Exhibit 10.9
BASIC LEASE INFORMATION
Lease Date: April 30, 1998
Tenant: ADEPT TECHNOLOGY, INC., a California corporation
Address of Tenant: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Landlord: THE ▇▇▇▇▇▇ AND ▇▇▇ ▇▇▇▇ REVOCABLE TRUST DATED AUGUST 18, 1989
Address of Landlord: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Project Description: ▇▇▇▇▇▇ Business Center, Livermore, CA
Building Description: Building "B" at ▇▇▇▇▇▇ Business Center
Premises: Approximately 12,862 square feet of industrial space
Permitted Uses: Office administration, and light manufacturing
and assembly of products
Scheduled Term
Commencement Date: One hundred twenty (120) after the date of Landlord's
selection of the Contractor in accordance with the Tenant Improvement Work
Letter attached to this Lease as Exhibit F
Length of Term: Five (5) years
Rent:
Base Rent: Lease Months Rent/Square Foot/Month Monthly Base Rent
$12,090.28 1-30 $0.94
$13,376.48 31-60 $1.04
Estimated First Year Basic
Operating Cost: $2,315.16/month
Security Deposit: $12,090.28
Tenant's Proportionate Share: 15.8%
The foregoing Basic Lease Information is incorporated into and made a part of
this Lease. Each reference in this Lease to any of the Basic Lease Information
shall mean the respective information above and shall be construed to
incorporate all of the terms provided under the particular Lease paragraph
pertaining to such information. In the event of any conflict between the Basic
Lease Information and the Lease, the latter shall control.
TABLE OF CONTENTS
BASIC LEASE INFORMATION .................................................... 1
PREMISES ................................................................... 3
POSSESSION AND LEASE COMMENCEMENT .......................................... 3
TERM ....................................................................... 3
USE ........................................................................ 3
RULES AND REGULATIONS ...................................................... 5
RENT ....................................................................... 5
BASIC OPERATING COSTS ...................................................... 5
INSURANCE AND INDEMNIFICATION .............................................. 7
WAIVER OF SUBROGATION ...................................................... 7
HAZARDOUS SUBSTANCES ....................................................... 8
LANDLORD'S REPAIRS AND SERVICES ............................................ 9
TENANT'S REPAIRS ........................................................... 9
ALTERATIONS ................................................................ 10
SIGNS ...................................................................... 10
INSPECTION/POSTING NOTICES ................................................. 11
UTILITIES .................................................................. 11
SUBORDINATION .............................................................. 11
FINANCIAL STATEMENTS ....................................................... 12
ESTOPPEL CERTIFICATES ...................................................... 12
SECURITY DEPOSIT ........................................................... 12
TENANT'S REMEDIES .......................................................... 12
ASSIGNMENT AND SUBLETTING .................................................. 12
QUIET ENJOYMENT ............................................................ 13
CONDEMNATION ............................................................... 13
CASUALTY DAMAGE ............................................................ 13
HOLDING OVER ............................................................... 14
DEFAULT .................................................................... 15
LIENS ...................................................................... 17
SUBSTITUTION ............................................................... 17
TRANSFERS BY LANDLORD ...................................................... 17
RIGHT OF LANDLORD TO PERFORM
TENANT'S COVENANTS ......................................................... 17
WAIVER ..................................................................... 18
NOTICES .................................................................... 18
ATTORNEYSO FEES ............................................................ 18
SUCCESSORS AND ASSIGNS ..................................................... 18
FORCE MAJEURE .............................................................. 18
MISCELLANEOUS .............................................................. 18
ADDITIONAL PROVISIONS ...................................................... 19
LEASE
THIS LEASE is made as of April 30, 1998 between The ▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇
Revocable Trust Dated August 18, 1989 ("Landlord") and Adept Technology, Inc., a
California corporation ("Tenant").
PREMISES
Landlord leases to Tenant and Tenant leases from Landlord, upon the terms and
conditions hereafter set forth, those premises (the "Premises") shown by
cross-hatch on Exhibit A attached hereto and inpose requirements respecting
impound accounts in conflict with "applicable law;" provide for the application
of insurance or condemnation?????????
BASIC LEASE INFORMATION
Lease Date: April 30, 1998
Tenant: ADEPT TECHNOLOGY, INC., a California corporation
Address of Tenant: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Landlord: THE ▇▇▇▇▇▇ AND ▇▇▇ ▇▇▇▇ REVOCABLE TRUST DATED AUGUST 18, 1989
Address of Landlord: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Project Description: ▇▇▇▇▇▇ Business Center, Livermore, CA
Building Description: Building "B" at ▇▇▇▇▇▇ Business Center
Premises: Approximately 12,862 square feet of industrial space
Permitted Uses: Office administration, and light manufacturing
and assembly of products
Scheduled Term
Commencement Date: One hundred twenty (120) after the date of Landlord's
selection of the Contractor in accordance with the Tenant Improvement Work
Letter attached to this Lease as Exhibit F
Length of Term: Five (5) years
Rent:
Base Rent: Lease Months Rent/Square Foot/Month Monthly Base Rent
$12,090.28 1-30 $0.94
$13,376.48 31-60 $1.04
Estimated First Year Basic
Operating Cost: $2,315.16/month
Security Deposit: $12,090.28
Tenant's Proportionate Share: 15.8%
The foregoing Basic Lease Information is incorporated into and made a part of
this Lease. Each reference in this Lease to any of the Basic Lease Information
shall mean the respective information above and shall be construed to
incorporate all of the terms provided under the particular Lease paragraph
pertaining to such information. In the event of any conflict between the Basic
Lease Information and the Lease, the latter shall control.
TABLE OF CONTENTS
BASIC LEASE INFORMATION .................................................... 1
PREMISES ................................................................... 3
POSSESSION AND LEASE COMMENCEMENT .......................................... 3
TERM ....................................................................... 3
USE ........................................................................ 3
RULES AND REGULATIONS ...................................................... 5
RENT ....................................................................... 5
BASIC OPERATING COSTS ...................................................... 5
INSURANCE AND INDEMNIFICATION .............................................. 7
WAIVER OF SUBROGATION ...................................................... 7
HAZARDOUS SUBSTANCES ....................................................... 8
LANDLORD'S REPAIRS AND SERVICES ............................................ 9
TENANT'S REPAIRS ........................................................... 9
ALTERATIONS ................................................................ 10
SIGNS ...................................................................... 10
INSPECTION/POSTING NOTICES ................................................. 11
UTILITIES .................................................................. 11
SUBORDINATION .............................................................. 11
FINANCIAL STATEMENTS ....................................................... 12
ESTOPPEL CERTIFICATES ...................................................... 12
SECURITY DEPOSIT ........................................................... 12
TENANT'S REMEDIES .......................................................... 12
ASSIGNMENT AND SUBLETTING .................................................. 12
QUIET ENJOYMENT ............................................................ 13
CONDEMNATION ............................................................... 13
CASUALTY DAMAGE ............................................................ 13
HOLDING OVER ............................................................... 14
DEFAULT .................................................................... 15
LIENS ...................................................................... 17
SUBSTITUTION ............................................................... 17
TRANSFERS BY LANDLORD ...................................................... 17
RIGHT OF LANDLORD TO PERFORM TENANT'S COVENANTS ............................ 17
WAIVER ..................................................................... 18
NOTICES .................................................................... 18
ATTORNEYS' FEES ............................................................ 18
SUCCESSORS AND ASSIGNS ..................................................... 18
FORCE MAJEURE .............................................................. 18
MISCELLANEOUS .............................................................. 18
ADDITIONAL PROVISIONS ...................................................... 19
LEASE
THIS LEASE is made as of April 30, 1998 between The ▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇
Revocable Trust Dated August 18, 1989 ("Landlord") and Adept Technology, Inc., a
California corporation ("Tenant").
PREMISES Landlord leases to Tenant and Tenant leases from Landlord, upon the
terms and conditions hereafter set forth, those premises (the "Premises") shown
by cross-hatch on Exhibit A attached hereto and incorporated herein by reference
and described in the Basic Lease Information. The Premises may be all or part of
the building (the "Building") or of the project (the "Project") which may
consist of more than one building. The Building and Project are depicted on
Exhibit A.
Tenant shall have the right during the Term of this Lease to the nonexclusive
use of the common corridors and hallways, stairwells, restrooms, and other
public or common areas of the Building, if any, subject to the Rules and
Regulations (as hereinafter defined).
POSSESSION
AND LEASE
COMMENCEMENT In the event this Lease pertains to a Premises in which the
interior improvements have already been constructed (existing improvements), the
provisions of this Paragraph 2.A shall apply and the Term Commencement Date
shall be the earlier of the date on which (1) Tenant takes possession of some or
all of the Premises, or (2) Landlord delivers the Premises to Tenant. If for any
reason Landlord cannot deliver possession of the Premises to Tenant on the
Scheduled Term Commencement Date, Landlord shall not be subject to any liability
therefor, nor shall Landlord be in default hereunder, and ▇▇▇▇▇▇ agrees to
accept possession of the Premises at such time as Landlord is able to deliver
the same, which date shall then be deemed the Term Commencement Date. Tenant
shall not be liable for any Rent for any period prior to delivery of the
Premises. Tenant acknowledges that it has inspected and accepts the Premises in
their present condition as suitable for the purpose for which the Premises are
leased. ▇▇▇▇▇▇ agrees that said ▇▇▇▇▇▇▇▇ and other improvements are in good and
satisfactory condition as of when possession was taken. Tenant further
acknowledges that no representations as to the condition or repair of the
Premises, nor promises to alter, remodel, or improve the Premises have been made
by Landlord, unless such are expressly set forth in this Lease.
In the event this Lease pertains to a Building to be constructed or
improvements to be constructed within a Building, the provisions of this
Paragraph 2.B shall apply in lieu of the provisions of Paragraph 2.A above and
the Term Commencement Date shall be the earlier of the date on which (1) Tenant
takes possession of some or all of the Premises (subject to Section 42) or (2)
Landlord delivers possession of the Premises to Tenant Substantially Complete
(as defined in the Tenant Improvement Work Letter attached hereto as Exhibit F
and incorporated herein) in accordance with the plans and specifications
described on Exhibit B attached hereto and incorporated herein by reference (the
"Plans"). Tenant shall, upon demand on or after the Term Commencement Date,
execute and deliver to Landlord a letter of acceptance of delivery of the
Premises.
If for any reason Landlord cannot deliver possession of the Premises to Tenant
on the
Scheduled Term Commencement Date, Landlord shall not be subject to any liability
therefor, nor shall Landlord be in default hereunder, and ▇▇▇▇▇▇ agrees to
accept possession of the Premises at such time as Landlord is able to deliver
the same, which date shall then be deemed the Term Commencement Date; provided,
however, that if Landlord does not deliver possession of the Premises on or
before the date that is one hundred twenty (120) days after the Scheduled Term
Commencement Date (the "Outside Date"), ▇▇▇▇▇▇'s sole remedy shall be the right
to deliver a notice to Landlord (the "Outside Date Termination Notice") electing
to terminate this Lease effective on Landlord's receipt of the Outside Date
Termination Notice. The Outside Date Termination Notice must be delivered by
Tenant to Landlord, if at all, no earlier than the Outside Date and no later
than five (5) business days after the Outside Date.
Within ten (10) days after ▇▇▇▇▇▇▇▇'s request, Tenant shall execute a lease
confirmation in the form attached hereto as Exhibit C and incorporated herein by
reference.
TERM The Term of this Lease shall commence on the Term Commencement Date and
continue in full force and effect for the number of months specified as the
Length and Term in the Basic Lease Information or until this Lease is terminated
as otherwise provided herein. If the Term Commencement Date is a date other than
the first day of the calendar month, the Term shall be the number of months of
the Length of Term in addition to the remainder of the calendar month following
the Term Commencement Date (the date on which the Term ends, the "Expiration
Date").
USE Tenant shall use the Premises for the Permitted Use and for no other use or
purpose without prior written consent of Landlord. Tenant and its employees,
customers, visitors, and licensees shall have the nonexclusive right to use, in
common with other parties occupying the Buildings or Project, the parking areas
and driveways of the Project, subject to the Rules and Regulations attached
hereto as Exhibit D and incorporated herein, or such other reasonable rules and
regulations as Landlord may from time to time reasonably prescribe (the "Rules
and Regulations"), as follows:
(1) Tenant shall be entitled to twenty-six (26) vehicle parking spaces,
unreserved and unassigned, on those portions of the Project designated by
Landlord for parking. Tenant shall not use more parking spaces than said number.
Said parking spaces shall be used only for parking by vehicles no larger than
full size passenger automobiles or pick-up trucks.
(2) Tenant shall not permit or allow any vehicles that belong to or are
controlled by Tenant or Tenant's employees, suppliers, shippers, customers, or
invitees to be loaded, unloaded, or parked in areas other than those designated
by Landlord for such activities.
(3) If Tenant permits or allows any of the prohibited activities
described in this Paragraph, then Landlord shall have the right, without notice,
in addition to such other rights and remedies that it may have, to remove or tow
away the vehicle involved and
charge the cost to Tenant, which cost shall be immediately payable on demand by
Landlord.
Tenant shall not permit any odors, smoke, dust, gas, substances, noise or
vibrations to emanate from the Premises, nor take any action which would
constitute a nuisance or would obstruct, endanger, or unreasonably disturb any
other tenants of the Building or Project in which the Premises are situated or
unreasonably interfere with their use of their respective premises. Tenant shall
not receive, store or otherwise handle any product, material or merchandise
which is toxic, harmful, explosive, highly flammable or combustible. Storage
outside the Premises of materials, vehicles or any other items Landlord deems
objectionable is prohibited without ▇▇▇▇▇▇▇▇'s prior written consent. Tenant
shall not use or allow the Premises to be used for any improper, immoral,
unlawful or objectionable purpose, nor shall Tenant cause or maintain or permit
any nuisance in, on or about the Premises. Tenant shall not commit or suffer the
commission of any waste in, on or about the Premises. Tenant shall not allow any
sale by auction upon the Premises, or place any loads upon the floors, walls or
ceilings which endanger the structure, or place any harmful liquids in the
drainage system of the Building or Project. No waste materials or refuse shall
be dumped upon or permitted to remain outside the Premises except in trash
containers placed inside exterior enclosures designated for that purpose by
Landlord.
Tenant shall not use the Premises or permit anything to be done in or about
the Premises, the Building or the Project which will in any way conflict with
any law, statute, ordinance, code, rule, regulation, requirement, license,
permit, certificate, judgment, decree, order or direction now in force or which
may hereafter be enacted or promulgated of any governmental or
quasi-governmental authority, agency, department, board, panel or court
(singularly and collectively, "Laws"). Tenant shall at its sole cost and expense
obtain, maintain in effect and comply with any and all licenses or permits
necessary for Tenant's use of the Premises. Tenant shall at its sole cost and
expense promptly comply with all Laws and the requirements of any board of fire
underwriters or other similar bodies now or hereinafter constituted relating to
or affecting the condition, use or occupancy of the Premises. The judgment of
any court of competent jurisdiction or the admission of Tenant in any actions
against Tenant, whether Landlord be a party thereto or not, that Tenant has so
violated any such law, statute, ordinance, rule, regulation or requirement,
shall be conclusive of such violation as between Landlord and Tenant. Tenant
shall not do or permit anything to be done in, on or about the Premises or bring
or keep anything which will in any way increase the rate of any insurance upon
the Premises, the Building or the Project, or upon any contents therein (unless
Tenant pays for any such increase) or cause a cancellation of said insurance or
otherwise adversely affect said insurance in any manner. Tenant shall indemnify,
defend and hold Landlord and Landlord's affiliates, directors, officers,
shareholders, partners, members, representatives, agents, employees, successors
and assigns (collectively, "Landlord's Affiliates") harmless from and against
any and all losses, costs, expenses, damages, claims, injuries, fines,
penalties, liabilities and judgments (including, without limitation, attorneys'
fees and costs) (collectively, "Liabilities") arising out of the failure of
Tenant to comply with any Laws pertaining to its use of the Premises or comply
with the
requirements as set forth herein. Notwithstanding the foregoing, Tenant shall
not be required to comply with Laws of general applicability requiring
construction of improvements in the Premises which are properly capitalized
under generally accepted accounting principles unless such compliance arises due
to or is triggered by or in connection with ▇▇▇▇▇▇'s particular use of the
Premises or Tenant's Alterations (as hereinafter defined).
RULES AND
REGULATIONS Tenant and ▇▇▇▇▇▇'s agents, employees, and invitees shall faithfully
observe and comply with any rules and regulations Landlord may from time to time
prescribe in writing for the purpose of maintaining the proper care,
cleanliness, safety, traffic flow and general order of the Premises or Project.
Landlord shall not be responsible to Tenant for the noncompliance by any other
tenant or occupant of the Building or Project with any of the rules and
regulations. Landlord's current rules and regulations are attached hereto as
Exhibit D and incorporated herein.
RENT Tenant shall pay to Landlord, without demand throughout the term, Rent as
specified in the basic Lease Information, payable in monthly installments in
advance on or before the first day of each calendar month, in lawful money of
the United States, without deduction or offset whatsoever to Landlord at the
address specified in the Basic Lease Information or to such other firm or to
such other place as Landlord may from time to time designate in writing. Rent
for the first full month of the Term shall be paid by Tenant upon ▇▇▇▇▇▇'s
execution of this Lease. If the obligation for payment of Rent commences on
other than the first day of a month, then Rent shall be prorated and the
prorated installments shall be paid on the first day of the calendar month next
succeeding the Term Commencement Date.
BASIC
OPERATING
COSTS Basic Operating Cost. In addition to the Base Rent required to be paid
hereunder, Tenant shall pay as additional Rent, ▇▇▇▇▇▇'s Proportionate Share, as
defined in the Basic Lease Information, of Basic Operating Cost in the manner
set forth below. "Basic Operating Cost" shall mean all expenses and costs of
every kind and nature which Landlord shall pay or become obligated to pay
because of or in connection with the management, maintenance, preservation and
operation of the Project and its supporting facilities servicing the Project
including, but not limited to, the following:
All real estate taxes, possessory interest taxes, business or license
taxes or fees, service payment in lieu of such taxes or fees, annual or periodic
license or use fees, excises, transit charges, housing fund assessments, open
space charge, assessments, levies, fees or charges, general and special,
ordinary and extraordinary, unforeseen as well as foreseen, of any kind
(including fees in lieu of any such tax or assessment) which are assessed,
levied, charged, confirmed, or imposed by any public authority upon the Project,
its operations or the rent (or any portion or component thereof), except (a)
inheritance or estate taxes imposed upon or assessed against the Project, or any
part thereof or interest therein, and (b)
taxes computed on the basis of the net income of Landlord or the owner of any
interest therein.
All insurance premiums and costs, including, but not limited to, any
deductible amounts, premiums and cost of fire, casualty and liability coverage,
rental abatement and special hazard insurance applicable to the Project and
Landlord's personal property used in connection therewith; provided, however,
that Landlord may, but shall not be obligated, to carry special hazard insurance
covering losses caused by casualty not insured under standard fire and extended
coverage insurance.
Repairs, replacements and general maintenance for the Premises,
Building and Project (except for those repairs expressly the responsibility of
Landlord, those repairs paid for by proceeds of insurance or by Tenant or other
third parties and alterations attributable solely to tenants of the Project
other than Tenant).
All maintenance, janitorial and service agreements and costs of
supplies and equipment used in maintaining the Premises, Building and Project
and the equipment therein and the adjacent sidewalks, driveways, parking and
service areas, including, without limitation, alarm service, window cleaning,
elevator maintenance, Building exterior maintenance and landscaping.
Utilities which benefit all or a portion of the Premises.
A management and accounting cost recovery equal to ten percent (10%)
of Basic Operating Cost.
Capital expenditures made by Landlord after the Commencement Date for
the purpose of reducing recurring expenses or that are required by Laws. The
portion to be included each year in Basic Operating Cost shall be that fraction
allocable to the year in question calculated by amortizing the total cost over
the reasonable useful life of such improvement, determined in accordance with
generally accepted accounting principles, with interest on the unamortized
balance at ten percent (10%) per annum or such higher rate as may have been paid
by Landlord for funds borrowed for the purpose of constructing such improvement,
but in no event to exceed the highest rate permitted by law.
In the event that the Project is not fully occupied during any
fiscal year of the Term as determined by Landlord, an adjustment shall be made
in computing the Basic Operating Cost for such year so that Basic Operating Cost
shall be computed as though the Building had been one hundred percent (100%)
occupied; provided, however, that in no event shall Landlord be entitled to
collect in excess of one hundred percent (100%) of the total Basic Operating
Cost from all of the tenants in the Project including Tenant.
All costs and expenses shall be determined in accordance with
general accepted accounting principles which shall be consistently applied.
Basic Operating Cost shall not include the following: (i) specific costs
incurred for the account of, separately
billed to and paid by specific tenants; (ii) costs occasioned by casualties (but
not deductible amounts, all of which shall be included in Basic Operating Cost),
but only to the extent that Landlord is reimbursed from insurance proceeds;
(iii) costs incurred to comply with Laws applicable to the Project in effect and
as interpreted by government authorities prior to the Lease Date; (iv) costs
incurred in connection with negotiating and enforcing tenant leases; (v)
depreciation and expense reserves; (vi) interest, charges, fees or amortization
on mortgages or ground lease payments; (vii) subject to Paragraph 10, costs to
investigate and remediate Hazardous Substances; and (viii) unless otherwise
permitted by Paragraph 7.A.7, costs incurred by Landlord that are considered to
be capital improvements or capital replacements under generally accepted
accounting principles. Notwithstanding anything herein to the contrary, in any
instance wherein Landlord, in Landlord's reasonable discretion, deems Tenant to
be responsible for any amounts greater than its Proportionate Share, because
Landlord has determined, in its reasonable judgment, that Tenant has used or
consumed an item or service in an amount greater than its Proportionate Share,
Landlord shall have the right to allocate costs in such manner Landlord deems
appropriate and reasonable.
Payment of Estimated Basic Operating Cost. "Estimated Basic Operating Cost"
for any particular year shall mean Landlord's estimate of the Basic Operating
Cost for such fiscal year made prior to commencement of such fiscal year as
hereinafter provided. Landlord shall have the right from time to time to revise
its fiscal year and interim accounting periods so long as the periods are so
revised are reconciled with prior periods in accordance with generally accepted
accounting principles applied in a consistent manner. During the last month of
each fiscal year during the Term, or as soon thereafter as practicable, Landlord
shall give Tenant written notice of the Estimated Basic Operating Cost for
ensuing fiscal year. Tenant shall pay Tenant's Proportionate Share of the
Estimated Basic Operating Costs with installments of Base Rent for the fiscal
year to which the Estimated Basic Operating Costs applies in monthly
installments on the first day of each calendar month during such year, in
advance. If at any time during the course of the fiscal year, Landlord
determines that Basic Operating Cost will apparently vary from the then
Estimated Basic Operating Cost by more than ten percent (10%), Landlord may, by
written notice to Tenant, revise the Estimated Basic Operating Cost for the
balance of such fiscal year and Tenant shall pay Tenant's Proportionate Share of
the Estimated Basic Operating Cost as so revised for the balance of the then
current fiscal year on the first of each calendar month thereafter.
Computation of Basic Operating Cost Adjustment. "Basic
Operating Cost Adjustment" shall mean the difference between Estimated Basic
Operating Cost and Basic Operating Cost for any fiscal year determined as
hereinafter provided. Within one hundred twenty (120) days after the end of each
fiscal year, as determined by Landlord, or as soon thereafter as practicable,
Landlord shall deliver to Tenant a statement of Basic Operating Cost for the
fiscal year just ended accompanied by a computation of Basic Operating Cost
Adjustment (the "Statement"). If such statement shows that ▇▇▇▇▇▇'s payment
based upon Estimated Basic Operating Cost is less than Tenant's Proportionate
Share of Basic Operating Cost, then Tenant shall pay to
Landlord the difference within twenty (20) days after receipt of such statement.
If such statement shows that Tenant's payments of Estimated Basic Operating Cost
exceed ▇▇▇▇▇▇'s Proportionate Share of Basic Operating Costs, then provided that
Tenant is not in default under this Lease, Landlord shall pay to Tenant the
difference within twenty (20) days of such statement, or if Tenant is in
default, Landlord shall pay any amount otherwise due to Tenant if and when
Tenant cures such default. If this Lease has been terminated or the Term hereof
has expired prior to the date of such statement, then the Basic Operating Cost
Adjustment shall be paid by the appropriate party within twenty (20) days after
the date of delivery of the statement. Should this Lease commence or terminate
at any time other than the first day of the fiscal year, ▇▇▇▇▇▇'s Proportionate
Share of the Basic Operating Cost adjustment shall be prorated by reference to
the exact number of calendar days during such fiscal year for which Tenant is
obligated to pay Base Rent.
Net Lease. This shall be a net Lease and Base Rent shall be
paid to Landlord absolutely net of all costs and expenses except as herein
provided. The provisions for payment of Basic Operating Cost and the Basic
Operating Cost Adjustment are intended to pass on to Tenant and reimburse
Landlord for all costs and expenses of the nature described in Paragraph 7.A
incurred in connection with the ownership, operation, management, maintenance
and repair of the Building or Project and such additional facilities now and in
subsequent years as may be determined by Landlord to be necessary to the
Building or Project.
Landlord's Books and Records. If Tenant disputes the amount
of Basic Operating Cost stated in the Statement, Tenant may designate, within
thirty (30) days after receipt of that Statement, an independent certified
public accountant to inspect Landlord's records. Tenant shall not be entitled to
request that inspection, however, if Tenant is then in default under this Lease.
The accountant must not charge a fee based on the amount of Tenant's
Proportionate Share of Basic Operating Cost that the accountant is able to save
Tenant by the inspection. Tenant must give reasonable notice to Landlord of the
request for inspection, and the inspection must be conducted in Landlord's
offices at a reasonable time. If, after that inspection, Tenant still disputes
the amount of Basic Operating Cost, a certification of the proper amount shall
be made, at Tenant's expense (unless the certification discloses a discrepancy
of greater than five percent (5%), in which case such certification shall be at
Landlord's expense), by ▇▇▇▇▇▇▇▇'s independent certified accountant. That
certification shall be final and conclusive. If such certification discloses
that the amount of Basic Operating Cost stated in the Statement is not accurate,
then an adjustment shall be made by Landlord and Tenant so that Tenant shall be
responsible for its share of Basic Operating Cost.
INSURANCE AND
INDEMNIFICATION Casualty Insurance. ▇▇▇▇▇▇▇▇ agrees to maintain insurance
insuring the Buildings of the Project of which the Premises are a part, against
fire, lightning, extended coverage, vandalism and malicious mischief in an
amount not less than eighty percent (80%) of the replacement cost thereof. Such
insurance shall be for the sole benefit of Landlord and under its sole control.
Landlord shall not be
obligated to insure any furniture, equipment, machinery, goods or supplies not
covered by this Lease which Tenant may keep or maintain in the Premises or any
leasehold improvements, additions or alterations which Tenant may make upon the
Premises.
Liability Insurance. Tenant shall purchase at its own expense and
keep in force during this Lease a policy or policies of comprehensive liability
insurance, including personal injury and property damage, in the amount of not
less than One Million Dollars ($1,000,000.00) for property damage and Two
Million Dollars ($2,000,000.00) per occurrence for personal injuries or deaths
of persons occurring in or about the Premises and Project. Said policies shall
(1) name Landlord and, if applicable, its agent, and any party holding an
interest to which this Lease may be subordinated as additional insureds, (2) be
issued by an insurance company acceptable to Landlord and licensed to do
business in the State of California, and (3) provide that said Insurance shall
not be canceled unless thirty (30) days prior written notice shall have been
given to Landlord. Said policy or policies or certificates thereof shall be
delivered to Landlord by Tenant upon commencement of the Lease and upon each
renewal of said Insurance.
Indemnification. Landlord shall not be liable to Tenant for any loss
or damage to person or property caused by theft, fire, act of God, acts of a
public enemy, riot, strike, insurrection, war, court order, requisition or order
of governmental body or authority or for any damage or inconvenience which may
arise through repair or alteration of any part of the Building or Project or
failure to make any such repair except as expressly otherwise provided in
Paragraphs 11 and 13. Tenant shall indemnify, defend, and hold Landlord and
Landlord's Affiliates harmless from and against all Liabilities arising out of
or related to (1) claims of injury to or death of persons or damage to property
occurring or resulting directly or indirectly from the Tenant's use or occupancy
of the Premises or from activities of Tenant its agents, servants, employees, or
anyone in or about the Premises or Project, (2) claims for work or labor
performed or for materials or supplies furnished to or at the request of Tenant
or in connection with performance of any work done for the account of Tenant
within the Premises or Project and (3) claims arising from any breach or default
on the part of Tenant in the performance of any covenant contained in this
Lease. Such indemnity shall include without limitation the obligation to provide
all costs of defense against any such claims including any action or proceeding
brought against Landlord. The foregoing indemnity shall not be applicable to
claims arising from the active negligence or willful misconduct of Landlord. The
provisions of this Paragraph shall survive the expiration or termination of this
Lease with respect to any claims or liability occurring prior to such expiration
or termination.
WAIVER OF
SUBROGATION To the extent permitted by law and without affecting the coverage
provided by insurance required to be maintained hereunder, Landlord and Tenant
each waive any right to recover against the other claims arising by reason of
damage to property or damage to the Premises or any part thereof to the extent
that the same is insured under their respective insurance policies or would have
been insured if the parties had carried the insurance required to be carried by
them under the terms of this
Lease. This provision is intended to waive fully, and for the benefit of each
party, any rights and/or claims which might give rise to a right of subrogation
on any insurance carrier. The coverage obtained by each party pursuant to this
Lease shall include, without limitation, a waiver of subrogation by the carrier
which conforms to the provisions of this Paragraph.
HAZARDOUS
SUBSTANCES Tenant agrees that any and all handling, transportation, storage,
treatment, disposal, or use of Hazardous Substances (as defined below) by Tenant
in or about the Project shall strictly comply with all applicable Environmental
Laws (as defined below).
▇▇▇▇▇▇ agrees to indemnify, defend, and hold Landlord and ▇▇▇▇▇▇▇▇'s Affiliates
harmless from and against all Liabilities resulting from or arising out of the
use, storage, treatment, transportation, release, or disposal of Hazardous
Substances in, on, under or about the Project by ▇▇▇▇▇▇.
If the presence of Hazardous Substances in, on, under or about the Project
caused or permitted by Tenant results in the contamination or deterioration of
the Project or any water or soil beneath the Project, Tenant shall promptly take
all action necessary to investigate and remedy that contamination.
▇▇▇▇▇▇ agrees to promptly notify Landlord of any communication received from any
governmental entity concerning Hazardous Substances or the violation of
Environmental Laws that relate to the Project.
Tenant shall not use, handle, store, transport, generate, release, or dispose of
any Hazardous Substances in, on, under or about the Project, except that Tenant
may use (i) small quantities of common chemicals such as adhesives, lubricants,
and cleaning fluids in order to conduct business at the Premises and (ii) other
Hazardous Substances that are necessary for the operation of Tenant's business
and for which Landlord gives written consent prior to the Hazardous Substances
being brought onto the Premises (which consent is hereby given for those
Hazardous Substances listed on Exhibit E attached hereto and incorporated
herein). At any time during the Term of this Lease, Tenant shall, within ten
(10) days after written request from Landlord, disclose in writing all Hazardous
Substances that are being used by Tenant on the Project, the nature of the use,
and the manner of storage and disposal.
At any time and upon prior written notice to Tenant, Landlord may require
testing ▇▇▇▇▇ to be drilled on the Project and may require the ground water to
be tested to detect the presence of Hazardous Substances by the use of any tests
that are then customarily used for those purposes. Landlord shall supply Tenant
with copies of the test results. The cost of these tests and of the
installation, maintenance, repair, and replacement of the ▇▇▇▇▇ shall be paid by
Tenant if the tests disclose the existence of facts that give rise to liability
of Tenant pursuant to this Paragraph.
As used herein, the term "Hazardous Substances" includes without limitation: (1)
those substances included within the definitions of hazardous substance,
hazardous waste, hazardous material, toxic substance, solid waste, or pollutant
or contaminant in CERCLA, RCRA, TSCA, HMTA, or under any other Environmental
Law; (2) those substances listed in the United States Department of
Transportation (DOT) Table [49 CFR 172.101], or by the Environmental Protection
Agency (EPA), or any successor agency, as hazardous substances [40 CFR Part
302]; (3) other substances, materials, and wastes that are or become regulated
or classified as hazardous or toxic under federal, state, or local laws or
regulations; and (4) any material, waste, or substance that is (a) a petroleum
or refined petroleum product, (b) asbestos, (c) polychlorinated biphenyl, (d)
designated as a hazardous substance pursuant to 33 USCS ss. 1321 or listed
pursuant to 33 USCS ss. 1317, (e) a flammable explosive, or (f) a radioactive
material. As used herein, the term "Environmental Laws" means all federal,
state, local, or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, or requirements of any government authority
regulating, relating to, or imposing liability or standards of conduct
concerning any Hazardous Substance (as later defined), or pertaining to
occupational health or industrial hygiene (and only to the extent that the
occupational health or industrial hygiene laws, ordinances, or regulations
relate to Hazardous Substances in, on, under or about the Property),
occupational or environmental conditions on, under, or about the Property, as
now or may at any later time be in effect, including without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
(CERCLA) [42 USCS ss. 9601 et seq.]; the Resource Conservation and Recovery Act
of 1976 (RCRA) [42 USCS ss. 6901 et seq.]; the Clean Water Act, also known as
the Federal Water Pollution Control Act (FWPCA) [33 USCS ss. 1251 et seq.]; the
Toxic Substances Control Act (TSCA) [15 USCS ss. 2601 et seq.]; the Hazardous
Materials Transportation Act (HMTA) [49 USCS ss. 1801 et seq.]; the Insecticide,
Fungicide, Rodenticide Act [7 USCS ss. 136 et seq.]; the Superfund Amendments
and Reauthorization Act [42 USCS ss. 6901 et seq.]; the Clean Air Act [42 USCS
ss. 7401 et seq.]; the Safe Drinking Water Act [42 USCS ss. 300f et seq.]; the
Solid Waste Disposal Act [42 USCS ss. 6901 et seq.]; the Surface Mining Control
and Reclamation Act [30 USCS ss. 1201 et seq.]; the Emergency Planning and
Community Right to Know Act [42 USCS ss. 11001 et seq.]; the Occupational Safety
and Health Act [29 USCS ss. 655 and 657]; the California Underground Storage of
Hazardous Substances Act [H & S C ss. 25280 et seq.]; the California Hazardous
Substances Account Act [H & S C ss. 25300 et seq.]; the California Hazardous
Waste Control Act [H & S C ss. 25100 et seq.]; the California Safe Drinking
Water and Toxic Enforcement Act [H & S C ss. 24249.5 et seq.]; the
▇▇▇▇▇▇-Cologne Water Quality Act [Wat C ss. 13000 et seq.] together with any
amendments of or regulations promulgated under the statutes cited above and any
other federal, state, or local law, statute, ordinance, or regulation now in
effect or later enacted that pertains to occupational health or industrial
hygiene, and only to the extent that the occupational health or industrial
hygiene laws, ordinances, or regulations relate to Hazardous Substances in, on,
under or about the Property, or the regulation or protection of the environment,
including ambient air, soil, soil vapor, groundwater, surface water, or land
use.
Landlord represents to Tenant that, to the best of Landlord's actual knowledge
without
independent investigation or inquiry, as of the Lease Date, Landlord is not
aware of the presence of Hazardous Substances in, on or under the Project in
violation of Environmental Laws.
LANDLORD'S
REPAIRS AND
SERVICES Subject to Paragraphs 24 and 25, Landlord shall, as part of Basic
Operating Cost (to the extent permitted by Paragraph 7), repair and maintain in
good repair (reasonable wear and tear excepted): (a) the roof, foundations and
exterior walls of the Building and all other structural elements of the
Building, (b) the public and common areas of the Building and Project including,
but not limited to, the landscaped areas, parking areas, driveways, the truck
staging areas, fire sprinkler systems, sanitary and storm sewer lines, utility
services, electric and telephone equipment servicing the Building(s), exterior
lighting, and anything which affects the operation and exterior appearance of
the Project, which determination shall be at Landlord's sole discretion; (c)
building systems not exclusively serving the Premises; (d) construction defects;
and (e) repairs, replacement and maintenance to the roof membrane (but excluding
any repair, replacement or maintenance of or to any penetrations to the roof
membrane made by or on behalf of Tenant). The term "walls" as used herein shall
not include windows, glass or plate glass, doors, special store fronts or office
entries. The term "roof" as used herein shall not include skylights, smoke
hatches or roof vents. Subject to Paragraph 9, any damage caused by or repairs,
maintenance or replacement necessitated in whole or in part by the act, neglect,
fault or omission of Tenant or by Tenant's Alterations, may be repaired by
Landlord at Landlord's option and at ▇▇▇▇▇▇'s expense. Tenant shall immediately
give Landlord written notice of any defect or need of repairs governed by this
Paragraph after which Landlord shall have reasonable opportunity to repair same.
Landlord's liability with respect to any defects, repairs, or maintenance for
which Landlord is responsible under any of the provisions of this Lease shall be
limited to the cost of such repairs or maintenance. Notwithstanding anything to
the contrary contained in this Lease, in the event of any damage to the roof
membrane caused by, or repairs, maintenance or replacement of the roof membrane
necessitated by, the act, neglect, fault or omission of Tenant or by Tenant's
Alterations (including, without limitation, any damage to the roof membrane
resulting from Tenant's maintenance and repair of its HVAC unit(s)), the repair,
maintenance and/or replacement of the same shall be the sole responsibility of
Tenant and may, at Landlord's option, be performed by Landlord (but at Tenant's
sole cost and expense).
TENANT'S
REPAIRS Tenant shall, at Tenant's expense, maintain all parts of the Premises in
a good, clean and secure condition promptly making all necessary repairs and
replacements including, but not limited to, all windows, glass, doors and any
special office entries, walls and wall finishes, floor covering, heating,
ventilating and air conditioning systems, truck doors, dock bumpers, dock plates
and levelers, roofing, plumbing work and fixtures, down spouts, skylights, smoke
hatches and roof vents. Tenant shall, at Tenant's expense, also perform
necessary pest extermination and regular removal of trash and debris. Tenant
shall, at its own expense, enter into a regularly scheduled preventive
maintenance/service contract with a maintenance contractor for
servicing all hot water, heating and air conditioning systems and equipment
within or serving the Premises. The maintenance contractor and the contract must
be approved by Landlord. The service contract must include all services
suggested by the equipment manufacturer within the operation/maintenance manual,
including maintaining the system and ducts in a weatherproof condition, and must
become effective and a copy thereof delivered to Landlord within thirty (30)
days of the Term Commencement Date. Tenant shall not damage any demising wall or
disturb the integrity and support provided by any demising wall and shall, at
its sole expense, immediately repair any damage to any demising wall caused by
Tenant or its employees, agents or invitees. Tenant shall not be required to
repair or restore the Premises in the event of a casualty except to the extent
of insurance proceeds payable to Tenant on account of Tenant's Alterations (as
defined below).
Tenant, at its sole cost and expense, shall have the benefit of any construction
or equipment warranties existing in favor of Landlord that would assist Tenant
in correcting any defect in the Premises and in satisfying its obligation
regarding the repair and maintenance of the Premises. Landlord, at Tenant's sole
cost and expense, shall cooperate with Tenant in enforcing such warranties and
in bringing any suit against a third party that may be necessary to enforce its
rights under this paragraph.
ALTERATIONS Tenant shall not make, or allow to be made, any improvements,
alterations or physical additions in, about or to the Premises (collectively,
"Tenant's Alterations") without obtaining the prior written consent of Landlord,
which consent shall not be unreasonably withheld or delayed. Specifically, but
without limiting the generality of the foregoing, Landlord shall have the right
of consent for all plans and specifications for the proposed improvements,
alterations or additions, construction means and methods, any contractor or
subcontractor to be employed on the work of alterations or additions, and the
time for performance of such work. Tenant shall also supply to Landlord any
documents and information reasonably requested by Landlord in connection with
its consideration of a request for approval hereunder. Tenant must have
Landlord's written approval and all appropriate permits and licenses prior to
the commencement of said improvements, alterations and additions. All
improvements, alterations and additions permitted hereunder shall be made and
performed by Tenant without cost or expense to Landlord (including any costs or
expenses which Landlord may incur in electing to have an outside agency review
said plans and specifications). Landlord shall have the right to require Tenant
to remove any or all alterations, additions, improvements and partitions made by
Tenant and restore the Premises to their original condition by the termination
of this Lease, by lapse of time or otherwise, all at Tenant's sole cost and
expense (provided that Landlord notifies Tenant of its intent to require such
removal and restoration at the time Landlord approves of the same). All such
removals and restoration shall be accomplished in a good workmanlike manner so
as not to cause any damage to the Premises or Project whatsoever. If Landlord so
elects, such alterations, physical additions or improvements shall become the
property of Landlord and surrendered to Landlord upon the termination of this
Lease by lapse of time or otherwise; provided, however, that this clause shall
not apply to trade fixtures or furniture owned by Tenant. In addition to and
wholly apart from its obligation to pay Tenant's
Proportionate Share of Basic Operating Costs, Tenant shall be responsible for
and shall pay prior to delinquency any taxes or governmental service fees,
possessory interest taxes, fees or charges in lieu of any such taxes, capital
levies, or other charges imposed upon, levied with respect to or assessed
against its personal property, on the value of its alterations, additions or
improvements and on its interest pursuant to this Lease. To the extent that any
such taxes are not separately assessed or billed to Tenant, Tenant shall pay the
amount thereof as invoiced to Tenant by Landlord.
SIGNS All signs, notices and graphics of every kind or character, visible in or
from public view or corridors, the common areas or the exterior of the Premises,
shall be subject to Landlord's prior written approval, which Landlord shall have
the right to withhold in its absolute and sole discretion; provided, however,
that Tenant shall have the right to "storefront" signage consistent with the
rights granted to other tenants at the Project as of the Lease Date. All
approved signage shall conform to the requirements in the Sign Criteria set
forth in Exhibit G attached hereto and incorporated herein. Tenant shall not
place or maintain any banners whatsoever or any window decor in or on any
exterior window or window fronting upon any common areas or service area or upon
any truck doors or man doors without Landlord's prior written approval which
Landlord shall have the right to grant or withhold in its absolute and sole
discretion. Any installation of signs or graphics on or about the Premises and
Project shall be subject to any applicable governmental laws, ordinances,
regulations and to any other requirements imposed by Landlord. Tenant shall
remove all such signs and graphics by the termination of this Lease. Such
installations and removals shall be made in such manner as to avoid injury to or
defacement of the Premises, Building or Project and any other improvements
contained therein, and Tenant shall repair any injury or defacement including,
without limitation, discoloration caused by such installation or removal.
INSPECTION/
POSTING NOTICES After reasonable notice, except in emergencies where no such
notice shall be required, Landlord, its agents and representatives, shall have
the right to enter the Premises to inspect the same, to clean, to perform such
work as may be permitted or required hereunder, to make repairs or alterations
to the Premises or Project or to other tenant spaces therein, to deal with
emergencies, to post such notices as may be permitted or required by law to
prevent the perfection of liens against Landlord's interest in the Project or to
exhibit the Premises to prospective tenants (during the last six (6) months of
the Term of the Lease), purchasers, encumbrances or others, or for any other
purpose as Landlord may deem necessary or desirable. Tenant shall not be
entitled to any abatement of Rent or other relief by reason of the exercise of
any such right of entry. To the extent reasonably practicable, Landlord shall
exercise its rights under this Paragraph in such manner as to minimize the
impact on Tenant's business in the Premises. Six (6) months prior to the end of
the Lease, Landlord shall have the right to erect on the Premises and/or Project
a suitable sign indicating that the Premises are available for lease. Tenant
shall give written notice to Landlord at least thirty (30) days prior to
vacating the Premises and shall meet with Landlord for a joint inspection of the
Premises at the time of vacating. In the event of ▇▇▇▇▇▇'s failure to give such
notice or participate in such joint inspection, Landlord's inspection at or
after ▇▇▇▇▇▇'s vacating
the Premises shall conclusively be deemed correct for purposes of determining
Tenant's responsibility for repairs and restoration.
UTILITIES Tenant shall pay for all water, gas, heat, air conditioning, light,
power, telephone, sewer, sprinkler charges and other utilities and services used
on or from the Premises, together with any taxes, penalties, surcharges or the
like pertaining thereto, and maintenance charges for utilities and shall furnish
all electric light bulbs, ballasts and tubes. If any such services are not
separately metered to Tenant, Tenant shall pay a reasonable proportion, as
determined by Landlord, of all charges jointly serving other premises. Landlord
shall not be liable for any damages directly or indirectly resulting from nor
shall the Rent or any monies owed Landlord under this Lease herein reserved be
abated by reason of (a) the installation, use or interruption of use of any
equipment used in connection with the furnishing of any of the foregoing
utilities and services, (b) failure to furnish or delay in furnishing any such
utilities or services when such failure or delay is caused by acts of God or the
elements, labor disturbances of any character, any other accidents or other
conditions beyond the reasonable control of Landlord, or (c) the limitation,
curtailment, rationing or restriction on use of water, electricity, gas or any
other form of energy or any other service or utility whatsoever serving the
Premises or Project. Landlord shall be entitled to cooperate voluntarily and in
a reasonable manner in the efforts of national, state or local governmental
agencies or utility suppliers in reducing energy or other resource consumption.
The obligation to make services available hereunder shall be subject to the
limitations of any such voluntary, reasonable program.
SUBORDINATION Without the necessity of any additional document being executed by
Tenant for the purpose of effecting a subordination, this Lease shall be subject
and subordinate at all times to (a) all ground leases or underlying leases which
may now exist or hereafter be executed affecting the Premises and/or the land
upon which the Premises and Project are situated, or both, and (b) any mortgage
or deed of trust which may now exist or be placed upon said Project, land,
ground leases or underlying leases, or Landlord's interest or estate in any of
said items, which is specified as security (provided that ▇▇▇▇▇▇ receives a
nondisturbance agreement from Landlord's lender or ground lessor). As of the
Lease Date, there is no mortgage or deed of trust existing on the Project, land,
or ▇▇▇▇▇▇▇▇'s interest or estate therein. Notwithstanding the foregoing,
Landlord shall have the right to subordinate or cause to be subordinated any
such ground leases or underlying leases or any such liens to this Lease. In the
event that any ground lease or underlying lease terminates for any reason or any
mortgage or deed of trust is foreclosed or a conveyance in lieu of foreclosure
is made for any reason, Tenant shall, notwithstanding any subordination, attorn
to and become the Tenant of the successor in interest to Landlord at the option
of such successor in interest. Tenant shall execute and deliver, upon demand by
▇▇▇▇▇▇▇▇ and in the form reasonably requested by Landlord, any additional
documents evidencing the priority of subordination of this Lease with respect to
any such ground leases or underlying leases or any such mortgage or deed of
trust.
FINANCIAL
STATEMENTS At the request of Landlord, Tenant shall provide to Landlord its
current financial statements or other information discussing financial worth
which Landlord shall use solely for purposes of this Lease and in connection
with the ownership, management and disposition of the property subject hereto.
ESTOPPEL
CERTIFICATES Tenant agrees from time to time within ten (10) days after request
of Landlord, to deliver to Landlord, or Landlord's designee, an estoppel
certificate stating that this Lease is in full force and effect, the date to
which Rent has been paid, the unexpired portion of this Lease and such other
matters pertaining to this Lease as may be reasonably requested by Landlord.
Failure by Tenant to execute and deliver such certificate shall constitute an
acceptance of the Premises and acknowledgment by Tenant that the statements
included are true and correct without exception. Landlord and ▇▇▇▇▇▇ intend that
any statement delivered pursuant to this Paragraph may be relied upon by any
mortgagee, beneficiary, purchaser or prospective purchaser of the Project or any
interest therein. The parties agree that ▇▇▇▇▇▇'s obligation to furnish such
estoppel certificates in a timely fashion is a material inducement for
Landlord's execution of the Lease.
SECURITY
DEPOSIT ▇▇▇▇▇▇ agrees to deposit with Landlord upon execution of this Lease, a
Security Deposit as stated in the Basic Lease Information which sum shall be
held by Landlord, without obligation for interest, as security for the
performance of Tenant's covenants and obligations under this Lease, it being
expressly understood and agreed that such deposit is not an advance rental
deposit or a measure of damages incurred by Landlord in case of ▇▇▇▇▇▇'s
default. Upon the occurrence of any event of default by Tenant, Landlord may,
from time to time, without prejudice to any other remedy provided herein or
provided by law, use such fund to the extent necessary to make good any arrears
of Rent or other payments due to Landlord hereunder, and any other damage,
injury, expense or liability caused by such event of default, and Tenant shall
pay to Landlord, on demand, the amount so applied in order to restore the
Security Deposit to its original amount. Any remaining balance of such deposit
shall be returned by Landlord to Tenant at such time after termination of this
Lease that all of the Tenant's obligations under this Lease have been fulfilled.
TENANT'S
REMEDIES Tenant shall look solely to Landlord's interest in the Project for
recovery of any judgment from Landlord. Landlord and Landlord's Affiliates shall
never be personally liable for any such judgment.
ASSIGNMENT AND
SUBLETTING Tenant shall not assign or sublet the Premises or any part thereof
without Landlord's prior written approval except as provided herein. If Tenant
desires to assign this Lease or sublet any or all of the Premises, Tenant shall
give Landlord written notice thirty (30) days prior to the anticipated effective
date of the assignment or sublease. Landlord shall then have a period of fifteen
(15) days following
receipt of such notice to notify Tenant in writing that Landlord elects either
(1) to terminate this Lease as to the space so affected as of the date so
requested by ▇▇▇▇▇▇ (except in the event of an assignment to an Affiliate (as
hereinafter defined)), or (2) to permit Tenant to assign this Lease or sublet
such space, subject, however, to Landlord's prior written approval of the
proposed assignee or subtenant and of any related documents or agreements
associated with the assignment or sublease, such consent not to be unreasonably
withheld so long as Tenant provides data and documentation reasonably
satisfactory to Landlord that demonstrates that the use of the Premises by such
proposed assignee or subtenant would be a Permitted Use, and the proposed
assignee or subtenant is of sound financial condition (determined in Landlord's
reasonable judgment).
Any Rent or other consideration realized by Tenant under any
such sublease or assignment (except to an Affiliate) in excess of the Rent
payable hereunder, after deducting the amortization of (1) the reasonable cost
of any improvements which ▇▇▇▇▇▇ has made for the purpose of assigning or
subletting all or part of the Premises and (2) reasonable subletting and
assignment costs, shall be divided and paid fifty percent (50%) to Tenant, fifty
percent (50%) to Landlord.
If Tenant is a closely held corporation (i.e., one whose stock
is not publicly held and not traded through an exchange or over the counter), a
transfer of corporate shares by sale, assignment, bequest, inheritance,
operation of law or other disposition (including such a transfer to or by a
receiver or trustee in federal or state bankruptcy, insolvency or other
proceedings), in one or a series of related transactions, so as to result in a
change in the present control of such corporation or any of its parent
corporations by the person or persons owning a majority of said corporate
shares, shall constitute an assignment for purposes of this Paragraph.
If Tenant is a partnership, joint venture or other
unincorporated business form, a transfer of the interest of persons, firms or
entities responsible for managerial control of Tenant by sale, assignment,
bequest, inheritance, or operation of law or other disposition, so as to result
in a change in the present control of said entity and/or a change in the
identity of the persons responsible for the general credit obligations of said
entity shall constitute an assignment for all purposes of this Paragraph.
No assignment or subletting by Tenant shall relieve Tenant of
any obligations under this Lease. Any assignment or subletting which conflicts
with the provisions hereof shall be void.
Notwithstanding the foregoing, ▇▇▇▇▇▇▇▇'s consent shall not be
required for any assignment of the Lease or sublet of the Premises (either, a
"Transfer") to an Affiliate, as long as the following conditions are met:
At least fifteen (15) business days before the Transfer,
Landlord receives written notice of the Transfer (as well as any documents or
information reasonably requested by Landlord regarding the Transfer or the
Affiliate);
The Transfer is not a subterfuge by Tenant to avoid its
obligations or liabilities under the Lease;
The Affiliate assumes in writing all of Tenant's obligations
under this Lease relating to the portion of the Premises being assigned or
sublet; and
The Affiliate has a net worth immediately following the
Transfer, as evidenced by financial statements delivered to Landlord and
certified by an independent certified public accountant in accordance with
generally accepted accounting principles that are consistently applied ("Net
Worth") at least equal to Tenant's Net Worth either immediately before the
transfer or as of the date of this Lease, whichever is greater.
As used herein, the term "Affiliate" means any entity that (a)
controls, is controlled by, or is under common control with Tenant; (b) results
from the purchase of all or substantially all of Tenant's assets or stock; or
(c) results from the merger or consolidation of Tenant with another entity.
"Control" means the direct or indirect ownership of more than fifty percent
(50%) of the voting securities of an entity or possession of the right to vote
more than fifty percent (50%) of the voting interest in the entity.
QUIET
ENJOYMENT Landlord represents that it has full right and authority to enter into
this Lease and that Tenant, upon paying the Rent and performing its other
covenants and agreements herein set forth, shall peaceably and quietly have,
hold and enjoy the Premises for the Term hereof without hindrance or molestation
from Landlord, subject to the terms and provisions of this Lease.
CONDEMNATION If the whole, or any substantial portion of the Project of which
the Premises are a part, should be taken or condemned for any public use under
governmental law, ordinance, or regulation, or by right of eminent domain, or by
private purchase in lieu thereof, and the taking would prevent or materially
interfere with the Permitted Use of the Premises, this Lease shall terminate and
the Rent shall be abated during the unexpired portion of this Lease, effective
when the physical taking of said Premises shall have occurred.
If a portion of the Project of which the Premises are a part
should be taken or condemned for any public use under any governmental law,
ordinance, or regulation, or by right of eminent domain, or by private purchase
in lieu thereof, and this Lease is not terminated as provided in Paragraph 24.A
above, this Lease shall not terminate, but the Rent payable hereunder during the
unexpired portion of the Lease shall be reduced to such extent as may be fair
and reasonable under all of the circumstances.
Landlord shall be entitled to any and all payment, income,
rent, award, or any interest therein whatsoever which may be paid or made in
connection with such
taking or conveyance and Tenant shall have no claim against Landlord or
otherwise for the value of any unexpired portion of this Lease. Notwithstanding
the foregoing, any compensation specifically awarded Tenant for personal
property or moving costs shall be and remain the property of Tenant so long as
Landlord's award is not reduced thereby.
CASUALTY
DAMAGE If the Premises should be damaged or destroyed by fire, tornado or other
casualty, Tenant shall give immediate written notice thereof to Landlord. Within
thirty (30) days of such notice, Landlord shall notify Tenant whether in
Landlord's opinion such repairs can be made either (1) within ninety (90) days,
(2) in more than ninety (90) days, but in less than one hundred eighty (180)
days, or (3) in more than one hundred eighty (180) days from the date of such
notice; Landlord's determination shall be binding on Tenant.
If the Premises should be damaged by fire, tornado or other
casualty but only to such extent that rebuilding or repairs can in Landlord's
estimation be completed within ninety (90) days after the date upon which
Landlord is notified by Tenant of such damage, this Lease shall not terminate,
and Landlord shall with reasonable diligence to rebuild and repair the Premises
to substantially the condition in which they existed prior to such damage (to
the extent permitted by then-applicable Laws), except that Landlord shall not be
required to rebuild, repair or replace any part of the partitions, fixtures,
additions and other improvements which may have been placed in, on or about the
Premises by Tenant. If the Premises are untenantable in whole or in part
following such damage, the Rent payable hereunder during the period in which
they are untenantable shall be reduced to such extent as may be fair and
reasonable under all of the circumstances.
If the Premises should be damaged by fire, tornado or other
casualty, but only to such extent that rebuilding or repairs can in Landlord's
estimation be completed in more than ninety (90) days but in less than one
hundred eighty (180) days, then Landlord shall have the option of either (1)
terminating the Lease effective upon the date of the occurrence of such damage,
in which event the Rent shall be abated during the unexpired portion of the
Lease, or (2) electing to rebuild or repair the Premises to substantially the
condition in which they existed prior to such damage except that Landlord shall
not be required to rebuild, repair or replace any part of the partitions,
fixtures, additions and other improvements which may have been placed in, on or
about the Premises by Tenant. If the Premises are untenantable in whole or in
part following such damage, the Rent payable hereunder during the period in
which they are untenantable shall be reduced to such extent as may be fair and
reasonable under all of the circumstances. In the event that Landlord should
fail to complete such repairs and rebuilding within one hundred eighty (180)
days after the date upon which Landlord is notified by Tenant of such damage,
such period of time to be extended for delays caused by the fault or neglect of
Tenant or because of acts of God, acts of public agencies, labor disputes,
strikes, fires, freight embargoes, rainy or stormy weather, inability to obtain
materials, supplies or fuels, or delay of the contractors or subcontractors due
to such causes or other contingencies beyond the reasonable control of Landlord,
Tenant may at its option terminate this Lease by delivering thirty (30) days
prior written notice of
termination to Landlord as Tenant's exclusive remedy, whereupon all rights and
obligations hereunder shall cease and terminate.
If the Premises should be so damaged by fire, tornado, or
other casualty that rebuilding or repairs cannot in Landlord's estimation be
completed within one hundred eighty (180) days after the date upon which
Landlord is notified by Tenant of such damage, this Lease shall terminate and
the Rent shall be abated during the unexpired portion of this Lease, effective
upon the date of the occurrence of such damage.
Notwithstanding anything herein to the contrary, in the
event that the holder of any indebtedness secured by a mortgage or deed of trust
covering the Premises requires that the insurance proceeds be applied to such
indebtedness, then Landlord shall have the right to terminate this Lease by
delivering written notice of termination to Tenant within fifteen (15) days
after such requirement it made by any such holder, whereupon all rights and
obligations hereunder shall cease and terminate. In addition, Landlord may elect
to terminate this Lease if the estimated repair cost exceeds the insurance
proceeds, if any, available for such repair (not including the deductible, if
any, on Landlord's property insurance), plus any amount that Tenant is obligated
or elects to pay for such repair.
Notwithstanding anything herein to the contrary, in the event
of earthquake casualty, one of the following shall apply:
1. If Substantial Destruction (as defined below) of the
Premises occurs as a result of an earthquake casualty, and if Landlord is not
then carrying earthquake insurance for the Building, either Landlord or Tenant
may terminate this Lease by giving written notice to the other party within
thirty (30) days after Substantial Destruction. If neither party terminates the
Lease due to Substantial Destruction, the Premises shall be repaired as
otherwise provided in this Article 12. As used herein, "Substantial Destruction"
shall mean damage and/or destruction of the Premises greater than fifty percent
(50%) either in terms of reconstruction cost to fair market value or total
square footage.
2. In the event of damage and/or destruction to the Premises
as a result of earthquake casualty that does not rise to the level of
Substantial Destruction, and if Landlord is not then carrying earthquake
insurance for the Building, Tenant's obligation to pay for associated repair
and/or restoration pursuant to the terms of this Lease shall not exceed $25,000
per year.
3. In the event of damage and/or destruction to the Premises
as a result of earthquake casualty, and if Landlord is then carrying earthquake
insurance, Tenant's obligation to reimburse Landlord for any portion of the
deductible amount under ▇▇▇▇▇▇▇▇'s earthquake insurance policy shall not exceed
$25,000 per year.
Except as expressly provided in this Lease, damage to or
destruction of the Premises, the Building, or the Project shall not terminate
this Lease or result in any
abatement of rentals. Tenant waives any right to terminate this Lease and any
right of offset against Tenant's rental obligations that may be provided by any
statute or rule of law in connection with Landlord's duties of repair and
restoration under the provisions of this Lease. If this Lease is terminated by
either party pursuant to the terms of this Article 12, Tenant shall not be
obligated to pay any portion of the deductible amount attributable to the
casualty triggering such termination right.
HOLDING OVER If Tenant shall retain possession of the Premises or any portion
thereof without Landlord's written consent following the expiration of the Lease
or sooner termination for any reason, then (1) such holding over shall be a
tenancy at sufferance and not for any periodic or fixed term; and (2) Tenant
shall pay to Landlord for each day of such retention twice the amount of the
daily rental for the first month prior to the date of expiration or termination.
Tenant shall also indemnify, defend and hold Landlord and Landlord's Affiliates
harmless from and against any Liabilities resulting from delay by Tenant in
surrendering the Premises, including, without limitation, any claims made by any
succeeding tenant founded on such delay. Alternatively, if Landlord gives
written notice of ▇▇▇▇▇▇▇▇'s consent to ▇▇▇▇▇▇'s holding over, such holding over
shall constitute renewal of the Lease on a month to month basis (except as
otherwise agreed to by Landlord and Tenant in writing) on the terms and
conditions contained in this Lease except as provided above and excluding any
options or rights of Tenant to renew or extend this Lease or expand the Premises
that may be given to Tenant under the terms of this Lease. Acceptance of Rent by
Landlord following expiration or termination of this Lease shall not constitute
a renewal of this Lease, and nothing contained in this Paragraph shall waive
Landlord's right of reentry or any other right. Unless Landlord exercises the
option hereby given to it in writing, Tenant shall be only a tenant at
sufferance, whether or not Landlord accepts any Rent from Tenant while Tenant is
holding over without ▇▇▇▇▇▇▇▇'s written consent. Additionally, in the event that
upon termination of the Lease, Tenant has not fulfilled its obligation with
respect to repairs and cleanup of the Premises or any other Tenant obligations
as set forth in this Lease, then Landlord shall have the right to perform any
such obligations as it deems necessary at Tenant's sole cost and expense, and
any time required by Landlord to complete such obligations shall be considered a
period of holding over and the terms of this Paragraph shall apply.
DEFAULT Events of Default. The occurrence of any of the following shall
constitute an event of default on the part of Tenant:
Abandonment. Abandonment of the Premises as defined in Section
1951.3 of the Civil Code of the State of California.
Nonpayment of Rent. Failure to pay when due any installment of
Rent or any other amount due and payable hereunder if the failure continues for
three (3) days after written notice of the failure from Landlord to Tenant.
Other Obligations. Failure to perform any obligations,
agreement or covenant under this Lease other than those matters specified in
subparagraphs (1) and
(2) of this Paragraph 27.A, such failure continuing for fifteen (15) days after
written notice of such failure, or such longer period as Landlord reasonably
determines to be necessary to remedy such default, provided that Tenant shall
continuously and diligently pursue such remedy at all times until such default
is cured.
General Assignment. A general assignment by ▇▇▇▇▇▇ for the
benefit of creditors.
Bankruptcy. The filing of any voluntary petition in bankruptcy
by ▇▇▇▇▇▇, or the filing of an involuntary petition by ▇▇▇▇▇▇'s creditors, which
involuntary petition remains undischarged for a period of thirty (30) days. In
the event that under applicable law, the trustee in bankruptcy or Tenant has the
right to affirm this Lease and continue to perform the obligation of Tenant
hereunder, such trustee or Tenant shall, in such time period as may be permitted
by the bankruptcy court having jurisdiction, cure all defaults of Tenant
hereunder outstanding as of the date of the affirmance of this Lease and provide
to Landlord such adequate assurances as may be necessary to ensure Landlord of
the continued performance of Tenant's obligations under this Lease.
Receivership. The employment of a receiver to take possession
of substantially all of Tenant's assets of the Premises, if such attachment or
other seizure remains undismissed or undischarged for a period of ten (10) days
after the levy thereof.
Attachment. The attachment, execution or other judicial
seizure of all or substantially all of Tenant's assets of the Premises, if such
attachment or other seizure remains undismissed or undischarged for a period of
ten (10) days after the levy thereof.
Remedies Upon Default.
Rent. All failures to pay any monetary obligation to be paid
by Tenant under this Lease shall be construed as obligations for payment of
Rent.
Termination. In the event of the occurrence of any event of
default, Landlord shall have the right, with or without notice or demand, to
immediately terminate this Lease, and at any time thereafter recover possession
of the Premises or any part thereof and expel and remove therefrom Tenant and
any other person occupying the same, by any lawful means, and again repossess
and enjoy the Premises without prejudice to any of the remedies that Landlord
may have under this Lease, or at law or equity by reason of Tenant's default or
of such termination.
Continuation After Default. Even though ▇▇▇▇▇▇ has breached
this Lease and/or abandoned the Premises, this Lease shall continue in effect
for so long as Landlord does not terminate Tenant's right to possession under
Paragraph 27.B(2) hereof, and Landlord may enforce all its rights and remedies
under this Lease, including, but without limitation, the right to recover Rent
as it becomes due, and Landlord, without
terminating this Lease, may exercise all of the rights and remedies of a
Landlord under Section 1951.4 of the Civil Code of the State of California or
any successor code section. Acts of maintenance preservation or efforts to lease
the Premises or the appointment of a receiver upon application of Landlord to
protect ▇▇▇▇▇▇▇▇'s interest under this Lease shall not constitute an election to
terminate Tenant's right to possession.
Damages Upon Termination. Should Landlord terminate this
Lease pursuant to the provisions of Paragraph 27.B(2) hereof, Landlord shall
have all the rights and remedies of a Landlord provided by Section 1951.2 of the
Civil Code of the State of California, or successor code sections. Upon such
termination, in addition to any other rights and remedies to which Landlord may
be entitled under applicable law, Landlord shall be entitled to recover from
Tenant: (1) the worth at the time of award of the unpaid Rent and other amounts
which had been earned at the time of termination, (2) the worth at the time of
award of the amount by which the unpaid Rent which would have been earned after
termination until the time of award exceeds the amount of such Rent loss that
the Tenant proves could have been reasonably avoided, (3) 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 Rent loss that the Tenant
proves could be reasonably avoided, and (4) any other amount necessary to
compensate Landlord for all the detriment proximately caused by ▇▇▇▇▇▇'s failure
to perform its obligations under the Lease or which, in the ordinary course of
things, would be likely to result therefrom. The "worth at the time of award" of
the amounts referred to in (1) and (2) above shall be computed with interest at
the maximum rate allowed by law. The "worth at the time of award" of the amount
referred to in (3) above shall be computed by discounting such amount at the
Federal Discount Rate of the Federal Reserve Bank of San Francisco at the time
of the award plus one percent (1%).
Late Charge. In addition to its other remedies, Landlord
shall have the right without notice or demand to add to the amount of any
payment required to be made by Tenant hereunder, and which is not paid on or
before the date the same is due, an amount equal to five percent (5%) of the
delinquency for each month or portion thereof that the delinquency remains
outstanding to compensate Landlord for the loss of the use of the amount not
paid and the administrative costs caused by the delinquency, the parties
agreeing that Landlord's damage by virtue of such delinquencies would be
difficult to compute and the amount stated herein represents a reasonable
estimate thereof.
Interest on Past Due Obligations. Any amount that is due to
Landlord and not paid when due shall bear interest from the date due at the
maximum rate then allowable by law; provided, however, that interest shall not
be payable on late charges incurred by ▇▇▇▇▇▇. Payment of the interest shall not
cure any default by Tenant under this Lease.
Remedies Cumulative. All rights, privileges and elections of
remedies of the parties are cumulative and not alternative to the extent
permitted by law and except as otherwise provided herein.
LIENS Tenant shall keep the Premises free from liens arising out of or related
to work performed, materials or supplies furnished or obligations incurred by
Tenant or in connection with work made, suffered or done by Tenant in or on the
Premises or Project. In the event that Tenant shall not, within ten (10) days
following the imposition of any such lien, cause the same to be released of
record by payment or posting of a proper bond, Landlord shall have, in addition
to all other remedies provided herein and by law, the right, but not the
obligation, to cause the same to be released by such means as it shall deem
proper, including payment of the claim giving rise to such lien. All sums paid
by ▇▇▇▇▇▇▇▇ on behalf of Tenant and all expenses incurred by Landlord in
connection therewith shall be payable to Landlord by Tenant on demand with
interest at the maximum rate allowable by law. Landlord shall have the right at
all times to post and keep posted on the Premises any notices permitted or
required by law, or which Landlord shall deem proper, for the protection of
Landlord, the Premises, the Project and any other party having an interest
herein, from mechanics' and materialmen's liens, and Tenant shall give Landlord
not less than ten (10) business days prior written notice of the commencement of
any work in the Premises or Project which could lawfully give rise to a claim
for mechanics' or materialmen's lien.
SUBSTITUTION INTENTIONALLY OMITTED
TRANSFERS BY
LANDLORD In the event of a sale or conveyance by Landlord of the Project, the
same shall operate to release Landlord from any liability upon any of the
covenants or conditions, express or implied, herein contained in favor of ▇▇▇▇▇▇
(provided that the transferee agrees to assume ▇▇▇▇▇▇▇▇'s obligations under the
Lease), and in such event ▇▇▇▇▇▇ agrees to look solely to the responsibility of
the successor in interest of Landlord in and to this Lease. This Lease shall not
be affected by any such sale and ▇▇▇▇▇▇ agrees to attorn to the purchaser or
assignee.
RIGHT OF
LANDLORD TO
PERFORM TENANT'S
COVENANTS All covenants and agreements to be performed by Tenant under any of
the terms of this Lease shall be performed by ▇▇▇▇▇▇, at Tenant's sole cost and
expense, and without any abatement of Rent. If Tenant shall fail to pay any sum
of money other than Rent, required to be paid by it hereunder, or shall fail to
perform any other act on its part to be performed hereunder, and such failure
shall continue for five (5) days after notice thereof by Landlord, Landlord may,
but shall not be obligated to do so, and without waiving or releasing Tenant
from any obligations of the Tenant, make any such payment or perform any such
act on the Tenant's part to be made or performed. All sums so paid by ▇▇▇▇▇▇▇▇
and all necessary incidental costs together with interest thereon at the maximum
rate permitted by law from the date of such payment by the Landlord shall be
payable to Landlord on demand, and Tenant covenants to pay such sums, and
Landlord shall have, in addition to any other right or remedy of Landlord, the
same rights and remedies in the event of the nonpayment thereof by Tenant as in
the case of default by Tenant in the payment of Rent.
WAIVER If Landlord waives the performance of any term, covenant or condition
contained in this Lease, such waiver shall not be deemed to be a waiver of any
subsequent breach of the same or any other term, covenant or condition contained
herein. The acceptance of Rent by Landlord shall not constitute a waiver of any
preceding breach by Tenant of any term, covenant or condition of this Lease,
regardless of Landlord's knowledge of such preceding breach at the time Landlord
accepted such Rent. Failure by Landlord to enforce any of the terms, covenants
or conditions of this Lease for any length of time shall not be deemed to waive
or to decrease the right of Landlord to insist thereafter upon strict
performance by ▇▇▇▇▇▇. Waiver of Landlord of any term, covenant or condition
contained in this Lease may only be made by a written document signed by
Landlord.
NOTICES Each provision of this Lease or of any applicable governmental laws,
ordinances, regulations and other requirements with reference to the sending,
mailing or delivery of any notice or the making of any payment by Landlord or
Tenant to the other shall be deemed to be complied with when and if the
following steps are taken:
All Rent and other payments required to be made by Tenant to
Landlord hereunder shall be payable to Landlord at the address set forth in the
Basic Lease Information, or at such other address as Landlord may specify from
time to time by written notice delivered in accordance herewith. Tenant's
obligation to pay Rent and any other amounts to Landlord under the terms of this
Lease shall not be deemed satisfied until such Rent and other amounts have been
actually received by Landlord.
All notices, demands, consents and approvals which may or
are required to be given by either party to the other hereunder shall be in
writing and shall be deemed to have been fully given when deposited in the
United States mail, certified or registered, postage prepaid, and addressed to
the party to be notified at the address for such party specified in the Basic
Lease Information or to such other place as the party to be notified may from
time to time designate by at least fifteen (15) days notice to the notifying
party. Tenant appoints as its agent to receive the service of all default
notices and notice of commencement of unlawful detainer proceedings the person
in charge of or apparently in charge of or occupying the Premises at the time,
and, if there is no such person, then such service may be made by attaching the
same on the main entrance of the Premises (with a copy deposited in the United
States mail in accordance with this Paragraph).
ATTORNEY'S FEES In any action between the parties to enforce any of the terms of
this Lease (including, without limitation, the collection of Rent), to seek a
declaration of any rights under this Lease, or to recover damages for a breach
of this Lease, the prevailing party shall be entitled to recover reasonable
attorneys' fees, together with any costs and expenses, to resolve the dispute
and to enforce the final judgement.
SUCCESSORS
AND ASSIGNS This Lease shall be binding upon and inure to the benefit of
Landlord and its successors and assigns, and shall be binding upon and inure to
the benefit of Tenant and its successors and assigns (as permitted under the
terms of this Lease).
FORCE MAJEURE Whenever a period of time is herein prescribed for action to be
taken by Landlord or Tenant, the party shall not be liable or responsible for,
and there shall be excluded from the computation for any such period of time,
any delays due to strike, riots, acts of God, shortages of labor or materials,
war, governmental laws, regulations or restrictions or any other causes of any
kind whatsoever which are beyond the control of such party.
MISCELLANEOUS The term "Tenant" or any pronoun used in place thereof shall
indicate and include the masculine or feminine, the singular or plural number,
individuals, firms or corporations, and their and each of their respective
successors, executors, administrators and permitted assigns, according to the
context hereof.
Time is of the essence regarding this Lease and all of its
provisions.
This Lease shall in all respects be governed by the laws of
the State of California.
This Lease, together with its exhibits, contains all the
agreements of the parties hereto and supersedes any previous negotiations.
There have been no representations made by the Landlord or
understandings made between the parties other than those set forth in this Lease
and its exhibits.
This Lease may not be modified except by a written
instrument by the parties hereto.
If, for any reason whatsoever, any of the provisions hereof
shall be unenforceable or ineffective, all of the other provisions shall be and
remain in full force and effect.
Lease Effective Date. Submission of this instrument for
examination or signature by Tenant does not constitute a reservation or option
for lease, and it is not effective as a lease or otherwise until execution by
Landlord and Tenant.
ADDITIONAL
PROVISIONS Tenant Improvements. Tenant's initial improvements to the Premises
shall be built in accordance with the Tenant Improvements Work Letter.
Option to Extend. Landlord grants to Tenant the option to
extend the term of this Lease for one five (5) year period (the "Option Period")
commencing when the prior term expires upon each and all of the following terms
and conditions.
(a) ▇▇▇▇▇▇ gives to Landlord and Landlord receives notice of the
exercise of the option to extend this Lease for the Option Period no later than
one hundred eighty (180) days prior to the time that the Option Period would
commence if the option were exercised, time being of the essence. If said
notification of the exercise of said option is not so given and received, this
option shall automatically expire;
(b) At the time said written notification of exercise of option is
given and received, Tenant shall not be in default under any of the material
obligations of this Lease to be performed by Tenant (beyond any applicable cure
period) and said Lease shall not have previously terminated nor terminated prior
to the commencement of the Option Period;
(c) All of the terms and conditions of this Lease except where
specifically modified by this option shall apply;
(d) The Base Rent for the Option Period shall be calculated as follows:
The rent payable by Tenant during the Option Period shall be ninety-five percent
(95%) of the fair market rental value of the Premises at the commencement date
of the Option Period. In no event shall the rent for the Option Period be less
than the rent paid by ▇▇▇▇▇▇ during the year immediately preceding the Option
Period. If Landlord and Tenant cannot agree on the fair market rental value of
the Premises for the Option Period within forty-five (45) days after Tenant has
notified Landlord of its exercise of the option, Landlord and Tenant shall each
select within forty-five (45) days of such notification, an appraiser who must
be a qualified M.A.I. Appraiser to determine said fair market rental value. If
one party fails to so designate an appraiser within the time required, the
determination of fair market rental value of the one appraiser who has been
designated by the other party hereto within the time required shall be binding
upon both parties. The appraisers shall submit their determinations of fair
market rental value to both parties within thirty (30) days after their
selection. If the difference between the two determinations is ten percent (10%)
or less of the higher appraisal, then the average between the two determinations
shall be the fair market rental value of the Premises. If said difference is
greater than ten percent (10%), then the two appraisers shall within twenty (20)
days of the date that the later submittal is submitted to the parties designate
a third appraiser who must also be a qualified M.A.I. Appraiser. The sole
responsibility of the third appraiser will be to determine which of the
determinations made by the first two appraisers is most accurate. The third
appraiser shall have no right to propose a middle ground or any modification of
either of the determinations made by the first two appraisers. The third
appraiser's choice shall be submitted to the parties within thirty (30) days
after his or her selection. Such determination shall bind both of the parties
and shall establish the fair market rental value of the Premises. Each party
shall pay equal shares of the fees and expenses of the third appraiser.
Fair market rental value for the purpose of this Lease shall mean the then
prevailing rent for premises comparable in size, quality, and orientation to the
demised Premises, located
in buildings comparable in size to, and in the general vicinity of, the building
which the demised Premises are located, leased on terms comparable to the terms
contained in this Lease.
Right of First Refusal on Contiguous Space.
A. Landlord hereby grants to Tenant a right of first refusal, on the terms and
conditions herein set forth, to lease the approximately 12,862 square feet of
space of the Building identified on Exhibit A as the "First Refusal Area." If,
during the term of this Lease, Landlord receives a bona fide offer from any
third party to lease the First Refusal Area, Landlord shall, before accepting
such offer, offer to lease such area to Tenant on the terms and conditions set
forth in Paragraph 41.B below. Landlord shall give written notice to Tenant
stating the material terms and conditions contained in the bona fide offer (the
"Landlord's Notice"). Within five (5) business days after the Landlord's Notice
is given, Tenant may accept such offer by written notice to Landlord accompanied
by payment of one month's Base Rent for the First Refusal Area.
B. The terms and conditions upon which Tenant shall lease the First Refusal Area
shall be determined as set forth below:
(1) If Tenant exercises the right of first refusal during the first
twelve (12) months of the Term of this Lease, then the following shall apply:
(a) Tenant shall occupy the First Refusal Area upon the same
terms and conditions (including the Base Rent) as set forth in this Lease.
(b) The initial Term of this Lease shall be extended so that
the initial term of Tenant's occupancy of the Premises and the First Refusal
Area shall be five (5) years, measured from the date of Tenant's occupancy of
First Refusal Area; provided, however, that Base Rent for the additional months
added to the initial Term shall be $1.04 per square foot per month. By way of
example only, if the Term Commencement Date is March 1, 1998, and if Tenant
exercises the right of first refusal on September 1, 1998, then the new
Expiration Date of the initial Term of this Lease shall be extended to August
31, 2003, and Base Rent shall be payable as follows:
9/1/98 - 8/31/00 $0.94 per square foot per month (or $24,180.56 per month,
based on a total of approximately 25,724 square feet).
9/1/00 - 8/31/03 $1.04 per square foot per month (or $26,752.96 per month,
based on a total of approximately 25,724 square feet).
(2) If Tenant exercises the right of first refusal after the first
twelve (12) months of the Term of this Lease, within the time period specified
above, then Tenant shall lease the First Refusal Area on the same terms and
conditions as stated in Landlord's Notice; provided, however, that the
Expiration Date of the term of the lease for the First Refusal Area shall be the
Expiration Date of this Lease. If Tenant does not exercise its right of
first refusal within the time period specified above, Landlord shall be free to
lease the First Refusal Area to the third party on the terms specified in
Landlord's Notice. If Landlord fails to enter into a lease a such third party on
the terms contained in Landlord's Notice within one hundred twenty (120) days
after ▇▇▇▇▇▇'s rejection of the First Refusal Area, ▇▇▇▇▇▇'s right of first
refusal described herein shall again be applicable to the First Refusal Area.
C. Notwithstanding any provisions of this Paragraph to the contrary, it is
understood and agreed that the right of refusal set forth in this Paragraph
shall, at Landlord's option, terminate and be of no further force or effect if:
(1) Landlord gives Tenant the Landlord's Notice, and ▇▇▇▇▇▇ does not
notify Landlord, in writing, of ▇▇▇▇▇▇'s acceptance of the First Refusal Area
when and as hereinabove provided, time being of the essence.
(2) At any time that the First Refusal Area becomes or is available
until an amendment to the Lease is executed incorporating the First Refusal Area
into the Premises, a default (beyond any applicable cure period) by Tenant
exists and is continuing.
(3) At any time provided herein for exercise of the right of refusal by
▇▇▇▇▇▇, any federal, state, or local law or regulation invalidates or modifies
any provision of the foregoing right of first refusal. It is understood and
agreed that if ▇▇▇▇▇▇ fails to exercise its right of refusal as to the First
Refusal Area, the right of refusal shall terminate completely and this Paragraph
shall be of no further force or effect.
(4) This Lease expires or is terminated.
Early Occupancy. Tenant will be allowed access to the Premises
two (2) weeks prior to the Scheduled Term Commencement Date in order to install
equipment and machinery required for Tenant's business (including, without
limitation, cabling, telephone systems, furniture and partitions). Landlord and
Tenant agree that all of the terms, conditions and covenants of the Lease will
have full effect as of the date Tenant is allowed access to the Premises, except
that Tenant will not be obligated to pay Rent until the Term Commencement Date.
Tenant understands that its early access to the Premises may cause some delay in
the construction of the tenant improvements and that any delay will not be a
cause for forgiveness of any Rent due under this Lease. Tenant also waives all
claims for loss or damages that Tenant may otherwise have against Landlord as a
result of any delay caused by ▇▇▇▇▇▇'s early access to the Premises.
IN WITNESS WHEREOF, the parties have executed this Lease as of the date first
set forth above.
LANDLORD:
THE ▇▇▇▇▇▇ AND ▇▇▇ ▇▇▇▇
DATE:
--------------------------------
REVOCABLE TRUST DATED AUGUST 18, 1989
By: Signature illegible
------------------------------
▇▇▇▇▇▇ ▇▇▇▇
By: ______________________________
▇▇▇ ▇▇▇▇
TENANT:
ADEPT TECHNOLOGY, INC.,
DATE: April 30, 1998
---------------------------------
a California corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
[Printed Name] ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
[Printed Title] CFO
------------------------------
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
[Printed Name] ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
[Printed Title] CEO
------------------------------
EXHIBIT A
IDENTIFICATION OF THE PREMISES, THE BUILDING AND THE PROJECT
[graphic of site.]
EXHIBIT B
PLANS AND SPECIFICATIONS
[TO FOLLOW]
EXHIBIT C
LEASE CONFIRMATION
To: ______________________________
[Name of Tenant]
RE: Lease dated _______________between The ▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇ Revocable Trust
Dated August 18, 1989, as Landlord, and ______________________________, as
Tenant
Please acknowledge that the Term Commencement Date of the
Lease is _______________ and that the Expiration Date of the Lease is _________.
Very truly yours,
THE ▇▇▇▇▇▇ AND ▇▇▇ ▇▇▇▇ REVOCABLE TRUST DATED AUGUST 18, 1989
By: ______________________________
[Printed Name] _______________________________
[Printed Title] ______________________________
Tenant hereby confirms the information set forth above, and
further acknowledges that Landlord has fulfilled its obligations under the
above-referenced Lease accruing prior to the Term Commencement Date. Tenant
hereby accepts the Premises in the condition existing as of the Term
Commencement Date.
[Name of Tenant] _________________________________
By: ______________________________________________
[Printed Name] _________________________________
[Printed Title] ________________________________
EXHIBIT D
RULES AND REGULATIONS
1. No person shall use any roadway or walkway located within the Industrial
Center except as a means of egress from or ingress to the Buildings, the
Premises and the parking areas within the Industrial Center, or adjacent public
streets. Such use shall be in an orderly manner, in accordance with the
directional or other signs or guides. Roadways within the Industrial Center
shall not be used at a speed in excess of the lesser of the posted speed limit
or 20 miles per hour and shall not be used for parking or stopping, except for
the immediate loading or unloading of passengers. No walkway shall be used for
any purpose other than pedestrian travel.
2. No person shall use any parking area within the Industrial Center except for
the parking of motor vehicles during the time that the occupants of such
vehicles are working at the Premises or are customers or invitees within the
Industrial Center. All vehicles shall be parked in an orderly manner within the
painted lines defining the individual parking spaces. During peak periods of
business activity, limitations may be imposed as to the length of time for
parking use. Such limitations may be made in specified areas. No vehicles shall
be left in the parking areas overnight and no extended term storage of vehicles
shall be permitted. All directional signs and arrows must be observed.
3. No person shall use any utility area, truck court or other area reserved for
use in connection with the conduct of business, except for the specific purpose
for which permission to use such area is given.
4. Sidewalks and walkways shall not be obstructed by Tenant or used by Tenant to
display, store or replace any merchandise, equipment or devices. The exterior
areas immediately adjoining the Premises shall be kept clean and free from dirt
and rubbish by Tenant to the satisfaction of Landlord.
5. No person, without the written consent of Landlord, shall in or on any part
of the Common Areas:
(a) Vend, peddle or solicit orders for sale or distribution of any
merchandise, device, service, periodical, book, pamphlet or other matter.
(b) Exhibit any sign, placard, banner, notice or other written
material.
(c) Distribute any circular, booklet, handbill, placard or other
material.
(d) Solicit membership in any organization, group or association or
contribution for any purpose.
(e) Parade, rally, patrol, picket, demonstrate or engage in any conduct
that might tend to interfere with or impede the use of any of the Common Areas
by any Industrial Center customer or occupant, create a disturbance, attract
attention or harass, annoy, disparage or be detrimental to the interest of any
of the establishments within the Industrial Center.
(f) Use any Common Areas for any purpose when none of the
establishments within the Industrial Center is open for business or employment.
(g) Throw, discard or deposit paper, glass or extraneous matter, except
in designated receptacles, or create litter hazards.
(h) Use any sound-making device or create or produce, in any manner,
noise or sound that is annoying, unpleasant, or distasteful.
The listing of specific items as being prohibited is not intended to be
exclusive, but to indicate in general the manner in which the right to use the
Common Areas solely as a means of access and convenience in egressing and
ingressing to the establishments in the Industrial Center is limited and
controlled by Landlord.
Landlord shall have the right to remove or exclude from or to restrain (or take
legal action to do so) any unauthorized person from, or from coming upon, the
Industrial Center, and prohibit, ▇▇▇▇▇ and recover damages arising from any
unauthorized act, whether or not such act is in express violation of the
prohibitions listed above.
6. All trash, refuse and waste materials shall be stored (a) in adequate
containers, which containers shall be located so as not to be visible to the
general public at the Industrial Center, and (b) so as not to constitute any
health or fire hazard, or nuisance. Tenant shall not burn any trash or garbage
of any kind in or about the Premises or the Building.
7. The Premises shall not be used for lodging or sleeping, and no cooking shall
be done or permitted by Tenant at the Premises, except that the preparation of
coffee, tea, hot chocolate and similar items for Tenant and its employees shall
be permitted.
8. No advertising medium shall be utilized which can be heard or experienced
outside of the Premises, including, without limiting the generality of the
foregoing, flashing lights (not including standard window marquees previously
approved by Landlord), searchlights, loud speakers, phonographs, radios or
televisions.
9. Tenant shall not, without the prior consent of Landlord, use or keep in the
Premises or the Industrial Center any kerosene, gasoline, or flammable or
combustible fluid or materials or use any method of heating or air conditioning
other than that approved by Landlord. Tenant shall not use, keep or permit or
suffer the Premises to be occupied or used in a manner offensive or
objectionable to Landlord or other occupants of the Industrial Center by reason
of noise, odors and/or vibrations, or interfere in any way with other tenants or
those having business in the Industrial Center.
10. Landlord may waive any one or more of these Rules and Regulations for the
benefit of any particular tenant or tenants, but no such waiver by Landlord
shall be construed as a waiver of these Rules and Regulations in favor of any
other tenant or tenants, nor prevent Landlord from thereafter enforcing any such
Rules and Regulations against any or all of the tenants of the Industrial
Center.
11. Wherever the word "Tenant" occurs in these Rules and Regulations, it is
understood and agreed that it shall mean Tenant's assigns, directors, officers,
agents, clerks, employees and visitors. Wherever the word "Landlord" occurs in
these Rules and Regulations, it is understood and agreed that it shall mean
Landlord's assigns, directors, officers, agents, clerks, employees and visitors.
12. These Rules and Regulations are in addition to, and shall not be construed
in any way to modify, alter or amend, in whole or in part, the terms, covenants,
agreements and conditions of any lease of any portion of the Industrial Center.
13. Landlord reserves the right to make such other and reasonable rules and
regulations as in its judgement may from time to time be needed for the safety,
care and cleanliness of the Industrial Center, and for the preservation of good
order therein.
EXHIBIT E
HAZARDOUS SUBSTANCES
NONE
EXHIBIT F
TENANT IMPROVEMENTS
WORK LETTER
This Tenant Improvements Work Letter entered into as of the date of the
Lease dated as of April 20, 1998 ("Lease") between THE ▇▇▇▇▇▇ ▇▇▇▇ AND ▇▇▇ ▇▇▇▇
REVOCABLE TRUST DATED AUGUST 18, 1989 ("Landlord"), and ADEPT TECHNOLOGY, INC.,
a California corporation ("Tenant") with respect to the Premises described in
the Lease. All capitalized terms not defined herein shall have the same meaning
ascribed to such terms in the Lease.
1. Landlord's Work. Landlord, at its sole cost and expense, shall
construct
the shell of the building and all site work in connection therewith
(collectively, the "Building Shell") in accordance with the description set
forth on Exhibit H attached hereto. Landlord shall perform or cause to be
performed all work for ▇▇▇▇▇▇'s improvements in the Premises ("Landlord's Work")
pursuant to plans, specifications and working drawings to be prepared by
Landlord at Tenant's cost (which cost shall be deducted from the Allowance (as
hereinafter defined)), which plans and specifications shall be subject to
Tenant's approval.
2. Standards for Landlord's Work. ▇▇▇▇▇▇▇▇'s Work shall be completed
pursuant to the following provisions:
(a) Landlord shall prepare and submit to Tenant, at Tenant's
cost (which cost shall be deducted from the Allowance (as hereinafter defined)),
two (2) sets of final plans and specifications showing the architectural design
of the Premises, including the basic mechanical system and electrical system
within the Premises, plumbing, partitions and doors, complete fixturing
information, and material selections and finishes. Within ten (10) business days
after receipt of such final plans and specifications, Tenant shall approve or
suggest modifications to such final plans and specifications. Tenant shall not
unreasonably refuse or delay approval of the final plans and specifications.
Landlord may object to any of the suggested modifications by notice to Tenant
within ten (10) business days after receipt of such suggested modifications, and
unless Landlord so objects such suggested modifications shall be deemed approved
by Landlord. Tenant shall also submit all proposed change orders in writing
(with sufficient detail to enable Landlord to understand the nature of the
proposed change) to Landlord for Landlord's prior written approval, which shall
not be unreasonably refused or delayed. If Landlord approves the proposed change
order, Landlord shall notify Tenant of any increase in the cost of Tenant's
improvements and the additional time that would be required to complete Tenant's
improvements as a result of the change order. The individual with whom Tenant
shall communicate regarding permitting and construction shall be ▇▇▇▇▇ ▇▇▇▇
(phone: ▇▇▇-▇▇▇-▇▇▇▇; fax: ▇▇▇-▇▇▇-▇▇▇▇).
(b) Landlord shall select a licensed general contractor (the
"Contractor") as the contractor for the construction of Tenant's improvements by
a process of competitive bidding among not less than three (3) qualified,
licensed general contractors reasonably experienced in the performance of
comparable work. Although the estimated construction costs set forth in the bids
may be a factor in Landlord's selection of the Contractor, Landlord shall not be
obligated to select the contractor that provides the lowest bid, and may take
into account such other factors as a commercially reasonable landlord may choose
to consider. Landlord shall instruct the Contractor to build Landlord's Work as
soon as reasonably possible at Tenant's sole and entire cost (subject to
Tenant's ability to utilize the Allowance to pay for such costs). Landlord will
not be entitled to any supervision fee in connection with the construction of
▇▇▇▇▇▇'s improvements. Any failure by Tenant to comply with the dates and time
limits in this Work Letter, or failure to pay when due any sums due to the
Contractor, which causes a delay in such construction, shall automatically
constitute a "Tenant Delay." Tenant shall have the right to have the plans and
specifications redrawn, at Tenant's cost (which
cost shall be deducted from the Allowance) if the estimated cost of construction
exceeds the Allowance; provided, however, that any delay caused by ▇▇▇▇▇▇'s
exercise of such right shall constitute a Tenant Delay.
(c) ▇▇▇▇▇▇ agrees and understands that Landlord shall not be
the guarantor of, nor responsible for, the correctness or accuracy of the plans
and specifications. Notwithstanding the foregoing, Landlord shall assign all
transferable claims and actions (in contract and/or in tort) and all warranties
and guaranties or enforce for Tenant's benefit, at Tenant's sole cost and
expense, all such claims, actions, warranties and guaranties, if any, obtained
by Landlord in connection with the preparation of the plans and specifications
and the construction of Landlord's Work and the Building Shell. Landlord shall
obtain from the general contractor a one-year warranty for defects in material
and workmanship.
(d) Any change which ▇▇▇▇▇▇ makes to the final plans and
specifications as approved by Tenant that delays Landlord in causing the
Premises to become ready for occupancy beyond the time that it would have
otherwise taken to cause the Premises to become ready for occupancy shall also
constitute a Tenant Delay.
(e) Tenant shall be solely responsible for the adequacy of the
final plans and specifications for Tenant's use of the Premises, including,
without limitation, any special requirements of Tenant's proposed equipment or
machines with respect to ambient temperatures, electrical use or current, or
water availability. Tenant acknowledges that in connection with Landlord's
preparation of the final plans and specifications, Tenant may provide Landlord
with certain information regarding its specific needs relating to the Premises
in developing plans and specifications for Landlord's Work and that Tenant may
provide some of its own equipment for installation in the Premises. Tenant
further acknowledges that Landlord will make no independent review of any such
information and that Landlord does not warrant, either expressly or impliedly,
the adequacy of the plans and specifications, the adequacy of Landlord's Work or
Tenant's equipment for ▇▇▇▇▇▇'s intended purpose.
3. Construction. Landlord, as soon as practicable after the Lease and
this Work Letter is executed, shall make arrangements to obtain all necessary
governmental approvals and permits (but shall have no liability to Tenant for
any inability to obtain necessary approvals or permits) and shall construct,
consistent with industry custom and practice, the improvements indicated on the
plans and specifications. Landlord, through the Contractor, shall construct
Tenant's improvements and the Building Shell in a good and workmanlike manner,
in compliance with all laws and using new material of good quality. Landlord
will pay an amount equal to Two Hundred Fifty Seven Thousand Two Hundred Forty
Dollars ($257,240.00) (the "Allowance") toward the cost of the design and
construction of Tenant's improvements including, without limitation,
architectural and engineering fees and costs and governmental permit fees and
costs (the "Total Cost"). The Total Cost shall not include the following: (a)
costs arising from changes to the final plans and specifications not approved by
Tenant (unless the same are required by applicable laws or in connection with
governmental approvals or permits); (b)
wages, labor and overhead for overhead and premium time unless requested by
Tenant or required due to Tenant Delays; (c) interest and fees for construction
financing; (d) bonds premiums (provided the same are not requested by Tenant or
required due to Tenant Delays); and (e) costs for which Landlord receives
reimbursement from others (including, without limitation, insurers and
warrantors). If the Total Cost exceeds the Allowance, the difference shall be
paid by Tenant to Landlord at the time the construction contract is signed. If
the Total Cost is less than the Allowance (with such differential being referred
to herein as the "Under Budget Amount"), then Base Rent shall be reduced by
$0.015, per square foot, per month, for each $12,862.00 of the Under Budget
Amount. In the event that Tenant requests any changes to the plans and
specifications, Landlord shall not unreasonably withhold its consent to any such
changes, provided the changes do not adversely affect the Building's structure,
systems, equipment, security system or appearance, but if such changes cause the
Total Cost of Tenant's improvements to exceed the Allowance, Tenant shall pay
such increased costs to Landlord at such time as the request is approved by
Landlord. If such changes delay Landlord's completion of the work shown on the
plans and specifications, then such delay shall constitute Tenant Delays. Any
other actions of Tenant, or inaction by Tenant, that are inconsistent with
▇▇▇▇▇▇'s obligations hereunder and which delay Landlord in completing Tenant's
improvements shown on such plans and specifications, shall also constitute
Tenant Delays. Landlord will utilize, for the construction of Tenant's
improvements, the items and materials designated in the plans and
specifications. However, whenever Landlord determines in its reasonable judgment
that it is not possible to use such materials, Landlord shall have the right,
upon receipt of Tenant's consent, which consent shall not be unreasonably
withheld or delayed, to substitute comparable items and materials. If ▇▇▇▇▇▇
refuses to grant such consent, and ▇▇▇▇▇▇▇▇ is delayed in causing ▇▇▇▇▇▇'s
improvements to be Substantially Complete (as hereinafter defined) because of
Tenant's failure to permit the substitution of comparable items and materials,
such delay shall constitute Tenant Delays. In addition, and without limiting the
foregoing, Tenant shall in no event withhold its approval of any change required
to comply with applicable laws or in connection with governmental approvals or
permits.
4. Substantially Complete. The term "Substantially Complete" means that
Landlord has completed Tenant's improvements, other work that it is obligated to
perform pursuant to this Work Letter, and all paving of the parking areas and
the driveways of the Project, and a certificate of occupancy has been issued by
the appropriate government agency, notwithstanding the fact that minor details
of construction, mechanical adjustments or decorations which do not materially
interfere with Tenant's use of the Premises remain to be performed (items
normally referred to as "Punch-List Items"). The Premises shall be deemed
Substantially Complete even Tenant's furniture, telephones, telexes,
telecopiers, photocopy machines, computers and other business machines or
equipment have not been installed, the purchase and installation of which shall
be Tenant's sole responsibility. Landlord shall cause the Punch-List Items to be
corrected as soon as reasonably possible and practical.
LANDLORD:
THE ▇▇▇▇▇▇ AND ▇▇▇ ▇▇▇▇
REVOCABLE TRUST DATED AUGUST 18, 1989
By: Signature illegible.
------------------------------
▇▇▇▇▇▇ ▇▇▇▇
By:
------------------------------
▇▇▇ ▇▇▇▇
TENANT:
ADEPT TECHNOLOGY, INC.,
a California corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
[Printed Name] ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
[Printed Title] CFO
------------------------------
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
[Printed Name] ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
[Printed Title] CEO
------------------------------
EXHIBIT G
▇▇▇▇▇▇ BUSINESS PARK SIGN CRITERIA
I. General Requirements for Window Graphics
A. Only vinyl material will be allowed for all graphic letters.
B. All graphics must be submitted and approved by Landlord prior
to any installation.
C. Letter size shall not exceed 12" (inches) in height.
D. Logo size may not exceed 24" x 24" (inches) in size, if used.
Logos may
be custom painted.
E. No window graphic area shall be larger than 3" x 5" (feet) in
total dimension.
F. All window graphics must be installed by a qualified graphic
or sign contractor.
G. It is the intent of this criteria to enhance the theme and
aesthetics of the Project.
EXHIBIT H
BUILDING SHELL
Landlord's costs shall include all "hard and soft" costs related to the
construction of the Project and the Building Shell (as defined below), including
architectural and engineering services, permits, and utility fees for
connections and meters for the standard Building Shell (but excluding any tenant
improvements).
The "Building Shell" shall mean the Building structure, exterior walls, glass,
floor slab, utilities (telephone, gas, electric, plumbing, fire and water)
stubbed to the Building, and roof. Work related to the Project shall include the
parking lot, parking lot lighting, and landscaping. Landlord shall also install
an electrical panel in the Premises and install the main fire sprinkler trunks
and a fully functional overhead system distributed throughout the Premises as
required by applicable law.