California-Los Angeles-21415 Plummer Street Lease - Greenville Dallas Delaware Inc., ADC Telecommunications Inc. and Fibermux Corp.
LEASE
THIS LEASE, dated as of December 18, 1992, is made by and between
GREENVILLE DALLAS DELAWARE, INC., a Delaware corporation ("Landlord"), and ADC
TELECOMMUNICATIONS, INC.,a Minnesota corporation, and FIBERMUX CORPORATION, a
California corporation (collectively, "Tenant"), upon the following terms and
conditions.
1. LEASE OF PREMISES AND DEFINITIONS.
(a) Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, on an as-is basis except as herein otherwise specifically provided,
that certain building commonly known as 21415 Plummer Street, Los Angeles,
California depicted on the attached EXHIBIT A (hereinafter referred to as the
"Premises" and sometimes as the "Building"), subject, however, to, and together
with, the easements, restrictions and other matters of record and access which
is disclosed by inspection.
(b) The term "Property" shall mean that certain real property, of
which the Premises is a part, legally described on the attached Exhibit B, on
which Property are located the Building and the building commonly known as 21605
Plummer Street ("Rockwell Building").
(c) The term "Tenant's Proportionate Share" shall mean the percentage
from time to time obtained by dividing the rentable area of the Premises
(including any space added to the Premises as provided in this Lease) by the sum
of the rentable area of the Building and the rentable area of the Rockwell
Building. Such rentable areas shall be initially measured, not later than the
Commencement Date, by Tenant's space planner, at Tenant's expense, in accordance
with the National Standard Method for Measuring Floor Area in Office Buildings,
ANSI Z65.1-1980 ("BOMA Standard"), which space planner shall submit such
measurements to Landlord for Landlord's approval (which approval shall be given
or withheld in writing, shall not be unreasonably withheld and shall be deemed
to be not given if not given or withheld in writing within 10 days after a
written request for such approval has been received by Landlord from Tenant).
If the rentable area of the Building, as so measured and approved, is within 1%
of 97,104 square feet, then the rentable area of the Building shall, for
purposes of this Lease, be deemed to be 97,104 square feet. If the rentable
area of the Rockwell Building, as so measured and approved, is within 1% of
130,572 square feet, then the rentable area of the Rockwell Building shall, for
purposes of this Lease, be deemed to be 130,572 square feet. If the Building
and/or the Rockwell Building is/are subsequently altered so as to affect
its/their rentable area(s), Landlord shall, at Landlord's expense, cause the
altered building(s) to be remeasured by a qualified party in accordance with
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the BOMA Standard, which remeasurements shall be submitted top Tenant for
Tenant's approval (which approval shall be given or withheld in writing, shall
not be unreasonably withheld and shall be deemed to be not given if not given or
withheld in writing within 10 days after a written request for such approval has
been received by Tenant from Landlord). If the rentable area of the Building or
of the Rockwell Building, as so remeasured and approved, is within 1% of the
actual or deemed rentable area of the Building or Rockwell Building applicable
under this Lease immediately prior to the alteration(s), then the rentable area
of the Building or of the Rockwell Building shall, for the purposes of this
Lease, be deemed to be the actual or deemed rentable area of the Building or of
the Rockwell Building applicable under this Lease immediately prior to the
alteration(s). If less than all of the Rockwell Building is added to the
Premises pursuant to this Lease, Landlord shall, at Landlord's expense, cause
the added space to be measured by a qualified party in accordance with the BOMA
Standard, which measurement shall be submitted to Tenant for Tenant's approval
(which approval shall be given or withheld in writing, shall not be unreasonably
withheld and shall be deemed to be not given if not given or withheld in writing
within 10 days after a written request for such approval has been received by
Tenant from Landlord). The parties to this Lease shall execute an amendment to
this Lease establishing Tenant's Proportionate Share and the rentable areas of
the Premises, the Building and/or the Rockwell Building, if necessary, at the
time of the initial measurement and each subsequent measurement.
(d) "Appraisal" shall mean an appraisal of Market Rent (as defined in
this Lease below) conducted in accordance with the procedures set forth in
attached Exhibit D.
(e) "Market Rent" shall mean the annual Base Rent (expressed as an
amount per square foot of rentable area) that the Landlord would receive as of
the commencement date of the term in question if it were to lease the space in
question pursuant to the terms of this Lease (except to the extent that this
Lease is inconsistent with the assumptions and requirements set forth below) to
a tenant with a credit standing comparable to that of Tenant; with parking
rights as provided in this Lease; for a term equal to the period in question;
with a commencement date of the date in question; and in an "as is" condition,
except to the extent that Landlord is required under this Lease to make
improvements. In determining the "Market Rent", current conditions in the
marketplace for comparable transactions shall be considered, including without
limitation, tenant inducements, if and to the extent then a part of market
conditions, such as, but not limited to, buildout allowances or work, free rent,
financial inducements and credits for moving expenses. For purposes of
determining Market Rent it shall be assumed that Landlord and Tenant are each
ready, willing and able to enter into such a lease but are under no compulsion
to do so.
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(f) The term "Consumer Price Index" shall mean the Consumer Price
Index issued by the U.S. Department of Labor, Bureau of Labor
Statistics for Urban Wage Earners and Clerical Workers, U.S. City Average
(1982-1984=100), or its successor index
2. TERM. The initial term of this Lease shall commence on the
Commencement Date (defined below) and shall end on the last day of the 72nd
month thereafter.
Landlord agrees to use its best efforts (including appropriate legal
proceedings, if reasonably required) to enforce that certain Agreement dated
December 1, 1992, between Landlord and Symbolics, Inc. and that certain letter
agreement dated November 6, 1992, among Landlord, Rockwell International
Corporation ("Rockwell") and Symbolics, Inc., copies of which have been provided
to Tenant. The Commencement Date shall be the earlier of the date that Tenant
commences business operations in the Premises or the date 180 days following the
date of this Lease, unless Rockwell's vacation of the Premises is delayed beyond
February 28, 1993, in which case the Commencement Date shall be extended by the
number of days (not to exceed 30 days) of such delay. If such delay exceeds 30
days, Tenant shall have the option to (a) terminate this Lease or (b) continue
with the extension of the Commencement Date for such period (not to exceed 30
days) as Tenant shall determine, such option to be exercised by Tenant by
written notice given to Landlord within 10 days after the expiration of the
initial 30-day period of delay referred to above. Tenant shall have full
occupancy of the Premises immediately following Rockwell's vacation of the
Premises until the Commencement Date in order to construct the Tenant
Improvements and move into the Building. Such occupancy shall be subject to each
and every provision of this Lease except that Tenant shall not be obligated to
pay any Base Rent or Impositions applicable to the period prior to the
Commencement Date. Upon determination of the Commencement Date, Landlord and
Tenant will execute an agreement confirming the Commencement Date.
3. RENT. Tenant shall pay to Landlord, in advance, on the
Commencement Date and on the 1st day of each calendar month thereafter during
the initial term of this Lease, the following net monthly rental ("Base Rent"),
over and above the other and additional payments to be made by Tenant as
hereinafter provided, as follows:
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Base Rent to
Months be paid per month
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1st month $77,000.00
2nd through 5th month $ 0
6th through 9th month $38,500.00
10th through 36th month $77,000.00
37th through 72nd month $77,000.00, subject to the following
increase.
; provided, however, that the Base Rent payable for the first month shall be
reduced by $2,531.50 for each day that Tenant's commencement of business
operations in the Premises is later than the date 150 days after the date of
this Lease (but such reduction shall in no event exceed $77,000). Commencing
with the first day of the 37th month of the initial term hereof, the Base Rent
shall be increased based upon the percentage increase in the Consumer Price
Index, as such Index for the 36th month of the initial term hereof bears to such
Index for the month preceding the first full month of the initial term;
provided, however, that in no event shall the monthly Base Rent commencing on
the 37th month of the initial term be more than $88,550.00 or less than
$83,930.00.
Notwithstanding the foregoing, if the rentable area of the Premises is
deemed, pursuant to paragraph 1(c) of this Lease, to be an amount other than
97,104 square feet, then Tenant shall pay to Landlord, in advance, on the
Commencement Date and on the 1st day of each month thereafter during the initial
term of this Lease, the following Base Rental, rather than the Base Rental set
forth in the immediately preceding grammatical paragraph:
Base Rent to
Months be paid per month
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1st month $.793 per rentable square foot
2nd through 5th month $ 0
6th through 9th month $.3965 per rentable square foot
10th through 36th month $.793 per rentable square foot
37th through 72nd month $.793 per rentable square foot, subject
to the following increase.
; provided, however, that the Base Rent payable for the first month shall be
reduced by $.02607 per rentable square foot for each day that Tenant's
commencement of business operations in the Premises is later than the date 150
days after the date of this Lease (but such reduction shall in no event exceed
$.793 per rentable square foot for one month). In such case, commencing with the
first day of the 37th month of
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the initial term hereof, the Base Rent shall be increased based upon the
percentage increase in the Consumer Price Index, as such Index for the 36th
month of the initial term hereof bears to such Index for the month preceding the
first full month of the initial term; provided, however, that in no event shall
the monthly Base Rent commencing on the 37th month of the initial term be more
than $.9120 per rentable square foot or less than $.8644 per rentable square
foot.
The foregoing Base Rent schedules refer to calendar months beginning
with the first full calendar month of the initial term of this Lease.
Accordingly, if the Commencement Date is other than the first day of a calendar
month, the Base Rent for the partial month preceding the first full calendar
month of the initial term of this Lease, which is payable on the Commencement
Date, shall be determinated on a prorated basis, using for such determination
the monthly Base Rent stated above with respect to the 10th calendar month.
The term "rent" as used in this Lease shall refer collectively to the
Base Rent and to all additional rent, charges and other sums payable hereunder.
Tenant hereby acknowledges that late payment by Tenant to Landlord of rent and
other sums due hereunder after the expiration of any applicable grace period
will cause Landlord to incur costs not contemplated by this Lease, the exact
amount of which will be difficult to ascertain. Such costs include, but are not
limited to, processing and accounting charges, and late charges which may be
imposed on Landlord by the terms of any trust deed covering the Premises.
ACCORDINGLY, IF ANY INSTALLMENT OF RENT OR ANY OTHER SUMS DUE FROM TENANT SHALL
NOT BE RECEIVED BY LANDLORD WHEN DUE OR IF A GRACE PERIOD IS APPLICABLE, PRIOR
TO THE EXPIRATION OF THE GRACE PERIOD, TENANT SHALL PAY TO LANDLORD A LATE
CHARGE EQUAL TO 5% OF SUCH OVERDUE AMOUNT. THE PARTIES HEREBY AGREE THAT SUCH
LATE CHARGE REPRESENTS A FAIR AND REASONABLE ESTIMATE OF THE COSTS LANDLORD WILL
INCUR BY REASON OF LATE PAYMENT BY TENANT BASED UPON THE CIRCUMSTANCES EXISTING
AS OF THE DATE OF THIS LEASE. [INITIALS OF THE PARTIES AS TO THE TWO SENTENCES
SHOWN IN BOLD: _______________________]
4. PARKING. Tenant shall have the right to use 215 parking spaces
on the Property in the Fibermux Area shown on the attached EXHIBIT A ("Fibermux
Area"). Landlord, using reasonable efforts, shall also attempt to obtain
parking for an additional 173 vehicles (the "Additional Parking Spaces"). Any
Additional Parking Spaces not provided within the Fibermux Area shall be
provided first (a) in the Rockwell Area shown on the attached EXHIBIT A
("Rockwell Area"), and (b) then at 21540 Plummer Street (across the street from
the Premises). All Additional Parking Spaces to be provided by Landlord shall
meet applicable governmental requirements and shall be approximately the same
size as the existing spaces in the Fibermux and Rockwell Areas shown on the
attached EXHIBIT A. All parking spaces to be provided by Landlord in the
Fibermux Area and the other areas shall be identified and controlled in a manner
reasonably acceptable to Landlord and Tenant. Such parking spaces shall also be
non-tandem and shall be on the basis of the
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existing stall striping; provided, however, that Tenant may, in its sole
discretion, elect to permit Landlord to provide some or all of the Additional
Parking Spaces on a tandem basis; and provided further, however, that Tenant may
restripe the delivery area of the Premises and/or the parking spaces on any
parking area provided by Landlord for Tenant's use, at Tenant's sole expense,
and in such event the number of additional parking spaces yielded by such areas
after such restriping by Tenant shall be deemed to be "Additional Parking
Spaces" for purposes of this Lease.
For each month after the Commencement Date and continuing through the
initial term of this Lease, so long as 173 Additional Parking Spaces are not so
provided, Landlord shall pay to Tenant on the first day of each such month a sum
equal to $45.00 times the number of such Additional Parking Spaces not so
provided for that month; provided, however, that for the first seven months
following the Commencement Date, the sum due from Landlord for each such
Additional Parking Space not provided shall only be $22.50; and provided
further, however, that, if Tenant adds Additional Parking Spaces as a result of
its restriping of the Fibermux Area as provided above, Landlord shall have no
obligation to make such payments with respect to such added spaces from and
after the date that they are added to the Fibermux Area. Tenant shall deduct
such amounts due for each month of the initial Lease term from the monthly
rental payment for such month; provided, however, that, as to the 1st through
5th full calendar months following the Commencement Date, the sums due from
Landlord shall be deducted by Tenant from the payment of Base Rent due for the
6th full calendar month following the Commencement Date (and, if necessary, the
Base Rent payments due in subsequent months) under this Lease.
From and after the date Tenant has more than 215 parking spaces on the
Property (except to the extent that such excess parking spaces are leased to
Tenant as a result of Tenant's exercise of the Expansion Option), such payments
of $45.00 per month or $22.50 per month, as the case may be, shall cease with
respect to each such space in excess of 215 spaces. For each Additional Parking
Space provided by Landlord in the locations described in subparagraphs (a) and
(b) above after the date of this Lease, the amount otherwise payable by Landlord
hereunder shall be reduced by $30.00 per month for each such Additional Parking
Space so provided.
Tenant may enter into a lease or leases for parking at other than the
sites described in subparagraphs (a) and (b) above for: those Additional Parking
Spaces which Landlord does not commit by a written notice delivered to Tenant by
February 1, 1993 to provide to Tenant as of the Commencement Date; or any
Additional Parking Spaces that are provided by Landlord at any time during the
initial term of this Lease and are thereafter, during such initial term,
terminated by any landlord(s) thereof. Landlord shall provide at least 75 days'
prior written notice to Tenant if Landlord will be providing Additional Parking
Spaces after the
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Commencement Date. Landlord shall provide at least 75 days' prior written
notice to Tenant if Landlord will cease to provide any Additional Parking
Spaces, in which case Tenant shall be entitled to enter into parking leases to
replace such Additional Parking, as provided above. Notwithstanding the
foregoing, notices from Landlord to Tenant of either the provision or cessation
of Additional Parking Spaces which result from the elimination of any parking
permitted by the City of Los Angeles upon its easement area shall be the 75 days
notice specified above or the number of days of notice of elimination of parking
Landlord receives from the City of Los Angeles, whichever is less. Within ten
(10) days after entering into any parking lease, Tenant shall provide a copy
thereof to Landlord. If Landlord thereafter provides to Tenant the Additional
Parking Spaces required on either of the sites described in subparagraphs (a) or
(b) above, and Tenant consequently cancels its parking lease(s), Landlord shall,
at Landlord's election made by written notice to Tenant at the time such
Additional Parking Spaces are delivered to Tenant, either reimburse Tenant for
the lease cancellation charge for each such canceled parking space or pay Tenant
$15 per month for the remainder of the initial term of this Lease for each
parking space as to which Landlord has elected not to pay the such cancellation
charge. Such reimbursement by Landlord to Tenant for lease cancellation charges
shall include Tenant's unamortized costs of improving such parking site, based
on a six-year amortization period.
Notwithstanding the foregoing provisions of this paragraph 4, if
Rockwell ceases to lease all or any portion of the Rockwell Building, then the
following shall apply:
(1) If Rockwell at any time no longer leases any space in the Rockwell
Building, then a portion of the parking spaces in the Rockwell Area will be
added, at no cost to Tenant, to the parking spaces already available to Tenant,
which portion shall be determined by adding together the parking spaces then in
the Rockwell Area and the Fibermux Area, dividing such sum by the total rentable
square footage of the Rockwell Building and of the Building, multiplying such
dividend (the "Dividend") by the rentable area of the Building and subtracting
the number of parking spaces in the Fibermux Area from the result. The
resulting figure will be rounded to the nearest whole number. If Tenant has then
exercised or subsequently exercises the Expansion Option, then another portion
of the parking spaces in the Rockwell Area will be provided to Tenant, at no
cost to Tenant, which portion shall be determined by multiplying the Dividend by
the rentable area of the Expansion Space, the resulting figure to be rounded to
the nearest whole number.
(2) If Rockwell continues to lease a part of the Rockwell Building,
then a portion of the parking spaces in the Rockwell Area will be added, at no
cost to Tenant, to the parking spaces available to Tenant in the Fibermux Area,
which portion shall be determined as follows:
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[total parking spaces in the Rockwell Area] - [(total parking
spaces in the Rockwell Area) x (rentable area of the portion of
Rockwell Building being leased by Rockwell) divided by rentable
area of Rockwell Building] - [(total parking spaces on the
Property) x (rentable area of the portion of the Rockwell
Building that is not being leased by Rockwell) divided by (total
rentable area of the Building and the Rockwell Building)],
rounded to the nearest whole number
PLUS, IF TENANT HAS THEN EXERCISED OR
SUBSEQUENTLY EXERCISES THE EXPANSION OPTION:
[total parking spaces on the Property x (rentable area of the
Expansion Space) divided by (total rentable area of the Building
and the Rockwell Building)], rounded to the nearest whole number
If Rockwell at any time no longer leases any portion of the Rockwell Building,
spaces shall be reallocated as provided in subparagraph (1) above,
notwithstanding that parking spaces may have been previously allocated pursuant
to subparagraph (2) above. The parking spaces made available to Tenant under
subparagraphs (1) and (2) above shall be as close as possible to the space
leased by Tenant and served by such parking. Such added parking spaces shall be
deemed to be Additional Parking Spaces as follows:
(A) if Tenant does not elect to lease any Expansion Space
pursuant to paragraph 55 of this Lease, then all such added
parking spaces shall be deemed to be Additional Parking Spaces; or
(B) if Tenant elects to lease any Expansion Space pursuant to
paragraph 55 of this Lease, then all such added parking spaces shall
be deemed to be Additional Parking Spaces, except for the portion of
such added parking spaces leased to Tenant with respect to the
Expansion Space as provided above.
If any of the approximately 97 parking spaces in the Rockwell Area that are
located upon an easement granted by the City of Los Angeles are eliminated
because such easement is revoked in whole or in part by the City of Los Angeles,
and if such elimination results in a reduction in the number of parking spaces
that would otherwise have been provided to Tenant as set forth above, then
Landlord shall for the remainder of the initial term of this Lease pay to
Tenant, on the first day of each month during which such parking spaces would
otherwise have been provided to Tenant as set forth above, a sum equal to $45.00
times the number of parking spaces that would otherwise have been provided to
Tenant as set forth above.
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5. FULL NET LEASE. Landlord shall receive the rent free and clear
of any and all other impositions, taxes, liens, charges, or expenses of any
nature whatsoever in connection with the ownership and operation of the
Premises, except as herein expressly provided. In addition to the rent reserved
above, Tenant shall pay to the parties respectively entitled thereto all
impositions, insurance premiums, operating charges, maintenance charges,
construction costs, and any other charges, costs, and expenses that arise or may
be contemplated under any provisions of this Lease during the term hereof. It is
the intention of the parties that this Lease shall not be terminable for any
reason by Tenant, and that Tenant shall in no event be entitled to any set-off
against, abatement of, or reduction in rent payable under this Lease, except as
herein otherwise expressly provided (including, without limitation, the
provisions of paragraph 43 of this Lease).
6. USE. The Premises shall be used and occupied only for the
businesses of testing, assembly, fabrication, warehousing and/or shipping of
electronic components, circuit boards and/or cabinets, and for sales and/or
general office uses related to such types of businesses and for other uses
incidental to the foregoing and for no other use or purpose.
7. QUIET ENJOYMENT. Provided Tenant performs its obligations
hereunder, Tenant shall lawfully and quietly occupy the Premises during the term
of this Lease without hindrance or molestation by Landlord, subject, however, to
the matters herein set forth; provided, however, that, if Tenant is dispossessed
of all or part of the Premises by any party who or which does not claim such
possession through Tenant, Tenant shall be entitled to an equitable abatement of
Base Rent, Impositions, Insurance Costs and other charges under this Lease from
the date of Tenant's dispossession until Tenant's possession is restored and, if
Tenant's possession is not restored within 60 days after Tenant was
dispossessed, Tenant may terminate this lease by written notice given to
Landlord within ten (10) days after the expiration of such 60-day period and
before Tenant's possession is restored.
8. PAYMENT OF IMPOSITIONS. Tenant covenants and agrees to pay to
Landlord Tenant's Proportionate Share (as defined in paragraph 1(c) of this
Lease) of all "Impositions" upon or with respect to the Property. As used
herein, the term "Impositions" shall include any form of real estate tax,
assessment, license fee, commercial rental tax, improvement bond or bonds, levy,
or other tax, general and special, ordinary and extraordinary, foreseen as well
as unforeseen, of any kind or nature whatsoever, imposed by any authority having
the power to tax (including any city, state, or federal government, or any
school, agricultural, sanitary, water, fire, street, drainage, or other
improvement district thereof ) against any legal or equitable interest of
Landlord in the Premises or in the Property, against Landlord's right to rent or
other income therefrom, and against Landlord's business of leasing the Premises
or the Property; provided, however, that "Impositions" shall not include
inheritance, personal or corporate income, or estate taxes. The term
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"Impositions" shall also include any tax, fee, levy, assessments, or charge: (a)
in substitution of, partially or totally, any of the above-listed Impositions,
or (b) that is imposed by reason of this transaction, any modifications or
changes hereto, or any transfers hereof. Except as otherwise provided in this
Lease, all such payments shall be made at least fifteen (15) days prior to the
delinquency date. Tenant shall have the right to contest Impositions if there
are reasonable grounds to do so or, if Tenant may not legally do so, to cause
Landlord to do so at Tenant's expense.
9. PERSONAL PROPERTY TAXES. Tenant shall pay prior to delinquency
all taxes assessed against and levied upon trade fixtures, furnishings,
equipment, and all other personal property of Tenant contained in the Premises
or elsewhere.
10. UTILITIES. Tenant shall pay all utility deposits and fees, and
all monthly service charges for heat, water, gas, electricity, sewer service,
elevator (if there be any) and cleaning service, telephone service, and any
other utilities or services whatsoever furnished to the Premises during the term
of this Lease.
11. PROPERTY INSURANCE. Landlord shall procure and maintain
throughout the terms of this Lease all-risk property and liability insurance
insuring the Property (including improvements and betterments, boilers and
machinery owned by Landlord, but excluding all equipment, trade fixtures,
inventory, machinery and other personal property of the Tenant); provided,
however, that Tenant shall maintain builder's risk insurance reasonably
satisfactory to Landlord effective from the commencement of construction of the
Tenant Improvements until the Commencement Date and Landlord's all-risk
insurance shall insure the Tenant Improvements from and after the Commencement
Date. Landlord's all-risk insurance shall insure the Property against risk of
direct physical loss (including loss caused by the perils of earthquake and, if
the Property is in an officially designated flood hazardous area, flood).
Landlord's insurance shall be in an amount equal to the actual replacement cost
of the Property (exclusive of foundations and excavations) without deduction for
physical depreciation, without a coinsurance clause and with a deductible not in
excess of $50,000. The property insurance carrier shall have an A. M. Best
Company rating of A:VII or better. Tenant agrees not to do, or fail to do,
anything which will violate the reasonable and customary terms of any such
insurance to the extent such terms are set forth in policies, copies of which
are delivered to Tenant, or otherwise disclosed to Tenant, increase the cost of
such insurance beyond a reasonable level (unless Tenant agrees to pay such
increase) or prevent Landlord from procuring policies reasonably satisfactory to
Landlord. Within ten days of billing by Landlord, Tenant will reimburse Landlord
for Tenant's Proportionate Share of the lesser of (a) all costs of such property
insurance carried by Landlord with respect to the Property, and (b) all costs
which would have been charged by an identically rated carrier (other than
Landlord's carrier) for the same coverage ("Insurance Costs"). Certificates
evidencing all such insurance coverages shall be delivered to Tenant by the date
of this Lease. Such certificates of insurance
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will provide for thirty (30) days advance notice to Tenant and Landlord in the
event of cancellation or nonrenewal of such insurance.
12. OTHER INSURANCE. Tenant agrees to maintain in full force and
from the Date of this Lease and in effect at all times during the term of this
Lease, at no expense to Landlord, for the protection of Tenant and Landlord, as
their interest may appear, policies of insurance issued by a responsible carrier
or carriers reasonably acceptable to Landlord which afford the following
coverages:
(a) Worker's Compensation - Statutory limits;
(b) Employer's liability - Not less than:
Bodily Injury by Accident - $250,000 each accident
Bodily Injury by Disease - $250,000 policy limit
Bodily Injury by Disease - $250,000 each employee; and
(c) Commercial General Liability Insurance on a coverage form at
least as broad as the most recent edition of Commercial General Liability
Coverage Form (CG0001) published by the Insurance Services Office, Inc. naming
the Landlord as Additional Insured using an endorsement form at least as broad
as the most recent edition of Additional Insured-Managers or Lessors of Premises
Endorsement Form (CG2011) as published by the Insurance Services Office, Inc.
The limits of such insurance shall be no less than:
Each Occurrence Limit $2,000,000
General Aggregate Limit $2,000,000
Products/Completed Operations
Aggregate Limit $2,000,000
Personal Injury and Advertising
Injury Limit $1,000,000
Fire Damage (Any One Fire) $50,000
Medical Expense (Any One Person) $5,000
Such Commercial General Liability Insurance shall cover Bodily Injury, Personal
Injury and Property Damage Liability occasioned by or arising out of or in
connection with the use, operation and occupancy of the Premises. Such
Commercial General Liability Insurance policy must cover events that occur
during the policy period regardless of when the claim is made. Such insurance
shall be primary insurance to any other insurance that may be available to
Landlord. Any other insurance available to Landlord shall be non-contributing
with and excess to this insurance.
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Certificates evidencing all such insurance coverages shall be
delivered to Landlord by the date of this Lease. Such certificates of insurance
will provide for thirty (30) days advance notice to Tenant and Landlord in the
event of cancellation or nonrenewal of such insurance.
13. LOSS PAYABLE REQUIREMENTS. All policies of insurance required
hereunder shall provide that the proceeds thereof shall be payable to Tenant and
Landlord, as their respective interests may appear, and, if Landlord so elects,
the policies referenced in paragraph 11 may be payable also to the holder of any
mortgage or deed of trust on the Premises as the interest of such holder may
appear, pursuant to a standard mortgagee clause or a loss payable clause.
14. WAIVER OF CLAIMS. Each party to this Lease hereby releases the
other from any and all claims, and waives its entire right of recovery against
the other, for loss or damage arising out of or incident to the perils insured
against under the policies specified in paragraphs 11 and 12 above to the extent
such loss or damage is insured against under such policies, whether due to the
negligence of such parties or the agents, employees, contractors, or invitees of
either of them. Tenant also waives all claims against Landlord with respect to
Tenant's personal property in the Premises.
15. LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS. Tenant agrees
that, if Tenant shall at any time fail to make any payment or perform any other
act to be made or performed by it under this Lease, Landlord may, but shall not
be obligated to, make such payment or perform such other act to the extent
Landlord may deem desirable, with full rights of offset, and without waiving or
releasing Tenant from any obligation under this Lease. All sums so paid by
Landlord and all expenses paid in connection therewith, including without
limitation attorneys' fees, together with interest thereon at the Default
Interest Rate (defined in the paragraph of this Lease entitled "Miscellaneous")
from the date of such payment, shall be paid by Tenant to Landlord on demand.
16. MAINTENANCE AND REPAIR. Except as otherwise set forth in this
Lease, Tenant shall, at Tenant's sole cost and expense, keep the entire Premises
(and every part thereof, including, without limitation, the roof membrane)
secure, clean and in good order, condition, and repair, and shall make promptly
all necessary repairs, interior and exterior, ordinary as well as extraordinary,
foreseen as well as unforeseen, casualty and condemnation excepted; provided,
however, that Landlord shall be responsible for maintaining and repairing the
foundation, the structure of the exterior walls and of the roof and the other
structural members of the Building in accordance with prudent property
management standards, unless the need for such maintenance and repair results
from Tenant's failure to satisfy its maintenance and repair obligations with
respect to the remainder of the Premises or (subject to
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the provisions of paragraphs 11 and 14 of this Lease) the negligence or
intentional acts of Tenant, its employees, agents, contractors or invitees.
Tenant shall also, at Tenant's sole cost and expense, keep the entire Fibermux
Area and any portions of the Rockwell Area provided by Landlord to Tenant for
parking pursuant to paragraph 4 of this Lease or any other provision of this
Lease (including, but not limited to, all paving, striping, landscaping and
attendant driveways, entrances, walkways, curbs, gutters, drains and the like)
clean and in good order, condition and repair, and shall make promptly all
necessary repairs, ordinary as well as extraordinary, foreseen as well as
unforeseen. When used in this paragraph, the term "repair(s)" shall include
alterations, replacements, and renewals. All repairs shall be equal in quality
and class to the original work. Landlord shall have no obligation, in any
manner whatsoever, to repair or maintain the Premises, except as specifically
otherwise provided in this Lease. Landlord may, at its option, perform Tenant's
repair obligations under this Lease at Tenant's expense if Tenant does not do so
within the applicable cure period provided for in this Lease.
17. SURRENDER OF PREMISES. Upon expiration or any sooner termination
of this Lease, Tenant shall surrender to Landlord the entire Premises, together
with all Alterations (as defined in paragraph 25 of this Lease), in the same
condition as when received or installed (unless such Alterations are to be
removed pursuant to paragraph 24 of this Lease), ordinary wear and tear and
casualty and condemnation excepted, and clean and free of debris and free of any
liens created or suffered to be created by Tenant and (b) Tenant shall properly
remove from the Premises all Hazardous Materials for which it has responsibility
under this Lease. Tenant may, and upon Landlord's request shall, remove any
Trade Fixtures or personal property belonging to Tenant, provided that Tenant
shall perform prior to expiration of the term of this Lease all restoration made
necessary by such removal. Landlord may, at Tenant's expense, retain or dispose
of in any manner any Trade Fixtures or personal property of Tenant that Tenant
does not remove from the Premises upon expiration or termination of the term of
this Lease, in which case title thereto shall vest in Landlord. The term "Trade
Fixtures" as used herein shall mean all fixtures, equipment, and personal
property owned by Tenant and used in connection with the operation of any
business on the Premises, whether or not affixed to the Premises.
18. SERVICE CONTRACTS. Tenant shall, at Tenant's sole cost and
expense, either (a) enter into a regularly scheduled preventive
maintenance/service contract with a maintenance contractor for servicing all hot
water, heating, and air conditioning systems, elevators (if there be any) and
building equipment within the Premises or (b) provide similar services through
the use of its own qualified employees. The maintenance contractor and the
contract, or the employees of Tenant, as the case may be, shall be subject to
the approval of Landlord (which approval shall be given or withheld in writing,
shall not be unreasonably withheld and shall be deemed to be not given if not
given or withheld in writing within 10
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days after a written request for such approval has been received by Landlord
from Tenant). The contract or employee-provided services shall include all
services suggested by the equipment manufacturers and shall become effective,
and a copy thereof shall be delivered to Landlord, within thirty (30) days of
the date Tenant takes possession of the Premises. Landlord shall deliver to
Tenant the service manuals for the items to be serviced as provided in this
paragraph and shall deliver and assign to Tenant all warranties covering such
items.
19. WASTE. Tenant shall not do or suffer any waste or damage,
disfigurement, or injury to the Premises or permit or suffer any overloading of
the floors of the Premises.
20. ADA. During the construction of the Tenant Improvements
specified in paragraph 53 of this Lease, Tenant shall also alter and renovate
the Premises to meet the standards established under the provisions of the
Americans With Disabilities Act ("ADA"), and, for such alterations and
additions, Landlord will pay Tenant the sum of $38,000.00 ("ADA Payment"),
regardless of the actual cost of such alterations and renovations. During the
full term of this Lease, Tenant shall also promptly, at its expense (except for
the ADA Payment), comply with the requirements of the ADA applicable to the
Premises, to the construction of the Tenant Improvements, to all other
alterations of the Premises by Tenant and to Tenant's use of the Premises.
21. WAIVER OF REPAIR AND DEDUCT. Tenant hereby waives any and all
rights it may have to make repairs at Landlord's expense or in lieu thereof to
vacate the Premises as provided in California Civil Code Section 1942 or any
other law, statute, or ordinance now or hereafter in effect; provided, however,
that such waiver does not constitute a waiver of any of Tenant's specific
self-help or setoff rights expressly set forth in this Lease.
22. COMPLIANCE WITH LAWS. Tenant shall, at Tenant's sole cost and
expense, comply promptly with all laws, ordinances, orders, regulations, and
requirements of all federal, state, and local governmental agencies, and with
the reasonable recommendations of any insurer under any policies required under
this Lease, that may be applicable to the Premises or the use thereof; provided,
however, that: (a) Tenant shall not be obligated to make any repairs,
alterations or improvements to the Premises that are required by governmental
authorities pursuant to requirements that were in effect on the date of this
Lease to the extent that the Building was not in compliance with such
requirements on the date of this Lease, except for ADA requirements; and (b)
Tenant shall not be responsible for any matters for which Landlord is
responsible under paragraph 23 of this Lease. Landlord shall be responsible for
the costs of compliance described in subparagraphs (a) and (b) of this paragraph
22. Tenant shall be obligated to make any repairs, alterations or improvements
to the Premises that are required by governmental
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authorities to comply with requirements enacted after the day of this Lease;
provided, however, that, with respect to such requirements that apply generally
to buildings similar to the Building, (1) Tenant will be obligated to cause such
compliance to occur and to pay the cost of such compliance only to the extent
such the cost of such compliance is equal to or less than $25,000 in any
calendar year and (2) Landlord will be obligated to cause such compliance to
occur and to pay the cost of such compliance only to the extent that the cost of
such compliance is in excess of $25,000 per calendar year. If Landlord pays any
cost under subparagraph (2) of this paragraph 22, then monthly Base Rent shall
be increased thereafter by an amount equal to the monthly amortization of such
cost paid by Landlord, determined using an interest rate equal to the Reference
Rate and a period equal to the manufacturer's estimated useful life of the
improvement, alteration and/or replacement to which such cost relates.
23. HAZARDOUS MATERIALS. Tenant agrees not to cause or permit the
presence, use, generation, release, discharge, storage, disposal, or
transportation of any Hazardous Materials (as defined below) on, under, in,
above, to, or from the Property other than presence, use, storage and
transportation which is both (a) required for and solely incidental to Tenant's
principal use and operation of the Premises, and (b) in strict compliance with
all applicable federal, state, and local laws, regulations, and orders (such
obligations of Tenant being referred to below as "Tenant's Environmental
Obligations"). For the purposes of this Lease the term "Hazardous Materials"
shall refer to any substances, materials, and wastes that are or become
regulated as hazardous or toxic substances under any applicable local, state, or
federal law, regulation, or order ("Environmental Laws"). Tenant shall
indemnify, defend, and hold Landlord harmless from and reimburse Landlord for
any breach of Tenant's Environmental Obligations and all of the following which
may result from such a breach: (1) any loss, cost, expense, claim, or liability
arising out of any investigation, reporting, monitoring, clean-up, containment,
removal, storage, or restoration work required by any applicable federal, state,
or local law, governmental agency, or political subdivision or prudent standards
of real estate ownership and management; and (2) any claims of third parties for
loss, injury, expense, or damage arising out of the presence, release, or
discharge of any Hazardous Materials on, under, in, above, to, or from the
Premises during the term of this Lease.
Landlord shall indemnify, defend, and hold Tenant harmless from and
reimburse Tenant as to the presence, use, generation, release, discharge,
storage, disposal, or transportation of any Hazardous Materials on, under, in,
above, to, or from the Property prior to the Commencement Date, other than as a
result of the breach of Tenant's Environmental Obligations, and all of the
following which may result therefrom: (A) any loss, cost, expense, claim, or
liability arising out of any investigation, reporting, monitoring, clean-up,
containment, removal, storage, or restoration work required by any applicable
federal, state, or local law (which
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requirements Landlord agrees to satisfy at its sole expense), governmental
agency, or political subdivision or prudent standards of real estate ownership
and management; and (B) any claims of third parties for loss, injury, expense,
or damage arising out of such presence, release, or discharge of any Hazardous
Materials on, under, in, above, to, or from the Premises ("Landlord's
Environmental Indemnity"). Landlord will deliver to Tenant, not later than the
date required by paragraph 59 of this Lease, an irrevocable Standby Letter of
Credit ("Letter of Credit") in the initial amount of $2,000,000, issued to
Tenant (but not its assigns) by The Development Bank of Singapore Ltd. (New York
Agency), or another bank of Landlord's selection which is reasonably
satisfactory to Tenant, as security for the performance of Landlord's
Environmental Indemnity. Such Letter of Credit shall be in substantially the
form attached to this Lease as EXHIBIT E.
If Landlord defaults at any time during the initial term in the
performance of Landlord's Environmental Indemnity and such default continues
uncured for 30 days after written notice to Landlord, Tenant may draw upon the
Letter of Credit for the full amount paid by Tenant to cure a breach of
Landlord's Environmental Indemnity. Landlord will, at Landlord's expense, keep
the Letter of Credit in effect in the initial amount, less such draws, until the
31st day after the end of the initial term of this Lease (or, if Hazardous
Materials as to which Landlord has indemnified the Tenant pursuant to this Lease
are present or have been used, generated, released, discharged, stored, disposed
of or transported on, in, above, to or from the Property during the initial term
of this Lease, then until such later date as (i) all governmental agencies
having jurisdiction under Environmental Laws make final determinations that all
of the proper actions have been taken or that no actions are required with
respect to such Hazardous Materials and such determinations have been delivered
to Tenant or (ii) a court having jurisdiction over such matters determines that
Landlord has no indemnification responsibilities to Tenant regarding such
Hazardous Materials under the terms of this Lease and all appeals or the time
periods therefor have been exhausted with no change in such determination);
provided, however, that Tenant may waive such requirement at any time by express
written notice.
Tenant will have the right to draw on the Letter of Credit for the
then full amount of the Letter of Credit if Landlord fails to renew the Letter
of Credit in an amount equal to the original amount thereof, less any amounts
drawn by Tenant to date, and for a period equal to the shorter of (x) 1 year or
more or (y) the remaining portion of the period with respect to which Landlord
is required to maintain the Letter of Credit, if such period can be determined
with certainty, and accomplish such renewal and deliver the renewed Letter of
Credit to Tenant at least 15 days before any expiration date, time being of the
essence. If Tenant draws upon the Letter of Credit because Landlord has failed
to renew the Letter of Credit as required above, Tenant shall hold the proceeds
of such draw in a separate interest-
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bearing account (in Tenant's name) of Tenant's choosing. The proceeds and
interest in such account shall be paid to Tenant or Landlord as follows:
(AA) to Landlord, upon receipt by Tenant of a renewed Letter of
Credit conforming to the requirements of this Lease;
(BB) to Tenant, if and to the extent that Tenant would have been
entitled to draw upon the Letter of Credit if it had been renewed; and/or
(CC) to Landlord, if and when Landlord is no longer required to
provide the Letter of Credit under the terms of this Lease.
Tenant agrees that, upon termination of Landlord's obligation to
provide the Letter of Credit, Tenant will surrender the Letter of Credit to
Landlord and will execute all such certificates as Landlord reasonably requests
in connection with the termination of the Letter of Credit.
Landlord represents and warrants to Tenant that Landlord has no
knowledge of the presence of any Hazardous Materials on, in, or under the
Property in violation of an Environmental Law or of the escape, seepage,
leakage, spillage, discharge, deposit, disposal, emission or release of any
Hazardous Materials on, in, under or from the Premises in violation of an
Environmental Law, except if set forth in (a) that certain Environmental
Assessment for 21605 Plummer Street, Chatsworth (Symbolic II), prepared by
Rockwell, or (b) that certain draft soil and groundwater assessment report for
21415 and 21605 Plummer Street, Chatsworth, California, dated November 23, 1992,
prepared by Groundwater Technology, or (c) that certain letter prepared by
Clayton Environmental Consultants dated November 10, 1992 (collectively, the
"Environmental Assessments"). Tenant represents and warrants to Landlord that
Tenant has no knowledge of the presence of any Hazardous Materials on, in, or
under the Property in violation of an Environmental Law or of the escape,
seepage, leakage, spillage, discharge, deposit, disposal, emission or release of
any Hazardous Materials on, in, under or from the Premises in violation of an
Environmental Law, except if set forth in the Environmental Assessments.
Tenant agrees to provide to Landlord, within 10 days of receipt, a
copy of any notice regarding violation of any Environmental Law on or about the
Premises arising out of Tenant's operations on the Premises, a copy of any
report required by an Environmental Law regarding violation of the Environmental
Law on or about the Premises arising out of Tenant's operations on the Premises
and a copy of any notice of the emission or release of Hazardous Materials in
violation of an Environmental Law or arising out of Tenant's operations on the
Premises. Each Party agrees to provide to the other, within 10 days of receipt,
a copy of all test reports and correspondence associated with the investigation,
monitoring and
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remediation of soil and groundwater on, in or under the Property and a copy of
any notice regarding the presence of any Hazardous Materials on, in, or under
the Property or the escape, seepage, leakage, spillage, discharge, deposit,
disposal, emission or release of any Hazardous Materials on, in, under or from
the Property in violation of any Environmental Law.
If (aa) there is any Hazardous Material on, in, or under the Premises
in violation of an Environmental Law (other than those arising out of a breach
of Tenant's Environmental Obligations) and (bb) as a result thereof, there is,
in the reasonable opinion of Tenant, a danger of harm to the employees or
invitees of Tenant, and a governmental agency having jurisdiction orders Tenant
to vacate the Premises or any affected portion of the Premises and Tenant does
so, then all Base Rent, Impositions, Insurance Costs and other amounts due under
this Lease will abate from the date of such vacation, in proportion to the space
vacated, until the governmental agency which ordered the vacation rescinds or
terminates its order. If such governmental order is not rescinded or
terminated within ninety (90) days after such vacation of all or part of the
Premises by Tenant, either Landlord or Tenant may, within 30 days after the
expiration of such 90 day period, terminate this Lease by written notice to the
other party.
Tenant shall have the right during the term of this Lease to conduct
such environmental testing and monitoring of the Premises as Tenant deems
appropriate, including the installation of ground water monitoring wells and/or
such other testing and monitoring as might be included in a Phase II
environmental assessment. Such testing and monitoring shall be conducted in
accordance with applicable laws and regulations and only after not less than
thirty (30) days prior written notice to Landlord.
The obligations of Landlord and Tenant under this paragraph shall
survive the assignment, termination or cancellation of this Lease. The rights
of Landlord and Tenant under this paragraph shall be in addition to any other
rights and remedies which Landlord or Tenant may have against the Property, each
other or any other person under any other document or any Environmental Law.
24. ALTERATIONS. Except for non-structural alterations costing less
than $25,000, Tenant shall not alter the Premises or any part of the Property
without the prior written consent of Landlord (which consent shall be given or
withheld in writing, shall not be unreasonably withheld and shall be deemed to
be not given if not given or withheld in writing within 10 days after a written
request for such consent has been received by Landlord from Tenant), which
consent may be granted upon the condition that such alterations be removed (and
the affected portion of the Premises restored), at Tenant's expense, at the
expiration or earlier termination of this Lease. Each written request for such
consent shall contain a paragraph to be
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signed by Landlord indicating whether or not the alteration in question must be
removed by Tenant at the expiration or earlier termination of this Lease.
25. PROPERTY OF LANDLORD. Unless otherwise provided in this Lease,
all repairs, improvements, changes, alterations, and building equipment and
machinery (other than Trade Fixtures, Tenant's telephone switch and equipment,
air compressors and auxiliary air conditioners) made or installed by Tenant
(collectively, "Alterations") shall immediately upon completion or installation
thereof be and become the property of Landlord without payment therefor by
Landlord.
26. DAMAGE OR DESTRUCTION. Subject to the other provisions of this
Lease, if the Premises or any portion thereof becomes damaged or wholly or
partially untenantable because of fire, earthquake, act of God, the elements or
other casualty, Landlord shall repair such damage with and to the extent of the
insurance proceeds made available to Landlord for such purpose. However, if in
Landlord's opinion such repairs cannot be made within one hundred eighty (180)
days, Landlord shall so notify Tenant in writing within thirty (30) days of the
date of such damage. In such event, either Tenant or Landlord may terminate
this Lease within thirty (30) days after Landlord's notice. Termination shall
be effected by written notice delivered to the other party within said thirty
(30) day period. If this Lease is not so terminated, it shall remain in full
force and effect except that an abatement of Base Rent, Impositions, Insurance
Costs and other amounts due under this Lease shall be allowed Tenant for such
part of the Premises as shall be rendered unusable by Tenant in the conduct of
its business during the time such part is so unusable.
27. WAIVER. Tenant hereby waives California Civil Code Sections
1932, 1933, 1941 and 1942, and the provisions of any other law now or hereafter
in effect that would relieve Tenant from any obligation to pay rent under this
Lease except to the extent expressly provided in this Lease.
28. CONDEMNATION. If the Premises or any portion thereof is taken
under the power of eminent domain (hereinafter referred to as "Condemnation"),
this Lease shall terminate as to the part so taken as of the date the condemning
authority takes title or possession, whichever occurs first. If more than 10% of
the floor area of the Premises is taken by Condemnation, then at Tenant's
option, exercisable only in writing and within ten (10) days after Landlord
shall have given Tenant written notice of such taking (or, in the absence of
such notice, within ten (10) days after the condemning authority shall have
taken possession), and provided that Tenant is not in default under this Lease,
Tenant may terminate this Lease as of the date the condemning authority takes
possession. If Tenant does not terminate this Lease in accordance with the
foregoing, this Lease shall remain in full force and effect as to the portion of
the Premises remaining, except that the Basic Rent shall be
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reduced in the proportion that the floor area of the portions of the Premises
taken bears to the total floor area of the Premises.
29. CONDEMNATION AWARD. In the event any portion of the Premises is
taken by Condemnation, Landlord shall be entitled to and shall receive the total
award made in such Condemnation, which award Tenant hereby assigns to Landlord,
except that Tenant shall be entitled to receive such portion of the award as may
be specifically allocated in such proceedings to compensation for Tenant's Trade
Fixtures, for improvements paid for by Tenant and not reimbursed out of the
Tenant Improvement Allowance and for Tenant's relocation expenses.
30. RESTORATION. If less than the entire Premises shall be taken by
Condemnation, and this Lease is not terminated pursuant to paragraph 28, with
the net amount of any award received by Landlord in any proceeding for physical
damage to the Premises after deducting all of Landlord's costs and expenses of
collection, including without limitation attorneys' fees, Landlord shall
promptly restore that portion of the Premises not so taken to a complete
architectural unit.
31. TENANT'S WORK. All work done by Tenant, its agents and
contractors, in or about the Premises or the Property (hereinafter called the
"Work") shall be done in all cases subject to the following conditions, each of
which Tenant covenants to observe and perform:
(a) No Work involving any structural change and no Work
involving any alteration, restoration, or rebuilding costing more than $25,000
shall be undertaken until detailed plans and specifications have first been
submitted to and approved in writing by Landlord (which approval shall be given
or withheld in writing, shall not be unreasonably withheld and shall be deemed
to be not given if not given or withheld in writing within 10 days after a
written request for such approval has been received by Landlord from Tenant).
(b) No Work involving a cost, as reasonably estimated by Tenant,
of more than $25,000 shall be undertaken except under the supervision of an
architect or engineer approved in writing by Landlord (unless such requirement
is waived by Landlord in writing).
(c) All Work shall be (i) commenced only after Landlord has
received 10 days' prior notice of such Work or Landlord has approved such Work
and only after all required local and other governmental permits and
authorizations have been obtained, (ii) done in a good and workmanlike manner,
(iii) performed in compliance with the building and zoning laws and with all
other laws, ordinances, regulations, and requirements of all federal, state, and
local governmental agencies, and in accordance with the recommendations of any
insurer under any policies required by this Lease, and (iv) completed promptly
and
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free of liens. Approval of any Work by Landlord shall not imply or be construed
to indicate compliance with above requirements.
32. MECHANICS' LIENS. Tenant shall not suffer or permit any
mechanics' or other liens (or claims thereof) to be filed against the Premises
(or Tenant's leasehold interest therein or hereunder) or the Property by reason
of work, labor, services, or materials supplied or claimed to have been supplied
to Tenant or anyone holding the Premises or any part thereof through or under
Tenant; provided, however, that Tenant shall have the right to contest any such
liens so long as Tenant provides Landlord with reasonable security (by bond,
escrow or otherwise) during such contest. Landlord shall have the right at all
reasonable times to post and keep posted on the Premises any notices that
Landlord may deem necessary or advisable for the protection of Landlord, the
Premises and the Property from mechanics' liens. If any such liens (or claims
thereof) shall at any time be filed against the Premises or the Property, Tenant
shall contest the liens or claims as provided above or shall cause the same to
be discharged of record within forty-five (45) days after the date of filing.
33. FINANCIAL STATEMENTS. Upon the request of Landlord, Tenant shall
provide to Landlord, at no expense to Landlord, copies of the most recent
quarterly and annual financial reports with respect to Tenant as have been made
available by Tenant to its shareholders.
34. LANDLORD'S ENTRY. Tenant agrees to permit Landlord and any
authorized representatives of Landlord, upon reasonable prior notice to Tenant,
to enter the Premises with reasonable frequency during usual business hours, or
at any other time in case of emergency, (a) to inspect (which may include
environmental audits) the Premises and, if Landlord so desires, but without
implying any obligation of Landlord to do so, to make any repairs deemed
necessary or desirable by Landlord and to perform any work in the Premises
deemed necessary by Landlord to comply with any laws or the recommendations of
any insurer, and (b) during the final twelve months of the term of this Lease,
for the purpose of leasing the Premises, during which twelve-month period
Landlord may display on the Premises, in such manner as not to interfere
unreasonably with Tenant's business, usual "For Sale" or "To Let" signs.
35. ASSIGNMENT AND SUBLETTING.
(a) Tenant shall not, without the prior consent of Landlord
(which consent shall be given or withheld in writing, shall not be unreasonably
withheld and shall be deemed to be not given if not given or withheld in writing
within 10 days after a written request for such consent has been received by
Landlord from Tenant), assign this Lease or any interest herein, sublet the
Premises or any part thereof, or permit the use of the Premises by any party
other than Tenant. This
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Lease shall not, nor shall any interest herein, be assignable as to the interest
of Tenant by operation of law except as herein otherwise provided. Any of the
foregoing acts without such consent shall be void and shall, at the option of
Landlord, terminate this Lease. In connection with each consent requested by
Tenant, Tenant shall submit to Landlord the terms of the proposed transaction,
the identity of the parties to the transaction, the proposed documentation for
the transaction, and all other information reasonably requested by Landlord
concerning the proposed transaction and the parties involved.
(b) If the Tenant is a privately held corporation, the transfer
(except pursuant to a public offering), assignment, or hypothecation of any
stock or interest in such corporation in excess of fifty percent (50%) in the
aggregate of the voting stock or interest in Tenant shall be deemed an
assignment or transfer within the meaning and provisions of this paragraph. If
Tenant is a publicly held corporation, the public offering or trading of stock
in Tenant shall not be deemed an assignment or transfer within the meaning of
this paragraph.
(c) Without limiting the other instances in which it may be
reasonable for Landlord to withhold its consent to an assignment or subletting,
Landlord and Tenant acknowledge that it shall be reasonable for Landlord to
withhold its consent in the following instances:
(1) if at the time consent is requested or at any time
prior to the granting of consent, Tenant is in default under this Lease or would
be in default under this Lease but for the pendency of any grace or cure period
specified in this Lease; or
(2) if the proposed assignee or sublessee is a governmental
agency; or
(3) if, in Landlord's reasonable judgment, the use of the
Premises by the proposed assignee or sublessee would involve occupancy in
violation of this Lease.
(d) If at any time during the term of this Lease Tenant desires
to assign its interest in this Lease or sublet all or any part of the Premises,
Tenant shall give notice to Landlord setting forth the terms of the proposed
assignment or subletting ("Tenant's Request"). If the consummation of the
assignment or sublease would cause Tenant to occupy less than 50% of the
rentable area of the Premises, Landlord shall have the option, exercisable by
written notice given to Tenant within thirty (30) days after Tenant's Request is
given ("Landlord's Option Period"), either (1) to consent to the assignment
(which consent shall not be unreasonably withheld and shall be deemed to be not
given if not given or withheld in writing within such 30-day period), in which
event the provisions of subparagraph (g) shall be applicable,
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or to consent to the subletting in which event the provisions of subparagraph
(h) shall be applicable; (2) to become the assignee or sublessee of Tenant
(instead of the entity specified in Tenant's Request) upon the terms set forth
in Tenant's Notice; (3) in the event of (A) a proposed assignment, or (B) a
proposed subletting of the entire Premises, or a portion of the Premises for all
or substantially all of the remainder of the term, to terminate this Lease with
respect to, and to retake possession of, the space in question, together with,
if only a portion of the Premises is involved, such rights of access to and from
such portion as may be reasonably required for its use and enjoyment. If the
foregoing sentence is applicable and Landlord does not exercise one of such
options, or if Landlord consents or is deemed to consent to the proposed
assignment or sublease, Tenant shall be free for a period of one hundred twenty
(120) days after giving Tenant's Request, or one hundred twenty (120) days after
the date Landlord's consent (if such consent is required) is given to Tenant, or
one hundred twenty (120) days after the expiration of Landlord's Option Period
(if applicable), to assign its entire interest in this Lease or to sublet such
space to the entity specified in Tenant's Request upon the terms set forth
therein or to any third party upon the same terms set forth in Tenant's Request,
subject to obtaining Landlord's prior consent as hereinabove provided.
(e) Notwithstanding the provisions of subparagraphs (a) and (b)
above, Tenant may assign this Lease or sublet the Premises or any portion
thereof, with prior notice to Landlord but without the necessity of Landlord's
consent and without extending any option to Landlord pursuant to subparagraph
(d) above, to any corporation which controls, is controlled by or is under
common control with Tenant, or to any corporation resulting from the merger or
consolidation with Tenant ("Affiliate").
(f) No sublease, once consented to by Landlord, shall be
modified or terminated by Tenant without Landlord's prior consent (which consent
shall be given or withheld in writing, shall not be unreasonably withheld and
shall be deemed to be not given if not given or withheld in writing within 10
days after a written request for such consent has been received by Landlord from
Tenant).
(g) In the case of an assignment to an entity other than
Landlord or an Affiliate, 50% of all sums and other economic consideration
received by Tenant as a result of such assignment shall be paid to Landlord
after first deducting 50% of: (1) the unamortized cost of leasehold improvements
paid for by Tenant, (2) the cost of any concessions and inducements given to the
assignee by Tenant and (3) the cost of any real estate commissions and other
marketing costs incurred by Tenant in connection with such assignment.
(h) In the case of a subletting to an entity other than Landlord
or an Affiliate, 50% of all sums and economic consideration received by Tenant
as a result of such subletting shall be paid to Landlord after first deducting
50% of (1) the
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rental due hereunder, prorated to reflect only rental allocable to the sublet
portion of the Premises, (2) the cost of leasehold improvements made to the
sublet portion of the Premises at Tenant's cost, amortized over the term of this
Lease except for leasehold improvements made for the specific benefit of the
sublessee, and the cost of any concessions and inducements given to the
subtenant by Tenant, all of which shall be amortized over the term of the
sublease, and (3) the cost of any real estate commissions and other marketing
costs incurred by Tenant in connection with such subletting, amortized over the
term of the sublease.
(i) Regardless of Landlord's consent, no subletting or
assignment (except to Landlord pursuant to the provisions of subparagraph (d)
above) shall release Tenant of Tenant's obligation or alter the primary
liability of Tenant to pay the rent and to perform all other obligations to be
performed by Tenant hereunder. The acceptance of rent by Landlord from any
other person shall not be deemed to be a waiver by Landlord of any provision
hereof. Consent to one assignment or subletting shall not be deemed consent to
any subsequent assignment or subletting. In the event of default by any
assignee of Tenant or any successor of Tenant in the performance of any of the
terms hereof, Landlord may proceed directly against Tenant without the necessity
of exhausting remedies against such assignee or successor. Landlord may consent
to subsequent assignments or subletting of this Lease or amendments or
modifications to this Lease with assignees of Tenant, without notifying Tenant,
or any successor of Tenant, and without obtaining its or their consent thereto,
and such action shall not relieve Tenant of liability under this Lease.
(j) In the event Tenant shall once request the consent of
Landlord to any assignment or subletting, then as to each request for consent to
a further assignment or subletting Tenant shall pay Landlord's then reasonable
and standard processing fee and Landlord's reasonable attorneys' fees incurred
in connection therewith; provided, however, that Tenant shall not be required to
pay Landlord in excess of $500 for Landlord's processing fee or attorney's fees
in connection with any such request.
(k) In the event of an assignment of this Lease by Tenant to an
Affiliate, if Tenant returns the Letter of Credit to Landlord and requests
Landlord to do so in writing, Landlord shall promptly cause the Letter of Credit
to be reissued in the name of the assignee as Beneficiary. In the event of any
other assignment of this Lease by Tenant, the Letter of Credit will not be
issued in the name of the assignee and the assignee will have no right to draw
upon or have the benefits of the Letter of Credit.
(l) If the initial Tenant assigns this Lease to an Affiliate and
does not request that the Letter of Credit be reissued in the name of the
Affiliate as Beneficiary pursuant to subparagraph 35(k) above, the Letter of
Credit shall be
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maintained by Landlord as required by this Lease for the remainder of the
initial term of this Lease and the initial Tenant shall be entitled to draw upon
the Letter of Credit on its own behalf or on behalf of such Affiliate.
36. SUBORDINATION. At Landlord's option, this Lease shall be
subordinate to any ground lease, mortgage, deed of trust, or any other
hypothecation or security now or hereafter placed upon the Premises and to any
and all advances made on the security thereof and to all renewals,
modifications, consolidations, replacements, and extensions thereof.
Notwithstanding such subordination, Tenant's right to a quiet possession of the
Premises shall not be disturbed if Tenant is not in default and so long as
Tenant shall pay the rent and observe and perform all of the provisions of this
Lease, unless this Lease is otherwise terminated pursuant to its terms. If any
mortgagee, trustee, or ground lessor shall elect to have this Lease prior to the
lien of its mortgage, deed of trust, or ground lease, and shall give written
notice thereof to Tenant, this Lease shall be deemed prior to such mortgage,
deed of trust, or ground lease, whether this Lease is dated prior or subsequent
to the date of such mortgage, deed of trust, or ground lease or the date of the
recording thereof.
37. ATTORNMENT. In the event any proceedings are brought for the
foreclosure of, or in the event of exercise of the power of sale under, any
mortgage or deed of trust now or hereafter on the Premises or any part thereof,
Tenant shall, if so requested by the purchaser upon such foreclosure or sale or
the grantee under a deed in lieu of foreclosure, attorn to such purchaser or
grantee and recognize such purchaser or grantee as the Landlord under this
Lease.
38. INDEMNIFICATION. Tenant agrees to indemnify, defend, and save
Landlord harmless from and to reimburse Landlord for any and all claims arising
from (a) the conduct or management of, or any work or thing whatsoever done by
or for Tenant in or about the Premises or the Property during the term of this
Lease, (b) any condition existing during the term of this Lease of (i) the
Premises, (ii) any street, curb, or sidewalk adjoining the Premises, or (iii)
any vaults, passageways, or spaces therein or appurtenant thereto, (c) any
breach or default on the part of Tenant in the performance of any covenant or
agreement on the part of Tenant to be performed pursuant to the terms of this
Lease, (d) any act or negligence of Tenant or any of its agents, contractors,
servants, employees, or licensees occurring about the Premises, (e) any
accident, injury, or damage whatsoever caused to any person, firm, or
corporation occurring during the term of this Lease in or about the Premises or
upon or under the sidewalks or the land adjacent thereto, and (f) any and all
costs, counsel fees, expenses, and liabilities reasonably incurred in connection
with the such claim or action or proceeding brought thereon, except to the
extent that any of the above-described claims arise out of the negligence or
willful misconduct of Landlord, in which case Landlord agrees to indemnify,
defend, and save Tenant harmless from and to reimburse Tenant for any and all
claims arising from such
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negligence or wilful misconduct. In case any action or proceedings be brought
against an indemnified party by reason of an indemnified claim, the indemnifying
party, upon notice from the indemnified party, covenants to resist or defend
such action or proceeding by counsel satisfactory to the indemnified party.
39. ATTORNEYS' FEES. If any action arising out of this Lease is
brought by either party hereto against the other, then and in that event the
unsuccessful party to such action shall pay to the prevailing party all costs
and expenses, including reasonable attorneys' fees, incurred by such prevailing
party, and if the prevailing party shall recover judgment in such action, such
costs, expenses and attorneys' fees (at trial and on appeal) shall be included
in and as part of such judgment.
40. LANDLORD'S CORRECTION OF DEFECTS; REPRESENTATIONS. Tenant shall,
within 30 days after commencing construction of the Tenant Improvements, provide
Landlord with a written list of operating defects, if any, observed by Tenant in
the Building's systems or the portions of the Premises for which Landlord has
maintenance responsibility under paragraph 16 of this Lease. Landlord will, not
later than the Commencement Date (or such earlier date as may be reasonably
required by Tenant in order for Tenant to complete the Tenant Improvements on or
before the Commencement Date), correct such defects. Except as otherwise
expressly provided in this Lease, Landlord has made no representations of any
nature whatsoever in connection with the condition of the Premises or the
Property or any part thereof, and Landlord shall not be liable for any defects
therein.
41. EVENTS OF DEFAULT. The following events shall be deemed to be
events of default by Tenant under this Lease:
(a) The failure of Tenant to pay any installments of Base Rent
or additional rent when due, or any other payment or reimbursement to Landlord
required herein when due, where such failure shall continue for a period of five
(5) days after written notice of such failure.
(b) (i) The application by Tenant for, or Tenant's consent to
the appointment of, a receiver, trustee, or liquidator of Tenant or of all or a
substantial part of Tenant's assets, (ii) the making by Tenant of any general
arrangement or assignment for the benefit of creditors, (iii) Tenant becoming a
"debtor" as defined in 11 U.S.C. Section 101 or any successor statute thereto
(unless, in the case of a petition filed against Tenant, the same is dismissed
within sixty (60) days), (iv) the appointment of a trustee or receiver to take
possession of all or substantially all of Tenant's assets located at the
Premises or of Tenant's interest in this Lease (unless possession is restored to
Tenant within ninety (90) days) or (v) the attachment, execution, or other
judicial seizure of all or substantially all of Tenant's
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assets located at the Premises or of Tenant's interest in this Lease (unless
such seizure is discharged within ninety (90) days).
(c) Tenant shall fail to comply with any other term, provision,
or covenant of this Lease, where such failure shall continue for a period of
twenty (20) days after written notice thereof to Tenant, provided, however, that
if such failure cannot reasonably be cured within twenty (20) days, Tenant shall
not be deemed in default with respect to such failure if Tenant commences to
cure such default within said twenty (20) day period and thereafter diligently
and continuously prosecutes such cure to a prompt completion. In the event
Landlord serves Tenant with a "Notice to Perform or Quit" pursuant to applicable
unlawful detainer statutes, such notice shall also constitute the notice
required by this subparagraph, provided that such notice gives Tenant at least
twenty (20) days in which to perform or quit.
42. LANDLORD'S REMEDIES. Upon the occurrence of any event of default
by Tenant, Landlord may, at its option and without any further notice or demand
(in addition to any other rights and remedies under this Lease, at law or in
equity) do any of the following:
(a) Landlord shall have the right, so long as such default
continues, to give notice of termination to Tenant. On the date specified in
such notice (which shall not be less than three (3) days after the giving of
such notice) this Lease shall terminate.
(b) In the event of any such termination of this Lease, Landlord
may then or at any time thereafter re-enter the Premises and remove therefrom
all persons and property and again repossess and enjoy the Premises, without
prejudice to any other remedies that Landlord may have by reason of Tenant's
default or of such termination.
(c) The amount of damages that Landlord may recover in the event
of such termination shall include, without limitation: (1) the amount at the
time of award (computed by discounting such amount at the discount rate of the
Federal Reserve Bank of San Francisco at the time of award plus one percent) of
(A) unpaid rent earned at the time of termination, (B) the amount by which the
unpaid rent that would have been earned during the period from termination until
the award exceeds the amount of such rent loss that Tenant proves could have
been reasonably avoided, and (C) the amount by which the unpaid rent for the
balance of the term after the time of award exceeds the amount of such rent loss
that Tenant proves could be reasonably avoided; (2) all legal expenses and other
related costs incurred by Landlord following Tenant's default; (3) all costs
incurred by Landlord in restoring the Premises to good order and condition, or,
to the extent reasonably necessary to accomplish such reletting, in remodeling,
renovating, or otherwise
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preparing the Premises for reletting; and (4) all other costs (including without
limitation any brokerage commissions) incurred by Landlord in
reletting the Premises.
(d) Following the termination of this Lease (or upon Tenant's
failure to remove its personal property from the Premises after the expiration
of the term of this Lease), Landlord may remove any and all personal property
located in the Premises and sell or place such property in a public or private
warehouse or elsewhere at the sole cost and expense of Tenant in accordance with
applicable law. Tenant waives all claims for damages that may be caused by
Landlord's removing, storing, or selling the property as herein provided.
(e) Landlord shall have the right to cause a receiver to be
appointed in any action against Tenant to take possession of the Premises and to
collect the rents or profits derived therefrom. The appointment of such
receiver shall not constitute an election on the part of Landlord to terminate
this Lease unless notice of such intention is given to Tenant.
(f) Landlord shall have the remedy described in California Civil
Code Section 1951.4 (i.e. Landlord may continue this Lease in effect after
Tenant's abandonment and recover rent as it becomes due, because Tenant has the
right to sublet or assign, subject only to reasonable limitations). 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 in periodic actions as it becomes due
under this Lease. In such event, Landlord may re-enter the Premises and remove
all persons and property if the Premises have not been vacated, using any
available summary proceedings, without such re-entry or removal being deemed a
termination or acceptance of surrender of this Lease. Landlord may then elect to
relet the Premises for the account of Tenant for a period that may extend beyond
the term hereof, and upon such other terms as Landlord may reasonably deem
appropriate. Tenant shall reimburse Landlord upon demand for all costs incurred
by Landlord in connection with such reletting, including without limitation
necessary restoration, renovation, or improvement costs, attorneys' fees, and
brokerage commissions. The proceeds of such reletting shall be applied first to
any sums then due and payable to Landlord from Tenant, including the
reimbursement described above. The balance, if any, shall be applied to the
payment of future rent as it becomes due hereunder.
43. TENANT'S SETOFF RIGHTS. If (a) Landlord fails to perform any
repair or maintenance obligation of Landlord under this Lease, and fails to cure
such default within 30 days after receipt of notice of such default from Tenant
(or, if Landlord's repair or maintenance obligation cannot be reasonably
performed within 30 days, Landlord fails to commence to perform it within such
30-day period and to
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thereafter diligently prosecute it to a prompt conclusion), or (b) Landlord
fails to pay Tenant the Tenant Improvement Allowance when required to do so
under this Lease, and fails to cure such default within one year after receipt
of notice of such default from Tenant, Tenant may cure such default and charge
the costs to Landlord (plus interest on such charges from the date the charges
are incurred by Tenant, at the Default Interest Rate), and may set off such
costs and interest, and/or any portion of the Tenant Improvement Allowance that
has not been made to Tenant by Landlord (plus interest on such portion from the
date it was due to Tenant, at the Default Interest Rate), against installments
of Base Rent due under this Lease; provided, however, that Tenant shall not
set-off against more than 25% of the Base Rent due in any month (but such
limitation shall not apply to the final 6 months of this Lease). Tenant shall
be permitted to continue to set off against succeeding installments of Base Rent
due under this Lease until the total amount of such costs or payment and
interest thereon have been recovered by Tenant.
44. CUMULATIVE REMEDIES. The specified remedies to which Landlord
may resort under the terms of this Lease are cumulative and are not intended to
be exclusive of any other remedies or means of redress to which Landlord may be
entitled, either at law or in equity, in case of any breach or threatened breach
by Tenant of any covenant, agreement, or condition of this Lease.
45. NO WAIVERS. The failure of Landlord to insist in any one or more
instances upon the strict performance or observance of any of the covenants,
agreements, or conditions of this Lease or to exercise any option herein
contained shall not be construed as a waiver or a relinquishment of future
performance or observance of such covenant, agreement, or condition or exercise
of such option.
46. HOLDING OVER. Tenant covenants that it will vacate the Premises
immediately upon the expiration or sooner termination of this Lease. If, with
Landlord's consent, Tenant retains possession of the Premises or any part
thereof after the expiration or termination hereof, Tenant shall pay Landlord
200% of the Base Rent due under this Lease immediately before such expiration or
termination, for the time Tenant thus remains in possession. The provisions of
this paragraph do not exclude Landlord's rights of re-entry or any other right
hereunder, including without limitation the right to refuse 200% Base Rent and
instead to remove Tenant through summary proceedings for holding over beyond the
expiration of the term of this Lease.
47. NOTICES. All notices, demands, and requests that may or are
required to be given by either party to the other shall be in writing and shall
be deemed given when sent by United States Certified Mail, postage prepaid, (a)
if for Tenant, addressed to Tenant (Attn: Chief Financial Officer), prior to
Commencement Date at 9310 Topanga Canyon Boulevard, Chatsworth, California 91311
and after the Commencement Date at the address of the Premises, in either
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case with a copy to ADC Telecommunications, Inc., 12501 Whitewater Drive,
Minnetonka, Minnesota 55343 (Attn: Chief Financial Officer and Attn: General
Counsel), or at such other address or addresses as Tenant may from time to time
designate by written notice to Landlord, or (b) if for Landlord, addressed to
Landlord, c/o GSIC Realty Corporation, 255 Shoreline Drive, Suite 600, Redwood
City, California 94065 or at such other places as Landlord may from time to time
designate by written notice to Tenant.
48. LIMITATION OF LANDLORD'S LIABILITY. In the event of a sale or
transfer by Landlord of its interest in the Premises or this Lease, such sale or
transfer shall operate to release the transferor from all liability for the
performance of the obligations of Landlord hereunder, expressed or implied, from
and after the date of such transfer, and Tenant agrees thereafter to look solely
to the successor in interest of Landlord in and to this Lease for the
performance of Landlord's obligations hereunder accruing after the date of such
transfer (including the return of the Security Deposit) and thereupon Landlord
shall be discharged from any further liability with respect thereto.
49. ESTOPPEL CERTIFICATES. At any time and from time to time upon
not less than ten (10) days' prior request by Landlord, Tenant agrees to
execute, acknowledge, and deliver to Landlord a statement in writing certifying
(a) that this Lease is unmodified and in full force and effect (or if there have
been modifications, that the same is in full force and effect as modified and
identifying the modifications), (b) the dates to which Base Rent, Impositions,
Insurance Costs and other amounts due under this Lease have been paid, and (c)
whether there is then existing any claim by Tenant of default hereunder by
Landlord and, if so, specifying the nature thereof. It is intended that any such
statement may be relied upon by any person proposing to acquire Landlord's
interest in this Lease or any prospective mortgagee of, or assignee of any
mortgage upon, such interest. At any time and from time to time upon not less
than ten (10) days' prior request by Tenant, Landlord agrees to execute,
acknowledge, and deliver to Tenant a statement in writing certifying (a) that
this Lease is unmodified and in full force and effect (or if there have been
modifications, that the same is in full force and effect as modified and
identifying the modifications), (b) the dates to which Base Rent, Impositions,
Insurance Costs and other amounts due under this Lease have been paid, and (c)
whether there is then existing any claim by Landlord of default hereunder by
Tenant and, if so, specifying the nature thereof. It is intended that any such
statement by Landlord may be relied upon by any person proposing to receive a
mortgage or assignment of Tenant's interest in this Lease or to enter into any
sublease of all or part of the Premises.
50. BROKERAGE. Each party represents and warrants to the other that
it has not dealt with any broker, agent, or other person in connection with this
transaction and that no other broker, agent, or other person brought about this
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transaction through it, other than CB Commercial Real Estate, Mel Goldstein, Bob
Shafer, The Johnston Group and Cal Johnston (whose commissions shall be paid by
Landlord), and each party agrees to indemnify and hold the other party harmless
from and to reimburse the other party for any and all claims by any other
broker, agent, or person claiming a commission or other form of compensation by
virtue of having dealt with it with respect to this leasing transaction. The
provisions of this paragraph shall survive the termination of this Lease.
51. SECURITY DEPOSIT. Tenant shall, upon execution of this Lease,
deposit with Landlord the sum of $77,000.00 as security for the full and
faithful performance of every provision of this Lease to be performed by Tenant
during the full term of this Lease (the "Security Deposit"). If Tenant defaults
with respect to any provision of this Lease during the term of this Lease and
such default continues beyond the applicable grace period, Landlord may use,
apply, or retain all or any part of the Security Deposit for the payment of Base
Rent or any other sum in default, for the payment of any other amount that
Landlord may spend or become obligated to spend by reason of Tenant's default,
or to compensate Landlord for any other loss, cost, or damage that Landlord may
suffer by reason of Tenant's default. If any portion of the Security Deposit is
so used or applied, Tenant shall, within five (5) days after written demand
therefor, deposit cash with Landlord in an amount sufficient to restore the
Security Deposit to its original amount. Landlord shall not be required to keep
the Security Deposit separate from its general funds and Tenant shall not be
entitled to interest on such deposit. Landlord shall refund the Security Deposit
to Tenant within 10 days after the expiration of the term of this Lease. If (a)
Tenant has reasonable grounds, valid as of a date not more than 30 days prior to
the date that the final full monthly Base Rent payment is due under this Lease,
to believe that the then Landlord is unlikely to be in a financial position to
return the Security Deposit during the required refund period (the then pendency
of bankruptcy proceedings with regard to such Landlord or any general partner
thereof being absolute and unrebuttable evidence of reasonable grounds for such
belief), and/or (b) the then Landlord is a successor to the initial Landlord
under this Lease and has failed to enter into a written agreement running to the
benefit of and enforceable by Tenant whereby the then Landlord unconditionally
assumes all of the Landlord's obligations under this Lease with respect to the
Security Deposit or an original copy of such agreement has not been delivered to
Tenant (provided, however, that the then Landlord may in the alternative provide
Tenant with an opinion of counsel reasonably satisfactory to Tenant that, under
California law then in effect, Tenant shall have the same rights with respect to
the then Landlord without such a written agreement that it would have had if
such a written agreement were executed and delivered to Tenant) and/or (c) if
Landlord is a lender who shall have acquired title to the Premises without
personal obligation to refund the Security Deposit to Tenant within the required
refund period, Tenant shall give notice of such fact(s) to Landlord on or before
the date 15 days prior to the date that the final full monthly Base Rent payment
is due under this Lease. If Landlord
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receives such notice and does not, prior to the date 5 days before the date that
the final full monthly Base Rent payment is due under this Lease, (i) if
subparagraph (a) above applies, provide Tenant with reasonable security for the
performance of Landlord's obligation to refund the Security Deposit and/or (ii)
if subparagraph (b) above applies, provide Tenant with the written agreement or
opinion described in such subparagraph (b) and/or (iii) if subparagraph (c)
above applies, provide to Tenant the lender-Landlord's written personal
commitment to Tenant to refund the Security Deposit during the required refund
period, Tenant may setoff such Security Deposit against the payment of Base Rent
and any other sums due Landlord under this Lease that are due on such payment
date or any subsequent date.
52. SIGNAGE. Tenant shall not place or permit on the exterior or
roof of the Premises or on the balance of the real property constituting the
Premises or on the balance of the Property any sign, advertisement,
illumination, projection, or similar thing (a "Sign"), unless (a) Landlord has
given its prior written consent thereto (which consent shall be given or
withheld in writing, shall not be unreasonably withheld and shall be deemed to
be not given if not given or withheld in writing within 10 days after a written
request for such consent has been received by Landlord from Tenant), and (b)
such Sign complies with applicable law. Subject to the foregoing, Tenant may
place a monument sign in front of the Premises, Tenant may place a directional
delivery sign at the delivery driveway shown on the attached EXHIBIT A, and may
place a sign or signs on the exterior of the Premises.
53. TENANT IMPROVEMENTS.
(a) Tenant shall construct the improvements to the Premises
described on the attached EXHIBIT C (collectively, the "Tenant Improvements").
Tenant shall promptly commence the work for Tenant Improvements and shall
diligently pursue such work to completion, as described in subparagraph (e)
below.
(b) Tenant shall submit to Landlord complete, finished drawings
and specifications (the "Plans") for the Tenant Improvements. The Plans shall
be subject to Landlord's approval (which approval shall be given or withheld in
writing, shall not be unreasonably withheld and shall be deemed to be not given
if not given or withheld in writing within 10 days after a written request for
such approval has been received by Landlord from Tenant). Within ten (10)
business days after its receipt of the Plans, Landlord shall notify Tenant of
its approval or disapproval of the Plans, and if Landlord disapproves the Plans,
the revisions that Landlord requires in order to obtain such approval. Tenant
and Tenant's architect or engineer shall meet with Landlord and its agents
within a reasonable period of time after any request for such meeting by
Landlord to answer questions or provide additional information with respect to
the Plans. As promptly as reasonably possible thereafter, Tenant shall submit
to Landlord modified Plans incorporating the revisions required by Landlord.
The modified Plans shall be subject to
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Landlord's approval (which approval shall be given or withheld in writing, shall
not be unreasonably withheld and shall be deemed to be not given if not given or
withheld in writing within 10 days after a written request for such approval has
been received by Landlord from Tenant). The final Plans and specifications
approved by Landlord are hereinafter referred to as the "Final Plans." If
appropriate, Tenant shall cause two sets of reproducible Final Plans, marked for
pricing and construction to be delivered to Landlord within 5 days after
Landlord's approval of the Final Plans. Tenant shall engage an architectural
firm, duly licensed in the State of California, for preparation of the Plans and
supervision of the construction of the Tenant Improvements. Such firm shall be
subject to Landlord's approval (which approval shall be given or withheld in
writing, shall not be unreasonably withheld and shall be deemed to be not given
if not given or withheld in writing within 10 days after a written request for
such approval has been received by Landlord from Tenant). Tenant shall not
commence any work in the Premises until Landlord has finally approved the Plans
(which approval shall be given or withheld in writing, shall not be unreasonably
withheld and shall be deemed to be not given if not given or withheld in writing
within 10 days after a written request for such approval has been received by
Landlord from Tenant).
(c) Tenant shall pay all the Tenant Improvement Costs (as
defined below) and, provided there are no events of default by Tenant, Landlord
will provide the Tenant Improvement Allowance specified in subparagraph (e)
below. Tenant Improvement Costs shall include, but not be limited to, the cost
of the work described on the attached EXHIBIT C to the extent included in the
Final Plans, and the following with respect to the Final Plans: hard costs of
construction (including builder's risk insurance and the Performance and Payment
Bonds hereinafter specified), permitting fees and the fees of Tenant's architect
and engineer, and of Tenant's construction manager, if any. Tenant Improvement
Costs shall not include any of Tenant's equipment or other personal property or
trade fixtures.
(d) Tenant shall employ a general contractor for the Tenant
Improvements duly licensed in the State of California and approved by Landlord
(which approval shall be given or withheld in writing, shall not be unreasonably
withheld and shall be deemed to be not given if not given or withheld in writing
within 10 days after a written request for such approval has been received by
Landlord from Tenant). Upon request by Landlord, Tenant shall deliver to
Landlord a copy of the construction contract entered into by Tenant and the
general contractor. Before any work commences, the general contractor shall
obtain and deliver to Landlord Performance and Payment Bonds in form and amount
approved by Landlord (which approval shall be given or withheld in writing,
shall not be unreasonably withheld and shall be deemed to be not given if not
given or withheld in writing within 10 days after a written request for such
approval has been received by Landlord from Tenant). Such Bonds shall name
Landlord as the
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obligee and shall be written by surety companies which have been approved by
Landlord (which approval shall be given or withheld in writing, shall not be
unreasonably withheld and shall be deemed to be not given if not given or
withheld in writing within 10 days after a written request for such approval has
been received by Landlord from Tenant) and are either on the United States
Department of the Treasury's list of sureties acceptable to the United States
Government or have at least a BB+ rating by Bests. The Tenant Improvements
shall be constructed in a good and workmanlike manner and shall comply with all
laws, codes and ordinances applicable to the Premises. Not less than five (5)
days prior to the date Tenant desires to commence the Tenant Improvements,
Tenant shall give written notice to Landlord setting forth or accompanied by all
of the following:
(i) A description and schedule for the work to be
performed;
(ii) The names and addresses of all contractors,
subcontractors and material suppliers who have then been engaged to construct or
supply the Tenant Improvements;
(iii) Copies of all licenses and permits which may be
required in connection with the Tenant Improvements and which can then be
obtained; and
(iv) Certificates of builder's risk insurance
reasonably satisfactory to Landlord.
As additional rent under this Lease, Tenant shall make, at its expense, any
repairs to the Premises and any corrections to the Tenant Improvements, the need
for which arise from the actions or omissions of anyone constructing the Tenant
Improvements. During the progress of the work to be done by Tenant, such work
shall be subject to inspection by representatives of Landlord who shall be
permitted access and the opportunity to inspect, at all reasonable times upon
reasonable advance notice, in compliance with any safety and work rules then
imposed at the Premises by Tenant or its contractors, but this provision shall
not in any way whatsoever create any obligation on Landlord to conduct any such
inspection.
(e) Upon completion of the Tenant Improvements in accordance
with the Final Plans and the requirements of the ADA, Landlord shall pay to
Tenant an amount (the "Tenant Improvement Allowance") equal to the sum of (1)
the lesser of the Tenant Improvement Costs or $600,000, plus (2) the ADA
Payment, upon receipt of all of the following: (i) unconditional lien waivers
from all contractors, subcontractors and suppliers of materials and equipment,
(ii) an affidavit executed by the general contractor certifying the cost of the
Tenant Improvements and stating that it has delivered to Landlord lien waivers
from all
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subcontractors and suppliers and that the contractor has paid all debts or
settled all claims for labor and materials in connection with the Tenant
Improvements, (iii) an affidavit executed by Tenant that it accepts and is
satisfied with the Tenant Improvements and that all contractors and suppliers in
connection with the Tenant Improvements have been paid, (iv) a certification of
completion executed by the Tenant's architect confirming that the Tenant
Improvements have been completed in accordance with the Final Plans and that, if
required, a Certificate of Occupancy (temporary or permanent) has been issued
with respect to the Premises by the local authority having jurisdiction thereof,
and (v) if required by Landlord, a complete set of "as-built" plans and
specifications for the Tenant Improvements. The Tenant Improvements shall be
deemed completed upon satisfaction of all of the foregoing. Tenant's obligation
to pay the rent under this Lease shall not be postponed due to delay of any
nature, however arising, in completion of the Tenant Improvements, except for
delays caused by Landlord's failure to perform its repair and maintenance
obligations under paragraphs 16 and 40 of this Lease, in which case the
Commencement Date shall, at Tenant's option to be exercised by written notice to
Landlord, be extended by the number of days of delay so caused by Landlord.
(f) Tenant agrees to expend at least $400,000 in excess of the
Tenant Improvement Allowance for the Tenant Improvements, including costs of
Tenant's internal space planners and internal environmental review.
54. OPTIONS TO EXTEND TERM. Tenant shall have two options
(collectively the "Options" and individually an "Option") to extend the term of
this Lease for two additional consecutive six (6) year periods, the first of
which shall commence on the expiration of the initial term of this Lease (the
"First Renewal Option") and the second of which shall commence six (6) years
thereafter (the "Second Renewal Option"), provided that:
(a) The First Renewal Option shall be exercised by written
notice of exercise delivered to Landlord no later than nine (9) months before
the expiration of the initial term of this Lease, and the Second Renewal Option
shall be exercised by written notice of exercise delivered to Landlord no later
than nine (9) months before the expiration of the term of the First Renewal
Option. If Tenant fails to so exercise the First Renewal Option, both of the
Options shall terminate. If Tenant so exercises the First Renewal Option but
fails to so exercise the Second Renewal Option, the Second Renewal Option shall
terminate;
(b) At the time each Option is exercised and at the commencement
of the term of each Option, this Lease must be in full force and effect and
Tenant must not then be in default under this Lease. The foregoing conditions
are for the benefit of and may be waived by Landlord; and
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(c) All of the terms, covenants and conditions of this Lease
shall remain in effect during the term of each Option except that (i) the Base
Rent commencing with the first day of the first month for each month of the
first thirty-six (36) months of the First Renewal Option shall be increased
based upon the percentage increase in the Consumer Price Index as such Index for
the 37th month of the initial term of this Lease bears to such Index for the
last month of the initial term; provided, however, that in no event shall the
Base Rent commencing with the first month of such term be more than 115% or less
than 109% of the Base Rent payable for the last month of the initial term of
this Lease; and (ii) commencing with the first day of the 37th month of the term
of the First Renewal Option, the Base Rent shall be increased based upon the
percentage increase in the Consumer Price Index as such Index for the 36th month
of such term bears to such Index for the last month of the initial term;
provided, however, that in no event shall the Base Rent commencing with the 37th
month of such term be more than 115% or less than 109% of the Base Rent payable
for the 36th month of the term of the First Renewal Option, and (iii) the Base
Rent for each month of the term of the Second Renewal Option shall be the Market
Rent for the Premises for the term of the Second Renewal Option (determined by
Appraisal if the parties cannot agree upon the Market Rent within 30 days after
Tenant's exercise of the Second Renewal Option); except that commencing with the
first day of the 37th month of the term of the Second Renewal Option, the Base
Rent shall be increased based upon the percentage increase in the Consumer Price
Index as such Index for the 36th month of such term bears to such Index for the
last month of the term of the First Renewal Option; provided, however, that in
no event shall the Base Rent commencing with the 37th month of such term be more
than 115% or less than 109% of the Base Rent payable for the 36th month of the
term of the Second Renewal Option.
55. EXPANSION SPACE. Rockwell presently occupies that portion of the
Property commonly known as 21605 Plummer Street (the "Rockwell Building") which
contains approximately 130,572 rentable square feet of space. Rockwell has the
right to park 410 cars in the Rockwell Area. The term of the lease agreement for
the Rockwell Building expires on June 30, 1997, but Rockwell has the option to
cancel on one-year's prior written notice. If Rockwell cancels its tenancy and
Landlord determines not to grant Rockwell rights to occupy the Rockwell Building
(or any portion thereof in excess of 105,000 square feet of rentable area) on
some basis, then, subject to the terms of this paragraph, Tenant shall have one
option (the "Expansion Option") to add to the Premises demised under this Lease,
the "Expansion Space" which shall be (i) the Rockwell Building, or (ii) a
portion thereof which shall consist of not less than 25,000 rentable square feet
and shall be configured (as mutually agreed upon by Landlord and Tenant in
writing) in such a manner as to meet Tenant's reasonable requirements and
applicable codes and any reasonable objections of Landlord set forth in written
notice to Tenant within ten (10) days after Landlord's receipt of Tenant's
Notice (as hereinafter defined), as follows:
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(a) Tenant agrees to accept the Expansion Space in its "as is"
condition on the Availability Date (hereinafter defined) except as in this
paragraph otherwise provided;
(b) Landlord shall give Tenant written notice ("Landlord's
Notice") of the date upon which the Expansion Space shall be available (the
"Availability Date") and of the location and size of the Expansion Space. Tenant
shall have one option to have the Expansion Space added to the Premises demised
under this Lease on the Availability Date upon all the terms, covenants and
conditions contained in this Lease except that (i) the Base Rent for the
Expansion Space for the balance of the term of this Lease shall be Market Rent
with an $8.00 per net rentable square foot improvement allowance and without
reduction for the cost of creating all demising walls and related improvements
necessary for the Expansion Space to function separately from the remainder of
the Rockwell Building, which demising walls and related improvements Tenant
shall cause to be constructed and the costs of which shall be paid one-half by
Tenant and one-half by Landlord (which improvement allowance and other Landlord
reimbursements shall be paid to Tenant in accordance with disbursing procedures
similar to those provided for in paragraph 53 of this Lease), (ii) Tenant shall
be permitted to take occupancy of the Expansion Space on the Availability Date
in order to construct improvements therein, subject to each and every provision
of this Lease except that Tenant shall not be obligated to pay Base Rent with
respect to the Expansion Space until the "Rent Start Date" (defined below), and
(iii) the Rent Start Date shall be the 180th day after the Availability Date or
the date Tenant substantially completes its improvements in and occupies the
Expansion Space for business purposes, whichever is the earlier;
(c) The Expansion Option shall be exercised, if at all, by
written notice ("Tenant's Notice") of exercise given to Landlord not later than
twenty (20) days after Tenant's receipt of the Landlord's Notice. If Tenant
fails to so exercise the Expansion Option it shall terminate;
(d) If Landlord and Tenant cannot agree upon the determination
of Market Rent on or before the date that Tenant is required to give Landlord
Tenant's Notice, and Tenant nonetheless elects to give Tenant's Notice, the
determination of Market Rent as to such Expansion Space will be submitted to
Appraisal in accordance with attached EXHIBIT D. If on the date Base Rent as to
such Expansion Space is scheduled to commence pursuant to this Lease the
Appraisal has not been completed, Tenant will pay Base Rent based on Landlord's
reasonable estimate of Market Rent. Upon determination of Market Rent by
Appraisal, Landlord will pay to Tenant or Tenant will pay to Landlord, as
appropriate, the amount equal to the overpayment or underpayment of Base Rent
from such commencement until the determination of Market Rent by Appraisal,
together with interest accrued thereon during such period at the Default
Interest Rate. Upon
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establishment of the Base Rent for the Expansion Space, the parties agree to
execute an appropriate amendment to this Lease to reflect, as of the
Availability Date (i) the increase in the net rentable area of the Premises,
(ii) the increase in the Base Rent, and (iii) the increased Tenant's
Proportionate Share;
(e) As conditions precedent to Tenant's right to the Expansion
Option, at the time the Expansion Option is exercised and on the Availability
Date, this Lease must be in full force and effect, Tenant must not then be in
default thereunder and Tenant's interest under this Lease must not have been
assigned by operation of law or otherwise (except pursuant to an assignment with
respect to which Landlord has agreed in this Lease to give its consent or as to
which Landlord's consent is not required under this Lease). The foregoing
conditions are for the benefit of and may be waived by Landlord; and
(f) Landlord shall not be liable to Tenant for any loss or
damage for any failure to deliver possession of the Expansion Space to Tenant by
reason of the holding over or retention of possession by a tenant or occupant of
the Expansion Space and no such failure shall impair the validity of this Lease
or extend its term. Landlord will, however, exert reasonable efforts (including
legal proceedings to the full extent permitted under applicable laws) to cause
the other tenant to deliver possession of the Expansion Space.
(g) Tenant shall have the right to receive additional parking
with respect to the Expansion Space, at no cost to Tenant, as provided in
paragraph 4 of this Lease.
56. RIGHTS OF FIRST OFFER. Tenant will have rights of first offer to
lease additional space in the Rockwell Building in accordance with the following
provisions:
(a) ANNUAL NOTICES. No earlier than August 1 and no later than
October 1 of each calendar year during the term, Landlord will notify Tenant in
writing ("Annual Notice") of any rentable space within the Rockwell Building
that Landlord does not intend to warehouse, use or occupy and that is then
unleased or that will become unleased during the following calendar year in the
absence of the exercise of a Superior Right (as defined below). The Annual
Notice will include the following:
(1) identification of the configurations of such space that
Landlord intends to use in marketing such space
"Configurations");
(2) the date on which each such Configuration that is then
leased will become unleased if no Superior Right (as defined
below) is exercised;
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(3) identification of the rights of other tenants in the
Rockwell Building to lease any such Configuration pursuant
to right of first offer, right of first refusal, renewal,
extension or expansion provisions in their leases ("Superior
Rights"), together with identification of the date on which
each such Superior Right terminates; and
(4) Landlord's reasonable determination of Market Rent as to
each Configuration.
Landlord will not be required to give an Annual Notice (or any Interim Notices
or Reconfiguration Notices, as provided below, as to the calendar year to be
covered by the Annual Notice) unless, on or before July 1 of the year in which
such Annual Notice is to be given, Tenant has notified Landlord in writing of
Tenant's request that Landlord do so.
(b) INTERIM NOTICES. If any rentable space within the Rockwell
Building that was not required to be included in the previous Annual Notice,
subject to the exercise of a Superior Right, becomes unleased during the
calendar year following the date that the previous Annual Notice was given to
Tenant, Landlord will notify Tenant in writing ("Interim Notice") of such fact
within 20 days after Landlord first has knowledge of such fact. The Interim
Notice will include the following:
(1) the Configurations for such space;
(2) the date on which each such Configuration that is then
leased will become unleased if no Superior Right is
exercised;
(3) identification of each Superior Right applicable to each
such Configuration and the date on which each such Superior
Right terminates; and
(4) Landlord's reasonable determination of Market Rent as to
each Configuration.
(c) RECONFIGURATION NOTICES. If Tenant has failed to exercise
its rights of first offer with respect to a particular Configuration identified
in an Annual Notice, as provided in this paragraph, and if Landlord subsequently
reconfigures such Configuration so that the area of such Configuration increases
or decreases by 20% or more, Landlord will, prior to such reconfiguration,
notify Tenant of such reconfiguration ("Reconfiguration Notice"). The
Reconfiguration Notice will include the following:
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(1) the new Configurations resulting from such reconfiguration;
(2) the date on which each such new Configuration that is then
leased will become unleased if no Superior Right is
exercised;
(3) identification of each Superior Right applicable to each
such new Configuration and the date on which each such
Superior Right terminates; and
(4) Landlord's reasonable determination of Market Rent as to
each such new Configuration.
(d) TENANT'S ELECTION TO LEASE. Tenant may elect to lease all
(and not part) of any Configuration set forth in an Annual
Notice, an Interim Notice or a Reconfiguration Notice as
follows:
(1) Tenant's election to lease such Configuration must be made,
if at all, by written notice to Landlord ("Election Notice")
not later than (A) the November 1 following an Annual Notice
and (B) 15 days after an Interim Notice or Reconfiguration
Notice is given to Tenant. Tenant will be deemed to have
elected not to lease such Configuration if the Election
Notice is not given to Landlord within the applicable
response period.
(2) Tenant must have first elected to lease all Configurations
that are then unleased before Tenant may elect to lease any
Configurations that are then leased.
(3) Tenant may not elect to lease any space under this paragraph
during the last two years of the initial term of this Lease
or any Extended Term, unless Tenant has then exercised its
next available option to extend the term of this Lease.
(e) SUPERIOR RIGHTS. Any election by Tenant to lease a
Configuration will be subject to the rights of other
tenants having applicable Superior Rights as identified
in the Annual Notice, Interim Notice or Reconfiguration
Notice.
(f) COMMENCEMENT OF LEASE REGARDING CONFIGURATION. A
Configuration will become a part of the Premises, upon the
same terms and conditions as are provided in this Lease
(except as expressly modified in this paragraph), upon
the later of (1) the date that all holders of Superior
Rights applicable to such Configuration have relinquished
their rights or the date all of such Superior Rights have
terminated in accordance with their terms, whichever is
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earlier, or (2) the date such Configuration is delivered to Tenant, free from
rights of others.
(g) RENT. Base Rent for any space added to the Premises under this
paragraph will be equal to the Market Rent, determined as of the date of the
commencement of the term of this Lease with respect to such space. If Landlord
and Tenant cannot agree upon the determination of Market Rent on or before the
date that Tenant is required to give Landlord an Election Notice, and Tenant
nonetheless elects to lease such space, the determination of Market Rent as to
such space will be submitted to Appraisal in accordance with attached EXHIBIT D.
If on the date Base Rent as to such space is scheduled to commence pursuant to
this Lease the Appraisal has not been completed, Tenant will pay Base Rent based
on Landlord's reasonable estimate of Market Rent. Upon determination of Market
Rent by Appraisal, Landlord will pay to Tenant or Tenant will pay to Landlord,
as appropriate, the amount equal to the overpayment or underpayment of Base Rent
from such commencement until the determination of Market Rent by Appraisal,
together with interest accrued thereon during such period at the Default
Interest Rate.
(h) CONDITION OF SPACE. Any space leased by Tenant under this
paragraph will be delivered to Tenant in its "as is" condition as of the
commencement of the term of this Lease as applied to such space.
(i) AMENDMENT TO LEASE AND MEMORANDUM OF LEASE. Within ten (10) days
after request by Landlord or Tenant, the parties shall execute an amendment to
this Lease and to any Memorandum of Lease adding to the Premises any space which
Tenant has elected to lease pursuant to this paragraph, as of the commencement
date specified in this paragraph with respect to such space, and upon the terms
and conditions of this Lease.
(j) EFFECT OF DEFAULT. If any default exists by Tenant under this
Lease that has not been cured or is being cured by Tenant within the applicable
grace period at the time the Election Notice is given or at the commencement of
the term of this Lease as to the space in question, Tenant will have no right to
exercise its option as to the applicable space and/or to lease such space.
The time limitations with respect to Tenant's election to lease space
under this paragraph set forth in subparagraph (d) above and the condition set
forth in subparagraph (j) above are solely for the benefit of Landlord, and
Landlord may at its option waive any such limitation or condition.
57. ADDITIONAL ENVIRONMENTAL ASSESSMENTS; ASBESTOS REMOVAL. Landlord
will promptly obtain and provide to Tenant, in sufficient time to allow Tenant
to prepare for construction of the Tenant Improvements, the additional
environmental investigation and assessment work requested by Dana Wagner of
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Bruce A. Liesch Associates, Inc. pursuant to a letter to Brad Childs (sic) dated
December 1, 1992 and a letter to Che Hsien Chang dated November 20, 1992, and
Landlord shall complete such governmental environmental reporting as shall be
required by applicable laws. Tenant will pay Landlord 50% of the reasonable cost
of such work, within 10 days of written demand. Landlord agrees that Landlord
will, at Landlord's sole expense, remove, encapsulate or otherwise address any
asbestos situated in any space leased by Tenant pursuant to this Lease when such
space is first made available by Landlord to Tenant in accordance with
applicable laws and in such a time frame (to the extent reasonably possible) as
not to interfere with the timely completion of improvements to be constructed in
such space by Tenant.
58. ROOF ANTENNAS. Subject to the terms of paragraph 31 of this
Lease, Tenant may install on the roof of the Premises antenna and satellite
dishes for use in connection with its business, so long as such installation
does not interfere with the use and operation of (a) any television, radio,
communications or other equipment in any adjoining structure, or (b) any
electronic control system or elevators in any adjoining structure, or (c) any
other transmitting, receiving or master TV antenna on any adjoining structure.
59. CONTINGENCIES. Tenant's obligations under this Lease shall be
contingent upon the following occurring or being satisfied on or before the
dates set forth below:
(a) Tenant shall receive the Letter of Credit on or before the
date 15 business days after the date of this Lease.
(b) Tenant shall receive, on or before the date 25 business days
after the date of this Lease, Subordination, Non-disturbance and Attornment
Agreements, in the form attached to this Lease as Exhibit F, executed by each
holder of any deed of trust that has priority over this Lease (which agreements
Landlord agrees to use its best efforts to provide to Tenant on or before the
date 25 business days after the date of this Lease and which agreements Landlord
and Tenant agree to execute).
Tenant may waive such contingencies by written notice given to
Landlord on or before the applicable contingency date. Tenant's failure to so
waive any such contingency on or before the applicable contingency date shall be
deemed to be an exercise of Tenant's right to terminate this Agreement based
upon the failure of such contingency.
60. MEMORANDUM OF LEASE; RECORDABLE TERMINATION. Either party will,
upon the written request of the other party, execute a short form lease
("Memorandum of Lease") regarding this Lease, in a form suitable for recording
in the Los Angeles County Records. Such Memorandum of Lease will be dated as of
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the date of this Lease and will disclose the parties; the term of this Lease,
descriptions of the Premises, Tenant's extension and expansion rights and rights
of first refusal and such other terms and conditions as the parties agree upon.
The party requesting the execution of such Memorandum of Lease will bear all
costs of the Memorandum of Lease, including any recording fees. Upon the
determination of the Commencement Date and the written request of either party,
the parties will execute an amendment to the Memorandum of Lease setting forth
the Commencement Date, with the party requesting the execution of such amendment
bearing all costs of the amendment, including any recording fees. Upon the
execution of a pertinent amendment to this Lease and the written request of
either party, the parties will execute a corresponding amendment to the
Memorandum of Lease, with the party requesting the execution of such amendment
bearing all costs of the amendment, including any recording fees. Either party
will, following any termination of this Lease and upon the written request of
the other party, execute a document setting forth the date of such termination,
in a form suitable for recording in the Los Angeles County Records. Failure of
a party to execute such a document will not affect the termination, and in such
event the party requesting the document may execute and file an affidavit
setting forth the date of termination. The party requesting the execution of
such document will bear all costs thereof, including any recording fees.
61. MISCELLANEOUS. This Lease cannot be changed orally, but only by
agreement in writing signed by the party against whom, or against whose
successors and assigns, enforcement of the change is sought. The voluntary or
other surrender of this Lease by Tenant, or a mutual cancellation thereof, shall
not work a merger as to any existing subtenancies and shall, at the option of
Landlord, terminate any and all such existing subtenancies or, at Landlord 's
option, operate as an assignment to it of any and all such subtenancies. The
words "Landlord" and "Tenant" as used herein shall include the plural as well as
the singular. If there is more than one tenant, the obligations hereunder
imposed upon the Tenant shall be joint and several. Time is of the essence of
this Lease and each and all of its provisions. This Lease shall be construed
and enforced in accordance with the laws of the State of California. The term
"Default Interest Rate" shall mean an annual rate equal to the reference or
prime rate of Bank of America ("Reference Rate"), or the successor to such rate,
plus 2 percentage points per annum, or the maximum interest rate permitted by
law, whichever is less. Any amount due from Tenant, if not paid when first due,
shall bear interest at the Default Interest Rate from the date due until paid.
If any covenant, agreement, or condition of this Lease or the application
thereof to any person, firm, corporation, or circumstance is or becomes to any
extent invalid or unenforceable, the remainder of this Lease, or the application
of such covenant, agreement, or condition to persons, firms, corporations, or
circumstances other than.those as to which it is invalid or unenforceable, shall
not be affected thereby, and in lieu of each clause or provision of this Lease
that is illegal, invalid, or unenforceable, there shall be added as a part of
this Lease a clause or provision as
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similar in terms to such clause or provision as is possible and as may be legal,
valid, and enforceable. If any excavation or other building operation shall be
made, or is about to be made, upon any adjoining property or streets, upon the
request of Landlord, Tenant shall permit the owner or lessee of such adjoining
property and their respective representatives to enter the Premises and shore
the foundations and walls thereof, and to do any other act or thing reasonably
necessary, in Landlord's opinion, for the safety or preservation of the
Premises. Landlord's acceptance of a partial rent payment shall not constitute
a waiver of any rights of Tenant or Landlord, including, without limitation, any
right Landlord may have to recover possession of the Premises, in unlawful
detainer, or otherwise. The parties agree that, except as in this Lease
otherwise provided, and subject to the provisions of paragraph 35 of this Lease,
the covenants and agreements herein contained shall bind and inure to the
benefit of the successors and assigns of the parties.
Exhibits A through F are attached hereto and become part of
this Lease.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
the day and year first above written.
LANDLORD:
GREENVILLE DALLAS DELAWARE, INC., a Delaware corporation
By /s/ S. Bradford Child
------------------------------------------------------
Its
--------------------------------------------------
And By
---------------------------------------------------
Its
-------------------------------------------------
TENANT:
ADC TELECOMMUNICATIONS, INC., a Minnesota corporation
By /s/ LeRoy Morgan
------------------------------------------------------
Its Vice President
------------------------------------------------
FIBERMUX CORPORATION, a California corporation
By /s/ Steve Kim
------------------------------------------------------
Steve Y. Kim, President
And By /s/ Frederic T. Boyer
----------------------------------------------
Frederic T. Boyer, Chief Financial Officer
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<PAGE>
EXHIBIT A
INSIDE OF SHADED AREA = "ROCKWELL AREA"
410 SPACES
BALANCE IS "FIBERMUX/AREA"
<PAGE>
EXHIBIT B
LEGAL DESCRIPTION
Parcels B and C and the Southerly 111.5 of D of Parcel Map L.A. No. 5336, in the
City of Los Angeles, in the County of Los Angeles, State of California, as per
map filed in Book 168 Pages 61 and 62 of Parcel Maps, in the Office of the
County Recorder of Los Angeles, State of California.
Except 50 percent of all oil, gas, mineral, asphaltum and other hydrocarbon
substances underlying said property or that may be produced thereon or
therefrom, but without the right of entry above the depth of 500 feet below the
surface of said land, as reserved by Frank S. Lombardi, et al. in Deed recorded
March 1, 1956 in Book 50473 Page 258, Official Records.
<PAGE>
OFFICE -- ASSEMBLY/WAREHOUSE
FIBERMUX BLOCK PLAN
FIRST FLOOR
21415 PLUMMER ST CHATSWORTH, CA
12/7/92
<PAGE>
FIBERMUX BLOCK PLAN
SECOND FLOOR
21415 PLUMMER ST CHATSWORTH, CA
12/7/92
<PAGE>
EXHIBIT C
December 9, 1992
VER. B
SCOPE STATEMENT
FIBERMUX PROJECT
21415 PLUMMER STREET
OFFICE
ARCHITECTURAL
A. Reuse existing walls to extent possible.
B. All walls to receive paint (some graphics may be used). VP and
President's offices to receive grade 1 vinyl. Restrooms to receive grade
2 vinyl.
C. Reuse existing ceiling tile and grid replacing damaged tile as required.
D. Reuse existing doors and frames. Replace existing hardware with Schlage
L series. Any new doors and frames to match existing. A master key
system for the building is desirable.
E. Office areas will be carpeted reusing existing to the extent possible.
All new carpet will be broadloom. Reused carpet will be thoroughly
cleaned before occupancy.
F. Provide alternate cost to install dissipative tile, Armstrong Excelon
SDT, in the lab areas.
G. Major corridor walls to receive grade 2 vinyl.
H. Reuse existing window treatments. Replace missing and repair
nonfunctional window treatment items.
I. All construction will be in accordance with all laws, codes, and
regulations including ADA.
ALTERNATES
A. Provide cost to upgrade ceiling tile to USG Glacier 2'x 2' with shadow
reveal as an alternate.
B. Provide cost to upgrade all doors to solid core oak doors.
C. Provide alternative cost for multispec (Zolatone) paint on major corridor
walls.
<PAGE>
E. Director, VP offices and conference room walls will extend to the deck
and receive sound batt insulation. All other walls shall extend to the
dropped ceiling unless otherwise required by code.
ELECTRICAL
A. Reuse existing light fixtures. Provide Lithonia Optimax 2'x 4' fixtures
in the CADD drafting area.
B. Convenience power and communications wiring to be supplied to panel
workstations through power poles. Three duplex outlets and one
communications outlet box to be provided in each private office.
Communication outlets will be piped in the wall to the plenum space.
C. Tenant has a LAN that will require wiring.
D. All communication and computer wiring to be performed by the
communication contractor.
E. Re configure the emergency lighting to support the new room layout.
F. General Contractor will remove all workstation communication cabling.
The house and entrance cabling will remain.
ALTERNATES
A. Provide cost to upgrade light fixtures to Lithonia Optimax in the open
office areas as an alternate. Recessed can fixtures will be utilized
along one long wall of each room with the Optimax fixtures to eliminate
the "cave" effect.
B. Develop alternate cost to add Leviton occupancy sensing switches to all
private offices and conference rooms.
MECHANICAL
A. HVAC system to be re configured as necessary to provide comfort to new
room layout. Existing HVAC heat pumps will be reused with new
distribution provided. Any new diffusers to match existing. HVAC system
to be tested and balanced before occupancy.
B. Provide additional HVAC capacity as required to meet comfort
requirements.
2
<PAGE>
C. Review the possibility of moving the air handlers (one or more on the
lower floor) to improve the layout and flow of the assembly process.
Develop a cost alternative associated with the scheme along with detailed
drawings.
FURNISHINGS
A. Tenant will provide office furniture and all labor and equipment to move
furniture and furnishings to the building.
B. Contractor will provide electricians to make connections to the furniture
panels during the move.
C. Tenant will provide A/V equipment (except screens) and white boards.
ALTERNATES
A. Provide a recessed aluminum framed bulletin board with sliding, lockable
glass doors (4'x 6') next to the lunch room entrance.
3
<PAGE>
LUNCH ROOM
ARCHITECTURAL
A. Walls will receive grade 2 vinyl. More than one type of vinyl
incorporating graphics will likely be used.
B. Floors will be carpeted except in vending and serving areas which will be
VCT tile.
C. Casework in the lunch room will be new. Provide pigeonhole unit for bag
lunches.
ALTERNATES
A. Provide alternate price for ceramic tile in place of VCT in vending and
serving areas.
ELECTRICAL
A. Provide necessary power and water to vending machines. Estimate 6
vending machines at 20A each plus two additional 20A outlets for
microwaves. The coffee machine will require a 3/8" water line.
B. Provide utility connections required for future soup and salad bar
including drain (note: the drain could be handled with an integral sump
and pump in the salad bar).
B. Lighting will be a combination of recessed cans and accent lighting.
MECHANICAL
A. Provide adequate ventilation including air changes in lunch room. Note
there is a concern regarding food odors in the eating areas.
ALTERNATES
A. Provide the cost to add activated charcoal filtration to the lunch room
air handlers.
FURNISHINGS
A. Tenant will provide new furniture for the lunch room.
4
<PAGE>
TRAINING CENTER/CONFERENCE ROOMS/DEMO ROOM/BOARD ROOM
ARCHITECTURAL
A. Wall covering to be grade 2 vinyl.
B. Doors to have sound gaskets and threshold seals.
C. Each room will have an AV screen.
D. Provide blocking to support white boards.
E. Provide tack strips (2 walls) in the Training Room.
F. One conference room will be configured to support video conferencing and
will require acoustic panels on all the walls.
ALTERNATES
A. Provide cost to extend all drywall partitions to the deck and receive
sound batt insulation.
B. Provide alternate cost for 2'x 2' USG Glacier tile with shadow reveal
edge and foil backing.
ELECTRICAL
A. Lighting must support A/V presentations as well as good general lighting.
Must be able to dim lighting or provide various lighting levels through
light types.
B. Provide wall mounted raceways along the two longest walls to furnish
power and communication connection in the Training Room.
C. Provide five boxes piped to the plenum in one conference room to support
video teleconferencing.
D. Each conference room will have one communication box piped to the plenum
to provide network connection.
MECHANICAL
A. Separate HVAC control for these spaces to be provided.
B. HVAC to be sized to provide comfort at maximum room occupancy and
equipment load (e.g. computer training).
5
<PAGE>
COMPUTER ROOM
ARCHITECTURAL
A. Walls will extend to the deck
B. Install 2' x 4' vinyl coated ceiling tile.
C. Floor will receive dissipative VCT tile.
D. This room is a secured area and will minimally require a secure lock
(e.g. Medico) or a card reader station if such a system is installed by
the Tenant.
E. The existing computer room will be relocated.
ALTERNATES
A. Provide cost for access flooring including ramp and railing in one-half
of the room.
B. Provide cost of viewing window in hallway wall (4' x 6') if allowable by
code.
ELECTRICAL
A. Reuse existing lighting, if possible.
B. Power requirements will be identified on separate attached list.
C. Provide EPO switch at the door for the computer equipment as required by
code.
MECHANICAL
A. Room shall have separate HVAC control including humidity control. Reuse
existing equipment, if possible.
ALTERNATES
A. Provide a separate zone pre-action sprinkler system coordinated with the
EPO system.
6
<PAGE>
ASSEMBLY AREA
ARCHITECTURAL
A. All walls to receive paint and possibly graphics.
B. Floor to be VCT tile. Floor to receive static dissipative wax before
occupancy.
C. Reuse existing ceiling tile and lighting.
D. Warehouse floors will be sealed with gray urethane.
E. All warehouse walls to receive paint.
F. Provide capability to load/unload trucks at the grade level doors. This
may require a lift which might be recessed into the floor.
G. Provide a strip curtain enclosure for the water wash machine. Note: a
frame to support the curtain will have to be fabricated.
H. Provide a curb around the water wash machine (suggest a painted flange
curb, gasketed and bolted to the floor).
I. Fencing could be used to secure the stock areas.
J. Provide the capability to handle and properly dispose of trash. Design
must comply with existing laws and regulations.
ALTERNATES
A. Provide alternate cost to remove dropped ceiling and provide lighting
using fluorescent industrial fixtures. This alternate would include
using spiral duct for HVAC which would be painted. Exposed ceiling would
be reviewed for finish.
B. Provide the cost for corner protectors and wall protection on walls in
the high traffic areas of the warehouse and assembly areas.
ELECTRICAL
A. Provide convenience power to benches via drop cords. See the layout for
locations.
B. Electrical power and utility connections for assembly equipment are
provided in the attached equipment list.
7
<PAGE>
MECHANICAL
A. Provide a compressed air distribution system. Air compression system
will include a compressor, dryer and coalescing filter furnished by the
Tenant.
B. Recommendations for compressed air system are attached.
C. Provide vacuum system piping from the vacuum pump (by Tenant) to required
equipment (see equipment schedule).
8
<PAGE>
OTHER
FIRE PROTECTION
A. Revise the sprinkler system to accommodate the new room layout and meet
code and insurance requirements.
B. Revise the fire alarm system as required to provide the required pull
stations and alarm coverage for all areas of the building.
SECURITY
A. A card access security system will be reviewed for incorporation. Such a
system will include card readers at primary entrances, electric strikes
in those entrance doors and release switches in panic hardware.
B. All door locks will be organized to a building master system.
LIFE SAFETY
A. Provide required fire extinguishers.
ALTERNATES
A. Provide recessed fire extinguisher and first aid cabinets.
PAGING
A. Provide a paging system for the assembly and warehouse areas.
PLUMBING
A. All existing restroom and drinking fountain fixtures to remain.
B. See lunch room and assembly area equipment lists for other plumbing
requirements.
C. Provide an eyewash and emergency shower near the water wash machine.
9
<PAGE>
EXHIBIT D
APPRAISAL PROCEDURES
The parties to this Lease will initially attempt to agree upon the
Market Rent. If they have been unable to so agree within the period that they
are required to agree as to such matter under the Lease, then either party may
request by written notice to the other party ("Appraisal Request") that the
matter be determined by an appraisal board consisting of three appraisers who
are members of the Appraisers Institute (or a successor or similar organization,
if such organization no longer exists) and have at least five (5) years'
experience appraising commercial real estate in the Chatsworth, California area.
One appraiser will be appointed by each party, and each such appraiser will have
no material financial or other business interest in common with the party
selecting such appraiser. If a party fails to appoint an appraiser and notify
the other party of such appointment within 30 days after the Appraisal Request
is made, then the appraiser that was appointed by such other party within such
30 day period will be the sole appraiser. If two appraisers are properly
appointed and such first two appraisers are unable to agree on a third appraiser
within thirty (30) days after the appointment of the second appraiser, then such
third appraiser will be appointed by the presiding judge of the Los Angeles
County Superior Court, or by any person to whom such presiding judge formally
delegates the matter, or, if such methods of appointment fail, by the American
Arbitration Association.
The parties will submit a copy of this Lease to the sole appraiser or
the three appraisers, as the case may be. If the appraisal is conducted by a
sole appraiser, such sole appraiser will render to Landlord and Tenant his or
her determination of the Market Rent applicable during the period in question to
the parties by the 60th day after the Appraisal Request was made. If the
appraisal is conducted by three appraisers, each appraiser will submit his or
her determination(s) of the Market Rent applicable during the period in question
in a sealed envelope by the 30th day following appointment of the last
appraiser, and any determinations not submitted by such time shall be
disregarded. In such cases, the parties will meet on such 30th day (or if it is
not a business day, on the first business day thereafter) at 11:00 a.m. at the
office of Landlord, or such other place as the parties may agree, and
simultaneously deliver the determinations. If the determinations of at least
two of the appraisers are identical in amount, such amount will be deemed the
decision of the appraisers. If the determination of the three appraisers are
different in amount, the decision as to the Market Rent will be independently
determined as follows:
(a) If neither the highest nor lowest determination differs from
the middle determination by more than 15% of such middle
determination, then the decision will be deemed to be the average of
the three determinations; and
<PAGE>
(b) If clause (a) does not apply, then the decision will be
deemed to be the average of the middle determination and the
determination closest in amount to such middle determination.
The decision of the appraisers, determined as above set forth, will be
final and non-appealable. The fees and expenses of the appraiser or appraisers
will be shared equally by Landlord and Tenant.
During the period of time that any appraisal is pending under this
Lease, Tenant shall pay Base Rent at the rate that was last in effect under the
Lease and the appropriate retroactive adjustment shall be made between the
parties within 10 days after the appraisers have made their determination.
<PAGE>
EXHIBIT E
[Issuer's Letterhead]
IRREVOCABLE STANDBY LETTER OF CREDIT
To Beneficiaries:
ADC Telecommunications, Inc. Letter of Credit No.
__________________________________ Issue Date:_______________, 199_
__________________________________
Fibermux Corporation
__________________________________
__________________________________
Gentlemen:
For the account of GREENVILLE DALLAS DELAWARE, INC. ("Customer"), with
an address at 255 Shoreline Drive, Ste. 600, Redwood City, California 94065, THE
DEVELOPMENT BANK OF SINGAPORE, LTD. ("Issuer") hereby establishes in your favor
as "Beneficiary" this IRREVOCABLE STANDBY LETTER OF CREDIT (the "Standby
Letter"), available for payment in the manner and on the terms following:
1. This Standby Letter authorizes Beneficiary to draw one or more
drafts upon Issuer, at sight, in the full amount then due and payable to
Beneficiary after Customer's default under the terms of paragraph 23 of that
certain Lease dated as of ______________, 1992, between Greenville Dallas
Delaware, Inc., as Landlord, and ADC Telecommunications, Inc. and Fibermux
Corporation, jointly as Tenant (the "Lease").
2. Beneficiary's Draft(s) must:
(a) not exceed, in the aggregate,_______________Dollars
(US$___________) (the "Drawing Amount");
(b) not be dated later than the Expiry Date specified in
paragraph 6 of this Standby Letter;
(c) quote upon its face, "Drawn under Irrevocable Standby Letter
of Credit No.________________, dated_____________,199_, and
issued by THE DEVELOPMENT BANK OF SINGAPORE, LTD. (NEW YORK
AGENCY), [insert address] ; and
-------------------------
<PAGE>
(d) be duly completed and signed in the form of EXHIBIT SL.1
attached to this Standby Letter and incorporated by
reference as though repeated here verbatim.
3. This Standby Letter has the sole purpose of making payment
available against the monetary sum due and owing from Customer to Beneficiary
after Customer's default under paragraph 23 of the Lease, all as certified by
Beneficiary in the Request for Payment (described under paragraph (4) of this
Standby Letter).
4. To receive payment under this Standby Letter, Beneficiary must
present the following documents (the "Required Documents"):
(a) Beneficiary's original Draft as detailed in paragraph 2 of
this Standby Letter;
(b) the original of a Request for Payment Under Irrevocable
Standby Letter of Credit (the "Request For Payment") written
on Beneficiary's letterhead, duly completed and signed by
persons who certify their authority to bind Beneficiary, all
in the form of EXHIBIT SL.2 attached to this Standby Letter
and incorporated by reference as though repeated here
verbatim; and
(c) the original of this Standby Letter.
5. Reference in this Standby Letter to the Lease Agreement or to any
other aspect of the underlying bargain between Beneficiary and Customer is for
identification purpose only. No intent exists to incorporate into this Standby
Letter any term of the Lease or any aspect of such underlying bargain.
6. This Standby Letter shall stay in force until 11.59 p.m., New
York, New York time on the ______ day of __________________, 199__ (as may be
extended from time to time, the "Expiry Date") and shall be deemed automatically
extended without amendment for additional periods of not less than one (1) year
from the then effective Expiry Date until __________________, 199__ , unless not
later than sixty (60) days prior to the then effective Expiry Date Issuer shall
present to Beneficiary a notice that this Standby Letter will not be renewed or
that this Standby Letter will be renewed for an additional period of less than
one (1) year.
7. Beneficiary must present all the Required Documents on or before
the Expiry Date to Issuer at Issuer's letter of credit department, [Insert
address]. The word "present" (or "presentation" for purposes of this Standby
Letter) means actual receipt through registered mail, through a professional
overnight courier service, or through personal hand delivery.
<PAGE>
8. The right to draw under this Standby Letter may not be assigned
and shall not be transferable.
9. The amount available under this Standby Letter should be
irrevocably decreased from time to time by the amount of each Draft honored by
Issuer. In the spaces provided below in this paragraph, Issuer shall note the
amount of each such Draft so honored, the date it paid such Draft and the
reduced amount available under this Standby Letter as consequence of each such
payment.
Reduced amount of this
Draft Amount Date Paid Standby Letter
--------------- -------------------- ------------------------
--------------- -------------------- ------------------------
--------------- -------------------- ------------------------
--------------- -------------------- ------------------------
--------------- -------------------- ------------------------
--------------- -------------------- ------------------------
10. This Standby Letter shall be governed by the Uniform Customs and
Practice for Documentary Credits (1983 Revision) Publication No. 400 of the
International Chamber of Commerce (the "Uniform "Customs") and, as to matters
not governed by the Uniform Customs, the laws of the State of New York.
11. Issuer engages with Beneficiary that each Draft and other
Required Documents related thereto shall be duly honored upon presentation to
the Issuer of such Required Documents if drawn and presented in strict
compliance with the terms of this Standby Letter.
THE DEVELOPMENT BANK OF SINGAPORE,
LTD. (NEW YORK AGENCY)
By________________________________
Its__________________________
PLEASE EXAMINE THIS STANDBY LETTER AT ONCE. IF
YOU FEEL UNABLE TO MEET ANY OF ITS REQUIREMENTS,
PLEASE CONTACT CUSTOMER IMMEDIATELY TO SEE IF THE
STANDBY LETTER CAN BE AMENDED. OTHERWISE, YOU RISK
LOSING PAYMENT UNDER THIS STANDBY LETTER FOR
FAILURE TO COMPLY STRICTLY WITH ITS TERMS AS
WRITTEN.
<PAGE>
EXHIBIT SL.1
DRAFT
Drawn under Irrevocable Standby Letter or Credit No.________, dated
_____________________________, 199__, and issued by THE DEVELOPMENT BANK OF
SINGAPORE. LTD. (NEW YORK AGENCY)
$______________________ ___________________ __, _____
On sight, pay_______________________________________________DOLLARS
(US$________________________) by a single check payable to the following two (2)
payees: ADC Telecommunications, Inc. and Fibermux Corporation.
TO: The Development Bank of Singapore (New York Agency)
[Address of Bank]
Attn: Letter of Credit Department
ADC TELECOMMUNICATIONS, INC.
By_________________________________
Title_________________________
FIBERMUX CORPORATION
By_________________________________
Title_________________________
<PAGE>
EXHIBIT SL.2
[Beneficiary's Letterhead]
REQUEST FOR PAYMENT
UNDER
IRREVOCABLE STANDBY LETTER OF CREDIT
[Date]
Letter of Credit No._____________
Issue Date:_______________, 19___
To Issuer:
The Development Bank of Singapore, Ltd. (New York Agency)
[Address of Bank]
Attn: Letter of Credit Department
Gentlemen:
The undersigned are, collectively, the "Beneficiary" of the captioned
IRREVOCABLE STANDBY LETTER OF CREDIT (the "Standby Letter"). As the "Issuer,"
you established the Standby Letter in Beneficiary's favor for the account of the
"Customer," GREENVILLE DALLAS DELAWARE, INC. Beneficiary hereby draws on the
Standby Letter in the amount of________________________________________________
Dollars (US$________________________).
In support of this drawing, Beneficiary hereby certifies and warrants:
1. The Standby Letter was issued to back up certain of Customer's
obligations under a lease (the "Lease"), as more particularly described in the
Standby Letter.
2. The Customer has defaulted on one or both of the following obligations
(Beneficiary must so indicate below) imposed upon Customer by the Lease:
(a) Customer has failed to keep the Standby Letter in effect for the
period of time required by paragraph 23 of the Lease [yes ____];
or
(b) Customer has defaulted in the performance of Landlord's
Environmental Indemnity in a manner and as defined in paragraph
23 of the Lease [yes ____].
Such default(s) have not only occurred but are continuing without cure.
Beneficiary has not transferred or otherwise assigned, in whole or in part, its
rights under the Lease.
<PAGE>
3. This Request For Payment is attached to a Draft for the sum of
________________________________________________________________Dollars
(US$________________). That Draft, this Request For Payment and the original
copy of the Standby Letter constitute the "Required Documents" referred to in
paragraph (4) in the Standby Letter.
4. If paragraph 2 (b) of this Request for Payment is applicable, under
the terms of the Lease the sum of such Draft is presently due and payable from
Customer to Beneficiary, but Customer has wrongfully failed to pay such sum.
Beneficiary served upon Customer and other parties all demands, notices, and the
like as required (if any) under the Lease.
5. The terms of the Lease presently entitle Beneficiary to draw upon the
Standby Letter for the full sum of the Draft to which this Request For Payment
is attached.
6. Each individual who has signed this Request for Payment and
accompanying Draft:
(i) is an officer of the Beneficiary for which such individual
signed, and
(ii) has authority to bind such Beneficiary in all matters
concerning the Standby Letter.
IN WITNESS WHEREOF, the undersigned Beneficiary executed, attested
or otherwise officially sealed (as applicable), delivered, and presented this
Request (for Payment, attached to the undersigned Beneficiary's Draft, this
day of _____________________________, 19__.
ADC TELECOMMUNICATIONS, INC.
By:___________________________________________________
Title:___________________________________________
FIBERMUX CORPORATION
By:___________________________________________________
Title:___________________________________________
<PAGE>
EXHIBIT F
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
THIS AGREEMENT, dated as of ___________________________ , 199__, among
GOVERNMENT OF SINGAPORE INVESTMENT CORPORATION (REALTY) PTE. LTD., a Singapore
corporation ("Beneficiary"), GREENVILLE DALLAS DELAWARE, INC., a Delaware
corporation ("Landlord"), ADC TELECOMMUNICATIONS, INC., a Minnesota corporation,
and FIBERMUX CORPORATION, a California corporation (collectively, "Tenant").
WITNESSETH:
WHEREAS, Beneficiary is the beneficiary under that certain deed of
trust dated as of October 3, 1986, recorded January 26, 1988 as Instrument No.
88-109752, Official Records, Office of the County Recorder of Los Angeles, State
of California (said deed of trust, as it may be amended, increased, renewed,
modified, consolidated, replaced, combined, substituted, severed, split, spread
or extended, being hereinafter referred to as the "Deed of Trust"), between
Beneficiary and the trustor described therein (predecessor in interest to the
Landlord described above), which encumbers the land and the buildings located at
21415 and 21605 Plummer Street, Los Angeles, California, and more particularly
described therein (the "Property").
WHEREAS, Tenant and Landlord have entered into a certain agreement
of lease dated December 18, 1992 (such Lease, as it may be hereafter amended
from time to time with the Beneficiary's consent, being referred to as the
"Lease") covering certain premises (the "Demised Premises") in the Property.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as follows:
1. Tenant covenants and agrees that the Lease now is and shall at all
times continue to be subject and subordinate in each and every respect to the
Deed of Trust. Tenant, upon request, shall execute and deliver any certificate
or other instrument which the Beneficiary may reasonably request to confirm said
subordination.
2. Tenant certifies that the Lease is presently in full force and effect
and unmodified and no base rent payable thereunder has been paid more than 1
(one) month in advance of its due date, and that no material default by Tenant
exists under the Lease which has continued beyond the expiration of any
applicable grace period.
<PAGE>
3. As long as Tenant is in compliance with the terms of this Agreement
and no default exists under the Lease which has continued beyond the expiration
of any applicable grace period, Beneficiary shall not name Tenant as a party
defendant to any action for foreclosure or other enforcement of the Deed of
Trust (unless required by law), nor shall the Lease be terminated by Beneficiary
in connection with, or by reason of, foreclosure or other proceedings for the
enforcement of the Deed of Trust, or by reason of a transfer of the landlord's
interest under the Lease pursuant to the taking of a deed or assignment in lieu
of foreclosure (or similar device), nor shall Beneficiary interfere with
Tenant's use or possession of the Demised Premises unless the holder of the
landlord's interest under the Lease (the "Landlord") would have had the right to
do so if the Deed of Trust had not been made, provided that the Person (as
defined in the Deed of Trust) acquiring, or succeeding to, the interests of the
Landlord as a result of any such action or proceeding, and such Person's
successors and assigns (any of the foregoing being hereinafter referred to as
the "Successor"), shall not be:
(a) subject to any credits, offsets, defenses or claims which Tenant may
have against any prior Landlord, except as permitted by the Lease or
by statute; or
(b) bound by base rent which Tenant might have paid for more than the
current month to any prior Landlord, unless such prepayment shall have
been made with Beneficiary's prior written consent; or
(c) liable for any act or omission of any prior Landlord; or
(d) bound by any covenant to undertake or complete any improvement to the
Demised Premises or the building forming a part of the Property except
as expressly required of the Landlord pursuant to the Lease; or
(e) required to account for any security deposit other than any security
deposit actually delivered to the Successor; or
(f) liable for any payment to Tenant of any sums, or the granting to
Tenant of any credit, in the nature of a contribution towards the cost
of preparing, furnishing or moving into the Demised Premises or any
portion thereof except as expressly required of the Landlord pursuant
to the Lease.
4. If the interest of the Landlord under the Lease shall be transferred
by reason of foreclosure or other proceedings for enforcement of the Deed of
Trust or pursuant to a taking of a deed in lieu of foreclosure (or similar
device), Tenant shall be bound to the Successor under all of the terms,
covenants and conditions of the Lease for the balance of the term thereof
remaining, with the same force and effect as if the Successor were the Landlord,
and Tenant hereby does (a) agree to attorn to
<PAGE>
the Successor, including Beneficiary if it be the Successor, as its Landlord,
(b) affirm its obligations under the Lease, and (c) agree to make payments of
all sums due under the Lease to the Successor, said attornment, affirmation and
agreement to be effective and self-operative without the execution of any
further instruments, upon the Successor succeeding to the interest of the
Landlord under the Lease. Tenant waives the provisions of any statute or rule
of law now or hereafter in effect that may give or purport to give it any right
or election to terminate or otherwise adversely affect the Lease or the
obligations of Tenant thereunder by reason of any foreclosure or similar
proceeding.
5. Tenant shall not change the terms, covenants, conditions and
agreements of the Lease in a manner which materially reduces the rent or other
charges payable or space demised thereunder or has a material adverse effect
upon the value of the landlord's interest thereunder without the express consent
in writing of the Beneficiary.
6. Tenant shall notify Beneficiary of any default of the Landlord under
the Lease which would entitle Tenant to cancel the Lease or abate the rent or
any additional rent payable thereunder, and agrees that Beneficiary shall have
the same rights to cure any such default as are afforded to the Landlord under
the Lease.
7. Anything herein or in the Lease to the contrary notwithstanding, in
the event that Beneficiary shall acquire title to the Property, Beneficiary
shall have no obligation, nor incur any liability, beyond Beneficiary's then
interest, if any, in the Property and Tenant shall look exclusively to such
interest of Beneficiary, if any, in the Property for the payment and discharge
of any obligations imposed upon Beneficiary hereunder or under the Lease and
Beneficiary is hereby released or relieved of any other liability hereunder and
under the Lease. Tenant agrees that with respect to any money judgment which
may be obtained or secured by Tenant against Beneficiary, Tenant shall look
solely to the estate or interest owned by Beneficiary in the Property and Tenant
will not collect or attempt to collect any such judgment but of any other assets
of Beneficiary.
8. Tenant acknowledges that it has notice that Landlord's interest under
the Lease and the rent and all other sums due thereunder have been assigned to
Beneficiary as part of the security for the note secured by the Deed of Trust.
In the event that Beneficiary notifies Tenant of a default under the Deed of
Trust and demands that Tenant pay its rent and all other sums due under the
Lease to Beneficiary, Tenant and Landlord agree that Tenant shall pay its rent
and all other sums due under the Lease to Beneficiary.
9. This Agreement may not be modified except by an agreement in writing
signed by the parties or their respective successors in interest. This Agreement
shall inure to the benefit of and be binding upon the parties hereto and their
respective legal representatives, successors and assigns.
<PAGE>
10. Nothing contained in this Agreement shall in any way impair or affect
the lien created by the Mortgage except as specifically set forth herein.
11. The Tenant agrees that this Agreement satisfied any condition or
requirement in the Lease relating to the granting of a non-disturbance agreement
by Beneficiary. Tenant further agrees that in the event there is any
inconsistency between the terms and provisions hereof and the terms and
provisions of the Lease dealing with non-disturbance by Beneficiary, the terms
and provisions hereof shall be controlling.
12. All notices, demands or requests made pursuant to, under, or by virtue
of this Agreement, must be in writing and mailed to the party to whom the
notice, demand or request is being made by certified or registered mail. For
such purposes, the addresses of the parties shall be as follows:
IF TO BENEFICIARY:
Government of Singapore Investment Corporation (Realty) Pte. Ltd.
-----------------------------------------------
-----------------------------------------------
-----------------------------------------------
IF TO LANDLORD:
Greenville Dallas Delaware, Inc.
c/o GSIC Realty Corporation
255 Shoreline Drive
Suite 600
Redwood City, California 94065
IF TO TENANT:
Fibermux Corporation
9310 Topanga Canyon Blvd.
Chatsworth, California 91311
(prior to the Commencement Date under the Lease)
or
Fibermux Corporation
21415 Plummer Street
Chatsworth, California 91311
(after the Commencement Date under the Lease)
With a copy to:
<PAGE>
ADC Telecommunications, Inc.
12501 Whitewater Drive
Minnetonka, Minnesota 55343
(Attn: Chief Financial Officer and Attn: General Counsel)
Any party may change the place that notices and demands are to be sent by
written notice delivered in accordance with this Agreement.
13. This Agreement shall be governed by the laws of the State of
California.
14. If any term of this Agreement or the application thereof to any person
or circumstances shall to any extent be invalid or unenforceable, the remainder
of this Agreement or the application of such term to any person or circumstances
other than those as to which it is invalid or unenforceable shall not be
affected thereby, and each term of this Agreement shall be valid and enforceable
to the fullest extent permitted by law.
IN WITNESS WHEREOF, the parties hereto have hereunto caused this
Agreement to be duly executed as of the day and year first above written.
Beneficiary:
GOVERNMENT OF SINGAPORE
INVESTMENT CORPORATION
(REALTY) PTE. LTD.
By_________________________________
Its___________________________
<PAGE>
Tenant:
ADC TELECOMMUNICATIONS, INC.,
a Minnesota corporation
By
--------------------------------
Its
-------------------------------
FIBERMUX CORPORATION,
a California corporation
By
--------------------------------
Steve Y. Kim, President
And By
---------------------------
Frederic T. Boyer, Chief
Financial Officer
Landlord:
GREENVILLE DALLAS DELAWARE, INC.
By
-------------------------------
Its
----------------------------
And By
---------------------------
Its
---------------------------
<PAGE>
State of California )
)SS.
County of Los Angeles )
On _____________________________, before me, _____________________________,
personally appeared Steve Y. Kim and Frederic T. Boyer, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person whose
name is subscribed to the within instrument and acknowledged to me that they
executed the same in their authorized capacities, and that by their signature on
the instrument the entity on behalf of which the persons acted executed the
instrument.
WITNESS my hand and official seal.
Signature:___________________________ (Seal)
State of California )
)SS.
County of Hennepin )
On ____________________________ , before me, ______________________________
personally appeared Steve Y. Kim and Frederic T. Boyer, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the persons whose
names are subscribed to the within instrument and acknowledged to me that they
executed the same in their authorized capacities, and that by their signatures
on the instrument the entity on behalf of which the persons acted executed the
instrument.
WITNESS my hand and official seal.
Signature: ___________________________ (Seal)
<PAGE>
State of California )
)SS.
County of ____________ )
On ________________, before me, _________________________, personally
appeared ______________________________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the persons whose
names are subscribed to the within instrument and acknowledged to me that they
executed the same in their authorized capacities, and that by their signatures
on the instrument the entity on behalf of which the persons acted executed the
instrument.
WITNESS my hand and official seal.
Signature: _________________________ (Seal)
<PAGE>
[Attach Singapore acknowledgment for Beneficiary]
<PAGE>
MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE ("Memorandum") is made as of December 18,1992,
among GREENVILLE DALLAS DELAWARE, INC., a Delaware corporation ("Landlord"), and
ADC TELECOMMUNICATIONS, INC., a Minnesota corporation, and FIBERMUX CORPORATION,
a California corporation (collectively, "Tenant").
AGREEMENT:
For valuable consideration, Landlord and Tenant agree as follows:
1. PREMISES. Landlord has leased to Tenant and Tenant has leased from
Landlord the Premises as set forth in the Lease dated as of the date of this
Memorandum, between Landlord and Tenant ("Lease"), such Premises consisting of
the building known as 21415 Plummer Street, Chatsworth, California, and certain
parking areas. Such building and certain of such parking areas are situated,
together with the building known as 21605 Plummer Street, Chatsworth, California
and certain other parking areas, on the land legally described on attached
Exhibit A.
2. INCORPORATION OF LEASE TERMS. This Memorandum is made subject to and
together with all of the terms, covenants and conditions contained in the Lease
and any amendments that may be made from time to time to the Lease. All of the
terms, covenants and conditions of the Lease and any amendments that may be made
from time to time to the Lease are incorporated in this Memorandum by this
reference as fully as if they had been set forth in this Memorandum. All
capitalized words used in this Memorandum that are not defined in this
Memorandum have the definitions given them in the Lease.
3. TERM; EXTENSION RIGHTS. The term of the Lease will commence on the
Commencement Date as defined in the Lease and will end, unless sooner terminated
as provided in the Lease, on the last day of the 72nd month after the
Commencement Date; provided, however, that Tenant has the right to extend the
term for two (2) additional consecutive six year periods, as set forth in the
Lease.
4. OTHER RIGHTS. Tenant has expansion rights and rights of first offer
regarding the building known as 21605 Plummer Street and certain parking areas
on the land legally described on attached Exhibit A, all as set forth in the
Lease.
<PAGE>
EXECUTION:
Landlord and Tenant have executed this Memorandum of Lease as of the date
first written above.
LANDLORD:
GREENVILLE DALLAS DELAWARE,
INC., a Delaware corporation
By /s/ S. Bradford Child
-------------------------------
Its
-------------------------------
And By
---------------------------
Its
------------------------------
TENANT:
ADC TELECOMMUNICATIONS,
INC., a Minnesota corporation
By /s/ LeRoy J. Morgan
-------------------------------
Its Vice President
------------------------------
FIBERMUX CORPORATION, a
California corporation
By /s/ Steve Y. Kim
-------------------------------
Steve Y. Kim, President
And By /s/ Frederic T. Boyer,
---------------------------
Frederic T. Boyer, Chief
Financial Officer
<PAGE>
State of California )
)SS.
County of SAN MATEO )
-----------
On JAN 13, 1993 , before me, ANNE MOK personally
---------------- -----------------------------
appeared S BRADFORD CHILD , personally known to me to be the persons
--------------------------
whose names are subscribed to the within instrument and acknowledged to me that
they executed the same in their authorized capacities, and that by their
signatures on the instrument the entity on behalf of which the persons acted
executed the instrument.
WITNESS my hand and official seal.
Signature: Anne Mok (Seal)
-------------------------
State of Minnesota )
)SS.
County of Hennepin )
On ________________, before me, _____________________________ personally
appeared __________________________, personally known to me or proved
to me on the basis of satisfactory evidence) to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed the
same in his authorized capacity, and that by his signature on the instrument the
entity on behalf of which the person acted executed the instrument.
WITNESS my hand and official seal.
Signature: _________________________ (Seal)
State of California )
)SS.
County of Los Angeles )
On 1-4-93 , before me, ____________________________ personally
----------------
appeared Steve Y. Kim and Frederic T. Boyer, personally known to me (or proved
to me on the basis of satisfactory evidence) to be the persons whose names are
subscribed to the within instrument and acknowledged to me that they executed
the
<PAGE>
same in their authorized capacities, and that by their signatures on the
instrument the entity on behalf of which the persons acted executed the
instrument.
WITNESS my hand and official seal.
Signature: /s/ Janice S. Parvin (Seal)
-------------------------
1-4-93
THIS INSTRUMENT WAS DRAFTED BY,
AND WHEN RECORDED RETURN TO:
Kenneth T. Tyra
Dorsey & Whitney
2200 First Bank Place East
Minneapolis, Minnesota 55402
<PAGE>
EXHIBIT A
Parcels B and C and the Southerly 111.5 of D of Parcel Map L.A. No. 5336, in the
City of Los Angeles, in the County of Los Angeles, State of California, as per
map filed in Book 168 Pages 61 and 62 of Parcel Maps, in the Office of the
County Recorder of Los Angeles, State of California.
Except 50 percent of all oil, gas, mineral, asphaltum and other hydrocarbon
substances underlying said property or that may be produced thereon or
therefrom, but without the right of entry above the depth of 500 feet below the
surface of said land, as reserved by Frank S. Lombardi, et al. in Deed recorded
March 1, 1956 in Book 50473 Page 258, Official Records.
<PAGE>
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
THIS AGREEMENT, dated as of JANUARY 4 , 1993 among THE
---------------------
DEVELOPMENT BANK OF SINGAPORE LTD., NEW YORK AGENCY ("Beneficiary"), GREENVILLE
DALLAS DELAWARE, INC., a Delaware corporation ("Landlord"), ADC
TELECOMMUNICATIONS, INC., a Minnesota corporation, and FIBERMUX CORPORATION, a
California corporation (collectively, "Tenant").
WITNESSETH:
WHEREAS, Beneficiary is the beneficiary under that certain deed of
trust dated as of May 25,1989, recorded May 31, 1989 as Instrument
No. 89-878400, Official Records, Office of the County Recorder of Los Angeles,
State of California, (said deed of trust, as it may be amended, increased,
renewed, modified, consolidated, replaced, combined, substituted, severed,
split, spread or extended, being hereinafter referred to as the "Deed of
Trust"), between Beneficiary and the trustor described therein (predecessor in
interest to the Landlord described above), which encumbers the land and the
buildings located at 21415 and 21605 Plummer Street, Los Angeles, California,
and more particularly described therein (the "Property").
WHEREAS, Tenant and Landlord have entered into a certain Lease dated
December 18, 1992 (such Lease, as it may be hereafter amended from time to time
with the Beneficiary's consent, being referred to as the "Lease"), covering
certain premises (the "Demised Premises") in the Property.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as follows:
1. Tenant covenants and agrees that the Lease now is and shall at all
times continue to be subject and subordinate in each and every respect to the
Deed of Trust. Tenant, upon request, shall execute and deliver any certificate
or other instrument which the Beneficiary may reasonably request to confirm said
subordination.
2. Tenant certifies that the Lease is presently in full force and effect
and unmodified and no base rent payable thereunder has been paid more than 1
(one) month in advance of its due date, and that no material default by Tenant
exists under the Lease which has continued beyond the expiration of any
applicable grace period.
<PAGE>
3. As long as Tenant is in compliance with the terms of this Agreement
and no default exists under the Lease which has continued beyond the expiration
of any applicable grace period, Beneficiary shall not name Tenant as a party
defendant to any action for foreclosure or other enforcement of the Deed of
Trust (unless required by law), nor shall the Lease be terminated by Beneficiary
in connection with, or by reason of, foreclosure or other proceedings for the
enforcement of the Deed of Trust, or by reason of a transfer of the landlord's
interest under the Lease pursuant to the taking of a deed or assignment in lieu
of foreclosure (or similar device), nor shall Beneficiary interfere with
Tenant's use or possession of the Demised Premises unless the holder of the
landlord's interest under the Lease (the "Landlord") would have had the right to
do so if the Deed of Trust had not been made, provided that the Person (as
defined in the Deed of Trust) acquiring, or succeeding to, the interests of the
Landlord as a result of any such action or proceeding, and such Person's
successors and assigns (any of the foregoing being hereinafter referred to as
the "Successor"), shall not be:
(a) subject to any credits, offsets, defenses or claims which Tenant may
have against any prior Landlord, except as permitted by the Lease or
by statute; or
(b) bound by base rent which Tenant might have paid for more than the
current month to any prior Landlord, unless such prepayment shall
have been made with Beneficiary's prior written consent; or
(c) liable for any act or omission of any prior Landlord; or
(d) bound by any covenant to undertake or complete any improvement to the
Demised Premises or the building forming a part of the Property
except as expressly required of the Landlord pursuant to the Lease;
or
(e) required to account for any security deposit other than any security
deposit actually delivered to the Successor; or
(f) liable for any payment to Tenant of any sums, or the granting to
Tenant of any credit, in the nature of a contribution towards the
cost of preparing, furnishing or moving into the Demised Premises or
any portion thereof except as expressly required of the Landlord
pursuant to the Lease.
4. If the interest of the Landlord under the Lease shall be transferred
by reason of foreclosure or other proceedings for enforcement of the Deed of
Trust or pursuant to a taking of a deed in lieu of foreclosure (or similar
device), Tenant shall be bound to the Successor under all of the terms,
covenants and conditions of the Lease for the balance of the term thereof
remaining, with the same force and effect as if the Successor were the Landlord,
and Tenant hereby does (a) agree to attorn to the Successor, including
Beneficiary if it be the Successor, as its Landlord, (b) affirm
<PAGE>
its obligations under the Lease, and (c) agree to make payments of all sums due
under the Lease to the Successor, said attornment, affirmation and agreement to
be effective and self-operative without the execution of any further
instruments, upon the Successor succeeding to the interest of the Landlord under
the Lease. Tenant waives the provisions of any statute or rule of law now or
hereafter in effect that may give or purport to give it any right or election to
terminate or otherwise adversely affect the Lease or the obligations of Tenant
thereunder by reason of any foreclosure or similar proceeding.
5. Tenant shall not change the terms, covenants, conditions and
agreements of the Lease in a manner which materially reduces the rent or other
charges payable or space demised thereunder or has a material adverse effect
upon the value of the landlord's interest thereunder without the express consent
in writing of the Beneficiary.
6. Tenant shall notify Beneficiary of any default of the Landlord under
the Lease which would entitle Tenant to cancel the Lease or abate the rent or
any additional rent payable thereunder, and agrees that Beneficiary shall have
the same rights to cure any such default as are afforded to the Landlord under
the Lease.
7. Anything herein or in the Lease to the contrary notwithstanding, in
the event that Beneficiary shall acquire title to the Property, Beneficiary
shall have no obligation, nor incur any liability, beyond Beneficiary's then
interest, if any, in the Property and Tenant shall look exclusively to such
interest of Beneficiary, if any, in the Property for the payment and discharge
of any obligations imposed upon Beneficiary hereunder or under the Lease and
Beneficiary is hereby released or relieved of any other liability hereunder and
under the Lease. Tenant agrees that with respect to any money judgment which
may be obtained or secured by Tenant against Beneficiary, Tenant shall look
solely to the estate or interest owned by Beneficiary in the Property and Tenant
will not collect or attempt to collect any such judgment but of any other assets
of Beneficiary.
8. Tenant acknowledges that it has notice that Landlord's interest under
the Lease and the rent and all other sums due thereunder have been assigned to
Beneficiary as part of the security for the note secured by the Deed of Trust.
In the event that Beneficiary notifies Tenant of a default under the Deed of
Trust and demands that Tenant pay its rent and all other sums due under the
Lease to Beneficiary, Tenant and Landlord agree that Tenant shall pay its rent
and all other sums due under the Lease to Beneficiary.
9. This Agreement may not be modified except by an agreement in writing
signed by the parties or their respective successors in interest. This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective legal representatives, successors and assigns.
<PAGE>
10. Nothing contained in this Agreement shall in any way impair or affect
the lien created by the Deed of Trust except as specifically set forth herein.
11. The Tenant agrees that this Agreement satisfied any condition or
requirement in the Lease relating to the granting of a non-disturbance agreement
by Beneficiary. Tenant further agrees that in the event there is any
inconsistency between the terms and provisions hereof and the terms and
provisions of the Lease dealing with non-disturbance by Beneficiary, the terms
and provisions hereof shall be controlling.
12. All notices, demands or requests made pursuant to, under, or by
virtue of this Agreement, must be in writing and mailed to the party to whom the
notice, demand or request is being made by certified or registered mail. For
such purposes, the addresses of the parties shall be as follows:
IF TO BENEFICIARY:
The Development Bank of Singapore, New York Agency
---------------------------------
---------------------------------
---------------------------------
IF TO LANDLORD:
Greenville Dallas Delaware, Inc.
c/o GSIC Realty Corporation
255 Shoreline Drive
Suite 600
Redwood City, California 94065
IF TO TENANT:
Fibermux Corporation
9310 Topanga Canyon Blvd.
Chatsworth, California 91311
(prior to the Commencement Date under the Lease)
or
Fibermux Corporation
21415 Plummer Street
Chatsworth, California 91311
(after the Commencement Date under the Lease)
<PAGE>
With a copy to:
ADC Telecommunications, Inc.
12501 Whitewater Drive
Minnetonka, Minnesota 55343
(Attn: Chief Financial Officer and Attn: General Counsel)
Any party may change the place that notices and demands are to be sent by
written notice delivered in accordance with this Agreement.
13. This Agreement shall be governed by the laws of the State of
California.
14. If any term of this Agreement or the application thereof to any
person or circumstances shall to any extent be invalid or unenforceable, the
remainder of this Agreement or the application of such term to any person or
circumstances other than those as to which it is invalid or unenforceable shall
not be affected thereby, and each term of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
IN WITNESS WHEREOF, the parties hereto have hereunto caused this
Agreement to be duly executed as of the day and year first above written.
Beneficiary:
THE DEVELOPMENT BANK OF
SINGAPORE, NEW YORK AGENCY
By _______________________________
Its ____________________________
<PAGE>
Tenant:
ADC TELECOMMUNICATIONS,
INC., a Minnesota corporation
By /s/ LeRoy J. Morgan
-------------------------------
Its Vice President
------------------------------
FIBERMUX CORPORATION, a
California corporation
By /s/ Steve Y. Kim
-------------------------------
Steve Y. Kim, President
And By /s/ Frederic T. Boyer
---------------------------
Frederic T. Boyer, Chief
Financial Officer
Landlord:
GREENVILLE DALLAS DELAWARE,
INC.
By /s/ S Bradford Child
-------------------------------
Its ____________________________
And By ___________________________
Its ____________________________
<PAGE>
State of California )
)SS.
County of Los Angeles )
On 1-4-93 , before me, ____________________________, personally
----------------
appeared Steve Y. Kim and Frederic T. Boyer, personally known to me (or proved
to me on the basis of satisfactory evidence) to be the persons whose names are
subscribed to the within instrument and acknowledged to me that they executed
the same in their authorized capacities, and that by their signatures on the
instrument the entity on behalf of which the persons acted executed the
instrument.
WITNESS my hand and official seal.
Signature: /s/ Janice S. Parvin (Seal)
-------------------------
State of Minnesota )
)SS.
County of Hennepin )
On ________________, before me, _____________________________, personally
appeared __________________________, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person whose name is subscribed to
the within instrument and acknowledged to me that he executed the same in his
authorized capacity, and that by his signature on the instrument the entity on
behalf of which the person acted executed the instrument.
WITNESS my hand and official seal.
Signature: _________________________ (Seal)
<PAGE>
State of California )
)SS.
County of SAN MATEO )
-----------
On JAN 13, 1993 , before me, ANNE MOK , personally
---------------- -----------------------------
appeared S. BRADFORD CHILD , personally known to me to be the persons
--------------------------
whose names are subscribed to the within instrument and acknowledged to me that
they executed the same in their authorized capacities, and that by their
signatures on the instrument the entity on behalf of which the persons acted
executed the instrument.
WITNESS my hand and official seal.
Signature: Anne Mok (Seal)
-------------------------
<PAGE>
[Attach Singapore acknowledgment for Beneficiary]
<PAGE>
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
THIS AGREEMENT, dated as of JANUARY 4 , 1993 among
--------------------- --
GOVERNMENT OF SINGAPORE INVESTMENT CORPORATION (REALTY) PTE. LTD., a Singapore
corporation ("Beneficiary"), GREENVILLE DALLAS DELAWARE, INC., a Delaware
corporation ("Landlord"), ADC TELECOMMUNICATIONS, INC., a Minnesota corporation,
and FIBERMUX CORPORATION, a California corporation (collectively, "Tenant").
WITNESSETH:
WHEREAS, Beneficiary is the beneficiary under that certain deed of
trust dated as of October 3, 1986, recorded January 26, 1988 as Instrument No.
88-109752, Official Records, Office of the County Recorder of Los Angeles, State
of California (said deed of trust, as it may be amended, increased, renewed,
modified, consolidated, replaced, combined, substituted, severed, split, spread
or extended, being hereinafter referred to as the "Deed of Trust"), between
Beneficiary and the trustor described therein (predecessor in interest to the
Landlord described above), which encumbers the land and the buildings located at
21415 and 21605 Plummer Street, Los Angeles, California, and more particularly
described therein (the "Property").
WHEREAS, Tenant and Landlord have entered into a certain Lease dated
December 18, 1992 (such Lease, as it may be hereafter amended from time to time
with the Beneficiary's consent, being referred to as the "Lease"), covering
certain premises (the "Demised Premises") in the Property.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as follows:
1. Tenant covenants and agrees that the Lease now is and shall at all
times continue to be subject and subordinate in each and every respect to the
Deed of Trust. Tenant, upon request, shall execute and deliver any certificate
or other instrument which the Beneficiary may reasonably request to confirm said
subordination.
2. Tenant certifies that the Lease is presently in full force and effect
and unmodified and no base rent payable thereunder has been paid more than 1
(one) month in advance of its due date, and that no material default by Tenant
exists under the Lease which has continued beyond the expiration of any
applicable grace period.
<PAGE>
3. As long as Tenant is in compliance with the terms of this Agreement
and no default exists under the Lease which has continued beyond the expiration
of any applicable grace period, Beneficiary shall not name Tenant as a party
defendant to any action for foreclosure or other enforcement of the Deed of
Trust (unless required by law), nor shall the Lease be terminated by Beneficiary
in connection with, or by reason of, foreclosure or other proceedings for the
enforcement of the Deed of Trust, or by reason of a transfer of the landlord's
interest under the Lease pursuant to the taking of a deed or assignment in lieu
of foreclosure (or similar device), nor shall Beneficiary interfere with
Tenant's use or possession of the Demised Premises unless the holder of the
landlord's interest under the Lease (the "Landlord") would have had the right to
do so if the Deed of Trust had not been made, provided that the Person (as
defined in the Deed of Trust) acquiring, or succeeding to, the interests of the
Landlord as a result of any such action or proceeding, and such Person's
successors and assigns (any of the foregoing being hereinafter referred to as
the "Successor"), shall not be:
(a) subject to any credits, offsets, defenses or claims which Tenant may
have against any prior Landlord, except as permitted by the Lease or
by statute; or
(b) bound by base rent which Tenant might have paid for more than the
current month to any prior Landlord, unless such prepayment shall
have been made with Beneficiary's prior written consent; or
(c) liable for any act or omission of any prior Landlord; or
(d) bound by any covenant to undertake or complete any improvement to the
Demised Premises or the building forming a part of the Property
except as expressly required of the Landlord pursuant to the Lease;
or
(e) required to account for any security deposit other than any security
deposit actually delivered to the Successor; or
(f) liable for any payment to Tenant of any sums, or the granting to
Tenant of any credit, in the nature of a contribution towards the
cost of preparing, furnishing or moving into the Demised Premises or
any portion thereof except as expressly required of the Landlord
pursuant to the Lease.
4. If the interest of the Landlord under the Lease shall be transferred
by reason of foreclosure or other proceedings for enforcement of the Deed of
Trust or pursuant to a taking of a deed in lieu of foreclosure (or similar
device), Tenant shall be bound to the Successor under all of the terms,
covenants and conditions of the Lease for the balance of the term thereof
remaining, with the same force and effect as if the Successor were the Landlord,
and Tenant hereby does (a) agree to attorn to
<PAGE>
the Successor, including Beneficiary if it be the Successor, as its Landlord,
(b) affirm its obligations under the Lease, and (c) agree to make payments of
all sums due under the Lease to the Successor, said attornment, affirmation and
agreement to be effective and self-operative without the execution of any
further instruments, upon the Successor succeeding to the interest of the
Landlord under the Lease. Tenant waives the provisions of any statute or rule
of law now or hereafter in effect that may give or purport to give it any right
or election to terminate or otherwise adversely affect the Lease or the
obligations of Tenant thereunder by reason of any foreclosure or similar
proceeding.
5. Tenant shall not change the terms, covenants, conditions and
agreements of the Lease in a manner which materially reduces the rent or other
charges payable or space demised thereunder or has a material adverse effect
upon the value of the landlord's interest thereunder without the express consent
in writing of the Beneficiary.
6. Tenant shall notify Beneficiary of any default of the Landlord under
the Lease which would entitle Tenant to cancel the Lease or abate the rent or
any additional rent payable thereunder, and agrees that Beneficiary shall have
the same rights to cure any such default as are afforded to the Landlord under
the Lease.
7. Anything herein or in the Lease to the contrary notwithstanding, in
the event that Beneficiary shall acquire title to the Property, Beneficiary
shall have no obligation, nor incur any liability, beyond Beneficiary's then
interest, if any, in the Property and Tenant shall look exclusively to such
interest of Beneficiary, if any, in the Property for the payment and discharge
of any obligations imposed upon Beneficiary hereunder or under the Lease and
Beneficiary is hereby released or relieved of any other liability hereunder and
under the Lease. Tenant agrees that with respect to any money judgment which
may be obtained or secured by Tenant against Beneficiary, Tenant shall look
solely to the estate or interest owned by Beneficiary in the Property and Tenant
will not collect or attempt to collect any such judgment but of any other assets
of Beneficiary.
8. Tenant acknowledges that it has notice that Landlord's interest under
the Lease and the rent and all other sums due thereunder have been assigned to
Beneficiary as part of the security for the note secured by the Deed of Trust.
In the event that Beneficiary notifies Tenant of a default under the Deed of
Trust and demands that Tenant pay its rent and all other sums due under the
Lease to Beneficiary, Tenant and Landlord agree that Tenant shall pay its rent
and all other sums due under the Lease to Beneficiary.
9. This Agreement may not be modified except by an agreement in writing
signed by the parties or their respective successors in interest. This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective legal representatives, successors and assigns.
<PAGE>
10. Nothing contained in this Agreement shall in any way impair or affect
the lien created by the Deed of Trust except as specifically set forth herein.
11. The Tenant agrees that this Agreement satisfied any condition or
requirement in the Lease relating to the granting of a non-disturbance agreement
by Beneficiary. Tenant further agrees that in the event there is any
inconsistency between the terms and provisions hereof and the terms and
provisions of the Lease dealing with non-disturbance by Beneficiary, the terms
and provisions hereof shall be controlling.
12. All notices, demands or requests made pursuant to, under, or by
virtue of this Agreement, must be in writing and mailed to the party to whom the
notice, demand or request is being made by certified or registered mail. For
such purposes, the addresses of the parties shall be as follows:
IF TO BENEFICIARY:
Government of Singapore Investment Corporation (Realty) Pte. Ltd
---------------------------------
---------------------------------
---------------------------------
IF TO LANDLORD:
Greenville Dallas Delaware, Inc.
c/o GSIC Realty Corporation
255 Shoreline Drive
Suite 600
Redwood City, California 94065
IF TO TENANT:
Fibermux Corporation
9310 Topanga Canyon Blvd.
Chatsworth, California 91311
(prior to the Commencement Date under the Lease)
or
Fibermux Corporation
21415 Plummer Street
Chatsworth, California 91311
(after the Commencement Date under the Lease)
With a copy to:
<PAGE>
ADC Telecommunications, Inc.
12501 Whitewater Drive
Minnetonka, Minnesota 55343
(Attn: Chief Financial Officer and Attn: General Counsel)
Any party may change the place that notices and demands are to by sent by
written notice delivered in accordance with this Agreement.
13. This Agreement shall be governed by the laws of the State of
California.
14. If any term of this Agreement or the application thereof to any
person or circumstances shall to any extent be invalid or unenforceable, the
remainder of this Agreement or the application of such term to any person or
circumstances other than those as to which it is invalid or unenforceable shall
not be affected thereby, and each term of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
IN WITNESS WHEREOF, the parties hereto have hereunto caused this
Agreement to be duly executed as of the day and year first above written.
Beneficiary:
GOVERNMENT OF SINGAPORE
INVESTMENT CORPORATION
(REALTY) PTE. LTD.
By _______________________________
Its ____________________________
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Tenant:
ADC TELECOMMUNICATIONS,
INC., a Minnesota corporation
By /s/ LeRoy J. Morgan
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Its Vice President
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FIBERMUX CORPORATION, a
California corporation
By /s/ Steve Y. Kim
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Steve Y. Kim, President
And By /s/ Frederic T. Boyer
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Frederic T. Boyer, Chief
Financial Officer
Landlord:
GREENVILLE DALLAS DELAWARE,
INC.
By /s/ S. Bradford Child
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Its ____________________________
And By ___________________________
Its ____________________________
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State of California )
)SS.
County of Los Angeles )
On 1-4-93 , before me, ____________________________, personally
----------------
appeared Steve Y. Kim and Frederic T. Boyer, personally known to me (or proved
to me on the basis of satisfactory evidence) to be the persons whose names are
subscribed to the within instrument and acknowledged to me that they executed
the same in their authorized capacities, and that by their signatures on the
instrument the entity on behalf of which the persons acted executed the
instrument.
WITNESS my hand and official seal.
Signature: /s/ Janice S. Parvin (Seal)
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State of Minnesota )
)SS.
County of Hennepin )
On ________________, before me, _____________________________, personally
appeared __________________________, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person whose name is subscribed to
the within instrument and acknowledged to me that he executed the same in his
authorized capacity, and that by his signature on the instrument the entity on
behalf of which the person acted executed the instrument.
WITNESS my hand and official seal.
Signature: _________________________ (Seal)
<PAGE>
State of California )
)SS.
County of SAN MATEO )
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On JAN 13, 1993 , before me, ANNE MOK , personally
---------------- -----------------------------
appeared S. BRADFORD CHILD , personally known to me to be the persons
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whose names are subscribed to the within instrument and acknowledged to me that
they executed the same in their authorized capacities, and that by their
signatures on the instrument the entity on behalf of which the persons acted
executed the instrument.
WITNESS my hand and official seal.
Signature: Anne Mok (Seal)
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