Exhibit 10.10
[Net Lease]
LEASE AGREEMENT
THIS LEASE AGREEMENT is made this 13 day of July, 2000, between
ProLogis Trust, a Maryland real estate investment trust ("Landlord"), and the
Tenant named below.
TENANT: Kinetics Fluid Systems, a California
corporation
TENANT'S REPRESENTATIVE, ▇▇▇▇▇ ▇▇▇▇▇▇
ADDRESS, AND PHONE NO.: ▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: 512/▇▇▇-▇▇▇▇
FAX: 512/▇▇▇-▇▇▇▇
PREMISES: That portion of the Building commonly known
as Suite____, containing approximately 72,000
rentable square feet, as determined by
Landlord, as shown on Exhibit A.
PROJECT: Corridor Park Corporate Center
BUILDING: Corridor Park Corporate Center, Building if
#11 _________Parker Drive, ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇
TENANT'S PROPORTIONATE SHARE
OF PROJECT: _______%
TENANT'S PROPORTIONATE SHARE
OF BUILDING: _______%
LEASE TERM: Beginning on the Commencement Date and ending
on the last day of the 84th full calendar
month thereafter.
COMMENCEMENT DATE: February 1, 2001
INITIAL MONTHLY BASE RENT: $28,800.00
INITIAL ESTIMATED MONTHLY 1. Common Area Charges: $1,996.80
OPERATING EXPENSE PAYMENTS:
(estimates only and subject 2. Taxes $6,712.20
to adjustment to actual costs
and expenses according to the 3. Insurance . $ 210.00
provisions of this Lease)
4. Management Fee $1,131.58
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INITIAL ESTIMATED MONTHLY OPERATING
EXPENSE PAYMENTS: $10,050.58
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INITIAL MONTHLY BASE RENT AND
OPERATING EXPENSE PAYMENTS: $38,850.58
SECURITY DEPOSIT: None.
BROKER: ▇▇▇ ▇▇▇▇
ADDENDA: Addendum One-Base Rent Adjustments; Addendum
Two-Construction (Allowance Amortized);
Addendum Three-One Renewal Option at Market;
Addendum Four-Move-Out Conditions; Addendum
5-Sign Specifications; Addendum 6-HVAC
Maintenance Agreement; Addendum 7-Special
Provisions; Exhibit A-Site Plan.
1. GRANTING CLAUSE. In consideration of the obligation of Tenant
to pay rent as herein provided and in consideration of the other terms,
covenants, and conditions hereof, Landlord leases to Tenant, and Tenant takes
from Landlord, the Premises, to have and to hold for the Lease Term, subject to
the terms, covenants and conditions of this Lease.
2. ACCEPTANCE OF PREMISES. Tenant shall accept the Premises in
its condition as of the Commencement Date, subject to all applicable laws,
ordinances, regulations, covenants and restrictions. Landlord has made no
representation or warranty as to the suitability of the Premises for the conduct
of Tenant's business, and Tenant waives any implied warranty that the Premises
are suitable for Tenant's intended purposes. Except as provided in Paragraph 10,
in no event shall Landlord have any obligation for any defects in the Premises
or any limitation on its use. The taking of possession of the Premises shall be
conclusive evidence that Tenant accepts the Premises and that the Premises were
in good condition at the time possession was taken except for items that are
Landlord's responsibility under Paragraph 10 and any punchlist items agreed to
in writing by Landlord and Tenant. Landlord represents that as of the
Commencement Date, all building and mechanical systems servicing the Premises
shall be in good working order, including, without limitation, the heating,
ventilation and air conditioning system.
3. USE. The Premises shall be used only for the purpose of
receiving, storing, shipping and selling (but limited to wholesale sales)
products, materials and merchandise made and/or distributed by Tenant and for
such other lawful purposes as may be incidental thereto; provided, however, with
Landlord's prior written consent, Tenant may also use the Premises for light
manufacturing. Tenant shall not conduct or give notice of any auction,
liquidation, or going out of business sale on the Premises. Tenant will use the
Premises in a careful, safe and proper manner and will not commit waste,
overload the floor or structure of the Premises or subject the Premises to use
that would
damage the Premises. Tenant shall not permit any objectionable or unpleasant
odors, smoke, dust, gas, noise, or vibrations to emanate from the Premises, or
take any other action that would constitute a nuisance or would disturb,
unreasonably interfere with, or endanger Landlord or any tenants of the Project.
Outside storage, including without limitation, storage of trucks and other
vehicles, is prohibited without Landlord's prior written consent. Tenant, at its
sole expense, shall use and occupy the Premises in compliance with all laws,
including, without limitation, the Americans With Disabilities Act, orders,
judgments, ordinances, regulations, codes, directives, permits, licenses,
covenants and restrictions now or hereafter applicable to the Premises
(collectively, "Legal Requirements"). The Premises shall not be used as a place
of public accommodation under die Americans With Disabilities Act or similar
state statutes or local ordinances or any regulations promulgated thereunder,
all as may be amended from time to time. Tenant shall, at its expense, make any
alterations or modifications, within or without the Premises, that are required
by Legal Requirements related to Tenant's use of the Premises. Tenant will not
use or permit the Premises to be used for any purpose or in any manner that
would void Tenant's or Landlord's insurance, increase the insurance risk, or
cause the disallowance of any sprinkler credits. If any increase in the cost of
any insurance on the Premises or the Project is caused by Tenant's use or
occupation of the Premises, or because Tenant vacates the Premises, then Tenant
shall pay the amount of such increase to Landlord. Any occupation of the
Premises by Tenant prior to the Commencement Date shall be subject to all
obligations of Tenant under this Lease.
Tenant's obligations hereunder shall relate only to the
interior of the Premises and any changes to the Project that relate solely to
the specific mariner of use of the Premises by Tenant; and Landlord shall make
all other additions to or modifications of the Project required from time to
time by Legal Requirements. The cost of such additions or modifications made by
Landlord shall be included in Operating Expenses pursuant to Paragraph 6 of this
Lease, except for those additions or modifications which are Landlord's sole
responsibility pursuant to Paragraph 10 of this Lease.
4. BASE RENT. Tenant shall pay Base Rent in the amount set forth
above. The first month's Base Rent and the first monthly installment of
estimated Operating Expenses (as hereafter defined) shall be due and payable on
the date hereof, and Tenant promises to pay to Landlord in advance, without
demand, deduction or set-off, monthly installments of Base Rent on or before the
first day of each calendar month succeeding the Commencement Date. Payments of
Base Rent for any fractional calendar month shall be prorated. All payments
required to be made by Tenant to Landlord hereunder shall be payable at such
address as Landlord may specify from time to time by written notice delivered in
accordance herewith. The obligation of Tenant to pay Base Rent and other sums to
Landlord and the obligations of Landlord under this Lease are independent
obligations. Tenant shall have no right at any time to ▇▇▇▇▇, reduce, or set-off
any rent due hereunder except as may be expressly provided in this Lease. If
Tenant is delinquent in any monthly installment of Base Rent or of estimated
Operating Expenses for more than 5 days, Tenant shall pay to Landlord on demand
a late charge equal to 5 percent of such delinquent sum. The provision for such
late charge shall be in addition to all of Landlord's other rights and remedies
hereunder or at law and shall not be construed as a penalty.
5. SECURITY DEPOSIT. Intentionally deleted.
6. OPERATING EXPENSE PAYMENTS. each month of the Lease
Term, on the same date that Base Rent is due, Tenant shall pay Landlord an
amount equal to 1/12 of the annual cost, as estimated by Landlord from time to
time, of Tenant's Proportionate Share (hereinafter defined) of Operating
Expenses for the Project. Payments thereof for any fractional calendar month
shall be prorated. The term "Operating Expenses" means all costs and expenses
incurred by Landlord with respect to the ownership, maintenance, and operation
of the Project including, but not limited to costs of: Taxes (hereinafter
defined) and fees payable to tax consultants and attorneys for consultation and
contesting taxes; insurance; utilities; maintenance, repair and replacement of
all portions of the Project, including without limitation, paving and parking
areas, roads, roofs, alleys, and driveways, mowing, landscaping, exterior
painting, utility lines, heating, ventilation and air conditioning systems,
lighting, electrical systems and other mechanical and building systems; amounts
paid to contractors and subcontractors for work or services performed in
connection with any of the foregoing; charges or assessments of any association
to which the Project is subject; property management fees payable to a property
manager, including any affiliate of Landlord, or if there is no property
manager, an administration fee of 15 percent of Operating Expenses payable to
Landlord; security services, if any; trash collection, sweeping and removal; and
additions or alterations made by Landlord to the Project or the Building in
order to comply with Legal Requirements (other than those expressly required
herein to be made by Tenant) or that are appropriate to the continued operation
of the Project or the Building as a bulk warehouse facility in the market area,
provided that the cost of additions or alterations that are required to be
capitalized for federal income tax purposes shall be amortized on a straight
line basis over a period equal to the lesser of the useful life thereof for
federal income tax purposes or 10 years. Operating Expenses do not include
costs, expenses, depreciation or amortization for capital repairs and capital
replacements required to be made by Landlord under Paragraph 10 of this Lease;
debt service under mortgages or ground rent under ground leases; costs of
restoration to the extent of net insurance proceeds received by Landlord with
respect thereto; leasing commissions; the costs of renovating space for tenants;
costs incurred in connection with the construction or remodeling of the Project
or any other improvements now or hereafter located thereon, correction of
defects in design or construction; interest, principal, or other payments on
account of any indebtedness that is secured by any incumbrance on any part of
the Project, or rental or other payments under any ground lease, or any payments
in the nature of returns on or of equity of any kind; costs of selling,
syndicating, financing, mortgaging or hypothecating any part of or interest in
the Project; taxes on the income of Landlord or Landlord's franchise taxes
(unless any of said taxes are hereafter instituted by applicable taxing
authorities in substitution for ad valorem real property taxes); depreciation,
reserves of any kind, including replacement reserves and reserves for bad debt
or lost rent, or any other charge not involving the payment of money to third
parties; Landlord's overhead costs, including equipment, supplies, accounting
and legal fees, rent and other occupancy costs or any other costs associated
with the operation or internal organization and
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function of Landlord as a business entity (but this provision does not prevent
the payment of a management fee to Landlord as provided in this Paragraph 6);
fees or other costs for professional services provided by space planners,
architects, engineers, and other similar professional consultants, real estate
commissions, and marketing and advertising expenses; costs of defending or
prosecuting litigation with any party, unless a favorable judgment would reduce
or avoid an increase in Operating Expenses, or unless the litigation is to
enforce compliance with Rules and Regulations of the Project, or other standards
or requirements for the general benefit of the tenants in the Project; costs
incurred as a result of Landlord's violation of any lease, contract, law or
ordinance, including fines and penalties; late charges, interest or penalties of
any kind for late or other improper payment of any public or private obligation,
including ad valorem taxes; costs of removing Hazardous Materials or of
correcting any other conditions in order to comply with any environmental law or
ordinance (but this exclusion shall not constitute a release by Landlord of
Tenant for any such costs for which Tenant is liable pursuant to Paragraph 30 of
this Lease); costs for which Landlord is reimbursed from any other source; costs
related to any building or land not included in the Project, including any
allocation of costs incurred on a shared basis, such as centralized accounting
costs, unless the allocation is made on a reasonable and consistent basis that
fairly reflects the share of costs actually attributable to the Project; and the
part of any costs or other sum paid to any affiliate of Landlord that may exceed
the fair market price or cost generally payable for substantially similar goods
or services in the area of the Project.
Landlord shall provide Tenant within 90 days following the
final day of the Calendar year Landlord's itemized year-end common area
maintenance reconciliation reports. Upon Tenant's written request (which request
shall be limited to once in a calendar year), Landlord shall provide photocopies
of invoices, bills and other verification to substantiate such costs. If
Tenant's total payments of Operating Expenses for any year are less than
Tenant's Proportionate Share of actual Operating Expenses for such year, then
Tenant shall pay the difference to Landlord within 30 days after demand, and if
more, then Landlord shall retain such excess and credit it against Tenant's next
payments. For purposes of calculating Tenant's Proportionate Share of Operating
Expenses, a year shall mean a calendar year except the first year, which shall
begin on the Commencement Date, and the last year, which shall end on the
expiration of this Lease. With respect to Operating Expenses which Landlord
allocates to the entire Project, Tenant's "Proportionate Share" shall be the
percentage set forth on the first page of this Lease as Tenant's Proportionate
Share of the Project as reasonably adjusted by Landlord in the future for
changes in the physical size of the Premises or the Project; and, with respect
to Operating Expenses which Landlord allocates only to the Building, Tenant's
"Proportionate Share" shall be the percentage set forth on the first page of
this Lease as Tenant's Proportionate Share of the Building as reasonably
adjusted by Landlord in the future for changes in the physical size of the
Premises or the Building. Landlord may equitably increase Tenant's Proportionate
Share for any item of expense or cost reimbursable by Tenant that relates to a
repair, replacement, or service that benefits only the Premises or only a
portion of the Project or Building that includes the Premises or that varies
with occupancy or use. The estimated Operating Expenses for the Premises set
forth on the first page of this Lease are only estimates, and Landlord makes no
guaranty or warranty that such estimates will be accurate.
7. UTILITIES. Tenant shall pay for all water, gas, electricity,
heat, light, power, telephone, sewer, sprinkler services, refuse and trash
collection, and other utilities and services used on the Premises, all
maintenance charges for utilities, and any storm sewer charges or other similar
charges for utilities imposed by any governmental entity or utility provider,
together with any taxes, penalties, surcharges or the like pertaining to
Tenant's use of the Premises. Landlord may cause at Tenant's expense any
utilities to be separately metered or charged directly to Tenant by the
provider. Tenant shall pay its share of all charges for jointly metered
utilities based upon consumption, as reasonably determined by Landlord. No
interruption or failure of utilities shall result in the termination of this
Lease or the abatement of rent. Tenant agrees to limit use of water and sewer
for normal restroom use.
8. TAXES. Landlord shall pay all taxes, assessments and
governmental charges (collectively referred to as "Taxes") that accrue against
the Project during the Lease Term, which shall be included as part of the
Operating Expenses charged to Tenant. Landlord may contest by appropriate legal
proceedings the amount, validity, or application of any Taxes or liens thereof.
All capital levies or other taxes assessed or imposed on Landlord upon the rents
payable to Landlord under this Lease and any franchise tax, any excise,
transaction, sales or privilege tax, assessment, levy or charge measured by or
based, in whole or in part, upon such rents from the Premises and/or the Project
or any portion thereof shall be paid by Tenant to Landlord monthly in estimated
installments or upon demand, at the option of Landlord, as additional rent;
provided, however, in no event shall Tenant be liable for any net income taxes
imposed on Landlord unless such net income taxes are in substitution for any
Taxes payable hereunder. If any such tax or excise is levied or assessed
directly against Tenant, then Tenant shall be responsible for and shall pay the
same at such times and in such manner as the taxing authority shall require.
Tenant shall be liable for all taxes levied or assessed against any personal
property or fixtures placed in the Premises, whether levied or assessed against
Landlord or Tenant.
9. INSURANCE. Landlord shall maintain all risk property insurance
covering the full replacement cost of the Building, Landlord may, but is not
obligated to, maintain such other insurance and additional coverages as it may
deem necessary, including, but not limited to, commercial liability insurance
and rent loss insurance. All such insurance shall be included as part of the
Operating Expenses charged to Tenant. The Project or Building may be included in
a blanket policy (in which case the cost of such insurance allocable to the
Project or Building will be determined by Landlord based upon the insurer's cost
calculations). Tenant shall also reimburse Landlord for any increased premiums
or additional insurance which Landlord reasonably deems necessary as a result of
Tenant's use of the Premises.
Tenant. at its expense, shall maintain during the Lease Term:
all risk property insurance covering the full replacement cost of all property
and improvements installed or placed in the Premises by Tenant at Tenant's
expense; worker's compensation insurance with no less than the minimum limits
required by law; employer's liability
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insurance with such limits as required by law; and commercial liability
insurance, with a minimum limit of $1,000,000 per occurrence and a minimum
umbrella limit of $1,000,000, for a total minimum combined general liability and
umbrella limit of $2,000,000 (together with such additional umbrella coverage as
Landlord may reasonably require) for property damage, personal injuries, or
deaths of persons occurring in or about the Premises. Landlord may from time to
time require reasonable increases in any such limits. The commercial liability
policies shall name Landlord as an additional insured, insure on an occurrence
and not a claims-made basis, be issued by insurance companies which are
reasonably acceptable to Landlord, not be cancelable unless 30 days' prior
written notice shall have been given to Landlord, contain a hostile fire
endorsement and a contractual liability endorsement and provide primary coverage
to Landlord (any policy issued to Landlord providing duplicate or similar
coverage shall be deemed excess over Tenant's policies). Such policies or
certificates thereof shall be delivered to Landlord by Tenant upon commencement
of the Lease Term and upon each renewal of said insurance.
The all risk property insurance obtained by Landlord and
Tenant shall include a waiver of subrogation by the insurers and all rights
based upon an assignment from its insured, against Landlord or Tenant, their
officers, directors, employees, managers, agents, invitees and contractors, in
connection with any loss or damage thereby insured against. Neither party nor
its officers, directors, employees, managers, agents, invitees or contractors
shall be liable to the other for loss or damage caused by any risk coverable by
all risk property insurance, and each party waives any claims against the other
party, and its officers, directors, employees, managers, agents, invitees and
contractors for such loss or damage. The failure of a party to insure its
property shall not void this waiver. Landlord and its agents, employees and
contractors shall not be liable for, and Tenant hereby waives all claims against
such parties for, business interruption and losses occasioned thereby sustained
by Tenant or any person claiming through Tenant resulting from any accident or
occurrence in or upon the Premises or the Project from any cause whatsoever,
including without limitation, damage caused in whole or in part, directly or
indirectly, by the negligence of Landlord or its agents, employees or
contractors.
Tenant and its subtenants, assignees, invitees, employees,
contractors and agents shall not be liable for, and Landlord hereby waives all
claims against Tenant and its subtenants, assignees, invitees, employees,
contractors and agents for damage to property sustained by Landlord or any
person claiming through Landlord resulting from any accident or occurrence in or
upon the Premises or in or about the Project from any cause whatsoever,
including, without limitation, damage caused in whole or in part, directly or
indirectly, by the negligence of Tenant or its subtenants, assignees, invitees,
employees, contractors or agents; provided, however, such waiver shall only
apply to claims in excess of the commercially reasonable deductible under
Landlord's insurance policy.
10. LANDLORD'S REPAIRS. Landlord shall maintain, at its expense,
the structural soundness of the roof, foundation, and exterior walls of the
Building in good repair, reasonable wear and tear and uninsured losses and
damages caused by Tenant, its agents and contractors excluded. The term "walls"
as used in this Paragraph 10 shall not include windows, glass or plate glass,
doors or overhead doors, special store fronts, dock bumpers, dock plates or
levelers, or office entries. Tenant shall promptly give Landlord written notice
of any repair required by Landlord pursuant to this Paragraph 10, after which
Landlord shall have a reasonable opportunity to repair.
11. TENANT'S REPAIRS. Landlord, at Tenant's expense as provided in
Paragraph 6, shall maintain in good repair and condition the parking areas and
other common areas of the Building, including, but not limited to driveways,
alleys, landscape and grounds surrounding the Premises. Subject to Landlord's
obligation in Paragraph 10 and subject to Paragraphs 9 and 15, Tenant, at its
expense, shall repair, replace and maintain in good condition all portions of
the Premises and all areas, improvements and systems exclusively serving the
Premises including, without limitation, dock and loading areas, truck doors,
plumbing, water and sewer lines up to points of common connection, fire
sprinklers and fire protection systems, entries, doors, ceilings and roof
membrane, windows, interior walls, and the interior side of demising walls, and
heating, ventilation and air conditioning systems. Such repair and replacements
include capital expenditures and repairs whose benefit may extend beyond the
Term, and such capital expenditures and repairs shall be fully amortized in
accordance with the Formula (defined hereafter) over the remainder of the Lease
Term, without regard to any extension or renewal option not then exercised. The
"Formula" shall mean that number, the numerator of which shall be the number of
months of the Lease Term remaining after the replacement of any such capital
expenditures, and the denominator of which shall be the maximum amortization
period (in months) allowable for determining depreciation of such capital
expenditures for federal income tax purposes, but not to exceed 10 years. Tenant
shall reimburse Landlord for the cost of such repairs and replacements in equal
monthly installments in the same manner as the payment by Tenant to Landlord of
the Operating Expenses. Heating, ventilation and air conditioning systems and
other mechanical and building systems serving the Premises shall be maintained
at Tenant's expense pursuant to maintenance service contracts entered into by
Tenant or, at Landlord's election, by Landlord. The scope of services and
contractors under such maintenance contracts shall be reasonably approved by
Landlord. At Landlord's request, Tenant shall enter into a joint maintenance
agreement with any railroad that services the Premises. If Tenant fails to
perform any repair or replacement for which it is responsible, Landlord may
perform such work and be reimbursed by Tenant within 10 days after demand
therefor. Subject to Paragraphs 9 and 15, Tenant shall bear the full cost of any
repair or replacement to any part of the Building or Project that results from
damage caused by Tenant, its agents, contractors, or invitees and any repair
that benefits only the Premises.
12. TENANT-MADE ALTERATIONS AND TRADE FIXTURES. Any alterations,
additions, or improvements made by or on behalf of Tenant to the Premises
("Tenant-Made Alterations") shall be subject to Landlord's prior written consent
which shall not be unreasonably withheld provided that such alteration does not
materially affect the structure or the roof of the Building, or modify the
utility systems of the Project. Tenant shall cause, at its expense, all Tenant-
Made Alterations to comply with insurance requirements and with Legal
Requirements and shall construct at its expense any alteration or modification
required by Legal Requirements as a result of any Tenant-Made Alterations.
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All Tenant-Made Alterations shall be constructed in a good and workmanlike
manner by contractors reasonably acceptable to Landlord and only good grades of
materials shall be used. All plans and specifications for any Tenant-Made
Alterations shall be submitted to Landlord for its approval. Landlord shall not
unreasonably withhold its approval of such plans and specifications, and shall
notify Tenant within 10 days of its receipt of such plans and specifications of
any changes needed to obtain Landlord's approval thereof. Landlord may monitor
construction of the Tenant-Made Alterations. Tenant shall reimburse Landlord for
its costs in reviewing plans and specifications and in monitoring construction.
Landlord's right to review plans and specifications and to monitor construction
shall be solely for its own benefit, and Landlord shall have no duty to see that
such plans and specifications or construction comply with applicable laws,
codes, rules and regulations. Tenant shall provide Landlord with the identities
and mailing addresses of all persons performing work or supplying materials,
prior to beginning such construction, and Landlord may post on and about the
Premises notices of non-responsibility pursuant to applicable law. Tenant shall
furnish security or make other arrangements satisfactory to Landlord to assure
payment for the completion of all work free and clear of liens and shall provide
certificates of insurance for worker's compensation and other coverage in
amounts and from an insurance company satisfactory to Landlord protecting
Landlord against liability for personal injury or property damage during
construction. Upon completion of any Tenant-Made Alterations, Tenant shall
deliver to Landlord sworn statements setting forth the names of all contractors
and subcontractors who did work on the Tenant-Made Alterations and final lien
waivers from all such contractors and subcontractors. Upon surrender of the
Premises, all Tenant-Made Alterations and any leasehold improvements constructed
by Landlord or Tenant shall remain on the Premises as Landlord's property,
except to the extent Landlord requires removal at Tenant's expense of any such
items or Landlord and Tenant have otherwise agreed in writing in connection with
Landlord's consent to any Tenant-Made Alterations. Tenant shall repair any
damage caused by such removal.
Tenant, at its own cost and expense and without Landlord's
prior approval, may erect such shelves, bins, machinery and trade fixtures
(collectively "Trade Fixtures") in the ordinary course of its business provided
that such items do not alter the basic character of the Premises, do not
overload or damage the Premises, and may be removed without injury to the
Premises, and the construction, erection, and installation thereof complies with
all Legal Requirements and with Landlord's requirements set forth above. Tenant
shall remove its Trade Fixtures and shall repair any damage caused by such
removal.
13. SIGNS. Tenant shall not make any changes to the exterior of
the Premises, install any exterior lights, decorations, balloons, flags,
pennants, banners, or painting, or erect or install any signs, windows or door
lettering, placards, decorations, or advertising media of any type which can be
viewed from the exterior of the Premises, without Landlord's prior written
consent. Upon surrender or vacation of the Premises, Tenant shall have removed
all signs and repair, paint, and/or replace the building facia surface to which
its signs are attached. Tenant shall obtain all applicable governmental permits
and approvals for sign and exterior treatments. All signs, decorations,
advertising media, blinds, draperies and other window treatment or bars or other
security installations visible from outside the Premises shall be subject to
Landlord's approval and conform in all respects to Landlord's requirements.
14. PARKING. Tenant shall be entitled to park in common with other
tenants of the Project in those areas designated for nonreserved parking.
Landlord may allocate parking spaces among Tenant and other tenants in the
Project if Landlord determines that such parking facilities are becoming
crowded. Landlord shall not be responsible for enforcing Tenant's parking rights
against any third parties.
15. RESTORATION. If at any tune during the Lease Term the Premises
are damaged by a fire or other casualty, Landlord shall notify Tenant within 60
days after such damage as to the amount of time Landlord reasonably estimates it
will take to restore the Premises. If the restoration time is estimated to
exceed 6 months, either Landlord or Tenant may elect to terminate this Lease
upon notice to the other party given no later than 30 days after Landlord's
notice. If neither party elects to terminate this Lease or if Landlord estimates
that restoration will ▇▇▇▇ ▇ months or less, then, subject to receipt of
sufficient insurance proceeds, Landlord shall promptly restore the Premises
excluding the improvements installed by Tenant or by Landlord and paid by
Tenant, subject to delays arising from the collection of insurance proceeds or
from Force Majeure events. Tenant at Tenant's expense shall promptly perform,
subject to delays arising from the collection of insurance proceeds, or from
Force Majeure events, all repairs or restoration not required to be done by
Landlord and shall promptly re-enter the Premises and commence doing business in
accordance with this Lease. Notwithstanding the foregoing, either party may
terminate this Lease if the Premises are damaged during the last year of the
Lease Term and Landlord reasonably estimates that it will take more than one
month to repair such damage. Tenant shall pay to Landlord with respect to any
damage to the Premises the amount of the commercially reasonable deductible
under Landlord's insurance policy (currently $10,000) within 10 days after
presentment of Landlord's invoice. If the damage involves the premises of other
tenants, Tenant shall pay the portion of the deductible that the cost of the
restoration of the Premises bears to the total cost of restoration, as
determined by Landlord. Base Rent and Operating Expenses shall be abated for the
period of repair and restoration in the proportion which the area of the
Premises, if any, which is not usable by Tenant bears to the total area of the
Premises. Such abatement shall be the sole remedy of Tenant, and except as
provided herein, Tenant waives any right to terminate the Lease by reason of
damage or casualty loss.
16. CONDEMNATION. If any part of the Premises or the Project
should be taken for any public or quasi-public use under governmental law,
ordinance, or regulation, or by right of eminent domain, or by private purchase
in lieu thereof (a "Taking" or "Taken"), and the Taking would prevent or
materially interfere with Tenant's use of the Premises or in Landlord's judgment
would materially interfere with or impair its ownership or operation of the
Project, then upon written notice by Landlord this Lease shall terminate and
Base Rent shall be apportioned as of said date. If part of the Premises shall be
Taken, and this Lease is not terminated as provided above, the Base Rent payable
hereunder during the unexpired Lease Term shall be reduced to such extent as may
be fair and reasonable under the circumstances. In the event of any such Taking,
Landlord shall be entitled to receive the entire price or
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award from any such Taking without any payment to Tenant, and Tenant hereby
assigns to Landlord Tenant's interest, if any, in such award. Tenant shall have
the right, to the extent that same shall not diminish Landlord's award, to make
a separate claim against the condemning authority (but not Landlord) for such
compensation as may be separately awarded or recoverable by Tenant for moving
expenses and damage to Tenant's Trade Fixtures, if a separate award for such
items is made to Tenant.
17. ASSIGNMENT AND SUBLETTING. Without Landlord's prior written
consent, which Landlord shall not unreasonably withhold, Tenant shall not assign
this Lease or sublease the Premises or any part thereof or mortgage, pledge, or
hypothecate its leasehold interest or grant any concession or license within the
Premises and any attempt to do any of the foregoing shall be void and of no
effect. For purposes of this paragraph, a transfer of the ownership interests
controlling Tenant shall be deemed an assignment of this Lease unless such
ownership interests are publicly traded. Notwithstanding the above, Tenant may
assign or sublet the Premises, or any part thereof, to any entity controlling
Tenant, controlled by Tenant or under common control with Tenant (a "Tenant
Affiliate"), without the prior written consent of Landlord. Tenant shall
reimburse Landlord for all of Landlord's reasonable out-of-pocket expenses in
connection with any assignment or sublease. Upon Landlord's receipt of Tenant's
written notice of a desire to assign or sublet the Premises, or any part thereof
(other than to a Tenant Affiliate), Landlord may, by giving written notice to
Tenant within 30 days after receipt of Tenant's notice, terminate this Lease
with respect to the space described in Tenant's notice, as of the date specified
in Tenant's notice for the commencement of the proposed assignment or sublease.
If Landlord so terminates the Lease, Landlord may enter into a lease directly
with the proposed sublessee or assignee. Tenant may withdraw its notice to
sublease or assign by notifying Landlord within 10 days after Landlord has given
Tenant notice of such termination, in which case the Lease shall not terminate
but shall continue.
Provided no default has occurred and is continuing under this
Lease, upon 10 days prior written notice to Landlord, Tenant may, without
Landlord's prior written consent, assign this Lease to an entity into which
Tenant is merged or consolidated or to an entity to which substantially all of
Tenant's assets are transferred, provided (x) such merger, consolidation, or
transfer of assets is for a good business purpose and not principally for the
purpose of transferring Tenant's leasehold estate, and (y) the assignee or
successor entity has a net worth at least equal to the net worth of Tenant
immediately prior to such merger, consolidation, or transfer.
It shall be reasonable for the Landlord to withhold its
consent to any assignment or sublease in any of the following instances: (i) an
Event of Default has occurred and is continuing that would not be cured upon the
proposed sublease or assignment; (ii) the assignee or sublessee does not have a
net worth calculated according to generally accepted accounting principles at
least equal to $10 million immediately prior to such assignment or sublease or
the net worth of the Tenant at the time it executed the Lease; (iii) the
intended use of the Premises by the assignee or sublessee is materially
different in comparison to Tenant's use of the Premises; (iv) the intended use
of the Premises by the assignee or sublessee would materially increase the
pedestrian or vehicular traffic to the Premises or the Project; (v) occupancy of
the Premises by the assignee or sublessee would, in Landlord's opinion, violate
an agreement binding upon Landlord or the Project with regard to the identity of
tenants, usage in the Project, or similar matters; (vi) the identity or business
reputation of the assignee or sublessee will, in the good faith judgment of
Landlord, tend to damage the goodwill or reputation of the Project; (vii) the
assignment or sublet is to another tenant in the Project, other than another
tenant occupying the adjacent space to the Premises, and is at rates which are
below those charged by Landlord for comparable space in the Project; (viii) in
the case of a sublease, the subtenant has not acknowledged that the Lease
controls over any inconsistent provision in the sublease or (ix) the proposed
assignee or sublessee is a governmental agency. Tenant and Landlord acknowledge
that each of the foregoing criteria are reasonable as of the date of execution
of this Lease. The foregoing criteria shall not exclude any other reasonable
basis for Landlord to refuse its consent to such assignment or sublease. Any
approved assignment or sublease shall be expressly subject to the terms and
conditions of this Lease. Tenant shall provide to Landlord all information
concerning the assignee or sublessee as Landlord may reasonably request.
Notwithstanding any assignment or subletting, Tenant and any
guarantor or surety of Tenant's obligations under this Lease shall at all times
remain fully responsible and liable for the payment of the rent and for
compliance with all of Tenant's other obligations under this Lease (regardless
of whether Landlord's approval has been obtained for any such assignments or
sublettings). In the event mat the rent due and payable by a sublessee or
assignee (or a combination of the rental payable under such sublease or
assignment plus any bonus or other consideration therefor or incident thereto)
exceeds the rental payable under this Lease, then Tenant shall be bound and
obligated to pay Landlord as additional rent hereunder all such excess rental
and other excess consideration within 10 days following receipt thereof by
Tenant.
If this Lease be assigned or if the Premises be subleased
(whether in whole or in part) or in the event of the mortgage, pledge, or
hypothecation of Tenant's leasehold interest or grant of any concession or
license within the Premises or if the Premises be occupied in whole or in part
by anyone other than Tenant, then upon a default by Tenant hereunder Landlord
may collect rent from the assignee, sublessee, mortgagee, pledgee, party to whom
the leasehold interest was hypothecated, concessionee or licensee or other
occupant and, except to the extent set forth in the preceding paragraph, apply
the amount collected to the next rent payable hereunder; and all such rentals
collected by Tenant shall be held in trust for Landlord and immediately
forwarded to Landlord, No such transaction or collection of rent or application
thereof by Landlord, however, shall be deemed a waiver of these provisions or a
release of Tenant from the further performance by Tenant of its covenants,
duties, or obligations hereunder.
18. INDEMNIFICATION. Except for the negligence or breach of
Landlord, its agents, employees or contractors, and to the extent permitted by
law, Tenant agrees to indemnify, defend and hold harmless Landlord, and
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Landlord's agents, employees and contractors, from and against any and all
losses, liabilities, damages, costs and expenses (including attorneys' fees)
resulting from claims by third parties for injuries to any person and damage to
or theft or misappropriation or loss of property occurring in or about the
Project and arising from Tenant's use and Tenant's occupancy of the Premises or
from any activity, work, or thing done, permitted or suffered by Tenant in or
about the Premises or due to any other act or omission of Tenant, its
subtenants, assignees, invitees, employees, contractors and agents. The
furnishing of insurance required hereunder shall not be deemed to limit Tenant's
obligations under this Paragraph 18.
19. INSPECTION AND ACCESS. Landlord and its agents,
representatives, and contractors may enter the Premises at any reasonable time
to inspect the Premises and to make such repairs as may be required or permitted
pursuant to this Lease and for any other business purpose. Landlord and
Landlord's representatives may enter the Premises during business hours for the
purpose of showing the Premises to prospective purchasers and, during the last
year of the Lease Term, to prospective tenants. Landlord may erect a suitable
sign on the Premises stating the Premises are available to let or that the
Project is available for sale. Landlord may grant easements, make public
dedications, designate common areas and create restrictions on or about the
Premises, provided that no such easement, dedication, designation or restriction
materially interferes with Tenant's use or occupancy of the Premises. At
Landlord's request, Tenant shall execute such instruments as may be necessary
for such easements, dedications or restrictions.
20. QUIET ENJOYMENT. If Tenant shall perform all of the covenants
and agreements herein required to be performed by Tenant, Tenant shall, subject
to the terms of this Lease, at all times during the Lease Term, have peaceful
and quiet enjoyment of the Premises against any person claiming by, through or
under Landlord.
21. SURRENDER. Upon termination of the Lease Term or earlier
termination of Tenant's right of possession, Tenant shall surrender the Premises
to Landlord in the same condition as received, broom clean, ordinary wear and
tear and casualty loss and condemnation covered by Paragraphs 15 and 16
excepted. Any Trade Fixtures, Tenant-Made Alterations and property not so
removed by Tenant as permitted or required herein shall be deemed abandoned and
may be stored, removed, and disposed of by Landlord at Tenant's expense, and
Tenant waives all claims against Landlord for any damages resulting from
Landlord's retention and disposition of such property. All obligations of Tenant
hereunder not fully performed as of the termination of the Lease Term shall
survive the termination of the Lease Term, including without limitation,
indemnity obligations, payment obligations with respect to Operating Expenses
and obligations concerning the condition and repair of the Premises.
22. HOLDING OVER. If Tenant retains possession of the Premises
after the termination of the Lease Term, unless otherwise agreed in writing,
such possession shall be subject to immediate termination by Landlord at any
time, and all of the other terms and provisions of this Lease (excluding any
expansion or renewal option or other similar right or option) shall be
applicable during such holdover period, except that Tenant shall pay Landlord
from time to time, upon demand, as Base Rent for the holdover period, an amount
equal to 150% of the Base Rent in effect on the termination date, computed on a
monthly basis for each month or part thereof during such holding over. All other
payments shall continue under the terms of this Lease. In addition, Tenant shall
be liable for all damages incurred by Landlord as a result of such holding over.
No holding over by Tenant, whether with or without consent of Landlord, shall
operate to extend this Lease except as otherwise expressly provided, and this
Paragraph 22 shall not be construed as consent for Tenant to retain possession
of the Premises.
23. EVENTS OF DEFAULT. Each of the following events shall be an
event of default ("Event of Default") by Tenant under this Lease;
(i) Tenant shall fail to pay any installment of Base Rent
or any other payment required herein when due, and such failure shall
continue for a period of 5 days after notice from Landlord to Tenant
that such payment was due; provided, however, that Landlord shall not
be obligated to provide written notice of such failure more than 2
times in any consecutive 12-month period, and the failure of Tenant to
pay any third or subsequent installment of Base Rent or any other
payment required herein when due in any consecutive 12-month period
shall constitute an Event of Default by Tenant under this Lease without
the requirement of notice or opportunity to cure.
(ii) Tenant or any guarantor or surety of Tenant's
obligations hereunder shall (A) make a general assignment for the
benefit of creditors; (B) commence any case, proceeding or other action
seeking to have an order for relief entered on its behalf as a debtor
or to adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, liquidation, dissolution or composition of it
or its debts or seeking appointment of a receiver, trustee, custodian
or other similar official for it or for all or of any substantial part
of its property (collectively a "proceeding for relief"); (C) become
the subject of any proceeding for relief which is not dismissed within
60 days of its filing or entry; or (D) die or suffer a legal disability
(if Tenant, guarantor, or surety is an individual) or be dissolved or
otherwise fail to maintain its legal existence (if Tenant, guarantor or
surety is a corporation, partnership or other entity).
(iii) Any insurance required to be maintained by Tenant
pursuant to this Lease shall be cancelled or terminated or shall expire
or shall be reduced or materially changed, except, in each case, as
permitted in this Lease.
(iv) Tenant shall not occupy or shall vacate the Premises
or shall fail to continuously operate its business at the Premises for
the permitted use set forth herein, whether or not Tenant is in
monetary or other default under this Lease. Tenant's vacating of the
Premises shall not constitute an Event of Default if,
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prior to vacating the Premises, Tenant has made arrangements reasonably
acceptable to Landlord to (a) insure that Tenant's insurance for the
Premises will not be voided or cancelled with respect to the Premises
as a result of such vacancy, (b) insure that the Premises are secured;
and (c) insure that the Premises will be properly maintained after such
vacation. If Tenant vacates, Tenant shall inspect the Premises at least
once each month and provide Landlord with an informal report on a
quarterly basis as to the condition of the Premises.
(v) Tenant shall attempt or there shall occur any
assignment, subleasing or other transfer of Tenant's interest in or
with respect to this Lease except as otherwise permitted in this Lease.
(vi) Tenant shall fail to discharge any lien placed upon
the Premises in violation of this Lease within 30 days after any such
lien or encumbrance is filed against the Premises.
(vii) Tenant shall fail to comply with any provision of
this Lease other than those specifically referred to in this Paragraph
23, and except as otherwise expressly provided herein, such default
shall continue for more than 30 days after Landlord shall have given
Tenant written notice of such default, unless such default cannot be
cured within 30 days provided Tenant commences and diligently pursues
said cure and completes the cure within 90 days.
24. LANDLORD'S REMEDIES. Upon each occurrence of an Event of
Default and so long as such Event of Default shall be continuing, Landlord may
at any time thereafter at its election: terminate this Lease or Tenant's right
of possession, (but Tenant shall remain liable as hereinafter provided) and/or
pursue any other remedies at law or in equity. Upon the termination of this
Lease or termination of Tenant's right of possession, it shall be lawful for
Landlord, without formal demand or notice of any kind, to re-enter the Premises
by summary dispossession proceedings or any other action or proceeding
authorized by law and to remove Tenant and all persons and property therefrom.
If Landlord re-enters the Premises, Landlord shall have the right to keep in
place and use, or remove and store, all of the furniture, fixtures and equipment
at the Premises.
Except as otherwise provided in the next paragraph, if Tenant
breaches this Lease and abandons the Premises prior to the end of the term
hereof, or if Tenant's right to possession is terminated by Landlord because of
an Event of Default by Tenant under this Lease, this Lease shall terminate. Upon
such termination, Landlord may recover from Tenant the following: (i) the worth
at the time of award of the unpaid Base Rent and other charges under this Lease
that had been earned at the time of termination; (ii) the worth at the time of
award of the amount by which the reasonable value of the unpaid Base Rent and
other charges under this Lease which would have been earned after termination
until the time of award exceeds the amount of such rental loss that Tenant
proves could have been reasonably avoided; (iii) the worth at the time of the
award by which the reasonable value of the unpaid Base Rent and other charges
under this Lease for the balance of the term of this Lease after the time of
award exceeds the amount of such rental loss that Tenant proves could have been
reasonably avoided; and (iv) any other amount necessary to compensate Landlord
for all the detriment proximately caused by Tenant's failure to perform its
obligations under this Lease or that in the ordinary course of things would be
likely to result therefrom. As used herein, the following terms are defined: (a)
the "worth at the time of award" of the amounts referred to in Sections (i) and
(ii) is computed by allowing interest at the lesser of 18 percent per annum or
the maximum lawful rate. The "worth at the time of award" of the amount referred
to in Section (iii) is computed by discounting such amount at the discount rate
of the Federal Reserve Bank of San Francisco at the time of award plus one
percent; (b) the "time of award" as used in clauses (i), (ii), and (iii) above
is the date on which judgment is entered by a court of competent jurisdiction;
(c) The "reasonable value" of the amount referred to in clause (ii) above is
computed by determining the mathematical product of (1) the "reasonable annual
rental value" (as defined herein) and (2) the number of years, including
fractional parts thereof, between the date of termination and the time of award.
The "reasonable value" of the amount referred to in clause (iii) is computed by
determining the mathematical product of (1) the annual Base Rent and other
charges under this Lease and (2) the number of years including fractional parts
thereof remaining in the balance of the term of this Lease after the time of
award.
Even though Tenant has breached this Lease and abandoned the
Premises, which such abandonment of the Premises would constitute an Event of
Default under Paragraph 23(iv) of this Lease, this Lease shall continue in
effect for so long as Landlord does not terminate Tenant's right to possession,
and Landlord may enforce all its rights and remedies under this Lease, including
the right to recover rent as it becomes due. Any such payments due Landlord
shall be made upon demand therefor from time to time and Tenant agrees that
Landlord may file suit to recover any sums falling due from time to time.
Notwithstanding any such reletting without termination, Landlord may at any time
thereafter elect in writing to terminate this Lease for such previous breach.
Notwithstanding anything contained herein to the contrary, if
Landlord terminates Tenant's right to possession without terminating the Lease
after an Event of Default, Landlord shall use commercially reasonable efforts to
relet the Premises; provided, however, (a) Landlord shall not be obligated to
accept any tenant proposed by Tenant, (b) Landlord shall have the right to lease
any other space controlled by Landlord first, and (c) any proposed tenant shall
meet all of Landlord's leasing criteria.
Exercise by Landlord of any one or more remedies hereunder
granted or otherwise available shall not be deemed to be an acceptance of
surrender of the Premises and/or a termination of this Lease by Landlord,
whether by agreement or by operation of law, it being understood that such
surrender and/or termination can be effected only by the written agreement of
Landlord and Tenant. Any law, usage, or custom to the contrary notwithstanding,
Landlord shall have the right at all times to enforce the provisions of this
Lease in strict accordance with the terms hereof; and the failure of Landlord at
any time to enforce its rights under this Lease strictly in accordance with same
shall not be construed as having created a custom in any way or manner contrary
to the specific
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terms, provisions, and covenants of this Lease or as having modified the same.
Tenant and Landlord further agree that forbearance or waiver by Landlord to
enforce its rights pursuant to this Lease or at law or in equity, shall not be a
waiver of Landlord's right to enforce one or more of its rights in connection
with any subsequent default. A receipt by Landlord of rent or other payment with
knowledge of the breach of any covenant hereof shall not be deemed a waiver of
such breach, and no waiver by Landlord of any provision of this Lease shall be
deemed to have been made unless expressed in writing and signed by Landlord. To
the greatest extent permitted by law, Tenant waives the service of notice of
Landlord's intention to re-enter as provided for in any statute, or to institute
legal proceedings to that end, and also waives all right of redemption in case
Tenant shall be dispossessed by a judgment or by warrant of any court or judge.
The terms "enter," "re-enter," "entry" or "re-entry," as used in this Lease, are
not restricted to their technical legal meanings. Any reletting of the Premises
shall be on such terms and conditions as Landlord in its sole discretion may
determine (including without limitation a term different than the remaining
Lease Term, rental concessions, alterations and repair of the Premises, lease of
less than the entire Premises to any tenant and leasing any or all other
portions of the Project before reletting the Premises). Landlord shall not be
liable, nor shall Tenant's obligations hereunder be diminished because of,
Landlord's failure to relet the Premises or collect rent due in respect of such
reletting.
25. TENANT'S REMEDIES/LIMITATION OF LIABILITY. Landlord shall not
be in default hereunder unless Landlord fails to perform any of its obligations
hereunder within 30 days after written notice from Tenant specifying such
failure (unless such performance will, due to the nature of the obligation,
require a period of time in excess of 30 days, then after such period of time as
is reasonably necessary). All obligations of Landlord hereunder shall be
construed as covenants, not conditions; and, except as may be otherwise
expressly provided in this Lease, Tenant may not terminate this Lease for breach
of Landlord's obligations hereunder. All obligations of Landlord under this
Lease will be binding upon Landlord only during the period of its ownership of
the Premises and not thereafter. The term "Landlord" in this Lease shall mean
only the owner, for the time being of the Premises, and in the event of the
transfer by such owner of its interest in the Premises, such owner shall
thereupon be released and discharged from all obligations of Landlord thereafter
accruing, but such obligations shall be binding during the Lease Term upon each
new owner for the duration of such Owner's ownership. Any liability of Landlord
under this Lease shall be limited solely to its interest in the Project, and in
no event shall any personal liability be asserted against Landlord in connection
with this Lease nor shall any recourse be had to any other property or assets of
Landlord.
26. WAIVER OF JURY TRIAL. TENANT AND LANDLORD WAIVE ANY RIGHT TO
TRIAL BY JURY OR TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE, BETWEEN LANDLORD AND TENANT ARISING
OUT OF THIS LEASE OR ANY OTHER INSTRUMENT, DOCUMENT, OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED HERETO.
27. SUBORDINATION. This Lease and Tenant's interest and rights
hereunder are and shall be subject and subordinate at all times to the lien of
any first mortgage, now existing or hereafter created on or against the Project
or the Premises, and all amendments, restatements, renewals, modifications,
consolidations, refinancing, assignments and extensions thereof, without the
necessity of any further instrument or act on the part of Tenant. Tenant agrees,
at the election of the holder of any such mortgage, to attorn to any such
holder. Tenant agrees upon demand to execute, acknowledge and deliver such
instruments, confirming such subordination and such instruments of attornment as
shall be requested by any such holder. Tenant hereby appoints Landlord attorney
in fact for Tenant irrevocably (such power of attorney being coupled with an
interest) to execute, acknowledge and deliver any such instrument and
instruments for and in the name of the Tenant and to cause any such instrument
to be recorded. Notwithstanding the foregoing, any such holder may at any time
subordinate its mortgage to this Lease, without Tenant's consent, by notice in
writing to Tenant, and thereupon this Lease shall be deemed prior to such
mortgage without regard to their respective dates of execution, delivery or
recording and in that event such holder shall have the same rights with respect
to this Lease as though this Lease had been executed prior to the execution,
delivery and recording of such mortgage and had been assigned to such holder.
The term "mortgage" whenever used in this Lease shall be deemed to include deeds
of trust, security assignments and any other encumbrances, and any reference to
the "holder" of a mortgage shall be deemed to include the beneficiary under a
deed of trust.
Tenant shall not be obligated to subordinate the Lease or its
interest therein to any future mortgage, deed of trust or ground lease on the
Project unless concurrently with such subordination the holder of such mortgage
or deed of trust or the ground lessor under such ground lease agrees not to
disturb Tenant's possession of the Premises under the terms of the Lease and
agrees to assume Landlord's obligations under this Lease in the event such
holder or ground lessor acquires title to the Premises through foreclosure, deed
in lieu of foreclosure or otherwise.
28. MECHANIC'S LIENS. Tenant has no express or implied authority
to create or place any lien or encumbrance of any kind upon, or in any manner to
bind the interest of Landlord or Tenant in, the Premises or to charge the
rentals payable hereunder for any claim in favor of any person dealing with
Tenant, including those who may furnish materials or perform labor for any
construction or repairs. Tenant covenants and agrees that it will pay or cause
to be paid all sums legally due and payable by it on account of any labor
performed or materials furnished in connection with any work performed on the
Premises at Tenant's request and that it will save and hold Landlord harmless
from all loss, cost or expense based on or arising out of asserted claims or
liens against the leasehold estate or against the interest of Landlord in the
Premises or under this Lease. Tenant shall give Landlord immediate written
notice of the placing of any lien or encumbrance against the Premises and cause
such lien or encumbrance to be discharged within 30 days of the filing or
recording thereof; provided, however, Tenant may contest such liens or
encumbrances as long as such contest prevents foreclosure of the lien or
encumbrance and Tenant causes such lien or encumbrance to be bonded or insured
over in a manner satisfactory to Landlord within such 30 day period.
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29. ESTOPPEL CERTIFICATES. Tenant agrees, from time to time,
within 10 days after request of Landlord, to execute and deliver to Landlord, or
Landlord's designee, any estoppel certificate requested by Landlord, stating
that this Lease is in full force and effect, the date to which rent has been
paid, that Landlord is not in default hereunder (or specifying in detail the
nature of Landlord's default), the termination date of this Lease and such other
matters pertaining to this Lease as may be requested by Landlord. Tenant's
obligation to furnish each estoppel certificate in a timely fashion is a
material inducement for Landlord's execution of this Lease. No cure or grace
period provided in this Lease shall apply to Tenant's obligations to timely
deliver an estoppel certificate.
30. ENVIRONMENTAL REQUIREMENTS. Except for Hazardous Material
contained in products used by Tenant in de minimis quantities for ordinary
cleaning and office purposes, Tenant shall not permit or cause any party to
bring any Hazardous Material upon the Premises or transport, store, use,
generate, manufacture or release any Hazardous Material in or about the Premises
without Landlord's prior written consent. Tenant, at its sole cost and expense,
shall operate its business in the Premises in strict compliance with all
Environmental Requirements and shall remediate in a manner satisfactory to
Landlord any Hazardous Materials released on or from the Project by Tenant, its
agents, employees, contractors, subtenants or invitees. Tenant shall complete
and certify to disclosure statements as requested by Environmental Requirements
from time to time relating to Tenant's transportation, storage, use, generation,
manufacture or release of Hazardous Materials on the Premises. The term
"Environmental Requirements" means all applicable present and future statutes,
regulations, ordinances, rules, codes, judgments, orders or other similar
enactments of any governmental authority or agency regulating or relating to
health, safety, or environmental conditions on, under, or about the Premises or
the environment, including without limitation, the following: the Comprehensive
Environmental Response, Compensation and Liability Act; the Resource
Conservation and Recovery Act; and all state and local counterparts thereto, and
any regulations or policies promulgated or issued thereunder. The term
"Hazardous Materials" means and includes any substance, material, waste,
pollutant, or contaminant listed or defined as hazardous or toxic, under any
Environmental Requirements, asbestos and petroleum, including crude oil or any
fraction thereof, natural gas or synthetic gas usable for fuel (or mixtures of
natural gas and such synthetic gas). As defined in Environmental Requirements,
Tenant is and shall be deemed to be the "operator" of Tenant's "facility" and
the "owner" of all Hazardous Materials brought on the Premises by Tenant, its
agents, employees, contractors or invitees, and the wastes, by-products, or
residues generated, resulting, or produced therefrom.
Tenant shall indemnify, defend, and hold Landlord harmless
from and against any and all losses (including, without limitation, diminution
in value of the Premises or the Project and loss of rental income from the
Project), claims, demands, actions, suits, damages (including, without
limitation, punitive damages), expenses (including, without limitation,
remediation, removal, repair, corrective action, or cleanup expenses), and costs
(including, without limitation, actual attorneys' fees, consultant fees or
expert fees and including, without limitation, removal or management of any
asbestos brought into the property by Tenant, its agents, employees,
contractors, subtenants, assignees or invitees, or disturbed by Tenant, its
agents, employees, contractors, subtenants, assignees or invitees, in breach of
the requirements of this Paragraph 30, regardless of whether such removal or
management is required by law) which are brought or recoverable against, or
suffered or incurred by Landlord as a result of any release of Hazardous
Materials by Tenant, its agents, employees, contractors, subtenants, assignees
or invitees, or any other breach of the requirements under this Paragraph 30 by
Tenant, its agents, employees, contractors, subtenants, assignees or invitees,
regardless of whether Tenant had knowledge of such noncompliance. The
obligations of Tenant under this Paragraph 30 shall survive any termination of
this Lease.
Landlord shall have access to, and a right to perform
inspections and tests of, the Premises to determine Tenant's compliance with
Environmental Requirements, its obligations under this Paragraph 30, or the
environmental condition of the Premises. Access shall be granted to Landlord
upon Landlord's prior notice to Tenant and at such times so as to minimize, so
far as may be reasonable under the circumstances, any disturbance to Tenant's
operations. Such inspections and tests shall be conducted at Landlord's expense,
unless such inspections or tests reveal that Tenant has not complied with any
Environmental Requirement, in which case Tenant shall reimburse Landlord for the
reasonable cost of such inspection and tests. Landlord's receipt of or
satisfaction with any environmental assessment in no way waives any rights that
Landlord holds against Tenant.
Notwithstanding anything to the contrary in this Paragraph 30,
Tenant shall have no liability of any kind to Landlord as to Hazardous Materials
on the Premises caused or permitted by: (i) Landlord, its agents, employees,
contractors or invitees; or (ii) any other tenants in the Project or their
agents, employees, contractors, subtenants, assignees or invitees; or (iii) any
other person or entity located outside of the Premises or the Project.
31. RULES AND REGULATIONS. Tenant shall, at all times during the
Lease Term and any extension thereof, comply with all reasonable rules and
regulations at any time or from tune to time established by Landlord covering
use of the Premises and the Project. The current rules and regulations are
attached hereto. In the event of any conflict between said rules and regulations
and other provisions of this Lease, the other terms and provisions of this Lease
shall control. Landlord shall not have any liability or obligation for the
breach of any rules or regulations by other tenants in the Project, and shall
uniformly enforce such rules and regulations throughout the Project.
32. SECURITY SERVICE. Tenant acknowledges and agrees that, while
Landlord may patrol the Project, Landlord is not providing any security services
with respect to the Premises and that Landlord shall not be liable to Tenant
for, and Tenant waives any claim against Landlord with respect to, any loss by
theft or any other damage suffered or incurred by Tenant in connection with any
unauthorized entry into the Premises or any other breach of security with
respect to the Premises.
33. FORCE MAJEURE. Except for monetary obligations, neither
Landlord nor Tenant shall be held responsible for delays in the performance of
its obligations hereunder when caused by strikes, lockouts, labor disputes,
- 10 -
acts of God, inability to obtain labor or materials or reasonable substitutes
therefor, governmental restrictions, governmental regulations, governmental
controls, delay in issuance of permits, enemy or hostile governmental action,
civil commotion, fire or other casualty, and other causes beyond the reasonable
control of Landlord or Tenant ("Force Majeure").
34. ENTIRE AGREEMENT. This Lease constitutes the complete
agreement of Landlord and Tenant with respect to the subject matter hereof. No
representations, inducements, promises or agreements, oral or written, have been
made by Landlord or Tenant, or anyone acting on behalf of Landlord or Tenant,
which are not contained herein, and any prior agreements, promises,
negotiations, or representations are superseded by this Lease. This Lease may
not be amended except by an instrument in writing signed by both parties hereto.
35. SEVERABILITY. If any clause or provision of this Lease is
illegal, invalid or unenforceable under present or future laws, then and in that
event, it is the intention of the parties hereto that the remainder of this
Lease shall not be affected thereby. It is also the intention of the parties to
this Lease that in lieu of each clause or provision of this Lease that is
illegal, invalid or unenforceable, there be added, as a part of this Lease, a
clause or provision as similar in terms to such illegal, invalid or
unenforceable clause or provision as may be possible and be legal, valid and
enforceable.
36. BROKERS. Tenant represents and warrants that it has dealt with
no broker, agent or other person in connection with this transaction and that no
broker, agent or other person brought about this transaction, other than the
broker, if any, set forth on the first page of this Lease, and Tenant agrees to
indemnify and hold Landlord harmless from and against any claims by any other
broker, agent or other person claiming a commission or other form of
compensation by virtue of having dealt with Tenant with regard to this leasing
transaction.
37. MISCELLANEOUS. (a) Any payments or charges due from Tenant to
Landlord hereunder shall be considered rent for all purposes of this Lease.
(b) If and when included within the term "Tenant," as used in this
instrument, there is more than one person, firm or corporation, each shall be
jointly and severally liable for the obligations of Tenant.
(c) All notices required or permitted to be given under this Lease
shall be in writing and shall be sent by registered or certified mail, return
receipt requested, or by a reputable national overnight courier service, postage
prepaid, or by hand delivery addressed to the parties at their addresses below,
and with a copy sent to Landlord at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇. Either party may by notice given aforesaid change its address for all
subsequent notices. Except where otherwise expressly provided to the contrary,
notice shall be deemed given upon delivery.
(d) Except as otherwise expressly provided in this Lease or as
otherwise required by law, Landlord's right to withhold any consent or approval
shall not be unreasonably withheld.
(e) At Landlord's request from time to time Tenant shall furnish
Landlord with true and complete copies of its most recent annual and quarterly
financial statements prepared by Tenant or Tenant's accountants and any other
financial information or summaries that Tenant typically provides to its lenders
or shareholders.
(f) Neither this Lease nor a memorandum of lease shall be filed by
or on behalf of Tenant in any public record. Landlord may prepare and file, and
upon request by Landlord Tenant will execute, a memorandum of lease.
(g) The normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be employed
in the interpretation of this Lease or any exhibits or amendments hereto.
(h) The submission by Landlord to Tenant of this Lease shall have
no binding force or effect, shall not constitute an option for the leasing of
the Premises, nor confer any right or impose any obligations upon either party
until execution of this Lease by both parties.
(i) Words of any gender used in this Lease shall be held and
construed to include any other gender, and words in the singular number shall be
held to include the plural, unless the context otherwise requires. The captions
inserted in this Lease are for convenience only and in no way define, limit or
otherwise describe the scope or intent of this Lease, or any provision hereof,
or in any way affect the interpretation of this Lease.
(j) Any amount not paid by Tenant within 5 days after its due date
in accordance with the terms of this Lease shall bear interest from such due
date until paid in full at the lesser of the highest rate permitted by
applicable law or 15 percent per year. It is expressly the intent of Landlord
and Tenant at all times to comply with applicable law governing the maximum rate
or amount of any interest payable on or in connection with this Lease. If
applicable law is ever judicially interpreted so as to render usurious any
interest called for under this Lease, or contracted for, charged, taken ,
reserved, or received with respect to this Lease, then it is Landlord's and
Tenant's express intent that all excess amounts theretofore collected by
Landlord be credited on the applicable obligation (or, if the obligation has
been or would thereby be paid in full, refunded to Tenant), and the provisions
of this Lease immediately shall be deemed reformed and the amounts thereafter
collectible hereunder reduced, without the necessity of the execution of any new
document, so as to comply with the applicable law, but so as to permit the
recovery of the fullest amount otherwise called for hereunder.
- 11 -
(k) Construction and interpretation of this Lease shall be
governed by the laws of the state in which the Project is located, excluding any
principles of conflicts of laws.
(1) Time is of the essence as to the performance of Tenant's and
Landlord's obligations under this Lease.
(m) All exhibits and addenda attached hereto are hereby
incorporated into this Lease and made a part hereof. In the event of any
conflict between such exhibits or addenda and the terms of this Lease, such
exhibits or addenda shall control.
(n) ATTORNEY'S FEES. If either party commences in action against
the other arising out of or in connection with the Lease, the prevailing party
shall be entitled to recover from the losing party reasonable attorneys' fees
and costs of suit.
38. LANDLORD'S LIEN/SECURITY INTEREST. Intentionally deleted.
39. LIMITATION OF LIABILITY OF TRUSTEES, SHAREHOLDERS, AND
OFFICERS OF PROLOGIS TRUST. Any obligation or liability whatsoever of ProLogis
Trust, a Maryland real estate investment trust, which may arise at any time
under this Lease or any obligation or liability which may be incurred by it
pursuant to any other instrument, transaction, or undertaking contemplated
hereby shall not be personally binding upon, nor shall resort for the
enforcement thereof be had to the property of, its trustees, directors,
shareholders, officers, employees or agents, regardless of whether such
obligation or liability is in the nature of contract, tort, or otherwise.
IN WITNESS WHEREOF. Landlord and Tenant have executed this Lease as of
the day and year first above written.
TENANT: LANDLORD:
KINETICS FLUID SYSTEMS, a California PROLOGIS TRUST, a Maryland real estate
corporation investment trust
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
---------------
▇▇▇ ▇▇▇▇▇▇▇, Senior Vice President By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Managing Director
Address: Address:
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: 408/▇▇▇-▇▇▇▇ Phone: 972/▇▇▇-▇▇▇▇
FAX: 408/▇▇▇-▇▇▇▇ ▇▇X: 972/▇▇▇-▇▇▇▇
- 12 -
Rules and Regulations
1. The sidewalk, entries, and driveways of the Project shall not be
obstructed by Tenant, or its agents, or used by them for any purpose
other than ingress and egress to and from the Premises.
2. Tenant shall not place any objects, including antennas, outdoor
furniture, etc., in the parking areas, landscaped areas or other areas
outside of its Premises, or on the roof of the Project.
3. Except for seeing-eye dogs, no animals shall be allowed in the offices,
halls, or corridors in the Project.
4. Tenant shall not disturb the occupants of the Project or adjoining
buildings by the use of any radio or musical instrument or by the
making of loud or improper noises.
5. If Tenant desires telegraphic, telephonic or other electric connections
in the Premises, Landlord or its agent will direct the electrician as
to where and how the wires may be introduced; and, without such
direction, no boring or cutting of wires will be permitted. Any such
installation or connection shall be made at Tenant's expense.
6. Tenant shall not install or operate any steam or gas engine or boiler,
or other mechanical apparatus in the Premises, except as specifically
approved in the Lease. The use of oil, gas or inflammable liquids for
heating, lighting or any other purpose is expressly prohibited.
Explosives or other articles deemed extra hazardous shall not be
brought into the Project.
7. Parking any type of recreational vehicles is specifically prohibited on
or about the Project. Except for the overnight parking of operative
vehicles, no vehicle of any type shall be stored in the parking areas
at any time. In the event that a vehicle is disabled, it shall be
removed within 48 hours. There shall be no "For Sale" or other
advertising signs on or about any parked vehicle. All vehicles shall be
parked in the designated parking areas in conformity with all signs and
other markings. All parking will be open parking, and no reserved
parking, numbering or lettering of individual spaces will be permitted
except as specified by Landlord.
8. Tenant shall maintain the Premises free from rodents, insects and other
pests.
9. Landlord reserves the right to exclude or expel from the Project any
person who, in the judgment of Landlord, is intoxicated or under the
influence of liquor or drugs or who shall in any manner do any act in
violation of the Rules and Regulations of the Project.
10. Tenant shall not cause any unnecessary labor by reason of Tenant's
carelessness or indifference in the preservation of good order and
cleanliness. Landlord shall not be responsible to Tenant for any loss
of property on the Premises, however occurring, or for any damage done
to the effects of Tenant by the janitors or any other employee or
person.
11. Tenant shall give Landlord prompt notice of any defects in the water,
lawn sprinkler, sewage, gas pipes, electrical lights and fixtures,
heating apparatus, or any other service equipment affecting the
Premises.
12. Tenant shall not permit storage outside the Premises, including without
limitation, outside storage of trucks and other vehicles, or dumping of
waste or refuse or permit any harmful materials to be placed in any
drainage system or sanitary system in or about the Premises.
13. All moveable trash receptacles provided by the trash disposal firm for
the Premises must be kept in the trash enclosure areas, if any,
provided for that purpose.
14. No auction, public or private, will be permitted on the Premises or the
Project.
15. No awnings shall be placed over the windows in the Premises except with
the prior written consent of Landlord.
16. The Premises shall not be used for lodging, sleeping or cooking or for
any immoral or illegal purposes or for any purpose other than that
specified in the Lease. No gaming devices shall be operated in the
Premises.
17. Tenant shall ascertain from Landlord the maximum amount of electrical
current which can safely be used in the Premises, taking into account
the capacity of the electrical wiring in the Project and the Premises
and the needs of other tenants, and shall not use more than such safe
capacity. Landlord's consent to the installation of electric equipment
shall not relieve Tenant from the obligation not to use more
electricity than such safe capacity.
18. Tenant assumes full responsibility for protecting the Premises from
theft, robbery and pilferage.
19. Tenant shall not install or operate on the Premises any machinery or
mechanical devices of a nature not directly related to Tenant's
ordinary use of the Premises and shall keep all such machinery free of
vibration, noise and air waves which may be transmitted beyond the
Premises.
-13-
ADDENDUM ONE
BASE RENT ADJUSTMENTS
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED 7-13, 2000, BETWEEN
PROLOGIS AND TRUST
KINETICS FLUID SYSTEMS
Base Rent shall equal the following amounts for the respective periods
set forth below:
Period Monthly Base Rent
------ -----------------
3 Months l to 36 02/01/01 - 02/01/04 $28,800.00
2 Months 37 to 60 02/01/04 - 02/01/06 $31,680.00
2 Months 61 to 84 02/01/06 - 02/01/08 $34,560.00
ADDENDUM TWO
CONSTRUCTION
(ALLOWANCE AMORTIZED)
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED 7-13, 2000, BETWEEN
PROLOGIS TRUST
and
KINETICS FLUID SYSTEMS
(a) Landlord agrees to furnish an allowance of up to $432,000.00
for Tenant's use for the installation of its Tenant Improvements, and in no
event shall Landlord have any obligation to pay for any costs of the Tenant
Improvements in excess of such amount. If the cost of the Tenant Improvements
exceeds such amount, such overage shall be borne by Tenant, and repaid to
Landlord, together with interest at 13% per annum, in equal monthly installments
over the Lease Term; provided, however, in no event shall Landlord be obligated
to amortize any portion of such overage in excess of $144,000.00 and any overage
in excess of such amount shall be paid by Tenant. As security for a portion of
the amortized costs of the Tenant Improvements, Tenant shall provide Landlord
with an unconditional, irrevocable letter of credit in the amount of $72,000.00
from a bank reasonably acceptable to Landlord and in form substantially similar
to the sample attached hereto. The letter of credit shall either provide that it
does not expire until the end of the Lease Term or, if it is for less than the
full term of the Lease, shall be renewed by Tenant at least 30 days prior to its
expiration during the term of the Lease. The letter of credit shall provide for
20% annual reductions ($14,400.00), such that the total amount of the letter of
credit required shall be reduced to: $57,600.00 the first anniversary of its
issuance, $43,200.00 on the second anniversary of its issuance, $28,800.00 on
the third anniversary of its issuance, and $14,400.00 on the fourth anniversary
of its issuance. The letter of credit shall provide that it may be drawn down
upon by Landlord at any time Landlord delivers its site draft to the bank. If
Landlord sells or conveys the Premises, Tenant shall, at Landlord's request,
cooperate in having the letter of credit transferred to the purchaser. If the
letter of credit is ever drawn upon by Landlord pursuant to the terms of the
Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the
letter of credit to be restored to its original amount.
(b) Subject to applicable ordinances and building codes governing
Tenant's right occupy or perform in the Premises, Tenant and its contractors
shall have access to the Premises for a period of ninety (90) days from the
Landlord's contractor declares the Building to be shell complete, or such
earlier date as Landlord, its contractor, Tenant and Tenant's contractor shall
unanimously agree is appropriate, free of any obligation to pay Base Rent or
estimated Operating Expenses, in order to install the Tenant Improvements,
provided that Tenant does not thereby interfere with the completion of
construction of the Building or cause any labor dispute as a result of such
installations, and provided further that Tenant does hereby agree to indemnify,
defend, and hold Landlord harmless from any loss or damage to such property, and
all liability, loss, or damage arising from any injury to the Project or the
property of Landlord, its contractors, subcontractors, or materialmen, and any
death or personal injury to any person or persons arising out of such
installations, unless any such loss, damage, liability, death, or personal
injury was caused by Landlord's negligence.
(c) Tenant's installation of the Tenant Improvements in the
Premises shall be performed in accordance with the provisions governing
Tenant-Made Alterations and Trade Fixtures in the Lease, and shall be subject to
Tenant providing to Landlord satisfactory evidence of insurance for personal
injury and property damage related to such installations and satisfactory
payment arrangements with respect to installations permitted hereunder. Delay in
putting Tenant in possession of the Premises shall not serve to extend the term
of this Lease or to make Landlord liable for any damages arising therefrom.
ATTACHMENT ONE TO ADDENDUM TWO
FORM OF LETTER OF CREDIT FOR AMORTIZED TENANT IMPROVEMENT COSTS
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED 7-13, 2000, BETWEEN
PROLOGIS TRUST
and
KINETICS FLUID SYSTEMS
[LETTERHEAD OF LETTER OF CREDIT BANK]
[DATE]
ProLogis Trust
____________________
____________________
Attention: _______________
Re: Irrevocable Transferrable Letter of Credit
No.__________________________________________
Beneficiary:
By order of our client, Kinetics Fluid Systems (the "Applicant"). we
hereby establish this Irrevocable Transferrable Letter of Credit No._________in
your favor for an amount up to but not exceeding the aggregate sum of Seventy
Two Thousand and No/100 Dollars ($72,000.00) (as reduced from time to time in
accordance with the terms hereof, the "Letter of Credit Amount"), effective
immediately, and expiring on the close of business at our office at the address
set forth above one year from the date hereof unless renewed as hereinafter
provided.
Funds under this Letter of Credit are available to you on or prior to
the expiry date against presentation by you of your (i) sight drafts drawn on us
in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii)
request in the form of Annex 2 hereto (such sight draft and request, together
referred to as a "Drawing Request"), sight draft(s), completed and signed by one
of your officers. Presentation of your Drawing Requests may be made by you to us
at the address set forth above or may be made by facsimile transmission, to the
following facsimile number_______. You may present to us one or more Drawing
Requests from time to time prior to the expiry date in an aggregate amount not
to exceed the Letter of Credit Amount then in effect (it being understood that
the honoring by us of each Drawing Request shall reduce the Letter of Credit
Amount then in effect).
This Letter of Credit will be automatically renewed for a one-year
period upon the expiration date set forth above and upon each anniversary of
such date, unless at least sixty (60) days prior to such expiration date, or
prior to any anniversary of such date, we notify both you and the Applicant in
writing by certified mail that we elect not to so renew the Letter of Credit;
provided, however, that the total amount of the Letter of Credit shall be
reduced by 20% ($14,400,00) upon each renewal.
This Letter of Credit sets forth in full the terms of our undertaking
and such undertaking shall not in any way be modified, amended or amplified by
reference to any document or instrument referred to herein or in which this
Letter of Credit is referred to or to which this Letter of Credit relates, and
no such reference shall be deemed to incorporate herein by reference any
document or instrument.
All bank charges and commissions incurred in this transaction are for
the Applicant's account.
This Letter of Credit is transferable by you and your successors and
assigns any number of times in its entirely and not in part, but only by
delivery to us of a Notice of Assignment in the form of Annex 3 hereto.
We hereby agree with the drawers, endorsers, and bona fide holders of
drafts drawn under and in compliance with the terms of this Letter of Credit
that such drafts will be duly honored upon presentation to the drawee from our
own funds and not the funds of the Applicant and shall be available to such
drawers, endorsers, and bona fide holders, as the case may be, on or before
noon, New York time, on the Business Day (defined below) next following the date
on which such drafts are received by us. "Business Day" shall mean any day which
is not a Saturday, Sunday or day on which we are required or authorized by law
to be closed in New York, New York.
To the extent not inconsistent with the express terms hereof, this
Letter of Credit shall be governed by, and construed in accordance with, the
terms of the Uniform Customs and Practice for Commercial Documentary Credits
(1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters
not governed by the UCP 500, this Letter of Credit shall be governed by and
construed in accordance with the laws of the State of New York.
Very truly yours,
[NAME OF LETTER OF CREDIT BANK]
By:__________________________________________
Name: _______________________________________
Title:_______________________________________
ANNEX 1
SIGHT DRAFT
___, 200_
For value received, at sight pay to the order of ProLogis Trust, the
sum of [Amount in words] [Amount in Figures] United States Dollars drawn under
[Name of Letter of Credit Bank] Irrevocable Transferable Letter of Credit No.
_______________________dated ___________________, 200__.
PROLOGIS TRUST
By:__________________________________________
Name: _______________________________________
Title:_______________________________________
ANNEX 2
DRAWING REQUEST
_________, 200_
[NAME AND ADDRESS OF LETTER OF CREDIT
BANK]
Re: Irrevocable Transferable Letter of Credit No.____(the
"Letter of Credit")
The undersigned (the "Beneficiary"), hereby certifies to [Name of
Letter of Credit Bank] (the "Issuer") that:
(a) The Beneficiary is making a request for payment in lawful
currency of the United States of America under Irrevocable Transferable Letter
of Credit No._____(the "Letter of Credit") in the amount of $____.
(b) The Letter of Credit Amount (as defined in the Letter of
Credit) as of the date hereof and prior to payment of the amount demanded in
this Drawing Request is $____. The amount requested by this Drawing Request does
not exceed the Letter of Credit Amount.
[(c) Demand is made for payment under the Letter of Credit as a
result of the occurrence and continuation of an Event of Default (as defined in
the Lease Agreement).]
Please wire transfer the proceeds of the drawing to the following
account of the Beneficiary at the financial institution indicated below:
___________________________
___________________________
___________________________
Unless otherwise defined, all capitalized terms used herein have the
meanings provided in, or by reference in, the Letter of Credit.
IN WITNESS WHEREOF, the undersigned has duly executed and delivered
this Drawing Request as of the____day of ________, 200_.
PROLOGIS TRUST
By:__________________________________________
Name: _______________________________________
Title:_______________________________________
ANNEX 3
NOTICE OF ASSIGNMENT
________, 200_
[NAME AND ADDRESS OF LETTER
OF CREDIT BANK]
Re: Irrevocable Transferable Letter of Credit No. ____
The undersigned (the "Beneficiary"), hereby notifies [Name of Letter of
Credit Bank] (the "Issuer") that it has irrevocably assigned the
above-referenced Letter of Credit to ____ (the "Assignee") with an address
at _____________ effective as of the date the Issuer receives this Notice of
Assignment. The Assignee acknowledges and agrees that the Letter of Credit
Amount may have been reduced pursuant to the terms thereof, and that the
Assignee is bound by any such reduction.
IN WITNESS WHEREOF, the undersigned has duly executed and delivered
this Notice of Assignment as of this ____ day of ________, 200_.
PROLOGIS TRUST
By:__________________________________________
Name: _______________________________________
Title:_______________________________________
Agreed:
[Assignee]
____________
ADDENDUM THREE
ONE RENEWAL OPTION AT MARKET
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED 7-13, 2000, BETWEEN
PROLOGIS TRUST
AND
KINETICS FLUID SYSTEMS
(a) Provided that as of the time of the giving of the Extension
Notice and the Commencement Date of the Extension Term, (x) Tenant is the Tenant
originally named herein, (y) Tenant actually occupies all of the Premises
initially demised under this Lease and any space added to the Premises, and (z)
no Event of Default exists or would exist but for the passage of time or the
giving of notice, or both; then Tenant shall have the right to extend the Lease
Term for an additional term of 5 years (such additional term is hereinafter
called the "Extension Term") commencing on the day following the expiration of
the Lease Term (hereinafter referred to as the "Commencement Date of the
Extension Term"). Tenant shall give Landlord notice (hereinafter called the
"Extension Notice") of its election to extend the term of the Lease Term at
least 6 months, but not more than 9 months, prior to the scheduled expiration
date of the Lease Term.
(b) The Base Rent payable by Tenant to Landlord during the
Extension Term shall be the greater of (i) the Base Rent applicable to the last
year of the initial Lease Term and (ii) the then prevailing market rate for
comparable space in the Project and comparable buildings in the vicinity of the
Project, taking into account the size of the Lease, the length of the renewal
term, market escalations and the credit of Tenant. The Base Rent shall not be
reduced by reason of any costs or expenses saved by Landlord by reason of
Landlord's not having to find a new tenant for such premises (including, without
limitation, brokerage commissions, costs of improvements, rent concessions or
lost rental income during any vacancy period). In the event Landlord and Tenant
fail to reach an agreement on such rental rate and execute the Amendment
(defined below) at least 4 months prior to the expiration of the Lease, then
Tenant's exercise of the renewal option shall be deemed withdrawn and the Lease
shall terminate on its original expiration date.
(c) The determination of Base Rent does not reduce the Tenant's
obligation to pay or reimburse Landlord for Operating Expenses and other
reimbursable items as set forth in the Lease, and Tenant shall reimburse and pay
Landlord as set forth in the Lease with respect to such Operating Expenses and
other items with respect to the Premises during the Extension Term without
regard to any cap on such expenses set forth in the Lease.
(d) Except for the Base Rent as determined above, Tenant's
occupancy of the Premises during the Extension Term shall be on the same terms
and conditions as are in effect immediately prior to the expiration of the
Tenant Lease Term; provided, however, Tenant shall have no further right to any
allowances, credits or abatements or any options to expand, contract, renew or
extend the Lease.
(e) If Tenant does not give the Extension Notice within the period
set forth in paragraph (a) above, Tenant's right to extend the Lease Term shall
automatically terminate. Time is of the essence as to the giving of the
Extension Notice.
(f) Landlord shall have no obligation to refurbish or otherwise
improve the Premises for the Extension Term. The Premises shall be tendered on
the Commencement Date of the Extension Term in "as-is" condition.
(g) If the Lease is extended for the Extension Term, then Landlord
shall prepare and Tenant shall execute an amendment to the Lease confirming the
extension of the Lease Term and the other provisions applicable thereto (the
"Amendment").
(h) If Tenant exercises its right to extend the term of the Lease
for the Extension Term pursuant to this Addendum, the term "Lease Term" as used
in the Lease, shall be construed to include, when practicable, the Extension
Term except as provided in (d) above.
ADDENDUM FOUR
MOVE-OUT CONDITIONS
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED 7-13, 2000, BETWEEN
PROLOGIS TRUST
AND
KINETICS FLUID SYSTEMS
Per Paragraph 21, Tenant is obligated to check and address prior to
move-out of the Premises the following items. Landlord expects to receive the
Premises in a well maintained condition, with normal wear and tear of certain
areas acceptable. The following list is designed to assist Tenant in the
move-out procedures but is not intended to be all inclusive.
1. All lighting is to be placed into good working order. This includes
replacement of bulbs, ballasts, and lenses as needed.
2. All truck doors and dock levelers should be serviced and placed in good
operating order. This would include the necessary replacement of any
dented truck door panels and adjustment of door tension to insure
proper operation. All door panels which are replaced need to be painted
to match the Building standard.
3. All structural steel columns in the warehouse and office should be
inspected for damage. Repairs of this nature should be pre-approved by
the Landlord prior to implementation.
4. Heating/air-conditioning systems should be placed in good working
order, including the necessary replacement of any parts to return the
unit to a well maintained condition. This includes warehouse heaters
and exhaust fans. Upon move-out, Landlord will have an exit inspection
performed by a certified mechanical contractor to determine the
condition.
5. All holes in the sheet rock walls should be repaired prior to move-out.
6. The carpets and vinyl tiles should be in a reasonably clean condition
and should not have any holes or chips in them. Landlord will accept
normal wear on these items provided they appear to be in a maintained
condition.
7. Facilities should be returned in a clean condition, which would include
cleaning of the coffee bar, restroom areas, windows, and other portions
of the space.
8. The warehouse should be in broom clean condition with all inventory and
racking removed. There should be no protrusion of anchors from the
warehouse floor and all holes should be appropriately patched. If
machinery /equipment is removed, the electrical lines should be
properly terminated at the nearest junction box.
9. All exterior windows with cracks or breakage should be replaced.
10. The Tenant shall provide keys for all locks on the Premises, including
front doors, rear doors, and interior doors.
11. Items that have been added by the Tenant and affixed to the Building
will remain the property of Landlord, unless agreed otherwise. This
would include but is not limited to mini-blinds, air conditioners,
electrical, water heaters, cabinets, flooring, etc. Please note that if
modifications have been made to the space, such as the addition of
office areas, Landlord retains the right to have the Tenant remove
these at Tenant's expense.
12. All electrical systems should be left in a safe condition that conforms
to code. Bare wires and dangerous installations should be corrected
prior to move-out.
13. All plumbing fixtures should be in good working order, including the
water heater. Faucets and toilets should not leak.
14. All dock bumpers must be left in place and well secured.
ADDENDUM FIVE
SIGN SPECIFICATIONS
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED 7 - 13, 2000, BETWEEN
PROLOGIS TRUST
AND
KINETICS FLUID SYSTEMS
Per Paragraph 13, signage at the Project is subject to restrictions as noted
below. This is controlled to maintain a consistent overall visual appeal of the
building. Tenant may install white vinyl lettering on your front door, or the
glass next to the front door, with Tenant's company name only. The lettering may
not exceed 4" in height. No other storefront graphics are allowed.
Alternatively, Tenant may install one exterior sign which meets the standard
sign specifications for the Project.
I. INTRODUCTION
The intent of these sign criteria is to establish and maintain
guidelines consistent with the signage policies of the
Landlord and the City or County, as appropriate. Further, the
purpose is to assure a standard conformance for the design,
size, fabrication techniques, and materials for signage for
the project and for tenant identification.
II. GENERAL REQUIREMENTS
A. Each Tenant will be supplied a copy of the sign
criteria prior to lease agreement.
B. Each Tenant sign shall be designed, fabricated and
installed in accordance with this sign criteria and
consistent with the Sign Code of the City or County
as amended from time to time by the governing
authority.
C. Landlord's written approval of Design Drawings, and
Working Shop Drawings is required prior to the
commencement of Tenant construction.
D. Sign permits must be obtained from the City or County
prior to installation of signage.
E. Signs installed without written approval of the
Landlord or the appropriate city permit may be
subject to removal and proper reinstallation at
Tenant's expense. Damage may be assessed to cover
costs of repairs to sign band or removal of signage
resulting from unapproved installations.
F. Tenant and his sign contractor shall repair any
damage caused during installation of signage.
G. No labels shall be permitted on the exposed surface
of signs, except those required by local ordinance.
Those required must be installed in an inconspicuous
location.
H. Flashing, strobing, moving or audible signs are not
permitted.
I. No window signs with the exception of suite numbers
are permitted without the express approval of
Landlord.
J. No portable signs are to be displayed on site.
K. No secondary exterior signs are to be placed on
building wall elevations.
L. No freestanding and/or pylon type exterior signs will
be permitted without Landlord's prior approval.
III. TENANT RESPONSIBILITIES
Each Tenant shall, at its own expense, provide and maintain
its own identification sign in accordance with specifications
noted herein.
IV. FASCIA-MOUNTED EXTERIOR SIGN
A. A sign fascia area will be provided for each Tenant
at the panels above the storefront lease line. Each
Tenant sign and/or logo sign shall be mounted in this
space in conformance with the attached sign exhibits.
B. Each Tenant will be allowed to have only one
wall-mounted sign. Any variance to the quantity,
size, mounting method will be allowed only upon
Landlord's written approval.
C. The sign panel shall be a .080 aluminum pan type sign
with an acrylic urethane finish. The specified size
of the sign shall be:
(1) 4' x 10' (on 12' face panel)
(2) 4' x 12' (on 18' & 20' face panels)
The Tenant I.D. sign cannot exceed 80% of the
building wall panel space available.
D. The sign panel shall have 90 degree corners and 1"
flanges. The sign background color will be painted to
match the accent band on the building. The background
color of the sign will be visible on at least
one-half of the sign or as approved by ProLogis.
E. The program allows for the use of a corporate logo
and letter styles at the discretion of the Tenant.
Final approval of logo and letter style will be by
the Landlord. The logo colors are optional, however
care must be taken to select colors and images that
will be comparable and legible on the specified
background. The color of the lettering identifying
the Tenant will be PMS 343 (green) or as approved by
the Landlord.
F. Sign layouts and colors must have written approval by
the Landlord prior to fabrication. The logo, when
applicable, will not exceed more than 50% of the sign
face.
G. There are two approved methods for applying the copy
to the sign background:
(1) Acrylic urethane
(2) Vinyl (high performance - seven year grade)
H. A margin equal to at least one-half of the height of
the type should appear to the left, right, top and
bottom of the Tenant name. Margin parameters will not
apply to the logo area of the sign. Neutral space
between a two line sign shall be a minimum of
one-third the height of the letter type, The sign
panel will be mounted on the building face in
conformance with Landlord standards; mounting clips
(minimum 1/8" x 1" x 1" x 2" long aluminum angle w/
red head anchors - no Kwick bolts allowed), no
exposed fasteners through the face of the sign panel.
The correct design, construction and mounting of the
sign panel. The correct design, construction and
mounting of the sign is the responsibility of the
Tenant and the sign contractor. Any signage that is
constructed/installed improperly shall be removed and
corrected and reinstalled by the Tenant/Contractor at
their expense.
I. All signs erected within the City of Austin and the
extra territorial jurisdiction that describe the
location of a business will require a sign permit.
Sign permits will require payment for:
(1) Site Inspection
(2) Construction Permit
(3) Application Fee
These costs are the responsibility of the Tenant.
Licensed sign contractors/companies are required to
acquire these permits prior to installation of the
sign. Failure to acquire permits will not release the
Tenant from responsibility to acquire a permit for
the sign.
J. All Copy shall be installed vertically and
horizontally, centered on sign band fascia, and shall
not exceed a horizontal length of 80 percent of
allowable fascia panel.
V. MONUMENT SIGN
Monument sign will be provided by the Landlord. Tenant shall
pay to provide Tenant sign letters to match Landlord
standards.
VI. MISCELLANEOUS SIGNAGE
A. Front Door Signage: Business name, address and
operating hours shall be white vinyl in Landlord
approved letter style. Landlord to approve all front
door signage prior to installation.
B. Dock Door Numbers: Provided by Landlord.
C. Suite Signs: Provided by Landlord.
D. Building Address: Provided by Landlord.
VII. TENANT SIGN SUBMISSIONS
A. Tenant sign contractors shall submit all Working Shop
Drawings to the Landlord or his appointed
representative for approval. Allow a minimum of ten
working days, or two weeks, for Landlord review and
approval.
B. All submissions to include two (2) blueline prints.
An approved copy will be returned.
C. Shop Drawings must include:
(1) Full and complete dimensions
(2) Letter style, face (color, material and
thickness), returns (color, material and
thickness).
VII. APPROVALS
No sign shall be installed without first securing the
necessary permits from the appropriate governing jurisdiction.
Artwork and sign location are to be approved in writing by the
Landlord or its appointed representative prior to
installation. Landlord reserves the right to reject any sign
that does not comply with the intent and spirit of these sign
criteria.
ADDENDUM SIX
HVAC MAINTENANCE CONTRACT
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED 7 - 13, 2000, BETWEEN
PROLOGIS TRUST
AND
KINETICS FLUID SYSTEMS
Paragraph 11, captioned "TENANT REPAIRS," is revised to include the following:
Tenant agrees to enter into and maintain through the term of the Lease,
a regularly scheduled preventative maintenance/service contract for servicing
all hot water, heating and air conditioning systems and equipment within the
Premises. Landlord requires a qualified HVAC contractor perform this work. A
certificate must be provided to the Landlord upon occupancy of the leased
Premises.
The service contract must become effective within thirty (30) days of
occupancy, and service visits should be performed on a quarterly basis. Landlord
suggests that Tenant send the following list to a qualified HVAC contractor to
be assured that these items are included in the maintenance contract:
1. Adjust belt tension;
2. Lubricate all moving parts, as necessary;
3. Inspect and adjust all temperature and safety controls;
4. Check refrigeration system for leaks and operation;
5. Check refrigeration system for moisture;
6. Inspect compressor oil level and crank case heaters;
7. Check head pressure, suction pressure and oil pressure;
8. Inspect air filters and replace when necessary;
9. Check space conditions;
10. Check condensate drains and drain pans and clean, if
necessary;
11. Inspect and adjust all valves;
12. Check and adjust dampers;
13. Run machine through complete cycle.
ADDENDUM SEVEN
SPECIAL PROVISIONS
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED 7 - 13, 2000, BETWEEN
PROLOGIS TRUST
AND
KINETICS FLUID SYSTEMS
1. Termination of Existing Leases. Provided that no Event of Default shall
then exist and no condition shall then exist which with me passage of
time or giving of notice, or both, would constitute an Event of
Default, upon Tenant's written request, Landlord agrees to terminate
the remaining Term of either or both of the Lease Agreements by and
between Landlord and Tenant for 22,400 square feet of space occupied by
Tenant in Walnut Creek Corporate Center #9 ("WCCC #9) and 16,000 square
feet of space occupied by Tenant in Corridor Park Corporate Center #5
("CPCC #5), effective upon the occurrence of the last of the following
events: (i) Tenant's payment to Landlord of the then remaining balance
of the costs of the unamortized tenant improvements installed for
Tenant's benefit at WCCC #9 and/or CPCC #5, if any; (ii) the
Commencement Date of this Lease; and (iii) Tenant's surrender to
Landlord of the premises at WCCC #9 and/or CPCC #5 in accordance with
the terms of the Move-Out Conditions Addendum attached to this Lease.
2. Free Moving Period. Upon the earlier to occur of the expiration of the
90-day period provided for Tenant's installation of its Tenant
Improvements (as provided in the Construction Addendum) or the
Commencement Date, Tenant shall commence payment of Base Rent and
Operating Expenses at the Premises, and shall have fourteen (14) days
to move its property to the Premises from WPCC #9 and/or CPCC #5.
Tenant shall have no obligation to pay Base Rent and estimated
Operating Expenses for the space(s) from which it is moving during such
14-day period.
3. DELAYS IN COMMENCEMENT DATE: IN THE EVENT THE TENANT IMPROVEMENT DATE
IS DELAYED BEYONDS NOVEMBER 2, 2000. THE LEASE COMMENCEMENT DATE SHALL
BE EXTENDED ONE DAY FOR EACH DAY THE TENANT IMPROVEMENT COMMENCEMENT
DATE IS DELAYS.
EXHIBIT A
SITE PLAN
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED 7/13, 2000, BETWEEN
PROLOGIS TRUST
AND
KINETICS FLUID SYSTEMS
THIRD AMENDMENT TO LEASE AGREEMENT
THE THIRD AMENDMENT TO LEASE AGREEMENT ("Third Amendment") made this
18th day of June, 2003 by and between ProLogis formerly known as Security
Capital Industrial Trusts "Landlord" and Celerity Group, Inc., a California
Corporation formerly known as Kinetics Fluid Systems Inc., hereinafter referred
to as "Tenant", in Premises known as ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇, located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, situated in the city of Austin,
State of Texas.
WITNESSETH:
WHEREAS, Landlord and Tenant entered into that certain Lease Agreement
dated My 13, 2000, as modified by that certain First Amendment dated May 16,
2001, and that certain Second Amendment dated April 29, 2003, (collectively the
"Lease"), under the terms of which Landlord leased approximately 72,000 square
feet in Corridor Park Corporate Center, Building 11, (hereinafter referred to as
the "Premises"); and
WHEREAS, the parties hereto now desire to amend and modify said Lease
as more fully hereinafter set forth.
AGREEMENT:
NOW, THEREFORE, in consideration of mutual Covenants and Agreements
contained herein, the Lease is modified and amended as set forth below:
1. Effective June 1, 2003, Tenant will no longer be
required to post security for additional amortized costs in the form of
a Letter of Credit, as detailed in Addendum Two to the Lease Agreement.
2. Effective June 1, 2003, Tenant will post a cash
security deposit of $14,400.00. The Security Deposit shall be held by
Landlord as security for the performance of Tenant's obligations under
this Lease. The Security Deposit is not an advance rental deposit or a
measure of Landlord's damages in case of Tenant's default. Upon each
occurrence of an Event of Default (hereinafter defined), Landlord may
use all or part of the Security Deposit to pay delinquent payments due
under this Lease, and the cost of any damage, injury, expense or
liability caused by such Event of Default, without prejudice to any
other remedy provided herein or provided by law. Tenant shall pay
Landlord on demand the amount that will restore the Security Deposit to
its original amount. Landlord's obligation respecting the Security
Deposit is that of a debtor, not a trustee; no interest shall accrue
thereon. The Security Deposit shall be the property of Landlord, but
shall be paid to Tenant when Tenant's obligations under this Lease have
been completely fulfilled. Landlord shall be released from any
obligation with respect to the Security Deposit upon transfer of this
Lease and the Premises to a person or entity assuming Landlord's
obligations under this Third Amendment.
3. This Third Amendment To Lease Agreement shall be
construed under and enforceable in accordance with the laws of the
State of Texas.
IT IS HEREBY AGREED BY THE PARTIES HERETO that with the
exception of those terms and conditions specifically modified and amended
herein, the herein referenced Lease shall remain in full force and effect in
accordance with all its terms and conditions. In the event of any conflict
between the provisions of the Lease and the provisions of this Third Amendment,
the provisions of this Third Amendment shall supersede and control.
IN WITNESS WHEREOF, the parties hereto have signed this Third Amendment
to Lease Agreement to be effective as of the 18th day of June, 2003.
TENANT: LANDLORD:
Celerity Group, Inc. ProLogis
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------- -----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President Global Facilities Title: Senior Vice President
SECOND AMENDMENT TO LEASE AGREEMENT
THE SECOND AMENDMENT TO LEASE AGREEMENT ("Second Amendment") made this
29th day of April, 2003 by and between ProLogis formerly known as ProLogis
Trust, a Maryland real estate investment trust as "Landlord" and Kinetics Fluid
Systems, a California corporation hereinafter referred to as "Tenant", in
Premises known as ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇, located at ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, situated in the city of Austin, State of Texas.
WITNESSETH:
WHEREAS, Landlord and Tenant entered into that certain Lease Agreement
dated July 13th, 2000 (which together with any prior amendments, modifications
and extensions thereof is hereinafter called the Lease), under the terms of
which Landlord leased approximately 72,000 square feet in Corridor Park
Corporate Center, Building 11, (hereinafter referred to as the Premises"); and
WHEREAS, the parties hereto now desire to amend and modify said Lease
as more fully hereinafter set forth.
AGREEMENT:
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Landlord and Tenant hereby agree that the Tenant's name shall
hereby be changed to Celerity Group, Inc., a California corporation.
2. Except as otherwise specifically modified herein, all defined
terms used in this Second Amendment shall have the same respective meanings as
provided for such defined terms in the Lease.
3. Except as herein amended, the terms and conditions of the
Lease and any amendments thereto, shall continue in full force and effect and
the Lease (and any amendments thereto) as amended herein is hereby ratified and
affirmed by Landlord and Tenant.
4. This Second Amendment To Lease Agreement shall be construed
under and enforceable in accordance with the laws of the State of Texas.
IN WITNESS WHEREOF, the parties hereto have signed this Second
Amendment to Lease Agreement to be effective as of the 29th day of April, 2003.
TENANT: LANDLORD:
Celerity Group, Inc., a California ProLogis formerly known as ProLogis Trust,
Corporation formerly known as Kinetics Fluid a Maryland real estate investment trust
Systems, a California corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------- --------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President Global Facilities Title: Senior Vice President
FIRST AMENDMENT TO LEASE AGREEMENT
BY AND BETWEEN
PROLOGIS INDUSTRIAL PROPERTIES INCORPORATED
(successor in interest to ProLogis Trust)
and
KINETICS FLUID SYSTEMS
This First Amendment To Lease Agreement is made and effective this 16 of May,
2001, by and between ProLogis Industrial Properties Incorporated, successor in
interests to ProLogis Trust, (hereinafter, "Landlord") and Kinetics Fluid
Systems (hereinafter, "Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant previously entered into that certain Lease
Agreement dated the 13th of July, 2000, (the "Lease"), providing for the leasing
by Landlord to Tenant of that certain office/warehouse space containing 72,000
square feet known as ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (the "Premises"); and
WHEREAS, Landlord and Tenant desire to modify certain terms and conditions set
out in the Lease;
NOW, THEREFORE, pursuant to the foregoing, and in consideration of mutual
covenants and agreements contained herein, the Lease is modified and amended as
set out below:
1. The Lease Term shall commence on May 15, 2001 ("Commencement
Date") and end on May 31, 2008.
2. With respect to "Initial Monthly Base Rent" the Lease shall be
amended to reflect the following: Pursuant to Addendum Two,
"Construction (Allowance Amortized)" of the Lease, the
amortization of the Tenant Construction Overages
($144,000.00), Tenants Monthly Base Rent shall be amended as
follows:
May 15, 2001 to May 31, 2001 $15,793.55
June 1, 2001 to May 31, 2004 $31,419.64
June 1, 2004 to May 31, 2006 $34,299.64
June 1, 2006 to May 31, 2008 $37,179.64
IT IS HEREBY AGREED BY THE PARTIES HERETO, that with the exception of those
terms and conditions specifically modified and amended herein, the herein
referenced Lease shall remain in full force and effect in accordance with all
its terms and conditions.
In witness whereof, the parties hereto have executed this First Amendment To
Lease Agreement as of the day and year as first above written.
LANDLORD: TENANT:
ProLogis Industrial Properties Incorporated Kinetics Fluid Systems
By: ProLogis Management Incorporated, as Agent
By: ________________________________ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director Title: Corporate Director
Facilities