extend or renew any lease that Lessor has on other
property of Lessor, (b) the right of first refusal or first offer to lease
either the Premises or other property of Lessor; (c) the right to purchase or
the right of first refusal to purchase the Premises or other property of Lessor.
39.2 Options Personal To Original Lessee. Each Option granted to Lessee in
this Lease is personal to the original Lessee, and cannot be assigned or
exercised by anyone other than said original Lessee and only while the original
Lessee is in full possession of the Premises and, if requested by Lessor, with
Lessee certifying that Lessee has no intention of thereafter assigning or
subletting. see addendum
39.3 Multiple Options. In the event that Lessee has any multiple Options
to extend or renew this Lease, a later Option cannot be exercised unless the
prior Options have been validly exercised.
39.4 Effect of Default on Options.
(a) Lessee shall have no right to exercise an Option; (i) during the
period commencing with the giving of any notice of Default and continuing until
said Default is cured, (ii) during the period of time any Rent is unpaid
(without regard to whether notice thereof is given Lessee), (iii) during the
time Lessee is in Breach of this Lease, or (iv) in the event that Lessee has
been given three (3) or more notices of Default, whether or not the Defaults are
cured, during the twelve (12) month period immediately preceding the exercise of
the Option.
(b) The period of time within which an Option may be exercised shall
not be extended or enlarged by reason of Lessee's inability to exercise an
Option because of the provisions of Paragraph 39.4(a).
(c) An Option shall terminate and be of no further force or effect,
notwithstanding Lessee's due and timely exercise of the Option, if, after such
exercise and prior to the commencement of the extended term, (i) Lessee fails to
pay Rent for a period of thirty (30) days after such Rent becomes due (without
any necessity of Lessor to give notice thereof), (ii) Lessor gives to Lessee
three (3) or more notices of separate Default during any twelve (12) month
period, whether or not the Defaults are cured, or (iii) if Lessee commits a
Breach of this Lease.
-36-
40. Multiple Buildings. If the Premises are a part of a group of buildings
controlled by Lessor, Lessee agrees that it will observe reasonable rules and
regulations which Lessor may make from time to time for the management, safety,
and care of said properties, including the care and cleanliness of the grounds
and including the parking, loading and unloading of vehicles, and that Lessee
will pay its fair share of common expenses incurred in connection therewith.
41. 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.
42. 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 documents reasonably requested by Lessor to
effectuate any such easement rights, dedication, map or restrictions.
43. 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.
44. 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. Each party
shall, within thirty (30) days after request, deliver to the other party
satisfactory evidence of such authority.
45. 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.
-37-
46. 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.
47. 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.
48. 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.
49. Mediation and Arbitration of Disputes. An Addendum requiring the Mediation
and/or the Arbitration of all disputes between the Parties and/or Brokers
arising out of this Lease [_] is [X] is not attached to this Lease.
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND
PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS LEASE SHOW THEIR
INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT AT THE
TIME THIS LEASE IS EXECUTED THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE
AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE
PREMISES.
ATTENTION: NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE AMERICAN
INDUSTRIAL REAL ESTATE ASSOCIATION OR BY ANY BROKER AS TO THE LEGAL SUFFICIENCY,
LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS LEASE OR THE TRANSACTION TO WHICH IT
RELATES. THE PARTIES ARE URGED TO:
1. SEEK ADVICE OF COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS LEASE.
2. RETAIN APPROPRIATE CONSULTANTS TO REVIEW AND INVESTIGATE THE CONDITION OF
THE PREMISES. SAID INVESTIGATION SHOULD INCLUDE BUT NOT BE LIMITED TO: THE
POSSIBLE PRESENCE OF HAZARDOUS SUBSTANCES, THE ZONING OF THE PREMISES, THE
STRUCTURAL INTEGRITY, THE CONDITION OF THE ROOF AND OPERATING SYSTEMS, AND
THE SUITABILITY OF THE PREMISES FOR LESSEE'S INTENDED USE.
-38-
WARNING: IF THE PREMISES IS LOCATED IN A STATE OTHER THAN CALIFORNIA, CERTAIN
PROVISIONS OF THE LEASE MAY NEED TO BE REVISED TO COMPLY WITH THE LAWS OF THE
STATE IN WHICH THE PREMISES IS LOCATED.
The parties hereto have executed this Lease at the place and on the dates
specified above their respective signatures.
-39-
Executed at: _______________________
on: ________________________________
By LESSOR:
____________________________________
____________________________________
By: ________________________________
Name Printed: ______________________
Title: _____________________________
By: ________________________________
Name Printed: ______________________
Title: _____________________________
Address: ___________________________
____________________________________
Telephone: ( ) ____________________
Facsimile: ( ) ____________________
Federal Id. No. ____________________
BROKER:
____________________________________
Executed at: _______________________
on: ________________________________
By: _______________________________
Name Printed: ______________________
Title: _____________________________
Address: ___________________________
____________________________________
Telephone: ( ) ____________________
Facsimile: ( ) ____________________
Federal Id. No. ____________________
Executed at: _______________________
on: ________________________________
By LESSEE:
------------------------------------
------------------------------------
____________________________________
By: ________________________________
Name Printed: ______________________
Title: _____________________________
By: _______________________________
Name Printed: ______________________
Title: _____________________________
Address: ___________________________
____________________________________
Telephone: ( ) ____________________
Facsimile: ( ) ____________________
Federal Id. No. ____________________
BROKER:
____________________________________
Executed at: _______________________
on: ________________________________
By: _______________________________
Name Printed: ______________________
Title: _____________________________
Address: ___________________________
____________________________________
Telephone: ( ) ____________________
Facsimile: ( ) ____________________
Federal Id. No. _____________________
NOTE: These forms are often modified to meet changing requirements of law and
industry needs. Always write or call to make sure you are utilizing the most
current form: AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION, ▇▇▇ ▇▇. ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. (▇▇▇) ▇▇▇-▇▇▇▇.
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
-40-
EXHIBIT A
[FLOOR PLAN]
LEASE ADDENDUM
Addendum to the lease dated August 11, 1997, b and between ▇▇▇▇▇ ▇.
▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (Lessor) and The SMT Centre, Inc., a California
corporation (Lessee), for those premises located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇.
Lessor and Lessee hereby amend the provisions of the lease as set out below.
1.5 Rent Schedule:
Months Base Rent
01-12 $58,320.00/month
13-24 $61,560.00/month
25-36 $64,800.00/month
37-48 $68,040.00/month
49-60 $71,280.00/month
2.3(b) Notwithstanding the provisions of section 2.3(b) and 7.1(c), except as
required under section 2.3(a) with regard to Capital Expenditures
required as a result of th specific and unique use of the Premises by
Lessee, Lessee shall have no obligation to make any contribution, of
amortized payments or otherwise, for any Capital Expenditure for an
upgrade of any structural component of the Premises (including without
limitation any seismic upgrades to the Building).
6.2(a) Lessor hereby consents to the Tenant maintaining on the Premises those
substances listed on exhibit C provided all such substances shall be
---------
maintained in compliance with Applicable Requirements.
6.2(b) If Lessor knows, or has reasonable cause to believe, that a Hazardous
Substance has come to be located in, on, under or about the Premises,
other than as previously disclosed to Lessee, lessor shall immediately
give written notice of such fact to Lessee, and provide Lessee with a
copy of any report, notice, claim or other documentation which it has
concerning the presence of such Hazardous Substance.
6.2(c) for purposes of this section 6.2, Lessee shall have no responsibility or
liability fr any `release' which consists of the continuation of the
presence of a Hazardous Substance on the Premises, which originated prior
to the Commencement Date.
6.2(f) With respect to any contamination for which Lessor is required to
undertake investigations or remediation pursuant to this section, the
Rent payable by Lessee for the period required for the investigation or
remediation shall be abated in proportion to the degree to which Lessee's
use of the Premises is impaired. If the impairment of Lessee's use cannot
be eliminated within six (6) months or less from the date of discovery
thereof,
-2-
Lessor shall notify in writing within thirty (30) days from discovery
thereof. Lessee may elect, by written notice delivered to Lessor within
sixty (60) days from receipt of Lessor's notice that the impairment of
use cannot be eliminated within said six (6) month period, to terminate
this Lease.
6.3 If a request by the board of fire underwriters or Lessor's engineer
relates to the condition of the Premises (as opposed to Lessee' specific
and unique use) the Lessor shall pay the cost to comply with such
requirements. If during the Lease term, Lessor receives a request from
any insurance company or underwriter to perform tests on the Premises
(including without limitation the fire protection system), Lessor will
promptly inform Lessee of such request and if Lessee agrees to pay the
cost of such test, Lessor promptly will perform the tests and provide the
insurance company (or underwriter) of the results thereof.
7.1 Notwithstanding the foregoing, Lessee shall have no obligation to
restore, replace or renew, or to contribute to the costs to restore,
replace or renew, any structural portion of the Premises (including
without limitation the foundation, structural floor slab, roof structure,
weight bearing walls) and Lessee shall not be required to repaint the
exterior of the Premises during the Original Term.
7.3(a) The parties acknowledge that the items described on Exhibit D are
---------
Lessee's Trade Fixtures.
7.4(b) As to any matter fr which Lessor's consent is required, at the time
consent is given, Lessor shall indicate whether or not it shall require
the Alterations or Utility Installations to be removed upon the
expiration or termination of this Lease.
9.6(a) This section is revised to read as follows: In the event of a Hazardous
Substance condition for which Lessee is not responsible under this Lease,
or of Premises Partial Damage or of Premises Total Destruction, the Rent
payable by Lessee for the period required for the repair, remediation or
restoration of such damage shall be abated in proportion to the degree to
which Lessee' use of the Premises is impaired. All other obligations of
Lessee hereunder shall be performed by Lessee, and Lessor shall have no
liability for any such damage, destruction, remediation, repair or
restoration except as provided herein.
12.1 An Internal Change (as defined below) shall not be deemed an assignment
or subletting requiring Lessor's consent. the term "Internal Change"
shall mean any transfer by Lessee to (i) a subsidiary of Lessee, (ii) a
parent of Lessee, (iii) an entity controlled by a subsidiary or parent of
Lessee, (iv) any merger or any sale of a controlling interest in Lessee
or (v) the private or public offering of stock in Lessee.
-3-
12.2 Notwithstanding the foregoing, Lessor will respond to any request for
consent hereunder within ten (10) business days from receipt of the
required information and the failure of Lessor to so respond shall be
deemed consent to the requested act.
12.4 In the event of an assignment or subletting (other than an Internal
Change, Lessor and lessee shall share in any Net Bonus Rent (as defined
below) with one-half to belong to Lessor and one-half to belong to
Lessee. "Net Bonus Rent" shall mean the Rent to be paid to Lessee by a
subtenant or assignee for occupancy of the Premises less all sums that
Lessee is required to pay to Lessor under this Lease. "Net Rent" shall
mean those sums received from a subtenant or assignee after Lessee has
recouped al its costs and expenses related to the assignment or
subletting (including without limitation broker's commissions, attorneys'
fees, any tenant improvement costs and any "incentives" that must be paid
to induce the subtenant or assignee to occupy the Premises).
32 Except for emergencies, Lessor shall provide Lessee with prior notice of
any entry by Lessor.
39.2 The foregoing notwithstanding, a successor as a result of an Internal
Change may exercise any option or right granted to Lessee so long as such
successor is in possession o the Premises.
The following new sections are hereby added to the Lease:
50. Renewal at Fair Market Rent:
a. Renewal Option: Lessee shall have the option (the "Renewal Option") to
extend the initial term of this Lease for two (2) successive renewal
terms of three (3) years (the "Renewal Term"). Provided that Lessee is
not in default of this Lease beyond the expiration of any applicable
grace or cure periods on the date of giving notice of exercise of the
Renewal Option or on the first day of the extension term, Lessee may
exercise the Renewal Option by giving Lessor written notice not more
than two hundred ten (210) days, but at least 180 days, prior to, th
date set forth above for the expiration of the initial term of this
Lease, or first renewal term, if exercised (with time to be of the
essence as to the timely exercise of such Renewal Option). If Lessee
exercises the Renewal Option, then this Lease shall be extended for
the three (3) years Renewal Term upon all of the terms, covenants, and
conditions contained in this Lease, except that, during the Renewal
Term, the fixed monthly rent shall be 100% of the monthly market
rental value of the then applicable market rent for similar buildings
with similar credit tenants guaranteed b similar guarantors and
located n the same geographical area the "Market Value Rent") of the
Premises on the date that Lessee exercises the Renewal Option (The
"Exercise Date"), as determined below. Lessor shall have
-4-
no obligation to complete any further tenant improvements during the
ter of the Renewal Option.
b. Market Value Rent: If Lessee elects to extend the term of this Lease as
provided above, the term "Market Value Rent" shall mean the annual Base
Rent and annual increases that a willing Lessee would pay and a willing
Lessor would accept to an arm's length lease of the Premises as of the
Exercise Date.
c. Rent Determination: The parties shall have thirty (30) days after Lessor
receives the option notice in which to agree on the Market Value Rent
during the extended term. Within the thirty (30) day period after Lessor
receives the option notice, Lessor and Lessee shall meet and each shall
simultaneously provide to the other its written opinion of the Market Value
Rent for the Premises for the renewal term (the Lessor and Lessee
Determination Notices, respectively). If the parties agree on the Market
Value Rent for the extended term during that period, they shall immediately
execute an amendment to this Lease stating the Market Value Rent for the
extended term.
If the parties are unable to agree on the Market Value Rent for the
extended term within that period, then within fifteen (15) days after the
expiration of that period, each party, at its costs and by giving notice to
the other party, shall appoint a real estate agent of broker
"agent/broker") with at least five (5) years' full-time commercial real
estate brokerage experience in the area in which the Premises are located,
to determine and set the Market Value Rent fr the extended term. f a party
does not appoint a real estate agent/broker within fifteen (15) days after
the other party has given notice of the name of its agent/broker, the
single agent/broker appointed shall be the sole determiner of and shall set
the Market Value Rent for the extended term. If the two real estate
agent/brokers are appointed by the parties as stated in this paragraph,
they shall meet promptly and attempt to set the Market Value Rent for the
extended term. If they are unable to agree within thirty (30) days after
the second real estate agent/broker has been appointed, they shall attempt
to select a third real estate agent/broker meeting the qualifications
stated in this paragraph, within fifteen (15) days after the last day the
two agent/brokers are given to set the Market Value Rent. If they are
unable to agree on the third real estate agent/broker, either of the
parties to this Lease, by giving fifteen (15) days' notice to the other
party can apply to the then president of the San ▇▇▇▇ Board of Realtors or
to the presiding judge of the superior Court of Santa ▇▇▇▇▇ County for the
selection of a third real estate agent/broker who meets the qualifications
stated in this paragraph. Each of the parties shall bear one-half (1/2)
of the cost of appointing the third real estate agent/broker and of paying
the third agent/broker's fee. The third agent/broker, however selected,
shall be a person who has not previously acted in any capacity for either
party.
Within thirty (30) days after the selection of the third agent/broker, a
majority of the agent/brokers shall set the Market Value Rent for the
extended term. If a majority of the agent/brokers are unable to set the
Market Value Rent within the stipulated period of
-5-
time, the three sums determined by the agent/brokers shall be added
together and their total divided by three; the resulting quotient shall be
the Market Value RENT for the Premises during the extended term. This
process shall be binding on both Lessor and Lessee.
(d) Cancellation of Rent Determination: In the event that the
determination of the Market Value Rent set forth in the Lessor's and
Lessee's Determination Notices shall differ by less than five percent (5%)
per square foot per month for the Renewal Term, then the Market Value Rent
shall not be determined by the real estate agent/brokers, but shall be sent
by taking the average of the Lessor's and Lessee's Market Value Rent as set
out in their respective Determination Notices. Only the determinations set
forth in the Lessor's and Lessee's Determination Notices shall differ by
more than five percent (5%) per square foot per month for the Renewal Term
shall the actual determination of Market Value Rent be made by the above
determination process.
(e) Late Determination. If, for any reason, the Market Value RENT shall
not have been determined prior to the Commencement Date of the Renewal
Term, then, Lessee shall continue to pay the Base Monthly Rental in effect
during the final year of the initial terms of the Lease. Upon final
determination of the Market Value Rent, an appropriate adjustment to the
Base Rent shall be made reflecting such final determination, and Lessor or
Lessee, as the case may be, shall promptly refund or pay to the other any
overpayment or deficiency, as the case may be in the payment of the Market
Value Rent from the date of commencement of the Renewal Term to the date of
such final determination.
51. Increases in Property Tax Due to a Sale to an Unrelated Third Party:
If the real estate taxes on the Premises are increased during the first
three years of the lease term as a result of a sale or exchange of the
Premises, the parties have agreed to limit the increase in tax payments
that Lessee will be obligated to pay during the first three years of the
lease term. In the event of such an increase, Lessee shall be required to
pay, for any twelve month period that begins with an anniversary of the
Commencement Date (a "Lease Year"), an increase in taxes up to (but not
more than) an amount equal to ten percent (10%) of the total taxes that
Lessee paid in Lease Year preceding the year of increase. On the third
anniversary of the Commencement Date, the limit on Lessee's obligation to
pay taxes shall cease, and Lessee shall pay real estate taxes as required
under lease section 10. Notwithstanding the foregoing, however, in no case
shall Lessee be required to pay, at any time during the lease term, any
increase in real estate taxes caused by a "change in ownership" which is
not a bona fide sale or exchange to a third party (including without
limitation, for example, an internal reorganization of tenant, a transfer
by tenant to related parties or an estate planning change of ownership
(such as a transfer to a "family partnership"))
-6-
52. Right of First Offer:
a. First Offer Right: Lessee shall have the Right of First Offer for the
sale of the Premises pursuant to the following terms of this right of First
Offer. This Right of First Offer shall apply to the initial (5) year term
and the two (2) renewal term(s), if exercised.
b. Procedure for Offer: Lessor agrees that during the initial five (5)
year lease term and two (2) three (3) year option periods of this Lease,
Lessor shall deliver written notice to Lessee prior to Lessor submitting to
a third party a bond fide proposal or responding to a proposal to sell the
Premises to such third party. If Lessor sells the Premises to a third
party after offering the Premises to lessee as required hereunder, Lessee's
right of first offer shall thereupon terminate and be of no further force
or effect.
c. Procedure for Acceptance: Provided that the Lessee is not in default
of this Lease beyond the expiration of any applicable grace or cure periods
on the date of giving Notice of Right of First Offer, Lessee shall have the
exclusive right and option to elect to negotiate with Lessor to purchase
the Premises for a period of fifteen (15) days from Lessor's written
notice. During this period of time, Lessor will conduct any purchase
discussions only with Lessee. Lessor may negotiate with any other parties
(whether or not an agreement is reached with Lessee) after this fifteen
(15) days period has expired.
d. Suspension of Right of First Offer: Lessee shall not have the right to
exercise this Right of First Offer is Lessee is in default of this Lease
beyond the expiration of any applicable grace or cure periods on the date
of giving the First Offer Notice.
e. First Offer Right Personal to Lessee: Lessee's Right of First Offer is
personal to, and shall only be exercised by the originally named Lessee
under this Lease (and may not be exercised by any assignee, sublessee or
other transferee of Lessee's interest in this Lease or the Premises,), and
shall only be available to Lessee while Lessee is in actual possession and
physical occupancy of the entire Premises. For purposes of this section, a
successor under an Internal Change shall be deemed to be the Lessee
hereunder.
53. Intentionally deleted.
54. Signage: Lessor, without warranty of success, shall cooperate with
Lessee and the appropriate governmental agencies to acquire the monument and
building signage for Lessee.
55. Condition of Premises/Roof Maintenance and Repair: Prior to Lessee's
occupancy, the Premises' plumbing, electrical and mechanical systems will be in
good working order and condition. Lessor shall repair or replace any defective
or malfunctioning component of the heating, ventilation, and air conditioning
system (HVAC), the plumbing system (including sprinkler system) or electrical
system (including lights) for which Lessor has received written notice from
Lessee describing the failure or malfunction within one hundred twenty (120)
days
-7-
of the Commencement Date. Prior to the Commencement Date, Lessor shall replace
the roof with a so-called twenty year roof of a type reasonably acceptable to
Lessee. Beginning on the first anniversary of the Commencement Date, with each
payment of Base Rent, Lessee shall pay, in addition, a monthly sum equal to the
amount necessary to fully amortize the cost of the roof plus interest at ten
percent per annum (10%) over one hundred twenty (12) such equal monthly
payments. Lessor shall provide, upon the request of Lessee, such evidence of
cost and is reasonably requested by Lessee.
LANDLORD: TENANT:
The SMT Centre, Inc., a California
corporation
_______________________ By:
_____________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Print Name
_______________________ ______________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Signature
_______________________
Title of Signatory
-8-
WORK LETTER AGREEMENT
---------------------
This Work Letter Agreement ("Agreement") is made pursuant to and as part of
that certain lease agreement ("Lease") dated as of August 11, 1997 by and
between ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (collectively, "Lessor") and The
SMT Centre, Inc., a California corporation ("Lessee") covering certain premises
("Premises") more particularly described in Section 1.2 of the Lease. In
consideration of the mutual covenants contained below, Lessor and Lessee hereby
agree as follows:
1. Construction of Tenant Improvements. Lessor agrees to construct
-----------------------------------
certain improvements ("Tenant Improvements") within the Premises in conformance
with the Approved Plans described below, subject to all the terms and conditions
contained in this Agreement.
2. Improvement Allowance.
---------------------
(a) Amount. Lessor shall provide an allowance for the building costs
------
incurred by Lessor in completing the Tenant Improvements ("Improvement
Allowance"). The allowance shall be used, but not limited to, the installation
and completion of the following improvements:
(1) Remove all interior walls in the manufacturing area and
remove the existing office area.
(2) Paint all the interior walls with a mutually acceptable
color.
(3) Carpet in the office area with a mutually acceptable quality
and color.
(4) Install adequate fluorescent lighting fixtures for Lessee's
assembly operation.
(5) General cleanup outside the Premises, landscape and parking
areas.
(6) Power wash and paint the exterior of the building in mutually
acceptable colors.
(7) Distribute the existing power to accommodate Lessee's
assembly operation.
(8) Construct a dock high truck well at the designated, existing
grade level roll-up door.
(9) Install a new HVAC system(s) to service the entire premises.
(10) Install a tile floor covering (VCT) throughout the assembly
and storage areas.
(11) Demolish concrete sloped slab (approximately 7,500 square
feet) and install a new slab.
To the extent that the cost of the Tenant Improvement Work is in excess of
the Improvement Allowance, then Lessee shall pay to Lessor such excess amount on
a pro rata basis as a percentage of the completion of the Tenant Improvement
Work.
(b) Definition of Tenant Improvement Work. The term "Tenant
-------------------------------------
Improvement Work" shall mean all work required pursuant to the Approved Plans
(as defined below) to be done to complete the Tenant Improvements in the
Premises for occupancy by the Lessee.
(c) Definition of Improvement Costs. As used in this Agreement, the
-------------------------------
term "Improvement Costs" shall mean and include all hard and soft costs related
to the design and construction of the Tenant Improvements in accordance with the
Approved Plans and all approved Change Orders, including without limitation (i)
engineering and architectural fees; (ii) the costs of all required governmental
approvals and permits, (iii) all contractor supervision costs; (iv) the cost of
acquiring materials, supplies and equipment rental; (v) the contract price for
all construction work undertaken by general contractors and subcontractors,
including fees, general conditions and overhead of the contractors ("General
Contractor's Fees"), as applicable; (vi) the cost of all equipment and fixtures
provided for in the Approved Plans, including the cost of installation; (vii)
the cost of all testing expenses; (viii) the cost of premiums for surety bonds,
if any, including, but not limited to payment and performance bonds and
mechanics' ▇▇▇▇ ▇▇▇▇▇; (ix) the cost of utility connections, installation of
utility facilities and meters, and course of construction utility usage fees;
(x) the cost of removing rubbish and waste materials from the work site; and
(xi) the cost of premiums for insurance, if any, including contractor's
liability, course of construction and workers' compensation.
(d) Exclusions from Improvement Costs. The Improvement Costs shall
---------------------------------
not include any costs incurred by Lessor in redoing the parking lot by removing
landscaping, repairing degraded areas of asphalt, reconfiguring the parking
layout, and slurry sealing and striping the parking lot. This work all shall be
performed by Lessor and will result in a reconditioned parking lot with 175 or
more parking spaces.
3. Preparation of Preliminary and Final Plans.
------------------------------------------
(a) Preparation of Preliminary Plans. On or before September 22,
--------------------------------
1997 Lessee shall provide to Lessor sufficient information regarding Lessee's
requirements for the Tenant Improvements in order to enable Lessor to prepare
preliminary plans and specifications for the Tenant Improvements ("Preliminary
Plans"). Lessor shall cause its architect to promptly deliver to Lessee
Preliminary Plans.
-2-
(b) Revision of Preliminary Plans. Within three (3) business days
-----------------------------
after the delivery of the Preliminary Plans to Lessee, Lessee shall approve the
Preliminary Plans or inform Lessor of Lessee's specific objections to such
Plans, which objections must be reasonable. If Lessee disapproves the
Preliminary Plans, then the parties shall confer and negotiate in good faith to
reach agreement as to what revisions should be made.
(c) Final Plans. Once an agreement has been reached regarding
-----------
revisions to the Preliminary Plans, Lessor shall prepare final plans and
specifications and working drawings ("Final Plans") for the Lessee Improvements.
Within three (3) business days after the delivery of the Final Plans to Lessee,
Lessee shall approve the Final Plans or inform Lessor of Tenant's specific
objections to such Final Plans, which objections must be reasonable. Provided
that such Final Plans are logical evolutions of the Preliminary Plans and
incorporate the parties' agreement regarding revisions thereto, Lessee shall not
withhold its approval of the Final Plans. The parties shall use their best
efforts to reach agreement regarding changes to the Final Plans as soon as it is
reasonably practicable. In any event the parties shall agree on Final Plans on
or before October 6, 1997.
(d) Lessee Right to Terminate. Lessor's Architect and Lessee shall
-------------------------
work diligently to obtain a preliminary cost estimate for the Improvement Costs.
The estimates shall be reduced to writing and initialed by Lessor and Lessee.
The preliminary estimates shall include (i) a preliminary estimate of the "hard
costs" for the Tenant Improvements, (ii) a preliminary estimate of the "soft
costs" for the Tenant Improvements and (iii) a preliminary estimate of all other
costs included in the definition of Improvement Costs for the Tenant
Improvements. If the preliminary estimate exceeds nine hundred thousand dollars
($900,000), Lessee shall have the right to terminate this Lease by written
notice to Lessor within three business days after receipt of the preliminary
estimate. If Lessee elects to terminate this Lease, Lessor promptly shall
return Lessee's Security Deposit and first month's rent.
(e) Bidding/Cost Statement. Once the parties have approved the Final
----------------------
Plans, Lessor shall be responsible for causing the Tenant Improvements to be
constructed by one (1) of the general contractors chosen by Lessor
("Contractors") to be selected by the bidding procedure described below in this
section ("Approved Contractor"). Prior to October 6, 1997, Lessor shall submit
to the contractors the Approved Plans and cause each contractor to submit to
Lessor fixed-price bids for such Tenant Improvements. Such bids shall be quoted
as a total dollar amount. Lessor shall instruct each Contractor to include in
its bid, to the extent practical, the identities of all subcontractors,
materialmen, laborers and suppliers (collectively "Subcontractors") from whom
such Contractors shall obtain competitive bids for the Tenant Improvements
(including any subcontractors required to be included in the bid package by
Lessor and Lessee, as described below), as well as an estimated construction
schedule for construction of the Tenant Improvement Work and a commitment to
achieve Lessor's and Lessee's goal to have the Tenant Improvements Substantially
Completed by December 15, 1997. Lessor shall cause each Contractor to include in
the bid package an appropriate adjustment, if
-3-
any, to such General Contractor's Fees, for overtime and other increased cost to
the extent required to meet such schedule. Lessor will cause the Contractors to
deliver to Lessor and Lessee sealed copies of their bids by October 17, 1997.
Lessor also shall deliver to Lessee final not-to-exceed "soft costs" on or
before October 17, 1997. On or before October 19, 1997, Lessor shall select one
of the Contractors described above to act as the general contractor for the
Tenant Improvements based on the lowest bid, as determined by Lessor after
Lessor has completed an "apples to apples" comparison of all the bids. Lessor
will supply this comparison to the Lessee by October 19, 1997. Lessee may
request a Contractor whose bid was higher by notifying Lessor in writing on or
before October 20, 1997.
Following the selection, the Approved Contractor shall submit a fixed-price
contract to the Lessor, which contract shall combine the selected
Subcontractor's bids with the General Contractors Fees. Prior to Lessor's
execution of the fixed-price contract Lessor shall deliver to Lessee a statement
(the "Cost Statement") setting forth the projected delivery date and (i) the
contract price for the "hard" costs, and (ii) a statement of the design and
construction costs of the Tenant Improvements that are not included in the
General Contractor's contract, such as, but not limited to, (A) any permit fees
and (B) all other soft costs.
Notwithstanding the foregoing, if the Improvement Costs described in the Cost
Statement, are more than ten percent in excess of the Preliminary Improvement
Costs (exclusive of any increase in costs resulting from Lessee requested
changes or modifications), then Lessee shall have the right to terminate this
Lease by providing Lessor with written notice within two (2) business days from
receipt of the final Improvement Costs. If Lessee does not so terminate this
Lease, then the Improvement Costs delivered to Lessee shall be binding and shall
not increase unless (i) Lessee agrees in writing to such an increase or (ii)
through Lessee approved Change Orders (as described below). Lessor shall not
authorize any increase in Improvement Costs, once delivered to Lessee, without
Lessee's prior written consent. If Lessee elects to terminate this Lease,
Lessor promptly shall return Lessee's Security Deposit and first month's rent.
(f) Governmental Approvals. Once the parties have agreed on any
----------------------
revisions to the Final Plans as described above, Lessor shall cause its
architect to obtain approval of the Approved Plans by all governmental agencies
having jurisdiction of the Premises. If any changes are required by the
governmental authorities, Lessor and Lessee shall cooperate to incorporate such
changes. The costs resulting from any such changes shall be included with
"Improvement Costs" as described above. Immediately after all such governmental
approvals have been obtained, Lessor and Lessee shall initial and date four (4)
copies of such approved Final Plans ("Approved Plans"), which shall then become
a part of this Agreement as though fully set forth herein.
(g) Failure to Deliver Objections. Every approval or disapproval by
-----------------------------
Lessee given to Lessor under this Agreement shall not be effective unless in
writing signed by Lessee. If Lessee fails to deliver any written objections to
the Preliminary Plans, Final Plans or Cost
-4-
Estimate within the respective time periods provided above, then Lessee shall be
deemed to have approved the same.
4. Change Orders. No material changes, modifications or alternations in
-------------
the Approved Plans or in the Tenant Improvement Work pursuant thereto shall be
made by either party without the prior written consent of the other, which
consent shall not be unreasonably withheld or delayed. All requests for extra
work or change orders shall be made in writing, and shall specify the added or
reduced costs and time resulting therefrom. Once approved in writing by both
parties, such change orders shall become a part of the Approved Plans, and any
additional or reduced costs relating thereto (including any similar services)
shall be added to or subtracted from Improvement Costs, as the case may be.
5. Completion and Rental Commencement Date.
---------------------------------------
(a) Lessor's Obligations. Upon obtaining all necessary governmental
--------------------
approvals, Lessor shall commence construction of and diligently pursue the
completion of the Tenant Improvements substantially in compliance with the
Approved Plans and this Agreement, and in conformance with all conditions
applicable to the Tenant Improvements which are necessary for lawful occupancy
of the Premises.
(b) Commencement Date; Substantial Completion. Notwithstanding the
-----------------------------------------
provisions of section 1.3 of the Lease to the contrary, the Commencement Date of
the Lease and Lessee's obligations for the payment of Rent under the Lease shall
commence on the date (the "Commencement Date") which shall be the later of: (i)
Substantial Completion (as defined below) of the Tenant Improvement Work or (ii)
December 15, 1997. As used in this Agreement, the term "Substantial Completion"
means the date on which all of the following have been completed: (i)
Certification by Lessor's architect on the appropriate AIA form that the Tenant
Improvement Work has been completed in accordance with the Approved Plans,
subject to Punch-List items which will not materially interfere with Lessee's
use and occupancy of the Premises; and (ii) receipt of a temporary Certificate
of Occupancy, or other occupancy permit, entitling Lessee to legally occupy the
Premises. Lessor shall use its commercially reasonable efforts to cause all
Punch-List items to be completed within thirty (30) days after Substantial
Completion.
In the event Substantial Completion occurs prior to December 15, 1997, then
Lessee, at Lessee's sole election, shall be permitted to (but shall not be
required to) occupy and do business from the Premises under all of the terms and
conditions of the Lease ("Early Occupancy"). In the event Early Occupancy
occurs, then Lessee shall be obligated to pay Base Rent, such Rent shall be
prorated on a per diem basis until December 15, 1997. Lessor shall notify
Lessee at least two (2) weeks in advance of the anticipated Substantial
Completion date, subject to change depending on final inspections by City
inspectors. Lessor shall deliver to Lessee a notice specifying the Commencement
Date and expiration date of the Term, which notice Lessee shall execute and
return to Lessor within ten (10) business days of receipt thereof.
-5-
(c) Lessee Delay. Notwithstanding the foregoing, if Lessor's
------------
completion of the Tenant Improvement Work is delayed as a result of any Lessee
Delay (defined below), then the Commencement Date as would otherwise have been
established pursuant to section (b) above shall be accelerated by the number of
days of such Lessee Delay. For purposes of this Lease, "Lessee Delay" shall man
any delay or delays in Substantial Completion of the Tenant Improvement Work
resulting from (i) Lessee's failure to promptly furnish any information
necessary for Architect's completion of the Preliminary Plans or final
construction plans or to approve the Preliminary Plans or the final construction
plans by the date set forth, (ii) Lessee's failure to provide information to the
Architect in accordance with the provisions of this Work Letter Agreement, (iii)
Lessee's changes to the Approved Plans after Lessor's and Lessee's approval
thereof, (iv) Lessee's failure to otherwise perform any of its obligations
hereunder by the dates set forth and/or Lessee's failure to otherwise comply
with any provision of the Lease, (v) Lessee's request for materials, finishes or
installations that are long lead-time items, provided that Lessor shall notify
Lessee of such fact and give Lessee the opportunity of substitution within three
(3) business days after such notice, and any delay resulting from such
substitution shall be a Lessee Delay (provided it shall not be a Lessee Delay if
no substitution is available on a shorter lead-time), (vi) any delay of Lessee
in making payment of Lessee's share of the costs and expenses of the design and
construction of the Tenant Improvement Work, (vii) Lessee's interference with
Lessor or the General Contractor's construction of the Tenant Improvement Work,
(viii) any work performed by Lessee in the Premises which interferes with,
obstructs or delays Lessor in the construction of the Tenant Improvement Work
(provided the parties acknowledge that Lessee will be entering the Premises
prior to Substantial Completion to install equipment and other improvements in
accordance with section 7 below) and (ix) any other act or failure, after the
date Lessee executes this Work Letter Agreement, by Lessee, Lessee' s employees,
agents, consultants or any other persons performing or required to perform
services on behalf of Lessee. Prior to claiming any Lessee Delay and as a
condition to such claim, Lessor must notify Lessee in writing within twenty four
hours of the occurrence of an event of Lessee Delay and of the number of days
that Lessor claims with regard to such Lessee Delay. (In no event shall the
fact that Lessee's use of the Premises includes certain Hazardous Substances be
deemed in any manner a Lessee Delay.)
(d) Assignment of Warranties. Upon completion of the Tenant
------------------------
Improvements, Lessor shall assign to Lessee the warranties for any equipment or
portions of the Premises for which Lessee is assuming responsibility hereunder,
including without limitation the HVAC system. If any such warranties are not
assignable, Lessor will cooperate with Lessee if Lessee determines that a claim
should be made under the warranty.
6. Punch List Procedure. Within thirty (30) days after Lessor notifies
--------------------
Lessee that the Tenant Improvements are substantially complete, Lessee shall
deliver to Lessor a statement describing all noticeable defects, errors and/or
omissions observed in the Tenant Improvements (the "Punch List"). Lessor,
Lessee, the Architect and Contractor shall perform an inspection of the Premises
and shall note any obvious defect or omissions within the Premises.
-6-
7. Fixturing Entry by Lessee. Any time during thirty (30) days before
-------------------------
the scheduled completion date for the Tenant Improvements, Lessee, at its
option, along with its contractors, subcontractors and agents, shall be
permitted to enter the Premises, with no obligation to pay Rent, for the
purposes of installing furniture, fixtures, and equipment provided that Lessee
has already complied with the insurance provisions of this Lease and provided
such access and installation work does not unreasonably interfere with,
obstruct, or delay Lessor's construction of the Tenant Improvement Work.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date above first written.
LANDLORD: TENANT:
The SMT Centre, Inc., a
California corporation
__________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By:
________________________
Print Name
Date:
_______________________
Signature
__________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_______________________
Date: Title of Signatory
By: _______________________
Print Name
_______________________
Signature
_______________________
Title of Signatory
Date:
-7-
EXHIBIT B
NONE-DELETED
EXHIBIT C
LIST OF HAZARDOUS SUBSTANCES TO BE USED BY TENANT--LANDLORD APPROVES USE IN
ACCORDANCE WITH APPLICABLE LAWS BY EXECUTING LEASE
DESCRIPTION TYPE ANNUAL QUANTITY
SOLDER PASTE ALPHA WS629 800 LBS
FLUX ALPHA FLUX 856 1500 GALLONS
FLUX THINNER ALPHA 425 2500 GALLONS
SOLDER ALPHA VACULOY 1200 LBS
EXHIBIT D
LIST OF ITEMS TENANT INTENDS TO ATTACH TO PREMISES THAT WILL BE CONSIDERED
TRADE FIXTURES (OTHER TRADE FIXTURES MAY ALSO BE ATTACHED BY TENANT)
TRADE FIXTURES TO BE ATTACHED TO THE BUILDING:
1. EQUIPMENT EXHAUST UNITS.