Exhibit 10.24
[California Net Lease]
LEASE AGREEMENT
THIS LEASE AGREEMENT is made this 3rd day of August , 2000, between
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ProLogis Limited Partnership-I, a Delaware Limited Partnership, ("Landlord"),
and the Tenant named below.
Tenant: @Road, Inc., a California Corporation
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Tenant's representative, ▇▇▇▇ ▇▇▇▇▇
address, and phone no.: -------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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(▇▇▇)▇▇▇-▇▇▇▇
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Premises: That portion of the Building,
containing approximately 24,000
rentable square feet, as determined
by Landlord and commonly known as
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ as shown on
Exhibit A.
Project: Spinnaker One
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Building: #2
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Tenant's Proportionate Share
of Project: 25%
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Tenant's Proportionate Share
of Building: 80%
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Lease Term: Beginning on the Commencement Date
and ending on the last day of the
60th full calendar month therafter.
Commencement Date: January 1, 2001
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Initial Monthly Base Rent: Thirty Seven Thousand
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Two Hundred $37,200
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Initial Estimated Monthly Operating 1. Common Area Charges: $1,248
Expense Payments: ------
(estimates only and subject to 2. Taxes: $3,096
adjustment to actual costs and expenses ------
according to the provisions of this Lease) 3. Insurance: $72
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4. Management Fee: $264
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Initial Estimated Monthly Operating
Expense Payments: $4,680
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Initial Monthly Base Rent and Operating
Expense Payments: $41,880
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Security Deposit: $45,000
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Broker: ▇▇▇▇ ▇▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇ - CB
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▇▇▇▇▇▇▇ ▇▇▇▇▇
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Addenda: Addendum I, I & III Exhibit(s)
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A, B, & C
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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 Paragraphs 10
and 11, 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 Paragraphs 10 and 11.
3. Use. The Premises shall be used only for the purpose of general office
functions, sales, hardware and software development, and research and
development and 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 the 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 or occupation 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, but in no event shall
Tenant separately reimburse Landlord for the increased insurance premiums if
such expenses (including increased premiums) are already being billed to Tenant
as Operating Expenses pursuant to Section 6. Any occupation of the Premises by
Tenant prior to the Commencement Date shall be subject to all obligations of
Tenant under this Lease.
4. Base Rent. Tenant shall pay Base Rent in the amount set forth above. The
first month's Base Rent, the Security Deposit, 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. Tenant
waives and releases all statutory liens and offset rights as to rent. 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. Tenant shall not be obligated
to pay the late charge until Landlord has given Tenant 5 days written notice of
the delinquent payment (which may be given at any time during the delinquency);
provided, however, that such notice shall not be required more than once in any
12-month period or at 3 times over the term of the Lease. 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. 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 Paragraph 5.
6. Operating Expense Payments. During 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 each year,
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 10 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, for the uses permitted in this Lease; provided that the cost of
additions or alterations that are required to be capitalized for federal income
tax purposes and in any event, any specific Operating Expense, the cost of which
exceeds $15,000 with respect to Tenant's Proportionate Share of such Operating
Expense and are typically capitalized for federal income tax purposes (an
"Amortized Expense"), 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, or 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, or the costs of renovating space for tenants.
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Notwithstanding the foregoing, Operating Expenses do not include the
following: costs, or expenses, depreciation or amortization for capital repairs
and capital replacements required to be made by Landlord under Paragraphs 10 and
11 of this Lease; debt service under mortgages; ground rent under ground leases;
repairs and restoration paid for by the proceeds of any insurance policies or
amounts otherwise reimbursed to Landlord or paid by any other source (other than
by tenants paying their share of Operating Expenses); advertising and leasing
commissions; the costs of renovating space for tenants; principal interest, and
other costs directly related to financing the Premise or Project; the cost of
special services to tenants (including Tenant) for which a special charge is
made; the costs of repair of casualty damage or for the restoration following
condemnation to the extent covered by insurance proceeds or condemnation awards;
the legal fees and related expenses and legal costs incurred by Landlord
(together with any damages awarded against Landlord) due to the bad faith
violation by Landlord, or by any violation by any tenant, of the terms and
conditions of any lease of space in the Project; the costs arising from the
presence of any Hazardous Materials (as hereinafter defined) in, under or about
the Premises or Project, unless such Hazardous Materials were used, stored or
discharged by Tenant or its employees, contractors and other agents; the
overhead and profit paid to Landlord or to subsidiaries or affiliates of
Landlord for goods and/or services in the Project to the extent the same exceeds
the costs of such goods and/or services rendered by qualified, unaffiliated
third parties on a competitive basis; Landlord's charitable or political
contributions the costs (other than ordinary maintenance and insurance) for
sculpture, paintings and other objects of art; the interest and penalties
resulting from Landlord's failure to pay any items of Operating Expense when
due; the management office rental to the extent such rental exceeds the fair
market rental for such space or the extent the space utilized therefor exceeds
the space utilized for management offices in comparably sized buildings; the
costs of Landlord's memberships in professional organizations (such as, by way
of example and without limitation, BOMA) in excess of $2,500.00 per year; costs
incurred in connection with upgrading the Premises to comply with the current
interpretation of disability, life, fire and safety codes, ordinances, statutes,
or other laws in effect prior to the Commencement Date, including without
limitation, the ADA, including penalties or damages incurred due to such non-
compliance; any expenses incurred by Landlord for use of any portions of the
Building complex to accommodate events including, but not limited to shows,
promotions, kiosks, displays, filming, photography, private events or parties,
ceremonies, and advertising beyond the normal expenses otherwise attributable to
providing services to the Premises of Project and the cost of any "tenant
relations" parties, events or promotion not consented to by an authorized
representative of Tenant in writing.
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.
Notwithstanding anything to the contrary contained in Paragraph 7 of
this Lease, if an interruption or cessation of utilities results from a cause
within the Landlord's reasonable control and the Premises are not usable by
Tenant for the conduct of Tenant's business as a result thereof, Base Rent and
applicable Operating Expenses not actually incurred by Tenant shall be abated
for the period which commences five (5) business days after the date Tenant
gives to Landlord notice of such interruption until such utilities are restored.
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,
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or the 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, transfer, inheritance or
capital stock 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; provided that Tenant shall have the right to reasonably contest
by appropriate legal proceedings the amount, validity, or application of any
such tax or excise. 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; provided that for all such taxes levied
or assessed against Tenant shall have the right to reasonably contest by
appropriate legal proceedings the amount, validity, or application of any such
taxes.
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, but in no event shall Tenant separately reimburse
Landlord for the increased insurance premiums if such expenses are already being
billed to Tenant as Operating Expenses pursuant to Section 6.
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 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
obligations set forth in Paragraph 10 and in this Paragraph 11, 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
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exclusively serving the Premises including, without limitation, dock and loading
areas, truck doors, plumbing, water, and sewer lines up to points or 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 benefits
may extend beyond the Term provided that cost for replacement of the roof or
roof membrane and heating, ventilation and air conditioning units, which exceed
$15,000 per occurrence and are typically capitalized for Federal Income Tax
purposes, shall be paid by Landlord and billed to Tenant as an amortized expense
pursuant to Paragraph 6. 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. 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
consent shall not be unreasonably withheld. 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. 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 may monitor
construction of the Tenant-Made Alterations. Tenant shall reimburse Landlord for
its reasonable 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 reasonably
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
reasonably 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
(including initial improvements) and any leasehold improvements constructed by
Landlord or Tenant shall remain on the Premises as Landlord's property, except
to the extent Landlord requires in writing, at the time Landlord approves the
Tenant Made Alterations, removal at Tenant's expense of any such items. 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 which shall not be unreasonably withheld, conditioned or delayed and
conform in all respects to Landlord's requirements (as set forth in Exhibit C
attached hereto).
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 time during the Lease Term the Premises are
damaged by a fire or other casualty, Landlord shall notify Tenant within 30 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 written
notice to the other party given no later than 15 days after Landlord's notice
(with the actual termination to be effected no earlier than 30 days after such
notice has been
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received by the other party). 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 (which shall be proportionally allocated among
all tenants whose premises also suffered damage or destruction, based on the
relationship between the cost of the restoration each premises and the total
cost of restoration, as determined by Landlord) within 10 days after presentment
of Landlord's invoice. 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 either party to the other this Lease shall terminate
and Base Rent and Tenant's Proportionate Share of Operating Expenses 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 and
Tenant's Proportionate Share of the Project 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 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.
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) (This clause only applies to assignment) the
assignee does not have a net worth calculated according to generally accepted
accounting principles at least equal to the greater of the net worth of Tenant
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 not reasonably satisfactory to Landlord; (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 and
is at rates which are below those charged by Landlord for comparable space in
the Project, and such comparable space is then presently or within 6 months time
available 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; (ix) the proposed assignee or sublessee is a governmental agency; or
(x) there is vacant space in the Property suitable for lease to the proposed
sublessee or assignee and the proposed sublessee or assignee is currently
negotiating with the Landlord for such vacant space. 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
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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 that 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 50 percent of 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 willful misconduct or negligence of
Landlord, its agents, employees or contractors, and to the extent permitted by
law, Tenant agrees to indemnify, defend and hold harmless Landlord, and
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 the use and 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 upon providing
reasonable prior notice (except in an emergency) 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
during the last 6 months of the Lease Term. 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 double 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.
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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 from the date such payment was due.
(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 on Event
of Default if, 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 not subject
to vandalism, and (c) insure that the Premises will be properly maintained after
such vacation. Tenant shall inspect the Premises at lease once each month and
report monthly in writing to Landlord on 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;
provided that if the cure of any such failure is not reasonably susceptible of
performance within such 30 day period, then an Event of Default shall not be
deemed to have occurred so long as Tenant has timely commenced the cure within
the 30 day period and thereafter diligently prosecutes such cure to completion.
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, as provided in
Section 1951.2 of the Civil Code of California: (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 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 the 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
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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 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,
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. This remedy is intended to be the remedy described in California Civil Code
Section 1951.4, and the following provision from such Civil Code Section is
hereby repeated: "The Lessor has the remedy described in California Civil Code
Section 1951.4 (lessor may continue lease in effect after lessee's breach and
abandonment and recover rent as it becomes due, if lessee has right to sublet or
assign, subject only to reasonable limitations)." 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.
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 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 provide
its best efforts to mitigate damages, but 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, as long as Landlord has promptly commenced the cure of
the default within the 30 day period and thereafter diligently proceeds to
complete the cure. 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 right 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; provided that
as a condition precedent to any such subordination Landlord shall provide a non-
disturbance agreement from the holder of any such mortgage in a form reasonably
acceptable to Tenant. It shall be condition precedent to the effectiveness of
this Lease that Tenant obtain a reasonably acceptable non-disturbance agreement
from any
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mortgage or ground lessor existing as of the date of this Lease no later than
the date on which this Lease is fully executed. Tenant agrees, at the election
of the holder of any such mortgage, to attorn to any such holder and 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; Provided that Tenant shall not be obligated to execute and deliver
such instruments unless it also receives a non-disturbance agreement reasonably
satisfactory to Tenant. 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.
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 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 reasonably satisfactory to
Landlord within such 30 day period.
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. Tenant hereby irrevocably appoints Landlord as
its attorney in fact to execute on its behalf and in its name any such estoppel
certificate if Tenant fails to execute and deliver the estoppel certificate
within 10 days after Landlord's written request thereof.
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 manner reasonably
satisfactory to Landlord (but in no event to a level greater than that required
under Environmental Requirements) 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 Landlord 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 Premises or disturbed 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 for which Tenant is obligated to
remediate as provided above or any other breach of the requirements under this
Paragraph 30
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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
existing on the Premises prior to Tenant's occupancy of the Premises and
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 time 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.
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 payments neither Landlord nor
Tenant shall not be held responsible for delays in the performance of its
respective obligations hereunder when caused by strikes, lockouts, labor
disputes, 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 such party ("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. Landlord and Tenant mutually represent and warrant that each
party 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 each party agrees to indemnify and hold the other party 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 such
party 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 be notice given aforesaid change its address for
-11-
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 retains the absolute right to withhold any consent or
approval.
(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 recorded by or
on behalf of Tenant in any public record, except that the foregoing shall not
prevent Tenant from disclosing the existence or any of the contents of this
Lease in any documents submitted by Tenant to the Securities and Exchange
Commission or other parties in conjunction with an initial public offering.
Landlord may prepare and record, 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.
(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.
(l) Time is of the essence as to the performance of Tenant'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.
38 Landlord's Lien/Security Interest.
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.
-12-
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the
day and year first above written.
TENANT: LANDLORD:
@Road, Inc., a California Corporation ProLogis Limited Partnership-I, a
------------------------------------- Delaware limited partnership
By: ProLogis Trust, a Maryland real
By: /s/ ▇▇▇▇▇ ▇▇▇▇ estate investment trust, General
---------------------------------- Partner
Name: ▇▇▇▇▇ ▇▇▇▇
-------------------------------- By: /s/ Net ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Title: President/CEO
------------------------------- Title: Managing Director
Address: Address::
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-13-
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 Tenants 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.
-14-
HVAC Maintenance/Service Contract Requirements
----------------------------------------------
A service contract with a Landlord approved HVAC contractor must become
effective within thirty (30) days of occupancy and service visits should be
performed on a quarterly basis. The following are the approved HVAC contractors:
Thermoscape 510/445-0700
Phoenix Heating and Air Conditioning 408/487-0390
Cal-Air Conditioning 408/947-0155
We suggest that you send the following list to one of the above HVAC contractors
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.
Note: A certificate must be provided for our files not later than thirty (30)
days after mutual execution hereof. Failure to provide such certificate
or perform said services, when required, shall constitute material
default of this lease.
-15-
ADDENDUM I
BASE RENT ADJUSTMENTS
---------------------
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED AUGUST 3, 2000, BETWEEN
ProLogis Limited Partnership-I
and
@Road Inc.
Base Rent shall equal the following amounts for the respective periods set forth
below:
Period Monthly Base Rent
------ -----------------
01/01/01 to 8/31/02 $37,200
09/01/02 to 04/30/04 $38,400
05/01/04 to 12/31/05 $39,600
-16-
ADDENDUM II
ONE RENEWAL OPTION AT MARKET
----------------------------
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED AUGUST 3, 2000, BETWEEN
ProLogis Limited Partnership-I
and
@Road, Inc.
(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 three (3) 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 six months, but not more than nine 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 five 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, the 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 initial
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.
-17-
ADDENDUM III
LETTER OF CREDIT
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED AUGUST 3, 2000, BETWEEN
ProLogis Limited Partnership-I
and
@Road Inc.
The Letter of Credit in the amount of $100,000 may be in the form of an
unconditional, irrevocable letter of credit from a bank reasonably acceptable to
Landlord. The primary purpose of the Letter of Credit is to reimburse Landlord
for Leasing costs, and additional security in the event of default. The letter
of credit shall either provide that it does not expire until 60 days after the
end of the Lease term or, if it is for less than the full term of the Lease,
shall be renewed by Tenant at least 30 days prior to its expiration during the
term of the Lease. The letter of credit shall provide that it may be drawn down
upon by Landlord at any time Landlord delivers its site draft to the bank. If
Landlord sells or conveys the Premises, Tenant shall, at Landlord's request,
cooperate in having the letter of credit transferred to the purchaser. If the
letter of credit is ever drawn upon by Landlord pursuant to the terms of the
Lease and this Addendum, tenant shall within ten (10) days thereafter cause the
letter of credit to be restored to its original amount.
-18-
ADDENDUM III
FORM OF LETTER OF CREDIT
------------------------
[LETTERHEAD OF LETTER OF CREDIT BANK]
[DATE]
ProLogis Limited Partnership-I
------------------------------
------------------------------
Attention:
--------------------
Re: Irrevocable Transferrable Letter of Credit
No.
----------------
Beneficiary:
By order of our client, ___________________ (the "Applicant"), we hereby
---------
establish this Irrevocable Transferrable Letter of Credit No. ________ in your
favor for an amount up to but not exceeding the aggregate sum of
__________________ and No/100 Dollars ($_________) (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 data 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.
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 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 transferrable by you and your successors and
assigns any number of times in its entirety 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:
-19-
ANNEX 1
SIGHT DRAFT
_______________________, 2000
For value received, at sight pay to the order of PROLOGIS LIMITED
PARTNERSHIP-I, the sum of [Amount in words] [Amount in Figures] United States
Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable
Letter of Credit No. ________ dated _________________________, 2000.
PROLOGIS LIMITED PARTNERSHIP-I
By:
-------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
-20-
ANNEX 2
DRAWING REQUEST
_________, 2000
[NAME AND ADDRESS OF LETTER
OF CREDIT BANK]
Re: Irrevocable Transferrable 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 Transferrable 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 _____________, 2000.
PROLOGIS LIMITED PARTNERSHIP-I
By:____________________________
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
ANNEX 3
NOTICE OF ASSIGNMENT
__________, 2000
[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 of 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 _____, 2000.
PROLOGIS LIMITED PARTNERSHIP-I
By:_______________________________
▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
Agreed:
[Assignee]
___________________
EXHIBIT A
Site Plan
SPINNAKER ONE
[ ] SPINNAKER ONE-A FOUR-BUILDING 96,000 SQUARE FOOT COMPLEX DESIGNED FOR
OFFICE, RESEARCH AND DEVELOPMENT, AND LIGHT INDUSTRIAL USES.
[FLOOR PLAN APPEARS HERE]
FREMONT BOULEVARD
[ ] Spinnaker One's beautiful architectural treatments are displayed in Bayside
Business Park's campus-like setting. Extensive walkways leading to
individual tenant entries are enhanced by mature trees, sloping bermed
landscape and lush greenery.
[ ] The prestigious Bayside Business Park development maintains strict CC&R's to
ensure a high quality master-planned business environment.
[ ] Spinnaker One buildings can accommodate tenant requirements from 5,000 to
30,000 square feet.
[ ] Professional architectural space planning and improvements to suit are
services provided to tenants.
[ ] Spinnaker One Buildings also feature dock high and drive-in loading
facilities, 16 to 18 foot clear heights, parking for 4 cars per 1000 square
feet of building, and hydraulically calculated sprinkler systems.
BUILDING A BUILDING B BUILDING C BUILDING D
-------------------------------------------------------------------------------------------------------------------------
AREA 26,000 SF 30,000 SF 20,000 SF 20,000 SF
-------------------------------------------------------------------------------------------------------------------------
ELECTRICAL SERVICE 1,600 amps/480 volt 1,600 amps/480 volt 1,000 amps/480 volt 1,000 amps/480 volt
-------------------------------------------------------------------------------------------------------------------------
EXHIBIT B
[Floor Plan]
[FLOOR PLAN APPEARS HERE]
Exhibit C
Sign Criteria
SPINNAKER
---------
WINDOW SIGNS IDENTIFICATION:
---------------------------
Each Tenant will be allowed one window sign placed either to the left or to the
right of the entrance door, whichever provides the best visibility.
Company names, logos or symbols will be allowed in this area - color and size to
be determined by the Tenants. All other copy in this area except for logos or
------
symbols will be matte white pressure sensitive letters.
Copy should start at 5' from grade working down to no more than 3 1/2' from
grade. Sign layout including copy, sizes and color must be approved by the
building management.
One security decal only may be applied to the front door glass in the lower
corner if the Tenant so desires. All exterior alarm bells are to be mounted to
the rear of the building only.
DIRECTORY SIGN IDENTIFICATION:
-----------------------------
A monument directory sign has been provided for each building. If only one
---
tenant occupies an entire building, that Tenant shall be allowed to utilize
------
the entire directory sign area for its sensitive vinyl letters in the Handel
Gothic style in ink blue with a letter height suitable for the area allowed, and
a logo may be used.
If two or more Tenants occupy a building, signs shall consist of 4" Handel
----------------------
Gothic dark blue pressure sensitive vinyl letters condensed to 60.4%. Directory
signs shall list the street number and the company names only, no slogans or
symbols allowed.
REAL LOADING SIGNS:
-------------------
Each Tenant will be allowed to identify its rear door for shipping and receiving
purposes. The company name shall be placed on a 36" x 24" aluminum panel
adjacent to the rear doors.
Copy shall consist of vinyl letters only in the dark blue Handel Gothic style.
Company names and logos only are allowed. Address numbers and door designation
sign re: Shipping/Receiving, will call...will be installed centered above the
main door. Address is always on rear loading sign.
Management reserves the right to deny any copy it considers unsuitable,and must
approve all copy prior to installation. The cost of all lettering and logos is
the responsibility of the Tenant. No other signs are allowed in the windows or
doors.